Poinciana Subdivision Declaration
By:
PREPARED BY AND RETURN TO:
DENNIS J. GETMAN, ESQ.
ASSOCIATION OF POINCIANA VILLAGES, INC.
401 WALNUT STREET
POINCIANA
KISSIMMEE, FLORIDA 34759-4329
INSTR # 2001165186
OR BK 04805 PG 0410
RECORDED 09/21/2001 11:49 AM
RICHARD M. WEISS CLERK OF COURT
POLK COUNTY
DEPUTY CLERK pvaughan
LARRY WHALEY 107P
OSCEOLA COUNTY, FLORIDA
CLERK OF CIRCUIT COURT
CL 2001137613 OR 1932/2808
DLB Dated 09/21/2001 Time 09:50:11
POINCIANA
SUBDIVISION DECLARATION
TABLE OF CONTENTS
1. Recitals
2. No Further Force or Effect
3. Definitions
4. Florida and Local Law
5. Term
6. Enforcement
7. Severability
8. Reservation of Rights
9. APV
9.1 Establishment of APV
9.2 Rights of APV
9.3 Assessments
9.4 Allocation of Assessments
9.5 Bulk Land Assessments
9.6 Surplus Assessments
9.7 Establishment of Assessments
9.8 Claim of Lien
9.9 Timing of Assessment Payment
9.10 Non-Payment of Assessments
9.11 Subordination of Lien
9.12 Exemption
9.12.2 Common Areas
10. Utility Fees
11. Fines, Suspension of Voting, Etc.
11.1 Right to Cure
11.2 Non-Monetary Defaults
11.3 Expenses
11.4 No Waiver
11.5 Rights Cumulative
11.6 Fines and Suspensions
12. Uniform General Requirements
12.1 Easements
12.1.1 Additional Temporary Easements
12.2 Plans and Specifications
12.3 Avatar's Approval Rights
12.4 Signs
12.5 Pets and Animals
12.6 Walls and Fences
12.7 Vehicles
12.8 Parking
12.9 No Repairs
12.10 Greenways and Waterways
12.11 Irrigation
12.12 Trash Containers for Commercial, Institutional, Multiple Family
12.13 Real Estate Offices
12.14 Commercial Use
12.15 Districts
12.16 Membership in Village Association
12.17 Subdivision of Land
13. Residential Dwellings
13.1 Garbage and Trash
13.2 Pets
13.3 No Outside Storage
13.4 Garages
13.5 Flag Lot
13.5.1 Tenants In Common
13.5.2 Sharing of Expense
13.5.3 Failure to Maintain
13.5.4 Exceptions
14. Commercial
14.1 Parking
14.2 Required Paving and Construction
14.3 Use Restrictions for Areas Zoned Commercial
14.4 Party Walls
14.5 Modification or Waiver
POINCIANA SUBDIVISION DECLARATION ASSOCIATION OF POINCIANA VILLAGES, INC. (the " APV "), a Florida not-for-profit association hereby makes this Poinciana Subdivision Declaration (" Declaration ") respecting the real property described in Exhibit A (the " Poinciana Subdivision "). Avatar Properties Inc. (" Avatar ") joins in this Declaration to show its consent to the same.
RECITALS:
A. Avatar in its own name or under its former name, GAC Properties, Inc., recorded (1) the various deeds of restrictions described on Exhibit B attached hereto and made a part hereof in the Public Records of Polk County, Florida (collectively, the "Original Polk Deeds of Restriction ") and (2) the various deeds of restrictions described on Exhibit B attached hereto and made a part hereof in the Public Records of Osceola County, Florida (collectively, the " Original Osceola Deeds of Restriction "). B. The Original Polk Deeds of Restriction and the Original Osceola Deeds of Restriction (collectively, the " Original Deeds of Restriction ") were restated and consolidated by that certain Restated Declaration of Restrictions (the " Restated Declaration ") recorded in Polk County in Official Records Book 4510 at Page 1454 and in Osceola County in Official Records Book 1767 at Page 297. The Restated Declaration replaced entirely the Original Deeds of Restriction.
C. The Restated Declaration governs the community known as Poinciana Subdivision, which is legally described on Exhibit A attached hereto and made a part hereof.
D. Pursuant to Section 5 of the Restated Declaration, the APV, by majority vote of the entire Board of Directors, has decided to amend and restate the Restated Declaration in its entirety by this Declaration. NOW THEREFORE, the APV does establish the following restrictions for the Poinciana Subdivision:
1. Recitals .
All of the foregoing Recitals are true and correct.
2. No Further Force or Effect . The Original Deeds of Restriction and the Restated Declaration are of no further force or effect as the same are replaced entirely by this Declaration.
3. Definitions .
In addition to the terms defined elsewhere in this Declaration, all initially capitalized terms herein shall have the following meanings:
3.1 " APV " shall mean Association of Poinciana Villages, Inc.
3.2 " Articles " shall mean the APV's Amended and Articles of Incorporation attached hereto as Exhibit C .
3.3 " Assessments "shall mean any assessments made in accordance with this Declaration and as further defined in Section 9 hereof.
3.4 " Avatar " shall mean Avatar Properties Inc., a Florida corporation, its successors, and assigns.
3.5 " APV Board " shall mean the Board of Directors of the APV.
3.6 " Bulk Land " shall mean any tract of land (whether or not subdivided) which has none of the following: (i) improvements; (ii) overall community drainage; and (iii) water and sewer availability. By way of example, if a Lot has either water and sewer availability or overall drainage, it is not Bulk Land.
3.7 " By-Laws " shall mean the APV's By-Laws attached hereto as Exhibit D .
3.8 " Common Areas " shall mean all real property interests and personality within Poinciana Subdivision designated as Common Areas from time to time by Plat or recorded amendment to this Declaration and provided for, owned, leased by, or dedicated to, the common use and enjoyment of the Owners within Poinciana Subdivision.
3.9 " County " shall mean Polk or Osceola County, as applicable.
3.10 " Criteria " shall mean the Design Control Board Criteria of the APV.
3.11 " DCB " shall mean the Design Control Board of the DCB.
3.12 " Flag Lot " shall refer to any of the various types of Flag Lots described in Section 13.5 hereof.
3.13 " Lender " shall mean any federally insured savings and loan association or bank, insured by the Federal Savings and Loan Insurance Corporation, or Federal Deposit and Insurance Corporation, Mortgage Bankers, licensed Mortgage Brokers (or person or entity holding mortgage through efforts of a licensed Mortgage Broker), Avatar and Parkway Mortgage Company, Inc. and their successors and assigns, holding a first mortgage on a Lot.
3.14 " Lot " shall mean any lot shown on a plat.
3.15 " Owner " shall mean the owner of a lot.
3.16 " Poinciana Subdivision " shall mean the real property described on Exhibit Aattached hereto including future property subject to plats incorporating this Declaration.
3.17 " Utility Availability Fee " shall have the meaning set forth in Section 10 herein.
3.18 " Village " shall mean each subdivision of Poinciana Subdivision. Currently Poinciana Subdivision is divided into ten (10) Villages. The Villages are described on Exhibit E attached hereto and made a part hereof.
3.19 " Village Association " shall mean the homeowners association governing each Village.
4. Florida and Local Law . All restrictive covenants, listed and/or contained herein are subject, in all instances, to compliance with State of Florida applicable County health ordinances, restrictions and regulations, zoning regulations or other established pertinent restrictions, and in particular when the said State and County requirements exceed the requirements of the restrictions contained herein. The laws of the State of Florida and applicable County as well as the rules and regulations of their administrative agencies now or hereafter in effect with regard to sewage disposal, water supply and sanitation are hereby incorporated herein and made a part hereof.
5. Term . These restrictive covenants, easements, reservations and requirements upon the lands within the Poinciana Subdivision and any amendments and additions thereto, shall run with the land and remain in full force and effect until January 1, 2012, at which time they shall be automatically extended for successive periods of ten (10) years unless by majority vote of the entire APV Board on January 1, 2012, or at the end of each successive ten (10) year period thereafter, the APV Board agrees to change said covenants, easements, reservations and requirements upon said lands in whole or in part for the best interests of the Poinciana Subdivision, at which time modifications thereto shall be evidenced by recording in the office of the Clerk of the Circuit Court an Amendment to the Deed of Restrictions reflecting such modifications. Notwithstanding the foregoing, the APV Board hereby declares that from and after January 1, 2012 the APV Board may amend this Declaration at any time upon a majority vote of the APV Board. Nothing in this Section shall be construed to prohibit the APV Board from amending this Declaration at any time upon a vote of two-thirds (2/3) of the APV Board. All amendments shall be recorded in both the public records of Polk County and Osceola County.
6. Enforcement . Enforcement of this Declaration shall be by proceedings at law or in equity against any person or persons violating or attempting to violate any covenant of this Declaration. Enforcement of this Declaration may be either to restrain violations or to recover damages, or both. The prevailing party shall be entitled to recover, in addition to cost and disbursements allowed by law, such sums as the Court may adjudge to be reasonable for the service of the prevailing party's attorney.
7. Severability . These covenants and restrictions are severable and the invalidation of one shall not invalidate any other covenant hereof, and each covenant shall be independent to such extent.
8. Reservation of Rights . Avatar reserves the right to create one or more additional Villages upon property owned by Avatar or its assignees or designees. Such Villages shall be subject to such use restrictions and setbacks as deemed appropriate by Avatar or its assignees or designees and recorded in the Public Records of the applicable County. Without limiting the foregoing, any property made subject to a new Village shall not be subject to the use restrictions set forth in this Declaration except and to the extent so designated by document recorded in the Public Records of the applicable County. The APV and Avatar or its assignee or designee agree to negotiate in good faith to what extent, if any, the APV will provide services to such property and be subject to Assessment by the APV based on the impact of such development.
9. APV .
9.1 Establishment of APV . As an additional covenant and condition to the ownership to lands in Poinciana Subdivision, as now platted, and as to lands in any subsequent plats of Poinciana Subdivision filed by Avatar, Avatar has established the APV, a master owners association, which has under its umbrella the various Village Associations. The APV, this Declaration and the APV Articles affect all properties within the Poinciana Subdivision and all present and future Owners agree to be bound by this Declaration and the APV Articles, for themselves and as a charge and duty of each lot owned, or to be owned by them.
9.2 Rights of APV . APV shall have the right to own and take title to common areas not previously dedicated and accepted by the public such as roads, streets and other ways, greenways, drainage ways, retardation areas, open space and the like, and to designate improvements to be constructed on any of such lands which it may own at such time, or subsequently acquire. The APV shall have the right to assess the costs of construction of such improvements to the Owners of all Lots in Poinciana Subdivision and subsequent annexations and plats thereto. Except for streets and roadways dedicated to the Public, the APV or an improvement district, shall always assume the responsibility for maintenance of "Greenways" and "Retardation Areas", as set forth on the respective Plats of Poinciana Subdivision filed with the applicable County, and pursuant thereto, shall have the right to reimbursement therefor in accordance with the provisions hereof, to make Assessments on all of the Lots in the Poinciana Subdivision to cover the costs thereof, all as further provided below.
9.3 Assessments . Each Owner, by acceptance of a deed or instrument of convey-ance for the acqui-sition of title in any manner (whether or not so expressed in the deed), including any purchaser at a judicial sale, shall hereafter be deemed to have covenanted and agreed to pay to the APV at the time and in the manner required by the APV Board, assessments or charges and any special assessments as are fixed, established and collected from time to time by the APV (collectively, the " Assessments "). The Assessments levied by the APV shall be used for, among other things, the purpose of promoting the recreation, health, safety and welfare of the residents of Poinciana Subdivision, and in particular for the improvement and maintenance of the Common Areas and any easement in favor of the APV. The Assessments levied by the APV Board shall be used exclusively for the purposes set forth in this Declaration, the Articles and the By-Laws and for the benefit of the Owners as an entire community, the improvements, maintenance, repair and replacement of properties, services and activities and facilities devoted to this purpose and applicable to the use and enjoyment of the Common Areas.
9.4 Allocation of Assessments . All Assessments shall be fairly apportioned over all the Lots in the Poinciana Subdivision. The APV Board shall determine the total amount of Assessments required, including operational items such as insurance, repairs, maintenance and other operating expenses, as well as charges to cover any deficiencies from prior years, capital improvements and reserves approved by the APV Board. The total annual Assessments required and any supplemental requirements shall be allocated between, assessed to and paid in accordance with the following:
9.4.1 Subject to the following, all Owners (other than Bulk Land Owners or Owners subject to special assessment agreement with the APV) shall be assessed equally for costs and expenses of the APV related to any uniform overall community function, activity, service, facility or improvement of the APV which is for the specific benefit of all Villages.
9.4.2 Assessments covering special costs and expenses of the APV for any function, activity, services, facility or improvements used by a portion of a Village or one or more Villages but not by all Villages shall be assessed to those Owners directly receiving the benefit thereof but not to Owners not receiving such benefit. The APV Board shall determine, using reasonable judgment, the amount assessed and what Owners are subject to such special Assessments.
9.4.3 Solivita (Village X) has elected, at its own expense, to maintain all of its common areas, greenways and drainage facilities, and provide or supply its own patrol, architectural review (which supplements the Criteria), enforcement of restrictions, recreational facilities, improvements and association type operations within the Village. Owners within Solivita are subject to Assessments by the APV pursuant to that certain Village Ten Assessment Agreement recorded in Official Record Book 04510 at Page 1739 in the Public Records of Polk County. 9.4.4 For any undeveloped Village or portion thereof, the Owner shall be assessed by the APV as a Bulk Land Owner.
9.5 Bulk Land Assessments . Each Bulk Land Owner shall be liable to pay its prorata share of the Assessments levied each year by the APV respecting Bulk Land (" Bulk Land Assessments "). The total amount of all Bulk Land Assessments shall be equal to the annual budget adopted by the APV multiplied by a fraction, the numerator of which shall be the aggregate value of all Bulk Land owned by the Bulk Land Owners as assessed by the applicable county tax assessor for the prior calendar year, and the denominator of which shall be the value of all land subject to the Declaration (other than land owned by Avatar) as assessed by the applicable county tax assessor for the prior calendar year. Each Bulk Land Owner's prorata share of the Bulk Land Assessment shall based upon the total acreage of Bulk Land owned by each respective Bulk Land Owner subject to the Declaration, divided by the total acreage of land owned by all Bulk Land Owners.
9.6 Surplus Assessments . Any surplus Assessments collected by the APV may be allocated towards the next year's Assessments. Under no circumstances shall the APV be required to pay surplus Assessments to Owners.
9.7 Establishment of Assessments . Assessments shall be established in accordance with the following procedures:
9.7.1 Assessments shall be established by the adoption of a twelve (12) month operating budget by the APV Board. The budget shall be in the form required by Section 720.303(6) of the Florida Statutes, as amended from time to time. Written notice of the amount and date of commencement thereof shall be given to each Owner not less than ten (10) days in advance of the due date of the first installment thereof. Notwithstanding the foregoing, the budget may cover a period of less than twelve (12) months if the first budget is adopted mid-year or in order to change the fiscal year of the APV.
9.7.2 The APV may establish, from time to time, by resolution, rule or regulation, or by delegation to an officer or agent, including, a professional management company, use fees. The sums established shall be payable by the Owner utilizing the service or facility as determined by the APV.
9.8 Claim of Lien . Each Owner, by acceptance of a deed or instrument of conveyance for the acquisition of title to a Lot, shall be deemed to have covenanted and agreed that the Assessments, and/or other charges and fees set forth herein, together with interest, late fees, costs and reasonable attorneys' fees and paraprofessional fees at all levels of proceedings including appeals, collections and bankruptcy, shall be a charge and continuing lien in favor of the APV encumbering the Lot and all personal property located thereon owned by the Owner against whom each such Assessment is made. The lien is effective from and after recording a Claim of Lien in the Public Records stating the legal description of the Lot, name of the Owner, and the amounts due as of that date, but shall relate back to the date that this Declaration is recorded. If such Assessments are not paid, the Claim of Lien may be foreclosed after 90 days after same is outstanding, in the same manner as provided under Florida law for the foreclosure of mortgages.
9.9 Timing of Assessment Payment . All Assessments shall be paid by Lot Owners as established annually by the APV Board and shall be due and payable to the APV in advance on or before the first day of each calendar year. The APV Board, in its discretion, may allow payments of Assessments on a monthly or other basis
9.10 Non-Payment of Assessments . If any Assessment is not paid within fifteen (15) days (or such other period of time established by the APV Board) after the due date, a late fee of $25.00 per month (or such lesser or greater amount established by the APV Board from time to time), together with interest in an amount equal to the maximum rate allowable by law (or such lesser rate established by the APV Board), per annum, beginning from the due date until paid in full, may be levied. The late fee shall compensate the APV for administrative costs, loss of use of money, and accounting expenses. The APV may, at any time thereafter, bring an action at law against the Owner personally obligated to pay the same, and/or foreclose the lien against the Lot and improvements thereon, or both. The APV shall not be required to bring such an action if it believes that the best interests of the APV would not be served by doing so. There shall be added to the Assessment all costs expended in preserving the priority of the lien and all costs and expenses of collection, including attorneys' fees and paraprofessional fees, at all levels of proceedings, including appeals, collection and bankruptcy. No Owner may waive or otherwise escape liability for Assessments provided for herein by non use of, or the waiver of the right to use the Common Areas or by abandonment of a Lot.
9.11 Subordination of Lien . The lien for Assessments shall be subordinate to a bona fide first mortgage held by a Lender on any Lot if the mortgage is recorded in the Public Records prior to the Claim of Lien. The lien for Assessments shall not be affected by any sale or transfer of a Lot, except in the event of a sale or transfer of a Lot pursuant to a foreclosure (or by deed in lieu of foreclosure or otherwise) of a bona fide first mortgage held by a Lender, in which event, the acquirer of title, its successors and assigns, shall not be liable for such sums secured by a lien for Assessments encumbering the Lot or chargeable to the former Owner of the Lot, which became due prior to such sale or transfer. However, any such unpaid Assessments for which such acquirer of title is not liable may be reallocated and assessed to all Owners (including such acquirer of title) as a part of the operating costs of the APV included within Assessments. Any sale or transfer pursuant to a foreclosure (or by deed in lieu of foreclosure or otherwise) shall not relieve the Owner from liability for, nor the Lot from the lien of any Assessments made thereafter. Nothing herein contained shall be construed as releasing the party liable for any delinquent Assessments from the payment thereof, or the enforcement of collection by means other than foreclosure.
9.12 Exemption . The APV Board shall have the right to exempt any portion of Poinciana Subdivision subject to this Declaration from the Assessments. The APV Board has exempted all Lots owned by Avatar from Assessments until such Lots are conveyed to a individual purchaser of a Lot. This Section shall not be amended by any party or entity without the prior written approval of Avatar. The following property is also exempt:
9.12.1 Any easement or other interest therein dedicated and accepted by the local public authority and devoted to public use.
9.12.2 Common Areas .
9.12.3 Land and improvements owned by governmental entities pursuant to Florida law. 10. Utility Fees . With respect to the real property described on Exhibit F and all of Poinciana Subdivision in Polk County other than Village Ten, commencing one year after the date a Lot buyer agrees to purchase a Lot, the Owner will be responsible for payment of a utility availability fee to Avatar (" Utility Availability Fee "). This Utility Availability Fee is to help Avatar defray the costs and expenses involved in making utility service available to the Lot. The Utility Availability Fee is presently estimated at $9.00 per month per Lot, subject to adjustment in relation to actual costs and expenses and the Utility Availability Fee shall continue until the utility facilities have been turned over to a utility company. The extent of the utility maintenance program and the amounts expended shall be within the sole discretion of Avatar. This Utility Availability Fee shall constitute a lien against the assessed Lot, and if unpaid, may be collected and enforced by any legal remedies available to Avatar with the Lot Owner being liable for reasonable costs, including attorney's fees. The Lot Owner's responsibility for the Utility Availability Fee shall survive delivery of the deed.
11. Fines, Suspension of Voting, Etc .
11.1 Right to Cure. Should any Owner do any of the following:
11.1.1 Fail to perform its responsibilities as set forth herein or otherwise breach the provisions of the Declaration; or
11.1.2 Cause any damage to any improvement or Common Areas; or
11.1.3 Impede the APV from exercising its rights or performing its responsibilities hereunder; or 11.1.4 Undertake unauthorized improvements or modifications to a Lot or to the Common Areas. The APV, after reasonable prior written notice, shall have the right, through its agents and employees, to cure the breach, including, but not limited to, the entering upon the Lot causing the default to be remedied and/or the required repairs or maintenance to be performed, or as the case may be, remove unauthorized improvements or modifications. The cost thereof, plus reasonable overhead costs and attorneys' fees and paraprofessional fees at all levels including appeals, collections and bankruptcy, incurred shall be assessed against the Owner as an Assessment applicable just to such Lot.
11.2 Non-Monetary Defaults . In the event of a violation by any Owner of any provisions of this Declaration, other than the nonpayment of any Assessment or other monies, the APV shall notify the Owner of the violation, by written notice. If such violation is not cured as soon as practicable and in any event within seven (7) days after such written notice, the party entitled to enforce same may, at its option:
11.2.3 Commence an action to enforce the performance on the part of the Owner or to enjoin the violation or breach or for equitable relief as may be necessary under the circumstances, including injunctive relief; and/or
11.2.4 Commence an action to recover damages; and/or
11.2.5 Take any and all action reasonably necessary to correct the violation or breach.
11.3 Expenses . All expenses incurred in connection with the violation or breach, or the commencement of any action against any Owner, including reasonable attorneys' fees and paraprofessional fees at all levels including appeals, collections and bankruptcy, shall be assessed against the Owner, as an Assessment against the individual Lot, and shall be immediately due and payable without further notice.
11.4 No Waiver . The failure to enforce any right, provision, covenant or condition in this Declaration, shall not constitute a waiver of the right to enforce such right, provision, covenant or condition in the future.
11.5 Rights Cumulative . All rights, remedies, and privileges granted to the APV and/or the DCB pursuant to any terms, provisions, covenants or conditions of this Declaration, or Criteria shall be deemed to be cumulative, and the exercise of any one or more shall neither be deemed to constitute an election of remedies, nor shall it preclude any of them from pursuing such additional remedies, rights or privileges as may be granted or as it might have by law.
11.6 Fines and Suspensions . Except to the extent prohibited by law, in the event of a violation of the provisions contained herein by an Owner or a person acting by, through, or under an Owner, the Rules and Regulations of the APV, the Criteria, or other rules and regulations promulgated by the APV, the APV shall also have the right to levy reasonable fines or suspend the privileges of the Owner or any person acting by, through, or under an Owner.
11.6.1 The APV may suspend the voting rights of any Owner for the nonpayment of regular annual Assessments as provided by law.
11.6.2 Further, the APV may suspend the rights of an Owner to use Common Areas of the APV so long as such suspension does not impair vehicular and pedestrian ingress and egress from the applicable Lot, including the right to park.
11.6.3 Each fine shall be an Assessment against the applicable Lot and enforceable pursuant to the provisions of this Declaration and the By-Laws. Each day of an Owner's failure to comply with this Declaration, the Rules and Regulations, the Criteria, or other rules and regulations promulgated by the APV shall be treated as a separate violation and, be subject to a separate fine. Fines shall be in such reasonable and uniform amounts as the APV shall determine.
11.6.4 Suspensions and fines shall be imposed in the manner provided in Section 720.305 of the Florida Statutes, as amended from time to time. The APV Board shall have the authority to promulgate additional procedures from time to time.
12. Uniform General Requirements . The following requirements are applicable to Villages One through Nine and are not applicable to Village Ten (Solivita). Village Ten is subject to the Solivita Declaration recorded in Official Records Book 04510 at Page 1576 in the Public Records of Polk County.
12.1 Easements . Easements and rights-of-way are hereby expressly reserved for the creation, construction and maintenance of utilities, such as gas, water, telephone, telegraph, electricity, sewers, storm drains, public, or quasi-public, as well as for any public or quasi-public utility or function deemed necessary and/or expedient for the public health and welfare. Avatar reserves the exclusive use of such easements and rights-of-way for purposes of cable television, including, but not limited to, the exclusive right to erect, install, construct, repair, replace, reconstruct, maintain and retain in, on, over, under, upon, across such easements and rights-of-way for cable television systems. Overhead service wires are permitted across corners of rear yards where side Lot lines do not join in the rear at a common corner.
12.1.1 Additional Temporary Easements . In addition to the above, there shall be an additional temporary construction easement abutting the exterior sides of each easement herein granted. Said temporary construction easement shall be for the purpose of providing access during the construction of utility improvements and shall terminate upon the completion of improvements. Said easement shall be of unlimited width, except that same shall approach no closer than five (5) feet to any structure existing at time of construction.
12.2 Plans and Specifications . Plans and specifications for all residential, institutional or commercial structures including, but not limited to, driveways, and paving must be submitted to the DCB for written approval as to quality of workmanship and materials, harmony of external design, aesthetic effect, size and existing structures. Without limiting the foregoing, the DCB must approve all building and site plans prior to the commencement of any construction. The DCB has pre-approved all initial construction for all improvements located within the boundaries of Village Ten. The DCB shall not unreasonably withhold any approval of proposed changes to initial construction sought by an Owner within Village Ten once such changes have been approved by the Village Ten Architectural Review Committee. Building permits must be obtained from the proper County authorities.
12.3 Avatar's Approval Rights . Avatar or its designated agent shall have a right to review and approve all plans and specifications submitted to the DCB. The failure of Avatar or its designated agent to give notice of its disapproval of plans and specifications submitted to the DCB within thirty (30) days after receipt thereof shall be deemed to constitute the approval thereof.
12.4 Signs . No signs of any kind shall be exhibited in any way on or above the property of Poinciana Subdivision, including any and all signs to be painted on any side or face of structure, without written approval from Avatar or its duly authorized agent and the DCB. Avatar reserves the right to approve the erection of certain signs on a temporary basis which would vary from the usual norm of other signs. All other signs shall be in conformance with the Poinciana Signage Requirements of the DCB.
12.5 Pets and Animals . No husbandry of either animals or fowls shall be conducted or maintained in Poinciana Subdivision; provided, however, that dogs, cats and other household pets, not to exceed two (2) per household, may be kept on the Lots subject to such rules and regulations as may be adopted by the APV Board, so long as they are not kept, bred or maintained for commercial purposes.
12.6 Walls and Fences . No fence, hedge, wall or other dividing instrumentality shall be erected or maintained on any Lot of Poinciana Subdivision which shall restrict or block the view from an adjoining Lot or which shall materially impair the continuity of Poinciana Subdivision. For this purpose, a residential hedge, fence, wall or other dividing instrumentality shall be maintained at no greater height than six (6) feet, and no wall or fence shall be erected or placed within the front setback lines of any Lot, unless said wall or fence shall be ornamental and a desirable feature and shall not in any manner impair the general scheme of Poinciana Subdivision. The APV Board may grant fencing variances for Flag Lots. Notwithstanding the above, Avatar may, in its discretion, approve minor projections above the restricted heights for architectural features. Innovative fencing for commercial, institutional and recreation areas may exceed six (6) feet with the approval of the APV Board. No wall or fence of any kind whatsoever shall be constructed on any Lot until after the height, type, design and location thereof shall have been approved in writing by Avatar, or its duly authorized agent and the DCB. The failure of Avatar or its duly authorized agent to give notice of its approval of any wall or fence submitted to the DCB within thirty (30) days after receipt thereof shall be deemed to constitute the disapproval thereof.
12.7 Vehicles . No house trailer, mobile or motor home (except in Village Nine and other areas designated for mobile homes), camper, recreation vehicle, boat, boat trailer, bus, inoperable vehicle, implement of husbandry, or the like shall be allowed on any residential Lots, roadways, driveways or Common Areas. No utility trailer, tractor, truck tractor, semitrailer, road roller, commercial van or other vehicle with an axle carrying capacity of one (1) ton or greater displaying commercial lettering or logo (s) of any kind or having visible utility/tool rack (s) or box (es) (oversized vehicles), flatbed trucks or box trucks of any size, dumpster, pole trailer, caterpillar, bulldozer, crane, backhoe, or the like shall be allowed on any of the residential Lots unless the same is present in the actual continuous construction, repair, or development of structures or property, or the temporary servicing of or delivery to homes, and only for the duration of such activity. No Lot shall be used as a junk yard or auto graveyard. No other vehicle shall be used for living purposes, except as allowed in areas subsequently zoned for mobile homes. No parking is permitted on the lawn or unpaved area of any Lot. Notwithstanding the foregoing, the APV may issue a three (3) day permit, on a case by case basis, for leisure styled vehicles such as boats, campers, recreation vehicles and the like. Such permits may only be issued once every seven (7) day period.
12.8 Parking . No parking is permitted on the lawn or unpaved area of any Lot. No cars shall be parked on a residential Lot except with rear or front car bumper facing garage or carport except where a Lot has a home with a circular driveway.
12.9 No Repairs . General repair or overhaul of any automobile, truck, recreation vehicle, motorcycle, or any other motorized vehicle, shall not be performed at any Lot or upon any Common Area within Poinciana Subdivision. Minor repair and adjustment, washing or polishing of any vehicle is permitted at the Lot subject to applicable Florida law.
12.10 Greenways and Waterways . The owners and occupants of land in the Poinciana Subdivision who have continuous ownership shall have an easement in common for the use of parks, greenways, retardation areas and canal waterways. No structures shall be constructed, dug, or excavated into any of the greenways, retardation areas, or canals until plans for same have been approved in writing by Avatar, or its duly authorized agent and the DCB. Likewise, no vehicle or structure shall be placed in the waterways adjacent to or within the Poinciana Subdivision which will impede navigation or restrict freedom of movement of other vehicles. No boat, houseboat, or other vessel shall be used as a place of abode or dwelling within the Poinciana Subdivision.
12.11 Irrigation . All buildings shall be connected at the Owner's expense with central water and sewer utilities within ninety (90) days after date of availability. Incidental utility or service structures, and detached garages, shall not be required to make such utility connections. However, wells may be maintained for outside use, including watering of lawns, swimming pools, etc., subject to approval of duly constituted public health authorities and/or public utility.
12.12 Trash Containers for Commercial, Institutional, Multiple Family . All trash container areas and yards for commercial, institutional and multiple family buildings will be screened visually and in a manner which will dampen associated noise. This should be accomplished either with dense shrubbery such as hedges or with wood fences or landscaped masonry walls.
12.13 Real Estate Offices. No property shall be used for a real estate office, except only upon the written approval of Avatar.
12.14 Commercial Use . No residential Lot shall be used for commercial purposes of any kind that result in noise, increased traffic, nuisance or otherwise disrupt the residential character of a neighborhood; provided, however, the APV may grant a special exception, upon the application duly made. No Lot granted a special exception for commercial use shall be used exclusively for commercial purposes. A combination of residential and commercial usage is required. Signage shall be in accordance with Section 12.4 of this Declaration.
12.15 Districts . Avatar or the APV Board may form or cause to be formed one or several general or special improvement or service districts for the purpose of providing for the construction of street lighting, fire districts, pedestrian ways, common parking areas, and for the care and maintenance of common open spaces, parks, greenways, drainage ways, pedestrian ways and beautification. These districts shall arrange for and defray costs of said care and maintenance by equitable Assessments on Owners. Such districts may cease to exist if at any time any municipality, County, or other public body or improvement district shall assume said care and maintenance.
12.16 Membership in Village Association . At such time as a deed is delivered to the Owner of a Lot, the Owner of the Lot shall automatically become a member of the Village Association for the Village in which the Lot is located if such association has previously been created by Avatar for such purpose. The jurisdictional boundaries of the Village Association may include any areas in Poinciana Subdivision or annexations thereto specifically designated by Avatar.
12.17 Subdivision of Land . No Lots, tracts, or parcels set forth in the recorded plat or subsequent recorded plats of Poinciana Subdivision can be divided or re-subdivided unless all the divided portions thereof are added to the adjacent Lots, tracts, or parcels to create larger adjacent contiguous ownerships, except with the written consent of Avatar. Consent shall not be unreasonably withheld. It is further provided that no Lots, tracts, or parcels be subdivided so as to create a violation of any of the restrictions herein established. In the event a Lot is increased in size by the addition of a portion of the adjacent Lot, any encroachment on the utility easements in the interior of the increased Lot is hereby waived and such easement is hereby deemed removed to the perimeter of said increased Lot and original easement heretofore reserved is hereby vacated. The Owner of combined Lots must pay the Assessments due on each Lot unless the structure built on the combined Lots straddles the interior Lot boundaries.
13. Residential Dwellings . In addition and supplemental to the foregoing restrictions, the DCB Criteria and the following restrictions, reservations and easements shall apply to and govern the erection and maintenance of single, duplex and multiple dwellings in Villages One through Nine. These restrictions do not apply to Village Ten.
13.1 Garbage and Trash . Trash and garbage containers shall not be permitted to remain conspicuous except on days of trash collection. In Village Nine, at the time of occupancy each Owner shall be responsible for arrangement with the franchised collector for removal of garbage on a regular basis.
13.3 No Outside Storage . No outside storage is allowed (e.g., storage of car tires, step ladders, discarded appliances, etc.).
13.4 Garages . There shall not be erected or maintained on the property of that part of the Poinciana Subdivision which is designated herein exclusively for single family residential purposes, any structure of any kind other than a one-family dwelling and suitable accessory building, such as garage or carport. No garage or accessory buildings shall be used as living quarters. All garages must be built on rear half of Lot unless attached to the house.
13.5 Flag Lot . A Flag Lot has the basic formation set forth on Exhibit G hereof ("Typical Flag Lots") or as set forth on Exhibit H hereof (" Non-Typical Flag Lots "), each of which has parcels marked "A," "B" and "C." The front Lot line is that portion of the Lot which abuts the greenway, golf course, open space or waterway or, with respect to rear Flag Lots, the portion of the Lot which abuts the driveway. When more than one side of the Lot abuts a greenway, the front Lot line is defined as the Lot line abutting the major greenway.
13.5.1 Tenants In Common . The Owners of the two residential Flag Lots fronting (contiguous to) the street lying on either side of the said driveway tract, together with the Owners of the rear two Flag Lots served access by the driveway tract for ingress and egress shall be tenants in common, each as to an undivided one-fourth (_) interest, all to the entire of said driveway tract. Said respective ownership interest of an undivided one-fourth (_) interest in the driveway parcel shall constitute an appurtenant additional interest to the rights of ownership of the respective residential Lot adjacent to or lying to the rear of the subject driveway parcel, and the title to said appurtenance shall follow and be concurrent to the ownership of the respective residential Lot. Any person hereinafter acquiring title to any such residential Lot agrees that the title to such Lot and the said appurtenant undivided one-fourth (_) interest in the driveway parcel is perpetually unified and made concurrent, to the result that such unity of title shall forever be a covenant running with the land and that the benefits and burdens of such ownership of said appurtenance shall be attributable to and a charge and lien upon the ownership of the fee simple title of the respective residential Lot, including an assumption by the Owner thereof of the responsibility for maintenance and payment of ad valorem taxes, all in addition to the rights of possession, all as hereinafter set forth. As to the Owner of a residential Lot adjacent to parcel "A" or "B", respectively, such Owner shall become obligated to maintain the grass and all landscaping planted along the border of said parcel "A" or "B" lying adjacent to such Owner's respective Lot and to the driveway parcel "C". The Owner assuming the above said duties of maintenance as to parcel "A" or parcel "B" shall have as to that specific parcel exclusive rights to possession and enjoyment to the exclusion of all other persons, which rights of use, possession and enjoyment, except as needed by rear Lot Owners for parcel "C" maintenance, shall include the right fully to occupy same in all manner and respect as the rights are attributed to the Owner's residential Lot adjacent thereto. Said Owner also agrees to pay an undivided one-fourth (_) of all Assessments and/or ad valorem taxes imposed on the driveway parcel by any governmental authority.
13.5.2 Sharing of Expense . The Owners of either of the rear Flag Lots shall have the full and undiminished right to use and occupancy of the driveway (parcel "C") and all rights of ingress and egress to his respective Lot over and across said driveways, to the exclusion of all other persons, excepting only the owner of the other adjacent rear Lot also served by the same said driveway parcel "C". It shall be a covenant running with the land that each of said rear Flag Lot Owners have the concurrent obligation for the maintenance of the surface and appearance of said driveway (parcel "C") and also shall pay an undivided one-fourth (_) of all taxes or assessments made by any governmental authority thereon.
13.5.3 Failure to Maintain . In the event any of the respective tenants in common having ownership of parcels "A" or "B" and "C" shall fail to maintain said parcels as described above according to the conditions therein stated, or to pay taxes and/or Assessments which may be imposed thereon, the APV shall have the right to perform such maintenance services in behalf of such respective common Owners or pay the taxes and assessments thereon, and the APV shall have the right to enforce reimbursement for such advances by imposing a lien upon the respective residential Owner, which lien may be enforced according to the terms and provisions of this Declaration.
13.5.4 Exceptions . None of the provisions of this Section 13.5 shall apply to the Owner of a Flag Lot or the Owner of either of the two residential Lots fronting (contiguous to) the street lying on either side of the said driveway tract unless the deed from Avatar shall also include in the lands conveyed thereby the appurtenant undivided one-fourth (_) interest in the driveway parcel. Nothing herein contained, however, shall prevent at any time in the future, the owners of Flag Lots or the fronting residential Lots contiguous to the Flag Lot stems from voluntarily agreeing to be bound by the provisions of this Section 13.5, other than this subsection, by filing in the Public Records of the applicable County an instrument in writing agreeing to privity of title as between all four of any such Lots, each as to an undivided one-fourth (_) interest in said driveway parcel as then made unified. After the filing of such instrument in the Public Records of the applicable County, the covenants running with the lands, as recited in this Section 13.5, shall thereafter apply.
14. Commercial . The following restrictions, reservations and easements shall apply to and govern the erection and maintenance of Commercial Buildings in Villages One through Nine, all of which are limited and restricted to those sections and areas of Poinciana Subdivision as are zoned for that purpose. These restrictions are not applicable to Village Ten. Pursuant to Section 5 of the Original Declarations, the Village Ten Declaration shall set forth the restrictions on Commercial Buildings applicable to Village Ten. Setback requirements for Commercial Buildings are set forth in the DCB Criteria. In addition, all Commercial Buildings must meet all applicable regulations of the applicable County.
14.1 Parking . The front and rear setback areas may be utilized for parking. No vehicular parking shall be allowed on the front building setback portion of any Lot unless provisions are established, to the satisfaction of Avatar and the County to prevent the vehicles departing such premises from backing onto the traveled portions of adjacent streets. In all such departures, the vehicles must use only Avatar and the County approved exits.
14.2 Required Paving and Construction . As part of the construction of each building erected in a commercial area of Poinciana Subdivision, there shall be included a sidewalk in accordance with the applicable County Code and/or Regulations. Likewise, as part of the construction of each building, there shall be constructed concrete curbing and gutters, and storm sewers, plus that portion of the unpaved street fronting on each such building, lying between the side curb and gutter and the street, as paved by Avatar, shall be paved. All of the construction required by this Section shall be at the expense of the Lot Owner and shall be paid for by the Lot Owner at the prevailing rate, concurrently with the erection of a building or buildings. It is further understood that Lot Owners who erect buildings on only a fractional portion of a Lot must provide the herein above-detailed curbs, sidewalks, gutters and paving for the entire Lot. All structures erected must be of a permanent building material and must include adequate toilet facilities for Owners and/or occupants and their employees. No building shall be used or occupied as living quarters except for bonafide hotels and motels.
14.3 Use Restrictions for Areas Zoned Commercial . The use restrictions for areas zoned Commercial shall be as follows: retail businesses or services; parking lots and parking garages; hotels, offices, banks, theaters; wholesaling; dry cleaning plants; newspaper offices, printing establishments; public buildings; gasoline service stations; funeral parlors; auto sales and repair service; bus and truck terminals; tourist courts, motel and apartment motels, baking establishments; radio or television studios and transmission towers; recreation and entertainment facilities; or any other business the operation of which is not noxious, offensive, or injurious to the properties or the occupants thereof in districts of higher restrictive classifications by reason of the emission of odor, dust, dirt, smoke, gas, fumes, cinders, noise, refuse matter, vapor, vibration, radioactive or other similar substance or conditions; provided, however, that site development plans accompany the user application for building permits and use and plans are approved by Avatar, the DCB and the applicable County. The use restrictions shall be at least as restrictive as the restrictions imposed on areas zoned or subsequently zoned Commercial under the applicable County Zoning Code. Further, no gasoline stations or service stations shall be permitted in areas designated Commercial unless approved in writing by Avatar.
14.4 Party Walls . When and where the use of a party wall is not in conflict with the laws and regulations governing fire protection, party walls are permissible in a Commercial Building by the mutual consent of all parties concerned.
14.5 Modification or Waiver . The above restrictions shall refer in general to all Commercial property in Poinciana Subdivision. These restrictions may be modified and waived where a developer can demonstrate an adequate or more desirable solution to the satisfaction of the applicable County, Avatar and the APV. Without limiting any other provision hereof, the DCB must approve all Commercial building site plans.
WITNESSES:
ASSOCIATION OF POINCIANA VILLAGES, INC., a Florida not-for-profit
association
Print Name:
By:
Print Name:
Name:
Title:
Print Name:
AVATAR PROPERTIES INC.,
a Florida corporation
By:
Print Name:
Name:
Title:
STATE OF FLORIDA
)
COUNTY OF
) SS.:
)
The foregoing instrument
was acknowledged before me this _____ day of _______, 2001 by
______________
as ____________________ of ASSOCIATION OF POINCIANA VILLAGES, INC.,
a Florida
not-for-profit corporation, who is personally known to me or who
produced _________________
as identifi-cation, on behalf of the corporation.
My commission expires:
NOTARY PUBLIC, State
of Florida at Large