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REVIEW COMMENTS ENGINEERING MEMO #98-132 DATE: September 15, 1998 TO: STEVE GALE, DEPUTY CHIEF, OPS. MIKE HAAG, BUILD. PERMIT COORD. OFF. ROBERT RIGGLE, P.O. MICHAEL RUMPF, ACT. PLAN. DIR. PETER MAZZELLA, ASST. TO UTIL. DIR. LARRY QUINN, ASST. TO P. W. DIR. JOHN WILDNER, PARKS SUP'T. & KEVIN HALLAHAN, FORESTER RAY DAVIDSON, ACT. CITY ENG. ,f)-1:.,..-{Z- THRU: MICHAEL RUMPF, ACT. PLAN. DIR. FROM: KEN HALL, ENG. PLANS CHKIINSPJrECH. - X-6283 ~ SUBJECT: T.R.C FINAL PLAT REVIEW - SUMMERS MILL (Foster Property) & CONSTRUCTION DRAWINGS. ATTACHED IS THE SUBJECT PLAT AND ASSOCIATED CONSTRUCTION PLANS FOR YOUR REVIEW. WE LOOK FORWARD TO YOUR TIMELY, WRITTEN RESPONSE NO LATER THAN SEPTEMBER 28, 1998, THANK YOu. C: WILLIAM BINGHAM, FIRE CHIEF MARSHALL GAGE, POLlCE CHIEF JOHN GUIDRY, UTlL DIR. BULENT KAST ARLAK, DEV. DIR. LARRY ROBERTS, P.W. DIR. KRH Summers miIl tinal plat review DEVELOPMENT DEPARTMENT MEMORANDUM NO. PZ 98-194 TO: Ken Hall Engineering Plan Check Inspectorrrechnician jl1?e;- FROM: Michael W. Rumpf Acting Planning and Zoning Director DATE: June 25, 1998 SUBJECT: Summers Mill PUD (a.k.a. Foster Property) Review of Plat The subject proposed plat, Summers Mill P.U.D., corresponds with the applications for annexation, land use elementamendment and rezoning, for which a review is still in progress. This review will not be completed until ordinances are adopted (ordinances will be scheduled for City Commission review in July, 1998). The subject plat should not be approved until the ordinances for reclassification and rezoning are in effect. Further comments on this plat include the following: 1) Entrance to project represents a change from that configuration shown on proposed master plan. Revise plat to conform to master plan layout or revise master plan, prior to plat approval, to conform to proposed plat. 2) Proposed plat shows right-of-way to be 40' wide. which is consistent with the proposed master plan. Deviation from the minimum required, 50 foot right-of- way. must be approved by receiving relief through the variance process. Prior to final plat approval, a variance must be granted for same, or all plans modified to show compliance with respective code requirements. 3) Provide a copy of the unified control document as approved by the City Attorney. 4) Submit a copy of the purchase contract for use in determining land value and recreation impact fee. 5) Within the Declaration of Covenants, Restrictions, Conditions and Easements of Summers Mill, page 2, section 3., supplement reference to the respective Exhibit "A-1" with a general list of all such areas defined as common areas (e.g. tract numbers). MWR:mae S:\Shrdata\Planning\Shared\Wp\Projects\Foster Property\SUMMERS MILL PUD.doc .-------------- DEPARTMENT OF DEVELOPMENT MEMORANDUM NO. ENG. 98-094 DATE: June 4, 1998 illl~N- ~!~I rn PLANNiNG AND ZONING DEPT. TO: JOHN YEEND, P.E., CITY ENG. STEVE GALE, DEPUTY FIRE CHIEF MARK LIPS, P.W. FOREMAN OFFICER ROBERT RIGGLE, P.D. MICHAEL RUMPF, ACT. PLAN. DIR. PETER MAZZELLA, ASST. TO DIR. MIKE HAAG, BLDG. PERMIT ADMIN. JOHN WILDNER, PARKS SUPER. & KEVIN HALLAHAN, FORESTER FROM: KEN HALL, ENG. PLANS CHECKlINSPECTOR X-6283. @ SUBJECT: PRELIMINARY PLAT REVIEW - SUMMERS MILL, A P.U.D. Please review the attached plat and associated paving, drainage, water, and sewer plans and send Engineering your written comments no later than Friday, June 19, 1998, THANKS! KRH/krh C: Bulent Kastarlak, Oev. Dir, Lt Steve Graham, P.O, John Guidry, Uti\. Oir. Larry Roberts, P,W, Oir. Mcmo Irc Summcrs Mill. P,IJ.D. )" rcvicw i~& ~ D \If ~fiili UIJ I JJN - 51900 iPJ DEVELOPMENT DEPARTMENT MEMORANDUM ENG, NO, 98-095 DATEJune 4. 1998 PlANN!NG AND ZONING DEPT. TO: MICHAEL PAWELCZYK, MICHAEL RUMPF, AND KEVIN HALLAHAN FROM: KEN HALL, ENG. PLANS CHK/INSP, ~ RE: FIRST REVIEW OF THE RO.A. DOCUMENTS FOR THE PLAT OF SUMMERS MILL, P.U.D. HERE IS THE DECLARATION, THE ARTICLES, AND THE BY-LAWS OF THE SUBJECT DEVELOPMENT. PLEASE REVIEW THEM FOR LEGAL SUFFICIENCY AND SEND US YOUR OPINION. THANKS. KRH Attachments: 3 C: Bulent Kastarlak, Dev. Dir. John Yeend, P,E" City Eng. This Instrument Is Prepared By: Juan E. Rodriguez, Esquire SALOMON, KANNER, DAMIAN & RODRIGUEZ, P.A. 80 S.W. 8th Street Suite 2550 Miami, Florida 33130 DECLARATION OF COVENANTSI RESTRICTIONS, CONDITIONS AND EASEMENTS OF SUMMERS MILL This Declaration of Covenants, Restrictionsl Conditions and Easements is made by Continental Homes of Florida, Inc., a Florida corporation, hereinafter referred to as the "Declarant", whose mailing address is 8000 Governors Square Boulevard, Suite 101, Miami Lakes, Florida 33016. WITNESSETH: Declarant is the owner in fee simple of the property (the "Property") described in Exhibit" A" attached hereto and made a part hereof; and Declarant may, but shall not be required to, construct homes upon the property described in Exhibit "A", provided that in any event such construction will be subject to the covenants, conditions, restrictions, reservations, easements, liens and charges hereinafter set forth. Nowl Therefore, Declarant hereby declares that the property described in Exhibit "A" shall be held, sold, conveyed, leased, mortgaged and otherwise dealt with subj ect to the protective covenants, conditions, restrictions I reservations, easements, liens and charges as hereinafter set forth, all of which are for the purpose of enhancing and protecting the valuel desirability and plan of development for the same. Said covenants, conditions, restrictions, reservations, easementsl liens and charges shall run with the real property described in Exhibit "A", and shall be binding upon all parties having and/or acquiring any right, title or interest in said property or any portion thereof, and shall inure to the benefit of each and every person or party, from time to time, owning or holding an interest in said property. ARTICLE I DEFINITIONS The following words and terms when used in this Declaration or any supplemental declaration hereto or any amendment thereto (unless the context shall clearly indicate otherwise) shall have the following meanings: Section 1. "Articles" mean and refer to the Articles of Incorporation of Summers Mill Homeowners' Association, Inc'l a not- for-profit Florida corporation, and all exhibits which are attached thereto and made a part thereof, and shall include such amendments, if any, as may be adopted from time to time pursuant to the terms thereof. The Articles are attached hereto and made a part hereof as Exhibit "B". Section 2. "By-Laws" mean the By-Laws of Summers Mill Homeowners' Association, Inc., and all exhibits attached thereto and made a part thereof, and shall include such amendmentsl if any, as may be adopted from time to time pursuant to the terms thereof. The By-Laws are attached hereto and made a part hereof as Exhibit "C". particularly part hereof. Section 3. " described in Exhibi Section 4. Association, Inc., a successors and assigns. Summers Florida Mill Homeowners' corporation, its Section 5. "Declarant" is Continental Homes of Floridal Inc'l a Florida corporation, or any successor of Declarant who may be assigned all or a part of the rights of Declarant pursuant to a wri tten assignment executed by the then present Declarant and recorded among the Public Records of Palm Beach County, Florida. If Declarant assigns only a portion of its rights as Declarant hereunder to an assigneel then the term Declarant as used in this Declaration shall mean such assignee only when necessary to give such assignee the right of Declarant hereunder which were assigned to such assignee to the same extent as if such assignee had been the original Declarant, and said assignee shall not have any of the rights of Declarant hereunder which were not specifically assigned to such assignee. Section 6. "Declaration" means this instrument, together with the Exhibits attached hereto and made a part hereof, and shall include such amendments, if any, as may be adopted from time to time pursuant to the terms hereof. This Declaration may be referred to in any other document as "Declaration of Covenants, Restrictions, Conditions and Easements of Summers Mill". Section 7. "Development Period" means the period of time until the Declarant has' sold the last Home to outside purchasers. Section 8. upon a Lot. "Home" is a single family dwelling constructed Section 9. "Insti tutional First Mortgage" is a mortgage executed in favor of an Institutional First Mortgagee, which mortgage is a first and prior mortgage encumbering a Home. Section 10. "Institutional First Mortgagee" is a bank, savings and loan association, any insurance company, pension fund, real estate trust, Federal National Mortgage Association or its assigns, Federal Home Loan Mortgage Company or its assigns, or any other party engaged in the business of mortgage financing, which owns or holds a first and prior mortgage encumbering a Home, and shall include any corporate subsidiary of such entity. Section 11. "Lot" is a designated lot within the property described on Exhibit "A" conveyed or to be conveyed to an Owner upon which there has been constructed or will be constructed a Home. Section 12. "Member" is every person or entity who is a Member in the Corporation. Section 13. "Owner" is the record ownerl whether one or more persons or entities, of the fee simple title to any Lot which is a part of the Property, including contract sellers I but excluding those parties having such interest merely as security for the 2 performance of any obligation. Section 14. "Property" is the property described in Exhibit "A". The foregoing definitions shall be applicable to this Declaration and to any supplemental declaration hereto or any amendment to this Declaration, unless otherwise expressly provided herein or therein. ARTICLE II PROPERTY SUBJECT TO THIS DECLARATION Section 1. Legal Description. The real property which is and shall be held, transferredl sold, conveyed and occupied subject to this Declaration is located in Palm Beach County, Florida, and is more particularly described on the attached Exhibit "A". Section 2. Application of Declaration. The Property shall be held, transferred, sold, conveyed and occupied subject to the terms and conditions of this Declaration and any and all supplements and lawful amendments hereto. The filing of this Declaration and subjecting the Property to the covenants, conditions, restrictions, reservations, easements, liens and charges contained herein shall not be construed in any way as inhibiting or prohibiting the Declarant from conveying the Lots or improvements wi thin the Property to third parties free and clear of any covenants, conditions, restrictions, reservations, easements, liens and charges, except for those specifically provided for in this Declaration. Lots so conveyed by the Declarant to third parties shall be used and held by said third parties in accordance with this Declaration. ARTICLE III MEMBERSHIP Section 1. Membership. Every person or entity who is a record Owner of a fee or undivided fee interest in any Lot which is subject to the covenantsl conditions, restrictions, reservations, easements, liens and charges, of this Declaration, including contract sellers, shall be a Member of the Corporation. The foregoing is not intended to include persons or entities who hold an interest merely as security for the performance of an obligation. No Owner shall have more than one membership for each Lot owned. Membership shall be appurtenant to a Lot and may not be separated from ownership of the Lot. Ownership of a Lot shall be the sole qualification for membership. The Owner of record of each Lot shall be subject to assessment by the Corporation and shall be subject to enforcement by the Corporation in accordance with the terms and provisions of this Declaration. ARTICLE IV VOTING RIGHTS The Association shall have two membership: (2 ) classes of voting Class A. Class A Members shall be those Owners defined in Article III with the exception of the Declarant. Class A Members shall be entitled to one (1) vote for each Lot in which they hold 3 the interest required for membership by Article III. When more than one (1) person or entity holds such interest in any Lot, all such persons shall be Members. The vote for such Lot shall be exercised as they among themselves determine, but in no event shall more than one (1) vote be cast with respect to any Lot. Class B. The Class B Member shall be the Declarant, its successors and assigns. The Class B member shall be entitled to three (3) votes for each Lot in which it holds the interest required for membership by Article III, provided that the Class B membership shall cease and be converted to Class A membership on the happening of any of the following events, whichever occurs earlier: (a) when the total votes outstanding in the Class A membership equal the total votes outstanding in the Class B membership; or (b) on December 311 ; or (c) Thirty (30) days after Declarant elects to terminate the Class B Membership. ARTICLE V PROPERTY RIGHTS Section 1. Membership Easements of Enjoyment. Every Member shall have a right and easement of enjoyment in and to the Common Area, and such easement shall be appurtenant to and shall pass with the title to every Lot, subject to the following provisions: (a) The right of the Corporation in accordance with its Articles of Incorporation and By-Laws to borrow money for the purpose of improving the Common Areal and in aid thereof to mortgage the Common Area and the rights of such mortgagee in the Common Area shall be subordinate to the rights of the Owners hereunder; the right to mortgage the Common Area provided herein shall not become effective until a Horne has been constructed upon each Lot within the Property and each Lot has been conveyed by the Declarant to a purchaser; (b) The right of the Corporation to dedicate or transfer all or any part of Common Area to any public agency, authority or utility for such purposes, and subject to such conditions as may be agreed to by the Members. No such dedication or transfer shall be effective unless an instrument signed by Members entitled to cast two-thirds (2/3rds) of the votes of the Class A membership and two- thirds (2/3rds) of the votes of the Class B membership, if anYI has been recorded, agreeing to such dedication or transfer, and unless written notice of the proposed action is sent to every Member not less than thirty (30) days nor more than sixty (60) days in advance of the duly called meeting at which the vote on such dedication or transfer is held; (c) The right of the Declarant or the Corporation to establish, from time to timel certain easements over the Common Area for utilities and common services purposes; 4 (d) Existing easements and agreements of record; and (e) Easements referred to in Article X hereof. Section 2. Title To Common Area. The Declarant hereby represents that the fee simple title to the Common Area will be conveyed by the Declarant to the Corporation free and clear of all encumbrances and liens prior to the conveyance of the first Lot to a third party. Section 3. Declarant's Reserved Rights. Notwithstanding any provision herein to the contrary, the property rights under this Article V shall be subject to: (a) The right of the Declarant to execute all documents and take such actions and do such acts affecting the Property which, in the, Declarant's sole discretion, are desirable or necessary to facilitate the Declarant's actual construction or development of the Property. However, nothing contained herein shall authorize the Declarant to take any action that will diminish the rights of any lienholder or the holder of any mortgage on any Lot or on the Common Area; or take any action that will affect ti tIe to any of the Lots after conveyance to third parties; (b) Easements of records on the date hereof and any easements which may hereafter be granted by Declarant to any public or private utilities or governmental bodies for the installation and maintenance of cable television, electrical and telephone conduit and lines, sewers or water pipes, or any other utilities or services to any Lots within the Property or any portion of Common Area or such easements as Declarant may determine are necessary or beneficial for the maintenance or preservation of the Property; (c) The Declarant shall have full rights of ingl;ess and egress to and through, and over and about the PropertYI including the Common Area, during the Development Period and such additional period of time as the Declarant is engaged in any construction or improvement work on or within the Property, and Declarant shall further have an easement thereon for the purpose of storage of materials, vehicles, tools, equipment, etc., which are being utilized in such development or construction and for the use and maintenance of signs, banners, and the like being used in connection with the sale or promotion of the PropertYI or any portion thereof. No Owner, his guests, employees, servants, agents and invitees shall in any way interfere or hamper Declarant, its agents I servants I employees, invitees, successors or assigns, in connection with such construction, development, promotion or sales activity; and (d) The Declarant shall have full right to assign any or all of its right, title and interest in the Property, both as Declarant and as a Member of the Corporation, to another party by the execution and recording of a proper instrument in the Public Records of Palm Beach County, Florida. Section 4. No Dedication to Public Use. Nothing contained in this Declaration shall be construed or be deemed to constitute a dedication, express or implied, of any part of the Common Area to 5 or for any public use or purpose whatsoever. Section 5. Incorporation of Easements by Reference. Reference in the respective deeds of conveyance, or any mortgage or trust deeds or other evidence of obligation, to the easements and covenants herein described shall be sufficient to create and reserve such easements and covenants to the respective grantees, mortgagees or trustees of said parcels as fully and completely as though said easements and covenants were fully recited and set forth in their entirety in such documents. ARTICLE VI COVENANT FOR MAINTENANCE ASSESSMENTS Section 1. Creation of the Lien and Personal Obligation of Assessments to be Paid to the Corporation. The Declarant, for each Lot owned by it within the Property, hereby covenants, and each Owner of any Lot by acceptance of a deed therefor, whether or not it shall be so expressed in any such deed or other conveyance (including any purchaser at a judicial sale), is deemed to covenant, which covenant shall run with the land and be binding on every Owner, and agrees to pay to the Corporation: (1) any regular assessments or charges; and (2) any special assessments for improvements, or to fund any deficits between the amount collected for regular assessments in accordance with the capital annual budget and the amount determined necessary by the Corporation for the proper management and maintenance of the Common Area; and (3) any regular assessments or charges to effect payment of property taxes which may be assessed against Common Area or any personal property which may in the future be owned by the Corporation. Such assessments shall be fixed, established and collected from time to time as hereinafter provided. The regular and special assessments, together with such interest thereon and costs of collection thereof, including attorney's fees, as hereinafter provided, shall be a charge on the Property and shall be a continuing lien upon any Lot against which each such assessment is made, and said lien may be enforced in the same manner in which mortgages are enforced. Each such assessmentl together with such interest, costs, and reasonable attorney's fees for its collection I including attorney's fees involved at all appellate levels, shall also be the personal obligation of the person or entity who was the Owner of the Lot at the time when the assessment becomes due. The personal obligation shall not pass to the successors in title unless expressly assumed by such successors. Section 2. Purpose of Assessments. The assessments to be levied by the Corporation shall be used exclusively for the purpose of promoting the recreation I health, safetYI and welfare of the residents of the Property and shall specifically include, but not be limited to: the maintenance and operation of the entrance features to be erected to the Property; the maintenance and operation of the tot lot(s) on a portion of the Common Area; the payment of taxes and insurance for the Common Area; and payment for the improvement and maintenance of the Property, and services and facilities related to the use and enjoyment of the Common Area. Section 3. Basis of Regular Assessments. Until December 31, , the Declarant shall pay the operating costs of the Corporation. From and after January 1, the regular assessments may be required at some future date and shall be determined in accordance with the Articles and By-Laws, taking into account current maintenance costs and future needs of the Corporation. The maintenance costs shall include and shall mean 6 all operating costs of the Corporation, maintenance costs of the Common Area, payment of insurance premiums for the Common Area and premiums for such additional insurance as the Corporation deems necessary. Section 4. Special' Assessments for Capital Improvements. In addition to the regular assessments authorized above, the Corporation may levy in any assessment year, a special assessment applicable to that year only, for the purpose of defraying, in whole or in part, the cost of any construction or reconstruction or unexpected repair or replacement of a described capital improvement upon the Common Area, provided that any such special assessment in excess of twenty-five (25%) percent of the regular annual assessments shall require the assent of two-thirds (2/3) of the votes of each class of the Members present and voting in person or by proxy at a meeting duly called for this purpose I written notice of which shall be sent to all Members not less than thirty (30) days nor more than sixty (60) days in advance of the meeting setting forth the purpose of the meeting. Section 5. Uniform Rate of Assessment. Both annual and special assessments shall be fixed at a uniform rate for all Lots and may be collected on a monthly, quarterly or annual basis as determined by the Board of Directors. Section 6. Ouorum for An Action Authorized Under Section 4. At each meeting called, as provided in Section 4 hereof I the presence at the meeting of Members or of proxies entitled to cast one-third (1/3) of all the votes of each class of membership shall constitute a quorum. If the required quorum is not forthcoming at any meeting, another meeting may be called, subj ect to the notice requirements set forth in Section 4 and the required quorum at any such subsequent meeting shall be one-half (1/2) of the required quorum at the preceding meeting. No such subsequent meeting shall be held more than sixty (60) days following the preceding meeting. Section 7. Date of Commencement of Regular Assessments: Due Dates. The regular assessments provided for herein shall commence as to all Lots when determined by the Board of Directors of the Corporation as herein provided. The first regular assessment shall be adjusted according to the number of months remaining in the calendar year. The Board of Directors of the Corporation shall fix the amount of the regular assessment against each Lot at least thirty (30) days in advance of each regular assessment period. Written notice of the regular assessment shall be sent to every Owner subject thereto. The due date shall be established by the Board of Directors. The Corporation shall upon demand at any time furnish a certificate' in writing signed by an officer of the Corporation setting forth whether the assessments on a specified Lot have been paid. A reasonable charge may be made by the Board for the issuance of these certificates. Such certificate shall be conclusive evidence of payment of any assessment therein stated to have been paid. Section 8. Effect of Nonpayment of Assessments: Remedies of the Corporation. Any assessments which are not paid when due shall be delinquent. If the assessment is not paid within five (5) days after the due date, the assessment shall bear interest from the date of delinquency at the rate of eighteen (18 %) percent per annum, and the Corporation, acting through its Board of Directors, may bring an action at law against the Owner personally obligated to pay the same, or foreclose the lien against the Lot to which the assessment is levied, and interest, costs and reasonable attorney's fees, including at all appellate levels, of any such action shall be added to the amount of such assessment. Additionally, the Board 7 of Directors of the Corporation may at its discretion impose a late fee not to exceed Twenty-Five and No/100 ($25.00) Dollars. No Owner may waive or otherwise escape liability for the assessments provided for herein by non-use of the Common Area or abandonment of his Lot. Section 9. Subordination of the Lien to Mortgages. The lien of the assessments provided for herein shall be superior to all other liens save and except tax liens and the liens of any bona fide institutional first mortgage to an institutional first mortgagee, provided, however, that said mortgage liens are first liens against the property encumbered thereby, subject only to tax liens, and secure indebtednesses payable in constant monthly or quarter annual payments over a period of not less than five (5) years, and with a balloon payment thereafter if provided for in the mortgage or the note secured thereby. Section 10. Exempt Property. The following Property subject to this Declaration shall be exempt from the assessments created herein: (a) any portion of the Property dedicated to and accepted by a local public authority; (b) the Common Area; (c) any portion of the Property which is designated and/or reserved for easements; and (d) any portion of the Property owned by a charitable or non- profit organization exempt from taxation by the laws of the State of Florida. Howeverl no land or improvements devoted to dwelling use shall be exempt from said assessments. ARTICLE VII CAPITAL CONTRIBUTION At the time of the closing of a Home pursuant to an original sale by the Declarant, each purchaser shall pay to the Declarant on behalf of the Corporation a sum equal to One Hundred ($100.00) Dollars. These monies (hereinafter called "Capital Contribution") shall be the Corporation's property, and shall be held by the Corporation through its Board of Directors, pursuant to the powers described in the Articles and By-Laws. The Capital Contribution shall remain with the Home on the books of the Corporation, and while the asset amount may be affected by the actions of the Board of Directors, no refund of a Capital Contribution will be refunded on resale. Therefore, a purchaser should consider this item as an asset in his negotiation for resale of his Home. ARTICLE VIII ARCHITECTURAL CONTROL No building I fence, wall or other structure shall be commenced, erected or maintained upon any Lot I nor shall any exterior addition to or charge or alteration therein be made upon any Lot until the plans and specifications showing the nature, kind, shapel height, materials and location of the same shall have been submitted to and approved in writing as to harmony of exterior design and location in relation to surrounding structures and topography by the Board of Directors of the Corporation, or by an architectural committee composed of three (3) or more representatives appointed by the Board. In the event said Board, or its designated committeel fails to approve or disapprove such design and location within thirty (30) days after said plans and specifications have been submitted to i tl approval will not be 8 required and this Article will be deemed to have been fully complied with. Similarly no change in the exterior color of any structure erected or maintained upon any Lot shall be made unless approved in the manner provided in the foregoing two sentences in this Article, however, approval shall not be required for any improvement to any individual lot within the rear fence area of same if such improvement shall not exceed the height of said fence. The Board of Directors and/or the Architectural Committee may, from time to time, establish design criteria for certain common improvements, such as rear screen enclosures, screen doors, gutters and downspouts, and hurricane protection for window and door openings I which would become standard for all Homes and would thereafter require no further archi tectural approval. Notwithstanding any of the above, the Declarant shall be exempt from the provisions of this Article. ARTICLE IX USE RESTRICTIONS Section 1. No Lot shall be used except for purposes. No building shall be erected altered, permitted to remain on any Lot other than a Home. residential placed or Section 2. No structure of a temporary character, trailer, basement, tent, shack, barn or other out-building shall be used on any Lot at any time as a residence of appendage to such residence, either temporary or permanent. Section 3. 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 or nuisance to the neighborhood. Section 4. No animals, livestock or poultry of any kind shall be raisedl bread or kept on any LotI except that dogs, cats or other household pets may be kept provided they are not kept, bred or maintained for any commercial purpose. Section 5. No sign of any kind shall be displayed to the public view on any Lot, except one sign of not more than 18" x 24" advertising that property for sale or rent, or signs used by the Declarant to advertise the Property during the construction and sale of Homes. Section 6. No Lot shall be used or maintained as a dumping ground for rubbish. Trash, garbage or other waste shall be kept in sanitary containers. All equipment for the storage or disposal of such materials shall be kept in a clean and sanitary condition. Section 7. No garments, rugs or any other materials may by hung, exposed or dusted from the windows or from the front facade of any Home. Section 8. There shall not be parked upon any of the parking spaces set aside for general use within the Common Areal if any, any trailer, commercial vehicle, recreational vehicle, boat or boat trailer. This restriction shall not be deemed to limit the use of such parking facilities, if any, for service vehicles whose purpose is to perform maintenance and delivery service to the Lot Owners or the Corporation during normal working hours. Section 9. No septic tanks or individual wells will be permitted on any Lot. 9 Section IO. No garage may be improved for purposes of making same a living area, nor shall garage doors be removed except for replacement. ARTICLE X EASEMENTS Section 1. Easements for ingress and egress and for the installation and maintenance of all utilities and drainage facilities are reserved on and over each Lot and the Common Area. The right is also reserved to the Declarant and the Corporation to create additional utility easements by separate instrument as may be required from time to time. Section 2. Notwithstanding any other provisions contained in this Declaration, in the event that any Home, as constructed by the Declarant on a Lot, encroaches upon any portion of the Common Area or adjoining Lot, then a perpetual easement appurtenant to such Lot shall exist for the continuance of any such encroachment on the Common Area or adj oining Lot. In the event any fence I roof, overhanging roof, or portion of the Home, as constructed upon any Lot by Declarant, encroaches or overlaps upon any other Lot or the Common Area, then, in such event, a perpetual easement appurtenant to the Lot upon which the fence, roof, overhanging roof, or Home is construction shall exist for the continuation of any such encroachment or overlapping upon the adjoining Lots and the Common Area. ARTICLE XI PROVISIONS RESPECTING HOMES Section 1. House Maintenance. Each Lot Owner shall be responsible for maintaining and repairing the Home and all other improvements situated on his Lot in a clean, sanitary, neat, safe and orderly condition. Each Lot Owner shall be responsible for the maintenance I replacement or repair of all doors, exterior walls and all other portions of his Home and shall also be responsible to keep the paint on the exterior walls of the Home and the roof in a good state of repair. It will also be the duty of each Lot Owner to maintain in good repair the driveway servicing his Lot. Section 2. Lawn Maintenance. No underbrush or other unsightly growth shall be permitted to grow on any Lot, nor shall any refuse or unsightly obj ects be permitted to remain thereon. Each Lot Owner shall maintain his Lot in a neat and attractive manner, including, without limitation, having grass, weeds and undergrowth and other vegetation cut no less than once per month, and the shrubbery and trees located upon the Lot trimmed periodically in accordance with good husbandry practices, including the removal of any dead treesl shrubs or plants. In addition to maintaining his Lot as herein provided, each Owner shall maintain the wall, if any, facing the interior portion of his Lot, and the public area located between the front property line of his Lot and the street in front of his Lot or the property line of his Lot and the street on the side of his Lot if such Lot is a corner Lot. Section 3. Common Area Maintenance. The Corporation shall maintain the Common Area. The cost of such maintenance shall be a common expense of the Corporation. No Owner shall place any obstruction, fencel tree, shrubbery I foliage or any other item on the Common Area without the express written consent of the 10 Corporation. The Corporation shall maintain the entrance feature to the Property, the cost of which shall be a common expense of the Corporation. ARTICLE XII PROVISIONS RELATING TO FIRST MORTGAGEES Section 1. The following actions will require the prior written approval of two-thirds (2/3) of the holders of record of Institutional First Mortgages on Lots within the PropertYI (based upon one (1) vote for each Institutional First Mortgage holder): the abandonment, partition, subdivision, encumbrance, sale or transfer of the Common Area by the Corporation, other than the granting of easements for public utili ties or for other public purposes consistent with the intended use of the Common Area; a material change in the method of determining the assessments or other charges that may be levied against an Owner; the failure of the Corporation to maintain fire and extended coverage on any insurable improvements hereafter on the Common Area and any insurable improvements thereon in an amount that shall not be less than one hundred (100%) percent of the insurable value, based on the current replacement costs; the use of the insurance proceeds paid to the Corporation for any loss to the Common Area, or the improvements thereon, for any purpose other than the repair, replacement or reconstruction of the Common Area and the improvements thereon; the amendment of the Declaration in any manner which materially affects or impairs the rights of an Institutional First Mortgagee; the conveyance, encumbrance or hypothecation in any manner of the Common Area. Section 2. An Institutional First Mortgagee on any Lot in the Property may singly or jointly with other Institutional First Mortgagees: pay the taxes or other charges which are in default, and which mayor have become a charge against the Common Area; pay overdue premiums on hazard insurance policies for the Common Area; or secure new hazard insurance coverage for the Common Area after lapse of the existing coverage. In the event any Institutional First Mortgagee makes any of the aforementioned payments, such Institutional First Mortgagee shall be entitled to immediate reimbursement from the Corporation for the payments advanced, and such Mortgagee shall be subrogated to the assessment and lien rights of the Corporation against the Owners for the repayment of such advance, and the expense of making such reimbursement to the Institutional First Mortgagee shall be deemed a common expense of the Corporation. Section 3. No provision of this Declaration shall be interpreted to give an Owner, or any other party, priority over the rights of any Institutional First Mortgagee pursuant to the terms of its Mortgage on any Lot on the Property in the event of a distribution to such Owner of insurance proceeds or condemnation awards for losses to or a taking of the Common Area. Section 4. Any Institutional First Mortgagee of a Lot on the Property who obtains title to a Lot pursuant to the remedies provided in said Mortgagee's Institutional First Mortgage on that Lot, or obtains title by deed in lieu of foreclosure, shall not be liable for any unpaid assessment or charges accrued against said Lot prior to the acquisition of title to said Lot by such Mortgagee. Section 5. the Property is The Institutional First Mortgagee of any Lot on entitledl upon request, to written notification 11 from the Corporation of any default in the performance by the Owner of any of such Owner's obligations pursuant to the terms of this Declaration, which default is not cured after sixty (60) days notice to such Owner. Section 6. Any Institutional First Mortgagee who acquires title to any portion of the Property by way of foreclosure, deed in lieu of foreclosure, or otherwise, shall be entitled to any exemption from the terms and restrictions of this Declaration and the Master Declaration to the same extent that Declarant would be exempt from such terms or restrictions. Section 7. Any agreement for professional management, or any other contract providing for services of the Declarant may not exceed three (3) years. Any such agreement must provide for the termination by either party without cause and payment of a termination fee on ninety (90) days or less written notice. ARTICLE XIII GENERAL PROVISIONS Section 1. Covenants Run With Land. All covenants, conditions, restrictions I reservations, easementsl liens and charges contained in this Declaration shall constitute covenants running with the land, and all grantees, devisees, or mortgagees, their heirs, personal representatives, successors and assignsl and all parties claiming by, through or under such persons, agree to be bound by the provisions of (a) this Declaration of Covenants I Restrictions, Conditions and Easements, and (b) the Articles of Incorporation and By-Laws of the Corporation. The Corporation shall be the entity responsible for the operation and maintenance of the Common Area. Section 2. Enforcement. The Declarant, or the Corporation shall have the right during the Development Period to enforce all restrictions, conditions, covenants, reservations, liens and charges now or hereafter imposed by the provisions of this Declaration by proceedings at law or in equity. After the Development Period, the Corporation or any lot Owner shall have the right to enforce, by proceedings at law or in equity, all restrictions, conditions, covenants, reservationsl liens and charges now or hereafter imposed by the provisions of this Declaration. In any such proceedings, whether during or after the Development Period, the prevailing party shall be entitled to recover all costs and reasonable attorneys, fees, including at all appellate levels, incurred in connection with such enforcement action. Section 3. Severability. Invalidation of anyone of these covenants or restrictions by judgment or court order shall not affect any other provisions which shall remain in full force and effect. Section 4. Amendment. The covenants, conditions, restrictions, reservations, easements, liens and charges provided for in this Declaration shall run with and bind the land, and shall inure to the benefit of and be enforceable by the Corporation, or the Owner of any Lot subject to this Declaration, their respective legal representatives, heirs, successors and assigns, for a term of twenty-five (25) years from the date this Declaration is recorded, after which time said covenants shall be automatically extended for successi ve periods of ten (10) years. During the Development Period, Declarant reserves the right to amend this Declaration 12 without the consent of the Lot Owners. Such amendments shall not require the consent of the Institutional First Mortgagee Lenders and shall become effective when executed by Declarant and recorded in the Public Records of Palm Beach County, Florida. After the Development Period the covenants and restrictions of this Declaration may be amended by an instrument signed by not less than fifty-one (51%) percent of the Lot Owners. Any amendments must be properly recorded. Section 5. Remedy for Violation. For violation of a breach of any of the provisions of this Declaration, or the provisions of the Articles or By-Laws of the Corporation by any person or party claiming by, through or under the Declarant and/or the Corporation, or by virtue of any judicial proceedings, the Owner, the Corporation I the Declarant, an Institutional First Mortgagee, or any of them, severally, shall have the right to proceed at law for damages or in equity to compel compliance of any of such provisions, or for such other relief as may be appropriate. In addition to the foregoing rightsl whenever there shall have been built within the Property any structure which is in violation of this Declaration, a duly authorized representative of the Corporation, may enter upon the Property where such violation exists and summarily abate or remove the same at the expense of the Owner, provided, however, that the Corporation I shall then make the necessary repairs, constructions, etc., to insure that the Property and improvements where such violation occurred is restored to the same condition in which it existed prior to such violation, and any such entry, abatementl removal or restoration and construction work shall not be deemed a trespass. Section 6. Effect of Waiver of Violation. No waiver of a breach of or violation of any of the terms, provisions and covenants in this Declaration, or in the Articles or By-Laws, shall be construed to be a waiver of any succeeding breach or violation of the same term, provision or covenant of this Declaration, or the Articles or By-Laws. Section 7. Instruments Governing the Common Area and Owners of l&.t..s... This Declaration and the Articles and By-Laws, and any lawful amendments thereto shall govern the Common Area and the rights, duties and responsibilities of the Owners of Lots. Section 8. Notice to Owners. Whenever notices are required to be given hereunder, the same shall be sent to the Owner by United States First Class Mail, postage prepaid, at the address of the Home situated upon the Lot. Such notices shall be deemed given when deposited in the United States Mail. Any Owner may change his mailing address by written notice given to the Declarant or the Corporation at: 8000 Governors Square Boulevard Suite 101 Miami Lakesl Florida 33016 (or the official address of the Corporation as may be designated from time to time.) Section 9. Grammatical Construction. Wherever the context so requires, the use of any gender shall be deemed to include all genders, and the use of the singular shall include the plural, and the plural shall include the singular. 13 IN WITNESS WHEREOF, Continental Homes of Florida, Inc. has executed this Declarationl this day of May, 1998. Signed, sealed and delivered in the presence of: Continental Homes of Florida, Inc. Name: By: John P. Moroney, President (Corporate Seal) Name: STATE OF FLORIDA ) :SS. COUNTY OF MIAMI-DADE ) The foregoing instruction was acknowledged before me this __ day of May, 1998 by John P. Moroney, as President of Continental Homes of Florida, Inc., a Florida corporation, on behalf of said Corporation. The foregoing person is well known to me. Name: Notary Public, State of Florida at Large My Commission Expires: (CORPORATE SEAL) 14 Articles of Incorporation of Summers Mill Homeowners' Association, Inc., a not-for-profit Florida corporation In order to form a corporation not-for-profit under and in accordance with the provisions of Chapter 617.0011 of the Florida Statutes I the undersigned, acting as incorporator, hereby adopts the following Articles of Incorporation for the purposes and with the powers hereinafter mentionedl hereby certifies and sets forth the following: First: The name of the Corporation is Summers Mill Homeowners' Associationl Inc. Second: The Corporation is incorporated as a corporation not- for-profit under the provisions of Chapter 617 Florida Statutes, as amended, and will be referred to hereafter as the "Corporation". Third: The principal office and post office address of the Corporation shall be located at 8000 Governors Square Boulevard, Suite 101, Miami Lakes, Florida 33016. The address of the Registered Office of the Corporation is 2550 World Trade Center, 80 S.W. 8th Street, Miamil Florida 33130. The names of the registered agent is: Juan E. Rodriguez, who is authorized to accept service of process within this State upon the Corporation; and his address is at the Registered Office. Fourth: The purposes for which this Corporation is formed do not contemplate pecuniary gain or profit to the Members thereof, and the specific purpose for which it is formed are to provide for maintenance of the Common Area described in the Declaration of Covenants, Restrictions, Conditions and Easements of Summers Mill affecting the property described in Exhibit "A" attached hereto and made a part hereof and such other purposes as are provided for therein. This Corporation will promote the health, safety and welfare of the residents within the property described in Exhibit "A"; and shall have following powers: (a) To exercise all of the powers and privileges and to perform all of the duties and obligations of the Corporation as set forth in the Declaration of Covenants I Restrictions, Conditions and Easements of Summers Milll hereinafter called the "Declaration"l applicable to the property and recorded or to be recorded in the Office of the Clerk of the Circuit Court of Palm Beach County, Florida, as the same may be amended from time to time as therein provided; said Declaration is by reference incorporated herein as if set forth at length; (b) To fix, levy, collect and enforce payment by any lawful means all charges or assessments pursuant to the terms of the Declaration; to pay all expenses in connection therewith, and all office and other expenses incident to the conduct of the business of the Corporation, including licenses, taxes or government charges levied or imposed against the property of the Corporation; (c) To acquire (by giftl purchase or otherwise), own, hold, improvel build upon, operate, maintain, convey, sell, lease, transfer, dedicate for public use or otherwise dispose of real or personal property in connection with the affairs of the Corporation; (d) To borrow money, to mortgagel pledgel deed in trustl or hypothecate any or all of the Corporation's real or personal property as security for money borrowed or debts incurred; and (e) To have and to exercise any and all powers, rights and privileges which a corporation I organized under the corporation not-for-profit law of the State of Florida, may by law now or hereafter have or exercise. Fifth: Every person or entity who is a record Owner of a fee or undivided fee interest in any Lot which is subj ect by the Declaration to assessment by the Corporation, including contract sellers I shall be a Member of the Corporation. The foregoing is not intended to include persons or entities who hold an interest merely as security for the performance of an obligation. No Owner shall have more than one membership. Membership shall be appurtenant to and may not be separated from ownership of any Lot which is subject to assessment by the Corporation. Ownership of such Lot shall be the sole qualification for membership. Sixth: membership: The Corporation shall have two classes of voting Class A. Class A Members shall be all those Owners as defined in Article Fifth with the exception of the Declarant (as defined in the Declaration). Class A Members shall be entitled to one vote for each Lot in which they hold the interest required for membership by Article Fifth. When more than one person hold such interest in any LotI all such persons shall be Members. The vote for such Lot shall be exercised as they among themselves determine, but in no event shall more than one vote be cast with respect to any Lot. Class B. The Class B Member shall be the Declarant (as defined in the Declaration). The Class B Member shall be entitled to three (3) votes for each Lot in which it holds the interest required for membership by Article Fifthl provided that the Class B membership shall cease and be converted to Class A membership on the happening of any of the following events whichever occurs earlier: (a) when the total votes outstanding in the Class A membership equal the total votes outstanding in the Class B membership; or (b) December 31, ; or (c) Thirty (30) days after the Declarant elects to terminate the Class B Membership. Seventh: The term for which this Corporation is to exist is perpetual. Eighth: The affairs of the Corporation are to be managed by the following officers: President Vice President Secretary Treasurer 2 Ninth: The officers who are to serve until the first election of the directors are as follows: President Vice President Secretary Treasurer The first annual meeting of the Corporation and the first election of the Board of Directors shall be held on the first Wednesday in December, 19991 or by order of the Board of Directors at such earlier date as they determine, and thereafter annual meetings of the members shall be held on the first Wednesday in December of each year, if not a legal holiday, or non-business day, and if a legal holiday, or non-business day, then on the next business day following. The Directors elected at the first annual meeting and at each subsequent annual meeting of the Members shall elect officers of the Corporation who will hold office until the next meeting of the Board of Directors, or until their successors are elected and qualified. Tenth: This Corporation shall be governed by a Board of Directors consisting of not less than three (3) and no more than five (5) persons. The names and addresses of the persons who are to serve as Directors until the first annual meeting of the Members are as follows: NAMES ADDRESSES 8000 Governors Boulevard Suite 101 Miami Lakes, Florida 33016 1. 2. 8000 Governors Boulevard Suite 101 Miami Lakes, Florida 33016 3. 8000 Governors Boulevard Suite 101 Miami Lakesl Florida 33016 Commencing with the first annual meeting of the Members and at each subsequent annual meeting of the Members of the Corporation, the Directors of the Corporation shall be elected by the Members and they will hold office in each instance until the next annual meeting of the Members or until their successors are elected and qualified. Pursuant to Article Sixth hereof I the Declarant, Continental Homes of Florida, Inc., is a Class B Member with three votes for each unsold Lot in the Property. Directors elected by the Class B Member need not themselves be owners of homes erected on the property subj ect to the Declaration nor Members of the Corporation. Further, notwithstanding the number of Class B votes existing from time to time, the Declarant, Continental Homes of Florida, Inc., shall have the right to elect all of the Directors of the Corporation until December, 1999. Thereafter the Directors of the Corporation shall be elected at the annual meeting of the Members of the Corporation, which annual meeting will be held pursuant to the provisions of the By-Laws. Vacancies in the Board of Directors shall be filled by the remaining Directors at a special meeting called for that purpose and a Director so elected shall serve until the next annual meeting of the Members of the Corporation. 3 Eleventh: The Board of Directors shall have all the powers and duties referred to in the Declaration and in the laws of the State of Florida respecting corporations not-for-profi t. The powers of the Board of Directors shall include, but shall not be limi ted to the following: (a) to elect the Officers of the Corporation, (b) to administer the affairs of the Corporation and the Common Area, (c) to engage the services of a manager or managing agent for the Property and to fix the terms of such management agreement and the compensation and the authority of the manager or managing agent, (d) to promulgate such rules and regulations concerning the operation and use of the property or Common Area, as may be consistent with the Declaration and to amend the same from time to time, (e) to provide for the maintenance, repair and replacement of Common Area, and (f) to estimate and adopt an annual operating budget and to provide for the assessment and collection from the Lot Owners of their respective shares or all estimated expenses. Twelfth: The initial By-Laws of this Corporation are those adopted by the Board of Directors and entered in the Minute Book of the Corporation. Such By-Laws may be altered, amended, added to or repealed by the Members of the Corporation in the manner provided for in said initial By-Laws and in conformity with the provisions and requirements of the Florida Statutes regulating corporations not-for-profitl as amended from time to time, which is currently set forth in Chapter 617, Florida Statutes, as amended from time to time. Thirteenth: These Articles of Incorporation may be altered, amended, changed, added tOI or repealed, in the manner or hereafter prescribed by statute or herein or by the By-Laws of this Corporation as they exist from time to time, at any duly called meeting of the Members of this Corporation provided that (a) the notice of the meeting is given in the manner provided in Section 3, Article X of the initial By-Laws, and it contains a full statement of the proposed alteration, amendment, change, addition, or repeal, and (b) there is an affirmative vote of two-thirds (2/3) of the Members in person or by proxy of said proposed alteration, amendment I change, addition, or repeal. Fourteenth: This Corporation shall never have or issue shares of stock nor will it ever have or provide for non voting membership. Fifteenth: From time to time and at least once annuallYI the corporate officers shall furnish periodic reports to the Members, which shall include profit and loss statements and balance sheets prepared in accordance with sound business and accounting practices. Sixteenth: The Corporation shall have all the powers set forth and described in the Florida Statutes regulating corporations not-for-profitl as amended from time to time, which are currently set forth in Chapter 617.0302 Florida Statutes, together with those powers conferred by the Declaration, these Articles and any and all lawful By-Laws of the Corporation. Seventeenth: The names and address of the incorporator hereto is as follows: 4 NAME ADDRESSES 1. Juan E. Rodriguez 80 S.W. 8th Street Suite 2550 Miamil Florida 33130 Eighteenth: Each Director and officer of this Corporation shall be indemnified by the Corporation against all costs and expenses reasonably incurred or imposed upon him in connection with or arising out of any actionl suit or proceeding in which he may be involved or to which he may be made a party by reason of his having been a Director or officer of this Corporation I such expense to include the cost of reasonable settlements (other than amounts paid to the Corporation itself) made with a view to curtailment of costs of litigation. The Corporation shall notl howeverl indemnify such Director or officer with respect to matters as to which he shall be finally adjudged in any such action, suit or proceeding to be liable for negligence or misconduct in the performance of his duty as such Director or officer, or in respect to any matter in which any settlement or compromise is effected if the total expense, including the cost of settlement shall substantially exceed the expense which might reasonably be incurred by such Director or officer in conducting such litigation to final conclusion, and in no event shall anything herein contained be construed as authorizing this Corporation to indemnify any such Director or officer against any liability of the Corporation to which he would otherwise be subject by reason of willful malfeasance, bad faith, gross negligence or reckless disregard of the duties involved in the conduct of his office. The foregoing right to indemnification shall be in addition to any other rights to which any such Director or officer may be entitled as a matter of law or otherwise. Wel the undersignedl being all of the incorporators herein- above namedl for the purpose of forming a Corporation not-for- profit pursuant to Chapter 6171 Florida Statutes, as amendedl do hereby subscribe to these Articles of Incorporation, and have set our hands and seals this ____ day of May, 1998. (SEAL) Juan E. Rodriguez STATE OF FLORIDA SS. COUNTY OF MIAMI-DADE Before Me, the undersigned authority, this day personally appeared Juan E. Rodriguezl who being duly sworn according to law, deposes and says that he is competent to contract and further acknowledge that he did subscribe to the foregoing Articles of Incorporation freely and voluntarily and for the purpose therein expressed. In Witness Whereof, I have hereunto set my hand and official seal at Miami, Miami-Dade County, Florida, this day of May, 1998. Name: NOTARY PUBLIC, State of Florida at Large My commission expires: (SEAL) 5 Acce9tance of Service As Registered Agents The undersignedl Juan E. Rodriguez I having been named as registered agent to accept service of process for Summers Mill Homeowners' Associationl Inc., a not-for-profit Florida corporation, at the registered office designated in the Artic~es of Incorporation of said Corporation I hereby agrees and consents to act in that capacity. The undersigned is familiar with and accepts the duties and obligations of Section 617.023 Florida Statutes, and will comply with the provisions of all statutes of Florida relative to the performance of our duties as registered agents. Dated this day of May, 1998. Juan E. Rodriguez 6 BY-LAWS OF Summers Mill Homeowners' Association, Inc., a not-for-profit Florida corporation ARTICLE I NAME AND LOCATION The name of the corporation is Summers Mill Homeowners' Association, Inc., hereinafter referred to as the "Association". The principal office of the corporation shall be located at the offices of Continental Homes of Florida, Inc., 8000 Governors Square Boulevard, Suite 101, Miami Lakes, Florida 33016, or at such other places as may be subsequently designated by the Board of Directors, but meetings of Members and Directors may be held at such places within the State of Florida as may be designated by the Board of Directors. ARTICLE II DEFINITIONS The following words and terms when used in the By-Laws or any supplement or amendment thereto (unless the context shall clearly indicate otherwise) shall have the following meanings: Section 1. "Articles" mean and refer to the Articles of Incorporation of Summers Mill Homeowners' Association, Inc., a not- for-profit Florida corporation, and all exhibits which are attached thereto and made a part thereof, and shall include such amendments, if any, as may be adopted from time to time pursuant to the terms thereof. ' Section 2. "By-Laws" means this instrument and all Exhibits attached hereto and made a part hereof, and shall include all amendments. Section 3. "Common Area" is the property more particularly described in Exhibit "A-I" attached hereto and made a part hereof. Section 4. "Corporation" means Association, Inc., a not-for-profit successors and assigns. Summers Florida Mill Homeowners' corporation, its Section 5. "Declarant" is Continental Homes of Florida, Inc., a Florida corporation, or any successor of Declarant who may be assigned all or a part of the rights of Declarant pursuant to a written assignment executed by the then present Declarant and recorded among the Public Records of Palm Beach County, Florida. If Declarant assigns only a portion of its rights as Declarant hereunder to an assignee, then the term Declarant as used in this Declaration shall mean such assignee only when necessary to give such assignee the right of Declarant hereunder which were assigned to such assignee to the same extent as if such assignee had been the original Declarantl and said assignee shall not have any of the rights of Declarant hereunder which were not specifically assigned to such assignee. Section 6. "Declaration" mean is the Declaration of Covenants, Restrictions, Conditions and Easements of Summers Mill as recorded in the Public Records of Palm Beach County, Florida, and any and all supplements and amendments thereto. Section 7. "Development Period" means the period of time until the Declarant has sold the last Home to outside purchasers. section 8. upon a Lot. Section 9. "Insti tutional First Mortgage" is a mortgage executed in favor of an Institutional First Mortgagee, which mortgage is a first and prior mortgage encumbering a Home. "Home" is a single family dwelling constructed section 10. "Institutional First Mortgageell is a bank, savings and loan association, any insurance company, pension fund, real estate trust, Federal National Mortgage Association or its assigns, Federal Home Loan Mortgage Company or its assigns, or any other party engaged in the business of mortgage financing, which owns or holds a first and prior mortgage encumbering a Home, and shall include any corporate subsidiary of such entity. Section 11. "Lot" is a designated lot within the property described on Exhibit "A" conveyed or to be conveyed to an Owner upon which there has been constructed or will be constructed a Home. section 12. "Memberll is every person or entity who is a Member in the Corporation. Section 13. "Owner" is the record owner, whether one or more persons or entities, of the fee simple title to any Lot which is a part of the Property, including contract sellers, but excluding those parties having such interest merely as security for the performance of any obligation. "All. Section 14. lIProperty" is the property described in Exhibit ARTICLE III MEMBERSHIP Section 1. Membership. Every person or entity who is a record owner of a fee or undivided fee interest in any Lot which is subject by covenants of record to assessment by the Corporation, including contract sellers, shall be a Member of the corporation. The foregoing is not intended to include persons or entities who hold an interest merely as security for the performance of an obligation. No Owner shall have more than one membership for each Lot owned. Membership shall be appurtenant to and may not be separated from ownership of any Lot which is subject to assessment by the Corporation. Ownership of such Lot shall be the sole qualification for membership. Section 2. Suspension of Membership. During any period in which a Member shall be in default in the payment of any annual or special assessment levied by the Corporation, the voting rights of such Member may be suspended by the Board of Directors until such assessment has been paid. Such rights of a Member may also be suspended, after notice and hearing, for a period not to exceed one hundred eighty (180) days for violation of any rules and regulations established by the Board of Directors. Section 3. Voting Rights. of voting membership. There shall be two classes Class A. Class A Members shall be all those Owners as defined in Article III of the Declaration with the exception of the Declarant. Class A Members shall be entitled to one vote for each Lot in which they hold the interest required for membership by Article III of the Declaration. When more than one person holds such interest in any Lot, all such persons shall be Members. The vote for such Lot shall be exercised by the Owners as they among themselves determine I but in no event shall more than one vote be 2 cast with respect to any Lot. Class B. The Class B Member shall be the Declarant. The Class B Member shall be entitled to three (3) votes for each Lot in which it holds the interest required for membership by Article III of the Declaration, provided that the Class B membership shall cease and be converted to Class A membership on the happening of any of the following events, whichever occurs earlier: (a) when the total votes outstanding in the Class A membership equal the total votes outstanding in the Class B membership; or (b) on December 31, ____; or (c) Thirty (30) days after the Declarant elects to terminate the Class B Membership. ARTICLE IV PROPERTY RIGHTS: RIGHTS OF ENJOYMENT Each Member shall be entitled to the use and enjoyment of the Common Area and its facilities as provided in the Declaration. Any Member may delegate his rights of enjoyment of the Common Area and its facilities to the members of his family, his tenants or contract purchasers, who reside on the Property. Such Member shall notify the secretary in writing of the name of any such party. The rights and privileges of such party are subject to suspension to the same extent as those of the Member. ARTICLE V BOARD OF DIRECTORS: SELECTION: TERM OF OFFICE Section 1. Number. The affairs of this Corporation shall be managed by a Board of not less than three (3) and no more than five (5) Directors. Section 2. Election. Directors shall be elected at the annual meeting of the Members. At such annual meeting not less than three (3) and no more than five (5) directors shall be elected and they shall serve until the next annual meeting of the Members or until their successors are chosen or until removed in accordance with the Articles of Incorporation or these By-Laws. Section 3. Removal. Any director may be removed from the Board, with or without cause, by a majority vote of the Members of the Corporation. In the event of death, resignations or removal of a director, his successor shall be selected by the remaining Members of the Board and shall serve until the next annual meeting of the Members. Section 4. Compensation. No director shall receive compensation for any service he may render to the Corporation. However, any director may be reimbursed for his actual expenses incurred in the performance of his duties. Section 5. Action Taken Without A Meeting. The directors shall have the right to take any action in the absence of a meeting which they could take at a meeting by obtaining the written approval of all of the directors. Any actions so approved shall have the same effect as though taken at a meeting of the directors. 3 ARTICLE VI MEETING OF DIRECTORS Section 1. Nomination. Nomination for election of the Board of Directors shall be made by a Nominating Committee. Nominations may be also made from the floor at the annual meeting of the Members. The Nominating Committee shall consist of a Chairman, who shall be a member of the Board of Directors, and two or more Members of the Corporation. The Nominating Committee shall make as many nominations for election to the Board of Directors as it shall in its discretion determine, but not less than the number of vacancies that are to be filled. section 2. Election. Election to the Board of Directors shall be by secret ballot. At such election the Members or their proxies may cast their vote with respect to each vacancy for as many as they are entitled to exercise under the provisions of the Declaration. The persons receiving the largest number of votes shall be elected. Cumulative voting is not permitted. ARTICLE VIII POWERS AND DUTIES OF THE BOARD OF DIRECTORS Section 1. Powers. The Board of Directors shall have the power: (a) To adopt and publish, from time to time, rules and regulations governing the use of the Common Area and its facilities, and the personal conduct of the Members and their guests thereon, and to establish penalties for the infraction thereof; (b) To exercise for the Corporation all powers, duties and authority vested in or delegated to the corporation, which are not reserved to the membership by other provisions of these By-Laws, the Articles, or the Declaration; (c) To declare the off ice of a member of the Board of Directors to be vacant in the event such member shall be absent from three (3) consecutive regular meetings of the Board of Directors, except that the directors appointed by Declarant shall not be subject to this provision; and (d) To employ a manager, an independent contractor or such other employees as they deem necessary, and to prescribe their duties. Section 2. Duties. Directors: It shall be the duty of the Board of (a) To cause to be kept a complete record of all its acts and corporate affairs and to present a statement thereof to the Members at the annual meeting of the Members or at any special meeting, when such statement is requested in writing by one-fourth (1/4) of the Class A members who are entitled to vote; (b) To supervise all officers, agents and employees of the Corporation and to see that their duties are properly performed; (c) As more fully provided herein and in the Declaration: ( 1) To take into account the common expenses of the Corporation, the appropriate expenses respecting 4 the personal property taxes levied against the Corporation or the Common Area, and other expenses of the Corporation; and (2) To send written notice of each assessment to every Owner subject thereto at least thirty (30) days in advance of each annual assessment period; (d) To issue, or to cause an appropriate officer to issue, upon demand by any person, a certificate setting forth whether any assessment has been paid. A reasonable charge may be made by the Board for the issuance of these certificates. Such certificate shall be conclusive evidence of any assessment therein stated have been paid; (e) To collect delinquent assessments and penalties and to create, record and foreclose the lien securing the said assessments and to hire attorneys, accountants and other professionals to do the same; (f) To procure and maintain adequate liability insurance, and to procure adequate hazard insurance on property owned by the Corporation; (g) To cause all officers responsibilities to be appropriate; or employees bonded, as having fiscal it may deem (h) To cause the Common Area to be maintained; and (i) To cause the exterior of the dwellings, and the lawns I fences and walls to be maintained by the Owners (except as otherwise required by the Declaration or these By- Laws) . ARTICLE IX COMMITTEES Section 1. Types of Committees. The Corporation shall appoint a Nominating Committee as provided in these By-Laws. In addition, the Board of Directors may appoint other committees as deemed appropriate in carrying out its purposes. Section 2. Responding to Members. It shall be the duty of each committee to receive complaints from Members on any matter involving Corporate functions, duties and activities within its field of responsibility. It shall dispose of such complaints as it deems appropriate or refer them to such other committees, directors or officers of the Corporation as are further concerned with the matter presented. ARTICLE X MEETING OF MEMBERS Section 1. Annual Meetings. The first annual meeting of the Members shall be held on the first Wednesday in December, 1999, or on such other date as the Board of Directors may in its judgment deems desirable or expedient, and each subsequent regular annual meeting of the members shall be held on the date fixed by the Board of Directors, and such meetings shall commence at seven o'clock, P.M. The annual meeting of the Members shall not be held on a legal hOliday. 5 Section 2. Special Meetings. Special meetings of the Members may be called at any time by the president or by the Board of Directors, or upon written request of the Members who are entitled to vote one-fourth (11 4th) of all of the votes of the entire membership or who are entitled to vote one-fourth (11 4th) of the votes of the Class A membership. section 3. Notice of Meetings. written notice of each meeting of the Members shall be given by, or at the discretion of, the secretary or person authorized to call the meeting, by mailing a copy of such notice, postage prepaid, at least fifteen (15) days before such meeting to each Member entitled to vote thereat, addressed to the Member's address last appearing on the books of the Corporation, or supplied by such Member to the corporation for the purpose of notice. Such notice shall specify the place, day and hour of the meeting, and in the case of a special meeting, the purpose of the meeting. section 4. Ouorum. The presence at the meeting of Members entitled to cast, or of proxies entitled to cast, one-third (1/3) of the votes of each class of membership shall constitute a quorum for any action except 'as otherwise provided in the Articles of Incorporation, the Declaration, or these By-Laws. If however, such quorum shall not be present or represented at any meeting, the Members entitled to vote thereat shall have power to adjourn the meeting from time to time, without notice other than announcement at the meeting until a quorum as aforesaid shall be present or be represented. Section 5. Proxies. At all meetings of Members, each Member may vote in person or by proxy. All proxies shall be in writing and filed with the secretary. Every proxy shall be revocable and shall automatically cease upon conveyance by the Member of his Lot. ARTICLE XI OFFICERS AND THEIR DUTIES Section 1. Enumeration of Offices. The offices of this Corporation shall be a president and a vice-president, a secretary and a treasurer, who shall at all times be members of the Board of Directors, and such other officers as the Board may from time to time by resolution create. section 2. Election of Officers. The election of officers shall take place at the first meeting of the board of Directors following each annual meeting of the Members. section 3. ~. The officers of this Corporation shall be elected annually by the Board and each shall hold office for one (1) year unless he shall sooner resign, or shall be removed, or is otherwise disqualified to serve. section 4. Special Appointment. The Board may elect such other officers as the affairs of the Corporation may require, each of whom shall hold office for such period, have such authority, and performance of such duties as the Board maYI from time to timel require. Section 5. Resignation and Removal. Any officers may be removed from office with or without cause by the Board. Any officer may resign at any time by giving written notice to the Board, the president or the secretary. Such resignation shall take effect on the date of receipt of such notice or at any later time specified therein, and unless otherwise specified therein, the acceptance of such resignation shall not be necessary to make it effective. 6 section 6. Vacancies. A vacancy in any office may be filled in the manner prescribed for regular election. The officer elected to such vacancy shall serve for the remainder of the term of the officer he replaces. section 7. Multiple Officers. The offices of secretary and treasurer may be held by the same person. No persons shall simultaneously hold more than one of the other offices except in the case of special offices created pursuant to section 4 of this Article. Section 8. Duties. follows: The duties of the officers are as PRESIDENT (a) The president shall preside at all meetings of the Board of Directors; shall see that orders and resolutions of the Board are carried out; shall sign all leases, mortgages, deeds and other written instruments and shall co-sign all checks and promissory notes. VICE-PRESIDENT (b) The vice-president shall act in the place and stead of the president in the event of his absence, inability or refusal to act and shall exercise and discharge such other duties as may be required of him by the Board. SECRETARY (c) The secretary shall record the votes and keep the minutes of all meetings and proceedings of the Board and of the Members; keep the corporate seal of the corporation and affix it on all papers requiring said seal; serve notice of meetings of the Board and all of the Members; keep appropriate current records showing the Members of the Corporation together with their addresses, and shall perform such other duties as required by the Board. TREASURER (d) The treasurer shall receive and deposit in appropriate bank accounts all monies of the Corporation and shall disburse such funds as directed by resolution of the Board of Directors; shall sign all checks and promissory notes; shall cause financial statements to be made of the Corporation's books of account at the completion of each fiscal year; shall prepare an annual budget and a statement of income and expenditures to be presented to the membership at its regular annual meeting, and deliver a copy of each to the Members; and shall furnish a corporate surety bond in a sum satiSfactory to the Board for the faithful performance of the duties of his office and the restoration to the Corporation of all books, papers, vouchers, money or other property of whatever kind in his possession or under his control, belonging to the corporation. The corporation shall pay all premiums for said bond. 7 ARTICLE XII ASSESSMENT section 1. Creation of the Lien and Personal obligation of Assessments to be Paid to the Corporation. The Declarant, for each Lot owned by it within, the Property, hereby covenants, and each Owner of any Lot by acceptance of a deed therefor, whether or not it shall be so expressed in any such deed or other conveyance (including any purchaser at a jUdicial sale), is deemed to covenant, which covenant shall run with the land and be binding on every Owner, and agrees to pay to the Corporation: (1) any regular assessments or charges; and (2) any special assessments for improvements, or to fund any deficits between the amount collected for regular assessments in accordance with the capital annual budget and the amount determined necessary by the Corporation for the proper management and maintenance of the Common Area; and (3) any regular assessments or charges to effect paYment of property taxes which may be assessed against Common Area or any personal property which may in the future be owned by the corporation. Such assessments shall be fixed, established and collected from time to time as hereinafter provided. The regular and special assessments, together with such interest thereon and costs of collection thereof, including attorney's fees, as hereinafter provided, shall be a charge on the Property and shall be a continuing lien upon any Lot against which each such assessment is made, and said lien may be enforced in the same manner in which mortgages are enforced. Each such assessment, together with such interest, costs, and reasonable attorney's fees for its collection, including attorney's fees involved at all appellate levels, shall also be the personal obligation of the person or entity who was the Owner of the Lot at the time when the assessment becomes due. The personal obligation shall not pass to the successors in title unless expressly assumed by such successors. section 2. Purpose of Assessments. The assessments to be levied by the Corporation shall be used exclusively for the purpose of promoting the recreation, health, safety, and welfare of the residents of the Property and shall specifically include, but not be limited to: the maintenance and operation of the entrance features to be erected to the Property; the maintenance and operation of the tot lot(s) on a portion of the Common Area; the paYment of taxes and insurance for the Common Area; and paYment for the improvement and maintenance of the Property, and services and facilities related to the use and enjoyment of the Common Area. Section 3. Basis of Regular Assessments. until December 31, , the Declarant shall pay the operating costs of the Corporation. From and after January 1, I the regular assessments may be required at some future date and shall be determined in accordance with the Articles and By-Laws, taking into account current maintenance costs and future needs of the corporation. The maintenance costs shall include and shall mean all operating costs of the Corporation, maintenance costs of the Common Area, paYment of insurance premiums for the Common Area and premiums for such additional insurance as the Corporation deems necessary. section 4. Special Assessments for Capital Improvements. In addition to the regular assessments authorized above, the Corporation may levy in any assessment year, a special assessment applicable to that year only, for the purpose of defraying, in whole or in part, the cost of any construction or reconstruction or unexpected repair or replacement of a described capital improvement upon the Common Area, provided that any such special assessment in excess of twenty-five (25%) percent of the regular annual assessments shall require the assent of two-thirds (2/3) of the votes of each class of the Members present and voting in person or by proxy at a meeting duly called for this purpose, written notice 8 of which shall be sent to all Members not less than thirty (30) days nor more than sixty (60) days in advance of the meeting setting forth the purpose of the meeting. section 5. Uniform Rate of Assessment. Both annual and special assessments shall be fixed at a uniform rate for all Lots and may be collected on a monthly, quarterly or annual basis as determined by the Board of Directors. section 6. Ouorum for An Action Authorized Under section 4. At each meeting called, as provided in Section 4 hereof, the presence at the meeting of Members or of proxies entitled to cast one-third (1/3) of all the votes of each class of membership shall constitute a quorum. If the required quorum is not forthcoming at any meeting, another meeting may be called, subject to the notice requirements set forth in section 4 and the required quorum at any such subsequent meeting shall be one-half (1/2) of the required quorum at the preceding meeting. No such subsequent meeting shall be held more than sixty (60) days following the preceding meeting. section 7. Date of Commencement of Regular Assessments: Due Dates. The regular assessments provided for herein shall commence as to all Lots when determined by the Board of Directors of the Corporation as herein provided. The first regular assessment shall be adjusted according to the number of months remaining in the calendar year. The Board of Directors of the corporation shall fix the amount of the regular assessment against each Lot at least thirty (30) days in advance of each regular assessment period. Written notice of the regular assessment shall be sent to every Owner subject thereto. The due date shall be established by the Board of Directors. The corporation shall upon demand at any time furnish a certificate in writing signed by an officer of the Corporation setting forth whether the assessments on a specified Lot have been paid. A reasonable charge may be made by the Board for the issuance of these certificates. Such certificate shall be conclusive evidence of payment of any assessment therein stated to have been paid. section 8. Effect of Nonpayment of Assessments; Remedies of the Corporation. Any assessments which are not paid when due shall be delinquent. If the assessment is not paid within five (5) days after the due date, the assessment shall bear interest from the date of delinquency at the rate of eighteen (18%) percent per annum, and the Corporation, acting through its Board of Directors, may bring an action at law against the Owner personally obligated to pay the same, or foreclose the lien against the Lot to which the assessment is levied, and interest, costs and reasonable attorney's fees, including at all appellate levels, of any such action shall be added to the amount of such assessment. Additionally, the Board of Directors of the Corporation may at its discretion impose a late fee not to exceed Twenty-Five and NO/lOa ($25.00) Dollars. No Owner may waive or otherwise escape liability for the assessments provided for herein by non-use of the Common Area or abandonment of his Lot. Section 9. Subordination of the Lien to Mortgages. The lien of the assessments provided for herein shall be superior to all other liens save and except tax liens and the liens of any bona fide institutional first mortgage to an institutional first mortgagee, provided, however, that said mortgage liens are first liens against the property encumbered thereby, subject only to tax liens, and secure indebtednesses payable in constant monthly or quarter annual payments over a period of not less than five (5) years, and with a balloon payment thereafter if provided for in the mortgage or the note secured thereby. Section 10. Exempt Property. The following Property subject to this Declaration shall be exempt from the assessments created herein: (a) any portion of the Property dedicated to and accepted by a local public authority; (b) the Common Area; (c) any portion 9 of the Property which is designated and/or reserved for easements; and (d) any portion of the Property owned by a charitable or non- profit organization exempt from taxation by the laws of the state of Florida. However, no land or improvements devoted to dwelling use shall be exempt from said assessments. ARTICLE XIII BOOKS AND RECORDS The books, records and papers of the Corporation shall, at all times I during reasonable business hours I be subject to inspection by any Member. The Declaration, the Articles and these By-Laws shall be available for inspection by any Member at the principal office of the corporation, where copies may be purchased at a reasonable cost. ARTICLE XIV CORPORATE SEAL The Corporation shall have a seal having the words Summers Mill Homeowners' Association, Inc., a not-for-profit Florida corporation. ARTICLE XV AMENDMENTS Section 1. Procedure. These By-Laws may be amended, at a duly called regular or special meeting of the Members, by a vote of fifty-one (51%) percent of the Members present in person or by proxy, except that if at the time an amendment is proposed there are any mortgages encumbering any Lot insured by the Federal Housing Administration, guaranteed by the Veterans Administration or held by the Federal National Mortgage Corporation, then the Federal Housing Administration, the Veterans Administration or the Federal National Mortgage Corporation shall have the right to veto amendments while there is a Class B membership, otherwise said right of veto will not exist. section 2. Conflict with Declaration. In the case of any conflict between the Articles and these By-Laws, the Articles shall control; and in the case of any conflict between the Declaration and these By-Laws, the Declaration shall control. 10