Declaration of Covenants, Conditions, Restrictions, Easements &
Building Guidelines
for
Progresso Heights
This Declaration of Covenants, Conditions, Restrictions, Easements &
Building Guidelines (this “Declaration”) is made
this 10th day of May 2004, by Progresso Heights Limited, a
Belize corporation (“Declarant”).
Part One
Introduction to the Community
Declarant, as the developer of Progresso Heights (the “Community”),
has established this Declaration to provide a governance structure and a
flexible system of standards and procedures for the overall development,
expansion, administration and maintenance of the Community as a mixed-use,
master planned development, and for the preservation of property values
therein.
Article I
Creation of the Community
1.1 Purpose & Intent. Declarant is or
shall be the holder of fee-simple title to the land described in
Exhibit A. Declarant intends that the covenants, conditions,
restrictions, easements and building guidelines set forth in this
Declaration shall mutually benefit and burden all Owners of land within
the Community, and the provisions of this Declaration shall contribute to
the value of every Owner’s property, preserve the scenic beauty of the
Community’s natural surroundings, promote the safe and family-oriented
development of the Community, and foster a gracious way of living for all
Owners and occupants of land within the Community. Every Owner who
purchases land within the Community shall be deemed to have done so
voluntarily, with knowledge of each and every one of the provisions of
this Declaration and the Exhibits attached hereto and after having the
opportunity to consult with counsel of his/her/its choosing.
By recording this Declaration, Declarant intends to
establish a general plan of development for the Community and to provide
flexible and reasonable procedures for the Community’s future expansion
and for its overall development, administration, maintenance and
preservation. An integral part of Declarant’s general plan of development
for the Community will be the formation of Progresso Heights Community
Association Limited, a Belize corporation, comprised of all Owners of land
within the Community for the following purposes: to own the Common Area;
to operate, maintain, repair and replace the improvements constructed or
installed within the Area of Common Responsibility; and to enforce the
provisions of this Declaration and the other Community Documents.
1.2 Binding Effect. By recording this
Declaration, Declarant hereby submits and subjects all of the land
described in Exhibit A to the covenants, conditions,
restrictions and easements set forth in this Declaration. The land
described in Exhibit A shall be owned, conveyed, leased,
encumbered, improved and used subject to the covenants, conditions,
restrictions and easements set forth in this Declaration, which shall run
with the title to the land. This Declaration shall be binding upon all
Persons or Entities having any right, title, or interest in any land
within the Community, their heirs, successors, successors-in-title and
assigns, and shall inure to the benefit of each Owner of any parcel of
land within the Community.
1.3 Community Documents. The Community
Documents consist of the following: this Declaration and any Supplemental
Declarations applicable to portions of the Community; the Association’s
Articles of Association and Memorandum of Association; the Rules &
Regulations described in Article IV; the Architectural Guidelines
described in Article VI; and such Resolutions of general application as
the Association’s Board of Directors may duly adopt in accordance with
this Declaration, the Articles and the Memorandum of Association; as they
all may be amended from time to time.
The Community Documents apply to all Owners and occupants
of land within the Community, as well as to their respective tenants,
guests and invitees. If a Unit is leased, the lease shall provide that
the tenant and all occupants of the leased Unit are bound by and obligated
to comply with the Community Documents.
Notwithstanding any other provision of this Declaration,
Declarant may record one or more Supplemental Declarations or other
declarations of covenants applicable to any portion of the Community,
which declare additional restrictions or provisions that are more
restrictive than the provisions of this Declaration; in such event, the
more restrictive provisions shall control.
1.4 Neighborhood Documents. Some
Neighborhoods within the Community may be subject to additional covenants,
conditions, restrictions and easements to be administered by a
Neighborhood Association. In such case, if there is a conflict between or
among the Community Documents and any such additional covenants or
restrictions, or the Community Documents and the policies of any
Neighborhood Association, the Community Documents shall control. The
Association may, but shall not be obligated to, enforce any such
covenants, conditions, restrictions, easements or other instruments
applicable to any Neighborhood.
Article II
Concepts & Definitions
The uncapitalized words and terms used in the Community
Documents shall generally be interpreted in accordance with their natural,
commonly accepted meanings, unless otherwise defined herein. As used in
this Declaration and the other Community Documents, capitalized words and
terms shall have the specific meanings set forth below. Additional words
and terms may be defined on the first occasion that they appear in the
text of the Community Documents.
2.1 “Architectural Guidelines” (or the
“Guidelines”) means the guidelines and standards for the architecture,
design, and exterior items of improvements and landscaping constructed or
installed within the Units, adopted pursuant to Article VI, and as they
may be amended at any time and from time to time. The Architectural
Guidelines establish architectural standards and procedures for the review
of proposed improvements and modifications to Units, including structures,
landscaping and other improvements within the Units. A copy of the
initial Guidelines, as promulgated by Declarant, is attached in Article
VI.
2.2 “Architectural Review Board” (or the
“ARB”) means that certain committee, appointed by the Board of Directors,
and granted the authority to review the plans and specifications for
proposed improvements to be constructed or installed within a Unit, and to
approve or reject the same in accordance with Article VI and the
Architectural Guidelines. The authority of the Architectural Review Board
shall include the right to review the plans and specifications for any
proposed modification to the existing improvements previously constructed
or installed within a Unit.
2.3 “Area of Common Responsibility” means
the Common Area, together with such other areas, if any, for which the
Association has been assigned or may assume the responsibility to operate,
maintain, repair and replace the improvements constructed or installed
thereon, pursuant to the terms of this Declaration, any Supplemental
Declaration, or other applicable covenants, contracts or agreements.
2.4 “Articles of Association” (or the
“Articles”) means the Articles of Association of Progresso Heights
Community Association Limited, as they may be amended from time to time.
The Articles establish the Association as a Belize corporation under the
law of Belize. A copy of the initial Articles, as and when filed by
Declarant is or shall be attached hereto as Exhibit B.
2.5 “Assessment” means the obligation of
an Owner to pay a determined or estimated sum of money, or share thereof,
levied by the Association in accordance with this Declaration and the
Memorandum, in order to fund the expenses of the Association incurred on
behalf of one or more Owners. As used in this Declaration and the other
Community Documents, the term “Assessment” includes the following
particular categories of Assessments:
(a) “General Assessment” means the
Assessment levied on all Units subject to Assessments pursuant to Section
10.4, in order to fund the Common Expenses for the general benefit of all
Units pursuant to Section 10.1.
(b) “Special Assessment” means an
Assessment levied on all Units subject to Assessments pursuant to Section
10.6, in order to fund capital improvements for the benefit all Units or
emergency expenses of the Association pursuant to Section 10.1.
(c) “Specific Unit Assessment” means an
Assessment levied on one or more, but fewer than all Units, in order to
fund expenses incurred for the particular benefit of, or because of the
acts or omissions of, the Owner or Owners of such particular Unit or Units
pursuant to Section 10.6.
(d) “Neighborhood Assessment” means an
Assessment levied against the Units in a particular Neighborhood, or
Neighborhoods to fund Neighborhood Expenses, as more particularly
described in Section 10.7.
2.6 “Association” means Progresso Heights
Community Association Limited, a Belize corporation, and its successors
or assigns. The Association shall hold title to the Common Area, and is
vested with the authority to operate and maintain the Area of Common
Responsibility, to maintain, repair and replace the improvements
constructed or installed thereon, to administer the Community, and to
enforce the provisions of this Declaration and the other Community
Documents.
2.7 “Board of Directors” (or the “Board”)
means the governing body responsible for the administration of the
Association, selected as provided in the Articles and the Memorandum of
Association, and generally serving the same role as a board of directors
under the corporate law of Belize. “Director” means an individual
member of the Board.
2.8 “Builder” means any Person or Entity
who purchases one or more Units for the purpose of constructing
residential improvements for later resale to one or more consumers, or who
purchases one or more parcels of land within the Community for further
subdivision, development or resale in the ordinary course of such
Builder’s business. Any Person or Entity who occupies or leases a Unit
for residential purposes shall immediately cease to be a “Builder” with
respect to the Unit so occupied or leased, notwithstanding that such
Person or Entity originally purchased the Units for the purpose of
constructing residential improvements for later resale to consumers.
2.9 “Charge” means a mortgage, charge, a
deed of trust, a deed to secure debt, or any other form of security
instrument encumbering title to any Unit.
2.10 “Chargee” means mortgagee, the holder
or beneficiary of a Charge.
2.11 “Common Area” means all real property, including
easements, including those improvements constructed or installed thereon,
which the Association owns, leases, or in which it otherwise holds
possessory or use rights for the common use and enjoyment of the Owners.
As used in this Declaration, the term shall include the Limited Common
Area, as defined and described in Section 2.22, unless specifically
excluded.
2.12 “Common Expenses” means the actual and
estimated expenses incurred, or anticipated to be incurred, by the
Association for the general benefit of all Owners, including any
reasonable Reserves, as the Board may find or deem necessary and
appropriate pursuant to the Community Documents. The Common Expenses
shall not include any expenses incurred for the initial development or
other costs of constructing or installing the original subdivision
improvements within the Community, unless Voting Members representing a
majority of the total Class “A” votes approve.
2.13 “Community” means the land described
in Exhibit A, as may be subjected to this Declaration.
2.14 “Community Documents” means,
collectively, this Declaration and any Supplemental Declaration, the Plat
and/or Master Plan, the Articles of Association, the Memorandum of
Association, the Rules & Regulations, the Architectural Guidelines, and
the Resolutions of general application duly adopted by the Board of
Directors, as they all may be amended from time to time.
2.15 “Community-Wide Standard” means the
standard of conduct, maintenance, or other activity generally prevailing
within the Community, or the minimum standards established pursuant to
this Declaration, the Architectural Guidelines, the Rules & Regulations,
and the Resolutions of general application duly adopted by the Board of
Directors, whichever is the highest standard. Declarant shall initially
establish the Community-Wide Standard, and it may contain both objective
and subjective elements. The Community-Wide Standard may evolve as
development progresses and as the needs and desires of the Owners change,
but in no event may a change in custom serve to amend this Declaration or
any of the Community Documents.
2.16 “Covenant to Share Costs” means the
Declaration of Easements and Covenant to Share Costs that Declarant has
executed and recorded. The Covenant to Share Costs grants or declares
easements for the benefit of the Association and/or the present and future
owners of the subject land, and provides for the sharing of the costs of
maintaining property described therein.
2.17 “Declarant” means Progresso Heights
Limited, a Belize corporation, or any successor or assign who takes title
to any portion of the land described in Exhibit A for the
purpose of developing and selling such land and who is designated as a
“successor Declarant” in an instrument that is executed and recorded by
the immediately preceding Declarant; provided, however, that there shall
never be more than one “Declarant” at any time.
2.18 “Declarant Control Period” means the
period of time during which Declarant is entitled to appoint a majority of
the members of the Board of Directors as provided in Section 10, Article
11 of this Declaration. The Declarant Control Period shall terminate on
the first to occur of the following events:
(a) when certificates of occupancy have been
issued for the Homes constructed within ninety percent (90%) of the total
number of Units permitted by the Master Plan for the land described in
Exhibit A and such Units have been conveyed to Class “A”
Members other than the Builders;
(b) December 31, 2015; or
(c) when, in its discretion, the Class “B”
Member so determines.
2.19 “Declaration” means this Declaration
of Covenants, Conditions, Restrictions, Easements & Building Guidelines
for Progresso Heights as recorded in the Public Records of Belize, and as
it may be amended from time to time. This Declaration creates obligations
that are binding upon Declarant, the Association and all present and
future Owners.
2.20 “Entity” means any corporation,
partnership, limited liability company, or any other legally created and
validly existing entity.
2.21 “Home” means the permanent
improvements constructed within a Unit or Homesite for the purposes of
providing a single-family residential dwelling to the Owner and/or other
occupants of such Home.
2.22 “Limited Common Area” means a portion
of the Common Area set aside for the exclusive use and primary benefit of
one or more, but less than all, Owners or Neighborhoods, as the case may
be, as more particularly described in Article XIII.
2.23 “Master Plan” means the land use plan
for the development of the Community prepared by Declarant, and approved
or to be approved by the Government of Belize, including, for example, the
Ministry of Natural Resources, and as it may be amended from time to
time. The Master Plan includes all of the land described in Exhibit
A.
2.24 “Member” means a Person or Entity
subject to mandatory membership in the Association pursuant to Section
8.2. Pursuant to Section 8.3, there shall initially be two classes of
Members: (a) the “Class ‘A’ Members,” who shall include all Owners
other than Declarant; and (b) the “Class ‘B’ Member,” or Declarant.
2.25 “Memorandum of Association” means the
Memorandum of Association of Progresso Heights Community Association
Limited, as it may be amended from time to time. The Memorandum of
Association governs the Association’s internal affairs, including, without
limitation, the procedures for voting, elections, and meetings. A copy of
the initial Memorandum of Association, as adopted by Declarant, is
attached to this Declaration as Exhibit C.
2.26 “Neighborhood” means a group of Units
designated, pursuant to Section 8.5, as a separate “Neighborhood” within
the Community for one or more of the following purposes: sharing the use
and enjoyment of a designated Limited Common Area; or receiving other
benefits or services from the Association that are not provided to all
Units; or electing Voting Members. A Neighborhood may be comprised of
more than one type of Home, and may include non-contiguous parcels of
land. If the Association provides benefits or services to fewer than all
Units within a particular Neighborhood, then the benefited Units shall
constitute a sub-Neighborhood for purposes of determining and levying
Neighborhood Assessments for such benefits or services. Where the context
permits or requires, the term Neighborhood shall also refer to the
Neighborhood Committee, as established in accordance with the Memorandum
of Association, or the Neighborhood Association, if any, having concurrent
jurisdiction over the land within the Neighborhood. Neighborhood
boundaries may be established and modified as provided in Section 8.5.
2.27 “Neighborhood Association” means a
strata-title association and/or other property owners association, if any,
having jurisdiction over any Neighborhood concurrent with, but subordinate
to, the jurisdiction of the Association. Nothing in this Declaration
shall be construed to require the creation of any Neighborhood
Association.
2.28 “Neighborhood Expenses” means the
actual and estimated expenses, which the Association incurs or expects to
incur for the benefit of the Owners of the Units within a particular
Neighborhood or Neighborhoods. Neighborhood Expenses may include a
reasonable Reserve for capital repairs and replacements, and a reasonable
administrative charge, as may be authorized pursuant to this Declaration
or in the Supplemental Declaration applicable to such Neighborhood or
Neighborhoods.
2.29 “Officer” means one of the Persons
selected by the Board of Directors, in accordance with the Memorandum of
Association, to administer the day-to-day affairs of the Association.
2.30 “Owner” means, collectively, the
Persons or Persons who, and/or the Entity or Entities that, hold record
fee-simple title to any Unit, but excludes any Person or Entity that holds
an interest in a Unit merely as security for the performance of an
obligation. The present holder of a record life estate in any Unit shall
be deemed to be the Owner of such Unit during the term of the life
estate. If a Unit is sold under a recorded installment land sales
contract, contract for deed or similar contractual arrangement, and such
contract specifically so provides, the contract purchaser (rather than the
fee owner) shall be considered the Owner.
2.31 “Person” means a natural person,
including a trustee or other fiduciary acting on behalf of a Person or
Persons who are the beneficiaries or equitable owners under a trust or
similar arrangement.
2.32 “Plat” means the recorded subdivision
plat (or plats), approved by the Government of Belize, that subdivides the
land subject to this Declaration and thereby creates the Units, Common
Area, and Public Streets within the Community. The Plat may set forth
restrictions, easements or other provisions in addition to those set forth
in this Declaration. As used in this Declaration, the term “Plat” may
include a recorded strata plot plan creating strata title units within the
Community.
2.33 “Public Streets” means and includes
those streets and roads, as set forth on the Plat and/or Master Plan, as
well as related improvements, constructed or installed within the
rights-of-way dedicated to the Government of Belize.
2.34 The uncapitalized terms “record,” “recording,”
and “recorded,” as used in this Declaration and the other Community
Documents, shall refer to the filing of a legal instrument, executed with
all of the formalities required of a deed, in the Public Records of
Belize, or such other records of the Government of Belize as may be
designated as the appropriate location for the recording of subdivision
plats and similar documents affecting title to real estate, as applicable.
2.35 “Reserves” means those funds set aside
and reserved for capital repair and replacements of the improvements
constructed or installed within the Common Area and the Area of Common
Responsibility (to the extent that the Association has assumed or been
assigned the responsibility for such repairs and replacements to the
improvements within the Area of Common Responsibility).
2.36 “Resolution” means a resolution duly
adopted by the Board of Directors, at any time and from time to time, in
accordance with this Declaration, the Articles of Association and the
Memorandum of Association. A Resolution of general application may
establish policies and procedures for the internal governance and
activities of the Association, regulate the operation and use of the
Common Area, or amend, replace or repeal any Resolution previously
adopted.
2.37 “Rules & Regulations” (or the “Rules”)
means the Rules & Regulations of the Community, as they may be amended
from time to time pursuant to Article IV. The Rules regulate the use of
the Units, the Common Area and the Area of Common Responsibility in the
interests of the health, safety and welfare of the Owners. A copy of the
initial Rules & Regulations, as promulgated by Declarant, is attached
hereto as Exhibit D.
2.38 “Supplemental Declaration” means an
instrument recorded in the public records of Belize, which may grant or
declare easements, and impose additional obligations or restrictions upon
the Community; or designate Neighborhoods, and may also refer to an
instrument executed and recorded by Declarant to designate Voting Groups
pursuant to Section 8.5(c).
2.39 “Unit” means a portion of the
Community, whether improved or unimproved, which may be separately owned
and is intended for development, use and occupancy as an attached or
detached residence for a single family. The term shall include the land,
if any, which is part of the Unit as well as any improvements constructed
or installed thereon. In the case of a strata-title unit such as a
condominium, townhouse, carriage-home, or similar structure containing
multiple dwellings, each dwelling shall be deemed to be a separate Unit.
Units may be combined or further subdivided, and boundary
lines of Units may be changed, only by the recording of a Plat or other
legal instrument further subdividing or re-subdividing the parcel of
property (which subdivision shall be subject to such other restrictions as
may be set forth in this Declaration or rules of the Association). Absent
the recording of such a plat or other legal instrument, ownership of
adjacent Units by the same Owner shall not permit such Units to be treated
as a single Unit for purposes of voting and Assessments, notwithstanding
that such Units may be improved by constructing a single dwelling
thereon. Notwithstanding anything contained herein to the contrary,
Declarant or its approved designees may subdivide a parcel or Unit.
2.40 “Voting Group” means one or more
Voting Members who vote on a common slate for election of the Directors,
as more particularly described in Section 8.5(c), or, if the context so
indicates, the group of Members whose Units are represented by such Voting
Members.
2.41 “Voting Member” means the
representative selected by the Class “A” Members within each Neighborhood
pursuant to Section 8.5(b) to cast the Class “A” votes attributable to
their Units on all matters requiring a vote of the membership (except as
otherwise specifically provided in this Declaration and in the Memorandum
of Association). The term “Voting Member” shall also refer to alternate
Voting Members acting in the absence of the Voting Member and any Owners
authorized personally to cast the votes for their respective Units
pursuant to Section 8.5(b).
Part Two
Creation & Maintenance of Community-Wide Standards
This Declaration declares certain restrictions regarding
conduct, use, maintenance, architecture, landscaping and other matters
within the Community, and establishes procedures for adopting, modifying,
applying, and enforcing such standards while providing the flexibility for
the Community-Wide Standards to evolve as the Community changes and grows
over time. The Community-Wide Standards for conduct, use, maintenance,
architecture, landscaping and other matters within the Community are what
embodies the Community’s identity and makes it a place that people want to
call “home,” and every Owner and occupant of a Unit may take pride in
upholding such standards and in the results of that common effort.
Article III
Use & Conduct Restrictions
3.1 Imposition of Covenants Regarding Use &
Conduct. Declarant, for itself and for its successors-in-title to all
land within the Community, hereby covenants and agrees that such land
shall be subject to the restrictive covenants regarding the use of land
and the conduct of Persons or Entities set forth in this Article III, as
well as the Rules & Regulations adopted pursuant hereto, and hereby
declares that the Association is authorized to enforce such covenants and
Rules pursuant to this Declaration and the other Community Documents.
Every Owner of land within the Community, by its acceptance of a deed or
other instrument conveying title to such land, shall be deemed to have
covenanted and agreed to comply with such covenants and Rules or the
sanctions imposed by the Association for failure to comply therewith.
3.2 Residential Use. No one may use any
Unit for any purpose other than the construction and occupation of an
attached or detached Home, except as otherwise expressly provided in this
Declaration and with respect to those parcels designated on the Master
Plan as a commercial parcel.
3.3 Vehicle Parking, Storage, Maintenance &
Repairs. The parking, storage, maintenance and repair of all vehicles
within the Community shall be subject to the following restrictions:
(a) Parking Generally. Every Owner and
other occupant of a Unit shall park their vehicles completely within such
Unit’s garage, carport or driveway when not in use or on the Public
Streets, as permitted by the Community Documents. No one may park their
vehicle elsewhere within the Community, including, but not limited to,
within the rights of way of the Public Streets, within the Common Area
(except in Common Area parking areas designated for such purpose), or
elsewhere within any Unit (except within such Unit’s garage, carport or
driveway).
(b) Inoperable Vehicles. No one may
park any inoperable vehicle, or any vehicle that lacks a current operating
license or registration, anywhere within the Community, except completely
within a Unit’s garage or carport.
(c) Commercial & Service Vehicles.
Service and delivery vehicles may be parked within the driveway of a Unit
or the designated parking areas within the Common Area, during daylight
hours, for such period of time as is reasonably necessary to provide
service or to make a delivery to a Unit or the Common Area. The Owner or
other occupant of a Unit may park a business or commercial pickup, or
similar van or light truck, within the driveway of Unit, overnight,
provided such business or commercial vehicle is also such Owner’s
principal means of private transportation. No one may otherwise park any
commercial vehicle anywhere within the Community except on the portions of
the Community where commercial use is considered permissible, as
reflected on the Master Plan.
(d) Construction Vehicles & Equipment.
No one may park any construction or farm vehicle or equipment anywhere
within the Community; provided, however, that construction vehicles and
equipment may be parked within a Unit or the Common Area during the
construction or installation of improvements thereon, as is reasonably
necessary to complete such improvements; provided further, farm vehicles
may be parked in ARB approved commercial areas.
(e) Recreational Vehicles, Etc. No one
may park any recreational vehicle, including, without limitation, travel
trailers, mobile homes, towed campers, trucks with mounted campers, and
all similar vehicles, anywhere within the Community; provided, however,
that the Owner or other occupant of a Unit may park a recreational vehicle
on the driveway of a Unit for no more than a fourteen (14) consecutive day
period but only if a Home is fully constructed on said Unit, exclusively
for the purposes of loading and unloading such vehicle. No one may sleep
or otherwise reside in a recreational vehicle while it is present within
or upon a Unit.
(f) Boats & Other Watercraft. No one
may park any boat or other watercraft or their trailers anywhere within
the Community, except that the Owner or other occupant of a Unit may park
a boat or other watercraft and its trailer completely within such Unit’s
garage or carport. No one may sleep or otherwise reside in a boat or
other watercraft while it is present within or upon a Unit.
(g) Vehicle Maintenance & Repairs. No
one may perform vehicle maintenance or repairs anywhere within the
Community, except that the Owner or other occupant of a Unit may perform
such maintenance or repairs within such Unit’s garage or carport, after
taking necessary and appropriate precautions for ventilation.
The
Association may adopt Rules & Regulations that further regulate vehicle
parking, or that provide temporary exceptions for vehicle parking for
special occasions (such as parties, receptions and other short-term social
functions); provided, however, that the Association shall make no
exception for overnight parking within the right of way of any of the
Public Streets. The Board of Directors, or its designee, may cause any
vehicle that is parked in violation of this Section 3.3, or the Rules
adopted pursuant hereto, to be towed and removed from the Community, all
at the Owner’s or occupant’s cost and expense.
3.4 Use of Motorized Vehicles within Common
Area. No one may park or operate a motorized vehicle on the pathways
or trails owned or maintained by the Association.
3.5 Storage of Flammable Fuels, Etc.
Except on those Units designated Commercial Units, no one may store
gasoline, heating oil, or other flammable fuels or liquids within the
Community; provided, however, that the Owner or occupants of a Unit may
store a reasonable amount of fuel within the garage of the Unit for
emergency purposes and the operation of gas grills, lawn mowers and
similar tools or equipment, not to exceed five (5) gallons. The
Association may store fuel for the operation of maintenance vehicles,
generators, and similar equipment. This covenant shall not apply to any
underground fuel storage tank authorized pursuant to Article IV.
3.6 Pets & Other Animals. Owner(s) or
other occupants of a Unit may keep a reasonable number of dogs, cats,
horses, or other usual and common household pets within such Unit. No one
shall permit any pet, animal, or livestock to roam free, make
objectionable noise, or endanger the health or safety of, or constitute a
nuisance or inconvenience to, the Owners or other occupants of other
Units. Any pet that violates this Section 3.6, in the sole discretion of
the Board of Directors, shall be removed from the Unit and the Community
upon the Board’s request. If the owner of such pet fails to honor such
request, the Board may cause the pet to be removed from the Unit and the
Community, and all costs and expenses of such removal shall be the
responsibility of the Unit Owner. Pet owners shall keep their dogs on a
leash, or otherwise confined in a manner acceptable to the Board, whenever
their dogs are present outside their Homes. All pets shall be registered,
licensed and inoculated as required by applicable laws, codes and
ordinances. The Association may adopt Rules & Regulations that further
regulate the keeping of pets within the Community, including, but not
limited to, the restriction of the number of animals that may be kept
within a Unit, the prohibition of certain species or breeds, and the
regulation or prohibition of pet activities within the Common Area.
Every pet owner shall be strictly responsible for the
behavior of such owner’s pet, including, for example, any damage to
property or injury to Persons caused by such pet, and shall indemnify,
defend and hold Declarant, the Association and every other Owner or
occupant of a Unit completely free and harmless from and against any and
all damage or injury caused by such pet.
3.7 Compliance with Applicable Laws, Etc.
No one shall engage in any activity within the Community that violates any
applicable any law, ordinance or regulation of Belize, as they may be
amended from time to time; provided, however, that the Association shall
have no obligation to enforce any such law, ordinance or regulation in the
event of a violation.
3.8 Foul or Obnoxious Odors. No one
shall engage in any activity within the Community that emits foul or
obnoxious odors or creates noise or other conditions, which tends to
disturb the peace or threaten the safety of the Owners or other occupants
of other Units. The Association may adopt Rules & Regulations that
further regulate such activities that tend to cause foul or obnoxious
odors, including, but not limited to, further restricting or prohibiting
certain specified activities.
3.9 Loud or Obnoxious Noises. No one
shall use or discharge any radio, loudspeaker, horn, whistle, bell, or
other sound device so as to be audible to the Owners or other occupants of
other Units, except alarm devices used exclusively for security purposes.
The Association may adopt Rules & Regulations that further regulate such
activities that tend to cause loud or obnoxious noises, including, but not
limited to, further restricting or prohibiting certain specified
activities.
3.10 Unclean or Untidy Conditions. No one
may pursue any hobby or engage in any other activity that tends to cause
an unclean, unhealthy, or untidy condition to exist outside of the
enclosed structures within a Unit. The Association may adopt Rules &
Regulations that further regulate such activities that tend to cause
unclean, unhealthy or untidy conditions, including, but not limited to,
further restricting or prohibiting certain specified activities.
3.11 Nuisances & Other Offensive Activities.
No one may engage in any noxious or offensive activity that, in the
reasonable determination of the Board of Directors, tends to cause
embarrassment, discomfort, annoyance or nuisance to the Owners or
occupants of the Units. The Association may adopt Rules & Regulations
that further regulate such activities, including, but not limited to,
further restricting or prohibiting certain specified activities.
3.12 Burning of Trash, Etc. No one may
engage in the burning of trash, leaves, debris or other materials;
provided, however, that Declarant, a Builder, or other contractor may
engage in such burning during the normal course of constructing or
installing improvements within a Unit or the Common Area. The Board of
Directors, or the Architectural Review Board, as applicable, may adopt
Rules & Regulations, or Architectural Guidelines, that further regulate
such activities, including, but not limited to, the time, place and manner
of such burning.
3.13 Disposal of Certain Materials. No one
may dump grass clippings, leaves or other debris, petroleum products,
fertilizers, or other potentially hazardous or toxic substances in any
drainage ditch, stream, creek or river, or elsewhere within the Community;
provided, however, that fertilizers may be applied to landscaping within
the Units or the Common Area, provided care is taken to minimize the
run-off therefrom.
3.14 Garbage Receptacles & Collection. No
one may deposit, accumulate or keep garbage, recycling materials or yard
refuse within a Unit or anywhere else within the Community, except in
closed, sanitary receptacles or recycling bins between the regular
collection times of such garbage, recycling materials or yard refuse. The
Association may adopt Rules & Regulations that further regulate the
storage and collection of garbage, recycling materials and yard refuse,
including, but not limited to, prescribing collection times, the type of
receptacles to be used, and the proper storage of such receptacles between
regular collection times.
3.15 Use of
Water Bodies. The Association shall not be responsible for any loss,
damage, or injury to any Person or property arising out of the authorized
or unauthorized use of rivers, lakes, ponds, creeks, streams or other
bodies of water within or adjacent to the Community. The Association may
adopt Rules & Regulations that further regulate such water-related
activities, including, but not limited to, further restricting or
prohibiting certain specified activities. NEITHER DECLARANT, ASSOCIATION
NOR ANY OF THEIR OFFICERS, DIRECTORS, COMMITTEE MEMBERS, EMPLOYEES,
MANAGEMENT AGENTS, CONTRACTORS OR SUBCONTRACTORS (COLLECTIVELY, THE
“LISTED PARTIES”) SHALL BE LIABLE OR RESPONSIBLE FOR MAINTAINING OR
ASSURING THE SAFETY, WATER QUALITY OR WATER LEVEL OF/IN ANY RIVER, LAGOON,
LAKE, POND, CANAL, CREEK, STREAM, OR OTHER WATER BODY WITHIN THE
COMMUNITY, EXCEPT AS SUCH RESPONSIBILITY MAY BE SPECIFICALLY IMPOSED BY,
OR CONTRACTED FOR WITH, AN APPLICABLE GOVERNMENTAL OR QUASI-GOVERNMENTAL
AGENCY OR AUTHORITY. FURTHER, NONE OF THE LISTED PARTIES SHALL BE LIABLE
FOR ANY PROPERTY DAMAGE, PERSONAL INJURY, OR DEATH OCCURRING IN, OR
OTHERWISE RELATED TO, ANY WATER BODY, ALL PERSONS USING SAME SHALL BE
DOING SO AT THEIR OWN RISK.
ALL OWNERS AND OCCUPANTS
OF ANY PORTION OF THE COMMUNITY LOCATED ADJACENT TO OR HAVING A VIEW OF
ANY OF THE AFORESAID WATER BODIES, INCLUDING, FOR EXAMPLE, THE RIVER OR
LAGOON, SHALL BE DEEMED, BY VIRTUE OF THEIR ACCEPTANCE OF THE DEED TO OR
USE OF, SUCH UNIT, TO HAVE AGREED TO RELEASE THE LISTED PARTIES FROM ALL
CLAIMS FOR ANY AND ALL CHANGES IN THE QUALITY AND LEVEL OF THE WATER IN
SUCH BODIES.
ALL PERSONS ARE HEREBY
NOTIFIED FROM TIME TO TIME WILDLIFE MAY HABITAT ON OR ENTER INTO WATER
BODIES WITHIN OR NEARBY THE PROPERTIES AND MAY POSE A THREAT TO PERSONS,
PETS AND PROPERTY, BUT THAT THE LISTED PARTIES ARE UNDER NO DUTY TO
PROTECT YOU AGAINST AND DO NOT IN ANY MANNER WARRANT OR INSURE AGAINST ANY
DEATH, INJURY OR DAMAGE CAUSED BY SUCH WILDLIFE.
3.16 Use of Firearms. No one may discharge
any firearm, crossbow or similar weapon within the Community; provided,
however, that the Association shall have no obligation to prevent or stop
such discharges.
3.17 Wildlife. No one may capture, trap,
or kill any wildlife within the Community, except as expressly approved by
the Board of Directors, and as necessary to preserve the health, safety
and welfare of residents of the Community.
3.18 Preservation of Environment. No one
may engage in any activity that materially disturbs or destroys the
vegetation, wildlife, wetlands, or air quality within the Community, uses
excessive amounts of water, or results in unreasonable levels of sound or
light pollution.
3.19 Conduct of Business Activities.
Except on those Units designed on the Master Plan as Commercial Units, no
one may engage in any business, trade, garage sale, moving sale, rummage
sale, or similar activity within the Community; provided, however, that
the Owner or other occupant of a Unit may maintain and use a “home office”
within the Unit provided that such business activity: (i) is not apparent
or detectable by sight, sound, or smell from outside the Unit; (ii)
conforms to all zoning and other land use requirements of Belize or any
other governmental body having jurisdiction over the Community; (iii) does
not involve door-to-door solicitation of the Owners or occupants of any
Unit; (iv) does not, in the reasonable judgment of the Board of Directors,
generate a level of vehicular or pedestrian traffic or a number of
vehicles being parked within the Community which is noticeably greater
than that which is typical of Units in which no home office is maintained;
and (v) is consistent with the residential character of the Community and
does not constitute a nuisance, or a hazardous or offensive use, or
threaten the security or safety of other residents of the Community, as
may be determined in the Board’s sole discretion. The terms “business”
and “trade,” as used in this Section 3.19, shall be construed to have
their ordinary, generally accepted meanings and shall include, without
limitation, any occupation, work, or activity undertaken on an on-going
basis which involves the provision of goods or services for which the
provider receives a fee, compensation, or other form of consideration,
regardless of whether such activity: (i) is engaged in full or part-time;
(ii) is intended to be for-profit or not-for-profit; or (iii) requires a
license. The leasing of a Unit shall not be considered a business or
trade within the meaning of this Section 3.19. This Section 3.19 shall
not apply to any activity conducted by Declarant, or a Builder approved by
Declarant, including, but not limited to, the sale or lease of any Unit(s)
that Declarant or a Builder owns, the operation of a timeshare or similar
program, or related marketing and sales activities.
3.20 Solicitations. No one may engage in
commercial or charitable door-to-door solicitations within the Community;
provided, however, that the Board of Directors may permit charitable
organizations to conduct such solicitations, as approved in writing. The
Association may adopt Rules & Regulations that further regulate
solicitation activities, including, but not limited to, prescribing the
time, place and manner of solicitations, and identifying certain
charitable organizations that may solicit contributions within the
Community.
3.21 Time Shares, Etc. No one may use any
Unit for the operation of a time-sharing, fraction-sharing, or similar
program whereby the right to the exclusive use of the Unit rotates among
participants in the program on a fixed or floating time schedule over a
period of years; provided, however, that Declarant, or its assigns, may
operate such a program with respect to Units which it, or its assigns,
owns.
3.22 Leasing of Units. The Owner of a Unit
may lease such Unit for residential purposes only. Every lease of a Unit
shall be in writing, shall transfer possession of the entire Unit and not
a portion or portions thereof, and shall require the lessee and other
occupants of the Unit to comply with the requirements of this Declaration
and each of the other Community Documents, as they each may be amended or
supplemented. The Owner shall provide the lessee with current copies of
this Declaration and the other Community Documents. The Association may
adopt Rules & Regulations that further regulate leasing activities,
including, but not limited to, prescribing the form of written lease, or
requiring the registration of the lessee with the Association. The terms
“lease” and “leasing,” for purposes of this Section 3.22, shall refer to
the regular, exclusive occupancy of a Unit by any Person, other than the
Owner, for which the Owner receives any consideration or benefit,
including, but not limited to, rent, fees, or in-kind services.
3.23
Community Reserves. All
portions of the Properties subject to the Community Reserves shall be
known as “Open Spaces” and shall be generally left in their natural
state. Any proposed alteration of a community reserve area, including the
removal of fallen limbs, dead trees or other natural debris, shall require
the written consent of the ARB and, during the Declarant Control Period,
the written consent of the Declarant.
3.24
Maya Artifacts. Maya artifacts are considered the possession of the
Government of Belize; however, such artifacts may be displayed within the
Community. Removal of the artifacts from the Community is considered a
material breach of this Declaration and such acts or omissions will
subject such Owner or occupant to the fines and other sanctions of this
Declaration.
Article IV
Rules & Regulations
4.1 Framework for Regulation. This
Declaration establishes, as part of the general plan of development for
the Community, a framework of covenants, restrictions and easements, which
govern the Community. This Declaration also provides for the
promulgation, modification and expansion of the Rules & Regulations, which
regulate the use of the Units and the Common Area in the interests of the
health, safety and welfare of the Owners and other occupants of the Units,
which Rules shall complement the restrictive covenants. Within that
framework, the Board of Directors and the Members shall have the
flexibility to respond to unforeseen problems and changes in
circumstances, conditions, needs, desires, trends and technology.
Accordingly, this Article establishes the procedures for modifying and
expanding the initial Rules & Regulations set forth in Exhibit D.
4.2 Rule-Making Authority of Board.
Subject to the limitations and procedural requirements of this Article and
the Board of Directors’ duty to exercise reasonable business judgment and
on behalf of the Association and the Members, the Board may modify, cancel
or delete, limit, create exceptions to, or expand the Rules &
Regulations. The Board shall send notice to all Owners concerning any
proposed action regarding the Rules at least fifteen (15) days prior to
the Board meeting at which such action is to be considered. Members or
Voting Members, as the case may be, shall have a reasonable opportunity to
be heard at the Board meeting prior to such action being taken. A Board
action regarding the Rules shall become effective after compliance with
Section 4.4, unless Members and/or Voting Members, as the case may be,
representing more than fifty percent (50%) of the total Class “A” votes,
and the Class “B” Member, if any, disapprove such action at a meeting.
The Board shall have no obligation to call a meeting of the Members to
consider such action, except upon receipt of a petition of the Voting
Members pursuant to the requirements for special meetings provided in the
Memorandum of Association. Upon receipt of such petition of the Voting
Members prior to the effective date of any Board action under this Section
4.2, the proposed action shall not become effective until after such
meeting is held, and its effectiveness shall be subject to the approval or
disapproval of the Voting Members at such meeting.
4.3 Rule-Making Authority of Members.
Alternatively, at a meeting of the Members duly called for such purpose,
Members and/or Voting Members, as the case may be, who represent more than
fifty percent (50%) of the total Class “A” votes may vote to amend, expand
or otherwise modify the Rules & Regulations then in effect. Such action
shall require approval of the Class “B” Member, if any.
4.4 Notice of Newly-Adopted Rules. Prior
to any action regarding the Rules & Regulations taken under this Article
IV becoming effective, the Board of Directors shall cause a copy of the
new Rule or explanation of any changes to the existing Rules & Regulations
to be (electronically or otherwise) sent or transmitted to every Owner.
The effective date shall not be fewer than fifteen (15) days following
such distribution to the Owners. The Association shall provide, at no
charge, a copy of the Rules then in effect to any Owner or Chargee who
requests it.
4.5 Relationship to Architectural Guidelines.
No action taken under this Article shall have the effect of repealing,
expanding or otherwise modifying the Architectural Guidelines or any
provision of this Declaration or any other Community Documents other than
the initial Rules & Regulations set forth in Exhibit D. In
the event of a conflict between the Guidelines and the Rules, the
Guidelines shall control.
4.6 Owners’ Acknowledgment & Notice to
Purchasers. By accepting a deed or other instrument conveying title
to a Unit, each Owner shall be deemed to have covenanted and agreed that
use of the Units and the Common Area is subject to the Rules &
Regulations, as amended, expanded and otherwise modified from time to
time. Each Owner, by accepting a deed or other instrument conveying title
to a Unit, shall be deemed to have acknowledged and agreed that the use,
enjoyment and marketability of such Owner’s Unit will be affected by this
Declaration and the Rules, which may be amended, expanded or otherwise
modified from time to time.
4.7 Limitations on Rule-Making Authority.
Except as may be set forth in this Declaration, as it may be amended from
time to time, or in the initial Rules & Regulations set forth in
Exhibit D, all Rules shall comply with the following provisions:
(a) Similar Treatment. The Owners who
are similarly situated shall be treated in a similar manner; provided,
however, that the Rules may vary by Neighborhood.
(b) Religious, Holiday & Political Displays.
The Owners shall have the absolute right to display, within their Homes,
religious and holiday signs, symbols, and decorations of the kinds
normally displayed in homes located in single-family residential
neighborhoods, and such right may not be abridged by the Association;
provided, however, that the Association may adopt Rules that reasonably
regulate the time, place, and manner in which signs and symbols are
displayed, or otherwise visible from outside a Home. Likewise, the Owners
shall have the absolute right to display political signs on behalf of
candidates and issues, and the Association may not regulate the content of
such political signs; provided, however, that the Association may adopt
Rules that reasonably regulate the time, place and manner of the posting
of such signs, including, for example, their size and other design
criteria.
(c) Household Composition. The
Association shall adopt no Rule that restricts the freedom of the Owners
to determine who lives in their households; provided, however, that the
Association may require that all occupants be members of a single
house-keeping unit and may limit the total number of occupants permitted
in each Unit on the basis of the physical size of the Home and the
occupants’ fair use of the Common Area.
(d) Activities within Homes. Except as
otherwise provided for herein, the Association shall adopt no Rule that
restricts the activities of the Owners or other occupants carried on
within the Homes; provided, however, that the Association may prohibit
activities not normally associated with property restricted to residential
use, and it may restrict or prohibit any activities that create monetary
costs for the Association or other Owners, that create a danger to the
health, safety or welfare of the occupants of other Units, that generate
excessive noise or traffic, that create unsightly conditions visible from
outside of or adjacent to the Home, or that create an unreasonable source
of annoyance to the occupant(s) of other Unit(s).
(e) Allocation of Burdens & Benefits.
Except as otherwise provided for herein, the Association shall adopt no
Rule that alters the allocation of financial burdens among the various
Units, or the rights to use the Common Area, to the detriment of any Owner
over that Owner’s written objection delivered to the Association. Nothing
in this provision shall prevent the Association from changing the Common
Area available, from adopting Rules for the use of the Common Area
generally applicable to all Owners, or from denying use privileges to any
Owner who is delinquent in paying Assessments, has abused the Common Area,
or has violated the Community Documents. This provision does not affect
the right to increase the amount of Assessments as provided in Article X.
(f) Transfer & Leasing. The
Association shall adopt no Rule that prohibits the lease or transfer of
any Unit, or that requires the consent of the Association or the Board of
Directors for the lease or transfer of any Unit; provided, however, that
the Association or the Board may adopt a Rule that requires any lease of a
Unit to include a term of up to twelve (12) months. The Association may
also adopt a Rule that requires the Owners to use written lease forms
approved by the Association, but shall not impose any fee on the lease or
transfer of any Unit greater than an amount reasonably incurred by the
Association in administering that lease or transfer.
(g) Abridging Existing Rights. The
Association shall adopt no Rule that requires any Owner to dispose of
personal property that was placed within a Unit prior to the adoption of
such Rule, provided such personal property was in compliance with all
Rules previously adopted and in compliance with all district, city and
foreign laws. This exemption shall apply only during the period of such
Owner’s ownership of the Unit, and shall not apply to subsequent Owners
who take title to the Unit after adoption of the Rule.
(h) Reasonable Rights to Develop. The
Association shall adopt no Rule that restricts or interferes with
Declarant’s right to develop the Community.
The
limitations in Paragraphs (a) through (g) of this Section 4.7 shall only
limit rule-making authority exercised pursuant to this Article IV; these
limitations shall not apply to amendments to this Declaration adopted in
accordance with Article XVI.
Article V
Architectural, Building Guidelines & Landscaping Restrictions
5.1 Imposition of Covenants Regarding
Architecture & Landscaping. Declarant, for itself and for its
successors-in-title to all land within the Community, hereby covenants and
agrees that such land shall be subject to the restrictive covenants
regarding the architectural and landscaping elements of the improvements
to be constructed or installed within the Units set forth in this Article
V, and the Architectural Guidelines adopted pursuant hereto, and hereby
declares that the Board of Directors or the Architectural Review Board, as
applicable, is authorized to enforce such covenants and the Guidelines.
Every Owner of land within the Community, by its acceptance of a deed or
other instrument conveying title to such land, shall be deemed to have
covenanted and agreed to comply with such covenants and the Guidelines.
5.2 Compliance with Laws, Etc. No one
may construct or install any architectural or landscaping element that
violates laws, ordinances, codes or regulations of Belize; provided,
however, that the Board of Directors shall have no obligation to enforce
such laws, ordinances, codes or regulations.
5.3 Dumping, Burning or Burying Materials.
No one may engage in outside dumping, accumulation or burning of trash,
leaves, debris, or other materials, except during the normal course of
constructing or installing improvements within a Unit; provided, however,
that Declarant and the approved Builders may dump and bury rocks and trees
removed from a building site on such building site in accordance with
applicable laws, ordinances, codes and regulations governing such
practices.
5.4 Subdivision of Units. No one may
subdivide a Unit into two or more Units, or alter the boundary lines of
any Unit after the Plat creating such Unit has been recorded; provided,
however, that Declarant may, at any time and from time to time, modify the
boundary lines of, subdivide, or replat one or more Units with the prior
written consent of the Owner or Owners thereof.
5.5 Combination of Units. No one may
combine two or more Units without the express written permission of the
ARB and the Class B Member during the Development Period; provided,
however, Declarant may, at any time and from time to time, modify the
boundary lines of, combine, or replat two or more Units with the prior
written consent of the Owner or Owners thereof.
5.6 Mobile Homes. No one may assemble,
place or install a mobile home, modular home, manufactured housing unit,
or similar structure anywhere within the Community; provided, however,
that a mobile construction office may be placed upon each Unit for use
during the construction or installation of the improvements thereon. In
the event that a dispute arises as to what may constitute a “mobile home”
under particular circumstances, the determination of Declarant, the Board
of Directors, or the ARB, as applicable, shall control.
5.7 Conversion of Garages. No one may
convert any garage to finished space for use as an apartment or other
living area without prior approval of the ARB pursuant to Article VI.
5.8 Foul & Obnoxious Odors. No one may
construct or install any architectural or landscaping element within a
Unit from which emanates foul or obnoxious odors, or the existence of
which is in any way noxious, dangerous, unsightly, unpleasant, or of a
nature that may diminish or destroy the enjoyment of the Community.
5.9 Nuisances, Etc. No one may construct
or install any architectural or landscaping element that, in the
reasonable determination of the Board of Directors, tends to cause
embarrassment, discomfort, annoyance, or nuisance to the Owners or
occupants of other Units.
5.10 Fences, Walls, Etc. No one may
construct or install any fence, exterior wall, hedge or similar barrier
without prior written approval of the ARB pursuant to this Article V.
Declarant, the Board of Directors, or the Architectural Review Board, as
applicable, may adopt Architectural Guidelines that further regulate
fences and other barriers, including, but not limited to, prescribing or
prohibiting certain types or styles of fences or other barriers,
restricting the location of such fences or other barriers to certain areas
of a Unit, and providing for exceptions from otherwise required placement
based upon topography, location or other characteristics of a particular
Unit.
5.11 Drainage. No one may obstruct or
re-channel drainage flows after the location and installation of drainage
swales, catch basins, storm sewers, storm drains and similar improvements;
provided, however, that Declarant and the Association shall have such
right provided that the exercise of such right shall not materially
diminish the value of or unreasonably interfere with the use of any Unit
without the consent of the Owner of such affected Unit.
5.12 Exterior Antennas, Etc. No one may
construct or install any satellite dish, antenna or similar structure
within a Unit without first obtaining the ARB’s express written approval
pursuant to Article VI; provided, however, that a Unit Owner may, without
obtaining such approval, construct or install: (i) an antenna or satellite
dish designed to receive direct broadcast satellite services, including
direct-to-home satellite services, that is 1.5 meters or less in diameter
or diagonal measurement; (ii) an antenna designed to receive video
programming services via multi-point distribution services, including, for
example, multi-channel, multi-point distribution services, instructional
television fixed services, and local multi-point distribution services,
that is 1.5 meters or less in diameter or diagonal measurement; or (iii)
an antenna designed to receive television broadcast signals that is 1.5
meters or less in height, diameter or diagonal measurement. Declarant and
the Association shall have the right, but not the obligation, to erect an
aerial, satellite dish, or other apparatus for a master antenna, cable, or
other communication system for the benefit of all or a portion of the
Community in which case Unit Owner’s may not be permitted to install the
items in subparagraphs (i)-(iii) herein.
5.13 Dilapidated Structures, Etc. No one
may retain any structure, fixture, equipment, accessory or other items on
the exterior portions of a Unit that have become rusty, dilapidated, or
otherwise fallen into a state of disrepair. If the Unit Owner fails to
repair, refurbish, demolish or remove such dilapidated structure, as
requested by the Declarant, during the Declarant Control Period, or the
Association thereafter, the Declarant, during the Declarant Control Period
and/or the Association, may demolish and/or remove such structure and
assess the such Unit Owner for the costs thereof plus an administrative
charge equal to fifteen percent (15%) of such demolition and removal
costs. Entrance onto such Units shall not be considered a trespass and
the demolition and removal of such property shall not be considered
conversion or theft.
5.14 Irrigation. No one may install or use
a sprinkler or irrigation system, which draws upon water from the river or
other ground or surface waters within the Community; provided, however,
that Declarant and the Association (and their respective successors and
assigns) shall have the right to draw water from such sources or approve
others to make such use or uses.
5.15 Miscellaneous Exterior Accessories.
No one may construct, install, place or modify any structure, fixture,
equipment or exterior accessory, permanently or temporarily, on any
improved or unimproved exterior portion of a Unit, without first obtaining
written approval of the ARB pursuant to Article VI. This shall include,
without limitation, the construction, installation, placement or
modification of any sign, basketball backboards and hoops, swing sets, or
other sports or play equipment; clotheslines; garbage cans; woodpiles;
in-ground or above-ground swimming pools; decks, patios, terraces or
similar structures; and dog runs or animal houses or pens of any kind. No
Unit Owner whose Unit fronts the river may construct or cause to be
constructed a pier, dock or similar structure unless approved in writing
by the ARB.
5.16 Relationship to Guidelines & Rules.
Declarant, the Board of Directors, or the ARB, as applicable, may adopt
Architectural Guidelines that further regulate the construction,
installation, placement, or modification of any architectural or
landscaping element, including, but not limited to, prescribing permitted
locations and/or architectural screening for such elements, permitting
some while prohibiting other elements, or imposing conditions or
restrictions for such elements. Declarant or the Board of Directors, as
applicable, may adopt Rules & Regulations that further regulate the use of
such elements after their construction, installation or placement.
5.17
Community Systems. “Community Systems” shall mean and refer to any
and all cable television, telecommunication (including, for example,
telephone), data transfer systems, energy systems, alarm/monitoring or
other lines, conduits, wires, amplifiers, towers, antennae equipment,
materials, installations and fixtures (including, for example, those based
on, containing or serving future technological advances not now known)
installed by or at the request of Declarant or pursuant to any grant of
easement or authority by Declarant within the Community and serving more
than one Unit. Declarant shall have the right, but not the obligation, to
convey, transfer, sell or assign all or any portion of the Community
Systems located or to be located, if ever, within the Community, or all or
any portion of the rights, duties, or libations with respect thereto to
the Association or any other Person, including for example, an Owner, as
to any portion of the Community System located on/in his or her Unit). If
and when any of the aforesaid Persons receives such a conveyance, sale,
transfer or assignment, such entity shall automatically be deemed vested
with such rights of Declarant with regard thereto as are assigned by
Declarant in connection therewith; provided, however, that if the
Association is the applicable Person, then any Community Systems or
portions thereof shall be deemed to be Common Areas unless otherwise
provided by the Declarant. Any conveyance, transfer, sale or assignment
made by Declarant pursuant to this Section (i) may be made with or without
consideration; (ii) shall not require the consent or approval of the
Association or any Owner; and (iii) if made to the Association, shall be
deemed to have been automatically accepted (with all rights, duties,
obligations and liabilities with respect thereto being deemed to have been
automatically assumed).
In recognition of the intended increased effectiveness and potentially
decreased installation and maintenance costs and user fees arising from
the connection of all Units in the Community to the applicable Community
Systems, each Owner and occupant of a Unit shall by virtue of the
acceptance of the deed or other right of occupancy thereof, be deemed to
have consented to and ratified any and all agreements to which the
Association is a party, which is based upon (in terms of pricing structure
or otherwise) a requirement that all Parcels be so connected. The
foregoing shall not, however, prohibit the Association from making
exceptions to any such one hundred percent (100%) use requirement in its
reasonable discretion.
Article VI
Architectural Review & Guidelines
6.1 Approval of Improvements Required.
No one may place, construct, or install any structure or other improvement
within a Unit, nor begin the construction or installation of any
improvements or other related work (including staking, clearing,
excavation, grading and other site work, exterior alterations of existing
improvements, or planting or removal of landscaping), within the
Community, except in compliance with this Article VI and the Architectural
Guidelines. No approval shall be required to repaint the exterior of a
structure in accordance with the originally approved color scheme or to
rebuild in accordance with the original plans and specifications, as
previously approved. The Owner of a Unit may remodel, repaint or
redecorate the interior of the Home within such Unit without approval of
the ARB; provided, however, that any modifications to the interior of
screened porches, patios, and similar portions of a Home that are visible
from the exterior shall be subject to approval by the ARB. All Homes and
other permanent improvements constructed or installed within the Community
shall be designed by, and built in accordance with the plans and
specifications of a residential designer or architect, unless Declarant,
or its designee, otherwise approves such plans and specifications in its
sole discretion. This Article shall not apply to the activities of
Declarant, or to the activities of the Association during the Declarant
Control Period.
6.2 Architectural Review by Declarant.
Each Owner, by accepting a deed or other instrument conveying any interest
in a Unit or any other portion of the Community, acknowledges that
Declarant, as the developer of the Community and as an Owner of Units as
well as other land within the immediate vicinity of the Community, has a
substantial interest in ensuring that the Homes and other permanent
improvements constructed or installed within the Community enhance
Declarant’s reputation as a developer and do not impair Declarant’s
ability to market, sell, or lease its Units or its property elsewhere.
Accordingly, each Owner shall be deemed to have covenanted and agreed that
no activity within the scope of this Article VI shall be commenced within
such Owner’s Unit unless and until Declarant, or a Person or Entity
appointed by Declarant, has given its prior written approval for such
activity, which approval may be granted or withheld in Declarant’s or its
designee’s sole discretion. In reviewing and acting upon any request for
approval, Declarant or its designee shall be acting solely in Declarant’s
interest and shall owe no duty to any other Person or Entity. Declarant’s
rights reserved under this Article VI shall continue so long as Declarant
owns any Unit or any other portion of the Community, unless Declarant
earlier terminates such rights in a recorded instrument. Declarant may,
in its sole discretion, appoint one or more Persons or Entities, from time
to time, to act on Declarant’s behalf in reviewing applications pursuant
to this Section 6.2. Declarant may, from time to time, but shall not be
obligated to, delegate all or a portion of its reserved rights under this
Article VI to: (i) an Architectural Review Board appointed by the Board of
Directors; or (ii) a committee comprised of architects, engineers or other
Persons, who may or may not be Members. Any such delegation shall be in
writing, shall specify the scope of responsibilities delegated, and shall
be subject to: (i) Declarant’s right to revoke such delegation at any time
and re-assume jurisdiction over the matters previously delegated; and (ii)
Declarant’s right to veto any decision which Declarant determines, in its
sole discretion, to be inappropriate or inadvisable for any reason. So
long as Declarant has any rights under this Article VI, the jurisdiction
of the Architectural Review Board or the Board shall be limited to such
matters as Declarant specifically delegates to them. For purposes of this
Article VI, the entity having jurisdiction in a particular case shall be
referred to as the “Reviewer.”
6.3 Review by Architectural Review Board.
Upon delegation by Declarant or upon expiration or termination of
Declarant’s rights under this Article VI, the Association, acting through
the Architectural Review Board, shall assume jurisdiction over
architectural review matters. The members of the ARB, when appointed by
the Board of Directors, shall consist of at least three (3), but not more
than seven (7) Persons who shall serve and may be removed and replaced at
the pleasure of the Board in its sole discretion. The members of the ARB
need not be Members or representatives of Members, and may, but need not,
include architects, engineers or similar design professionals, who may be
compensated in such manner and amount, if any, as the Board may
determine. The Board of Directors shall include the compensation, if any,
of such design professionals in the Common Expenses stated in the
Association’s annual budget. Unless and until such time as Declarant
delegates all or a portion of its reserved rights to the Association, or
Declarant’s rights under this Article VI terminate or expire, the
Association shall have no jurisdiction over architectural review matters
notwithstanding any other provision in this Declaration to the contrary.
6.4 Architectural Review Fees. The
Reviewer may establish, by a duly adopted rule of general application, and
charge reasonable fees for the review of applications, and may require
such fees to be paid in full before the review of any application. Such
fees may include the reasonable costs incurred in having any application
reviewed by architects, engineers or other professionals. Declarant and
the Association may employ architects, engineers, or other design
professionals as deemed necessary to perform the review.
6.5 Architectural Guidelines. Declarant
has promulgated the initial Architectural Guidelines, which are located
herein. Said Guidelines may contain general provisions applicable to all
of the Community, as well as specific provisions, which vary from
Neighborhood to Neighborhood. The Guidelines are intended to provide
guidance to the Owners and the approved Builders regarding matters of
particular concern to the Reviewer in considering applications. The
Guidelines are not the exclusive basis for decisions of the Reviewer, and
compliance with the Guidelines does not guarantee approval of any
application. Declarant shall have sole and full authority to amend the
Guidelines as long as it owns any portion of the Community,
notwithstanding a delegation of reviewing authority to the ARB, unless
Declarant also delegates the power to amend the Guidelines to the ARB.
Upon termination or delegation of Declarant’s right to amend the
Guidelines, the ARB shall have the authority to amend the Guidelines with
the prior written consent of the Board of Directors. Any amendments to
the Guidelines shall apply prospectively only, and shall not be applied
retroactively to require modifications to or removal of improvements
previously approved after the approved construction or modification has
commenced. There shall be no limitation on the scope of amendments to the
Guidelines, and such amendments may remove requirements previously imposed
or otherwise make the Guidelines less restrictive. The Reviewer shall
make the Guidelines available to the Owners and the Builders who seek to
engage in development or construction within the Community. Each Unit
Owner agrees to obtain the then current copy of the Guidelines prior to
authorizing any architect, engineer, or other design professional to
commence any such work with respect to the Unit or a Home thereon.
6.6 Architectural Review Procedures.
Except as otherwise specifically provided in the Guidelines, no
construction, installation or modification of improvements shall commence
anywhere within the Community until an application for review has been
submitted to and approved by the Reviewer. Such application shall include
plans and specifications showing site layout, structural design, exterior
elevations, exterior materials and colors, landscaping, drainage, exterior
lighting, irrigation, and other features of the proposed improvements, as
applicable. The Guidelines and the Reviewer may require the submission of
such additional information as may be reasonably necessary to consider any
application. In reviewing each application, the Reviewer may consider any
factors it deems relevant, including, without limitation, the harmony of
the external design with the surrounding structures and environment. The
Reviewer may base its decisions on purely aesthetic considerations.
Determinations as to such matters may be purely subjective, and opinions
may vary as to the desirability or attractiveness of particular
improvements. The Reviewer shall have the sole discretion to make final,
conclusive and binding determinations on matters of aesthetic judgment,
and such determinations shall not be subject to review so long as they are
made in good faith and in accordance with the procedures set forth herein.
6.7 Time & Notice of Decisions. Except
as otherwise provided below, the Reviewer shall make a decision regarding
each application within thirty (30) days after receipt of a completed
application and all required information. The Reviewer may: (a) approve
the application, with or without conditions; (b) approve a portion of the
application and disapprove other portions; or (c) disapprove the
application in its entirety. Until termination or expiration of
Declarant’s rights under this Article VI, the Reviewer shall notify
Declarant in writing within seven (7) days after the Reviewer has approved
any application or portion thereof within the scope of matters delegated
to the ARB by Declarant. A copy of the application and any additional
information that Declarant may require shall accompany the notice.
Declarant shall have fifteen (15) days after receipt of such notice along
with the complete application to veto any such action or portion thereof,
in its sole discretion, by written notice to the Reviewer. The Reviewer
shall notify the applicant in writing or electronically of the final
determination on any application within seven (7) days thereafter or, with
respect to any determination by the Reviewer, subject to Declarant’s veto
right, within seven (7) days after the earlier of: (x) receipt of notice
of Declarant’s veto or waiver thereof; or (y) expiration of the
fifteen-day period for the exercise of Declarant’s veto. In the case of
disapproval, the Reviewer may, but shall not be obligated to, specify the
reasons for any objections or offer suggestions for curing any
objections. In the event that the Reviewer fails to respond in a timely
manner, approval shall be deemed to have been given, subject to
Declarant’s right to veto any approval pursuant to this Section 6.7.
However, no approval, whether expressly granted or deemed granted, shall
be inconsistent with the Guidelines unless a written variance has been
granted pursuant to Section 6.10. The Reviewer shall provide notices of
its decisions in accordance with Section 20.14.
6.8 Construction to be Diligently Pursued.
If an Owner or Builder does not commence construction, installation or
modification of improvements within one (1) year after the date of
approval, such approval shall be deemed withdrawn, and the Owner or
Builder shall re-apply for approval before commencing any construction,
installation or modification of improvements upon any Unit or Home. Once
an Owner or Builder has commenced construction, installation or
modification of improvements on a Unit, such Owner or Builder shall
diligently pursue the project to completion. The Owner or Builder shall
complete all work within one (1) year from the date of commencement,
unless otherwise specified in the notice of approval, or unless the
Reviewer grants an extension in writing or electronically, which the
Reviewer may do in its sole discretion. If the Owner or Builder does not
complete the project within the required time, the incomplete work shall
be deemed to be non-conforming and shall be subject to enforcement action
by Declarant, the Association or any aggrieved Owner.
6.9 No Waiver of Future Approvals. The
Persons reviewing applications under this Article will change from time to
time, and opinions regarding aesthetic matters, as well as the
interpretation and application of the Architectural Guidelines, may vary
accordingly. In addition, the Reviewer may not always be able to identify
objectionable features until the construction of a Home is substantially
completed, in which case it may be unreasonable to require changes to the
improvements involved, but the Reviewer may refuse to approve similar
proposals in the future. Approval of applications or plans, or in
connection with any other matter requiring approval, shall not be deemed
to constitute a waiver of the right to withhold approval as to any similar
applications, plans, or other matters subsequently or additionally
submitted for approval.
6.10 Variances. The Reviewer may, from
time to time, authorize variances from compliance with any of the
Architectural Guidelines when circumstances such as topography, natural
obstructions, hardship, or aesthetic or environmental considerations
require, but only in accordance with duly adopted policies of general
application. No variance shall: (a) be effective unless in writing; (b)
be contrary to this Declaration; or (c) preclude the Reviewer from denying
a variance in other circumstances. For purposes of this Section 6.10, the
Owner or Builder’s inability to obtain the approval of any governmental
agency or the issuance of any permit, or the terms of any financing shall
not be considered a hardship warranting a variance. If the Reviewer
grants a variance with regard to a particular Unit, the Owner of the Unit
shall be required to obtain all necessary approvals, and, if required, all
necessary variances, of any governmental authority having jurisdiction
over the Community, before commencing the construction, installation or
modification of the improvements within the Unit.
6.11 No Liability for Approved Plans. The
standards and procedures established by this Article VI, and the
Architectural Guidelines promulgated pursuant hereto are intended to
maintain and enhance the overall aesthetics of the Community; they do not
create any duty to any Person or Entity. Review and approval of any
application pursuant to this Article VI may be made solely on the basis of
aesthetic considerations, and the Reviewer shall not bear any
responsibility or liability for ensuring the structural integrity or
soundness of approved construction, installation or modification of
improvements, nor for ensuring compliance with building codes and other
governmental requirements, nor for ensuring that all Homes are of
comparable quality, value or size, of similar design, or aesthetically
pleasing or otherwise acceptable to other Owners. Declarant, the
Association, the Board of Directors, the Architectural Review Board, or
any member of any of the foregoing shall not be held liable for soil
conditions, drainage or other general site work; any defects in plans
revised or approved hereunder; any loss or damage arising out of the
action, inaction, integrity, financial condition or quality of work of any
(approved) contractor or its subcontractors, employees or agents, whether
or not Declarant has approved or featured such contractor as a Builder in
the Community; or any injury, damages, or loss arising out of the manner
or quality or other circumstances of approved construction within or
modifications to any Unit. In all matters, the members of the Board and
the ARB shall be indemnified and held harmless by the Association as
provided in Section 6.29.
6.12 Certificate of Architectural Compliance.
Any Owner or Builder may request that the Association issue a certificate
of architectural compliance certifying that there are no known violations
of this Declaration, the Architectural Guidelines and the Rules &
Regulations regarding such Owner’s or Builder’s Unit. The Association
shall either grant or deny such request within fifteen (15) days after
receipt of a written request for same, and may charge a reasonable
administrative fee therefor, as established in a Resolution of general
application duly adopted by the Board of Directors, for issuing such
certificates. Issuance of such a certificate shall preclude the
Association from taking enforcement action with respect to any condition
as to which the Association had actual knowledge or notice as of the date
of such certificate.
6.13 Establishment of the Architectural Review Board (“ARB”)
(a) Membership. In order to
administer and supervise the enforcement of all the Guidelines set forth
herein below and in order to provide a systematic and uniform review of
all proposed construction and modifications to existing structures of any
type and nature in the Community, the Board of Directors shall have
promulgated and enacted the Guidelines herein set forth and do hereby
establish the ARB. Each member of the ARB shall be a voting member.
(b) ARB’s Authority.
Notwithstanding the issuance of an approval by the Association or the ARB,
the Association or the ARB shall have the authority to halt any
construction process in the Community that violates this Declaration or
these Guidelines, as they both may be amended from time to time. The ARB,
with the Declarant’s approval, may promulgate and distribute
construction‑related rules and regulations and determine and review
policies, procedures and criteria.
6.14 Definitions for ARB Procedures
(a) “Applicant” means the
Person or Entity making the submittal to the ARB; either the Unit Owner or
said Owner’s agent.
(b) “Category of Review”
means one of the five organized areas of review criteria, which the
Association hereby delegates to the ARB are as follows: (i) Site Plan,
(ii) Survey, (iii) Floor Plan and Elevations, (iv) Exterior Materials and
Colors, (v) Landscape. All items submitted must to the ARB must be
organized accordingly and show compliance with all review criteria for the
Category submitted, as detailed in the Section herein entitled "Review
Criteria" in order to receive final approval.
(c) “Final Approval” means
a decision by the ARB that the item(s) reviewed have met all criteria,
standards and requirements for that Category of Review and the Declarant
has not vetoed said approval. Once the ARB issues a Final Approval for
both the Site Plan and Floor Plan and Elevations Categories and the
Declarant veto period expires, the Applicant shall be authorized to
proceed with the commencement of construction. However, no site work or
other construction activity shall be permitted for any Category of Review
until and unless the Applicant receives each of the following: (i) plans
stamped Final Approval by the ARB; (ii) ARB’s decision letter; and (iii) a
building permit from the authorized Belize building and housing authority.
(d) “Conditional Approval”
means a decision by the ARB that the item(s) reviewed meet(s) all criteria
with the exception of a few minor notations. The ARB has determined, in
its sole discretion, that the item(s) may be revised and resubmitted to
the ARB. No site work or construction activity may commence on a Unit or
modification to a Home or other improvement or structure until such time
as the Applicant receives plans with an ARB Final Approval stamp thereon
along with the decision letter from both the ARB and the authorized
official from the authorized Belize building and housing authority.
Failure to obtain and/or receive Final Approval within the time period
allotted will result in an official decision of denial and the Applicant
must initiate the process from the beginning.
(e) “Denial” means a
decision by the ARB and/or the Declarant that the item(s) reviewed are in
conflict with ARB criteria standards or insufficient in detailing the
appropriate ARB criteria. Resubmission of revised item(s) will require
the Applicant to pay the ARB a resubmission fee in the amount prescribed
the ARB, which may be changed at any time and from time to time without
notice.
(f) “DOE” means the
Government of Belize, Department of the Environment.
(g) “Table” means a
decision by the ARB wherein the item(s) reviewed by the ARB are not in
conflict with the criteria; however, additional information must be
received either by the ARB or Applicant in addition to that otherwise
required by the ARB, due to unusual or exceptional circumstances.
(h) “Decision Letter”
means the letter from the ARB that details the ARB’s decision regarding
any items reviewed by the ARB.
(i) “Height” means that
distance between the ground and the highest point of the roof.
(j) “Lowest Finished First
Floor Elevation” means that elevation of the lowest, habitable
finished floor line.
(k) “Hardship” means any
unusual and extraordinary circumstances beyond the control of the
Applicant that causes a problem with either the construction or use of a
Home, as determined in the sole and absolute discretion of the ARB. No
Hardship variance shall modify or amend any provisions of this
Declaration.
(l) “Privacy Wall” means
a wall, of which the purpose is to provide privacy into a specific Unit or
Home.
(m) “Accessory Structure”
means any man‑made item or element including, but not limited to:
sculptures, statuary, decorative art objects, urns, rock gardens, etc.
(n) “Ground Preparation”
means and includes demolition, starting site preparation, removal or
alteration of landscaping, beginning alterations to or demolition of
existing Homes or Accessory Structures, new Home construction, or
commencing any work on a Unit prior to ARB approval therefor.
6.15 ARB Meetings. Meetings. ARB meetings
are held monthly, unless otherwise designated herein or by the ARB. The
ARB Chairperson, as appointed by the Declarant, chairs such meetings. A
majority of voting ARB members constitutes a quorum for any ARB meeting.
Decisions are based on a majority vote of those voting members present at
the meeting or voting by proxy. An ARB member may designate a proxy to
act as a temporary member in his/her place; provided that, the Declarant
approves such designee in advance of the meeting.
6.16 Construction Restrictions. No construction,
demolition or alteration to a Unit, Home or Accessory Structure or other
improvement on a Unit may be started in any manner or respect, including,
for example, ground preparation, until the Applicant has received plans
stamped Final Approval by the ARB for both the Site Plan and Floor Plan
and Elevations Categories. Said Approvals must be from the applicable
governmental housing and building authority as well as the ARB. No other
category of work may be commenced without Final Approval being received by
the Applicant, except for surveying and staking. "Construction" includes
demolition of an existing Home or improvement and Ground Preparation, as
defined herein, and also includes the alteration or renovation of an
existing Home where fifty percent (50%) or more of the floor area of the
existing Home or improvement is to be altered, renovated or added.
Reasonable extensions of time may be granted by the ARB for good cause and
the Applicant will be required to submit a payment of additional fees for
such an extension, as provided in these Guidelines. If the Unit Owner
fails to comply with the ARB’s instructions relative to commencement and
completion of construction, the ARB shall, in its discretion, impose fines
against such Unit Owner(s) as provided herein.
6.17 Limitation of Liability. The standards and
procedures established pursuant to this Article are intended to provide a
mechanism for maintaining and enhancing the overall aesthetics of the
Community only, and shall not create any duty to any Person or Entity.
Review and approval of any Application pursuant to this Article is made on
the basis of aesthetic considerations only and neither the Declarant, the
Association, nor the ARB or any member thereof shall bear any
responsibility for ensuring the structural integrity or soundness of
approved construction or modifications, the adequacy of soils or drainage,
nor for ensuring compliance with building codes and other governmental
requirements nor for ensuring that all Homes are of comparable quality,
value or size, of similar design, or aesthetically pleasing or otherwise
acceptable to neighboring Unit Owners, or for the performance and work
quality or materials and supplies used by any contractor, subcontractor,
or materialmen or supplies. Neither the Declarant, the Association, the
Board, or the ARB or any committee, or member of any of the foregoing
shall be held liable for any injury, damages, or loss arising out of the
manner or quality of approved construction on or modifications to any
Unit, Home and/or Accessory Structure. In all matters, the committees and
their members shall be defended and indemnified by the Association as
provided herein.
6.18 Easement Releases. Review/approval does not
relieve Applicants of the responsibility to obtain required releases for
any construction in easements prior to commencement of construction.
6.19 Plan Preparation. All plans must be professionally
prepared, either by a residential designer or architect. All plans must
be in compliance with all appropriate government agencies’ guidelines.
6.20 Unit Use. Subject to the use restrictions contained
herein, the Units designed on the Master Plan as residential parcels may
only be used for residential or private recreational uses,
multi-residential structures having Strata titles, resorts, lodges, hotels
and bed and breakfasts. Parcels designated on the Master Plan as
commercial parcels may be used for residential and commercial purposes and
multi-residential structures having Strata titles.
6.21 Review. The ARB may withhold approval, or refrain
from taking any action of any items for a Unit if there are existing ARB
violations associated with the Unit, or any other Unit(s) owned by the
Applicant, or if any other items requested by the ARB pertaining to the
Unit, or other Unit(s) owned by the Applicant, have not been submitted to
and received by the ARB, as requested.
6.22 Fines. If the ARB notifies a Unit Owner of a
violation of any provision of these Guidelines or this Declaration, and
such violation is not corrected within thirty (30) days after delivery of
notice in accordance with Section 20.14, then the ARB may impose a fine
against the Unit and the Unit Owner in an amount up to a maximum of Five
Hundred U.S. Dollars (US$500.00), and said fine may be re‑imposed every
additional sixty (60) days, or part thereof, that said violation remains
uncorrected. The ARB shall notify the Association of such fines, and the
Board shall have the authority to levy a Specific Assessment against such
Unit for such fines, including, without limitation, the filing and
foreclosing of a lien against the Unit.
6.23 Procedure for Submission of an
Application.
(a) Submission Package.
The Submission Package should include a cover letter from the Applicant,
any appropriate fee and the item(s) for review. All packages are to be
submitted in triplicate form. Drawings must be submitted in English and
the unit of measurement must be in feet and inches, not meters and
centimeters. Minimum scale requested for drawings is 3/16” = 1’. There
are three (3) Categories of Review:
(i) Survey;
(ii) Site Plan. The Site Plan
must show the position of the improvement or structure or Home on the
Homesite with roof dimensions, setbacks and material specifications. The
Site Plan must also show the North position.
(iii) Architectural Plans –
including:
(A) Floor Plan. The Floor
Plans must depict the interior dimensions (net area for each room) and
exterior dimensions of each Home, Accessory Structure and improvement.
The Floor Plans of commercial buildings must show the location and
description of the commercial space and Home, if applicable. The Floor
Plans must also contain a chart, which illustrates or depicts:
(1) Gross area of Home, Accessory
Structure and/or improvements building (based on outside dimensions).
(2) Sum of the veranda, stair and
platform areas (and all other areas not considered part of the living or
commercial area).
(3) Sum of items above in
subsections 6.23(a)(iii)(A)(1) and 6.23(a)(iii)(A)(2) considered total
building area.
(B) Sections. At least
one section of the Home, Accessory Structure or improvement must
illustrate the highest point of such Home, Accessory Structure and/or
improvement with the dimensions from the ground to top of the roof and
material specifications.
(C) Elevations. You must
submit front and side elevations.
(D) Floor Framing System.
(E) Roof Framing System.
(F) Electrical Plan.
(G) Plumbing Plan.
(H) Exterior Colors and
Materials.
The Submission Package for Final Approval must include the
final drawings as intended to be submitted to the Government of Belize.
Each Submission Package must include a Review Application and be complete,
(i.e. all criteria pertinent to that Category of Review must be included
or otherwise referenced, in order to receive Final Approval). The
criteria are detailed further in these Guidelines in the chapter on
"Review Criteria." All categories of review should be submitted
simultaneously.
(b) Review Fees. There is
a One Hundred U.S. Dollar (US$100.00) review fee that is required to be
submitted to the ARB along with your submittal, which includes Preliminary
and Final Review for all review category submissions. The Fee for
revising a previously approved plan is also One Hundred U.S. Dollars
(US$100.00). There is an additional One Hundred U.S. Dollar (US$100.00)
fee charged to the Applicant for the ARB to review any submission package
that has been previously denied, in whole or in part, by the ARB.
(c) Deadline. The ARB
must receive the Applicant’s submission package by no later than the first
day of each month at 11:00 a.m. The Applicant may consider contacting the
ARB for the times and dates for planned ARB meetings.
(d) Plan Review. The ARB
shall review all submission packages, if completely submitted, within
thirty (30) days of the ARB’s receipt unless otherwise requested by the
Applicant or as otherwise specified by the ARB. The ARB’s response to
submission packages may be mailed or electronically transmitted, upon
request. The ARB’s response consists of one (1) set of appropriately
stamped items and the ARB decision letter. Applicants are encouraged to
submit items to the ARB in a conceptual or preliminary state when there
are questionable review items, as such submissions could avoid costly
resubmission fees and/or delays in the review process. There is no review
fee to review conceptual aesthetic design drawings; however, the Declarant
reserves the right to charge such a fee and to change such fee, if
imposed, at any time and from time to time. The ARB shall not be
obligated to review any submission until and unless the required fee paid
in good funds subject to no contingencies are received by the ARB. Any
submission to the ARB without such fees shall be deemed to be incomplete
and not subject to the ARB’s review.
(e) Revised Plans.
Applicants must submit to the ARB any and all revisions to any Final
Approval item(s) in accordance with and subject to the above‑described
procedures. Revision fee due on submission of revisions is specified
herein.
(f) Withdrawal. In the
event a submission is deemed incomplete by the ARB in its discretion, the
Applicant may withdraw the submission and, upon request, the ARB will
refund any review fee received by the ARB.
(g) Appeal. In the event
the Applicant desires to appeal the partial or complete Denial of an ARB
decision, Applicant may request a re‑review of the submitted plans. The
ARB will re-consider its decision within thirty (30) days after the next
monthly meeting. If the issue being appealed by the Applicant is an issue
of environmental significance, the ARB may refer such issue to the DOE and
the DOE’s decision shall be final and binding upon the Applicant and the
ARB. All costs incurred by the ARB in referring the matter to the DOE and
all costs and fees incurred by the Applicant relative to appearing before
the DOE shall be borne exclusively by Applicant.
(h) Remedies. In the
event an Applicant improperly commences construction or site improvements
for any Category of Review or for any other matter for which Final
Approval has not been granted by the ARB, the ARB may, but shall not be
obligated to, seek any and all remedies at law, equity or otherwise.
(i) Completion of
Construction; Certification; Survey; & Inspection. The Home,
Accessory Structure or improvement shall not be used or occupied by anyone
until such time, if ever, as the ARB receives a notice of completion from
the Unit Owner or his or her agent certifying that all construction and
improvements on a Unit have been built substantially in accordance with
the ARB approved plans and specifications.
6.24 Review Criteria
(a) Utilities
(1) Energy Plan
(i) Belize Electric Limited may
be the primary source of energy in the Community.
(ii) Solar power and/or wind
power may be the primary source or supplementary source of energy for the
Community. Low decibel generators having sound attenuating may be used
for emergency backup power.
(iii) The use of a gauge is
encouraged to monitor available energy in the battery and to indicate when
batteries are full.
(iv) The use of a voltmeter is
encouraged to allow Unit Owners to adjust solar panels to the optimum
angle to the sun.
(v) The use of an occupancy
sensor is encouraged to minimize the use of energy when the Unit is not
occupied.
(vi) For ventilation and cooling,
passive and neutral techniques should be used.
(b) Wells, Water Supply and
Collection. Units may have wells installed, as permitted by the ARB
unless Declarant or its designee constructs a central water system, which
it may, but shall not be obligated to do, or use cisterns, bladders or
water catchment and holding systems, which store rainwater collected.
(c) Waste
(1) Toilets. Toilets must be
low-consumption, low-volume or low-flush water efficient toilets used in
conjunction with septic tanks or cesspools. Unit Owners may also install
composting toilets within a Home, if they so desire; provided that, such
toilets are approved by the ARB.
(2) Gray water (showers, sinks,
etc.). Gray water holding tanks may be used in conjunction with drip
irrigation systems for the fertilization of local planting.
(d) Lighting fixtures
(1) Home lighting may be low or
high voltage.
(2) Lighting shall be low
intensity and directed downward or reflected with cut off angles so as to
not be directly visible.
(e) Approval. All utility
plans must be submitted to ARB for approval. (It is recommended that all
consumable goods or products, including but not limited to bathing
products, cleaning solutions, cleaning products, cleaning supplies,
household paper products and sunscreen must be biodegradable.)
6.25 Survey. The ARB reserves the right to request a
survey of any questionable item during construction of the Home.
6.26 Site Plan.
(a) Setbacks. All
setbacks shall be subject to and comply with the covenants, conditions,
restrictions and Guidelines contained herein, and shall be measured from
the appropriate property line. Dimensions from the property line for any
structural elements (e.g. structures, screened enclosures, porches, walls,
equipment, accessory structure, garage, etc.) must be shown. The ARB may
modify, amend or waive setback requirements in accordance with this
document.
(1) Minimum front yard, rear yard
and side yard setback for dwellings, patios, porches, decks, garages,
buildings and screened enclosures is ten (10) feet.
(2) Minimum side yard setback for
equipment, trash containers and other similar utilitarian devices is ten
(10) feet. Such items must be landscaped from view.
(3) No equipment is permitted in
front-, side- or rear-yard building setback areas.
(4) Minimum setback for
non‑privacy walls and landscape walls, as described herein, is twenty (20)
feet from the front-, side-, rear-property lines unless otherwise approved
by the ARB. The ARB may change these minimums as deemed suitable.
(b) Grade Elevations. The
site plan must show the minimum lowest, finished floor elevation.
(c) Residential and Commercial
Graphics. All signage must be included in the submission package and
approved by the ARB.
(d) Fences and Walls.
(1) The design, materials and
height of any wall and/or fence must be shown, either on the site plan or
by separate drawing.
(2) Privacy walls and fences must
not exceed eight (8) feet in height, except for a privacy wall around a
cistern, which may not exceed fifteen (15) feet.
(3) No wall or fence may obstruct
the drainage or the flow of water.
(4) Any combination of
landscaping and fence or wall elements must be approved by the ARB to
create an effect similar to a wall or fence. The appropriate ARB
provisions for wall and fences will apply in such instance.
(e) Accessory Dwellings and
Structures.
(1) Any Accessory Structure must
be detailed on the site plan and specifically approved by the ARB.
(2) Aerials, antennae and
satellite dishes may be installed on a Unit or Home, as approved by ARB;
however, the Declarant reserves the right to install a community wide
system and in such event all telecommunications shall be run through such
system.
(3) No Accessory Structures of
any kind are permitted in the Community unless approved by the ARB
(f) Swimming Pools, Hot Tubs,
Whirlpools, Etc.
(1) Swimming pools, hot tubs,
whirlpools, etc. are permitted in the Community, as approved by the ARB.
(g) Recreational Items.
Recreational courts such as basketball, tennis, volleyball, etc. are
permitted within a Unit, as approved by the ARB.
(h) Garbage and Trash
Containers; Sanitary Structures
(1) During the construction
period of a Home or improvement, a construction container, or other
approved containers are required on the site within the Unit. Such
containers or temporary toilets are to be located so as to provide minimum
visual off‑site exposure. Construction debris is to be removed from the
Community frequently to avoid offense or nuisance to neighbors and must be
disposed of at an appropriate disposal site at Owner’s or Owner’s agent’s
sole cost and expense.
(2) A wall, fence or adequate
landscaping must conceal garbage containers and/or compost bins on
residential parcels.
(i) Utilities. All power
transformers and other utility service equipment are to be shielded by
enclosures of wood, masonry or landscaping, all as approved by the ARB.
6.27 Architectural Plans.
(a) Building Size.
(1) Residential
Parcels. Construction of an improvement, including, for
example, a structure, porches, decks and associated structures may not
have a footprint that exceeds twenty-five percent (25%) of the gross
parcel square footage (e.g. parcel size is 100' X 440' = 44,000 square
feet structure, porch, deck and associated structures may not exceed
11,000 square feet). Square footage measurements shall include the
exterior walls. Recreational courts such as tennis, basketball and volley
courts shall not be included in such calculations.
(2) Commercial Parcels.
Construction of an improvement, including, for example, structures,
porches, decks and associated structures may not exceed fifty percent
(50%) of the gross parcel square footage (e.g. parcel size is 100' X 440'
= 44,000 square feet structure, porch, deck and associated structures may
not exceed 22,000 square feet). Square footage measurements shall include
the exterior walls. Recreational courts such as tennis, basketball and
volley courts shall not be included in such calculations.
(3) Owners of multiple Units,
each contiguous, may construct a Home using the same calculation as above;
however, multiple parcel square footage may be combined in the calculation
of a single Home’s total square footage.
(4) There may be multi-story
Homes constructed within the Community, but such Homes must conform to the
height restrictions listed herein.
(5) Floor Plan drawings must use
a minimum scale of 3/16" = 1'.
(b) Elevations
(1) The height of any Home,
Accessory Structure, improvement or commercial improvement is not to be
more than forty (40) feet above the ground. The appropriate variables for
calculating height have been specified in these Guidelines.
(2) Elevation drawings must use a
minimum scale of 3/16" = 1'.
(c) Roofs. Roofs may be
designed to catch rainwater with drainage to a cistern or bladder. Roofs
are to be constructed with overhangs to protect Homes or commercial
structures from mid‑day sun.
(1) Applicants may install
rooftop solar collectors, as approved by the ARB; engineering drawings,
including reference to ventilators may be used, if the roof vents are low
profile, blending into the roof materials.
(2) Plumbing and heating vents
protruding from any roof area are to be painted so as to blend into the
roofing color. Electrically powered ventilators may be used if the roof
vents are low profile, blending into the roofing materials.
(3) Roof plan must use a minimum
scale of 3/16" = 1'.
(d) Garages, Carports,
Automobiles and Golf Carts. Garages and carports are permitted.
(e) Exterior Colors, Materials
and Screening.
(1) Exterior Colors.
(i) All colors are to be
approved by the ARB. The ARB reserves the right to review any other item
that may affect the exterior appearance of a Home, Accessory Structure or
any other improvement.
(ii) The ARB will consider the
aesthetic harmony of the color schedule with the surrounding area.
(2) Exterior Materials.
(i) Imitation materials for
facades are acceptable as long as they are architecturally integrated with
Home design.
(ii) Native materials (i.e. trees
native to Belize) are encouraged.
(3) Screen Enclosures.
(i) Screen enclosures must be of
a color that harmonizes with the natural scheme or flora.
(ii) All screen roofs must be of
a hip, gable or mansard type.
(iii) Plans submitted for screen
enclosures must include the following:
(A) A complete site plan showing
the screen enclosure.
(B) A complete roof plan of the
dwelling showing the screen enclosure with the configuration of the screen
enclosure frame members in plan.
(C) All affected exterior
elevations of the entire dwelling showing all the frame members of the
screen enclosure in place.
(f) Landscaping.
(1) Tree and Shrub Trimming and
Removal. No trees will be cut or removed from a Unit in excess of the
amount necessary to clear the Unit for construction of a residential or
commercial structure without ARB approval.
(2) Landscape Materials. Final
Approval of all landscape material will be subject to the ARB’s inspection
of the plantings during the six (6) month period following the completion
of the landscape installation.
(g) Exterior Lighting.
Outdoor lighting must be located so that it does not interfere with or
become a nuisance to other residents or wildlife. The light source of any
exterior light must be shielded from public view. The ARB reserves the
right to enforce lighting provisions from aesthetics and an environmental
standpoint after the construction of a Home is completed.
6.28. ARB Agreements. Owners, builders and contractors
jointly and individually assume responsibility for observance and
compliance with all applicable rules, regulations, requirements and
agreements herein contained.
(a) Accessory Structures (Other
than Homes - As approved by the ARB). Accessory Structures must be located
within the Unit’s property lines and setbacks. Accessory Structures must
not be located, constructed, painted or used in such manner so as to
create any off‑site visual, audible or aesthetic nuisance or disturbance.
The ARB shall consider height (including base or foundation structure),
size, number of objects in adjacent area, color, design, lighting (if
any), material, subject and possible interference with rights of other
Owners to quiet enjoyment of their rights and properties. Accessory
Structures must not create a safety hazard to Owners or occupants or
off‑site persons (e.g. neighbors). Landscaping screening or restrictions
on hours or manner of use, may be considered in reviewing proposed
installation of the Accessory Structures.
(b) Maintenance; Exterior
Colors. Repainting of any Home, Accessory Structure or any other
improvement must be in the color originally approved by the ARB without
application to the ARB. Subject to review of neighboring parcels and
other residences within the Community, variations and variances shall be
considered or permitted if in keeping with overall requirements of
aesthetics for type of structure, location, community appearance,
maintenance and resale values. Maintenance is the responsibility of the
Parcel Owner. All dwellings, accessory and related structures shall be
cleaned and maintained as in original or subsequently approved condition
so as to maintain the harmony and aesthetic appearance of the community.
Fines for non‑observance shall be imposed at the sole discretion of the
ARB.
(c) Satellite Dishes. The ARB
will regulate and must approve all exterior parts of a Digital Satellite
System, including, for example, satellite dish, base, mounting board,
mounting brackets, wiring and all accessory and related equipment.
(1) Satellite dishes on
Residential parcels may not exceed 1.5 meters in diameter.
(2) Satellite dishes must be
screened from off‑site view by wall, fence, shrubs, trees or other
appropriate landscaping. Any such screening is to be maintained.
(3) Each application for
installation is to be reviewed, at the discretion of the ARB, on an
individual basis, considering site, color, manner of installation,
location of installation, possible visual or other nuisance, aesthetics,
size and other factors.
(4) The use of a satellite dish
must comply with Belize law.
(d) Solar Collectors and Panels.
Application to include scaled roof plan showing design and location of
solar panels, all elevations reflecting accessory equipment and supply and
return pipes. Solar panels of any type are not to be visible from the
front of the dwelling. Otherwise, permitted only on roofs with an
orientation to the south or with 45 degrees east or west of due south at
locations. The ARB will consider the appearance and aesthetic harmony of
the installation but shall not have responsibility for its materials,
structural integrity, safety, suitability for intended use or manner of
installation.
(e) New Construction, Alteration,
Renovation, Demolition and Ground Preparation of Dwellings and Parcels
(herein defined as "construction").
(1) Adjoining parcels shall be
kept free of all construction material and refuse at all times during
construction.
(2) Sanitary structures (e.g.
portable toilets) and refuse containers are limited to two of each located
on the construction site. Both portable toilets and containers must be
screened to provide minimum off‑site view or exposure.
(3) Building materials, refuse or
construction equipment shall not be discarded on or in any way permitted
to remain on neighboring properties.
(4) Damage to adjoining
properties is the responsibility of Parcel Owner and builder/contractor.
(5) In addition to penalties and
liabilities provided by DOE, the ARB may halt the construction process on
a site until the violation is corrected.
(f) Fire Extinguishers. All
Homes, Accessory Structures and commercial buildings must have a minimum
of one fire extinguisher per each 1,000 square feet of dwelling.
6.29 ARB Indemnification. Every Officer and Director of
the Declarant, the Declarant, the Association, each ARB member, and each
of their respective agents and employees (the “Indemnified Parties”) shall
be defended and are hereby indemnified, released and held harmless by the
Owners from and against any and all claims, damages, judgments,
liabilities, expenses, and fees including, for example, counsel fees and
disbursements, reasonably incurred by or imposed upon such Indemnified
Parties in connection with any judicial, quasi-judicial or any other
proceeding to which such parties may be a party or in which he/she/they
may become involved by reason of his/her/their being or having been an
Officer, Director or member of the ARB, Association and/or Declarant,
whether or not he/she/they is/are an Officer, Director, member or employee
of the ARB, Association or Declarant at the time such expenses are
incurred. The foregoing right of indemnification shall be in addition to
and not exclusive of all other rights to which such Officer, Director,
member or employee of the ARB, Association or Declarant may be entitled.
Each Owner
acknowledges that their Unit has been sold and purchased by them in their
“as‑is” “where-is” condition. Each Owner agrees to release, defend,
indemnify and hold Declarant, Declarant’s officers, predecessor officers,
directors, predecessor directors, shareholders, managers, agents and
employees harmless from and against any and all claims, demands, damages,
costs and expenses of whatsoever nature or kind, including attorney's
fees, disbursements and costs, arising from any matter relating to the
Community, including, without limitation, water level fluctuations of any
and all rivers, ponds, creeks, and wetlands on or adjacent to the
Community and other causes or conditions, which are beyond the reasonable
control of Declarant.
Article VII
Maintenance, Repair & Replacement
7.1 Maintenance of Units. Each Owner
shall maintain the Home and other permanent improvements and all
landscaping encompassed within such Owner’s Unit in a manner consistent
with the Community Documents and the Community-Wide Standard, unless such
maintenance responsibility is otherwise assumed by or assigned to the
Association or a Neighborhood Association pursuant to any Supplemental
Declaration or other declaration of covenants applicable to such Unit.
Each Owner shall also be responsible for maintaining the landscaping
within that portion of any adjacent Common Area or right of way of a
Public Street lying between the Unit boundary and any wall, fence or curb
located on the Common Area or right-of-way within ten (10) feet of the
Unit boundary; provided, however, that the Owner shall have no right to
remove trees, shrubs or similar vegetation from this area without prior
approval of the Declarant or ARB, as the case may be, pursuant to Articles
IV & VI.
7.2 Maintenance of Neighborhood Property.
Each Neighborhood Association, if any, shall maintain its common property
and any other property for which it has maintenance responsibility in a
manner consistent with the Community Documents and the Community-Wide
Standard. Each Neighborhood Association, if any, shall also be
responsible for maintaining the landscaping within that portion of any
adjacent Common Area or public right of way lying between the boundary of
its common property and any wall, fence or curb located on the Common Area
or public right-of-way within ten (10) feet of the Neighborhood’s
boundary; provided, that the Neighborhood Association shall have no right
to remove trees, shrubs or similar vegetation from this area without prior
approval of the ARB or Declarant pursuant to Articles IV & VI. The Board
may, by duly adopted Resolution, declare the Owners within each
Neighborhood to be responsible for paying, through Neighborhood
Assessments, the costs of operating, maintaining and insuring designated
portions of the Area of Common Responsibility within or adjacent to such
Neighborhood. This may include, without limitation, the costs of
maintaining any signage, entry features, right of way and greenspace
between the Neighborhood and the adjacent Public Streets within the
Neighborhood, and the river or property fronting such river within the
Neighborhood, regardless of ownership and regardless of the fact that such
maintenance may be performed by the Association; provided, however, that
all Neighborhoods that are similarly situated shall be treated in a
similar manner. The Association may assume maintenance responsibility for
property within any Neighborhood, in addition to that designated by any
Supplemental Declaration, either by agreement with the Neighborhood or
because, in the opinion of the Board, the level and quality of service
provided is not consistent with the Community-Wide Standard. All costs of
maintenance pursuant to this Section 7.2 plus an administrative charge
equal to fifteen percent (15%) of such costs shall be assessed as a
Neighborhood Assessment only against the Units within the Neighborhood to
which the services are provided.
7.3 Repair & Replacement of Unit Improvements.
Unless otherwise specifically provided in the Community Documents or in
other instruments creating and assigning maintenance responsibility, each
Owner’s responsibility to maintain such Owner’s Unit shall include the
responsibility to repair and replace the improvements constructed or
installed within such Unit in order to maintain the Unit in a manner
consistent with the Community-Wide Standard. By accepting a deed or other
instrument conveying title to a Unit, each Owner shall be deemed to have
covenanted and agreed to carry property insurance for the full replacement
cost of all insurable improvements constructed or installed within such
Owner’s Unit, less a reasonable deductible. The Association may, but
shall not be obligated to, assume responsibility for obtaining and
maintaining any insurance coverage on behalf of the Owners, the premiums
for such insurance shall be included in a Specific Assessment levied
against each benefited Unit and its Owner. Each Owner shall be further
deemed to have covenanted and agreed that in the event of damage to or
destruction of structures constructed on or installed within such Owner’s
Unit, the Owner shall promptly repair, restore or replace such structures
in manner consistent with the original construction or such other plans
and specifications as are approved in accordance with Article IV.
Alternatively, the Owner may clear the Unit and maintain it in a neat and
attractive, landscaped condition consistent with the Community-Wide
Standard. The Owner shall pay any and all costs not covered by insurance
proceeds. This Section 7.3 shall apply to any Neighborhood Association
responsible for common property within the Neighborhood in the same manner
as if the Neighborhood Association was an Owner and the common property
was a Unit. Additional recorded covenants applicable to any Neighborhood
may establish more stringent requirements for insurance and more stringent
standards for rebuilding or reconstructing structures within the Units
within such Neighborhood and for clearing and maintaining the Units in the
event the structures are not rebuilt or reconstructed.
7.4 Repair & Replacement of Common Area
Improvements. Unless otherwise specifically provided in the Community
Documents or in other instruments creating and assigning maintenance
responsibility, the Association shall be responsible for the maintenance,
repair and replacement of all improvements constructed or installed within
the Common Area in accordance with the requirements of Section 9.4 and
Section 9.7.
Part Three
Community Governance & Administration
This Declaration establishes the Association as the
organization and legal entity through which each Owner may participate in
the governance and administration of the Community. The Association has
reserved certain rights for the Members of the Association. As such, the
Association will not take certain actions where such rights have been
reserved to the Members except in the case of an emergency.
Article VIII
Association & Members
8.1 Functions of Association. The
Association is the corporation that holds or will hold title to the Common
Area, and is responsible for the management, maintenance, operation and
control of the Area of Common Responsibility. The Association is also the
organization charged with the primary responsibility for the enforcement
of the Community Documents. The Association shall perform its functions
in accordance with the Community Documents and the laws of Belize.
8.2 Membership. Every Owner shall be a
Member of the Association. There shall be only one (1) membership per
Unit, which shall be appurtenant to, and inseparable from, such Unit. If
a Unit is owned by more than one Person or Entity, all co-Owners shall
share the privileges of such membership, subject to reasonable regulation
by the Board of Directors and the restrictions on voting set forth in
Section 8.4 and in the Memorandum of Association. All co-Owners of a Unit
shall be jointly and severally obligated to perform the responsibilities
of a Unit Owner. The membership rights of an Owner, which is an Entity,
may be exercised by any Person designated from time to time by such Owner
in a written instrument provided to the Secretary of the Association.
8.3 Classes of Membership. The
Association shall have two classes of Members, more particularly described
as follows:
(a) Class “A” Members. Class “A”
Members shall include all of the Owners except the Class “B” Member, if
any. Class “A” Members shall have one (1) equal vote for each Unit in
which they hold the interest required for membership under Section 8.2,
provided, however, that there shall be only one (1) vote per Unit. No
vote may be exercised for any Unit or other land within the Community that
is exempt from Assessments pursuant to Section 10.13. Class “A” Members
may exercise their voting rights only as provided in Section 8.4.
(b) Class “B” Member. The sole Class
“B” Member shall be Declarant. Declarant may appoint a majority of the
members of the Board of Directors during the Declarant Control Period, as
specified in the Memorandum of Association. Additional rights of
Declarant are specified in the relevant provisions of the Community
Documents. After termination of the Declarant Control Period, the
Declarant shall retain the right to disapprove certain actions of the
Board and committees as provided in the Memorandum of Association. The
Class “B” membership of Declarant shall terminate upon the earlier of: (i)
two (2) years after expiration of the Declarant Control Period pursuant to
Article III of the Memorandum of Association; or (ii) when, in its
discretion, Declarant so determines and declares in a recorded
instrument. Upon termination of the Class “B” membership of Declarant,
Declarant shall become a Class “A” Member entitled to exercise the voting
rights of a Class “A” Member for each Unit that Declarant owns.
8.4 Exercise of Voting Rights. In any
situation in which there is more than one Owner of a Unit, the vote for
such Unit shall be exercised as the co-Owners determine among themselves
and notify the Secretary of the Association in writing prior to the vote
being taken. The voting rights of an Owner that is an Entity may be
exercised by any Person designated from time to time by such Owner in a
notice provided to the Secretary of the Association. Absent such notice,
the voting rights appurtenant to any Unit shall be suspended if more than
one Person or Entity seeks to exercise such rights.
8.5 Neighborhoods, Voting Members & Voting
Groups.
(a) Neighborhoods. Any Neighborhood,
acting either through a Neighborhood Committee elected as provided in the
Memorandum of Association or through a Neighborhood Association, if any,
may request that the Association provide a higher level of service than
that which the Association generally provides to all Neighborhoods or may
request that the Association provide special services for the benefit of
Units in such Neighborhood. Upon the affirmative vote, written consent,
or a combination thereof, of Owners of a majority of the Units within such
Neighborhood, the Association shall provide the requested services to the
extent reasonably available. The cost of such services, which may include
a reasonable administrative charge in such amount as the Board of
Directors deems appropriate (provided any such administrative charge shall
apply at a uniform per-Unit rate to all Neighborhoods receiving such
service), shall be assessed against the Units within such Neighborhood as
a Neighborhood Assessment. Exhibit A to this Declaration,
and each Supplemental Declaration submitting all or portions of the
Additional Land to this Declaration, may, but shall not be obligated to,
assign the submitted property to a specific Neighborhood (by name or other
designation), which Neighborhood may be then existing or newly created.
So long as the Declarant owns any Unit in the Community, Declarant may
unilaterally amend this Declaration or any Supplemental Declaration to
redesignate Neighborhood boundaries. However, two or more existing
Neighborhoods shall not be combined without the consent of the Owners of a
majority of the Units in the affected Neighborhoods.
(b) Voting Members. Each Neighborhood
shall elect a Voting Member who shall be responsible for casting all votes
attributable to Units owned by Class “A” Members in the Neighborhood on
all Association matters requiring a membership vote, except as otherwise
specified in this Declaration or the Memorandum of Association. In
addition, each Neighborhood shall elect an alternate Voting Member who
shall be responsible for casting such votes in the absence of the Voting
Member. The first election of a Voting Member and alternate Voting Member
from each Neighborhood shall occur within one (1) year after the sale of
the first Unit in the Neighborhood to a Person or Entity other than a
Builder. Thereafter, the Board of Directors shall call for an election of
Voting Members and alternates on an annual basis, either by written
ballots cast by mail, computer, or at a physical meeting of the Class “A”
Members within such Neighborhood, as the Board shall determine. Upon
written petition signed by Class “A” Members holding at least ten percent
(10%) of the votes attributable to Units within any Neighborhood, the
election for such Neighborhood shall be held at a physical meeting.
Candidates for election as Voting Members may be nominated by the Board, a
nominating committee, which the Board may appoint, or from the floor at
any meeting at which such election is to be held. The presence, in person
or by proxy, or the filing of ballots by Class “A” Members representing at
least twenty-five percent (25%) of the total Class “A” votes attributable
to the Units in the Neighborhood shall constitute a quorum at any
Neighborhood meeting or election. In the event of a failure to obtain a
quorum or vacancy in such positions for any Neighborhood, the Board may
appoint a Voting Member or alternate Voting Member to represent such
Neighborhood until a successor is elected. For any Neighborhood election,
each Class “A” Member shall be entitled to one equal vote for each Unit,
which such Owner owns in the Neighborhood. The candidate who receives the
greatest number of votes shall be elected as Voting Member and the
candidate receiving the next greatest number of votes shall be elected as
the alternate Voting Member. The Voting Member and the alternate Voting
Member shall serve a term of one (1) year and until their successors are
duly elected. Any Voting Member may be removed, with or without cause,
upon the vote or written petition of the Owners of a majority of the total
number of Units owned by Class “A” Members in the Neighborhood, which the
Voting Member represents. Until such time as the Board first calls for
election of a Voting Member for any Neighborhood, the Owners within such
Neighborhood shall be entitled personally to cast the votes attributable
to their respective Units on any issue requiring a vote of the Members
pursuant to any provision of the Community Documents.
(c) Voting Groups. Declarant may
designate Voting Groups consisting of one or more Neighborhoods for the
purpose of electing members of the Board of Directors. Voting Groups may
be designated to ensure groups with dissimilar interests are represented
on the Board and to avoid some Voting Members being able to elect all
members of the Board due to the number of Units in such Neighborhoods.
Following termination of the Declarant Control Period, the number of
Voting Groups within the Community shall not exceed the total number of
directors to be elected by the Class “A” Members pursuant to the
Memorandum of Association. The Voting Members representing the
Neighborhoods within each Voting Group shall vote on a separate slate of
candidates for election to the Board. Each Voting Group is entitled to
elect the number of directors specified in the Memorandum of Association.
Diagram
8.1 Association Organizational Structure
|
Neighborhood 1 |
Neighborhood 2 |
Neighborhood 3 |
Neighborhood 4 |
Neighborhood 5 |
|
Class ‘A’
Members |
Class ‘A’
Members |
Class ‘A’
Members |
Class ‘A’
Members |
Class ‘A’
Members |
|
|
|
|
|
|
Diagram 8.1 illustrates the organizational structure of
the Association and the manner in which Voting Members and Voting Groups
will elect the Board of Directors after the Declarant Control Period
ends. The number of directors (five), Neighborhoods (five) and Voting
Groups (three) shown in the illustration are for demonstrative purposes
only; the actual number may be different.
Declarant shall establish Voting Groups, if at all, not
later than the date of expiration of the Declarant Control Period by
filing with the Association and Recording a Supplemental Declaration
identifying each Voting Group by legal description or other means such
that the Units within each Voting Group may easily be determined. Such
designation may be amended from time to time by Declarant, acting alone,
at any time prior to the expiration of the Declarant Control Period.
After expiration of Declarant’s right to expand the Community pursuant to
Article XI, the Board of Directors shall have the right to record or amend
such Supplemental Declaration upon the vote of a majority of the total
number of directors and approval of Voting Members representing a majority
of the total number of Neighborhoods and a majority of the total Class “A”
votes in the Association. Neither the recording nor the amendment of such
Supplemental Declaration by Declarant shall constitute an amendment to
this Declaration, and no consent or approval of any Person or Entity shall
be required except as stated in this paragraph. Until such time as Voting
Groups are established, the entire Community shall constitute a single
Voting Group. After a Supplemental Declaration establishing Voting Groups
has been Recorded, any and all portions of the Community, which are not
assigned to a specific Voting Group, shall constitute a single Voting
Group.
Article IX
Association Powers & Responsibilities
9.1 Acquisition of Property by Board of
Directors. The Association, through the actions of the Board of
Directors, may acquire, hold, lease (as lessor or lessee), operate and
dispose of tangible and intangible personal property and real property.
The Association may enter into leases, licenses or operating agreements
for portions of the Common Area, for such consideration or no
consideration as the Board deems appropriate, to permit use of such
portions of the Common Area by community organizations and by others for
the provision of goods or services for the general benefit or convenience
of Owners and other occupants of the Units.
9.2 Conveyance of Property to Association by
Declarant. Declarant, and its designees, may convey to the
Association, and the Association shall accept, personal property and
fee-simple title to, leasehold estates or other interests in any real
property, improved or unimproved, described in Exhibit A.
Declarant shall (to the extent reasonable) convey the initial Common Area
to the Association prior to the conveyance of a Unit to any Person or
Entity other than a Builder. Upon Declarant’s written request, the
Association shall reconvey to Declarant any unimproved portions of the
Common Area, which Declarant originally conveyed to the Association for no
consideration, to the extent conveyed by Declarant in error, or needed by
Declarant to make minor adjustments in property lines.
9.3 Regulation of Common Area. The
Association shall be responsible for the management, operation and control
of the Common Area, subject to any covenants and restrictions set forth in
this Declaration or the deed or other instrument conveying such property
to the Association. The Board of Directors may, by a duly adopted
Resolution of general application, adopt or amend such reasonable Rules &
Regulations governing the use of the Common Area as it deems to be in the
best interests of the health, safety and welfare of the Owners and other
occupants of the Units.
9.4 Maintenance of Area of Common
Responsibility. The Association shall maintain the Area of Common
Responsibility in accordance with the Community-Wide Standard, including,
but not limited to, the following:
(a) all portions of the Common Area and any
landscaping, structures or other improvements located thereon;
(b) landscaping within the rights of way of
the Public Streets within the Community, or within the public rights of
way adjacent to the Community for which the Association has accepted
responsibility by written agreement;
(c) such portions of any additional property
included within the Area of Common Responsibility as may be designated by
this Declaration, any Supplemental Declaration, any Covenant to Share
Costs, or any contract or agreement for maintenance thereof entered into
by the Association;
(d) all community reserves located within the
Community, including for example, improvements and equipment installed
therein or used in connection therewith; and
(e) any property and facilities that Declarant
owns and makes available, on a temporary or permanent basis, for the
primary use of the Association and its Members. Such property and
facilities shall be identified by written notice from Declarant to the
Association and shall remain part of the Area of Common Responsibility
until such time as Declarant revokes such privilege of use and enjoyment
by written notice to the Association. The Association may maintain other
property, which it does not own, including, without limitation, property
dedicated to the public, if the Board of Directors determines that such
maintenance is necessary or desirable to maintain the Community-Wide
Standard. The Association shall not be liable for any damage or injury
occurring on or arising from the condition of property that it does not
own or lease, except to the extent that it has been negligent in the
performance of its maintenance responsibilities. The Association shall
maintain the facilities and equipment within the Area of Common
Responsibility in continuous operation, except for any periods necessary,
as determined in the Board’s sole discretion, to perform necessary
maintenance, repair or replacement, unless Voting Members representing
seventy-five percent (75%) of the Class “A” votes in the Association and
the Class “B” Member, if any, agree in writing to discontinue such
operation. Except as provided above, the Area of Common Responsibility
shall not be reduced, except with Declarant’s prior written approval as
long as Declarant owns any property described in Exhibit A.
The costs associated with the maintenance, repair and replacement of the
improvements located with the Area of Common Responsibility shall be a
Common Expense; provided, the Association may seek reimbursement from the
owners of, or other Persons or Entities responsible for certain portions
of the Area of Common Responsibility pursuant to this Declaration, the
Covenant to Share Costs, other recorded covenants, or agreements with the
owners thereof. Maintenance, repair and replacement of improvements
within the Limited Common Areas shall be a Neighborhood Expense levied
against the Units within the Neighborhood or Neighborhoods or a Specific
Assessment against the Unit or Units to which the Limited Common Areas are
assigned, notwithstanding that the Association may be responsible for
performing such maintenance hereunder.
9.5 Required Insurance Coverages. The
Association, acting through the Board of Directors or its duly authorized
agent, shall obtain and maintain the following insurance policies and
coverages, if reasonably available, or if not reasonably available, the
most nearly equivalent coverages that are reasonably available:
(a) Blanket property insurance covering “risks
of direct physical loss” on a “special form” basis (or comparable coverage
by whatever name denominated) for all insurable improvements within the
Common Area, and within the Area of Common Responsibility to the extent
that Association has assumed the responsibility for the repair and
replacement of such improvements in the event of a casualty. If such
coverage is not generally available at reasonable cost, then “broad form”
coverage may be substituted. All property insurance policies obtained by
the Association shall have policy limits sufficient to cover the full
replacement cost value of the insured improvements under current district
laws and building codes.
(b) Commercial general liability insurance
with regard to the Area of Common Responsibility and the operations of the
Association, insuring the Association and the Members for damage or injury
caused by the negligence of the Association, any of the Members, or
employees, agents, or contractors while acting on the Association’s
behalf. If generally available at reasonable cost, such coverage
(including primary and any umbrella coverage) shall have a limit of at
least One Million U.S. Dollars (U.S.$1,000,000.00) per occurrence with
respect to bodily injury, personal injury, and property damage; provided,
however, that should additional coverage and higher limits be available,
at reasonable cost, that a reasonably prudent person would obtain and
maintain, then the Association shall obtain and maintain such additional
coverages or higher limits.
(c) Workers compensation insurance and
employers liability insurance, if and to the extent required by the laws
of Belize.
(d) Directors’ and officers’ liability
coverage.
(e) Flood insurance, if necessary
and if required by law in Belize to the extent readily available.
(f) Such additional insurance as the Board,
in the exercise of its business judgment, determines to be prudent. In
addition, the Association shall, if so specified in a Supplemental
Declaration applicable to any Neighborhood, obtain and maintain property
insurance on the insurable improvements within such Neighborhood, which
property insurance shall comply with the requirements of Paragraph 9.5(a)
and Section 9.6. Any such policies shall provide for a certificate of
insurance to be furnished, upon request, to the Owner of each Unit within
the Neighborhood.
Premiums for all insurance covering casualties to, or
liability arising from, the Area of Common Responsibility shall be Common
Expenses, except that: (i) premiums for property insurance on Units within
a Neighborhood shall be a Neighborhood Expense; and (ii) premiums for
insurance on Limited Common Areas may be included in the Neighborhood
Expenses of the Neighborhood or Neighborhoods; however, if no
Neighborhoods have been established, then such costs shall be deemed to be
Specific Assessments and shall be levied against the Unit or Units to
which such Limited Common Areas are assigned, unless the Board reasonably
determines that other treatment of the premiums is more equitable and
appropriate.
9.6 Insurance Policy Requirements. The
Association, acting through the Board of Directors, shall retain a
professional insurance consultant to conduct an annual review of the
sufficiency of the Association’s insurance policies and coverages, and
such consultant shall be familiar with insurable replacement costs in
Belize. All Association insurance policies shall provide for a
certificate of insurance to be furnished to the Association and, upon
request and the payment of the then current copying fee and administrative
charge, to each Member insured. The policies may contain a reasonable
deductible, and the amount thereof shall not be subtracted from the face
amount of the policy in determining whether the policy limits satisfy the
requirements of Paragraph 9.5(a). In the event of an insured loss, the
deductible shall be treated as a Common Expense or a Neighborhood Expense,
as applicable, in the same manner as the premiums for the applicable
insurance coverage. However, if the Board reasonably determines, after
the Members have been notified and given an opportunity to be heard in
accordance with the Memorandum of Association, that the loss is the result
of the negligence or willful misconduct of one or more Owners, their
household members, guests, invitees, or lessees, then the Board may levy
the full amount of such deductible against the Unit or Units of such Owner
or Owners as a Specific Assessment. All insurance coverage obtained by
the Board shall: (a) be written by a company that is licensed and
authorized to do business in Belize; (b) be written in the name of the
Association, acting as trustee for the benefited parties (policies on the
Common Areas shall be for the benefit of the Association and its Members);
(policies secured on behalf of a Neighborhood shall be for the benefit of
the Owners of Units within the Neighborhood and their Chargees, as their
interests may appear); (c) not be brought into contribution with insurance
purchased by Owners, occupants, or their Chargees individually; (d)
contain an inflation guard endorsement; (e) include an agreed amount
endorsement, if the policy contains a co-insurance clause; (f) provide
that each Owner is an additional insured with respect to liability arising
out of such Owner’s interest in the Common Area as a Member (provided,
this provision shall not be construed as giving an Owner any ownership
interest in the Common Area); (g) provide that the insurer waives its
rights to require the Association to transfer its recovery rights against
any Owner or household member of an Owner to the insurer (formerly called
a “waiver of subrogation”); (h) include an endorsement precluding
cancellation, invalidation, suspension, or non-renewal by the insurer on
account of any of the Owners, or on account of any curable defect or
violation, without thirty (30) days’ prior written demand to the
Association to cure the defect or violation; and (i) include an
endorsement precluding cancellation, invalidation, or condition to
recovery under the policy on account of any act or omission of any of the
Owners, unless such Owner is acting within the scope of the Owner’s
authority, as an Officer or Director. In addition, the Board shall use
reasonable efforts to secure insurance policies that list the Owners as
additional insureds and provide: (j) a waiver of subrogation as to any
claims against the Board, and the Association’s officers, employees, and
property manager, if any, the Owners and the occupants of the Units, and
their servants, agents, and guests; (k) a waiver of the insurer’s rights
to repair and reconstruct instead of paying cash; (l) an
endorsement excluding the Owners’ individual insurance policies from
consideration under any “other insurance” clause; (m) an endorsement
requiring at least thirty (30) days’ prior written notice to the
Association of any cancellation, substantial modification, or non-renewal;
(n) a cross-liability provision; and (o) a provision vesting in the Board
the exclusive authority to adjust losses; provided, however, no Chargee
having an interest in such losses may be prohibited from participating in
the settlement negotiations, if any, related to the loss.
9.7 Restoration of Improvements after
Casualty. In the event of any casualty to the improvements within the
Common Area or other property which the Association is obligated to
insure, the Board of Directors or its duly authorized agent shall file and
adjust all insurance claims and obtain reliable and detailed estimates of
the cost of restoring the property to substantially the condition in which
it existed before such casualty, allowing for changes or improvements
necessitated by changes in applicable laws and ordinances (and building
codes) in Belize. Damaged improvements within the Common Area shall be
restored or replaced, unless the Voting Members representing at least
seventy-five (75%) of the total Class “A” votes, and the Class “B” Member,
if any, decide within sixty (60) days after the loss not to restore or
replace such improvements. If either the insurance proceeds or estimates
of the loss, or both, are not available to the Association within such
sixty-day period, then the period shall be extended until such funds or
information are available. However, such extension shall not exceed sixty
(60) additional days. Chargee shall have the right to participate in the
determination of whether the damaged or destroyed improvements within the
Common Area shall be restored or replaced. If a decision is made not to
restore or replace the damaged improvements, and no alternative
improvements are authorized, the affected land shall be cleared of all
debris and ruins, and thereafter shall be maintained by the Association in
a neat and attractive, landscaped condition consistent with the
Community-Wide Standard. Any insurance proceeds remaining after paying
the costs of restoration or replacement, or after such settlement as is
necessary and appropriate, shall be paid to any Chargees in proportion to
their interests in such affected property. If all such Chargees are paid
in full and a remaining balance exists, such sums shall be retained by the
Association for the benefit of the Members or the Owners of Units within
the insured Neighborhood, as applicable, and placed in a capital
improvements account. This is a covenant for the benefit of the Chargees,
and may be enforced by the Chargee of any affected Unit. If insurance
proceeds are insufficient to cover the costs of restoration or
replacement, the Board may, without a vote of the Voting Members, levy
Special Assessments to cover the shortfall against those Owners
responsible for the premiums for the applicable insurance coverage under
Paragraph 9.5(a)[the Owners].
9.8 Enforcement of Community Documents.
Every Owner and occupant of a Unit shall comply with the Community
Documents. The Board of Directors may impose sanctions on the Owner
and/or occupant of a Unit for a violation of the Community Documents after
notice and a hearing in accordance with the procedures set forth in the
Memorandum of Association. Such sanctions may include, without
limitation: (a) the imposition of reasonable monetary fines, as specified
in a Resolution of general application duly adopted by the Board, which
fines shall be secured by the lien for Assessments upon the violator’s
Unit (in the event that any occupant of a Unit, or the guest or invitee of
the Owner or occupant of a Unit, violates the Community Documents and a
fine is imposed, the fine shall first be assessed against the violator;
provided, however, if such fine is not paid by the violator within the
time period set by the Board, the Owner shall pay the fine upon receipt of
notice from the Board); (b) the suspension of an Owner’s right to vote;
(c) the suspension of the violator’s right to use any recreational
facilities within the Common Area; provided, however, nothing herein shall
authorize the Board to limit ingress or egress to or from a Unit; (d) the
suspension of any services provided by the Association to an Owner or the
Owner’s Unit, if the Owner is more than thirty (30) days delinquent in
paying any Assessment or other charge owed to the Association; (e) the
exercise of self-help to abate any violation of the Community Documents in
a non-emergency situation, provided such self-help measure is taken
without breaching the peace; (f) requiring an Owner, at such Owner’s sole
cost and expense, to remove from the Owner’s Unit any structure or
improvement constructed or installed in violation of the Community
Documents and to restore and/or reconstruct the Unit to its previous
condition and, upon failure of the Owner to do so, the Board or its
designee shall have the right, but not the obligation, to enter the Unit,
remove such structure or improvement and restore the Unit to substantially
the same condition as previously existed prior to the violation of the
Community Documents and any such action shall not be deemed to be a
trespass; (g) without liability to any Person or Entity, precluding any
contractor, subcontractor, agent, employee or other invitee of an Owner or
occupant of a Unit who fails to comply with the terms and provisions of
Article IV & VI and the Guidelines from continuing or performing any
further activities in the Community; and (h) levying against one or more
Units a Specific Assessments to cover the costs incurred by the
Association to bring a Unit into compliance with the Community Documents.
In addition, the Board may take the following enforcement procedures to
ensure compliance with the Community Documents without the necessity of
compliance with the procedures set forth in the Memorandum of Association:
(i) exercising self-help in any bona fide emergency; or (j)
bringing suit at law to recover monetary damages, or in equity to enjoin
any violation, or both. In addition to any other enforcement rights, if
an Owner fails to properly perform such Owner’s maintenance
responsibilities, the Association may record a notice of such violation or
perform such maintenance responsibilities and levy all costs thereof plus
an administrative charge equal to fifteen percent (15%) of such costs
against such Owner’s Unit and such Owner as a Specific Assessment. If a
Neighborhood Association fails to perform its maintenance
responsibilities, the Association may perform such maintenance and assess
the costs thereof as a Neighborhood Assessment or Specific Assessment
against all Units within such Neighborhood. Except in a bona fide
emergency, the Association shall provide the Owner or Neighborhood
Association, as applicable, reasonable notice and an opportunity to cure
the problem prior to taking such enforcement action. All remedies set
forth in the Community Documents shall be cumulative of any remedies
available at law or in equity. In any action to enforce the Community
Documents, if the Association prevails, it shall be entitled to recover
all costs, including, without limitation, all court costs and reasonable
attorneys’ fees incurred in such action, regardless of whether a lawsuit
is filed and throughout all appellate levels.
9.9 Board of Directors’ Discretion to Take
Action. The Board of Directors shall have the discretion to decide
whether to take enforcement action in any particular case; provided,
however, that the Board shall not be arbitrary or capricious in taking
enforcement action. Without limiting the generality of the foregoing
sentence, the Board may determine that, under the circumstances of a
particular case that: (a) the Association’s position is not strong enough
to justify pursuing enforcement action; or (b) the covenant, restriction
or rule being enforced is, or is likely to be construed as, inconsistent
with applicable law; or (c) although a technical violation may exist or
may have occurred, it is not of such a material nature as to be
objectionable to a reasonable person or to justify expending the
Association’s resources to pursue enforcement action; or (d) that it is
not in the Association’s best interests, based upon hardship, expense, or
other reasonable criteria, to pursue enforcement action. The Board’s
decision not to pursue enforcement action in a particular case shall not
be construed as a waiver of the right of the Association to pursue
enforcement action at a later time, under other circumstances, or preclude
the Association from enforcing any other provision of the Community
Documents. The Association, by contract or other agreement, may enforce
applicable laws of Belize, and permit the judicial and quasi-judicial (or
any other) enforcement agencies to enforce the provisions of the Community
Documents for the benefit of the Association and the Members.
9.10 Implied Rights; Board Authority. The
Association may exercise any right or privilege given to it expressly by
the Community Documents, or reasonably implied from, or reasonably
necessary to effectuate any such right or privilege. All rights and
powers of the Association may be exercised by the Board of Directors
without a vote of the Members, except where the Community Documents or
applicable laws of the State specifically require a vote of the Members.
The Board may initiate, defend, settle, or intervene on behalf of the
Association in mediation, binding or non-binding arbitration, litigation,
or administrative proceedings in matters pertaining to the Area of Common
Responsibility, enforcement of the Community Documents, or any other civil
claim or action involving the Community. However, the Community Documents
shall not be construed as creating any independent legal duty to initiate
litigation on behalf of or in the name of the Association or the Members.
In exercising the rights and powers of the Association, making decisions
on behalf of the Association, and conducting the Association’s affairs,
the Board shall be subject to, and its actions shall be judged in
accordance with, the standards set forth in the Memorandum of Association.
9.11 Indemnification of Directors, Officers &
Others. Subject to applicable laws of Belize, the Association shall
indemnify every Director, Officer and committee member against all damages
and expenses, including attorneys’ fees, reasonably incurred in connection
with any action, suit, or other proceeding (including settlement of any
suit or proceeding, if approved by the then Board of Directors) to which
such Person may be a party by reason of being or having been a Director,
Officer or committee member. The Directors, Officers and committee
members shall not be liable for any mistake of judgment, negligent or
otherwise, except for their own individual willful misfeasance,
malfeasance, misconduct, or actions taken in bad faith. The Directors and
Officers shall have no personal liability with respect to any contract or
other commitment made or action taken in good faith on behalf of the
Association (except to the extent that such Directors or Officers may also
be Members). The Association shall indemnify, release, defend and hold
each Director, Officer and committee member harmless from and against any
and all liability to others on account of any such contract, commitment or
action. This right to be indemnified shall not be exclusive of any other
rights to which any present or former Director, Officer or committee
member may be entitled. The Association shall, as a Common Expense,
maintain adequate general liability and officers’ and directors’ liability
insurance to fund this obligation in accordance with Section 9.5(d) of
Article IX, if such insurance is reasonably available.
9.12
Responsibility for Personal Safety & Security. Every Owner and
occupant of a Unit, and their respective guests and invitees, shall be
responsible for their own personal safety and the security of their
(personal, mixed and real) property within the Community. The Association
may, but shall not be obligated to, maintain or support certain activities
within the Community designed to enhance the level of safety or security
that each Person provides for such Person’s self or property.
Neither Declarant nor the Association shall be deemed to be an insurer
or guarantor of the safety of any Person or the security of any Person’s
property within the Community; nor shall either Declarant or the
Association be held liable for any loss or damage by reason of failure to
provide adequate security or the ineffectiveness of any security measures
undertaken. No representation or warranty is made or shall be implied
that any systems or measures, including any mechanism or system for
limiting access to the Community, cannot be compromised or circumvented,
nor that any such systems or security measures undertaken will in all
cases prevent injury or loss or provide the detection or protection for
which the system is designed or intended. Every Owner shall be
responsible for informing all occupants, tenants, invitees, licensees or
guests of such Owner’s Unit that Declarant, the Association, the Board of
Directors and the members of committees are not insurers or guarantors of
personal safety or the security of (real, personal or mixed) property, and
that each Person within the Community assumes all risks of personal injury
and loss or damage to property, including the Units and their contents,
resulting from the acts of third parties.
ALL OWNERS AND OCCUPANTS OF ANY UNIT, TENANTS, GUESTS AND INVITEES OF
ANY OWNER OR OCCUPANT, AS APPLICABLE, ACKNOWLEDGE THAT THE ASSOCIATION AND
ITS BOARD OF DIRECTORS, DECLARANT, DECLARANT’S OFFICERS, PREDECESSOR
OFFICERS, DIRECTORS, PREDECESSOR DIRECTORS, OR ANY SUCCESSOR DECLARANT AND
THE ARCHITECTURAL REVIEW BOARD DO NOT REPRESENT OR WARRANT THAT ANY FIRE
PROTECTION SYSTEM, BURGLAR ALARM SYSTEM OR OTHER SECURITY SYSTEM OR
MEASURE, INCLUDING ANY MECHANISM OR SYSTEM FOR LIMITING ACCESS TO THE
PROPERTIES MAY NOT BE COMPROMISED OR CIRCUMVENTED, THAT ANY FIRE
PROTECTION OR BURGLAR ALARM SYSTEMS OR OTHER SECURITY SYSTEMS OR MEASURES
WILL PREVENT LOSS BY FIRE, SMOKE, BURGLARY, THEFT, HOLD‑UP, OR OTHERWISE,
NOR THAT FIRE PROTECTION OR BURGLAR ALARM SYSTEMS OR OTHER SECURITY
SYSTEMS OR MEASURES WILL IN ALL CASES PROVIDE THE DETECTION OR PROTECTION
FOR WHICH THE SYSTEM IS DESIGNED OR INTENDED. EACH OWNER AND OCCUPANT OF
ANY UNIT, AND EACH TENANT, GUEST AND INVITEE OF AN OWNER OR OCCUPANT, AS
APPLICABLE, ACKNOWLEDGES AND UNDERSTANDS THAT THE ASSOCIATION, ITS BOARD
OF DIRECTORS AND COMMITTEES, DECLARANT, DECLARANT’S OFFICERS, PREDECESSOR
OFFICERS, DIRECTORS, PREDECESSOR DIRECTORS AND ALL SUCCESSOR DECLARANTS
ARE NOT INSURERS AND THAT EACH OWNER AND OCCUPANT OF ANY UNIT AND EACH
TENANT, GUEST AND INVITEE OF ANY OWNER OR OCCUPANT ASSUMES ALL RISKS FOR
LOSS OR DAMAGE TO PERSONS, TO UNITS AND TO THE CONTENTS OF UNITS AND
FURTHER ACKNOWLEDGES THAT THE ASSOCIATION, ITS BOARD OF DIRECTORS AND
COMMITTEES, DECLARANT, DECLARANT’S OFFICERS, PREDECESSOR OFFICERS,
DIRECTORS, PREDECESSOR DIRECTORS AND ALL SUCCESSOR DECLARANTS HAVE MADE NO
REPRESENTATIONS OR WARRANTIES NOR HAS ANY OWNER, OCCUPANT, TENANT, GUEST
OR INVITEE RELIED UPON ANY REPRESENTATIONS OR WARRANTIES, EXPRESSED OR
IMPLIED, INCLUDING ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR ANY
PARTICULAR PURPOSE, RELATIVE TO ANY FIRE AND/OR BURGLAR ALARM SYSTEMS OR
OTHER SECURITY SYSTEMS RECOMMENDED OR INSTALLED OR ANY SECURITY MEASURES
UNDERTAKEN WITHIN THE PROPERTIES.
9.13 Association Powers Regarding Neighborhood
Associations. The Board of Directors shall have the power to veto any
action taken or contemplated to be taken by any Neighborhood Association
that the Board reasonably determines to be adverse to the interests of the
Association or the Members, or inconsistent with the Community-Wide
Standard. The Association also shall have the power to require specific
action to be taken by any Neighborhood Association in connection with its
obligations and responsibilities, such as requiring specific maintenance,
repairs or aesthetic changes to be effectuated, and requiring that a
proposed budget include certain items and that expenditures be made
therefor. A Neighborhood Association shall take appropriate action, as
required by the Board in a written notice to the Neighborhood Association,
within the reasonable timeframe set by the Association in such notice. If
the Neighborhood Association fails to comply with the Association’s
request, the Association shall have the right, but not the obligation, to
take such action on behalf of the Neighborhood Association, and to levy a
Neighborhood Assessment or Specific Assessments against the Units or
Neighborhood within such Neighborhood to cover the actual costs, as well
as an administrative charge and fines.
9.14 Additional Services Provided by
Association. The Association may provide additional services and
facilities for the Members and their Units, and shall be authorized to
enter into and terminate contracts or agreements with other Persons or
Entities, including Declarant, to provide such additional services and
facilities. The Board of Directors may, by a duly adopted Resolution of
general application, establish and charge user or service fees for any
such additional services and facilities provided, or may include the costs
thereof in the Association’s budget as a Common Expense, if the additional
services or facilities are provided to all Units. Such additional
services and facilities may include, without limitation, landscape
maintenance, pest control, cable television, security, caretaker,
transportation, fire protection, utilities, and similar services and
facilities. Nothing in this Section 9.14 shall be construed as a
representation by Declarant or the Association as to what, if any,
additional services or facilities may be provided. In addition, the Board
shall be permitted to modify or cancel existing contracts or agreements
for additional services or facilities, in its sole discretion, unless it
is otherwise required to provide such services or facilities by the
Community Documents. No Owner shall be exempt from the obligation to pay
such Owner’s share of the costs of such additional services or facilities,
as a Common Expense, by refraining from the use of any services or
facilities provided to all of the Owners or the Units.
9.15 Relationships with Other Properties.
The Association may enter into contractual agreements or covenants to
share costs with any neighboring property to contribute funds for, among
other things, shared or mutually beneficial property or services and/or a
higher level of maintenance for the Area of Common Responsibility.
9.16 Facilities & Services May be Opened to
Public. The Association may permit certain facilities and land within
the Common Area to be opened for the use and enjoyment of the general
public. Such Common Area facilities and lands may include, without
limitation: greenbelts, trails and paths, parks, and other neighborhood
spots conducive to gathering and interaction, the rights of way of the
Private and/or Public Streets and the medians within them, and sidewalks.
Declarant may designate such facilities and lands as open to the general
public at the time Declarant declares such facilities and areas a part of
the Area of Common Responsibility, or the Board of Directors may make such
designation at any time thereafter.
Article X
Association Finances
10.1 Budgeting for Common Expenses. At
least sixty (60) days before the beginning of each fiscal year, the Board
of Directors shall cause the preparation of a budget of the estimated
Common Expenses for the coming fiscal year, including any contributions to
be made to the Reserves pursuant to Section 10.2. The budget shall also
reflect the sources and estimated amounts of funds to cover such expenses,
which may include any surplus revenue to be applied from prior years, any
revenue expected from sources other than Assessments, as well as the
revenue to be raised through the levy of General Assessments and Special
Assessments against the Units as authorized in Section 10.4 and Section
10.5, respectively.
10.2 Budgeting for Reserves. At least
sixty (60) days before the beginning of each fiscal year, the Board of
Directors shall cause the preparation and review of a budget for funding
the Reserves for the repair and replacement of capital assets located
within the Area of Common Responsibility and for each Neighborhood for
which the Association maintains the capital assets as a Neighborhood
Expense. The Reserve budget shall take into account the number and nature
of such capital assets, and the expected life and repair or replacement
cost of each asset. The Board shall include in the Common Expenses stated
in the budget adopted pursuant to Section 10.1, or in the Neighborhood
Expense budgets adopted pursuant to Section 10.3, as appropriate, a
capital contribution to fund Reserves sufficient to meet the anticipated
costs of repairing or replacing such capital assets over the coming fiscal
year or years.
10.3 Budgeting for Neighborhood Expenses.
At least sixty (60) days before the beginning of each fiscal year, the
Board of Directors shall cause the preparation of a separate budget
covering the estimated Neighborhood Expenses for each Neighborhood on
whose behalf Neighborhood Expenses are expected to be incurred during the
coming fiscal year. Each such budget shall include any costs for
additional services or a higher level of services, which the Owners of
Units in such Neighborhood have approved pursuant to Paragraph 8.5(a) and
any contribution to be made to a Reserve pursuant to Section 10.2. The
budget shall also reflect the sources and estimated amounts of funds to
cover such expenses, which may include any surplus to be applied from
prior fiscal years, any income expected from sources other than
Assessments levied against the Units in such Neighborhood, as well as the
amount required to be generated through the levy of Neighborhood
Assessments and Special Assessments against the Units in such
Neighborhood. The Association is hereby authorized to levy Neighborhood
Assessments, in equal shares, against all Units in the Neighborhood that
are subject to Assessments under Section 10.6, in order to fund the
Neighborhood Expenses; provided, if so specified in the applicable
Supplemental Declaration, or if so directed by petition signed by a
majority of the Owners of the Units within the Neighborhood, any portion
of the Assessment intended for exterior maintenance of structures,
insurance on structures, or Reserves for replacement of particular
structures shall be levied on each of the benefited Units in proportion to
the benefit received. The Board shall cause a copy of the Neighborhood
budget and notice of the amount of the Neighborhood Assessment for the
coming fiscal year to at least be electronically delivered to or made
available on Progresso Heights’ website so that each Owner of a Unit
within the Neighborhood has notice thereof at least thirty (30) days prior
to the beginning of the new fiscal year. Such budget and Assessment shall
become effective unless disapproved at a meeting of the Owners of a
majority of the Units in the Neighborhood. However, there shall be no
obligation to call a meeting for the purpose of considering the budget
except upon receipt of a petition of the Owners of at least ten percent
(10%) of the Units in such Neighborhood. This right to disapprove shall
only apply to those line items in the Neighborhood budget, which are
attributable to services requested by the Neighborhood, and shall not
apply to any item which the Community Documents require to be levied as a
Neighborhood Assessment. If the proposed budget for any Neighborhood is
disapproved, or if the Board fails for any reason to determine the budget
for any year, then until such time as a new budget is determined, the
budget in effect for the immediately preceding fiscal year shall continue
to be effective for the current fiscal year. The Board may revise the
budget for any Neighborhood and the amount of any Neighborhood Assessment
at any time and from time to time during the fiscal year, subject to the
notice requirements and the right of the Owners of Units in the affected
Neighborhood to disapprove the revised budget as set forth above. All
amounts collected by the Association as Neighborhood Assessments shall be
held in trust for, and expended solely for the benefit of, the
Neighborhood for which they were collected and shall be accounted for
separately from the Association’s general funds.
10.4 Covenant to Pay Assessments.
Declarant, for itself and for its successors in title to all land within
the Community, hereby covenants and agrees that such land shall be subject
to the levy of Assessments to fund the Common Expenses and other expenses
of the Association incurred on behalf of the Owners, and hereby declares
that the Association is authorized to levy such Assessments pursuant to
this Declaration and the other Community Documents. Every Owner of land
within the Community, by its acceptance of a deed or other instrument
conveying title to such land, shall be deemed to have covenanted and
agreed to pay such Assessments.
10.5 Authority to Levy General Assessments.
The Board of Directors is authorized to levy an annual General Assessment,
in equal shares, against all Units subject to the levy of Assessments
pursuant to this Section 10.5, in order to fund the Common Expenses. In
determining the amount of the General Assessment, the Board of Directors
may consider any revenue anticipated to be raised from Assessments
applicable to any additional Units reasonably anticipated to become
subject to the levy of the General Assessment during the fiscal year.
Declarant may, but shall not be obligated to, reduce the General
Assessment for any fiscal year by paying a subsidy (in addition to any
amounts paid by Declarant under Section 10.13), which may be either a
contribution, an advance against future Assessments due from Declarant, or
a loan, in Declarant’s sole discretion. Any such subsidy shall be
disclosed as a line item in the revenue portion of the budget prepared in
accordance with Section 10.1. By paying such subsidy in any fiscal year,
Declarant shall not be obligated to continue paying such subsidy in future
fiscal years, unless otherwise provided in a written agreement between the
Association and Declarant. The Board shall send (electronically or
otherwise) a copy of the final budget, together with notice of the amount
of the General Assessment to be levied pursuant thereto, to each Owner at
least thirty (30) days prior to the beginning of the new fiscal year. The
budget shall automatically become effective, unless disapproved at a
meeting by Voting Members representing at least seventy-five percent (75%)
of the total Class “A” votes, and the Class “B” Member, if any. There
shall be no obligation to call a meeting for the purpose of considering
the budget, except upon receipt of a petition of the Members in accordance
with the Memorandum of Association. Any such petition must be presented
to the Board within ten (10) days after the electronic transmission,
dissemination or delivery of the budget and notice of any Assessment. If
a proposed budget is disapproved, or the Board fails for any reason to
determine the budget for any fiscal year, then the budget most recently in
effect shall continue in effect until a new budget is determined. The
Board may revise the budget and adjust the General Assessment from time to
time during the fiscal year, subject to the notice requirements in Section
20.14 and the right of the Members to disapprove the revised budget set
forth in this Section 10.5.
10.6 Authority to Levy Special Assessments and
Capital Improvement Assessments. The Association is hereby authorized
to levy and collect:
(a)
Special Assessments to fund
unbudgeted Common Expenses or unbudgeted Neighborhood Expenses. Any such
Special Assessment may be levied against all Units, if such Special
Assessment is to fund unbudgeted Common Expenses, or against the Units
within a particular Neighborhood if such Special Assessment is to fund
unbudgeted Neighborhood Expenses. Except as otherwise specifically
provided in this Declaration, a Special Assessment shall require the
affirmative vote or written consent of Members representing more than
fifty percent (50%) of the total votes appurtenant to the Units that will
be subject to such Special Assessment, and the affirmative vote or written
consent of the Class “B” Member, if any. Special Assessments shall be
payable in such manner and at such times as determined by the Board of
Directors, and may be payable in installments extending beyond the fiscal
year in which the Special Assessment is approved.
(b) Capital Improvements Assessment for the purpose of
defraying, in whole or in part, the cost of any construction,
reconstruction, repair or replacement of an improvement, or other such
addition, upon the Properties, including, for example, fixtures and
personal property related thereto; provided that such Assessment in excess
of the lesser of Fifty Thousand U.S. Dollars (U.S.$50,000) or ten percent
(10%) of the total amount of the current operating budget of the
Association, shall require the vote or written assent of a Majority of the
Class “A” votes of the Members or Voting Delegates representing a majority
of the total Class “A” votes, whichever the case may be, except in the
case of an emergency, fire, or other casualty where, in the reasonable
judgment of the Board, such action is necessary to prevent further
material damage or to protect against bodily injury without taking the
time necessary to obtain the approval of Members. No action authorized in
this Section 6(b) of Article X shall be taken without prior written
consent of Declarant as long as Declarant owns a Unit.
10.7 Authority to Levy Specific Assessments.
The Board of Directors is authorized to levy a Specific Assessment against
a particular Unit or Units as follows:
(a) To cover the costs, including overhead and
administrative costs and charges, of providing any additional services to
a Unit or Units that may be requested from and offered by the Association
(which may include the additional services or facilities identified in
Section 9.14). Specific Assessments for additional services may be levied
prior to the time when such requested services are actually provided; and
(b) To cover costs incurred in bringing the
Unit into compliance with the Community Documents, or costs incurred as a
consequence of the conduct of the Owner or occupants of the Unit, their
agents, contractors, employees, licensees, invitees, or guests; provided,
the Board shall give the Owner of the Unit prior written notice and an
opportunity for a hearing, in accordance with the Memorandum of
Association, before levying any such Specific Assessment under this
Paragraph 10.6(b). The Board may also levy a Specific Assessment against
the Units within any Neighborhood to reimburse the Association for costs
incurred in bringing the Neighborhood into compliance with the provisions
of the Community Documents, provided the Board gives prior written notice
to the Owners of Units in, or the Voting Member representing, the
Neighborhood and an opportunity for such Owners or Voting Member to be
heard before levying such Specific Unit Assessment.
10.8 Time for Payment of Assessments. The
Owner of a Unit shall be obligated to pay Assessments with regard to such
Unit beginning on the first day of the calendar month following: (a) the
month in which the Unit is made subject to this Declaration; or (b) the
month in which the Board of Directors first determines a budget and levies
the first General Assessment pursuant to this Article; whichever is
later. The first General Assessment, and Neighborhood Assessment, if any,
levied against each Unit shall be prorated according to the number of days
remaining in the month and the number of months remaining in the fiscal
year at the time Assessments commence with regard to the Unit. The Owners
shall pay Assessments in such manner and on such dates as the Board may
establish. The Board may require advance payment of Assessments at the
closing of the transfer of title to a Unit, and may also impose special
requirements for Owners with a history (for e.g., two or more) of
delinquent payments. If the Board so provides, the Owners may pay
Assessments in annual, semi-annual, quarterly or monthly installments.
Unless the Board otherwise provides, the General Assessment and any
Neighborhood Assessment shall be due and payable in advance on the first
day of each fiscal year. If any Owner is delinquent in paying any
Assessments or other charges levied on such Owner’s Unit, the Board may
accelerate the entire outstanding balance of all Assessments, thereby
making the full amount of such Assessments immediately due and payable.
10.9 Personal Obligation to Pay Assessments.
Each Owner, by accepting a deed or other instrument transferring title to
a Unit or any other portion of the Community, is deemed to covenant and
agree to pay all Assessments authorized by this Declaration and duly
adopted by the Association in accordance with the Community Documents.
All Assessments, together with interest computed from the due date at an
annual rate of eighteen percent (18%) or the highest rate permitted under
the laws of Belize, whichever is lower, late charges as may be established
by a Resolution of general application duly adopted by the Board, and the
costs of collection, including court costs and reasonable attorneys’ fees,
shall be the personal and continuing obligation of each Owner until paid
in full. At the time of the transfer of title to a Unit, the transferee (i.e.,
the new Owner of the Unit) shall become jointly and severally liable with
the transferor (i.e., the previous Owner of the Unit) for any
unpaid Assessments and other charges due, but unpaid at the time of such
transfer of title. The failure of the Board to determine Assessments or
the pro rata shares thereof applicable to each Unit, or to deliver
to each Owner a notice of such Assessments, shall not be deemed a waiver,
modification, or a release of any Owner from the personal obligation to
pay the Assessments. In such event, each Owner shall continue to pay the
General Assessment on the same basis as during the last fiscal year for
which an Assessment was duly levied, if any, until a new Assessment is
levied, at which time the Association may retroactively levy a modified
General Assessment for any shortfalls in revenue. If any Owner submits a
payment in the form of a check for any Assessments due and payable
hereunder and such check is written on an account with insufficient funds
or is otherwise returned with a stop payment order, in addition to
charging such Owner or Owners a Fifty Dollar (U.S.$50.00) charge for such
returned check, the Association may request and the Owner shall thereafter
make such payment and all future payments by cashier’s check, certified
check, credit card or money order or such other form or method of payment
reasonably acceptable to the Association.
10.10 Lien Securing Payment of Assessments.
The Association shall have a lien against each Unit, including those Units
owned by Declarant, to secure the payment of delinquent Assessments, as
well as the interest, the late charges, and the costs of collection
identified in Section 10.8. Such lien shall be superior to all other
liens, except: (a) those liens securing the payment of all taxes, bonds,
assessments, and other levies which by law are of superior priority; and
(b) the lien or security title of any recorded first-priority Charge
granted in good faith and for value. When such lien secures a delinquent
obligation, the Association may enforce the lien by suit, judgment, and
judicial foreclosure. The Declarant during the Declarant Control Period
and the Association thereafter may bid for the Unit at the foreclosure
sale, and borrow the money to acquire, acquire, hold, lease, Charge, and
convey the Unit. After the foreclosure of the Association’s lien against
a Unit, and continuing so long as the Unit is owned by the Association:
(a) no right to vote shall be exercised on the Unit’s behalf; (b) no
Assessment shall be levied against the Unit; and (c) every other Unit
shall be charged, in addition to its usual Assessment, a pro rata
share of the Assessment that would have been levied against such Unit had
it not been owned by the Association. The Association may, in its
discretion, sue an Owner for unpaid Assessments and other charges
authorized hereunder without foreclosing or waiving the lien securing such
Assessments and other charges. The transfer of title to any Unit shall
not affect the validity of the lien for delinquent Assessments, nor
relieve such Unit from the lien for any subsequent Assessments. However,
the transfer of title to any Unit pursuant to the foreclosure of a
first-priority Charge, or the Chargee’s acceptance of a deed in lieu
thereof, shall extinguish the lien as to any installments of such
Assessments that were due prior to the date of the foreclosure or deed in
lieu thereof. The new Owner acquiring title to the Unit subsequent to the
foreclosure, or deed in lieu thereof, shall not be liable for the
installments of Assessments against such Unit that were due before such
Owner’s acquisition of title. Such unpaid installments of Assessments
shall be deemed to be Common Expenses to be collected from the Owners of
all Units subject to the levy of Assessments under Section 10.5, including
the new Owner of the subject Unit.
10.11 No Abatement or Set-Off Applicable to
Assessments. No Owner may reduce or eliminate such Owner’s personal
liability for Assessments by refraining from the use of the Common Areas,
by abandoning such Owner’s Unit, or by any other means. The personal
obligation to pay Assessments shall be deemed to be a separate and
independent covenant on the part of each Owner. No Owner may claim
diminution or abatement of the Assessments or set-off for any alleged
failure of the Association or Board of Directors to take some action or to
perform some function, or for any inconvenience or discomfort arising from
the maintenance, repair, replacement or improvement of Common Areas, or
from any other action the Association or Board takes or does not take.
10.12 Certificate Regarding Payment Status of
Assessments (Estoppel Letters). Upon receipt of the written request
of any Owner, the Association shall provide such Owner with a written
certificate, signed by an Officer, setting forth the estoppel information
or payment status of all Assessments duly levied by the Association
against such Owner’s Unit. Such certificate shall be conclusive evidence
of payment or non-payment, whichever the case may be. The Association may
require the advance payment of a reasonable processing fee for the
issuance of such certificate, as established by a Resolution of general
application duly adopted by the Board.
10.13 Declarant’s Exemption from Assessment
Obligations and Option to Fund Budget Deficits. During the Declarant
Control Period, Declarant will be exempt from the obligation to pay
Assessments, which are imposed or are to be imposed against the Units that
Declarant owns. Regardless of Declarant’s election—that is, to fund any
deficits or exempt itself from Assessment obligations, Declarant’s
obligations hereunder may be satisfied in the form of cash or by in-kind
contributions of services or materials, or by a combination of thereof.
10.14 Property Exempt from Assessments. The
following land within the Community shall be exempt from the payment of
General Assessments, Neighborhood Assessments, and Special Assessments:
(a) All of the Common Areas and such portions
of the land owned by Declarant as are included within the Area of Common
Responsibility; and
(b) Any land dedicated to and accepted by any
governmental authority or public utility; and
(c) Property owned by any Neighborhood
Association for the common use and enjoyment of the Owners of Units within
such Neighborhood, or owned by the members of a Neighborhood Association
as tenants in common.
10.15 Capitalization of Association. The
Board of Directors may, by a duly adopted Resolution of general
application, establish and collect a Capital Contribution, levied upon
acquisition of record title to a Unit by the first Owner thereof, other
than Declarant or a Builder, such first Owner (in addition to and not in
lieu of its Assessment obligation) shall make a contribution to the
working capital of the Association in an amount equal to one-third (1/3)
of the annual General Assessment then applicable to such Unit (the “Capital
Contribution”). The Capital Contribution shall be in addition to, not
in lieu of, the pro rata share of the General Assessment applicable
to such Unit, and shall not be considered an advance payment of any
Assessment nor shall such payment be refundable. The Association shall
use the Capital Contributions to pay the operating expenses and other
expenses incurred by the Association pursuant to this Declaration and the
other Community Documents.
10.16 Community Enhancement/Transfer Fee.
(a) Authority. The Board of Directors
may, by a duly adopted Resolution of general application, establish and
collect a transfer fee from the transferring Owner upon each transfer of
title to a Unit in the Community, which fee shall be payable to the
Association at the closing of the transfer and shall be secured by the
Association’s lien for Assessments pursuant to Section 10.7 (the “Transfer
Fee”). The Owner proposing to transfer title to such Owner’s Unit
shall provide written notice to the Association’s Secretary of such
proposed transfer at least thirty (30) days prior to the transfer. Such
notice shall include the name of the buyer, the date of the proposed
transfer, and such other information reasonably required by the Board.
(b) Transfer Fee Limit. The Board of
Directors may, in its sole discretion, establish the amount or method of
determining the Transfer Fee in a Resolution of general application duly
adopted from time to time. The Board is authorized, but not required, to
determine the transfer fee based upon a sliding scale, which varies in
accordance with the “gross selling price” of the property or any other
factor as determined by the Board. However, in no event shall the
Transfer Fee exceed one percent (1.0%) of the gross purchase price of the
Unit. Until the Board passes a Resolution to the contrary, the Transfer
Fee shall be One Percent of the gross purchase price of the Unit. For the
purpose of determining the amount of the Transfer Fee, the gross purchase
price shall be the total cost to the purchaser of purchasing the Unit,
excluding closing costs and title transfer taxes and recording fees
imposed by the governmental agencies of Belize.
(c) Purpose. All Transfer Fees
collected by the Association shall be deposited into a segregated account
used for such purposes as the Board deems beneficial to the general
welfare of the Community, which the Community Documents do not otherwise
require to be addressed by the Association’s general operating budget. By
way of example and not limitation, such Transfer Fees may be used to
assist the Association in funding: (i) the preservation and maintenance of
natural areas, reserves, wildlife preserves, or similar conservation
areas, and sponsorship of educational programs and activities which
contribute to the overall understanding, appreciation and preservation of
the natural environment within the Community; (ii) programs and activities
which serve to promote a sense of community within the Community, such as
recreational leagues, cultural programs, educational programs, festivals
and holiday celebrations and activities, a community computer network, and
recycling programs; and (iii) social services, community outreach
programs, and other charitable causes.
(d) Exempt Transfers. Notwithstanding
any provision of this Declaration to the contrary, no Transfer Fee shall
be levied upon the transfer of title to a Unit: (i) by or to Declarant;
(ii) by a Builder who held title solely for the purposes of development
and resale; (iii) by a co-owner to any Person who was a co-owner
immediately prior to such transfer; (iv) to the Owner’s estate, surviving
spouse or heirs upon the death of the Owner; (v) to an Entity wholly-
owned by the grantor; provided, upon any subsequent transfer of an
ownership interest in such Entity, the Transfer Fee shall become due; or
(vi) to an institutional lender or the Association pursuant to the
foreclosure of a Charge or lien or a deed in lieu thereof.
Part Four
Community Development
This Declaration reserves various rights to Declarant, as
the developer of the Community, in order to facilitate the smooth and
orderly development of the Community and to accommodate changes in the
Master Plan, which inevitably occur as the Community grows and matures.
Article XI
Additional Rights Reserved by Declarant
11.1 Withdrawal of Land. Declarant
reserves the right to amend this Declaration, so long as Declarant owns a
Unit in the Community for the purpose of removing any portion of the
Community, which has not yet been improved with structures from the
coverage of this Declaration, provided such withdrawal does not reduce the
total number of Units then subject to the Declaration by more than twenty
percent (20%). Such amendment shall not require the consent of anyone
other than the Owner or Owners of the land to be withdrawn. If Declarant
withdraws land that has been previously designated as part of the Common
Area, the Association must consent to such withdrawal.
11.2 Marketing & Sales Activities.
Declarant, and the Builders authorized by Declarant, may construct and
maintain upon portions of the Common Area such facilities and conduct such
activities as, in Declarant’s sole opinion, may be reasonably required,
convenient, or incidental to the construction, sale or leasing of Units,
including, but not limited to, business offices, signs, model homes, and
sales offices. Declarant and the authorized Builders shall have easements
for access to and use of such facilities. The Declarant may charge such
Builders a fee for using such facilities.
11.3 Right to Develop. Declarant, and its
employees, agents, and designees, shall have a right of access and use and
an easement over and upon all of the Common Area for the purpose of
constructing and installing such improvements to the Common Area as
Declarant deems appropriate, in its sole discretion. Every Person or
Entity that acquires any interest in the Community, by acceptance of a
deed or other instrument transferring such interest, acknowledges that the
Community is a mixed-use, master planned development, the development of
which is likely to extend over many years, and agrees not to protest,
challenge or otherwise object to (a) changes in uses or density of
property outside the Neighborhood in which such Person holds an interest;
or (b) changes in the Master Plan as it relates to property outside the
Neighborhood in which such Person holds an interest.
11.4 Right to Approve Additional Covenants.
So long as Declarant owns any portion of the land described in
Exhibit A, no one may record any declaration of covenants,
conditions and restrictions, or declaration of condominium or similar
instrument affecting any portion of the Community without Declarant’s
prior review and written consent. The recording of any such instrument,
without Declarant’s prior written consent, shall result in such instrument
being void and of no force and effect, unless Declarant subsequently
approves such instrument in a written consent executed and recorded by
Declarant.
11.5 Right to Approve Changes in Community
Standards. No amendment to or modification of the Guidelines or the
Rules & Regulations shall be effective without Declarant’s prior review
and written consent so long as Declarant owns any portion of the land
described in Exhibit A .
11.6 Right to Assign Declarant Rights. Any
or all of Declarant’s special rights and obligations set forth in this
Declaration or the other Community Documents may be assigned in whole or
in part to other Persons or Entities; provided, however, that such
assignment shall not reduce an obligation nor enlarge a right beyond that
which Declarant has under this Declaration or the other Community
Documents. No such assignment shall be effective unless it is set forth
in a written instrument consented to and executed and recorded by
Declarant. Notwithstanding the foregoing sentence, Declarant may permit
other Persons or Entities to exercise, on a one-time or other limited
basis, any right reserved to Declarant in this Declaration when Declarant
does not intend to assign such right permanently, and, in such case,
Declarant shall not be required to record a written assignment unless it
is necessary to evidence Declarant’s consent to such exercise.
11.7 Exclusive Right to Use Name of Community.
No one may use the name “Progresso Heights” or any derivative of such name
in any logo, depiction or printed or promotional material without
Declarant’s prior review and written consent. However, the Owners may use
the name “Progresso Heights” in printed or promotional material where such
term is used solely to specify that particular parcels of land are located
within the Community, and the Association shall be entitled to use the
words “Progresso Heights” in its name.
11.8 Easement to Inspect & Right to Correct.
Declarant reserves for itself and others it may designate the right to
inspect, monitor, test, redesign, and correct any structure, improvement
or condition which may exist on any portion of the land within the
Community, including Units, and a perpetual non-exclusive easement of
access throughout the Community to the extent reasonably necessary to
exercise such right. Except in a bona fide emergency and except as
otherwise provided for herein, no one may enter a Unit except after
reasonable notice to the Owner, and no one may enter a Home without the
consent of the Owner. The Person or Entity exercising this easement shall
promptly repair, at such Person’s or Entity’s sole expense, any damage
resulting from such exercise.
11.9 Right to Notice of Design or Construction
Claims. No Owner, or any agent of an Owner, shall retain an expert
for the purpose of inspecting the design or construction of any
improvements within the Community in connection with or in anticipation of
any potential or pending claim, demand or litigation involving such design
or construction, unless Declarant, and any Builder involved in the design
or construction thereof, have been first notified in writing and given an
opportunity to meet with the Owner to discuss the Owner’s concerns and
conduct their own inspection.
11.10 Termination of Rights. The rights
contained in this Article shall not terminate until the earlier of (a)
forty (40) years from the date this Declaration is recorded; or (b) such
time as Declarant executes and records a written statement that all sales
activity in the Community has ceased.
Part Five
Property Rights Within the Community
The nature of living in a planned development, with its
wide array of properties and development types and its ongoing development
activity, requires the creation of special property rights and provisions
to address the needs and responsibilities of Declarant, the Owners, the
Association, and other Persons or Entities who own land within or adjacent
to the Community.
Article XII
Easements
12.1 Easements in Common Area. Declarant
reserves for itself, and grants and declares for each Owner of a Unit
within the Community, a non-exclusive right and easement of use, access,
and enjoyment in and to the Common Area, subject to:
(a) The covenants, conditions, restrictions
and easements set forth in this Declaration and the other Community
Documents, as well as any other recorded covenants, conditions,
restrictions and easements applicable to the Common Area;
(b) Any covenants, conditions, restrictions or
easements set forth in any deed conveying the Common Area to the
Association;
(c) The Board of Directors’ right to: (i)
adopt Rules & Regulations governing the use and enjoyment of the Common
Area, including Rules limiting the number of guests who may use the Common
Area; (ii) suspend an Owner’s right to use recreational facilities within
the Common Area for (A) any period during which any Assessment or other
charge against such Owner’s Unit remains delinquent; and (B) a period not
to exceed sixty (60) days for a single violation or for a longer period in
the case of any continuing violation, of the Community Documents after
notice and a hearing pursuant to the Memorandum of Association; (iii)
dedicate or transfer all or any part of the Common Area, subject to such
approval requirements as may be set forth in this Declaration; (iv) impose
reasonable membership requirements and charge reasonable admission or
other user or service fees for the use of any recreational facility
situated within the Common Area; (v) permit use of any recreational
facilities situated on the Common Area by Persons other than Owners, their
family members, tenants, and guests upon payment of use fees established
by the Board, and designate other areas and facilities within the Area of
Common Responsibility as open for the use and enjoyment of the general
public; and (vi) Charge, pledge, or hypothecate any or all of its real or
personal property as security for money borrowed or debts incurred; and
(d) The rights of certain Owners to the
exclusive use of those portions of the Common Area designated as Limited
Common Areas pursuant to Article XIII. Any Owner may extend such Owner’s
right of use and enjoyment to the Owner’s family members, tenants, and
social invitees, as applicable, subject to reasonable Rules & Regulations
adopted by the Board of Directors pursuant to Article IV. An Owner who
leases such Owner’s Unit shall be deemed to have assigned all such rights
to the tenants of such Unit for the term of the lease.
12.2 Easements for Encroachments.
Declarant reserves for itself, and grants and declares for each Owner of a
Unit within the Community, a reciprocal appurtenant easement for
encroachments, and for maintenance and use of any encroaching improvement,
between each Unit and any adjacent Common Area, and any Unit due to the
unintentional placement or settling or shifting of the improvements
constructed, installed, or modified thereon (in accordance with the terms
of these restrictions) to a distance of not more than three (3) feet, as
measured from any point on the common boundary. However, in no event
shall an easement for encroachment exist if such encroachment occurred due
to willful and knowing conduct on the part of, or with the knowledge and
consent of, the Person or Entity claiming the benefit of such easement.
Such easement for encroachment shall exist for the life of the encroaching
improvement, but shall automatically terminate upon the removal or
demolition of the encroaching improvement.
12.3 Easements for Utilities, Etc.
Declarant reserves for itself, and grants and declares for any other
Person or Entity specified, the following easements throughout the
Community:
(a) Installation & Maintenance of Utilities.
Declarant reserves, for itself so long as Declarant owns any property
described in Exhibit A and grants and declares for the
Association and all utility providers, perpetual non-exclusive easements
throughout the Community (but not through a structure) to the extent
reasonably necessary: (i) to install utility service lines, equipment and
infrastructure to serve the Community, cable and other systems for sending
and receiving data and/or other electronic signals, security and similar
systems, walkways, pathways and trails, drainage systems, street lights
and signage on property which Declarant owns or within public
rights-of-way or easements reserved for such purpose(s) on recorded plats;
(ii) inspecting, maintaining, repairing, and replacing the utility service
lines, equipment, infrastructure, and other improvements described in
Subparagraph (i) above; and (iii) to read utility service meters installed
within the Units or the Common Areas.
(b) Specific Easements. Declarant also
reserves for itself the non-exclusive right and power to grant and record
such specific easements as may be necessary, in Declarant’s sole
discretion, in connection with the orderly development of any land
described in Exhibit A. The Owner of any land to be
burdened by any easement granted pursuant to this Paragraph 12.3(b) shall
be given written notice in advance of the grant. The location of the
easement shall be subject to the written approval of the Owner of the
burdened property, which approval shall not unreasonably be withheld,
delayed or conditioned.
(c) Minimal Interference. All work
associated with the exercise of the easements described in Paragraphs (a)
and (b) of this Section 12.3 shall be performed in such a manner as to
minimize interference with the use and enjoyment of the Units or Common
Areas burdened by the easement. Upon completion of the work, the Person
or Entity exercising the easement shall restore the affected property, to
the extent reasonably possible, to its condition prior to the commencement
of such work. The exercise of these easements shall not extend to
permitting entry into the Homes or other structures on any Unit, nor shall
it unreasonably interfere with the use of any Unit and, except in an
emergency, entry onto any Unit shall be made only after reasonable notice
to the Owner or other occupant of such Unit.
12.4 Easements for Maintenance, Emergency &
Enforcement. Declarant grants to the Association easements over the
Community as necessary to enable the Association to fulfill its
maintenance responsibilities under Section 9.4. The Association shall
also have the right, but not the obligation, to enter upon any Unit in a
bona fide emergency, or for security and safety reasons, to perform
maintenance and to inspect for the purpose of ensuring compliance with and
enforce the Community Documents. Any member of the Board of Directors and
the Board’s duly authorized agents and assignees, and all emergency
personnel in the performance of their duties may exercise such right.
Except in a bona fide emergency, entry shall only occur during
reasonable hours and after notice to the Owner.
12.5 Easements for River, Lagoon, Creek, Lake &
Pond Maintenance & Flood Water. Declarant reserves for itself and its
successors, assigns, and designees, and grants and declares for the
Association and its successors, assigns, and designees, the non-exclusive
right and easement, but not the obligation, to enter upon, in or around
bodies of water and wetlands located within the Area of Common
Responsibility to: (a) install, operate, maintain, and replace pumps to
supply irrigation water to the Area of Common Responsibility; (b)
construct, maintain, and repair structures and equipment used for
retaining water; and (c) maintain such areas in a manner consistent with
the Community-Wide Standard. Declarant, the Association, and their
respective successors, assigns and designees shall have an access easement
over and across any portions of the Community abutting or containing
bodies of water or wetlands to the extent reasonably necessary to exercise
their rights under this Section 12.5. Declarant reserves for itself and
its successors, assigns and designees, and grants and declares for the
Association and its successors, assigns and designees, a perpetual,
non-exclusive right and easement of access and encroachment over the
Common Area and Units (but not the Homes thereon) adjacent to or within
one hundred (100) feet of bodies of water and wetlands within the
Community, in order to: (a) temporarily flood and back water upon and
maintain water over such portions of the Community; (b) alter in any
manner and generally maintain the bodies of water and wetlands within the
Area of Common Responsibility; and (c) maintain and landscape the slopes
and banks pertaining to such areas. All Persons or Entities entitled to
exercise these easements shall use reasonable care in the intentional
exercise of such easements, and shall repair any damage resulting
therefrom. Nothing in this Section 12.5 shall be construed to make
Declarant or any other Person or Entity liable for damage resulting from
flooding due to hurricanes, heavy rainfall, other natural occurrences or
any other act or occurrence beyond the control of the Declarant.
12.6 Easement to Inspect & Right to Correct.
Declarant reserves for itself and others it may designate the right to
inspect, monitor, test, redesign, and correct any structure, improvement
or condition, which may exist on any portion of the land within the
Community, including, for example, Units, and a perpetual, nonexclusive
easement of access throughout the Community to the extent reasonably
necessary to exercise such right. Except in the case of a bona fide
emergency, no one shall enter a Unit unless reasonable notice has been
provided to the Owner of such Unit, and no one shall enter a Home or other
structure within a Unit without the Owner’s consent. The Person or Entity
exercising this easement shall promptly repair, at such Person or Entity’s
own expense, any damage resulting from such exercise.
12.7 No Easement Terminable Without Consent of
Holder. Notwithstanding any other provision of this Declaration to
the contrary, no express easement granted or declared herein may be
terminated without the consent of the holder of such easement.
Article XIII
Limited Common Areas
13.1 Nature of Limited Common Area.
Declarant hereby reserves the right to designate certain portions of the
Common Area as Limited Common Areas, and to reserve such Limited Common
Areas for the exclusive use or primary benefit of the Owners and occupants
of one or more, but fewer than all, of the Units, or for the exclusive use
or primary benefit of the Owners and occupants of the Units within a
particular Neighborhood or Neighborhoods. The Limited Common Areas may
include, without limitation, entry features, gates, signage, retaining
walls, recreational facilities, landscaped medians and cul-de-sacs,
irrigation systems, lakes, creeks and other portions of the Common Area.
All costs associated with the maintenance, repair, replacement and
insurance of a Limited Common Area shall be an expense allocated among the
Units to which the Limited Common Areas are assigned.
13.2 Designation of Limited Common Area.
Declarant may designate a Limited Common Area described as such in the
deed conveying such area to the Association, in the Exhibits to this
Declaration or any Supplemental Declaration, or on the Plat or Master Plan
that creates and designates such Common Area; provided, however, any such
designation shall not prevent Declarant from later assigning the use and
enjoyment of the same Limited Common Area to additional Units and/or
Neighborhoods. Thereafter, a portion of the Common Area may be designated
as a Limited Common Area, and the use and enjoyment of an existing Limited
Common Area may be assigned or reassigned to other Units, only with
approval of the Board of Directors and the affirmative vote of the Voting
Members representing a majority of the total Class “A” votes, including a
majority of the Class “A” votes within the Neighborhoods affected by the
proposed assignment or reassignment.
13.3 Use of Limited Common Area by Others.
Upon approval by a majority of the Owners of Units to which a Limited
Common Area is assigned, the Association may permit the Owners of other
Units to use all or a portion of such Limited Common Area upon payment of
reasonable user fees, which fees shall be used to offset the expenses
attributable to such Limited Common Area.
Article XIV
Party Walls & Other Shared Structures
14.1 General Rules of Lawn to Apply. Each
wall, fence, driveway, or similar structure that is constructed or
installed as a part of the original improvements on two or more adjoining
Units, and that serves and/or separates such adjoining Units, shall
constitute a party structure. No party structure shall be built upon any
Unit unless approved by the ARB. To the extent not inconsistent with the
provisions of this Section 14.1, the general rules of law regarding party
walls and liability for property damage due to negligence or willful acts
or omissions shall apply thereto. Any dispute arising concerning a party
structure shall be handled in accordance with the provisions of Article
XV.
14.2 Maintenance; Damage & Destruction.
The cost of reasonable maintenance and repair of a party structure shall
be shared equally by the Owners of the Units to which the party structure
is appurtenant. If a party structure is destroyed or damaged by casualty,
then to the extent that such damage is not covered by insurance and
repaired with the proceeds of such insurance, any Owner who has used the
party structure may restore it. If other Owners thereafter use the party
structure, they shall contribute to the restoration cost in equal shares.
However, such contribution will not prejudice the right to call for a
larger contribution from the other users under any rule of law regarding
liability for negligent or willful acts or omissions. The right of any
Owner to contribution from any other Owner under this Section 14.2 shall
be appurtenant to the land and shall pass to such Owner’s successors in
title.
Part Six
Relationships Within & Outside the Community
The growth and success of the Community as a mixed-use,
master planned development in which people enjoy living, working, and
playing requires good-faith efforts to resolve disputes amicably,
attention to and understanding of relationships within the Community and
with its neighbors, and protection of the rights of others who have an
interest in the Community.
Article XV
Dispute Resolution & Limitation on Litigation
15.1 Agreement to Encourage Resolution of
Disputes Without Litigation. Declarant, the Association and its
Directors, officers and committee members, all Persons or Entities subject
to this Declaration, and any Person or Entity not otherwise subject to
this Declaration who agrees to submit to this Article (collectively, the “Bound
Parties”), agree that it is in the best interest of all concerned to
encourage the amicable resolution of disputes involving the Community
without the emotional and financial costs of litigation. Accordingly,
each Bound Party agrees not to file suit in any court with respect to a
Claim described in Section 15.2, unless and until it has first submitted
such Claim to the alternative dispute resolution procedures set forth in
Section 15.3 in a good-faith effort to resolve such Claim.
15.2 Claims to be Resolved. As used in
this Article XVI, the term “Claim” shall mean and include any
claim, grievance, or dispute arising out of or relating to (a) the
interpretation, application, or enforcement of the Community Documents;
(b) the rights, obligations, and duties of any Bound Party under the
Community Documents; or (c) the design, construction, installation or
modification of improvements within the Community, other than matters of
aesthetic judgment under Article VI which shall not be subject to review.
Notwithstanding any other provision of this Declaration or the other
Community Documents to the contrary, the following matters shall not be
considered “Claims” unless all parties to the matter otherwise agree to
submit the matter to the procedures set forth in Section 16.3: (u) any
suit by the Association to collect Assessments or other amounts due from
any Owner, or to foreclose the lien securing Assessments; (v) any suit by
the Association to obtain a temporary restraining order (or emergency
equitable relief) and such ancillary relief as the court may deem
necessary in order to maintain the status quo and preserve the
Association’s ability to enforce the provisions of this Declaration
regarding the creation and maintenance of the Community-Wide Standards;
(w) any suit between Owners, which does not include Declarant or the
Association as a party, if such suit asserts a Claim which would
constitute a cause of action independent of the Community Documents; (x)
any suit in which any indispensable party is not a Bound Party; and (y)
any suit as to which any applicable statute of limitations would expire
within one hundred eighty (180) days of giving the Notice required by
Paragraph 15.3(a), unless the party or parties against whom the Claim is
made agree to toll the statute of limitations as to such Claim for such
period as may reasonably be necessary to comply with this Article.
15.3 Dispute Resolution Procedures. The
following dispute resolution procedures shall apply to any Claim described
in Section 15.2:
(a) Notice. The Bound Party asserting
a Claim (the “Claimant”) against another Bound Party (the “Respondent”)
shall give written notice to each Respondent and to the Board of Directors
stating plainly and concisely: (i) the nature of the Claim, including the
Persons or Entities involved and the Respondent’s role in the Claim; (ii)
the legal basis of the Claim (i.e., the specific authority that
supports the Claim); (iii) the Claimant’s proposed resolution or remedy;
and (iv) the Claimant’s desire to meet with the Respondent to discuss in
good faith ways to resolve the Claim.
(b) Negotiation. The Claimant and the
Respondent shall make every reasonable effort to meet in person, by phone,
electronically, videoconference or otherwise, and confer for the purpose
of resolving the Claim by good-faith negotiation. If requested in
writing, accompanied by a copy of the notice, the Board of Directors may
appoint a representative to assist the parties in negotiating a resolution
of the Claim.
(c) Mediation. If the parties have not
resolved the Claim through negotiation within thirty (30) days of the date
of the notice described in Paragraph 15.3(a) (or within such other period
as the parties may agree), the Claimant shall have thirty (30) additional
days to submit the Claim to mediation with an entity designated by the
Association (if the Association is not a party to the Claim) or to an
independent agency providing dispute resolution services in Belize. If
the Claimant does not submit the Claim to mediation within such time, or
does not appear for the mediation when scheduled, the Claimant shall be
deemed to have waived the Claim, and the Respondent shall be relieved of
any and all liability to the Claimant (but not third parties) on account
of such Claim. If the parties do not settle the Claim within thirty (30)
days after submission of the matter to mediation, or within such time as
determined reasonable by the mediator, the mediator shall issue a notice
of termination of the mediation proceedings indicating that the parties
are at an impasse and the date that mediation was terminated. The
Claimant shall thereafter be entitled to file suit or to initiate
administrative proceedings based upon the Claim, as appropriate. Each
party shall bear its own costs of the mediation, including attorneys’
fees, and each party shall share equally all fees charged by the mediator.
(d) Settlement. Any settlement of the
Claim through negotiation or mediation shall be documented in writing and
signed by the parties. If any party thereafter fails to abide by the
terms of such agreement, then any other party may file suit or initiate
administrative proceedings to enforce such agreement without the need to
again comply with the procedures set forth in this Section 15.3. In such
event, the party taking action to enforce the agreement or award shall,
upon prevailing, be entitled to recover from the non-complying party (or
if more than one non-complying party, from all such parties in equal
shares) all costs incurred in enforcing such agreement or award,
including, without limitation, attorneys’ fees and court costs.
15.4 Initiation of Litigation by Association.
In addition to compliance with the foregoing alternative dispute
resolution procedures, if applicable, the Association shall not initiate
any judicial or administrative proceeding unless first approved by the
affirmative vote of Voting Members entitled to cast seventy-five percent
(75%) of the total Class “A” votes in the Association; provided, however,
that no such approval shall be required for those actions or proceedings:
(a) initiated during the Declarant Control
Period;
(b) initiated to enforce the provisions of
this Declaration, including the collection of Assessments and the
foreclosure of liens;
(c) initiated against any contractor, vendor,
or supplier of goods or services arising out of a contract for services or
supplies; or
(d) to defend claims filed against the
Association or to assert counter-claims in proceedings initiated against
the Association.
This Section
15.4 may not be amended unless such amendment is approved by the same
percentage of votes necessary to initiate proceedings.
15.5 Venue and Jurisdiction.
Notwithstanding anything contained herein to the contrary, each Bound
Party agrees that any Claim (described in Section 15.2 above) may be
brought against the Bound Parties only in the courts in Belize, and each
of the Bound Parties consents (or shall be deemed to have consented by
acceptance of a deed for his or her Unit) to the jurisdiction of such
courts (and of appropriate appellate courts) in any such Claim, action or
proceedings and waives any objection to venue laid therein.
Article XVI
Provisions for Benefit of Chargees
The following provisions are for the benefit of the
holders, insurers and guarantors of first-priority Charges that encumber
Units within the Community. Notwithstanding any other provisions of this
Declaration or the Memorandum of Association, the provisions of this
Article shall govern the rights of such holders, insurers and guarantors
of first-priority Charges.
16.1 Notices of Action. Any holder,
insurer, or guarantor of a first-priority Charge, that provides to the
Association a written request stating the name and address of such holder,
insurer, or guarantor, and the street address or lot and unit number of
the Unit to which its Charge encumbers, shall qualify as an “Eligible
Holder” under this Section 16.1. The Association shall provide timely
notice in accordance with Section 20.14 to each Eligible Holder of any or
all of the following occurrences:
(a) Any taking or condemnation, or conveyance
in lieu thereof, that affects a material portion of the Common Area, or
that affects any Unit encumbered by a first-priority Charge held, insured,
or guaranteed by such Eligible Holder;
(b) Any casualty loss that affects a material
portion of the Common Area, or that affects any Unit encumbered by a
first-priority Charge held, insured, or guaranteed by such Eligible
Holder;
(c) Any delinquency of sixty (60) or more days
in the payment of Assessments or other charges against a Unit encumbered
by the first-priority Charge held, insured or guaranteed by such Eligible
Holder;
(d) Any non-monetary violation of the
Community Documents regarding a Unit encumbered by the first-priority
Charge held, insured or guaranteed by such Eligible Holder, or regarding
the Owner or occupant of such Unit, that is not cured within sixty (60)
days after delivery of notice thereof to the Owner of such Unit; or
(e) Any lapse, cancellation, or material
modification of any insurance policy maintained by the Association.
16.2 Other Provisions for First-Priority Lien
Holders. To the extent not inconsistent with applicable laws of
Belize:
(a) Any restoration, repair or replacement of
the Common Area, or the improvements constructed or installed thereon,
after a partial taking, condemnation, conveyance in lieu thereof, or
damage due to an insurable hazard shall be performed substantially in
accordance with this Declaration and the original plans and
specifications, unless the approval is obtained of the Eligible Holders of
first-priority Charges encumbering Units to which at least fifty percent
(50%) of the votes of Units encumbered by the first-priority Charges held
by such Eligible Holders are allocated.
(b) Any election to terminate the Association
after the substantial destruction of the improvements constructed or
installed within the Common Area, or a substantial taking, condemnation,
or conveyance in lieu thereof, of the Common Area shall require the
approval of the Eligible Holders of first-priority Charges on Units to
which at least fifty percent (50%) of the votes of Units encumbered by the
first-priority Charges held by such Eligible Holders are allocated.
16.3 Amendments to Documents. The
following provisions do not apply to amendments to the Community
Documents, or the termination of the Association as a result of
destruction, damage, or condemnation pursuant to Paragraphs 16.2(a) and
16.2(b).
(a) The consent of the Voting Members
representing at least sixty-seven percent (67%) of the Class “A” votes,
and of Declarant so long as it owns any land subject to this Declaration,
and the approval of the Eligible Holders of first-priority Charges on
Units to which at least sixty-seven percent (67%) of the votes of Units
encumbered by a Charge, shall be required to terminate the Association.
(b) The consent of the Voting Members
representing at least sixty-seven percent (67%) of the Class “A” votes,
and of Declarant so long as it owns any land subject to this Declaration,
and the approval of Eligible Holders of first-priority Charges encumbering
Units to which more than fifty percent (50%) of the votes of Units subject
to a Charge appertain, shall be required to materially amend any
provisions of the Declaration, the Articles of Association, the Memorandum
of Association or to add any material provisions thereto which establish,
provide for, govern, or regulate any of the following: (i) voting rights
and procedures; (ii) Assessments, liens for Assessments, or the
subordination of such liens; (iii) Reserves for the maintenance, repair,
and replacement of the Common Area and improvements constructed or
installed thereon; (iv) insurance; (v) rights to use the Common Area; (vi)
responsibility for maintenance and repair of the Area of Common
Responsibility; (vii) expansion or contraction of the Community or the
addition, annexation, or withdrawal of land to or from the jurisdiction of
the Association; (viii) boundaries of any Unit; (ix) leasing of Units; (x)
imposition of any right of first refusal or similar restriction of the
right of any Owner to sell, convey, or otherwise transfer such Owner’s
Unit; (xi) establishment of self-management by the Association where
professional management has been required by an Eligible Holder; or (xii)
any provisions included in the Community Documents which are for the
express benefit of holders, guarantors, or insurers of first-priority
Charges encumbering the Units.
16.4 No Priority to Condemnation or Insurance
Proceeds. No provision of this Declaration or the other Community
Documents provides, or shall be construed as providing, any Owner, or
other Person or Entity, with priority over any rights of the
first-priority Chargee of any Unit in the case of a distribution to such
Owner of insurance proceeds from a casualty regarding the improvements
constructed or installed within the Common Area, or a distribution of the
proceeds from a taking, condemnation, or deed in lieu thereof, of all or
any portion of the Common Area.
16.5 Notice to Association of Charge. Upon
receipt of a request from the Association, each Owner shall provide the
name and address of the holder of any Charge encumbering such Owner’s
Unit.
16.6 Construction of Article XVI. Nothing
contained in this Article shall be construed to reduce the percentage vote
that must otherwise be obtained under this Declaration, the Articles of
Association, the Memorandum of Association, or applicable law for any of
the acts set forth in this Article XVI.
Part Seven
Changes in the Community
Developments such as the Community are dynamic and
constantly evolving as circumstances, technology, needs and desires, and
laws change, as the residents age and change over time, and as the
surrounding communities changes. The Community and the Community
Documents must be able to adapt to these changes while protecting the
characteristics and qualities that make the Community unique.
Article XVII
Changes in Ownership of Units
Any Owner who desires to sell or otherwise transfer title
to such Owner’s Unit shall give the Association at least thirty (30) days
prior written notice of the Owner’s intended date of transfer. Such
notice shall include the name and address of the proposed purchaser or
transferee, the proposed date of such transfer of title, and such other
information as the Board of Directors may reasonably require. The
transferring Owner shall continue to be jointly and severally responsible
with the transferee Owner for all obligations of the Unit Owner, including
Assessment obligations, until the date upon which the Board receives such
notice, notwithstanding any previous transfer of title.
Article XVIII
Changes in Common Area
18.1 Condemnation. If any part of the
Common Area is taken (or conveyed under threat of, but in lieu of
condemnation), by the Board acting on the written approval of the Voting
Members representing at least sixty-seven percent (67%) of the total Class
“A” votes and of Declarant, so long as Declarant has not assigned
Declarant’s rights thereto or has not voluntarily relinquished such right
in a Supplemental Declaration, by any authority having the power of
condemnation or eminent domain, each Owner shall be entitled to written
notice of such taking or conveyance prior to the disbursement of any
condemnation award or proceeds from such conveyance. Such award or
proceeds shall be payable to the Association to be disbursed as follows:
If the taking, or conveyance in lieu thereof, involves a
portion of the Common Area on which improvements have been constructed or
installed, the Association shall restore or replace such improvements on
the remaining land within the Common Area to the extent possible, unless
within sixty (60) days after such taking or conveyance in lieu thereof,
Declarant, so long as Declarant owns any property subject to the
Declaration, and the Voting Members representing at least seventy-five
percent (75%) of the total Class “A” votes otherwise agree. Any such
construction shall be in accordance with plans approved by the Board of
Directors. The provisions of Section 9.7 regarding funds for restoring
the Common Area improvements shall apply.
If the taking or conveyance does not involve any
improvements on the Common Area, or if a decision is made not to repair or
restore the improvements, or if net funds remain after any such
restoration or replacement is complete, then such award or net funds shall
be disbursed to Chargees in the order and to the extent reported to the
Association.
18.2 Partition. Except as expressly
permitted by this Declaration, the Common Area shall remain undivided, and
no cause of action for partition of any portion of the Common Area shall
lie without the written consent of all of the Owners and the Chargees.
This Section 18.2 shall not prohibit the Board of Directors from acquiring
and disposing of tangible personal property, nor from acquiring and
disposing of real property that may or may not be subject to this
Declaration.
18.3 Transfer or Dedication of Common Area.
The Association may dedicate portions of the Common Area to a governmental
agency of Belize or to any other governmental or quasi-governmental entity
subject to such approval.
Article XIX
Amendment of Declaration
19.1 Amendments by Members. Except as
otherwise specifically provided in Section 19.2 and elsewhere in this
Declaration, this Declaration may be amended only by the affirmative vote
or written consent, or any combination thereof, of the Voting Members
representing sixty-seven percent (67%) of all Class “A” votes, including
sixty-seven (67%) of the Class “A” votes held by the Members other than
Declarant, together with Declarant’s written consent so long Declarant
owns any portion of the land described in Exhibit A. In
addition, the approval requirements set forth in Article XVI shall be met,
if applicable. Notwithstanding the above, the percentage of votes
necessary to amend a specific provision shall not be less than the
prescribed percentage of affirmative votes required for action to be taken
under that provision.
19.2 Amendments by Declarant. In addition
to specific rights to amend this Declaration reserved or granted elsewhere
in this Declaration, Declarant may unilaterally amend this Declaration for
any purpose until termination of the Declarant Control Period. For
instance, Declarant may unilaterally amend this Declaration or the
Community Documents if such amendment is necessary: (a) to bring any
provision into compliance with any applicable governmental statute, rule,
regulation, or judicial determination; (b) to enable any reputable title
insurance company to issue title insurance policies regarding the Units;
(c) to enable any institutional or governmental lender, purchaser,
insurer, or guarantor of Charge loans to make, purchase, insure, or
guarantee loans secured by Charges encumbering the Units; or (d) to
satisfy the requirements of any governmental agency. However, any such
amendment may not adversely affect the title to any Unit, unless the Owner
of each affected Unit consents in writing.
19.3 Validity & Effective Date. No
amendment of or to this Declaration may terminate, revoke, or modify any
(express or implied) right or privilege of Declarant or the Class “B”
Member or the Declarant Control Period without the written consent of
Declarant or the Class “B” Member, respectively (or the assignee of such
rights or privileges, if applicable). If an Owner consents to any
amendment to this Declaration or the Memorandum of Association, it will be
conclusively presumed that such Owner has the authority to consent, and no
contrary provision in any Charge or contract between the Owner and a third
party will affect the validity of such amendment. An amendment shall
become effective upon its recording, unless a later effective date is
specified in the amendment. Any procedural challenge to an amendment must
be made within one hundred eighty (180) days of its recording, or such
amendment shall be presumed to have been validly adopted. In no event
shall a change of conditions or circumstances operate to amend any
provisions of this Declaration, any Community Document or any amendment
thereto.
Article XX
Enforcement & Interpretation
20.1 Association of Declaration by Reference.
Every deed conveying fee-simple title to, or other instrument granting any
other interest in any parcel of land within the Community shall be deemed
to incorporate each and every provision of this Declaration, as amended
from time to time. Every Owner or occupant of a Unit, by acceptance of a
deed conveying title to or other instrument granting any interest in a
Unit, shall be deemed to have agreed to and ratified every provision of
this Declaration, as amended and supplemented from time to time. Such
deed or other instrument shall also be deemed to incorporate therein all
restrictions, easements and other provisions of the Plat that created the
Unit.
20.2 Governing Law & Venue. This
Declaration and the other Community Documents shall be governed by and
interpreted in accordance with the laws of Belize. The proper venue for
the resolution of any litigation, arbitration or mediation based upon or
arising from this Declaration or the subject matter hereof shall be the
courts or other quasi-judicial bodies in and for Belize.
20.3 Enforcement. Every Owner and occupant
of a Unit shall comply with the provisions of this Declaration and the
other Community Documents, as they each may be amended and supplemented
from time to time. If any Owner or occupant fails to comply with the
provisions of this Declaration and the other Community Documents, such
failure shall be a sufficient basis for the initiation of an action by
Declarant, the Association or an aggrieved Owner for recovery of monies
due, damages, or injunctive relief, or for any other remedy available at
law, equity, or expressly provided in this Declaration or the other
Community Documents.
20.4 Waiver of Trial by Jury. All
litigation between or among any of Declarant, the Association, and one or
more Owners shall be determined by a judge of competent jurisdiction, and
not a jury, and every Owner or occupant of a Unit, by acceptance of a deed
conveying title or other instrument granting any interest in a Unit, shall
be deemed to have waived any right to a trial by jury regarding such
matters.
20.5 Attorneys’ Fees. The prevailing party
in any dispute between or among any of Declarant, the Association, and one
or more Owners shall be entitled to recover the prevailing party’s court
costs and reasonable attorneys’ fees and disbursements (whether suit is
initiated or not and including all levels of appeal) from the
non-prevailing party.
20.6 Remedies Cumulative. Unless otherwise
limited by the provisions of this Declaration or the other Community
Documents, the remedies afforded by this Declaration to Declarant, the
Association or any Owner who seeks to enforce one or more of the
provisions hereof shall be cumulative, and the selection of one remedy or
means of enforcement shall not prevent Declarant, the Association or such
Owner from seeking another remedy or means of enforcement afforded by this
Declaration or by the laws of Belize.
20.7 Alternative Dispute Resolution.
Notwithstanding any other provision of this Declaration or the other
Community Documents, Declarant’s intent in recording this Declaration is
to encourage the amicable resolution of disputes between or among
Declarant, the Association and the Owners, and, if possible, to avoid the
financial and emotional costs associated with litigation. Accordingly,
Declarant hereby covenants and agrees, for itself, the Association, and
for every successor in title to any land within the Community, to attempt
to resolve any dispute arising from this Declaration or the other
Community Documents by mediation or arbitration before initiating
litigation. To further encourage the amicable resolution of such
disputes, the Board of Directors may, by a duly adopted Resolution of
general application, impose uniform procedures for mediation and/or
arbitration for any dispute advanced by an Owner. Participation in
mediation or arbitration shall be voluntary and confidential; if any party
to a dispute concludes that such methods of alternative dispute resolution
have become unproductive, then such party may proceed with litigation
after a good-faith effort to resolve the dispute through mediation or
arbitration.
20.8 Priority of Community Documents. In
the event of a conflict between a provision of this Declaration and a
provision of one of the other Community Documents, the provisions of this
Declaration shall control. Likewise, the provisions of the Articles of
Association shall control over those conflicting provisions of the
Memorandum of Association, the Architectural Guidelines, the Rules &
Regulations and the Resolutions; the provisions of the Memorandum of
Association shall control over those conflicting provisions of the
Architectural Guidelines, the Rules and the Resolutions; the provisions of
the Architectural Guidelines shall control over those conflicting
provisions of the Rules and the Resolutions; and the provisions of the
Rules shall control over those conflicting provisions of the Resolutions.
20.9 Severability. If a court of competent
jurisdiction determines that any provision of this Declaration or the
other Community Documents is invalid, such determination shall not affect
the validity of other provisions, which shall remain in full force and
effect. Likewise, if a court of competent jurisdiction determines that
any provision of this Declaration or the other Community Documents is
invalid as applied in a particular instance, such determination shall not
affect the validity of the same provision as applied in other
circumstances.
20.10 Duration. This Declaration, as amended
from time to time, shall remain in effect in perpetuity.
20.11 Time of the Essence. Time shall be of
the essence in the performance of every obligation imposed by a provision
of this Declaration and the Community Documents upon an Owner.
Notwithstanding the preceding sentence, if the deadline set for such
performance falls on a Saturday, Sunday or legal holiday recognized by
Belize, such deadline shall be deemed to have been extended until 5:00
p.m. on the next day that is not a Saturday, Sunday or legal holiday.
20.12 Headings & Captions. Headings of
articles and captions of sections and paragraphs in this Declaration and
the other Community Documents are provided as a convenient means of
reference for the reader, and shall not be construed as interpreting,
limiting or otherwise affecting the meaning of the text of this
Declaration or the other Community Documents.
20.13 Diagrams & Illustrations. Throughout
the Community Documents, certain diagrams have been provided to illustrate
the concepts discussed and to aid the reader’s understanding. Such
diagrams are for illustrative purposes only. In the event of a conflict
between any diagram and the text of this Declaration or any of the other
Community Documents, the text shall control.
20.14 Notices. All notices required or
permitted under this Declaration shall be in writing. A notice to any
Owner, including Declarant, shall be addressed to such Owner at the
mailing address last provided to the Association by the Owner. It
shall be the affirmative obligation of every Owner to provide a current
mailing address to the Association on or before the thirtieth (30th) day
after the effective date of any change in such Owner’s mailing address.
Notices sent to an Owner at the last mailing address provided to the
Association, but returned as undeliverable, shall be deemed to have been
effective. A notice to the Association shall be addressed to the
Association at the mailing address provided in the Association’s annual
corporate report filed with the applicable governmental agency in Belize,
or at such other address as the Association from time to time provides the
Owners in accordance with this Section 20.14 and a copy in all instances
shall be sent to Jason Weaver, Esq., 3531 Griffin Road, Fort Lauderdale,
Florida 33312. A notice may be sent by: (a) certified or
registered U.S. Mail, return receipt requested; (b) hand delivery; or (c)
nationally recognized overnight courier service. A notice sent by
certified or registered U.S. Mail shall be deemed to be delivered on the
third (3rd) business day following its deposit with the U.S.
Postal Service; a notice sent by any other means shall be deemed to be
delivered upon actual delivery to the recipient’s last mailing address
provided to the Association, or upon attempted delivery if the intended
recipient refuses delivery or the last provided address is incorrect.
Notwithstanding the requirements of this Section 20.14, the applicable
provisions of the Memorandum of Association shall govern the method of
delivery of those notices sent by the Association to Members regarding
meetings of the Members or meetings of the Board of Directors.
In Witness Whereof,
Declarant has caused the duly authorized representative of it corporate
Manager to execute this Declaration on the date first written above.
|
Witnesses:
Signed, sealed and delivered this 10th day
of May, 2004, in the presence of:
Official Witness
Commission expires:
[Notarial Seal]
|
Declarant:
PROGRESSO HEIGHTS LIMITED,
a Belize corporation
By:
(Seal)
Its: Director |
[Exhibits to this Declaration begin on
the following page.]
![[logo: Fair Housing and Equal Opportunity]](../_borders/hgv-icn-fheo.gif){kind=small}