DECLARATION OF CONVENANTS
CONDITIONS, AND RESTRICTIONS
FOR
BRADFORD FARMS
THIS DECLARATION OF
COVENANTS, CONDITIONS, AND RESTRICTIONS
Is made this 11th day of November 1993, by Breland Homes, Inc., an Alabama corporation, (hereinafter referred to as “Declarant”), and the undersigned homeowners of Champions Green and Green Springs formerly known as the Villages of Madison, (hereinafter referred to as “Owners”)
Declarant and Owners are the
owners of the real property described in Exhibit “A” attached hereto and
incorporated herein by reference. Declarant and Owners intend by this
Declaration to impose upon the Properties (as defined herein) mutually
beneficial restrictions under a general plan of improvement for the benefit of
all owners of residential property within the Properties. Declarant and Owners
desire to provide a flexible and reasonable procedure for the overall
development of the Properties, and to establish a method for the
administration, maintenance, preservation, use and enjoyment of such Properties
as are now or hereafter subjected to this Declaration;
Declarant and Owners hereby
declare that all of the property described in Exhibit “A” and any additional
property as is hereafter subjected to this Declaration by Supplemental
Declaration (as defined herein) shall be held, sold, and conveyed subject to
the following casements, restrictions, covenants, and conditions which or for
the purpose of protecting the value and desirability of and which shall run
with the real property subjected to this Declaration and which shall be binding
on all parties having any right, title, or interest in the described Properties
or any part thereof, their heirs, successors, successors-in-title and assigns,
and shall inure to the benefit of each owner thereof.
Article I
Definition
Section 1. “Area of
Common Responsibility” shall mean the Common Area together with those
areas, if any, which by the terms of this Declaration, by supplemental
declaration, or by contract or agreement with any Neighborhood, become the responsibility
of the Association. The office of any property manager employed by or
contracting with the Association, if located on the Properties, or any public
rights-of-way within or adjacent to the Properties, may be part of the Area of
Common Responsibility.
Section 2. “Articles of
Incorporation” or "Articles” shall mean the Articles of
Incorporation of Bradford Farms Homeowners, Inc., is filed with the Secretary
of State of the State of Alabama.
Section 3. “Association”
shall mean Bradford Farms Homeowners Association, Inc., an Alabama nonprofit
corporation, its successors or assigned. The “Board of Directors"
or "Board" shall be the elected body having its normal meaning
under Alabama corporate law. The use of the term "association" or
"associations" in lower case shall refer to any other owners
association having jurisdiction over any part of the Properties.
Section 4. “Base
Assessment” shall mean assessments levied against all lots in the
Properties to fund Common Expenses.
Section
5. “By-Laws” shall mean the By-Laws of Bradford Farms Homeowners
Association, Inc., attached hereto as Exhibit "C" and incorporated
herein by reference, as they may be amended from time to time.
Section
6. “Class “B” Control Period” shall mean the period of time
during which the Class "B" Member is entitled to appoint a majority
of the members of the Board of Directors, as provided in Article III, Section
2, of the By-Laws.
Section 7. “Common Area”
shall be an inclusive term referring to all General Common Area and all
exclusive Common Area, as defined herein. The initial Common Area shall be
conveyed to the Association by the Owners and Declarant contemporaneous to the
execution hereof.
Section 8. “Common
Expenses” shall mean and include the actual and estimated expenses incurred
by the Association for the general benefit of all Lot Owners, including any
reasonable reserve, all as may be found to be necessary and appropriate by the
Board pursuant to this Declaration, the By-Laws, and the Articles of
Incorporation of the Association.
Section 9. “Community-Wide
Standard” shall mean the standard of conduct, maintenance, or other
activity generally prevailing throughout the Properties. Such standard may be
more specifically determined by the Board of Directors and the New Construction
Committee.
Section 10. “Declarant”
shall mean Breland Homes, Inc., an Alabama corporation, or its successors,
successors-in-title or assigns who take title to any portion of the property
described on Exhibits “A” or “B” for the purpose of development and sale and
are designated as the Declarant hereunder in a recorded instrument executed by
the immediately preceding Declarant.
Section 11. “Exclusive
Common Area” shall mean certain portions of the Common Area which are for
the exclusive use and benefit of one or more, but less than all, Neighborhoods.
All costs associated with maintenance, repair, replacement and insurance of
Exclusive Common Areas shall be assessed against the Owners of Lots in only
those Neighborhoods which are benefitted thereby as a Neighborhoods Assessment,
as defined herein. By way of illustration and not limitation, Exclusive Common
Areas may include entry features exclusively for a particular Neighborhood or
Neighborhoods and maintained exclusively by Neighborhood Assessments.
Initially, any Exclusive Common Areas shall be designated as such and assigned
in the deed conveying the Common Area to the Association. A portion of the
Common Area may be assigned as Exclusive Common Area of a particular
Neighborhood or Neighborhoods and Exclusive Common Area may be reassigned upon
the vote of a majority of the total Association vote, including a majority of
the votes within the affected Neighborhood (s).
Section 12. "General
Common Area” shall mean all real and personal property which the
Association now or hereafter owns or otherwise holds for the common use and
enjoyment of all Lot Owners.
Section 13. “Master Land Use Plan” shall mean the Subdivision
Layout Plan for the development of the property described on Exhibits
"A" and "B" most recently approved by the City of Madison,
Alabama, as it may be amended from time to time.
Section 14. “Member”
shall mean a Person entitled to membership in the Association, as provided
herein.
Section 15. “Mortgage”.
shall mean a mortgage, a deed of trust, a deed to secure debt, or any other
form of security deed.
Section 16. “Mortagee”
shall mean a beneficiary or holder of a Mortgage.
Section 17. “Mortgagor”
shall mean Person who gives Mortgage
Section 18. “Neighborhood”
shall mean each separately developed and denominated residential area comprised
of One (1) or more housing types subject to this Declaration whether or not
governed by an additional owners association, in which owners may have common
interest other than those common to all Association members, such as a common
theme, entry feature, development name, and/or common areas which are not
available for use by all Association Members. For example, and by way of
illustration and not limitation, each cluster home development, and single-family
detached housing development may constitute a separate Neighborhood. In
addition, each parcel of land intended for development as any of the above may
constitute a Neighborhood, subject to division into more than one (1)
Neighborhood upon development. Where the context permits or requires, the term
Neighborhood shall also refer to the Neighborhood Committee (established in
accordance with the By-Laws) or Neighborhood Association (as defined in Article
III, Section 3) having jurisdiction over the property within the Neighborhood.
Neighborhoods may be divided or combined in accordance with Article III,
Section 3, of this Declaration.
Section 19. “Neighborhood
Assessments” shall mean assessments levied against the Lots in a particular
Neighborhood or Neighborhoods to fund Neighborhood Expenses.
Any Neighborhood Assessment shall be levied equally against all Lots in the Neighborhood benefitting from the services supported thereby, provided that in the event of assessments for exterior maintenance of structures, or insurance on structures, or replacement reserves which pertain to particular structures, such assessments for the use and benefit of particular Lots shall be levied on a pro rata basis among the benefitted Lots.
Section 20. “Neighborhood
Expenses” shall mean and include the actual and estimated expenses incurred
by the Association for the benefit of Owners of Lots within a particular
Neighborhood, which may include a reasonable reserve for capital repairs and
replacements, all as may be specifically authorized from time to time by the
Board of Directors, and as more particularly authorized herein.
Section 21. “Owner”
shall mean one (1) or more Persons who hold the record titled to any Lot which
is part of the Properties, but excluding in all cases any party holding an
interest merely as security for the performance of an obligation. If a Lot is
sold under a recorded contract of sale, and the contract specifically so
provides, then the purchaser (rather than the fee owner) will be considered the
Owner.
Section 22. “Person”
means a natural person, a corporation, a partnership, a trustee, or other legal
entity.
Section 23. “Properties”
shall mean the real property described in Exhibit "A" attached
hereto, together with such additional property as is hereafter subjected to
this Declaration by Supplemental Declaration.
Section 24. “Special
Assessment” Shall mean assessments levied in accordance with Article X,
Section 4 of this Declaration.
Section 25. “Supplement
Declaration” Shall mean an amendment or supplement to this Declaration
which subjects additional property to this Declaration or imposes, expressly or
by reference, additional restrictions and obligations on the land described
therein, or both.
Section 26. “Lot”
shall mean a portion of the properties, whether developed or undeveloped,
intended for development, use, and occupancy as an attached or detached
residence for a single family, and shall, unless otherwise specified, include
within its meaning (by way of illustration, but not limitation) single-family
detached houses on separately platted lots, as well as vacant land intended for
development as such, all as may be developed, used, and defined as herein
provided or as provided in Supplemental Declaration covering all or part of the
Properties. The term shall include all portions of the lot owned including any
structure thereon.
Article II
Property Right
Every Owner shall have a
right and easement of enjoyment in and to the Common Area, subject to this
Declaration as it may be amended from time to time and to any restrictions or
limitations contained in any deed conveying such property to the Association.
Any Owner may delegate his or her right of enjoyment to the members of his or
her family, tenants and social invitees, as applicable, subject to reasonable
regulation by the Board and in accordance with procedures it may adopt. An
Owner who leases his or her Lot shall be deemed to have delegated all such
rights to the lessee of the Lot.
As long as Declarant has an
option to annex additional property pursuant to Article VIII, Section I hereof,
Declarant reserves the right to amend this Declaration unilaterally any time,
without prior notice and without the consent of any Person, for the purpose of
removing certain portions of the Properties then owned by the Declarant or its
affiliates or the Association from the provisions of this Declaration to the
extent originally included in error or as a result of any changes whatsoever in
the plans for Bradford Farms desired to be effected by the Declarant, provided
such withdrawal is not unequivocally contrary to the overall, uniform scheme of
development for Bradford Farms.
Article III
Membership and Voting Rights
Section 1. Membership.
Every Owner, as defined in Article 1, shall be deemed to have a membership in
the Association.
No Owner, whether one (1) or more Persons, shall have more than one (1) membership per Lot owned. In the event the Owner of a Lot is more than one (1) Person, votes and rights of use and enjoyment shall be as provided herein. The rights and privileges of membership may be exercised by a Member or the Member's spouse, subject to the provisions of this Declaration and the By-Laws. The membership rights of a Lot owned by a corporation or partnership shall be exercised by the individual designated by the Owner in a written instrument provided to the Secretary, subject to the provisions of this Declaration and the By-Laws.
Section 2. Voting.
The Association shall have two (2) classes of membership, Class "A"
and Class "B", as follows:
(a) “Class A".
Class "A" Members shall be all Owners with the exception of the Class
"B" Member, if any.
Class "A" Member
shall be entitled to one (1) equal vote for each Lot in which they hold the
interest required for membership under Section I hereof and for which a full
assessment is being paid, and one (1) vote for every four (4) Lots which are
being assessed at a reduced rate, is provided in Article X, Section 1, of this
Declaration. When calculating the number of votes for Lots which are being
assessed at a reduced rate, the number of such Lots shall be rounded to the
nearest whole number that is divisible by four (4), provided, however, in any
event, the Owner of Lots which are being assessed at a reduced rate shall be
entitled to cast at least one (1) vote. In no event shall a Member be permitted
to cast a fraction of a vote.
In any situation where a Member is entitled personally to exercise the vote for his Lot and more than one (1) Person holds the interest in such Lot required for membership, the vote for such Lot shall be exercised as those Persons determine among themselves and advise the Secretary of the Association in writing prior to any meeting. In the absence of such advice, the Lot’s vote shall be suspended if more than one (1) Person seeks to exercise it.
(b) Class “B”. The
Class “B” Member shall be the Declarant. The rights of the Class "B"
Member, including the right to approve actions, taken under this Declaration
and the By-Laws, are specified elsewhere in the Declaration and the By-Laws.
The Class "B" Member shall be entitled to, in its sole discretion,
appoint the members of the Board of Directors during the Class "B"
control period, subject only to Article III, Section 6, of the By-Laws. The
Class "B" Control Period shall terminate, and the Class "B"
membership shall terminate and become converted to Class "A membership,
upon the earlier of:
(i) when all of the Lots
permitted by the Master Land Use Plan for the property described on Exhibits
"A' and "B" of the Declaration have certificates of occupancy
issued thereon and have been conveyed to Persons other than Declarant or
builders holding title solely for the purposes of development and sale;
(ii) January 1, 2005; or
(iii) when, in its
discretion, the Declarant so determines. Notwithstanding any provision to the
contrary contained in this Declaration or the By-Laws, during the Class
“B" Control Period, any action, policy or program of the Association
requiring approval of the Members of the Association shall not be taken or
adopted until also approved in writing by the Class "B" Member.
Section 3. Neighborhoods.
Every Lot shall be located within a Neighborhood as defined in Article 1. The
Lots within a particular Neighborhood may be subject to additional covenants
and/or the Owners may all be members of another owners association
("Neighborhood Association") in addition to the Association, but no
such Neighborhood Association shall be required. Any Neighborhood which does
not have a Neighborhood Association shall elect a Neighborhood Committee, as
described in Article V, Section 3, of the By-Laws, to represent the interests
of Owners of Lots in such Neighborhood.
Each Neighborhood
Association or Committee, upon the affirmative vote, written consent, or a
combination thereof, of a majority of Owners within the Neighborhood, may
request that the Association provide a higher level of service or special
services for the benefit of Lots in such Neighborhood, the cost of which shall
be assessed against the benefitted Lots as a Neighborhood Assessment pursuant
to Article X.
Initially, each portion of
the Properties which is separately owned and which, at the time it is subject
to the Declaration, is intended for separate development as two (2) or more
Lots shall constitute a Neighborhood. The Developer of any such Neighborhood
may apply to the Board of Directors to divide the parcel constituting the
Neighborhood into more than one (1) Neighborhood or to combine two (2)
Neighborhoods into one (1) Neighborhood at any time. Upon a petition signed by
majority of the owners in the Neighborhood, any Neighborhood Association or
Neighborhood Committee may also apply to the Board of Directors to divide the
property comprising the Neighborhood into two (2) or more Neighborhoods or to
combine two (2) Neighborhoods into one (1) Neighborhood. Any such application
shall be in writing and shall include a plat of survey of the entire parcel,
which indicates the boundaries of the proposed Neighborhood. A Neighborhood
division requested by the Neighborhood or by the parcel developer shall
automatically be deemed granted unless the Board of Directors denies such
application in writing within thirty (30) days of its receipt thereof. The
Board may deny an application only upon determination that there is no
reasonable basis for distinguishing between the areas proposed to be divided
into separate Neighborhoods. All applications and copies of any denials shall
be filed with the books and records of the Association and shall be maintained
as long as this Declaration is in effect.
Article IV
Maintenance
Section 1. Association’s Responsibility. The association shall maintain and keep in good repair the Area of Common Responsibility, such maintenance to be funded as hereinafter provided. This maintenance shall include but need not be limited to, maintenance, repair, and replacement, subject to any insurance then in effect, of all landscaping and other flora, structures, and improvements situated upon the Common Areas, of the entry features to the properties, medians and vehicle islands, drainage systems, any recreational facilities on the Common Areas and such portions of any additional property included within the Area of Common Responsibility as may be dictated by this Declaration, any Supplemental Declaration, or by a contract or agreement for maintenance thereof by the Association.
Except as otherwise specifically provided herein, all costs associated. with maintenance, repair and replacement of General Common Areas shall be a Common Expense to be allocated among all Lots as part of the Base Assessment. All costs associated with maintenance, repair and replacement of Exclusive Common Areas shall be a Neighborhood Expense assessed as a Neighborhood assessment solely against the Lots within the Neighborhood (s) to which the Exclusive Common Areas are assigned, notwithstanding that the Association may be responsible for performing such maintenance hereunder.
The Association may, in the discretion of its Board, assume the maintenance responsibilities for any Neighborhood set out in this Declaration or in any Supplemental Declaration or declaration subsequently recorded which creates any Neighborhood Association upon all or any portion of the Properties. In such event, all costs of such maintenance shall be assessed only against the Lots within the Neighborhood to which the services are provided. This assumption of responsibility may take place either by contract or agreement or because, in the opinion of the Board, the level and quality of service then being provided is not consistent with the Community-Wide Standard of the Properties. The provision of services in accordance with this Section shall not constitute discrimination within a class.
The Association shall also have the right, but not the obligation, to enter into easements and covenants to share costs agreements with Persons owning property in vicinity of the Properties, specifically included, but not limited to, Persons owning and operating rental apartment developments in the vicinity of the Properties. Such easements and covenants to share costs agreements may provide for the Person owning such property to pay some portion of the Common Expenses; provided, however, in no event shall the tenants of any apartment development have the right to use recreational facilities on the Common Areas solely by virtue of being a tenant in, an apartment development, unless expressly so permitted in such easements and covenants to share costs agreements or as may be otherwise permitted by the Board.
The Association may maintain 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.
Section 2. Owner’s
Responsibility. Each Owner shall maintain his or her Lot and all structures
of the Lot, parking areas, fences and other improvements comprising the Lot in
a manner consistent with the Community-Wide Standard and all applicable
covenants, unless such maintenance responsibility is otherwise assumed by or
assigned to the Association, a Neighborhood Association, or a Neighborhood
Committee, pursuant to any additional declaration of covenants applicable to
such Lot. If any Owner fails properly to perform his or her maintenance
responsibility, the Association may perform it and assess all costs incurred by
the Association against the Lot and the Owner thereof in accordance with
Article X, Section 4 of this Declaration; provided, however, except when entry
is required due to emergency situation, the Association shall afford the Owner
reasonable notice and an opportunity to cure the problem prior to entry.
Section 3.Neighborhood’s
Responsibility. Upon resolution of the Board of Directors, each
Neighborhood shall be responsible for paying, through Neighborhood Assessments,
cost of maintenance of certain portions of the Area of Common Responsibility
within or adjacent to such Neighborhood, which may include, without limitation,
the cost of maintenance of any right-of-way and green space between the
Neighborhood and adjacent public roads, and lakes or ponds within the
Neighborhood, regardless of ownership and regardless of the fact that such
maintenance may be performed by the Association.
Any Neighborhood Association having responsibility for maintenance of all or a portion of property within a particular Neighborhood pursuant to a declaration of covenants affecting the Neighborhood shall perform such maintenance responsibility in a manner consistent with the Community-Wide Standard. If any such Neighborhood Association fails to perform its maintenance responsibility as required herein and in any additional declaration, the Association may perform it and assess the costs against all Lots within such Neighborhood Association as provided in Article X, Section 4 of this Declaration.
Article V
Insurance and Casualty
Losses
Section 1. Insurance.
The Association's Board of Directors, or its duly authorized agent, shall have
the authority to and shall obtain blanket, all-risk insurance, if reasonably
available, for all insurable improvements on the Common Area. If blanket
all-risk coverage is not reasonably available, then at a minimum an insurance
policy providing fire and extended coverage shall be obtained. This insurance
shall be in an amount sufficient to cover one hundred (100%) percent of the
replacement cost of any repair or reconstruction in the event of damage or
destruction from any insured hazard.
In addition to casualty insurance on the Common Area, the Association may, upon request of a Neighborhood, but shall not under any circumstances be obligated to obtain and continue in effect adequate blanket all-risk casualty insurance, if reasonably available, and not reasonably available, then at a minimum, fire and extended coverage, in such form as the Board of Directors deems appropriate for one hundred (100%) percent of the replacement cost of all structures located on Lots within the neighborhood and/or common property of the Neighborhood Association, and charge the costs thereof to the Owners of Lots within the benefitted Neighborhood as a Neighborhood Assessment, as defined in Article I hereof.
Insurance obtained on the
properties within any Neighborhood, whether obtained by such neighborhood or
the Association, shall at a minimum comply with the applicable provision of
this Section 1, including the provisions of this Article applicable to policy
provisions, loss adjustment, and all other subjects to this Article applies
with regard to insurance on the Common Area. All such insurance shall be for
the full replacement cost. All such policies shall provide for a certificate of
insurance to be furnished to each Member insured, to the Association, and to
the Neighborhood Association, if any.
The Board shall also obtain
a public liability policy covering the Common Area, the Association and its
Members, for all damage or injury caused by the negligence of the Association
or any of its Members or agents. The public liability policy shall have at
least a One Million ($1,000,000.00) Dollar single person limit as respects
bodily injury and property damage, a Three Million ($3,000,000.00) Dollar limit
per occurrence, if reasonably available, and a Five Hundred Thousand
($500,000.00) Dollar minimum property damage limit.
Except as otherwise
specifically provided herein, premiums for all insurance on the Common Area
shall be Common Expenses of the Association and shall be included in the Base
Assessment, as defined in Article I and as more particularly described in
Article X, Section 1; provided, in the discretion of the Board of Directors,
premiums for insurance on Exclusive Common Areas may be included in the
Neighborhood Assessment of the Neighborhood benefitted thereby. The policy may
contain a reasonable deductible, and, in the case of casualty insurance, the
amount thereof shall be added to the face amount of the policy in determining
whether the insurance at least equals the full replacement cost. The deductible
shall be paid by the party who would be liable for the loss or repair in the
absence of insurance and in the event of multiple parties shall be allocated in
relation to the amount each party's loss bears to the total.
All insurance coverage
obtained by the Board of Directors shall be written in the name of the
Association as trustee for the respective benefitted parties, as further
identified in (b) below. Such insurance shall be governed by the provisions
hereinafter set forth:
(a) All policies shall be
written with a company licensed to do business in Alabama which holds a Best's
rating of A or better and is assigned a financial size category of XI or larger
as established by A. M. Best Company, Inc., if reasonably available, or, if not
available, the most nearly equivalent rating.
(b) All policies on the
Common Area shall be for the benefit of the Association and its Members; all
policies secured at the request of a Neighborhood shall be for the benefit of
the Neighborhood Association, if any, the Owners within the Neighborhood and
their Mortgagees, as their interests may appear.
(c) Exclusive authority to
adjust losses under policies obtained by the Association on the Properties
shall be vested in the Association's Board of Directors; provided, however, no
Mortgagee having an interest in such losses may be prohibited from participating
in the settlement negotiations, if any, related thereto.
(d) In no event shall the
insurance coverage obtained and maintained by the Association's Board of
Directors hereunder be brought into contribution with insurance purchased by
individual Owners, occupants, or their Mortgagees.
(e) All casualty insurance
policies shall have an inflation guard endorsement, if reasonably available,
and an agreed amount endorsement with an annual review by one or more qualified
persons, at least one of whom must be in the real estate industry and familiar
with construction in the Madison County, Alabama, area.
(f) The Association's Board
of Directors shall be required to make every reasonable effort to secure
insurance policies that will provide for the following:
(i) a waiver of subrogation
by the insurer as to any claims against the Association’s Board of Directors,
its manager, the Owners, and their respective tenants, servants, agents, and
guest;
(ii) a waiver by the insurer
of its rights to repair and reconstruct, instead of paying cash;
(iii) a statement that no
policy may be canceled, invalidated, suspended, or subject to nonrenewal on
account of any one or more individual Owners;
(iv) a statement that no
policy may be canceled, invalidated, suspended, or subject to nonrenewal on
account of the conduct of any director, officer, or employee of the Association
or its duly authorized manager without prior demand in writing delivered to the
Association to cure the defect and the allowance of a reasonable time thereafter
within which the defect may be cured by the Association, its manager, any
Owner, or Mortgagee;
(v) that any “other
insurance" clause in any policy exclude individual Owners’ policies from
consideration; and
(vi) that the Association
will be given at least thirty (30) days' prior written notice of any
cancellation, substantial modification, or non-renewal.
In addition to the other
insurance required by this Section, the Board shall obtain, as a common
expense, worker's compensation insurance, if and to the extent required by law,
directors' and officers' liability coverage, if reasonably available and flood
insurance, if required. In addition, the Board shall obtain or cause to be
obtained a fidelity bond or bonds on directors, officers, employees, and other
Persons handling or responsible for the Association's funds, if reasonably
available. The amount of fidelity coverage shall be determined in the
director's best business judgment but, if reasonably available, may not be less
than three (3) months' assessments on all Lots, plus reserves on hand. Bonds
shall contain a waiver of all defenses based upon the exclusion of persons
serving without compensation and shall require at least thirty (30) days' prior
written notice to the Association of any cancellation, substantial
modification, or non-renewal.
Section 2. Individual
Insurance. By virtue of taking title to a Lot subject to the terms of this
Declaration, each Owner covenants and agrees with all other Owners and with the
Association that each Owner shall carry blanket all-risk casualty insurance on
the Unit(s) and structures constructed thereon meeting the same requirements as
set forth in Section 1 of this Article V for insurance on the Common Area,
unless the Neighborhood Committee or Neighborhood Association for the
Neighborhood in which the Lot is located or the Association carries such
insurance (which they are not obligated to do hereunder). Each Owner further
covenants and agrees that in the event of a partial loss or damage and
destruction resulting in less than total destruction of structures comprising
his Lot, the Owner shall proceed promptly to repair or to reconstruct the
damaged structure in a manner consistent with the original construction or such
other plans and specifications as are approved in accordance with Article XI of
this Declaration. The Owner shall pay any costs of repair or reconstruction
which is not covered by insurance proceeds. In the event that the structure is
totally destroyed the Owner may decide not to rebuild or to reconstruct, in
which case the Owner shall clear the Lot of all debris and return it to
substantially the natural state in which it existed prior to the beginning of
construction and thereafter the Owner shall continue to maintain the Lot in a
neat and attractive condition consistent with the Community-Wide Standard.
A Neighborhood Association
may impose more stringent requirements regarding the standards for rebuilding
or reconstructing structures on the Lots subject to its jurisdiction and the
standard for returning the Lots to their natural state in the event the
structures are not rebuilt or reconstructed.
Section 3. Damage and
Destruction.
(a) Immediately after damage
or destruction by fire or other casualty to all or any part of the Properties
covered by insurance written in the name of the Association, the Board of
Directors or its duly authorized agent shall proceed with the filing and
adjustment of all claims arising under such insurance and obtain reliable and
detailed estimates of the cost of repairs or reconstruction of the damaged or
destroyed Properties. Repair or reconstruction, as used in this paragraph,
means repairing or restoring the Properties to substantially the condition in
which they existed prior to the fire or other casualty, allowing for any
changes or improvements necessitated by changes in applicable building codes.
(b) Any damage or destruction to the common property of any Neighborhood Association shall be repaired or reconstructed unless the Members representing at least seventy-five (75%) percent of the total vote of the Association, if Common Area, or the Members representing at least seventy five (75%) percent of the total vote of the Neighborhood Association whose common property is damaged, if common property of a Neighborhood Association, shall decide in sixty (60) days after the casualty not to repair or reconstruct. If for any reason either the amount of the insurance proceeds to be paid as a result of such damage or destruction, or reliable and detailed estimates of the cost of repair or reconstruction, or both, are not made available to the Association within said period, then the period shall be extended until such information shall be made available; provided, however, such extension shall not exceed sixty (60) days. No Mortgage shall have the right to participate in the determination of whether the damage or destruction to Common Area or common property of a Neighborhood Association shall be repaired or reconstructed.
(c) In the event that it
should be determined in the manner described above that the damage or
destruction to the Common Area or to common property of any Neighborhood
Association, shall not be repaired or reconstructed and no alternative
improvements are authorized, then and in that event the affected portion of the
Properties shall be restored to their natural state and maintained by the
Association, or the Neighborhood Association, as applicable, in neat and
attractive condition consistent with the Community-Wide Standard.
Section 4. Disbursement
of Proceeds. If the damage or destruction for which the proceeds of
insurance policies are paid is to be repaired or reconstructed, the proceeds,
or such portion thereof as may be required for such purpose, shall be disbursed
in payment if such repairs or reconstruction as herein provided. Any proceeds
remaining after defraying such cost of repair or reconstruction to the common
area shall be retained by and for the benefit of the Association and placed in
a capital improvements account. In the event no repair or reconstruction is
made, any proceeds remaining after making such settlement as is necessary and
appropriate with the affected owner or owners and their Mortgagee(s) as their
interests may appear, shall be retained by and for the benefit of the Association
and placed in a capital improvements account. This is a covenant for the
benefit of any Mortgagee of a Lot and may be enforced by such Mortgagee.
Section 5. Repair and
Reconstruction. If the damage or destruction to the Common Area or to the
common property of a Neighborhood Association for which insurance proceeds are
paid is to be repaired or reconstructed, and such proceeds are not sufficient
to defray the cost thereof, the Board of Directors shall, without the necessity
of a vote of the Members, levy a special assessment against all Owners on the
same basis as provided for Base Assessments; provided, however, if damages or
destruction involves the common property of a Neighborhood Association, only
the owners of Lots in the affected Neighborhood Association shall be subject to
assessment therefore. Additional assessments may be made in like manner at any
time during or following the completion of any repair or reconstruction.
Article VI
Partition
Except as is permitted in
the Declaration or amendments thereto, there shall be no physical partition of
the Common Area or any part thereof, nor shall any person acquiring any
interest in the Properties or any part thereof seek any judicial partition
unless the Properties have been removed from the provisions of this
Declaration. This Article shall not be construed to prohibit the Board of
Directors from acquiring and disposing of tangible personal property or real
property, nor from acquiring title to real property, which may or may not be
subject to this Declaration.
Article VII
Condemnation
Whenever all or any part of
the Common Area shall be taken (or conveyed in lieu of and under threat of
condemnation by the Board acting on the written direction of Members
representing at least two-thirds (2/3) of the total Association vote and the
Declarant, as long as the Declarant owns any property described on Exhibits “A”
or “B”) by any authority having the owner of condemnation or eminent domain,
each Owner shall be entitled to notice thereof. The award made for such taking
shall be payable to the Association as trustee for all Owners to be disbursed
as follows:
If the taking involves a
portion of the common Area on which improvements have been constructed, then,
unless within sixty (60) days after such taking the Declarant, so long as the
Declarant owns any property described in Exhibits “A” or “B” of this
Declaration, and Members representing at least seventy-five (75%) percent of
the total vote of the Association shall otherwise agree, the Association shall
restore or replace such improvements so taken on the remaining land included in
the Common Area to the extent lands are available therefore, in accordance with
the plans approved by the Board of Directors of the Association. If such
improvements are to be repaired or restored, the above provisions in Article V
hereof regarding the disbursement of funds in respect to casualty damage or
destruction which is to be repaired shall apply. If the taking does not involve
any improvements on the Common Area, or if there is a decision made not to
repair or restore, or if there are net funds remaining after any such
restoration or replacement is complete, then such award or net funds shall be
disbursed to the Association and used for such purposes as the Board of
Directors of the Association shall determine.
Article VIII
Annexation of Additional
Property
Section 1. Annexation
Without Approval of Class “A” Membership.
As the owner thereof, or if not the owner, with the consent of the owner thereof, Declarant shall have the unilateral right, privilege, and option, from time to time at any time until all property described on Exhibit “B” has been subject to this Declaration or January 1, 2005, whichever is earlier, to subject to the provision of Declaration and the jurisdiction of the Association all or any portion of the real property described in Exhibit “B”, attached hereto and by reference made a part hereof. Such annexation shall be accomplished by filing in the public records of Madison County, Alabama, a Supplemental Declaration annexing such property. Such Supplement Declaration shall not require the consent of Members. Any such annexation shall be effective upon the filing for record of such Supplement Declaration unless otherwise provided therein. Declarant shall have the unilateral right to transfer to any other Person the said right, privilege, and option to annex additional property which is herein reserved to Declarant, provided that such transferee or assignee shall be the developer of at least a portion of the real property described in Exhibits “A” or “B” and that such transfer is memorialized in a written, recorded instrument executed by the Declarant.
Section 2. Annexation
With Approval of Class “A” Membership. Subject to the consent of the
owners, the Association may annex real property other than that described on
Exhibit “B”, and following the expiration of the right in Section1, any
property described on Exhibit “B”, to the provisions of this Declaration and
the jurisdiction of the Association. Such annexation shall require the
affirmative vote of Members representing a majority of the Class “A” votes of
the Association (other than those held by Declarant) present at a meeting duly
called for such a purpose and of the Declarant, so long as Declarant owns property
subject to this Declaration or which may become subject hereto in accordance
with Section 1 of this Article.
Annexation shall be
accomplished by filing of record in the public records of Madison County,
Alabama, a Supplement Declaration describing the property being annexed. Any
such Supplement Declaration shall be signed by the President and Secretary of
the Association, and by the owner of the property being annexed, and any such
annexation shall be effective upon filing unless otherwise provided therein.
The relevant provisions of the By-Laws dealing with regular or special
meetings, as the case may be, shall apply to determine the time required for
and the proper form of notice of any meeting called for the purpose of
considering annexation of property pursuant to this Section 2 and to ascertain
the presence of a quorum at such meeting.
Section 3. Acquisition of
Additional Common Area. Declarant may convey to the Association additional
real estate, improved or unimproved, located within the properties described in
Exhibits “A” or “B” which upon conveyance or dedication to the Association
shall be accepted by the Association and thereafter shall be maintained by the
association at its expense for the benefit of all its Members.
Section 4. Amendment.
This Article shall not be amended without the prior written consent of
Declarant, so long as the Declarant owns any property described in Exhibits “A”
or “B” hereof.
Article IX
Rights and Obligation of the
Association
Section 1. Common Area. The Association, subject to the rights of the Owners set forth in this Declaration, shall be responsible for the exclusive management and control of the Common Area and all improvements thereon (including, without limitation, furnishings and equipments related thereto and common landscape areas), and shall keep it in good, clean, attractive, and sanitary condition, order, and repair, pursuant to the terms and conditions hereof and consistent with the Community-Wide Standards.
Section 2. Personal Property and Real Property for Common Use. The Association, through action of its Board of Directors, may acquire, hold, and dispose of tangible and intangible personal property and real property. The Board, acting on behalf of the Association, shall accept any real or personal property, leasehold, or other property interests within the Properties conveyed to it by the Declarant, or the Owners.
Section 3. Rules and Regulations. The Association, through its Board of Directors, may make and enforce rules and regulations governing the use of the Properties, which rules and regulation shall be consistent with the rights and duties established by this Declaration. Sanctions may include reasonable monetary fines and suspension of the right to vote and the right to use the recreational facilities. The Board shall, in addition, have the power to seek relief in any court for violations or to abate nuisances. Imposition of sanctions shall be as provided in the By-Laws of the Association.
The Association, through the
Board, by contract or other agreement, shall have the right to enforce city and
county ordinance or permit the City of Madison and the County of Madison to
enforce ordinances on the Properties for the benefit of the Association and its
Members
Section 4. Implied Rights. The Association may exercise any other right or privilege given to it expressly by this Declaration or the By-Laws, and every other right or privilege reasonably to be implied from the ex