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. A copy of the 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 Articles and/or 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 10.7.
(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 10.6.
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. The Declaration may also be referred to and/or known
as Building Guidelines or Eco-Guidelines.
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. A copy of
the 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 Articles and/or
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 Articles and/or
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, only the 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 Articles and/or 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 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, lagoons, 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.
Notwithstanding any of the above, Units designated as
Residential may operate a �Bed and Breakfast� establishment,
so long as the owners of said operation remain in compliance
with i-v, above, and other rules and regulations as
designated in this Declaration. During the Declarant
Control Period, no Owner or Resident, nor any individual on
any Unit or Lot, may engage in any form of advertisement, or
sale, or brokering for sale, of any real estate, land, or
property.
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.
3.25 Disaster Management.
(a) Reduction of Vulnerability to Natural
Disasters
In the event that a hurricane should threaten to have an
effect upon the Development, the Declarant and/or
Association shall initiate the Hurricane Emergency Procedure
as outlined in the Environmental Impact Assessment (EIA).
(b) Emergency Preparations
The Declarant and/or the Association
shall have authority to take emergency measures or otherwise
take emergency precautions to ensure the safety of property
and life, in the event that a Hurricane or other natural
disaster should threaten or strike. This may include, but is
not limited to, requiring that Unit or Lot Owners: (1) Close
and secure all hurricane shutters properly; (2) Be sure that
a window or door can be opened on the side of the house
opposite to the one facing the wind. (3) Be sure that an
adequate supply of drinking water as well as canned food or
other food that needs no cooking or refrigeration is on
hand. Check for, and remove, everything that may blow away
or be torn loose during a storm and store them inside the
buildings if possible. This may include potted plants, lawn
furniture, boats, or other items which may be carried by
hurricane force winds. This will include any materials which
may be present on your lot as a result of construction.
Owners are responsible for securing or removing any debris
or other items which may be located on their property but
which are not owned by them, such as construction materials,
or items belonging to guests. (5) Ordering all or certain
owners to evacuate the area.
(c) Hurricane Preparedness Plan
(i) Hurricane Warning System
Progresso Heights will follow the official alert system
currently in place by the National Emergency Management
Organization (NEMO). It will follow the district branch�s
alert system (DEMO) closely. Owners are advised to follow
local media in order to keep up to date on the status of any
natural disaster, either before or after the event.
The
Declarant or Association will adopt the official warning
flag system as follows: One Red Flag -
Preliminary Alert First Phase (storm or hurricane watch) One
Red Flag with Black Center -Red I Phase (storm or hurricane
watch) Two Red Flags with Black Centers -Red II (Warning
Phase/Hurricane Warning) One Green Flag � Green Phase (all
clear). However, all Owners are ultimately responsible for
keeping informed on their own as to the status of any
impending natural disasters, having appropriate safety
devices and taking safety measures, and for procuring
devices to allow them to say informed even should electrical
power not be available.
(ii) Pre-season
Preparations
At the beginning of May each year an
Emergency Committee will be activated by its Chairperson of
the committee. This committee shall be comprised of three
persons (preferably), of which 1 person may be from
management.
(iii) Actions to be taken:
The
committee will ensure that all relevant equipment and items
required for the hurricane season is available. This
includes updates of this document, the identification of the
sources of hurricane tracking charts etc. The committee may
suggest changes to this declaration to the Association as
relates to emergency preparedness measures.
(iv) Safety Precautions
FIRE PREVENTION PLAN - The nearest fire stations are
located at Corozal Town and Orange Walk Town. Any fire
incident has to be dealt with locally. While water is
plentiful on the property its immediate availability may not
be possible. The Declarant or Association encourages the use
of nonflammable building material and it will be encouraged
within the project. For example the use of sheet roofing
instead of shingles will be encouraged. Additionally,
requirements under the ARB are designed to maximize fire
prevention and safety. However, Owners are encouraged to,
and ultimately responsible for, taking other fire safety
precautions, including but not limited to, fire
extinguishers, fire detectors, monitoring of electrical
outlets, proper use of flammable materials and devices, and
other such measures.
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 Articles and/or 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 XIX, or to
any other articles, sections or subsections which may affect
the enforcement or amendment of the Declaration.
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.
In the event that burning is
required, it shall only be undertaken at locations that
shall not present a danger to wildlife or forested areas and
where it shall not result in the pollution/contamination of
the surrounding environment, or where it shall not unduly
interfere with the right and enjoyment of other Owners, nor
detract from nor cause a nuisance to the community in
general. Burning shall be limited to dried leaves, brambles
etc. No burning of man-made materials such as plastics
shall be allowed.
All burning shall be done at
a minimum of 100 feet (where possible) from standing timber
or flammable growth and all fires shall be under constant
surveillance until they have burnt out or have been
extinguished. Individuals guarding fires shall be
instructed about the use of equipment and methods of
controlling fires.
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. Walkways,
footpaths and drainage structures shall be of adequate size,
dimensions and alignment to avoid water logging and
constructed in such a way so as to minimize potential
erosion. Household or building drainage pipes will not be
allowed to empty directly into any body water body nor the
Lagoon and any other water resource and surrounding
environs. These pipes shall lead to adequately designed
soak-a-way/leach fields.
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 rivers,
lagoons, 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 rivers, lagoons, or other bodies of water, may
construct or cause to be constructed a pier, dock or similar
structure unless approved in writing by the ARB, and
approved by the appropriate Belize governmental agency(ies).
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.
5.18 Clearing of Land and Effects on Wildlife.
In an effort to mitigate the negative impacts associated
with clearance of land (habitat loss and decrease in
wildlife), the following measures shall be taken: (i) For
residential parcels, only enough vegetation shall be cleared
for the laying of necessary infrastructure. Selective
clearing shall be planned around large existing trees for
landscaping of parcels. (ii) Native plants, along with
other horticultural plants will be utilized in landscaping
and replanting, particularly in areas devoid of trees,
wherever practical. (iii) All vegetation along the
perimeter of Progresso Lagoon and any water-body located on
or bordering the property shall be maintained in its natural
state. While reasonable trimming and landscaping is
permissible, no excavation, removal of, or killing of
vegetation or trees, shall be permitted. A sixty-six foot
(66) reserve shall be left between the edge of any permanent
water body and a Lot or Unit, for use as a public reserve.
No permanent structures will be allowed within this
reserve. (iv) Survey and development are to be done in
accordance with alterations and requirements as requested by
the Land Utilization Authority.
5.19 Cultural and Social Issues.
All natural features of national significance within the
property (i.e. caves/sinkhole, mounds, plaza groups) will
not be altered during or after construction of the entire
development. Should any find be made or uncovered during
construction, it shall be reported to the Institute of
Archaeology/Natural Institute of Culture and History, and
work or construction in the immediate area will stop until
the Declarant or Association presents to the DOE evidence
that approval has been granted by the Director of the
Institute of Archaeology to resume its activities. The
Declarant or Association shall make every effort to ensure
that all archaeological features are properly demarcated
with a declared boundary and buffer zone, so that they do
not form a part of the lots which is to be sold. These
areas shall be declared development free zones with the
intention that they can be future archaeological parks. As
long as there are qualified and available Belizean workers,
no labor force shall be imported. If this labor force is
not sufficient, then only resident aliens with a valid
Belize work permit shall be employed. All safety and health
measures shall be observed for all workers. Potable water,
rest-room facilities and adequate accommodations shall be
provided during the construction phase, if applicable.
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 at the request of the ARB 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 three organized areas of review
criteria, which the Association hereby delegates to the ARB
are as follows: (i) Survey, (ii) Site Plan, (iii)
Architectural Plans. All items submitted must be to the ARB,
must be organized accordingly, and must show compliance with
all review criteria for the Category submitted.
(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 Architectural Plans 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. 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 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. Construction of buildings shall be carried
out with the approval from the relevant agencies, including
the Housing and Planning Department. The design and
construction of buildings shall take into consideration
flooding and hurricanes.
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. Units may also be used as a bed and
breakfast where food and beverages are available for sale
and consumption by guests residing at the bed and
breakfasts. Parcels designated on the Master Plan as
commercial parcels may be used for residential and
commercial purposes. Some examples include: hotel/resort,
bed and breakfast, eco-tour operator, market, bar,
restaurant, rentals (kayak, canoe, sailboat, rowboat, etc.)
tours, t-shirt and novelty shop, contractor, tool rental,
etc.
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 site 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
decking, stair and platform areas and recreational
structures (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).
(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) Roof Framing
System.
(E) Electrical
Plan.
(F) Plumbing
Plan.
(G) 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
Utilities, Water, Waste and Lighting Guidelines
(a) Utilities
(1) Energy Plan
(i) The primary
source of energy shall be provided by means of Belize
Electricity Limited�s (BEL) main grid.
(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 devices 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.
(vii) If there is a
need for Back-up generators, proper measures shall be taken
in order to avoid fuel and oil spills, during operation and
maintenance, as well as to ensure that generators are as
sound proof as possible. If these occur accidentally, they
shall be cleaned up as early as possible and the matter
reported to the DOE as soon as possible.
(viii) The storage of
any fuel (butane, diesel, gasoline, etc) where applicable,
shall comply with the guidelines of the Department of the
Environment and the National Fire Service and must have
containment bonds of at least 110% of the total capacity of
the largest tank.
(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. Freshwater may be supplemented by means of
rainwater catchment. Individual property owners are
permitted to construct cisterns for the storage of
rainwater. Should this source be intended for consumption,
individual property owners are advised to chlorinate and/or
filter this rainwater before use.
(c) Waste
(1) Toilets.
Toilets must be low-consumption, low-volume or low-flush
water efficient toilets used in conjunction with approved
multi-chambered septic tanks. 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.
(3) All owners of
residential lots shall provide for proper sewage disposal.
Sewage disposal shall be by means of adequately sized, cast
concrete and steel floated multi-chambered septic tanks
equipped with adequately designed leach fields. Other
systems which may provide equal or greater level of
treatment and protection of the environment may be used with
the prior written consent of the Development of the
Environment.
(4) All owners of
commercial parcels shall provide for proper sewage
disposal. Sewage disposal shall be by means of small
packaged sewage treatment plants. Other systems which may
provide equal or greater level of treatment and protection
of the environment may be used with the prior written
consent of the Department of the Environment.
(5) Household
drainage/domestic wastewater pipes shall not be allowed to
empty directly into any water body or natural drainage area,
or surrounding environs. These pipes shall lead to separate
adequately designed and constructed leach fields.
(6) Regular
maintenance of all sewage and wastewater facilities shall be
performed to ensure proper functioning of the facilities for
environmental and other reasons. Special care must be taken
in order to avoid contamination of the surface and ground
water, and the surrounding environment. In order for this
to take place, the follow measures shall be taken:
(i) Property owners shall
not dispose of grease and oils into any drain, as this could
be a potential source of soil and water contamination.
Grease traps are to be installed on each kitchen sink.
(ii) Chemical wastes (such
as paints, thinners, acids, etc.) shall be disposed at a
designated site.
(iii) No domestic gray water
from any household drainage pipes shall be allowed to drain
into any public or natural drainage system. These pipes
shall lead to an appropriate treatment system prior to
discharge.
(7) Hazardous
waste, including batteries and used oil, shall be stored in
a special containment area for transportation to appropriate
sites designated by the Department.
(8) Residents are
encouraged to separate garbage into organic and inorganic
wastes.
(9) Residents are
encouraged to practice reuse, recycle and composting of
organic wastes.
(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 improvements,
including, for example, a structures, covered porches
and associated structures may not have a footprint that
exceeds twenty-five percent (25%) of the gross parcel square
footage (e.g. if the parcel size is 75' X 135' = 10,125
square feet, the footprint of the structures, covered
porches, and associated structures may not exceed 2,531.25
square feet). Square footage measurements shall include the
exterior walls. Recreational structures such as swimming
pools, decking, tennis, basketball and volley courts may
have an additional footprint of 15% plus any unused portion
of the original 25% used for structural improvements.
i.e. structure improvements
25%, recreational improvements may =15%
i.e. structure improvements
20%, recreational improvements may =20%
i.e. structure improvements
15%, recreational improvements may = 25%
(2) Commercial
Parcels. Construction of improvements,
including, for example, structures, porches and associated
structures may not have a footprint that exceeds fifty
percent (50%) of the gross parcel square footage (e.g. if
the parcel size is 75' X 135' = 10,125 square feet, the
footprint of the structures, covered porches and associated
structures may not exceed 5,062.50 square feet). Square
footage measurements shall include the exterior walls.
Recreational structures such as swimming pools, decking,
tennis, basketball and volley courts may have an additional
footprint of 15% plus any unused portion of the original 50%
used for structural improvements.
i.e. structure improvements
50%, recreational improvements may =15%
i.e. structure improvements
40%, recreational improvements may =25%
i.e. structure improvements
35%, recreational improvements may = 30%
(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 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, lagoons,
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 body of
water or property fronting such body 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 previously approved.
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 Articles and/or 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 Articles
and/or 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 Articles and/or 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 the Articles and/or
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
Articles and/or 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 Articles and/or 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 Articles and/or 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 Articles and/or 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. 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 within 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 Articles
and/or 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. The
Board may obtain insurance coverage which excludes any of
the above provisions only upon a showing that commercially
reasonable insurance which contains all of the provisions
above is unavailable, and/or constitutes an unreasonable
additional expense.
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 Articles and/or
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
Articles and/or 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 Articles and/or
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 Articles
and/or 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 Articles
and/or Memorandum of Association, before levying any such
Specific Assessment under this Paragraph 10.7(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, excluding
those Units owned by Declarant, to secure the payment of
delinquent Assessments, as well as the interest, the late
charges, and any costs incurred in the collection of
delinquent assessments. 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 10.10
(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. 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
changes in uses or changes to density of property or changes
to any Master Plan to any lands owned by the Declarant, and
with respect to lands that may lie outside the Person or
Entitie�s Neighborhood or phase.
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 of Declarant�s 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 Articles and/or
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 Law 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, 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 this
Article: (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 Articles and/or 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, approval requirements which
may otherwise appear in the Declaration 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 Articles and/or 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 any other Community Documents, including
the Memorandum of Association, or the Articles of
Association, the provisions of this Declaration shall
control. Furthermore, the provisions of the Memorandum of
Association shall control over those conflicting provisions
of the Articles of Association, followed by the Rules &
Regulations, and then any resolutions which may be
promulgated.
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, FL 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
Articles and/or 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.]