...a development company
State of Florida
County of Walton
DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS
FOR BOTANY BAYOU SUBDIVISION
KNOW ALL MIEN BY THESE PRESENTS, that INDIAN CREEK OF DESTIN, INC.,
a Florida corporation, whose post office address is 130 South
Geronimo Street, Destin, FL 32550, (hereinafter referred to
as Declarant as owner of certain lands in Walton County,
Florida, being developed for residential purposes, said lands
being as hereinafter described, hereby declares and files
herewith, the following covenants and restrictions running with the
land subjected hereto and conditions of use and occupancy thereof,
which covenants, restrictions and conditions are filed
pursuant to a general plan of development making the covenants,
restrictions and conditions applicable with uniformity to the land
subjected hereto.
WHEREAS, the purpose of these covenants, conditions and restrictions, which
shall apply only to the property hereinafter described, is to enable and aid
the establishment and maintenance of an exclusive residential community of the
highest quality for the maximum benefit and enjoyment of the owners of property
therein and their guests; said residential community to be named BOTANY BAYOU
SUBDIVISION; and
WHEREAS, Declarant desires to insure the attractiveness of the various common
areas, structures and facilities within BOTANY BAYOU SUBDIVISION and to prevent
any future impairment thereof, to prevent nuisances, to preserve, protect
and enhance the values and amenities of the said property and to provide
for the maintenance of common areas, structures and facilities; and
WHEREAS, to such end, Declarant desires to subject the real property
hereinafter described to the covenants, conditions, restrictions, easements,
charges and liens, hereinafter set forth, all of which are for the benefit
of said real property and each owner thereof, and
WHEREAS, Declarant has deemed it desirable to provide for the preservation,
protection and enhancement of the values and common areas in BOTANY BAYOU
SUBDIVISION and to protect the owners'enjoyment of the specific rights,
privileges and easements hereinafter set forth by creating an organization
to be assigned the powers and responsibilities of administering and enforcing
the covenants, conditions, restrictions, easements, charges and liens and
collecting and disbursing the assessments and charges hereinafter created; and
WHEREAS, Declarant hereby undertakes to incorporate such organization under
the laws of the State of Florida, as a non-profit corporation to be named
BOTANY BAYOU HOMEOWNERS'ASSOCIATION INC., for the aforesaid purposes.
NOW, THEREFORE, Declarant hereby declares that the real property known
as Lots 1-71 Botany Bayou Subdivision, according to the plat of such Subdivision
recorded in Plat Book 14, Page 82 of the public records of Walton County,
is and shall be held, transferred, sold, conveyed and occupied subject
to the covenants, conditions, restrictions, easements, charges and liens
(all of which may sometimes be herein called covenants and restrictions)
hereinafter set forth, which covenants and restrictions are for the purpose
of protecting the value and desirability of, and which shall run with, the
real property, and which shall be binding on all parties having any right,
title or interest in any of the properties subject to this Declaration or
any part thereof, their heirs, successors and assigns, and shall inure to
the benefit of each owner thereof.
ARTICLE I - DEFINITIONS
1. "Association" shall mean and refer to Botany Bayou Homeowner's
Association, Inc. its successors and assigns.
2. "Property" shall mean and refer to that certain real property
described in the Declaration of Covenants, Conditions and Restrictions
attached hereto and such additions thereto as may hereafter be brought
within the jurisdiction of the association.
3. "Common Area" shall mean all real property owned by the association
for the common use and enjoyment of the owners in Botany Bayou Homeowner's
Association, Inc., a planned unit development.
4. "Lot" shall mean and refer to any numbered lot shown upon any recorded
subdivision map of the property with the exception of the common area.
5. "Dwelling Structure" shall mean ownership of the dwelling
constructed on a lot, together with a fee simple interest in
the lots upon which the dwelling stands.
6. "Common Expense" shall mean all expenses incurred by the
association and charged to the owners of all lots on common
basis, including but not limited to , supplies, materials,
parts, services, utilities, maintenance, repairs, replacements,
landscaping, insurance and ad valorem taxes on common areas and
other expenses of the association incurred on behalf of all
members (and distinguished from individual mortgage payments,
real estate taxes, and individual telephone, electricity
and other individual or separate basis rather than on a common basis).
7. "Owner" shall mean and refer to the record owner, whether
one or more persons or entities, of the fee simple title to
any lot which is a part of the properties.
8. "Declarant" means Indian Creek of Destin, Inc. a Florida corporation, it's
successors and assigns. Declarant also may be an Owner. The various rights of
Declarant under this Declaration may be separated and assigned to different
parties and, if so assigned, each assignee will be considered "Declarant" as
to the specific rights so assigned. Declarant may collaterally assign their
rights as Declarant by mortgage or other instrument, and such assignees may
elect to either exercise such rights if such assignees succeed to Declarant's
interest in Botany Bayou Subdivision or any portion thereof.
9. "Declaration" shall mean and refer to the Declaration of Covenants,
Conditions and Restrictions applicable to Botany Bayou Subdivision and
all supplements and amendments to this Declaration recorded in the Office
of the Clerk of Circuit Court, Walton County, Florida.
10. "Member" shall mean and refer to those persons entitled to membership as
provided in the Declaration.
11. "Drainage System" means all drainage rights of way, ponds, water management
tracts, drainage facilities, conservation area, and buffer zones, as shown on
the Plat. The "Drainage System" also means a system that is designed and constructed
or implemented to control discharges necessitated by rainfall events, incorporating
methods to (1) collect, convey, store, absorb, inhibit, treat, use, or reuse water;
or (ii) prevent or reduce flooding, over drainage, environmental degradation, and
water pollution, or otherwise affect the quantity and quality of discharges from the
system as permitted pursuant to Chapters 4OC-4, 4OC-40 or 4OC-42 of the Florida
Administrative Code.
12. "Articles of Incorporation" means the Articles as filed with the Department
of State to incorporate the Homeowner's Association, a copy of which is attached
hereto as Exhibit "A".
13. "Bylaws" means the Bylaws of the Association governing the Homeowner's
Association, a copy of which is attached hereto as Exhibit "B".
14. "Common Property" means those tracts of land that are (i) deeded to the
Association and designated in the deed as Common Property, or (ii) labeled as
a Common Area, on the Plat. The term "Common Property" does not mean any area
that is (i) dedicated in the plat to the county or municipal government or other
party other than the Association, or (ii) should be or is dedicated by
the Association.
ARTICLE II - GENERAL COVENANTS AND RESTRICTIONS
1. All lots above described in the preambles hereto shall be known, described,
used and occupied as residential lots. The term "residential" as used herein
shall be held and construed to exclude hospitals, nurseries, duplex houses and
apartments houses and exclude any development, operations or drilling for oil,
gas, or other minerals, or any refining or quarrying or mining or placing or
maintaining on the premises of any tanks, well, shafts, mineral excavations,
derricks or structures of any like incident to any such oil, gas or other
mineral operations; and any such usage of this property is hereby expressly
prohibited. Nothwithstanding the provisions of this paragraph, dwelling
constructed on the lots to which these covenants, restrictions and reservations
are applicable may, with the written permission of the developer, be temporarily
used as model homes. The use of dwellings for such purpose shall only be for
such period of time and only upon such conditions as developer may in its sole
discretion specify.
2. Only one residence, and where developer deems appropriate
one guest house, shall be constructed on each subdivision
lot; however, this shall not prohibit construction of
a residence on a portion of two or more.
3. The word "house", or "residence", or "building", or
"structure" or "dwelling" as used herein shall include
galleries, porches, porte cocheres, projections and
every other permanent part of such improvements, except roofs.
4. Unless the developer or its designated representative
shall have expressly consented in writing to lesser
minimum square footage, no dwelling or residence
shall be permitted upon any homesite subject to these
covenants, restrictions and reservations which does
not have a total square footage, excluding a carport,
garage, porch, utility and storage area, of the following:
Lot Description/Minimum Square Footages for Single Story
Dwelling/Minimum Square Footages for One & One-Half & Two
Story Dwellings.
For all interior lots, minimum square footage for one
and one-half or two story dwellings shall be 1900
square feet, with not less 1400 square feet existing
on the ground floor. All waterfront lots shall be
one and one-half or two story dwellings and shall
have a minimum square footage requirement of
3200 square feet with not less than 1800 square
feet existing on the ground floor.
The developer or its duly designated representative may allow lots 3, 4, 5, 17,
20, 21, 22, 23, 24, 27, 30, 31, 53, & 70 to have a front load garage. All other
homes will require a side entrance garage.
No dwelling or residence having more than two stories shall
be constructed on a homesite unless the developer or its
duly designated representative shall have first consented
in writing to the construction of such residence. In the
event of construction of a dwelling or residence having
more than two stories, the minimum square footage requirement
shall be no less than those requirements specified for
construction of a one and one-half or two story residence
on such homesite and such square footage minimums may be
increased by the developer or its duly designated
representative prior to granting its written consent
to the construction of such a dwelling or residence.
Lots 39 & 40 will be allowed a detached guesthouse.
These structures will be one story no larger than 680 sq. ft.
They will be allowed a one car garage or carport facing east.
They will be heavily landscaped and the plans must be drawn by a Florida
licensed architect and approved exclusively by the developer.
5. No out buildings, detached garages or detached servants' houses or other
detached buildings shall be constructed on any lot in the subdivision unless
the developer or its duly designated representative shall have expressly
consented to such construction in writing.
6. No building materials or temporary building of any kind or
character shall be placed or stored on the property until the
owner is ready to commence improvements, and then such material
or temporary building shall be place within the property line of
the lot or parcel of land upon which the improvements are to be
erected and shall not be placed in the streets or between the curb
and the property line. Any such temporary building or structure
buildings and unused materials shall be removed immediately upon
completion of constructed or within one year after such material or
temporary building was placed thereon, whichever is sooner.
7. No noxious or offensive trade or activity shall be carried on
upon any homesite nor shall anything be done thereon which may be
or become an annoyance or nuisance to the neighborhood.
8. Except upon having first obtained the written consent of the
developer or its duly designated representative, no building or
residence shall be located on a homesite in the subdivision which
would be nearer to the front, side, rear or other lot lines than
the distances hereinafter specified as minimum set-back distances
from the hereinafter specified lot lines:
Lot Designation for: Front Set-Back; Rear Set-Back From the
DEP Jurisdictional Line; Side Set-Back.
LOT FSB RSB SSB
1-8 20' 20' 7.5'
9-11 25' 20' 7.5'
12-27 20' 20' 7.5'
28 60' 65' 7.5'
29 60' 55' 7.5'
30 50' 45' 7.5'
31-35 60' 60' 7.5'
36-38 50' 50' 7.5'
39 40' 45' 7.5'
40 40' 40' 7.5'
41-43 40' 25' 7.5'
44-52 25' 25' 7.5'
53 25' 20' 7.5'
54-69 20' 15' 7.5'
70-71 25' 40' 7.5'
Developer reserves the right to modify or grand variance to the
above-stated minimum setback requirements at any time and for
any reason. All such modifications or granting of variances must
be made in writing and executed by the developer or its duly
designated representative and recorded in the public records
of Walton County.
9. No residence, building, swimming pool, boathouse, dock, jetty,
bulkhead or other structure shall be erected, placed or altered
on any building lot in the subdivision until the plans, material
specifications and plot plan showing the location and design of
such buildings or structures have been approved in writing by the
developer or its designated representative as to conformity and
harmony of external design with existing structures in the subdivision
and as to location of the buildings or other structures with respect
to topography and finished ground elevation. Neither developer nor
its designated representative shall receive any compensation for
services performed pursuant to these covenants, restrictions and
reservations.
10. Notwithstanding contained herein to the contrary, all owners must
build a dwelling on the lot they purchase within five (5) years of the
date of closing of said lot, and all building shall be completed and
the final Certificate of Occupancy shall be issued within six (6) of
the date of closing. In the event the dwelling is not constructed or
completed within the times prescribed above, seller shall have the
right to purchase said property back from the owner at the price for
which it was originally sold to owner, including the cost of any
improvements placed thereon.
11. Landscaping - it is prohibited to cut down any tree in the
front yard with a trunk of 12 inches or more in diameter unless
closer than 10' from an owner's foundation. Owners must keep or
plant four (4) trees (indigenous to our area) in their front or
side yards. Owners will be highly encouraged to keep any natural
areas. No magnolia, hickory, oak or long leaf pine trees are to
be removed without the consent of the Developer or his designated
representative. A landscaping plan that includes these
requirements must be submitted to the developer or its designated
representative for approval at the same time as the house plan
is submitted and must have been approved in writing by the
developer to its designated representative as to conformity
and harmony of design with existing structures in the subdivision
and as to location of the landscaping with respect to topography
and finished ground elevation.
12. No garbage, trash, ashes, refuse, junk or other waste,
inoperative vehicles, travel trailers or house trailers shall
be stored, kept, thrown or dumped on any lot or street in the
subdivision or permitted to remain on any such place. No
recreational vehicles of a length greater than 20 feet and no
boats of a length greater than 20 feet shall be stored or kept
on any lot within the subdivision unless the same shall be kept
and stored in a fully enclosed garage, except for periods of two
weeks or less when the boat may be kept in the back yard for
purpose of repair. Regardless of its size, no boat, boat tower,
or boat cabin, or any part of a boat, yacht or any other water
craft shall be visible from the street. No boats of any size
shall be kept in the front yard of any lot within the subdivision.
All garbage shall be kept in sanitary containers.
13. No animals, livestock or Poultry of any kind shall be raised,
bred, kept, staked or pastured on any lot, excepting dogs, cats,
or other household pets may be kept, provided they are not kept,
bred or maintained for commercial purpose.
14. Fences, walls and hedges are permitted along, but inside
the property lines adjoining streets, but not closer to the
front or side that the applicable side yard or set back line
for the house or residence, other than those installed by the
developer. No fence, wall or hedge shall be placed on any portion
of any homesite at a height more than six (6) feet from the
ground nor shall any fence, wall or hedge extend closer than
thirty (30) feet from the water's edge, except in the case of
a swimming pool where county ordinances may require pool areas
to be fenced. Should any fence, hedge, shrub, tree, flower or
other planting be so placed, or afterwards grow so as to
encroach upon the adjoining property, such encroachment shall
be removed upon the request of the owner of the adjoining
property or upon the request of the developer. Should any
encroachment be upon a right-of-way, street, alley or other
easement, it shall be removed promptly upon request of the
developer or its duly designated representative, and such
encroachment shall be wholly at the risk of the owner of the
encroaching object. Notwithstanding the foregoing, no fence
or wall may be constructed until written approval is obtained
from the developer or its duly designated representative as
to location, design, and material to be used in the construction
of said fence or wall. All driveways must be of concrete or
brick pavers except on waterfront lots where asphalt may be
acceptable.
15. No signs of any kind shall be displayed to the public view
on any residential lot, except one sign of not more than five
square feet in said area advertising the property for sale or
rent or signs used by the builder to advertise the property
during the construction or sale of such property.
16. No children's toys, tricycles, bicycles, or other unsightly
material will be permitted to remain or be regularly left on
the lot forward of the building setback line. The developer
retains the right, after reasonable prior notice to the owner,
to correct deficiencies in this or any other paragraph and to
bill the owner for the cost of the corrections.
17. All boat docks will be subject to building permits by
Walton County and must have approval by the developer as
to size, location and design.
18. Developer or its duly designated representative reserves
the right to hereinafter modify, amend or grant variances to
any of the foregoing covenants and restrictions which in the
developer's sole discretion such modification, amendment or
variance is deemed proper. Developer or its duly designated
representative may also make other restrictions applicable
to each homesite by appropriate provision in the contract
for deed or in any deed, without otherwise modifying the
general plan herein outlined, and such other restrictions
shall inure to the benefit of the owners of homesites in the
subdivision and shall bind the grantees and their respective
heirs, successors or transferees in the same manner as though
they had been expressed herein.
19. Developer reserves a perpetual easement in Botany Bayou,
in, on, over and under all drainage and utility easements as
reflected on the plat of Botany Bayou Subdivision, as recorded
in the Public Records of Walton county, Florida, and additionally
reserves unto itself a perpetual easement for drainage and
utility purposes in, on, over and under a strip of land five
feet in width along the side and rear lines and 10' along the
front of each lot subject to these covenants, restrictions and
reservations with full right of entry by it or its licensees for
the purpose of establishing, constructing and maintaining any
utility, with the right to maintain conduits and wires for telephone,
electric power and other purposes and to lay, install and maintain
facilities for sewage, water, gas, storm drainage and other
utilities therein.
20. Violation of any restriction or covenant shall give the
developer or its duly designated representative the right to
enter upon the property, after proper notice, where such violation
exists and summarily abate or remove the same at the expense of
the owner, and such entry and abatement or removal shall not be
deemed as trespass.
21. These covenants and restrictions are to run with the land,
and shall be part of all deed and contracts or conveyances of
any and all lots in this subdivision and shall be binding on
all parties and all persons claiming under them until January 1, 2020
at which time said covenants, restrictions and reservations shall
be automatically renewed for additional successive periods of ten
years, unless by written and recorded agreement of a majority of
the record owners on January 1, 2020 and each successive ten-year
anniversary date thereafter, the decision shall be made to terminate
these covenants and restrictions.
22. If any owner, tenant or occupant of this subdivision shall
violate or attempt to violate any of these covenants, restrictions
and reservations while in force and effect, it shall be lawful
for the developer, its duly designated representative or any
other person or persons having any ownership interest in any
other lot in the subdivision to prosecute any proceeding at
law or in equity against any person violating or attempting to
violate such covenants, restrictions and reservations and either
to prevent them from doing so or to recover damages for such
violation. In the event the developer or its duly designated
representative shall commence any proceeding to enforce these
restrictions, then in such event the party against whom such
action has been brought or defended shall be responsible to pay
the developer a reasonable attorney's fee for the bringing or
defending of such action.
23. In no event and under no circumstances shall a violation
of any covenant or restriction or reservation herein contained
work a forfeiture or reverter of title. Invalidation of any of
these covenants, restrictions and reservations by judgment or
court order shall in no way affect any other provision, which
shall remain in full force and effect.
ARTICLE III - HOMEOWNER'S ASSOCIATION
1. Each owner of a lot to which these covenants, restrictions
and reservations are applicable shall be required to participate
as a member of Botany Bayou Owner's Association, Inc. a Florida
corporation not for profit, which corporation has been organized
by the developer to provide a means by which the owners of lots
within the present subdivision and subsequent additions to it may
collectively share the expense of maintenance of the common areas
and additional lighting and security services at a later date
if deemed needed.
2. Developer hereby covenants that each owner of a lot, by
acceptance of a deed therefor, whether or not it shall be so
expressed in such deed, is deemed to covenant and agree to pay
the Association an annual assessment. Such assessments shall be
established and collected as hereinafter provided.
3. The assessments, charges and liens created under this Article
shall not apply to the Common Areas or any Lot owned by the
Declarant. In addition, all real property, if any, dedicated
to and accepted by a local public authority or governmental
institution or entity shall likewise be exempt therefrom.
4. All such assessments, together with interest thereon and
costs of collection thereof as hereinafter provided shall be
a charge on the land and shall be a continuing lien upon the
lot against which each assessment is made. Each such assessment,
together with interest thereon and costs of collection thereof,
when delinquent, shall also be the personal obligation of the
person or entity who was the owner of such lot at the time
when the assessment fell due.
5. The annual assessment levied by the Association shall be used
exclusively for the improvement, maintenance and operation of any
common area owned by the Association. Each lot, which has been
conveyed to an owner, shall be assessed at a uniform rate. For the
purpose of assessment, the term"owner"shall exclude the Developer.
Notwithstanding any provisions herein to the contrary, the Association
shall not assess any developer-owned lots or lots owned by
the developer's lenders.
6. By a majority vote of the Board of Directors, the Association
shall fix the annual assessment upon the basis provided herein.
The annual assessments shall be sufficient to meet the obligations
imposed upon the Association by these covenants and restrictions.
Such assessments shall become due annually beginning January 1, 2002,
and purchasers of lots subsequent to said date shall be responsible
for their prorata share of the annual assessment in effect. The Board
of Directors may provide for collection of assessments annually or in
monthly, quarterly or semi-annual installments, provided however,
that the entire balance of such assessment may be accelerated at
the option of the Board of Directors and be declared due and
payable in full.
7. At the closing and transfer of title to the owner, such owner,
shall contribute an amount equal to $100 to the Association. This
contribution shall be used by the Association for the purpose of
the initial and recurring capital expenses of the Association and
for providing initial working capital for the Association. Such
contribution shall not be considered as a pre-payment of any
future assessments.
8. Any assessment not paid within fifteen (15) days after the
due date shall bear a late fee of $25 further, any assessment
not paid within thirty (30) days after the due date shall bear
interest from the due date at a percentage rate equal to the
highest rate allowed by law and shall, together, with such
interest thereon and cost of collection thereof (including
reasonable attorney's fees, become a lien on such lot. The
Association may bring an action at law against the owner
personally obligated to pay the same or foreclose the lien
against the lot and interest, costs and reasonable attorney's
fees; fees of any such action will be added to the amount of
such assessment. Each such owner, by his acceptance of title
to the lot, hereby expressly vests in the Association the right
and power to bring all actions against such owner personally
for the collection of such assessments as a debt and to enforce
the aforesaid by all methods available for the enforcement of
such liens, including foreclosures by an action brought in the
name of the Association in a like manner as a mortgage lien on
real property, and such owner hereby expressly grants to the
Association the power of sale in connection with such lien.
The Association, acting on behalf of the owners, shall have
the power to bid for an interest foreclosed at such foreclosure
sale and to acquire and hold, lease, mortgage and convey the
same. No owner may waive or otherwise escape liability for the
assessments provided for herein by non-use of the Common Area
or abandonment of his/her lot.
9. The lien of the assessments provided for herein shall be
inferior and subordinate to the lien of any bank, savings
and loan association or other institutional Mortgage now
or hereafter placed upon the lot subject to assessments.
Sale or transfer of any lot shall not affect the assessment
lien; however, the sale or transfer of any lot pursuant to
foreclosure of such a Mortgage may extinguish the lien of such
assessments as to payments which come due prior to such sale
or transfer. No sale or transfer shall relieve such lot from
liability for any assessments thereafter becoming due or
from the lien thereof
10. The Treasurer of the Association, upon demand of any
owner liable for an assessment, shall furnish to such owner
a certificate in writing, signed by a Director, setting
forth whether such assessment has been paid. Such
certificate, when co-signed by the Secretary of the
Association, shall be conclusive evidence of payment of
any assessment therein stated to have been paid.
11. The fiscal year of the Association shall consist of
the twelve-month period commencing on January I of each
year and terminating December 31 of that year.
12. On or before December I st of each year, the Board of
Directors shall adopt a budget for the coming year
containing an estimate of the total amount which it
considers necessary to pay the cost of all expenses
to be incurred by the Association to carry out the
responsibilities and obligations of the Association
hereunder including, without limitation, the cost
of wages, materials, insurance premiums, services,
supplies and other expenses for rendering to the owners
of all services required hereunder. Such budget shall
also include such reasonable amounts, as the Board of
Directors considers necessary to provide working capital
for the Association and to provide for a general operating
reserve and reserves for contingencies and replacements.
The Board of Directors shall send to each owner a copy
of the budget, in a reasonably itemized form that sets
forth the amount of the assessments payable by each owner,
on or before December 15 preceding the fiscal year to
which the budget applies. Such budget shall constitute
the basis for determining each owner's assessment as
hereinbefore provided.
13. The failure or delay of the Board of Directors to
prepare or adopt the annual budget or adjusted budget
for any fiscal year shall not constitute a waiver or
release in any manner of an owner's obligation to pay
their assessments as herein provided, whenever the
same shall be determined, and in the absence of any
annual budget or adjusted budget, each owner shall
continue to pay the assessment at the then existing
rate established for the previous fiscal period in
the manner such payment was previously due until
notified otherwise.
14. Except as otherwise provided herein, all sums
collected by the Board of Directors with respect
to assessments against the owners may be
commingled in a single fund.
ARTICLE IV - COMMON PROPERTY
1. Ownership. Ownership of Common Property will be owned
by the Association for the benefit of all owners, and
the Association when necessary may improve, convey,
or lease the Common Property.
2. Conveyance. The Association is authorized to buy or
lease real or personal property to be added to the
Common Property. The Association may (with the consent
of Declarant) sell or lease any part of the Common
Property, however, membership approval is not needed
for the Board to sell property or to grant easements
on real property.
3. Maintenance; Management; Contracts, Association Responsibility.
The Association will be responsible for the management,
control, maintenance, repair, replacement and improvement
of the Common Property and must keep the same attractive,
clean, and in good repair in accordance with his Declaration
and applicable governmental regulations. This shall include,
but not be limited to, water and sewer lines, lift stations, and roads.
4. Management Agreements. The Association may contract the
Declarant or any other party for the performance of all or
any portion of the management of the Association and the
Association's maintenance and repair obligations.
Management costs will be included within the Assessments.
The property manager for the Association, its employees,
officers, contractors, and assigns will have the right to
use the Common Property without liability for Assessments
or other charges, as more particularly specified in the
management agreement.
5. Capital Improvements. The Association may make
capital improvements to the Common Property and may
modify the uses of the Common Property.
6. Damage or Destruction of Common Property by Owner.
If any Owner or any guest, customer, tenant, licensee,
agent employee or family member damages any of the
Common Property as a result of negligence or misuse,
the Owner hereby authorizes the Association to repair
the damage. The cost of repair will be the responsibility
of that Owner and will become an Individual Lot Assessment
payable by the responsible Owner.
7. Compliance with Laws. Lots and Common Property may be
used and must be maintained in accordance with all applicable
laws, ordinances, and regulations, including, without
limitations, all regulations and requirements of the Water
management District and the Florida Department
of Environmental Protection.
8. Rules for Use Of Common Property. Members will have
the right to use the Common Property only in accordance
with the terms of the Rules initially made by Declarant
and revised from time to time by the Association.
The Rules may restrict the time of use, provide limitations
on use of the common Property by a Member's guests and
lessees, and provided such fee or charge is uniformly
assessed. No Member will be entitled to any rebate or
reduction in such Member's Assessments on account of any
such restrictions imposed on the Member's use of the
Common Property. The Rules will be kept at the offices
of the Association and copies will be made available
without charge to any Member requesting the same.
9. Use of Common Area Dock bv Members. A Member may
use the Common Area Dock for his personal use, including
docking, mooring, or otherwise attaching a personal
watercraft to said common dock for a length of time
not to exceed 48 consecutive hours. Total usage per
week shall not exceed 72 hours by any one Member.
10. Drainage System Located in Common Property. The Association
will be responsible for the maintenance, operation, and
repair of such portion of the Drainage System as is located
on Common Property. Maintenance means the exercise of
practices that tallow the system to provide drainage, water
storage, conveyance, or the stormwater management
capabilities as permitted by the Water Management District
and the Florida Department of Environmental Protection.
Any repair or reconstruction of the Drainage System shall
be as permitted or, if modified, as approved by the Water
Management District and the Florida Department of
Environmental Protection.
11. Taxes. In the event any common area owned by the
Association is taxed separately from the lots deeded
to owners, the Association shall include such taxes as
part of the general assessment. In the event the common
areas owned by the Association are taxed as a component
of the value of the lot owned by each owner, it shall be
the obligation of each owner to promptly pay such taxes
prior to them becoming a lien on the property.
12. Use and Benefit of Common Property. The Common Area shall be held by the
Association for the use and benefit of the Members, their tenants and invitees.
Every owner of the Lot will have a right and easement of enjoyment in and to the
common area said right of easement shall specifically include but not be
limited to the right of ingress and egress over the common areas, and this
right will be appurtenant to and will pass with the title to such Lot,
subject to the right of the Association to dedicate or transfer all or
any part of the common area to any municipality, public agency, authority,
or utility for the purposes in subject to the conditions they may be agreed
upon by the members. In no event, will the dedication or transfer of
any or all of the common areas prohibit the Lot owners easement of ingress
and egress over the common areas.
ARTICLE V - EASEMENTS
1. Blanket Easement for Utilities. There is hereby created a blanket easement for the
purpose of installing and maintaining utilities upon, across, over and under all
areas for ingress, egress, installation, replacing, repairing and maintaining all
utilities including, but not limited to water, sewers, telephones, electricity,
and cable television system. By virtue of this easement, it shall be expressly
permissible for any company providing electrical, water, sewer, cable television,
and /or telephone service to install, erect and maintain all necessary lines, pipes
and conduit underground and other necessary equipment at or below grade on the Common
Area. An easement is further granted to all police, fire protection, ambulance and all
similar persons, companies or agencies performing emergency service to enter upon the
Common Areas and Lots in the performance of their duties. Further, an easement is hereby
granted to the Association, its officers, agents, employees, and to any management company
selected by the Association to enter in or to cross over all property subject to this
Declaration, including without limitation, the Common Area and Lots, and to enter any
other place within Botany Bayou Subdivision during reasonable hours and upon request,
except in an emergency or when such property is not occupied, to inspect and to perform
the duties of maintenance and repair of the Common Area as provided herein.
Notwithstanding anything to the contrary contained in this paragraph, no sewers,
electrical lines, water lines, or other utilities may be installed or relocated on
property subject to this Declaration except as initially programmed and approved by
the Declarant or thereafter approved by Declarant or the Asssociation's Architectural
Review Committee. Should any utility furnishing a service covered by the general easement
herein provided request a specific easement to be made with a separate recordable document,
Declarant shall have the right to grant such easement with respect to any real property
subject to this Declaration without conflicting with the terms hereof. The easements provided
in this Article IV shall in no way affect any other recorded easement on said premises.
2. Easements Reserved for Certain Purposes. Easements and rights-of-way are hereby
expressly reserved to Declarant, its successors and assigns, in, on, over, and under
the Common area for the following purposes:
(a) for the erection, installation, construction, maintenance, repair and restoration
or replacement of (i) wires, lines and conduits, and the necessary or proper attachments
in connection with the transmission of electricity, telephone, television cables and
other utilities and other similar facilities and (ii) storm-water drains, land drains,
public and private sewers, pipe lines for supplying water and heat, and for any other
public or quasi-public utility facilities, service or function, whether above ground
or underground (iii) for maintenance of any retaining wall located on a common area
or individual lot;
(b) for slope control purposes, including the right to grade and plant slopes and to
prevent the doing of any activity which might interfere with slope ratios approved by
Declarant, its successors and assigns, or which might create erosion or sliding problems,
or change, obstruct or retard drainage flow;
(c) for the construction, installation, maintenance, repair and restoration or
replacement of streets, rights-of-way, drainage areas, recreation areas and improvements,
open space or other Common Area, or for security or other purposes for which Association
is primarily, secondarily or contingently responsible or authorized as expressly or
impliedly provided in this Declaration; and
(d) for pedestrian access through and across the streets and road right-of-way within
Botany Bayou Subdivision.
(e) for pedestrian and vehicular traffic over and across all streets and road rights-of-way
constructed in Botany Bayou Subdivision.
Declarant and its respective agents, successors and assigns shall have the right to
enter upon all parts of the easement area for any of the purposes for which said
easements and rights-of-way are reserved.
Declarant shall also have the right, at the time of or after grading any street or
any part thereof, to enter upon any abutting Common Areas and grade the portion of
such Common Areas adjacent to such street to a slope generally appropriate to the
conditions of the land and its development, but there shall be no obligation on
Declarent to do such grading or to maintain the slope.
3. Benefit. The easements reserved by this Declaration shall be for the benefit of
Declarant, the Association, the Members and their respective tenants and invitees.
There further exists appurtenant easements of access to all private streets within
the subdivision to Walton County or any of its franchisees for the use of county
personnel and equipment on county business.
IN WITNESS WHEREOF, the owner has hereunto caused its hand and seal to be affixed
this ________________ day of July, 2001.
Signed in the presence of: INDIAN CREEK OF DESTIN, INC., a Florida Corporation
_____________________ By: __________________________
John A. King, Sr., President
______________________
State of Florida
County of Walton
I HEREBY CERTIFY that on this day, before me, an officer duly authorized
in the State and County aforesaid to take acknowledgments, personally appeared,
JOHN A. KING, SR., President of INDIAN CREEK OF DESTIN, INC., a Florida
corporation, who is personally known to me or who has produced________________ for
identification, and who (please circle) did not take an oath, and acknowledged to
me to be the person described in and who executed the foregoing instrument and he
acknowledged before me that he executed the same for the purposes therein
expressed, on behalf of said corporation.
____________ WITNESS my hand and official seal in the County and State last aforesaid
this ___________of July 2001.
________________________
Notary Public
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Indian Creek of Destin, Inc.
John A. King, Sr., President P.O. Box 6773 Destin, Florida 32550 Office: 850-837-6777 Fax: 850-837-6707 E-mail inquiries to info@destindevelopment.com |
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