§ 110-154. Declaration.

A declaration, or an amendment thereto, which, at a minimum, sets forth the responsibilities and obligations for the maintenance, repair and replacement of the community subdivision infrastructure, common areas and private amenities and such other matters as provided in this division shall be required and submitted to the city prior to final plat approval and, in the case of a gated community, prior to the closure or operation of the gates. The declaration, or amendment thereto, shall be recorded simultaneously with the subdivision plat. The terms of the declaration, or amendment thereto, shall be to the city's satisfaction, legally sufficient and enforceable to, at a minimum, accomplish, provide or otherwise ensure or disclose the provisions of this division. An existing executed and recorded declaration for a subdivision shall be amended, in a form acceptable to the city attorney, to come into compliance with the current version of this division as condition to a final plat approval covering any phase of a subdivision to be platted after the execution and recording of the original declaration, so that an amended declaration incorporating the current requirements of this division governs previously platted phases, current and future phases. Notwithstanding the foregoing, the exclusion of said provisions within the declaration, or amendment thereto, shall not operate as a condition precedent to city's ability to enforce the requirements of this chapter. Further, nothing in this section shall preclude the declaration, or amendment thereto, from addressing other matters so long as the substance of each part of the declaration, or amendment thereto, is not inconsistent with the requirements of this chapter or any other applicable code reference or state law. The declaration, or amendment thereto, shall, as applicable:

(1)

Establish the point at which the developer must turn over control of the HOA consistent with definition of same provided in section 110-56.

(2)

Provide for the preparation of an initial community subdivision infrastructure report and compliance with the provisions of section 110-155, including developer's requirements prior to turnover.

(3)

Provide for the preparation of a subsequent community subdivision infrastructure report and compliance with the provisions of section 110-156.

(4)

Include the following or similar statement: "Property owners within the subdivision shall receive no discount in property taxes or any other tax or fee because of the retention or private ownership of the community subdivision infrastructure."

(5)

Include the following or similar statement: "The City of Winter Garden shall have the right, but not the obligation, to access, maintain, repair, replace and otherwise care for or cause to be cared for, any and all private areas, drainage systems, including without limitation, the retention/detention areas and underdrains, common properties, private roads, screening walls, and such other subdivision infrastructure not otherwise dedicated to the public use or the City of Winter Garden, including, without limitation, Tracts ____________ ; and ____________ ; and the improvements thereon. In the event any or all of the said areas, systems, improvements, properties or areas are not maintained, repaired, or replaced in accordance with the standards of the City of Winter Garden Code of Ordinances, good engineering practices, or become a nuisance or in the event the City of Winter Garden exercises its aforementioned right, each of the lot owners of the subdivision are hereby ultimately responsible for payment of the cost of maintenance, repair, replacement and care provided by the City of Winter Garden or its contractors and agents, plus administrative costs and attorneys' fees and costs incurred by the City of Winter Garden. If said costs are not paid within 15 days of invoicing, then said costs shall constitute a lien on the property of the owners which fail to pay such costs and may be enforced, without limitation, by foreclosure, special assessments, or as may otherwise be permitted by law. This right, and the City of Winter Garden's exercise of said right, shall not impose any obligation on the City of Winter Garden to maintain, repair, replace, or otherwise care for said private areas, drainage systems, including without limitation, the retention/detention areas and underdrains, common properties, private roads, screening walls, and such other subdivision infrastructure not otherwise dedicated to the public use or the City of Winter Garden, including, without limitation, Tracts ____________ ; and ____________ ; and the improvements thereon."

(6)

Provide for the consequences resulting from a default with the provisions of the declaration, or amendment thereto, or the provisions of this chapter by the HOA or developer as set forth in section 110-159.

(7)

Provide that any transfer of any portion or component of the community subdivision infrastructure (including the property on which the said community subdivision infrastructure is located) to the city or other governmental entity is prohibited without the concurrence of the city or governmental entity and the owners of two-thirds (or such higher percentage as the declaration may provide) of the platted lots.

(8)

Require the establishment, funding and maintenance of an HOA account for annual routine maintenance and repair of the community subdivision infrastructure (referred to in this division as the "routine-community subdivision infrastructure-maintenance account"), and impose the restrictions and requirements set forth in section 110-157 regarding that account. Provide for the developer's obligation to ensure adequate funding of HOA routine-community subdivision infrastructure-maintenance account required by section 110-157 until turnover of the HOA. Provide that developer/declarant shall continue to have responsibility to ensure proper maintenance of the community subdivision infrastructure until turnover occurs.

(9)

Require the establishment, funding and maintenance of an HOA account for major capital repair and replacement of the subdivision's roads, curbing, sidewalks, stormwater drainage systems, and walls, etc. (referred to in this division as the "capital-community subdivision infrastructure reserve account"), and impose the restrictions and requirements set forth in section 110-157 regarding that account. Provide for the developer's obligation to ensure adequate funding of HOA capital-community subdivision infrastructure reserve account required by section 110-157 until turnover of the HOA.

(10)

Include the following or similar statement: "The association and the lot and unit owners are responsible for assessing, collecting and reserving sufficient funds to operate, maintain, repair and replace common properties and subdivision infrastructure improvements. The City of Winter Garden shall not be liable or responsible for the maintenance, repair and replacement of private subdivision property and infrastructure improvements."

(11)

Include the following or similar statement: "It is prohibited to alter the grade of or original drainage plan for any parcel, lot or tract, or change in the direction of, obstruct, or retard the flow of surface water drainage, or alter or remove of any berm, pipe, ditch, weir, manhole, swale, and stormwater collection, storage and conveyance system unless expressly authorized by the City of Winter Garden. This provision shall be considered a restrictive covenant in favor of and enforceable by the City of Winter Garden and in the event of a violation of this provision, the City of Winter Garden shall have the right to obtain injunctive relief, seek damages, and assess fines and liens in the amount of the cost to remedy the prohibited action (including administrative costs and attorneys' fees and costs) against the violating person or entity and any property owned by such violating person or entity; provided however, such right shall not limit the City of Winter Garden's other available enforcement actions permitted by law or equity."

(12)

For subdivisions with private roads or alleys, include the following or similar statement: "There is hereby created, granted and reserved for the benefit of the City of Winter Garden and other public service and emergency service providers, a non-exclusive easement over, under and through the private subdivision roads and alleys for vehicular and pedestrian ingress and egress access for the purpose of providing public and emergency services to the common property and lots, including but not limited to, postal, fire protection, police protection, emergency medical transportation, code enforcement, garbage, utilities and other public and emergency services."

(13)

Provide that the HOA may not be dissolved and that no portion of the declaration, or amendment thereto, pertaining to the requirements of this chapter may be amended without the written consent of the city.

(14)

Shall not contain any provisions that would circumvent the purpose and intent of any requirement of this chapter, any condition of a development order issued by the city, or any other applicable ordinance as determined by the city manager or his/her designee, including without limitation, any statement of protest of provisions required by this division or any provision impeding or restricting the HOA or the city's access to courts or rights and remedies against the developer in the event of developer's (or declarant's) default of its obligations and responsibilities under this chapter or to the HOA or city (or any combination thereof). This subsection does not prohibit the incorporation by reference of applicable statutes of limitation set forth in Florida Statutes, if any, or voting requirements as may be expressly required of the HOA by Florida Statutes, if any.

(15)

Shall not contain any provision providing for a mandatory pre-litigation claims process, arbitration proceeding, or pre-suit mediation procedure in order for the city, the HOA, or any lot owner to make or bring claims, lawsuits or administrative proceedings against the developer (or declarant) or any home builder, except for the incorporation of any provision that is specifically set forth in and required by Florida Statutes.

(16)

Shall not contain, unless expressly required by Florida Statutes, any provision providing for: (i) HOA to make payments or reimbursements to the developer (or declarant); (ii) the assessment of lot owners for the benefit or reimbursement of the developer (or declarant); or (iii) lot owners to make payments to pay for, in whole or part, the original construction cost of community subdivision infrastructure improvements required to be constructed by the developer (or declarant) or its successors and assigns as set forth in any development order or permit. This subsection does not prohibit provisions concerning the assessment of lot owners by the HOA concerning the cost to operate, maintain, reconstruct, repair, replace or remodel community subdivision infrastructure improvements.

(17)

Shall not contain any provision prohibited by Florida Statutes.

(18)

Shall not contain any provision reserving upon the developer (or declarant) or the HOA the authority to restrict individual lot owners' choice of utility service provider(s), including by way of example, but not limitation, through the reservation of the right to sell, lease, or grant licenses, permits or franchises over, under and through the subdivision property to utility service providers for service to the lots. This subsection does not prohibit provisions allowing for the HOA to select utility service providers to service common areas and common properties owned by the HOA.

(19)

Provide that the declaration provisions required by this division, referencing the city, or required as a condition of any development order issued by the city shall not be removed or amended without the prior written consent of the city manager or his/her designee. Provide that the declaration shall not be amended to add any provisions prohibited by this division without the written consent of the city manager or his/her designee. Provide that declaration provisions required (or prohibited) by this division or required as a condition of any development order issued by the city shall be considered a restrictive covenant in favor of and enforceable by the city.

(20)

Provide that tracts owned by the city within the subdivision are exempt from the provisions of the declaration, and that the city shall not be subject to enforcement, regulation or assessment under the declaration or by the HOA, declarant, or any owner by virtue of the city's ownership of tracts or easements conveyed or dedicated to the city, or for any other basis. Provide that no provision of the declaration shall restrict or prohibit the city or any other applicable government authority from enforcement of their respective laws, ordinances, rules and regulations (as they may be amended from time to time) against the declarant, HOA, any lot owner or others.

(21)

Provide for other such terms as may be required as a condition of any development order issued by the city, including by way of example but not limitation, provisions relating to HOA maintenance of retaining walls, drainage swales and improvements or other improvements on a lot(s) benefiting more than that lot(s).

(Ord. No. 13-12, § 2, 3-14-13; Ord. No. 14-29, § 4, 7-24-14)