Section 15.1. Ownership and Operation of the Golf Course.
(a) All persons and entities, including all Owners and residents of the Community, are hereby advised that no representations or warranties, either oral or written, have been or are made or authorized by or on behalf of the Declarant or any other person or entity with regard to the development, features, continuing existence, ownership, or operation of the Golf Course. Further, the ownership and/or operation of the Golf Course, assuming the Golf Course is developed, may be by an affiliate of the Declarant and may change at any time and from time to time by virtue of but without limitation:
(i) The sale or transfer of the Golf Course, or of the rights to operate the Golf Course, by the Golf Course owner;
(ii) The creation or conversion of the ownership and/or operating structure of the Golf Course to an “equity” club or similar arrangement hereby the Golf Course or the rights to operate the Golf Course are transferred to an entity which is owned or controlled by its members; or
(iii) The transfer of ownership or control of the Golf Course to one or more affiliates, shareholders, employees, or independent contractors of the Golf Course owner.
(b) No consent of the Association, or any Owner or resident shall be required to effectuate any sale, transfer or conversion of or relating to the Golf Course.
(c ) If the Golf Course ceases to operate, the land previously used for the Golf Course may be used for any purpose permitted under applicable zoning or other ordinances,
Section 15.2. Right to Use.
Neither membership in the Association nor ownership or occupancy of a Living Unit shall confer any ownership interest in or right to use the Golf Course. No Owner or other resident of the Community shall use or enter upon any portion of the Golf Course or any cart paths which serve the Golf Course without the prior written consent of the owner or operator of the Golf Course. Membership plans or other rights to use the Golf Course will be granted only to such persons, and on such terms and conditions, as may be determined from time to time by the owner of the Golf Course, including, without limitation, the payment of a daily greens fee. The owner or operator of the Golf Course shall have the right, from time to time, to amend, waive or terminate the terms and conditions for use of the Golf Course, including, without limitation, eligibility for and duration of use rights, the categories of membership and extent of membership privileges, and the number of Golf Course users, and shall also have the right to reserve use rights and to terminate use rights altogether, subject to the provisions of any outstanding membership documents and agreements.
Section 15.3. View Impairment.
Neither the Declarant, the Association nor the owner or operator of the Golf Course guarantees or represents that any view over and across the Golf Course from adjacent Living Units will be preserved without impairment. In addition, the owner or operator of the Golf Course may, in its discretion, change the location, configuration, size and elevation of the tees, bunkers, fairways and greens on the Golf Course at any time and from time to time, including, without limitation, the installation or removal of trees, shrubbery or other vegetation. Any such additions or changes to the Golf Course may diminish or obstruct any view from the Living Units and any express or implied easements for scenic, sight, view or similar purposes or for the passage of light and air are hereby expressly disclaimed.
Section 15.4. Jurisdiction and Cooperation.
It is the Declarant’s intention that the Association and the owner and operator of the Golf Course shall cooperate to the maximum extent possible in the operation of the Community and the Golf Course. The Association shall have no power to promulgate rates and regulations affecting activities on or use of the Golf Course.
Section 15.5. Golf Come Easements and Restrictions.
(a) It is intended that the Community will be subject to certain agreements, easements and restrictions relating to the Golf Course set forth in a declaration of easements and covenant to share costs recorded or to be recorded among the Land Records (the “Golf Course Covenants”, as the same may be amended from time to time). The Golf Course Covenants are generally intended to establish certain easements and restrictions pertaining to the Golf Course and the Community, including, without limitation, easements for cart paths within the Community and restrictions on activities on lots adjacent to all Golf Course fairways and greens. This Declaration may be made subject and subordinate to the Golf Course Covenants by the Declarant, in its sole discretion, and the Declarant shall have the right to record such instruments as may be necessary to evidence such subordination without the consent or joinder of any Owner, Mortgagee or any other party.
(b) The Community is hereby subject to an easement permitting errant golf halls originating from the Golf Course which unintentionally come upon any portion of the Community, and for golfers at reasonable times and in a reasonable manner to come upon any portion of the Community Property or within fifteen (15) feet of the lot line for any Living Unit to retrieve such errant golf balls; provided, however, that if any Living Unit is properly fenced or walled or if a golf ball is more than fifteen (15) inside the lot line of a Living Unit, the golfer shall seek the Owner’s permission before entry. Under no circumstances shall the Declarant, any the owner or operator of the Golf Course, the Association or its Members (in their capacity as such), or any of their respective officers, directors, partners, members, employees, agents, affiliates, successors or assigns, be held liable for any property damage or personal injury resulting from errant golf balls or the exercise of this easement, and by taking title to a Living Unit, every Owner, on its own behalf and on behalf of its family members, occupants, tenants, invitees, guests, employees, successors and assigns, expressly assumes all risks associated with living in proximity to the Golf Course and agrees not to make any claim or institute any actions against any of the foregoing parties for any damage to property or personal injury that may be caused from errant golf balls. However, the foregoing shall not constitute a release of any rights to seek recourse against any trespasser on the Golf Course or the Community or against any other party for acts of willful misconduct or gross negligence by such party.
(c ) A perpetual non-exclusive easement is granted to the owner of the Golf Course and its designees to enter upon a strip of the Community Property or any Owner’s lot which may be adjacent to the Golf Course ten (10) feet in width measured from the boundary of the Golf Course, for the construction and upkeep of the improvements located on the Golf Course, provided, however, that this easement shall be effective only with respect to the areas of the Community covered solely by dirt or grass or to areas with improvements that are within the easement area in violation of the Governing Documents, the Golf Course Covenants or applicable local ordinances. Nothing in this subsection shall prohibit or otherwise limit an Owner’s rights, subject to the other provisions of the Governing Documents, the Golf Course Covenants, or other applicable easement agreements, to construct, install, operate, inspect, maintain, repair or replace any improvements located on such Owner’s lot. To the extent there are improvements constructed by an Owner in compliance with the Governing Documents and local ordinances within the easement area, this easement shall not be applicable to the area upon which such improvements are located for so long as such improvements exist. The owner of the Golf Course shall promptly repair or restore any damage to any portion of the Community caused in connection with its easement rights granted pursuant to this subsection.
(d) The Community is hereby subject to an easement in favor of the Golf Course for overspray and runoff of water from any irrigation system serving the Golf Course as well as for overspray and runoff of fertilizers, chemical turf treatments and pesticides used within the Golf Course and is farther subject to an easement for noise generated from Golf Course maintenance equipment. The owner or operator of the Golf Course may use fertilizers, chemical turf treatments and pesticides on the Golf Course subject only to the limitations imposed by applicable law and the terms of any governmental approvals applicable to the Golf Course. It is intended that treated effluent from the Storage Lagoon shall be used to irrigate the Golf Course. As set forth in the Golf Course Covenants, the Community is encumbered by certain covenants and easements with respect to the irrigation system that connects the Storage Lagoon to the Golf Course, including the rights and obligations of the Golf Course owner with respect to such irrigation system.
(e) A perpetual, nonexclusive easement is granted to owner of the Golf Course and its employees, agents, contractors, and invitees over and across the Community for the use of the Community Roads without any charge for such use. The grantees of this easement shall be limited to the most direct route of access to the Golf Course and the owner of the Golf Course shall use all reasonable commercial efforts to limit travel by such grantees through the Community to such direct route. The Association shall have the right to reasonably restrict access to Community Roads that are not essential to the exercise of this easement. The grantees of this easement shall only be permitted to park in parking areas within the Golf Course and not within the Community, except in parking areas as may be permitted by the Association on portions of the Community Property. The owner of the Golf Course shall use all reasonable commercial efforts to discourage parking by the grantees of this easement on any portions of the Community other than parking areas authorized by the Association
(f) No Owner shall use any lakes or ponds located within the Golf Course for any purpose, including, without limitation, for swimming, boating, fishing or ice-skating, without the express permission of the owner of the Golf Course. No Owner shall remove any historical artifacts from the Golf Course.
(g) The owner or operator of the Golf Course may take such measures as it, in its sole discretion, deems to be desirable to control wildlife on or entering upon the Golf Course, subject only to the limitations imposed by applicable law.
(h) Pets shall be kept off of the Golf Course and Golf Course cart paths at all times.
(i) No signs shall be allowed within, an Owner’s lot that are visible from the Golf Course other than emergency or warning signs approved by the Declarant or the Association or marketing signs installed or allowed by the Declarant.
(j) No activity shall be permitted within any Living Unit or other portion of the Community contiguous or in proximity to the Golf Course that unreasonably disturbs play or the enjoyment of the Golf Course, including, without limitation, undue noise, unsightly trash and debris or any other noxious or offensive activity. However, typical noises and activities associated with normal construction activities or residential uses within the Community shall be permitted.
(k) The Declarant shall have the power, without the consent or joinder of any Owner, Mortgagee or any other party, to grant such additional easements and restrictions as it deems appropriate across any portion of the Community for the benefit of the Golf Course, provided that any such additional easements are consistent with this Declaration and the Golf Course Covenants and do not materially and adversely affect the use and enjoyment of the portion of the Community subject to such additional easement or easements. The Declarant may also grant easements for utilities to benefit the Golf Course across any portion of the Community pursuant to Section 11.1 © of this Declaration.
Section 15.6. Golf Course Owner’s Enforcement and Amendment Rights.
(a) The owner of the Golf Course shall have the right to enforce, by any proceeding at law and/or in equity, all easements, restrictions and other provisions of this Article 15 that are for the benefit of the Golf Course and the owner of the Golf Course. Failure by the owner of the Golf Course to enforce any such provision of this Article 15 shall in no event be deemed a waiver of the right to do so thereafter. The Declarant shall also have the right, but not the obligation, to enforce the provisions of this Article 15 that benefit the Golf Course and the owner of the Golf Course.
(b) All provisions of this Article 15 that benefit the Golf Course shall inure to the benefit of the owner of the Golf Course and its successors and assigns.
(c ) No provision of this Article 15 that benefits the Golf Course or the owner of the Golf Course shall be amended without the prior written approval of the owner of the Golf Course.
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