Section 4.1 Architectural Control Committee. An Architectural Control Committee ("Committee") consisting of at least three (3) members, but in any event always an odd number of members, is hereby created with the rights and powers set forth in this Declaration. The initial members of the Committee shall be representatives appointed by Declarant. Committee members shall not be entitled to compensation for their services hereunder, except as may be determined by the Board of Directors. Declarant shall have the right and power at all times to appoint or renew the appointment of the members of the Committee or to fill any vacancy until the expiration of the Declarant Control Period. After the expiration of the Declarant Control Period, the Board shall have the power to appoint and remove the members of the Committee.

Section 4.2 Jurisdiction and Purpose. The Committee shall review proposed plans and specifications for construction of all residences and other Structures within Lexington Subdivision, including any additions, exterior alterations, fences, major landscaping, clearing, painting, paving and excavation. During the Declarant Control Period, a prospective Unit Owner shall submit architectural and landscaping plans and specifications to the Committee for its review prior to closing the purchase of a Unit. Prior to submittal to the Committee, the Unit Owner shall verify all improvements meet all local municipal codes. The Committee assumes no liability and holds no authority to approve, permit, or allow any construction on behalf of the local governing authorities. The Committee shall adopt and publish rules and procedures for the review of such plans and specifications. It shall be the obligation of each Unit Owner or prospective Unit Owner to be familiar with the rules and procedures of the Committee. As conditions precedent to approval of any matter submitted to it, the Committee shall find:

Section 4.3 Approval Procedures. Two copies of a preliminary application for approval must be submitted in writing to the Committee at the registered office of the Association. Within fifteen (15) days following receipt of a preliminary application, the Committee shall notify the applicant in writing as to whether the application is complete and, if not, of any additional information that may be required before the Committee can review the application. The Committee's rules and procedures may specify the payment of a reasonable nonrefundable fee, to be set forth in the Committee rules, for the purpose of defraying the costs associated with the Committee's review of the preliminary application. This fee may be adjusted from time to time by the Committee in accordance with its rules and procedures. The Committee shall review the application in accordance with the provisions of this Section as soon as possible after a complete application has been filed. The decision of a majority of the members of the committee shall be the decision of the Committee. One copy of approved plans will remain in the Committee's files. All disapproved plans will be returned to the applicant.

 

Section 4.4 Failure of Committee to Take Action. Except as provided in Section 4.6 below, in the event that the Committee fails to respond to an applicant's complete and properly submitted application within thirty (30) days after the Committee has notified the applicant that the application is complete, formal written approval will not be required, and the applicant shall be deemed to have fully complied with the provisions for approval; provided, however, if the Committee delivers notice of the need for one (1) thirty (30) day extension prior to expiration of the above-referenced thirty (30) day period, the Committee shall have thirty (30) additional days to make its decision.

 

Section 4.5 Committee's Obligation. The Committee, in its deliberations and in the discharge of its obligations hereunder, shall act objectively and fairly in making decisions concerning various plans, specifications, plot plans and landscape plans submitted to it by various applicants for consideration in accordance with the provisions of this Declaration. Further, the determinations of the Committee as to noncompliance shall be in writing, signed by the Committee, and shall set forth in reasonable detail the reason for noncompliance. The Committee may approve, approve with conditions, or disapprove an application or any part thereof. In all cases, the sole responsibility for satisfying the provisions of this Declaration and all local building codes and governmental requirements rests with the applicant. In consideration of the Committee's review of an applicant's application, the applicant shall indemnify and hold the Committee harmless from any claim or damages resulting from applicant's failure to comply with applicable building codes or other governmental requirements.

 

Section 4.6 Exemptions and Variances From Committee Requirements. The Committee may, upon request, grant exemptions and variances from the rules and procedures of the Committee and the requirements of this Declaration when the party requesting such exemption or variance establishes to the satisfaction of the Committee that the improvements or other matters which are desired by the applicant are aesthetically as appealing, suited to climatic conditions, and compatible with the overall character of the development as are similar improvements or matters which conform to the requirements of this Declaration. Request for an exemption or variance shall be submitted in writing to the Committee and shall contain such information as the Committee shall from time to time require. The Committee shall consider applications for exemption or variance and shall render its decisions within thirty (30) days after notice to the applicant of proper submission. The failure of the Committee to approve an application for an exemption or variance shall constitute disapproval of such application.

 

Section 4.7 Construction Deposit. For purposes of protecting the Common Elements and Common Element improvements against damage during construction by a Unit Owner, his contractors and agents, the Committee has authority, but is not mandated, to require a cash deposit from each Unit Owner to whom approval of plans is given of an amount deemed appropriate by the Committee for such purposes ("Construction Deposit"), if the Committee finds that potential damage can be done to the Common Element(s) caused by Unit Owner's proposed construction. The Construction Deposit, however, shall not exceed Two Thousand Dollars ($2,000.00). In the event a Unit Owner, his contractor, agents or employees causes any damage or destruction to any portion of the Common Elements or Common Element Improvements, the Committee shall notify such Unit Owner and request the replacement or repair of the item or area damaged or destroyed. The Unit Owner shall have a period of two (2) business days after the date or receipt of such notice to advise the Committee of its intended course of action and its schedule for correction of the damage, and to commence such correction. The Committee shall in its sole discretion approve or disapprove such course and schedule, and the Unit Owner agrees to make such changes thereto as are necessary to obtain the Committee's approval. If the Unit Owner fails to correct the damage in the manner or within the time approved by the Committee, the Committee may, at its option, perform such work as is necessary to remedy the situation on behalf and at the expense of the Unit Owner and apply the Construction Deposit against the cost thereof. If the cost of such work exceeds the total amount of the Construction Deposit, the Unit Owner shall pay the Association that excess cost within ten (10) days of demand by the Committee. Upon completion of construction of the Improvements on the Unit, and following a joint inspection of the Improvements and Unit by the Unit Owner and the Committee to verify that no damage to the Common Elements and/or Common Element Improvements has occurred, the Committee shall make a final determination of compliance and return the remaining balance, if any, of the Construction Deposit to the Unit Owner, without interest within ten (10) days of such final determination

 

Section 4.8 Failure of Applicant to Comply. Failure of the applicant to comply with the rules and procedures of the Committee or the final application as approved by the Committee shall, at the election of the Association's Board exercised after thirty (30) days' written notice to such applicant, constitute a violation of this Declaration. In that event, the Board shall be empowered to assess a penalty commensurate with the violation, which shall constitute a lien against such Unit, enforceable as provided herein and/or pursue any other remedy, including, but not limited to, an action for injunctive relief or specific performance.