HomeMy WebLinkAboutDocumentation_Regular_Tab 10_12/14/2006VILLAGE OF TEQUESTA
MEETING AGENDA ROUTING SHEET
MEETING DATE: DECEMBER 14, 2006
REQUESTED ACTION/SUMMARY: A RESOLUTION OF THE VILLAGE
COUNCIL OF THE VILLAGE OF TEQUESTA, FLORIDA, APPROVING THE
FINAL PLAT PLAN, FOR THE PRESERVE OF TEQUESTA, FORMERLY KNOWN
AS THE CROSSINGS. THE DRC HAS REVIEWED THE FINAL PLAT AND THEIR
COMMENTS ARE REFLECTED IN THESE DOCUMENTS.
RESOLUTION OR ORDINANCE NUMBER: Resolution # 22-06/07
ORIGINATING DEPARTMENT: COMMUNITY DEVELOPMENT
FUNDING SOURCE: 2006/2007 BUDGET
ACCOUNT NUMBER:
CURRENT BUDGETED AMOUNT AVAILABLE: $
AMOUNT OF THIS ITEM: $
AMOUNT REMAINING AFTER THIS ITEM: $
BUDGET TRANSFER REQUIRED: ^ Yes X No
APPROPRIATE FUND BALANCE: ^ Yes X No
Piggyback Contract Name and #:
Or
Competitive Bid #
APPROVALS:
DEPARTMENT HEAD
FINANCE DIRECTOR:
VILLAGE MANAGER: ~ ;~'~~ t~ !u~-~-~ ~
VILLAGE MANAGER RECOMMENDATION:
APPROVE ITEM: ^ DENY ITEM:
VILLAGE ATTORNEY: APPROVED FOR LEGAL SUFFICIENCY
X Yes ^ No
^ Not Applicable (n/a)
RESOLUTION N0.22-06/07
A RESOLUTION OF THE VILLAGE COUNCIL OF
THE VILLAGE OF TEQUESTA, FLORIDA,
APPROVING THE FINAL PLAT PLAN FOR THE
PRESERVE OF TEQUESTA, FORMERLY KNOWN
AS THE CROSSINGS.
NOW, THEREFORE, BE IT RESOLVED BY THE VILLAGE COUNCIL OF THE
VILLAGE OF TEQUESTA, PALM BEACH COUNTY, FLORIDA, AS FOLLOWS:
SECTION 1. The Development & Review Committee has reviewed the Final Plat and their
comments are reflected in these documents.
SECTION 2. This Resolution shall take effect immediately upon its adoption.
THE FOREGOING RESOLUTION WAS OFFERED by Council Member
who moved its adoption. The motion was seconded by Council
Member ,and being put to vote, the vote was as follows:
FOR ADOPTION
AGAINST ADOPTION
The Mayor thereupon declared the Resolution duly passed and adopted this day of
A.D., 2006.
MAYOR OF TEQUESTA
ATTEST:
Village Clerk
My Documents
EAR Resolution
This Document Prepared By:
Marilyn A. Moore, Esq.
Edwards Angell Palmer & Dodge LLP
One North Clematis Street, Suite 400
West Pahn Beach, Florida 33401
Revised By:
Anthony Faranda-Diedrich
Wolf, Block, Schorr and Solis-Cohen LLP
1650 Arch Street
22nd Floor
Philadelphia, PA 19103
And when recorded, return to:
DECLARATION OF COVENANTS. RESTRICTIONS AND EASEMENTS
FOR THE PRESERVE AT TEQUESTA
This Declaration of Covenants, Restrictions and Easements is made this day of
December, 2006, by CORNERSTONE TEQUESTA, L.L.C., a Florida limited liability company
(hereinafter referred to as the "Declarant").
RECITALS
WHEREAS, Declarant is the owner of certain real property located in the Town of
Tequesta, Palm Beach County, Florida, consisting of Parcel 1 (hereinafter defined) and Parcel 2
(hereinafter defined; Parcel 1 and Parcel 2 being collectively referred to as the "Property"), and
which is more particularly described on Exhibit "A" hereto; and
WHEREAS, Declarant wishes to initially subject the Property to the terms and conditions
of this Declaration; and
WHEREAS, Declarant deems it desirable for the efficient preservation of the values and
amenities of the Property to create a corporation not-for-profit under the laws of the State of
Florida (hereinafter referred to as the "Maintenance Association" or "Master Association") to
which there shall be assigned the powers of maintaining, administering and, if applicable,
owning, certain portions of the Property, pursuant hereto and for the further purpose of
administering and enforcing the covenants and restrictions and collecting and disbursing the
assessments and charges hereinafter created by this Declaration; and
WHEREAS, Declarant has caused the Maintenance Association to be formed for the
purpose of exercising the aforesaid purposes and functions; and
WHEREAS, it is intended that Parcel 1 be developed as multiple residential
condominiums consisting of townhouse condominium units all governed by one condominium
association (the "Multicondominium Association") to be known as "The Preserve at Tequesta
Townhomes Condominium Association, Inc.", and which development may, in the sole
discretion of Declarant, also include certain non-condominium residences governed by a
homeowners' association (the "HOA") all pursuant to a general plan and subject to certain
protective covenants, conditions, restrictions, reservations, easements, equitable servitudes, liens
and charges, all running with said Parcel 1, as hereinafter set forth; and
WHEREAS, Declarant has entered into an agreement to convey Parcel 2 to Crossings At
Tequesta, L.P., a Florida limited partnership (the "Parcel 2 Developer"), with the intent that it be
developed as a single condominium governed by one condominium association (the
"Condominium Association") also pursuant to a general plan and subject to certain protective
covenants, conditions, restrictions, reservations, easements, equitable servitudes, liens and
charges, all running with said Parcel 2, as hereinafter set forth; and
WHEREAS, it is also intended that there will be two members of the Maintenance
Association, one representing Parcel 1 (the "Parcel 1 Member") and one representing Parcel 2
(the "Parcel 2 Member"), as more particularly described in Section 31 and Section 34 of Article
I, respectively. Initially, Declarant shall be the Parcel 1 Member. In the event of and upon
recording the deed of conveyance for Parcel 2, the Parcel 2 Developer shall become the Parcel 2
Member and shall have all of such rights and obligations as are set forth in this Declaration; and
WHEREAS, Declarant wishes to initially subject the Property to the terms and conditions
of this Declaration. As more particularly set forth in Articles II and XIV hereof, Declarant and
Parcel2 Developer may execute, acknowledge and record amendments or Supplemental
Declarations as hereinafter defined. Such Supplemental Declaration(s) or amendments may
bring additional lands under the provisions of this Declaration as hereinafter provided, and may
impose further and additional restrictions, conditions and covenants for the operation, protection
and maintenance of the Property, or such portions thereof or other lands, all as hereinafter set
forth. Provided, however, that the consent of both Declarant and Parcel 2 Developer to any such
Supplemental Declaration or amendment described in this paragraph shall be required.
NOW THEREFORE, Declarant hereby declares that all of the real property described in
Exhibit "A" attached hereto shall be held, sold, conveyed, encumbered, hypothecated, leased,
used, occupied, improved and otherwise dealt with subject to the easements, covenants,
conditions, restrictions, reservations, liens, charges, and equitable servitudes as hereinafter set
forth, all of which are for the purpose of uniformly enhancing and protecting the value,
desirability and attractiveness, and are in furtherance of a general plan for the protection,
maintenance and improvement of the Property. The covenants, conditions, restrictions,
reservations, easements, equitable servitudes, liens and charges set forth herein shall run with the
title to the real property described in Exhibit "A" attached hereto and shall be binding upon all
persons having or acquiring any right, title or interest therein or any part thereof, their heirs,
personal representatives, successors and assigns and shall inure to, the benefit of each and every
person or entity from time to time owning or holding an interest in said real property or any
portion thereof and shall further inure to the benefit of and be binding upon the Declarant, its
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heirs, personal representatives, successors and assigns and each other Owner (as hereinafter
defined), his respective heirs, personal representatives, successors and assigns and his tenants,
invitees, licensees, and guests and may be enforced by an Owner, and his heirs, personal
representatives, successors and assigns, by the Maintenance Association, and by the Declarant
and Parcel 2 Developer so long as Declarant and Parcel 2 Developer are Owners of any portion
of Parcel 1 and Parcel 2, respectively (including, but not limited to, any Units contained thereon).
This Declaration and any amendment hereto shall not be deemed to be for the benefit of any
holder of a mortgage or security deed or its successors and assigns, unless and until such holder
has acquired title to a Unit pursuant to foreclosure or judicial proceeding or deed-in-lieu of
foreclosure.
It is intended that this Declaration shall be recorded in the Public Records of Palm Beach
County, Florida prior to the conveyance of Parcel 2 to Parcel 2 Developer. Accordingly, unless
expressly stated otherwise in this Declaration, all grants hereunder by Declarant to Parcel 2
Developer, of any and all rights, interests, duties or obligations, including with out limitation all
easements granted hereunder, shall be effective only upon the recording in the Public Records of
the deed of conveyance from Declarant to Parcel 2 Developer.
Notwithstanding the foregoing, no provision of this Declaration shall in any manner be
construed as to prevent or limit Declarant's or Parcel 2 Developer's rights to complete the sale or
lease of any portion of a Parcel owned by such party, and the construction of the improvements
thereon, and Declarant and Parcel2 Developer shall have the right to maintain models,
construction, sales or leasing offices, or similar or other facilities on any portion of such Parcel,
as well as the right to post signs incidental to the sales, leasing or otherwise marketing of any
portion of such Parcel.
ARTICLE I
DEFINITIONS
The following words and terms when used in this Declaration or any Supplemental
Declaration or amendment hereto, recorded and affecting any portion of the Property (unless the
context shall clearly indicate otherwise) shall have the following meanings:
Section 1. "Affiliate" shall mean, as to any particular Person, any other Person that,
directly or indirectly, is in control of, is controlled by or is under common control with such
Person.
Section 2. "A~~re~ate Assessment" or "Annual Assessment" shall mean the total
annual assessment for the Maintenance Association pursuant to the Annual Budget, as defined in
Section 3, below.
Section 3. "Annual Budget" shall mean the estimated total expenditures for services
to be provided by the Maintenance Association and other expenses of the Maintenance
Association, as more particularly described in Article V of this Declaration.
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Section 4. "Architectural and Development Review Board" or "ARB" shall mean
the Architectural and Development Review Board of the Maintenance Association as more
particularly described in Article IX of this Declaration.
Section 5. "Articles" shall mean the Articles of Incorporation of the Maintenance
Association as they may exist from time to time.
Section 6. "Assessment(s)" shall mean those charges levied by the Maintenance
Association against Members, Owners and Units for the purposes set forth in this Declaration
and identified elsewhere herein as specific types of Assessments, such as "Aggregate",
"Annual", "Special" or "Individual".
Section 7. "Board of Directors" or "Board" shall mean the Board of Directors of the
Maintenance Association as said Board may exist from time to time.
Section 8. "Bylaws" shall mean the Bylaws of the Maintenance Association as they
may exist from time to time.
Section 9. "Common Entrance Roadway" shall mean that certain entrance roadway
to the Property off of Old Dixie Highway, as more particularly shown on the Site Plan.
Section 10. "Community" or "Property" shall mean that certain real property located
in the Town of Tequesta, Palm Beach County, owned by Declarant, more particularly described
in Exhibit "A" hereto, which is the subject of this Declaration and which is and shall be held,
transferred, sold, conveyed, leased and occupied subject to this Declaration, and any additions
thereto in accordance with this Declaration, as it may be supplemented or amended from time to
time. Real property may be withdrawn from the Property in accordance with Article II of this
Declaration.
Section 11. "Community Facilities" or "Maintenance Areas" shall mean and refer to
those portions of the Property (and the improvements thereon) denoted on the Site Plan and
further described on Exhibit "C" attached hereto and made a part hereof. The Declarant and
Parcel 2 Developer, acting jointly, or the Board of Directors, may, from time to time, designate
additional areas within the Property as "Common Facilities" or "Maintenance Areas" as the
Declarant and Parcel 2 Developer, or Board of Directors, inay determine. Notwithstanding the
foregoing, upon dedication of a Common Facility or Maintenance Area to any governmental or
quasi-governmental body or utility company, such Common Facility or Maintenance Area shall
cease to be a Common Facility of Maintenance Area under this Declaration.
Section 12. "Community Systems" shall mean any and all cable television,
telecommunication, alarm monitoring lines, street lighting, conduits, wires, amplifiers, towers,
antennae, equipment, materials, installations and fixtures (including those based on, containing
or serving future technological advances not now known) necessary for the development of a
Parcel and serving more than one Unit, installed by Declarant, Parcel 2 Developer, Parcel 1
Member and/or Parcel 2 Member (or pursuant to any grant of easement or authority by
Declarant, Parcel 2 Developer, Parcel 1 Member or Parcel 2 Member ). Declarant shall be
permitted, but shall not be obligated to install and/or cause the installation of Community
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Systems on Parcel 1. Parcel 2 Developer shall be permitted, but shall not be obligated to install
and/or cause the installation of Community Systems on Parcel 2.
Section 13. "Condominium Association" shall have the meaning set forth in the
Recitals.
Section 14. "Count "shall mean Palm Beach County, Florida.
Section 15. "Declarant" shall mean CORNERSTONE TEQUESTA, L.L.C., a Florida
limited liability company. Declarant shall not assign all or any portion of its rights hereunder, or
all or any portion of such rights in connection with appropriate portions of the Community,
unless such assignment is to an Affiliate of Declarant or such other Person as Declarant and
Parcel 2 Developer may agree. In the event of such a partial assignment, the assignee shall not
be deemed to be the Declarant, but may exercise such rights of Declarant specifically assigned to
it. Any such assignment shall be presumed to be on anon-exclusive basis, unless otherwise
expressly stated.
Section 16. "Declaration" shall mean this instrument and all exhibits hereto as the
same may be amended or supplemented from time to time.
Section 17. Intentionally omitted.
Section 18. "District" shall mean the South Florida Water Management District or its
successors.
Section 19. "General Expenses" shall mean the expenditures for maintenance,
operation and the rendering of services required or authorized to be performed by the
Maintenance Association or its agents, designees, or assigns, including without limitation fees, if
any, for the operation, maintenance and, if necessary, replacement of the Surface Water
Management System.
Section 20. "HOA" shall have the meaning set forth in the Recitals.
Section 21. "Improvements" shall mean all structures of any kind, including, without
limitation any building, fence, wall, sign, paving, grading, private road, street lighting fixture,
sidewalk, recreational facility, any addition, alteration, screen enclosure, sewer, drain, disposal
system, decorative building, landscaping or landscaping device or object or other changes to the
natural state of the property and vegetation existing thereon.
Section 22. "Individual Assessments" shall mean assessments levied against particular
Units and/or Owners to the exclusion of others and other charges against specific Units or
Owners as contemplated in this Declaration.
Section 23. "Institutional Mort~a~e" shall mean any mortgage of public record given
or assumed by Declarant or Parcel 2 Developer, whether a first mortgage or otherwise or any
first mortgage of public record on any Unit, or other portion of the Property, owned or held by an
Institutional Mortgagee as said term is defined in Section 24 of this Article.
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Section 24. "Institutional Mort~~ee" shall mean any bank, bank holding company,
trust company or subsidiary thereof, savings and loan association, insurance company, union
pension fund, mortgage company, agency of the United States government, Declarant or Parcel 2
Developer, which holds a first mortgage of public record on any Unit, or part thereof, or other
portion of the Property and the holder of any mortgage of public record given or assumed by
Declarant or Parcel 2 Developer, whether a first mortgage or otherwise, and their respective
successors and assigns.
Section 25. "Maintenance Association" or Master Association" shall mean THE
PRESERVE AT TEQUESTA MAINTENANCE ASSOCIATION, INC., anot-for-profit Florida
corporation, its successors and assigns, being the entity responsible for the administration, and
enforcement of performance of certain duties as hereinafter set forth in this Declaration and in
the Articles and Bylaws.
Section 26. "Member" shall mean either Parcel 1 Member or Parcel 2 Member, as the
context may require.
Section 27. "Multicondominium Association" shall have the meaning set forth in the
Recitals.
Section 28. "Owner" shall mean the record owner, whether one or more persons or
entities, of the fee simple title to any Plat Parcel, Tract or Unit (as hereinafter defined) situated
within the Property. If a condominium building is located on a Plat Parcel or Tract, each owner
of a residential unit within the condominium building shall be considered an Owner. Unless the
context requires otherwise, aSub-Association shall be deemed the Owner of any real property
owned or administered by said Sub-Association. Owner shall not mean or refer to the holder of a
mortgage or security deed or its successors and assigns, unless and until such holder has acquired
title pursuant to foreclosure or judicial proceeding or deed-in-lieu of foreclosure.
Section 29. "Parcel" shall mean either of Parcel 1 or Parcel 2 as shown on the Site
Plan, a copy of which is attached to this Declaration as Exhibit "B".
Section 30. "Parcel I" shall mean that certain real property depicted as "Parcel I" on
the Site Plan, and which is more particularly described on Exhibit "A-1" attached hereto and
made a part hereof.
Section 31. "Parcel 1 Member" shall mean Declarant until (a) the date of turnover of
control of the Multicondominium Association from the Declarant to the respective members
thereof if there are no non-condominium residences on Parcel 1, upon which date Declarant will
automatically be replaced as the Parcel 1 Member by the Multicondominium Association, or (b)
if there are non-condominium residences on Parcel 1, the date of turnover of control of the
Multicondominium Association and HOA from the Declarant to the respective members thereof,
upon which date Declarant will automatically be replaced as the Parcel 1 Member by an entity
jointly designated by the Multicondominium Association and the HOA (pursuant to a mechanism
to be determined between the Multicondominium Association and the HOA); provided, however,
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that the Declarant will notify the Master Association of the date of change of identity of the
Parcel 1 Member as described in this definition.
Section 32. "Parcel 2" shall mean that certain real property depicted as "Parcel 2" on
the Site Plan, and which is more particularly described on Exhibit "A-2" attached hereto and
made a part hereof.
Section 33. "Parcel 2 Developer" shall mean CROSSINGS AT TEQUESTA, L.P., a
Florida limited partnership. Parcel 2 Developer shall not assign all or any portion of its rights
hereunder, or all or any portion of such rights in connection with appropriate portions of the
Community, unless such assignment is to an Affiliate of Parcel 2 Developer or such other Person
as Declarant and Parcel 2 Developer may agree. In the event of such a partial assignment, the
assignee shall not be deemed to be the Parcel 2 Developer, but may exercise such rights of
Parcel 2 Developer specifically assigned to it. Any such assignment shall be presumed to be on a
non-exclusive basis, unless otherwise expressly stated.
Section 34. "Parcel 2 Member" shall mean Parcel 2 Developer until the date of
turnover of control of the Condominium Association from Parcel 2 Developer to the respective
members thereof, upon which date Parcel 2 Developer will automatically be replaced as the
Parcel 2 Member by the Condominium Association; provided, however, that Parcel 2 Developer
will notify the Master Association of the date of change of identity of the Parcel 2 Member as
described in this definition.
Section 35. "Person" shall mean any individual, limited partnership, partnership,
corporation (including a business trust), limited liability company, joint stock company, trust,
unincorporated association, joint venture or other entity.
Section 36. "Plat" shall mean that certain plat of the Property attached hereto as
Exhibit "B-1".
Section 37. "Plat Parcel" shall mean the respective portions of the Property designated
as "Parcel 4", "Parcel 5", "Parcel 6", "Parcel ?", "Parcel 8", "Parcel 9", "Parcel 10", "Parcel 11"
"Parcel 12", "Parcel 13", "Parcel 14", "Parcel 15" or "Parcel 16" on the Plat and any other
property added to the Property by Supplemental Declaration as elsewhere provided herein and
which is designated therein as a "Parcel", as applicable.
Section 38. "Site Plan" shall mean that certain site plan of the Property attached as
Exhibit "B" hereto and made a part hereof.
Section 39. "SFWMD" shall mean the South Florida Water Management District.
Section 40. "SFWMD Permit" shall mean SFWMD Permit No. ,dated
200_, a copy of which is attached hereto as Exhibit "D".
Section 41. "Special Assessments" shall mean assessments for services which the
Master Association is authorized or required to provide, to the extent that the Annual Assessment
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is insufficient to fund such services. Such Special Assessments are more particularly described
in Article V of this Declaration.
Section 42. "Sub-Association" shall mean any association now or hereafter created to
administer one or more specific portions of the Property pursuant to a declaration of
condominium or declaration of covenants and restrictions or similar instrument affecting such
portions but shall not mean or in any manner be deemed to include the Maintenance Association.
Section 43. "Supplemental Declaration" shall mean any declaration of covenants,
conditions and restrictions; declaration of condominium; or any similar instrument other than this
Declaration which when executed by Declarant and/or Parcel 2 Developer, as applicable, and
either has the effect of adding or deleting property to the Property pursuant to the provisions of
Article II hereof, or any such declaration affecting all of the Property or the Community.
Section 44. "Surface Water Management System" shall mean those portions of the
Property which the Maintenance Association is required to maintain pursuant to the SFWMD
Permit, as provided in Article III, Section 1 of this Declaration, which inay include, but not be
limited to, lakes, retention areas, culverts and related appurtenances.
Section 45. "Tract" shall mean the respective portions of the Property designated as
"Tract B", "Tract I", "Tract J", "Track K", "Tract L" or "Tract M" on the Plat and any other
property added to the Property by Supplemental Declaration as elsewhere provided herein and
which is designated therein as a "Tract", as applicable.
Section 46. "Unit" shall mean any portion or subdivision of a Plat Parcel or Tract
which may be separately owned and conveyed and on which there are constructed improvements
intended for occupancy as a single family residence pursuant to the applicable zoning ordinance
and/or site plan (whether separately owned or rented by the Owner of such Plat Parcel or Tract
and whether such Unit is a single family or other non-condominium residence or is located in a
single-family or multi-family building (rental or otherwise)), or any condoininiuin unit in any
condominium building erected on any Plat Parcel or Tract of land within the Property. Such
improvements shall be deemed to be a Unit for purposes of this Declaration, upon recording of a
deed of conveyance by the applicable developer thereof, if a single family residence, or upon
recording of the applicable declaration, if a condominium.
Section 47. "Utility Facilities" shall mean the facilities located generally within the
Common Entrance Roadway used to provide utility services to both Parcel 1 and Parcel 2
(including but not limited to facilities used to provide electric, telephone, sanitary sewer, water,
gas or cable television service to both Parcel 1 and Parcel 2).
Section 48. "Villa e" shall mean the Village of Tequesta, Palm Beach County,
Florida.
Section 49. Interpretation and Flexibility. In the event of any ambiguity or question as
to whether any person, entity, property or improvement falls within any of the definitions set
forth in this Article, the determination made by the Declarant and Parcel 2 Developer, acting
jointly, in such regard (as evidenced by a recorded instrument stating same) shall be binding and
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conclusive. Moreover, Declarant and Parcel 2 Developer, acting jointly, may, also by way of a
recorded instrument, alter or amend the application of any portion of this Declaration as to any
specified portion(s) of the Community in order to reflect any unique characteristics thereof;
provided that such altered or amended application may not go so far as to be unequivocally
contrary to the overall, uniform scheme of development for the Community contemplated in this
Declaration.
ARTICLE II
PROPERTY SUBJECT TO THIS DECLARATION; ADDITIONS
THERETO/WITHDRAWALS THEREFROM
Section 1. Leal Description. The real property comprising the Property which shall
be held, transferred, sold, conveyed, leased and occupied subject to this Declaration is described
in Exhibit "A" attached hereto and made a part hereof by reference. Declarant and Parcel 2
Developer may, acting jointly, as provided in Section 2 hereof, either bring within this
Declaration additional lands, or withdraw lands pursuant to this Article.
Section 2. Addition of Property. Declarant and Parcel 2 Developer, acting jointly, as
provided in this Section 2, may, from time to time, bring other land under the provisions of this
Declaration and thereby add to the land which shall comprise the Property by executing and
recording Supplemental Declarations. Such Supplemental Declarations shall not require the
consent of then existing Owners, the Maintenance Association or any other individual or entity
whether or not the land being added thereby is part of the Community described on Exhibit "A"
or otherwise. If Declarant or Parcel 2 Developer is not the owner of the land to be subjected
hereto and/or added to the Property as of the date the applicable Supplemental Declaration is to
be made, then the fee owner(s) of such land shall join in such Supplemental Declaration. Once
so added, such land shall be deemed a part of the Property which has been subjected to this
Declaration for all purposes of this Declaration, except as modified pursuant thereto, if at all.
Nothing in this Declaration shall, however, obligate the Declarant and Parcel 2 Developer to add
to the Property.
All Owners, by acceptance of their deeds to, or otherwise acquiring title to their Plat
Parcels, Tracts or Units thereby automatically consent to any rezoning, change, addition or
deletion thereafter made by the Declarant and Parcel 2 Developer and shall evidence such
consent in writing if requested to do so by the Declarant and Parcel 2 Developer at any time
(provided, however, that the refusal to give such written consent shall not obviate the effect of
this provision). With respect to property to be subjected hereto and/or added to the Property
which is not owned by the Declarant or Parcel2 Developer, the Declarant and Parcel 2
Developer shall have the right to impose (and retain for their own account) fees for the privilege
of allowing such other property to be made subject to this Declaration as aforesaid.
Notwithstanding the foregoing, no additions may be made to the Property, nor Supplemental
Declarations be executed and recorded, without the prior written joinder and consent of the
Declarant and Parcel 2 Developer, which joinder and consent shall be in the sole and absolute
discretion of the Declarant and Parcel 2 Developer, as applicable.
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Section 3. Withdrawal. The Declarant and Parcel 2 Developer, acting jointly, shall
have the right to amend this Declaration at any time, without prior notice and without the consent
of any other person or entity, for the purpose of removing any portion of the Property then
owned by Declarant or Parcel 2 Developer from the provisions of this Declaration to the extent
included originally in error or as a result of any change whatsoever in the plans for the Property
desired to be effected by the Declarant and Parcel 2 Developer; provided, however, that such
withdrawal is not, in the reasonable judgment of Declarant and Parcel 2 Developer, acting
jointly, unequivocally contrary to the overall, uniform scheme of development for the then-
remaining portions of the Property. Any withdrawal of land not owned by Declarant or Parcel 2
Developer shall only be effected with the written consent or joinder of the then-owner(s) of such
land. Notwithstanding anything to the contrary contained in this Declaration, and without
limitation, all easements, use and other similar rights created or granted under this Declaration
shall automatically cease and terminate as to all land which is withdrawn from the Property in
accordance herewith.
ARTICLE III
MAINTENANCE ASSOCIATION MEMBERSHIP AND VOTING RIGHTS
Section 1. Functions and Duties. The Maintenance Association shall be responsible
for the maintenance, repair and replacement of the Maintenance Areas, including without
limitation, responsibility for the operation, maintenance and replacement of the Surface Water
Management System, in perpetuity, and as well as the obligation to take any actions against
Owners necessary to enforce the conditions of the SFWMD Permit; maintain copies of the
SFWMD Permit and any future permit actions of the SFWMD, which shall be maintained by the
registered agent of the Maintenance Association for the benefit of the Maintenance Association;
perform any monitoring and maintenance required in the SFWMD Permit; complete any
mitigation required to satisfy permit conditions; and maintain in perpetuity any signage required
by the SFWMD Permit. All costs and expenses incurred in connection with all of the foregoing
shall be General Expenses. Copies of the Articles of Incorporation and Bylaws of the
Maintenance Association are attached hereto and made a part hereof as Exhibits "E" and "F",
respectively. [Exhibits E and F need to be drafted and attached]
Section 2. Membership. There shall be two (2) members of the Maintenance
Association, Parcel 1 Member and Parcel 2 Member.
Section 3. Voting Rights. The two (2) members of the Maintenance Association
shall each have one (1) vote. Parcel 1 Member and Parcel 2 Member shall exercise their
respective votes in accordance with the procedures set forth in the Bylaws. The Parcel 1
Member and Parcel 2 Member shall each designate a person authorized to cast the Member's
vote and shall notify the Maintenance Association of the designated person ("Votin
Representative") from time to time.
Section 4. Board of Directors. The Maintenance Association shall be governed by a
Board of Directors as provided for in the Articles and Bylaws of the Maintenance Association.
The members of the Board of Directors shall be selected jointly by Parcel 1 Member and Parcel
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2 Member, and otherwise in the manner set forth in the provisions of this Declaration and
pursuant to the Articles and Bylaws of the Maintenance Association.
Section 5. Notices to Members. All notices, mailings and other documents provided
or to be provided by the Maintenance Association to Members shall be sent to the "Voting
Representative" at his/her address as on file with the Maintenance Association, from time to
time. The Maintenance Association shall not have any obligation or responsibility to provide
notices, mailings or documents to anyone other than the Voting Representatives as may be
designated, from time to time, by Members in accordance with this Declaration and the Articles
and Bylaws of the Maintenance Association.
Section 6. General Matters. When reference is made in this Declaration, or in the
Articles or Bylaws, or other relevant documents, to a majority or specific percentage of
Members, such reference shall be deemed to be reference to a majority or specific percentage of
either: (a) the votes of Members evidenced by a written consent of Members executed in
accordance with Section 2.8 of the Bylaws [We need to see a draft of the Bylaws to
understand this cross reference]; or, as applicable (b) the votes of Members at a duly
constituted meeting thereof (i.e., one for which proper notice has been given and at which a
quorum exists) and not of the Members themselves. To the extent lawful, the foregoing shall
apply to, without limitation, the establishment of a quorum at any applicable meeting.
Section 7. Mediation. In the event that the Master Association reaches an impasse
with respect to a proposed course of action because Parcel 1 Member and Parcel 2 Member
exercise offsetting votes with respect thereto, Parcel 1 Member and/or Parcel 2 Member inay
serve upon the other Member notice requiring that the matter be mediated pursuant to this
Section 7.
A. Within fifteen (15) days after giving of a notice to mediate, each Member
shall nominate and appoint a mediator and shall notify the other Member in writing of the name
and address of the mediator so chosen (each of which is hereinafter referred to as a "Desi ng ated
Mediator"). Upon the appointment of the Designated Mediators, such mediators shall, within ten
(10) days after their appointment and before exchanging views as to the question at issue,
appoint in writing one additional mediator (referred to as the "Additional Mediator"), and give
written notice of such appointment to the Members.
B. The mediators chosen (i) shall be real estate professionals with at least seven
(7) years experience in dealing with residential housing developments within 25 miles of the
Property and which developments are of the type located at the Property, (ii) shall have both
training and experience as mediators, and (iii) shall be generally available to serve a mediators.
C. The matter which is the subject of the notice to mediate as provided herein
shall be determined by the mediators as set forth in this subparagraph C. Each mediator shall
base its decision with respect to such matter on such mediator's determination as to the long-
term best interests of the Association. The concurring determination of a majority of the
mediators shall be final and binding upon the Members, or in case a majority of the mediators
shall not render a concurring determination, then the determination of the Additional Mediator
_ 1 1 - _317059_2/
shall be final and binding upon the Members. The mediators shall render their decision in
writing and, unless both Members agree otherwise, shall include the findings of fact upon which
their decision is based.
ARTICLE IV
MAINTENANCE AREAS; CERTAIN EASEMENTS; COMMUNITY SYSTEMS
Section 1. Maintenance.
A. The Master Association shall at all times maintain in good repair, operate,
manage and obtain insurance for, and shall replace as often as necessary, the Maintenance Areas,
more particularly on Exhibit "C" hereto, any and all Improvements situated on the Maintenance
Areas (upon completion of construction by Declarant and/or Parcel 2 Developer), all such work
to be done as ordered by the Board of Directors of the Master Association. Maintenance of street
lighting fixtures shall include and extend to payment for electricity or other fuel consumed in
their illumination. Without limiting the generality of the foregoing, the Master Association shall
assume all of Declarant's (and its respective predecessors, if any) as well as Parcel 2 Developer's
responsibility and obligations to the Village and County, their respective governmental and
quasi-governmental subdivisions and similar entities of any kind, with respect to the
Maintenance Areas, including, but not limited to, roads, and shall indemnify Declarant, Parcel 2
Developer, their respective affiliates, and their respective partners, officers, directors, employees
and agents, and hold them harmless with respect thereto. The Maintenance Association, in
accordance with its Articles of Incorporation and Bylaws, shall have the right and power to
adopt, implement and enforce rules and regulations governing, limiting and/or restricting the use
of the Maintenance Areas by any Owner. Notwithstanding anything contained herein to the
contrary, the (i) Maintenance Association (by unanimous affirmative vote of the Board of
Directors), and (ii) Declarant and Parcel 2 Developer, acting jointly, shall have the right to
dedicate portions of the Maintenance Areas to a public or quasi-public governmental body or
utility company, and in such case, the Master Association shall no longer have the responsibility
of maintaining any such areas or the Improvements thereon, unless and until the Master
Association again expressly assumes written responsibility for the maintenance of such areas or
Improvements. By purchasing a Unit and accepting a deed thereto, each Owner of a Unit shall
be deemed to have consented to and to have authorized the dedication of some or all of the
Maintenance Areas to a public or quasi-public governmental body or utility company and shall
be obligated to cooperate with such dedication, including without limitation executing any
documents required by such public or quasi-public governmental body or utility company. Each
Owner of a Unit, and its successors in title, irrevocably appoints each and every present and
future member of the Board of Directors (or Declarant and Parcel 2 Developer acting jointly, as
the case may be) as such Owner's or successor's attorney in fact, coupled with an interest, to
take any steps necessary to convey all or any portion of the Maintenance Areas to a public or
quasi-public governmental body or utility company.
B. In the event of any conflict, ambiguity or uncertainty as to whether certain
maintenance or other duties as to any portion of the Property falls within the jurisdiction of the
Master Association, the determination of the Board of Directors shall control.
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C. All maintenance and services performed or provided by the Master
Association, and its agents or designees, pursuant to this Section and all expenses hereunder shall
be paid by the Master Association through assessments imposed in accordance herewith.
D. No Owner may waive or otherwise escape liability for the assessments for
such maintenance by non-use (either voluntary or involuntary) of the Maintenance Areas or
abandonment of his right to use any portion of the Property which may constitute a Maintenance
Area.
E. As further provided in Article V, Section 7 below, in the event any
maintenance, repair, construction or re-construction of any portion of the Maintenance Areas is
required because of the negligent or willful acts or omissions of an Owner or his guests, tenants,
invitees, or family, such expense shall be borne solely by such Owner and his Plat Parcel, Tract
or Unit, as applicable, which shall be subject to an Individual Assessment for such expense. In
addition to and not in lieu of such assessment, the Master Association has the right, but not the
obligation to enforce any other remedies available to it at law and in equity, against any
responsible party for such negligent or willful acts or omissions.
Section 2. Intentionally omitted.
Section 3. Taxes. The Master Association shall be responsible for the payment of
any taxes related to the Maintenance Areas (subject to protest or appeal before or after payment
of the same), including taxes on any improvements and any personal property thereon accruing
from and after the date this Declaration is recorded, and the payment of such taxes shall be
treated as a General Expense of the Maintenance Association. Notwithstanding the foregoing,
the payment of general real estate taxes and assessments imposed by a governmental authority
constituting a lien or charge on Parcel 2 for the 2006 calendar year shall be prorated between
Declarant and Parcel 2 Developer as of the date Parcel 2 Developer accepts the conveyance of
Parcel 2.
Section 4. Utilities and Communit~ystems Easements. Declarant hereby grants
and conveys the following easements: (i) to Parcel 2 Member, as agent for the Owners of any
portion of Parcel 2, a perpetual, non-exclusive easement over, under, upon and across Parcel 1
for the installation and maintenance of utility lines and Community Systems necessary for the
development of Parcel 2, and (ii) to Parcel 1 Member, as agent for the Owners of any portion of
Parcel 1, a perpetual, non-exclusive easement over, under, upon and across Parcel2 for the
installation and maintenance of utility lines and Community Systems necessary for the
development of Parcel 1. If a proposed utility line or Community System would benefit one
Parcel over the other, the Member whose Parcel would so benefit from the utility line or
Community System (the "Benefited Party"), will not be entitled to exercise its rights under the
easement granted hereunder unless (i) said utility and/or Community System is reasonably
needed by such Benefited Party for the development of its Parcel, and (ii) such Benefited Party
has exhausted all efforts to locate the utility line or Community System so that its installation and
maintenance burdens solely the Benefited Party's Parcel. If Parcel 1 Member or Parcel2
Member exercises any rights with respect to the reciprocal easements granted and reserved
herein, such Member will (i) provide notice to the other Member prior to entry onto such Parcel
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and will take all actions necessary or appropriate so as to burden the other Parcel in the most
minimal way possible, (ii) install such utility line or Community System at a location as may be
reasonably requested by the other Member, (iii) perform or cause to be performed all work in
connection with such easement at its sole cost and expense in accordance with applicable laws,
and upon the completion thereof, repair and restore the property disturbed by such work to its
condition immediately prior to such work; and (iv} provide appropriate evidence of insurance
reasonably acceptable to the other Member prior to entry upon such Member's Parcel.
Notwithstanding the foregoing, Benefited Party shall have no right to locate utility lines or
Community Systems on, over or under any existing structure on the other Parcel.
Section 5. Easement for Roadway Use. Declarant hereby imposes, creates, reserves,
grants and conveys to each Owner, and any tenants, guests or invitees thereof, a perpetual, non-
exclusive easement for pedestrian and vehicular passage in, over and through the interior
roadways and sidewalks included in the Common Facilities, as a means of access to each Parcel
and applicable Plat Parcel, Tract and Unit located thereon.
Section 6. Easement for Utility Tie In. Declarant hereby imposes, creates, reserves,
grants and conveys to each Member, as agent for the Owners of each Member's respective
Parcel, a perpetual, non-exclusive easement upon, across, over and under the Common Entrance
Roadway for the installation and use (including the right to tie into, subject to there being
available capacity to service both Parcels) the Utility Facilities.
Section 7. Loxahatchee River Environmental Control District.
A. Each Owner covenants and agrees that his Plat Parcel, Tract or Unit, as the
case may be, is located within the jurisdiction of the Loxahatchee River Environmental Control
District (the "LRECD") and which LRECD has contracted with Declarant, as owner of the
Property to reserve service availability for physical connections to a regional wastewater system
upon construction of the buildings, Units and other improvements contemplated to be
constructed on the Property.
B. Declarant agrees that, upon demand, it shall grant and convey to the LRECD,
all required easements and rights-of--way in the Property as the LRECD may, from time to time,
request, based upon the criteria of utilization for utility purposes related to water, wastewater,
LQ. water and stormwater.
C. [OPEN: The parties need to understand how assessments by the LRECD
are billed and whether such charges appear on an individual unit owner's tax bill] The
Maintenance Association shall be responsible for paying the fees imposed by the LRECD for the
use of the regional wastewater system. Each Member shall reimburse the Maintenance
Association for any charges unposed by the LRECD which are directly attributable to its Parcel.
In the event that a charge by the LRECD is attributable to both Parcels, Parcel 1 Member will
reimburse the Maintenance Association fora 59/151 share of such charge, and Parcel 2 Member
will reimburse the Maintenance Association fora 92/151 share of such charge. Each Owner
understands and agrees that the LRECD shall have a lien on the Property and Units serviced by it
for all charges, until paid, for services provided to the Property and/or Units by the LRECD,
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together with connection fees associated therewith, which lien shall be prior to all other liens,
except that such lien shall be on parity with the lien of the state, county and municipal taxes, and
any lien for charges for services created pursuant to Chapter 159.17, Florida Statutes. Such lien
shall be perfected by the LRECD by recording in the Official Records of Palm Beach County,
Florida, a claim of lien in form substantially as provided in Section 713.08, Florida Statutes. A
copy of the claim of lien shall be served as provided in Section 713, Florida Statutes, within ten
(10) days after the claim of lien is recorded. If thirty (30) days after service has been made, liens
created under this section remain delinquent, such liens may be foreclosed by the LRECD in the
manner provided by the laws of Florida for the foreclosure of mortgages on real property, and
the LRECD shall be entitled to reasonable interest and attonley's fees and other court costs.
[Are the last two sentences necessary and do they give the LRECD more rights than it
would typically have under the law?]
Section 8. Public Easements. Fire, police and other emergency personnel and
vehicles shall have a permanent and perpetual non-exclusive easement for ingress and egress
over and across the Maintenance Areas in the performance of their respective duties.
Section 9. SFWMD Drainage Easements.
A. Non-exclusive easements are hereby granted by Declarant for the maintenance
of the Surface Water Management System which shall exist in favor of the Master Association
and SFWMD. Within these easement areas, no structure, planting or other material, other than
sod, shall be placed or permitted to remain which may interfere with such maintenance, or which
may obstruct or retard the flow of storm water. Notwithstanding the foregoing, sod and other
plantings shall be permitted within such areas if the area is one which covers a buried pipeline,
and over which no surface drainage is to be maintained. The Master Association and SFWMD
shall have access to all such areas which are part of the Surface Water Management System, for
the purpose of operation and of maintenance thereof and shall not be held liable for any damage
to or removal of any plantings caused by such operation and maintenance activities.
B. Each Plat Parcel, Tract and all Maintenance Areas shall enjoy and shall be
subject to a perpetual, non-exclusive cross easement of drainage and flowage in favor of any
adjacent Plat Parcel(s), Tracts and Maintenance Areas over those portions of the Property which
constitute a part of the Surface Water Management System and no Owner >nay construct or
permit any Improvement or other structure or condition to exist upon his Plat Parcel, Tract or
Unit which will interfere with the use of the Surface Water Management System by any other
Owner.
Section 10. South Florida Water Management District. Declarant, the Parcel 2
Developer by accepting conveyance of title to Parcel 2, the Master Association, and its Members
acknowledge that SFWMD has the right to take enforcement action, including civil action for an
injunction and penalties, against the Master Association to compel it to correct any outstanding
problems with the Surface Water Management System facilities or in mitigation or conservation
areas under the responsibility or control of the Master Association, if any. Further provided
however, the Master Association and the SFWMD shall have equal and independent rights to
enforce any and all of the covenants and restrictions set forth in the Declaration which apply to
- 15 - 317059 2/
or are designed to protect the Surface Water Management System. Enforcement of these
covenants and restrictions shall be by any proceeding at law or in equity against any person or
persons violating or attempting to violate any covenant or restriction, and may seek to restrain
violation or to recover damages against the Plat Parcels, Tracts, Units and Owners thereof which
violate any of the provisions of this Declaration. Failure by the Master Association, or the
SFWMD to enforce any covenant or restriction herein contained shall in no event be deemed a
waiver of the right to do so thereafter, nor shall such failure to so enforce create any liability on
the part of the Master Association, or the SFWMD. In any action or proceeding under this
Section, the prevailing party shall be entitled to recover its costs and reasonable attorney's fees
including attorneys' fees and costs on appeal.
Section 11. Master Association Easements. There is hereby created an easement in
favor of the Master Association, and/or the ARB, and/or the employees and agents thereof and
any management entity contracted by the Master Association, as appropriate, and their applicable
designees, over each Plat Parcel and Tract, including without limitation, the Maintenance Areas
therein, for the purpose of performing the Master Association's obligations to maintain, repair
and replace such Maintenance Areas and the improvements therein, and to enforce the covenants
in this Declaration, including but not limited to the provisions of Article IX hereof regarding the
ARB and all standards, rules or regulations promulgated pursuant to this Declaration.
Parcel 1 Member and Parcel 2 Member, each as indemnitor ("Indemnitor"), hereby
indeimnify each other and Declarant and Parcel 2 Developer as indemnitees fromm claims or other
liabilities resulting from damage to property or injury to or death to persons which is caused by
the exercise by the Indemnitor or any of its Owners of their rights under the easements set forth
in Sections 4, 5 and 6 of this Article VI.
Section 12. Easements Appurtenant. The easements provided herein shall be
appurtenant to and shall pass with the title to each Parcel, Plat Parcel, Tract and Unit.
Section 13. Use and Enioyment of Easements. Notwithstanding anything to the
contrary contained herein, the exercise of a Person's rights under any easement granted pursuant
to this Article IV shall be subject to the following:
A. Easements granted herein for the purposes of the Master Association
performing its obligations hereunder and for the purposes of enforcing the covenants,
restrictions, rules or regulations of the Master Association from time to time;
B. The right and duty of the Master Association to levy and collect Assessments
for the purpose of paying the General Expenses in compliance with the provisions of this
Declaration;
C. The right of the Master Association to adopt, at any time and from time to
time, and to enforce rules and regulations governing the use of the Maintenance Areas; and
D. The right of the Maintenance Association or Declarant and Parcel 2 Developer
acting jointly to dedicate portions of the Maintenance Areas to public or quasi-public
governmental bodies, as provided in Section 1(A) of this Article IV.
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ARTICLE V
COVENANT FOR MAINTENANCE ASSESSMENTS
Section 1. Purpose of Assessments. The assessments levied by the Master
Association shall be used for carrying out any lawful purpose of the Master Association as
provided in this Declaration, Articles or Bylaws, including but not limited to the improvement,
maintenance, repair, replacement, enhancement and operation of the Maintenance Areas (which
include, certain landscaped right of way areas adjacent to the Property as more particularly
described on Exhibit C hereto) and to provide services which the Master Association is
authorized or required to provide including, but not limited to, the payment of insurance,
constructing improvements, repair, replacement, payment of the cost to acquire labor, equipment,
materials, management and supervision necessary to carry out its authorized functions, and for
the payment of principal, interest and any other charges com~ected with loans made to or
assumed by the Master Association for the purpose of enabling the Master Association to
perform its authorized or required functions. The Master Association may establish reserve
funds and/or contingency funds to be held in an interest bearing account or investments as a
reserve for (a) major rehabilitation or major repairs and deferred maintenance, (b) for emergency
and other repairs required as a result of storm, fire, natural disaster or casualty loss, and (c) for
such other purposes as specifically determined by the Board of Directors of the Master
Association.
Section 2. Determination of Assessments. The Parcel 1 Member and Parcel 2
Member collectively shall pay the Master Association the Annual Assessment for the General
Expenses of the Master Association (which General Expenses shall include but not be limited to,
maintenance, operation, management and insurance of the Maintenance Areas and the Master
Association as provided herein, including, but not limited to the Maintenance Areas whether or
not such items are owned by aSub-Association or otherwise, including such reasonable reserves
as the Maintenance Association may deem necessary, and capital improvement assessment as
provided herein, all such assessments to be fixed, established and collected from tune to time as
hereinafter provided). Such Annual Assessment shall be allocated among Parcel 1 Member and
Parcel 2 Member as follows: (i) Parcel 1 Member will pay a 59/151 share of such Annual
Assessment (the "Parcel One Share"); and (ii) Parcel 2 Member will pay a 92/151 share of such
Annual Assessment (the "Parcel Two Share"). In the event there is more than one unit owners'
association on a Parcel, and, as to Parcel 1, if there are any non-condominium residences on such
Parcel, such unit owners' associations together with the owners of the non-condomminium
residences as to Parcel 1 will collectively pay the amounts set forth above, and the formula for
calculation of each Unit Owner's share of the Assessments for such Parcel shall be determined
by the applicable Parcel Member and Unit Owners of such Parcel. Should the Master
Association become the Owner of any Unit(s), the Assessment which would otherwise be due
and payable to the Master Association by the Owner(s) of such Unit(s) shall be apportioned and
the Assessment therefor levied ratably in accordance with the above formula among the Owners
of all Units which are not owned by the Master Association. Further, notwithstanding anything
to the contrary contained elsewhere in this Declaration, any Parcels, Plat Parcels, Tracts or Units
owned by the Declarant or Parcel 2 Developer or their respective affiliates shall not be subject to
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Assessments for capital improvements without the Declarant's or Parcel 2 Developer's prior
written consent, as applicable.
Section 3. Time for Payment. The Assessments levied against a Member shall be
payable in quarterly, monthly, or such other installments and at such time as shall from time to
time be fixed by the Board of Directors, and the due date of any Assessment shall be fixed in the
Board resolution authorizing the Assessment.
Section 4. Annual Budget of General Expenses. The Board of the Master
Association shall prepare and adopt an Annual Budget at a meeting of the Board to be held not
less than thirty (30) days in advance of the commencement of each fiscal year. The Annual
Budget shall project the estimated total expenditures for the services that are to be provided by
the Master Association and other expenses of the Master Association in the performance of its
functions, duties and responsibilities under this Declaration, the Articles and Bylaws of the
Master Association. The Master Association shall, at the same tune as it prepares the Annual
Budget, prepare a schedule which sets forth the Annual Assessment pursuant to the Annual
Budget.
Section 5. Special Assessments. To the extent that the Annual Assessment is
insufficient to fund the services which the Master Association is authorized or required to
provide, the Master Association, through its Board of Directors, shall have the power and
authority, from time to time, to levy and collect a Special Assessment to cover the cost thereof in
accordance with the provisions of this Declaration and the Articles and Bylaws of the Master
Association. Such Special Assessments may be levied and collected for repairs, services,
replacements or betterments necessary to be performed in the event of a casualty, catastrophe,
Act of God or other unforeseen expenses of an emergency nature incurred by the Master
Association, the acquisition of real or personal property by the Master Association; payment, in
whole or in part, of the cost of construction of capital improvements to the Property; the cost of
construction, reconstruction, unexpected repair or replacement of a capital improvement,
including the necessary fixtures and personal property related thereto; the cost of maintenance or
repair of any property which the Master Association is obligated to maintain hereunder; the
expense of indemnification of each director and officer of the Master Association; and such other
purposes deemed appropriate by the Board of Directors. Parcel 1 Member and Parcel 2 Member
shall collectively pay any Special Assessment, and such Special Assessment shall be allocated
between Parcel 1 Member and Parcel 2 Member, on the same basis as Aggregate Assessments
described in Article V, Section 2 of this Declaration, and shall be collectable in such manner as
the Board of Directors shall determine. All notices of Special Assessments from the Master
Association to Parcel 1 Member and Parcel 2 Member shall designate the amount thereof and the
date when due. The funds collected pursuant to a Special Assessment shall be used only for the
specific purpose or purposes set forth in such notice. However, upon completion of such specific
purpose or purposes, any excess funds will be considered common surplus, and may, at the
discretion of the Board, be applied as a credit towards future Assessments.
Section 6. Creation of Lien With Respect to Annual and Special Assessments. The
Annual and Special Assessments, together with late charges, interest and costs of collection
thereof as hereinafter provided, shall be charges on the land, and the Maintenance Association
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shall have a lien against each Unit and, if such Unit is in a condominium, its appurtenant
undivided interest in the coimnon elements of the applicable condominium, in the following
amounts in order to secure payment of Annual Assessments and Special Assessments: (i) with
respect to Parcel 1, the Maintenance Association shall have a lien against each Unit located on
Parcel 1 equal to the sum of the Parcel One Share plus all unpaid assessments with respect
thereto which may accrue subsequent to the recording of the claim of lien and prior to the entry
of a final judgment of foreclosure, plus any late charges, interest and all reasonable costs of
collection and attorney's fees incurred by the Maintenance Association incident to the collection
process; and (ii) with respect to Parcel 2, the Maintenance Association shall have a lien against
each Unit located on Parcel 2 equal to the Parcel Two Share plus all unpaid assessments with
respect thereto which may accrue subsequent to the recording of the claim of lien and prior to the
entry of a final judgment of foreclosure, plus any late charges, interest and all reasonable costs of
collection and attorney's fees incurred by the Maintenance Association incident to the collection
process.
Section 7. Individual Assessments. The Owners shall not obstruct the Maintenance
Areas or make any use such Maintenance Areas which is detrimental or inconsistent with the
proper use thereof, including but not limited to damaging any of the Maintenance Areas existing
therein. The Master Association, through its Board of Directors, shall have the power and
authority, from time to time, to fix, levy and collect individual assessments ("Individual
Assessments") against an Owner for the cost of repairs or replacements within the Property for
damage to any portion of the Maintenance Areas as a result of intentional acts, misuse or
negligence of an Owner or for which the Owner is otherwise responsible, as determined by the
Board. Individual Assessments shall be collectible in such a manner as the Board of Directors
shall determine. The Master Association may also levy Individual Assessments against any
Owners who have caused the Master Association to incur special expenses due to willful or
negligent acts of said Owners or their families or guests. The Master Association shall have the
right to file a lien against the Unit, Plat Parcel or Tract of any Owner not paying any assessment
when due and may foreclose such lien as well as pursue any other remedies available to the
Master Association, including but not limited to, those available under this Declaration, the
Articles and Bylaws, as the same may be amended from time to time. Individual Assessments
may include a surcharge for administrative expenses incurred as elsewhere provided in this
Declaration.
Section 8. Personal Obligation for Assessments. Each Owner, upon becoming an
Owner of any Unit, Plat Parcel or Tract and the acceptance of a deed therefore, whether or not it
shall be so expressed in any such deed, other conveyance or hereunder, shall be deemed to
covenant and agree to the enforcement of all Assessments in the manner specified in this
Declaration, and to pay to the Master Association the amount of any Assessment imposed
against such Owner's Unit, Plat Parcel or Tract in the event that the same is not paid when due
by Parcel 1 Member or Parcel 2 Member, as applicable. Each such Assessment, together with
late charges, interest, and cost of collection thereof as hereinafter provided, shall be the personal
obligation of all Owner(s) of such property from time to time.
Section 9. Reserve Funds. The Declarant and Parcel 2 Developer and subsequent
Parcel 1 and Parcel 2 Members may vote to waive the reserves, if any, or reduce funding of the
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reserves. The Board, in establishing each annual budget, may include therein sums to be
collected and maintained as reserves for capital expenditures and deferred maintenance for
Maintenance Areas and personal property held for the joint use and benefit of the Members.
Section 10. Contingency Funds. In addition to reserves, if any, established pursuant to
Section 9 hereof, the Board, when establishing each Annual Budget may, when deemed
necessary or desirable, include therein a sum or sums to be collected and maintained as
contingency funds to provide a measure of financial stability during periods of special stress
when such sums may be used to meet deficiencies from time to time existing as a result of
delinquent payment of Assessments by Members or Owners, as the case may be, as a result of
emergencies or for other reason placing financial stress upon the Maintenance Association. The
annual amount allocated to such contingency funds and collected therefor, except as required by
law, shall not exceed twenty-five percent (25%) of the current Aggregate Assessment levied
against the Members or all Owners, as the case may be. Upon accrual in the contingency funds
of an amount equal to twenty-five percent (25%) of the current Aggregate Assessment, unless
and except to the extent required by law, no further payments shall be collected from Members
or Owners, as the case may be, as a contribution to such contingency funds, unless they shall be
reduced below the twenty-five percent (25%) level, in which event, the Aggregate Assessment
against each Member, Owner and/or Unit, Tract or Plat Parcel, as applicable, may be increased
to restore the contingency funds to an amount which will equal twenty-five percent (25%) of the
current annual amount of said Assessment. The Members may call a special meeting of the
Master Association or the Members may raise issues pertaining to the contingency funds at a
meeting of the Master Association as provided for in the Bylaws. Upon the affirmative vote of a
majority of the Members, the Master Association may elect to reduce the levels of the
contingency funds below those stated above.
Section 11. Use of Maintenance Association Funds. All monies collected by the
Maintenance Association shall be treated as the separate property of the Maintenance
Association. Such monies may be applied by the Maintenance Association to the payment of
any expense of operating and managing the Maintenance Association or the proper undertaking
of all acts and duties imposed upon the Maintenance Association by virtue of this Declaration,
the Articles of Incorporation and Bylaws. All the monies for Aggregate Assessments paid to the
Maintenance Association by any Member and/or Owner inay be commingled with monies paid
to the Maintenance Association by other Members and/or Owner. All funds and other assets of
the Maintenance Association, and any increments thereto or profits derived therefrom or from
the leasing or use of Maintenance Areas, shall be held for the benefit of the Members of the
Maintenance Association.
Section 12. Delinquency or Default. The payment of any Assessment or installment
thereof due to the Master Association shall be in default if not paid to the Association on or
before the date due. When in default, the delinquent Assessments or installments thereof shall
bear interest from the date due at the highest rate permitted by law until the same, and all interest
due thereon, has been paid in full. In addition, when the payment of Assessments is in default,
the Master Association shall have the right to accelerate future Assessments which would not
otherwise be due and payable.
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Section 13. Liability Not Subject to Waiver. No Owner may exempt himself from
liability for any Assessment levied against such Owner and his Unit by waiver of the use or
enjoyment of any of the Maintenance Areas, abandonment of the Unit, or in any other manner.
Section 14. Recording and Priority of Lien. Any lien of the Maintenance Association
shall be effective from and relate back to the recording in the Public Records of the County of
this Declaration. However, as to first mortgages of record, such liens are effective from and after
the recording of a claim of lien as hereinafter described. The Maintenance Association shall file
a claim of lien stating the Unit encumbered thereby, the name of the record Owner, the name and
address of the Maintenance Association, the amount due to the Maintenance Association, and the
date such amount was due. The claim of lien shall secure the amounts set forth in Section 6
above. Such claim of lien shall be signed by an officer or agent of the Maintenance Association.
Upon full payment of all sums secured by such claim of lien, the same shall be satisfied of
record. The lien of the Maintenance Association shall be subordinate in the following order of
priority to (a) ad valorem tax liens; and (b) the lien of any first mortgage held by an Institutional
Mortgagee, subject, however, to the liability of such mortgagee for Assessments as provided by
applicable law. Ad valorem taxes, benefit taxes and special assessments by taxing authorities
shall be assessed against each Unit and its appurtenant undivided interest in the common
elements of the applicable condominium. Such taxes and assessments shall constitute a lien only
upon the Unit and its appurtenant undivided interest in the common elements of any applicable
condominium. Liens for assessments under this Article shall be superior to liens for assessments
of the Sub-Associations which may be referred to in declarations of condominium or of
restrictions and protective covenants recorded with respect to certain Units.
Section 15. Effect of Foreclosure or Judicial Sale. In the event that any person, firm
or corporation shall acquire title to any Unit and its appurtenant undivided interest in the
common elements of any applicable condominium by virtue of any foreclosure or judicial sale or
any transfer in lieu thereof, then such person, firm or corporation so acquiring title shall be liable
and obligated for any Assessments commencing on the date of acquiring title. Any Assessments
as to which the party so acquiring title shall not be liable shall be absorbed and paid by the
Members as a part of the General Expense, in accordance with the formula set forth in this
Article V, Section 6, although nothing herein contained shall be construed as releasing the party
personally liable for such delinquent Assessment from the payment thereof or the enforcement of
collection of such payment by means other than foreclosure.
Section 16. Effect of Voluntary Transfer. When the Owner of any Unit proposes to
lease, sell or mortgage the same, the Maintenance Association, upon written request of the
Owner of such Unit, shall furnish within 15 days after receipt of such written request, to the
proposed lessee, purchaser or mortgagee, a statement stating all Assessments and other monies
which are due and payable to the Maintenance Association by the Owner of such Unit (or the
corresponding Member with respect thereto, as the case may be). Such statement shall be
executed by any officer of the Maintenance Association and any lessee, purchaser or mortgagee
may rely upon such statement in concluding the proposed lease, purchase or mortgage
transaction, and the Maintenance Association shall be bound by such statement.
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In the event that a Unit is to be leased, sold or mortgaged at the time when payment of
any Assessment against the Owner and the Unit which is due to the Maintenance Association is
in default (whether or not a claim of lien has been recorded by the Maintenance Association},
then the rent, sale proceeds or mortgage proceeds, as the case may be, shall be applied by the
lessee, purchaser or mortgagee in the following order: (a) first to the payment of any then
delinquent Assessment or installment thereof due to the Maintenance Association; and (b)
second, payment of the balance of such rent, proceeds of sale or mortgage to the Owner of the
Unit responsible for payment of such delinquent Assessment.
In any transfer of title of a Unit, the grantee shall be jointly and severally liable with the
grantor for all unpaid Assessments against the grantor made prior to the tune of such transfer of
title, without prejudice to the rights of the grantee to recover from the grantor the amounts paid
by the grantee therefor. In addition, if the amount due is not paid by the grantor, the grantee
shall pay the amount owed to the Maintenance Association within thirty (30) days after transfer
of title.
Section 17. No Election of Remedies. All rights, remedies and privileges granted to
the Maintenance Association, the Declarant, Parcel2 Developer, any other Member, or any
Owner pursuant this Declaration, the Articles of Incorporation, Bylaws and(or) any rules and
regulations promulgated by the Board of Directors from time to time, shall be deemed to be
cumulative, and the exercise of any one or more shall not be deemed to constitute an election of
remedies, nor shall it preclude the party thus exercising the same from exercising such other and
additional rights, remedies, or privileges as may be available to such party at law or in equity.
Section 18. Responsibility for Master Association• Assessments By Sub-Associations.
Although each Owner shall be personally obligated for the payment of Individual Assessments
pursuant to this Declaration, in the event there is formed or created Sub-Association(s) at any
time in the future, the Master Association inay, subject to the immediately following sentence,
collect any such Individual Assessments from the Owners through the Sub-Association(s) which
shall in turn collect such Assessments and remit the same to the Master Association in the same
time periods required for payment directly by the Owner. In no manner shall the Master
Association be obligated to utilize the Sub-Association as its collection agent, but may do so at
its option and by written direction to the Sub-Association at the time of levying of the applicable
Individual Assessment, provided that such Sub-Association shall consent to its utilization as
collection agent, which consent may be granted or withheld by such Sub-Association in its sole
discretion. In no manner shall the collection of Assessments through Sub-Association(s) be
deemed to obviate or waive any rights or remedies of the Master Association to proceed directly
against such Owner in the event of failure of such Owner to pay any Individual Assessment
levied by the Master Association pursuant to this Declaration.
Section 19. Certain Exempt Property. No common areas or common elements of a
Sub-Association shall be subject to direct assessment hereunder (although the share of common
elements appurtenant to a condominium Unit shall be subject to the lien for Assessments
applicable to such Unit). The foregoing exemption shall apply to any land owned by a
governmental entity or publicly-regulated utility company (including, for example, without
limitation, Florida Power and Light Co., Bell South and South Florida Water Management
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District) as long as such land is used for or in connection with the provision of utilities (exclusive
of business offices, retail outlets and the like). In the event of any ambiguity or doubt as to
whether any particular open space or other land is subject to assessment, the determination of the
Declarant and Parcel 2 Developer (or if the Declarant and Parcel 2 Developer are no longer
members of the Master Association, then the Board of Directors of the Master Association) shall
be final and conclusive (and not subject to later change unless the use of the open space in
question changes).
Unless delegated to aSub-Association by the Master Association (and such delegation is
assumed in writing by aSub-Association), it shall be legal duty and responsibility of the Master
Association to enforce payment of all Assessments hereunder. Failure of a collecting entity to
send or deliver bills or notices of Assessments shall not, however, relieve Members or Owners
from their payment obligations hereunder, including late fees, interest, attorneys fees and costs.
All Assessments, late charges, interest, penalties, fines, attonley's fees and other sums
provided for herein shall accrue to the benefit of the Master Association.
The Master Association shall have such other remedies for collection and enforcement of
assessments as may be permitted by applicable law. All remedies are intended to be, and shall
be, cumulative.
Section 20. Collection of Assessments. Assessments levied pursuant hereto shall be
collected in the manner established pursuant to this Declaration. In the event any Sub-
Association assumes the responsibility for collection of Master Association Assessments as
provided in the second paragraph of Section 19 above, the provisions of this Declaration shall
govern, and all references herein to collection (but not necessarily enforcement) by the Master
Association shall be deemed to refer to the Sub-Association performing such collection duties
and the obligations of Owners to pay Assessments shall be satisfied by making such payments to
the applicable Sub-Association. In the event only a portion of the assessments of the Master
Association and aSub-Association are collected where collection is attempted by one entity for
both, the amount collected shall be applied first to Assessments of the Master Association and
the balance, if any, shall then be paid to such Sub-Association. The amount collected shall be
applied in order of the age of the Assessment with application first to the oldest delinquent
Assessment, where collection is made by one entity for both. In addition, fees collected for
Master Association Assessments shall be applied in the following order: fees and costs of
collection, late charges, interest and Assessments.
When all Units, Tracts and Plat Parcels within Parcel 1 or Parcel 2 are sold and conveyed
by Declarant or Parcel 2 Developer, as applicable, to subsequent purchasers, neither the
Declarant nor Parcel 2 Developer, as applicable, nor any of their respective affiliates shall have
further liability of any kind to the Master Association for the payment of Assessments, or
contributions, whatsoever. Declarant and Parcel 2 Developer shall have no obligation to fund
reserves, of any kind, for the Master Association at any time.
Section 21. Working Capital Contribution. Each initial purchaser of a Unit (other than
a Declarant or Parcel 2 Developerdesignated builder or developer purchasing for construction
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and resale, if any) shall pay to the Master Association prior to obtaining approval of a proposed
purchase and sale transaction or other transfer of title to a Unit, a one time only working capital
contribution, the amount of which shall be determined by the Board in its discretion, from time
to tune. The use and expenditure of Working Capital Contributions shall be deter>ined by the
Board of Directors, in its discretion.
Section 22. Master Association Funds. The portions of all Aggregate Assessments
collected by the Master Association for reserves for future expenses for contingency funds, and
the entire amount of all Special Assessments, shall be held by the Master Association and may
be invested in interest bearing accounts or in certificates of deposit, money market accounts or
other like instruments or accounts available at banks or savings and loan institutions, the deposits
of which are insured by an agency of the United States of A>nerica.
ARTICLE VI
MAINTENANCE OF UNITS, TRACTS AND PARCELS
The following maintenance provisions concerning Units, Tracts and Plat Parcels within
the Property are intended to describe those maintenance obligations of Owners as to their
respective Plat Parcels, Tracts and Units. In addition to the maintenance obligations and
responsibilities described in this Article and in other provisions of this Declaration, the Articles
and Bylaws, such maintenance responsibilities as may be imposed by aSub-Association shall be
in addition to and not in lieu of the maintenance responsibilities of Owners described herein.
Notwithstanding the foregoing, the provisions of this Article VI shall not apply to the Declarant,
Parcel 2 Developer, or to any of their respective designees, or to any construction at the Property
performed by Declarant and/or Parcel 2 Developer in connection with the development of the
Parcels for residential housing, or to any Tract, Plat Parcel, Unit or other property owned by
Declarant, Parcel 2 Developer, or their respective designees.
Section 1. Sub-Associations. All of the requirements, obligations and remedies set
forth in this Article shall apply to all Sub-Associations and their common areas or common
elements and all improvements thereto. Accordingly, as applied to aSub-Association, the term
Owner as used in this Article shall be deemed to include the Sub-Association (even if it does not
hold legal title to its common areas and common elements) and the terms Plat Parcel, Tract and
Unit shall be deemed to include aSub-Association's common areas and common elements and
all improvements thereto. Any costs of remedial work or surcharge thereon applicable to a Sub-
Association shall be paid directly by the Sub-Association, failing which the Master Association
may, in addition to all other available legal and equitable remedies, withhold the amount of same
from amounts collected on behalf of the Sub-Association, if any, and the Master Association is
hereby granted a lien on such amounts for such purposes. Notwithstanding the foregoing,
nothing contained in this Declaration shall be deemed to obligate the Master Association to act
as a collection agent for any Sub-Association or the Master Association.
Section 2. Exteriors of Units and Buildings. Each Owner shall maintain or cause to
be maintained all structures (including all Units and buildings) he owns in a neat, orderly and
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attractive manner and consistent with the general appearance of the Property as determined by
the Board which may delegate that task to the ARB. The minimum (though not sole) standard
for the foregoing shall be consistency and compatibility with the general appearance of the
developed portions of the Community and, as to each Plat Parcel and/or Tract, the portion
thereof upon which the Unit is located including landscaping. Each Owner shall repaint, restain,
or refinish, as appropriate, the exterior portions of his Unit or building (with the same colors and
materials as initially used or approved by Declarant and/or Parcel 2 Developer and/or the
"ARB') as often as is necessary to comply with the foregoing standards.
Section 3. Parcels and Tracts. Each Owner shall maintain the trees, shrubbery, grass
and other landscaping, landscape irrigation, and all parking, pedestrian, recreational and other
open areas, on his Tract and/or Plat Parcel in a neat, functioning orderly and attractive manner
and consistent with the general appearance of the developed portions of the Property. Each
Owner of a Tract and/or Plat Parcel shall maintain all lawns and landscaping thereon. The
minimum (though not sole) standard for the foregoing shall be the general appearance of the
Property (and the applicable portion thereof as aforesaid) as initially landscaped (such standard
being subject to being automatically raised by virtue of the natural and orderly growth and
maturation of applicable landscaping, as properly trimmed and maintained).
The Board of Directors shall have the power, but not the obligation, to adopt minimum
maintenance standards in comiection with each Tract and Plat Parcel and Improvements located
thereon. Such standards shall be in addition to those obligations of Owners as stated in this
Article VI and may be changed from time to time by the Board of Directors, in its sole
discretion. Any minimum maintenance standards established pursuant to this Article VI need
not be recorded.
Section 4. Remedies for Noncompliance. In the event of the failure of an Owner to
maintain or cause to be maintained, his Unit, any building, Tract or Plat Parcel in accordance
with this Article, the Master Association shall have the right, but not the obligation, upon five (5)
days, prior written notice to the Owner at the address for such Owner last appearing in the
records of the Master Association, to enter upon the Owner's Tract, Plat Parcel or Unit and
perform such work as is necessary to bring the Tract, Plat Parcel or Unit, as applicable, into
compliance with the standards set forth in this Article and as may be determined by the Board of
Directors from time to time. The remedies provided for herein shall be cumulative with all other
remedies available under this Declaration, or other applicable covenants or deed restrictions
(including, without limitation, the imposition of fines or special assessments or the filing of legal
or equitable actions, the filing of liens for this work plus attorneys' fees and costs).
Section 5. Costs of Remedial Work; Surcharges. In the event that the Master
Association performs any remedial work on a Unit, building, Tract or Plat Parcel pursuant to this
Declaration or any Supplemental Declaration, the costs and expenses thereof shall be deemed an
Individual Assessment under this Declaration and may be immediately imposed by the Board of
Directors or its designee. In order to discourage Owners from abandoning certain duties
hereunder for the purpose of requiring one of the aforesaid entities to assume same, and,
additionally, to reimburse same for administrative expenses incurred, the applicable entity may
impose a surcharge of not more than fifty percent (50%) of the cost of the applicable remedial
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work (or the maximum amount permitted by applicable law, whichever is less), such surcharge
to be a part of the aforesaid Individual Assessment. No bids need be obtained for any of the
work performed pursuant to this Article and the person(s) or company performing such work
may be selected by the applicable enforcing entity in its sole discretion without requirement of
any bonds whether fidelity, labor, materials, payment or performance. Every Owner agrees for
himself and family members that they will hold harmless the Master Association, its officers,
directors, agents and employees from any action undertaken pursuant to this Section.
Section 6. Right of Entry. There is hereby created an easement in favor of the
Master Association, as appropriate, and their applicable designees, over each Tract and Plat
Parcel for the purpose of entering onto the Tract and Plat Parcel in the performance of the work
herein described, provided that the notice requirements of this Article are complied with and any
such entry is during reasonable hours.
ARTICLE VII
CERTAIN RESTRICTIONS, RULES AND REGULATIONS
Section 1. Applicability. The provisions of this Article shall be applicable to the
Property (or that portion thereof as may hereinafter be specified) and the use thereof but shall not
be applicable to the Declarant, the Parcel 2 Developer, or any of their respective designees, or to
any construction at the Property performed by Declarant and/or Parcel 2 Developer in connection
with the development of the Parcels for residential housing, or any Parcel, Tract, Plat Parcel,
Unit or other property owned by Declarant, the Parcel 2 Developer, or their respective designees.
If requested by any interested party, Declarant and/or Parcel 2 Developer, as applicable,
shall give a written statement as to whether any particular person or entity is exempt from the
provisions of this Article and to what property and for what period of trine such exemption
applies. The party receiving such statement shall be entitled to rely thereon and such statement
shall be binding on Declarant and/or Parcel 2 Developer, as applicable, the Master Association,
all Sub-Associations and all other relevant persons and entities.
Section 2. Sub-Associations. All of the restrictions, requirements and obligations set
forth in this Article shall apply to all Sub-Associations, if and when such Sub-Associations come
into existence, and to their common areas, common elements (and all improvements thereto) and
their uses of all or any portions of the Property. Accordingly, as applied to aSub-Association,
the term Owner as used in this Article shall be deemed to include the Sub-Association (even if it
does not hold legal title to its common areas or common elements), the terms Plat Parcel, Tract
and Unit shall be deemed to include aSub-Association's common areas or common elements
(and all improvements thereto) and references to activities or practices of Owners shall be
deemed to include activities or practices of the Sub-Association (regardless of where same
occur).
Section 3. Land Use and Building Type. No Parcel, Plat Parcel, Tract or Unit shall
be used except for residential purposes. No building constructed on a Parcel or Tract shall be
used except for residential purposes, except for such ancillary or other commercial uses as
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applicable zoning codes and other laws and ordinances may permit to be made of portions of
otherwise residential buildings. However, without limiting the generality of the foregoing,
temporary uses by Declarant and/or Parcel 2 Developer and their respective designees for model
homes, sales displays, parking lots, sales offices and other offices, or any one or any combination
of such uses, shall be permitted until permanent cessation of such uses takes place. No changes
may be made to buildings erected or approved by the Declarant and/or Parcel 2 Developer
(except if such changes are made by the Declarant and/or Parcel 2 Developer, as applicable)
without the written consent of Declarant and/or Parcel 2 Developer, as applicable, or the ARB, as
appropriate and as provided herein.
Section 4. Easements. Easements for installation and maintenance of utilities and
Community Systems are reserved as shown on the Plat and as provided herein. The area of each
Tract and Plat Parcel covered by an easement and all improvements in such easement area shall
be maintained continuously by the Owner of the Tract or Plat Parcel, except as provided herein
to the contrary and except for installations for which a public authority or utility company is
responsible. In addition to those easements more particularly described in Article IV hereof, the
appropriate water and sewer authority, electric utility company, telephone company, and the
applicable Sub-Association (with respect to the Parcel on which the same are located) shall have
a perpetual easement for the installation and maintenance, all underground, unless the ARB
approves otherwise in writing, of water lines, sanitary sewers, storm drains, and electric,
telephone and Community Systems lines, cables and conduits, under and through the utility
easements as shown on the Plat and any other plats or as may be created by separate written
document recorded among the Public Records of Palm Beach County, Florida.
[Note: The purchaser is in the process of reviewing the use restrictions contained in the
following Sections 5 - 30 and will get back to the seller with any comments.]
Section 5. Nuisances. No immoral, noxious, offensive or unlawful activity shall be
carried on within the Community nor shall anything be done therein or thereon which may be or
become an amnoyance to the Community or other Owners. No nuisance shall be permitted
within the Property nor shall any use or practice be permitted which is or becomes a source of
annoyance to the Owners or which interferes with the peaceful use and possession thereof by the
Owners. Additionally, nothing shall be done or maintained on any Plat Parcel, Tract or Unit,
upon any Maintenance Areas or upon the common areas or common elements of any Sub-
Association which will increase the rate of insurance on the Maintenance Areas, or result in the
cancellation thereof, or which will be in violation of any law, ordinance, statute, regulation, or
rule of any governmental authority having jurisdiction over the Property or portion thereof or in
violation of any provision of this Declaration, the Articles or Bylaws as they may be amended
from time to time or in violation of any rules and regulations which may be promulgated by the
Board of Directors from time to time, as elsewhere provided herein. No waste shall be
committed upon any Plat Parcel, any Tract, in any Unit, the Maintenance Areas or any other
portion of the Property. Notwithstanding the foregoing, each Owner hereby acknowledges that
the ongoing maintenance activities by the Master Association more particularly described in
Article IV, Section 1 of this Declaration, shall be deemed as not constituting a nuisance and
such activities and the parties performing them shall be specifically exempted from this
provision.
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Section 6. Temporary Structures. No structure of a temporary character, or trailer,
mobile home or recreational vehicle, shall be permitted on any Plat Parcels or Tracts within the
Community at any time or used at any time as a residence, either temporarily or permanently,
except by the Declarant or Parcel 2 Developer or any designee of Declarant or Parcel 2
Developer so long as Declarant or Parcel 2 Developer or their designees own one Plat Parcel,
Tract or Unit. No gas tank, gas container or gas cylinder shall be permitted to be placed on or
about the outside of any Unit or on or about any ancillary building, however, underground
propane tanks shall be permitted with prior written approval of the ARB. The foregoing
restrictions on gas tanks, gas containers and gas cylinders shall not apply to service stations or
similar facilities or any other lawful commercial uses, however, such uses are subject to approval
of Declarant and the Master Association.
Section 7. Suns and Flays. No sign of any kind shall be displayed to the public view
on or from any Plat Parcel or Tract, except signs on models displayed by Declarant or Parcel 2
Developer or their designees, or alarm company signs not exceeding _ by and located
within (~ feet of any entrance to a Plat Parcel or Tract. No sign of any kind shall be
permitted to be placed inside a Unit which is visible outside the Unit or on the outside walls of
such Unit nor on any fences within residential portions of the Property, nor on the Maintenance
Areas, nor on dedicated areas, nor on entryways, nor on any vehicles within the Property, except
such as are placed by the Declarant or Parcel 2 Developer or another person or entity authorized
in writing by Declarant and/or Parcel 2 Developer to do so. Without limiting the generality of
any other Article hereof, in the event that similar requirements of aSub-Association or the
County are more restrictive than those set forth herein, such more restrictive requirements shall
supersede and control. No sign for the resale, lease or other transfer of a Plat Parcel, Tract or
Unit shall be permitted within the Property nor shall any sign be displayed on, upon, or within
any motor vehicle.
The foregoing restrictions on signs shall not apply to signs erected by Declarant or Parcel
2 Developer or their designees. In addition, any subsequent modification, replacement or
removal of such sign by Declarant, and/or Parcel 2 Developer or their respective designees shall
not be subject to any approval by the Master Association, the ARB any Sub-Association or any
Owner. To the extent signs are originally permitted by Declarant, Parcel 2 Developer or the
ARB to be erected on the Property, such permission is subject to subsequent modification to
permit additional or different signage.
Section 8. Oil and Mining Operation. No oil drilling, oil development operations, oil
refining, quarrying or mining operations of any kind shall be permitted upon or within the
Property, nor on dedicated areas, nor shall oil wells, tanks, tunnels, mineral excavations or shafts
be permitted upon or within the Property. No derrick or other structure designed for use in
boring for oil or natural gas shall be erected, maintained or permitted upon any portion of the
land subject to this Declaration. Such oil or other storage tanks shall be subject to the
architectural design standards and approvals as set forth elsewhere in this Declaration and as
otherwise required by applicable law, rule or regulation.
Section 9. Pets. No more than two (2) household pets (as may be defined and re-
defined by the condominium association) shall be maintained in any Unit or any limited common
_ 2g _ _317059_2/
element appurtenant thereto. The maximum total weight of any such household pets shall be
limited to an aggregate of thirty-five (35) pounds. Notwithstanding the foregoing, the maximum
total weight for any one household pet may not exceed twenty-five (25) pounds. Household pets
shall not be kept, bred or maintained for any commercial purpose and shall not become a
nuisance or annoyance to neighbors. Those pets which, in the sole discretion of the applicable
condominium association or Master Association, endanger health, safety, have the propensity for
dangerous or vicious behavior (such as pit bulldogs or other similar breeds or ).nixed breeds),
make objectionable noise, or constitute a nuisance or inconvenience to the Owners of other Units
or to the owner of any other portion of any condominium shall be removed upon request of the
applicable condominium association, Board or the Master Association. Unit Owners must pick
up all solid wastes of their pets and dispose of such wastes appropriately. All pets (including
cats) must be kept on a leash of a length that affords reasonable control over the pet at all tunes,
or must be carried, when outside the Unit. No pet may be kept on a balcony or terrace when its
owner is not in the Unit. Without limiting the generality of the applicable declaration of
condominium, any violation of the provisions of this restriction shall entitle the applicable
condominium association to all of its rights and remedies, including, but not limited to, the right
to fine Unit Owners (as provided in any applicable rules and regulations) and/or to require any
pet to be permanently removed from the applicable condominium property and association
property. Compliance with this restriction shall not necessarily establish compliance with rules
prohibiting nuisances.
Obnoxious animals, fowl or reptiles shall not be kept or permitted to be kept in any Unit.
The determination of what is or what may be an obnoxious animal, fowl or reptile shall be
determined by the Board of Directors, in their sole discretion.
Section 10. Visibility at Intersections. No Owner, its guests, lessees, and invitees may
cause or permit obstructions to visibility at street intersections or Maintenance Area
intersections.
Section 11. Boats Trailers Campers and Commercial Trucks. Restrictions, if any, on
boats, trailers, campers and commercial trucks (particularly as to the parking or storage thereof)
shall be imposed and enforced by the applicable Sub-Associations. Parking shall be permitted
only in Unit garages, driveways and other designated parking areas within the Community. No
vehicle shall be parked so as to obstruct or otherwise impede ingress or egress to any driveway
or roadway. Parking in the Community shall be restricted to private automobiles and passenger-
type vans, jeeps, pick-up trucks, and sport utility vehicles, motorcycles, motor scooters (all of
which are collectively referred to herein as "vehicles"). No trailer, camper, motor home or
recreational vehicle shall be used as a residence, either temporarily or permanently, or parked in
the Community. No more than two (2) vehicles per unit are permitted to be kept in the driveway.
No vehicle is permitted on the Property which leaks oil, brake fluid, transmission fluid or other
fluids. No Owner, occupant or other person shall conduct repairs or restorations on any motor
vehicle, or other vehicle, or race the engine of any vehicle, upon any portion of the Community.
No person shall park, store or keep on any portion of the Community any large type commercial
type vehicle (for example, dump truck, motor home, trailer, cement mixer truck, oil or gas truck,
delivery truck), nor may any person keep any other vehicle in the Community which is deemed
to be a nuisance by the Board, including, but not limited to, any motorcycle or motor scooter,
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particularly where such vehicle is operated in the early morning or late evening hours. For
purposes of this section, "commercial vehicles" shall mean those which are not designed and
used for customary, personal/family purposes. The absence of commercial-type lettering or
graphics on a vehicle shall not be dispositive of whether it is a commmercial vehicle. However,
any vehicle containing commercial-type lettering or graphics shall be deemed to be a commercial
vehicle. Visitor parking areas may be available to Unit Owners, occupants, and their guests and
invitees, on designated portions of the Maintenance Areas. Owners and occupants shall be
responsible for removing their vehicles and other property from their driveways upon the
issuance of a tropical storm or hurricane warning.
The prohibitions on parking contained in this section shall not apply to temporary parking
of: (a) commercial vehicles, such as for construction use or providing pick-up and delivery and
other commercial services; (b) any vehicles of the Declarant and/or Parcel 2 Developer or their
respective affiliates or designees, used for construction, maintenance, repair, decorating, sales or
marketing purposes; or (c} service vehicles operated in connection with the Master Association,
any Sub-Association or their management companies.
Subject to applicable laws and ordinances, any vehicles, boat, motorcycle or trailer
parking in violation of these or other restrictions contained herein or in the Declaration, inay be
towed by the Master Association in the sole expense of the owner of such vehicle. The Master
Association shall not be liable to the owner of such vehicle for trespass, conversion or otherwise,
nor shall it be guilty of any criminal act, by reason of such towing and once the notice is posted,
neither its removal, nor failure of the Owner to receive it for any reason, shall be grounds for
relief of any kind. An affidavit of the person posting the aforesaid notice stating that it was
properly posted shall be conclusive evidence of proper posting.
Section 12. Garbage and Trash Disposal. No garbage, refuse, trash or rubbish shall be
deposited except as permitted by the Master Association. The requirements from time to time of
the applicable governmental authority, trash collection company or the Master Association
(which inay, but shall not be required to provide solid waste removal services) for disposal or
collection of waste shall be complied with by Owners and their guests or invitees. All equipment
for the storage or disposal of such materials shall be kept in a clean and sanitary condition. All
solid waste shall be placed in containers which shall comply with the standards adopted by the
Master Association (or the ARB) for such containers. The ARB in its sole discretion may
designate a standard style and type for containers. Garbage and trash to be removed must be
placed at curbside or other designated location no earlier than 6:00 p.m. the evening before
collection and such containers must be removed from the designated pickup location as soon
after the pickup as is practicable, but in no event by later than 6:00 p.m. on the day of collection.
Section 13. No Drying. No portion of the Property other than inside a Unit and not
visible from the exterior shall be used as a drying or hanging area for laundry of any kind.
Section 14. Unit Air Conditioners and Reflective Materials. No air conditioning units
may be mounted through windows or walls. No building shall have any aluminum foil placed in
any window or glass door or any reflective substance or other materials (except standard window
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treatments) placed on any glass, except such as may be approved by the ARB or its equivalent
for energy conservation purposes.
Section 15. Renewable Resource Devices. Nothing in this Declaration shall be
deemed to prohibit the installation of energy devices based on renewable resources (e.g., solar
collector panels); provided, however, that same shall be installed only in accordance with the
standards adopted from time to time by the ARB and its Sub-Association counterpart with
respect to each Parcel. Such standards shall be reasonably calculated to maintain the aesthetic
integrity of the Property.
Section 16. Trees Shrubs and Artificial Ve etg ation. No tree or shrub may be cut
down, destroyed or removed from a Plat Parcel, Tract, Unit or Sub-Association common area or
common element without the prior, express written consent of the ARB. No artificial grass,
plants or other artificial vegetation, or statues, sculpture, or sculptural landscape decor, shall be
placed or maintained upon the exterior portion of any Plat Parcel, Tract or Unit without the
aforesaid ARB consent. In the event any tree, shrub or any other vegetation is destroyed by
winds, fire, frost, freeze or other natural or artificial action, the Owner of the Plat Parcel, Tract or
Unit upon which such tree, shrub or vegetation is located shall be responsible to replace the same
with trees of similar type and kind with the prior consent of the ARB.
Section 17. Exterior Lighting and Sk~ghts. All exterior lighting and skylights shall
be subject to prior approval by the ARB.
Section 18. Fences and Walls. The composition, location, color, design, structure and
height of any fence or wall to be constructed on any Plat Parcel or Tract is subject to the written
approval of the ARB. The ARB shall, among other things, require that the composition of any
fence or wall be consistent with the material used in the surrounding buildings and other fences,
if any.
Section 19. Mailboxes. No mailbox, newspaper box or rack or other receptacle of any
kind for use in the delivery of mail, newspapers, magazines or similar material shall be erected
on any Plat Parcel or Tract without the approval of the ARB as to style, size, color, installation
and location. The ARB, in its sole discretion, may designate a standard style and type of
mailbox. If and when the United States Postal Service or the newspaper or newspapers involved
shall indicate a willingness to make delivery to wall receptacles attached to Units, each Owner,
on the request of the ARB, shall replace the boxes or receptacles previously employed for such
purpose or purposes with wall receptacles attached to dwellings.
Section 20. Utility Connections. Permanent building connections for all utilities
installed after the date hereof, including, but not limited to, water, sewer, gas, electricity,
telephone, cable and television, shall be run underground from the proper connecting points to
the building structure in such a manner to be acceptable to the governing utility authority. The
foregoing shall not apply, however, to transmission lines, transformers and other equipment
installed by public utility companies or as part of the Community Systems.
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Section 21. Construction Scheduling. Other than construction by Declarant and
Parcel2 Developer, no outdoor construction or development activity of any kind will be
permitted within the Property on Sundays or legal holidays without the express prior written
consent of the Master Association or the ARB. The ARB may, in its sole discretion establish
hours within which construction may be perfom~ed.
Section 22. Off-Street Motor Vehicles. No motorized or battery powered vehicles
may be operated on paved roadways and drives except as specifically approved in writing by the
Master Association. "All Terrain Vehicles" ("ATV's") are prohibited from being kept, used or
driven on any portion of the Property. Off-Street Motor Vehicles operated by the Master
Association or any Sub-Association or their contractors, subcontractors or designees, are
exempted from this Section. All motorized vehicles operated on the Property, whether on or off
paved roadways and drives, must be operated by a driver with a current valid driver's license and
such driver must have comprehensive liability insurance covering such vehicle in an amount to
be determined from time to time by the Master Association. The Master Association may
request the owner of the vehicle to provide proof of such liability insurance in a form reasonably
satisfactory to the Master Association.
Section 23. Storage and Meter Areas. All storage areas of any kind upon any Plat
Parcel or Tract, and all meters and similar areas located upon any such Plat Parcel or Tract, shall
be completely screened from view from the exterior of the Plat Parcel or Tract by a wall, fence
or mature landscaping material in a manner acceptable to the ARB.
Section 24. Bicycle Storage. Bicycles and similar devices shall be stored only within
Units. In the event bicycles or similar devices are left on the Maintenance Areas, they inay be
impounded by the Master Association and shall be released to the Owner only upon payment of
an administrative fee established by the Master Association. Such an administrative fee shall be
an Individual Assessment enforceable pursuant to the procedures set forth in Article V of this
Declaration. The Declarant and the Maintenance Association shall have the right but not the
obligation, to impound and store bicycles or similar devices and after sixty (60) days of storage
dispose of same. Declarant, the Maintenance Association, their respective employees, officers,
directors and designees shall have no liability for damage to or loss of bicycles while impounded
or in the event of disposal of bicycles or similar devices.
Section 25. Auction Prohibition. No Plat Parcel, Tract, Unit, Improvements thereon or
any interest therein shall be sold, marketed or conveyed by auction, nor shall auctions of real or
personal property or interests in real or personal property be conducted within the Property.
Garage sales or other similar sales are prohibited from being conducted on any Plat Parcel, Tract,
Unit, Maintenance Areas, Sub-Association common areas or common elements.
Section 26. Garages. Garages shall only be used for the storage of automobiles, golf
carts, and other uses authorized herein and shall not be permanently enclosed or converted to
other uses. All garages shall be equipped with fully operational automatic garage door openers
activated by a remote control garage door opener and all garage doors must be closed, except
when vehicles are entering or exiting from the garage. Each Owner shall be responsible for
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maintaining his own garage door opener in good working order at all times at the Owner's sole
cost and expense.
Section 27. Noise. No Owner shall knowingly or willfully make, create or allow to be
made or created by his guests, lessees or invitees, any unnecessary, excessive or offensive noise
or disturbance which destroys or interferes with the peace, quiet, and/or comfort of the Owners
or other residents of the Property
Section 28. Hazardous Waste. No flammable, toxic or hazardous substance of any
type may be stored or kept on any Plat Parcel, Tract or Unit or discharged therefrom by an
Owner in violation of any law, rule or regulation. Each Owner hereby indemnifies and holds
harmless the Declarant, Parcel 2 Developer, their partners, officers, directors, employees, agents
and affiliates, and the Master Association, its Officers, Directors, employees and agents from and
against any and all claims, damages or losses of any kind that may be imposed upon or asserted
against them arising out of or from any hazardous substance kept, stored or used upon any Plat
Parcel, Tract or Unit. This indemnification shall survive the sale by an Owner of his Plat Parcel,
Tract or Unit.
Section 29. Huntin .Hunting by firearm, bow and arrow, or in any other manner shall
be and is expressly prohibited on or within the Property or any portion there of.
Section 30. Additional Use Restrictions. The Board of Directors may adopt such
additional use restrictions, rules or regulations, applicable to all or any portion or portions of the
Property and to waive or modify application of the foregoing use restrictions with respect to any
Plat Parcel(s), Tract(s) or Unit(s), as the Board, in its sole discretion deems appropriate. A
waiver or lack of enforcement of one or more restrictions shall not be construed as a waiver of all
similar restrictions in future situations. The Master Association shall have full enforcement
rights notwithstanding any prior waiver. Any additional restrictions need not be recorded among
the Public Records of Palin Beach County, Florida.
ARTICLE VIII
COMPLIANCE AND ENFORCEMENT
Section 1. Compliance by Owners. Every Owner and Sub-Association, and his/its
tenants, guests, invitees, officers, employees, contractors, subcontractors and agents shall comply
with any and all rules and regulations adopted by the Master Association as contemplated herein
as well as the covenants, conditions and restrictions of this Declaration, as they may be amended
from time to time.
Section 2. Enforcement. Failure to comply with this Declaration and/or any of such
rules or regulations shall be grounds for immediate action by the Association which may include,
without limitation, an action to recover sums due for damages, injunctive relief or any
combination thereof.
Section 3. Fines. In addition to all other remedies, and to the maximum extent
lawful, in the sole discretion of the Board of Directors, a fine or fines may be imposed upon an
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Owner or Sub-Association for failure of an Owner, Sub-Association or any of the other parties
described hereinabove, to comply with their obligations under this Declaration or with any rule
or regulation of the Master Association, provided the procedures set forth in the Bylaws are
adhered to.
Section 4. Application of Fines. All monies received from fines shall be allocated as
directed by the Board of Directors.
Section 5. Non-exclusive Remedy. Fines as provided herein and in the Bylaws shall
not be construed to be an exclusive remedy of the Master Association, and shall exist in addition
to all other rights and remedies to which the Master Association may be otherwise legally
entitled. A fine levied by the Master Association pursuant to this Section and the Bylaws may
not become a lien against an Owner's Unit or aSub-Association's connnon areas or common
elements.
ARTICLE IX
ARCHITECTURAL AND DEVELOPMENT REVIEW; GENERAL POWERS
The following provisions of this Article are subject to those of the immediately
succeeding Article hereof.
Notwithstanding anything to the contrary contained herein, the ARB (defined below)
shall not have jurisdiction over, and the requirements contained in this Article shall not apply to,
the Declarant, the Parcel 2 Developer or any parties as may be designated by Declarant or the
Parcel 2 Developer, or to any construction at the Property performed by Declarant and/or Parcel
2 Developer in connection with the development of the Parcels for residential housing, or any
Parcel, Tract, Plat Parcel, Unit or other property owned by Declarant, the Parcel 2 Developer, or
their respective designees.
Section 1. Members of ARB. The Architectural and Development Review Board of
the Master Association, (sometimes referred to in this Declaration as the "ARB"), shall consist of
three (3) members. The initial members shall be designated by Declarant and Parcel 2
Developer. Each of the initial members designated by Declarant and Parcel 2 Developer shall
hold office until all Units and Improvements planned for the Property have been constructed and
conveyed (if appropriate), or sooner at the option of Declarant and Parcel 2 Developer.
Declarant and Parcel 2 Developer shall have the right to remove and replace the respective ARB
members appointed by them at any time and from time to time. Thereafter, each new member of
the ARB shall be appointed by the Board of Directors. Each member of the ARB shall hold
office until such time as such member has resigned or has been removed or a successor has been
appointed, as provided herein. Members of the ARB may be removed at any time without cause,
subject to the rights of the Declarant and Parcel 2 Developer as aforesaid. The Declarant and
Parcel 2 Developer or the Board, after Declarant and Parcel 2 Developer are no longer Members
of the Master Association, shall have the right, in their sole discretion, to appoint or hire
professional consultants to the ARB. Such consultants may include, but not be limited to,
architects, engineers, landscape engineers and other design professionals.
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The members of the ARB may, at the discretion of the Board of Directors, be
compensated for their services in which event such compensation shall be a General Expense of
the Master Association. The ARB may, with the approval of the Board of Directors as to
amounts, require the payment of anon-refundable filing fee as a condition to the consideration of
any matter presented to it, such fees to be applied to the compensation of the ARB members and
other expenses of the ARB (including, without limitation, overhead, development review,
enforcement and other Master Association expenses reasonably allocable to the ARB).
In addition to the power and duties set forth hereinbelow, the ARB shall have the right
and duty to enforce such development review, architectural control, maintenance and other
requirements and restrictions imposed on any portion of a Parcel by Declarant (with respect to
Parcel 1) or Parcel 2 Developer (with respect to Parcel 2) by way of specific deed restrictions or
contract, as Declarant or Parcel2 Developer, as applicable, shall, in their respective sole
discretion, if at all, elect to have it enforce (subject at all times to Declarant's and Parcel 2
Developer's right to modify or revoke such right and duty). Such election may be made by
Declarant and Parcel 2 Developer in the applicable deed restrictions or by way of an exclusive or
non-exclusive assignment of Declarant's and Parcel 2 Developer's rights to enforce the same.
Further, Declarant and Parcel 2 Developer, as applicable, may provide for specific criteria and
procedures to be used by the ARB in such regard (subject to later modification), and absent such
provision, the ARB shall proceed in the manner set forth in this Article.
Section 2. Construction Compliance Deposit. The Owner or builder of any Units,
addition, pool or other Improvements to a Plat Parcel or Tract will be required to deliver to the
Master Association a deposit in an amount established by the Board from time to time. Such
deposit shall be delivered prior to or along with any plans and specifications submitted to the
ARB for approval. The deposit shall be held by the Master Association to ensure compliance by
the Owner and/or builder with all provisions of this Declaration, standards of the ARB and all
rules and regulations promulgated by the Master Association or ARB pursuant to this
Declaration.
The Master Association shall cause the deposit to be placed in a separate escrow account,
and interest earned thereon, if any, shall accrue to the benefit of the Master Association.
The Master Association shall give the Owner and/or builder written notice of any failure
to comply with the provisions, standards, rules, or regulations described above. If the Owner
and/or builder does not cure the problem within five (5) days of the date of the notice, the Master
Association may, but is not obligated to take corrective measures as it deems appropriate in its
sole discretion. The cost of any such corrective measures shall be deducted from the deposit.
The Owner andlor builder shall promptly pay to the Master Association any amount so paid out,
so that the full deposit is held by the Master Association at all times. In the event the deposit is
insufficient to cover the cost of such corrective action, the Owner and/or builder shall pay to the
Master Association any balance to cover the full cost of the corrective action. Upon completion
of the construction, the Owner and/or builder may apply to the Master Association for a refund
of the deposit. The Master Association may establish policies regarding such deposits providing
for retention of a percentage to defray administrative costs.
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Section 3. Review of Proposed Construction. Subject to other applicable Sections
below, no building, fence, wall or other structure or improvement (including, but not limited to,
landscaping or other improvements or changes thereto of any kind) shall be commenced, altered,
removed, painted, erected or maintained on the Property nor shall any addition, removal, change
or alteration (including paint or exterior finishing) visible from the exterior of any Unit be made,
nor shall any awning, canopy or shutter be attached to or placed upon outside walls or roofs of
buildings or other Improvements, until the plans and specifications showing the nature, kind,
shape, height, materials and location of the same shall have been submitted to, and approved in
writing by, the ARB (after first having been approved by aSub-Association or architectural
control committee thereof, if any, and if required by the ARB, which requirement may be
imposed after the initial submission for approval). The requirements and procedures of this
Article shall also apply to common areas, and common elements of Sub-Associations. The ARB
shall approve proposals or plans and specifications submitted for its approval only if it deems
that the construction, alteration, removal or addition contemplated thereby in the location(s)
indicated will not be detrimental to the appearance of the Community as a whole, and that the
appearance of any structure affected thereby will be in harmony with the surrounding structures
and is otherwise desirable. If the proposed construction, alteration, removal or addition is to
common elements or common areas of a Sub Association, said approval shall also be subject to
the prior approval of the applicable Sub-Association. The ARB may condition its approval of
proposals and plans and specifications as it deems appropriate, and may require submission of
additional plans and specifications or other information prior to approving or disapproving
material submitted. The ARB may also issue rules or guidelines setting forth procedures for the
submission of plans for approval. The ARB may require such detail in plans and specifications
submitted for its review as it deems proper, including, without limitation, floor plans, site plans,
drainage plans, elevation drawings, landscape and landscape irrigation plans and specifications,
and descriptions or samples of exterior materials and colors. Until receipt by the ARB of all
required plans and specifications, the ARB may postpone review of any plans submitted for
approval. Upon such receipt, the ARB shall have thirty (30) days in which to accept or reject
any proposed plans or request modifications to such plans and, if the ARB does not reject or
request modifications to same within such period, said plans shall be deemed approved as
submitted. The decision of the ARB shall take precedence over any architectural review boards
of Sub-Associations, if any.
All changes and alterations of Owners' Units and landscaping and other Improvements
whether structural, color, style or otherwise, shall also be subject to all applicable permit
requirements and to all applicable governmental laws, statutes, ordinances, rules, regulations,
orders and decrees. ARB written approval of any changes and alterations must be obtained prior
to application to any governmental authority.
The provisions of this Article shall apply not only to Plat Parcels, Tracts and Units, but
also to common areas or common elements of Sub-Associations.
All construction on the Property, with the exception of construction by Declarant, and
Parcel 2 Developer, shall be subject to such rules, regulations, design and construction standards,
and setback and building requirements as may be promulgated by the Board and/or ARB from
time to time.
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Section 4. Meetings of the ARB. The ARB shall meet from time to time as
necessary to perform its duties hereunder. The ARB may from time to time, by resolution
unanimously adopted in writing, designate an ARB representative (who may, but need not, be
one of its members) to take any action or perform any duties for and on behalf of the ARB,
except the granting of variances as hereinbelow provided. In the absence of such designation,
the vote of a majority of members of the ARB shall constitute an act of the ARB.
Section 5. No Waiver of Future Ap rp ovals. The approval of the ARB of any
proposals or plans and specifications or drawings for any work done or proposed, or in
connection with any other matter requiring the approval and consent of the ARB, shall not be
deemed to constitute a waiver of any right to withhold approval or consent as to any similar
proposals, plans and specifications, drawings or matters whatsoever subsequently or additionally
submitted for approval or consent.
Section 6. Inspection of Work. Inspection of work and correction of defects therein
shall proceed as follows:
A. Upon the completion of any work for which approved plans are required
under this Article, the applicant (who may be an Owner or an appropriate Sub-Association) for
such approval (the "Applicant") shall give written notice of completion to the ARB;
B. Within fifteen (15) days thereafter, the ARB or its duly authorized
representative may inspect such improvement. If the ARB finds that such work was not effected
in substantial compliance with the approved plans, it shall notify the Applicant in writing of such
noncompliance within such fifteen (15) day period, specifying the particulars of noncompliance,
and shall require the Applicant to re>nedy the same;
C. If, upon the expiration of thirty (30) days from the date of such notification,
the Applicant shall have failed to remedy such noncompliance, the ARB shall notify the Board in
writing of such failure. The Board shall then determine whether there is a noncompliance and, if
so, the nature thereof and the estimated cost of correcting or removing the same. If a
noncompliance exists, the Applicant shall remedy or remove the same within a period of not
more than thirty (30) days from the date of announcement of the Board ruling. If the Applicant
does not comply with the Board ruling within such period, the Board, at its option, may authorize
the improvement as it is, remove the non-complying improvement or remedy the noncompliance,
or pursue any other remedies available to it under this Declaration and at law and in equity and
the Applicant shall reimburse the Master Association, upon de>nand, for all expenses incurred in
connection therewith, plus an administrative charge to be determined by the Master Association.
If such expenses are not promptly repaid by the Applicant to the Master Association, the Board
shall levy an Individual Assessment against such Applicant and his Plat Parcel, Tract or Unit for
reimbursement. In the event said Applicant is aSub-Association, the aforementioned Individual
Assessment shall be levied against all Units in the Sub-Association in proportion to their
respective share of the common expense of said Sub-Association; and
D. If for any reason the ARB fails to notify the Applicant of any noncompliance
within sixty (60) days after receipt of said written notice of completion from the Applicant, the
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improvement shall be deemed to have been made in accordance with said approved plans, unless
such failure to notify is due to excusable neglect, or would create a hardship on other Owners as
determined by the ARB.
E. In addition to, and not in lieu of, any other remedies provided to the ARB in
this Article, the ARB shall have the right to seek injunctive and other relief for the temporary and
permanent suspension of activities in violation of the requirements of this Article. After proper
notice to the party in violation and opportunity to cure, the ARB may, in its sole discretion file
such lawsuits and other judicial and administrative proceedings seeking to enforce the remedies
granted in this subsection and elsewhere stated in this Declaration.
Section 7. Non-Liability of ARB Members. Neither the ARB nor any member
thereof, nor its duly authorized representative, shall be liable to the Master Association, any Sub-
Association, or to any Owner or any other person or entity for any loss, damage or injury arising
out of or in any way connected with the performance or non-performance of the ARB's duties
hereunder. The ARB shall review and approve or disapprove all plans submitted to it for any
proposed improvement, alteration or addition solely on the basis of aesthetic considerations and
the benefit or detriment which would result to the immediate vicinity and to the Community.
The ARB shall take into consideration the aesthetic aspects of the architectural designs,
placement of buildings, landscaping, color schemes, exterior finishes and materials and/or some
of the procedures set forth herein and, without limiting the generality of other applicable
provisions hereof, inay alter the procedures set forth herein as to any such applicant.
Section 8. Sub-Associations. The ARB shall exercise, and every Sub-Association
shall be bound by, the provisions, requirements and procedures of this Article, which shall at all
times apply to all Sub-Associations and their common areas or common elements.
Section 9. Declarant Approvals. Notwithstanding the foregoing provisions or
anything else to the contrary mentioned in this Declaration, any approval by the Declarant or
Parcel 2 Developer concerning proposed construction, development, structures, improvements,
modifications or alterations, shall be deemed to satisfy the requirements of this Article IX and
shall be given the full weight and authority of an approval of the Architectural and Development
Review Board pursuant to this Article IX.
ARTICLE X
MASTER ASSOCIATION: SUB-ASSOCIATIONS, DECLARANT AND PARCEL 2
DEVELOPER
Section 1. Preamble. In order to ensure the orderly development, operation and
maintenance of the Property and the properties subject to the potential administration of Sub-
Associations as integrated parts of the Property, this Article has been promulgated for the
purpose of: (A) giving the Master Association certain powers to effectuate such goal, (B)
providing for intended (but not guaranteed) economies of scale, and (C) establishing the
framework of the mechanism through which the foregoing may be accomplished.
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Section 2. Cumulative Effect: Conflict. The covenants, restrictions and provisions of
this Declaration shall be cumulative with those of the Declarations for the Sub-Associations, if
any, provided, however, that in the event of conflict between or among any such covenants,
restrictions and provisions, or any Articles of Incorporation, Bylaws, rules and regulations,
policies or practices adopted or carried out pursuant thereto, those of the Sub-Association shall
be subject and subordinate to this Declaration. The foregoing priorities shall apply, but not be
limited to, the liens for assessments created in favor of the Master Association and the Sub-
Associations (as provided elsewhere herein).
Section 3. Development Review Maintenance and Use Restrictions. The Master
Association (through the ARB) shall exercise the architectural control/development review
functions reserved herein, subject to the development review and approval rights of the Declarant
and the Parcel 2 Developer. Further, the ARB shall carry out the functions provided to be
carried out by it hereunder, notwithstanding the fact that aSub-Association does likewise within
its jurisdiction; provided, however, that in such case (i) any submission to the ARB need be
accompanied by the approval of the subject matter thereof by the applicable Sub-Association (so
that the ARB need not consider any submission to it prior to the approval of such submissions by
all lower applicable associations which have a right of such approval, (ii) the review period of
such a submission shall be shortened to thirty (30) days and (iii) a disapproval of the ARB shall
supersede and control over an approval of a lower association.
Each of the Master Association and Sub-Associations shall have the power to enforce
their own respective use restrictions, provided that in the event of conflict, the more stringent
restrictions shall control.
ARTICLE XI
CONTROL OF ASSOCIATION
Section 1. Declarant and Parcel 2 Developer Responsibility. All Owners, their
assigns, guests, tenants and invitees do hereby acknowledge and agree that notwithstanding that
Declarant or Parcel 2 Member may no longer be a Member of the Master Association or
anything else contained in this Declaration, after such date, Declarant and Parcel 2 Developer
shall continue to retain those rights, powers, reservations, easements, estates and interests
existing in favor of Declarant and Parcel 2 Developer as described in this Declaration, the
Articles and Bylaws and in any other document or instrument granting, reserving or describing
such Declarant and Parcel 2 Developer rights, powers reservations, estates and interests, unless
and until the later of: Declarant and Parcel 2 Developer no longer own any Parcels, Tracts or
Units within the Property or have expressly terminated such rights, powers reservations,
easements, estates or interests by written instrument executed by Declarant and/or Parcel2
Developer.
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ARTICLE XII
TRANSFERS OF UNITS
Section 1. Notice to Master Association. Upon transfer of title to a Unit or any
interest therein by an Owner it shall be the responsibility of such Ovmer to provide written notice
of such transfer to the Master Association or its designated agent, which notice will include, at
minimum, a copy of the recorded Deed or other instrument of conveyance of title or an interest
in title to the grantee, together with the mailing address, phone number and, if available, e-mail
address, of the grantee which shall, upon receipt by the Master Association, be entered into the
official records of the Master Association as the record address of the Owner of the Unit. The
Master Association assumes no responsibility or liability to investigate the Public Records of the
County or any other public or private records to determine the ownership of any Unit and it shall
be the continuing responsibility of the Owners to comply with the requirements of this Section,
and Owners and their grantees shall be jointly and severally liable for compliance herewith.
ARTICLE XIII
INSURANCE
Section 1. Insurance Coverages. The Master Association shall purchase and
maintain a policy of comprehensive general public liability insurance naming the Master
Association, Declarant and Parcel 2 Developer as insureds. Coverage shall be in an amount to be
determined from time to time by the Board of Directors, in its sole discretion, but not less than
Million Dollars ($_,000,000.00) single coverage and combined coverage of not less
than Million Dollars ($_,000,000.00). Coverage shall include liability of the Master
Association and Declarant and Parcel 2 Developer for bodily injury, death and property damage.
Any such policy will provide that it cannot be cancelled or substantially modified without at least
thirty (30) days prior written notice to the Master Association, Declarant and Parcel 2 Developer.
Each Owner is responsible for purchasing and maintaining a policy of comprehensive general
public liability insurance providing coverage for his Plat Parcel, Tract or Unit.
Section 2. Waiver of Subrogation. As to each policy of insurance maintained by the
Master Association which will not be voided or impaired thereby, the Master Association hereby
waives and releases all claims against the Board, the Owners, the Declarant, the Parcel2
Developer, and the officers, directors, agents and employees of each of the foregoing, with
respect to any loss covered by such insurance, whether or not caused by negligence of or breach
of any agreement by said persons, but only to the extent that insurance proceeds are received as
compensation for such loss.
Section 3. Other Insurance Coverages. The Master Association shall maintain such
other insurance coverages, including, but not limited to, a policy of insurance or fidelity bond
naming the Master Association as the insured or as obligee to protect the Master Association
against the wrongful acts or omissions of any officer, director, trustee, agent or employee of the
Master Association and all of the persons who handle or are responsible for the handling of funds
of, or funds administered by the Master Association in such amounts and upon such terms as the
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Board of Directors deems necessary. The Master Association may also obtain Workman's
Compensation Insurance and other liability insurance as it deems desirable insuring the Master
Association and Board from liability in connection with the Maintenance Areas. The premiums
for all insurance coverages obtained by the Master Association shall be and are hereby declared
General Expenses and included in the Aggregate Assessments and Special Assessments made
against Members, Owners and Units.
Section 4. Declarant and Parcel 2 Developer Named As Insureds. Whenever the
Master Association is required to purchase and maintain a policy of insurance or bond which
shall, according to the teens of this Article XIII, name Declarant and Parcel 2 Developer as
insureds, such obligation to name each of the foregoing as insureds shall cease as to each upon
the date that each no longer owns any portion of the Property.
ARTICLE XIV
GENERAL PROVISIONS
Section 1. Duration. The covenants and restrictions of this Declaration shall run with
and bind the Property, and shall inure to the benefit of and be enforceable by the Declarant, the
Parcel 2 Developer, the Master Association, any Sub-Association, the Owner of any land subject
to this Declaration and the ARB, and their respective legal representatives, heirs, successors and
assigns, for a term of fifty (50) years from the date this Declaration is recorded, after which time
said covenants shall be automatically extended for successive periods of ten (10) years each
unless an instrument signed by the then Owners of seventy-five percent (75%) of the Units in
each Sub-Association, and the mortgagees of one-hundred percent (100%), of the Units agreeing
to revoke said covenants has been recorded in the Public Records of the County and Declarant
and the Parcel 2 Developer or their respective assigns has given its prior written consent thereto.
No such agreement to revoke shall be effective unless made and recorded three (3) years in
advance of the effective date of such agreement and unless written notice of the proposed
agreement is sent to every Owner at least ninety (90) days in advance of any action taken.
Section 2. Assignment. Any of the rights, powers, reservations, obligations,
easements, estates and interests reserved by, or granted to the Master Association may be
assigned in whole or in part by the Master Association. Any of the rights, powers, reservations,
obligations, easements, estates and interests reserved by, or granted to the Declarant and/or the
Parcel2 Developer may not be assigned in whole or in part by Declarant or the Parcel2
Developer, as the case may be, unless such assignment is made to an Affiliate or any other
Person approved by Declarant (with respect to an assignment by Parcel 2 Developer) or Parcel 2
Developer (with respect to an assignment by Declarant). In either case, any such assigrunent
shall be in writing and recorded in the Public Records of the County. After such assignment, the
assignee shall have the same rights, powers, estates and interests and be subject to the same
obligations and duties as were the Declarant, the Parcel 2 Developer or the Master Association
prior to the assignment, and the Declarant and the Parcel2 Developer and, upon such
assignment, Master Association shall be relieved and released of all obligations with respect to
such rights, powers, reservations, obligations, easements, estates or interests.
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Section 3. Notice. Any notice required to be sent to any Member or Owner under the
provisions of this Declaration shall be deemed to have been properly sent when personally
delivered or mailed, postpaid, to the last known address of the person who appears as the Voting
Representative for that Parcel or the Owner of the applicable Unit on the records of the Master
Association at the time of such mailing. It shall be the duty of each Member to keep the Master
Association advised of the names and addresses of the Owners with respect to each such
Member's Parcel.
Section 4. Enforcement. Enforcement of these covenants and restrictions shall be
accomplished by means of a proceeding at law or in equity against any person or persons
violating or attempting to violate any covenant or restriction, either to restrain violation or to
recover damages, and against the land to enforce any lien created by these covenants; and failure
of the Master Association, the Declarant, the Parcel 2 Developer, the ARB, any Sub-Association
or any Owner to enforce any covenant or restriction herein contained shall in no event be deemed
a waiver of the right to do so thereafter.
Section 5. Severability. Invalidation or unenforceability of any one of these
covenants or restrictions or any part, clause or word hereof, or the application thereof in specific
circumstances, by judgment or court order shall not affect any other provisions or applications in
other circumstances, all of which shall remain in full force and effect.
Section 6. Amendments. The following provisions with respect to amendments to
the Declaration shall be subject to the right of the Declarant and Parcel 2 Developer, acting
jointly, to amend the Declaration as provided in the second subparagraph A of this Section 6:
A. Until the last of the date the Declarant turns over control of the
Multicondominium Association or the HOA to the Unit Owners thereof, this Declaration may
only be amended with the consent of Declarant and, until the date the Parcel 2 Developer tunes
over control of the Condominium Association to the Unit Owners thereof, this Declaration may
only be amended with the consent of the Parcel 2 Developer.
After each of the foregoing dates and until such membership ceases, this
Declaration may only be amended with the consent of the entity designated as the Parcel 1
Member by the Multicondominium Association and HOA, if any, as to Parcel 1 and the consent
of the Condominium Association as to Parcel 2.
B. When the Declarant and Parcel 2 Developer are no longer Members of the
Master Association, a resolution adopting an amendment to this Declaration may be proposed by
either the Board of Directors of the Master Association acting upon a vote of the majority of the
directors, or by either of the two (2) Members of the Master Association, whether meeting as
Members or by instrument in writing signed by them.
C. The amendment or amendments proposed must be approved by an affirmative
vote of both Members for such amendment or amendments to be adopted. Any amendment to
this Declaration shall be effective at the time of recording the amendment or certificate of
amendment in the Public Records of the County.
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D. Such amendment or amendments to the Declaration shall be transcribed and
certified by the President and Secretary of the Master Association as having been duly adopted
and the original or executed copy of such amendment or amendments so certified and executed
with the same formalities as a deed shall be recorded in the Public Records of the County, such
amendment or amendments to specifically refer to the recording data identifying the Declaration.
Thereafter, a copy of said amendment or amendments in the form of which the same were placed
of record by the Officers of the Master Association shall be delivered or mailed to all Owners,
but delivery of a copy thereof shall not be a condition precedent to the effectiveness of such
amendment or amendments.
Notwithstanding anything to the contrary in this Declaration:
A. The Declarant and Parcel2 Developer, acting jointly, may execute and
record amendments to this Declaration without the prior consent of any other Person (except for
the consent of the SFWMD if required pursuant to subparagraph B below). In addition, no
amendment of this Declaration shall abridge, modify, eliminate, prejudice, limit, amend or alter
the rights of the Declarant or Parcel 2 Developer as set forth in the Declaration without the prior
written consent of the Declarant or Parcel 2 Developer, which may be withheld in the sole
discretion of the Declarant and Parcel 2 Developer.
B. Any amendment proposed to this Declaration, the Articles of
Incorporation and/or Bylaws which would adversely affect the Surface Water Management
System, including environmental conservation areas, if any, shall require the written consent of
the SFWMD, which consent shall not be unreasonably withheld or delayed.
Section 7. Conflict. This Declaration shall take precedence over conflicting
provisions in the Articles and Bylaws of the Master Association and the Articles shall take
precedence over the Bylaws.
Section 8. Effective Date. This Declaration shall become effective upon its
recordation in the Public Records of the County.
Section 9. Captions. The captions used in this Declaration and exhibits attached
hereto, amendments thereof and supplements thereto are inserted solely as a matter of
convenience and shall not be relied upon or used in construing the text of this Declaration or any
exhibits hereto or amendments thereof and supplements thereto.
Section 10. Standards for Consent, Approval, Completion and Other Action. Unless
otherwise expressly stated herein, whenever this Declaration shall require the consent,
substantial completion, or other action by the Declarant, the Parcel 2 Developer, the Master
Association or the ARB, such consent, approval or action may be withheld in the sole and
unfettered discretion of the party requested to give such consent or approval or take such action,
and all matters required to be completed or substantially completed by the Declarant, the Parcel 2
Developer, the Master Association or the ARB shall be deemed so completed or substantially
completed when such matters have been completed or substantially completed in the reasonable
opinion of the Declarant, the Parcel 2 Developer, the Master Association or ARB, as appropriate.
- 43 - st~os9 zi
Section 11. Easements. Should the intended creation of any easement provided for in
this Declaration fail by reason of the fact that at the time of creation there may be no grantee in
being having the capacity to take and hold such easement, then any such grant or easement
deemed not to be so created shall nevertheless be considered as having been granted directly to
the Master Association as agent for such intended grantees for the purpose of allowing the
original party or parties to whom the easements were originally to have been granted the benefit
of such easement and the Owners hereby designate the Declarant, the Parcel 2 Developer and the
Master Association (or any of them) as their lawful attorney-in-fact to execute any instrument on
such Owners' behalf as may hereafter be required or deemed necessary for the purpose of later
creating such easement as it was intended to have been created herein. Formal language of grant
or reservation with respect to such easements, as appropriate, is hereby incorporated in the
easement provisions hereof to the extent not so recited in soiree or all of such provisions.
Section 12. Plats. In addition to this Declaration, the Property may be subject to
additional covenants, restrictions, reservations and other terms and provisions set forth in plats of
portions of the Property which are recorded or may be recorded in the Public Records of the
County.
Section 13. Notices and Disclaimers as to Community S std. Declarant, Parcel 2
Developer, the Master Association, any Sub-Association, or their successors, assigns or
franchisees and any applicable cable or satellite television or telecommunications system
operator (an "Operator") may, but are not obligated to, enter into contracts for the provision of
alarm or monitoring services through any Community Systems. DECLARANT, PARCEL 2
DEVELOPER, THE MASTER ASSOCIATION, ALL SUB-ASSOCIATIONS AND THEIR
FRANCHISEES, AND ANY OPERATOR, DO NOT GUARANTEE OR WARRANT,
EXPRESSLY OR IMPLIEDLY, THE MERCHANTABILITY OR FITNESS FOR USE OF
ANY SUCH COMMUNITY SYSTEM OR SERVICES, OR THAT ANY SYSTEM OR
SERVICES WILL PREVENT INTRUSIONS, FIRES OR OTHER OCCURRENCES, OR THE
CONSEQUENCES OF SUCH OCCURRENCES, REGARDLESS OF WHETHER OR NOT
THE SYSTEM OR SERVICES ARE DESIGNATED TO MONITOR SAME; AND EVERY
OWNER OR OCCUPANT OF PROPERTY SERVICED BY THE COMMUNITY SYSTEMS
ACKNOWLEDGES THAT DECLARANT, PARCEL 2 DEVELOPER, THE MASTER
ASSOCIATION, THE APPLICABLE SUB-ASSOCIATION OR ANY SUCCESSOR, ASSIGN
OR FRANCHISEE OF THE DECLARANT, PARCEL 2 DEVELOPER, OR ANY OF THE
OTHER AFORESAID ENTITIES AND ANY OPERATOR, ARE NOT INSURERS OF THE
OWNER'S OR OCCUPANT'S PROPERTY OR OF THE PROPERTY OF OTHERS
LOCATED ON THE PREMISES AND WILL NOT BE RESPONSIBLE OR LIABLE FOR
LOSSES, INJURIES OR DEATHS RESULTING FROM SUCH OCCURRENCES. It is
extremely difficult and impractical to determine the actual damages, if any, which may
proximately result from failure on the part of an alarm or monitoring service provider to perform
any of its obligations with respect to such services and, therefore, every Owner or occupant of
property receiving security services through the Community Systems agrees that Declarant,
Parcel 2 Developer, the Master Association, all Sub-Associations or any successor, assign or
franchisee thereof and any Operator assume no liability for loss or damage to property or for
personal injury or death to persons due to any reason, including without limitation, failure in
transmission of an alarm, interruption of other service or failure to respond to an alarm because
- 44 - 317059 2/
of (a) any failure of the Owner's system; (b) any defective or damaged equipment, device, line or
circuit; (c) negligence, active or otherwise, of the service provider or its officers, agents or
employees; or (d) fire, flood, riot, war, act of terrorism, act of God or other similar causes which
are beyond the control of the service provider.
Every Owner or occupant of property obtaining security services through the Community
Systems further agrees for himself, his grantees, tenants, guests, invitees, licensees, and family
members that if any loss, damage, injury or death should result from a failure of performance or
operation, or from defective performance or operation , or from improper installation, monitoring
or servicing of the system, or from negligence, active or otherwise of the security service
provider or its officers, agents, or employees, the liability, if any, of Declarant, the Parcel 2
Developer, the Master Association, all Sub-Associations, any franchisee of the foregoing and the
Operator or their successors or assigns, for loss, damage, injury or death sustained shall be
limited to a sum not exceeding Two Hundred Fifty and No/100 U.S. Dollars ($250.00), which
limitation shall apply irrespective of the cause or origin of the loss or damage and
notwithstanding that the loss or damage results directly or indirectly from negligent performance,
active or otherwise, or non-performance by an officer, agent or employee of Declarant, the
Parcel 2 Developer, the Master Association, any Sub-Association or any franchisee, successor or
assign of any of same or any Operator. Further, in no event will Declarant, the Parcel2
Developer, the Master Association, any Sub-Association, any Operator or any of their
franchisees, successors or assigns, be liable for consequential damages, wrongful death, personal
injury or commercial loss.
In recognition of the fact that interruptions in cable television and other Community
Systems services will occur from time to time, no person or entity described above shall in any
manner be liable, and no user of any Community System shall be entitled to refund, rebate,
discount or offset in applicable fees, for any interruption in Community Systems services,
regardless of whether or not same is caused by reasons within the control of the then provider(s)
of such services.
Section 14. Covenants Running With The Land. ANYTHING TO THE CONTRARY
HEREIN NOTWITHSTANDING AND WITHOUT LIMITING THE GENERALITY (AND
SUBJECT TO THE LIMITATIONS) OF OTHER APPLICABLE SECTIONS HEREOF, IT IS
THE INTENTION OF ALL PARTIES AFFECTED HEREBY (AND THEIR RESPECTIVE
HEIRS, PERSONAL REPRESENTATIVES, SUCCESSORS AND ASSIGNS) THAT THESE
COVENANTS AND RESTRICTIONS SHALL RUN WITH THE LAND AND WITH TITLE
TO THE PROPERTY. WITHOUT LIMITING THE GENERALITY OF ANY OTHER
SECTION HEREOF, IF ANY PROVISION OR APPLICATION OF THIS DECLARATION
WOULD PREVENT THIS DECLARATION FROM RUNNING WITH THE LAND AS
AFORESAID, SUCH PROVISION AND/OR APPLICATION SHALL BE JUDICIALLY
MODIFIED, IF AT ALL POSSIBLE, TO COME AS CLOSE AS POSSIBLE TO THE INTENT
OF SUCH PROVISION OR APPLICATION AND THEN BE ENFORCED IN A MANNER
WHICH WILL ALLOW THESE COVENANTS AND RESTRICTIONS TO SO RUN WITH
THE LAND; BUT IF SUCH PROVISION AND/OR APPLICATION CANNOT BE SO
MODIFIED, SUCH PROVISION AND/OR APPLICATION SHALL BE UNENFORCEABLE
AND CONSIDERED NULL AND VOID 1N ORDER THAT THE PARAMOUNT GOAL OF
- 45 - 3i~os9 ai
THE PARTIES AFFECTED HEREBY (THAT THESE COVENANTS AND RESTRICTIONS
RUN WITH THE LAND AS AFORESAID) BE ACHIEVED.
Section 15. Limitation on Master Association. Anything in this Declaration to the
contrary notwithstanding, the existence or exercise of any easement, right, power, authority,
privilege or duty of the Master Association as same pertains to any condominium located or
which may be within the Property which would cause the Master Association to be subject to
Chapter 718, Florida Statutes, shall be null, void aild of no effect to the extent, but only to the
extent, that such existence or exercise is finally determined to subject the Master Association to
said Chapter 718. It is the intent of this provision that the Master Association not be deemed to
be a condominium association, nor the Maintenance Areas be deemed to be common elements of
any such condominium, within the meaning of applicable laws or administrative rules for any
purpose.
Section 16. Notices and Disclaimers As To Water Bodies. NEITHER DECLARANT,
THE PARCEL 2 DEVELOPER, THE MASTER ASSOCIATION, ANY SUB-
ASSOCIATION(S) NOR ANY OF THEIR OFFICERS, DIRECTORS, COMMITTEE
MEMBERS, EMPLOYEES, MANAGEMENT AGENTS, CONTRACTORS OR SUB-
CONTRACTORS (COLLECTIVELY, THE "LISTED PARTIES") SHALL BE LIABLE OR
RESPONSIBLE FOR MAINTAINING OR ASSURING THE WATER QUALITY OR LEVEL
ANY POND, CANAL, CREEK, STREAM OR OTHER WATER BODY WITHIN OR
ADJACENT TO THE COMMUNITY, EXCEPT (i) AS SUCH RESPONSIBILITY MAY BE
SPECIFICALLY IMPOSED BY, OR CONTRACTED WITH, AN APPLICABLE
GOVERNMENTAL OR QUASI-GOVERNMENTAL AGENCY OR AUTHORITY OR (ii) TO
THE EXTENT THAT OTHER EXPRESSLY APPLICABLE SECTIONS HEREOF WOULD
OTHERWISE APPLY, IF AT ALL. FURTHER, ALL OWNERS AND USERS OF ANY
PORTION OF THE COMMUNITY LOCATED ADJACENT TO OR HAVING A VIEW OF
ANY OF THE AFORESAID WATER BODIES SHALL BE DEEMED, BY VIRTUE OF
THEIR ACCEPTANCE OF THE DEED TO OR USE OF, SUCH PROPERTY, TO HAVE
AGREED TO HOLD HARMLESS THE LISTED PARTIES FOR ANY AND ALL CHANGES
IN THE QUALITY AND LEVEL OF THE WATER IN SUCH BODIES.
ALL PERSONS ARE HEREBY NOTIFIED THAT, FROM TIME TO TIME,
ALLIGATORS AND OTHER WILDLIFE MAY INHABIT OR ENTER INTO WATER
BODIES AND MAY POSE A THREAT TO PERSONS, PETS AND PROPERTY, BUT THAT
THE LISTED PARTIES ARE UNDER NO DUTY TO PROTECT AGAINST, AND DO NOT
IN ANY MANNER WARRANT AGAINST, ANY DEATH, INJURY OR DAMAGE CAUSED
BY SUCH WILDLIFE.
Section 17. Mortgage Provisions. Any notice of any default under this Declaration by
Declarant as the Owner of Parcel 1 or Parcel 2 Developer as the Owner of Parcel 2 shall be sent
simultaneously to any Institutional Mortgagee of the defaulting Declarant and/or Parcel2
Developer, as applicable, and such Institutional Mortgagee shall have the right and a reasonable
opportunity to cure such default on the applicable mortgagor's behalf following the Institutional
Mortgagee's receipt of such notice. With respect to Institutional Mortgagees of individual
condominium units or non-condominium residences as to Parcel 1 or Parcel 2, provided that such
- 46 - 3i~os9 zi
Institutional Mortgagees register with the Master Association, notice of any default by the
applicable mortgagor with respect to any Unit will be sent to the corresponding Institutional
Mortgagee at the address provided simultaneously with its delivery to the defaulting Owner, and
such Institutional Mortgagee shall have the right and a reasonable opportunity to cure such
default on the applicable mortgagor's behalf following such Institutional Mortgagee's receipt of
such notice. Provided, however, the Master Association shall not be obligated in any manner to
deliver more than one such notice as to a default, nor shall the Master Association be obligated to
limit or delay in any manner (other than in providing an Institutional Mortgagee a reasonable
opportunity to cure such default as provided above) the exercise of any remedies to which it may
be entitled.
Section 18. Estoppel Certificate. As to each of Declarant and Parcel 2 Developer,
such party shall, within ten (10) days upon the request of the other party, issue to such requesting
party, its mortgagee or prospective mortgagee or its successor-in-title or prospective successor-
in-title, an estoppel certificate certifying as to whether such party is in compliance with the terms
of this Declaration, and if such party is not in compliance, those provisions with respect to which
such party is not then complying (and upon the creation of a unit owners' association or
homeowners' association on Parcel 1 and/or Parcel 2, as the case may be, such requests shall be
made and responded to by the respective unit owners' association or homeowners' association
with respect thereto).
Section 19. Use of Propert~Na_me. All parties owning or otherwise making any use of
any portion of the Property shall be deemed, by virtue of accepting such ownership or making
such use, to have covenanted and agreed that (i) "The Preserve at Tequesta" is, or will become, a
registered trademark of the Declarant and Parcel 2 Developer, (ii) except as provided below, no
usage of that mark or name or any variation thereof will be made in naming or referring to any
business or activity within or outside of the Property or in describing or referring to the location
of any business or enterprise conducted within or outside of the Property (except by Declarant or
Parcel 2 Developer) and (iii) generally, no usage of that mark or name will be made whatsoever
without the express prior written approval of the Declarant and Parcel 2 Developer.
Section 20. Deliver~of Documents to Subsequent Owners. Owners shall be obligated
to deliver the documents originally received from the Declarant and/or Parcel2 Developer,
containing this and other declarations and documents, to any grantee or lessee of such Owners.
Section 21. Joinder by THE PRESERVE AT TEQUESTA MAINTENANCE
ASSOCIATION, INC. This Declaration is being executed by The Preserve at Tequesta
Maintenance Association, Inc. to acknowledge its joinder in this Declaration for the purpose of
agreeing to perform its obligations as contained herein.
Section 22. Governing Law. The terms, covenants and conditions of this Declaration
shall be construed, governed by and enforced in accordance with the laws of the State of Florida.
Section 23. Gender and Plurality. Whenever the context so requires, the use of the
masculine gender, the use of the singular to include the plural, and the use of the plural to include
the singular.
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Section 24. Owner Acceptance and Ratification. By acquisition of title to real
property subject to this Declaration, each Owner thereby irrevocably ratifies, approves and
affirms all provisions of the Declaration and actions of the Board with respect to the method of
determination and collection of assessments and assessment rates for the year during which such
Owner acquired title to his respective Plat Parcel, Tract, Unit, or other real property.
Section 25. Unilateral Declarant Action. Notwithstanding any other provision of this
Declaration of Covenants, Restrictions and Easements to the contrary, the Declarant shall not
take any action concerning Parcel 2 (or exercise any right with respect thereto) without first
obtaining the prior written consent of Parcel 2 Developer.
[Intentionally left blank.]
- 4g - 317059 2/
IN WITNESS WHEREOF, Declarant has caused the foregoing Declaration of Covenants,
Restrictions and Easements to be executed by its undersigned duly authorized officers on the
date set forth above.
Witnesses:
Sign Name
Print Name
Sign Name
Print Name
CORNERSTONE TEQUESTA, L.L.C., a
Florida limited liability company
By:
Name:
Title:
STATE OF FLORIDA )
ss:
COUNTY OF )
This foregoing instrument was acknowledged before this day of ,
200_, by as of
CORNERSTONE TEQUESTA, L.L.C., a Florida limited liability company, on behalf of said
limited liability company, who is personally known to me or who produced
as identification.
[NOTARY SEAL]
Notary Public, State of Florida
My commission expires:
- 49 - 317059 2/
JOINDER BY THE PRESERVE AT TEQUESTA MAINTENANCE ASSOCIATION, INC.,
pursuant to Article XIV, Section 21 hereof:
WITNESSES:
Signed, sealed and delivered in the presence
of:
THE PRESERVE AT TEQUESTA
MAINTENANCE ASSOCIATION, INC., a
Florida not-for-profit corporation
Naive:
Name:
STATE OF FLORIDA )
ss:
COUNTY OF )
By:
Name:
Title: PRESIDENT
This foregoing instrument was acknowledged before this day of ,
200_, by as of THE PRESERVE AT
TEQUESTA MAINTENANCE ASSOCIATION, INC., a Florida corporation, on behalf of said
corporation, who is personally known to me or who produced
as identification.
[NOTARY SEAL]
Notary Public, State of Florida
My commission expires:
- 50 ' 317059 2/
MORTGAGEE'S CONSENT AND JOINDER
[We assume that any mortgage liens will be released from Parcel 2 and that seller's existing
mortgage lender will agree to subordinate its interest in Parcel 1 to the terms of the
Declaration]
This Consent and Joinder of Mortgagee is made this day of
200_, by BANKUNITED, FSB, a Federal savings bank,
("Mortgagee") having a mailing address of 255 Alhambra Circle, Penthouse, Coral Gables,
Florida 33134 ("Mortgagee"):
WITNESSETH:
For good and valuable consideration in hand paid, the Mortgagee, as owner and holder of
the following described documents (the "Loan Documents"):
1. Mortgage recorded in Official Records Book 17874, Page 1498, of the Public
Records of Palm Beach County, Florida,; and
2. Assignment of Leases, Rents and Profits, recorded in Official Records Book
17874, Page 1550, of the Public Records of Palin Beach County, Florida; and
3. UCC Financing Statement recorded in Official Records Book 17874, Page
1563, of the Public Records of Palin Beach County, Florida; and
4. Modification of Mortgage and Notice of Future Advance recorded in Official
Records Book 19868, Page 1670 of the Public Records of Palin Beach
County, Florida,
as the foregoing may be amended, securing all of the real property described therein, hereby
consents to and joins in the making of the Declaration of Covenants, Restrictions and Easements
for The Preserve at Tequesta (the "Declaration"), and agrees that henceforth the lien of said Loan
Documents shall be subject and subordinate to the Declaration to which this Mortgagee's
Consent and Joinder is attached, with the same force and effect as if the Declaration had been
executed and recorded prior to such Loan Documents.
Provided always, nevertheless, that nothing herein contained shall in anyway impair, alter
or diminish the effect, lien or encumbrance of the Loan Documents on the remaining part of said
mortgaged premises, or any of the rights and remedies of the Mortgagee or any subsequent
holder thereof, nor shall anything herein contained by construed as an assumption by Mortgagee
of any obligations of the grantor of the foregoing Declaration.
[Signature page follows]
- 51 - 317059 2/
IN WITNESS WHEREOF, the Mortgagee has hereunto caused these presents to be
executed on the day and year first above written.
BANKUNITED, FSB
a Federal savings bank
By:
Sign Name
Print Name
Sign Name
Print Name
STATE OF FLORIDA )
ss:
COUNTY OF )
Name:
Title:
The foregoing instrument was acknowledged before me this day of
200_, by the
of BANKUNITED, FSB, a Federal savings bank, who is personally
known to ine or who has produced as identification.
{notary seal}
Notary Public, State of Florida
Commission Number:
My Commission Expires:
- 52 - 317059 2/
EXHIBIT "A"
Legal Description of Property
(Insert legal description for the Property]
- 53 - 317059 2/
EXHIBIT "A-1"
[Insert metes and bounds description for Parcel 1]
_317059_2/
EXHIBIT "A-2"
[Insert metes and bounds description for Parcel 2]
- 5 5 - 317059 2/
EXHIBIT "B"
Site Plan
- 56 - 317059 2/
EXHIBIT "B-1"
Plat
- 57 - 317059 2/
EXHIBIT "C"
Common Facilities ("Maintenance Areas")
The Surface Water Management System;
2. Scrub Jay Preserve, as shown on the Site Plan and also designated as Conservation Tract
B on the Plat;
3. Tracts J, K and L of the Plat; certain of which are also designated as interior roadways
and sidewalks within the Community (including the entrance roadways and any
associated culverts or drainage facilities along Old Dixie Highway and Village
Boulevard), as well as shared parking areas on Parcel 2, all as shown on the Site Plan;
4. The Shared Utility Facilities;
5. Landscaping and fencing within the 5' Fence and Landscape Easement as shown on the
Plat which is also shown on the Site Plan as fencing along the exterior of the Property;
6. Landscaping areas and signage located at the entrance roadways off of Old Dixie
Highway and Village Boulevard and along public roadways, as shown on the Site Plan;
7. Lighting facilities associated with the interior roadways and sidewalks, shared entrance
ways and signage, as shown on the Site Plan; and
8. The landscaped right of way located (i) west of Parcel 1 and Parcel 2; and (ii) east of the
paved portion of Old Dixie Highway located west of Parcel 1 and Parcel 2, outside the
boundaries of the Plat and as shown on ;
9. Any other areas designated as Maintenance Areas by the Declarant and Parcel 2
Developer, acting jointly, or by the Board of Directors of the Maintenance Association,
pursuant to the Declaration.
- 5 8 - 317059 2/
EXHIBIT "D"
South Florida Water Management District Permit
- S9 - 317059 2/
EXHIBIT "E"
Articles of Incorporation of Maintenance Association
- 6~ - 317059 2/
EXHIBIT "F"
Bylaws of Maintenance Association
- 61 - 317059 2/
Prepared By:
Marilyn A. Moore, Esq.
Foley & Lardner LLP
Phillips. Point
777 South Flagler Drive, Suite 901-W
West Palm Beach, Florida 33401
Return To:
Cornerstone Tequesta, L.L.C.
2121 Ponce De Leon Blvd.
Coral Gables, Florida 33134
Attn: Leon J. Wolfe
DECLARATION OF CONDOMINIUM
FOR
THE PRESERVE AT TEQUESTA TOWNHOMES 1, A CONDOMINIUM
PMB_PMB_293 704 1 /MAMOORE
007.163511.2
TABLE OF CONTENTS
Page
.1
................................................
ARTICLE 1 DEFINITIONS ............................................
...........
ON OF THE CONDOMINIUM PROPERTY .............•••••••••••••••••• 5
ARTICLE 2 D ESCRIPTI
. 5
p y ............................
neral Description of the Condominium Pro ert
G ............
5
Section 2.1 p y
e
hic Description of the Condominium Pro ert
d Gra 5
Section 2.2 p
Survey an
Section 2.3 Time Share Estates ...........................•••••••••••••••••••••••••
ARTICLE 3 DEFINITION OF UNITS, COMMON ELEMENTS AND LIMITED
...
............. 6
.......................................
COMMON ELEMENTS....•••••••••••••••••••••
.....
: .............. 6
Section 3.1
...
................................................................................
Units ..........
.....................
..............
Section 3.2 Common Elements ........................................................
............... .............. 8
Section 3.3 Limited Common Elements .................................................
8
URTENANCES TO UNITS/EASEMENTS .................................................
ARTICLE 4 APP
ided Share in the Common Elements and Common Surplus .................. 8
di
U
Section 4.1 v
n
Section 4.2 Limited Common Elements ..................................
...................... ............... 9
Section 4.3 .......
Air Space ...............................................................
............
Section 4.4 Non-exclusive Use of Common Elements ......................................... ..
5
n 4
ti
S Encroachment ....................................................... 10
.
.
o
ec
Section 4.6 .............................
Right to Association Membership ........................
....... .
...........
Section 4.7 Support ............................... .......................................... .......... 10
Section 4.8 ...........
Utility and Other Services; Drainage ...................................... ...
10
Section 4.9
Cable TV and Communication Devices .................................
11
........
Section 4.10 Special Telephone Services .............................................................. ......
12
............
Section 4.11 Perpetual Easement .................................................... ................... ..
12
ARTICLE SMULTI-CONDOMINIUM ASSOCIATION ....................................... ..............
..... 12
Section 5.1 Functions and Duties ......................................................................... .........
....... 12
Section 5.2 Membership ...................................................................................... .......
...... 12
Section 5.3 Voting Rights .................................................................................... ........
.. 13
Section 5.4 Association Management .................................................................. ............
....... 13
Section 5.5 Right of Access .............................................
................................... ........
. 13
Section 5.6 Board of Directors ..........................................................................................
ARTICLE 6 MAINTENANCE, REPAIRS AND REPLACEMENTS ................... ...............14
Section 6.1 Units ................................................................................................. ............... 14
Section 6.2 Common Elements ........................................................................... ............... 14
Section 6.3 Limited Common Elements ............................................................. ...............
i
WP6 163511.3
March 3, 2006
Necessitated by Negligence of Unit Owners .......... 15
i
•
4
Section 6 r
Maintenance and Repa .............. 15
. sociation Right to Perform Remedial Maintenance .................
A .....
Section 6.5 s
.15
.................. ..................
ARTICLE 7 INSURANCE ....................................................................
'
Section 7.1 Duty and Authority to Obtain ................:°e::::;:::::::;:::•:::::::;:::::::;;: ;::::::::::
••••••• 15
Section 7.2 Required Coverage ................................. ,,••••••,•, 17
3
Section 7 Optional Coverage ......................................................... ....... 17
.
Section 7.4 .............
Premiums ....................................................................... .............
.............. 17
Section 7.5 Assured .......................................................................................
............. ......
.................... 17
Section 7.6 Insurer ....................................
........................................
.......... ................ 17
....
Section 7.7 Insurance Trustee .......................................<...................... .................... 18
Section 7.8
Association as Insurance Trustee ................................................
............... 1
Section 7.9 Application of Insurance Proceeds ............................................. .....
RUCTION OR REPAIR AFTER CASUALTY ...••••• ••••••••••••••••••••• 21
ARTICLE 8 RE CONST
.............. 21
Section 8.1 Damage to Units ........................................................................ .......
Section 8.2 Certificate ............................................................... ................... 21
Section 8.3 ....................
Plans and Specifications ........................................ ..
Section 8.4 Responsibility .......................................................
: ...................... 22
Section 8.5 .....
.............
Construction Funds ............................................... .
24
..........................
ARTICLE 9 CONDEMNATION ..............................................
......................
24
Section 9.1 Deposit of Awards with Insurance Trustee .....:..:....•••••••••••••••••• ••••••••••••••••••••••
24
termination Whether to Continue Condominium .................
D ......................
Section 9.2 e .......... 24
Section 9.3 Disbursement of Funds ................................................•••••••••••••
.........
•••
.... 24
Section 9.4 Unit Reduced but Tenantable ................................................... ...............
.... 24
Section 9.5 Unit Made Untenantable .......................................................... .... 25
Section 9.6 Taking of Common Elements .................................................. .............. 26
Section 9.7 Taking of Association Property ............................................... .............. 26
•
Section 9.8 Amendment of Declaration ............................ •••••••••••
•'••••••••••••• ••••••••••••••••••••••
ARTICLE 10 OWNERSIiIP AND USE RESTRICTIONS ............................. ....................... 26
........... 26
Section 10.1 Units. ..............................................................
.......................... ............
26
Section 10.2 Entity Ownership ..................:.................................................. .......................
27
3
Section 10 Association Property and Common Elements ........................ ........................
. .... 27
Section 10.4 Nuisances. .................................................................
.............. ....................
27
Section 10.5 Sales and Leasing .................................................................... ........................
Section 10.6 Sound Transmission ................................................................ ........................ 28
29
Section 10.7 Parking .................................................................................... ........................
30
Section 10.8 Pets and Animals . ........:........................................................ ........................
Section 10.9 Extended Vacation and Absences ........................................... ........................ 31
Section 10.10 Dampness and Humidity Mitigation ....................................... ........................ 31
11
Section 10 Antennas, Satellite Dishes ...................................................... ........................ 32
.
. 32
Section 10.12 -Fla Dis la .................................................
g P y ........................... ........................
ii
WP6 163511.3
March 3, 2006
...............
10.13
Section Signs. ....................................................................
............................
...................... 32
...............
Section 10.14 Rules and Regulations ...............................................
........................................ ................ 32
Section 10.15 ..
Proviso ..................................................
. 33
................................
LE 11 COMPLIANCE AND DEFAULT .....................
...............
ARTIC
................. 33
Section 11.1 Remedies... ...................................................................
Section 11.2 Costs and Attorneys' Fees .............................................................
.. ................. 33
Section 11.3 No Waiver of Rights ...................... , ...........................
LIEN AND ENFORCEMENT ..
IABILITY ................. 33
ARTICLE 12 A ,
SSESSMENTS: L 34
Section 12.1 .....................................
Determination of Assessments .................. .................
34
Section 12.2 Time for Payment .....................................
...... ..... 34
Section 12.3 Annual Budget ...........................................................
.............
' .................. 35
Section 12.4 .............................................
Special Assessments """""
............... .................. 35
Section 12.5 ..
Reserve Funds ..............................................................
........... .................. 36
Section 12.6. ....
Contingency Funds ........................................................
.....
.................. 36
Section 12.7
Use of Association Funds ........................................................
Section 12.8 Delinquency or Default ..........................................
. ................... 37
Section 12.9 .....................
Personal Liability of Unit Owner ...........................
.................. 37
Section 12.10 Y J ............................
Liabilit Not Sub'ect to Waiver .......................
........ .
................... 37
Section 12.11 ....................
Lien for Assessment .........................................
.................. 37
Section 12.12 Recordin and Priority of Lien ..... ............................................
g "' .
........... 38
Section 12.13 ................
Effect of Foreclosure or Judicial Sale .......................... ........
,,,,,,,,,,,,, 38
Section 12.14 ,,,,,,,,,,,,,,,
Fees for Sub-Metering of Utilities ............................... ,,,,,,,
.......... 3
Section 12.15 Effect of Voluntary Transfer ....................................................... ..........
.......... 39
Section 12.16 No Election of Remedies ............................................................ ..........
............. 39
Section 12.17
..
Additional Assessments ............................................................
.......
ARTICLE 13 REGISTRY OF OWNERS AND INSTITUTIONAL MORTGAGEES ....... 39
Section 13.1 Registry :................. ....... 39
Section 13.2 .....................................................................
Notices to Lenders . .............
ARTICLE 14 ALTERATIONS AND IMPROVEMENTS ................................ ..................... 40
40
Section 14.1 Architectural Control ................................................................. .....................
41
2
Section 14 Alterations by Unit Owners other than Developer .................... .....................
. 42
3
Section 14 Requests for Approval ............................................................... .....................
. . 42
4
Section 14 Ownership of Contiguous Units ................................................. ....................
.
Section 14 5' Alterations by the Association ................................................... ..................... 43
Section 14.6 Additions, Alterations or Improvements by Developer ............. .....................
Section 14.7 Compliance with Laws and Regulations; Warranties ................ ..................... 44
ARTICLE 15 TERMINATION AND. MERGER .................................................................... 44
.. 44
Section 15.1- Destruction ................................................................................ ....................
iii
WP6 163511.3
March 3, 2006
Section 15.2 Agreement .......... ..............................:....
......... .......................... 45
Section 15.3 ...................
Certificate .................................................. ........................... 45
Section 15.4 ............
Shares of Owners After Termination .......................
........
46
..........................
Section 15.5 Amendment ..................................................................
................ ........................... 46
Section 15.6 Merger ..................................................................
. 46
ARTICLE 16 A MENDMENT ........................................................................ ..........................
........... 46
Section 16.1 ....................................
Amendment by the Association.... •.
issions
O .................
....................... 47
2
ction 16
S m
Amendment by Developer to Correct Errors or .....
...... 47
.
e tive Date and Recording Evidence of Amendment ....
Eff ......................
Section 16.3 ec
Section 16.4 Exceptions ................................................................. .................... 48
Section 16.5 ..........
Developer and Declarant Consent ............................ ........
........................... 4
Section 16.6 SFWMD Approval .............................................................. .
48
E 17 ADDITIONAL RIGHTS OF DEVELOPER ......................
,...
.........................
ARTICL
................ 48
Section 17.1 Sales Activit ................................
y ..................................... .............
~~~~~~~~~~~~~
Section 17.2
...............................................
Control of Association """" '~~~
49
.............................
Section 17.3 Additional Easements ........................................................ ........................ 50
Section 17.4 Construction Maintenance ................................................. .....
50
ARTICLE 18 ASSOCIATION PROPERTY ............................................. ..............................
................. 50
Section 18.1
.........
Association Property ................................................
.............
CLE 19 THE PRESERVE AT TEQUESTA MAINTENANCE ASSOCIATION, INC.
50
ARTI ........................................................................... ..............................
................
Preserve at Tequesta Maintenance Association, Inc.
Th Disclosure .......::::: 50
Section 19.1 e
Section 19.2 Supremacy of Master Declaration ................................... ..........................
. 51
ARTICLE 20 SUB-ASSOCIATIONS ........................................................ ..............................
Section 20.1 Cumulative Effect; Conflict ...........................................:: :::::::::::::::::::::::::::::.. 51
Section 20.2 Use Restrictions ............................................................. 51
Section 20.3 Delegation of Other Duties .............................................. ...............................
51
Section 20.4 Acceptance of Delegated D.uties ......................................
..................
.............
52
Section 20.5 Master Association Offices ............................................. ................................
52
Section 20.6 Master Association Activities ......................................... ................................
ARTICLE 21 MISCELLANEOUS ........................................................:.. ................................ 52
Section 21.1 Notices and Disclaimers as to Access Control Systems . ................................
Section 21.2 Notices and Disclaimers As To Security ........................
.............. 54
..................
Section 21.3 Notice and Disclaimer as to Water Bodies ..................... ................••••••••••••~••• ss
4
Section 21 Assumption of Risk ......................................................... ................................ 56
.
Section 21.5 Notices and Disclaimers as to Unit Square Footage ....................................... 57
WPB_163511.3
March 3, 2006
iv
..... 58
6
ction 21
S
...................:......
Notice and Disclaimer as to Warranties ....................
.......
.58
.
e ess of Developer to Buildings and Unit and to Reports ...::::::::::::
A 59
::::::
:::
Section 21.7 cc .
.
Section 21.8 Association Liability ............................................................... .......... 60
Section 21.9 ...........
Covenants Running With The Land ..................•.••••••••••••••••••••
... ..
60
Section 21.10 Interpretation .........................................................................
knowledgement of Association Authority .........................
A 60
.............
Section 21.11 c
Owner
... ...
Section 21.12 Severability .....................................................................................
.................
ium
i
d .......... 6l
...
Section 21.13 .................
n
om
Applicability of Declaration of Con
....... 61
...
Section 21.14 Construction ................................................................................ .. 61
..........
Section 21.15 Parties Bound .....................................................................................
.......... .
............. 61
Section 21.16 Name ........................................................................................ . 61
Section 21.17
...
Delivery of Documents to Subsequent Owners .............................
ndominium A
C
.............
ssociation,
Section 21.18 o
Joinder by The Preserve At Tequesta Townhomes
..................... 61
Inc .............................................................................................
. .............. 61
Section 21.19 Drainage Easements...... ........................................................... 62
Section 21.20 South Florida Water Management District .......................................
...... ..............
.............. 62
Section 21.21 Easements .....................................................................
.............. 62
.......
Section 21.22 Governing Law and Venue ............................................................... .......
........ 62
Section 21.23 Gender and Plurality ........................................................................ .......
62
Section 21.24
...............................:................
Owner Acceptance and Ratification
...............
WPB_163511.3
March 3, 2006
v
Exhibits
«A" Legal Description of the Condominium Property
"A-1" Legal Description of the Association Property
"B" Survey and Plot Plan of the Condominium Property
~~C" Graphic Description of the Condominium Property
«D" Undivided Interest in the Common Expenses, Common Elements and
Common Surplus of the Condominium
"E" Articles of Incorporation of The Preserve at Tequesta Townhomes
Condominium Association, Inc.
"F" Bylaws of The Preserve at Tequesta Townhomes Condominium
Association, Inc.
vi
WPB_163511.3
March 3, 2006
DECLARATION OF CONDOMINIUM
FOR
THE PRESERVE AT TEQUESTA TOWNHOMES 1, A CONDOMINIUM
CORNERSTONE TEQUESTA, L.L.C., a Florida limited liability company, its
successors and assigns, hereby submits to the condominium form of use and ownership pursuant
to Chapter 718, Florida Statutes, 2005, as amended to the date hereof, land situated in Palm
Beach County, Florida, described as the Condominium Property on Exhibit "A" attached hereto
and made a part hereof, together with all improvements now or hereafter situated or constructed
thereon, and the easements, rights, privileges and obligations appurtenant and appertaining
thereto,. excluding any public utility installations located on or under the Condominium Property,
to be known and described as THE PRESERVE AT TEQUESTA TOWNHOME5 1, A
CONDOMINIUM (tlie "Condominium"), on the following terms:
ARTICLE 1
DEFINITIONS
The following terms as used in this Declaration of Condominium and the exhibits
hereto shall have the following meanings, unless the context in which they are used requires a
different meaning:
Section 1.1 "Assessment" means a share of the funds required for the
payment of Common Expenses which from time to time are assessed against a Unit and its
appurtenant undivided interest in the Common Elements, the payment of which is secured by a
lien upon the Unit and its appurtenant undivided interest in the Common Elements, and a share
of the funds required for the payment of Association Common Expenses, which from time to
time are assessed against each unit governed by the Association and such unit's appurtenant
undivided interest in the common elements of its condominium, the payment of which is
secured by a lien upon the applicable unit and its appurtenant undivided interest in the common
elements of its condominium.
Section 1.2 "Association" or "Condominium Association" means The
Preserve at Tequesta Townhomes Condominium Association, Inc., a Florida not-for-profit
corporation, the entity responsible for the operation and administration of the Condominium and
other condominiums located or proposed to be located on land in close proximity to the
Condominium Property within The Preserve At Tequesta Townhomes which is located in the
Community (as both are hereinafter defined).. Pursuant to the Master Declaration (as hereinafter
defined), the Association. is a "Sub-Association" and is subject to all terms, conditions, and
provisions of the Master Declaration. As aSub-Association, the Association has duties and
obligations set forth in the Master Declaration, including, but not limited to, such duties and
obligations as may be delegated to the Association by the Master Association (as hereinafter
defined), pursuant to the Master Declaration.
WPB_163511.3
March 3, 2006
1
Section 1.3 "Association Common Expenses" means all expenses and
assessments incurred by the Association not directly attributable to the operation of this
Condominium and any other condominium whose Unit Owners are members of the
Association, except to the extent (if any) that the pt'opet•tieS or common elements of any such
specific condominium are areas in which all members of the Association have use rights or
receive tangible benefits.
Section 1.4 "Association Common Surplus" means the excess of all receipts
of the Association not attributable to this Condominium's Common Elements or the common
elements of any other condominium whose unit owners are members of the Association, over
the Association's Common Expenses.
Section 1.5 "Association Property" means the property more particularly
described on Exhibit "A-1" hereto, including without limitation, all roads located therein,
together with sidewalks, landscaping, pool, deck and other related areas as more particularly
depicted on Exhibits "B" and "C" hereto and which are owned by the Association for the use
and benefit of the Unit Owners and their tenants, guests and invitees and the owners of all other
units in condominiums governed by the Association and their respective tenants, guests and
invitees.
Section 1.6 "Board of Directors" or "Board" means the Board of Directors of
the Association.
Section 1.7 "Bylaws" means the Bylaws of the Association, as amended from
time to time.
Section 1.8 "Common Elements" means all of the real property of the
Condominium not included in the Units and such other property as may be designated in this
Declaration as being attributable to this Condominium. Common elements are for the use and
benefit of Unit Owners of this Condominium, their tenants, guests and invitees and are not for
the use or benefit of other persons including without limitation unit owners, tenants, guests or
invitees of other condominiums governed by the Association.
Section 1.9 "Common Expenses" means all expenses and assessments
incurred by the Association for the Condominium or as otherwise may be designated in this
Declaration of Condominium, including without limitation, expenses for. the operation,
maintenance and replacement of the Surface Water Management System (as hereinafter
defined).
Section 1.10 "Common Surplus" means the excess of all receipts of the
Association for this Condominium, including, but not limited to, assessments, rents, profits and
revenues on account of the Common Elements, over the amount of Common Expenses.
Section 1.11 "Community" means that certain real property also defined as
Property in the Master Declaration and which is more particularly described therein, as same
may be amended from time to time.
2
WPB 163511.3
March'3, 2006
Section 1.12 "Condominium Act" means the Condominium Act of the State of
Florida (Chapter 718, Florida Statutes) as it exists on the date that this Declaration of
Condominium is recorded in the Public Records of Palm Beach County, Florida.
Section 1.13 "Condominium Building" or "Buildin " means that certain
building constituting the principal improvements located on the land hereby submitted to the
condominium form of ownership, and any other improvements located on land hereafter added
to the Condominium.
Section 1.14 "Condominium Documents" means this Declaration of
Condominium and all of the exhibits hereto, as they may be amended from time to time.
Section 1.15 "Condominium Parcel" means a Unit together with the undivided
share of the Common Elements which is appurtenant to that Unit, unless otherwise defined
elsewhere in this Declaration.
Section 1.16 "Condominium Property" means the land described in
Exhibit "A" submitted to the condominium form of ownership pursuant to this Declaration and
all land hereafter added to the Condominium, all improvements now and hereafter constructed
and situated on said land, including all Units and Common Elements, and all easements and
rights appurtenant thereto, for use in connection with the Condominium.
Section 1.17 "Construction Lender" means the bank, savings and loan
association, insurance company, real estate or mortgage investment trust, pension fund,
mortgage banker or any other lender providing the funds for the development and/or
construction of the Condominium.
Section 1.18 "County" means Palm Beach County, Florida.
Section 1.19 "Declarant" or "Master Declarant" means the Declarant as said
term is defined in the Master Declaration, as same may be amended from time to time.
Section 1.20 "Declarant's Affiliates" means those persons, corporations,
partnerships, limited partnerships, limited .liability companies, or other business entities in
which the Declarant entity has an ownership or other proprietary interest or is expressly
designated by Declarant as an affiliated entity relative to its use, operation, development of or
other activities within the Community.
Section 1.21 "Declaration" or "Declaration of Condominium" means this
instrument, as it may be amended from time to time.
Section 1.22 "Developer" means Cornerstone Tequesta, L.L.C., a Florida
limited liability company, and any successor(s) or assign(s) thereof to which Developer
specifically assigns all or part of the rights of Developer hereunder by an express written
assignment, whether or not recorded in the Public Records. Such written assignment may give
notice as to which rights of Developer are to be exercised and as to which portion(s) of the
Condominium Property such rights apply. In the event of a partial assigmnent, the assignee
shall not be deemed Developer, but may exercise such rights of Developer specifically assigned
3
WPB_163511.3
March 3, 2006
to it. In any event, any subsequent Developer shall not be liable for any default or obligations
incurred by any prior Developer, except as may be expressly assumed by the subsequent
Developer. An Owner shall not, solely by the purchase of a Unit in The Preserve at Tequesta
Townhomes 1, be deemed a successor or assign of Developer under the Condominium
Documents unless such Owner is specifically so designated as a successor or assign of such
rights in the instrument of conveyance or any other instrument executed by Developer. Any
assignment may be made on anon-exclusive basis. The transfer of control of the Association
does not cause a termination of the rights of the Developer. Further, a lender may succeed to
the rights of Developer without assuming the obligations of Developer.
Section 1.23 "Developer's Affiliates" means those persons, corporations,
partnerships, limited partnerships, limited liability companies, or other business entities in
which the Developer entity has an ownership or other proprietary interest or is expressly
designated by Developer as an affiliated entity relative to its use, operation, development of or
other activities within the Condominium Property.
Section 1.24 "Future Development Property" means the property adjacent to
and in the vicinity of the Condominium and may include Association Property, all of which may
be developed into additional condominiums or other residences by Developer or other entities
and as more particularly described in that certain deed recorded in Official
Records Book ,Page of the Public Records of Palm Beach County, Florida.
Section 1.25 "Institutional Mortgagee" means a bank, savings and loan
association, insurance company, real estate or mortgage investment trust, pension fund, agency
of the United States Government, mortgage banker, any other lender generally recognized as an
institutional-type lender, or Developer, which holds a first mortgage on a Unit or Units.
Section 1.26 "Life Safet~S stems" means any and all emergency lighting,
audio and visual signals, safety systems, sprinklers and smoke detection systems, which are now
or hereafter installed in the Building, whether or not within the Units. All such Life Safety
Systems, together with all conduits, wiring, electrical connections any systems related thereto,
regardless of where located, shall be deemed part of the Conunon Elements.
Section 1.27 "Limited Common Elements" means those Common Elements
which are reserved by this Declaration of Condominium, or .assigned, granted or conveyed
separately herefrom pursuant to the terms hereof, for the exclusive use of a certain Unit or Units
to the exclusion of other Units.
Section 1.28 "Master Association" means The Preserve at Tequesta
Maintenance Association, Inc., its successors and assigns, being the entity responsible for the
administration and performance of certain duties as set forth in the Master Declaration (as
hereinafter defined) and in the articles and bylaws of the Master Association.
Section 1.29 "Master Assessments" means all assessments levied by the Master
Association against Owners and Units for the purposes set forth and as defined in the Master
Declaration (as hereinafter defined).
4
WP6 163511.3
March 3, 2006
Section 1.30 "Master Declaration" means .the declaration of the Master
Association more particularly described in Section 1.28 above, as the same may be amended
from time to time.
Section 1.31 "Special Assessments" means assessments for services which the
Association is authorized or required to provide, to the extent that the Assessments are
insufficient to fund such services. Such Special Assessments are more particularly described in
Article 12 of this Declaration.
Section 1.32 "Surface Water Management System" means and refers to those
portions of the Condominium Property which the Master Association is required to maintain
pursuant to the SFWMD Permit, as provided in, if any, Master Declaration, which may include,
but not be limited to, lakes, retention areas, culverts and related appurtenances.
Section 1.33 "SFWMD" means the South Florida Water Management District.
Section 1.34 "SFWMD Permit" means SFWMD Permit No. ,
dated , 200_
Section 1.35 "Unit" means a part of the Condominium that is subject to
exclusive ownership.
Section 1.36 "Unit Owner" or "Owner" means the Owner of a Condominium
Parcel (as defined in Section 1.11 hereof).
Section 1.37 "Utility" or "Utilities" means, all utilities, including but not
limited to, telecommunication, gas, electricity, water and sewer, and garbage and trash disposal.
ARTICLE 2
DESCRIPTION OF THE CONDOMINIUM PROPERTY
Section 2.1 General Description of the Condominium Propertx. The
Condominium Property is situated in the County of Palm Beach, Florida and is more particularly
defined in Section 1.12 hereof. Condominium Units that are .designated as Units in this
Declaration are located in the Condominium Building, together with those certain related
improvements, all as designated on the Graphic Description which is Exhibit "C" hereto.
Section 2.2 Survey and Graphic Description of the Condominium Property.
Exhibit "B" to this Declaration is a site plan (also described as plot plan) and survey of the
Condominium Property. Exhibits "B" and "C", together with this Declaration, identify the
Common Elements and each Unit in the Condominium and their relative size and location.
Exhibits "B" and "C" have been certified in the manner required by F.S. 718.104(4)(e).
Section 2.3 Time Share Estates. Time share estates will not be created or
permitted within the Condominium.
WPB 163511.3
March 3, 2006
This Article 2 may not be amended without the written consent of the
Developer until the date when the Developer no longer holds any Units for sale in the ordinary
course of business.
ARTICLE 3
DEFINITION OF UNITS. COMMON ELEMENTS
AND LIMITED COMMON ELEMENTS
Section 3.1 Units The Condominium contains a maximum total of six (6)
Units which are located and described on the Survey and Plot Plan which is Exhibit "B" hereto.
The boundaries of each Unit are as follows:
(a) Ut,uer and Lower Boundaries. The upper and lower boundaries of
each Unit shall be the following boundaries extended to their planar intersections with the
perimetrical boundaries:
(i) Wiper Boundaries. The horizontal plane of the lowest
surface 'of the unfinished ceiling of the Unit (which will be deemed to be
the ceiling of the upper story if the Unit is a multistory Unit).
(ii) Lower Boundaries. The horizontal plane of the lowest
surface of the unfinished floor of the Unit (which will be deemed to be the
floor of the first story if the Unit is a multistory Unit).
(b) Perimetrical Boundaries. The perimetrical boundaries of the Unit shall
be the vertical planes of the undecorated finished interior of the exterior walls bounding the Unit
extended to their planar intersections with each other and with the Upper and Lower Boundaries.
It is intended by the provisions of this Section 3.1 that those areas
designated as "garages," as depicted on Exhibit "C" hereto be included within the boundaries of
the respective Unit which such garage is designated to be a part of or adjoins. Accordingly, the
Unit boundary descriptions above are also applicable to such garages.
(c) Boundaries -Further Defined. The boundaries of the Unit shall not
include all of those spaces and improvements lying beneath the undecorated and/or unfinished
imler surfaces of the perimeter walls and floors, and those surfaces above the undecorated and/or
inner surfaces of the ceilings of each Unit and, further, shall not include those spaces and
improvements lying beneath the undecorated and unfinished inner surfaces of all interior bearing
walls and/or bearing partitions and, further, shall exclude all chases and columns and all pipes,
ducts, wires, conduit and other facilities running through any interior wall or partition for utility
services to other Units and/or for Common Elements.
(d) Notices and Disclaimers as to Unit Square Footage. The square
footage calculation of each Unit includes all columns, partitions, chases, pipes, conduits,
building systems, limited common elements, interior walls, and wires included within the
aforedescribed Unit boundaries, so that so such item is subtracted from the overall square
6
WP6 163511.3
March 3, 2006
footage of any Unit in measuring such Unit. Each Owner, by acceptance of a deed or other
conveyance of a Unit, understands and agrees that there are various. methods for calculating the
square footage of a Unit, and that depending on the method of calculation, the quoted square
footage of the Unit may vary. Additionally, as a result of in the field construction, other
permitted changes to the Unit, and settling and shifting of improvements, actual square footage
of a Unit may also be affected. By accepting title to a Unit, the applicable Owner(s) shall be
deemed to have conclusively agreed to accept the size and dimensions of the Unit, regardless of
any variances in the square footage from that which may have been disclosed at any time prior to
closing, whether included as part of Developer's promotional materials or otherwise. Without
limiting the generality of this Section 3.1, Developer does not make any representation or
warranty as to the actual size, dimensions (including ceiling heights) or square footage of any
Unit.
(e) Exceptions and Conflicts. In the case of any conflict between the
boundaries of the Unit as above described and the dimensions of the Unit shown on Exhibit "C"
the above provisions describing the boundary of a Unit shall control, it being the intention of this
Declaration that the actual as-built boundaries of the Unit as above described shall control over
erroneous dimensions contained in Exhibit "C" attached hereto, and in the event it shall appear
that any dimension shown on Exhibit "C" attached hereto is erroneous, the Board of Directors
or a majority of the voting interests of the Unit Owners shall have the right to amend the
Declaration without a meeting to correct such survey, and any such amendment shall not require
the joinder of any Institutional Mortgagee so lorig as the purpose of the amendment is merely to
correct an error and correctly describe the boundaries of a Unit. In the case of Unit boundaries
not adequately described as provided above, the survey of the Units contained in Exhibit "C"
shall control in determining the boundaries of a Unit. In the case of any conflict between the
language of this Declaration describing the boundaries of any Unit, and in the language
contained on Exhibit "C" describing the boundaries of a Unit, the language of this Declaration
shall control.
(f) Certain Items Exclusively Serving a Unit. In addition to the area
within the perimetrical and upper and lower boundaries described above, each Unit shall be
deemed to include within its boundaries: all doors, windows, glass, screening, shutters, and any
other materials covering openings in the exterior of the Unit, which serve the Unit exclusively.
Provided however, no alteration of any of the forgoing may be performed without the prior
written approval of the Association.
Section 3.2 Common Elements The term "Common Elements" includes all of
the real property of the Condominium not within Units, together with, and including, without
limitation: (a) easements through Units for all of the following, and the conduits, pipes, ducts,
vents, plumbing, wiring and other facilities, equipment and or fixtures for the furnishing of
Utility services, heating and cooling and/or ventilation to Units and Common Elements and a
Unit or Units other than,. or in addition to, the Unit which such easements, facilities, equipment
and/or fixtures pass through or traverse; (b) easements of support in every portion of a Unit
which contribute to the support of other Units and/or Common Elements; (c) property and
installations, including meters, for the furnishing of Utility services to more than one Unit or to
the Common Elements or to a Unit other than the Unit containing the installation
(notwithstanding the type of metering of such Utility, as more particularly described below and
WP6 163511.3 7
March 3, 2006
notwithstanding the location of such installation and meter, whether ~witliin Units or Common
Elements); (d) fixtures owned or held for the common use, benefit and enjoyment of all Owners
of Units in the Condominium; (e) all stairwells not within the boundaries of any Unit, if any; (f)
all trash facilities; (g) all roofs; (h) all lighting and electrical fixtures wherever located on the
Condominium Property outside the Unit which serve more than one Unit; (i) entries to Units, as
depicted on Exhibit "C" hereto; and (j) those areas dedicated to SFWMD, or otherwise
maintained or administered in accordance with the requirements of the SFWMD Permit,
regardless of the entity or agency responsible for such administration or maintenance, including
but not limited to, any portions of the Surface Water Management System located within the
Condominium Property. The Common Elements include all Limited Common Elements defined
in Section 3.3.
Section 3.3 Limited Common Elements The term "Limited Common
Elements" includes any and all Common Elements which are reserved herein, or assigned, or
granted- separately herefrom, for the use of a certain Unit or Units to the exclusion of other Units,
including, without limitation:
(a) the exclusive use of any porches, terraces, balconies, decks or similar
structures connected with, adjacent to or adjoining the applicable Unit;
(b) that portion of the Condominium Property which is designated on the
Survey, Plot Plan, and/or Graphic Description as Limited Common Elements;
(c) the non-exclusive use of the driveway adjacent to or in close proximity
to the garage of each Unit by the Owner(s) of the Unit(s) served by the applicable driveway, as
designated on Exhibit "C" hereto;
(d) the exclusive use of any balconies and patios adjacent to Units;
This Section 3.3 may be amended only in accordance with Article 16
hereof, but must be adopted by the affirmative vote of the Owners of one hundred percent
(100%) of the Units.
ARTICLE 4
APPURTENANCES TO UNITS/EASEMENTS
In addition to the following easements, which are hereby created, there shall be
appurtenant, and pass with title, to each Unit the rights, shares, and interests provided by the
Condominium Act which shall be deemed to include, without limitation, the following:
Section 4.1 Undivided Share in the Common Elements and Common Surplus
An undivided share in the Common Elements and in the Common Surplus, which share in the
Common Elements cannot be conveyed or encumbered except together with the Unit and which
share is undivided and shall not be subject to an action for partition. The undivided share in the
Common Elements and the Common Surplus of the Condominium appurtenant to each Unit is
based upon the square footage of each Unit in proportion to the total square footage of all Units,
8
WPB 163511.3
March 3, 2006
as set forth in Exhibit "D". The undivided share in the Common Surplus of the Association
appurtenant to each Unit is determined in accordance with the formula set forth in Section 12.1
hereof.
Section 4.2 Limited Common Elements. The right to use exclusively, or in
common with certain other Units. where so specified, those portions of the Common Elements
designated and/or reserved herein and/or granted elsewhere. to a certain Unit or Units as Limited
Common Elements, including, without limitation, the exclusive use rights for the Limited
Common Elements identified in Section 3.3 above.
During such time as the Developer shall own any Unit in the
Condominium, the Developer shall control and have the right (in lieu of the Association) to make
all designations of Limited- Common Elements. Until the Developer shall, in whole or in part,
voluntarily relinquish the right to designate the Limited Common Elements, or until the
Developer no longer owns a Unit, the Association shall not exercise the rights and authority
herein granted to the Association in respect of Limited Common Elements, and all such rights
shall be exclusively exercisable by the Developer. The Developer may at any time by an
instrument in writing delivered to the Association relinquish in whole or in part any of its rights
herein relative to the designation of Limited Common Elements. This provision regarding
Limited Common Elements may not be amended without the written consent of the Developer
during such periods of time as the. Developer shall have any rights hereunder to designate or
control the designation of Limited Common Elements.
Section 4.3 Air Space. An exclusive easement for the use of the air space
occupied by the Unit as it exists at any particular time and as it may lawfully be altered or
reconstructed from time to time, which easement shall be terminated automatically in any air
space which is permanently vacated from time to time.
Section 4.4 Non-exclusive Use of Common Elements. Non-exclusive
easements, to be used and enjoyed in common with the Owners of all Units in the Condominium
in such a manner as not to hinder or encroach upon the lawful rights of other Unit Owners, for
use of those Common Elements not designated elsewhere herein as Limited Common Elements,
including, without limitation, easements for:
(a) the furnishing and maintenance of public Utility services to all parts of
the real property of the Condominium over, across, in and through the land, Buildings and other
improvements, as the fixtures and equipment therefor now exist and/or may be modified or
relocated. Further, some or all Utilities may be metered for the entire project, submetered by
Building or Unit or as otherwise determined from time to time by Developer and/or the Board of
Directors in their respective sole discretion;
(b) vehicular and pedestrian access over, across, upon, in and through the
drives, entries, gates, walks, grounds, and other portions, if any, of the Common Elements as are
intended and/or provided for pedestrian and vehicular traffic throughout the Condominium; and
(c) vehicular and pedestrian access over, across, upon, in and through, and
for parking upon, the Condominium Property.
WPB 163511.3 9
March 3, 2006
Section 4.5 Encroachment. An exclusive easement for the unintentional and
non-negligent encroachment by any Unit upon any other Unit or Common Element, or vice
versa, for any reason not caused by or resulting from the willful or negligent act of Developer or
any Unit Owner or Owners, including without limitation, encroachments caused by or resulting
from the original construction of improvements, which exclusive easement shall exist at all times
during the continuance of such encroachment as an easement appurtenant to the encroaching
Unit or other improvement, to the extent of such encroachment and shall also include an
easement for the maintenance and use of the encroaching Unit.
Section 4.6 Right to Association Membership. The right to membership in the
Association, upon the terms and conditions set forth in Article 5.
Section 4.7 Support. Each Unit and any structure and/or improvement now or
hereafter constructed within the Condominium Property shall have an easement of support and of
necessity and shall be subject to an easement of support and necessity in favor of all other Units,
the Common Elements and such other improvements constructed upon the Condominium
Property.
Section 4.8 Utility and Other Services• Drainage. Non-exclusive easements
are reserved under, through and over the Condominium Property as may be required from time to
time for Utility, cable television, communications and monitoring systems, and other services
and drainage in order to serve the Condominium and/or members of the Association. A Unit
Owner shall do nothing within or outside his Unit that interferes with or impairs, or may interfere
with or impair; the provision of such Utility, cable television, communications and security
systems, or other service or drainage facilities or the use of these easements. Some or all
Utilities may be metered for the entire project, sub-metered by Unit or as otherwise determined
from time to time by Developer and/or Board of Directors in their respective sole discretion.
Section 4.9 Cable TV and Communication Devices. The Developer reserves
unto itself, its successors, assigns, contractors, designees and nominees, (i) ownership of any
closed circuit, master antenna, community antenna or cable television system or the like
(including any and all related conduits, wires, amplifiers, antennas, towers and other apparatus
and equipment) which it (or one of its successors, assigns, designees or nominees) installs in part
or whole on the Condominium Property and/or Association Property (any such system and its
related apparatus and equipment being hereinafter referred to as the "CATV System"), (ii)
Ownership of any digital satellite system and/or device for Internet web-site communication or
the future equivalent (including any and all related conduits, wires, amplifiers, antennas, towers
and other apparatus and equipment) which it or one of its successors, assigns, designees or
nominees) installs in part or in whole on the Condominium Property and/or Association Property
(any such system and its related apparatus and equipment being ,hereinafter referred to as the
"DSS System"), (iii) a perpetual easement over, through and across the Condominium Property
and the Association Property for the installation, servicing, maintenance, repair, replacement and
removal of the CATV System, the DSS System, or any part thereof, (iv) the right to connect the
CATV System and/or the DSS System to whatever receiving source the owner of the CATV
System or the DSS System deems appropriate, (v) the right to enter the Units, upon reasonable
notice to the Unit Owner for the purpose of repairing or replacing any portion of any closed
circuit, master antenna, community antenna, digital satellite dish, or cable television system of
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WPB 163511.3
March 3, 2006
which he has retained ownership, and (vi) the right to provide (or cause to be provided)
mandatory or non-mandatory services to Units through the CATV System and/or the Digital
System (and related, ancillary services to Units, including, but not limited to, security-related
services) at charges not to exceed those normally paid for like services by residents of single-
family homes or condominium units within the general vicinity of the Condominium, and to
retain or assign all such charges. The foregoing reservation will terminate on the date on which
the Developer no longer holds any Units for sale in the ordinary course of business and as to
Association Property, when the Developer no longer holds any unit governed by the Association
for sale in the ordinary course of business.
Section 4.10 Special Telephone Services. The Developer reserves unto itself,
its successors, assigns, contractors, designees and nominees, (i) ownership of any telephone
system whether land based, cellular or the future equivalent (including any and all related
conduits, wires and other apparatus and equipment) which it (or one of its successors, assigns,
designees or nominees) installs in part or whole on the Condominium Property and/or
Association Property (any such system and its related apparatus and equipment being hereinafter
referred to as the "Telephone System"), (ii) a perpetual easement over, through and across the
Condominium Property for the installation, servicing, maintenance, repair, replacement and
removal of the Telephone System or any part thereof, and (iii) the right to provide (or cause to be
provided) mandatory or non-mandatory services to Units through the Telephone System (and
related, ancillary services), and to retain or assign the charges collected from Owners therefor.
The foregoing reservation will terminate on the date on which the Developer no longer holds any
Units for sale in the ordinary course of business, and as to Association Property, when the
Developer no longer holds any unit governed by the Association for sale in the ordinary course
of business.
Section 4.11 Surface Water Drainage and Management S sue.
(a) All Owners acknowledge that the Condominium Property is located
within the boundaries of The Preserve At Tequesta which is within the jurisdiction of the South
Florida Water Management District ("SFWMD").
(b) Maintenance of the Surface Water Management System shall mean the
exercise of practices which allow the systems to provide drainage, water storage, conveyance or
other surface water or stormwater management capabilities as permitted by SFWMD and other
governmental authorities and shall include, but not be limited to, maintenance of specific
drainage easement areas, as 'well as any repair or reconstruction of the surface water or
stormwater management system shall be as permitted, or if modified, as approved by SFWMD.
(c) Neither the Association nor any Unit Owner shall take any action
which modifies the Surface Water Management System, except to the extent the same is
approved by the requisite governmental authorities, including SFWMD.
(d) Portions of the Condominium Property may be burdened with
easements that allow for the installation, operation and maintenance of and for the drainage and
flow of surface water in a manner consistent with the approval and constructed Surface Water
Management System.
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WP6 163511.3
March 3, 2006
(e) The Developer may, in its discretion, cause the Association without
payment of any compensation or purchase price, to convey their ownership interest in, or grant
an easement to, the Surface Water Management System within their respective common
elements and/or Association Property together with easements for access, operation,
maintenance, monitoring, repair, replacement, improvement and/or removal of the Surface Water
Management System. Any such conveyance or grant may, but shall not be required to, assign
responsibilities for operation, maintenance, monitoring, repair, replacement, improvement and/or
removal to SFWMD.
(f) In addition to the requirements for amendments set forth in Article 16
hereof, any amendment or Supplement to this Declaration which would affect the Surface Water
Management System must be approved by SFWMD.
(g) SFWMD shall have the right to enforce, by a proceeding at law or in
equity, the provisions contained in this Declaration which relate to the maintenance, operation,
mornitoring, repair and replacement of the Surface Water Management System.
Section 4.12 Perpetual Easement. Anon-exclusive perpetual easement is
hereby granted for vehicular and pedestrian access over, across, upon, in and through all private
roads within the Association Property, including without limitation, the area designated as the
perimeter road easement, as well as other areas designated for vehicular or pedestrian access to
the pool, decks, and other amenities within the Association Property, for all purposes set forth in
the Master Declaration.
ARTICLE 5
MULTI-CONDOMINIUM ASSOCIATION
Section 5.1 Functions and Duties. The Association shall be responsible for the
maintenance, management and operation of this Condominium, the Association Property and
other condominiums located or to be located on property in close proximity to this Condominium
and designated as The Preserve at Tequesta Townhomes 1 through 9, each a Condominium and
located or to be located within the Future Development Property, together with the maintenance,
management and operation of all improvements and amenities located in the forgoing.
Section 5.2 Membershib, The Owner of each Unit shall become a member of
the Association automatically upon and simultaneously with receipt of a deed of conveyance of
fee title to a Unit from. Developer, or in the case of a conveyance by a grantee or remote grantee
of Developer, upon receipt of a deed evidencing a conveyance of fee title. Membership in the
Association may not be transferred separate and apart from a conveyance of the Unit.
Membership in the Association shall terminate upon conveyance or transfer of the Unit, whether
voluntary or involuntary.
Section 5.3 Voting Rights. There shall be one vote appurtenant to each Unit
and the total number of votes in the Association shall equal the total number of Units in this
Condominium, plus the .total number of units in all other condominiums whose unit owners are
members of the Association. If a Unit Owner owns more than one Unit, the Unit Owner shall be
WPB 163511.3 12
March 3, 2006
entitled to one vote for each Unit owned. If a Unit is owned by more than one person, the
manner in which the vote shall be cast shall be determined in the manner provided in the Bylaws..
The Association will operate multiple condominiums, and accordingly, the voting interests set
forth in this Declaration and the Bylaws are the voting rights attributed to the Unit Owners of
The Preserve at Tequesta Townhomes 1, and to unit owners in all condominiums operated by the
Association. Each unit owner (including all Unit Owners) will have a right to cast his or her vote
as to matters affecting all members of the Association, and as to matters affecting only the
particular condominium in which each unit owner's unit is located. On matters related to a
specific condominium, the voting interests are the rights of the unit owners of that specific
condominium only. On matters related to all members of the Association or the Association
generally and not specific to any condominium, the voting interests are the rights of all members
of the Association.
The only voting interests eligible to vote on questions that involve waiving
or reducing the funding of reserves, or using existing reserve funds for purposes other than
intended, are the voting interests of the units subject to assessment to fund the reserves in
question.
Section 5.4 Association Mana ement. The Association shall have the power
from time to time to enter into agreements with a manager or management company, and to the
extent permitted by law, to delegate maintenance, management, and operational duties and
obligations to such manager or management company.
Section 5.5 Right of Access. The Association shall have the irrevocable right
of access to each Unit during reasonable hours when necessary for pest control purposes and for
the maintenance, repair or replacement of any Common Elements, any Limited Common
Elements, or any portion of a Unit, to be maintained by the Association pursuant to the
Declaration, or at any time for making emergency repairs necessary to prevent damage to the
Common Elements, Limited Common Elements, or to a Unit or Units, including, without
limitation (but without obligation or duty), to close hurricane shutters in the event of the issuance
of a storm watch or storm warning and to do other work reasonably necessary for the proper
maintenance and operation of the Condominium.
Section 5.6 Board of Directors. The business and affairs of the Associations
shall be managed and governed by a Board of Directors. The first Board of Directors shall
consist of three (3) persons who shall serve in accordance with the Bylaws of the Association, a
copy of which is attached hereto and made a part hereof as Exhibit "F". Each of the members
of all succeeding. Board of Directors shall be Members of the Association, or shall be authorized
representatives, officers or employees of a corporate Member of the Association, except for
those Directors who are appointed by Developer.
WPB 163511.3 13
March 3, 2006
ARTICLE 6
MAINTENANCE. REPAIRS AND REPLACEMENTS
Responsibility for maintenance, repairs and replacements of Condominium
Property and. property of Unit Owners located or situated within the Condominium, shall be as
follows and the type of metering of Utilities and location of Utility- meters/installations, as more
particularly described in Section 4.4(a) hereof, shall not alter the maintenance, repair, and
replacement obligations set forth in this Declaration, unless expressly .amended:
Section 6.1 Units. Each Owner shall maintain, repair and replace, as
necessary, all portions of his Unit, including but not limited to the fixtures, equipment and
appliances located therein or exclusively serving the same. Each Owner shall also maintain and
keep the porches, balconies and terraces in an orderly condition, and repair or replace any
damaged improvements therein, including without limitation, screens, terrace or porch flooring
and exterior ceiling fans located on such terraces or porches. Each Unit Owner shall be
responsible for the expense of any incidental damage to Common Elements resulting from
maintenance, repairs and/or ,replacement of or to that Owner's Unit and which damaged
Common Elements shall be repaired/replaced by the Association at the expense of such Unit
Owner. All maintenance, repairs and/or replacements, which are the responsibility and
obligation of Unit Owners, and which, if not performed or omitted, would affect other Units or
Common Elements, shall be performed promptly as the need arises. Notwithstanding the
obligation of Unit Owners to perform maintenance, repair and replacement of and in Units, the
proceeds of all insurance awards or payments under insurance carried by the Association for loss
of or damage to or within Units shall be applied against repairs and replacements to the extent
that such award or payments exceed the deductible provisions of such insurance. If a Unit
Owner fails to perform promptly his responsibilities of repair, maintenance and replacement, the
Association shall be entitled to seek all remedies available at law, including the right to take
legal action to require the Unit Owner to perform the responsibilities.
Section 6.2 Common Elements. Except as set forth above in Section 6.1 to the
contrary, the Association shall be responsible for maintaining, repairing, replacing and keeping
in clean and orderly condition, all of the Common Elements. The Association, at the expense of
the Owners of all Units in the Condominium, shall repair any and all incidental damage to Units
resulting from maintenance,. repairs and/or replacements of or to Common Elements.
Section 6.3 Limited Common Elements. In addition to the obligation of each
Unit Owner to maintain the Unit, as well as all Limited Common Elements appurtenant to the
Owner's Unit, the Association shall be responsible for maintaining, repairing, replacing, and
keeping in clean and orderly condition, any Common Elements designated herein as Limited
Common Elements to the extent that the responsibility for the same has not been specifically
designated herein as the responsibility of the Owner of the Unit to which such Limited Common
Element is an appurtenance. Provided that, the cost of the same shall be borne by the Owner(s)
of the Unit(s) to which- said Limited Common Elements are appurtenant as a Common Expense
if the maintenance thereof is provided on a uniform basis by the Association to all Owner(s). If a
Unit Owner fails to perform promptly his responsibilities of repair, maintenance and
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WPB 163511.3
Mardi 3, 2006
replacement, the Association shall be entitled to seek all remedies available at law, including the
right to take legal action to require the Unit Owner to perform the responsibilities.
Section 6.4 Maintenance and Repair Necessitated by Negligence of Unit
Owners. A Unit Owner shall be responsible for the expense of any maintenance, repair or
replacement rendered necessary by the act, neglect or carelessness of such Unit Owner or his
guests, employees, agents, lessees or other invitees, but only to the extent that such expense is
not met by proceeds of insurance carried by the Association for the applicable loss or damage.
In addition, the Association shall have all rights and remedies set forth in Section 6.1 above.
Section 6.5 Association Right to Perform Remedial Maintenance. The
Association shall have the right, but not the obligation to perform remedial and continuing
maintenance to Units and other areas which are the responsibility of the Unit Owner where it has
been determined by the Association that the Unit Owner having responsibility for the
maintenance of the subject property has failed to properly maintain same in good condition as
determined by the Association in its sole discretion. In such event, the Association shall provide
written notice to the Unit Owner indicating the failure of maintenance and requesting that such
failure be remedied and abated within ten (10) days thereafter. If such failure is not remedied
and abated within said time period, in addition to the rights and remedies of the Association set
forth in Section 6.1 above, the Association shall have the right, but not the obligation to perform
said maintenance and charge the Unit Owner for the cost of such maintenance and repair
performed" by the Association, or its designees.
ARTICLE 7
INSURANCE
Insurance shall be carried and kept in force at all times in accordance with the
provisions of Section 718.111(11) Florida Statutes and the following:
Section 7.1 Duty and Authority to Obtain. The Association shall obtain and
keep in force at all times the insurance coverage which it is required hereby to carry and may
obtain and keep in force any or all of such other or additional insurance coverage as it is
authorized hereby to carry. All insurance obtained by the Association shall be purchased for the
benefit of the Association, the Unit Owners and their mortgagees. The Owner of each Unit shall,
at the expense of such Owner, obtain insurance coverage against damage to and loss of those
portions of the Unit for which the Unit Owner has the maintenance obligation and may obtain
insurance coverage against damage to and loss of the contents of the Unit, personal liability for
injury to and death of persons and damage to and loss of personal property of others; provided,
that each policy of such insurance purchased by a Unit Owner shall, where such provision is
available, provide that the insurer waives its right of subrogation as to any claim or claims
against other Unit Owners, the Association, and their respective employees, agents, guests and
invitees.
Section 7.2 Required Coverage. The Association shall purchase and carry
insurance coverage as follows:
WP6 163511.3 15
March 3, 2006
(a) Casualty Insurance. Casualty insurance covering the Buildings and all
other improvements of this Condominium and the Association Property in an amount equal to
the maximum insurance replacement value thereof (subject to reasonable deductible clauses)
exclusive of excavation and Master costs, as determined annually by the Board of Directors of
the Association, such insurance to afford protection against:
(i) loss or damage by fire or other hazards covered by the
standard extended coverage or other perils endorsement;
(ii) such other risks of a similar or dissimilar nature as are or
shall be customarily covered with respect to buildings and other
improvements similar in construction, location and use, to the Buildings
and all other improvements of this Condominium and of the Association
Property, including, without limitation, vandalism, malicious mischief,
windstorm, water damage and, if available, war risk insurance;
(b) Comprehensive General Public Liability Insurance. Comprehensive
General Public Liability Insurance in an amount not less than One Million Dollars
($1,000,000.00) for single coverage and combined coverage in the amount of Two Million
Dollars ($2,000,000.00) in such forms as shall be required by the Board of Directors of the
Association to protect the Association, and the Owners of all Units, including, without limitation,
hired automobile, non-owned automobile, off-premises employee coverage, water damage and
legal liability, with cross-liability, endorsements to cover liability of all Unit Owners as a group
to each Unit Owner;
(c) Workers Compensation Insurance. Workers Compensation Insurance
to meet the requirements of law;
(d) Flood Insurance. Flood Insurance, if the same shall be necessary
under the laws of the United States for federally related mortgage loans to be made upon Units;
(e) Fidelity Insurance. Fidelity Insurance covering all officers and
employees of the Association and any managing agent who handles Association funds;
(f) Officers' and Directors' Insurance. Officers' and Directors' Insurance
in such amounts as the Board may determine from time to time.
(g) Certificates of Insurance. The Association shall provide, or cause to
be provided, for the Unit Owners, if needed in connection with a sale or purchase of a Unit or
otherwise, Certificates of Insurance indicating the types and amounts of insurance coverage then
in existence relative to the Association;
(h) Waiver by Insurer. Wherever obtainable and practical the insurance
policies shall waive the insurer's right to: (i) subrogation against the Association and against
Unit Owners individually and as a group; (ii) any provision that reserves to the insurer the right
to pay only a fraction of any loss if other insurance carriers have issued coverage upon the same
risk, and (iii) avoid liability for a loss that is caused by an act of the Board of Directors of the
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WPB 163511.3
March 3, 2006
Association, or by a member of the Board of Directors of the Association or by one or more Unit
Owners.
Section 7.3 Optional Cover. The Association shall purchase and carry such
other insurance coverage as the Board of Directors of the Association, in its sole discretion, may
determine from time to time to be in the best interests of the Association and Unit Owners.
Section 7.4 Premiums. Premiums for-all insurance obtained and purchased by
the Association shall be paid by the Association. The cost of insurance premiums, and other
incidental expenses incurred by the Association in administering and carrying out the provisions
of this Section, shall be assessed against and collected from Unit Owners as a Common Expense
or Association Common Expense, as applicable.
Section 7.5 Assured. All policies of insurance obtained and purchased by the
Association shall be for the benefit of the Association, the Owners of Units and their mortgagees,
as their interests may appear, and shall provide that all proceeds covering casualty losses shall be
paid to the "Insurance Trustee," as herein identified, or to its successor, and the proceeds from
insurance against any casualty loss shall be held for the use of the Association, Unit Owners and
their respective mortgagees, as their interests may appear, to be applied or distributed in the
manner herein provided. The Association is hereby constituted and appointed agent for all Unit
Owners and their mortgagees, with authority to negotiate and settle the value and extent of any
and all losses covered under any policy of casualty insurance, and the Association is granted full
right and authority to execute, in favor of any insurer, a release of liability arising out of any
occurrence covered by any policy or policies of casualty insurance and resulting in loss of or
damage to insured property.
Section 7.6 Insurer. All insurance policies shall be issued by an insurer duly
authorized to do business in Florida. All persons beneficially interested in the insurance
coverage obtained, purchased and maintained by the Association shall be bound by the
Association's selection of its insurer(s) and the amount of insurance coverage carried and kept in
force by the Association.
Section 7.7 Insurance Trustee. The Association shall have the right, but not
the obligation, prior to or upon the occurrence of any event causing or resulting in the need for
the same, to designate the Insurance Trustee and all persons beneficially interested in such
insurance coverage shall be bound by the Association's selection of the Insurance Trustee.
(a) Qualifications Rights and Duties. The Insurance Trustee shall be a
bank with trust powers doing business in the State of Florida. The Insurance Trustee shall not be
liable for the payment of premiums, the renewal of any policy or policies of casualty insurance,
the sufficiency of coverage, the form or content of policies, nor for the failure to collect any
insurance proceeds. The sole duty of the Insurance Trustee shall be to receive such proceeds of
casualty insurance as are paid and to hold the same in trust for the purposes herein stated, and for
the benefit of the Association, Unit Owners and their respective mortgagees, to be disbursed as
herein provided. The Association shall pay a reasonable fee to the Insurance Trustee for services
rendered hereunder and shall pay such costs and expenses as the Insurance Trustee may incur in
the performance of its duties hereunder; such fees and costs to be assessed against and collected
17
WP6 163511.3
March 3, 2006
from Unit Owners as a Common Expense or an Association Common Expense, as applicable.
The Insurance Trustee shall be liable only for its willful misconduct, bad faith or gross
negligence, and then only for such money as may come into the possession of the Insurance
Trustee. If and when the Insurance Trustee is required to distribute insurance proceeds to Unit
Owners and their mortgagees as their respective interests may appear the Insurance Trustee may
rely upon a certificate of the President and Secretary of the Association, executed under oath and
provided to the Insurance Trustee upon request; such certificate to certify the name or names of
the Owners of each Unit, the mortgagee(s) thereof, and the respective percentages of any
distribution which is to be made to such Owner(s) and mortgagee(s), as their respective interests
may appear. If and when insurance proceeds are paid to the Insurance Trustee for any casualty
loss, the holder(s) of any mortgage or mortgages encumbering a Unit shall not have the right to
determine or participate in the determination of repair or replacement of any loss or damage and
shall not have the right to elect to apply insurance proceeds to the reduction of indebtedness
secured by such mortgage(s), unless the insurance proceeds represent a distribution to the
Owner(s) of the Unit and the mortgagee(s) thereof, after such insurance proceeds have been first
applied to the repair, replacement or reconstruction of any loss or damage, or unless such
casualty insurance proceeds are authorized to be distributed to the Owner(s) of the Unit and the
mortgagee(s) thereof by reason of loss of or damage to personal property constituting a part of
the Common Elements and as to which a determination is made not to repair, replace or restore
such personal property.
Section 7.8 Association as Insurance Trustee. If the total of the funds to be
received by the Association from insurance proceeds and assessments against Unit Owners for
payment of repair and reconstruction costs is more than One Hundred Thousand Dollars
($100,000.00), or if a majority of affected mortgagees request, then all such sums shall be
deposited by the Association with and disbursed by the Insurance Trustee. In all other cases the
Association may act as Insurance Trustee and shall hold such sums so assessed and collected and
shall disburse the same in payment of the costs of reconstruction and repair as provided in this
Article 7.
Section 7.9 Application of Insurance Proceeds. The proceeds of casualty
insurance paid to the Association or Insurance Trustee by an insurer for loss or damage to real
and/or personal property upon which the Association carries insurance, shall be applied and paid
as follows:
(a) Common Elements Only. The proceeds paid to the Association or
Insurance Trustee for loss of or damage to property constituting Common Elements only shall be
applied to the repair, replacement or reconstruction of such loss or damage. If such insurance
proceeds exceed the cost of the repair, replacement or reconstruction of such Common Elements,
the excess shall be paid by the Association or Insurance Trustee, as applicable, to the Owners of
all Units, and their respective mortgagees, as their interests may appear, in shares or proportions
equal to the undivided interests appurtenant to the cost of the repair, replacement or
reconstruction of such Common Elements, the Association shall deposit with the Insurance
Trustee, from any Association reserve fund which may have been established, the difference
between the total cost of repairing, replacing or reconstructing such loss or damage and the
amount of the insurance proceeds. If no such Association reserve fund has been established, or if
any such Association reserve fund has been established and is insufficient to pay the amount of
WPB 163511.3 18
March 3, 2006
such difference, the Association shall assess the amount of the difference against, and collect it
from, all Unit Owners as a Common Expense.
(b) Common Elements and Units. The proceeds paid to the Association or
Insurance Trustee for loss of or damage to property constituting Common Elements and one or
more Units shall be first applied to the repair, replacement or reconstruction of Common
Elements, then to the repair, replacement or reconstruction of any Unit or Units in the Building
which have been destroyed or damaged. If such insurance proceeds exceed the cost of the repair,
replacement or reconstruction of such Common Elements and Units, the excess shall be paid by
the Association or Insurance Trustee to the Owners of the damaged or destroyed Units and their
respective mortgagees, as their interests may appear, in shares or proportions based upon the
undivided interest appurtenant to each Unit in the Common Elements. If the insurance proceeds
shall be sufficient to pay for the repair, replacement or reconstruction of the Common Elements
but shall be insufficient to pay the cost of the repair, replacement or reconstruction of the
damaged or destroyed Unit or Units, the Association shall charge the Owner(s) of the Unit(s)
damaged or destroyed for the. amount of the difference in the proportion that the amount of
damage sustained by each such Unit bears to the total deficit, and upon receipt of payment,
deposit such sum with the Association or Insurance Trustee to be applied by the Association or
Insurance Trustee toward the total cost of repairing, replacing or reconstructing all of such
damaged or destroyed Common Elements and Units. If the insurance proceeds shall be
insufficient to pay the cost of the repairs, replacements, or reconstruction of the Common
Elements (to which the Association or Insurance Trustee is required first to apply such proceeds
before applying any part thereof to the repair, replacement or reconstruction of Units), the
difference between the total cost of repairing, replacing or reconstructing the Common Elements
and the amount of the insurance proceeds shall be charged by the Association against, and
collected from all Unit Owners, and, in such event, the cost of repairing, replacing or
reconstructing the Unit or Units destroyed or damaged shall be charged to the Owner(s) of such
damaged or destroyed Unit(s).
(c) Association Propert On1X. The proceeds paid to the Association or
Insurance Trustee for loss of or damage to property constituting Association Property only shall
be applied to the repair, replacement or reconstruction of such loss or damage. If such insurance
proceeds exceed the cost of the repair, replacement or reconstruction of such Association
Property, the excess shall be deposited by the Association or Insurance Trustee, as applicable,
into an Association reserve fund for future repairs to, replacement or reconstruction of
Association Property. If the insurance proceeds shall be insufficient to pay the cost of the repair,
replacement or reconstruction of such Association Property, the Association shall deposit with
the Insurance Trustee, from any Association reserve fund which may have been established, the
difference between the total cost of repairing, replacing or reconstructing such loss or damage
and the amount of the insurance proceeds. If no such Association reserve fund has been
established, or if any such Association reserve fund has been established and is insufficient to
pay the amount of such difference, the Association shall assess the amount of the difference
against, and collect it from, all Unit Owners, and all unit owners in all other condominiums
governed by the Association, as an Association Common Expense.
(d) Association Proaertv Common Elements and Units.
WPB 163511.3 19
March 3, 2006
(i) The proceeds paid to the Association or Insurance Trustee
for loss of or damage to property constituting Association Property, .
Common Elements and one or more Units shall be first applied to the
repair, replacement or reconstruction of Association Property, then to the
repair, replacement or reconstruction of any Common Elements, then to
the repair, replacement or reconstruction of any Unit or Units in the
Building which have been destroyed or damaged. If such insurance
proceeds exceed the cost of the repair, replacement or reconstruction of
such Association Property, Common Elements and Unit or Units, the
excess shall be paid by the Association or Insurance Trustee to the Owners
of the damaged or destroyed Units and their respective mortgagees, as
their interests may appear, in shares or proportions based upon the
undivided interest appurtenant to each Unit in the Common Elements.
(ii) If the insurance proceeds shall be sufficient to pay for the
repair, replacement or reconstruction of the Association Property and
Common Elements but shall be insufficient to pay the cost of the repair,
replacement or reconstruction of the damaged or destroyed Unit or Units,
the Association shall charge the Owner(s) of the Unit(s) damaged or
destroyed for the amount of the difference in the proportion that the
amount of damage sustained by each such Unit bears to the total deficit,
and upon receipt of payment, deposit such sum with the Association or
Insurance Trustee to be applied by the Association or Insurance Trustee
toward the total cost of repairing, replacing or reconstructing all of such
damaged or destroyed Units.
(iii) If the insurance proceeds shall be sufficient to pay the costs
of the repairs, replacement or reconstruction of the Association Property
but are insufficient to pay the cost of the repairs, replacement, or
reconstruction of the Common Elements (to which the Association or
Insurance Trustee is required to apply such proceeds before applying any
part thereof to the repair, replacement or reconstruction of Units), the
difference between the total cost of repairing, replacing or reconstructing
the Common Elements and the amount of the insurance proceeds shall be
charged by the Association against, and collected from all Unit Owners,
and, in such event, the cost of repairing, replacing or reconstructing the
Unit or Units destroyed or damaged shall be charged to the Owner(s) of
such damaged or destroyed Unit(s).
(iv) If the insurance proceeds shall be insufficient to pay the
cost of the repairs, replacement or reconstruction of the Association
i Property (to which the Association or Insurance Trustee is required first to
apply such proceeds before applying any part thereof to the repair,
replacement or reconstruction of the Common Elements), the difference
between the total cost of repairing, replacing or reconstructing the
Association Property and the amount of the Insurance Proceeds shall be
charged by the Association against and collected from all Unit Owners
WP6 163511.3 20
March 3, 2006
and all unit owners in all other condominiums governed by the
Association, as an Association Common Expense, and in such event the
cost of repairing, replacing or reconstructing the Association Property
destroyed or damaged shall be charged to the Unit Owners and the unit
owners in all other condominiums governed by the Association in shares
or proportions equal to the undivided interests appurtenant to each Unit in
the Common Elements in this Condominium and the undivided interests
appurtenant to each unit in the other condominiums governed by the
Association, and their respective common elements).
(e) Deposits to Association or Insurance Trustee After Damage. Within
forty-five (45) days after a loss of or damage to Condominium Property and/or Association
Property covered by casualty insurance, the Association shall obtain estimates of the cost of
repairing, replacing or restoring the same, including the cost of professional fees and any
construction bond which the Board of Directors may require. If, from such estimates, it shall
appear that the insurance proceeds payable for such loss or damage will be insufficient to pay the
cost of such repair, replacement or reconstruction, the additional money required to pay the total
cost thereof, whether it is to be paid by one or more Unit Owners, shall be deposited with the
Association or Insurance Trustee not later than thirty (30) days from the day on which the
Association or Insurance Trustee, as applicable, receives the insurance proceeds.
ARTICLE 8
RECONSTRUCTION OR REPAIR AFTER CASUALTY
Whether, and the manner in which, any or all of the Condominium Property
damaged or destroyed by casualty shall be repaired, reconstructed or replaced shall be
determined as follows:
Section 8.1 Damage to Units. If the Units to which more than fifty percent
(50%) of the Common Elements are appurtenant are found by an engineer selected by the Board
of Directors to be untenantable as a result of damage by casualty, then the damaged property will
not be reconstructed and the Condominium will be automatically terminated unless within one
hundred eighty (180) days after the casualty Unit Owners owning a majority or more Qf the
Common Elements agree in writing to such reconstruction. If the damage is to units to which
fifty percent (50%) or less of the Common Elements are appurtenant are found by an engineer
selected by the Board of Directors to be untenantable, then the property will be reconstructed,
unless within one hundred eighty (180) days after the casualty Unit Owners owning a majority or
snore of the Common Elements agree in writing to terminate, as elsewhere provided in the
Declaration or the Florida Condominium Act.
Section 8.2 Certificate. The Insurance Trustee may rely upon a certificate
executed by the President and Secretary of the Association to determine whether or not damaged
or destroyed Association Property or Condominium Property shall be repaired or reconstructed.
Section 8.3 Plans and Specifications. Repair or reconstruction of Association
Property or Common Elements shall be substantially in accordance with the plans and
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specifications pursuant to which the same was originally constructed; provided that the Board of
Directors of the Association may authorize reasonable variations from the original plans and
specifications as tnay appear to them to be necessary or desirable, or if required by applicable
building code, ordinances or laws in existence upon the date of the proposed repairs or
reconstruction. Repair or reconstruction of a Unit shall be substantially in accordance with the
plans and specifications pursuant to which the same was originally constructed; provided that the
Board of Directors, _at the request of the Unit Owner, may authorize reasonable variations from
the original plans and specifications upon receipt by the Association from the Unit Owner of
evidence that the Unit Owner will comply with the obligations set forth in Section 8.4. The
Association will, upon request, furnish the Unit Owner with the original plans and specifications
for the Unit.
.Section 8.4 Responsibilitx. If the damage or destruction shall be limited only
to one or more Units for which the responsibility of maintenance and repair is that of the affected
Unit Owners as set forth in Article 6 hereof, then such Unit Owners shall be responsible for
carrying out the repair or reconstruction thereof. In all other instances of damage or destruction,
the Association shall be responsible for carrying out the repair and reconstruction thereof.
Section 8.5 Construction Funds. All funds for the payment of repair and
reconstruction costs, consisting of insurance proceeds and/or funds collected by the Association
from Unit Owners, shall be disbursed toward payment of such costs in the following manner:
(a) Collection and Disbursement Agent. Insurance collected on account
of a casualty, and the sums assessed against and collected from Unit Owners by the Association
and deposited with the Association or Insurance Trustee, as applicable, shall constitute a
construction fund which shall be disbursed in payment of the costs of repair and reconstruction
in the following manner:
(i) Units. Upon confirmation by the Association, and notice to
the Insurance Trustee, if such Trustee has been designated under this
Article, that the Association has received from the affected Unit Owner(s)
evidence reasonably acceptable to the Association that repair and
reconstruction as required herein has been or will be performed, the
portion of insurance proceeds representing damage for which the
responsibility of repair and reconstruction is upon one or more Unit
Owners shall be paid by the Association or Insurance Trustee to the
affected Unit Owners and, if any of such Units are mortgaged, to the
affected Unit Owners and their mortgagees jointly.
(ii) Association Prouertv/Common Elements Minor Damage.
If the amount of the estimated costs of reconstruction and repair which is
the responsibility of the Association is Two Hundred Fifty Thousand and
no/100 Dollars ($250,000.00) or less, then the construction fund shall be
disbursed in payment of such cost upon the order of the Association;
provided, however, that upon request to the Association or Insurance
Trustee, as applicable, by a mortgagee which is a beneficiary of an
insurance policy the proceeds of which are included in the construction
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March 3, 2006
fund, such fund shall be disbursed in the manner hereafter provided for the
reconstruction and repair of major damage.
(iii) Association Property/Common Elements -Major Damage.
If the amount of the estimated costs of reconstruction and repair which is
the responsibility of the Association is more than
Dollars ($ ), then the construction fund shall be disbursed in
payment of such costs in .the manner required by the Board of Directors of
the Association and upon approval of an architect registered to practice in
Florida and employed by the Association to supervise the work.
(iv) Surplus. It will be presumed that the first monies disbursed
in payment of costs of reconstruction and repair are from insurance
proceeds. If there is a balance in the construction fund after payment of
all costs of the reconstruction and repair for which the fund is established,
such balance will be distributed to the beneficial Owners of the fund in the
manner elsewhere herein stated; except, however, that the part of a
distribution to a beneficial Owner which is not in excess of assessments
paid by such Owner into the construction fund shall not be made payable
to any mortgagee.
(v) Certificate. Notwithstanding anything to the contrary
contained herein, the Insurance Trustee will not be required to determine
whether or not sums paid by Unit Owners upon assessments are to be
deposited by the Association with the Insurance Trustee, nor to determine
whether the disbursements from the construction fund are to be upon the
order of the Association or upon approval of an engineer, an architect or
otherwise, nor whether a disbursement is to be made from the construction
fund, nor to determine the payee nor the amount to be paid, nor to
determine whether surplus funds to be distributed are less than the
assessments paid by Owners. Instead, the Insurance Trustee may rely
upon a certificate of the Association made by its President and Secretary
as to any or all of such matters and stating that the sums to be paid are due
and properly payable and stating the name of the payee and the amount to
be paid; provided that, when a mortgagee is herein required to be named
as payee, the Insurance Trustee shall also name the mortgagee as payee
and when the Association, or a mortgagee which is the beneficiary of an
insurance policy, the proceeds of which are included in the construction
fund, so requires, the approval of such disbursement by an architect or
engineer named by the Association, shall be first obtained by the
Association.
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March 3, 2006
ART]tCLE 9
CONDEMNATION
Section 9.1 Deposit of Awards with Insurance Trustee. The taking of
Association Property and/or Condominium Property by condemnation shall be deemed to be a
casualty, and the awards for that taking shall be deemed to be proceeds from insurance on
account of the casualty and shall be deposited with the Insurance Trustee. Even though the
awards may be payable to Unit Owners, the Unit Owners shall deposit the awards with the
Insurance Trustee; and in the event of failure to do so, in the discretion of the Board of Directors,
the Association may charge a defaulting Unit Owner for the amount of his award, or the amount
of that award shall be set off against the sums hereafter made payable to that Owner.
Section 9.2 Determination Whether to Continue Condominium. Whether the
Condominium will be continued after condemnation will be determined in the manner provided
for determining whether damaged property will be reconstructed and repaired after casualty. For
this purpose, the taking by condemnation shall be deemed to be a casualty.
Section 9.3 Disbursement of Funds. If the Condominium is terminated after
condemnation, the proceeds of the awards and special assessments will be deemed to be
Condominium Property and shall be owned and distributed in the manner provided for insurance
proceeds if the Condominium is terminated after a casualty. If the Condominium is not
terminated after condemnation, the size of the Condominium will be reduced, the Owners of
condemned Units will be made whole and the property damaged by the taking will be made
useable in the manner provided below. The proceeds of the awards and special assessments shall
be used for these purposes and shall be disbursed in the manner provided for disbursement of
funds by the Insurance Trustee after a casualty.
Section 9.4 Unit Reduced but Tenantable. If the taking reduces the size of a
Unit and the remaining portion of the Unit can be made tenantable, as determined by an engineer
selected by the Board of Directors, the award for the taking of a portion of the Unit shall be used
for the following purposes in the order stated and the following changes shall be effected in the
Condominium:
(a) Restoration of Unit. The Unit shall be made tenantable. If the cost of
the restoration exceeds the amount of the award, the additional funds required shall be assessed
against the Owner of the Unit.
(b) Distribution of Surplus. The balance of the award, if any, shall be
distributed to the Owner of the Unit and to each mortgagee of the Unit, the remittance being
made payable jointly to the Owner and mortgagees.
(c) Adiustment of Shares in Common Elements. If the number of Units in
the Condominium is reduced by the taking, the share in the Common Elements appurtenant to all
Units shall be recalculated proportionately by the Association.
Section 9.5 Unit Made Untenantable. If the taking is of the entire Unit or so
reduces the size of a Unit that it cannot be made tenantable, as determined by an engineer
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WP6 163511.3
March 3, 2006
selected by the Board of Directors, the award for the taking of the Unit shall be used for the
following purposes in the order stated and the following changes shall be effected in the
Condominium:
(a) Payment of Award. The award shall be paid first to all Institutional
Mortgagees in an amount sufficient to pay off their mortgages due from those Units which are
not tenantable; and then jointly to the Unit Owners and mortgagees of Units not tenantable in an
amount equal to the fair market value of the Unit immediately prior to the taking and with credit
being given for payments previously reserved for Institutional Mortgagees; and the balance, if
any, to repairing and replacing the Common Elements. The Association's determination of fair
market value of a Unit shall be deemed a conclusive presumption of fair market value of such
Unit.
(b) Addition to Common Elements. The remaining portion of the Unit, if
any, shall become part of the Common Elements and shall be placed in condition for use by all
of the Unit Owners in the manner approved by the Board of Directors; provided that if the cost of
the work shall exceed the balance of the fund from the award for the taking, the work shall be
approved in the manner elsewhere required for further improvement of the Common Elements.
(c) Adjustment of Shares in Common Elements. The shares in the
Common Elements appurtenant to the Units that continue as part of the Condominium shall be
adjusted in an appropriate manner by the Association.
(d) Assessments. If the amount of the award for the taking is not
sufficient to pay the fair market value of the condenuied Unit to the Owner and to renovate the
remaining .portion of the Unit for use as a part of the Common Elements, the additional funds
required for those purposes shall be raised by assessments against all of the Unit Owners who
will continue as Owners of Units after the changes in the Condominium effected by the taking.
The assessments shall be made in proportion to the shares of those Owners in the Common
Elements after the changes effected by the taking.
(e) Arbitration. If the fair market value of a Unit prior to the taking
cannot be determined by agreement between the Unit Owner and mortgagees of the Unit and the
Association within 30. days after notice by either party, the value shall be determined by
arbitration in accordance with the then existing rules of the American Arbitration Association,
except that the arbitrators shall be two appraisers appointed by the American Arbitration
Association who shall base their determination upon an average of their appraisals of the Unit;
and a judgment of specific performance upon the decision rendered by the arbitrators may be
entered in any court of competent jurisdiction. The cost of arbitration proceedings shall be
assessed against all Unit Owners in proportion to the shares of the Owners in the Common
Elements as they exist prior to the changes effected by the taking.
Section 9.6 Taking of Common Elements. Awards for the taking of Common
Elements shall be used to make the remaining portion of the Common Elements useable in the
manner approved by the Board of Directors of the Association; provided, that if the cost of the
work shall exceed the balance of the funds from the awards for the taking, the work shall be
approved in the manner elsewhere required for further improvement of the Common Elements.
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WPB_163511.3
March 3, 2006
The balance of the awards for the taking of Common Elements, if any, shall be distributed to the
Unit Owners in the shares in which they own the Common Elements after adjustment of these
shares on account of the condemnation. If there is a mortgage of a Unit, the distribution shall be
paid jointly to the Owner and the mortgagees of the Unit.
Section 9.7 Taking of Association Property. Awards for the taking of
Association Property shall be used to make the remaining portion of the Association Property
useable in the manner approved by the Board of Directors of the Association; provided, that if
the cost of the work shall exceed the balance of the funds from the awards for the taking, the
work shall be approved in the manner elsewhere required for further improvement of the
Association Property. The balance of the awards for the taking of Association Property, if any,
shall be deposited into an Association reserve -fund for future repairs to, replacement or
reconstruction of Association Property.
Section 9.8 Amendment of Declaration. The changes in Units, in the Common
Elements and in the Ownership of the Common Elements that are effected by condemnation
shall be evidenced by an amendment of the Declaration of Condominium that need be approved
only by a majority of all Directors of the Association.
ARTICLE 10
OWNERSHIP AND USE RESTRICTIONS
In addition to, and not in lieu of any ownership and/or use restrictions as set forth
in the Master Declaration as it will continue to be amended from time to time and as such
ownership and use restrictions may address the same matters set forth below and expand upon or
clarify such restrictions, and in addition to and not in lieu of any use restrictions as to
Association Property that may be adopted from time to time by the Association, the use of the
Condominium Property shall be in accordance with the following provisions so long as the
Condominium exists:
Section 10.1 Units. Each Unit shall be used as a residence only, except as
otherwise herein expressly provided. A Unit may only be occupied by the following persons,
and such persons' families and guests: (i) the individual Unit Owner, or (ii) permitted occupants
under an approved lease or sublease of the Unit (as described below), as the case may be.
Occupants of an approved leased or subleased Unit must be (i) an individual lessee or sublessee
and such persons' families and guests. Under no circumstances may more than one family reside
in a Unit at one time. "Families" or words of similar import used herein shall be deemed to
include spouse, parents, parents-in-law, brothers, sisters, children, grandchildren, unmarried
couples and housekeepers. There are no further restrictions regarding occupancy of Units by
children. In no event shall occupancy exceed two (2) persons per. bedroom. The Board of
Directors shall have the power to authorize occupancy of a Unit by persons in addition to those
set forth above.
Section 10.2 Entity Ownership. If the purchaser or lessee of a Unit is a
corporation, trust or entity other than an individual person, the person who executes the lease or
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March 3, 2006
contract to purchase shall be the primary occupant of the Unit unless the purchaser or lessee
designates otherwise and the approval of such purchase or lease shall be conditioned upon the
approval by the Condominium Association, as applicable, of the primary occupant and of all
other occupants of the Condominium Unit. Such designated primary occupant shall not be
changed more often than once per year. The one year period shall begin on the date of the
written approval of the primary occupant and shall end one year from and after such date. All
other occupants shall be considered as either guests or lessees, as may be appropriate, who shall
be subject to all use and occupancy restrictions provided in this Declaration and in the rules and
regulations of the Association. All such approvals shall be made on forms supplied by the
Association, as applicable.
Section 10.3 Association Property and Common Elements. The Association
Property, Condominium Property, Common Elements and Limited Common Elements shall be
used only for the purposes for which they are intended in the furnishing of services and facilities
for the enjoyment of the Units.
Section 10.4 Nuisances. No noxious, offensive or unlawful activity shall be
carried on within the Association Property or Condominium Property nor shall anything be done
therein or thereon which may be or become an annoyance to Unit Owners, their guests or
invitees. No nuisance shall be permitted within the Association Property or Condominium
Property nor shall any use or practice be permitted which is or becomes a source of annoyance to
Unit Owners or which interferes with the peaceful use and possession thereof by the Unit
Owners. Additionally, nothing shall be done or maintained on any Unit, or upon any Common
Elements, Limited Common Elements, or any portion of the Association Property, which will
increase the rate of insurance on the Association Property, or any Unit, or the Common
Elements, Limited Common Elements or other portions of the Condominium Property, or result
in the cancellation thereof. Nothing shall be done or maintained in any Unit, upon Common
Elements, Limited Common Elements, or any portion of the Association Property which will be
in violation of any law, ordinance, statute, regulation, or rule of any governmental authority
having jurisdiction over the Association Property, Condominium Property or portion of either of
the foregoing or in violation of any provision of this Declaration, the Articles or Bylaws as they
maybe amended from time to time or in violation of any rules and regulations which may be
promulgated by the Board of Directors of the Association from time to time, as elsewhere
provided herein. No waste shall be committed in any Unit, the Common Elements, the Limited
Common Elements or any other portion of the Condominium Property or of the Association
Property.
Notwithstanding the foregouig, each Unit Owner hereby acknowledges
that all activities undertaken by Developer and Developer's Affiliates and their respective
lessees, licensees and designees, shall be deemed as not constituting a nuisance and such
activities and the parties performing them shall be specifically exempted from this provision.
Section 10.5 Sales and Leasing
(a) Sales. No conveyance of a Unit, by parties other than the Developer
or Institutional Mortgagees, shall be valid unless a certificate executed and acknowledged by an
officer of the Association, stating that all Assessments levied against such Unit have been paid in
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March 3, 2006
full, is recorded together with the instrument of conveyance. The Board of Directors shall
furnish such certificate upon receipt from the Unit Owner of a request form (which will be
prepared by the Association) setting forth the proposed purchaser's name, notice address and
date of closing. Each new Owner receiving a conveyance from any party except the Developer
shall notify the Association promptly after becoming a new Owner by delivering a copy of the
deed to the Unit to the Association.
(b) Le sing. Leasing of Units shall be subject to the prior written
approval of the Association. All leases shall be on forms approved by the Association and shall
provide that the Association shall have the right to terminate the lease upon default by the tenant
in observing any of the provisions of this Declaration, the Articles of Incorporation and Bylaws
of the Association, applicable rules and regulations of the Association or other applicable
provisions of any agreement, document or instrument governing the Condominium. No portion
of a Unit (other than an entire Unit) may be leased. Units may be leased only twice each
calendar year and each lease must be for a minimum term of six (6) months. The Unit Owner
and the tenant will be jointly and severally liable to the Association for any damage to
Condominium .and/or Association Property and to pay any claim for injury or damage to
property caused by the negligence of the tenant. All leases shall require a security deposit not to
exceed two months rent for potential damage to the Common Elements and Association
Property, which shall be held by the Association and shall be in an amount determined by the
Board of Directors in its sole discretion, from time to time. All leases shall also comply with and
be subject to the provisions of the balance of Article 10 hereof. The Developer reserves the right
to utilize Units as models or for such other purposes as it sees f t, including, but not limited to,
the sale and leaseback of such Units. Further, Developer retains the right, so long as it holds fee
simple title to any Unit, and subject to the right of the Association to approve any Unit lease, to
establish a plan for leasing any Unit or Units in the Condominium, whether such Unit or Units be
owned by it or not, and thereafter to administer such plan for voluntarily participating Unit
Owners on such terms as Developer may provide.
(c) Continuing LiabilitX. The liability of the Unit Owner under this
Declaration shall continue, notwithstanding the fact that such Owner may have leased, rented or
sub-let said interest as provided herein. Every purchaser, tenant or lessee shall take subject to
this Declaration, the Articles of Incorporation, the Bylaws and rules and regulation, as well as
any other document or instrument governing the Condominium.
(d) Gifts and Devises, etc. Any Unit Owner shall be .free to convey or
transfer such Owner's Unit by gift, to devise such Owner's Unit by will, or to have such Owner's
Unit pass by intestacy, without restriction; provided, however, that each succeeding Unit Owner
shall be bound by, and such Owner's Unit subject to, -all documents and instruments governing
the Condominium.
Section 10.6 Sound Transmission. A Unit Owner, other than Developer, who
desires to install in place of carpeting high quality padding or any hard-surface floor covering
(e.g., marble, slate, ceramic tile, wood, travertine stone, porcelain, tile, ceramic tile, parquet
wood) installed pursuant to this Declaration and the Rules and Regulations. No hard floor
covering material shall be installed in any part of a Unit unless the Unit Owner shall also install a
sound absorbent underlayment beneath it, if applicable, as determined by the Board in its
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March 3, 2006
absolute discretion; in the event said absorption underlayment is required by the Board, the types
of materials required may include padding or a resilient sound absorbing underlayment of fiber
board, cork of such kind and quality or superior to Super SAM (sound abatement mat) sound
isolation material manufactured by National Applied Construction Products, Inc., or other
acceptable material, in accordance with the rules and regulations promulgated by the Rules and
Regulations, as amended from time to time. Such flooring must be approved by the Board prior
to the installation of same. The Unit Owner, other than Developer, shall obtain written approval
of the Board prior to any such installation. If the installation is made without such prior written
approval, the Board may, in addition to exercising all the other remedies provided in this
Declaration, require the offending Unit Owner Ito cover all such hard-surface flooring with
carpeting, or require the removal of such hard-surface flooring at the expense of the offending
Unit Owner. Each Unit Owner, by acceptance of a deed or other conveyance of their Unit,
hereby acknowledges and agrees that sound and impact noise transmission in a building such as
within the Condominium is very difficult to control., and that noises from adjoining or nearby
Units and/or mechanical equipment can be heard in another Unit. The Developer does not make
any representation or warranty as to the level of sound or impact noise transmission between and
among Units and the other portion of the Condominium Property, and each Unit Owner hereby
waives and expressly releases, to the extent not prohibited by applicable law as of the date of this
Declaration, any such warranty and claims for loss or damages resulting from sound or impact
noise transmission. Also, the installation of any improvement or heavy object (including but not
limited to mud set floors) must be submitted to and approved by the Board of Directors, and be
compatible with the overall structural design of the building. The Board of Directors may require
a structural engineer to review certain. of the proposed improvements, with such review to be at
the Unit Owner's sole expense. APPLICABLE WARRANTIES OF THE DEVELOPER, IF
ANY, SHALL BE VOIDED BY VIOLATIONS OF THESE RESTRICTIONS AND
REQUIREMENTS. EACH UNIT OWNER, BY ACCEPTANCE OF A DEED OR
OTHER CONVEYANCE OF THEIR UNIT, AND ALL OF SUCH UNIT OWNER'S
RESIDENTS, GUESTS AND INVITEES HEREBY ACKNOWLEDGE AND AGREE
THAT SOUND AND IMPACT NOISE TRANSMISSION IN A BUILDING SUCH AS
THE CONDOMINIUM IS VERY DIFFICULT TO CONTROL, AND THAT NOISES
FROM NEARBY UNITS, MECHANICAL EQUIPMENT, THE ASSOCIATION
PROPERTY AND/OR NEARBY CONDOMINIUMS OR PROPERTIES CAN AND
WILL BE HEARD IN UNITS. THE DEVELOPER DOES NOT MAKE ANY
REPRESENTATION OR WARRANTY AS TO THE LEVEL OF SOUND OR IMPACT
NOISE TRANSMISSION BETWEEN AND AMONG UNITS, OTHER PORTIONS OF
THE CONDOMINIUM PROPERTY, THE ASSOCIATION PROPERTY AND/OR
NEARBY CONDOMINIUMS OR PROPERTIES AND EACH UNIT OWNER AND ALL
OF SUCH UNIT OWNER'S RESIDENTS, GUESTS AND INVITEES HEREBY WAIVES
AND EXPRESSLY RELEASES, TO THE EXTENT NOT PROHIBITED BY
APPLICABLE LAW AS OF THE DATE OF THIS DECLARATION, ANY SUCH
WARRANTY AND CLAIM FOR LOSS OR DAMAGES RESULTING FROM SOUND
OR IMPACT NOISE TRANSMISSION.
Section 10.7 Parkine.
(a) Parking shall be permitted only in Unit garages, driveways and other
designated parking areas within the Properties. No vehicle shall be parked so as to obstruct or
29
WPB_163511.3
March 3, 2006
otherwise impede ingress or egress to any driveway or roadway. Parking in the Properties shall
be restricted to private automobiles and passenger-type vans, jeeps, pick-up trucks, and sport
utility vehicles, motorcycles, motor scooters .(all of which are collectively referred to herein as
"vehicles"). No trailer, camper, motor home or recreational vehicle shall be used as a residence,
either temporarily or permanently, or parked on the ~'roperties. No more than two (2) vehicles
per, unit are permitted to be kept in the driveway. No vehicle is permitted on the Properties
which leaks oil, brake fluid, transmission fluid or other fluids. No Unit Owner, occupant or other
person shall conduct repairs or restorations on any motor vehicle, or other vehicle, or race the
engine of any vehicle, upon any portion of the Properties. No person shall park, store or keep on
any portion of the PrCpcrtics any large type commercial type vehicle (for example, dump truck,
motor home, trailer, cement mixer truck, oil or gas truck, delivery truck), nor may any person
keep any other vehicle on the Pbp~crtics which is deemed to be a nuisance by the Board,
including, but not limited to, any motorcycle or motor scooter,. particularly where such vehicle is
operated in the early morning or late evening hours. For purposes of this section, "commercial
vehicles" shall mean those which are not designed and used for customary, personal/family
purposes. The absence of commercial-type lettering or graphics on a vehicle shall not be
dispositive of whether it is a commercial vehicle. However, any vehicle containing commercial-
type lettering or graphics shall be deemed to be a commercial vehicle. Visitor parking areas may
be available to Unit Owners, occupants, and their guests and invitees, on designated portions of
the Common Areas. Unit Owners and occupants shall be responsible for removing their
vehicles and other property from their driveways upon the issuance of a tropical storm or
hurricane warning.
(b) The prohibitions on parking contained in this section shall not apply
to temporary parking of: (a) commercial vehicles, such as for construction use or providing
pick-up and delivery and other commercial services; (b) any vehicles of the Declarant, or its
affiliates or designees, used for construction, maintenance, repair, decorating, sales or marketing
purposes; or (c) service vehicles operated in connection with the Association, or its management
companies.
(c) Subject to applicable laws and ordinances, any vehicles, boat,
motorcycle or trailer parking in violation of these or other restrictions contained herein or in the
Declaration, inay be towed by the Association in the sole expense of the owner of such vehicle.
The Association shall not be liable to the owner of such vehicle for trespass, conversion or
otherwise, nor shall it be guilty of any criminal act, by reason of such towing and once the notice
is posted, neither its removal, nor failure of the Owner to receive it for any reason, shall be
grounds for relief of any kind. An affidavit of the person posting the aforesaid notice stating that
it was properly posted shall be conclusive evidence of proper posting.
Section 10.8 Pets and Animals
(a) No more than two (2) household pets (as may be defined and re-
defined by the Condominium Association) shall be maintained in any Unit or any Limited ~
Common Element appurtenant thereto. The maximum total weight of any such household pets
shall be limited to an aggregate of thirty-five (35) pounds. Notwithstanding the foregoing, the
WP6 163511.3 3 ~
March 3, 2006
maximum total weight for any one household pet may not exceed twenty-five (25) pounds.
Household pets shall not be kept, bred or maintained for any commercial purpose and shall not
become a nuisance or annoyance to neighbors. Those pets which, in the sole discretion of the
Condominium Association or Master Association, endanger health, safety, have the propensity
for .dangerous or vicious behavior (such as pit bulldogs or other similar breeds or mixed breeds),
make objectionable noise, or constitute a nuisance or inconvenience to the Owners of other Units
or to the owner of any other portion of the Condominium shall be removed upon request of the
Condominium Association, Board or the Master Association. Unit Owners must pick up all solid
wastes of their pets and dispose of such wastes appropriately. All pets (including cats) must be
kept on a leash of a length that affords reasonable control over the pet at all times, or must be
carried, when outside the Unit. No pet may be kept on a balcony or terrace when its owner is not
in the Unit. Without limiting the generality of the Declaration of Condominium, any violation of
the provisions of this restriction shall entitle the Condominium Association to all of its rights and
remedies, including, but not limited to, the right to fine Unit Owners (as provided in any
applicable rules and regulations) andlor to require any pet to be permanently removed from the
Condominium Property and Association Property. Compliance with this Rule shall not
necessarily establish compliance with rules prohibiting nuisances.
(b) Obnoxious animals, fowl or reptiles shall not be kept or permitted to
be kept in any Unit. The determination of what is or what may be an obnoxious animal, fowl or
reptile shall be determined by the Board of Directors, in their sole discretion.
(c) Unit Owners maintaining pets on the Association Property or
Condominium Property; or whose families, guests, staff, invitees or tenants bring any animal
upon the Association Property or Condominium Property, shall be responsible for,. and bear the
expense of, any damage to persons or property resulting therefrom. Neither the Board nor the
Association shall be liable for any personal injury, death or property damage resulting from a
violation of any of the foregoing and any occupant of a Unit committing such a violation shall
fully indemnify and hold harmless the Board of Directors, the Developer, each Unit Owner and
the Association in such regard.
Section 10.9 Extended Vacation and Absences. In the event a Unit will be
unoccupied for an extended period, in addition to the obligations of Owners and notices to be
provided to the Master Association as provided in the Master Declaration, the Unit Owner must
also notify the Association of such absence and provide to the Association the name and contact
information of the Unit Owner's designee who has a key to the Unit. Under no circumstances
shall the Association have any responsibility of any nature relating to any unoccupied Unit:
Section 10.10 Dampness and Humiditv Miti ation. No Unit Owner shall install,
within his or her Unit, or upon the Common Elements or Association Property, non-breathable
wall-coverings or low-permeance paints. Additionally, any and all built-in casework, furniture,
and or shelving in a Unit must be installed over floor coverings to allow air space and air
movement and shall not be installed with backboards flush against any gypsum board wall.
Additionally, all Unit Owners, whether or not occupying the Unit, shall periodically run the air
conditioning system to maintain the Unit temperature, whether or not occupied, at 7.8°F, to
minimize humidity in the Unit. While the foregoing are intended to minimize the potential
development of molds, fungi, mildew and other mycotoxins, each Owner understands and agrees
WPB_163511.3 31
Marcie 3, 2006
that there is no method for completely eliminating the development of molds or mycotoxins.
The Developer does not make any representations or warranties regarding the existence or
development of molds or mycotoxins and each Owner shall be deemed to waive and expressly
release any such warranty and claim for loss or damages resulting from the existence and/or
development of same. In furtherance of the foregoing, in the event that the Association
reasonably believes that the provisions of this Section 10.10 are not being complied with, then,
the Association shall have the right (but not the obligation) to enter the Unit (without requiring
the consent of the Owner or any other party) to turn on the air conditioning in an effort to cause
the temperature of the Unit to be maintained as required hereby (with all Utility consumption
costs to be paid and assumed by the Unit Owner).
Section 10.11 Antennas Satellite Dishes. No Unit Owner may install any
antenna, satellite dish or other transmitting or receiving apparatus upon his or her Unit (and/or
areas appurtenant thereto), without the prior written consent of the Board of Directors, and then
only to the extent permitted by applicable law.
Section 10.12 Flaa Displace Any Unit -Owner may display one (1) portable.
removable United States flag in a respectful way and, on Armed Forces Day, Memorial Day.
Flag Day, Independence Day and Veterans Day, may display in a respectful way portable,
removal official flags, not larger than 4-1/2 feet by 6 feet, that represent the United States Army,
Navy, Air Force, Marine Corp or Coast Guard.
Section 10.13 Sians. This Section 10.13 shall not apply in any manner to the
Developer. Except as provided for herein or by applicable law, no sign, banner, poster, flag,
notice or advertisement shall be displayed, inscribed or exposed on or at any window or any part
of a Unit that is within public view or any part of the Condominium. The approval of any signs
and posters, including, without limitation, name and address signs, shall be upon such conditions
as may, from time to time, be determined by the Association and may be arbitrarily withheld. In
addition, the Board of Directors, on behalf of the Association, shall have the right to erect
reasonable and appropriate signs on any portion of the Common Elements and/or Association
Property.
Section 10.14 Rules and Regulations. Reasonable rules and regulations
concerning the use of the Condominium Property and the Association Property may be made and
amended from time to time by a majority vote of the Board. The Board shall have the power to
grant variances to the rules and regulations. from time to time. Copies of such regulations and
amendments thereto shall be furnished by the Association to all Unit Owners and residents of the
Condominium upon request.
Section 10.15 Proviso. For so long as Developer holds any Unit in this or any
other condominium governed by the Association for sale in the ordinary course of business,
neither Unit Owners nor the Association nor the use of the Association Property or the
Condominium Property shall interfere with the completion of the proposed improvements and
the sale and marketing of Units. Developer and/or entities in which Developer has an ownership
interest may make such use of the unsold Units and Common Elements, Condominium Property
and Association Property as may facilitate such completion and sale, including, but not limited
to, maintaining a sales office, showing the Condominium Property, Association Property and
WPB_163511.3 32
March 3, 2006
displaying signs and other marketing activities on the Condominium Property and/or Association
Property. Further, Developer retains the right, so long as it holds any Unit for sale in the
ordinary course of business, and subject to the right of the Association to approve any Unit lease,
to establish a plan for leasing any Unit or Units in the Condominium, whether such Unit or Units
be owned by it or not, and thereafter to administer such plan for voluntarily participating Unit
Owners on such terms as Developer may provide.
ARTICLE 11
COMPLIANCE AND DEFAULT
Each Unit Owner shall be governed by and shall comply with the terms of the
Declaration of Condominium, the Articles of Incorporation and Bylaws of the Association, and
any and all rules and regulations adopted pursuant thereto, as they may be amended from time to
time. Failure of the Unit Owner to comply therewith shall entitle the Association or other Unit
Owners to the following relief in addition to the remedies provided by the Condominium Act:
Section 11.1 Remedies. The Association shall be entitled to all rights and
remedies provided by this Declaration of Condominium, the Articles of Incorporation, the
Bylaws, any and all rules and regulations adopted pursuant thereto, the Condominium Act and/or
Florida law.
Section 11.2 Costs and Attorneys' Fees. In any proceeding arising because of
an alleged. failure of a Unit Owner to comply with the terms of the Declaration, the Articles of
Incorporation and Bylaws of the Association, and any and all rules and regulations adopted
pursuant thereto, as they may be amended from time to time, the prevailing party shall be entitled
to recover the costs of the proceeding and reasonable attorneys' and legal assistant's fees (at all
pre-trial, trial, appellate and post judgment proceedings).
Section 11.3 No Waiver of Ri hts. The failure of the Association or any Unit
Owner to enforce any covenant, restriction or other provision of the Condominium Act, this
Declaration, the Articles of Incorporation and Bylaws of the Association, or the rules and
regulations adopted pursuant thereto, shall not constitute a waiver of the right to do so thereafter.
ARTICLE 12
ASSESSMENTS: LIABILITY LIEN AND ENFORCEMENT
The Association has been granted the right to make, levy and collect Assessments
against the Owners of all Units and said Units to provide the funds necessary for proper
operation and management of the Condominium, including, but not limited to, the operation,
maintenance, repair or replacement of the Common Elements. The following provisions shall
govern the making, levying and collecting of Association Assessments and the payment of the
costs and expenses of operating and managing the Condominium.
WPB_163511.3 3 3
March 3, 2006
Section 12.1 Determination of Assessments. Assessments by the Association
against each Owner of a Unit and his Unit shall be the percentage share of the total Assessments
to be made against all Owners in this Condominium as is set forth in the Schedule attached
hereto and made a part hereof as Exhibit "D". Assessments for the operation, maintenance,
repair and/or replacement of the Association Property, and any other Association Common
Expenses, shall be the fractional share of the total assessments to be made against all members of
the Association and the units owned by the members, including without limitation, Unit Owners
and Units in this Condominium, the numerator of which is one (1) and the denominator of which
is the total number of units in all condominiums operated by the Association at the time such
assessment is levied by the Board. Should the Association become the owner of any unit(s) in
this or any other condominium governed by the Association, the Assessment which would
otherwise be due and payable to the Association by the owner(s) of such unit(s) -shall be
apportioned and the Assessments therefor levied ratably as follows: to the extent such
Assessment is for payment of common expenses of the condominium in which the unit is
located, such Assessment shall be apportioned and levied ratably among the owners of all other
units in the condominium; and to the extent such Assessment is for payment of Association
Common Expenses, such Assessment shall be apportioned and levied ratably among the owners
of all units in all condominiums governed by the Association, which are not owned by the
Association, based on their membership interests in the Association.
Unit Owners, future owners and users will share all expenses incurred by the
Association in operating, maintaining, repairing, replacing and insuring the Association Property
(including reserves for deferred maintenance and capital replacement, if not waived in
accordance with the Florida Condominium Act).
Section 12.2 Time for Pa ment. The Assessment levied against the Owner of
each Unit and his Unit in this Condominium shall be payable in quarterly, monthly, or such other
installments and at such time as shall from time to time be fixed by the Board.
Section 12.3 Annual Budget. The Board shall, in accordance with the Bylaws
of the Association, establish, to the extent necessary, annual budgets in advance for each fiscal
year, which shall correspond to the calendar year, which budgets shall estimate all expenses for
the forthcoming year required for the proper operation, management and maintenance of the
Condominium and the Association Property, together with, to the extent required by law or when
deemed necessary or advisable by the Board, a reasonable allowance for reserves, and shall
estimate all income to be collected during the year. Upon adoption of each such annual budget
by the Board, copies thereof shall be delivered to each Unit Owner. All unit owners in each
condominium shall receive a copy of the portion of the budget applicable to all members of the
Association, together with the portion of the budget applicable to that particular condominium.
The Assessments and the Consumptive Use Fees, if any, more particularly described in Section
12.14 hereof, ("Use Fees"), respectively, for the year shall be based upon such budgets;
provided, that failure to deliver a copy of the budgets to any unit owner in the Association shall
not affect the liability of such owner for such Assessment or use fee. Should the Board at any
time, and from time to time, determine, in the sole discretion of the Board, that the Assessments
or Use Fees levied are or may prove to be insufficient to pay the costs of operation and
management of the Condominium, or the Association Property, the Board shall have the
authority to levy such additional Assessments or Use Fees as it shall deem necessary. If such
WP6 163511.3 34
March 3, 2006
additional Assessments or Use Fees are levied, written notice describing the specific purpose or
purposes of the Assessment or Use Fees. will be sent or delivered. to each unit owner subject to
such Assessments. The funds collected pursuant to such additional Assessments or Use Fees
shall be used only for the specific purpose or purposes set forth in such notice, or returned to the
unit owners. However, upon the completion of such specific purpose or purposes, any excess
funds shall be considered Association Common Surplus or Common Surplus, as applicable.
Section 12.4 Special Assessments. Subject to the qualification that any Special
Assessment which is solely for the benefit of this Condominium and/or any other condominium
governed by the Association,. shall be assessed against and paid by only those owners of units in
the applicable condominium, the Association, through its Board of Directors, shall have the
power and authority, from time to time, to levy and collect Special Assessments from each Unit
Owner for the following purposes: the acquisition of real or personal property by the
Association; payment; in whole or in part, of the cost of construction of capital improvements to
the Condominium Property and/or the Association Property, if any, the cost of construction,
reconstruction, unexpected repair or replacement of a capital improvement, including the
necessary fixtures and personal property related thereto; the cost of maintenance or repair of any
property which the Association is obligated to maintain hereunder, including without limitation,
Common Elements; Common Expenses and/or Association Common Expenses, if funds are not
otherwise available therefor from Assessments or reserves; the expense of indemnification of
each director and officer of the Association; and such other purposes deemed appropriate by the
Board of Directors. All notices of Special Assessments from the Association to Owners shall
designate the amount thereof and the date when due. All Special Assessments shall be levied on
the same basis as Assessments described in Section 12.1 of this Declaration, and shall be
collectable in such manner as the Board. of Directors shall determine. The funds collected
pursuant to a Special Assessment shall be used only for the specific purpose or purposes set forth
in such notice. However, upon completion of such specific purpose or purposes, and subject to
the qualification set forth in this Section 12.4, any excess funds will be considered Association
Common Surplus or Common Surplus as applicable, or may, at the discretion of the Board, be
applied as a credit towards future Assessments.
Section 12.5 Reserve Funds. Prior to turnover of control of the Association by
the Developer to Unit Owners other than the Developer, the Developer may vote to waive the
reserves for this Condominium only for the first two (2) years of the operation of this
Condominium by the Association, after which time reserves may only be waived or reduced
upon the vote of a majority of all nondeveloper voting interests in this Condominium, voting in
person or by limited proxy at a duly called meeting of the Association. If a meeting of the Unit
Owners has been called to determine to provide no reserves or reserves less adequate than
required, and such result is not attained or a quorum is not attained, the reserves as included in
the budget shall go into effect.
Unless waived in accordance with applicable law, the Board, in
establishing each annual budget, shall include therein sums to be collected and maintained as
reserves for capital expenditures and deferred maintenance for Common Elements and personal
property held for the joint use and benefit of the Owners of all Units, as required by Section
718.1.12, Florida Statutes. Prior to turnover of control of the Association by the Developer to
Unit Owners other than the Developer pursuant to Section 718.301, Florida Statutes, the
WP6 153511.3 35
March 3, 2006
developer-controlled Association shall not vote to use reserves for purposes other than that for
which they were intended without the approval of a majority of all non-developer voting
interests, voting in person or by limited proxy at a duly called meeting of the Association.
Section 12.6 ContinQencv Funds. In addition to reserves established pursuant to
Section 12.5 hereof, the Board, when establishing each annual budget may, when deemed
necessary or desirable, include therein a sum or sums to be collected and maintained as
contingency funds to provide a measure of financial stability during periods of special stress
when such sums may be used to meet deficiencies from time to time existing as a result of
delinquent payment of Assessments by Owners of Units, as a result of emergencies or for other
reason placing financial stress upon the Association. The annual amount allocated to such
contingency funds and collected therefor, except as required by law, shall not exceed twenty-five
percent (25%) of the current annual Assessment levied against the Owners of all Units. Upon
accrual in the contingency funds of an amount equal to twenty-five percent (25%) of the current
annual Assessment, unless and except to the extent required by law, no further payments shall be
collected from the Owners of Units as a contribution to such contingency funds, unless they shall
be reduced below the twenty-five percent (25%) level, in which event, the annual Assessment
against each Owner and/or Unit may be increased to restore the contingency funds to an amount.
which will equal twenty-five percent (25%) of the current annual amount of said Assessment.
The Unit Owners may call a special meeting of the Association or the Unit Owners may raise
issues pertaining to the contingency funds at a general meeting of the Association as provided for
in the Bylaws. Upon the affirmative vote of a majority of the Unit Owners, the Association may
elect to reduce the levels of the contingency funds below those stated above.
Section 12.7 Use of Association Funds. All monies collected by the
Association shall be treated as the separate property of the Association. Such monies may be
applied by the Association to the payment of any expense of operating and managing the
Condominium or the proper undertaking of all acts and duties imposed upon the Association by
virtue of this Declaration, the Articles of Incorporation and Bylaws. All the monies for annual
Assessments paid to the Association by any Unit Owner may be commingled with monies paid
to the Association by other Unit Owners. All funds and other assets of the Association, and any
increments thereto or profits derived therefrom or from the leasing or use of Common Elements
or the Association Property, including, without limitation, Common Surplus and Association
Common Surplus, shall be held for the benefit of the members of the Association. No member
of the Association shall have the right to assign, hypothecate, pledge or in any manner transfer or
encumber his membership interest therein, except as an appurtenance to his Unit.
Section 12.8 Delinquency or Default: The payment of any Assessment or
installment thereof due to the Association shall be in default if not paid to the Association on or
before the date due. When in default, the delinquent Assessments or installments thereof shall
bear interest from the date due at the highest rate permitted bylaw until the same, and all interest
due thereon, has been paid in full. In addition, when the payment of Assessments is in default,
then upon recording of a claim of lien therefor, the Association shall have the right to accelerate
future Assessments which would not otherwise be due and payable.
Further, each Owner of any Unit by acceptance of a deed therefor or other
conveyance thereof, acknowledges that if the Unit Owner remains in possession of the Unit after
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Mardi 3, 2006
a foreclosure judgment has been entered, the court, in its discretion, may require the Unit Owner
to pay a reasonable rental for the Unit. If the Unit is rented or leased during the pendency of the
foreclosure action, the. Association is entitled to the appointment of a receiver to collect the rent.
The expenses of the receiver shall be paid by the party which does not prevail in the foreclosure
action.
Section 12.9 Personal Liabilitv of Unit Owner. The Owner(s) of each Unit shall
be personally liable, jointly and severally, as the case may be, to the Association for the payment
of all Assessments, regular or special, interest on delinquent Assessments or installments thereof
as above provided,- and for all costs of collecting the Assessments and interest thereon, including
reasonable attorneys' and legal assistants' fees (at all pretrial, trial, appellate and post judgment
proceedings), whether suit be brought or not, levied or otherwise coming. due while such
person(s) or entity own(s) a Unit.
Section 12.10 Liabilitv Not Subject to Waiver. No Owner of a Unit in this
Condominium and all other condominiums governed by the Association may exempt himself
from liability for any Assessment levied against such Owner and his Unit by waiver of the use or
enjoyment of any of the Association Property, Common Elements appurtenant to that Unit
Owner's Unit, abandonment of the Unit, or in any other manner.
Section 12.11 Lien for Assessment. The Association is hereby granted a lien
upon each Unit and its appurtenant undivided interest in the Common Elements, which lien shall
and does secure the monies due for all: unpaid assessments which are due and which may accrue
subsequent to the recording of the claim of lien and prior to the entry of a certificate of title, as
well as interest and all reasonable costs and attorney's fees incurred by the association incident
to the collection process. The lien granted to the Association may be established and foreclosed
in the Circuit Court in and for the County.
Section 12.12 Recording and Priority of Lien. The lien of the Association shall
be effective from and relate back to the recording in the Public Records of the County of this
Declaration. However, as to first mortgages of record, the lien is effective from and after the
recording of a claim of lien as hereinafter described. The Association shall file a claim of lien
stating the Unit encumbered thereby, the name of the record Owner, the name and address of the
Association, the amount due to the Association, and the date such amount was due. The claim of
lien shall secure all Assessments, plus interest, costs, attorneys' and legal assistants' fees, and
which may accrue subsequent to the recording of the claim of lien and prior to the entry of a final
judgment of foreclosure. Such claim of lien shall be signed by an officer or agent of the
Association. Upon full payment of all sums secured by such claim of lien, the same shall be
satisfied of record. The lien of the Association shall be subordinate in the following order of
priority to (a) ad valorem tax liens; and (b) the lien of any first mortgage held by an Institutional
Mortgagee, and (c) liens for Master Assessments subject, however, to the liability of such
mortgagee for assessments as provided in Section 718.116 Florida Statutes. Pursuant to Section
718.120(1), Florida Statutes, ad valorem taxes, benefit taxes and special assessments by taxing
authorities shall be assessed against each Unit and its appurtenant undivided interest in Common
Elements and not upon the Condominium Property as a whole. Such taxes and assessments shall
constitute a lien only upon the Unit and its appurtenant undivided interest in the Common
Elements and not upon any other portion of the Condominium Property.
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Maroh 3, 2006
Section 12.13 Effect of Foreclosure or Judicial Sale. In the event that any person,
firm or corporation shall acquire title to any Unit in this or any other condominium governed by
the Association and its appurtenant undivided interest in Common Elements of this or any other
condominium governed by the Association, by virtue of any foreclosure or judicial sale or any
transfer in lieu thereof, then such person, firm or corporation so acquiring title shall only be
liable and obligated for Assessments of the Association as provided in the Condominium Act.
Any Assessments as to which the party so acquiring title shall not be liable shall be absorbed and
paid in the following manner: the portion of such Assessments attributable to Association
Property, if any, and the Association's proportionate share of assessments due to the Master
Association, if any, shall be apportioned among owners of all units governed by the Association
and the portion of such Assessments attributable to the Common Expenses of this Condominium
shall be apportioned among the Owners of all Units in this Condominium only, in either case,
including the Owner acquiring title through foreclosure or judicial sale, as a part of the Common
Expense, although nothing herein contained shall be construed as releasing the party personally
liable for such delinquent Assessment from the payment thereof or the enforcement of collection
of such payment by means other than foreclosure.
Section 12.14 Fees for Sub-Meterin of Utilities. The Association may, from
time to time (but is not obligated to) collect from Unit Owners and transmit to Utilities and/or
vendors for such Utilities, fees and/or costs charged by such Utilities for their services to
individual Units. Such fees may appear as a line item on the Association budget as a
consumptive use fee ("Consumptive Use Fee") but will not be deemed thereby to be included as
part of Assessments to be paid to the Association by Unit Owners, nor shall such Consumptive
Use Fees be the subject of any lien for Assessments as set forth elsewhere in this Article. The
Association's only role as to such Consumptive Use Fees is to act as a collection and
transmission agent. Enforcement of remedies in the event of the failure of any Unit .Owner to
pay such Fees is strictly between the applicable Utility and the Unit Owner.
Section 12.15 Effect of Voluntary Transfer. When the Owner of any Unit
proposes to lease, sell or mortgage the same in compliance with other provisions of this
Declaration, the Association, upon written request of the Owner of such Unit, shall furnish
within 15 days after receipt of such written request, to the proposed lessee, purchaser or
mortgagee, a statement stating all assessments and other monies which are due and payable to
the Association by the Owner of such Unit with respect to the Unit. Such statement shall be
executed by any officer of the Association and any lessee, purchaser or mortgagee may rely upon
such statement in concluding the proposed lease, purchase or mortgage transaction, and the
Association shall be bound by such statement.
In the event that a Unit is to be leased, sold or mortgaged at .the time when
payment of any Assessment against the Unit Owner and the Unit which is due to the Association
is in default (whether or not a claim of lien has been recorded by the Association) or if at such
time payment of an assessment against the Unit Owner and the Unit is due to the Master
Association, then the rent, sale proceeds or mortgage proceeds, as the case may be, shall be
applied by the lessee, purchaser or mortgagee in the following order: (a) first to the payment of
any delinquent assessments or installment thereof due to the Master Association; (b) second to
payment of any then delinquent Assessment or installment thereof due to the Association; (c)
WPB_163511.3 3 g
March 3, 2006
third, payment of the balance of such rent, proceeds of sale or mortgage to the Owner of the Unit
responsible for payment of such delinquent assessment.
In any transfer of title of a Unit, the grantee shall be jointly and severally
liable with the grantor for all unpaid Assessments against the grantor made prior to the time of
such transfer of title, without prejudice to the rights of the grantee to recover from the grantor the
amounts paid by the grantee therefor. In addition, if the amount due is not paid by the grantor,
the grantee shall pay the amount owed to the Association within thirty (30) days after transfer of
title. Further terms governing transfer of Units are set forth in Section 10.5 hereof.
Section 12.16 No Election of Remedies. All rights, remedies and privileges
granted to the Association or any Unit Owner pursuant to any of the Condominium Documents,
shall be deemed to be cumulative, and the exercise of any one or more shall not be deemed to
constitute an election of remedies, nor shall it preclude the party thus exercising the same from
exercising such other and additional rights, remedies, or privileges as may be available to such
party at law or in equity.
Section 12.17 Additional Assessments. The Assessments provided for in this
Article shall be in addition to, and not in lieu of, all other assessments which may be levied by
the Master Association and/or any other association of which the Unit Owner may be a member.
At the option of the Master Association or such other association, and as provided in their
respective declarations, articles of incorporation, bylaws or rules and regulations, such
association may collect assessments due to such association from Unit Owners through the
Association.
ARTICLE 13
REGISTRY OF OWNERS AND INSTITUTIONAL MORTGAGEES
Section 13.1 Registry. The Association shall at all times maintain a registry of
the names of the Owners and Institutional Mortgagees of all Units. Upon the transfer of title to
any Unit, the transferee shall notify the Association in writing of his interest in such Unit
together with recording information identifying the instrument by which such transferee acquired
his interest in the Unit. The Owner of each Unit encumbered by an Institutional Mortgage shall
notify the Association of the name and address of the Institutional Mortgagee, the amount of
such mortgage, or mortgages, and the recording information identifying the same. The holder of
any Institutional Mortgage encumbering a Unit may notify the Association of any such
mortgage(s), and upon receipt of such notice, the Association shall register in its records all
pertinent information pertaining to the same.
Section 13.2 Notices to Lenders. Upon written request to the Association,
identifying the name and address of the Institutional Mortgagee of an Institutional Mortgage
encumbering a Unit and the Unit number or address, any such Institutional Mortgagee will be
entitled to timely written notice of;
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(a) any condemnation loss or casualty loss which affects a material
portion of the Condominium or any Unit on which there is a first mortgage held, insured, or
guaranteed by such Institutional Mortgagee, as applicable;
(b) any delinquency in the payment of Assessments or charges owed by an
owner of a Unit subject to a first mortgage held by such Institutional Mortgagee which remains
uncured for a period of sixty (60) days;
(c) any lapse, cancellation or material modification of any insurance
policy or fidelity bond maintained by the Association; and
(d) any proposed action which would require the consent of a specified
percentage of mortgage holders.
ARTICLE 14
ALTERATIONS AND IMPROVEMENTS
Any alterations and improvements to the Association Property, the Condominium
Property or any portion of either shall comply with the following:
Section 14.1 Architectural Control. The Association and every person or entity
who acquires title to a Unit acknowledges that the Master Association has the authority to
establish an Architectural Development and Review Board (hereinafter collectively referred to as
the "Architectural Review Board" or the "ARB") which is responsible for reviewing and
approving all plans and specifications for new construction and modifications of existing
buildings in the Community in which the Association Property and the Condominium Property
are each a part. In the event of any conflict between the provisions of this Article 14 and the
provisions of the Master Declaration concerning architectural review and approval, the
provisions of the Master Declaration shall govern and supersede. The Association and every
person or entity who acquires title to a Unit further acknowledges that except as otherwise
expressly authorized herein, no improvements, modifications, alterations or changes may be
made, in any manner to the Association Property or to the Units, the Limited Common Elements,
or any Common Elements on the Condominium Property subject to this Declaration without the
prior written approval of the ARB and the Board of Directors of the Association (or if so
designated by the Board of Directors, a committee appointed by the Board of Directors in
accordance with the Bylaws). In the event of any conflicting decisions between the Association
and the ARB regarding approval or disapproval of proposed new construction, alteration or
improvement, the decisions of the ARB, whether approval or disapproval, shall govern and
supersede and shall be final.
All construction on the Association Property and the Condominium
Property with the exception of construction by Developer, shall be subject to such rules,
regulations, design and construction standards, and setback and building requirements, as may be
promulgated by the Board of Directors of the Association and/or the ARB from time to time.
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Section 14.2 Alterations by Unit Owners Other than Developer. No Unit Owner
other than Developer shall, without first having obtained the written consent of the Board of
Directors of the Association, the A1ZB, and all required governmental approvals and permits,
make any alteration, replacement, decoration, enclosure, or addition to the Association Property
Common Elements (including any Limited Common Element appurtenant to a Unit) or any
exterior portion of the Building (whether a part of a Unit or the Common Elements), except for
replacement of screening or glass in a window or glass door contained in a Unit with screening
or glass similar to the material that is being replaced. Without limiting the generality of the
foregoing, and as examples only, no Unit Owner other than Developer, without having first
obtained the prior consent of the Board of Directors and the ARB shall:
(a) change, modify or remove, in whole or in part, replace, reroute, or
otherwise affect any column, wall or partition, pipe, duct, wire or conduit, or obstruct any
easement herein provided for;
electrical, plumbing, tele ommuni atioln, architecturaleorf struct ral s manner any mechanical,
Building; y em or element of any
(c) remove, or change the style, pattern, material, texture or outside color
of any door, window, screen, exterior ceiling fan, fixture or equipment in or on an exterior of a
Unit or Building wall (including without limitation, any wall situated between a balcony or patio
and the interior of the Unit);
(d) cover, from the inside or outside, the glass or other transparent or
translucent material in any exterior door or window, whether located in a wall adjacent to a
balcony or patio or otherwise, with, or apply or affix thereto, any material or substance which
shall render the same opaque or change the exterior color thereof, except interior draperies,
curtains, shades or shutters which are lined, backed, covered or painted on the side visible from
the exterior with a neutral color or material, any and all of which shall conform to building
standards from time to time promulgated by the Board of Directors;
(e) affix to or over any exterior door or window, whether located in a wall
adjacent to a balcony or patio, or elsewhere, or otherwise install on the exterior of any Unit or
Building, any storm or hurricane shutter which has not been approved by the Association or any
awning or any protective or decorative panel, paneling, trim, enclosure, fixture, or appliance; or
(f) otherwise change, modify or alter (i) the exterior of any Unit, (ii) the
flooring, ceiling or walls (if any) of any balcony or patio, iii the configuration of the space
located within any balcony or patio, or (iv) otherwise modify)any balcony or patio so that it
thereby differs in appearance from the balconies or patios of any other Units of the same type.
(g) make any additions, alterations or improvements to the Life Safety
Systems, and/or to any other portion of the Condominium Property which may impair the Life
Safety Systems or access to the Life Safety Systems. No lock, chain or other device or
combination thereof shall be installed or maintained at any time on or in connection with any
door on which panic hardware or fire exit hardware is required. Stairwell identification and
WPB 163511.3 41
March 3, 2006
emergency signage shall not be altered or removed by any Unit Owner whatsoever. No barrier
including, but not limited to personalty, shall impede the free movement of ingress and egress to
and from all emergency ingress and egress passageways.
Developer will not be required to obtain any of the consents referred to in this Article 14
before altering any Unit which it owns.
Section 14.3 Requests for Approval. All requests by Unit Owners for approval
of alterations or additions shall be submitted to the Board of Directors in writing together with (i)
three (3) copies of such plans and specifications and (ii) such reasonable fees as from time to
time may be fixed by the Board of Directors to defray the expenses of reviewing such requests.
The Board of Directors of the Association shall have a period of thirty (30) days after the date of
its receipt of any such request within which to approve or disapprove the same in its sole
discretion. Approval by the Board may include a consideration of aesthetics and any other
matters as the Board may decide. In no manner shall such approval be interpreted as a
representation by the Board that such plans are in accordance with building, zoning or any other
applicable laws. Any Unit Owner making an addition, alteration, or improvement shall be
deemed to have agreed to indemnify and hold the Association and all other Unit Owners
harmless from all damages and liability which results from such addition, alteration or
improvement. In the event any Unit Owner performs any alterations, improvements,. or additions
without having obtained the consent of the Board of Directors, the Association shall have all
remedies provided by the Condominium Act and the right to seek injunctive relief. In the event
the Board of Directors establishes the ARB, then all references to the Board in this Section 14.3
shall be deemed to mean such Board designated committee. In the event any Unit Owner
performs any alterations, improvements or additions without having obtained the consent of the
ARB, the Master Association remedies shall be as set forth in the Master Declaration and as
provided by law.
Section 14.4 Ownership of Contiguous Units. Any Unit Owner owning two or
more horizontally or vertically contiguous Units may create openings in or remove or alter the
boundary walls or slabs between such Units in such a manner as not to interfere with or encroach
upon any other Units or Common Elements; provided that any such construction by the Unit
Owners shall be upon the following terms and conditions:
(a) The Unit Owner and all record owners of liens on the Unit shall join in
the execution of an amendment to this Declaration, which amendment must also be approved by
a majority of total voting interests of the Association;
(b) the Unit Owner agrees to indemnify and hold harmless the Association
from and against any and all costs, expenses, damages or liabilities (including any damages or
liabilities arising from damage to property or death or injury to persons) which the Association
may suffer or to which the Association may be exposed as a result of the construction and
maintenance of such openings in or alterations to the boundary walls or slabs;
(c) prior to the vesting of title to any of such contiguous Units in an
Owner who is not vested with title to all such contiguous Units, the Unit Owner will restore such
boundary walls or slabs to the location and condition existing immediately prior to any opening,
WP6 163511.3 42
March 3, 2006
removal or alteration of the boundary walls or slabs. If the Unit Owner fails to perform such
restoration, the Association may perform the restoration and charge the affected Units and Unit
Owner for the cost thereof.
Section 14.5 Alterations by the Association.
(a) The Association shall not make any alteration of, addition to, or
expansion of the Common Elements without the prior written approval of the ARB nor shall the
Association make any such alteration of, addition to or expansion of the Common Elements
which requires the expenditure of more than $25,000.00, unless the alteration, addition, or
expansion has also been approved by the Owners of Units to which at least seventy-five percent
(75%) of the Common Elements are appurtenant. The cost of all such alterations, improvements
and/or additions shall be a Common Expense of the Condominium.
(b) The Association shall not make any alteration of, addition to or
expansion of the Association Property without the prior written approval of the ARB nor shall
the Association make any such alteration of, addition to or expansion of the Association Property
which requires the expenditure of more than $50,000.00, unless the alteration, addition, or
expansion has also been approved by the owners of at least seventy-five percent (75%) of the
units governed by the Association, including without limitation the Unit Owners within this
Condominium. The cost of all such alterations, improvements and/or additions shall be an
Association Common Expense.
Section 14.6 Additions Alterations or Im rovements b Develo er. The
foregoing restrictions of this Article 14 shall not apply to Developer owned Units. The
Developer shall have the additional right, without the consent or approval of the ARB, the Board
of Directors or other Unit Owners, to (i) make alterations, additions or improvements, structural
and non-structural, interior and exterior, ordinary and extraordinary, in, to and upon any Unit
owned by it and Limited Common Elements. appurtenant thereto (including, without limitation,
the removal of walls, floors, ceilings and other structural portions of the Building, and the
combining of all or any part of any number of Units that are adjacent to each other into one
Unit); and (ii) expand, alter or add to all or any part of the recreational facilities. Any
amendment to this Declaration (and any zoning or other governmental approvals required in
connection therewith) required by a change made by the Developer pursuant to this Section 14.6
shall not be deemed a material amendment, and no such amendment shall be deemed to be a
material altering of this Declaration in a manner that is adverse to Unit Owners or prospective
Unit Owners (contract purchasers of Units) under the Condominium Act or the rules and
regulations adopted with respect thereto.
In the event such an amendment changes the boundary lines between two
abutting Units, such amendment to this Declaration shall also redistribute between the two Units
involved the interest in the Co_ mmon Elements and share of the Common Surplus and Common
Expenses previously assigned to the two Units involved, in such a manner, that the totals of these
items as reassigned to the two modified Units as a whole shall equal the same totals of these
items previously assigned to the two Units as a whole before such modifications.
WPB 163511.3 43
March 3, 2006
lienors shall have mortgages and liens upon the respective undivided shares of the Unit Owners.
Such undivided shares of the Unit Owners shall be the same as the undivided shares in the
Common Elements appurtenant to the Owners' Units prior to the termination as set forth in
Exhibit "D".
Section 15.5 Amendment.. This Section shall not be amended without consent
of the Owners of at least eighty percent (80%) of the Units and of the holders of at least eighty
percent (80%) of the mortgages on Units.
Section 15.6 Merger. In the event there is proposed a merger of The Preserve at
Tequesta Townhomes 1 Condominium. with another condominium(s), such merger may only
occur with the prior approval of one hundred percent (100%) of the voting interests of all Unit
Owners approving both the merger and the resulting modification of the appurtenances to the
.Units and changing of proportion or percentage share by which the owners of the Condominium
Parcels share Common Expense and Common Surplus and upon approval of all record owners of
liens on Condominium Units. In the event of such a merger, there shall be recorded a new or
amended Articles of Incorporation, Declaration and Bylaws, evidencing the creation of the
merged condominium, as necessary.
ARTICLE 16
AMENDMENT
Except as elsewhere in this Declaration or in the Condominium Act otherwise
provided,, this Declaration may be amended only as follows:
Section 16.1 Amendment by the Association.
(a) Proposal. Amendments to this Declaration may be proposed by the
Board of Directors by resolution adopted by a majority vote of the Directors present at any
regular or special meeting of the Board at which a quorum is present or by the Owners of Units
to which not less than twenty-five percent (25%) of the Common Elements are appurtenant,
whether by vote of such Owners as members of the Association at a special or regular meeting of
the members or by written instrument signed by them. Any amendment to this Declaration so
proposed by the Board or members of the Association shall be transmitted to the President of the
Association, or, in the absence of the President, to a Vice President or other acting chief
executive officer.
(b) Notice. Notice of the subject matter of the proposed amendment to
this Declaration shall be included in the notice of any regular or special meeting of the
Association at which such proposed amendment is to be considered.
(c) Adoption. The proposed amendment may be adopted, and shall
become effective, unless otherwise provided herein by and upon the affirmative vote of the
Owners of a majority of the Units. Such vote may be taken at any meeting at which a quorum is
present. Owners may be present in person or by proxy as allowed by applicable law. In the
alternative, any amendment so proposed may be adopted, without a formal meeting of the
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March 3, 2006
members, by an instrument executed and acknowledged with the formalities of a deed by
members owning a majority of the Units.
Section 16.2 Amendment by Developer to Correct Errors or Omissions. For so
long as Developer owns any Units in the Condominium, Developer may, without joinder or
consent of the Association or any Unit Owner or mortgagee, adopt and record an amendment to
this Declaration for the purpose of correcting a defect, error or omission in or of the Declaration
not materially affecting the rights of Owners, lienors or mortgagees.
Section 16.3 Effective Date and Recording Evidence of Amendment. Any
amendment to this Declaration shall be effective as to members of the Association and persons
having actual knowledge of the adoption of any amendment to this Declaration, (i) as of the date
of adoption or otherwise as may be specified in the resolution or instrument creating the
amendment; and (ii) as to non-members of the Association without actual knowledge of an
amendment to this Declaration, at the time- the affected person acquires actual knowledge thereof
or at the time of filing the amendment or certificate of amendment in the Public Records of the
County, whichever occurs first. The President of the Association, or, in the absence of the
President, a Vice President or other acting chief executive officer of the Association, or Secretary
shall cause to be filed in the Public Records of the County, the original amendment to the
Declaration, if it is in the form of an instrument executed and acknowledged by Unit Owners and
the holders of liens thereon, or a certificate of amendment, if it is a certification by the proper
officers of the Association that such amendment was adopted by the Association at a meeting of
the members. A true and correct copy of each such amendment or certificate of amendment shall
be delivered, forthwith after adoption thereof, to the record Owners of all Units and to the record
Owners of all liens on Units, by the President, Vice President or other acting chief executive
officer of the Association, but delivery of such copies shall not be a condition precedent to the
effectiveness of any such amendment.
Section 16.4 Exceptions. Notwithstanding the foregoing provisions for
adoption of amendments to this Declaration or any other provisions for amendment in the
Condominium Act and except as otherwise provided herein, no amendment shall:
(a) change any "Condominium Parcel" (as defined in the Condominium
Act);
(b) discriminate against any Unit Owner or against any Unit comprising
part of the Condominium Property;
(c) change the share of Common Elements appurtenant to any Unit or
Units or the share of any Unit Owner in the Common Surplus; or
(d) increase the share of any Unit Owner(s) in the Common Expenses or
Common Surplus; unless the record Owners of all affected Units join in the execution and
acknowledgment of such amendment. No amendment to this Declaration shall require the
joinder or consent of any owner of a lien on a Unit unless the amendment materially affects the
rights or interests of such lien owner or is otherwise required by the Federal National Mortgage
WPB 163511.3 47
March 3, 2006
Association or the Federal Home Loan Mortgage Corporation. In any such event, such lien
owner shall not unreasonably withhold its consent.
(e) Change any provision of this Declaration regarding rights,
responsibilities, or obligations as to any Association Property, Association Common Expense or
Association Common Surplus unless approved by at least seventy-five percent (75%) of the
owners of units governed by the Association (including the Unit Owners of this Condominium)
approve of such amendment.
Section 16.5 Developer and Declarant Consent. Notwithstanding anything to
the contrary contained elsewhere in this Declaration, for so long as Developer or Developer's
Affiliates and/or Declarant or Declarant's Affiliates owns one Lot (as defined in the Master
Declaration), Unit. or other real property in the Community, no amendment to this Declaration
may be recorded in the Public Records of the County, without the written consent and joinder of
Developer and/or Declarant, as applicable.
Section 16.6 SFWMD Ap royal. Notwithstanding anything to the contrary in
this Section, any amendment proposed to this Declaration, the Articles of Incorporation and/or
Bylaws which would affect the Surface Water Management System, including environmental
conservation areas, if any, shall be submitted to the SFWMD for review prior to finalization of
the amendment. The SFWMD shall determine if the proposed amendment will require a
modification of the environmental resource or surface water management permit and if a
modification is necessary, the District shall advise the Association. If a permit modification is
necessary, the modification must be approved by the SFWMD prior to the amendment of this
Declaration, the Articles of Incorporation and/or the Bylaws.
ARTICLE 17
ADDITIONAL RIGHTS OF DEVELOPER
In addition to all other rights, privileges and benefits reserved to Developer in this
Declaration, Developer shall also be entitled to the following rights, privileges and benefits:
Section 17.1 Sales Activity. Until such time as Developer has sold all of the
Units in the Condominium, Developer is irrevocably empowered, notwithstanding anything
herein to the contrary, to sell,. mortgage, and/or transfer Units to any persons approved by it, free
and clear of any approval rights or rights of refusal of the Association. Developer shall have the
right to transact on the Condominium Property any business necessary for the offering for sale or
rental of Units, including but not limited to the right to maintain models, have signs for sales or
rentals and otherwise retain employees in its office, use the Common Elements to show Units,
and to use any Unit or Units for Developer's sales offices. Any sales or display office, signs,
fixtures or furnishings or other tangible personal property belonging to Developer shall not be
considered Common Elements and shall remain in the property of Developer. In the event there
are unsold Units, or Developer reacquires any Units, Developer retains the right to be the Owner
thereof and to sell, mortgage and/or transfer said Units without the necessity of obtaining the
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March 3, 2006
approval of the Association and without the payment of any transfer, leasing, processing or other
type or form of fee or charge.
Section 17.2 Control of Association. When Unit Owners other than Developer
own fifteen percent (15%) of the Units in the condominium(s) in the Preserve at Tequesta
Townhomes that ultimately will be operated by the Association, the Unit Owners other than
Developer will be entitled to elect not less than one-third (1/3) of the members of the Board of
Directors of the Association. Unit Owners other than Developer shall be entitled to elect not less
than a majority of the members of the Board of Directors of the Association upon the first to
occur of:
(a) three years after 50 percent of the Units that will be operated
ultimately by the Association have been conveyed to purchasers;
(b) three months after 90 percent of the Units that will be operated
ultimately by the Association have been conveyed to purchasers;
(c) when all the Units that will be operated ultimately by the Association
have been completed, some of them have been conveyed to purchasers, and none of the others
are being offered for sale by Developer in the ordinary course of business;
(d) when some of the Units have been conveyed to purchasers and none of
the others are being constructed or offered for sale by Developer in the ordinary course of
business; or
(e) seven years after recordation of this Declaration.
Developer shall have the right to elect all members of the Board of Directors of the Association
which Unit Owners other than Developer are not entitled to elect as long as Developer holds for
sale in the ordinary course of business any Unit(s) in the Condominium, and Developer shall be
entitled to elect not less than one (1) member of the Board of Directors of the Association as long
as Developer- holds for sale in the ordinary course of business at least five percent (5%) of the
Units in the Condominium. Notwithstanding .the foregoing, Developer shall be entitled at any
time to waive in writing its rights hereunder, and thereafter to vote in elections for members of
the Board of Directors of the Association in the same manner as any other Unit Owner of the
Association, except for purposes of reacquiring control of the Association or selecting the
majority members of the Board.
Section 17.3 Additional Easements. Developer (so long as it owns any Units)
and the Association each shall have. the right to grant such additional utility easements or
relocate any existing utility easements in any portion of the Condominium Property, and to grant
access easements or relocate any existing access easements in any portion of the Condominium
Property, as Developer or the Association shall deem necessary or desirable for the proper
operation and maintenance of the improvements, or any portion thereof, or for the general health
or welfare of the Unit Owners, or for the purpose of carrying out any provisions of this
Declaration, provided that such easements or the. relocation of existing easements will not
prevent or unreasonably interfere with the use of the Units for dwelling purposes.
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Section 17.4 Construction Maintenance. Developer (including its designees,
and employees) shall have the right in its sole discretion from time to time to enter the
Condominium Property for the purpose of completing the construction thereof and perform
construction activities thereon, provided same does not prevent or unreasonably interfere with
the use or enjoyment of the Unit Owners of the Condominium Property.
ARTICLE 18
ASSOCIATION PROPERTY
Section 18.1 Association Property. Each Owner acknowledges that there may
be ongoing activities by the Association and Developer, respectively in, on and about the
Association Property. Such activities may include, without limitation, maintenance activities and
special events undertaken by the Association and Developer. Such activities may at times result
in certain levels of noise, annoyance or inconvenience to Owners. Notwithstanding the existence
of such noise, inconvenience or annoyance, each Owner acknowledges the need for -such
maintenance, repair, replacement and reconstruction activities and special events in order to
maintain and enhance the Association Property and other areas owned or controlled by the
Developer and/or the Association, respectively, and to carry on the functions of the respective
entities. The Association, by its joinder in this Declaration, and each Owner, by acquiring title to
a Unit within the Condominium Property and The Preserve At Tequesta Townhomes, do hereby
release and hold harmless Developer and Developer's Affiliates and their respective officers,
directors, employees and contractors relative to all activities that may be conducted by the
Developer or Developer's Affiliates on or related to the Association Property, Condominium
Property and the .Community. The Association and each Owner hereby acknowledges that the
activities of the Developer and/or Developer's Affiliates, respectively, shall not constitute a
nuisance and shall be specifically exempted from Section 10.4 of this Declaration.
ARTICLE 19
THE PRESERVE AT TEOUESTA MAINTENANCE ASSOCIATION INC
Section 19.1 The Preserve at Tequesta Maintenance Association Inc
Disclosure. Each Owner acknowledges that ownership of property within the Community and
the Condominium Property automatically causes such Owner to become a member of the Master
Association which is governed by that certain Declaration of Covenants, Restrictions and
Easements for The Preserve at Tequesta, recorded , 200_ in the Official Records,
Book ,Page of the Public Records of Palm Beach County, Florida (the
"Master Declaration"). Each Owner further acknowledges that the Master Association may be
the owner of or otherwise responsible for the maintenance of certain improvements, including,
without limitation, roadways, pedestrian paths, perimeter areas, buffer areas, entry ways and
guardhouses which may be located within the Community. By virtue of becoming an Owner of
property within the Community, each Owner also becomes a member of the Master Association
and thereby becomes responsible for the payment of certain assessments to the Master
Association. The Association may, from time to time, be the collecting agent for those
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WPB 163511.3
March 3, 2006
assessments payable by Owners to the Master Association. Further, each Owner, by virtue of
such ownership, shall be responsible for the performance of those obligations and shall abide b~
those covenants, regulations, rules and restrictions contained in the Master Declaration.
Section 19.2 Supremacy of Master Declaration. The Association, its Board of
Directors and all committees thereof shall be subject to all superior rights and powers which
have been conferred upon the Master Association pursuant to the Master Declaration, articles of
incorporation and bylaws. The Association shall take no action in derogation of the rights of, or
contrary to the interests of, the Master Association.
ARTICLE 20
SUB-ASSOCIATIONS
Section 20.1 Cumulative Effect: Conflict. The covenants, restrictions and
provisions of the Master Declaration shall be cumulative with those of this Declaration,
provided, however, that in the event of conflict between or among any such covenants,
restrictions and provisions, or the Articles of Incorporation, Bylaws, rules and regulations,
policies or practices adopted or carried out pursuant thereto and, as may be limited by Florida
Statutes, as amended to the date hereof, as applicable, those of the Association shall be subject
and subordinate to the Master Declaration. The foregoing priorities shall apply, but not be
limited to, the, liens for assessments created in favor of the Master Association and this
Association (as provided elsewhere in this Declaration and the Master Declaration).
Section 20.2 Use Restrictions. Each of the Master Association and this
Association shall have the power to enforce their own respective use restrictions, provided that in
the event of conflict, the more stringent restrictions shall control and provided further that if the
Association fails to enforce its restrictions, the Master Association shall have the absolute right,
but not the obligation, to do so and to allocate the cost thereof to the Association which shall
promptly pay for same or reimburse the Master Association.
Section 20.3 Delegation of Other Duties. The Master Association shall have the
right, but not the obligation, to delegate to the Association on an exclusive or non-exclusive
basis, such duties as the Master Association shall deem appropriate. Such delegations shall be
made by written notice to the Association, which shall be effective no earlier than thirty (30)
days from the date such notice is given. Any delegation made pursuant to the Master
Declaration may be modified or revoked by the Master Association at any time.
Section 20.4 Acceutance of Delegated Duties. Whenever the Master
Association delegates any duty to the Association pursuant to the Master Declaration, the
Association shall be deemed to have automatically accepted same and to have agreed to
indemnify, defend and hold harmless the Master Association for all liabilities, losses, damages
and expenses (including attorneys' fees actually incurred and court costs, through all appellate
levels) arising from or connected with the Association's performance, non-performance or
negligent performance thereof.
51
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Mardt 3, 2006
Section 20.5 Master Association Offices. The Master Association hereby
reserves the right to locate an office or offices for the Master Association in a building or
buildings located within the Community and at such place as may be designated by the Declarant
from time to time until Declarant transfers control of the Master Association in accordance with
the Master Declaration. All costs associated with the construction, ownership, lease and
maintenance of the Master Association's offices are General Expenses of the Master
Association.
Section 20.6 Master Association Activities. Each Owner and the Association
acknowledges that there shall be ongoing activities by the Master Association and Declarant,
respectively. Such activities may include, without limitation, maintenance activities and special
events undertaken by the Master Association and/or Declarant, respectively. Such activities may
at times result in certain levels of noise, annoyance or inconvenience to Owners and other
residents within the Community and the Condominium Property. Notwithstanding the existence
of such noise, inconvenience or annoyance, the Association and each Owner acknowledges the
need for such maintenance activities in order to maintain the Master Association facilities, and
other areas owned or controlled by the Declarant or Master Association, respectively, and to
carry on the functions of the respective entities. The Association and each Owner further
acknowledge that such activities such are customary activities incident to the operation of the
Master Association. The Association by its joinder in this Declaration and each Owner, by
acquiring title to a Unit within the Condominium Property, do hereby release and hold harmless
Declarant, Declarant's Affiliates, the Master Association and their respective officers, directors,
employees and contractors relative to all activities that may be conducted by the Master
Association, Declarant or Declarant's Affiliates, respectively, on or related to the Community,
including the Condominium Property. The Association and each Owner hereby acknowledge
that the activities of the Master Association, Declarant and Declarant's Affiliates, respectively,
shall not constitute a nuisance and shall be specifically exempted from Section 10.4 of this
Declaration.
ARTICLE 21
MISCELLANEOUS
Section 21.1 Notices and Disclaimers as to Access Control Systems.
Developer, Developer's Affiliates, Declarant, Declarant's Affiliates, this Association and the
Master Association or their respective successors, assigns or franchisees and any applicable
cable telecommunications system operator (an "Operator") may, but are not obligated to, enter
into contracts for the provision of alarm, life safety, emergency call or monitoring services
through any Access Control Systems. DEVELOPER, DEVELOPER'S AFFILIATES,
DECLARANT, DECLARANT'S AFFILIATES, THE ASSOCIATION AND THE
MASTER ASSOCIATION, THEIR RESPECTIVE OFFICERS, .BOARDS OF
DIRECTORS, PARTNERS, EMPLOYEES, AGENTS, CONTRACTORS,
SUBCONTRACTORS, AND THEIR FRANCHISEES, AND ANY SUCCESSOR, ASSIGN
OR FRANCHISEE OF ANY OF THE FOREGOING, AND ANY OPERATOR
(HEREINAFTER COLLECTIVELY THE "LISTED PARTIES"), DO NOT
GUARANTEE OR WARRANT, EXPRESSLY OR IMPLIEDLY, THE
52
WPB 163511.3
March 3, 2006
MERCHANTABILITY OR FITNESS FOR USE OF ANY SUCH ACCESS CONTROL
SYSTEM OR SERVICES, OR THAT ANY SYSTEM OR SERVICES WILL PREVENT
INTRUSIONS, FIRES OR OTHER OCCURRENCES, OR THE CONSEQUENCES OF
SUCH OCCURRENCES, REGARDLESS OF WHETHER OR NOT THE SYSTEM OR
SERVICES ARE DESIGNATED TO CE N BY THE CCES S CONTROOL SYSTEMS
OCCUPANT OF PROPERTY SERVI
ACKNOWLEDGES THAT THE LISTED PARTIES ARE NOT INSURERS OF THE
OWNER'S OR OCCUPANT'S PROPE W L ~ NOT BE RE5PONSIB E OROLIABLE
LOCATED ON THE PREMISES AND
FOR LOSSES, INJURIES OR DEATHS RESULTING FROM SUCH OCCURRENCES.
It is extremely difficult and impractical to determine the actual damages, if any, which may
proximately result from a failure on the part of an alarm or monitoring service provider to
perform any of its obligations with respect to such services and, therefore, every Owner or
occupant of property receiving security services through the Access Control Systems agrees that
the Listed Parties assume no liability for loss or damage to property or for personal injury or
death to persons due to any reason, including without limitation, failure in transmission of an
alarm, interruption of other service or failure to respond to an alarm because of (a) any failure of
the Owner's system; (b) any defective or damaged equipment, device, line or circuit; (c)
negligence, active or otherwise, of the service provider or its officers, agents or employees; or (d)
fire, flood,. riot, war, terrorism, act of God or other similar causes which are beyond the control
of the service provider.
Subject to the provisions of Chapter 718, Florida Statutes, as amended to the date hereof,
EVERY OWNER OR OCCUPANT OF PROPERTY OBTAINING SECURITY, LIFE
SAFETY, OR EMERGENCY CALL SERVICES THROUGH THE ACCESS CONTROL
SYSTEMS FURTHER AGREES FOR THEMSELVES, THEIR TENANTS, GUESTS,
INVITEES, LICENSEES, AND FAMILY MEMBERS THAT IF ANY LOSS, DAMAGE,
INJURY OR DEATH SHOULD RESULT FROM A FAILURE OF PERFORMANCE OR
OPERATION, OR FROM DEFECTIVE PERFORMANCE OR OPERATION, OR FROM
IMPROPER INSTALLATION, MONITORING OR SERVICING OF THE SYSTEM, OR
FROM NEGLIGENCE, ACTIVE OR OTHERWISE, OF THE SECURITY SERVICE
PROVIDER OR ITS OFFICERS, AGENTS, OR EMPLOYEES, THE LIABILITY, IF
ANY, OF THE LISTED PARTIES FOR LOSS, DAMAGE, INJURY OR DEATH
SUSTAINED SHALL BE LIMITED TO A SUM NOT EXCEEDING TWO HUNDRED
FIFTY AND NO/100 U.S. DOLLARS ($250.00), WHICH LIMITATION SHALL APPLY
IRRESPECTIVE OF THE CAUSE OR ORIGIN OF THE LOSS OR DAMAGE AND
NOTWITHSTANDING THAT THE LOSS OR DAMAGE RESULTS DIRECTLY OR
INDIRECTLY FROM NEGLIGENT PERFORMANCE, ACTIVE OR OTHERWISE, OR
NON-PERFORMANCE BY ANY OR ALL OF THE LISTED PARTIES. FURTHER, IN
NO EVENT WILL THE LISTED PARTIES BE LIABLE FOR CONSEQUENTIAL
DAMAGES, WRONGFUL DEATH, PERSONAL INJURY OR COMMERCIAL LOSS,
NOR SHALL ANY OWNER OR OCCUPANT OF ANY PROPERTY, THE OWNER'S
TENANTS, GUESTS, INVITEES, LICENSEES AND FAMILY MEMBERS BE DEEMED
TO HAVE RELIED UPON ANY REPRESENTATION OR WARRANTY, EXPRESS OR
IMPLIED, INCLUDING ANY WARRANTY OF MERCHANTABILITY OR FITNESS
FOR ANY PARTICULAR PURPOSE RELATIVE TO ANY SECURITY MEASURES,
LIFE SAFETY SYSTEM, AND EMERGENCY CALL SYSTEM THAT MAY HAVE
WPB 163511.3
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53
BEEN RECOMMENDED, UNDERTAKEN OR INSTALLED WITHIN THE
CONDOMINIUM PROPERTY AND/OR THE ASSOCIATION PROPERTY.
In recognition of the fact that interruptions in cable television and other Access Control
Systems services will occur from time to time, no person or entity described above shall in any
manner be liable, and no user of any Access Control System shall be entitled to refund, rebate,
discount or offset in applicable fees, for any interruption in Access Control Systems services,
regardless of whether or not same is caused by reasons within the control of the then provider(s)
of such services.
Section 21.2 Notices and Disclaimers As To Security. The Association may,
but shall in no manner be obligated to maintain or support certain activities within the
Condominium Property or Association Property designed to make the Property safer than they
otherwise might be. NONE OF THE LISTED PARTIES SHALL IN ANY MANNER BE
DEEMED TO BE INSURERS OR GUARANTORS OF SECURITY WITHIN THE
CONDOMINIUM PROPERTY AND/OR ASSOCIATION PROPERTY. NONE OF THE
LISTED PARTIES SHALL BE HELD. LIABLE FOR ANY LOSS OR DAMAGE BY
REASON OR FAILURE TO PROVIDE THE SECURITY OR THE INEFFECTIVENESS
OF SECURITY MEASURES UNDERTAKEN, IF ANY.
All Owners and occupants of a Unit and their respective guests, tenants,
invitees, licensees and family members, as applicable, acknowledge that the Listed Parties in no
manner represent or warrant that any controlled-access gate, fire protection system (including,
without limitation, any fire sprinkler system), alarm system or other security system, may not be
compromised or circumvented, that any life safety, fire protection system, burglar alarm,
controlled access gate or other security systems will prevent loss by fire, smoke, robbery,
burglary, theft, hold-up, or otherwise, nor that fire protection systems, burglar alarms, controlled
access gates or other security systems will in all cases provide the detection ox protection for
which the system is designed or intended.
EACH OWNER AND OCCUPANT OF ANY UNIT, AND THEIR RESPECTIVE
GUESTS, TENANTS, AND INVITEES, AS APPLICABLE, ACKNOWLEDGES AND
UNDERSTANDS THAT THE LISTED PARTIES ARE NOT INSURERS AND THAT
EACH OWNER AND OCCUPANT AND THEIR RESPECTIVE GUESTS, TENANTS,
INVITEES, LICENSEES AND FAMILY MEMBERS ASSUME ALL RISKS FOR LOSS
OR DAMAGE TO PERSONS, TO UNITS, AND IMPROVEMENTS THEREON AND TO
THE CONTENTS OF UNITS, AND FURTHER ACKNOWLEDGES. THAT THE
LISTED PARTIES HAVE MADE NO REPRESENTATIONS OR WARRANTIES, NOR
HA5 ANY OWNER OR OCCUPANT, OR THEIR RESPECTIVE GUESTS, TENANTS,
INVITEES, LICENSEES AND FAMILY MEMBERS RELIED UPON ANY
REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY
WARRANTY OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR
PURPOSE, RELATIVE TO ANY LIFE SAFETY SYSTEM, FIRE PROTECTION
SYSTEM, BURGLAR ALARM, CONTROLLED ACCESS GATE, OR OTHER
SECURITY SYSTEMS RECOMMENDED OR INSTALLED FOR ANY SECURITY
MEASURES UNDERTAKEN WITHIN THE CONDOMINIUM PROPERTY AND THE
ASSOCIATION PROPERTY. EACH OWNER AND OCCUPANT OF ANY UNIT AND
WPB 163511.3
March 3, 2006
54
THEIR RESPECTIVE GUESTS, TENANTS, INVITEES, LICENSEES AND FAMILY
MEMBERS ACKNOWLEDGES AND UNDERSTANDS THAT THE PRESERVE AT
TEQUESTA TOWNHEACH COUNTYOFLIORIDAIAND SERVICED BY THE POLICE
TEQUESTA, PALM B
AND FIRE DEPARTMENT OF Y OF T~ OWNERS AND SALE OC C PANTS OF
RESPONSIBLE FOR THE SAFET
UNITS. ALL OWNERS ARE ADVISED TO NOTIFY THE APPLICABLE AUTHORITY
OF PALM BEACH COUNHE O PRESERVED AAT HOTEQUESTAT TOWNHOMES T 1
EMERGENCIES AT
CONDOMINIUM.
Section 21.3 Notice and Disclaimer as to Water Bodies. NONE OF THE
LISTED PARTIES SHALL BE LIABLE OR RESPONSIBLE FOR MAINTAINING OR
ASSURING THE SHORELINE, WATER QUALITY OR LEVEL IN ANY LAKE, POND,
CANAL, CREEK, STREAM, WATERFALL OR OTHER WATER BODY WITHIN,
ADJACENT TO OR NEAR THE CONDOMINIUM PROPERTY OR THE
ASSOCIATION PROPERTY, EXCEPT AS SUCH RESPONSIBILITY MAY BE
SIGNIFICANTLY IMPOSED BY, OR CONTRACTED FOR WITH, AN APPLICABLE
GOVERNMENTAL OR QUASI-GOVERNMENTAL AGENCY OR AUTHORITY.
THERE IS NO GUARANTEE BY THE LISTED PARTIES THAT ANY SHORELINE
OR WATER LEVELS WILL BE CONSTANT OR AESTHETICALLY PLEASING AT
ANY PARTICULAR TIME. FURTHER, ALL OWNERS AND USERS OF ANY
PORTION OF THE PROPERTY LOCATED ADJACENT TO OR HAVING A VIEW OF
ANY OF THE AFORESAID WATER BODIES SHALL BE DEEMED, BY VIRTUE OF
THEIR ACCEPTANCE OF THE DEED TO A UNIT OR USE OF SUCH PROPERTY,
TO HAVE AGREED TO HOLD HARMLESS THE LISTED PARTIES FOR ANY AND
ALL CHANGES IN THE CONDITION, SHORELINE, QUALITY AND LEVEL OF THE
WATER IN SUCH BODIES. THE MASTER ASSOCIATION, THE ASSOCIATION,
CONTRACTORS, SUBCONTRACTORS, LICENSEES AND OTHER DESIGNEES
MAY, FROM TIME TO TIME, EXCAVATE, CONSTRUCT AND MAINTAIN LAKES
AND WATER BODIES WITHIN OR IN PROXIMITY TO THE CONDOMINIUM
PROPERTY. NOTWITHSTANDING THE FOREGOING, EXCAVATION OR
CONSTRUCTION OF WATER BODIES SHALL BE PROHIBITED UNLESS
AUTHORIZED BY THE ASSOCIATION AND GOVERNMENTAL BODIES OR
AGENCIES HAVING JURISDICTION. IN THE EVENT THAT THE EXCAVATION
OR CONSTRUCTION OF WATER BODIES IS NOT AUTHORIZED BY THE
ASSOCIATION AND SAID GOVERNMENTAL BODIES OR AGENCIES, SUCH
EXCAVATION OR CONSTRUCTION MAY NOT TAKE PLACE. BY THE
ACCEPTANCE OF THE DEED OR OTHER CONVEYANCE OR MORTGAGE,
LEASEHOLD, LICENSE OR OTHER INTEREST, AND/OR BY USING ANY PORTION
OF THE PROPERTY, EACH SUCH OWNER, OCCUPANT OR USER
AUTOMATICALLY ACKNOWLEDGES, STIPULATES AND AGREES: (i) THAT
NONE OF THE AFORESAID ACTIVITIES SHALL BE DEEMED NUISANCES OR
NOXIOUS OR OFFENSIVE ACTIVITIES HEREUNDER OR AT LAW GENERALLY;
(ii) NEITHER THE DEVELOPER, NOR THE ASSOCIATION, NOR ANY OF THE
OTHER LISTED PARTIES HAVE EMPLOYED OR CONTRACTED WITH ANY
LIFEGUARD FOR ANY BEACH AREAS ADJACENT TO AND/OR IN THE VICINITY
WPB 163511.3
March 3, 2006
55
OF THE CONDOMINIUM PROPEATER BODIES CARRIES WITH IT INHERENT
OTHERWISE ENTERING SUCH W
RISKS, AND THAT ANY PERSON ENTERING INTO SUCH WATER BODIES OR
ENGAGING IN ANY ACTIVITY ABOUT ANY BEACH ADJACENT TO ANY SUCH
WATER BODIES IS ASSUMING ALL RISK AND RESPONSIBILITY FOR ANY
INJURY OR OTHER CONSEQUENCE bF SUCH ACTION TO ANY OF THE
AFORESAID PERSONS AND ANY CHILDREN, GUESTS, OR OTHER PERSONS
UNDER THEIR CONTROL AND DIRECTION; (iii) DEVELOPER AND THE OTHER
LISTED PARTIES SHALL N,O D BELL I LOSSESUTDAMAGES ~ (CO PM ENSATORY,
HARMLESS, FROM ANY
CONSEQUENTIAL, PUNITIVE OR OTHERWISE), INJURIES OR DEATHS ARISING
FROM OR RELATING TO THE AFORESAID ACTIVITIES; (iv) ANY PURCHASE OR
USE OF ANY PORTION OF THE CONDOMINIUM PROPERTY AND ASSOCIATION
PROPERTY HAS BEEN AND WILL BE MADE WITH FULL KNOGRLEE ME OF I HEA
FOREGOING; AND (v) THIS ACKNOWLEDGEMENT AND A
MATERIAL INDUCEMENT TO DEVELOPER TO SELL, CONVEY AND/OR ALLOW
THE USE OF THE APPLICABLE PORTION OF THE CONDOMINIUM PROPERTY.
ALL PERSONS ARE HEREBY NOTIFIED THAT FROM TIME TO TIME
ALLIGATORS AND OTHER WILDLIFE MAY INHABIT OR ENTER INTO WATER
BODIES OR OTHERWISE BE PRESENT WITHIN, ADJACENT TO OR NEAR THE
PROPERTY AND MAY POSE A THREAT TO PERSONS, PETS AND PROPERTY,
BUT THAT THE LISTED PARTIES ARE UNDER NO DUTY TO PROTECT AGAINST,
AND DO NOT IN ANY MANNER WARRANT AGAINST, ANY DEATH, INJURY OR
DAMAGE CAUSED BY SUCH WILDLIFE. Neither Developer nor the Association shall be
obligated to erect fences, gates, or walls around or adjacent to any water body or otherwise on
the Condominium Property. Notwithstanding the foregoing, the Association may erect a fence
adjacent to the boundary of a water body or otherwise within the boundary of the Condominium
Property or the Association. Property.
Section 21.4 Assumption of Risk. Without limiting any other provision
herein, each person within any portion of the Condominium Property and/or Association
Property ("User") accepts and assumes all risk and responsibility for noise, liability, injury, or
damage connected with use or occupation of any portion of such Condominium Property and/or
Association Property and areas adjacent to or in the vicinity of the Condominium Property and/or
Association Property, including, without limitation, (a) the condition, water quality, level of any
ponds, or and any other water body, together with all other matters set forth in Section 21.3; (b)
noise from maintenance equipment; (c) use of pesticides, herbicides, and fertilizers; (d) view
restrictions caused by, maturation of trees and shrubbery, or construction on any adjacent
properties; (e) reduction in privacy caused by the removal or pruning of shrubbery or trees within
any portion of the Condominium Property and/or Association Property or construction on any
adjacent properties; (f) sounds and/or odor transmission; and (g) design, furnishing and
equipping of any portion of the Condominium Property and/or Association Property. Each User
also expressly indemnifies and agrees to hold harmless Developer, the Association and all
employees, directors, representatives, officers, agents, and partners of the foregoing, from any
and all damages and expenses, whether direct or consequential, arising from or related to the
User's use of the Condominium Property and/or Association Property, including without
limitation attorneys' fees, paraprofessional fees, and costs at trial and upon appeal. Without
WPB_163511.3
March 3, 2006
56
limiting the foregoing, all Users using the Condominium Property and/or Association Property,
including without limitation, any pool or spa, do so at their own risk.
BY ACCEPTANCE OF A DEED, EACH OWNER
ACKNOWLEDGES THAT THE CONDOMINIUM PROPERTY AND/OR
ASSOCIATION PROPERTY AND AREAS ADJACENT TO OR IN THE. VICINITY OF
EITHER OF THE FOREGOING MAY CONTAIN WILDLIFE. DEVELOPER AND
THE CONDOMINIUM ASSOCIATION SHALL HAVE NO RESPONSIBILITY FOR
MONITORING SUCH WILDLIFE OR NOTIFYING OWNERS OR OTHER PERSONS
OF THE PRESENCE OF SUCH WILDLIFE. EACH OWNER AND HIS OR HER
GUESTS AND INVITEES ARE RESPONSIBLE FOR THEIR OWN SAFETY.
ADDITIONALLY, EACH OWNER OR USER WHO USES THE
SPA, SWIMMING POOL, CABANAS, DECK, FOUNTAINS AND/OR ANY OTHER
AMENITIES WITHIN THE ASSOCIATION PROPERTY OR CONDOMINIUM
PROPERTY, SHALL BE DEEMED TO HAVE. ASSUMED ALL RISK OF THE
PROPER AND SAFE USE OF ALL OF SUCH AMENITIES, BASED ON THE
SURROUNDING CIRCUM5TANCES, INCLUDING THE PHYSICAL CONDITION OF
THE OWNER OR USER, PRESENCE OR ABSENCE OF OTHER PERSONS, AND ANY
OTHER CONDITIONS BEARING ON THE SAFE USE OF ANY OF THE
FOREGOING. ANY OWNER OR USER MAKING USE OF ANY OF THE
FOREGOING SHALL BE DEEMED TO HAVE RELEASED THE DEVELOPER AND
THE ASSOCIATION, FROM ANY AND ALL LIABILITY INCLUDING, WITHOUT
LIMITATION, FOR INJURY, DAMAGE OR DEATH RESULTING FROM ANY OF
THE FOREGOING.
FURTHER, GIVEN THE .CLIMATE AND HUMID CONDITIONS
IN FLORIDA, MOLDS, MILDEVy, TOXINS AND FUNGI MAY EXIST AND/OR
DEVELOP WITHIN THE UNIT, CONDOMINIUM PROPERTY AND/OR
ASSOCIATION PROPERTY. EACH OWNER IS HEREBY ADVISED THAT CERTAIN
MOLDS, MILDEW, TOXINS AND/OR FUNGI MAY BE, OR IF ALLOWED TO
REMAIN FOR A SUFFICIENT PERIOD MAY BECOME, TOXIC AND
POTENTIALLY POSE A HEALTH RISK. BY ACQUIRING TITLE TO A UNIT, EACH
OWNER SHALL BE DEEMED TO HAVE ASSUMED THE RISKS ASSOCIATED
WITH MOLDS, MILDEW, TOXINS AND/OR FUNGI AND TO HAVE RELEASED THE
DEVELOPER FROM ANY AND ALL LIABILITY RESULTING FROM SAME.
Section 21.5 Notices and Disclaimers as to Unit Square Footage. The square
footage calculation of each Unit includes all columns, partitions, chases, pipes, conduits,
building systems, interior walls, and wires included within the aforedescribed Unit boundaries,
so that no such item is subtracted from the overall square footage of any Unit in measuring such
Unit. Each Owner, by acceptance of a deed or other conveyance of a Unit, understands and
agrees that there are various methods for calculating the square footage of a Unit. Additionally,
as a result of in the field construction, other permitted changes to the Unit, and settling and
shifting of improvements, actual square footage of a Unit may also be affected. Accordingly,
during apre-closing inspection the purchaser should, among other things, review the size and
dimensions of the Unit. By accepting title to a Unit, the applicable Owner(s) shall be deemed to
57
WPB 163511.3
March 3, 2006
have conclusively agreed to accept the size and dimensions of the Unit, regardless of any
variances in the square footage from that which may have been disclosed at any time prior to
closing, whether included as part of Developer's promotional materials or otherwise. Without
limiting the generality of this Section 21.5, Developer does not make any representation or
warranty as to the actual size, dimensions (including ceiling heights) or square footage of any
Unit and each Owner shall be deemed to have fully waived and released any such warranty and
claims for losses or damages resillting from any variances between such represented or otherwise
disclosed square footage and the actual square footage of the Unit.
Section 21.6 Notice and Disclaimer as to Warranties. Except for warranties
contained in any Special Warranty Deed by which title to a Unit is conveyed by Developer to a
Unit Owner, and any warranties, only to the extent required by 718.203, Florida Statutes (2005)
and not yet expired, no other warranties, guarantees or promises of any kind or nature, whether
established by statutory, common, case law or otherwise, including, but not limited to, warranties
as to compliance with plans, the design, construction, continuation of any particular view (it
being understood and' agreed that construction on any adjacent properties. may obstruct such
view), sound and/or odor transmission, existence and/or development of molds, mildew, toxins
or fungi, furnishing and equipping of the Condominium Property and Association Property,
warranties of habitability,. fitness for a particular purpose, or merchantability or otherwise, either
express or implied, are given or made by the Developer or any affiliate, or are to be relied upon
by any Unit Owner, unless expressly stated in writing and signed by both the Unit Owner and the
President of the Developer. It is specifically understood and agreed that verbal promises and
representations are not valid and that any promises or understandings not specifically stated in
the Prospectus or this Declaration are hereby expressly disclaimed. This disclaimer of warranty
is not intended to prohibit warranties of "consumer products" as may be provided by the
Magnuson-Moss Warranty-Federal Trade Commission Act (15 U.S.C. 1230 et seq.) which may
be supplied by the manufacturers of such products within the meaning of said Act. In no event
shall the Developer be liable to any Unit Owner or the Condominium Association, or any other
person or entity for consequential damages or personal injuries arising from any breach of any
warranty applicable to the Developer.
In all events, the maximum liability, if any, of the Developer and its
officers and directors, .under any applicable warranties shall be the replacement cost of the
defective portion of the Unit, Common Elements, Association Property, fixtures, or other items
of real or personal property. The Developer shall have the sole right to determine whether the
defect shall be corrected by repair or replacement. Any warranties applicable to the Developer
and its officers and directors, shall not apply if the defective portion of the Unit, Common
Elements, Association Property, fixtures, .items of personal property or other real or personal
property have been subject to misuse or damage by accident or otherwise, or have not been
afforded routine maintenance.
Section 21.7 Access of Developer to Buildings and Unit and to Reports. For as
long as Developer remains liable to the Association or any Unit Owner, under any warranty,
whether statutory, express or implied, for any act or omission of Developer in the development,
construction, sale and marketing of the Condominium, then Developer and its agents shall have
the right, in Developer's sole discretion, and from time to time upon the granting of access
thereto by the Condominium Association or a Unit Owner, as the case may be, to enter the
58
WP6 163511.3
March 3, 2006
Condominium Property and Association Property for the purpose of inspecting, testing and
surveying same, to determine the need for repairs, improvements or replacements, so as to permit
Developer to fulfill its obligations under such warranties. Failure of the Condominium
Association or of a Unit Owner to grant such access may result in the appropriate warranty being
nullified and of no further force or effect.
For as long as the Developer remains liable to the Association or any Unit Owner
under any warranty, whether statutory, express or implied, or for any act or omission of the
Developer relative to the development, construction, sale and marketing of the Condominium,
the Association shall furnish to the Developer, all documentation prepared on behalf of the
Association concerning the inspection, testing and surveying of the Condominium Property,
Association Property, Common Elements or Units relative to analyzing such areas for
compliance with all such warranties. Failure of the Association or of a Unit Owner to provide
such access to reports and/or documentation shall result in the appropriate warranty being
nullified and being of no further force or effect.
Section 21.8 Association Liability. Notwithstanding anything contained herein
or in the Articles of Incorporation, Bylaws, .any rules or regulations of the Association or any
other document governing or binding the Association (collectively, the "Association
Documents") the Association, except to the extent specifically provided to the contrary herein,
shall not be liable or responsible for, or in any manner be a guarantor or insurer of, the health,
safety or welfare of any Owner, occupant or user of any portion of the Condominium and/or
Association Property, including, without. limitation, Owners and their guests, invitees, agents,
employees, contractors or subcontractors or for any property of any such persons. Without
limiting the generality of the foregoing:
(a) it is the express intent of the Association Documents that the various
provisions thereof which are enforceable by the Association and which govern or regulate the
uses of the prc-~pertics have been written, and are to be interpreted and enforced, for the sole
purpose of enhancing and maintaining the enjoyment of the properties and the value thereof;
(b) the Association is not empowered, and has not been created, to act as
an entity which prevents tortuous activities or which enforces or ensures the compliance with the
laws of the United. States, Sate of Florida, Palm Beach County and/or any other jurisdiction; and
(c) the provisions of the Association Documents setting. forth the uses of
Assessments which. relate to health, safety and/or welfare shall be interpreted and applied only as
limitations on the uses of Assessment funds and not as creating a duty of the Association to
protect or further the health, safety or welfare of any person(s), even if Assessment funds are
chosen to be used for any such reason.
Each Owner (by virtue of his acquisition of title to his Unit) and
each other person having an interest in or lien upon, or making use of, any portion of the
properties (by virtue of accepting such interest or lien or making such use) shall be bound by this
provision and shall be deemed to have automatically waived any and all rights, claims, demands
and cause of action against the Association arising from or connected with any matter for which
the liability of the Association has been disclaimed hereby. As used herein, "Association" shall
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59
include within its meaning all of Association's directors, officers committee and Board members,
employees, agents, contractors (including management companies), subcontractors, successors
and assigns. The provisions hereof shall also inure to the benefit of the Developer, which shall
be fully protected hereby.
Section 21.9 Covenants Running With The Land. ANYTHING TO THE
CONTRARY HEREIN NOTWITHSTANDING AND WITHOUT .LIMITING THE
GENERALITY (AND SUBJECT TO THE LIMITATIONS) OF OTHER APPLICABLE
SECTIONS HEREOF, IT IS THE INTENTION OF ALL PARTIES AFFECTED
HEREBY (AND THEIR RESPECTIVE HEIRS, PERSONAL REPRESENTATIVES,
SUCCESSORS AND ASSIGNS) THAT THESE COVENANTS AND RESTRICTIONS
SHALL RUN WITH THE LAND AND WITH TITLE TO THE CONDOMINIUM
PROPERTY AND THE ASSOCIATION PROPERTY. WITHOUT LIMITING THE
GENERALITY OF ANY OTHER SECTION HEREOF, IF ANY PROVISION OR
APPLICATION OF THIS DECLARATION WOULD PREVENT THIS DECLARATION
FROM RUNNING WITH THE LAND AS AFORESAID, SUCH PROVISION AND/OR
APPLICATION SHALL BE JUDICIALLY MODIFIED, IF AT ALL POSSIBLE, TO
COME AS CLOSE AS POSSIBLE TO THE INTENT OF SUCH PROVISION OR
APPLICATION AND THEN BE ENFORCED IN A MANNER WHICH WILL ALLOW
THESE COVENANTS AND RESTRICTIONS TO SO RUN WITH THE LAND; BUT IF
SUCH PROVISION AND/OR APPLICATION CANNOT BE SO MODIFIED, SUCH
PROVISION AND/OR APPLICATION SHALL BE UNENFORCEABLE AND
CONSIDERED NULL AND VOID IN ORDER THAT THE PARAMOUNT GOAL OF
THE PARTIES AFFECTED HEREBY (THAT THESE COVENANTS AND
RESTRICTIONS RUN WITH THE LAND AS AFORESAID) BE ACHIEVED.
Section 21.10 Interpretation. The Board of Directors of the Association shall be
responsible for interpreting the provisions hereof and of any of the Exhibits attached hereto.
Such interpretation shall be binding upon all parties unless wholly unreasonable. An opinion of
legal counsel that any interpretation adopted by the Association is not unreasonable shall
conclusively establish the validity of such interpretation.
Section 21.11 Owner Acknowledgement of Association AuthoritX. By
acquisition of title to a Unit, every Unit Owner acknowledges that the Association is a multi-
condoininium association which is responsible for the operation, maintenance and management
of this Condominium, other condominiums within The Preserve at Tequesta Townhomes, and
the Association Property, and that because other such condominiums within The Preserve at
Tequesta Townhomes will be created at times different from this Condominium, they may be
governed by declarations of condominium or other constituent documents which contain
provisions different from this Declaration, but which are, nevertheless, in compliance with the
Condominium Act. Each Unit Owner further acknowledges and agrees that the Association,
through its Board of Directors, has the authority and obligation to make decisions affecting this
Condominium and all other condominiums in The Preserve at Tequesta Townhomes, all Unit
Owners in this Condominium, as well as unit owners in all other condominiums in The Preserve
at Tequesta Townhomes, and the Association Property. Accordingly, to the extent that there
may exist differences in the various declarations of condominium or other constituent documents
of any condo>:niniums as to matters affecting unit owners in more than one condominium, and/or
60
WPB 163511.3
MarcU 3, 2006
property in more than one condominium, the Association Property or property otherwise subject
to control by the Association, it is within the authority of the Board of Directors to determine, in
its business judgment, the appropriate application of any differing or conflicting provisions of
such declarations and/or constituent documents and in such instance the decision of the Board of
Directors shall be determinative and final.
Section 21.12 Severability. The invalidity in whole or in part of any covenant or
restriction, or any Article, Section, subsection, sentence, clause, phrase or word, or other
provision of this Declaration of Condominium and the Articles of Incorporation, Bylaws and
rules and regulations of the Association shall not affect the validity of the remaining portions
thereof.
Section 21.13 Applicability of Declaration of Condominium. All present or
future Owners, tenants, or any other person who might use the facilities of the Condominium in
any manner, are subject to the provisions of this Declaration and the mere acquisition or rental of
any Unit or the mere act of occupancy of any Unit, shall signify that the provisions of this
Declaration of Condominium are accepted and ratified in all respects.
Section 21.14 Construction. The provisions of this Declaration shall be liberally
construed to effectuate its purpose of creating a uniform plan of Condominium ownership.
Section 21.15 Parties Bound. The restrictions and burdens imposed by this
Declaration of Condominium are intended to and shall constitute covenants running with the
land, and shall constitute an equitable servitude upon each Unit and its appurtenant undivided
interest in Common Elements as well as on the Association Property and this Declaration shall
be binding upon Developer, its successors and assigns, and upon all parties who may
subsequently become Owners of Units in the Condominium, and their respective heirs, legal
representatives, successors and assigns.
Section 21.16 Name. The Developer reserves the exclusive right to use the name
"The Preserve at Tequesta Townhomes Condominium" and all similar names in connection with
any future real estate developments and business enterprises.
Section 21.17 Delivery of Documents to Subsequent Owners. Owners shall be
obligated to deliver the documents originally received from the Developer, containing this and
other declarations and documents, to any grantee or lessee of such Owners.
Section 21.18 Joinder by The Preserve At Tequesta Townhomes Condominium
Association, Inc.. This Declaration is being executed by The Preserve at Tequesta Townhomes
Condominium Association, Inc. to acknowledge its joinder in this Declaration for the purpose of
agreeing to perform its obligations as contained herein.
Section 21.19 Drainage Easements. Non-exclusive easements are hereby granted
by Developer for the installation and maintenance of drainage facilities which may exist in favor
of the Master Association and SFWMD. Within these easement areas, no structure, planting or
other material, other than sod, shall be placed or permitted to remain (unless installed by the
Developer, its designees, successors or assigns and replacements of same) which may interfere
with such installation and maintenance, or which may obstruct or retard the flow of storm water.
61
WPB 163511.3
March 3, 2006
Notwithstanding the foregoing, sod and other plantings shall be permitted if the drainage
easement is one which covers a buried pipeline, and over which no surface drainage is to be
maintained. The Master Association and SFWMD shall have access to all such drainage
easements, for the purpose of operation and of maintenance thereof and shall not be held liable
for any damage to or removal of any plantings caused by such operation and maintenance
activities.
Section 21.20 South Florida Water Management District. Developer, the
Association, and its members acknowledge that SFWMD has the right to take enforcement
action, including civil action for an injunction and penalties, against any applicable parties to
compel it to correct any outstanding problems with the Surface Water Management System
facilities or in mitigation or conservation areas under the responsibility or control of such parties,
if any.
Section 21.21 Easements. Should the intended creation of any easement
provided for in this Declaration fail by reason of the fact that at the time of creation there may be
no grantee in being having the capacity to take and hold such easement, then any such grant of
easement deemed not to be so created shall, nevertheless, be considered as having been granted
directly to the Association as agent for such intended grantees for the purpose of allowing the
original party or parties to whom such easements were originally to have been granted, the
benefit of such easement, and the Unit Owners hereby designate the Developer and the
Association (or either of them) as their lawful attorney-in-fact, to execute any instrument on such
Unit Owner's behalf as may hereafter be required or deemed necessary for the purpose of later
creating such easement as it was intended to have been created herein: Formal language of grant
or reservation with respect to such easements, as appropriate, is hereby incorporated in the
easement provisions hereof to the extent not so recited in some or all of such provisions.
Section 21.22 Governing Law and Venue. The terms, covenants and conditions
of this Declaration shall be construed, governed by and enforced in accordance with the laws of
the State of Florida and venue for all purposes shall be deemed to be Palm Beach County,
Florida.
Section 21.23 Gender and Plurality. Whenever the context so requires, the use of
the masculine gender, the' use of the singular to include the plural, and the use of the plural to
include the singular.
Section 21.24 Owner Acceptance and Ratification. By acquisition of title to a
Unit or Units .subject to this Declaration, each Owner thereby irrevocably ratifies, approves and
affirms all provisions of the Declaration, together with all actions of the Board with respect to
the method of determination and collection of assessments and assessment rates for the year
during which such Owner acquired title to his Unit.
62
WPB 163511.3
March 3, 2006
IN WITNESS WI-TEREOF, Developer has caused the foregoing
Declaration of Condominium to be executed, by its undersigned, duly authorized officers on the
date set forth above.
WITNESSES:
CORNERSTONE TEQUESTA, L.L.C., a
Florida limited liability company
Signature of Witness
Print Name of Witness
Signature of Witness
Print Name of Witness
STATE OF FLORIDA )
ss:
COUNTY OF )
By: _
Name:
Title:
The foregoing instrument was acknowledged before me this day of
200_, by
President of CORNERSTONE TEQUESTA, L.L.C., a Florida limited liability company, on
behalf of the company, who is personally known to me or who has produced
as identification.
(NOTARY PUBLIC)
(Print Name of Notary Public)
(Notary Seal) My Commission Expires:
63
WPB 163511.3
March 3, 2006
Joinder by THE PRESERVE AT TEQUESTA TOWNHOMES CONDOMINIUM
ASSOCIATION, INC., pursuant to Section 21.18 hereof:
THE PRESERVE AT TEQUESTA
TOWNHOMES CONDOMINIUM
ASSOCIATION, INC., a Florida not-for-
profit corporation
WITNESSES:
Signature of Witness
By:
Print Name of Witness
Signature of Witness
Print Name of Witness
STATE OF FLORIDA )
ss:
COUNTY OF )
President
The foregoing instrument was acknowledged before me this _ day of
200_ by , as President of
THE PRESERVE AT TEQUESTA TOWNHOMES CONDOMINIUM ASSOCIATION, INC., a
Florida not-for-profit corporation, on behalf of the corporation, who is personally known to me
or who has produced as identification.
(NOTARY PUBLIC)
(Print Name of Notary Public)
Commission Number:
My Commission Expires:
64
WP6 163511.3
March 3, 2006
MORTGAGEE'S CONSENT AND JOINDER
This Consent and Joinder of Mortgagee is made this day of
200_, by BANKUNITED, FSB, a Federal savings bank, ("Mortgagee")
having a mailing address of 255 Alhambra Circle, 2"d Floor, Coral Gables, Florida 33134
("Mortgagee"):
WITNESSETH:
For good and valuable consideration in hand paid, the Mortgagee, as
owner and holder of the following described documents (the "Loan Documents"):
1. Mortgage recorded in Official Records Book 17874, Page 1498, of the Public
Records of Palm Beach County, Florida, and
2. Assignment of Leases, Rents and Profits, recorded in Official Records Book
17874, Page 1550, of the Public Records of Palm Beach County, Florida; and
3. UCC Financing Statement recorded in Official Records Book 17874, Page 1563,
of the Public Records of Palm Beach County, Florida,
as the foregoing may be amended, securing all of the real property described therein, hereby
consents to and joins in the making of the Declaration of Covenants, Restrictions and Easements
for The Preserve at Tequesta.
Provided always, nevertheless, that nothing herein contained shall in
anyway impair, alter or diminish the effect, lien or encumbrance of the Loan Documents on the
remaining part of said mortgaged premises, or any of the rights and remedies of the Mortgagee
or any subsequent holder thereof, nor shall anything herein contained by construed as an
assumption by Mortgagee of any obligations of the grantor of the foregoing Declaration.
IN WITNESS WHEREOF, the Mortgagee has hereunto caused these
presents to be executed on the day and year first above written.
BANKUNITED, FSB
a Federal savings bank
Sign Name
By:
Print Name
Sign Name
Print Name
WP6 163511.3
March 3, 2006
Name:
Title:
64
STATE OF FLORIDA )
ss:
COUNTY OF )
The foregoing instrument was acknowledged before me this
200_, by ,the
FSB, a Federal savings bank, who is personally known to
as identification.
{notary seal}
WP6 163511.3
March 3, 2006
day of
of BANKUNITED,
me or who has produced
Notary Public, State of Florida
Commission Number:
My Commission Expires:
65
PREPARED BY:
Christopher H. Saia, Esq.
The Law Offices of Christopher H. Saia, P.A.
140 NE 2°d Avenue
Miami, FL 33132
WHEN RECORDED MAIL TO:
Marc R. Bulson, Esq.
Rogers & Hardin LLP
2700 International Tower
229 Peachtree Street, N.E.
Atlanta, GA 30303-1604
RETENTION AND DRAINAGE EASEMENT
This RETENTION AND DRAINAGE EASEMENT (this "Agreement") is made
as of this , 2006 by Cornerstone Tequesta, L.L.C., a Florida limited liability
company ("Cornerstone"), whose post office address is 2121 Ponce de Leon Boulevard,
Penthouse No. 2, Coral Gables, FL 33134, and AHC Purchaser, Inc., a Delaware
corporation ("AHC Purchaser"), whose post office address is c/o Alterra Healthcare
Corporation, 6737 W. Washington Street, Suite 2300, Milwaukee, WI 53214.
RECITALS
A. AHC Purchaser owns certain real property .located in Palm Beach County, Florida,
as more particularly described in Exhibit "A" attached hereto and made a part of this
Agreement by this reference (hereinafter referred to as the "AHC Purchaser Property").
B. Cornerstone owns certain real property lying adjacent to the AHC Purchaser
Property, which real property is also situated in Palm Beach County, Florida, as more
particularly described in Exhibit "B" attached to and made a part of this Agreement by
this reference (hereinafter referred to as the "Cornerstone Property").
C. Cornerstone and AHC Purchaser are successors in interest to a Reciprocal
Retention and Drainage Easement ("Original Retention Agreement") made as of
December 23, 1998 by and between Meditrust Company, LLC, a Delaware limited
liability company and ALS-Clare Bridge, Inc., a Delaware corporation.
D. Cornerstone has begun development of the Cornerstone Property and as a part of
such development plan, Cornerstone and AHC Purchaser have agreed to enter into this
Agreement whereby Cornerstone has agreed to grant a retention and drainage easement
over a portion of the Cornerstone Property for the benefit of the AHC Purchaser Property,
as more particularly set forth herein and to terminate the Original Retention Agreement.
NOW, THEREFORE, for and in consideration of the premises hereof, the mutual
agreements herein set forth and other good and valuable considerations, the receipts and
sufficiency of which are hereby acknowledged, the parties hereby agree as follows:
1. Grant of Retention and Drainage Easement. Both the AHC Purchaser Property
and the Cornerstone Property are described in and affected by Environmental Resources
Standard General Permit No. 50-03968-P, dated February 23, 1998, as amended and
restated by Permit No. 50-03968-P(O1), dated September 22, 1998, as further amended
and restated by Permit No. 50-03968-P(02), dated September 6, 2005, all issued by the
South Florida Water Management District (as amended and restated, the "Environmental
Resources Permit"). The Environmental Resources Permit requires the installation of a
system of ex-filtration trenches, drainage improvements and storage system on the
Cornerstone Property for the collection and drainage of storm water from the AHC
Purchaser Property (the "Drainage System"). The Drainage System is located within the
AHC Purchaser Easement Area, as defined herein.
Cornerstone does hereby grant and convey unto AHC Purchaser a perpetual,
nonexclusive easement under and through that portion of the Cornerstone Property more
particularly described in Exhibit "C" and depicted on Exhibit "C-1 ", each attached to and
made a part of this Agreement by this reference (the "AHC Purchaser Easement Area"),
for the purpose of allowing (i) surface water to drain from the AHC Purchaser Property
over, across, under and through the AHC Purchaser Easement Area, and (ii) the
maintenance, operation and repair of the Drainage System as necessary to keep the AHC
Purchaser Property in material compliance with the Environmental Resources Permit.
The easement rights herein created include the right of reasonable ingress and
egress by AHC Purchaser over and upon the Cornerstone Property as reasonably
necessary to permit access to the AHC Purchaser Easement Area for the maintenance and
repair of the Drainage System.
2. Rights and Obli atg ions. Except as specified in this Agreement, AHC Purchaser
shall have no rights or obligations in and to the AHC Purchaser Easement Area.
Cornerstone hereby reserves the right to use the AHC Purchaser Easement Area for any
use not inconsistent with the use of such area by AHC Purchaser pursuant to the
easements granted herein.
The Drainage System shall be maintained and repaired by AHC Purchaser at its
sole cost and expense. Notwithstanding the foregoing, in the event that Cornerstone, its
agents, employees or invitees causes any damage to any portion of the Drainage System,
Cornerstone shall immediately repair such damage at its sole cost and expense. Such
repair shall in no way reduce the capacity of the Drainage System and shall otherwise
satisfy all requirements of the Environmental Resources Permit relating to the
construction and operation of the Drainage System.
AHC Purchaser agrees to make good faith reasonable efforts to minimize any
interference by AHC Purchaser with the use of the Cornerstone Property in connection
2
with the exercise of AHC Purchaser's rights and obligations hereunder. In the event
AHC Purchaser causes any damage to any portion of the Cornerstone Property in
connection with the exercise of its obligations or any rights granted hereunder, AHC
Purchaser shall at all times be responsible for and shall pay the cost of repairing such
damage.
Any installation, construction, maintenance, cleaning, repair or replacement of the
Drainage System by Cornerstone or AHC Purchaser, as applicable, shall be in accordance
with the terms and conditions of the Environmental Resources Permit and otherwise in
accordance with the provisions of all applicable statutes, ordinances and governmental
rules and regulations, and no such installation, construction, repair, replacement
maintenance or cleaning shall prejudice or inhibit the right of AHC Purchaser to utilize
the easement areas for retention and for drainage.
3. Covenants of AHC Purchaser and Cornerstone. Cornerstone hereby warrants and
covenants that Cornerstone is the fee simple owner of the Cornerstone Property of which
the AHC Purchaser Easement Area is a part and that Cornerstone has full right and lawful
authority to grant and convey the easements described herein to AHC Purchaser, and that
AHC Purchaser shall have quiet and peaceful possession, use and enjoyment of the
easements, and that there are no easements, grants, mortgages, restrictions, liens, claims
or the other encumbrances against or affecting Cornerstone Property which would
prevent, hinder, delay, encumber or otherwise adversely affect the exercise of rights
under this Agreement. AHC Purchaser hereby warrants and covenants that AHC
Purchaser is the fee simple owner of the AHC Purchaser Property and that AHC
Purchaser has full right and lawful authority enter into this Agreement. After the date
that the construction of the work described in Environmental Resources Permit has been
approved by the South Florida Water Management District, AHC Purchaser and
Cornerstone agree to collectively request, at Cornerstone' sole cost and expense, a letter
modification to the Environmental Resources Permit so as to cause: (i) AHC Purchaser to
be solely responsible for the Drainage System and the portion of the permitted
improvements ("Permitted Improvements") under the Environmental Resources Permit
that are located on the AHC Purchaser Property; and (ii) Cornerstone to be solely
responsible for the portion of the Permitted Improvements located on the Cornerstone
Property other than the Permitted Improvements.
4. Construction of the Drainage S sue. Cornerstone, through one or more
subcontractors (the "Subcontractors"), has caused or shall cause the Drainage System to
be constructed in accordance with the Environmental Resources Permit and otherwise in
accordance with the provisions of all applicable statutes, ordinances, and governmental
rules and regulations. In connection therewith, Cornerstone hereby assigns all warranties
it may have received, if any, from the Subcontractors. This instrument shall be deemed to
be an assignment of such warranties, without recourse to Cornerstone, to the extent they
exist and to the extent they may be legally assigned to AHC Purchaser.
5. Termination of the Original Retention Agreement. The parties hereby terminate
the Original Retention Easement effective upon the recordation of this Agreement in the
3
land records of Palm Beach County, Florida. As a result of the termination of the
Original Retention Easement, the Original Retention Easement shall be of no further
force and effect and the lands affected by the Original Retention Easement are hereby
released from the encumbrance and effect of the Original Retention Easement. Further,
Cornerstone and AHC Purchaser each hereby releases and discharges the other, and its
successors and assigns, from any and all obligations, liabilities, claims, causes of action,
damages, costs, expenses or demands of any kind whatsoever, in law or in equity, which
each has or may have against the other by reason of or in relation to the Original
Retention Easement.
6. Consent and Subordination. BankUnited, FSB, a Federal savings bank, the record
mortgagee encumbering the Cornerstone Property, joins in this Agreement solely for the
purpose of consenting and subordinating the effect of its mortgage to the effect of this
Agreement.
Merrill Lynch Capital, a Division of Merrill Lynch Business Financial Services
Inc., the record mortgagee encumbering the AHC Purchaser Property, joins in this
Agreement solely for the purpose of consenting to the effect of this Agreement.
7. Miscellaneous.
(a) Attorneys' Fees. In the event of any litigation between the parties hereto (or their
successors in interest as described herein) with respect to enforcement of rights under this
instrument, the prevailing party in such action shall be entitled to recover all reasonable
costs and expenses paid or incurred in connection therewith, including the reasonable
attorneys' fees at or before the trial level, and in any appellate proceedings.
(b) Construction. Whenever the context of this instrument requires or admits, words
used in the neuter gender include the masculine and feminine; the singular includes the
plural and the plural the singular; the word "person" includes a corporation, partnership
or unincorporated association as well as a natural person. The fact that a party may have
been deemed to have drafted or structured any provision hereof shall not be considered in
construing the particular provisions either in favor or against such party.
(c) Captions. The captions of the beginning of several paragraphs of this instrument
are not a part of this Agreement but merely labels to assist in located and reading the
respective paragraphs hereof. They should be ignored in construing this instrument.
(d) Severability. If any provision of this Agreement is declared invalid or
unenforceable, thin, if reasonably possible, taking into consideration the intent and
purpose of the parties in entering into this Agreement, the remainder of this Agreement
shall continue in full force and effect.
(e) Entire Agreement; Amendment. This Agreement contains the entire
understanding between the parties concerning the subject matter hereof and supersedes
any prior understandings or agreements between them concerning the subject matter
4
hereof. No changes, alterations, modifications, additions, or qualifications to the terms of
this Agreement shall be binding upon the parties unless made in writing and signed by the
party to be bound thereby. This Agreement may be amended, modified or terminated
only by written instrument executed by the holders of fee title of all portions of the
Cornerstone Property and the AHC Purchaser Property.
(f) Governing Law Venue. .All questions concerning the meaning, execution,
construction, effect and validity of this Agreement shall be governed by and resolved in
accordance with the internal laws of the State of Florida without regard to conflicts of law
principles.
(g) Indemnity. In addition to any other rights or remedies granted to the parties
hereto under this Agreement, each party hereby indemnifies and agrees to hold the other
party harmless from and against any loss, cost, damage or expense, including claims for
death or injury to person or damage to property, and including without limitation
attorneys' fees and court costs, which may arise out of or in connection with or by reason
of the negligence or intentional misconduct of such party, its agents, representatives,
contractors, employees, tenants or invitees in connection with any work by such party, its
agents, representatives, contractors, employees, tenants or invitees, as contemplated under
this Agreement or arising out of the use of the easements granted herein by such party, its
agents, representatives, contractors or employees.
(h) Cornerstone Relocation Right. Cornerstone shall have the right to relocate the
Drainage System and the AHC Purchaser Easement Area to other portions of the
Cornerstone Property in the event that such relocation, in Cornerstone's reasonable
discretion, becomes necessary, provided that such relocation: (A) is performed at
Cornerstone's sole cost and expense; (B) does not adversely affect AHC Purchaser's
rights granted hereby; and (C) such relocation has been approved by the District, or such
other governmental authority having jurisdiction. Upon such relocation, the parties hereto
shall execute and deliver an amendment to this Agreement (duly witnessed and notarized
for recording in Palm Beach County, Florida) which shall specifically identify the
relocated boundaries of the easement area by metes and bounds legal description drawn
by a licensed Florida surveyor. Cornerstone shall pay for all costs associated with such
relocation including, but not limited to, surveyor fees, recording costs, AHC Purchaser's
fees and expenses (including attorney's fees, and fees and costs incurred in obtaining its
lender or lenders' consent).
(i) Successors and Assigns Bound. The easements and related rights and obligations
granted herein shall inure to the benefit of and burden the owners of the Cornerstone
Property and the AHC Purchaser Property, or any part thereof, and their successors and
assigns. Said easement rights and obligations shall run with and burden title to the AHC
Purchaser Easement Area, and the provisions hereof shall be binding upon AHC
Purchaser, Cornerstone and their successors and assigns in interest and/or title.
(j) Notices. Any notice required or permitted to be given by either party hereto to the
other under the terms of this Agreement, or documents related hereto, shall be in writing
5
and shall be sent by hand delivery, facsimile transmission, or overnight courier, addressed
to such party at the address or addresses specified on the signature page hereof, or at such
other address in the United States of America as such party shall have specified to the
other party hereto in writing, at least ten (10) days prior to the effective date of said
change of address. All periods of notice shall be measured from the date of delivery
thereof if manually delivered, from the date of sending thereof if sent by facsimile
transmission or from the first day that is not a Saturday or Sunday or a federal holiday
after the date of sending if sent by overnight courier. To be valid any notice given to
AHC Purchaser, Inc. must also be given to AHC Purchaser, Inc.'s lender, Merrill Lynch
Capital, c/o Gary Ruben, Goldberg Kohn, 55 East Monroe, Suite 3700, Chicago, IL
60603, Telephone 312-201-3907, Telecopy 312-863-7407
(k) Time is of the Essence. Time is of the essence in this Agreement, except to the
extent performance under this Agreement is to be made on a Saturday, Sunday or public
holiday under the laws of the State of Florida, in which case, such performance may be
made on the next succeeding day which is not a Saturday, Sunday or public holiday under
the laws of the State of Florida.
(1) No Liens. In exercising their rights under this Agreement, the parties agree to
keep each other's property free and clear of any and all liens, including any arising from
any construction, maintenance, repairs or replacements required or permitted in this
Agreement.
[Signatures commence on the following page]
6
IN WITNESS WHEREOF, the Cornerstone and AHC Purchaser have caused this
Agreement to be executed as of the day and year first above written.
WITNESS:
Print Name:
Print Name:
STATE OF FLORIDA )
COUNTY OF MIAMI DADE )
CORNERSTONE:
Cornerstone Tequesta, L.L.C., a
Florida limited liability company
By:
Leon J. Wolfe, President
The foregoing instrument was acknowledged before me this day of
2006, by Leon J. Wolfe, as President of CORNERSTONE TEQUESTA,
L.L.C., a Florida limited liability company, on behalf of the limited liability company.
He is [~ personally known to me or [~ produced a driver's license as identification.
Notary Public -State of Florida
My Commission Expires:
[NOTARY SEAL]
590881
[Signatures continue on the following page]
WITNESS:
Print Name:
Print Name:
AHC PURCHASER:
AHC Purchaser, Inc., a Delaware
corporation
By:_
Name:
Title:
STATE OF
COUNTY OF
The foregoing instrument was acknowledged before me this day of
2006, by as
of AHC PURCHASER, INC., a Delaware corporation, on
behalf of the corporation. He/she is [~ personally known to me or ~] produced a
driver's license as identification.
Notary Public -State of _
My Commission Expires:
[NOTARY SEAL]
[Signatures continue on the following page]
LENDER CONSENT
BankUnited, FSB, a Federal savings bank, the mortgagee of record relating to the
Cornerstone Property, joins in this Agreement solely to consent to the effect of this
Agreement and subordinate its interest in that certain mortgage recorded at Official
Records Book 17874, Page 1498 of the Public Records of Palm Beach County, Florida to
the effect of this Agreement.
WITNESS:
Print Name:
Print Name:
STATE OF FLORIDA )
COUNTY OF
BankUnited, FSB, a Federal savings
bank
By:_
Name:
Title:
The foregoing instrument was acknowledged before me this day of
2006, by as
of BankUnited, FSB, a Federal savings bank, on behalf of the
bank. He/she is [_] personally known to me or ~] produced a driver's license as
identification.
Notary Public -State of _
My Commission Expires:
[NOTARY SEAL]
[Signatures continue on the following page]
LENDER CONSENT
Merrill Lynch Capital, a Division of Merrill Lynch Business Financial Services Inc. joins
in this Agreement solely to consent to the effect of this Agreement.
WITNESS:
Merrill Lynch Capital, a Division of
Merrill Lynch Business Financial
Services Inc., a Delaware corporation
Print Name:
Print Name:
STATE OF )
COUNTY OF
By:
Name:
Title:
The foregoing instrument was acknowledged before me this day of
2006, by as
of Merrill Lynch Capital, a Division of Merrill Lynch Business
Financial Services Inc., a Delaware corporation, on behalf of the corporation. He/she is
[~ personally known to me or [_] produced a driver's license as identification.
Notary Public -State of _
My Commission Expires:
[NOTARY SEAL]
EXHIBIT "A"
LEGAL DESCRIPTION OF THE AHC PURCHASER PROPERTY
PHASE I OF CITY OF TEQUESTA:
A parcel of land lying in the Northwest quarter of Section 30, Township 40 South, Range
43 East, Palm Beach County, Florida, being more particularly described as follows:
Commence at the Southeast comer of the Northwest quarter of the Northwest quarter of
said Section 30; thence bear North 89°57'08" West along the South line of said Northwest
quarter of the Northwest quarter, a distance of26.19 feet; thence South 17° 17'07" East,
along a line parallel with the Westerly right-of--way line of U.S. Highway No.l as shown
on the Florida Department of Transportation Right-of--Way Map Section 93040-2503,
being the bearing base for this description, a distance of 153.99 feet to the Point of
Beginning; thence continue South 17° 17'07" East a distance of 192.16 feet to the
intersection with the Westerly extension of the North line of a parcel of land described in
Deed Book 1097, Page 379, Palm Beach County, Florida, Public Records; thence South
89°43'22" East, along said extension, a distance of 37.87 feet; thence South 17°17'07 East
a distance of 251.98 feet to the intersection with the North right-of--way line of Village
Boulevard, being a curve concave to the Southeast, having a radius of 725.00 feet and
whose center bears South 03°52'08" East; thence Southwesterly, along said curve,
through a central angle of 21 ° 15'21 ", a distance of 268.96 feet; thence North 17° 17'07"
West a distance of 442.56 feet; thence North 72°42'53" East a distance of 231.00 feet to
the Point of Beginning.
PHASE II OF CITY OF TEQUESTA:
A parcel of land lying in the Northwest quarter of Section 30, Township 40 South, Range
43 East, Palm Beach County, Florida, being more particularly described as follows:
Commence at the Southeast corner of the Northwest quarter of the Northwest quarter of
said Section 30; thence bear North 89°57'08" West along the South line of said Northwest
quarter of the Northwest quarter, a distance of 26.19 feet to the Point of Beginning;
thence South 17° 17'07" East, along a line parallel with the Westerly right-of--way line of
U.S. Highway No.l as shown on the Florida Department of Transportation Right-of- Way
Map Section 93040-2503, being the bearing base for this description, a distance of 153.99
feet; thence run South 72°42'53" West a distance of 231.00 feet; thence run South
17°17'07" East a distance of 72.56 feet; thence run South 72°42' S3" West a distance of
120.00 feet; thence run North 17°17'07" West a distance of 336.10 feet to a point on the
South line of said Northwest quarter of the Northwest quarter; thence run South
89°57'08" East, along the said South line of said Northwest quarter of the Northwest
quarter, a distance of 367.70 feet to the Point of Beginning.
A-1
The above having been platted and is now known as STERLING HOUSE OF
TEQUESTA according to the plat thereof as recorded in Plat Book 82, Page 102, Public
Records of Palm Beach County, Florida.
BEING THE SAME LAND THAT IS DESCRIBED BY THE FOLLOWING LEGAL
DESCRIPTION:
Parcel 1 of ALS PLAT OF VILLAGE OF TEQUESTA, according to the Plat thereof, as
recorded in Plat Book 89, Pages 108 through 111, inclusive, of the public records of Palm
Beach County, Florida.
A-2
EXHIBIT "B"
LEGAL DESCRIPTION OF THE CORNERSTONE PROPERTY
Parcel 2 of ALS PLAT OF VILLAGE OF TEQUESTA, according to the Plat thereof, as
recorded in Plat Book 89, Pages 108 through 111, inclusive, of the public records of Palm
Beach County, Florida.
B-1
EXHIBIT "C"
LEGAL DESCRIPTION OF THE AHC PURCHASER EASEMENT AREA
C-1
EXHIBIT "C-1"
DEPICTION OF THE AHC PURCHASER EASEMENT AREA
C-2
This Document Prepared By
Marilyn A. Moore, Esq.
Edwards Angell Palmer & Dodge LLP
One North Clematis Street, Suite 400
West Palm Beach, Florida 33401
And when recorded, return to:
DECLARATION OF COVENANTS. RESTRICTIONS AND EASEMENTS
FOR THE PRESERVE AT TEOUESTA
This Declaration of Covenants, Restrictions and Easements is made this day of
200_, by CORNERSTONE TEQUESTA, L.L.C., a Florida limited liability
company (hereinafter referred to as the "Declarant").
RECITALS
WHEREAS, Declarant is the owner of certain real property located in the Town of
Tequesta, Palm Beach County, Florida, consisting of "Parcel 1" and "Parcel 2" (hereinafter
collectively referred to as the "Property"), and which is more particularly described on
Exhibit "A" hereto; and
WHEREAS, Declarant wishes to initially subject the Property to the terms and conditions
of this Declaration; and
WHEREAS, Declarant deems it desirable for the efficient preservation of the values and
amenities of the Property to create a corporation not-for-profit under the laws of the State of
Florida (hereinafter referred to as the "Maintenance Association" or "Master Association") to
which there shall be assigned the powers of maintaining, administering and/or owning certain
portions of the Property not otherwise maintained, administered and/or owned by a Sub-
Association (as hereinafter defined), pursuant hereto and for the further purpose of administering
and enforcing the covenants and restrictions and collecting and disbursing the assessments and
charges hereinafter created by this Declaration; and
WHEREAS, Declarant has caused the Maintenance Association to be formed for the
purpose of exercising the aforesaid purposes and functions; and
WHEREAS, it is intended that Parcel 1 be developed as multiple residential
condominiums consisting of townhouse condominium units all governed by one condominium
association (the "Multicondominiutn Association") to be known as "The Preserve at Tequesta
Townhomes Condominium Association, Inc.", and which development may, in the sole
discretion of Declarant, also include certain non-condominium residences governed by a
PMB_PMB_305685_3
homeowners' association (the "HOA") all pursuant to a general plan and subject to certain
protective covenants, conditions, restrictions, reservations, easements, equitable servitudes, liens
and charges, all running with said Property, as hereinafter set forth; and
WHEREAS, Declarant has entered into an agreement to convey Parcel 2 to Roosevelt's,
Inc., a Pennsylvania corporation (the "Parcel 2 Developer") with the intent that it be developed
as a single condominium also pursuant to a general plan and subject to certain protective
covenants, conditions, restrictions, reservations, easements, equitable servitudes, liens and
charges, all running with said Parcel 2, as hereinafter set forth; and
WHEREAS, it is also intended that there will be two members of the Association, one
representing Parcel 1 (the "Parcel 1 Member") and one representing Parcel2 (the "Parcel2
Member"), as more particularly described in Section 22 of Article I. Initially, Declarant shall be
the Parcel 1 Member. In the event of and upon recording the deed of conveyance for Parcel 2,
the Parcel 2 Developer shall become the Parcel 2 Member and shall have all of such rights and
obligations as are set forth in this Declaration; and
WHEREAS, Declarant wishes to initially subject the Property to the terms and conditions
of this Declaration. For so long as Declarant is an owner of any portion of Parcel 1 or Parcel 2,
and Parcel 2 Developer is an owner of any portion of Parcel 2, Declarant and Parcel 2 Developer
may execute, acknowledge and record amendments or Supplemental Declarations as hereinafter
defined. Such Supplemental Declaration(s) or amendments may bring additional lands under the
provisions of this Declaration as hereinafter provided, and may impose further and additional
restrictions, conditions and covenants for the operation, protection and maintenance of the
Property, or such portions thereof or other lands, all as hereinafter set forth. Provided, however,
for so long as both Declarant and Parcel 2 Developer own any portion of the Property, the
consent of both to any such Supplemental Declaration or amendment shall be necessary.
NOW THEREFORE, Declarant hereby declares that all of the real property described in
Exhibit "A" attached hereto shall be held, sold, conveyed, encumbered, hypothecated, leased,
used, occupied, improved and otherwise dealt with subject to the easements, covenants,
conditions, restrictions, reservations, liens, charges, and equitable servitudes as hereinafter set
forth, all of which are for the purpose of uniformly enhancing and protecting the value,
desirability and attractiveness, and are in furtherance of a general plan for the protection,
maintenance and improvement of the Property. The covenants, conditions, restrictions,
reservations, easements, equitable servitudes, liens and charges set forth herein shall run with the
title to the real property described in Exhibit "A" attached hereto and shall be binding upon all
persons having or acquiring any right, title or interest therein or any part thereof, their heirs,
personal representatives, successors and assigns and shall inure to, the benefit of each and every
person or entity from time to time owning or holding an interest in said real property or any
portion thereof and shall further inure to the benefit of and be binding upon the Declarant, its
heirs, personal representatives, successors and assigns and each other Owner (as hereinafter
defined), his respective heirs, personal representatives, successors and assigns and his tenants,
invitees, licensees, and guests and may be enforced by an Owner, and his heirs, personal
representatives, successors and assigns, by the Maintenance Association, and by the Declarant so
long as it is an Owner of any portion of the Property, including, but not limited to any Units
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contained within the Property. This Declaration and any amendment hereto shall not be deemed
to be for the benefit of any holder of a mortgage or security deed or its successors and assigns,
unless and until such holder has acquired title to a Unit pursuant to foreclosure or judicial
proceeding or deed-in-lieu of foreclosure.
It is intended that this Declaration shall be recorded in the Public Records of Palm Beach
County, Florida prior to the conveyance of the Parcel 2 property to Parcel 2 Developer.
Accordingly, unless expressly stated otherwise in this Declaration, all grants hereunder by
Declarant to Parcel 2 Developer, of any and all rights, interests, duties or obligations, including
with out limitation all easements granted hereunder, shall be affective only upon the recording in
the Public Records of the deed of conveyance from Declarant to Parcel 2 Developer. Unless
otherwise expressly stated in this Declaration or any amendment or Supplement hereto, for so
long as Declarant and Parcel2 Developer own any portion of the Property, the rights of
Declarant set forth in this Declaration shall be jointly exercised by Declarant and Parcel2
Developer. At such time as either Declarant or Parcel 2 Developer no longer owns any portion
of the Property, the remaining party of either Declarant or Parcel 2 Developer shall be entitled to
exercise all of the rights of Declarant alone.
Notwithstanding the foregoing, no provision of this Declaration shall in any manner be
construed as to prevent or limit Declarant's or Parcel 2 Developer's rights to complete the sale or
lease of any portion of the Property and the construction of improvements thereon, nor
Declarant's or Parcel 2 Developer's right to maintain models, construction, sales, Maintenance
Association or leasing offices, or similar or other facilities on any portion of the Property, nor the
Declarant's or Parcel2 Developer's right to post signs incidental to the sales, leasing or
otherwise marketing of any portion of the Property.
ARTICLE I
DEFINITIONS
The following words and terms when used in this Declaration or any Supplemental
Declaration or amendment hereto, or any Sub-Declaration (as hereinafter defined) recorded
affecting any portion of the Property (unless the context shall clearly indicate otherwise) shall
have the following meanings:
Section 1. "Aggregate Assessment" or "Annual Assessment" shall mean the total
annual assessment for the Maintenance Association pursuant to the Annual Budget, as defined in
Section 2, below.
Section 2. "Annual Budget" shall mean the estimated total expenditures for services
to be provided by the Maintenance Association and other expenses of the Maintenance
Association, as more particularly described in Article V of this Declaration.
Section 3. "Architectural and Development Review Board" or "ARB" shall mean
the Architectural and Development Review Board of the Maintenance Association as more
particularly described in Article IX of this Declaration.
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Section 4. "Articles" shall mean the Articles of Incorporation of the Maintenance
Association as they may exist from time to time.
Section 5. "Assessment(s)" shall mean those charges levied by the Maintenance
Association against Owners and Units for the purposes set forth in this Declaration and identified
elsewhere herein as specific types of Assessments, such as "Aggregate", "Annual", "Special",
etc..
Section 6. "Assessment Unit" shall mean the amount of the Annual Assessment
levied against each Unit for a given year, as determined from time to time by the Board of
Directors of the Maintenance Association, as defined in Section 7, below.
Section 7. "Board of Directors" or "Board" shall mean the Board of Directors of the
Maintenance Association as said Board may exist from time to time.
Section 8. "Bylaws" shall mean the Bylaws of the Maintenance Association as they
may exist from time to time.
Section 9. "Community" or "Property" shall mean that certain real property located
in the Town of Tequesta, Palm Beach County, owned, by Declarant, more particularly described
in Exhibit "A" hereto, which is the subject of this Declaration and which is and shall be held,
transferred, sold, conveyed, leased and occupied subject to this Declaration, and any additions
thereto in accordance with this Declaration, as it may be supplemented or amended from time to
time. Real property may be withdrawn from the Property in accordance with Article II of this
Declaration.
Section 10. "Community Facilities" or "Maintenance Areas" shall mean all real
property located within the Property or easements thereon, together with any improvements
thereon, and any personal property situated thereat, which are deeded to, dedicated to, or
otherwise to be maintained by the Maintenance Association. Such Maintenance Areas shall be
designed and intended for the common, nonexclusive use of certain (or all) of the Owners and
their tenants, guests, licensees and invitees. Maintenance Areas shall include those areas
designated as such on Exhibit "C" hereto or in any Supplemental Declaration hereto or by or on
that certain Plat of the Preserve of Tequesta to be recorded in the Public Records of Palm Beach
County (the "Plat"), any other plat where dedication thereon is made by Declarant and/or
Parcel 2 Developer, together with, if applicable and to the extent provided herein, the Surface
Water Management System (as hereinafter defined). Further provided however, certain portions
of the Property shall not be deemed to be Maintenance Areas to the extent the same are
specifically the maintenance obligation of aSub-Association (as hereinafter defined) pursuant to
aSub-Declaration (as hereinafter defined).
Although Declarant and/or Parcel2 Developer, as applicable, will endeavor to
specifically identify (by recorded legal description, signage, physical boundaries, site plans or
other means) the Maintenance Areas, such identification shall not be required for a portion of the
Property to be deemed a Maintenance Area hereunder. Without limiting the generality of any
other provisions of this Article, in the event that Declarant and/or Parcel 2 Developer determines
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that a particular portion of the Property is or is not a Maintenance Area hereunder, such
determination shall be binding and conclusive.
It is specifically contemplated that other than those Maintenance Areas designated on the
Plat (and those described on Exhibit "C" hereto) the Maintenance Areas may change from time
to time in connection with changes in Declarant's and/or Parcel 2 Developer's development
plans and other factors not now known (including, without limitation, by increase, decrease or
transfer to aSub-Association). Accordingly, reference in this Declaration to the Maintenance
Areas shall be deemed to refer to same as they may exist from time to time.
Section 11. "Community Systems" shall mean any and all cable television,
telecommunication, alarm monitoring lines, street lighting, conduits, wires, amplifiers, towers,
antennae, equipment, materials, installations and fixtures (including those based on, containing
or serving future technological advances not now known) installed by Declarant and/or Parcel 2
Developer as elsewhere provided herein, or pursuant to any grant of easement or authority by
Declarant and/or Parcel 2 Developer as elsewhere provided herein, within the Property and
serving more than one Unit. Declarant and Parcel 2 Developer shall be permitted, but shall not
be obligated to install and/or cause the installation of Community Systems.
Section 12. "County" shall mean Palm Beach County, Florida.
Section 13. "Declarant" shall mean CORNERSTONE TEQUESTA, L.L.C., a Florida
limited liability company. Declarant may assign all or a portion of its rights hereunder, or all or
a portion of such rights in connection with appropriate portions of the Community. In the event
of such a partial assignment, the assignee shall not be deemed to be the Declarant, but may
exercise such rights of Declarant specifically assigned to it. Any such assignment shall be
presumed to be on anon-exclusive basis, unless otherwise expressly stated.
Section 14. "Declaration" shall mean this instrument and all exhibits hereto as the
same may be amended or supplemented from time to time.
Section 15. "District" shall mean the South Florida Water Management District or its
successors.
Section 16. "General Expenses" shall mean the expenditures for maintenance,
operation and the rendering of services required or authorized to be performed by the
Maintenance Association or its agents, designees, or assigns, including without limitation fees, if
any, for the operation, maintenance and, if necessary, replacement of the Surface Water
Management System.
Section 17. "Improvements" shall mean all structures of any kind, including, without
limitation any building, fence, wall, sign, paving, grading, any addition, alteration, screen
enclosure, sewer, drain, disposal system, decorative building, landscaping or landscaping device
or object or other changes to the natural state of the property and vegetation existing thereon.
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Section 18. "Individual Assessments" shall mean assessments levied against particular
Units and/or Owners to the exclusion of others and other charges against specific Units or
Owners as contemplated in this Declaration.
Section 19. "Institutional Mort~a~e" shall mean any mortgage of public record given
or assumed by Declarant or Parcel 2 Developer, whether a first mortgage or otherwise or any
first mortgage of public record on any Unit, or other portion of the Property, owned or held by an
Institutional Mortgagee as said term is defined in Section 19 of this Article.
Section 20. "Institutional Mortgagee" shall mean any bank, bank holding company,
trust company or subsidiary thereof, savings and loan association, insurance company, union
pension fund, mortgage company approved in writing by Declarant or Parcel 2 Developer, an
agency of the United States government, Declarant or Parcel 2 Developer, which holds a first
mortgage of public record on any Unit, or part thereof, or other portion of the Property and the
holder of any mortgage of public record given or assumed by Declarant or Parcel 2 Developer,
whether a first mortgage or otherwise, and their respective successors and assigns.
Section 21. "Maintenance Association" or Master Association" shall mean THE
PRESERVE AT TEQUESTA MAINTENANCE ASSOCIATION, INC., anot-for-profit Florida
corporation, its successors and assigns, being the entity responsible for the administration, and
enforcement of performance of certain duties as hereinafter set forth in this Declaration and in
the Articles and Bylaws.
Section 22. "Member" shall mean Declarant until the last to occur of the date of
turnover of control of the Multicondominium Association or HOA to the respective members
thereof and Parcel 2 Developer for the period from the date of the conveyance of Parcel 2 to
Parcel 2 Developer by Declarant until the date of turnover of control of the Condominium
Association to the members thereof. Declarant will automatically be replaced as the Parcel 1
Member by the Multicondominium Association if there are no non-condominium residences on
Parcel 1 or by an entity jointly designated by the Multicondominium Association and the HOA if
there are such non-condominium residences. Upon the date that Parcel 2 Developer is no longer
the Parcel 2 Member, the Parcel 2 Developer will automatically be replaced as Parcel 2 Member
by the Parcel 2 Condominium Association. Provided, however, in each instance, the Declarant
and Parcel 2 Developer will notify the Master Association of the date of change of Membership.
Section 23. "Owner" shall mean the record owner, whether one or more persons or
entities, of the fee simple title to any Plat Parcel, Tract or Unit (as hereinafter defined) situated
within the Property. If a condominium building is located on a Plat Parcel or Tract, each owner
of a residential unit within the condominium building shall be considered an Owner. Unless the
context requires otherwise, aSub-Association shall be deemed the Owner of any real property
owned or administered by said Sub-Association. Owner shall not mean or refer to the holder of a
mortgage or security deed or its successors and assigns, unless and until such holder has acquired
title pursuant to foreclosure or judicial proceeding or deed-in-lieu of foreclosure.
Section 24. "Parcel" shall mean either of Parcel 1 or Parcel 2 as shown on the Site
Plan, a copy of which is attached to this Declaration as Exhibit "B".
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Section 25. "Parcel 2 Developer" shall mean Roosevelt's, Inc., a Pennsylvania
corporation. Parcel 2 Developer may assign all or a portion of its rights hereunder, or all or a
portion of such rights in connection with appropriate portions of the Community. In the event of
such a partial assignment, the assignee shall not be deemed to be the Parcel 2 Developer, but
may exercise such rights of Parcel 2 Developer specifically assigned to it. Any such assignment
shall be presumed to be on anon-exclusive basis, unless otherwise expressly stated.
Section 26. "Plat Parcel" and "Tract" shall mean the respective portions of the
Property designated as such on the Plat (as more particularly described on Exhibit "A" attached
hereto) and any other property added to the Property by Supplemental Declaration as elsewhere
provided herein and which is designated therein as a Parcel or Tract, as applicable.
Declarant may assign all or a portion of its rights hereunder, or all or a portion of such
rights in connection with appropriate portions of the Community. In the event of such a partial
assignment, the assignee shall not be deemed to be the Declarant, but may exercise such rights of
Declarant specifically assigned to it. Any such assignment shall be presumed to be on a non-
exclusive basis, unless otherwise expressly stated.
Section 27. "SFWMD" shall mean the South Florida Water Management District.
Section 28. "SFWMD Permit" shall mean SFWMD Permit No. ,dated
200_, a copy of which is attached hereto as Exhibit "D".
Section 29. "Special Assessments" shall mean assessments for services which the
Master Association is authorized or required to provide, to the extent that the Annual Assessment
is insufficient to fund such services. Such Special Assessments are more particularly described
in Article V of this Declaration.
Section 30. "Sub-Association" shall mean any association now or hereafter created to
administer one or more specific portions of the Property pursuant to a declaration of
condominium or declaration of covenants and restrictions or similar instrument affecting such
portions but shall not mean or in any manner be deemed to include the Maintenance Association.
Section 31. "Sub-Declaration" shall mean any declaration of covenants, conditions
and restrictions; declaration of condominium; or any other or similar instrument executed by a
declarant and recorded in the Public Records of Palm Beach County, Florida, affecting or
purporting to affect any portion (but not all) of the Property and which Sub-Declaration may
establish additional covenants and restrictions on certain portions of the Property and which,
without limiting the generality of the foregoing, may provide for the right to place liens against
property and the right to levy and collect assessments separate and apart from assessments or lien
right of the Maintenance Association.
Section 32. "Supplemental Declaration" shall mean any declaration of covenants,
conditions and restrictions; declaration of condominium; or any similar instrument other than this
Declaration which when executed by Declarant and/or Parcel 2 Developer, as applicable, and
either has the effect of adding or deleting property to the Property pursuant to the provisions of
Article II hereof, or any such declaration affecting all of the Property or the Community.
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Section 33. "Surface Water Management System" shall mean those portions of the
Property which the Maintenance Association is required to maintain pursuant to the SFWMD
Permit, as provided in Article IV, Section 10 of this Declaration, which may include, but not be
limited to, lakes, retention areas, culverts and related appurtenances.
Section 34. "Unit" shall mean any portion or subdivision of a Plat Parcel or Tract on
which there are constructed Improvements pursuant to the applicable zoning ordinance and/or
site plan (whether separately owned or rented by the Owner of such Plat Parcel or Tract and
whether such Unit is a single family or other non-condominium residence or is located in a
single-family or multi-family building (rental or otherwise), or any condominium unit in any
condominium building erected on any Plat Parcel or Tract of land within the Property. Such
improvements shall be deemed to be a Unit for purposes of this Declaration, upon recording of a
deed of conveyance by the applicable developer thereof, if a single family residence or upon
recording of the applicable declaration, if a condominium.
Section 35. "Village" shall mean the Village of Tequesta, Palm Beach County,
Florida.
Section 36. Interpretation and Flexibility. In the event of any ambiguity or question as
to whether any person, entity, property or improvement falls within any of the definitions set
forth in this Article, the determination made by Declarant and/or Parcel2 Developer, as
applicable, in such regard (as evidenced by a recorded instrument stating same) shall be binding
and conclusive. Moreover, Declarant and/or Parcel2 Developer, as applicable, may, also by way
of a recorded instrument, alter or amend the application of any portion of this Declaration as to
any specified portion(s) of the Community in order to reflect any unique characteristics thereof;
provided that such altered or amended application may not go so far as to be unequivocally
contrary to the overall, uniform scheme of development for the Community contemplated in this
Declaration.
ARTICLE II
PROPERTY SUBJECT TO THIS DECLARATION: ADDITIONS
THERETO/WITHDRAWALS THEREFROM
Section 1. Leal Description. The real property comprising the Property which shall
be held, transferred, sold, conveyed, leased and occupied subject to this Declaration is described
in Exhibit "A" attached hereto and made a part hereof by reference. Declarant and Parcel 2
Developer may, acting jointly or, as provided in Section 2 hereof, or acting along in their
respective sole discretion, either bring within this Declaration additional lands, or withdraw lands
pursuant to this Article.
Section 2. Addition of Property. Declarant and Parcel 2 Developer, acting jointly, or,
as provided in this Section 2, acting alone, in their respective sole discretion, may, from time to
time, bring other land under the provisions of this Declaration and thereby add to the land which
shall comprise the Property by executing and recording Supplemental Declarations. Such
Supplemental Declarations shall not require the consent of then existing Owners, the
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Maintenance Association or any other individual or entity whether or not the land being added
thereby is part of the Community described on Exhibit "A" or otherwise. If Declarant or
Parcel2 Developer is not the owner of the land to be subjected hereto and/or added to the
Property as of the date the applicable Supplemental Declaration is to be made, then the fee
owner(s) of such land shall join in such Supplemental Declaration. Once so added, such land
shall be deemed a part of the Property which has been subjected to this Declaration for all
purposes of this Declaration, except as modified pursuant thereto, if at all. Nothing in this
Declaration shall, however, obligate Declarant or Parcel 2 Developer to add to the Property.
All Owners, by acceptance of their deeds to, or otherwise acquiring title to their Plat
Parcels, Tracts or Units thereby automatically consent to any rezoning, change, addition or
deletion thereafter made by the Declarant and/or Parcel 2 Developer and shall evidence such
consent in writing if requested to do so by the Declarant and/or Parcel 2 Developer at any time
(provided, however, that the refusal to give such written consent shall not obviate the effect of
this provision). With respect to property not owned by the Declarant or Parcel 2 Developer, the
Declarant and/or Parcel 2 Developer shall have the right to impose (and retain for its own
account) fees for the privilege of allowing such other property to be made subject to this
Declaration as aforesaid. Notwithstanding the foregoing, no additions may be made to the
Property, nor Supplemental Declarations or Sub-Declarations be executed and recorded, without
the prior written joinder and consent of the Declarant and/or Parcel 2 Developer, as applicable,
which joinder and consent shall be in the sole and absolute discretion of the Declarant and/or
Parcel 2 Developer, as applicable.
Section 3. Withdrawal. Declarant reserves the right and Parcel 2 Developer shall
have the right (subject to the requirement of joint action so long as both Declarant and Parcel 2
Developer own any portion of the Property) to amend this Declaration unilaterally at any time,
without prior notice and without the consent of any other person or entity, for the purpose of
removing any portion of the Property then owned by the Declarant, Parcel 2 Developer, or the
Maintenance Association from the provisions of this Declaration to the extent included originally
in error or as a result of any change whatsoever in the plans for the Property desired to be
effected by Declarant and/or Parcel 2 Developer; provided, however, that such withdrawal is not,
in the reasonable judgment of Declarant and/or Parcel 2 Developer, as applicable, unequivocally
contrary to the overall, uniform scheme of development for the then-remaining portions of the
Property. Any withdrawal of land not owned by Declarant from the provisions of this
Declaration shall only be effected with the written consent or joinder of the then-owner(s) of
such land. Notwithstanding anything to the contrary contained in this Declaration, and without
limitation, all easements, use and other similar rights created or granted under this Declaration
shall automatically cease and terminate as to all land which is withdrawn from the Property in
accordance herewith.
ARTICLE III
MAINTENANCE ASSOCIATION, MEMBERSHIP AND VOTING RIGHTS
Section 1. Functions and Duties. The Maintenance Association shall be responsible
for the maintenance, repair and replacement of the Maintenance Areas, including without
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limitation, responsibility for the operation, maintenance and replacement of the Surface Water
Management System, in perpetuity, and as well as the obligation to take any actions against
Owners necessary to enforce the conditions of the SFWMD Permit; maintain copies of the
SFWMD Permit and any future permit actions of the SFWMD, which shall be maintained by the
registered agent of the Maintenance Association for the benefit of the Maintenance Association;
perform any monitoring and maintenance required in the SFWMD Permit; complete any
mitigation required to satisfy permit conditions; and maintain in perpetuity any signage required
by the SFWMD Permit. All costs and expenses incurred in connection with all of the foregoing
shall be General Expenses. Copies of the Articles of Incorporation and Bylaws of the
Maintenance Association are attached hereto and made a part hereof as Exhibits "E" and "F",
respectively.
Section 2. Membership. There shall be two (2) Members of the Maintenance
Association as more particularly described in Article I, Section 22 hereof.
Section 3. Voting Ri hg_ts. The two (2) members of the Maintenance Association
shall each have one (1) vote (the "Parcel 1 Vote" and the "Parcel 2 Vote", respectively). If the
Multicondominium Association or the entity designated as Member by the HOA and
Multicondominium Association is entitled to exercise the Parcel 1 Vote and/or the Condominium
Association is entitled to exercise the Parcel 2 Vote, each such entity entitled to exercise its Vote
shall exercise such Vote in accordance with the procedures set forth in the Bylaws. The Parcel 1
Member and Parcel 2 Member shall each designate a person authorized to cast the Member's
Vote and shall notify the Maintenance Association of the designated person ("Voting
Representative") from time to time.
Section 4. Board of Directors. The Maintenance Association shall be governed by a
Board of Directors as provided for in the Articles and Bylaws of the Maintenance Association.
The members of the Board of Directors shall be selected jointly by Declarant and Parcel 2
Developer until transfer of control pursuant to Article XI of this Declaration. Thereafter,
Directors shall be selected in the manner set forth in the provisions of this Declaration and
pursuant to the Articles and Bylaws of the Maintenance Association.
Section 5. Notices to Members. All notices, mailings and other documents provided
or to be provided by the Maintenance Association to Members shall be sent to the "Voting
Representative" at his/her address as on file with the Maintenance Association, from time to
time. The Maintenance Association shall not have any obligation or responsibility to provide
notices, mailings or documents to anyone other than the Voting Representatives as may be
designated, from time to time, by Members in accordance with this Declaration and the Articles
and Bylaws of the Maintenance Association.
Section 6. General Matters. When reference is made in this Declaration, or in the
Articles or Bylaws, or other relevant documents, to a majority or specific percentage of
Members, such reference shall be deemed to be reference to a majority or specific percentage of
either: (a) the votes of Members evidenced by a written consent of Members executed in
accordance with Section 2.8 of the Bylaws; or, as applicable (b) the votes of Members at a duly
constituted meeting thereof (i.e., one for which proper notice has been given and at which a
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quorum exists) and not of the Members themselves. To the extent lawful, the shall apply to,
without limitation, the establishment of a quorum at any applicable meeting.
ARTICLE IV
MAINTENANCE AREAS: CERTAIN EASEMENTS; COMMUNITY SYSTEMS
Section 1. Maintenance.
A. The Master Association shall at all times maintain in good repair, operate,
manage and obtain insurance for, and shall replace as often as necessary, the Maintenance Areas,
more particularly on Exhibit "C" hereto, any and all Improvements situated on the Maintenance
Areas (upon completion of construction by Declarant and Parcel 2 Developer), including, but not
limited to, all recreational facilities, landscaping, paving, private roads, street lighting fixtures,
sidewalks, Community Systems (to the extent same have not been made Maintenance Areas) and
other portions of the Property which are not maintained by aSub-Association, all such work to
be done as ordered by the Board of Directors of the Master Association. Maintenance of street
lighting fixtures shall include and extend to payment for electricity or other fuel consumed in
their illumination. Without limiting the generality of the foregoing, the Master Association shall
assume all of Declarant's (and its respective predecessors, if any) as well as Parcel2
Developer's responsibility and obligations to the Village and County, their respective
governmental and quasi-governmental subdivisions and similar entities of any kind, with respect
to the Maintenance Areas, including, but not limited to, roads, and shall indemnify Declarant,
Parcel 2 Developer, their respective affiliates, and their respective partners, officers, directors,
employees and agents, and hold them harmless with respect thereto. Notwithstanding anything
contained herein to the contrary, the Master Association shall not have the responsibility of
maintaining any areas dedicated to any governmental or quasi-governmental agency or
subdivision, unless and until the Master Association expressly assumes written responsibility for
the maintenance of such areas.
B. In the event of any conflict, ambiguity or uncertainty as to whether certain
maintenance or other duties as to any portion of the Property falls within the jurisdiction of the
Master Association or aSub-Association, the determination of the Board of Directors shall
control.
C. All maintenance and services performed or provided by the Master
Association, and its agents or designees, pursuant to this Section and all expenses hereunder shall
be paid by the Master Association through assessments imposed in accordance herewith. In
order to effect economies of scale and for other relevant purposes, the Master Association, on
behalf of itself and/or all or appropriate Sub-Associations, shall have the power to incur, by way
of contract or otherwise, General Expenses as to the Community or appropriate portions thereof,
and the Master Association shall then have the power to allocate portions of such expenses
among the affected Sub-Associations, based on such formula as may be adopted by the Master
Association or as otherwise provided in this Declaration. The portion so allocated to any Sub-
Association, if any, shall be deemed a General Expense thereof, collectible through its own
assessments.
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D. No Owner may waive or otherwise escape liability for the assessments for
such maintenance by non-use (either voluntary or involuntary) of the Maintenance Areas or
abandonment of his right to use the Maintenance Areas.
E. In the event any maintenance, repair, construction or re-construction of any
portion of the Maintenance Areas or other portions of the Property are required because of the
negligent or willful acts or omissions of an Owner or his guests, tenants, invitees, or family, such
expense shall be borne solely by such Owner and his Plat Parcel, Tract or Unit, as applicable,
which shall be subject to an Individual Assessment for such expense. In addition to and not in
lieu of such assessment, the Master Association has the right, but not the obligation to enforce
any other remedies available to it at law and in equity, against any responsible party for such
negligent or willful acts or omissions.
Section 2. Declarant's and Parcel 2 Developer's Easements.
A. The Declarant hereby reserves to itself, its successors and assigns, and grants
to Parcel 2 Developer upon recording of the conveyance of Parcel 2 to Parcel 2 Developer and its
successors and assigns, a perpetual non-exclusive easement, privilege and right in and to, over,
under, on, and across the Maintenance Areas, and all other portions of the Property, except for
Units owned by persons or entities other than Parcel 2 Developer, as well as across dedicated
roadways, rights-of--way, and pedestrian paths for ingress and egress as required by Declarant's
and Parcel2 Developer's officers, directors, employees, agents, independent contractors,
licensees and invitees for purposes of constructing, improving, selling or leasing said Property to
prospective purchasers, lessees and other invited guests, as well as to post signs and maintain
sales and leasing offices; provided, however, that such access and use shall not unnecessarily
interfere with the reasonable use and enjoyment of the Maintenance Areas by the Owners.
Declarant further reserves to itself, and grants to Parcel 2 Developer and its successors and
assigns, and their respective successors and assigns, officers, directors, employees, agents and
independent contractors, licensees and invitees, non-exclusive easements for ingress and egress
over, under, on, and across the Maintenance Areas, dedicated roadways, rights-of--way and
pedestrian paths within the Community for ingress and egress over said areas.
B. Declarant hereby reserves to itself, its successors and assigns, a perpetual non-
exclusive easement over all of the Plat Parcels and Tracts included within the Property for the
purpose of permitting the Declarant and its agents, contractors, subcontractors and employees to
come upon such land for the purposes of constructing and installing any and all improvements
upon any portion of any other contiguous Plat Parcel and/or Tract, which improvements shall
include, but not be limited to, clearing, grading, drainage, installation of utilities, construction of
buildings, walls of buildings, privacy walls, footings for same, application of stucco, painting,
landscaping, irrigation, regardless of whether or not transferred to third parties.
It is the purpose and intent of the Declarant to provide that the Declarant shall
have free, uninterrupted and unencumbered access to all Plat Parcels and Tracts for the purposes
of ingress and egress and enabling the Declarant and the Parcel 2 Developer and their respective
agents to carry out .construction activities on such Plat Parcels and Tracts, even if the
construction activity pertains to homes and other improvements on adjacent or other Plat Parcels
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and/or Tracts, providing, however, the Declarant and the Parcel2 Developer shall have the
obligation to restore any damage caused to any Plat Parcel and Tract by Declarant's or Parcel 2
Developer's use of such easement.
The easement and rights granted and reserved by this Section 2 shall continue as
long as the Declarant and the Parcel 2 Developer, each owns any Plat Parcel, Tract or Unit
within the Property and upon the sale or transfer of the last of the Units, the easements and
reservations created by this Section 2 shall be deemed to be terminated and of no further force or
effect.
C. Declarant and Parcel 2 Developer and their respective designees shall have the
right, but not the obligation, from time to time to enter upon the Maintenance Areas and other
portions of the Community including, without limitation, Plat Parcels, Tracts or Units, for the
purpose of the installation, construction, reconstruction, repair, replacement, operation,
expansion and/or alteration of any Improvements or facilities (including, without limitation,
Community Systems) on the Maintenance Areas or elsewhere in the Community that Declarant
and Parcel 2 Developer elect to effect, and Declarant and Parcel 2 Developer shall have the right
to use the Maintenance Areas for construction, sales, leasing, displays and signs during the
period of sale or lease of any of the land owned by Declarant or Parcel 2 Developer within the
Community.
Section 3. Taxes. It is intended that all real estate taxes assessed against the
Maintenance Areas shall be paid by the Owners thereof. However, notwithstanding the
foregoing, in the event that any such taxes are assessed directly against the Maintenance Areas,
the Master Association shall be responsible for the payment (subject to protest or appeal before
or after payment) of the same, including taxes on any improvements and any personal property
thereon accruing from and after the date this Declaration is recorded, and such taxes shall be
prorated between Declarant as to Parcel 1, Parcel 2 Developer as to Parcel 2, and the Master
Association as of the date of such recordation, and for such year.
Section 4. Utilities and Community Systems Easements. Declarant hereby grants to
Parcel 2 Developer and all subsequent Parcel 2Members anon-exclusive easement over, under,
upon and across Parcel 1 and Declarant reserves to itself and all subsequent Parcel 1 Members a
non-exclusive easement over, under, upon and across Parcel2 for the installation and
maintenance of utility lines and Community Systems. If a proposed utility line or Community
System would benefit one Parcel over the other, the owner of the Parcel so benefiting from the
utility line or Community System or its respective unit owners' association, as the case may be
(the "Benefited Party"), will not exercise its rights under such easement unless (i) said utility
and/or Community System is reasonably needed by such Benefited Party for the development of
its Parcel, and (ii) such Benefited Party has exhausted all efforts to locate the utility line or
Community System so that its installation and maintenance burdens solely the Benefited Party's
Parcel. If Declarant or any subsequent Parcel 1 Member or Parcel2 Developer or any
subsequent Parcel2 Member exercises any rights with respect to the reciprocal easements
granted and reserved herein, such Member will (i) provide notice to the other Member prior to
entry onto such Parcel and will take all actions necessary or appropriate so as to burden the other
Parcel in the most minimal way possible, (ii) install such utility line or Community System at a
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location as may be reasonably requested by the other Member, (iii) perform or cause to be
performed all work in connection with such easement at its sole cost and expense in accordance
with applicable laws, and upon the completion thereof, repair and restore the property disturbed
by such work to its condition immediately prior to such work; and (iv) provide appropriate
evidence of insurance reasonably acceptable to the other Member. Notwithstanding the
foregoing, Benefited Party shall have no right to locate utility lines or Community Systems on,
over or under any existing structure on the other Parcel.
Section 5. Easement for Roadway Use. Declarant hereby reserves to itself and all
subsequent Parcel 1 Members and grants to Parcel2 Developer and all subsequent Parcel2
Members a perpetual easement between Parcel 1 and Parcel 2 for the pedestrian and vehicular
passage in, over and through the interior roadways included in the Common Facilities by each
Owner and their tenants, guests and invitees as a means of access to each Parcel and applicable
Plat Parcel, Tract and Unit therein.
Section 6. Easement for Utility Tie In. Declarant hereby reserves to itself and all
subsequent Parcel 1 Members and grants to Parcel2 Developer and all subsequent Parcel 2
Members a perpetual utility facilities easement between Parcel 1 and Parcel 2 for the installation
and use (including the right to tie into, subject to there being available capacity to service both
parcels) any utility facilities (including electric, telephone, sanitary sewer, water, gas or cable
television facilities) located within the entrance roadway.
Section 7. Owner's Easements. Subject to the below-described rights of the
Maintenance Association to prohibit Owners from using certain portions of the Maintenance
Areas, each Owner and each tenant, agent, licensee, and invitee of such Owner, shall have and
there is hereby granted by Declarant a permanent and perpetual non-exclusive easement for the
use and enjoyment of all Maintenance Areas in common with all other such Owners, their
tenants, licensees, agents and invitees, subject, however, to the withdrawal of portions thereof
from the Community in accordance with this Declaration and further subject to this Declaration,
the Articles and Bylaws of the Maintenance Association and the Rules and Regulations
promulgated by the Maintenance Association and all Supplemental Declarations and Sub-
Declarations that may hereafter be recorded in the Public Records of Palm Beach County,
Florida. Further, each Sub-Declaration governing any Maintenance Areas shall contain the same
foregoing grant of easement for the benefit of all Owners, tenants, agents, licensees and invitees
of such Owners.
All Members' rights of use and enjoyment of the Maintenance Areas are also subject to
the following:
A. Easements granted herein for the purposes of the Master Association
performing its obligations hereunder and of ,enforcing the covenants, restrictions, rules or
regulations of the Master Association from time to time;
B. The right and duty of the Master Association to levy and collect assessments
against each Plat Parcel, Tract and Unit, as applicable, and Owner thereof for the purpose of
paying the General Expenses in compliance with the provisions of this Declaration;
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C. The right of the Master Association to suspend the right of an Owner and his
designees to use the Maintenance Areas (except for legal access) for any period during which
any applicable assessment remains unpaid; and for a period not to exceed thirty (30) days for any
infraction of lawfully adopted and published rules and regulations;
D. The right of the Master Association to adopt, at any time and from time to
time, and to enforce rules and regulations governing the use of the Maintenance Areas;
E. The right of the Master Association, by a unanimous affirmative vote of the
Board of Directors, or the Declarant and Parcel 2 Developer acting jointly, or either acting
unilaterally as provided on page 3 of this Declaration (i.e., without the joinder or consent of the
Master Association or any Owners) to dedicate portions of the Maintenance Areas to a Sub-
Association or a public or quasi-public agency, community development district, special taxing
district or similar entity under such terms as the Master Association and/or Declarant and/or
Parcel 2 Developer, as applicable, deems appropriate and to create or contract with the Master
Association and/or Declarant and/or Parcel 2 Developer, as applicable, community development
and special taxing districts for lighting, roads, recreational or other services, security,
communications, and other similar purposes deemed appropriate by the Master Association
and/or Declarant and/or Parcel 2 Developer (to which such creation or contract all Owners
hereby consent);
F. Anything to the contrary in this Declaration notwithstanding, the Declarant
and/or Parcel2 Developer, as applicable, shall have the right to permit persons other than
Owners and designated persons to use certain portions of the Maintenance Areas and any
recreational facilities that may be constructed thereon under such terms as Declarant and/or
Parcel 2 Developer, as applicable, and their respective successors and assigns, may from time to
time desire without interference from the Master Association, Owners, their tenants, guests and
invitees;
G. The right of the Declarant and/or Parcel 2 Developer, as applicable, and the
Master Association to have, grant and use general ("blanket") and specific easements over, under
and through the Maintenance Areas, and to modify, amend, terminate, supplement and relocate
such easements;
H. The continuing right of the Declarant and the Parcel 2 Developer and their
respective designees, contractors, successors and assigns, to conduct such activities within the
Property as are necessary, in the sole judgment of Declarant and Parcel 2 Developer, to develop
the Property and Community, including, but not limited to, construction of Improvements therein
and maintenance of the development of the Property or any part thereof, as well as such activities
as are necessary in the sole judgment of Declarant and Parcel 2 Developer to sell or lease Units
located within the Property. As a material condition for ownership of a Plat Parcel, Tract or Unit
within the Property, each Owner, by accepting a deed to a Plat Parcel, Tract or Unit, whether or
not so stated therein, hereby releases Declarant and Parcel 2 Developer and their respective
affiliates, partners, officers, directors, employees and agents from any alleged claim or cause of
action, including but not limited to trespass or interference with his quiet enjoyment of his Plat
Parcel, Tract or Unit or the Maintenance Areas, due to the development of the Property, whether
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or not the construction operations are performed on Plat Parcels, Tracts or Units, or Maintenance
Areas, and each Owner acknowledges and agrees that Declarant shall have the sole right of
design, construction, development and improvement of the Maintenance Areas and the Plat
Parcels, Tracts and Units within the Property unless otherwise indicated by Declarant.
Section 8. Easements Appurtenant. The easements provided herein shall be
appurtenant to and shall pass with the title to each Parcel, Plat Parcel, Tract and Unit.
Section 9. Community Systems. Declarant and/or Parcel 2 Developer, as applicable,
shall have the right, but not the obligation, to convey, transfer, sell or assign, all or any portion of
the Community Systems located within the Property, or all or any portion of the rights, duties or
obligations with respect thereto, to the Master Association, one or more Sub-Associations or any
other person or entity (including an Owner as to any portion of a Community System located
on/in his Unit). Without limiting the generality of any other provisions hereof, if and when any
of the aforesaid entities receives such a conveyance, sale, transfer or assignment, such entity
shall automatically be deemed vested with such rights of Declarant in connection therewith;
provided that if the Master Association is the applicable entity, then the Community System or
applicable portions thereof shall be deemed Maintenance Areas hereunder and the Master
Association's rights, duties and obligations with respect thereto shall be the same as those as to
other Maintenance Areas unless otherwise provided by Declarant. Any conveyance, transfer,
sale or assignment made by Declarant and/or Parcel 2 Developer, as applicable, pursuant to this
Article IV, Section 9 (i) may be made with or without consideration, (ii) shall not require the
consent or approval of the Master Association or any Owner or Sub-Association and (iii) if made
to the Master 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 by the Master Association.
Section 10. Loxahatchee River Environmental Control District.
A. Each Owner covenants and agrees that his Plat Parcel, Tract or Unit, as the
case may be, is located within the jurisdiction of the Loxahatchee River Environmental Control
District (the "LRECD") and which LRECD has contracted with Declarant, as owner of the
Property to reserve service availability for physical connections to a regional wastewater system
upon construction of the buildings, Units and other improvements contemplated to be
constructed on the Property.
B. Declarant agrees that, upon demand, it shall grant and convey to the District,
all required easements and rights-of--way in the Property as the LRECD may, from time to time
request, based upon the criteria of utilization for utility purposes related to water, wastewater,
I.Q. water and stormwater.
C. Each Owner acknowledges and agrees that such Owner will be responsible for
paying its pro rata share of the charges for such wastewater system to the Association which
shall remit same to the LRECD for the Property, and each Owner further understands and agrees
that the LRECD shall have a lien on the Property and Units serviced by it for all charges, until
paid, for services provided to the Property and/or Units by the LRECD, together with connection
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fees associated therewith, which lien shall be prior to all other liens, except that such lien shall be
on parity with the lien of the state, county and municipal taxes, and any lien for charges for
services created pursuant to Chapter 159.17, Florida Statutes. Such lien shall be perfected by the
LRECD by recording in the Official Records of Palm Beach County, Florida, a claim of lien in
form substantially as provided in Section 713.08, Florida Statutes. A copy of the claim of lien
shall be served as provided in Section 713, Florida Statutes, within ten (10) days after the claim
of lien is recorded. If thirty (30) days after service has been made, liens created under this
section remain delinquent, such liens may be foreclosed by the LRECD in the manner provided
by the laws of Florida for the foreclosure of mortgages on real property, and the LRECD shall be
entitled to reasonable interest and attorney's fees and other court costs.
Section 11. Public Easements. Fire, police, health and sanitation and other public
service personnel and vehicles shall have a permanent and perpetual non-exclusive easement for
ingress and egress over and across the Maintenance Areas in the performance of their respective
duties.
Section 12. SFWMD Drainage Easements.
A. Non-exclusive easements are hereby granted by Declarant for the installation
and maintenance of drainage facilities which shall exist in favor of the Master Association and
SFWMD. Within these easement areas, no structure, planting or other material, other than sod,
shall be placed or permitted to remain (unless installed by the Declarant or the Parcel2
Developer or their respective designees, successors or assigns and replacements of same) which
may interfere with such installation and maintenance, or which may obstruct or retard the flow of
storm water. Notwithstanding the foregoing, sod and other plantings shall be permitted if the
drainage easement is one which covers a buried pipeline, and over which no surface drainage is
to be maintained. The Master Association and SFWMD shall have access to all such drainage
easements, for the purpose of operation and of maintenance thereof and shall not be held liable
for any damage to or removal of any plantings caused by such operation and maintenance
activities.
B. Each Plat Parcel, Tract and all Maintenance Areas shall enjoy and shall be
subject to a perpetual, non-exclusive cross easement of drainage and flowage in favor of any
adjacent Plat Parcel(s), Tracts and Maintenance Areas and no Owner may construct or permit
any Improvement or other structure or condition to exist upon his Plat Parcel, Tract or Unit
which will interfere with storm water runoff onto or from his Plat Parcel, Tract or Unit, except if
constructed by the Declarant, the Parcel 2 Developer or their respective designees or assignees.
Section 13. Maintenance of Surface Water Management S stem. The Master
Association shall have the responsibility to perpetually maintain the Surface Water Management
System and take action against Owners as necessary to enforce the conditions of the SFWMD
Permit. Copies of the SFWMD Permit and any future permit actions of the SFWMD shall be
maintained by the registered agent of the Master Association for the benefit of the Master
Association. Any monitoring and maintenance required in the SFWMD Permit shall be the
responsibility of the Master Association which shall satisfy permit conditions, as set forth in the
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SFWMD Permit. The Master Association shall also be responsible for the perpetual
maintenance of any signage required by the SFWMD Permit.
Section 14. South Florida Water Management District. Declarant, the Parcel 2
Developer by accepting conveyance of title to Parcel 2, the Master Association, and its Members
acknowledge that SFWMD has the right to take enforcement action, including civil action for an
injunction and penalties, against the Master Association to compel it to correct any outstanding
problems with the Surface Water Management System facilities or in mitigation or conservation
areas under the responsibility or control of the Master Association, if any. Further provided
however, the Master Association and the SFWMD shall have equal and independent rights to
enforce any and all of the covenants and restrictions set forth in the Declaration which apply to
or are designed to protect the water management system which is a part of the Community
Systems servicing the Property. Enforcement of these covenants and restrictions shall be by any
proceeding at law or in equity against any person or persons violating or attempting to violate
any covenant or restriction, and may seek to restrain violation or to recover damages against the
Plat Parcels, Tracts, Units and Owners thereof which violate any of the provisions of this
Declaration. Failure by the Master Association, or the SFWMD to enforce any covenant or
restriction herein contained shall in no event be deemed a waiver of the right to do so thereafter,
nor shall such failure to so enforce create any liability on the part of the Master Association, or
the SFWMD. In any action or proceeding under this Section, the prevailing party shall be
entitled to recover its costs and reasonable attorney's fees including attorneys' fees and costs on
appeal.
Section 15. Master Association Easements. There is hereby created an easement in
favor of the Master Association, and/or the ARB, and/or the employees and agents of the
Declarant, the Parcel 2 Developer or the Master Association and of any management entity
contracted by the Master Association, as appropriate, and their applicable designees, over each
Plat Parcel and Tract including without limitation, the Maintenance Areas for the purpose of
entering onto the Plat Parcel and/or Tract and the Maintenance Areas therein, for the purpose of
performing their obligations to maintain, repair and replace such Maintenance Areas and the
improvements therein, and to enforce the covenants in this Declaration, including but not limited
to the provisions of Article IX hereof regarding the ARB and all standards, rules or regulations
promulgated pursuant to this Declaration.
Declarant and Parcel 2 Developer each as Indemnitor ("Indemnitor") hereby indemnify
each other as indemnitee from claims or other liabilities resulting from damage to property or
injury to or death to persons which is caused by the exercise by the Indemnitor of its rights under
the above easements.
ARTICLE V
COVENANT FOR MAINTENANCE ASSESSMENTS
Section 1. Creation of the Lien and Personal Obligation for Assessments. Except as
provided elsewhere herein, the Declarant, the Parcel 2 Developer (and each party joining in this
Declaration or in any Supplemental Declaration), for each Plat Parcel, Tract or Unit within the
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Property as to which it is the Owner, hereby, respectively, covenants and agrees, and each Owner
of any Plat Parcel, Tract or Unit now or hereafter subjected to this Declaration by acceptance of a
deed therefor, whether or not it shall be so expressed in any such deed, other conveyance or
hereunder, shall be deemed to covenant and agree, to pay to the Master Association annual
assessments or charges for the General Expenses of the Master Association which shall include
but not be limited to, maintenance, operation, management and insurance of the Maintenance
Areas and the Master Association as provided herein, including, but not limited to the
Maintenance Areas whether or not such items are on dedicated property or owned by Sub-
Associations or otherwise, including such reasonable reserves as the Master Association may
deem necessary, and capital improvement assessments as provided herein, all such assessments
to be fixed, established and collected from time to time as hereinafter provided. In addition,
Individual Assessments may be levied against particular Owners, Plat Parcels, Tracts and Units
for fines and expenses incurred against particular Plat Parcels, Tracts, Units and/or Owners to the
exclusion of others and other charges against specific Plat Parcels, Tracts, Units or Owners as
contemplated in this Declaration. The Annual and Special Assessments, together with late
charges, interest and costs of collection thereof as hereinafter provided, shall be charges on the
land and shall be a continuing lien upon the property against which each such assessment is
made. Each such Assessment, together with late charges, interest and costs of collection thereof
as hereinafter provided, shall also be the personal obligation of all Owner(s) of such property
from time to time.
Section 2. Purpose of Assessments. The assessments levied by the Master
Association shall be used for carrying out any lawful purpose of the Master Association as
provided in this Declaration, Articles or Bylaws, including but not limited to the improvement,
maintenance, repair, replacement, enhancement and operation of the Maintenance Areas and to
provide services which the Master Association is authorized or required to provide including, but
not limited to, the payment of insurance, constructing improvements, repair, replacement,
payment of the cost to acquire labor, equipment, materials, management and supervision
necessary to carry out its authorized functions, and for the payment of principal, interest and any
other charges connected with loans made to or assumed by the Master Association for the
purpose of enabling the Master Association to perform its authorized or required functions. The
Master Association may establish reserve funds and/or contingency funds to be held in an
interest bearing account or investments as a reserve for (a) major rehabilitation or major repairs
and deferred maintenance, (b) for emergency and other repairs required as a result of storm, fire,
natural disaster or casualty loss, and (c) for such other purposes as specifically determined by the
Board of Directors of the Master Association.
Section 3. Determination of Assessments. Assessments by the Master Association
against each Owner of a Unit and his Unit shall be allocated as follows: (i) the Declarant and
any subsequent Parcel 1 Member will pay a 59/151 share; and (ii) the Parcel 2 Developer and
any subsequent Parcel 2 Member will pay a 92/151 share. In the event there is more than one
unit owners' association on a Parcel, and, as to Parcel 1, if there are any non-condominium
residences on such Parcel, such unit owners' associations together with the owners of the
non-condominium residences as to Parcel 1 will collectively pay the amounts set forth above,
and the formula for calculation of each Unit Owner's share of the Assessments for such Parcel
shall be determined by the applicable Parcel Member and Unit Owners of such Parcel. Should
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the Master Association become the Owner of any Unit(s), the Assessment which would
otherwise be due and payable to the Master Association by the Owner(s) of such Unit(s) shall be
apportioned and the Assessment therefor levied ratably in accordance with the above formula
among the Owners of all Units which are not owned by the Master Association. Further,
notwithstanding anything to the contrary contained elsewhere in this Declaration, any Parcels,
Plat Parcels, Tracts or Units owned by the Declarant or Parcel 2 Developer or their respective
affiliates shall not be subject to Assessments for capital improvements without the Declarant's or
Parcel 2 Developer's prior written consent, as applicable.
Section 4. Time for Pam. The Assessments levied against the Owner and his
Unit shall be payable in quarterly, monthly, or such other installments and at such time as shall
from time to time be fixed by the Board of Directors, and the due date of any Assessment shall
be fixed in the Board resolution authorizing the Assessment.
Section 5. Annual Budget of General Expenses. The Board of the Master
Association shall prepare and adopt an Annual Budget at a meeting of the Board to be held not
less than thirty (30) days in advance of the commencement of each fiscal year. The Annual
Budget shall project the estimated total expenditures for the services that are to be provided by
the Master Association and other ,expenses of the Master Association in the performance of its
functions, duties and responsibilities under this Declaration, the Articles and Bylaws of the
Master Association. The Master Association shall, at the same time as it prepares the Annual
Budget, prepare a schedule which sets forth the Aggregate Assessment pursuant to the Annual
Budget. To the extent that the Aggregate Assessment is insufficient to fund the services which
the Master Association is authorized or required to provide, the Master Association may levy and
collect a Special Assessment to cover the cost thereof in accordance with the provisions of this
Declaration and the Articles and Bylaws of the Master Association. Such Special Assessments
may also be levied and collected for repairs, services, replacements or betterments necessary to
be performed in the event of a casualty, catastrophe, Act of God or other unforeseen expenses of
an emergency nature incurred by the Master Association. Such Special Assessments shall be
determined and assessed by the Board in accordance with same proportionate shares provided
herein for the Aggregate Assessment.
Section 6. Special Assessments. The Master Association, through its Board of
Directors, shall have the power and authority, from time to time, to levy and collect Special
Assessments from each Owner for the following purposes: the acquisition of real or personal
property by the Master Association; payment, in whole or in part, of the cost of construction of
capital improvements to the Property; the cost of construction, reconstruction, unexpected repair
or replacement of a capital improvement, including the necessary fixtures and personal property
related thereto; the cost of maintenance or repair of any property which the Master Association is
obligated to maintain hereunder; the expense of indemnification of each director and officer of
the Master Association; and such other purposes deemed appropriate by the Board of Directors.
All notices of Special Assessments from the Master Association to Owners shall designate the
amount thereof and the date when due. All Special Assessments shall be levied on the same
basis as Aggregate Assessments described in Article V, Section 5 of this Declaration, and shall
be collectable in such manner as the Board of Directors shall determine. The funds collected
pursuant to a Special Assessment shall be used only for the specific purpose or purposes set forth
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in such notice. However, upon completion of such specific purpose or purposes, any excess
funds will be considered Common Surplus, or may, at the discretion of the Board, be applied as a
credit towards future Assessments.
Section 7. Individual Assessments. The Master Association, through its Board of
Directors, shall have the power and authority, from time to time, to fix, levy and collect
individual assessments ("Individual Assessments") against an Owner for the cost of repairs or
replacements within the Property for damage to any portion of the Maintenance Areas as a result
of intentional acts, misuse, negligence, failure to maintain or for which the Owner is otherwise
responsible, or which the Owner has failed or refused to perform, and which failure or refusal
has endangered or impaired the use or value of other Parcels, Plat Parcels, Tracts, Units or
Maintenance Areas within the Property, as determined by the Board. Individual Assessments
shall be collectible in such a manner as the Board of Directors shall determine. The Master
Association may also levy Individual Assessments against any Owners who have caused the
Master Association to incur special expenses due to willful or negligent acts of said Owners or
their families or guests. The Master Association shall have the right to file a lien against the Unit
of any Owner not paying any assessment when due and may foreclose such lien as well as pursue
any other remedies available to the Master Association, including but not limited to, those
available under this Declaration, the Articles and Bylaws, as the same may be amended from
time to time. Individual Assessments may include a surcharge for administrative expenses
incurred as elsewhere provided in this Declaration.
Section S. Reserve Funds. The Declarant and Parcel 2 Developer and subsequent
Parcel 1 and Parcel 2 Members may vote to waive the reserves, if any, or reduce funding of the
reserves. The Board, in establishing each annual budget, may include therein sums to be
collected and maintained as reserves for capital expenditures and deferred maintenance for
Maintenance Areas and personal property held for the joint use and benefit of the Members.
Section 9. Contingency Funds. In addition to reserves, if any, established pursuant to
Section 8 hereof, the Board, when establishing each annual budget may, when deemed necessary
or desirable, include therein a sum or sums to be collected and maintained as contingency funds
to provide a measure of financial stability during periods of special stress when such sums may
be used to meet deficiencies from time to time existing as a result of delinquent payment of
Assessments by Owners, as a result of emergencies or for other reason placing financial stress
upon the Maintenance Association. The annual amount allocated to such contingency funds and
collected therefor, except as required by law, shall not exceed twenty-five percent (25%) of the
current Aggregate Assessment levied against all Owners. Upon accrual in the contingency funds
of an amount equal to twenty-five percent (25%) of the current Aggregate Assessment, unless
and except to the extent required by law, no further payments shall be collected from Owners as
a contribution to such contingency funds, unless they shall be reduced below the twenty-five
percent (25%) level, in which event, the Aggregate Assessment against each Owner and/or Unit,
Tract or Plat Parcel, as applicable, may be increased to restore the contingency funds to an
amount which will equal twenty-five percent (25%) of the current annual amount of said
Assessment. The Members may call a special meeting of the Master Association or the
Members may raise issues pertaining to the contingency funds at a meeting of the Master
Association as provided for in the Bylaws. Upon the affirmative vote of a majority of the
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Members, the Master Association may elect to reduce the levels of the contingency funds below
those stated above.
Section 10. Use of Maintenance Association Funds. All monies collected by the
Maintenance Association shall be treated as the separate property of the Maintenance
Association. Such monies may be applied by the Maintenance Association to the payment of
any expense of operating and managing the Maintenance Association or the proper undertaking
of all acts and duties imposed upon the Maintenance Association by virtue of this Declaration,
the Articles of Incorporation and Bylaws. All the monies for Aggregate Assessments paid to the
Maintenance Association by any Owner may be commingled with monies paid to the
Maintenance Association by other Owners. All funds and other assets of the Maintenance
Association, and any increments thereto or profits derived therefrom or from the leasing or use of
Maintenance Areas, shall be held for the benefit of the Members of the Maintenance Association.
Section 11. Delinquency or Default. The payment of any Assessment or installment
thereof due to the Master Association shall be in default if not paid to the Association on or
before the date due. When in default, the delinquent Assessments or installments thereof shall
bear interest from the date due at the highest rate permitted by law until the same, and all interest
due thereon, has been paid in full. In addition, when the payment of Assessments is in default,
the Master Association shall have the right to accelerate future Assessments which would not
otherwise be due and payable.
Section 12. Liability Not Subject to Waiver. No Owner may exempt himself from
liability for any Assessment levied against such Owner and his Unit by waiver of the use or
enjoyment of any of the Maintenance Areas, abandonment of the Unit, or in any other manner.
Section 13. Lien for Assessment. The Maintenance Association is hereby granted a
lien upon each Unit and, if such Unit is in a condominium, its appurtenant undivided interest in
the common elements of the applicable condominium, and which lien shall and does secure the
monies due for all: unpaid assessments which are due and which may accrue subsequent to the
recording of the claim of lien and prior to the entry of a certificate of title, as well as interest and
all reasonable costs and attorney's fees incurred by the Maintenance Association incident to the
collection process. The lien granted to the Maintenance Association may be established and
foreclosed in the Circuit Court in and for the County.
Section 14. Recording and Priority of Lien. The lien of the Maintenance Association
shall be effective from and relate back to the recording in the Public Records of the County of
this Declaration. However, as to first mortgages of record, the lien is effective from and after the
recording of a claim of lien as hereinafter described. The Maintenance Association shall file a
claim of lien stating the Unit encumbered thereby, the name of the record Owner, the name and
address of the Maintenance Association, the amount due to the Maintenance Association, and the
date such amount was due. The claim of lien shall secure all Assessments, plus interest, costs,
attorneys' and legal assistants' fees, advances to pay taxes and prior encumbrances and interest
thereon, which are due and which may accrue subsequent to the recording of the claim of lien
and prior to the entry of a final judgment of foreclosure. Such claim of lien shall be signed by an
officer or agent of the Maintenance Association. Upon full payment of all sums secured by such
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claim of lien, the same shall be satisfied of record. The lien of the Maintenance Association
shall be subordinate in the following order of priority to (a) ad valorem tax liens; and (b) the lien
of any first mortgage held by an Institutional Mortgagee, subject, however, to the liability of
such mortgagee for Assessments as provided by applicable law. Ad valorem taxes, benefit taxes
and special assessments by taxing authorities shall be assessed against each Unit and its
appurtenant undivided interest in the common elements of the applicable condominium. Such
taxes and assessments shall constitute a lien only upon the Unit and its appurtenant undivided
interest in the common elements of the applicable condominium. Liens for assessments under
this Article shall be superior to liens for assessments of the Sub-Associations which may be
referred to in declarations of condominium or of restrictions and protective covenants recorded
with respect to certain Units
Section 15. Effect of Foreclosure or Judicial Sale. In the event that any person, firm
or corporation shall acquire title to any Unit and its appurtenant undivided interest in the
common elements of the applicable condominium by virtue of any foreclosure or judicial sale or
any transfer in lieu thereof, then such person, firm or corporation so acquiring title shall be liable
and obligated for Assessments commencing on the date of acquiring title. Any Assessments as
to which the party so acquiring title shall not be liable shall be absorbed and paid by all Owners
of all Units including the Owner acquiring title through foreclosure or judicial sale as a part of
the General Expense, in accordance with the formula set forth in this Article V, Section 15,
although nothing herein contained shall be construed as releasing the party personally liable for
such delinquent Assessment from the payment thereof or the enforcement of collection of such
payment by means other than foreclosure.
Section 16. Effect of Voluntary Transfer. When the Owner of any Unit proposes to
lease, sell or mortgage the same, the Maintenance Association, upon written request of the
Owner of such Unit, shall furnish within 15 days after receipt of such written request, to the
proposed lessee, purchaser or mortgagee, a statement stating all Assessments and other monies
which are due and payable to the Maintenance Association by the Owner of such Unit with
respect to the Unit. Such statement shall be executed by any officer of the Maintenance
Association and any lessee, purchaser or mortgagee may rely upon such statement in concluding
the proposed lease, purchase or mortgage transaction; and the Maintenance Association shall be
bound by such statement.
In the event that a Unit is to be leased, sold or mortgaged at the time when payment of
any Assessment against the Owner and the Unit which is due to the Maintenance Association is
in default (whether or not a claim of lien has been recorded by the Maintenance Association),
then the rent, sale proceeds or mortgage proceeds, as the case may be, shall be applied by the
lessee, purchaser or mortgagee in the following order: (a) first to the payment of any then
delinquent Assessment or installment thereof due to the Maintenance Association; and (b)
second, payment of the balance of such rent, proceeds of sale or mortgage to the Owner of the
Unit responsible for payment of such delinquent Assessment.
In any transfer of title of a Unit, the grantee shall be jointly and severally liable with the
grantor for all unpaid Assessments against the grantor made prior to the time of such transfer of
title, without prejudice to the rights of the grantee to recover from the grantor the amounts paid
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by the grantee therefor. In addition, if the amount due is not paid by the grantor, the grantee
shall pay the amount owed to the Maintenance Association within thirty (30) days after transfer
of title.
Section 17. No Election of Remedies. All rights, remedies and privileges granted to
the Maintenance Association, the Declarant, Parcel 2 Developer, any other Parcel Member, or
any Owner pursuant this Declaration, the Articles of Incorporation, Bylaws and(or) any rules and
regulations promulgated by the Board of Directors from time to time, shall be deemed to be
cumulative, and the exercise of any one or more shall not be deemed to constitute an election of
remedies, nor shall it preclude the party thus exercising the same from exercising such other and
additional rights, remedies, or privileges as may be available to such party at law or in equity.
Section 18. Responsibility for Master Association: Assessments By Sub-Associations.
Although each Owner shall be personally obligated for the payment of Assessments pursuant to
this Declaration, in the event there is formed or created Sub-Association(s) at any time in the
future, it shall be the option of the Master Association to collect Assessments from the Owners
through the Sub-Association(s) which shall in turn collect each Owner's proportionate share of
the Assessments of the Master Association, and the Sub-Association(s) shall remit same to the
Master Association in the same time periods required for payment directly by the Owner. In no
manner shall the Master Association be obligated to utilize the Sub-Association as its collection
agent, but may do so at its option and by written direction to the Sub-Association at the time of
levying of the applicable Assessment. In no manner shall the collection of Master Association
Assessments through Sub-Association(s) be deemed to obviate or waive any rights or remedies
of the Master Association to proceed directly against Owners in the event of failure of any
Owner to pay its share of any Assessment levied by the Master Association pursuant to this
Declaration. In the event the Master Association has delegated collection authority to any
particular Sub-Association, the respective Sub-Association shall be liable, in addition to each
applicable Owner, for the applicable Assessment against all of the Units located therein or
otherwise under the jurisdiction of said Sub-Association.
Section 19. Certain Exempt Property. No common areas or common elements of a
Sub-Association shall be subject to direct assessment hereunder (although the share of common
elements appurtenant to a condominium Unit shall be subject to the lien for Assessments
applicable to such Unit). The foregoing exemption shall apply to any land owned by a
governmental entity or publicly-regulated utility company (including, for example, without
limitation, Florida Power and Light Co., Bell South and South Florida Water Management
District) as long as such land is used for or in connection with the provision of utilities (exclusive
of business offices, retail outlets and the like). In the event of any ambiguity or doubt as to
whether any particular open space or other land is subject to assessment, the determination of the
Declarant and/or Parcel 2 Developer (or if the Declarant and/or Parcel 2 Developer is no longer a
Member of the Master Association, then the Board of Directors of the Master Association) shall
be final and conclusive (and not subject to later change unless the use of the open space in
question changes).
Unless delegated to aSub-Association by the Master Association, it shall be legal duty
and responsibility of the Master Association to enforce payment of all Assessments hereunder.
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Failure of a collecting entity to send or deliver bills or notices of Assessments shall not, however,
relieve Owners from their payment obligations hereunder, including late fees, interest, attorneys
fees and costs.
All Assessments, late charges, interest, penalties, fines, attorney's fees and other sums
provided for herein shall accrue to the benefit of the Master Association.
The Master Association shall have such other remedies for collection and enforcement of
assessments as may be permitted by applicable law. All remedies are intended to be, and shall
be, cumulative.
Section 20. Collection of Assessments. Assessments levied pursuant hereto shall be
collected in the manner established pursuant to this Declaration. In the event any Sub-
Association provides for collection of Master Association Assessments, the provisions of this
Declaration shall govern, and all references herein to collection (but not necessarily
enforcement) by the Master Association shall be deemed to refer to the Sub-Association
performing such collection duties and the obligations of Owners to pay Assessments shall be
satisfied by making such payments to the applicable Sub-Association. In the event only a
portion of the assessments of the Master Association and aSub-Association are collected where
collection is attempted by one entity for both, the amount collected shall be applied first to
Assessments of the Master Association and the balance, if any, shall then be paid to such Sub-
Association. The amount collected shall be applied in order of the age of the Assessment with
application first to the oldest delinquent Assessment, where collection is made by one entity for
both. In addition, fees collected for Master Association Assessments shall be applied in the
following order: fees and costs of collection, late charges, interest and Assessments.
When all Units, Tracts and Plat Parcels within the Property are sold and conveyed to
purchasers or when Declarant and Parcel 2 Developer each transfers control of the Board of
Directors in accordance with the provisions of this Declaration, whichever occurs first, neither
the Declarant nor Parcel 2 Developer, nor any of their respective affiliates shall have further
liability of any kind to the Master Association for the payment of Assessments, or contributions,
whatsoever. Declarant and Parcel 2 Developer shall have no obligation to fund reserves, of any
kind, for the Master Association at any time.
Section 21. Working_Capital Contribution. Each initial purchaser of a Unit (other than
a Declarant or Parcel 2Developer-designated builder or developer purchasing for construction
and resale, if any) shall pay to the Master Association prior to obtaining approval of a proposed
purchase and sale transaction or other transfer of title to a Unit, a one time only working capital
contribution, the amount of which shall be determined by the Board in its discretion, from time
to time. The use and expenditure of Working Capital Contributions shall be determined by the
Board of Directors, in its discretion.
Section 22. Master Association Funds. The portions of all Aggregate Assessments
collected by the Master Association for reserves for future expenses for contingency funds, and
the entire amount of all Special Assessments, shall be held by the Master Association and may
be invested in interest bearing accounts or in certificates of deposit, money market accounts or
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other like instruments or accounts available at banks or savings and loan institutions, the deposits
of which are insured by an agency of the United States of America.
ARTICLE VI
MAINTENANCE OF UNITS, TRACTS AND PARCELS
The following maintenance provisions concerning Units, Tracts and Plat Parcels within
the Property are intended to describe those maintenance obligations of Owners as to their
respective Plat Parcels, Tracts and Units. In addition to the maintenance obligations and
responsibilities described in this Article and in other provisions of this Declaration, the Articles
and Bylaws, such maintenance responsibilities as may be imposed by aSub-Association shall be
in addition to and not in lieu of the maintenance responsibilities of Owners described herein.
Section 1. Sub-Associations. All of the requirements, obligations and remedies set
forth in this Article shall apply to all Sub-Associations and their common areas or common
elements and all improvements thereto. Accordingly, as applied to aSub-Association, the term
Owner as used in this Article shall be deemed to include the Sub-Association (even if it does not
hold legal title to its common areas and common elements) and the terms Plat Parcel, Tract and
Unit shall be deemed to include aSub-Association's common areas and common elements and
all improvements thereto. Any costs of remedial work or surcharge thereon applicable to a Sub-
Association shall be paid directly by the Sub-Association, failing which the Master Association
may, in addition to all other available legal and equitable remedies, withhold the amount of same
from amounts collected on behalf of the Sub-Association, if any, and the Master Association is
hereby granted a lien on such amounts for such purposes. Notwithstanding the foregoing,
nothing contained in this Declaration shall be deemed to obligate the Master Association to act
as a collection agent for any Sub-Association or the Master Association.
Section 2. Exteriors of Units and Buildings. Each Owner shall maintain or cause to
be maintained all structures (including all Units and buildings) he owns in a neat, orderly and
attractive manner and consistent with the general appearance of the Property as determined by
the Board which may delegate that task to the ARB. The minimum (though not sole) standard
for the foregoing shall be consistency and compatibility with the general appearance of the
developed portions of the Community and, as to each Plat Parcel and/or Tract, the portion
thereof upon which the Unit is located including landscaping. Each Owner shall repaint, restain,
or refinish, as appropriate, the exterior portions of his Unit or building (with the same colors and
materials as initially used or approved by Declarant and/or the "ARB') as often as is necessary to
comply with the foregoing standards.
Section 3. Parcels and Tracts. Each Owner shall maintain the trees, shrubbery, grass
and other landscaping, landscape irrigation, and all parking, pedestrian, recreational and other
open areas, on his Tract and/or Plat Parcel in a neat, functioning orderly and attractive manner
and consistent with the general appearance of the developed portions of the Property. Each
Owner of a Tract and/or Plat Parcel shall maintain all lawns and landscaping thereon. The
minimum (though not sole) standard for the foregoing shall be the general appearance of the
Property (and the applicable portion thereof as aforesaid) as initially landscaped (such standard
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being subject to being automatically raised by virtue of the natural and orderly growth and
maturation of applicable landscaping, as properly trimmed and maintained).
The Board of Directors of shall have the power, but not the obligation, to adopt minimum
maintenance standards in connection with each Tract and Plat Parcel and Improvements located
thereon. Such standards shall be in addition to those obligations of Owners as stated in this
Article VI and may be changed from time to time by the Board of Directors, in its sole
discretion. Any minimum maintenance standards established pursuant to this Article VI need
not be recorded.
Section 4. Remedies for Noncompliance. In the event of the failure of an Owner to
maintain or cause to be maintained, his Unit, any building, Tract or Plat Parcel in accordance
with this Article, the Master Association or applicable Sub-Association (whichever at the time
has the power or duty to enforce this Article) shall have the right, but not the obligation, upon
five (5) days, prior written notice to the Owner at the address for such Owner last appearing in
the records of the Master Association, to enter upon the Owner's Tract, Plat Parcel or Unit and
perform such work as is necessary to bring the Tract, Plat Parcel or Unit, as applicable, into
compliance with the standards set forth in this Article and as may be determined by the Board of
Directors from time to time. The remedies provided for herein shall be cumulative with all other
remedies available under this Declaration, or other applicable covenants or deed restrictions
(including, without limitation, the imposition of fines or special assessments or the filing of legal
or equitable actions, the filing of liens for this work plus attorneys' fees and costs).
Section 5. Costs of Remedial Work; Surcharges. In the event that the Master
Association, or an applicable Sub-Association, performs any remedial work on a Unit, building,
Tract or Plat Parcel pursuant to this Declaration or any Supplemental Declaration, the costs and
expenses thereof shall be deemed an Individual Assessment under this Declaration and may be
immediately imposed by the Board of Directors or its designee. In order to discourage Owners
from abandoning certain duties hereunder for the purpose of requiring one of the aforesaid
entities to assume same, and, additionally, to reimburse same for administrative expenses
incurred, the applicable entity may impose a surcharge of not more than fifty percent (50%) of
the cost of the applicable remedial work (or the maximum amount permitted by applicable law,
whichever is less), such surcharge to be a part of the aforesaid Individual Assessment. No bids
need be obtained for any of the work performed pursuant to this Article and the person(s) or
company performing such work may be selected by the applicable enforcing entity in its sole
discretion without requirement of any bonds whether fidelity, labor, materials, payment or
performance. Every Owner agrees for himself and family members that they will hold harmless
the Master Association, its Officers, Directors, agents and employees from any action undertaken
pursuant to this Section.
Section 6. Right of EntrX. There is hereby created an easement in favor of the
Master Association and/or the applicable Sub-Association, as appropriate, and their applicable
designees, over each Tract and Plat Parcel for the purpose of entering onto the Tract and Plat
Parcel in the performance of the work herein described, provided that the notice requirements of
this Article are complied with and any such entry is during reasonable hours.
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ARTICLE VII
CERTAIN RESTRICTIONS, RULES AND REGULATIONS
Section 1. Applicability. The provisions of this Article shall be applicable to the
Property (or that portion thereof as may hereinafter be specified) and the use thereof but shall not
be applicable to the Declarant, the Parcel 2 Developer, or any of their respective designees, or
any Parcel, Tract, Plat Parcel, Unit or other property owned by Declarant, the Parcel2
Developer, or their respective designees.
If requested by any interested party, Declarant and/or Parcel 2 Developer, as applicable,
shall give a written statement as to whether any particular person or entity is exempt from the
provisions of this Article and to what property and for what period of time such exemption
applies. The party receiving such statement shall be entitled to rely thereon and such statement
shall be binding on Declarant and/or Parcel 2 Developer, as applicable, the Master Association,
all Sub-Associations and all other relevant persons and entities.
Section 2. Sub-Associations. All of the restrictions, requirements and obligations set
forth in this Article shall apply to all Sub-Associations, if and when such Sub-Associations come
into existence, and to their common areas, common elements (and all improvements thereto) and
their uses of all or any portions of the Property. Accordingly, as applied to aSub-Association,
the term Owner as used in this Article shall be deemed to include the Sub-Association (even if it
does not hold legal title to its common areas or common elements), the terms Plat Parcel, Tract
and Unit shall be deemed to include aSub-Association's common areas or common elements
(and all improvements thereto) and references to activities or practices of Owners shall be
deemed to include activities or practices of the Sub-Association (regardless of where same
occur).
Section 3. Land Use and Building Type. No Parcel, Plat Parcel, Tract or Unit shall
be used except for residential purposes. No building constructed on a Parcel or Tract shall be
used except for residential purposes, except for such ancillary or other commercial uses as
applicable zoning codes and other laws and ordinances may permit to be made of portions of
otherwise residential buildings. However, without limiting the generality of the foregoing
Section, temporary uses by Declarant and/or Parcel 2 Developer and their respective designees
for model homes, sales displays, parking lots, sales offices and other offices, or any one or any
combination of such uses, shall be permitted until permanent cessation of such uses takes place.
No changes may be made in buildings erected or approved by the Declarant and/or Parcel 2
Developer (except if such changes are made by the Declarant and/or Parcel 2 Developer, as
applicable) without the written consent of Declarant and/or Parcel 2 Developer, as applicable, the
ARB or its Sub-Association counterpart, as appropriate and as provided herein.
Section 4. Easements. Easements for installation and maintenance of utilities and
Community Systems are reserved as shown on the Plat and as provided herein. The area of each
Tract and Plat Parcel covered by an easement and all improvements in such easement area shall
be maintained continuously by the Owner of the Tract or Plat Parcel, except as provided herein
to the contrary and except for installations for which a public authority or utility company is
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responsible. In addition to those easements more particularly described in Article IV hereof, the
appropriate water and sewer authority, electric utility company, telephone company, the Master
Association, and the applicable Sub-Association shall have a perpetual easement for the
installation and maintenance, all underground, unless the ARB approves otherwise in writing, of
water lines, sanitary sewers, storm drains, and electric, telephone and Community Systems lines,
cables and conduits, under and through the utility easements as shown on the Plat and any other
plats or as may be created by separate written document recorded among the Public Records of
Palm Beach County, Florida.
Section 5. Nuisances. No immoral, noxious, offensive or unlawful activity shall be
carried on within the Community nor shall anything be done therein or thereon which may be or
become an annoyance to the Community or other Owners. No nuisance shall be permitted
within the Property nor shall any use or practice be permitted which is or becomes a source of
annoyance to the Owners or which interferes with the peaceful use and possession thereof by the
Owners. Additionally, nothing shall be done or maintained on any Plat Parcel, Tract or Unit,
upon any Maintenance Areas or upon the common areas or common elements of any Sub-
Association which will increase the rate of insurance on any Unit, the Maintenance Areas or
other portions of the Property, or result in the cancellation thereof, or which will be in violation
of any law, ordinance, statute, regulation, or rule of any governmental authority having
jurisdiction over the Property or portion thereof or in violation of any provision of this
Declaration, the Articles or Bylaws as they may be amended from time to time or in violation of
any rules and regulations which may be promulgated by the Board of Directors from time to
time, as elsewhere provided herein. No waste shall be committed upon any Plat Parcel, any
Tract, in any Unit, the Maintenance Areas or any other portion of the Property. Notwithstanding
the foregoing, each Owner hereby acknowledges that the ongoing maintenance activities by the
Master Association more particularly described in Article IV, Section 1 of this Declaration,
shall be deemed as not constituting a nuisance and such activities and the parties performing
them shall be specifically exempted from this provision.
Section 6. TemporarX Structures. No structure of a temporary character, or trailer,
mobile home or recreational vehicle, shall be permitted on any Plat Parcels or Tracts within the
Community at any time or used at any time as a residence, either temporarily or permanently,
except by the Declarant or any designee of Declarant so long as Declarant or its designee owns
one Plat Parcel, Tract or Unit. No gas tank, gas container or gas cylinder shall be permitted to be
placed on or about the outside of any Unit or on or about any ancillary building, however,
underground propane tanks shall be permitted with prior written approval of the ARB. The
foregoing restrictions on gas tanks, gas containers and gas cylinders shall not apply to service
stations or similar facilities or any other lawful commercial uses, however, such uses are subject
to approval of Declarant and the Master Association.
Section 7. Suns and Flags. No sign of any kind shall be displayed to the public view
on or from any Plat Parcel or Tract, except signs on models displayed by Declarant or its
designees, or alarm company signs not exceeding - by and located within (_)
feet of any entrance to a Plat Parcel or Tract. No sign of any kind shall be permitted to be placed
inside a Unit which is visible outside the Unit or on the outside walls of such Unit nor on any
fences within residential portions of the Property, nor on the Maintenance Areas, nor on
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dedicated areas, nor on entryways, nor on any vehicles within the Property, except such as are
placed by the Declarant or Parcel 2 Developer or another person or entity authorized in writing
by Declarant and/or Parcel 2 Developer to do so. Without limiting the generality of any other
Article hereof, in the event that similar requirements of aSub-Association or the County are
more restrictive than those set forth herein, such more restrictive requirements shall supersede
and control. No sign for the resale, lease or other transfer of a Plat Parcel, Tract or Unit shall be
permitted within the Property nor shall any sign be displayed on, upon, or within any motor
vehicle.
The foregoing restrictions on signs shall not apply to signs erected by Declarant or its
designees. In addition, any subsequent modification, replacement or removal of such sign by
Declarant, and/or Parcel 2 Developer or their respective designees shall not be subject to any
approval by the Master Association, the ARB any Sub-Association or any Owner. To the extent
signs are originally permitted by Declarant or the ARB to be erected on the Property, such
permission is subject to subsequent modification to permit additional or different signage.
Section 8. Oil and Mining Operation. No oil drilling, oil development operations, oil
refining, quarrying or mining operations of any kind shall be permitted upon or within the
Property, nor on dedicated areas, nor shall oil wells, tanks, tunnels, mineral excavations or shafts
be permitted upon or within the Property. No derrick or other structure designed for use in
boring for oil or natural gas shall be erected, maintained or permitted upon any portion of the
land subject to this Declaration. Such oil or other storage tanks shall be subject to the
architectural design standards and approvals as set forth elsewhere in this Declaration and as
otherwise required by applicable law, rule or regulation.
Section 9. Pets. No more than two (2) household pets (as may be defined and re-
defined by the condominium association) shall be maintained in any Unit or any limited common
element appurtenant thereto. The maximum total weight of any such household pets shall be
limited to an aggregate of thirty-five (35) pounds. Notwithstanding the foregoing, the maximum
total weight for any one household pet may not exceed twenty-five (25) pounds. Household pets
shall not be kept, bred or maintained for any commercial purpose and shall not become a
nuisance or annoyance to neighbors. Those pets which, in the sole discretion of the applicable
condominium association or Master Association, endanger health, safety, have the propensity for
dangerous or vicious behavior (such as pit bulldogs or other similar breeds or mixed breeds),
make objectionable noise, or constitute a nuisance or inconvenience to the Owners of other Units
or to the owner of any other portion of any condominium shall be removed upon request of the
applicable condominium association, Board or the Master Association. Unit Owners must pick
up all solid wastes of their pets and dispose of such wastes appropriately. All pets (including
cats) must be kept on a leash of a length that affords reasonable control over the pet at all times,
or must be carried, when outside the Unit. No pet may be kept on a balcony or terrace when its
owner is not in the Unit. Without limiting the generality of the applicable declaration of
condominium, any violation of the provisions of this restriction shall entitle the applicable
condominium association to all of its rights and remedies, including, but not limited to, the right
to fine Unit Owners (as provided in any applicable rules and regulations) and/or to require any
pet to be permanently removed from the applicable condominium property and association
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property. Compliance with this restriction shall not necessarily establish compliance with rules
prohibiting nuisances.
Obnoxious animals, fowl or reptiles shall not be kept or permitted to be kept in any Unit.
The determination of what is or what may be an obnoxious animal, fowl or reptile shall be
determined by the Board of Directors, in their sole discretion.
Section 10. Visibility at Intersections. No Owner, its guests, lessees, and invitees may
cause or permit obstructions to visibility at street intersections or Maintenance Area
intersections.
Section 11. Boats, Trailers, Campers and Commercial Trucks. Restrictions, if any, on
boats, trailers, campers and commercial trucks (particularly as to the parking or storage thereof)
shall be imposed and enforced by the applicable Sub-Associations. Parking shall be permitted
only in Unit garages, driveways and other designated parking areas within the Community. No
vehicle shall be parked so as to obstruct or otherwise impede ingress or egress to any driveway
or roadway. Parking in the Community shall be restricted to private automobiles and passenger-
type vans, jeeps, pick-up trucks, and sport utility vehicles, motorcycles, motor scooters (all of
which are collectively referred to herein as "vehicles"). No trailer, camper, motor home or
recreational vehicle shall be used as a residence, either temporarily or permanently, or parked in
the Community. No more than two (2) vehicles per unit are permitted to be kept in the driveway.
No vehicle is permitted on the Property which leaks oil, brake fluid, transmission fluid or other
fluids. No Owner, occupant or other person shall conduct repairs or restorations on any motor
vehicle, or other vehicle, or race the engine of any vehicle, upon any portion of the Community.
No person shall park, store or keep on any portion of the Community any large type commercial
type vehicle (for example, dump truck, motor home, trailer, cement mixer truck, oil or gas truck,
delivery truck), nor may any person keep any other vehicle in the Community which is deemed
to be a nuisance by the Board, including, but not limited to, any motorcycle or motor scooter,
particularly where such vehicle is operated in the early morning or late evening hours. For
purposes of this section, "commercial vehicles" shall mean those which are not designed and
used for customary, personal/family purposes. The absence of commercial-type lettering or
graphics on a vehicle shall not be dispositive of whether it is a commercial vehicle. However,
any vehicle containing commercial-type lettering or graphics shall be deemed to be a commercial
vehicle. Visitor parking areas may be available to Unit Owners, occupants, and their guests and
invitees, on designated portions of the Maintenance Areas. Owners and occupants shall be
responsible for removing their vehicles and other property from their driveways upon the
issuance of a tropical storm or hurricane warning.
The prohibitions on parking contained in this section shall not apply to temporary parking
of: (a) commercial vehicles, such as for construction use or providing pick-up and delivery and
other commercial services; (b) any vehicles of the Declarant and/or Parcel 2 Developer or their
respective affiliates or designees, used for construction, maintenance, repair, decorating, sales or
marketing purposes; or (c) service vehicles operated in connection with the Master Association,
or its management companies.
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Subject to applicable laws and ordinances, any vehicles, boat, motorcycle or trailer
parking in violation of these or other restrictions contained herein or in the Declaration, may be
towed by the Master Association in the sole expense of the owner of such vehicle. The Master
Association shall not be liable to the owner of such vehicle for trespass, conversion or otherwise,
nor shall it be guilty of any criminal act, by reason of such towing and once the notice is posted,
neither its removal, nor failure of the Owner to receive it for any reason, shall be grounds for
relief of any kind. An affidavit of the person posting the aforesaid notice stating that it was
properly posted shall be conclusive evidence of proper posting.
Section 12. Garbage and Trash Disposal. No garbage, refuse, trash or rubbish shall be
deposited except as permitted by the Master Association. The requirements from time to time of
the applicable governmental authority, trash collection company or the Master Association
(which may, but shall not be required to provide solid waste removal services) for disposal or
collection of waste shall be complied with by Owners and their guests or invitees. All equipment
for the storage or disposal of such materials shall be kept in a clean and sanitary condition. All
solid waste shall be placed in containers which shall comply with the standards adopted by the
Master Association (or the ARB) for such containers. The ARB in its sole discretion may
designate a standard style and type for containers. Garbage and trash to be removed must be
placed at curbside or other designated location no earlier than 6:00 p.m. the evening before
collection and such containers must be removed from the designated pickup location as soon
after the pickup as is practicable, but in no event by later than 6:00 p.m. on the day of collection.
Section 13. No Drying. No portion of the Property other than inside a Unit and not
visible from the exterior shall be used as a drying or hanging area for laundry of any kind.
Section 14. Unit Air Conditioners and Reflective Materials. No air conditioning units
may be mounted through windows or walls. No building shall have any aluminum foil placed in
any window or glass door or any reflective substance or other materials (except standard window
treatments) placed on any glass, except such as may be approved by the ARB or its equivalent
for energy conservation purposes.
Section 15. Renewable Resource Devices. Nothing in this Declaration shall be
deemed to prohibit the installation of energy devices based on renewable resources (e.g., solar
collector panels); provided, however, that same shall be installed only in accordance with the
standards adopted from time to time by the ARB and its Sub-Association counterpart. Such
standards shall be reasonably calculated to maintain the aesthetic integrity of the Property.
Section 16. Trees, Shrubs and Artificial Ve etation. No tree or shrub may be cut
down, destroyed or removed from a Plat Parcel, Tract, Unit or Sub-Association common area or
common element without the prior, express written consent of the ARB. No artificial grass,
plants or other artificial vegetation, or statues, sculpture, or sculptural landscape decor, shall be
placed or maintained upon the exterior portion of any Plat Parcel, Tract or Unit without the
aforesaid ARB consent. In the event any tree, shrub or any other vegetation is destroyed by
winds, fire, frost, freeze or other natural or artificial action, the Owner of the Plat Parcel, Tract or
Unit upon which such tree, shrub or vegetation is located shall be responsible to replace the same
with trees of similar type and kind with the prior consent of the ARB.
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Section 17. Exterior Lighting and Skylights. All exterior lighting and skylights shall
be subject to prior approval by the ARB.
Section 18. Fences and Walls. The composition, location, color, design, structure and
height of any fence or wall to be constructed on any Plat Parcel or Tract is subject to the written
approval of the AIZB. The ARB shall, among other things, require that the composition of any
fence or wall be consistent with the material used in the surrounding buildings and other fences,
if any.
Section 19. Mailboxes. No mailbox, newspaper box or rack or other receptacle of any
kind for use in the delivery of mail, newspapers, magazines or similar material shall be erected
on any Plat Parcel or Tract without the approval of the ARB as to style, size, color, installation
and location. The ARB, in its sole discretion, may designate a standard style and type of
mailbox. If and when the United States Postal Service or the newspaper or newspapers involved
shall indicate a willingness to make delivery to wall receptacles attached to Units, each Owner,
on the request of the ARB, shall replace the boxes or receptacles previously employed for such
purpose or purposes with wall receptacles attached to dwellings.
Section 20. Utility Connections. Permanent building connections for all utilities
installed after the date hereof, including, but not limited to, water, sewer, gas, electricity,
telephone, cable and television, shall be run underground from the proper connecting points to
the building structure in such a manner to be acceptable to the governing utility authority. The
foregoing shall not apply, however, to transmission lines, transformers and other equipment
installed by public utility companies or as part of the Community Systems.
Section 21. Construction Scheduling. Other than construction by Declarant and
Parcel2 Developer, no outdoor construction or development activity of any kind will be
permitted within the Property on Sundays or legal holidays without the express prior written
consent of the Master Association or the ARB. The ARB may, in its sole discretion establish
hours within which construction may be performed.
Section 22. Off-Street Motor Vehicles. No motorized or battery powered vehicles
may be operated on paved roadways and drives except as specifically approved in writing by the
Master Association. "All Terrain Vehicles" ("ATV's") are prohibited from being kept, used or
driven on any portion of the Property. Off-Street Motor Vehicles operated by the Master
Association or its contractors, subcontractors or designees, are exempted from this Section. All
motorized vehicles operated on the Property, whether on or off paved roadways and drives, must
be operated by a driver with a current valid driver's license and such driver must have
comprehensive liability insurance covering such vehicle in an amount to be determined from
time to time by the Master Association. The Master Association may request the owner of the
vehicle to provide proof of such liability insurance in a form reasonably satisfactory to the
Master Association.
Section 23. Storage and Meter Areas. All storage areas of any kind upon any Plat
Parcel or Tract, and all meters and similar areas located upon any such Plat Parcel or Tract, shall
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be completely screened from view from the exterior of the Plat Parcel or Tract by a wall, fence
or mature landscaping material in a manner acceptable to the ARB.
Section 24. Bicycle Storage. Bicycles and similar devices shall be stored only within
Units. In the event bicycles or similar devices are left on the Maintenance Areas, they may be
impounded by the Master Association and shall be released to the Owner only upon payment of
an administrative fee established by the Master Association. Such an administrative fee shall be
an Individual Assessment enforceable pursuant to the procedures set forth in Article V of this
Declaration. The Declarant and the Maintenance Association shall have the right but not the
obligation, to impound and store bicycles or similar devices and after sixty (60) days of storage
dispose of same. Declarant, the Maintenance Association, their respective employees, officers,
directors and designees shall have no liability for damage to or loss of bicycles while impounded
or in the event of disposal of bicycles or similar devices.
Section 25. Auction Prohibition. No Plat Parcel, Tract, Unit, Improvements thereon or
any interest therein shall be sold, marketed or conveyed by auction, nor shall auctions of real or
personal property or interests in real or personal property be conducted within the Property.
Garage sales or other similar sales are prohibited from being conducted on any Plat Parcel, Tract,
Unit, Maintenance Areas, Sub-Association common areas or common elements.
Section 26. Garages. Garages shall only be used for the storage of automobiles, golf
carts, and other uses authorized herein and shall not be permanently enclosed or converted to
other uses. All garages shall be equipped with fully operational automatic garage door openers
activated by a remote control garage door opener and all garage doors must be closed, except
when vehicles are entering or exiting from the garage. Each Owner shall be responsible for
maintaining his own garage door opener in good working order at all times at the Owner's sole
cost and expense.
Section 27. Noise. No Owner shall knowingly or willfully make, create or allow to be
made or created by his guests, lessees or invitees, any unnecessary, excessive or offensive noise
or disturbance which destroys or interferes with the peace, quiet, and/or comfort of the Owners
or other residents of the Property
Section 28. Hazardous Waste. No flammable, toxic or hazardous substance of any
type may be stored or kept on any Plat Parcel, Tract or Unit or discharged therefrom by an
Owner in violation of any law, rule or regulation. Each Owner hereby indemnifies and holds
harmless the Declarant, its partners, officers, directors, employees, agents and affiliates, and the
Master Association, its Officers, Directors, employees and agents from and against any and all
claims, damages or losses of any kind that may be imposed upon or asserted against them arising
out of or from any hazardous substance kept, stored or used upon any Plat Parcel, Tract or Unit.
This indemnification shall survive the sale by an Owner of his Plat Parcel, Tract or Unit.
Section 29. Hunting. Hunting by firearm, bow and arrow, or in any other manner shall
be and is expressly prohibited on or within the Property or any portion there of.
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Section 30. Additional Use Restrictions. The Board of Directors may adopt such
additional use restrictions, rules or regulations, applicable to all or any portion or portions of the
Property and to waive or modify application of the foregoing use restrictions with respect to any
Plat Parcel(s), Tract(s) or Unit(s), as the Board, in its sole discretion deems appropriate. A
waiver or lack of enforcement of one or more restrictions shall not be construed as a waiver of all
similar restrictions in future situations. The Master Association shall have full enforcement
rights notwithstanding any prior waiver. Any additional restrictions need not be recorded among
the Public Records of Palm Beach County, Florida.
ARTICLE VIII
COMPLIANCE AND ENFORCEMENT
Section 1. Compliance by Owners. Every Owner and Sub-Association, and his/its
tenants, guests, invitees, officers, employees, contractors, subcontractors and agents shall comply
with any and all rules and regulations adopted by the Master Association as contemplated herein
as well as the covenants, conditions and restrictions of this Declaration, as they may be amended
from time to time.
Section 2. Enforcement. Failure to comply with this Declaration and/or any of such
rules or regulations shall be grounds for immediate action by the Association which may include,
without limitation, an action to recover sums due for damages, injunctive relief or any
combination thereof.
Section 3. Fines. In addition to all other remedies, and to the maximum extent
lawful, in the sole discretion of the Board of Directors, a fine or fines may be imposed upon an
Owner or Sub-Association for failure of an Owner, Sub-Association or any of the other parties
described hereinabove, to comply with their obligations under this Declaration or with any rule
or regulation of the Master Association, provided the procedures set forth in the Bylaws are
adhered to.
Section 4. Application of Fines. All monies received from fines shall be allocated as
directed by the Board of Directors.
Section 5. Non-exclusive Remedy. Fines as provided herein and in the Bylaws shall
not be construed to be an exclusive remedy of the Master Association, and shall exist in addition
to all other rights and remedies to which the Master Association may be otherwise legally
entitled. A fine levied by the Master Association pursuant to this Section and the Bylaws may
not become a lien against an Owner's Unit or aSub-Association's common areas or common
elements.
ARTICLE IX
ARCHITECTURAL AND DEVELOPMENT REVIEW; GENERAL POWERS
The following provisions of this Article are subject to those of the immediately
succeeding Article hereof.
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Section 1. Members of ARB. The Architectural and Development Review Board of
the Master Association, (sometimes referred to in this Declaration as the "ARB"), shall consist of
three (3) members. The initial members shall be designated by Declarant. Each of the initial
members designated by Declarant and Parcel 2 Developer shall hold office until all Units and
Improvements planned for the Property have been constructed and conveyed (if appropriate), or
sooner at the option of Declarant. Declarant and Parcel 2 Developer shall have the right to
remove and replace the respective ARB members appointed by it at any time and from time to
time. Thereafter, each new member of the ARB shall be appointed by the Board of Directors.
Each member of the ARB shall hold office until such time as such member has resigned or has
been removed or a successor has been appointed, as provided herein. Members of the ARB may
be removed at any time without cause, subject to the rights of the Declarant and Parcel2
Developer as aforesaid. The Declarant and Parcel 2 Developer or the Board, after Declarant and
Parcel 2 Developer are no longer Members of the Master Association, shall have the right, in its
sole discretion, to appoint or hire professional consultants to the ARB. Such consultants may
include, but not be limited to, architects, engineers, landscape engineers and other design
professionals.
The members of the ARB may, at the discretion of the Board of Directors, be
compensated for their services in which event such compensation shall be a General Expense of
the Master Association. The ARB may, with the approval of the Board of Directors as to
amounts, require the payment of anon-refundable filing fee as a condition to the consideration of
any matter presented to it, such fees to be applied to the compensation of the ARB members and
other expenses of the ARB (including, without limitation, overhead, development review,
enforcement and other Master Association expenses reasonably allocable to the ARB).
In addition to the power and duties set forth hereinbelow, the ARB shall have the right
and duty to enforce such development review, architectural control, maintenance and other
requirements and restrictions imposed on any portion of the Property by Declarant and/or
Parcel 2 Developer, as applicable (by way of specific deed restrictions or contract) as Declarant
and/or Parcel 2 Developer, as applicable, shall, in their respective sole discretion, if at all, elects
to have it enforce (subject at all times to Declarant's and/or Parcel 2 Developer's right to modify
or revoke such right and duty). Such election may be made by Declarant and/or Parcel 2
Developer in the applicable deed restrictions or by way of an exclusive or non-exclusive
assignment of Declarant's and Parcel 2 Developer's rights to enforce same. Further, Declarant
and/or Parcel 2 Developer, as applicable, may provide for specific criteria and procedures to be
used by the ARB in such regard (subject to later modification), absent such provision the ARB
shall proceed in the manner set forth in this Article. Unless otherwise specifically provided by
the Declarant and/or Parcel 2 Developer, as applicable, in the applicable instrument, the rights
and duties of the ARB shall not be delegable to aSub-Association.
Section 2. Construction Compliance Deposit. The Owner or builder of any Units,
addition, pool or other Improvements to a Plat Parcel or Tract will be required to deliver to the
Master Association a deposit in an amount established by the Board from time to time. Such
deposit shall be delivered prior to or along with any plans and specifications submitted to the
ARB for approval. The deposit shall be held by the Master Association to ensure compliance by
the Owner and/or builder with all provisions of this Declaration, standards of the ARB and all
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rules and regulations promulgated by the Master Association or ARB pursuant to this
Declaration.
The Master Association shall cause the deposit to be placed in a separate escrow account,
and interest earned thereon, if any, shall accrue to the benefit of the Master Association.
The Master Association shall give the Owner and/or builder written notice of any failure
to comply with the provisions, standards, rules, or regulations described above. If the Owner
and/or builder does not cure the problem within five (5) days of the date of the notice, the Master
Association may, but is not obligated to take corrective measures as it deems appropriate in its
sole discretion. The cost of any such corrective measures shall be deducted from the deposit.
The Owner and/or builder shall promptly pay to the Master Association any amount so paid out,
so that the full deposit is held by the Master Association at all times. In the event the deposit is
insufficient to cover the cost of such corrective action, the Owner and/or builder shall pay to the
Master Association any balance to cover the full cost of the corrective action. Upon completion
of the construction, the Owner and/or builder may apply to the Master Association for a refund
of the deposit. The Master Association may establish policies regarding such deposits providing
for retention of a percentage to defray administrative costs.
Section 3. Review of Proposed Construction. Subject to other applicable Sections
below, no building, fence, wall or other structure or improvement (including, but not limited to,
landscaping or other improvements or changes thereto of any kind) shall be commenced, altered,
removed, painted, erected or maintained on the Property nor shall any addition, removal, change
or alteration (including paint or exterior finishing) visible from the exterior of any Unit be made,
nor shall any awning, canopy or shutter be attached to or placed upon outside walls or roofs of
buildings or other Improvements, until the plans and specifications showing the nature, kind,
shape, height, materials and location of the same shall have been submitted to, and approved in
writing by, the ARB (after first having been approved by aSub-Association or architectural
control committee thereof, if any, and if required by the ARB, which requirement may be
imposed after the initial submission for approval). The requirements and procedures of this
Article shall also apply to common areas, and common elements of Sub-Associations. The ARB
shall approve proposals or plans and specifications submitted for its approval only if it deems
that the construction, alteration, removal or addition contemplated thereby in the location(s)
indicated will not be detrimental to the appearance of the Community as a whole, and that the
appearance of any structure affected thereby will be in harmony with the surrounding structures
and is otherwise desirable. If the proposed construction, alteration, removal or addition is to
common elements or common areas of a Sub Association, said approval shall also be subject to
the prior approval of the applicable Sub-Association. The ARB may condition its approval of
proposals and plans and specifications as it deems appropriate, and may require submission of
additional plans and specifications or other information prior to approving or disapproving
material submitted. The ARB may also issue rules or guidelines setting forth procedures for the
submission of plans for approval. The ARB may require such detail in plans and specifications
submitted for its review as it deems proper, including, without limitation, floor plans, site plans,
drainage plans, elevation drawings, landscape and landscape irrigation plans and specifications,
and descriptions or samples of exterior materials and colors. Until receipt by the ARB of all
required plans and specifications, the ARB may postpone review of any plans submitted for
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approval. Upon such receipt, the ARB shall have thirty (30) days in which to accept or reject
any proposed plans or request modifications to such plans and, if the ARB does not reject or
request modifications to same within such period, said plans shall be deemed approved as
submitted. The decision of the ARB shall take precedence over any architectural review boards
of Sub-Associations, if any.
All changes and alterations of Owners' Units and landscaping and other Improvements
whether structural, color, style or otherwise, shall also be subject to all applicable permit
requirements and to all applicable governmental laws, statutes, ordinances, rules, regulations,
orders and decrees. ARB written approval of any changes and alterations must be obtained prior
to application to any governmental authority.
The provisions of this Article shall apply not only to Plat Parcels, Tracts and Units, but
also to common areas or common elements of Sub-Associations.
All construction on the Property, with the exception of construction by Declarant, and
Parcel 2 Developer, shall be subject to such rules, regulations, design and construction standards,
and setback and building requirements as may be promulgated by the Board and/or ARB from
time to time.
Section 4. Meetings of the ARB. The ARB shall meet from time to time as
necessary to perform its duties hereunder. The ARB may from time to time, by resolution
unanimously adopted in writing, designate an ARB representative (who may, but need not, be
one of its members) to take any action or perform any duties for and on behalf of the ARB,
except the granting of variances as hereinbelow provided. In the absence of such designation,
the vote of a majority of members of the ARB shall constitute an act of the ARB.
Section 5. No Waiver of Future Ap royals. The approval of the ARB of any
proposals or plans and specifications or drawings for any work done or proposed, or in
connection with any other matter requiring the approval and consent of the ARB, shall not be
deemed to constitute a waiver of any right to withhold approval or consent as to any similar
proposals, plans and specifications, drawings or matters whatsoever subsequently or additionally
submitted for approval or consent.
Section 6. Inspection of Work. Inspection of work and correction of defects therein
shall proceed as follows:
A. Upon the completion of any work for which approved plans are required
under this Article, the applicant (who may be an Owner or an appropriate Sub-Association) for
such approval (the "Applicant") shall give written notice of completion to the ARB;
B. Within fifteen (15) days thereafter, the ARB or its duly authorized
representative may inspect such improvement. If the ARB finds that such work was not effected
in substantial compliance with the approved plans, it shall notify the Applicant in writing of such
noncompliance within such fifteen (15) day period, specifying the particulars of noncompliance,
and shall require the Applicant to remedy the same;
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C. If, upon the expiration of thirty (30) days from the date of such notification,
the Applicant shall have failed to remedy such noncompliance, the ARB shall notify the Board in
writing of such failure. The Board shall then determine whether there is a noncompliance and, if
so, the nature thereof and the estimated cost of correcting or removing the same. If a
noncompliance exists, the Applicant shall remedy or remove the same within a period of not
more than thirty (30) days from the date of announcement of the Board ruling. If the Applicant
does not comply with the Board ruling within such period, the Board, at its option, may authorize
the improvement as it is, remove the non-complying improvement or remedy the noncompliance,
or pursue any other remedies available to it under this Declaration and at law and in equity and
the Applicant shall reimburse the Master Association, upon demand, for all expenses incurred in
connection therewith, plus an administrative charge to be determined by the Master Association.
If such expenses are not promptly repaid by the Applicant to the Master Association, the Board
shall levy an Individual Assessment against such Applicant and his Plat Parcel, Tract or Unit for
reimbursement. In the event said Applicant is aSub-Association, the aforementioned Individual
Assessment shall be levied against all Units in the Sub-Association in proportion to their
respective share of the common expense of said Sub-Association; and
D. If for any reason the ARB fails to notify the Applicant of any noncompliance
within sixty (60) days after receipt of said written notice of completion from the Applicant, the
improvement shall be deemed to have been made in accordance with said approved plans, unless
such failure to notify is due to excusable neglect, or would create a hardship on other Owners as
determined by the ARB.
E. In addition to, and not in lieu of, any other remedies provided to the ARB in
this Article, the ARB shall have the right to seek injunctive and other relief for the temporary and
permanent suspension of activities in violation of the requirements of this Article. After proper
notice to the party in violation and opportunity to cure, the ARB may, in its sole discretion file
such lawsuits and other judicial and administrative proceedings seeking to enforce the remedies
granted in this subsection and elsewhere stated in this Declaration.
Section 7. Non-Liability of ARB Members. Neither the ARB nor any member
thereof, nor its duly authorized representative, shall be liable to the Master Association, any Sub-
Association, or to any Owner or any other person or entity for any loss, damage or injury arising
out of or in any way connected with the performance or non-performance of the ARB's duties
hereunder. The ARB shall review and approve or disapprove all plans submitted to it for any
proposed improvement, alteration or addition solely on the basis of aesthetic considerations and
the benefit or detriment which would result to the immediate vicinity and to the Community.
The ARB shall take into consideration the aesthetic aspects of the architectural designs,
placement of buildings, landscaping, color schemes, exterior finishes and materials and/or some
of the procedures set forth herein and, without limiting the generality of other applicable
provisions hereof, may alter the procedures set forth herein as to any such applicant.
Section 8. Sub-Associations. Notwithstanding any exercise of any development
review/architectural control functions as to Plat Parcels, Tracts and Units by aSub-Association
pursuant to a delegation made by the Master Association, the ARB shall exercise, and every Sub-
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Association shall be bound by, the provisions, requirements and procedures of this Article, which
shall at all times apply to all Sub-Associations and their common areas or common elements.
Section 9. General Powers of the Master Association. The Master Association (and
the ARB, as appropriate) shall have the absolute power to veto any action taken or contemplated
to be taken by any Owner or by aSub-Association, and the Master Association shall have the
absolute power to require specific action to be taken by any Owner or by the Sub-Association in
connection with applicable sections of the Property. Without limiting the generality of the
foregoing, the Master Association (and the ARB, as appropriate) may veto or disapprove any
decision of any Owner or by any Sub-Association (or development review board or other
committee thereof), and the Master Association may require specific maintenance or repairs or
aesthetic changes to be effected, require that a proposed budget of aSub-Association include
certain items and that expenditures be made therefor, veto or cancel any contract providing for
maintenance, repair or replacement of the property governed by such Sub-Association and
otherwise require or veto any other action as the Master Association deems appropriate from
time to time. The Master Association shall not be liable to any Sub-Association or any Owner
by virtue of any exercise of the Master Association of its rights pursuant to this Declaration.
Section 10. Exceptions from ARB Control. Notwithstanding the foregoing Sections of
this Article, the ARB shall not have jurisdiction over, and the requirements contained in this
Article shall not apply to, the Declarant, the Parcel2 Developer or any parties as may be
designated by Declarant or the Parcel 2 Developer.
Section 11. Declarant Approvals. Notwithstanding the foregoing provisions or
anything else to the contrary mentioned in this Declaration, any approval by the Declarant
concerning proposed construction, development, structures, improvements, modifications or
alterations, shall be deemed to satisfy the requirements of this Article IX and shall be given the
full weight and authority of an approval of the Architectural and Development Review Board
pursuant to this Article IX.
ARTICLE X
MASTER ASSOCIATION: SUB-ASSOCIATIONS, DECLARANT AND PARCEL 2
DEVELOPER
Section 1. Preamble. In order to ensure the orderly development, operation and
maintenance of the Property and the properties subject to the potential administration of Sub-
Associations as integrated parts of the Property, this Article has been promulgated for the
purpose o£ (A) giving the Master Association certain powers to effectuate such goal, (B)
providing for intended (but not guaranteed) economies of scale, and (C) establishing the
framework of the mechanism through which the foregoing may be accomplished.
Section 2. Cumulative Effect: Conflict. The covenants, restrictions and provisions of
this Declaration shall be cumulative with those of the Declarations for the Sub-Associations, if
any, provided, however, that in the event of conflict between or among any such covenants,
restrictions and provisions, or any Articles of Incorporation, Bylaws, rules and regulations,
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policies or practices adopted or carried out pursuant thereto, those of the Sub-Association shall
be subject and subordinate to this Declaration. The foregoing priorities shall apply, but not be
limited to, the liens for assessments created in favor of the Master Association and the Sub-
Associations (as provided elsewhere herein).
Section 3. Development Review, Maintenance and Use Restrictions. The Master
Association (through the ARB) shall exercise the architectural control/development review
functions reserved herein, subject to the development review and approval rights of the Declarant
and the Parcel2 Developer. Further, the ARB shall carry out the functions provided to be
carried out by it hereunder, notwithstanding the fact that aSub-Association does likewise within
its jurisdiction; provided, however, that in such case (i) any submission to the ARB need be
accompanied by the approval of the subject matter thereof by the applicable Sub-Association (so
that the ARB need not consider any submission to it prior to the approval of such submissions by
all lower applicable associations which have a right of such approval, (ii) the review period of
such a submission shall be shortened to thirty (30) days and (iii) a disapproval of the ARB shall
supersede and control over an approval of a lower association.
Each of the Master Association and Sub-Associations shall have the power to enforce
their own respective use restrictions, provided that in the event of conflict, the more stringent
restrictions shall control and provided further that if aSub-Association fails to enforce its
respective restrictions, the Master Association shall have the absolute right, but not the
obligation, to do so and to allocate the cost thereof to the applicable Sub-Association which shall
promptly pay for same or reimburse the Master Association.
Section 4. Delegation of Other Duties. The Master Association shall have the right,
but not the obligation, to delegate to aSub-Association(s) on an exclusive or non-exclusive basis,
such duties as the Master Association shall deem appropriate. Such delegations shall be made by
written notice to the Sub-Association, which shall be effective no earlier than thirty (30) days
from the date such notice is given. Any delegation made pursuant hereto may be modified or
revoked by the Master Association at any time.
Section 5. Acceptance of Delegated Duties. Whenever the Master Association
delegates any duty to aSub-Association pursuant hereto, the Sub-Association shall be deemed to
have automatically accepted same and to have agreed to indemnify, defend and hold harmless
the Master Association for all liabilities, losses, damages and expenses (including attorneys, fees
actually incurred and court .costs, through all appellate levels) arising from or connected with the
Sub-Association's performance, non-performance or negligent performance thereof.
Section 6. Certain Reserved Functions of the Master Association. In the declaration
or similar instrument for any Sub-Association, the following powers, rights and duties (and all
remedies necessary and convenient to exercise or enforce same) are hereby reserved to the
Master Association and/or ARB, as appropriate whether or not so stated therein (unless
subsequently waived or delegated in a written instrument expressly intended to have such effect):
A. all restrictions, requirements, duties and procedures as to maintenance of
Units, Parcels and Tracts (including without limitation, maintenance, repair and replacement of
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Improvements within and upon Maintenance Areas) restrictions, rules and regulations and
development review as same apply to Sub-Associations, their common areas or common
elements and activities within the Property, Owners and their Plat Parcels, Tracts, Units and
activities within the Property (particularly, but without limitation, as to activities within the
Maintenance Areas); and
B. any and all provisions of this Declaration as to Owners and their Units,
Parcels and Tracts, and activities to the extent that aSub-Association is initially responsible
therefor but has failed to perform such responsibility.
As used in this Section, the term Owner shall include any family member, guest,
tenant, agent, invitee, licensee, contractor or subcontractor of an Owner. Any action taken by the
Master Association or the ARB pursuant to this Section shall not alter, waive or impair the
Master Association's or ARB's right to compel aSub-Association to take any action required of
it in the same or different instances. Further, in the event that aSub-Association fails to take any
action required of it hereunder, under its own declaration or pursuant to a delegation made
pursuant to this Article, the Master Association shall have the additional, non-exclusive remedy
of imposing a reasonable fine on such Sub-Association if such failure continues for more than
fifteen (15) days after notice is given by the Master Association.
ARTICLE XI
CONTROL OF ASSOCIATION
Section 1. Control of Maintenance Association. Upon the last of (a) the date the
Declarant turns over control of the Multicondominium Association, or (b) the HOA to the
respective Unit Owners thereof, the Parcell Members shall be designated by the
Multicondominium Association and HOA, if any, in accordance with a mechanism to be
determined between the Multicondominium Association and the HOA; and upon the date the
Parcel 2 Developer turns over control of the Condominium Association to the Unit Owners
thereof, the Parcel l Member shall be the Parcel l Condominium Association.
Section 2. Declarant and Parcell Developer Responsibili~. All Owners, their
assigns, guests, tenants and invitees do hereby acknowledge and agree that effective as of the
date each of Declarant and Parcel 2 Developer is no longer a Member of the Master Association,
Declarant and Parcel 2 Developer shall no longer have any responsibility, obligation, or liability
of any kind whatsoever with respect to the Property, the Community, the Master Association or
the maintenance and administration thereof, or any other matter relating directly or indirectly
thereto, it being intended that upon such date, Declarant and Parcel l Developer, respectively,
shall be relieved of all obligations, responsibilities and liabilities, including, but not limited to
those existing under this Declaration, the Articles and Bylaws, as they may be amended from
time to time. Notwithstanding the foregoing and anything else contained in this Declaration,
after such date, Declarant and Parcel l Developer shall continue to retain those rights, powers,
reservations, easements, estates and interests existing in favor of Declarant and Parcel l
Developer as described in this Declaration, the Articles and Bylaws and in any other document
or instrument granting, reserving or describing such Declarant and Parcel 2 Developer rights,
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powers reservations, estates and interests, unless and until the later of: Declarant and Parcel 2
Developer no longer own any Parcels, Tracts or Units within the Property or have expressly
terminated such rights, powers reservations, easements, estates or interests by written instrument
executed by Declarant and/or Parcel 2 Developer.
ARTICLE XII
TRANSFERS OF UNITS
Section 1. Notice to Master Association. Upon transfer of title or any interest therein
by an Owner it shall be the responsibility of such Owner to provide written notice of such
transfer to the Master Association or its designated agent, which notice will include, at
minimum, a copy of the recorded Deed or other instrument of conveyance of title or an interest
in title to the grantee, together with the mailing address, phone number and, if available, e-mail
address, of the grantee which shall, upon receipt by the Master Association, be entered into the
official records of the Master Association as the record address of the Owner of the Unit. The
Master Association assumes no responsibility or liability to investigate the Public Records of the
County or any other public or private records to determine the ownership of any Unit and it shall
be the continuing responsibility of the Owners to comply with the requirements of this Section,
and Owners and their grantees shall be jointly and severally liable for compliance herewith.
ARTICLE XIII
INSURANCE
Section 1. Insurance Coverages. The Master Association shall purchase and
maintain a policy of comprehensive general public liability insurance naming the Master
Association and Declarant as insureds. Coverage shall be in an amount to be determined from
time to time by the Board of Directors, in its sole discretion, but not less than Million
Dollars ($_,000,000.00) single coverage and combined coverage of not less than
Million Dollars ($_,000,000.00). Coverage shall include liability of the Master Association and
Declarant for bodily injury, death and property damage. Any such policy will provide that it
cannot be cancelled or substantially modified without at least thirty (30) days prior written notice
to the Master Association, Declarant and Parcel 2 Developer. Each Owner is responsible for
purchasing and maintaining a policy of comprehensive general public liability insurance
providing coverage for his Plat Parcel, Tract or Unit.
Section 2. Waiver of Subro ag tion. As to each policy of insurance maintained by the
Master Association which will not be voided or impaired thereby, the Master Association hereby
waives and releases all claims against the Board, the Owners, the Declarant, the Parcel2
Developer, and the officers, directors, agents and employees of each of the foregoing, with
respect to any loss covered by such insurance, whether or not caused by negligence of or breach
of any agreement by said persons, but only to the extent that insurance proceeds are received as
compensation for such loss.
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Section 3. Other Insurance Coverages. The Master Association shall maintain such
other insurance coverages, including, but not limited to, a policy of insurance or fidelity bond
naming the Master Association as the insured or as obligee to protect the Master Association
against the wrongful acts or omissions of any officer, director, trustee, agent or employee of the
Master Association and all of the persons who handle or are responsible for the handling of funds
of, or funds administered by the Master Association in such amounts and upon such terms as the
Board of Directors deems necessary. The Master Association may also obtain Workman's
Compensation Insurance and other liability insurance as it deems desirable insuring each Owner
and the Master Association and Board from liability in connection with the Maintenance Areas.
The premiums for all insurance coverages obtained by the Master Association shall be and are
hereby declared General Expenses and included in the Aggregate Assessments and Special
Assessments made against Owners and Units.
Section 4. Declarant and Parcel 2 Developer Named As Insureds. Whenever the
Master Association is required to purchase and maintain a policy of insurance or bond which
shall, according to the terms of this Article XIII, name Declarant and Parcel 2 Developer as
insureds, such obligation to name each of the foregoing as insureds shall cease as to each upon
the date that each no longer owns any portion of the Property.
ARTICLE XIV
GENERAL PROVISIONS
Section 1. Duration. The covenants and restrictions of this Declaration shall run with
and bind the Property, and shall inure to the benefit of and be enforceable by the Declarant, the
Parcel 2 Developer, the Master Association, any Sub-Association, the Owner of any land subject
to this Declaration and the ARB, and their respective legal representatives, heirs, successors and
assigns, for a term of fifty (50) years from the date this Declaration is recorded, after which time
said covenants shall be automatically extended for successive periods of ten (10) years each
unless an instrument signed by the then Owners of seventy-five percent (75%) of the Units in
each Sub-Association, and the mortgagees ofone-hundred percent (100%), of the Units agreeing
to revoke said covenants has been recorded in the Public Records of the County and Declarant
and the Parcel 2 Developer or their respective assigns has given its prior written consent thereto.
No such agreement to revoke shall be effective unless made and recorded three (3) years in
advance of the effective date of such agreement and unless written notice of the proposed
agreement is sent to every Owner at least ninety (90) days in advance of any action taken.
Section 2. Assignment. Any of the rights, powers, reservations, obligations,
easements, estates and interests reserved by, or granted to the Declarant and/or the Parcel 2
Developer or the Master Association may be assigned in whole or in part by Declarant, the
Parcel 2 Developer and the Master Association, as the case may be. Any such assignment shall
be in writing and recorded in the Public Records of the County. After such assignment, the
assignee shall have the same rights, powers, estates and interests and be subject to the same
obligations and duties as were the Declarant, the Parcel 2 Developer or the Master Association
prior to the assignment, and the Declarant and the Parcel2 Developer and, upon such
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assignment, Master Association shall be relieved and released of all obligations with respect to
such rights, powers, reservations, obligations, easements, estates or interests.
Section 3. Notice. Any notice required to be sent to any Member or Owner under the
provisions of this Declaration shall be deemed to have been properly sent when personally
delivered or mailed, postpaid, to the last known address of the person who appears as the Voting
Representative for that Parcel or the Owner of the applicable Unit on the records of the Master
Association at the time of such mailing. It shall be the duty of each Sub-Association to keep the
Master Association advised of the names and addresses of the Sub-Association's members and
any changes thereto.
Section 4. Enforcement. Enforcement of these covenants and restrictions shall be
accomplished by means of a proceeding at law or in equity against any person or persons
violating or attempting to violate any covenant or restriction, either to restrain violation or to
recover damages, and against the land to enforce any lien created by these covenants; and failure
of the Master Association, the Declarant, the Parcel 2 Developer, the ARB, any Sub-Association
or any Owner to enforce any covenant or restriction herein contained shall in no event be deemed
a waiver of the right to do so thereafter.
Section 5. Severability. Invalidation or unenforceability of any one of these
covenants or restrictions or any part, clause or word hereof, or the application thereof in specific
circumstances, by judgment or court order shall not affect any other provisions or applications in
other circumstances, all of which shall remain in full force and effect.
Section 6. Amendments.
A. Until the last of the date the Declarant turns over control of the
Multicondominium Association or the HOA to the Unit Owners thereof, this Declaration may
only be amended with the consent of Declarant and, until the date the Parcel 2 Developer turns
over control of the Condominium Association to the Unit Owners thereof, this Declaration may
only be amended with the consent of the Parcel 2 Developer.
After each of the foregoing dates and until such membership ceases, this
Declaration may only be amended with the consent of the entity designated as the Parcel 1
Member by the Multicondominium Association and HOA, if any, as to Parcel 1 and the consent
of the Condominium Association as to Parcel 2.
B. When the Declarant and Parcel 2 Developer are no longer Members of the
Master Association, a resolution adopting an amendment to this Declaration may be proposed by
either the Board of Directors of the Master Association acting upon a vote of the majority of the
directors, or by either of the two (2) Members of the Master Association, whether meeting as
Members or by instrument in writing signed by them.
C. The amendment or amendments proposed must be approved by an affirmative
vote of both Members for such amendment or amendments to be adopted. Any amendment to
this Declaration shall be effective at the time of recording the amendment or certificate of
amendment in the Public Records of the County.
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D. Such amendment or amendments to the Declaration shall be transcribed and
certified by the President and Secretary of the Master Association as having been duly adopted
and the original or executed copy of such amendment or amendments so certified and executed
with the same formalities as a deed shall be recorded in the Public Records of the County, such
amendment or amendments to specifically refer to the recording data identifying the Declaration.
Thereafter, a copy of said amendment or amendments in the form of which the same were placed
of record by the Officers of the Master Association shall be delivered or mailed to all Owners,
but delivery of a copy thereof shall not be a condition precedent to the effectiveness of such
amendment or amendments.
Notwithstanding anything to the contrary in this Declaration:
A. the Declarant and Parcel2 Developer, acting jointly, may execute and
record an amendment to this Declaration to correct scrivener's errors, and no amendment of this
Declaration shall abridge, modify, eliminate, prejudice, limit, amend or alter the rights of the
Declarant or Parcel 2 Developer as set forth in the Declaration without the prior written consent
of the Declarant or Parcel 2 Developer which may be withheld in the sole discretion of the
Declarant and Parcel 2 Developer.
B. any amendment proposed to this Declaration, the Articles of Incorporation
and/or Bylaws which would adversely affect the Surface Water Management System, including
environmental conservation areas, if any, shall require the written consent of the SFWMD,
which consent shall not be unreasonably withheld or delayed.
Section 7. Conflict. This Declaration shall take precedence over conflicting
provisions in the Articles and Bylaws of the Master Association and the Articles shall take
precedence over the Bylaws.
Section 8. Effective Date. This Declaration shall become effective upon its
recordation in the Public Records of the County.
Section 9. Captions. The captions used in this Declaration and exhibits attached
hereto, amendments thereof and supplements thereto are inserted solely as a matter of
convenience and shall not be relied upon or used in construing the text of this Declaration or any
exhibits hereto or amendments thereof and supplements thereto.
Section 10. Standards for Consent, Approval Completion and Other Action. Unless
otherwise expressly stated herein, whenever this Declaration shall require the consent,
substantial completion, or other action by the Declarant, the Parcel 2 Developer, the Master
Association or the ARB, such consent, approval or action may be withheld in the sole and
unfettered discretion of the party requested to give such consent or approval or take such action,
and all matters required to be completed or substantially completed by the Declarant, the Parcel 2
Developer, the Master Association or the ARB shall be deemed so completed or substantially
completed when such matters have been completed or substantially completed in the reasonable
opinion of the Declarant, the Parcel 2 Developer, the Master Association or ARB, as appropriate.
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For so long as Declarant and Parcel 2 Developer each own one Parcel, Plat Parcel, Tract,
Unit or other real property in the Community, no Declaration of any Sub-Association or
association other than the Master Association may be recorded in the Public Records of Palm
Beach County, Florida without the written consent and joinder of the Declarant and/or Parcel 2
Developer, as applicable, hereunder.
Section 11. Easements. Should the intended creation of any easement provided for in
this Declaration fail by reason of the fact that at the time of creation there may be no grantee in
being having the capacity to take and hold such easement, then any such grant or easement
deemed not to be so created shall nevertheless be considered as having been granted directly to
the Master Association as agent for such intended grantees for the purpose of allowing the
original party or parties to whom the easements were originally to have been granted the benefit
of such easement and the Owners hereby designate the Declarant, the Parcel 2 Developer and the
Master Association (or either of them) as their lawful attorney-in-fact to execute any instrument
on such Owners' behalf as may hereafter be required or deemed necessary for the purpose of
later creating such easement as it was intended to have been created herein. Formal language of
grant or reservation with respect to such easements, as appropriate, is hereby incorporated in the
easement provisions hereof to the extent not so recited in some or all of such provisions.
Section 12. Plats. In addition to this Declaration, the Property may be subject to
additional covenants, restrictions, reservations and other terms and provisions set forth in plats of
portions of the Property which are recorded or may be recorded in the Public Records of the
County.
Section 13. Notices and Disclaimers as to Community Systems. Declarant, Parcel 2
Developer, the Master Association, any Sub-Association, or their successors, assigns or
franchisees and any applicable cable or satellite television or telecommunications system
operator (an "Operator") may, but are not obligated to, enter into contracts for the provision of
alarm or monitoring services through any Community Systems. DECLARANT, PARCEL 2
DEVELOPER, THE MASTER ASSOCIATION, ALL SUB-ASSOCIATIONS AND THEIR
FRANCHISEES, AND ANY OPERATOR, DO NOT GUARANTEE OR WARRANT,
EXPRESSLY OR IMPLIEDLY, THE MERCHANTABILITY OR FITNESS FOR USE OF
ANY SUCH COMMUNITY SYSTEM OR SERVICES, OR THAT ANY SYSTEM OR
SERVICES WILL PREVENT INTRUSIONS, FIRES OR OTHER OCCURRENCES, OR THE
CONSEQUENCES OF SUCH OCCURRENCES, REGARDLESS OF WHETHER OR NOT
THE SYSTEM OR SERVICES ARE DESIGNATED TO MONITOR SAME; AND EVERY
OWNER OR OCCUPANT OF PROPERTY SERVICED BY THE COMMUNITY SYSTEMS
ACKNOWLEDGES THAT DECLARANT, PARCEL 2 DEVELOPER, THE MASTER
ASSOCIATION, THE APPLICABLE SUB-ASSOCIATION OR ANY SUCCESSOR, ASSIGN
OR FRANCHISEE OF THE DECLARANT, PARCEL 2 DEVELOPER, OR ANY OF THE
OTHER AFORESAID ENTITIES AND ANY OPERATOR, ARE NOT INSURERS OF THE
OWNER'S OR OCCUPANT'S PROPERTY OR OF THE PROPERTY OF OTHERS
LOCATED ON THE PREMISES AND WILL NOT BE RESPONSIBLE OR LIABLE FOR
LOSSES, INJURIES OR DEATHS RESULTING FROM SUCH OCCURRENCES. It is
extremely difficult and impractical to determine the actual damages, if any, which may
proximately result from failure on the part of an alarm or monitoring service provider to perform
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any of its obligations with respect to such services and, therefore, every Owner or occupant of
property receiving security services through the Community Systems agrees that Declarant,
Parcel 2 Developer, the Master Association, all Sub-Associations or any successor, assign or
franchisee thereof and any Operator assume no liability for loss or damage to property or for
personal injury or death to persons due to any reason, including without limitation, failure in
transmission of an alarm, interruption of other service or failure to respond to an alarm because
of (a) any failure of the Owner's system; (b) any defective or damaged equipment, device, line or
circuit; (c) negligence, active or otherwise, of the service provider or its officers, agents or
employees; or (d) fire, flood, riot, war, act of terrorism, act of God or other similar causes which
are beyond the control of the service provider.
Every Owner or occupant of property obtaining security services through the Community
Systems further agrees for himself, his grantees, tenants, guests, invitees, licensees, and family
members that if any loss, damage, injury or death should result from a failure of performance or
operation, or from defective performance or operation , or from improper installation, monitoring
or servicing of the system, or from negligence, active or otherwise of the security service
provider or its officers, agents, or employees, the liability, if any, of Declarant, the Parcel 2
Developer, the Master Association, all Sub-Associations, any franchisee of the foregoing and the
Operator or their successors or assigns, for loss, damage, injury or death sustained shall be
limited to a sum not exceeding Two Hundred Fifty and No/100 U.S. Dollars ($250.00), which
limitation shall apply irrespective of the cause or origin of the loss or damage and
notwithstanding that the loss or damage results directly or indirectly from negligent performance,
active or otherwise, or non-performance by an officer, agent or employee of Declarant, the
Parcel 2 Developer, the Master Association, any Sub-Association or any franchisee, successor or
assign of any of same or any Operator. Further, in no event will Declarant, the Parcel 2
Developer, the Master Association, any Sub-Association, any Operator or any of their
franchisees, successors or assigns, be liable for consequential damages, wrongful death, personal
injury or commercial loss.
In recognition of the fact that interruptions in cable television and other Community
Systems services will occur from time to time, no person or entity described above shall in any
manner be liable, and no user of any Community System shall be entitled to refund, rebate,
discount or offset. in applicable fees, for any interruption in Community Systems services,
regardless of whether or not same is caused by reasons within the control of the then provider(s)
of such services.
Section 14. Covenants Running With The Land. ANYTHING TO THE CONTRARY
HEREIN NOTWITHSTANDING AND WITHOUT LIMITING THE GENERALITY (AND
SUBJECT TO THE LIMITATIONS) OF OTHER APPLICABLE SECTIONS HEREOF, IT IS
THE INTENTION OF ALL PARTIES AFFECTED HEREBY (AND THEIR RESPECTIVE
HEIRS, PERSONAL REPRESENTATIVES, SUCCESSORS AND ASSIGNS) THAT THESE
COVENANTS AND RESTRICTIONS SHALL RUN WITH THE LAND AND WITH TITLE
TO THE PROPERTY. WITHOUT LIMITING THE GENERALITY OF ANY OTHER
SECTION HEREOF, IF ANY PROVISION OR APPLICATION OF THIS DECLARATION
WOULD PREVENT THIS DECLARATION FROM RUNNING WITH THE LAND AS
AFORESAID, SUCH PROVISION AND/OR APPLICATION SHALL BE JUDICIALLY
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MODIFIED, IF AT ALL POSSIBLE, TO COME AS CLOSE AS POSSIBLE TO THE INTENT
OF SUCH PROVISION OR APPLICATION AND THEN BE ENFORCED IN A MANNER
WHICH WILL ALLOW THESE COVENANTS AND RESTRICTIONS TO SO RUN WITH
THE LAND; BUT IF SUCH PROVISION AND/OR APPLICATION CANNOT BE SO
MODIFIED, SUCH PROVISION AND/OR APPLICATION SHALL BE UNENFORCEABLE
AND CONSIDERED NULL AND VOID IN ORDER THAT THE PARAMOUNT GOAL OF
THE PARTIES AFFECTED HEREBY (THAT THESE COVENANTS AND RESTRICTIONS
RUN WITH THE LAND AS AFORESAID) BE ACHIEVED.
Section 15. Limitation on Master Association. Anything in this Declaration to the
contrary notwithstanding, the existence or exercise of any easement, right, power, authority,
privilege or duty of the Master Association as same pertains to any condominium located or
which may be within the Property which would cause the Master Association to be subject to
Chapter 718, Florida Statutes, shall be null, void and of no effect to the extent, but only to the
extent, that such existence or exercise is finally determined to subject the Master Association to
said Chapter 718. It is the intent of this provision that the Master Association not be deemed to
be a condominium association, nor the Maintenance Areas be deemed to be common elements of
any such condominium, within the meaning of applicable laws or administrative rules for any
purpose.
Section 16. Notices and Disclaimers As To Water Bodies. NEITHER DECLARANT,
THE PARCEL 2 DEVELOPER, THE MASTER ASSOCIATION, ANY SUB-
ASSOCIATION(S) NOR ANY OF THEIR OFFICERS, DIRECTORS, COMMITTEE
MEMBERS, EMPLOYEES, MANAGEMENT AGENTS, CONTRACTORS OR SUB-
CONTRACTORS (COLLECTIVELY, THE "LISTED PARTIES") SHALL BE LIABLE OR
RESPONSIBLE FOR MAINTAINING OR ASSURING THE WATER QUALITY OR LEVEL
ANY POND, CANAL, CREEK, STREAM OR OTHER WATER BODY WITHIN OR
ADJACENT TO THE COMMUNITY, EXCEPT (i) AS SUCH RESPONSIBILITY MAY BE
SPECIFICALLY IMPOSED BY, OR CONTRACTED WITH, AN APPLICABLE
GOVERNMENTAL OR QUASI-GOVERNMENTAL AGENCY OR AUTHORITY OR (ii) TO
THE EXTENT THAT OTHER EXPRESSLY APPLICABLE SECTIONS HEREOF WOULD
OTHERWISE APPLY, IF AT ALL. FURTHER, ALL OWNERS AND USERS OF ANY
PORTION OF THE COMMUNITY LOCATED ADJACENT TO OR HAVING A VIEW OF
ANY OF THE AFORESAID WATER BODIES SHALL BE DEEMED, BY VIRTUE OF
THEIR ACCEPTANCE OF THE DEED TO OR USE OF, SUCH PROPERTY, TO HAVE
AGREED TO HOLD HARMLESS THE LISTED PARTIES FOR ANY AND ALL CHANGES
IN THE QUALITY AND LEVEL OF THE WATER IN SUCH BODIES.
ALL PERSONS ARE HEREBY NOTIFIED THAT, FROM TIME TO TIME,
ALLIGATORS AND OTHER WILDLIFE MAY INHABIT OR ENTER INTO WATER
BODIES AND MAY POSE A THREAT TO PERSONS, PETS AND PROPERTY, BUT THAT
THE LISTED PARTIES ARE UNDER NO DUTY TO PROTECT AGAINST, AND DO NOT
IN ANY MANNER WARRANT AGAINST, ANY DEATH, INJURY OR DAMAGE CAUSED
BY SUCH WILDLIFE.
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Section 17. Mortgage Provisions. Any notice of any default under this Declaration
shall be sent to any Institutional Mortgagee of the defaulting Declarant as Parcel 1 Owner and/or
Parcel 2 Developer, as applicable, and such Institutional Mortgagee shall have the right to cure
such default on the applicable mortgagor's behalf. With respect to Institutional Mortgagees of
individual condominium units or non-condominium residences as to Parcel 1, provided that such
Institutional Mortgagees register with the Master Association, notice of any default by the
applicable mortgagor will be sent to the Institutional Mortgagee at the address provided.
Provided, however, the Master Association shall not be obligated in any manner to deliver more
than one such notice as to a default, nor shall the Master Association be obligated to limit or
delay in any manner the exercise of any remedies to which it may be entitled.
Section 18. Estoppel Certificate. As to each of Declarant and Parcel 2 Developer,
upon the request of the other party, must issue to such requesting party, mortgagee or prospective
mortgagee or successor-in-title, an estoppel certificate with respect to compliance with the terms
of the Declaration (and upon submission of one or both of the Parcels to condominium, such
requests shall be made and responded to by the respective unit owners' association).
Section 19. Certain Reserved Rights of Declarant and Granted Rights of Parcel 2
Developer With Respect To Community S std. Without limiting the generality of any other
applicable provisions of this Declaration, and without such provisions limiting the generality
hereof, Declarant hereby reserves and retains to itself and grants to Parcel 2 Developer:
A. the title to any Community Systems and a perpetual easement for the
placement, location and maintenance thereof;
B. the right to connect, from time to time, the Community Systems to such
receiving and telecommuting or intermediary transmission source(s) as Declarant may in its sole
discretion deem appropriate including, without limitation, companies licensed to provide CATV
and telecommuting service in the County, for which service Declarant shall have the right to
charge any users a reasonable fee (which shall not exceed any maximum allowable charge
provided for in the Code of Laws and Ordinances of the County; and
C. the right to offer from time to time alarm and monitoring services through the
Community Systems.
Section 20. Use of Property Name. All parties owning or otherwise making any use of
any portion of the Property shall be deemed, by virtue of accepting such ownership or making
such use, to have covenanted and agreed that (i) "The Preserve at Tequesta" is, or will become, a
registered trademark of the Declarant, (ii) except as provided below, no usage of that mark or
name or any variation thereof will be made in naming or referring to any business or activity
within or outside of the Property or in describing or referring to the location of any business or
enterprise conducted within or outside of the Property and (iii) generally, no usage of that mark
or name will be made. whatsoever without the express prior written approval of the Declarant.
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Section 21. Delivery of Documents to Subsequent Owners. Owners shall be obligated
to deliver the documents originally received from the Declarant and/or Parcel 2 Developer,
containing this and other declarations and documents, to any grantee or lessee of such Owners.
Section 22. Joinder by THE PRESERVE AT TEOUESTA MAINTENANCE
ASSOCIATION, INC. This Declaration is being executed by The Preserve at Tequesta
Maintenance Association, Inc. to acknowledge its joinder in this Declaration for the purpose of
agreeing to perform its obligations as contained herein.
Section 23. Governing_Law. The terms, covenants and conditions of this Declaration
shall be construed, governed by and enforced in accordance with the laws of the State of Florida.
Section 24. Gender and Plurality. Whenever the context so requires, the use of the
masculine gender, the use of the singular to include the plural, and the use of the plural to include
the singular.
Section 25. Owner Acceptance and Ratification. By acquisition of title to real
property subject to this Declaration, each Owner thereby irrevocably ratifies, approves and
affirms all provisions of the Declaration and actions of the Board with respect to the method of
determination and collection of assessments and assessment rates for the year during which such
Owner acquired title to his respective Plat Parcel, Tract, Unit, or other real property.
[Intentionally left blank.]
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IN WITNESS WHEREOF, Declarant has caused the foregoing Declaration of Covenants,
Restrictions and Easements to be executed by its undersigned duly authorized officers on the
date set forth above.
Witnesses:
Sign Name
Print Name
Sign Name
Print Name
CORNERSTONE TEQUESTA, L.L.C., a
Florida limited liability company
By: _
Name:
Title:
STATE OF FLORIDA )
ss:
COUNTY OF )
This foregoing instrument was acknowledged before this day of ,
200_, by as of
CORNERSTONE TEQUESTA, L.L.C., a Florida limited liability company, on behalf of said
limited liability company, who is personally known to me or who produced
as identification.
[NOTARY SEAL]
Notary Public, State of Florida
My commission expires:
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JOINDER BY THE PRESERVE AT TEQUESTA MAINTENANCE ASSOCIATION, INC.,
pursuant to Article XIV, Section _ hereof:
WITNESSES:
Signed, sealed and delivered in the presence
of:
THE PRESERVE AT TEQUESTA
MAINTENANCE ASSOCIATION, INC., a
Florida not-for-profit corporation
Name:
Name:
STATE OF FLORIDA )
ss:
COUNTY OF )
By:
Name:
Title:
PRESIDENT
This foregoing instrument was acknowledged before this day of ,
200_, by as of THE PRESERVE AT
TEQUESTA MAINTENANCE ASSOCIATION, INC., a Florida corporation, on behalf of said
corporation, who is personally known to me or who produced
as identification.
[NOTARY SEAL]
Notary Public, State of Florida
My commission expires:
- 53 - PMB PMB 305685 3
MORTGAGEE'S CONSENT AND JOINDER
This Consent and Joinder of Mortgagee is made this day of
200_, by BANKUNITED, FSB, a Federal savings bank,
("Mortgagee") having a mailing address of 255 Alhambra Circle, Penthouse, Coral Gables,
Florida 33134 ("Mortgagee"):
WITNESSETH:
For good and valuable consideration in hand paid, the Mortgagee, as owner and holder of
the following described documents (the "Loan Documents"):
1. Mortgage recorded in Official Records Book 17874, Page 1498, of the Public
Records of Palm Beach County, Florida,; and
2. Assignment of Leases, Rents and Profits, recorded in Official Records Book
17874, Page 1550, of the Public Records of Palm Beach County, Florida,; and
3. UCC Financing Statement recorded in Official Records Book 17874, Page
1563, of the Public Records of Palm Beach County, Florida,
4. Modification of Mortgage and Notice of Future Advance recorded in Official
Records Book 19868, Page 1670 of the Public Records of Palm Beach
County, Florida,
as the foregoing may be amended, securing all of the real property described therein, hereby
consents to and joins in the making of the Declaration of Covenants, Restrictions and Easements
for The Preserve at Tequesta.
Provided always, nevertheless, that nothing herein contained shall in anyway impair, alter
or diminish the effect, lien or encumbrance of the Loan Documents on the remaining part of said
mortgaged premises, or any of the rights and remedies of the Mortgagee or any subsequent
holder thereof, nor shall anything herein contained by construed as an assumption by Mortgagee
of any obligations of the grantor of the foregoing Declaration.
IN WITNESS WHEREOF, the Mortgagee has hereunto caused these presents to be
executed on the day and year first above written.
BANKUNITED, FSB
a Federal savings bank
By:
Sign Name
Print Name
Sign Name
Name:
Title:
Print Name
54 - PMB PMB 305685 3
STATE OF FLORIDA )
ss:
COUNTY OF )
The foregoing instrument was acknowledged before me this day of
200_, by the
of BANKUNITED, FSB, a Federal savings bank, who is personally
known to me or who has produced as identification.
{notary seal}
Notary Public, State of Florida
Commission Number:
My Commission Expires:
- 55 - PMB PMB 305685 3
EXHIBIT "A"
Legal Description of Property
Parcel 1
Parcel 1 as depicted on that certain Site Plan attached to this Declaration as Exhibit "B"
and comprised of Tracts B, I, and L, together with Parcels 7 through 16 inclusive of the
Plat of The Preserve of Tequesta to be recorded in the Public Records of Palm Beach
County, Florida (the "Plat").
Together with:
Parcel 2:
Parcel 2 as depicted on that certain Site Plan attached to this Declaration as Exhibit "B"
and comprised of Tracts J, K and M, together with Parcels 4, 5 and 6 of the Plat.
56 - PMB PMB 30S68S 3
EXHIBIT "B"
Site Plan
57 - PMB PMB 305685 3
EXHIBIT "C"
Common Facilities ("Maintenance Areas")
1. Stormwater retention basins, in-ground drainage facilities and other stormwater
management facilities and structures required under the permit issued by the SFWMD, as
well as stormwater management facilities benefiting the Sterling property to the east (as
described in the SFWMD Permit);
2. Scrub Jay Preserve, as shown on the Plat;
3. Interior roadways (including the entrance roadways and any associated culverts or
drainage facilities along Old Dixie Highway and Village Boulevard), as well as shared
parking areas on Parcel 2 as shown on the Plat;
4. Shared utility lines, including those located in the entrance roadway off of Old Dixie
Highway;
Fencing along the exterior of the Property;
6. Landscaping areas and signage located at the entrance roadways off of Old Dixie
Highway and Village Boulevard and along public roadways; and
7. Lighting facilities associated with the interior roadways, shared entrance and signage.
8. Any other areas designated as Maintenance Areas by the Declarant, and/or the Parcel 2
Developer and/or the Board of Directors of the Maintenance Association pursuant to the
Declaration.
- 5g - PMB PMB 305685 3
EXHIBIT "D"
South Florida Water Management District Permit
- 59 - PMB PMB 305685 3
EXHIBIT "E"
Articles of Incorporation of Maintenance Association
60 ' PMB PMB 305685 3
EXHIBIT "F"
Bylaws of Maintenance Association
61 - PMB PMB 305685 3
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