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6001 SW 70 ST_GREEN MISC j 1 BERCOW & RADELL ZONING, LAND USE AND ENVIRONMENTAL LAW 1 Direct:305-377-6235 E-Mail:BFemandeftrzoninolaw.com VIA HAND DELIVERY I i May 25, 2005 Luis Figueredo, Esq. 0 City Attorney City of South Miami c/o Nagin Gallop Figueredo 3225 Aviation Avenue Miami Florida 33133-4741 ft RE: Valencia Apartments Condominium Conversion 6001 SW 70th Street, South Miami, FL 33143 Dear Mr. Figueredo: As a follow up to our meeting on May 12, 2005,.enclosed please find the revised Declaration of Condominium for Valencia, which replaces the terms "assigned" with "designated", and eliminates the word "exclusive" in section 3.3(d). Please let me know if you have any questions or comments regarding the revised Declaration of Condominium. Sincerely, j Ben Fernandez BF/bl cc: Don O'Donnolly 0 4 0 WACHOVIA FINANCIAL CENTER•200 SOUTH BISCAYNE BOULEVARD,SUITE 850•MIAMI,FLORIDA 33131 PHONE.305.374.5300•FAX.305.377.6222 � 1 Exhibit"A DECLARATION OF CONDOMINIUM Table of Contents 1. _ Introduction and Submission. ................... 2. Definitions. ............................... ...................................5 ........................................................ 3. Description of Condominium .............................................................................................28 4. Restraint Upon Separation and Partition of Common Elements. .......................................84 5. Ownership of Common Elements and Common Surplus and Share of Common Expenses; VotingRights.....................................................................................................................85 6. Amendments.....................................................................................................................86 7. Maintenance and Repairs. ....................... ..............................96 ........................................... 8. Additions, Alterations or Improvements by.the Association .............................................109 9. Additions, Alterations or Improvements...........................................................................110 10. Changes in Developer-Owned Units ...............................................................................123 11. Operation of the Condominium by the Association..........................................................126 12. Determination of Common Expenses and Fixing of Assessments Therefor.....................143 13. Collection of Assessments. .......................:.....................................................................145 14. Insurance........................................................................................................................161 15. Reconstruction or Repair After Fire or Other Casualty.....................................................185 16. Condemnation.................................................................................................................208 17. Occupancy and Use Restrictions ....................................................................................224 18. Selling and Mortgaging of Units.......................................................................................272 19. Compliance and Default..................................................................................................286 20. Termination of Condominium ..........................................................................................301 21. Additional Rights of Mortgagees and Others...................................................................303 22. The Condominium Association........................................................................................306 23. Covenant Running With the Land.............................................I.......................................307 24. Access of Developer to Building and Units and to Reports..............................................309 25. Notices............................................................................................................................310 26. Reservation of Roof, Air and Development Rights...........................................................312 27. Additional Provisions.......................................................................................................314 28. Disclaimer Of Warranties. ...............................................................................................328 Joinder.............................................................................................................................350 ConsentOf Mortgagee....................................................................................................354 Condo Dec v07 redline v06.doc DECLARATION OF CONDOMINIUM -i- EXHIBIT"A" This instrument prepared by, and after recording return to: Howard J.Vogel,Esq. BERMAN RENNERT VOGEL&MANDLER,P.A. 100 S.E.Second Street,Suite 2900 Miami,Florida 33131-2130 DECLARATION OF CONDOMINIUM OF VALENCIA, A CONDOMINIUM F Valencia South Miami, LLC, a Florida limited liability company, hereby declares: 1. Introduction and Submission. 1.1 The Land. The Developer owns the fee simple title to certain land located in Miami-Dade County, Florida, as more particularly described in Exhibit "1" annexed hereto (the "Land"). 1.2 Submission Statement. The Developer hereby submits the property described in Exhibit "1" annexed hereto, including all improvements erected or to be erected thereon and therein (but_ excluding all public or private utility installations, e.g., cable television and/or other receiving or transmitting lines, antennae or equipment therein or thereon) to the condominium form of ownership and use in the manner provided for in the Act, as hereafter defined. Without limiting any of the foregoing, no property located outside of the boundaries of the Condominium as described in Exhibit "1" annexed hereto, shall for any purposes be deemed part of the Condominium or shall be subject to the jurisdiction of the Association, the operation and effect of the Act or any rules or regulations promulgated pursuant thereto. Notwithstanding anything to the contrary in this Declaration, the Developer hereby reserves and retains unto itself, and its successors and assigns, all right, title and ownership of and over the air space above and around the buildings now or hereafter constructed within the Condominium, extending vertically into infinity, any and all unused development rights and interests relating to the Land, whether now existing or hereafter created, including (without limitation) any and all severable or transferable density allocations and use rights, and the unconditional right to transfer such rights to other properties, without the consent or joinder of any other party, provided however, that the Association and each Unit Owner shall execute and deliver and documents necessary or desirable to effectuate the purpose and intent of the foregoing provision. The foregoing reserved rights and interests shall not for any purposes be deemed part of the Condominium and shall not be subject to the ownership or jurisdiction of the Association. Neither the Land nor any of the Units shall be within a Multi-condominium. DECLARATION OF CONDOMINIUM -=1- 1.3 Name. The name by which this condominium is to be identified is Valencia, a Condominium (hereinafter called the "Condominium"). 2. Definitions. The following terms when used in this Declaration and in its exhibits, and as it and they may hereafter be amended, shall have the respective meanings ascribed to them in this section, except where the context clearly indicates a different meaning: 2.1 "Act" means the Florida Condominium Act (Chapter 718 of the Florida Statutes) as it exists on the date hereof and as it may be hereafter renumbered. 2.2 "Applicable Law" means all laws, rules, regulations, codes and ordinances of the United States, the State of Florida, the County of Miami-Dade and the City of South Miami, Florida, applicable to the ownership, operation and use of the Condominium Property, as renumbered from time to time. 2.3 "Articles" or "Articles of Incorporation" mean the Articles of Incorporation of the Association, as amended'from time to time. 2.4 "Assessment" means a share of the funds required for the payment of Common Expenses which from time to time are assessed against a Unit Owner. 2.5 "Association" or "Condominium Association" means Valencia South Miami Condominium Association, Inc., a Florida corporation not for profit, the entity responsible for the operation of the Condominium. 2.6 "Association Property" means that property, real and personal, which is owned or leased by, or is dedicated by a recorded plat to, the Association for the use and benefit of its members. 2.7 "Board" or "Board of Directors" means the board of directors and the members of the board of directors, from time to time, of the Association. 2.8 "Building" means the structure(s) in which the Units and the Common Elements are located. 2.9 "Bureau" means the Bureau of Standards and Registration of the Division of Florida Land Sales, Condominiums and Mobile Homes, or its successor. 2.10 "By-Laws" mean the By-Laws of the Association, as amended from time to time. 2.11 "Charges" mean the funds required.for the payment of expenses, interest, costs, and/or attorney's fees, other than Common Expenses, which from time to time are charged to a Unit Owner (but not necessarily against all Unit Owners). 2.12 "Commercial Limited Common Elements" means those Common Elements, the exclusive use and enjoyment of which is reserved to the Owners and occupants of each and every Commercial. Unit to the exclusion of the Owners and occupants of the Residential Units, as specified in this Declaration, which may DECLARATION OF CONDOMINIUM exist from time to time, including, without limitation, any patios, terraces, lanais, corridors, meter rooms, vault rooms, sidewalks (to the extent permitted under Applicable Law) and/or portions of the surface of the exterior walls of the Building adjacent to a Commercial Unit as identified in Exhibit"1" attached hereto. 2.13 "Commercial Unit(s.)" means and refers to any Unit or Units identified with the prefix "CU-" as identified on Exhibit "1" attached hereto, which is designed and intended to be used for'any purpose permitted by applicable zoning ordinances, including, residential and/or non-residential purposes. References herein to "Units" shall include the Commercial Unit unless the context would prohibit or it is otherwise expressly provided. 2.14 "Commercial Unit Owner(s)" means and refers to the Owner(s) of a Commercial Unit(s). 2.15 "Committee" means a group of members of the Board or Unit Owners, or members of the Board: and Unit Owners, appointed by the Board, or by a member of the Board, to make recommendations to the Board or to take action on behalf of the Board. 2.16 "Common Elements" mean and include: (a) The portions of the Condominium Property which are not a part of or included within the Units; (b) Non-exclusive easements through the Units for conduits, ducts, plumbing, wiring and other facilities for the furnishing of utility and other services to the Units and to the Common Elements; (c) An easement of support in every portion of a Unit which contributes to the support of the Building; (d) The property and installations, including .without limitation, the conduits, ducts, plumbing, wiring and other facilities located within the Units, required for the furnishing of utilities and other services to more than one Unit or to the Common Elements; and (e) Any other parts of the Condominium Property designated as Common Elements in this Declaration. 2.17 "Common Expenses" mean all expenses incurred by the Association for the operation, maintenance, repair, replacement or protection of the Condominium Property, the costs of carrying out the powers and duties of the Association, and any other expense, whether or not included in the foregoing, designated as a Common Expense by the Act, the Declaration, the Articles or the Bylaws. For all purposes of this Declaration, "Common Expenses" shall also include: (i) all expenses incurred by the Association for the maintenance, repair or replacement of those portions of the Units and any Limited Common Elements appurtenant thereto, for which it is responsible pursuant to Section 7.1 of this Declaration; (ii) all reserves required by the Act or otherwise established by the Association, DECLARATION OF CONDOMINIUM regardless of when reserve funds are expended; (iii) if applicable, the cost of a master antenna television system or duly franchised cable television service obtained pursuant to a bulk contract; (iv) if applicable, costs relating to reasonable transportation services, insurance for directors and officers, road maintenance and operation expenses, in-house communications and surveillance and restricted access systems which are reasonably related to the general benefit of the Unit Owners; (v) Limited Common Expenses; (vi) Residential Limited Common Expenses; and (vii) any unpaid Assessments extinguished by foreclosure of a superior lien or by a deed in lieu of foreclosure thereof. 2.18 "Common Surplus" means the excess of all receipts of the Association collected on behalf of the Association, including, but not limited to, Assessments, rents, profits and revenues on account of the Common Elements, but excluding funds collected for reserves, over the amount of Common Expenses. 2.19 "Condominium Parcel" means a Unit together with the Limited Common Elements appurtenant to said Unit and the undivided share in the Common Elements which is appurtenant to said Unit; and when the context permits, the term includes all other appurtenances to the Unit. 2.20 "Condominium Property" means the Land, Improvements and other property described in Section 1.2. hereof, subject to the limitations thereof and exclusions therefrom. 2.21 "County" means the County of Miami-Dade, State of Florida. 2.22 "Declaration" or "Declaration of Condominium" means this instrument and all exhibits attached hereto, as the same may be amended from time to time. 2.23 "Developer" means Valencia South Miami, LLC, a Florida limited liability company its successors and such of its assigns as to which the rights of Developer hereunder may be specifically assigned. Developer may assign all or any portion of its rights hereunder, or all or any portion of such rights in connection with specific portions of the Condominium. In the event of any partial assignment, the assignee shall not be deemed the Developer, but may exercise such rights of the Developer as are specifically assigned to it. Any such assignment may be made on a nonexclusive basis. In the event the holder of any mortgage executed by the Developer, or any subsidiary or affiliate of the holder, obtains title to all or any portion of the Condominium Property by foreclosure, or deed in lieu thereof, or other conveyance, such holder, or subsidiary or affiliate of the holder, shall become the Developer only if it so elects by written notice to the Board, except as otherwise provided by the Act or the rules promulgated thereunder, but regardless of such election the holder, or subsidiary or affiliate of the holder, shall have the right to assign any of the rights of the Developer as provided herein to any third party who acquires title to all or a portion of the Condominium Property.from the holder, or subsidiary or affiliate of the holder. In any event, any subsequent Developer shall not be liable for any defaults or obligations incurred by any prior Developer, except as same are expressly assumed by the subsequent Developer. The rights. of Developer under this DECLARATION OF CONDOMINIUM 4 Declaration are independent of the Developer's rights to control the Board of Directors of the Association, and, accordingly, shall not be deemed waived, transferred or assigned to the Unit Owners, the Board. or the Association upon turnover of control of the Association. 2.24 "Dispute", for purposes of Section 19.1, means any disagreement between two or more parties that involves: (a) the authority of the Board under any law, rule or regulation or under this Declaration, the Articles or the By-Laws to: (i) require any Owner to take any action, or not to take any action, involving that Owner's Unit; or (ii) alter or add to a common area or Common Element; or(b) the failure of the Association, when required by law, rule or regulation or this Declaration, the Articles or By-Laws to: (i) properly conduct elections; (ii) give adequate notice of meetings or other actions; (iii) properly conduct meetings; or (iv) allow inspection of books and records. "Dispute" shall not include any disagreement that primarily involves: title to any Unit, Limited Common Elements or Common Elements; the interpretation or enforcement of any warranty; the levy of a fee or Assessment, or the collection of an Assessment levied against a party; the eviction or other removal of a tenant from a Unit; alleged breaches of fiduciary duty by one or more directors of the Association; or claims for damages to a Unit based upon an alleged failure of the Association to maintain the Common Elements or Condominium Property. . 2.25 "Electronic Transmission" means any form of communication,. not directly involving the physical transmission or transfer of paper, which creates a record that may be retained, retrieved, and reviewed by a recipient thereof and which may be directly reproduced in a. comprehensible and legible paper form by such recipient through an automated process. Examples of electronic transmission include, but are not limited to, telegrams, facsimile transmissions of images, and text that is sent via electronic mail between computers. 2.26 "Improvements" shall mean all structures and artificial changes to the natural environment (exclusive of landscaping) located on and in the Condominium Property, including, but not limited to, the Building. 2.27 "Institutional First Mortgagee" means a bank, savings and loan association, insurance company, real'estate or mortgage investment trust, pension fund, an agency of the United States Government, mortgage banker, the Federal National Mortgage Association ("FNMA"), the Federal Home Loan Mortgage Corporation ("FHLMC") or any other lender generally recognized as an institutional lender, or the Developer, holding 'a first mortgage on a Unit or Units. A "Majority of Institutional First Mortgagees" shall mean and refer to Institutional First Mortgagees of Units to which at least fifty-one percent (51%) of the voting interests of Units subject to mortgages held by Institutional First Mortgagees are appurtenant. 2.28 "Life Safety Systems" mean those emergency lighting, audio and visual signals, security systems and sprinkler and smoke detection systems which have been installed in the Building, both within and without the Units, pursuant to the requirements of the applicable governmental authority having jurisdiction over DECLARATION OF CONDOMINIUM same. All such Life Safety Systems, together with all conduits, wiring, electrical connections and systems related thereto, shall be Common Elements. 2.29 "Limited Common Elements" mean those Common Elements, the exclusive use and enjoyment of which is reserved to the Owners and occupants of a certain Unit or Units to the exclusion of the Owners and occupants of other Units, as specified in this Declaration. References herein to Common Elements also shall include all Limited Common Elements unless the context would prohibit or unless otherwise expressly provided. 2.30 "Multi-condominium" means a real estate development containing two or more condominiums, all of which are operated by the same association. 2.31 "Primary Institutional First Mortgagee" means the Institutional First Mortgagee which owns, at the relevant time, first mortgages on Units securing a greater aggregate indebtedness than is owed to any other Institutional First Mortgagee. 2.32 "Residential Limited Common Elements" means those Common Elements the exclusive use and enjoyment of which is reserved to the Owners and occupants of each and every Residential Unit to the exclusion of the Owners and occupants of the Commercial Units, as specified in this Declaration, which may exist from time to time, including, without limitation, the swimming pool, the surrounding pool deck, jacuzzi and fitness center as identified in Exhibit 'T' attached hereto. Notwithstanding the foregoing, pursuant to Section 3.3(b) the exclusive use and enjoyment of certain types of Residential Limited Common Elements is reserved solely for use and enjoyment of the adjacent Residential Unit as specified in this Declaration. 2.33 "Residential Limited Common Expenses" mean all expenses incurred by the Association for the operation, maintenance, insurance, repair, replacement, alteration or protection of the Residential Limited Common Elements and any other expense, whether or not included in the foregoing, designated as a Residential Limited Common Expense by this Declaration, the Articles or the Bylaws. For all purposes of this Declaration, "Residential Limited Common Expenses" shall also include: (i) any and all utility charges separately metered and associated with the Residential Limited Common Elements (and for such utility charges that are not separately metered, the Association shall make a reasonable allocation);. (ii) all reserves required by the Act (unless properly waived), or otherwise established by the Association, with respect to any Residential Limited Common Elements, (iii) all costs associated with the exterior maintenance including, without limitation, costs for landscaping maintenance, window cleaning, replacements in, on and around the Residential Limited Common Elements, costs for repairs to pavers or other floor coverings, any and all pool and jacuzzi related expenses (including without limitation, pool deck resurfacing, chemical treatments and monitoring, etc), any and all fitness center related expenses as well as the costs of all personnel assisting in the operation and/or maintenance of the Residential Limited Common Elements; and (iv) if applicable, the cost of a',master antenna television system, duly franchised cable television service, or for;broadband, telecommunications, satellite and/or internet DECLARATION OF CONDOMINIUM service obtained pursuant to a bulk contract to the extent that same serves the Residential Units only. 2.34 "Residential Unit" means each of the Units, other than the Commercial Units. References herein to "Units" shall include the Residential Units unless the context prohibits or it is otherwise expressly provided. 2.35 "Residential Unit Owner(s)" means and refers to the Owner(s) of the Residential Units. 2.36 "Turnover" means the date the Developer no longer has the right to elect or appoint a majority of the Board of Directors at which time the Unit Owners shall assume control of the Association. 2.37 "Unit" or "Units" mean those portions of the Condominium Property which are subject to exclusive ownership, including the Commercial Units. 2.38 "Unit Owner" or "Owner of a Unit" or "Owner" means a record owner of legal title to a Condominium Parcel. Unless the context otherwise requires, any capitalized term not defined but used herein which is defined in the Articles and By-Laws shall have the meaning given to such word or words therein. 3. Description of Condominium 3.1 Identification of Units. Each Unit is identified by a separate numerical or alpha- numerical designation. The designation of each of such Units is set forth on Exhibit "1" attached hereto. Exhibit "1" consists of a survey of the Land, a graphic description of the Improvements located thereon, including, but not limited to, the Building, and a plot plan thereof. Said Exhibit "1", together with this Declaration, is sufficient in detail to identify the Common Elements, Limited Common Elements and each of the Units and their relative locations and dimensions. There shall pass with the Units as appurtenances thereto (a) an undivided share in the Common Elements and Common Surplus as set forth herein; (b) the exclusive right to use such portion of the Common Elements and Limited Common Elements as may be provided in this Declaration; (c) an exclusive easement for the use of the airspace occupied by the Unit as it exists at any particular time and as the Unit may lawfully be altered or reconstructed from time to time, provided that an easement in airspace which is vacated shall be terminated automatically; (d) membership in the Association with the full voting rights appurtenant thereto; and (e) any other appurtenances as may be provided by this Declaration. 3.2 Unit Boundaries. Each Unit shall include that part of the Building that lies within the following boundaries: (a) Upper and Lower Boundaries. The upper and lower boundaries of the Unit shall be the following boundaries extended to their planar intersections with the perimetrical boundaries: DECLARATION OF CONDOMINIUM (i) Upper Boundaries. The horizontal plane of the unfinished lower surface of the ceiling (which will be deemed to be the ceiling of the top story of the Unit if the Unit contains more than one story). (ii) Lower Boundaries. The horizontal plane of the unfinished upper surface of the floor of the Unit (which will be deemed to be the floor of the first story of the Unit if the Unit is a multi-story Unit). (iii) Interior Divisions. Except as provided in subsections (i) and (ii) above, no part of the floor of the top floor, ceiling of the bottom floor, stairwell adjoining the floors of a multi- floor Unit, or nonstructural interior walls shall be considered a boundary of the Unit. (iv) Boundaries Further Defined. The boundaries of the Unit shall not include all of those spaces and improvements lying beneath the undecorated and/or unfinished inner 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/or unfinished inner surfaces of all interior bearing walls and/or bearing partitions and, further, shall exclude 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. No part of the interior non-boundary walls within a Unit shall be considered a boundary of the Unit. (b) Perimetrical Boundaries. The perimetrical boundaries of. the Units shall be the vertical planes of the unfinished exterior surfaces of the exterior walls bounding the Unit and the centerline of the partitioning walls between Units extended to their planar intersections with each other and with the upper and lower boundaries. (c) Apertures. Where there are apertures in any boundary, including, but not limited to, windows, doors, bay windows and skylights, such boundaries shall be extended to include the windows, doors and other fixtures located in such apertures, including all frameworks, window casings and weather stripping thereof, together with exterior surfaces made of glass or other transparent materials; provided however that the exteriors of doors facing interior Common Element hallways shall not be included in the boundaries of the Unit and shall be Common Elements. (d) 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 "1," the above provisions describing the DECLARATION OF CONDOMINIUM 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 any erroneous dimensions contained in Exhibit "1" attached hereto, and in the event it shall appear that any dimension shown on Exhibit "1" attached hereto is erroneous the Developer (so long as it owns any Units) or the President of the Association (after the Developer no longer owns any Units) shall have the right to unilaterally amend the Declaration to correct such survey, and any such amendment shall not require the joinder of any Unit Owner or mortgagee so long 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 "1" 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 "1" describing the boundaries of a Unit, the language of this Declaration shall control. 3.3 Limited Common Elements. Each Unit may have, to the extent applicable and subject to the provisions of this Declaration, as Limited Common Elements appurtenant thereto: (a) Residential Limited Common Elements. The Residential Limited Common Elements shall be deemed Limited Common Elements appurtenant to each and every Residential Unit (to the exclusion of the Commercial Units) and shall be maintained solely by the Association. Except as provided below all of the costs of operating, maintaining, insuring, repairing, replacing, and altering the Residential Limited Common Elements (the "Residential Limited Common Expenses") shall be borne solely by the Residential Unit Owners. Without limiting the generality of Section 2.32 herein, the Residential Limited Common Elements shall not include any necessary repairs, maintenance, replacements or alterations to the structural components of the Building or any roofing of the Building. The Residential Limited Common Expenses shall be assessed against each of the Residential Units, with each bearing a fractional portion thereof, with the numerator thereof being the percentage allocable to the applicable Residential Unit on Exhibit "2-A" to this Declaration and the denominator being the aggregate of all percentages allocated to the Residential Units on said Exhibit"2-A" all as set forth on Exhibit"2-13" attached hereto. (b) Patios. Balconies, Terraces and Lanais to Residential Units. Any patio, balcony, terrace and/or lanai (and all improvements thereto) as to which direct and exclusive access shall be afforded to any particular Residential Unit or Units to the exclusion of others shall be a Residential Limited Common Element of such Residential Unit(s). Except as set forth below, the Association shall be responsible for the maintenance of the structural and mechanical elements of all such Residential Limited Common Elements, with the costs thereof being DECLARATION OF CONDOMINIUM part of the Residential Limited Common Expenses. The Owner of the Residential Unit(s) to which such Residential Limited Common Elements are appurtenant shall be responsible for the general maintenance and appearance of such areas, the repair, replacement and insurance of any floor coverings placed or installed on any patio, balcony, terrace and/or lanai, as well as all contents located thereon. Each Residential Owner, and its successors and assigns, that makes or causes to be made any additions, alterations or improvements to a patio, balcony, terrace and/or lanai, or uses or allows the use thereof, shall indemnify, defend and hold harmless the Developer, the Association and the other Unit Owners from any claims, liability, damages or expenses arising therefrom. The approval requirements set forth in Section 9.1 of this Declaration shall be applicable to any proposed improvements to such Residential Limited Common Elements. (c) Patios, Terraces, Lanais and/or Sidewalks appurtenant to Commercial Units. Any patios, terraces, lanais, corridors, meter rooms, vault rooms, sidewalks (to� the extent permitted under Applicable Law) and/or portions of the surface of the exterior walls of the Building adjacent to a Commercial Unit shall, subject to the provisions hereof, be a Limited Common Element of such Commercial Unit(s) (the "Commercial Limited Common Elements"), so that the Commercial Unit Owner may, from time to time, to the extent permitted by Applicable Law, incorporate and use such areas in connection with, or relating to, the operations from the Commercial Unit. Notwithstanding the foregoing, the designation of such areas as Commercial Limited Common Elements shall not entitle the Owner(s) of the Commercial Unit(s) to which they are appurtenant to preclude passage over such areas as may be required by Applicable Law (and an easement for such passage is hereby reserved). It is further understood and agreed that, subject to any approvals required from the applicable governmental authorities, the Commercial Unit Owners may place on the Commercial Limited Common Elements such signage, mechanical equipment and/or other items thereon, and may make any alterations or improvements, as they may desire, without requiring approval from the Association, the Board or any Unit Owner. The approval requirements set forth in Section 9.1 of this Declaration shall not be applicable to any proposed improvements to such Limited Common Elements. Notwithstanding the foregoing, any such installations, and any additions, alterations and improvements thereto shall be made in compliance with all applicable governmental laws, rules, ordinances and regulations. Except as provided below, the Association shall be responsible for the maintenance, repair and replacement of any such Commercial Limited Common Elements, with the costs of same being a part of the Common Expenses. Each Commercial Unit Owner shall, however, be responsible for; the general and maintenance and appearance of such DECLARATION OF CONDOMINIUM areas, and the repair, replacement and insurance of any furniture, furnishings, floor coverings and other additions, improvements and alterations placed thereon. A Commercial Unit Owner, and its successors and assigns, that makes or causes to be made any additions, alterations or improvements to a patio, terrace, lanai, corridors, meter rooms and/or sidewalks (to the extent permitted under Applicable Law) or uses or allows the use thereof, shall indemnify, defend and hold harmless the Developer, the Association and the other Unit Owners from any claims, liability, damages or expenses arising therefrom. (d) Parking Areas. The Common Elements include parking areas for vehicles. The Developer, for as long as it is offering Units for sale in the ordinary. course of business, and thereafter the Association may assigndesignate any parking space for the exelusive use of a Unit, which assige +tdesignation shall be part of the official records of the Association but shall not be recorded. Any parking spaces so ass+gneddesignated will be a Limited Common Element of the Unit if is assigned. Unit QwRoe OF Fesident of any Unit, and nano of thei guests and inyiteeG' shall nark in a narking spare ?sigTea fnTo as etrheF Unit without the peFMiSSIE)R of the applieable Unit .designated. A Unit may be assigneddesignated one or more Limited Common Element parking spaces appurtenant to the Unit, however, each Unit shall at all times have at least one Limited Common Element parking space. A Unit Owner may ass+gndesignate the Limited Common Element parking space appurtenant to his Unit to another Unit by written instrument delivered to (and held by) the Association, provided however, that no Unit may be left without at least one Limited Common Element parking space. While the maintenance of each parking space so assigr4eddesI nated shall be the responsibility of the Association, the insurance of all contents therein shall be the sole responsibility of the Owner of the Unit to which it is assi designated. In lieu of granting assig n Fnentsdesig nations of parking spaces, the Developer may elect, in its sole discretion, to grant, temporary or permanent licenses ("Parking Licenses") to Units to use any or all such spaces which shall be governed and subject to the same terms and conditions set forth in this Declaration for assignmentsdesignations of such parking spaces. EACH UNIT OWNER ACKNOWLEDGES AND AGREES THAT A PORTION OF THE PARKING AREAS IS LOCATED BELOW THE FEDERAL FLOOD PLAIN, AND, ACCORDINGLY, IN THE EVENT OF FLOODING, ANY AUTOMOBILES AND/OR PERSONAL PROPERTY STORED THEREIN IS SUSCEPTIBLE TO WATER DAMAGE. ADDITIONALLY, INSURANCE RATES, BOTH FOR THE ASSOCIATION IN INSURING THE PARKING AREAS, AND FOR OWNERS, MAY BE HIGHER THAN IF THE PAKRING AREAS WERE ABOVE THE FEDERAL FLOOD PLAIN. BY ACCEPTING THE RITDESIGNATION OF A PARKING SPACE, EACH DECLARATION OF CONDOMINIUM OWNER, FOR HIMSELF AND HIS TENANTS, GUESTS AND INVITEES, HEREBY EXPRESSLY ASSUMES ANY RESPONSIBILITY FOR LOSS, DAMAGE OR LIABILITY RESULTING THEREFROM. (e) Storage Spaces. The Common Elements include storage spaces for personal property. The Developer, for as long as it is offering Units for sale in the ordinary course of business, and thereafter the Association may assign any storage space(s) for the exclusive use of a Unit, which assignment shall be part of the official records of the Association but shall not be recorded. For so long as the Developer is offering Units for sale in the ordinary course of business, it shall be entitled to receive compensation in exchange for assignments of storage spaces and thereafter the Association shall be entitled to receive compensation therefor. Any storage area(s) so assigned will be a Limited Common Element of the Unit it is assigned. No Unit Owner or resident of any Unit, and none of their guests and invitees, shall use a storage area assigned to another Unit without the permission of the applicable Unit Owner. A Unit may be assigned one or more Limited Common Element storage space(s) appurtenant to the Unit. A Unit Owner may assign the Limited Common Element storage area appurtenant to his Unit to another Unit by written instrument delivered to (and held by) the Association. While the maintenance of each storage area so assigned shall be the responsibility of the Association, the insurance of all contents therein shall be the sole responsibility of the Owner of the Unit to which it is assigned. EACH UNIT OWNER ACKNOWLEDGES AND AGREES THAT PORTIONS OF THE STORAGE SPACES MAY BE LOCATED BELOW THE FEDERAL FLOOD PLAIN, AND, ACCORDINGLY, IN THE EVENT OF FLOODING, ANY PERSONAL PROPERTY STORED THEREIN IS SUSCEPTIBLE TO WATER DAMAGE. ADDITIONALLY, INSURANCE RATES, BOTH FOR THE ASSOCIATION IN INSURING THE STORAGE SPACES, AND FOR OWNERS, MAY BE HIGHER THAN IF THE STORAGE SPACES WERE ABOVE THE FEDERAL .FLOOD PLAIN. BY ACCEPTING THE ASSIGNMENT OF A STORAGE AREA, EACH OWNER, FOR HIMSELF AND HIS TENANTS, GUESTS AND INVITEES, HEREBY EXPRESSLY ASSUMES ANY RESPONSIBILITY FOR LOSS, DAMAGE OR LIABILITY RESULTING THEREFROM. (f) Miscellaneous Areas, Equipment. Any fixtures or equipment (e.g., an air conditioning compressor or hot water heater) serving a Unit or Units exclusively, and any area (e.g., a closet or ground slab) upon/within which such fixtures or equipment are located, which are outside the Unit(s), shall be Limited Common Elements of such Unit(s). The maintenance (and cost) of any such equipment and/or areas so assigned shall be the sole responsibility of the Owner of the Unit(s) to which it is assigned. DECLARATION OF CONDOMINIUM -_12- (g) Other. Any other portion of the Common Elements which, by its nature, cannot serve all Units but serves one or more Units (i.e., any hallway serving a single Unit or more than one Unit owned by the same Owner) shall be deemed a Limited Common Element of the Unit(s) served. In the event of any doubt or dispute as to whether any portion of the Common Elements constitutes a Limited Common Element or in the event of any question as to which Units are served thereby, a decision shall be made by a majority vote of the Board of Directors of the Association and shall be binding and conclusive when so made. 3.4 Easements. The following easements are hereby created (in addition to any easements created under the Act): (a) Support. Each' Unit, the Building and the Improvements 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 any other structure or improvement in the Condominium. (b) 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 or satellite television, communications and security systems, and other services and drainage in order to serve the Condominium. 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 or satellite television, communications and security systems, or other service or drainage facilities or the use of these easements. The Association or its agents shall have an irrevocable right of access to each Unit and to the Limited Common Elements to maintain, repair or replace the pipes, wires, ducts, vents, cables, conduits and other utility, cable television, communications and similar systems, private elevators, air conditioner equipment, hot water heaters, service and drainage facilities, and to Common Elements contained in the Unit or elsewhere in the Condominium Property, and to remove any improvements interfering with or impairing such facilities or easements herein reserved; provided, such right -of access, except in the event of an emergency, shall not unreasonably interfere with the Unit Owner's permitted use of the Unit and Limited Common Elements, and except in the event of an emergency, entry shall be made on not less than one (1) day's notice (which notice 'shall not, however, be required if the Unit Owner is absent when the giving of notice is attempted). (c) Encroachments. If (a) any portion of the Common Elements encroaches upon any Unit (or Limited Common Element appurtenant thereto); (b) any Unit (or Limited Common Element appurtenant thereto) encroaches upon any other Unit or upon any portion of the Common Elements; (c) any encroachment shall hereafter occur as a result of (i) construction of the Improvements; (ii) settling or shifting of DECLARATION OF CONDOMINIUM 1� the Improvements; (iii) any alteration or repair to the Common Elements made. by or with the consent of the Association or the Developer, as appropriate; (iv) any repair or restoration of the Improvements (or any portion thereof) or any Unit after damage by fire or other casualty or any taking by condemnation or eminent domain proceedings of all or any portion of any Unit or the Common Elements; or(v) any non-purposeful or non-negligent act of a Unit Owner, then, in any such event, a valid easement shall exist for such encroachment and for the maintenance of same so long as any such Improvements, shall stand. (d) Ingress and Egress. A non-exclusive easement in favor of each Unit Owner and occupant, their guests and invitees, shall exist (i) for pedestrian traffic over, through and across sidewalks, streets, paths, walks, and other portions of the Common Elements as from time to time may be intended and designated for such purpose and use and (ii) for vehicular and pedestrian traffic over, through and across such portions of the,Common Elements as from time to time may be paved and intended for such purposes. None of the easements specified in this subparagraph shall be encumbered by any leasehold or lien other than those on the Condominium Parcels. Any -such lien encumbering such easements (other than those on Condominium Parcels) automatically shall be subordinate to the rights of Unit Owners and the Association with respect to such easements. (e) Construction sand Maintenance. The Developer (including its designees, contractors, successors and assigns) shall have the right, in its (and their) sole discretion from time to time, to enter the Condominium Property and take all other action necessary or convenient for the purpose of completing construction thereof, or any part thereof, or any Improvements or Units located or to be located thereon, and for repair, replacement and maintenance or warranty purposes where the Association fails to do so or.where the Developer, in its sole discretion, determines that it is necessary or desirable to do so. (f) Sales, Marketing and Development Activities. For so long as the Developer is offering units in the ordinary course of business, the Developer, its 'designees, successors and assigns, shall have (i) the right to use any Units owned or leased by Developer, and any other part of the Common Elements or Association Property, for guest accommodations, models and sales and construction offices, to show model Units and the Common Elements to prospective purchasers and lessees of Units, and to use Units as guest suites, in the Condominium, and to erect on the Condominium Property and Association Property signs and other promotional materials to advertise Units for sale or lease; (ii) such easements over, upon, across and under the Condominium Property as may be reasonably required in connection with the development, construction, decoration, marketing, sale or leasing of any Unit within the Condominium DECLARATION OF CONDOMINIUM 14 Property, or within any other property owned by the Developer or any of its affiliates with the surrounding vicinity. (g) Association Easements. The Association and its agents, employees, contractors and assigns shall have easements to enter onto the Condominium ,Property and Association Property for the purpose of performing such functions as are permitted or required to be performed by such association, including, but not limited to, maintenance, controlled-access activities, if any, fire hose access and enforcement of architectural control and other restrictions. The easements reserved in favor of the Association and its agents, employees, contractors and assigns, shall include access easements through all Units and Limited Common Elements to perform exterior maintenance to the Building, including suchl, window washing and painting as the Association may be required to perform, and easements to stage window washing and other maintenance equipment on the Limited Common Elements. (h) Support of Adiacent Structures. In the event that any structure(s) is constructed so as to be connected in any manner to the Building, then there shall be (and there is hereby declared) an easement of support for such structure(s) as well as for the installation, maintenance, repair and replacement of all utility lines, pipes, and equipment serving the adjacent structure which are necessarily or conveniently located within the Condominium Property (provided that the use of this easement shall not unreasonably interfere with the structure, operation or use of the Condominium Property, or the Building). In the event that any structure(s) is constructed so as to be connected in any manner to the Building and/or any improvements constructed upon the property subject to the control of the Association, then there shall be (and there is hereby declared) an easement of support for such structure(s) as well as for the installation, maintenance, repair and replacement of all utility lines and equipment serving the adjoining structures which are necessarily or conveniently located within the Condominium Property and/or any Association Property. (i) Commercial Units. Without limiting the generality of the foregoing, the Owners and tenants of the Commercial Units, and their employees, guests and invitees, shall have: (1) any and all easements as necessary or desirable to enable the Commercial Unit Owners and the occupants, tenants, servants and/or employees of the Commercial Units to have unrestricted access to the Parking Areas upon the same terms and conditions as the Owners and occupants of the Residential Units; and (2) to the extent that any Commercial Unit has (a) HVAC and/or other mechanical equipment serving only its Commercial Unit (collectively, "Commercial Mechanical Equipment"), whether located therein or on any other portion of the Common Elements, or (b) is connected to, or derives service (utility or otherwise) from, any meter room, transformer room or other room located within the Condominium Property, and/or from the equipment contained in such rooms and any DECLARATION OF CONDOMINIUM -15- pipes, lines, ducts, wires and other items which connect the Commercial Unit to such rooms (collectively, the "Utility Equipment"), then any and all easements over and across portions of the Condominium Property as may be reasonably necessary to enable the Commercial Unit Owners, the occupants and/or tenants of the Commercial Unit(s) or their contractors, agents, designee to install, maintain, operate, repair, replace and/or alter the Commercial Mechanical Equipment or Utility Equipment. Notwithstanding anything to the contrary`contained in this Subsection 3.4(i) in exercising any of the easements granted herein, the Commercial Unit Owners may not impair service to any Unit(s) and/or the Common Elements and must comply with Applicable Law. (j) Warranty. For as long as Developer remains liable under any warranty, whether statutory, express or implied, for act or omission of Developer in the development, construction, sale and marketing of the Condominium, then Developer and its contractors, agents and designees shall have the right, in Developer's sole discretion and from time to time, to enter the Common Elements and Units for the purpose of making any necessary inspections, tests, repairs, improvements and/or replacements required for the Developer to fulfill any of its warranty obligations. Failure of the Association or any Unit Owner to grant such access may result in the appropriate warranty being nullified and of no further force or effect. Nothing herein shall be deemed or construed as the Developer making or offering any warranty, all of which are disclaimed (except to the extent same may not be) as set forth herein. (k) Additional Easements. The Developer, for as long as it is offering units for sale in the ordinary course of business, and the Association, through the Board, acting on the Association's behalf and on behalf of all Unit Owners (each of whom hereby appoints the Developer and/or the Association, as applicable, as its attorney-in-fact for this purpose), each shall have the right to grant such additional general ("blanket") and specific electric, gas or other utility, security systems, service or drainage easements, or hurricane shutters (and appropriate bills of sale for equipment, conduits, pipes, lines and similar installations pertaining thereto), or to relocate any such existing easements or drainage facilities, 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 the Developer, while in control of the Association, and, thereafter, the Association shall deem necessary or desirable for the proper operation and maintenance of the Units, or any portions 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 reasonable use of the Units for dwelling purposes. DECLARATION OF CONDOMINIUM _16- 4. Restraint Upon Separation and Partition of Common Elements. The undivided share in the Common Elements and Common Surplus which is appurtenant to a Unit, and the exclusive right to use all appurtenant Limited Common Elements, shall not be. separated therefrom and shall pass with the title to the Unit, whether or not separately described. The appurtenant share in the Common Elements and Common Surplus, and the exclusive right to use all Limited Common Elements appurtenant to a Unit, except as elsewhere herein provided to the contrary, cannot be conveyed or encumbered except together with the Unit. The respective shares in the Common Elements appurtenant to the Units shall remain undivided, and no action may be brought for partition of the Common Elements, the Condominium Property, or any part thereof, except as provided herein with respect to termination of the Condominium. 5. Ownership of Common Elements and Common Surplus and Share of Common Expenses; Voting Rights. 5.1 Percentage Ownership and Shares. Each Unit shall own an undivided share of the Common Elements and Common Surplus, and share of the Common Expenses, which shall be based upon the total square footage of such Unit in uniform relationship to the total square footage of each other Unit in the Condominium, as more particularly set forth on Exhibit"2" attached hereto. 5.2 Voting. Each Unit shall be entitled to one (1) vote to be cast by its Owner in accordance with the provisions of the By-Laws and the Articles of Incorporation. Each Unit Owner shall be a member of the Association. 6. Amendments. Except as elsewhere provided herein, amendments to this Declaration may be effected as follows: 6.1 By the Association. Notice of the subject matter of a proposed amendment shall be included in the notice of any meeting at which a proposed amendment is to be considered. A resolution for the adoption of a proposed amendment may be proposed either by a majority of the Board of Directors or by not less than one- third (1/3) of the members of the Association. Except as may be elsewhere provided, approvals must be by an affirmative vote representing in excess of 66 2/3% of the voting interests of Unit Owners. Notwithstanding the foregoing, any amendment to the exemptions granted to the Commercial Units shall be approved by an affirmative vote representing in excess of 80% of the voting interests in the Condominium. Directors not present in person at the meeting considering the amendment may vote by telephone conference, while Unit Owners not present at such a meeting may vote by proxy, provided that such proxy is delivered to the Secretary of the Association at or prior to the meeting. 6.2 By the Board. Except as elsewhere provided herein or by the Act, the Board of Directors, upon the unanimous vote of all the directors, shall have the right, without the consent of the Unit Owners, to make the following amendments to this Declaration: (i) amendments made to conform to the requirements of any Institutional First Mortgagee so that such mortgagee will make, insure, or guarantee first mortgage loans on the Units, (ii) amendments required by any governmental authority, or (iii) amendments made to conform with the provisions of this Declaration to any provisions of the Act or any rule promulgated DECLARATION OF CONDOMINIUM thereunder, or any other applicable statute or regulation now or hereafter adopted or amended, provided however, that no such amendment shall be effective to impose any additional liability or obligation on the Developer. 6.3 Material Amendments. No amendment shall change the configuration or size of any Unit in any material fashion, materially alter or modify the appurtenances to any Unit, or change the proportion or percentage by which the Owner of a Unit shares the Common Expenses and owns the Common Elements and Common Surplus (any such change or alteration being a "Material Amendment"), unless the record Owner(s) thereof, and all record owners of mortgages or other liens thereof, join in the execution of the amendment, and unless the record owners of all other Units approve the Amendment. 6.4 Material Alterations or Substantial Additions. The Association shall not make any material alterations or substantial additions to the Common Elements or to real property which is Association Property, without the approval of a majority of the voting interests of the Unit Owners. The installation, replacement and maintenance of approved hurricane shutters shall not be deemed to constitute a material alteration or substantial addition to the appurtenances of the Units, and accordingly, shall not constitute a Material Amendment. 6.5 Mortgagee's Consent. No amendment may be adopted which would eliminate, modify, prejudice, abridge or otherwise adversely affect any rights, benefits, privileges or priorities granted or reserved to mortgagees of Units without the consent of 66 2/3% of such mortgagees in each instance. Except as specifically provided herein or if required by FNMA or FHLMC, the consent and/or joinder of any lien or mortgage holder on a Unit shall not be required for the adoption of an amendment to this Declaration and, whenever the consent or joinder of a lien or mortgage holder is required, such consent or joinder shall not be unreasonably withheld. 6.6 By the Developer. Notwithstanding anything herein contained to the contrary, as long as the Developer is offering units for sale in the ordinary course of business, this Declaration, the Articles of Incorporation or the By-Laws may be amended by the Developer alone, without requiring the consent of any other party, to effect any change whatsoever including, without limitation, those changes to Developer-owned Units permitted in Section 10 of this Declaration, but expressly excluding an amendment: (i) to permit time-share estates (which must be approved, if at all, by all Unit Owners and mortgagees on Units); or (ii) to effect a "Material Amendment" (as defined in Section 6.3 above) or (iii) to effect changes or amendments prohibited to be made by the Developer or by the Association pursuant to the Act. No amendment to this Declaration, the Articles or the By- Laws may be adopted by the Association, the Board or any other party which would eliminate, modify, alter, prejudice, abridge or otherwise adversely affect, in any manner, any rights, benefits, privileges or priorities granted or reserved to the Developer, without the consent of the Developer in each instance which may be withheld in its sole and unfettered discretion. 6.7 Amendments affecting Commercial Units. Notwithstanding anything herein contained to the contrary, no amendment may be adopted to this Declaration, the DECLARATION OF CONDOMINIUM ♦ -_18- Articles, the By-Laws or any rules and regulations governing the Condominium Property (other than an amendment adopted by the Developer alone pursuant to any reserved rights it may have under this or any other documents) which would eliminate, modify, prejudice, abridge or otherwise adversely affect any rights, benefits, privileges or priorities granted or reserved to the Commercial Unit Owners, without the consent of at least 80% of all voting interests in the Condominium. , 6.8 Execution and Recording. An amendment, other than amendments made by the Developer alone pursuant to the Act or this Declaration, shall be evidenced by a certificate of the Association, executed either by the President of the Association or a majority of the members of the Board of Directors, which shall include recording information identifying this Declaration and shall be executed with the same formalities required for the execution of a deed. An amendment of this Declaration is effective when the applicable certificate is properly recorded in the public records of the County. No provision of this Declaration shall be revised or amended by reference to its title or number only. Proposals to amend existing provisions of this Declaration shall contain the full text of the provision to be amended; new words inserted in the text shall be underlined; and deleted.words shall be lined through with hyphens. However, if the proposed change is so extensive that this procedure would hinder, rather than assist, the understanding of the proposed amendment, it is not necessary to use underlining and hyphens as indicators of words added or deleted, but, instead, a notation must be inserted immediately preceding the proposed amendment in substantially the following language: "Substantial rewording of Declaration. See provision for present text." Nonmaterial errors or omissions in the amendment process shall not invalidate an otherwise properly adopted amendment. 7. Maintenance and Repairs. 7.1 Units. All maintenance, repairs and replacements of, in or to any Unit, whether structural or nonstructural, ordinary or extraordinary, including, without limitation, maintenance, repair and replacement of screens, windows, the interior side of the entrance door and all other doors within or affording access to a Unit, and the electrical (including wiring), plumbing (including fixtures and connections), heating and air-conditioning equipment, fixtures and outlets, appliances, carpets and other floor coverings, all interior surfaces and the entire interior of the Unit lying within the boundaries of the -Unit or other property belonging to the Unit Owner, shall be performed by the Owner of such Unit at the Unit Owner's sole Cost and expense, except as otherwise expressly provided to the contrary herein. Notwithstanding the foregoing, any Common Elements located within the Unit shall be maintained by the Association. 7.2 Common Elements. Except to the extent expressly provided to the contrary herein, all maintenance, repairs and replacements in or to the Common Elements and the Residential Limited Common Elements shall be performed by the Association, including, without limitation, any Common Elements located within the boundaries of the Units. The cost and expense of such maintenance, repairs and replacements, shall be charged to all Unit Owners as a Common Expense, except (i) to the extent arising from or necessitated by the negligence, misuse or DECLARATION OF CONDOMINIUM neglect of specific Unit Owners, in which case such cost and expense shall be .paid solely by such Unit Owners; (ii) with respect to the Residential Limited Common Elements, as to which, anything herein to the contrary notwithstanding, all costs and expenses shall be borne solely by the Residential Unit Owners; or (iii) to the extent proceeds of insurance are made available therefor. 7.3 Specific Unit Owner Responsibility. The obligation to maintain and repair the following specific items shall be the responsibility of the Unit Owners, individually, and not the Association, without regard to whether such items are included within the boundaries of the Units or are Limited Common Elements: (a) where a Limited Common Element consists of a balcony, terrace or lanai, the Unit Owner who has the right to the exclusive use of said balcony, terrace, or lanai shall be responsible for the maintenance, care and preservation of the finished surfaces of floors within said areas, if any, the fixed and/or sliding glass door(s) in the entrance way(s) or other portions of said area, if any, the wiring, electrical outlet(s) and fixtures) thereon, if any, the replacement of light bulbs, if any, as well as for the general maintenance and appearance of such areas, and the insurance of all contents thereon. Notwithstanding the foregoing, the Association shall only be responsible for the structural maintenance, repairs and replacement of all such balconies, terraces and lanais with the owner of the Unit to which they are appurtenant responsible for the general maintenance and appearance of such areas, as well as the insurance of all contents thereon. The approval requirements set forth in Section 9.1 of this Declaration shall be applicable to any proposed improvements to such Limited Common Elements. The Unit Owner shall also maintain, repair and replace, at its sole cost and expense, all portions of any hurricane shutter(s), including such portion of the Common Elements, if any, to which the hurricane shutter(s) is attached (in the event the hurricane shutter(s) is attached to any Common Element, the Common Element to which the hurricane shutter(s) is attached shall become a Limited Common Element upon the attachment of said hurricane shutter(s), the maintenance, repair and replacement of which shall be the responsibility of the Unit Owner). (b) Storage space, if applicable. (c) Where a Limited Common Element consists of a roof, the Association shall be responsible for the maintenance, care and preservation, and as necessary, replacement of said roof. (d) Except as provided in Section 3.3(c), any additions, alterations or improvements to Units or Limited Common Elements shall be subject to the consents and approvals required in Section 9 of this Declaration. 7.4 Reporting to the Association. No Unit Owner shall operate, maintain, repair or replace any portion of the Condominium Property to be .operated, maintained, repaired and/ or replaced by the Association, or the Association Property, without DECLARATION OF CONDOMINIUM -_29- first obtaining written approval from the Association. Each Unit Owner shall promptly report to the Association or any applicable management company any defects or need for repairs, maintenance, or replacements, the responsibility for which is that of the Association. 7.5 Authorization to Enter. Whenever it is necessary to enter any Unit for the purpose of performing any maintenance, repair or replacement of any Common Elements or any other Unit, or for making emergency repairs necessary to prevent damage to any Common Elements or to any other Unit, the Owner of the Unit shall permit the Association or persons authorized by it to enter the Unit for such purposes, provided that such entry may be made only at reasonable times and with reasonable advance notice, except that in the case of an emergency no advance notice will be required. Any damage resulting from any such entry shall be a Common Expense, except where such entry is required in order to repair a Unit, in which event the Unit Owner will be responsible for such damage. To facilitate entry in the event of any emergency, the owner of each Unit shall deposit a key to the service entry door of such Unit with the Association. 7.6 Damage Responsibility. Each Unit Owner and resident shall be liable for any damage to the Common Elements, or any Limited Common Elements, or any other Unit, caused by the Unit Owner or by any resident of his Unit, or by any guest or invitee thereof, or caused by fire, leaking water, or other cause emanating from the Unit Owner's Unit, to the extent the cost of repairing any such damage is not paid by insurance obtained by the Association. Any maintenance, repair or replacement which was necessitated by the failure of a Unit Owner or by any of its family, tenants, guests or invitees, to abide by their obligations hereunder, or was caused by the willful or negligent act of a Unit Owner, its family, tenants, guests or invitees, shall be effected by the Association at said Unit Owner's sole expense and a Special Charge therefor shall be made against its Unit; and (b) if the Association determines the Unit Owner has failed to abide by its obligations hereunder, and, to the extent necessary to prevent damage to the Common Elements or to any Unit, the Association may, but shall not be obligated to, perform any maintenance, repair or replacement to any portions of a Unit or the Improvements thereon for which the Unit Owner is responsible, at said Unit Owner's sole expense, and a Special Assessment therefor shall be made against such Unit. 7.7 Common Elements and Association Property. Except to the extent (i) expressly provided to the contrary herein, or (ii) where proceeds of insurance are made available therefor, all maintenance, repairs and replacements in or to the Common Elements (other than those Limited Common Elements to be maintained by the Unit Owners as provided above) and Association Property shall be performed by the Association and the cost and expense thereof shall be assessed to all Unit Owners as a Common Expense, except to the extent arising from or necessitated by the negligence, misuse or neglect of specific Unit Owners, in which case such cost and expense shall be a Special Charge against such units pursuant to Section 13.2(a) hereof. No Unit Owner shall operate, maintain, repair or replace any portion of the Condominium Property to be operated, maintained, repaired and/or replaced by the Association, or the Association Property, without first obtaining written approval from the DECLARATION OF CONDOMINIUM -_21- Association. Each Unit Owner shall promptly report to the Association, or to any applicable management company, any defects or need for repair, maintenance, or replacements, the responsibility for which is that of the Association. 7.8 Exception for Casualty oge. Notwithstanding anything in this Section 7 to the contrary, in the event any portion of a Unit, Limited Common .Element or Common Element required to be maintained by the Association is damaged or destroyed by fire, hurricane or other casualty covered by property insurance which the applicable Unit Owner maintains and which actually covers such damage or destruction, the Association may require the Unit Owner to be responsible for payment of the costs incurred by the Association in repairing and restoring any such damage. 8. Additions, Alterations or Improvements by the Association. Whenever in the judgment of the Board of Directors, the Common Elements, the Association Property, or any part of either, shall require capital additions, alterations or improvements (as distinguished from repairs and replacements) costing in excess of $100,000 in the aggregate in any calendar year, the Association may proceed with such additions, alterations or improvements only if the making of such additions, alterations or improvements shall have been approved by a majority of the Unit Owners represented at a meeting at which a quorum is attained. Any such additions, alterations or improvements to such Common Elements or Association Property shall constitute a part of the Common Expenses and shall be assessed to the Unit Owners as Common Expenses. For purposes of this section, "aggregate in any calendar year' shall include the total debt incurred in that year, if such debt is incurred to perform the above-stated purposes, regardless of whether the repayment of any part of that debt is required to be made beyond that year. 9. Additions, Alterations or Improvements. 9.1 By Unit Owners/Consent of the Board of Directors. No Unit Owner shall make any addition, alteration or improvement in. or to his Unit or to any Limited Common Element, the Common Elements or the Association Property, which alters the exterior appearance thereof, which could in any way affect the structural, electrical, plumbing or mechanical systems of the Building, or which otherwise requires the approval of the Association pursuant to Section 17 of this Declaration, without the prior written consent of the Board of Directors. Without limiting the generality of the foregoing, no penetration shall be made in any roof or ceiling slabs, and no post tension cabling shall be disturbed or altered in any way, without the prior written consent of the Board of Directors; (ii) the installation of any heavy object is permitted only with the prior written consent of the Board pursuant to Section 17.11 hereof; and (iii) hard and/or heavy surface floor coverings may not be installed in certain portions of a Unit, without the prior written consent of the Association pursuant to Section 17.11 hereof. To the fullest extent permitted under Applicable Law, applicable warranties of the Developer and its contractors, if any, shall be voided by violations of these requirements. The Board shall have the obligation to answer any written request by a Unit Owner for approval of any such addition, alteration or improvement within thirty (30) days after such request and all additional information requested is received, DECLARATION OF CONDOMINIUM -_22- and the failure to do so within the stipulated time shall constitute the Board's consent. The proposed additions, alterations and improvements by the Unit Owners shall be made in compliance with all laws, rules, ordinances and regulations of all governmental authorities having jurisdiction, and with any conditions imposed by the Association with respect to design, structural integrity, aesthetic appeal, construction details, lien protection or otherwise. Once approved by the Board of Directors, such approval may not be revoked, unless the work is not completed within one (1) year from the date of such approval. A Unit Owner making or 'causing to be made any such additions, alterations or improvements agrees, and shall be deemed to have agreed, for such Owner, and his heirs, personal representatives, successors and assigns, as appropriate, to hold the Association, the Board of Directors, or any officer, agent or Committee thereof, the Developer and all other Unit Owners, harmless from and to indemnify them for, any liability or damage to the Condominium Property and expenses arising therefrom. Without limiting the generality of the foregoing, any Unit Owner proposing to install any such additions, alterations or improvements within his Unit or the Limited Common Elements shall, if required by the Board of Directors, submit to it a summary of the 'liability insurance coverage to be obtained for such improvement. From and after the time the installation of the improvement is commenced, and if required by the Board of Directors, the Unit Owner and his heirs, successors and assigns shall at all times maintain such insurance coverage under the same terms and in the same amounts as those originally approved by the Board of Directors. Without limiting the generality of Section 11.2 hereof, neither the Association, the Board of Directors, any Committee, member, director, officer, agent or employee thereof, the Developer or manager nor any of their respective directors, officers, Committees, employees, contractors, agents or affiliates, shall be liable for any injury or damage caused by any defects, unsafe conditions or other matters arising from the use (be it authorized or unauthorized) of the afore-described improvements, notwithstanding any approvals given by any of the aforesaid parties as to the installation of such improvements. In the event that the foregoing sentence is ultimately held to be unenforceable or otherwise not effective, the Unit Owner, his lessees and/or successors in title shall indemnify and hold harmless the Association, its Board of Directors, and the Developer, and all of their respective directors, committee members, officers, employees, contractors, agents and affiliates, for and from all manners of action, claims, judgments, and other liabilities in any way whatsoever connected with any such improvements contemplated herein. The foregoing insurance and indemnity provisions shall also apply to each Owner and occupant of the applicable Unit other than the Developer even if any such improvement is installed by the Developer. The Board of Directors shall, from time to time, establish specifications for hurricane shutters and other hurricane protection which comply with the .applicable building codes, and shall establish permitted color(s), type(s), style(s), dimension(s), material(s) and installation requirements for hurricane shutters and other hurricane protection. Subject to the provisions hereof, the Association shall DECLARATION OF CONDOMINIUM -_23- approve the installation or replacement of hurricane shutters and other hurricane protection conforming to the Board's specifications. The Association may condition any such proposed improvement upon, among other things: (i) a reasonable damage deposit being posted with the Association, by the party authorizing work to be done, for protection against damage which may result to the Common Elements or other Units; and/or (ii) a certificate of liability and worker's compensation insurance being provided to the Association, naming the Association.as an insured thereunder, as to each party to perform such work. 9.2 Improvements, Additions or Alterations by Developer. Anything to the contrary notwithstanding, the foregoing restrictions of this Section 9 shall not apply to Developer-owned Units. The Developer shall have the additional right, without the consent or approval of the Board of Directors or other Unit Owners, to (a) make alterations, additions or improvements, structural and non-structural, interior and exterior, ordinary and extraordinary, in, to and upon the roof top or any Unit owned by it and any Limited Common Elements appurtenant thereto (including, without limitation, the removal of walls, floors, ceilings and other structural portions of the Improvements), or both of them; and (b) expand, alter or add to all or any part of the recreational facilities. Any amendment to this Declaration required by a change made by the Developer pursuant to this Section 9.2 shall be adopted in accordance with Section 16.7 and Section 10 of this Declaration. To the extent that an amendment hereunder changes the configuration or size of any Unit in any material fashion, materially alters or modifies the appurtenances to the Unit or changes the proportion or percentage by which the Owner of the Unit shares the Common Expenses or owns the Common Surplus, such an amendment shall require the consent of the record owner of the Unit, all record owners of liens on the affected Unit, as well as a majority of total voting interests in addition to any consents required by any governmental entity. 9.3 Improvements, Additions or Alterations bV Commercial Unit Owners. Anything to the contrary notwithstanding, the foregoing restrictions. of this Section 9 shall not apply to Commercial Units. Additionally, each Commercial Unit Owner shall have the right, without the consent or approval of the Association, or any other Unit Owner or other party, other than the applicable governmental authorities, if and to the extent such approvals are required, to make alterations, additions or improvements, structural and non-structural, interior or exterior, ordinary or extraordinary, in, to and upon any Commercial Unit owned by it and any Limited Common Element terraces, patios, lanais or other areas appurtenant thereto, including, without limitation, the removal of walls, floors, decorative ceilings and other portions thereof, the installation or placement of signage, equipment, furniture, tables, chairs and other furnishings or equipment on any patios and/or terraces appurtenant thereto. The Owner of the Commercial Unit to which any such additions, alterations or improvements have been made, and its successors and assigns, shall indemnify, defend and hold harmless the Association, the Developer and all other Unit Owners from any and all claims, losses, damages and expenses arising from such alterations, additions or improvements, and shall be solely responsible for the maintenance, repair and insurance thereof. DECLARATION OF CONDOMINIUM -_24 Notwithstanding the foregoing, any additions, alterations or improvements must comply with Applicable Law. 9.4 Life Safety Systems. Neither any Unit Owner nor the Association shall make any additions, alterations or improvements to the Life Safety Systems without the prior consent of the appropriate governmental authority. No lock, padlock, bar, 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 emergency signage shall not be altered or removed by any Unit Owner or by the Association without the Association obtaining the consent of the applicable governmental authority having jurisdiction over same. All means of egress must permit unobstructed travel at all times. No barrier including, but not limited to personal property, shall impede the free movement ingress and egress. 10. Changes in Developer-Owned Units. Without limiting the generality of the provisions of paragraph 9.2 above, and anything to the contrary in the Declaration notwithstanding, the Developer shall have the right, without the vote or consent of the Association or Unit Owners, to (i) make alterations, additions or improvements in, to and upon Units owned by the Developer, whether structural or no-structural, interior or exterior, ordinary or extraordinary; (ii) change the layout or number of rooms in any Developer-owned Units; (iii) change the size of Developer-owned Units, by combining separate Developer-owned Units into a single apartment (although being kept as two separate legal Units), or otherwise; and (iv) reapportion among the Developer-owned Units affected by such change in size pursuant to the preceding clause, their appurtenant interests in the Common Elements and share of the Common Surplus and Common Expenses; provided, however that the percentage interest in the Common Elements and share of the Common Surplus and Common Expenses of any Units (other than the affected Developer-owned Units) shall not be changed by reason thereof unless the Owners of such Units shall consent thereto and, provided further, that Developer shall comply with all laws, ordinances and regulations of all governmental authorities having jurisdiction in so doing. In making the above alterations, additions and improvements, the Developer may relocate and alter Common Elements adjacent to or near such Units, incorporate portions of the Common Elements into adjacent Units and incorporate Units into adjacent Common Elements, provided that the Owners of such Units consent thereto and that any such relocation and alteration does not materially adversely affect the market value or ordinary use of Units owned by Unit Owners other than the Developer. Any amendments to this Declaration required by changes of the Developer made pursuant to this Section 10, shall be effected by the Developer alone pursuant to Section 6.6, without the vote or consent of the Association or Unit Owners (or their mortgagees) required, except to the extent that any of the same constitutes a Material Amendment, in which event, the amendment must be approved as set forth in Section 6.3 above. Without limiting the generality of Section 6.6 hereof, the provisions of this section may not be added to, amended or deleted without the prior written consent of the Developer. To the extent that an amendment hereunder changes the configuration or size of any Unit in any material fashion, materially alters or modifies the appurtenances to the Unit or changes the proportion or percentage by which the Owner of the Unit shares the Common Expenses or owns the Common Surplus, such an amendment shall require the DECLARATION OF CONDOMINIUM -_25- consent of the record owner of the Unit, all record owners of liens on the affected Unit, and a majority of total voting interests, unless required by any governmental entity. 11. Operation of the Condominium by the Association. 11.1 Powers and Duties. The Association shall be the entity responsible for the operation of the Condominium and the Association Property. The powers and duties of the Association shall include those set forth in the Articles of Incorporation and By-Laws (respectively Exhibits "3" and 'A" annexed hereto), as amended from time to time. In addition, the Association shall have all the powers and duties set forth in the Act, as well as all powers and duties granted to or imposed upon it by this Declaration, including, without limitation: (a) The irrevocable right to have access to each Unit from time to time during reasonable hours as may be necessary for the maintenance, repair or replacement of any Common Elements, Limited Common Elements or any portions of a Unit to be maintained by the Association, or at any time and by force, if necessary, to prevent damage or to make emergency repairs to the Common Elements, the Association Property or to a Unit or Units. (b) The power to make and collect Assessments, Charges and other levies against Unit Owners and to require, administer, lease, maintain, repair and replace the Common Elements and Association Property. (c) The duty to maintain accounting records pursuant to accepted accounting practices, which shall be open to inspection by Unit Owners or their authorized representatives at reasonable times upon prior request. (d) The power to contract for the management and maintenance of the Condominium Property and to authorize a management agent (who may or may not be an affiliate of the Developer) to assist the Association in carrying out its powers and duties by performing such functions as the submission of proposals, collection of Assessments and Charges, preparation of records, enforcement of rules and maintenance, repair and replacement of Common Elements with such funds as shall be made available by the Association for such purposes. The Association and its officers shall, however, retain at all times the powers and duties granted in this Declaration, the Articles, By-laws, rules and regulations and the Act, including, but not limited to, the making of Assessments, promulgation of rules and regulations and execution of contracts on behalf of the Association. (e) Subject to the, provisions of Section 8, the power to borrow money, execute promissory notes and other evidences of indebtedness and to give as security therefor mortgages and security interests in property owned by the Association, if any, provided that such actions are approved by a majority of the entire membership of the Board of Directors and a majority of the Units represented at a meeting at which DECLARATION OF CONDOMINIUM _?6-- a quorum has been attained, or by such greater percentage of the Board or Unit Owners as may be specified in the By-Laws with respect to certain borrowing, provided that no such action shall be permitted. while the Developer owns any Unit without the prior written consent of the Developer. (f) The power to adopt and amend rules and regulations concerning the details of the operation and use of the Condominium Property. (g) The power to charge a fee for the exclusive use of any Common Elements (other than Limited Common Elements) or Association Property to any Unit Owner being granted, by the Association, a right to such exclusive use. (h) The power to acquire, convey, lease and encumber real and personal property. Personal property shall be acquired, conveyed, leased or encumbered upon a majority vote of the Board of Directors, subject to Section 8 hereof. Real property shall be acquired upon a majority vote of the Board of Directors; provided that the requirements of Section 8 pertaining to the Unit Owners' approval of costs in excess of the threshold amount stated therein (including the proviso regarding the debt incurred) shall also apply to the acquisition of real property; provided, further, however, that the acquisition of a Unit as a result of a foreclosure of the lien for Assessments or Charges (or by deed in lieu of foreclosure) shall be made upon the majority vote of the Board, regardless of the price for same and the Association, through its Board, has the power to hold, lease, mortgage or convey the acquired Unit without requiring the consent of Unit Owners. (i) All of the powers which a corporation not for profit in the State of Florida may exercise pursuant to this Declaration, the Articles of Incorporation, the By-Laws, Chapters 607 and 617, Florida Statutes and the Act, in all cases except as may be expressly limited or restricted therein. In the event of conflict among the powers and duties of the Association or the terms and provisions of this Declaration, this Declaration shall take precedence over the Articles of Incorporation, By-Laws and applicable rules and regulations, all as amended from time to time. Notwithstanding anything in this Declaration to the contrary, the Association shall at all times be the entity having ultimate control over the Condominium, to the extent required under the Act. 11.2 Limitation Upon Liability of Association. Notwithstanding the duty of the Association to maintain and repair parts of the Condominium Property, the Association shall not be liable to Unit Owners for injury or damage, other than for the cost of maintenance and repair required hereunder, caused by any latent condition of the Condominium Property. Further, the Association shall not be liable for any such injury;or damage caused by defects in design or workmanship or any other reason connected with any additions, alterations or improvements or other activities done by or on behalf of any Unit Owners regardless of whether or DECLARATION OF CONDOMINIUM -_27- not same shall have been approved by the Association pursuant to Section 9.1 hereof. The Association's rights of review and approval of plans and other submissions under this Declaration are intended solely for the benefit of the Association. Neither the Association nor any of its officers, directors, committees, employees, agents, contractors, consultants or attorneys shall be liable to any Owner or any other person by reason of mistake in judgment, failure to point out or correct deficiencies in any plans or other submissions, negligence or any other misfeasance, malfeasance or non-feasance arising out of or in connection with the approval or disapproval of any plans or submissions. Anyone submitting plans hereunder, by the 'submission of same, and any Owner, by acquiring title to his Unit, agrees not to seek damages from the Association arising out of the Association's review of any plans hereunder. Without limiting the generality of the foregoing, the Association shall not be responsible for reviewing (nor shall its review of any plans be deemed approval of) any plans from the standpoint of structural safety, soundness, workmanship, materials, usefulness, conformity with building or other codes or industry standards or compliance with governmental requirements. Further, each Owner (including the successors and assigns) agrees to indemnify and hold the Association harmless from and against any and all costs, claims (whether rightfully or wrongfully asserted), damages,, expenses and liabilities whatsoever (including, without limitation, reasonable attorneys' fees and court costs at all trial and appellate levels), arising out of any review of plans by the Association hereunder. The Association also shall not be liable to any Unit Owner or lessee or to any other person or entity for any property damage, theft, personal injury, death or other liability, including (without limitation) any liability for any damaged or stolen vehicles or other personal property left therein or, elsewhere within the Common Elements, or on the grounds that the Association did not obtain or maintain insurance (or carried insurance with any particular deductible amount) for any particular matter where: (i) such insurance is not required hereby; or (ii) the Association could not obtain such insurance at reasonable costs or upon reasonable terms. 11.3 Restraint Upon Assignment of Shares in Assets. The share of a Unit Owner in the funds and assets of the Association cannot be assigned, hypothecated or transferred in any manner except as an appurtenance to the Unit. 11.4 Approval or Disapproval of Matters. Whenever the decision of a Unit Owner is required as to any matter, whether or not the subject of an Association meeting, that decision shall be expressed by the same person who would cast the vote for that Unit if at an Association meeting, unless the joinder of all record Owners of the Unit is specifically required by this Declaration, the Articles, the By-Laws or under Applicable Law. : 11.5 Acts of the Association. Unless the approval or action of Unit Owners, and/or a certain specific percentage of the Board of Directors, is specifically required in this Declaration, the Articles or By-Laws, applicable rules and regulations or Applicable Law, all approvals or actions permitted to be given or taken by the Association shall be given or taken by the Board of Directors, without the consent of Unit Owners, and the Board may so approve and act through the proper officers of the Association without a specific resolution. When an approval or action of the Association is permitted to be given or taken hereunder or DECLARATION OF CONDOMINIUM 28- thereunder, such action or approval may be conditioned in any manner the Association deems appropriate or the Association may refuse to take or give such action or approval without the necessity of establishing the reasonableness of such conditions or refusal. 11.6 Effect on Developer. Notwithstanding anything herein to the contrary, if the Developer holds one or more Units for sale in the ordinary course of business, none of the following actions may be taken without the prior written approval of Developer. (a) Assessment of the Developer as a Unit Owner for capital improvements, or for transitional engineers or attorneys or for legal expenses incurred in any other action that would be detrimental to the sales of Units by the Developer, provided however, that an increase in periodic Assessments for Common Expenses, without discrimination against the Developer, shall not be deemed to be detrimental to its sales of Units; (b) Any action by the Association that would, in the Developer's sole and exclusive opinion, be detrimental to the construction, decorating, design, marketing, promotion or sale of Units by the Developer; provided, however, that an increase in periodic Assessments for Common Expenses without discrimination against the Developer shall not be deemed to be detrimental to the sale of Units. 12. Determination of Common Expenses and Fixing of Assessments Therefor. The Board of Directors shall from time to time, and at least annually, prepare a budget for the Condominium, determine the amount of Assessments payable by the Unit Owners to meet.the Common Expenses and allocate and assess such expenses among the Unit Owners in accordance with the provisions of this Declaration and the By-laws. The Board of Directors shall advise all Unit Owners promptly in writing of the amount of the Assessments payable by each of them as determined by the Board of Directors as aforesaid and shall furnish copies of the budget, adopted from time to time, on which such Assessments are based, to all Unit Owners and (if requested in writing) to their respective mortgagees. The Common Expenses shall include the expenses of and reserves for (if and to the extent required by, and not waived in accordance with Applicable Law or established by the Association), the operation, maintenance, repair and replacement of the Condominium Property and/or Association Property, costs of carrying out the powers and duties of the Association and any other expenses designated as Common Expenses by the Act, this Declaration, the Articles or By-Laws, applicable rules and regulations or by the Association. Incidental income to the Association, if any, may be used to pay regular or extraordinary Association expenses and liabilities, to fund reserve accounts, or otherwise as the Board shall designate, subject to change, to cover actual expenses at any time. Any such change shall be adopted consistent with the provisions of this Declaration and the By-Laws. 13. Collection of Assessments.. 13.1 Liability for Assessments and Charges. A Unit Owner, regardless of how title is acquired, including a purchaser at a judicial sale, shall be liable for all DECLARATION OF CONDOMINIUM 29- Assessments coming due while he is the Unit Owner. The grantee shall be jointly and severally liable with the grantor for all unpaid Assessments and Charges against the grantor for his share of the Common Expenses up to the time of the conveyance, without prejudice to any right the grantee may have to recover from the grantor any amounts paid by the grantee. The liability for Assessments may not be avoided by waiver of the use or enjoyment of any Common Elements or by the abandonment of the Unit for which the Assessments are made or otherwise. 13.2 Special and Capital Improvement Assessments and Charges. In addition to Assessments levied by the Association to meet the Common Expenses of the Condominium and the Association, the Board of Directors may levy "Special Assessments" and "Capital Improvement Assessments" upon the following terms and conditions: (a) "Special Assessments" shall mean and refer to a charge against each Owner and his Unit, representing a portion of the costs incurred by the Association for specific purposes of a nonrecurring nature which are not in the nature of capital improvements or representing funds otherwise required by the Association and not produced by the regular Assessments received by the Owners. (b) "Capital Improvement Assessments" shall mean and refer to a charge against each Owner and his Unit, representing a portion of the costs incurred by the Association for the acquisition, installation, construction or replacement (as distinguished from repairs and maintenance) of any capital Improvements located or to be located within the Limited Common Elements or Association Property. (c) Special Assessments and Capital Improvement Assessments may be levied by the Board and shall be payable in lump sums or installments, in the discretion of the Board; provided that, if such Special Assessment or Capital Improvements Assessments, in the aggregate in any year, exceed $125,000.00 or cause the total Assessments levied to exceed 115% of the Assessments for the preceding calendar year, the Board must obtain approval of a majority of the Units represented at a meeting at which a quorum is attained. 13.3 Default in Payment of Assessments for Common Expenses and Charges. Assessments and Charges, and installments thereof, not paid within ten (10) days from the first day of the period in which they become due shall bear interest at the rate of eighteen percent (18%) per annum, or the highest rate permitted by law, whichever is less. The Association may also charge an administrative late fee, in addition to such interest, in an amount not to exceed the highest amount provided for in the Act (as it may be amended from time to time). The Association has a lien on each Condominium Parcel to secure the payment of Assessments, together with any Charges constituting interest and reasonable costs and attorney's fees incurred by the Association incident to the collection of the Assessments or enforcement of the lien. Except as otherwise provided in the Act, and as set forth below, the lien for Assessments and Charges described above is DECLARATION OF CONDOMINIUM _30- effective from, and shall relate back to the recording of this Declaration. However, as to first mortgages of record, the lien for Assessments is effective from and after recording of a claim of lien in the Public Records of the County. Notwithstanding anything herein to the contrary, Charges other than interest and reasonable attorney's fees and costs relating to the collection process shall not be Common Expenses, shall not be collectible as Assessments, and shall not be secured by the Association's lien rights arising pursuant to the Act. The Association's lien for Charges is created solely pursuant to this Declaration and is effective only from and after the recording of a claim of lien by the Association. The lien shall be evidenced by the recording of a claim of lien in the Public Records of the County, stating the description of the Unit, the name of the record Unit Owner, the name and address of the Association, the amount due and the due dates. The claim of lien shall not be released until all sums secured by it (or such other amounts as to which the Association shall agree by way of settlement) have been fully paid or until it is barred by law. No such .lien shall be effective longer than one (1) year after the claim of lien was recorded unless, within that time, an action to enforce the lien is commenced. The one-year period shall automatically be' extended for any length of time during which the Association is prevented from filing a foreclosure action by an automatic stay resulting from a bankruptcy petition filed by the Unit Owner or any other person claiming an interest in the parcel. The claim of lien shall secure (whether or not stated therein) all unpaid Assessments and Charges of interest and all reasonable costs and attorneys' fees incurred by the Association incident to the collection process. A claim of lien shall be signed and acknowledged by an officer or agent of the Association. Upon payment, the person making the payment is entitled to a satisfaction of the lien in recordable form. The Association may bring an action in its name to foreclose a lien for unpaid Assessments or Charges in the manner a mortgage of real property is foreclosed and may also bring an action at law to recover a money judgment for the unpaid Assessments and Charges without waiving any claim of lien. As an additional right and remedy of the Association, upon default in the payment of Assessments as aforesaid and after thirty (30) days' prior written notice to the applicable Unit Owner and the recording of a claim of lien, the Association may declare the balance of the Assessment installments for the current budget year to be accelerated and immediately due and payable. In the event that the amount of such installments changes during the period for which Assessments were accelerated, the Unit Owner or the Association, as appropriate, shall be obligated to pay or reimburse to the other the amount of increase or decrease within ten (10) days of same taking effect. 13.4 Notice of Intention to Foreclose Lien. No foreclosure judgment may be entered until at least thirty (30) days after the Association gives written notice to the Unit Owner of its intention to foreclose its lien to collect the unpaid Assessments or Charges. If this notice is not given at least thirty (30) days before the foreclosure action is filed, and if the unpaid Assessments or Charges, including those coming due after the claim of lien is recorded, are paid before the entry of a final judgment of foreclosure, the Association shall not recover attorney's fees or costs. The notice must be given by delivery of a copy of it to the Unit Owner or by DECLARATION OF CONDOMINIUM -_31- certified or registered mail, return receipt requested, addressed to the Unit Owner at the last known address, and upon such mailing, the notice shall be deemed to have been given. If after diligent search and inquiry the Association cannot find the Unit Owner or a mailing address at which the Unit Owner will receive the notice, the court may proceed with the foreclosure action and may award attorney's fees and costs as permitted by law. The notice requirements of this subsection are satisfied if the Unit Owner records a Notice of Contest of Lien as provided in the Act. 13.5 First Mortgagees. Any first mortgagee or its successors or assignees who acquire title to a Unit by foreclosure or by deed in lieu of foreclosure or otherwise, is liable for all Assessments which come due while it is the Unit Owner and is jointly and severally liable with the previous Unit Owner for all unpaid Assessments which came due up to the time of the transfer of title. This liability is without prejudice to any rights the first mortgagee or any such other party may have to recover any such sums it may have paid to the Association from the previous Unit Owner. Notwithstanding the foregoing, in no event shall any such first mortgagee or its successors or assigns be liable for more than the Unit's unpaid Assessments which accrued or come due during the six (6) months immediately preceding its acquisition of title to the Unit, and for which payment in full has not been received by the Association, or by one percent (1%) of the original mortgage debt, whichever amount is less. The provisions of this paragraph shall not apply unless the first mortgagee or its successors or assigns joins the Association as a defendant in the foreclosure action. Joinder of the Association is not required if, on the date the complaint is filed, the Association was dissolved or did not maintain an office or agent for service of process at a location which was known to or reasonably discoverable by the mortgagee. The person acquiring title shall pay the amount owed to the Association within thirty (30) days after the transfer of title. Failure to pay the amount owed to the Association when due shall entitle the Association to record a claim of lien against the Unit and proceed in the same manner as provided in this section for unpaid assessments. The foregoing limitation of liability shall apply to any purchase at a foreclosure sale of a first mortgage regardless .of whether the purchaser is the holder of the foreclosed mortgage. A first mortgagee acquiring title to a Unit as a result of foreclosure or deed in lieu thereof may not, during the period of ownership of such Unit, whether or not such Unit is unoccupied, be excused from the payment of some or all of the Assessments coming due during the period of such ownership. 13.6 Certificate of Unpaid Assessments. Within fifteen (15) days after request by a Unit Owner or mortgagee of a Unit, the Association shall provide a certificate stating whether all Assessments, Charges and other monies owed to the Association by the Unit Owner with respect to his Unit have been paid. Any person other than the Unit Owner who relies upon such certificate shall be protected thereby. 13.7 Installments. Regular Assessments shall be collected monthly or quarterly, in advance, at the option of the Association. Initially, Assessments will be collected monthly. DECLARATION OF CONDOMINIUM -_32- 13.8 Application of Payments. Any payments received by the Association from a delinquent Unit Owner for Assessments shall be applied first to any interest accrued by the Association, then to any administrative late fee, then to any costs and reasonable attorney's fees incurred in collection, and then to the delinquent Assessment. Any payments received by the Association from a delinquent Unit Owner for Charges shall be applied first to any interest accrued by the Association, then to any administrative late fee, then to any costs and reasonable attorney's fees incurred in collection, and then to the delinquent Charge. The foregoing shall be applicable notwithstanding any restrictive endorsement, designation or instruction placed on or accompanying a payment. 13.9 Developer Credits. Developer shall be responsible for the payment of its pro rata share of the assessments for all units it owns. Developer may take credits against any unpaid Assessments for monies Developer previously advanced on behalf of the Association. These items shall specifically include, but not be limited to, insurance premiums and utility deposits as well as those items disclosed in the Budget. 14. Insurance. Insurance covering the Condominium Property shall be governed by the following provisions: 14.1 Purchase Custody and Payment. (a) Purchase. All insurance policies described herein covering portions of the Condominium Property shall be purchased by the Association and shall be issued by an insurance company authorized to do business in Florida. (b) Approval. Each insurance policy, the agency and company issuing the policy and the Insurance Trustee (if appointed) hereinafter described shall be subject to any modifications which may be reasonably required by the Primary Institutional First Mortgagee. (c) Named Insured. The named insured shall be the Association, individually, and as agent for the Unit Owners covered by the policy, without naming them, and as agent for their mortgagees, without naming them. The Unit Owners and their mortgagees shall be deemed additional insureds. (d) Custody of Policies and Payment of Proceeds. All policies shall provide that payments for losses made by the insurer shall be paid to the Insurance Trustee (if appointed), and all policies and endorsements thereto shall be deposited with the Insurance Trustee (if appointed). (e) Copies to Mortgagees. One copy of each insurance policy, or a certificate evidencing such policy, and all endorsements thereto, shall be furnished by the Association upon request to each Institutional First Mortgagee who holds a mortgage upon a Unit covered by the policy. Copies or certificates shall be furnished not less than ten (10) days prior to the beginning of the term of the policy, or not less than ten (10) DECLARATION OF CONDOMINIUM _=33- days prior to the expiration of each preceding policy that is being renewed or replaced, as appropriate. (f) Personal Property and Liability. Except as specifically provided herein or by the Act, the Association shall not be responsible to Unit Owners to obtain insurance coverage upon the property lying within the boundaries of their Unit, including, but not limited to, their personal property, or for their personal liability and living expenses and for any other risks not otherwise insured in accordance herewith. 14.2 Coverage. The Association shall use commercially reasonable efforts to maintain insurance covering the following: (a) Casualty. The Condominium Property and all Association Property shall be insured in an amount not less than 100% of the full insurable replacement value thereof, excluding foundation and excavation costs. Such policy shall cover, among other things, all Common Elements and all of the Units within the Condominium including, but not limited to, partition walls, doors, windows, and stairways. Such policy shall not include hurricane shutters, unit floor coverings, wall coverings, ceiling coverings, electrical fixtures, appliances, air conditioner or heating equipment, water heaters, built-in cabinets or personal property. Such policy may also exclude any other property permitted to be excluded from the Condominium's insurance policy pursuant to the Act, as amended from time to time and may contain reasonable deductible provisions as determined by the Board of Directors. Such coverage shall afford protection against loss or damage by fire and other hazards covered by a standard extended coverage endorsement, and such other risks as from time to time are customarily covered with respect to buildings and improvements similar to the Condominium in construction, location and use, including, but not limited to, vandalism and malicious mischief. (b) Liability. Comprehensive general public liability and automobile liability insurance, if applicable, covering loss or damage resulting from accidents or occurrences on or about or in connection with the Insured Property or adjoining driveways and walkways, or any work, matters or things related to the I-nsured Property, with such coverage as shall be required by the Board of Directors of the Association, but with combined single limit liability of not less than $1,000,000 for each accident or occurrence, $100,000 per person and $50,000 property damage, and with a cross liability endorsement to cover liabilities of the Unit Owners as a group to any Unit Owner, and vice versa. The Association may also obtain and maintain liability insurance for its directors and officers and for the benefit of the Association's employees. (c) Workers' Compensation and other mandatory insurance, when applicable. DECLARATION OF CONDOMINIUM -=34 (d) Flood Insurance covering the Common Elements, Association Property and Units if required by the Primary Institutional First Mortgagee or FNMA/FHLMC, or if the Association so elects. (e) Fidelity Insurance if required by the Act or FNMA/FHLMC, covering all persons who control or disburse Association funds, such insurance to be in an amount not less than the greater of(i) the maximum funds that will be in the custody of the Association or its management agent at any one time or (ii) such amounts as may be required, from time to time, under the Act. (f) Association Property. Appropriate additional policy provisions, policies or endorsements extending the applicable portions of the coverage described above to all Association Property, where such coverage is available. (g) Such Other Insurance as the Board of Directors of the Association shall determine from time to time to be desirable. When appropriate and obtainable, each of the foregoing policies shall waive the insurer's right to: (i) subrogation against the Association and against the Unit Owners individually and as a group, (ii) to pay only a fraction of any loss in the event of coinsurance or 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 Association, a member of the Board of Directors of the Association, one or more Unit Owners or as a result of contractual undertakings. Additionally, each policy shall provide that any insurance trust agreement will be recognized, that the insurance provided shall not be prejudiced by any act or omissions of individual Unit Owners that are not under the control of the Association, and that the policy shall be primary, even if a Unit Owner has other insurance that covers the same loss. Every casualty insurance policy obtained by the Association, if required by FNMA/FHLMC, shall have the following endorsements: (i) agreed amount and inflation guard; and (ii) steam boiler coverage (providing at least $50,000 coverage for each accident at each location), if applicable. 14.3 Additional Provisions. All policies of insurance shall provide that such policies may not be canceled or substantially modified without endeavoring to provide at least thirty (30) days' prior written notice to all of the named insureds, including all mortgagees of Units. Prior to obtaining any policy of casualty insurance or any renewal thereof, the Board of Directors shall obtain an appraisal from a fire insurance company, or other competent appraiser, of the full insurable replacement value of the insured Property (exclusive of foundations), without deduction for depreciation, for the purpose of determining the amount of insurance to be effected pursuant to this section. 14.4 Premiums. Premiums upon insurance policies purchased by the Association shall be paid by the Association as a Common Expense, except that the costs of fidelity bonding for any management company employee may be paid by such DECLARATION OF CONDOMINIUM 35- company pursuant to its contract with the Association. Premiums . may be financed in such a manner as the Board of Directors deems appropriate. 14.5 Insurance Trustee; Share of Proceeds. All insurance policies obtained by or on behalf of the Association shall be for the benefit of the Association, the Unit Owners and their mortgagees, as their respective interests may appear, and shall provide that all proceeds covering property losses shall be paid to the Insurance Trustee which may, but need not, be designated by the Board of Directors and which, if so appointed, shall be a bank or trust company in Florida with trust powers, with its principal place of business in the State of Florida. References herein to the Insurance Trustee shall be deemed to apply to the Board of Directors if it fails, or determines not to appoint an Insurance Trustee as provided in Section 14.10 below. The Insurance Trustee shall not be liable for payment of premiums, nor for the renewal or the sufficiency of policies, nor for the failure to collect any insurance proceeds. The duty of the Insurance Trustee shall be to receive such proceeds as are paid and to hold the same in trust for the purposes elsewhere stated herein, and for the benefit of the Unit Owners and their respective mortgagees in the following shares, but shares need not be set forth on the records of the Insurance Trustee: (a) Insured Propert y. Proceeds on account of damage to the Insured Property shall be held in undivided shares for each Unit Owner, such shares being the same as the undivided shares in the Common Elements appurtenant to each Unit, provided that if the Insured Property so damaged includes property lying within the boundaries of specific Units, that portion of the proceeds allocable to such property shall be held as if that portion of the Insured Property were Optional Property as described in paragraph (b) below. In the event the Insured Property so damaged includes property designated Residential Limited Common Elements that portion of proceeds shall be held in undivided shares for each Residential Unit Owner, such shares being the same as the undivided shares in the Residential Limited Common Elements as set forth in Exhibit"2-13". (b) Optional Property. Proceeds on account of damage solely to Units and/or certain portions or all of the contents thereof not included in the Insured Property (all as determined by the Association in its sole discretion) (collectively the "Optional Property"), if any, is collected by reason of optional insurance which the Association elects to carry thereon (as contemplated herein), shall be held for the benefit of Owners of Units or other portions of the Optional Property damaged in proportion to the cost of repairing the damage suffered by each such affected Owner, which cost and allocation shall be determined in the sole discretion of the Association. (c) Mortgagees. No mortgagee shall have any right to determine or to participate'in the determination as to whether or not any damaged property shall be reconstructed or repaired, and no mortgagee shall have any right to apply or have applied to the reduction of a mortgage debt any insurance proceeds, except for actual distributions thereof DECLARATION OF CONDOMINIUM —36- made to the Unit Owner and mortgagee pursuant to the provisions of this Declaration. 14.6 Distribution of Proceeds. Proceeds of insurance policies received by the. Insurance Trustee shall be distributed to or for the benefit of the beneficial owners thereof in the following manner: (a) Expenses of the Trust. All expenses of the Insurance Trustee shall be first paid or provision shall be made therefor. (b) Reconstruction or Repair. If the damaged property for which the proceeds are paid is to be repaired or reconstructed, the remaining proceeds shall be paid to defray the cost thereof as elsewhere provided herein. Any proceeds remaining after defraying such costs shall be distributed to the beneficial owners thereof, remittances to Unit Owners and their mortgagees being payable jointly to them. (c) Failure to Reconstruct or Repair. If it is determined in the manner elsewhere provided that the damaged property for which the proceeds are paid shall not be reconstructed or repaired, the remaining proceeds shall be allocated among the beneficial owners as provided in Section 14.5 above, and distributed first, to all Institutional First Mortgagees in an amount sufficient to pay off their mortgages; second, to the Association for any due and unpaid Assessments or Charges; and third, the balance, if any, to the beneficial owners. (d) Certificate. In making distributions to Unit Owners and their mortgagees, the Insurance Trustee (if appointed) may rely upon a certificate of the Association made by its President and Secretary as to the names of the Unit Owners and their mortgagees and their respective shares of the distribution. 14.7 Association as Agent. The Association is hereby irrevocably appointed as agent and attorney-in-fact for each Unit Owner and for each owner of a mortgage or other lien upon a Unit and for each owner of any other interest in the Condominium Property to adjust all claims arising under insurance policies purchased by the Association and to execute and deliver releases upon the payment of claim. 14.8 Unit Owners' Personal Coverage. Unless the Association elects otherwise, the insurance purchased by the Association shall not cover claims against an Owner due to accidents occurring within his Unit, or casualty or theft loss to the contents of an Owner's Unit. It shall be the obligation of the individual Unit Owner, if such Owner so desires, to purchase and pay for all insurance as to all such risks and as to any other risks not covered by insurance carried by the Association, including insurance for personal belongings located on Limited Common Elements. DECLARATION OF CONDOMINIUM -_37- 14.9 Benefit of Mortgagees. Certain provisions in this Section 14 entitled "Insurance" are for the benefit of mortgagees of Units and may be enforced by such mortgagees. 14.10 Appointment of Insurance Trustee. The Board of Directors shall have the option in its discretion of appointing an Insurance Trustee hereunder. If the Association fails or elects not to appoint an Insurance Trustee, the Association will perform directly all obligations imposed upon the Insurance Trustee by this Declaration. Fees and expenses of any Insurance Trustee.are Common Expenses. 14.11 Presumption as to Damaged Property. In the event of a dispute or lack of certainty as to whether damaged property constitutes a Unit(s), Limited Common Elements or Common Elements, such property shall be presumed to be Common Elements. 15. Reconstruction or Repair After Fire or Other Casualty. 15.1 Determination to Reconstruct or Repair. Subject to the immediately following paragraph, in the event of damage to or destruction of the Insured Property (and the Optional Property, if insurance has been obtained by the Association with respect thereto) as a result of fire or other casualty, the Board of Directors shall arrange for the prompt repair and restoration of the Insured Property (and the Optional Property, if insurance has been obtained by the Association with respect thereto) and the Insurance Trustee (if appointed) shall disburse the proceeds of all insurance policies to the contractors engaged in such repair and restoration in appropriate progress payments. If 75% or more of the Insured Property (and the Optional Property, if insurance has been obtained by the Association with respect thereto) is substantially damaged and if Unit Owners owning 80% of the applicable interests in the Common Elements duly and promptly resolve not to proceed with the repair or restoration thereof, and a Majority of Institutional First Mortgagees approve such resolution, the Condominium Property will not be repaired and shall be subject to an action for partition instituted by the Association, any Unit Owner, mortgagee.or lienor, as if the Condominium Property were owned in common, in which event the net proceeds of insurance resulting from such damage or destruction shall be first applied to demolish any remaining improvements, and shall thereafter be divided among all the Unit Owners in proportion to their respective interests in the Common Elements (with respect to proceeds held for damage to the Insured Property other than that portion of the Insured Property lying within the boundaries of the Unit), and among affected Unit Owners in proportion to the damage suffered by each such affected Unit Owner, as determined in the sole discretion of the Association (with respect to proceeds held for damage to the Optional Property, if any, and/or that portion of the Insured Property lying within the boundaries of the Unit); provided, however, that no payment shall be made to a Unit Owner until there has first been paid off out of his share of such fund all mortgages, liens and Assessments and Charges on his Unit in the order of priority of such mortgages, liens, Assessments and Charges. r DECLARATION OF CONDOMINIUM -=38- Whenever in this section the words "promptly repair" are used, it shall mean that repairs are to begin not more than sixty (60) days from the date the Insurance Trustee (if appointed) or the Association notifies the Board of Directors and Unit Owners that it holds proceeds of insurance on account of such damage or destruction sufficient to pay the estimated cost of such work, or not more than ninety (90) days after the Insurance Trustee (if appointed) or the Association notifies the Board of Directors and the Unit Owners that such proceeds of insurance are insufficient to pay the estimated costs of such work, provided however, that the Board may, in its sole discretion, grant written extensions for such periods as the Board determines. The Insurance Trustee (if appointed) may rely upon a certificate of the Association made by its President and Secretary to determine whether or!not the damaged property is to be reconstructed or repaired. 15.2 Plans and Specifications. Any reconstruction or repair must be made substantially in accordance with the plans and specifications for the original improvements and then applicable building and other codes; or if not, then in accordance with the plans and specifications approved by the Board of Directors or the Association and then applicable building and other codes, and, if the damaged property which is to be altered is the Optional Property, by the Owners of not less than 80% of the applicable interests in the Common Elements, as well as the Owners of all Units and other portions of the Optional Property (and their respective mortgagees)the plans for which are to be altered. 15.3 Special Responsibility. If the damage is only to those parts of the Optional Property for which the responsibility of maintenance and repair is that of the respective Unit Owners, then the Unit Owners shall be responsible for all necessary reconstruction and repair, which shall be effected promptly and in accordance with guidelines established by the Board of Directors (unless insurance proceeds are held by the Association with respect thereto by reason of the purchase of optional insurance thereon, in which case the Association shall have the responsibility to reconstruct and repair the damaged Optional Property, provided the respective Unit Owners shall be individually responsible for any amount by which the cost of such repair or reconstruction exceeds the insurance proceeds held for such repair or reconstruction on a Unit by Unit basis, as determined in the sole discretion of the Association). In all other instances, the responsibility for all necessary reconstruction and repair shall be that of the Association. (a) Disbursement. The proceeds of insurance collected on account of a casualty, and the sums collected from Unit Owners on account of such casualty, shall constitute a construction fund which shall be disbursed in payment of the costs of reconstruction and repair in the following manner and order: (i) Association - Lesser Damage. If the amount of the estimated cost of reconstruction and repair which are the responsibility of the Association is less than $100,000, then the construction fund shall be disbursed in payment of such costs upon the order of the Board of Directors; DECLARATION OF CONDOMINIUM -_39- provided, however, that upon request to the Insurance. Trustee (if appointed) by an Institutional First Mortgagee which is a beneficiary of an insurance policy, the proceeds of which are included in the construction fund, such fund shall be disbursed in the manner provided below for the reconstruction and repair of major damage. Association - Maior Damage. If the amount of the estimated cost of reconstruction and repair which are the responsibility of the Association is more than $100,000, then the construction fund shall be disbursed in payment of such costs in the manner contemplated by subparagraph (i) above, but then only upon the further approval of an architect or engineer qualified to practice in Florida and employed by the Association to supervise the work. Unit Owners. If there is a balance of insurance proceeds after payment of all costs of reconstruction and repair that are the responsibility of the Association, this balance may be used by the Association to effect repairs to the Optional Property (if not insured or if under-insured), or may be distributed to Owners of the Optional Property who have the responsibility for reconstruction and repair thereof. The distribution shall be in the proportion that the estimated cost of reconstruction and repair of such damage to each affected Unit bears to the total of such estimated costs to all .affected Unit Owners, as determined by the Board; provided, however, that no Unit Owner shall be paid an amount in excess of the estimated costs of repair for his portion of the Optional Property. All proceeds must be used to effect repairs to the Optional Property, and if insufficient to complete such repairs, the Unit Owners shall pay the deficit with respect to their portion of the Optional Property and promptly effect the repairs. Any balance remaining after such repairs have been effected shall be distributed to the affected Unit Owners and their mortgagees jointly as elsewhere herein contemplated. (iv) Surplus. It shall be presumed that the first monies disbursed in payment of costs of reconstruction and repair shall be from insurance proceeds. If there is a balance in a construction fund after payment of all costs relating to the reconstruction and repair for which the fund is established, such balance shall be distributed to the beneficial owners of the fund in the manner elsewhere stated; except, however, that part of the distribution to an Owner which is not in excess of Assessments and Charges paid by such Owner into the construction fund shall not be made payable jointly to any mortgagee. DECLARATION OF CONDOMINIUM -_40- (v) Certificate. Notwithstanding the provisions herein, the Insurance Trustee shall not be required to determine whether or not sums paid by Unit Owners upon Assessments and Charges shall be deposited by the Association with the Insurance Trustee, or to determine whether the disbursements from the construction fund are to be made upon the order of the Association alone or upon the additional approval of an architect, engineer or otherwise, or whether a disbursement is to be made from the construction fund, or to determine whether surplus funds to be distributed are less than the Assessments and Charges paid by Owners, or to determine the payees or the amounts to be paid. 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 names of the payees and the amounts to be paid. 15.4 Assessments and Charges: If the proceeds of the insurance are not sufficient to defray the estimated costs of reconstruction and repair to be effected by the Association, or if at any time during reconstruction and repair, or upon completion of reconstruction and repair, the funds for the payment of the costs of reconstruction and repair are insufficient, Assessments or Charges shall be made against the Unit Owners in sufficient amounts to provide funds for the payment of such costs. Such Assessments on account of damage to the Insured Property shall be in proportion to all of the Owners' respective shares in the Common Elements, and, Charges on account of damage to the Optional Property, shall be in proportion to the cost of repairing the damage suffered by each Owner thereof, as determined by the Association. 15.5 Benefit of Mortgagees. Certain provisions in this Section 15 are for the benefit of mortgagees of Units and may be enforced by any of them. 16. Condemnation. 16.1 Deposit of Awards with Insurance Trustee. The taking of portions of the Condominium Property or Association Property by the exercise of the power of eminent domain 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 a failure to do so, in the discretion of the Board of Directors, a Special Charge shall be made against a defaulting Unit Owner in the amount of his award, or the amount of such award shall be set off against any sums hereafter made payable to that.Owner. 16.2 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 DECLARATION OF CONDOMINIUM -_41- after casualty. For this purpose, a taking by eminent domain also shall be a casualty. 16.3 Disbursement of Funds. If the Condominium is terminated after condemnation, the proceeds of the awards and Special Assessments will be deemed to be insurance proceeds and shall be owned and distributed in the manner provided with respect to the ownership and distribution of 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 and the property damaged by the taking will be made usable 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 (if appointed) after a casualty, or as elsewhere in this Section 16 specifically provided. 16.4 Unit Reduced but Habitable. If the taking reduces the size of a Unit and the remaining portion of the Unit can be made habitable (in the sole opinion of the Association), 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 made to the Condominium. (a) Restoration of Unit. The Unit shall be made habitable. If the cost of the restoration exceeds the amount of the award, the additional funds required shall be charged against the Owner of the Unit. (b) Distribution of Surplus. The balance of the award with respect to the Unit, 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 Unit Owner and such mortgagees. (c) Adjustment of Shares in Common Elements. If the floor area of the Unit is reduced by the taking, the percentage representing the share in the Common Elements and of the Common Expenses and Common Surplus appurtenant to the Unit shall be reduced by multiplying the percentage of the applicable Unit prior to reduction by a fraction, the numerator of which shall be the area in square feet of the Unit after the taking and the denominator of which shall be the area in square feet of the Unit before the taking. The shares of all Unit Owners in the Common Elements, Common Expenses and Common Surplus shall then be restated as follows: (i) add the total of all percentages of all Units after reduction as aforesaid (the "Remaining Percentage Balance"); and (ii) divide each percentage for each Unit after reduction as aforesaid by the Remaining Percentage Balance. The result for each Unit shall be the adjusted percentage for such Unit. DECLARATION OF CONDOMINIUM _42- 16.5 Unit Made Uninhabitable. If the taking is of the entire Unit or reduces the size of a Unit so that it cannot be made habitable (in the sole opinion of the Association), 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 made to the Condominium: (a) Payment of Award. The awards shall be paid first to the applicable Institutional First Mortgagees in amounts sufficient to pay off their mortgages in connection with each Unit which is not so habitable; second, to the Association for any due and unpaid Charges and .Assessments; third, jointly to the affected Unit Owners and other mortgagees of their Units. In no event shall the total of such distributions with respect to a specific Unit exceed the market value of such Unit immediately prior to the taking. The balance, if any, shall be applied to repairing and replacing the Common Elements. Any awards attributable to more than one Unit shall be divided among the affected Unit Owners in proportion to the damage or impairment suffered by each such Unit Owner, as determined by the Association in its sole discretion. (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 a condition allowing, to the extent possible, 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 therefor shall exceed the balance of the fund from the award for the taking, such work shall be approved in the manner elsewhere required for capital improvements to the Common Elements. (c) Adjustment of Shares. The shares in the Common Elements, Common Expenses and Common Surplus appurtenant to the Units that continue as part of the Condominium shall be adjusted to distribute the shares in the Common Elements, Common Expenses and Common Surplus among the reduced number of Unit Owners (and among reduced Units). This shall be effected by restating the shares of continuing Unit Owners as follows: (i) , add the total of all percentages of all Units of continuing Unit Owners prior to this adjustment, but after any adjustments made necessary by subsection 16.4(c) hereof (the "Percentage Balance"); and (ii) divide the percentage of each Unit of a continuing Unit Owner prior to this adjustment, but after any adjustments made necessary by subsection 16.4(c) hereof, by the Percentage Balance. The result of such division for each Unit shall be the adjusted percentage for such Unit. DECLARATION OF CONDOMINIUM 43- (d) Assessments. If the balance of the award (after payments to the Unit Owners and such Owner's mortgagees as above provided) for the taking is not sufficient to alter the remaining portion of the Unit for use as a part of the Common Elements, the additional funds required for such 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 applicable percentage shares of those Unit Owners after all adjustments to such shares effected pursuant hereto by reason of the taking. (e) Arbitration. If the 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 of a dispute by any affected party, such 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. A judgment upon the decision rendered by the arbitrators may be entered in any court of competent jurisdiction in accordance.with the Florida Arbitration Code. The cost of arbitration proceedings shall be assessed against all Units Owners, including Owners who will not continue after the taking, in proportion to the applicable percentage shares of such Owners as they exist prior to the adjustments to such shares effected pursuant hereto by reason of taking. 16.6 Taking of Common Elements. Awards for the taking of Common Elements shall be used to render the remaining portion of the Common Elements usable in the manner approved by the Board of Directors; provided, that if the cost of such 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 capital improvements to the Common Elements. 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 adjustments to these shares effected pursuant hereto by reason of the taking. If there is a mortgage on a Unit, the distribution shall be paid jointly to the Unit Owner and the mortgagees of the Unit. 16.7 Amendment of Declaration. The changes in Units, in the Common Elements and in the ownership of the Common Elements and shares in the Common Expenses and Common Surplus that are effected by the taking shall be evidenced by an amendment to this Declaration of Condominium that is only required to be approved by, and executed upon the direction of, a majority of the Board of Directors. 17. Occupancy and Use Restrictions. In order to provide for congenial occupancy of the Condominium Property and for the protection of the values of the Units, the use of the Condominium Property shall be restricted to and shall be in accordance with the following provisions: DECLARATION OF CONDOMINIUM -=44- 17.1 Occupancy and Use Restrictions. Except as otherwise herein expressly provided, each Residential Unit shall be used for residential purposes only. No business, profession or trade of any type shall be conducted on any portion of the Residential Units. This prohibition shall not be applicable to (a) the Commercial Units, which may be used for any lawful purpose, and may be used by the Owner(s) thereof and their guests, lessees, tenants and invitees; and (b) the Developer with respect to its development of the Condominium Property, its construction, repair, decorating, administration, sale rental or.lease of Units, or its. use of Units as models, V.I.P. or guest suites, or for sales offices or management services. Nothing herein shall be construed to prohibit ownership of a Unit by a domestic or foreign corporation or other entity. Occupancy in the Residential Units, except for temporary occupancy by visiting guests, shall not exceed two (2) persons per bedroom and one (1) person per den (as defined by the Condominium Association for the purpose of excluding from such definition living rooms, dining rooms, family rooms, country kitchens and the like). The provisions of this section shall not be applicable to Residential Units used by the Developer for model units, VIP suites, sales offices or management or other services. Unless otherwise determined by the Board of Directors of the Condominium Association, and except as otherwise provided in Section 17.2 of this Declaration of Condominium, a person(s) occupying a Residential Unit for more than one (1) month without the Unit Owner or a member of his family being present shall not be deemed a guest but, rather, shall be deemed a lessee for purposes of said section (regardless of whether a lease exists or rent is paid) and shall be subject to the provisions of this Declaration of Condominium which apply to lessees. The purpose of this paragraph is to prohibit the circumvention of the provisions and intent of this Declaration of Condominium pertaining to the approval of leases, and the Board of Directors of the Condominium Association shall enforce, and the Unit Owners shall comply with, this provision with due regard to such purpose. 17.2 Leases. Leasing of Residential Units shall be subject to the prior written approval of the Condominium Association. Every lease of a Residential Unit shall specifically require a deposit from the prospective tenant in an amount not to exceed one (1) month's rent ("Deposit"), to be held in an escrow account maintained by the Condominium Association, provided, however, that the Deposit shall not be required for any Unit which is rented or leased directly by or to the Developer. No lease of a Residential Unit shall be for a term of less than three (3) months. In no event shall a Unit be leased more than six (6) times within any calendar year, regardless of the lease term. When a Residential Unit is leased, a tenant shall have all use rights in Association Property and those Common Elements otherwise. readily available for use generally by the Residential Unit Owners, and the Owner(s) of the leased Residential Unit shall not have such rights, except as a guest, unless such rights are waived in writing by the tenant. Nothing herein shall interfere with the access rights of the Residential Unit Owner as a landlord pursuant to Chapter 83, Florida Statutes. The Condominium Association shall have the right to adopt rules to prohibit dual usage by a Residential Unit Owner and a tenant of Association Property and DECLARATION OF CONDOMINIUM _-45- Common Elements otherwise readily available for use generally by Owners. Additionally, copies of all leases of Residential Units shall be submitted to the Condominium Association and the tenants thereunder must register with the Condominium Association prior to any occupancy. There are no leasing restrictions imposed upon the Commercial Units or any Residential Unit rented or leased directly by or to the Developer and all such Units may be leased on'any terms that may be desired by the Commercial Unit Owner, or by the Developer, as applicable. Every lease shall provide (or, if it does not, shall be automatically deemed to provide) that a material condition of the lease shall be the tenant's full compliance with the covenants, terms, conditions and restrictions of the Declaration of Condominium (and all exhibits thereto), and with any and all rules and regulations adopted by the Condominium Association from time to time (before or after the execution of the lease). The Unit Owner will be jointly and severally liable with the tenant to the Condominium Association for any amount which is required by the Condominium Association to repair any damage to the Common Elements from the acts or omissions of tenants (as determined in the sole discretion of the Condominium Association) and to pay any claim for injury or damage to property caused by the negligence of the tenant and a Special Charge may be levied against the Unit therefore. All leases are hereby made subordinate to any lien filed by the Condominium Association, or of the Condominium Association, whether prior or subsequent to such lease. 17.3 Children. Children shall be permitted to reside in the Residential Units, subject to the provisions of Section 17.1 above, and applicable rules and regulations which may be adopted by the Association from time to time. 17.4 Pets. No more than two (2) household pets (as may be defined and re-defined by the Condominium Association) shall be maintained in any Residential Unit or any Limited Common Element appurtenant thereto. The maximum total weight of any such household pets shall be limited to an aggregate of sixty (60) pounds. Notwithstanding the foregoing, the maximum total weight for any one household pet may not exceed forty (40) 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, 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. Residential 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 Section 19 of this 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 Residential Unit Owners DECLARATION OF CONDOMINIUM -46- (as provided in any applicable rules and regulations) and/or to require any pet to be permanently removed from the Condominium. This Section 17.4 shall not prohibit that it does not become a nuisance or annoyance to neighbors. 17.5 Use of Common Elements and Association Property. No portion of the Units, the Limited Common Elements, the Common Elements, or the Condominium shall be used for any purpose other than those reasonably suited for furnishing the services and facilities incident to the use of the Units. The Common Elements shall not be obstructed, littered, defaced, or misused in any manner. In no event shall any Unit Owner or occupant place, or permit the placement of, any item that obstructs, or otherwise impedes access to, any portions of the Condominium that are either designated or used as delivery and receiving areas. Nothing herein or elsewhere in the Declaration of Condominium or the Rules and Regulations shall prohibit or impede any Commercial Unit Owner from using any Limited Common Element(s) appurtenant to its Commercial Unit for any commercial services or other retail services provided such Commercial Unit Owner has obtained all necessary permits and approvals from the appropriate governmental authorities for such use. 17.6 Nuisances. No nuisances (as defined by the Condominium Association from time to time) shall be allowed on the Condominium or Association Property, nor shall any use, custom or practice be allowed which is a source of annoyance to occupants of Units or which interferes with the peaceful possession or proper use of the Condominium and/or Association Property by its residents, occupants or members. The Board of Directors shall have the right to determine if any equipment, fixture, improvement, materials or activity producing such noise or odor constitutes a nuisance. Notwithstanding the foregoing, no activity specifically permitted by the Declaration of Condominium, including, without limitation, activities or businesses conducted from the Commercial Units, shall be deemed a nuisance, regardless of any noise, odors or traffic emanating therefrom (except, however, to the extent that such noise, odors or traffic exceed the limits, if any, permitted by Applicable Law). By acquiring a Unit, each Owner shall be deemed to acknowledge and agree that: a) it is intended (without creating any obligation) that retail shops, offices and other commercial operations may be operated from any of the Commercial Units and that such operations may result in the creation of noise, music and odors which may affect other portions of the Condominium Property; b) that the Commercial Units may attract customers, patrons and/or other members of the public who are not members of the Condominium Association, resulting in additional traffic over and upon the Common Elements; and c) that any such matters or conditions shall not be deemed a nuisance hereunder and that neither the Developer, any Commercial Unit Owner, or any tenant of a Commercial Unit, shall be liable for any damages or other liability resulting therefrom. 17.7 Outside Items. No rubbish, garbage, refuse or trash shall be kept, stored or allowed to accumulate on any portion of the Condominium Property, except within designated trash receptacles. No linens, clothing, household fabrics, curtains, rugs, or laundry of any kind shall be hung, dried or aired from any windows, doors, balconies, terraces, or other portions of the Condominium. No DECLARATION OF CONDOMINIUM -_47- articles shall be placed on balconies, patios or similar areas. The foregoing shall not prevent placing and using patio-type furniture, planters and other items in such areas if the same are normally and customarily used for a residential balcony, patio or terrace area. In the event of any doubt or dispute as to whether a particular item is permitted hereunder, the decision of the Board of Directors shall be final and dispositive. 17.8 Firearms. The discharge of firearms and fireworks within the Condominium is prohibited. The term "firearms" includes "B-B" guns, pellet guns, and other firearms of all types, regardless of size. 17.9 No Improper Uses. No improper, offensive, hazardous or unlawful use shall be made of the Condominium Property or any part thereof, and all valid laws, zoning ordinances and regulations of all governmental bodies having jurisdiction thereover shall be observed. Violations of laws, orders, rules, regulations or requirements of any governmental agency having jurisdiction thereover, relating to any portion of the Condominium Property, shall be corrected by, and at the sole expense of, the party obligated to maintain or repair such portion of the Condominium Property, as elsewhere herein set forth. Notwithstanding the foregoing and any provisions of this Declaration, the Articles of Incorporation or the By-Laws, the Association shall not be liable to any person(s) for its failure to enforce the provisions of this Section 17.9. No activity specifically permitted by this Declaration shall be deemed to be a violation of this section. 17.10 Alterations or Additions. No Owner of a Residential Unit shall cause or allow improvements or changes to the structure or exterior of any Residential Unit or Limited Common Elements, Common Elements or Association Property, or in any manner change the appearance of any portion of the exterior of the Building, without obtaining the prior written consent of the Condominium Association in the manner specified in Section 9.1 of this Declaration of Condominium. No spas, hot tubs, whirlpools or similar improvements shall be permitted on any patio or balcony. Anything to the contrary notwithstanding, the restrictions of this section shall not apply to Commercial Units. Additionally, each Commercial Unit Owner shall have the right, without the consent or approval of the Condominium Association, or any other Unit Owner or other party, other than the applicable governmental authorities, if and to the extent such approvals are required, to make alterations, additions or improvements, structural and non-structural, interior or exterior, ordinary or extraordinary, in, to and upon any Commercial Unit owned by it and any Limited Common Element terraces, patios, lanais, decks or other areas appurtenant thereto, including without limitation, the removal of walls, floors, decorative ceilings and other portions thereof, the installation or placement of signage, equipment, furniture, tables, chairs and other furnishings or equipment on any patios and/or terraces appurtenant thereto. The Owner of the Commercial Unit to which any such additions, alterations or improvements have been made, and its successors and assigns, shall indemnify, defend and hold harmless the Condominium Association, the Developer and all other Unit Owners from any and all claims, losses, damages and expenses arising from such alterations, additions or improvements, and shall be solely responsible for the maintenance, DECLARATION OF CONDOMINIUM --48- repair and insurance thereof. Notwithstanding the foregoing, any additions, alterations or improvements must comply with all applicable governmental codes, ordinances and other requirements. 17.11 Sound, Weight and Flooring Restrictions. Except for the installation of any hard and/or heavy surface floor coverings, such as tile, marble, wood, and the like, in the bathrooms, kitchens and foyers of the Residential Units or in any portion of the Commercial Units, the installation of such hard and/or heavy surface floor coverings other than as installed by the Developer shall be subject to (a) approval in writing by the Board of Directors, (b) meet applicable structural and sound insulation requirements, and (c) be compatible with the overall structural design of the Building. Additionally, the installation in any Residential Unit of any improvement or heavy object must be approved by the Board of Directors and must be compatible with the overall structural design of the Building. In no event shall any heavy object, which would exceed a live load limit of 50 pounds per square foot, be placed in any Residential Unit. The Board of Directors may require a structural engineer to review certain of the proposed improvements, with such review to be at the Owner's sole expense. Additionally, the Board may require Unit Owners to furnish it With certifications of the floor assembly Impact Isolation Class rating from the installers of such surfaces. The color and exact materials to be used on balcony floor coverings must also be approved in writing by the Board of Directors. Any use guidelines set forth by the Condominium Association shall be consistent with good design practices for the waterproofing and overall structural design of the Building. Owners will be held strictly liable for violations of these restrictions and for all damages resulting therefrom and the Condominium Association has the right to require immediate removal of violations. Applicable warranties of the Developer, if any, shall be voided by violations of these restrictions and requirements. A waterproofing system is to be placed on the concrete surface of the balcony prior to the installation of the setting bed and tile. This waterproofing system must be as recommended by the manufacturer of the the setting material and the installation must follow the waterproofing manufacturer's written recommendations. Each Owner acknowledges that sound transmission in a building such as the Condominium is very difficult to control, and that noises from adjoining or nearby Units and/or mechanical equipment can often be heard in another Unit. The Developer does not make any representation or warranty as to the level of sound transmission between and among Units and the other portions of the Condominium Property, and each Owner shall be deemed to waive and expressly release any such warranty and claim for loss or damages resulting from sound transmission. 17.12 Exterior Improvements. Without limiting the generality of Section 9.1 of this Declaration of Condominium specifically permitting same, including (without limitation) the exemption of the Commercial Units in this Section 17.12 of this Declaration of Condominium, no Unit Residential Unit Owner shall cause anything to be affixed or attached to, hung, displayed or placed on the exterior walls, doors, balconies or windows of the Residential Units or the Limited Common Elements appurtenant thereto (including, but not limited to, awnings, canopies, shutters, window coverings, signs, screens, window tinting, fixtures DECLARATION OF CONDOMINIUM 49- and equipment), without the prior written consent of the Condominium Association. No painting or changes in the exterior colors of any Residential Units or the Limited Common Elements shall be permitted. 17.13 Signs. No sign, poster, display, billboard or other advertising devices of any kind including, without limitation, "FOR SALE", "FOR RENT", security services or construction signs shall be displayed to the public view on any portion of the Residential Units, and the Limited Common Elements appurtenant thereto or Common Elements, without the prior written consent of the Condominium Association, except, (a) signs, regardless of size, used by the Developer, its successors or assigns, including signs for construction or repairs, advertising, marketing, promotion, sale, leasing, and rental activities, (b) and bulletin boards, entrance, directional, informational and similar signs used by the Condominium Association. Notwithstanding anything to the contrary in this Declaration, the Owners of the Commercial Units may affix or attach lighted or unlighted signs on the exterior walls, doors, adjacent terraces, patios, lanais and/or windows of the Building (whether same are a part of the Commercial Unit, the Limited Common Elements appurtenant thereto, or the Common Elements) adjacent to the Owner's Commercial Unit, or to the windows of the applicable Commercial Unit, without receiving the consent of the Condominium Association, the Board or any other party (other than any applicable governmental authority to the extent that prior approval from them is required by applicable governmental codes, ordinances and/or regulations). 17.14 Lighting. All exterior lights and exterior electrical outlets in the Residential Units and the Limited Common Elements appurtenant thereto must be approved in accordance with Section 9 of this Declaration of Condominium. .17.15 Exterior Sculpture and Similar Items. Exterior sculpture, flags, and similar items in the Residential Units and the Limited Common Elements appurtenant thereto must be approved in accordance with Section 9 of this Declaration. Notwithstanding the foregoing, any Unit Owner may respectfully display one (1) portable, removable American flag, and, on Armed Forces Day, Memorial Day, Flag Day, Independence Day, and Veterans Day, any Unit. Owner may respectfully display portable, removable official flags, not larger than four and one-half feet by six feet (4'6" x 6') that represent the United States Army, Navy, Air Force, Marine Corps, or Coast Guard. 17.16 Air Conditioning Units. No window or wall mounted air conditioning units may be installed in any Unit. Units with large amounts of outdoor glass windows and doors are susceptible to large temperature fluctuations, based upon the location of the various rooms within the Unit, as well as the.differing positions of the sun throughout the day and the differing weather conditions throughout the year. The normal operations of the air conditioning systems in the Units may not fully compensate for these temperature fluctuations and additional adjustments, through the use of indoor window treatments such as curtains and blinds, may be necessary. 17.17 Outside Installations. No radio station or short-wave operations of any kind shall operate from any Residential Unit, the Limited Common Elements appurtenant DECLARATION OF CONDOMINIUM I -_50- thereto or Common Elements. Except to the extent permitted under Applicable Law, no exterior satellite dish, or other transmitting or receiving apparatus, radio antenna, television antenna or other antenna of any type shall be erected or maintained on the Common Elements, Limited Common Elements, or Residential Units, without the prior written consent of the Condominium Association. Notwithstanding the foregoing, upon obtaining the prior written consent of the Condominium Association, satellite dishes, and other devices permitted under Applicable Law, may be installed within the Residential .Units or within any Limited Common Elements appurtenant thereto, provided, however, that in no event shall any such device be installed in or on any other portion of the Condominium Property. To the extent permissible under Applicable Law, the Condominium Association may enact Rules and Regulations, requiring that any such devices which may be permitted under Applicable Law are comparable in size, weight and appearance, are installed and maintained in a manner designed to protect the safety of the Building and its occupants and satisfy any standards established by the Condominium Association for architectural appearance purposes. 17.18 Window and Door Treatments. No reflective film, tinting or window coverings shall be installed on any windows or glass doors in any Residential Unit, except as necessary to replace or restore tinting of glass surfaces as originally installed, unless approved by the Condominium Association in accordance with Section 9 of this Declaration of Condominium. Curtains, drapes and other window coverings (including their linings) in Residential Units, which face on exterior windows or glass doors, or are visible from the exterior of the Building, shall be white or off-white in color, unless otherwise specifically approved by the Board of Directors. No aluminum foil may be placed in any window or glass door of a Residential Unit and no reflective substance may be placed on any glass in a Residential Unit, except for any substance previously approved by the Board of Directors for energy conservation or hurricane protection purposes. No unsightly materials may be placed on any window or glass door or shall be visible through such window or glass door. Any screen door must be of a uniform type approved by the Condominium Association. The restrictions set forth herein shall not apply to the Commercial Units. 17.19 Parking and Vehicle Restrictions. No person shall park any vehicle so as to obstruct or otherwise impede ingress or egress to any parking spaces, including without limitation, to a parking space armed--designated to any other Unit. No Unit Owner, tenant, quest or invitee shall park in any space which has been designated for the use of another Unit. Parking in the Condominium shall be restricted to private automobiles and passenger-type vans, jeeps and pick-up trucks and sport utility vehicles, motorcycles, motor scooters as well as vans, trucks or other commercial vehicles used by the Owners or occupants of the Commercial Units to deliver, cater or otherwise provide services or inventory to such Commercial Unit (all of which are collectively referred to herein as "vehicles"). Except as otherwise permitted in this section no person shall park, store or keep on any portion of the Condominium any large type commercial type vehicle (for example, dump truck, motor home, trailer, cement mixer truck, oil or gas truck, delivery truck), except temporarily in designated guest parking DECLARATION OF CONDOMINIUM -_51- locations or delivery locations, nor may any person keep any other vehicle in the Condominium which is deemed to be a nuisance by the Board. No trailer, camper, motor home or recreational vehicle shall be used as a residence, either temporarily or permanently, or parked in the Condominium. The Condominium Association shall have the authority to prohibit any vehicle, including any motorcycle or motor scooter, which it determines constitutes a nuisance due to its noise level, particularly where such vehicle is operated in the early morning or late evening hours. No vehicle is permitted within the Condominium 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 Condominium. No more than one (1) motorcycle or motor scooter may be parked in a single space, and in no event :may a motorcycle or a motor scooter be parked in the same parking space as another vehicle or between any parking spaces. For so long as the Developer, conducts any sales or leasing activities within the Condominium or for so long as any Commercial Unit exists as part of the Condominium their use of parking spaces shall not be impeded or restricted. 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 Condominium Association, or its management companies. Subject to Applicable Law, any vehicle, boat, motorcycle or trailer parked in violation of these or other restrictions contained herein or in the rules and regulations may be towed by the Condominium Association at the sole expense of the owner of such vehicle. The Condominium 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. No Owner or occupant of a Unit shall park more than an aggregate total of three vehicles on the Condominium Property. 17.20 Unit Maintenance. Each Unit Owner must undertake or must designate a responsible firm or individual to undertake his general maintenance responsibilities, which responsibilities shall include, at a minimum, maintaining the exterior appearance of the Unit and the Limited Common Elements appurtenant thereto, safeguarding the Unit and the Limited Common Elements to prepare for hurricane or tropical storm watches and warnings -by, among other things, removing any unfixed items on balconies and terraces, and repairing the Unit and the Limited Common Elements in the event of any damage therefrom. An Owner may designate a firm or individual to perform such functions for the Owner, but such designation shall not relieve the Owner of any responsibility hereunder. The name(s) and addresses of such firm or individual must be furnished to the Condominium Association. The designation of such firm or individual shall be subject to the approval of the Condominium Association. 17.21 Hazardous Substances. No flammable, combustible or explosive fluids, chemicals or other substances may be kept in any Residential Unit, Limited Common Elements appurtenant thereto or Common Elements, except such as DECLARATION OF CONDOMINIUM -_52 are generally used for normal household purposes. No electric, gas, charcoal barbecue or other cooking devices, or outside cooking, is permitted on any patio or balcony. Without limiting the generality of the foregoing, such prohibitions shall not apply to the Commercial Units that utilize such hazardous substances in the ordinary course of business provided however, the Owners or occupants of such Commercial Units has obtained all requisite governmental approvals. 17.22 Mold Prevention. No Owner of a Residential Unit shall install, within such Unit, its Limited Common Elements appurtenant thereto or upon the Common Elements and/or Association Property, non-breathable wall-coverings or low-permeance paints. Additionally, any and all built-in casework, furniture, and or shelving within a Residential 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. Further, all Owners of Residential Units, whether or not occupying such Unit, shall continuously run the air conditioning system to minimize humidity in the Unit. While the foregoing is intended to minimize the potential development of mold and other microtoxins, the Developer does not make any representations or warranties regarding the existence or development of molds or microtoxins 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 molds, mildew, spores, fungi and/or other microtoxins. 17.23 Hurricane Protection. No type of hurricane protection may be installed in or around the Residential Units and the Limited Common Elements appurtenant thereto. Notwithstanding the foregoing, if and to the extent that the.Act gives Unit Owners the right to install hurricane shutters, any proposed hurricane shutters or other hurricane protection shall be approved by the Condominium Association, and shall be installed or affixed in a manner approved by the Condominium Association. All hurricane shutters and similar equipment shall be kept in an open position except during periods of hurricane or tropical storm watches or warnings. Upon issuance of an official hurricane warning, each Residential Unit Owner shall take all actions necessary to prepare his/her Unit for any such hurricane, which shall include (i) removing all objects from balconies and terraces which will not be secured or otherwise protected, and (ii) complying with all rules and regulations which may have been adopted by the Condominium Association from time.to time. No hurricane or storm shutters or other hurricane protection shall be permanently installed on any structure in a Residential Unit, the Limited Common Elements appurtenant thereto or Common Elements, unless first approved in accordance with Section 9 of the Declaration of Condominium. 17.24 Play Equipment, Strollers, Etc. Bicycles, tricycles, scooters, skateboards, and other play equipment, baby strollers and similar items shall not at any time be left in the hallways or other Common Elements or in the Limited Common Elements (including balconies, terraces and patios). 17.25 Insurance Rates. Nothing shall be done or kept in the Common Elements or within the Units or the Limited Common Elements which will increase the rate of insurance on any property insured by the Association without the approval of the Board, nor shall anything be done or kept in the Units, or on the Limited Common DECLARATION OF CONDOMINIUM --53- Elements or Common Elements, which would result in the cancellation of insurance on any property insured by the Association or which would be in violation of any law. 17.26 Association Access to Residential Units. In order to facilitate access to the Residential Units by the Condominium Association for the purposes enumerated in Section 11.1 of this Declaration of Condominium, it shall be the responsibility of all Residential Unit Owners to deliver a set of keys to their Residential Unit to the Condominium Association to use in the performance of its functions. No Owner shall change the locks to its Residential Unit without so notifying the Condominium Association and delivering to the Condominium Association a new set of keys to such Residential Unit. 17.27 Use of Residential Limited Common Elements. In order to preserve the community and congenial values of the Residential Units, neither the Owners of Commercial Units nor their tenants, occupants, guests and/or invitees shall be permitted to use the Residential Limited Common Elements. Nothing herein shall prohibit the Owners of Commercial Units or their tenants from using any other commonly used facilities in the Condominium including, without limitation, the Parking Areas. 17.28 Documents. Each Owner shall be obligated to deliver the documents received from the Developer, or from any prior Owner, containing this Declaration and any other declarations and documents, and any modifications thereto, to any purchaser or grantee of their Unit. Notwithstanding the foregoing, in the event of loss or damage to the documents they may be obtained from the Association upon payment of the actual cost for preparing and furnishing the documents to any Owner requesting them. 17.29 Rules and Regulations. As provided in the By-Laws, the Board of Directors may adopt rules and regulations applicable to all portions of the Condominium Property other than the property owned by the Declarant. In the event that such rules or regulations are adopted, they may be enforced in the same manner as the restrictions set forth in this section and may be modified, added to or revoked, in whole or in part, by the Board of Directors, and as provided in the By- Laws. 17.30 Effect on Developer and Commercial Unit Owners. The restrictions and limitations set forth in this Section 17 shall not apply to the Developer or to Units owned by the Developer, except that the Developer shall be subject to the requirement that prior written approval of the Condominium Association be obtained for leases of Residential Units set forth in Section17.2 and to the pet restrictions set forth in Section 17.4. The Developer shall also be subject to any restrictions on the type of vehicles allowed to park on the Condominium set forth in Section17.19; however, the Developer and its designees shall be exempt from any such restrictions if the vehicle is engaged in any activity relating to construction, maintenance or marketing of Units. In enforcing its rights hereunder, the Developer shall also be entitled to bring an action and recover sums due for damages, injunctive relief, or any combination thereof, and the DECLARATION OF CONDOMINIUM 54- Developer shall be entitled to recover all legal fees and expenses incurred in connection with any such action. Without limiting the generality of the foregoing, the provisions of this Section 17 shall not be amended, altered, or modified in any manner affecting the Commercial Units by any amendment to this Declaration, rule, regulation or otherwise, without the consent of at least 80% of all voting interests in the Condominium. 18. Selling and Mortgaging of Units. No Unit Owner other than the Developer may sell their Unit, except by complying with the following provisions: 18.1 Right of First Refusal. Any Unit Owner who receives a bona fide offer to purchase a Unit (such offer to purchase a Unit is called an "Outside Offer", the. party making any such Outside Offer is called an "Outside. Offeror", and the Unit Owner to whom the Outside Offer is made is called an "Offeree Unit Owner"), which he intends to accept shall give notice by certified and/or registered mail to the Board of Directors of the receipt of such Outside Offer. Said notice shall also state the name and address of the Outside Offeror, the terms of the proposed transaction and such other information as the Board of Directors may reasonably require and shall be accompanied by a check in the amount of $100.00 (or such greater amount as may be required by the Association and permitted by the Act) representing a screening fee. The giving of such notice to the Board of Directors shall constitute an offer by such Unit Owner to sell his Unit to the Association or to its designee upon the same terms and conditions as contained in such Outside Offer and shall also constitute a warranty and representation to the Association by the Unit Owner who has received such Outside Offer that such Unit Owner believes the Outside Offer to be bona fide in all respects. The Offeree Unit Owner shall submit in writing such further information with respect thereto as the Board of Directors may reasonably request. Not later than twenty (20) days after receipt of such notice, together with such further information as may have been requested, the Association or its designee may elect, by sending written notice to such Offeree Unit Owner before the expiration of said twenty (20) day period, by certified and/or registered mail, to purchase such Unit upon the same terms and conditions as contained in the Outside Offer and as stated in the notice from the Offeree Unit Owner. In the event the Association shall timely elect to purchase such Unit or to cause the same to be purchased by its designee, title shall close at the office of the attorneys for the Association, in accordance with the terms of the Outside Offer, within twenty (20) days after the giving of notice by the Association of its election to accept such offer. If, pursuant to such Outside Offer, the Outside Offeror was to assume or take title to the Unit subject to the Offeree Unit Owner's existing mortgage or mortgages, the Association may purchase the Unit and assume or take title to the Unit subject to said existing mortgage or mortgages, as the case may be. At the closing, the Offeree Unit Owner shall convey the same to the Association, or to its designee, by statutory warranty deed, with all tax and/or documentary stamps affixed at the expense of such Unit Owner, who shall also pay all other taxes arising out of such sale. Title shall be good and marketable and insurable and the Offeree Unit Owner shall deliver an abstract or provide a DECLARATION OF CONDOMINIUM -_55- title binder (and subsequently, title insurance) at its expense at least thirty (30) days prior to such closing. Real estate taxes, mortgage interest, if any, and Assessments shall be apportioned between the Offeree Unit Owner and the Association, or its designee, as of the closing date. In the event the Association or its designee shall fail to accept such offer in the manner required under this section, within twenty (20) days after receipt of notice and all additional information requested, as aforesaid, the Offeree Unit Owner shall be free to accept the Outside Offer within thirty (30) days after (i) notice of refusal is given by the Association, or (ii) the expiration of the period in which the Association or its designee might have accepted such offer, as the case may be. In the event the Offeree Unit Owner shall not, within such thirty (30) day period, accept, in writing, the Outside Offer or if the Offeree Unit Owner shall accept the Outside Offer within such thirty (30) day period, but such sale shall not be consummated in accordance with the terms of such Outside Offer or within a reasonable time after the date set for closing thereunder, then, should such Offeree Unit Owner thereafter elect to sell such Unit, as the case may be, the Offeree Unit Owner shall be required to again comply with all of the terms and provisions of this section. Any deed to an Outside Offeror shall automatically be deemed to provide that the acceptance thereof by the grantee shall constitute an assumption of the provisions of the Declaration, the By-Laws, the Articles of Incorporation, applicable rules and regulations, and all other agreements, documents or instruments affecting the Condominium Property. Any purported sale of a Unit in violation of this section shall be voidable at any time at the election of the Association and if the Board of Directors shall so elect, the Unit Owner shall be deemed to have authorized and empowered the Association to institute legal proceedings to evict the purported tenant (in case of an unauthorized leasing), or to void the conveyance (in case of an unauthorized sale). Said Unit Owner shall reimburse the Association for all expenses (including attorneys' fees and disbursements) incurred in connection with such proceedings. The foregoing restrictions regarding sales of Units shall not apply to Units sold by or to the Developer or by or to any Institutional First Mortgagee acquiring title by foreclosure or by a deed in lieu of foreclosure or in satisfaction of debt. The Developer and such Institutional First Mortgagees shall have the right to sell Units they own, without having to first offer the same for sale (as to Institutional First Mortgagees only)to the Association. Notwithstanding anything herein contained to the contrary, the Board of Directors, in exercising its rights as provided in this Section 18.1, shall not make any decision in a discriminatory manner, and no decision shall be made on the basis of race, gender, religion, national origin or physical or mental handicap. 18.2 Consent of Unit Owners to the Purchase of Units by the Association. The Association shall not exercise any option hereinabove set forth to purchase any Unit without the prior approval of Owners of a majority of the Units present in. DECLARATION OF CONDOMINIUM 56- person or by proxy and voting at a meeting at which a quorum has been obtained. 18.3 No Severance of Ownership. No part of the Limited Common Elements or Common Elements may be sold, conveyed or otherwise disposed of, except as an appurtenance to the Unit in connection with a sale, conveyance or other disposition of the Unit to which such interest is appurtenant, and any sale, conveyance or other disposition of a Unit shall be deemed to include that Unit's appurtenant interest in the Limited Common Elements and Common Elements whether or not explicitly stated. 18.4 Release by the Association of the Right of First Refusal. The right of first refusal contained in Section 18.1 may be released or waived by the Association only in the manner provided in Section 18.5. In the event the Association shall release or waive its right of first refusal as to any Unit, such Unit may be sold and conveyed free and clear of the provisions of Section 18.1. 18.5 Certificate of Termination of Right of First Refusal. A certificate executed and acknowledged by an officer of the Association stating that the provisions of Section 18.1 have been satisfied by a Unit Owner, or stating that the right of first refusal contained therein has been duly released or waived by the Association, and that, as a result thereof, the rights of the Association thereunder have terminated, shall be conclusive with respect to all persons who rely on such certificate in good faith. The Board of Directors shall promptly furnish such certificate upon request to any Unit Owner with respect to whom the provisions of such section have, in fact, terminated or been waived. No fee shall be charged by the Association in connection with the furnishing of such certificate in excess of the charges reasonably required for same, and such charges shall not exceed the maximum amount allowed under the Act. 18.6 Financing of Purchase of Units by the Association. The purchase of any Unit by the Association shall be made on behalf of all Unit Owners. If the available funds of the Association are insufficient to effectuate any such purchase, the Board of Directors may levy an Assessment against each Unit Owner (other than the Offeree Unit Owner), in proportion to his share of the Common Expenses, and/or the Board of Directors may, in its discretion, finance the acquisition of such Unit; provided, however, that no such financing may be secured by an encumbrance or hypothecation of any portion of the Condominium Property other than the Unit to be purchased. 18.7 Exceptions. The provisions of Section 18.1 shall not apply with respect to any sale or conveyance of any Unit by: (a) the Unit Owner thereof to his spouse, adult children, parents, parents-in-law, adult siblings or a trust, corporation or other entity where the Unit Owner or the aforementioned related persons are and continue to be the sole beneficiary or equity owner of such trust, corporation or other entity, or to any one or more of the above; (b) the Developer; (c) the Association; (d) any proper officer conducting the sale of a Unit in connection with the foreclosure of a mortgage or other lien covering such Unit or the delivery of a deed in lieu of foreclosure; or (e) to an Institutional First Mortgagee (or its designee) deriving title by virtue of foreclosure of its mortgage or acceptance of a DECLARATION OF CONDOMINIUM --57- deed in lieu of foreclosure or in satisfaction of debt; provided, however, that each succeeding Unit Owner shall be bound by, and his Unit subject to, the provisions of this Section 18. The Association shall be given prior written notice of any such conveyance or transfer, including the name and address of the intended grantee.. The provisions of Section 18.1 shall not apply with respect to any sale or conveyance of a Commercial Unit. 18.8 Gifts and Devises, etc. Any Unit Owner shall be free to convey or transfer his Unit by gift, to devise his Unit by will, or to have his Unit pass by intestacy, without restriction; provided, however, that each succeeding Unit Owner shall be bound by, and his Unit subject to, the provisions of this Section 18 The Association shall be given prompt written notice of any. such conveyance or transfer, including the name and address of the intended grantee. 18.9 Mortgage of Units. Each Unit Owner shall have the right to mortgage his Unit without restriction. 19. Compliance and Default. The Association, each Unit Owner, occupant of a.Unit, tenant, guest and other invitee of a Unit Owner, shall be governed by and shall comply with the terms of this Declaration and all exhibits annexed hereto, and the rules and regulations adopted pursuant to those documents, as the same may be amended from time to time, and the provisions of all of such documents shall be deemed incorporated into any lease of a Unit whether or not expressly stated in such lease. The Association (and Unit Owners, if appropriate) shall be entitled to the following relief in addition to the remedies provided by the Act: 19.1 Mandatory Nonbinding Arbitration and Mediation of Disputes. Prior to the institution of court litigation, a party to a Dispute shall petition the Bureau for nonbinding arbitration. The petition must be accompanied by a filing fee in the amount of$50. Filing fees collected under this section must be used to defray the expenses of the alternative dispute resolution program. The petition must recite, and have attached thereto, supporting proof that the petitioner gave the respondents: (1) Advance written notice of the specific nature of the Dispute; (2) A demand for relief, and a reasonable opportunity to comply or to provide the relief; and (3) Notice of the intention to file an arbitration petition or other legal action in the absence of a resolution of the Dispute. Failure to include the allegations or proof of compliance with these prerequisites requires dismissal of the petition without prejudice. Upon receipt, the petition shall be promptly reviewed by the Bureau to determine the existence of a dispute and compliance with the requirements of paragraph (a) and (b). If emergency relief is required and is not available through arbitration, a motion to stay the arbitration may be filed. The motion must be accompanied by DECLARATION OF CONDOMINIUM 58- a verified petition alleging facts that, if proven, would support entry of a temporary injunction, and if an appropriate motion and supporting papers are filed, the Bureau may abate the arbitration pending a court hearing and disposition of a motion for temporary injunction. Upon determination from the Bureau that a Dispute exists and that the petition substantially meets the requirements of paragraphs (a) and (b) and any other applicable rules, a copy of the petition shall forthwith be served by the Bureau upon all respondents. Either before or after the filing of the respondents' answer to the petition, any party may request that the arbitrator refer the case to mediation under this section and any rules adopted by the Bureau. Upon receipt of a request for mediation, the Bureau shall promptly contact the parties to determine if there is agreement that mediation would be appropriate. If all parties agree, the Dispute must be referred to mediation. Notwithstanding a lack of an agreement by all parties, the arbitrator may refer a Dispute to mediation at any time. Upon referral of a case to mediation, the parties must select a mutually acceptable mediator. To assist in the selection, the arbitrator shall provide the parties with a list of both volunteer and paid mediators that have been certified by the Bureau under Section 718.501. If the parties are unable to agree on a mediator within the time allowed by the arbitrator, the arbitrator shall appoint a mediator from a list of certified mediators. If a case is referred to mediation, the parties shall attend a mediation conference, as scheduled by the parties and the mediator. If any party fails to attend a duly noted mediation conference, without permission or approval of the arbitrator or mediator, the arbitrator must impose sanctions against the party, including the striking of any pleading filed, the entry of an order of dismissal or default if appropriate, and the award of costs and attorney's fees incurred by the other parties. Unless otherwise agreed to by the parties or as provided by order of the arbitrator, a party is deemed to have appeared at a mediation conference by the physical presence of the party or its representative having full authority to settle without further consultation, provided that the Association may comply by having one or more representatives present with full authority to negotiate a settlement and recommend that the board ratify and approve such a settlement within five (5) days from the date of the mediation conference. The parties shall share equally the expense of mediation, unless otherwise agreed. The purpose of mediation as provided for by this section is to present the parties with an opportunity to resolve the underlying dispute in good faith, and with a minimum expenditure of time and resources. Mediation proceedings must generally be conducted in accordance with Florida Rules of Civil Procedure, and these proceedings are privileged and confidential to the same extent as court-ordered mediation. Persons who are not parties to the dispute are not allowed to attend the mediation conference without the consent of all parties, with the exception of counsel for the parties and corporate representatives designated to appear for a party. If the mediator declares an impasse after a mediation conference has been held, the arbitration proceeding DECLARATION OF CONDOMINIUM --59- terminates, unless all parties agree in writing to continue the arbitration proceeding, in which case the arbitrator's decision shall be either binding or nonbinding, as agreed upon by the parties; in. the arbitration proceeding, the arbitrator shall not consider any evidence relating to the unsuccessful mediation except in a proceeding to impose sanctions for failure to appear at a mediation conference. If the parties do not agree to continue arbitration, the arbitrator shall enter an order of dismissal, and either party may institute a suit in a court of competent jurisdiction. The parties may seek to recover any costs and attorney's fees that may be recovered by the prevailing party in any subsequent litigation. The arbitration shall be conducted according to rules promulgated by the Bureau. The filing of a petition for arbitration shall toll the applicable statute of limitations. At the request of any party to the arbitration, such arbitrator shall issue subpoenas for the attendance of witnesses and the production of books, records, documents, and other evidence and any party on whose behalf a subpoena is issued may apply to the court for orders compelling such attendance and production. Subpoenas shall be served and shall be enforceable in the manner provided by the Florida Rules of Civil Procedure. Discovery may, in the discretion of the arbitrator, be permitted in the manner provided by the Florida Rules of Civil Procedure. Rules adopted by the Bureau may authorize any reasonable sanctions except contempt for a violation of the arbitration procedural rules of the Bureau or for failure of a party to comply with a reasonable non-final order issued by an arbitrator which is not under judicial review. The arbitration decision shall be presented to the parties in writing. An arbitration decision is final in those Disputes in which the parties have agreed to be bound. An arbitration decision is also final if a complaint for trial de novo is not filed in a court of competent jurisdiction in the County within thirty (30) days. The right to file for a trial de novo entitles the parties to file a complaint in the appropriate trial court for a judicial resolution of dispute. The prevailing party in the arbitration proceeding shall be awarded the costs of the arbitration and reasonable attorneys' fees in an amount determined by the arbitrator. Such an award shall include the costs and reasonable attorney's fees incurred in the arbitration proceeding as well as the costs and reasonable attorney's fees incurred in preparing for and attending any scheduled mediation. The party who files a complaint for a trial de novo shall be assessed the other party's arbitration costs, court costs and other reasonable costs, including, attorney's fees, investigation expenses and expenses for expert or other testimony or evidence incurred after the arbitration decision if the judgment upon the trial de novo is not more favorable than the arbitration decision. If the judgment is more favorable, the party who filed a complaint for trial de novo shall be awarded reasonable court costs and attorney's fees. Any party to an arbitration proceeding may enforce an arbitration award by filing a petition in a court of competent jurisdiction in the County. A petition may not be granted unless the time for appeal by the filing of a complaint for a trial de novo has expired. If a complaint for a trial de novo has been filed, a petition may not be granted with respect to an arbitration award that has been stayed. If the petition for enforcement is granted, the petitioner shall recover reasonable attorney's fees and costs incurred in enforcing the arbitration award. A mediation DECLARATION OF CONDOMINIUM -_60- settlement may also be enforced through the county or circuit court, as applicable, and any costs and fees incurred in the enforcement of a settlement agreement reached at mediation must be awarded to the prevailing party in any enforcement action. 19.2 Negligence and Compliance. A Unit Owner and/or lessee of a Unit shall be liable for the expense of any maintenance, repair or replacement made necessary by his negligence or by that of any member of his family or his or their guests, employees, agents or lessees, but only to the extent such expense is not met by the proceeds of insurance actually collected by the Association with respect to such negligence. In the event a Unit Owner, tenant or occupant fails to maintain a Unit or fails to cause such Unit to be maintained, or fails to observe and perform all of the provisions of the Declaration, the By-Laws, the Articles of Incorporation, applicable rules and regulations, or any other agreement, document or instrument affecting the Condominium Property or administered by the Association, in the manner required, the Association shall have the right to proceed in a court of equity to require performance and/or compliance, to impose any applicable fines, to sue in a court of law for damages, and to impose a Charge on the Unit Owner for the sums necessary to do whatever work is required to put the Unit Owner or Unit in compliance. In any proceeding arising because of an alleged failure of a Unit Owner, a tenant or the Association to comply with the requirements of the Act, this Declaration, the exhibits annexed hereto, or the rules and regulations adopted pursuant to said documents, as the same may be amended from time to time, the prevailing party shall be entitled to recover the costs of the proceeding and such reasonable attorneys' fees (including appellate attorneys' fees). A Unit Owner prevailing in an action with the Association, in addition to recovering his reasonable attorneys' fees, may recover additional amounts as determined by the court to be necessary to reimburse the Unit Owner for his share of Assessments levied by the Association to fund its expenses of the litigation. 20. Termination of Condominium. The Condominium shall continue until (i) terminated by casualty loss, condemnation or eminent domain, as more particularly provided in this Declaration, or (ii) such time as withdrawal of the Condominium Property from the provisions of the Act is authorized by a vote of Owners owning at least 80% of the applicable interests in the Common Elements and by the Primary Institutional First Mortgagee. In the event such withdrawal is authorized as aforesaid, the Condominium Property shall be subject to. an action for partition by any Unit Owner, mortgagee or lienor, as if owned in common, in which event the net proceeds of sale shall be divided among all Unit Owners in proportion to their respective interests in the Common Elements, or, if authorized by a vote of a majority of the Unit Owners, in proportion to the appraised value of each Unit as determined by an appraisal to be obtained by the Board. No payment shall be made to a Unit Owner until there has first been paid off out of his share of such net proceeds all mortgages and liens on his Unit in the order of their priority. The termination of the Condominium, as aforesaid, shall be evidenced by a certificate of the Association executed by its President and Secretary, certifying as to the basis of the termination and said certificate shall be recorded among the public records of the County. Upon recordation of such certificate, the Association within 30 business days shall notify the Bureau of the termination and the date the document was recorded, DECLARATION OF CONDOMINIUM the county where the document was recorded, and the book and page number of the public records where the document was recorded, and shall provide the Bureau a copy of the recorded termination notice certified by the clerk. This section may only be amended with the prior written consent of the Primary Institutional First Mortgagee, which shall not be unreasonably withheld. 21. Additional Rights of Mortgagees and Others. 21.1 Availability of Association Documents. The Association shall have current and updated copies of the following available for inspection by Institutional First Mortgagees during normal business hours or under other reasonable circumstances as determined by the Board: (a) this Declaration; (b) the Articles; (c) the By-Laws; (d) the', rules and regulations of the Association; and (e) the books, records and financial statements of the Association. 21.2 Amendments. No amendment may change the configuration or size of any Unit in any material fashion,. materially alter or modify the appurtenances to the Unit, change the proportion or percentages by which the Unit Owner 'shares the common expenses and owns the common surplus, or permit timeshare estates to be created in any Unit, unless a Majority of Institutional First Mortgagees approve the amendment, :which approval shall not be unreasonably withheld. The approval of a Majority of Institutional First Mortgagees, which shall not be unreasonably withheld, shall also be required if such an approval is required under the rules, regulations or requirements of the Federal National Mortgage Association or Federal Home Loan Mortgage Corporation. 21.3 Notices. Any holder, insurer or guarantor of a mortgage on a Unit shall have, if first requested in writing, the right to timely written notice of: (a) any condemnation or casualty loss affecting a material portion of the Condominium Property or the affected mortgaged Unit; (b) a sixty (60) day delinquency in the payment of the Assessments or any Charges on a mortgaged Unit; (c) the occurrence of a lapse, cancellation or material modification of any insurance policy or fidelity bond maintained by the Association; (d) any proposed action which requires the consent of a specified number of mortgage holders. 21.4 Additional Rights. Institutional First Mortgagees shall have the right, upon written request to the Association, to: (a) receive a copy of the financial.statement of the Association for the immediately preceding fiscal year; and (b) receive notices of and attend Association meetings. 22. The Condominium Association. The Common Elements of the Condominium are governed by the Condominium Association pursuant to this Declaration. Each Unit Owner, either directly or indirectly through the Association's membership, will be a member of the Condominium Association and will be subject to all of the terms and DECLARATION OF CONDOMINIUM I -_62- conditions of this Declaration, as amended and supplemented from time to time Among the powers of the Condominium Association are the power to assess Unit Owners for a share of the expenses of the operation, maintenance and replacement of (including the management fees relating thereto) the Common Elements and to impose and foreclose liens in the event such assessments are not paid when due. The Unit Owners shall be entitled to use said Common Elements in accordance with and subject to the terms of this Declaration and the Rules and Regulations. 23. Covenant Running With the Land. All provisions of this Declaration, the Articles, By- Laws and applicable rules and regulations of the Association, shall, to the extent applicable and unless otherwise expressly herein or therein provided to the contrary, be perpetual and be construed to be covenants running with the Land and with every part thereof and interest therein, and all of the provisions hereof and thereof shall be binding upon and shall inure to the benefit of the Developer and subsequent owner(s) of the Land or any part thereof, or interest therein, and their respective heirs, personal representatives, successors and assigns, but the same are not intended to create nor shall they be construed as creating any rights in or for the benefit of the general public. All present and future Unit Owners, tenants and occupants of Units shall be subject to and shall comply with the provisions of this Declaration and such Articles, By-Laws and applicable rules and regulations, as they may be amended from time to time. The acceptance of a deed or conveyance, or the entering into of a lease, or the entering into occupancy of any Unit, shall constitute an adoption and ratification of the provisions of this Declaration, and the Articles, By-Laws and applicable rules and regulations of the Association, as they may be amended from time to time, including, but not limited to, a ratification of any appointments of attorneys-in-fact contained herein. 24. Access of Developer to Building and Units and to Reports. For as long as Developer remains liable to the Condominium Association, 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 Condominium 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 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 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. 25. Notices. All notices to the Association required or desired hereunder or under the Articles or By-Laws, shall be sent by certified mail (return receipt requested) to the Association in care of its office at the Condominium, or to such other address as the Association may hereafter designate from time to time by notice in writing to all Unit DECLARATION OF CONDOMINIUM _-63- Owners. Except as provided specifically in the Act, all notices to any Unit Owner shall be sent by first class mail to the address of such Owner's Unit, or such other address as may have been designated by him from time to time, in writing, to the Association. All notices to mortgagees of Units shall be sent by first class mail to their respective addresses, or to such other address as may be designated by them from time to time, in writing to the Association. All notices shall be deemed to have been given when mailed in a postage prepaid sealed wrapper, except notices of a change of address, which shall be deemed to have been given when received, or five (5) business days after proper mailing, whichever shall first occur. 26. Reservation of Roof, Air and Development Rights. In connection with the creation of this Condominium, the Developer shall and does hereby reserve unto itself, the ownership of the air space arising above the level of the roof of the structure constructed upon the Condominium Property, having the exterior dimensions of the perimeter walls of the Building and extending vertically into infinity, and an exclusive easement upon the surface of the roof of the Building. The Association and each Unit Owner do hereby further give and grant to the Developer, and the Developer does hereby reserve unto itself, such easements on, over, under, through and across the Condominium Property as may be necessary for the installation, repair, replacement and maintenance of all improvements and installations placed and constructed by the Developer upon the roof of the Condominium and all areas appurtenant thereto. The Developer, its successors and assigns also have an easement of subjacent lateral support and all other support in every portion of the Condominium Property which contributes to the support of any improvements constructed on or above the roof of the Condominium Property. The rights and privileges reserved by the Developer, in this Section 26, may be assigned (in whole or in part), leased, transferred and/or conveyed by the Developer. The provisions contained in this Section 26 may not be amended, modified or deleted, in whole or in part, without the written consent of the Developer, unless approved by an affirmative vote representing at least 80% of the voting interests in the Condominium. 27. Commercial Units. Notwithstanding anything to the contrary in this Declaration, and except as expressly prohibited in Section 17.1, the Commercial Unit(s) and the Limited Common Elements, if any, appurtenant thereto, may be used for any and all lawful purposes, including, without limitation, as property management offices, and may be transferred, conveyed, leased or disposed of without the consent of the Association. The Commercial Unit(s) and the Limited Common Elements, if any, appurtenant thereto, shall be used in accordance.with Applicable Law. Any amendment to the foregoing provisions shall be approved by an affirmative vote representing at least 80% of the voting interests in the Condominium. 28. Additional Provisions. 28.1 Interpretation. The Board of Directors shall be responsible for interpreting the provisions hereof and of any of the Exhibits attached hereto. Such interpretations shall be binding upon all parties unless wholly unreasonable and an opinion of legal counsel engaged by the Association for such purpose that any interpretation adopted by the Association is not unreasonable shall conclusively establish the validity of such interpretation. DECLARATION OF CONDOMINIUM 64 28.2 Mortgagees. Anything herein to the contrary notwithstanding, the Association shall not be responsible to any mortgagee or lienor of any Unit, and may assume the Unit is free of any such mortgages or liens, unless written notice of the existence of such mortgage or lien is received by the Association. 28.3 Exhibits. There is hereby incorporated in this Declaration all materials contained in the Exhibits annexed hereto, except that as to such Exhibits, any conflicting provisions set forth therein as to their amendment, modification, enforcement and other matters shall control over the provisions hereof. 28.4 Signature of President and Secretary. Wherever the signature of the President of the Association is required hereunder, the signature of a vice-president may be substituted therefor, 'and wherever the signature of the Secretary of the Association is required hereunder, the signature of an assistant secretary may be substituted therefor, provided that the same person may not execute any single instrument on behalf of the Association in two separate capacities. 28.5 Governing Law. Should any dispute or litigation arise between any of the parties whose rights or duties are affected or determined by this Declaration, the Articles, the By-Laws or applicable rules and regulations adopted pursuant to such documents, as the same may be amended from time to time, said dispute or litigation shall be governed by the laws of the State of Florida. 28.6 Severability. The invalidity in whole or in part of any covenant or restriction, or any section, subsection, sentence, clause, phrase or word, or other provision of this Declaration, the Articles and By-Laws, or applicable rules and regulations adopted pursuant to such documents, as the same may be amended from time to time, shall not affect the validity of the remaining portions thereof which shall remain in full force and effect. 28.7 Waiver; Modifications. No provisions contained in this Declaration shall be deemed to have been waived by reason of any failure to enforce the same, without regard to the number of violations or breaches which may occur. 28.8 Execution of Documents; Attorney-in-Fact. Without limiting the generality of other sections of this Declaration and without such other sections limiting the generality hereof, each Owner, by reason of the acceptance of a deed to such Owner's Unit, shall be deemed to have acknowledged and agreed (i) that all of the provisions of this Declaration, and the Articles and By-Laws, and applicable rules and regulations, are fair and reasonable in all material respects, and (ii) to automatically consent to any rezoning, replatting, waiver of plat, covenant in lieu of unity of title, revised site plan, change, addition or deletion made in, on or to the Community, or transfer of density, use or other development rights, by the Developer or Declarant, or by any affiliate thereof, and in such regard, each Owner, or occupant of a Unit, hereby designates the Association to act on behalf of the Unit Owner, as agent and attorney-in-fact to consent to applications or other documents relating to such matters. If requested by the Developer or the Declarant, each Owner shall evidence their consent to a rezoning, replatting, covenant, revision, change, addition or deletion or transfer in writing (provided, however, that the refusal to give such written consent shall not obviate the DECLARATION OF CONDOMINIUM -_65- automatic effect of this provision). The foregoing Power of Attorney is irrevocable and is coupled with an interest. The provisions of this section may not be amended without the consent of the Developer. 28.9 Litigation/Waiver of Jury Trial. As to any claim arising from or connected with the Developer's construction, development, repair, replacement or maintenance of the Condominium Property, or the Developer's operation of the Association (the "Development Matters"), it shall be a material condition precedent to the institution of any proceeding regarding Development Matters that (i) the party or parties bringing same shall have first given notice to the Developer or other party against whom/which relief or recovery is sought (the "Defendant") of the specific Development Matters complained of and what actions are necessary to cure or correct same and (ii) the Defendant shall have been given at least forty-five (45) days (subject to extension by reason of matters beyond the control of the Defendant or because of the nature of the applicable Development Matter(s) and the time necessary to cure or correct same) in which to cure or correct the applicable Development Matter(s) and shall have materially failed to do so. THE DEVELOPER, THE ASSOCIATION, AND ALL OWNERS AND OTHER PERSONS ACQUIRING ANY RIGHT, TITLE OR INTEREST IN OR TO ANY UNIT, EACH HEREBY WAIVES TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM PERTAINING TO ANY DEVELOPMENT MATTERS. Without limiting the general binding effect of this Declaration, each Owner and other person acquiring any right, title or interest in or to any Unit shall be deemed, by virtue of the acceptance of the conveyance, grant, transfer or assignment thereof, to be fully bound by the provisions of this Section 28.9, as shall the Developer and the Association. 28.10 Gender; Plurality. Wherever the context so permits, the singular shall include the plural, the plural shall include the singular and the use of any gender shall be deemed to include all or no genders. 28.11 Captions. The captions herein and in the Exhibits annexed hereto are inserted only as a matter of convenience and for ease of reference and in no way define or limit the scope of the particular document or any provision thereof. 28.12 Conflict. In the event any of the provisions of this Declaration conflict with the provisions of the Articles and By-Laws, as they may be amended from time to time, the provisions of this Declaration shall control and prevail. Notwithstanding anything contained herein to the contrary, the powers and duties of the Association, and the rights and remedies of the Unit Owners as provided in the Act shall not be limited or abridged. 28.13 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 a guarantor or insurer of, the health, safety or welfare of any Owner, occupant or user of any portion of the Condominium Property and/or Association Property including, without limitation, Owners and their guests, invitees, agents, servants, DECLARATION OF CONDOMINIUM -_66- 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 properties 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 enforces or ensures the compliance with the laws of the United States, State of Florida, County and/or any other jurisdiction or the prevention of tortious activities; 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 Unit Owner (by virtue of his acceptance 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 causes 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 include within its meaning all of the Association's directors, officers, committee and board members, employees, agents, contractors (including management companies), subcontractors, successors and assigns, and any persons designated, from time to time, by the Association or by the Unit Owners to act on their behalf as directors, voting members or otherwise, with respect to the Association. The provisions hereof shall also inure to the benefit of the Developer, which shall be fully protected hereby. Notwithstanding anything contained herein to the contrary, the rights and remedies of each Unit Owner pursuant to Sections 718.111(3), 718.303 and 718.506, Florida Statutes, shall not be limited or abridged. 29. DISCLAIMER OF WARRANTIES. 29.1 GENERAL DISCLAIMER. DEVELOPER HEREBY DISCLAIMS ANY AND ALL EXPRESS OR IMPLIED WARRANTIES AS TO DESIGN, CONSTRUCTION, FURNISHING AND EQUIPPING OF THE CONDOMINIUM PROPERTY, EXCEPT AS MAY BE REQUIRED IN SECTION 718.618(6) OF THE ACT, TO THE EXTENT APPLICABLE. AS TO SUCH WARRANTIES WHICH CANNOT BE DISCLAIMED, AND AS TO OTHER CLAIMS, IF ANY, WHICH CAN BE MADE AS TO THE AFORESAID MATTERS, ALL INCIDENTAL AND CONSEQUENTIAL DAMAGES ARISING THEREFROM ARE HEREBY DISCLAIMED. DECLARATION OF CONDOMINIUM -_67- 29.2 SPECIFIC ADDITIONAL DISCLAIMERS OF REPRESENTATIONS, WARRANTIES AND LIABILITY. NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, HAVE BEEN GIVEN OR MADE BY DEVELOPER OR ITS AGENTS OR EMPLOYEES, UNLESS EXPRESSLY SET FORTH IN THIS DECLARATION, AND THE DEVELOPER HEREBY SPECIFICALLY DISCLAIMS ANY LIABILITY OR RESPONSIBILITY FOR THE FOLLOWING: (a) ANY MATTERS RELATING TO THE VIEWS, DESIGNS, SECURITY, SIZE (SQUARE FOOTAGE), AND PRIVACY OF THE UNITS AND OTHER PORTIONS OF THE CONDOMINIUM, AND THE DESIGN, HEIGHT AND DENSITY OF THE SURROUNDING PROPERTIES. (b) ANY MATTERS RELATING TO THE EXTERIOR LIGHTING SCHEME FOR THE IMPROVEMENTS WITHIN THE CONDOMINIUM, INCLUDING, WITHOUT LIMITATION, THE PROPOSED RETAIL, OFFICE AND COMMERCIAL PORTIONS OF THE CONDOMINIUM, WHICH MAY CAUSE EXCESSIVE ILLUMINATION AND MAY REQUIRE THE INSTALLATION OF WINDOW TREATMENTS. (c) THE PREVENTION OF TORTIOUS ACTIVITIES, THE SECURITY, HEALTH, SAFETY OR WELFARE OF ANY OWNER, OCCUPANT OR USER OF ANY PORTION OF THE CONDOMINIUM INCLUDING, WITHOUT LIMITATION, UNIT OWNERS AND THEIR TENANTS, GUESTS, INVITEES, AGENTS, SERVANTS, CONTRACTORS OR SUBCONTRACTORS. ANY PROVISIONS OF THIS DECLARATION, OR OF THE ARTICLES OR BY-LAWS, 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 RECIPIENT OF SUCH ASSESSMENT FUNDS TO PROTECT OR FURTHER THE HEALTH, SAFETY OR WELFARE OF ANY PERSON(S), EVEN IF ASSESSMENTS ARE CHOSEN TO BE USED FOR ANY SUCH REASON. (d) THE PHYSICAL CONDITION, ZONING, COMPLIANCE WITH APPLICABLE LAW, MERCHANTABILITY, USABILITY, FITNESS FOR A PARTICULAR PURPOSE OF ANY PORTION OF THE COMMON ELEMENTS OR OTHER PORTIONS OF THE CONDOMINIUM, INCLUDING, WITHOUT LIMITATION, THE SALE, OPERATION, LEVEL OR COST OF MAINTENANCE, TAXES OR REGULATION THEREOF. (e) BOWING AND/OR DEFLECTION OF MATERIALS, AND CRACKING AND SETTLEMENT OF IMPROVEMENTS, WHICH EACH OWNER RECOGNIZES AND AGREES IS TYPICAL IN THE TYPE OF IMPROVEMENTS IN THE CONDOMINIUM. DECLARATION OF CONDOMINIUM _=68 (fl MOLDS, MILDEW, TOXINS AND FUNGI WHICH, GIVEN THE CLIMATE AND HUMID CONDITIONS IN SOUTH FLORIDA, MAY EXIST AND/OR DEVELOP WITHIN THE UNITS, AND/OR OTHER PORTIONS OF THE CONDOMINIUM. EACH UNIT OWNER AGREES TO REGULARLY INSPECT THEIR UNITS FOR PLUMBING LEAKS, WATER ACCUMULATION, AND WATER INTRUSION THROUGH WINDOWS, DOORS AND ROOFS FOR ANY SIGNS OF MOLD AND REGULARLY MAINTAIN ADEQUATE AIR CIRCULATION AND VENTILATION BY CONTINUOUSLY OPERTAING ITS HVAC SYSTEM. (g) NOISE, MUSIC, LIGHTING, VIBRATIONS, ODORS, COMMOTION AND OTHER ACTIVITIES AND UNPLEASANT EFFECTS OF NEARBY CONSTRUCTION OR OTHER ACTIVITY, AND EMANATING FROM RESIDENTIAL UNITS OR COMMERCIAL UNITS OR THE SURROUNDING PROPERTIES, INCLUDING THE NEARBY METRORAIL STATION, WHICH BECAUSE OF ITS PROXIMITY TO THE CONDOMINIUM, MAY CREATE DISTURBANCES AND IMPEDE THE USE OF PORTIONS OF THE CONDOMINIUM. (h) ACTS OF GOD AND UNCONTROLLABLE EVENTS AND, GIVEN THE LOCATION OF THE CONDOMINIUM, THE EXPOSURE TO THE POTENTIAL DAMAGES FROM FLOODING AND FROM HURRICANES, INCLUDING WITHOUT LIMITATION, DAMAGES FROM STORM SURGES AND WIND-DRIVEN RAIN AND IN ANY PORTIONS OF THE IMPROVEMENTS LOCATED BELOW THE FEDERAL FLOOD PLAIN. (i) THE LEVEL OF SOUND TRANSMISSION BETWEEN AND AMONG UNITS AND THE OTHER PORTIONS OF THE CONDOMINIUM AND THE SURROUNDING PROPERTIES, WHICH, BECAUSE SOUND TRANSMISSION IN A BUILDING SUCH AS THE CONDOMINIUM IS VERY DIFFICULT TO CONTROL, MAY CREATE DISTURBANCES IMPEDE THE USE OF THE UNITS AND OTHER PORTIONS OF THE CONDOMINIUM. (j) THE LARGE TEMPERATURE FLUCTUATIONS IN THE UNITS, WHICH ARE LIKELY TO OCCUR DESPITE THE NORMAL OPERATIONS OF THE AIR CONDITIONING SYSTEMS, DUE TO THE LARGE AMOUNTS OF OUTDOOR GLASS WINDOWS AND DOORS AND THE LOCATION OF THE VARIOUS ROOMS WITHIN THE UNIT, AS WELL AS THE DIFFERING WEATHER CONDITIONS THROUGHOUT THE YEAR, AND WHICH WILL REQUIRE THE INSTALLATION OF INDOOR WINDOW TREATMENTS SUCH AS CURTAINS AND BLINDS. 29.3 EACH OWNER, BY ACCEPTING AND ACQUIRING TITLE TO A UNIT, AND EACH OTHER PERSON HAVING AN INTEREST IN OR LIEN UPON, OR MAKING ANY USE OF, ANY PORTION OF THE CONDOMINIUM (BY VIRTUE DECLARATION OF CONDOMINIUM -=69 OF ACCEPTING SUCH INTEREST OR LIEN OR MAKING SUCH USES), SHALL BE BOUND BY THIS ARTICLE, SHALL BE DEEMED TO HAVE ASSUMED THE RISKS ASSOCIATED WITH EACH OF THE ABOVE MATTERS AND OCCURRENCES AND SHALL BE DEEMED TO HAVE AUTOMATICALLY WAIVED ANY AND ALL RIGHTS, CLAIMS, DEMANDS AND CAUSES OF ACTION AGAINST THE DEVELOPER AND THE CONDOMINIUM ASSOCIATION ARISING FROM OR CONNECTED WITH ANY MATTER FOR WHICH THE LIABILITY OF THE AFOREMENTIONED PARTIES HAS BEEN DISCLAIMED IN THIS SECTION. 29.4 DISCLAIMERS OF REPRESENTATIONS, WARRANTIES AND LIABILITY. NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, HAVE BEEN GIVEN OR MADE BY DEVELOPER OR ITS AGENTS OR EMPLOYEES AND DEVELOPER HEREBY DISCLAIMS ANY AND ALL EXPRESS OR IMPLIED WARRANTIES, TO THE EXTENT PERMISSIBLE BY APPLICABLE LAW. AS TO SUCH WARRANTIES AND LIABILITIES WHICH CANNOT BE DISCLAIMED, AND AS TO OTHER CLAIMS, IF ANY, WHICH CAN BE MADE AS TO THE AFORESAID MATTERS, ALL INCIDENTAL AND CONSEQUENTIAL DAMAGES ARISING THEREFROM ARE HEREBY DISCLAIMED. 29.5 LIMITATION OF DAMAGES. AS TO SUCH WARRANTIES WHICH CANNOT BE DISCLAIMED, AND TO OTHER CLAIMS, IF ANY, WHICH CAN BE MADE AS TO THE AFORESAID MATTERS, ALL INCIDENTAL, SPECIAL, PUNITIVE AND CONSEQUENTIAL DAMAGES ARISING THEREFROM ARE HEREBY DISCLAIMED. ALL OWNERS, BY VIRTUE OF ACCEPTANCE OF TITLE TO THEIR RESPECTIVE UNITS (WHETHER FROM THE DEVELOPER OR ANOTHER PARTY) SHALL BE DEEMED TO HAVE AUTOMATICALLY WAIVED ALL OF THE AFORESAID DISCLAIMED WARRANTIES AND INCIDENTAL AND CONSEQUENTIAL DAMAGES. 29.6 REFERENCES TO DEVELOPER AND ASSOCIATION. AS USED IN THIS SECTION, REFERENCES TO DEVELOPER SHALL INCLUDE WITHIN THEIR MEANING ITS MEMBERS, PARTNERS, AND ITS SHAREHOLDERS, DIRECTORS, OFFICERS, BOARD MEMBERS, EMPLOYEES, AGENTS, CONTRACTORS, SUBCONTRACTORS, AND ITS SUCCESSORS AND ASSIGNS AND REFERENCES TO THE "ASSOCIATION" OR "CONDOMINIUM ASSOCIATION" SHALL ALL OF ITS DIRECTORS, OFFICERS, COMMITTEE AND BOARD MEMBERS, EMPLOYEES, AGENTS, CONTRACTORS (INCLUDING MANAGEMENT COMPANIES), SUBCONTRACTORS, SUCCESSORS AND ASSIGNS. <INTENTIONALLY LEFT BLANK> DECLARATION OF CONDOMINIUM -_7o- IN ,WITNESS WHEREOF, the Developer has caused this Declaration to be duly executed and its corporate seal to be hereunto affixed this day of 1200 ._ Witnessed by: Valencia South Miami, LLC, a Florida limited liability company By: Merrit Development, LLC, a Florida limited Name: liability company, as its sole Managing Member By Name: Name: Title: Address: STATE OF FLORIDA ) SS: COUNTY OF ) The foregoing Declaration was acknowledged before me, this _ day of , 200_, by , as of Merrit Development, LLC, a Florida limited liability company, as the sole Managing Member of Valencia South Miami, LLC, a Florida limited liability company. Such person is personally known to me. Name: Notary Public, State of Florida My Commission Expires: Serial Number (if any) DECLARATION OF CONDOMINIUM -_71- JOINDER Valencia South Miami Condominium Association, Inc., a Florida corporation not for profit, hereby agrees to accept all the benefits and all of the duties, responsibilities, obligations and burdens imposed upon it by the provisions of this Declaration and Exhibits attached hereto. IN WITNESS WHEREOF, Valencia South Miami Condominium Association, Inca has caused these presents to be signed in its name by its proper officer and its corporate seal to be affixed this day of , 200_. Witnessed by: VALENCIA SOUTH MIAMI CONDOMINIUM ASSOCIATION, INC., a Florida corporation not- for-profit Name: By: President Address: Name: (Corporate Seal) STATE OF FLORIDA ) SS: COUNTY OF ) The foregoing joinder was acknowledged before me this day of , 200_, by , as President of VALENCIA SOUTH MIAMI CONDOMINIUM ASSOCIATION, INC, a Florida corporation not-for-profit, on behalf of said corporation. Such person is personally known to me or produced a driver's license as identification. Name: Notary Public, State of Florida My Commission Expires: Serial Number(if any) DECLARATION OF CONDOMINIUM -_72- CONSENT OF MORTGAGEE THIS CONSENT is given as of the day of , 200_, by Corus Bank, N.A. ("Mortgagee"), being the owner and holder of that certain Mortgage dated March _, 200_from Valencia South Miami, LLC, a Florida limited liability company, to Mortgagee in the aggregate original principal amount of $50,000,000.00 recorded on , 20_, in Official Records Book Page of the Public Records of Miami-Dade County, Florida. WHEREAS, Mortgagor has requested Mortgagee to consent to the recording of the Declaration of Condominium of Valencia, a Condominium (the"Declaration"). NOW, THEREFORE, Mortgagee consents to the recordation of the Declaration. Mortgagee makes no warranty or any representation of any kind or nature concerning the Declaration, any of its terms or provisions, or the legal sufficiency thereof, and disavows any such warranty or representation as well as any participation in the development of Valencia, a Condominium (the "Condominium"), and does not assume and shall not be responsible for any of the obligations or liabilities of the developer contained in the Declaration or the prospectus, (if any) or other documents issued in connection with the promotion of the Condominium. None of the representations contained in the prospectus, (if any) or other documents shall be deemed to have been made by Mortgagee, nor shall they be construed to create any obligation on Mortgagee to any person relying thereon. This consent is limited to the purposes and requirements of Section 718.104, Florida Statutes, and does not affect or impair the rights and remedies of Mortgagee as set forth in the Mortgage or in the Declaration. Witnessed by: Corus Bank, N. A. By: Print Name: Print Name: Title: Address: Print Name: STATE OF FLORIDA ) SS: COUNTY OF ) The foregoing joinder was acknowledged before me this _day of , 200_, by , as of Corus Bank; N.A. Such person is personally known to me or produced a driver's license as identification. Name: Notary Public, State of Florida My Commission Expires: DECLARATION OF CONDOMINIUM -_73- z PROSPECTUS TABLE OF CONTENTS Description of Condominium............................................................................................................ 1 TheCommon Elements.................................................................................................................. 2 Maximum Number of Units that will use Facilities in Common with the Condominium ................. 2 Interests Offered for Sale................................................................................................................ 2 Recreational and Certain Other Commonly Used Facilities which are intended to be Used Only by Owners of the Residential Units in the Condominium ................................. 2 Recreational and Certain Other Commonly Used Facilities That Will be Used in Common With Other Owners in'the Condominium............................................................ 3 Expansion of Recreational Facilities.....1.......................................................................................... 4 Limited Common Elements and Residential Limited Common Elements...................................... 4 The Condominium Association....................................................................................................... 5 Leasing of Developer-Owned Units......:......................................................................................... 5 Management of the Condominium ................................................................................................. 6 Transfer of Control of the Condominium Association..................................................................... 6 Restrictions on Use of Units and Common Elements and Alienability........................................... 7 Easements Located or to be Located on the Condominium Property. ........................................ 16 Controlled Access and Surveillance............................................................................................. 17 Participation of Other Developers................................................................................................. 17 Disclaimer of Obligations.......................:...................................................................................... 23 Utilities and Certain Services........................................................................................................ 18 Apportionment of Common Expenses, Ownership of the Common Elements and Percentage Shares of Common Expenses...................................................................... 18 Estimated Operating Budget......................................................................................................... 19 AdditionalExpenses .......................:......................:...................................................................... 19 TitleInsurance........................................................................:...................................................... 21 SalesCommissions ...................................................................................................................... 21 TheDeveloper................................................................................................................................ 22 Mold................................................................................................................I.............................. 22 AdditionalMatters ..................................................................................................................I...... 23 Disclaimers.................................................................................................................................... 23 Evidenceof Ownership................................................................................................................. 25 General.....................................................'..................................................................................... 25 Definitions ................................................:.................................................................................... 25 EffectiveDate................................................................................................................................. 25 PROSPECTUS -I- VALENCIA,A CONDOMINIUM PROSPECTUS THIS PROSPECTUS CONTAINS IMPORTANT MATTERS TO BE CONSIDERED IN ACQUIRING A CONDOMINIUM UNIT. THE STATEMENTS CONTAINED HEREIN ARE ONLY SUMMARY IN NATURE. A PROSPECTIVE PURCHASER SHOULD REFER TO ALL REFERENCES,ALL EXHIBITS HERETO,THE CONTRACT DOCUMENTS,AND SALES MATERIALS. ORAL REPRESENTATIONS CANNOT BE RELIED UPON AS CORRECTLY STATING THE REPRESENTATIONS OF THE DEVELOPER.REFER TO THIS PROSPECTUS AND ITS EXHIBITS FOR CORRECT REPRESENTATIONS. PROSPECTUS -ii- SUMMARY THE CONDOMINIUM WILL BE CREATED AND UNITS WILL BE SOLD IN FEE SIMPLE INTERESTS. RECREATIONAL AND OTHER COMMONLY-USED FACILITIES MAY BE EXPANDED OR ADDED WITHOUT THE CONSENT OF UNIT OWNERS OR THE CONDOMINIUM ASSOCIATION. THE UNITS MAY BE TRANSFERRED SUBJECT TO A LEASE. THERE IS TO BE A CONTRACT FOR THE MANAGEMENT OF THE CONDOMINIUM. THE DEVELOPER HAS THE RIGHT TO RETAIN CONTROL OF THE CONDOMINIUM ASSOCIATION AFTER A MAJORITY OF THE UNITS HAS BEEN SOLD. THE SALE, LEASE OR TRANSFER OF UNITS IS RESTRICTED OR CONTROLLED. PROSPECTUS -III- PROSPECTUS: SUMMARY OF CERTAIN ASPECTS OF THE OFFERING Description of Condominium The name of the Condominium is Valencia, a Condominium (the "Condominium"). The Condominium will be located at 6001 SW 70 Street, South Miami, Florida 33143(the"Condominium Property"). Valencia South Miami, LLC, a Florida limited liability company (the "Developer' or the "Declarant"), is the owner of the unsold Units in the Condominium that are being offered for sale pursuant to this Prospectus. The Condominium will contain two hundred ninety four (294) residences (the "Residential Units") located in a six (6) story building (the"Building"). In addition to the Residential Units,there will be seven(7)commercial units(the"Commercial Units"),which may include retail shops, offices and other commercial uses permitted under Applicable Law. The Residential Units and the Commercial Units (collectively, the "Units"), will be located within the Building which also contains parking on the 1 St through 6th levels(the"Parking Areas").The Parking Areas do not include the off-street parking adjacent to the Building and the Condominium which is owned and maintained by the City of South Miami and there are no assurances as to the availability or the conditions for use of such parking in the future. The Units and Parking Areas are shown on Exhibit"1"to the Declaration of Condominium. The number of bedrooms and bathrooms planned for each Residential Unit is set forth in Exhibit"E" to this Prospectus. Except to the extent prohibited by the Act, Developer reserves the right to combine any two Units owned by Developer by installing or removing the walls separating the Units or combining the passage way through the interior walls of such Units. Notwithstanding the combination of any two Units, if any, the total number of Units in the Condominium, the apportionment of Common Expenses and ownership of the Common Elements attributable to each Unit, including the Units so combined, and the voting rights and membership in the Condominium Association shall remain the same as currently set forth in the Declaration of Condominium, as hereinafter defined. The Condominium will consist only of the Units, the Common Elements and the Limited Common Elements appurtenant to the Units, as described in this Prospectus and in the proposed Declaration of Condominium (the "Declaration of Condominium") attached hereto as Exhibit"A" and the survey and plot plan of the Condominium attached thereto as Exhibit "I". Various recreational facilities, including, without limitation, a swimming pool, pool deck, jacuzzi, fitness center, billiards room and clubroom as well as other amenities and the Parking Areas,which are all more particularly described in later sections of this Prospectus, will be included in the Common Elements of the Condominium. For purposes of this Prospectus, the dimensions of the Units are calculated from the unfinished surface of the exterior surfaces of the exterior walls bounding the Unit and the centerline of the partitioning walls between Units. This differs from other condominiums where the unit boundaries only extend to the interior unfinished surface of the exterior walls bounding the unit. Moreover, all dimensions and square footages are approximate and are subject to adjustments made by the surveyor in calculating the"as-built"dimensions of each Unit. Accordingly, the size of the Units and other facilities in the Condominium may vary by more than a nominal amount as a result of the method of measurement and other permitted changes. The construction, finishing and equipping of the Units and the Common Elements is substantially complete as of this date. Notwithstanding the foregoing, the Developer reserves the right to modify, alter, repair, demolish, construct, finish and equip the Units; provided, at all times, PROSPECTUS -1- such activities shall be maintained in accordance with the provisions of the Declaration of Condominium. The Common Elements The proposed Common Elements of the Condominium, which are hereafter described, will initially include the a pool and pool deck, jacuzzi, fitness center, billiards room, internet cafe, meditation garden, car wash area, barbeque area and mailroom, all of which will service the Residential Units of the Condominium,'as hereafter described.The Developer reserves the right, in its sole discretion,to alter or otherwise change the use of any such facilities.The Common Elements will be maintained, managed and operated, as hereafter described, by the Valencia South Miami Condominium Association, Inc., a Florida not-for-profit corporation(the"Condominium Association" or the "Association"). Maximum Number of Units that will use Facilities in Common with the Condominium Only the Owners and occupants of the Units, and their guests and invitees,will use facilities located within the Condominium. However, the Commercial Units and certain portions of the Common Elements will be open to members of the public in general. Interests Offered for Sale THE CONDOMINIUM WILL BE.CREATED AND UNITS WILL BE SOLD IN FEE SIMPLE INTERESTS. The Developer reserves the right to lease Units that are unsold. Recreational and Certain Other Commonly Used Facilities which are intended to be Used Only by Owners of the Residential Units in the Condominium The following facilities are located within the Common Elements of the Condominium are part of the Residential Limited Common Elements and are intended to be used exclusively by Owners and occupants of the Residential Units in the Condominium. In accordance with the terms of the Declaration, the costs of operating, maintaining, insuring, repairing, replacing and/or altering the Residential Limited Common Elements shall be deemed Residential Limited Common Expenses and shall by borne solely by and allocated among Residential Unit Owners. These facilities are currently intended to include, but are not necessarily limited to, the following (all to be located on designated portions of the Common Elements): Facility Location Approximate Estimated Approx. Size (Sq. Ft.) Completion Capacity Date (Persons) Swimming Pool First level 1653 sq. ft. (with Completed 33 (unheated) depth of 3 ft. to 5 ft.) Jacuzzi First level 60 sq. ft. July 2005 5 Clubroom First level 1302 sq. ft. Completed 87 Fitness Center First level 589 sq. ft. Completed 39 PROSPECTUS -2- Management Office First level 1348 sq. ft. Completed 6 Billiards Room First level 274 sq. ft. Completed 8 Internet Cafe First level 274 sq. ft. Completed 3 stations Meditation Garden First level 1800 sq. ft. July 2005 120 Car Wash Area First level 324 sq. ft. Completed 2 automobiles Swimming Pool First level 7050 sq. ft. Completed 230 deck and Barbeque Area Mailroom First level 178 sq. ft. Completed 306 All descriptions in this Prospectus of the locations, areas, capacities and sizes are approximations only. However, all facilities will be available for inspection by the prospective buyer and any condition or fact revealed by such inspection will control over any representations contained herein. The Developer will spend a minimum of$10,000 to purchase personal property for the above facilities, the kind, nature and value of which will be determined by the Developer in its sole discretion. The use of such facilities shall be subject to the restrictions and limitations set forth in the Declaration of Condominium and all Rules and Regulations now or hereafter enacted by the Condominium Association. The Condominium Association shall have the right to, among other things, prohibit dual usage of facilities by a Residential Unit Owner and its tenant during periods when the Residential Unit is being rented. All of the above facilities will be Residential Limited Common Elements of the Condominium governed by the Condominium Association. Recreational and Certain Other Commonly Used Facilities That Will be Used in Common With Other Owners in the Condominium Except for the Residential Limited Common Elements and the Parking Areas,at the present time there are no other recreational facilities or other commonly used facilities which are constructed (or planned to be constructed) on the Common Elements of the Condominium and none shall be committed to be built unless the Developer, it's successors or assigns, in its sole discretion,elects to do so. If and when constructed, these facilities would all be located on designated portions of the Condominium as Common Elements. Any such recreational facilities will be Common Elements maintained by the Condominium Association and the Residential Unit Owners along with their tenants,guests and invitees of the will be entitled to use these facilities subject to the Rules and Regulations set forth in Schedule "A"to the Bylaws attached hereto as Exhibit"4".The maximum number of Residential Unit Owners in the Condominium if and when these recreational facilities would be available for use by the Owners would be two hundred ninety four(294). There is no rent or other charge payable for the use of the Common Elements of the Condominium. Unit Owners will, however, be obligated to pay Assessments to the Condominium Association in order to pay the cost of operating and maintaining the Common Elements within the Condominium. PROSPECTUS -3- Expansion or Modification of Recreational Facilities RECREATIONAL AND OTHER COMMONLY USED FACILITIES MAY BE EXPANDED OR ADDED WITHOUT CONSENT OF UNIT OWNERS OR THE ASSOCIATION. With respect to the Condominium, see Sections 6.6 and 9.2 of the Declaration of Condominium. The Developer reserves, for itself and its affiliates, the right at any time to provide, expand, or modify any of the recreational facilities and/or amenities described in this Prospectus and to include such facilities as the Developer may, in its sole and absolute discretion, deem appropriate. The consent of the Unit Owners or the Condominium Association shall not be required for any such expansion or modification if the cost of construction of any such expansion or modification is borne exclusively by the Developer. The Developer is not obligated to expand such facilities, provide additional facilities or modify any planned facilities. Limited Common Elements and Residential Limited Common Elements Each Unit will be assigned at closing the exclusive use of one parking space, located on designated portions of the Parking Areas, which are within the Common Elements of the Condominium. All such parking spaces shall be Limited Common Elements of the Units to which they are assigned.Alternatively, at the Developer's sole option, each Unit may instead be assigned an irrevocable license to use such space, as provided in Section 3.3(d) of the Declaration of Condominium ("Parking License"). The Developer, for so long as it is offering Units in the ordinary course of business, and thereafter, the Condominium Association, shall be entitled to assign additional parking spaces„ "f-ant=i—larkimg-L-ieenses, to Unit Owners and their tenants, including without limitation, tenants of the Commercial Units, on a permanent or temporary basis,and receive all n }iGR fOF G inh assignments The Developer also reserves the right, in its sole discretion, to assign to a Unit(s) the exclusive use of any storage space(s), located in designated portions of the Common Elements of the Condominium.All such storage spaces shall be Limited Common Elements of the Units to which they are assigned. The Developer, for so long as it is offering Units in the ordinary course of business, and thereafter,the Condominium Association, shall be entitled to assign storage spaces to Unit Owners and their tenants, including,without limitation,tenants of the Commercial Units, on a permanent or temporary basis, and to receive all compensation for such assignments. Any patios,terraces, lanais, corridors, meter rooms,trash rooms, vault rooms,sidewalks(to the extent permitted under Applicable Law)and/or portions of the surface of the exteriorwalls of the Building adjacent to a Commercial Unit(s)may be assigned by the Developer as a Limited Common Element of one or more Commercial Unit(s) (the "Commercial Limited Common Elements” as defined in Section 2.12 of the Declaration) so that the Commercial Unit Owner may, from time to time, to the extent permitted by law, incorporate and use such areas in connection with, or relating to, the operations from the Commercial Unit. See Section 3.3(c)of the Declaration of Condominium for additional details. Each and every Residential Unit shall have appurtenant thereto the Residential Limited Common Elements as defined in Section 2.32 of the Declaration, and all costs of operating, maintaining, insuring, repairing, replacing, and altering the Residential Limited Common Elements (the"Residential Limited Common Expenses")shall be borne solely by the Residential Unit Owners. PROSPECTUS -4- The Condominium Association The Condominium is subject to the following association: Valencia South Miami Condominium Association, Inc. (the "Condominium Association") 301 Units (Maximum) Membership in the Condominium Association is associated with the Condominium and is mandatory for all Unit Owners. There is no recreation lease or land lease associated with the Condominium; however, each Unit and Unit Owner will be assessed for a share of the expenses relating to the operation, maintenance, upkeep and repair of the Common Elements, and any other recreational or other common facilities which may be constructed thereon, pursuant to the Declaration of Condominium. Notwithstanding the foregoing, only the Residential Units and Residential Unit Owners shall be assessed for a share of the expenses relating to the operation, maintenance, upkeep and repair of the Residential Limited Common Elements. For further information with respect to the Condominium Association, see Section 13 of the Declaration of Condominium. The Condominium Association is responsible for operating and maintaining the Common Elements of the Condominium. The Condominium Association shall have the power to assess Owners for a share of the expenses of such operation and maintenance, and for management fees, and to impose and foreclose liens in the event such Assessments are not paid when due. Reference should be made to the Declaration of Condominium, as well as the Articles of Incorporation and By- Laws of the Condominium Association (and all amendments and supplements thereto), for a complete explanation of the powers and responsibilities of the Condominium Association. See also the subsection hereof entitled "Operating Budget." The budget contained in this Prospectus as Exhibit"B" is the projected estimated budget for the Condominium Association for the year stated therein. Leasing of Developer-Owned Units THE UNITS MAY BE TRANSFERRED SUBJECT TO A LEASE. See Section 17.2 of the Declaration of Condominium. At this time the Developer may engage in a program of renting or leasing unsold Units and it reserves the right to continue to do so in the future. In the event any Unit is sold prior to the expiration of the term of a lease, title to such Unit will be conveyed subject to the lease and the buyer will succeed to the interests of the applicable landlord. If any Unit is sold subject to a lease, a copy of the executed lease will be attached to the Agreement in accordance with the terms of Florida Statutes, Section 718.503(1)(a)(4). If a Unit has been previously occupied,the Developerwill so advise a prospective buyer, in writing, prior to the time that such buyer is requested to execute an Agreement, if required by law. The Units have previously been occupied. If there is currently a tenant in a unit, under Florida Statutes, Chapter 718, Part VI (the"Condominium Act'),the tenant has the right to extend its lease for a period up to three hundred sixty (360) days from the date of receipt of a Notice of PROSPECTUS -5- Intended Conversion and the tenant has the right to purchase such unit for a period of forty five(45) days after receipt of the items required to be delivered pursuant to Section 718.612 of the Condominium Act, which period may be extended under certain circumstances. Because of the tenant's rights set forth above, each buyer acknowledges that its Agreement will be effective only if the tenant does not exercise its right of first refusal as set forth above. If the tenant exercises this right of first refusal to purchase such unit, the Agreement shall be null and void and of no further force and effect, and all monies held in escrow, and any interest thereon, if any, shall be returned to the buyer and all parties shall be relieved of their respective obligations. If any such tenant does not exercise its right of first refusal, then the Agreement shall remain in full force and effect, and the buyer shall purchase such unit subject to tenant's rights.At closing,the buyer shall assume all of the Developer's rights and obligations under the tenant's lease, if any,which is attached as Exhibit"B" to the Agreement. Management of the Condominium THERE IS TO BE A CONTRACT FOR THE MANAGEMENT OF THE CONDOMINIUM. It is intended that the Condominium Association will enter into a management contract with a licensed community association manager, which may be an affiliate of the Developer. Any fees payable under such a management contract will be part of the Common Expenses of the Condominium that are included in the Assessments of the Condominium Association payable by the Owners. Other than the Installation and Distribution Agreement attached here to as Exhibit"N",there are currently no management, maintenance or service contracts having a non-cancelable term in excess of one year. The Condominium Association is empowered, however, at any time and from time to time,to enter into such agreements upon such terms and conditions as its Board of Directors shall approve and without the consent of Unit Owners. If entered into, such maintenance and/or service contracts may be subject to cancellation by the Condominium Association and by Unit Owners directly in accordance with the Section 718.302, Florida Statutes (this is not, however, an admission or suggestion by the Developer, the Declarant, the Condominium Association, or any other relevant contractor, that any particular contract is, in fact, so cancelable). Transfer of Control of the Condominium Association THE DEVELOPER HAS THE RIGHT TO RETAIN CONTROL OF THE CONDOMINIUM ASSOCIATION AFTER A MAJORITY OF THE UNITS HAVE BEEN SOLD. For further information, see Section 718.301, Florida Statutes, and Section 4.15 of the By- Laws of the Condominium Association, a copy of which is attached as Exhibit"4"to the Declaration of Condominium. The Directors of the Condominium Association designated by the Developerwill be replaced by Directors elected by the Unit Owners, other than the Developer, in accordance with Section 718.301, Florida Statutes, and Section 4.15 of the By-Laws. Statement of Conversion Conditions The Condominium is being created by the conversion of existing improvements. To the fullest extent permitted by law, and except as noted below, each Unit shall be delivered in "AS IS" PROSPECTUS -6- condition without any express warranties or representations by the Developer, the Condominium Association or any broker or agent. No converter reserve accounts have been established pursuant to Section 718.618(1), Florida Statutes, and therefore, pursuant to Sections 718.618(6), Florida Statutes,the Developer is deemed to have granted to the buyer of each Unit, for the purposes or uses intended, implied warranties of fitness and merchantability, which are for a limited time period and which are limited only to the roof and structural components of the improvements; fireproofing and fire protection systems; and mechanical, electrical and plumbing elements serving the improvements or the Building, but not to mechanical elements serving only one Unit. To the fullest extent permitted by law, the Developer specifically disclaims any and all other warranties, including, without limitation, any and all warranties of merchantability and fitness as to the Condominium Property, the Building, the Units, and the appurtenances thereto, including any appliances, furniture, fixtures or personal property, subject only to the provisions of Sections 718.618(6), Florida Statutes, as outlined above. The statements contained in the Conversion Inspection Report of Qualified Architect or Engineer, which discloses the condition of the Condominium and is included as Exhibit"K"to this Prospectus pursuant to Section 718.616, Florida Statutes(the"Conversion Inspection Report"),are solely the opinions of Mr. Bruce C. Goddard, P.E., on behalf of Essex Engineering Corporation (the "Inspector") and they represent estimates based upon available information. Each buyer, by virtue of its execution of an Agreement, agrees and acknowledge that the Inspector is not affiliated with the Developer in any manner, and is a third party, independent contractor employed by the Developer to furnish the Conversion Inspection Report as required by the Florida Condominium Act. Each buyer is advised to review the Conversion Inspection Report carefully, including all disclaimers set forth therein. The Developer does not adopt or reject any of the conclusions or observations set forth in the Conversion Inspection Report,which are entirely the work of the Inspector. A copy of the termite inspection report is attached hereto and made a part of Exhibit"L"of this Prospectus (the "Termite Inspection Report") and are solely the opinions of Mr. John Wayne Spears Jr. on behalf of Turner Pest Control, LLC (the "Termite Inspector'). Each buyer, by virtue of its execution of an Agreement, agrees and acknowledge that the Termite Inspector is not affiliated with the Developer in any manner,and is a third party, independent contractor employed by the Developer to furnish the Termite Inspection Report as required by the Florida Condominium Act. Each buyer is advised to review the Termite Inspection Report carefully, including all disclaimers set forth therein. The Developer does not adopt or reject any of the conclusions or observations set forth in the Termite Inspection Report,which are entirely the work of the Termite Inspector. A letter countersigned by the City of South Miami (the "City"), acknowledging that the City has been notified of the proposed creation of the residential condominium by conversion of existing previously occupied improvements, and compliance with certain applicable zoning requirements, is attached to this Prospectus as the last page to Exhibit"K". Restrictions on Use of Units and Common Elements and Alienability THE SALE, LEASE OR TRANSFER OF UNITS IS RESTRICTED OR CONTROLLED. PROSPECTUS -7- The following is a summary of certain restrictions that affect the Units and the Owners and occupants thereof. For further information, see Sections 17 and 18 of the Declaration of Condominium. Except as specifically provided herein each Residential Unit shall be used for residential purposes only, whether for permanent or temporary use. All re-sales of Residential Units are subject to a right of first refusal in favor of the Condominium Association as set forth in Section 18 of the Declaration of Condominium (other than for those exceptions listed in Section 18.7 thereof). There are occupancy and use restrictions governing the use of the Residential Units. Occupancy and Use Restrictions. Except as otherwise herein expressly provided, each Residential Unit shall be used for residential purposes only. No business, profession or trade of any type shall be conducted on any portion of the Residential Units. This prohibition shall not be applicable to(a)the Commercial Units,which may be used for any lawful purpose, and may be used by the Owner(s)thereof and their guests, lessees, tenants and invitees; and (b)the Developer with respect to its development of the Condominium Property, its construction, repair, decorating, administration, sale rental or lease of Units, or its use of Units as models, V.I.P. or guest suites, or for sales offices or management services. Nothing herein shall be construed to prohibit ownership of a Unit by a domestic or foreign corporation or other entity. Occupancy in the Residential Units, except for temporary occupancy by visiting guests,shall not exceed two (2) persons per bedroom and one (1) person per den (as defined by the Condominium Association for the purpose of excluding from such definition living rooms, dining rooms, family rooms, country kitchens and the like). The provisions of this section shall not be applicable to Residential Units used by the Developer for model units, VIP suites, sales offices or management or other services. Unless otherwise determined by the Board of Directors of the Condominium Association,and except as otherwise provided in Section 17.2 of the Declaration of Condominium, a person(s) occupying a Residential Unit for more than one(1)month without the Unit Owner or a member of his family being present shall not be deemed a guest but, rather,shall be deemed a lessee for purposes of said section (regardless of whether a lease exists or rent is paid) and shall be subject to the provisions of the Declaration of Condominium which apply to lessees. The purpose of this paragraph is to prohibit the circumvention of the provisions and intent of the Declaration of Condominium pertaining to the approval of leases, and the Board of Directors of the Condominium Association shall enforce, and the Unit Owners shall comply with, this provision with due regard to such purpose. Leases. Leasing of Residential Units shall be subject to the prior written approval of the Condominium Association. Every lease of a Residential Unit shall specifically require a deposit from the prospective tenant in an amount not to exceed one (1) month's rent("Deposit"),to be held in an escrow account maintained by the Condominium Association, provided, however, that the Deposit shall not be required for any Unit which is rented or leased directly by or to the Developer. No lease of a Residential Unit shall be for a term of less than three (3) months. In no event shall a Unit be leased more than six (6) times within any calendar year, regardless of the lease term. When a Residential Unit is leased, a tenant shall have all use rights in Association Property and those Common Elements otherwise readily available for use generally by the Residential Unit Owners, and the Owner(s) of the leased Residential Unit shall not have such rights, except as a guest, unless such rights are waived in writing by the tenant. Nothing herein shall interfere with the access rights PROSPECTUS -8- of the Residential Unit Owner as a landlord pursuant to Chapter 83, Florida Statutes. The Condominium Association shall have the right to adopt rules to prohibit dual usage by a Residential Unit Owner and a tenant of Association Property and Common Elements otherwise readily available for use generally by Owners.Additionally, copies of all leases of Residential Units shall be submitted to the Condominium Association and the tenants thereunder must register with the Condominium Association prior to any occupancy. There are no leasing restrictions imposed upon the Commercial Units or any Residential Unit rented or leased directly by or to the Developer and all such Units may be leased on any terms that may be desired by the Commercial Unit Owner, or by the Developer, as applicable. Every lease shall provide (or, if it does not, shall be automatically deemed to provide)that a material condition of the lease shall be the tenant's full compliance with the covenants, terms, conditions and restrictions of the Declaration of Condominium(and all exhibits thereto), and with any and all Rule and Regulations adopted by the Condominium Association from time to time(before or after the execution of the lease).The Unit Owner will be jointly and severally liable with the tenant to the Condominium Association for any amount which is required by the Condominium Association to repair any damage to the Common Elements from the acts or omissions of tenants(as determined in the sole discretion of the Condominium Association)and to pay any claim for injury or damage to property caused by the negligence of the tenant and a Special Charge may be levied against the Unit therefore. All leases are hereby made subordinate to any lien filed by the Condominium Association, or of the Condominium Association, whether prior or subsequent to such lease. Children. Children are permitted to reside in the Residential Units. See Section 17.3 of the Declaration of Condominium and Rule 3 of the Rules and Regulations attached to the By-Laws as Schedule A thereto. Pet Restrictions. No more than two(2)household pets(as may be defined and re-defined by the Condominium Association)shall be maintained in any Residential Unit or any Limited Common Element appurtenant thereto. The maximum total weight of any such household pets shall be limited to an aggregate of sixty (60) pounds. Notwithstanding the foregoing, the maximum total weight for any one household pet may not exceed forty(40) 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, 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. Residential 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 Section 19 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 Residential Unit Owners (as provided in any applicable Rule and Regulations) and/or to require any pet to be permanently removed from the Condominium. Use of Common Elements and Association Property. No portion of the Units, the Limited Common Elements, the Common Elements, or the Condominium shall be used for any purpose other than those reasonably suited for furnishing the services and facilities incident to the use of the Units.The Common Elements shall not be obstructed, littered, defaced, or misused in any manner. PROSPECTUS -9- In no event shall any Unit Owner or occupant place, or permit the placement of, any item that obstructs, or otherwise impedes access to, any portions of the Condominium that are either designated or used as delivery and receiving areas. Nothing herein or elsewhere in the Declaration of Condominium or the Rules and Regulations shall prohibit or impede any Commercial Unit Owner from using any Limited Common Element(s)appurtenant to its Commercial Unit for any commercial services or other retail services provided such Commercial Unit Owner has obtained all necessary permits and approvals from the appropriate governmental authorities for such use. Nuisances. No nuisances (as defined by the Condominium Association from time to time) shall be allowed on the Condominium orAssociation Property, nor shall any use,custom or practice be allowed which is a source of annoyance to occupants of Units or which interferes with the peaceful possession or proper use of the Condominium and/or Association Property by its residents, occupants or members. The Board of Directors shall have the right to determine if any equipment, fixture, improvement, materials or activity producing such noise or odor constitutes a nuisance. Notwithstanding the foregoing, no activity specifically permitted by the Declaration of Condominium, including,without limitation, activities or businesses conducted from the Commercial Units,shall be deemed a nuisance, regardless of any noise,odors or traffic emanating therefrom(except, however, to the extent that such noise, odors or traffic exceed the limits, if any, permitted by Applicable Law). By acquiring a Unit, each Owner shall be deemed to acknowledge and agree that: a) it is intended(without creating any obligation)thatthe Commercial Units will include retail shops, offices and other commercial uses and that such operations may result in the creation of noise, music, and odors which may affect other portions of the Condominium Property; b) that the Commercial Units may attract customers, patrons and/or other members of the public who are not members of the Condominium Association, resulting in additional traffic over and upon the Common Elements; and c)that any such matters or conditions shall not be deemed a nuisance hereunder and that neither the Developer, any Commercial Unit Owner, or any tenant of a Commercial Unit, shall be liable for any damages or other liability resulting therefrom. Outside Items. No rubbish, garbage, refuse or trash shall be kept, stored or allowed to accumulate on any portion of the Condominium Property, except within designated trash receptacles. No linens, clothing, household fabrics, curtains, rugs, or laundry of any kind shall be hung, dried or aired from any windows, doors, balconies, terraces, or other portions of the Condominium. No articles shall be placed on balconies, patios or similar areas. The foregoing shall not prevent placing and using patio-type furniture, planters and other items in such areas if the same are normally and customarily used for a residential balcony, patio or terrace area. In the event of any doubt or dispute as to whether a particular item is permitted hereunder,the decision of the Board of Directors shall be final and dispositive. See Section 17.7 of the Declaration of Condominium for additional restrictions. Firearms. The discharge of firearms and fireworks within the Condominium is prohibited. The term "firearms" includes "13-13"guns, pellet guns, and other firearms of all types, regardless of size. No Improper Uses. No improper, offensive, hazardous or unlawful use shall be made of the Condominium Property or any part thereof, and all valid laws,zoning ordinances and regulations of all governmental bodies having jurisdiction thereover shall be observed.Violations of laws, orders, rules, regulations or requirements of any governmental agency having jurisdiction thereover, relating to any portion of the Condominium Property, shall be corrected by, and at the sole expense of, the party obligated to maintain or repair such portion of the Condominium Property, as elsewhere herein set forth. Notwithstanding the foregoing and any provisions of this Declaration, the Articles of PROSPECTUS -10- Incorporation or the By-Laws, the Association shall not be liable to any person(s) for its failure to enforce the provisions of Section 17.9 of the Declaration. No activity specifically permitted by this Declaration shall be deemed to be a violation of this section. Alterations or Additions. No Owner of a Residential Unit shall cause or allow improvements or changes to the structure or exterior of any Residential Unit or Limited Common Elements, Common Elements or Association Property, or in any manner change the appearance of any portion of the exterior of the Building, without obtaining the prior written consent of the Condominium Association in the manner specified in Section 9.1 of the Declaration of Condominium. No spas, hot tubs, whirlpools or similar improvements shall be permitted on any patio or balcony. See Sections 9.1 and 17.10 of the Declaration for details. Anything to the contrary notwithstanding, the restrictions of this section shall not apply to Commercial Units. Additionally, each Commercial Unit Owner shall have the right, without the consent or approval of the Condominium Association, or any other Unit Owner or other party, other than the applicable governmental authorities, if and to the extent such approvals are required, to make alterations, additions or improvements, structural and non-structural, interior or exterior, ordinary or extraordinary, in, to and upon any Commercial Unit owned by it and any Limited Common Element terraces, patios, lanais, decks or other areas appurtenant thereto, including without limitation, the removal of walls, floors, decorative ceilings and other portions thereof, the installation or placement of signage, equipment, furniture, tables, chairs and other furnishings or equipment on any patios and/or terraces appurtenant thereto.The Owner of the Commercial Unit to which any such additions, alterations or improvements have been made, and its successors and assigns, shall indemnify, defend and hold harmless the Condominium Association, the Developer and all other Unit Owners from any and all claims, losses,damages and expenses arising from such alterations, additions or improvements, and shall be solely responsible for the maintenance, repair and insurance thereof. Notwithstanding the foregoing, any additions, alterations or improvements must comply with all applicable governmental codes, ordinances and other requirements. Sound, Weight and Flooring Restrictions. Except for the installation of any hard and/or heavy surface floor coverings, such as tile, marble, wood, and the like, in the bathrooms, kitchens and foyers of the Residential Units or in any portion of the Commercial Units,the installation of such hard and/or heavy surface floor coverings other than as installed by the Developer shall be subject to (a) approval in writing by the Board of Directors, (b) meet applicable structural and sound insulation requirements, and (c) be compatible with the overall structural design of the Building. Additionally, the installation in any Residential Unit of any improvement or heavy object must be approved by the Board of Directors and must be compatible with the overall structural design of the Building. In no event shall any heavy object, which would exceed a live load limit of 50 pounds per square foot, be placed in any Residential Unit. The Board of Directors may require a structural engineer to review certain of the proposed improvements,with such review to be at the Owner's sole expense.Additionally,the Board may require Unit Owners to furnish it with certifications of the floor assembly Impact Isolation Class rating from the installers of such surfaces. The color and exact materials to be used on balcony floor coverings must also be approved in writing by the Board of Directors. Any use guidelines set forth by the Condominium Association shall be consistent with good design practices for the waterproofing and overall structural design of the Building. Owners will be held strictly liable for violations of these restrictions and for all damages resulting therefrom and the Condominium Association has the right to require immediate removal of violations. Applicable warranties of the Developer, if any, shall be voided by violations of these restrictions and requirements.A waterproofing system is to be placed on the concrete surface of the balcony prior to the installation of the setting bed and tile. This waterproofing system must be as recommended by the manufacturer of the tile setting material and the installation must follow the waterproofing PROSPECTUS -11- manufacturer's written recommendations. Each Owner acknowledges that sound transmission in a building such as the Condominium is very difficult to control, and that noises from adjoining or nearby Units and/or mechanical equipment can often be heard in another Unit. The Developer does not make any representation or warranty as to the level of sound transmission between and among Units and the other portions of the Condominium Property, and each Owner shall be deemed to waive and expressly release any such warranty and claim for loss or damages resulting from sound transmission. Exterior Improvements. Without limiting the generality of Section 9.1 or 17.12 of the Declaration of Condominium specifically permitting same,including without limitation,the exemption of the Commercial Units in Section 17.12 of the Declaration of Condominium, no Unit Residential Unit Owner shall cause anything to be affixed or attached to, hung, displayed or placed on the exterior walls, doors, balconies or windows of the Residential Units or the Limited Common Elements appurtenant thereto (including, but not limited to, awnings, canopies, shutters, window coverings, signs, screens,window tinting,fixtures and equipment),without the prior written consent of the Condominium Association. No painting or changes in the exterior colors of any Residential Units or the Limited Common Elements shall be permitted. Signs. No sign, poster,display, billboard or other advertising devices of any kind including, without limitation, "FOR SALE", "FOR RENT", security services or construction signs shall be displayed to the public view on any portion of the Residential Units, and the Limited Common Elements appurtenant thereto or Common Elements, without the prior written consent of the Condominium Association, except, (a) signs, regardless of size, used by the Developer, its successors or assigns, including signs for construction or repairs,advertising, marketing, promotion, sale, leasing, and rental activities, (b) and bulletin boards, entrance, directional, informational and similar signs used by the Condominium Association. Notwithstanding anything to the contrary in this Declaration, the Owners of the Commercial Units may affix or attach lighted or unlighted signs on the exterior walls, doors, adjacent terraces, patios, lanais and/or windows of the Building (whether same are a part of the Commercial Unit,the Limited Common Elements appurtenant thereto, or the Common Elements) adjacent to the Owner's Commercial Unit, or to the windows of the applicable Commercial Unit, without receiving the consent of the Condominium Association,the Board or any other party(other than any applicable governmental authority to the extent that prior approval from them is required by applicable governmental codes, ordinances and/or regulations). Lighting. All exterior lights and exterior electrical outlets in the Residential Units and the Limited Common Elements appurtenant thereto must be approved in accordance with Section 9 of the Declaration of Condominium. Exterior Sculpture and Similar Items. Exterior sculpture and similar items in the Residential Units and the Limited Common Elements appurtenant thereto must be approved in accordance with Section 9 of the Declaration of Condominium. Notwithstanding the foregoing, any Unit Owner may respectfully display one (1) portable, removable American flag, and, on Armed Forces Day, Memorial Day, Flag Day, Independence Day, and Veterans Day, any Unit Owner may respectfully display portable, removable official flags, not larger than four and one-half feet by six feet(4'6"x 6') that represent the United States Army, Navy, Air Force, Marine Corps, or Coast Guard. Air Conditioning Units. No window or wall mounted air conditioning units may be installed in any Unit. Units with large amounts of outdoor glass windows and doors are susceptible to large temperature fluctuations, based upon the location of the various rooms within the Unit,as well as the differing positions of the sun throughout the day and the differing weather conditions throughout the year. The normal operations of the air conditioning systems in the Units may not fully compensate PROSPECTUS -12- for these temperature fluctuations and additional adjustments, through the use of indoor window treatments such as curtains and blinds, may be necessary. Outside Installations. No radio station or short-wave operations of any kind shall operate from any Residential Unit, the Limited Common Elements appurtenant thereto or Common Elements. Except to the extent permitted under Applicable Law, no exterior satellite dish, or other transmitting or receiving apparatus, radio antenna,television antenna or other antenna of any type shall be erected or maintained on the Common Elements, Limited Common Elements, or Residential Units, without the prior written consent of the Condominium Association. Notwithstanding the foregoing, upon obtaining the prior written consent of the Condominium Association, satellite dishes, and other devices permitted under Applicable Law, may be installed within the Residential Units or within any Limited Common Elements appurtenant thereto,provided, however, that in no event shall any such device be installed in or on any other portion of the Condominium Property. To the extent permissible under Applicable Law, the Condominium Association may enact Rules and Regulations, requiring that any such devices which may be permitted under Applicable Law are comparable in size, weight and appearance, are installed and maintained in a manner designed to protect the safety of the Building and its occupants and satisfy any standards established by the Condominium Association for architectural appearance purposes. Window and Door Treatments. No reflective film, tinting or window coverings shall be installed on any windows or glass doors in any Residential Unit, except as necessary to replace or restore tinting of glass surfaces as originally installed, unless approved by the Condominium Association in accordance with Section 9 of the Declaration of Condominium. Curtains,drapes and other window coverings(including their linings)in Residential Units,which face on exterior windows or glass doors, or are visible from the exterior of the Building, shall be white or off-white in color, unless otherwise specifically approved by the Board of Directors. No aluminum foil may be placed in any window or glass door of a Residential Unit, and no reflective substance may be placed on any glass in a Residential Unit, except for any substance previously approved by the Board of Directors for energy conservation or hurricane protection purposes. No unsightly materials may be placed on any window or glass door or shall be visible through such window or glass door. Any screen door must be of a uniform type approved by the Condominium Association. The restrictions set forth herein shall not apply to the Commercial Units. Parking and Vehicle Restrictions. No person shall park any vehicle so as to obstruct or otherwise impede ingress or egress to any parking spaces, including without limitation,to a parking space assigned to any other Unit. Parking in the Condominium shall be restricted to private automobiles and passenger-type vans, jeeps and pick-up trucks and sport utility vehicles, motorcycles, motor scooters as well as vans, trucks or other commercial vehicles used by the Owners or occupants of the Commercial Units to deliver, cater or otherwise provide services or inventory to such Commercial Unit (all of which are collectively referred to herein as "vehicles"). Except as otherwise permitted in this section no person shall park, store or keep on any portion of the Condominium any large type commercial type vehicle (for example, dump truck, motor home, trailer, cement mixer truck, oil or gas truck, delivery truck), except temporarily in designated guest parking locations or delivery locations, nor may any person keep any other vehicle in the Condominium which is deemed to be a nuisance by the Board. No trailer, camper, motor home or recreational vehicle shall be used as a residence,either temporarily or permanently,or parked in the Condominium. The Condominium Association shall have the authority to prohibit any vehicle, including any motorcycle or motor scooter, which it determines constitutes a nuisance due to its noise level, particularly where such vehicle is operated in the early morning or late evening hours. No vehicle is permitted within the Condominium 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 PROSPECTUS -13- Condominium. No more than one(1)motorcycle or motor scooter may be parked in a single space, and in no event may a motorcycle or a motor scooter be parked in the same parking space as another vehicle or between any parking spaces. For so long as the Developer conducts any sales or leasing activities within the Condominium or for so long as any Commercial Unit exists as part of the Condominium their use of parking spaces shall not be impeded or restricted. 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 Condominium Association, or its management companies. Subject to Applicable Laws and ordinances, any vehicle, boat, motorcycle or trailer parked in violation of these or other restrictions contained herein or in the Rule and Regulations may be towed by the Condominium Association at the sole expense of the owner of such vehicle. The Condominium 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. No Owner or occupant of a Unit shall park more than an aggregate total of three vehicles on the Condominium Property. Unit Maintenance. Each Unit Owner must undertake or must designate a responsible firm or individual to undertake his general maintenance responsibilities,which responsibilities shall include, at a minimum, maintaining the exterior appearance of the Unit and the Limited Common Elements appurtenant thereto, safeguarding the Unit and the Limited Common Elements to prepare for hurricane or tropical storm watches and warnings by, among other things, removing any unfixed items on balconies and terraces, and repairing the Unit and the Limited Common Elements in the event of any damage therefrom. An Owner may designate a firm or individual to perform such functions for the Owner, but such designation shall not relieve the Owner of any responsibility hereunder. The name(s) and addresses of such firm or individual must be furnished to the Condominium Association.The designation of such firm or individual shall be subject to the approval of the Condominium Association. Hazardous Substances. No flammable, combustible or explosive fluids, chemicals or other substances may be kept in any Residential Unit, Limited Common Elements appurtenant thereto or Common Elements, except such as are generally used for normal household purposes. No electric, gas, charcoal barbecue or other cooking devices, or outside cooking, is permitted on any patio or balcony. Without limiting the generality of the foregoing, such prohibitions shall not apply to the Commercial Units that utilize such hazardous substances in the ordinary course of business provided however, the Owners or occupants of such Commercial Units has obtained all requisite governmental approvals. Mold Prevention. No Owner of a Residential Unit shall install, within such Unit, its Limited Common Elements appurtenant thereto or upon the Common Elements and/or Association Property, non-breathable wall-coverings or low-permeance paints. Additionally, any and all built-in casework,furniture, and or shelving within a Residential 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. Further, all Owners of Residential Units, whether or not occupying such Unit, shall continuously run the air conditioning system to minimize humidity in the Unit. While the foregoing is intended to minimize the potential development of mold and other microtoxins, the Developer does not make any representations or warranties regarding the existence or development of molds or microtoxins 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 molds, mildew, spores,fungi and/or other microtoxins. PROSPECTUS -14- Play Equipment, Strollers, Etc. Bicycles, tricycles, scooters, skateboards, and other play equipment, baby strollers and similar items shall not at any time be left in the hallways or other Common Elements or in the Limited Common Elements (including balconies,terraces and patios). Use of Residential Limited Common Elements. In order to preserve the community and congenial values of the Residential Units, neither the Owners of Commercial Units northeir tenants, occupants, guests and/or invitees shall be permitted to use the Residential Limited Common Elements. Nothing herein shall prohibit the Owners of Commercial Units or their tenants from using any other commonly used facilities in the Condominium including, without limitation, the Parking Areas. For these and other restrictions on the use of the Residential Units, Limited Common Elements and Common Elements, in addition to the specific references noted above, reference should be made to all Exhibits contained in this Prospectus (particularly Sections 9 and 17 of the Declaration of Condominium, and the Rules and Regulations attached as Schedule "A"to the By- Laws of the Condominium Association). Certain of the Restrictions described above do not apply to the Developer or the Declarant.This means, among other things,that the Developer, in its sole and absolute discretion, will be free to use its unsold Units in the Condominium as temporary accommodations in connection with construction, marketing, promotion or sales activities, or as guest facilities for its guests and invitees (including prospective buyers visiting the Condominium), and that the Developer may use one or more of its unsold Units as models, sales offices or guest facilities in connection with its selling or leasing of Units or other activities in the Condominium. However,the Developer is subject to the pet restrictions, and to the requirement that the prior written approval of the Condominium Association be obtained for leases of Residential Units, which are set forth in Section 17 of the Declaration of Condominium and in the Rules and Regulations attached as Schedule"A"to the By- Laws of the Condominium Association.The Developer is also subject to any restrictions on the type of vehicles allowed to park on the Condominium Property; however the Developer and its designees shall be exempt from any such restrictions if the vehicle is engaged in any activity relating to construction, maintenance or marketing of Units, or other facilities within the Condominium. In enforcing its rights hereunder, the Developer shall also be entitled to bring an action and recover sums due for damages, injunctive relief, or any combination thereof, and the Developer shall be entitled to recover all legal fees and expenses incurred in connection with any such action. Except to the extent prohibited by the Act and as specifically provided otherwise certain of the restrictions described above do not apply to the Commercial Units or occupants thereof.This means, among other things,that a Commercial Unit Owner,in its sole and absolute discretion, will be free to use its Commercial Unit in the Condominium for any lawful business, including, without limitation, retail shops, offices, and other commercial activities. For restrictions on the use of the Commercial Units,the Limited Common Elements appurtenant thereto and Common Elements, in addition to the specific references noted above, reference should be made to all Exhibits contained in this Prospectus (particularly Sections 17 of the Declaration of Condominium, and the Rules and Regulations attached as Schedule "A" to the By-Laws of the Condominium Association). Without limiting the generality of the foregoing no amendment may be adopted to the Declaration, the Articles, the By-Laws or any Rule and Regulations governing the Condominium Property(other than an amendment adopted by the Developer alone pursuant to any reserved rights it may have under this or any other documents)which would eliminate, modify, prejudice, abridge or otherwise adversely affect any rights, benefits, privileges or priorities granted or reserved to the PROSPECTUS -15- Commercial Unit Owners, without the consent of at least 80% of all voting interests in the Condominium. Easements Located or to be Located on the Condominium Property. The Condominium is,will or maybe made subject to the easements described below,as well as additional easements provided for in the Declaration of Condominium.Any easement in favor of a public or private utility or similar company or authority may be granted by the Developer or by the Condominium Association on a "blanket" basis or by use of a specific legal description. See the section herein entitled "Utilities and Certain Services" for the names of the suppliers of certain utilities to the Condominium. A. Support. Each Unit, the Common Elements and the other portions of the Building shall have an easement of support and necessity in favor of all other Units, the Common Elements, and any other structure or improvement in the Building or the remainder of the Condominium. B. Utility and Other Services; Drainage. Non-exclusive easements are reserved under, through and over the Condominium, as may be required from time to time, for utility and other services and drainage in order to serve the Condominium.A Unit Owner shall do nothing within or outside its Unit that interferes with or impairs, or may interfere with or impair, the provision of such utility or other service or drainage facilities or the use of these easements. The Condominium Association or its agents shall have an irrevocable right of access to each Unit and to the Limited Common Elements to maintain, repair or replace the pipes, wires, ducts, vents, cables, conduits and other utility, cable television, communications and similar systems, hot water heaters,services and drainage facilities,and to Common Elements contained in the Unit or elsewhere in the Condominium, and to remove any improvements interfering with or impairing such facilities or easements herein reserved; such right of access, except in the event of an emergency, shall not unreasonably interfere with the Unit Owner's permitted use of the Unit and Limited Common Elements,and except in the event of an emergency, entry shall be made on not less than one (1) day's notice (which notice shall not, however, be required if the Unit Owner is absent when the giving of notice is attempted). C. Sales, Marketing, Development and Leasing Activities. For so long as the Developer is offering units in the ordinary course of business,the Developer, its designees, successors and assigns, shall have (i) the right to use any Units owned or leased by Developer, and any other part of the Common Elements or Association Property, for guest accommodations, models and sales and construction offices,to show model Units and the Common Elements to prospective purchasers and lessees of Units, and to use Units as guest suites, in the Condominium, and to erect on the Condominium Property and Association Property signs and other promotional materials to advertise Units for sale or lease; (ii)such easements over, upon, across and under the Condominium Property as may be reasonably required in connection with the development, construction, decoration, marketing, sale or leasing of any Unit within the Condominium Property, or within any other property owned by the Developer or any of its affiliates within the surrounding vicinity. D. Commercial Units. Without limiting the generality of the foregoing, the Owners and tenants of the Commercial Units, and their employees, guests and invitees, shall have: (1) any and all easements as necessary or desirable to enable the Commercial Unit Owners and the occupants, tenants, servants and/or employees of the Commercial PROSPECTUS -16- Units to have unrestricted access to the Parking Areas upon the same terms and conditions as the Owners and occupants of the Residential Units; and (2) to the extent that any Commercial Unit has (a) HVAC and/or other mechanical equipment serving only its Commercial Unit (collectively, "Commercial Mechanical Equipment"), whether located therein or on any other portion of the Common Elements, or(b) is connected to, or derives service (utility or otherwise)from, any meter room, transformer room or other room located within the Condominium Property, and/or from the equipment contained in such rooms and any pipes, lines, ducts, wires and other items which connect the Commercial Unit to such rooms (collectively, the "Utility Equipment"), then any and all easements over and across portions of the Condominium Property as may be reasonably necessary to enable the Commercial Unit Owners, the occupants and/or tenants of the Commercial Unit(s) or their contractors, agents, designee to install, maintain, operate, repair, replace and/or alter the Commercial Mechanical Equipment or Utility Equipment. Notwithstanding anything to the contrary contained in this Subsection D. in exercising any of the easements granted herein, the Commercial Unit Owners may not impair service to any Unit(s) and/or the Common Elements and must comply with Applicable Law. Controlled Access and Surveillance At the present time there is a garage entry facility which limits access into the Condominium. However, such facility will not fully restrict access to the Condominium and will be subject to modification, replacement or removal. Moreover, portions of the Parking Areas will be made available to the Commercial Unit Owners, their tenants, occupants, servants and/or employees. The Board of Directors of the Condominium Association will determine,in its sole discretion, the controlled access and surveillance provisions, if any, for the Condominium. The existence, scope or adequacy of any controlled access and surveillance is not guaranteed or insured. It should be recognized that under normal circumstances errors in judgment, equipment malfunctions and some invasion of privacy may occur. Neither the Condominium Association, the controlled access . or, surveillance providers, the manager of the Condominium Association, nor the Developer or its affiliates, are guarantors or insurers of the safety of persons or property and none of the safety- related measures undertaken by any of such parties, if any, are intended to serve in the place of authorized police or fire/rescue personnel. In order to achieve economies of scale, the Condominium Association may contract with third parties to provide services forthe Condominium in this regard. Controlled-access personnel shall have the right to stop and question persons in the Common Elements, or elsewhere within the Condominium Property, and to require satisfactory evidence of such person's status as an Owner, guest, tenant or invitee. Participation of Other Developers The Declarant may assign all or any portion of its rights under the Declaration of Condominium. In the event of a full ("blanket") assignment of all of the Declarant's rights (or remaining rights)to a successor, assignee or pledgee,the result of which is that the Declarant named herein shall no longer have any rights, such assignee shall be deemed the Declarant for all purposes. In the event of an assignment of less than all of the rights of the Declarant, the assignee shall not be deemed the Declarant, but may exercise such rights of the Declarant as are specifically assigned to it. Any partial (but not"blanket")assignment of the Declarant's rights may be made on a non-exclusive basis and/or for a limited purpose or period of time. Any person or entity as to whom or which all or certain of the Declarant's rights hereunder have been assigned may further assign such assignee's rights,in whole or in part, unless restricted or prohibited in the assignment made by the Declarant or a successor assignor thereof. PROSPECTUS -17- Utilities and Certain Services Utilities and certain other services will be furnished as follows: Electricity Florida Power.& Light Company Gas None Telephone BellSouth Water Miami-Dade Water and Sewer Authority (WASA) Sanitary Sewage and Waste Disposal Miami-Dade Water and Sewer Authority (WASA) Solid Waste Removal Waste Management Storm Drainage Private system of natural and artificial percolation and run-off Cable or Satellite Television Basic cable or satellite television service will be provided, at a cost to be determined, through Charter Communications, LLC, and will be paid for in the individual rates as more particularly described in Exhibit "N". "Premium" cable service will be available to Unit Owners on an optional basis at an additional cost. Fire and Rescue Services City of South Miami Fire Rescue Division . Police Protection City of South Miami Police Department Trash Re-Cycling Trash chute system and equipment to be leased from a private contractor The above utilities and services will be billed to the Condominium Association and treated as Common Expenses,with the exception of electricity, telephone,water and cable service which will be billed directly to each Unit Owner. Apportionment of Common Expenses, Ownership of the Common Elements and Percentage Shares of Common Expenses Each Unit will include an undivided interest in the Common Elements of the Condominium and shall be obligated for its proportionate share of the Common Expenses.Generally speaking,the Common Elements include the Limited Common Elements, and will consist of all portions of the Condominium, other than Association Property, if any, not included in the Units. The Common Expenses of the Condominium Association include all expenses and Assessments properly incurred by the Condominium Association for the Condominium which are to be shared by the Unit Owners, including without limitation, (a) the costs of maintaining, operating and insuring the Common Elements of the Condominium,and(b)the real property taxes,Assessments and other maintenance expenses attributable to any Units acquired by the Condominium Association or any Association Property and/or rental or other expenses owed in connection with any Units leased by the Condominium Association. Each Unit's percentage interest in the Common Elements, and its percentage share of the Common Expenses of the Condominium Association, have been computed based on the approximate square footage of the Unit in relation to the total square footage of all of the Units in the Condominium, and is set forth in Exhibit"2"to the Declaration of Condominium. PROSPECTUS -18- Further, each Residential Unit's percentage interest in the Residential Limited Common Elements, and its percentage share of the Residential Limited Common Expenses of the Condominium Association, have been computed based on the approximate square footage of the Residential Unit in relation to the total square footage of all of the Residential Units in the Condominium, and is set forth in Exhibit"2-B" to the Declaration of Condominium. The estimated operating budget'. of the Condominium Association for the first year of operation (commencing with the closing of the first Unit)is contained in Exhibit"B"attached hereto. Estimated Operating Budget The Estimated Operating Budget for the Condominium Association is attached as Exhibit "B" to this Prospectus. To the extent permitted by Applicable Law, and prior to the turnover of control to the Unit Owners and members thereof, the Developer may vote to waive or reduce the collection and maintenance of reserves for each of the first two (2)fiscal years of operation of the Condominium Association, beginning in the fiscal year in which the Declaration of Condominium is initially recorded, and similarly, may vote to waive any and all requirements that the books and records of the Condominium Association'be audited during any of these periods. As of the date of this Prospectus,the budget and the level of Assessments payable to the Condominium Association are not guaranteed. The Condominium Association may make changes in its budgets at any time, prior to or after the Closing, to cover increases or decreases in actual expenses or in estimates. The budget of, and Assessments payable to, the Association may increase (based upon actual operating expenses and projections thereof), both before and after the closing under the buyer's Agreement. Due to the location of the Condominium, and uncertainties resulting from the threat of tropical storms and hurricanes,the cost of insurance is subject to substantial fluctuation,which could greatly impact the budget Additional Expenses In addition to the balance of the purchase price, each buyer will have to pay the following charges at closing: A. Developer Fee in the amount of one and three quarters percent (1.75%) of the Purchase Price, including any charges for options or extras now or hereafter contracted for which are not included in the Purchase Price. The Developer Fee shall be retained by Seller as additional funds and to offset certain of its other acquisition and renovation expenses, including, without limitation, certain of Seller's administrative expenses and Seller's attorneys' fees in connection therewith, and as additional revenue to Seller. Accordingly, Buyer understands and agrees that the Developer Fee is not for payment of closing costs or settlement services (other than to the extent expressly provided above), but rather represents additional funds to Seller which are principally intended to cover various out-of- pocket and internal costs and expenses of Seller associated with conversion of the Building into the Condominium and as additional revenue to Seller. B. In addition to the Developer Fee, Buyer shall pay the charges for recording the deed, documentary stamp taxes on the deed and mortgage, if applicable, the premium on the owner's title insurance policy, and any other costs of Buyer's financing. Notwithstanding the foregoing, in the event that Buyer obtains financing through Homebanc Mortgage (in the PROSPECTUS -19- i event the buyer obtains financing) for the transaction (which it shall have no obligation to do), the charges for recording the deed, documentary stamp taxes on the deed and the premium on the owner's title insurance policy shall be paid by Seller at closing; provided, however, that in the event of increases in either the recording fees imposed by the County, the documentary stamp tax rates or the minimum risk title insurance premiums,subsequent to the date hereof, or in the event of the imposition of any surcharge or any new governmental tax or charge on deeds or conveyances, Buyer agrees to pay all such increases, surcharges or new taxes or charges, in addition to the Developer Fee. In no event shall Seller pay documentary stamp taxes on the mortgage or any other costs associated with Buyer's financing, including without limitation, additional title charges and/or premiums associated with any lender's policy. In the event Buyer is obtaining financing with the assistance of a Federally-related mortgage loan, Buyer may select its own title company, such selection to be made no later than thirty (30) days before Closing. If Buyer does not select a title company prior to such time, Seller shall select the title company. In any event, Seller shall not be required to deliver an abstract of title. C. Capital Contribution in an amount equal to twice the monthly maintenance charge for the Unit owed to the Condominium Association at the time of closing,which charges are payable directly to the Condominium Association to provide it with initial capital.This contribution will not be regarded as prepayments of such assessments/charges, or otherwise credited against regular assessments/charges, but shall be payable directly to the Condominium Association. These charges may be used to pay any deficits or other sums Seller or any of its affiliates may be required to pay to the Condominium Association.Assuming no change in the current regular monthly assessments for the Unit prior to Closing, these charges will be based on the estimated monthly assessments as of the date hereof. D. Surtax, if any, due in connection with the transfer of the Unit or any limited common elements appurtenant thereto. Presently,the Miami-Dade County surtax on transfers of non-. residential real property is at the rate of$0.45 for each $100.00 of consideration. E. Loan fees, closing costs,escrows, appraisal fees, credit report fees, lender's title insurance premiums, title-related charges and endorsement charges, prepayments and all other expenses charged by any lender giving Buyer a mortgage, if applicable. Additionally, if Buyer obtains a loan and elects to have Seller's closing agent act as"loan closing agent"as well, Buyer agrees to pay, in addition to any other sums described in this Agreement, such closing agent an aggregate sum equal to$700.00, plus reimbursement of applicable costs, for the agent's title examination, title searching and closing services related to acting as "loan closing agent," plus any sums necessary for reimbursement of actual costs incurred and any premiums required (at promulgated rate) for any title endorsements, and for the cost of couriers, overnight delivery services, photocopies, long distance telephone and facsimile charges and any other expenses incurred in connection therewith. The amount of all lender charges is now unknown. Notwithstanding the reference to loan costs or assistance or cooperation by Seller or Seller's closing agent, Buyer understands and agrees that the closing is NOT contingent upon Buyer obtaining a loan and Buyer is obligated to close whether or not Buyer can obtain financing. F. A reimbursement to Seller for any utility, cable, satellite or interactive communication deposits or hook-up fees which Seller may have advanced prior to closing for the Unit,other than any such charges which are the responsibility of the Condominium Association. The amount of this charge is now unknown. G. Any charge for any options or upgrading of standard items included, or to be included, in and/or with the Unit as agreed to in writing by both Buyer and Seller, if not previously paid. PROSPECTUS -20- H. A charge of $150.00 for a computer update and recertification of title to the Unit, if applicable. I. Reimbursement to Seller, and/or Seller's closing agents,for charges incurred in connection with coordinating closing with Buyer and/or Buyer's lender, including, without limitation, charges for messenger expenses, long distance telephone calls, photocopying expenses, telecopying charges and others. The amount of these charges is now unknown. J The late funding charges provided for in Sections 2, 3 and 12 of this Agreement. The amount of any such charges is now unknown. K. Reimbursement.to the Developer for Buyer's prorated portion of any interim services fee charged by the applicable state or county jurisdiction. L. Any and all sales tax due in connection with the acquisition of any furniture,finishes and/or equipment included with the Unit. Pro-ratable expenses relating to the Unit,such as real estate taxes and municipal and county assessments will be adjusted between the Developer and the Buyer at closing. The method by which real estate taxes and Assessments will be prorated is set forth in Section 13 of the form of the Agreement attached as Exhibit "C". The form of Agreement set forth in Exhibit "C" may be modified in any manner in any particular case or cases without the consent of any other buyer or Unit Owner.Any such modifications shall not vest any buyer or Unit Owner whose Agreement was not so modified with any rights of any sort. Upon or before closing of title to the first Unit, Developer shall assign to the Condominium Association all of Developer's right,.title and interest, if any, in and to any contracts relating to the provision of utilities, insurance and other services to the Condominium, and from and after such date, all benefits and burdens thereunder shall accrue and apply to the Condominium Association. The Developer shall be entitled to be reimbursed for any deposits, prepaid premiums, rentals and other consideration paid by the Developer to such insurers, contractors and utility companies, pro- rated as of the date of closing for each Unit, except that any utility deposits will be reimbursed to the Developer without proration. Deposits from buyers will be held and disbursed in accordance with the Escrow Agreement attached hereto as Exhibit"D". Title Insurance The Developer wilt furnish each Buyer with an owner's title insurance policy forthe amount of the purchase prices set forth in the Agreement (unless otherwise set forth in the Agreement). The premium for the policy will be paid by the Buyer except in the event Buyer obtains financing through Homebanc Mortgage for the transaction (which it shall have no obligation to do)then Seller shall pay such premium for the policy at Closing. Lender's title insurance policies will be available for an additional charge. No abstracts of title will be provided by the Developer. Sales Commissions The Developer will pay the sales commissions, if any, of the on-premises sales agents employed by the Developer in connection with the sale of the Units. Unless the Developer otherwise agrees in writing, the Buyer will be responsible for the commission of any other broker or salesman with whom the Buyer may have dealt. PROSPECTUS -21- The Developer The Developer,Valencia South Miami, LLC, is a Florida limited liability company organized for the development of this Condominium. The Developer was formed for the purpose of creating and developing this Condominium and, accordingly, has no prior experience with respect to the creation and development of condominiums. Peter Torres, a principal of the managing member of the Developer, has approximately three years of real estate development experience and has developed several residential projects in South Florida. Information regarding Valencia South Miami, LLC and Mr.Torres is given only for the purpose of satisfying the requirements of Section 718.504(22),Florida Statutes,and is not to be relied upon for the purpose of asserting any claim or liability against either of them, personally. Mold Mold naturally occurs in indoor environments and mold spores may enter your Unit and other portions of the Condominium through open doorways,windows,.HVAC (heating,ventilation and air conditioning)systems, and air infiltration, as well as by attachment to people, animals and clothing. Medical, health science and building science professionals have not yet formed a consensus on the adverse health effects of exposure to mold. Although there is no practical way to eliminate all molds, the way to control indoor mold growth is to control moisture. Unit Owners should regularly inspect their Units for plumbing leaks, water accumulation, and water intrusion through windows, doors and roofs and for any signs of molds. Regular cleaning and adequate air circulation and ventilation, as well as regular inspections of your Unit and its HVAC system, may help to prevent or reduce molds. No Unit Owner shall install within his or her Unit, or upon the Common Elements and/or any other portion of the Condominium, non-breathable wall-coverings or low-permeance paints. Additionally, any and all built-in casework, furniture and/or shelving within 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. Furthermore, all Unit Owners, whether or not occupying the Unit, shall continually run the air conditioning system to minimize humidity in the Unit. Unit Owners and occupants should immediately file a written report with the Condominium Association if any molds are found or if it appears that abnormal amounts of moisture have accumulated in their Unit or elsewhere within the Condominium. Noise and other Disturbances Sound transmission in a building such as the Condominium is very difficult to control, and noises from adjoining or nearby Units, stairwell, pipes,trash cutes and or mechanical equipment can often be heard in other Units. The Developer does not make any representation or warranty as to the level of sound transmission between and among Units and the other portions of the Condominium. Buyer may be disturbed by the noise, music, lighting,vibrations,odors,commotion and other activities and unpleasant effects emanating from the Commercial Units and the surrounding.areas as well as by nearby construction activity, and maybe impeded in using portions of the Condominium by any such activities. Except to the extent, if any,this Prospectus or the Agreement specifically and PROSPECTUS -22- explicitly provides otherwise, neither the Developer nor any successor or assign thereof will have any obligation (other than that imposed by governmental authorities)to modify(or to assure in any manner modification of)any particular buildings or facilities or to modify(or to assure in any manner modification of) what has been built in any particular way. Additional Matters Among other acts of God and uncontrollable events, hurricanes have occurred in Florida. Due to its location,the Condominium is exposed to the potential damages of hurricanes, including, but not limited to, damages from storm surges and wind driven rain. Water or other damages from this or other extraordinary causes shall not be the responsibility of the Developer. Windstorm deductibles in insurance obtained for the Condominium may be substantial and Unit Owners are encouraged to obtain loss assessment coverage in their individual homeowner's insurance policies to cover possible Special Assessments resulting from any such hazards. Each buyer understands and agrees that it is the intention of the Developer that the Parking Areas, stairwells and utility pipes serving the Condominium are intended solely for functional purposes, and as such will be left unfinished without regard to the aesthetic appearance of same. The foregoing is not intended to prohibit the use of the Parking Areas, stairwells, garage, and utility pipes for any other proper purpose. BUYERS SHOULD NOT RELY ON THE DEVELOPER'S CURRENT PROPERTY TAXES AS THE AMOUNT OF PROPERTY TAXES THAT THE BUYER MAY BE OBLIGATED TO PAY IN THE YEAR SUBSEQUENT TO PURCHASE. A CHANGE OF OWNERSHIP OR PROPERTY IMPROVEMENTS TRIGGERS REASSESSMENTS OF THE PROPERTY THAT COULD RESULT IN HIGHER PROPERTY TAXES. IF YOU HAVE ANY QUESTIONS CONCERNING VALUATION, CONTACT THE COUNTY PROPERTY APPRAISER'S OFFICE FOR INFORMATION. CHAPTER 558, FLORIDA STATUTES CONTAINS IMPORTANT REQUIREMENTS YOU MUST FOLLOW BEFORE YOU MAY BRING ANY LEGAL ACTION FOR AN ALLEGED CONSTRUCTION DEFECT IN YOUR UNIT OR CONDOMINIUM. SIXTY DAYS BEFORE YOU BRING ANY LEGAL ACTION, YOU MUST DELIVER TO THE OTHER PARTY TO THE PURCHASE AGREEMENT, A WRITTEN NOTICE REFERRING TO CHAPTER 558 OF ANY CONSTRUCTION CONDITIONS YOU ALLEGE ARE DEFECTIVE AND PROVIDE SUCH PERSON THE OPPORTUNITY TO INSPECT THE ALLEGED CONSTRUCTION DEFECTS AND TO CONSIDER MAKING AN OFFER TO REPAIR OR PAY FOR THE ALLEGED CONSTRUCTION DEFECTS. YOU ARE NOT OBLIGATED TO ACCEPT ANY OFFER WHICH MAY BE MADE. THERE ARE STRICT DEADLINES AND PROCEDURES UNDER FLORIDA LAW WHICH MUST BE MET AND FOLLOWED TO PROTECT YOUR INTERESTS. Disclaimer of Oblinations Except to the extent this Prospectus or the Agreement specifically provide otherwise, the Developer will have no obligation (except as may be imposed by governmental authorities) to renovated the Building or facilities or to build what it does build in any particular way. Any current or prior agreements,representations,understandings or oral statements (including,but not limited to, renderings or representations contained in advertising or sales materials and oral statements of sales representatives), if not expressed in the Agreement or in this Prospectus, are void and of no effect. Buyers should not rely on any of them. As a PROSPECTUS -23- result,there is no guarantee of any(a)potential appreciation in or resale value of the Unit,(b) the existence of any"view"from the Unit or that any existing"view"will not be obstructed in the future,(c)any future use or density of any adjacent properties,(d)disturbances from the Commercial Units and the surrounding properties, including without limitation, from the nearby Metrorail station,(e)security and privacy,(f)disturbance from air or vehicular traffic, (g)on-going renovations to the Building and the Condominium Property,or(h)disturbances from other Residential Units and Commercial Units, trash chutes, pipes or mechanical equipment. Additional Disclaimers No representations or warranties of any kind,express or implied, have been given or made by the Developer or its agents or employees, unless expressly set forth in this Prospectus or the Agreement delivered by the Developer prior to the execution of the Agreement by Buyer and the Developer hereby specifically disclaims any liability or responsibility for the following: (a)any matters relating to the views, designs,security and privacy of the Units and other portions of the Condominium and the design, height and density of the surrounding properties; (b) the compliance with Applicable Law, including without limitation, applicable zoning codes, and the prevention of tortuous activities, the security, health, safety or welfare of any owner, occupant or user of any portion of the Condominium including,without limitation,Unit Owners and their families,guests,invitees, agents, servants, contractors or subcontractors; (c) the physical condition, zoning, compliance with Applicable Law,merchantability,habitability,fitness for a particular purpose of any portion of the Common Elements or other portions of the Condominium, including (without limitation) the sale, operation, level or cost of maintenance, taxes or regulation thereof; (d) bowing and/or deflection of materials, and cracking and settlement of improvements, which each buyer recognizes and agrees is typical in the type of improvements in the Condominium; (e) molds, mildew, toxins and fungi which, given the climate and humid conditions in South Florida, may exist and/or develop within the Units, and/or other portions of the Condominium; (f) noise, music, lighting, vibrations, odors, commotion and other activities and unpleasant effects of nearby construction activity,and emanating from the Residential Units or Commercial Units or the surrounding properties including the nearby Metrorail station,which because of its proximity to the Condominium, may create disturbances and impede the use of portions of the Condominium; (g) the exterior lighting scheme for the improvements within the Condominium, including,without limitation, the Commercial Units, and surrounding properties, which may cause excessive illumination and may require installation of window treatments; (h) acts of God and uncontrollable events and, given the location of the Condominium, the exposure to the potential damages from flooding and from hurricanes,including,without limitation,damages from storm surges and wind-driven rain; and (i) any portions of the Condominium that are located are below the federal flood plain, and, accordingly, in the event of flooding, are susceptible to water damage. Each buyer, by accepting and acquiring title to its Unit,and each other person having an interest in or lien upon,or making any use of,any portion of the Condominium(by virtue of accepting such interest or lien or making such uses), shall be deemed to have assumed the risks associated with each of the above matters and occurrences and shall be deemed to have automatically waived any and all rights,claims,demands and causes of action against the Developer and the Condominium Association arising from or connected with any matter for which the liability of the aforementioned parties has been disclaimed in this section. As PROSPECTUS -24- to such warranties which cannot be disclaimed, and to other claims, if any, which can be made as to the aforesaid matters,all incidental,special,punitive and consequential damages arising therefrom are hereby disclaimed. Each buyer, by virtue of acceptance of title to its Unit,shall be deemed to have automatically waived all of the aforesaid disclaimed warranties and incidental and consequential damages. As used in this section, references to the Developer shall include within their meaning its members, partners,and its shareholders,directors,officers,board members,employees, agents, contractors, subcontractors, and its successors and assigns and references to the "Association" or the "Condominium! Association" shall all of its directors, officers, committee and board members, employees, agents, contractors (including management companies), subcontractors, successors and assigns. Evidence of Ownership The Developer owns fee simple title to the property which is intended to be developed as the Condominium.Attached as Exhibit"G" is a copy of the Deed reflecting the Developer's ownership interest in the Condominium. General The foregoing is not intended to present a complete summary of all of the provisions of the various documents referred to herein, but does contain a fair summary of certain provisions of said documents. Statements made as to the provisions of such documents are qualified in all respects by the content of such documents. Definitions The definitions set forth in the Declaration of Condominium(and the exhibits thereto)shall be applicable to this Prospectus, unless otherwise specifically stated or unless the context would prohibit. Effective Date This Prospectus is effective as of March 22, 2005. PROSPECTUS -25- Exhibit"A" DECLARATION OF CONDOMINIUM Table of Contents 1. Introduction and Submission. .•.••.•• .......••••••1 2. Definitions. ..............................................::..........................................................................2 3. Description of Condominium ...........:...................................................................................7 4. Restraint Upon Separation and Partition of Common Elements. .......................................16 5. Ownership of Common Elements and Common Surplus and Share of Common Expenses; VotingRights.....................................................................................................................17 6. Amendments...................................:.................................................................................17 7. Maintenance and Repairs. ................................................................................................19 8. Additions, Alterations or Improvements by the Association ...............................................22 , 9. Additions, Alterations or Improvements. ............................................................................22 10. Changes in Developer-Owned Units .................................................................................25 11. Operation of the Condominium by the Association............................................................25 12. Determination of Common Expenses and Fixing of Assessments Therefor.......................29 13. Collection of Assessments. ...............................................................................................29 14. Insurance..........................................................................................................................32 15. Reconstruction or Repair After Fire or Other Casualty'.......................................................37 16. Condemnation...................................................................................................................41 17. Occupancy and Use Restrictions ......................................................................................44 18. Selling and Mortgaging of Units.........................................................................................54 19. Compliance and Default....................................................................................................57 20. Termination of Condominium ............................................................................................60 21. Additional Rights of Mortgagees and Others.....................................................................61 22. The Condominium Association..........................................................................................62 23. Covenant Running With the Land......................................................................................62 24. Access of Developer to Building and Units and to Reports................................................62 25. Notices..............................................................................................................................63 26. Reservation of Roof, Air and Development Rights.......................................:.....................63 27. Additional Provisions.........................................................................................................64 28. Disclaimer Of Warranties. .................................................................................................67 Joinder .........................................................................................72 ConsentOf Mortgagee......................................................................................................73 Condo Dec v05 redline 05.doc DECLARATION OF CONDOMINIUM -i- EXHIBIT "A" This instrument prepared by, . and after recording return to: Howard J.Vogel, Esq. BERMAN RENNERT VOGEL&MANDLER, P.A. 100 S.E.Second Street,Suite 2900 Miami, Florida 33131-2130 DECLARATION OF CONDOMINIUM OF VALENCIA, A CONDOMINIUM Valencia South Miami, LLC, a Florida limited liability company, hereby declares: 1. Introduction and Submission. 1.1 The Land. The Developer owns the fee simple title to certain land located in Miami-Dade County, Florida, as more particularly described in Exhibit "1" annexed hereto (the "Land"). 1.2 Submission Statement. The Developer hereby submits the property described in Exhibit "1" annexed hereto, including all improvements erected or to be erected thereon and therein (but excluding all public or private utility installations, e.g., cable television and/or other receiving or transmitting lines, antennae or equipment therein or thereon) to the condominium form of ownership and use in the manner provided for in the Act, as hereafter defined. Without limiting any of the foregoing, no property located outside of the boundaries of the Condominium as described in Exhibit "1" annexed hereto, shall for any purposes be deemed part of the Condominium or shall be subject to the jurisdiction of the Association, the operation and effect of the Act or any rules or regulations promulgated pursuant thereto. Notwithstanding anything to the contrary in this Declaration,the Developer hereby reserves and retains unto itself, and its successors and assigns, all right, title and ownership of and over the air space above and around the buildings now or hereafter constructed within the Condominium, extending vertically into infinity, any and all unused development rights and interests relating to the Land, whether now existing or hereafter created, including (without limitation) any and all severable or transferable density allocations and use rights, and the unconditional right to transfer such rights to other properties, without the consent or joinder of any other party, provided however, that the Association and each Unit Owner shall execute and deliver and documents necessary or desirable to effectuate the purpose and intent of the foregoing provision. The foregoing reserved rights and interests shall not for any purposes be deemed part of the Condominium and shall not be subject to the ownership or jurisdiction of the Association. Neither the Land nor any of the Units shall be within a Multi-condominium. DECLARATION OF CONDOMINIUM 1.3 Name. The name by which this condominium is to be identified is Valencia, a .Condominium (hereinafter called the "Condominium"). 2. Definitions. The following terms when used in this Declaration and in its exhibits, and as it and they may hereafter be amended, shall have the respective meanings ascribed to them in this section, except where the context clearly indicates a different meaning: 2.1 "Act" means the Florida Condominium Act (Chapter 718 of the Florida Statutes) as it exists on the date hereof and as it may be hereafter renumbered. 2.2 "Applicable Law" means all laws, rules, regulations, codes and ordinances of the United States, the State of Florida, the County of Miami-Dade and the City of South Miami, Florida, applicable to the ownership, operation and use of the Condominium Property, as renumbered from time to time. 2.3 "Articles" or "Articles of Incorporation" mean the Articles of Incorporation of the Association, as amended from time to time. 2.4 "Assessment" means a share of the funds required for the payment of Common Expenses which from time to time are assessed against a Unit Owner. 2.5 "Association" or "Condominium Association" means Valencia South Miami Condominium Association, Inc., a Florida corporation not for profit, the entity responsible for the operation of the Condominium. 2.6 "Association Property" means that property, real and personal, which is owned or leased by, or is dedicated by a recorded plat to, the Association for the use and benefit of its members. 2.7 "Board" or "Board of Directors" means the board of directors and the members of the board of directors, from time to time, of the Association. 2.8 "Building" means the structure(s) in which the Units and the Common Elements are located. 2.9 "Bureau" means the Bureau of Standards and Registration of the Division of Florida Land Sales, Condominiums and Mobile Homes, or its successor. 2.10 "By-Laws" mean the By-Laws of the Association, as amended from time to time. 2.11 "Charges" mean the funds required for the payment of expenses, interest, costs, and/or attorney's fees, other than Common Expenses, which from time to time are charged to a Unit Owner (but not necessarily against all Unit Owners). 2.12 "Commercial Limited Common Elements" means those Common Elements, the exclusive use and enjoyment of which is reserved to the Owners and occupants of each and every Commercial Unit to the exclusion of the Owners and occupants of the Residential Units, as specified in this Declaration, which may DECLARATION OF CONDOMINIUM —2- I exist from time to time, including, without limitation, any patios, terraces, lanais, corridors, meter rooms, vault rooms, sidewalks (to the extent permitted under Applicable Law) and/or portions of the surface of the exterior walls of the Building adjacent to a Commercial Unit as identified in Exhibit 1" attached hereto. 2.13 "Commercial Unit(s)" means and refers to any Unit or Units identified with the prefix "CU-" as identified'on Exhibit "1" attached hereto, which is designed and intended to be used for any purpose permitted by applicable zoning ordinances, including, residential and/or non-residential purposes. References herein to "Units" shall include the Commercial Unit unless the context would prohibit or it is otherwise expressly provided. 2.14 "Commercial Unit Owner(s)" means and refers to the Owner(s) of a Commercial Unit(s). 2.15 "Committee" means a group of members of the Board or Unit Owners, or members of the Board and Unit Owners, appointed by the Board, or by a member of the Board, to make recommendations to the Board or to take action on behalf of the Board. 2.16 "Common Elements" mean and include: (a) The portions of the Condominium Property which are not a part of or included within the Units; (b) Non-exclusive easements through the Units for conduits, ducts, plumbing, wiring and other facilities for the furnishing of utility and other services to the Units and to the Common Elements; (c) An easement of support in every portion of a Unit which contributes to the support of the Building; (d) The property and installations, including without limitation, the conduits, ducts, plumbing, wiring and other facilities located within the Units, required for the furnishing of utilities and other services to more than one Unit or to the Common Elements; and (e) Any .other parts of the Condominium Property designated as Common Elements in this Declaration. 2.17 "Common Expenses" mean all expenses incurred by the Association for the operation, maintenance, repair, replacement or protection of the Condominium Property, the costs of carrying out the powers and duties of the Association, and any other expense, whether or not included in the foregoing, designated as a Common Expense by the Act, the Declaration, the Articles or the Bylaws. For all purposes of this Declaration, "Common Expenses" shall also include: (i) all expenses incurred by the Association for the maintenance, repair or replacement of those portions of the Units and any Limited Common Elements appurtenant thereto, for which it is responsible pursuant to Section 7.1 of this Declaration; (ii) all reserves required by the Act or otherwise established by the Association, DECLARATION OF CONDOMINIUM -_3- regardless of when reserve funds are expended; (iii) if applicable, the cost of a master antenna television system or duly franchised cable television service obtained pursuant to a bulk contract; (iv) if applicable, costs relating to reasonable transportation services, insurance for directors and officers, road maintenance and operation expenses, in-house communications and surveillance and restricted access systems which are reasonably related to the general benefit of the Unit Owners; (v) Limited Common Expenses; (vi) Residential Limited Common Expenses; and (vii) any unpaid Assessments extinguished by foreclosure of a superior lien or by a deed in lieu of foreclosure thereof. 2.18 "Common Surplus" mean's the excess of all receipts of the Association collected on behalf of the Association, including, but not limited to, Assessments, rents, profits and revenues on account of the Common Elements, but excluding funds collected for reserves, over the amount of Common Expenses. 2.19 "Condominium Parcel" means a Unit together with the Limited Common Elements appurtenant to said Unit and the undivided share in the Common Elements which is appurtenant to said Unit; and when the context permits, the term includes all other appurtenances to the Unit. 2.20 "Condominium Property" means the Land, Improvements and other property described in Section 1.2. hereof, subject to the limitations thereof and exclusions therefrom. 2.21 "County" means the County of Miami-Dade, State of Florida. 2.22 "Declaration" or "Declaration of Condominium" means this instrument and all exhibits attached hereto, as the same may be amended from time to time. 2.23 "Developer' means Valencia South Miami, LLC, a Florida limited liability company its successors and such of its assigns as to which the rights of Developer hereunder may be specifically assigned. Developer may assign all or any portion of its rights hereunder, or all or any portion of such rights in connection with specific portions of the Condominium. In the event of any partial assignment, the assignee shall not be deemed the Developer, but may exercise such rights of the Developer as are specifically assigned to it. Any such assignment may be made on a nonexclusive basis. In the event the holder of any mortgage executed by the Developer, or any subsidiary or affiliate of the holder, obtains title to all or any portion.of the Condominium Property by foreclosure, or deed in lieu thereof, or other conveyance, such holder, or subsidiary or affiliate of the holder, shall become the Developer only if it so elects by written notice to the Board, except as otherwise provided by the Act or the rules promulgated thereunder, but regardless of such election the holder, or subsidiary or affiliate of the holder, shall have the right to assign any of the rights of the Developer as provided herein to any third party who acquires title to all or a portion of the Condominium Property from the holder, or subsidiary or affiliate of the holder. In any event, any subsequent Developer shall not be liable for any defaults or obligations incurred by any prior Developer, except as same are expressly assumed by the subsequent Developer. The rights of Developer under this DECLARATION OF CONDOMINIUM -4- I Declaration are independent of the Developer's rights to control the Board of Directors of the Association, and, accordingly, shall not be deemed waived, transferred or assigned to the Unit Owners, the Board or the Association upon turnover of control of the Association. 2.24 "Dispute", for purposes of Section 19.1, means any disagreement between two or more parties that involves: (a) the authority of the Board under any law, rule or regulation or under this Declaration, the Articles or the By-Laws to: (i) require any Owner to take any action, or not to take any action, involving that Owner's Unit; or (ii) alter or add to a common area or Common Element; or (b) the failure of the Association, when required by law, rule or regulation or this Declaration, the Articles or By-Laws to: (i)j properly conduct elections; (ii) give adequate notice of meetings or other actions; (iii) properly conduct meetings; or (iv) allow inspection of books and records. "Dispute" shall not include any disagreement that primarily involves: title to any Unit, Limited Common Elements or Common Elements; the interpretation or enforcement of any warranty; the levy of a fee or Assessment, or the collection of an Assessment levied against a party; the eviction or other removal of a tenant from, a Unit; alleged breaches of fiduciary duty by one or more directors of the Association; or claims for damages to a Unit based upon an alleged failure of the Association to maintain the Common Elements or Condominium Property. 2.25 "Electronic Transmission". means any form of communication, not directly involving the physical transmission or transfer of paper, which creates a record that may be retained, retrieved, and reviewed by a recipient thereof and which may be directly reproduced in a comprehensible and legible paper form by such recipient through an automated process. Examples of electronic transmission include, but are not limited to, telegrams, facsimile transmissions of images, and text that is sent via electronic mail between computers. 2.26 "Improvements" shall mean all structures and artificial changes to the natural environment (exclusive of landscaping) located on and in the Condominium Property, including, but not limited to, the Building. 2.27 "Institutional First Mortgagee" means a bank, savings and loan association, insurance company, real estate or mortgage investment trust, pension fund, an agency of the United States Government, mortgage banker, the Federal National Mortgage Association ("FNMA"), the Federal Home Loan Mortgage Corporation ("FHLMC") or any other lender generally recognized as an institutional lender, or the Developer, holding a first mortgage on a Unit or Units. A "Majority of Institutional First Mortgagees" shall mean and refer to Institutional First Mortgagees of Units to which at least fifty-one percent (51%) of the voting interests of Units subject to mortgages held by Institutional First Mortgagees are appurtenant. 2.28 "Life Safety Systems" mean those emergency lighting, audio and visual signals, security systems and sprinkler and smoke detection systems which have been installed in the Building, both within and without the Units, pursuant to the requirements of the applicable governmental authority having jurisdiction over DECLARATION OF CONDOMINIUM —5 I same. All such Life Safety Systems, together with all conduits, wiring, electrical connections and systems related thereto, shall be Common Elements. 2.29 "Limited Common Elements" mean those Common Elements, the exclusive use and enjoyment of which is reserved to the Owners and occupants of a certain Unit or Units to the exclusion of the Owners and occupants of other Units, as specified in this Declaration. References herein to Common Elements also shall include all Limited Common Elements unless the context would prohibit or unless otherwise expressly provided. 2.30 "Multi-condominium" means a real estate development containing two or more condominiums, all of which are operated by the same association. 2.31 "Primary Institutional First Mortgagee" means the Institutional First Mortgagee which owns, at the relevant time, first mortgages on Units securing a greater aggregate indebtedness than is owed to any other Institutional First Mortgagee. 2.32 "Residential Limited Common Elements" means those Common Elements the exclusive use and enjoyment of which is reserved to the Owners and occupants of each and every Residential Unit to the exclusion of the Owners and occupants of the Commercial Units, as specified in this Declaration, which may exist from time to time, including, without limitation, the swimming pool, the surrounding pool deck, jacuzzi and fitness center as identified in Exhibit "1" attached hereto. Notwithstanding the foregoing, pursuant to Section 3.3(b) the exclusive use and enjoyment of certain.types of Residential Limited Common Elements is reserved solely for use and enjoyment of the adjacent Residential Unit as specified in this Declaration. 2.33 "Residential Limited Common Expenses" mean all expenses incurred by the Association for the operation, maintenance, insurance, repair, replacement, alteration or protection of the Residential Limited Common Elements and any other expense, whether or not included in the foregoing, designated as a Residential Limited Common Expense by this Declaration, the Articles or the Bylaws. For all purposes of this Declaration, "Residential Limited Common Expenses" shall also include: (i) any and all utility charges separately metered and associated with the Residential Limited Common Elements (and for such utility charges that are not separately metered, the Association shall make a reasonable allocation); (ii) all reserves required by the Act (unless properly waived), or otherwise established by the Association, with respect to any Residential Limited Common Elements, (iii) all costs associated with the exterior maintenance including, without limitation, costs for landscaping maintenance, window cleaning, replacements in, on and around the Residential Limited Common Elements, costs for repairs to pavers or other floor coverings, any and all pool and jacuzzi related expenses (including without limitation, pool deck resurfacing, chemical treatments and monitoring, etc), any and all fitness center related expenses as well as the costs of all personnel assisting in the operation and/or maintenance of the Residential Limited Common Elements; and (iv) if applicable, the cost of a master antenna television system, duly franchised cable television service, or for broadband, telecommunications, satellite and/or internet DECLARATION OF CONDOMINIUM —6- service obtained pursuant to a bulk contract to the extent that same serves the Residential Units only. 2.34 "Residential Unit" means each of the Units, other than the Commercial Units. References herein to "Units" shall include the Residential Units unless the context prohibits or it is otherwise expressly provided. 2.35 "Residential Unit Owner(s)" means and refers to the Owner(s) of the Residential Units. 2.36 "Turnover" means the date the Developer no longer has the right to elect or appoint a majority of thel Board of Directors at which time the Unit Owners shall assume control of the Association. 2.37 "Unit" or "Units" mean those portions of the Condominium Property which are subject to exclusive ownership, including the Commercial Units. 2.38 "Unit Owner" or "Owner of a Unit" or "Owner" means a record owner of legal title to a Condominium Parcel. Unless the context otherwise requires, any capitalized term not defined but used herein which is defined in the Articles and By-Laws shall have the meaning given to such word or words therein. 3. Description of Condominium 3.1 Identification of Units. Each Unit is identified by a separate numerical or alpha- numerical designation. The designation of each of such Units is set forth on Exhibit "I" attached hereto. Exhibit "1" consists of a survey of the Land, a graphic description of the Improvements located thereon, including, but not limited to, the Building, and a plot plan thereof. Said Exhibit "'I", together with this Declaration, is sufficient in detail to identify the Common Elements, Limited Common Elements and each of the Units and their relative locations and dimensions. There.shall pass with the Units as appurtenances thereto (a) an undivided share in the Common Elements and Common Surplus as set forth herein; (b) the exclusive right to use such portion of the Common Elements and Limited Common Elements as may be provided in this Declaration; (c) an exclusive easement for the use of ithe airspace occupied by the Unit as it exists at any particular time and as the Unit may lawfully be altered or reconstructed from time to time, provided that an easement in airspace which is vacated shall be terminated automatically; (d) membership in the Association with the full voting rights appurtenant thereto; and (e) any other appurtenances as may be provided by this Declaration. 3.2 Unit Boundaries. Each Unit shall include that part of the Building that lies within the following boundaries: (a) Upper and Lower.Boundaries. The upper and lower boundaries of the Unit shall be the following boundaries extended to their planar intersections with the perimetrical boundaries: DECLARATION OF CONDOMINIUM -7 (i) Upper Boundaries. The horizontal plane of the unfinished lower surface of the ceiling (which will be deemed to be the ceiling of the top story of the Unit if the Unit contains more than one story). (ii) Lower Boundaries. The horizontal plane of the unfinished upper surface of the floor of the Unit (which will be deemed to be the floor of the first story of the Unit if the Unit is a multi-story Unit). (iii) Interior Divisions. Except as provided in subsections (i) and (ii) above, no part of the floor of the top floor, ceiling of the bottom floor, stairwell adjoining the floors of a multi- floor Unit, or nonstructural interior walls shall be considered a boundary of the Unit. (iv) Boundaries Further Defined. The boundaries of the Unit shall not include all of those spaces and improvements lying beneath the undecorated and/or unfinished inner 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/or unfinished inner surfaces of all interior bearing walls and/or bearing partitions and, further, shall exclude 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. No part of the interior non-boundary walls within a Unit shall be considered a boundary of the Unit. (b) Perimetrical Boundaries. The perimetrical boundaries of the Units shall be the vertical planes of the unfinished exterior surfaces of the exterior walls bounding the Unit and the centerline of the partitioning walls between Units extended to their planar intersections with each other and with the upper and lower boundaries. (c) Apertures. Where there are apertures in any boundary, including, but not limited to, windows, doors, bay windows and skylights, such boundaries shall be extended to include the windows, doors and other fixtures located in such apertures, including all frameworks, window casings and weather stripping thereof, together with exterior surfaces made of glass or other transparent materials; provided however that the exteriors of doors facing interior Common Element hallways shall not be included in the boundaries of the Unit and shall be Common Elements. (d) 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 "1," the above provisions describing the boundary of a Unit shall control, it being the intention of this Declaration that the actual DECLARATION OF CONDOMINIUM r8 as-built boundaries of the Unit as above described shall control over any erroneous dimensions contained in Exhibit "1" attached hereto, and in the event it shall appear that any dimension shown on Exhibit 1" attached hereto is erroneous the Developer (so long as it owns any Units) or the President of the 'Association (after the Developer no longer owns any Units) shall have the right to unilaterally amend the Declaration to correct such survey, and any such amendment shall not require the joinder of any Unit Owner or mortgagee so long 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 "1" 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 "1" describing the boundaries of a Unit, the language of this Declaration shall control. 3.3 Limited Common Elements. Each Unit may have, to the extent applicable and subject to the provisions of this Declaration, as Limited Common Elements appurtenant thereto: (a) Residential Limited Common . Elements. The Residential Limited Common Elements shall be deemed Limited Common Elements appurtenant to each and every Residential Unit (to the exclusion of the Commercial Units) and shall be maintained solely by the Association. Except as provided below all of the costs of operating, maintaining, insuring, repairing, replacing, and altering the Residential Limited Common Elements (the "Residential Limited Common Expenses") shall be borne solely by the Residential Unit Owners. Without limiting the generality of Section 2.32 herein, the Residential Limited Common Elements shall !not include any necessary repairs, maintenance, replacements or alterations to the structural components of the Building or any roofing of the Building. The Residential Limited Common Expenses shall be assessed against each of the Residential Units, with each bearing a fractional portion thereof, with the numerator thereof being the percentage allocable to the applicable Residential Unit on Exhibit "2- A" to this Declaration and the denominator being the aggregate of all percentages allocated to the Residential Units on said Exhibit "2-A" all as set forth on Exhibit"2-B" attached hereto. (b) Patios Balconies Terraces and Lanais to Residential Units. Any patio, balcony, terrace and/or lanai (and all improvements thereto) as to which direct and exclusive access shall be afforded to any particular Residential Unit or Units to the exclusion of others shall be a Residential Limited Common Element of such Residential Unit(s). Except as set forth below, the Association shall be responsible for the maintenance of the structural and mechanical 'elements of all such Residential Limited Common Elements, with the costs thereof being part of the Residential Limited Common Expenses. The Owner of the Residential Unit(s) to which such Residential Limited Common Elements are appurtenant shall be responsible for the general maintenance and appearance of such areas, DECLARATION OF CONDOMINIUM _g_ I the repair, replacement and insurance of any floor coverings placed or installed on any patio, balcony, terrace and/or lanai, as well as all contents located thereon. Each Residential Owner, and its successors and assigns, that makes or causes to be made any additions, alterations or improvements to a patio, balcony, terrace and/or lanai, or uses or allows the use thereof, shall indemnify, defend and hold harmless the Developer, the Association and the other Unit Owners from any claims, liability, damages or expenses arising therefrom. The approval requirements set forth in Section 9.1 of this Declaration shall be applicable to any proposed improvements to such Residential Limited Common Elements. (c) Patios Terraces, Lanais and/or Sidewalks appurtenant to Commercial Units. Any patios, terraces, lanais, corridors, meter rooms, vault rooms, sidewalks (to the extent permitted under Applicable Law) and/or portions of the surface of the exterior walls of the Building adjacent to a Commercial. Unit shall, subject to the provisions hereof, be a Limited Common Element of such Commercial Unit(s) (the "Commercial Limited Common Elements"), so that the Commercial Unit Owner may, from time to time, to the extent permitted by Applicable Law,. incorporate and use such areas in connection with, or relating to, the operations from the Commercial Unit. Notwithstanding the foregoing, the designation of such areas as Commercial Limited Common Elements shall not entitle the Owner(s) of the Commercial Unit(s) to which they are appurtenant to preclude passage over such areas as may be required by Applicable Law (and an easement for such passage is hereby reserved). It is further understood and agreed that, subject to any approvals required from the applicable governmental authorities, the Commercial Unit Owners may place on the Commercial Limited Common Elements such signage, mechanical equipment and/or other items thereon, and may make any alterations or improvements, as they may desire, without requiring approval from the Association, the Board or any Unit Owner. The approval requirements set forth in Section 9.1 of this Declaration shall not be applicable to any proposed improvements to such Limited Common Elements. Notwithstanding the foregoing, any such installations, and any additions, alterations and improvements thereto shall be made in compliance with all applicable governmental laws, rules, ordinances and regulations. Except as provided below, the Association shall be responsible for the maintenance, repair and replacement of any such Commercial Limited Common Elements, with the costs of same being a part of the Common Expenses. Each Commercial Unit Owner shall, however, be responsible for the general and maintenance and appearance of such areas, and the repair, replacement and insurance of any furniture, furnishings, floor coverings and other additions, improvements and alterations placed thereon. A Commercial Unit Owner, and its successors and assigns, that makes or causes to be made any additions, alterations or improvements to a patio, terrace, lanai, corridors, meter rooms and/or sidewalks (to the DECLARATION OF CONDOMINIUM __10_ 1 extent permitted under Applicable Law) or uses or allows the use thereof, shall indemnify, defend and hold harmless the Developer, the Association and the other Unit Owners from any claims, liability, damages or expenses arising therefrom. (d) Parking Areas. The Common Elements include parking areas for vehicles. The Developer, for as long as it is offering Units for sale in the ordinary course of business, and thereafter the Association may assign any parking space for the exclusive use of a Unit, which assignment shall be part of the official records of the Association but shall not be recorded. Far so Inn as the Dev n {{ nn Units {ar sale in the nry-0inafy rvr-�v�vT�'��-.,�c-o��e�OpeF-{•S-9rreFl,-rg-v rrtrs- GG �(rs�,e fO business, it shall eR}�led {��cnQ ye n^�m{,nensµati�nnL�_i�n eXGhange {T..—fOF aSS'IgRmeYYts of rear Inn�•,n�.�n^s aRFi—'there'afteF the AssOSiet;GA shall be ea#+tied—to reGelve—soFfp"Y`"""e sation t,heref F Any parking spaces so assigned will be a Limited Common Element of the Unit it is assigned4e. No Unit Owner or resident of any Unit, and none of their guests and invitees, shall park in a parking space assigned to another Unit without the permission of the applicable Unit Owner. A Unit may be assigned one or more Limited Common Element parking spaces appurtenant to the Unit,however, each Unit shall at all times have at least one Limited Common Element parking space. A Unit Owner may assign the Limited Common Element parking space appurtenant to his Unit to another Unit by written instrument delivered to (and held by) the Association, provided however, that no Unit may be left without at least one Limited Common Element parking space. While the maintenance of each parking space so assigned shall be the responsibility of the Association, the insurance of all contents therein shall be the sole responsibility of the Owner of the Unit to which it is assigned.-of granting assignments of parking spaces, the Developer may elect, in its sole--disc�io^,±�-�;:,;;, —licenses--�P-arking Lice-to-Units-ta-use- ny -h-shalf-be-gevemed and sub'ect to the same terms and o et4ef-its-tb+s-0ec4aration POF SO long as the DevelopeF for a��aents-of-sleh-pa `s ces le in the n any n e by ysines i1 shall he 6f�erinnrr�-cmcs�$r-S arc-rrrZr'tc-vcrr�o9ar�7�f8C�ff�c-�$�7r�rrun�c entitled to -e ypl6atien in a nne {nr gFantinn PaFkinn EACH UNIT OWNER ACKNOWLEDGES AND AGREES THAT A PORTION OF THE PARKING AREAS IS LOCATED BELOW THE FEDERAL FLOOD PLAIN, AND, ACCORDINGLY, IN THE EVENT OF FLOODING, ANY AUTOMOBILES AND/OR PERSONAL PROPERTY STORED THEREIN IS SUSCEPTIBLE TO WATER DAMAGE. ADDITIONALLY, INSURANCE RATES, BOTH FOR THE ASSOCIATION IN INSURING THE PARKING AREAS, AND FOR OWNERS, MAY BE HIGHER THAN IF THE PAKRING AREAS WERE ABOVE THE FEDERAL FLOOD PLAIN. BY ACCEPTING THE ASSIGNMENT OF A PARKING SPACE, EACH OWNER, FOR HIMSELF AND HIS TENANTS, GUESTS AND INVITEES, HEREBY DECLARATION OF CONDOMINIUM -11- EXPRESSLY ASSUMES ANY RESPONSIBILITY FOR LOSS, DAMAGE OR LIABILITY RESULTING THEREFROM. (e) Storage Spaces. The Common Elements include storage spaces for personal property. The Developer, for as long as it is offering Units for sale in the ordinary course of business, and thereafter the Association may assign any storage space(s) for the exclusive use of a Unit, which assignment shall be part of the official records of the Association but shall not be recorded. For so long as the Developer is offering Units for sale in the ordinary course of business, it shall be entitled to receive compensation in exchange for assignments of storage spaces and thereafter the Association shall be entitled to receive compensation therefor. Any storage area(s) so assigned will be a Limited Common Element of the Unit it is assigned-4e. No Unit Owner or resident of any Unit, and none of their guests and invitees, shall use a storage area assigned to another Unit without the permission of the applicable Unit Owner. A Unit may be assigned one or more Limited Common Element storage space(s) appurtenant to the Unit. A Unit Owner may assign the Limited Common Element storage area appurtenant to his Unit to another Unit by written instrument delivered to (and held by) the Association. While the maintenance of each storage area so assigned shall be the responsibility of the Association, the insurance of all contents therein shall be the sole responsibility of the Owner of the Unit to which it is assigned. EACH UNIT OWNER ACKNOWLEDGES AND AGREES THAT PORTIONS OF THE STORAGE SPACES MAY BE LOCATED BELOW THE FEDERAL FLOOD PLAIN, AND, ACCORDINGLY, IN THE EVENT OF FLOODING, ANY PERSONAL PROPERTY STORED THEREIN IS SUSCEPTIBLE TO WATER DAMAGE. ADDITIONALLY, INSURANCE RATES, BOTH FOR THE ASSOCIATION IN INSURING THE STORAGE SPACES, AND FOR OWNERS, MAY BE HIGHER THAN IF THE STORAGE SPACES WERE ABOVE THE FEDERAL FLOOD PLAIN. BY ACCEPTING THE ASSIGNMENT OF A STORAGE AREA, EACH OWNER, FOR HIMSELF AND HIS TENANTS, GUESTS AND INVITEES, HEREBY EXPRESSLY ASSUMES ANY RESPONSIBILITY FOR LOSS, DAMAGE OR LIABILITY RESULTING THEREFROM. (f) Miscellaneous Areas, Equipment. Any fixtures or equipment (e.g., an air conditioning compressor or hot water heater) serving a Unit or Units exclusively, and any area.(e.g., a closet or ground slab) upon/within which such fixtures or equipment are located, which are outside the Unit(s), shall be Limited Common Elements of such Unit(s). The maintenance (and cost) of any such equipment and/or areas so assigned shall be the sole responsibility of the Owner of the Unit(s) to which it is assigned. (g) Other. Any other portion of the Common Elements which, by its nature, cannot serve all Units but serves one or more Units (i.e., any hallway serving a single Unit or more than one Unit owned by the same Owner) shall be deemed a Limited Common Element of the Unit(s) served. In the event of any doubt or dispute as to whether any portion of the Common DECLARATION OF CONDOMINIUM --12- Elements constitutes a Limited Common Element or in the event of any question as to which Units are served thereby, a decision shall be made by a majority vote of the Board of Directors of the Association and shall be binding and conclusive when so made. 3.4 Easements. The following easements are hereby created (in addition to any easements created under' the Act): (a) Support. Each Unit, the Building and the Improvements 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 any other structure or improvement in the Condominium. (b) 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 or satellite television, communications and security systems, and other services and drainage in order to serve the Condominium. 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 or satellite television, communications and security systems, or other service or drainage facilities or the use of these easements. The Association or its agents shall have an irrevocable right of access to each Unit and to the Limited Common Elements to maintain, repair or replace the pipes, wires, ducts, vents, cables, conduits and other utility, cable television, communications and similar systems, private elevators, air conditioner equipment, hot water heaters, service and drainage facilities, and to Common Elements contained in the Unit or elsewhere in the Condominium Property, and to remove any improvements interfering with or impairing such facilities or easements herein reserved; provided, such right of access, except in the event of an emergency, shall not unreasonably interfere with the Unit Owner's permitted use of the Unit and Limited Common Elements, and except in the event of an emergency, entry shall be made on not less than one (1) day's notice (which notice shall not, however, be required if the Unit Owner Is absent when the giving of notice is attempted). (c) Encroachments. If (a) any portion of the Common Elements encroaches upon any Unit (or Limited Common Element appurtenant thereto); (b) any Unit (or Limited Common Element appurtenant thereto) encroaches upon any other Unit or upon any portion of the Common Elements; (c) any encroachment shall hereafter occur as a result of (i) construction of the Improvements; (ii), settling or shifting of the Improvements; (iii) any alteration or repair to the Common Elements made by or with the consent of the Association or the Developer, as appropriate; (iv) any repair or restoration of the Improvements (or any portion thereof) or any Unit after damage by fire or other casualty or any taking by condemnation or eminent domain proceedings of all or any portion of any Unit or the Common Elements; or (v) any non-purposeful or non-negligent act of a Unit Owner, then, in any such event, a valid easement shall exist for such DECLARATION OF CONDOMINIUM -_13- encroachment and for the maintenance of same so long as any such Improvements, shall stand. (d) Ingress and Egress. A non-exclusive easement in favor of each Unit Owner and occupant, their guests and invitees, shall exist (i) for pedestrian traffic over, through and across sidewalks, streets, paths, walks, and other portions of the Common Elements as from time to time may be intended and designated for such purpose and use and (ii) for vehicular and pedestrian traffic over, through and across such portions of the Common Elements as from time to time may be paved and intended for such purposes. None of the easements specified in this subparagraph shall be encumbered by any leasehold or lien other than those on the Condominium Parcels. Any such lien encumbering such easements (other than those on Condominium Parcels) automatically shall be subordinate to the rights of Unit Owners and the Association with respect to such easements. (e) Construction and Maintenance. The Developer (including its designees, contractors, successors and assigns) shall have the right, in its (and their) sole discretion from time to time, to enter the Condominium Property and take all other action necessary or convenient for the purpose of completing construction thereof, or any part thereof, or any Improvements or Units located or to be located thereon, and for repair, replacement and maintenance or warranty.purposes where the Association fails to do so or where the Developer, in its sole discretion, determines that it is necessary or desirable to do so. (f) Sales, Marketing and Development Activities. For so long as the Developer is offering units in the ordinary course of business, the Developer, its designees, successors and assigns, shall have (i) the right to use any Units owned or leased by Developer, and any other part of the Common Elements or Association Property, for guest accommodations, models and sales and construction offices, to show model Units and the Common Elements to prospective purchasers and lessees of Units, and to use Units as guest suites, in the Condominium, and to erect on the Condominium Property and Association Property signs and other promotional materials to advertise Units for sale or lease; (ii) such easements over, upon, across and under the Condominium Property as may be reasonably required in connection with the development, construction, decoration, marketing, sale or leasing of any Unit within the Condominium Property, or within any other property owned by the Developer or any of its.affiliates with the surrounding vicinity. (g) Association Easements. The Association and its agents, employees, contractors and assigns shall have easements to enter onto the Condominium Property and Association Property for the purpose of performing such functions as are permitted or required to be performed by such association, including, but not limited to, maintenance, controlled- access activities, if any, fire hose access and enforcement of architectural control and other restrictions. The easements reserved in favor of the DECLARATION OF CONDOMINIUM Association and its agents, employees, contractors and assigns, shall include access easements through all Units and Limited Common Elements to perform exterior maintenance to the Building, including such window washing and painting as the Association may be required to perform, and easements to stage window washing and other maintenance equipment on the Limited Common Elements. (h) Support of Adjacent Structures. In the event that any structure(s) is constructed so asi to be connected in any manner to the Building, then there shall be (and there is hereby declared) an easement of support for such structure(s) as well as for the installation, maintenance, repair and replacement of all utility lines, pipes, and equipment serving the adjacent structure which are necessarily or conveniently located within the Condominium Property (provided that the use of this easement shall not unreasonably interfere with the structure, operation or use of the Condominium Property, or the Building). In the event that any structure(s) is constructed so as to be connected in any manner to the Building and/or any improvements constructed upon the property subject to the control of the Association, then there shall be (and there is hereby declared) an easement of support for such structure(s) as well as for the installation, maintenance, repair and replacement of all utility lines and equipment serving the adjoining structures which are necessarily or conveniently located within the Condominium Property and/or any Association Property. (i) Commercial Units. Without limiting the generality of the foregoing, the Owners and tenants of the Commercial Units, and their employees, guests and.invitees, shall have: (1) any and all easements as necessary or desirable to enable the Commercial Unit Owners and the occupants, tenants, servants and/or employees of the Commercial Units to have unrestricted access to the Parking Areas upon the same terms and conditions as the Owners and occupants of the Residential Units; and (2) to the extent that any Commercial Unit has (a) HVAC and/or other mechanical equipment serving only its Commercial Unit (collectively, "Commercial Mechanical Equipment"), whether located therein or on any other portion of the Common Elements, or (b) is connected to, or derives service (utility or otherwise) from, any meter room, transformer room or other room located within the Condominium Property, and/or from the equipment contained in such rooms and any pipes, lines, ducts, wires and other items which connect the Commercial Unit to such rooms (collectively, the "Utility Equipment"), then any and all easements over and across portions of the Condominium Property as may be reasonably necessary to enable the Commercial Unit Owners, the occupants and/or tenants of the Commercial Unit(s) or their contractors, agents, designee to install, maintain,' operate, repair, replace and/or alter the Commercial Mechanical Equipment or Utility Equipment. Notwithstanding anything to the contrary contained in this Subsection 3.4(i) in exercising any of the easements granted herein, the Commercial Unit Owners may not impair DECLARATION OF CONDOMINIUM -15- I service to any Unit(s) and/or the Common Elements and must comply with Applicable Law. (j) Warranty. For as long as Developer remains liable under any warranty, whether statutory, express or implied, for act or omission of Developer in the development, construction, sale and marketing of the Condominium, then Developer and its contractors, agents and designees shall have the right, in Developer's sole discretion and from time to time, to enter the Common Elements and Units for the purpose of making any necessary inspections, tests, repairs, improvements and/or replacements required for the Developer to fulfill any of its warranty obligations. Failure of the Association or any Unit Owner to grant such access may result in the appropriate warranty being nullified and of no further force or effect. Nothing herein shall be deemed or construed as the Developer making or offering any warranty, all of which are disclaimed (except to the extent same may not be) as set forth herein. (k) Additional Easements. The Developer, for as long as it is offering units for sale in the ordinary course of business, and the Association, through the Board, acting on the Association's behalf and on behalf of all Unit Owners (each of whom hereby appoints the Developer and/or the Association, as applicable, as its attorney-in-fact for this purpose), each shall have the right to grant such additional general ("blanket") and specific electric, gas or other utility, security systems, service or drainage easements, or hurricane shutters (and appropriate bills of sale for equipment, conduits, pipes, lines and similar installations pertaining thereto), or to relocate any such existing easements or drainage facilities, 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 the Developer, while in control of the Association, and, thereafter, the Association shall deem necessary or desirable for the proper operation and maintenance of the Units, or any portions 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 reasonable use of the Units for dwelling purposes. 4. Restraint Upon Separation and Partition of Common Elements. The undivided share in the Common Elements and Common Surplus which is appurtenant to a Unit, and the exclusive right to use all appurtenant Limited Common Elements, shall not be separated therefrom and shall pass with the title to the Unit, whether or not separately described. The appurtenant share in the Common Elements and Common Surplus, and the exclusive right to use all Limited Common Elements appurtenant to a Unit, except as elsewhere herein provided to the contrary, cannot be conveyed or encumbered except together with the Unit. The respective shares in the Common Elements appurtenant to the Units shall remain undivided, and no action may be brought for partition of the Common Elements, the Condominium Property, or any part thereof, except as provided herein with respect to termination of the Condominium. DECLARATION OF CONDOMINIUM —16- 5. Ownership of Common Elements and Common Surplus and Share of Common Expenses: Voting Rights. 5.1 Percentage Ownership and Shares. Each Unit shall own an undivided share of the Common Elements and Common Surplus, and share of the Common Expenses, which shall be based upon the total square footage of such Unit in uniform relationship to the total square footage of each other Unit in the Condominium, as more particularly set forth on Exhibit 112" attached hereto. 5.2 Voting. Each Unit shall be entitled to one (1) vote to be cast by its Owner in accordance with the provisions of the By-Laws and the Articles of Incorporation. Each Unit Owner shall be a member of the Association. 6. Amendments. Except as elsewhere provided herein, amendments to this Declaration may be effected as follows: 6.1 By the Association. Notice of the subject matter of a proposed amendment shall be included in the notice of any meeting at which a proposed amendment is to be considered. A resolution for the adoption of a proposed amendment may be proposed either by a majority of the Board of Directors or by not less than one- third (1/3) of the members of the Association. Except as may be elsewhere provided, approvals must be by an affirmative vote representing in excess of 66 2/3% of the voting interests of Unit Owners. Notwithstanding the foregoing, any amendment to the exemptions granted to the Commercial Units shall be approved by an affirmative vote representing in excess of 80% of the voting 'interests in the Condominium. Directors not present in person at the meeting considering the amendment may vote by telephone conference, while Unit Owners not present at such a meeting may vote by proxy, provided that such proxy is delivered to the Secretary of the Association at or prior to the meeting. 6.2 By the Board. Except as elsewhere provided herein or by the Act, the Board of Directors, upon the unanimous vote of all the directors, shall have the right, without the consent of the Unit Owners, to make the following amendments to this Declaration: (i) amendments made to conform to the requirements of any Institutional First Mortgagee so that such mortgagee will make, insure, or guarantee first mortgage loans on the Units, (ii) amendments required by any governmental authority, or (iii) amendments made to conform with the provisions of this Declaration to any provisions of the Act or any rule promulgated thereunder, or any other applicable statute or regulation now or hereafter adopted or amended, provided however, that no such amendment shall be effective to impose any additional liability or obligation on the Developer. 6.3 Material Amendments. No amendment shall change the configuration or size of any Unit in any material fashion, materially alter or modify the appurtenances to any Unit, or change the proportion or percentage by which the Owner of a Unit shares the Common Expenses and owns the Common Elements and Common Surplus (any such change or alteration being a "Material Amendment"), unless the record Owner(s) thereof, and all record owners of mortgages or other liens thereof, join in the execution of the amendment, and unless the record owners of all other Units approve the Amendment. DECLARATION OF CONDOMINIUM 6.4 Material Alterations or Substantial Additions. The Association shall not make any material alterations or substantial additions to the Common Elements or to real property which is Association Property, without the approval of a majority of the voting interests of the Unit Owners. The installation, replacement and maintenance of approved hurricane shutters shall not be deemed to constitute a material alteration or substantial addition to the appurtenances of the Units, and accordingly, shall not constitute a Material Amendment. 6.5 Mortgagee's Consent. No amendment may be adopted which would eliminate, modify, prejudice, abridge or otherwise adversely affect any rights, benefits, privileges or priorities granted or reserved to mortgagees of Units without the consent of 66 2/3% of such mortgagees in each instance. Except as specifically provided herein or if required by FNMA or FHLMC, the consent and/or joinder of any lien or mortgage holder on a Unit shall not be required for the adoption of an amendment to this Declaration and, whenever the consent or joinder of a lien or mortgage holder is required, such consent or joinder shall not be unreasonably withheld. 6.6 By the Developer. Notwithstanding anything herein contained to the contrary, as long as the Developer is offering units for sale in the ordinary course of business, this Declaration, the Articles of Incorporation or the By-Laws may be amended by the Developer alone, without requiring the consent of any other party, to effect any change whatsoever including, without limitation, those changes to Developer-owned Units permitted in Section 10 of this Declaration, but expressly excluding an amendment: (i) to permit time-share estates (which must be approved, if at all, by all Unit Owners and mortgagees on Units); or (ii) to effect a "Material Amendment" (as defined in Section 6.3 above) or (iii) to effect changes or amendments prohibited to be made by the Developer or by the Association pursuant to the Act. No amendment to this Declaration, the Articles or the By- Laws may be adopted by the Association, the Board or any other party which would eliminate, modify, alter, prejudice, abridge or otherwise adversely affect, in any manner, any rights, benefits, privileges or priorities granted or reserved to the Developer, without the consent of the Developer in each instance which may be withheld in its sole and unfettered discretion. 6.7 Amendments affecting Commercial Units. Notwithstanding anything herein contained to the contrary, no amendment may be adopted to this Declaration, the Articles; the By-Laws or any rules and regulations governing the Condominium Property (other than an amendment adopted by the Developer alone pursuant to any reserved rights it may have under this or any other documents) which would eliminate, modify, prejudice, abridge or otherwise adversely affect any rights, benefits, privileges or priorities granted or reserved to the Commercial Unit Owners, without the consent of at least 80% of all, voting interests in the Condominium. 6.8 Execution and Recording. An amendment, other than amendments made by the Developer alone pursuant to the Act or this Declaration, shall be evidenced by a certificate of the Association, executed either by the President of the Association or a majority of the members of the Board of Directors, which shall include recording information identifying this Declaration and shall be executed with the DECLARATION OF CONDOMINIUM -_18- same formalities required for the execution of a deed. An amendment of this Declaration is effective when the applicable certificate is properly recorded in the public records of the County. No provision of this Declaration shall be revised or amended by reference to its title or number only. Proposals to amend existing provisions of this Declaration shall contain the full text of the provision to be amended; new words inserted in the text shall be underlined; and deleted words shall be lined through with hyphens. However, if the proposed change is so extensive that this procedure would hinder, rather than assist, the understanding of the proposed amendment, it is not necessary to use underlining and hyphens as indicators of words added or deleted, but, instead, a notation must be inserted immediately preceding the proposed amendment in substantially the following language: "Substantial rewording of Declaration. See provision for present text." Nonmaterial errors or omissions in the amendment process shall not invalidate an otherwise properly adopted amendment. 7. Maintenance and Repairs. 7.1 Units. All maintenance, repairs and replacements of, in or to any Unit, whether structural or nonstructural, ordinary or extraordinary, including, without limitation, maintenance, repair and replacement of screens, windows, the interior side of the entrance door and all other doors within or affording access to a Unit, and the electrical (including wiring), plumbing (including fixtures and connections), heating and air-conditioning equipment, fixtures and outlets, appliances, carpets and other floor coverings, all interior surfaces and the entire interior of the Unit lying within the boundaries of the Unit or other property belonging to the Unit Owner, shall be performed by the Owner of such Unit at the Unit Owner's. sole cost and expense, except as otherwise expressly provided to the contrary herein. Notwithstanding the foregoing, any Common Elements located within the Unit shall be maintained by the Association. 7.2 Common Elements. Except to the extent expressly provided to the contrary herein, all maintenance, repairs and replacements in or to the Common Elements and the Residential Limited Common Elements shall be performed by the Association, including, without limitation, any Common Elements located within the boundaries of the Units. The cost and expense of such maintenance, repairs and replacements, shall be charged to all Unit Owners as a Common Expense, except (i) to the extent arising from or necessitated by the negligence, misuse or neglect of specific Unit Owners, in which case such cost and expense shall be paid solely by such Unit Owners; (ii) with respect to the Residential Limited Common Elements, as to which, anything herein to the contrary notwithstanding, all costs and expenses shall be borne solely by the Residential Unit Owners; or (iii) to the extent proceeds of insurance are made available therefor. 7.3 Specific Unit Owner Responsibility. The obligation to maintain and repair the following specific items shall be the responsibility of the Unit Owners, individually, and not the Association, without regard to whether such items are included within the boundaries of the Units or are Limited Common Elements: (a) where a Limited Common Element consists of a balcony, terrace or lanai, the Unit Owner who has the right to the exclusive use of said balcony, DECLARATION OF CONDOMINIUM -_19- I terrace, or lanai shall be responsible for the maintenance, care and preservation of the finished surfaces of floors within said areas, if any, the fixed and/or sliding glass door(s) in the entrance way(s) or other portions of said area, if any, the wiring, electrical outlet(s) and fixture(s) thereon, if any, the replacement of light bulbs, if any, as well as for the general maintenance and 'appearance of such areas, and the insurance of all contents thereon. Notwithstanding the foregoing, the Association shall only be responsible for the structural maintenance, repairs and replacement of all such balconies, terraces and lanais with the owner of the Unit to which they are appurtenant responsible for the general maintenance and appearance of such areas, as well as the insurance of all contents thereon. The approval requirements set forth in Section 9.1 of this Declaration shall be applicable to any proposed improvements to such Limited Common Elements. The Unit Owner shall also maintain, repair and replace, at its sole cost and expense, all portions of any hurricane shutter(s), including such portion of the Common Elements, if any, to which the hurricane shutter(s) is attached (in the event the hurricane shutter(s) is attached to any Common Element, the Common Element to which the hurricane shutter(s) is attached shall become a Limited Common Element upon the attachment of said hurricane shutter(s), the maintenance, repair and replacement of which shall be the responsibility of the Unit Owner). (b). Storage space, if applicable. (c) Where a Limited Common Element consists of a roof, the Association shall be responsible for the maintenance, care and preservation, and as necessary, replacement of said roof. (d) Except as provided in Section 3.3(c), any additions, alterations or improvements to Units or Limited Common Elements shall be subject to the consents and approvals required in Section 9 of this Declaration. 7.4 Reporting to the Association. No Unit Owner shall operate, maintain, repair or replace any portion of the Condominium Property to be operated, maintained, repaired and/ or replaced by the Association, or the Association Property, without first obtaining written approval from the Association. Each Unit Owner shall promptly report to the Association or any applicable management company any defects or need for repairs, maintenance, or replacements, the responsibility for which is that of the Association. 7.5 Authorization to Enter. Whenever it is necessary to enter any Unit for the purpose of performing any maintenance, repair or replacement of any Common Elements or any other Unit, or for making emergency repairs necessary to prevent damage to any Common Elements or to any other Unit, the Owner of the Unit shall permit the Association or persons authorized by it to enter the Unit for such purposes, provided that such entry 'may be made only at reasonable times and with reasonable advance notice, except that in the case of an emergency no advance notice will be required. Any damage resulting from any such entry shall be a Common Expense, except where such entry is required in order to repair a Unit, DECLARATION OF CONDOMINIUM °2g- I in which event the Unit Owner will be responsible for such damage. To facilitate entry in the event of any emergency, the owner of each Unit shall deposit a key to the service entry door of such Unit with the Association. 7.6 Damage Responsibility. Each Unit Owner and resident shall be liable for any damage to the Common Elements, or any Limited Common Elements, or any other Unit, caused by the Unit Owner or by any resident of his Unit, or by any guest or invitee thereof, or caused by fire, leaking water, or other cause emanating from the Unit Owner's Unit, to the extent the cost of repairing any such damage is not paid by insurance obtained by the Association. Any maintenance, repair or replacement which was necessitated by the failure of a Unit Owner or by any of its family, tenants, guests or invitees, to abide by their obligations hereunder, or was caused by the willful or negligent act of a Unit Owner, its family, tenants, guests or invitees, shall be effected by the Association at said Unit Owner's sole expense and a Special Charge therefor shall be made against its Unit; and (b) if the Association determines the Unit Owner has failed to abide by its obligations hereunder, and, to the extent necessary to prevent damage to the Common Elements or to any Unit, the Association may, but shall not be obligated to, perform any maintenance, repair or replacement to any portions of a Unit or the Improvements thereon for which the Unit Owner is responsible, at said Unit Owner's sole expense, and a Special Assessment therefor shall be made against such Unit. 7.7 Common Elements and Association Property. Except to the extent (i) expressly provided to the contrary herein, or (ii) where proceeds of insurance are made available therefor, all maintenance, repairs and replacements in or to the Common Elements (other than those Limited Common Elements to be maintained by the Unit Owners as provided above) and Association Property shall be performed by the Association and the cost and expense thereof shall be assessed to all Unit Owners as a Common Expense, except to the extent arising from or necessitated by the negligence, misuse or neglect of specific Unit Owners, in which case such cost and expense shall be a Special Charge against such units pursuant to Section 13.2(a) hereof. No Unit Owner shall operate, maintain, repair or replace any portion of the Condominium Property to be operated, maintained, repaired and/or replaced by the Association, or the Association Property, without first obtaining written approval from the Association. Each Unit Owner shall promptly report to the Association, or to any applicable management company, any defects or need for repair, maintenance, or replacements, the responsibility for which is that of the Association. 7.8 Exception for Casualty Damage. Notwithstanding anything in this Section 7 to the contrary, in the event any portion of a Unit, Limited Common Element or Common Element required to be maintained by the Association is damaged or destroyed by fire, hurricane or other casualty covered by property insurance which the applicable Unit Owner maintains and which actually covers such damage or destruction, the Association may require the Unit Owner to be responsible for payment of the costs incurred by the Association in repairing and restoring any such damage. DECLARATION OF CONDOMINIUM _21- 8. Additions, Alterations or Improvements by the Association. Whenever in the judgment of the Board of Directors, the Common Elements, the Association Property, or any part of either, shall require capital additions, alterations or improvements (as distinguished from repairs and replacements) costing in excess of $100,000 in the aggregate in any calendar year, the Association may proceed with such additions, alterations or improvements only if the making of such additions, alterations or improvements shall have been approved by a majority of the Unit Owners represented at a meeting at which a quorum is attained. Any such additions, alterations or improvements to such Common Elements or Association Property shall constitute a part of the. Common Expenses and shall be assessed to the Unit Owners as Common Expenses. For purposes of this section, "aggregate in any calendar year" shall include the total debt incurred in that year, if such debt is incurred to perform the above-stated purposes, regardless of whether the repayment of any part of that debt is required to be made beyond that year. 9. Additions, Alterations or Improvements. 9.1 By Unit Owners/Consent of the Board of Directors. No Unit Owner shall make any addition, alteration or improvement in or to his Unit or to any Limited Common Element, the Common Elements or the Association Property, which alters the exterior appearance thereof, which could in any way affect the structural, electrical, plumbing or mechanical systems of the Building, or which otherwise requires the approval of the Association pursuant to Section 17 of this Declaration, without the prior written consent of the Board of Directors. Without limiting the generality of the foregoing, no penetration shall be made in any roof or ceiling slabs, and no post tension cabling shall be disturbed or altered in any way, without the prior written consent of the Board of Directors; (ii) the installation of any heavy object is permitted only with the prior written consent of the Board pursuant to Section 17.11 hereof; and (iii) hard and/or heavy surface floor coverings may not be installed in certain portions of a Unit, without the prior written consent of the Association pursuant to Section 17.11 hereof. To the fullest extent permitted under Applicable Law, applicable warranties of the Developer and its contractors, if any, shall be voided by violations of these requirements. The Board shall have the obligation to answer any written request by a Unit Owner for approval of any such addition, alteration or improvement within thirty (30) days after such request and all additional information requested is received, and the failure to do so within the stipulated time shall constitute the Board's consent. The proposed additions, alterations and improvements by the Unit Owners shall be made in compliance with all laws, rules, ordinances and regulations of all governmental authorities having jurisdiction, and with any conditions imposed by the Association with respect to design, structural integrity, aesthetic appeal, construction details, lien protection or otherwise. Once approved by the Board of Directors, such approval may not be revoked, unless the work is not completed within one (1) year from the date of such approval. A Unit Owner making or causing to be made any such additions, alterations or improvements agrees, and shall be deemed to have agreed, for such Owner, and his heirs, personal representatives, successors and assigns, as appropriate, to hold the Association, the Board of Directors, or any officer, agent or Committee thereof, the Developer and all other Unit Owners, harmless from and to indemnify DECLARATION OF CONDOMINIUM _22- I them for, any liability or damage to the Condominium Property and expenses arising therefrom. Without limiting the generality of the foregoing, any Unit Owner proposing to install any such additions, alterations or improvements within his Unit or the Limited Common Elements shall, if required by the Board of Directors, submit to it a summary of the liability insurance coverage to be obtained for such improvement. From and after the time the installation of the improvement is commenced, and if required by the Board of Directors, the Unit Owner and his heirs, successors and ,assigns shall at all times maintain such insurance coverage under the same terms and in the same amounts as those originally approved by the Board of Directors. Without limiting the generality of Section 11.2 hereof, neither the Association, the Board of Directors, any Committee, member, director, officer, agent or employee thereof, the Developer or manager nor any of their respective directors, officers, Committees, employees, contractors, agents or affiliates, shall be liable for any injury or damage caused by any defects, unsafe conditions or other matters arising from the use (be it authorized or unauthorized) of the afore-described improvements, notwithstanding any approvals given by any of the aforesaid parties as to the installation of such improvements. In the event that the foregoing sentence is ultimately held to be unenforceable,or otherwise not effective, the Unit Owner, his lessees and/or successors in title shall indemnify and hold harmless the Association, its Board of Directors, and the Developer, and all of their respective directors, committee members, officers, employees, contractors, agents and affiliates, for and from all manners of action, claims, judgments, and other liabilities in any way whatsoever connected with any such improvements contemplated herein. The foregoing insurance and indemnity provisions shall also apply to each Owner and occupant of the applicable Unit other than the Developer even if any such improvement is installed by the Developer. The Board of Directors shall, from time to time, establish specifications for hurricane shutters and other hurricane protection which comply with the applicable building codes; and shall establish permitted color(s), type(s), style(s), dimension(s), material(s) and installation requirements for hurricane shutters and other hurricane protection. Subject to the provisions hereof, the Association shall approve the installation or replacement of hurricane shutters and other hurricane protection conforming to the Board's specifications. The Association may condition any such proposed improvement upon, among other things: (i) a reasonable damage deposit being posted with the Association, by the party authorizing work to be done, for protection against damage which may result to the Common Elements or other Units; and/or (ii) a certificate of liability and worker's compensation insurance being provided to the Association, naming the Association as an insured thereunder, as to each party to perform such work. 9.2 Improvements, Additions or Alterations by Developer. Anything to the contrary notwithstanding, the foregoing restrictions of this Section 9 shall not apply to Developer-owned Units. The Developer shall have the additional right, without the consent or approval of the Board of Directors or other Unit Owners, to (a) DECLARATION OF CONDOMINIUM _23- I make alterations, additions or improvements, structural and non-structural, interior and exterior, ordinary and extraordinary, in, to and upon the roof top or any Unit owned by it and any Limited Common Elements appurtenant thereto (including, without limitation, the removal of walls, floors, ceilings and other structural portions of the Improvements), or both of them; and (b) expand, alter or add to all or any part of the recreational facilities. Any amendment to this Declaration required by a change made by the Developer pursuant to this Section 9.2 shall be adopted in accordance with Section 16.7 and Section 10 of this Declaration. To the extent that an amendment hereunder changes the configuration or size of any Unit in any material fashion, materially alters or modifies the appurtenances to the Unit or changes the proportion or percentage by which the Owner of the Unit shares the Common Expenses or owns the Common Surplus, such an amendment shall require the consent of the record owner of the Unit, all record owners of liens on the affected Unit, as well as a majority of total voting interests in addition to any consents required by any governmental entity. 9.3 Improvements, Additions or Alterations by Commercial Unit Owners. Anything to the contrary notwithstanding, the foregoing restrictions of this Section 9 shall not apply to Commercial Units. Additionally, each Commercial Unit Owner shall have the right, without the consent or approval of the Association, or any other Unit Owner or other party, other than the applicable governmental authorities, if and to the extent such approvals are required, to make alterations, additions or improvements, structural and non-structural, interior or exterior, ordinary or extraordinary, in, to and upon any Commercial Unit owned by it and any Limited Common Element terraces, patios, lanais or other areas appurtenant thereto, including, without limitation, the removal of walls, floors, decorative ceilings and other portions thereof, the installation or placement of signage, equipment, furniture, tables, chairs and other furnishings or equipment on any patios and/or terraces appurtenant thereto. The Owner of the Commercial Unit to which any such additions, alterations or improvements have been made, and its successors and assigns, shall indemnify, defend and hold harmless the Association, the Developer and all other Unit Owners from any and all claims, losses, damages and expenses arising from such alterations, additions or improvements, and shall be solely responsible for the maintenance, repair and insurance thereof. Notwithstanding the foregoing, any additions, alterations or improvements must comply with Applicable Law. 9.4 Life Safety Systems. Neither any Unit Owner nor the Association shall make any additions, alterations or improvements to the Life Safety Systems without the prior consent of the appropriate governmental authority. No lock, padlock, bar, 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 emergency signage shall not be altered or removed by any Unit Owner or by the Association without the Association obtaining the consent of the applicable governmental authority having jurisdiction over same. All means of egress must permit unobstructed travel at all times. No barrier including, but not limited to personal property, shall impede the free movement ingress and egress. DECLARATION OF CONDOMINIUM -_24- 10. Changes in Developer-Owned Units. Without limiting the generality of the provisions of paragraph 9.2 above, and anything to the contrary in the Declaration notwithstanding, the Developer shall have the right, without the vote or consent of the Association or Unit Owners, to (i) make alterations,additions or improvements in, to and upon Units owned by the Developer, whether structural or no-structural, interior or exterior, ordinary or extraordinary; (ii) change the layout or number of rooms in any Developer-owned Units; (iii) change the size of Developer-owned Units, by combining separate Developer-owned Units into a single apartment (although being kept as two separate legal Units), or otherwise; and (iv) reapportion among the Developer-owned Units affected by such change in size pursuant to the preceding clause, their appurtenant interests in the Common Elements and share of the Common Surplus and Common Expenses; provided, however that the percentage interest in the Common Elements and share of the Common Surplus and Common Expenses of any Units (other than the affected Developer-owned Units) shall not be changed by reason thereof unless the Owners of such Units shall consent thereto and, provided further, that Developer shall comply with all laws, ordinances and regulations of all governmental authorities having jurisdiction in so doing. In making the above alterations, additions and improvements, the Developer may relocate and alter Common Elements adjacent to or near such Units, incorporate portions of the Common Elements into adjacent Units and incorporate Units into adjacent Common Elements, provided that the Owners of such Units consent thereto and that any such relocation and alteration does not materially adversely affect the market value or ordinary use of Units owned by Unit Owners other than the Developer. Any amendments to this Declaration required by changes of the Developer made pursuant to this Section 10, shall be effected by the Developer alone pursuant to Section 6.6, without the vote or consent of the Association or Unit Owners (or their mortgagees) required, except to the extent that any of the same constitutes a Material Amendment, in which event, the amendment must be approved as set forth in Section 6.3 above. Without limiting the generality of Section 6.6 hereof,, the provisions of this section may not be added to, amended or deleted without the prior written consent of the Developer. To the extent that an amendment hereunder changes the configuration or size of any Unit in any material fashion, materially alters or modifies the appurtenances to the Unit or changes the proportion or percentage by which the Owner of the Unit shares the Common Expenses or owns the Common Surplus, such an amendment shall require the consent of the record owner of the Unit, all record owners of liens on the affected Unit, and a majority of total voting interests, unless required by any governmental entity. 11. Operation of the Condominium by the Association. 11.1 Powers and Duties. The Association shall be the entity responsible for the operation of the Condominium and the Association Property. The powers and duties of the Association shall include those set forth in the Articles of Incorporation and By-Laws (respectively Exhibits "3" and 'A" annexed hereto), as amended from time to time. In addition, the Association shall have all the powers and duties set forth in the Act, as well as all powers and duties granted to or imposed upon it by this Declaration, including, without limitation: (a) The irrevocable right to have access to each Unit from time to time during reasonable hours as may be necessary for the maintenance, repair or replacement of any Common Elements, Limited Common Elements or any portions of a Unit to be maintained by the Association, or at any time DECLARATION OF CONDOMINIUM —25- I and by force, if necessary, to prevent damage or to make emergency repairs to the Common Elements, the Association Property or to a Unit or Units. (b) The power to make and collect Assessments, Charges and other levies against Unit Owners and to require, administer, lease, maintain, repair and replace the Common Elements and Association Property. (c) The duty to maintain accounting records pursuant to accepted accounting practices, which shall be open to inspection by Unit Owners or their authorized representatives at reasonable times upon prior request. (d) The power to contract for the management and maintenance of the Condominium Property and to authorize a management agent (who may or may not be an affiliate of the Developer) to assist the Association in carrying out its powers and duties by performing such functions as the submission of proposals, collection of Assessments and Charges, preparation of records, enforcement of rules and maintenance, repair and replacement of Common Elements with such funds as shall be made available by the Association for such purposes. The Association and its officers shall, however, retain at.all times the powers and duties granted in this Declaration, the Articles, By-laws, rules and regulations and the Act, including, but not limited to, the making of Assessments, promulgation of rules and regulations and execution of contracts on behalf of the Association. (e) Subject to the provisions of Section 8, the power to borrow money, execute promissory notes and other evidences of indebtedness and to give as security therefor mortgages and security interests in property owned by the Association, if any, provided that such actions are approved by a majority of the entire membership of the Board of Directors and a majority of the Units represented at a meeting at which a quorum has been attained, or by such greater percentage of the Board or Unit Owners as may be specified in the By-Laws with respect to certain borrowing, provided that no such action shall be permitted while the Developer owns any Unit without the prior written consent of the Developer. (f) The power to adopt and amend rules and regulations concerning the details of the operation and use of the Condominium Property. (g) The power to charge a fee for the exclusive use of any Common Elements (other than Limited Common Elements) or Association Property to any Unit Owner being granted, by the Association, a right to such exclusive use. (h) The power to acquire, convey, lease and encumber real and personal property. Personal property shall be acquired, conveyed, leased or encumbered upon a majority vote of the Board of Directors, subject to Section 8 hereof. Real property shall be acquired upon a majority vote of the Board of Directors; provided that the requirements of Section 8 DECLARATION OF CONDOMINIUM -26- pertaining to the Unit Owners' approval of costs in excess of the threshold amount stated therein (including the proviso regarding the debt incurred) shall also apply to the acquisition of real property; provided, further, however, that the acquisition of a Unit as a result of a foreclosure of the lien for Assessments or Charges (or by deed in lieu of foreclosure) shall be made upon the majority vote of the Board, regardless of the price for same and the Association, through its Board, has the power to hold, lease, mortgage or convey the acquired Unit without requiring the consent of Unit Owners. (i) All of the powers which a corporation not for profit in the State of Florida may exercise pursuant to this Declaration, the Articles of Incorporation, the By-Laws, Chapters 607 and 617, Florida Statutes and the Act, in all cases except as may be expressly limited or restricted therein. In the event of conflict among the powers and duties of the Association or the terms and provisions of this Declaration, this Declaration shall take precedence over the Articles of Incorporation, By-Laws and applicable rules and regulations, all as amended from time to time. Notwithstanding anything in this Declaration to the contrary, the Association shall at all times be the entity having ultimate control over the Condominium, to the extent required under the Act. 11.2 Limitation Upon Liability of Association. Notwithstanding the duty of the Association to maintain and repair parts of the Condominium Property, the Association shall not be liable to Unit Owners for injury or damage, other than for the cost of maintenance and repair required hereunder, caused by any latent condition of the Condominium Property. Further, the Association shall not be liable for any such injury or damage caused by defects in design or workmanship or any other reason connected with any additions, alterations or improvements or other activities done by or on behalf of any Unit Owners regardless of whether or not same shall have been approved by the Association pursuant to Section 9.1 hereof. The Association's rights of review and approval of plans and other submissions under this Declaration are intended solely for the benefit of the Association. Neither the Association nor any of its officers, directors, committees, employees, agents, contractors, consultants or attorneys shall be liable to any Owner or any other person by reason of mistake in judgment, failure to point out or correct deficiencies in any plans or other submissions, negligence or any other misfeasance, malfeasance or non-feasance arising out of or in connection with the approval or disapproval of any plans or submissions. Anyone submitting plans hereunder, by the submission of same, and any Owner, by acquiring title to his Unit, agrees not to seek damages from the Association arising out of the Association's review of any plans hereunder. Without limiting the generality of the foregoing, the Association shall not be responsible for reviewing (nor shall its review of any plans be deemed approval of) any plans from the standpoint of structural safety, soundness, workmanship, materials, usefulness, conformity with building or other codes or industry standards or compliance with governmental requirements. Further, each Owner (including the successors and assigns) agrees to indemnify and hold the Association harmless from and against any and all costs, claims (whether rightfully or wrongfully asserted), damages, expenses and liabilities whatsoever (including, without limitation, reasonable DECLARATION OF CONDOMINIUM —27- attorneys' fees and court costs at all trial and appellate levels), arising out of any review of plans by the Association hereunder. The Association also shall not be liable to any Unit Owner or lessee or to any other person or entity for any property damage, theft, personal injury, death or other liability, including (without limitation) any liability for any damaged or stolen vehicles or other personal property left therein or elsewhere within the Common Elements, or on the grounds that the Association did not obtain or maintain insurance (or carried insurance with any particular deductible amount) for any particular matter where: (i) such insurance is not required hereby; or (ii) the Association could not obtain such insurance at reasonable costs or upon reasonable terms. 11.3 Restraint Upon Assignment of Shares in Assets. The share of a Unit Owner in the funds and assets of the Association cannot be assigned, hypothecated or transferred in any manner except as an appurtenance to the Unit. 11.4 Approval or Disapproval of Matters. Whenever the decision of a Unit Owner is required as to any matter, whether or not the subject of an Association meeting, that decision shall be expressed by the same person who would cast the vote for that Unit if at an Association meeting, unless the joinder of all record Owners of the Unit is specifically required by this Declaration, the Articles, the By-Laws or under Applicable Law. 11.5 Acts of the Association. Unless the approval or action of Unit Owners, and/or a certain specific percentage of the Board of Directors, is specifically required in this Declaration, the Articles or By-Laws, applicable rules and regulations or Applicable Law, all approvals or actions permitted to be given or taken by.the Association shall be given or taken by the Board of Directors, without the consent of Unit Owners, and the Board may so approve and act through the proper officers of the Association without a specific resolution. When an approval or action of the Association is permitted to be given or taken hereunder or thereunder, such action or approval may be conditioned in any manner the Association deems appropriate or the Association may. refuse to take or give such action or approval without the necessity of establishing the reasonableness of such conditions or refusal. 11.6 Effect on Developer. Notwithstanding anything herein to the contrary, if the Developer holds one or more Units for sale in the ordinary course of business, none of the following actions may be taken without the prior written approval of Developer. (a) Assessment of the Developer as a Unit Owner for capital improvements, or for transitional engineers or attorneys or for legal expenses incurred in any other action that would be detrimental to the sales of Units by the Developer, provided however, that an increase in periodic Assessments for Common Expenses, without discrimination against the Developer, shall not be deemed to be detrimental to its sales of Units; (b) Any action by the Association that would, in the Developer's sole and exclusive opinion, be detrimental to the construction, decorating, design, marketing, promotion or sale of Units by the Developer; provided, DECLARATION OF CONDOMINIUM °28- however, that an increase in periodic Assessments for Common Expenses without discrimination against the Developer shall not be deemed to be detrimental to the sale of Units. 12. Determination of Common Expenses and Fixing of Assessments Therefor. The Board of Directors shall from time to time, and at least annually, prepare a budget for the Condominium, determine the amount of Assessments payable by the Unit Owners to meet the Common Expenses and allocate and assess such expenses among the Unit Owners in accordance with the provisions of this Declaration and the By-laws. The Board of Directors shall advise all Unit Owners promptly in writing of the amount of the Assessments payable by each of them as determined by the Board of Directors as aforesaid and shall furnish copies of the budget, adopted from time to time, on which such Assessments are based, to all Unit Owners and (if requested in writing) to their respective mortgagees. The Common Expenses shall include the expenses of and reserves for (if and to the extent required by, and not waived in accordance with Applicable Law or established by the Association), the operation, maintenance, repair and replacement of the Condominium Property and/or Association Property, costs of carrying out the powers and duties of the Association and any other expenses designated as Common Expenses by the Act, this Declaration, the Articles or By-Laws, applicable rules and regulations or by the Association. Incidental income to the Association, if any, may be used to pay regular or extraordinary Association expenses and liabilities, to fund reserve accounts, or otherwise as the Board shall designate, subject to change, to cover actual expenses at any time. Any such change shall be adopted consistent with the provisions of this Declaration and the By-Laws. 13. Collection of Assessments. 13.1 Liability for Assessments and Charges.A Unit Owner, regardless of how title is acquired, including a purchaser at a judicial sale, shall be liable for all Assessments coming due while he is the Unit Owner. The grantee shall be jointly and severally liable with the grantor for all unpaid Assessments and Charges against the grantor for his share of the Common Expenses up to the time of the conveyance, without prejudice to any right the grantee may have to recover from the grantor any amounts paid by the grantee. The liability for Assessments may not be avoided by waiver of the use or enjoyment of any Common Elements or by the abandonment of the Unit for which the Assessments are made or otherwise. 13.2 Special and Capital Improvement Assessments and Charges. In addition to Assessments levied by the Association to meet the Common Expenses of the Condominium and the Association, the Board of Directors may levy "Special Assessments" and "Capital Improvement Assessments" upon the following terms and conditions: (a) "Special Assessments" shall mean and refer to a charge against each Owner and his Unit, representing a portion of the costs incurred by the Association for specific purposes of a nonrecurring nature which are not in the nature of capital improvements or representing funds otherwise required by the Association and not produced by the regular Assessments received by the Owners. DECLARATION OF CONDOMINIUM _29- (b) "Capital Improvement Assessments" shall mean and refer to a charge against each Owner and his Unit, representing a portion of the costs incurred by the Association for the acquisition, installation, construction or replacement (as distinguished from repairs and maintenance) of any capital Improvements located or to be located within the Limited Common Elements or Association Property. (c) Special Assessments and Capital Improvement Assessments may be levied by the Board and shall be payable in lump sums or installments, in the discretion of the Board; provided that, if such Special Assessment or Capital Improvements Assessments, in the aggregate in any year, exceed $125,000.00 or cause the total Assessments levied to exceed 115% of the Assessments for the preceding calendar year, the Board must obtain approval of a majority of the Units represented at a meeting at which a quorum is attained. 13.3 Default in Payment of Assessments for Common Expenses and Charges. Assessments and Charges, and installments thereof, not paid within ten (10) days from the first day of the period in which they become due shall bear interest at the rate of eighteen percent (18%) per annum, or the highest rate permitted by law, whichever is less. The Association may also charge an administrative late fee, in addition to such interest, in an amount not to exceed the highest amount provided for in the Act (as it may be amended from time to time).The Association has a lien on each Condominium Parcel to secure the payment of Assessments, together with any Charges constituting interest and reasonable costs and attorney's fees incurred by the Association incident to the collection of the Assessments or enforcement of the lien. Except as otherwise provided in the Act, and as set forth below, the lien for Assessments and Charges described above is effective from, and shall relate back to the recording of this Declaration. However, as to first mortgages of record, the lien for Assessments is effective from and after recording of a claim of lien in the Public Records of the County. Notwithstanding anything herein to the contrary, Charges other than interest and reasonable attorney's fees and costs relating to the collection process shall not be Common Expenses, shall not be collectible as Assessments, and shall not be secured by the Association's lien rights arising pursuant to the Act. The Association's lien for Charges is created solely pursuant to this Declaration and is effective only from and after the recording of a claim of lien by the Association. The lien shall be evidenced by the recording of a claim of lien in the Public Records of the County, stating the description of the Unit, the name of the record Unit Owner, the name and address of the Association, the amount due and the due dates. The claim of lien shall not be released until all sums secured by it (or such other amounts as to which the Association shall agree by way of settlement) have been fully paid or until it is barred by law. No such lien shall be effective longer than one (1) year after the claim of lien was recorded unless, within that time, an action to enforce the lien is commenced. The one-year period shall automatically be extended for any length of time during which the Association is prevented from filing a foreclosure action by an automatic stay resulting from a bankruptcy petition filed by the Unit Owner or any other person claiming an interest in the parcel. The claim of lien shall secure (whether or not DECLARATION OF CONDOMINIUM —30- I stated therein) all unpaid Assessments and Charges of interest and all reasonable costs and attorneys' fees incurred by the Association incident to the collection process. A claim of lien shall be signed and acknowledged by an officer or agent of the Association. Upon payment, the person making the payment is entitled to a satisfaction of the lien in recordable form. The Association may bring an action in its name to foreclose a lien for unpaid Assessments or Charges in the manner a mortgage of real property is foreclosed and may also bring an action at law to recover a money judgment for the unpaid Assessments and Charges without waiving any claim of lien. As an additional right and remedy of the Association, upon default in the payment of Assessments as aforesaid and after thirty (30) days' prior written notice to the applicable Unit Owner and the recording of a claim of lien, the Association may declare the balance of the Assessment installments for the current budget year to be accelerated and immediately due and payable. In the event that the amount of such installments changes during the period for which Assessments. were accelerated, the Unit Owner or the Association, as appropriate, shall be obligated to pay or reimburse to the other the amount of increase or decrease within ten (10) days of same taking effect. 13.4 Notice of Intention to Foreclose Lien. No foreclosure judgment may be entered until at least thirty (30) days after the Association gives written notice to the Unit Owner of its intention to foreclose its lien to collect the unpaid Assessments or Charges. If this notice is not given at least thirty (30) days before the foreclosure action is filed, and if the unpaid Assessments or Charges, including those coming due after the claim of lien is recorded, are paid before the entry of a final judgment of foreclosure, the Association shall not recover attorney's fees or costs. The notice must be given by delivery of a copy of it to the Unit Owner or by certified or registered mail, return receipt requested, addressed to the Unit Owner at the last known address, and upon such mailing, the notice shall be deemed to have been given. If after diligent search and inquiry the Association cannot find the Unit Owner or a mailing address at which the Unit Owner will receive the notice, the court may proceed with the foreclosure action and may award attorney's fees and costs as permitted by law. The notice requirements of this subsection are satisfied if the Unit Owner records a Notice of Contest of Lien as provided in the Act. 13.5 First Mortgagees. Any first mortgagee or its successors or assignees who acquire title to a Unit by foreclosure or by deed in lieu of foreclosure or otherwise, is liable for all Assessments which come due while it is the Unit Owner and is jointly and severally liable with the previous Unit Owner for all unpaid Assessments which came due up to the time of the transfer of title. This liability is without prejudice to any rights the first mortgagee or any such other party may have to recover any such sums it may have paid to the Association from the previous Unit Owner. Notwithstanding the foregoing, in no event shall any such first mortgagee or its successors or assigns be liable for more than the Unit's unpaid Assessments which accrued or come due during the six (6) months immediately preceding its acquisition of title to the Unit, and for which payment in full has not been received by the Association, or by one percent (1%) of the original mortgage debt, whichever amount is less. The provisions of this DECLARATION OF CONDOMINIUM -_31- paragraph shall not apply unless the first mortgagee or its successors or assigns joins the Association as'a defendant in the foreclosure action. Joinder of the Association is not required if, on the date the complaint is filed, the Association was dissolved or did not,maintain an office or agent for service of process at a location which was known to or reasonably discoverable by the mortgagee. The person acquiring title shall pay the amount owed to the Association within thirty (30) days after the transfer of title. Failure to pay the amount owed to the Association when due shall entitle the Association to record a claim of lien against the Unit and proceed in the same manner as provided in this section for unpaid assessments. The foregoing limitation of liability shall apply to any purchase at a foreclosure sale of a first mortgage regardless of whether the purchaser is the holder of the foreclosed mortgage. A first mortgagee acquiring title to a Unit as a result of foreclosure or deed in lieu thereof may not, during the period of ownership of such Unit, whether or not such Unit is unoccupied, be excused from the payment of some or all of the Assessments coming due during the period of such ownership. 13.6 Certificate of Unpaid Assessments. Within fifteen (15) days after request by a Unit Owner or mortgagee of a Unit, the Association shall provide a certificate stating: whether all- Assessments, Charges and other monies owed to the Association by the Unit. Owner with respect to. his Unit have been paid. Any person other than the Unit Owner who relies upon such certificate shall be protected thereby. 13.7 Installments. Regular Assessments shall be collected monthly or quarterly, in advance, at the option of the Association. Initially, Assessments will be collected monthly. 13.8 Application of Payments. Any payments received by the Association from a delinquent Unit Owner for Assessments shall be applied first to any interest accrued by the Association, then to any administrative late fee, then to any costs and reasonable attorney's fees incurred. in collection, and then to the delinquent Assessment. Any payments received by the Association from a delinquent Unit Owner for Charges shall be applied first to any interest accrued by the Association, then to any administrative late fee, then to any costs and reasonable attorney's fees incurred in collection, and then to the delinquent Charge. The foregoing shall be applicable notwithstanding any restrictive endorsement, designation or instruction placed on or accompanying a payment. 13.9 Developer Credits. Developer shall be responsible for the payment of its pro rata share of the assessments for all units it owns. Developer may take credits against any unpaid Assessments for monies Developer previously advanced on behalf of the Association. These items shall specifically include, but not be limited to, insurance premiums and utility deposits as well as those items disclosed in the Budget. 14. Insurance. Insurance covering the Condominium Property shall be governed by the following provisions: 14.1 Purchase Custody and Payment. DECLARATION OF CONDOMINIUM _32- (a) Purchase. All insurance policies described herein covering portions of the Condominium Property shall be purchased by the Association and shall be issued by an insurance company authorized to do business in Florida. (b) Approval. Each insurance policy, the agency and company issuing the policy and the Insurance Trustee (if appointed) hereinafter described shall be subject to any modifications which may be reasonably required by the Primary Institutional First Mortgagee. (c) Named Insured. The named insured shall be the Association, individually, and as agent for the Unit Owners covered by the policy, without naming them, and as agent for their mortgagees, without naming them. The Unit Owners and their,mortgagees shall be deemed additional insureds. (d) Custody of Policies and Payment of Proceeds. All policies shall provide that payments for losses made by the insurer shall be paid to the Insurance Trustee (if appointed), and all policies and endorsements thereto shall be deposited with the Insurance Trustee (if appointed). (e) Copies to Mortgagees. One copy of each insurance policy, or a certificate evidencing such policy, and all endorsements thereto, shall be furnished by the Association upon request to each Institutional First Mortgagee who holds a mortgage upon a Unit covered by the policy. Copies or certificates shall be furnished not less than ten (10) days prior to the beginning of the term of the policy, or not less than ten (10) days prior to the expiration of each preceding policy that is being renewed or replaced, as appropriate. (f) Personal Property and Liability. Except as specifically provided herein or by the Act, the Association shall not be responsible to Unit Owners to obtain insurance coverage upon the property lying within the boundaries of their Unit, including, but not limited to, their personal property, or for their personal liability and living expenses and for any other risks not otherwise insured'in accordance herewith. 14.2 Coverage. The Association shall use commercially reasonable efforts to maintain insurance covering the following: (a) Casualty. The Condominium Property and all Association Property shall be insured in an amount not less than 100% of the full insurable replacement value thereof, excluding foundation and excavation costs. Such policy shall cover, among other things, all Common Elements and all of the Units within the Condominium including, but,not limited to, partition walls, doors, windows, and stairways. Such policy shall not include hurricane shutters, unit floor coverings, wall coverings, ceiling coverings, electrical fixtures, appliances, air conditioner or heating equipment, water heaters, built-in cabinets or personal property. Such policy may also exclude any other property permitted to be excluded from the Condominium's insurance policy pursuant to the Act, as amended from time to time and may contain reasonable deductible provisions as determined by the Board of Directors. Such coverage shall afford DECLARATION OF CONDOMINIUM —33- I protection against loss or damage by fire and other hazards covered by a standard extended coverage endorsement, and such other risks as from time to time are customarily covered with respect to buildings and improvements similar to the Condominium in construction, location and use, including, but not limited to, vandalism and malicious mischief. (b) Liability. Comprehensive general public liability and automobile liability insurance, if applicable, covering loss or damage resulting from accidents or occurrences on or about or in connection with the Insured Property or adjoining driveways and walkways, or any work, matters or things related to the Insured Property, with such coverage as shall be required by the Board of Directors of the Association, but with combined single limit liability of not less than $1,000,000 for each accident or occurrence, $100,000 per person and $50,000 property damage, and with a cross liability endorsement to cover liabilities of the Unit Owners as a group to any Unit Owner, and vice versa. The Association may also obtain and maintain liability insurance for its directors and officers and for the benefit of the Association's employees. (c) Workers' Compensation and other mandatory insurance, when applicable. (d) Flood Insurance covering the Common Elements, Association Property and Units if required by the Primary Institutional First Mortgagee or FNMA/FHLMC, or if the Association so elects. (e) Fidelity Insurance if required by the Act or FNMA/FHLMC, covering all persons who control or disburse Association funds, such insurance to be in an amount not less than the greater of (i) the maximum funds that will be in the custody of the Association or its management agent at any one time or (ii) such amounts as may be required, from time to time, under the Act. (f) Association Property. Appropriate additional policy provisions, policies or endorsements extending the applicable portions of the coverage described above to all Association Property, where such coverage is available. (g) Such Other Insurance as the Board of Directors of the Association shall determine from time to time to be desirable. When appropriate and obtainable, each of the foregoing policies shall waive the insurer's right to: (i) subrogation against the Association and against the Unit Owners individually and as a group, (ii) to pay only a fraction of any loss in the event of coinsurance or 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 Association, a member of the Board of Directors of the Association, one or more Unit Owners or as a result of contractual undertakings. Additionally, each policy shall provide that any insurance trust agreement will be recognized, that the insurance provided shall not be prejudiced by any act or DECLARATION OF CONDOMINIUM -_34- omissions of individual Unit Owners that are not under the control of the Association, and that the policy shall be primary, even if a Unit Owner has other insurance that covers the same loss. Every casualty insurance policy obtained by the Association, if required by FNMA/FHLMC, shall have the following endorsements: (i) agreed amount and inflation guard; and (ii) steam boiler coverage (providing at least $50,000 coverage for each accident at each location), if applicable. 14.3 Additional Provisions. All policies of insurance shall provide that such policies may not be canceled or substantially modified without endeavoring to provide at least thirty (30) days' prior written notice to all of the named insureds, including all mortgagees of Units. Prior to obtaining any policy of casualty insurance or any renewal thereof, the Board of Directors shall obtain an appraisal from a fire insurance company, or other competent appraiser, of the full insurable replacement value of the insured Property (exclusive of foundations), without deduction for depreciation, for the purpose of determining the amount of insurance to be effected pursuant to this section. 14.4 Premiums. Premiums upon insurance policies purchased by the Association shall be paid by the Association as a Common Expense, except that the costs of fidelity bonding for any management company employee may be paid by such company pursuant to its contract with the Association. Premiums may be financed in such a manner as the Board of Directors deems appropriate.. 14.5 Insurance Trustee: Share of Proceeds. All insurance policies obtained by or on behalf of the Association shall be for the benefit of the Association, the Unit Owners and their mortgagees, as their respective. interests may appear, and shall provide that all proceeds covering property losses shall be paid to the Insurance Trustee which may, but need not, be designated by the Board of Directors and which, if so appointed, shall be a bank or trust company in Florida with trust.powers, with its principal place of business in the State of Florida. References herein to the Insurance Trustee shall be deemed to apply to the Board of Directors if it fails, or determines not to appoint an Insurance Trustee as provided in Section 14.10 below. The Insurance Trustee shall not be liable for payment of premiums, nor for the renewal or the sufficiency of policies, nor for the failure to collect any insurance proceeds. The duty of the Insurance Trustee shall be to receive such proceeds as are paid and to hold the same in trust for the purposes elsewhere stated herein, and for the benefit of the Unit Owners and their respective mortgagees in the following shares, but shares need not be set forth on the records of the Insurance Trustee: (a) Insured Property. Proceeds on account of damage to the Insured Property shall be held in undivided shares for,each Unit Owner, such shares being the same as the undivided shares in the Common Elements appurtenant to each Unit, provided that if the Insured Property so damaged includes.property lying within the boundaries of specific Units, that portion of the proceeds allocable to such property shall be held as if that portion of the Insured Property were Optional Property as described in paragraph (b) below. In the event the Insured Property so damaged DECLARATION OF CONDOMINIUM —35- includes property designated Residential Limited Common Elements that portion of proceeds shall be held in undivided shares for each Residential Unit Owner, such shares being the same as the undivided shares in the Residential Limited Common Elements as set forth in Exhibit "2-13". (b) Optional Property. Proceeds on account of damage solely to Units and/or certain portions or all of the contents thereof not included in the Insured Property (all as determined by the Association in its sole discretion) (collectively the "Optional Property"), if any, is collected by reason of optional insurance which the Association elects to carry thereon (as contemplated herein), shall be held for the benefit of Owners of Units or other portions of the Optional Property damaged in proportion to the cost of repairing the damage suffered by each such affected Owner, which cost and allocation shall be determined in the sole discretion of the Association. (c) Mortgagees. No mortgagee shall have any right to determine or to participate in the determination as to whether or not any damaged property shall be reconstructed or repaired, and no mortgagee shall have any right to apply or have applied to the reduction of a mortgage debt any insurance proceeds, except for actual distributions thereof made to the Unit Owner and mortgagee pursuant to the provisions of this Declaration. 14.6 Distribution of Proceeds. Proceeds of insurance policies received by the Insurance Trustee shall be distributed to or for the benefit of the beneficial owners thereof in the following manner: (a) Expenses of the Trust. All expenses of the Insurance Trustee shall be first paid or provision shall be made therefor. (b) Reconstruction or Repair. If the damaged property for which the proceeds are paid is to be repaired or reconstructed, the remaining proceeds shall be paid to defray the cost thereof as elsewhere provided herein. Any proceeds remaining after defraying such costs shall be distributed to the beneficial owners thereof, remittances to Unit Owners and their mortgagees being payable jointly to them. (c) Failure to Reconstruct or Repair. If it is determined in the manner elsewhere provided that the damaged property for which the proceeds are paid shall not be reconstructed or repaired, the remaining proceeds shall be allocated among the beneficial owners as provided in Section 14.5 above, and distributed first, to all Institutional First Mortgagees in an amount sufficient to pay off their mortgages; second, to the Association for any due and unpaid Assessments or Charges; and third, the balance, if any, to the beneficial owners. (d) Certificate. In making distributions to Unit Owners and their mortgagees, the Insurance Trustee (if appointed) may rely upon a certificate of the Association made by its President and Secretary as to. the names of the DECLARATION OF CONDOMINIUM —36- Unit. Owners and their mortgagees and their respective shares of the distribution. 14.7 Association as Agent. The Association is hereby irrevocably appointed as agent and attorney-in-fact for each Unit Owner and for each owner of a mortgage or other lien upon a Unit and for each owner of any other interest in . the Condominium Property, to adjust all claims arising under insurance policies purchased by the Association and to execute and deliver releases upon the payment of claim. 4 14,8 Unit Owners' Personal Coverage. Unless the Association elects otherwise, the insurance purchased by'the Association shall not cover claims against an Owner due to accidents occurring within his Unit, or casualty or theft loss to the contents of an Owner's Unit. It shall be the obligation of the individual Unit Owner, if such Owner so desires, to purchase and pay for all insurance as to all such risks and as to any other risks not covered by insurance carried by the Association, including insurance for personal belongings located on Limited Common Elements. 14.9 Benefit of Mortgagees. Certain provisions in this Section 14 entitled "Insurance" are for the benefit of mortgagees of Units and may be enforced by such mortgagees. 14.10 Appointment of Insurance Trustee. The Board of Directors shall have the option in its discretion of appointing an Insurance Trustee hereunder. If the Association fails or elects not to appoint an Insurance Trustee, the Association will perform directly all obligations imposed upon the Insurance Trustee by this Declaration. Fees and expenses of any Insurance Trustee are Common Expenses. 14.11 Presumption as to Damaged Property. In the event of a dispute or lack of certainty as to whether damaged property constitutes a Unit(s), Limited Common Elements or Common Elements, such property shall be presumed to be Common Elements. 15. Reconstruction or Repair After Fire or Other Casualty. 15.1 Determination to Reconstruct or Repair. Subject to the immediately following paragraph, in the event of damage to or destruction of the Insured Property (and the Optional Property, if insurance has been obtained by the Association with respect thereto) as a result of fire or other casualty, the Board of Directors shall arrange for the prompt repair and restoration of the Insured Property (and the Optional Property, if insurance has been obtained by the Association with respect thereto) and the Insurance Trustee (if appointed) shall disburse the proceeds of all insurance policies to the contractors engaged in such repair and restoration in appropriate progress payments. If 75% or more of the Insured Property (and the Optional Property, if insurance has been obtained by the Association with respect thereto) is substantially damaged and if Unit Owners owning 80% of the applicable interests in the Common Elements duly and promptly resolve not to proceed with the repair or DECLARATION OF CONDOMINIUM -_37- restoration thereof, and a Majority of Institutional First Mortgagees approve such resolution, the Condominium Property will not be repaired and shall be subject to an action for partition instituted by the Association, any Unit Owner, mortgagee or lienor, as if the Condominium Property were owned in common, in which event the net proceeds of insurance resulting from such damage or destruction shall be first applied to demolish any remaining improvements, and shall thereafter be divided among all the Unit Owners in proportion to their respective interests in the Common Elements (with respect to proceeds held for damage to the Insured Property other than that portion of the Insured Property lying within the boundaries of the Unit), and among affected Unit Owners in proportion to the damage suffered by each such affected Unit Owner, as determined in the sole discretion of the Association (with respect to proceeds held for damage to the Optional Property, if any, and/or that portion of the Insured Property lying within the boundaries of the Unit); provided, however, that no payment shall be made to a Unit Owner until there has first been paid off out of his share of such fund all mortgages, liens and Assessments and Charges on his Unit in the order of priority of such mortgages, liens, Assessments and Charges. Whenever in this section the words "promptly repair" are used, it shall mean that repairs are to begin not more than sixty (60) days from the date the Insurance Trustee (if appointed) or the Association notifies the Board of Directors and Unit Owners that it holds proceeds of insurance on account of such damage or destruction sufficient to pay the estimated cost of such work, or not more than ninety (90) days after the Insurance Trustee (if appointed) or the Association notifies the Board of Directors and the Unit Owners that such proceeds of insurance are insufficient to pay the estimated costs of such work, provided however, that the Board may, in its sole discretion, grant written extensions for such periods as the Board determines. The Insurance Trustee (if appointed) may rely upon a certificate of the Association made by its President and Secretary to determine whether or not the damaged property is to be reconstructed or repaired. 15.2 Plans and Specifications. Any reconstruction or repair must be made substantially in accordance with the plans and specifications for the original improvements and then applicable building and other codes; or if not, then in accordance with the plans and specifications approved by the Board of Directors or the Association and then applicable building and other codes, and, if the damaged property which is to be altered is the Optional Property, by the Owners of not less than 80% of the applicable interests in the Common Elements, as well as the Owners of all Units and other portions of the Optional Property (and their respective mortgagees) the plans for which are to be altered. 15.3 Special Responsibility. If the damage is only to those parts of the Optional Property for which the responsibility of maintenance and repair is that of the respective Unit Owners, then the Unit Owners shall be responsible for all necessary reconstruction and repair, which shall be effected promptly and in accordance with guidelines established by the Board of Directors (unless insurance proceeds are held by the Association with respect thereto by reason of the purchase of optional insurance thereon, in which case the Association shall have the responsibility to reconstruct and repair the damaged Optional Property, DECLARATION OF CONDOMINIUM —38- provided the respective Unit Owners shall be individually responsible for any amount by which the cost of such repair or reconstruction exceeds the insurance proceeds held for such repair or reconstruction on a Unit by Unit basis, as determined in the sole discretion of the Association). In all other instances, the responsibility for all necessary reconstruction and repair shall be that of the Association. (a) Disbursement.. The proceeds of insurance collected on account of a casualty, and the sums collected from Unit Owners on account of such casualty, shall constitute a construction fund which shall be disbursed in payment of the costs of reconstruction and repair in the following manner and order: i (i) Association - Lesser Damage. If the amount of the estimated cost of reconstruction and repair which are the responsibility of the Association is less than $100,000, then the construction fund shall be disbursed in payment of such costs upon the order of the Board of Directors; provided, however, that upon request to the Insurance Trustee (if appointed) by an Institutional First Mortgagee which is a beneficiary of an insurance policy, the proceeds of which are included in the construction fund, such fund shall be disbursed in the manner provided below for the reconstruction and repair of major damage. (ii) Association Maior Damage. If the amount of the estimated cost of reconstruction and repair which are the responsibility of the Association is more than $100,000, then the construction fund shall be disbursed in payment of such costs in the manner contemplated by subparagraph (i) above, but then only upon the further approval of an architect or engineer qualified to practice in Florida and employed by the Association to supervise the work. (iii) Unit Owners. If there is a balance of insurance proceeds after payment of all costs of reconstruction and repair that are the responsibility of the Association, this balance may be used by the Association to effect repairs to the Optional Property (if not insured or if under-insured), or may be distributed to Owners of the Optional Property who have .the responsibility for reconstruction and repair thereof. The distribution shall be in the proportion that the estimated cost of reconstruction and repair of such damage to each affected Unit bears to the total of such estimated costs to all affected Unit Owners, as determined by the Board; provided, however, that no Unit Owner shall be paid an amount in excess of the estimated costs of repair for his portion of the Optional Property. All proceeds must be used to effect repairs to the Optional Property, and if insufficient to complete such repairs, the Unit Owners shall DECLARATION OF CONDOMINIUM —39- pay the deficit with respect to their portion of the Optional Property and promptly effect the repairs. Any balance remaining after such repairs have been effected shall be distributed to the affected Unit Owners and their mortgagees jointly as elsewhere herein contemplated. (iv) Surplus. It shall be presumed that the first monies disbursed in payment of costs of reconstruction and repair shall be from insurance proceeds. If there is a balance in a construction fund after payment of all costs relating to the reconstruction and repair for which the fund is established, such balance shall be distributed to the beneficial owners of the fund in the manner elsewhere stated; except, however, that part of the distribution to an Owner which is not.in excess of Assessments and Charges paid by such Owner into the construction fund shall not be made payable jointly to any mortgagee. (v) Certificate. Notwithstanding the provisions herein, the Insurance Trustee shall not be required to determine whether or not sums paid by Unit Owners upon Assessments and Charges shall be deposited by the Association with the Insurance Trustee, or to determine whether the disbursements from the construction fund are to be made upon the order of the Association alone or upon the additional approval of an architect, engineer or otherwise, or whether a disbursement is to be made from the construction fund, or to determine whether surplus funds to be distributed are less than the Assessments and Charges paid by Owners, or to determine the payees or the amounts to be paid. 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 names of the payees and the amounts to be paid. 15.4 Assessments and Charges. If the proceeds of the insurance are not sufficient to defray the estimated costs of reconstruction and repair to be effected by the Association, or if at any time during reconstruction and repair, or upon completion of reconstruction and repair, the funds for the payment of the costs of reconstruction and repair are insufficient, Assessments or Charges shall be made against the Unit Owners in sufficient amounts to provide funds for the payment of such costs. Such Assessments on account of damage.to the Insured Property shall be in proportion to all of the Owners' respective shares in the Common Elements, and Charges on account of damage to the Optional Property, shall be in proportion to the cost of repairing the damage suffered by each Owner thereof, as determined by the Association. DECLARATION OF CONDOMINIUM -40- 15.5 Benefit of Mortgagees. Certain provisions in this Section 15 are for the benefit of mortgagees of Units and may be enforced by any of them. 16. Condemnation. 16.1 Deposit of Awards with Insurance Trustee. The taking of portions of the Condominium Property or Association Property by the exercise of the power of eminent domain 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 a failure to do so, in the discretion of the Board of Directors, a Special Charge shall be made against a defaulting Unit Owner in the amount of his award, or the amount of such award shall be set off against any sums hereafter made payable to that Owner. 16.2 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, a taking by eminent domain also shall be a casualty. 16.3 Disbursement of Funds. If the Condominium is terminated after condemnation, the proceeds of the awards and Special Assessments will be deemed to be insurance proceeds and shall be owned and distributed in the manner provided With respect to the ownership and distribution of 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 and the property damaged by the taking will be made usable 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 (if appointed) after a casualty, or as elsewhere in. this Section 16 specifically provided. 16.4 Unit Reduced but Habitable. If the taking reduces the size of a Unit and the remaining portion of the Unit can be made habitable (in the sole opinion of the Association), 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 made to the Condominium. (a) Restoration of Unit. The Unit shall be made habitable. If the cost of the restoration exceeds the amount of the award, the additional funds required shall be charged against the Owner of the Unit. (b) Distribution of Surplus. The balance of the award with respect to the Unit, 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 Unit Owner and such mortgagees. DECLARATION OF CONDOMINIUM -41- I (c) Adjustment of Shares in Common Elements. If the floor area of the Unit is reduced by the taking, the percentage representing the share in the Common Elements and of the Common Expenses and Common Surplus appurtenant to the Unit shall be reduced by multiplying the percentage of the applicable Unit prior to reduction by a fraction, the numerator of which shall be the area in square feet of the Unit after the taking and the denominator of which shall be the area in square feet of the Unit before the. taking. The shares of all Unit Owners in the Common Elements, Common Expenses and Common Surplus shall then be restated as follows: (i) add the total of all percentages of all Units after reduction as aforesaid (the"Remaining Percentage Balance"); and (ii) divide each percentage for each Unit after reduction as aforesaid by the Remaining Percentage Balance. The result for each Unit shall be the adjusted percentage for such Unit. 16.5 Unit Made Uninhabitable. If the taking is of the entire Unit or reduces the size of a Unit so that it cannot be made habitable (in the sole opinion of the Association), 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 made to the Condominium: (a) Payment of Award. The awards shall be paid first to the applicable Institutional First Mortgagees in amounts sufficient to pay off their mortgages in connection with each Unit which is not so habitable; second, to the Association for any due and unpaid Charges and Assessments; third, jointly to the affected Unit Owners and other mortgagees of their Units..In no event shall the total of such distributions with respect to a specific Unit exceed the market value of such Unit immediately prior to the taking. The balance, if any, shall be applied to repairing and replacing the Common Elements. Any awards attributable to more than one Unit shall be divided among the affected Unit Owners in proportion to the damage or impairment suffered by each such Unit Owner, as determined by the Association in its sole discretion. (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 a condition allowing, to the extent possible, 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 therefor shall exceed the balance of the fund from the award for the taking, such work shall be approved in the manner elsewhere required for capital improvements to the Common Elements. (c) Adiustment of Shares. The shares in the Common Elements, Common Expenses and Common Surplus appurtenant to the Units that continue as part of the Condominium shall be adjusted to distribute the shares in the Common Elements, Common Expenses and Common Surplus among DECLARATION OF CONDOMINIUM —42- I the reduced number of Unit Owners (and among reduced Units). This shall be effected by restating the shares of continuing Unit Owners as follows: (i) add the total of all percentages of all Units of continuing Unit Owners prior to this adjustment, but after any adjustments made necessary by subsection 16.4(c) hereof (the "Percentage Balance"); and (ii) divide the percentage of each Unit of a continuing Unit Owner prior to this adjustment, but after any adjustments made necessary by subsection 16.4(c) hereof, by the Percentage Balance. The result of such division for each Unit shall be the adjusted percentage for such Unit. (d) Assessments. If the balance of the award (after payments to the Unit Owners and such Owner's mortgagees as above provided) for the taking is not sufficient to alter the remaining portion of the Unit for use as a part of the Common Elements, the additional funds required for such 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 applicable percentage shares of those Unit Owners after all adjustments to such shares effected pursuant hereto by reason of the taking. (e) Arbitration. If the 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 of a dispute by any affected party, such 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. A judgment upon the decision rendered by the arbitrators may be entered in any court of competent jurisdiction in accordance with the Florida Arbitration Code. The cost of arbitration proceedings shall be assessed against all Units Owners, including, Owners who will not continue after the taking, in proportion to the applicable percentage shares of such Owners as they exist prior to the adjustments to such shares effected pursuant hereto by reason of taking. 16.6 Taking of Common Elements. Awards for the taking of Common Elements shall be used to render the remaining portion of the Common Elements usable in the manner approved by the Board of Directors; provided, that if the cost of such 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 capital improvements to the Common Elements. The balance of the awards for the DECLARATION OF CONDOMINIUM -_43- taking of Common Elements, if any, shall be distributed to the Unit Owners in the shares in which they own the Common Elements after adjustments to these shares effected pursuant hereto by reason of the taking. If there is a mortgage on a Unit, the distribution shall be paid jointly to the Unit Owner and the mortgagees of the Unit. 16.7 Amendment of Declaration. The changes in Units, in the Common Elements and in the ownership of the Common Elements and shares in the Common Expenses and Common Surplus that are effected by the taking shall be evidenced by an amendment to this Declaration of Condominium that is only required to be approved by, and executed upon the direction of, a majority of the Board of Directors. 17. Occupancy and Use Restrictions. In order to provide for congenial occupancy of the Condominium Property and for the protection of the values of the Units, the use of the Condominium Property shall be restricted to and shall be in accordance with the following provisions: 17.1 Occupancy and Use Restrictions. Except as otherwise herein expressly provided, each Residential Unit shall be used for residential purposes only. No business, profession or trade of any type shall be conducted on any portion of the Residential Units. This prohibition shall not be applicable to (a) the Commercial Units, which may be used for any lawful purpose, and may be used by the Owner(s) thereof and their guests, lessees, tenants and invitees; and (b) the Developer with respect to its development of the Condominium Property, its construction, repair, decorating, administration, sale rental or lease of Units, or its use of Units as models, V.I.P.or guest suites, or for sales offices or management services. Nothing herein shall be construed to prohibit ownership of a Unit by a domestic or foreign corporation or other entity. Occupancy in the Residential Units, except for temporary occupancy by visiting guests, shall not exceed two (2) persons per bedroom and one (1) person per den (as defined by the Condominium Association for the purpose of excluding from such definition living rooms, dining rooms, family rooms, country kitchens and the like). The provisions of this section shall not be applicable to Residential Units used by the Developer for model units, VIP suites, sales offices or management or other services. Unless otherwise determined by the Board of Directors of the Condominium Association, and except as otherwise provided in Section 17.2 of this Declaration of Condominium, a person(s) occupying a Residential Unit for more than one (1) month without the Unit Owner or a member of his family being present shall not be deemed a guest but, rather, shall be deemed a lessee for purposes of said section (regardless of whether a lease exists or rent is paid) and shall be subject to the provisions of this Declaration of Condominium which apply to lessees. The purpose of this paragraph is to prohibit the circumvention of the provisions and intent of this Declaration of Condominium pertaining to the approval of leases, and the Board of Directors of the Condominium Association shall enforce, and the Unit Owners shall comply with, this provision with due regard to such purpose. DECLARATION OF CONDOMINIUM --44- I 17.2 Leases. Leasing of Residential Units shall be subject to the prior written approval of the Condominium Association. Every lease of a Residential Unit shall specifically require a deposit from the prospective tenant in an amount not to exceed one (1) month's rent ("Deposit"), to be held in an escrow account maintained by the Condominium Association, provided, however, that the Deposit shall not be required for any Unit which is rented or leased directly by or to the Developer. No lease of a Residential Unit shall be for a term of less than three (3) months. In no event shall a Unit be leased more than six (6) times within any calendar year, regardless of the lease term. When a Residential Unit is leased, a tenant shall have all use rights in Association Property and those Common Elements otherwise readily available for use generally by the Residential Unit Owners, and the Owner(s) of the leased Residential Unit shall not have such rights, except as a guest, unless such rights are waived in writing by the tenant. Nothing herein shall interfere with the access rights of the Residential Unit Owner as a landlord pursuant to Chapter 83, Florida Statutes. The Condominium Association shall have the right to adopt rules to prohibit dual usage by a Residential Unit Owner and a tenant of Association Property and Common Elements otherwise readily available for use generally by Owners. Additionally, copies of all leases of Residential Units shall be submitted to the Condominium Association and the tenants thereunder must register with the Condominium Association prior to any occupancy. There are no leasing restrictions imposed upon the Commercial Units or any Residential Unit rented or leased directly by or to the Developer and all such Units may be leased on any terms that may be desired by the Commercial Unit Owner, or by the Developer, as applicable. Every lease shall provide (or, if it does not, shall be automatically deemed to provide) that a material condition of the lease shall be the tenant's full compliance with the covenants, terms, conditions and restrictions of the Declaration of Condominium (and all exhibits thereto), and with any and all rules and regulations adopted by the Condominium Association from time to time (before or after the execution of the lease). The Unit Owner will be jointly and severally liable with the tenant to the Condominium Association for any amount which is required by the Condominium Association to repair any damage to the Common Elements from the acts or omissions of tenants (as determined in the sole discretion of the Condominium Association) and to pay any claim for injury or damage to property caused by the negligence of the tenant and a Special Charge may be levied against the Unit therefore. All leases are hereby made subordinate to any lien filed by the Condominium Association, or of the Condominium Association, whether prior or subsequent to such lease. 17.3 Children. Children shall be permitted to reside in the Residential Units, subject to the provisions of Section 17.1 above, and applicable rules and regulations which may be adopted by the Association from time to time. 17.4 Pets. No more than two (2) household pets (as may be defined and re-defined by the Condominium Association) shall be maintained in any Residential Unit or any Limited Common Element appurtenant thereto. The maximum total weight of any such household pets shall be limited to an aggregate of sixty (60) pounds. DECLARATION OF CONDOMINIUM --45- I Notwithstanding the foregoing, the maximum total weight for any one household pet may not exceed forty (40) 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, 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. Residential 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 Section 19 of this 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 Residential Unit Owners (as provided in any applicable rules and regulations) and/or to require any pet to be permanently removed from the Condominium. This Section 17.4 shall not prohibit that it does not become a nuisance or annoyance to neighbors. 17.5 Use of Common Elements and Association Property. No portion of the Units, the Limited Common Elements, the Common Elements, or the Condominium shall be used for any purpose other than those reasonably suited for furnishing the services and facilities incident to the use of the Units. The Common Elements shall not be obstructed, littered, defaced, or misused in any manner. In no event shall any Unit Owner or occupant place, or permit the placement of, any item that obstructs, or otherwise impedes access to, any portions of the Condominium that are either designated or used as delivery and receiving areas. Nothing herein or elsewhere in the Declaration of Condominium or the Rules and Regulations shall prohibit or impede any Commercial Unit Owner from using any Limited Common Element(s) appurtenant to its Commercial Unit for any commercial services or other retail services provided such Commercial Unit Owner has obtained all necessary permits and approvals from the appropriate governmental authorities for such use. 17.6 Nuisances. No nuisances (as defined by the Condominium Association from time to time) shall be allowed on the Condominium or Association Property, nor shall any use, custom or practice be allowed which is a source of annoyance to occupants of Units or which interferes with the peaceful possession or proper use of the Condominium and/or Association Property by its residents, occupants or members. The Board of Directors shall have the right to determine if any equipment, fixture, improvement, materials or activity producing such noise or odor constitutes a nuisance. Notwithstanding the foregoing, no activity specifically permitted by the Declaration of Condominium, including, without limitation, activities or businesses conducted from the Commercial Units, shall be deemed a nuisance, regardless of any noise, odors or traffic emanating therefrom (except, however, to the extent that such noise, odors or traffic exceed the limits, if any, permitted by Applicable Law). By acquiring a Unit, each DECLARATION OF CONDOMINIUM -_46- I Owner shall be deemed to acknowledge and agree that: a) it is intended (without creating any obligation) that retail shops, offices and other commercial operations may be operated from any of the Commercial Units and that such operations may result in the creation of noise, music and odors which may affect other portions of the Condominium Property; b) that the Commercial Units may attract customers, patrons and/or other members of the public who are not members of the Condominium Association, resulting in additional traffic over and upon the Common Elements; and c) that any such matters or conditions shall not be deemed a nuisance hereunder and that neither the Developer, any Commercial Unit Owner, or any tenant of a Commercial Unit, shall be liable for any damages or other liability resulting therefrom. 17.7 Outside Items. No rubbish, garbage, refuse or trash shall be kept, stored or allowed to accumulate on any portion of the Condominium Property, except within designated trash receptacles. No linens, clothing, household fabrics, curtains, rugs, or laundry of any kind shall be hung, dried or aired from any windows, doors, balconies, terraces, or other portions of the Condominium. No articles shall be placed on balconies, patios or similar areas. The foregoing shall not prevent placing and using patio-type furniture, planters and other items in such areas if the same are normally and customarily used for a residential balcony, patio or terrace area. In the event of any doubt or dispute as to whether a particular item is permitted hereunder, the decision of the Board of Directors shall be final and dispositive. 17.8 Firearms. The discharge of firearms and fireworks within the Condominium is prohibited. The term "firearms" includes "B-B" guns, pellet guns, and other firearms of all types, regardless of size. 17.9 No Improper Uses. No improper, offensive, hazardous or unlawful use shall be made of the Condominium Property or any part thereof, and all valid laws, zoning ordinances and regulations of all governmental bodies having jurisdiction thereover shall be observed. Violations of laws, orders, rules, regulations or requirements of any governmental agency having jurisdiction thereover, relating to any portion of the Condominium Property, shall be corrected by, and at the sole expense of, the party obligated to maintain or repair such portion of the Condominium Property, as elsewhere herein set forth. Notwithstanding the foregoing and any provisions of this Declaration, the Articles of Incorporation or the By-Laws, the Association shall not be liable to any person(s) for its failure to enforce the provisions of this Section 17.9. No activity specifically permitted by this Declaration shall be deemed to be a violation of this section. 17.10 Alterations or Additions. No Owner of a Residential Unit shall cause or allow improvements or changes to the structure or exterior of any Residential Unit or Limited Common Elements, Common Elements or Association Property, or in any manner change the appearance of any portion of the exterior of the Building, without obtaining the prior written consent of the Condominium Association in the manner specified in Section 9.1 of this Declaration of Condominium. No spas, hot tubs, whirlpools or similar improvements shall be permitted on any patio or balcony. DECLARATION OF CONDOMINIUM _47- Anything to the contrary notwithstanding, the restrictions of this section shall not apply to Commercial Units.Additionally, each Commercial Unit Owner shall have the right, without the consent or approval of the Condominium Association; or any other Unit Owner or other party, other than the applicable governmental authorities, if and to the extent such approvals are required, to make alterations, additions or improvements, structural and non-structural, interior or exterior, ordinary or extraordinary, in, to and upon any Commercial Unit owned by it and any Limited Common Element terraces, patios, lanais, decks or other areas appurtenant thereto, including without limitation, the removal of walls, floors, decorative ceilings and other portions thereof, the installation or placement of signage, equipment, furniture, tables, chairs and other furnishings or equipment on any patios and/or terraces appurtenant thereto. The Owner of the Commercial Unit to which any such additions, alterations or improvements have been made, and its successors and assigns, shall indemnify, defend and hold harmless the Condominium Association, the Developer and all other Unit Owners from any and all claims, losses, damages and expenses arising from such alterations, additions or improvements, and shall be solely responsible for the maintenance, repair and insurance thereof. Notwithstanding the foregoing, any additions, alterations or improvements must comply with all applicable. governmental codes,. ordinances and other requirements. 17.11 Sound, Weight and Flooring Restrictions. Except for the installation of any hard and/or heavy surface floor coverings, such as tile, marble, wood, and the like, in the bathrooms, kitchens and foyers of the Residential Units or in any portion of the Commercial Units, the installation of such hard and/or heavy surface floor coverings other than as installed by the Developer shall be subject to (a) approval in writing by the Board of Directors, (b) meet applicable structural and sound insulation requirements, and (c) be compatible with the overall structural design of the Building. Additionally, the installation in any Residential Unit of any improvement or heavy object must be approved by the Board of Directors and must be compatible with the overall structural design of the Building. In no event shall any heavy object, which would exceed a live load limit of 50 pounds per square foot, be placed in any Residential Unit. The Board of Directors may require a structural engineer to review certain of the proposed improvements, with such review to be at the Owner's sole expense. Additionally, the Board may require Unit Owners to furnish it with certifications of the floor assembly Impact Isolation Class rating from the installers of such surfaces. The color and exact materials to be used on balcony floor coverings must also be approved in writing by the Board of Directors. Any use guidelines set forth by the Condominium Association shall be consistent with good design practices for the waterproofing and overall structural design of the Building. Owners will be held strictly liable for violations of these restrictions and for all damages resulting therefrom and the Condominium Association has the right to require immediate removal of violations. Applicable warranties of the Developer, if any, shall be voided by violations of these restrictions and requirements. A waterproofing system is to be placed on the concrete surface of the balcony prior to the installation of the setting bed and tile. This waterproofing system must be as recommended by the manufacturer of the the setting material and the installation must follow the waterproofing manufacturer's written recommendations. Each Owner DECLARATION OF CONDOMINIUM _48- I acknowledges that sound transmission in a building such as the Condominium is very difficult to control, and that noises from adjoining or nearby Units and/or mechanical equipment can often be heard in another Unit. The Developer does not make any representation or warranty as to the level of sound transmission between and among Units and the other portions of the Condominium Property, and each Owner shall be deemed to waive and expressly release any such warranty and claim for loss or damages resulting from sound transmission. 17.12 Exterior Improvements. Without limiting the generality of Section 9.1 of this Declaration of Condominium specifically permitting same, including (without limitation) the exemption of the Commercial Units in this Section 17.12 of this Declaration of Condominium, no Unit Residential Unit Owner shall cause anything to be affixed or attached to, hung, displayed or placed on the exterior walls, doors, balconies or windows of the Residential Units or the Limited Common Elements appurtenant thereto (including, but not limited to, awnings, canopies, shutters, window coverings, signs, screens, window tinting, fixtures and equipment), without the prior written consent of the Condominium Association. No painting or changes in the exterior colors of any Residential Units or the Limited Common Elements shall be permitted. 17.13 Signs. No sign, poster, display, billboard or other advertising devices of any kind including, without limitation, "FOR SALE", "FOR RENT", security services or construction signs shall be displayed to the public view on any portion of the Residential Units, and the Limited Common Elements appurtenant thereto or Common Elements, without the prior written consent of the Condominium Association, except, (a) signs, regardless of size, used by the Developer, its successors or assigns, including signs for construction or repairs, advertising, marketing, promotion, sale, leasing, and rental activities, (b) and bulletin boards, entrance, directional, informational and similar signs used by the Condominium Association. Notwithstanding anything to the contrary in this Declaration, the Owners of the Commercial Units may affix or attach lighted or unlighted signs on the exterior walls, doors, adjacent terraces, patios, lanais and/or windows of the Building (whether same are a part of the Commercial Unit, the Limited Common Elements appurtenant thereto, or the Common Elements) adjacent to the Owner's Commercial Unit, or to the windows of the applicable Commercial Unit, without receiving the consent of the Condominium Association, the Board or any other party (other than any applicable governmental authority to the extent that prior approval from them is required by applicable governmental codes, ordinances and/or regulations). 17.14 Liphtin4. All exterior lights and exterior electrical outlets in the Residential Units and the Limited Common Elements appurtenant thereto must be approved in accordance with Section 9 of this Declaration of Condominium. 17.15 Exterior Sculpture and Similar Items. Exterior sculpture, flags, and similar items in the Residential Units and the Limited Common Elements appurtenant thereto must be approved in accordance with Section 9 of this Declaration. Notwithstanding the foregoing, any Unit Owner may respectfully display one (1) portable, removable American flag, and, on Armed Forces Day, Memorial Day, DECLARATION OF CONDOMINIUM _49- I Flag Day, Independence Day, and Veterans Day, any Unit Owner may respectfully display portable, removable official flags, not larger than four and one-half feet by six feet (4'6" x 6') that represent the United States Army, Navy, Air Force, Marine Corps, or Coast Guard. 17.16 Air Conditioning Units. No window or wall mounted air conditioning units may be installed in any Unit. Units with large amounts of outdoor glass windows and doors are susceptible to large temperature fluctuations, based upon the location of the various rooms within the Unit, as well as the differing positions of the sun throughout the day and the differing weather conditions throughout the year. The normal operations of the air conditioning systems in the Units may not fully compensate for these temperature fluctuations and additional adjustments, through the use of indoor window treatments such as curtains and blinds, may be necessary. 17.17 Outside Installations. No radio station or short-wave operations of any kind shall operate from any Residential Unit, the Limited Common Elements appurtenant thereto or Common Elements. Except to the extent permitted under Applicable Law, no exterior satellite dish, or other transmitting or receiving apparatus, radio antenna, television antenna or other antenna of any type shall be erected or maintained on the Common Elements, Limited Common Elements, or Residential Units, without the prior written consent of the Condominium Association. Notwithstanding the foregoing, upon obtaining the prior written consent of the Condominium Association, satellite dishes, and other devices permitted under Applicable Law, may be installed within the Residential Units or within any Limited Common Elements appurtenant thereto, provided, however, that in no event shall any such device be installed in or on any other portion of the Condominium Property. To the extent permissible under Applicable Law, the Condominium Association may enact Rules and Regulations, requiring that any such devices which may be permitted under Applicable Law are comparable in size, weight and appearance, are installed and maintained in a manner designed to protect the safety of the Building and its occupants and satisfy any standards established by the Condominium Association for architectural appearance purposes. 17.18 Window and Door Treatments. No reflective film, tinting or window coverings shall be installed on any windows or glass doors in any Residential Unit, except as necessary to replace or restore tinting of glass surfaces as originally installed, unless approved by the Condominium Association in accordance with Section 9 of this Declaration of Condominium. Curtains, drapes and other window coverings (including their linings) in Residential Units, which face on exterior windows or glass doors, or are visible from the exterior of the Building, shall be white or off-white in color, unless otherwise specifically approved by the Board of Directors. No aluminum foil may be placed in any window or glass door of a Residential Unit and no reflective substance may be placed on any glass in a Residential Unit, except for any substance previously approved by the Board of Directors for energy conservation or hurricane protection purposes. No unsightly materials may be placed on any window or glass door or shall be visible through such window or glass door. Any screen door must be of a uniform type approved DECLARATION OF CONDOMINIUM _50- by the Condominium Association. The restrictions set forth herein shall not apply to the Commercial Units. 17.19 Parking and Vehicle Restrictions. No person shall park any vehicle so as to obstruct or otherwise impede ingress or egress to any parking spaces, including without limitation, to a parking space assigned to any other Unit. Parking in the Condominium shall be restricted to private automobiles and passenger-type vans, jeeps and pick-up trucks and sport utility vehicles, motorcycles, motor scooters as well as vans, trucks or other commercial vehicles used by the Owners or occupants of the Commercial Units to deliver, cater or otherwise provide services or inventory to such Commercial Unit (all of which are collectively referred to herein as "vehicles"). Except as otherwise permitted in this section no person shall park, store or keep on any portion of the Condominium any large type commercial type vehicle (for example, dump truck, motor home, trailer, cement mixer truck, oil or gas truck, delivery truck), except temporarily in designated guest parking locations or delivery locations, nor may any person keep any other vehicle in the Condominium which is deemed to be a nuisance by the Board. No trailer, camper, motor home or recreational vehicle shall be used as a residence, either temporarily or permanently, or parked in the Condominium. The Condominium Association shall have the authority to prohibit any vehicle, including any motorcycle or motor scooter, which it determines constitutes a nuisance due to its noise level, particularly where such vehicle is operated in the early morning or late evening hours. No vehicle is permitted within the Condominium 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 Condominium. No more than one (1) motorcycle or motor scooter may be parked in a single space, and in no event may a motorcycle or a motor scooter be parked in the same parking space as another vehicle or between any parking spaces. For so ilong as the Developer conducts any sales or leasing activities within the Condominium or for so long as any Commercial Unit exists as part of the Condominium their use of parking spaces shall not be impeded or restricted. 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 Condominium Association, or its management companies. Subject to Applicable Law, any vehicle, boat, motorcycle or trailer parked in violation of these or other restrictions contained herein or in the rules and regulations may be towed by the Condominium Association at the sole expense of the owner of such vehicle. The Condominium 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. No Owner or occupant of a Unit shall park more than an aggregate total of three vehicles on the Condominium Property. 17.20 Unit Maintenance. Each Unit Owner must undertake or must designate a responsible firm or individual to undertake his general maintenance DECLARATION OF CONDOMINIUM —51- responsibilities, which responsibilities. shall include, at a minimum, maintaining the exterior appearance of the Unit and the Limited Common Elements appurtenant thereto, safeguarding the Unit and the Limited Common Elements to prepare for hurricane or tropical storm watches and warnings by, among other things, removing any unfixed items on balconies and terraces, and repairing the Unit and the Limited Common Elements in the event of any damage therefrom. An Owner may designate a firm or individual to perform such functions for the Owner, but such designation shall not relieve the Owner of any responsibility hereunder. The name(s) and addresses of such firm or individual must be furnished to the Condominium Association. The designation of such firm or individual shall be subject to the approval of the Condominium Association. 17.21 Hazardous Substances. No flammable, combustible or explosive fluids, chemicals or other substances may be kept in any Residential Unit, Limited Common Elements appurtenant thereto or Common Elements, except such as are generally used for normal household purposes. No electric, gas, charcoal barbecue or other cooking devices, or outside cooking, is permitted on any patio or balcony. Without limiting the generality of the foregoing, such prohibitions shall not apply to the Commercial Units that utilize such hazardous substances in the ordinary course of business provided however, the Owners or occupants of such Commercial Units has obtained all requisite governmental approvals. 17.22 Mold Prevention. No Owner of a Residential Unit shall install, within such Unit, its Limited Common Elements appurtenant thereto or upon the Common Elements and/or Association Property, non-breathable wall-coverings or low-permeance paints. Additionally, any and all built-in casework, furniture, and or shelving within a Residential 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. Further, all Owners of Residential Units, whether or not occupying such Unit, shall continuously run the air conditioning system to minimize humidity in the Unit. While the foregoing is intended to minimize the potential development of mold and other microtoxins, the Developer does not make any representations or warranties regarding the existence or development of molds or microtoxins 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 molds, mildew, spores, fungi and/or other microtoxins. 17.23 Hurricane Protection. No type of hurricane protection may be installed in or around the Residential Units and the Limited Common Elements appurtenant thereto. Notwithstanding the foregoing, if and to the extent that the Act gives Unit Owners the right to install hurricane shutters, any proposed hurricane shutters or other hurricane protection shall be approved by the Condominium Association, and shall be installed or affixed in a manner approved by the Condominium Association. All hurricane shutters and similar equipment shall be kept in an open position except during periods of hurricane or tropical storm watches or warnings. Upon issuance of an official hurricane warning, each Residential Unit Owner shall take all actions necessary to prepare his/her Unit for any such hurricane, which shall include (i) removing all objects from balconies and terraces which will not be secured or otherwise protected, and (ii) complying with all rules and DECLARATION OF CONDOMINIUM —52- I regulations which may have been adopted by the Condominium Association from time to time. No hurricane or storm shutters or other hurricane protection shall be permanently installed on any structure in a Residential Unit, the Limited Common Elements appurtenant thereto or Common Elements, unless first approved in accordance with Section 9 of the Declaration of Condominium. 17.24 Play Equipment, Strollers, Etc. Bicycles, tricycles, scooters, skateboards, and other play equipment, baby strollers and similar items shall not at any time be left in the hallways or other Common Elements or in the Limited Common Elements (including balconies, terraces and patios). 17.25 Insurance Rates. Nothing shall be done or kept in the Common Elements or within the Units or the Limited Common Elements which will increase the rate of insurance on any property insured by the Association without the approval of the Board, nor shall anything be done or kept in the Units, or on the Limited Common Elements or Common Elements, which would result in the cancellation of insurance on any property insured by the Association or which would be in violation of any law. 17.26 Association Access to Residential Units. In order to facilitate access to the Residential Units by the Condominium Association for the purposes enumerated in Section 11.1 of this Declaration of Condominium, it shall be the responsibility of all Residential Unit Owners to deliver a set of keys to their Residential Unit to the Condominium Association to use in the performance of its functions. No Owner shall change the locks to its Residential Unit without so notifying the Condominium Association and delivering to the Condominium Association a new set of keys to such Residential Unit. 17.27 Use of Residential Limited Common Elements. In order to preserve the community and congenial values of the Residential Units, neither the Owners of Commercial Units nor their tenants, occupants, guests and/or invitees shall be permitted to use the Residential Limited Common Elements. Nothing herein shall prohibit the Owners of Commercial Units or their tenants from using any other commonly used facilities in the Condominium including, without limitation, the Parking Areas. 17.28 Documents. Each Owner shall be obligated to deliver the documents received from the Developer, or from any prior Owner, containing this Declaration and any other declarations and documents, and any modifications. thereto, to any purchaser or grantee of their Unit. Notwithstanding the foregoing, in the event of loss or damage to the documents they may be obtained from the Association upon payment of the actual cost for preparing and furnishing the documents to any Owner requesting them. 17.29 Rules and Regulations. As provided in the By-Laws, the Board of Directors may adopt rules and regulations applicable to all portions of the Condominium Property other than the property owned by the Declarant. In the event that such rules or regulations are adopted, they may be enforced in the same manner as the restrictions set forth in this section and may be modified, added to or DECLARATION OF CONDOMINIUM —53- revoked, in whole or in part, by the Board of Directors, and as provided in the By- Laws. 1.7.30 Effect on Developer and Commercial Unit Owners. The restrictions and limitations set forth in this Section 17 shall not apply to the Developer or to Units owned by the Developer, except that the Developer shall be subject to the requirement that prior written approval of the Condominium Association be obtained for leases of Residential Units set forth in Section17.2 and to the pet restrictions set forth in Section 17.4. The Developer shall also be subject to any restrictions on the type of vehicles allowed to park on the Condominium set forth in Section17.19; however, the Developer and its designees shall be exempt from any such restrictions if the vehicle is engaged in any activity relating to construction, maintenance or marketing of Units. In enforcing its rights hereunder, the Developer shall also be entitled to bring an action and recover sums due for damages, injunctive relief, or any combination thereof, and the Developer shall be entitled to recover all legal fees and expenses incurred in connection with any such action. _Without limiting the generality,of the foregoing, the provisions of this Section 17 shall not be amended, altered, or modified in any manner affecting the Commercial Units by any amendment to this Declaration, rule, regulation or otherwise, without the consent of at least 80% of all voting interests in,the Condominium. 18. Selling and Mortgaging of Units. No Unit Owner other than the Developer may sell their Unit, except by complying with the following provisions: 18.1 Right of First Refusal. Any Unit Owner who receives a bona fide offer to purchase a Unit (such offer to purchase a Unit is called an "Outside Offer", the party making any such Outside Offer is called an "Outside Offeror", and the Unit Owner to whom the Outside Offer is made is called an "Offeree Unit Owner"), which he intends to accept shall give notice by certified and/or registered mail to the Board of Directors of the receipt of such Outside Offer. Said notice shall also state the name and address of the Outside Offeror, the terms of the proposed transaction and such other information as the Board of Directors may reasonably require and shall be accompanied by a check in the amount of $100.00 (or such greater amount as may be required by the Association and permitted by the Act) representing a screening fee. The giving of such notice to the Board of Directors shall constitute an offer by such Unit Owner to sell his Unit to the Association or to its designee upon the same terms and conditions as contained in such Outside Offer and shall also constitute a warranty and representation to the Association by the Unit Owner who has received such Outside Offer that such Unit Owner believes the Outside Offer to be bona fide in all respects. The Offeree Unit Owner shall submit in writing such further information with respect thereto as the Board of Directors may reasonably request. Not later than twenty (20) days after receipt of such notice, together with such further information as may have been requested, the Association or its designee may elect, by sending written notice to such Offeree Unit Owner before the expiration of said twenty (20) day period, by certified and/or registered mail, to purchase such Unit upon the same terms and DECLARATION OF CONDOMINIUM —54- conditions as contained in the Outside Offer and as stated in the notice from the Offeree Unit Owner. In the event the Association shall timely elect to purchase such Unit or to cause the same to be purchased by its designee, title shall close at the office of the attorneys for the Association, in accordance with the terms of the Outside Offer, within twenty (20) days after the giving of notice by the Association of its election to accept such offer. If, pursuant to such Outside Offer, the Outside Offeror was to assume or take title to the Unit subject to the Offeree Unit Owner's existing mortgage or mortgages, the Association may purchase the Unit and assume or take title to the Unit subject to said existing mortgage or mortgages, as the case may be. At the closing, the Offeree Unit Owner shall convey the same to the Association, or to its designee, by statutory warranty deed, with all tax and/or documentary stamps affixed at the expense of such Unit Owner, who shall also pay all other taxes arising out of such sale. Title shall be good and marketable and insurable and the Offeree Unit Owner shall deliver an abstract or provide a title binder (and subsequently, title insurance) at its expense at least thirty (30) days prior to such. closing. Real estate taxes, mortgage interest, if any, and Assessments shall be apportioned between the Offeree Unit Owner and the Association, or its designee, as of the closing date. In the event the Association or its designee shall fail to accept such offer in the manner required under this section, within twenty (20) days after receipt of notice and all additional information requested, as aforesaid, the Offeree Unit Owner shall be free to accept the Outside Offer within thirty (30) days after (i) notice of refusal is given by the Association, or (ii) the expiration of the period in which the Association or its designee might have accepted such offer, as the case may be. In the event the Offeree Unit Owner shall not, within such thirty (30) day period, accept, in writing, the Outside Offer or if the Offeree Unit Owner shall accept the Outside Offer within such thirty (30) day period, but such sale shall not be consummated in accordance with the terms of such Outside Offer or within a reasonable time after the date set for closing thereunder, then, should such Offeree Unit Owner thereafter elect to sell such Unit, as the case may be, the Offeree Unit Owner shall be required to again comply with all of the terms and provisions of this section. Any deed to an Outside Offeror shall automatically be deemed to provide that the acceptance thereof by the grantee shall constitute an assumption of the provisions of the Declaration, the By-Laws, the Articles of Incorporation, applicable rules and regulations, and all other agreements, documents or instruments affecting the Condominium Property. Any purported sale of a Unit in violation of this section shall be voidable at any time at the election of the Association and if the Board of Directors shall so elect, the Unit Owner shall be deemed to have authorized and empowered the Association to institute legal proceedings to evict the purported tenant (in case of an unauthorized leasing), or to void the conveyance (in case of an unauthorized sale). Said Unit Owner shall reimburse the Association for all expenses (including attorneys' fees and disbursements) incurred in connection with such proceedings. DECLARATION OF CONDOMINIUM _55- I The foregoing restrictions regarding sales of Units shall not apply to Units sold by or to the Developer or by or to any Institutional First Mortgagee acquiring title by foreclosure or by a deed in lieu of foreclosure or in satisfaction of debt. The Developer and such Institutional First Mortgagees shall have the right to sell Units they own, without having to first offer the same for sale (as to Institutional First Mortgagees only) to the Association. Notwithstanding anything herein contained to the contrary, the Board of Directors, in exercising its rights as provided in this Section 18.1, shall not make any decision in a discriminatory manner, and no decision shall be made on the basis of race, gender, religion, national origin or physical or mental handicap. 18.2 Consent of Unit Owners to the Purchase of Units by the Association. The Association shall not exercise any option hereinabove set forth to purchase any Unit without the prior approval of Owners of a majority of the Units present in person or by proxy and voting at a meeting at which a quorum has been obtained. 18.3 No Severance of Ownership. No part of the Limited Common Elements or Common Elements may be sold, conveyed or otherwise disposed of, except as an appurtenance to the Unit in connection with a sale, conveyance or other disposition of the Unit to which such interest is appurtenant, and any sale, conveyance or other disposition of a Unit shall be deemed to include that Unit's appurtenant interest in the Limited Common Elements and Common Elements whether or not explicitly stated. 18.4 Release by the Association of the Right of First Refusal. The right of first refusal contained in Section 18.1 may be released or waived by the Association only in the manner provided in Section 18.5. In the event the Association shall release or waive its right of first refusal as to any Unit, such Unit may be sold and conveyed free and clear of the provisions of Section 18.1. 18.5 Certificate of Termination of Right of First Refusal. A certificate executed and acknowledged by an officer of the Association stating that the provisions of Section 18.1 have been satisfied by a Unit Owner, or stating that the right of first refusal contained therein has been duly released or waived by the Association, and that, as a result thereof, the rights of the Association thereunder have terminated, shall be conclusive with respect to all persons who rely on such certificate in good faith. The Board of Directors shall promptly furnish such certificate upon request to any Unit Owner with respect to whom the provisions of such section have, in fact, terminated or been waived. No fee shall be charged by the Association in connection with the furnishing of such certificate in excess of the charges reasonably required for same, and such charges shall not exceed the maximum amount allowed under the Act. 18.6 Financing of Purchase of Units by the Association. The purchase of any Unit by the Association shall be made on behalf of all Unit Owners. If the available funds of the Association are insufficient to effectuate any such purchase, the Board of Directors may levy an Assessment against each Unit Owner (other than the Offeree Unit Owner), in proportion to his share of the Common Expenses, and/or DECLARATION OF CONDOMINIUM -_56- the Board of Directors may, in its discretion, finance the acquisition of such Unit; provided, however, that no such financing may be secured by an encumbrance. or hypothecation of any portion of the Condominium Property other than the Unit to be purchased. 18.7 Exceptions. The provisions of Section 18.1 shall not apply with respect to any sale or conveyance of any Unit by: (a) the Unit Owner thereof to his spouse, adult children, parents, (parents-in-law,. adult siblings or a trust, corporation or other entity where the Unit Owner or the aforementioned related persons are and continue to be the sole beneficiary or equity owner of such trust, corporation or other entity, or to any one or more of the above; (b) the Developer; (c) the Association; (d) any proper officer conducting the sale of a Unit in connection with the foreclosure of a mortgage or other lien covering such Unit or the delivery of a deed in lieu of foreclosure; or (e) to an Institutional First Mortgagee (or its designee) deriving title by virtue of foreclosure of its mortgage or acceptance of a deed in lieu of foreclosure or in satisfaction of debt; provided, however, that each succeeding Unit Owner shall be bound by, and his Unit subject to, the provisions of this Section 18. The Association shall be given prior written notice of any such conveyance or transfer, including the name and address of the intended grantee. The provisions of Section 18.1 shall not apply with respect to any sale or conveyance of a Commercial Unit.. 18.8. . Gifts and Devises, etc. Any Unit Owner shall be free to convey or transfer his Unit by gift, to devise his Unit by will, or to have his Unit pass by intestacy, without restriction; provided, however, that each succeeding Unit Owner shall be bound by, and his Unit subject to, the provisions of this Section 18 The Association shall be given prompt written notice of any such conveyance or transfer, including the name and-address of the intended grantee. 18.9 Mortgage of Units. Each Unit Owner shall have the right to mortgage his Unit without restriction. 19. Compliance and Default. The Association, each Unit Owner, occupant of a Unit, tenant, guest and other invitee of a Unit Owner, shall be governed by and shall comply with the terms of this Declaration and all exhibits annexed hereto, and the rules.and regulations adopted pursuant to those documents, as the same may be amended from time to time, and the provisions of all of such documents shall be deemed incorporated into any lease of a Unit whether or not expressly stated in such lease. The Association (and Unit Owners, if appropriate) shall be entitled to the following relief in addition to the remedies provided by the Act: 19.1 Mandatory Nonbinding Arbitration and Mediation of Disputes. Prior to the institution of court litigation, a party to a Dispute shall petition the Bureau for nonbinding arbitration. The petition must be accompanied by a filing fee in the amount of$50. Filing fees collected under this section must be used to defray the expenses of the alternative dispute resolution program. The petition must recite, and have attached thereto, supporting proof that the petitioner gave the respondents: DECLARATION OF CONDOMINIUM -_57- I (1) Advance written notice of the specific nature of the Dispute; (2) A demand for relief, and a reasonable opportunity to comply or to provide the relief; and (3) Notice of the intention to file an arbitration petition or other legal action in the absence of a resolution of the Dispute. Failure to include the allegations or proof of compliance with these prerequisites requires dismissal of the petition without prejudice. Upon receipt, the petition shall be promptly reviewed by the Bureau to determine the existence of a dispute and compliance with the requirements of paragraph (a) and (b). If emergency relief is required and is not available through arbitration, a motion to stay the arbitration may be filed. The motion must be accompanied by a verified petition alleging facts that, if proven, would support entry of a temporary injunction, and if an appropriate motion and supporting papers are filed, the Bureau may abate the arbitration pending a court hearing and disposition of a motion for temporary injunction. Upon determination from the Bureau that a Dispute exists and that the petition substantially meets the requirements of paragraphs (a) and (b) and any other applicable rules, a copy of the petition shall forthwith be served by the Bureau upon all respondents. Either before or after the filing of the respondents' answer to the petition, any party may request that the arbitrator refer the case to mediation under this section and any rules adopted by the Bureau. Upon receipt of a request for mediation, the Bureau shall promptly contact the parties to determine if there is agreement that mediation would be appropriate. If all parties agree, the Dispute must be referred to mediation. Notwithstanding a lack of an agreement by all parties, the arbitrator may refer a Dispute to mediation at any time. Upon referral of a case to mediation, the parties must select a mutually acceptable mediator. To assist in the selection, the arbitrator shall provide the parties with a list of both volunteer and paid mediators that have been certified by the Bureau under Section 718.501. If the parties are unable to agree on a mediator within the time allowed by the arbitrator, the arbitrator shall appoint a . mediator from a list of certified mediators. If a case is referred to mediation, the parties shall attend a mediation conference, as scheduled by the parties and the mediator. If any party fails to attend a duly noted mediation conference, without permission or approval of the arbitrator or mediator, the arbitrator must impose sanctions against the party, including the striking of any pleading filed, the entry of an order of dismissal or default if appropriate, and the award of costs and attorney's fees incurred by the other parties. Unless otherwise agreed to by the parties or as provided by order of the arbitrator, a party is deemed to have appeared at a mediation conference by the physical presence of the party or its representative having full authority to settle without further consultation, provided that the Association may comply by having one or more representatives present with full authority to negotiate a settlement and recommend that the board ratify DECLARATION OF CONDOMINIUM —58- and approve such a settlement within five (5) days from the date of the mediation conference. The parties shall share equally the expense of mediation, unless otherwise agreed. The purpose of mediation as provided for by this section is to present the parties with an opportunity to resolve the underlying dispute in good faith, and with a minimum expenditure of time and resources. Mediation proceedings must generally be conducted in accordance with Florida Rules of Civil Procedure, and these proceedings are privileged and confidential to the same extent as court-ordered mediation. Persons who are not parties to the dispute are not allowed to attend the mediation conference without the consent of all parties, with the exception of counsel for the parties and corporate representatives designated to appear for a party. If the mediator declares an impasse after a mediation conference has been held, the arbitration proceeding terminates, unless all parties agree in writing to continue the arbitration proceeding, in which case the arbitrator's decision shall be either binding or nonbinding, as agreed upon by the parties; in the arbitration proceeding, the arbitrator shall not consider any evidence relating to the unsuccessful mediation except in a proceeding to impose sanctions for failure to appear at a mediation conference. If the parties do not agree to continue arbitration, the arbitrator shall enter an order of dismissal, and either party may institute a suit in a court of competent jurisdiction. The parties may seek to recover any costs and attorney's fees that may be recovered by the prevailing party in any subsequent litigation. The arbitration shall be conducted according to rules promulgated by the Bureau. The filing of a petition for arbitration shall toll the applicable statute of limitations. At the request of any party to the arbitration, such arbitrator shall issue subpoenas for the attendance of witnesses and the production of books, records, documents, and other evidence and any party on whose behalf a subpoena is issued may apply to the court for orders compelling such attendance and production. Subpoenas shall be served and shall be enforceable in the manner provided by the Florida Rules of Civil Procedure. Discovery may, in the discretion of the arbitrator, be permitted in the manner provided by the Florida Rules of Civil Procedure. Rules adopted by the Bureau may authorize any reasonable sanctions except contempt for a violation of the arbitration procedural rules of the Bureau or for failure of a party to comply with a.reasonable non-final order issued by an arbitrator which is not under judicial review. The arbitration decision shall be presented to the parties in writing. An arbitration decision is final in those Disputes in which the parties have agreed to be bound. An arbitration decision is also final if a complaint for trial de novo is not filed in a court of competent jurisdiction in the County within thirty (30) days. The right to file for a trial de novo entitles the parties to file a complaint in the appropriate trial court for a judicial resolution of dispute. The prevailing party in the arbitration proceeding shall be awarded the costs of the arbitration and reasonable attorneys' fees in an amount determined by the arbitrator. Such an award shall include the costs and reasonable attorney's fees incurred in the arbitration proceeding as well as the costs and reasonable attorney's fees incurred in preparing for and attending any scheduled mediation. The party who files a DECLARATION OF CONDOMINIUM _59- I complaint for a trial de novo shall be assessed the other party's arbitration costs, court costs and other reasonable costs, including, attorney's fees, investigation expenses and expenses for expert or other testimony or evidence incurred after the arbitration decision if the judgment upon the trial de novo is not more favorable than the arbitration decision. If the judgment is more favorable, the party who filed a complaint for trial de novo shall be awarded reasonable court costs and attorney's fees. Any party to an arbitration proceeding may enforce an arbitration award by filing a petition in a court of competent jurisdiction in the County. A petition may not be granted unless the time for appeal by the filing of a complaint for a trial de novo has expired. If a complaint for a trial de novo has been filed, a petition may not be granted with respect to an arbitration award that has been stayed. If the petition for enforcement is granted, the petitioner shall recover reasonable attorney's fees and costs incurred in enforcing the arbitration award. A mediation settlement may also be enforced through the county or circuit court, as applicable, and any costs and fees incurred in the enforcement of a settlement agreement reached at mediation must be awarded to the prevailing party in any enforcement action. 19.2 Negligence and Compliance. A Unit Owner and/or lessee of a Unit shall be liable for the expense of any maintenance, repair or replacement made necessary by his negligence or by that of any member of his family or his or their guests, employees, agents or lessees, but only to the extent such expense is not met by the proceeds of insurance actually collected by the Association with respect to such negligence. In the event a Unit Owner, tenant or occupant fails to maintain a Unit or fails to cause such Unit to be maintained, or fails to observe and perform all of the provisions of the Declaration, the By-Laws, the Articles of Incorporation, applicable rules and regulations, or any other agreement, document or instrument affecting the Condominium Property or administered by the Association, in the manner required, the Association shall have the right to proceed in a court of equity to require performance and/or compliance, to impose any applicable fines, to sue in a court of law for damages, and to impose a Charge on the Unit Owner for the sums necessary to do whatever work is required to put the Unit Owner or Unit in compliance. In any proceeding arising because of an alleged failure of a Unit Owner, a tenant or the Association to comply with the requirements of the Act, this Declaration, the exhibits annexed hereto, or the rules and regulations adopted pursuant to said documents, as the same may be amended from time to time, the prevailing party shall be entitled to recover the costs of the proceeding and such reasonable attorneys' fees (including appellate attorneys' fees). A Unit Owner prevailing in an action with the Association, in addition to recovering his reasonable attorneys' fees, may recover additional amounts as determined by the court to be necessary to reimburse the Unit Owner for his share of Assessments levied by the Association to fund its expenses of the litigation. 20. Termination of Condominium. The Condominium shall continue until (i) terminated by casualty loss, condemnation or eminent domain, as more particularly provided in this Declaration, or (ii) such time as withdrawal of the Condominium Property from the provisions of the Act is authorized by a vote of Owners owning at least 80% of the DECLARATION OF CONDOMINIUM -60- I applicable interests in the Common Elements and by the Primary Institutional First Mortgagee. In the event such withdrawal is authorized as aforesaid, the Condominium Property shall be subject to an action for partition by any Unit Owner, mortgagee or lienor, as if owned in common, in which event the net proceeds of sale shall be divided among all Unit Owners in proportion to their respective interests in the Common Elements, or, if authorized by a vote of a majority of the Unit Owners, in proportion to the appraised value of each Unit as determined by an appraisal to be obtained by the Board. No payment shall be made to a Unit Owner until there has first been paid off out of his share of such net proceeds all mortgages and liens on his Unit in the order of their priority. The termination of the Condominium, as aforesaid, shall be evidenced by a certificate of the Association executed by its President and Secretary, certifying as to the basis of the termination and said certificate shall be recorded among the public records of the County. Upon recordation of such certificate, the Association within 30 business days shall notify the Bureau of the termination and the date the document was recorded, the county where the document was recorded, and the book and page number of the public records where the document was recorded, and shall provide the Bureau a copy of the recorded termination notice certified by the clerk. This section may only be amended with the prior written consent of the Primary Institutional First Mortgagee, which shall not be unreasonably withheld. 21. Additional Rights of Mortgagees and Others. 21.1 Availability of Association Documents. The Association shall have current and updated copies of the following available for inspection by Institutional First Mortgagees during normal business hours or under other reasonable circumstances as determined by the Board: (a) this Declaration; (b) the Articles; (c) the By-Laws; (d) the rules and regulations of the Association; and (e) the books, records and financial statements of the Association. 21.2 Amendments. No amendment may change the configuration or size of any Unit in any material fashion, materially alter or modify the appurtenances to the Unit, change the proportion or percentages by which the Unit Owner shares the common expenses and owns the common surplus, or permit timeshare estates to be created in any Unit, unless a Majority of Institutional First Mortgagees approve the amendment, which approval shall not be unreasonably withheld. The approval of a Majority of Institutional First Mortgagees, which shall not be unreasonably withheld, shall also be required if such an approval is required under the rules, regulations or requirements of the Federal National Mortgage Association or Federal Home Loan Mortgage Corporation. 21.3 Notices. Any holder, insurer or guarantor of a mortgage on a Unit shall have, if first requested in writing, the right to timely written notice of: (a) any condemnation or casualty loss affecting a material portion of the Condominium Property or the affected mortgaged Unit; (b) a sixty (60) day delinquency in the payment of the Assessments or any Charges on a mortgaged Unit; DECLARATION OF CONDOMINIUM _61- I (c) the occurrence of a lapse, cancellation or material modification of any insurance policy or fidelity bond maintained by the Association; (d) any proposed action which requires the consent of a specified number of mortgage holders. 21.4 Additional Rights. Institutional First Mortgagees shall have the right, upon written. request to.the Association, to: (a) receive a copy of the financial statement of the Association for the immediately preceding fiscal year; and (b) receive notices of and attend Association meetings. 22. The Condominium Association. The Common Elements of the Condominium are governed by the Condominium Association pursuant to this Declaration. Each Unit Owner, either directly or indirectly through the Association's membership, will be a member of the Condominium Association and will be subject to all of the terms and conditions of this Declaration, as amended and supplemented from time to time. Among the powers of the Condominium Association are the power to assess Unit Owners for a share of the expenses of the operation, maintenance and replacement of (including the management fees relating thereto) the Common Elements and to impose and foreclose liens in the event such assessments are not paid when due. The Unit Owners shall be entitled to use said Common Elements in accordance with and subject to the terms of this Declaration and the Rules and Regulations. 23. Covenant Runninq With the Land. All provisions of this Declaration, the Articles, By- Laws and applicable rules and regulations of the Association, shall, to the extent applicable and unless otherwise expressly herein or therein provided to the contrary, be perpetual and be construed to be covenants running with the Land and with every part thereof and interest therein, and all of the provisions hereof and thereof shall be binding upon and shall inure to the benefit of the Developer and subsequent owner(s) of the Land or any part thereof, or interest therein, and their respective heirs, personal representatives, successors and assigns, but the same are not intended to create nor shall they be construed as creating any rights in or for the benefit of the general public. All present and future Unit Owners, tenants and occupants of Units shall be subject to and shall comply with the provisions of this Declaration and such Articles, By-Laws and applicable rules and regulations, as they may be amended from time to time. The acceptance of a deed or conveyance, or the entering into of a lease, or the entering into occupancy of any Unit, shall constitute an adoption and ratification of the provisions of this Declaration, and the Articles, By-Laws and applicable rules and regulations of the Association, as they may be amended from time to time, including, but not limited to, a ratification of any appointments of attorneys-in-fact contained herein. 24. Access of Developer to Building and Units and to Reports. For as long as Developer remains liable to the Condominium Association, 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 Condominium .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 DECLARATION OF CONDOMINIUM —62- 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 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 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. 25. Notices. All notices to the Association required or desired hereunder or under the Articles or By-Laws, shall be sent by certified mail (return receipt requested) to the Association in care of its office at the Condominium, or to such other address as the Association may hereafter designate from time to time by notice in writing to all Unit Owners. Except as provided specifically in the Act, all notices to any Unit Owner shall be sent by first class mail to the address of such Owner's Unit, or such other address as may have been designated by him from time to time, in writing, to the Association. All notices to mortgagees of Units shall be sent by first class mail to their respective addresses, or to such other address as may be designated by them from time to time, in writing to the Association. All notices shall be deemed to have been given when mailed in a postage prepaid sealed wrapper, except notices of a change of address, which shall be deemed to have been given when received, or five (5) business days after proper mailing, whichever shall first occur. 26. Reservation of Roof, Air and Development Rights. In connection with the creation of this Condominium, the Developer shall and does hereby reserve unto itself, the ownership of the air space arising above the level of the roof of the structure constructed upon the Condominium Property, having the exterior dimensions of the perimeter walls of the Building and extending vertically into infinity, and an exclusive easement upon the surface of the roof of the Building. The Association and each Unit Owner do hereby further give and grant to the Developer, and the Developer does hereby reserve unto itself, such easements on, over, under, through and across the Condominium Property as may be necessary for the installation, repair, replacement and maintenance of all improvements and installations placed and constructed by the Developer upon the roof of the Condominium and all areas appurtenant thereto. The Developer, its successors and assigns also have an easement of subjacent lateral support and all other support in every portion of the Condominium Property which contributes to the support of any improvements constructed on or above the roof of the Condominium Property. The rights and privileges reserved by the Developer, in this Section 26, may be assigned (in whole or in part), leased, transferred and/or conveyed by the Developer. The provisions contained in this Section 26 may not be amended, modified or deleted, in whole or in part, without the written consent of the Developer, unless approved by an affirmative vote representing at least 80% of the voting interests in the Condominium. 27. Commercial Units. Notwithstanding anything to the contrary in this Declaration, and except as expressly prohibited in Section 17.1, the Commercial Unit(s) and the Limited Common Elements, if any, appurtenant thereto, may be used for any and all lawful purposes, including, without limitation, as property management offices, and may be transferred, conveyed, leased or disposed of without the consent of the Association. The DECLARATION OF CONDOMINIUM —63- I Commercial Unit(s) and the Limited Common Elements, if any, appurtenant thereto, shall be used in accordance with Applicable Law. Any amendment to the foregoing provisions shall be approved by an affirmative vote representing at least 80% of the voting interests in the Condominium. 28. Additional Provisions. 28.1 Interpretation. The Board of Directors shall be responsible for interpreting the provisions hereof and of any of the Exhibits attached hereto. Such interpretations shall be binding upon all parties unless wholly unreasonable and an opinion of legal counsel engaged by the Association for such purpose that any interpretation adopted by the Association is not unreasonable shall conclusively establish the validity of such interpretation. 28.2 Mortgagees. Anything herein to the contrary notwithstanding, the Association shall not be responsible to any mortgagee or lienor of any Unit, and may assume the Unit is free of any such mortgages or liens, unless written notice of the existence of such mortgage or lien is received by the Association. 28.3 Exhibits. There is hereby incorporated in this Declaration all materials contained in the Exhibits annexed hereto, except that as to such Exhibits, any conflicting provisions set forth thereirl as to their amendment, modification, enforcement and other matters shall control over the provisions hereof. 28.4 Signature of President and Secretary. Wherever the signature of the President of the Association is required hereunder, the signature of a vice-president may be substituted therefor, and wherever the signature of the Secretary of the Association is required hereunder, the signature of an assistant secretary may be substituted therefor, provided that the same person may not execute any single instrument on behalf of the Association in two separate capacities. 28.5 Governing Law. Should any dispute or litigation arise between any of the parties whose rights or duties are affected or determined by this Declaration, the Articles, the By-Laws or applicable rules and regulations adopted pursuant to such documents, as the same may be amended from time to time, said dispute or litigation shall be governed by the laws of the State of Florida. 28.6 Severability. The invalidity in whole or in part of any covenant or restriction, or any section, subsection, sentence, clause, phrase or word, or other provision of this Declaration, the Articles and By-Laws, or applicable rules and regulations adopted pursuant to such documents, as the same may be amended from time to time, shall not affect the validity of the remaining portions thereof which shall remain in full force and effect. 28.7 Waiver: Modifications. No provisions contained in this Declaration shall be deemed to have been waived by reason of any failure to enforce the same, without regard to the number of violations or breaches which may occur. 28.8 Execution of Documents: Attorney-in-Fact. Without limiting the generality of other sections of this Declaration and without such other sections limiting the DECLARATION OF CONDOMINIUM —64- I generality hereof, each Owner, by reason of the acceptance of a deed to such Owner's Unit, shall be deemed to have acknowledged and agreed (i) that all of the provisions of this Declaration, and the Articles and By-Laws, and applicable rules and regulations, are fair and reasonable in all material respects, and (ii) to automatically consent to any rezoning, replatting, waiver of plat, covenant in lieu of unity of title, revised site plan, change, addition or deletion made in, on or to the Community, or transfer of density, use or other development rights, by the Developer or Declarant, or by any affiliate thereof, and in such regard, each Owner, or occupant of a Unit, hereby designates the Association to act on behalf of the Unit Owner, as agent and attorney-in-fact to consent to applications or other documents relating to such matters. If requested by the Developer or the Declarant, each Owner shall evidence their consent to a rezoning, replatting, covenant, revision, change, addition or deletion or transfer in writing (provided, however, that the refusal to give such written consent shall not obviate the automatic effect of this provision). The foregoing Power of Attorney is irrevocable and is coupled with an interest. The provisions of this section may not be amended without the consent of the Developer. 28.9 Litigation/Waiver of Jury Trial. As to any claim arising from or connected with the Developer's construction, development, repair, replacement or maintenance of the Condominium Property, or the Developer's operation of the Association (the "Development Matters"), it shall be a material condition precedent to the institution of any proceeding regarding Development Matters that (i) the party or parties bringing same shall have first given notice to the Developer or other party against whom/which relief or recovery is sought (the "Defendant") of the specific Development Matters complained of and what actions are necessary to cure or correct same and (ii) the Defendant shall have been given at least forty-five (45) days (subject to extension by reason of matters beyond the control of the Defendant or because of the nature of the applicable Development Matter(s) and the time necessary to cure or correct same) in which to cure or correct the applicable Development Matter(s) and shall have materially failed to do so. THE DEVELOPER, THE ASSOCIATION, AND ALL OWNERS AND OTHER PERSONS ACQUIRING ANY RIGHT, TITLE OR INTEREST IN OR TO ANY UNIT, EACH HEREBY WAIVES TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM PERTAINING TO ANY DEVELOPMENT MATTERS. Without limiting the general binding effect of this Declaration; each Owner and other person acquiring any right, title or interest in or to any Unit shall be deemed, by virtue of the acceptance of the conveyance, grant, transfer or assignment thereof, to be fully bound by the provisions of this Section 28.9, as shall.the Developer and the Association. 28.10 Gender; Plurality. Wherever the context so permits, the singular shall include the plural, the plural shall include the singular and the use of any gender shall be deemed to include all or no genders. 28.11 Captions. The captions herein and in the Exhibits annexed hereto are inserted only as a matter of convenience and for ease of reference and in no way define or limit the scope of the particular document or any provision thereof. DECLARATION OF CONDOMINIUM _65- I 28.12 Conflict. In the event any of the provisions of this Declaration conflict with the provisions of the Articles and By-Laws, as they may be amended from time to time, the provisions of this Declaration shall control and prevail. Notwithstanding anything contained herein to the contrary, the powers and duties of the Association, and the rights and remedies of the Unit Owners as provided in the Act shall not be limited or abridged. 28.13 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 ibinding 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 a guarantor or insurer of, the health, safety or welfare of any Owner, occupant or user of any portion of the Condominium Property and/or Association Property including, without limitation, Owners and their guests, invitees, agents, servants, 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 properties 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 enforces or ensures the compliance with the laws of the United States, State of Florida, County and/or any other jurisdiction or the prevention of tortious activities; 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 Unit Owner (by virtue of his acceptance 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 causes 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 include within its meaning all of the Association's directors, officers, committee and board members, employees, agents, contractors (including management companies), subcontractors, successors and assigns, and any persons designated, from time to time, by the Association or by the Unit Owners to act on their behalf as directors, voting members or otherwise, with respect to the Association. The provisions hereof shall also inure to the benefit of the Developer, which shall be fully protected hereby. Notwithstanding anything contained herein to the contrary, the rights DECLARATION OF CONDOMINIUM —66- I and remedies of each Unit Owner pursuant to Sections 718.111(3), 718.303 and 718.506, Florida Statutes, shall not be limited or abridged. 29. DISCLAIMER OF WARRANTIES. 29.1 GENERAL DISCLAIMER. DEVELOPER HEREBY DISCLAIMS ANY AND ALL EXPRESS OR IMPLIED WARRANTIES AS TO DESIGN, CONSTRUCTION, FURNISHING AND EQUIPPING OF THE CONDOMINIUM PROPERTY, EXCEPT AS MAY BE REQUIRED IN SECTION 718.618(6) OF THE ACT, TO THE EXTENT APPLICABLE. AS TO SUCH WARRANTIES WHICH CANNOT BE DISCLAIMED, AND AS TO OTHER CLAIMS, IF ANY, WHICH CAN BE MADE AS TO THE AFORESAID MATTERS, ALL INCIDENTAL AND CONSEQUENTIAL DAMAGES ARISING THEREFROM ARE HEREBY DISCLAIMED. 29.2 SPECIFIC ADDITIONAL DISCLAIMERS OF REPRESENTATIONS, WARRANTIES AND LIABILITY. NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, HAVE BEEN GIVEN OR MADE BY DEVELOPER OR ITS AGENTS OR EMPLOYEES, UNLESS EXPRESSLY SET FORTH IN THIS DECLARATION, AND THE DEVELOPER HEREBY SPECIFICALLY DISCLAIMS ANY LIABILITY OR RESPONSIBILITY FOR THE FOLLOWING: (a) ANY MATTERS RELATING TO THE VIEWS, DESIGNS, SECURITY, SIZE (SQUARE FOOTAGE), AND PRIVACY OF THE UNITS AND OTHER PORTIONS OF THE CONDOMINIUM, AND THE DESIGN, HEIGHT AND DENSITY OF THE SURROUNDING PROPERTIES. (b) ANY MATTERS RELATING TO THE EXTERIOR LIGHTING SCHEME FOR THE IMPROVEMENTS WITHIN THE CONDOMINIUM, INCLUDING, WITHOUT LIMITATION, THE PROPOSED RETAIL, OFFICE AND COMMERCIAL PORTIONS OF THE CONDOMINIUM, WHICH MAY CAUSE EXCESSIVE ILLUMINATION AND MAY REQUIRE THE INSTALLATION OF WINDOW TREATMENTS. (c) THE PREVENTION OF TORTIOUS ACTIVITIES, THE SECURITY, HEALTH, SAFETY OR WELFARE OF ANY OWNER, OCCUPANT OR USER OF ANY PORTION OF THE CONDOMINIUM INCLUDING, WITHOUT LIMITATION, UNIT OWNERS AND THEIR TENANTS, GUESTS, INVITEES, AGENTS, SERVANTS, CONTRACTORS OR SUBCONTRACTORS. ANY PROVISIONS OF THIS DECLARATION, OR OF THE ARTICLES OR BY-LAWS, 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 RECIPIENT OF SUCH ASSESSMENT FUNDS TO PROTECT OR FURTHER THE HEALTH, SAFETY OR WELFARE OF ANY PERSON(S), EVEN IF ASSESSMENTS ARE CHOSEN TO BE USED FOR ANY SUCH REASON. DECLARATION OF CONDOMINIUM -=67- I (d) THE PHYSICAL CONDITION, ZONING, COMPLIANCE WITH APPLICABLE LAW, MERCHANTABILITY, USABILITY, FITNESS FOR A PARTICULAR PURPOSE OF ANY PORTION OF THE COMMON ELEMENTS OR OTHER PORTIONS OF THE CONDOMINIUM, INCLUDING, WITHOUT LIMITATION, THE SALE, OPERATION, LEVEL OR COST OF MAINTENANCE, TAXES OR REGULATION THEREOF. (e) BOWING AND/OR DEFLECTION OF MATERIALS, AND CRACKING AND SETTLEMENT OF IMPROVEMENTS, WHICH EACH OWNER RECOGNIZES AND AGREES IS TYPICAL IN THE TYPE OF IMPROVEMENTS IN THE CONDOMINIUM. (fl MOLDS, MILDEW, TOXINS AND FUNGI WHICH, GIVEN THE CLIMATE AND HUMID CONDITIONS IN SOUTH FLORIDA, MAY EXIST AND/OR DEVELOP WITHIN THE UNITS, AND/OR OTHER PORTIONS OF THE CONDOMINIUM. EACH UNIT OWNER AGREES TO REGULARLY INSPECT THEIR UNITS FOR PLUMBING LEAKS, WATER ACCUMULATION, AND WATER INTRUSION THROUGH WINDOWS, DOORS AND ROOFS FOR ANY SIGNS OF MOLD AND REGULARLY MAINTAIN ADEQUATE AIR CIRCULATION AND VENTILATION BY CONTINUOUSLY OPERTAING ITS HVAC SYSTEM. (g) NOISE,.MUSIC, LIGHTING, VIBRATIONS, ODORS, COMMOTION AND OTHER ACTIVITIES AND UNPLEASANT EFFECTS OF NEARBY CONSTRUCTION OR OTHER ACTIVITY, AND EMANATING FROM RESIDENTIAL UNITS OR COMMERCIAL. UNITS OR THE SURROUNDING PROPERTIES, INCLUDING THE NEARBY METRORAIL STATION, WHICH BECAUSE OF ITS PROXIMITY TO THE CONDOMINIUM, MAY CREATE DISTURBANCES AND IMPEDE .THE USE OF PORTIONS OF THE CONDOMINIUM. (h) ACTS OF GOD AND UNCONTROLLABLE EVENTS AND, GIVEN THE LOCATION OF THE CONDOMINIUM, THE EXPOSURE TO THE POTENTIAL DAMAGES FROM FLOODING AND FROM HURRICANES, INCLUDING WITHOUT LIMITATION, DAMAGES FROM STORM SURGES AND WIND-DRIVEN RAIN AND IN ANY PORTIONS OF THE IMPROVEMENTS LOCATED BELOW THE FEDERAL FLOOD PLAIN. (i) THE LEVEL OF SOUND TRANSMISSION BETWEEN AND AMONG UNITS AND THE OTHER PORTIONS OF THE CONDOMINIUM AND THE SURROUNDING PROPERTIES, WHICH, BECAUSE SOUND TRANSMISSION IN A BUILDING SUCH AS THE CONDOMINIUM IS VERY DIFFICULT TO CONTROL, MAY CREATE DISTURBANCES IMPEDE THE USE OF THE UNITS AND OTHER PORTIONS OF THE CONDOMINIUM. (j) THE LARGE TEMPERATURE FLUCTUATIONS IN THE UNITS, WHICH ARE LIKELY TO OCCUR DESPITE THE NORMAL OPERATIONS OF THE AIR CONDITIONING SYSTEMS, DUE TO THE LARGE AMOUNTS OF OUTDOOR GLASS WINDOWS AND DOORS AND THE LOCATION DECLARATION OF CONDOMINIUM _68- OF THE VARIOUS ROOMS WITHIN THE UNIT, AS WELL AS THE DIFFERING WEATHER CONDITIONS THROUGHOUT THE YEAR, AND WHICH WILL REQUIRE THE INSTALLATION OF INDOOR WINDOW TREATMENTS SUCH AS CURTAINS AND BLINDS. 29.3 EACH OWNER, BY ACCEPTING AND ACQUIRING TITLE TO A UNIT, AND EACH OTHER PERSON HAVING AN INTEREST IN OR LIEN UPON, OR MAKING ANY USE OF, ANY PORTION OF THE CONDOMINIUM (BY VIRTUE OF ACCEPTING SUCH INTEREST OR LIEN OR MAKING SUCH USES), SHALL BE BOUND BY', THIS ARTICLE, SHALL BE DEEMED TO HAVE ASSUMED THE RISKS ASSOCIATED WITH EACH OF THE ABOVE MATTERS AND OCCURRENCES AND SHALL BE DEEMED TO HAVE AUTOMATICALLY WAIVED ANY AND ALL RIGHTS, CLAIMS, DEMANDS AND CAUSES OF ACTION AGAINST THE DEVELOPER AND THE CONDOMINIUM ASSOCIATION ARISING FROM OR CONNECTED WITH ANY MATTER FOR WHICH THE LIABILITY OF THE AFOREMENTIONED PARTIES HAS BEEN DISCLAIMED IN THIS SECTION. 29.4 DISCLAIMERS OF REPRESENTATIONS, WARRANTIES AND LIABILITY. NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, HAVE BEEN GIVEN OR MADE BY DEVELOPER OR ITS AGENTS OR EMPLOYEES AND DEVELOPER HEREBY DISCLAIMS ANY AND ALL EXPRESS OR IMPLIED WARRANTIES, TO THE EXTENT PERMISSIBLE BY APPLICABLE LAW. AS TO SUCH WARRANTIES AND LIABILITIES WHICH CANNOT BE DISCLAIMED, AND AS TO OTHER CLAIMS, IF ANY, WHICH CAN BE MADE AS TO THE AFORESAID MATTERS, ALL INCIDENTAL AND CONSEQUENTIAL DAMAGES ARISING THEREFROM ARE HEREBY DISCLAIMED. 29.5 LIMITATION OF DAMAGES. AS TO SUCH WARRANTIES WHICH CANNOT BE DISCLAIMED, AND TO OTHER CLAIMS, IF ANY, WHICH CAN BE MADE AS TO THE AFORESAID MATTERS, ALL INCIDENTAL, SPECIAL, PUNITIVE AND CONSEQUENTIAL DAMAGES ARISING THEREFROM ARE HEREBY DISCLAIMED. ALL OWNERS, BY VIRTUE OF ACCEPTANCE OF TITLE TO THEIR RESPECTIVE UNITS (WHETHER FROM THE DEVELOPER OR ANOTHER PARTY) SHALL BE DEEMED TO HAVE AUTOMATICALLY WAIVED ALL OF THE AFORESAID DISCLAIMED WARRANTIES AND INCIDENTAL AND CONSEQUENTIAL DAMAGES. DECLARATION OF CONDOMINIUM _69- I 29.6 REFERENCES TO DEVELOPER AND ASSOCIATION. AS USED IN THIS SECTION, REFERENCES TO DEVELOPER SHALL INCLUDE WITHIN THEIR MEANING ITS MEMBERS, PARTNERS, AND ITS SHAREHOLDERS, DIRECTORS, OFFICERS, BOARD MEMBERS, EMPLOYEES, AGENTS, CONTRACTORS, SUBCONTRACTORS, AND ITS SUCCESSORS AND ASSIGNS AND REFERENCES TO THE "ASSOCIATION" OR "CONDOMINIUM ASSOCIATION" SHALL ALL OF ITS DIRECTORS, OFFICERS, COMMITTEE AND BOARD MEMBERS, EMPLOYEES, AGENTS, CONTRACTORS (INCLUDING MANAGEMENT COMPANIES), SUBCONTRACTORS, SUCCESSORS AND ASSIGNS. <INTENTIONALLY LEFT BLANK> r DECLARATION OF CONDOMINIUM -70- I IN WITNESS WHEREOF, the Developer has caused this Declaration to be duly executed and its corporate seal to be hereunto affixed this day of , 200_ Witnessed by: Valencia South Miami, LLC, a Florida limited liability company By: Merrit Development, LLC, a Florida limited Name: liability company, as its sole Managing Member By Name: Name: Title: Address: STATE OF FLORIDA ) SS:: COUNTY OF ) The foregoing Declaration was acknowledged before me, this day of , 200_, by , as of Merrit Development, LLC, a Florida limited liability company, as the sole Managing Member of Valencia South Miami, LLC, a Florida limited liability company. Such person is personally known to me. Name: Notary Public, State of Florida My Commission Expires: Serial Number (if any) DECLARATION OF CONDOMINIUM —71- I JOINDER Valencia South Miami Condominium Association, Inc., a Florida corporation not for profit, hereby agrees to accept all the benefits and all of the duties, responsibilities, obligations and burdens imposed upon it by the provisions of this Declaration and Exhibits attached hereto. IN WITNESS WHEREOF, Valencia South Miami Condominium Association, Inc. has caused these presents to be signed in its.name by its proper officer and its corporate seal to be affixed this day of Witnessed by: VALENCIA SOUTH MIAMI CONDOMINIUM ASSOCIATION, INC., a Florida corporation not- for-profit Name: By: President Address: Name: (Corporate Seal) STATE OF FLORIDA ) SS: COUNTY OF ) The foregoing joinder was acknowledged before me this day of , 200_, by , as President of VALENCIA SOUTH MIAMI CONDOMINIUM ASSOCIATION, INC, a Florida corporation not-for-profit, on behalf of said corporation. Such person is personally known to me or produced a driver's license as identification. { Name: Notary Public, State of Florida My Commission Expires: Serial Number(if any) DECLARATION OF CONDOMINIUM —72- I CONSENT OF MORTGAGEE THIS CONSENT is given as of the day of , 200_, by Corus Bank, N.A. ("Mortgagee"), being the owner and holder of that certain Mortgage dated March _, 200_from Valencia South Miami, LLC, a Florida limited liability company, to Mortgagee in the aggregate original principal amount of $50,000,000.00 recorded on , 20_, in Official Records Book Page of the Public Records of Miami-Dade County, Florida. WHEREAS, Mortgagor has requested Mortgagee to consent to the recording of the Declaration of Condominium of Valencia, a Condominium (the"Declaration"). NOW, THEREFORE, Mortgagee consents to the recordation of the Declaration. Mortgagee makes no warranty or any representation of any kind or nature concerning the Declaration, any of its terms or provisions, or the legal sufficiency thereof, and disavows any such warranty or representation as well as any participation in the development of Valencia, a Condominium (the "Condominium"), and does not assume and shall not be responsible for any of the obligations or liabilities of the developer contained in the Declaration or the prospectus, (if any) or other documents issued in connection with the promotion of the Condominium. None of the representations contained in the prospectus, (if any) or other documents shall be deemed to have been made by Mortgagee, nor shall they be construed to create any obligation on Mortgagee to any person relying thereon. This consent is limited to the purposes and requirements of Section 718.104, Florida Statutes, and does not affect or impair the rights and remedies of Mortgagee as set forth in the Mortgage or in the Declaration. Witnessed by: Corus Bank, N. A. By: Print Name: Print Name: Title: Address: Print Name: STATE OF FLORIDA ) SS: COUNTY OF ) The foregoing joinder was acknowledged before me this_day of 1200_, by , as of Corus Bank, N.A. Such person is personally known to me or produced a driver's license as identification. Name: Notary Public, State of Florida My Commission Expires: DECLARATION OF CONDOMINIUM _73- I Apr-24-03 "04:45P ca'rlos wi l l lard&flanagan P.Ol <1 FACSIMILE TRANSMITTAL SHEET CARLOS WILLIARD & FLANAG'rAN, P.A. Attorneys at Law 999 Ponce de Leon Boulevard,Suite 1000 Coral Gables, Florida 33134 TEL: 305.444.1500 FAX: 305.443.8617 E-MAIL: CWF-LAW®SHADOW.NET TO: FROM: Mr. Subrata Basu Jeffrey M. Flanagan, Esq. COMPANY/AGENT:' DATE: April 24, 2003 FAX NUMBER: TOTAL NO. OF PAGES INCLUDING COVER: 305.666.4591 3 RE: SW 70th Street,LLC—South Miami Aprtments NOTES/COMMENTS: Transmitted herewith is the streetscape option which our client, SW 70th Street, LLC,will attempt to have approved by Miami-Dade County. If you have any questions, comments or need further information, please don't hesitate to call Chad Williard or me. i WELAV® - � FIGHT CANCER _ YV//-- N VY- t 1 If all pages are not received please call us at (305) 444-1500 The information contained in this facsimile message is attorney-privileged and confidential and intended only for the use of the individual or entity named above. If the reader of this message is not the intended recipient, you are hereby notified that any dissemination, distribution or copying of this communication is strictly prohibited. If you have received this communication in error,please notify us immediately by telephone. Apr-24-03 04:46P carlos williard&flanagan P.02 ^� y W. 70TH STREET Tl- i d d O Ras, I 17' 0 11' r _ 0 0 � m 0 d � I a - - - y I `J Cb m 13.00 13.00 _ I® — _ 1 .8 I Apr-24-03 04:46P carlos williard&Vlanagan P.03 t r r ® S.W. 70TH STREET :"-"� RCS• — LZ 101 17' I 9Z 101 o o�ti b F 5Z 10-1 t � I 0 3 bZ 101 — _ ,SAO L,S.00 CID a.o0 H � • I I £Z 101 I I f I ZZ 101 L Z 101 OZ 101 L—U 6L 101 g I 2 L 101 Mary Jo Pinedo From: Eve Boutsis Sent: Wednesday, October 05, 2005 4:18 PM To: O'Donniley,Don; Davis, Maria Cc: Luis Figueredo; Mary Jo Pinedo; Ginger Roy Subject: RE: Codina Importance: High Don: I reviewed the agreement Proctor sent(signed by his client)and your last version (CSM's last version). There are two differences in the documents: 1. the number at bottom of document is different(tracking number. Yours says 9, theirs says version 11). 2. the name of the applicant has changed. Your version reflects Codina Dev. Corp. Theirs, on page 1, reflects "Coding Fairfield 1, LLC." Then, the notice provision at page 10 reflect notice to two different entities: "Codina Dev. Corp." and "[Fairfield Entity]". Signature block, page 12, reflects "Codina Fairfield I, LLC, by, Codina Residential LTD, its managing member, by Codina Residential, Inc., its General Partner, signed by Kolleen Cobb, vp. Were you aware of the change in applicant name? Very truly yours, Eve Eve A. Boutsis, Office of City Attorney City of South Miami Nagin Gallop Figueredo, P.A. 18001 Old Cutler Road, Suite 556 Palmetto Bay, Florida 33157 Telephone: (305) 854-5353 Facsimile: (305)854-5351 E-mail: Eboutsis @ngf-law.com �ry 1 t Page 2 of 4 4 WestlaW. 302 So.2d 777 Page 1 302 So.2d 777 (Cite as: 302 So.2d 777) H 131 Zoning and Planning X338 District Court of Appeal of Florida,Third District. 414338 Most Cited Cases CITY OF MIAMI BEACH,a Florida municipal Where apartment-hotel, which was nonconforming corporation,Appellant, use because of insufficient off-street parking, was V. changed to condominium, and little structural ARLEN KING COLE CONDOMINIUM change was made, such change in form of ASSOCIATION, INC.,et al.,Appellees. ownership did not result in abandonment of No. 74-1150. nonconforming use. West's F.S.A. § 71 1.21. *778 Joseph Wanick, City Atty. and Herbert Nov. 5, 1974. Marcus Asst.City Atty.,for appellant. Rehearing Denied Nov. 26, 1974. Heller& Kaplan,Miami,for appellees. Action by city to enforce zoning ordinance. The Circuit Court, Dade County, Rhea Pincus Before BARKDULL, C. J., and HENDRY and Grossman, J., rendered judgment for the property HAVERFIELD,JJ. owners, and city appealed. The District Court of gppeal held that where abuilding-which-was an PER CURIAM. existing nonconforming-=use--because-of insufficient bf& treet—parking== -was_ changed_ = from .-an In 1961 an improvement was made on certain real apartment=hotel -to a=condominium, and Tittle- property within the municipality of the City of rstructural-changewas made,sueh-"change in form of Miami Beach. Upon completion, it was known as r_owner-ship-did_not abandon nonconforming-use. the King Cole Apartments and contained 108 hotel rooms and 241 apartments. At the time of the Affirmed. erection of this improvement, the developers complied with the existing municipal ordinances West Headnotes relative to off-street parking, and provided a minimum of 172 off-street parking spaces. �1I Zoning and Planning X328 414328 Most Cited Cases In 1971 the City of Miami Beach amended its Where apartment-hotel, which was existing zoning regulations and upgraded the number of nonconforming use because of insufficient off-street off-street parking spaces that would be necessary parking, was changed to condominium, there was for the operation of a hotel-apartment similar to the no easement in parking area to be protected by city King Cole Apartments. Under these regulations, if for the condominium owners which would result in the hotel-apartment had been erected in 1971, the requirement that property owners meet off-street developer would have been required to provide 348 parking requirements in current zoning ordinance off-street parking spaces for the use of the tenants before building could be converted into of the building. Upon the adoption of the 1971 condominium. West's F.S.A. §711.21. amendments to the comprehensive zoning ordinances of the City of Miami Beach, the 121 Zoning and Planning 16;-336.1 operation of the King Cole Apartments (as it related �\ 414336.1 Most Cited Cases to off-street parking spaces) became a (Formerly 414036) 'nonconforming'use. Changing type of ownership of real estate upon which nonconforming use is located will not destroy In early 1974, the owners of the King Cole valid existing nonconforming use. West's F.S.A. § Apartments (the appellees in the instant case) filed a 711.21. declaration of condominium for the purpose of ©2005 Thomson/West.No Claim to Orig. U.S.Govt. Works. http://print.westlaw.com/delivery.html?dest=atp&format=HTMLE&dataid=B0055 800000014560005... 3/22/2005 Page 3 of 4 302 So.2d 777 Page 2 302 So.2d 777 (Cite as: 302 So.2d 777) converting the King Cole Apartments into a than those originally required (which met the code condominium, pursuant to the applicable laws of the at the time the improvement was constructed). State of Florida. At this time, there were several There is no question of the right to develop a statutes of the State of Florida that were material to condominium in the use district wherein the subject this declaration of condominium. There was no property is located. Following final hearing, the specific provisions in the 1971 ordinances relative trial judge entered a final judgment finding that the to off-street parking that would be necessary for the 'use' of the building had not changed by the owners erection of a condominium (in fact, today such desiring to convert it into a condominium and that would probably be illegal under s 711.21, Fla.Stat. they were not required to meet the off-street parking [FN I]), but the provision requiring off-street requirements of the ordinances of the City of Miami parking was a catch-all provision in the City of Beach as they existed on the date of the filing of the Miami Beach Zoning Ordinance.[FN2] declaration of condominium.This appeal ensued. FN1. 's 711.21 Zoning and building.--All [1] We first dispose of the City's contention that laws, . ordinances and regulations there is some easement in the parking area to be concerning -buildings or zoning shall be protected by the City for the condominium owners. construed and applied with reference to the It is apparent from the evidence that the parking ;nature and use of such property without areas form part of the common area, as defined in regard to the form of ownership. No law, the declaration, which were subject to being ordinance or regulations shall establish any conveyed to be condominium association. So, we requirement concerning the use of find no merit in this contention by the City. location, placement or construction of buildings or, other improvements which Second, the major contention by the City presents a are, or may thereafter by subjected to the more difficult problem, i.e., whether an owner condominium form of ownership, unless (when he desires to convert a valid nonconforming such requirement shall be equally use apartment building into a condominium) may applicable to all buildings and continue to provide the number of parking spaces improvements of the same kind not then or that were permitted as a nonconforming use[FN3] thereafter to be subjected to the or must he meet the parking requirements in effect condominium form of ownership.' at the time he filed his declaration of condominium, it being conceded that if a new structure was being FN2. 's 9-4 Interpretation of Off-Street erected on the site as of the date of the filing of Parking Requirements. declaration of condominium it would be necessary V. The parking space requirements for a to meet the requirements of the 1971 ordinances. use not specifically listed in this Section shall be the same as for a listed use of FN3. 's 12-3 Nonconforming Use of similar characteristics of parking demand Buildings. generation.' 'A. Except as otherwise provided herein, the lawful use of building existing at the The City brought a suit which would, in effect effective date of this Ordinance may be (among other things), prevent the hotel-apartment continued, although such use does not from being converted to a condominium because it conform to the provisions hereof. If no could not provide sufficient off-street parking structural alterations are made, a spaces for an apartment as defined and required in nonconforming use of a building may be the 1971 ordinance. The appellees, as defendants, changed to another nonconforming use of answered in effect contending that they were the same or of a more restricted entitled, as a matter of right under the law, to classification. Whenever a nonconforming convert the hotel-apartment *779 into a use has been changed to a more restricted condominium and, as a nonconforming use under use or to a conforming use, such use shall the 1971 ordinance as amended, they were not not thereafter be changed to a less required to have any more off-street parking spaces restricted use. The nonconforming use of ©2005 Thomson/West.No Claim to Orig.U.S.Govt. Works. http://print.westlaw.com/delivery.html?dest=atp&format=HTMLE&dataid=B0055800000014560005... 3/22/2005 Y Page 4 of 4 302 So.2d 777 Page 3 302 So.2d 777 (Cite as: 302 So.2d 777) a building may be hereafter extended throughout those parts of a building which were lawfully and manifestly arranged or designed for such use at the time of passage of these regulations.' [2][3] A nonconforming use relates to the property and not to the type of ownership of the property. Beers v. Board of Adjustment of Township of Wayne, 75 N.J.Super. 305, 183 A.2d 130; Bridge Park Co. v. Borough of Highland Park, 113 N.J.Super. 219, 273 A.2d 397; Maplewood Village Tenants Ass'n v. Maplewood Village, 116 N.J.Super. 372, 282 A.2d 428-Changing the type --of-ownership of real estate- upon which - a `_nonconforming use is_located will not destroy a Nalid_existing non=conforming use: This is the only significant change in the real property and improvements involved in the instant litigation. Such structural changes as the owners determine to make in the hotel-apartment to convert to condominiums were minor in nature and not of a structural quality. Therefore, there was no abandonment of the nonconforming use under the zoning ordinances of the City of Miami Beach. The trial judge having found that the use of the property had not changed and the record supporting this finding, under the applicable law we are required to sustain the finding and, therefore, the final judgment here under review will not be disturbed and is thereby affirmed. Affirmed. 302 So.2d 777 END OF DOCUMENT C 2005 Thomson/West.No Claim to Orig.U.S.Govt. Works. http://print.westlaw.com/delivery.html?dest=atp&format=HTMLE&dataid=B0055 800000014560005... 3/22/2005 OVER 50 YEARS 0 TM Zonin g Bulletin' SAMPLE ISSUE in this issue: Special Permit—Religious school wants to reinforce and construct buildings ..................................................Page 2 .Adult Entertainment—Dancers object to pasties and G-strings .........................................................................Page 2 Variance—Neighbors complain of planned seven-story dormitory........................................................................Page 3 Variance—Board provides no information as to why it granted variance .............................................................Page 4 Environment—Commission bases decision on expert testimony and personal observation...............................Page 5 Telecommunications—Wireless provider sites large lattice tower on mountaintop..........................................Page 6 - Rezoning—Power plant offers to build new high school if rezoning permitted......................................................Page 7 First Amendment—Property owner posts large signs protesting tax valuation..................................................Page 8 Publisher:Dennis Hofmaier Managing Editor:Julie DiMauro,Esq. Editor in Chief:Patricia J.Lloyd,Esq. Editors:Annie Archambault, Jeremy C.Fox,Carol Johnson Perkins,Esq.,Laura Starczewski,Esq. Heidi Taylor,Colin.A.Thakkar,Esq. Contributor:Alexander D.Ruskell;Esq. The publisher is not engaged in rendering legal or other professional advice and assumes no responsibility for the statements and opinions of the contributing writers or editors.Case law and statutes change without notice from time to time and are often specific to one jurisdiction onty The information herein is not intended to be,nor should it be considered, a substitute for legal or professional advice rendered by a competent attorney or other professional.If you have any questions about the application of issues raised herein to your particular situation,seek the advice of a competent attorney or other professional.The entire content of this newsletter is copyrighted by the publisher and may not be copied without prior permission.Contact Copyright Clearance Center(978)750-8400 for permission to photocopy for internal use.Contact publisher for other reprint requests. We respect your privacy.If you do not want your name used for future offerings of related products or for products from third parties,please let us know by sending us your complete name and address. Published by QUMAN PUBLISHING GROUP Agent for Quinlan Publishing Co. ZONING BULLETIN ISSN 0514-7905 (print) 1544-5836(online) 23 Drydock Ave.,Boston,MA 02210-2387(617)542-0048 fax: (617)345-9646 email: info @quinlan.com http://www.quinlan.com Copyright©2004 ZOsam44 Page 2 Z.B. Special Permit—Religious school wants to reinforce and construct buildings -----........... — Yallage denies permit based on traffic concerns Citation:Westchester Day School v Village of Mamaroneck, U.S.District Court for the Southern District of New York,No. 02 Civ. 6291 (WCC)(2003) NEW YORK (09/05/03) —Westchester Day School operated an orthodox Jewish day school. It filed an application with the village of Mamaroneck for a special permit to undertake construction and renovations. The school wanted to reinforce some 19th-century buildings and construct Gordon Hall. Gordon Hall would provide the school with many of the basic facilities it lacked, such as a shul where students and faculty could pray,modem classrooms with space for tech- nological equipment,a library,music room,art room,and a cafeteria.The new building would also enable the school to have smaller class sizes and allocate its space among the different grades more rationally.Finally,the school wanted ' to make the buildings handicapped accessible and install new doors,light fix- , tares,and audio-visual equipment. The village denied its application,based on traffic and parking concerns. Westchester sued. DECISION:Judgment for the school. The denial was improper. The existence of the school was premised on a religious mission. Neces- sary to this mission was the existence of.adequate facilities. Westchester's proposed modifications were both necessary and legitimate changes in fur- therance of Westchester's religious mission of educating students with a dual curriculum of secular and Judaic studies. This made the application denial a substantial burden on Westchester's free exercise of religion. While it was true Westchester students could still pray and be educated without the special permit,their religious experience was limited by the cur- rent size and condition of the school buildings. Westchester should have ac- commodated, within reason, the growing number of students who wished to pursue a Jewish education there. Traffic concerns had never been deemed to be compelling government in- terests.There was nothing to suggest a lack of parking spaces provided in the application would result in a direct and immediate threat to public health,safety; or welfare. see also:Traffic Alternatives Inc.a City of New York,218 F.Supp.2d 423(2002). see also:Love Church v City of Evanston, 671 F.Supp. 515(1987). (`Adult-Entertainment=Danre -gobjgct-to-pasties-and-G-stringsD Ask for injunction on enforcing ordinance Citation:Heideman v South Salt Lake City,10th U.S. Circuit Court of Appeals, No. 02-4030(2003) The 10th Circuit has jurisdiction over Colorado, Kansas, New Mexico, Oklahoma, Utah, and Wyoming. Z.B. Page 3 UTAH(11/04/03)—The South Salt.Lake City Council enacted an ordinance _ prohibiting nudity with sexually-oriented businesses. Before enacting the ordinance,the city gathered police reports and studies from around the country regarding the connection between sexually-oriented commercial businesses and negative secondary effects,such as crime,prosti- tution, and lowered property values. After reviewing the studies,the city decided to disallow nude dancing,but to allow dancers to perform wearing G-strings and pasties. Several nude dancers sued,arguing the new ordinance violated their free- dorn of expression rights.The court ruled in the city's favor. The dancers appealed. DECISION: Affirmed. The new ordinance did not violate the dancers' rights to freedom of expression. The requirement of wearing pasties and G-strings was a minimal restric- tion in furtherance of the asserted governmental interests,and the restriction left ample capacity to convey the dancers' erotic message. Nudity was not a message in itself, but it could be used to convey any number of artistic messages.Often,nudity wasn't communicative at all.How- ever,by banning nudity in sexually-oriented businesses,the city did not pre- clude the expression of any particular set of ideas, but only prohibited one particular manner or conveying those ideas because it was convinced that manner caused negative secondary effects. The important point was that the dancers were allowed to convey their message,not that they were able to do so in a state of undress. The government interest,controlling negative secondary effects,was com- pletely unrelated to freedom of expression. The city gathered evidence, and was entitled to as great a degree of deference in using that evidence as any other city. see also: City of Erie v. Pap's A.M., 529 U.S. 277(2000). see also: Turner Broadcast System Inc. a FCC, 512 U.S. 622(1994). Variance—Neighbors complain of planned seven-story dormitory Height variance necessary to include ornamental roof Citation: Samuel a The City of New Orleans Board of Zoning Adjustments, Court of Appeals of Louisiana, 4th Circuit,No. 2003-CA-0604(2003) LOUISIANA(09/17/03)—Xavier University was located in an area zoned as a light industrial district. Because of a lack of student housing on campus, Xavier began building a seven-story dormitory.The dormitory complied with the requirements for a light industrial area except with respect.to its height. Xavier sought a 10-foot variance to accommodate a green gabled roof that was identified with the buildings on campus as a symbol of the university. Xavier filed an application with the zoning board for a variance. At the hearing, Xavier representatives testified the planned roof would in fact use less than half of the requested variance. Zoning Bulletin . VOLUME 52,NUMBER24• DECENMER24,2004 in this issue: Adult Entertainment—Ordinance applies to any commercial establishment serving .................... g alcohol Page 2 . Ordinance—Abortion provider considered a`clinic' ....... Page 3 Ordinance—Ordinance fails to include parking requirements for tour boats ........................................... Page 4 Ordinance —Real estate company argues sales agents are independent contractors Page 5 Nonconforming Use—Neighbors use easement for close to 60 years............................................................ Page 5 Conditional Use—Property owner wants to expand miningoperation............................................................. Page 6 Variance-Variances only allowed for hardships not caused by landowner..................................................... Page 7 Vested Right—Prior zoning classification allows townhouses ................................:................................... Page 8 Publisher:,Dennis Hofmaier Managing Editor:Julie DiMauro,Esq. Editor in Chief: Lesley Rosenbloom,Esq. Editors:Annie Archambault, Carol Johnson Perkins,Esq.,Elizabeth Purcell,Esq.,Delora Skelton, Laura Starczewski,Esq.,Heidi Taylor,Colin A.Thakkar,Esq., Ryan Wood - Contributor:Alexander D.Ruskell;Esq. The publisher is not engaged in rendering legal or other professional advice and assumes no responsibility for the statements and opinions of the contributing writers or editors.Case law and statutes change without notice from time to time and are often specific to one jurisdiction onfyThe information herein is not intended to be,nor should it be considered, a substitute for legal or professional advice rendered by a competent attorney or other professional.If you have any questions about the application of issues raised herein to your particular situation,seek the advice of a competent attorney or other professional.The entire content of this newsletter is copyrighted by the publisher and may not be copied without prior permission.Contact Copyright Clearance Center(978)750.8400 for permission to photocopy for internal use.Contact publisher for other reprint requests. We respell your privacy.If you do not want your name used for future offerings of related products or for products from third parhes,please let us know by sending us your complete name and address. Published by QumAN PnLNmG GROUP Agent for Quinlan Publishing Co. ZONING BULLETIN ISSN 0514-7905(print) 1544-5836(online) 23 Drydock Ave.,Boston,MA 02210-2387(617)542-0048 fax: (617)345-9646 email: info @quinlan.com http://www.quinlan.com Copyright ©2004 Page 2—December 24,2004 Z.B. Adult Entertainment=Ordinance-applies-to-any conunercial-establishment-- serving alcohol Business owner claims ordinance unconstitutionally broad Citation: Kraimer a City of Schofield, U.S. District Court for the Western District of Wisconsin, No. 03-C-0473-C(2004) WISCONSIN(10/28/04)—The City of Schofield enacted an ordinance that prohibited certain acts in any commercial establishment that sold alcohol.The prohibited acts centered around the showing of sexual acts or genitalia in graphic representations,such as pictures or film. Kraimer owned an adult business covered by the ordinance.Kraimer sued, arguing the ordinance was unconstitutional because it was overbroad and applied to conduct the city could not legitimately regulate out of concern for harmful secondary effects. DECISION:Decision in favor of Kraimer. The ordinance was overbroad.It made no exceptions for live performances with serious artistic,social,or political value,or for exhibitions of serious films or artworks. The court determined the ordinance included activities and establishments that could not plausibly be believed to cause negative secondary effects,such as graphic representations of prohibited body parts produced with serious artistic or educational intent or live performances of artistic or social merit. As written,the ordinance applied too broadly to a range of establishments, and it prohibited performances that occurred infrequently.. The court concluded the ordinance was flawed because it was confined to "sexually-oriented businesses"and did not apply only to businesses that"regu- larly feature"sexually-oriented entertainment. For example,on its face,the ordinance would apply to a meeting of pediatri- cians at a local motel conference room attending a presentation on recognizing the signs of child abuse if alcohol was served in the motel's bar.It would also apply to serving wine at the opening of an art exhibit,if nude people were the subject of any sculpture or painting. Facilities that did not regularly feature sexually-oriented entertainment would not want to put their liquor licenses at risk by allowing activities or images on their premises that might be covered by the ordinance. Instead, these establishments would be impelled to act as a government censor to protect themselves. Ultimately,such an ordinance was unconstitutional. see also:Blue Canary v City of Milwaukee, 270 F.3d 1156(2001). see also: City of Los Angeles a Alameda Books Inc., 535 U.S. 425, 122 S.Ct. 1728, 152 L.Ed.2d 670(2002). ©2004 Quinlan Publishing Group.Any reproduction is prohibited.For more information please call(617)542-0048. ZDning Bu letin ' VOLUME 53,NUMBER I • JANUARY 25,2005 in this issue: --� Adult Entertainment—Holder of liquor license must get prior approval before providing entertainment ............. Page 2 Nuisance—Property covered in abandoned and rusting junk ............................................................................... Page 3 Taking—Landowner claims city encouraging Opry 1, ...................................................................................... Page 4 Variance—Variance granted for large advertising sign ...................................................................................... Page 4 Subdivision—Developer claims land use fits agricultural exemption....................................................................... Page 5 Conditional Use—City denies permit to proposed crematorium................................................................... Page 6 Conditional Use—Landowner wants to develop gas station in water-recharge area ...................................... Page 7 Publisher:Dennis Hofmaier. Managing Editor:Julie DiMauro,Esq. Editor in Chief: Lesley Rosenbloom,Esq. Editors:Annie Archambault, Carol Johnson Perkins,Esq., Elizabeth Purcell, Esq., Delora Skelton, Laura Starczewski,Esq., Heidi Taylor, Colin A.Thakkar, Esq., Ryan Wood Contributor:Alexander D.Ruskell,Esq. The publisher is not engaged in rendering legal or other professional advice and assumes no responsibility for the statements and opinions of the contributing writers or editors.Case law and statutes change without notice from time to time and are often specific to onejurisdiction onty.The information herein is not intended to be,nor should it be considered, a substitute for legal or professional advice rendered by a competent attorney or other professional.If you have any questions about the application of issues raised herein to your particular situation,seek the advice of a competent attorney or other professional.The entire content of this newsletter is copyrighted by the publisher and may not be copied without prior permission.Contact Copyright Clearance Center(978)750-8400 for permission to photocopy for internal use.Contact publisher for other reprint requests. We respect your privacy.If you do not want your name used for future offerings of related products or for products from third parties,please let us know by sending us your complete name and address. Published by �j� QUMAN l ULLISH NG GROUP Agent for Quinlan Publishing Co. ZONING BULLETIN ISSN 0514-7905 (print) 1544-5836(online) 23 Drydock Ave.,Boston,MA 02210-2387 (617)542-0048 fax:(617)507-1079 email: info @quinlan.com http://www.quinlan.com Copyright @2005 Page 2—January 25,2005 Z.B. . Ad-ulf Ennfie–r ment—flolder of liquor_lieense must get prior-approval - -- – hefore p vrrovnro ding enter-tainment --- Exotic dancing requests denied after several alcohol violations Citation:Kings Grant Inn a Town of Gilford, U.S.District Court for the District of New Hampshire,No. 03-249-SM(2004) NEW HAMPSHIRE(11/19/04)—King's Grant Inn was a bar and restaurant, operating under a New Hampshire liquor license. Consequently,it had to re- ceive written authorization from the town before it could provide entertainment of any type. King's Grant was given several warnings involving liquor-law violations. Over a period of several months, King's Grant asked the town selectmen to authorize exotic dancing on seven separate occasions. All of the permit re- quests were authorized. However, when a new selectman joined the town's licensing authority,he refused to authorize any of King's Grant's exotic danc- ing requests because of King's Grant's history of alcohol violations. King's Grant sued,arguing the licensing policy resulted in an unconstitu- tional restraint on its free speech rights. DECISION:Judgment in favor of King's Grant. The town had to,prove that its regulation was not a facially unconstitu- tional and invalid prior restraint on protected speech. ` The court stated the town's policy was not a zoning ordinance aimed at restricting exotic dancing to particular geographic locations to protect the town from the secondary effects often associated with such entertainment. Rather, the town's policy was closer to a licensing scheme that effectively operated as a form of prior restraint on a particular type of artistic speech. The town showed no evidence that,before enacting the policy,it collected or examined evidence pertaining to likely adverse secondary effects of exotic dancing.Moreover,the town did not identify aiiy legally-sufficient secondary effects or problems resulting from exotic dancing.Finally, there was no evi- dence liquor-law violations resulted from exotic dancing performances. A law subjecting the exercise of First Amendment freedoms to the prior restraint of a license,without narrow,objective,and definite standards to guide the licensing authority, was unconstitutional. Without the constraint of specific standards to guide the decision-maker in judging whether or not a license should issue, an impermissible danger existed that a government official could decide to exercise his or her judgment to suppress speech he or she personally found distasteful or that an applicant could feel compelled to censor his or her own speech. Because the selectmen seemed to have had unfettered discretion under the liquor-licensing scheme, the liquor policy appeared unconstitutional without further information from the town. r see also:Fly Fish Inc. v. City of Cocoa Beach, 337 F.3d 1301 (2003). i ©2005 Quinlan Publishing Group.Any reproduction is prohibited.For more information please call(617)542.0048. 03/21/2003 06:36 3056687356 CITY OF SOUTH MIAMI PAGE 01 �f M Y11FPl7kiTCI City of South Miami W.AJ[BOLA BALOGUN,REM 4795$W 75T"AMWE ")LTC WORKS MECTOR SOUTH XAMI.FLORIDA 33155 305/6636350 PAX 668-7206 March 21,2003 Mr.Robert Miller Fax:305663-9676 FIRST FLORIDA 5900 S.W._73rd Street - Miami,Fl 33143 RE: South Mice Apartments/ Dear Mr.Miller: Thank you for your recent efforts to improve traffic control and safety within the public right-of-way adjacent to the above-referenced project. We understand that construction activities involving numerous subcontractors can be quite challenging. )`However,this department still has a very serious concern that enough is not being done to ensure the safety of the motorists,pedestrians,and the construction workers,where maintenance of traffic is concerned. Construction workers are not adhering to the approved MOT plans and City staff is constantly having to request adjustments in the field. This situation has been an on-going problem for about three (3)weeks now and we desperately need to resolve this issue in the interest of public safety. The Public Works Department is counting on you and your staff,the General Contractor,to ensure that traffic is properly maintained on all corridors surrounding this project. This responsibility extends to your subcontractors as well as your own staff. We are making this request not only because it is a condition of your permit to construct this project within the City,but also because we are interested in allowing the general public to conduct their daily activities safely and with as little inconvenience as possible. In a final effort to ensure that a resolution can be reached on this issue,I would like to schedule a meeting with you here at the Public Works/Engineering&Construction Department first thing next week. Please contact me at(305)668-7354 or(305)663-6350 to arrange a specific time and date.Thank you for your cooperation. Sincerely, Greg Perry,P.E. Engineering and Construction Operations Manager City of South Miami CC: Ajibola Balogun,REM,Public Works Director Sanford Youkilis,Acting City Manager Subrata Hasu,AIA,AICP,CRA Director CITY OF SOUTH MIAMI BUILDING DEPARTMENT 6130 SUNSET DRIVE, SOUTH MIAMI,FLORIDA 33143 (305) 663-6355 2/28/02 Mr. Michael J. Getz Development Director J. W. Harris & Company 2665 S. Bayshore Drive, Suite 702 Coconut Grove, Fl. 33133 Dear Mr. Getz, This is to confirm our discussion today of required inspections for the proposed apartment building. We have located an inspector who can make a commitment to the extraordinary demand for inspection services required by the tunnel construction method that you have chosen to use. I'lis inspector is well qualified and has been certified by the Dade County Board of Appeals as a Building/Structural Inspector for the City. He is also familiar with this construction method and will keep the process running smoothly. Since this is a threshold building, you will sill be required to provide your own special inspector for the project. The City's Permit Fee Schedule establishes a fee of $125 per hour with a minimum of three hours per inspection request. Since this is a special project with special services required we have estimated that the City can accomplish this task at a much lower fee of$85 per hour with a three hour minimum per inspection request. This will be the cost to the developer for this special service. If you have any questions please call me at 305-663-6355. Sincerely, Sonia Lama, IA Building Director c. Charles Scurr, City Manager Subrata Basu, Assistant City manager