[DRAFT SUBJECT TO CHANGE] DECLARATION OF COVENANTS, CONDITIONS, EASEMENTS, RESTRICTIONS AND RESERVATIONS FOR NEXUS CONDOMINIUM

Transcription

1 Return To: Stoel Rives LLP 600 University Street, Suite 3600 Seattle, WA Attn: Joseph P. McCarthy (206) [DRAFT SUBJECT TO CHANGE] DECLARATION OF COVENANTS, CONDITIONS, EASEMENTS, RESTRICTIONS AND RESERVATIONS FOR NEXUS CONDOMINIUM Grantor: Grantee: Abbr. Legal Description 1200 Howell Street LLC Nexus Condominium Lots 1&2, Block 55, Second Add. to Town of Seattle, Vol. 1 of Plats, P Full legal description is on Exhibit A. Assessor s Parcel No ; The Survey Map and Plans for this condominium were recorded in King County, Washington simultaneously with the recording of this Declaration under Recording No.. DEPARTMENT OF ASSESSMENTS Examined and approved this day of, 20 ASSESSOR DEPUTY ASSESSOR

2 TABLE OF CONTENTS ARTICLE 1 DEFINITIONS Act Allocated Interests Alterations Architectural Committee Architectural Guidelines Articles Assessments Association Association Governing Documents Board of Directors and Board Building or Buildings Building Exterior Bylaws Commercial Component Commercial Director Commercial Handbook Commercial Limited Common Elements Commercial Tenant Commercial Unit Commercial Unit Owner Commercial Voting Power Common Elements Common Expense Liability Common Expenses Common Ownership Interest Component Condominium Customer Declarant Declaration Development Rights Eligible Mortgagee Floor Area Guest Suite Land Loading Bay Limited Common Elements Maintenance Responsibility Chart Manager Member i-

3 1.43 Mortgage Mortgagee Mortgagee of the Condominium Owner Parking Garage Parking Spaces Property Residential Component Residential Handbook shall mean the Rules and Architectural Guidelines adopted by the Association with respect to the Residential Component Residential Limited Common Elements Residential Unit Residential Unit Owner Residential Users Residential Voting Power Rules Shell and Core Special Declarant Rights Specially Allocated Expenses Storage Lockers Supermajority Vote Survey Map and Plans Total Voting Power Transition Date Unit or Units Unit Owner Utility Facilities Voting Interest... 8 ARTICLE 2 NAMES OF CONDOMINIUM AND ASSOCIATION... 8 ARTICLE 3 CERTIFICATE OF SUBSTANTIAL COMPLETION... 8 ARTICLE 4 DESCRIPTION OF REAL PROPERTY... 8 ARTICLE 5 UNITS Number of Units Types of Units Identification of Units Physical Characteristics of Commercial Units Physical Characteristics of Residential Units Unit Boundaries Alterations of Units and Common Elements Subdivisions and Combinations of Units Access to Common Elements and Public Streets ii-

4 ARTICLE 6 ALLOCATED INTERESTS ARTICLE 7 COMMON ELEMENTS Description Conveyance and Encumbrance of Common Elements Incorporation of Common Element into Unit Other Common Element Conveyances without Unit Void ARTICLE 8 LIMITED COMMON ELEMENTS Description Commercial Limited Common Elements Residential Limited Common Elements Parking Spaces and Storage Lockers Reservation of Use Reallocation Between Commercial Units Reallocation Between Residential Units Conversion of Common Element to Limited Common Element Conversion of Limited Common Element to Common Element Incorporation of Limited Common Element into Unit ARTICLE 9 EASEMENTS ARTICLE Service Facilities Access and Utilities Declarant Functions Association Functions Encroachments Support Elevator Use Restroom in Unit CONDUCT RESTRICTIONS AND USE RESTRICTIONS Use Restrictions Applicable to Residential Units Conduct Restrictions Applicable to Residential Units Use Restrictions Applicable to Commercial Condominiums Conduct Restrictions Applicable to Commercial Condominiums Conduct Restrictions Applicable to Residential and Commercial Units ARTICLE 11 ARCHITECTURAL REVIEW Architectural Committee Approval Organization iii-

5 11.3 Designation of Members and Terms of Office Duties Meetings Scope Architectural Guidelines Performance of Construction Inspection and Correction of Work Estoppel Certificate Appeal Compensation Liability Non-Applicability to Declarant or Association Amendments Variances ARTICLE 12 SPECIAL DECLARANT RIGHTS Declarant s Right to Add or Complete Improvements Declarant s Right to Maintain Sales and Lease Facilities Declarant s Right to Use Easements Declarant s Right to Control the Association Declarant s Development Rights Termination of Special Declarant Rights Declarant s Liability for Unsold Units ARTICLE 13 ASSOCIATION Formation of Association Association Bylaws Association Membership Transfer of Memberships Association Voting Authority of Association Borrowing by Association Association s Records and Funds Termination of Contracts and Leases Association as Trustee Association Meetings, Notices and Quorums Board Board Quorum Board Voting Limitation of Board s Liability No Personal Liability for Decisions Indemnification of Board and Officers ARTICLE 14 ASSESSMENTS Owners Obligations iv-

6 14.2 Common Expenses Assessment Authority Budget Reserve Funds Commencement of Assessments Allocation of Assessments Working Capital Contribution for Residential Units Assessment Certificates ARTICLE 15 ASSOCIATION S RIGHTS AND REMEDIES Enforcement Access to Property Acceleration of Assessments Owner Liability Mortgagee Liability Lien for Assessments Late Charges Limitation on Actions ARTICLE 16 [INTENTIONALLY OMITTED] ARTICLE 17 ORDINARY MAINTENANCE AND REPAIR Maintenance Obligations Units Common Elements Association Responsibility ARTICLE 18 INSURANCE Required Policies Coverage Not Available Required Provisions Claims Adjustment Owner s Additional Insurance Certificate Notification on Sale of Unit Responsibility for Deductibles and Uninsured Amounts ARTICLE 19 REPAIR OF SIGNIFICANT DAMAGE Definitions Initial Board Determinations Notice of Determinations Duty to Restore Board s Authority Damage Not Restored Reallocation of Allocated Interests v-

7 ARTICLE 20 CONDEMNATION ARTICLE Condemnation of Units Partial Unit Condemnation Common Element Condemnation Association to Represent Owners Recording of Judgment PROTECTION OF COMMERCIAL UNIT OWNERS AND TENANTS Tenant Protection Provisions Owner Protection Provisions Amendments ARTICLE 22 PROTECTION OF MORTGAGEES No Impairment of Mortgages Amendments to Declaration, Bylaws and Rules Termination of Condominium Mortgagee Approval Requirements Copies of Notices Mortgagee Liability for Assessments Insurance Requirements Conflicts and Controlling Provisions ARTICLE 23 AMENDMENTS In General Execution Recording Voting Rights Commercial Unit Owners Vote General Limitations Special Declarant, Development and Related Rights Challenge to Validity Survey Map and Plans Amendment Amendment by Declarant ARTICLE 24 TERMINATION ARTICLE 25 CONSTRUCTION AND INTERPRETATION Liberal Construction Interpretation to Conform to Mixed-Use Objectives Immaterial Defects Partial Invalidity Consistent with Act Captions and Exhibits Adjustments for Inflation vi-

8 25.8 Rule Against Perpetuities Conflicts Among Act, Declaration and Bylaws Natural Persons No Waiver of Strict Performance Delivery of Notice ARTICLE 26 EFFECTIVE DATE Effective Date vii-

9 DECLARATION OF COVENANTS, CONDITIONS, EASEMENTS, RESTRICTIONS AND RESERVATIONS FOR NEXUS CONDOMINIUM THIS DECLARATION is made and executed this day of, by 1200 HOWELL STREET LLC, a Washington limited liability company, the sole holder of fee simple title to the Property hereinafter described, pursuant to the provisions of the Washington Condominium Act, Chapter of the Revised Code of Washington, as amended. WITNESSETH: The purpose of this Declaration is to submit the Property, and any additional real property which may in the future be submitted to this Declaration, to the condominium form of ownership and use pursuant to the Act and to establish for Declarant s benefit and for the mutual benefit of all future owners or occupants of the Property, or any part thereof, certain easements and rights in, over and upon the Property and certain mutually beneficial restrictions and obligations with respect to the use, occupancy and maintenance thereof. Declarant intends that all Unit Owners, Mortgagees, occupants, and all other persons acquiring any interest in the Property, and any additional real property which may in the future be submitted to this Declaration, shall hold their interests subject to the rights, easements, privileges, restrictions and reservations hereinafter set forth. NOW, THEREFORE, all of the Property, and any additional real property which may in the future be submitted to this Declaration, shall be held, used, conveyed, encumbered, leased, rented, occupied and improved subject to the following covenants, conditions, restrictions, uses, limitations, obligations and reservations, all of which are declared and agreed to be in furtherance of the division of portions of the Property into Units and Common Elements and shall be deemed to run with the Land and bind and benefit Declarant, its successors and assigns, and any and all persons acquiring or owning an interest in and to any portion of the Property, their grantees, successors, heirs, executors, administrators and assigns. ARTICLE 1 DEFINITIONS Certain terms, as used in this Declaration, shall be defined as follows, unless the context clearly indicates a different meaning thereof. Any terms used in this

10 Declaration which are not herein defined shall have the meanings set forth in the Act. 1.1 Act shall mean the Washington Condominium Act, Chapter of the Revised Code of Washington ( RCW ), as amended from time to time. 1.2 Allocated Interests shall mean the Common Ownership Interest, the Common Expense Liability and the Voting Interest allocated to each of the Units in the Condominium. The formulas used to determine the Allocated Interests are set forth in Article 6. The actual Allocated Interests are set forth in Schedule E. 1.3 Alterations shall mean all structures and improvements of every type or kind installed or erected on the Property, or any alteration or modification to a Unit or Common Element or any additions thereto, including, without limitation, room partitions, structural alterations to any portion of a Unit or Common Element surrounding the Unit, any additions or alterations to a Unit which cause penetrations beyond the unfinished surfaces of the walls, ceilings or surface flooring of a Unit or impact or affect in any manner any Common Element within the Building, changes of level, grade or drainage patterns or any Limited Common Element, patio covers, screen walls, skylights, stairs, decks, window tinting, plantings and potted plants, paving, tiling or other covering of any patio, deck or balcony areas, utility facilities, poles, signs, and all other structures or improvements of every type and kind installed or erected on the Property. 1.4 Architectural Committee shall mean the committee which may be created under Article Architectural Guidelines shall mean the design criteria adopted by the Association pursuant to Article 11, which are included in the Residential Handbook and the Commercial Handbook, as applicable. 1.6 Articles shall mean the articles of incorporation of an Association, as amended from time to time. 1.7 Assessments shall mean all sums chargeable by the Association against a Unit, including, without limitation, (a) regular and special assessments for Common Expenses, charges and fines levied by the Association; (b) interest and late charges on any delinquent account; and (c) costs of collection, including reasonable attorneys fees, incurred by the Association in connection with the collection of a delinquent Owner s account. 1.8 Association shall mean the owners association for the Condominium established pursuant to the Act, this Declaration and the Articles

11 1.9 Association Governing Documents shall mean this Declaration, the Articles, Bylaws, Residential Handbook, Commercial Handbook and Rules as they may be amended from time to time Board of Directors and Board shall each mean the governing body of the Association elected pursuant to its Bylaws Building or Buildings shall mean the structure or structures upon the Land which contain Units Building Exterior shall mean the building enclosure as defined in RCW Bylaws shall mean the bylaws of an Association, as amended from time to time Commercial Component shall mean the Commercial Units and the Commercial Limited Common Elements and any fixtures or equipment that exclusively serve the Commercial Units Commercial Director shall mean the director elected to the Board by the Commercial Unit Owners pursuant to this Declaration Commercial Handbook shall mean the Rules and Architectural Guidelines, if any, adopted by the Association with respect to the Commercial Component Commercial Lease shall mean a lease of a Commercial Unit Commercial Limited Common Elements shall have the meaning given that term in Section Commercial Tenant shall mean the lessee of a Commercial Unit Commercial Unit shall mean a Unit designated as a commercial unit on Exhibit C, and all Units created through future subdivision of the initial Commercial Unit(s) Commercial Unit Owner shall mean the Owner of a Commercial Unit Commercial Users shall mean the Owners and Commercial Tenants of a Commercial Unit and their respective Customers, employees, agents, invitees and licensees Commercial Voting Power shall mean that portion of the Total Voting Power that is allocated to the Commercial Units

12 1.24 Common Elements shall mean all those portions of the Property which are not part of the Units Common Expense Liability shall mean the liability for Common Expenses (other than Specially Allocated Expenses) allocated to each Unit, as described in Article Common Expenses shall mean all expenditures made by or financial liabilities of the Association, including any allocations to reserves. Some Common Expenses are allocated to the Units according to the Common Expense Liability of the Unit. Other Common Expenses are Specially Allocated Expenses Common Ownership Interest shall mean the undivided ownership interest in the Common Elements allocated to each Unit, as described in Article Component shall mean the Commercial Component or the Residential Component, as the context in which such term is used requires Condominium shall mean the Nexus Condominium created by this Declaration, as it may be amended Customer shall mean any customer or client that comes onto the Property for the business uses conducted in any Commercial Unit Declarant shall mean 1200 Howell Street LLC, or any other person so defined in the Act Declaration shall mean this instrument by which the Condominium is established pursuant to the Act, as amended from time to time Development Rights shall mean any right or combination of rights reserved in this Declaration for the benefit of the Declarant to: (a) add real property or improvements to the Condominium; (b) create Units, Common Elements or Limited Common Elements within the real property initially included in, or subsequently added to, the Condominium; (c) subdivide or combine Units or convert Units into Common Elements; (d) withdraw real property from the Condominium; or (e) reallocate Limited Common Elements with respect to Units that have not then been conveyed by the Declarant; and execute and record amendments to this Declaration to do so, all as and to the extent more specifically set forth in this Declaration Eligible Mortgagee shall mean (a) the Mortgagee of the Condominium and (b) an eligible mortgagee as defined in the Act Floor Area shall mean the area of a Unit expressed in square feet as reflected in Sections 5.4 and 5.5 and Exhibits C and D

13 1.36 Guest Suite shall mean any Residential Unit acquired by the Association for the use of guests of Residential Unit Owners, during any time that such Unit is owned or leased by the Association Land shall mean the real property described in Exhibit A attached hereto Loading Bay shall mean the loading area and related entry thereto as shown on the Survey Map and Plans Limited Common Elements shall mean those portions of the Common Elements which are reserved or allocated in this Declaration or by the Declarant for the use of the Owners of one or more, but less than all, of the Units Maintenance Responsibility Chart means Exhibit B attached hereto and incorporated herein which designates the portions of the Condominium to be maintained by the Association and the Owners, respectively. The Maintenance Responsibility Chart may be further modified or supplemented by an amendment to the Declaration Manager shall mean a person or entity engaged by a Board on behalf of an Association to assist in administration or management of the Condominium or a Component Member shall mean each Unit Owner Mortgage shall mean a recorded mortgage, deed of trust, or real estate installment sales contract against the Condominium or any portion thereof or any security interest granted by the Declarant in any of its membership interests Mortgagee shall mean the mortgagee, beneficiary, creditor or vendor in a Mortgage, including the assignees of the interests so held. The Mortgagee of the Condominium is included within the definition of Mortgagee Mortgagee of the Condominium shall mean the holders of Mortgages on the Property which this Declaration affects, which Mortgages have been recorded prior to the recordation of this Declaration. The term Mortgagee of the Condominium shall not include the holder of a Mortgage against one Unit Owner shall have the same meaning as Unit Owner Parking Garage shall mean the structured parking area at the base of the Building Parking Spaces shall mean the individual parking spaces located in the Parking Garage

14 1.49 Property shall mean the Land and all improvements thereon to the extent the same are included within the Condominium, together with all easements, rights and appurtenances now and hereafter belonging thereto Residential Component shall mean the Residential Units and the Residential Limited Common Elements and any fixtures or equipment that exclusively serves the Residential Units Residential Handbook shall mean the Rules and Architectural Guidelines adopted by the Association with respect to the Residential Component.Residential Limited Common Elements shall have the meaning given that term in Section Residential Unit shall mean a Unit designated as a residential unit on Exhibit D, and all Units created through future subdivision of the initial Residential Unit(s) Residential Unit Owner shall mean the Owner of a Residential Unit Residential Users shall mean the Owners and occupants of a Residential Unit and their respective guests Residential Voting Power shall mean that portion of the Total Voting Power that is allocated to the Residential Units Rules shall mean the rules and regulations adopted by the Association, as amended from time to time Shell and Core shall mean the Building Exterior, together with fireproofing, insulation, support panels and studs, all elevator shafts and stairways, and all the Building s structural elements, including foundations, bearing walls, shear walls, pillars, beams, braces and ceiling and floor slabs Special Declarant Rights shall mean any right or combination of rights reserved in this Declaration for the benefit of the Declarant to (a) complete improvements indicated on the Survey Map and Plans; (b) exercise any Development Rights; (c) maintain sales and leasing offices, management offices, signs advertising the Condominium and model Units; (d) reserve, grant and use easements through the Common Elements for the purpose of making improvements within the Condominium or within real property that may be added to the Condominium, or to provide access to and from other properties; (e) merge the Condominium with any other condominium or development; (f) make the Condominium subject to a master association; or (g) appoint or remove any officer or director of the Association, or to veto or approve a proposed action of the Board of Directors or Association

15 1.60 Specially Allocated Expenses shall mean those Common Expenses described in Section of this Declaration Storage Lockers shall mean the individual storage lockers located in the areas shown on the Survey Map and Plans Supermajority Vote shall mean, for any of the matters specified in Section 23.5, any vote of the Unit Owners having the requisite number for approval of the matter voted upon Survey Map and Plans shall mean the survey map and plans of the Condominium simultaneously recorded herewith, as amended from time to time, which are incorporated into this Declaration by this reference Total Voting Power shall mean all of the votes allocated to the Units, except for any Unit owned by the Association, irrespective of other conditions precedent to voting and regardless of the number of votes represented at any meeting Transition Date shall mean the date that is the earlier of (i) sixty (60) days after conveyance of seventy-five percent (75%) of the Units that may be created in the Condominium, including Units later created, to Owners other than the Declarant, (ii) two years after the last conveyance or transfer of record of a Unit except as security for a debt, or (iii) two years after the last exercise of any Development Right to create Units Unit or Units shall mean, singularly or in plural, those areas of the Condominium which are not owned in common with all Unit Owners and are intended for use solely by the persons holding title thereto and their respective tenants, licensees and invitees Unit Owner shall mean the person or persons holding fee simple title to a Unit of record Utility Facilities shall mean any and all utility facilities serving the Condominium including intake and exhaust systems, backflow preventers, storm and sanitary sewer systems, drainage systems and pollution control devices, common ducting systems for ventilation and utility services, domestic water systems, natural gas systems, heating and air conditioning systems, electrical systems, fire protection water and sprinkler systems, telephone systems, cable television systems, telecommunications systems, satellite communication systems, water systems, sump pumps, pool equipment, central utility services and all other utility systems and facilities reasonably necessary to service any improvement situated in, on, over and under the Condominium

16 1.69 Voting Interest shall mean the votes allocated to each Unit, as described in Article 6. ARTICLE 2 NAMES OF CONDOMINIUM AND ASSOCIATION The name of the Condominium is the Nexus Condominium. The name of the Association is the Nexus Condominium Association. ARTICLE 3 CERTIFICATE OF SUBSTANTIAL COMPLETION The Declarant hereby certifies pursuant to RCW (2) that all of the structural components and mechanical systems of all buildings containing or comprising any Units that are created by this Declaration have been substantially completed. ARTICLE 4 DESCRIPTION OF REAL PROPERTY The legal description of the real property included in the Condominium is set forth in Exhibit A attached hereto. ARTICLE 5 UNITS 5.1 Number of Units. This Declaration creates three hundred ninety two (392) Units. The Declarant reserves the right to create or add additional Units in the manner described in this Declaration. 5.2 Types of Units. At the Effective Date of this Declaration, the Condominium contains two (2) Commercial Units and three hundred eighty-two (390) Residential Units. 5.3 Identification of Units. The Commercial Units are identified by the unit numbers set forth in Exhibit C attached hereto. The Residential Units are identified by the unit numbers set forth in Exhibit D attached hereto. The location and configuration of each Unit is shown on the Survey Map and Plans. 5.4 Physical Characteristics of Commercial Units. The approximate Floor Area of each Commercial Unit and the level(s) of the Building upon which it is located are set forth in Exhibit C attached hereto. 5.5 Physical Characteristics of Residential Units. The approximate Floor Area and the number of whole or partial bathrooms, bedrooms and fireplaces in

17 each Residential Unit and the level of the Building upon which it is located are set forth in Exhibit D attached hereto. 5.6 Unit Boundaries Boundary Descriptions. The boundaries of the Units are shown on the Survey Map and Plans and are the perimeter walls, floors and ceilings of the Units. All lath, furring, plaster, wallboard, plasterboard, paneling, tiles, wallpaper, paint, finished flooring and any other materials constituting any part of the finished surfaces thereof are part of the Unit. The boundaries of some Units encompass a heat pump. Except for Common Elements described in Section 7.1, all spaces, interior partitions, and other fixtures and improvements within the boundaries of a Unit are a part of the Unit Physical Boundaries Controlling. The physical boundaries of a Unit constructed in substantial accordance with the original Survey Map and Plans shall constitute its boundaries rather than the metes and bounds, dimensions or areas expressed in the Survey Map and Plans, regardless of settling or lateral movements of the Building or minor variances between boundaries shown on the Survey Map and Plans and those of the Building Relocation of Unit Boundaries. Subject to the provisions of this Declaration and other provisions of law, the boundaries between adjoining Units may only be relocated by an amendment to this Declaration upon the affected Unit Owners application to the Board. If the Owners of the adjoining Units have specified a reallocation between their Units of their Allocated Interests, the application must state the proposed reallocations. Unless the Board determines within thirty (30) days after receiving the application in writing that the reallocations are unreasonable, the Board shall prepare an amendment that identifies the Units involved, states the reallocations, is executed by those Unit Owners, contains words of conveyance between them, and is recorded in the name of the grantor and the grantee. The Board shall obtain and record an amendment to the Survey Map and Plans complying with the requirements of RCW (4) necessary to show the altered boundaries between adjoining Units and their dimensions and identifying numbers. 5.7 Alterations of Units and Common Elements. Alterations to the Residential Units, Commercial Units and Common Elements may be made only in accordance with Article 11 of this Declaration. 5.8 Subdivisions and Combinations of Units. Except for the Declarant s exercise of Development Rights, no Unit may be subdivided into a greater number of Units or Units combined into a lesser number of Units, whether by agreement, legal proceedings or operation of law, except as provided in this Section

18 5.8.1 Commercial Units. Commercial Unit 100 may be subdivided into two (2) Units. Any Units formed by the prior subdivision of Commercial Unit 100 may be combined into a single Unit. Any such Units previously combined into those Units may be subdivided into the same number of Units that existed before the combination. All of the foregoing may be accomplished in any manner permitted by the Act, and with the approval of the Board or Architectural Committee in accordance with Article Residential Units. To the extent permitted by the Act, Residential Units may be combined with the approval of the Board or Architectural Committee in accordance with this Section and Article 11. Residential Units that were previously combined may, with the approval of the Board or Architectural Committee, be subdivided into the same number of Units that existed before the combination. Residential Units may not otherwise be subdivided. After acquiring an adjoining Unit or an adjoining part of an adjoining Unit the Owner may, with the approval of the Board or Architectural Committee, remove or alter an intervening partition or create apertures therein, even if the partition in whole or in part is a Common Element, if those acts do not adversely affect the structural integrity or mechanical or electrical systems or lessen the support of any portion of the Condominium. Removal of partitions or creation of apertures under this section is not a relocation of Unit boundaries. The Unit Owner s request for Board approval shall be sent by certified mail with a return receipt requested, and include complete plans and specifications for the proposed removal or alteration. The Board shall approve such request within sixty (60) days after receiving such request in writing and the plans and specifications unless the proposed alteration does not comply with the Act or this Declaration, violates any of the Association Governing Documents, or impairs the structural integrity or mechanical or electrical systems in the Condominium; provided, however, that if the Unit Owner has not received a response from the Board within such sixty (60) day period, the Unit Owner shall send a supplemental notice to the Board within ten (10) days of the expiration of such sixty (60) day period, and the Board shall have ten (10) days after receipt of such supplemental notice to respond to the initial request. The failure of the Board to respond to a request that it is required to approve within such eighty (80) day period shall be deemed its approval thereof Allocated Interests. The Allocated Interests formerly allocated to the Units that are to be subdivided shall be reallocated to the newly created Units in any reasonable and equitable manner prescribed by that Owner of the Units to be subdivided. The Allocated Interests of the new Unit or Units resulting from a combination of Units shall be the aggregate of the Allocated Interests formerly allocated to the Units being combined Amendments to Declaration and Survey Map and Plans. The Association shall obtain and record amendments to this Declaration and the

19 Survey Map and Plans required by any subdivision or combination that is duly approved pursuant to or permitted by this Declaration. 5.9 Access to Common Elements and Public Streets. Each Unit has direct access to a portion of the Common Elements or to public rights of way, and all of the Common Elements have access to public rights of way, and Unit Owners shall have unrestricted ingress to and egress from their respective Units. ARTICLE 6 ALLOCATED INTERESTS This Declaration allocates certain interests ( Allocated Interests ) in the Condominium to each Unit. The Allocated Interests are: a Common Ownership Interest, a Common Expense Liability and a Voting Interest. The formulas used for allocating these interests are set forth in this Article 6. The Allocated Interests can only be changed as provided in this Declaration. The Allocated Interests may not be separated from, or conveyed separately from, the title to a Unit, whether voluntarily or involuntarily, except in conformity with this Declaration. The Allocated Interests shall be deemed to be conveyed with the Unit to which they are allocated even though the description in the instrument of conveyance may refer only to the title to the Unit. The Common Ownership Interests are allocated to the Units as follows: based on a fraction, the numerator of which is the Floor Area of the Unit and the denominator is the aggregate Floor Area of all the Units. The Common Expense Liabilities are allocated to the Units as follows: based on a fraction, the numerator of which is the Floor Area of the Unit and the denominator is the aggregate Floor Area of all the Units. The Voting Interests are allocated to the Units as follows: equally among the Units, with one vote per Unit. Based upon the foregoing formulas, the Allocated Interests of the Units are set forth in Exhibit E attached hereto. The Allocated Interests of the Units set forth on Exhibit E may be subject to rounding adjustments needed to achieve a total of one hundred percent (100%), to address unintended results, or to avoid minor distinctions between Units. If Declarant exercises a Development Right to create additional Units, the Allocated Interests of the Units will be re-allocated using the same formulas. The foregoing notwithstanding, for the purposes of allocating those Common Expenses that relate solely to one of the Components, the Common Expense Liability of the Commercial Units shall be the ratio that each Commercial Unit s Allocated Interest for Common Expenses bears to the total of such Allocated Interests for the Commercial Units, and the Common Expense Liability of each of the Residential Units shall be the ratio that each Residential Unit s Allocated Interest for Common Expenses bears to the total of such Allocated Interests for the Residential Units

20 Declarant shall have the right to unilaterally recalculate the Allocated Interests and amend the Declaration and the Survey Map and Plans if the Allocated Interests are incorrect for any reason, including differences between estimated and as-built Unit areas, changes in the data used to calculate the Allocated Interests, changes in Unit configuration or boundaries, the combination or subdivision of Units, or clerical errors in the Survey Map and Plans or Declaration. ARTICLE 7 COMMON ELEMENTS 7.1 Description. The Common Elements are all portions of the Condominium other than the Units. The Common Elements include all portions of the walls, floors, or ceilings that are not a part of, or within, the Unit boundaries established by Section The Common Elements also include any chute, flue, duct, wire, conduit, bearing wall, bearing column, roofing, drain or any other fixture that lies partially within and partially outside the designated boundaries of a Unit if it serves more than one Unit or any portion of a Common Element 7.2 Conveyance and Encumbrance of Common Elements Required Approvals. Portions of the Common Elements which are not necessary for the habitability of any Residential Unit or the use of any Commercial Unit for its intended purpose may be conveyed or subjected to a security interest by the Association if the Mortgagee of the Condominium, the Owners of Units to which at least eighty percent (80%) of the Commercial Voting Power and at least eighty percent (80%) of the Residential Voting Power, in each instance excluding the votes allocated to Units owned by Declarant or an affiliate of Declarant, agree to that action; provided, however, all of the Owners of Units to which any Limited Common Element is allocated must agree in order to convey that Limited Common Element or subject it to a security interest. Proceeds of the sale or financing are an asset of the Association Agreement. An agreement to convey Common Elements or subject them to a security interest must be evidenced by the execution of an agreement, or ratification thereof, in the same manner as a deed, by the requisite number of Unit Owners. The agreement must specify a date after which the agreement will be void unless recorded before that date. The agreement and all ratifications thereof must be recorded in the county in which the Condominium is situated and shall be effective upon recording Association s Authority. The Association shall have all powers necessary and appropriate to implement the conveyance or encumbrance authorized pursuant to this section, including the power to execute deeds or other instruments

21 7.2.4 Rights of Support. A conveyance or encumbrance of Common Elements pursuant to this section shall not deprive any Unit of its rights of access and support Prior Encumbrances. A conveyance or encumbrance of Common Elements pursuant to this section shall not affect the priority or validity of preexisting encumbrances. 7.3 Incorporation of Common Element into Unit. The Owners of the Units to which at least sixty-seven percent (67%) of the Commercial Voting Power and at least sixty-seven percent (67%) of the Residential Voting Power is allocated, including the Owner of the Unit to which the Common Element will be incorporated, must agree to incorporate a Common Element into an existing Unit. Such incorporation shall be reflected in amendments to this Declaration and the Survey Map and Plans. 7.4 Other Common Element Conveyances without Unit Void. Except as otherwise provided in this Article 7, an Owner s interest in the Common Elements may be conveyed, encumbered, sold or transferred, voluntarily or involuntarily, solely as a part of a conveyance, encumbrance, sale or transfer of the Unit to which it is appurtenant and any attempt to do so without such a Unit transfer shall be void. ARTICLE 8 LIMITED COMMON ELEMENTS 8.1 Description. The following portions of the Common Elements are Limited Common Elements, all of which, to the extent not otherwise stated, are reserved for the exclusive use of the Commercial Users or Residential Users of the Unit or Units to which they are the most immediately adjacent or are herein allocated: (a) All portions of the Property designated as Limited Common Elements by the Act; (b) If any chute, fireplace box, flue, duct, wire, conduit, bearing wall, bearing column, or any other fixture lies wholly or partially within the designated boundaries of a Unit, any portion thereof serving only that Unit is a Limited Common Element allocated solely to the Unit, and any portion thereof serving more than one Unit or any portion of the Common Elements is a part of the Common Elements; and (c) Any shutters, awnings, canopies, window boxes, door-steps, stoops, balconies, patios, and all exterior doors and windows or other fixtures designed to serve a single Unit, but which are located outside that Unit s boundaries. Notwithstanding the foregoing, the canopies between the first and

22 second levels of the Building are not designed to serve a single Unit, and they are not Limited Common Elements. 8.2 Commercial Limited Common Elements. Except to the extent otherwise stated, the following portions of the Common Elements are Limited Common Elements allocated solely and jointly to the Commercial Units for the use of the Commercial Users: (a) The retail trash room, retail storage room and CLCE grease trap as shown on the Survey Map and Plans; (b) The outdoor areas designated as CLCE on the Survey Map and Plans, which are allocated, respectively, to each of the Commercial Units that they serve; Plans; and (c) Any other area designated as CLCE on the Survey Map and (d) Any chute, duct, wire, conduit, vent, fan, hood or any other fixture serving only the Commercial Units. The foregoing notwithstanding, any person in the Building may use the corridors and entrances referred to in this section in the event of a fire or other emergency. 8.3 Residential Limited Common Elements. Except to the extent otherwise stated, the following portion of the Common Elements are Limited Common Elements allocated solely and jointly to the Residential Units for the use of all of the Residential Users: (a) The RLCE storage area and the storage lockers shown on the Survey Map and Plans, which, to the extent they are allocated to individual Units by the Declarant, are reserved to the Residential Users of the Residential Units to which they are respectively allocated; (b) The RLCE elevators (and all associated machinery and equipment), RLCE lobbies, trash areas, stairs and corridors, and RLCE bicycle storage areas, as shown on the Survey Map and Plans; (c) The RLCE trash room and trash compactor located on level P1, as shown on the Survey Map and Plans; (d) The RLCE lobby, mail room and package room located on level 1, as shown on the Survey Map and Plans; and Plans; (e) The RLCE amenities on level 7, as shown on the Survey Map

23 (f) and Plans; and The RLCE amenities on level 41, as shown in the Survey Map Plans; and (g) Any other area designated as RLCE on the Survey Map and (h) Any chute, duct, wire, conduit, vent, fan, hood or any other fixture serving only the Residential Units. 8.4 Parking Spaces and Storage Lockers Parking Spaces. The user of the Parking Space has only a right to park within the striping of the Parking Space, subject to all easements and other rights and easements of the Association, Owners, Residential Users and Commercial Users. The identifying numbers and locations of the Parking Spaces are shown on the Survey Map and Plans. Certain Parking Spaces will be Limited Common Elements allocated to the Units specified from time to time in Exhibit F. Subject to Section Error! Reference source not found., Section , and Section Error! Reference source not found., any full size Parking Spaces that are not allocated as Limited Common Elements shall be Common Elements available as parking for visitors to the Residential Units, and any motorcycle Parking Spaces that are not allocated as Limited Common Elements shall be available as parking for Residential Users [or Commercial Users] Storage Lockers. The boundaries of the Storage Lockers are defined by the floors, walls and ceilings thereof. The identifying numbers and locations of the Storage Lockers are shown on the Survey Map and Plans. Certain Storage Lockers will be Limited Common Elements allocated to the Units specified, from time to time, in Exhibit G. 8.5 Reservation of Use. Except as otherwise stated herein, the Limited Common Elements are reserved for the exclusive use of the Commercial Users or Residential Users of the Units to which they are allocated in the Act and this Declaration. No portion of any of the Property may be reallocated as Limited Common Elements except as provided in this Declaration or the Act. 8.6 Reallocation Between Commercial Units. Except as provided elsewhere in this Declaration, a Limited Common Element may only be reallocated between Commercial Units by an amendment to this Declaration executed by the Owners of the Commercial Units to which the Limited Common Element was and will be allocated, which has been approved by the Board. The Board must approve the request of the Owner or Owners under this section within five (5) business days after receiving such request in writing unless the proposed reallocation does not comply with the Act or this Declaration. The failure of the Board to act upon a

24 request within such period shall be deemed approval thereof. The amendment shall be recorded in the names of the parties and of the Condominium. 8.7 Reallocation Between Residential Units. Except as provided elsewhere in this Declaration, a Residential Limited Common Element may only be reallocated between Residential Units by an amendment to this Declaration executed by the Owners of, and approved in writing by the Mortgagees holding Mortgages against, the Residential Units to which the Limited Common Element was and will be allocated, which has been approved by the Board. The Board shall approve the request of the Owner or Owners under this section within thirty (30) days after receiving such request in writing unless the proposed reallocation does not comply with the Act or this Declaration. The failure of the Board to act upon a request within such period shall be deemed approval thereof. The amendment shall be recorded in the names of the parties and of the Condominium. 8.8 Conversion of Common Element to Limited Common Element. The Owners of the Units to which at least sixty-seven percent (67%) of the Commercial Voting Power, and at least sixty-seven percent (67%) of the Residential Voting Power, including the Owner of the Unit to which the Limited Common Element will be allocated, must agree to convert a Common Element to a Limited Common Element. Such conversion shall be reflected in an amendment to this Declaration and Survey Map and Plans. This section shall not apply to any exercise of any Special Declarant Right or Development Right reserved by the Declarant in this Declaration. 8.9 Conversion of Limited Common Element to Common Element. The Owners of the Units to which at least sixty-seven percent (67%) of the Commercial Voting Power, including the Owner of the Unit to which the Limited Common Element has been allocated, must agree to convert a Commercial Limited Common Element or a Limited Common Element that is allocated to a Commercial Unit into a Common Element. The Owners of the Units to which at least a majority of the Commercial Voting Power and at least sixty-seven percent (67%) of the Residential Voting Power, including the Owner of the Unit to which the Limited Common Element has been allocated, must agree to convert a Residential Limited Common Element or Limited Common Element allocated to a Residential Unit into a Common Element. Such conversion shall be reflected in an amendment to this Declaration and Survey Map and Plans. This section shall not apply to any exercise of any Special Declarant Right or Development Right reserved by the Declarant in this Declaration Incorporation of Limited Common Element into Unit. The Owners of the Units to which at least sixty-seven percent (67%) of the Commercial Voting Power, and at least sixty-seven percent (67%) of the Residential Voting Power, including the Owner of the Unit to which the Limited Common Element will be incorporated, must agree to incorporate a Limited Common Element into an existing

25 Unit. Such incorporation shall be reflected in an amendment to this Declaration and the Survey Map and Plans. This section shall not apply to any exercise of any Special Declarant Right or Development Right reserved by the Declarant in this Declaration. ARTICLE 9 EASEMENTS 9.1 Service Facilities. In addition to any rights under the Act, each Unit has an easement in and through the Common Elements (but not the Limited Common Elements) for ingress and egress from the public streets. Each Unit has an easement in, on, under and through the Common Elements for utility, plumbing, wiring, conduits, heat, and service elements, and for reasonable access thereto, as required to effectuate and continue the proper operation of the Condominium, and changes to improvements therein. Without limiting the foregoing, each Commercial Unit shall have such an easement to run such elements through the floors, ceilings, walls, chases, shafts, and Parking Spaces and Parking Garage, and to tie into existing facilities, without compensation to, or approval of, the Association or any Unit Owner, as may be required for any improvements or operations within or related to the Unit. The foregoing easements are perpetual and run with the land and may be exercised from time to time. All such easements shall, however, terminate upon the destruction of the Building and termination of this Condominium pursuant to Article 24 of this Declaration. 9.2 Access and Utilities. The Declarant, or the Board on behalf of the Association, shall each have authority to grant utility, access and similar easements, licenses and permits under, through or over the Common Elements which the Board determines are reasonably necessary for the operation of the Property. 9.3 Declarant Functions. There is hereby reserved to the Declarant an easement through the Common Elements (including the Limited Common Elements) as may be necessary or appropriate for the purposes of discharging the Declarant s obligations or exercising its Special Declarant Rights, including without limitation completing improvements within or related to any Commercial or Residential Units. Without limiting the foregoing, the Declarant shall have the right to enter and use the Common Elements, to make improvements in the Common Elements, to route and install utility, plumbing, wiring, conduits, heat, and service elements and other equipment and facilities through the floors, ceilings, walls, chases, shafts, corridors and Parking Spaces and Parking Garage without compensation to, or approval of, the Association or any Unit Owner, as may be required for the construction of any improvements, or for the operations, within or related to a Unit or its allocated Limited Common Elements. Such easements shall be in effect so long as the Declarant or its successors or assignees has any obligations as a Declarant or owns any portion of the Condominium, whichever is later