DECLARATION OF CONDOMINIUM Millhopper Road Gainesville, Florida

Transcription

1 DECLARATION OF CONDOMINIUM 4100 Millhopper Road Gainesville, Florida Joint Venture of Sidney Kessler, Richard Kessler, Jerome T. Miller, James F. Shivler III, David Lee Schurger, Edmund D. Warren, Betty Kessler, and Beth Levin, hereinafter call the Developer, makes the following declarations: I. PURPOSE The purpose of this Declaration is to submit the lands described and improvements described and to be constructed thereon to the condominium for ownership and use in the manner provided in Chapter 711 of the Florida Statutes, herein called the Condominium Act. Except where the permissive variances therefrom appear in the Declaration, the annexed By-Laws, or the Charter of Bellamy Forge Condominium Association, Inc. a non profit Florida corporation, or in lawful amendments to these instruments, the provisions of Chapter 711, including the definitions therein contained, are adopted herein by express reference as if set forth herein, and said statute, as amended from time to time and this Declaration, the annexed By-Laws, and the Charter of said corporation, as lawfully amended from time to time, shall govern this condominium and the rights, duties and responsibilities of owners of condominium parcels therein. II. NAME. The name by which this condominium is to be identified is Bellamy Forge, a condominium. III. PROPERTY SUBMITTED TO CONDOMINIUM FORM OF OWNERSHIP. The following property is hereby submitted to the condominium form of ownership: (a) The Land. The land, owned by the Developer, lying and being situated in Alachua County, Florida, which lands are set forth with particularity in exhibit D attached hereto. The lands described herein shall be called the land, subject to the reservations and easements of record. IV. DEVELOPMENT PLAN. During the course of construction the Developer reserves the following easements: (a) Easements. The following easements are covenants running with the land of the condominium: (1) Utility Easements are reserved through the condominium property as may be required for utility services in order to adequately serve the condominium; provided, however OR BOOK 876 PAGE 219

2 such easements through a condominium unit shall be only according to the plans and specifications for the building, or as the building is constructed, unless approved in writing by the condominium unit owner. (2) Ingress and Egress is reserved for pedestrian traffic over, through and across sidewalks, paths, walks and lanes as the same from time to time may exist upon the common elements; and for vehicular traffic over, through and across such portions of the common elements as from time to time may be paved and intended for such purposes. (3) Easements in Parking Areas. Easements are reserved to the owners of Condominium Units in Bellamy Forge Condominiums for pedestrian and vehicular traffic over, through and across such driveways and parking areas as from time to time may be paved and intended for such purposes; and for the construction and maintenance of water, sewer and other utilities, lakes, streams, recreational facilities and similar items. (4) Easements for Unintentional and Non-Negligent Encroachments. If a condominium parcel shall encroach upon any common element, or upon any other parcel by reason of original construction or by the non-purposeful or non-negligent act of the parcel owner, then an easement appurtenant to such encroachment parcel, to the extent of such encroachment, shall exist so long as such encroachment shall exist. If any common element shall encroach upon any parcel by reason of original construction or the non-purposeful or non-negligent act of the Association, then an easement appurtenant to such common element to the extent of such encroachment, shall exist so long as such encroachment shall exist. (5) The Developer reserves the exclusive right at any time hereinafter to convey, assign and transfer any road which has been designated as a private road for ingress and egress to the lands of or over the land described in Exhibit D to any corporate sovereign that would have jurisdiction over said private roads once they have been conveyed, transferred, and assigned to said corporate sovereign, provided, however, that the Developer in reserving this exclusive right and making said conveyance to said corporate sovereign accepting said conveyance of said private roads agrees to repair and maintain said roads thereafter, at which time the maintenance and repair of such roads shall then no longer be a common expense. Any such conveyance made by the Developer herein with reference to said roads need be executed and acknowledged only by the Developer and need not be approved by the Association, unit owners, or lienors or mortgages of units of the condominium, whether or not elsewhere required by law or by this Declaration and amendments thereto. -2- OR BOOK 876 PAGE 220

3 V. DEFINITIONS. (1) Bellamy Forge Project. The entire group of condominiums contemplated for construction by the Developer. (2) Condominium Unit. The unit being an apartment space herein called condominium unit and set forth in detail in the plans, specifications, maps and plats; such condominium plat being filed for record simultaneously and made a part thereof. See Exhibit A. (3) Common Elements. Common elements shall include: (a) The condominium property not included in the units; (b) tangible personal property required for the maintenance and operation of the common elements, even though owned by the Association; (c) other items as stated in the Condominium Act; and (e) other items stated in the Declaration, hereinafter. (4) Condominium Parcel. The condominium unit, together with an undivided share in the common elements appurtenant thereto. (5) Owner. That person or entity owning a condominium parcel. (6) Co-Tenant. Same definition as Owner. (7) Member. An owner or co-tenant who, or which, is a member of Bellamy Forge Condominium Association, Inc., a Florida Corporation not for profit, hereinafter referred to as the Association. (8) Voting Rights. If a unit is owned by one person, his right to vote shall be established by the record title to his unit. If a unit is owned by more than one person, the person entitled to cast the vote for the unit shall be designated by a certificate signed by all of the record owners of the unit and filed with the Secretary of the Association. If a unit is owned by a corporation the person entitled to case the vote for the unit shall be designated by a certificate of appointment signed by the President or Vice President, attested with the Secretary of the Association. Such certificate shall be valid until revoked or until superceded by a subsequent certificate or until a change in the ownership of the unit concerned. A certificate designating the person entitled to case the vote of a unit may be revoked by any owner thereof. (9) Common Expenses. Common expenses include: (a) Expenses of administration and management of the condominium property; -3- OR BOOK 876 PAGE 221

4 (b) Expenses of maintenance, operation, repair or replacement of common elements; (c) Expenses declared common expenses by the provisions of this Declaration of Condominium or the By-Laws; and (d) Any valid charge against the condominium as a whole. (10) Common Surplus. The excel of all receipts of the Association including but not limited to assessments, rents, profits and revenues on account of the common elements, over the amount of common expenses. (11) Condominium Documents. This Declaration and the Exhibits annexed hereto as the same from time to time may be amended. Said Exhibits are as follows: Exhibit A - Exhibit B - Exhibit C - Exhibit D - Exhibit E - Condominium Plans Articles of Incorporation of Bellamy Forge Condominium Association, Inc. By-Laws of Bellamy Forge Condominium Association, Inc. Legal Description of Property Schedule of Distribution of Common Expenses, Proportionate Interest in Common Elements, Distribution and Vote Allocation. (12) Developer. Sydney Kessler, Richard Kessler, Jerome T. Miller, James F. Shivler III, David Lee Schurger, Edmund D. Warren, Betty Kessler, and Beth Levin, a Joint Venture, their assigns and/or successors. (13) Person. Developer and any individual, firm, corporation, trustee, or other entity capable of holding title to read property. (14) Share. The percentages attributed to each Condominium Unit as set forth in Exhibit E hereof. (15) Institutional Mortgagee. Is the owner and holder of a mortgage encumbering a condominium parcel, which owner and holder of said mortgage is either a bank, life insurance company or a federal or state savings and loan association. -4- OR BOOK 876 PAGE 222

5 (16) Institutional Mortgage. A mortgage owned or held by an institutional mortgagee. (17) Utility Service. Utility services, as used in the Condominium Act and constructed with reference to this condominium and as used in this Declaration and By-Laws, shall include, but not be limited to, electric power, gas, water, heating, air conditioning and sewage and garbage disposal. (18) Developer s Units and Privileges. The Developer and/or the Association is irrevocably empowered, notwithstanding anything to the contrary herein, to sell, lease, or rent units to any persons approved by the Developer. Said Developer shall have the right to transact on the condominium property any business necessary to consummate sale of units, including but not limited to, the right to maintain models, have signs, employees in the office, use the common elements and to show units. A sales office, signs, and all items pertaining to sales shall not be considered common elements and shall remain the property of the Developer. In the event there are unsold units, the Developer retains the right to be the owner thereof, under the same terms and conditions as other owners save and except for this right to sell, rent, or lease as contained in this paragraph. (19) Developer reserves the right to change the interior design and arrangement of all units, and is to alter the boundaries between units, provided Developer owns the units so altered and provided further that prior written consent is obtained from all mortgages holding a mortgage affecting the units being so alters. An amendment to this Declaration reflecting such alteration by the Developer need be signed and acknowledged only by the Developer after such written consent, and need not be signed by the Association, unit owners, lienors, nor mortgages. No such change shall, however, increase the number of units nor alter the boundaries of the common elements without an amendment to this Declaration in the manner hereinafter provided. FOLLOWS: VI. CONDOMINIUM PARCELS SHALL BE CONSTITUTED AS (1) Real Property. The condominium property is declared to contain One Hundred Eighty-Six (186) condominium units, the space within each as shown on the condominium plans and together with all appurtenances thereto. Each shall, for all purposes, constitute a separate parcel of real property which may be owned in fee simple and which may be conveyed, transferred and encumbered in the same manner as any other parcel of real property independently of all other parts of the Property, subject to the provisions of this Declaration. (2) Boundaries. Each condominium unit shall be bound as to both horizontal and vertical boundaries as shown on the condominium plans, subject to such encroachments as are -5- OR BOOK 876 PAGE 223

6 contained in the Building whether the same exist now or are created by construction, settlement or movement of the Building, or permissible repairs, reconstruction or alterations. Each parcel shall include that part of the building containing the parcel which lies within the boundaries of the parcel, which boundaries are as follows: (a) Upper and lower boundaries. The upper and lower boundaries extended to an intersection with the perimetrical boundaries: undecorated finished ceiling. undecorated finished floor. (i) (ii) Upper boundary the horizontal plane of the Lower boundary the horizontal plane of the (b) Perimetrical boundaries. The perimetrical boundaries of the units shall be the following boundaries extended to an intersection with the upper and lower boundaries. (i) Exterior Boundary Walls the vertical planes of the undecorated finished interior of the walls bounding the parcel extended to intersections with each other and with the upper and lower boundaries. (ii) Exterior Appurtenances where a balcony, loggia or terrace serving the unit only being bounded is attached to the building, the vertical boundaries of the parcel shall be extended to include such area and the fixtures thereon. (3) Appurtenances. Each Condominium Parcel shall include and the same shall pass with each Condominium Unit as an inseparable appurtenance thereto, whether or not separately described, conveyed or encumbered, all of the rights, title and interest of a Condominium Unit Owner in the Property, which shall include but not be limited to: (a) Common Elements: an undivided share of the common elements, such undivided share to be that portion set forth in Exhibit E ; (b) Association membership and funds and assets held by the Association for the benefit of the Condominium Unit Owners; (c) easements for the benefit of the Condominium Unit; (d) all such appurtenances, however, shall be and continue to be subject to the easements for the benefit of other condominium units; (e) in addition to and not in derogation of the ownership of the space described on the Condominium Plans, -6- OR BOOK 876 PAGE 224

7 an exclusive easement for the use of the space not owned by the Condominium Unit Owner and which is occupied by the Condominium Unit, which easement shall exist until the earliest of such time as this Declaration is terminated in accordance with provisions herein contained, elsewhere contained, or the building is no longer tenantable; (f) the following easements from each Condominium Unit Owner to each other Condominium Unit Owner and to the Association; (i) Ingress and Egress. Easements through the common elements for ingress and egress for all persons making use of such common elements in accordance with the terms of the condominium documents. (ii) Maintenance, Repair and Replacement. Easements through the condominium units and other condominium parcels and common elements for maintenance, repair and replacement of the condominium and common elements. Use of these easements however for access to the condominium units shall be limited to reasonable hours, except that access may be had at any time in case of emergency. (iii) Structural Support. Every portion of a condominium unit or other condominium parcel which contributes to the structural support of the Building shall be burdened with an easement of structural support for the benefit of the common elements. (iv) Emergency easements of Ingress and Egress. Easements in or through all condominium parcels whenever reasonable required for emergency ingress and egress. No condominium unit owner shall install or allow to be installed any lock, security device or other thing which will or might impair such easements. VII. COMMON ELEMENTS USE. The common elements shall be used in accordance with and subject to the following provisions: (1) Covenant against Partition. In order to effectuate the intent hereof and to preserve the condominium and the condominium method of ownership, the property shall remain undivided and no person, irrespective of the nature of his interest in the Property, shall bring any action or proceeding for partition or division of the Property or any part thereof until the termination of the Declaration in accordance with provisions herein elsewhere contained. (2) Rules and Regulations Promulgated by Association. No person shall use the common elements or any part thereof in any manner contrary to or not in accordance with such rules and regulation pertaining thereto as from time to time may be promul- -7- OR BOOK 876 PAGE 225

8 gated by the Association. Without in any manner intending to limit the generality of the foregoing, the Association shall have the right but not the obligation, to promulgate rules and regulations limiting the use of the common elements to members of the Association and their respective families, guests, invitees and servants as well as to provide for the exclusive use by a condominium unit owners and his guest, for specific occasions, of the swimming pool, recreation room or other similar facilities. Such use may be conditioned upon, among other things, the payment by the condominium unit owner of such assessment as may be established by the Association for the purpose of defraying costs thereof. (3) Maintenance, repair, management and operation of the common elements shall be the responsibility of the Association, but nothing herein contained, shall be construed to preclude the Association from delegating to persons, firms or corporations of its choice, such duties as my be imposed upon the association by the Board of Governors of the Association. (4) Expenses incurred or to be incurred for the maintenance, repair, management and operation of the common elements shall be collected from condominium unit owners as assessed, n accordance with provisions contained elsewhere herein. (5) Subject to the rules and regulations from time to time pertaining thereto, all Condominium Unit Owners may use the common elements in such manner as will not restrict, interfere or impede the use thereof by other condominium unit owners. (6) Alteration and Improvements. The Association shall have the right to make or cause to be made such alterations and improvements to the common elements as may be requested by a condominium unit owner or group of condominium unit owners (which do not prejudice the right of any condominium unit owner unless his written consent has been obtained), providing the making of such alterations and improvements are first approved by the Board of Governors of the Association and all first mortgages of such individual units. The costs of such shall be assessed as common expenses, unless in the judgment of not less than 80% of the Board of Governors, the same are exclusively or substantially exclusively for the benefit of the condominium unit owner or owners requesting the same, in which case such requesting condominium unit owner shall be assessed therefore in such proportions as they approve jointly and failing such approval, in such proportions as may be determined by the Board of Governors of the Association. (7) Shares of Condominium Unit Owners. The shares of the condominium unit owners in the common elements shall be as stated in Exhibit E annexed hereto and may be altered only by amendment hereof executed in form for recording by all of the condominium unit owners and first mortgages of such owners. No such alteration shall affect the lien of prior recorded -8- OR BOOK 876 PAGE 226

9 mortgages unless written consent of the holder of such mortgage is obtained and recorded. (8) The Share of A Condominium Unit Owner in the Common Elements is appurtenant to the condominium unit owned by him, and inseparable from condominium unit ownership. VIII. MAINTENANCE AND REPAIR OF CONDOMINIUM PARCELS AND CONDOMINIUM UNITS. (1) The Association, at its expense, shall be responsible for the maintenance, repair and replacement of: (a) all portions of the condominium unit which contribute to the support of the building, including, without intending to limit the same to, outside walls of the building, structural floors systems, slabs, roof, interior boundary walls of condominium units and load bearing columns; excluding, however, non load-bearing interior partitions within a unit, interior wall, ceiling and floor surfaces; (b) all conduits, ducts, plumbing, wiring and other facilities for the furnishing of utility services which may be contained in the Condominium Unit but excluding therefrom appliances and plumbing fixtures; (c) all incidental damage caused to a condominium unit by such work as may be done or caused to be done by the Association in accordance herewith. (2) By the condominium Unit Owner. The responsibility of the condominium unit owner shall be as follows: (a) to maintain, repair and replace at his expense, all portions of the Condominium Unit except the portion of each to be maintained, repaired and replaced by the Association; (b) to perform his responsibilities in such manner so as not unreasonably to disturb other persons residing within the Building; (c) not to paint or otherwise decorate or change the appearance of any portion of the Building not within the walls of the condominium unit, unless the written consent of the Association is obtained; (d) to promptly report to the Association or its agent any defect or need for repairs, the responsibility for the remedying of which is with the Association; (e) not to make any alteration in the portions of the condominium unit or the building which are to be maintained by the Association or remove any portion thereof -9- OR BOOK 876 PAGE 227

10 or make any additions thereto or do anything which would or might jeopardize or impair the safety or soundness of the Building without first obtaining the written consent of the Board of Governors of the Association and all First Mortgagees of individual units, nor shall any condominium unit owner impair any easement without first obtaining the written consent of the Association and of the Condominium Unit Owner or Owners for whose benefit such easement exists. (f) An owner shall show no sign, advertisement or notice of any type on the Common Property or his unit and erect no exterior antennas and aerials except as provided under uniform regulations promulgated by the Association. This subparagraph shall not apply to the Developer and/or institutional first mortgages. (g) Plumbing and electrical heating and air-conditioning repairs within a unit shall be paid for and be the financial obligation of the owners of the unit, whereas the Association shall pay for and be responsible for repairs and electrical wiring within the Common Property, except, however, any plumbing, electrical heating and airconditioning repairs whether within a unit or Common Property, made necessary by any act of any Owner, shall be paid for by and be the financial responsibility of such owner. However, the compressor for heating and air-conditioning repairs shall be the responsibility of the owner. (3) Nothing herein contained, however, shall be construed so as to impose a contractual liability upon the Association for maintenance, repair and replacement, but the Association s liability shall be limited to damages resulting from negligence. IX USE RESTRICTIONS. In order to provide for congenial occupation of the buildings and to provide for the protection of the values of the Condominium Units, the use of the Property shall be restricted to and be in accordance with the following provisions: residences only. (1) The Condominium Units shall be used for single-family (2) The common elements shall be used for the furnishing of services and facilities for which the same are reasonably intended, for the enjoyment of the condominium unit owners. (3) Nuisances. No nuisances shall be allowed upon the Property nor shall any use or practice be allowed which is a source of annoyance to residents or which interferes with the peaceful possession and proper user of the Property by its residents OR BOOK 876 PAGE 228

11 (4) Lawful Use. No offensive unlawful use shall be made of the Property nor any part thereof and all valid laws, zoning ordinances and regulations of all governmental bodies having jurisdiction thereof shall be observed. The respective responsibilities of condominium unit owners and the Association of complying with the requirements of governmental bodies which require maintenance, modification or repair of the Property shall be the same as hereinabove provided for the maintenance and repair of that portion of the Property subjected to such requirements. (5) Interpretation. In interpreting deeds, mortgages and plans the existing physical boundaries of the unit or of a unit constructed or reconstructed in substantial accordance with the original plans there of shall be conclusively presumed to be its boundaries rather than the metes and bounds expressed in the deed, mortgage or plan, regardless of settling or lateral movement of the building and regardless of minor variance between boundaries shown on the plan or in the deed and those of the building. (6) Regulations. Regulations concerning use of the Property may be promulgated by the Association as hereinabove set forth; provided, however, that copies of such regulations are furnished to each condominium unit owner prior to the time that the same become effective. Such regulations shall not impair or limit the rights of mortgages, as elsewhere recited. (7) Proviso. Provided, however, that until Developer has completed all of the contemplated improvements and closed the sales of all of the units neither the unit owners, nor the Association, nor the use of the condominium property shall interfere with the completion of the contemplated improvements and the sale of the apartments. Developer may make such use of the unsold units and common areas as my facilitate such completion and sale, including but not limited to maintenance of a sales office, the showing of the property and the display of signs. X. ADMINISTRATION. The Administration of the Property, including but not limited to the acts required of the Association, shall be governed by the following provisions: (1) The Association shall be incorporated under the name BELLAMY FORGE ASSOCIATION, INC. as a corporation not for profit under the laws of the State of Florida under Articles of Incorporation of which a copy is attached as Exhibit B. Any other form of organization for the Association may be submitted after first obtaining the written approval of all of the members thereof. (2) The By-Laws of the Association shall be in the form attached as Exhibit C until such are amended in the manner therein provided OR BOOK 876 PAGE 229

12 (3) The duties and powers of the Association shall be those set forth in this Declaration, the Articles of Incorporation and the By-Laws, together with those reasonably implied to effect the purposes of the Association and this Declaration; provided, however, that if there are conflicts of inconsistencies between this Declaration and either the Articles of Incorporation or the By-Laws, the terms and provisions of this Declaration shall prevail and the condominium unit owners covenant to vote in favor of such amendments in the Articles of Incorporation and/or By-Laws as will remove such conflicts or inconsistencies. The powers and duties of the Association shall be exercised in the manner provided by the Articles of Incorporation and by the By-Laws and any duties or rights of the Association which are granted by or to be exercised in accordance with the provisions of this Declaration, shall be so exercised except that wherever this Declaration requires the act or approval of the Board of Governors of the Association, such act or approval must be that of the Board done or given in accordance with the By-Laws. (4) Notices or demands, for any purpose, shall be given by the Association to condominium unit owners and by condominium unit owners to the Association and other condominium unit owners in the manner provided for notices to members of the Association by the By-Laws of the Association. (5) All funds and the titles of all properties acquired by the Association and the proceeds thereof after deducting therefrom the costs incurred by the Association in acquiring the same shall be held for the benefit of the condominium unit owners for the purposes herein stated. (6) All income received by the Association from the rental or licensing of any part of the common elements (as well as such income anticipated) shall be used for the purpose of reducing prospective common expenses prior to establishing the annual assessment for common expenses. (7) Notwithstanding any other provision inconsistent herewith, Developer retains the right to elect a majority of the members of the Board of Governors of BELLAMY FORGE CONDOMINIUM ASSOCIATION, INC., until such time as it has sold all of the condominium units in Bellamy Forge, a condominium; provided, however, that in no event shall this right to elect a majority of the Board of Governors extend beyond January 1, Any Governor designated and selected by Developer need not be a resident in this Condominium. Any representative of ALACHUA BUILDERS serving on the Board of Governors of the Association shall not be required to disqualify himself upon any vote upon any matter whatever involving Developer and this Condominium and/or Association or which may in any other way be a matter wherein Developer may have a pecuniary or other interest. Likewise, any person named as Developer, as a member of this Association, -12- OR BOOK 876 PAGE 230

13 shall not be required to disqualify itself in any vote if the membership of the said Association upon any matter between Developer and the Association wherein Developer may have a pecuniary or other interest. XI. INSURANCE. The Insurance which shall be carried upon the Property shall be governed by the following provisions: (1) Authority to Purchase. Except Building Risk and other required insurance furnished by Developer during construction, all insurance policies upon the Property (except as hereinafter allowed) shall be purchased by the Association for the benefit of the Condominium Unit or other Condominium Parcel Owners and their respective mortgages as their interests may appear and shall provide for the issuance of certificated of insurance mortgage endorsements to the holders of first mortgages on the Condominium Units or other Condominium Parcels or any of them and, if insurance companies will agree, shall provide that the insuror waives its rights of subrogation as to any claims against Condominium Unit or other condominium parcel owners, the Association, and their respective servants, agents, and guests; provided, however, that should the Association fail to pay such premiums when due. or should the Association fail to comply with other insurance requirements of the Mortgagee(s), said Institutional Mortgagee(s) shall have the right at its option, to order insurance policies and to advance such sums as are required to maintain or procure such insurance, and to the extent of the money so advanced, said Mortgagee shall be subrogated to the assessment and lien rights of the Association as against the individual Unit owners for the payment of such item of common expense. Such policies and endorsements shall be deposited with the Insurance Trustee (as hereinafter defined) who much first acknowledge that the policies and any proceeds thereof will be held in accordance with the terms hereof. (2) Condominium Unit Owners. Each condominium unit owner may obtain insurance, at his own expense, affording coverage upon his personal property and for his personal liability and as may be required by law, but all such insurance shall contain the same waiver of subrogation as that referred to in Article XI (1) here of (if the same is available). (3) Coverage: (a) Casualty. The Buildings and all other insurable improvements upon the land and all personal property as may be owned by the Association shall be insured in an amount equal to the maximum insurable replacement value thereof (exclusive of excavation and foundations) as determined annually by the insurance company affording such coverage. Such coverage shall afford protection against: (i) loss or damage by fire and other -13- OR BOOK 876 PAGE 231

14 hazards covered by the standard extended coverage endorsement; (ii) such other risks as from time to time customarily shall be covered with respect to buildings similar in construction, location and use as the building, including but not limited to, vandalism, malicious mischief, windstorm and water damage; (b) Public liability and property damage in such amounts and in such forms as shall be required by the Association, including but not limiting the same to water damage, legal liability, hired automobile, non-owned automobile and off-premises employee coverages; requirements of law; (c) Workmen s compensation policy to meet the (d) All liability insurance shall contain cross-liability endorsements to cover liabilities of the condominium parcel owners as a group to a condominium parcel owner. (4) Premium. Premiums upon insurance policies purchased by the Association shall be paid by the Association and charged as common expenses. (5) All insurance policies purchased by the Association shall be for the benefit of the Association and the Condominium Parcel Owners and their mortgages as their respective interests may appear and shall provide that all proceeds payable as a result of casualty losses shall be paid to the FIRST NATIONAL BANK OF GAINESVILLE, FLORIDA or to any other bank, with trust powers as may be approved by the Association. Such Trustee or any other bank acting as such, is herein referred to as the Insurance Trustee. The Insurance Trustee shall not be liable for payment of premium nor for the renewal of the policies, nor for the sufficiency of coverage, nor for the form or contents of the policies, nor for the failure to collect any insurance proceeds. The sole 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, for the benefit of the Association, the Condominium Parcel Owners and their respective mortgages, in the following shares, but such shares need not be set forth upon the records of the insurance Trustee: (a) Common Elements Proceeds on account of damage to common elements that undivided share for each condominium parcel owner and his mortgagee, if any, which is set forth in Exhibit E. (b) Condominium Parcels. Proceeds on account of condominium parcels shall be held in the following undivided shares: -14- OR BOOK 876 PAGE 232

15 (i) Partial destruction. When the building is to be restored for the owners of damaged condominium parcels in proportion to the cost of repairing the damage suffered by the damaged condominium parcel. Upon the request of the Insurance Trustee, the Association shall certify to the Insurance Trustee the appropriate portions as aforesaid, and each condominium parcel owner shall be bound by and the Insurance Trustee may rely upon such certification. (ii) Total destruction of the Buildings or where the building is not to be restored for all condominium parcel owners, the share of each being that share set forth in Exhibit E. (c) Mortgagees. An Institutional First Mortgagee shall always be entitled to receive, in reduction of its mortgage debt that portion of insurance proceeds apportioned to its mortgage unit in the same share as the share in the Common Elements appurtenants to such Unit, in the event: default; or (i) its mortgage is not in good standing and is in (ii) either insurance proceeds are not sufficient to complete restoration, reconstruction or repair and the Association has not made additional funds available for such purposes; or, (iii) it is determined to restore, repair, or reconstruct the improvements in a manner or condition substantially different from that existing prior to the casualty and such mortgagee has not consented in writing to such change or alteration; provided, however, that no mortgagee shall have any right to determine or participate in the determination as to whether or not any damaged property shall be reconstructed or repaired. (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 after first paying or making provision for the payment of the expenses of the insurance Trustee in the following manner: (a) Reconstruction or Repair. If the damage for which the proceeds were paid is to be repaired or reconstructed, the proceeds shall be paid to defray the cost thereof as elsewhere provided. Any proceeds remaining after defraying such costs shall be distributed to the beneficial Owners, all remittances to Condominium Parcel Owners, and their mortgages being payable jointly to them. This is a covenant for the benefit of any mortgagee of a Condominium Parcel and may be enforced by him OR BOOK 876 PAGE 233

16 (b) Failure to Reconstruct or Repair. If it is determined in the manner elsewhere provided, that the damage for which the proceeds are paid shall not be reconstructed or repaired, the proceeds shall be distributed to the beneficial Owners, remittances to Condominium Parcel Owners and their mortgages being payable jointly to them. This is a covenant for the benefit of any mortgagee of a Condominium Parcel and may be enforced by him. (c) Certificate. In making distribution to unit owners and their mortgages, the Insurance Trustee may rely upon a certificate of the Association as to the names of the unit owners and their respective shares of the distribution, approved in writing by an attorney authorized to practice law in the State of Florida, a title insurance company or abstract company authorized to do business in the State of Florida. Upon request of the Insurance Trustee, the Association forthwith shall deliver such certificate. XII. RECONSTRUCTION OR REQPIR OF CASUALTY DAMAGE. (1) If any part of the Common Elements shall be damaged by casualty the determination of whether or not to reconstruct or repair the same shall be made as follows: (a) Partial destruction, which shall be deemed to mean destruction which does not render one-half or more of the Condominium Units untenantable shall be reconstructed or repaired unless determined otherwise by eighty percent (80%) of the Board of Governors of the Association, and if the damaged property is a building containing condominium units, by the owners of all such units and mortgages of record, at a meeting of the members of the Association, which shall be called prior to commencement of such reconstruction or repair, unless this Declaration is terminated. (2) Total destruction, which shall be deemed to mean destruction which does render one-half or more of the Condominium Units untenantable shall not be reconstructed or repaired unless at a meeting which shall be called within ninety (90) days after the occurrence of the casualty, or, if by such date, the insurance loss has not been finally adjusted, then within thirty (30) days thereafter, Condominium Unit Owners who, in the aggregate, own 80% or more of the Shares, vote in favor of such reconstruction or repair. (3) Any repair or reconstruction must be substantially in accordance with the plans and specifications for the original improvement; or if not, then according to plans and specifications approved by the Board of Governors of the Association and if the damaged property is a building containing condominium units, by the owners of all units and mortgages of record, the surrounding or abutting common elements of which were so damaged, which approval shall not be unreasonably withheld OR BOOK 876 PAGE 234

17 (4) Encroachments upon or in favor of Condominium Parcels which may be created as a result of such reconstruction or repair shall not constitute a claim or basis or a proceeding or action by the Condominium Parcel Owner upon whose property such encroachment exists, provided that such reconstruction was either substantially in accordance with the Plans and Specifications or a the building was originally constructed. Such encroachments shall be allowed to continue in existence for so long a the Building stands. (5) Certificate. The Insurance Trustee may rely upon a certificate of the Association certifying as to whether or not the damaged property is to be reconstructed or repaired. The Association, upon request of the Insurance Trustee, shall deliver such certificate as soon as practical. (B) Responsibility. If the damage is only to parts of one Condominium Unit, which responsibility has heretofore been defined as being that of the Unit Owner, then the Condominium Unit Owner shall be responsible for reconstruction and repair after casualty. In all other instances, the responsibility of reconstruction and repair after casualty shall be that of the Association. (1) Estimate of Costs, Immediately after a casualty causing damage to property for which the Association has the responsibility of maintenance and repair, the Association shall obtain reliable and detailed estimates of the cost to place the damage property in condition as good as that before the casualty. Such costs may include professional fees and premiums for such Bonds as the Board of Governors desires. (2) Assessments. If the proceeds of insurance are not sufficient to defray the estimated costs of reconstruction and repair by the Association (including the aforesaid fees and premiums, if any) assessments shall be made against the Association in sufficient amounts to provide funds to pay the estimated costs. If at any time during reconstruction and repair, or upon completion or reconstruction or repair, the funds for the payment of the costs thereof are insufficient, assessments shall be made against the Association in sufficient amounts to provide funds for the payment of such costs. (3) Construction Funds. The funds for payment of costs of reconstruction and repair after casualty, which shall consist of proceeds of insurance held by the Insurance Trustee and funds collected by the Association from assessments against condominium parcel owners, shall be disbursed in payment of such cost in the following manner: (a) Association. If the amount of the estimated costs of reconstruction and repair exceeds the total of -17- OR BOOK 876 PAGE 235

18 the annual assessments for Common Expenses made during the year in which the casualty occurred, then the sums paid upon assessments to meet such costs shall be deposited by the Association with the Insurance Trustee. In all other cases, the Association shall hold the sums paid upon such assessments and disburse the same in payment of the costs of reconstruction and repair. (b) Insurance Trustee. The proceeds of insurance collected on account of a casualty, and the sums deposited with the Insurance Trustee by the Association from collections of assessments against Condominium Parcel 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: (i) Condominium Parcel Owner. The portion of insurance proceeds representing damage for which the responsibility of reconstruction and repair lies with the Condominium Parcel Owner; to such contractors, suppliers, and personnel as do the work or supply the materials or services required for such reconstruction or repair, in such amounts and at such times as the Condominium Parcel Owner may direct, or if there is a mortgagee endorsement, then to such payees as the Condominium Parcel Owner and the first mortgagee jointly direct. Nothing contained herein, however, shall be construed so as to limit or modify the responsibility of the Condominium Parcel Owner to make such reconstruction or repair. (ii) Association lesser damage. If the amount of the estimated costs of reconstruction and repair is less than the total of the annual assessments for Common Expenses made during the year in which the casualty occurred, then the construction fund shall be disbursed in payment of such costs upon the order of the Association; provided, however, that upon request of a 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 hereafter provided for the reconstruction and repair of major damage. (iii) Association major damage. If the amount of the estimated costs of reconstruction and repair of the building or other improvement is more than the total of the annual assessments for Common Expenses made during the year in which the casualty occurred, then the construction fund shall be disbursed in payment of such costs in the manner required by the board of Governors of the Association and upon approval of an architect qualified to practice in Florida and employed by the Association to supervise the work. (iv) Surplus. It shall be presumed that the first monies disbursed in payment of costs of reconstruction and repair shall be from insurance proceeds; and if there is a balance in construction fund after payment of all costs of the -18- OR BOOK 876 PAGE 236

19 reconstruction and repair for which the fund is established, such balance shall be distributed jointly to the Condominium Parcel Owners and their mortgages who are the beneficial owners of the fund. (v) Common Elements & Condominium Units. When the damage is to both Common Elements and Condominium Units, the insurance proceeds shall be applied first to the costs of repairing the Common Elements and the balance to the Condominium Units as set forth herein. (4) Insurance Adjustments. Each Condominium Parcel Owner shall be deemed to have delegated to the Board of Governors his right to adjust with insurance companies all losses under the policies purchased by the Association except in any case where the damage is restricted to one Condominium Unit, subject to the rights or mortgages of such Condominium Parcel. XIII. TAXES AND SPECIAL ASSESSMENTS (1) The assessment of each of the Condominium Parcels for taxes and special assessments by governmental bodies may be done in the following manner: (a) Each of the Condominium Parcels will be assessed as a separate parcel of property. Any certificate or return that may be required for assessment of Ad Valorem Taxes on the property shall be made by the Association and no individual Condominium Parcel Owner may contest the assessment unless the Association has refused to do so. (b) Certificate. Any tax assessor may rely upon a Certificate of the Association as to the share of each Condominium Parcel and upon request, or whenever appropriate, the Association shall issue such Certificate. (c) During the period of time that taxes upon the property or any portion thereof are not assessed to Condominium Unit Owners, the taxes and assessments not separately assessed shall be included in the budget of the Association and shall be paid by the Association and should there be any special assessments made as to a portion of the Property which constitutes a common element, this assessment shall also be included in the budget of the Association and paid by the Association from Assessments against the individual owners. (2) Return for Taxation. No Condominium Parcel Owner shall make a return for taxation which is inconsistent in a manner with the provisions hereof and if any such return is made it shall be void. The Association shall make a return of all property for taxation in the names of the respective condominium Parcel Owners returning for each a share determined in the manner hereinabove provided for allocation of assessments by Tax Assessors OR BOOK 876 PAGE 237

20 XIV. ASSESSMENTS. assessments against the Condominium Unit Owners appointed in accordance with Exhibit E, shall be made or approved by the Board of Governors of the Association and paid by the Condominium Unit Owners to the Association in accordance with the following provisions: (1) Share of Expense. Common Expenses Each Condominium Unit Owner shall be liable for his share of the Common Expenses, and any Common Surplus shall be owned by each Condominium Unit Owner in a like share, as provided in Exhibit E of this Declaration. (2) Assessments other than Common Expenses. Any assessments, the authority to levy which is granted to the Association or its Board of Governors by the Condominium Documents, shall be paid by the Condominium Unit Owners to the Association in the proportions set forth in the provision of the Condominium Documents authorizing the assessment. (3) Accounts. All sums collected by the Association from assessments may be co-mingled in a single fund but they shall be held for the Condominium Unit Owners in the respective Shares in which they are paid and shall be credited to accounts from which shall be paid the expenses for which the respective assessments are made. Such accounts shall be as follows: (a) Common Expense Account to which shall be credited collections of assessments for all Common Expense as well as payments received for defraying costs of the use of Common Elements; (b) Alteration and Improvement Account to which shall be credited all sums collected for alteration and improvement assessments; (c) Reconstruction and Repair Account to which shall be credited all sums collected for reconstruction and repair assessments; (d) sums collected for emergencies. Emergency Account to which shall be credited all (4) Assessments for Common Expenses. Assessments for Common Expenses shall be made for the calendar year annually in advance on or before the second Monday in December of the year preceding the year for which the assessments are made and at such other and additional times, as in the judgment of the Board of Governors, additional Common Expenses assessments are required for the proper management, maintenance and operation of the Common Elements. Such annual assessments shall be due and payable in equal monthly payments on the first day of each month, beginning with January of the year for which the assessments are made. The total of the assessments shall be in the amount of the estimated Common Expenses for the year including a reasonable -20- OR BOOK 876 PAGE 238

21 allowance for contingencies and reserves less the amounts of unneeded Common Expense Account balances. If an annual assessment is not made as required, a payment in the amount required by the last prior assessment shall be due upon each assessment payment date until changed by a new assessment. (5) Other assessments shall be made in accordance with the provisions of the Condominium Documents and if the time of payment is not set forth in the Condominium Documents, the same shall be determined by the Board of Governors of the Association. (6) Assessments for Emergencies. Assessments for Common Expenses of emergencies which cannot be paid from the Common Expense Account shall be made only by the Board of the Association. (7) Assessments for Liens. All liens of any nature included taxes and special assessments levied by governmental authority which are a lien upon more than one Condominium Unit or upon any portion of the Common Elements shall be paid by the Association is a Common Expense and shall be assessed against the Condominium Units in accordance with the Share of the Condominium Units concerned or charged to the Common Expense account, whichever in the judgment of the Board of Governors is appropriate. (8) Assessment Roll. The assessments against all condominium Unit Owners shall be set forth upon a roll of the Condominium Units which shall be available in the Office of the Association for inspection at all reasonable times by Condominium Unit Owners or their duly authorized representatives. Such roll shall indicate for each Condominium Unit the name and address of the Owner or Owners, the assessments for all purposes and the amounts of all assessments paid and unpaid. A certificate made by the Association as to the status of a Condominium Unit Owner s assessment account shall limit the liability of any person for whom made other than the Condominium Unit Owner. The Association shall issue such certificates to such persons as a Condominium Unit Owner may request in writing. (9) Liability for Assessments. The Owners of a Condominium Unit and his grantees shall be jointly and severally liable for all unpaid assessments due and payable at the time of a conveyance but without prejudice to the rights of the grantee to recover from the grantor the amounts paid by the grantee therefore. Such liability may not be avoided by a waiver of the use or enjoyment of any Common Element or by abandonment of the Condominium Unit for which the assessments are made. A purchaser of a Condominium Unit at the judicial or foreclosure sale or any Institutional Mortgagee which comes into possession of the Unit pursuant to the remedies provided in the Mortgage, foreclosure of the Mortgage or Deed in lieu of foreclosure, shall -21- OR BOOK 876 PAGE 239