Agenda 03-09-11
11~<!Y~Te~RA
. East Side-West Side-Seaside Renaissance
CRA Board Meeting
Wednesday, March 9,2011 at 6:30 PM
City Commission Chambers
100 E. Boynton Beach Blvd
Boynton Beach, FL 33435
I. Call to Order - Chairman Jose Rodriguez
II. Pledge to the Flag and Invocation
III. Roll Call
IV. Legal:
V. Agenda Approval:
A. Additions, Deletions, Corrections to the Agenda
B. Adoption of Agenda
VI. Informational Items by Board Members & CRA Attorney:
VII. Announcements & Awards:
A. Ocean Avenue Concerts
B. Movies on the Ave.
C. Mayor's Walk - March 19,2011
VIII. Consent Agenda:
A. Approval of Minutes - CRA Special Board Meeting February 1,2011
B. Approval of Minutes - CRA Board Meeting February 8, 2011
C. Approval of Period Ended February 28,2011 Financial Report
D. Monthly Procurement Purchase Orders
E. Approval of Rent Subsidy Grant to Hotdog-Opolis
IX. Pulled Consent Agenda Items:
X. Information Only:
A. CRA Policing Activity Reports
B. Public Comment Log
C. Satisfaction of Mortgage - The Related Group - Marina Purchase
XI. Public Comments: (Note: comments are limited to 3 minutes in duration)
XII. Old Business:
A. Review of the Promenade DIFA Audit Report
B. Request from Palm Beach County for Repayment of Development Regions Funds
for Delray-Boynton Academy in the Amount of $50,000
C. Request from Palm Beach County for Repayment of Development Regions Funds
for KU Holdings in the Amount of $50,000
D. Budget Amendment for Kaufman Lynn Project Agreement
E. Consideration of Approval of Task Order No.2 Under Continuing Contract with
Kaufman Lynn for Ocean Avenue Projects in the Amount of$953,388
F. Consideration of Entering into Agreement with the Palm Beach County Commission
on Ethics.
XIII. New Business:
A. Consideration of Funding Community Gardens in the Amount of $450.00
B. Consideration of Sponsoring INCA's Annual Picnic in the Amount of$175.00
C. Consideration of Sponsoring the Florida Trust for Historic Preservation's 2011
Annual Conference.
D. Consideration of Entering into a Hold Harmless Agreement with Splashdown
Divers
XIV. Interim Executive Director's Report
A. Project Status Update
XV. Future Agenda Items:
A. Consideration of Options for VIP Area at Public Events
B. Discussion ofIdeas for "G.A.L.A. type" Event Discussion
C. Consideration of Community Neighborhood Signage Program
D. Consideration of Issuing an RFP for the Construction, Sale and Buyer Qualification
of21 Homes on Ocean Breeze Site (April 2011)
E. Consideration of Lease for 211 E. Ocean Avenue
XVI. Adjournment
NOTICE
IF A PERSON DECIDES TO APPEAL ANY DECISION MADE BY THE CRA BOARD WITH RESPECT TO ANY MATTER CONSIDERED AT
THIS MEETING, HE/SHE WILL NEED A RECORD OF THE PROCEEDINGS AND, FOR SUCH PURPOSE, HE/SHE MAY NEED TO ENSURE
THAT A VERBATIM RECORD OF THE PROCEEDING IS MADE, WHICH RECORD INCLUDES THE TESTIMONY AND EVIDENCE UPON
WHICH THE APPEAL IS TO BE BASED. (F.s.286.0105)
THE CRA SHALL FURNISH APPROPRIATE AUXILIARY AIDS AND SERVICES WHERE NECESSARY TO AFFORD AN INDIVIDUAL WITH
A DISABILITY AN EQUAL OPPORTUNITY TO PARTICIPATE IN AND ENJOY THE BENEFITS OF A SERVICE, PROGRAM, OR ACTIVITY
CONDUCTED BY THE CITY. PLEASE CONTACT THE CRA AT (561) 737-3256 AT LEAST TWENTY-FOUR HOURS PRIOR TO THE
MEETING PROGRAM OR ACTIVITY IN ORDER FOR THE CRA TO REASONABLY ACCOMMODATE YOUR REQUEST.
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iII1i East Side ~ West Side~ Seaside Renaissance
eRA BOARD MEETING OF: March 9, 2010
I I Consent Agenda I
Old Business
New Business
Public Hearing I X Other
SUBJECT: Ocean Avenue Concert - Friday, March 18,2011.
SUMMARY:
· On Friday, March 18, 2010, the Boynton Beach CRA and the City of Boynton Beach will
present an Ocean Avenue Concert,
· Wildfire will be performing a mix of Reggae, Calypso and Island Music.
· This FREE concert will take place from 6:00 PM to 9:00 PM
· Located at the Amphitheatre next to the Schoolhouse Children's Museum on Ocean Avenue just
east of Seacrest.
· Food and Drink vendors are available.
· Please bring your folding chairs.
· Parking onsite.
· No pets please.
FISCAL IMPACT: Budgeted in line item 02-58500-480.
RECOMMENDATIONS:
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Special Events Director
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,eRA BOtRD MEETING OF: March9,2011
I I Consent Agen~a I I Old Business I I New Business I I Public Hearing I X I Other
ISUBJECT: Jovies on the Ave. - Friday, Aprill, 20l i.
'SUMMARY:
· On Friday, April 1, 2011, the Boynton Beach CRA and the City of Boynton will present a
Movies orl the Ave film screening,
· Toy Storyl3 PG-13 is the featured film.
· This FREE event will take place from 7:00 PM to 9:30 PM
· Located al the Amphitheatre next to the Schoolhouse Children's Museum on Ocean Avenue just
east of Sedcrest.
I
· Food and Drink vendor will have items for purchase.
· Bring youl folding chairs or blankets.
· Parking a~ailable onsite.
· No pets please.
FISCAL IMPACT: Budgeted in line item 02-58500-480.
I I
RECOMMENDATIONS: None
j
l}athy Biscui i I
Special Events Director
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Ii East Side~West Side~Seaslde Renaissance
eRA BO I RD MEETING OF: March 9, 2010
II I Consent Agenda I I Old Business I I New Business I I Public Hearing I X Other
I I
SUBJECT: 2nd Annual Mayors Challenge Run/Walk - Saturday, March 19, 2011.
)
SUMMARY:
· On SaturHay, March 19, 2010, Boynton Beach will present the 2nd Annual Mayors Challenge
· ~=:~t begins at 7:30 AM at 129 East Ocean Avenue right next to the Schoolhouse
Children'd Museum.
· Register er:ly and receive a free event t-shirt.
· Continental breakfast provided by Two Georges Waterfront Grille after the run/walk.
· Activities linclude; 3.5 K Run/Walk, family sidewalk chalk contest, Zumba warm-up, vendors
with free give-a ways, Steele Drum band and lots of fun for the entire family.
· Ample patking onsite.
I
· No pets pease.
,ISCAL IMP tCT: Budgeted in line item 02-58500-480.
RECOMMENDATIONS:
I
lCathy Biscuiti I
fpecial Events Director
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r The 2011 MIYlr.s Challenqe JK F"mlly F~~ RunIW",k Is Sponsored by the Followlnq Supporters:
I Bethesda ~ TEAM
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-1J."..' 'foe,. HEALTH CLUB
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VIII. CONSENT AGENDA
A. Approval of Minutes - eRA Special Board
Meeting February 1, 2011
Will be sent under separate cover.
VIII. CONSENT AGENDA
B. Approval of Minutes - eRA Board Meeting
February 8, 2011
Will be sent under separate cover.
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. East Side-West Side-Seaside Renaissance
eRA BOARD MEETING OF: March 9, 2011
x I Consent Agenda I
Old Business I I New Business
Public Hearing
Other
SUBJECT: Monthly Financial Report
SUMMARY: Monthly budget report to the CRA Board representing the revenues and expenses for
the month ending February 28, 2011.
FISCAL IMPACT: None
CRA PLAN, PROGRAM OR PROJECT: N/A
RECOMMENDA TIONS: Approve February financials.
12-0.
Susan Harris
Finance Director
T:\AGENDAS, CONSENT AGENDAS, MONTHLY REPORTS\Completed Agenda Item Request Forms by Meeting\FY 2010 _ 2011 Board
Meetings\03-09-11 Meeting\Financial Report.doc
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Reserved for Clerk of Court
Condominium Act, including, but not limited to, the making of Assessments, promulgation
of rules and execution of contracts on behalf of the Association.
(e) The power to borrow money, execute promissory notes and other evidences of
indebtedness and to give as security therefor mortgages and security interests in property
owned by the Association, if any, provided that such actions are approved by a majority of
the entire membership of the Board of Directors and a majority of the Units represented at
a meeting at which a quorum has been attained, or by such greater percentage of the
Board or Unit Owners as may be specified In the By-laws with respect to certain
borrowing. The foregoing restriction shall not apply if such indebtedness is entered into
for the purpose of financing insurance premiums, which action may be undertaken solely
by the Board of Directors, without requiring a vote of the Unit Owners.
(f) The power to adopt and amend rules and regulations conceming the details of the
operation and use of the Common Elements and Association Property.
(g) The power to acquire, convey, lease and encumber real and personal property. Personal
property shall be acquired, conveyed, leased or encumbered upon a majority vote of the
Board of Directors, subject to Section 8 hereof. Real property (including, without
limitation, any of the Units) shall be acquired, conveyed, leased or encumbered upon a
majority vote of the Board of Directors alone; provided that the requirements of Section 8
pertaining to the Unit Owners' approval of costs in excess of the threshold amount stated
therein (including the proviso regarding the debt IncUrred) shall also apply to the
acquisition of real property; provided, further, however, that the acquisition of any Unit as
a result of a foreclosure of the lien for Assessments (or by deed in lieu of foreclosure)
shall be made upon the majority vote of the Board, regardless of the price for same and
the Association, through its Board, has the power to hold, lease, mortgage or convey the
acquired Unit(s) without requiring the consent of Unit Owners. The expenses of
ownership (including the expense of making and carrying any mortgage related to such
ownership), rental, membership fees, taxes, Assessments, operation, replacements and
other expenses and undertakings in connection therewith shall be Common Expenses.
(h) The duty and obligation to cause the Condominium Property and the Association to satisfy
each and every of the Ordinance Obligations, if any, and to be in compliance with the
Ordinance, provided, however, that the Association shall use reasonable efforts to cause
the costs and expenses associated with same to be borne solely by the Owners of the
Transient Units availing themselves of any of the services required by the Ordinance.
(i) The obligation to (i) operate and maintain the surface water management system in
accordance with the pennit issued by the District, (ii) carry out, maintain, and monitor any
required wetland mitigation tasks and (iii) maintain copies of all permitting actions with
regard to the District
Q) The power to execute all documents or consents, on behalf of all Unit Owners (and their
mortgagees), required by all governmental and/or quasi-govemmental agencies in
connection with land use and development matters (including, wilhoutlimitation, plats,
waivers of plat, unities of title, covenants in lieu thereof, etc.), and in that regard, each
Owner, by acceptance of the deed to such Owner's Unit, and each mortgagee of a Unit by
acceptance of a lien on said Unit, appoints and designates the President of the
Association, as such Owner's agent and attorney-in-fact to execute any and all such
documents or consents.
(k) The Association shall assume all of Developer's and/or its affiliates' responsibilities to the
City and/or County, and its govemmental and quasi-govemmental subdivisions and
simHar entities of any kind with respect to the Condorninium Property (including, without
limitation, any and aU obligations imposed by any permits or approvals issued by the City
and/or County, as same may be amended, modified or interpreted from time to time) and,
in either such instance, the Association shall indemnify and hold Developer and its
affiliates harmless with respect thereto in the event of the Association's failure to fulfill
those responsibilities.
(I) The power and duty, without requiring the consent or joinder of Unit Owners and without
creating any obligation, to arrange for or otherwise provide, a transportation and/or shuttle
Dee/aratia!
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Section 4 - Proceedures for Application and pproval
A Completed and signed application included with application
Copy of Certificate of Sales Tax (60-8015506219-3), Copy
B Copy of all business and occupational licenses of Certificate of Registration, Copy of Boynton Beach
Business Tax Receipt (1100027801), Copyog Palm Beach
County Tax Recient (201038297)
C Copy of all corporate documents for the applying filled with the State of Florida (www.sunbiz,org)
business entity
0 Copy of executed multi-year commercial lease with Bobkatz Properties, Inc included with application
aareement
E Landlord SSN or Tax 10 FEr #65-0987891 (www.sunbiz.om)
Business plan, including executive summary and
F three-year financial projections of revenues and included with application
expenses
G Two (2) years of audited financials and corporate tax 2009 tax returns, 2010 financial statements (income
returns (for existina businesses only). statement and balance sheet)
H Two (2) years of tax returns for the owners of a new 2008 & 2009 tax returns for Jay Wertheim. 2008 & 2009
business tax returns for Harvey Lowenstein and Judith Zimmer
I Qualifications, experience and track records of statements for each owner included in application
business owners
Copy of design and construction plans associated with
J the proposed improvements - Interior Build-Out NA
Onlv
List of jobs to be created and filled including job
descriptions, pay range and weekly schedule. For
K existing businesses, provide a list of all current Statement included in application
positions including job descriptions, pay range and
weekly schedule.
A
S t' 5 Ex
R. b
t
ecron - cpense elm ursemen
A minimum of four 3 X 5 color photos of the Project
A (before any work on the project) -Interior Build-Out NA
Onlv
Risk Analysis for
The Opolis Group LLC
Weighted
Factor Grade W~ight G~c.te
Business Plan
Com~eteness of Application 70 40 28
Understanding of Financials 70 38 26.6
Owner Resume 85 34 28,9
Management Plan 40 32 12.8
Understanding of Market 50 29 14.5
Sales/Marketing Plan 50 27 13.5
FinanCials
Pro-Forma 50 20 10
Net Income 35 25 8.75
Operating Income 60 23 13,8
Profit Margin 45 15 6.75
Inventory Tumonver 90 20 18
Quick Ratio 85 15 12.75
Acid Test 50 17 8.5
Return on Assets 60 10 6
Current Ratio 85 20 17
Accounts Payable Turnover 85 10 8,5
WOrking Capital 25 15 3.75
~keven 90 10 9
Total Score /61.78% I
Scale:
90% - 100% = Exceptionally Well
80% - 89.99% = Better than expected
70% - 79.99% = Strong Stability
60% - 69,99% = Stability
50% - 59,99% = Passing
40% - 49,99% = Some Uncertainty
30% - 39.99% = Uncertainty
20% - 29.99% = Problematic
10% - 19,99% = Weakness
0% - 9,99% = Fault
Business Plan Score (50% of Total Score)
124.3 out of 200 possible
62.15%
Financials Score (50% of Total Score)
122.8 out of 200 possible
61.40%
Pro-Forma Income Statement
The Opolis Group LLC
For 2010 through 2013
(a II numbers in $000)
REVENUE 2010 2011 2012 2013
Gross sales $224 $229 $235 $241
Less sales returns and allowances $1 $1 $1 $1
Net Sales $223 $229 $234 $240
COST OF SALES
Beginning inventory $1 $0 $0 $0
Plus goods purchased / manufactured $94 $96 $98 $101
Total Goods Available $95 $96 $99 $101
Less ending inventory $0 $0 $0 $0
Total Cost of Goods Sold $94 $96 $98 $101
Gross Profit (Loss) $129 $133 $136 $139
OPERATING EXPENSES
Selling
Salaries and wages $22 $23 $23 $23
Commissions $5 $5 $6 $6
Advertising $2 $2 $2 $2
Depreciation $0 $0 $0 $0
Construction & Signs $15 $16 $16 $16
Total Selling Expenses $45 $46 $46 $47
General/Administrative
Legal & Accounting $45 $45 $46 $47
Employee benefits $2 $2 $2 $2
Payroll taxes $15 $15 $15 $15
Insurance $4 $4 $4 $4
Rent $25 $25 $26 $27
Utilities $13 $13 $13 $14
Depreciation & amortization $3 $3 $3 $3
Office supplies $1 $1 $1 $1
Travel & entertainment $5 $5 $5 $5
Postage $0 $0 $0 $0
Equipment maintenance & rental $0 $0 $0 $0
Interest $0 $0 $0 $0
Furniture & equipment $0 $0 $0 $0
Total General/Administrative Expenses $112 $114 $116 $118
Total Operating Expenses $157 $160 $163 $166
Net Income Before Taxes ($28) ($27) ($27) ($26)
Taxes on income ($ 1) ($1 ) ($1 ) ($1 )
Net Income After Taxes ($27) ($26) ($25) ($25)
Extraordinary gain or loss $0 $0 $0 $0
Income tax on extraordinary gain $0 $0 $0 $0
NET INCOME (LOSS) (<' ')7 \ ($26) (S25) ($25)
\.;J~, I
The Opolis Group LLC
Quick Ratio:
2009
0,41%
Current Ratio:
2009
3.39%
Profit Mar in:
2009
-197.84%
Can non-invento
I 2010
11,97%
Can all short-term assets cover short-term costs?
II 1~~~% I
How much revenues are profit?
I 2010 I
-10.53%
How much is left after short-term costs are paid?
I -$~~~g36 I
Breakeven Revenues How much must be sold to cover operation costs?
I 2009 II 2010 I
-$59,314 $110,191
Accounts Payable
Turnover:
2009
3.22
How often are su
I 2010
20.79
Return on Assets: How efficient are assets?
~~~~ II ~~~~ I
Net Income:
2009
-$27,532
Acid Test:
2009
0.16
What are Revenues after all costs, Iiabilites and taxes?
II -$~~~~72 I
What are revenues after all costs?
I 2010 I
$67,989
Do the current assets cover the current Iiabilites without inventory sale?
II ~~~g I
~~~~Y~Te~ eRA
- East Side~ West Side~Seaside Renaissance
eRA BOARD MEETING OF: March 9, 2011
I Consent Agenda I
Old Business I I New Business I I Public Hearing I X I Other
SUBJECT: CRA Policing Activity Report for the Month of February, 2011 and District Stats for
Months of January and February, 2010, (Info,Only)
SUMMARY:
January 2011:
Crimes - 51
Arrests - 14
Calls for Service - 1589
February 2011:
Crimes - 49
Arrests - 8
Calls for Service - 1358
FISCAL IMPACT: Cost budgeted in FY 2010-2011 from Project Fund 02-58500-460
CRA PLAN, PROGRAM OR PROJECT: CRA Policing Innovations- Downtown Vision and
Master Plan
RECOMMENDATIONS: Info, Only
Boynton Beach Police Department
Year-To-Date Crime Comparison Report
2010/2011
CRA District
FEBRUARY 2011
CRIMES
Feb-11 Feb-10 + /- Jan.11 + /- Y-T-D Y-T-D + /-
2011 2010
Criminal Homicide 0 0 0 1 -1 1 0 1
Sexual Offense 0 0 0 0 0 0 0 0
Robbery 3 4 -1 4 -1 7 8 -1
Aggravated Assault 9 4 5 4 5 14 7 7
Burglary 12 11 1 12 0 24 22 2
Larceny 24 35 -11 28 -4 53 68 -15
Auto theft 1 2 -1 2 -1 3 3 0
TOTAL 49 56 -7 51 -2 102 108 -6
Feb-10
0 0 0 1 -1 0
0 0 0 0 0 0 0 0
0 2 -2 3 -3 3 3 0
4 2 2 1 3 5 3 2
1 0 0 2 3 -1
3 4 -1 8 -5 11 8 3
0 -1 0 0 0 1 -1
8 9 -1 14 -6 22 18 4
:...- -111._'''11I-
Feb-11
Feb-10
1358
1317
41
1589
-231
2948
2692
256
3/3/2011
II
MONTH: February 2010
eRA Police Team
MONTHLY ACTIVITY REPORT
J
(' 2011 CRA COMMENT LOG
I
r
r
1('
I
I
.~~I -~""';;;~T r - -~ ,- --. --------;-,...~
~'tl1h'I' k~,J"1_""'~C'-. . ~
'::',~r:'" r-':\', '"_'~'-i", '-)-~,-- ":-",'- ,f. I"\i I
-Ji~:_J.. ~..':J.:=,..'':.j-'-:.~~ JUJ.u~ J l_d-,,~liLlJ.~~_~~~
EB UA NONE
~~~~Y~T2~ C
. East Side-West Side-Seaside Renaissance
eRA BOARD MEETING OF: March9,2011
I I Consent Agenda I
Old Business I I
New Business
Public Hearing I X I
Other
SUBJECT: Satisfaction of Mortgage - The Related Group - Marina Purchase
SUMMARY: In January 2007 the CRA executed a $2 million Promissory Note for the Marina
purchase secured by a Purchase Money Mortgage, The term was four years at 5% and the last payment
was made in January 2011,
Attached are:
1, Email from legal counsel with copy of the satisfaction of mortgage and promissory note marked
"paid in full," and
2. Copy of the CRA's Debt Service Schedule from FY 2006-2007 when the loan began. The
elimination ofthis debt will result in a reduction in debt service requirements from $2,700,407 in
this fiscal year to $2,513,013 in FY 2011-2012,
FISCAL IMP ACT: Reduction in debt service liability for next fiscal year of$187,394.
CRA PLAN, PROGRAM OR PROJECT: N/A
RECOMMENDA TIONS: Information Only
~
Susan Harris
Finance Director
T:\AGENDAS. CONSENT AGENDAS, MONTHLY REPORTS\Completed Agenda Item Request Forms by Meeting\FY 2010 - 2011 Board
Meetings\03-09-11 Meeting\Satisfaction of Mortgage - The Related Group - Marina Purchase.doc
Page 1 of I
Harris, Susan
From: Annabella Barboza [ABarboza@cityatty.com]
Sent: Thursday, February 17, 2011 2:59 PM
To: Harris, Susan; Brooks, Vivian
Cc: Jim Cherof; Kimberly Longo
Subject: Boynton Beach CRA / TRG-Boynton Beach - Satisfaction
Attachments: 20110217144051610.pdf
Dear Susan,
We received the original satisfaction of mortgage and original promissory note marked "paid in full"
from The Related Group via FEDEX today (see attached copies).
We will send the satisfaction for recording to the public records of Palm Beach County,
Upon receipt of the recorded satisfaction of mortgage, we will send the original documents for your
records,
Best regards,
Annabella Barboza
GOREN, CHEROF, DOODY & EZROL, P,A.
3099 East Commercial Boulevard, Suite 200
Fort Lauderdale, Florida 33308
Telephone (954) 771-4500 x309 * Fax (954) 771-4923
Email: abarboza@citvattv.com
www.citvattV.com
Offices in Fort Lauderdale and Delray Beach, Florida.
Disclaimer: This E-Mail is covered by the Electronic Communications Privacy Act, 18 USe. ~~ 2510-2521 and is
legally privileged. The information contained in this E-Mail is intended only for use of the individual or entity
named above. If the reader of this message is not the intended recipient. or the employee or agent responsible for
delivering it to the intended recipient, you are hereby notified that any dissemination, distribution, or copying of this
communication is strictly prohibited. If you receive this E-Mail in error. please notifY the sender immediately at the
phone number above and delete the information from your computer. Please do not copy or use it for any purpose
nor disclose its contents to any other person.
2/28/2011
I::i3 RELATED
OFFICE OF GENERAL COUNSEL
315 S, BISCAYNE BLVD, 4111 FLoOR
MIAMI, FLORIDA 33131
CONFIDENTIAL
February 16;2011
VIA FEDERAL EXPRESS
...:-
Annabella Barboza, Esquire
Goren, Cherof, Doody & Ezrol, P A
3099 East Commercial Blvd., Ste. 200
Fort Lauderdale, Florida 33308
Re: Boynton Beach CRA/ TRG-Boynton Beach, Ltd.
Dear Annabella:
Enclosed, per your request, are the original fully executed Satisfaction of Mortgage
and Related Instruments, together with the original Promissory Note stamped "Paid in Full"
for the mortgage loan to Boynton Beach Community Redevelopment Agency.
Please note that the Satisfaction of Mortgage has not been recorded. If you intend
for it to be recorded, you will need to arrange for recording at yout client's expense,
If you have any questions, please do not hesitate to contact me. Thank you,
Sincerely,
Eliz~~
Associate General Counsel
Following recording please return to:
Goren, Cherof, Doody & Ezrol, P.A.
3099 East Commercial Blvd., Suite 200
Ft. Lauderdale, Florida 33308
This instrument prepared by:
Betsy L McCoy, Esq.
The Related Group Office of General Counsel
315 S. BlsC8yne Blvd., Fourth Floor
Miami, Florida 33131
SATISFACTION OF MORTGAGE AND RELATED INSTRUMENTS
KNOW ALL MEN BY THESE PRESENTS that THE RELATED GROUP, a
Florida general partnership, flk/a The Related Group of Florida, whose address is 315 S.
Biscayne Blvd., Miami, Florida 33131, Attn: Betsy McCoy, General Counsel (hereinafter called
"Mort2a2ee"), the owner and holder of that certain Purchase Money Mortgage, Assignment of
Rents and Security Agreement (the "Mort2a2e") made as of January 25, 2007 from BOYNTON
BEACH COMMUNITY REDEVELOPMENT AGENCY, a public agency created pursuant
to Chapter 163, Part ill of the Florida Statutes ("Mort2a20r") to TRG-Boynton Beach, Ltd., a
Florida limited partnership ("Asshmor") as Mortgagee, recorded January 29, 2007 in Official
Records Book 21354 at Page 148 of the Public Records of Palm Beach County, Florida, and
assigned to The Related Group of Florida in accordance with that certain Assignment of Note,
Mortgage and Other Loan Documents ("Assi2llll1ent"), made as of January 23, 2007 and
recorded January 29,2007 in Official Records Book 21354 at Page 170 of the Public Records of
Palm Beach County, Florida, securing a Promissory Note in the stated principal sum of
$2,000~000.OO, which Mortgage encumbers the improved real property described on Exhibit "A"
hereto, having received full payment of the Mortgage and of the debt therein secured, hereby
acknowledges satisfaction of the Mortgage and hereby surrenders the Loan Documents and any
and all other documents referred to in the Mortgage as cancelled, and hereby directs the Clerk of
the Circuit Court of Palm Beach County, Florida, to cancel the same of record.
For purposes of this instrument, the term "Loan Documents" means collectively, the
Mortgage, Assignment and the following documents:
.,
~,
(a) That certain Promissory Note made by Mortgagor to Assignor, dated January 25,
2007; and
(b) That certaiD. Allonge made by Assignor to Mortgagee, dated January 26, 2007,
assigning payment of the Promissory Note referenced in section (a) above to Mortgagee; and
(c) DCC-l Financing Statement given by Mortgagor, as debtor, to Mortgagee, as
secured party, recorded on January 29,2007 in Official Records Book 21354, at Page 173 of the
Public Records of Palm Beach County, Florida.
Page 1 of4
IN WITNESS WHEREOF, the undersigned has executed this instrument effective as of
the Ji day of ~t1AflA1I} .20jl.
THE RELATED GROUP, a Florida general
partnership, f/k/a The Related Group fFlorida
1 ture of witness
printed name ofwitness~1 dQe ~~ wT
s~
printed name of witness: -:ai~ 't;J: /i?bell'1er
By:
Print Name:
Title:
Vice President
Attachment: Exhibit A - Legal Description
STATE OF FLORIDA )
)
COUNTY OF MIAMI-DADE )
The foregoing instrument was acknowledged before me this /I"'-day of r~;;tf,
2 OK, by Vi~ r!ol.(()$ . as 0~ I'IlE$IOer...r of THE RELA D
GROUP, a Florida general partnership, on behalf of the partnership. He is personally known to
me.
My commission expires: f-2P -2.tJ/A.
Notary pubr of Florida
Print N e of Notary public: I/~c PM-6
Commission # l>J) o76t:J5!k2
.........u.......u.....n...................
i HOP.E PAGE 5
i QJrnnl# 000780590 !
i 11:......... .w0J2012 i
. ~.. =
I PIDIIiI Notary ,....Inc 5
11...................."1610...................
(SEAL)
Page 2 of 4
Exhibit "A"
COMMERCIAL LOT, MARINA VILLAGE AT BOYNTON BEACH, LYING WITHIN
THE CITY OF BOYNTON BEACH, ACCORDING TO THE PLAT THEREOF AS
RECORDED IN PLAT BOOK 102 AT PAGE 14 OF THE PUBLIC RECORDS OF PALM
BEACH COUNTY, FLORIDA AND MORE PARTICULARLY DESCRIBED IN THE
DOCUMENT ATTACHED HERETO AND MADE A PART HEREOF.
Parcel Identification Number: 08-43-45-27-60-003-0()OO
Page 3 of 4
THIS IS A. LEGAL DESCRIPTION FOR ADDITIONAL LDT 1:
A. partIoIi ~the ~ Lot.1flawn on the Pf8f ~ ..... V/lIIgI AI. BarnIDri s.ch" m:lDIdIng b
.. Plat IherIof . tecarded In PIIIt ~ .102 Ii PIge 18 tlthe PublIc A8corda rI Palm BelIch Caunly,
FIarfda, belng more.........y de8cItbed. ~
o " .
" commence lib 8auIIeIIt Comer rI..... Plat "MIlrtnI YIIJIge lit BoynlDn II*cIf; ThInolI run N '
Q r.14'-1Cr E IIong ... Eat Une r1111d PIll b 21.18 filet to ill point; Thenae run N 8cr.CJO'.oD" W far
~.~ to the PokIt r111g11.1II1g d. PI.... ........... dIIcrII8d; ,
~ tam";'" point r1_Il/IIt1D run N 1ICJ"-GO'.oo" W'tJr 38.00" Thera N ~W.clO" E b45.DO ' ~
~ ICJ".CJO'~ E for 38.00 _ '11IIncI S "oOO'.ocr E tbr 45.00 fill to.. Pont r181g/~.
irw 1 JrlD Iq""reet, men Of..
) .
All '" .. the CJl)' a18Dyn1Dn Be8d1, PIIIrn Beach COUnty, FIarId8,
AND (~
nilS IS A ~ IPTION FOR ADDInONAl,:LOT 2:
/ ()
r.
aI LoIMIhown on the PIlI rI .,... VlIIIge No BayrdDn .....IIIIXlftIlIlIl to
In PIIl8oc*1021i Pege 18 tithe PublIc Recorda rI PIdm a.ch CaunIy,
deRIlbed . toIIawa;
o
Commence at the. :~of laid PIll "MarIna VIIIIge lit BoynIDn BIacIr; Thenca run N
Or-t4-i1er E Uqa ... W fA laid PlaI. b 21.18 ,.. to . point, laid point MIng the PoInt d
Beginning ria PIra.I ) .....;
Thence tom ..Id PoInI rI N 80"-<<1-00" W far 88.08 _ Thera N OO-..CJO.'OO" E far .c6.00
feet 1IIeIQ N 8O"-GO'.cxJ"W .81.,... N 00"..(10'.00" E for 27,88; N 8O".(JO'.oD" Efor 121.10
feet; Thence S Gr.14'.10" to .. ~dBeglnnlng.
Propery canIaInIB,493 8qLW8 -t. ~rJI''''
All lying wIIhIn the CIly of BoynIon ~ 8each County, FIortd8.
, /
A portion d ..
the PIId~
FIol'fa, being
1=
~
121.10'
ADDlTIClfW,.
LOU
~:
'.~
,
15{t7.
SCALE: 1 :30
30
.... ~
..
LEGEND:
P .O.C. -POINT OF' COMMENCEMENT
P.O.B.-PQHT OF' BEGlNI1ING
8.E ClORHER OF
MMJfA YUMEAT
IO'IN'ION IIEACH
PlAT lOOK 1~ PQ, 1.
~AL DESCRIPTION & SKETCH
OF A98tTIONAL LOT 1 & 2
Rnnk?1~hA/P~np1hR
D~l"'lo ") -1 ",f ")"
, p ~. I f) FEB 11 2011
$2,000,000.00
JEfF HOYOS
Vice President
-me. 'Rda-~ ~t.tf'
FOR VALUE RECEIVED the undersigned, Boynton Beach Community Redevelopment Agency, a
PROMISSORY NOTE
~)~~
Palm Beach County, Florida
Dated: January 25, 2007
public agency created pursuant to Chapter 163, Part ill of the Florida Statutes, (hereinafter referred to as "Maker")
promises to pay to the order of TRG-Boynton Beach, Ltd., a Florida limited partnership, or its successors or
assigns (hereinafter referred to as the "Payee"), at 315 S. Biscayne Boulevard, 3rd Floor, Miami, Florida 33131, Attn:
Matthew J. Allen or such other place as the holder hereof may from time to time designate in writing, the principal
sum of Two Million and NollOO ($2,000,000.00) Dollars, together with interest on so much thereon as is
outstanding from time to time at a fixed rate equal to five percent (5%) per annum (except in the event of maturity or
default as provided below). The aforesaid principal sum and interest shall be paid in lawful money of the United
States of America, which shall be legal tender in payment of all debts and dues, public and private, at the time of
payment. Such principal and interest shall be paid as follows:
Interest on this Note shall be computed on the basis of a 360-day year to be applied first to accrued and
unpaid interest, and the balance, if any, to principal. Maker shall pay forty-eight (48) monthly installments of
principal and interest under this Note in an amount equal to FoTty-Six Thousand Fifty-Eight and 59/1 00 Dollars
($46,058,59) commencing on February 25, 2007 (the "Note Date") and on the 25th day of each month thereafter
until and including the fourth anniversary of the date hereof, The entire unpaid principal and any accrued unpaid
interest thereon shall be due and payable on the fourth anniversary of the date hereof,
It is agreed that if any payment of principal or interest or any installment thereof, not be made within five
(5) days following the date that same is due as above provided; or in the event default be made in the performance or
compliance with any of the covenants and conditions of any security agreement now or hereafter in effect securing
payment of this Note, which default remains uncured for a period of five (5) days following receipt by Maker of
written notice thereof from Payee (unless the same can not be cured within such five (5) days, in which event, the
commencement of such action to cure the default and the diligent and continuing effort to cure same shall be
acceptable); or upon the insolvency, banlauptcy or dissolution of the Maker hereof; then, in any or all such events,
the entire amount of principal of this Note with all interest then accrued, shall, at the option of the holder of this
Note and without further notice (the Maker expressly waives notice of such default), become and be due and
MIA 17946667OV4 1/16/2007
collectible, time being of the essence of this Note. If this Note shall not be paid at maturity or according to the tenor
thereof and strictly as above provided, it may be placed in the hands of an attorney at law for collection, and in that
event, each party liable for the payment hereof, as Maker, endorser, guarantor, or otherwise, hereby agrees to pay
the holder hereof in addition to the sums above stated, a reasonable sum as an attorney's fee, which shall include
attorney's fees at trial level and on appeal, together with all reasonable costs incurred in connection therewith,
whether suit be brought or not. After maturity and during a period of default, this Note shall bear interest at the
highest rate permitted under then applicable law,
This Note is prepayable in whole or in part at any time without penalty or premium,
Nothing herein contained, nor in any instrument or transaction related hereto, shall be construed or so
operate as to require the Maker, or any person liable for the payment of the loan made pursuant to this Note, to pay
interest in an amount or at a rate greater than the highest rate permissible under applicable law. Should any interest
or other charges paid by the Maker, or any parties liable for the payment of the loan made pursuant to this Note,
result in the computation or earning of interest in excess of the highest rate permissible under applicable law, then
any and all such excess shall be and the same is hereby waived by the holder hereof, and all such excess shall be
automatically credited against and in reduction of the principal balance, and any portion of said excess which
exceeds the principal balance shall be paid by the holder hereof to the Maker and any parties liable for the payment
of the loan made pursuant to this Note, it being the intent of the parties hereto that under no circumstances shall the
Maker, or any parties liable for the payment of the loan hereunder, be required to pay interest in excess of the
highest rate permissible under applicable law,
This Note is secured by a Purchase Money Mortgage, Assignment of Rents and Security Agreement (the
"Mortgage") of even date herewith encumbering and conveying real estate and property (the "Mortgaged Property")
therein described and duly recorded among the Public Records of Palm Beach County, Florida, the terms and
provisions of which are incorporated herein by this reference,
As to this Note and the Mortgage and any other instruments securing the indebtedness evidenced under the
Note anellor Mortgage, the Maker, endorsers and guarantors severally waive all applicable exemption rights, whether
under the State Constitution, Homestead laws or otherwise, and also severally waive valuation and appraisement,
presentment, protest and demand, notice of protest, demand and any other notice of any kind, dishonor and
MIA 179466670v4 1/1612007
, '
nonpayment of this Note, and expressly agree that the Maturity Date of this Note, or any payment hereunder, may be
extended from time to time without in any way affecting the liability of the Maker, endorsers or guarantors.
Any transfer, assignment, conveyance, sale, lease or encumbrance of a legal or beneficial interest in the
Mortgaged Property in violation of the terms and provisions of the Mortgage, shall be deemed a default hereunder,
immediately entitling Payee to declare due and collectible the entire amount of principal of this Note with interest
then accrued, without further notice,
THE UNDERSIGNED WAIVES THE RIGIIT TO A TRIAL BY JURY IN ANY ACTION OR
PROCEEDING BASED UPON, OR RELATED TO, ANY ASPECT OF THE TRANSACTION IN
CONNECTION WITH WInCH TIllS NOTE IS BEING GIVEN OR ANY DOCUMENT EXECUTED OR
DELIVERED IN CONNECTION WITH SUCH TRANSACTION, TIllS WAIVER IS KNOWINGLY,
INTENTIONALLY AND VOLUNTARILY MADE BY THE UNDERSIGNED AND THE UNDERSIGNED
ACKNOWLEDGES THAT NO ONE HAS MADE ANY REPRESENTATIONS OF FACT TO INDUCE TIllS
WAIVER OF TRIAL BY JURY OR IN ANY WAY TO MODIFY OR NULLIFY ITS EFFECT, THE
UNDERSIGNED FURTHER ACKNOWLEDGES HAVING BEEN REPRESENTED IN CONNECTION WITH
THE TRANSACTION WITH RESPECT TO WInCH TIllS DOCUMENT IS BEING GIVEN AND IN THE
MAKING OF TIllS WAIVER BY INDEPENDENT LEGAL COUNSEL, SELECTED BY THE
UNDERSIGNED'S OWN FREE WILL, AND THAT THE UNDERSIGNED HAS HAD THE OPPORTUNITY TO
DISCUSS TIllS WAIVER WITH SUCH COUNSEL. THE UNDERSIGNED FURTHER ACKNOWLEDGES
HAVING READ AND UNDERSTOOD THE MEANING AND RAMIFICATIONS OF TIllS WAIVER
PROVISION,
TIllS NOTE IS TO BE CONSTRUED ACCORDING TO THE APPLICABLE LAWS OF THE STATE
OF FLORIDA.
BOYNTON BEACH
REDEVELOPMENT AGENCY
COMMUNITY
By:
MIA 179466670v4 1/1612007
ALLONGE
TO BE ATTACHED TO THAT CERTAIN PROMISSORY NOTE DATED
JANUARY 25, 2007 FROM BOYNTON BEACH COMMUNITY
REDEVELOPMENT AGENCY TO TRG-BOYNTON BEACH, LTD., A
FLORIDA LIMITED PARTNERSHIP IN THE ORIGINAL PRINCIPAL
AMOUNT OF $2,000,000.00
Pay to the order of The Related Group of Florida, a Florida general partnership, without
recourse.
TRG-BOYNTON BEACH, LTD.,
a Florida limited partnership
By: TRG-Boynton Beach, Inc.,
a Florida corporation, general partner
By. h~
Name: ANG
Title: VICE-PRJ:SIDENT
Dated: January 26, 2007
MIA 179530989v11/24/2007
s,s" J~D;S '\'1'JiSSO'~~r-~ ~ i$~ 'c' ~,..", '.t~~~L'..
,.:..,of..:,.,~., . _ ,'. ......... \1. I-- .
FY 2006-2007 $ 304,838 $ 1,386,613 $ 2,883,239
FY 2007-2008 $ 304,838 $ 1,386,613 $ 821,335 $ 552,703 $ 3,065,488
FY 2008-2009 $ 304,838 $ 1,389,700 $ 818,840 $ 552,703 $ 3,066,081
FY 2009-2010 $ 304,838 $ 1,385,650 $ 825,835 $ 552,703 $ 3,069,026
FY 2010-2011 $ 304,838 $ 1,389,525 $ 821,810 $ 184,234 $ 2,700,407
FY 2011-2012 $ 304,838 $ 1,385,900 $ 822,275 $ 2,513,013
FY 2012-2013 $ 304,838 $ 1,389,838 $ 816,975 $ 2,511,650
FY 2013-2014 $ 304,838 $ 1,385,838 $ 821,165 $ 2,511,840
FY 2014-2015 $ 304,838 $ 1,385,838 $ 824,335 $ 2,515,010
FY 2015-2016 $ 304,838 $ 1,389,638 $ 821,485 $ 2,515,960
FY 2016-2017 $ 1,705,000 $ 810,863 $ 2,515,863
FY 2017-2018 $ 1,706,750 $ 809,675 $ 2,516,425
FY 2018-2019 $ 1,705,500 $ 807,358 $ 2,512,858
FY 2019-2020 $ 1,706,250 $ 808,910 $ 2,515,160
FY 2020-2021 $ 1,702,250 $ 809,050 $ 2,511,300
FY 2021-2022 $ 1,707,250 $ 807,778 $ 2,515,028
FY 2022-2023 $ 1,703,500 $ 810,093 $ 2,513,593
FY 2023-2024 $ 1,706,250 $ 805,713 $ 2,511,963
FY 2024-2025 $ 2,514,920 $ 2,514,920
FY 2025-2026 $ 2,512,665 $ 2,512,665
Last Year
....Current
Next Year
TOTAL FY 2010-2011
to Debt Termination
$
1,829,026 $ 21,969,325 $ 16,425,068 $
184,234 $ 40,407,653
Interest Rates
5.65%
3% - 5%
4.6% . 5.6%
5.00%
~1~ctY~T8~ eRA
Ii East SideN West Side NSeaside Renaissance
eRA BOARD MEETING OF: March 9, 2011
I I Consent Agenda IX I Old Business I I
New Business
Legal
I Executive Director's Report
SUBJECT: Review of the Promenade DIFA Audit
SUMMARY: The CRA entered into a Direct Incentive Funding Agreement (DIF A) with Boynton
Waterways Investment Associates on April 25, 2005, The DIFA agreement requires that Boynton Waterways
provide an annual report to the CRA verifying their compliance with the terms of the DIFA. Boynton Waterways
provided the report to the CRA staff by the deadline contained in the DIF A (2/28/11),
The developer's requirements under the DIF A are outlined below:
Affordable Access Commercial
i. leases showing all terms and floor plans
10% of retail space or 1,920 sf will be rented at a price of 50% of the average rental rate of non-program space,
(See section 2G of Developers DIFA Application)
Based on analysis of comparable retail rentals in October 2010 the rent can be no higher than $12,50151.
Public Areas
i. As-buill plans identifying public spaces
ii. Copy of restrictive covenants relating to public areas in Property Owners Association Declaration of Covenants
iii. Copy of recorded public area restrictive covenant.
Public Parkina (111 free DubUc sDaces durlna term of aareement
i. As-built plans identifying public parking areas in garage
ii. Signage Identifying parking on exterior of building viewable from Federal Hwy, and Boynton Beach Blvd,
Hi. Public Parking spaces to be identified by painting "Public Parking" on the car stops
iv, Copy of restrictive covenants relating to public parking in Property Owners Association Declaration of Covenants
v. Copy of recorded pubJicparking restrictive covenant.
Performance Audit
i. Developer to provide performance audit by CPA re affordable access components of Agreement
ii. Submitted to CRA no later than last day of February for preceding year.
iii. Disbursement of funds only upon CRA's acceptance of audit.
iv. Funding disbursed annually by April 1 following CRA's acceptance of CPA annual audit report,
T:\AGENDAS, CONSENT AGENDAS, MONTHLY REPORTS\Completed Agenda Item Request Forms by Meeting\FY 2010 - 2011 Board
Meetings\03-09-11 Meeting\Promenade DIFA Update.doc
~~~~Y~T8~ eRA
. East Side-West Side-Seaside Renaissance
Both staff and legal counsel reviewed the documents submitted by the developer and find that the developer has
substantially met the terms of the DIF A with the exception of Section 7.2.3 of the DIF A which requires that the
public access walkways and plazas be recorded in the condominium declaration of covenants and that a
restrictive covenant be recorded in the public records, This deficiency can be easily cured by the developer
recording a restrictive covenant consistent with the DIF A language and acceptable to CRA legal counsel.
Based on these findings, staff is recommending that the CRA release to Boynton Waterways Investment their
share of the TIF created by the development less deductions for taxes and insurance incurred by the CRA while
the developer was leasing CRA land for their sales trailer after receipt of the recorded public access restrictive
covenant. This amount is $128,358,88 (See attached analysis ofTIF for FY 10/11)
FISCAL IMPACT: The CRA Finance Director budgeted $159,779 in FY lOlli, Therefore the funds are
available to distribute to Boynton Waterways Investment Associates (See attached Budget Summary Page) upon
Board approval.
CRA PLAN, PROGRAM OR PROJECT: Federal Highway Corridor Community Redevelopment
Plan
RECOMMENDA TIONS/OPTIONS: Authorize staffto distribute the TIF funds in the amount of
$128,358,88 to Boynton Waterway's Investment Associates with 30 days of receipt of the recorded restrictive
covenant pertaining to the public walkways and plazas,
. #~
Li L. Brooks
Interim Executive Director
T:\AGENDAS, CONSENT AGENDAS, MONTHLY REPORTS\Completed Agenda Item Request Forms by Meeting\FY 2010 - 2011 Board
Meetings\03-09-11 Meeting\Promenade DIFA Update. doc
9/30/2010
Assessed Valuations
Millaae Rates
City 6.763 6.763
County 4.344 4.750
I Revenues I
Projected TIF (Current Development) $ 6,993,122 $ 5,675,820 $ (1,317,302) -19%
TIF True Up @ 3.0% (174,828) (170,275) $ 4,553 -3%
Total TIF Revenue $ 6,818,294 $ 5,505,545 $ (1,312,749) .19%
Marina Revenues 926,700 926,700 $ 0%
Sub.Total 7,744,994 6,432,245 (1,312,749) .17%
Other Fundlna Sources
Fund Balance Allocation $ 500,000 436,680 $ (63,320) -13%
Encumbered Bond #2 Proceeds 239,628 300,000 $ 60,372 25%
Grant Revenue - NSP Funds from City 400,000 $ 400,000 100%
Grant Revenue - HUD for Children's Museum Windows 294,000 $ 294,000 100%
Budget Amendment - Marina Construction 404,649 $ (404,649) -100%
Rollover - FY 2008-2009 490,000 490,000 $ 0%
Fund Balance Allocation - Remaining from 4th SI. 500,000 500,000 $ 0%
Rollover - FY 09/10 Budget Reallocations 230,240 $ 230,240 100%
Encumbered Funds - HOB Project 867,629 281,660 $ (585,969) -68%
$
Budget Amendment - Seacrest Design 187,211 $ -100%
Project Fund Rollover - RIPS 99,805 $ -100%
Proceeds from Sale of Property - Ocean breeze Lots 600,000 $ -100%
EncumberedProject Fund - CRALLS Transfer 100,000 $ -100%
Total Other Funding Sources .26%
T9(~~.t!JvlMI'f~~gcI,W9t~lJ!i<.. 'i.X .S:4_~:<{'.-:'_sh~~:; ""''''':J;Z3 ' -2ti%
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Less: Ooeratlna EXDenses and Debt Service
Debt Service $ 3,119,526 2,650,907 $ (468,619) -15%
CRA Fixed Operating Expenses 2,186,723 1,781,501 $ (405,222) -19%
Marina Operating Expenses 926,700 926,700 $ 0%
Sub.Total Operating Expenses 6,232,949 5,359,108 (873,841) .14%
FUNDS AVAILABLE FOR PROJECTSIPROGRAMS $ 5,500,967 $ 4,005,717 $ (1,495,250) -27%
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$ 56 000
159 779
436 680 436 680 100%
396 325 430 000 33675 8%
400 000 400 000 100%
349 375 349 375 0%
294 000 294 000 100%
HOB Proiect 867 629 281 660 $ 1585 969 -68%
Ruth Jones Cotta~e 225 000 225 000 $ - 0%
Soecial Events 294 000 218000 $ (76 000 -26%
Marina Entrvwav Sionaoe 200 000 195 000 $ (5000 -3%
Children's Schoolhouse Museum Amohitheater 200 000 185 240 $ (14760 -7%
Construction Continoencv 145 000 145000 $ - 0%
Holidav House Renovations 120 625 120 625 $ - 0%
Grants-Commercial Subsidv. Interior Build Out Sionaoe 100 000 110000 $ 10 000 10%
Ocean Breeze West Proiect - 100 000 $ 100000 100%
Grants - Small Business-Commercial Facade 105 000 90 000 $ (15000 -14%
Desion & Enoineerino 100000 81 535 $ (18465 -18%
Leaal-Proiect Based 50 000 50 000 $ - 0%
Site Work & Demolition 50 000 25.000 $ 125 000 -50%
Marina Redesion/Construction 583 329 - $ 1583 329 -100%
Trollev 438 040 52 824 $ 1385 216 -88%
Grants - RIP 99 805 - $ 199,805 -100%
Grants - HAP 239 628 - $ 239 628 -100%
American Realtv Contract Termination 600 000 - $ 600 000 -100%
CRALLS Fundino Not Transferred 100000 - $ 100000 -100%
Seacrest Desion - Budoet Amendment 187211 - $ 187211 -100%
frmal'lfrOj~l:~pe.~~,. .:/, 5,500,967 4,005,718 (1,495,250) -27%
ISURPLUSIDEFICIT
$
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f . .' ll'I'-;'J,'i-i~Wj- ,;r,{bSWILl.'\i-:fr~M:''\'''c:i~'''<l"r;1='1-:-. '?,'/"':(if:''I'Sf.{;''(.l, .'.:' :',' " :''''::1
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$ 119,816
$ 32,000,000
Pro'ect Increment
$
31,880,184
$
0,006763
204,825
0.00475
143,859
$
TIF Revenue created by Project $ 348,685
Incentive Award = Award Factor X TIF Revenue created by Project
Award Factor 47,5%
Preliminary Incentive Award to Developer $ 165,625
Second Amendment Modification
Reduction in First Payment re Second Amendment to Direct Incentive
Funding Agreement dated April 24, 2008
Rent paid by developer May 2008 thru Nov. 2009 $ 11,400.00
Real Estate Taxes:
2008 $ 32,835.46
2009 $ 21,375.88
2009 Tax Refund due to Tax Challenge $ (5,544.97)
Total Taxes Paid from Effective Date of Second Amendment $ 48,666.37
Difference (Taxes paid by CRA less Rent Paid by Developer) $ 37,266.37
Amount due Developer $ 128,358.88
Total Remaining with CRA $ 220,326
~
*Millage Rates are set annually by the City and County
T:IOEVELOPMENT\PromenadeIOIFAIPromenade TIF Calculation for FY 2010-2011 - Funding Requirements
')~,' . 7
J - r 117 ( J 71 { (7
RESORT LIVING. DOWNTOWN STYlE.
February 25, 2011
Ms. Vivian L. Brooks
Interim executive Director
Boynton Beach CRA
915 South Federal Highway
Boynton Beach, FL 33435
RE: Direct Incentive Funding Agreement - The Promenade ("DIF A")
Dear Vivian:
I am in receipt of your letter to me of February 9,2011 requesting information that
establishes complIance with certain provisions of the DIFA. You should have by now
received three separate correspondences in response to that request:
1. Letter from Ms. StacI Rutman of Greenberg Traurig dated February 24,2011 (the
"Greenberg Response"),
2. Letter from Mr. Sam Wayland of Boynton Waterways Investment Associates,
LLC dated February 25,2011 (the "BWIA Response").
3. Letter from Ms. Donna Seidenberg, CPA, dated February 25,2011 (the "CPA
Certification"),
The combination of these responses provides written and documented confirmation that
all of the requirements of the DIFA have been met. Specifically, the Greenberg Response
addresses items 1, 4, 5, 7 and 8 listed in your letter. The BWIA Response addresses
items 2, 3 and 6 listed in your letter, The CPA Certification addresses the CP A audit
requirements enumerated in the first paragraph of the second page of your letter.
I did want to point out to you that we do not agree with your assertion in your letter that
the DIFA requires "strict compliance" with the covenants contained in the DIFA. We
would point out that that there is no mention of "strict compliance" in Section 6,2 entitled
"Commencement and Conditions of Funding. ' Section 8,5 entitled "Stnct Performance"
provides that failure to insist on strict performance shall not constitute a waIver of rights.
Sales Gallery 400 N. Federal Highway, Boynton Beach, FL 33435 I P (561) 364-4141 I F (561) 364-4199 I PromenadeCondos.com
G;t Developed by Panther Real Estate Partners. Premier Sales Group Inc., ExclUSive Sales and Marketing Agent, Licensed Real Estate Broker
Ms. Vivian L. Brooks
Interim executive Director
Boynton Beach CRA
Page 2
Vivian, BWIA has operated in good faith and performed all of the obligations imposed
on it under the DIP A. We have invested $150 million in a project that will serve as the
cornerstone for Boynton's Downtown Redevelopment Plan for many years to come. We
have maintained and continued to fund the Project through some of the most challenging
economic times in decades. We believe that we have been a good investor and partner in
Boynton Beach and with the CRA,
We will continue to work with your organization and with the City as our interests are
united in seeing this City grow and prosper. Thank you for your partnership so far, and
please let us know if there is anything else that we can provide in this regard.
Finally, I am prepared and available to attend your CRA meeting on March 11, 2011. I
am, however, uncertain as to how I can meaningfully contribute at that meeting. We
would welcome the opportunity to take you up on your offer to meet with us in advance
of the meeting to better understand what role we can play.
Sincerely yours,
BOYNTON WATERWAYS INVESTMENT ASSOCIATES, LLC.
By: New Boston Promenade Limited Liability Company, a Member
By: New Boston Promenade Limited Liability Company, its sole member
By: New Boston Fund IV, Inc. its sole General Partner
:~s4!~authOriZOO
/.) 1"~'}1 1) tJ. ,:/ ()
~~ESORT LIVING. DOWNTOWN STYlE.
Ms. Vivian L. Brooks
Interim Executive Director
Boynton Beach CRA
915 South Federal Highway, Boynton Beach, FL 33435
Re: Direct Incentive Funding Agreement - The Promenade
Dt:ar Ms. Brooks,
The purpose of this letter is to respond to items 2. 3 and 6 in your letter to Pryse Elam
dated February 9, 2011. As requested in the letter, we have included pictures and copies
of as-builts which indicate our compliance with all of the requirements, Our response is
as follows:
. 1. Item #2 - Photographs of interior and exterIOr signage identify public
parking location and spaces.
Typical Public Parking Space Layout (interior)
Sales Gallery: 400 N. Federal Highway, Boynton Beach, FL 33435 I P (561) 364-4141 I F (561) 364-4199 I PromenadeCondos.com
~ Developed by Panther Real Estate Partners. Premier Sales Group Inc., Exclusive Sales and Marketing Agent, Licensed Real Estate Broker
(' Close up of Public Parking space identification (interior)
r Signage viewed from Federal Highway (exterior)
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Signage viewed from Boynton Beach Boulevard (exterior)
2. Item #3 - A copy of as-built drawings depicting the location and number of public
parking spaces.
We have attached to this letter two exhibits:
Exhibit 1 - Sheet No. AO.2, This exhibit is not an as-built but is provided as it is
easier to identify the public parking spaces, This sheet is a part of the
construction drawings for the project that provides an overall view of the first
floor. The public parking spaces on this drawing have been highlighted in yellow
to make them easier to identifY. All of the parking spaces in the garage are
numbered, both on the plan and on the actual parking space (please see
photograph above), The specific public parking spaces are space # 1 and spaces
18-141 resulting in a total of 125 public spaces. Also included are four handicap
parking spaces.
Exhibit 2 - Sheets 4 through 6 of Exhibit "2" to the Declaration of
Condominium, These are pages taken directly from the As-Built Survey which is
required by Florida law to be recorded in the public record along with the
condominium documents. These sheets are identical to Exhibit 1 in that they
depict the location of the public parking spaces, but these are the officially
recorded as-builts that you requested, We have again highlighted the public
parking spaces in yellow to make them easier to identifY.
Close up of Public Parking space identification (interior)
Signage viewed from Federal Highway (exterior)
3. Item #6. Copies of as-built drawings depicting the public areas described in 7.2.2
of the DIFA.
We are again referring you to the two exhibits attached to this letter:
Exhibit 1 - Sheet No. AO.2. This exhibit is not an as-built but is provided as it is
easier to identify the public areas, This sheet is a part of the construction
drawings for the project that provides an overall view of the first floor, The public
areas on this drawing have been highlighted in green to make them easier to
identify,
Exhibit 2 - Sheets 4 through 6 of Exhibit "2" to the Declaration of
Condominium, These are pages taken directly from the As-Built Survey which is
required by Florida law to be recorded in the public record along with the
condominium documents. These sheets are identical to Exhibit I in that they
depict the location of the public areas, but these are the officially recorded as-built
drawings that you requested, We have again highlighted the public areas in green
to make them easier to identify.
I can be reached at 561-455-1600 should you have any questions,
A'4IJ
Sam Wayland
Project Manager
Boynton Waterways Investment Associates, LLC
Encl. Exhibit 1 - Sheets 4 through 6 of Exhibit "2" to the Declaration of Condominium
Exhibit 2 - Sheet No, AO.2
Cc: Pryse Elam, BWIA
File - Promenade/CRA
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DONNA SEIDENBERG, P.A.
Certified Public Accountants
February 25, 2011
To the Members
Boynton Waterways Investment Associates, LLC
Delray Beach, FL 33483
We have perfonned the procedures enumerated below, which were agreed to by the management of Boynton
Waterways Investment Associates, LLC solely to assist you in the submission of your perfonnance audit to the
Boynton Beach Community Redevelopment Agency ("CRA") pursuant to the Direct Incentive Funding Agreement
dated April 25, 2005. TIns agreed upon procedures engagement was conducted in accordance with attestation
standards established by the American Institute of Certified Public Accountants. The sufficiency of the procedures
is solely the responsibility of those parties specified in the report. Consequently, we make no representation
regarding the sufficiency of the procedures described below either for the purpose for which this report has been
requested or for any other purpose.
We performed the following procedures in order to detennine that you are offering 10% oftlle retail space (1,930
square feet) of your property (total retail square foot 19,300), The Promenade at 400 N. Federal Highway, Boynton
Beach, FL (The Promenade), at one-half (1/2) of the average rental rate of non-program space. As per
correspondence dated February 9,2011 provided to us from the CRA, this rate was detemnned to be no lngher than
$12.50 per square foot based upon an analysis of comparable retail rentals in October 2010.
· We confinned that Merv McDonald has been retained by you as the exclusive broker for The
Promenade.
· We verified that Merv McDonald is a licensed real estate broker in the State of Florida by verifying the
below two licenses on www.myfloridaIicense.com(seeExhibitA)
o Lancore Realty, Inc. - License number CQ259391.
o CDS Realty LLC dba Park View Realty- License numberCQI030188,
· We received outside verification from Merv McDonald of LancorelPark View Realty (see Exhibit B)
that confinns:
o Merv McDonald is a Florida licensed real estate broker that has been retained as the exclusive
broker for The Promenade.
o A minimum of 10% of the total 19,300 commercial square footage is being offered at fifty
percent (50%) or the market rate.
· We perfonned an online search on LoopNet for The Promenade and reviewed the online listing of the
retail space available and noted that the listing reflects 2,263 square footage available at the rental rate
of $12.50 per square foot (Space 4) (see Exhibit C).
· We inquired if there were any executed leases at the affordable access rate of $12,50 and were advised
that there were none to date.
2419 University Drive, Coral Springs, FL 33065
(954) 345-2722 / FAX (800) 664-1758
www.seidenbergcpa.com
Based upon the above procedures perfonned and our findings, we hereby find that The Promenade is offering retail
space of 1,930 square footage at the rate of$12,50 per square foot.
We were not engaged to and did not conduct an examination, the objective of which would be the expression an
opinion on the financial statements of Boynton WatelWays Investment Associations, LLC.. Accordingly, we do not
express such an opinion. Had we perfonned additional procedures, other matters might have come to our attention
that would have been reported to you.
g(}II~/O/ J'eid{gldew~ !7! at
Donna R. Seidenberg, P ,A.
February 24, 2011
Licensing Portal - License Search
Page 1 ofl
EXHIBIT A - 1 OF 2
9:31:24 AM 212512011
Data Contained In Search Results Is Current As Of 02/25/2011 09:29 AM.
Search Results
Please see our Qlossarv of terms for an explanation of the license status shown in
these search results.
For additional information, including any complaints or discipline, click on the name.
License
Number/
Rank
License Type
Name
Name
Type
Status/Expires
Real Estate
Corporation
LANCORE REALTY INC
CQ259391
RE Corp.
399 W PALMETTO PI< RD 102 BOCA RATON, FL 33432
95 SOUTH FEDERAL HIGHWAY BOCA RATON, FL 33432
PrImary
Current, Active
09/30/2012
LII:l!nsD Location Address-:
Main Address.:
~~
· denotes
Main Addtl!5S - This address Is the Primary Address on file.
Mailing Address - This Is the address where the malf associated with a particular license will be Sl!llt (If dlrrerent from the
MaIn Dr Ure"se lotatlon addresses).
Ucense location Address - This Is the address where the place of business 15 phvslcallV located.
CDntact Us :: 1940 North Monroe Street. Tallahassee FL 32.399 :: Call,Centertilldbllr .sh1te.fl,lIS :: CustDmer Contact Center:
85D.4B7.1395
The 51l1te I1f FlorlrJa Is an M/EEO emplover, CDDvrlnht 2007-2010 Sl11te or Rorld;,. Prhmcv Sl11temoot
Under FlorlrJa fc1VJ. e-mail addresses ilre public relDnIs, Ir YDU dD nDt WiUlt your e-mail address relusad In respmle ID il
pUblic-records request, do nDt send olectronlc nnlllo this enULy. Instead, contact Ule Dfflce bV Plane ar by ITlldltbnal man, If you
halll! any questlons I'l!lliIrdlng DBPIt's AOA web ncceSSlblllLy. plllllle contJll:t our Web 1~i15ter i1twebm;,..terlllldbnr.5ti1te,rl,u!{.
Licensing Portal - License Search
Page 1 ofl
EXHIBIT A - 2 OF 2
11:31:58 AM 2/25/2011
Data Contained In Search Results Is Current As Of 02/25/2011 09:29 AM.
Search Results
Please see our alossarv of terms for an explanation of the license status shown in
these search results.
For additional information, including any complaints or discipline, click on the name.
Name License
License Type Name Type Number/ Status/ Expires
Rank
Real Estate CDS REALTY LlC Primary CQ1030188 Current, Active
Corporation RE Corp. 03/31/2012
LIcense Location Address*l
Main Address*:
3299 NW SECOND AVE BOCA RATON, FL 33431
3299 NW SECOND AVE BOCA RATON, FL 33431
Real Estate
Corporation
PARKVIEW REAL TV
CQ1030188
RE Corp.
3299 NW SECOND AVE BOCA RATON, FL 33431
3299 NW SECOND AVE BOCA RATON, FL 33431
DBA
Current, Active
03/31/2012
LJcense Location Address.:
Main Address.:
~.~
· denotes
MaIn Address - This address Is the Primary Address on nle.
Mailing Address - This Is the address where the mall associated with a partlcular I!rense wlU be sent (If different from the
Main or Ueense LoCllUon addresses).
LIcense location Address - This Is the address where the place of business Is physIcally located.
CDnmct Us :: 1940 NDrth MDnrDe Street. Talluhassl!l! FL 32399 :: CilII.Centerl8ldbl:lr.smte.f1.us :: Custamer Cantact Center:
850.11117.1395
nle Stule of Flarldill5 an AA/EED emplaver. CoovrlDht 2001-2010 State I>f F1orll(l1. Prlvl1cv StiJtument
Under Florida Ii1w, e-milU ilddrl!SSes are pUblic remrds. If you do not want your e-mail address released In rl!SJDose 10 a
pUblic-records rllfluest, do not send electronic nvlllo this enUty. Inslead, contact Ule Omte by rhone ar bV tmdltb/llll mall, If vatl
have III1V quesUnns regardIng OaPR's ADA Vleb DlXtlsslbJllty, plell5l! canlilct our WdJ r~asler at wubmnsturtllldhnr.stnto.f1.us.
EXHIBIT B-1 OF 2
February 23, 2011
Ms. Donna Seidenberg, CPA
2419 University Drive
Coral Springs, FL 33065
Re: Direct Incentive Funding eRA
Boynton Beach, Florida
TIle Promenade - Boynton Beach. FL
Dear Ms. Seidenberg:
Please be advised that this letter shall confirm that Lancore Realty, Inc./Park
View Realty has been retained 8S the "exclusive" broker re the above noted property for
the purpose of "leasing" the commercial space, totaling 19.300 sq ft.
A minimum of 1.930 square feet, ten percent(l 0%). is being offered at :fifty
percent (50%) of the market rate.
Mervin D. McDonald is a licensed real estate broker in the state of Florida.
Lancore Realty, Inc.- Lic. number- CQ259391 and CDS Realty LLC dbaPark View
Realty- Lie. NumberCQI030188
Should you have any questions, required further documentation, please do not
hesitate to contact the undersigned.
Sincerely,
Merv McDonald
~ yy\'.,:p~~~
Broker
LancorelPark View Realty
Cc Pryse Elam
Sam Wayland
Vivian Brooks
3299 NW Boca Rafon Blvd, Suite 101 Bocn Raton, FL 3343 1 Phone: 561 819-6958 Fox: 561 278.6930
EXHIBIT B-2 OF 2
LANCORE
; REAl.TY
~ -'
~:
IL(fY
: 1 I ."; I
l:
LancaR! 'Realty (561) 367-9933 · Park View Realty (561) 819-6958
Merv McDonald · Rioh Robbie Jeremy Stewart · Lynlee Fraser Glynn
The Promenade
~-~boTfim~r'2i~:J.:Sp,a-ce. i= 6t::: leasc;~'
_I----=':_I,I:::.~, --J'.'__ ..,"11"_ 'l~_._ ..\. __~__..-~..~..__,L~~___...&.
400 N. Federal Highway, Boynton Beach, FL
· NEW COMMERCIAL COMPLEX 20,OOO+- sa FT
· RETAIL/ RESTAURANT / OFFICE BAYS FROM 660 sa FT
o HIGH TRAFFIC COUNTS - GREAT EXPOSURE
· EXCELLENT LOCATION TO GROW YOUR BUSINESS
LoopNet - The Promenade, Street Retail, 400 North Federal Highway, Boynton Beae!l, FL Page] of3
EXHIBIT C 1 OF 3
... ...~.. ... -..... ..--_._....._........_..._........'~._n..___..r__._.....~.... ...................._...._ .......
Print all the details of this listing in a proper format by clicking the "Print
listing" link on the right-hand side of each listing.
. . ..... --.. ....-....- -...-.-..-.-....--.--.-- ..-......-........... - -..............-_...__...._.._____.. ._ .__..nu_.._....
~
LoopNet"
#1 In Commercial Roal EsIBte Online
$0150 1~lhDn 1I1llfllllll,lIl!S 10' "Ie. 6.7 blllian sq, II, alll"",orlles Tor luase . ~ mllllan members Slnca J!!9S
Allele to SClIrch ReslIlIs
nesult 1 Df 2 Next Result
Rlllall Properly For LaasH
The Promenade
'100 NDrth Federal HIghway. Boynton Beach. FL 33,135
PrllSl!nted by
Parle VIew Realtv
Mln, Dlvlslble:
foIax, Contiguous:
Propertv Type:
Properly Sub-type:
Building Size:
Lot Slzl!:
Tntill5pace Available: 12,113 SF
Rcntal Rnte: $12.50 N
$20 /SF/Year
660 SF
3,894 SF
Retail
Street Retail
19,300 SF
" AC
Request addlUonal Informatlon
Jeremv Shlwart
(561) 819-6958 Ext: 2308
Contact listing brolcer
Name
FIrst Name
llIst Name
FInd Out Morn...
Emnll
Last Verlned 21 J B/20 11
USlIng ID 16768091
Phone
6 Spaces Available
alsplay Rental Ralc os fnlI!md..
ext
Space 1
Space Available: 3,894 SF
nenml Rute: $20/SF/Vrmr
Space Tvpe: Street Relllll
r~ln. Divisible: 1,200 SF
r.lax. ConUguous: 3,89~ SF
Lease Type: tfNN
PlI!ll5e 5I:nd me oddllllmal
Information about lltls
property.
Space 2
Space Avallilble: 2,373 SF
Rental nate: $2D /SF/Yeor
Spilce Type: Street Relllll
14111, DIvIsible: 1,200 SF
~lDlC, Contiguous; 2,373 SF
I.casl! Tvpe: NNN
DV~' "tllllllla UsIhID lIIalw", you DIU
lndlc:aIIntJ lhat '01 han IlIId, uJllan;l..d, Gnd
.pl1l1t IDlDaplllll'l Terms Gnd
r'nnr(ltlnnll.
Ilewla lDDplltllllap",blell1. AU C>II/'I""Y,
IJIDflllel lIB ..'DfIIlI1I:l1IV DI!lII8 . liaa
.....111.. 111>1 "'"' GIn _ mae Wlllnp
deUIIls, IlIIDp .....1bUIID ""'Is, ll/Id nara.
We "II."""'" "'"'r....I.d"'_,~
Ollr PrlvnCII Polkv.
.. ..o__.~. __ ..~._.._.__________.____.__._..._...__ ...._._._.. .......
Tra~lI~,~~ ~~!iW~raperty
Space 3
Spare AvaJlilblll:
66D SF
Sh,r;~&fI1iIJd
Link 10 This L1sll~n
Embed This on YOU! Web Slle
Wldoels BadM5 and TODls
Sham on FlICI!hook
ShllrP on L1nkl!rlln
Share on TwItter
'" ~,,~..... -....-.-..--'...---...--------...--... .-..~_.",_.- ---.-..-..-....
Relltal Rale:
$2D /SF/Your
Stn!et Retail
NNN
Space Tvpe:
Lense Type:
'_.__.,-----_...---....._.~.._._---
Spaca 4
Spilre AVilllable:
RelltillRale:
2,263 SF
$12.50/SF/vrmr
AdJif1l1JtHt1~'l/bns
~
SPilCe Tvpe:
LoopNet - The Promenade, Street Retail, 400 North Federal Highway, Boynton Beach, FL Page 2 of3
.
EXHIBIT C
2 OF 3
Stl'l!etRetill1
Leilse Tvlll!: NNN
DemDonmhlts
MveJUseml!l\l
Space 5
Spoct! Mullilble:
660 SF
!lentill Rntc:
'20 {SF/YetJr
Street Retail
SI'Dee Type:
lense Type: NNN
J!
j'
Space G
SIII1Cl! AvaJlilhle:
2,263 SF
Renlnl Rill":
$20 {SF/ValOr
Street Renlll
NNN
SpDee TVIIt!:
Leilst! Tvpe:
Attachments
Sn;lCp. 1'11111 (1I2 teD)
~ {19011l11
fIl!J::l: ('175 ItD)
Doscrlpl1on
Promenade Is a superb neVi milled use Development In East Boynton BeBch. Three restilurants
ulrnady lilgnerl up. Come Jain Boynton's nBwlllil: ratilll eamplelll HIgh quollty design ilnd mnstructloR
WIlli Dl'I!llt exposul'l! on FllIfeml Hlnhwav
HIgh trnmc Counls 35,000+ per dDV and ucpllent ellposure on the camer or Dayntan Buch Blvd,
ulld Federal HlghVlDY. Just a short walk to IntrDaJBstal Brldlle ilnd BeDch. Easv access to 19S as \'Iell.
The east side ovurJoolcs a pond/pllrk IInd nBtural areil. Nearby marina Dnd chorterboots moke thIs
IDcallon Ideol rar Dlvlnu/boiltlng/Rshlno supplV store, Captive audIence wIth mDny resIdents In the
building and 1000+ units In Ihe Immediate vicinity.
MDp Dr 400 North Federal Highway, Boynton Beach. FL 33435 (Palm Baneh County)
~
Conleel L1sllng Bro/lar 10 nnd aut more de/ails.
- -_.._-....-..-.~ -- .....-. --....-------..-- ..---.. '"-. -, -.--.-..---,.-..
LoopNet - The Promenade, Street Retail, 400 North Federal Highway, Boynton Beach, FL
Page 3 on
EXHIBIT C
3 OF 3
f>lore Froln this Broker
Jeremv Stewart
Spedal/zlngln orRce leasing/sales cnd lUMUry
rcsldonlla I sDles
VlelV ProOlo
.1'
.t.
..=- '."
.
:!~nl!; """"ml
Hwl.
DeJ/ill' 01!8dl. FL
$10,000.000
]].000 SF
r ~
IM1
,n, 2]2 !;r; 5111
Del/ilV DI!aCI., FL
&1.995.000
Additional Information for 400 N Federal Highway, Boynton Beach, FL 33435
View tho ProDertv RI!CDrtI (Dr this address to access addltlDnallnfllfmlltlan such DS hlSlorlcolllsUngs, property detail!!, 11111 details, olVners, mortgages,
tenants, and more.
Asking Prlco Indox Trends lor Boynlon Beach. FL Retail For LaBso
A.ldOlI Rentfor BDyntan Belich. Fl.ReI1lB for Ll!lI.e 1!iISFlYellr)
535.001
5:10.001 /-.........-\
I .-.-...........1 ,_
J..............- "'
5'6.00 I
"'.1~
516.00-,----.--..,___.__,_
Jon DO Jon 07 Jan DO
~
"~
~~
.
Jon 09
,-..-.
Jon 1D
- SlIIln - Mel", - COllnl\, - CllY
~
LlIapHd'
V5. 3 mo.
Nev 10 prlDr y-O-y
. StaIn $15.57 -1,4% -9.6%
Helm $19.56 -0,9% -3.0'lft
~DlInly$18.5D -1.1% -6.3%
City $19.61 -l.4% -1'1.1%
View BoynlDn Bendl '''ariml Trnnrlr. for other prDperty types ror !!ille Dr lease. Learn mDrn about the chart In(D.
The I"ramlalte" itbave 1r.1!i b\!l!n oblnlnad '10m scurces bellevetl rellllWa, While \Va do nol dllllblll$ atCIIr.ICV QI! halle nollll!rlRad Il and make noguaranleo. Ylarmnly Dr replasllIIlaUolI
n1raulll. 1115 your responNtlHl,ly 10 .ndl.'llemlallllr aI/lnrm lIS llttllracv and mmplcll!II1IIiS./Vr( proJedlon!o opinions, ilIi!IlI1I1jI\lDns. Or esllmates Wicd Drl! ror I!IllImpfa DnlVll11d dD .lal
replD!lllnllllD cuncn' or rulu. e lIerrD1lllllllCa Dr 1I.e praperty. Thn valua Drthls IntllSDtllon la ~ depend, on In alld olll1lrraclors whldlsllaufd bt! l!IIaluall!ll by \'Our la.. Rn;u,clnl. lInd '.p.,1
DIM,OIS. You Dnd vau. ndlll'DIS .hnulll amdud it Cil.eru1, lnd.pend,,"1 InvllSt/goUon or Ih. """",rlV 10 determine 10 \'Ilu'SlIl1s1ildlun Ihe SUllabPllr or Ihe Plllptr\l' for ~urneed5, TO.P
IIl1s hll GOIlOIl!
Real Estate Portfolio Mqt
Expert management of your real estate portFolio 305-755-9295
Fa mllyOfflce5peclallst.com
o CDnlDt.I U. Ad..n... PrapaJlY All"", II, Plou I'mlutlJ SIIa Hop ',,"moru.. P,t..<'( "'11cy
clHfH I BI.tBII)ScIIl' L.......,........
;..tt, .,.... .
{l7DIIIJIIIl,tllIl. I.c.
III GreenbergTraurig
S/nci 1. flu/mml
(305) 579-0787
(305) 961-5787 - Direc/ Fax
f..mall: rmmanS@g/lml..com
February 24, 2011
VIA OVERNIGHT
Ms. Vivian L. Brooks
Boynton Beach CRA
915 South Florida Highway
Boynton Beach, Florida 33435
Re: Direct Incentive Funding Agreement - PROMENADE CONDOMINIUM (the "Condominium")
Dear Ms, Brooks:
It was nice speaking with you today. Per our conversation, the enclosed package shall replace the
package that arrived on Tuesday, I truly appreciate your discretion in this matter, Should you have any
questions, please feel free to call me.
Thanks,
,--,if-;{7['~/i /) /Z.i~_.f'-y!'v--
Slaci J, Rutman
riA 1!;~U~~~~'6.3frfit1f!I ~t: ~01hoRNEVS AT LAW tI WWWGTLAWCO,'v1
333 Averlu(> of the Americas" Suite 4.100 P Miami. FL 33131-3238 P Tel 305579.0500 A Fax 305.579.0717
II GreenbergTraurig
Staai J. Rulllmn
(305) 579-0787
(305) 961-5787 - Direct Fax
Ell/ail: rtIlmal/s@glluw.com
February 24, 2011 .
VIA OVERNIGHT
Ms. Vivian L. Brooks
Boynton Beach CRA
915 South Florida Highway
Boynton Beach, Florida 33435
Re: Direct Incentive Funding Agreement - PROMENADE CONDOMINIUM (the "Condominium")
Dear Ms, Brooks:
This firm represents Boynton Waterways Investment Associates, LLC, a Florida limited liability
company, the Developer (the "Developer") of the above-referenced condominium, We have and continue to
represent the DevElloper in connection with the preparation of the offering Prospectus for the Condominium,
including, but not limited to the recording of the Declaration of Promenade Condominium in the public records of
Palm Beach County (which serves to create the condominium). We are in receipt of a copy of your letter dated
February 10, 2011, requesting certain information from the Developer, evidencing the Developer's compliance
with the Direct Incentive Funding Agreement (the "DIFA"). The Developer has requested that we respond to
items 1,4,5, 7 and 8 in that letter.
In order to comply with the requirements of sectlon 7.1 and 7.2 ofthe DIFA, the proposed Declaration of
Promenade Condominium was amended to add Section 7.4 City Covenants to the Declaration of Promenade
Condominium prior to recording, I have enclosed a copy of the Declaration of Promenade Condominium which
was recorded on April 23, 2010 in Official Records Book 23811 at Page 1695 of the public records of Palm
Beach County, Florida (the "Declaration"), With respect to items 1.4,5,7, and 8 in your letter, I direct you to
subsection (0 of Section 7.4 set forth on page 17 of the Declaration. Additionally, for your ease of reference,
below I have copied 7.4(n and further highlighted the relevant language which directly corresponds to items
1,4,5,7 and 8, respectively:
Item 1:
7.4(n This Section 7.4 shall remain in effect for the life of the Condominium Association
notwithstanding any foreclosure of the project by any lender owning a mortgage encumbering
the Condominium. Additionally, these provisions shall be superior to all after-imposed liens
and encumbrances, including, without limitation, any mortgages on the Condominium, except
any liens and/or encumbrances that are given priority as a matter of law,
Item 4 & 5:
7.4(1) This Section 7.4 shall remain in effect for the life of the Condominium Association
notwithstanding any foreclosure of the project by any lender owning a mortgage encumbering
the Condominium. Additionally, these provisions shall be superior to all after-imposed liens
and encumbrances, including, without limitation, any mortgages on the Condominium, except
any liens and/or encumbrances that are given priority as a matter of law.
Item 7: l.4m
GREENBERG TRALJRIG, PA. . ATTORNEYS AT LAW. WWWGTLA'NCOM
333 Avenue of the Arnerica, . Suite 4400 n Miarni. FL 33131- 3238 . Tel 305579.0500 . Fax 305579.0/1/
Ms. Vivian L Brooks
Boynton Beach CRA
February 24, 2011
Page 2
7.4(ij This Section 7.4 shall remain in effect for the life of the Condominium Association
notwithstanding any foreclosure of the project by any lender owning a mortgage encumbering
Ihe Condominium. Additionally, these provisions shall be superior 10 all after-imposed liens
and encumbrances, including. without limitation, any mortgages on the Condominium, except
any liens and/or encumbrances that are given priority as a matter of law.
Item 8: 7.4(D
7.4(~ This Section 7.4 shall remain in effect for the life of the Condominium Association
notwithstanding any foreclosure of the project by any lender owning a mortgage encumbering
the Condominium. Additionally, these provisions shall be superior to all after-imposed liens
and encumbrances, including, without limitation, any mortgages on the Condominium, except
any liens and/or encumbrances that are given priority as a matter of law.
The foregoing items and the enclosed Declaration establish the Developer's compliance with
the specified provisions of the DIFA. If you have any questions or comments regarding the foregoing, please
feel free to contact me.
Sincerely,
~;(1ce/f 9 fjL l)f-)'v:!-<A-
Staei J. Rutman
MIA 181719534v3
GR[Er'-jP.FRG TrUdF~iC, 1)/\ .. AT'!C1f'i'J['I':, _\'}" lA\f1 h \,\".-\.\:.,'lr'TI.'\\VC(\\',
IIIIIIIIIII.IIIIIIII~U
This inslrumoot prepared by, or under the supervision of (and after recording,
relurn to):
CFN 20~001S1514
OR BK 2381~ PG ~695
RE ORDEn 1M/23120111l 13:17:47
Pa . Beach County, Florida
Sh on R. Bock,CLERK & COMPTROLLER
Pg 1695 - 1824; t130pgs)
Gary A. Saul, Esq.
Greenberg T raurig, P.A.
1221 Brickell Avenue
Miami, FL 33131
Reserved for Clerk 01 Court
DECLARATION
OF
PROMENADE CONDOMINIUM
Boynton Waterways Investment Associates, LLC, a Florida limited liability company, hereby declares:
1. Introduction and Submission.
1.1 The Land. The Developer (as hereinafter defined) owns the fee title to certain land located in Palm
Beach County, Florida, as more particulally described in Exhibit "1" attached hereto (the "Land').
1.2 Submission Statement Except as set forth in this Subsection 1.2, the Developer hereby submits
the Land and aU improvements erected or to be erected thereon and all other property, real,
personal or mixed, now or hereafter situated on or within the Land - but excluding all public or
private (e.g. cable television andJor other receivilg or transmitting lines, fiber, antennae. or
equipment) utility installations therein or thereon and all leased property therein or thereon - to the
condominium form of ownership and use in the manner provided for in the Florida Condominium
Act as it exists on the date hereof and as it may be hereafter renumbered. Without limiting any of
the foregoing, no property, real, personal or mixed, not located within or upon the Land as
aforesaid shall for any purposes be deemed part of the Condominium or be subject to the
jurisdiction of the Association, the operation and effect of the Florida Condominium Act or any rules
or regulations promulgated pursuant thereto, unless expressly provided.
1.3 Name. The name by which this condominium is to be identified is PROMENADE CONDOMINIUM
(hereinafter called the 'Condominium').
2. Definitions. The following terms when used in this Declaration and in its exhibits, and as it and they may
hereafter be amended, shall have the respective meanings ascribed to them in this Section, except where
the context clearly indicates a different meaning:
2.1 "Act' means the Florida Condominium Act (Chapter 718 of the Florida Statutes) as it exists on the
date hereof and as it may be hereafter renumbered.
2.2 "Articles' or 'Articles of Incorporation' mean the Articles of Incorporation of the Association, as
amended from time to time.
2.3 'Assessmenr means a share of the funds required for the payment of Common Expenses,
Residential Umited Common Expenses, Commercial Umited Common Expenses and/or Transient
Limited Common Expenses which from lime to time are assessed against the Unit Owner.
2.4 "Association" or "Condominium Association" means PROMENADE (BOYNTON BEACH)
CONDOMINIUM ASSOCIATION, INC., a Florida corporation not for profit, the sole entity
responsible for the operation of the Condominium.
2.5 'Association Property" means that property, real and personal, which is owned or leased by, or is
dedicated by a recorded plat 10, the Association for the use and benefit of its members.
2.6 'Board' or "Board of Directors' means the board of directors, from time to time, of the Association.
Directors must be natural persons who are 18 years of age or older. Any person who has been
convicted of any felony by any court of record in the United States and who has not had his or her
right to vote restored pursuant to law in the jurisdiction of his or her residence is not eligible for
Board membership (provided, however, that the validity of any Board action is not affected if it is
later determined that a member of the Board is ineligible for Board membership due to having been
convicted of a felony).
Reserved for Clerk of Court
2.7 'Building' means the structure(s) in which the Units and the Common Elements are located,
regardless of the number of such structures, which are located on the Condominium Property.
2.8 'By-Laws" mean the By-Laws of the Association, as amended from time to time.
2.9 'Charge' shall mean and refer to the imposition of any financial obligation by the Association which
is not an Assessment as defined by Subsection 2.3 above. Accordingly, as to Charges, the
Association will not have the enforcement remedies that the kt grants for the collection of
Assessments.
2.10 'Commercial Limited Common Elements' mean and refer to: (a) the areas, if any, identified as
such on Exhibit '2" attached hereto, and (b) any valet and/or other services and/or areas serving
only the Commercial Units and their guests, tenants and/or invitees.
2.11 'Commercial Limited Common Expenses' shall have the meaning given to it in Subsection 3.3(b)
below.
2.12 'Commercial Units' mean and refer to those Units designated by the prefix 'CU-' on Exhibit '2'
attached hereto. References herein to 'Units' or 'Parcels' shall Include the Commercial Units
unless the context would prohibit or it is otherwise expressly provided. The designation of Units as
'Commercial' is for ease of reference only and is not intended to limit or define the permitted uses
of those Units,
2.13 'Committee' means a group of Board Members, Unil Owners or Board Members and Unit Owners
appointed by the Board or a member of the Board to make recommendations to the Board
regarding the proposed annual bUdget or to take action on behalf of the Board.
2.14 'Common Elements' mean and include:
(a) The portions of the Condominium Property which are not included within the Units and/or
the Association Properly.
(b) All structural columns and bearing walls regardless of where located.
(c) Easements through Units for conduits, ducts, plumbing, wiring and other facilities for the
fumishing of utility and other services to Units, Common Elements and/or the Association
Property.
(d) An easement of support in every portion of a Unit which contributes to the support of the
Building.
(e) The properly and installations required for the fumishing of utilities and other services to
more than one Unit or to the Common Elements and/or to the Association Property.
(Q Any and aU portions of the life Safety Systems (as hereinafter defined), regardless of
where located within the Condominium Property,
(g) Any other parts of the Condominium Properly designated as Common Elements in this
Declaration, which shall specifically Include the surface water management system, if any,
serving the Condominium.
Some components of the Condominium which are typical 'common elements' of a condominium
have instead been designated as Residential Umited Common Elements, Commercial Limited
Common Elements, and/or Transient Limited Common Elements. References herein to Common
Elements also shall include the Residential limited Common Elements, Commercial Limited
Common Elements and Transient Limited Common Elements unless the context would prohibit or
it is otherwise expressly provided,
2.15 'Common Expenses' mean all expenses incurred by the Association for the operation,
management maintenance, repair, replacement or protection of the Common Elements and
Association Property, the costs of carrying out the powers and duties of the Association, and any
other expense, whether or not included in the foregoing, designated as a 'Common Expense" by
the Act, the Declaration, the Articles or the Bylaws. For all purposes of this Declaration, 'Common
Expenses'shall also include, without limitation, the following: (a) all reserves required by the Act or
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otherwise established by the Association, regardless of when reserve funds are expended; (b) the
cost of a master antenna television systern or duly franchised cable television service obtained
pursuant to a bulk contract serving all Units (as distinguished from any antennas, receivers or other
equipment which may be Installed within or adjacent to any of the Commercial Units as elsewhere
provided herein); (c) the cost of any bulk contract for broadband, telecommunications, sateUite
and/or internet services, if any, serving all Units; (d) if applicable, costs relating to reasonable
transportation services, a beach or local shutue, road maintenance and operation expenses,
management, administrative, professional and consulting fees and expenses, and in-house and/or
interactive communications and surveillance systems; (e) the real property taxes, Assessments
and other maintenance expenses attributable to any Units acquired by the Association or any
Association Property; (~ to the extent that the Association determines to acquire exterior storm
shutters for all or any portion of the Condominium Property, all expense of Installation, repair, and
maintenance of same by the Board (provided, however, that a Unit Owner who has already
installed exterior storm shutters (or other acceptable hurricane protection) for his or her Unit shall
receive a credit equal to the pro rata portion of the assessed installation cost assigned to each
Unit, but shall not be excused from any portion of expenses related to maintenance, repair,
replacement or operation of same), including, without limitation, any and all costs associated with
putting the shutters on in the event of an impending storm (without creating any obligation on the
part of the Association to do so) and, if the Association elected to put shutters on, the costs of
taking the shutters off once the storm threat passes; (g) any lease or maintenance agreement
payments required under leases or maintenance agreements for mechanical or other equipment
anellor supplies, including without limitation, leases for trash compacting, recycling and/or laundry
equipment, if same is leased by the Association rather than being owned by it; (h) all expenses
related to the installation, repair, maintenance, operation, alteration anellor replacement of Ufe
Safety Systems (as hereinafter defined), (i) any and all costs, expenses, obligations (financial or
otherwise) and/or liabilities of the Association anellor running with the land pursuant to any
restriction, covenant, condition, limitation, agreement, reservation and easement now or hereafter
recorded in the public records; 0) any unpaid share of Common Expenses or Assessments
extinguished by foreclosure of a superior lien or by deed in lieu of foreclosure; (k) costs of fire,
windstorm, flood, liability and all other types of insurance including, without limitation, and
specifICally, insurance for officers and directors of the Association and costs and contingent
expenses required to participate in a self-insurance fund authorized and approved pursuant to
Section 624.462, Florida Statutes; (I) costs of water and sewer, electricity, gas and other utilities
which are not consumed by and melered to individual Units; and (m) costs resulting from damage
to the Condominium Properly which are necessary to satisfy any deductible and/or to effect
necessary repairs which are in excess of insurance proceeds received as a result of such damage.
Common Expenses shall not include any separate obligations of individual Unit Owners.
References herein to Common Expenses also shall include Residential Umited Common
Expenses, Commercial Umited Common Expenses and Transient Umited Common Expenses
unless the contexi would prohibit or il is otherwise expressly provided.
2.16 'Common Surplus' means the amount of all receipts or revenues, including Assessments, renls or
profits, collected by the Association which exceeds Common Expenses.
2.17 'Condominium" shall have the meaning given to it in Subsection 1.3 above.
2.18 'Condominium Parcel' means a Uniltogether with the undivided share in the Common Elements
which is appurtenant to said Unit.
2.19 'Condominium Property" means the land, Improvements and other property or property rights
described in Subsection 1.2 hereof, subject to the limitations thereof and exclusions therefrom.
2.20 'County" means the County of Palm Beach, Stale of Florida.
2.21 "Declaration' or 'Declaration of Condominium' means this instrument and all exhibits attached
hereto, as same may be amended from time to time.
2.22 "Developer" means Boynton Waterways Investment Associates, LLC, a Florida IImtted
liability company, its successors, nominees, affdiates and such of its assigns as to which the
righls of Developer hereunder are specifically assigned, Developer may assign all or a portion of
its rights hereunder, or all or a portion of such rights in connection with specific portions of the
Condominium. In the ellent of any partial assignment, the assignee shall not be deemed the
Developer, but may exercise such rights of Developer as are specifICally assigned to it. Any such
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assignment may be made on a nonexclusive basis. Notwithstanding any assignment of the
Developer's rights hereunder (whether partially or in full), the assignee shall not be deemed to
have assumed any of the obligations of the Developer unless, and only to the extent that, it
expressly agrees to do so in writing. The rights of Developer under this Declaration are
independent of the Developer's rights to control the Board of Directors of the Association, and,
accordingly, shall not be deemed waived, transferred or assigned to the Unit Owners, the Board or
the Association upon the transfer of control of the Association.
2.23 "Dispute., for purposes of Subsection 18.1, means any disagreement between two or more parties
that involves: (a) the aulhority of the Board, under any law or under this Declaration, the Articles or
By-laws to: (1) require any Owner to take any action, or not to take any action, involving that
Owner's Unit or the appurtenances thereto; or (2) alter or add to a common area or Common
Element; or (b) the failure of the Association, when required by law or this Declaration, the Articles
or By-laws to: (1) properly conduct elections; (2) give adequate notice of meetings or other
actions; (3) property conduct meetings; or (4) allow inspection of books and records. 'Dispute'
shall not include any disagreement that primarily involves tiOe to any Unit or Common Element; the
interpretation or enforcement of any warranty; or the levy of a fee or Assessment or the collection
of an Assessment levied against a party.
2.24 "Division. means the Division of Florida Condominiums, Timeshares and Mobile Homes of the
Department of Business and Professional Regulation, State of Florida, or its successor.
2.25 "First Mortgagee' shall have the meaning given to it in Subsection 13.6 below.
2.26 "Improvements. mean all struclures and artifICial changes to the natural environment (exclusive of
landscaping) located or to be located on the Condominium Property, including, but not limited to,
the Building.
2.27 "Institutional First Mortgagee' means a bank, savings and loan association, insurance company,
mortgage company, real estate or mortgage investment trust, pension fund, an agency of the
United Stales Government, a government sponsored entity, mortgage banker, the Federal National
Mortgage Association ('FNMA.), the Federal Home Loan Mortgage Corporation ("FHLMC'), any
lender advancing funds to Developer secured by an interest in any portion of the Condominium
Property or any other lender generally recognized as an institutional lender, or the Developer,
holding a first mortgage on a Unit or Units. A 'Majority of Institutional First Mortgagees' shall mean
and refer to Institutional First Mortgagees of Units to which at least fifty-one percent (51 %) of the
voting interests of Units subject to mortgages held by Institutional First Mortgagees are
appurtenant.
2.28 'Insured Property' shall have the meaning given to it in Subsection 14.2(a) below.
2,29 'Land' shall have the meaning given to it in Subsection 1.1 above.
2.30 'Ufe Safety Systems' mean and refer to any and aU emergency lighting, emergency generators,
audio and visual signals, safety systems, sprinklers and smoke detection systems, which are now
or hereafter installed in the Building, whether or not within the Units. All such Life Safety Systems,
together with all conduits, wiring, electrical connections and systems related thereto, regardless of
where located, shall be deemed Common Elements hereunder. Without limiting the generality of
the foregoing, when the context shall so allow, the Life Safety Systems shall also be deemed to
include all means of emergency ingress and egress, which shall include all stairways and stair
landings. Notwithstanding the breadth of the foregoing definition, nothing herein shall be deemed to
suggest or imply that the Building or the Condominium contains all such Life Safety Systems.
2.31 'Umited Common Elements' mean those Common Elements the use of which is reserved to a
cerlain Unit or Units to the exclusion of other Units, as specified in this Declaration, References
herein to Common Elements also shall include all Limited Common Elements unless the context
would prohibit or it is otherwise expressly provided.
2.32 'Material Amendment' shall have the meaning given to it in Subsection 6.2 below.
2.33 "Ordinance' shall mean and refer to that certain Ordinance No. 04-032 adopted by the City, as now
or hereafter amended, modified or supplemented. Each Owner, by acceptance of a deed or
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otherwise acquiring title to a Unit, shall be deemed 10 understand and agree that the Ordinance
affects and encumbers the Condominium Property.
2.34 'Ordinance Obligations. shaH mean and refer to each and every of the duties and obligations, if
any, arising out of, or pursuant 10, the Ordinance, including, without limitation, any and all
obligations, direct or indirect, required or necessary 10 cause the Condominium Property (including
the Transient Units) and the Association 10 be in full compliance with the Ordinance and all other
governmental pennits and/or approvals obtained in connection with the development of the
Condominium.
2.35 'Primary Institutional First Mortgagee' means the Institutional First Mortgagee which owns, at the
relevant time, Unit mortgages securing a greater aggregate indebtedness than is owed to any other
Institutional First Mortgagee.
2.36 "Recreation Deck" shall mean and refer to the portions of the Residential Limited Common
Elements located on the 511> level of the Condominium, as more particularly depicted on Exhibit '2.
attached hereto.
2.37 'Residential Limited Common Elements' mean and refer to: (a) the faciUties located on, or
operated from the Recreation Deck, (b) all elevators of the Building, other than those identified as
general Common Elements, Transient Common Elements or Commercial Limited Common
Elements on Exhibit '2. attached hereto; (c) any mechanical rooms not serving the Commercial
Units; and (d) the other portions of the Condominium Property identified as such on Exhibit '2"
attached hereto.
2.38 'Residential Limited Common Expenses' shall have the meaning given to it in Subsection 3.3(a)
below, and shall include, without limitation, (a) all expenses incurred by the Association for the
operation, maintenance, repair, replacement or protection of the Residential Limited Common
Elements, (b) all reserves required by the Act (to the extent not properly waiVed) or otherwise
established by the Association with respect to any Residential Limited Common Elements, (c) the
cost of a master antenna television system or duly franchised cable television service obtained
pursuant to a bulk contract, to the extent that same serves the Residential Units and Transient
Units only, and (d) the cost of any bulk contract for broadband, telecommunications, satellite and/or
internet services, if any, 10 the extent that same serves the Residential Units and Transient Units
only.
2.39 'Residential Unil" means and refers to each of the Units other than the Commercial Units and
Transient Units. References herein to 'Units' or 'Parcels' shall include Residential Units unless
the context prohibits or it is otherwise expreSSly provided.
2.40 'Transient Limited Common Elements" mean and refer 10 mean and refer to the areas identified as
such on Exhibit "2" attached hereto, which are intended to be utilized exclusively by the Transient
Unit Owners.
2.41 "Transient limited Common Expenses" shall have the meaning given to it in Subsection 3.3(c)
below.
2.42 "Transient Units' mean and refer 10 the Units designated by the prefix "TU-' on Exhibit '2' attached
hereto. References herein to 'Units' or 'Parcels' shall include the Transient Units unless the
context would prohibit or It is otherwise expressly provided. The designation of Units as 'Transient'
is for ease of reference only and, subject 10 the Ordinance, is not inlended 10 limit or define the
pennitted uses of those Units.
2.43 'Unit" means a part of the Condominium Property which is subject to exclusive ownership, and
except where specifically excluded. or the context otherwise requires, shall be deemed to include
the Residential Units, the Transient Units and the Commercial Units.
2.44 "Unit Owner" or "Owner of a Unit' or "Owner' means a record owner of legal title to a Condominium
Parcel.
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3. DescriDtion of Condominium.
3.1 IdentifICation of Units. The land has constructed thereon one (1) Building consisting of two (2)
towers arising from a common pedestal and having a tolal of four hundred and six (406) Units,
consisting of three hundred eighteen (318) Residential Units, seventy seven (n) Transient Units
and eleven (11) Commercial Units, Each such Unit is identified by a separate numerical and/or
alpha-numerical designation. The designation of each of sllCh Units is set forth on Exhibit "2"
attached hereto. Exhibit '2" consists of a survey of the Land, a graphic description of the
Improvements located thereon, including, but not limited to, the Building in which the Units are
located, and a plot plan thereof. Said Exhibit '2', together with this Declaration, is sufficient in
detail to identify the Common Elements and each Unit and their relative locations and dimensions.
There shall pass with a Unit as appurtenances thereto: (a) an undivided share In the Common
Elements and Common Surplus; (b) the exclusive right to use such portion of the Common
Elements as may be provided in this Declaration, Including, without limitation, the right to transfer
such right to other Units or Unit Owners; (c) an exclusive easement for the use of the airspace
occupied by the Unit as it exists at any particular lime and as the Unit may lawfully be aHered or
reconstructed from time to time, provided that an easement in airspace which is vacated shall be
tenninaled automatically; (d) membership In the Association with the full voting rights appurtenant
thereto; and (e) other appurtenances as may be provided by this Declaration.
3.2 Unit Boundaries, Each Unit shall include that part of the Building containing the Unit that lies within
the following boundaries:
(a) UDDer and Lower Boundaries. The upper and lower boundaries of the Unit shall be the
following boundaries extended 10 their planar intersections wilh lhe perimetrieal
boundaries:
(i) UDDer Boundaries. The horizontal plane of the unfinished lower surface of the
ceiling (which will be deemed to be the ceiling of the upper story if the Unit is a
multi-story Unit, provided that in multi-story Units where the lower boundary
extends beyond the upper boundary, the upper boundary shall include that
portion of the ceiling of the lower floor for which there is no corresponding ceiling
on the upper floor directly above such bottom floor ceiling).
(ii) Lower Boundaries, The horizontal plane of the unfinished upper surface of the
floor of the Unit (which will be deemed to be the fIoot of the first story if the Unit
is a multi-story Unit, provided that in multi-story Units where the upper boundary
extends beyond the lower boundary, the lower boundary shall include that
portion of the ftoor of the upper floor for which there is no corresponding ftoor on
the bottom floor directly below the floor of sllCh top floor).
(iii) Interior Divisions. Except as provided in Subsections 3.2(a}(i) and 3.2(a)(ii)
above, no part of the floor of the top floor, ceiling of the bottom floor, stairwell
adjoining the multi-floors, in all cases of a multi-story Unit, if any, or nonstructural
interior walls shall be considered a boundary of the Unit.
(b) Perlmetrical Boundaries. The perimetrieal boundaries of the Unit shall be the vertical
planes of the unfinished interior surfaces of the walls bounding the Unit extended to their
planar intersections with each other and with the upper and lower boundaries (and to the
extent that the walls are drywall and/or gypsum board, the Unit boundaries shaD be
deemed to be the area immediately behind the drywall and/or gypsum board, so that for
all purposes hereunder the drywall and/or gypsum board shall be deemed part of the Unit
and not part of the Common Elements).
(c) ADertures. Where there are apertures in any boundary, Including, but not limited to,
windows, doors, bay windows and skylights. such boundaries shall be extended to include
the windows, doors and other fixtures located in such apertures, including all frameworks,
window casings and weather stripping thereof, together with exterior surfaces made of
glass or other transparent materials; provided, however, that the exteriors of doors facing
interior Common Element hallways shall not be included in the boundaries of the Unit and
shall therefore be Common Elements. Notwithstanding anything herein contained to the
contrary, any elevators (including all mechanical equipment serving, and housing for the
elevators) solely serving a Unit (to the exclusion of all other Units) shall be deemed part of
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the Unit. Notwithstanding anything to the contraIy, the structural components of the
Building, and the Life Safety Systems, regardless of where located, are expressly
excluded from the Units and are instead deemed Common Elements.
NOTWITHSTANDING ANYTHING HEREIN CONTAINED TO THE CONTRARY, NO
POST TENSION CABLES AND/OR RODS CONTAINED IN THE BUILDING SHALL BE
CONSIDERED A PART OF A UNIT, AS SUCH POST TENSIONED CABLES AND/OR
RODS ARE ESSENTIAL TO THE STRUCTURE AND SUPPORT OF THE BUILDING,
ALL POST TENSIONED CABLES AND/OR RODS SHALL BE DEEMED COMMON
ELEMENTS OF THE CONDOMINIUM AND MAY NOT BE DISTURBED OR ALTERED
WITHOUT THE PRIOR WRmEN CONSENT OF THE BOARD.
(d)
ExceDtlons. In cases not specifically covered above, and/or In any case of conflict or
ambiguity, the survey of the Units set forth as Exhibit '2' hereto shall control in
determining the boundaries of a Unit except that the provisions of Subsection 3.2(c)
above shall control unless specifically depicted and labeled otherwise on such survey.
3.3 Limited Common Elements. Each Unit may have, to the extent applicable and subject to the
provisions of this Declaration, as Limited Common Elements appurtenant thereto:
(a)
Residential Limited Common Elements. The Residential Limited Common Elements shall
be deemed Limited COrMlOn Elements appurtenant to each and every of the Residential
Units and the Transient Units (to the exclusion of the Commercial Units). Except only as
provided below, all of the costs of operating, maintaining, insuring, repairing, replacing
and altering the Residential Limited Common Elements (the "Residential Limited Common
Expenses") shall be borne solely by the Residential Unit Owners and the Transient Unit
Owners. Without limiting the generality of the foregoing, the Residential Limited Common
Expenses shall include, without limitation, all sums described in Subsection 2.38 above,
any and all utility charges associated with the Residential Limited Common Elements (and
if same are not separately metered, the Association shall make a reasonable allocation for
such purposes), costs for landscaping maintenance and replacements in, on and around
the Residential Limited Common Elements, costs for repairs to pavers or other ground or
floor coverings, any and all pool and/or spa related expenses (Including, without limitation,
resurfacing, chemical treatments and monitoring, etc.) and the costs of all personnel
assisting in the operation and/or maintenance of the Residential Limited Common
Elements. The Residential Limited Common Expenses shall not, however, include, any
necessary repairs, maintenance, replacements or alterations to the structural components
of the Building or any roofmg or waterproofing membranes of the Building, including the
roofing or wat6lp/'OOfmg membrane, if any, under any pavers on the Recreation Deck (all
of which shall be deemed a general Common Expense). The Residential Limited
Common Expenses shall be assessed against each of the Residential Units and Transient
Units with each bearing a fractional portion thereof, with the numerator thereof being the
percentage allocable to the applicable Residential Unit or Transient Unit, as applicable, on
Exhibit "3-1' to this Declaration and the denominator being the aggregate of all
percentages allocated to the Residential Units and Transient Units on said Exhibit '3-1",
all as set forth on exhibit '3-2' attached hereto. The Residential Umited Common
Elements shall be maintained by the Association.
Commercial Limited Common Elements. The Commercial Limited Common Elements
shall be deemed Limited Common Elements appurtenant to each and every of the
Commercial Units (to the exclusion of the Residential Units). Except only as provided
below, aU of the costs of operating, maintaining. insuring, repairing, replacing and altering
the Commercial Limited Common Elements (the 'Commercial Limited Common
Expenses1 shall be bome solely by the Commercial Unit Owners. Without limiting the
generality of the foregoing, the Commercial Limited Common Expenses shall include,
without limitation, (i) all sums described in Subsection 2.11 above, (ii) any and all utility
charges associated with the Commercial Limited Common Elements (and If same are not
separately metered, the Association shall make a reasonable allocation for such
purposes), (iii) the costs of all personnel assisting in the operation and/or maintenance of
the Commercial Limited Common Elements, and (iv) any and all costs related to trash
compacting and/or recycling from any portion of the Commercial Limited Common
Elements and/or solely attributable to the Commercial Units, whether lease payments (if
such equipment is leased) or otherwise. The Commercial Limited Common Expenses
shall be assessed against each of the Commercial Units, with each bearing a fractional
(b)
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portion thereof, with the numerator thereof being the percentage allocable to the
applicable Commercial Unit on Exhibit '3-1' to this Declaration and the denominator being
the aggregate of all percentages allocaled to the Commercial Units on said Exhibit '3-1',
all as set forth on Exhib~ '3-3' attached hereto. The Commercial Limited Common
Elements shall be maintained by the Association. Notwithstanding anything herein
contained to the contrary, any manager and/or personnel hired or retained to administer
the Commercial Limited Common Elements or the Commercial Units only shall be subject
to the prior written approval of a majority of the Commercial Unit OWners and shall serve
at the direction of the Commercial Unit OWners (as directed by the affinnative action of a
majority of the Commercial Unit OWners). Similarly, the Association shall, if so instructed
by a majority of the Commercial Unit Owners, hire and retain a manager and/or other
personnel (said manager and/or personnel to be designated by a majority of the
Commercial Unit Owners) and/or enter into contracts and/or agreements for selVices or
otherwise, provided that said manager and/or personnel and/or contracts and/or
agreements shall serve only the Commercial Units and/or the Commercial Limited
Common Elements (and the costs of same shall be deemed Commercial Limited
Common Expenses).
(c) Transient Limited Common Elements. The Transient Limited Common Elements shall be
deemed Umited Common Elements appurtenant to each and every of the Transient Units
(to the exclusion of the Residential Units and the Commercial Units). Except only as
provided below, all of the costs of operating, maintaining, insuring, repairing, replacing
and altering the Transient Limited Common Elements (the 'Transient Limited Common
Expenses.) shall be bome solely by the Transient Unit Owners, Without limiting the
generatity of the foregoing, the Transient Limited Common Expenses shall include,
without limitation, (i) all sums described in Subsection 2.41 above, (ii) 8lIY and all utility
charges associated with the Transient Limited Common Elements (and if same are not
separately metered, the Association shall make a reasonable allocation for such
purposes), (iiQ the costs of all personnel assisting in the operation and/or maintenance of
the Transient Limited Common Elements, (iv) all expenses incurred by the Association in
connection with providing maid selVice and concierge selVice to Transient Unit Owners
and their guests and invitees which are not direclly payable by the Unit Owners availing
themselves of such services; (v)all expenses related, directly or indirecUy, to, or arising
out of, the Ordinance Obligations, if any, except only for those borne directly by the
OWners of the Transient Units (as hereinafter defined); and (vi) any and all costs related
to trash compacting and/or recycling from any portion of the Transient Limited Common
Elements and/or solely attributable to the Transient Units, whether lease payments (if
such equipment is leased) or otherwise. The Transient Limited Common Expenses shall
be assessed against each of the Transient Units, with each bearing a fractional portion
thereof, with the numerator thereof being the percentage allocable to the applicable
Transient Unit on Exhibit '3-1" to this Declaration and the denominator being the
aggregate of an percentages allocated to the Transient Units on said Exhibit '3-1', all as
set forth on Exhibit '3-4. attached hereto. ll'e Transient Limited Common Elements shall
be maintained by the Association. Notwithstanding anything herein contained to the
contrary, any manager and/or personnel hired or retained to administer the Transient
Limited Common Elements and/or to serve only the Transient Units shall be subject to the
prior written approval of a majority of the Transient Unil OwnelS and shall serve at the
direction of the Transient Unit Owners (as directed by the affirmative action of a majority
of the Transient Unit OwnelS). Similarly, the Association shall, if so instructed by a
majority of the Transient Unil Owners, hire and retain a manager and/or other personnel
(said manager and/or personnel to be designated by a majority of the Transient Unit
Owners) and/or enter into contracts and/or agreements for services or otherwise, provided
that said manager and/or pelSonnel and/or contracts and/or agreements shall selVe only
the Transient Units and/or the Transient Limited Common Elements (and the costs of
same shall be deemed Transient Limited Common Expenses).
(d) Patios. Balconies. Roof Decks. Terraces. Roof Terraces and/or Lanais aDDurtenant to
Residential and Transient Units. Any patio, balcony, roof deck, tenace, roof terrace
and/or lanai (and all improvements thereto) as to which direct and exclusive access shall
be afforded to any particular Residential and/or Transient Unit or Units to the exclusion of
others shall be a Limited Common Element of such Residential and/or Transient Unit(s),
as applicable. Except only as set forth below, the Association shall be responsible for the
maintenance of the structural and mechanical elements of any such Limited Common
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Elements, with the costs of same being a part of the Residential Limited Common
Expenses. Except only as set forth below, each Residential and Transient Un~ Owner
shall, however, be responsible for the maintenance of any other portions of such areas,
for the general cleaning, plant care and upkeep of the appearance of the area(s) and for
the repair and replacement of any floor coverings placed or installed on any patio,
balcony, roof deck, terrace, roof terrace andlor lanai. A Residential or Transient Unit
Owner using a patio, balcony, roof deck, terrace, roof terrace and/or lanai or making or
causing to be made eny additions, alterations or improvements thereto agrees, and shall
be deemed to have agreed, for such Owner, and such Owner's heirs, personal
representatives, successors and assigns, as appropriate, to hold the Association, the
Developer and all other Unit Owners harmless from and to indemnify them for any liability
or damage to the Condominium andlor Association Property and expenses arising
therefrom.
Patios. Balconies. Terraces, Lanais andlor Sidewalks aoourtenant to Commercial Units.
Any patios, balconies, terraces, lanais andlor sidewalks adjacent to a Commercial Unit
shall, subject to the provisions hereof, be a Limited Common Element of such Unit(s), so
that the Commercial Unit Owner from time to time may, to the extent permitted by law,
incorporate and use such areas in connection with, or relating to, the operations from the
Commercial Unit. Notwithstanding the foregoing, the designation of such areas as
Limited Common Elements shall not entitle the Owner(s) of the Unit(s) to which they are
appurtenant to preclude passage over such areas as may be required by applicable law
(and an easement for such passage is hereby reserved).
It is further understood and agreed that, anything herein contained to the contrary
notwithstanding, the external surfaces, terraces and balconies of each Commercial Unit
shall be deemed Limited Common Elements thereof and the Owners thereof may place
on such surfaces, or on the balconies appurtenant thereto such signage, mechanical
equipment andlor other items thereon as they may desire. without requiring approval from
the Association, the Board or any Unit Owner, other than applicable govemmental
authorities to the extent that prior approval from them is required, and may further make
any alterations or improvements, in the Commercial Unit Owner's sole discretion, to the
Owner's Commercial Unit and/or Limited Common Elements appurtenant thereto or to the
Common Elements. Any such installations, and any additions, alterations and
improvements thereto shall be made in compliance with all laws, rules, ordinances and
regulations of all govemmental authorities having jurisdiction.
The Association shall be responsible for the maintenance, repair and replacement of any
such Limited Common Elements, with the costs of same being a part of the Common
Expenses. Each Commercial Unit Owner shall, however, be responsible for the
maintenance of any other portions of such areas, for the general cleaning, plant care (to
the extent of any plants added on those areas by the Unit Owner), and upkeep 01 the
appearance of the area(s), and for the repair and replacement of any fumiture or
fumishings and/or any floor coverings placed or installed on any patio, balcony, terrace,
sidewalks andlor lanai. A Commercial Unit Owner using a patio, balcony, terrace, lanai
andlor sidewalk or making or causing to be made any additions, alterations or
improvements thereto agrees. and shall be deemed to have agreed. for such Owner, and
such Owner's heirs, personal representatives, successors and assigns, as appropriate, to
hold the Association, the Developer and all other Unit Owners harmless from and to
indemnify them for any liability or damage to the Condominium and/or Association
Property and expenses arising therefrom.
(ij Parkina SDaces. Until such time as Developer is no longer offering Units for sale in the
ordinary course of its business, Developer hereby reserves and shall have (and after such
period the Association, acting through its Board, shall have) the right to assign, with or
without consideration, the exclusive right to use any parking space located within the
Common Elements of the Condominium, if any, to one or more Units, whereupon the
space so assigned shall be deemed a Limited Common Element of the Unit(s) to which it
is assigned. Such assignment shall not be recorded in the Public Records of the County
but, rather. shall be made by way of instrument placed in the official records of the
Association (as same are defined in the By-Laws). A Unit Owner may assign the Limited
Common Element parking space appurtenant to his or her Unit to another Unit by written
instrument delivered to (and to be held by) the Association. Further, a Limited Common
(e)
Declaration
-9-
Reserved for Clerk 01 Court
Element parking space may be relocated at any time, and from time to time, by the Board
to comply with applicable Federal, State and local laws and regulations regarding or
affecting handicap accessibility. The maintenance of MY parking space so assigned shall
be the responsibUity of the Association. EACH UNIT OWNER ACKNOWLEDGES AND
AGREES THAT A PORTION OF THE PARKING FACILITIES MAY BE LOCATED
BELOW THE FEDERAL FLOOD PLAIN, AND, ACCORDINGLY, IN THE EVENT OF
FLOODING, ANY AUTOMOBILES AND/OR PERSONAL PROPERTY STORED
THEREIN IS SUSCEPTIBLE TO WATER DAMAGE. ADDITIONALLY, INSURANCE
PREMIUMS, BOTH FOR THE ASSOCIATION IN INSURING THE PARKING FACILITIES,
AND FOR OWNERS, MAY BE HIGHER THAN IF THE PARKING STRUCTURE WAS
ABOVE THE FEDERAL FLOOD PLAIN. BY ACQUIRING TITLE TO, OR TAKING
POSSESSION OF, A UNIT, OR ACCEPTING THE ASSIGNMENT OF A PARKING
SPACE, EACH OWNER, FOR SUCH OWNER AND SUCH OWNER'S TENANTS,
GUESTS AND INVITEES, HEREBY EXPRESSLY ASSUMES ANY RESPONSIBILITY
FOR LOSS, DAMAGE OR LIABILITY RESULTING THEREFROM.
(g) StOrBQe Soaces. Until such time as Developer is no longer offering Units for sale in the
ordinary course of its business, Developer hereby reserves and shall have (and after such
period the Association, acting through its Board, shaH have) the right to assign, with or
without consideration, the exclusive right to use any storage space, if any, now or
hereafter located within the Common Elements of the Condominium, to one Qr more
Units, whereupon the space so assigned shall be deemed a Limited Common Element of
the Unlt(s) to which It Is assigned. Such assignment shall not be recorded in the Public
Records of the County but, rather, shall be made by way of instrument placed in the
official records of the Association (as same are defined in the By-Laws). After assignment
to a Unit by the Developer, a Unit Owner may reassign the Limited Common Element
storage space appurtenant to his or her Unit to another Unit by written instrument
delivered to (and to be held by) the Association. The maintenance of any space so
assigned, the screening of such space, as well as the insurance of its contents, shall be
the sole responslbHity of the Owner of the Unit(s) to which It is assigned. EACH UNIT
OWNER ACKNOWlEDGES AND AGREES THAT CERTAIN OFTHE STORAGE AREAS
MAY BE LOCATED BELOW THE FEDERAL FLOOD PLAIN, AND, ACCORDINGLY, IN
THE EVENT OF FLOODING, ANY PERSONAL PROPERTY STORED THEREIN IS
SUSCEPTIBLE TO WATER DAMAGE. ADDITIONALLY, INSURANCE PREMIUMS,
BOTH FOR THE ASSOCIATION IN INSURING THE STORAGE AREAS, AND FOR
OWNERS, MAY BE HIGHER THAN IF THE AREAS WERE ABOVE THE FEDERAL
FLOOD PLAIN. BY ACCEPTING THE ASSIGNMENT OF A STORAGE LOCKER, EACH
OWNER, FOR SUCH OWNER AND SUCH OWNER'S TENANTS, GUESTS AND
INVITEES, HEREBY EXPRESSLY ASSUMES ANY RESPONSIBILITY FOR LOSS,
DAMAGE OR LIABILITY RESULTING THEREFROM.
(h) Miscellaneous Areas. EauiDment. Except to the extent that same are located within the
boundaries of a Unit, any fixtures or equipment (e.g., an air conditioning compressor,
other portions of any air conditioning systems, and/or heater, if any, or hot water heater)
serving a Unit or Units exclusively and any area (e.g., a closet, roof space or ground slab)
uponlwithin which such fixtures or equipment are located shall be Limited Common
Elements of such Unit(s). Without limiting the foregoing, each air conditioning unit (and all
equipment and fixtures constituting an individual air conditioning system) located on the
roof of the Building which serves only one Unit shall be deemed a Limited Common
Element of the Unit it serves. The maintenance (and cost) of eny such fixtures and/or
equipment andlor areas so assigned shall be the sole responsibility of the Owner of the
Unit(s) 10 which the fixtures and/or equipment are appurtenant.
(i) Other. If applicable, any other portion of the Common Elements which, by its nature,
cannot serve all Units but serves one Unit or more than one Unit (i.e., any hallway andlor
elevator landing serving a single Unit or more than one (1) Unit owned by the same
OWner) shall be deemed a Limited Common Element of the Unit(s) served and shall be
maintained by said Owner. In the event of any doubt or dispute as to whether any portion
of the Common Elements constitutes a Limited Common Element or in the event of any
question as to which Units are served thereby, a decision shall be made by a majority
vote of the Board of Directors of the Association and shall be binding and conclusive
when so made. To the extent of any area deemed a Limited Common Element
hereunder, the Owner of the Unit (s) to which the Limited Common Element Is
Declaration
-10 -
Reserved lor Clerk of Court
appurtenant shall have the right to alter same as if the Limited Common Element were
part of the Owner's Unit, rather than as required for alteration of Common Elements.
Notwithstanding the foregoing, the designation of same as a Limited Common Eleme~t
hereunder shall not allow the Owner of the Unit to which the Limited Common Element IS
appurtenant to preclude, or in any way interfere with the passage through such areas as
may be needed from time to time for emergency ingress and egress, and for the
maintenance, repair, replacement, alteration andlor operation of the elevators, Life Safety
Systems, mechanical equipment and/or other Common Elements which are most
convenienUy serviced (in the sole detennination of the Board) by accessing such areas
(and an easement is hereby reserved for such purposes),
3.4 Easements. The following easements are hereby created (in addition to any easements created
under the Act and any easements affecting the Condominium Property and recorded in the Public
Records of the County):
(a)
SUDDort. Each Unit and any structure andlor Improvement now or hereafter constructed
adjacent thereto shall have an easement of support and of necessity and shall be subject
to an easement of support and necessity in favor of all other Units, the Common Elements
(including, without limitation, the Residential Limited Common Elements, Commercial
Limited Common Elements and Transient Limited Common Elements, as applicable)
and/or the Association Property and any other structure or improvement which abuts any
Unit, the Building or any Improvements.
Utility and Other Services: DrainaQe. Easements are reserved under, through and over
the Condominium Property as may be required from time to time for utility, cable
television, communications and monitoring systems, Life Safety Systems, digital andlor
other satellite systems, broadband communications and other services and drainage in
order to serve the Condominium and/or members of the Association. A Unit Owner shall
do nothing within or ou\slde his or her Unit that interferes with or impairs, or may interfere
with or impair. the provision of such utility, cable television, communications, monitoring
systems, Life Safety Systems, digital andlor other satellite systems, broadband
communications or other service or drainage facilities or the use of these easements. The
Association shall have an irrevocable right of access to each Unit to maintain, repair or
replace the pipes, wires, ducts, vents, cables, conduits and other utility, cable television,
communications, monitoring systems, Life Safety Systems, digital andlor other satellite
systems, broadband communications and similar systems, hot water heaters, service and
drainage facilities, and Common Elements (including, without limitation, the Residential
Limited Common Elements, Commercial Limited Common Elements and Transient
Limited Common Elements) contained in the Unit or elsewhere in the Condominium
Property, and to remove any Improvements Interfering with or impairing such facilities or
easements herein reserved; provided such right of access, except in the event of an
emergency, shall not unreasonably interfere with the Unit Owner's permitted use of the
Unit, and except in the event of an emergency, entry shall be made on not less than one
(1) days' notice (which notice shall not, however, be required if the Unit Owner is absent
when the giving of notice is attempted).
Encroachments. If (i) any portion of the Common Elements (including, without limitation,
the Residential Limited Common Elements, Commercial Limited Common Elements,
and/or Transient Limited Common Elements) and/or the Association Property encroaches
upon any Unit; (ii) any Unit (or Limited Common Element appurtenant thereto) encroaches
upon any other Unit or upon any portion of the Common Elements (including, without
limitation, the Residential Limited Common Elements, Commercial Limited Common
Elements, andlor Transient Limited Common Elements) and/or the Association Property;
or (iil) any encroachment shall hereafter occur as a result of (1) construction of the
Improvements; (2) seWing or shifting of the Improvements; (3) any alteration or repair to
the Common Elements (including, without limitation, the Residential Limited Common
Elements, Commercial Limited Common Elements, andlor Transient Limited Common
Elements) and/or the Association Property made by or with the consent of the Association
or Developer, as appropriate; or (4) any repair or restoration of the Improvements (or any
portion thereof) or any Unit alter damage by fire or other casualty or any taking by
condemnation or eminent domain proceedings of all or any portion of any Unit or the
Common Elements (incloolllQ, without limitation, the Residential Limited Common
Elements, Commercial Limited Common Elements, andfor Transient Limited Common
(b)
(c)
Declaration
-11-
Reserved lor Cieri< of Court
(d)
Elements) and/or the Association Property, then, in any such event. a valid easement
shall exist for such encroachment and for the maintenance of same so long as the
Improvements shall stand.
lnaress and Earess. A non-exclusive easement in favor of each Unit Owner and resident,
their guests and Invitees, and for each member of the Association shall exist for
pedestrian traffic over, through and across sidewalks, streets, paths, walks, and other
portions of the Common Elements (including, without Iim~tion, limited Common
Elements, Residential Limited Common Elements, Commercial Limited Common
Elements, and/or Transient Um~d Common Elements) and Association Property as from
time to time may be intended and designated for such purpose and use by the Board; and
for vehicular and pedestrian traffIC over, through and across, and parking on, such
portions of the Common Elements and Association Property as from time to time may be
paved and intended for such purposes. None of the easements specified in this
Subsection 3.4(d) shaD be encumbered by any leasehold or lien other than those on the
Condominium Parcels. Any such Uen encumbering such easements (other than those on
Condominium Parcels) automatically shall be subordinate to the rights of UnR Owners and
the Association with respect to such easements. The easements hereby reserved and
granted in this Subsection 3.4(d) are subject to the use rights granted to the Commercial
Unit Owners in Subsection 3.3(e) above.
Construction: Maintenance. The Developer (including tts affiliates and its or their
designees, contractors, successors and assigns) shall have the right, in its (and their) sole
discretion from time to time, to enter the Condominium Property and take all other action
necessary or convenient for the purpose of undertaking and completing the construction
thereof and/or any portion of the Condominium Property, or any part thereof, or any
Improvements or Units located or to be located thereon, and/or any improvements located
or to be located adjacent thereto and for repair, replacement and maintenance or warranty
purposes or where the Developer, in its sole discretion, determines that it is required or
desires to do so. The Association (and its designees, contractors, subcontractors,
employees) shall have the right to have access to each UnR from time to time during
reasonable hours as may be necessary for pest control purposes and for the
maintenance, repair or replacement of any Common Elements or any portion of a Unit, if
any, to be maintained by the Association, or at any time and by force, if necessary, to
prevent damage to the Common Elements. the Association Property or to a Unit or Units,
including, without limitation, (but without obligation or duty) to close exterior storm shutters
in the event of the issuance of a storm watch or storm waming.
(e)
(Q
Exterior Buildina Maintenance. An easement is hereby reserved on, through and across
each Unit and all Limited Common Elements appurtenant thereto in order to afford access
to the Association (and its contractors) to perform roof repairs andlor replacements,
repair, replace, maintain andlor alter rooftop mechanical equipment, to stage window
washing equipment and to perfonn window washing and/or any other exterior
maintenance and/or painting of the Building.
(g)
Sales and Leasina Activitv. Until such time as Developer (or any of its affiliates) is no
longer offering Units for sale in the ordinary course of Rs business, the Developer, its
designees, successors and assigns, hereby reserves and shall have the right to use any
Units owned by Developer (or its affdiates) and all of the Common Elements or
Association Properly for guest accommodations, model apartments and sales, leasing,
management, resales, administration and construction offices, to provide financial
services, to show model Units and/or apartments and the Common Elements andlor any
other portions of the Condominium Properly or such neighboring property to prospective
purchasers and tenants of Units and/or 'units' or 'improvements" intended to be
constructed on any neighboring properties, and/or to erect on the Condominium Property
and Association Properly signs, displays and other promotional maJlerial to advertise Units
or other properties for sale or lease either in the Condominium or such neighboring
properties (and an easement is hereby reserved for all such purposes and without the
requlremant that any consideration be paid by the Developer to the Association or to any
Unit Owner).
Declaration
-12 -
Reserved for CIeri< of Court
(h)
Public Easemen~. Fire, police, health and sanitation and other public service personnel
and vehicles shall have a permanent and perpetual easement for ingress and egress over
and across the Common Elements in the performance of their respective duties.
Roof. A non-exclusive easement in favor of the Developer (including, its contractors,
agents, designees and assignees) is hereby reserved, to the fullest extent permitted by
law, to allow the Developer to instaD mechanical equipmen~ antennas, dishes, receiving,
transmitting, monitoring and/or other equipment or items which Developer may elect to
install (the .Private RooftoP Equipmenr), whether for itself or any third party (including
persons who are not Owners of any portion of the Condominium) upon the roof of the
Condominium and/or Association Property and/or upon any mechanical installations
located upon the roo!. Without limiting the generality of the foregoing, easements in favor
of the Developer shall exist (i) for pedestrian traffIC over, through and across the
Common Elements and/or Association Property as may be necessary to access the
Condominium rooftop, and, (ii) to connect to the utility systems within the Condominium
andlor Association Property and over and across such other portions of the Condominium
Property andlor Association Property as may be reasonably necessary to permit hook-up
of any Private Rooftop Equipmen~ and (Iii) over, in, under and upon such portions of the
Condominium Property and/or Association Property as may be reasonably necessary or
appropriate for the installation, maintenance, repair, replacement and/or alteration of the
Private Rooftop Equipment. Notwithstanding anything to the contrary contained in this
Subsection 3.4(Q, in exercising any of the easements granted herein, Developer may not
impair service to any Units andlor the Common Elements and must comply with all
applicable laws, rules, ordinances and regulations of all governmental authorities having
jurisdiction.
Commercial Unit HVAC EauiDment. To the extent that any Commercial Unit has HVAC
andlor other mechanical equipment serving only that Unit ('Commercial Mechanical
Equipmenr) located on the Condominium andlor Association Property rooftop andlor on
any other portion of the Common Elements and/or Association Property. then an
easement is hereby reserved for such Commercial Unit Owner (or its tenant. or its or their
contractors, agents, designees and assignees) to take such actions as are necessary or
desired to maintain, operate repair andlor replace such Commercial Mechanical
Equipment. Without limiting the generality of the foregoing, easements in favor of the
Commercial Unit Owners (and their tenants, or its or their contractors, agents, designees
and assignees) shall exist (i) for pedestrian traffic over, through and across the Common
Elements and/or Association Property as may be necessary to access the Condominium
andlor Association Property rooftop andlor on such other portions of the COlMlOn
Elements and/or Association Property, and, (ii) to connect to the utility systems within the
Condominium andlor Association Property and over and across such other portions of the
Condominium Property and/or Association Property as may be reasonably necessary to
permit hook-up of any Commercial Mechanical Equipment, and (iii) over, in, under and
upon such portions of the Condominium Properly andlor Association Property as may be
reasonably necessary or appropriate for the installation, maintenance, repair, replacement
and/or alteration of the Commercial Mechanical Equipment. Notwithstanding anything to
the contrary contained In this Subsection 3.40), in exercising any of the easements
granted herein, the Commercial Unit OWners may not impair service to any Units andlor
the Common Elements and must comply with all applicable laws, rules, ordinances and
regulations of all governmental authorities having jurisdiction.
Utilitv Room Easements. To the extent that any Commercial Unit is connected to, or
derives service (utility or otherwise) from, any meter room, transformer room or other
room (and/or from the equipment contained in such rooms) located within the
Condominium Property and/or Association Property (including, without limitation, all pipes,
lines, ducts, wires and other items which connect from the applicable Commercial Unit to
such rooms, the 'Utility EQuipmenr). then an easement is hereby reserved for such
Commercial Unit Owner (or its tenant, or its or their contractors, agents, designees and
assignees) to take such actions as are necessary or desired to maintain, operate repair
and/or replace such Utility Equipment. Without limiting the generality of ihe foregoing,
easements in favor of the Commercial Unit Owners (and their tenants, or its or their
contractors, agents, designees and assignees) shall exist (i) for pedestrian traffic over,
through and across the Common Elements and/or Association Properly as may be
necessary to access any such Utility Equipment, and, (ii) to connect to the utility systems
(i)
OJ
(k)
Declaralim
-13-
Reserved lor Clerk of Coun
(I)
within the Condominium and/or Association Property and over and across such other
portions of the Condominium Property and/or Association Property as may be reasonably
necessary to permit hook-up of or to any Utility Equipment. and (Hi) over, in, under and
upon such portions of the Condominium Property and/or Association Property as may be
reasonably necessary or appropriate for the installation, maintenance, repair, replacement
andlor alteration of Ihe Utility Equipment Notwithstanding anything to the contrary
contained in this Subsection 3.4(k), in exercising any of the easements granted herein,
the Commercial Unit OWners may not impair service to any Units and/or the Common
Elements and must comply with all applicable laws, rules, ordinances and regulations of
all govemmental authorities having jurisdiction.
Warranty. For as long as Developer remains Uable under any warranty, whether statutory,
express or implied. for acts or omissions of Developer in the development. construction,
sale, resale, leasing, financing and marketing of the Condominium, then Developer and its
contractors, agents and designees shall have the right. In Developer's sole discretion and
from time to time and without requiring prior approval of the Association andlor any Unit
Owner and without requiring any consideration to be paid by the Developer to the Unit
Owners and/or Condominium Association (provided, however, that absent an emergency
situation, Developer shaH provide reasonable advance notice), to enter the Condominium
Property, including the Units, Common Elements and Limited Common Elements, for the
purpose of inspecting, testing and surveying same to determine the need for repairs,
improvements and/or replacements, and effecting same, so that Developer can fulfill any
of its warranty obligations. The failure of the Association or any Unit Owner to grant, or to
interfere with, such access, shall alleviate the Developer from having to fulfill its warranty
obligations and the costs, expenses, liabilities or damages arising out of any unfulfilled
Developer warranty will be the sole obligation and liability of the person or entity who or
which impedes the Developer in any way in Developer's activities described in this
Subsection 3.4(1). The easements reserved In this Section shall expressly survive
the transfer of control of the Association to Unit Owners other than the Developer
and the issuance of any certificates of occupancy for the Condominium Property
(or portions thereof). Nothing herein shall be deemed or construed as the
Developer making or offering any warranty, all of which are disclaimed (except to
the extent same may not be or are expressly set forth herein) as set forth In Section
23 below.
(m)
Additional Easements. The Association, through its Board, on the Association's behalf
and on behalf of all Unit Owners (each of whom hereby appoints the Association as its
attomey-in-fact for this purpose), shall have the right to grant such additional general
("blanker) and specific electric, gas or other utility, cable television, security systems,
communications or service easements (and appropriate bills of sale for equipment,
conduits, pipes, lines and similar instaUations pertaining thereto), or modify or relocate any
such existing easements or drainage facilities, in any portion of the Condominium and/or
Association Property, and to grant access easements or relocate any existing access
easements in any portion of the Condominium and/or Association Property, as the Board
shall deem necessary or desirable for the proper operation and maintenance of the
Improvements, or any portion thereof, or for the general health or welfare of the Unit
Owners andlor members of the Association, or for the purpose of carrying out any
provisions of this Declaration, provided that such easements or the relocation of existing
easements will not prevent or unreasonably Interfere wilh the reasonable use of the Units
for dwelUng purposes.
4. Restraint Uoon Seoaration and Partition of Common Elements. The undivided share in the Common
Elements and Common Surplus which is appurtenant to a Unit. and the exclusive right to use aU appropriate
appurtenant Limited Common Elements, shall not be separated therefrom and shall pass with the title to the
Unit, whether or not separately described. The appurtenant share in the Common Elements and Common
Surplus, and the exclusive right to use all Limited Common Elements appurtenant to a Unit, except as
elsewhere herein provided to the contrary, cannot be conveyed or encumbered except together with lhe
Unit. The respective shares in the Common Elements appurtenant to Units shall remain undivided, and no
action for partition of the Common Elements, the Condominium Property, or any part thereof, shall lie,
except as provided herein with respect to termination of the Condominium.
Declaratioo
-14-
Reserved lor Cieri< of Court
5. Ownershio of Common Elements and Common Surolus and Share of Common Expenses: Votina Rights
5.1
percentaae Ownershio and Shares in Common Elements. The undivided percentage interest in
the Common Elements and Common Surplus, and the percentage share of the Common
Expenses, appurtenant to each Unit, is as set forth on Exhibit "3.1" attached hereto. same having
been determined based upon the total square footage of the applicable Unit in uniform relationship
to the total square footage of each other Unit.
Percentaae Ownershio and Shares in Residential Umited Common Elements. The undivided
percentage share in the Residential Limited Common Expenses, appurtenant to each Residential
Unit and Transient Unit, is as set forth on Exhibit "3-2" attached hereto, same having been
determined based upon the total square footage of the applicable Residential Unit or Transient Unit
in uniform relationship to the total square footage of each Residential Unit and each Transient Unit.
PercentllQ8 Ownership and Shares in Commercial Limited Common Elements. The undivided
percentage share in the Commercial Limited Common Expenses, appurtenant to each Commercial
Unit, is as set forth on Exhibit '3-3" attached hereto, same having been determined based upon
the total square footage of the applicable Commercial Unit in uniform relationship to the total
square footage of each other Commercial Unit.
Percentaae Ownership and Shares in Transient Limited Common Elements. The undivided
percentage share in the Transient Limited Common Expenses, appurtenant to each Transient Unit,
is as set forth on Exhibit "34" attached hereto, same having been determined based upon the
total square footage of the applicable Transient Unit in uniform relationship to the total square
footage of each other Transient Unit
Voting. Each Residential Unit and Transient Unit shall be entitled to one (1) vote to be cast by its
Owner in accordance with the provisions of the By-Laws and Articles of Incorporation of the
Association. Each Commercial Unit shall be entiUed to one (1) vote to be cast by its Owner in
accordance with the provisions of the By-Laws and Articles of Incorporation of the Association.
Each Unit Owner shall be a member of the Association. .
5.2
5.3
5.4
5.5
6. Amendments. Except as elsewhere provided herein, amendments may be effected as follows:
6.1 Bv The Association. Notice of the subject matter of a proposed amendment shall be included in
the notice of any meeting at which a proposed amendment is to be considered. A resolution for the
adoption of a proposed amendment may be proposed e~er by a majority of the Board of Directors
of the Association or by not less than one-third (113) of the Unit Owners. Except as elsewhere
provided, approvals must be by an affirmative vote representing in excess of 66 2/3% of the voting
interests of all Unit Owners. Directors and members not present in person or by proxy at the
meeting considering the amendment may express their approval or disapproval in writing, provided
that such approval or disapproval is delivered to the secretary at or prior to the meeting, however,
such approval or disapproval may not be used as a vote for or against the action taken and may
not be used for the purpose of creating a quorum.
6.2 Material Amendments. Unless otherwise provided specifically to the contrary in this Declaration,
no amendment shall change the conflQuration or size of any Unit in any material fashion, materially
alter or modify the appurtenances to any Unit, or change the percentage by which the Owner of a
Unit shares the Common Expenses and owns the Common Elements and Common Surplus (any
such change or alteration being a "Material Amendmenr), unless the record Owner(s) thereof, and
all record owners of mortgages or other liens thereon, shall join in the execution of the amendment
and the amendment is otherwise approved by an affirmative vote representing four fifths of all of
the voting interests of all Unit Owners (except only a Material Amendment to subdivide a
Commercial Unit. which need only be approved by the affected Commercial Unit Owner and an
affirmative vote representing a majority of all of the voting interests of all Unit Owners. The
acquisition of property by the Association, material alterations or substantial additions to such
property or the Common Elements by the Association and installation, replacement, operation,
repair and maintenance of approved exterior storm shutters, if in accordance with the provisions of
this Declaration, shall not be deemed to constitute a material alteration or modification of the
appurtenances of the Units, and accordingly, shall not constitute a Material Amendment.
6.3 Mortaaaee's Consent. No amendment may be adopted which would eliminate, modify, prejudice,
abridge or otherwise adversely affect any rights, benefrts, privileges or priorities granted or
Declaration
.15-
Reserved lor Clerk 01 Cou~
reserved to any Institutional First Mortgagees or the Primary Institutional Rrst Mortgagee without
the consent of the aforesaid Institutional First Mortgagees in each instance; nor shall an
amendment make any change in the sections hereof entitled 'Insurance', 'Reconstruction or
Repair after Casualty', or 'Condemnation' unless the Primary Institutional First Mortgagee shall
join in the amendment. Except as specifICally provided herein or if required by FNMA or FHLMC,
the consent and/or joinder of any lien or mortgage holder on a Unit shall not be required for the
adoption of an amendment to this Declaration and, whenever the consent or joinder of a lien or
mortgage holder is required, such consent or joinder shall not be unreasonably withheld.
6.4 Water Manaaement District. No amendment may be adopted which would affect the surface water
management and/or drainage systems, including environmental conservation areas, without the
consent of the applicable water management district (the 'Districf). The District shall determine
whether the amendment necessitates a modifICation of the current surface water management
permit. If a modification is necessary, the District will advise the Association.
6.5 By or Affectina the Developer. Notwithstanding anything herein contained to the contrary, during
the time the Developer has the right to elect a majority of the Board of Directors of the Association,
the Declaration, the Articles of Incorporation or the By-Laws of the Association may be amended
by the Developer alone, without requiring the consent of any other party, to effect any change
whatsoever, except for an amendment: (i) to pennit time-share estates (which must be approved,
If at all, by all Unit Owners and mortgagees on Units); or (iij to effect a Material Amendment which
must be approved, if at all, in the manner set forth in Subsection 6.2 above. The unilateral
amendment right set forth herein shall include, without limitation, the right to correct scrivener's
errors. No amendment may be adopted (whether to this Declaration or any of the exhibits hereto)
which would eliminate, modify, prejudice, abridge or otherwise adversely affect any rights, benefits,
privileges or priorities granted or reserved to the Developer, without the prior written consent of the
Developer in each instance.
6.6 Amendments Affectina Commercial Units. Notwithstanding anything herein contained to the
contrary, no amendment may be adopted to this Declaration, the Articles, the By-Laws or any rules
and regulations goveming the Condominium Property (other than an amendment adopted by the
Developer alone pursuant to any reserved rights it may have under this or any other documents)
which would eliminate, modify, prejudice, abridge or otherwise adversely affect any rights, benefits,
privileges or priorities granted or reserved to the Owner(s) from time to time of the Corrvnercial
Units, without the consent of four fifths of all voting interests in the Condominium including all of the
voting interests of the Commercial Unit Owners in each instance. The foregoing requirement to
obtain all of the voting interests of the Commercial Unit Owners to adopt an amendment pursuant
to this subsection, shall not be construed to increase the maximum voting percentage required by
the Act to pass an amendment, but rather shall be construed to be included as part of the voting
percentage set forth herein.
6.7 Execution and RecordinQ. An amendment, other than amendments made by the Developer alone
pursuant to the N:.t or this Declaration, shall be evidenced by a certificate of the Association.
executed either by the President of the Association or a majority of the members of the Board of
Directors which shall include recording data identifying the Declaration and shall be executed with
the same formalities required for the execution of a deed. An amendment of the Declaration is
effective when the applicable amendment is properly recorded In the public records of the County.
No provision of this Declaration shall be revised or amended by reference to its title or number
only. Proposals to amend existing provisions of this Declaration shall contain the full text of the
provision to be amended; new words shall be inserted in the text underlined; and words to be
deleted shall be lined through with hyphens. However, if the proposed change is so extensive that
this procedure would hinder, rather than assist, the understanding of the proposed amendment, it
is not necessary to use underlining and hyphens as indicators of words added or deleted, but,
instead, a notation must be inserted immediately preceding the proposed amendment in
substantially the following language: .Substantial rewording of Declaration. See provision . . . for
present text.' Nonmaterial errors or omissions in the amendment process shall not invalidate an
otherwise properly adopted amendment.
7. Maintenance and Reoairs.
7.1 Units and Limited Common Elements. All maintenance, repairs and replacements of, in or to any
Unit and Limited Common Elements appurtenant thereto (excluding, however, the Residential
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Limited Common Elements, Commercial Limited Common Elements and Transient Limited
Common Elements), whether structural or nonstructural, ordinary or extraordinary, foreseen or
unforeseen, including, without limitation, maintenance, repair and replacement of windows, window
coverings. interior nonstructural walls, the interior side of any entrance door and all other doors
within or affording access to a Unit, and the electrical (including wiring), plumbing (including fixtures
and connections), heating and air-conditioning equlpmen~ fixtures and outlets, appliances, carpets
and other floor coverings, all interior surfaces and the entire interior of the Unit lying within the
boundaries of the Unit or the Umited Common Elements or other property belonging to the Unit
Owner, shall be perfonned by the Owner of such Unit at the Unit Owner's sole cost and expense,
except as otherwise expressly provided to the contrary herein.
7.2 Common Elemeots and Association Prooert~. Except to the extent (a) expressly provided to the
contrary herein, or (b) proceeds of insurance are made available therefor, all maintenance, repairs
and replacements in or to the eornmon Etements (other than those Limited Common Elements or
portions thereof to be maintained by the Unit Owners as provided above), the Residential Limited
Common Elements, eornmercial Limited Common Elements, Transient Limited Common
Elements, and Association Property shall be performed by the Association and the cost and
expense thereof shall be assessed to all Unit Owners as a Common Expense, except: (i) to the
extent arising from or necessitated by the negligence, misuse or neglect of specifIC Unit Owners, in
which case such cost and expense shall be paid solely by such Unit Owners, or (ii) with respect to
the Residential Limited Common Elements, as to which, anything herein to the contrary
notwithstanding, aU costs and expenses shall be paid solely by the Residential Unit Owners and
Transient Unit Owners, or (iii) with respect to the Commercial Limited Common Elements, as to
which, anything herein to the contrary notwithstanding, all costs and expenses shall be paid solely
by the Commercial Unit Owners, or (iv) with respect to the Transient Limited Common Elements.
as to which, anything herein to the contrary notwithstanding, all costs and expenses shall be paid
solely by the Transient Unit Owners.
7.3 Specific Unit Owner Resoonsibility. The obligation to maintain and repair any air conditioning and
heating equipment, plumbing or electrical feeds, fixtures, screens (whether on windows or doors),
screened enclosures and screen doors serving the Unit, or other items of property which service a
particular Unit or Units (to the exclusion of other Units), including, without limitation, any exterior
storm shutters protecting doors or windows for a particular Unit, shall be the responsibility of the
applicable Unit Owners, individually, and not the Association, without regard to whether such items
are included within the boundaries of the Units.
7.4 City Covenants The following provisions are set forth In satisfaction of the requirements of Chapter
163, Part \II ofthe Florida Statutes: .
a. There shall exist 111 "first come-first served' free parking spaces open to the general
public for the commercial component of the Condominium ("Commercial Parking').
b. Signage for parking shall meet the requirements of the city code and shall be located
prominently on the exterior and interior of the parking facility to identify the Commercial
Parking.
c. The Commercial Parking shall be free to the public during the term of the City Agreement,
and after the term the Developer shall have the right to charge such tees as will allow the
Developer to recover all its direct operating expenses for the parking spaces, as well as
reasonable amounts for a reserve for replacement andlor capital repairs and for
depreciation.
d. The pedestrian walkways, performance square, park improvements and plazas shall be
accessible to the general public as provided herein.
e. The Developer shall have the right to control public access or otherwise secure the
garage and Public Amenities between the hours of 12:30 a.m. and 6:30 a.m. daily and
shall have the right to adopt reasonable rules and regulations for the operation and
security ofthe garage.
f. This Section 7.4 shall remain in effect for the life of the Condominium Association
notwithstanding any foreclosure of the project by any lender owning a mortgage
encumbering the Condominium. Additionally, the covenants shall be superior to all after-
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encumbering the Condominium. AdditionaUy, these provisions shall be superior to all
after-imposed liens and encumbrances, including, without limitation, any mortgages on
the Condominium, except any liens and/or encumbrances that are given priority as a
matter of law.
8. Additions. ImDrovements or Alterations bY the Association. Whenever in the judgment of the Board
of Directors, the Common Elements, the Association Property, or any part of either, shall require
capltal additions, alterations or improvements (as distinguished from repairs and replacements)
costing in excess of three percent (3%) of the then applicable budget of the Association in the
aggregate in any calendar year, the Association may proceed with such additions, alterations or
improvements only if the making of such additions, alterations or improvements shall have been
approved by an affirmative vote representing a majority of the voting interests represented at a
meeting at which a quorum is attained. Any such additions, alterations or improvements to such
Common Elements, the Association Property, or any part of either, costing in the aggregate three
percent (3%) of the then applicable budget of the Association or less in a calendar year may be
made by the Association without approval of the Unit Owners. The cost and expense of any such
additions, alterations or improvements to such Common Elements or Association Property shall
constitute a part of the Common Expenses and shall be assessed to the Unit Owners as Common
Expenses. In addition, whenever in the judgment of the Board of Directors, the Residential Limited
Common Elements shall require capital additions, alterations or improvements (as distinguished
from repairs and replacements) costing in excess of three percent (3%) of the then applicable
budget of the Association in the aggregate in any calendar year, the Association may proceed with
such additions, alterations or improvements only if the making of such additions, alterations or
improvements shall have been approved by a majority of the Residential Units' and Transient
Units' voting interests represented at a meeting at which a quorum is attained. Any such additions,
alterations or improvements to such Residential Limited Common Elements costing in the
aggregate three percent (3%) of the then applicable budget of the Association or less in a calendar
year may be made by the Association without approval of the Residential Unit Owners and/or
Transient Unit Owners. The cost and expense of any such additions, alterations or improvements
to the Residential Umited Common Elements shall constitute a part of the Residential Umited
Common Expenses and shaD be assessed to the Residential Unit Owners and Transient Unit
Owners, as Residential Limited Common Expenses. Similarly, whenever in the judgment of the
Board of Directors, the Commercial Limited Common Elements shall require capital additions,
alterations or improvements (as distinguished from repairs and replacements) costing in excess of
three percent (3%) of the then applicable budget of the Association in the aggregate in any
calendar year, the Association may proceed with such additions, alterations or improvements only
if the making of such additions, alterations or Improvements shall have been approved by a
majority of the Commercial Units' voting interests represented at a meeting at which a quorum is
attained. Any such additions, alterations or improvements to such Commercial Umited Common
Elements costing In the aggregate three percent (3%) of the then applicable budget of the
Association or less in a calendar year may be made by the Association without approval of the
Commercial Unit Owners. The cost and expense of any such additions, alterations or
improvements to the Commercial Limited Common Elements shall constitute a part of the
Commercial Limited Common Expenses and shall be assessed to the Commercial Unit Owners, as
Commercial Limited Common Expenses. Lastly, whenever in the judgment of the Board of
Directors, the Transient Limited Common Elements shaD require capital additions, alterations or
improvements (as distinguished from repairs and replacements) costing in excess of three percent
(3%) of the then applicable budget of the Association in the aggregate in any calendar year, the
Association may proceed with such additions, alterations or improvements only if the making of
such additions, alterations or improvements shall have been approved by a majority of the
Transient Units' voting Interests represented at a meeting at which a quorum is attained. Any such
additions, alterations or improvements to such Transient Limited Common Elements costing in the
aggregate three percent (3%) of the then applicable budget of the Association or less in a calendar
year may be made by the Association without approval of the Transient Unit Owners. The cost and
expense of any such additions, alterations or improvements to the Transient Limited Common
Elements shall constitute a part of the Transient Limited Common Expenses and shall be assessed
to the Transient Unit Owners, as Transient limited Common Expenses. For purposes of this
section, "aggregate in any calendar year" shall include the total debt incurred in that year, if such
debt is incurred to perform the above-stated purposes, regardless of whether the repayment of any
part of that debt is required to be made beyond that year. Notwithstanding anything herein
contained to the contrary, if lI'l addition, alteration and/or repair is required by the Ordinance (or in
order to cause the Condominium Property andlor the Association to comply with the requirements
of the Ordinance), the Association shaH be obligated to undertake such addition, alteration andlor
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repair, and may do so without requiring a vote of Unit Owners (and regardless of whether the cost
exceeds the threshold amounts desCribed in this Section), and any such costs shall be deemed
part of the Transient Limited Common Expenses hereunder.
9.
9.1 Consent of the Board of Directors. No Residential Unit Owner or Transient Unit Owner shall make
any addition, alteration or improvement in or to the Common Elements (including, without limitation,
the Residential Umited Common Elements, Commercial Umited Common Elements, and/or
Transient Limited Convnon Elements), the Association Property, any structural addition, alteration
or improvement in or to his or her Residential Unit or Transient Unit, as applicable, the Common
Elements or any Limited Common Element or any change to his or her Residential Unit or
Transient Unit, as applicable, which is visible from any other Unit, the Common Elements and/or
the Association Properly, without, in each instance, the prior written consent of the Board of
Directors of the Association. Without limiting the generality of this Subsection 9.1, no Unit Owner
shall cause or allow Improvements or changes to his or her Unit, or to any Umited Common
Elements, Common Elements or any property of the Condominium Association which does or
could in any way affect, directly or indirectly. the structural, electrical, plumbing, Life Safety
Systems, or mechanical systems, or any landscaping or drainage, of any portion of the
Condominium Property without first obtaining the written consent of lIle Board of the Association.
The Board shall have the obliJation to answer, in writing, any written request by a Residential Unit
OWner or Transient Unit Owner, as applicable, for approval of such an addition: alteration or
improvement within thirty (30) days after such request and all additional information requested is
received, and the failure to do so within the stipulated time shall constitute the Board's consent.
The Board may condition the approval in any manner, including, without limitation, retaining
approval rights of the contractor, or others, to perform the work, imposing conduct standards on all
such workers, establishing permitted work hours and requiring the Residential Unit Owner or
Transient Unit Owner, as applicable, to obtain insurance naming the Developer and the
Association as additional named insureds. The proposed additions, alterations and improvements
by the Residential Unit Owners or Transient Unit Owners, as applicable, shall be made in
compliance with all laws, rules, ordinances and regulations of all govemmental authorities having
jurisdiction, and with any conditions imposed by the Association with respect to design, structural
integrity, aesthetic appeal, construction details, lien protection or otherwise. Once approved by the
Board of Directors, such approval may not be revoked. Notwithstanding anything to the contrary,
no addition, alteration or improvement shall be permitted to the extent same is not permitted
pursuant to, or shall cause the Condominium Property to fail to comply with the requirements of.
the Ordinance.
A Residential Unit Owner or Transient Unit Owner making or causing to be made any such
additions, alterations or improvements agrees, and shall be deemed to have agreed, for such Unit
Owner, and such Owner's heirs, personal representatives, successors and assigns, as appropriate,
to hold the Association, the Developer and all other Unit Owners harmless from and to indemnify
them against any liability or damage to the Condominium and/or Association Property and
expenses arising therefrom, and shall be solely responsible for the maintenance, repair and
insurance thereof from and after that date of installation or construction thereof as may be required
by the Association. The Association's rights of review and approval of plans and other
submissions under this Declaration are intended solely for the benefit of the Association. Neither
the Developer, the Association nor any of its officers, directors, employees, agents, contractors,
consultants or attorneys shall be liable to any Owner or any other person by reason of mistake in
judgment, failure to point out or correct defICiencies in any plans or other submissions, negligence,
or any other misfeasance, maWeasance or non-feasance arising out of or in connection with the
approval or disapproval of any plans or submissions. Anyone submitting plans hereunder, by the
submission of same, and any Owner, by acquiring title to same, agrees not to seek damages from
the Developer and/or the Association arising out of the Association's review of any plans
hereunder. Without limiting the generality of the foregoing, the Association shall not be responsible
for reviewing, nor shall its review of any plans be deemed approval of, any plans from the
standpoint of structural safety, soundness, workmanship, materials, usefulness, conformity with
building or other codes or industry standards, or compliance with governmental requirements.
Further, each Owner (including the successors and assigns) agrees to indemnify and hold the
Developer and the Association harmlesS from and against any and all costs, claims (whether
rightfuMy or wrongfully asserted), damages, expenses or liabilities whatsoever (including, without
limitation, reasonable attorneys' fees and court costs at all trial and appeliate levels), arising out of
any review of plans by the Association hereunder. Without limiting the generality of the foregoing,
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inasmuch as the Condominium has been constructed with post tensioned cables andlor rods,
absolutely no penetration shall be made to any floor, roof or ceiling slabs without the prior written
consent of the Board of Directors and review of the as-bui~ plans and specifICations for the Building
to confirm the approximate location of the post tensioned cables andlor rods. The plans and
speciflC8tions for the Building shall be maintained by the Association as part of its official records.
Each Unit Owner, by accepting a deed or otherwise acquiling title to a Unit shall be deemed to: (i)
have assumed the risks associated with post tension construction, and (ii) agree that the
penetration of any post tensioned cables and/or rods may threaten the structural integrity of the
Building. Each Owner hereby releases Developer, its members, contractors, architects, engineers,
and its and their officers, directors, shareholders, employees and agents from and against any and
all liability that may result from penetration of any of the post tensioned cables andlor rods.
9.2 Life Safety Systems. No Unit Owner shall make any additions, alterations or improvements to the
Life Safety Systems, andlor to any other portion of the Condominium Property which may alter or
impair the Life Safety Systems or access to the Life Safety Systems, without first receiving the prior
written approval of the Board. In that regard, no lock, chain or other device or combination thereof
shall be installed or maintained at any time on or in connection with any door on which panic
hardware or fire exit hardware is required. Stairwen identifICation and emergency signage shall not
be altered or removed by any Unit Owner whatsoever. No barrier including, but not limited to
personalty, shall impede the free movement of ingress and egress to and from all emergency
ingress and egress passageways.
9.3 Improvements. Additions or Alterations bv Develooer or Commercial Unit Owners. Anything to the
contrary notwithstanding, the foregoing restrictions of this Section 9 shall not apply to Developer-
owned Units or Commercial Units. The Developer and each Commercial Unit Owner shall have
the additional right, without the consent or approval of the Association, the Board of Directors or
other Unit Owners, to make alterations, additions or improvements, structural and non-structural,
interior and exterior, Ordinary and extraordinary, in, to and upon any Unit owned by it or them and
Limited Common Elements appurtenant thereto (including, w~ut limitation, the removal of walls,
windows, doors, glass sliding doors, floors, ceilings and other structural portions of the
Improvements and/or the Installation of divider walls and/or signs). Further, Developer reserves
the right, without the consent or approval of the Board of Directors or other Unit Owners, to expand
or add to all or any part of the recreational facilities. Any amendment to this Declaration required
by a change made by the Developer pursuant to this Section 9 shall be adopted in accordance with
Section 6 and Section 10 of this Declaration. Additionally, a Commercial Unit Owner shall have the
right, without the consent or approval of the Association, the Boerd of Directors or other Unit
Owners, to make alterations, additions or Improvements, structural and non-structural, interior and
exterior, ordinary and extraordinary, in, to and upon any Commercial Unit owned by it and Limited
Common Elements appurtenant or adjacent thereto (including, without limitation, the removal of
walls, floors, decorative ceOings and other structural portions of the Improvements, the installation
of slgnage on or in their Units and/or on the exterior walls bounding same andlor the underside of
any facades or balconies In proximity to the Unit (or its Limited Common Elements), to place
fumiture, tables, chairs and other fumishings and equipment on any patios and/or terraces
appurtenant to the Unit and to generally take such other steps as the Commercial Unit Owner
reasonably believes necessary to maximize the use of the Commercial Unit). The Commercial Unit
Owner making or causing to be made any such additions, alterations or improvements agrees, and
shall be deemed to have agreed, for such Owner, and his or her heirs, personal representatives,
successors and assigns, as appropriate, to hold the Association, the Developer and all other Unit
Owners harmless from and to Indemnify them for any liability or damage to the Condominium
and/or Association Properly and expenses arising therefrom and shall be solely responsible for the
maintenance, repair and insurance thereof from and after the date of installation or construction
thereof.
10. Chanaes in Developer-Owned Units. Without limiting the generality of the provisions of Subsection 9.3
above, and anything to the contrary notwithstanding, the Developer shall have the right, without the vote or
consent of the Association or Unit Owners, to (i) make alterations, additions or improvements in, to and
upon Units owned by the Developer, whether structural or non-structural, interior or exterior, ordinary or
extraordinary; Oi) change the layout or number of rooms in any Developer-owned Units; (iii) change the size
of Developer-owned Units by combining separate Developer-owned Units into a single apartment (although
being kept as two separate legal Units), or otherwise; and (iv) reapportion among the Developer-owned
Units affected by such change in size pursuant to the preceding clause, their appurtenant interests in the
Common Elements and share of the Common Surplus and Common Expenses; provided, however, that the
percentage Interest in the Common Elements and share of the Common Surplus and Common Expenses of
Declaration
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any Units (other than the affected Developer-owned Units) shall not be changed by reason thereof unless
the Owners of such Units shall consent thereto and, provided further, that Developer shall comply with all
laws, ordinances and regulations of all govemmentaJ authorities having jurisdiction in so doing. In making
the above alterations, additions and improvements, the Developer may relocate and alter Common
Elements adjacent to or near such Units, Incorporate portions of the Common Elements into adjacent Units
and incorporate Units, or portions thereof into adjacent Common Elements, provided that such relocation
and alteration does not materiaUy adversely affect the marlc:et value or ordinary use of Units owned by Unit
Owners other than the Developer. Any amendments to this Declaration required by changes of the
Developer made pursuant to this Section 10, shaH be effected by the Developer alone pursuant to
Subsection 6.5, without the vote or consent of the Association or Unit Owners (or their mortgagees)
required, except to the extent that any of same constitutes a Material Amendment, in which event, the
amendment must be approved as set forth in Subsection 6.2 above. Without limiting the generality of
Subsection 6.5 hereof, the provisions of this Section may not be added to, amended or deleted without the
prior written consent of the Developer.
11. Oceration of the Condominium bv the Association: Powers and Duties.
11 .1 Powers and Duties. The Association shall be the entity responsible for the operation of the
Condominium and the Association Property. The powers and duties of the Association shall
include those set forth in the By-Laws and Articles of Incorporation of the Association (respectively,
exhibits "4" and "5" annexed hereto), as amended from time to time. The affairs of the
Association shall be governed by a Board of not less than three (3) nor more than nine (9)
directors. Directors must be natural persons who are 18 years of age or older. A person who has
been suspended or removed by the Division under Chapter 718, or who is more than 90 days
delinquent in the payment of regular assessments is not eligible for board membership. A person
who has been convicted of any felony in this state or in a United States District or Territorial Court,
or who has been convicted of MY offense in Mother jurisdiction that would be considered a felony
if committed in this state, is not eligible for Board membership unless such felon's civil rights have
been restored for a period of no less than 5 years as of the date on which such person seeks
election to the Board (provided, however, that the validity of any Board action is not affected if it is
later determined that a member of the Board is ineligible for Board membership due to having been
convicted of a felony). In addition, the Association shall have all the powers and duties set forth in
the Act, as well as all powers and duties granted to or imposed upon it by this Declaration,
including, without limitation:
(a) The irrevocable right to have access to each Unit and any Limited Common Elements
appurtenant thereto from time to time during reasonable hours as may be necessary for
pest control, or other purposes and for the maintenance, repair or replacement of any
Common Elements or any portion of a Unit, if any, to be maintained by the Association, or
at any time and by force, If necessary, to prevent damage 10 the Common Elements, the
Association Property or to a Unit or Units, Including, without limitation, (but without
obligation or duty) to install and/or close exterior storm shutters in the event of the
issuance of a storm watch or storm waming and/or to maintain, repair, replace and/or
operate Ufe Sarety Systems. Unless the Association expressly assumes the obligation to
install and/or close exterior storm shutters in the event of the issuance of a storm watch or
storm warning, the obligation to put shutters on, and then remove shutters, intended to
protect individual Units shall be the sole obligation of the Unit Owner.
(b) The power to make and collect Assessments and other Charges against Unit Owners and
to lease, maintain, repair and replace the Common Elements and Association Property.
(c) The duty fo maintain accounting records according to good accounting practices, which
shall be open to inspection by Unit Owners or their authorized representatives at
reasonable times upon prior written request.
(d) The power to contract for the management and maintenance of ' the Condominium
Property and to authorize a management agent (who may be an affiliate of the Developer)
to assist the Association in carrying out its powers and duties by performing such
functions as reviewing and evaluating the submission of proposals, collection of
Assessments, preparation of records, enfon;ement of rules and maintenance, repair and
replacement of Common Elements with such funds as shall be made available by the
Association for such purposes. The Association and its officers shall, however, retain at
all times the powers and duties granted in the Condominium documents and the
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service to transport Un~ Owners, their guests, tenants and invitees to and from the
Condominium Property and the beach, the airport, local shopping areas and other local
attractions.
(m)
All of the powers which a corporation not for profit in the State of Florida may exercise
pursuant to this Declaration, the Articles of Incorporation, the Bylaws, Chapters 607 and
617, Florida Statutes and the Act, in all cases except as expressly limited or restricted in
the Act
Those certain emergency powers granted pursuant to Section 718.1265, Florida Statues
(n)
In the event of conflict among the powers and duties of the Association or the terms and provisions
of this Declaration and the exhibits attached hereto, this Declaration shall take precedence over the
Articles of Incorporation, By-Laws and applicable rules and regulations; the Articles of
Incorporation shall take precedence over the By-Laws and applicable rules and regulations; and
the By-Laws shall take precedence over applicable rules and regulations, all as amended from time
to time. Notwithstanding anything in this Declaration or its exhibits to the contrary, the Association
shall at all times be the entity having ultimate control over the Condominium, consistent with the
Act.
11.2 Limitation Uoon Uabilitv of Association. Notwithstanding the duty of the Association to maintain
and repair parts of the Condominium Property, the Association shall not be liable to Unit Owners
for injury or damage, other than for the cost of maintenance and repair, caused by any latent
condition of the Condominium Property. Further, the Association shall not be liable for any such
injury or damage caused by defects in design or workmanship or any other reason connected with
any additions, alterations or improvements or other activities done by or on behalf of any Unit
Owners regardless of whether or not same shall have been approved by the Association pursuant
to Section 9 hereof. The Association also shall not be Uable to any Unit Owner or lessee or to any
other person or entity for any property damage, personal injury, death or other liability on the
grounds that the Association did not obtain or maintain insurance (or carTied insurance with any
particular deductible amount) for any particular matter where: (I) such insurance is not required
hereby; or (ii) the Association could not obtain such insurance at reasonable costs or upon
reasonable terms. Notwithstanding the foregoing, nothing contained herein shall relieve the
ASSOciation of its duty of ordinary care, as established by the Act, in canying out the powers and
duties set forth herein, nor deprive Unit Owners of their right to sue the Association if it negligenUy
or willfully causes damage to the Unit Owner's property during the performance of its duties
hereunder. The limitations upon liability of the Association described in this Subsection 11.2 are
subject to the provisions of Section 718.111 (3) F.S.
11.3 Restraint Uoon Assianment of Shares in Assets. The share of a Unit Owner in the funds and
assets of the Association cannot be assigned, hypothecated or transferred in any manner except
as an appurtenance to his Unit.
11.4 AOPfOval or Disaooroval of Matters. Whenever the decision of a Unit Owner is required upon any
matter, whether or not the subject of an Association meeting, that decision shall be expressed by
the same person who would cast the vote for that Unit if at an Association meeting, unless the
joinder of all record Owners of the Unit is specifically required by this Declaration or by law.
11.5 Acts of the Association. Unless the approval or action of Unit Owners, and/or a certain specific
percentage of the Board of Directors of the Association, is specifically required in this Declaration,
the Articles of Incorporation or By-Laws of the Association, applicable rules and regulations or
applicable law, all approvals or actions required or permitted to be given or taken by the
Association shall be given or taken by the Board of Directors, without the consent of Unit Owners,
and the Board may so approve and act through the proper officers of the Association without a
specific resolution. When an approval or action of the Association is permitted to be given or taken
hereunder or thereunder, such action or approval may be conditioned In any manner the
Association deems appropriate or the AssocIation may refuse to take or give such action or
approval without the necessity of establishing the reasonableness of such conditions or refusal.
11.6 OwnershiD. At any time, including after the time that Developer turns over control of the
Association to Unit Owners other than the Developer, the Developer may, at its option, convey, by
quit claim deed, the Commercial Units, or any of them, then owned by the Developer, to the
Association. The Association shall hereby be deemed to have automatically accepted any such
Declaration
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conveyance. From and after the conveyance of a Commercial Unit to the Association, the
Association shall be responsible for any and aU taxes and/or assessments attributable to the
Commercial Unit(s) and for the maintenance, insurance and administration of such Commercial
Unit, and all expenses relating thereto shaH be Common Expenses hereunder.
11.7 Effect on Develooer. If the Developer holds a Unit for sale in the ordinary course of its business,
none of the following actions may be taken after control of the Association has passed to Unit
Owners (other than the Developer). without the prior written approval of the Developer:
(a) Assessment ofthe Developer as a Unit owner for capital improvements; or
(b) Any action by the Association that would be detrimental to the sales of Units by the
Developer or the assignment of Limited Common Elements by the Developer for
consideration; provided, however, that an increase in Assessments for Common
Expenses without discrimination against the Developer shall not be deemed to be
detrimental to the sales of Units.
12. Determination of Common Exoenses and Limited Common Exoenses and Fixina of Assessments Therefor.
The Board of Directors shall from time to time, and at least annually, prepare a budget of estimated
revenues and expenses for the Condominium and the Association, determine the amount of Assessments
payable by the Unit Owners to meet the Common Expenses, Residential Limited Common Expenses,
Commercial Limited Common Expenses and/or Transient Umlted Common Expenses of the Condominium
and allocate and assess such expenses among the Unit OwnBfS in accordance with the provisions of this
Declaration and the By-Laws. The Board of Directors shall advise all Unit Owners prompUy in writing of the
amount of the Assessments payable by each of them as determined by the Board of Directors as aforesaid
and shall fumlsh copies of the budget, on which such Assessments are based, to all Unit Owners and (if
requested in writing) to their respective mortgagees. The Common Expenses shall include the expenses of
and reserves for (if required by, and not waived in accordance with, applicable law) the operation,
maintenance, repair and replacement of the Common Elements (excluding the Residential Limited Common
Elements, Commercial Limited Common Elements and Transient Limited Common Elements) and
Association Properly, costs of carrying out the powers and duties of the Association and any other expenses
designated as Common Expenses by the Act, this Declaration, the Articles or By-Laws of the Association,
applicable rules and regulations or by the Association. The Residential Limited Common Expenses shall
include the expenses of and reserves for (if required by, and not waived In accorosnce with, applicable law)
the operation, maintenance, repair and replacement of the Residential Umited Common Elements. The
Commercial Umited Common Expenses shall Include the expenses of and reserves for (if required by, and
not waived in accordance with, applicable law) the operation. maintenance, repair and replacement of the
Commercial Limited Common Elements. The Transient Umited Common Expenses shall include the
expenses of and reserves for (if required by, and not waived in accordance with, applicable law) the
operation, maintenance, repair and replacement of the Transienl Umited Common Elements. Incidental
income to the Association, if any, may be used to pay regular or extraordinary Association expenses and
liabilities, to fund reserve accounts, or otherwise as the Board shall determine from time to time, and need
not be restricted or accumulated. Any Budget adopted shall be subject to change to cover actual expenses
at any time. Any such change shall be adopted consistent with the provisions of this Declaration and the
By-Laws.
13. Collection of Assessments.
13.1 Liability for Assessments. A Unit owner, regardless of how tiUe is acquired, including by purchase
at a foreclosure sale or by deed in lieu of foreclosure shall be liable for all Assessments coming
due while he or she Is the Unit Owner. Additionally, a Unit Owner shall be joinUy and severally
liable with the previous Owner for all unpaid Assessments that came due up to the time of the
conveyance, without prejudice to any right the Owner may have to recover from the previoUS
Owner the amounts paid by the grantee OWner. The liability for Assessments may not be avoided
by waiver of the use or enjoyment of any. Common Elements or by the abandonment of tne Unit for
which the Assessments are made or otherwise.
13.2 Soecial and Caoital Imorovement Assessments. In addition to Assessments levied by the
Association to meet the Common Expenses of the Condominium and the Association and those
levied by the Association against the Residential Units and Transient Units to meet the Residential
Limited Common Expenses, those levied by the Association against the Commercial Units to meet
the Commercial Limited Common Expenses and those levied by the Association against the
Transient Units to meet the Transient Limited Common Expenses, the Board of Directors may levy
Declaration
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Resel'led for Clert 01 Court
"Special Assessments" and 'Capital Improvement Assessments" upon the following terms and
conditions:
(a)
'Special Assessments" shall mean and refer to an Assessment against each Owner and
his or her Unit, representing a portion of the costs incurred by the Association for specific
purposes of a nonrecurring nature which are not in the nature of capital improvements.
"Capital Improvement Assessments" shall mean and refer to either: (i) an Assessment
against each Owner and his or her Unit, representing a portion of the costs incurred by
the Association for the acquisition, installation, construction or replacement (as
distinguished from repairs and maintenance) of any capital improvements located or to be
located within the Common Elements (excluding the Residential Limited Common
Elements, Commercial Limited Common Elements, andlor Transient Limited Common
Elements) or Association Property; (ii) an Assessment against each Residential Unit
Owner and each Transient Unit Owner and his or her Unit, representing a portion of the
costs incurred by the Association for the acquisition, installation, construction or
replacement (as distinguished from repairs and maintenance) of any capital
improvements located or to be located within the Residential Limited Common Elements;
(iii) an Assessment against each Commercial Unit Owner and his or her Unit, representing
a portion of the costs incurred by the Association for the acquisition, installation,
construction or replacement (as distinguished from repairs and maintenance) of any
capital improvements located or to be located within the Commercial Limited Common
Elements; or (iv) an Assessment against each Transient Unit Owner and his or her Unit,
representing a portion of the costs incurred by the Association for the acquisition,
installation, construction or replacement (as distinguished from repairs and maintenance)
of any capital improvements located or to be located within the Transient Limited
Common Elements.
(b)
Special Assessments and Capital Improvement Assessments may be levied by the Board
and shall be payable in lump sums or installments, in the discretion of the Board; provided
that, if such Special Assessments or Capital Improvement Assessments; in the aggregate
in any year, exceed three percent (3%) of the then estimated operating budget of the
Association, the Board must obtain approval of a majority of the voting interests
represented at a meeting at which a quorum is attained.
13.3 Default in Pavment of Assessments for Common ExIlenses. Assessments and installments
thereof not paid within ten (10) days from the date when they are due shall bear interest at fifteen
percent (15%) per annum from the date due until paid and shall be subject to an administrative late
fee in an amount not to exceed the greater of $25.00 or five percent (5%) of each delinquent
installment. The Association has a lien on each Condominium Parcel to secure the payment of
Assessments. Except as set forth below, the lien is effective from, and shall relate back to, the date
of the recording of this Declaration. However, as to a first mortgage of record, the lien is effective
from and after the date of the recording of a claim of lien in the Public Records of the County,
stating the description of the Condominium Parcel, the name of the record Owner and the name
and address of the Association. The lien shall be evidenced by the recording of a claim of lien in
the Public Records of the County . To be valid, the claim of lien must state the description of the
Condominium Parcel, the name of the record Owner, the name and address of the Association, the
amount due and the due dates, and the claim of lien must be executed and acknowledged by an
officer or authorized officefOf the Association. The claim of lien shall not be released until all sums
secured by it (or such other amount as to which the Association shall agree by way of settJement)
have been fully paid or until it is barred by law. No such lien shall be effective longer than one (1)
year after the claim of lien has been recorded unless, within that one (1) year period, an action to
enforce the lien is commenced. The one (1) year period shall automatically be extended for any
length of time during which the Association is prevented from filing a foreclosure action by an
automatic stay resulting from a bankruptcy petition filed by the Owner or any other person claiming
an interest in the Unit. The claim of lien shall secure (whether or not stated therein) all unpaid
Assessments, which are due and which may accrue subsequent to the recording of the claim of
lien and prior to the entry of a certificale of tiUe, as weD as interest and all reasonable costs and
attomeys' fees incurred by the Association incident to the collection process. Upon payment in full,
the person making the payment is entitled to a satisfaction of the lien in recordable form. The
Association may bring an action in its name to foreclose a lien for unpaid Assessments in the
manner a mortgage of real property is foreclosed and may also bring an action at law to recover a
money judgment for the unpaid Assessments without waiving any claim of lien. The Association is
(c)
Declaration
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Reserved lor Clerk of Court
entitled to recover its reasonable attorneys' fees incurred either in a lien foreclosure action or an
action to recover a money judgment for unpaid Assessments.
As an additional right and remedy of the Association, upon default in the payment of Assessments
as aforesaid and after thirty (30) days' prior written notice to the applicable Unit Owner and the
recording of a claim of lien, the Association may accelerate and declare immediately due and
payable all instaRments of Assessments for the remainder of the fIScal year. In the event that the
amount of such installments changes during the remainder of the fiscal year, the Unit Owner or the
Association, as appropriate, shall be obligated to pay or reimburse to the other the amount of
increase or decrease within ten (10) days of same taking effect.
13.4 Notice of Intention to Foreclose Lien. No foreclosure judgment may be entered until at least thirty
(30) days after the Association gives written notice to the Unit Owner of its intention to foreclose its
lien to collect the unpaid Assessments. If this notice is not given at least thirty (30) days before the
foreclosure action is filed, and if the unpaid Assessments, including those coming due after the
claim of lien is recorded, are paid before the enlly of a final judgment of foreclosure, the
Association shall not recover attomey's fees or costs. The notice must be given by delivery of a
copy of it to the Unit Owner or by certified or registered mail, return receipt requested, addressed to
the Unit Owner at the last known address, and upon such mailing, the notice shall.be deemed to
have been given. If after diligent search and inquiry the Association cannot find the Unit Owner or
a mailing address at which the Unit Owner win receive the notice, the court may proceed with the
foreclosure action and may award attorney's fees and costs as permitted by law. The notice
requirements of this Subsection are satisfied If the Un~ Owner records a Notice of Contest of Lien
as provided in the Act.
13.5 Appointment of Receiver to Collect Rental. If the Unit Owner remains in possession of the Unit
after a foreclosure judgment has been entered, the court in its discretion may require the Unit
Owner to pay a reasonable rental for the Unit. If the Unit Is rented or leased during the pendency
of the foreclosure action, the Association is entitled to the appointment of a receiver to collect the
rent. The expenses of such receiver shall be paid by the party which does not prevail in the
foreclosure action.
13.6 First Mortaaoee. The liability of the holder of a first mortgage on a Unit (each, a "First Mortgagee'),
or its successors or assigns, who acquires title to a Unit by foreclosure or by deed in lieu of
foreclosure for the unpaid Assessments (or instaHments thereof) that became due prior to the First
Mortgagee's acquisition of title is limited to the lesser of:
(a) The Unit's unpaid Common Expenses and regular periodiC Assessments which accrued
or came due during the six (6) months immediately preceding the acquisition of tille and
for which payment in full has not been received by the Association; or
(b) One percent (1%) of the original mortgage debt
As to a Unit acquired by foreclosure, the limitations set forth in clauses (a) and (b) above shall not
apply unless the First Mortgagee joined the Association as a defendant in the foreclosure action.
Joinder of the Association, however, is not required if, on the date the complaint is filed, the
Association was dissolved or did not maintain an offICe or agent for service of process at a location
which was known to or reasonably discoverable by the mortgagee.
A First Mortgagee acquiring title to a Unit as a result of foreclosure or deed in lieu thereof may not
during the period of its ownership of such Unit, whether or not such Unit is unoccupied, be excused
from the payment of some or all of the Common Expenses coming due during the period of such
ownership.
13.7 Estoppel Statement. Within fifteen (15) days after receiving a written request therefor from a
purchaser, Unit Owner or mortgagee of a Unit, the Association shall provide a certificate, signed by
an officer or agent of the Association, stating all Assessments and other moneys owed to the
Association by the Unit Owner with respect to his or her Unit. Any person other than the Unit
Owner who relies upon such certifICate shall be protected thereby. The Association or its
authorized agent may charge a reasonable fee for the preparation of such certificate.
13.8 Installments. Regular Assessments shall be collected monthly or quarterly, in advance, at the
option of the Association. Initially, assessments will be collected monthly.
DedaratJon
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Reserved lor Clerk of Court
14.
13.9 Application of Payments. Any payments received by the Association from a delinquent Unit Owner
shall be applied first to any interest accrued on the delinquent installment(s) as aforesaid, then to
any administrative late fees, then to any costs and reasonable attorneys' fees incurred in collection
and then to the delinquent and any accelerated Assessments. The foregoing shall be applicable
notwithstanding any restrictive endorsement, designation or instruction placed on or accompanying
a payment
Insurance. Insurance covering the Condominium Property and the Association Property shall be governed
by the following provisions:
14.1 Purchase. Custody and Payment.
(a)
Purchase. Except as otherwise provided herein or required by the Act, all insurance
policies described herein covering portions of the Condominium and Association Property
shall be purchased by the Association and shall be issued either by an insurance
company authorized to do business in Florida, or by a surplus lines carrier offering
policies for Florida properties reasonably acceptable to the Board.
ADoroval. Each insurance policy, the agency and company issuing the policy and the
Insurance Trustee (if appointed) hereinafter described shall be subject to the approval of
the Primary Institutional First Mortgagee in the first instance, if requested thereby.
Named Insured. The named insured shall be the Association, individually, and as agent
for Owners of Units covered by the policy, without naming them, and as agent for their
mortgagees, without naming them. The Unit Owners and their mortgagees shall be
deemed additional named insureds.
(b)
(c)
(d)
Custody of Poficies and Payment of Proceeds. All policies shall provide that payments for
losses made by the insurer shall be paid to the Association or to the Insurance Trustee (if
appointed), and all policies and endorsements thereto shall be deposited with the
Association or to the Insurance Trustee (if appointed).
Copies to Mortaaaees. One copy of each insurance policy, or a certificate evidencing
such policy, and all endOlS8ments thereto, shall be furnished by the Association upon
request to each Institutional First Mortgagee who holds a mortgage upon a Untt covered
by the policy. Copies or certificates shall be furnished not less than ten (10) days prior to
the begiming of the term ofthe policy, or not less than ten (10) days prior to the expiration
of each preceding policy that is being renewed or replaced, as appropriate.
Personal Prooertv and Liabilitv. The Unit Owners shall be responsible for obtaining and
maintaining insurance coverage in accordance with the Act, including (without limitation)
coverage for property lying within the boundaries of their Unit, their personal property,
and/or for their personal liability, moving lIld relocation expenses, lost rent expenses and
living expenses and for any other risks not otherwise insured in accordance herewith (but
only to the extent required under the Act).
14.2 Coveraae. The Association shall maintain insurance covering ttle following:
(e)
(n
(a) Casualtv. The Insured Property (as hereinafter defined) shall be insured in an amount not
less than 100% of the full insurable replacement cost thereof, excluding foundation and
excavation costs (and subject to such reasonable deductibles as discussed below). The
policy shall provide primary coverage for the follOwing (the 'Insured Property'): (i) all
portions of the Condominium Property as originally installed or replacement of like kind
and quality, in accordance with the original plans and specifications or, to the extent
permitted by the Act, if the original plans and specifications are not available, as they
existed at the time that the Unit was initially conveyed, and (ii) aU alterations or additions
made to the Condominium Property or Association Property pursuant to Section
718.113(2). Notwithstanding the foregoing, the Insured Property shall not include, and
shall speciflCSlly exclude, all personal property within the Unit or Umited Cornmon
Elements, all floor, wall and ceiling coverings, electrical fIXtures, appliances, water
heaters, water filters, built-in cabinets and countertops, and window treatments, including
curtains, drapes, blinds, hardware and similar window treatment components, or
replacements of any of the foregoing. Such coverage shall afford protection against loss
Declaration
.27 -
Reserved for CleIlt of Court
(b)
or damage by fire and other hazards covered by a standard extended coverage
endorsement, and such other risks as from time to time are customarily covered with
respect to buildings and improvements similar to the Insured Properly in construction,
location and use, including, but not limited to, vandalism and malicious mischief.
Liability. Comprehensive general public liability and automobile liability insurance
covering loss or damage resulting from accidents or occurrences on or about or in
connection with the Insured Property or adjoining driveways and walkways, subject to this
Declaration, or any work, matters or things related to the Insured Property, with such
coverage as shall be required by the Board of Directors of the Association, but with
combined single limit liability of not less than $1,000.000 for each accident or occurrence,
$100,000 per person and $50,000 property damage, and with a cross liability
endorsement to cover liabilities of the Unit Owners as a group to any Unit Owner, and vice
versa. The Association may also obtain and maintain liability insurance for its directors
and officers and for the benefit of the Association's employees, in such amounts and
under such terms and conditions as the Association deems appropriate in its sole and
absolute discretion.
(c)
(d)
Worker's Compensation and other mandatory insurance, when applicable.
Flood Insurance covering the Common Elements, Association Property and Units if
required by the Primary Institutional First Mortgagee or FNMAlFHLMC, or if the
Association so elects.
(e)
Errors and Omissions. The Association shall obtain and maintain adequate liability, errors
and omission coverage on behalf of each of the officers and directors of the Association.
Fidelity Insurance or Fidelity Bonds. The Association shall obtain and maintain adeQuate
fidelity bonding of all persons who control or disburse funds of the Association, which shail
include, without limitation, those individuals authorized to sign Association checks and the
president, secretary and treasurer of the Association. The fidelity bond shall be in such
amount as shall be determined by a majority of the Board, but must be sufficient to cover
the maximum funds that will be in the custody of the Association or its menagement agent
at anyone time. The premiums on such bonds and/or insurance shan be paid by the
Association as a Common Expense.
Association Property. Appropriate additional policy provisions, policies or endorsements
extending the applicable portions of the cO'o'erage described above to all Association
Property, where such coverage is available.
(n
(g)
(h)
Such Other Insurance as the Board of Directors of the Association shall determine from
time to time to be desirable.
When appropriate and obtainable, each of the foregoing policies shall waive the insurer's right to:
(i) subrogation against the Association and against the Unit Owners individually and as a group, (ii)
pay only a fraction of any loss in the event of coinsurance or if other insurance carriers have issued
coverage upon the same risk, and (Iii) avoid fiabBity for a loss that is caused by an act of the Board
of Directors of the Association, a member of the Board of Directors of the Association, one or more
Unit Owners or as a result of contractual undertaklngs. Additionally, each policy shall provide that
any insurance trust agreement will be recognized, that the insurance provided shall not be
prejudiced by any act or omissions of individual Unit Owners that are not under the control of the
Association. and that the policy shall be primary, even if a Unit Owner has other insurance that
covers the same loss.
Every casualty insurance policy obtained by the Association, if required by FNMAlFHLMC, and if
generally available, shali have the following endorsements: (i) agreed amount and Inflation guard
and (ii) steam boiler coverage (providing at least $50,000 coverage for each accident at each
location), if applicable.
14.3 Additional Provisions. All policies of insurance shall provide that such policies may not be
canceled or substantially modified without at least thirty (30) days' prior written notice to all of the
named insureds, including all mortgagees of Units. Prior to obtaining any policy of casualty
insurance or any renewal thereof, but in no event later than every thirty-six (36) months, the Board
Declaration
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Reserved for Clerk 01 Court
of Directors shall obtain an independent insurance appraisal from a fire insurance company, or
other competent appraiser, of the full insurable replacement value of the Insured Property
(exclusive of foundations), without deduction for depreciation, for the purpose of determining the
amount of insurance to be effected pursuant to this Section.
14.4 Premiums. Premiums upon insurance policies purchased by the Association shall be paid by the
Association as a Common Expense, except that the costs of fidelity bonding for any management
company employee may be paid by such company pursuant to its contract with the Association.
Premiums may be financed in such manner as the Board of Directors deems appropriate. Such
polIcies may contain reasonable deductible provisions which shall be consistent with industry
standards and prevaifing practice for similar condominiums and based upon the level of available
funds and predetermined assessment authority, as determined by the Board of Directors at a
meeting open to all Unit Ownefs in the manner set forth in the Act. Each Owner, by acceptance of
a deed or other conveyance of a Unit, hereby ratifies and confirms atly decisions made by the
Association in this regard and recognizes and agrees that funds to cover the deductible must be
provided from the general operating funds of the Association before the Association wiU be entitled
to insurance proceeds. The Association may, but shall not be obligated to, establish a IeServe to
cover any applicable deductible. .
14.5 Insurance Trustee or Association: Share of Proceeds. If an Insurance Trustee has not been
appointed by the Association, then the Association is hereby irrevocably appointed as an agent
and allomey-in-fact for each and every Unit Owner, for each Institutional First Mortgagee and/or
each owner of any other interest in the Condominium Property to adjust and sellle any and all
claims arising under any insurance policy purchased by the Association and to execute and deliver
releases upon the payment of claims, if any. The decision to engage or appoint an Insurance
Trustee, or not to do so, lies solely with the Association. All insurance policies obtained by or on
behalf of the Association shall be for the benefit of the Association, the Unit Owners and their
mortgagees, as their respective interests may appear, and shall provide that all proceeds covering
property losses shall be paid to the Association or to the Insurance Trustee, if one is appointed by
the Association, which may be designated by the Board of Directors as provided in Subsection
14.10 below and in this Subsection 14.5, and which, if so appointed, shall be a bank or trust
company in Florida with trust powers, with its principal place of business in the State of Florida.
The Insurance Trustee shall not be liable for payment of premiums, nor for the renewal or the
suffICiency of policies, nor for the failure to collect any insurance proceeds. The duty of the
Insurance Trustee or the Association, as applicable, shall be to receive such proceeds as are paid
and to hold the same in trust for the purposes elsewhere stated herein, and for the benefit of the
Unit Owners and their respective mortgagees in the following shares, but shaleS need not be set
forth on the records of the Insurance Trustee:
(a) Insured ProDertv. Proceeds on account of damage to the Insured Property shall be held
in undivided shaleS for each Unit OWner, such shares being the same as the undivided
shaleS in the Common Elements appurtenant to each Unit, provided thill if the Insured
Property so damaged includes property lying within the boundaries of specific Units, that
portion of the proceeds allocable to such property shall be held as if that portion of the
Insured Property were Optional Property as described in paragraph 14.5(b) below and
further provided thet: (i) if the Insured Property so damaged includes property lying within
the Residential Umited Common Elements, that portion of the proceeds allocable to the
Residential Limited Common Elements shall be held in undivided shaleS for each
Residential Unit Owner and Transient Unit Owner, such shares being the same as the
undivided shares in the Residential Umited Common Elements (as set forth on Exhibit "3-
2' attached hereto); (Ii) if the Insured Property so damaged Includes property lying within
the Commercial Umited Convnon Elements, that portion of the proceeds allocable to the
Commercial Umited Common Elements shall be held in undivided shares for each
Commercial Unit Owner, such shares being the same as the undivided shares in the
Commercial Umited Common Elements (as set forth on Exhibit "3-3" attached hereto) (ii)
if the Insured Property so damaged includes property lying within the Transient Limited
Common Elements, that portion of the proceeds aUocable to the Transient Limited
Common Elements shall be held in undivided shares for each Transient Unit Owner, such
shares being the same as the undivided shares in the Transient limited Common
Elements (as set forth on Exhibit '3-4' attached hereto).
(b) ODtional Prooertv. Proceeds on account of damage solely to Units and/or certain portions
or all of the contents thereof not Included in the Insured Property (all as determined by the
Oedaralion
.29-
Reserved tor Clerk of Court
Association in its sole discretion) (collectively the 'Optional Property"), if any is collected
by reason of optional insurance which the Association elects to carry thereon (as
contemplated herein), shall be held for the benefit of Owners of Units or other portions of
the Optional Property damaged in proportion to the cost of repairing the damage suffered
by each such affected Owner, which cost and allocation shall be determined in the sole
discretion of the Association.
(c) Mortaaaees. No mortgagee shall have any right to determine or participate in the
determination as to whether or not any damaged property shan be reconstructed or
repaired. and no mortgagee shall have any right to apply or have applied to the reduction
of a mortgage debt any insurance proceeds, except for actual distributions thereof made
to the Unit Owner and mortgagee pursuant to the provisions of this Declaration.
14.6 Distribution of Proceeds. Proceeds of insurance policies received by the Association andlor
Insurance Trustee, as applicable, shall be distributed to or for the benefit of the beneficial owners
thereof in the following manner:
(a) Exoenses of the Trustee. All expenses of the Insurance Trustee (if any) shall be first paid
or provision shall be made therefor.
(b) Reconstruction or Reoair. If the damaged property for which the proceeds are paid is to
be repaired or reconstructed, the remaining proceeds shall be paid to defray the cost
thereof as elsewhere provided herein. My proceeds remaining after defraying such costs
shall be distributed to the beneficial owners thereof, remittances to Unit Owners and their
mortgagees being payable jointly to them.
(c) Failure to Reconstruct or Reoair. If it is determined In the manner elsewhere provided
that the damaged property for which the proceeds are paid shall not be reconstructed or
repaired, the remaining proceeds shall be aDocated among the beneficial owners as
provided In Subsection 14.5 above, and distributed first to all Institutional Fll'St Mortgagees
in an amount sufficient to payoff their mortgages, and the balance, if any, to the beneficial
owners.
(d) Certificate. In making distributions to Unit Owners and their mortgagees, the Insurance
Trustee (if appointed) may rely upon a certifICate of the Association made by ils President
and Secretary as to the names of the Unil Owners and their mortgagees and their
respective shares of the distribution.
14.7 Association as Aaent. The Association is hereby irrevocably appointed as agent and attomey-in-
fact for each Unit Owner and for each owner of a mortgage or other lien upon a Unit and for each
owner of any other interest In the Condominium Property to adjust all claims arising under
insurance policies purchased by the Association and to execute and deliver releases upon the
payment of claims.
t4.8 Unit Owners' Personal Coveraae. Unless the Associatlon elects otherwise, the insurance
purchased by the Association shall not cover claims against an Owner due to accidents occurring
within his Unit, nor casualty or theft loss to the contents of an Owner's Unit. It shaft be the
obligation of the individual Unit Owner, to the extent required under the Act. to purchase and pay
for insurance as to all such and other risks not covered by insurance carried by the Association.
The Association shall require each Unit OWner to provided evidence of a currently effective policy
of hazard and liability insurance upon reques~ but not more than once per year. Upon failure of an
Owner to provide a certificate of insurance issued by an insurer approved to write such insurance
in Florida within thirty (30) days after the date on which a written request is delivered, the
Association may purchase a policy of insurance on behalf of a Unit Owner. The cost of such
policy, together with reconstruction costs undertaken by the Association but which are the
responsibility of the Unit Owner, may be collected in the manner provided for the collection of
Assessments.
14.9 Benefit of Mortaaaees. Certain provisions In this Section 14 are for the benefit of mortgagees of
Units and may be enforced by such mortgagees.
14.10 AOPolntment of Insurance Trustee. The Board of Directors of the Association shall have the option
in its discretion of appointing an Insurance Trustee hereunder. If the Association fails or elects not
Declaratioo
.30-
Reserved lor Clerk of Court
to appoint such Trustee, the Association, pursuant to Subsection 14.5 above, will perform directly
all obligations imposed upon such Trustee by this Declaration. Fees and expenses of any
Insurance Trustee are Common Expenses.
14.11 Presumolion as to Damaaed Prooertv. In the event of a dispute or lack of certainty as to whether
damaged property constitutes a Unit(s) or Common Elements, such property shall be presumed to
be Common Elements.
15. Reconstruction or Reoair After Fire or Other Casualty.
15.1 Determination to Reconstruct or Reoair. Subject to the immediately following paragraphs, in the
event of damage 10 or destruction of the Insured Property (and the Optional Property, if insurance
has been obtained by the Association with respect thereto) as a result of fire or other casualty, the
Board of Directors shall arrange for the prompt repair and restoration of the Insured Property (and
the Optional Property, n insurance has been obtained by the Association with respect thereto) and
the Association and/or Insurance Trustee (if appointed), as applicable, shall disburse the proceeds
of all insurance policies to the contractors engaged in such repair and restoration in appropriate
progress payments.
If 75% or more of the Insured Property (and the Optional Property, if insurance has been obtained
by the Association with respect thereto) is substantially damaged or destroyed and if Unit Owners
owning 80% of the applicable interests in the Common Elements duly and promptly resolve not to
proceed with the repair or restoration thereof and a Majority of Institutional First Mortgagees
approve such resolution, the Condominium Property will not be repaired and shall be subject to an
action for partition instituted by the Association, any Unit Owner, mortgagee or lienor, as n the
Condominium Property were owned in common, in which event the net proceeds of insurance
resulting from such damage or destruction shall be divided among all the Unit Owners in proportion
to their respective interests in the Common Elements (with respect to proceeds held for damage to
the Insured Property other than that portion of the Insured Property lying within the boundaries of
the Unit), and among affected Unit Owners in proportion to the damage suffered by each such
affected Unit Owner, as determined in the sole discretion of the Association (with respect to
proceeds held for damage to the Optional Property, if any, andlor that portion of the Insured
Property lying within the boundaries of the Unit); provided, however, that no payment shall be
made to a Unit Owner until there has first been paid off out of his share of such fund aU mortgages
and liens on his or her Unit in the ordler of priority of such mortgages and liens.
Whenever in this Section the words 'promptly repair" are used, it shall mean that repairs are to
begin not more than sixty (60) days from the date the Association holds, or the Insurance Trustee
(if appointed) notifies the Board of Directors and Unit Owners that it holds proceeds of insurance
on account of such damage or destruction sufficient to pay the estimated cost of such work., or not
more than ninety (90) days after the Association determines tha~ or the Insurance Trustee (if
appointed) notifies the Board of Directors and the Unit Owners that such proceeds of insurance are
insufficient to pay the estimated costs of such work.. The Insurance Trustee (if appointed) may rely
upon a certifICate of the Association made by its President and Secretary to determine whether or
not the damaged property is to be reconstructed or repaired.
15.2 Plans and Soeciflcations. Any reconstruction or repair must be made substantially in accordance
with the plans and specifications for the original Improvements and then applicable building and
other codes; or if not, then in accordance with the plans and specifications approved by the Board
of Directors of the Association and then applicable building and other codes, and, if the damaged
property which is to be altered is the Building or the Optional Property, by the Owners of not less
than 80% of the applicable interests in the Common Elements, as well as the Owners of all Units
and other portions of the Optional Property (and their respective mortgagees) the plans for which
are to be altered.
15.3 Soecial Resoonsibilitv. If the damage is only to those parts of the Optional Property for which the
responsibility of maintenance and repair is that of the respective Un~ Owners, then the Unit
Owners shall be responsible for all necessary reconstruction and repair, which shall be effected
promptly and in accordance with guideUnes established by the Board of Directors (unless
insurance proceeds are held by the Association with respect thereto by reason of the purchase of
optional insurance thereon, in which case the Association shall have the responsibility to
reconstruct and repair the damaged Optional Property, provided the respective Unit Owners shall
be individually responsible for any amount by which the cost of such repair or reconstruction
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exceeds the insurance proceeds held for such repair or reconstruction on a Unit by Unit basis, as
determined in the sole discretion of the Association). In all other instances, the responsibility for all
necessary reconstruction and repair shall be that of the Association.
(a) Disbursement. The proceeds of insurance collected on account of a casualty, and the
sums collected from Unit Owners on account of such casually, shall constitute a
construction fund which shall be disbursed in payment of the costs of reconstruction and
repair in the following manner and order.
(i) Association - Lesser Damaae. If the amount of the estimated costs of
reconstruction and repair which are the responsibility of the Association is less
than $100,000, then the construction fund shall be disbursed in payment of such
costs upon the order of the Board of Directors of the Association; provided.
however, that upon request to the Insurance Trustee (if appointed) by an
Institutional First Mortgagee which is a benefICiary of an insurance policy, the
proceeds of which are included in the construction fund, such fund shall be
disbursed in the manner provided below for the reconstruction and repair of
major damage.
(ii) Association - Maior Damaoe. If the amount of the estimated costs of
reconstruction and repair which are the responsibility of the Association is more
than $100,000, then the construction fund shall be disbursed in payment of such
costs in the manner contemplated by Subsection 15.3(a)(i) above, but then only
upon the further approval of an architect or engineer qualified to practice in
Florida and employed by the Association to supervise the work.
(iii) Unit Owners. If there is a balance of insurance proceeds after payment of all
costs of reconstruction and repair that are the responsibility of the Association,
this balance may be used by the Association to effect repairs to the Optional
Property (if not insured or if under-insured), or may be distributed to Owners of
the Optional Property who have the responsibility for reconstruction and repair
thereof. The distribution shall be in the proportion that the estimated cost of
reconstruction and repair of such damage to each affected Unit Owner bears to
the total of such estimated costs to all affected Unit Owners, as determined by
the Board; provided, however, that no Unit Owner shall be paid an amount in
excess of the estimated costs of repair for his portion of the Optional Property.
All proceeds must be used to effect repairs to the Optional Property, and if
insufficient to complete such repairs, the Owners shall pay the defICit with
respect to their portion of the Optional Property and promptly effect the repairs.
Any balance remaining after such repairs have been effected shall be distributed
to the affected Unit Owners and their mortgagees jointly as elsewhere herein
contemplated.
(Iv) Surplus. It shall be presumed that the first monies disbursed in payment of costs
of reconstruction and repair shall be from insurance proceeds. If there is a
balance in a construction fund after payment of aU costs relating to the
reconstruction and repair for which the fund is established, such balance shall be
distributed to the beneficial owners of the fund in the manner elsewhere stated;
except, however, that part of a distribution to an Owner which is not in excess of
Assessments paid by such Owner into the construction fund shall not be made
payable jointly to any mortgagee.
(v) Certificate. Notwithstanding the provisions herein, the Insurance Trustee shall
not be required to determine whether or not sums paid by Unit Owners upon
Assessments shall be deposited by the Association with the Insurance Trustee,
nor to determine whether the disbursements from the construction fund are to be
made upon the order of the Association alone or upon the additional approval of
an architect, engineer or otherwise, nor whether a disbursement is to be made
from the construction fund, nor to determine whether surplus funds to be
distributed are less than the Assessments paid by Owners, nor to determine the
payees nor the amounts to be paid. The Insurance Trustee may rely upon a
certificate of the Association, made by its President and Secretary, as to any or
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all of such matters and stating that the sums to be paid are due and property
payable, and stating the names of the payees and the amounts to be paid.
15.4 Assessments. If the proceeds of the insurance are not sufficient to defray the estimated costs of
reconstruction and repair to be effected by the Association, or if at any time during reconstruction
and repair, or upon completion of reconstruction and repair, the funds for the payment of the costs
of reconstruction and repair are insufficient, Assessments shall be made against the Un~ Owners
in sufficient amounts to provide funds for the payment of such costs. Such Assessments on
account of damage to the Insured Property shaD be in proportion to all of the Owners' respective
shares in the Common Elements, and on account of damage to the Optional Property, the
Association shall charge the Owner (but shall not levy an Assessment) in proportion to the cost of
repairing the damage suffered by each Owner thereof, as determined by the Association. .
15.5 Benefrt of Mortcaaees. Certain provisions in this Section 15 are for the benefrt of mortgagees of
Units and may be enforced by any of them.
16. Condemnation.
16.1 Deoosit of Awards with Insurance Trustee. The taking of portions of the Condominium Property or
Association Property by the exercise of the power of eminent domain shall be deemed to be a
casualty, and the awards for that taking shall be deemed to be proceeds from insurance on
account of the casualty and shall be deposited with the Insurance Trustee. Even though the
awards may be payable to Unit Owners, the Unit Owners shall deposit the awards with the
Insurance Trustee; and in the event of failure to do so, in the discretion of the Board of Directors of
the Association, a Charge shall be made against a defaulting Unit Owner in the amount of his or
her award, or the amount of that award shall be set off against the sums hereafter made payable to
that Owner.
16.2 Determination Whether to Continue Condominium. Whether the Condominium will be continued
after condemnation will be determined in the manner provided for determining whether damaged
property will be reconstructed and repaired after casually. For this purpose, the laking by eminent
domain also shall be deemed to be a casualty.
16.3 Disbursement of Funds. If the Condominium is terminated after condemnation, the proceeds of the
awanls and special Assessments wUf be deemed to be insurance proceeds and shaU be owned
and distributed in the manner provided with respect to the ownership and distribution of insurance
proceedS if the Condominium is terminated after a casualty. If the Condominium is not terminated
after condemnation, the size of the Condominium will be reduced and the property damaged by the
laking will be made usable in the manner provided below. The proceeds of the awards and special
Assessments shall be used for these purposes and shall be disbursed in the manner provided for
disbursement of funds by the Insurance Trustee (if appointed) after a casualty, or as elsewhere in
this Section 16 specifically provided.
16.4 Unit Reduced but Habitable. If the taking reduces the size of a Unit and the remaining portion of
the Unit can be made habitable (in the sole opinion of the Association), the award for the taking of
a portion of the Unit shall be used for the foUowing purposes in the order stated and the following
changes shall be made to the Condominium:
(a) Restoration of Unit. The Unit shall be made habitable. If the cost of the restoration
exceeds the amount of the aWard, the additional funds required shall be charged to and
paid by the Owner of the Unit.
(b) Distribution of Surolus. The balance of the award in respect of the Unit, if any, shall be
distributed to the Owner of the Unit and to each mortgagee of the Unit, the remittance
being made payable joinUy to the Owner and such mortgagees.
(e) Adiustment of Shares in Common Elements. If the floor area of the Unit is reduced by the
laking, the percentage representing the share in the Common Elements and of the
Common Expenses and Common Sutplus appurtenant to the Unit shall be reduced by
multiplying the percentage of the applicable Unit prior to reduction by a fraction, the
numerator of which shall be the area in square feet of the Unit after the laking and the
denominator of which shall be the area in square feet of the Unit before the taking. The
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shares of all Unit Owners in the Common Elements, Common Expenses and Common
Surplus shall then be restated as follows:
(i) add the total of all percentages of all Units after reduction as aforesaid (the
'Remaining Percentage Balance'); and
(ii) divide each percentage for each Unit after reduction as aforesaid by the
Remaining Percentage Balance.
The result of such division for each Unit shall be the adjusted percentage for such Unit.
16.5 Unit Made Uninhabitable. If the taking is of the entire Unit or so reduces the size of a Unit that it
cannot be made habitable (in the sole opinion of the Association), the award for the taking of the
Unit shall be used for the following purposes in the order stated and the following changes shall be
made to the Condominium:
(a) Payment of Award. The awards shall be paid first to the applicable InstiMional First
Mortgagees in amounts sufficient to payoff their mortgages in connection with each Unit
which is not so habitable; second, to the Association for any due and unpaid
Assessments; third, jointly to the affected Unit Owners and other mortgagees of their
Units. In no event shall the total of such distributions in respect of a specific Unit exceed
the market value of such Unit immediately prior to the taking. The balance, if any, shall be
applied to repairing and replacing the Common Elements.
(b) Addition to Common Elements. The remaining portion of the Unit, if any, shall become
part of the Common Elements and shall be placed in a condition allowing, to the extent
possible, for use by all of the Unit Owners in the maMer approved by the Board of
Directors of the Association; provided that if the cost of the work therefor shall exceed the
balance of the fund from the award for the taking, such work shall be approved in the
manner elsewhere required for capital improvements to the Common Elements.
(c) Adiustment of Shares. The shares in the Common Elements, Common Expenses and
Common Surplus appurtenant to the Units that continue as part of the Condominium shall
be adjusted to distribute the shares in the Common Elements, Common Expenses and
Common SurplUS among the reduced number of Unit Owners (and among reduced Units).
This shall be effected by restating the shares of continuing Unit Owners as follows:
(i) add the total of all percentages of all Units of continuing Owners prior to this
adjustment, but after any adjustments made necessary by Subsection 16.4(c)
hereof (the 'percentage Balance'); and
(ii) divide the percentage of each Unit of a continuing Owner prior to this adjustment.
but after any adjustments made necessary by Subsection 16.4(c) hereof, by the
Percentage Balance.
The result of such division for each Unit shaU be the adjusted percentage for such Unit.
Similar adjustments shall also be made to each Owner's share in the Residential Limited
Common Elements, Commercial Umited Common Elements and Transient Limited
Common Elements.
(d) Assessments. If the balance of the award (after payments to the Unit Owner and such
Owner's mortgagees as above provided) for the taking is not sufficient to alter the
remaining portion of the Unit for use as a part of the Common Elements, the additional
funds required for such purposes shall be raised by Assessments against all of the Unit
Owners who will continue as Owners of Units after the changes in' the Condominium
effected by the taking. The Assessments shall be made in proportion to the applicable
percentage shares of those Owners after all adjustments to such shares effected pursuant
hereto by reason of the taking.
(e) Arbitration. If the market value of a Unit prior to the taking cannot be determined by
agreement between the Unit Owner and mortgagees of the Unit and the Association
within 30 days after notice of a dispute by any affected party, such value shaH be
determined by arbitration in accordance with the then existing rules of the American
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Arbitration Association, except that the arbitrators shall be two appraisers appointed by
the American Arbitration Association who shall base their determination upon an average
of their appraisals of the Unit. A judgment upon the decision rendered by the arbitrators
may be entered in any court of competent jurisdiction in accordance with the Florida
Arbitration Code. The cost of arbitration proceedings shall be assessed against all Unit
Owners, including Owners who will not continue alter the taking, in proportion to the
applicable percentage shares of such Owners as they exist prior to the adjustments to
such shares effected pursuant hereto by reason of the taking. Notwithstanding the
foregoing, nothing contained herein shall limit or abridge the remedies of Unit Owners
provided in Sections 718.303 and 718.506, F.S.
16.6 T akina of Common Elements. Awards for the taking of Common Elements shall be used to render
the remaining portion of the Common Elements usable in the manner approved by the Board of
Directors of the Association: provided, that if the cost of such work. shall exceed the balance of the
funds from the awards for the taking, the work. shall be approved in the manner elsewhere required
for capital improvements to the Common Elements. The balance of the awards for the taking of
Common Elements, if any, shall be distributed to the Unit Owners in the shares in which they own
the Common Elements after adjustments to these shares effected pursuant hereto by reason of
the taking. If there is a mortgage on a Unit, the distribution shall be paid jointly to the Owner and
the mortgagees of the Unit.
16.7 Amendment of Declaration. The changes in Units, in the Common Elements and in the ownership
of the Common Elements and share in the Common Expenses and Common Surplus that are
effected by the taking shall be evidenced by an amendment to this Declaration of Condominium
that is only required to be approved by, and executed upon the direction of, a majority of all
Directors of the Association.
17. Occupancy and Use Restrictions. In order to provide for congenial occupancy of the Condominium and
Association Property and for the protection of the values of the Units, the use of the Condominium Property
shall be restricted to and shall be in accordance with the following provisions:
17.1 OccuDancy. Each Residential Unit shall be used as a residence and/or home office only, except as
otherwise herein expressly provided, all in accordance with, and only to the extent permitted by,
applicable City, County, :!tate and federal codes, ordinances and regulations. Home office use of a
Residential Unit shall only be permitted to the extent permitted by law and to the extent that the
office is not staffed by employees, is not used to receive clients and/or customers and does not
generate additional visitors or traffic into the Unit or on any part of the Condominium Property. The
Commercial Units may be used for any lawful purpose, and nothing in this Declaration shall
preclude multiple uses from being made from any Commercial Unit.
Each Owner, by acceptance of a deed or otherwise acquiring title to a Transient Unit, understands
and agrees that the Transient Units have been permitted and approved for use only as an
'Extended Stay Hotel' (as defined in the Ordinance). Accordingly, the Transient Units may only be
used and operated in a manner which is at aU times in accordance with the provisions of the
Ordinance (as amended andlor modified from time to time). As a result of such zoning
designation, there is no assurance that a Unit Owner (or any member of the Unit Owner's family,
nor any person legally dependent upon the Unit Owner) may establish a permanent residence at a
Transient Unit. As such, under certain circumstances the Transient Unit may not qualify as the
homestead of a Unit Owner (or any member of the Un~ Owner's family, nor any person legally
dependent upon the Unit Owner), and as a result, no Unit Owner shall rely on the ability to file a
claim for homestead exemption from ad valorem taxes with respect 10 such Transient Unit. Each
Owner, by acceptance of title to a Transient Unit, shall be deemed to have understood and agreed
that, pursuant to the Ordinance and other applicable county and state codes, ordinances and
regulations (as same may be modified from time to time), continuous occupancy of the Transient
Units may be restricted in certain circumstances. Accon:lingly, each Unit shall be bound by all such
restrictions. Each Owner understands and agrees that It. shall be bound by the limitations of the
Ordinance, and all county and state codes, ordinances and regulations (as all of same may be
modified from time to time) and hereby releases the Developer (its members, and its and their
partners, shareholders and employees) from any and all liabilities and/or damage:! resulting from
same.
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The provisions of this Subsection 17.1 shall not be applicable to Units used by the Developer,
which it has the authority to do without Unit Owner consent or approval, and without payment of
consideration, for model apartments, guest suites, sales, re.sales and/or leasing offICes and/or for
the provision of management construction, development and/or financial services.
17.2 Children. Children shall be permilted to be OCcupants of Units.
17.3 Pet Restrictions. Domesticated pets may be maintained in a Residential and/or Transient Unit
provided that such pets are: (a) permitted to be so kept by applicable laws and regulations, (b) not
left unattended on balconies, terraces, patios andlor in lanai areas, (c) generally, not a nuisance to
residents of other Units or of neighboring buildings and (d) not a breed considered to be dal1Q8fOUs
or a nuisance by the Board of Directors (in its sole and absolute discretion); provided that neither
the Developer, the Board nor the Association shall be liable for any personal injury, death or
property damage resulting from a violation of the foregoing and any occupant of a Unit committing
such a violation shaH fully indemnify and hold harmless the Developer, the Board of Directors, each
Unit Owner and the Association in such regard. Pets are not permitted on any POrtion of the
Recreation Deck. Any landscaping damage or other damage to the Common Elements and/or
Limited Common Elements caused by a Unit Owner's pet must be promptly repaired by the Unit
Owner. The Association retains the right 10 effect said repairs and charge the Unit Owner therefor.
Without limiting the generality of Section 18 hereof, a violation of the proVisions of this paragraph
shall entitle the Association to all of its rights and remedies, Including, but not 'im~d to, the right to
fine Unit Owners (as provided in the By-laws and any applicable rules and regulations) and/or to
require any pet to be permanently removed from the Condominium Property. No pets shall be
maintained in any Commercial Unit or limited common element storage space, Provided, however,
that nothing herein shall prohibit the guests, patrons or invitees of any Commercial Unit from
bringing their pets with them when patronizing any Commercial Unii, any tenant of any portion of
any Commercial Unit, or any operation from any Commercial Unit (to the extent permitted by the
applicable Commercial Unit Owner or its tenant).
17.4 Alterations. Without limiting the generality of Subsection 9.1 hereof, but subject to Section 11
hereof, no Residential Unit Owner or Transient Unit Owner shall cause or allow improvements or
physical or structural changes to any Residential Unit or Transient Unit, or the Limited Common
Elements appurtenant thereto, Common Elements or Association Property, including. but not
limited to, painting or other decorating of any nature, installing or altering any electrical wiring or
plumbing systems, installing television antennae, satellite dishes, electronic devices, transmitting
and/or receiving equipment, machinery, or air-conditioning units, which in any manner change the
appearance of any portion of the Building or the exterior of said Unit, without obtaining the prior
written consent of the Association (in the manner specified in Subsection 9.1 hereo~.
Notwithstanding the provisions of Subsection 9.1 above, any Unit Owner may display one portable,
removable United Slates flag in a respectful way, and, on Armed Forces Day, Memorial Day, Flag
Day. Independence Day and Veterans Day, may display in a respectful way portable, removable
official flags, not larger than 4'12 feet by 6 feet that represent the Un~ed States Army, Navy, Air
Force, Marine Corps or Coast Guard.
Curtains, blinds, shutters, levelors, or draperies (or linings thereo~ which face the exterior windows
or glass doors of Residential Units or Transient Units shaff be whHe or off-white in color and shall
be subject to disapproval by the AsSOCiation, in which case they shall be removed and replaced by
the Unit Owner, at such Owner's sole cost, with items acceptable to the Association.
The foregoing shall specifically not apply to the Owners of the Commercial Un~s. SpecifICally, the
Owner of any Commercial Unit Is expressly permitted (without requiring consent from the
Association or any Unit Owner or any other party, other than applicable governmental authorities fo
the extent that prior approval from them is required), to install on the exterior walls of such Owner's
Commercial Unit and any limited Common Element or Common Element balconies, terraces,
patios, lanais, decks or other areas appurtenant thereto such signage, mechanical equipment.
fumiture, antennas, dishes, receiving, transmitting, monitoring and/or other equipment thereon as it
may desire and may further make any alterations or improvements, in the. Commercial Un~
Owner's sole discretion, to such Commercial Unit, Limited Common Elements or Common
Elements. Any improvements and/or alterations made by any Commercial Unit Owner, must
however comply with all applicable governmental codes, ordinances and/or regulations.
17.5 Use of Common Elements and Association ProDem:. The Common Elements and Association
Property shall be used only for furnishing of the services and facilities for which they are
Declaration
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reasonably suited and which are incident to the use and occupancy of Units. In that regard, each
Unit Owner, by acceptance of a deed for a Unit, thereby covenants and agrees that it is the
intention of the Developer that the stairwells of the Building are intended for ingress and egress in
the event of emergency only, and as such are constructed and left unfinished solely as to be
functional for said purpose, without regard to the aesthetic appearance of said stairwells. Similar1y,
the garage and utility pipes serving the Condominium are intended solely for functional purposes,
and as such will be left unflllished without regard to the aesthetic appearance of same. The
foregoing is not intended to prohibit the use of the stairwells. garage, and utility pipes for any other
proper purpose. Additionally, no Un~ Owner shall be permitted to store any nems whatsoever on
balconies, patios, or terraces, including, without limitation, bicycles and/or motor bikes. Further, no
grilling shall be permitted on any balcony, patio or terrace.
17.6 Nuisances. No nuisances (as defined by the Association) shall be allowed on the Condominium or
Association Proper1y. nor shaD any use or practice be allowed which is a source of annoyance to
occupants of Units or which interferes with the peaceful possession or proper use of the
Condominium and/or Association Property by its residents, occupants or members. No activity
specifICally pennilted by this Declaration, including, without limitation, activities or businesses
conducted from the Commercial Units, shall be deemed a nuisance, regardless of any noises
and/or odors emanating therefrom (except, however, to the extent that such odors and/or noises
exceed limits permitted by applicable law). EACH UNIT OWNER, BY ACCEPTANCE OF A DEED
OR OTHERWISE ACQUIRING TITLE TO A UNIT SHALL BE DEEMED TO UNDERSTAND AND
AGREE THAT IT IS INTENDED (WITHOUT CREATING ANY OBLIGATION) THAT
RESTAURANTS, CAFES, BAKERIES AND/OR OTHER FOOD SERVICE OPERATIONS MAY
BE OPERATED FROM ANY OF THE COMMERCIAL UNITS AND THAT SUCH OPERATIONS
MAY RESULT IN THE CREATION OF ODORS WHICH MAY AFFECT ALL PORTIONS OF THE
CONDOMINIUM PROPERTY. ACCORDINGLY, EACH OWNER AGREES (1) THAT SUCH
ODORS SHAll NOT BE DEEMED A NUISANCE HEREUNDER, (2) THAT NEITHER THE
DEVelOPER, ANY COMMERCIAL UNIT OWNER, NOR ANY TENANT AND/OR OPERATOR
FROM ANY COMMERCIAL UNIT SHAll BE LIABLE FOR THE EMANATION OF SUCH
ODORS AND/OR ANY DAMAGES RESULTING THEREFROM, AND (3) TO HAVE RELEASED
DEVELOPER, ANY COMMERCIAL UNIT OWNER, AND ANY TENANT AND/OR OPERATOR
FROM ANY COMMERCIAL UNIT FROM ANY AND ALL LIABILITY RESULTING FROM SAME.
Similarly, inasmuch as the Commercial Units may attract customers, patrons and/or guests who
are not members of the Association, such additional traffic over and upon the Common Elements
shall not be deemed a nuisance hereunder. In the event of a dispute or question as 10 what may
be or become a nuisance, such dispute or question shall be submitted to the Board of Directors,
which shall render a decision in writing, which decision shall be dispositive of such dispute or
question.
17.7 No Imorooer Uses. No improper, offensive, hazardous or unlawful use shall be made of the
Condominium or Association Property or any part thereof. and all valid laws, zoning ordinances
and regulations of all govemmental bodies having jurisdiction thereover shall be observed.
Violations of laws, OIders, rules, regulations or requirements of any governmental agency haVing
jurisdiction thereover, relating to any portion of the Condominium and/or Association Proper1y, shall
be corrected by, and at the sole expense of, the party obligated to maintain or repair such portion
of the Condominium Property, as elsewhere herein set forth. Notwithstanding the foregoing and
any provisions of this Declaration, the Articles of Incorporation or By-laws, the Association shall
not be liable to any person(s) for its failure to enforce the provisions of this Subsection 17.7. No
activity specifICally permitted by this Declaration. including, without limitation, activities or
businesses conducted from the Commercial Units, shalf be deemed to be a Violation of this
Subsection 17.7.
17.8 Leases. No portion of a Residential Unit (other than an entire Residential Unit) may be rented.
Leasing of Residential Units shall be subject to the prior written approval of the Association. Every
lease shall be in writing and shall specifically provide that the Association shall have the right to
terminate the lease upon default by the tenant in observing any of the provisions of this
Declaration, the Articles of Incorporation or By-Laws of the Association, or other applicable
provisions of any agreement, document or instrument goveming the Condominium or administered
by the Association.
Every lease of a Unit shall specifically provide (or, if it does not, shall be automatically deemed to
provide) that a material condition of the lease shall be the tenant's full compliance with the
covenants, terms, conditions and restrictions of this Declaration (and all Exhibits hereto) and with
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any and all rules and regulations adopted by the Association from time to time (before or after the
execution of the lease and/or any modifications, renewals or extensions of same). The Unit Owner
will be joinUy and severally liable with the tenant to the AsSOCiation for any amount which is
required by the Association to repair any damage to the Common Elements resulting from acts or
omissions of tenants (as determined in the sole discretion of the Association) and to pay any claim
for injury or damage to property caused by the negligence of the tenant and special Assessments
may be levied against the Unit therefor. All leases are hereby made subordinate to any lien filed by
the Condominium Association, whether prior or subsequent to such lease. The Association may
charge a fee in connection with the approval of any lease, sublease, or other transfer of a
Residential Unit requiring approval, provided, however that such fee may not exceed $100.00 per
applicant other than husbandlwife or parenlldependent child, which are considered one applicant,
and provided further, that if the lease or sublease is a renewal of a lease or sublease with the same
lessee or sublessee, no charge shall be made. If so required by the Association, a tenant wishing
to lease a Residential Unit shall be required to place In escrow with the Association a reasonable
sum, not to exceed the equivalent of one month's rental, which may be used by the Association to
repair any damage to the Common Elements and/or Association Property resulting from acts or
omissions of tenants (as deteJmined in the sole discretion of the Association). Payment of interest,
claims against the deposit, refunds and disputes regarding the disposition of the deposit shall be
handled in the same fashion as provided in Part 1/ of Chapter 83, Florida Statutes. No lease of a
Residential Unit shall be for a period of less than six (6) months and no more than two (2) leases
may be entered into in one year (i.e., no Residential Unit may be leased more than two times in
anyone year period). Notwithstanding anything herein contained to the contrary, each Unit Owner
recognizes and agrees that there are no leasing restrictions imposed upon the Commercial Units
and the Commercial Units may be leased on any terms that may be desired by the Commercial
Unit Owners.
Notwithstanding anything herein contained to the contrary, the foregoing restrictions (including,
without limitation, those regarding minimum lease terms, regarding prior written approval of leases
and the payment of a screening fee) shall not be applicable to the Transient Units, which may be
rented and shall be offered and made available for transient occupancy as and to the extent
required by the Ordinance. In that regard, no lease of a Transient Unit shall be for a period of more
than one hundred eighty (180) consecutive days.
The lease of a Residential Unit or Transient Unit for a term of six (6) months or less is subject to a
tourist development tax assessed pursuant to Section 125.0104, Florida Statutes. A Residential
Unit Owner or Transient Unit Owner leasing his or her Unit for a term of six (6) months or less
agrees, and shall be deemed to have agreed, for such Owner, and his or her heirs, personal
representatives, successors and assigns, as appropriate, to hold the Association, the Developer
and all other Unit Owners harmless from and to indemnify them for any and all costs, claims,
damages, expenses or liabilities whatsoever, arising out of the failure of such Unit Owner to pay
the tourist development tax and/or any other tax or surcharge Imposed by the State of Florida with
respect to rental payments or other charges under the lease, and such Unit Owner shall be solely
responsible for and shan pay to the applicable taxing authority, prior to delinquency, the tourist
development tax and/or any other tax or surcharge due with respect to rental payments or other
charges under the lease.
When a Residential Unit is leased, a tenant shall have all use rights in Association Property and
those Common Elements otherwise readily available for use generally by the Unit Owner, and the
Owner of the leased Residential Unit shall not have such rights, except as a guest, unless such
rights are waived in writing by the tenant. Nothing herein shall interfere with the access rights of
the Unit Owner as a landlord pursuant to Chapter 83, Florida Statutes. The Association shall have
the right to adopt rules to prohibit dual usage by a Residential Unit Owner and a tenant of
Association Property and Common Elements otherwise readily available for use generally by
Owners.
17.9 Weiaht. Sound and other Restrictions. Unless installed by the Developer or meeting the sound
insulation specifications set forth herein (as same may be modified from time to lime), hard and/or
heavy surface floor coverings, such as tile, marble, wood, and the like will be permitted only in
foyers, kitchens and bathrooms. Although prior Board approval is not required, the installation of
any hard and/or heavy surface floor coverings must meet the following specifications: the
aggregate sound isolation and acoustical treatment shall calJ}' a minimum Sound Transmission
Classification (STC) of 50, and the installalion of the foregoing insulation materials shall be
performed in a manner that provides proper mechanical isolation of the flooring materials from any
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rigid part of the building structure, whether of the concrete subfloor (vertical transmission) or
adjacent walls and fittings (horizontal transmission) and same must be installed prior to the Unn
being occupied. Chipping, grinding and/or bushing of the concrete slab is expressly prohibited,
due to the post tension design of the Building. Notwithstanding the foregoing, the floor coverings
(and insulation and adhesive material therefor) instaUed on any balcony, terrace, patio and/or I~ai
shall not exceed a thickness that will result in the finish level of the balconies, terraces, patios
and/or lanais being above the bottom of the scuppers or diminish the required height of the rails (as
established by the applicable building code). Also, the installation of any improvement or heavy
object must be submitted to and approved by the Board, and be compatible with the overall
structural design of the Building. All areas within a Unit other than foyers, kitchens and bathrooms,
unless to receive floor covering approved by the Board, are to receive sound absorbent, less dense
floor coverings, such as carpeting or hard surface floor coverings meeting the specificatjons
described above. The Board will have the right to specify the exact material to be used on
balconies, terraces, patios and/or lanais, Including, without limitation, the materials which may be
used around the outer areas of any balconies, terraces, patios and/or lanais which are visible from
any portion of the Common Elements. Any use guidelines set forth by the Association shall be
consistent with good design practices for the waterproofing and overall structural design of the
Building. Owners will be held strictly liable for violations of these restrictions and for all damages
resulting therefrom and the AssocJation has the right to require immediate removal of violations.
Applicable warranties of the Developer, ff any, shall be voided by violations of these
restrIctions and requirements. Each Unft Owner, by acc:eptance of a deed or other
conveyance of their Unit. hereby acknowledges and agrees that sound transmission In a
multi-story building such as the Condominium Is very difficult to control, and that noises
from adjOining or nearby Units and/or mechanical equipment can often be heard in another
Unit. The Developer does not make any representation or warranty as to the level of sound
transmission between and among Units and the other portions of the Condominium
Property, and each Unit Owner shall be deemed to waive and expressly release any such
warranty and claim for loss or damages resulting from sound transmission.
Notwithstanding anything herein contained to the contrary, the installation of insulation under hard
surface floor coverings shall not be required for any Unit thai is not located above another Unit or
above Common 8ements that may reasonably be considered by the Board to be areas of general
circulation (e.g. lobbies, hallways, mailrooms, if any etc.), and/or recreational areas. Accordingly, if
a Unit has no Improvements below it, or only the parking garage or a mechanicalrpom below it, il
shall not be required 10 install insulation Under hard surface floor coverings.
17.10 Milioation of Damoness and Humidj~. No Unit Owner shall install, within his or her Unit, or upon
the Common Elements or Association Property, non-breathable Wall-coverings or Iow-permeance
paints. Additionally, any and all buill-in casework, furniture, and or shelving in a Unit must be
instaUed over floor coverings to allow air space and air movement and shall not be installed with
backboards flush against any gypsum board, masonry block or concrete wall. Additionally, all Unit
Owners, whether or not Occupying the Unit shall periodically /Un the air conditioning system to
maintain the Unit temperature. whelher or not occupied, al 7SDF, to minimize humidity in the Unil.
leaks, leaving exterior doors or windows open, wet flooring and moisture will contribule to Ihe
growth of mold, mildew, fungus or spores. Each Unit Owner, by acceptance of a deed, or
otherwise acquiring title to a Unit, shall be deemed to have agreed that Developer is not
responsible, and hereby disclaims any responsibiUty for any iUness, personal injury, death or
allergic reactions which may be experienced by the Unil Owner, its family members andlor ils or
their guests, tenants and invitees and/or the pets of all of the aforementioned persons, as a result
of mold, mildew, fungus or spores. It is the Unit Owner's responsibility to keep the Unit clean, dry,
well-ventilated and free of contaminalion. While the foregoing are intended to minimize the
potential development of molds, fungi, mildew and other mycotoxins, each Unit Owner understands
and agrees thaI there is no method for completely eliminating the development of molds or
mycotoxins. The Developer does not make any representations or warranties regarding the
existence or development of molds or mycotoxlns and each Unit Owner shall be deemed to waive
and expressly release any such warranty and claim for loss or damages resulting from the
existence and/or development of sane. In furtherance of the righls of the Association as set forth
in Subsection 11.1(a) above, in the event that the Association reasonably believes that the
provisions of this Subsection 17.10 are not being complied with, then, the Association shall have
the righl (but not the obligation) to enter the Unit (without requiring the consent of the Unit Owner or
any other party) to tum on the air conditioning in an effort to cause the temperature of the Unit to
be maintained as required hereby (with all ulility consumption costs to be paid and assumed by the
Unil Owner). To the extent that electric service Is not then available to the Unit, the Association
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shall have the further right, but not the obligation (without requiring the consent of the Unit Owner
or any other party) to connect electric service to the Unit (with the costs thereof to be borne by the
Unit Owner, or if advanced by the Association, to be promptly reimbursed by the Unit Owner to the
Association, with all such costs to be deemed Charges hereunder). Each Unit Owner, by
acceptance of a deed or other conveyance of a Unit, holds the Developer harmless and agrees to
indemnify the Developer from and against any and all claims made by the Unit Owner and the Unit
Owner's guests, tenants and Invitees on account of any illness, allergic reactions, personal injury
and death to such persons and to any pets of such persons, including all expenses and costs
associated with such claims including, without limitation, inconvenience, relocation and moving
expenses, lost time, lost eaming power, hotel and other accommodation expenses for room and
board, all attorneys fees and other legal and associated expenses through and inclUding all
appellate proceedings with respect to all matters mentioned in this Subsection 17.10.
17.11 Exterior Imorovements. Without limiting the generality of Subsections 9.1 or 17.4 hereof, but
subject to any provision of this Declaration specifICally permitting same, no Unit Owner shall cause
anything to be affixed or attached to, hung, displayed or placed on the exterior walls, doors,
balconies, lanais or windows of the Building (including, but not limited to, awnings, signs, storm
shutters, satellite dishes, screens, window tinting, fumiture, fixtures and equipment), without the
prior written consent of the Association. Unit Owners may also attach a religious object on the
mantel or frame of the Unit Owner's door not to exceed 3 Inches wide, 6 inches high and 1.5
inches deep.
17.12 Sians. Notwithstanding anything to the contrary in this Declaration, the Owners of the Commercial
Units may affix or attach lighted or unlighted signs on the exterior walls, doors, adjacent balconies,
terraces, patios and/or lanais and/or windows of the Building, (whether same are a part of the Unit,
the Limited Common Elements, or the Common Elements) adjacent to the Owner's Commercial
Unit, or to the windows of the applicable Commercial Unit, without receiving the consent of the
Association, the Board or any other party (other than any applicable govemmental authority to the
extent that prior approval from them Is required by applicable governmental codes, ordinances
and/or regulations). Notwithstanding anything herein contained to the contrary, the provisions of
this Section 17.12 shall not be amended without the affirmative vote of Unit Owners holding not
less than 4/5ths of all voting interests in the Condominium.
17.13 Association Access to Units. In order to facilitate access to Units by the Association for the
purposes enumerated in Subsection l1.1(a) hereof, it shall be the responsibility of all Unit Owners
to deliver a set of keys to their respective Units (or to otherwise make access available) to the
Association to use in the performance of its functions. No Unit Owner shall change the locks to his
or her Unit (or otherwise preclude access to the Association) without so notifying the Association
and delivering to the Association a new set of keys (or otherwise affording access) to such Unit.
17.14 Exterior Storm Shutters. The Board of Directors shall, from time to lime, establish exterior storm
shutter specifications which comply with the applicable building code, and establish permitted
colors, styles and materials for exterfor storm shutters. Subject to the provisions of Subsection 9.1
above, the Association shall approve the installation or replacement of exterior storm shutters
conforming with the Board's specifICations. The Board may, with the approval of a majority of the
voting interests in the Condominium, install exterior storm shutters, and may (without requiring
approvel of the membership) maintain, repair or replace such approved shutters, whether on or
within Common Elements, Limited Common Elements, Residential Limited Common Elements,
Commercial Limited Common Elements, Transient Limited Common Elements, Units or
Association Property; provided, however, that if laminated glass or window film, in accordance with
all applicable building codes and standards, architecturally designed to serve as hurricane
protection, is installed, the Board may not install exterior storm shutters in accordance with this
provision. All shutters shall remain open unless and until a storm watch or storm warning is
announced by the National Weather Center or other recognized weather forecaster. A Unit Owner
or occupant who plans to be absent during all or any portion of the hurricane season must prepare
his or her Unit prior to departure by designating a responsible firm or individual to care for the Unit
should a hurricane threaten the Unit or should the Unit suffer hurricane damage, and furniShing the
Association with the name(s) of such firm or individual.
To the extent that Developer provides exterior storm shutters for any portions of the Building (which
it is not obligated to do) or if the Association obtains exterior storm shutters for any portion of the
Condominium Property, the Association (as to shutters for the Common Elements) and the Unit
Owners (as to shutters covering doors or windows to a Unit) shall be solely responsible for the
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installation of such exterior storm shutters from time to time and the costs incurred by the
Association (as to installation of shutters for the Common Elements) shall be deemed a part of the
Common Expenses of the Condominium that are included in the Assessments payable by Unit
Owners. The obligations of the Association assumed hereby shall include, without limitation,
development of appropriate plans to allow for the timely installation of the shutters for the Common
Elements, and all obligations with respect to the repair, replacement andlor upgrade of the shutters
for the Common Elements. Developer shall have no obligations with respect to the installation of
the shutters, andlor for the repair, replacement and/or upgrade of the shutters. Nothing herein
shall obligate the Association to install shutters protecting individual units, nor to open or close
same as a storm is approaching, or after it passes.
17.15 Recorded Aareements. The use of the Units, the Condominium Property and the Association
Property shall at all times comply with all restrictions, covenants, conditions, limitations,
agreements, reservations and easements now or hereafter recorded in the public records.
17.16 Transient Units. Notwithstanding anything herein contained to the contrary, the Transient Units
shall at all times be used and maintained in accordance with the Ordinance. No Owner of a
Transient Unit nor any member of the Unit Owner's family, nor any person legally dependent upon
the Owner of a Transient Unit may establish a permanent residence at the Transient Unit or any
real property contiguous thereto. As such, under no circumstances shall (nor may) the Transient
Unit constitute his or her homestead, and accordingly, no Owner of a Transient Unit shall be
entitled to file a claim for homestead exemption 'rom ad valorem taxes with respect to such
Transient Unit. Each Owner of a Transient Unit understands and agrees that he or she shall be
bound by the limitations imposed by the Ordinance and hereby releases the Developer (its
members, and its and their partners, shareholders and employees) from any and all liabilities
andlor damages resulting from same. EACH UNIT OWNER SHOULD THOROUGHLY REVIEW
THE ORDINANCE TO DETERMINE THE EFFECT SAME WILL HAVE ON THE CONDOMINIUM
PROPERTY.
17.17 Relief bv Association. The Association shaD have the power (but not the obligation) to grant relief
in particular circumstances from the provisions of specific restrictions contained in this Section 17
for good cause shown, as determined by the Association in its sole discretion.
17 .18 Effect on Develooer and Commercial Unit Owners. Subject to the following exceptions, the
restrictions and timitations set forth in this Section 17 shall not apply to the Developer nor to Units
owned by the Developer. The Developer shaD not be exempt from the restrictions, if any, relating
to requirements that leases or lessees be approved by the Association, pet restrictions, occupancy
of Units based on age and vehicular restrictions, except as such vehicular restrictions relate to the
Developer's construction, maintenance, sales, re-sales, leasing and other marketing and financing
activities, which activities the Developer can perform without the prior consent of the Unit Owners.
Further, notwithstanding anything herein contained to the contrary, the provisions of this Section 17
shall not be amended, altered or modified in any manner affecting the Commercial Units. without
the prior consent of the majority of the total voting interests of the Commercial Unit Owners from
time to time.
18. Comoliance and Defautt. The Association, each Unit Owner, occupant of a Unit, tenant and other invitee of
a Unit Owner shall be governed by and shall comply with the terms of this Declaration and all exhibits
annexed hereto and the rules and regulations adopted pursuant to those documents. as the same may be
amended from time to time and the provisions of all of such documents shall be deemed incorporated into
any lease of a Unit whether or not expressly stated in such lease. The Association (and Unit Owners, ~
appropriate) shall be entitled to the following relief in addition to the remedies provided by the Act:
18.1 Mandatory Nonbindina Arbitration of Disootes. Prior to the institution of court litigation, the parties
to a Dispute shall petition the Division for nonbinding arbitration. The arbitration shall be conducted
according to rules promulgated by the Division and before arbitrators employed by the Division.
The filing of a petition for arbitration shall toll the applicable statute of limitation for the applicable
Dispute, until the arbitration proceedings are completed. Any arbitration decision shall be
presented to the parties in writing, and shall be deemed final if a complaint for trial ~ ~ is not
filed in a court of competent jurisdiction in which the Condominium is located within thirty (30) days
following the issuance of the arbitration decision. The prevailing party in the arbitration proceeding
shall be awarded the costs of the arbitration, and reasonable attomeys' fees and costs incurred in
connection with the proceedings. The party who flies a complaint for a trial de ~ shall be
charged the other party's arbitration costs, courts costs and other reasonable costs, including,
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without limitation, attorneys' fees, investigation expenses and expenses for expert or other
testimony or evidence incurred after the arbitration decision, if the judgment upon the trial ~ .!!QJ!Q
is not more favorable than the arbitration decision. If the judgment is more favorable, the party who
filed a complaint for trial de novo shall be awarded reasonable court costs and attomeys' fees. Any
party to an arbitration proceeding may enforce an arbitration award by filing a petition in a court of
competent jurisdiction in which the Condominium is located. A petition may not be granted unless
the time for appeal by the filing of a complaint for a trial de .!!QJ!Q has expired. If a complaint for a
trial de .!!QJ!Q has been filed, a petition may not be granted with respect to an arbitration award that
has been stayed. If the petition is granted, the petitioner may recover reasonable attomeys' fees
and costs incurred in enforcing the arbitration award.
18.2 Neclicence and ComDllance. A Unit Owner and/or tenant of a Un~ shall be liable for the expense
of any maintenance, repair or replacement made necessary by the Owner's negligence or by that
of any member of the Owner's family or the Owner's guests, employees, agents, invitees or
lessees, but only to the extent such expense is not met by the proceeds of insurance actually
collected in respect of such negligence by the Association. In the event a Unit Owner, tenant or
occupant falls to maintain a Unit or falls to cause such Unit to be maintained, or fails to observe
and perform all of the provisions of the Declaration, the By-Laws, the Articles of Incorporation of
the Association, applicable rules and regulations, or any other agreement. document or instrument
affecting the Condominium Property or administered by the Association, in the manner required,
the Association shall have the right to proceed in equity to require performance andlor compliance,
to impose any appUcable fines (in accordance with the provisions of Subsection 18.3 below), to sue
at law for damages, and to charge the Unit Owner for the sums necessary to do whatever work is
required to put the Unit Owner or Unit In compliance, provided, however, that nothing contained in
this Subsection 18.2 shall authorize the Association to enter a Unit to enforce compliance. In any
proceeding arising because of an alleged faRure of a Unit Owner, a tenant or the Association to
comply with the requirements of the Act, this Declaration, the exhibits annexed hereto, or the rules
and regulations adopted pursuant to said documents, as the same may be amended from time to
time, the prevailing party shall be entitled to recover the costs of the proceeding and such
reasonable attorneys' fees (including appellate attorneys' fees). A Unit Owner prevailing in an
action with the Association, in addition to recovering his reasonable attomeys' fees, may recover
additional amounts as determined by the court to be necessary to reimburse the Unit Owner for his
share of Assessments levied by the Association to fund its expenses of the litigation.
18.3 Fines. In addition to any and all other remedies available to the Association, a fine or fines may be
imposed upon an Owner for failure of an Owner, his family, guests, invitees, lessees or employees,
to comply with any covenant, restriction, rule or regulation herein or Articles of Incorporation,
By-Laws or Rules and Regulations of the Association, provided the following procedures are
adhered to:
(a) Notice: The party against whom the fine is sought to be levied shall be afforded an
opportunity for hearing after reasonable notice of not less than fourteen (14) days and
said notice shall include: (i) a statement of the date, time and place of the hearing; (ii) a
statement of the provisions of the Declaration, By-Laws, Articles or rules which have
allegedly been violated; and (Iii) a short and plain statement of the matters asserted by the
Association.
(b) Hearina: The non-compliance shall be presented to a committee of other Unit Owners,
who are neither Board Members nor persons residing in a Board Member's household,
who shall hear reasons why penalties should not be imposed. The party against whom
the fine may be levied shall have an opportunity to respond, to present evidence, and to
provide wrillen and oral argument on aU issues involved and shall have an opportunity at
the hearing to review, challenge, and respond to any material considered by the
committee. A written decision of the committee shall be submitted to the Owner or
occupant by not later than twenty-one (21) days after the meeting. If the committee does
not agree with the fine, the flOe may not be levied.
(c) Fines: The Board of Directors may impose fines against the applicable Unit up to the
maximum amount pennitted by law from time to time. At the time of the recordation of this
Declarallon, the Act provides that no fine may exceed $100.00 per violation, or $1,000.00
in the aggregate.
(d) Violations: Each separate incident which is grounds for a fine shall be the basis of one
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(e)
separate fine. In the case of continuing violations, each continuation of same after a
notice thereof is given shall be deemed a separate incident.
Payment of Fines: Fines shall be paid not later than thirty (30) days after notice of the
imposition thereof.
ADDlication of Fines: All monies received from fines shall be allocated as directed by the
Board of Directors.
(n
Non-exclusive Remedy: These fines shall not be construed to be exclusive and shall exist
in addition to all other rights and remedies to which the Association may be otherwise
legally entitled; however, any penalty paid by the offending Owner or occupant shall be
deducted from or offset against any damages which the Association may otherwise be
entitled to recover by law from such Owner or occupant.
19. Termination of Condominium. The Condominium shall continue until (a) terminated by casualty loss,
condemnation or eminent domain. as more particularly provided in this Declaration, or (b) such time as
withdrawal of the Condominium Property from the provisions of the Act is authorized by a vote of Owners
owning at least 80% of the applicable interests in the Common Elements and by the Institutional First
Mortgagees of Units to which at least sixty-seven percent (67%) of the voting interests of Units subject to
mortgages held by Institutional First Mortgagees are appurtenant. In the event such withdrawal is
authorized as aforesaid, and provided that the Board first notifies the Division of an intended withdrawal, the
Condominium Property shall be subject to an action for partition by any Unit Owner, mortgagee or lienor as
if owned in common in which event the net proceeds of the partition sale shall be divided among all Unit
Owners in proportion to their respective interests in the Common Elements, provided, however, that no
payment shall be made to a Unit Owner until there has first been paid off out of the Owner's share of such
net proceeds aU mortgages and liens on the Owner's Unit in the order of their priority. The termination of
the Condominium, as aforesaid, shall be evidenced by a certificate of the Association executed by its
President and Secretary, certifying as to the basis of the termination and said certificate shall be recorded
among the public records of the County. The Association shall, within thirty (30) business days following
such recordation, provide the Division with a copy of such recorded certificate. This Section may not be
amended without the consent of the Developer as long as it owns any Unit
(g)
20. Additional Rklhts of Mortaaoees and Others.
20.1 Availabilitv of Association Documents. The Association shall have current and updated copies of
the following available for inspection by Institutional First Mortgagees during normal business hours
or under other reasonable circumstances as determined by the Board: (a) this Declaration; (b) the
Articles; (c) the By-Laws; (d) the rules and regulations of the Association; and (e) the books,
records and financial statements of the Association.
20.2 Amendments. Subject to the other provisions of this Declaration and except as provided
elsewhere to the contrary, an amendment directly affecting any of the following shall require the
approval of a Majority of Institutional First Mortgagees: (a) voting rights; (b) increases in
assessments by more than 25% over the previous assessment amount, assessment liens or the
priority of assessment liens; (c) reductions in reserves for maintenance, repair and replacemeni of
Common Elements and/or Association Property; (d) responsibility for maintenance and repairs; (e)
reallocation of interests in the Common Elements (including Limited Common Elements) or rights
to their use; (Q redefinition of Unit boundaries; (g) conversion of Units into Common Elements or
Common Elements into Units; (h) expansion or contraction of the Condominium; (i) hazard or
fidelity insurance requirements; OJ imposition of restrictions on leasing of units; (k) imposition of
restrictions on the seWng or transferring of title to Units; (I) restoration or repair of the Condominium
after a casualty or partial condemnation; (m) any action to terminate the Condominium after
casualty or condemnation; and (n) any provision that expreSSly benefits mortgage holders, insurers
or guarantors as a class. In accordance with Section 718.110(11), Florida Statutes, any consent
required of a mortgagee may not be unreasonably withheld.
20.3 Notices. Any holder, insurer or guarantor of a mortgage on a Unit shall have, if first requested in
writing from the Association, the right to timely written notice of:
(a) any condemnation or casualty loss affecting a material portion of the Condominium and/or
Association Property or the affected mortgaged Unit;
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(b) a sixty (60) day delinquency in the payment of the Assessments on a mortgaged Unit;
(c) the occurrence of a lapse, cancellation or material modification of any insurance policy or
fidelity bond maintained by the Association; and
(d) any proposed action which requires the consent of a specified number of mortgage
holders.
20.4 Additional Riahts. Institutional First Mortgagees shall have the righ~ upon written request to the
Association, to: (a) receive a copy of an audited financial statement of the Association for the
immediately preceding fiscal year if such statements were prepared; and (b) receive notices of and
attend Association meetings.
21. Covenant Runnina With the Land. All provisions of this Declaration, the Articles, By-Laws and applicable
rules and regulations of the Association, shall, to the extent applicable and unless otherwise expressly
herein or therein provided to the contrary, be perpetual and be construed to be covenants running with the
Land and with every part thereof and Interest therein, and all of the provisions hereof and thereof shall be
binding upon and inure to the benefit of the Developer and subsequent owne~s) of the Land or any part
thereof. or interest therein, and their respective heirs, personal representatives, successors and assigns, but
the same are not intended to create nor shall they be construed as creating any rights in or for the benefrt of
the general public. All present and future Unit Owners, tenants and occupants of Un~ shall be subject to
and shall comply with the provisions of this Declaration and the Articles, By-Laws and applicable rules and
regulations, all as they may be amended from time to time. The acceptance of a deed or conveyance, or the
entering into of a lease, or the entering into occupancy of any Unit, shall constitute an adoption and
ratification of the provisions of this Declaration, the Articles, By-Laws and applicable rules and regulations of
the Association, all as they may be amended from time to time, including, but not limited to, a ratification of
any appointments of attomeys-in-fact contained herein.
22. Nature of Imorovements.
Resort Condominium. The Condominium is classified as a 'resort condominium' under Section 509.242,
Florida Statutes because the owners of the Transient Units shall be permitted to lease their Units more than
three (3) times in a calendar year for periods of less than thirty (30) days or one (1) calendar month,
whichever is less. Any and all Obligations andlor liabilities resulting from the qualifICation of the
Condominium as a 'resort condominium" shall be assumed by the Association and all costs andlor
expenses relating to same shall be deemed Transient Limited Common Expenses, provided, however, that
the Association shall use reasonable efforts to cause the costs and expenses associated with same to be
bome solely by the Owners of the Transient Un~ availing themselves of any of the services required by the
Ordinance andlor by virtue of being deemed a 'resort condominium".
23. Disclaimer of Warranties. Except only for those warranties provided In Section 718.203, Florida
Statutes (and then only to the extent applicable and not yet expired), to the maximum extent lawful
Developer hereby disclaims any and all and each and every express or Implied warranties, whether
established by statutory, common, case law or otherwise, as to the design, construction, sound
and/or odor transmission, existence and/or development of molds, mildew, toxins or fungi,
fumishing and equipping of the Condominium Property, including, without limitation, any implied
warranties of habitability, fitness for a particular purpose or merchantability, compliance with plans,
all warranties imposed by statute (other than those imposed by Section 718,203, Florida Statutes,
and then only to the extent applicable and not yet expired) and all other express and implied
warranties of any kind or character. Developer has not given and the Unit Owner has not relied on
or bargained for any such warranties. Each Unit Owner, by accepting a deed to a Unit, or other
conveyance thereof, shall be deemed to represent and warrant to Developer that In deciding to
acquire the Unit, the Unit OWner relied solely on such Unit Owner's Independent inspection of the
Unit and the Condominium. The Unit Owner has not received nor railed on any warranties and/or
representations from Developer of any kind, other than as expressly provided herein.
As to any Implied warranty which cannot be disclaimed entirely, all secondary, incidental and
consequential damages are specifically excluded and disclaimed (claims for such secondary,
incidental and consequential damages being clearly unavailable In the case of implied warranties
which are disclaimed entirely above).
Declaration
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Further, given the climate and humid conditions In South FlorIda, molds, mildew, toxins and fungi
may exist and/or develop within the Unit and/or the Condominium Property. Each Owner is hereby
advised that certain molds, mildew, toxins and/or fungi may be, or If allowed to remain for a
sufficient period may become, toxic and potentially pose a health risk, By acquiring title to a Unit,
each Owner shall be deemed to have assumed the risks associated with molds, mildew, toxins
and/or fungi and to have released the Developer from any and all liability resulting from same,
Including, without limitation, any liability for Incidental or consequential damages (which may result
from, without limitation, the inability to possess the Unit, Inconvenience, moving costl, hotel costs,
storage costs, Iou of time, lost wages, lost opportunities and/or personal Injury). Without limiting
the generality of the foregoing, leaks, leaving exterior doors or windows open, wet flooring and
moisture will contribute to the growth of mold, mildew, fungus or spores. Each Unit Owner, by
acceptance of a deed, or otherwise acquiring title to a Unit, shall be deemed to have agreed that
Developer Is not responsible, and the Developer hereby disclaims any responsibility for any Illness
or allergic reactions, personal Injury or desth which may be experienced by the Unit Owner, Its
family members and/or its or their guests, tenants and Invitees and to any pets of persons
aforementioned in this sentence, as a result of mold, mildew, fungus or spores. It Is the Unit
Owner's responsibility to keep the Unit clean, dry, well-ventilated and free of contamination.
Each Owner understands and agrees that for some time in the future, it, and Its guests, tenants and
Invitees may be disturbed by the noise, commotion and other unpleasant effects of nearby
construction activity and as a result Owner and its guests, tenants and Invitees may be Impeded in
using portions of the Condominium Property by that activity. Because the CondomInium Is located
in an urban area, demolition or constNctlon of buildings and other structures within the Immediate
area or within the view lines of any particular Unit or of any part of the Condominium (the uVlews")
may block, obstruct, shadow or otherwise affect Views, which may currently be visible from the Unit
or from the Condominium. Therefore, each Owner, for Itself, Its successors and assigns, agrees to
release Developer, Its partners and Its and their officers, members, directors and employees and
every affiliate and person related or affiliated in any way with any of them ("Developer'S Affiliates")
from and against any and all losses, claims, demands, damages, costs and expenses of whatever
nature or kind, including attomey's fees and costs, including those incurred through all arbitration
and appellate proceedings, related to or arising out of any claim against the Developer or
Developer's Affiliates related to Views or the disruption, noise, commotion, and other unpleasant
effects of nearby development or construction. As a result of the foregoing, there Is no guarantee of
view, security, privacy,location, design, density or any other matter. Additionally, inasmuch as the
Commercial Units may attract customers, patrons and/or guests who are not members of the
Association, such additional traffic over and upon the Common Bements, and in or around the
Condominium Property, shall not be deemed a nuisance.
Lastly, each Owner, by acceptance of a deed or other conveyance of a Unit, understands and agrees
that there are various methods for calculating the square footage of a Unit, and that depending on
the method of calculation, the quoted square footage of the Unit may vary by more than a nominal
amounl Additionally, as a result of In the field constNctIon, normal construction variances, other
permitted changes to the Unit, and settling and shifting of improvements, actual square footage of a
Unit may also be affected. By accepting title to a Unit, the applicable Owner(s) shall be deemed to
have conClusively agreed to accept the size and dimensions of the Unit, regardless of any variances
in the square footage from that which may have been disclosed at any time prior to closing, Without
limiting the generality of this Section 23, Developer does not make any representation or warranty
as to the actual size, dimensions (including ceiling heights) or square footage of any Unll
24. AddiUonal Provisions.
24.1 Notices. All notices to the Association required or desired hereunder or under the By-Laws of the
Association shall be sent by certified mail (retum receipt requested) to the Association in care of its
office at the Condominium, or to such other address as the Association may hereafter designate
from time to time by notice in writing to all Unit Owners. Except as provided specifically in the Act,
all notices to any Unit Owner shall be sent by first class mail to the Condominium address of such
Unit Owner, or such other address as may have been designated by him or her from time to time,
in writing, to the Association. All notices to mortgagees of Units shall be sent by first class mail to
their respective addresses, or such other address as may be designated by them from time to time,
in writing to the Association. All notices shall be deemed to have been given when mailed in a
postage prepaid sealed wrapper, except notices of a change of address, which shall be deemed to
Declaration
.45.
Reserved for Cleric 01 Court
have been given when received, or five (5) business days after proper mailing, whichever shall first
occur.
24.2 Intemrelation. Except where otherwise provided herein, the Board of Directors of the Association
shall be responsible for interpreting the provisions hereof and of any of the Exhib~s attached
hereto. Such interpretation shall be binding upon all parties unless wholly unreasonable. An
opinion of legal counsel that any interpretation adopted by the Association is not unreasonable
shall conclusively establish the validity of such interpretation.
24.3 Mortoaaees. Anything herein to the contrary notwithstanding, the Association shall not be
responsible to any mortgagee or lienor of any Unit hereunder, and may assume the Unit is free of
any such mortgages or liens, unless written notice of the existence of such mortgage or lien is
received by the Association.
24.4 Exhibits. There is hereby incorporated in this Declaration all materials contained in the Exhibits
annexed hereto. except that as to such Exhibits, any conflicting provisions set forth therein as to
their amendment, modification, enforcement and other matters shall control over those hereof.
24.5 Sianature of President and Secretarv. Wherever the signature of the President of the Association
is required hereunder, the signature of a vice-president may be substituted therefor, and wherever
the signature of the Secretary of the Association is required hereunder, the signature of an
assistant secretary may be substituted therefor, provided that the same person may not execute
any single instrument on behalf of the Association in two separate capacities.
24.6 Govemino Law. Should any dispute or litigation arise between any of the parties whose rights or
duties are affected or determined by this Declaration, the Exhibits annexed hereto or applicable
rules and regulations adopted pursuant to such documents, as the same may be amended from
time to time, said dispute or litigation shall be governed by the laws of the State of Florida.
24.7 Severabilitv. The invafidity in whole or in part of any covenant or restriction, or any section,
subsection, sentence, paragraph, clause, phrase or word, or other provision of this Declaration, the
Exhibits annexed hereto, or applicable rules and regulations adopted pursuant to such documents,
as the same may be amended from time to time, shall not affect the validity of the remaining
portions thereof which shall remain in full force and effect.
24.8 Waiver. The failure of the Association or any Unit Owner to enforce any covenant, restriction or
other provision of the Act, this Declaration, the exhibits annexed hereto, or the rules and
regulations adopted pursuant to said documents, as the same may be amended from time to time,
shall not constitute a waiver of their right to do so thereafter.
24.9 RatifICation. Each Unit Owner, by reason of having acquired ownership (whether by purchase, gift,
operation of law or otherwise), and each occupant of a Unit, by reason of his occupancy, shall be
deemed to have acknowledged and agreed that all of the provisions of this Declaration, and the
Articles and By-Laws of the Association, and applicable rules and regulations, are fair and
reasonable in all material respects.
24.10 Execution of Documents: Attornev-in-Fact. Without limiting the generality of other Sections of this
Declaration and without such other Sections limiting the generality hereof, each Owner, by reason
of the acceptance of a deed to such Owner's Unit, hereby agrees to execute, at the request of the
Developer, all documents or consents which may be required by all govemmental agencies 10
. allow the Developer and its affiliates to complete the plan of development of the Condominium as
such plan may be hereafter amended, and each such Owner further appoints hereby and thereby
the Developer as such Owner's agent and attorney-in-fact to execute, on behalf and in the name of
such Owners, any and all of such documents or consents. This Power of attorney is irrevocable
and coupled with an interest. The provisions of this Section may not be amended without the
consent of the Developer.
24.11 Gender: Pluralitv. Wherever the context so permits, the singular shall include the plural, the plural
shall include the singular, and the use of any gender shall be deemed to include an or no genders.
24.12 Caotions. The captions herein and in the Exhibits annexed hereto are inserted only as a matter of
convenience and for ease of reference and in no way define or limit the scope of the particular
document or any proviSion thereof.
Declaration
-46.
Reserved for Clerk at Court
24.13 Liability. Notwithstanding anything contained herein or in the Articles of Incorporation, By-laws,
any rules or regulations of the Association or any other document governing or binding the
Association (collectively, the "Association Documents'), the Association, except to the extent
specifICally provided to the contrary herein, shall not be liable or responsible for, or in any manner a
guarantor or insurer of, the health, safety or welfare of any Owner, occupant or user of any portion
of the Condominium andlor Association Property including, without limitation, Owners and their
guests, invitees, .agents, servants, contractors or subcontractors or for any property of any such
persons. Without limiting the generality of the foregoing:
(a) it is the express intent of the Association Documents that the various provisions thereof
which are enforceable by the Association and which govern or regulate the uses of the
properties have been written, and are to be interpreted and enforced, for the sole purpose
of enhancing and maintaining the enjoyment of the properties and the value thereof;
(b) the Association is not empowered, and has not been created, to act as an entity which
enforces or ensures the compliance with the laws of the United States, State of Florida,
County, City and/or any other jurisdiction or the prevention of tortious activities; and
(c) the provisions of the Association Documents setting forth the uses of assessments which
relate to health, safety and/or welfare shall be interpreted and applied only as limitations
on the uses of assessment funds and not as creating a duty of the Association to protect
or further the health, safety or welfare of any person(s}, even if assessment funds are
chosen to be used for any such reason.
Each Owner (by virtue of such Owner's acceptance of title to a Unit) and each other person having
an interest in or lien upon, or making use of, any portion of the properties (by virtue of accepting
such interest or lien or making such use) shall be bound by this provision. Notwithstanding the
foregoing, nothing contained herein shall relieve the Association of its duty of ordinary care, as
established by the Act, in carrying out the powers and duties set forth herein. As used herein,
'Association" shall include within its meaning all of Association's directors, officers, committee and
board members, employees, agents, contractors (including management companies),
subcontractors, successors, nominees and assigns. The provisions hereof shall also inure to the
benefit of Developer, which shall be fully protected hereby.
-Signatures contained on the following page.....
Declaralion
-47-
(Reserved 101' Clerk 01 COUll)
IN WITNESS WHEREOF, the DevelOper has caused this Dedaralion to be duly executed and its alrporate
seal to be hereunto affixed as of the.1L day of f.W,....1 ,2010.
Signed in the presence of:
_{JI:~lJw
...I-:.,!;,,~
Boynton Waterways Investment Associates, LLC,
a F10rlda limited IIabUlty company
By: New Boston Promenade LLC,
a member hereunto duly authorized
By: New Bos1on Promenade UmilBd Partnen>hip,
its sole member
By:
By:
Address: 111 FJlO,1 A~larriir Avt.,5.a~ AW;
'P.n;1\~nn ~ I FL ~AAfl2,
e -....,...
... NIl. ... ".....
_c:-.........t~_
~. DO.....
....
0ec:I1IlIlion
-47 -
lRIMIdfllrCllltdc:a.o
~
PROIENADE (BOYt<<ON BEACH) CONDCMNMf ASSOCIATION. INC., . FbIda IXIqIIlIIIIaII nat I:lr
pral,1IIIIby ~ tJ ICOIPllllhl berllllllIIIIlI d /he.... ~ uIlIgIIIoI_1IIII blIlIIIII....
upon . by I1e pnlllIIIans ofllll DedIIIIDn II1d EIlhIbIlIlllIIllhId ImIO.
IN WITNESS WHEREOF. PROMENADE (BOYNTON BEACH) CONDOMlNlUll ASSOCIATION, INC. !III
CIlIIICl ~tJ be IIgned ~ II ... by II praper om-IIIIIIII c:orpcnIIt ... tJ belllllld .... ..!.!:!!:
day of ftJ. .1JJ.JI)
WrIneIIId by;
PROIIENADE (BOYNTON EACH) CONDDIIiUI
ASSOCIATION, INC., . FIDltdI CCll~ '* I:lr
pd
w~W\
I-~&: ~~'"'l-
By:
~TEEAl.J
)
) ss:
COUNlY OF PAL.M"BEAa4) .'
. -tI. . ....-
j t ~. ~ was GnDIIlldgId b8b11lI8 Ids .JL dIy of r ~h ~. 2O~ by
"JDII(J tI d"Hlin. . A8Iidn rI PROIIENADE 8fACIQ
CONoo.raIJII AS8OCIA11ON, ItC., . FIaIkII ~.l nat I:lr pnlI, on bIhIIf rllIIId GllflGIIIIoa. HIMtiI
--.................. - -~ .
~..- ~ .
.... f --. ~ ,k;-
NaIIry PubIc, SlItI ~FbkJa
0-", No.: I 'P t'l1 ~ f(
STATE OF FlORIDA
My CamlI'IIIIIlln expns:
J"1' J.O'J-
J
__II.
.....-......
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~..-
, I
(Reserved for Clerk of Court)
CONSENT OF MORTGAGEE
THIS CONSENT is given as of the 20th day of April, 2010, by Anglo Irish Bank Corporation Limited f/k/a
Anglo Irish Bank Corporation PLC ("Mortgagee'), being the owner and holder of that certain Amended and Restated
Construction Mortgage and Security Agreement recorded February 20, 2007 in Official Records Book 21428, at
Page 0214 of the Public Records of Palm Beach County, Florida as same may be amended or modified from time
to lime, and including any and all other documents securing the indebtedness referenced in the mortgage (the
'Mortgage") encumbering the Condominium Property described in the foregoing Declaration.
WHEREAS, Boynton Waterways Investment Associates, LLC, a Florida IimRed liability company
("Developer") has requested Mortgagee to consent to the recording of the Declaration of Promenade Condominium
(the "Declaretionj.
NOW, THEREFORE, Mortgagee consents to the recordation of the Declaration and agrees that the lien and
effect of the Mortgage shall be subject and subordinate to the terms of the Declaration.
Mortgagee makes no warranty or any representation of any kind or nature conceming the Declaration, any
of its terms or provisions, or the legal sufficiency thereof, and disavows any such warranty or representation as well
as any participation in the development of Promanade Condominium (the "Condominium'), and does not assume
and shall not be responsible for any of the obligations or liabilities of the Developer contained in the Declaration or
the prospectus. (if any) or other documents issued in connection with the promotion of the Condominium. None of
the representations contained in the prospectus, (If any) or other documents shall be deemed to have been made
by Mortgagee, nor shall they be construed to create any obligation on Mortgagee to any person relying thereon.
Except only as expressly provided herein, this consent does not affect or Impair the rights and remedies of
Mortgagee as set forth In the Mortgage or in the Declaration.
Made as of the day and year first above written.
Witnessed by:
Anglo Irish Bank Corporation Limited f1k/a Anglo Irish Bank
Corporation PLC
By: !.. {,-I..A.- f .1-_____
Name: A 10l"':.J I-I l-1.....:~
Title: 6...,-,-",,~ J;<.L. ~,:el~1r-
COMMONWEALTH OF MASSACHUSETTS
)SS:
COUNTY OF SUFFOLK )
The foregoing Instrument was acknowledged before me this .~ J ,- day of April, 2010 by .4,. L,~ if\; .y '"
as ;:,., J;"" ,~. \/ (' of Anglo Irish Bank Corporation LimRed f/kJa Anglo Irish Bank Corporation PLC, on
behalf of said company. He/she is Dersonally known to me./ or has produced
as identification.
iA",,;k:-{ ~- ~ ~
v/Name: . ~"",,,-i-, ^ i?d'~~
Notary Public, Commonwealth of Massachusetts
My Commission Expires:
At;\/ u.,.?o:3
MIA 181177982v1 Aprl/2O, 2010
Exhibit 1
Legal Description
Page 2 of Exhibit 2 to the Declaration of Condominium
Reserved lor Clerk 01 Court
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Percentage Share of Ownership tlf the Common Elements, Common Surplus end Responsibi~ty for Commoo Expenses
PefulllOgO Of awno..hlp lToloI Sa footaa..
UnllT.- Unltflfl UnIU' Av UnIt Ta"l b. 1_ 5.Ft
TH-l 101N l02N 103N. lG1N 301N 302N,303N 3G1N 1015 1025 1035 104S 3015.3028 303S 3G18 O,361lll82% 5,815072'11 1685 26960
AI 502N - PH02N 502N. PH03N 5025 . PH025 5025- PH038 0,176618% 7,064720% BOS 32200
Al. NONE 4028 4035 O,18385\l% 0,367718% B36 '678
A2 501N. PH01N 5O(J'5 O,17lll109% 3,59Bl11O% 820 18400
A2. NONE 0,183200% O,lI321lll% 835 835
A3 504N - PHGlN 5045 Gl5 0, 'II 3,685940'11 840 16800
M NONE 4 % O,21282O'l1 970 870
A6 NONE 4,15 0,2 % 0,219402'11 1000 1000
B1 513N -1431N 5135-14315 0,231051% 4,28491\l% 1085 19530
Bl. NONE 4138 0,238051% 1085 1085
B2 NONE 4045 0,254506% 1180 1180
53 508N. 1408N 507N - 1407N 814N - PH14N S08S -14Oe$, 5075 .14075 5145 - PH145 0,259981% 1 1185 88380
B30 nON -141011I 5105 -14105 0,_% 1230 22140
Il3l> NONE 4145 0,218513% 0,218513% 1315 1315
Il4 51SN- PH15N 515S.PHl5S O,2611l88% 5,23832O'l\ 1194 23680
- NONE 4168 0,2_% 0,293818% 1340 1340
B5 508N 508N 508S 5095 0,275130% 1,1005211% 1254 5016
B8 80BN . PH08N 809N. PH08N BOBS. PH086 6085 - PHOe5 III 10,662812% 1350 48800
B7 512N - 1412N 4'2S -14125 5,77354\l% 1365 26315
Cl 611N-1411N 5"8- 14115 0, 8,417504'11 1625 29250
C2 605N -1405N S06S . 14055 0, [8 leso 29700
PHI PH12N PH125 0,360258'11 0, 1842 32B4
PH2 PH11N PHllS 0,363110'1\ 0, '855 3310
PH3 PHOSN PHOS5 0,437708% '895 3990
HI H-SS' 208N - 406N 2085-3065 0,120871% 550 2750
H2 H-S52 215N 2155 0.127253% 580 1180
H3 H..J5, 212N 2125 0,127692% 0,255384% 582 1184
H4 H-JS2 214N 2145 0,138029'1\ 0.272058'11 620 1240
H5 H.S53 213N 2135 O,13&02\l% 0.272058'11 620 1240
H8 H-Bl 20BN . 40BN 208S - 30BS O,I3602\l% 0,680145% 620 3100
H7 H-584 211N-411N 2116-3115 0,137126% 0,685630% 625 3125
He H-JS3 209N-409N 2OlI5-308S 0,137126% 0,815630'1\ 826 3125
He H-SS5 203N - 403N 203S . 3038 0,138320% O,61lll6OO'lI 635 3175
Hl0 H-JS4 204N - 4G1N 2G16-304S 0,140417% 0.702085% 840 3200
Hl1 H-SS8 3,5N - 41SN 3155 0,141514'11 0,424542% 645 1935
H12 H-JS5 312N - 412N 3125 0,142611'11 0,427833'11 650 1950
H13 fH.S5 20SN - 405N 2055-3OliS 0,156872% 0,764380% 715 3575
H14 H-JS8 314N - 414N 3145 0,183454% 0,4110362'11 746 2235
HIS ij:j:Ssa 313N-413N 3135 0,163454% 0,4110362'11 745 2235
H16 H-5S1l 21011I - 410N 2105 - 3105 0,168745% 0,833726'11 780 3eOO
H17 H-D51 216N 21as 0,17_ O,3SIl818'11 B20 1840
H1B H-OS2 207N 2075 O,183ZOO% B35 '670
HIe H-DS3 202N-404N 2025 - 3025 0,183200% 835 4175
H2O H-0S4 201N - 401N 2015-3015 0, I 83200% 835 4175
H21 H-DS5 316N,416N 3185 O,1e7462% 110O 2700
CU.l 0,452946% O,462Me% 2110 2110
CU.2 0.183423'11 0,183423% 836 B36
CU-3 0,318132% 0.318132% 1450 1450
CU-C . 0.219402% 1000 1000
CU-S O.84B504% 2409 2499
Cl!-6 0, 0,362013% 1550 1550
CU-7 0,362013% 0,362013% '550 1550
cau 0,362013'11 0, % 1650 1$50
CU-9 0.183430% O. 836 B36
CU.l0 0.482958'/0 O. 2110 2110
CU.l1 0.789652'11 0, 3507 3507
100,00000o%
455,7B3
.EIlbIl!!t1:.?
Percentage Sharo of OMlershlp of the Resldentlllllmjed Common Elements
Percentage of Own.nhlp
UnltTu.... Un"" Unit," Bv Un" ToYI bv Tv...
TH-l 101N 100N lD3N 100N 301N 302'" 303N 304N 1015 1025 1035 1045,3015 3025 3035 3045 0,38603847'1\ 6,176618%
Al 602N - PH02N 602N -1'H03N 5025 - PHOZ8 6025 - PH03S 0,111442787'1\ 7,3n115%
Al. NONE 4025 403S O,181l1l1827'1\ O,3B3!1n%
A2. NONE 4018 0,191_% 0,181301%
t>:J 504N - PH04'" 504S - PH045 0,19244848% 3,114I83O%
AA NONE 4055 II 0,222230%
AS NONE 4115 .
Bl 513N -1431N 5138 -14315
Bl. NONE 4135
B2 NONE 404S 0,26575842%
B3 508N -1406N 507N - 1407N 514N - PH14N 5065 - 14068 5078 -14075 5145 - PH148 O,2714BB9ll%
83. 51ON. 1410N 5105 -14105 0281nM3%
B3b NO"'E 4148 0,301270311%
B4 515N -PH15N 5155 - PH158 0,27354182'1\ 5,470978%
B4a NONE 4155 O,:!0689795'1\ 0._'1\
B5 506N 506N 5065 509S 0,28728510'1\ 1.1481_
B6 808N - PHOBN B09N - PH09N 6OB8 - PHOBS eoes -PH09S 0,308281188'1\ 11,134403\\
87 512N-1412N 4125 -14125 0,317307511% 8,028844'1\
Cl 511N.1411N 5118.14115 0,37229229% 8,701281'1\
C2 605N . 1405N 6055 - 1405S O,37801l116\\ 6.804357%
PHl PH12N PH12S 0.37611704\\ 0,752374'1\
PH2 PH11N PHllS 0,37918631'1\ 0,7511331%
PH3 PH05N I'H05S 0,45708033'1\ 0,914121'1\
HI H-SSl 206N - 406N 2065 - 308S 0,12600862% 0,630033%
HZ H-SS2 215'" 2158 0,13217971'1\ 0,285759'1\
H3 H-JSl 212N 2125 0,13333792% 0.268878'1\
H4 H-JS2 214N 2145 0,14204383'1\ 0,284088%
H5 H-SS3 213N 2135 O,142043B3'1\ 0.2&4081%
He fl.Sl 20BN . 406N 2085 - 308S 0,14204383% 0,710219'1\
H7 H-SSol 211N - 411N 2118.3115 0,14318934'1\ 0.715847%
H8 H.J83 209N - 409N 209S . 3095 0,14318934% 0,715847%
H9 H-585 203N - 403N 203S - 3035 0,14548037'1\ 0,727402%
Hl0 H-J64 204N.404N 204S - 3045 O,14ll82589% 0,733128%
Hl1 H-SS8 315N - 415N 3155 O,14n714O'l\ 0,443314%
H12 H.JS6 312N .412N 3125 II 0.4411751%
H13 H-SS7 206N - 405N 2055 - 30SS 0, O,llllO43'l\
H14 ......sa 314N - 414N 3145 0, 0,512045%
H16 H-5sa 313N - 413N 3135 0, II
H18 H-ssa 21ON.41ON 2105 - 3105 0,
H17 H-DSI 216N 2185 O,lS
H18 H-DS2 207N 2075 0,191
H19 H-DS3 202N - 404N 2028 - 3025 0,191 3OO88'llo
H2O H-DS4 201N-401N 201S - 3015 O,1913OOl18% O,956S05'l\
HZl H-DS6 316N 418N 31BS 0,20619285% 0,818578%
Exhibit H3-3"
Percentage Share of Ownership In the Commercial Umltacf Common Elements
Unit Type
ClJ..1
Cu-2
CU-3
,CU-4
CU-S
CU-6
ClJ..7
ClJ.8
CU-9
'CU-10
CU-11
% Ea, Type
10.9326424900%
4.3316062200%
7.5129533700%
5.1813471500%
12,9533678800%
8,5492228000%
8.5492228000%
8.5492228000%
4.3316062200%
10.9326424900%
18,1761658000%
Exhibit 3-4
Percentage Share of Ownership of the Transient Limited Common Elements
pen:enta . of Ownership
Unit TYD8 Unit #s Unlttlfl By Unit Total by Typ'
H1 H-SS1 206N - 406N 2065 - 3065 0.01030561 5.152804%
H2 H-552 215N 2155 0,01086773 2,173546%
H3 H-J51 212N 2125 0,01090621 2.181041%
H4 H-J52 214N 2145 0,01161723 2.323446%
H5 H-553 213N 2135 0,0116172 2,323446%
H6 H-51 208N - 408N 2085 - 3085 0,0116172 5,808616%
H7 H-SS4 211N-411N 2115 - 3115 0,01171092 6.866459%
H8 H-J53 209N - 409N 2095 - 3095 0.01171092 5,855459%
H9 H-S55 203N - 403N 2035 - 3035 0.0118982S 5,949147%
H10 H-JS4 204N - 4Q4N 2045 - 3045 0,01199198 5.995990%
H11 H-5S6 315N - 415N 3155 0.01208567 3.625700%
H12 H-J55 312N - 412N 3125 0.01217936 3.653807%
H13 H-S5'l 205N .405N 2055 - 305S 0,01339729 6.698645%
H14 H-JS6 314N - 414N 3145 0,01395941 4,187824%
H15 H-5S8 313N - 413N 3135 0.01395941 4.187824%
H16 H-S59 210N - 410N 2105 - 3105 0,01424048 7.120238%
H17 H-D51 216N 2165 0,01536472 3,072945%
H18 H-DS2 207N 2075 0.0156457E 3.129157%
H19 H-D53 202N - 404N 2025 - 3025 0.01564579 7.822893%
H2O H-DS4 201N - 401N 2015 - 3015 0.01564579 7.822893%
H21 H-D55 316N.416N 3165 0.01686372 5,059117%
Exhibit "4"
BY.LAWS
OF
PROMENADE (BOYNTON BEACH) CONDOMINIUM ASSOCIATION,INC.
A corporation not for profit organized
under the laws of the State of Florida
1. Identity, These are the By-Laws of PROMENADE (BOYNTON BEACH) CONDOMINIUM ASSOC~ TION,
INC. (the' Association'), a corporation not for profit incorporated under the laws of the State of Florida, and
organized for the purposes set forth in ils Articles of Incorporation.
Fiscal Year. The fiscal year of the Association shall be the twelve month period commencing
January 1 st and terminating December 31 st of each year.
Seal, The seal of the Association shall bear the name of the corporation, the word "Florida., the
words "Corporation Not for Profit', and the year of incorporation.
2, Definitions. For convenience, these By-Laws shall be referred to as the 'By-Laws" and the Articles of
Incorporation of the Association as the 'Articles', The other terms used in these By-Laws shall have the
same definitions and meanings as those set forth in the Declaration for PROMENADE CONDOMINIUM,
unless herein provided to the contrary, or unless the context otherwise requires.
1,1
1.2
3. Members.
3.1 Annual Meelina. The annual members' meeting shall be held on the date, at the place and at the
time determined by the Board of Directors from time to time, provided that there shall be an annual
meeting every calendar year and the location of the annual meeting shall be within 45 miles of the
Condominium Property. The purpose of the meeting shall be, except as provided herein to the
contrary, to elect Directors, and to transact any other business authorized to be transacted by the
members, or as stated in the notice of the meeting sent to Unit Owners in advance thereof, Unless
changed by the Board of Directors, the first annual meeting shall be held in the month of October
following the year in which the Declaration is filed.
3.2 Special Meelinas. Special members' meetings shall be held at such places as provided herein for
annual meetings, and may be called by the President or by a majority of the Board of Directors of
the Association, and must be called by the President or Secretary upon receipt of a written request
from a majority of the members of the Association. The business conducted at a special meeting
shall be limited to those agenda items specifically identified in the notice of the meeling. Special
meetings may also be called by Unit Owners in the manner provided for in the Act.
Notwithstanding the foregoing: (i) as to special meetings regarding the adoption of the
Condominium's estimated operating budget, reference should be made to Section 12.1 of these
By-Laws; and (ii) as to special meetings regarding recall of Board members, reference should be
made to Section 4.3 of these By-Laws.
3,3 Participation bv Unit Owners, Subject to the following and such further reasonable restrictions as
may be adopted from time to time by the Board, Unit Owners shall have the right to speak at the
annual and special meetings of the Unit Owners, committee meetings and Board meetings with
reference to all designated agenda items. A Unit Owner does not have the right to speak with
respect to items not specifically designated on the agenda, provided, however, that the Board may
permit a Unit Owner to speak on such items in ils discretion. Every Unit Owner who desires to
speak at a meeting, may do so, provided that the Unit Owner has filed a written request with the
Secretary of the Association not less than 24 hours prior to the scheduled time for commencement
of the meeting. Unless waived by the chairman of the meeting (which may be done in the
chairman's sole and absolute discretion and without being deemed to constitute a waiver as to any
other subsequent speakers), all Unit Owners speaking at a meeting shall be limited to no more and
no less than three (3) minutes per speaker. Any Unit Owner may tape record or videotape a
meeting, subject to the following and such further reasonable restrictions as may be adopted from
time to time by the Board:
(a) The only audio and video equipment and devices which Unit Owners are authorized to
utilize at any such meeting Is equipment which does not produce distracting sound or light
emissions;
(b) Audio and video equipment shall be assembled and placed in position in advance of the
commencement of the meeting;
(c) Anyone videotaping or recording a meeting shall not be permitted to move about the
meeting room in order to facilitate the recording; and
(d) At least 48 hours (or 24 hours with respect to a Board meeting) prior written notice shall
be given to the Secretary of the Association by any Unit Owner desiring to make an audiD
or video taping of the meeting.
3.4 Notice of Meetina: Waiver of Notice. Notice of a meeting of members (annual or special), stating
the time and place and the purpose(s) for which the meeting is called, shall be given by the
President or Secretary, A copy of the notice shaD be posted at a conspicuous place .on the
Condominium Property. The notice of an annual or special meeting shall be hand delivered,
electronically transmitted or sent by regular mail to each Untt Owner, unless the Untt Owner waives
in writing the right to receive nDtice of the annual meeting by mail. The defivery Dr mailing shall be
to the address of the member as last fumished to the Association by the Unit Owner. However, if a
Unit is owned by more than one person, the Association shall provide notice, for meetings and all
other purposes, to that one address initially identified for that purpose by the Developer and
thereafter as one or more of the Owners of the Untt shall so advise the Association In writing, or if
no address is given or if the Owners disagree. notice shall be sent to the address for the Owner as
set forth on the deed of the Untt. The pDstlng and mailing of the notice for either special or annual
meetings, which notice shall incorporate an identification of agenda ttems, shall be effected not
less than fourteen (14) continuous days, nor more than sixty {50} days, prior to the date of the
meeting. The Board shall adopt by rule, and give notice to Unit Owners of, a specific location on
the Condominium Property upon which all notices of members' meetings shall be posted. In lieu of
or in addition to the physical posting of notice of any meeting of the Untt Owners on the
Condominium Property, the Association may, by reasonable rule, adopt a procedure for
conspicuously posting and repeatedly broadcasting the notice and the agenda on a closed-circutt
cable television system serving the Association, if any, However, if broadcast notice is used in lieu
of a notice posted physically on the Condominium Property, the notice and agenda must be
broadcast at least four times every broadcast hour of each day that a posted notice is otherwise
required. When broadcast notice is provided. the notice and agenda must be broadcast in a
manner and for a sufficient continuous length of time so as to allow an average reader tD observe
the notice and read and comprehend the entire content of the notice and the agenda,
Notice of specific meetings may be waived before or after the meeting and the attendance of any
member (or person authorized to vote for such member), either in person or by proxy, shall
constitute such member's waiver of notice of such meeting, and waiver of any and all objections tD
the place of the meeting, the lime of the meeting or the manner in which it has been called or
convened, except when his (or his authorized representative's) attendance is fDr the express
purpose of objecting at the beginning of the meeting to the transactiDn of business because the
meeting is not lawfully called.
An officer of the Association, or the manager or other person providing notice of the meeting shall
proVide an affKlavtt or United States Postal Service certifICate of mailing, to be included in the
official records of the Association, affirming that notices of meetings were posted and mailed or
hand delivered in accordance with this Section and SectiDn 718.112(2)(d) of the Act, to each Unit
Owner at the appropriate address for such Unit Owner, No other proof of notice of a meeting shall
be required.
3,5 Quorum. A quorum at members' meetings shall be attained by the presence, either in person or by
proxy (limited or general), of persons entitled to cast in excess Df 33 1/3% of the votes of members
entitled to vote at the subject meeting.
3,6 VDtina.
(a) Number of Votes. Except as provided in Section 3.11 hereof, in any meeting Df members,
the Owners Df each Unit shall be entitled to cast the number of votes designated for their
Unit as set forth in the Articles. The vote of a Unit shall nDt be divisible.
(b) Maioritv VDte. The acts approved by a majority of the votes present in person or by proxy
at a meeting at which a quorum shall have been attained shall be binding upon all Unit
Owners for all purposes, except where otherwise provided by law. the Declaration, the
Articles Dr these By-Laws. As used In these By-Laws, the Articles or the Declaration, the
terms 'majority of the Unit Owners' and .maJority of the members' shall mean a majDrity
of the VDtes entitfed to be cast by the members and not a majority of the members
themselves and shall further mean more than 50% of the then total authorized votes
present in person or by proxy and voting at any meeting of the Unit Owners at which a
quorum shall have been attained. Similarly, if some greater percentage Df members is
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required herein or in the Declaration or Articles, it shall mean such greater percentage of
the voles of members and not of the members themselves,
(c)
Votine Member. If a Unit is owned by one person, that person's right to vote shall be
established by the roster of members. If a Un~ is owned by more than one person, those
persons (including husbands and wives) shall decide among themselves as to who shall
cast the vote of the Un~. In the event that those persons cannot so decide, no vote shall
be cast. A person casting a vote for a Unit shall be presumed to have 1I1e authority to do
so unless the President or the Board of Directors is otherwise notified. If a Unit is owned
by a corporation, partnership, limited liability company, trust or any other lawful entity, the
person entitled to cast the vote for the Unit shall be designated by a certificate signed by
persons having lawful authority to bind the corporation, partnership, limited liability
company, trust or other lawful entity and filed with the Secretary of the Association, Such
person need not be a Unit Owner, Those certificates shall be valid until revoked or until
superseded by a subsequent certifICate or until a change in the ownership of the Unit
concemed. A certificate designating the person entiUed to cast the vote for a Unit may be
revoked by any record owner of an undivided interest in the Unil. If a certificate
designating the person entitled to cast the vote for a Unit for which such certificate is
required is not on file or has been revoked, the vote attributable to such Unit shall not be
considered in determining whether a quorum Is present, nor for any other purpose, and
the total number of authorized votes in the Association shall be reduced accordingly until
such certificate is filed.
3,7 Proxies. Votes to be cast at meetings of the Association membership may be cast in person or by
proxy. Except as specifically provided herein, Unit Owners may not vote by general proxy, but may
vote by limited proxies substantially conforming 10 the limited proxy form approved by the Division.
No voting Interest or consent right allocated to a Unit owned by the Association shall be exercised
or considered for any purpose, whether for a quorum, an election, or otherwise. Limited proxies
shall be permitted to the extent permitted by the Act. No proxy, limited or general, shall be used in
the election of Board members, General proxies may be used for other matters for which limited
proxies are not required and may also be used in voting for nonsubstantive changes to items for
which a limited proxy Is required and given. A proxy may be made by any person entitled to vote,
but shall only be valid for the specific meeting for which originally given and any lawful adjoumed
meetings thereof. In no event shall any proxy be valid for a period longer than 90 days after the
date of the first meeting for which ~ was given. Every proxy shall be revocable at any time at the
pleasure of the person executing it A proxy must be in writing, signed by the person authorized to
cast the vote for the Unit (as above described), name the person(s) voting by proxy and the
person authorized 10 vote for such person(s) and filed with the Secretary before the appointed time
of the meeting, or before the time to which the meeting is adjoumed. Each proxy shall contain the
date, time and place of the meeting for which it is given and, if a limited proxy, shall set forth the
matters on which the proxy holder may vote and 1I1e manner in which the vote is 10 be cast. There
shall be no limitation on the number of proxies which may be held by any person (including a
designee of the Developer). If a proxy expressly provides, any proxy holder may appoint, in
writing, a substitute to act in its place. If such provision is not made, substitution is not permitted.
3,8 Adiourned Meetinas. If any proposed meeting cannot be organized because a quorum has not
been attained, the members who are present, either in person or by proxy, may adjoum the
meeting from time to time until a quorum is present, provided notice of the newly scheduled
meeting is given In the manner required for the giving of notice of a meeting. Except as required
above, proxies given for the adjourned meeting shall be valid for the newly scheduled meeting
unless revoked for reasons other than the new date of the meeting.
3.9 Order of Business. If a quorum has been attained, the order of business at annual members'
meetings, and, if applicable, at other members' meetings, shall be:
(a) Collect any ballots not yet cast
(b) Call to order by President;
(c) Appointment by the President of a chairman of the meeting (who need not be a member
or a director);
(d) Appointment of inspectors of election;
(e) Counting of Ballots for Election of Directors;
(Q Proof of notice of the meeting or waiver of notice;
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(g) Reading of minutes;
(h) Reports of officers;
(i) Reports of committees;
0) Unfinished business;
(k) New business;
(I) Adjournment.
Such order may be waived in whole or In part by direction of the chairman,
3.10 Minutes of Meetina. The minutes of all meetings of Unit Owners shall be kept in a book available
for inspection by Unit Owners or their authorized representatives and Board members at any
reasonable time. The Association shall retain these minutes for a period of not less than seven (7)
years.
3.11 Action Without A Meetino. Anything to the contrary herein notwithstanding, to the extent lawful,
any action required or which may be taken at any annual or special meeting of members, may be
taken without a meeting, without prior notice and without a vote if a consent in writing, setting forth
the action so taken, shall be signed by the members (or persons authorized to cast the vote of any
such members as elsewhere herein set forth) having not less than the minimum number of votes
that would be necessary to authorize or take such action at a meeting of members at which all
members (or authorized persons) entitled to vote thereon were present and voted, In order to be
effective, the action must be evidenced by one or more written consents deSCribing the action
taken, dated and signed by approving members having the requisite number of votes and entitled
to vote on such action, and delivered to the Secretary of the Association, or other authorized agent
of the Association. Written consent shall not be effective to take the corporate action referred to in
the consent unless signed by members having the requisite number of votes necessary to
authorize the action within sixty (60) days of the date of the eaniest dated consent and delivered to
the Association as aforesaid. Any written consent may be revoked prior to the date the Association
receives the required number of consents to authorize the proposed action. A revocation is not
effective unless in writing and until received by the Secretary of the Association, or other
authorized agent of the Association. Within ten (10) days after obtaining such authorization by
written consent, notice must be given to members who have not consented in writing. The notice
shall fairly summarize the material features of the authorized action. A consent signed in
accordance with the foregoing has the effect of a meeting vote and may be described as such in
any document.
4, Directors.
4.1 Membership, The affairs of the Association shall be governed by a Board of not less than three (3)
directors, the exact number to be determined in the first instance in the Articles, and, thereafter,
except as provided herein, from time to time designated by the Board. Directors must be natural
persons who are 18 years of age or older. A person who has been suspended or removed by the
Division under Chapter 718, or who is more than 90 days delinquent in the payment of regular
assessments Is not eligible for board membership. A person who has been convicted of any felony
in this state or in a United States District or Territorial Court, or who has been convicted of any
offense in another jurisdiction that would be considered a felony if committed in this state, is not
eligible for Board membership unless such felon's civil rights have been restored for a period of no
less than 5 years as of the date on which such person seeks election to the Board (provided.
however, that the validity of any Board action is not affected if it is later determined that a member
of the Board is ineligible for Board membership due to having been convicted of a felony). In a
Condominium Association of more than ten (10) units, coowners of a Unit may not serve as
members of the Board of directors at the same time, Directors may not vote at Board meetings by
proxy or by secret ballot,
4.2 Election of Directors. Election of Directors shall be held at the annual members' meeting, except
as herein provided to the contrary. Not less than 60 days before a scheduled election, the
Association shall mail, deHver, or electronically transmit, whether by separate association mailing
or included in another association mailing, delivery, or transmission, including regularly published
newsletters, to each Unit Owner entitled to a vote, a first notice of the date of the election along
with a certification form provided by the Division attesting that he or she has read and understands,
to the best of his or her ability, the governing documents of the Association and the provisions of
Chapter 718 and any applicable rules. Any Unit Owner or other eligible person desiring to be a
candidate for the Board shall give written notice to the Secretary of the Association not less than
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.4.
forty (40) days prior 10 the scheduled election. Together with the notice of meeting and agenda
sent in accordance with Section 3.4 above, the Association shall then, mail, deliver or electronically
transmit a second notice of the meeting, not less than fourteen (14) continuous days prior to the
date of the meeting, 10 all Unit Owners entitled to vote therein, together with a ballot which shall list
all candidates. Upon request of a candidate, the Association shall include an information sheet, no
larger than 8-1/2 inches by 11 inches fumished by the candidate, which must be furnished by the
candidate 10 the Association not less than thirty five (35) days before the election, to be included
with the mailing of the ballot along with the signed certification form provided for in this Subsection,
with the costs of mailing or detivery and copying to be borne by the Association. The Association is
not liable for the contents of the infonnation sheets prepared by the candidates, In order to reduce
costs, the Association may print or duplicate the infonnation sheets on both sides of the paper,
The election of direclors shall be by written ballot or voting machine. Proxies shall in no event be
used in electing the Board at general elections or 10 fill vacancies caused by resignation or
otherwise, provided, however, that limited proxies may be used to fill a vacancy resulting from the
recall of a director, in the manner provided by the rules of the Division. Elections shall be decided
by a plurality of those ballots and votes cast. There shall be no quorum requirement, however at
, least 20 percent of the eligible voters must cast a ballot in order to have a valid election of
members of the Board. There shall be no cumulative voting. No unit owner shall permit any other
person to vote his or her ballot, and any such ballots improperly cast shall be deemed invalid,
provided any Unit Owner who violates this provision may be fined by the Association in accordance
with Section 718,303, F.S.. A Unit Owner who needs assistance in casting the ballot for the
reasons stated in Section 101,051, F.S, may obtain assistance in casting the ballot. The regular
election shall occur on the date of the annual meeting, Notwithstanding anything contained herein
to the contrary, ~ and to the extent a vacancy occurs on the Board and/or additional Directors are
to be elected in accordance herewith, \he Board may, in its sole and absolute discretion, hold a
meeting to elect the Directors prior to the annual meeting.
Notwithstanding the provisions of this Section 4.2, an election is not required unless more
candidates file notices of intent to run than vacancies exist on the Board.
4.3 Vacancies and Removal.
(a) Except as to vacancies resulting from removal of Directors by members (as addressed in
subsection (b) below), vacancies in the Board of Directors occurring between annual
meetings of members shall be filled by a majority vote of \he remaining Directors at any
Board meeting (even if the remaining Directors constitute less than a quorum), with the
replacement Director serving the balance of the term of the vacating Board member,
provided that all vacancies in directorships to which Directors were appointed by the
Developer pursuant to the provisions of paragraph 4.15 hereof shall be filled by the
Developer.
(b) Subject to the provisions of Section 718.301, F.S., any Director elected by the members
(other than the Developer) may be recalled and removed with or without cause by
concurrence of a majority of the voting interests of the members at a special meeting of
members called for that purpose or by written agreement signed by a majority of all voting
interests. The vacancy in the Board of Directors so created shall be filled by the members
at a special meeting of the members called for such purpose, or by the Board of Directors,
in the case of removal by a written agreement unless said agreement also designates a
new Director to take the place of the one removed. A special meeting of the Unit Owners
to recall a member or members of the Board of administration may be called by 10
percent of the voting interests giving notice of the meeting as required for a meeting of
Unit Owners, and the notice shall state the purpose of the meeting. Electronic
transmission may not be used as a method of giving notice of a meeting in whole or in
part for this purpose. The conveyance of all Unils owned by a Director in the
Condominium (other than appointees of the Developer or Directors who were not Unit
Owners) shall constitute the resignation of such Director.
(c) Anything to the contrary herein notwithstanding, until a majority of the Directors are
elected by members other than the Developer of the Condominium, neither the fllSt
Directors of the Association, nor any Directors replacing them, nor any Directors named
by the Developer, shall be subject to removal by members other than the Developer. The
first Directors and Directors replacing them may be removed and replaced by the
Developer.
(d) If a vacancy on the Board of Directors results in the inability to obtain a quorum of
directors in accordance with these By-Laws, and the remaining Directors fail to fill the
vacancy by appointment of a director in accordance with applicable law, then any Owner
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may apply to the Circuit Court within whose jurisdiction the Condominium lies for the
appointment of a receiver to manage the affairs of the Association. At least thirty (30)
days prior to the petition seeking receivership, the form of notice set forth in Section
718.1124, F.S. must be provided by the Unn Owner to the Association by certified mail or
personal delivery, must be posted in a conspicuous place on the Condominium Property
and must be provided by the Unn Owner to every other Unit Owner of the Association by
certified mail or personal delivery. Notice by mail to a Unit OWner shall be sent to the
address used by the county property appraiser for notice to the Unit Owner, except that
where a Unit Owner's address is not publicly avaHable the notice shall be mailed to the
Unit. If, during such time, the Association fails to fill the vacancy(ies), the Unit Owner may
proceed with the petition. If a receiver is appointed, all Unit Owners shall be given written
notice of such appointment as provided in Section 718.127, F.S. If a receiver is
appointed, the Association shall be responsible for the salary of the receiver, court costs
and attomeys' fees. The receiver shall have all powers and duties of a duly constituted
Board of Directors, and shall serve until the Association fills the vacancy(ies) on the Board
sufficient to constitute a quorum in accordance with these By-Laws and the court relieves
the receiver of the appointment.
4.4 Term. Except as provided herein to the contrary, the term of each Director's service shall extend
until the next annual meeting of the members and shall expire at the annual meeting where the
member may stand for reelection. If and to the extent no person is Interested in or demonstrates
an intention to run for the position of a Board Member whose term has expired, such Board
Member whose term has expired may request their term be automatically reappointed pursuant to
the terms of Section 718.112(2)(d)1. Notwithstanding the foregoing, any Director designated by
the Developer shall serve at the pleasure of the Developer and may be removed and replaced by
the Developer at any time.
4,5 Oraanizational Meetina. The organizational meeting of newty-elected or appointed Directors shall
be held within ten (10) days of their election or appointment. The directors calling the
organizational meeting shall give at least three (3) days advance notice thereof, stating the time
and place oflhe meeting.
4,6 Meetinas. Meetings of the Board of Directors may be held at such time and place as shall be
determined, from time to time, by a majority of the Directors. Meetings of the Board of Directors
may be held by telephone conference, with those Directors attending by telephone counted toward
the quorum requirement, provided that a telephone speaker must be used so that the conversation
of those Directors attending by telephone may be heard by the Directors and any Unit Owners
attending such meeting in person, Notice of meetings shall be given to each Director, personally or
by mail, telephone or telegraph, and shall be transmitted at least three (3) days prior to the
meeting. Meetings of the Board of Directors and any Committee thereof at which a quorum of the
members of that Committee are present shall be open to all Unit Owners. Any Unit Owner may
tape record or videotape meetings of the Board, in accordance with the rules of the Division. The
right to attend such meetings includes the right to speak at such meetings with respect to all
designated agenda items. The Association may adopt reasonable rules governing the frequency,
duration and manner of Unn Owner statements. Adequate notice of such meetings. which notice
shall specifically incorporate an identification of agenda items, shall be posted conspicuously on
the Condominium Property at least forty-eight (48) continuous hours preceding the meeting, except
in the event of an emergency. If twenty percent (20%) of the voting interests petition the Board to
address an nem of business, the Board shall at its next regular Board meeting or at a special
meeting of the Board, but not later than 60 days after the receipt of petition, place the item on the
agenda. Any item not included on the notice may be taken up on an emergency basis by at least a
majority plus one of the members of the Board. Such emergency action shaU be noticed and
ratified at the next regular meeting of the Board. Notwithstanding the foregoing, written notice of
any meeting of the Board at which nonemergency special assessments, or at which amendment to
rules regarding unit use will be proposed, discussed or approved, shall be mailed, deUvered or
electronically transmitted to all Unit Owners and posted conspicuously on the Condominium
Property not less than fourteen (14) continuous days prior to the meeting. Evidence of compliance
with this fourteen (14) continuous day notice shall be made by an affidavit executed by the
Secretary of the Association and filed among the official records of the Association. The Board
shall adopt by rule, and give notice to Unit Owners of, a specific location on the Condominium
Property upon which aU notices of Board and/or Committee meetings shall be posted. In lieu of or
in addition to the physical posting of notice of any meeting of the Board on the Condominium
Property, the Association may, by reasonable rule, adopt a procedure for conspicuously posting
and 'repeatedly broadcasting the notice and the agenda on a closed-circun cable television system
serving the Association, if any. However, if broadcast notice Is used in lieu of a notice posted
: physically on the Condominium Property, the notice and agenda must be broadcast at least four
times every broadcast hour of each day that a posted notice is otherwise required. When broadcast
notice is provided, the notice and agenda must be broadcast in a manner and for a sufficient
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.6.
continuous length of time so as to allow an average reader to observe the notice and read and
comprehend the entire content of the notice and the agenda. Special meetings of the Directors
may be called by the President, and must be called by the President or Secretary at the written
request of one-third (113) of the Directors or where required by the Act. A Director or member of a
Committee of the Board of Directors may submit in writing his or her agreement or disagreement
with any action taken at a meeting that such individual did not attend. This agreement or
disagreement may not be used for purposes of creating a quorum. A Director of the Association
who abstains from voting on any action taken on any corporate matter shall be presumed to have
taken no position with regard to such action. A vote or abstention for each member present shall
be recorded in the minutes. Directors may not vote by proxy or by secret ballot at board meetings,
except that officers may be elected by secret ballot.
4.7 Waiver of Notice. Any Director may waive notice of a meeting before or after the meeting and that
waiver shall be deemed equivalent to the due receipt by said Director of notice. Attendance by any
Director at a meeting shall constitute a waiver of notice of such meeting, and a waiver of any and
all objections to the place of the meeting, to the time of the meeting or the manner in which it has
been called or convened, except when a Director states at the beginning of the meeting, or
prompUy upon arrival at the meeting, any objection to the transaction of affairs because the
meeting is not lawfully called or convened.
4,8 Quorum. A quorum at Directors' meetings shall consist of a majority of the entire Board of
Directors. The acts approved by a majority of those present at a meeting at which a quorum is
present shall constitute the acts of the Board of Directors, except when approval by a greater
number of Directors is specifically required by the Declaration, the Articles or these By-Laws.
4,9 Adiourned Meetinas. If, at any proposed meeting of the Board of Directors, there is less than a
quorum present, the majority of those present may adjoum the meeting from time to time until a
quorum is present, provided notice of such newly scheduled meeting Is given as required
hereunder. At any newly scheduled meeting, any business that might have been transacted at the
meeting as originally called may be transacted as long as notice of such business to be conducted
at the rescheduled meeting is given, if required (e.g., with respect to budget adoption),
4.10 Joinder in Meetina bv ADDroval of Minutes. The joinder of a Director in the action of a meeting by
signing and concurring in the minutes of that meeting shall constitute the approval of that Director
of the business conducted at the meeting, but such joinder shall not be used as a vote for or
against any particular action taken and shall not allow the applicable Director to be counted as
being present for purposes of quorum.
4,11 Presidina Officer. The presiding officer at the Directors' meetings shall be the President (who may,
however, designate any other Unit Owner to preside).
4.12 Order of Business. If a quorum has been attained, the order of business at Directors' meetings
shall be:
(a) Proof of due notice of meeting;
(b) Reading and disposal of any unapproved minutes;
(c) Reports of officers and committees;
(d) Election of officers;
(e) Unfinished business;
(n New business;
(g) Adjoumment.
Such order may be waived in whole or in part by direction of the presiding officer.
4,13 Minutes of Meetinas. The minutes of all meetings of the Board of Directors shall be kept in a book
available for inspection by Unit OWners, or their authorized representatives, and Board members at
any- reasonable time, The Association shall retain these minutes for a period of not less than
seven years.
4.14 Committees. The Board may by resolution also create Committees and appoint persons to such
Committees and vest in such Committees such powers and responsibUilies as the Board shall
deem advisable.
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4,15 Proviso. Notwithstanding anything to the contrary contained in this Section 4 or otherwise, the
Board shall consist of three directors during the period that the Developer is entitled to appoint a
majority of the Directors, as hereinafter provided. The Developer shall have the right to appoint all
of the members of the Board of Directors until Unit Owners other than the Developer own fifteen
percent (15%) or more of the Units in the Condominium. When Unit Owners other than the
Developer own fifteen percent (15%) or more of the Units in the Condominium that will be operated
ultimately by the Association, the Unit Owners other than the Developer shall be entitled to elect
not less than one-third (113) of the members of the Board of Directors. Upon the election of such
directo~s), the Developer shall forward to the Division of Florida Land Sales, Condominiums and
Mobile Homes the name and mailing address of the directo~s) elected. Unit Owners other than
the Developer are entitled to elect not less than a majority of the members of the Board of
Directors: (a) three years after fifty (50%) percent of the Un~s that will be operated ultimately by the
Association have been conveyed to purchasers; (b) three months after ninety (90%) percent of the
Units that will be operated ultimately by the Association have been conveyed to purchasers; (c)
when all of the Units that will be operated ultimately by the Association have been completed,
some of them have been conveyed to purchasers, and none of the others are being offered for sale
by the Developer in the ordinary course of business; (d) when some of the Unils have been
conveyed to purchasers, and none of the others are being constructed or offered for sale by the
Developer in the ordinary course of business; (e) when the Developer files a petition seeking
protection in bankruptcy; (~ when a receiver for the Developer is appointed by a circuit court and is
not discharged within 30 days after such appolntmen~ or (g) seven (7) years after recordation of
the Declaration, whichever occurs first. The Developer is entitled (but not obligated) to elect at
least one (1) member of the Board of Directors as long as the Developer holds for sale in the
ordinary course of business five percent (5%) of the Units that will be operated ultimately by the
Association.
The Developer may transfer control of the Association to Unit Owners other than the Developer
prior to such dates In its sole discretion by causing enough of its appointed Directors to resign,
whereupon it shall be the affinnative obligation of Unit Owners other than the Developer to elect
Directors and assume control of the Association. Provided at least sixty (60) days' notice of
Developer's decision to cause its appointees to resign is given to Un~ Owners, ne~her the
Developer, nor such appointees, shall be Dable in any manner in connection with such resignations
even if the Un~ Owners other than the Developer refuse or fail to assume control,
Within seventy-fIVe (75) days after the Unit Owners other than the Developer are entitled to elect a
member or members of the Board of Directors, or sooner if the Developer has elected to accelerate
such event as aforesaid, the Association shall call, and give not less than sixty (60) days' notice of
an election for the member or members of the Board of Directors, The notice may be given by any
Un~ Owner if the Association fails to do so,
At the time the Unit Owners other than the Developer elect a majority of the members of the Board
of Directors of the Association, the Developer shall relinquish control of the Association and such
Unit Owners shall accept control. At that time (except as to subparagraph (g), which may be ninety
(90) days thereafter) Developer shall deliver to the Association, at Developer's expense, all
property of the Unit Owners and of the Association held or controlled by the Developer, including,
but not limited to, the following items, if applicable to the Condominium:
(a) The original or a photocopy of the recorded Declaration of Condominium, and all
amendments thereto. If a photocopy is provided, the Developer must certify by affidavit
that it is a complete copy of the actual recorded Declaration,
(b) A certified copy of the Articles of Incorporation of the Association.
(c) A copy of the By-Laws of the Association.
(d) The minute book, including all minutes, and other books and records of the Association.
(e) Any rules and regulations which have been adopted.
(~ Resignations of resigning officers and Board members who were appointed by the
Developer.
(g) The financial records, including financial statements of the association, and source
documents from the incorporation of the Association through the date of the turnover.
The records shall be aud~ed for the period from the incorporation of the Association or
from the period covered by the last aud~, if applicable, by an independent certified public
accountant. All financial statements shall be prepared in accordance with generally
accepted accounting principles and shall be aud~ed in accordance with generally
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accepted auditing standards as prescribed by the Florida Board of Accountancy. The
accountant performing the audit shall examine to the extent necessary supporting
documents and records, including the cash disbursements and related paid invoices to
determine if expenditures were for Association purposes, and billings, cash receipts and
related records to detennine that the Developer was charged and paid the proper
amounts of Assessments.
(h) Association funds or the control thereof.
(i) All tangible personal property that is the property of the Association or is or was
represented by the Developer to be part of the Common Bements or is ostensibly part of
the Common Elements, and an inventory of such property,
OJ A copy of the plans and specifICations utilized in the construction or remodeling of
Improvements and the supplying of equipment, and for the construction and installation of
all mechanical components serving the Improvements and the Condominium Property,
with a certificate, in affidavit form, of an offICer of the Developer or an architect or engineer
authorized to practice in Florida, that such plans and specifications represent to the best
of their knoWledge and belief, the actual plans and specifications utilized in the
construction and improvement of the Condominium Property and the construction and
installation of the mechanical components serving the Improvements and the
Condominium Property.
(k) A list of the names and addresses of all contractors, subcontractors and suppliers, of
which Developer had knowledge at any time in the development of the Condominium.
utilized in the construction or remodeling of the improvements and the landscaping of the
Condominium and/or Association Property.
(I) Insurance policies.
(m) Copies of any Certificates of Occupancy which may have been issued for the
Condominium Property.
(n) Any other permits issued by govemmental bodies applicable to the Condominium
Property in force or issued within one (1) year prior to the date the Unit Owners take
control of the Association,
(0) All written warranties of contractors, subcontractors, suppliers and manufacturers, if any,
thai are still effective.
(p) A roster of Unit Owners and their addresses and telephone numbers, if known, as shown
on the Developer's records.
(q) Leases of the Common Elements and other leases to which the Association is a party, if
applicable.
(r) Employment contracts or service contracts in which the Association is one of the
contracting parties, or service contracts in which the Association or Unit Owners have an
obligation or responsibility, directly or indirectly, to pay some or all of the fee or charge of
the person or persons performing the service.
(s) All other contracts to which the Association is a party.
(I) A report included in the offICial records, under seal of an architect or engineer authorized
to practice in Florida, attesting to required maintenance, useful life, and replacement costs
of the following applicable common elements comprising a tumover inspection report:
1. Roof
2. Structure
3. Fireproofing and fire protection systems,
4. Elevators
5. Heating and cooling systems
6, Plumbing
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7. Electrical systems
8. Swimming pool or spa and equipment
9. Seawalls
10. Pavement and parking areas
11. Drainage Systems
12, Painting
13. lITigation systems
5. Authority of the Board.
5.1 Powers and Duties. The Board of Directors shaD have the powers and duties necessary for the
administration of the affairs of the Condominium and may take all acts, through the proper offICers
of the Association, in executing such powers, except such acts which by law, the Declaration, the
Articles or these By-Laws may not be delegated to the Board of Directors by the Unit Owners.
Such powers and duties of the Board of Directors shall Include, without limitation (except as limned
elsewhere herein), the following:
(a) Operating and maintaining all Common Elements and the Association Property.
(b) Determining the expenses required for the operation of the Association and the
Condominium. '
(c) Employing and dismissing the personnel necessary for the maintenance and operation of
the Common Elements and the Association Property.
(d) Adopting and amending rules and regulations conceming the details of the oparation and
use of the Condomilium and Association Property, subject to a right of the Unit Owners to
overrule the Board as provided in Section 16 hereof.
(e) Maintaining bank accounts on behalf of the Association and designating the signatories
required therefor.
(Q Purchasing, leasing or otherwise acquiring title to, or an interest in, property in the name
of the Association, or its designee, for the use and benefit of its members, The power to
acquire personal property shall be exercised by the Board and the power to acquire real
property shall be exercised as described herein and in the Declaration.
(g) Purchasing, leasing or otherwise acquiring Units or other property, including, without
limitation, Units at foreclosure or other judicial sales, all in the name of the Association, or
its designee.
(h) Selling, leasing, mortgaging or otherwise dealing wnh Units acquired, and subleasing
Units leased, by the Association, or its designee.
(i) Organizing corporations and appointing persons to act as designees of the Association in
acquiring tille to or leasing Units or other property.
OJ Obtaining and reviewing insurance for the Condominium and Association Property.
(k) Making repairs, additions and improvements to, or alterations of, Condominium Property
and AssocIation Property, and repairs to and restoration of Condominium and Association
Property, in accordance with the provisions of the Declaration after damage or destruction
by fire or other casualty, or as a result of condemnation or eminent domain proceedings or
otherwise.
(I) Enforcing obligations of the Unit Owners, allocating profits and expenses and taking such
other actions as shall be deemed necessary and proper for the sound management of the
Condominium,
(m) Levying fines against appropriate Unn Owners for violations of the rules and regulations
established by the Association to govem the conduct of such Unit Owners. No fine shall
be levied except after giving reasonable notice and opportunity for a hearing to the
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(n)
affected Unit Owner and, if applicable, his tenant, licensee or invitee. The hearing must
be held before a committee of other Unit Owners. If the committee does not agree with
the fine, the fine may not be levied. No fine may exceed $100.00 per violation, however, a
fine may be levied on the basis 01 each day of a continuing violation with a single notice
and opportunity for hearing, provided however. that no such fine shall in the aggregate
exceed $1,000,00. No fine shall become a lien upon a Unit.
Purchasing or leasing Units lor use by resident superintendents and other similar persons
or for the general use and enjoyment of the Unit Owners.
Borrowing money on behalf of the Association or the Condominium when required in
connection with the operation, care, upkeep and maintenance of Common Elements (if
the need for the funds is unanticipated) or the acquisition of real property, and granting
mortgages on and/or security interests in Association owned property; provided. however,
that the consent of the Owners of at least two-thirds (213rds) of the Units represented at a
meeting at which a quorum has been attained in accordance with the provisions of these
By-laws shall be required for the borrowing of any sum which would cause the total
outstanding indebtedness of the Association to exceed $250,000.00. II any sum
borrowed by the Board of Directors on behalf of the Condominium pursuant to the
authority contained in this subparagraph 5.1(0} is not repaid by the Association, a Unit
Owner who pays to the creditor such portion thereof as his interest in his Common
Elements bears to the interest of all the Unit Owners in the Common Elements shall be
entitled to obtain from the creditor a release of any judgment or other lien which said
creditor shall have filed or shall have the right to file against. or which will affect such
Owner's Unit Notwithstanding the foregoing, the restrictions on borrowing contained in
this subparagraph 5.1 (o) shall not apply if such indebtedness is entered into for the
purpose of financing insurance premiums, which action may be undertaken solely by the
Board of Directors, without requiring a vote of the Unit Owners,
Subject to the provisions of Section 5.2 below, contracting for the management and
maintenance of the Condominium and Association Property and authorizing a
management agent (who may be an affiliate of the Developer) to assist the Association in
carrying out its powers and duties by performing such functions as the submission of
proposals, collection of Assessments, preparation of records, enforcement of rules and
maintenance, repair, and replacement of the Common Elements and Association Property
with such funds as shall be made available by the Association for such purposes. The
Association and its officers shall, however, retain at all times' the powers and duties
granted by the Declaration, the Articles, these By-laws and the Act, including, but not
limited to, the making of Assessments. promulgation of rules and execution of contracts
on behalf of the Association.
(a)
(p)
(q)
At its discretion, but within the parameters of the Act, authorizing Unit Owners or other
persons to use portions of the Common Elements or Association Property for private
parties and gatherings and imposing reasonable charges for such private use.
Executing all documents or consents, on behalf of all Unit Owners (and their mortgagees),
required by all govemmental and/or quasi-govemmentaJ agencies in connection with land
use and development matters (including, without limitation, plats, waivers of plat, unities of
title, covenants in lieu thereof, etc.), and in that regard, each Owner, by acceptance of the
deed to such Owner's Unit, and each mortgagee of a Unit Owner by acceptance of a lien
on said Unit, appoints and designates the President of the Association as such Owner's
agent and attomey-in-fact to execute any and all such documents or consents,
(r)
(s)
(t)
Responding to Unit Owner inquiries in accordance with Section 718.112(2)(a)2, F .S.
Exercising (i) all powers specifICally set forth in the Declaration, the Articles, these By-
Laws and in the Act, (ii) all powers incidental thereto, and (ii1) all other powers of a Florida
corporation not for profit.
Those certain emergency powers granted pursuant to Section 718.1265, F.S.
(u)
5.2 Contracts. Any contract which is not to be fully perfo/ll1ed within one (1) year from the making
thereof, for the purchase, lease or renting of materials or equipment to be used by the Association
in accomplishing its purposes, and all contracts for the provision of services, shall be in writing.
Where a contract for purchase, lease or renting materials or equipment, or for the provision of
services, reqUires payment by the Association on behalf of the Condominium in the aggregate
exceeding five percent (5%) of the Iotal annual budget of the Association (including reserves), the
Association shall obtain competitive bids for the materials, equipment or services, Nothing
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6. Officers.
contained herein shall be construed to require the Association to accept the lowest bid.
Notwithstanding the foregoing, contracts With employees of the Association and contracts for
attomey, accountant, architect, community association manager, engineering and landscape
arcMect services shall not be subject to the provisions hereof. Further, nothing contained herein is
intended to limit the ability of the Association to obtain needed products and services in an
emergency; nor shall the provisions hereof apply if the business entity with which the Association
desires to contract is the only source of supply within the County.
Notwithstanding anything herein to the contrary, as to any contract or other transaction between an
Association and one or more of its directors or any other corporation, finn, association, or entity in
which one or more of its directors are directors or officers or are financially interested, the
Association shall comply with the requirements of Section 617,0832, F.S, and Section 718.3026,
F.S.
6.1
'Executive Officers. The executive officers of the Association shan be a President, a Vice-
Presiden~ a Treasurer and a Secretary (none of whom need be Directors), all of whom shall be
elected by the Board of Directors and who may be peremptorily removed at any meeting by
concurrence of a majority of all of the Directors. A person may hold more than one office, except
that the President may not also be the Secretary. No person shall sign an instrument or pertonn
an act in the capacity of more than one offICe. The Board of Directors from time to time shall elect
such other officers and designate their powers and duties as the Board shall deem necessary or
appropriate to manage the affairs of the Association. Officers, other than designees of the
Developer, must be Unit Owners (or authorized representatives of corporate/partnership/trust Unit
Owners).
President. The President shall be the chief executive officer of the Association, He shall have all
of the powers and duties that are usually vested in the office of president of an association.
Vice-President. The VIce-President shall exercise the powers and pertoim the duties of the
President in the absence or disability of the President. He also shall assist the President and
exercise such other powers and pertonn such other duties as are incident to the office of the vice
president of an association and as may be required liy the Directors or the President.
6.2
6.3
6.4
Secretary. The Secretary shall keep the minutes of all proceedings of the Directors and the
members. The Secretary shall attend to the giving of all notices to the members and Directors and
other notices required by law. The Secretary shall have custody of the seal of the Association and
shall affix it to instruments requiring the seal when duly signed. The Secretary shall keep the
records of the Association, except those of the Treasurer, and shall perfonn all other duties
incident to the office of the secretary of an association and as may be required by the Directors or
the President.
Treasurer. The Treasurer shall have custody of all property of the Association, including funds,
securities and evidences of indebtedness. The Treasurer shall keep books of account for the
Association in accordance with good accounting practices, which, together with substantiating
papers, shall be made available to the Board of Directors for examination at reasonable times. The
Treasurer shall subm~ a treasure(s report to the Board of Directors at reasonable intervals and
shall pertonn all other duties incident to the offICe of treasurer and as may be required by the
Directors or the President. All monies and other valuable effects shall be kept for the benefit of the
Association in such depositories as may be designated by a majority of the Board of Directors.
7. Fiduciary Dutv. The officers and directors of the Association, as well as any manager employed by the
Association, have a fiduciary relationship to the Unit Owners. No officer, director or manager shall solicit,
offer to accept, or accept any thing or service of value for which consideration has not been provided for his
own benefit or that of his immediate famUy, from any person providing or proposing to provide goods or
services to the Association. Any such offICer, director or manager who knowingly so solicits, offers to accept
or accepts any thing or service of value shall, in addition to all other rights and remedies of the Association
and Unit Owners, be subject to a civil penalty In accordance with the Act. Notwithstanding the foregoing,
this paragraph shall not prohibit an officer, director or manager from accepting services or nems received in
connection With trade fairs or education programs,
6,5
An offICer, director, or agent shall discharge his or her duties in good faith, with the care an ordinarily
prudent person in a like position would exercise under similar circumstances, and in a manner he or she
reasonably believes to be in the Interests of the association, An offICer, director, or agent shall be liable for
monetary damages as provided in Section 617.0834, F.S. jf such offICer, director, or agent breached or
failed to perfonn his or her duties and the breach of, or failure to pertonn, his or her duties constitutes a
violation of criminal law as provided in Section 617.0834, F.S; constitutes a transaction from which the
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officer or director derived an improper personal benefit, either directly or indirectly; or constitutes
recklessness or an act or omission that was in bad fa~h, with malicious purpose, or in a manner exhibiting
wanton and willful disregard of human rights, safety, or property.
6, Director or Officer Delinauencies. Any Director or officer more than 90 days delinquent in the payment of
regular assessments shall be deemed to have abandoned the office, creating a vacancy in the office to be
filled according to law.
9, Director or Officer Offenses. Any Director or Officer charged with a felony theft or embezzlement offense
involving the Association's funds or property shall be removed from office, creating a vacancy in the offIce 10
be filled according to law. While such Director or Officer has such criminal charge pending, he or she may
not be appointed or elected to a position as a Director or Officer, However, should the charges be resolved
without a finding of guilt, Ihe Director or officer shall be reinstated for the remainder of his or her lerm,
10. Compensation. Neither Directors nor officers shall receive compensation for their services as such, but this
provision shall not preclude the Board of Direclors from employing a Director or officer as an employee of
the Association, nor preclude contracting with a Director or officer for the management of the Condominium
or for any other service to be supplied by such Director or offICer. Directors and officers shall be
compensaled for all actual and proper out of pocket expenses relating to the proper discharge of their
respective duties.
11, Resianations. Any Director or officer may resign his or her post at any time by written resignation, delivered
10 the President or Secretary, which shall take effect upon its receipt unless a later dale is specified in the
resignation, in which event the resignation shall be effective from such date unless withdrawn, The
acceptance of a resignation shall not be required to make it effective,
12. Fiscal Manaoement. The provisions for fiscal management of the Association set forth in the Declaration
and Articles Shall be supplemented by the foUowing provisions:
12.1 Budaet.
(a) Adoption bv Board: Ilems. The Board of Directors shall from lime to time, and at least
annually, prepare a budget for all Condominiums govemed and operated by the
Association (which shall detail all accounts and items of expense and contain at least all
items set forth in Section 718.504(21) of the Act, if applicable), determine the amount of
Assessments payable by the Unit Owners to meet the expenses of such Condominium(s)
and allocate and assess such expenses among the Unit Owners in accordance with the
provisions of the Declaration. In addition, if the Association maintains limited common
elements with the cost to be shared only by those entitied to use the limited common
elements, the budget or a schedule attached thereto shall show amounts budgeted
therefor. In addition to annual operating expenses, the budget shall include reserve
accounts for capital expenditures and deferred maintenance (to the extent ,required by
law). These accounts shall include. but not be limited 10, roof replacement, building
painting and pavement resurfacing regardless of the amount of deferred maintenance
expense or replacement cost, and for any other item for which the deferred maintenance
expense or replacement cost exceeds $10,000.00. The amount of reserves shall be
computed by means of a fannula which is based upon the estimated remaining useful life
and the estimated replacement cost of each reserve item. The Association may adjust
replacement and reserve assessments annually to take into account any changes in
estimates or extension of the useful life of a reserve item caused by deferred
maintenance. Reserves shall not be required if the members of the Association have, by
a majority vote at a duly called meeting of members, determined for a specific fiscal year
to provide no reserves or reserves less adequate than required hereby. Prior to transfer
of control of the Association to Unit Owners other than the Developer, the Developer may
vote to waive reserves or reduce the funding of reserves for the first two (2) fiscal years of
operalion of the Association, beginning with the fiscal year in which the Declaration is
recorded, with the vote taken each fIScal year and to be effective for only one aMual
budget, after which time and until transfer of control of the Association to Unit Owners
other than the Developer, reserves may only be waived or reduced upon the vote of a
majority of all non-Developer voting interests voting in person or by limited proxy at a duly
called meeting of the Association. Following transfer of control of the Association to Unit
Owners other than the Developer. the Developer may vote its voting interest to waive or
reduce the funding of reserves. If a meeting of Unit Owners has been called to determine
to provide no reserves or reserves less adequate than required, and such result is not
allalned or a quorum is not attained, the reserves, as included in the budget. shall go into
effect. Reserve funds and any interest accruing thereon shall remain in the reserve
account or accounts, and shall be used only for authorized reserve expenditures, unless
their use for any other purposes is approved in advance by a majority vote at a duly called
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meeting of the Association. Prior to transfer of control of the Association to Unit Owners
other than the Developer, the Association shall not vote to use reserves for purposes
other than that for which they were intended without the approval of a majority of all non-
Developer voting interests, voting in person or by limited proxy at a duly called meeting of
the Association.
The only voting interests which are eligible to vote on Questions that involve waiving or
reducing the funding of reserves. or using existing reserve funds for purposes other than
purposes for which the reserves were intended. are the voting interests of the Units
subject to assessment to fund the reserves in Question. Proxy questions relating to
waiving or reducing the funding of reserves or using existing reserve funds for purposes
other than purposes for which the reserves were intended shall contain the following
statement in capitalized, bold Jeller in a font size larger than any other used on the face of
the proxy ballot: WAIVING OF RESERVES, IN WHOLE OR IN PART. OR ALLOWING
ALTERNATIVE USES OF EXISTING RESERVES MAY RESULT IN UNIT OWNER
LIABILITY FOR PAYMENT OF UNANTICIPATED SPECIAL ASSESSMENTS
REGARDING THOSE ITEMS,
The adoption of a budget for the Condominium shall comply with the requirements
hereinafter set forth:
(i) Notice of MeetillQ. A copy of the proposed budget of estimated revenues and
expenses shall be hand delivered, mailed or electronically transmitted to each
Unit Owner (at the address last fumished to the Association) not less than
fourteen (14) days prior to the meeting of the Board of Directors at which the
budget will be considered, together with a notice of that meeting indicating the
time and place of such meeting. An officer or manager of the Association, or
other person providing notice of such meeting, shall execute an affidavit
evidencing compliance with such notice requirement and such affidavit shall be
filed among the official records of the Association.
(ii) Special Membership Meetina. If the Board of Directors adopts in any fiscal year
an annual budget which requires assessments against Unit Owners which
exceed one hundred fifteen percent (115%) of such Assessments for the
preceding fiscal year, the Board of Directors shall conduct a special meeting of
the Unit Owners to consider a substitute budget if the Board of Directors
receives, within twenty-one (21) days following the adoption of the annual
budget, a written request for a special meeting from at least ten percent (10%) of
all voting interests. The special meeting shall be conducted within sixty (60)
days following the adoption of the annual budget. At least fourteen (14) days
prior to such special meeling, the Board of Directors shall hand deliver to each
Unit Owner, or mail to each Unit Owner at the address last furnished to the
Association, a IlQtice of the meeting. An officer or managerofthe Association, or
other person providing notice of such meeting, shall execute an affidavit
evidencing compliance with this notice requirement and such affidavit shall be
filed among the offICial records of the Association. Unit Owners may consider
and adopt a substitute budget at the special meeting, A substitute budget is
adopted if approved by a majority of all voting interests. If there is not a quorum
at the special meeting or a substitute budget is not adopted, the annual budget
previously adopted by the Board of Directors shall take effect as scheduled.
(iii) Detennination of Budaet Amount. Any de!ennination of whether assessments
exceed one hundred fifteen percent (115%) of assessments for the preceding
fiscal year shall exclude any authorized provision for reasonable reserves for
repair or replacement of the Condominium Property, anticipated expenses of the
Association which the Board of Directors does not expect to be incurred on a
regular or annual basis, or assessments for bellennents to the Condominium
Property.
(iv) Proviso. As long as the Developer is in control of the Board of Directors of the
Association. the Board shall not impose Assessments for a year greater than one
hundred fifteen percent (115%) of the prior fiscal year's Assessments, as herein
defined, withoutlhe approval of a majority of all voting interests.
(b) Adoption bv Membership, In the event lhatthe Board of Directors shall be unable to
adopt a budget for a fiscal year in accordance with the requirements of Subsection 12,1
above, the Board of Directors may call a special meeting of Unit Owners for the purpose
of considering and adopting such budget, which meeting shall be called and held in the
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manner provided for such special meetings in said subsection.
12,2 Assessments. Assessments against Unit Owners for their share of the nems of the budget shall
be made for the applicable fiscal year annually at least twenty (20) days preceding the year for
which the Assessments are made. Such Assessments shall be due in equal installments,
payable in advance on the first day of each month (or each quarter at the election of the Board)
of the year for which the Assessments are made. If annual Assessments are not made as
required, Assessments shall be presumed to have been made in the amount of the last prior
Assessments, and monthly (or quarterly) installments on such Assessments shall be due upon
each installment payment date until changed by amended Assessments. In the event the annual
Assessments prove to be insufficient, the budget and Assessments may be amended at any time
by the Board of Directors, subject to the provisions of Section 12.1 hereof, if applicable, Unpaid
Assessments for the remaining portion of the fiscal year for which amended Assessments are
made shall be payable in as many equal installments as there are full months (or quarters) of the
fiscal year left as of the date of such amended Assessments, each such monthly (or quarterly)
installment to be paid on the first day of the month (or quarter), commencing the first day of the
next ensuing month (or quarter), If only a partial month (or quarter) remains, the amended
Assessments shall be paid with the next regular inslallment in the following year, unless
otherwise directed by the Board in its resolution.
12.3 Soecial Assessments and Assessments for Caoital lmorovements, Special Assessments and
Capital Improvement Assessments (as defined in the Declaration) shall be levied as provided in
the Declaration and shall be paid in such manner as the Board of Directors of the Association
may require in the notice of such Assessments. The funds collected pursuant to a Special
Assessment shall be used only for the specific purpose or purposes set forth in the notice of
adoption of same. The specifIC purpose or purposes of any special assessment, including any
contingent special assessment levied in conjunction with the purchase of an insurance pOlicy
authorized by Section 718.111(11), Florida Statutes, approved in accordance with the
condominium documents, shall be set forth in a written notice of such assessment sent or
delivered to each Unit Owner. However, upon completion of such specific purpose or purposes,
any excess funds will be considered Common Surplus, and may, at the discretion of the Board,
enher be retumed to the Unn Owners or applied as a credit towards future assessments.
12.4 Deoositorv. The depository of the Association shall be such bank or banks in the State of
Florida, which bank or banks must be insured by the FDIC, as shall be designated from time to
time by the Directors and in which the monies of the Association shall be deposited. Withdrawal
of monies from those accounts shall be made only by checks signed by such person or persons
as are authorized by the Directors. All sums collected by the Association from Assessments or
otherwise may be commingled in a single fund or divided into more than one fund, as determined
by a majority of the Board of Directors. In addition, a separate reserve account should be
estabUshed for the Association in such a depository for monies specifICally designated as
reserves for capital expenditures and/or deferred maintenance. Reserve and operating funds of
the Association shall not be commingled unless combined for investment purposes, provided that
the funds so commingled shall be accounted for separately and the combined account balance of
such commingled funds may not, at any time, be less than the amount identified as reserve funds
in the combined account.
12,5 Acceleration of Installments Uoon Default. If a UnU Owner shall be in default in the payment of
an installment upon his Assessments, the Board of Directors or its agent may accelerate the
balance of the current budget years' Assessments upon thirty (30) days' prior written notice to the
Unit Owner and the filing of a claim of lien, and the then unpaid balance of the current budget
years' Assessments shall be due upon the date stated in the nolice, but not less than fIVe (5)
days after delivery olthe notice to the Unit Owner, or not less than ten (10) days after the mailing
of such notice to him by certified mail, whichever shall first occur.
12,6 Fidelitv Insurance or Fidelitv Bonds. The Association shall obtain and maintain adequate
insurance or fidelity bonding of all persons who control or disburse Association funds, which shall
include, without limitation, those individuals authorized to sign checks on behalf of the
Association and the president, secretary and treasurer of the Association. The insurance policy
or fidelity bond shall be in such amount as shall be detennined by a majority of the Board, but
must be sufficient to cover the maximum funds that will be in the custody of the Association or its
management agent at anyone time. The premiums on such bonds and/or insurance shall be
paid by the Association as a Common Expense.
12.7 Accountina Records and ReDOrts. The Association shall maintain accounting records in the
State, according to accounting practices normally used by similar associations. The records shall
be open to inspection by Unit Owners Dr their authorized representatives at reasonable times and
written summaries of them shall be supplied at least annually. The records shall include, but not
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be limited to, (a) a recol'l! of all receipts and expenditures, and (b) an account for each Unit
designating the name and current mailing address of the Unit (Nmer, the amount of
Assessments, the dates and amounts in which the Assessments come due, the amount paid
upon the account and the dates so paid, and the balance due, Written summaries of the records
described in clause (a) above, in the fonn and manner specified below, shall be supplied to each
Unit Owner annually,
Within ninety (90) days following the end of the fIScal year, the Association shall prepare and
complete, or contract for the preparation and completion of a financial report for the preceding
fiscal year (the 'Financial Report"). Within twenty-one (21) days after the final Financial Report is
completed by the Association, or received from a third party, but not later than one hundred
twenty (120) days following the end of the fiscal year, the Board shall mail, or furnish by personal
delivery, a copy of the Financial Report to each Unit Owner, or a notice that a copy of the
Financial Report will be mailed or hand delivered to the Unit Owner, without charge, upon receipt
of a written request from the Unit Owner.
The Financial Report shall be prepared in accordance with the rules adopted by the Division.
The type of Financial Report to be prepared shall, unless modified in the manner set forth below,
be based upon the Association's total annual revenues, as follows:
(a) REPORT OF CASH RECEIPTS AND EXPENDITURES - if the Association's revenues
are less than $100,000.00 or if the Association operates less than fifty (50) Units
(regardless of revenue) [or, if determined by the Board, the Association may prepare
any of the reports described in subsections (b), (c) or (d) below in lieu of the report
described in this section (a)).
(b) COMPILED FINANCIAL STATEMENTS - if the Association's revenues are aqualto or
greater than $100,000.00, but less than $200,000.00 [or, if determined by the Board,
the Association may prepare any of the reports described in subsections (c) or (d)
below in lieu of the report described in this section (b)J.
(c) REVIEWED FINANCIAL STATEMENTS - if the Association's revenues are equal to or
greater than $200,000.00, but less than $400,000.00 [or, if determined by the Board,
the Association may prepare the report described in subsection (d) below in lieu of the
report described in this section (c)).
(d) AUDITED FINANCIAL STATEMENTS - if the Association's revenues are equal to or
exceed $400,000.00.
A report of cash receipts and expenditures must disclose the amount of receipts by accounts and
receipt classifications and the amount of expenses by accounts and expense classifications,
including, but not limited to, the following, as applicable: costs for security, professional and
management fees and expenses, taxes, costs for recreation facilities, expenses for refuse
collection and utility services, expenses for lawn care, costs for building maintenance and repair,
insurance costs, administration and salary expenses, and reserves accumulated and expended
for capital expenditures, deferred maintenance, and any other category for which the association
maintains reserves.
If approved by a majority of the voting inlerests present at a properly called meeting of the
Association, the Association may prepare or cause to be prepared: (Q a report of cash receipts
and expenditures in lieu of a complied, reviewed, or audned financial statement; (ii) a report of
cash receipts and expenditures or a compiled flll8l1cial statement in lieu of a reviewed or audited
financial statement; or (iiQ a report of cash receipts and expenditures, a compiled financial
statement or a reViewed financial statement in lieu of an audited financial statement. Such
meeting and approval must occur prior to the end of the fiscal year and is effective only for the
fiscal year in which the vote is taken, except that the approval also may be effective for the
following fiscal year. Prior to the time that control of the Association has been turned over to Unit
Owners other than the Developer, all Unit Owners, Including the Developer, may vole on Issues
related to the preparation of financial reports for the first two (2) fISCal years of the Association's
operation. Thereafter, until control of the Association has been turned over to Unit Owners other
than the Developer, all Unit Owners except for the Developer may vote on such issues, Any
audit or review prepared under this Section shall be paid for by the Developer if done prior to
tumovBr of control of the Association, An Association may not waivB the financial reporting
requirement of this Section for more than three (3) consecutive years.
12,8 Application or Pavment. All payments made by a Unit Owner shall be applied as provided in
these By-Laws and In the Declaration.
By-Laws
.16-
12.9 Notice of Meetinas. NotK:e of any meeting which regular or special assessments against Unit
Owners are to be considered for any reason shall specifically state that assessments will be
considered and the nature, estimated cost, and description of the purposes of such assessments.
13. Roster of Unit Owners. Each Unit Owner shall file with the Association a copy of the deed or other
document showing his ownership. The Association shall maintain such information. The Association may
rely upon the accuracy of such infonnation for all purposes. until notified in. W1iting ,~f ch~es ~rel~ as
provided above. Only Unit Owners of record on the date notice of any meeting requlnng their vole IS given
shall be entitled to notice of and to vole at such meeting, unless prior to such meeting other Owners shall
produce adequate evidence, as provided above, of their interest and shall waive in W1iting notice of such
meeting,
14, Parliamentary Rules. Except when specifically or impliedly waived by the chairman of a meeting (either of
members or directors), Robert's Rules of Older (latest edition) shall govern the conduct of the Association
meetings when not in conflict with the Act, the Declaration, the Articles or these By-Laws; provided,
however. that a strict or technical reading of said Robert's Rules shall not be made so as to frustrate the will
of the' persons properly participating in said meeting.
15, Amendments. Except as may be provided in the Declaration to the contrary, these By-laws may be
amended in the following manner:
15,1 Notice. Notice of the subject matter of a proposed amendment shall be included In the notice of
a meeting at which a proposed amendment is to be considered.
15.2 Adootion, A resolution for the adoption of a Proposed amendment may be proposed either by a
majority of the Board of Directors or by not less than one-third (113) of the members of the
Association. The approval must be:
(a) by not Jess than a majority of the votes of all members of the Association represented
at a meeting at which a quorum has been attained and by not less than 66-213% of the
entire Board of Directors; or
(b) after control of the Association has been turned over to Unit Owners other than the
Developer, by not less than 80% of the votes of the members of the Association voting
in person or by proxy at a meeting at which a quorum has been attained.
15,3 Proviso. No amendment may be adopted which would eliminate. modify, prejudice. abridge or
otherwise adversely affect any rights, benefits, privileges or priorities granted or reserved to the
Developer or mortgagees of Units without the consent of said Developer and mortgagees in each
instance. No amendment shall be made that is in conflict with the Articles or Declaration, No
amendment to this Section shall be valid,
15.4 Execution and Recording. A copy of each amendment shall be attached to a certificate certifying
that the amendment Wa'l duly adopted a'l an amendment of these By-Laws. which certifICate
shall be executed by the President or Vice-President and attested by the Secretary or Assistant
Secretary of the Association with the fonnalities of a deed. or by the Developer alone if the
amendment has been adopted consistent with the provisions of the Declaration allowing such
action by the Developer. The amendment shall be effective when the certificate and a copy of
the amendment is recorded in the Public Records of the County with an identification on the first
page of the amendment of the Official Records Book and Page of said Public Records where the
Declaration is recorded.
16, Rules and Reaulations. Allached hereto as Schedule "An and made a part hereof are initial rules and
regulations concerning the use of portions of the Condominium and Association Property. The Board of
Directors may, from time to time. modify, amend or add to such rules and regulations, except that
subsequent to the dale control of the Board is tumed over by the Developer to Unit Owners other than the
Developer. Owners of a majority of the Units may overrule the Board with respect to any such modifications,
amendments or additions. Copies of such modified. amended or additional rules and regulations shall be
furnished by the Boald of Directors to each affected Unit Owner not less than thirty (30) days prior to the
effective date thereof. At no time may any rule or regulation be adopted which would prejudice the rights
reserved to the Developer.
17, Nonbindino Arbitration of Disoules. Prior 10 the institution of court litigation. the parties to a Dispute shall
petition the Division for nonbinding arbitration. The arbitration shall be conducted according 10 rules
promUlgated by the Division and before arbitrators employed by the Division. The filing of a petition for
arbitration shall toll the applicable statute of limitation for the applicable Dispute, until the arbitration
proceedings are completed. Any arbitration decision shall be presented to the parties in W1iting, and shall
be deemed final if a complaint for trial de !!QYQ is not filed in a court of competent jurisdiction in which the
By-laws
-17-
Condominium is located within thirty (30) days following the issuance of the arbitration decision. The
prevailing party in the arbitration proceeding shan be awarded the costs of the arbitration, and attomeys'
fees and costs incurred in connection with the proceedings. The party who files a complaint for a trial ~
novo shall be charged the other party's arbitration costs, courts costs and other reasonable costs, including,
without limitation, attorneys' fees, investigation expenses and expenses for expert or other testimony or
evidence incurred after the arbitration decision, if the judgment upon the trial de novo is not more favorable
than the arbitration decision. If the judgrnent is more favorable, the party who filed a complaint for trial ~
novo shall be awarded reasonable court costs and attomeys' fees. Any party to an arbitration proceeding
may enforce an arbitration award by filing a petition in a court of competent jurisdiction in which the
Condominium is located. A petition may not be granted unless the time for appeal by the filing of a
complaint for a trial de !!QYQ has expired. If a complaint for a trial de !!ID2 has been filed, a petition may not
be granted With respect to an arbitration award that has been stayed, If the petition is granted, the petitioner
may recover reasonable attorneys' fees and costs incurred in enforcing the arbitration award.
18. Written Inauiries. When a Unit Owner files a written inquiry by certified mail with the Board, the Board shall
respond in writing to the Unit Owner within thirty (30) days of receipt of such inquiry and more perticularly in
the manner set forth in Section 718.112(2)(a)2, Florida Statutes. The Association may, through its Board,
adopt reasonable rules and regulations regarding the frequency and manner of responding to Unit Owner
~~ '
19. Official Records. From the inception of the Association, the Association shall maintain for the condominium,
a copy of each of the following, where applicable, which shall constitute the official records of the
Association:
(a) The plans, permits, warranties, and other items provided by the Developer pursuant to
Section 718.301(4) of the Act;
(b) A photocopy of the recorded Declaration of Condominium and all amendments thereto;
(c) A photocopy of the recorded By~Laws of the Association and all amendments thereto;
(d) A certified copy of the Articles of Incorporation of the Association or other documents creating the
Association and all amendments thereto;
(e) A copy of the current Rules and Regulations of the Association;
(Q A book or books containing the minutes of all meetings of the Association, of the Board of
Directors, and of Unit Owners, which minutes shall be retained for a period of not less than 7
years;
(g) A current roster of all Unit Owners, their mailing addresses, Unit identifications, voting
certifications, and if known, telephone numbers. The Association shall also maintain the
electronic mailing addresses and the numbers designated by Unit Owners for receiving notices
sent by electronic transmission of those Unit Owners consenting to receive notice by electronic
transmission. The electronic mailing addresses and numbers provided by Unit Owners to receive
notice by electronic transmission shall be removed from Association records when consent to
receive notice by electronic transmission is revoked. However, the Association shall not be liable
for an erroneous disclosure of the electronic mail address or the number for receiving electronic
transmission of notices;
(h) All current insurance policies of the Association and of all Condominiums operated by the
Association;
(i) A current copy of any management agreement, lease, or other contract to which the Association
is a party or under which the Association or the Unit OWners have an obligation or responsibility;
m Bills of Sale or transfer for all property owned by the Association;
(k) Accounting records for the Association and the accounting records for the Condominium, All
accounting records shall be maintained for a period of not less than 7 years. Any person who
knowingly or intentionally defaces or destroys accounting records required to be maintained by
Chapter 718, F,S. is personaUy subject to civO penalty pursuant to Section 71B.501(1)(d), The
accounting records shall include, but not be limited to:
(i) Accurate, itemized, and detailed records for all receipts and expenditures,
(ii) A current account and a monthly, bimonthly, or quarterly staternent of the account for
each Unit designating the name of the Unit OWner, the due date and amount of each
Assessment, the amount paid upon the account, and the balance due,
By-Laws
-18-
(iii)
All audits, reviews, accounting statements. and financial reports of the Association or
Condominium.
(iv)
All contracts for work to be performed. Bids for work to be performed shall also be
considered official records and shall be maintained for a period of 1 year.
Ballots, sign-in sheets, voting proxies and all other papers relating to elections which shall be
maintained for a period of 1 year from the date of the meeting to which the document relates;
(\)
(m)
(n)
All rental records where the Association is acting as agent for the rental of Units;
A copy of the current Question and Answer Sheet, in the fonn promulgated by the Division, which
shall be updated annually;
All other records of the Association not specifically listed above which are related to the operation
of the Association; and
(0)
(p)
A copy ofthe inspection report as provided for in Section 718,301(4)(p), F.S.
The official records of the Association shall be maintained within the State for at least seven (7) years. The
records of the Association shall be made available to a Unit Owner within 45 miles of the Condominium
Property or within the County in which the Condominium Is located. The official records of the Association
shall be open to inspection by any Association member or the authorized representative of such member
and shall be made available to a Unit Owner within five (5) working days after receipt of a written request by
the Board or its designee. The right to inspect the records includes the right to make or obtain copies, at a
reasonable expense, if any, of the Association member. The Association may adopt reasonable rules
regarding the time, location, notice and manner of record inspections and copying, The failure of an
Association to provide official records to a Unit Owner or his authorized representative within ten (10)
working days after receipt of a written request therefor shall create a rebuttable presumption that the
Association willfully failed to comply with this paragraph. Failure to pennit inspection of the AssOCiation
records as provided herein entitles any person prevailing in an enforcement action to recover reasonable
attomeys' fees from the person in control of the records who, directly or indirectly, knowingly denies access
to the records for inspection. Any person who knowingly or intentionally defaceS Of destroys accounting
records required to be maintained by Chapter 718., F .S., is personally subject to civil penalty pursuant to
section 718.501(1)(d),F.S. The Association shall maintain on the Condominium Property an adequate
number of copies of the Declaration, Articles, By-Laws and rules, and all amendments to the foregoing, as
well as the Question and Answer Sheet and year-end financial infonnation required by the Act, to ensure
their availability to Unit OWners and prospective purchasers. The Association may charge its actual costs
for preparing and fumishing these documents to those persons requesting same. Notwithstanding the
provisions of this Section 19, the following records shall not be accessible to Unit Owners:
(i) Any record protected by the lawyer-client privilege as described in Section 90.502, Florida
Statutes, and any record protected by the work-product privilege including any record prepared by
an Association attomey or prepared at the attomey's express direction, which reflects a mental
impression, conclusion, litigation strategy, or legal theory of the attorney or the Association, and
which was prepared exclusively for civil or criminal litigation or for adversarial administrative
proceedings, or which was prepared in anticipation or imminent civil or criminal litigation or
imminent adversarial administrative proceedings until the conclusion of the litigation or adversarial
administrative proceedings,
(ii) Infonnation obtained by an Association in connection with the approval of the lease, sale or other
transfer of a Unit
(iii) Medical records of Unit Owners.
(iv) Social security numbers, driver's license numbers, credit card numbers, and other personal
identifying infonnation of any person,
20, Condominium Buildina Insoection. At least every five (5) years, the Board shall have the Condominium
Building inspected to provide a report under seal of an architect or engineer authorized to practice in this
State attesting to required maintenance, useful life, and replacement costs of the Common Elements. An
Association may waive this requirement if a vote for waiver is approved by a majority of the voting interests
present at a properly called meeting of the Association, Such meeting and approval must occur prior to the
end of the five (5) year period and is effective only for that 5-year period.
21, Certificate of Comoliance, A certificate of compliance from a licensed electrical contractor or electrician may
be accepted by the Association's Board as evidence of compliance of the Units to the applicable
condominium fire and life safety code.
By-Laws
.19-
1. ProvIsIon rA InfarmaIIoR to PurchaIllI8 or U8nhc1JdeI8. The AlsociBIion or ill dlOIlad agent
shall noI be ~ to pn:Mde . pR)lIpICI\1t purcIIIIer or IIenhokler 1IIllh InfomlIIioR 8bouI1Ile
CclnlIomIMJm or th8 As8oGl8lIoIl chr than ~1IarmIIIon or doclInera IIqUInId by lie kJ. to be
JIl8lIe IMIIabIe or dIscIoIed. The A8IocIaIIan or Is 8UItaIztd aged sh8Il be enIIIIlId to clwge a
IetIIOlllIIlIt iN! to Ih8 pnlIIIllClIve ~r. 1Ienhc*Ier. or 1Ile ClIl8IIt Urit Olnr b-1Is lime In
provlclng good falVl MSponlIlIS lD I8qUIIlS b- InIclnnIIon by or on behalf of . papecIIve
plIChaBer or 1enhoIder, olher than lhIlllqli8d by law, pmIded that such fee shllII noI exceed
$160.00 pkJs Ihe Rl8IOI'llIbIe cost rA ~ aOO lIlY ~ fees irm'red by tle
AssocIatIan In COIVIflClIon wilh lie Assocl8Iion'I JeBpllIIlIIl.
2. I=IIImmIc TIBIlSIllIssIon. For pwposes hereof, "eIectJonlc 1InmIsslon" IIlllIIIS any fom1 of
comllllnaaon. not dhclIy \nvoIVIng" phyItaI trnnissIon or.... of peper, which CI8Iles
a reconIltI8l may be 18laIned, retriMd. and Jeviewed by a ~ 1hereaf and which may be
dhctIy repRllIuced In I comprehln8lble and I8gIlIe paper ilml by 8UCh I8Cipient tIJoUgh an
auIDmaIBd pIOC88lI. ExIImpIes rA eIIcIronIe QlIlIIllls1ilon 1nckJde. but 118 nollmlled to. llIlegJ8ms,
fac8lmIe tansmI8sions rA imIIges. arwl text thalli ll8Ill via ~ mall between compul8l'S.
NotY.ihIlaIdng the pIOVIIIon b- eIecIronIc tJansrAIs8IDn of noIIcas by the AssocI8IIon, 11I1II may
be only be I8llt to \Alit Owners that consent to I8C8IIt of AssocIaIlon nolIces by e/edIOnlc
lInIrasIon (n only b' long as .uch IXlIlSIIlt I'8IIlIlIlS In eIIct). FIIlher. In no event may
eleclnlnlc iansmlsslon be _as a method of _ nolIce of a ~ called In IIhaIe or In pill
reganflll9 1le18C81 of a DiltQ)r.
3. ConstructIon. WhefMr the c:ontexlso pennIs. the ... 8h8II incUIe I1e plural, !he pllrallhal
Include 1he sInguB', IlIld the lII8 of any gender IIWI be deemed to Include II genders. To 1he
llldent not olhIlWIse pIOVIded for 01 8lIdIas8d In IlllSe By.LIws. the By-Laws shaI be cIeernBd to
Include lie provisions of S8cIIon 718.1 t2(2)(a) hough (0) rI the Ad..
4. ~ The CIIpIIons heI8in 8I81nserf1ed only as IIlllIIIer of convenIen:e and lor /8feI8nC8. and
In no WB'f dellne or ImIl the eoope of these By-Laws or Ihe In\llnt of Ill'/ proVisIon hereof.
The foregoing W88 adopIl:ld as 1he By-Laws of PROMENADE (BOYNTON BEACH)
CONDOMINIUM ASSOCIAT\ON, INC., a corporalIon not for profi under Ihe I8ws of the SIaIe of Florida, as
oflhe~dayof April .2010.
SCHEDULE. AU
TO
BY.LAWS
RULES AND REGULATIONS
FOR
PROMENADE CONDOMINIUM
Each of the rules and regulations shall be in accordance with all applicable County, City and State codes,
ordinances and regulations.
1. The sidewalks, entrances, passages, lobbies and hallways and like portions of the Common
Elements shall not be obstructed nor used for any purpose other than for ingress and egress to and from the
Condominium Property; nor shall any carts, bicycles, carriages, chairs, tables, clothing, shoes or any other objects be
stored therein, except in areas (if any) designated for such purposes. The foregoing shall not, however, be
applicable to the Commercial Units, except as otherwise expressly provided in the Declaration. As and to the extent
set forth in the Declaration, the Owners of the Commercial Units shall be permitted to make use of the sidewalks,
entrances, passages, and other portions of the Common Elements adjacent to their Units to further the commercial
uses from their Commercial Units.
2. The personal property of Residential Unit Owners and occupants must be stored in their respective
Residential Units.
3. No articles other than patio-type fumiture shall be placed on the balconies, patios, terraces or
lanais or other Convnon Elements or Umited Common Elements of Residential Units. No linens, cloths, clothing,
shoes, bathing suits or swimwear, curtains, rugs, mops, or laundry of any kind, or other articles, shall be shaken or
hung from any of the windows, doors, balconies, patios, terraces, lanais, railings or other portions of the
Condominium or Association Property. The foregoing shall not be applicable to lhe Commercial Units or the
Commercial Unit Owners.
4. No Unit Owner or occupant shall permit anything to fall from a window or door of the Condominium
or Association Property, nor sweep or throw from the Condominium or Association Property any dirt or other
substance onto any of the balconies, patios, terraces and/or lanais or elsewhere in the Building or upon the Common
Elements, Each Unit Owner shall be responsible for cleaning up after themselves, and their guests, tenants and
invitees when within the Condominium or Association Property, including, without limitation, placing all trash and/or
garbage in the proper receptacles,
5. No garbage, refuse, trash or rubbish shall be deposited except as permitted by the Association,
The requirements from time to time of the company or agency providing trash removal services for disposal or
collection shall be complied with. All equipment for storage, recycling or disposal of such material shall be kept in a
clean and sanitary condition.
6. No Residential Unit Owner or occupant shall make or permit any disturbing noises, nor allow any
disturbing noises to be made by the Owner's family, employees, pets, agents, tenants, visitors or licensees, nor
permit any conduct by such persons or pets that will interfere with the rights, comforts or conveniences of other Unit
Owners or occupants. No Residential Unit Owner or occupant shall play or permit to be played any musical
instrument, nor operate or permit to be operated a phonograph, television, radio or sound amplifier in his Unit in such
a manner as to disturb or annoy other residents. No Residential Unit Owner or occupant shall conduct, nor permit to
be conducted, vocal or instrumental instruction at any time which disturbs other residents. The foregoing shall not be
applicable to the Commercial Units, nor preclude any lawful uses from the Commercial Units other than to the extent
provided in the Declaration.
7. Employees of the Association are nol to be sent out by Unit Owners or occupants for personal
errands. The Board of., Directors shall be solely responsible for directing and supervising employees of the
Association.
8, No repair of vehicles shall be made on the Condominium Property.
9, No sign, advertisement, notice or other graphics or lettering shall be exhibited. displayed, inscribed,
painted or affixed in, on or upon any part of the Condominium or Association Property, except signs used or
approved by the Developer (for as long as the Developer owns any portion of the Condominium Property, and
thereafter by the Board) or signs utilized by the Commercial Units (and as to signs utilized by Commercial Unit
Owners, to the extent permitted by the Declaration). Additionally, no awning, canopy. shutter or other projection shall
be attached to or placed upon the outside walls or roof of the Building or on the Common Elements by any
Residential Unit Owner, without the prior written consent of the Board of Directors of the Association. The foregoing
shall not, however, be applicable to the Commercial Units, except to the extent provided in the Declaration, As and
to the extent set forth In the Declaration, the Owners of the Commercial Units shall be permitted to install signage
both on their Units and the Common Elements adjacent to their Units.
10. No flammable, combustible or explosive nuids, chemicals or substances shall be kept in any
Residential Unit or on the Common Elements, other than as is reasonable and customary in vehicles and/or in
cleaning supplies,
11. A Unit OWner or occupant who plans to be absent during the hurricane season must prepare his or
her Unit prior to his or her departure by designating a responsible firm or individual to care for the Unit should a
hurricane threaten the Unit or should the Unit suffer hurricane damage, and furnishing the Association with the
name(s) of such finn or individual.
12. A Residential Unit Owner or occupant shall not cause anything to be affixed or attached to, hung,
displayed or placed on the exterior walls, doors, balconies, railings or windows of the Building, Notwithstanding the
foregoing, any Unit Owner may display one portable, removable United States flag in a respectful way, and, on
Armed Forces Day, Memorial Day, Flag Day, Independence Day and Veterans Day, may display in a respectful way
portable. removable official flags, not larger than 4'1z feet by 6 feet, that represent the United States Army, Navy, Air
Force, Marine Corps or Coast Guard. Unit Owners may also attach a religious object on the mantel or frame of the
Unit Owner's door not to exceed 3 inches wide, 6 inches high and 1.5 inches deep. Curtains and drapes (or finings
thereon which face on exterior windows or glass doors of Units shall be subject to disapproval by the Board, in which
case they shall be removed and replaced with acceptable items.
13. Installation of satellite dishes by Residential Unit Owners shall be restricted in accordance with the
following: (i) installation shall be nmited solely to the Unit or any Limited Common Elements appurtenant thereto, and
may not be on the Common Elements; (ii) the dish may be no greater than one meter in diameter, and (iii) to the
extent that same may be accomplished without (a) impairing reception of an acceptable quality signal. (b)
unreasonably preventing or delaying installation, maintenance or use of an antenna, or (c) unreasonably increasing
the cost of installirig, maintaining or using an antenna, the dish shall be placed in a location which minimizes its
visibility from the Common Elements and othelWise meets the requirements of the Board. The foregoing restrictions
shall not be applicable to the Commercial Unit OWners,
14. No window air-conditioning units may be installed by Unit Owners or occupants. No Unit shall
have any aluminum foil placed in any window or glass door or any reftective or tinted substance placed on any glass,
unless approved. in advance by the Board of Directors In writing. No unsightly materials may be placed on any
window or glass door. or be visible through such window or glass door.
15. Children will be the direct responsibility of their parents or legal guardians, including full supervision
of them while within the Condominium Property and including full compliance by them with these Rules and
Regulations and all other rules and regulations of the Association, All children under twelve (12) years of age must
be accompanied by a responsible adult when entering and/or utilizing the recreational facilities.
16. Pets, birds, fish and other animals, reptiles or wildlife shall neither be kept nor maintained in or
about the Condominium Property except in accordance with the following, in addition to the applicable terms of the
Declaration:
(a) Dogs and cats shall not be permitted outside of their owner's Unit unless attended by an adult and
on a leash not more than six (6) feet long. Said dogs and cats shall only be walked or taken upon
those portions of the Common Elements designated by the Association from time to lime for such
purposes. In no event shall said dog or cat ever be allowed to be walked or taken on or about any
recreational facilities contained within the Condominium Property,
(b) Fish or caged domestic (household-type) birds may be kept in the Units, subject to the provisions
of the Declaration.
(c) Unit Owners shall pick up all solid wastes from \heir pels and dispose of same appropriately.
The foregoing shall not, however, limit the rights of Commercial Unit Owners to invite pets to their Units to
the extent permitted by the Declaration.
17, Every applicable OWner and occupant shall comply with these Rules and Regulations as set forth
herein, any and all rules and regulations which from time to lime may be adopted. and the provisions of the
Declaration, By-Laws and Articles of Incorporation of the Association, as amended from time to time. Failure of an
Owner or occupant to so comply shall be grounds for action which may include, without limitation, an action to
recover sums due for damages, injunctive relief, or any combination thereof. In addition to all other remedies, in the
sole discretion of the Board of Directors of the Association, a fine or fines may be imposed upon an Owner for failure
of an Owner, or such Owner's family, guests, invitees, lessees or employees. to comply with any covenant,
Rules and Regliations
-2-
restriction, rule or regulation herein or in the Declaration, Articles 01 Incorporation or By-Laws, provided that the
procedures set forth in the Declaration for fining are adhered to. Fines shall not be construed 10 be an exclusive
remedY and shall exist in addition to all other rights and remedies to which the Association may be otherwise legally
entitled; however, any penalty paid by the offending Owner or occupant shall be deducted from or offset against any
damages which the Association may otherwise be entitled to recover by law from such OWner or occupant.
18, These rules and regulations shall be cumulative with the covenants, conditions and restrictions set
forth in the Declaration of Condominium, provided that the provisions of same shall control over these rules and
regulations in the event of a conflict or a doubt as to whether a specific practice or activity is or is not pennitted,
Anything to the contrary notwithstanding, these rules and regulations shall only be applicable to the Commercial
Units to the extent expressly provided. Further, anything to the contrary notwithstanding, these rules and regulations
shall not apply to the Developer, nor its agents or employees and contractors, nor 10 the Units owned by the
Developer, except:
(a) Requirements that leases or lessees be approved by the Association (if applicable); and
(b) Restrictions on the presence of pets; and
(c) Restrictions on occupancy of Units based upon age (if any); and
(d) Restrictions on the type of vehicles allowed to park on Condominium Property; however, the
Developer or its designees shall be exempt from any such parking restriction if the vehicle is
engaged in any activity relating to construction, maintenance, or marketing of Units.
All of these rules and regulations shall apply to all other Owners and occupants even if not specifically so stated in
portions hereof. The Board of Directors shall be pennitted (but not required) to grant relief to one or more Unit
Owners from specific rules and regulations upon written request therefor and good cause shown in the sole opinion
of the Board.
Rules and Regulations
-3.
Exhibit "5"
850-617-6381
6/10/2008 1:55:33 PK PAGE 3/003 Fax Server
.
June 10, 2009
FLORIDA DEPARTMENT OF SrATE
Dlvwon ofCotpOT3tions
CONDalINIOM ASSOCIATION, INC.
SUITE 203
PROMENADE (BOYNTON BEACB)
777 EAST ATLAJr.rIC AVENOE,
DELRAY BEACH, PL 33483
The Azticles of Incorporation for PROMENADE (BOYNTON BEACH) CONDOMINIUM
ASSOCIATION, INC. were filed on June 9, 2009, and assiqned document number
N09000005703. Please refer to this number whenever corresponding with
this office.
Enclo.ed is the certification requested. To be official, the
certification for a certified copy must be attaohed to the original
document that was electronically submitted and filed under FAX audit
number B09000138891.
A oorporation annual report/uniform business report will be due this
office between January 1 and May 1 of the year following the calendar year
of the file/effective date year. A Federal Elllployer Identification (FEI)
number will be required before this report can be filed. Please apply N~
with the Internal Revenue Service by calling 1-800-829-4933 and requesting
form 99-4 or by going to their "ebaite at lIlfW.irs.ustreaa.gov.
Plea.e be aware if the corporate addre.s changes, it is the responsibility
of the corporation to notify this office.
Should you have questions regarding corporations, please contact this
offioe at (850) 245-6062.
Euls Peterson
Regulatory Specialist II
New Filings Section
Division of Corporations
Letter Number: 609A00019542
P,D BOX 63Tl- Ta1Jahassee, Flonda 32314
H0900013BB91
ARTICLES OF INCORPOI{ATION
FOR I'ROMF.NAOF. (BOYNTON Bl~ACII) CONDOMINIUM
ASSOCIATION, INC,
The undersigned incorporator, 1'01' the purpose of forming a corporation nul
1'01' profit pursuanlto the laws or Ihe Swte or Florida, hereby adopts tht: following,
Articles of Incorporation:
ARTICLE I
NAMI~
Tile name of tile corpol'illion shull be PROMENAD!': (BOYNTON
BEACH) CONDOMINIUM ASSOCIATION, INC. For convcnicncc, the
~'(lIp()l'llti()11 shall be referred to in this instrulllcnt as the "Association", these
Articles of Incorpol"lltion llS the" Articles", und the By-Laws or the Association llS
the "By-Lllws".
AIrI'ICLE 2
OFFICE
The principal oJ'lkc lllld mailing address of the Association shllll be llt 777
I~"st Atlantic Avenue. Suite 20J, Delray Beach, Floridu 33483, or <1t such other
place us may be suhsequently designated by Ihe Board or DireCl()rs, A II hooks ullll
re!.:ords of the Ass<Jciation shall be kepI lit its principal oni!.:c or llt such other plucc
as may be pennilled by the Act,
ARTICLE J
PURPOSF.
Th.:: purpose fOI' which Ih.:: Association is organized is to provide an entity
pursutlntto the Floridll Condominium Act as it exists on till: dllle hereof (the "Ac!")
1'01' the operutioll of lI1<lt cerlain condominium located in Palm Bel1ch Counly,
Floridu, and known ilS PROMli;NADE CONDOMINIUM (the "Condominium").
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AIHICLE 4
DEFINITIONS
The tcrms used in these Articles shall h!lve thc same delinitions and
meanings us (hose set lorth in the Declamtion of the Condominium LO be rccorded
ill the Public Records of Palm Beach County, Florida. unle.lts hercin provided to the
contrary, or unlcss the context otherwise requires.
ARTICLE S
)lOWERS
The powers of the Assol,;iation shall include <111<1 be govcrned by the
following:
5.1 Genei'll!. The Association shall have all of the l,;omll1on-law und
Sllllutory powers of II corporation not lor prolil undcr the Laws or
Florida, except as expresllly limited or restricted by the terms of these
Articles. the Deelnl'lltion, the By-Laws 01' the Aet
5,2 Emnm:nllion. The Association shall have all of the powers and duties
sel forth in the Act, except as limited by these Articles. the By-Laws
llnd the Decblrution (to the extent that they arc not in conniet with thl.:
Aet). nndull of the powcrs and duties reasonllbly nccessary to operatc
the Condominium pursuant to the Declaration IInd as morc
pll1'ticul,lrly described in the By-Laws, liS Lhey m:l)' be amcndcd from
timc to limc, including, but not limited to. thc following:
(a) To make and collect Assessmcnts Ilnd other charges ugainsl
mcmbers us Unit OWI\CrS (whether or nol such SUlllS are duc
,mcl payablc to the Associ,llion), and to usc the procl.:I.:ds ,hcreol'
in thc cxercise of its powers and duties.
(b) To assume nil of Developer's and/or iLS "nilintcs'
rcsponsibilities to the City andhlr COllnty, lllld its governlllcflhll
and qUllsi-govcrnmcntlll subdivisions and similar entities of any
kind with respect to the Condominium Propert)' (including..
without limitlllion. any :Ind all obligations imposed by allY
pcrmits or approvlIls issued by tho City and/or County, as slImc
may be amended. modified or interpreted from time to timc)
und the Association shllll indemnity and hold Ucvelopcr lInd its
arnlialcs harmless with respect thcrcto in the evenl of the
Associntion's failure to I'll I fill those responsibilities,
Mldcs
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(c) To buy, accept, own, opcrate, lease, sell, tl1ulc and morlgage
both real and personal property in accordance with lhe
provisions of the Oeclaration.
(eI) To nmintain, repair, replace, rcconstruct, mid 10 und upcratc the
Condominium Property IInd/or Association I'roperl)', llnd olher
properly acquired 01' leased by the Association,
(0) To purehasc insurum;c upon the Condominium Properly und
Associlltion Properly and insurance for the protcction of thc
Associution, ils ortieers, dircctors und Unit Owners,
(f) To make and amend reasonable rules lInd regulations lor the
maintenance, conservation and use of the Condominiulll
Property lInd Association Propclty and for thc heulth, comfort,
salety and welfare oCthe Unit Owncrs.
(g) To approve 01' disapprove the leasing, transfer, ownership and
possession of Units as may be provided by the Declaration,
(h) To enforcc by legal mcans the provisions of Ihe Acl, the
Declaration, these Articles, the By-Laws, and the rules illld
rcglllulions for the IIse of the Condominilllll Properly nnd
Associalion Property.
(i) To contrue! for the management and mllintcnanl:c of the
Condominiulll Property IIndlor Association I'ropert)' and to
lllllhorize a munugelllent ngcnt (which muy he un an11inlc of the
Devdoper) to lIssist tile Association in currying Ollt its powers
illlt! duties by performing such f\lIlctions liS the submission of
proposals, collection of Assessments, preparation of records,
entlll'l:Clllenl of rules und maintenance, repair llnd replacement
of the Common Elements and Associution Propcrly with sUl:h
funds us shall be made avai lable by I he Association fIll' such
purposes. The Association und its officers shllll, however,
retain lit "U times thc powers and duties gl'llnh:d by the
Cundominium Act, including, but not limited to, lhe making of
^ssessmcllls, promulgation of rules and exceution of conlrncls
on behalf of the Association.
OJ To employ personnel to perform the services required for the
pruper operation of the Condominium und the Associulion
Pl'llperly,
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(k) The obligalion lO (i) operate and mllintoin the slIrf'nce water
mll11ng.CI1lCnt system in accordance with the permit issucd by
the District. (ii) ca1'l'Y Ollt, Il1ninlllin, and monitor an)' rcquircd
wetland mitigalion lasks and (iii) mnil1lain copies or all
pcnnilling nctions with rcgnrd to the Districl.
(I) To execute all documenlS or conselllS, on behlltr or nil Unit
Owners (lmd their mortgagees), required by all governmental
and/or qUllsi-governmentnl agencies in connection with land usc
und development malleI'S (including. without limitation, plats,
wnivers of plat, unities or tille, covenants in lieu thereof, etc.),
and in that regard. cnch Unit Owner, hy acceptance of thc deed
to such Owner's Unit, and each mortgagee or a Unit, hy
acceptance of II lien on said Unit. appoints and designllles the
President of the Association as such Unit Owner's ,lIld
mortgagee's agenl and ntlllrney-in-faet to exccute. un)' unci all
such documents or consents,
),) ASSllci.uiun PropllliY. t\III1.1Ods ond the tille to all properties uequircd
by the Assoeiution llnd their proceeds shnll be held for the henelit nnd
use of lhe members in accordance with the provisions of the
DCC];lrlltion. these Articles and the By-Luws.
5.4 Distribulio!1,J!!Jncome: Dissolution, The Association shall not pay il
dividend to its members and shall make no dislribution of income to
its mcmbers, directors or orlicers, llnd upon dissolution, all assets or
the AssO\;iution shall be tl'llnsferl'l:d only to lmother non-profit
corporation or u public ogeney or us otherwise lluthorized by the
Florida Not For Profit .Corporntion Acl (Chupter 617. Florida
Statutes).
5.5 Limilutioll. The powers of the Association shall be subject to llnd
sholl be exercised ill accordance with the provisions hereof and or the
Dcclul'I\tion, the By-Lnws and the Act, provided that in the event of
COllllicl, the provisions of the Act shnll control over those of the
Declarntion unci By-Laws,
AH.TICLl~ 6
MEMBERS
6.1 Membership, Thc mcmbers of the Association shull consisl of all or
the record tille owners of Units in the Condominiulll from time to
Arlid..
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lime. and aller lermination of the Condominiulll, shall ilJsO consisl or
those who were members III the lime of such termination, und Iheir
slll:cessors and ilssigns.
().2 /\ssignmel1.!, The share of a member in the runds and lIssets of the
Associulion cunllol be assigned, hypolheclIted or tmnslerred in any
1lll\J\IlCr except as all appurtenullce to lhe Unit lor which thul shure is
held,
6.3 Voting, On alllllullers upon which the membership shnll be l.'lllillcd
to vote, there shull he aile (I) VOle for each Rcsidcntilll Unit, one (I)
vote lor each Tnlllsient Unit and one (J) vote lor each Commercial
Unit. All voles shall be exercised or cast ill the mllnller provided by
tJw Declaration (lnd By-1..nws. Any person or entity owning more limn
one Unit shull be enlitled to Cllst the aggregate number of votes
allributabJe to all Units owned.
6.4 Mcelillll.s. The l3y-Lnws sholl provide 101' an 1111 Illm I meeting of
members, and mllY make provision lor rcgular and spcciuJ meetings of'
members other than the ,lnllUallnCeling,
ARTICLE 7
TI<:I~M OF EXISTENCE
The Associlllioll shall huvc pcrpetLllll cxistencc, unless disslllvcd ill
m;corclanec wilh applicable 11Iw.
^RT1CL(~ H
I NCORIlORATOR
The namc .1I1d address oCthe Incorporator oflhis CorpOl'atiun is:
NlIlIlC
Address
Pryse It Elam
777 East AlImllic A venue
Suite 203
DelrDY, FI, 33483
A"','~
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ARTICLE 9
OFFICE.RS
The "m.irs of lhe Association shall be administered by the o!'licers hoh!ing
the oniccs designated in lhe By-Laws. The oflicers shull be elected by the Hoard of
Din:ctors orthe Associulion ul its tirstmeeting lullowing the onllulIlmeeling ()(' the
members of the Association and shall serve lit lhe pleasure of the Board of
Dir~'ctors. The By-Laws may provide for the removal from office of oflicers. tor
filling vacancies lInd for the duties and qualifications of lhe officers. The nallles
and addresses of the officers who shall serve unlil their successors !lrc designated
by the Board of Directors ure as follows:
J!.rcsidcllt
.Ion Gillmun
60 State Street,
Suite 1500
Boston, MA 02109
Vice Prcsidcnt/Secretnrvl
:D:easurer
Sam Wayhllld
777 East Atlantic Avellue
Suite 203
Delray Bench, FL 33483
ARTICLl~ 10
DIRECTORS
10.1 Number i.\!ld OU<lliliClllion. The property. busincss and amlirs of the
Association shall he managed by a bOllrd consisting of the number of
directors determined in the manner providcd by the By-Laws. but
which shllll consist of not less lIulIl lhrce (3) directors, nor more th.m
nine (9) directors. Directors need not be mcmbcr's of the Association.
10.2 Dutil,ls nnd Powers. All of the duties and powers of the Association
t:xisting lindeI' the Act, the Declaration, these Articles uml the By-
Lilws sl1<111 be exercised exclusively by the ROllrd of Directors, ils
ngents, contl1lctors or employees, subject only to npl)roval by Unit
Owners when such approval is speci fieally required.
I U.J Election: Removal. Directors of the Association sholl be elected at
the illlnmllmecting of the members in the manner determined by lInd
subject to the qualifications se! forth in the By-LlIws, Directors nHlY
Ar\lclcs
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be removed lInd vucancies 011 the BOllrd of Directors shall he tilled in
thl: lIl11nner pruvided by the By-Laws.
10.4 Term or Developer's Direclors, The Develoj)l:r or the Condominium
shull "ppoint the members of the first Board or Directors and their
rl:plul:cl11l:nts who shall hold ornee for the periods described in thl:
Uy-I..aws.
10.5 First Directors. The namcs and addresses or the members of the first
BOIlI'(I of' Directors who shall hold office lIlltil their Sllccessors lire
elected and have takcn oflice, as provided in the By-Laws, (In; as
follows;
Nallle
Address
JOIl Gillmlln
60 State Street,
Suite /500
Boston, MA 02 I 09
Slim Wayland
777 East Atlcll\tie A venue
Suite 20)
Delray Beach, FI 33483
Benjul11inl3rown
777 East Atlanlic Avenue
Suite 203
DclnlY Beach. fl J3<1lG
10.6 Standards. A Din:ctor shull dischurge his or her duties as a din:clor,
including uny duties as II member of II Commillec: in good tilith; with
lhc cure nn ordinary prudenl person in II like position would exercise
under similar eirclIlllstances; Ilnd in a nlllJ1neJ' rClIsonubly believed 10
be ill the best interests of the Association. UnlesR a Director has
knowledge concerning u mullcl' in question Ihat makes fe/iuncc
unwarranted. iI Dil'cetor, in discharging his or her dUlies. muy rely on
in!(l/'Illlltion, opiniolls. reports or slutements, including finuncial
stalemcnts and Olher daln, if pl'cpllrcd or prcscnted by: one or more
ol"licel'S or employees or the Associntion whom lhl: Direcl()r
reasonubly believes to be reasonable and l:ompctent in Ihe mllnners
presented; legal counsel, public aceounll1nls or other persons lIS to
mullcrs Ihe Director reasollably believes arc within the person::'
professionul 01' expert competence; or II COlllmillee of which the
Ar1icIes
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Director is nol a member if the Director reasonably believes lhe
Committee mcrits conlidence. A Director is not liable lor any !Iclion
tuken as a director, 01' any fhilurc to take action. if hc pcrlol'med Ihe
duties of his or her office in compliance wilh the foregoing standards.
AlnlCLE 1.1
INI>EMNJFICA TJON
11,1 lndcmnitees, The Assoeiutiol1 shall indemnify nn)' persoll who was or
is" pllrly 10 any proceeding (other than llnllClion by, or inlhc right oj:
Ihe Assoeiution) by reason or the lilCl lhat he or she is or wns a
director, omcer, employee or agent (each. an "Indemnitee") of Ihe
Association, ngninst liahility incurred in connection wilh such
proceeding, including any appeal Ihcrool: if he or she acled in good
failh lmd in a munner he or she reasonllbly believed to be in, or nol
opposed to, the best interests of the Association and, with rcspecI 10
uny criminnl aClion or proceeding, had no reasonable cause to belicve
his or hcr conduct was unlawful. Thc Icrmillltlion of [lny proceeding
by judgment, order, setllcmcnt, or conviction or upon 11 pica of nolo
contcndel'~ 01' its equivalent shall nOl, of itself, create 11 presumption
Ilull Ihe purson did nol nct in good lilith and in a manner which he
reasOIlllbly believed to be in, or not opposed 10, the best illlcrests of
Ihe Association OJ', with respect to any criminal aclion or proceeding.
hud reitSOnllblc cause to believe that his or her conduct was unlllwful.
11.2 Indcmnitication. The Association shall indemnify llny person, who
was or is iI parly to llny proceeding by or in thc right or the
Associalion to procure II judgment in ils lavor by reason of Ihe facl
that he 01' shc is or was a director, officer, employee, or llgelll of Ihe
Association aguinst expenses nnd amounls paid in sculcment not
excucding, in Ihe judgment of Ihe board or directors, the cstimated
expcnsc Clf liligating the proceeding 10 conclusion, actuully und
reasonably incurrcd in connection with the defense ClJ' sellk'menl of
sueh proceeding. including UIl)' appealthcrcoi: Such indemnificalion
shull be lluthorized if such person tlcled in good [-ilith and in u munncr
he rCllsClnnbly believed to be in, 01' not opposed to, Ihe best inlerc~t~ of
1he Association, except thlllno indemnification shall be made under
this Arlicle I I in respect of lIny claim, issue, or malleI' liS to which
such person shall havc becn adjudged to' be liable unless, lInd only 10
Ihe exlenl thol, thc court in which such proceeding WllS brought, 01'
llllY other coul1 of competent jurisdiction, shall dctcrmine upon
Micln,
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npplic,llion Ihal, dcspite lhe adjudicution of liability hlll in view of (lil
cin,:ulllstanccs of the case, such person is fairly llnd reasonably
cnlilled tn indemnity tor ~uch expenses which such court shall deem
proper,
11.3 Indcmni Iiclltion for Expenses, To the I.:xtcnt that l\ director. oflicl.:r,
cmployee, or agent of the Association has been successful on the
merits or otherwise in delense of any proceeding rcferred to in
suhsection 11.1 or 11.2, or in delcnse of any claim, issue. or mailer
therein, he or she shall be indemniticd lIgainst expcnses lIctllally and
rellsonubly incurred by him or her in connection therewith.
J 1.4 Dctermination of Applicability, Any indemnificalion undL:r
subsection 11,1 or subsection 11.2, unless pursuant to a detel'lnination
by a COllrt, SIUlI] be mude by the Association only as ,luthorized in the
spccific case upon a detcrmination that indemnification of (he
director, ortker. ~mployee, or agent is propel' under the circllmstllnccs
beclluse he or she hus metth!: applicable stondard of conduct set 1'011:,
in subsection J 1.1 01' subsection 11.2. Such detunninlltion shull bl.:
made:
(n) By Ihl.: BOllrd of Directors by II llIajority VOle DI' a quonul1
consisting uf dirl.:clors who were not pai'lies to such proceeding;
(b) ,If SLlch a quorum is nol obtainable or, even II' oblainable, by
, nHljority vote of a Commillee c1uly designllled hy the noard of
Directors (in which dil'ectms who arc parties may participute)
consisting solely of two 01' more Directors not at thc lime
panics 10 the procueding;
(.) By independcJlt Icgal counsel:
I. selcetcd by the Bonnl of Direclors prescribed in
purugrnph 11.4(0) 01' the committee prescribed In
puragruph I J .4(b); 01'
2. if u quorum of the Directors cannot be obtained 101'
purugraph 11.4(0} and the Commiltcc Cilllnol be
designated under pllmgrnph 11.4(b), selected by Illluority
vute of the nlll Board of Dircclurs (in which Directors
who IIl'e pnl'ties may pllrlicipnlc); UI'
Af1icIes
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(d) By n majority of the voting interests of the mcmbers of the
^SSOcilltion who were not parlies to such proceeding.
11.5 Q,L:tenninntion Regarding Expen~_~. Evaluulion of the rClIsonubh:ness
of cxpensc~ lInd Illlthori7.lltion of indemnification shull be made in tile
sume llIanner us the determinationlhl11 indemnification is permissibk'.
(Inwcver. if the determination of permissibility is IIlllde by
independent legnl cOllnsel, persons spccitied by parugl'llph 1I,4(c)
shall evaluatc the reasonableness of expenscs and lIlay lluthorize
indellllli !ication.
11.6 ^dvllnc,ing Exp-enses, Expenscs incurred by on oHicef' 01' director in
defending a civil or criminal proceeding 1Il(1)' be paid by the
^ssocintion in udvllnce of the linnl disposition of SlIch proceeding
upon receipt of an undcrtnking by 01' nil behn!f of such dircclur or
ollicer III repay slIch alllount if he is ultimlltcly fi1l11ld not 10 he
entitled to indemnification by thc Association pUr~Ulll1t to this section,
Expenses incurrcd by other employees nnd agents may be paid in
mlvnnee upon such terms or conditions thlll the Board of Directors
dccms Ilpproprillle.
II. 7 Exclusivity: Exclusions. The indemnification and udvllncemcnt of
cxpenses provided pursuant to this section are not exclusivc, fllld the
Associatiun mllY make Ilny other or further indemnification 01'
ndvoncemcnt or expenses of llny of its directors, officers, empluyces,
ur agents, under any bylllw, agreement, vote of slum'holders or
disinll.::rcsted directors, or otherwise, both as to action in his or hcr
official capacity and liS to action in anolher capm;il)' while holding
such orncc, However, illdclIlIliticlllion 01' advancement of expcnses
shtlllnot be madc to 01' on bchnlf of llny directnr, onicer, cmployee, nr
llgent iJ' n judgmcnt 01' othcr final adjudiclltion establishes lhat his 01'
her llcliollS, or omissions 10 act, wcrc mutcrinlto the elluse of Ilclion so
adjuclicllted llnd constilule:
(II) ^ viollllion of lhe criminal law, unless the director, ofticcr,
employcc, 01' agent had reasonable caLise to believe his or her
conduct \VIIS lawful Ot' had no rClIsonablc cause to bclicve his 01'
her conduct was unlllwful:
(h) A Il'lIlIsaction !i'01ll which the dircct\ll', onicCI'. employce. or
llgent derivcd llll improper pCl'sol1l1l benefit; 01'
MlcIe.
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(c) Willrul misconduct or a conscious disn:gllrd li)r Ihe heSI
inlercsls or the Association in II proceeding by or in lhe righl (If
Ihe Associution to procure II judgmenl in its (lwor or ill 1I
pl'llcecding by or in the right ol'lhe members of'lhe Associtllillll,
Il,ll Continuing Enbcl. Indemnification and lldvllnCel1lent of" expens~s os
pwvidcd in Ihis Article II shall continlle us, unless otherwise
pmvidcd when 3lllhol'jzed or ratified, to a person who has ceased 10 be
II director. onicer, employee, or ngent llnd shall inure to the benelil of"
the heirs, executors, llnd administrators or slIch II person, unless
otherwisc provided when aulhorized or rl1tilled,
11,9 Appliclltion to COIll1. NOlwilhstanding Ihe fllilure of" the Associalion
to I>rovide indemnilicmion, und despile any contrnry c1etcrmimltion of
the BOllnl or or the members in Ihe specilic case, n director, officer,
employce, or agent of" Ihe Associlllion who is (lr WilS II party 10 I'
proceeding may apply for indemnification or advlInccment or
expenses, or both, to the cOllrt conducting the proceeding, 10 the
circuit cOllrt, or Lo llllother court of competent jurisdiction, On receipl
or Iln application, the COlii'I , atier giving any notice thaI it considefs
ncccssmy. may order indcmnificalion nnd advnncel1lenl of expenses,
including l:xpenscs incurred in seeking cOlll1-ordcrcd indcmniliclltion
or 11dvilneClllenl of" expenses, ir it determines that:
(a) The director. otl1cer, employee, or agent IS entitled to
!llandatufY indcmnificotion under subsection I J ,3, in which
casc Ihe court shall also order the Associlltion Lo pay the
director rl'lIliOnllble expenses incllrred in obtaining court-
ordered indemnificlIlion 01' advlIncemenl ofexpenscs;
(b) The "dircctor, otlker, employee, or lIgcnt is cntitled to
indcl1Initiclltion or lldvlInccment of cxpenses, or both, by virtue
of the exercise by the Associlltion of its power pursulInt to
subsection 11.7; 01'
(c) The director, officer. employee, or agent is fairly llnd
reasonably entitled Lo indelllnitielltion Of adv,lIlcemcnt of
expenses, or bOlh, in view of all the rclcvlllll eirclIlllstances,
n:gul'dlcss of whclhcl' such pel'SOIl met lhc stllndard of conduct
scl lorLh in subseClion Il.(. subsecLion 11.2, or subsection 11.7,
unless (a) II cOlin of" compclcnljurisdiclinn determines, <Iller all
(Ivnilablc lIppeals have beell exhausled or noL pursued by lhe
Allic:Ie&
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proposed indemnitee, thai he or she did not act in good Iililh or
acted in 1I1l1nnner he or she n:llsol1llbJy believed to be nol in, or
opposed 10, the best intcrest of the Association, and, with
I'cspeclto uny criminal action or proceeding, that he 01' she had
reasonable Cllllse 10 believe his or her conduct wus unluwful,
und (b) such COLII'I lin'1I1cr speci Iicully determines Ih,lt
indemnification should be denied. The termination of nny
proceeding by judgment, order, settlement, conviction or upon a
plcH of nolo contendere or its equivalent shall not, of itself,
erentc a presumplion thnllhe person did not act in good raith or
did act in l\ manner which he or she rc.:asonuhly believed 10 he
nol in, or opposed to, the bl.'st interest of the Association, :lIld.
with res pee I to nn)' criminulllction or proceeding, that he or she
had I'cHsonable calise 10 believe that his or her condlll,;l W,IS
unlawlill.
11.1 () Definitions. For pUJ'poscs ol'this Al1iclc II. lhc tC1'1ll "expenses" shall
be deemed 10 include allorneys' fees und relllted "ollt-of-pockd"
expenses, including those for any appeals; Ihe t.erm "liability" shall be
deem!;:d to include obligations to pay a judgment. selllelllcnt. penally,
fine, llnd expenses IIctllolly und rcasonllbly incurred with respcet to a
proceeding; the IeI'm "proceeding" shull be deemed to include lIny
threlltened, pcnding, 01' completed uction, suit, or other type or
rrol,;ccdin~, whether civil, criminal, administl1ltivl: or inveslig,llivc,
und whethcl' formal or infonnul; und Ihe term "agenl" shall be dcemcd
to include a volunteer; the term "serving at the request of Ihe
Association" shull be deemed to include any service as a director,
officer, employec 01' agent of the Association IhuI imposes duties Oil,
und whieh arc accepted by, slIch persons,
11,11 Amcndn~.!l!., Anything to lhe contrar)' herein notwithstanding, no
Illl1endment III the provisions of this Article li shall be uppliclIblc as
10 allY pill1y' eligible for indemnification hereunder who hlls not given
his or her prior writtcn I,;onsent to such amcndment.
ARTlCLE 12
BY-LAWS
The firsl By-Laws of the Associlllion Shllll be adopted by the l3olll'd of
Directors and may be altered, amended or rescinded in the manner provided in the
By-I.uws und lhe Dcclnralion.
Article$
.12.
fI09000138891
ARTICLE 13
AMENDMI<~NTS
Amendments to these Articles shall be proposed llnd adopted In the
following mllllllel':
13. J Notice. Notice of a proposed llmcndmcnl shall be included in the
notice of ,lilY mellting at which the proposed umendmellt is to be
considered nnd Shilll be otherwise given in the time and lIIanner
provided in Chap IeI' 6) 7, Florida Statutes. Such notice shall contllill
the proposed mllcndment or a sUllllllary of the chunges 10 be af/ected
thereby.
13.2 Adoption. Amendments shall be proposed and adopted ill the mUllner
provided in Chapter 617, Florida Statutes and in the Act (the laUeI' to
cOlllrol over Ihe former to the extent provided for ill the Act).
J ],] l.imilillion. No umcndment shall make !lny changes ill the
llualilications (or membership, nor in lhc voting rights or properly
rights or members,. nor any changes in Subsections 5,3, 5,4 or 5.5
above, without the approval in writing of nil members and the joinder
of nil rtlcord owners of mortgages upon Units. No umendmcnt shull
be Illude thut is in con1lict with the Act, the Declunltion or the By-
Laws, nor shall lmy amendment make .my chllnges whicll would in
.1IIY wny affecl nny of the rights, privileges, powers 01' options Ilercin
pl'Ovided in favor of or reserved 10 Ihe Developer and/or Inslitutional
Firsl Mortgagees, unless the Developer lll1d/or the InstituliollilJ First
Morlgagees, as uppliellblc, shull jOin in tllc execution or the
umcndmcnl. No ul1lcndmcntlo this paragraph ]3,) shall be ef"!'cctive,
13.4 Dewloper ,j\mclll!Jll!llil!i, Notwilhslnndillg anything herein conlained
to the eontl'lll'Y, to the extentlawrlll, the Developer may amend these
Articles eonsislt:nt with the provisions of the Deelurulion llllowing
ccrtnin 31nendmenls to be effected by the Developer alone,
J J,5 Recording, i\ copy or cuch nmendment shall be Ii/cd with the
Secretary of SIi:lle purslIIlIllto the provisions of applicnble Florida hlW,
and u copy certified by lhe Secrctury of Stall' shall be recorded in tht'
public records of Palm Belich Count)', Florida with !In identificatioll
on the first pllge thcreof or the book llnd page of' said public records
where the Deelllmtion was recorded which cOnluins. as (Ill exhibit, the
illitinl recording of these Articles.
Ar1icles
,13.
H09000138891
ARTICLE 14
INITIAL REGISTERED OFFICE;
ADDlU:SS AND NAMI~ OF REGISTERlm AGENT
The initial registered oniee or lhis corporation shall be 01 777 East Atlantic
Avenue, Suite 203, Delray Reach, Florida 33483, with the privilege of hnving its
office ilnd bmllch otliees lit othcl' ploces within or without rhe Stllle or Florida.
The illiliul registered ilgent at (hot addrcss shall be I)rysc R. Elmn.
/Nt IN WJ'l)lESS WIIEREOr, the Incorporator has affixed his signillllrc lhis
1--:' dny or-rk-----n-' 2009, I ./,' ,
~~~L _.__
Prys _ Elill11. Incorporator
Ar1iclos
,14-
H0900013BB91
CEI{TIFIC^'l'Ii DESIGNATING PLACE OF BUSINESS OR DOMICILE
FOR THE SERVICE OF PROCESS WITHIN THIS STATI~.
NAMING AGENT UPON WHOM PROCESS MA Y BE SERVED
In compliancc with the laws of Floridu. the following is submitted:
First -- ThaI desiring to organize under the laws of the State or Floridu wilh
its principal oJ'lil.;e. ns indic,ll~d in Ihe loregoing articles of incorponltilll1. tll\:
^ssocinlion IUlllll'd in Ilw SHid articles has named Pryse f{, Elmn. IllCillcd al 777
1;;lsl ^lhll1lic I\venlle. Suite 203, Delm)' Bt:!Ich, FlllI'idll 33483. .IS its sl,lllIlur)'
rcgislered ugenl.
Having heen named the slatutory agent of said Associution at the place
designated in this certificate, J am familial' with the obligations or that position, and
hereby accept the slime !lnd ngrcc 10 acl in Ihis capllcity, and agree to comply with
the provisions of Florida law relative to keeping the registered of'Jice open,
.I~
/l
Prys R. Elml1, Registered Agent
DATED this~~dllY Ol~.
2009.
::;::'.';r t::- Hf.!.:::!f,t . ;'~.i ~'.'I p-:>.:(.';': . ..).i;'r-\
I tl(iri~h:, n~rl!i.f 1!~i;ll.!~G
for€~jl)iil~J I;: J ~fue copy
",,2 3~f.,t:'e "corc~'.:; "jIiC:, tJ
I, ,1".____UI\, _or-:-.~:-!l/--;-c;--' ,-~.._---
~"::u'"
----..---i-_,.-':.-;-;"~~'- n_______ -~
~~~<iY~T8~ eRA
Ii East Side-West S',de-Seaside Renaissance
eRA BOARD MEETING OF: March 9, 2011
I Consent Agenda IX I Old Business I I
New Business
Legal
I Executive Director's Report
SUBJECT: Request from Palm Beach County for Repayment of Development Regions Funds
for Delray-Boynton Academy in the Amount of $50,000
SUMMARY: In June of2004 the CRA entered into a Development Regions Grant Agreement with Palm
Beach County in the amount of $50,000 for the purpose of granting $50,000 to the Delray-Boynton Academy.
The CRA was the recipient of the funds. The CRA matched PBC funds with $50,000 and entered into a
Development Regions Grant Agreement with Delray-Boynton Academy.
The purpose of the grant was to build a new building for the school at 425 E. MLK Blvd. that was relocating
from Delray Beach. The building was completed in 2005 and the school opened for the 2005 school year.
The purpose of the Development Regions Grant Program (now defunct) was job creation. Recipients of grant
funding are required to create and maintain jobs for a two year period. Grant recipients were required to submit
their Florida Dept. of Revenue Employer's Quarterly Report (UCT-6) forms to the CRA in order to verify job
creation. These in turn were submitted to the County.
The Delray-Boynton Academy was a charter school authorized by the School Board in 1998. However, the
school lost its charter from the School Board in December 2006 (See attached School Board agenda). Therefore,
the school could not fulfill its job creation obligations under the grant agreement. Additionally, the school never
submitted VCT -6 forms as proof of jobs. The school submitted names and amounts on school letterhead as proof
of job creation.
As part of the granting of funds, the CRA placed a note and mortgage on the schools property in the amount of
$100,000 in order to protect the Agency in the event it had to repay Palm Beach County. The Agency began to
take legal action to recover the grant funds. The Agency settled for $5,000.
On February 18,2011, the Agency received a letter from the County requesting the repayment of the grant funds
in the amount of $50,000.
FISCAL IMPACT: The Agency did not budget this for FY 10/11. The County is allowing the Agency to
budget the funds for next fiscal year.
CRA PLAN, PROGRAM OR PROJECT: Heart of Boynton Community Redevelopment Plan
RECOMMENDATIONS/OPTIONS: Authorize staff to budget $50,000 in the FY 2011/2012
budget for repayment of the County grant funds.
'-
~
Vivian L. Brooks
Interim Executive Director
-
T:\AGENDAS, CONSENT AGENDAS, MONTHLY REPORTS\Completed Agenda Item Request Forms by Meeting\FY 2010.2011 Board
Meetings\03-09-11 Meeting\PBC Dev Reg Grant refund Delray Boynton,doc
Economic Development Office
P,O, Box 1989
West Palm Beach, FL 33402-1989
(561) 355-3624
PAX: (561) 355-6017
www.pbcgov.com/edo
.
Palm Beach County
Board of County
Commissioners
Karen T, Marcus. Chair
She1\ey Vana, Vice Chair
Paulette Burdick
Steven L. Abrams
Burt Aaronson
Jess R. Santamaria
Priscilla A, Th.ylor
County Administrator
Robert Weisman
"An Equal Opportunity
A.ftim/ative Action Employer"
@ printed on recycled paper
~
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..",-"
February 18, 2011
Vivian Brooks, Executive Director
Boynton Beach Community Redevelopment Agency
915 S. Federal Highway
Boynton Beach, FL 33435
RE: Development Regions Grant Agreement R2004-0971
De/ray Boynton Academy Charter School
Dear Ms. Brooks:
Under the above referenced agreement, the Boynton Beach Community
Redevelopment Agency (CRA) was awarded $50,000 for the Delray Boynton
Academy Charter School on June 8, 2004. Unfortunately, the project did not
meet the contractual requirements under Section III (B) which required the school
to create and maintain five (5) full time equivalent jobs from February 7, 2006
through February 7, 2008. The project reported the creation of one (1) full time
equivalent job during the period of July 1 through December 31, 2004 and the
creation of five (5) full time equivalent jobs during the period of January 1
through June 30, 2006. The CRA subsequently advised this office that they were
provided no records from the project showing proof of job maintenance.
Pursuant to Part IV (D) of the Contract, this letter is to serve as Palm Beach
County's request for the return of the full amount of the grant award. Palm
Beach County understands that the Boynton Beach CRA would need to budget for
this request and appreciates your efforts in forwarding the requested $50,000 to
the attention of Beverley Reid, Fiscal Manager, Palm Beach County Economic
Development Office, 301 N. Olive Avenue, West Palm Beach, Florida 33401.
Sincerely,
Sher~~
c: James Cheraf, CRA Attorney
Palm Beach County: E-Agenda
~,
~~:i 1letillNildolNmW.
~'
Page 1 of 4
~
Meeting Date: Wednesday, December 13, 2006
SHORTCUTS
Call to Order
Pledge of Allegiance
Opening Remarks
Approve Board Minutes
(Disclosures by Board
Members - Chairman: Do
any board members have
disclosures to make?)
Consent Agenda Items
Presentations
Naming of Schools
Student Government Report:
Student Representative
Delegations/Individual
Appearances & Reports
Approval of Consent Agenda
Committee Report
Unfinished Business
Policy review
legal Review
ExpulSions
New Business
Non-Agenda Speakers
Board DIscussion Item
Adjourn
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close this window
PALM BEACH COUNTY BOARD MEETING
Call to Order
1. Convene:
Pledge of Allegiance
1. Pledge of Allegiance and National Anthem:
Opening Remarks
1. Mr. Graham made opening remarks and welcomed everyone.
Approve Board Minutes
1. None
(Disclosures by Board Members - Chairman: Do
any board members have disclosures to make?)
1. None
Consent Agenda Items
1. Curriculum/Learning Support
1. CLS1-FY2007 School Advisory Council Membership Report
2. CLS2-2006-2007 School Improvement Plans
3. CLS3-Approval of the 2007 Adult Education Registration Fees
2. Agreements/Contracts
1. AC1-Affiliation Agreements with Participating Healthcare
Agencies
2. AC2-11th Amendment to the Agreement between SDPBC and
the Health Care District
3. AC3-Agreement between the SDPBC and Boca Raton
Community Hospital
4. AC4-Cooperative Agreement with SP Behavioral, LLC, dba
Sandy Pines
5. ACS-Agreement between the SDPBC and Jupiter Medical
Center
6. AC6-Addendum to the Contract between the School Board of
Palm Beach County, Florida and Arbor E&.T, L
7. AC7-Non-Renewal of the Agreement with Riviera Beach
Academy
8. AC8-Non-Renewal of the Agreement with Delray-Boynton
Academy
9. AC9-Interagency Agreement with Board of County
Commissioners for DFSC Head Start Concerning Student
http://www.palmbeach.kI2.fl.us/agenda!Agenda330.hOO
1/21/2011
Palm Beach County: E-Agenda
3. Grants
~
1. GI-Challenge Grants for Gifted Education Program
2. G2-Mary and Robert Pew Public Education Fund Grant for
Glades Area Elementary Schools
4. Charter Schools
1. CS 1 First Amendment to Agreement Between the School
Board of PB County and Gulfstream Goodwill Trans
2. CS2 Second Amendment to Agreement Between the School
Board of PB County and Gulfsb'eam Goodwill Care
3. CS3 Denial of Charter School Application of Defray-Boynton
ACademy
4. CS4 Denial of Charter School Application of Imagine Charter
School
5. CS5 Denial of Charter School Application of Cornerstone
Academy
5. Personnel
1. POl Personnel Agenda
2. P02 Personnel Addendum
6. Program Management
1. Project Modification Chart - FYI Informational Chart ONLY
2. PM 1 Project Modifications for Boca Raton Middle
3. PM2 Project Modifications for Boca Raton High
4. PM3 Project Modifications for Okeeheelee Middle
5. PM4 Project Modifications for Liberty Park Elementary
6. PM5 Project Modifications for Panther Run Elementary
7. 1"'6 "reject flodifieetiol'ls tel "81m Sl'lrings Clemente""
7. Real Estate
1. RE-l 06-0 Elementary School
2. RE-2 06-0 Elementary School
3. RE-3 06-0 Elementary School
4. RE-4 06-0 Elementary School
5. RE-5 06-0 Elementary School
6. RE 6- Approve Exchange Agreement/City of West Palm Beach
7. RE-7 Approve Lease Agmnt with PBCC for Space at West Tech
8. RE-8 Approve Amendment To Site Specific
Memorandum/Seacrest Ca mpus
9. RE-9 Approve Modification of Restrictions/City of Pahokee
8. Purchasing
1. PI Maintenance of Rre Alarm Systems - SimplexGrinnell
2. P2 Maintenance of Fire Alarm Systems - Siemens Building
Technologies
9. Purchasing/Construction
1. CPI-A/E Agreement for Spanish River Bio- Tech Academy
2. CP2-NE Agreement for H.L. Johnson Elementary School
Addition
3. CP3-NE Agreement for Wellington ES Addition
4. CP4-Agreement for CM at Risk Services for Allamanda
http://www.palmbeach.kI2.ft.us/agenda!Agenda330.htm
Page 2 of 4
1/21/2011
;",,"';"'1 I;';;"
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~~~~Y~T2~ICRA
iJi East Side-West S,de-Seaside Renaissance
eRA BOARD MEETING OF: March 9,2011
I I Consent Agenda IX I Old Business I I
New Business
Legal
I Executive Director's Report
SUBJECT: Request from Palm Beach County for Repayment of Development Regions Funds
for KU Holdings, LLD/ d/b/a Village Homemade Ice Cream in the Amount of $50,000
SUMMARY: In May of 2007 the CRA entered into a Development Regions Grant Agreement with Palm
Beach County in the amount of $50,000 for the purpose of granting $50,000 to KU Holdings, LLD/ d/b/a Village
Homemade Ice Cream. The CRA was the recipient of the funds. The CRA matched PBC funds with $50,000
and entered into a Development Regions Grant Agreement with KU Holdings.
The purpose of the grant was to build-out commercial space in Marina Village for Village Homemade Ice Cream,
a retail and wholesale production ice cream company. The project was completed in August 2008 and opened for
business. The business closed in June 2009 and therefore could not meet its job requirement under the grant
agreement.
The purpose of the Development Regions Grant Program (now defunct) was job creation. Recipients of grant
funding are required to create and maintain jobs for a two year period. Grant recipients were required to submit
their Florida Dept. of Revenue Employer's Quarterly Report (UCT-6) forms to the CRA in order to verify job
creation. These in turn were submitted to the County.
As part of the granting of funds, the CRA placed a note and mortgage on KU Holdings property in the amount of
$100,000 in order to protect the Agency in the event it had to repay Palm Beach County. On January 12,2010,
the grant recipients requested release from the CRA's mortgage and note to make a short sale possible. The
Board denied KU's request.
On February 18,2011, the Agency received a letter from the County requesting the repayment of the grant funds
in the amount of $50,000.
FISCAL IMPACT: The Agency did not budget this for FY 10/11. The County is allowing the Agency to
budget the funds for next fiscal year.
CRA PLAN, PROGRAM OR PROJECT: Federal Highway Corridor Community Redevelopment
Plan
RECOMMENDA TIONS/OPTIONS: Authorize staff to budget $50,000 in the FY 2011/2012
~~untygrantfundS'
VivIan L. Brooks
Interim Executive Director
T:\AGENDAS, CONSENT AGENDAS, MONTHLY REPORTS\Completed Agenda Item Request Forms by Meeting\FY 2010 - 2011 Board
Meetings\03-09-11 Meeting\PBC Dev Reg Grant refund Village Ice Cream,doc
Economic Development Office
PO, Box 1989
. West Palm Beach. FL 33402.1989
(561) 355-3624
FAX: (561) 355-6017
www.pbcgov.com/edo
.
Palm Beach County
Board of County
Commissioners
Karen T, Marcus. Chair
Shelley Vana. Vice Chair
Paulette Burdick
Steven L. Abrams
Burt Aaronson
Jess R. Santamaria
Priscilla A, Thylor
County Administrator
Robert Weisman
"An Equal Opportunity
Affinnative Act/on Employer"
@ printed on recycled paper
.
~
February 18, 2011
Vivian Brooks, Executive Director
Boynton Beach Community Redevelopment Agency
915 S. Federal Highway
Boynton Beach, FL 33435
RE: Development Regions Grant Agreement R2007-1020
KU Holdings, llC d/b/a Village Homemade Ice Cream Cafe
Dear Ms. Brooks:
Under the above referenced agreement, the Boynton Beach Community
Redevelopment Agency (CRA) was awarded $50,000 for the KU Holdings, llC
Project on June 19, 2007. Unfortunately, the business project did not meet the
contractual requirements under Section III (B) which required the creation and
maintenance of 5.5 full time equivalent (FTE) jobs from February 2009 to
February 2011. In fact, the project created a total of 2 FTE jobs during the period
of July 1 through December 31, 2008 and maintained a total of 1.5 FTE jobs
during the period of January 1 through June 30, 2009.
Pursuant to Part IV (D) of the Contract, this letter is to serve as Palm Beach
County's request for the return of the full amount of the grant award. Palm
Beach County understands that the Boynton Beach CRA would need to budget for
this request and appreciates your efforts in forwarding the requested $50,000 to
the attention of Beverley Reid, Fiscal Manager, Palm Beach County Economic
Development Office, 301 N. Olive Avenue, West Palm Beach, Florida 33401.
Sincerely,
dt ~uL
Sherry How~ctor
c: James Cherof, CRA Attorney
Kenneth G. Spillias, Esq.
~~~ctY~Te~ eRA
. East Side-West Side-Seaside Renaissance
CRA BOARD MEETING OF: March 9,2011
I I Consent Agenda I X I Old Business I I New Business
Legal I I Executive Director's Report
SUBJECT: Budget Amendment for Ocean Avenue Projects - Resolution No. 11-01
SUMMARY: At the February 8, 2011 meeting the CRA Board approved the selection of Kaufinan Lynn
as the Construction Manager to complete the Ocean Avenue Projects: Boynton Harbor Marina Entry Feature,
Ocean A venue Amphitheater and Ruth Jones Cottage Relocation. The Guaranteed Maximum Construction
Price for the projects is $953,388. The CRA's FY 10111 budget line item for the projects is $770,000 leaving
a difference of$183,388. Resolution No. 11-01 and Exhibit "A" outlines the amendment to the FY 2010-
2011 General and Project Fund. The amendment requests:
(1) the transfer of$83,388 from the General Fund line items 01-51230-100 and 01-51620-205 to the
Project Fund,
(2) the reallocation of $ 100,000 in Project Fund line item 02-58300-421 for the Ocean Breeze Model
Home to Project Fund line item 02-58200-404 Construction in Progress, and
(3) increases by $183,388 Project Fund line item 02-58200-404 Construction in Progress for a total of
$953,388 for the Ocean Avenue Projects under contract to Kaufinan Lynn.
FISCAL IMPACT: If approved, Resolution 11-01 will authorize the transfer and reallocation of a
total of $183,388 for the difference between the CRA budget of $770,000 for the Ocean Avenue projects
and Kaufinan Lynn's Guaranteed Maximum Construction Price of$953,388.
CRA PLAN, PROGRAM OR PROJECT: Downtown Vision and Master Plan
RECOMMENDATIONS/OPTIONS: Approve Resolution 11-01 amending the CRA budget.
( Aczj\IL---
Vivian Brooks
Interim Executive Director
T:\AGENDAS, CONSENT AGENDAS, MONlliL Y REPORTS\Completed Agenda Item Request Forms by Meeting\FY 2010 - 2011 Board
Meetings\03-09-11 Meeting\Budget Amendment for Kaufman Lynn Project Agreement.doc
RESOLUTION NO. 11-01
A RESOLUTION OF THE BOYNTON BEACH
COMMUNITY REDEVELOPMENT AGENCY, TO AMEND
THE 2010-2011 BUDGET TO REFLECT MOVEMENT OF
FUNDS FROM THE GENERAL FUND TO THE PROJECT
FUND AND REALLOCATE LINE ITEMS WITHIN THE
PROJECT FUND FOR THE OCEAN AVENUE PROJECTS;
PROVIDING FOR CONFLICTS; PROVIDING FOR
SEVERABILITY; PROVIDING FOR AN EFFECTIVE
DATE.
WHEREAS, the Boynton Beach Community Redevelopment Agency Board
(hereafter "CRA") has adopted the fiscal 2010-2011 budget and does allow program
changes as necessary; and
WHEREAS, it is the objective to maintain accuracy of the budget document to
reflect policy determinations of the Board as to the proper and legally defensible
appropriation of funds authorized by the Community Redevelopment Plan.; and
WHEREAS, the CRA Board has approved at the February 8, 2011 meeting the
selection of Kaufman Lynn Construction, Inc. as Construction Manager at Risk for the
Ocean Avenue projects in the amount of $953,388: Boynton Harbor Marina Entry
Feature, Ocean A venue Amphitheater and Ruth Jones Cottage Relocation; and
WHEREAS, the difference between budgeted funds available in FY 2010-2011
and the contracted amount with Kaufinan Lynn is $183,388
WHEREAS, the Director of Finance, based on the Board's policy determination
has identified certain line item appropriations that require budget adjustments hereinafter
reflected.
NOW, THEREFORE, BE IT RESOLVED BY THE BOARD OF
DIRECTORS OF THE BOYNTON BEACH COMMUNITY REDEVELOPMENT
AGENCY THAT:
SECTION 1. The foregoing "WHEREAS" clauses are hereby ratified and
confirmed as being true and correct and are hereby incorporated herein.
SECTION 2. The CRA hereby re-appropriates $54,473.00 from the General
Fund, line item 51230-100 and $28,915.00 from the General Fund, line item 51620-205
and reallocates $100,000 from the Project Fund, line item 58300-421 to the Project Fund,
line item 58200-404 as the sole source of funds to cover $183,388 necessary for the
difference between the CRA budgeted amount of $770,000 for the Ocean Avenue
Projects and the contract amount of $953,388. A copy of the 2010-2011 budget
amendment is attached hereto as Exhibit "A".
SECTION 3. All resolutions or parts of resolutions in conflict herewith are
hereby repealed to the extent of such conflict.
SECTION 4. If any clauses, sections, other part or application of this Resolution
is held by any court of competent jurisdiction to be unconstitutional or invalid, in part or
application, it shall not affect the validity of the remaining portions or applications of this
Resolution.
SECTION 5. This Resolution shall become effective immediately upon its
passage and adoption.
PASSED AND ADOPTED BY THE BOYNTON BEACH COMMUNITY
REDEVELOPMENT AGENCY BOARD, THIS 9TH DAY OF MARCH, 2011.
BOYNTON BEACH COMMUNITY
REDEVELOPMENT AGENCY
By:
Jose Rodriguez
Chairperson
Approved as to form:
James Cherof
CRA Attorney
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_ East Side-West Side-Seaside Renaissance
CRA BOARD MEETING OF: March 9, 2011
I Consent Agenda I X I Old Business I I
New Business
Legal
I Executive Director's Report
SUBJECT: Consideration of Approval of Task Order No.2 Under Continuing Contract with Kaufman Lynn
Construction, Inc. for Ocean Avenue Projects: Boynton Harbor Marina Entry Feature, Ocean Avenue Amphitheater and
Ruth Jones Cottage Relocation for a Guaranteed Maximum Price of$953,388
SUMMARY: In January 2007 the CRA Board issued a Request for Statements of Qualifications for General
Contracting or Construction Management. Eleven responses were received and the Board selected three contracting
firms, Burkhardt Construction, Hedrick Brothers Construction and Kaufman Lynn Construction, Inc. To date, the
Agency has utilized these contractors for assistance on creating budgets and pricing of potential projects. In June
2010, Kaufman Lynn was requested to provide the Agency with proposals for pre-construction services relating to
the Boynton Harbor Marina Entry Feature, Ocean Avenue Amphitheater and Ruth Jones Cottage
RelocationlRenovation projects.
In June 2010, Kaufman Lynn was requested to provide the Agency with proposals for pre-construction services
relating to the Jones Cottage, Magnuson House and Marina Entry projects for the following scope of work:
1. Review of architectural drawings, recommendations relating to constructability and provide cost savings
methods.
2. Provide construction schedules
3. Provide detailed estimate of construction costs and recommendations in the form of cost savings to keep in
budget.
4. Provide at 100% construction documents a guaranteed maximum price.
Kaufman Lynn performed the above tasks under Task Order No. 1 of their continuing contract. Kaufman Lynn has
stated they will execute Task Order No.2 under their continuing contract for a Guaranteed Maximum Price of
$953.388 to construct the three projects as described in the 100% construction drawings. Attached is Task Order No.
2 under Kaufman Lynn's Continuing Contract for the Boards review and approval.
Attachments: 1. Request for Qualifications for General Contracting or Construction Management
2. Minutes from April 10, 2007 approving the selection of Kaufman Lynn for Continuing Contract
3. General Contracting/Construction Management/Consulting Agreement between the CRA and
Kaufman Lynn
4. Task Order No. 1 - Proposal to perform pre-construction services for Ocean Avenue projects.
5. Final project cost sheets
6. Continuing Contract Task Order No.2 for Construction Management at Risk Services for Ocean
Avenue projects with a Guaranteed Maximum Price of$953,388
FISCAL IMPACT:
Total Project Cost: $953,388
10/11 Budget: $770.000
Difference: $183,388
T:\AGENDAS, CONSENT AGENDAS,lJIONTHl.. YREPORTS\Completed Agenda Item Request Forms by Meeting\FY 2010 - 2011 Board
Meetings\03-09-11 Meeting\Kaufman lynn..doc
~~~~Y~T8~ eRA
ill East Side-West Side-Seaside Renaissance
CRA PLAN, PROGRAM OR PROJECT: Downtown Vision and Master Plan, CRA
Redevelopment Plan
RECOMMENDATIONS/OPTIONS: Approve Task Order No.2 under Continuing Contract
with Kaufman Lynn Construction, Inc. with a Guaranteed Maximum Price of$953,388.
cu;L
Vivian L. Brooks
Interim Executive Director
T:\AGENDAS, CONSENT AGENDAS, MONTHLY REPORTS\Completed Agenda Item Request Forms by Meeting\FY 2010 - 2011 Board
Meetings\03-09-11 Meeting\Kaufman Lynn.doc
1
BOYNTONBEACR
COMMUNITY REDEVELOPMENT AGENCY
REQUEST FOR
STATEMENTS OF QUALIFICATION
For
General Contracting or Construction Management
to be provided on an on-going and/or rotating basis
Background:
The Boynton Beach Community Redevelopment Agency (CRA) is seeking statements of
qualifications for qualified general contractors or construction managers for
preconstruction and construction services to be provided on an on-going and/or rotating
basis. Services desired include, but shall not be limited to, preconstruction cost
estimating, constructability analysis, and value engineering as well as construction and/or
construction management.
The CRA guides redevelopment activities that will create a vibrant downtown core and
revitalized neighborhoods within the +/- 1,650 acre district in eastern Boynton Beach.
Since adoption of the Boynton Beach 20120 Redevelopment Master Plan in 1998 and
component strategic plans in subsequent years, the redevelopment area had grown
physically and tax increment revenues have also grown tremendously.
This physical and fiscal growth 11as enabled the CRA to lU1dertake and complete projects
such as the Boynton Beach Boulevard Extension and Promenade. These projects feature
the extension of Boynton Beach Boulevard, a pedestrian and vehicular gateway linking
the Promenade to the Marina area and the Promenade pedestrian element leading
pedestrians past "Pete's Pond" Park eastward along the marina boat slips to the
Intracoastal Waterway.
This area provides the community an events area with pern1anent public accommodations
such as restrooms, water fountains, temporary stage areas, trash receptacles, shade and
seating areas. The area has several sites for public art to add attractions along the walk
with shade created from imitation "sails" of fabric providing comfort and visually tying
the Promenade look to the adjacent marina.
Other projects include the CRA's recent purchase of the 1927 High School in the Town
Square area and the Two Georges Marina along the waterfront. In partnership with the
recently selected Five Towns College from Dix Hills, New York, the CRA will help to
transform the Town Square area into a vibrant center of civic, cultural and recreational
uses as a western anchor to the downtown core, which now includes the City's WiFi
system. At the eastern end of that core area, the Two Georges Marina area includes a 24-
slip marina and office, and will ensure residents public access to waterways for
generations to come.
The CRA is also committed to affordable housing. The CRA has recently launched a
down payment assistance program to put homeownership within reach for local residents.
Up to $50,000 in interest free down payment assistance is available to qualified
individuals and families trying to buy a home within the redevelopment area. This
program is funded using State Housing Initiatives Partnership funds and is administered
through the Boynton Beach Faith Based Community Development Corporation.
Future City/CRA projects include public improvements to Wilson, Intracoastal and
Jaycees Parks, as well as the Town Square area. These projects may include public
buildings, landscape and hardscape improvements intended to enhance the public's use of
these areas. In addition, the CRA has recently approved a master developer to negotiate
for the Heart of Boynton proj ect which will include construction a mix of commercial
and residential uses with complementary public improvements needed to support the
private development.
In order to accomplish the numerous public improvement projects that are being
considered it is the CRA' s intent to select a maximum of three qualified general
contractors or construction managers (GC/CM). The CRA intends that contractors or
construction managers selected will provide on-going services on a rotating basis or other
basis as detetmined at the sole discretion of the CRA. It is anticipated that construction
projects on which the selected GC/CM may be asked to provide preconstruction and
construction services would include, but may not be limited to:
· Upgrades, reconstruction or new construction of underground andlor overhead
utilities, including undergrounding of existing overhead utilities;
· Upgrades, reconstruction or new construction of roadway and stOtm drainage
improvements;
· Streetscapes including but not limited to enhancements to pedestrian
improvements such as decorative paving, pedestrian lighting, landscaping, street
furnishings, and street graphics;
· Renovations, reconstruction or new construction of public parks and related park
improvements including but not limited to landscape, hardscape and public
buildings such as restrooms, pavilions, etc.;
· Renovation, restoration andlor remodeling of existing buildings of an historic
character;
· Renovations, reconstruction or new construction of residential structures for
affordable housing purposes; and,
· Other projects at the sole and absolute discretion of the CRA.
Preconstruction and construction services that may be needed include, but may not be
limited to:
· Cost estimating. Throughout the design process for conceptual plans, preliminary
designs and construction doclunents as may be prepared by CRA design
consultants, the GC/CM would provide construction cost estimates for budgetary
purposes as well as for construction.
2
. Constructabilitv analysis. Throughout the design process for conceptual plans,
preliminary designs and construction documents as may be prepared by CRA
design consultants, the GC/CM would provide analysis of the various aspects of
the designs to ensure that the projects are constructable in accordance with the
CRA's development program, and/or identify construction issues and make
recommendations for adjustment. .
. VaIue engineering. Throughout the design process the GC/CM would provide
detailed evaluation of the proposed preliminary designs and construction
documents and make reconunendations on appropriate changes that would assist
in controlling project costs. .
. Construction and/or construction management. GC/CM will be responsible for
construction of improvements including but not necessarily limited to the types of
projects described above with the specific scope of work, method of contracting
and compensation to the GC/CM to be determined at that time.
The CRA will consider statements of qualifications from firms offering services on a
single category of services as well as combinations of any or all services noted above.
Statements of Qualification
Interested firms shall provide the following information in the following format:
Section I - Cover letter - Section I shall include a cover letter which will provide a brief
summary of the firm, what category(ies) of services the firm is desirous of being
considered for, and who the principal point of contact will be for the services. It is the
desire of the CRA to have one (1) point of contact for any and all services.
Section II - Firms qualifications - Section II shall provide a detailed description of the
firm in relationship to the services being offered. This section shall include:
. A detailed description of experience and qualifications for the services being
offered including but not necessarily limited to:
o Years providing the services being proposed.
o References for similar services being proposed.
o List of projects.
. Organizational chart listing the principal point of contact, key professional staff,
and other key support staff who are anticipated to work on eRA projects, and
illustrating how the company is organized to provide the services being offered.
. Any licenses, certifications or other related professional credentials held by the
company, including a certificate of good standing from the Secretary of State,
Division of Corporations.
. Information on professional liability, workers compensation and other appropriate
insurances carried by the company.
. Bonding capacity.
. List and description of any outstanding claims against the company.
3
· List and description of any projects from which the company has been relieved of
duty.
· Other appropriate information as detennined by the company.
Section III - Key personnel Qualifications - Section III shall provide a detailed
description of the individuals and their qualifications in relationship to the services being
offered. TIus section shall include:
· A list of each person anticipated to provide service for the eRA under this
solicitation and their relevant experience including: .
o Education.
o Years of experience.
o References for similar services being proposed.
o List of projects.
o Any licenses, certifications or other related professional credentials held
by the individual.
o Other appropriate infonnation as determined by the company.
Companies which offer their services for any category of service noted above
acknowledge that the personnel described in their statements of qualification are an
important component to selection. Further, it is the obligation of any firm selected to
immediately notify the CRA if one or more of the key personnel become unavailable to
work on CRA projects on either a pennanent or temporary basis. Removal, replacement
and/or substitution of any key personnel may cause the company to be disqualified from
providing service to the CRA at the CRA' s sole and absolute discretion.
Section TV - General Business Terms - Section IV shall provide the general business
terms under wluch the company typically provides services. Those general business
terns shall include:
· Typical method of contracting - the company shall provide information on their
typical method of contracting for preconstlUction and construction services, and if
the company utilizes standard American Institute of Architects (AIA) contracts.
For preconstruction services, companies offering their qualifications for
consideration agree to provide services, as appropriate, under the following fee
structures:
o Lump sum fee. When a scope of services can be clearly outlined and the
level of effort for those services can be determined, the CRA shall require
the consultant to perform said services for a lump sum fee based on an
anticipated level of services applied to the hourly rates required herein.
o Hourly/Not-to-Exceed. When a scope of services cannot be clearly
defined in terms of level of effort or the level of effort of a defined scope
of services cannot be precisely defined, tile CRA will consent to an hourly
billing on a not-to-exceed dollar amount basis. The CRA will require that
when billings reach 75% of the not-ta-exceed amotmt, the consultant must
4
notify the CRA in writing and provide an estimate of the level of effort to
complete the work assigned. At the CRA's sole and absolute discretion
the services may be allowed to continue or the CRA may elect to
terminate the services and the firm if sufficient progress has not been
made on the project.
Construction services companies offering their qualifications must acknowledge
that it is the CRA's preference to utilize methods of contracting including. the
Cost Plus, the CM at Risk with a GMP or negotiated contract.
· Contract form - the company shall provide their standard form written contract
which is used with other similar construction services. The CRA shall consider
the standard form and at the CRA's sole and absolute discretion may reject or
revise certain provisions if they are detemlined to be unacceptable, or may
propose its own contract.
· Term and Termination - the CRA intends to enter into agreements with selected
firms for up to one (1) year with the option for up to four (4) annual renewals
subject to the mutual agreement of both parties. Services may be terminated by
either party with 30-days written notice to the other.
Selection Process:
All statements of qualification are encouraged to be brief and to the point. The CRA
plans to review the responses and may conduct interviews prior to establishing a short list
of fmns for selection. Statements of qualification will be reviewed, rated and ranked
based on the following:
· Firms qualifications
· Qualification of key personnel
· Acceptability of fee structure for preconstmction services
· Acceptability of contracting method for construction services
The eRA reserves the right to consider any and all information provided by the company
in its statement of qualifications and to accept or reject any or all statements at the CRA's
sole and absolute discretion. Interested 'parties are required to submit one (l) unbound
original and 15 copies of thei! statements of qualification on or before February 28, 2007,
3 :00 pm to:
Lisa Bright, Executive Director
Boynton Beach CRA
915 South Federal Highway
Boynton Beach, FL 33435
5
Timeline:
January 28,2007
February 9, 2007
February 28, 2007
March 13, 2007
Publication of Notice
Voluntary Pre-proposal meeting for interested parties at 9:00
Proposal packages due to CRA office by 3:00 pm
Selection of short list of proposers by CRA Board of Directions
Facsimile transmissions and electronic submissions will not be accepted. Any responses
received by the CRA after 3:00 pm on February 28, 2007 will be rejected and returned,
unopened, to the proposer. Any question regarding whether a submittal has been
submitted timely shall be resolved by reference to the time kept by the eRA's
receptionist or delegated representative for the receipt of submittals.
The CRA staff will review the statements of qualification and intends to short list two or
three firms, but may select more or less at staff's sole and absolute discretion. Upon
short-listing, staff may request that its board of directors approve preconstruction services
agreements to be executed with each finll selected outlining the general services to be
provided, the rates of pay and method of providing services. This preconstructioll
services agreement will not serve as a notice to proceed but will provide the basis for
future notices to proceed on specific projects. Specific projects will be contracted for
only after nmds are appropriated (as needed) and a written notice to proceed is issued.
Contacts:
All conespondence and requests for information regarding the request for proposals,
should be directed to:
Vivian L. Brooks
CRA Planning Director
Boynton Beach CRA
915 S. Federal Highway
Boynton Beach, FL 33435
E-mail brooksvi@ci.boynton-beach.fl.us
Telephone: (561) 737-3256
Protests:
Any and all decisions by the CRA Board to modify the schedule described herein,
requests for additional information, reject insufficient or unclear proposals, formulate an
objective point system for review, rate and rank proposals, negotiate agreements,
abandon negotiations, approve agreements, etc., shall be at the CRA's sole discretion and
no protests whatsoever shall be considered by the CRA Board. Submittal of a reply to
this RFP on the part of any and all proposers constitutes acceptance of this policy.
Public Records
6
Florida law provides that records of a public agency shall at all times be open for
personal inspection by any person. Section 119.01, F.S., The Public Records Law.
Information and materials received by the CRA, in connection with a submittal shall be
deemed to be public records subject to public inspection. However, certain exemptions to
the public records law are statutorily provided for in Section 119.07, F.S. If the Proposer
believes any of the infonnation contained in its Submittal of Proposals is exempt from the
Public Records Law, then the Proposer must in its response specifically identify the
material which is deemed to be exempt and cite the legal authority for the exemption and
the CRA will evaluate the material to determine whether it is exempt from the Public
Records Law. Otherwise. the CRA will treat all materials received as public records:
Public Entity Crimes
"A person or affiliate who has been placed on the convicted vendor list following a
conviction for a public entity Clime may not submit Proposals, bids or qualifications (as
applicable), in response to a solicitation for said products/services in support of a public
entity, and may not submit qualifications, a proposal or bid on a contract with a public
entity for the construction or repair of a public building or public work, may not submit
bids on leases of real property to a public entity, may not be awarded or perform work as
a contractor, supplier, subcontractor, or consultant tmder a contract with any public
entity, and may not transact business with any public entity in excess of the threshold
amolUlt provided in Section 287.017, for CATEGORY TWO for a period of 36 months
from the date of being placed on the convicted vendor list."
Drug Free Workplace Certification
All Proposers must complete and sign the attached "Drug Free Workplace Certification
by Vendor", and submit it with their Proposals. Failure to do so may result in rejection of
the proposal.
7
CERTIFICA TION OF DRUG FREE WORKPLACE PROGRAM
I celiify the finn of responding to this RFP
maintains a drug-free workplace program, and that the following conditions are met:
(1) We publish a statement notifying employees that the unlawful manufacture,
distribution, dispensing, possession, or use of a controlled substance is prohibited in-the
workplace; and specifying that actions will be taken against employees for violations of
such programs. .
(2) We inform employees about the dangers of drug abuse in the workplace, the
company's policy of maintaining a drug-f!'ee workplace, any available dmg counseling,
rehabilitation, and employee assistance programs, and the penalties that may be imposed
upon employees for drug abuse violations.
(3) We give each employee engaged in providing the commodities or contractual services
included in this RFP a copy of the statement specified in Subsection (1).
(4) In the statement specified in Subsection (1), we notify the employee that, as a
condition of working in the commodities or contractual services covered under this RFP,
they will abide by the terms of the statement; and will notify the employer of any
conviction of, or plea of guilty or nolo contendere to any violation of Chapter 893 or any
controlled substance law of the United States or any state, for a violation occuning in the
workplace no later than five (5) days after such conviction,
(5) We impose a sanction on, or require the satisfactory participation in a drug abuse
assistance or rehabilitation program if such is available in the employee's community, by
any employee who is convicted.
(6) We make a good faith effort to continue to maintain a drug-free workplace through
implementation of this section.
As the person authol1zed to sign the statement, I certify that this finn complies fully with
the above requirements.
Authorized Signature:
Date
Name & Title (typed)
8
2
Meeting Minutes
Community Redevelopment Agency
~ton Beach, florida
April 10, 2007
Ms. Horenburger darified and emphasized the Intent of her motion was to proceed with the
acquisition in the corridor as It was the CRA's responsibility.
~
A vote was taken on the motion and unanimously passed.
IX. Old Business
A. Approval of a Transit Study Contract between CRA and PBS&J.
(Chair nllman passed the gavel to VICe Chair Norem and left the dais at 7:28 p.m.)
Vivian Brooks, Planning Director, explained the County requires a transit study and this Item
related to a Transportation Concurrency Exception Area (TCEA) overlay area in the downtown.
The contract would allow the study to be conducted and completed within six months. The
report would then be forwarded to the County so they would be compliant with the TCEA
standards.
Motion
Ms. Heavilin moved to approve. Ms. Horenburger seconded the motion.
The County's letter was unclear on whether the CRA would need to go back and revisit the
transit plan, contingent on the amount of development that occurs. Currently, there was not
enough development to create an Impact, but the County still wanted the study. An hourly rate
was attached to the contract in case the Issue needed to be revisited.
~
There was a vote on the motion that passed 6-0 (Chair nllman not present for the vote).
B. Approval of Recommended General Contracting firms to Negotiate a Continuing
Contract.
Ms. Brooks announced they received 11 responses to their solicitations. There was work that
could be done on the marina and It was time consuming to go out to bid each time. The CRA
needed contractors to oversee different specialties and was seeking to enter Into a one-year
contract with three firms to be used on a rotating basis with the ability of renegotiating an
additional tour years. They learned, with Burkhardt Construction, that doing so was an
expensive process. The CRA was considering several projects for the area, which predicated the
need for the other contractors.
Chair nllman retumed to the dais at 7:.30 p.m.
7
Meeting Minutes
Community Redevelopment Agency
~nton Beach, florida
April 10,2007
Ms. Br9<>ks ~iewedH~rtck ~ ..~" bad ..f1i$tOric . ~ce ~nd were
leade~hlp inEr.'9Y and EnvironmentalOeSJg'n (lEB>S) certified, and kat:lfman 'and Lynn, Inc.
had munidpalex,:Jei'lehce.
Motion
Vice Chair Norem moved to approve. Ms. Heavilln sec:onded the motion.
Rev. Chaney asked if smaller, minority contractors were considered. Ms. Brooks responded one
minority contractor applied and the Information was Included In the RFP as part of the criteria to
use local labor. Mr. Sims agreed with Rev. Chaney and thought minority contractors should be
used when possible.
Ms. Bright explained the renewal would be automatic provided there were no performance
issues. Chair Tillman did not want the renewals to be automatic. He thought without minority
partidpatlon there would be bad feelings.
Dale Hedrick, Hedrick Brothers Construction, addressed the board and Indicated he had
minorities on board and throughout his company. He had worked for the school board, which
required minority participation and had Milton Grey, who uses several minority subs. He
reported they met all of the minority requirements.
Ms. Usa King, of Kaufman lynn, Inc. highlighted her finns minority participation. They made
it a point to use local subcontractors and met all of the minority requirements.
~
Motion unanimously passed.
C. Presentations and Selection by Top Three Proposers for the Downtown Master Plan
Visioning & Implementation
Ms. Brooks reported she had received 19 proposals. A committee comprised of Mathew Barnes,
Planner for O1arlle Slemen In Boca Raton; Quintus Greene, Development Director; Mike Rumpf,
Planning Director; Melissa Hudson of Lennar Homes and herself reviewed the proposals. Three
firms were short-listed for consideration. They were EDAW Inc, Peter Smith & Company and
Torti Gallas.
Ellen Heath, Principal with EDAW made the first presentation. She explained the firm was an
international firm with extensive experience and colleagues based In Florida. Ms. Heath
introduced her team and reviewed her presentation, which Is on file in the Oty Clerk's Office.
Ms. Heath Indicated they were looking to build on the vision for the downtown area. She noted
market reaflty was an Important part of the project, as was appropriate density.
Ms. Heath explained the firm would work in a partnershIp arrangement with the CRA and
communication was the key. She emphasized the firm used many different techniques
8
3
GENERAL CONTRACTING/CONSTRUCTION MANAGEMENTfCONSUL TING
AGREEMENT
&THl IS AN AGREEMENT ("Agreement"), entered into this lday of
A' I", ,between the Boynton Beach Community Redevelopmel1l Agency,
herelnafte referred to as "CRA", and Kaufman lynn, Inc. authorized to do business in
the State of Florida, hereinafter referred to as the "CONSULTANT,"
WHEREAS, the CRA issued a Request for Statements of Qualifications
on January 28,2007; and
WHEREAS, CONSULTANT timely submitted its response to the Request
for Statements of Qualifications; and
WHEREAS, the CRA has investigated the qualifications of the
CONSULTANT to perform the WORK herein contemplated and found them
satisfactory; and
WHEREAS, the CRA Board selected CONSULTANT, along with two
other general contracting/construction management consultants, at its regularly
scheduled meeting on March 13, 2007; and
WHEREAS, the eRA agrees to retain the CONSULTANT for general
contracting/construction management services on various CRA projects on an
ongoing and/or rotating basis for the time period described herein; and
WHEREAS, as a result of the aforementioned, the CRA agrees to enter
into this Agreement with the CONSULTANT; and
NOW, THEREFORE, in consideration of the premises and the mutual
covenants herein contained, the CRA agrees to employ the CONSULTANT and
the CONSULTANT agrees to perform all general contracting and/or construction
management services in connection with various CRA projects as needed, for
the total duration of this Agreement, and any and all extensions, upon the
following terms and conditions; namely:
1. SCOPE OF SERVICES.
A. The following services may be requested by CRA on a continuing or
rotating basis:
1. Cost estimating.
2. Construction analysis.
3. Value engineering.
4. Construction and/or construction management.
B. CONSULTANT may be called upon for general contracting or
construction management services for the following types of CRA projects:
1. Upgrades. reconstruction or new construction of undergrounds and/or
overhead utilities, including under-grounding of existing overhead utilities.
2. Upgrades. reconstruction or new construction of roadway and storm drainage
improvements.
3. Streetscapes Including but not limited to enhancements to pedestrian
improvements such as decorative paving, pedestrian lighting, landscaping.
street furnishings, and street graphics.
4. Renovations, reconstruction or new construction of public parks and related
park improvements Including but not limited to landscape. hardscape and
public buildings such as restrooms, pavilions, etc.
5. Renovation, restoration and/or remodeling of existing buildings of an historic
character.
6. Renovations, reconstruction or new construction of residential structures for
affordable housing purposes.
7. Other projects at the sole and absolute discretion of the CRA.
2. GENERAL PROVISIONS.
A. For each CRA project upon which CONSULTANT'S services are
requested, CONSULTANT and CRA will negotiate a separate agreement to include a
Scope of Work and/or Notice to Proceed.
B. The CRA reserves, at all times, the right to perform any and all general
contracting and/or construction management services or work with other general
contractors and/or construction managers. This Agreement does not confer on the
CONSULTANT any exclusive rights to CRA work, nor does it obligate the CRA in any
manner to guarantee work for the CONSULTANT. The CONSULTANT may submit
proposals for any professional services for which proposals may be publicly solicited by
the CRA outside of this Agreement.
C. The parties agree that any future agreement for each specific eRA
project will incorporate a fee structure, as outlined in the applicable Request for
Statements of Qualifications, based upon a Lump Sum Fee or an Hourly/Not to Exceed
Fee.
D. The CRA agrees that it will furnish to the CONSULTANT plans and other
relevant available data in the CRA files pertaining to the work to be performed as soon
as possible after issuance of each Notice to Proceed.
E, The CONSULTANT will submit a proposal upon the CRA's request prior
to the issuance of a Scope of Work and/or Notice to Proceed, No payment will be made
for the CONSULTANT's time and services in connection with the preparation of any
such proposal. Fees for pre-construction and construction services shall be negotiated
separately for each project.
F. The CRA agrees to designate, when necessary, a representative who
shall examine the documents submitted by the CONSULTANT and shall render
decisions pertaining thereto promptly, to avoid unreasonable delay in the progress of the
CONSULTANTS services.
3. TERM AND TERMINATION. The term of this Agreement shall commence
upon the Effective Date of this Agreement and shall be for one (1) year and shall
automatically renew for four (4) additional one (1) year terms unless either party
provides written notice of its desire not to extend the applicable term at least thirty (30)
days prior to the expiration date.
4. TIMING OF THE WORK. The services to be rendered by the CONSULTANT
for any work shall be commenced upon written Notice to Proceed from the CRA and
shall be completed within the time based on reasonable determination, stated in the
Notice to Proceed.
5. COMPENSATION.
The CONSULTANT agrees to negotiate a lump sum fee (when a scope of
services can be clearly outlined and the level of effort and cost of the work for those
services can be determined, and must include all wages, benefits, overhead, profit,
subconsultant fees, and expenses for the WORK and wilt not be increased unless there
is a change in the Scope of Work), an hourly/not-to-exceed fee (when a scope of
services cannot be clearly defined in terms of level of effort and cost of work or a defined
scope of services cannot be precisely defined, subject to the requirement that when
billings reach 75% of the not-to-exceed amount, the CONSULTANT must notify the CRA
in writing and provide an estimate of the level of effort to complete the work assigned
and it is within the CRA's sole and absolute discretion as to whether to continue
CONSULTANT'S services or terminate the services), or a combination of the two. Upon
agreement of a fee, the Executive Director of the CRA or his or her designee will issue a
written Notice to Proceed to the CONSULTANT,
6. PAYMENT.
The CRA will make monthly payments or partial payments to the CONSULTANT
for all authorized WORK performed during the previous calendar month within thirty
(30) days of submittal of each invoice. The CONSULTANT shalt submit invoices to the
Executive Director or his or her designee and provide the following information:
1, The amount of the invoices submitted shall be the amount due for all WORK
performed to date as certified by the CONSULTANT.
2. The request for payment shall include the following information:
a_ Total Contract amount.
b. Percent of work complete.
c. Amount earned.
d. Amount previously billed.
e. Amount due this invoice.
f. Summary of work done this billing Period.
g. Invoices number and date.
h. Purchase Order number.
7. OWNERSHIP OF DOCUMENTS
All reports and reproducible plans, and other data developed by the
CONSULTANT for the purpose of this Agreement shall become the property of the CRA
without restriction or limitation in connection with the owners use and occupancy of the
project. Reuse of these documents without written agreement from the CONSULTANT
shall be at the CRA'S sole risk and without liability and any legal exposure to the
CONSULTANT.
8. COURT APPEARANCES, CONFERENCES AND HEARINGS
Nothing in this contract shall obligate the CONSULTANT to prepare for or appear
in litigation on behalf of the CRA, except in consideration of additional compensation,
and except for any dispute arising out of this contract. The amount of such
compensation shall be mutually agreed upon receipt of written authorization from the
Executive Director prior to performance of a court appearance and conference.
The CONSUL T ANT shall confer with the eRA at any time during construction of
the Improvements herein contemplated as to interpretation of plans, correction of errors
and omissions and preparation of any necessary plan thereof to correct such errors and
omissions or clarify without added compensation.
9. AUDIT RIGHTS
The CRA reserves the right to audit the records of the CONSULTANT related to
this Agreement at any time during the execution of the WORK included herein and for a
period of one year after final payment is made.
10. SUBLETTINGI ASSIGNING
The CONSULTANT shall not sublet, assign. or transfer any WORK under this
Agreement without the prior written consent of the CRA.
11. DEFAULT
In the event either party falls to comply with the provisions of this Agreement. the
aggrieved party may declare the other party in default and notify such party In writing,
providing a reasonable time to cure the default but no less than seven (7) days unless it
is an emergency situation. In the event the default is not timely cured, the Agreement
may be terminated and the CONSULTANT will only be compensated for any
professional services actually performed. In the event partial payment has been made
for such professional services not performed, the CONSULTANT shall return such sums
to the CRA within ten (10) days after notice that said sums are due.
12. INSURANCE AND INDEMNIFICATION
The CONSULTANT shall not commence WORK on this Agreement until it has
obtained all insurance required under this Agreement and such insurance has been
approved by the CRA. All insurance policies shall be issued by companies authorized to
do business under the laws of the State of Florida, The CONSULTANT shall furnish
Certificates of Insurance to the CRA's representative. The Certificates shall clearly
indicate that the CONSULTANT has obtained Insurance of the type, amount, and
classification as required for strict compliance with this Agreement and that no material
change or cancellation of the insurance shall be effective without thirty (30) days prior
written notice to the CRA's representative. Compliance with the foregoing requirements
shall not relieve the CONSULTANT of its liability and obligations under this Agreement.
CONSULTANT shall, at its sole expense, agree to maintain in full force and
effect at all times during the life of this Contract, insurance coverages, limits, including
endorsements, as described herein. The requirements contained herein, as well as
CRA's review or acceptance of insurance maintained by CONSULTANT, are not
intended to and shall not in any manner limit or qualify the liabilities and obligations
assumed by CONSULTANT under the contract. By virtue of this Agreement, CRA's
indemnification obligations shall not exceed the statutory limits described within Section
768.28, Florida Statutes, and eRA does not otherwise waive its sovereign immunity
rights.
A. PROFESSIONAL LIABILITY
CONSULTANT shall agree to maintain Professional Liability, or equivalent Errors
& Omissions liability at a limit of liability not less than $1,000,000 Per
Occurrence. When a self-insured retention (SIR) or deductible exceeds $25,000
the CRA reserves the right, but not the obligation, to review and request a copy
of CONSULTANT'S most recent annual report or audited financial statement. For
policies written on a "Claims-Made" basis, CONSULTANT warrants the
Retroactive Date equals or precedes the effective date of this contract
(Certificate of Insurance shall soecifv: Retfo date - Full oTior acts coveraae
80D/iesJ. In the event the policy is canceled, non- renewed, switched to an
Occurrence Form, retroactive date advanced; or any other event triggering the
right to purchase a Supplemental Extended Reporting Period (SERF) during the
life of this Contract, CONSULTANT shall agree to purchase a SERF with a
minimum reporting period not less than three (3) years. CONSULTANT shall
agree this coverage shall be provided on a primary basis. The Certificate of
Insurance must indicate whether coverage is written on an occurrence or claims-
made basis and must indicate the amount of any SIR or deductible.
B. COMMERCIAL GENERAL LIABILITY. AUTOMOBILE LIABILITY AND
WORKERS' COMPENSATION
CONSULTANT shall agree to maintain Commercial General Liability at a limit of
liability not less than $1,000,000 Each Occurrence.
CONSULTANT shall agree to maintain Business Automobile Liability at a limit of
liability not less than $1,000,000 Each Occurrence for all owned, non-owned and
hired automobiles. In the event CONSULTANT does not own any automobiles,
the Business Auto Liability requirement shall be amended allowing
CONSULTANT to agree to maintain only Hired & Non-Owned Auto Liability. This
amended requirement may be satisfied by way of endorsement to the
Commercial General Liability, or separate Business Auto coverage form.
CONSULTANT shall agree this coverage shall be provided on a primary basis.
CONSULTANT shall agree to maintain during the life of this Agreement,
Workers' Compensation Insurance and Employer's Liability in accordance with
Florida Statute Chapter 440. CONSULTANT shall agree this coverage shall be
provided on a primary basis.
c. UMBRELLA OR EXCESS LIABILITY
If necessary, CONSULTANT may satisfy the minimum limits required above for
either Commercial General Liability, Business Auto Liability, and Employer's
Liability coverage under Umbrella or Excess liability. The Umbrella or Excess
Liability shall have an Aggregate limit not less than the highest 'Each
Occurrence" limit for either Commercial General Liability, Business Auto Liability,
or Employer's liability. The CRA shall be specifically endorsed as an "Additional
Insuredn on the Umbrella or Excess Liability, unless the Certificate of Insurance
notes the Umbrella or Excess Liability provides coverage on a "Follow-Form"
basis.
D. ADDITIONAL INSURED
CONSULTANT shall agree to endorse the CRA as an Additional Insured to the
Commercial General Liability. The Additional Insured endorsement shall read
"Boynton Beach Community Redevelopment Agency." (Project
). CONSULTANT shall agree the Additional Insured
endorsements provide coverage on a primary basis.
E. WAIVER OF SUBROGATION
CONSULTANT shall agree, by entering into this Contract, to a Waiver of
Subrogation for each required policy,. When required by the insurer, or should a
policy condition not permit an Insured to enter into a pre-loss agreement to waive
subrogation without an endorsement, then CONSULTANT shall agree to notify
the insurer and request the policy be endorsed with a Waiver of Transfer of
Rights of Recovery Against Others, or its equivalent. This Waiver of Subrogation
requirement shall not apply to any policy, which a condition to the policy
specifically prohibits such an endorsement, or voids coverage should
CONSULTANT enter into such an agreement on a pre-loss basis.
F. CERTIFICATE OF INSURANCE
Immediately following the Effective Date of this Agreement, CONSULTANT shall
agree to deliver to the CRA a Certificate(s} of Insurance evidencing that all types
and amounts of insurance coverages required by this Agreement have been
obtained and are In full force and effect. Such Certificate(s) of Insurance shall
include a minimum thirty (30) day endeavor to notify due to cancellation or non-
renewal of coverage.
G. RIGHT TO REVIEW
CRA reserves the right to review, modify, reject or accept any required policies of
insurance, including limits, coverages, or endorsements, herein from time to time
throughout the life of this Contract. CRA reserves the right. but not the obligation.
to review and reject any insurer providing coverage because of its poor financial
condition or failure to operate legally.
H. INDEMNIFICATION
The CONSULTANT shall indemnify and save harmless and defend the CRA, its
officers. agents, servants, and employees from and against any and all claims,
liability, damages, losses, and/or causes of action including reasonable
attorneys' fees, which may arise from any breach of contract or any negligent act,
error or omission of the CONSULTANT its officers, employees, agents. sub-
consultants or anyone acting pursuant to their authority and control in the
performance of this Contract. The indemnity obligations of this Agreement shall
not apply to damages or injury to the extent caused by the negligence or willful
misconduct of eRA, or its officers, employees, agents, or third parties or anyone
acting pursuant to their authority and control. However, any indemnification
obligation of the CRA shall not exceed the statutory limits described within
Section 768.28, Florida Statutes, and CRA does not otherwise waive its
sovereign immunity rights.
13. CODES, ORDINANCES AND LAWS.
The CONSULTANT agrees to abide and be governed by all CRA. County, State
and Federal codes, ordinances and laws which may have a bearing on the WORK
involved on this project. Unless otherwise provided, this Agreement shall be governed by
the law of the principal place of business of the CONSULTANT.
14. ENTIRETY OF AGREEMENT.
This writing embodies the entire Agreement and understanding between the
parties hereto, and there are no other Agreements and understandings, oral or written,
with reference to the subject matter hereof that are not merged herein and superseded
hereby.
15. MODIFICATION OF AGREEMENT.
No alteration, change, or modification of the terms of this Agreement shall be
valid unless made in writing and signed by both parties hereto, upon appropriate action
by the CRA.
16. MEDIATION.
The parties to this Agreement desire to avoid the expense and delay caused by
the filing of lawsuits. Therefore, It is agreed that in the event of any dispute or
disagreement between the parties that a jointly-selected mediator shall conduct a
mediation prior to the filing of a lawsuit in an effort to resolve the issue(s) with each party
to pay 50% of the mediator's fees.
17. VENUE.
In the event any disputes arising out of this Agreement cannot be worked out by
mediation, any and all lawsuits shall be filed in the 15th Judicial Circuit Court in and for
Palm Beach County, Florida or the Southern District Court of Florida If filed In U.S.
Federal Court.
18. ATTORNEY'S FEES AND COSTS.
Should it be necessary to bring an action to enforce any of the provisions of this
Agreement, reasonable attorney's fees and costs, including those at the appellate level.
shall be awarded to the prevailing party.
19. COUNTERPARTS.
This Agreement may be executed in one or more counterparts, each of which
shall be deemed an original, but all of which together shall constitute one and the same
instrument.
20. PRIOR AGREEMENTS.
Any prior agreements between the parties that are in conflict with the provisions
contained herein are, to the extent of any such conflict, hereby superseded and repealed
by this Agreement.
21. NON.OISCRIMINA TION.
The CONSULTANT warrants and represents that all of its employees are treated
equally during employment without regard to race, color. religion. sex, age, or national
origin.
22. SEVERABILITY.
If any term or provision of this Agreement, or the application thereof to any
person or circumstance shall, to any extent, be held invalid or unenforceable, the
remainder of this Agreement or the application of such terms or provisions, to persons or
circumstances other than those as to which it is held invalid or unenforceable, shall not
be affected, and every other term and provision of this agreement shall be deemed valid
and enforceable to the extent permitted by law,
23. ASSIGNMENT OF SUBCONTRACTORS.
The CONSUL T ANT reserves the right to assign subcontractors with reasonable
prior notice to the CRA Executive Director to this project to insure the quality of the job
as well as on-time completion. However, the CONSULTANT shall remain responsible for
the completion of the terms of this Agreement.
24. NOTICE.
All notices required in this Agreement shall be considered delivered when
received by certified mail, return receipt requested, or personal delivery and if
sent to the CRA, shall be mailed to:
Lisa A. Bright, CRA Executive Director
Boynton Beach Community Redevelopment Agency
915 S. Federal Highway
Boynton Beach, FL 33435
With a copy to:
Kenneth G. Spillias, Esq.
Lewis, Longman & Walker, P.A.
1700 Palm Beach Lakes Boulevard, Suite 1000
West Palm Beach, FL 33401
If sent to the CONSULTANT, shall be mailed to:
Kaufman Lynn, Inc., General Contractors
Gregg Paley. Director of Administration
622 Banyan Trail, Suite 300
Boca Raton, Florida 33431
25. PUBLIC ENTITY CRIMES SWORN STATEMENT.
The CONSULTANT, by its execution of this Agreement, acknowledges and
attests that neither the CONSULTANT, nor any of its suppliers, subcontractors,
or consultants who shall perform work which is intended to benefit the CRA, is a
convicted vendor or, if the CONSULTANT or any of its affiliates has been
convicted of a public entity crime, a period longer than 36 months has passed
since that person was placed on the convicted vendor list. CONSULTANT further
understands and accepts that this Agreement shall be either voidable by the
CRA or subject to immediate termination by the CRA, either in the event there is
any misrepresentation or lack of compliance with the mandates of section
287.133, Florida Statutes. CRA, in the event of such termination, shall not incur
any liability to CONSULTANT for any work or materials furnished,
26. EFFECTIVE DATE.
This Agreement shall be effective as of the last date It has been executed by all
parties.
By authority of the CRA Board
BOYNTON BEACH COMMUNITY
REDEVELOPMENT AGENCY
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4
KL
KAm'MAN I~YNN
r.i1Nr.f!.rCCOliTn:\r.rOiiil
622 OOIlY<1Il r'Oll, Suite 300 I now Rolon I FL, 33-131
PII: 561.361.6700 I fX: 561.361.6979
June 30, 2010
Boynton Beach eRA
AUn: Michnel Simon, Development Director
915 South Federal Highway
Boynton Beach, Floridn 33435
&'1"{;,,
Project :"Hnrbor Marina Occon A vcnue Entry FClllure
Mr. Simon:
Thank )'OU for providing us the opportunity to Sllbmit this Proposal fol' Prc-Coml'lmclioll Sel'vlces for
the above referenced project. Under the terms of this proposal we will provide the pre-constl1lctioll
services during l\ period to be determined at our initial meeting with you and the appropriate project
stakeholders along wilh your selected design leam. Our tolal (Jmlnmteed Maximum Price fol'
Preconstmction Services fol' the progl'nll1 is $2,000.00. The stnted proposal costs include nlllnbol' and
material associated with preCOtlstl'llction scrvices mInting 10 Ihill pmject and includes the following
listed basic services and or delivcrablcs as required tllHll'cqucsted,
A. Review of dmwings and provide recolllmendations relating to COllstnlctabijjty, materials,
means and methods of constl'uction nlld provide cost sllvings methods ns nt.'lY be required to
achieve slated "Owner's" budgets.
B. l)rovidc Project COllstl'l1ction Schedules illtegmlecl with the "Owner's" nnd the "Owner's"
Design Pro'fcssionals schedules Ilnd provide updates as may be required.
C. Provide detailcd estimate of constructioll costs and provide recommendations in the for111 of
cost savings methods for revicw and acceplance by (he "Owner" ill (he event th"t the cost may
exceed the stated conlltruction budgets set f0l1h by Ihc "Owncr".
D. Pmvidc a constll1ction phase schedule find staging logistics pl(m as may be required.
E. Pl'Ovide final bid process involving subcontractor pre-C]\lntiftCfltioJl, public ndvel,tisemenl of
notice and schedules as required.
F. AUencl all meeting as may be required. requested and 01' scheduled.
G. Provide for review find "Owllcr's" finnl acccptnncc fl "Finol" Cost GMP proposal at 100%
Consll'l1ctioll Documents pursuanl 10 the activities flS listed herein.
Duc to 1he compressed schedule requiremenls of this project we propose thot Ihe cost fo!' these
services be invoiced in 2 paymcnts flS follows;
wl'fw.kou'moolYllll.COI1l
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Pl'c-Coustl'1lctio 11 Cotttm cto IW COTllj1e(/.wrt iou/Paymeltts:
The Pre.Construction Contlllctor's compensation for nil Pre-Construction Services requircd by this
proposal is fllump slim amount, billable on cOlllplcliollllnc1 is outlined CIS rol1ows:
Schedule of Values
I.
Schematic Design Development Budget;
$1 ,500.00
a) Line Item Cosl Breakdown (Esfimntc 1)
b) 1st COllstlllctnuility Rcview / VE Recommendations
c) AtlendOllce at Team mectings <IS requested
II. Guaranteed MnxinHun Price;
n) Subcontructol' Solicitntioll
b) 100% CD GMP Estimate and Prcscl\talion
c) 100% CD VB Recommendations
d) Prepnre and Presentation orGMP proposal
c) Prc<\l1nlitication / Negotiation of Subeonlractors
$500,00
Pt'CColIstl'lIcfion Serviccs Totnl (Lump Sum)
$2,000.00
It is expressly understood tht\t thc Prcconstntction Contractor is nol a design or engineering consultant.
All info1'll1l1tion provided to the Owner, lindeI' this agrccment, is provided for their lIse in detcrmininB
project feasibility and economics. All Profcssionnl Design and Enginccring mc specifically excluded
from this ngreemenl. Any solutions or v<lltlc engineering suggestions proposed by Kallfimm Lynn Inc.
General Contmctors mc offered ill good faith with the t111dcrstfmdinf!, that it is the Owncr's design
l)l'ofessionnl's responsibility to insure eomplinnce with applicnble codes nncl consistency with design
intent.
Please review this Scope ofPrcconstruclion Services ns it relates 10 the lIoove referenced
project nml feel free to cnll me with nny CJuestions you milY have,
Respectfully Submitted,
~/,v;.v{" ,- ~/,..,.. .....
Bruce Cavossn
Vice President
Cc: Michael!. Kllllfmnn, Prcsident
Ron Zeigel, Senior Estinultor
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KL
KAUl~I\fAN LYNN
(;t:Nf.iiICcflnJi:'\r.tltiIS
622 Banyon Trail, Svi1e 300/ Boca Rolon / Fl, 33431
PH; 561.361.6700 I fX 561.361.6979
June 1,2010
Boynton Beach eRA
AUn: Michael Simon, Development Director
915 South Federal Highway
Boynton Beach, Florida 33435
Project: Historic Cottage Relocation (Ocean Ave & SE 4lh Street)
Mr. Simon:
Thank you for providing liS the opportunity to submit this Pl'oposnfjol' PI'e-Collstl'llctioll Sel'vices for
the above referenced project. Under the tcrllls of this proposal we will provide the pre-construction
services during a period to be determined at OUl' initial meeting with you and the appropriate project
stakeholders along with your selected design team. Our total Guaranteed Maximum Price for
Preconstr1Jction Services for the program is $2,000.00. The stated proposal costs include aU labor and
material Clssociated with pl'ecol1structioll services I'dating to this project and includes the following
listed basic services and or deliverables as required and requested.
A. Review of drawings find provide recommendations relating to COllstructability, materials,
means aud methods of construction and provide cost savings methods as may be required to
nchieve stated "Owner'::;" budgets.
B. Provide Project Construction Schedules integrated with the "Owner's" and the "Owner's"
Design Professionals schedulcs and provide updates as may be required.
C. Provide detailed estimate of constl11ction costs and provide recommendations in the form of
cost savings methods for review and acceptance by the "Owncr" in the event that the cost may
exceed the stated constl'tlctioll budgets set forth by the "Owner".
D. Provide a construction phase schedule and staging logistics plan as may be required.
E. Pl'ovide final bid process involving subcontractor pre-qualification, public adve11isemcnt of
notice and schedules as required.
F. Attend all meeting as may be required, requested and 01' schcduled,
G. Provide for review and "Owner's" final accepbmctl a "Final" Cost GMP proposal at 100%
Construction Documents pursuant to the activities as listed herein.
Due to the compressed schedule requirements of this project we propose that the cost for these
services be invoiced in /. payments as follows:
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Coundl Mamber ~j~~
v^,Av.kaufmanlynn.com
Pl'e-CoJlsll'llcl i 0/1 COlllm clOl's Campen sa liol1lPa)'Jlte1l Is:
The Pre-Constmctioll Contmctor's compensation for all Pre-Construction Selvices required by this
proposal is a lump sum amount, billable on completion and is outlined as tollows:
Schedule ofValuc^1i
I.
Schematic Design Development Budget;
$1,500.00
a) Line Item Cost Breakdown (Rstiwnte 1)
b) 1st Constnwtability Review / VE Recommendations
c) Attendance at Team meetings as reqnested
II. Guaranteed Maximum Price;
a) Subcontractor Solicitation
b) 100% CD GMP Estimate and Pr(>~')elltation
c) 100% CD VB Recommendations
d) Prepare and Presentation of GMI' proposal
e) Prequaliikatioll / Negotiation ofSubi.:onlractors
$500.00
Pl'ecollstrndion Servkes Total (Lump Sum)
$).,000.00
It is expressly understood that the Pre<:onslruclion ContractOl is not a design or engineering consultant.
All information provided to the Owner, under this agreement, is provided for their use ill determining
project feasibility flnd economics. All Professional Design find Engineering are specifically excluded
from this agrwment. Any solutions or value engineering suggestions proposed by Kaufman Lynn Inc
General Contractors are offered in good faith with the understanding that it is the Owner's design
professional's responsibility to insure compliance with applicable codes and consistency with design
intent.
Please review this Scope of Preconstmetion Services as it relates to the above referenced
project and feel free to callmc with any questions YOtl may have,
Respectfully Submitted,
~__^ C!-~---_.-
IJruce Cavossa
Vice President
Acceptance: /)
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Print:L!Z?.I:.... .:-/,J:aliL'- ...
Date:,_. /:- .~~ . LiJ_ _ _
Cc: Michael!. Kaufinan, President
Ron Zcigel, Senior Estimator
File
KL
KAUFMAN LYNN
CF~ERALCONTRACTORS
622 Banyan Troll, Suife 300 1 Boca Roton 1 Fl, 33431
PH: 561.361.67001 FX: 561.361.6979
June 1,2010
Boynton Beach eRA
Attn: Michael Simon, Development Director
915 South Federal Highway
Boynton Beach~ Florida 33435
Project: Historic Cottage Relocation (Ocean Ave & SE 4th Street)
Mr. Simon:
Thank yoli fOl' providing us the oppoltuliity to submit this Proposal for Pre-Collsfl'uction Services for
the above t"eferenced project. Utlder the terms of this proposal we will provide the pre-Collstl'Uction
services during a period to be deternlined at OUI' initial meeting with you and the appropriate project
stakeholders along with yOUI' selected design team. Our total Guaranteed Maximum Price for
Preconstruction Services for the program is $2,000.00. The stated proposal costs include alllahor and
material associated with preColiShuction services i"elating to this project and includes tIle following
listed basic services and or delivetables f:lS required and requested.
A. Review of drawings and provide recommendatIons relating to constructability, matelials,
means and methods of construction and provide cost savings methods as 1l1ay be required to
achieve stated "Owner's" b\idgets,
B. Provide Project Conshuction Schedules integrated with tIle "Owner's') and the "Owner's"
Design Professionals schedules and provide updates as may be required.
n Provide detailedestimateofconstmctioll costs and provide recommendadons in the fOl'nl of
cost savings methods for review and acceptance by the "Owner" in the event that the Cbst may
exceed the stated construction budgets set fQrfh by the l<Owner".
D. Pl'Ovide a construction phase schedule and staging logistics plan as may be required.
E. Provide final bid process involving subconh'actor pre-qualification) public advertisement of
notice and schedules as required.
F. Attend all meeting as may be required, requested and or scheduled.
G. Provide for review and "Owner's" final acceptal)Ce a "Final" Cost OMP proposal at 100%
Construction Documents pursuant to the activities as listed herein.
Due to the compressed schedule i:equir~n1ents of1his project we propose that the cost for these
services be invoiced in 2 payments as follows:
www.kaufmanlynn.com
u.s, Oroen kd<lb" ~
Cound M,""b.. .
Pre-ConstJ'llctioll COlltraciol's Compeusatioll/Paymeuts:
The Pre-Construction Contractor's compensation for all Pre-Construction Services required by this
proposal is a lump sum amount, billable on completion and is outlined as follows:
Schedule of Values
I. Schematic Design Development Budget;
$1,500.00
a) Line Item Cost Breakdown (Estimate 1)
b) 1st Constructability Review / VE Recommendations
c) Attendance at Team meetings as requested
II. Guaranteed Maximum Price;
a) Subcontractor Solicitation
b) 100% CD Glv.O? Estimate and Presentation
c) 100% CD VE Recommendations
d) Prepare and Presentation of GMP proposal
e) Prequalification I Negotiation of Subcontractors
$500.00
Pl'econstructioJ1 Services Total (Lump Sum)
$2,000.00
It is expressly understood that the Preconstruction Contractor is not a design or engineering consultant.
All information provided to the Owner, under this agreement, is provided for their use in detennining
project feasibility and economics. AU Professional DesIgn and Engineering are specifically excluded
from this agreement. Any solutions or value engineedng suggestions proposed by Kaufman Lynn Inc.
General Contractors are offered in good faith with the understanding that it is the Owner's design
professional's responsibility to insure compliance with applicable codes and consistency with design
intent.
Please review this Scope ofPreCOl1strllction Services as it relates to the above leferenced
project and feel free to caUme with any questions you may have.
Respectfully Submitted,
~ C-----
Bruce Cavossa
Vice President
~~/~
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Prmt: ~&-tt&..../ L}.....nO","
Date: ? 2 . Ii)
Cc: Michael 1. K~ufman. President
Ron Zeigel, Senior Estimator
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1
CONTINUING CONTRACT
TASK ORDER NO.2
FOR CONSTRUCTION MANAGEMENT AT RISK SERVICES
BOYNTON BEACH COMMUNITY REDEVELOPMENT AGENCY, a Florida public body corporate and
politic created pursuant to Part III of Chapter 163, Section 356, Florida Statutes, hereinafter referred to as the
"Owner", and KAUFMAN LYNN CONSTRUCTION, INC., 606 Banyan Trail, Boca Raton, Fla. 33431,
hereafter referred to as "KAUFMAN LYNN" agree as follows.
WITNESSETH
A. The Owner and KAUFMAN LYNN are parties to a General Contracting/Construction
Management/Consulting Agreement dated July 3, 2007 (hereinafter "2007 Agreement").
B. The Scope of Services of the 2007 Agreement provides that KAUFMAN LYNN will provide construction
management services to the Owner on request.
C. The Compensation provision for the 2007 Agreement provides for negotiation of a lump sum not to exceed
fee for services which can be clearly outlined by the parties.
D. The Owner has heretofore clearly defined construction management at risk services for the following
projects: Ocean Avenue Amphitheatre, Boynton Harbor Marina Entry Area, and the Jones Cottage
Relocation and Renovation. The scope of each Project and the duties required of the Construction Manager
at Risk are described in greater detail in the Owner Request For Proposal that was posted on September 29,
2010.
E. The Owner, not satisfied with proposals submitted in response to a recent RFP seeking construction
management services has rejected those proposals and now elects to use the services of KAUFMAN LYNN
as authorized in the 2007 Agreement. The Owner's decision to do so was based in part on the
representations made by KAUFMAN LYNN to the Owner Board that KAUMAN LYNN could perform the
same services as were being offered by two companies that responded to the RFP and could do so for a
guaranteed maximum fee of NINE HUNDRED FIFTY-THREE THOUSAND THREE HUNDRED
EIGHTY-EIGHT DOLLARS AND 00/100 ($953,388.00).
F. The Owner and KAUFMAN LYNN have reached agreement whereby KAUFMAN LYNN will act as the
Construction Manager at Risk ("CM@R") to provide completion of the Owner Projects as more particularly
described in the attached GeneraLCondiriom: and Special Conditions for Construction Management Services
for a maximum guaranteed fee hereinafter described.
NOW THEREFORE, in consideration of the mutual covenants expressed herein, the Owner and KAUFMAN
LYNN agree as follows:
1. That KAUFMAN LYNN, in consideration of the payments, covenants and agreements herein agrees to
serve as the Owner's CM@R and to provide construction management services to the OWNER, to perform all
Work necessary to construct and complete in a good workmanlike and substantial manner, and to the
satisfaction of the Owner, the following projects:
a. Ocean Avenue Amphitheatre (EXHBIT A)*
b. Boynton Harbor Marina Entry Area (EXHIBIT B)*
c. Jones Cottage Relocation and Renovation (EXHIBIT C)*
The three projects listed above shall be collec1ivelyreferred to herein, and in the attached General Conditions
and Special Conditions, as the "Project" :or~je.cts~.
1
2. The Work shall be performed in accordance with the terms and conditions as defined in the attached
Documents:
General Conditions (EXHIBIT D)
Special Conditions (EXHIBIT E)
Construction Team Assigned Representatives (EXHIBIT F)
Guaranteed Maximum Price Summary (EXHIBIT G)
Items to be Submitted with Construction Manager's Request for Final Payment (EXHIBIT H)
Personnel Assigned During Construction Summary (EXHIBIT I)
Drawing List upon which Guaranteed Maximum Price is Based (EXHIBIT J)
List of Qualifications and Assumptions upon which Guaranteed Maximum Price is Based (EXHIBIT K)
as approved by the Owner and are made a part of this agreement by this reference.
3. The CM agrees that the total cost to the Owner for completion of all Projects listed above is NINE
HUNDRED FIFTY-THREE THOUSAND THREE HUNDRED EIGHTY-EIGHT DOLLARS AND 001100
($953,388.00) and that such cost is a Guaranteed Maximum Price.
A detailed breakdown of the Guaranteed Maximum Price is provided in Exhibit G (Guaranteed Maximum
Price Summary) of the General Conditions and as follows:
DIVISION 1 - GENERAL REQUIREMENTS
DIVISION 2 - SITE CONSTRUCTION
DIVISION 3 - CONCRETE
DIVISION 4 - MASONRY
DIVISION 5 - STEEL
DIVISION 6 - CARPENTRY
DIVISION 7 - THERMAL / MOISTURE
DIVISION 8 - WINDOWS AND DOORS
DIVISION 9 - FINISHES
DIVISION 10 - SPECIAL TIES
DIVISION 11 - EQUIPMENT
DIVISION 12 - FURNISHINGS (In Specialties Div 10)
DIVISION 13 - SPECIAL CONSTRUCTION
DIVISION 14 - ELEVATOR
DIVISION 15 - MECHANICAL
DIVISION 16 - ELECTRICAL
$ 41.456.00
$ 192.548.00
$ 126.921.00
$ 22.040.00
$ 32.810.00
$ 10,961.00
$ 3.464.00
$ 11..430.00
$ 18.773.00
$ 117.760.00
$ 0.00
$ 0.00
$ 0.00
$ 15.000.00
$ 20,625.00
$ 130.882.00
TOTAL (divisions 1-16)
$ 744.670.00
INSURANCE
$ 5,614.00
MANAGEMENT FEE (%)
$ 122.063.00
2
GENERAL CONDITIONS & CONSTRUCTION MANAGEMENT
$ 81,040.00
CONSTRUCTION CONTINGENCY
$
0.00
TOTAL GUARANTEED MAXIMUM PRICE
$ 953,388.00
Owner hereby promises and agrees with the CM to employ, and do hereby employ, the CM to provide the
materials and do the Work according to the terms and conditions herein contained and referred to, for the price
aforesaid, and hereby agree to pay the same at the time, in the manner and upon the conditions set forth herein,
and the said parties for themselves, their heirs, executors, administrators, successors and assigns, do hereby
agree to the full performance of the covenants herein contained.
(1) If there are savings on the Construction Cost, 100% of the shared savings shall be retained by
the Owner, and 0 % of the shared savings shall be retained by the CM.
4. Owner will fix the starting date of the Work and issue a Notice to Proceed after the date of approval of
the Task Order No.2 by Owner. The CM shall fully complete all the Work of the Task Order No.2, in first
class working order and ready for acceptance by Owner, on or before the expiration of One Hundred Eighty
(180) calendar days from the issuance of the Notice to Proceed and the receipt of all permits necessary to begin
construction. The eM will pay to the Owner the sum of One Hundred Fifty and 00 Dollars ($150.00) for each
day completion is delayed beyond the time prescribed, in accordance with the terms of the Project Agreement.
5. All contractors and sub-contractors who perform work on the Projects are required by law to be licensed
and regulated by the Contractor's State License Board. Any questions concerning a contractor may be referred
to the registrar of the Board.
6. That any notice to Owner may be served effectually upon Owner by delivering it in writing, addressed
to:
Boynton Beach Community Redevelopment Agency
Attn: Vivian Brooks
915 S. Federal Highway
Boynton Beach, FL 33435
7. That any notice to KAUFMAN LYNN may be served effectually upon delivering it in writing,
addressed to 606 Banyan Trail, Boca Raton, Fla. 33431.
8. This Task Order is a sub-obligation of the 2007 Agreement between the parties and all terms and
conditions of the 2007 Agreement apply as though stated herein unless modified by this document.
*EXHIBITS A, B, & C are referenced as such but not attached as part of this document. These
EXHIBITS may be obtained and inspected separately.
SIGNA TURE PAGE FOLLOWS
3
IN WITNESS WHEREOF, the parties to these presents have hereto set their hands this_______ day of March.
201 I
Signed, sealed and witnessed
in the presence of:
BOYNTON BEACH COMMUNITY
REDEVELOPMENT AGENCY
Attest:
Print Name:
Jose Rodriguez, CRA Chairman
Attest:
Print Name:
James A. Cherof, CRA Attorney
Signed, sealed and witnessed
in the presence of:
KAUFMAN LYNN CONSTRUCTION, INC.
Attest:
Print Name:
Print Name:
Attest:
Print Name:
State of Florida
County of Palm Beach
)
)
On this day of , 20ll, personally appeared before me, duly authorized to administer
oaths, known to be the persons described herein or
who has produced as identification and who executed the foregoing
instrument and has acknowledged before me that they have executed same.
Notary Public
My Commission Expires:
4
GENERAL CONDITIONS OF THE CONTRACT FOR CONSTRUCTION MANAGEMENT
SERVICES
INDEX
ARTICLE 1. GENERAL PROVISIONS
1.1 Basic Definitions
1 .1 . 1 The Contract
1.1.2 The Contract Documents
1.1.3 Execution, Correlation and Intent
1.1.4 Governing Law
1.1.5 Successor and Assigns; Assignability Clause
1 . 1.6 Written Notice
1.1.7 Rights and Remedies
1.1.8 Arbitration
1.1.9 The Project Assigned Representatives
1.1.10 Extent of Agreement
1.1.11 Definitions
1.1.12 Owner's Construction Budget
1.2 Claims
1.3 The Work
1.4 The Drawings
1.5 The Specifications
1.6 The Project Manual
1.7 Performance Bond and Payment Bond Requirements
1.8 Ownership and Use of Architect's Drawings, Specifications and Other Documents
1.9 Tests and Inspections
1.10 Interest
1 . 11 Capitalization
1.12 Interpretation
1.13 Commencement of Statutory Limitation Period
1.14 Council Meetings
1.15 Possession of Firearms
ARTICLE 2. OWNER
2.1 Definition
2.2 Information and Services Required of the Owner
2.3 Owner's Right to Stop the Work
2.4 Owner's Right to Carry Out the Work
2.5 Records of Construction Manager
ARTICLE 3. CONSTRUCTION ""ANAGER
3.1 Definition
3.2 Review of Contract Documents and Field Conditions by Construction Manager
3.3 Supervision and Construction Procedures
3.4 Project Manager and Superintendent
3.5 Labor and Materials
3.6 Warranty
3.7 Tangible Property
3.8 Taxes
3.9 Direct Purchase Tax Savings Plan
3.10 Permits, Fees and Notices
1
3.11 Construction Manager's Construction Schedules
3.12 Documents and Samples at the Site
3.13 Shop Drawings, Product Data and Samples
3.14 Use of Site
3.15 Cutting and Patching
3.16 Cleaning Up
3.17 Harmony
3.18 Apprentices
3.19 Unauthorized Aliens
3.20 Access to Work
3.21 Royalties and Patents
3.22 Indemnification
3.23 Disclosure of Project Information
ARTICLE 4. ADMINISTRATION OF THE CONTRACT
4.1 Definitions
4.2 Architect's Administration of the Contract
4.3 Claims and Disputes
4.4 Claims for Additional Time
4.5 Resolution of Claims and Disputes
4.6 Litigation
ARTICLE 5. SUBCONTRACTORS
5.1 Definitions
5.2 Award of Subcontracts and other Contracts for Portions of the Work
5.3 Subcontractor Relations
5.4 Contingent Assignment of Subcontracts
ARTICLE 6. CONSTRUCTION BY OWNER OR BY SEPARATE CONTRACTORS
6.1 Owner's Right to Perform Work and To Award Separate Contracts
6.2 Mutual Responsibility
6.3 Owner's Right to Clean Up
ARTICLE 7. CHANGES IN THE WORK
7.1 Changes
7.2 Change Orders
7.3 Construction Change Directives
7.4 Claims for Additional Cost or Time
7.5 Minor Changes in the Project
7.6 Emergencies
ARTICLE 8. TIME
8.1 Definitions
8.2 Progress and Completion
8.3 Delays and Extensions of Time
8.4 Failure to Complete The Work on Time
ARTICLE 9. PAYMENT AND COMPLETION
9.1 Guaranteed Maximum Price
9.2 Schedule of Values
9.3 Application for Payment
2
9.4 Certificates for Payment
9.5 Prompt Payment to Subcontractors, Materialmen and Suppliers
9.6 Progress Payments
9.7 Failure of Payment
9.8 Substantial Completion
9.9 Partial Occupancy or Use
9.10 Final Completion and Final Payment
ARTICLE 10. PROTECTION OF PERSONS AND PROPERTY
10.1 Safety Precautions and Programs
10.2 Safety of Persons and Property
10.3 Emergencies
ARTICLE 11. UNCOVERING AND CORRECTION OF WORK
11.1 Uncovering of Work
11.2 Correction of Work
11.3 Acceptance of Nonconforming Work
ARTICLE 12. TERMINATION OR SUSPENSION OF THE CONTRACT
12 .1 Termination by the Construction Manager
12.2 Termination by the Owner for Cause
12.3 Suspension by the Owner for Convenience and/or Termination for Convenience
ARTICLE 13. EQUAL EMPLOYMENT OPPORTURNITY
13.1 Contractor's Employment Policy
ARTICLE 14. CONSTRUCTION MANAGER'S SERVICES
14.1 Pre-Construction Activities
14.1.1 Project Management Information System
14.1.2 Scheduling Control Subsystem
14.1.3 Cost Control System
14.1.4 Project Accounting System
14.1.5 Project Manual
14.2 Pre-Construction Services
14.2.1 Separate Contracts Planning
14.2.2 Interfacing
14.2.3 Solicitation of Bids and Proposals
14.3 Construction Services
14.3.1 Construction Manager's Staff
14.3.2 Job-Site Facilities
14.3.3 Field Offices and Sheds
14.3.4 Self Performed Labor and Materials
14.3.5 Lines of Authority
14.3.6 Schedule and Project Manual Provisions
14.3.7 Quality Control
14.3.8 Sub-Contractor Interfacing
14.3.9 Contractor/Sub-Contractor Access to Site
14.3.10 Permits
14.3.11 Owner Occupancy
14.3.12 Warranty
3
ARTICLE 15. TERMINATION OF THE AGREEMENT AND OWNER'S RIGHT TO PERFORM
CONSTRUCTION MANAGER'S OBLIGATION
15.1 Termination by the Construction Manager
15.2 Owner's Right to Perform Construction Manager's Obligations
15.3 Termination by Owner Without Cause
ARTICLE 16. OWNER'S RESPONSIBILITIES
16.1 Owner's Information
16.2 Owner's Representative
16.3 Architect and Engineers Agreement
16.4 Site Survey and Reports
16.5 Approvals and Easements
16.6 Legal Services
16.7 Drawings and Specifications
16.8 Cost of Survey and Reports
16.9 Project Fault Defects
16.10 Funding
16.11 Lines of Communication
16.12 Li nes of Authority
16.13 Permitting and Code Inspections
ARTICLE 17. PERMITTING AND INSPECTION
17.1 Building Permits
17.2 Code Inspections
ARTICLE 18. CONSTRUCTION MANAGER'S FEES
18.1.1 Management Fee
18.1.2 Construction Manager's Exclusive Remedy
18.1.3 General Conditions and Construction Management Costs
ARTICLE 19. GENERAL CONDITIONS
19.1 Direct Cost Items
ARTICLE 20. PAYMENTS TO CONSTRUCTION MANAGER
20.1 Schedule of Values
20.2 Monthly Statements
20.3 Final Payment
20.4 Payments to Sub-Contractors
20.5 Delayed Payments by Owner
20.6 Payments for Materials and Equipment
20.7 Withholding Payments to Sub-Contractors
4
EXHIBIT D
GENERAL CONDITIONS
OF THE CONTRACT FOR CONSTRUCTION MANAGEMENT SERVICES
BETWEEN THE BOYNTON BEACH COMMUNITY REDEVELOPMENT AGENCY AND
KAUFMAN LYNN CONSTRUCTION, INC. FOR CONSTRUCTION MANAGER AT RISK
SERVICES FOR THE CONSTRUCTION OF OCEAN AVENUE AMPHITHEATRE, BOYNTON
HARBOR MARINA ENTRY AREA, AND THE JONES COTTAGE RELOCATION AND
RENOVATION
These General Conditions of the Contract for Construction Management Services are entered
into by and between the Boynton Beach Community Redevelopment Agency, a Florida public
body and politic created pursuant to Part III of Chapter 163, Section 356, Florida Statutes,
hereinafter referred to as OWNER, and Kaufman Lynn Construction, Inc., hereinafter referred to
as CONSTRUCTION MANAGER.
WHEREAS, Owner and Contractor have entered into Continuing Contract Task Order No.2 For
Construction Management at Risk Services dated March _' 2011, (the "Task Order")
pursuant to which Owner has hired Contractor to provide Construction Management services for
the Ocean Avenue Amphitheatre Renovation, the Boynton Harbor Marina Entry Area
Renovation, and the Jones Cottage Relocation and Renovation (collectively the "Project" or
"Projects") located in Boynton Beach, Florida; and
WHEREAS, these General Conditions of the Contract for Construction Management Services
are necessary to provide more specific terms and conditions than what is contained in the Task
Order; and
WHEREAS, the Construction Manager represents that it is capable and prepared to provide
such Services:
NOW THEREFORE, in consideration of the promises contained herein, the parties hereto agree
as follows:
THE CONTRACT DOCUMENTS
The Contract Documents consist of Continuing Contract Task Order No.2, dated March
2011, these General Conditions of the Contract for Construction Management Services (the
"General Conditions of the Contract"), documentation submitted by the Construction Manager
prior to Notice to Proceed, the documentation submitted by Construction Manager following the
Notice to Proceed, Special Conditions of the Contract for Construction Management Services
("Special Conditions of the Contract"), Preliminary and Final Drawings, and the Project Manual.
The Drawings upon which Construction Manager has relied in formulating the Guaranteed
Maximum Price are listed in Exhibit J attached hereto, and are a part of the Contract
Documents. The Construction Manager's list of Qualifications and Assumptions upon which the
Guaranteed Maximum Price is based, is attached hereto as Exhibit K and is a part of the
Contract Documents. These form the Contract Documents, and all are fully a part of this
Agreement as if attached to these General Conditions of the Contract or repeated herein.
THE WORK
The Construction Manager shall perform all the Work required by the Contract Documents for:
5
a. Ocean Avenue Amphitheatre Renovation
b. Boynton Harbor Marina Entry Area Renovation
c. Jones Cottage Relocation and Renovation
The three projects listed above shall be collectively referred to herein as the "Project" or
"Projects".
SCOPE OF WORK
The Construction Manager shall perform the construction management services set forth in
these General Conditions of the Contract. The Work shall incorporate all of the requirements
set forth in the Contract Documents, the Florida Building Code, Florida Accessibility Codes and
all other applicable specifications.
ARTICLE 1
GENERAL PROVISIONS
1.1 BASIC DEFINITIONS
1.1.1 THE CONTRACT
The Contract Documents form the Project Agreement for Construction Management Services.
The Contract represents the entire and integrated agreement between the parties hereto and
supersedes all prior negotiations, representations or agreements either written or oral. The
Contract may be amended or modified only by a Modification, as defined in Section 1.1.2 below.
Except as set forth in paragraph 5.3 and 5.4, the Contract Documents shall not be construed to
create a contractual relationship of any kind (1) between the Architect and the Construction
Manager, (2) between the Owner and a Subcontractor or Sub-subcontractor or Material Supplier
or (3) between any persons or entities other than the Owner and Construction Manager. The
Architect shall, however, be entitled to performance and enforcement of obligations under the
Contract intended to facilitate performance of the Architect's duties.
1.1.2 THE CONTRACT DOCUMENTS
The Contract Documents are defined on Page 1 of these General Conditions of the Contract. A
Modification is (1) a written amendment to the Contract signed by both parties, (2) a Change
Order, (3) a Construction Change Directive or (4) a written order for a minor change in the Work
issued by the Architect. These form the Contract and all are fully a part of the Contract as if
attached to these General Conditions of the Contract. Contract Documents shall also include all
items to be provided by the Construction Manager and approved by the Owner prior to issuance
of a "Notice to Proceed".
1.1.3 EXECUTION, CORRELATION AND INTENT
The Contract Documents shall be signed by the Owner and Construction Manager as provided
in the Agreement. If either the Owner or Construction Manger or both do not sign all the
Contract Documents, the Architect shall identify such unsigned Documents upon request of
either party.
6
Execution of the Contract is a representation that the Construction Manager has carefully
examined the Contract Documents and the site, and represents that the Construction Manager
is thoroughly familiar with the nature and location of the Work, the site, the specific conditions
under which the Work is to be performed, and all matters which may in any way affect the Work
or its performance. The Construction Manager further represents that, as a result of such
examinations and investigations, the Construction Manager thoroughly understands the
Contract Documents and their intent and purpose, and is familiar with all applicable codes,
ordinances, laws, regulations and rules as they apply to the Work, and that the Construction
Manager will abide by same. Claims for additional time or additional compensation as a result of
the Construction Manager's failure to follow the foregoing procedure and to familiarize itself with
all local conditions and the Contract Documents will not be permitted.
The intent of the Contract Documents is to include all items necessary for the proper execution
and completion of the Work by the Construction Manager. Contract Documents are
complimentary, and what is required by anyone shall be as binding as if required by all;
performance by the Construction Manager shall be required only to the extent consistent with
the Contract Documents and reasonable inferable from them as being necessary to produce the
intended results. In the event of conflicting provisions in the specifications or the drawings, the
Construction Manager's List of Qualifications and Assumptions, attached hereto as Exhibit F,
shall take precedence, after which the more specific provision will take precedence over the less
specific; the more stringent will take precedence over the less stringent the more expensive item
will take precedence over the less expensive. On all drawings, figures take precedence over
scaled dimensions. Scaling of dimensions, if done, is done at the Construction Manager's own
risk.
Organization of the Specifications into divisions, sections and articles, and the arrangement of
drawings shall not control the Construction Manager in dividing the Work among Subcontractors
or in establishing the extent of Work to be performed by any trade.
Unless otherwise stated in the Contract Documents, words which have well-known technical or
construction industry meanings are used in the Contract Documents in accordance with such
recognized meanings.
1.1.4 GOVERNING LAW
The Contract shall be governed by the laws of the State of Florida; venue Palm Beach County.
1.1.5 SUCCESSORS AND ASSIGNS; ASSIGNABILITY CLAUSE
The Owner and Construction Manager respectively bind themselves, their partners, successors,
assigns and legal representatives to the other party hereto and to partners, successors, assigns
and legal representatives of such other party in respect to covenants, agreements and
obligations contained in the Contract Documents. Neither party to the Contract shall assign the
Contract or any rights, duties, or obligations arising thereunder in whole or in part, without the
prior written consent of the other.
1.1.6 WRITTEN NOTICE
Written notice shall be deemed to have been duly served if delivered in person to the individual
or a member of the firm or entity or to an officer of the corporation for which it was intended, or if
delivered at or sent by registered or certified mail to the last business address known to the
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party giving notice. Notice may also be made bye-mail or facsimile transmission. In such case,
notice will be deemed received when the transmission is made. The party making such facsimile
transmission shall also forward an original copy of such notice by regular mail.
1.1.7 RIGHTS AND REMEDIES
Duties and obligations imposed by the Contract Documents and rights and remedies available
thereunder shall be in addition to and not a limitation of duties, obligations, rights and remedies
otherwise imposed or available by law.
No action or failure to act by the Owner, Architect or Construction Manager shall constitute a
waiver of a right or duty afforded them under the Contract, nor shall such action or failure to act
constitute approval of or acquiescence in a breach thereunder, except as may be specifically
agreed in writing.
1.1.8 ARBITRATION
Nothing arising under the Contract Documents or in connection with the performance of the
Work or Project shall be subject to arbitration, nor shall any attempts at arbitration be binding on
the Owner.
1.1.9 THE PROJECT ASSIGNED REPRESENTATIVES
The Construction Manager, the Owner or the Owners Project Representative and the Architect-
Engineer, called the "Project Assigned Representatives", shall work jointly through final
construction completion and shall be available thereafter should additional services be required.
The Construction Manager shall provide leadership to the Project Assigned Representatives on
all matters relating to construction. The specific representatives are shown in Exhibit F
attached hereto.
1.1.10 EXTENT OF AGREEMENT
This Agreement between the Owner and the Construction Manager supersedes any prior
negotiations, representations or agreements. This Agreement shall not be superseded by any
provisions of the documents for construction and may be amended only by written instrument
signed by both Owner and Construction Manager.
1.1.11 DEFINTIONS
Architect-Engineer: The firm designated by the Owner to provide professional design services
related to the Project described herein: REG Architects, Inc. and VHB MillerSellen.
Construction Manager: The firm designated by the Owner to provide all Work required by the
Contract Documents described herein: Kaufman Lynn Construction, Inc.
Estimate: The Construction Managers latest estimate of probable project construction cost.
Guaranteed Maximum Price: Maximum price guaranteed to the Owner by the Construction
Manager, for the construction cost of the Project.
Permitting Authority: The City of Boynton Beach.
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Phase: A clearly defined subset of work isolated for the purpose of expediting the entire Project
to completion. The sum of all Phases is equal to the Scope of Work of the Project.
Project: The Project is the total work to be performed under this Agreement. The Project
consists of planning, permitting, construction, code inspection and final inspections necessary to
build the component parts of the Project.
Owner: The entity that will occupy, use and own the Project upon substantial completion is the
Boynton Beach Community Redevelopment Agency. The funds which compensate the
Architects, Engineers, Construction Managers, etc. are under the sole control of the Boynton
Beach Community Redevelopment Agency.
Owner's Authorized Representative: A designated representative fully acquainted with the
Project with authority to render decisions necessary to expedite the Project.
1.1.12 OWNER'S CONSTRUCTION BUDGET
Owner's funds budgeted and requested for construction of the Project. The Owner's
Construction Budget is $953.388.00. This acknowledgment of the Owner's budgeted funds is
not to be construed as the Construction Manager's Guaranteed Maximum Price.
1.2 CLAIMS
A claim is a demand or assertion by one of the parties seeking, as a matter of right, adjustment
or interpretation of contract terms, payment of money, extension of time or other relief with
respect to the terms of the Contract. The term "Claim" also includes other disputes and matters
in question between the Owner and Construction Management Services arising out of or
relating to the Contract. Claims must be made by written notice within seven (7) days after the
first observance of such injury or damage or such claim is deemed waived by such party. The
responsibility to substantiate the claims rest with the party making the claim.
1.3 THE WORK
The term 'Work" means the construction and services required by the Contract Documents,
whether completed or partially completed, and includes all other labor, materials, equipment and
services provided or to be provided by the Construction Manager to fulfill their obligations to the
Owner. The Work may constitute the whole or a part of the Project. Any item relating to the
Work that requires action by the Owner shall be submitted in writing to the Owner at least fifteen
(15) days prior to a regularly scheduled Boynton Beach Community Redevelopment Agency
Board meeting in order that it may be placed on the Agenda.
1.1 THE DRAWINGS
The Drawings are the graphic and pictorial portions of the Contract Documents, wherever
located and whenever issued, showing the design, location and dimensions of the Work,
generally including plans, elevations, sections, details, schedules and diagrams. Record
drawings will be synonymous with "As Built" Drawings.
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1.2 THE SPECIFICATIONS
The Specifications are that portion of the Contract Documents consisting of the written
requirements for materials, equipment, construction systems, standards and workmanship for
the Work, and performance of related services.
1.6 THE PROJECT MANUAL
The Project Manual is the volume usually assembled for the Work which includes but is not
limited to the Bidding Requirements, Sample Forms, Conditions of the Contract and
Specifications.
1.7 PERFORMANCE AND PAYMENT BOND REQUIREMENTS
The Construction Manager will not be required to provide a Performance and Payment Bond for
this Project.
1.8 OWNERSHIP AND USE OF ARCHITECT'S DRAWINGS, SPECIFICATIONS AND OTHER
DOCUMENTS
The Drawings, Specifications and other documents prepared by the Architect are instruments of
the Architect's service through which the Work to be executed by the Construction Manager as
described. The Construction Manager may retain one (1) contract record set. Neither the
Construction Manager nor any Subcontractor, Sub-subcontractor or material or equipment
supplier shall own or claim a copyright in the Drawings, Specifications and other documents
prepared by the Architect, and unless otherwise indicated, the Architect shall be deemed the
author of them and will retain all common law, statutory and other reserved rights, in addition to
the copyright. The Drawings, Specifications and other documents prepared by the Architect, and
copies thereof furnished to the Construction Manager, are for use solely with respect to this
Project.
They are not to be used by the Construction Manager or any Subcontractor, Sub-subcontractor
or material or equipment supplier on other projects or for additions to this Project outside the
Scope of the Work without the specific written consent of the Owner and Architect. The
Construction Manager, Subcontractors, Sub-subcontractors and material or equipment suppliers
are granted a limited license to use and reproduce applicable portions of the Drawings,
Specifications and other documents prepared by the Architect appropriate to and for use in the
execution should be of their Work under the Contract Documents. All copies made under this
license shall bear the statutory copyright notice, if any, shown on the Drawings, Specifications
and other documents prepared by the Architect. Submittal or distribution to meet official
regulatory requirements or for other purposes in connection with the Project is not to be
construed as publication in derogation of the Architect's copyright or other reserved rights.
Notwithstanding the foregoing, the Owner retains certain rights to use the drawings,
specifications and other documents prepared by the Architect pursuant to the Owner-Architect
Agreement which shall control such use of drawings.
1.9 TESTS AND INSPECTIONS
(1) Tests, inspections and approvals of portions of the Work required by the Contract
Documents or by laws, ordinances, rules, regulations or orders of public authorities having
jurisdiction shall be made at an appropriate time. Unless otherwise provided, the Construction
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Manager shall make arrangements for such tests, inspections and approvals with an
independent testing laboratory or entity acceptable to the Owner, or with the appropriate public
authority, and shall bear all related costs of tests, inspections and approvals. The Construction
Manager shall give the Architect timely notice of when and where tests and inspections are to
be made so the Architect may observe such procedures. The Owner shall bear costs of tests;
inspections or approvals. The Construction Manager will provide all tools access, and
cooperation to support all tests and inspections.
(2) If the Architect, Owner or public authorities having jurisdiction determine that portions of the
Work require additional testing, inspection or approval not included under Subparagraph 1.9.1
the Architect will, upon written authorization from the Owner, instruct the Construction Manager
to make arrangements for such additional testing, inspection or approval by an entity acceptable
to the Owner, and the Construction Manager shall give timely notice to the Architect of when
and where tests and inspections are to be made so the Architect may observe such procedures.
The Owner shall bear such costs except as provided below.
If such procedures for testing, inspection or approval reveal failure of the portions of the Work to
comply with requirements established by the Contract Documents, the Construction Manager
shall bear all costs made necessary by such failure including those of repeated procedures and
compensation for the Architects services and expenses.
(3) Required certificates of testing, inspection or approval shall, unless otherwise required by
the Contract Documents, will be secured by the Construction Manager and promptly delivered
to the Architect.
If the Architect is to observe tests, inspections or approvals required by the Contract
Documents, the Architect will do so promptly and, where practicable, at the normal place of
testing.
Tests or inspections conducted pursuant to the Contract Documents shall be made promptly to
avoid unreasonable delay in the Work.
1.10 INTEREST
Any monies not paid when due to either party under this contract shall not bear interest except
as may be required by Section 215.422 (3) (b), Florida Statutes 2003.
1.11 CAPITALIZATION
Terms capitalized in these General Conditions include those words or terms which are (1)
specifically defined, (2) the titles of numbered articles and identified references to paragraphs,
SUbparagraphs and clauses in the document or (3) the titles of other documents published by
the American Institute of Architects.
1.12 INTERPRETATION
In the interest of brevity, the Contract Documents frequently omit modifying words such as "all"
and "an," but the fact that a modifier or an article is absent from one (1) statement and appears
in another is not intended to affect the interpretation of either statement.
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1.13 COMMENCEMENT OF STATUTORY LIMITATION PERIOD
As between the Owner and Construction Manager, all statutory limitation periods shall be
governed by Law.
1.14 CRA MEETINGS
Any item relating to the Work that requires action by the Boynton Beach Community
Redevelopment Agency shall be submitted in writing to the Owner at least fifteen (15) days prior
to a regularly scheduled Boynton Beach Community Redevelopment Agency Board meeting in
order that it may be placed on the Agenda.
1.15 POSSESSION OF FIREARMS
Possession of firearms will not be tolerated on Boynton Beach Community Redevelopment
Agency property. "Firearm" means any weapon (including a starter gun, taiser or antique
firearm) which will, is designed to, or may readily be converted to expel a projectile by the action
of an explosive; the frame or receiver of any such weapon; any destructive device; or any
machine gun.
No person who has a firearm in their vehicle may park their vehicle on Boynton Beach
Community Redevelopment Agency property. Furthermore, no person may possess or bring a
firearm on Boynton Beach Community Redevelopment Agency property.
If any employee of an independent Construction Manager or sub-contractor is found to have
brought a firearm on Boynton Beach Community Redevelopment Agency property, said
employee will be terminated from the Boynton Beach Community Redevelopment Agency
project by the independent contractor or sub-contractor. If the sub-contractor fails to terminate
said employee, the subcontractor's agreement with the independent contractor for Boynton
Beach Community Redevelopment Agency project shall be terminated. If the independent
contractor fails to terminate said employee or fails to terminate the agreement with the
subcontractor who fails to terminate said employee, the independent contractor's agreement
with the Boynton Beach Community Redevelopment Agency shall be terminated.
ARTICLE 2
OWNER
2.1 DEFINITION
The Owner is The Boynton Beach Community Redevelopment Agency, and is referred to
throughout the Contract Documents as if singular in number. The term "Owner" means the
Owner or the Owner's authorized representative.
2.2 INFORMATION AND SERVICES REQUIRED OF THE OWNER
The Owner, unless otherwise agreed, shall furnish surveys describing physical characteristics,
legal limitations and utility locations for the site of the Project and a legal description of the site.
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The Owner shall secure and pay for necessary approvals, easements, assessments and
charges required for construction, use or occupancy of permanent structures or for permanent
changes in existing facilities.
Information or services under the Owner's control shall be furnished by the Owner with
reasonable promptness to avoid delay in the orderly progress of the Work.
The Construction Manager will be furnished free of charge up to 10 if necessary, copies of
drawings. Additional sets will be furnished at the cost of reproduction, postage and handling.
The foregoing are in addition to other duties and responsibilities of the Owner enumerated
herein and especially those in respect to Article 6 (Construction by Owner or by Separate
Contractors), Article 9 (Payments and Completion of the General Conditions of the Contract for
Construction) and Article 3 (Insurance Requirements) in the Special Conditions of the Contract
for Construction, Management Services section.
2.3 OWNER'S RIGHT TO STOP THE WORK
If the Construction Manager fails to correct Work which is not in accordance with the
requirements of the Contract Documents as required or persistently fails to carry out Work in
accordance with the Contract Documents or Florida Statute Chapter 1013.01 et sea Florida
Administrative Code (FAG), Chapter 6A-2, Florida Building Code, and Boynton Beach
Community Redevelopment Agency Administrative Policies and Directives, copies of which as
incorporated herein by reference and are available to the Contractor, the Owner, by written
order signed personally or by an agent specifically so empowered by the Owner in writing, may
order the Contractor to stop the Work, or any portion thereof, until the cause for such order has
been eliminated; however, the right of the Owner to stop the Work, shall not give rise to a duty
on the part of the Owner to exercise this right for the benefit of the Contractor or any other
person or entity.
2.4 OWNER'S RIGHT TO CARRY OUT THE WORK
If the Construction Manager defaults or neglects to carry out the Work in accordance with the
Contract Documents and fails within a seven (7) day period after receipt of written notice from
the Owner to commence and continue correction of such default or neglect with diligence, the
Owner may, without prejudice to other remedies, correct such deficiencies. In such case, an
appropriate Change Order shall be issued deducting from payments then or thereafter due the
Construction Manager for the cost of correcting such default, neglect or failure. Such action by
the Owner and amounts charged to the Construction Manager are both subject to prior approval
of the Architect. If payments then or thereafter due the Construction Manager are not sufficient
to cover such amounts, the Construction Manager shall pay the difference to the Owner upon
demand.
2.5 RECORDS OF CONSTRUCTION MANAGER
2.5.1 The Construction Manager shall keep full and accurate records of all costs incurred and
items billed in connection with the performance of the Work, which records shall be open to
audit by the Owner or its authorized representative during performance of the Work and until
two (2) years after final payment. In addition, the Construction Manager shall make it a condition
of all subcontracts relating to the Work that any and all Subcontractors will keep accurate
records of costs incurred and items billed in connection with their work and that such records
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shall be open to audit by the Owner or its authorized representative during performance of the
Work and until two (2) years after final payment.
ARTICLE 3
CONSTRUCTION MANAGER
3.1 DEFINITION
3.1.1 The Construction Manager is the person or entity identified as such in the Agreement and
is referred to throughout the Contract Documents as singular in number. The term "Construction
Manager" means the Construction Manager or the Construction Manager's authorized
representative.
3.2 REVIEW OF CONTRACT DOCUMENTS AND FIELD CONDITIONS BY CONSTRUCTION
MANAGER
3.2.1 The Construction Manager represents that the Construction Manager, subcontractors and
material and equipment suppliers have compared the Architectural, Structural, Mechanical,
Electrical, Plumbing, Civil and Site drawings and specifications and have compared and
reviewed all general and specific details on the drawings and that all patent conflicts,
discrepancies, errors and omissions have been either corrected or clarified prior to acceptance
of drawings by the Owner. A list of the Construction Manager's Qualifications and Assumptions
of the Contract Documents is attached hereto as Exhibit F, and is incorporated herein by
reference. The Construction Manager represents that the contract sum represents the total
costs for complete and functional systems and, therefore, the Construction Manager's review
and comparison of all drawings have taken into consideration the total and complete functioning
of all systems.
3.2.2 The Construction Manager shall take field measurements and verify field conditions and
shall carefully compare such field measurements and conditions and other information known to
the Contractor with the Contract Documents before commencing activities. Errors,
inconsistencies or omissions discovered shall be reported to the Architect at once.
3.2.3 The Construction Manager shall perform the Work in accordance with the Contract
Documents and submittals approved pursuant to Paragraph 3.12.
3.3 SUPERVISION AND CONSTRUCTION PROCEDURES
3.3.1 The Construction Manager shall supervise and direct the Work, using the highest quality
established by industry standards. The Construction Manager shall be solely responsible for
and have control over construction means, methods, techniques, sequences and procedures
and for coordinating all portions of the Work under the Agreement, unless Contract Documents
give other specific instructions concerning these matters.
3.3.2 The Construction Manager shall be responsible to the Owner for the acts and omissions of
the Construction Manager's employees, Subcontractors and their agents and any employees
and other persons performing portions of the Work under Contract with the Construction
Manager.
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The Construction Manager shall not be relieved of obligations to perform the Work in
accordance with the Contract Documents either by activities or duties of the Architect in the
Architect's administration of the Agreement, or by tests, inspections or approvals required or
performed by persons other than the Construction Manager. The Construction Manager shall be
responsible for inspection or portions or Work already performed under this Agreement to
determine that such portions are in proper condition to receive subsequent Work.
3.3.5 The Construction Manager shall inspect all materials delivered to the site and shall reject
any materials that will not conform with the Contract Documents.
3.3.6 The Construction Manager shall be responsible for and coordinate any and all inspections
required by the Owner and/or Architect or any other governmental body having jurisdiction over
the Project. Failure to obtain any required approval because of failure of the Construction
Manager to conform to the Contract Documents shall not extend the Contract Time, and the
Construction Manager shall not be entitled to an increase in the GMP.
3.4 PROJECT MANAGER AND SUPERINTENDENT
3.4.1 The Construction Manager shall employ a competent Project Manager and
Superintendent and necessary assistants who shall be in attendance at the project site during
the performance of the Work. The Project Manager and Superintendent shall represent the
Construction Manager, and all communications given to the Project Manager and
Superintendent shall be as binding as if given to the Construction Manager. All communications
shall be confirmed in writing.
3.4.2 The Project Manager, Superintendent and necessary Construction Superintendent(s) shall
be approved by and remain acceptable to the Architect and the Owner. The Construction
Manager shall provide upon request, to the Owner and Architect resumes of each Project
Manager, Superintendent and necessary Assistant Superintendent(s) engaged by the
Construction Manager for the Work.
3.4.3 As directed by the Architect, there is to be held at the Construction Manager's field office,
a meeting of the representatives of the various trades engaged about the Work, for furthering
the progress of the Work and giving of clarifications by the Architect.
3.4.4 The Construction Manager shall not change the Project Manager and Superintendent
without the prior consent of the Owner, which consent shall not be unreasonably withheld. The
Project Manager and Superintendent shall be present at the job until final completion. At the
Owner's request, for good cause shown, the Construction Manager shall assign a different
Project Manager or Superintendent to the Project.
3.4.5 For non-compliance with subparagraphs 3.4.1, 3.4.2, 3.4.3 and 3.4.4, the Owner may take
a credit in an amount equal to the daily pay rate of the absent personnel.
3.5 LABOR AND MATERIALS
3.5.1 Unless otherwise provided in the Contract Documents, the Construction Manager shall
provide and pay for all labor, materials, equipment, tools, construction equipment and
machinery, water, heat, utilities, transportation and other facilities and services necessary for
the proper execution and completion of the Work, whether temporary or permanent and whether
or not incorporated or to be incorporated in the Work.
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3.5.2 Construction Manager shall enforce strict discipline and good order among the
Construction Manager's employees and other persons carrying out the Contract. The
Construction Manager shall not permit employment of unfit persons or persons not skilled in
tasks assigned to them.
3.5.3 The Construction Manager shall employ its own forces, in addition to supervision and
layout, to do not more than 20% of the Contract Sum which shall only include two (2) or more of
the following: carpentry work, concrete form work, reinforcing steel work, structural steel work,
miscellaneous steel work or concrete work. Prior to the Contract being awarded, the
Construction Manager shall make available to the Owner, for approval, a written statement
setting forth the portion of the Work the Construction Manager shall provide; once approved, no
changes shall be made to this written statement without prior written approval of the Owner.
3.6 WARRANTY
3.6.1 The Construction Manager warrants to the Owner and the Architect that all materials and
equipment furnished under the Contract will be of good quality and new, unless otherwise
required or permitted by the Contract Documents, that the Work will be free from defects not
inherent in the quality required or permitted, and that the Work will conform with the
requirements of the Contract Documents. Work not conforming to these requirements, including
substitutions not properly approved and authorized may be considered defective. If required by
the Architect or Owner, the Construction Manager shall furnish satisfactory evidence as to the
kind and quality of materials and equipment. In the event of a failure or breakdown of equipment
which is still under warranty, and is crucial to the operation of the center and/or Construction
Manager's response time would be prohibitive, the Owner may effectuate repairs without
voiding the warranty, and the Construction Manager shall assume all such responsibility for
obtaining the Owner rights contained herein from the manufacturer of such equipment.
3.6.2 The Construction Manager represents and warrants the following to the Owner (in addition
and without modification to any other representations and warranty given by the Construction
Manager to the Owner) as an inducement to the Owner to enter into the Owner-Construction
Manager Agreement, which representations and warranties shall survive the execution of the
Contract Documents and final completion of the Work and final payment hereof:
3.6.3 The Construction Manager shall furnish the tools, materials, supplies, equipment and labor
required to complete the Work and perform their obligations under the Contract Documents, and
shall have sufficient experience and competence to do so;
3.6.4 The Construction Manager is authorized to do business in the State of Florida and is
properly licensed by all necessary governmental, public and other authorities having jurisdiction
over the Construction Manager and the Project;
3.6.5 The persons executing the Owner-Construction Manager Agreement, on behalf of the
Construction Manager, are properly authorized to do so.
3.7 TANGIBLE PROPERTY
3.7.1 Tangible Property is defined as machinery, furniture and other equipment, which the
Owner intends to hold or continue to use over a long period of time (one year or more).
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3.7.2 Contractors shall make available upon request detailed records of Contractor Supplied
Equipment that would be classified as Tangible Property.
3.7.3 This information shall be provided on disk in Microsoft Excel format and shall include
description, manufacturer, model number, installed location and contractor's cost.
3.8 TAXES
3.8.1 The Construction Manager shall pay all sales, consumer, use and other similar taxes for
the Work or portions thereof provided by the Construction Manager which are legally enacted
when Bids are received or negotiations concluded, whether or not yet effective or merely
scheduled to go into effect.
3.9 DIRECT MATERIAL PURCHASES
3.9.1 Intentionally Left Blank.
3.9.2 Intentionally Left Blank.
3.9.3 The Owner (or its purchasing agent) has the right to issue Purchase Orders for equipment
and materials which are included in the Cost of Work. The Contractor (or a subcontractor with
the Contractor's review and approval) may supply to the Owner a Schedule of Materials that the
Owner and Contractor mutually agree may be purchased by Owner. Each Purchase Order shall
be issued in one of two ways:
· BLANKET P.O. AMOUNT: In this instance, the Owner opens up a credit line or credit
account with a specific supplier. The account name then shall be called Boynton Beach
Community Redevelopment Agency c/o ABC Supplier Co. Any/All materials ordered
under that new account name are to be invoiced on a monthly basis. These invoices will
be issued to the OWNER in c/o the Construction Manager, with copies being mailed to
Boynton Beach Community Redevelopment Agency Project Manager as well. Owner
P.O. to be received against by the Boynton Beach Community Redevelopment Agency
at end of each month based on the approved invoice amount as authorized by the
Construction Manager.
· EXACT DOLLAR AMOUNT: In some instances, most likely for a piece of equipment
(for example: A Generator) an exact amount P.O. will be issued by the Owner to the
particular supplier with the subcontractor's P.O. attached as back-up which would
include the quantity, technical specifications, name of supplier and price. These invoices
will be mailed to the OWNER in c/o the Construction Manager, with copies being mailed
to the Boynton Beach Community Redevelopment Agency Project Manager as well.
3.9.4 Materials and equipment purchased and paid for by Owner (or its purchasing agent) shall
be delivered to and made available to the Construction Manager at the Project site (or at such
temporary location designated by Construction Manager) for the period of the Work.
Notwithstanding the Owner's purchase of any materials and equipment, the Construction
Manager shall assume responsibility for all manufacturers' warranties, delivery, and installation.
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3.10 PERMITS, FEES AND NOTICES
3.10.1 Unless otherwise provided in the Contract Documents, the Construction Manager shall
secure all permits required to perform the Work, and shall be reimbursed for the cost of such
permits by the Owner.
3.10.2 The Construction Manager shall comply with and give notices required by laws,
ordinances, rules, regulations and lawful orders of public authorities bearing on the performance
of the Work.
3.10.3 It is not the Construction Manager's responsibility to ascertain that the Contract
Documents are in accordance with applicable laws, statutes, building codes, rules and
regulations. However, Construction Manager shall consider all reasonable standards to confirm
the plans conform to the same.
3.10.4 If the Construction Manager performs Work knowing it to be contrary to laws, statutes,
ordinances, building codes, and rules and regulations without such notice to the Architect and
Owner, they shall assume full responsibility for such Work, and shall bear the attributable costs
3.10.5 Copies of any and all permits, licenses and certificates shall be available to the Architect
and Owner as soon as they are obtained.
3.11 CONSTRUCTION MANAGER'S CONSTRUCTION SCHEDULES
3.11.1 The Construction Manager shall, within ten (10) days from CRA approval of the
Guaranteed Maximum Price and prior to receipt of written Notice To Proceed and before the
first progress payment is approved for payment by the Owner, submit to the Owner and
Architect a complete Construction Schedule in the form of a Critical Path Method Schedule
(CPM). This and all other required schedules shall be received and approved by the Owner and
Architect for their content and completeness, prior to issuing a Notice To Proceed or any
payment to the Construction Manager. The schedule shall be based on a critical path analysis
of the construction activities and sequential operations needed for the orderly performance and
completion of any separable parts of or any and all Work in accordance with the Agreement.
This schedule shall follow the format of "CPM in Construction Management - Project
Management with CPM" or the Associated General Contractor (AGC)s, "The Use of CPM in
Construction - A Manual for General Contractors and the Construction Industry" (Latest Edition).
The Construction Schedule shall be complete in all respects, covering, in addition to all work,
activities and interfaces with the contractors at the Site of the Work, off-site activities such as
design or fabrication and allowance for delays, submittals, procurement and job-site delivery of
contractor furnished material and equipment. The Construction Manager shall make available a
detailed written narrative describing a plan of performing work to meet the Construction
Schedule. Total construction time should be the late finish date for the final activity of the project
and total milestone construction time should be the late finish date for the final activity of that
milestone.
The Construction Schedule shall include the following:
(a) activities showing scheduled start and finish,
(b) brief description of each activity,
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(c) relationships between activities,
(d) indication of activities with less than one (1) month of float,
(e) contractual and other major mile stones,
(f) monetary value of activity, keyed to the Schedule of Values and,
(g) the original submittal of the CPM network and each periodic update of the same shall be
accompanied by a separate listing of all activities on the Schedule, which shall include
the following:
1. a listing of all activities by activity description, each identified by node or activity
number,
2. the duration of each activity
3. the earliest start and finish dates for each activity and,
4. float time for each activity
As each duration, start date, finish date, and float times of each activity become actual; it shall
be noted as such on the periodic update of the activities listing. As each activity is completed, it
shall be noted as such on the periodic update of the activities listing.
The Construction Manager shall promptly inform the Owner and Architect of any proposed
change in the Schedule and narrative and shall make available to the Owner and Architect a
revised Schedule and narrative within ten (10) calendar days after approval by Owner and
Architect of such change. The Schedule, activities listing and narrative shall be kept current,
taking into account the actual progress of the Work and shall be updated and submitted to the
Owner and Architect every thirty (30) calendar days with the pay application.
The revised Schedule, activities listing and narrative shall be sufficient to meet the requirements
for the completion of the separable parts of any and all Work, as set forth in the Contract.
Based on the activities as shown on the required Schedule, a separate activities listing for
monthly progress payment purposes shall contain the following data for each activity to be paid
for: activity numbers, activity description, total value, percent previously paid, amount previously
paid percent, the payment request for period, amount of payment requested for period, total
percentage requested through current payment request, and total amount requested through
payment requests.
3.11.2 The Construction Manager shall prepare and keep current, for the Architect's approval, a
schedule of submittals which is coordinated with the Construction Manager's Construction
Schedule and allows the Architect reasonable time to review submittals.
3.11.3 The Construction Manager shall submit to the Owner and Architect, with each
"Application and Certificate for Payment", a copy of the approved progress Schedule marked to
show the percentage completed for each subdivision of the Work. The monthly submission shall
also state the estimated total number of days ahead of or behind the Contract Completion Date
should the Construction Manager fail to meet the approved CPM Schedule, documentation
acceptable to the Owner shall be provided to substantiate delays.
Construction Manager shall be required to show just cause for delays or for additional time
requests. Failure to comply with this subparagraph shall be sufficient grounds for the Owner or
19
Architect to find the Construction Manager in substantial default and certify that sufficient cause
exists to terminate the Contract or to withhold payment to the Construction Manager until an
updated Progress Schedule, acceptable to the Owner and Architect is submitted, reviewed and
approved. Such failure shall not be cause for additional time
3.11.4 The Construction Manager shall conform to the most recently approved Schedules.
3.12 DOCUMENTS AND SAMPLES AT THE SITE
3.12.1 The Construction Manager shall maintain at the Site for the Owner, one (1) record copy
of the Drawings, Specifications, Addenda, Change Orders and other Modifications, in good
order and marked currently to record changes made during construction, and in addition,
approved Shop Drawings, Product Data, Samples and similar required submittals. These shall
be available to the Architect and shall be delivered to the Architect for submittal to the Owner
upon completion of the Work and before final Payment is made.
3.12.2 The Construction Manager shall maintain all approved permits, drawings and other
documents at the site, so as to make them accessible to inspectors, the Architect and the
Owner at all times that the Work is in progress.
3.13 SHOP DRAWINGS, PRODUCT DATA AND SAMPLES
3.13.1 Shop Drawings are drawings, diagrams, schedules and other data specially prepared for
the Work by the Contractor or a subcontractor, sub-subcontractor, manufacturer, supplier or
distributor to illustrate some portion of the Work.
3.13.2 Product Data are illustrations, standard schedules, performance charts, instructions,
brochures, diagrams and other information furnished by the Construction Manager to illustrate
materials or equipment for some portion of the Work.
3.13.3 Samples are physical examples which illustrate materials, equipment or workmanship
and establish standards by which the Work will be judged.
3.13.4 Shop Drawings, Product Data, Samples and similar submittals are not Contract
Documents. The purpose of their submittals is to demonstrate for those portions of the Work for
which submittals are required the way the Construction Manager proposes to conform to the
information given and the design concept expressed in the Contract Documents. Review by the
Architect is subject to the limitations of Subparagraph 4.2.7.
3.13.5 The Construction Manager shall review and submit to the Architect, Shop Drawings,
Product Data, Samples and similar submittals required by the Contract Documents with
reasonable promptness and in such sequence as to cause no delay in the Work or in the
activities of the Owner or of separate contractors. Submittals made by the Construction
Manager which are not required by the Contract Documents may be returned without action. At
the time of submission, the Construction Manager shall inform the Architect in writing if the Shop
Drawings, Product Data or Samples deviate from the requirements of the Contract Documents.
3.13.6 The Construction Manager shall perform no portion of the Work requiring submittal and
review of Shop Drawings, Project Data, Samples or similar submittals until the respective
submittal has been approved by the Architect. Such Work shall be in accordance with approved
submittals.
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3.13.7 By approving and submitting Shop Drawings, Product Data, Samples and similar
submittals, the Construction Manager represents that the Construction Manager has determined
and verified materials and field construction criteria related thereto, or will do so, .and has
checked and coordinated the information contained within such submittals with the requirements
of the Work and of the Contract Documents.
3.13.8 The Construction. Manager shall not be relieved of responsibility for deviations from
requirements of the Contract Documents by the Architect's approval of Shop Drawings, Product
Data, Samples or similar submittals unless the Construction Manager has specifically informed
the Architect in writing of such deviation at the time of submittal and the Architect has given
written approval to the specific deviation. The Construction Manager shall not be relieved of
responsibility for errors or omissions in the Shop Drawings, Product Data, Samples or similar
submittals by the Architect's approval thereof.
3.13.9 The Construction Manager shall direct specific attention, in writing or on resubmitted
Shop Drawings, Product Data, Samples or similar submittals, to revisions other than those
requested by the Architect on previous submittals.
3.13.10 Informational submittals upon which the Architect is not expected to take responsive
action may be so identified in the Contract Documents.
3.13.11 When professional certification of performance criteria of materials, systems or
equipment is required by the Contract Documents, the Architect shall be entitled to rely upon the
accuracy and completeness of such calculations and certifications.
3.14 USE OF SITE
3.14.1 The Construction Manager shall confine operations at the Site to areas permitted by law,
ordinances, permits and Contract Documents, and shall not unreasonably encumber the Site
with materials or equipment.
3.15 CUTTING AND PATCHING
3.15.1 The Construction Manager shall be responsible for all cutting, fitting or patching required
to complete the Work or to make its parts fit together properly.
3.15.2 The Construction Manager shall not damage or endanger a portion of the Work or fully or
partially completed construction by the Owner or separate contractors by cutting, patching or
otherwise altering such construction, or by excavation. The Construction Manager shall not cut
or otherwise alter such construction by the Owner, or a separate contractor, except with the
written consent of the Owner and of such separate contractor; such consent shall not be
unreasonably withheld from the Owner or a separate contractor, the Contractor's consent to
cutting or otherwise altering the Work. In addition, all cutting and patching shall be in
accordance with Division One, of the Project Manual.
3.15.3 When cutting into existing work will result in any interruption of existing utility or other
services to an existing building, the Construction Manager shall provide specific notice to the
Owner in sufficient time to allow the Owner to minimize or avoid the disruption of service. The
Construction Manager shall fully accommodate the Owner's reasonable needs in that regard
including, but not limited to, adhering to a schedule established by the Owner for this work.
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3,16 CLEANING UP
3.16.1 The Construction Manager shall keep the premises and surrounding area free from
accumulation of waste materials or rubbish caused by operations under the Contract (see
Project Specifications). At completion of the Work, the Contractor shall remove from and about
the Project waste materials, rubbish, the Contractor's tools, construction equipment, machinery
and surplus materials.
3.16.2 If the Contractor fails to clean up as provided in the Contract Documents, the Owner may
do so and the cost thereof shall be charged to the General Conditions of the Guaranteed
Maximum Price.
3.17 HARMONY
Construction Manager is advised and hereby agrees that he will exert every reasonable and
diligent effort to assure that all labor employed by Construction Manager and his Sub-
Contractors for work on the project shall work in harmony with and be compatible with all other
labor being used on the site of the project.
Construction Manager further agrees that this provision will be included in all Sub-Contracts of
the Sub-Contractors as well as the contractors own contract; provided, however, that this
provision shall not be interpreted or enforced so as to deny or abridge, on account of
membership or non-membership in any labor union or labor organization, the right of any person
to work as guaranteed by Article 1, Section 6 of the Florida Constitution.
3.18 APPRENTICES
If the Construction Manger employs apprentices on the project, the behavior of the Construction
Manager and the Owner shall be governed by the provisions of Chapter 446, Florida Statutes
and by applicable standards and policies governing apprentice programs and agreements
established by the Division of Labor of the State of Florida Department of Labor and
Employment Security. The Construction Manager will include a provision similar to the foregoing
sentence in each subcontract.
3.19 UNAUTHORIZED ALIENS
The Boynton Beach Community Redevelopment Agency shall consider the employment by any
Construction Manager of unauthorized aliens a violation of section 174A (e) of the Immigration
and Nationalization Act. Such violation shall be cause for unilateral cancellation of this contract.
3.20 ACCESS TO WORK
The Construction Manager shall provide the Owner and Architect access to the Work in
preparation and progress wherever located.
3.21 ROYALTIES AND PATENTS
The Construction Manager shall pay all royalties and license fees: The Construction Manager
shall defend suits or claims for infringement of patent rights and shall hold the Owner harmless
from loss on account thereof, but shall not be responsible for all such defense or loss when a
particular design, process or product of a particular manufacturer or manufacturers is required
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by the Contract Documents. However, if the Construction Manager has reason to believe that
the required design, process or product is an infringement of a patent, the Construction
Manager shall be responsible for such loss unless such information is promptly furnished to the
Architect.
3.22 INDEMNIFICATION
3.22.1 To the fullest extent permitted by law, the Construction Manager shall defend, indemnify
and hold harmless the Owner, Architect, Architect's Consultants, and their agents and
employees or any of them from and against claims, damages, losses and expenses, including
but not limited to attorneys' fees, arising out of or resulting from performance of the Work,
provided that such claim, damage, loss or expense is attributable to bodily injury, sickness,
disease or death or to injury to or destruction of tangible property including the loss of use
resulting therefrom, but only to the extent caused in whole or in part by negligent acts or
omissions of the Construction Manager, a Subcontractor, anyone directly or indirectly employed
by them or anyone for whose acts they may be liable. Such obligation shall not be construed to
negate, abridge or reduce other rights or obligations of indemnity which would otherwise exist
as to a party or person described in this Paragraph 3.22.1.
3.22.2 A claim against any person or entity indemnified under Paragraph 3.22.1 by an employee
of the Contractor, a Subcontractor, anyone directly or indirectly employed by them or anyone for
whose acts they may be liable, the indemnification obligation under Paragraph 3.22.1 shall not
be limited by a limitation on amount or type of damages, compensation or benefits payable by or
for the Contractor or any Subcontractor under worker's or workmen's compensation acts,
disability benefit acts or other employee benefit acts.
3.22.3 The obligations of the Construction Manager under Paragraph 3.22.1 shall not extend to
the liability of the Architect, the Architect's consultants, and agents and employees of any of
them arising out of (1) the preparation or approval of maps, drawings, opinions, reports,
surveys, Change Orders, designs or specifications, or (2) the giving of or failure to give
directions or instructions by the Architect, the Architect's consultants, and agents and
employees of any of them provided such giving or failure to give is the primary cause of the
injury or damage.
3.22.4 The purchase of insurance by the Construction Manager with respect to the obligations
required herein shall in no event be construed as fulfillment's or discharge of such obligations.
3.22.5 None of the foregoing provisions shall deprive the Owner or the Architect of any action,
right or remedy otherwise available to them or any of them by common law. In the event that
any party is requested but wrongfully refuses to honor the indemnity obligations hereunder, then
the party indemnifying shall, in addition to all other obligations, pay the cost of bringing any such
action.
3.23 DISCLOSURE OF PROJECT INFORMATION
3.23.1 The Construction Manager speCifically acknowledges that he is aware of the potential
security problems that might arise from a disclosure of the matters upon which it is working.
Accordingly, he will take all actions necessary to ensure that building plans, blueprints,
schematic drawings, and diagrams, including draft, preliminary, and final formats, which depict
the internal layout and structural elements of any building, arena, stadium, water treatment
facility, or other structure owned or operated by the Boynton Beach Community Redevelopment
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Agency or any security system plans relating to any such building, arena, stadium, water
treatment facility, other structure, will not be disclosed to any entities or persons except to
enable that entity or person to perform work on or related to the building, arena, stadium, water
treatment facility, or other structure owned or operated by the Boynton Beach Community
Redevelopment Agency; or upon a showing of good cause before a court of competent
jurisdiction. In addition, the Construction Manager will take all actions necessary to ensure that
the entities or persons receiving such information will maintain the non-disclosure status of the
information.
ARTICLE 4
ADMINISTRATION OF THE CONTRACT
4.1 DEFINITIONS
4.1.1 The Architect is the person lawfully licensed to practice Architecture or an entity lawfully
practicing Architecture identified as such in the Agreement and is referred to throughout the
Contract Documents as if singular in number. The term "Architect" means the Architect or the
Architect's authorized representative.
4.1.2 Duties, responsibilities and limitations of authority of the Architect as set forth in the
Contract Documents shall not be restricted, modified or extended without written consent of the
Owner and Architect. Consent shall not be unreasonably withheld.
4.1.3 In case of termination of employment of the Architect, the Owner shall appoint an Architect
and whose status under the Contract Documents shall be that of the former Architect.
4.1.4 Disputes arising under Subparagraphs 4.1.2 and 4.1.3 shall be subject to litigation by a
court of competent jurisdiction.
4.2 ARCHITECT'S ADMINISTRATION OF THE CONTRACT
4.2.1 The Architect will provide administration of the Contract as described in the Contract
Documents, (1) during construction, (2) until final payment is due and (3) with the Owner's
concurrence, from time to time during the correction period described in subparagraph 11.2.2.
The Architect will advise and consult with the Owner. The Architect will have authority to act on
behalf of the Owner only to the extent provided in the Contract Documents, unless otherwise
modified by written instrument in accordance with other provisions of the Agreement.
4.2.2 The Architect will visit the site at intervals appropriate to the stage of construction to
become familiar with the progress and quality of the completed Work and to determine if the
Work is being performed in a manner indicating that the Work, when completed, will be in
accordance with the Contract Documents. The Architect will be required to make on-site
inspections to check quality and quantity of the Work at such intervals so as to insure
conformance with the Contract Documents. On the basis of on-site observations and
inspections as an Architect, the Architect will keep the Owner informed of progress of the Work,
and will guard the Owner against defects and deficiencies in the Work.
4.2.3 The Architect will not have control over or charge of and will not be responsible for
construction means, methods, techniques, sequences or procedures, or for safety precautions
and programs in connection with the Work, since these are solely the Construction Manager's
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responsibility as provided in Paragraph 3.3. The Architect will not be responsible for the
Construction Manager's failure to carry out the Work in accordance with the Contract
Documents subject to the requirements in subparagraph 4.2.2. The Architect will not have
control over or charge of and will not be responsible for acts or omissions of the Construction
Manager, Subcontractors, or their agents or employees, or of any other persons performing
portions of the Work subject to the requirements in subparagraph 4.2.2.
4.2.4 Communications Facilitating Contract Administration. Except as otherwise provided in the
Contract Documents or when direct communications have been specially authorized, the Owner
and Construction Manager shall endeavor to communicate through the Architect.
Communications by and with the Architect's consultants shall be through the Architect.
Communications by and with Subcontractors and material suppliers shall be through the
Construction Manager. Communications by and with separate contractors shall be through the
Owner.
4.2.5 Based on the Architect's observations and evaluations of the Construction Manager's
"Applications for Payment," the Architect will review and certify the amounts due the
Construction Manager and will issue "Certificates for Payment" in such amounts.
4.2.6 The Architect will have authority to reject Work which does not conform to the Contract
Documents. Whenever the Architect considers it necessary or advisable for implementation of
the intent of the Contract Documents, the Architect will have authority to require additional
inspections or testing of the Work in accordance with SUbparagraphs 1.9.2 and 1.9.3, whether
or not such Work is fabricated, installed or completed. However, neither this authority of the
Architect nor a decision made in good faith either to exercise or not to exercise such authority
shall give rise to a duty or responsibility of the Architect to the Construction Manager,
Subcontractors, material and equipment suppliers, their agents or employees, or other persons
performing portions of the Work.
4.2.7 The Architect will review and approve or take other appropriate action upon the
Contractor's submittals such as Shop Drawings, Product Data and Samples, but only for the
purpose of checking for conformance with information given and the design concept expressed
in the Contract Documents.
The Architect's action will be taken with such reasonable promptness as to cause no delay in
the Work or in the activities of the Owner, Construction Manager or separate contractors, while
allowing sufficient time in the Architect's professional judgment to permit adequate review.
Review of such submittals is not conducted for the purpose of determining the accuracy and
completeness of other details such as dimensions and quantities, or for substantiating
instructions for installation or performance of equipment or systems, all of which remain the
responsibility of the Construction Manager as required by the Contract Documents. The
Architect's review of the Contractor's submittals shall not relieve the Construction Manager of
obligations under Subparagraphs 3.3, 3.5 and 3.11. The Architect's review shall not constitute
approval of safety precautions or, unless otherwise specifically stated by the Architect, of any
construction means, methods, techniques, sequences or procedures. The Architect's approval
of a specific item shall in no way indicate approval of an assembly of which the item is a
component. Architect shall review all submittals within ten (10) working days of submission.
4.2.7.1 The Construction Manager shall not submit any Shop Drawing(s) that is merely a tracing
or other copy of any of the Contract Documents. Each Shop Drawing must be prepared by the
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Contractor, a subcontractor or supplier of the Contractor. The Architect shall have the authority
to reject any Shop Drawing that violates this provision, and no extension of the Contract time
shall be given on account of such rejection.
4.2.8 The Architect will prepare Change Orders and Construction Change Directives, and may
authorize minor changes in the Work as provided in Article 7
4.2.9 The Architect will conduct inspections to determine the date or dates of Substantial
Completion and the date of Final Completion; will receive and forward to the Owner for the
Owner's review and records written warranties and related documents required by the Contract
and assembled by the Contractor; and will issue a final "Certificate for Payment" upon
compliance with the requirements of the Contract Documents.
4.2.10 At the request of the Owner, the Architect will provide one (1) or more project
representatives to assist in carrying out the Architect's responsibilities at the site. The duties,
responsibilities and limitations of authority of such project representatives shall be as set forth in
an exhibit to be incorporated in the Contract Documents or in the Architect's Agreement with the
Owner.
4.2.11 The Architect will interpret and decide matters concerning performance under and
requirements of the Contract Documents on written request of either the Owner or Construction
Manager. The Architect's response to such requests will be made with reasonable promptness
and within any time limits agreed upon. If no agreement is made concerning the time within
which interpretations required of the Architect shall be furnished in compliance with this
Subparagraph 4.2.11, then delay shall not be recognized on account of failure by the Architect
to furnish such interpretations until 15 days after written request is made for them.
Interpretations and decisions of the Architect will be consistent with the intent of and reasonably
inferable from the Contract Documents and will be in writing or in the form of drawings. When
making such interpretations and decisions, the Architect will endeavor to secure faithful
performance by both Owner and Construction Manager, will not show partiality to either and will
not be liable for results of interpretations or decisions so rendered in good faith except as
permitted by law. The Architect's decisions on matters relating to aesthetic effect will be final if
consistent with the intent expressed in the Contract Documents and the Owner.
4.3 CLAIMS AND DISPUTES
4.3.1 A Claim is a demand or assertion by one of the parties seeking, as a matter of right,
adjustment or interpretation of Contract terms, payment of money, extension of time or other
relief with respect to the terms of the Contract. The term, "Claim", also includes other disputes
and matters in question between the Owner and Construction Manager arising out of, or relating
to, the Contract. Claims must be made by written notice. The responsibility to substantiate
Claims shall rest with the party making the Claim.
4.3.2 Decision of Architect. Claims, including those alleging an error or omission by the
Architect shall be referred initially to the Architect for action as provided in Paragraph 4.4 and
4.5. A decision by the Architect shall be required as a condition precedent to litigation of a Claim
between the Construction Manager and Owner and/or Architect as to all such matters arising
prior to the date final payment is due, regardless of (1) whether such matters relate to execution
and progress of the Work or (2) the extent to which the Work has been completed. The decision
by the Architect in response to a claim shall not be a condition precedent to litigation in the
26
event (1) the position of Architect is vacant, (2) the Architect has not received evidence or has
failed to render a decision within agreed time limits, (3) the Architect has failed to take action
required under Paragraph 4.5 within 30 days after the Claim is made or (4) 45 days have
passed after the Claim has been referred to the Architect. The parties hereto waive arbitration
and agree to litigate in a court of competent jurisdiction when such claims arise. Venue shall lie
in Palm Beach County, Florida.
4.3.3 Time Limits on Claims. Claims by either party must be made within 7 days after
occurrence of the event giving rise to such Claim or within 7 days after the claimant first
recognizes the condition giving rise to the Claim, whichever is later, or such claim is deemed
waived. Claims must be made by written notice. An additional Claim made after the initial Claim
that has been implemented by Change Order will not be considered.
4.3.4 Continuing Contract Performance. Pending final resolution of a Claim, unless otherwise
agreed in writing, the Construction Manager shall proceed diligently with performance of the
Contract and the Owner shall continue to make payments in accordance with the Contract
Documents, except as otherwise provided herein.
4.3.5 Waiver of Claims: Final Payment. The making of final payment shall constitute a waiver
of Claims by the Owner except those arising from:
(a) liens, claims, security interests or encumbrances arising out of the Contract and unsettled;
(b) failure of the Work to comply with the requirements of the Contract Documents; or
(c) terms of warranties and guarantees required by the Contract Documents; and
(d) defects in the Work.
4.3.6 Claims for Concealed or Unknown Conditions: If conditions are encountered at the site
which are (1) subsurface or otherwise concealed physical conditions which differ materially from
those indicated in the Contract Documents or (2) unknown physical conditions of an unusual
nature, which differ materially from those ordinarily found to exist and generally recognized as
inherent in construction activities of the character provided for in the Contract Documents. then
notice by the observing party shall be given to the other party promptly before conditions are
disturbed, and in no event later than 21 days after first observance of the conditions. The
Architect will promptly investigate such conditions and, if they differ materially and cause an
increase or decrease in the Construction Manager's cost of, or time required for, performance of
any part of the Work, will recommend an equitable adjustment in the GMP or Contract Time or
both. If the Architect determines that the conditions at the site are not materially different from
those indicated in the Contract Documents and that no change in the terms of the Contract is
justified, the Architect shall so notify the Owner and Construction Manager in writing, stating the
reasons. Claims by either party in opposition to such determination must be made within 21
days after the Architect has given notice of the decision. If the Owner and Construction Manager
cannot agree on an adjustment in the Contract Sum or Contract Time, the adjustment shall be
referred to the Architect for initial determination, subject to further proceedings pursuant to
Paragraph 4.4.
4.3.7 Claims for Additional Cost. If the Construction Manager wishes to make Claim for an
increase in the GMP, written notice as provided herein shall be given before proceeding to
execute the Work. Prior notice is not required for Claims relating to an emergency endangering
life or property arising under Paragraph 10.3. If the Construction Manager believes additional
cost is involved for reasons including but not limited to (1) a written interpretation from the
Architect, (2) an order by the Owner to stop the Work where the Construction Manager was not
27
at fault, (3) a written order for a minor change in the Work issued by the Architect, (4) failure of
payment by the Owner, (5) termination of the Contract by the Owner,(6) Owner's suspension or
(7) other reasonable grounds, the Claim shall be filed in accordance with the procedure
established herein. There shall be no claim for escalation of materials and/or labor during the
contract period.
4.4 CLAIMS FOR ADDITIONAL TIME
4.4.1 If the Construction Manager wishes to make Claim for an increase in the Contract Time,
written notice as provided herein shall be given. The Construction Manager's Claim shall include
an estimate of cost and of probable effect of delay on progress of the Work. In case of a
continuing delay, only one (1) Claim is necessary.
4.4.2 If adverse weather conditions are the basis for a Claim for additional time, such Claim
shall be documented by data substantiating that weather conditions were abnormal for the
period of time and could not have been reasonably anticipated and that weather conditions had
an adverse effect on the scheduled construction. For the purpose of determining weather
conditions, the parties agree to use the National Climatic Center in Ashville, N.C., or such other
nationally recognized sources for determining the same.
4.4.3 Injury or Damage to Person or Property. If either party to the Contract suffers injury or
damage to person or property because of an act or omission of the other party of any of the
other party's employees or agents, or of others for whose acts such party is legally liable, written
notice of such injury or damage, whether or not insured, shall be given to the other party within
a reasonable time not exceeding 21 days after first observance. The notice shall provide
sufficient detail to enable the other party to investigate the matter. If a Claim for additional cost
or time related to this Claim is to be asserted, it shall be filed as provided in Subparagraph
4.3.7.
4.5 RESOLUTION OF CLAIMS AND DISPUTES
4.5.1 The Architect will review Claims and take one or more of the following preliminary actions
within 10 days of receipt of a Claim: (1) request additional supporting data from the claimant, (2)
submit a schedule to the parties indicating when the Architect expects to take action, (3) reject
the Claim in whole or in part, stating reasons for rejection, (4) recommend approval of the Claim
by the other party, or (5) suggest a compromise.
The Owner intends to encourage the concept of "partnering" as an integral aspect of this
contract, and encourages both the Construction Manager and Architect to endeavor to partner
with the Owner to solve any disputes that arise during the performance of this Contract.
4.5.2 If a Claim has been resolved, the Architect will prepare or obtain appropriate
documentation.
4.5.3 If a Claim has not been resolved, the party making the Claim shall, within 10 days after
the Architect's preliminary response, take one or more of the following actions: (1) submit
additional supporting data requested by the Architect, (2) modify the initial Claim or (3) notify the
Architect that the initial Claim stands.
4.5.4 If a Claim has not been resolved after consideration of the foregoing and of further
evidence presented by the parties or requested by the Architect, the Architect will notify the
28
parties in writing that the Architect's decision will be made within seven (7) days, which decision
shall be final and binding on the parties but subject to litigation. Upon expiration of such time
period, the Architect will render to the parties the Architect's written decision relative to the
Claim, including any change in the GMP or Contract Time or both. If there is a Surety and there
appears to be a possibility of a Construction Manager's default, the Architect shall notify the
Surety and request the Surety's assistance in resolving the controversy.
4.6 LITIGATION
4.6.1 Controversies and Claims are subject to Litigation. Any controversy or claim arising out
of or related to the Contract or the breach thereof, shall be settled by litigation, except
controversies or claims relating to aesthetic effect and except those waived as provided for in
Subparagraph 4.3.3 & 4.3.5.
4.6.2 Contract Performance During Litigation. During litigation proceedings, the Owner and
Construction Manager shall comply with Subparagraph 4.3.4.
4.6.3 When Litigation may be demanded. Demand for litigation of any Claim may not be made
until the earlier of (1) the date on which the Architect has rendered a final written decision on the
Claim, (2) the tenth day after the parties have presented evidence to the Architect or have been
given reasonable opportunity to do so, if the Architect has not rendered a final written decision
by that date, or (3) any of the four (4) events described in Subparagraph 4.3.2.
4.6.4 When a written decision of the Architect states that (1) the decision is final but subject to
litigation and (2) a demand for litigation of a Claim covered by such decision must be made
within 30 days after the date on which the party making the demand receives the final written
decision, then failure to demand litigation within said 30 day period shall result in the Architect's
decision becoming final and binding upon the Owner and Contractor. If the Architect renders a
decision after litigation proceedings have been initiated, such decision may be entered as
evidence, but shall not supersede litigation proceedings unless the decision is acceptable to all
parties concerned.
4.6.5 Notwithstanding the foregoing prior to instituting litigation the parties may submit to non-
binding mediation in Palm Beach County (Florida).
ARTICLE 5
SUBCONTRACTORS
5.1 DEFINITIONS
A Subcontractor is a person or an entity who has a direct contract with the Construction
Manager to perform a portion of the Work at the Site. The term "Subcontractor" is referred to
throughout the Contract Documents as if singular in number and means a Subcontractor or an
authorized representative of the Subcontractor. The term "Subcontractor" does include any
separate contractor or subcontractors of a separate contractor.
A Sub-subcontractor is a person or entity who has a direct or indirect .contract with a
Subcontractor to perform a portion of the Work at the Site. The term "Sub-subcontractor" is
referred to throughout the Contract Documents as if singular in number and means a Sub-
subcontractor or an authorized representative of the Sub-subcontractor.
29
Nothing contained in the Contract Documents shall create any contractual relationship between
the Owner and Subcontractor or Sub-subcontractor
All Subcontractors and Sub-subcontractors shall have a required "Occupational License"
appropriate for the location of the Work and a "Certificate of Competency" or "State License" for
those trades that require such Certificates or Licenses.
5.2 AWARD OF SUBCONTRACTS AND OTHER CONTRACTS FOR PORTIONS OF THE
WORK
5.2.1 The Construction Manager shall make available to the Owner, and the Architect, the
names of the persons or entities (including those who are to furnish materials or equipment
fabricated to a special design) proposed for each of the principal portions of the Work. The
Owner will reply to the Construction Manager in writing stating whether or not the Owner or the
Architect, after due investigation, has reasonable objection to any such proposed person or
entity. Failure of the Owner and Architect to reply promptly shall constitute notice of no
reasonable objection.
5.2.2 The Construction Manager shall not contract with any such proposed person or entity to
whom the Owner or the Architect has made reasonable and timely objection. The Construction
Manager shall not be required to contract with anyone to whom the Construction Manager has
made reasonable objection.
5.2.3 Following the Solicitation of Bids, if the Owner or the Architect has reasonable objection
to a person or entity proposed by the Construction Manager, the Construction Manager shall
propose another to whom the Owner or the Architect has no objection. The proposed base cost
for construction shall be increased or decreased by the difference in cost occasioned by such
change. If necessary an appropriate construction change order shall be issued.
5.2.4 The Construction Manager shall not change a Subcontractor, person or entity previously
selected if the Owner or Architect makes reasonable objection to such change.
5.3 SUBCONTRACTUAL RELATIONS
5.3.1 By appropriate agreement, written where legally required for validity, the Construction
Manager shall require each Subcontractor, to the extent of the Work to be performed by the
Subcontractor, to be bound to the Construction Manager by terms of the Contract Documents,
and to assume toward the Construction Manager all the obligations and responsibilities which
the Construction Manager, by these Documents assumes toward the Owner and Architect.
Each subcontract agreement shall preserve and protect the rights of the Owner and Architect
under the Contract Documents with respect to the Work to be performed by the Subcontractor
so that subcontracting thereof will not prejudice such rights, and shall allow to the
Subcontractor, unless specifically provided otherwise in the subcontract agreement, the benefit
of all rights, remedies and redress against the Construction Manager that the Construction
Manager, by the Contract Documents, has against the Owner. The Construction Manager shall
require each Subcontractor to enter into similar agreements with Sub-subcontractors. The
Construction Manager shall make available to each proposed Subcontractor, prior to the
execution of the Subcontract, copies of the Contract Documents to which the Subcontractor will
be bound, and, upon written request of the Subcontractor, identify to the Subcontractor terms
and conditions of the proposed subcontract agreement which may be at variance with the
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Contract Documents. Subcontractors shall similarly make copies of applicable portions of such
documents available to their respective proposed Sub-subcontractors.
5.4 CONTINGENT ASSIGNMENT OF SUBCONTRACTS
5.4. Each subcontract agreement for a portion of the Work is assigned by the Construction
Manager to the Owner provided that:
(a) Assignment is effective only after termination of the Agreement by the Owner for cause
pursuant to Article 12 and only for those subcontract agreements which the Owner accepts by
notifying the Subcontractor in writing;
(b) Assignment is subject to the prior rights of the surety, if any, obligated under bond relating to
the Contract; and
(c) If requested by Owner, the Construction Manager shall submit to the Owner a copy of each
subcontract. Each subcontract shall contain a contingent assignment of the subcontract to the
Owner.
ARTICLE 6
CONSTRUCTION BY OWNER OR BY SEPARATE CONTRACTORS
6.1 OWNER'S RIGHT TO PERFORM WORK AND TO AWARD SEPARATE CONTRACTS
6.1.1 The Owner reserves the right to perform construction or operations related to the Project
with the Owner's own forces, or though the award of one or more separate contracts to one or
more separate contractors if the scope of the work changes during the term of this Agreement
and the Owner and Construction Manager are unable to agree as to the Construction Manager's
timely performance of such changed scope of work. Additionally, the Owner reserves the right to
award separate Contracts in connection with other portions of the Project or other construction
or operations on the Site under Conditions of the Contract identical or substantially similar to
these including those portions related to insurance waiver of subrogation. If the Construction
Manager claims that delay or additional cost is involved because of such action by the Owner,
the Construction Manager shall make claim as provided elsewhere in the Contract Documents
and subject to the limitations as contained herein.
6.1.2 When separate contracts are awarded for different portions of the Project or other
construction or operations on the Site, the term "Contractor" in the Contract Documents in each
case, shall mean the Contractor who executes each separate Owner-Contractor Agreement.
6.1.3 The Owner shall provide for coordination of the activities of the Owner's own forces and
of each separate contractor with the Work of the Construction Manager, who shall cooperate
with them. The Construction Manager shall make any revisions to the construction schedule and
Contract Sum deemed necessary after a joint review and mutual agreement. The construction
schedules shall then constitute the schedules to be used by the Construction Manager,
separate contractors and the Owner until subsequently revised.
6.1.4 Unless otherwise provided in the Contract documents, when the Owner performs
construction or operations related to the Project with the Owner's own forces, the Owner shall
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be deemed to be subject to the same obligations and to have the same rights which apply to the
Construction Manager under the Conditions of the Contract, including, without excluding others,
those stated in Article 3, this Article 6 and Articles 9, 10, and 11
6.1.5 Notwithstanding any other provision of the Contract Documents, should the Construction
Manager sustain loss or be damaged by acts or omissions of a separate Contractor, the Owner
shall not be liable for any such loss or damage and the Construction Manager shall not be
entitled to obtain any monetary relief from the Owner to compensate for any such loss or
damage, but shall be limited to such recovery as is otherwise available at law from persons
and/or entities other than the Owner,
6.2 MUTUAL RESPONSIBILITY
6.2.1 The Construction Manager shall afford the Owner and separate contractor's reasonable
opportunity for the introduction and storage of their materials and equipment and performance
of their activities, and shall connect and coordinate the Contractor's and operations with theirs
as required by the Contract Documents,
6.2.2 If any part of the Construction Manager's Work depends for proper execution or results
upon construction or operations by the Owner or a separate contractor, the Construction
Manager shall, prior to proceeding with that portion of the Work, promptly report to the Architect
and Owner apparent discrepancies or defects in such other construction that render it unusable
for such proper execution and results. Failure of the Construction Manager to so report shall
constitute an acknowledgment that the Owner's or separate contractors' completed or partially
completed construction is fit and proper to receive the contractor's Work except as to defects
not then reasonably discoverable,
6.2.3 Costs caused by delays or by improperly timed activities or defective construction shall
be borne by the party responsible therefore. These are in addition to Liquidated Damages.
6.2.4 The Construction Manager shall promptly remedy damage wrongfully caused by the
Construction Manager to completed or partially completed construction or to property of the
Owner or separate Contractors as provided in Subparagraph 10.2.7. If such separate contractor
sues the Owner on account of any damage alleged to have been caused by the Construction
Manager, the Owner shall notify the Construction Manager who shall defend such proceedings
at the Construction Manager's expense, and if any judgment or award against the Owner arises
therefrom, the Construction Manager shall payor satisfy it and shall reimburse the Owner for all
attorney's fees and costs which the Owner has incurred,
6.2.5 Claims and other disputes and matters in question between the Construction Manager
and a separate contractor shall be subject to the provisions of Paragraph 4,3 provided the
separate contractor has reciprocal obligations.
6.3.6 The Owner and each separate contractor shall have the same responsibilities for cutting
and patching as are described for the Construction Manager in Paragraph 3,15.
6.3 OWNER'S RIGHT TO CLEAN UP
6.3.1 If a dispute arises among the Construction Manager, contractors and the Owner as to
the responsibility under their respective contracts for maintaining the premises and surrounding
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area free from waste materials and rubbish as described in Paragraph 3.16, the Owner may
clean up and allocate the cost among those responsible as the Architect determines to be just.
ARTICLE 7
CHANGES IN THE WORK
7.1 Changes
The Owner, without invalidating this Agreement, may order Changes in the Work within the
general scope of this Agreement consisting of additions, deletions or other revisions. The GMP
and the Construction Completion Date may be adjusted accordingly upon executed
amendment. All changes in the Project not covered by the authorized contingency shall be
authorized by Change Order, Construction Change Directive (CCD) or order for minor change in
the project, subject to any limitations stated in Article 7 or elsewhere in the contract documents.
7.1.1 A Change Order shall be based upon agreement among the Owner, Contractor and
Architect. A CCD requires agreement by the Owner and Architect and mayor may not be
agreed to by the Construction Manager.
7.1.2 Changes in the Project shall be performed under applicable provisions of the Contract
Documents, and the Construction Manager shall proceed promptly, unless otherwise provided
in the Change Order, CCD or order for a minor change in work.
7.2 Change Orders
7.2.1 A Change Order is a written instrument prepared by the Architect and signed by the
Owner, Construction Manager and Architect, stating their agreement upon all of the following:
1. a change in the project
2. the amount of the adjustment in the Guaranteed Maximum Price, if any; and
3. the extent of the adjustment in the Contract Time, if any.
7.2.2 The increase or decrease in the Guaranteed Maximum Price resulting from a Change
Order shall be determined in one or more of the following ways:
1. by mutual acceptance of a lump sum properly itemized and supported by sufficient
substantiating data to permit evaluation by the Architect and Owner;
2. by unit prices stated in the Contract Documents or subsequently agreed upon;
3. by cost as defined in Article 9 and mutually acceptable fixed or percentage fee; or
4. by the method provided in subparagraph 7.2.3.
7.2.3 If none of the methods set forth in subparagraph 7.2.2 is agreed upon, the Construction
Manager, provided he receives a written order signed by the Owner and Architect, shall
promptly proceed with the Work involved. The cost of such Work shall then be determined on
the basis of the reasonable expenditures and savings of those performing the Work attributed to
the change. However, in the event a Change Order is issued under these conditions, the
Architect will establish an estimated cost of the work and the Construction Manager shall not
perform any work whose cost exceeds that estimate without prior written approval by the
Owner. In such case, and also under subparagraph 7.2.1 above, the Construction Manager
shall keep and present, in such form as the Owner may prescribe, an itemized accounting
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together with appropriate supporting data of the increase in the Cost of the Project as outlined in
Article 9. The amount of decrease in the GMP to be allowed by the Construction Manager to the
Owner for any deletion or change which results in a net decrease in cost will be the amount of
the actual net decrease.
7.2.4 If unit prices are stated in the Agreement or subsequently agreed upon, and if the
quantities originally contemplated are so changed in a proposed Change Order that application
of the agreed unit prices to the quantities of Work proposed will cause substantial inequity to the
Owner or the Construction Manager, the applicable unit prices and GMP shall be equitably
adjusted as approved by Architect and Owner.
7.2.5 Should concealed conditions encountered in the performance of the Work below the
surface of the ground or should concealed or unknown conditions in an existing structure be at
variance with the conditions indicated by the Drawings, Specifications, or Owner furnished
information or should unknown physical conditions below the surface of the ground or should
concealed or unknown conditions in an existing structure of an unusual nature, differing
materially from those ordinarily encountered and generally recognized as inherent in work of the
character provided for in this Agreement, be encountered, the GMP and the Construction
Completion date mall be equitably adjusted by Change Order upon a request for Change Order
in accordance with this Article 7
7.3 Construction Change Directives
7.3.1 A Construction Change Directive (CCD) is a written order prepared by the Architect and
signed by the Owner and Architect, directing a change in the Project and stating a proposed
basis for adjustment, and if any, in the GMP or Contract Time, or both. The Owner may by CCD,
without invalidating the Contract, order changes in the Project within the general scope of the
Contract consisting of additions, deletions or other revisions, the GMP and Contract Time being
adjusted accordingly. A CCD shall be used in the absence of total agreement on the terms of a
Change Order.
7.3.2 If the CCD provides for an adjustment to the GMP, the adjustment shall be based on one
of the following methods:
1. mutual acceptance of a lump sum properly itemized and supported by sufficient
substantiating data to permit evaluations;
2. unit prices stated in the Contract Documents or subsequently agreed upon;
3. cost to be determined in a manner agreed upon by the parties and a mutually acceptable
fixed or percentage fee;
4. or as provided in subparagraph 7.3.5
7.3.3 Upon receipt of a CCD, the Construction Manager shall promptly proceed with the
change in the Project involved and advise the Architect of the Construction Manager's
agreement or disagreement with the method, if any, provided in the CCD for determining the
proposed adjustment in the GMP or Contract Time.
7.3.4 A CCD signed by the Construction Manager indicates the agreement of the Construction
Manager's therewith, including the adjustment in the GMP and Contract Time or the method for
determining them. Such agreement shall become effective immediately and shall be recorded
as a Change Order.
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7.3.5 If the Construction Manager does not respond promptly or disagrees with the method for
adjustment in the GMP, the method and adjustment shall be determined by the Architect on the
basis of reasonable expenditures and saving of those performing the work attributable to the
change, including, in case of an increase in the GMP, a reasonable allowance for overhead and
profit. In such case, the Construction Manager shall keep and present, in such form as the
Architect may prescribe, an itemized accounting together with appropriate supporting data.
Unless otherwise provided in the Contract Documents, costs for the purposes of this
subparagraph 7.3.5 shall be limited to the following:
1. costs of labor;
2. costs of materials, supplies and equipment, including cost of transportation;
3. rental costs of machinery and equipment, exclusive of hand tools;
4. costs of premiums for additional bonds and insurance, fees and taxes related to the work;
5. additional costs of supervision and field office personnel directly attributable to the change, if
impacts to the critical path schedule can be documented.
7.3.6 Pending final determination of cost to the Owner, amounts not in dispute may be
included in Applications for Payment. The amount of credit to be allowed by the Construction
Manager to the Owner for a deletion or change, which results in a net decrease in the GMP
shall be, the actual net cost as determined by the Architect. When both additions and credits
covering related work or substitutions are involved in a change, any allowance for overhead and
profit shall be established as provided in this Article 7.
7.3.7 The cost allowance for overhead and profit shall not exceed a total of 15% of the net
cost. If the work is performed by a subcontractor, they may add 10% of their net cost for
overhead and profit and the Construction Manager may add 5% of the net cost for overhead
and profit. No percentage for overhead and profit shall be allowed on items of Social Security,
old age and unemployment insurance. The amount of credit to be allowed by the Construction
Manager to the Owner for a deletion or change which results in a net decrease in the GMP will
be the amount of actual net cost as confirmed by the Architect. When both additions and
deletions covering the related Work or substitutions are involved in anyone (1) change, the
allowance for overhead and profit shall be figured on the basis of net increase, if any, with
respect to that change.
7.3.8 If the Owner and Construction Manager do not agree with the adjustment in Contract
Time or the method for determining it, the adjustment or the method shall be referred to the
Architect for final determination.
7.3.9 When the Owner and the Construction Manager agree with the determination made by
the Architect concerning the adjustments in the GMP and Contract Time, or otherwise reach
agreement upon the adjustments, such agreements shall be effective immediately and shall be
recorded by preparation and execution of an appropriate Change Order.
7.4 Claims For Additional Cost Or Time
7.4.1 All claims for additional cost or time shall be made by request for a change order
submitted as provided in this Article. If the Construction Manager is delayed at any time in the
progress of the work by any act or neglect of the Owner or the Architect or of any employee of
either or by any separate Construction Manager employed by the Owner or by any changes
ordered in the work by labor disputes, fire, or unusual delay in transportation, unavoidable
casualties or any causes beyond the Construction Manager's control or by delay authorized by
35
the Owner pending resolution of disputes, and such delay extends the completion date, the
Substantial Completion shall be extended by Change Order for such reasonable time as the
Owner may determine. Only delays which are determined to extend the critical path of the
schedule for constructing the project, will result in a time extension. Neither the Owner nor the
Construction Manager shall be considered to own the schedule float time.
7.5 Minor Changes In The Project
7.5.1 The Architect-Engineer will have authority to order minor changes in the Project not
involving an adjustment in the GMP or an extension of the Construction Completion Date and
not inconsistent with the intent of the Drawings and Specifications. Such changes shall be
effected by written order. Documentation of changes shall be determined by the Project
Assigned Representatives, included in the Project Manual and displayed monthly in the Project
Schedule. Changes shall be approved by the Project Manager and the Architect-Engineer.
7.6 Emergencies
7.6.1 In any emergency affecting the safety of persons or property, the Construction Manager
shall act at his discretion, to prevent threatened damage, injury or loss. Any increase in the
GMP or extension of time claimed by the Construction Manager on account of emergency work
shall be determined as provided in this Article 7
ARTICLE 8
TIME
8.1 DEFINITIONS
8.1.1 Unless otherwise provided, Contract Time is the period of time, including authorized
adjustments, allotted in the Contract Documents for Substantial Completion of Work.
8.1.1.1 The Contract Time will begin on the date of award of a Notice to Proceed by the Owner
which is the official action taken by the Owner, and the receipt of all permits necessary to begin
construction.
8.1.1.2Work on the Site will not commence until the Certificates of Insurance, are received and
approved by the Owner; however, the Construction Manager's delay in providing such
Certificates of Insurance and other such requirements shall not be reason for granting of an
extension of time. The Construction Manager shall carry the Work forward expeditiously with
adequate forces and achieve Substantial Completion within the Contract Time.
8.1.1.3 Final Completion of the Project is defined in Paragraph 9.10.
8.1.1.4 The Construction Manager agrees to achieve Substantial Completion within 180
calendar days from the issuance of the Notice To Proceed and the receipt of all permits
necessary to begin construction, and 30 calendar days from Substantial Completion to Final
Completion and Owner Occupancy. The Construction Manager acknowledges that failure to
complete the project within the construction time set forth in the approved schedule will result in
substantial damages to the Owner. Liquidated Damages shall be assessed as specified in
Article 8.4 at a rate per day until substantial completion is achieved. The Notice To Proceed
shall be issued within ten (10) days from Owner Approval of this Agreement
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8.1.2 The date of commencement of the Work is the later of (i) the date established in the
Notice of Proceed, or (ii) the date of receipt of all permits necessary to begin construction. The
date shall not be postponed by the failure to act of the Construction Manager or of persons or
entities for whom the Construction Manager is responsible.
8.1.3 The date of Substantial Completion is the date certified by the Architect in accordance with
Paragraph 9.8.
8.1.4 The term "day" as used in the Contract Documents shall mean "calendar day," unless
otherwise specifically designated.
8.1.5 The term "delay" as used in the contract documents shall include "delay", "acceleration",
and "inefficiency" claims unless otherwise specifically designated.
8.2 PROGRESS AND COMPLETION
8.2.1 Time limits stated in the Contract Documents are of the essence of the Contract. By
executing the Agreement, the Construction Manager confirms that the Contract Time is a
reasonable period for performing the Work.
8.2.2 The Construction Manager shall not knowingly, except by agreement or instruction of the
Owner in writing, prematurely commence operations on the site or elsewhere prior to the
effective date of insurance required by Article 9, in the Special Conditions Section of the
Contract Documents to be furnished by the Construction Manager. The date of commencement
of the Work shall not be changed by the effective date of such insurance. Unless the date of
commencement is established by a notice to proceed given by the Owner, the Construction
Manager shall notify the Owner in writing, not less than five (5) days or other agreed period
before commencing the Work, to permit the timely filing of mortgages, mechanic's liens and
other security interests.
8.2.3 The Construction Manager shall proceed expeditiously with adequate forces and shall
achieve Substantial Completion within the Contract Time.
8.2.4 All time limits stated in the Contract Documents are of the essence to the Contract.
8.2.5 The Construction Manager shall begin the Work on the date of commencement as defined
in Subparagraphs 8.1.1.1 and 8.1.1.2, shall carry the Work forward expeditiously with adequate
forces, and shall complete it within the Contract Time.
8.2.6 Construction Manager's request for Substantial Completion Inspection, to establish a
punch list, shall mean that all work is complete and properly installed. If, at this time, the
Architect indicates that the job is not ready or is incomplete, the inspection will be cancelled and
rescheduled. Re-inspection costs for Architect/Engineer visitations will be borne by the
Construction Manager.
8.3 DELAYS AND EXTENSIONS OF TIME
8;3.1 If the Construction Manager is delayed at any time in the progress of the Work by neglect
of the Owner or the Architect, or by any separate contractor employed by the Owner, or by
changes ordered in the Work or by labor disputes, fire, or by any other cause which the
37
Architect determines may justify the delay, then the Contract time shall be extended by Change
Order for such reasonable time as the Architect may determine
8.3.2 Any claim for extension of time shall be made in writing to the Owner not more than 7 days
after the commencement of the delay, otherwise it shall be waived. In each written request for
extension of time the following information shall be provided, as a minimum. Failure to submit
such information shall constitute a just cause for denial of the claim for extension of time:
(a) Nature of the delay;
(b) Dates of commencement/cessation of the delay;
(c) Activities on the current progress schedule affected by the delay;
(d) Identification of the source of delay;
(e) Anticipated impact and extent of the delay;
(f) Recommended action to minimize the delay; and
(g) Schedule analysis of the delay using the CPM.
Any additional claim made after the initial claim has been implemented by Change Order shall
not be considered. Pending final resolution of a claim, request for extension of time, or Change
Order, the Construction Manager shall proceed diligently with the performance of the Contract
and the Owner shall continue to make payments in accordance with the Contract Documents. In
the case of a continuing delay only one claim is necessary. The Construction Manager shall
provide an estimate of the probable effect of such delays on the progress of the Work.
8.3.3 If no agreement is made stating the dates upon which interpretations are to be made then
no claim for delay shall be allowed on account of failure to furnish such interpretation until 15
days after written request is made for them, and not then unless such claim is reasonable.
8.3.4 The Construction Manager shall not be entitled to any extensions of time for delays
resulting from any such causes unless it shall have notified the Architect in writing within 7 days
after the commencement of such cause of the occurrence thereof and of the probable duration
thereof. The Construction Manager shall not be entitled to and hereby waives, any and all
damages which it may suffer by reason of delay, for any Act of God or unforeseen condition,
and waives all damages which it may suffer by reason of such delay including lost profits,
overhead, supervision, and home office expense. The extension of time granted herein being
the Construction Manager's sole remedy.
8.3.5 Extensions of time shall be the Construction Manager's sole remedy for any and all
delays. No payment or compensation of any kind shall be made to the Construction Manager for
damages because of hindrance in the orderly progress of the Work or delay from any cause in
the progress of the Work, whether such hindrances or delays be avoidable or unavoidable,
reasonable or unreasonable, anticipated or unanticipated. Construction Manager expressly
agrees not to make, and hereby waives any claim for damages on account of any delay,
obstruction, or hindrance for any cause whatsoever, including but not limited to the aforesaid
causes and agrees that the Construction Manager's sole right and remedy in the case of any
delay shall be an extension of the time fixed for completion of the Construction Contract.
Without limitation, the Owner's exercise of its rights under the changes, clauses, regardless of
the extent or number of such changes, shall not under any circumstances be construed as
compensable delays, it being acknowledged that the Construction Contract amount includes
38
and anticipates any and all delays whatsoever from any cause, whether such delays be
avoidable or unavoidable, reasonable or unreasonable, anticipated or unanticipated.
8.3.6 In the event it shall be determined by a Court of competent jurisdiction that the preceding
provision is inapplicable or unenforceable for any reason or cause, then the Construction
Manager shall be entitled to a maximum sum of $200 per day for each day it is actually delayed
by the action of or neglect of the Owner or Architect/Engineer or by changes in the Work, or by
any other cause of delay which is attributable to the Owner or Architect/Engineer and beyond
the Construction Manager's control, avoidance or mitigation and without the fault or negligence
of the Construction Manager and/or Subcontractor or supplier at any tier. This provision
contemplates anticipated and actual loss caused by any delay and the difficulty in proving the
loss.
8.4 FAILURE TO COMPLETE THE WORK ON TIME
8.4.1 It is mutually agreed by and between the parties hereto that time shall be an essential part
of this Contract, and that in case of the failure on the part of the Construction Manager to
achieve contractually scheduled completion of the milestones established in the Construction
Managers project schedule within the time specified and agreed upon, the Owner will be
damaged thereby; and the amount of said damages, inclusive of expenses for inspection(s),
Architect's additional fees, as well as additional personnel superintendence, and necessary
traveling expenses, being difficult if not impossible of definite ascertainment and proof, it is
hereby agreed that the amount of such damages shall be $150.00 for every calendar day's
delay in finishing the Work in excess of the number of calendar days prescribed; and the
Construction Manager hereby agrees that said sum shall be deducted from monies due
Construction Manager under the Contract or if, no money is due the Construction Manager, the
Construction Manager hereby agrees to pay to the Owner as liquidated damages and not by
way of penalty, such total sum as shall be due for such duly computed aforesaid.
ARTICLE 9
PAYMENT AND COMPLETION
9.1 GUARANTEED MAXIMUM PRICE (GMP)
9.1.1 The Guaranteed Maximum Price (GMP) is stated in Exhibit G and, including authorized
adjustments, is the total amount payable by the Owner to the Construction Manager for
performance of the Work under the Contract Documents.
9.1.2 Using the construction design documents to establish the scope of work for the Project or
any phase or portion thereof, as generally defined by a design document listing to be provided
by the Architect-Engineer and Construction Manager upon execution of this Agreement, which
is to be used to establish a Guaranteed Maximum Price, the Construction Manager will establish
the Guaranteed Maximum Price as described in Exhibit G, guaranteeing the maximum price to
the Owner, for the construction cost of the Project.
Such Guaranteed Maximum Price will be subject to modification for changes in the Project as
provided in Article 7. However, the actual price paid for the work by the Owner shall be the
actual cost of all work subcontracts, supply contracts, direct labor costs, direct supervision
costs, and direct costs of the project as defined herein, plus the Management Fees or the GMP,
whichever is less when the work is complete.
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9.1.3 The GMP will only include those taxes in the cost of the Project which are legally enacted
at the time the GMP is established.
9.1.4 At the time of submission of a Guaranteed Maximum Price, the Construction Manager will
verify the time schedule for activities and work which were adopted by the's Project Assigned
Representatives and used to determine the Construction Manager's cost of work. In addition to
the cost of work, a GMP will include an agreed upon sum as the construction contingency which
is included for the purpose of defraying the expenses due to unforeseen circumstances relating
to construction. The Construction Manager will be required to furnish documentation evidencing
the need to utilize this contingency prior to the authorization of funds by the Owner
Documentation for use of the Contingency shall be determined by the Project Assigned
Representatives, included in the Project Manual. The Architect-Engineer shall verify the actual
costs. If bids are received below the applicable line items in the GMP, the surplus will be added
to the contingency
If bids are not received for a portion of the work at or below the applicable line item amount in
the GMP, the Construction Manager reserves the right to perform that portion of the work or
negotiate for its performance for the specified line item lump sum amount or less.
9.2 SCHEDULE OF VALUES
9.2.1 Before the first "Application and Certificate for Payment," the Construction Manager shall
submit to the Owner a "Schedule of Values" allocated to various portions of the Work, prepared
in such form and supported by such data to substantiate its accuracy as the Owner may require.
The "Schedule of Values" shall be done in a format to follow the Project Manual Specifications
Section, AlA Form G703. This schedule, unless objected to by the Owner, shall be used as a
basis for reviewing the Construction Manager's "Applications for Payment." In addition to the
foregoing, the Construction Manager shall be required to provide the Owner a complete list of all
subcontractors, material men and suppliers to be utilized on the Project. The Construction
Manager shall also be required to update said list with each pay request. Failure to comply with
these terms shall be grounds of non-payment to the Construction Manager.
9.3 APPLICATION FOR PAYMENT
9.3.1 At least 5 days before the date the Construction Manager desires to process a payment,
the Construction Manager shall meet with the Owner's Representative and Architect/Engineer to
preview the pay application at the work site. At such time the Construction Manager, the Owner,
and the Architect/Engineer agree on the pay application, the Construction Manager shall submit
to the Architect four (4) notarized copies of the "Application and Certificate for Payment," on AlA
Form G702 supported by such data substantiating the Construction Manager's right to payment
as the Owner may require, and reflecting retainage as provided elsewhere in the Contract
Documents. Failure to comply with the Paragraph may be grounds for the Owner to deny
payment to the Construction Manager.
9.3.1.1 Such applications may include requests for payment on account of changes in the Work,
which have been properly authorized by Construction Change Directives, but not yet included in
Construction Change Orders.
9.3.1.2 Such applications may not include requests for payment for amounts the Construction
Manager does not intend to pay to a subcontractor or material supplier because of a dispute or
other reason.
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9.3.1.3 Until the Work reaches Substantial Completion, the Owner shall pay the amount due the
Construction Manager on account of progress payments less retainage as described in Article
11, of the General Conditions. At the time Work reaches said Substantial Completion, the
Architect may recommend to the Owner that the retainage be reduced. Retainage on phased
projects may be reduced as the phases attain Substantial Completion. After all Contract
Document requirements for Final Completion have been met, the Architect will recommend to
the Owner that the retainage to be released, less any set-offs which the Owner may have
against the Construction Manager, which shall include, but not be limited to, claims for
incomplete work and claims by third parties and liquidated damages, if any. In addition,
reduction of retainage shall be in accordance with the Owner and Directives, copies of which
are available to the Construction Manager.
9.3.2 Unless otherwise provided in the Contract Documents, payments may be made at the
discretion of the Owner on account, for materials and equipment delivered and suitably stored at
the site for subsequent incorporation in the Work. If approved in advance by the Owner,
payment may similarly be made for materials and equipment suitably stored off the site at a
bonded and insured location as agreed upon in writing. Payment for materials or equipment
stored on or off the site shall be conditioned upon compliance by the Construction Manager with
procedures satisfactory to the Owner to establish the Owner's title to such materials and
equipment or otherwise protect the Owner's interest, and shall include applicable insurance,
storage and transportation to the site for such materials and equipment stored off the site.
9.3.3 The Construction Manager warrants that title to all Work covered by an "Application for
Payment" will pass to the Owner no later than the time of payment. The Construction Manager
further warrants that upon submittal of an "Application for Payment" all Work for which
"Certificates for Payment" have been previously issued and payments received from the Owner
shall, to the best of the Construction Manager's knowledge, information and belief, be free and
clear of liens, claims, security interests or encumbrances in favor of the Construction Manager,
Subcontractors, material suppliers or other persons or entities making a claim by reason of
having other person or entities making a claim by reason of having provided labor, materials
and equipment relating to the Work.
9.3.3.1 Following receipt of the first payment and prior to the receipt of each subsequent
payment, the Construction Manager shall furnish the Owner with satisfactory evidence that all
labor and materials furnished through the date of the preceding requisition for payment have
been fully paid, less the retained percentage. At any time, the Owner may require proof of
payment to the Subcontractors and Suppliers in a form acceptable to the Owner be submitted
by the Construction Manager with the "Application for Payment." If any Subcontractor or
Supplier is not paid, the Construction Manager shall supply written explanation for such
nonpayment, with the "Application for Payment." Failure to comply with the above may result in
payment being withheld.
9.4 CERTIFICATES FOR PAYMENT
9.4.1 The Architect will, within ten (10) business days after receipt of the Construction
Manager's "Application for Payment," either issue to the Owner a "Certificate for Payment," with
a copy to the Construction Manager, for such amount as the Architect and Owner determines is
properly due, or notify the Construction Manager in writing of the reasons for withholding
certification in whole or in part as provided in Subparagraph 9.5.1.
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9.4.2 The issuance of a "Certificate for Payment" will constitute a representation by the Architect
to the Owner, based on the Architect's observations and/or inspections at the Site and the data
comprising the "Application for Payment," that the Work has progressed to the point indicated
and that, to the best of their knowledge, information and belief, the quality of the Work is in
accordance with Contract Documents. The foregoing representations are subject to an
evaluation of the Work for conformance with the Contract Documents upon Substantial
Completion, to the results of any subsequent tests and inspections, to minor deviations from the
Contract Documents correctable prior to completion and to specific qualifications expressed by
the Architect. The' issuance of a "Certificate for Payment" will further constitute a representation
that the Construction Manager is entitled to payment in the amount certified. However, the
issuance of a "Certificate for Payment" will not be a representation that the Architect has (1)
made exhaustive or continuous on-site inspections to check the quality or quantity of the Work
(2) reviewed construction means, methods, techniques, sequences or procedures.
9.5 DECISIONS TO WITHHOLD APPLICATION AND CERTIFICATE FOR PAYMENT
9.5.1 The Architect may decide not to certify payment and may withhold a "Certificate for
Payment" in whole or in part, to the extent reasonably necessary to protect the Owner, if in the
Architect's opinion the representations to the Owner required by Subparagraph 9.4.2 cannot be
made. If the Architect is unable to certify payment in the amount of the Application, the Architect
will notify the Construction Manager and Owner as provided in Subparagraph 9.4.1. If the
Construction Manager and the Architect cannot agree on a revised amount, the Architect will
promptly issue a "Certificate for Payment" for the amount for which the Architect is able to make
such representations to the Owner. The Architect may also decide not to certify payment or,
because of subsequently discovered evidence or subsequent observations, may nullify the
whole or a part of a "Certificate for Payment" previously issued, to such extent as may be
necessary in the Architect's opinion to protect the Owner from loss because of:
(a) Defective Work not remedied;
(b) Third party claims filed or reasonable evidence indicating probable filing of such claims;
(c) Failure of the Construction Manager to make payments properly to Subcontractors for
labor,
(a) materials or equipment within ten (10) days;
(d) Reasonable evidence that the Work cannot be completed for the unpaid balance of the
Contract Sum;
(e) Damage to the Owner or another contractor;
(f) Reasonable evidence that the Work will not be completed within the Contract Time, and
that the unpaid balance would not be adequate to cover actual or liquidated damages for
the anticipated delay;
(g) Persistent failure to carry out the Work in accordance with the Contract Documents,
(h) Rejection of the Work or any part of the Work by any governmental authority having
jurisdiction over the Project;
(i) Failure of the Construction Manager to comply with subparagraph 9.3.31 and Article 4.
U) Failure to properly fill out Owner forms required for payment.
(b) Failure to maintain and submit, as required, up-to-date and accurate record documents
and schedules.
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9.5.2 PROMPT PAYMENT TO SUBCONTRACTORS, MATERIALMEN AND SUPPLIERS
If a Construction Manager fails to pay a subcontractor, after ten (10) days from being paid by
the Owner on a previous draw, and no legitimate disputes exist as determined by the Architect,
then such event shall thus be considered a default under the Contract Documents, and the
Architect shall be requested not to certify any further payments to the Construction Manager.
This provision shall apply to subcontractors as well as material men and suppliers of the
Construction Manager. Notwithstanding the foregoing, this shall not confer any third party
beneficiary rights to the subcontractors, material men and suppliers. Further, this shall be
considered an act of default by the Construction Manager.
9.5.3 When the above reasons for withholding certification are removed, certification will be
made for amounts previously withheld.
9.5.4 In the event the Construction Manager disputes any determination of the Architect with
respect to any "Application and Certificate for Payment," the Construction Manager shall
continue to diligently prosecute the Work.
9.6 PROGRESS PAYMENTS
9.6.1 After the Architect has issued a "Certificate for Payment," the Owner shall make
payment in the manner and within the time provided in the Contract Documents, and shall so
notify the Architect.
9.6.2 The Construction Manager shall promptly pay each Subcontractor, upon receipt of
payment from the Owner, out of the amount paid to the Construction Manager on account of
such Subcontractor's portion of the Work, the amount to which said Subcontractor is entitled,
reflecting percentages actually retained from payments to the Construction Manager on account
of such Subcontractor's portion of the Work. The Construction Manager shall, by appropriate
agreement with each Subcontractor, require each Subcontractor to make payments to Sub-
subcontractors in similar manner.
9.6.3 The Architect will, on request, furnish to a Subcontractor, if practical, information regarding
the percentages of completion or amounts applied for by the Construction Manager and action
taken thereon by the Architect and Owner on account of portions of work done by such
Subcontractor.
9.6.4 Neither the Owner nor the Architect shall have an obligation to payor to see to the
payment of money to a Subcontractor except as may otherwise be required by law.
9.6.5 A "Certificate for Payment," a Progress Payment, or partial or entire use or occupancy of
the Project by the Owner shall not constitute acceptance of Work not in accordance with the
Contract Documents, nor abrogate liquidated damages claim.
9.7 FAILURE OF PAYMENT
9.7.1 If the Architect does not issue a "Certificate for Payment," through no fault of the
Construction Manager, within ten (10) Business Days after receipt of the Construction
Manager's "Application for Payment," or if the Owner does not pay a Construction Manager
within 15 Business Days after the date established in the Contract Documents any amount
certified by the Architect, then the Construction Manager may, after written notice to the Owner
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and Architect, stop work after 14 additional days until payment of the amount owing has been
received, unless otherwise provided by this Agreement
9.8 SUeST ANTIAL COMPLETION
9.8.1 Substantial Completion is the stage in the progress of the Work when the Work or
designated portion thereof is sufficiently complete in accordance with the Contract Documents
so the Owner can occupy or utilize the Work for its intended use. All warranties and guaranties
shall begin the next day.
9.8.2 When the Construction Manager considers that the Work is substantially complete as
defined in Subparagraph 9.8.1. the Construction Manager shall notify the Architect and Owner.
If the Architect and Owner, on the basis of an inspection, determine that the Work and the
requirements of the Contract Documents are substantially complete, the Architect will then
prepare a "Certificate of Substantial Completion (G704)" for the Owner, which shall establish the
Date of Substantial Completion. Time involved in obtaining Substantial Completion beyond the
date established therefore shall be subjected to the assessment of Liquidated Damages,
9.8.3 The Architect, Owner and the Construction Manager will inspect the Project. If it is
apparent that many items of the Work and the requirements of the Contract Documents are not
complete, no further inspection will be made. If the Project is ready for inspection, the Architect
shall prepare a written punch list incorporating items designated by all parties. The failure to
indicate any items on this list does not alter the responsibility of the Construction Manager to
complete all Work in accordance with the Contract Documents. All Punch List items shall be
fully and finally completed prior to the date established in the Contract Documents. The
Architect shall determine the date when the Work and the requirements of the Contract
Documents are fully and finally completed, and shall submit a letter to the Owner certifying the
date.
9.9 PARTIAL OCCUPANCY OR USE
9.9.1 The Owner may occupy or use any completed or partially completed portion of the Work
at any stage when such portion is designated by separate agreement with the Construction
Manager, provided such occupancy or use is consented to by the insurer and authorized by the
Architect. Such partial occupancy or use may commence whether or not the portion is
substantially complete, provided the Owner and Construction Manager have accepted in writing
the responsibilities assigned to each of them for payments, retainage if any, security,
maintenance, heat, utilities, damage to the Work and insurance, and have agreed in writing
concerning the period for correction of the Work and commencement of warranties required by
the Contract Documents.
When the Construction Manager considers a portion substantially complete, the Construction
Manager shall prepare and submit a list to the Architect as provided under Subparagraph 9.8.2
Consent of the Construction Manager to partial occupancy or use shall not be unreasonably
withheld. The stage of the progress of the Work shall be determined by written agreement
between the Owner and Construction Manager or, if no agreement is reached, by decision of
the Architect. If the Owner occupies any of the facility as provided herein, nothing shall relieve
the Construction Manager from liquidated damages as provided in this Agreement unless
provided in writing by the Owner.
It is expressly understood and agreed that the Construction Manager shall not be entitled to any
damages or compensation from the Owner or be reimbursed for any losses on account of any
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delay or delays resulting from the Owner's partial occupancy of the Work. Upon the
Construction Manager's request for a Change Order (for time only), the Architect shall
determine the number of days the Construction Manager has been delayed based on the
schedule submitted by the Construction Manager, and shall promptly issue a Change Order to
the Construction Manager for the appropriate number of days delay.
9.9.2 Immediately prior to such partial occupancy or use, the Owner, Construction Manager
and Architect shall jointly inspect the area to be occupied or portion of the Work to be used in
order to determine and record the condition of the Work.
9.9.3 Unless otherwise agreed upon, partial occupancy or use of a portion or portions of the
Work shall not constitute acceptance of Work not complying with the requirements of the
Contract Documents.
9.10 FINAL COMPLETION AND FINAL PAYMENT
9.10.1 When the Work and the requirements of the Contract Documents are fully and finally
completed, the Architect shall certify Final Completion to the Owner, and after acceptance the
Owner shall make final payment to the Contractor, subject to any set-offs as permitted in the
Agreement.
9.10.2 The Final Payment shall be due when the Construction Manager submits to the Architect
(1) a notarized affidavit that all Subcontractor payrolls, bills for materials and equipment, and
other indebtedness connected with the Work, have been paid or otherwise satisfied, (2)
warranties and guarantees, (3) operational manuals, (4) record drawings, and (5) sign off of
extra materials and all other items pertaining to close out (Send to: The Boynton Beach
Community Redevelopment Agency). The acceptance of Final Payment shall constitute a
waiver of all claims by the Construction Manager except those previously made in writing and
identified by the Construction Manager as unsettled at the time of Final "Application and
Certificate for Payment".
9.10.3 The making of final payment shall not constitute a waiver of any claims by the Owner
and shall not relieve the Construction Manager of the responsibility for negligence, defects of
manufacture, faulty materials, or workmanship to the extent within the period provided by law
and by the warranties provided herein; and upon written notice by the Owner, the Construction
Manager shall remedy any defects due thereto and pay all expenses for any damages to other
work resulting therefrom.
9.10.4 Written Guarantee: The Construction Manager shall and does hereby guarantee the
Work and shall remedy any defects due to faulty materials or workmanship which appear within
one (1) year, unless a longer period is specified in the Contract Documents, from the date
specified as the date for Substantial Completion. Neither the final payment nor any provisions in
the Contract Document shall relieve the Construction Manager of the responsibility for
negligence, defects of manufacture, faulty materials, or workmanship to the extent within the
period provided by law and upon written notice they shall remedy any defects due thereto and
pay all expenses for any damages to other work resulting therefrom, If any lien or claim remains
unsatisfied after all payments are made, the Construction Manager shall refund to the Owner all
monies that the latter may be compelled to pay in discharging such liens or claims, including all
costs and reasonable Attorney's fees, Any Subcontractor may seek relief from the Surety and
Construction Manager under Florida Statute 255,05.
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9.10.5 Data Furnished by the Contractor: During the Work and prior to receiving Final Payment.
the Construction Manager shall furnish to the Architect for transfer onto the record drawings one
(1) complete set of "record" drawings acceptable to the Architect and Owner, indicating all
construction changes and actual locations which are at variance with the original drawings.
9.10.6 At the completion of the Work and prior to receiving Final Payment, the Construction
Manager shall furnish to the Architect for delivery to the Owner all bonds, warranties,
guarantees, manuals and operating instructions and a complete list of equipment installed in the
Project showing manufacturer, location, model numbers and cost.
9.10.7 At the completion of the Work and prior to receiving final payment, the Construction
Manager shall furnish to the Architect a Schedule of Maintenance, stating frequency and type of
service for each piece of equipment.
9.10.8 At the completion of the Work and prior to receiving Final Payment, the Construction
Manager and Subcontractor shall instruct the Owner how to use all equipment and systems in
the Project and supply appropriate instruction manuals.
ARTICLE 10
PROTECTION OF PERSONS AND PROPERTY
10.1 SAFETY PRECAUTIONS AND PROGRAMS
10.1.1 The Construction Manager shall be responsible for initiating, maintaining and supervising
all safety precautions and programs in connection with the performance of the Contract.
10.1.2 In the event the Construction Manager encounters hazardous materials on the Site, the
Construction Manager shall immediately stop Work in the area affected and report the condition
to the Owner and the Architect in writing. The Work in the affected area shall not thereafter be
resumed except by written agreement of the Owner and Construction Manager if, in fact, the
material or removal has not been rendered harmless. The Work in the affected area shall be
resumed when it has been rendered harmless, by written agreement of the Owner and
Contractor, or in accordance with final determination by the Architect on which litigation has not
been demanded, or by litigation under Article 4.
10.1.3 The Construction Manager shall not be required pursuant to Article 7 to perform without
consent any Work relating to hazardous materials.
10.1.4 To the fullest extent permitted by law, the Owner shall indemnify and hold harmless the
Construction Manager, Architect, Architect's consultants and agents and employees of any of
them from and against claims, damages, losses and expenses, including but not limited to
reasonable attorney's fees, arising out of or resulting from performance of the Work in the
affected area if in fact the material has not been rendered harmless, provided that such claim,
damage, loss or expense is attributable to bodily injury, sickness, disease or death, or to injury,
sickness, disease or death, or to injury to or destruction of tangible property (other that the Work
itself) including loss of use resulting therefrom, but not only to the extent caused in whole or in
part by negligent acts or omissions of the Owner, anyone directly or indirectly employed by the
Owner or anyone for whose acts claim, damage, loss or expense is caused in part by a party
indemnified hereunder. Such obligation shall not be construed to negate, abridge, or reduce
other rights or obligations of indemnity which would otherwise exist as to a party or person
46
described in the Subparagraph 10.1.4. The indemnification herein is subject to Florida Statute
768.28.
10.2 SAFETY OF PERSONS AND PROPERTY
10.2.1 The Construction Manager shall take all reasonable precautions for the safety of, and
shall provide all reasonable protection to prevent damage, injury or loss to:
(a) Employees on the Work and all other persons who may be affected thereby;
(b) The Work and materials and equipment to be incorporated therein, whether in storage on or
off the Site, under care, custody or control of the Construction Manager or Contractor's
Subcontractors or Sub-subcontractors;
(c) Other property at the Site and adjacent thereto, including trees, shrubs, lawns, walks,
pavements, roadways, structures and utilities not designated for removal, relocation or
replacement in the course of construction;
10.2.2 All alcoholic beverages, smoking and drugs shall be prohibited from the Project site.
10.2.3 All workers on the Project site shall wear appropriate and uniform-like attire and shall
have visible identification as being employees of the Construction Manager or Subcontractor.
(for example, all employees wear same color shirts).
10.2.4 The Construction Manager shall give notices and comply with applicable laws,
ordinances, rules, regulations and lawful orders of public authorities bearing on the safety of
persons or property their protection from damage, injury or loss in accordance with CFR/29
Code of Federal Register, Part 1926.
10.2.5 The Construction Manager shall erect and maintain, as required by existing conditions
and performance of the Contract, reasonable safeguards for safety and protection, including
posting danger signs and other warnings against hazards, promulgating safety regulations and
notifying Owners and users of adjacent sites and utilities.
10.2.6 When use or storage of explosives or other hazardous materials or equipment or unusual
methods are necessary for the execution of the Work, the Construction Manager shall exercise
utmost care and carry on such activities under the supervision of properly qualified personnel.
10.2.7 The Construction Manager shall promptly remedy damage and loss (other than damage
or loss insured under property insurance required by the Contract Documents) to property
referred to in Clauses 10.2.1. (b) and (c) caused in whole or in part by the Construction
Manager, a Subcontractor, a Sub-subcontractor, or anyone directly or indirectly employed by
any of them, or by anyone for whose acts they may be liable and for which the Construction
Manager is responsible under Clauses 10.2.1 (b) and 10.2.1 (c), except damage or loss
attributable to acts or omissions of the Owner or Architect or anyone directly or indirectly
employed by either of them or by anyone by whose acts either of them may be liable and not
attributable to the fault or negligence of the Construction Manager. The foregoing obligations of
the Construction Manager are in addition to any other obligations of the Construction Manager
including Paragraph 3.16.
10.2.8 The Construction Manager shall designate a responsible member of the Contractor's
organization at the Site whose duty shall be prevention of accidents. This person shall be the
47
Contractors Superintendent unless otherwise designated by the Construction Manager In
writing to the Owner and Architect
10.2.9 The Construction Manager shall not load or permit any part of the construction or site to
be loaded so as to endanger the site safety,
10.2.10 The Construction Manager shall promptly report to the Architect and Owner in writing
and by telephone all accidents arising out of or in connection with the Work that cause death,
serious personal injury or major property damage. In addition, the Construction Manager shall
be required to notify the Owner of all recordable accidents as per Appendix (See Florida
Department of Labor and Employment Security, Division of Worker's Compensation on LES
Form DWC-1 (1/91) with monthly pay requests.
10.3 EMERGENCIES
10.3.1 In any emergency affecting the safety of persons or property, the Construction Manager
shall act at the Construction Manager's discretion, to prevent threatened damage, injury or loss.
Additional compensation or extension of time claimed by the Construction Manager on account
an emergency shall be determined as provided in Paragraph 4.3 and Article 7.
ARTICLE 11
UNCOVERING AND CORRECTION OF WORK
11.1 UNCOVERING OF WORK
11.1.1 If a portion of the Work is covered contrary to the Architect's or Owner's request or to
requirements specifically expressed in the Contract Documents, it must, if required in writing by
the Architect, be uncovered for the Architect's observation and/or inspection be replaced at the
Contractors expense without change in the Contract Time.
11.1.2 If a portion of the Work has been covered which the Architect or Owner has not
specifically requested to observe or inspect prior to it's being covered, the Architect or Owner
may request to see such Work and it shall be uncovered by the Contractor. If such Work is in
accordance with the Contract Documents, costs of uncovering and replacement shall be made
by appropriate Change Order.
11.2 CORRECTION OF WORK
11.2.1 The Construction Manager shall promptly correct Work rejected by the Architect or
Owner or failing to conform to the requirements of the Contract Documents, whether observed
before or after the Substantial Completion and whether or not fabricated, installed or completed.
The Construction Manager shall bear costs of correcting such rejected Work, including
additional testing and inspections and compensation for the Architect's services and expenses
made necessary thereby.
11.2.2 If, within one (1) year after the date of Substantial Completion of the Work or designated
portion thereof, or after the date for commencement of warranties and guarantees established
under Subparagraph 9.8.1, or by terms of an applicable special warranty required by the
Contract Documents, any of the Work is found to be not in accordance with the requirements of
the Contract Documents, the Construction Manager shall correct it promptly after receipt of
48
written notice from the Owner to do so unless the Owner has previously given the Construction
Manager a written acceptance of such condition. This period of one (1) year shall be extended
with respect to portions of Work first performed after Substantial Completion by the period of
time between Substantial Completion and the actual performance of the Work.
11.2.3 The Construction Manager shall remove from the site any portions of the Work which are
not in accordance with the requirements of the Contract Documents and are neither corrected
by the Construction Manager nor accepted by the Owner.
11.2.4 If the Construction Manager fails to correct nonconforming Work within a reasonable
time, the Owner may correct it in accordance with Paragraph 2.4. If the Construction Manager
does not proceed with correction of such nonconforming Work within a reasonable time fixed by
written notice from the Architect, the Owner may remove it and store the salvable materials or
equipment at the Contractor's expense. If the Construction Manager does not pay costs of such
removal and storage within 10 days after written notice, the Owner may upon 10 additional days
written notice sell such materials and equipment at auction or at private sale and shall account
for the proceeds thereof, after deducting costs and damages that should have been borne by
the Contractor, including compensation for the Architect's services and expenses made
necessary thereby. If such proceeds of sale do not cover costs which the Construction Manager
should have borne, the Contract Sum shall be reduced by the deficiency. If payments then or
thereafter due the Construction Manager are not sufficient to cover such amount, the
Construction Manager shall pay the difference to the Owner.
11.2.5 The Construction Manager shall bear the cost of correcting destroyed or damaged
construction, whether completed or partially completed, by the Owner or separate contractors
caused by the Contractor's correction or removal of Work which is not in accordance with the
requirements of the Contract Documents.
11.2.6 Nothing contained in this Paragraph 11.2 shall be construed to establish a period of
limitation with respect to other obligations, which the Construction Manager might have under
the Contract Documents. Establishment of the time period of one (1) year as described in
Subparagraph 11.2.2 related only to the specific obligation of the Construction Manager to
correct the Work, and has no relationship to the time within which the obligation to comply with
the Contract Documents may be sought to be enforced, nor to the time within which
proceedings may be commenced to establish the Construction Manager's liability with respect to
the Construction Manager's obligations other than specifically to correct the Work.
11.3 ACCEPTANCE OF NONCONFORMING WORK
11.3.1 If the Owner prefers to accept Work which is not in accordance with the requirements of
the Contract Documents, the Owner may do so instead of requiring its removal and correction,
in which case the GMP will be reduced as appropriate and equitable. Such adjustment shall be
effected whether or not final payment has been made.
ARTICLE 12
TERMINATION OR SUSPENSION OF THE CONTRACT
12.1 TERMINATION BY THE CONSTRUCTION MANAGER
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12.2 The Construction Manager may terminate the Contract as set forth in Article 15 of this
Agreement.
12.2 TERMINATION BY THE OWNER FOR CAUSE
12.2.1 The OWNER may terminate the Contract as set forth in Article 15 of this Agreement.
12.3 SUSPENSION BY THE OWNER FOR CONVENIENCE AND/OR TERMINATION FOR
CONVENIENCE
12.3.1 The Owner may terminate the Contract as set forth in Article 15 of this Agreement.
ARTICLE 13
EQUAL EMPLOYMENT OPPORTUNITY
13.1 CONTRACTOR'S EMPLOYMENT POLICY
13.1.1 The Construction Manager and all Subcontractors shall not discriminate against any
employee or applicant for employment because of race, religion, color, sex, national origin or
age. The Construction Manager shall take affirmative actions to insure that applicants are
employed, and that employees are treated during employment without regard to their race,
religion, color, sex, national origin or age. Such action shall include, but not be limited to the
following: employment, upgrading, demotion or transfer; recruitment or recruitment
advertisement; layoff or termination; rates of payor other forms of compensation; and selection
for training, including apprenticeship. The Construction Manager agrees to post in conspicuous
places, available to employees and applicants for employment, notices setting forth the policies
of non-discrimination.
13.1.2 The Construction Manager and all Subcontractors shall, in all solicitations or
advertisements for employees placed by them or on their behalf, state that all qualified
applicants will receive consideration for employment without regard to race, religion, color, sex,
national origin or age.
ARTICLE 14
CONSTRUCTION MANAGER'S SERVICES
The services which the Construction Manager shall provide include, but are not limited to, those
described or specified herein. The services described or specified shall not be deemed to
constitute a comprehensive specification having the effect of excluding services not specifically
mentioned.
14.1 Pre-Construction Activities
Services which have been provided by the Construction Manager, but are not limited to, those
described or specified herein.
(a) Provide or review project requirements, on-site and off-site development, survey
requirements, deed and municipal requirements I restrictions, preliminary budget and make
recommendations for revisions.
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(b) Prepare project schedule which clearly illustrates critical path elements, responsibilities of
the owner, Construction Manager, architect, contractor and outside agencies and update
monthly throughout the duration of the contract.
(c) Provide project delivery options for the design, bid and bid packaging of projects for efficient
scheduling, cost control and financial resource management.
(d) Utilize an information and reporting system acceptable to the Owner to provide the Project
Assigned Representatives with accurate and current cost control, work status, including by not
limited to work narrative, work completed I anticipated, schedules, estimated expenditures and
project accounting systems of the project at all times.
(e) Provide a project manual, which shall describe, as a minimum, the work plan, job
responsibilities and written procedures for reports, meetings, inspections, changes to the
project, etc.
14.1.1 Project Management Information System
(1) Commencing immediately after contract award, the Construction Manager shall implement
and shall utilize throughout the life of this Contract a Project Management Information System
hereinafter referred to as the project management software.
(2) The reports, documents, and data to be provided shall represent an accurate assessment of
the current status of the Project and of the work remaining to be accomplished and it shall
provide a sound basis for identifying variances and problems and for making management
decisions. It shall be prepared and available to the Owner and the Architect-Engineer weekly
and shall be updated with each pay request.
14.1.2 Scheduling Control Subsystem:
Master Project Schedule - Upon award of this Contract, the Project Assigned Representatives,
shall submit a master project schedule covering the entire project, from planning and design
approvals, to construction, Owner occupancy and final completion of the Project. This schedule
will serve as the framework for the subsequently development of all detailed schedules. The
master project schedule shall be produced and updated weekly throughout the project.
14.1.3 Cost Control System:
This system shall provide sufficient timely data and detail to permit the Project Assigned
Representatives to control and adjust the project requirements, needs, materials, equipment
and systems by building and site elements so that construction will be completed at a cost
which, together with all other project costs, will not exceed the guaranteed maximum price for
project budget.
14.1.4 Project Accounting System:
This system shall enable the Project Assigned Representative(s) to plan effectively and to
monitor and control the funds available for the project, cash flow, costs, change orders,
payments, and other major financial factors by comparison of budget, estimate, total
commitment, amounts invoiced, and amounts payable.
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14.1.5 Project Manual:
The Construction Manager shall develop a draft Comprehensive Project Manual describing the
services set forth in this Contract. This shall provide a plan for the control, direction,
coordination and evaluation of work performed throughout the project organization including
identification of Key personnel, responsibilities of Construction Manager, Owner and Architect-
Engineer; and work flow diagrams. The Project Manual shall be updated as necessary
throughout the construction and Owner occupancy phases. Copies of the Project Manual and
any updates shall be available to the Owner and Architect-Engineer. In developing the Project
Manual, the Construction Manager shall coordinate with the Owner and the Architect- Engineer.
14.2 Pre-Construction Services
14.2.1 Separate Contracts Planning
The Construction Manager shall review the design with the Architect/Engineer and make
recommendations to the Owner and to the Architect-Engineer with respect to dividing the work
in such manner as will permit the Construction Manager to take bids and award separate
construction sub-contracts on the current schedule. The Construction Manager shall take into
consideration such factors as natural and practical lines of severability, sequencing
effectiveness, access and availability constraints, total time for completion, construction market
conditions, availability of labor and materials, community relations and any other factors
pertinent to saving time and cost.
14.2.2 Interfacing
The Construction Manager shall take such measures as appropriate to provide that construction
requirements will be covered in the separate sub-contracts for procurement of long lead items,
the separate construction sub-contracts and the general conditions items performed without
duplication or overlap, sequenced to maintain completion of all work on schedule. Particular
attention shall be given to provide that each bid package clearly identifies the work included in
that particular separate sub-contract, its schedule for start and completion and its relationship to
other separate Construction Managers.
14.2.3 Solicitation of Bids and Proposals
(a) For all contracts exceeding $25,000, the Construction Manager shall establish a project
qualification procedure for applicable procurements and sub-contract trades prior to issuing an
invitation to bid or request for proposal (RFP). Only those bidders that are determined by the
Construction Manager to be qualified shall be deemed responsible and invited to provide an
invitation to bid or written proposal.
(b) For each separate construction contract exceeding $25,000, the Construction Manager shall,
unless waived by Owner, conduct a pre-proposal conference with prospective proposers, the
Architect-Engineer and Project Manager.
(c) As part of such preparation, the Construction Manager shall review the specifications' and
drawings prepared by the Architect-Engineer. Ambiguities, conflicts or lack of clarity of
language, use of illegally restrictive requirements, and any other defects in the specifications or
in the drawings noted by the Construction Manager shall be brought to the attention of the
Project Manager and Architect-Engineer in written form.
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(d) Without assuming responsibilities of the Architect-Engineer, the Construction Manager shall
prepare invitations for bids, or requests for proposal (RFP) for all procurements of long lead
items, materials and services, for Sub-Contractor contracts and for site utilities.
14.3 Construction Services
Services which the Construction Manager shall provide include, but are not limited to, those
described or specified herein.
a) Provide contract administration and approval of payments; monitor and record the
construction progress; review and as-builts, maintenance and warranty manuals from all
subcontractors; provide limited construction services and keep a log of all site visits and
observations.
b) Develop and implement procedures to monitor, record, review and approve all submittals,
shop drawings, change orders, pay request and field orders for budget and schedule impact and
compliance with the contract documents.
c) Provide inspection of all work, materials and tests prior to substantial completion and
occupancy inspections by appropriate certified inspectors.
d) Ensure that as-builts are being kept up to date by Construction Manager or subcontractor.
e) Make recommendations for correction of nonconforming or substandard work.
f) Coordinate ordering and delivery of owner supplied equipment.
g) Coordinate the testing, inspections and approvals of project, delivery of instructions for
operating all building systems, including training or maintenance staff for the owners.
h) Prepare final project accounting and provide written evaluation of the AlE and major
subcontractors.
i) Construction Manager may perform construction services if approved by the City and upon
justification of benefits to contract such as savings in cost, in time, improved quality or other
issues relevant to delivery of the project within terms of the contract. Construction Manager may
perform construction services as authorized by law in cases of emergency under procedures
approved by the City.
j) Assist Owner in completion of warranty work during the warranty period.
k) Assist Owner in the warranty inspections and completion of all required warranty work
generated by the inspections.
I) Close out and transfer of the project to the maintenance department including the delivery of
as-builts, warranties, and guaranties and operating instructions.
m) Ensure all inspections required for Certification of Occupancy are scheduled and passed by
the Boynton Beach Community Redevelopment Agency Building Department.
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14.3.1 Construction Manager's Staff
The Construction Manager shall maintain sufficient off-site support staff, and competent full time
staff at the Project site authorized to act on behalf of the Construction Manager to coordinate,
inspect and provide general direction of the work and progress of the Sub-Contractors and he
shall provide no less than those personnel during the respective phases of construction. He
shall not change any of those persons unless mutually agreed to by the Owner and
Construction Manager. In such case, the Owner shall have the right of approval of the
qualifications of replacement personnel. Such approval will not be unreasonably withheld.
14.3.2 Job-Site Facilities
The Construction Manager shall arrange for all job-site facilities necessary to enable the
Construction Manager, the Owner's Representative and the Architect-Engineer to perform their
respective duties in the management, inspection, and supervision of construction.
14.3.3 Field Offices and Sheds
The Construction Manager shall not be required to provide field offices for the Project.
14.3.4 Self Performed Labor and Materials
Construction Manager shall provide to the Owner for approval a written statement setting forth
the portion of the Work he shall provide. Once approved, no changes shall be made to this
written statement without prior written approval of the Owner.
14.3.5 Lines of Authority
The Construction Manager shall establish and maintain lines of authority for his personnel, and
shall provide this definition to the Owner and all other affected parties such as the building
inspectors of the Permitting Authority, the Sub-Contractors, the Architect-Engineer and the
Owner's Representatives, to provide general direction of the work and progress of the various
phases and Sub-Contractors. The Owner and Architect-Engineer may attend meetings between
the Construction Manager and his Sub-Contractors, however, such attendance shall not
diminish either the authority or responsibility of the Construction Manager to administer the Sub-
Contractor.
14.3.6 Schedule and Project Manual Provisions
The Construction Manager shall provide Subcontractors and the Owner, its representatives and
the Architect-Engineer with copies of the approved Project Manual (total number of copies not to
exceed 5) expanded for the Construction Phase employing their respective milestones,
beginning and finishing dates, their respective responsibilities for performance and the
relationships of their work with respect to Sub-Contractors and suppliers. He shall also continue
to provide current scheduling information and provide direction and coordination regarding
milestones, beginning and finishing dates, responsibilities for performance and the relationships
of the Construction Manager's work to the work of his Sub-Contractors and suppliers to enable
them to perform their respective tasks so that the development of construction progresses in a
smooth and efficient manner in conformance with the overall project schedule.
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The schedule shall include all phases of the construction work, material supplies, long lease
procurement, approval of shop drawings, change orders in progress, schedules for change
orders, and performance testing requirements. He shall advise the Owner, its representatives
and the Architect-Engineer of their required participation in any meeting or inspection giving
each at least one week notice unless such notice is made impossible by conditions beyond his
control. He shall hold job-site meetings at least bi-weekly with the Project Assigned
Representatives and at least once each week with the Sub-Contractors and the Architect-
Engineers Field Representative, or more frequently as required by work progress, to review
progress, discuss problems and their solutions and coordinate future work with all Sub-
Contractors.
14.3.7 Quality Control
The Construction Manager shall develop and maintain a program, acceptable to the Owner and
Architect-Engineer, to assure quality control of the construction. He shall supervise the work of
all Sub-Contractors providing instructions to each when their work does not conform to the
requirements of the plans and specifications and he shall continue to exert his influence and
control over each Sub-Contractor to ensure that corrections are made in a timely manner so as
to not affect the efficient progress of the work. Should disagreement occur between the
Construction Manager and Architect-Engineer over acceptability of work and conformance with
the requirements of the specifications and plans, the Owner shall be the final judge of
performance and acceptability.
14.3.8 Sub-Contractor Interfacing
The Construction Manager shall be the single point of interface with all Sub-Contractors for the
Owner and all of its agents and representatives including the Architect-Engineer. He shall
negotiate all change orders, field orders and request for proposals, with all affected Sub-
Contractors and shall review the costs of those proposals and advise the Owner and Architect-
Engineer of their validity and reasonableness, acting in the Owner's best interest prior to
requesting approval of each change order from the Owner. Before any work is begun on any
change order, a written authorization from the Owner must be issued. However, when health
and safety are threatened, the Construction Manager shall act immediately to remove the threat
to health and safety. He shall also carefully review all shop drawings and then forward the same
to the Architect-Engineer for review and actions. The Architect-Engineer will transmit them back
to the Construction Manager who will then issue the shop drawings to the affected Sub-
Contractor for fabrication or revision. The Construction Manager shall maintain a control system
to promote expeditious handling. He shall request the Architect Engineer to make interpretations
of the drawings or specifications requested of him by the Sub-Contractors and shall maintain a
suspense control system to promote timely response. He shall advise the Project Manager and
Architect-Engineer when timely response is not occurring on any of the above.
14.3.9 Contractor I Subcontractors Access to Site
Construction Manager shall not start work at site without keeping a updated list available to the
City Project Manager or his/her designee with information regarding the following:
a) The nature of the work
b) The time schedule of the work
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c) Other conditions that may be required to accomplish said work
All contractor / vendors must sign in and out at the site office whenever they are at the site.
14.3.10 Permits
The Construction Manager shall secure all necessary building permits from the Permitting
Authority. Any and all necessary permits, including utility connection permits, shall be obtained
by the Construction Manager and are not included in the Guaranteed Maximum Price. The cost
of any and all necessary permits shall be borne by the Owner
14.3.11 Owner Occupancy
(1) Owner Occupancy: The Construction Manager shall provide services during the
construction, which will provide a smooth and successful Owner occupancy of the project. He
shall provide consultation and project management to facilitate Owner occupancy and provide
transitional services to get the work, as completed by the Construction Managers, "on line" in
such conditions as will satisfy Owner operational requirements.
(a) He shall conduct the Construction Manager's preliminary punch list inspection and
coordinate the completion of all punch list work to be done with Owner occupancy requirements
in mind.
(b) He shall catalog operational and maintenance requirements of equipment to be operated by
maintenance personnel and convey these to the Owner in such a manner as to promote their
usability. He shall provide operational training, in equipment use, for building operators.
(c) He shall provide a comprehensive list of all machinery and equipment installed during the
project.
(d) He shall secure required guarantees and warranties, assemble and deliver same to the
Owner in a manner that will facilitate their maximum enforcement and assure their meaningful
implementation.
(e) He shall continuously review "As-Built" Drawings and mark up progress prints to provide as
much accuracy as possible.
(2) The Owner will not occupy or take control of the entire project until the above items
discussed in this paragraph have been completed and the "Substantial Completion", "Start-Up",
"Record Drawing", and "Warranty" requirements specified herein have been completed to the
Owner's satisfaction excluding the requirements for a warranty inspection Twelve (12) months
after Owner Occupancy.
14.3.12 Warranty
Where any work is performed by the Construction Manager's own forces or by Sub-Contractors
under contract with the Construction Manager, the Construction Manager shall warrant that all
materials and equipment included in such Work will be new except where indicated otherwise in
Contract Documents, and that such Work will be of good quality, free from improper
workmanship and defective materials and in conformance with the Drawings and specifications.
With respect to the same Work, the Construction Manager further agrees to correct all work
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found by the Owner to be defective in material and workmanship or not in conformance with the
Drawings and Specifications for a period of one year from the Date of Substantial Completion or
for such longer periods of time as may be set forth with respect to specific warranties contained
in the trade sections of the Specifications. The Construction Manager shall collect and deliver to
the Owner any specific written warranties given by others as required by the Contract
Documents. Also, the Construction Manager shall conduct, jointly with the Owner and the
Architect-Engineer, a warranty inspection twelve (12) months after the date of Owner
Occupancy.
ARTICLE 15
TERMINATION OF THE AGREEMENT AND OWNER'S RIGHT TO PERFORM
CONSTRUCTION MANAGER'S OBLIGATION
15.1 Termination by the Construction Manager
If the Project is stopped for a period of sixty (60) days under an order of any court or other
public authority having jurisdiction or as a result of an act of government, such as a declaration
of a national emergency making materials unavailable, through no act or fault of the
Construction Manager, or if the Project should be stopped for a period of sixty (60) days by the
Construction Manager, for the Owner's failure to make payments thereon, then the Construction
Manager may, upon seven days written notice to the Owner, terminate this agreement and
request payment for all work executed, the Management Fee earned to date, and for any
proven loss sustained upon any materials, equipment, tools, construction equipment, and
machinery, including reasonable profit, damages and terminal expenses incurred by the
Construction Manager.
15.2 Owner's Right to Perform Construction Manager's Obligations and Termination by
Owner for Cause
1. If the Construction Manager fails to perform any of his obligations under this Agreement
including any obligation he assumes to perform work with his own forces, the Owner may, after
seven (7) days written notice during which period the Construction Manager fails to perform
such obligation, terminate this agreement and make good such deficiencies. The GMP, or the
actual cost of the Project, whichever is less, shall be reduced by the cost to the Owner of
making good such deficiencies and the Construction Managers Management Fee shall be
reduced by an amount required to manage the making good of such deficiencies.
2. If the Construction Manager is adjudged a bankrupt, or if he makes a general assignment for
the benefit of his creditors, or if a receiver is appointed on account of his insolvency, or if he
persistently or repeatedly refuses or fails, except in case for which extension of time is provided,
to supply enough properly skilled workmen or proper materials and fails to maintain an
established schedule (failure to maintain schedule shall be defined as any activity on the critical
path that falls 45 days or more behind schedule) which has been approved by the Project
Assigned Representatives, or if he fails to make prompt payment to Sub-contractors for
materials or labor, or persistently disregards laws, rules, ordinances, regulations, or orders of
any public authority having jurisdiction, or otherwise is guilty of a substantial violation of a
provision of the agreement, then the Owner may, Without prejudice to any right or remedy and
after giving the Construction Manager and his surety, if any, seven (7) days written notice,
during which period Construction Manager fails to commence to cure the violation, terminate
this Agreement and may finish the Project by whatever method deemed expedient by the
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Owner. In such case, the Construction Manager shall be paid for work accomplished prior to the
date of termination and not be entitled to receive any further payment until the Project is finished
nor shall he be relieved from his obligations assumed herein. Reasonable terminal expenses
incurred by the Owner may be deducted from any payments left owing the Construction
Manager (excluding monies owed the Construction Manager for subcontract work)
15.3 Termination by Owner Without Cause
1. The Owner reserves the right, in it's best interest as determined by the Owner to cancel this
agreement by giving written notice to Construction Manager (30) thirty days prior to the effective
date of such cancellation. The Owner shall reimburse the Construction Manager for any unpaid
Cost of the Project due him. In case of such termination of Agreement the Owner shall further
assume and become liable for obligations, commitments and unsettled contractual claims that
the Construction Manager has previously undertaken or incurred in good faith in connection with
said Project. The Construction Manager shall, as a condition of receiving the payments referred
to in this Article, execute and deliver all such papers and take all such steps including the legal
assignment of his contractual rights, as the Owner may require for the purpose of fully vesting in
him the rights and benefits of the Construction Manager under such obligations or
commitments.
2. After the establishment of the Guaranteed Maximum Price, if the final cost estimates or lack
of legislative funding make the Project no longer feasible from the standpoint of the Owner, the
Owner may terminate this Agreement and pay the Construction Manager his proportionate fee
due.
ARTICLE 16
OWNER'S RESPONSIBILITIES
16.1 Owners Information
The Owner shall provide full information regarding his requirements for the Project.
16.2 Owner's Representative
The Owner shall designate a representative who shall be fully acquainted with the project and
shall define the lines of Owner authority to approve Project Construction Budgets, and changes
in Project. He shall render decisions promptly and furnish information expeditiously.
16.3 Architect and Engineers Agreement
The Owner shall retain an Architect-Engineer for design and to prepare construction documents
for the project. The Architect-Engineer's services, duties and responsibilities are described in
the Agreement between the Owner and the Architect-Engineer, a copy of which will be furnished
to the Construction Manager upon request.
16.4 Site Survey and Reports
The Owner shall provide, for the site of the project, all surveys describing the physical
characteristics, soil reports, subsurface investigations, legal limitations, known utility locations,
covenants, deed restrictions and a legal description.
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16.5 Approvals and Easements
The Owner shall secure and pay for necessary approvals, easements, assessments and
charges required for the construction, use or occupancy of permanent structures or for
permanent changes in existing facilities as reimbursables to the Construction Manager.
16.6 Legal Services
The Owner shall furnish such legal services as may be necessary for providing the items set
forth herein and such auditing services as may be required.
16.7 Drawings and Specifications
The Construction Manager will be furnished a reproducible set of all copies of Drawings and
Specifications reasonably necessary and ready for printing.
16.8 Cost of Surveys & Reports
The services, information, surveys and reports required by the above paragraphs shall be
furnished with reasonable promptness in accordance with the approved schedule at the Owners
expense, and the Construction Manager shall be entitled to rely upon the accuracy and
completeness thereof.
16.9 Project Fault Defects
If the Owner becomes aware of any fault or defect in the Project or non-conformance with the
drawings and specifications, he shall give prompt written notice thereof to the Construction
Manager and Architect-Engineer.
16.10 Funding
The Owner shall furnish in accordance with the established schedule, reasonable evidence
satisfactory to the Construction Manager that sufficient funds will be available and committed for
the cost of each part of the Project. The Construction Manager shall not commence any work,
unless authorized in writing by the Owner.
16.11 Lines of Communication
The Owner and Architect-Engineer shall communicate with the Sub-Contractors or suppliers
only through the Construction Manager while such method of communication is effective in
maintaining project schedules and quality.
16.12 Lines of Authority
The Owner shall establish and maintain lines of authority for his personnel and shall provide this
definition to the Construction Manager and all other affected parties.
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ARTICLE 17
PERMITTING AND INSPECTION
Construction will be inspected for code compliance, compliance with drawings and
specifications, and quality by inspectors working for the Permitting Authority. The building
permitting and code inspection requirements shall be as described hereinafter.
17.1 Building Permits
The Construction Manager shall provide the following information to the Permitting Authority and
obtain approval from the Permitting Authority prior to beginning construction:
(a) Two (2) sets of documents, signed, sealed and dated by the Architect-Engineer, with all
addenda enclosed with each set. These documents shall be sent to the Permitting Authority
prior to sending the Permit Application address hereinafter.
17.2 Code Inspections
All projects require detailed code compliance inspections during construction in disciplines
determined by the Permitting Authority. These disciplines normally include, but are not
necessarily limited to, structural, mechanical, electrical, plumbing and general building safety.
Inspection personnel will be provided by the Permitting Authority. Names, addresses and phone
numbers of the inspectors will be provided to the Construction Manager by the Permitting
Authority.
The Construction Manager shall request the appropriate inspector(s), no less than 24 hours in
advance, that the work is ready for inspection and before the work is covered up. Work not
inspected and approved prior to cover-up shall be uncovered for inspection when directed by
the Permitting Authority. All costs for uncovering and reconstruction shall be borne by the
Construction Manager.
All inspections shall be made for conformance with the applicable building codes, compliance
with drawings and specifications, and quality.
Cost for all re-inspections of work found defective and subsequently repaired shall be borne by
the Construction Manager.
ARTICLE 18
CONSTRUCTION MANAGER'S FEES
18.1 I n consideration of the performance of the contract, the Owner agrees to pay the
Construction Manager as compensation for his services, fees as set forth in Sub-paragraphs
18.1.1,18.1.2 and 18.1.3.
18.1.1 Management Fee: The Management Fee of no more than 15.0% of the Hard Budget
Cost and the General Conditions & Construction Management, shall commence upon receipt of
a Notice to Proceed from the Owner. The Management Fee shall be paid proportionally to the
ratio of the cost of the work in place, excluding stored materials and less retainage, as it bears
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on the latest estimate of the total construction cost or to the GMP, whichever is less. The first
monthly payment shall follow the issuance of the Notice to Proceed and the final monthly
payment shall be paid only when construction of the project is finally completed and occupancy
of the project accepted by the Owner. If construction is authorized only for a part of the project,
the fee paid shall be proportionate to the amount of work authorized by the Owner.
18.1.2 Construction Managers Exclusive Remedy: In the event the construction Substantial
or Final Completion date is extended, regardless of whether delay is caused by any act or
neglect of the Owner or the Architect-Engineer, or is attributable to the Owner or the Architect-
Engineer, the Construction Manager's sole and exclusive remedy is an extension of the
construction completion date.
18.1.3 General Conditions and Construction Management Costs: For services provided
during and related to the construction phase and general expenses of any kind as may be
expressly included herein, the General Conditions and Construction Management costs shall be
based upon the total of the Total of Div. 1-16, Management Fee and General Conditions as
specified in Exhibit G and shall be paid proportionally to the ratio of the cost of the work in
place, excluding stored materials and less retainage, as it bears on the latest estimate of the
total construction cost or to the GMP, whichever is less. The Construction Manager's
compensation for work or services performed by personnel assigned during the Construction
Phase shall be described in Exhibit I. The Owner retains the right to review the need and
effectiveness of any employee or employees assigned by the Construction Manager, should the
Project Manager question the need for the employee or employees. The balance of the fee shall
be paid when construction of the project is finally completed and occupancy of the project
accepted by the Owner. If construction is authorized only for a part of the project, the fee paid
shall be proportionate to the amount of work authorized by the Owner. The Construction
Manager's exclusive remedy for any adjustments in the Overhead and Profit for Construction
Phase is provided in subparagraph 18.1.2.
1. Costs and expenses included in the General Conditions and Construction Management for
the Construction Phase:
(a) General operating expenses related to this project of the Construction Manager's principal
and branch offices.
(b) The costs of all data processing staff.
(c) General operating expenses incurred in the management and supervision of the project
except as expressly included in Article 19.
ARTICLE 19
GENERAL CONDITIONS
The Owner agrees to pay the Construction Manager for General Conditions necessarily incurred
in the Project during the Construction Phase for construction services and paid by the
Construction Manager, which are not included in the Management Fee. Such costs shall include
the items set forth in subparagraphs 19.1.3 through 19.1.22 and the total payment for these
items shall be the itemized accounting included on Exhibit G as the General Conditions (Direct
Cost Items Related to Field Staff). Such payment shall be in addition to the Management Fee
stipulated in subparagraph 18.1.1 and shall be paid based on actual cost as it bears on the
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latest estimate of the total construction cost or to the GMP or to the Owner's Construction
Budget, whichever is less,
19.1 Direct Cost Items
1. Payments due to Sub-Contractors from the Construction Manager or made by the
Construction Manager to Sub-Contractors for their work performed pursuant to contract under
this Agreement
2. Cost of all materials, supplies and equipment incorporated in the Project, including costs of
transportation and storage thereof.
3. Cost of the premiums for all insurance which the Construction Manager is required to procure
by this Agreement specifically for the construction project The cost of insurance deductible for
builders risk and installation floater and/or any project specific insurance required to be provided
by the Construction Manager. The Construction Manager shall use due diligence to avoid any
claims,
4. Cost of any Sub-Contractor bonds the Construction Manager deems appropriate as approved
by Owner.
5. Wages paid for labor (as opposed to wages paid to management or supervisory personnel) in
the direct employ of the Construction Manager in the performance of his work under Agreement,
plus a multiple approved by the Owner to cover labor burden,
6. Cost including transportation and maintenance of all materials, supplies, equipment,
temporary facilities including office facilities for Construction Manager and Owner'
Representative and tools not owned by the workmen, which are employed or consumed in the
performance of the work, cost on such items used but not consumed which may be turned over
to the Owner at the end of the project and cost less salvage value on such items used but which
do not remain the property of the Construction Manager.
7. Rental charges on all necessary machinery and equipment, exclusive of hand tools used at
the site of the Project, whether rented from the Construction Manager or other, including
installation, repairs and replacements, dismantling, removal, costs of lubrication, transportation
and delivery costs thereof, which are used in the support of a Sub- Contractor or the
Construction Manager's own forces in the performance of the work, at rental charges consistent
with those prevailing in the area,
8. Sales, use, gross receipts or similar taxes related to allowable direct costs of the Project
imposed by any governmental authority, and for which the Construction Manager is liable.
9. The cost of corrective work subject, however, to the GMP and except for any corrective work
made necessary because of defective workmanship or other causes contributed to by the
Construction Manager or his Sub-Contractors or suppliers. No costs shall be paid by the Owner
to the Construction Manager for any expenses made necessary to correct defective
workmanship or to correct any work not in conformance with the Plans and Specifications or to
correct any deficiency or damage caused by negligent acts by the Construction Manager or his
subcontractors,
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10. Minor expenses at the site, such as telephone/cell phone service, long distance telephone
calls, telephone service, expressage, postage, and similar petty cash items in connection with
the Project to be billed at cost.
11. Job office supplies - includes postage, courier service, paper, pencils, paper clips, file
folders, staples, coffee, water, etc., and janitorial supplies (photo copy or blue print paper not
included).
12. Costs for trash and debris control and removal from the site.
13. Cost incurred due to an emergency affecting the safety of persons and property.
14. Legal costs reasonably and properly resulting from prosecution of the Project for the Owner,
including handling claims for changes by Sub-Contractors and Vendors, subject to the following
limitations:
(a) The Owner approved incurring such costs in advance, which approval shall not be
unreasonably denied; and
(b) The legal costs were not incurred as result of the Construction Manager's own
negligence or default or sub contractor negligence or default. This paragraph does not
provide for payment of legal costs incurred in preparing or asserting claim or requests,
by Construction Manager itself, for change orders or in enforcing the obligations of this
contract.
15. All costs directly incurred in the performance of the Project for the benefit of the Project and
not included in the Management Fees as set forth in Article 18.
16. If requested by the Owner, the Construction Manager will perform all or a portion of the
General Conditions Work for the cost of the work.
17. If approved by the Owner, the Construction Manager, when qualified, may perform all or a
portion of the work for any item listed on the estimate or GMP breakdown where it is deemed
advantageous due to schedule or economic benefit for the direct cost of the work.
18. Transportation outside of Palm Beach County for those personnel employed directly for the
project, not including relocation expenses. Such transportation must be approved in advance by
the Owner, and may be in accordance with the Construction Manager's standard personnel
policy but not exceeding the limits established by Florida Statutes 112.061.
19. Costs of all reproductions required by the project to directly benefit the project.
20. Costs for efficient logistical control of the site, including horizontal and vertical transportation
of materials and personnel. Also, costs for adequate storage and parking space.
21. The Construction Manager may, but shall not be required to, provide and maintain for the
Owner a suitable temporary field office.
22. Costs for any job site items not referenced herein, not normally provided by the
subcontractors, which will be provided by the Construction Manager as required to complete the
work.
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ARTICLE 20
PAYMENTS TO THE CONSTRUCTION MANAGER
20.1 Schedule of Values
The preliminary schedule of values shall be submitted on AlA Document, G703, Certificate for
Payment Continuation Sheet shall be submitted and approved prior to the initial request for
payment. Each line item of the Work shall separately show the value of labor and materials in a
ratio consistent with generally recognized estimating guides and supported by such data
necessary to substantiate its accuracy, including the itemization of required insurance.
Construction Manager shall provide applicable Division number for each line item included on
this schedule.
20.2 Monthly Statements
The Construction Manager shall submit to the Owner a statement, sworn to if required, along
with the cost reports required herein, showing in detail all monies paid out, cost accumulated or
costs incurred on account of the Cost of the Project during the previous period and the amount
of the Construction Manager's fees. This data shall be attached to the Application and
Certificate for Payment (AlA Document G702). Payments by the Owner to the Construction
Manager shall be made as described in Article 18. Ten percent (10%) retainage shall be held on
fees set forth in Article 18.1.3 and the Direct Cost Items described in Paragraph 19.1 (items 1
and 2). Retainage shall not be withheld on services or fees set forth in subparagraphs 18.1.1
and 18.1.2. or Direct Cost Items described in Paragraph 19.1. When approved by the Owner
certain suppliers and Sub-Contractors may be paid the entire amount due when such payment
is generally the practice of the industry. At 50% Completion, the Owner shall approve a
reduction of the retainage from 10% to 5%.
20.3 Final Payment
Final payment constituting the unpaid balance of the Cost of the Project and the Management
Fee, shall be due and payable as described in subparagraph 18.1.3 after the Owner has
accepted complete occupancy of the total Project, provided that the Project be then finally
completed, that the Construction Manager has verified by his signature that he has completed
all items specified on the attached Exhibit H, and that this Agreement has been finally
performed. However, if there should remain work to be completed, the Construction Manager
and the Architect-Engineer shall list those items prior to requesting final payment and the Owner
may retain a sum equal to 200% of the estimated cost of completing any unfinished work and
portion of the Construction Manager's retainage, provided that said unfinished items are listed
separately and the estimated cost of completing any unfinished items are likewise listed
separately. Thereafter, Owner shall pay to Construction Manager, monthly, the amount retained
for each incomplete item after each of said items is completed.
20.4 Payments to Sub-Contractors
The Construction Manager shall within 10 days after receipt of payment from the Owner, pay all
the amount due Sub-Contractors less the retainage of ten percent (10%) described herein until
the Project is substantially complete, and based on Construction Managers evaluation of the
Sub-Contractors acceptable performance, the Owner may approve a reduction in retainage from
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10% to 5% thereafter. If there should remain items to be completed, the Construction Manager
and Architect-Engineer shall list those items required for completion and the Construction
Manager shall require the retainage of a sum equal to 200% of the estimated cost of completing
any unfinished items, provided that said unfinished items are listed separately and the estimated
cost of completing any unfinished items likewise listed separately. Thereafter, the Construction
Manager shall pay to the Sub-Contractors, monthly, the amount retained for each incomplete
item after each of said items is completed. Before issuance of final payment without any
retainage, the Sub-Contractor shall submit satisfactory evidence that all payrolls, material bills
and other indebtedness connected with the Project have been paid or otherwise satisfied,
warranty information is complete, as-built markups have been submitted and instruction for the
Owners operating and maintenance personnel is complete. Final payment may be made to
certain select Sub-Contractors whose work is satisfactorily completed prior to the total
completion of the Project but only upon approval of the Owner.
20.5 Delayed Payments by Owner
If the Owner should fail to pay the Construction Manager within 30 days after the receipt of an
approvable payment request from the Construction Manager, then the Construction Manager
may, upon thirty (30) additional days written notice to the Owner and the Architect-Engineer,
stop the Project until payment of the Amount owing has been received.
20.6 Payments for Materials and Equipment
Payments will be made for material and equipment not incorporated in the work but delivered
and suitably stored at the site or another location subject to prior approval and acceptance by
the Owner on each occasion.
20.7 Withholding Payments To Sub-Contractors
The Construction Manager shall not withhold payments to Sub-Contractors if such payments
have been made to the Construction Manager. Should this occur for any reason, the
Construction Manager shall immediately return such monies to the Owners, adjusting pay
requests and project bookkeeping as required.
END OF SECTION
65
EXHIBIT E
SPECIAL CONDITIONS
OF THE CONTRACT FOR CONSTRUCTION MANAGEMENT SERVICES
INDEX
ARTICLE 1 - COSTS INCURRED BY PROPOSERS
ARTICLE 2 - DUE DILIGENCE
ARTICLE 3 - INSURANCE REQUIREMENTS
ARTICLE 4 - PERFORMANCE AND PAYMENT BOND
ARTICLE 5 - ENVIRONMENTAL CONCERNS
ARTICLE 6 - SAFETY CONCERNS
ARTICLE 7 - OWNER'S REPRESENTATIVE
ARTICLE 8 - MISCELLANEOUS
66
SPECIAL CONDITIONS
OF THE CONTRACT FOR CONSTRUCTION MANAGEMENT SERVICES
ARTICLE 1
COSTS INCURRED BY PROPOSERS
1.1 All costs incurred by Proposers, their employees and agents in preparing a response to this
Request for Proposals, in clarifying such response to the satisfaction of the Owner, in attending
any pre-proposal conference or interview, in ascertaining the conditions of the site, in entering
into a contract with the Owner or for any other reason shall be the sole responsibility of the
Proposers and will not be paid or reimbursed by the Owner.
ARTICLE 2
DUE DILIGENCE
2.1 The Proposer, in submitting their Proposal, realizes that Time Is Of The Essence and that
any delay of this project will have a serious negative impact on the Boynton Beach Community
Redevelopment Agency. Therefore, the Proposer has taken Due Diligence to determine factors
that may impact the days necessary to complete this Project.
Specifically, the approval process required under Florida Statute as governed by Florida
Building Code, as well as the Permitting process required by the Boynton Beach Community
Redevelopment Agency and any other bodies that have jurisdiction over the land parcel for this
Project.
ARTICLE 3
INSURANCE REQUIREMENTS
3.1 The Construction Manager shall purchase and maintain such insurance that will protect him
from claims set forth which may arise out of or result from the Construction Manager's
operations under the Contract and provide the Owner with Certificates of Insurance containing a
30 day advance notice of cancellation provision prior to commencement of work and names the
Owner as an additional insured or on an endorsement thereto on all policies issued in
connection with Work contracted to the Construction Manager. The Construction Manager shall
be responsible for all policy deductibles and self-insured retentions.
WORKER'S COMPENSATION
The Construction Manager shall procure and maintain, for the life of this Contract/Agreement,
Worker's Compensation Insurance covering all employees with limits meeting all applicable
state and federal laws. This coverage shall include Employers' Liability with limits meeting all
applicable state and federal laws. This coverage shall extend to any subcontractor that does not
have their own Workers' Compensation and Employer's Liability Insurance. Thirty (30) days
notice of cancellation, non renewal, lapse or material modification is required and must be
provided to the Boynton Beach Community Redevelopment Agency via Certified Mail.
67
COMMMERCIAL GENERAL LIABILITY
The Construction Manager shall procure and maintain, for the life of this Contract/Agreement,
Commercial General Liability Insurance. This coverage shall be on an "Occurrence" basis.
Coverage shall include Premises and Operations; Independent Contractors' Products and
Completed Operations and Contractual Liability. This policy shall provide coverage for death,
personal injury or property damage that could arise directly or indirectly from the performance of
this Agreement.
The Minimum Limits of Coverage shall be $2,000,000 per occurrence, Combined Single Limit
for Bodily Injury Liability and Property Damage Liability with no more than a $10,000 deductible.
The Boynton Beach Community Redevelopment Agency must be named as an additional
insured on such policy. The additional insured requirement is waived if Owners and
Construction Managers' Protective Coverage is also provided, or required. Thirty (30) days
written notice must be provided to the Boynton Beach Community Redevelopment Agency via
Certified Mail in the event of non renewal, cancellation or material change or modification or
lapse in any coverage required herein
BUSINESS AUTOMOBILE LIABILITY
The Construction Manager shall procure and maintain, for the life of the Contract/Agreement,
Business Automobile Liability Insurance.
The minimum limits of coverage shall be $500,000 per occurrence, Combined Single Limit for
Bodily injury Liability and Property Damage Liability. This coverage shall be an "Any Auto" or
"Comprehensive Form" type policy.
In the event that the Construction Manager does not own any vehicles, we will accept hired and
non-owned coverage in the amounts listed above. In addition, we will require an affidavit signed
by the Construction Manager indicating the following:
does not own any vehicles.
"Company Name"
In the event we acquire any vehicles throughout the term of his Contract/Agreement,
"Company Name"
agrees to purchase "Any Auto" or
Comprehensive Form coverage as of the date of
acquisition.
Construction Manager's Signature:
Thirty (30) days written notice must be provided to the Boynton Beach Community
Redevelopment Agency via Certified Mail in the event of cancellation or non renewal, material
change or modification or lapse of coverage.
68
SUBCONTRACTOR'S INSURANCE
The Construction Manager shall require each of his subcontractors to take out and maintain
during the life of his subcontract the same insurance coverage's required of the Construction
Manager. Each subcontractor shall furnish to the Construction Manager two copies of the
Certificate of Insurance, and Construction Manager shall furnish one copy of the Certificate to
the Boynton Beach Community Redevelopment Agency.
INSTALLATION FLOATER
An Installation Floater in the amount equal to 100 percent of the value of the items to be
installed is required when Builders Risk Insurance is not appropriate and there are materials to
be installed. Examples include: air conditioning equipment, boilers, aluminum railings, plumbing
fixtures, lighting equipment, processing machinery from manufacturing plants, and similar items.
The Installation Floater usually is the only satisfactory method of providing coverage for the
installation of expensive equipment in an existing building or at a work site. Coverage must be
written on an All Risk basis, and the Boynton Beach Community Redevelopment Agency must
be listed as an additional insured. All deductibles are the responsibility of the Construction
Manager and must not exceed $1,000. Thirty (30) days written notice must be provided to the
Boynton Beach Community Redevelopment Agency via Certified Mail in the event of
cancellation or material change or modification or lapse in any coverage required herein.
OWNERS AND CONTRACTORS PROTECTIVE LIABILITY POLICY
All Construction Managers doing work with a bid price of more than $500,000 must include an
Owners and Contractors Protective Liability Policy. The Boynton Beach Community
Redevelopment Agency will be listed as the named insured on the Policy. The liability limit must
be combined single limits of not less than $1,000,000. This must be on an Occurrence Form.
Thirty (30) days written notice must be provided to the Boynton Beach Community
Redevelopment Agency via Certified mail in the event of cancellation.
SUPPLEMENTAL PROVISIONS
1. The insurance coverage and conditions afforded by this policy(s) shall not be suspended,
voided, canceled or modified, except after thirty (30) days prior written notice by Certified Mail,
Return Receipt Requested, has been given to the Boynton Beach Community Redevelopment
Agency's department that originated this contract.
2. Certificates of Insurance meeting the specific required provision specified within this
ContracUAgreement shall be forwarded to the Boynton Beach Community Redevelopment
Agency Department that originated the contract, and approved prior to the start of any work or
the possession of any city property.
3.1.2 Any loss insured under paragraph 3.1 is to be adjusted with the Construction Manager and
Owner and made payable to the Owner as trustee for the insurees, as their interest may appear,
subject to the requirements of any applicable mortgagee clause. The Construction Manager
shall pay each Sub-Contractor a just share of any insurance money received by the
Construction Manager and by appropriate agreement, written where legally required for validity,
shall require each Sub-Contractor to make payment to his Sub-subcontractors in a similar
manner. The Construction Manager shall be responsible for all deductable amounts.
69
3.1.3 All required insurance coverage's shall be underwritten by insurance companies that are
licensed to do business in the State of Florida. State approved excess and surplus lines insurers
shall have a current rating of A- or better by A.M. Best Company with a financial size category of
Class VIII or larger.
3.1.4 It shall be the Construction Manager's responsibility to determine whether the required
minimum coverage's and limits of liability are adequate and to purchase whatever coverage's
and limits of liability are necessary to protect the Construction Manager's interests. The
Construction Manager shall not cancel or fail to renew any of the required insurance coverage's
until the Work required by the contract document has been completed. The Products and
Completed Operations Liability Insurance shall be continued for not less than two (2) years
following completion and acceptance of the Work. The Construction Manager will provide
complete copies of any insurance policy for the required coverage's within seven (7) days of the
date requested by the Owner.
3.2 Additional Coverage's Request
3.2.1 The following additional coverage's are required if applicable:
Coveraae
When Coveraae is Reauired
Independent Contractor
The use of Subcontractors by the Construction
Manager to perform any of the Construction work.
Explosion
The use or presence of dynamite or other
explosives or welding tanks or other containers of
potentially explosive substances.
Collapse
(2) Moving, shoring, underpinning, raising or
demolition of any structure or removal or rebuilding
structural supports.
Underground
The use of mechanical equipment to grade, pave,
excavate, drill, tunnel, burrow, fill, backfill, pile drive
or clear land.
3.3 WAIVER OF RIGHTS
3.3.1 The Owner and Construction Manager waive all rights against (1) each other and the
Subcontractors, subsubcontractors, owners and employees each of the other, and (2) the
Architect and separate Contractors, Subcontractors, owners and employees, for damages to the
extent covered by property insurance obtained pursuant to Article 1 or any other property
insurance applicable to the Work except such rights as they may have to the proceeds of such
insurance held by the Owner as trustee.
3.4 RECEIPTS AND APPLICATION OF PROCEEDS
3.4.1 The Owner as trustee shall, upon the occurrence of any insured loss, deposit in a
separate account any money so received and shall distribute it in accordance with such
70
agreement as the parties in interest may reach. If after such loss no other special agreement is
made, replacement of damaged work shall be covered by an appropriate Change Order.
ARTICLE 4
PERFORMANCE AND PAYMENT BOND
4.1 PERFORMANCE AND PAYMENT GUARANTY
4.1.1 The Construction Manager will be required to provide a Performance and Payment Bond
for this project pursuant to Florida State Statute 255.103(3).
ARTICLE 5
ENVIRONMENTAL CONCERNS
5.1 TOXIC SUBSTANCES
5.1.1 The Construction Manager and their Subcontractor(s) shall submit a written list of. all toxic
substances, pursuant to Chapter 38F-41, FAC, known to be used on this project at
commencement of award. Said list must be sent in triplicate to the Architect at least five (5) days
prior to the commencement of construction, and for additional substance, prior to usage on site.
Said notification shall contain the following:
· The name of the substance to be used,
· Where the substance is to be used;
· And when the substance will be used.
5.1.2 The Construction Manager must also attach to the notification a copy of a Material Safety
Data Sheet (M.SD.S.) as defined in Chapter 442.103, Florida Statutes, for each toxic substance
to be used.
5.2 HAZARDOUS WASTE
5.2.1 The Construction Manager is responsible for the proper storage, handling and disposal of
hazardous wastes generated at the project site during construction or maintenance activities.
5.2.2 The Construction Manager must notify the Architect and Owner of their intent to generate,
store and remove hazardous waste from a site. Any costs including, but not limited to, fines,
disposal and clean up incurred by the Owner to comply with the proper storage and disposal of
hazardous waste shall be withheld from final payment to the Construction Manager.
5.3 ASBESTOS
5.3.1 Any maintenance, construction, renovation, demolition, or other alteration of a facility and
other ancillary facilities must be cleared through the Palm Beach County Health Department
including any necessary Asbestos Abatement Surveys and or Permits to preclude disturbance
of asbestos-containing materials. Failure to obtain proper clearance will subject the Construction
Manager to all expenses incurred in decontaminating the facility and such fines or penalties
associated with the same.
71
5.3.2 Neither the Construction Manager nor their Subcontractors shall use or substitute building
materials which contain asbestos for any component of a facility. Construction Managers will be
held liable for the cost of removing any asbestos-containing building materials (AC.B.M.) and
reinstallation of non-asbestos building materials should subsequent sampling of materials reveal
the presence of more than one percent (1 %) asbestos.
5.3.3 The Construction Manager engaged in removal of bituminous resinous asbestos
containing roofing materials (BRACRM) shall be either:
. A "State of Florida Licensed Roofing Contractor" in accordance with Florida Statutes
455.301 455.309, and shall employ and have present on-site a supervisor who has
attended a Roofing Supervisor course and an Asbestos Worker course, during all
BRACRM removal and related activities. These courses must be approved by the
Asbestos Oversight Program Team or,
. A "State of Florida Licensed Asbestos Contractor" in accordance with Florida Statutes
455.301 - 455.309.
5.3.4 Submittals
Copies of "Certificate of Attendance" of all on-site supervisors for Supervisor course and
Asbestos Worker course in accordance with Florida Statute 469.01 et. seq. shall be submitted
to the Owner.
5.4 WELL-FIELD PROTECTION
5.4.1 Palm Beach County's Well-Field Protection Ordinance requires that all construction activity
follow their procedures in a well-field zone.
5.4.2 The Construction Manager shall be responsible for assuring that each Subcontractor
evaluates each site before construction is initiated to determine if any site conditions may pose
particular problems for the handling of any regulated substances. For instance, handling
regulated substances in the proximity of ground water, surface water or wetlands may be
improper.
5.4.3 If any regulated substances are stored on the construction site during the construction
process, they shall be stored in a location and manner, which will minimize any possible risk of
release to the environment. Any storage container of 55 gallons, or 440 pounds, or more
containing regulated substances shall have constructed below it an impervious containment
system constructed of materials of sufficient thickness, density and composition that will prevent
the discharge to the land, ground waters, or surface waters, of any pollutant which may
emanate from said storage container or containers. Each containment system shall be able to
contain 150% of the contents of all storage containers above the containment system.
5.4.4 Each Contractor shall familiarize himself with the manufacturer's Material Safety Data
Sheet supplied with each material containing a regulated substance and shall be familiar with
procedures required to contain and clean up any releases of the regulated substance. Any tools
or equipment necessary to accomplish same shall be available in case of a release.
5.4.5 Upon completion of construction, all unused and waste regulated substances and
containment systems shall be removed from the construction site by the responsible Contractor
72
and shall be disposed of in a proper manner as prescribed by law. Any C&D Roll-off vendor
used shall be franchised in the Boynton Beach Community Redevelopment Agency.
5.5 LEAD - PLUMBING/PAINT
5.5.1 All potable water plumbing fixtures, including faucets, valves, bubblers, water coolers, ice
machines and related lines and solder, must be supplied with a manufacturer's certification that
these materials do not contain lead. In the interest of protecting the staff, this is more restrictive
than the E.PA allowance of 8% lead in plumbing fixtures.
5.5.2 All paints used in the facilities must not contain greater than 0.06 percent lead by weight of
the dried paint film. A manufacturer's certification of this lead content must be provided.
5.5.3 Any lead paint removal must conform with all applicable guidelines as stated in: "Lead
Based Paint Interim Guidelines for Hazardous Identification and Abatement in Public and Indian
Housing", September 1990 and "Construction Standard for Lead Paint 29CFR1926.62".
5.6 USE OF TOXIC OR HAZARDOUS MATERIALS DURING OCCUPIED TIMES
5.6.1 The Construction Manager shall not use any toxic or hazardous material during occupied
times that will expose Boynton Beach Community Redevelopment Agency employees to any
danger. This includes, but is not limited to the use of hot asphalt, paints, pesticides, adhesives,
including plastic roofing cement, single-ply roofing adhesives, asphalt primer, sealants, solvents,
gasoline and aluminum roofing coatings or glues.
5.7 MERCURY CONTAINING DEVICES AND BALLAST MANAGEMENT
5.7.1 Remodeling and Renovations.
5.7.2 Prior to remodeling or demolition, the number of lighting fixtures with florescent tubes and
oil containing ballasts, thermostats, and switches requiring removal will be determined by the
Construction Manager.
5.7.3 The Construction Manager shall determine the appropriate number of drums for ballast
storage or proper fluorescent tube containers from the recycler prior to removal from the fixtures
by the Construction Manager.
5.7.4 All affected items shall be removed by Construction Manager. This shall occur before
project commencement. The Project Manager will assure that Construction Manager conforms
to contract specifications for safe handling, storing and/or disposing of any non-electronic ballast
or mercury-containing device coordinating the disposal with City of Boynton Beach.
5.7.5 The Construction Manager shall place all items (discussed above) in appropriate
containers and will notify the Facility/Project Manager when finished. The Recycling Contractor
will then be contacted by Project Manager. Small quantities of less than one fluorescent tube-
recycling container shall be stored on site or picked up by warehouse for storing until a pick up
can be arranged. Small quantities of mercury switches, mercury thermostats and non-electronic
ballasts of less than one drum will be transported to area maintenance until a pick up by
recycler or disposal firm can be arranged.
73
5.7.6 Facility/Project Manager will sign Shipping Statements from Recycling Contractor and
forward the documents to the Owner.
5.8 COORDINATION WITH LOCAL LAWS
5.8.1 Nothing in this section shall act to alter the effect of restrictions imposed by local
government zoning laws and ordinances. The Construction Manager shall be responsible to
discover such local governmental zoning laws and ordinances, to restrict their construction
activities in order to comply with same and to account for such restrictions of construction
activities when planning this work schedule.
5.9 CONTRACTOR EXTENSION OF TIME
5.9.1 The Construction Manager shall not be entitled to any extension of the Contract Time for
delays resulting from the restrictions referenced under this Article 5.
ARTICLE 6
SAFETY CONCERNS
6.1 TRENCH SAFETY ACT
6.1.1 The Construction Manager and it's sub-contractors shall comply with the Trench Safety
Act, Chapter 90-96, Florida Statutes and the Occupational Safety and Health Administration
Standard 29 C.F.R.S. 1926.650, subpart P. The Construction Manager shall be required to
design a Trench Safety System and provide the Owner with the following information should
trench excavation be in excess of five (5) feet.
6.1.2 The proposal submitted by the Construction Manager to perform such excavation shall
include:
. A reference to the trench safety standards that will be in effect during the period of
construction of the Work.
. Written assurance by the Contractor performing the trench excavation that such Contractor will
comply with the applicable trench safety standards.
. A separate item identifying the cost of compliance with the applicable trench safety standards.
(Exhibit G).
6.1.3 A Sub-Contractor performing trench excavation shall:
. As a minimum, comply with the excavation safety standards, which are applicable to the Work.
. Adhere to special shoring requirements, if any, of the State or other political subdivision, which
may be applicable to such Work.
6.1.4 If any geotechnical information is available from the Owner, the Construction Manager, or
otherwise, the Sub-Contractor performing trench excavation shall consider this information in
the Construction Manager's design of the trench safety system which will be employed on the
Work. This paragraph shall not require the Owner to obtain geotechnical information.
74
6.1.5 The separate item identifying the cost of compliance with Trench Safety standards shall be
based on the linear feet or cubic yards of trench to be excavated. The separate item for special
shoring requirements, if any, shall be based on the square feet of shoring used. Every separate
item shall indicate the specific method of compliance as well as the cost of that method.
6.1.3.5 The Construction Manager shall prepare and submit a form containing the costs
required by subparagraph 6.1.2 above.
6.2 CODE OF FEDERAL REGULATIONS, LABOR-29 PART 1926 LATEST REVISION
6.2.1 The Construction Manager shall adhere to all pertinent rules and regulations including, but
not limited to, Code of Federal Regulation, Labor - 29, Part 1926, (Latest Revision).
6.3 DECLARATION OF ALCOHOL AND DRUG FREE ZONE
6.3.1 Article 10 of the General Conditions requires the Construction Manager to take reasonable
precautions for safety of the Work. To enhance the safety of the site, the Contractor shall
prohibit all alcoholic beverages and drugs therefrom.
6.3.2 The Construction Manager shall post signage indicating that the Job Site is an "Alcohol
and Drug Free Construction Site" and such acts are prohibited by the Contract with the Owner.
ARTICLE 7
OWNER'S REPRESENTATIVE
7.1 The Owner's representative(s) for this project shall be as identified in Exhibit F.
ARTICLE 8
MISCELLANEOUS
8.1 When applicable for projects funded in whole or in part by assistance from another
governmental agency the Construction Manager shall follow the procedures related to Small
and disadvantaged businesses per the Boynton Beach Procurement Code.
END OF SECTION
75
EXHIBIT F
PROJECT ASSIGNED REPRESENTATIVES
Owner:
Boynton Beach Community Redevelopment Agency
Owner's Authorized Representative(s): Vivian Brooks, Interim CRA Executive Director
Michael Simon, Development Director
Construction Manager: Kaufman Lynn Construction, Inc.
CM's Authorized Representative: Bruce Cavossa, Vice President
Architect-Engineer: Rick Gonzales, REG Architects, Inc.
David Perry, VHB MillerSellen, Inc.
76
EXHIBIT G
GUARANTEED MAXIMUM PRICE SUMMARY
DIVISION 1 - GENERAL REQUIREMENTS
DIVISION 2 - SITE CONSTRUCTION
DIVISION 3 - CONCRETE
DIVISION 4 - MASONRY
DIVISION 5 - STEEL
DIVISION 6 - CARPENTRY
DIVISION 7 - THERMAL / MOISTURE
DIVISION 8 - WINDOWS AND DOORS
DIVISION 9 - FINISHES
DIVISION 10 - SPECIALTIES
DIVISION 11 - EQUIPMENT
DIVISION 12 - FURNISHINGS (In Specialties Div 10)
DIVISION 13 - SPECIAL CONSTRUCTION
DIVISION 14 - ELEVATOR
DIVISION 15 - MECHANICAL
DIVISION 16 - ELECTRICAL
INSURANCE
$ 41,456.00
$ 192,548.00
$ 126,921.00
$ 22,040.00
$ 32,810.00
$ 10,961.00
$ 3.464.00
$ 11,430.00
$ 18,773.00
$117,760.00
$ 0.00
$ 0.00
$ 0.00
$ 15,000.00
$ 20,625.00
$ 130,882.00
$ 744.670.00
$ 5,614.00
$ 122,063.00
$ 81,040.00
$ 0.00
$ 953,388.00
TOTAL (divisions 1-16)
MANAGEMENTFEE(%)
GENERAL CONDITIONS & CONSTRUCTION MANAGEMENT
CONSTRUCTION CONTINGENCY
TOTAL GUARANTEED MAXIMUM PRICE
Certified True and Correct by:
NAMEITITLE
DATE
77
EXHIBIT H
ITEMS TO BE SUBMITTED
WITH CONSTRUCTION MANAGER'S REQUEST FOR FINAL PAYMENT
_1. Rush Requisition Routing Slip
_2. Pay Request (4 copies with original signatures and original seals, noted as Final)
_3. Final Schedule of Contract Values
_4. Consent of Surety to make final Payment (signed and sealed)
_5. Power of Attorney from Surety for Release of Final Payment (Signed and sealed and
dated same as Consent of Surety)
_6. Certificate of Contract Completion
a. page one completed by the general Construction Manager (original plus three copies)
b. page two completed by Architect-Engineer (original plus three copies)
_7. Contractor's Final Payment Affidavit
_8. Construction Manager's Guarantee of Construction for one year from the date of
substantial completion.
_9. Copy of the approval by the Architect-Engineer and the transmittal to the end user of
manuals, shop drawings, as-builts (one set of sepias, two sets of prints), brochures,
warranties, and List of Sub-Contractors, with telephone numbers, addresses and contact
person on disk.
_10. Verification that Using Agency personnel have been trained in the operation of their new
equipment (per system: HVAC, controls, fire alarm, etc.), attendance lists and preferred
_11. Fully executed Roof Warranty (if applicable) in the name of the Using Agency
_12. Other special warranties as required by specifications, in the name of the Using Agency
_13. Architect's Certificate of Specification of Asbestos Containing Materials
_14. Reconciliation of all Direct Payment Material Purchase Orders (DPO)
_15. Copy of Certificate of Occupancy
_16. All work in compliance with FL Building Code and Boynton Beach Code of Ordinances
NOTE: The Project Manager shall verify the math of all Pay Requests prior to signing Final Pay
Request to assure correct payment.
Project Number:
Project Name and Location:
Project Manager Signature:
78
EXHIBIT I
PERSONNEL ASSIGNED DURING CONSTRUCTION
SUMMARY OF CONSTRUCTION PHASE LABOR FEES
Percentage
Name I Title of Time Rate I Wk
Project Executive 0% $ 000.00
Senior Project Manager 0% $ 4,777.00
Project Manager 50% $ 2,800.00
Superintendent 100% $ 2,202.00
Project Coordinator 0% $ 000.00
Accounting Personnel 30% $ 1,500.00
79
EXHIBIT J
DRAWING LIST UPON WHICH THE GUARANTEED MAXIMUM PRICE IS BASED
Sheet
Date
Boynton Harbor Marina Entry Area
Revision
A01
A02
A03
A04
S-1
EO.1
E2.1
KEY
DEMO
HS-1
HS-2
HS-3
LS-1
LS-2
LS-3
IR-1
IR-2
IR-3
IR-4
G-1
E-1
E-2
9/6/201 0
9/6/2010
9/6/2010
9/6/201 0
9/6/2010
5/18/2010
5/18/2010
8/16/2010
6/24/201 0
6/24/2010
6/24/2010
6/24/2010
6/24/2010
6/24/2010
6/24/2010
6/24/2010
6/24/2010
6/24/2010
6/24/2010
6/24/2010
6/24/201 0
6/24/2010
none
1 Bldg Dept Cmmts 11/10/2010
1 Bldg Dept Cmmts 11/10/2010
1 Bldg Dept Cmmts 11/10/2010
none
1 B.D.C 11/10/2010
1 B.D.C 11/10/2010
none
none
none
none
none
none
none
none
none
none
none
none
none
none
none
80
EXHIBIT J
DRAWING LIST UPON WHICH THE GUARANTEED MAXIMUM PRICE IS BASED
Site Plan Review
Sheet
Date
Ruth Jones Cottage Relocation and Renovation
Revision
Cover
A-0.1
A-1.1
A-3.1
IR-1
LP-1
LP-2
PHM-1
Civil Cover
Civil 1 of 11
Civil 2 of 11
Civil 3 of 11
Civil 4 of 11
Civil 5 of 11
Civil 6 of 11
Civil 7 of 11
Civil 8 of 11
Civil 9 of 11
Civil 10 of 11
Civil 11 of 11
9/24/2010
9/24/2010
9/24/2010
9/24/2010
9/9/201 0
9/23/2010
9/14/2010
9/14/2010
7/28/201 0
7/28/2010
7/28/201 0
7/28/2010
7/28/2010
7/28/201 0
7/28/2010
7/28/201 0
7/28/2010
7/28/2010
7/28/2010
7/28/201 0
29/24/2020 TART REVIEW COMMENTS
2 9/24/2020 TART REVIEW COMMENTS
29/24/2020 TART REVIEW COMMENTS
29/24/2020 TART REVIEW COMMENTS
none
29/24/2020 TART REVIEW COMMENTS
none
1 9/14/2010 SITE PLAN REVIEW COMMENTS
none
none
none
none
29/9/2010 Rev. per TART Review Comments
none
none
none
none
none
none
none
81
Ruth Jones Cottage Relocation and Renovation (Cont.)
95% Construction Documents
8heet Date Revision
Cover 8/10/2010 none
A-O.O 8/10/2010 none
8-1.0 8/10/2010 none
8-1.1 8/10/2010 none
8-1.2 8/10/2010 none
8-1.3 8/10/2010 none
8-1 .4 8/10/2010 none
AD-O. 1 8/10/2010 none
AD-1 .1 8/10/2010 none
A-0.1 8/10/2010 none
L8-1 . 1 8/10/2010 none
A-1.1 8/10/2010 none
A-2.1 8/10/2010 none
A-3.1 8/10/2010 none
A-4.1 8/10/2010 none
A-5.1 8/10/2010 none
A-6.1 8/10/2010 none
A-9.1 8/10/2010 none
M-1 8/10/2010 none
M-2 8/10/2010 none
E-O 8/10/2010 none
E-1 8/10/2010 none
E-1.1 8/10/2010 none
E-2 8/10/2010 none
E-3 8/10/2010 none
PHM-1 8/10/2010 none
P-1 8/10/2010 none
P-2 8/10/2010 none
82
EXHIBIT J
DRAWING LIST UPON WHICH THE GUARANTEED MAXIMUM PRICE IS BASED
Ocean Ave Amphitheater
8heet Date Revision
Cover 9/28/2010 none
8-1 9/28/2010 none
8-1.1 9/28/2010 none
8-1.3 9/28/2010 none
A-O.O 9/28/2010 none
A-0.1 9/28/2010 none
AD-1.1 9/28/2010 none
AD-2.1 9/28/2010 none
A-1.1 9/28/2010 none
A-2.1 9/28/2010 none
A-3.1 9/28/2010 none
A-3.2 9/28/2010 none
A-4.1 9/28/2010 none
E-O 9/28/2010 none
E-1 9/28/2010 none
E-2 9/28/2010 none
E-3 9/28/201 0 none
83
EXHIBIT K
LIST OF QUALIFICATIONS AND ASSUMPTIONS
UPON WHICH THE GUARANTEED MAXIMUM PRICE IS BASED
I. Permit fees. impact fee.;. or any deposits paid to any utility <ntthority are to be paid for I'y the
Chvner.
1 Special and threshold inspections are not included ,md afl' to be paid for by the Chmer.
.t Material testing is not included and is to be paid fOI hy the Owner.
4. Inspt"tions. handling. or disposal of asbestos 01 any other hazardous material is not included.
5. The cost of the Builder's Risk or any deductihle is not included and i" to he paid for by the
Chvner.
6. A preliminary deduct allowance is not included and or required for probable 'Tax Rel'overy"
on DOP items.
7. For the project record. it is anticipated that the owner will conduct a baseline indoor air quality
"ur"ey of the existing building ('un'ently scht'duled hI IX' moved or It'nmated prior to
commencement of constl1lction activit)
8. Co"t of utility selv ices aftel the setting 01 re-setting of the building permanent utility m('ters is
not included.
9. Delay 01 nlsts relating to delays due to natural or unnatural disast('r. materials sh0l1age'- and 01
commodity cost escalation due to mano l'conomic conditions or 1II1\.:\'rtainties.
DIVISION 2: SITEWORK
l. Costs relating to unforeseen underground conditions, including but not limited to utility
relocations that are not or could not be reasonably located or indicated on project
drawings are excluded.
2. Costs of directional roadway boring / jack & bore for utility crossings have not been
included.
3. Any work other than this projects open road cutting for utility extensions, tie-in and
connection as may be required and located in public right of ways has not been included.
(Traffic signalization, ROW street lighting, conduits and wire for primary power service
up to and including the project electric transformers or telephone/internet infrastructure
cabling etc.)
4. Regarding the Ruth Jones Cottage Relocation. The new site which for the structure
currently has an existing asphalt parking lot with a rock base. It is the intent to utilize the
current Rock base as necessary to achieve the contract specification for the new parking
area.
DIVISION 3: CONCRETE
l. No special concrete requirements noted at this time.
84
DIVISION 4: MASONRY
1. No special masonry requirements noted at this time.
DIVISION 5: METALS
1. No special metals requirements noted at this time.
DIVISION 7: THERMAL AND MOISTURE PROTECTION
1. Fire Rated spray on coatings or any type have not been considered or included.
DIVISION 6: WOOD AND PLASTICS
1. No special wood requirements at this time.
DIVISION 8: DOORS AND WINDOWS
1. No special door and Windows requirements at this time.
DIVISION 9: FINISHES
1. No special finish requirements at this time.
DIVISION 10: SPECIAL TIES
1. Regarding the amphitheater awning design. No engineered plans have been provided as
per the construction permitted drawings. As the structure will need to be engineered the
architectural design intent will be maintained in respect tot the rendering but function
must take precedence over form as to properly meet hurricane ratings as per the contract
documents.
DIVISION 11: EOUIPMENT
1. No special equipment requirements at this time.
DIVISION 12: FURNISHINGS
1. No special furnishing requirements at this time.
DIVISION 14: ELEVATOR
1. No special elevator requirements at this time.
DIVISION 15: MECHANICAL
Plumbine:
1. Regarding the Ruth Jones Cottage Relocation. Pricing includes one restroom as per
contract documents.
85
Fire Protection
1. We assumed herein that the local water pressure main has been pressure tested and is
adequate to operate the new building fire protection systems without the need for a fire
pump; therefore this is not included at this time.
2. Fire Sprinkler service has not been included for the Ruth Jones Cottage Relocation at this
time it is not anticipated that they will require service due to existing conditions relating
to code issues.
HV AC Systems
1. No special HV AC requirements at this time.
DIVISION 16: ELECTRICAL
1. Electric Generators or any related equipment, conduits, panels or special wiring for same
have not been considered or included at this time.
2. We have not included repairs to existing FPL primary or secondary feeds prior to the
scope of work outlined by the permitted drawings.
3. We have not included AudioNisualNoice/Data low voltage wiring or termination boxes
at this time.
86
I I Consent Agenda I X I Old Business I I
New Business
Legal
I Executive Director's Report
SUBJECT: Consideration of Entering into Agreement with the Palm Beach County Commission on Ethics
SUMMARY: The CRA Board has discussed submitting the CRA to the jurisdiction of the Palm Beach
County Commission on Ethics (see attached minutes) CRA legal counsel has received hourly and event rates
from Alan Johnson, Executive Director of the Commission on Ethics (see attached e-mail).
The CRA can either utilize the services of the Commission on an hourly basis at the rates below;
Director:
Attorney:
Investigator:
Administrative:
$89.00
$40.00
$45.00
$40.00
Or conversely the CRA can elect to contract per event. Below are average costs per event:
Advisory opinion:
Complaint (inquiry through legal sufficiency finding):
Complaint (investigation through pc hearing):
Complaint (pc to settlement or final hearing):
Training:
$ 200.00
$ 300.00
$1,000.00
$ 750.00
N/C
FISCAL IMP ACT: To be determined by Board decision.
CRA PLAN, PROGRAM OR PROJECT: N/A
RECOMMENDA TIONS/OPTI ONS: Submit the CRA to the jurisdiction of the Palm Beach County
Commission on Ethics on a per event basis.
~/~/
Vivian L. Brooks
Interim Executive Director
T:\AGENDAS, CONSENT AGENDAS, MONTHLY REPORTS\Completed Agenda Item Request Forms by Meeting\FY 2010 - 2011 Board
Meetings\03-09-11 Meeting\PBC Ethics.doc
Meeting Minutes
Community Redevelopment Agency Board
Boynton Beach, FL
September 14, 2010
they had a home already. It was tax dollars. He thought the Board had an
obligation to determine how to develop the district; not to do it for everyone.
He explained the reason the prices increased when the D'Almeida's researched
the rents listed for the establishment the Community Redevelopment Agency had
researched as potential locations for their office, was because they read about it
in the paper. He thought some consideration should be given to that. He
asserted the staff did not have to move right now.
There being no further comments, the public comment was closed.
There was a vote on the motion. The motion passed, 4-1 (Mr. Hay dissenting.)
Chair Rodriguez clarified the Magnusun House conversation indicated an
investment of $850,000 and another $800,000 to restore it for offices.
XI. Legal:
A. Establish Schedule for Transition of Current Board Members and
Attorney Records
B. Discussion and Action on Submitting the CRA to Jurisdiction of the
Palm Beach County Ethics Commission and Authorizing
Agreements to Effectuate that Intent
Attorney Cherof explained there was no backup to this item. It was a continuation
of a discussion held by the City Commission about entering into an agreement to
turn over jurisdiction of ethics complaints and review to the County Commission
on Ethics. If that was moved forward on the City Commission Agenda and
approval of an agreement was made, then the Community Redevelopment
Agency would need to decide if they wanted to join that agreement. If they
wished to do so, the agreement between the City and County would be amended
to include the Community Redevelopment Agency. It would be a tri-partied
agreement with identical terms. The Board could approve it contingent on the
City approving it. The agreement could be amended before it goes to the City
Commission to show the inclusion of the Community Redevelopment Agency as
a signatory. A motion was required.
Motion
Mr. Hay so moved to enter the Community Redevelopment Agency's portion of it
with the County and the City. Vice Chair Ross seconded the motion that
unanimously passed.
Mr. Holzman left the dais at 8:18 p.m.
14
/'
Meeting Minutes
Community Redevelopment Agency Board
Boynton Beach, . Florida
'October 12, 2010
package (the coconut trees, Bahia sod and mural) would run approximately $10,000. If
the wall was painted white, eliminating the artwork, and the coconut trees and sod
were installed, the cost would cost would fall into the $5,500-$6,000 range.
Ms. Brooks felt the property should be sodded. She explained that previously, for the
Brandom property, railroad ties had been installed and the property was grassed. As
part of the Seacrest project, Public Art would be installed at the intersection of MLK and
Seacrest Boulevard to include four panels on each comer. An additional vertical piece
would be located in the sarah Sims triangle. She suggested a few trees be added, not
necessarily Coconut Palms, which are costly. Grass would prevent a barren feel when
driving by the area. She added the appearance of the neighborhood was in the midst
of changr and she hoped the CRA properties were contributing to the pOSitive change.
Mr. Holzman suggested an option of just grass and railroad ties. Mr. Simon explained
this was covered by Option 2 which could also include the railroad ties. Chair Rodriguez
agreed with Option 2 as there were ample trees in the swale area. The Board agreed
benches should not be placed on the property.
Motion
Mr. Holzman moved to approve Option 2. Mr. Hay seconded the motion that passed
unanimously.
C. Consideration of Authorizing Funding in the amount of $ to the Palm
Beach County Commission on Ethics to Provide Investigation Services to the
CRA
Attorney Cherof provided baCkground on the item. The City had previously agreed to
submit to the jurisdiction of the Palm Beach Ethics Commission, and the eRA Board has
agreed to do so as well. The first step in the process Includes training to be provided
by the County to City staff and Board members as well as CRA staff and the CRA
Agency Board free of charge. The County does not believe the CRA Is covered under
the City's jurisdiction in the conduct of an investigation of a complaint and wants to
enter Into a separate agreement with the CRA, charging a flat fee. The amount
suggested was $5,000-$10,000 for the first year, with the amount to be evaluated at
the end of the year. Pursuant to the communication received by Attorney Cherof, the
County was not opposed to an hourly rate, but as mentioned above, suggested a flat
fee. Attorney Cherof did not favor a flat fee, and suggested negotiating further
regarding an hourly rate and the expectation of time involved. Training had not yet
commenced and nothing was pending. Attorney Cherof requested the Board's
authorization to respond that the Board was not yet comfortable with the flat fee.
There was Board consensus to authorize Attorney Cherof to respond.
7
Page
Brooks, Vivian
From: Shana Bridgeman [SBridgeman@cityatty.com]
Sent: Tuesday, February 15, 2011 2:22 PM
To: Brooks, Vivian
Cc: Jim Cheraf
Subject: FW: Boynton Beach CRA
Vivian:
Below is AI Johnson's response regarding the hourly rate for Ethics Commission services. Please review and
advise.
Thank you,
Shana H. Bridgeman
GOREN, CHEROF, DOODY & EZROL, P.A.
3099 East Commercial Boulevard, Suite 200
Fort Lauderdale, Florida 33308
Telephone (954) 771-4500x321 * Fax (954) 771-4923
Email: sbridgeJngn@~ityatty.com
www.cityatty.com
Offices in Fort Lauderdale and Delray Beach, Florida
Disclaimer: This E-Mail is covered by the Electronic Communications Pnvacy Act, 18 use fifi 2510-2521 and IS legally
privileged. The information contained in this E-Mail is intended only for use of the individual or entity named above If the
reader of this message is not the intended recipient, or the employee or agent responsible for delivering it to the intended
recipient, you are hereby notified that any dissemination, distribution. or copying of this communication is strictly
prohibited. If you receive this E-Mail in error, please notify the sender immediately at the phone number above and delete
the information from your computer. Please do not copy or use it for any purpose nor disclose its contents to any other
person.
From: Alan Johnson S. [mailto:AJohnson@palmbeachcountyethics.com]
Sent: Monday, February 14, 2011 3:48 PM
To: Shana Bridgeman
Subject: Boynton Beach eRA
Shana;
There are two ways we can go with the eRA. One is per event and the other, hourly. The hourly breakdown for
the COE is as follows:
Director:
Attorney:
Investigator:
Administrative:
$89.00
$40.00
$45.00
$40.00
Alternatively, we can contract per event. The following is an average cost/time per event:
')/"),,/")(\11
Page 2 of2
Advisory opinion:
Complaint (inquiry through legal sufficiency finding):
Complaint (investigation through pc hearing):
Complaint (pc to settlement or final hearing):
Training:
$ 200.00
$ 300.00
$1,000.00
$ 750.00
N/C
To date, most complaints and inquiries have not gone beyond the legal sufficiency stage. None have gone to
final hearing. A contract would be annual and subject to revision based on pay rate changes. let me know if SS
wants to proceed. Thanks
AI
Alan S. Johnson
Executive Director
Commission on Ethics
Ph 561-233-0725
Fx 561-233-0735
www.palmbeachcountyethics.com
AijOlt o.
11'1\
: . ..f#" , ~
~ .. .:(A-
~C1I
"Honesty, Integrity, Character"
Under Florida law, e-mail addresses are public records. If you do not want your e-mail address released in
response to a public records request, do not send electronic mail to this entity. Instead, contact this office by
phone or in writing.
2/25/2011
eRA BOARD MEETING OF: March 9, 2011
I Consent Agenda I
Old Business I X I
New Business
Public Hearing
Other
SUBJECT: Consideration of funding the Boynton Beach Community Gardens in the amount of$450
SUMMARY: Under public comment at the February 8, 2011 CRA board meeting, Victor Norfus,
Manager of the Boynton Beach Community Gardens, requested funding from the CRA for supplies
needed to maintain the community gardens. Attached is Mr. Norfus' letter dated February 7, 2011 with
a breakdown of the supplies and the costs.
FISCAL IMPACT: $450.00 from 02-58200-406 HOB Project Funding
CRA PLAN, PROGRAM OR PROJECT: Heart of Boynton Community Redevelopment Plan
RECOMMENDATIONS: Approve funding for the community garden in the amount of $450 with the
stipulation that Mr. Norfus will provide the CRA Board with a written report on the impact of the garden on the
local community along with photos of the garden by September 15,2011.
Vivian L. roo s
Interim Executive Director
T:\AGENDAS, CONSENT AGENDAS, MONTHLY REPORTS\Completed Agenda Item Request Forms by Meeting\FY 2010 - 2011 Board
Meetings\03-09-11 Meeting\Community Gardens Donation.doc
Date: Monday, February 7,2011
Subjec~: Community Gardens Donation $450.00
From: Br. Victor D. Norfus - Manager
Dear Community Redevelopment Agency:
My name is Br. Victor D. Norfus. 1 am the new Manager for the
Community Gardens. 1 am writing to you on behalf of the non-profit
Boynton Beach Community Gardens. We have had much success in
growing fresh vegetables for local residents. The residents maintain small
plots of fresh vegetables, in the CRA area, to offset the cost of their food.
There is currently a need for new supplies to maintain the community
Gardens. There is a need for tools, seeds, seedlings, topsoil and other
supplies. We are asking for a donation to purchase these supplies totaling
$450.00. Here is a breakdown for supplies.
$75 Miracle Grow
$75 Top Soil
$75 Fertilizer & Bug Repellant Powder
$75 Hoses, Sprinklers, Hoe, Rake, Shovel, Paint, Nails, etc.
$50 Vegetable Seeds & Edible Flowers (Beans, peas, com, etc)
$100 Seedlings (collards. cabbage. onions. Green & Hot peppers. etc)
$450.00 Total
The Boynton Beach Community Gardens would greatly appreciate a
donation of $450.00 to purchase the supplies listed. The supplies would be
purchased at the local Home Depot or similar store.
Thank you in advance for all of your support!
Br. Victor D. Norfus, Community Gardens Manager
261 N. Palm Drive Boynton Beach FI. 33435
Phone: 561-601-0790
Boynton Beach Community Gardens 2011
eRA BOARD MEETING OF: March 9, 2011
I Consent Agenda I
Old Business I X I
New Business
Public Hearing
Other
SUBJECT: Consideration of sponsoring INCA's Annual Picnic in the amount of $175 to cover the
cost of the special event permit fee.
SUMMARY: INCA is holding their 16th Annual Fund Raising Picnic on May 1,2011 at Intracoastal
Park. Due to the costs to hold the event, INCA is requesting the CRA to pay for the special event permit
in the amount of $175.00. See attached email from Anne Constantine, INCA Picnic Committee
Member.
FISCAL IMPACT: $175.00 from 01-51010-203
CRA PLAN, PROGRAM OR PROJECT: N/A
RECOMMENDA TIONS:
~~
Vivian L. Brooks
Interim Executive Director
T:\AGENDAS, CONSENT AGENDAS, MONTHLY REPORTS\Completed Agenda Item Request Forms by Meeting\FY
2010 - 2011 Board Meetings\03-09-11 Meeting\INCA Picnic.doc
Page
Brooks, Vivian
From: JRodriguez Ureguez@aol.com]
Sent: Wednesday, March 02, 2011 7:00 AM
To: Brooks, Vivian
Subject: Fwd: Need your Help Please/INCA Picnic
Can we help?
Best, Jose
-----Original Message-----
From: Anneconstantines <Anneconstantines@aol.com>
To: jreguez <jreguez@aol.com>
Sent: Wed, Mar 2, 2011 6:57 am
Subject: Need your Help PleasellNCA Picnic
lose
Can you please call me ..
We needyourhelp with INCA 16th Annual Fund Raising Picnic Plans for 2011.
We have scheduled it on,' May 1st Event this year and would like to Hold it at the Intracoastal
Park
due to the large Crowd consisting of Neighborhoods,City Official Depts, and City
vehicles, Parking was a Huge problem last year ..
Being a nonprofit Florida Corporation representing 9 Neighborhoods, consisting of 400
Households in Boynton Beach, The amount of the Fees for the Park are excessive.
INCA has paid the Reservation Fee $200.00 for the Park and Now are being told to hold a
Special Event ipermit will be an additional $175.00
Can You Please Help Us?
Anne Constantine
Co-Director for Mariner Village
INCA Picnic Committee Member
561-271-2592
Anne Constantine
.
3/2/2011
eRA BOARD MEETING OF: March 9, 2011
I Consent Agenda I
Old Business I X I
New Business
Public Hearing
Other
SUBJECT: Consideration of sponsoring the Florida Trust for Historic Preservation's 2011 Annual
Conference.
SUMMARY: The Florida Trust for Historic Preservation is holding its 2011 Annual Conference
May 18-21 in Orlando, FL. Caroline W eiss (of the Florida Trust for Historic Preservation) has contacted
the City and the CRA requesting sponsorship for the conference (see attached email). Sponsorship
ranges from $225 to $5,000 (see attached sponsorship schedule).
The CRA has not participated in this event in the past. Staff is requesting the Board to choose a
sponsorship level (if any) and appoint the appropriate person from the City and/or the CRA to attend the
event.
Travel expenses for this conference are not budgeted in this fiscal year. However, if the Board chooses
to send a CRA Board member or CRA staff member to the conference, costs will be determined and the
Chairman and Interim Executive Director will approve the travel request and associated costs. If a City
staff member is appointed to attend the conference, travel costs will be borne by the City.
FISCAL IMPACT: $225 to $5,000 from 01-51010-203 for sponsorship only.
CRA PLAN, PROGRAM OR PROJECT: N/A
RECOMMENDATIONS:
~~
Interim Executive Director
fjagc
Brooks, Vivian
From: Caroline Weiss [caroline@floridatrust.org]
Sent: Tuesday, March 01, 2011 3:20 PM
To: LaVerriere, Lori; Brooks, Vivian
Cc: 'Rick Gonzalez'
Subject: Statewide Historic Preservation Conference
Attachments: Florida Trust Conference Tentative Schedule At a Glance.pdf; Marketplace Info 2011.pdf; FL
Trust 2011 Sponsorship Benefits and Form B.pdf
Hi Lori and Vivian,
Rick Gonzalez, a Trustee of the Florida Trust for Historic Preservation, suggested that I contact you regarding
your potential interest in our upcoming conference. May 18-21 of this year, the Florida Trust will be hosting our
33rd Statewide Preservation Conference. This year, we will be in the Central Florida area, and headquartered at
the Grand Bohemian Hotel, in the heart of Orlando's historic downtown
The conference offers many opportunities for education and networking, as well as places to market your historic
sites. We are in the process of overhauling our website, so I have attached some documents that might be of
interest to you.
1) The Current Conference at a Glance which shows you the basic schedule (the full descriptions will be
available this month)
2) The Restoration Marketplace Information (our vendor section)
3) Our Sponsorship Information (including benefits to your sponsorship)
Thanks and please let me know if you have any additional questions.
As you know from your involvement in 2009, this conference brings hundreds of architects, planners, contractors,
and preservation and history-buffs in general for 3 days of workshops and tours of local historic sites.
Please note that we have just extended the deadline for the marketplace and sponsorship, so let me know if you
have any interest - we would love to have you involved!
Caroline
Caroline Weiss
Florida Trust for Historic Preservation
(850) 224-8128
caroline@floridatrust.org
1n/?Oll
2011 Annual Conference Sponsorship Opportunities
May 18-21,2011, Central Florida
All sponsors receive by March 4, 2011 will be acknowledged in the Annual Conference Preliminary
Material. All sponsors will be acknowledged in the On-Site Conference Brochure (distributed to all
conference attendees), Florida Trust's quarterly newsletter (1,500 circulation statewide), and listed on all
publicity boards located at the Annual Conference
Additional sponsor benefits are listed below:
PLATINUM SPONSOR - $5,000
· Co-Sponsorship of the Restoration Marketplace
· 6 complimentary tickets to a Special Event
· Three (3) complimentary full conference registrations (includes all special events, tours and workshops)
· An invitation to the President's Party
· Complementary exhibit table in the Restoration Marketplace
GOLD SPONSOR - $2,500
· Sole sponsorship of a Full Day Tour; or Sole Sponsorship for two Half-Day Tours (depending on tour
schedule)
· 4 complimentary tickets to a Special Event
· Two (2) complimentary full conference registrations (includes all special events, tours and workshops)
· An invitation to the President's Party
· Opportunity to provide publicity materials or information on the take-one table in the Restoration Marketplace
SILVER SPONSOR - $1,000
· Sole sponsorship ofa Half Day Tour or Sole Sponsorship of two Workshops
· 2 complimentary tickets to a Special Event
· One (1) complimentary full conference registration
· An invitation to the President's Party
· Opportunity to provide publicity materials or information on the take-one table in the Restoration Marketplace
BRONZE SPONSOR - $500
· Sponsorship ofa Workshop of your choice
· 2 complimentary tickets to a Special Event
PATRON - $250
· 1 complimentary ticket to a Special Event
ANNUAL CONFERENCE CONTRIBUTIONS - $225 OR LESS
The Florida Trust appreciates any contributions toward the Annual Conference. Contributions of $225 or less will be
acknowledged in the Spring issue of the Florida Preservationist.
All contributions are tax deductible as allowable by law. Documentation of the sponsor's gift will be provided by the Florida Trust
for Historic Preservation, a non-profit corporation with 501(c)(3) tax-status. For more information, please contact staff at (850)
224-8128 or information@floridatrust.org.
i../.:.T..:1l.......
/. ;..k;it\hi''-
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~~~.. ";Ai...L.,.J
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, .
YES, I/WE WANT TO BE A CO-SPONSOR OF
the 2011 Annual Statewide Preservation Conference!
May 18-21,2011
Sponsoring Org.:
Contact Person:
Address:
City/State/Zip:
Phone #:
Contact Email:
Sponsorship Level:
Amount:
OR
Annual Conference Contribution ($225 or less) Amount: __.
Please make check payable to:
Florida Trust for Historic Preservation, Inc.
Post Office Box ] 1206
Tallahassee, Florida 32302-3206
Fax (850) 224-8159
www.floridatrust.org
Questions?
Call the Florida Trust (850) 224-8128
lnformation@floridatrust.org
All contributions are tax deductible as allowed by the law. Documentation of the sponsor's gift will be provided by the
Florida Trust for Historic Preservation, a nonprofit corporation 501(c)(3) tax status.
~~~~Y~Te~ eRA
. East Side-West Side-Seaside Renaissance
eRA BOARD MEETING OF: March 9, 2011
I Consent Agenda I I Old Business IX I
New Business
Legal
I Executive Director's Report
SUBJECT: Consideration of Entering into a Hold Harmless Agreement with Splashdown Divers
SUMMARY: Ms. Lynn Simmons owner of Splashdown Divers and a tenant of the CRA' s at the marina;
has been housing several large parrots on CRA property. Ms. Simmons had the birds sitting loose on a piece of
driftwood located on the exterior ofthe dive shop. Staff was concerned that one of the birds could injure a
member of the public. Staff sent a letter to Ms. Simmons in November of 20 1 0 requesting that she remove the
birds from the premises.
Since that time, Ms. Simmons has kept the birds within her shop and does not let them loose on the property.
Ms. Simmons is requesting to be able to keep the birds and is offering the CRA a Hold Harmless Agreement to
relieve the CRA of any liability arising from an event caused by the birds.
Attached is the Hold Harmless Agreement which CRA counsel has reviewed and approved to form.
FISCAL IMPACT: N/A
CRA PLAN, PROGRAM OR PROJECT: N/A
RECOMMENDA TIONS/OPTIONS: Approve and execute the Hold Harmless Agreement between
the CRA and Splashdown Divers.
v~
Interim Executive Director
-------
T:\AGENDAS, CONSENT AGENDAS, MONTHLY REPORTS\Completed Agenda Item Request Forms by Meeting\FY 2010 - 2011 Board
Meetings\03-09-11 Meeting\Bird Hold Harmless Splashdown.doc
HOLD HARMLESS AGREEMENT
mIS HOLD HARMLESS AGREEMENT (hereinafter referred to as the
"Agreement") made and entered into this day of February, 2011, by and between
Splashdown Divers, Inc. (hereinafter referred to as "Tenant") and The Boynton Beach
Community Redevelopment Agency (hereinafter referred to as "Landlord").
WITNESSETH:
WHEREAS, Landlord is the fee owner of certain real property being, lying and
situated in Palm Beach County, Florida, such real property having a street address of 700
Casa Lorna Boulevard, Boynton Beach, Florida (hereinafter referred to as the
"Premises").
WHEREAS, Tenant retains a parrot on the Premises; and
WHEREAS, Landlord is concerned about its potential liability to third parties as
result of the Tenant's retention of a parrot on the Premises and Landlord is desirous of
being held harmless for any liability to third parties arising out of Tenant's retention of
the parrot on the Premises;
NOW, THEREFORE, for and in consideration of the covenants and obligations
contained herein and other good and valuable consideration, the receipt and sufficiency
of which is hereby acknowledged, the parties hereto hereby agree as follows:
1. Tenant hereby agrees to indemnify, hold harmless and defend Landlord
from and against any and all loss, damage, claim, cost and expense and any other
liability, including, without limitation, reasonable attorneys' fees, charges, and costs
incurred by Landlord by reason of, or with respect to any claim made against it arising
out of Ten ant's retention of the parrot on the Premises.
2. If a claim by a third party is made against Landlord, and if Landlord
intends to seek indemnity with respect thereto under this section, Landlord shall promptly
notify Tenant of such claim. Tenant shall then timely undertake, conduct and control,
through counsel of its own choosing and at its expense, the settlement or defense
therefore, and Landlord shall reasonably cooperate with it in connection therewith.
3. This Agreement shall be governed, construed and interpreted by, through
and under the laws of the state of Florida.
4. This Agreement has been negotiated by and between attorneys for the
parties and shall not be construed against either party as the "drafter" of the Agreement.
IN WITNESS THEREOF, the parties have hereunto executed this agreement.
LANDLORD ("Landlord"):
BOYNTON BEACH COMMUNITY REDEVELOPMENT AGENCY:
By:
Date:
TENANT ("Tenant"):
Splashdown Divers, Inc.
BY:~<
L . ons, President
Date:
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Established per Ordinance No. 11-009
7 Regulars
5 Commissioners
2 citizens - four year terms.
:J C ' I
2011
COMMUNITY REDEVELOPMENT AGENCY BOARD
Members: EXDires Phone Profession
p James (Buck) Buchanan 03/13 704-5954 Consultant
;) 807 Ocean Inlet Drive (33435) Appt'd 3/11 jebuch@aol.com
Woodrow Hay 03/11
, 100 E. Boynton Beach Blvd. havw@bbfl.us
f Steven Holzman 03/13
100 E. Boynton Beach Blvd. holzmans@bbfl.us
f Mark Karageorge 03/15 414-6099
240A Main Blvd. (33435) Appt'd 3/11 markkaraqeorqe@comcast.net
f William Orlove 03/13
100 E. Boynton Beach Blvd. orloveb@bbfl.us
y1 Jose Rodriguez, Chair 03/13
100 E. Boynton Beach Blvd. rodriquezi@bbfl.us
I)
t Marlene Ross, Vice Chair 03/11
100 E. Boynton Beach Blvd. rassm@bbfl.us
BOARD ATTORNEY:
James Cheraf
100 Boynton Beach Blvd.
742-6053
CRA INTERIM EXECUTIVE DIRECTOR:
Vivian Brooks
1620 S. Federal Highway
374-7476
S:\CC\WP\BOARDS\L1STS\2011 Board List\COMMUNITY REDEVELOPMENT AGENCY BOARD.doc