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REVIEW COMMENTS DEPARTMENT OF DEVELOPMENT MEMORANDUM ENG 99-071 DATE: TRC MEMBERS Bob Borden, Assistant Fire Marshal Ray Davidson, Acting City Engineer Michael Haag, Building Division Kevin Hallahan, F oresterlEnvironmentalist Sgt. Eric Jensen, Police Department Al Kim, Public Works Department Pete Mazzella, Utilities Department Michael Rumpf, Director of Planning & Zoning John Wildner, Parks Division Ken Hall, Engineering Plan Check Inspectorffechnician ~ Nancy Byrne, Acting Director of Deve10pmentjr May 20, 1999 TO: FROM: THRU: RE: GROVE PLAZA REPLAT AND ASSOCIATED CONSTRUCTION DRAWINGS FINAL REVIEW Please review the subject documents and provide the Engineering Division with your written responses by June 4. 1999. Thanks. KRH/ck xc: William Bingham, Fire Chief Marshall Gage, Police Chief John Guidry, Utilities Director Don Johnson, Building Division Larry Roberts, Public Works Director C:\My Documents\TRC MEMBERS - Grove Plaza Replat Final Review.doc DEPARTMENT OF DEVELOPMENT MEMORANDUM ENG 99-072 ~~ C:c--Cs . /l 0-". Gc"",,- --'c::. 'l '6' c2c. <y~[;,/ t"t;. ~ c "'- 7""('> v r ._~"' FROM: James Cherof, City Attorney Michael Rumpf, Director of Planning & Zoning Kevin Hallahan, Urban Forester Nancy Byrne, Acting Director ofDevelopment~ Ken Hall, Engineering Plan Check InspectorfTechnician ~ May 20, 1999 TO: THRU: DATE: RE: '- -\ REVISED HOMEOWNER'S DOCUMENTS FOR T~ GROVE PLAZA MASTER. PROPERTY OWNER'S ASSOCIATION Please review the subject documents to see that they meet the City's requirements and provide a written response to the Engineering Division by June 4, 1999. Thanks. These documents are being resubmitted for assurance that they are the same as those reviewed in April of 1998. KRH/ck Attachments m(~~~~ ~JL~~.n....- '"I L MAY? r Ii.!; PMr~;/;:ii 8Eift5~-'-'" . """"--.."..._-.-----"'-...._~. - ",' C:\My Documents\Grove Plaza - Revised HOA Documents.doc ri-J~I J"'"'\. " 6 .' ,-<-.:) DECLARATION OF COVENANTS AND RESTRICTIONS FOR GROVE PLAZA MASTER PROPERTY OWNERS ASSOCIATION, INC. This Declaration of Covenants, Conditions, ("Declaration") is made this day of H. Janke and Alice Fay (collectively "Declarant".) WITN.ESSETH: and Restrictions , 1999, by Walter WHEREAS, Declarant is the owner of the real property described In Exhibit "A" attached hereto and incorporated herein by reference; and WHEREAS, the real property described in Exhibit "A" is the subject of that certain Development Approval for Grove Plaza Development, as the same as may be amended from time to time ("Grove Plaza Development Approval"), adopted by the City Commission of the City of Boynton Beach, Florida. WHEREAS, the Grove Plaza Development Approval requires that a master property owners association be formed ("Master POA Requirement"). NOW, THEREFORE, Declarant declares that all of the real property described in Exhibit "A" and any additional property as may by Subsequent Amendment (as defined herein) be added to and subjected to this Declaration (collectively the "Properties"), shall be held, sold, and conveyed subject to the following easements, restrictions, covenants, and conditions which are for the purpose of protecting the value and desirability of, and which shall run with, the real property subject to this Declaration, and which shall be binding all all parties having any right, title, or interest in the described Properties or any part hereof, their heirs, successors, successors-in-title, and assigns, and shall inure to the benefit of each owner thereof. This Declaration does not and is not intended to create a condominium within the meaning of Chapter 718, Florida Statues. ARTICLE I DEFINITIONS SECTION 1. "Area of Common Responsibility" shall mean and refer to the Common Areas, together with those areas within any commercial establishment which are the responsibility of the Association. In addition, the office of any property manager employed by or contracting with the Association and located on the Properties shall be part of the Area of Common Responsibility. SECTION 2. "Association" shall mean and refer to Grove Plaza Master Property Owners Association, Inc., a Florida corporation not-far-profit, its, successors and assigns. The "Board of Directors" or "Board" of the Association shall be the body having its normal meaning under Florida law. The Association shall Incorporation and its Association, all such Documents" . be governed by this Declaration, its Articles of By-Laws and any rules and regulations of the documents being known as the "Association SECTION 3. "Common Areas" shall mean all real property within the Properties designated as Common Areas from time to time by plat instrument or recorded amendment to this Declaration and provided for, owned, leased by, or dedicated to, the common use and enjoyment of the Owners within the Properties. The Common Areas may include, without limitation, open space areas, improvements, easement areas owned by others, landscaping in public rights of way, lakes, fountains, irrigation pumps, irrigation lines, swale areas, buffer areas, bike paths, sidewalks, streets, street lights, service roads, walls commonly used, utility facilities, project signage, parking areas, other lighting, entranceways, features and gates, as well as surface water management systems, including all lakes, retention/ detention areas, conservation areas, culverts and related appurtenances. The Common Areas do not include any portion of a building. Notwithstanding anything herein contained to the contrary, the definition of "Common Areas" as set forth in this Declaration is for descriptive purposes only and shall in no way bind or obligate Declarant to construct or supply any such item as set forth in such description. Further, no party shall be entitled to rely upon such description as a representation or warranty as to the extent of the Common Areas to be owned, leased by or dedicated to Association, except after construction and dedication or conveyance of any such item. The Common Areas shall be conveyed to the Association by the Declarant, its successors and assigns, as may be applicable, free and clear of all encumbrances, and the Association shall accept such conveyance, subject to the provisions of Article VIII Section 2 hereof. SECTION 4. "Declarant" shall mean and refer to Walter H. Janke and Alice Fay, their successors and assigns. Any assignment which is made by Declarant may be of all interests of Declarant or only a portion of such interests. Any assignment shall be recorded in the Public Records. SECTION 5. "District" shall mean and refer to the South Florida Water Management District. SECTION 6. "LWDD" shall mean and refer to the Lake Worth Drainage District. SECTION 7. "Master Development Plan" shall mean and refer to the plan for the development of the Properties most recently approved by City of Boynton Beach, Florida, as it may be amended from time to time. SECTION 8. "Member" shall mean and refer to a person or entity entitled to Membership in the Association, as provided herein. 2 SECTION 9. "Monthly Assessments" shall have the meaning set forth in Article X, Section 1 (a) hereof. SECTION 10. "Operating Costs" shall mean and refer to all costs and expenses of the Association and the Common Areas including, without limitation, all costs of ownership; operation; administration; all amounts payable by Association; utilities; taxes; insurance; bonds; security costs; salaries; management fees; professional fees; service costs; supplies; maintenance; repairs; replacements; refurbishments; and any and all costs relating to the discharge of the obligations hereunder, or as determined to be part of the Operating Costs by the Association. By way of example, and not of limitation, Operating Costs shall include all of the Association's legal expenses and costs relating to or arising from the enforcement and/or interpretation of this Declaration. SECTION 11. "Owner" shall mean and refer to one or more persons or entities who hold the record title to any Parcel which is part of the Properties, but excluding in all cases any party holding an interest merely as security for the performance of an obligation. If any portion of the Properties is sold under a recorded contract of sale, the purchaser (rather than the fee owner) will be considered the Owner. The term "Owner" shall include the Declarant and any Parcel Developer. SECTION 12. "Parcel" shall mean and refer to a platted or unplatted lot or tract, unit or other subdivision of real property upon which a building has been, or will be, constructed. Once improved, the term Parcel shall include all improvements thereon and appurtenances thereto. The term Parcel, as used herein, may include more than one building. SECTION 13. "Parcel Assessments" shall mean and refer to assessments levied against all Owners in each respective Parcel. The Parcel Assessments shall include, without limitations, each Owner's prorata share of the Assessments, as defmed in Article X hereof, charged to the Owners within a Parcel, collected by the Association. SECTION 14. "Parcel Developer" shall mean and refer to such person or entity which takes title to a parcel for purposes of development, lease and/ or sale of a particular product type in the ordinary course of business and is designated as such by Declarant by Supplemental Declaration as recorded in the Public Records. SECTION 15. "Person" means a natural person, a corporation, a partnership, trustee or other legal entity. SECTION 16. "Properties" or "Grove Plaza" shall mean and refer to the real property described in Exhibit "A" attached hereto and shall further 3 refer to such additional property as may hereafter be annexed by Subsequent Amendment to this Declaration or which is owned by the Association. SECTION 17. "Public Records" shall mean the Public Records of Palm Beach County, Florida. SECTION 18. "Reserves" shall have the meaning set forth in Article X, Section l(c) hereof. SECTION 19. "Special Assessments" shall mean and refer to assessments levied in accordance with Article X, Section 8(b) of this Declaration. SECTION 20. "Subsequent Amendment" shall mean an amendment to this Declaration which adds additional property to that covered by this Declaration. Such Subsequent Amendment may, but is not required to, impose, expressly or by reference, additional restrictions and obligations on the land submitted by that Amendment of the provisions of this Declaration. SECTION 21. "Surface Water Management System" shall mean the drainage system for the Properties permitted by the District and the LWDD. ARTICLE II RIGHT OF ENJOYMENT Every Owner and the Declarant shall have a right and easement of enjoyment in and to the Common Areas subject to this Declaration and to any restrictions or limitations contained in any deed or amendment to this Declaration conveying to the Association or subjecting to this Declaration such property . ARTICLE III MEMBERSHIP AND VOTING RIGHTS SECTION 1. Membership. Each Owner and all Parcel Developers, for such period that such respective party owns any lands subject to this Declaration, shall be deemed to have a membership in the Association. SECTION 2. Voting. Each parcel shall have one (1) vote of the Association. Except as otherwise provided in the Association Documents, all votes shall be exercised through the Board of Directors of the Association in the manner set forth in Section 3 hereafter. SECTION 3. Board of Directors. The Board of Directors shall be initially comprised of three (3) persons. Until three (3) months after five (5) parcels are sold or have been conveyed by Declarant, its successors and assigns, to Owners, other than Parcel Developers, or such earlier date as may 4 be elected by Declarant, in its sole discretion, Declarant shall have the right to appoint all members of the Board of Directors of the Association and each member of the Board of Directors shall have an equal vote. Thereafter, the Board shall be expanded to as many seats as there are Parcels within the Properties at that time and each member of the Board shall have the voting power as set forth below. At such time as Declarant no longer appoints all members of the Board of Directors, each Parcel shall elect one (1) member to the Board of Directors of the Association. The manner of election of such member shall be as determined by the respective Owner. Should a particular Parcel be exempted by Declarant, in its sole discretion, by instrument recorded in the Public Records, then the rights as otherwise granted to such Parcel shall be exercised by the Owner thereof in accordance with terms and conditions as set forth in such instrument. Replacement of members of the Board of Directors shall be made by the respective party with the right to so designate or elect the same. SECTION 4. Implementation. Wherever a minimum affirmative vote is required by the Association Documents, such vote shall be deemed to require the minimum total vote of all votes permitted to be cast of the Association and not a minimum vote of those present and voting. ARTICLE IV MAINTENANCE AND PARCEL MATTERS SECTION 1. Association's Responsibility. It is the intent of Declarant that the Association maintain and administer only those functions which are common to all parcels. The Association shall maintain and keep in good repair the Area of Common Responsibility, such maintenance to be funded as hereinafter provided. This maintenance shall include, but not be limited to, maintenance, monitoring, repair, and replacement, subject to any insurance then in effect, of all landscaping and other flora, structures, wetland mitigation areas, wetlands and improvements situated upon such Areas, if applicable. The Association may, in the discretion of its Board, assume other maintenance responsibilities set out in any Subsequent Amendment of Declaration subsequently recorded upon all or any portion of the Properties. In such event, all costs of such maintenance shall be assessed only against those Members residing in the portion of the Properties to which the services are provided. This assumption of responsibility may take place either by contract or because, in the opinion of the Board, the level and quality of service then being provided is not consistent with the community-wide standard of maintenance of the Properties. The provision of services in accordance with this Section shall not constitute discrimination within a class. 5 SECTION 2. Trees. Certain existing trees on the Properties shall be maintained in accordance with the Tree Disposition Plan for Grove Plaza, prepared by Michael T. Schale Landscape Architect and Associates, P.A., dated August 9, 1995, approved by the City of Boynton Beach, Florida. The Association shall be responsible for maintaining such trees. SECTION 3. Changes in Responsibility. Any changes which result in an increase of the maintenance responsibility of the Association shall require a vote of two-thirds (2/3) approval of the Board of Directors. ARTICLE V INSURANCE AND CASUALTY LOSSES SECTION 1. Insurance. The Association's Board of Directors, or its duly authorized agent, shall have the authority to and shall obtain blanket all-risk insurance, if reasonably available, for all insurable improvements on the Common Areas. If blanket all-risk coverage is not reasonably available, then at a minimum, an insurance policy providing fire and extended coverage shall be obtained. This insurance shall be in an amount sufficient to cover one hundred (100%) percent of the replacement cost of any repair or reconstruction in the event of damage or destruction from any insured hazard. The Board shall also obtain a directors and officers liability policy in such --amounts as determined by the Board of Directors covering the Association and its Members for all damage or injury caused by the negligence of the Association or any of its Members or agents. The Board shall also obtain a public liability policy covering the Common Areas. The public liability policy shall have at least a One Million ($1,000,000.00) Dollar single person limit as respects bodily injury and property damage, a Three Million ($3,000,000.00) Dollar limit per occurrence, if reasonably available, and a Five Hundred Thousand ($500,000.00) Dollar minimum property damage limit. Premiums for all such insurance shall be common expenses of the Association. The policies may contain a reasonable deductible, and the amount thereof shall be added to the face amount of the policy in determining whether the insurance at least equals the full replacement cost. The deductible shall be paid by the party who would be responsible for the repair in the absence of insurance and in the event of multiple parties shall be allocated in relation to the amount each party's loss bears to the total responsible. Cost of insurance coverage obtained by the Association for the Common Areas shall be included in the Operating Costs as more particularly described in Article X, Section 3 of this Declaration. All such insurance cov~rage obtained by the Board of Directors shall be written in the name of the Association as 6 Trustee for the respective benefited parties, as further identified in (b) below. Such insurance shall be govemed by the provisions hereinafter set forth: (a) All policies shall be written with a company licensed to do business in Florida which holds a Best's rating of A or better and is assigned a financial size category of XI or larger as established by A.M. Best Company, Inc., if reasonably available, or, if not available, the most nearly equivalent rating. (b) All policies on the Common Areas shall before the benefit of the Owners and their Mortgagees as their interests may appear. (c) Exclusive authority to adjust losses under policies in force on the Properties obtained by the Association shall be vested in the Association's Board of Directors; provided, however, no mortgagee having an interest in such losses may be prohibited from participating in the settlement negotiations, if any, related thereto. (d) In no event shall the insurance coverage obtained and maintained by the Association's Board of Directors hereunder be brought into contribution with insurance purchased by individual Owners, occupants, or their mortgagees. (e) All casualty insurance policies shall have an inflation guard endorsement, if reasonably available, and an agreed amount endorsement with an annual review by one or more qualified persons, at least one of whom must be in the real estate industIy and familiar with construction in the Palm Beach County, Florida, area. (f) The Association's Board of Directors shall be required to make every reasonable effort to secure insurance policies that will provide for the following: (i) a waiver of subrogation by the insurer as to any claims against the Association's Board of Directors, its manager, the Owners, and their respective tenants, servants, agents, and guests; (ii) a waiver by the insurer of its rights to repair, and reconstruct, instead of paying cash; (iii) that no policy may be canceled, invalidated or suspended on account of anyone or more individual Owners; (iv) that no policy may be canceled, invalidated, suspended on account of the conduct of any Director, officer, or employee of the Association or its duly authorized manager without prior demand in writing delivered to the Association to cure the defect and the allowance of a reasonable time thereafter 7 within which the defect may be cured by the Association, its manager, any Owner, or mortgagee; (v) that any "other insurance" clause in any policy exclude individual Owners' policies from consideration; and (vi) that no policy may be canceled or substantially modified without at least ten (10) days prior written notice to the Association. SECTION 2. Individual Insurance. By virtue of taking title to a Parcel subject to the terms of this Declaration, each Owner covenants and agrees with all other Owners and with the Association that each Owner shall carry blanket all-risk casualty insurance on his Parcel(s) and structures constructed thereon as provided for in Section 1 of this Article V, unless the Association carries such insurance (which they are not obligated to do). Each Owner further covenants and agrees that in the event of a partial loss or damage and destruction resulting in less than total destruction of structures comprising his Parcel, the Owner shall proceed promptly to repair or to reconstruct the damaged structure in a manner consistent with the original construction. In the event that the structure is totally destroyed and the Owner determines not to rebuild or to reconstruct, the Owner shall clear the Parcel of all debris and return it to substantially the natural state in which it listed prior to the beginning of construction. SECTION 3. Damage and Destruction. (a) Immediately after the damage or destruction by fire or other casualty to all or any part of the Properties covered by insurance written in the name of the Association, the Board of Directors, or its duly authorized agent, shall proceed with the filing and adjustment of all claims arising under such insurance and obtain reliable and detailed estimates of the cost of repair or reconstruction of the damaged or destroyed Properties. Repair or reconstruction, as used in this paragraph, means repairing or restoring the Properties to substantially the same condition in which they existed prior to the fire or other casualty. (b) Any damage or destruction to the Common Areas shall be repaired or reconstructed unless the Members representing at least seventy-five percent (75%) to the total vote of the Association shall decide within sixty (60) days after the casualty not to repair or reconstruct. If for any reason either the amount of the insurance proceeds to be paid as a result of such damage or destruction, or reliable and detailed estimates of the cost of repair or reconstruction, or both, are not made available to the Association within said period, then the period shall be extended until such information shall be made available; provided, however, such extension shall not exceed sixty (60) days. No mortgagee shall have the right to participate in the determination of 8 whether the Common Areas damage or destruction shall be repaired or reconstructed. (c) In the event that it should be determined in the manner described above that the damage or destruction still not be repaired or reconstructed and no alternative improvements are authorized, then and in that event the affected portion of the Properties shall be restored to their natural state and maintained by the Association in a neat and attractive condition. SECTION 4. Repair and Reconstruction. If the damage or destruction for which the insurance proceeds are paid is to be repaired or reconstructed, and such proceeds are not sufficient to defray the cost thereof, the Board of Directors shall, without the necessity of a vote of the Members, levy a Special Assessment against all Owners in proportion to the number of Parcels owned. Additional assessments may be made in like manner at any time during or following the completion of any repair or reconstruction. ARTICLE VI NO PARTITION Except as is permitted in the Declaration or amendments thereto, there shall be no physical partition of the Common Areas or any part thereof, nor shall any person acquiring, any interest in the Properties or any part thereof seek any such. judicial partition until the happening of the conditions set forth in Section 4 of Article V in the case of damage or destruction, or unless the Properties have been removed from the provisions of this Declaration. This Article shall not be construed to prohibit the Board of Directors from acquiring and disposing of tangible personal property nor from acquiring title to real property which mayor may not be subject to this Declaration. ARTICLE VII CONDEMNATION Whenever all or any part of the Common Areas shall be taken (or conveyed in lieu of and under threat of condemnation by the Board acting on the written direction of all Owners and the Declarant) by any authority having the power of condemnation or eminent domain, each Owner and the Declarant shall be entitled to notice thereof. The award made for such taking shall be payable to the Association as Trustee for all Owners and the Declarant to be disbursed as follows: If the taking involves a portion of the Common Areas on which improvements have been constructed, then, unless within sixty (60) days after such at least seventy-five percent (75%) of the total votes of the Association permitted to be cast shall otherwise agree, the Association shall restore or replace such improvements so taken on the remaining land included in the Common Areas to the extent lands are available therefor, in accordance with 9 plans approved by the Board of Directors of the Association. If. such improvements are to be repaired or restored, the above provisions in Article V hereof regarding the disbursement of funds in respect to casualty damage or destruction which is to be repaired shall apply. If the taking does not involve any improvements on the Common Areas, or if there is a decision made not to repair or restore, or if there are net funds remaining after any such restoration or replacement is completed, then such award or net funds shall be disbursed to the Association and used for such purposes as the Board of Directors of the Association shall determine. ARTICLE VIII ANNEXATION OF ADDITIONAL PROPERTY SECTION 1. Annexation With Approval of Board. Subject to consent of the owner thereof, on the affirmative vote of two-thirds (2/3) of the total votes of the Association as cast by the Board, the Association may annex real property to the provisions of this Declaration and the jurisdiction of the Association by filing of record in the Public Records, an amendment in respect to the Properties being annexed. Any such amendment shall be signed by the President and the Secretary of the Association, and the owner of the properties being annexed, and any such, annexation shall be effective upon filing unless otherwise provided therein. The relevant provisions of the By-Laws dealing with regular or special meetings, as the case may be,. shall apply to determine the time required for and the proper form of notice of any meeting called for the purpose of considering, annexation of property pursuant to this Section 1 and to ascertain the presence of a quorum at such meeting, SECTION 2. Acquisition of Common Areas. Notwithstanding the provisions of Section 1 hereof, Declarant, its successors and assigns, may convey to the Association additional real estate, improved or unimproved, located within the real property subject to this Declaration, or annexed into this Declaration pursuant to Section 1 of this Article, without consent of the Board, which upon conveyance or dedication to the Association shall be accepted by the Association and thereafter shall be maintained by the Association at its expense for the benefit of all its Members. Any conveyance so made by Declarant shall not require the joinder or consent or any party. SECTION 3. Withdrawal. Until such time as Declarant no longer owns any portion of the Properties, any portions of the Properties (or any additions thereto) may be withdrawn by Declarant from the provisions and applicability of this Declaration by the recording of any amendment to this Declaration in the Public Records. The right of Declarant to withdraw portions of the Properties shall not apply to any land which has been conveyed to an Owner unless that right is specifically reserved in the instrument of conveyance or the prior written consent of the Owner is obtained. The withdrawal of any portion of the Properties shall not require the consent or joinder of any other party 10 (iricluding, but not limited to, Declarant, Association, Owners, or any lenders as to any lands subject to this Declaration). The Association shall have the right to withdraw land from the Properties upon affirmative vote of two-thirds (2/3) of the total votes of the Association as cast by the Board. Under no circumstances shall land be withdrawn from this Declaration or any amendment thereto that would result in any maintenance responsibility for the City of Boynton Beach, Florida. ARTICLE IX RIGHTS AND OBLIGATIONS OF THE ASSOCIATION SECTION 1. Common Areas and Rights-of-Way. The Association, subject to the rights of the Owners set forth in this Declaration, shall be responsible for the exclusive management and control of the Common Areas and all improvements thereon (including, without limitations furnishings and equipment related thereto and common landscaped areas), and shall keep it in good, clean, attractive, and sanitary condition, order, and repair, pursuant to the terms and conditions hereof. SECTION 2. Personal Property and Real Property for Common Use. The Association, through action of its Board of Directors, may acquire, hold, and dispose of tangible and intangible personal property and real property. The Board, acting on behalf of the Association, will accept any real or personal property, leasehold, or other property, interests within the Properties conveyed to it by the Declarant, its successors and assigns. SECTION 3. Rules and Regulations. The Association, through its Board of Directors, may make and enforce reasonable rules and regulations goveming the use of the Properties, which rules and regulations shall be consistent with the rights and duties established by this Declaration. SECTION 4. Implied Rights. The Association may exercise any other right or privilege given to it expressly by this Declaration or the By-Laws, and every other right or privilege reasonably to be implied from the existence of any right or privilege given to it herein or reasonable necessary to effectuate any such right or privilege. SECTION 5. Mortgaging or Conveyance of Common Areas. The Common Areas cannot be mortgaged or conveyed unless approved by at least two-thirds (2/3) of the total votes of the Association as cast by the Board. SECTION 6. DISSOLUTION OF THE ASSOCIATION. If the Association shall be dissolved, such portions of the Common Areas which comprise the Surface Water Management System, more particularly described in Article XI hereof, shall be conveyed to an appropriate agency or local government or, if not accepted, to a not-for-profit corporation similar in structure and purpose to the Association. This Section 6 may not be amended without the consent of 11 the District and the LWDD. Under no circumstances shall the City of Boynton Beach, Florida, be responsible for any maintenance or repair responsibilities in the Common Areas should the Association be dissolved. ARTICLE X ASSESSMENTS SECTION 1. Types of Assessments. Each Owner shall hereafter be deemed to have covenanted and agreed to pay to Association assessments at the time and in the manner required by the Board, assessments or charges and any special assessments as are fIxed, established and collected from time to time by Association (collectively, the "Assessments"), which Assessments shall be collected by the Association. The Assessments levied by Association shall be used for, among other things, the purpose of promoting the health, safety and welfare of the owners of the Properties, and in particular for the improvement and maintenance of the Common Areas and any easement in favor of the Association, including but not limited to the following categories of Assessments as and when levied and deemed payable by the Board: (a) Any monthly assessment or charge for the purpose of operating the Association and accomplishing any and all of its purpose, as determined in accordance herewith including, without limitation, payment of Operating Costs and collection of amounts necessary to pay any deficits from prior years' operation and costs for compliance with terms and provisions of the Grove Plaza Master Plan (hereinafter "Monthly Assessments"); (b) Any special assessments for capital improvements, major repairs, emergencies or non-recurring expenses (hereinafter "Special Assessments"); (c) Assessments of any kind for the creation of reasonable reserves for any of the aforesaid purposes. At such time as there are improvements in any Common Areas for which Association has a responsibility to maintain, repair, and replace, Association may, but shall have no obligation to, include a "Reserve for Replacement" in the Monthly Assessments in order to establish and maintain an adequate reserve fund for the periodic maintenance, repair, and replacement of improvements comprising a portion of the Common Areas (hereinafter "Reserves"). Assessments pursuant to this Section 1 shall be payable in such manner and at such times as determined by Association, and may be payable in installments extending beyond the fiscal year in which the Reserves are approved. (d) Assessments for which one or more Owners (but less than all Owners) within the Properties is subject, such as costs of, or costs relating to enforcement of the provisions of this Declaration as it relates to a particular Owner or Parcel ("Individual Assessments"). The cost thereof, plus the reasonable administrative expenses of Association, shall be an Individual 12 Assessment. The lien for an Individual Assessment may be foreclosed in the same manner as any other Assessment. SECTION 2. Designation. The designation of Assessment type shall be made by Association upon affirmative vote of two-thirds (2/3) of the total votes of the Association as cast by the Board. Such designation may be made on the budget prepared by Association. SECTION 3. Allocation of Operating Costs. (a) For the period until the adoption of the first annual budget, the allocation of Operating Costs shall be as set forth in the initial budget prepared by Declarant. (b) In the event the Operating Costs as estimated in the budget for a particular fiscal year is, after the actual Operating Costs for that period is known, more or less than the actual costs, then the difference shall, at the election of Association: (i) be added to the calculation of Monthly Assessments for the next ensuing fiscal year; or (ii) be immediately collected from a Parcel as a Special Assessment. Association shall have the unequivocal right to specially assess a Parcel retroactively on January 1st of any year for any shortfall in Monthly Assessments, which Special Assessment shall relate back for the prior year to the date that the Monthly Assessments could have been made. No vote of the Owners shall be required for such Special Assessment (or for any other Assessment except to the extent specifically provided herein). (c) Each Parcel and the Members thereof agree that so long as it does not pay more than the required amount it shall have no grounds upon which to object to either the method of payment or non-payment by the other Parcel of any sums dues. SECTION 4. General Assessments Allocation. Except as hereinabove or hereinafter specified to the contrary, Monthly Assessments, Special Assessments and Reserves shall be allocated by each Parcel equally to each Owner. SECTION 5. Commencement of First Assessment. Subject to the provisions hereof, Assessments shall commence as to each portion of the Properties on the date determined by the Board of Directors of the Association upon affirmative vote of two-thirds (2/3) of the total votes of the Association as cast by the Board. The Board of Directors, in their discretion, may assess unimproved portions of the Properties at a lower rate than completed Parcels. With respect to assessments during a period in which all or a portion of the lands described herein are exempt from assessment, assessments shall be only imposed against lands which are subject to assessment. 13 SECTION 6. Shortfalls and Surpluses. All Persons subject to this Declaration acknowledge that because Monthly Assessments, Special Assessments, and Reserves are allocated based on the formula provided herein, it is possible that Association may collect more or less than the amount budgeted for Operating Costs. So long as Declarant owns any portion of the Properties, Declarant shall either fund all or any portion of the shortfall in Monthly Assessments not raised by virtue of Monthly Assessments against the Parcels. Declarant shall never be required to fund shortfalls in or pay Special Assessments, management fees or Reserves. Any surplus Assessment collected by Association may be allocated towards the next year's Operating Costs or, in Association's sole and absolute discretion, to the creation of Reserves, whether or not budgeted. Under no circumstances shall Association be required to pay surplus Assessments to Owners. Under no circumstance shall Declarant be required to pay any portion of any shortfall arising by virtue of any lands being exempt from assessment as set forth in Section 5 above or otherwise under this Declaration. SECTION 7. Budgets. The initial budget of the Association and each annual budget thereafter shall be adopted by an affirmative vote of two-thirds (2/3) of total votes of the Association as cast by the Board. The initial budget of the association is projected (not based on historical operating figures). Therefore, it is possible that actual assessments may be lesser or greater than projected. SECTION 8. Establishment of Assessments. Assessments shall be established in accordance with the following procedures: (a) Monthly Assessments shall be established by the adoption of a twelve (12) month operating budget by the Board. Written notice of the amount and date of commencement thereof shall be given to each Parcel and its Members not less than ten (10) days in advance of the due date of the first installment thereof. Notwithstanding the foregoing, the budget may cover a period of less than twelve (12) months if the first budget is adopted mid-year or in order to change the fiscal year of the Association. (b) Special Assessments and Individual Assessments may be established by Association, from time to time, and shall be payable at such time or time(s} as determined. So long as Declarant, its designated successors and assigns, owns any of the Properties, no Special Assessment shall be imposed without the consent of Declarant, its designated successors and aSSIgns. (c) Association may establish, from time to time by resolution, rules or regulations, or by delegation to an officer or agent, including a professional management company. 14 SECTION 9. Assessment Estoppel Certificates. No Owner shall sell or convey its interest in an interest in the Properties subject to this Declaration unless all sums due the Association have been paid in full and an estoppel certificate in recordable form shall have been received by such Owner. Association shall prepare and maintain a ledger noting Assessments due from each Owner. The ledger shall be kept in the office of Association, or its designees, and shall be open to inspection by any Owner. Within ten (10) days of written request therefor, there shall be furnished to an Owner an estoppel certificate in writing setting forth whether the assessments have been paid and/ or the amount which is due as of any date. As to parties other than Owners who, without knowledge of error, rely on the certificate, the certificate shall be conclusive evidence of the amount of any Assessment therein stated. The Owner requesting the estoppel certificate shall be required to pay Association a reasonable sum to cover the costs of examining records and preparing such estoppel certificate. Each Owner waives its rights (if any) to an accounting related to Operating Costs or Assessments. SECTION 10. Payments of Real Estate Taxes. Each Parcel Owner shall pay all taxes and obligations relating to its lands which, if not paid, could become a lien against the lands which is superior to the lien for Assessments created by this Declaration. SECTION 11. Creation of the Lien and Personal Obligation. Each Parcel Owner, by acceptance of a deed or instrument of conveyance for the acquisition of title to any land subject to the terms of this Declaration, shall be deemed to have covenanted and agreed that the Assessments, and/ or other charges and fees set forth herein, together with interest, late fees, costs and reasonable attorneys' fees and paraprofessional fees at all levels of proceedings including appeals, collections and bankruptcy, shall be a charge and continuing line in favor of Association encumbering such land and all personal property located thereon owned by the Owner against which each such Assessment is made. The lien is effective from and after recording a Claim of Lien in the Public Records stating the legal description of the land, name of the Owner and the amounts due as of that date, but shall relate back to the date that this Declaration is recorded. The Claim of Lien shall also cover any additional amounts which accrue thereafter until satisfied. Each Assessment, together with interest, late fees, costs and reasonable attorneys' fees and paraprofessional fees at all levels including appeals, collection and bankruptcy, and other costs and expenses provided for herein, shall be the personal obligation of the person who was the Owner of the land subject to this Declaration at the time when the Assessment became due, as well as the Owner's heirs, devisees, personal representative, successors or assigns. SECTION 12. Subordination Of The Lien To Mortgages. The lien for Assessments shall be subordinate to bona fide first mortgages on the applicable portion of land subject to this Declaration, if the mortgage is 15 recorded in the Public Records prior to the Claim of Lien. The lien for Assessments shall not be affected by any sale or transfer of such land, except in the event of a sale or transfer (by deed in lieu of foreclosure or otherwise) of such land pursuant to a foreclosure of a bona fide first mortgage, in which event, the acquirer of title, its successors an assigns, shall not be liable for Assessments encumbering such land or chargeable to the former Owner of the land which became due prior to such sale or transfer. However, any such unpaid Assessments for which such acquirer of title is not liable may be reallocated and assessed to all Owners (including such acquirer of title) as a part of Operating Costs included within Monthly Assessments. Any sale or transfer (by deed in lieu of foreclosure or otherwise) pursuant to a foreclosure shall not relieve the Owner from liability for, nor the respective portion of land subject to this Declaration from the lien of, any Assessments made thereafter. Nothing herein contained shall be construed as releasing the party liable for any delinquent Assessments from the payment thereof, or the enforcement of collection by means other than foreclosure. SECTION 13. Acceleration. In the event of a default in the payment of any Assessment, Association may accelerate the Assessments then due for up to the next ensuing twelve (12) month period. SECTION 14. Non-payment of Assessments. If any Assessment is not paid within fifteen (15) days (or such other period of time established by the Board) after the due date, a late fee of $25.00 per month per delinquent Parcel (or such greater amount established by the Board), together with interest in an amount equal to the maximum rate allowable by law (or such lesser rate established by the Board), per annum, beginning from the due date until paid in full, may be levied. Association may, at any time thereafter, bring an action at law against the Owner personally obligated to pay the same to the Association, and/or foreclose the lien against the Parcel, or both. Association shall not be required to bring such an action if it believes that the best interests of Association would not be served by doing so. There shall be added to the Assessment all costs expended in preserving the priority of the lien and all costs and expenses of collection, including attomeys' fees and paraprofessional fees, at all levels of proceedings, including appeals, collection and bankruptcy. No Owner may waive or otherwise escape liability for Assessments provided for herein by non-use of, or the waiver of the right to use the Common Areas or by abandonment of a Parcel or land. SECTION 15. Exemption. Declarant, at Declarant's sole option, may pay Assessments on Parcels owned by it or shall pay the shortfalls as set forth in Section 6 of this Article. In addition, the Board, upon affirmative vote of two-thirds (2/3) of the total votes of the Association as cast by the Board, shall have the right to exempt any portion of the Properties subject to this Declaration from the Assessments, provided that such part of the Properties exempted is used (and as long as it is used) for any of the following purposes: 16 (a) Any easement oi.'other interest therein dedicated and accepted by the local public authority and devoted to public use; (b) Common Areas; (c) Any of the Properties exempted from ad valorem taxation by the laws of the State of Florida; (d) Any easement or other interest dedicated or conveyed to not for profit corporations for the use and benefit of residents in the Development of Regional Impact of which the Properties are a part. Except as otherwise provided in this Article, and in this Section, no land or improvements devoted to a Parcel shall be exempt from Assessments. SECTION 16. Collection by Declarant. If for any reason Association shall fall or be unable to levy or collect Assessments, then in that event, Declarant shall at all times have the right but not the obligation: (i) to advance such sums as a loan to Association to bear interest and to be repaid as hereinafter set forth; and/ or (ii) to levy and collect such Assessments by using the remedies available as set forth above, which remedies, including but not limited to, recovery of attorneys' fees and paraprofessional fees at all levels including appeals, collections and bankruptcy, shall be deemed assigned to Declarant for such purposes. If Declarant advances sums, it shall be entitled to immediate reimbursement, on demand, from Association for such amounts so paid, plus interest thereon at the Wall Street Journal Prime Rate plus two percent (2%), plus any costs of collection including, but not limited -to, reasonable attorneys' fees and paraprofessional fees at all levels, including appeals, collections and bankruptcy. SECTION 17. Rights to Pay Assessments and Receive Reimbursement. Association or Declarant, and any respective Lender with respect to any portion of land subject to this Declaration shall have the right, but not the obligation, jointly and severally, and at their sole option, to pay any Assessments or other charges which are in default and which mayor have become a lien or charge against such portion of land. If so paid, the party paying the same shall be subrogated to any enforcement rights of Association with regard to the amounts due. ARTICLE XI DRAINAGE AND SURFACE WATER MANAGEMENT SECTION 1. Drainage System. Any drainage system shall comply with the terms and conditions of the District and LWDD permits referenced in Section 2 hereof. The respective Parcel Developers and Owners shall be solely responsible for (i) the drainage systems which are internal to each respective Parcel and (ii) any environmental mitigation areas and conservation areas lying solely within the respective Parcel. The Association shall have no responsibility for installation, maintenance, cost or expense with respect to items (i) and (ii) 17 above. The sole responsibility of the Association with regard to drainage being the maintenance of surface water management system as set forth in Section 2. SECTION 2. Surface Water Management Regulations. The. District and LWDD have permitted the installation of a Surface Water Management System benefiting the Properties. The Association is responsible to operate and maintain the Surface Water Management System, including any monitoring requirement, which may be associated therewith (but specifically excludes items (i) and (ii) of Section 1 above). The costs of the operation and maintenance of Surface Water Management System is part of the Operating Costs of Association and each Owner shall pay Assessments which shall include a pro rata share of such costs. An estimate of the costs of operation and maintenance of the Surface Water Management System, if any, will be included in each budget of Association. Association shall submit to the District and the LWDD any proposed amendment to the Association Documents which will affect the Surface Water Management System, including any environmental conservation areas and the water management portions of the Common Areas. The District and LWDD shall then inform Association as to whether the amendment requires a modification of the District permit or the LWDD permit for the Properties. Once Association receives the modification to the District permit and/ or LWDD permit and any additional conditions to the permits, both shall be attached as an exhibit to an amendment to this Declaration, which amendment shall not require the approval of the Owners. Association shall maintain copies of all water management permits and correspondence with respect to such permits for the benefit of the Association. After initial construction of the Surface Water Management System, the permits applicable thereto as issued by the District and LWDD may be assigned by Declarant to Association, and upon such assignment, Association shall assume rights and obligations thereunder. SECTION 3. The LWDD License Agreement, recorded in ORB , Page , as may be amended or assigned from time to time ("License Agreement") sets forth certain requirements, obligations and rights between the Association and the LWDD as it relates to the Lake Worth Drainage District L- 18 Canal. The License Agreement provides that under certain circumstances the License Agreement will be terminated and the paving, parking and approved landscaping may be removed. It is the obligation of the Association to insure that the terms and conditions of the License Agreement are met. SECTION 4. Conditions of the Properties. Swales and waterbodies, whether man-made, altered or natural are part of or contribute to the Surface Water Management System and are not designed as aesthetic features. Rainfall and groundwater elevations may affect the depth of waterbodies from dry to deep, and the maintenance of a particular water level is not the responsibility of the Association or Declarant. 18 All Persons, Owners, Mortgagees, and all of their invitees and licensees are hereby put on notice of these conditions of the Properties, natural, altered and man-made, and by entering the Properties or acquiring any interest in any part of the Properties acknowledge the necessary existence of these conditions which, under certain circumstances, may be hazardous. Neither the Declarant not the Association shall have a duty to protect anyone from the consequences of contact with these conditions. ARTICLE XII GENERAL PROVISIONS SECTION 1. Term. The covenants and restrictions of this Declaration shall run with and bind the Properties, and shall inure to the benefit of and shall be enforceable by each of the Declarant, Association or the Owner of any Properties subject to this Declaration, their respective legal representatives, heirs, successors, and assigns, for a term of thirty (30) years from the date this Declaration is recorded, after which time they shall be automatically extended for successive periods of ten (10) years, unless an instrument in writing, signed by a majority of the then Owners, has been recorded within the year preceding the beginning of each successive period of ten (10) years, agreeing to change said covenants and restrictions, in whole or in part, or to terminate the same. Under no circumstances shall the City of Boynton Beach, Florida, be responsible for any maintenance or repair responsibilities in the Common Areas should the term of these covenants and restrictions expire. - SECTION 2. Amendment. Except as elsewhere stated herein, this Declaration may be amended only by the affirmative vote or written consent, or any combination thereof, of the Board of Directors representing two-thirds (2/3) of the total votes of the Association. However, the percentage of votes necessary to amend a specific clause shall not be less than the prescribed percentage of affirmative votes required for action to be taken under that clause. Any amendment must be recorded in the Public Records. Under no circumstances shall the City of Boynton Beach, Florida, be responsible for any maintenance or repair responsibilities in the Common Areas as a result of an amendment to this Declaration. SECTION 3. Indemnification. The Association shall indemnify every officer, director, and committee member against any and all expenses, including counsel fees, reasonably incurred by or imposed upon any officer or director in connection with any action, suit, or other proceeding (including settlement of it or proceeding, if approved by the then Board of Directors) to which he or she may be a party by any such reason of being or having been an officer or director. The officers and directors shall not be liable for any mistake of judgment, negligent or otherwise, except for their own individual willful misfeasance, malfeasance, misconduct, or bad faith. The officers and directors shall have no personal liability with respect to any contract or other 19 commitment made by them, in good faith, on behalf of the Association (except to the extent that such officers or directors may also be Members of the Association), and the Association shall indemnify and forever hold each such officer and director free and harmless against any and all liability to others on account of any such contract or commitment. Any right to indemnification provided for herein shall not be exclusive of any other rights to which any officer or director, or former officer or director, may be entitled. The Association shall, as a common expense, maintain adequate general liability and officers' and directors' liability insurance to fund this obligation, if such insurance is reasonably available, as set forth in Article V above. SECTION 4. Easements of Encroachment. There shall be reciprocal appurtenant easements of encroachment as between each Parcel and such portion or portions of the Common Areas adjacent thereto or as between adjacent Parcels due to the unintentional placement or settling or shifting of the improvements constructed, reconstructed, or altered thereon (in accordance with the terms of these restrictions) to a distance of not more than one (1) foot, as measured from any point on the common boundary between each Parcel and the adjacent portion of the Common Areas or as between said adjacent Parcels, as the case may be, along a line perpendicular to such boundary at such point; provided, however, in no event shall an easement for encroachment exist if such encroachment occurred due to willful and knowing conduct on the part of an Owner, of the Association. SECTION 5. Easements and Permits Reserved. In order to effect orderly development of the Properties and to comply with governmental requirements, from time to time existing, Declarant hereby reserves to itself, and its designated successors and assigns (including, without limitation, the City of Boynton Beach, Florida, and any utility) blanket easements upon, across, over, and under all of the Common Areas and the Properties for ingress, egress, installation, replacing, repairing, and maintaining drainage, Surface Water Management System, and all utilities, including but not limited to, water, sewers, meter boxes, telephones, gas, and electricity for the benefit of lands within the Properties. With respect to any such easement reserved, it is further reserved to Declarant, its successors and assigns, the right to modify or relocate any easement. Any plat within the Properties or specific grant of easement may designate the location of easements and upon such designation, any modification or relocation of easement shall not adversely and materially impact any buildings by falling within the building pad of a building, unless such easement is required to serve the respective building. Any portion of the reserved easements may be assigned by written instrument to the Association, and the Association shall accept the assignment upon such terms and conditions as are acceptable to the assignor, or to any other Person. If any portion of the reserved easement is assigned to the Association, the Board shall, upon written request, grant such easements as may be reasonably necessary for the development of any Properties or that may be annexed in 20 accordance with Article VIII of this Declaration. Association or and any Owners will, without charge, if requested by Declarant: (a) join in the creation and/ or relocation of the easements and the operations thereof; and (b) collect and remit fees associated therewith, if any, to the appropriate party. Any grant or relocation of easement or relocation of easement may be prior to or subsequent to the conveyance of a Parcel so encumbered. Should any entity fumish a service covered by the general easement herein provided request a specific easement by separate recordable document, the Board of Directors shall have the right to grant such easement on said Properties without conflicting with the terms hereof. The easements provided for in this Article shall in no way adversely affect any other recorded easement on the Properties. The Board shall have the power to dedicate, by a two-thirds (2/3) affirmative of the total votes of the Association as cast by the Board, all or part of the Common Areas to Palm Beach County, Florida, or other local, state, or federal govemmental entity. SECTION 7. Severability. Invalidation of anyone of these covenants or restrictions by judgment or court order shall in no way affect any other provisions which shall remain in full force and effect. SECTION 8. Litigation. No judicial or administrative proceeding shall be commenced or prosecuted by the Association unless approved by a vote of seventy-five percent (75%) of the Board of Directors. This Section shall not apply, however, to (a) actions brought by the Association to enforce the provisions of this Declaration (including, without limitation, the foreclosure of liens), (b) the imposition and collection of personal assessments as provided in Article X hereof, (c) proceedings involving challenges to ad valorem taxation, or (d) counterclaims brought by the Association in proceedings instituted against it. This Section shall not be amended unless such amendment is made by the Declarant or is approved by the percentage votes, and pursuant to the same procedures, necessary to institute proceedings as provided above. SECTION 9. Enforcement. The Declarant, Association or any Owner shall have the right to enforce, by a proceeding at law or in equity, all restrictions, conditions, covenants, reservations, liens and charges now or hereafter imposed by the provisions of this Declaration. Court costs and reasonable attomeys' fees for a proceeding at law to enforce this Declaration, including any appeal thereof, shall be bome by the Owner(s) against whom the suit has been filed, if the Declarant, Association or other Owner who brought the proceeding prevails. Failure by the Declarant, Association, or by any Owner to enforce any covenant or restriction herein contained shall in no event be deemed a waiver of the right to do so thereafter. 21 SECTION 10. Authority of Board. Except when a vote of the membership of the Association is specifically required, all decisions, duties, and obligations of the Association hereunder may be made by the Board. Association and Owners shall be bound thereby. SECTION 11. Approval of Association Lawsuits by Members. No judicial or administrative proceeding shall be commenced or prosecuted by Association unless approved by a vote of seventy-five percent (75%) of the Owners. This Section 11 shall not, however, apply to: (a) Actions brought by Association to enforce the provIsIOns of the Association Documents including, without limitation, the foreclosure of liens); (b) The imposition and collection of Assessments as provided in this Declaration; (c) Proceedings involving challenges to ad valorem taxation; (d) Counterclaims brought by Association in proceedings instituted against it. This Section 11 shall not be amended unless the prior written approval of Declarant is obtained, which may be granted or denied in its sole discretion. ARTICLE XIII MORTGAGEES' RIGHTS The following provisions are' for the benefit of holders, insurers, or guarantors of first mortgages on Parcels in the Properties. To the extent applicable, necessary, or proper, the provisions of this Article XIII apply to both this Declaration and to the By-Laws of the Association. Where indicated, these provisions apply only to "eligible holders," as hereinafter defined; provided, however, voting percentages set forth herein are subject to and controlled by higher percentage requirements, if any, set forth elsewhere in this Declaration for specific actions. SECTION 1. Notices of Action. An institutional holder, insurer, or guarantor of a first mortgage, who provides written request to the Association (such request to state the name and address of such holder, insurer, or guarantor and the unit number), therefore becoming an "eligible holder", will be entitled to timely written notice of: (a) any proposed termination of the Association; (b) any condemnation loss or any casualty loss which affects a material portion of the Properties or which affects any Parcel on which there is a first mortgage held, insured, or guaranteed by such eligible holder; (c) any delinquency in the payment of assessments or charges owned by an Owner of a Parcel subject to the mortgage of such eligible 22 holder, insurer, or guarantor, where such delinquency has continued for a period of sixty (60) days. (d) any lapse, cancellation, or material modification of any insurance policy or fidelity bond maintained by the Association. First mortgagees may, jointly or singly, pay taxes or other charges which are in default and which mayor have become a charge against the Common Areas and may pay overdue premiums on casualty insurance policies, or secure new casualty insurance coverage upon the lapse of a policy, for the Common Areas, and first mortgagees making such payments shall be entitled to immediate reimbursement from the Association. ARTICLE XIV ADDITIONAL MATTERS SECTION 1. Modification. The development and marketing, of the Properties will continue as deemed appropriate in Declarant's sole discretion, its designated successors and assigns, and nothing in this Declaration, or otherwise, shall be construed to limit or restrict such development and marketing. It may be necessary or convenient for the development of the Properties to, as an example and not a limitation, amend a plat and/ or the master development plan for the Properties, modify the boundary lines of the Common Areas, grant easements, dedications, agreements, licenses, restrictions, reservations, covenants, rights-of-way, and to take- such other actions which Declarant, or its agents, affiliates, or assignees may deem necessary or appropriate. SECTION 2. Additional Development. If Declarant withdraws portions of the Properties from the operation of this Declaration, Declarant may, but is not required to, subject to govemmental approvals, create other forms of property ownership or other improvements of any nature on the Properties not subjected to or withdrawn from the operation of this Declaration. Declarant shall not be liable or responsible to any person or entity on account of its decision to do so or to provide, or fail to provide, the amenities and/ or facilities which were originally planned to be included in such areas. If so designated by Declarant, owners or tenants of such other forms of improvements upon their creation, may share in the use of all or some of the Common Areas and other facilities and/or roadways which remain subject to this Declaration. The expense of the operation of such facilities shall be allocated to the various users thereof, if at all, as determined by Declarant. SECTION 3. Representations. Declarant makes no representations conceming development both within the boundaries of the Properties including, but not limited to, the number, design boundaries configuration and arrangements, prices of all Parcels and buildings in all other proposed forms of ownership and/ or other improvements on the Properties or in the Properties or 23 adjacent or near the Properties, including, but not limited to, the size, locations, configuration, elevations, design, building materials, height, view, airspace, number of buildings, location of easements, parking and landscaped areas, services and amenities offered. Declarant has and will convey portions of the Properties to independent builders, developers and other persons or entities. Declarant is not a guarantor of the performance of such builders, developers and other person or entities and shall only be liable for actions or inaction it actually takes or fails to take and not for the performance or nonperformance of others. Declarant is not a venturer, co-venturer, partner, principal, agent or guarantor of such builders, developers of other persons or entities, who may own, manage, develop, sell, lease property or provide services within the Properties, except to the extent that Declarant has entered into an express agreement in which such status is expressly assumed by Declarant. Further, Declarant is selling property within the Properties based on criteria which Declarant, in its sole discretion, deems appropriate. Each Owner, by virtue of acceptance of title to his Parcel and each other person having an interest or lien upon, or making any use of all or any portion of the Properties, or services provided therein, shall exercise its own judgment as to whether to deal, use or rely upon such builder, developer or other person or entity, and shall not rely upon the judgment of Declarant. Declarant undertakes only such obligations to which it expressly committed to do so by written instrument intended to be binding, on Declarant. Oral representations shall not be relied upon. Each Owner, by acceptance of title to a Parcel and each other person having an interest in or lien upon, or making any use of any portion of the Properties (by virtue of accepting such interest or making such use) shall be bound by this Article XIV, Section 3 and shall be deemed to have automatically waived any and all rights, claims, demands and causes of action against Declarant arising from or connected with any matter for which the liability of Declarant has been disclaimed in this Article XIV, Section 3. SECTION 4. Non-Liability. Notwithstanding anything to the contrary in the Association Documents, Association 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 Properties including, without limitation, Owners and their guests, lessees, licensees, invitees, agents, servants, contractors, and/ 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 Association and which govem or regulate the uses of the Properties have been written, and are to be interpreted and enforced for the sole purpose 24 of enhancing and maintaining the enjoyment of the Properties and the value thereof; and B. Association is not empowered, and has not been created, to act as an agency which enforces or ensures the compliance with the laws of the State of Florida and/ or Palm Beach County, Florida, or prevents tortious activities; and C. The provisions of the Association Documents setting forth the uses of Assessments which relate to health, safety and welfare shall be interpreted and applied only as limitations on the uses of Assessment funds and not as creating a duty of the Association to protect or further the health, safety, or welfare of any person(s), even if Assessment funds are chosen to be used for any such reason. Each Owner (by virtue of his acceptance of a deed of conveyance to any portion of the Properties) and each other person having an interest in or lien upon, or making a use of, any portion of the Properties (by virtue of accepting such interest or lien or making such use) shall be bound by this Section 4 and shall be deemed to have automatically waived any and all rights, claims, demands and causes of action against Association arising from or connected with any matter for which the liability of the Association has been disclaimed in this Section or otherwise. As used in this Section, "Association" shall include within its meaning all of Association's directors, officers, committee and board members, employees, agents, contractors (including management companies subcontractors, successors and assigns). Section 5. Waiver of Trial by Jury and Release. By acceptance of a deed, each Owner knowingly, voluntarily, and intentionally waives any right he / she may have to a trial by jury of any claim, demand, action or cause of action, with respect to any action, proceeding, claim, counterclaim or cross claim, whether in contract and/or in tort (regardless if the tort action is presently recognized or not), based on, arising out of, in connection with or in any way related to Association Documents, including any course of conduct course of dealing verbal or written statement, validation, protection, enforcement action or omission of any party. Declarant hereby suggests that each Owner understand the legal consequences of accepting a deed to any portion of the Properties. As a further material inducement for Declarant to subject the Properties to this Declaration, each Owner does hereby release, waive, discharge, covenant not to sue, acquit, satisfy and forever discharge Declarant, its officers, directors, employees and agents and its affiliates and assigns from any and all liability claims, counterclaims, defenses, actions, causes of action, suits, controversies, agreements, promises and demands whatsoever in law or in equity which an Owner may have in the future, or which any personal representative, successors, heir or assign of Owner hereafter can, shall or may have against Declarant, its respective, officers, directors, employees, limited and general partners and agents, and its affiliates 25 and assigns, for, upon or by reason of any matter, cause this release and waiver is intended to be as broad and inclusive as permitted by the laws of the State of Florida. SECTION 6. Duration of Rights. The rights of Declarant set forth in this Declaration shall, unless specifically provided to the contrary herein, extend for a period of time ending upon the earlier of (a) when neither Declarant nor any affiliate of Declarant has any further interest of any kind in the Properties; or (b) a relinquishment by Declarant in an amendment to the Declaration placed in the Public Records. SECTION 7. Matters with regard to the Properties. Declarant reserves to itself, its successors and assigns, any and all rights to amend the master development plan for the Properties, without the joinder and consent of any party. Further, Declarant reserves to itself, its successors and assigns, the rights as developer of the Properties to make modifications thereto without the joinder and consent of any party. Declarant reserves the right to assign to Association, and Association shall assume, all or any obligations of Declarant under the master development plan for the Properties. SECTION 8. Transfer of Rights. Any or all of the special rights and obligations of the Declarant may be transferred to other persons or entities, in whole or in part, provided that the transfer shall not redu~e an obligation nor enlarge a right beyond that contained herein, and provided further, no such transfer shall be effective unless it is in a written instrument signed by the Declarant and duly recorded in the Public Records. SECTION 9. Use of Common Areas and Other Portions of the Properties. Notwithstanding any provisions contained in the Declaration to the contrary, so long as Declarant, in its sole judgment, deem it necessary, it shall be expressly permissible for Declarant to maintain and carry on upon portions of the Common Areas such facilities and activities as, in the sole respective opinions of Declarant, its designated successors and assigns, may be reasonably required, convenient, or incidental to the construction or sale of such lands subject to this Declaration and Parcels, including, but not limited to, business offices, signs, model units, and sales offices, and the Declarant shall have an easement for access to such facilities. The right to maintain and carry on such facilities and activities shall include specifically the right to use land owned by the Declarant, its designated successors and assigns, if any, as a site for models and sales offices. Further, Declarant reserves for itself, its successors and assigns, at any time, whether or not Declarant still owns lands subject to this Declaration, the right to enter on the Properties for the purpose of performance of corrective work, maintenance, repair or replacement of any item of work for which a permit was issued in the name of Declarant, its successors or assigns. 26 IN WITNESS WHEREOF, the undersigned Declarant has executed this Declaration this _ day of , 1999. WALTER H. JANKE Witness: Print Name: Date: Witness: Print Name: Date: Print Name: ALICE FAY Witness: Print Name: Date: Print Name: STATE OF FLORIDA COUNTY OF The foregoing instrument was acknowledged before me this _ day of 1999, by WALTER H. JANKE, who produced as identification and who did (did not) take an oath. My Commission Expires: NOTARY PUBLIC, STATE OF FLORIDA PRINT NAME: 27 STATE OF FLORIDA COUNTY OF The foregoing instrument was acknowledged before me this _ day of 1999, by ALICE FAY, who produced as identification and who did (did not) take an oath. My Commission Expires: NOTARY PUBLIC, STATE OF FLORIDA PRINT NAME: Witness: Print Name: Witness: Print Name: STATE OF FLORIDA COUNTY OF The foregoing instrument was acknowledged before me this _ day of 1999, by , as of , a Florida corporation, on behalf of the corporation, who produced as identification and who did (did not) take an oath. My Commission Expires: NOTARY PUBLIC, STATE OF FLORIDA PRINT NAME: FTL1 #141790 v2 28