HomeMy WebLinkAboutItem #05 Approval of Joinder and Consent to Amended and Restated Master Declaration - Wesmere Cove
I FOLEY
AGENDA ITEM COVER SHEET
Meeting Date: January 15, 2008
Item # 5
Contact Name:
Contact Number:
Paul E. Rosenthal,
City Attorney
407 -423-7656
Reviewed By:
Department Director:
City Manager:
Mk~
Subject: Amended and Restated Master Declaration of Covenants and Restrictions for Wesmere Cove
Background Summary:
Lake Butler Professional Center, LLC, Wesmere Development, LLC, and Morrison Homes, Inc. (collectively,
the "Applicant") have requested that the City consent to an Amended and Restated Master Declaration of
Covenants and Restrictions for Wesmere Cove (the "Restated Declaration"). The main purposes of the
Restated Declaration are to: (1) combine into one document the prior recorded Declaration for the Wesmere
Property and several subsequent amendments thereto, (2) clarify the financial obligations of the owners of
the "Multifamily Parcel" and the "Commercial Parcel" related to common area expenses, and (3) simplify the
membership and voting structure of master property owners association. In addition, the Restated
Declaration utilizes platted lot and tract legal descriptions for the subject property in lieu of the metes and
bounds legal descriptions that were previously used. The Restated Declaration contains all of the standard
provisions that the City required in connection with the City's approval of the Villages of Wesmere Plat.
Issue:
Should the Mayor and City Commissioners consent to the Amended and Restated Master Declaration of
Covenants and Restrictions for Wesmere Cove?
Recommendation:
Staff respectfully recommends that the Mayor and City Commissioners consent to the Amended and
Restated Master Declaration of Covenants and Restrictions for Wesmere Cove and authorize the Mayor and
City Clerk to execute a Joinder and Consent to the Restated Declaration, as requested by the Applicant.
Attachment:
Amended and Restated Master Declaration of Covenants and Restrictions for Wesmere Cove.
Financial Impact:
N/A
Type of Item:
D Public Hearing
D Ordinance First Reading
D Ordinance Second Reading
D Resolution
[gI Commission Approval
D Discussion & Direction
For Clerk's DeDt Use:
D Consent Agenda
D Public Hearing
D Regular Agenda
D Original Document/Contract Attached for Execution by City Clerk
[gI Original Document/Contract Held by Department for Execution
Reviewed by City Attorney
Reviewed by Finance Dept.
o N/A
IZI N/A
: FOLEY
FOLEY & LARDNER LLP
ATTORNEYS AT LAW
MEMORANDUM
STAFF REPORT
TO:
The Honorable Mayor and City Commissioners of the City of Ocoee
FROM:
Nicholas N. Palmer, Assistant City Attorney
THROUGH: Paul E. Rosenthal, City Attorney
DATE:
January 8, 2008
RE:
Joinder and Consent to Amended and Restated Master Declaration of Covenants and
Restrictions for Wesmere Cove
ISSUE:
Should the Mayor and City Commissioners consent to the Amended and Restated Master Declaration of
Covenants and Restrictions for Wesmere Cove?
DISCUSSION:
Lake Butler Professional Center, LLC, Wesmere Development, LLC, and Morrison Homes, Inc.
(collectively, the "Applicant") have requested that the City consent to an Amended and Restated Master
Declaration of Covenants and Restrictions for Wesmere Cove (the "Restated Declaration"). The main
purposes of the Restated Declaration are to: (I) combine into one document the prior recorded
Declaration for the Wesmere Property and several subsequent amendments thereto, (2) clarify the
financial obligations of the owners of the "Multifamily Parcel" and the "Commercial Parcel" related to
common area expenses, and (3) simplify the membership and voting structure of master property owners
association. In addition, the Restated Declaration utilizes platted lot and tract legal descriptions for the
subject property in lieu of the metes and bounds legal descriptions that were previously used. The
Restated Declaration contains all of the standard provisions that the City required in connection with the
City's approval of the Villages ofWesmere Plat.
STAFF RECOMMENDATION:
Staff respectfully recommends that the Mayor and City Commissioners consent to the Amended and
Restated Master Declaration of Covenants and Restrictions for Wesmere Cove and authorize the Mayor
and City Clerk to execute a Joinder and Consent to the Restated Declaration, as requested by the
Applicant.
ATTACHMENTS:
Amended and Restated Master Declaration of Covenants and Restrictions for Wesmere Cove.
ORLA_635976.1
Return to: (enclose self-addressed stamped envelope)
Jill Miller, Esq.
Ruden, McClosky, Smith,
Schuster & Russell, P.A.
200 East Broward Boulevard
15th Floor
Fort Lauderdale, FL 33301
This Instrument Prepared by:
Jill Miller, Esq.
Ruden, McClosky, Smith,
Schuster & Russell, P.A.
200 East Broward Boulevard
15th Floor
Fort Lauderdale, FL 33301
SPACE ABOVE THIS LINE FOR PROCESSING DATA
SPACE ABOVE THIS LINE FOR PROCESSING DATA
AMENDED AND RESTATED
MASTER DECLARATION OF COVENANTS AND
RESTRICTIONS FOR WESMERE COVE
THIS AMENDED AND RESTATED MASTER DECLARATION OF COVENANTS
AND RESTRICTIONS FOR WESMERE COVE ("Master Declaration") is made this
day of , 200_ by and is made to the Declaration of Covenants, and Restrictions for
Wesmere Cove as recorded on October 21,2004, in Official Records Book 07669, Page 0083, as
amended by that First Amendment to Declaration of Covenants and Restrictions for Wesmere
Cove recorded on June 7, 2005, in Official Records Book 08004, Page 4801, and as amended by
the Second Amendment to Declaration of Covenants and Restrictions for Wesmere Cove
recorded in Official Records Book 9422, Page 3754, all of the Public Records of Orange County,
Florida, (collectively the "Original Declaration"), by LAKE BUTLER PROFESSIONAL
CENTER, LLC, a Florida limited liability company ("Master Declarant") whose address is
17160 Royal Palm Blvd., Suite 2, Weston, Florida 33326 as the successor to Original Declarant
(as hereinafter defined) pursuant to that certain Assignment of Declarant's Rights recorded in
Official Records Book 9372, Page 2056 of the Public Records of Orange County, Florida and
joined in by WESMERE DEVELOPMENT, LLC, a Florida limited liability company
("Wesmere") whose address is 61 West Colonial Drive, Orlando, Florida 32801 and joined in by
MORRISON HOMES, INC., a Delaware corporation ("Morrison") whose address is 151
Southhall Lane, Suite 200, Maitland, Florida 32751.
WHEREAS, SOUTHEASTERN DEVELOPMENT LANDS WESMERE
MUL TIF AMIL Y, L.L.c., a Florida limited liability company ("Multifamily"),
SOUTHEASTERN DEVELOPMENT LANDS WESMERE COMMERCIAL, L.L.C., a Florida
limited liability company ("Commercial") and WESMERE COVE PARTNERS, L TD, a Florida
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limited partnership ("Partners") (Multifamily, Commercial and Partners are hereinafter referred to
collectively as the "Original Declarant") made and executed the Original Declaration; and
WHEREAS, Multifamily conveyed to Wesmere certain property encumbered by the
Original Declaration by Special Warranty Deed recorded in Official Records Book 8004, Page
4824, of the Public Records of Orange County, Florida; and
WHEREAS, Commercial conveyed to Master Declarant certain property encumbered by
the Original Declaration by four deeds recorded in Official Records Book 9372, Page 2024,
Official Records Book 9372, Page 2029, Official Records Book 9372, Page 2034, and Official
Records Book 9372, Page 2039, all of the Public Records of Orange County, Florida; and
WHEREAS, pursuant to Article IX, Section (1) of the Original Declaration, Master
Declarant, with the joinder and consent of Wesmere, Morrison and the School Board of Orange
County, Florida (hereinafter defined as the "School Parcel Owner") desires to amend and restate
the Original Declaration in its entirety and upon the recording of this Master Declaration in the
Public Records of Orange County, Florida, the Original Declaration and all Exhibits thereto shall
be superseded by this Master Declaration and Exhibits hereto, and the Original Declaration and
Exhibits thereto shall have no further force or effect, in order to comply with conditions imposed
. by the City of Ocoee and to clarify certain obligations of the Master Association (as hereinafter
defined).
NOW THEREFORE, in consideration of the premises and covenants herein contained,
the Original Declaration is hereby amended, restated, replaced and superseded in its entirety, and
this Master Declaration is substituted in its place, such that all the property legally described on
Exhibits "A," "B," "c" and "D" to this Master Declaration (collectively, the "Property") shall
hereafter be owned, held, used, transferred, sold, conveyed, demised and occupied subject to the
covenants, restrictions, easements, reservations, regulations, burdens and liens hereinafter set
forth, all of which shall run with the Property and any part thereof and which shall be binding
upon all parties having any right, title or interest in the Property or any part thereof, their heirs,
successors, assigns and lessees.
ARTICLE I
DEFINITIONS
The terms used in this Master Declaration shall be defined as set forth herein unless
expressly provided otherwise.
Section 1. "AREAS OF COMMON RESPONSIBILITY" shall mean those areas, if any,
which by contract, agreement or as set forth in this Master Declaration are or hereafter become
the maintenance responsibility in whole or in part, of the Master Association. In addition, any
public rights-of-way abutting the Property may (at the election of the Board (as defined below))
be deemed to be part of the Areas of Common Responsibility.
Section 1. "ARTICLES" shall mean the Amended and Restated Articles of Incorporation of
the Master Association filed in the Office of the Secretary of State of the State of Florida, a true
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copy of which is attached hereto as Exhibit "E," and incorporated herein by this reference, as such
Articles may be amended from time to time.
Section 2. "ASSESSMENT" shall mean assessments for which all Owners are obligated to
pay to the Master Association and include "Regular Assessments" and "Special Assessments" (as
such terms are defined in Article VI hereof), and any and all other assessments which are levied
by the Master Association in accordance with the Master Documents.
Section 3.
"BOARD" shall mean the governing body of the Master Association.
Section 4. "BYLAWS" shall mean the Amended and Restated Bylaws of the Master
Association, which have been or will be adopted by the Board, a copy of which are attached
hereto as Exhibit "F" and incorporated herein by this reference, as such Bylaws may be amended
from time to time.
Section 5.
"CITY" shall mean the City of Ocoee, Florida.
Section 6. "COMMERCIAL PARCEL" shall mean and refer to the real property owned by
the "Commercial Parcel Owner" which is described on attached Exhibit "A," incorporated herein
by reference.
Section 7. "COMMERCIAL PARCEL OWNER" shall mean and refer to the owner or
owners, collectively, of all or a portion of the Commercial Parcel. In the event there is one or
more declarations of condominium recorded with respect to the Commercial Parcel, the
condominium association(s) formed to operate and administer the condominium(s) created
thereon shall be deemed the Commercial Parcel Owner for the purposes set forth in this Master
Declaration.
Section 8. "COMMON EXPENSES" shall mean the expenses for which Owners are liable to
the Master Association as described in this Master Declaration and include, but are not limited to,
the costs of maintaining the Master Association Property and the "Surface Water and Stormwater
Management System" and the costs and expenses incurred by the Master Association in
administering, managing, operating, maintaining, financing, or repairing, reconstructing,
replacing or improving, the Master Association Property or any portion thereof or the Surface
Water and Stormwater Management System or any portion thereof and all costs and expenses
incurred by the Master Association in carrying out its powers and duties hereunder or under any
other Master Documents.
Section 9. "COUNTY" shall mean Orange County, Florida.
Section 10. "DIRECTOR" shall mean a member of the Board.
Section 11. "DISTRICT" shall mean the St. John's River Water Management District.
Section 12. "IMPROVEMENT" shall mean all structures or artificially created conditions and
appurtenances thereto of every type and kind located within the Property, including, but not
limited to, walkways, berms, sprinkler pipes, landscaping, hedges, plantings and signs.
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Section 13. "INSTITUTIONAL MORTGAGE" shall mean a mortgage held by an Institutional
Mortgagee on any portion of the Property.
Section 14. "INSTITUTIONAL MORTGAGEE" or "INSTITUTIONAL LENDER" shall
mean any lending institution holding a first mortgage lien or mortgage backed security on any
portion of the Property or having a first lien on a Parcel or any portion thereof, including but not
limited to a lot or condominium unit, and including any of the following institutions: an insurance
company or subsidiary thereof, a federal or state savings and loan association, a federal or state
building and loan association, the Federal National Mortgage Association, the Federal Home
Loan Mortgage Corporation, a federal or state banking association, a real estate investment trust,
any mortgage banking company authorized to do business in the State of Florida, the Master
Declarant or Wesmere (with respect to any purchase money mortgage held by either of them) or
any and all investing or lending institutions ("Lender") which have loaned money to Master
Declarant or Wesmere in order to enable Master Declarant or Wesmere to acquire, or construct
improvements upon, any portion of the Property and which holds a first mortgage upon such
portion of the Property as security for such loan.
Section 15. "INTEREST" shall mean the maximum nonusurious interest rate allowed by law
on the subject debt or obligation, and if no such rate is designated by law, then eighteen percent
(18%) per annum.
Section 16. "LEGAL FEES" shall mean (i) all fees for attorney and paralegal services incurred
in connection with negotiations, mediation, arbitration, litigation or preparation for same, whether
or not such an action is actually begun, through and including all trial and appellate levels and
post-judgment or collection proceedings; and (ii) all costs incurred with respect to the matters set
forth in (i) above.
Section 17. "LISTED MORTGAGEE" means the holder, insurer, or guarantor of a first
mortgage encumbering any portion of the Property of which the Master Association has been
notified pursuant to Article X. Section 16 hereof.
Section 18. "MASTER ASSOCIATION" shall mean WESMERE COVE PROPERTY
OWNERS ASSOCIATION, INC., a not-for-profit Florida corporation, its successors and assigns,
existing pursuant to the Articles of Incorporation, filed in the Office of the Secretary of State of
the State of Florida on October 4, 2004, as amended and restated by that certain Amended and
Restated Articles of Incorporation filed in the Office of the Secretary of State of the State of
Florida on December _, 200_ and by any amendments thereto, and which association is
responsible for the maintenance, preservation and control of the Master Association Property and
the Surface Water Stormwater Management System as provided in this Master Declaration and
having among its members all owners of fee simple title to a Parcel or any portion thereof,
including but not limited to Owners of a lot or condominium unit, and such Owners shall be
deemed Members of the Master Association notwithstanding that a condominium association or
homeowners' association is deemed to be the Owner of a Parcel pursuant to this Master
Declaration.
Section 19. "MASTER ASSOCIATION PROPERTY" shall mean Tracts "0," "Q," "R" and
"T" of the Plat, including any areas within a Parcel, if any, which are to be maintained by the
Master Association in accordance with Article II hereof, except those areas dedicated to the
public by the Plat or other dedication, as set forth in this Master Declaration or on the Plat or
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other dedication, for the common use and enjoyment of the Owners within the Property, together
with landscaping and any other Improvements thereon, including, without limitation, all of the
following if and to the extent located thereon: all structures, open spaces, sidewalks, irrigation
facilities, but specifically excluding any public utility installations thereon and any other property
of the Master Declarant not intended to be made Master Association Property. The Master
Association Property is legally described on Exhibit "D" attached hereto and made a part hereof.
Section 20. "MASTER DECLARANT" shall mean Lake Butler Professional Center, LLC, a
Florida limited liability company, as the successor to Original Declarant, its affiliated entities and
any successor or assign thereof to which Lake Butler Professional Center, LLC specifically
assigns all or part of the rights of the Master Declarant hereunder by an express written
assignment, whether recorded in the Public Records of the County or not. The written assignment
may give notice as to which rights of the Master Declarant are to be exercised and as to which
portion of the Property. In any event, any subsequent master declarant shall not be liable for any
default or obligations incurred by any prior master declarant, except as may be expressly assumed
by the subsequent master declarant. An Owner shall not, solely by the purchase of a Parcel or a
portion thereof, be deemed a successor or assign of the Master Declarant under the Master
Documents unless such Owner is specifically so designated as a successor or assign of such rights
in the instrument of conveyance or any other instrument executed by the Master Declarant.
Section 21. "MASTER DECLARATION" shall mean this instrument as it may be amended
from time to time, together with any Amendment(s) hereto, which may be recorded amongst the
Public Records.
Section 22. "MASTER DOCUMENTS" means this Master Declaration, the Articles and
Bylaws of the Master Association, the Plat and all of the instruments and documents referred to
therein and executed in connection therewith, and any amendments to any of the documents
thereto.
Section 23. "MEMBERS" shall mean all of the Owners who are members of the Master
Association as hereinafter provided (including, without limitation, Master Declarant). Members
shall not have the right to vote in the Master Association; however, Members shall have
representation on the Board as set forth in this Master Declaration and in the Articles.
Section 24. "MUL TIF AMIL Y PARCEL" shall mean and refer to the real property owned by
the Multifamily Parcel Owner which is described on attached Exhibit "B," incorporated herein by
reference.
Section 25. "MULTIFAMIL Y PARCEL OWNER" shall mean and refer to the owner or
owners, collectively, of the Multifamily Parcel. In the event there is one or more Sub-
Associations formed to administer and operate the Multifamily Parcel, the Sub-Associations,
collectively, if more than one, shall be deemed the Owner of the portion of the Multifamily Parcel
that it is to administer pursuant to a recorded declaration of covenants and restrictions, for the
purposes set forth in this Master Declaration, upon the recording of a declaration of covenants and
restrictions encumbering the Multifamily Parcel or portion thereof.
Section 26. "OWNER" shall mean the record owner, whether one or more persons or entities,
of the fee simple title to any Parcel or portion thereof within the Property, and includes the Master
Declarant for as long as the Master Declarant owns fee simple title to a Parcel or a portion
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thereof, but excluding therefrom those having such interest as security for the performance of an
obligation. In the event the Multifamily Parcel or the Commercial Parcel, as applicable, is owned
by more than one (1) person or entity, the Owners of the Multifamily Parcel or the Commercial
Parcel, as applicable, shall among themselves appoint the director or directors, as applicable, to
the Board (as set forth in Article IV ofthis Master Declaration) unless any Sub-Association shall
have such right as set forth in any declaration of covenants and restrictions governing the
Multifamily Parcel or the Commercial Parcel, as applicable.
Section 27. "PARCEL" shall mean one (1) of three (3) portions of the Property referred to as
the Commercial Parcel, the Multifamily Parcel and the School Parcel.
Section 28. "PLAT" shall mean the Villages of Wesmere Plat as recorded in Plat Book 70, at
Page 9 of the Public Records of the County.
Section 29. "PROPERTY" shall mean the real property submitted to this Master Declaration;
which is legally described on Exhibits "A," "B," "C" and "D" attached hereto and made a part
hereof.
Section 30. "SCHOOL PARCEL" shall mean and refer to the real property owned by the
School Parcel Owner which is described on attached Exhibit "C," incorporated herein by
reference.
Section 31. "SCHOOL PARCEL OWNER" shall mean and refer to the School Board of
Orange County, Florida.
Section 32. "SUB-ASSOCIATION" shall mean any association created or to be created to
administer a Parcel or a portion of a Parcel and common areas or common elements lying within
such Parcel or portion of such Parcel pursuant to a declaration of condominium or declaration of
covenants and restrictions affecting such Parcel or portion of such Parcel, other than the Master
Association.
Section 33. "SURFACE WATER AND STORMWATER MANAGEMENT SYSTEM" shall
mean all structures, including culverts, pond(s), swales and rock trenches within the Property,
required to drain, collect and convey rainfall runoff from the Property to the water management
system off the Property.
ARTICLE II
DESCRIPTION OF THE PROPERTY
Section 1. GENERAL PLAN OF DEVELOPMENT. The Property encompasses, or will
encompass, the Parcels and Master Association Property, as more particularly defined by this
Master Declaration. The Property declared hereunder is legally described in Exhibits "A," "B,"
"C" and "D" attached hereto. This Master Declaration shall not encumber or govern any property
depicted on the Plat which has been dedicated to the City or County by the Plat, or which property
is subsequently conveyed to the City or County.
Section 2. MASTER ASSOCIATION PROPERTY. The Master Association Property shall
consist of the property designated as Master Association Property in this Master Declaration as
legally described on Exhibit "D" attached hereto and made a part hereof. The Master Association
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Property shall be used for all proper purposes by the Master Association and the Owners/lessees
and their guests and invitees in accordance with the Master Documents. Master Association
Property may not be altered, modified, removed or replaced by Owners/lessees or their guests or
invitees. Any portion of a Parcel which is owned by an Owner but which shall be maintained by
the Master Association in accordance with this Article II shall be referred to herein as Master
Association Property with regard to maintenance only.
The portions of the Property described in this Section 2 shall constitute Master
Association Property and shall be used solely in accordance with the covenants impressed upon
the Master Association Property including, without limitation, the following:
A. Surface Water and Stormwater Management System. The Master
Association shall be responsible for all costs associated with the cleaning, maintenance, repair and
replacement of any portion of the Surface Water and Stormwater Management System designated
as Tract "0" on the Plat and located on the Master Association Property necessary to maintain the
system in its original condition and use. Notwithstanding anything to the contrary in the Permit
or herein contained, any portion of the Surface Water and Stormwater Management System that is
located on a Parcel shall be maintained, repaired and replaced by the Owner of the Parcel. If the
Owner of the Parcel do not perform such maintenance, repairs or replacement, the Master
Association shall have the right to perform same and charge the cost thereof to the Owner of the
Parcel. Such charge shall be a special charge against the Parcel and the Master Association shall
have lien rights as to the special charge in accordance with this Master Declaration.
As of the date of the recording of the Plat, the use of Tract "Q" and its ownership
were unsettled and to facilitate the recording of the Plat, Commercial and Partners delivered deeds
to the lands comprising Tract "Q" of the Plat to the Master Association. As a result of the
foregoing and notwithstanding anything in this Master Declaration or the Articles and Bylaws to
the contrary, the Master Association and the Board shall cause the Master Association, for a
consideration ofTen Dollars ($10.00), to convey by quit claim deed, Tract "Q" of the Plat to such
person(s) or entity(ies) (the "Designee") that is jointly designated in writing to the Master
Association (the "Designation") by (1) Commercial and Partners or by (2) Master Declarant and
Wesmere. The conveyance shall be made within five (5) days following the Designation, time
being of the essence. In no event shall Master Declarant and Wesmere have the obligation to
make the Designation unless Commercial and Partners have requested in writing Master
Declarant and Wesmere to make such Designation. In the event that the joint Designation by
Commercial and Partners to the Master Association or the request by Commercial and Partners to
Master Declarant and Wesmere to make the Designation is not made by July 31, 2008, there shall
be no further obligation on the Master Association, Master Declarant or Wesmere to cause such
conveyance to be made; provided however, the Board will thereafter make such conveyance for
the consideration of Ten Dollars ($10.00) to the Designee upon the Designation of Master
Declarant and Wesmere.
B. Landscaped Areas. The "Landscaped Areas" are designated as Tracts "R"
and "T' on the Plat and are those portions of the Property to be used, kept and maintained as such
by the Master Association, to the extent not used, kept and maintained by the Townhome
Association as provided below, in accordance with the provisions of this Master Declaration. The
Landscaped Areas shall be administered and maintained by the Master Association, to the extent
not used, kept and maintained by the Townhome Association as provided below, in accordance
with the requirements of the appropriate governmental agencies.
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Notwithstanding anything in this Declaration or the Articles or Bylaws of the
Master Association to the contrary, the Board upon a unanimous vote at a duly called meeting of
the Board or upon the unanimous written consent of the Board shall have the right to cause the
Master Association to convey Tracts "R" and "T" to Wesmere Townhome Association, Inc., a
Florida corporation not-for-profit ("Townhome Association"), a Sub-Association, for a
consideration of Ten Dollars ($10.00). The conveyance by the Master Association to the
Townhome Association shall be made by quit claim deed. Regardless of whether Tracts "R" and
"T" are conveyed to the Townhome Association, all costs and expenses to maintain Tracts Rand
T shall be the obligation ofthe Townhome Association.
C. Open Space. The "Open Space" is designated as Tract "Q" on the Plat
and is that portion of the Property to be used, kept and maintained as such by the Master
Association, in accordance with the provisions of this Master Declaration and the Plat. The Open
Space shall be administered and maintained by the Master Association in accordance with the
requirements of the appropriate governmental agencies.
Section 3. COSTS. Except as set forth in Section 2 above, all costs associated with operating,
maintaining, repairing and replacing the Master Association Property shall be the obligation of
the Master Association.
Section 4. PRIVATE USE. For the term of this Master Declaration, except as provided in
this Master Declaration, the Master Association Property is not for the use and enjoyment of the
public, but is expressly reserved for the private use and enjoyment of the Master Declarant, the
Master Association, and the Owners, and their guests, invitees and lessees, but only in accordance
with this Master Declaration.
A. Except to the extent herein provided, the Master Association Property shall
be for the sole and exclusive use of the Owners and occupants of the Property and their guests,
invitees and lessees.
B. Except as otherwise set forth herein, the administration, management,
operation and maintenance of the Master Association Property shall be the responsibility of the
Master Association, as provided herein and in the Master Documents.
C. The right to use the Master Association Property shall be subject to the
rules and regulations established by the Master Association, as amended from time to time.
ARTICLE III
OWNERS' PROPERTY RIGHTS
Section 1. OWNERS' EASEMENTS OF ENJOYMENT. Every Owner and guest, lessee,
agent or invitee of an Owner shall have a permanent and perpetual, nonexclusive easement for
ingress and egress over, enjoyment in, and use of Master Association Property, in common with
all other Owners, their guests, lessees, agents and invitees, which easement shall be appurtenant
to, and shall pass with title to each Owner's Parcel or a portion thereof. This right shall be subject
to the following conditions and limitations:
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A. The right and duty of the Master Association to levy Assessments against
each Parcel for the purpose of maintaining, repairing and replacing the Master Association
Property and the and Stormwater Water Management System and facilities on each, in
compliance with the provisions of this Master Declaration and the restrictions on portions of the
Property from time to time recorded by the Master Declarant.
B. The right of the Master Association to establish uniform rules and
regulations pertaining to the use of the Master Association Property.
C. The right of the Master Association in accordance with its Articles,
Bylaws, and this Master Declaration, to borrow money for the purpose of improving the Master
Association Property and facilities thereon, and, in aid thereof, to mortgage, pledge, or
hypothecate any or all of its real or personal property as security for money borrowed or debts
incurred, provided that the rights of such mortgagee shall be subordinated to the use rights of the
Owners.
D. The right of the Master Association to dedicate, release, alienate, or
transfer all or any part of the Master Association Property to any public agency, authority, or
utility for such purposes and subject to such conditions as may be agreed to by the Master
Association. Except as provided otherwise in this Master Declaration, no such dedication,
release, alienation, or transfer shall be effective unless all the Directors agree to such dedication,
release, alienation or transfer.
E The right of the Master Association to grant and amend easements,
rights-of-way or strips of land, where necessary, for utilities and other services over the Master
Association Property to serve the Master Association Property.
F. The right of the Master Association, by action of the Board, to reconstruct,
replace, or refinish any Improvement or portion thereof upon the Master Association Property or
the Surface Water and Stormwater Management System in accordance with the original design,
finish, or standard of construction of such Improvement.
G The right of the Master Association to replace destroyed trees or other
vegetation and plant trees, shrubs, and ground cover upon any portion of the Master Association
Property .
H. The right, however not the duty, of the Master Association by action of the
Board to seek the vacation of publicly dedicated streets, if any, adjacent to any portion of the
Property .
I The easements provided elsewhere in this Master Declaration and/or
designated on the Plat, including, but not limited to, those set forth in this Article III.
J. The right of the Master Association to provide for the maintenance, repair
and replacement of the Surface Water and Stormwater Management System and the Master
Association Property as set forth in this Master Declaration.
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Section 2. RECOGNITION OF EXISTING EASEMENTS. Each Owner, by acceptance of a
deed or other instrument of conveyance, recognizes and consents to the easements reserved and/or
granted with respect to the Property under this Master Declaration.
Section 3. ACCESS EASEMENT. The Master Declarant hereby reserves perpetual,
nonexclusive easements of ingress and egress over and across any portion of the Property which
are necessary or convenient for enabling the Master Declarant to carry on the work referred to in
this Master Declaration, which easements shall be for the use of the Master Declarant, the Master
Declarant's employees, contractors and agents, the Master Declarant's successors and assigns,
Owners, and the respective lessees, employees, agents, invitees, and licensees of the Master
Declarant and Owners; provided, however, such easements shall also run and be deemed reserved
to the City, the County and the District for such purposes as needed by the City, the County and
the District pursuant to this Master Declaration or governmental permits and approvals.
Section 4. GRANT AND RESERVATION OF EASEMENTS. The Master Declarant hereby
reserves and grants the following perpetual, nonexclusive easements over and across the Property
as covenants running with the Property for the benefit of the Owners and the Master Association
as hereinafter specified for the following purposes; provided none of such easements shall be
located under any buildings or permanent improvements constructed or planned for a Parcel:
A. Utility and Services Easements. All of the Property shall be subject to an
easement or easements to provide for: (i) installation, service, repair and maintenance of the
equipment required to provide utility services to the Master Association Property and the Parcels,
including, but not limited to, power, lights, water, sewer, irrigation and drainage (which
equipment shall be kept underground to the extent same is possible and practical), and (ii)
governmental services, including, but not limited to, police, fire, health, sanitation and other
public service personnel, including reasonable rights of access for persons and equipment
necessary for such purposes for the benefit of the appropriate utility companies, agencies,
franchises or governmental agencies.
B. Easement to Enter Upon Parcels. An easement or easements for ingress
and egress in favor of the Master Association, including the Board or the designee of the Board,
to enter upon the Parcels for the purposes of fulfilling its duties and responsibilities of ownership,
maintenance and/or repair in accordance with the Master Documents, including, by way of
example, the making of such repairs, maintenance or reconstruction as are necessary for the
Master Association Property and the Surface Water and Stormwater Management System.
C. Easement Over Master Association Property. An easement of enjoyment in
favor of all Owners, their guests, invitees and lessees in and to the Master Association Property
which shall be appurtenant to and shall pass with title to every Parcel or portion thereof, subject to
the following:
(1) the right of the Master Association to grant permits, licenses and
easements over the Master Association Property for utilities and other purposes reasonably
necessary or useful for the proper maintenance or operation of the Property; and
(2) all provisions set forth in the Master Documents.
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D. Drainage and Irrigation Easement. An easement for drainage, flowage and
storage of water and irrigation purposes over, under and upon the Property in favor of the Master
Association and each of the Owners, including, but not limited to, reasonable rights of access for
persons and equipment to construct, install, maintain, alter, inspect, remove, relocate and repair
the water drainage system, flowage pipes and irrigation pipes.
E. Surface Water and Stormwater Management System Encroachment
Easement. An easement for encroachment over, under and upon any drainage easements located
within the Property in favor of the Master Association for reasonable rights of access for persons
and equipment to construct, install, maintain, alter, inspect, remove, relocate and repair any
portion of the Surface Water and Stormwater Management System or part thereof installed or
located thereon. In the event the Master Association requires access to any Surface Water and
Stormwater Management System improvements within a drainage easement upon which any
driveway and/or sidewalk or irrigation system encroaches, the. Master Association has the
obligation, at its own cost and expense, to remove and replace any such encroachment, and to
return it to its condition immediately preceding such removal and replacement once access to the
drainage easement is no longer required.
F. Drainage Easements/Drainage and Maintenance Easements. Easements
over, under and upon the Property in favor of the Master Association, the City, the County and
the District for the construction, installation, maintenance, service, repair and replacement of
drainage facilities necessary to provide for the drainage of storm water and for ingress and egress
for the foregoing purposes.
Section 9. EASEMENT FOR MAINTENANCE OF SURFACE WATER AND STORM
WATER MANAGEMENT SYSTEM The Master Association shall have a perpetual, non-
exclusive easement over all portions of the Surface Water and Storm Water Management System
for access to operate, maintain, repair, or replace the Surface Water and Storm Water
Management System. By this easement, the Master Association shall have the right to enter upon
any portion of the Property which is a part of or adjacent to the Surface Water and Storm Water
Management System, at a reasonable time and in a reasonable manner, to operate, maintain,
repair, or replace the Surface Water and Storm Water Management System as the City, the
County, the District or any other governmental agency or quasi-governmental body requires or
permits. No person shall alter the drainage flow of or over the Surface Water and Storm Water
Management System, including buffer areas or swales or any portion of the Surface Water and
Stormwater Management System without the prior written approval of the District.
Section 8. ASSIGNMENTS. The easements reserved hereunder may be assigned by the
Master Association, in whole or in part, to the City, the County, the District or any state
government or agency thereof, or any water management district, or any duly licensed or
franchised public utility. The Owners hereby authorize the Master Association to execute, on
their behalf and without further authorization, such grants of easement or other instruments as
may from time to time be necessary to grant easements over and upon the Master Association
Property or portions thereof in accordance with the provisions of this Master Declaration.
ARTICLE IV
MEMBERSHIP IN THE MASTER ASSOCIATION
BOARD: DURATION OF THE MASTER ASSOCIATION
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Section 1. MEMBERSHIP. Membership in the Master Association shall be established and
terminated as set forth in the Articles. Each Member shall be entitled to the benefit of, and be
subject to, the provisions of the Master Documents. Members shall not have any voting rights or
voting interests in the Master Association. Directors shall be appointed as provided in Section 2
below. Each Owner shall be a Member of the Master Association as provided in the Master
Documents.
Section 2.
VOTING.
A. All Owners of any portion of the Commercial Parcel and the Multifamily
Parcel shall be Members of the Master Association but shall not have any voting rights in the
Master Association. All voting shall be by the Board as set forth in Paragraph B below and in the
Articles. The School Parcel shall not designate any Directors and the School Parcel Owner shall
not be a Member of the Master Association.
B. The Owner(s) of the Multifamily Parcel shall appoint two (2) Directors to
the Board and the Owner(s) of the Commercial Parcel shall appoint one (1) Director to the Board
which Directors shall each have one (1) vote. Directors shall serve at the pleasure of and until
replaced by the Owners entitle to have appointed them. Directors appointed by the Owner(s) of
the Multifamily Parcel can only be replaced or removed by the Owner(s) of the Multifamily
Parcel and the Director appointed by the Owner(s) of the Commercial Parcel can only be replaced
or removed by the Owner(s) of the Commercial Parcel. If the Multifamily Parcel or the
Commercial Parcel is governed in whole or in part by a Sub-Association(s), the Sub-
Association(s) for such Parcel or portions thereof shall represent and act on behalf of all the
Owners of any portion of the Parcel governed by such Sub-Association(s). The decision of who
shall serve as Directors as determined by the Owners of the Multifamily Parcel and the
Commercial Parcel, shall be made outside of the workings or operations of the Master
Association and made in such manner as may be established pursuant to a declaration(s) of
condominium or declaration(s) of covenants and restrictions that may govern the Multifamily
Parcel or Commercial Parcel, as applicable.
Section 3. BOARD. The Master Association shall be governed by the Board which shall be
appointed, designated or elected, as the case may be, as set forth in the Articles. All decisions of
the Master Association shall be made by the Board as the Owners have no voting rights in the
Master Association other than the appointment of Directors to the Board.
Section 4. DURATION OF MASTER ASSOCIATION. The duration of the Master
Association shall be perpetual, as set forth in the Articles.
Section 5. ASSOCIATION IN GOOD STANDING. The Master Association shall at all
times remain and be in good standing with the Florida Secretary of State.
Section 6.
MASTER ASSOCIATION AND SUB-ASSOCIATIONS
A. Preamble. In order to ensure the orderly development, operation and maintenance
of the Property, including the properties subject to the administration of the Sub-Association(s) as
integrated parts of the Property, this Article IV has been promulgated for the purposes of (a)
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giving the Master Association certain powers to effectuate such goal, (b) providing for intended
(but not guaranteed) economies of scale and (c) establishing the framework of the mechanism
through which the foregoing may be accomplished.
B. CUmulative Effect Conflict. The covenants, restrictions and provisions of this
Master Declaration shall be cumulative with those declarations whose enforcement is the charge
of the Sub-Association(s), and the Master Association may, but shall not be required to, enforce
the latter; provided, however, that in the event of conflict between or among such covenants,
restrictions and provisions, or any articles of incorporation, bylaws, rules and regulations, policies
or practices adopted or carried out pursuant thereto, those of the Sub-Association(s) shall be
subject and subordinate to this Master Declaration. The foregoing priorities shall apply, but not
be limited to, the liens for Assessments and special charges created in favor of the Master
Association. As to a Sub-Association, no duties of same hereunder shall be performed or
assumed by the Master Association.
C. Maintenance and Use Restrictions. The Master Association may delegate to a
Sub-Association(s) all or any part of such rights/duties, on an exclusive or non-exclusive basis,
upon written notice recorded in the Public Records of the County.
D. Collection of Assessments. The Sub-Association(s) shall, initially, collect all
Assessments and other sums due the Master Association and the applicable Sub-Association from
the members thereof. The Sub-Association(s) will remit the Assessments so collected to the
respective payees pursuant to such procedures as may be adopted by the Master Association. The
sums so collected shall be applied first to the Assessments of the Master Association and then to
those of the collecting Sub-Association. No sums collected by a Sub-Association on behalf of the
Master Association shall be utilized by the collecting Sub-Association.
Notwithstanding the priority of disbursements of collected lump sums as provided above,
all "Special Assessments" (as hereinafter defined), interest, late charges, recovered costs of
collection and other extraordinary impositions shall be remitted to the respective entity imposing
same separate and apart from the priorities established above.
The Master Association shall notify the Owners of the Multifamily Parcel and the
Commercial Parcel, by written notice given at least thirty (30) days in advance, of any changes in
the amounts of the Assessments due it or the frequency at which they are to be collected. The
aforesaid notice period shall also apply to Special Assessments, but may be as short as five (5)
days before the next due Regular Assessment installment in the case of Special Assessments of
the Master Association. If a Parcel is governed by a Sub-Association(s) notices shall be sent to the
Sub-Association(s) only.
The Master Association may, from time to time by ten (10) days' prior written notice to
the affected Sub-Association(s), change the procedures set forth in this Section 6.D in whole or in
part. Such change may include, without limitation, the assumption by the Master Association of
all or some of the collection functions provided for herein or in the declaration for a Sub-
Association(s) (to which assumption the Sub-Association and its members shall be deemed to
have automatically agreed).
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All fidelity bonds and insurance maintained by a Sub-Association shall reflect any duties
performed by it pursuant hereto and the amounts to be received and disbursed by it and shall
name the Master Association as an obligee/insured party for so long as its Assessments are being
collected and remitted by the Sub-Association.
In the event of any change in Assessment collection procedures elected to be made by the
Master Association, the relative priorities of Assessment remittances and liens shall nevertheless
still remain in effect, as shall the Master Association's ability to modify or revoke its election
from time to time.
E. Acceptance of Delegated Duties. Whenever the Master Association delegates any
duty to a Sub-Association and/or the Owner of a Parcel pursuant to this Master Declaration, the
Sub-Association and/or the Owner of a Parcel shall be deemed to have automatically accepted
same and to have agreed to indemnify, defend and hold harmless the Master Association for all
liabilities, losses, damages and expenses (including Legal Fees actually incurred and court costs,
through all appellate levels) arising from or connected with the Sub-Association's and/or such
Owner's performance, non-performance or negligent performance thereof. All Sub-Associations
and Owners shall be responsible to the Master Association for maintaining adequate liability and
other insurance covering injuries, deaths, losses or damages arising from or connected with the
Sub-Association's and/or Owner's performance or nonperformance of its duties hereunder.
F. Remedies. In the event of a failure of a Sub-Association to budget or assess its
members for Assessments due the Master Association, the Master Association shall be entitled to
pursue all available legal and equitable remedies against the Sub-Association.
G. Non-Performance of Sub-Association Duties. In addition to the specific rights of
the Master Association provided in Section F above, and subject to the limitations set forth in this
Master Declaration, in the event that a Sub-Association fails to perform any duties delegated to,
or required of, it under this Master Declaration or to otherwise be performed by it pursuant to its
own declaration, articles of incorporation, bylaws or related documents, which failure continues
for a period in excess of thirty (30) days after the Master Association's giving notice thereof, then
the Master Association, upon the unanimous vote of the Board, may, but shall not be required to,
assume such duties. In such event, the Sub-Association shall not perform such duties unless and
until such time as the Master Association directs it to once again do so.
H. Conflict. In the event of conflict between this Article IV, as amended from time to
time, and any of the other covenants, restrictions or provisions of this Master Declaration or the
Articles, Bylaws or rules and regulations of the Master Association all as amended from time to
time, the provisions of this Article shall supersede and control.
ARTICLE V
COVENANT TO PAY ASSESSMENTS: ESTABLISHMENT OF LIENS:
COLLECTION OF ASSESSMENTS: COLLECTION BY MASTER ASSOCIA TON AND
INSTITUTIONAL MORTGAGEES
Section 1. AFFIRMATIVE COVENANT TO PAY ASSESSMENTS. In order to: (i) fulfill
the terms, provisions, covenants and conditions contained in the Master Documents; and (ii)
maintain, operate and preserve the Master Association Property and the Surface Water and
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Stormwater Management System for the use, safety, welfare and benefit of the Owners and their
guests, invitees and lessees, there is hereby imposed upon the Commercial Parcel and the
Multifamily Parcel and the Owner(s) of each, the affirmative covenant and obligation to pay to
the Master Association, commencing from the date the Original Declaration was recorded in the
public records of the County, all Assessments, including, but not limited to, the Regular
Assessments and Special Assessments. Each Owner, by acceptance of a deed or other instrument
of conveyance conveying a portion of the Commercial Parcel or the Multifamily Parcel, whether
or not it shall be so expressed in such deed or instrument, shall be obligated and agrees to pay to
the Master Association all Assessments in accordance with the provisions of the Master
Documents.
The following expenses of the Master Association are hereby declared to be
Common Expenses which the Master Association is obligated to assess and collect, and which all
of the Owners of the Commercial Parcel and the Multifamily Parcel are obligated to pay as
provided herein or as may be otherwise provided in the Master Documents: (1) any and all taxes
and tax liens which may be assessed or levied at any and all times against the Master Association
Property or against any and all personal property or Improvements thereon; (2) all charges levied
for utilities providing services for the Master Association Property; (3) the premiums on policies
of insurance including, but not limited to, liability, and directors and officers liability insurance
for the Master Association Property; (4) any sums necessary for the maintenance, and repair and
replacement of the Master Association Property and all Improvements located thereon; (5) any
sums necessary to reimburse the Master Association for any costs or expenses incurred in
connection with maintaining the Master Association Property and the Surface Water Management
System; (6) administrative and operational expenses; (7) any and all expenses incurred in
connection with maintaining Areas of Common Responsibility; and (8) any and all expenses
deemed to be Common Expenses by the unanimous approval of the Board or by this Master
Declaration.
The Common Expenses shall be payable by the Owners of the Commercial Parcel
and the Multifamily Parcel to the Master Association or, if applicable, to his/her/its Sub-
Association which will, in turn, remit to the Master Association notwithstanding the fact that the
Master Declarant may not have as yet conveyed title to the Master Association Property to the
Master Association.
Section 2. EXEMPT PROPERTY. As set forth in the Original Declaration, the School
Parcel shall be exempt from the payment of any Assessments, charges and liens created in this
Master Declaration; provided, however, the School Parcel Owner shall be required to pay the
Master Association an annual maintenance charge equal to One Thousand and 00/100 Dollars
($1,000.00) on or before the first day of October of each year for so long as the Original
Declaration (as modified by this Master Declaration) remains in full force and effect. Except as
set forth in this Section 2, no Parcel shall be exempt from Assessment, charges or liens. Except as
set forth in this Section 2, no Owner may avoid the obligation for the payment of Assessments by
virtue of non-use or abandonment of the Master Association Property or its Parcel or portions
thereof.
Section 3. ESTABLISHMENT OF LIENS. Each Assessment and special charge (as set forth
herein) against the Multifamily Parcel and the Commercial Parcel, together with Interest thereon
and costs of collection, including, but not limited to, Legal Fees, shall be the personal obligation
of the Owners of such Parcel so assessed or charged. Any and all Assessments and special
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charges made by the Master Association in accordance with the prOVlSlons of the Master
Documents with Interest thereon and costs of collection, including, but not limited to, Legal Fees,
are hereby declared to be a charge and continuing lien upon each Parcel against which each such
Assessment is made. Said lien shall be effective only from and after the time of the recordation
amongst the public records of the County of a written, acknowledged statement by the Master
Association setting forth the amount due to the Master Association as of the date the statement is
signed. Upon full payment of all sums secured by that lien, the party making payment shall be
entitled to a satisfaction of the statement of lien in recordable form. Notwithstanding anything to
the contrary herein contained, in the event an Institutional Mortgagee of record obtains title to a
Parcel or a portion thereof as a result of foreclosure of its first mortgage or deed in lieu of
foreclosure, such acquirer of title, its successors or assigns, shall not be liable for the share of
Assessments pertaining to such Parcel or portion thereof or chargeable to the former Owner
thereof which became due prior to the acquisition of title as a result of the foreclosure or deed in
lieu thereof, unless the Assessment against the Parcel in question is secured by a claim of lien for
Assessments that is recorded prior to the recordation of the mortgage which was foreclosed or
with respect to which a deed in lieu of foreclosure was given.
In addition to the foregoing, special charges, together with Interest thereon and costs of
collection thereof, including Legal Fees as hereinafter provided, are also subject to a lien right on
behalf of the Master Association to secure payment thereof and such special charges are hereby
declared to be a charge on each Parcel and shall be a continuing lien upon the Parcel against
which each such special charge is made. Each special charge against a Parcel together with
Interest thereon and costs of collection thereof, including Legal Fees, shall be the personal
obligation of the person, persons, entity and/or entities owning the Parcel so charged. The
Master Association's lien for special charges shall be effective only from and after the time of
recordation amongst the public records of the County of a written acknowledged statement by the
Master Association, as of the date the statement is signed setting forth the description of the
Parcel, the name of the record Owner, the address of the Owner, the amount due to the Master
Association and the due dates. Upon full payment of all sums secured by such lien or liens, the
party making payment shall be entitled to a recordable satisfaction of the statement of lien.
Notwithstanding anything to the contrary herein contained, in the event an Institutional
Mortgagee of record obtains title to a Parcel or a portion thereof as a result of foreclosure of its
first mortgage or deed in lieu of foreclosure, such acquirer of title, its successors or assigns, shall
not be liable for the share of special charges pertaining to such Parcel or portion thereof or
chargeable to the former Owner thereof which became due prior to the acquisition of title as a
result of the foreclosure or deed in lieu thereof, unless the special charge against the Parcel in
question is secured by a claim of lien for special charges that is recorded prior to the recordation
of the mortgage which was foreclosed or with respect to which a deed in lieu of foreclosure was
gIven.
Section 4. COLLECTION OF ASSESSMENTS. In the event the Multifamily
Parcel Owner or the Commercial Parcel Owner shall fail to pay any Assessment or special charge,
or installment thereof, within fifteen (15) days after the same becomes due, then the Master
Association, through its Board, shall have any and all of the following remedies to the extent
permitted by law, which remedies are cumulative and which remedies are not in lieu of, but are in
addition to, all other remedies available to the Master Association:
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1. To accelerate the entire amount of any Assessment or special charge for the
remainder of the calendar year notwithstanding any provisions for the payment thereof in
installments.
2. To advance on behalf of the Owner(s) in default funds to accomplish the
needs of the Master Association up to and including the full amount for which such Owner(s) is
liable to the Master Association and the amount or amounts of monies so advanced, together with
Interest and all costs of collection thereof, including, but not limited to, Legal Fees, may
thereupon be collected by the Master Association from the Owner(s) and such advance by the
Master Association shall not waive the default.
3. To file an action in equity to foreclose its lien at any time after the effective
date thereof as provided in Section 2 hereinabove. The lien may be foreclosed by an action in the
name of the Master Association in like manner as a foreclosure of a mortgage on real property.
4. To file an action at law to collect said Assessment and/or special charge
plus Interest and all costs of collection thereof, including, but not limited to, Legal Fees, without
waiving any lien rights or rights of foreclosure in the Master Association.
5. To charge Interest on such Assessment from the date it becomes due, as
well as a late charge of up to Fifty Dollars ($50.00) to defray additional collection costs.
Section 5. COLLECTION BY MASTER DECLARANT. In the event for any reason a Sub-
Association shall fail to collect the Assessments and remit same to the Master Association, the
Master Declarant and/or the Master Association shall at all times have the right (but not the
obligation): (i) to advance such sums as the applicable Sub-Association could have advanced as
set forth above; and (ii) to collect such Assessments and, if applicable, any such sums advanced
by the Master Declarant and/or the Master Association, together with Interest and costs of
collection, including, but not limited to, Legal Fees.
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Section 6. RIGHTS OF MASTER DECLARANT AND INSTITUTIONAL MORTGAGEES
TO PAY ASSESSMENTS AND RECEIVE REIMBURSEMENT. The Master Declarant and any
Institutional Mortgagee(s) or any individual or entity which has an interest in any Parcel or
portion thereof shall have the right, but not the obligation, jointly or individually, and at their sole
option, to pay any of the Assessments which are in default and which mayor have become a
charge against any Parcel. Further, the Master Declarant and any Institutional Mortgagee shall
have the right, but not the obligation, jointly or individually, and, at their sole option, to pay
insurance premiums or fidelity bond premiums or other required items of Common Expenses on
behalf of the Master Association in the event the same are overdue and when lapses in policies or
services may occur. The Master Declarant and any Institutional Mortgagee paying overdue
Common Expenses on behalf of the Master Association will be entitled to immediate
reimbursement from the Master Association plus Interest and any costs of collection including,
but not limited to, Legal Fees, and the Master Association shall execute an instrument in
recordable form to this effect and deliver the original of such instrument to each Institutional
Mortgagee who is so entitled to reimbursement and to the Master Declarant if the Master
Declarant is entitled to reimbursement.
ARTICLE VI
METHOD OF DETERMINING ASSESSMENTS
AND ALLOCATION OF ASSESSMENTS
Section 1. DETERMINING AMOUNT OF ASSESSMENTS. The total anticipated Common
Expenses for each calendar year shall be set forth in the budget ("Budget") prepared by the Board
as required under the Master Documents. The Budget for each calendar year shall require the
unanimous consent of the Board. The Multifamily Parcel and the Commercial Parcel shall be
assessed its pro rata portion of the total anticipated Common Expenses, which shall be the
"Regular Assessment" as to each Parcel. The pro rata portion of Regular Assessment shall be
78% for the Multifamily Parcel and 22% for the Commercial Parcel and such prorata share shall
be assessed on the whole of the Multifamily Parcel and the Commercial Parcel, as applicable, and
not on portions of each such Parcel.
Section 2. ASSESSMENT PAYMENTS. Regular Assessments shall be payable quarterly, in
advance, on the first day of January, April, July and October of each year. Assessments shall be
paid by each Owner (as more particularly described in Section 1 of this Article VI) directly to the
Master Association or by the Owners to the applicable Sub-Association collecting from such
Owners to pay the Assessments on the Multifamily Parcel or the Commercial Parcel, as
applicable, which will, in turn, remit same to the Master Association.
Section 3. SPECIAL ASSESSMENTS. "Special Assessments" include, in addition to other
Assessments designated as Special Assessments in the Master Documents and whether or not for
a cost or expense which is included within the definition of "Common Expenses," those
Assessments which are levied for capital improvements which include the costs (whether in
whole or in part) of constructing or acquiring Improvements for, or on, the Master Association
Property or the cost (whether in whole or in part) of reconstructing or replacing such
Improvements. Notwithstanding anything to the contrary herein contained, it is recognized and
declared that Special Assessments shall be in addition to, and are not part of, any Regular
Assessment. Any Special Assessments assessed against Parcels and the Owners thereof shall be
paid by such Owners in addition to Regular Assessments and shall be assessed in the same
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manner and in the same proportion as the Regular Assessment. Special Assessments shall be paid
in such installments or in a lump sum as the Board shall, from time to time, determine.
Section 4. LIABILITY OF OWNERS FOR ASSESSMENTS. By the acceptance of a deed or
other instrument of conveyance of a Parcel or a portion thereof, each Owner acknowledges that
each Parcel and all portions thereof and the Owners of all or any portion of such Parcel are jointly
and severally liable for the Regular Assessments, any Special Assessments, and special charges
levied on such Parcel as well as for any and all other Assessments for which they are liable, as
provided for herein. Such Owners further recognize and covenant that they are jointly and
severally liable with the Owners of all Parcels or portions thereof for the Common Expenses
(subject to any specific limitations provided for herein such as, but not limited to, the limitation
with respect to matters of Special Assessment and the limitations on the liability of Institutional
Mortgagees and their successors and assigns). Accordingly, subject to such specific limitations, it
is recognized and agreed by each Owner, for such Owner and such Owner's heirs, executors,
successors and assigns, that in the event any Owner fails or refuses to pay such Owner's Regular
Assessment or any portion thereof, or such Owner's respective portion of any Special Assessment
or any other Assessment, then the other Owners of Parcels and any portions thereof may be
responsible for increased Regular Assessments or Special Assessments or other Assessments due
to the nonpayment by such other Owner, and such increased Regular Assessment or Special
Assessment or other Assessment can and may be enforced by the Master Association and the
Master Declarant in the same manner as all other Assessments hereunder as provided in the
Master Documents.
Section 6. WAIVER OF USE. No Owner may exempt himself, herself or itself from
personal liability for Assessments duly levied by the Master Association. No Owner may release
such Owner's Parcel from the liens and charges hereof either by waiver of the use and enjoyment
of the Master Association Property and the facilities thereon or by abandonment of such Owner's
Parcel or any portion thereof.
Section 7. LEGAL EXPENSES. Notwithstanding anything in the Master Documents to the
contrary, any Assessment for legal expenses incurred by the Master Association for lawsuits shall
be deemed a Common Expense which is properly the subject of Special Assessment and not the
subject of a Regular Assessment so long as approved pursuant to Section 11 of Article X below,
except the Legal Fees incurred by the Master Association in connection with the collection of
Assessments or other charges which Owners are obligated to pay pursuant to the Master
Documents or the enforcement of the use and occupancy restrictions contained in the Master
Documents.
Section 8. CAPITAL IMPROVEMENTS. No capital improvements shall be made by
the Master Association to the Master Association Property or any portion thereof, other than
capital improvements necessary to comply with maintenance responsibilities of the Master
Association under this Master Declaration, without the unanimous consent of the Board.
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ARTICLE VII
MAINTENANCE AND REPAIR OBLIGATIONS
Section 1.
BY THE MASTER ASSOCIATION
A. The Master Association, at its expense, shall be responsible for the
operation, maintenance, repair and replacement of all of the Improvements and facilities located
over, through, and upon the Master Association Property, except public utilities, and except as
otherwise expressly set forth in this Master Declaration.
B. The Master Association shall operate, maintain and repair the Surface
Water and Stormwater Management System constructed over, through and upon the Property in
accordance with Permit No. 40-095-93152-2 issued by the District attached hereto and made a
part hereof as Exhibit "G." The Master Association shall be responsible for all costs associated
with all cleaning, maintenance, repairs and replacement of any portion of the Surface Water and
Stormwater Management System necessary to maintain the system in its original condition and
use. Notwithstanding the foregoing, each Owner of a Parcel shall be responsible for all costs
associated with all cleaning, maintenance, repairs and replacement of any portion of the Surface
Water and Stormwater Management System located on its Parcel. In the event the Owner(s) of a
Parcel do(es) not maintain the portion of the Surface Water and Stormwater Management System
on its/their Parcel, the Master Association shall have the right, but not the obligation, to perform
such maintenance and charge the cost thereof to the Owner(s) of such Parcel as a special charge.
C. To the extent permitted by the appropriate governmental authority, the
Master Association may, but shall not be obligated to, upon the unanimous vote of the Board,
provide maintenance of City properties which are located within the Plat or in reasonable
proximity of the Property, to the extent that its deterioration or unkempt appearance would
adversely affect the appearance of the Property and the cost and expense thereof shall be a
Common Expense.
D. The Master Association shall maintain and care for all Landscaped Areas
encompassed within the Master Association Property. "Maintenance and care" within the
meaning of this Subsection D shall include irrigating, fertilizing, spraying and trimming of
landscaping and grassed areas and replacement of same.
E. The Master Association may make alterations and Improvements to the
Master Association Property with the unanimous approval of the Board.
F. The Master Association shall be responsible for the continued maintenance
of any landscaping and irrigation located within the median or right of way of Tomyn Boulevard
located within the Plat. In addition, the Master Association shall be responsible for the continued
maintenance of any landscaping and irrigation located within any median of Tracts "P" and "s" of
the Plat at such time that such Tracts have been conveyed to, and accepted by the City. All costs
associated with such maintenance shall be a Common Expense and the areas described in this
Paragraph F shall then be Areas of Common Responsibility.
G. All expenses incurred by the Master Association in connection with the
services, maintenance, repair and replacement described in the foregoing Paragraphs A through F,
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inclusive, are Common Expenses, payable by the Owners of the Multifamily Parcel and the
Commercial Parcel under the provisions of this Master Declaration concerning Assessments.
Should the maintenance, repair or replacement provided for in Paragraphs A through F of this
Section 1 be caused by the negligence of or misuse by an Owner, such Owner's guests, servants,
invitees, or lessees, such Owner shall be responsible therefor, and the Master Association shall
have the right to levy a special charge against such Owner's Parcel and said special charge shall
constitute a lien upon the appropriate Parcel with the same force and effect as liens for Common
Expenses.
H. The Master Association has a reasonable right of entry upon any Parcel to
make emergency repairs and to do other work reasonably necessary to carry out its obligations
under this Master Declaration.
Section 2.
BY THE OWNERS OR SUB-ASSOCIATIONS. AS APPLICABLE.
A. Owners or Sub-Associations created to administer a Parcel shall maintain
the Improvements therein, including equipment and appurtenances, and their respective property
(except for those areas maintained by the Master Association) in good order, condition and repair,
and must perform promptly all maintenance and repair work which, if omitted, could adversely
affect the Property, the other Owners or the Master Association and its Members. The Owner or
Sub-Association, as applicable, shall be responsible for any damages caused by a failure to so
maintain such Parcel(s).
B. If an Owner or Sub-Association fails to comply with the foregoing
provisions of this Section 2, the Master Association may proceed in court to compel compliance.
C. The Owners of each Parcel shall be responsible for the continued
maintenance of the landscaping and irrigation located between its Parcel and the curbing or
pavement for Tomyn Boulevard or any other public road.
D. If a failure to comply with the provisions of this Section 2 relates to the
Multifamily Parcel Owner's or the Commercial Parcel Owner's obligation to maintain the
Surface Water and Stormwater Management System on their respective Parcels, then, in addition
to the exercise of all other remedies, the Master Association or the Master Declarant shall have
the right but not the obligation, upon fifteen (15) days written notice, to enter the applicable
Parcel for the purpose of performing the maintenance referred to, set forth and described in the
notice, and to levy on the offending Owner a special charge equal to the cost of performing such
maintenance and any such special charge shall constitute a lien upon the Parcel with the same
force and effect as a lien for Common Expenses. The determination of whether the Multifamily
Parcel Owner or the Commercial Parcel Owner is failing to properly maintain and care for the
property for which it has the maintenance responsibility shall be determined in the sole discretion
of the Master Association or the Master Declarant.
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Section 3.
BY WESMERE
A. Notwithstanding that Wesmere was not an Original Declarant and is not the
Master Declarant, Wesmere shall be responsible for construction of and bond obligations with
respect to Tract 0 and the Surface Water and Stormwater Management System as set forth herein.
B. Notwithstanding the conveyance of the Surface Water and Stormwater
Management System to the Master Association by Original Declarant or Master Declarant,
Wesmere shall be responsible for the maintenance of the Surface Water and Stormwater
Management System until such time as: (i) the Surface Water and Stormwater Management
System is constructed and appropriate certificates of completion are issued by both the City and
the District, (ii) those portions of the Surface Water and Stormwater Management System
intended to be conveyed to the Master Association have in fact been conveyed to the Master
Association, (iii) the Master Association is designated as the maintenance entity on the records of
the District and all transfer records required by the District have been executed and accepted by
the District, (iv) the City has been provided with a copy ofWesmere's proposed maintenance plan
with respect to the Surface Water and Stormwater Management System, and (v) the City has been
provided with a written statement from the Master Association acknowledging receipt of
Wesmere's proposed plan with respect to the Surface Water and Stormwater Management System
and that the Master Association is responsible for the maintenance of the Surface Water and
Stormwater Management System.
Wesmere shall deliver to the Board, the maintenance plan for the Surface
Water and Stormwater Management System accompanied by an engineer's certification that the
Surface Water and Stormwater Management System is functioning in accordance with all
approved plans and permits. To the extent that any such engineer's report indicates any corrective
action is required to the Surface Water and Stormwater Management System, Wesmere shall be
required to diligently undertake such corrective action at Wesmere's expense and Wesmere shall
post a cash bond with the Master Association for the estimated costs of such corrective action.
The City has the right, but not the obligation, to maintain and repair the Surface
Water and Stormwater Management System and obtain reimbursement from the Master
Association or from Wesmere, if Wesmere is still responsible for maintenance of the Surface
Water and Stormwater Management System.
ARTICLE VIII
USE RESTRICTIONS
All of the Property shall be held, used, and enjoyed subject to the following limitations
and restrictions, and any and all additional rules and regulations which may, from time to time, be
adopted by the unanimous vote of the Board.
Section 1. ENFORCEMENT. Failure of an Owner to comply with any limitations or
restrictions in any of the Master Documents or with any rules and regulations promulgated by the
unanimous vote of the Board with respect to the Master Association Property shall be grounds for
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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, the Master Association may levy reasonable fines
against any Owner or any Owner's lessee, guest or invitee for failure of such Owner, or such
Owner's guests, invitees, lessees or employees to comply with any of the Master Documents,
provided the following procedures are adhered to:
A. Notice. The Master Association shall notify the Owner in writing of the
noncompliance and set forth the corrective action to be taken. A fine may not be imposed
without notice of at least fourteen (14) days to the Owner sought to be fined and an opportunity
for a hearing before a special master appointed by the Board or a committee of at least three (3)
individuals appointed by the Board who are not officers, directors, or employees of the Master
Association, or the spouse, parent, child, brother or sister of an officer, director, or employee of
the Master Association. If the committee, by a unanimous vote, does not approve a proposed
fine, it may not be imposed. At the Master Association's option, any fine may be levied on a
daily basis in the event of a continuing violation without the necessity of a new hearing and
without any limitation on the amount of such fine.
B. Hearing. Should the Owner still be in noncompliance, the noncompliance
shall be presented to the Board after which the Board shall hear reasons why a fine should or
should not be imposed. A written decision of the Board, which must be unanimous, shall be
submitted to the Owner, as applicable, not later than twenty-one (21) days after said meeting.
C. Payment. A fine shall be paid not later than thirty (30) days after notice of
the imposition of the fine.
D. Fines. A fine shall be treated as an Assessment subject to the provisions of
the collection of Assessments as otherwise set forth herein, and shall constitute a lien upon the
applicable Parcel with the same force and effect as a lien for Common Expenses. All monies
received from fines shall be allocated as directed by the Board, subject always to the provisions of
this Master Declaration.
E. Failure to Pay Assessments. Notice and Hearing as provided in
Subparagraphs A and B above shall not be required with respect to the imposition of fines upon
any Owner because of such Owner's failure to pay Assessments or other charges when due.
Section 2. NO IMPROPER USE. No unlawful use shall be made of any Parcel. All valid
laws, zoning ordinances and regulations of all governmental bodies having jurisdiction thereover
shall be observed. Violations of laws, orders, rules, regulations or requirements of any
governmental agency having jurisdiction thereover relating to any Parcel shall be corrected by,
and at the sole expense of, the Owner of the Parcel.
Section 3. NO SWMIMMING OR BOATING. Swimming, boating and fishing in the pond
located on Tract 0 is strictly prohibited.
Section 4. INCREASE IN INSURANCE RATES. Owners may not engage in any action
which may reasonably be expected to result in an increase in the rate of any insurance policy
covering any portion of the Master Association Property unless such Owner notifies the Master
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Association of such actions and such Owner bears any increases in the cost of insurance due to
such Owner's actions.
Section 5. SLOPES AND TREES. No Owner may engage in any activity which will change
the slope or drainage of any portion of the Property in violation of any permits, including but not
limited to, the District's permit attached hereto and made a part hereof as Exhibit "G".
Section 6. SIGNS. No sign, display, poster, or other advertising device of any kind
(including, without limitation, signs for the sale or renting of Parcels or any portion of a Parcel,
may be displayed in public view on any portion of the Master Association Property without the
prior written unanimous consent of the Board. Signs required by any governmental or quasi
governmental body shall be exempt from this Section.
Section 7. ENFORCEMENT BY THE DISTRICT. The District shall have the right to
enforce, by a proceeding at law or in equity, the provisions contained in this Master Declaration
which relate to the maintenance and repair of the Surface Water and Stormwater Management
System.
ARTICLE IX
INSURANCE AND CONDEMNATION
The Master Association shall purchase and maintain the following insurance coverages
subject to the following provisions, and the cost of the premiums therefor shall be a part of the
Common Expenses:
Section 1. CASUALTY INSURANCE. Property and casualty insurance for Master
Association Property shall be at the Board's discretion, assuming any such insurance is available.
Section 2. PUBLIC LIABILITY INSURANCE. A comprehensive policy of public liability
insurance naming the Master Association and, until the Master Declarant no longer owns any
Parcel or portion thereof within the Property, the Master Declarant, and if such option is available
without cost, such policy shall also designate the Owners of Parcels and any Sub-Association as
named insureds thereof insuring against any and all claims or demands made by any person or
persons whomsoever for personal injuries or property damage received in connection with, or
arising from, the operation, maintenance and use of the Master Association Property and any
Improvements located thereon, and for any other risks insured against by such policies with limits
of not less than One Million Dollars ($1,000,000.00) for damages incurred or claimed by anyone
person for anyone occurrence; not less than Three Million Dollars ($3,000,000.00) for damages
incurred or claimed by more than one person for anyone occurrence; and for not less than Fifty
Thousand Dollars ($50,000.00) property damage per occurrence with no separate limits stated for
the number of claims. The Master Association may also obtain worker's compensation insurance
and other liability insurance including, but not limited to, insurance for lawsuits related to
employment contracts in which the Master Association is a party, as the Board may deem
desirable.
Section 3. FIDELITY COVERAGE. Adequate fidelity coverage to protect against dishonest
acts of the officers and employees of the Master Association and the Board and all others who
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handle and are responsible for handling funds of the Master Association may be maintained in the
form of fidelity bonds, which requirements shall be reasonably determined by the Board.
Section 4. DIRECTORS' COVERAGE. Adequate directors' and officers' liability coverage,
which coverage shall be effective from and after the date the Master Association is created.
Section 5. OTHER INSURANCE. The Board may obtain such other forms of insurance as
the Board may determine and in such coverage amounts as the Board shall determine to be
required or beneficial for the protection or preservation of the Master Association Property and
any improvements now or hereafter located thereon or in the best interests of the Master
Association and/or its officers and directors and employees.
Section 6. CANCELLATION OR MODIFICATION. All insurance policies purchased by
the Master Association shall provide that they may not be canceled (including for nonpayment of
premiums) or substantially modified without at least ten (10) days prior written notice to the
Master Association and to each first mortgage holder, if any, named in the mortgage clause.
Section 7. CONDEMNATION. In the event the Master Association receives any award or
payment arising from the taking of any Master Association Property or any part thereof as a result
of the exercise of the right of condemnation or eminent domain, the net proceeds thereof shall
first be applied to the restoration of such taken areas and Improvements thereon to the extent
deemed advisable by the Board, and the remaining balance shall be retained by the Master
Association and applied to reduce Assessments in the next calendar year, unless Florida Law
requires such sums to be redistributed pro rata to Owners, in which case, the distribution shall be
based upon the percentages for sharing Common Expenses between the Multifamily Parcel and
the Commercial Parcel.
Section 8. WAIVER OF SUBROGATION. As to each policy of insurance maintained by the
Master Association which will not be voided or impaired thereby, the Master Association hereby
waives and releases all claims against the Board, the Owners, the Master Declarant and the agents
and employees of each of the foregoing, with respect to any loss covered by such insurance,
whether or not caused by negligence of or breach of any agreement of said persons, but only to
the extent that such insurance proceeds are received in compensation for such loss.
ARTICLE X
GENERAL PROVISIONS
Section 1. CONFLICT WITH OTHER MASTER DOCUMENTS. In the event of any
conflict between the provisions hereof and the provisions of the Articles and/or Bylaws and/or
rules and regulations promulgated by the Master Association, the provisions of this Master
Declaration shall control.
Section 2. NOTICES. Any notice or other communication required or permitted to be given
or delivered hereunder shall be deemed properly given and delivered upon the mailing thereof by
United States mail, postage prepaid, or by a commonly recognized overnight courier service such
as Federal Express, to: (i) each Owner, at the address of the person whose name appears as the
Owner on the records of the Master Association at the time of such mailing and, in the absence of
any specific address, at the address of the Parcel owned by such Owner and (ii) the Master
Association, certified mail, return receipt requested, at 61 West Colonial Drive, Orlando, Florida
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32801, or such other address as the Master Association shall hereinafter notify the Master
Declarant and the Owners of in writing.
Section 3. ENFORCEMENT. The covenants and restrictions herein contained may be
enforced by Master Declarant (so long as Master Declarant holds an equitable or legal interest in
any Parcel or portion thereof), the Master Association, any Owner, any Institutional Mortgagee
holding a mortgage on any portion of the Property and the District and the City in any judicial
proceeding seeking any remedy recognizable at law or in equity, including damages, injunction or
any other form of relief against any person, firm or entity violating or attempting to violate any
covenant, restriction or provision hereunder. The failure by any party to enforce any such
covenant, restriction or provision herein contained shall in no event be deemed a waiver of such
covenant, restriction or provision or of the right of such party to thereafter enforce such covenant,
restriction or provision. The prevailing party in any such litigation shall be entitled to all costs
thereof including, but not limited to, Legal Fees.
Section 4. INTERPRETATION. The provisions of this Master Declaration shall be liberally
construed to effectuate its purpose and for the maintenance of the Master Association Property.
Article, Section and Paragraph captions, headings and titles inserted throughout this Master
Declaration are intended as a matter of convenience only and in no way shall such captions,
headings or titles define, limit or in any way affect the subject matter or any of the terms and
provisions thereunder or the terms and provisions of this Master Declaration.
Whenever the context so requires or permits, any pronoun used herein may be
deemed to mean the corresponding masculine, feminine or neuter form thereof, and the singular
form of any nouns and pronouns herein may be deemed to mean the corresponding plural form
thereof and vice versa.
Section 5. SEVERABILITY. In the event any of the provisions of this Master Declaration
shall be deemed invalid by a court of competent jurisdiction, said judicial determination shall in
no way affect any of the other provisions hereof, which shall remain in full force and effect, and
any provisions of this Master Declaration deemed invalid by a court of competent jurisdiction by
virtue of the term or scope thereof shall be deemed limited to the maximum term and scope
permitted by law. In the event that any court should hereafter determine that any provision of this
Master Declaration is in violation of the rule of property known as the "rule against perpetuities"
or any other rule of law because of the duration of a time period, such provision shall not thereby
become invalid, but instead the duration of such time period shall be reduced to the maximum
period allowed under such rule of law, and in the event the determination of the duration of such
time period requires measuring lives, such measuring life shall be that of the incorporator of the
Master Association.
Section 6. CERTAIN RIGHTS OF MASTER DECLARANT. Master Declarant and
Wesmere to the extent of obligations imposed on Wesmere pursuant to this Master Declaration,
hereby has, shall have and hereby reserves the right to enter upon the Master Association Property
(including, without limitation, all drainage easements) to final-out and/or close-out any and all
approvals, permits, orders, conditions and/or requirements that have been issued or imposed by
any governmental entity in connection with the development and construction of the Property and
all Improvements thereon for Master Declarant to comply and adhere to the same, and such rights
shall continue for such period of time as is necessary for the Master Declarant to fully comply
with all such governmentally issued approvals, permits, orders, conditions and/or requirements.
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Without limiting the generality of the foregoing, in exercising any such rights, the Master
Declarant (and Wesmere, as applicable) shall have the right to remove and/or relocate any and all
items (including, without limitation, landscape materials, fences andJor other Improvements) that
may be required to be removed andJor relocated to final-out andJor close-out any and all such
approvals, permits, orders, conditions andJor requirements. This Section 6 may not be suspended,
superseded or modified in any manner by any amendment to this Master Declaration unless such
amendment is consented to in writing by the Master Declarant and Wesmere. This right of use
and transaction of business as set forth herein and the other rights reserved by the Master
Declarant in the Master Documents may be assigned in writing by the Master Declarant in whole
or in part. For the purposes of this Section 6, the term "Master Declarant" shall include any
"Lender" which has loaned money to the Master Declarant to acquire or construct Improvements
upon the Commercial Parcel, or its successors and assigns if such Lender, its successors or
assigns, acquires title to any portion of the Commercial Parcel as a result of the foreclosure of any
mortgage encumbering any portion of the Commercial Parcel securing any such loan to the
Master Declarant, or acquires title thereto by deed in lieu of foreclosure. The rights and privileges
of the Master Declarant as set forth in this Section 6, which are in addition to, and are no way a
limit on, any other rights or privileges of the Master Declarant under any of the Master
Documents, shall terminate upon the Master Declarant no longer owning any portion of the
Commercial Parcel (and not having any equitable or legal interest therein) or upon such earlier
date as the Master Declarant shall notify the Master Association in writing of the Master
Declarant's voluntary election to relinquish the aforesaid rights and privileges.
The Master Declarant shall also have the right, but not the obligation, to conduct
inspections and tests from time to time of all or any portion of the Master Association Property in
order to ascertain the physical condition of the Improvements and to determine if maintenance,
repair or replacement of any such Improvement is necessary. The Master Declarant shall have
such rights of entry on, over, under, across and through the Property as may be reasonably
necessary to exercise the rights described in this Section 6. In the event the Master Declarant
exercises its inspection right, it is acknowledged by the Master Association and all Owners that
the Master Declarant is performing any such inspection for its own benefit and not for the benefit
of the Master Association andJor the Owners and further, the Master Declarant shall have no
obligation to inform the Master Association andJor the Owners of the result of any such
inspection.
ALL OWNERS, OCCUPANTS AND USERS OF THE PROPERTY ARE HEREBY PLACED
ON NOTICE THAT THE MASTER DECLARANT AND/OR ITS AGENTS, CONTRACTORS,
SUBCONTRACTORS, LICENSEES AND OTHER DESIGNEES AND OTHER OWNERS MAY
BE, FROM TIME TO TIME, CONDUCTING EXCAVATION, CONSTRUCTION AND OTHER
ACTIVITIES WITHIN OR IN PROXIMITY TO THE PROPERTY. BY THE ACCEPTANCE OF
THEIR DEED OR OTHER CONVEYANCE OR MORTGAGE, LEASEHOLD, LICENSE OR
OTHER INTEREST, AND BY USING ANY PORTION OF THE PROPERTY, EACH SUCH
OWNER, OCCUPANT AND USER AUTOMATICALLY ACKNOWLEDGES, STIPULATES
AND AGREES (i) THAT NONE OF THE AFORESAID ACTIVITIES SHALL BE DEEMED
NUISANCES OR NOXIOUS OR OFFENSIVE ACTIVITIES, HEREUNDER OR AT LAW
GENERALLY, (ii) NOT TO ENTER UPON, OR ALLOW OTHER PERSONS UNDER THEIR
CONTROL OR DIRECTION TO ENTER UPON (REGARDLESS OF WHETHER SUCH
ENTRY IS A TRESPASS OR OTHERWISE) ANY PROPERTY WITHIN OR IN PROXIMITY
TO THE PROPERTY WHERE SUCH ACTIVITY IS BEING CONDUCTED (EVEN IF NOT
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BEING ACTIVELY CONDUCTED AT THE TIME OF ENTRY, SUCH AS AT NIGHT OR
OTHERWISE DURING NON-WORKING HOURS), (iii) THE MASTER DECLARANT AND
THE OTHER AFORESAID PARTIES SHALL NOT BE LIABLE FOR ANY LOSSES,
DAMAGES (COMPENSATORY, CONSEQUENTIAL, PUNITIVE OR OTHERWISE),
INJURIES OR DEATHS WHATSOEVER ARISING FROM OR RELATING TO THE
AFORESAID ACTIVITIES, (iv) ANY PURCHASE OR USE OF ANY PORTION OF THE
PROPERTY HAS BEEN AND WILL BE MADE WITH FULL KNOWLEDGE OF THE
FOREGOING, AND (v) THIS ACKNOWLEDGMENT AND AGREEMENT IS A MATERIAL
INDUCEMENT TO MASTER DECLARANT TO SELL, CONVEY, LEASE AND/OR ALLOW
THE USE OF THE COMMERCIAL PARCEL.
Section 7. DISPUTES AS TO USE. In the event there is any dispute as to whether the use of
the Property or any portion or portions thereof complies with the covenants, restrictions,
easements or other provisions contained in this Master Declaration, such dispute shall be referred
to the Board, and a determination rendered by the Board, which determination must be pursuant
to the unanimous vote of all the Directors, with respect to such dispute shall be final and binding
on all parties concerned therewith. Notwithstanding anything to the contrary herein contained,
any use by the Master Declarant of the Property shall be deemed a use which complies with this
Master Declaration and shall not be subject to a contrary determination by the Board.
Section 8. AMENDMENT AND MODIFICATION. The process of amending or modifying
this Master Declaration shall be as follows:
1. This Master Declaration may be amended by the unanimous approval or
ratification by all Directors of the Board and the approval of the City and/or the District, if
required.
2. Amendments for correction of scrivener's errors or other nonmaterial
changes may be made by Master Declarant alone until Master Declarant no longer owns any
portion of the Commercial Parcel, and thereafter by a majority vote of the Board.
3. Notwithstanding anything to the contrary herein contained, no amendment
to this Master Declaration shall be effective which shall impair or prejudice the rights or priorities
of the Master Declarant, the Master Association, Wesmere or of any Institutional Mortgagee
under the Master Documents without the specific written approval of such party affected thereby.
Finally, notwithstanding anything to the contrary contained herein, no amendment to this Master
Declaration shall be effective which shall eliminate or modify the provisions of Section 6 of this
Article X and any such amendment shall be deemed to impair and prejudice the rights of the
Master Declarant.
4. A true copy of any Amendment to this Master Declaration shall be sent
certified mail by the Master Association to the Master Declarant, each Sub-Association, and to all
Listed Mortgagees. The amendment shall become effective upon the recording amongst the
Public Records of the County of said amendment to this Master Declaration which sets forth any
amendment or modification to this Master Declaration.
5. Notwithstanding anything contained herein to the contrary, the Master
Declarant may, without the consent of any Owners, the Master Association or any other person,
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record any amendment(s) to this Master Declaration which may be required by an Institutional
Mortgagee for the purpose of satisfying said Institutional Mortgagee's development criteria or
such other criteria as may be established by such Institutional Mortgagee's secondary mortgage
market purchasers.
6. Any proposed amendment to this Master Declaration which would affect
the Surface Water and Stormwater Management System (including the water management
portions of the Master Association Property) must have the prior approval of the District and the
City.
7. If any proposed amendment to this Declaration contains provisions which
would affect the City, such amendment must be approved in writing by the City and such
approval must be recorded in the public records of the County or such provisions will not be
effective.
Section 9. DELEGATION. The Master Association, pursuant to a resolution duly adopted by
the Board, shall have the continuing authority to delegate all or any portion of its responsibilities
for maintenance, operation and administration, as provided herein, to a Sub-Association or to any
managing agency or entity selected by the unanimous approval of all Directors of the Master
Association from time to time and whether or not related to the Master Declarant.
Section 10. TERM. This Master Declaration and the terms, provisions, conditions, covenants,
restrictions, reservations, regulations, burdens and liens contained herein shall run with and bind
the Property, and inure to the benefit of the Master Declarant, the Master Association and the
Owners and their respective legal representatives, heirs, successors and assigns for a term of fifty
(50) years from the date of recording this Master Declaration amongst the public records of the
County, after which time this Master Declaration shall be automatically renewed and extended for
successive periods of ten (10) years each unless at least one (1) year prior to the termination of
such fifty (50)-year term or any such ten (lO)-year extension there is recorded amongst the public
records of the County an instrument agreeing to terminate this Master Declaration signed by all of
the Directors and two-thirds (2/3) of all Owners and approved by the City, upon which event this
Master Declaration shall be terminated upon the expiration of the fifty (50)-year term or the ten
(10)-year extension during which such instrument was recorded.
In the event this Master Declaration is terminated or the Master Association ceases
to exist for any reason, the Owners shall be jointly and severally responsible for the costs to
maintain and shall maintain the Master Association Property in the manner described herein. This
provision shall survive the termination of this Master Declaration and shall run with the Property
in perpetuity.
In the event of a dissolution or termination of the Master Association, the
administration and maintenance of the Surface Water and Stormwater Management System shall
be transferred only to another not-for-profit corporation or dedicated to an appropriate
governmental agency agreeing to accept such conveyance or dedication; provided, however, such
entity shall be pre-approved by the City. Until such pre-approval is obtained from the City, the
City may levy and collect assessments and impose liens with respect thereto, notwithstanding the
dissolution of the Master Association for the maintenance of the Surface Water and Stormwater
Management System.
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Section 11. APPROVAL OF ASSOCIATION LAWSUITS. Notwithstanding anything
contained herein to the contrary, in order to prevent Owners from incurring expenses not
contemplated by the Master Documents, for which the Owners will be responsible, the Master
Association shall be required to obtain the approval of all Directors prior to engaging persons or
entities for the purpose of suing, or making, preparing or investigating any lawsuit, or
commencing any lawsuit other than for the following purposes:
(a) the collection of Assessments;
(b) the collection of other charges which Owners are obligated to pay
pursuant to the Master Documents;
(c) the enforcement of the use and occupancy restrictions contained in
the Master Documents; or
(d) filing a compulsory counterclaim.
Section 12. COMPLIANCE WITH PROVISIONS. Every person who owns, occupies or
acquires any right, title, estate or interest in or to any Parcel or portion thereof except as elsewhere
herein provided does consent and agree to, and shall be conclusively deemed to have consented
and agreed to, every limitation, restriction, easement, reservation, condition and covenant
contained herein, whether or not any reference to these restrictions is contained in the instrument
by which such person acquired an interest in such property. The Master Declarant shall not in
any way or manner be held liable or responsible for any violation of this Master Declaration by
any person other than the Master Declarant.
Section 13. COVENANT RUNNING WITH THE LAND. All provisions of this Master
Declaration shall, to the extent applicable and unless otherwise expressly provided herein to the
contrary, be construed to be covenants running with the Parcels and the Property and any part
thereof and interest therein, and all of the provisions hereof shall be binding upon and inure to the
benefit of the Master Declarant and subsequent Owner(s) of the Parcels and the Property or any
part thereof, or interest therein, and their respective heirs, successors, and assigns. However, the
same are not intended to create nor shall they be construed as creating any rights in or for the
benefit of the general public, unless specifically provided herein to the contrary. All present and
future Owners, lessees, and occupants of the Parcels shall be subject to and shall comply with the
provisions of this Master Declaration and the Articles, Bylaws and applicable rules and
regulations as they exist and may from time to time be amended. The acceptance of a deed of
conveyance of a Parcel or a portion thereof, or the entering into a lease of or occupancy of a
Parcel or a portion thereof, shall constitute an adoption and ratification by such Owner, lessee, or
occupant of the provisions of this Master Declaration, and the Articles, Bylaws, and applicable
rules and regulations of the Master Association, as they may be amended from time to time. In
the event that any easements granted herein shall fail for want of a grantee in being or for any
other purpose, the same shall constitute and be covenants running with the land.
Section 14. NO PUBLIC RIGHT OR DEDICATION. Nothing contained in this Master
Declaration shall be deemed to be a gift or dedication of all or any portion of the Master
Association Property to the public, or for any public use.
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Section 15. NO REPRESENTATIONS OR WARRANTIES. NO REPRESENTATIONS OR
WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, HAVE BEEN GIVEN OR MADE
BY THE MASTER DECLARANT OR ITS AGENTS OR EMPLOYEES IN CONNECTION
WITH ANY PORTION OF THE MASTER ASSOCIATION PROPERTY, ITS PHYSICAL
CONDITION, ZONING, COMPLIANCE WITH APPLICABLE LAWS, FITNESS FOR
INTENDED USE, OR IN CONNECTION WITH THE SUBDIVISION, SALE, OPERATION,
MAINTENANCE, COST OF MAINTENANCE, TAXES OR REGULATION THEREOF,
EXCEPT AS SPECIFICALLY AND EXPRESSLY SET FORTH IN THIS MASTER
DECLARATION OR ANOTHER WRITTEN INSTRUMENT.
Section 16. RIGHTS OF INSTITUTIONAL MORTGAGEES
A. Right to Notice. The Master Association shall make available for inspection
upon request, during normal business hours or under reasonable circumstances, the Master
Documents and the books, records and financial statements of the Master Association to Owners
and the holders, insurers or guarantors of any first mortgages encumbering a Parcel. In addition,
evidence of insurance shall be issued to each Owner and mortgagee holding a mortgage
encumbering a Parcel upon written request to the Master Association. A mortgagee shall be
entitled to receive timely written notice of any proposed action that requires the consent of a
specified percentage of mortgagees. To be entitled to receive notices under this subparagraph A
the mortgagee (or mortgage insurer or guarantor) must send a written request to the Master
Association stating both its name and address and the Parcel on which it has (or insures or
guaranties) the mortgage.
B. Rights of Listed Mortgagee. Upon written request to the Master Association
identifying the name and address of the Listed Mortgagee of a mortgage encumbering a Parcel
and the legal description of such Parcel, the Master Association shall provide such Listed
Mortgagee with timely written notice of the following:
1. Any condemnation, loss or casualty loss which affects any material
portion of the Master Association Property encumbered by a first mortgage held, insured or
guaranteed by such Listed Mortgagee;
2. Any lapse, cancellation or material modification of any insurance
policy or fidelity bond maintained by the Master Association; and
3. Any proposed action which would reqUIre the consent of
mortgagees holding a mortgage encumbering a Parcel.
C. Right of Listed Mortgagee to Receive Financial Statement. Any Listed
Mortgagee shall, upon written request made to the Master Association, be entitled free of charge
to financial statements from the Master Association for the prior fiscal year and the same shall be
furnished within a reasonable time following such request.
D. Right to Cover Cost. Any Listed Mortgagee shall have the right, but not the
obligation, jointly or singularly, and at their sole option, to pay any of the Assessments which are
in default and which mayor have become a charge against any Parcel. Further, any Listed
Mortgagees shall have the right, but not the obligation, jointly or singularly, and at their sole
FTL:2335962:6
31
option, to pay insurance premiums or fidelity bond premiums or any real estate taxes on behalf of
the Master Association where, in regard to insurance premiums, the premiums are overdue and
where lapses in policies mayor have occurred or, in regard to real estate taxes, where such tax is
in default and which mayor has become a charge against the Master Association Property. Any
Listed Mortgagees paying insurance premiums or any real estate tax on behalf of the Master
Association as set forth above shall be entitled to immediate reimbursement from the Master
Association plus any costs of collection, including, but not limited to, Legal Fees.
Section 17. SECURITY
NEITHER MASTER DECLARANT, WESMERE NOR THE MASTER
ASSOCIATION MAKE ANY REPRESENTATIONS WHATSOEVER AS TO THE
SECURITY OF THE PREMISES. ALL OWNERS AGREE TO HOLD MASTER
DECLARANT, WESMERE AND THE MASTER ASSOCIATION HARMLESS FROM ANY
LOSS OR CLAIM ARISING FROM THE OCCURRENCE OF ANY CRIME OR OTHER ACT.
NEITHER THE MASTER ASSOCIATION, MASTER DECLARANT, WESMERE NOR ANY
SUCCESSOR DECLARANT SHALL IN ANY WAY BE CONSIDERED INSURERS OR
GUARANTORS OF SECURITY WITHIN THE PROPERTY. NEITHER THE MASTER
ASSOCIATION, MASTER DECLARANT, WESMERE NOR ANY SUCCESSOR
DECLARANT SHALL BE HELD LIABLE FOR ANY LOSS OR DAMAGE BY REASON OR
FAILURE TO PROVIDE ADEQUATE SECURITY OR INEFFECTIVENESS OF SECURITY
MEASURES UNDERTAKEN, IF ANY. EACH OWNER AND OCCUPANT AND EACH
TENANT, GUEST AND INVITEE OF AN OWNER, ACKNOWLEDGES AND
UNDERSTANDS THAT THE MASTER ASSOCIATION AND ITS BOARD, MASTER
DECLARANT, WESMERE OR ANY SUCCESSOR DECLARANT ARE NOT INSURERS
AND THAT EACH OWNER AND OCCUPANT AND EACH TENANT, GUEST AND
INVITEE OF AN OWNER ASSUMES ALL RISKS FOR LOSS OR DAMAGE TO PERSONS,
TO IMPROVEMENTS AND TO THE CONTENTS OF IMPROVEMENTS AND FURTHER
ACKNOWLEDGES THAT THE MASTER ASSOCIATION AND ITS BOARD, MASTER
DECLARANT, WESMERE OR ANY SUCCESSOR DECLARANT HAVE MADE NO
REPRESENTATIONS OR WARRANTIES NOR HAS ANY OWNER OR OCCUPANT, OR
ANY TENANT, GUEST OR INVITEE OF AN OWNER RELIED UPON ANY
REPRESENTATION OR WARRANTY, EXPRESSED OR IMPLIED, INCLUDING ANY
WARRANTY OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE,
RELATIVE TO ANY SECURITY MEASURES UNDERTAKEN WITHIN THE PROPERTY,
IF ANY.
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32
IN WITNESS WHEREOF, this Master Declaration has been signed by the Master
Declarant and joined in by the Master Association on the respective dates set forth below.
MASTER DECLARANT:
LAKE BUTLER PROFESSIONAL CENTER, LLC,
a Florida limited liability company
WITNESSES:
By: GLOBAL GROUP INVESTMENT,
INC., a Florida corporation
Print Name:
By:
David Ortiz, President
Print Name:
(Corporate Seal)
WITNESSES:
JOINED IN BY:
WESMERE DEVELOPMENT, LLC, a Florida
limited liability company
Signature
Print Name
By:
Albert Kodsi, President
(SEAL)
Signature
Print Name
JOINED IN BY:
MORRISON HOMES, INe., a Delaware
corporation
WITNESSES:
Signature
Print Name
By:
Steven A. Parker, President
(SEAL)
Signature
Print Name
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STATE OF FLORIDA )
) SS
COUNTYOFBROWARD )
I HEREBY CERTIFY that on this day, before me, an officer duly authorized in the State
aforesaid and in the County aforesaid to take acknowledgments, the foregoing instrument was
acknowledged before me by David Ortiz, President of GLOBAL GROUP INVESTMENT, INC.,
a Florida corporation, on behalf of LAKE BUTLER PROFESSIONAL CENTER, LLC, a Florida
limited liability company, freely and voluntarily under authority duly vested in him by said
corporation, and that the seal affixed thereto is the true corporate seal of said corporation. He is
personally known to me.
WITNESS my hand and official seal in the County and State last aforesaid this _ day of
, 200_"
Notary Public, State of Florida at Large
My Commission Expires: Typed, Printed or Stamped Name of Notary Public
STATE OF )
) SS
COUNTY OF )
I HEREBY CERTIFY that on this day, before me, an officer duly authorized in the State
aforesaid and in the County aforesaid to take acknowledgments, the foregoing instrument was
acknowledged before me by Albert Kodsi, President of WESMERE DEVELOPMENT, LLC, a
Florida limited liability company, freely and voluntarily under authority duly vested in him by
said corporation, and that the seal affixed thereto is the true corporate seal of said corporation. He
is personally known to me.
WITNESS my hand and official seal in the County and State last aforesaid this _ day of
,200_.
Notary Public, State of Florida at Large
My Commission Expires: Typed, Printed or Stamped Name of Notary Public
STATE OF )
) SS
COUNTY OF )
I HEREBY CERTIFY that on this day, before me, an officer duly authorized in the State
aforesaid and in the County aforesaid to take acknowledgments, the foregoing instrument was
acknowledged before me by Steven A. Parker, the President of MORRISON HOMES, INC., a
Delaware corporation, freely and voluntarily under authority duly vested in him by said
FTL:2335962:6
corporation, and that the seal affixed thereto is the true corporate seal of said corporation. He is
personally known to me.
WITNESS my hand and official seal in the County and State last aforesaid this _ day of
,200_.
Notary Public, State of Florida at Large
My Commission Expires:
Typed, Printed or Stamped Name of Notary Public
FTL:2335962:6
EXHIBIT "A"
Legal Description of Commercial Parcel
Parcell of VILLAGES OF WESMERE, according to the Plat thereof, recorded in Plat Book 70,
Page 9 of the Public Records of Orange County, Florida.
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EXHIBIT "B"
Legal Description of Multifamilv Parcel
Lots 1 through 45, inclusive; Lots 141 through 210, inclusive; Lots 344 through 353, inclusive;
and Tracts A, B, C, D, E, F, H and M of VILLAGES OF WESMERE, according to the Plat
thereof, recorded in Plat Book 70, Page 9 of the Public Records of Orange County, Florida.
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EXHIBIT "C"
Legal Description of School Board Parcel
Parcel 2 of VILLAGES OF WESMERE, according to the Plat thereof, recorded in Plat Book 70,
Page 9 of the Public Records of Orange County, Florida.
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EXHIBIT "D"
Legal Description of Master Association Property
Tracts 0, Q, Rand T of VILLAGES OF WESMERE, according to the Plat thereof, recorded in
Plat Book 70, Page 9 of the Public Records of Orange County, Florida.
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EXHIBIT "E"
Amended and Restated Articles of Incorporation of
W esmere Cove Property Owners Association. Inc.
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EXHIBIT "F"
Amended and Restated Bylaws of W esmere Cove Property Owners Association. Inc.
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FTL:2335962:6
EXHIBIT "G"
Surface Water and Stormwater Management System Permit
JOINDER AND CONSENT OF
WESMERE TOWNHOME ASSOCIATION, INC.
TO THE AMENDED AND RESTATED MASTER DECLARATION OF COVENANTS
AND RESTRICTIONS FOR WESMERE COVE
THIS JOINDER AND CONSENT OF WESMERE TOWNHOME ASSOCIATION,
INC. ("Joinder and Consent") is given this _ day of ,200_, by the
undersigned officers of Wesmere Townhome Association, Inc. ("Association"), on behalf of the
Association.
The Association hereby joins in and consents to the Amended and Restated Master
Declaration of Covenants and Restrictions for Wesmere Cove recorded or to be recorded in the
Public Records of Orange County, Florida.
IN WITNESS WHEREOF, the undersigned has caused this Joinder and Consent to be
executed as of the day and year first above written.
JOINED IN AND CONSENTED TO BY:
WESMERE TOWNHOME ASSOCIATION, INC.:
Print Name:
John B. Shoemaker, President
Print Name:
Print Name:
Matthew Wright, Secretary
Print Name:
COUNTY OF
)
)
)
SS:
STATE OF FLORIDA
I HEREBY CERTIFY, that on this day before me, an officer duly authorized in the State
aforesaid and in the County aforesaid to take acknowledgments, the foregoing instrument was
acknowledged before me by John B. Shoemaker, as President of Wesmere Townhome
Association, Inc., a Florida not-for-profit corporation, on behalf of the corporation, who is
personally known to me to be the officer described in and who executed the foregoing
instrument.
day of
FTL:2335962:6
WITNESS my hand and official seal in the County and State aforesaid this _
,200_.
Notary Public, State of Florida
My Commission Expires:
STATE OF FLORIDA
)
)
)
SS:
COUNTY OF
I HEREBY CERTIFY, that on this day before me, an officer duly authorized in the State
aforesaid and in the County aforesaid to take acknowledgments, the foregoing instrument was
acknowledged before me by Matthew Wright, as Secretary ofWesmere Townhome Association,
Inc., a Florida not-for-profit corporation, on behalf of the corporation, who is personally known
to me to be the officer described in and who executed the foregoing instrument.
day of
WITNESS my hand and official seal in the County and State aforesaid this _
,200_.
Notary Public, State of Florida
My Commission Expires:
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JOINDER AND CONSENT OF
THE SCHOOL BOARD OF ORANGE COUNTY, FLORIDA
TO THE AMENDED AND RESTATED MASTER DECLARATION OF COVENANTS
AND RESTRICTIONS FOR WESMERE COVE
THIS JOINDER AND CONSENT OF THE SCHOOL BOARD OF ORANGE
COUNTY, FLORIDA ("Joinder and Consent") IS given this _ day of
, 200_, by the undersigned of The School Board of
Orange County, Florida ("School Board"), on behalf of the School Board.
The School Board hereby joins in and consents to the Amended and Restated Master
Declaration of Covenants and Restrictions for Wesmere Cove recorded or to be recorded in the
Public Records of Orange County, Florida.
IN WITNESS WHEREOF, the undersigned has caused this Joinder and Consent to be
executed as of the day and year first above written.
JOINED IN AND CONSENTED TO BY:
THE SCHOOL BOARD OF ORANGE COUNTY,
FLORIDA, a
Print Name:
Name:
Title:
Print Name:
STATE OF FLORIDA
)
)
)
SS:
COUNTY OF
I HEREBY CERTIFY, that on this day before me, an officer duly authorized in the State
aforesaid and in the County aforesaid to take acknowledgments, the foregoing instrument was
acknowledged before me by , as of The School
Board of Orange County, Florida, a , on behalf of the
, who is personally known to me to be the officer described in and
who executed the foregoing instrument.
day of
WITNESS my hand and official seal in the County and State aforesaid this _
,200_.
Notary Public, State of Florida
My Commission Expires:
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