**[REVISED 2/2/2019]**

Transcription

1 RECREATION ASSOCIATION FOR MCFARLAND PARK **[REVISED 2/2/2019]** Prepared By and Return to: \045105\ v1

2 Table of Contents ARTICLE 1 - DEFINITIONS... 1 SECTION 1.01 DEFINITIONS ARTICLE 2 - THE ASSOCIATION... 3 SECTION 2.01 MEMBERSHIP SECTION 2.02 VOTING SECTION 2.03 NOTICE AND QUORUM FOR ANY ACTION AUTHORIZED UNDER THIS INSTRUMENT ARTICLE 3 - FUNCTIONS OF THE ASSOCIATION... 4 SECTION 3.01 SERVICES SECTION 3.02 MORTGAGE OR OTHER FINANCING ARTICLE 4 - VOLUNTARY PARTICIPATION IN RECREATIONAL AMENITIES AND COMMON INSURANCE... 4 SECTION 4.01 RECREATIONAL AMENITIES ANNUAL ASSESSMENT SECTION 4.02 COMMON INSURANCE ANNUAL ASSESSMENT ARTICLE 5 - VOLUNTARY ANNUAL ASSESSMENTS FOR RECREATIONAL AMENITIES AND COMMON INSURANCE... 5 SECTION 5.01 COLLECTION OF RECREATIONAL ANNUAL ASSESSMENTS... 5 SECTION 5.02 COLLECTION OF COMMON INSURANCE ANNUAL ASSESSMENTS SECTION 5.03 ANNUAL ASSESSMENT BUDGET FOR RECCREATIONAL AMENITIES... 5 SECTION 5.04 ANNUAL ASSESSMENT BUDGET FOR COMMON INSURANCE SECTION 5.05 DUE DATES SECTION 5.06 EFFECT OF NON-PAYMENT OF RECREATIONAL AMENITIES ANNUAL ASSESSMENT... 6 SECTION 5.07 EFFECT OF NON-PAYMENT OF COMMON INSURANCE ANNUAL ASSESSMENT... 6 SECTION 5.08 SUBORDINATION OF VOLUNTARY ANNUAL ASSESSMENTS TO MORTGAGES; MORTGAGEE'S RIGHTS 6 SECTION 5.09 COLLECTION OF ASSESSMENTS ARTICLE 6 - INSURANCE... 6 SECTION 6.01 INSURANCE SECTION 6.02 REPAIR AND RECONSTRUCTION ARTICLE 7 - GENERAL PROVISIONS... 8 SECTION 7.01 AMENDMENT BY VOTE AT A DULY-AUTHORIZED MEETING... 8 SECTION 7.02 RESTRICTIONS ON AMENDMENTS... 8 SECTION 7.03 SEVERABILITY SECTION 7.04 COMMUNICATION SECTION 7.05 CONFLICTS SECTION 7.06 ASSIGNMENT OF RIGHTS AND DUTIES SECTION 7.07 ENFORCEMENT SECTION 7.08 INTERPRETATION SECTION 7.09 AUTHORIZED ACTION SECTION 7.10 TERMINATION OF INSTRUMENT SECTION 7.11 PROHIBITED ACTIONS SECTION 7.12 SINGULAR, PLURAL AND GENDER SECTION 7.13 CONSTRUCTION SECTION 7.14 LAWS OF FLORIDA i

3 RECREATION ASSOCIATION FOR MCFARLAND PARK THIS RECREATION ASSOCIATION FOR MCFARLAND PARK is made as of the day of January, 2019 by McFarland Park Recreation Association, Inc., a Florida not for profit corporation, whose address is set forth below (together Association ). W I T N E S S E T H: WHEREAS, the Association is charged with the operation and management of all of the real property located in Brevard County, Florida, described in Exhibit A attached hereto and made a part hereof by this reference thereto ( McFarland Park ); and WHEREAS, the Property (as hereinafter defined) has been developed as a community of single-family homes with recreational facilities and other amenities; and NOW THEREFORE, the Association hereby establishes and sets forth the provisions for the operation, management and enhancement of McFarland Park. ARTICLE 1 - DEFINITIONS Section 1.01 Definitions. The following words and terms when used in this instrument (unless the context shall clearly indicate otherwise) shall have the following meanings: A. Association shall mean and refer to McFarland Park Recreation Association, Inc., a Florida non-profit corporation, its successors and assigns. B. Articles shall mean and refer to the Articles of Incorporation of the Association as they may exist from time to time. C. Board shall mean the Board of Directors of the Association. D. Bylaws shall mean and refer to the Bylaws of the Association as they may exist from time to time. E. Common Expenses shall mean and refer to expenditures for (i) the improvement, installation, construction, replacement, maintenance and repair of McFarland Park, including, but not limited to, any and all improvements from time to time located thereon, (ii) the performance of any and all other services or other obligations required or authorized to be performed by the Association with respect to McFarland Park 1

4 or otherwise and (iii) the performance of any and all other rights and/or obligations which the Association may be required or permitted to perform pursuant to the terms of the Articles, Bylaws, this instrument or by law, whether set forth herein explicitly or implicitly. F. McFarland Park shall mean all of the real property located in Brevard County, Florida described in Exhibit A attached hereto and made a part hereof by this reference thereto. The term McFarland Park shall also include any personal property acquired by the Association for McFarland Park. G. Institutional Lender shall mean and refer to the owner and holder of a mortgage encumbering a Residential Unit, which is a bank, savings bank, mortgage company, life insurance company, federal or state savings and loan association, national banking association, an agency of the United States government, private or public pension fund, Veteran s Administration, the Federal National Mortgage Association, the Federal Home Loan Mortgage Corporation, a credit union, real estate or mortgage investment trust or a lender generally recognized in the community as an institutional lender. H. Lot shall mean any parcel(s) of land shown upon any recorded subdivision map or plat of all or any portion of the Property upon which a Residential Unit is constructed or upon which a Residential Unit may be constructed. I. Maintenance shall mean, but not be limited to, the following: cleanup, landscaping, irrigation and grounds care; dredging, chemical treatment and other services related to retention areas, swales and drainage ditches; painting and structural upkeep of the dock, boat ramp, covered picnic area, recreational facilities, roads, walls, entry features and rights of way; and repair and all other such functions incidental to the services of the Association. J. Member shall mean and refer to any Owner (as hereinafter defined), who by virtue of being an Owner shall be a Member of the Association. K. Owner shall mean and refer to the owner of fee simple title to any Lot, Residential Unit or other real property located within the Property. Owner shall not mean or refer to (i) the holder of a mortgage or security interest, its successors or assigns, unless and until such holder has acquired title pursuant to foreclosure or a proceeding or deed in lieu of foreclosure; or (ii) any lessee or tenant of an Owner. L. Property shall mean and include the real property described in Exhibit B attached hereto. M. Recreational Amenities shall mean any recreational facilities and amenities now located on McFarland Park and which may be authorized under this instrument from time to time. N. Residential Unit shall mean and refer to any platted and developed single family dwelling home, or other improved property intended for use as a residential dwelling, for which a certificate of occupancy has been issued by the appropriate governmental authorities and located within the Property. 2

5 O. Existing Rules and Regulations shall mean the following rules and regulations governing the use of McFarland Park by the Members: (i) Closed From Dusk To Dawn; and (ii) No Amplified Music. ARTICLE 2 - THE ASSOCIATION Section 2.01 Membership. Every Owner shall be a Member of the Association. Membership shall be appurtenant to, run with, and may not be separated from ownership of the Lot, Residential Unit or other real property located within the Property. Section 2.02 Voting. Members shall be all Owners. Owners of undeveloped Lots or other unimproved real property within the Property shall be entitled to one vote for each property owned; provided however, in the event any such properties are contiguous to one another and owned by the same Owner, such Owner shall be entitled to one vote for such grouping of contiguous properties. Owners of Residential Units shall be entitled to one vote for each Residential Unit owned, regardless of the number of contiguous Lots upon which the Residential Unit has been erected. When any Lot, Residential Unit or other real property within the Property entitling the Owner to membership in the Association is owned of record in the name of two or more persons or entities, whether fiduciaries, joint tenants, tenants in common, tenants by the entirety or in any other manner of joint or common ownership, or if two or more persons or entities have the same fiduciary relationship respecting the same property, then unless the instrument or order appointing them or creating the tenancy otherwise directs and it or a copy thereof is filed with the Secretary of the Association, such Owner shall select one official representative to qualify for voting in the Association and shall notify in writing the Secretary of the Association of the name of such individual. The vote of the individual shall be considered to represent the will of all the Owners of that Lot, Residential Unit or other real property within the Property. In the circumstance of such common ownership, if the Owners fail to designate their voting representative then the Association may accept the person asserting the right to vote as the voting Owner until notified to the contrary by the other Owners of such Lot, Residential Unit or other real property within the Property. Upon such notification, the Owner may not vote until the Owner(s) appoint their representative pursuant to this paragraph. Section 2.03 Notice and Quorum for Any Action Authorized Under This Instrument. Written notice of any meeting called for the purpose of taking any action authorized under this instrument (other than amendment of this instrument which shall be governed by Section 7.01 hereof) shall be sent to all Members not less than thirty (30) days nor more than sixty (60) days in advance of the meeting. At the first such meeting called, the presence of Members or of proxies entitled to cast thirty percent (30%) or such lesser amount as may be allowed by law, of all the votes of the Membership shall constitute a quorum. If the required quorum is not present, another meeting may be called subject to the same notice requirement, and the required quorum at the subsequent meeting shall be one-half (1/2) of the required quorum at the preceding meeting. No such subsequent meeting shall be held more than sixty (60) days following the preceding meeting. ARTICLE 3 - FUNCTIONS OF THE ASSOCIATION Section 3.01 Services. The Board of the Association shall have the powers provided herein and in the Articles and Bylaws from time to time, and such other powers as may be vested in the Association by law, and shall provide (or cause to be provided) the following services: 3

6 A. Operation, management and enhancement of McFarland Park, including improvement, installation, construction, replacement, maintenance and repair. B. Publishing and enforcing the Existing Rules and Regulations, as defined in Section 1.01 above, and adopting, publishing and enforcing such additional reasonable rules and regulations governing the use of McFarland Park by the Members as the Board deems necessary; provided however, other than granting temporary waivers for special events and occasions from time to time as the Board deems necessary or appropriate, the Board shall not have the right to modify the Existing Rules and Regulations, as defined in Section 1.01.O, unless such modification is approved upon the affirmative vote of one hundred percent (100%) of the membership casting votes (either in person or by proxy) and in all other respects in the manner set forth Section C. Installation and construction of improvements and enhancements to McFarland Park (as determined by the Board in its sole option and discretion to provide the services as authorized in this Article). Anything in this instrument to the contrary notwithstanding, a new amenity or new improvement not constituting replacement of an existing amenity or existing improvement shall require the approval of at least a simple majority of the membership casting votes (either in person or by proxy) and otherwise in the manner set forth in Section D. The Board shall have the right, in its discretion, to enter into contracts on behalf of the Association for the purpose of carrying out its duties hereunder or which will otherwise be of benefit to the Members in general. The terms of any such contracts shall be negotiated by the Board in its discretion. It is contemplated that the Board may (but shall not be required to) enter into a contract with a management company for the purpose of managing the day to day affairs of the Association and for carrying out the Association s maintenance obligations with respect to McFarland Park. E. The Association has a right of entry onto the property of McFarland Park to the extent reasonably necessary to discharge its duties, if any, or for any other purpose reasonably related to the Association's performance of any duty imposed, or exercise of any right granted, by this instrument or by any applicable Supplemental or Amended Declaration, or by the Governing Documents. Such right of entry shall be exercised in a peaceful and reasonable manner at reasonable times and upon reasonable notice whenever circumstances permit. No Member shall withhold consent arbitrarily to entry by the Association for the purpose of discharging any duty or right if such entry is upon reasonable notice, at a reasonable time, and in a peaceful and reasonable manner. The Association's right of entry may be exercised by its agents, designees, employees and contractors. The Association s designees shall specifically include non-profit academic and scientific organizations actively engaged in testing, monitoring and other science or research activities dedicated to the restoration, enhancement and preservation of the Indian River Lagoon, including, without limitation, the Marine Discovery Center, Marine Resource Center, University of Central Florida, Florida Institute of Technology, Eastern Florida State College, Brevard County Natural Resources Department, Brevard Zoo (e.g., planting living shorelines), Keep Brevard Beautiful (e.g., fish kill clean-ups) and S.E.A. (Stewardship, Education, Action) (e.g., "One day in the life of the Indian River Lagoon") (the Science/Research Organizations ). Notwithstanding the foregoing, the Board shall have the right to impose reasonable restrictions on such entry by the Science/Research Organizations from time to time as the Board deems necessary and to suspend or terminate entry by any of the Science/Research Organizations (i) using such access for other than valid science/research purposes, (ii) negatively impacting the peaceful use and enjoyment of McFarland Park by the Members, or (iii) failing to provide proof of insurance in form and content acceptable to the Board as it deems necessary. The Association shall have the right to terminate 4

7 this right of entry by all Science/Research Organizations if such right of entry (i) adversely affects the availability or cost of insurance coverages for McFarland Park and/or the homeowners insurance policies of Members, (ii) results in damage to or excess wear and tear of amenities, or (iii) involves conduct or activities not consistent with the proper and orderly management and operation of McFarland Park for its Members. Section 3.02 Mortgage or other Financing. Anything in this instrument or in the Articles or Bylaws to the contrary notwithstanding, any loan or other financing, whether secured or unsecured, shall require the joinder of each and every Owner. ARTICLE 4 VOLUNTARY PARTICIPATION IN RECREATIONAL AMENITIES AND COMMON INSURANCE [As explained in the hand-out on , the Recreational Amenities Annual Assessment and Common Insurance Annual Assessment will be combined into one annual assessment for both. See the hand-out for an estimate for each. A copy of the hand-out is included. Please refer to it. As was stated in the hand-out, we have removed the provisions stating residents not participating will not have access. By the way, the was the preparation of this document works is that we are obtaining input of an association attorney in Orlando. In this way, changes to the form we started with are looked at by the association attorney. However, this can quickly turn into a big cost item so we hope to only go back to her one last time.] Section 4.01 Recreational Amenities Annual Assessment. Upon payment in full of the Recreational Amenities Annual Assessment (as hereinafter defined), a Member shall have access to and use and enjoyment of McFarland Park for the upcoming fiscal year, but subject to this instrument, the Articles and Bylaws, the rules and regulations promulgated by the Association, as well as any additional rules and regulations as may be promulgated by the Association with respect to McFarland Park from time to time. No Member shall be obligated for the Recreational Amenities Annual Assessment (as hereinafter defined). Section 4.02 Common Insurance Annual Assessment. Upon payment in full of the Common Insurance Annual Assessment (as hereinafter defined), a Member shall be included as a benefitted party under Section 6.01.B. for purposes of public liability insurance coverage and other insurance coverages for McFarland Park, as provided in Article 6 below, for the upcoming fiscal year. No Member shall be obligated for the Common Insurance Annual Assessment (as hereinafter defined); provided however, Members not contributing the Common Insurance Annual Assessment shall not have coverage under the public liability insurance coverage and other insurance coverages for McFarland Park, as provided under Article 6 below, for the upcoming fiscal year. In such event, Members are reminded of their potential liability as a part owner of McFarland Park and the need to obtain insurance separately. ARTICLE 5 VOLUNTARY ANNUAL ASSESSMENTS FOR RECREATIONAL AMENITIES AND COMMON INSURANCE Section 5.01 Collection of Recreational Amenities Annual Assessments. The voluntary annual assessments for the recreational amentities set forth in Section 4.01 above shall be collected by the Association and used for the operation, management and enhancement of McFarland Park, including improvement, installation, construction, replacement, maintenance and repair of McFarland Park and to perform all obligations and services which the Association is authorized or 5

8 required to provide including, but not limited to, the payment of construction, repair, replacement or enhancement of improvements, cost of maintenance and operation of McFarland Park, payment of the costs to acquire labor, equipment, materials, management and supervision necessary to carry out its authorized functions (the Recreational Amenities Annual Assessment ). The Association may, but shall not be obligated to, establish reserve funds to be held in reserve in an interest bearing account or investments as a reserve for (a) major rehabilitation, major repairs or enhancements to McFarland Park, (b) emergency and other repairs required as a result of storm, fire, natural disaster or other casualty loss, and (c) such other items as the Board may deem appropriate. Section 5.02 Collection of Common Insurance Annual Assessments. The voluntary annual assessments for insurance premiums set forth in Section 4.02 above shall be collected by the Association and used solely for the payment of insurance premiums for public liability insurance coverage and other insurance coverages for McFarland Park, as provided in Article 6 below, for the upcoming fiscal year. The Association may, but shall not be obligated to, establish reserve funds to be held in reserve in an interest bearing account or investments as a reserve for such insurance premiums. Section 5.03 Annual Assessment Budget for Recreational Amenities. Not later than sixty (60) days prior to the commencement of the fiscal year of the Association, the Board shall prepare and adopt an itemized budget which sets forth the estimated revenues and expenses (for both operations and reserves) of the Association for the recreational amenities for the upcoming fiscal year. The number of participating Members used for the calculation of the annual assessment budget for the recreational amenities shall be determined based upon the number of Members that have elected in writing to participate in the recreational amenities for the upcoming fiscal year not later than thirty (30) days prior to the commencement of the fiscal year of the Association, and once so determined shall be controlling for the entire fiscal year. Each participating Member shall be responsible for an equal pro rata share of the Recreational Amenities Annual Assessment. The Recreational Amenities Annual Assessment budget format shall be determined by the Board from time to time, subject to any provisions of applicable law. A copy of the budget, along with written notice of each participating Member s share of the Recreational Amenities Annual Assessment, shall be sent to participating Members prior to the date on which the payment of the Recreational Amenities Annual Assessment is due, but a failure to do so shall not in any event excuse an participating Member s obligation to pay such Recreational Amenities Annual Assessment. Section 5.04 Annual Assessment Budget for Common Insurance. Not later than sixty (60) days prior to the commencement of the fiscal year of the Association, the Board shall prepare and adopt an itemized budget which sets forth the estimated revenues and expenses (for both operations and reserves) of the Association for common insurance, as provided in Article 6 below, for the upcoming fiscal year. The number of participating Members used for the calculation of the annual assessment budget for common insurance shall be determined based upon the number of Members that have elected in writing to participate in the common insurance for the upcoming fiscal year not later than thirty (30) days prior to the commencement of the fiscal year of the Association, and once so determined shall be controlling for the entire fiscal year. Each participating Member shall be responsible for an equal pro rata share of the Common Insurance Annual Assessment. The Common Insurance Annual Assessment budget format shall be determined by the Board from time to time, subject to any provisions of applicable law. A copy of the budget, along with written notice of each participating Member s share of the Common Insurance Annual Assessments, shall be sent to participating Members prior to the date on which the payment of the Common Insurance Annual Assessment is due, but a failure to do so shall not 6

9 in any event excuse a participating Member s obligation to pay such Common Insurance Annual Assessment. Section 5.05 Due Dates. The annual assessments provided for herein shall be due and payable in advance not later than the commencement of the fiscal year. Section 5.06 Effect of Non-Payment of Common Insurance Annual Assessment. In the event that the Common Insurance Annual Assessment is not paid by a Member on the date due (being the date specified in Section 5.05 above), then such Member shall be deemed to have forfeited coverage under the public liability insurance coverage and other insurance coverages for McFarland Park, as provided in Article 6 below, for the upcoming fiscal year. Section 5.07 Subordination of Voluntary Annual Assessments to Mortgages; Mortgagees Rights. The Recreational Amenities Annual Assessments and Comomon Insurance Annual Assessments provided for herein are and shall be subordinate to the lien of any mortgage given to an Institutional Lender now or hereafter placed upon a Lot, Residential Unit or other real property lcoated within the Property. Section 5.08 Collection of Assessments. Annual assessments hereunder shall be billed by the Association and collected by the Association. ARTICLE 6 - INSURANCE [This Section will be revised to conform to the Declaration.] Section 6.01 Insurance. Insurance obtained by the Association on any portion of McFarland Park shall at a minimum comply with the applicable provisions of this Article 6, including the provisions of this Article 6 applicable to policy terms, loss adjustment and all other subjects to which this Article 6 applies with regard to insurance on McFarland Park. All such policies shall provide for a certificate of insurance to be furnished to the Association. The Board shall obtain a public liability policy covering McFarland Park and the Association for all damage or injury caused by the negligence of the Association or any of its Members or agents. The public liability policy shall have at least One Million Dollars ($1,000,000.00) of coverage for bodily injury, personal injury, and property damage from a single occurrence, and, if reasonably available, Two Million Dollars ($2,000,000.00) cumulative coverage. Premiums for all insurance obtained by the Association shall be Common Expenses of the Association and shall be included in the Common Insurance Annual Assessment, as provided above. The policy may contain a reasonable deductible. All insurance coverages obtained by the Board shall be written in the name of the Association and in the name of the Association, in its capacity as trustee for the respective benefitted parties, as further identified in Section 6.01.B. below. Such insurance shall be governed by the provisions hereinafter set forth: A. All policies shall be written with a company licensed to do business in Florida which holds a Best s ranking of A or better and is assigned a financial size category of XI or larger as established by A.M. Best Company, Inc., if reasonably available, or, if not available, the most nearly equivalent rating. 7

10 B. All policies on McFarland Park shall be for the benefit of the Association and, in each fiscal year, those Members that have actually timely contributed the Common Insurance Annual Assessment for such fiscal year. C. Exclusive authority to adjust losses under policies obtained by the Association on McFarland Park shall be vested in the Board. D. In no event shall the insurance coverage obtained and maintained by the Association s Board hereunder be brought into contribution with insurance purchased by individual Owners, occupants, or their mortgagees. E. The Association s Board shall be required to make every reasonable effort to secure insurance policies that will provide for the following: (a) a waiver of subrogation by the insurer as to any claims against the Association s Board, its manager, the participating Members, and their respective tenants, servants, agents, and guests; (b) a statement that no policy may be cancelled, invalidated, suspended, or subject to non-renewal on account of any one or more individual participating Members; (c) a statement that no policy may be cancelled, invalidated, suspended, or subject to non-renewal on account of the conduct of any director, officer, or its duly authorized manager without prior demand in writing delivered to the Association to cure the defect and the allowance of a reasonable time thereafter within which the defect may be cured by the Association, its manager, any Member, or mortgagee; (d) that any other insurance clause in any policy exclude individual participating Member s policies from consideration; and (e) that the Association will be given at least thirty (30) days prior written notice of any cancellation, substantial modification, or non-renewal. In addition to the other insurance required by this Article, the Board shall obtain, as a Common Expense, any and all other insurance required by law or determined to be reasonably necessary and/or desirable by the Board; provided however, insurance policies for fire and extended coverage, wind coverage or flood shall be approved upon the affirmative vote of at least seventy-five percent (75%) of the membership casting votes (either in person or by proxy) at a meeting duly called to consider the proposed insurance and otherwise the manner set forth in Section 7.01 below. Section 6.02 Repair and Reconstruction. In the event of damage to or destruction of any improvements to McFarland Park and reserve funds are available and in an amount sufficient to pay for the full cost of repair or reconstruction, the Board shall make the determination of whether the damage to or destruction of McFarland Park shall be repaired or reconstructed. In the event that it should be determined in the manner described above that the damage to or destruction of any improvements to McFarland Park shall not be repaired or reconstructed and no alternative improvements are authorized, then the affected portion of McFarland Park shall be restored to its natural state and maintained by the Association in a neat and attractive condition consistent with the standards of McFarland Park. 8

11 ARTICLE 7 - GENERAL PROVISIONS Section 7.01 Amendment by Vote at a Duly-Authorized Meeting. An amendment to this instrument may be proposed by the Association, or through a petition signed by ten percent (10%) of the Members. If a proposed amendment is to be adopted by a vote, a written copy of the proposed amendment shall be furnished to each Member at least thirty (30) days, but not more than ninety (90) days, prior to a duly-authorized meeting called to discuss the proposed amendment. To pass, the proposed amendment shall be approved upon the affirmative vote of at least a simple majority of the membership casting votes (either in person or by proxy) at a meeting duly called to consider the proposed amendment; provided however, for avoidance of doubt, if a higher or lower percentage of the membership casting votes is required for approval as specified elsewhere herein, that percentage shall govern for such approval. Upon the approval of an amendment pursuant to this Section 7.01, the President and Secretary shall execute a written instrument in recordable form which shall set forth the text of the amendment, the effective date of the amendment, the date of the meeting of the Association at which such amendment was adopted, the date that notice of such meeting was given, the total number of votes cast at the meeting (either in person or by proxy), the total number of votes necessary to adopt the amendment, the total number of votes cast for the amendment, and the total number of votes cast against the amendment. The written amendment executed by the President and Secretary shall be recorded in the Public Records of Brevard County, Florida. Section 7.02 Restrictions on Amendments. Notwithstanding anything to the contrary contained in Section 7.01 above, no amendment to this instrument may: (i) impair the validity or priority of the lien of any Mortgage or impair the rights granted to Mortgagees herein without the prior written consent of such Mortgagees; (ii) result in or facilitate a termination of the Association s obligation to maintain McFarland Park; (iii) materially alter the general plan of development for McFarland Park; or (iv) violate the Association Act. Section 7.03 Severability. Invalidation of any one of the provisions of this instrument by judgment or court order shall in no way affect any other provisions which shall remain in full force and effect. Section 7.04 Communication. All communication from Members to the Board of Directors of the Association, or any officer of the Association shall be in writing in order to be deemed effective. Section 7.05 Conflicts. In the event of a conflict between this instrument and the provisions of the Bylaws or the Articles, the terms of this instrument shall control. Section 7.06 Enforcement. Enforcement of the provisions of this instrument shall be by any proceeding at law or in equity and may be instituted by the Association, it successors or assigns, or any Member or Owner against any person or persons violating or attempting to violate or circumvent any provision(s) hereof, either to restrain violation or to recover damages; and failure by the Association or any Member or Owner to enforce any provision(s) herein contained for any period of time shall in no event be deemed a waiver or estoppel of the right to enforce same thereafter. In connection with the said enforcement of the provisions of this instrument, the prevailing party shall be entitled to its reasonable attorney s fees and costs at all pre-trail, trial, appellate levels and post judgment levels. 9

12 Section 7.07 Interpretation. The Board shall have the right, except as limited by any other provisions of this instrument or the Bylaws, to determine all questions arising in connection with this instrument and to construe and interpret its provisions, and its good faith determination, construction or interpretation shall be final and binding. In all cases, the provisions of this instrument shall be given that interpretation or construction that will best tend toward the consummation of the general plan of improvements. Section 7.08 Authorized Action. All actions which the Association is allowed to take under this instrument shall be authorized actions of the Association as approved by the Board in the manner provided for in the Bylaws of the Association, unless the terms of this instrument provide otherwise. Section 7.09 Termination of Instrument. Termination of this instrument shall be approved by the Members in the same manner as approval of an amendment to this instrument, as provided in Section 7.01 above; provided however, that in order to pass the termination shall be approved upon the affirmative vote of at least seventy-five percent (75%) of the membership casting votes (either in person or by proxy) in lieu of a simple majority. Section 7.10 Prohibited Actions. Notwithstanding anything contained herein to the contrary, the Association will neither perform any act nor undertake any activity which will violate its non-profit status under applicable state or federal law. Section 7.11 Singular, Plural and Gender. Whenever the context so permits, the use of the singular shall include the plural and the plural shall include the singular, and the use of any gender shall be deemed to include all genders. Section 7.12 Construction. The provisions of this instrument shall be liberally construed to effectuate its purpose of creating a uniform plan for the operation of McFarland Park. Section 7.13 Laws of Florida. The provisions of this instrument shall be construed under and subject to the laws of the State of Florida. IN WITNESS WHEREOF, the Association has executed this instrument as of the day and year first above written. Signed, sealed and delivered in the presence of the following: WITNESS: Name: McFarland Park Recreation Association, Inc., a Florida not for profit corporation By: Printed Name: Title: President Name: Address: 10

13 STATE OF FLORIDA COUNTY OF BREVARD The foregoing instrument was acknowledged before me this day of January, 2019 by, as President of McFarland Park Recreation Association, Inc., a Florida non-profit corporation. He [ ] is personally known to me or [ ] has produced a driver s license as identification. (NOTARY SEAL) NOTARY SIGNATURE PRINTED NOTARY SIGNATURE NOTARY PUBLIC, STATE OF FLORIDA Commission Number: My Commission Expires: 11

14 Exhibit A MCFARLAND PARK That certain real property designated Dedicated to Owners of Lots in Carleton Terrace only for Plat Purposes on the Amended Plat of Carleton Terrace recorded in Plat Book 3, Page 61, of the Public Records of Brevard County, Florida (Brevard Parcel No.: ; Address: 2060 Indian River Drive, Cocoa, FL 32922). 12

15 Exhibit B Property All lots and other real property appearing on (i) the Amended Plat of Carleton Terrace recorded in Plat Book 3, Page 61, of the Public Records of Brevard County, Florida (April 21, 1924), (ii) the additional plat of Carleton Terrace recorded in Plat Book 3, Page 99, of the Public Records of Brevard County, Florida (January 13, 1925), and (iii) the additional plat of Carleton Terrace recorded in Plat Book 5, Page 90, of the Public Records of Brevard County, Florida (February 8, 1926). 13