Declaration of Condominium Establishing "Harrogate Square Condominium"

1.01. — Submission.

The Unit Owners hereby submit the land described on Schedule A attached hereto and made a part hereof, together with all improvements thereon erected (hereinafter called the “Property”) to the provisions of Article 9-B of the Real Property Law of the State of New York (the “Condominium Act”).

2.01. — Definitions.

“Board of Managers” shall mean and refer to that body of individuals elected or appointed pursuant to the By-Laws of the Condominium to administer the operation and maintenance of the Condominium Property.

“Buildings” shall mean and refer to the structures containing 96 Units.

“By-Laws” shall mean and refer to the framework and procedures pursuant to which the Condominium will be operated. The By-Laws are attached to this Declaration as Schedule C (By-Laws Schedule C.pdf).

“Common Charges”. Each Unit’s proportionate shares of the common expenses in accordance with its common interest. The common expenses shall include:

1. Maintenance, management, operation, repair and replacement of the common elements. The cost of maintenance and repair of foundation and exterior walls of the Units and their roofs shall constitute a common charge; and

2. Management and administration of the Condominium, including, but not limited to, compensation paid by the Condominium to a managing agent, accountants, attorneys, and other employees; and

3. Any other items, including insurance, held by or in accordance with the provisions of this Declaration.

“Common Elements”, unless otherwise provided in this Declaration, means all the property, except the Units.

“Common Interest”. Each Unit’s proportionate, undivided interest in fee simple absolute in the common elements.

“Condominium” shall mean and refer to the Harrogate Square Condominium.

“Declaration” shall mean and refer to this Declaration of Condominium which, by being recorded in the Erie County Clerk’s Office, subjects the Property to the provisions of Article 9-B of the Real Property Law of the State of New York.

“Eligible Mortgage Holder” shall mean and refer to the holder of a first mortgage on a Unit who has requested the Board of Managers to notify them on any proposed action or any proposed modification, alteration, amendment or addition to the legal documents of the Condominium which requires the consent of mortgagees or Eligible Mortgage Holders.

“Institutional Mortgagee” shall mean and refer to a bank, savings and loan association, life insurance company, pension trust, trust company which holds a first mortgage on a Unit.

“Property” or “Condominium Property” shall mean and refer to the land and all improvements thereon (including the “Units”, and the common elements), owned in fee simple absolute, and all easements, rights and equipment/accessories belonging thereto, and all other property, personal or mixed, intended for use in connection therewith, all of which are intended to be submitted to the provisions of said Article 9-B of the Real Property Law of the State of New York.

“Restricted Common Elements”. Common elements restricted to the exclusive use and enjoyment of the owner of a particular Unit.

“Rules and Regulations” shall mean those guidelines relating to the use of the Property attached to the By-Laws of the Condominium as the same may be amended from time to time by the Board of Managers.

“Unit” shall mean and refer to a specific portion of a Building designed for separate occupancy as a dwelling by an individual or group of individuals. The term “Unit” and “Unit Owner” as used herein shall be construed to mean Unit and Unit Owner as defined in Section 339-e of Article 9-B of the Real Property Law of the State of New York.

“Unit Owner” shall mean and refer to the record owner of a Unit in the Condominium.

3.01. — Buildings.

The “Buildings”, as hereinafter referred to, are the structures containing 96 Units. The property on which the Building is located is more particularly described in Schedule A attached hereto.

4.01. — Number and Address of Units.

There are 96 Units, 16 “Garden Apartment Style” Units, and 80 “Townhouse Style” Units. Thirty-four of the Townhouse Units have attached garages which are part of the Unit. These Townhouse Units are designated by numeral address. The Garden Apartment Units are designated by numeral address and letter prefix, as follows:

1. Harrogate Square – Nos. 2, 6, 4, 8, 10, 12, 14, 16

2. Harrogate Square – Nos. 18, 20, 22, 24, 26, 28, 30, 32

3. Harrogate Square – Nos. 34, 36, 38, 40, 42, 44, 46, 48, 50, 52, 54, 56

4. Harrogate Square – Nos. 58, 60, 62, 64, 66, 68, 70, 72, 74, 76, 78, 80

5. Harrogate Square – Nos. 82, 84, 86, 88, 90, 92, 94, 96, 98, 100, 102, 104

6. Harrogate Square – Nos. 106, 108, 110, 112, 114-A, 114-B, 114-C, 114-13, 114-E, 114-F, 114-0,114-H, 116, 118, 120, 122

7. Harrogate Square – Nos. 124, 126, 128, 130, 132-A, 132-B, 132-C, 132-D, 132-E, 132-F, 132-G, 132-H, 134, 136, 138, 140

8. Harrogate Square – Nos. 194, 196, 198, 200, 202, 204, 206, 208, 210, 212, 214, 216

4.02. — Designations, Percentage Interest in Common Elements.

Annexed hereto, and made a part hereof as Schedule B (Unit Demographics Schedule B.pdf), is a list of all Units in the Building, their Unit designations, square footage, and percentage of interest in the “common elements” as hereinafter defined.

4.03. — Dimensions of Units.

Each Townhouse Unit consists of the area measured horizontally from the exterior surface of the sheetrock of all opposite walls to the exterior surface of the sheetrock of all opposite walls (except that in the basement each Townhouse is measured horizontally from the interior surfaces of the foundation of all opposite walls to the interior surface of the foundation of all opposite walls) and vertically from the lower surface of the concrete forming the basement floor of the Unit up to the exterior surface of the sheetrock forming the ceiling of the Unit. Each Garden Apartment Unit is measured horizontally from the exterior surface of the sheetrock of all opposite walls to the exterior surface of the sheetrock of all opposite walls and vertically from the lower surface of the subfloor forming the floor of the Unit up to the exterior surface of the sheetrock forming the ceiling of the Unit. Doors, windows and interior walls which abut a Unit are part of the Unit. The furnace, hot water tank and air conditioning unit servicing a Garden Apartment Unit and all pipes, ducts, wires and conduits connecting such equipment to the Unit are part of the Unit.

4.04. — Ownership of Units.

Each Unit will be sold to one or more parties (hereinafter referred to as the “Unit Owners”) with each Unit Owner obtaining fee ownership to the Unit acquired and the appurtenant undivided interest in the “common elements” (see Article V of this Declaration) of the Condominium, all as set forth in Schedule B (Unit Demographics Schedule B.pdf) of this Declaration. Upon acquiring title in such manner, such purchaser(s) shall become a Unit Owner in the Condominium and will remain such so long as such Unit is owned by such Owner. No Unit Owner may own more than two (2) Units. No more than five (5) Units may be leased at one time, and no Owner may lease more than (1) one Unit.

4.05. — Use of Units.

Each Unit shall:

1. be used for residential purposes only;

2. be resided in by not more persons (including children) than two (2) times the number of bedrooms in the Unit, except that this shall not apply to persons who have a child after they have taken occupancy;

3. if resided in by three (3) or more persons (including children) such persons shall be members of the same family (or if the Unit Owner or lessee is a partnership, a corporation or a trust, members of the family of a partner, director, shareholder, or employee of the corporation or of the beneficiary of the trust, as the case may be). “Same family” shall be defined as persons related to one another as husband, wife, mother, father, sister, brother, stepsister, stepbrother, daughter, son, stepdaughter, stepson; together with their children. This restriction requiring three (3) or more residents to be members of the same family maybe waived by written consent obtained from the Board of Managers prior to occupancy; and

4. not be leased or rented for an initial period of less than one (1) year.

5. No portion of a Unit may be leased. Only the entire Unit may be leased.

6. A copy of the executed lease and any required addendum, must be furnished to the Board of Managers prior to occupancy by the Tenant. The lease must require compliance by the tenant with the Declaration, By-Laws and Rules and Regulation of the Condominium.

4.06. — No Partition of Units.

No Unit (including the interest in the common elements appurtenant thereto) shall be subject to partition by the Unit Owner; provided, however, that the foregoing shall not be construed as prohibiting any division or combination of Units as provided in Section 6.01 of this Declaration or any structural alterations or changes in the number of rooms in a Unit upon approval of the Board of Managers as provided for in Article VI of this Declaration.

5.01. — Definition of Common Elements.

The common elements are defined in Article II of this Declaration, and are all of the property, except the Units.

5.02. — Interest in Common Elements.

Each Unit Owner shall have such percentage interest in the common elements as is set forth on Schedule B (Unit Demographics Schedule B.pdf) attached hereto and shall bear such percentage of the common expenses of the Condominium. The percentage of interest of each Unit in the common elements has been determined on the basis of each of the separate classifications of Units having an equal percentage interest in the common elements as follows:

• Each Garden Apartment Style Unit having floor space of 976 sq. feet has a 0.6035 percent interest in the common elements of the Condominium.

• Each Garden Apartment Style Unit having floor space of 1,142 sq. feet has a 0.7061 percent interest in the common elements of the Condominium.

• Each Townhouse Style Unit, with garage, having floor space of 1,603 sq. feet has a 0.9912 percent interest in the common elements of the Condominium.

• Each Townhouse Style Unit, with garage, having floor space of 1,673 sq. feet has a 1.0344 percent interest in the common elements of the Condominium.

• Each Townhouse Style Unit, with garage, having floor space of 1,719 sq. feet has a 1.0629 percent interest in the common elements of the Condominium.

• Each Townhouse Style Apartment Unit, with garage, having floor space of 1,756 sq. feet has a 1.0858 percent interest in the common elements of the Condominium.

• Each Townhouse Style Unit having floor space of 1,882 sq. feet has a 1.1637 percent interest in the common elements of the Condominium.

• Each Townhouse Style Unit having floor space of 1,936 sq. feet has a 1.1972 percent interest in the common elements of the Condominium.

• Each Townhouse Style Unit having floor space of 1,949 sq. feet has a 1.2051 percent interest in the common elements of the Condominium.

The undivided interest in the common elements shall not be separated from the Unit to which it appertains and shall be deemed conveyed or encumbered with the Unit even though such interest is not expressly mentioned or described in the conveyance or other interest.

5.03. — Eminent Domain.

Notwithstanding Section 5.02 above, if a Unit or Units, or the common elements, or any portion thereof is threatened by eminent domain, the following shall apply:

(a) Notification to Eligible Mortgage Holders. The Board of Managers shall give written notice to all Unit Owners and all holders, insurers and guarantors of mortgages in Units whose names appear on the books and records of the Condominium, of any notification received by the Board of Managers advising it of a pending or threatened condemnation of any portion of the Condominium Property.

(b) Action to Contest Condemnation. The Board of Managers shall have the exclusive right to contest any condemnation or eminent domain proceeding which is directed at taking any portion of the common elements or which touches upon, concerns or affects the use of the common elements. No Unit Owner or tenant of a Unit shall impair or prejudice the action of the Board of Managers in contesting such condemnation. Such restriction or prohibition shall not preclude a Unit Owner or tenant of a Unit from contesting the taking in such condemnation or eminent domain proceeding of the Unit owned or rented by such Unit Owner or tenant. In any action contesting a taking by condemnation or eminent domain proceeding, the Board of Managers shall request the court to set forth the allocation of the condemnation award among the Unit Owners affected, taking into account the respective percentage interests in the common elements, the effect of the taking on each Unit affected thereby and any other relevant factors.

(c) Partition Action in Lieu of Continuation of Condominium After Partial Taking by Condemnation. If any condemnation or eminent domain proceeding results in a partial taking of the Property, then the Property or so much thereof as shall remain, shall be subject to an action for partition as provided for by Section 339-t of the Real Property Law, in which event the net proceeds of sale, together with the net proceeds of the award from the condemnation or eminent domain, shall be considered one fund and shall be divided among all the Unit Owners in proportion to their respective common interests; provided, however, that no payment shall be made to a Unit Owner until there has first been paid off out of such Owner’s share, all liens on such Owner’s Unit.

(d) Distribution of Condemnation Awards for Taking of Common Elements. Except as provided in (c) above and except for any award obtained by a Unit Owner for the Unit as further provided in (b) above, in the event that all or part of the common elements are taken in condemnation or eminent domain proceedings, the award from such proceedings shall be paid to an insurance trustee (bank, trust company, law firm or attorney) selected by the Board of Managers if the award is more than $50,000.00 and to the Board of Managers if the award is S50,000.00 or less. (This $50,000.00 limit shall automatically increase each calendar year by 5% over the limit of the previous year.) The Board of Managers or the insurance trustee, as the case may be, shall arrange for the repair, restoration or replacement of such common elements to the extent reasonably possible, and shall disburse the proceeds of such award to the contractors engaged in such repair and restoration in appropriate progress payments.

If there shall be a surplus of such proceeds or if the Board of Managers or insurance trustee cannot reasonably repair, restore or replace the common elements taken, the proceeds shall be distributed among the Unit Owners and the percentage interests in the common elements of the Condominium reallocated among the remaining Units as the court shall have directed, or as provided in (e) below, if there was no direction by the court, taking into account the respective percentage interests in the common elements of the Units affected thereby, the effect of the taking on each Unit affected thereby after the completion of any repair, restoration or replacement by the Board of Managers or insurance trustee and any other relevant factors. Any court direction as to such distribution shall be final. Any Unit Owner or tenant who wishes to contest a determination by the Board of Managers may do so by submitting the matter to the American Arbitration Association for a determination of a fair and proper distribution, or reallocation of percentage interests in the common elements, as the case maybe, which shall be binding on the Board of Managers, and on all Unit Owners and tenants. The cost of such arbitration shall be borne solely by the Unit Owner or tenant submitting the matter for arbitration.

After any determination for reallocation of percentage interests in the common elements, the Unit Owners shall promptly prepare, execute and record an amendment to the Condominium Declaration reflecting such reallocation, which said Amendment need only be executed by Unit Owners affected and by a majority of the Board of Managers.

(e) Condemnation Provisions Subject to Existing Law. All provisions of this Section 5.03 are subject to interpretation in accordance with the law in effect at the time of any condemnation or eminent domain proceeding. Should all or any portion of the provisions of this Section 5.03 be deemed illegal at such time, the distribution of proceeds, rights with respect to partition and allocation of percentage interests in the common elements after a partial taking, shall be as a court of law shall determine.

5.04. — Common Elements to Remain Undivided.

The common elements shall remain undivided and no Unit Owner shall bring any action for partition or division unless otherwise provided by law and unless consented to by all holders of first mortgages on the Units.

5.05. — Abandonment, Encumbrance, Conveyance or Transfer of Common Elements.

The common elements shall not be abandoned, encumbered, conveyed or transferred without the consent of all the Unit Owners, who shall vote upon written ballot which shall be sent to every Unit Owner not less than 30 days nor more than 50 days in advance of the date or initial date of the canvass for voting on the proposed abandonment, encumbrance, conveyance or transfer. No such abandonment, encumbrance, conveyance or transfer shall be made if Eligible Mortgage Holders, as defined in Section 2.01 above, of 51% or more of those Units subject to mortgages held by Eligible Mortgage Holders advise the Board of Managers in writing, prior to the date set for voting on the proposed abandonment, encumbrance, conveyance or transfer that they are opposed to such abandonment, encumbrance, conveyance or transfer which opposition shall not be unreasonable. Written notice of any such proposed abandonment, encumbrance, conveyance or transfer, shall be sent to all Eligible Mortgage Holders not less than 30 days nor more than 50 days prior to the date set for voting on the proposed abandonment, encumbrance, conveyance or transfer.

Notwithstanding the foregoing, the Condominium Board of Managers shall have the power to grant easements, rights of way or licenses for utilities or other similar services (e.g., cable television) across the common elements, with or without consideration.

5.06. — Restricted or Limited Common Elements.

Certain portions of the common elements are irrevocably restricted in use to specified Unit Owners, subject to the right of the Board of Managers to enter upon any restricted area for maintenance, repair or improvement of a Unit or common element and subject to the rules of the Board of Managers (see Article VII of the By-Laws attached hereto as Schedule C {By-Laws Schedule C.pdf}). Any portion of the common elements which is not restricted in use may be used by any Unit Owner. The common elements are not subject to partition nor are they severable from the Units, except in accordance with the Real Property Law. Such irrevocably restricted common elements shall consist of the following:

1. The land which is located directly beneath each Unit (except second floor Garden Apartment Units) is restricted in use to the Owners of such Unit.

2. The patio or portion thereof abutting each Townhouse Unit and the first floor of some Garden Apartment Units and any balcony abutting a second story Garden Apartment Unit are restricted in use to the Owners of the Townhouse Unit(s) or Garden Apartment Unit(s) abutting the patio or balcony or portion thereof.

3. The halls, basement, stairs and stairwells in the buildings containing Garden Apartment Units are restricted in use to the Owners of Units within each such building.

4. The areas immediately in front of garage entrances are restricted in use for parking by the Owner of the Unit of which the garage is part of.

5.07. — Storage Bins.

The Board of Managers, in its sole discretion, shall have the right, but shall not be required, to permit the Owners of a Garden Apartment Unit to construct or to have constructed by or at the direction of the Board of Managers, storage rooms or enclosed storage areas in that half of the Building over which such Owner’s Unit is located. All such construction shall be subject to such rules, regulations and restrictions as the Board of Managers may promulgate from time to time including controls as to the size, location, construction materials and appearance of such storage room or enclosed storage area. No such construction shall violate the requirements of any governmental building code or other ordinance and the entire responsibility for compliance with governmental codes and ordinances with respect to the construction and use of any such storage room or enclosed storage area shall solely be that of the Owner of the Unit for which such room or area is constructed or restricted in use and the Board of Managers shall be held harmless by such Unit Owner for any such violation. No construction, expansion or alteration of any such storage room or enclosed storage area shall be made without the written permission of the Board of Managers. Permission may be requested through the Manager, the Management Agent, if any, or through the President of the Board of Managers, if no Manager or Management Agent is employed. If no response is received from the Board of Managers concerning the request for such permission within 40 days after such request is received by the Board, Manager, Managing Agent or President, the Unit Owner seeking such request may make a second request and if no response is received within 30 days thereafter, the permission shall be deemed granted. Any permission granted or deemed granted for the construction of any such storage room or enclosed storage area shall be subject to the following:

1. that construction be completed within 180 days after such permission is granted or deemed granted,

2. that no such construction be of such size and dimensions as to preclude other Owners of Units in. the Building which are located over such half of the basement from constructing a storage room or enclosed storage area of similar. size and dimensions.

3. that such storage room or enclosed storage areas shall be constructed and maintained at the sole cost and expense of the Owner of the Unit to which use of such storage room or enclosed storage area is to be restricted.

4. that once constructed, such storage room or enclosed storage area shall be deemed to be a Restricted Common Element, restricted in use to the Owner of the Unit for which such storage room or enclosed storage area was initially constructed and as such, the right to use such shall be transferred with such Unit. The storage area may not be removed or disassembled when the Unit is sold.

6.01. — Increases and Decreases in Size and Number of Units.

Any Unit Owner or Owners shall have the right to divide or combine Units owned by such Unit Owner or Owners, so long as:

(i) the combined or divided Unit is no less than 1056 square feet after the combination or division;

(ii) the common interest appurtenant to such Units, after such division or combination, shall equal in total the common interest applicable to the Unit or Units divided or combined prior to combination;

(iii) the written consent of the Board of Managers is obtained pursuant to Sections 6.04 through 6.08 of this Declaration;

(iv) such proposed division or combination is in all respects lawful under the terms and provisions of the Real Property Law of the State of New York in effect at the time of the division or combination; and

(v) such combination is in compliance with all governmental laws, codes, ordinances and regulations.

Among the factors to be considered by the Board of Managers in determining whether or not to consent to such combination are adequacy of the size, shape and location of all Units after such combination, the structural soundness of the Building during and after the performance of the necessary improvements, and any other factors which may affect the appearance or value of the Building, or which are set forth in Section 6.04 hereof. The cost of any such division or combination shall be the sole responsibility of the Owner or Owners of the Units being combined. Any such combination shall become effective upon the recording in the Erie County Clerk’s Office of an amendment to this Declaration (which amendment shall include, as appropriate, any necessary changes to the text of this Declaration and to any plot plan attached hereto), executed by the Board of Managers and by the Owners and mortgagees of the Unit or Units so combined, together with the filing of floor plans of the Unit or Units as combined with the certification by tax authorities of tax lot numbers conforming to the new Unit.

6.02. — No Other Additions or Structural Alterations to Units.

No structural alterations shall be made to a Unit which would impair the structural soundness of any Unit or Building or which would cause an adverse material effect on the exterior appearance or value of the Building in which the Unit is located without the written approval of the Board of Managers, obtained as provided in Sections 6.04 through 6.08 of this Declaration.

6.03. — Alteration and Improvement of Common Elements.

(a) By Board of Managers: The Board of Managers shall have the right, at its option, to make or cause to be made such alterations and improvements to the common elements as, in its opinion, may be beneficial or necessary or which are requested in writing by a Unit Owner(s) and the holders of first mortgages thereon, subject, however to the requirement that, if the alteration or improvement shall cost more than 25% of the then current estimated annual budget (including reserves of the Condominium), such alteration or improvement shall be approved by more than two-thirds (2/3) in number and in common interest of the Unit Owners, voting at a meeting duly called pursuant to the By-Laws. Such expenses shall constitute common expenses. Alterations or improvements costing 25% or less of the Condominium’s then current estimated annual budget may be made by the Board of Managers and the cost thereof shall constitute a part of the common expenses. Before undertaking such work, the Board may require the consent in writing of such Unit Owners and the Eligible Mortgage Holders of such Units, holders of first mortgages thereon, whose rights, in the sole opinion of the Board, may be prejudiced by such alteration or improvement. In all cases of alteration or improvement, the Board of Managers shall comply fully with all governmental codes, laws, ordinances and regulations, including the terms and provisions of the Real Property Law of the State of New York in effect at the time of the proposed alteration or improvement.

(b) By Unit Owners: No Unit Owner shall install any appliance or major appliance in the common elements or make any addition, alteration or improvement to the common elements:

1. which would in any way violate any governmental law, code, ordinance or regulation (including the terms and provisions of the Real Property Law of the State of New York in effect at the time of the alteration or improvement); or

2. without the prior written consent of any Unit Owners directly affected, and of the Board of Managers, obtained pursuant to Sections 6.04 through 6.08 of this Declaration. When the alteration or improvement to the common elements is pursuant to a combination of Units requested by a Unit Owner(s) it shall be governed by Section 6.01 of this Declaration.

6.04. — Submission of Plans to Board of Managers; Approval.

Any addition, alteration or improvement to the Units or common elements proposed by a Unit Owner pursuant to Sections 6.01 through 6.03 above shall require that a plan or plans therefor, in such form as the Board of Managers may require, be submitted to, reviewed and approved by the Board of Managers. The Board of Managers may charge and collect a reasonable fee for the examination of plans submitted for approval, including any fees which may be charged by architects, engineers or attorneys retained by the Board of Managers in connection with the review of such plans.

The Board of Managers may adopt simplified review procedures for any such additions, alterations or improvements which it shall deem minor or for which the submission of plans is not necessary.

The Board of Managers may disapprove such plans for any of the following reasons:

(a) failure of such plans to comply with any protective covenants, conditions and restrictions contained in the Declaration, By-Laws, or Rules and Regulations;

(b) failure to include information in such plans as requested;

(c) objection to the exterior design, appearance or materials of any proposed improvements, including without limitation, colors or color scheme, finish, proportion, style of architecture;

(d) incompatibility of proposed improvements or use of proposed improvements with existing improvements;

(e) failure of proposed improvements to comply with any zoning, building, health, or other governmental laws, codes, ordinances, rules and regulations, including the Real Property Law of the State of New York;

(f) any other matter which in the judgment and sole discretion of the Board of Managers would render the proposed improvements, use or uses inharmonious or incompatible with the general plan of improvement of the Condominium, including any possible adverse impact on the use and enjoyment of the Property by any other Unit Owner(s).

Upon approval or qualified approval by the Board of Managers of any plans submitted pursuant to this Section, the Board of Managers shall notify the applicant in writing of such approval or qualified approval, which notification shall set forth any qualifications or conditions of such approval, shall file a copy of such plans as approved for permanent record (together with such qualifications or conditions, if any), and, if requested by the applicant, shall provide the applicant with a copy of such plans bearing a notation of such approval or disqualified approval. Approval of any such plans relating to the common elements or to any Unit shall be final as to such alterations, modifications or improvements and such approval may not be revoked or rescinded thereafter provided:

1. that the improvements or uses shown or described on or in such plans do not violate any protective covenants, conditions or restrictions set forth in the Declaration, By-Laws, or Rules and Regulations; and

2. that such plans and any qualifications or conditions attached to such approval of the plans do not violate any applicable governmental law, rule or regulations, zoning, building, health or other code or ordinance, including the Real Property Law of the State of New York.

Approval of any such plans shall not be deemed a waiver of the right of the Board of Managers to disapprove similar plans or any of the features or elements included therein if such plans, features or elements are subsequently submitted for use by other Unit Owner(s).

6.05. — Written Notification of Disapproval.

In any case where the Board of Managers disapproves any plans submitted hereunder, the Board of Managers shall so notify the applicant in writing, together with a statement of the grounds upon which such action was based. In any such case, the Board of Managers shall, if requested and if possible, make reasonable efforts to assist and advise the applicant so that acceptable plans can be prepared and resubmitted for approval.

6.06. — Failure of Board to Act.

If any applicant has not received notice from the Board of Managers, approving or disapproving any plans within 90 days after submission thereof, said applicant may notify the Board in writing of that fact. Such notice shall be sent by certified mail, return receipt requested. The plans shall be deemed approved by the Board 30 days after the date of receipt of such second notice, if no decision is rendered by the Board within said 30 day period.

6.07. — Board of Managers’ Right to Promulgate Rules and Regulations.

The Board of Managers may, from time to time, promulgate rules and regulations governing the form and content of plans to be submitted for approval or with respect to the approval or disapproval of certain types of alterations, modifications, or improvements to the common elements or Units; provided, however, that no such rule or regulation shall be deemed to bind the Board to approve or disapprove any plans submitted for approval, or to waive the exercise of the Board’s discretion as to such plans; and provided further that no such rule or regulation shall be inconsistent with the provisions of the Declaration, By-Laws, or any applicable governmental law, code, ordinance, rule or regulation.

6.08. — Applications for Unit and Common Element Improvement Permits to be Executed by Board o f Managers and Indemnification of Board; Insurance.

Any application to any governmental authority to make an installation, addition, alteration or improvement to the common elements or any Unit shall be executed by the Board of Managers only; provided, however, that applications for any such installation, addition, alteration or improvement proposed by a Unit Owner pursuant to Sections 6.01 through 6.03 above shall be at the sole cost and expense of such Unit Owner; and provided further that this Article VI shall in no case be construed to result in the Board of Managers incurring any liability whatsoever to any Unit Owner, contractor, subcontractor, materialmen, architect or engineer on account of such installation, addition, alteration or improvement proposed by a Unit Owner, or to any person having any claim for injury to person or property arising therefrom, and such Unit Owner agrees to indemnify and forever hold the Board harmless for any liability or expenses incurred by the Board in connection therewith, including reasonable attorneys’ fees.

In connection with any installation or work done by a Unit Owner, the Board of Managers may require that the Unit Owner obtain such insurance coverages and/or completion bonds, and in such amounts, as the Board of Managers deems proper. In the event that the Board of Managers deems it necessary to expend funds, either to complete work previously commenced by a Unit Owner or to otherwise protect the appearance, value or structural integrity of the Condominium, such amounts shall become a binding personal obligation of the Unit Owner involved and a lien against the Unit.

6.09. — Liability of Board of Managers.

No action taken by the Board of Managers or any member, subcommittee, employee or agent thereof, shall entitle any person to rely thereon, with respect to conformity with laws, regulations, codes or ordinances, or with respect to the physical or other condition of any Building or other portion of the Property. Neither the Condominium, nor the Board of Managers, nor any member, subcommittee, employee or agent thereof shall be liable to anyone submitting plans to them for approval or to any Unit Owner, or any other person, in connection with any submission of plans, or the approval or disapproval thereof, including without limitation, mistakes in judgment, negligence or misfeasance. Every person or other entity submitting plans to the Board of Managers agrees, by submission of such plans, that no action or suit will be brought against the Condominium or the Board of Managers (or any member, subcommittee, employee or agent thereof) in connection with such submission.

7.01. — Unit Owner’s Access to Unit.

Each Unit Owner shall have a right of ingress and egress over the common element areas to such Owner’s Unit subject only to the reasonable rules and regulations which the Board of Managers of the Condominium may impose from time to time.

7.02. — Utilities, Pipes and Conduits.

Each Unit Owner shall have such easement of access to other Units and to the common elements, and each Unit shall be subject to such easements, as is reasonably necessary for such Unit Owner to maintain, repair and replace, as necessary, such Owner’s Unit including, if any, pipes, wires and conduits running from the meters or equipment servicing such Unit to the Unit. Each Unit Owner shall also have an easement in common with the Owners of all other Units to use, in accordance with present use and present available facilities, all pipes, wires, ducts, cables, conduits, public utility lines and other common elements located in any of the other Units and serving the Unit or Units of such Unit Owner. Each Unit shall be subject to an easement in favor of the Owners of all other Units to use in accordance with present use and present available facilities the pipes, ducts, cables, wires, conduits, public utility lines and other common elements serving such other Units and located in such Unit.

7.03. — Access of Board of Managers.

The Board of Managers, its agents, contractors and employees, shall have an easement and right of access to each Unit to inspect the same, to remove violations therefrom and for installation, maintenance, repair or improvements to any pipes, ducts, wires, cables, chutes, conduits, connections, fittings and public utility lines located or to be located in any Unit and servicing any other Unit, or to make repairs to the Unit to prevent damage to the common elements or to any other Unit. Said easement and right of access shall be exercised (unless in an emergency) at reasonable hours and upon reasonable notice to the Unit Owner involved. The cost of such maintenance, repairs, improvements or replacements shall be a common expense, except as provided in Section 7.02 of the By-Laws. The Board of Managers shall have a right of access to all common elements (irrespective of the restricted nature of such common elements) to remove violations and for inspection, maintenance, repair or improvement.

7.04. — Right of Board of Managers to Grant Easements, Licenses and Permits.

Notwithstanding anything to the contrary which may be contained in this Declaration, the Board of Managers shall have the right to grant permits, licenses, easements and rights of way over the common clement areas for:

(i) utilities and other services (including, but not necessarily limited to, water, gas, electric, telephone, storm sewer, sanitary sewer, drainage and cable television), roadways, walkways and other purposes which the Board of Managers deems necessary or appropriate; and

(ii) the placement of air conditioner compressors to service individual Units in the Condominium.

7.05. — Easement of Necessity.

Each Unit shall have and each Unit shall be subject to all easements of necessity in favor of such Unit or in favor of other Units and the common elements.

8.01. — Voting Rights Based on Interest in Common Elements.

The Owner of each Unit shall be entitled to vote on all matters put to a vote at all meetings of Unit Owners.

9.01. — Allocation and Commencement of Common Charges.

Except as otherwise permitted in this Article or the By-Laws, the common expenses shall be charged by the Board of Managers to the Unit Owners according to their respective percentage interests in the common elements. Notwithstanding the foregoing, the Board of Managers may elect to specifically allocate and apportion expenses between the Owners of Units, based upon the special or exclusive availability or use or control thereof by such Unit Owners of the common elements to which such expenses have been applied. Common charges shall commence on the date of recording of the first deed transferring title to a Unit.

9.02 — Common Charges Are Lien on Unit and Personal Obligation of Unit Owner.

The common charges shall be paid when due. No Unit Owner may be exempted from liability for payment of common charges assessed against such Owner’s Unit by waiver of the use or enjoyment of any of the common elements or by the abandonment of the Unit. All sums assessed as common charges by the Board of Managers of the Condominium, but unpaid, together with any accelerated installments, late charges as may be established by the Condominium By-Laws, interest thereon at such rate as may be fixed by the Board of Managers from time to time, such rate not to exceed the maximum rate of interest then permitted by law, and attorneys’ fees and other costs and expenses incurred in efforts to collect such past due assessments, shall be the personal obligation of the Unit Owner and, to the extent permitted by law, shall constitute a lien upon the Unit prior to all other liens except:

1. tax or assessment liens on the Unit by the taxing subdivision of any governmental authority, including but not limited to State, County, Town and School District taxing agencies; and

2. all sums unpaid on any mortgage of record encumbering the Unit and which is held by an Institutional Mortgagee as defined in Section 2.01 of this Declaration.

A purchaser of a Unit shall be liable for the payment of unpaid common charges assessed against such Unit prior to such purchaser’s acquisition, except that a mortgagee or other purchaser who acquires title at a foreclosure sale, or an Institutional Mortgagee who acquires title to a Unit by a deed in lieu of foreclosure, shall not be liable for, and such Unit shall not be subject to, a lien for the payment of common charges assessed against such Unit, and which became due prior to such acquisition of title. In such event, the unpaid balance of common charges shall be charged to all other Unit Owners as a common expense.

Except as provided above, in the case of any conveyance of a Unit either by voluntary instrument, operation of law or judicial proceeding in accordance with this Declaration or the By-Laws, the grantee of the Unit shall be jointly and severally liable with the former Unit Owner for any unpaid common charges against the latter assessed and due up to the time of the grant or conveyance without prejudice to the grantee’s right to recover from the former Unit Owner the amounts paid by the grantee therefor. “Grantee” as used herein shall not include either an Institutional Mortgagee or a purchaser of a Unit at a foreclosure sale of a mortgage held by an Institutional Mortgagee. No Unit Owner shall be liable for the payment of any common charges accruing subsequent to a sale, transfer or other conveyance by such Owner of such Unit made in accordance with applicable laws or the provisions of this Declaration and the By-Laws.

No Unit Owner may be exempt from liability for payment of common charges assessed against such Owner’s Unit by waiver of the use or enjoyment of any of the common elements or by the abandonment of the Unit. Dissatisfaction with the quantity or quality of maintenance furnished to the Property shall not be grounds for withholding or failure to pay any common charge or special assessment

10.01. — Board of Managers.

The affairs of the Condominium shall be governed and controlled pursuant to the Condominium By-Laws (attached hereto as Schedule C (By-Laws Schedule C.pdf) and made a part hereof) by a Board of Managers who shall be elected and serve and shall have the duties and powers as provided in the By-Laws.

10.02. — Administration.

Subject to the right of assignment as provided in Section 11.08 of this Declaration, the administration of the Condominium Property, including the Buildings and land (the Property) described herein shall be in accordance with the provisions of this Declaration and with the provisions of the Condominium By-Laws.

10.03. — Power of Attorney to Board of Managers.

Each Unit Owner shall grant to the persons who shall from time to time constitute the Board of Managers, an irrevocable Power of Attorney, coupled with an interest, to acquire title to or lease any Unit whose owner desires to surrender, sell or lease the same, or which may be the subject of a foreclosure or other judicial sale, or any other Unit, in the name of the Board of Managers or its designee, corporate or otherwise, on behalf of all Unit Owners, and to convey, sell, lease, mortgage, vote the votes appurtenant thereto or otherwise deal with any such Unit so acquired or to sublease any Unit so leased by the Board of Managers.

10.04. — Acquisition of Units by Board of Managers.

(a) any Unit Owner shall surrender such Unit Owner’s Unit, together with

1. the undivided interest in the common elements appurtenant thereto;

2. the interest of such Unit Owner in any other Units acquired by the Board of Managers or its designee on behalf of all Unit Owners or the proceeds of the sale, or lease thereof, if any; and

3. the interest of such Unit Owner in any other assets of the Condominium (hereafter collectively called the “Appurtenant Interests”) pursuant to the provisions of Section 339-x of the Real Property Law of the State of New York;

or

(b) the Board of Managers shall purchase at a foreclosure or other judicial sale, or in any other manner acquire, a Unit, together with the Appurtenant Interests, title to any such Unit, together with the Appurtenant Interests shall be held by the Board of Managers or its designee, corporate or otherwise, on behalf of all Unit Owners, in proportion to their respective common interests. The lease covering any Unit leased by the Board of Managers, or its designees, on behalf of all Unit Owners, shall be held by the Board, or its designee, on behalf of all Unit Owners in proportion to their respective common interests.

11.01. — All Owners. Tenants and Occupants Subject to Condominium Documents Which Run With the Land.

All present or future Unit Owners, tenants, occupants, or any other person that might use the Units or the facilities of the Property in any manner, are subject to the provisions of the Declaration, the By-Laws and Rules and Regulations of the Condominium as they may be amended from time to time. The acceptance of a deed or conveyance or the entering into of a lease, or the entering into of occupancy of any Unit shall signify that the provisions of this Declaration and the By-Laws and Rules and Regulations of the Condominium are accepted and ratified by such Owner, tenant or occupant, and all of such provisions shall be deemed and taken to be covenants running with the land and shall bind any person having at any time any interest or estate in such Units, as though such provisions were recited and stipulated at length in each and every deed or conveyance or lease thereof.

11.02. — Units to be Properly Maintained.

Unit Owners shall maintain their Units in good order and overall appearance.

11.03. — Mortgages on Units.

Any Unit Owner who mortgages such Owner’s Unit shall promptly provide the Board of Managers with the name and address of the mortgagee.

11.04. — Notice to Mortgagees.

The Board of Managers shall give written notice to the holders of mortgages encumbering Units which notice is required by various provisions of this Declaration and the Condominium By-Laws to those mortgagees which have notified the Board of Managers of their name and address or who have caused the mortgagor/Unit Owner to give such notice.

11.05. — No Nuisances.

No nuisances shall be allowed upon the Property nor shall any use or practice be allowed which is a source of annoyance to residents or which interferes with the peaceful possession and proper use of the Property by its residents.

11.06. — No Immoral or Unlawful Use.

No immoral, improper, offensive or unlawful use shall be made of the Property nor any part thereof and all valid laws, zoning ordinances and regulations of all governmental bodies having jurisdiction thereof shall be observed.

11.07. — Obligation to Maintain Utility Service.

Regardless of whether the Unit is occupied, the owner thereof shall be obligated to maintain sufficient utility service to prevent damage to other Units or to the common elements. If such service is not maintained by the Owner, the Board of Managers shall have the right to immediately arrange for such service, upon such notice to the Owner as is practical under the circumstances and without notice in emergency situations. If such service must be arranged by the Board of Managers, any costs incurred shall be collectible in the same manner as common charges and shall constitute a lien on the Unit involved and a personal obligation of the Unit Owner(s).

11.08. — Rules and Regulations.

Rules and regulations promulgated by the Board of Managers concerning the use of the Property shall be observed by the Unit Owners, provided however, that copies of such rules and regulations are furnished to each Unit Owner prior to the time the said rules and regulations become effective.

12.01. — Amendment.

Except as otherwise provided in this Declaration, this Declaration may be modified, altered, amended or added to at, or pursuant to a vote taken during a specified canvass period after any duly called meeting of Unit Owners provided that:

(a) A notice of the meeting containing a full statement of the proposed modification, alteration, amendment or addition has been sent to all Unit Owners and all Eligible Mortgage Holders as listed on the books and records of the Condominium at least 30 days and not more than 50 days prior to the date set for said meeting; and

(b) 67% or more in number and in common interest of all Unit Owners approve the change; and

(c) the Board of Managers does not, prior to the date established for voting on the proposed change, receive written notification of opposition to the change from Eligible Mortgage Holders of 51% or more of the number of Units subject to mortgages held by Eligible Mortgage Holders; and

(d) an instrument evidencing the change is duly recorded in the Office of the Erie County Clerk. Such instrument need not contain the written consent of the required number of Unit Owners, but shall contain a certification by the Board of Managers of the Condominium that the consents required by this Section 12.01 for such change have been received and filed with the Board of Managers.

12.02. — Amendment by Board of Managers to Correct Errors.

Notwithstanding Section 12.01 above, the Board of Managers may make amendments to this Declaration, consistent with the current provisions of the Condominium Act and this Declaration to correct omissions or errors, which amendments shall not adversely modify substantial rights of any Unit Owner or Eligible Mortgage Holder without the written permission of such Unit Owner or Eligible Mortgage Holder. Such amendment(s) need only be signed by the Board of Managers.

12.03. — Termination.

The Condominium shall not be terminated or abandoned except as provided for by law. In addition to any requirements of law, termination shall require:

1. the consent of at least 80% of all Unit Owners in number and in common interest; and

2. the approval of Eligible Mortgage Holders of at least 67% in number and common interest of all Units subject to mortgages held by Eligible Mortgage Holders except that where the termination is because of substantial destruction or condemnation of the Condominium Property, such termination shall require the approval of only 51% in number and common interest of all Units subject to mortgages held by Eligible Mortgage Holders.

13.01. — Service of Process.

Service of process on the Unit Owners in any action with relation to the common elements shall be made upon: Board of Managers of the Harrogate Square or on the Secretary of State as agent of the Board of Managers by personally delivering to and leaving with him or her or his or her deputy, or with any person authorized by the Secretary of State to receive such service, at the office of the Department of State in the City of Albany, duplicate copies of such process together with the statutory fee, which shall be a taxable disbursement. The Condominium’s Board of Managers shall also file with the Secretary of State the name and post office address within or without this State to which the Secretary of State shall mail a copy of any process against it served upon the Secretary of State and shall update the filing as necessary.

13.02. — Invalidity.

The invalidity of any provision of this Declaration shall not be deemed to impair or affect in any manner the validity, enforceability or effect of the remainder of this Declaration and, in such event, all of the other provisions of this Declaration shall continue in full force and effect as if such invalid provision had never been included herein.

13.03. — Waiver.

No provision contained in this Declaration shall be deemed to have been abrogated or waived by reason of any failure to enforce the same, irrespective of the number of violations or breaches which may occur.

13.04. — Captions.

The captions herein are inserted only as a matter of convenience and reference, and in no way define, limit or describe the scope of this Declaration nor the intent of any provision hereof.

13.05. — Gender.

The use of the masculine gender in this Declaration shall be deemed to refer to the feminine gender whenever the context so requires.