Hotel on the Cay

Declaration of Partial Leasehold Ownership Plan
Establishing
The Hotel on the Cay
A Time-Sharing Vacation Ownership Plan

Oliver Plunkett (thereinafter referred to as the "Declarant"), being the sole lessee of the real property and sole owner of the leasehold improvements hereinafter described, does hereby make, declare and establish this Declaration as and for a horizontal property regime and plan of time-sharing vacation ownership plan with respect to the property.

WHEREAS, the Declarant is the assignee-tenant of a certain Lease Agreement (hereafter referred to as the "Ground Lease") dated April 24, 1964, and with a remaining term in excess of 33 years from the date of this Declaration, made by the Government of the Virgin Islands, as Landlord, recorded in the Office of the Recorder of Deeds for St. Croix, U.S. Virgin Islands, on May 5, 1964 at PC 17M, page 304, Document No. 1092, as amended by Amendment No. 1 to said Lease dated December 30, 1958, recorded on January 13, 1969 at PC 94M, page 64, Document No. 78, as assigned by instrument dated July 30, 1975, recorded on November 7, 1975 at PC 222M, page 359, Document No.3693 and as further assigned to the Declarant by instrument dated June 15, 1979, recorded on June 19, 1979 at PC 271M, page 148, Document No. 2892; and

WHEREAS, the Declarant desires to submit a portion of his leasehold estate in the land described herein, and his ownership interest in some, but not all, of the leasehold improvements on such land, to a horizontal property regime (hereinafter referred to as "timesharing vacation ownership plan"); and

WHEREAS, the particular partial leasehold ownership plan created hereunder is for the exclusive purpose of promoting the hotel, tourist and vacation business on St. Croix, and, in particular, to provide individuals with the right to own a leasehold estate for a term of 30 years (amended 11/25/80) (but in no event for a term in excess of said Ground Lease) in a particular apartment unit for a specific period of time each year, which right is referred to herein as a "time-share leasehold estate"; and

WHEREAS, it is desired to implement a plan for the Hotel on the Cay to promote future security for the Hotel in the ordinary course of hotel and tourist business.

NOW, THEREFORE, effective at the time of execution and recordation of this Declaration with the Recorder of Deeds for the district where the property is situated, and continuing for the remaining term of said Ground Lease, the Declarant does hereby submit all of his right, title and interest in and to the portion of the land and certain of these improvements described herein to time-share vacation ownership pursuant to the provisions of this Declaration and hereby declares that allow the restrictions, reservations, covenants, conditions, and easements contained herein shall constitute covenants running with the land, or equitable servitudes upon the land, as the case may be, shall rule for the term of said Ground Lease and shall be binding upon all parties or persons subsequently owning property interests in the leasehold estate. Both the benefits granted and the burdens imposed shall run with each apartment unit and the interest in the common property as interest from the Declarant, all lessees and assigns, and all parties claiming by, through or under such persons, agree to be bound by the following provisions:

• 1. ESTABLISHMENT OF PARTIAL LEASEHOLD VACATION OWNERSHIP PLAN
  
  
  • 1.A. NAME. The name by which this time-sharing vacation ownership plan is to be identified is:
    THE HOTEL ON THE CAY, A TIME-SHARING VACATION OWNERSHIP PLAN
    
    
  • 1.B. DESCRIPTION OF THE LAND. The land, which is leased by the Declarant, on which the buildings and improvement are located, and which by this instrument is submitted to the partial leasehold form of ownership is described as follows:

    That portion of the Protestant Cay, in the harbor of Christiansted, St. Croix, United States VirginIslands (more specifically described on the survey attached hereto and made a part hereof as EXHIBIT "A"), upon which the "Main Building" and "Harbor Master House" (described on Sheet #1 of Exhibit "D" attached hereto) are situated. Said land, buildings and improvements thereon and furnishings therein are herein referred to as the "leasehold property". The remainder of The Protestant Cay is not hereby submitted to the provisions of the time-sharing vacation ownership plan and is not affected by this Declaration, except for applicable easements or equitable servitudes created hereunder.

  • 1.C. VALUES. The value of the leasehold property is equal to the value of the physical components, estimated to total approximately $2,000,000.00 plus the value of the intangible rights of exclusive use, occupancy and possession appurtenant to the physical components and to be enjoyed by each purchaser of a unit-week for the duration of the particular time-share estate, estimated to total approximately $4,000,000.00 net of all reasonable costs necessary to create, maintain and protect such rights. The value of each apartment unit would be equal to proportionate amount of the aforementioned values based upon the exclusive use-square footage encompassed by the particular apartment unit plus the appurtenant share of the common elements and limited common elements.
    
    
  • 1.D. PERCENTAGES. The percentage of undivided interest in time common areas appertaining to each apartment unit and its time-share partial leasehold owners for all purposes, including voting, the percentage share of responsibility for common expenses of the time-sharing vacation ownership plan and the percentage of ownership of common surplus is set forth on EXHIBIT "B" attached hereto and made a part hereof. The percentage of votes by the Association or by the owners of the time-share estates which shall be determinative of whether to rebuild, repair, restore or sell the leasehold improvements in the event of damage or destruction of all or any part of the leasehold improvements is set forth in paragraphs10.C and 16 of this Declaration.
    
    
  • 1.E. USE. The purpose for which the leasehold property, including the buildings and each of the apartments, is intended and restricted as to use is for the ordinary course of the hotel and tourist business.
    
    
  • 1.F. WAIVER OF PARTITION. The Declarant and each owner of any partial leasehold interest in a time-share unit, by acceptance of a conveyance or instrument transferring an interest, waives any right of partition or any interest in the leasehold estate, the common elements and/or limited common elements,, under the laws of the U.S. Virgin Islands as they exist now or hereafter, until this time-sharing vacation ownership plan is terminated according to the provisions hereof or by law.
    
    
• 2. DEFINITION OF TERMS: As used in this Declaration, unless the context otherwise requires:
  
  
  • 2.A. APARTMENT UNIT means one of the fifty-five (55) (amended 11/25/80) enclosed residential spaces, intended for independent use and possession in the two buildings (the "Main Building" and the Harbor Master House") which are a part of the leasehold property, together with an undivided share in the common elements and limited common areas. The term "apartment unit" as used in this Declaration shall also include the entire entry level of the Harbor Master House (as described on Sheet #5 of EXHIBIT"D") which shall be treated as one apartment unit.
    
    
  • 2.B. ASSOCIATION means the corporation not for profit, organized and existing under the laws of the Virgin Islands, responsible for the operation, management and maintenance of the time-sharing vacation ownership plan, with membership consisting of all owners of partial leasehold time-share estates (lessees of apartment units). The name of the Association shall be "The Hotel on the Cay Time-Sharing association, Inc."
    
    
  • 2.C.COMMON EXPENSES means and includes all sums lawfully assessed against the owners of time-share estates by the Association for the expenses of operating and maintaining the leasehold premises, making repairs and replacements to apartment units, common elements and limited common elements, carrying out the powers and duties of the Association, and any other expenses designated as common expenses by this Declarant or the By-Laws. The common expenses of the leasehold premises shall be borne by owners of time-share estates as set forth in EXHIBIT "B".
    
    
  • 2.D. COMMON SURPLUS means the excess of assessments and other Association receipts over common expenses. Any common surplus of the Association will be owned by the owners of time-share estates as set for in EXHIBIT "B".
    
    
  • 2.E. TIME-SHARE ESTATE means a partial leasehold interest in a particular apartment unit with the exclusive right of use, possession and occupancy of the apartment unit regularly circulating among the various owners of time-share estates in such apartment unit in accordance with a fixed time schedule. An example of the time schedule is attached hereto as EXHIBIT "C". Each partial leasehold interest shall run for a term to be specified in the document of conveyance or assignment, which term shall neither be less than five (5) years or more than thirty (30) (amended 11/25/80) years from the date such interest is purchased, but in no event for a term longer than the term of the Ground Lease referred to herein. Each time-share estate is an independent interest in real estate and is not a tenancy in common or other concurrent undivided interest. A time-share estate in a particular apartment unit may be conveyed or assigned as an independent property right capable of independent use and partial leasehold ownership, subject to the provisions of this Declaration, the same as other leasehold interests in property. Each owner of a time-share estate in an apartment unit shall also own an undivided leasehold interest in the limited common elements as an appurtenance to the ownership of each such time-share estate in the time-sharing vacation ownership plan.Said interests shall be deemed to be conveyed, assigned or encumbered with their respective apartment unit even though the description in the instrument of conveyance, assignment or encumbrance may refer only to the leasehold interest in the apartment unit. Any attempt to separate the leasehold interest in an apartment unit from the undivided interest in the common elements or limited common elements appurtenant to each apartment unit shall be null and void. Notwithstanding the fact that a time-share estate is deemed herein to be property wholly separate from other time-share estates conveyed in the same apartment unit, all of the rights, obligations and liabilities inherent in such ownership hereunder shall be in full force and effect throughout the calendar year.
    
    
  • 2.F. UNIT-WEEK means the minimum duration of a time-share estate which is a seven (7)day period of use, possession and occupancy, commencing at 12:00 o"clock noon on Saturday and ending at 12:00 o"clock noon on the following Saturday. Unit-weeks are numbered one (1) through fifty-two (52). A Total of two thousand eight hundred and sixty (2,860) (amended 11/25/80) unit-weeks are created by this Declaration, with fifty-five (55) of such unit weeks set aside for cleaning and maintenance and treated as limited common elements appurtenant to the particular apartment units.
    
    
• 3. DESCRIPTION OF THE BUILDINGS, EACH APARTMENT UNIT, COMMON ELEMENTS,LIMITED COMMON ELEMENTS AND EASEMENTS.
  
  
  • 3.A. BUILDINGS. The "Main Building" situated on said land consists of two (2) floors or stories for a portion of the building and three (3) stories for the remainder of the building (see Sheet #7 of EXHIBIT "D" attached hereto), without a basement, with forty-seven (47) apartment units, and constructed primarily of masonry and poured concrete with reinforcing steel. The "Harbor Master House" situated on said land consists of two (2) floors or stories (see Sheet #8 of EXHIBIT "D" attached hereto), without abasement, with the upper level with eight (8) apartment units, and constructed primarily of masonry and poured concrete (amended 11/25/80).
    
    
  • 3.B. APARTMENT UNITS. The apartment number of each apartment unit, a description of it's location, layout, dimensions, approximate area, number of rooms and immediate common area to which it has access, as well as the vertical elevations and cross-sections of the apartments are set forth on the floor plans and elevations attached hereto and made a part hereof as Sheets #12 through #15 of EXHIBIT "D". The space within the apartment units may not be subdivided. Each apartment unit includes that part of the building that lies within the following boundaries:
    
    
    • 3.B.1. HORIZONTAL UPPER AND LOWER BOUNDARIES. The upper boundary shall be the horizontal plane of the upper level of the finished ceiling materials. The lower boundary shall be the horizontal plane of the undecorated finished floor. The upper and lower boundaries of the apartment unit shall extend to an intersection with the perimetrical boundaries.
      
      
    • 3.B.2. PERIMETRICAL BOUNDARIES. The perimetrical boundaries of the apartment unit shall be the vertical planes of the undecorated finished interior of the walls bounding the units extended to intersections with each other and the upper and lower boundaries; however, where there are adjacent units with a common wall, the perimetrical boundaries, as they relate to that common wall, shall be the center line of each common dividing wall.
      
      
    • 3.B.3. EXCEPTION. The boundaries for the entry level of the Harbor Master House,deemed an apartment unit for the purpose of this Declaration, shall extend as provided in paragraphs 3.B.1 and 3.B.2. regardless of whether the ceiling or walls extend to encompass the entire area described on Sheet#5 of EXHIBIT "D". In other words, the outdoor restaurant and lounge area is included in the description of the apartment unit comprising the entry level of the Harbor Master House.
    
    
    
  • 3.C. COMMON ELEMENTS. The common elements of the time-sharing vacation ownership plan consists of that portion of the leased land upon which the aforementioned buildings are situated (see the site plan attached at Sheet #1 of EXHIBIT "D"), those portions of the buildings which enclose the apartment units defined above and other areas designated at the building layouts attached as Sheets #2 through #6 of EXHIBIT "D" along with the building"s foundations, columns, girders, beams,supports, main walls, roofs, halls, corridors, lobbies, stairs, stairways, fire escapes, entrances, exits and storage spaces. The common elements also include the property and installations necessary for the furnishing of central services and utilities to more than one apartment unit or to the common elements, such as power, light, gas, water collection, storage and distribution system, hot and cold water, refrigeration, air conditioning, incinerating, sewage, tanks, pumps, motors, fans, compressors, ducts and all other apparatus and installations. The common elements also include easements through apartment units for conduits, ducts,plumbing, wiring and other facilities for the furnishing of utility service to apartment units, common elements and limited common elements. The common elements shall further include all personal property held and maintained for the joint use and enjoyment of all the owners of time-share estates.
    
    
  • 3.D. LIMITED COMMON ELEMENTS. The limited common elements consist of those items which are reserved for use by the lessees of a certain apartment unit to the exclusion of the lessees of other apartment units, such as furniture and furnishings. With respect to the leasehold time-share estates created for a particular apartment unit, the limited common elements as among owners thereof include the time period (unit week) set aside for cleaning and maintenance.
    
    
  • 3.E. EASEMENTS ON TIME-SHARING VACATION OWNERSHIP PLAN PROPERTY.Easements are hereby created on the time-sharing vacation ownership plan property to permit all owners of time-share estates to have, at any time during their particular unit-weeks, as an appurtenance to their apartment units, the unrestricted right of access to their apartment units from any location designated as a common element, as well as the unrestricted right of access to the public areas bounding the leasehold premises. Easements through the time-sharing vacation ownership plan property are hereby reserved in order to provide any and all utility services deemed necessary for the leasehold premises.
    
    
  • 3.F. OTHER EASEMENTS. Nonexclusive easements are hereby created on all the land surrounding the time-sharing vacation ownership plan property, which land comprises the balance of The Protestant Cay, in the harbor of Christiansted, St. Croix, United States Virgin Islands. All owners of time-share estates shall have, at any time during their particular unit-weeks, as an appurtenance to their apartment units, the unrestricted right of access to all portions of said land the right to use and enjoy the recreational facilities located thereon including but not limited to the beach areas, tennis courts, swimming pool and boat dock; provided however, that (1) the use of such facilities may be subject to rules and regulations established by the Declarant, his successors or assigns, from time to time, (2) the right of access may be revoked from time to time as to certain areas specifically posted as being private property, (3) the use of certain facilities,such as the tennis courts, may be subject to reasonable user fees, (4) the Association hereby agrees to be responsible for a portion of the cost of maintaining such land and facilities (to be treated as a common expense of the Association), with the cost percentage to be agreed upon from time to time between the Association and the Declarant, his successors or assigns, based upon usage of the land and facilities, and (5)the right of access may be revoked or diminished to the extent that the Declarant decides to construct new apartment units as set forth in paragraph 20.
  
  
  
• 4. ADMINISTRATION OF THE TIME-SHARING VACATION OWNERSHIP PLAN
  
  
  • 4.A. CREATION OF ASSOCIATION. The Association referred to in paragraph 2.B is hereby formed. The Association shall have any and all powers granted by law and this Declaration to effectuate its purpose of operating, managing and maintaining the time-sharing vacation ownership plan property on behalf of all the owners of time-share estates. The Association shall not have or issue shares of stock. No dividends shall ever be paid and no part of the assets, surplus or income of the Association shall be distributed to its members, officers, or members of its Board of Directors. The Association may pay compensation in reasonable amounts to employees, members, officers or members in conformity with its purpose and to the extent not prohibited by By-Laws. In the event of dissolution of the Association, all of its assets, after payment of its liabilities, shall be distributed to such one or more nonprofit corporations,societies or organizations having purposes deemed by a majority of the Board of Directors to be similar to those of this Association and, if none are deemed to exist, then to nonprofit corporations, societies or organizations devoted to the promotion of aesthetic, cultural or educational purposes.
    
    
  • 4.B. POWERS AND DUTIES OF THE ASSOCIATION. The Association shall have all the powers and duties incident to the operation of the time-sharing vacation ownership plan as set forth in this Declaration and the By-Laws. True and correct copies of the By-Laws of said Association are attached hereto and a part hereof as EXHIBIT "E".
    
    
  • 4.C. MODIFICATION OR AMENDMENT OF BY-LAWS. Modifications of amendments to the By-Laws of the Association will be valid only if duly recorded in the Office of the Recorder of Deeds for St. Croix, and if such amendment does not affect or impair the validity or priority of the record owner of a time-share estate or any mortgage covering any apartment unit.
    
    
  • 4.D. TRANSFER OF ASSOCIATION CONTROL. The transfer of Association control shall be in accordance with the By-Laws of the Association.
    
    
• 5. MEMBERSHIP IN ASSOCIATION AND VOTING RIGHTS. The qualification of members,the manner of their admission to membership, termination of membership and voting of members of the Association shall be as follows:
  
  
  • 5.A.QUALIFICATIONS. An owner of a partial leasehold time-share estate in the time-sharing vacation ownership plan shall be a member of the Association, and no other persons or entities shall be entitled to membership. The Declarant shall be deemed owner for all purposes for each time-share estate of unit-week to which the Declarant holds an ownership interest. The membership of any person shall be automatically terminated upon divestiture of such person"s entire ownership interest in all of such person"stime-share estates.
    
    
  • 5.B. INTERESTS OF MEMBERS. The interests of a member in the funds and assets of the association cannot be assigned, hypothecated or transferred in any manner except as an appurtenance to a time-share estate. The funds and assets of the Association shall belong solely to the Association subject to the limitation that the same be expended, held or used for the benefit of the membership and for the purposes authorized herein, in the By-Laws of the Association.
    
    
  • 5.C. VOTING. There shall be a total of two thousand eight hundred and five (2,805)(amended 11/25/80) votes to be cast by the owners of time-share estates (2,860 (amended 11/25/80) unit weeks less 55 unit-weeks set aside for cleaning and maintenance for all apartment units except the Harbor master entry level). Such votes shall be apportioned and cast as follows:
    
    
    • 5.C.1. ALLOCATION OF VOTES. On all matters on which the membership shall be entitled to vote, each unit-week shall be allocated one vote which may be exercised or cast by the owner of such unit-week in the manner provided in the By-Laws hereafter adopted by the Association.
      
      
    • 5.C.2. NO VOTE FOR UNIT-WEEKS OWNED BY ASSOCIATION. Where a unit-weeks owned by the Association, no vote shall be allowed for such unit-week, nor shall such unit-week be considered in determining a quorum or percentage of votes required under this Declaration or the documents related hereto.
      
      
    • 5.C.3. UNIT-WEEKS OWNED BY MORE THAN ONE PERSON. Where a unit-week is owned by more than one person all the owners thereof shall designate in writing an individual who shall be entitled to cast the vote or to make decisions on behalf of all of such owners.
  
  
  
• 6. BOARD OF DIRECTORS OF THE ASSOCIATION. All of the affairs, policies, regulations and property of the Association shall be controlled and governed by the Board of Directors of the Association, consisting of not less than three (3) or more than fifteen (15) persons who are all to be elected annually by the members entitled to vote. All persons elected to the Board of Directors shall be members of the Association. If a time-share estate is owned by a corporation, any authorized representative, officer or employee of such owner corporation may be elected a Director.
  
  
• 7. ADMINISTRATION OF COMMON EXPENSES, ASSESSMENTS, COLLECTION LIENS AND ENFORCEMENT.
  
  
  • 7.A. ANNUAL BUDGETS. The Board of Directors of the Association shall approve annual budgets in advance for each fiscal year. The budgets shall project anticipated receipts and estimated common expenses in sufficient detail and shall include replacement reserves and a reasonable operating reserve. Failure of the Board to include any item in the annual budget shall not preclude the Board from levying an additional assessment as to said item during any fiscal year.
    
    
  • 7.B. ASSESSMENTS. After adoption of a budget and determination of the annual assessment per unit-week, the Association shall assess such sum by promptly delivering or mailing notice thereof to each member at the most recent address shown on the records of the Association. The annual assessment shall be due and payable in advance to the Association on the same day each fiscal year. Special assessments for emergencies and other matters are to be made in accordance within the provisions of the By-Laws of the Association. In the event that during the year in which the time-sharing vacation ownership plan is established, real property taxes are assessed against the leasehold property as a whole, such taxes shall be charged against the individual owners of time-share estates in the same proportion as their charges for common expenses. The taxes charged against the unit-week owner shall be prorated by and between the Declarant and the unit-week owner from the date of sale of the respective unit-week.
    
    
  • 7.C. LIABILITY FOR ASSESSMENT. Every owner on a time-share estate shall be liable for all assessments coming due during the period of ownership. In any conveyance or assignment the transferee shall be jointly and severally liable with the transferor for all unpaid assessments against the transferor for the share of the common expenses up to the time of such conveyance, without prejudice to any rights of the transferee to recover from the transferor the amounts paid by the transferee thereof. Each one of multiple owners of a time-share estate shall be jointly and severally liable for the payment of all assessments levied against their particular apartment unit. The liability for any assessment or portion thereof may not be avoided by an owner"s waiver of the use and enjoyment of any common elements of the time-sharing vacation ownership plan or by abandonment of the apartment unit against which the assessment is made.
    
    
  • 7.D. INTEREST ON ASSESSMENTS. Assessments not paid when due shall bear interest from the due date until paid at the rate of ten percent (10%) per annum, provided, however, that in the event such rate of interest is below the normal cost of money to the Association at the time of assessment as a result of economic factors unforeseen as of the date of this Declaration, then the Association shall have the right to increase said interest rate but not in excess of the highest rate allowed by law. All payments on account shall be first applied to interest due and then to the assessment amount first due.
    
    
  • 7.F. ASSESSMENT LIEN. The Association shall have a lien on each apartment unit for any unpaid assessments, interest thereon, advances, costs and reasonable attorney"s fees incurred by the Association incident to the collection of such assessment or enforcement of such lien. Said lien shall be effective without filing of a notice in the Office of the Recorder of Deeds for St. Croix of a Claim of Lien. The Board may, at its option, file a Claim of Lien in the Recorder of Deeds Office and said lien shall continue in effect until all sums secured by the lien shall have been fully paid. Such Claims of Lien shall include only assessments which are due and payable when the Claim of Lien is recorded. Such Claims of liens shall be signed and verified by an officer or agent of the Association, and shall then be entitled to be recorded. Upon full payment, the party making payment shall be entitled to a release of lien. The Board of directors may take such action as it deems necessary to collect assessments, by personal action or by enforcing and foreclosing said lien, and may settle and compromise the same if in the best interest of the association. Filing of one action shall not be a bar to the filing of other actions. A suit to recover a monetary judgment for unpaid assessments may be maintained without waiving the lien securing the same.The Association shall have the right to assign its claim and lien rights for the recovery of any unpaid assessments to any third party. (Approved June 7, 2002)
    
    
  • 7.G. FORECLOSURE. The leasehold interests of all unit owners who are delinquent in payment of maintenance fees and/or special assessments for two (2) consecutive years shall terminate upon notice and without further action on the part of the Board of Directors. Unit Owners shall be provided notice of termination by the Board no later than ninety (90) days after the due date for the second consecutive year. Notice shall be mailed to the Unit Owner to the last known address of the Unit Owner by U.S. Mail return receipt requested. The Leasehold interest of the Unit Owner will terminate thirty days after the mailing of the notice, if the maintenance fees or special assessments are not brought current within thirty days of the date mailed. (Approved June 7, 2002)
    
    
  • 7.H. DECLARANT"S OBLIGATION FOR COMMON EXPENSES. By virtue of the guarantee and obligations by the Declarant in this Paragraph 7.H., the Declarant shall be excused from the payment of its shares of the common expenses and assessments related thereto on unit-weeks it owns in the said time-sharing vacation ownership plan for the following period: For the period of time commencing with the date of the recording of this Declaration and terminating on December 31, 1980, during which period of time the Declarant guarantees to each Purchaser of a time-share estate that the assessment for common expenses shall not increase over the dollar amount set forth in the Operating Budget attached hereto as exhibit "F", and obligates himself to pay any amount of common expenses incurred during said period of time and not produced by the assessments at the guaranteed level receivable from other owners of time-share estates.
    
    
• 8. RESPONSIBILITY FOR MAINTENANCE AND REPAIR.
  
  
  • 8.A. APARTMENT UNITS. Except as provided in Paragraph 9.C. of this Declaration, the association shall bear the costs of, be responsible for and treat as a common expense the maintenance, repair and replacement of all furnishings, furniture, electrical and plumbing fixtures, appliances or equipment, any and all wall and floor surfaces, ceiling materials, painting, decorating, screening, windows, doors and all other items which the Association may desire to place or maintain in the apartment units.
    
    
  • 8.B. COMMON ELEMENTS AND LIMITED COMMON ELEMENTS. Except as provided in Paragraph 9.C. of this Declaration, the Association shall be responsible for and treat as a common expense the maintenance, repair or replacement of all of the common elements as defined in paragraph 3.C. and all of the limited common elements as defined in Paragraph 3.D.
    
    
  • 8.C. ENFORCEMENT OF MAINTENANCE. In the event the Association fails to maintain a apartment units, the common elements or the limited common elements as required herein, any owner of a time-share estate or the Association itself shall have the right to proceed in a court of equity to seek compliance with the provisions hereof.
    
    
  • 8.D. CONTRACT FOR MAINTENANCE, MANAGEMENT OR OPERATION. The board of Directors of the Association may enter into a contract with any firm, person or corporation for the maintenance, management or operation of the time-sharing vacation ownership plan. Any contract for maintenance, management or operation of the time-sharing vacation ownership plan or its property entered into while the Declarant is in control of the Association may be cancelled by a majority vote of the members of the Association.
  
  
  
• 9. TIME-SHARE ESTATE OWNER"S LIABILITY.
  
  
  • 9.A. LIABILITY FOR INJURIES AND DAMAGES. The owner of a time-share estate shall have no personal liability for any damages caused by the acts or negligence of the Association. A time-share estate owner shall be liable for injuries or damages resulting from an accident in his own apartment unit during his particular unit-week to the same extent and degree that the owner of a house would be liable for an accident occurring within his house.
    
    
  • 9.B. LIABILITY FOR COMMON EXPENSES. The liability of the owners of a time-share estate for common expenses shall be limited to the amounts for which they are assessed from time to time.
    
    
  • 9.C. LIABILITY FOR MAINTENANCE, REPAIR OR REPLACEMENT. The expenses of maintenance, repair or replacement of items referred to in Paragraph 8.A and 8.B. which are not covered by insurance and which are made necessary by the acts or negligence of any time-share estate owner, or any person acting by or through any owner (such as a tenant, licensee or invitee), whether or not such expenses are to have been paid by the Association as part of the common expenses, shall be borne by the said owner.Each time-share owner shall be bound by the decision of the Board of Directors as to the issue of liability for such intentional or negligent conduct, which decision shall be made after a special meeting at which the time-share estate owner may present facts relating to the infliction of damage.
  
  
  
• 10. INSURANCE COVERAGE; REPAIR AND RECONSTRUCTION AFTER CASUALTY. The insurance, other than title insurance, which shall be carried upon the leasehold premises property shall be governed by the following provisions:
  
  
  • 10.A. AUTHORITY TO PURCHASE: NAMED INSURED; NAMED INSURED; INSURER. All insurance policies upon the time-sharing vacation ownership plan property shall be purchased by the Association. The named insured shall be the Board of Directors of the Association, as trustee for each of the time-share estate owners in the percentages referred to in EXHIBIT "B", without naming them or their partial leasehold mortgages. Provisions shall be made for the issuance of the mortgage endorsements and memoranda of insurance to the partial leasehold mortgages of time-share estate owners. Such policies and endorsements shall be deposited with the Board of Directors of the Association. Time-share estate owners may obtain insurance coverage at their own expense upon their own personal property and for their personal liability. The insurer shall be an insurance company authorized to do business in the U.S. Virgin Islands.Premiums on insurance policies purchased by the Association shall be paid by the Association as a common expense. Any funds necessary to cover any deductible amount under an insurance policy against which a claim is made shall also be a common expense.
    
    
  • 10.B. COVERAGES.
    
    
    • 10.B.1. CASUALTY. The building and all improvements upon the land, including, but not limited to, all common elements and limited common elements shall be insured to an amount equal to the maximum insurance replacement value as determined annually by the Board of Directors. Such coverage shall afford protection against loss or damage by fire, vandalism, malicious mischief and other hazards covered by a standard extended coverage endorsement, and such other risks as from time to time shall be customarily covered with respect to buildings similar in construction, location and use.
      
      
    • 10.B.2. PUBLIC LIABILITY in such amounts and with such coverage as shall be required by the Board of Directors of the Association, including hired automobile and non-owned automobile coverages, and with cross-liability endorsements to cover liabilities of the time-share estate owners as a group to a particular owner.
      
      
    • 10.B.3. BUSINESS INTERRUPTION INSURANCE to assure that owners of time-share estates and other users of the time-sharing vacation ownership plan property will be furnished with vacation accommodations in the event any portion of the time-sharing vacation ownership plan becomes untenable.
      
      
    • 10.B.4. WORKMEN"S COMPENSATION policy to meet the requirements of law.
      
      
    • 10.B.5. SUCH OTHER INSURANCE as the Board of Directors of the Association shall determine from time to time to be desirable.
    
    
    
  • 10.C. RECONSTRUCTION OR REPAIR AFTER CASUALTY. Unless it is determined pursuant to paragraph 16 of this Declaration the time-sharing vacation ownership plan is to be terminated, any damage to the time-sharing vacation ownership plan property, including the building, common elements and limited common elements, is to be immediately reconstructed or repaired by the Association substantially in accordance with the plans and specifications for the original building and facilities. Any insurance proceeds remaining after reconstruction or repair shall be treated as common surplus and any deficiency in the funds necessary for reconstruction or repair shall be treated as a common expense which may require a special assessment against owners of time-sharing estates. The Board of Directors of the Association is hereby irrevocably appointed agent and attorney-in-fact for each owner of a time-share estate and for each holder of a lien against time-share estate with power to adjust any loss and settle all claims arising under insurance policies purchased by the Association and to execute and deliver released upon the payment of claims.
    
    
  • 10.D. FAILURE TO RECONSTRUCT. If it is determined pursuant to Paragraph 16 that the time-sharing vacation ownership plan is to be terminated rather than reconstructed, insurance proceeds shall be distributed to owners of time-share estates, and/or their leasehold mortgages and the Declarant as the owner of any reversionary interests, on a pro rata basis taking into consideration the replacement value of the leasehold premises, the remaining lease terms for time-share estates, the remaining term for the Ground lease, the percentages set forth on EXHIBIT "B" and any other factors which the Board of Directors deems relevant.
    
    
  • 10.E. EXPOSURE TO LIABILITY. In any legal action in which the Association may be exposed to liability in excess of insurance coverage protecting it and the owners of time-share estates, the Association shall give notice of the exposure within a reasonable time to all such owners who may be exposed to the liability and they shall have the right to intervene and defend.
  
  
  
• 11. OBLIGATIONS RESPECTING GROUND LEASE. The Declarant and the Association shall each be responsible for their pro rata share of the payments due pursuant to the Ground Lease, which shares shall be determined on the basis of the total assessments and other receipts of the Association for each year compared to the total receipts generated on the land covered by the Ground Lease (including Association receipts, restaurant and lounge receipts and recreational facilities receipts). The Declarant and the association shall be jointly responsible for compliance with all the other terms of said Ground Lease. In the event either party causes a default under the Ground Lease, the other party shall have the right to cure such default and recover from the other party any amounts incurred to effectuate such cure including reasonable attorney"s fees and interest at the maximum rate permitted by law. Any and all payments made pursuant to this paragraph shall be treated as a common expense of the Association.
  
  
• 12. USE RESTRICTIONS. Each apartment unit as well as all common elements and limited common elements are hereby restricted to residential and commercial uses within the limits permitted by all laws, zoning ordinances and regulations of all governmental authorities having jurisdiction over the time-sharing vacation ownership plan property. Reasonable regulations concerning the use and occupancy of the time-sharing vacation ownership plan property may be made and amended from time to time by the Board of directors of the Association. A violation of such regulations shall be enforced as if it were a violation of the provisions of this Declaration. No owner of a time-share estate shall make any alterations or modifications to any apartment unit, to the common elements or limited common elements without prior written approval by the Association of plans and specifications. Until the Declarant has closed all of the sales of unit-weeks in the time-sharing vacation ownership plan, neither the owners of time-share estates nor the Association shall interfere with the sale of such unit-weeks. The Declarant may make such use of the unsold unit-weeks and common elements as may facilitate their sale, including, but not limited to, the showing of the property and display of signs.
  
  
• 13. ASSOCIATION TO MAINTAIN REGISTER OF OWNERS, SUB-LESSEES, AND MORTGAGES. The Association shall, at all times, maintain a register setting forth the names and mailing addresses of all time-share estate owners. Any purchaser or transferee of a unit-week, prior to occupancy,shall notify the Association of his interest in such unit. Further, prior to or at the time of delivery of possession of an apartment unit to a sub-lessee, the respective unit-week owner shall notify the Association of the names and home mailing addresses of all persons who will occupy the apartment unit as sub-lessees, together with the term of the respective sublease. In addition, the time-share estate owner shall advise the association of the name and mailing address of any holder of a partial leasehold mortgage on the owner"s interest. It shall be the duty of the owner of the time-share estate to provide the sublessee with the rules and regulations relating to the use and occupancy of this time-sharing vacation ownership plan.
  
  
• 14. COMPLIANCE AND DEFAULT.
  
  
  • 14.A. TERMS AND CONDITIONS OF DECLARATION AND BY-LAWS. Each owner of a time-share estate shall comply with and be governed by the terms and provisions of this Declaration, the By-Laws of the Association, and the rules and regulations adopted pursuant to such documents, as they maybe amended from time to time. Failure to do so shall entitle the Association, or any owner or mortgagee of a time-share estate, to recover such sums due for damages, or injunctive relief, or both, as well as all reasonable costs and attorney"s fees incurred to enforce compliance or recover damages. Such actions may be maintained by or against a time-share estate owner or the Association, or in a proper case, by or again stone or more time-share estate owners. Such relief shall not be exclusive of other remedies provided by law.
    
    
  • 14.B. FAILURE TO ENFORCE; WAIVER. The failure of the Association, its Board of directors, any owner of a time-share estate, or leasehold mortgagee to enforce any right, provision, covenant or restriction, this Declaration, the By-Laws of the Association, or the rules and regulations adopted pursuant to such documents, as they may be amended from time to time, or the failure to insist upon compliance with the same, shall not constitute a waiver to enforce same or to insist upon compliance with the same in the future.
    
    
  • 14.C. NO BREACH TO AFFECT MORTGAGE LIEN. No breach of the provisions contained herein shall defeat or adversely affect the lien of any leasehold mortgage made in good faith and for valuable consideration, but the rights and remedies granted herein may be enforced against the owner of the time-share estate subject to such mortgage, notwithstanding such mortgage. The purchaser at any foreclosure sale shall be found by all of the provisions herein contained.
  
  
  
• 15. AMENDMENTS TO DECLARATION.
  
  
  • 15.A. PROPOSED AMENDMENTS. A resolution for any amendment to this Declaration may be proposed by the Board of Directors of the Association or by the members of the Association owning two percent (2%) of the unit-weeks in the time-sharing vacation ownership plan whether meeting as members or by instrument in writing signed by them. Such proposed amendment shall be transmitted to the President of the Association who shall thereupon call a special meeting of the members of the Association for a date not sooner than fourteen (14) days, not later than sixty (60) days from the receipt by him of the proposed amendment. It shall be the duty of the Secretary to give to each member written or printed notice of such meeting stating the time and place of the meeting, and reciting the proposed amendment in reasonably detailed form, which notice shall be mailed or personally presented to each member not less than fourteen (14) days, nor more than sixty (60) days before the date set for such meeting. If mailed, such notice shall be deemed to be properly given when deposited in the United States Mail, addressed to the member at this post office address as it appears on the records of the Association, the postage thereon prepaid. Any members may, by written waiver signed by such member, waive such notice. Such waiver, when filed in the records of the Association, whether before or after the holding of the meeting, shall be deemed equivalent to the giving of such notice to such member.
    
    
  • 15.B. APPROVAL OF AMENDMENT. Except as elsewhere provided, Amendments shall be deemed adopted upon the approval of the owners of at least a majority (51%) of all unit-weeks. An amendment to the Declaration shall become effective when recorded according to law. An amendment shall be evidenced by a Certificate executed with the formalities of deed, and shall include the recording data identifying the Declaration.
    
    
  • 15.C. AMENDMENTS BY DECLARANT. The Declarant hereby reserves the sole right to amend, modify, alter or annul any of the covenants, restrictions or conditions of this Declaration or exhibits to this Declaration until twenty percent (20%) of the unit-weeks have been sold and leased out to individual purchasers; provided, however, that no such amendment shall discriminate against or affect apartment units or unit-weeks, unless the owners so affected shall consent in writing, and unless all the other record owners approve the amendment.
  
  
  
• 16. TERMINATION OF CONDOMINIUM. All of the owners of unit-weeks may remove the time-sharing vacation ownership plan property from the provisions of this Declaration by an instrument to that effect, duly recorded, provided that the holders of all liens affecting any of the apartment units consent thereto or agree,in either case by instrument duly recorded, that their liens be transferred to the percentage of the undivided interest of the property as hereinafter provided. Upon removal of the property from the provisions of this Declaration, the interest in that portion of the Ground Lease pertaining to the time-sharing vacation ownership plan property shall be deemed owned in common by the Declarant and all owners of time-share estates. The undivided interest in said portion of the Ground Lease owned in common which shall appertain to the Declarant and to each owner of a time-share estate shall be the percentage of undivided interest previously owned by the Declarant or such owner in the common areas and facilities, after applying an appropriate factor to take into account the remaining lease terms for time-share estates with respect to each time-share estate owner"s interest, and the remaining term for the Ground Lease with respect to the Declarant"s reversionary interest.
  
  
• 17. HOLDOVER OWNERS. In the event any owner or user of a time-share estate fails to vacate the particular apartment unit at the expiration of the particular period of ownership and use each year, or at such earlier time as may be fixed by the rules and regulations adopted by the Association from time to time, he shall be deemed a "holdover owner". It shall be the responsibility of the Association to take such steps as may be necessary to remove such holdover owner from the apartment unit. The Association shall find and secure, at its expense, alternate accommodations for any unit-week owner who is not able to occupy the apartment unit due to the failure to vacate of any holdover owner. The accommodations shall be as near in value to the owner"s own apartment unit as possible. The holdover owner shall be charged for the cost of such alternate accommodations, any other costs incurred due to his failure to vacate, and a penalty of Fifty dollars ($50.00) per day penalty shall cease upon actual vacating by the holdover owner. The Association shall submit a bill to the holdover owner for charges provided herein. In the event the holdover owner fails to pay same within ten (10) days of the date of same, a lien shall be filed against said holdover owner"s time share estate in accordance with the provisions of Paragraph 7.F.
  
  
• 18. CONSTRUCTION OF DOCUMENTS. The provisions of this Declaration shall be construed so as to effectuate its purpose. The invalidity in whole or in part of any covenant or restriction, or any section, sub-section, sentence, clause, phrase or word or other provision of this Declaration, the By-Laws of the association, or rules and regulations of the Association, shall not affect the validity of the remaining portions.
  
  
• 19. UNUSABLE UNIT. In the event any apartment unit is not usable or tenantable, the Association shall be responsible for the cost of providing the owner or user of the particular time-share estate with a comparable apartment unit in the time-sharing vacation ownership plan or comparable hotel accommodations as close as possible to the time-sharing vacation ownership plan. Such cost shall be treated as a common expense of the Association.
  
  
• 20. NEW CONSTRUCTION. The Declarant expressly reserves the right to construct new buildings on the premises, including the right to construct new apartment units for resale by the Declarant, so long as said new construction does not violate the common elements listed in paragraph 3.C. above. Further, the declarant expressly reserves the right to restrict access over other areas of the premises in the event that new construction does take place as set forth in paragraph 3.F.5. In this regard, the Declarant expressly acknowledged that new construction of future apartment units is contemplated by him and any proceeds from the sale of said units shall belong exclusively to the Declarant.
  
  
• 21. UNDERLYING MORTGAGES. The Declarant hereby gives notice that there is an existing mortgage on the premises at P.C. page 151, Document 3893/1979, in the Office of the Recorder of Deeds, Christiansted, St. Croix, U.S. Virgin Islands, in favor of First Bank N.A. Milwaukee, Wisconsin, in the face amount of$1,735,000.00. All sales of partial leasehold units are subject to this existing mortgage, though the Declarant expressly acknowledges that the payment of this mortgage is exclusively the responsibility of the Declarant,and to that extent the Declarant hereby agrees to indemnify and hold harmless all owners of partial leasehold estates from any claims or liabilities incurred as the result of said mortgage. Further, the Declarant expressly reserves the right to further encumber the entire property in the future and all owners of partial leasehold estates take their interest subject to the Declarant's right to further encumber the property so that all owners of partial leasehold estates expressly agree in advance to subordinate their interests to such future encumbrances incurred by the Declarant. This paragraph is to be strictly construed and applied only to mortgages voluntarily incurred by the Declarant and to no other debts or liabilities which may be imposed against the Declarant.
  
  
• 22. CAPTIONS. The captions herein are inserted only as a matter of convenience and for reference, and in noway limit the scope of this Declaration or the intent of any provisions hereof.
  
  
• 23. GENDER. Whenever used, the singular shall include the plural, and plural the singular, and the use of any gender shall include all genders.
  
  
• 24. CONSTRUCTION AND REFURNISHINGS. The Following list of improvements and furnishings will be included in each room on or before June 1, 1982: (a) Wall units " including built-in bars; (b) 3 cubic feet refrigerator; (c) 19" Color Television; (d) Cassette AM/FM Stereo; (e) Queen size bed; (f) Queen size sofa sleeper; (g) Clock radio; (h) Coffee table; (i) Deck furniture; (j) Coffee maker; (k) Ceiling fan; (l) Miscellaneous furnishings (amended 11/25/80).

IN WITNESS WHEREOF, OLIVER PLUNKETT has caused these presents to be signed on the 4thday of August, 1980.

ACKNOWLEDGEMENT

TERRITORY OF THE VIRGIN ISLANDS DISTRICT OF ST. CROIX

On this the 4th day of August, 1980, before me personally came and appeared OLIVER PLUNKETT, known to me to be the individual whose name is subscribed to the within instrument and acknowledged that he has executed the same for the purposes therein contained.

IN WITNESS WHEREOF, I hereunto set my hand and official seal.