Last Update 13 December 2012
ARTICLE XI
EMINENT DOMAIN

Section 11.01. Definitions: Total Taking, Partial Taking, Special Partial Taking. The Term “taking” as use in this Article shall mean condemnation by exercise of power of eminent domain or by sale under threat of the exercise of the power of eminent domain. Any taking shall be deemed to be effective on the date the condemning authority takes actual physical possession of the taken property. A “Total Taking” shall occur if there is a permanent taking by eminent domain of an interest in all or part of the Common Areas or of all or part of one or more Units, so as to prevent or substantially impair the ownership, operation and use of the Project in accordance with the provisions of this Declaration, Such ownership, operation and use of the Project shall be conclusively deemed to be prevented or substantially impaired if, within forty-five (45) days after the effective date of the taking, the Unit owners of any Units (i) not taken, or (ii) only partially taken and capable of being restored to at least ninety-five percent (95%) of their floor area and to substantially their condition prior to the taking (collectively the “Remaining Units”) do not by affirmative vote of a majority of their entire voting interest (without adjustment among such Units for relative voting rights because of such partial taking), and with the written consent of the first Mortgagees, if any, of the Condominium of the approving Unit Owners, approve the continuation of the Project and the repair, restoration and replacement to the extent feasible of the Common Areas and the Remaining Units. A “Partial Taking” shall occur if there is any other permanent taking of the Property. A Partial Taking shall include, without limitation, a “Special Partial Taking* which is described herein as a taking of all or part of one or more Units, as Units, subject to all of the provisions of this Declaration, without involving any taking of the Common Areas except to the extent of e proportionate interest therein of the Units taken, so that the taking authority becomes a successor in title to the Unit Owner or Unit Owner of the Condominium or Condominiums so taken with the same effect as if such Units were purchased by the taking authority. Following any taking which in the opinion of the Board of Directors would constitute a Total Taking in the absence of the affirmative vote of the Remaining Unit Owners as required by the foregoing provisions, the Board of Directors shall call a special meeting of the Remaining Unit owners to be held promptly, and in any event within sixty (60) days after the effective date of such taking, to determine if such Remaining Unit Owners will, or will not, decide to continue the Project as provided herein.

Section 11.02. Awards; Repair; Restoration and Replacement.

  1. In the event of a Total Taking, the Board of Directors shall proceed as follows:
    1. Except as provided in Section 11.03 of this Article, the Board shall represent all Unit Owners in an action to recover any and all awards, subject to the right of Master Lessor, Sublessor and all first Mortgagees of record, upon request, to join in the proceedings.

    2. The Board shall divide proportionately among Unit Owner that portion o! any condemnation award attributable to the value of the Condominiums in the Project, such proportions to be computed by dividing the appraised fair market valuation of each Condominium in the Project as of the effective date of the taking by the total of the appraised fair market valuations of all Condominiums in the Project as of such effective date. Notwithstanding the foregoing, no distribution shall be made to a Unit Owner hereunder without first paying from such Unit Owner's share in order of priority, the balance then due on any valid encumbrance of record on the Condominium of such Owner.

    3. After deducting any incidental fees and expenses, the Board shall pay the balance of the award, if any, to Sublessor for distribution pursuant to the Master Lease.

  2. In the event of a Partial Taking, other than a Special Partial Taking, the provisions of Section 11.02 (a) (1) shall be applicable. The net proceeds of the Partial Taking awards allocated to the subleasehold estate of the Unit Owners in the Property taken, the Taken Units (as defined below), and the Improvements on the Property taken shall be held by the Board of Directors, after deducting related fees and expenses and the portions of the awards allotted in the taking proceedings or, failing such allotment, allotted by the Board of Directors to (i) Units totally taken or partially taken and not capable of being restored to at least ninety-five percent (95%} of their floor area and substantially their condition prior to the taking, and (ii) Units taken in the same manner as is a Special Partial Taking except that the taking is made subject to only some or to none of the By-Laws and the Rules and Regulations (collectively the “Taken Units”).

    The proceeds of the Partial Taking award allocated to the subleasehold estate of the Unit owners in the Property taken, the Taken Units, and the Improvements on the taken property and allotted to the Taken Units shall be paid to the Unit Owners respectively entitled thereto; provided, however, that such proceeds shall first be applied to the balance then due on any Mortgages of Record in order of priority before the distribution of any such proceeds to any Unit Owner whose Condominium is subject to any such Mortgage. First Mortgagees of Record with respect to the Remaining Units affected by such Partial Taking shall be entitled to severance damages payable out of the award proceeds held by the Board of Directors to the extent that such Mortgagees can prove that their security has been impaired by such taking. The Balance of the net proceeds allocated to the subleasehold estate of the Unit Owners in the Property taken and to the Improvements on the Property taken shall then be applied to the repair, restoration and replacement of the con Areas and the Remaining Units (but not Unit Owners’ personal property nor those portions of the Units which the Unit Owners are obligated to restore) to as nearly their condition prior to the taking as may be feasible, in the same manner and under the same provisions applicable to the proceeds of insurance as set forth in Article X hereof, except for any provisions relating to Unit Owners' personal property. Any portion of the award still held for restoration by the Board of Directors following completion thereof shall be divided proportionately among Remaining Unit Owners, such proportions to be computed by dividing the appraised fair market valuation of each Remaining Unit as of the effective date of the taking by the total of the appraised fair market valuations of all Remaining Units as of such effective date.

    In the event that the funds held for restoration by the Board of Directors are less than the cost of restoration and repair, a Reconstruction Assessment of the Remaining Unit Owners, with each Remaining Unit Owner. contributing a sum in the same proportion as Annual Assessments paid by such Unit Owner, to be levied by the Board of Directors to provide the necessary additional funds for such reconstruction. In no event shall the Board of Directors be required to undertake any repair or restoration work or make any payments with respect to any Unit in excess of that portion of the awards reasonably attributable to the loss to that Unit. Following any Partial Taking, the Association and the Project shall continue, subject to and with the benefit of all the provisions of this Declaration, so far as applicable to the Remaining Units, and the voting interests of the Unit owners shall be the same.

  3. In the event of a Special Partial Taking or a temporary taking of any Condominium, Section 11.02 (a) (1) shall be applicable. The Unit Owner of the Condominium taken, together with his mortgagees, shall be entitled to that portion of any award allocated to the subleasehold estate of such Unit owner in the taken Property and to the undivided interest of such Unit Owner in he Improvements on the taken Property. In the event of a temporary taking of Common Areas, the Board of Directors shall have exclusive rights to prosecute the proceedings for the respective taking awards and shall apply the proceeds thereof to reduce common Expenses.

  4. After accomplishing the distribution of the portions of the condemnation awards described above, the balance, if any, of such awards shall be paid to Sublessor for distribution pursuant to the Master Lease. (e) For purpose s of this Section the portion of the award allocated to the subleasehold estate of Unit Owners in the Property taken, the Taken Units and the. Improvements on the Property taken shall not exceed the appraisal of the condemning authority or judgment, if any, with respect to the amount of the award allocable to such subleasebold estate, such Taken Units and such Improvements, provided, however, that such portion of the award shall not be less than the aggregate amount of the unpaid balances (as of the effective date of the taking) of the indebtednesses secured by first Mortgages on the condominiums in the Property taken.
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