the covenants
To our future neighbours:
I will be the first to acknowledge my lack of patience with paperwork and documentation, but if this project is to work well in the long term, I feel that some things need to be put down on paper and contractually agreed to at the outset.
Even leisure living requires some planning, particularly if multiple households are going to live and work in harmony. So, this document will lay out, in sometimes excessive detail, how life will play out on the farm.
These covenants will ensure that you can live the lifestyle you dream of. The restrictions are designed to maintain the Finca Buena Vida Seaside Neighbourhood’s and your peaceful enjoyment of the land.
The land use restrictions that have been established are based on a desire to preserve the tranquil island setting, maintain a commitment to ecologically sound practices and to promote an excellent quality of life for residents and their guests.
The nominal fees set forth in the covenants were established to maintain the property in exceptional condition, to set a neighbourhood standard and to provide the special services required due to our location.
The goal of this community is to attract people who want to enjoy a lifestyle committed to harmony with nature and with each other. The Board of Directors chosen by Santuario Holdings, S.A. to guide this project through its initial growth phase will be reasonable, flexible and more than willing to work with you relative to satisfying the intent of the covenants.
We look forward to being your neighbours, friends and partners in a beautiful project that redefines what it means to live, work and play in paradise.
Welcome to a Different Kind of Comfortable… Affordable - Sustainable - Distinctive
swanny, Leisurologist
DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS
The Finca Buena Vida Seaside Neighbourhood
Isla San Cristobal, Bocas del Toro, Republic of Panama
THIS DECLARATION, made on the date hereinafter set forth by Santuario Holdings, S.A., a Panamanian corporation, hereinafter referred to as the “Declarant”.
WITNESSETH:
WHEREAS, the Declarant is the owner of certain Properties in the country of Panama, which are depicted in Exhibit A as Phase One, Phase Two, Phase Three, Phase Four and Common Areas, hereinafter referred to as the “Properties”, which are to be developed as The Finca Buena Vida Seaside Neighbourhood; and
WHEREAS, the Declarant desires through this Declaration of Covenants and the organization of the Board, to protect and maintain The Properties as an ecologically sound, rural residential area, with facilities at the Dolphin Bay Wellness Retreat on the portion of the Properties not within the Lots, as defined below; and
WHEREAS, the Declarant desires to provide for the operation and maintenance of the Common Areas by the Association, as defined below;
NOW, THEREFORE, the Declarant hereby declares that all of the Lots and Common Areas, as defined below, shall be held, sold, and/or conveyed subject to the following easements, restrictions, stipulations, covenants, and conditions which are for the purpose of protecting the ecological soundness of the project, investment value and desirability of, and which shall run with, the real property and be binding on all parties having any right, title or interest in the described Lots and Common Areas or any part thereof, their heirs, successors, and assigns, and shall inure to the benefit of each Owner thereof.
TABLE OF CONTENTS
ARTICLE I – DEFINITIONS
1) Declarant
2) Owner
3) Lot
4) Association
5) Board
6) Properties
7) Common Areas
8) Retreat
ARTICLE II – MEMBERSHIP AND VOTING RIGHTS
1) Owner Classes
2) Voting
3) The Board
ARTICLE III – COVENANT FOR ASSESSMENTS
1) Creation of Lien and Personal Obligation of Easements
2) Purpose of Assessments
3) Maximum Annual Assessment
4) Special Assessments for Capital Improvements
5) Negligence Fees
6) Uniform Rate of Assessment
7) Date of Commencement of Annual Assessments
8) Effect of Non Payment of Assessments
ARTICLE IV – ARCHITECTURE AND DESIGN
1) Design Ideals
2) Building Restrictions for Lots
3) Building Site Locations
4) Fences
5) Landscaping
ARTICLE V – CONSTRUCTION PROCESS
1) Local Rules and Regulations
2) Contractor Suitability
3) Commencement of Construction
4) Duration of Construction
5) Restoration of Lots
ARTICLE VI – LOT USE AND RESTRICTIONS
1) Property Use
2) Commercial and Business Usage
3) Occupancy Levels
4) Leasing
5) Adjoining Lots
6) Nuisance
7) Lot Maintenance
8) Excavation
9) Temporary Buildings
10) Out Buildings
11) Tree Removal
12) Pets
13) Signs
14) Exterior Communication Devices
15) Gardens
16) Exterior Lighting
17) Swimming Pools
18) Hunting
19) Piers and Docks
20) Coast Assess and Use
21) Watercraft
22) Water Pollution
23) Trash Disposal
24) Utility Provisions
25) Conflict Resolution
ARTICLE VII – GRANT AND RESERVATION OF EASEMENTS
1) Utilities
2) Security
3) Construction Easement
4) Future Easements
5) Drainage
ARTICLE VIII – USE OF COMMON AREAS AND RIGHTS THEREIN
1) Description
2) Owners Easements of Enjoyment
3) Delegation of Use
4) Common Areas Damage
5) Nuisance
ARTICLE IX – GENERAL PROVISIONS
1) Enforcement
2) Severability
3) Amendment
3.1) Dissolution
4) Title
5) Inseperability
6) Notice
7) Costs and Attorney Fees
8) Right of First Refusal with Bonafide Offer
8.1) Right of First Refusal without Bonafide Offer
9) Retreat Membership
10) Retreat Operations
11) Multiple Lot Sales
12) Sale of the Retreat Operation
APPENDIX – EXHIBIT A: PROJECT SITE PLAN
EXHIBIT B: MAP OF COMMON AREAS
EXHIBIT C: FEE SCHEDULES
ARTICLE I
DEFINITIONS
1.) Declarant. “Declarant” shall mean and refer to Santuario Holdings, S.A., a Panamanian Corporation, its successors and assigns.
2.) Owner. “Owner” shall mean and refer to the record Owner, whether one or more persons or entities, of title under Panamanian law to any Lot which is part of the Properties, including contract sellers, but excluding those having such interest merely as security for the performance of an obligation.
3.) Lot. “Lot” shall mean and refer to any numbered plot of land shown upon Exhibit A.
4.) Association. “Association” shall mean and refer to The Buena Vida Homeowners Association, S.A., a Panamanian non-profit entity, its successors and assigns, the membership of such being made up of individual Owners.
5.) Board. “Board” shall mean and refer to the Board of Directors of the Buena Vida Homeowners Association.
6.) Properties. “Properties” shall mean and refer to that certain real property herein described as Phase One, Phase Two, Phase 3, Phase Four and Common Areas, and such additions thereto as may hereafter be brought within the jurisdiction of the Declarant.
7.) Common Areas. “Common Areas” shall mean and refer to any facility within the jurisdiction of the Retreat and/or any land within the jurisdiction of The Declarant, as is more specifically depicted on Exhibit A attached hereto and made a part hereof. These Areas are offered, free of charge and voluntarily, for the common enjoyment of the Owners and Retreat guests. The Declarant reserves the right to alter and/or modify any present or future use of said areas as is necessary for the long term operational viability of the Finca Buena Vida Seaside Neighbourhood and/or the Retreat Centre.
8.) Retreat. “Retreat” shall mean and refer to any and all business activities that are carried out by the Dolphin Bay Wellness Retreat, S.A., a Panamanian corporation, or his/her assigns on lands referred to as The Properties that are exclusive of those known as the Lots. These activities shall include, but not be limited to, services offered to guests such as rental cabanas, holistic health services, creative workshops and other similar endeavours, horseback riding, jungle hikes, permaculture activities, educational workshops, as well as all activities related to the development and maintenance of a viable retreat business model on said lands.
ARTICLE II
MEMBERSHIP AND VOTING RIGHTS
1.) OWNER CLASSES: Each Owner of a Lot within the Association shall have membership in the Association. Membership shall be appurtenant to and
may not be separated from the Lot.
2.) VOTING: Each Owner shall have voting rights as set forth herein. There
shall be two classes of voting membership:
(a) Class A. Class A Members are all Owners of Lots other than Declarant, while Declarant is a Class B Member. Class A Members will be entitled to one vote for each Lot owned.
(b) Class B. The Class B Member is Declarant, which shall be entitled to 1 vote in all matters for each Lot owned by the Class B Member or its affiliates. Declarant may assign its Class B Membership. The Class B Membership will end and be converted to Class A Membership (i) when Declarant chooses to become a Class A Member, as evidenced by a written instrument to such effect, executed by Declarant and disseminated to all the Owners, or (ii) upon the sale of all the Lots by Declarant to third parties, or (iii) ten years after the date the first lot is sold, as evidenced by a written instrument of such sale, whichever occurs first.
3.) THE BOARD: The Board shall consist of three members - Chairperson, Treasurer, and Secretary - all of whom shall be Owners unless no Owner is willing to serve. The Board shall be responsible for all the day to day activites that the Association chooses to undertake. Board members shall be elected by members of the Buena Vida Homeowners Association. Positions on the Board shall be filled through bi-annual voting by Association members, with the winning candidate earning 66.6 % or more of the popular vote. A second round of voting will take place if no candidate earns the required number of votes. Willingness to serve shall be evidenced by submitting one’s name in writing as a candidate for Board member.
ARTICLE III
COVENANT FOR ASSESSMENTS
1.) CREATION OF LIEN AND PERSONAL OBLIGATION OF ASSESSMENTS: The Declarant, for each Lot within the Properties, hereby covenants as provided for herein, and each Owner by acceptance of a deed therefor, whether or not it shall be so expressed in such deed, is deemed to covenant and agree to pay to the Association: (1) annual assessments; (2) special assessments for capital improvements as may be approved by the Board, as described herein. Annual assessments and special assessments, together with all interest, costs, and reasonable attorney’s fees and expenses, shall be a charge on the land and shall be a continuing lien upon the Lot against which each such assessment or fee is made. Each such assessment or fee, together with all interest, costs, and reasonable attorney’s fees and expenses, shall also be the personal obligation of the person who was the Owner of the Lot at the time when the assessment fell due or the fee was incurred. The personal obligation for delinquent assessments and fees shall not pass to an Owner’s successors in title unless expressly assumed by the successors, although such obligation shall remain a lien against the Lot.
2.) PURPOSE OF ASSESSMENTS: The assessments levied by the Association shall be used exclusively to promote the health, safety, and welfare of the residents of the Properties, to improve and maintain the Common Areas, to maintain the condition and integrity of the environment in and around the Properties, and other purposes as may be approved by the Board in its reasonable discretion.
3.) MAXIMUM ANNUAL ASSESSMENT: The maximum annual assessment per Lot within the Properties shall be as set forth herein;
(a.) Until January 1 of the year immediately following the conveyance of the first Lot to an Owner, the maximum annual assessment shall be as set forth in the Fee Table in Exhibit B attached hereto and made a part hereof, which may be amended from time-to-time by the Board.
(b.) From and after January 1 of the year immediately following the conveyance of the first Lot to an Owner, the maximum annual assessment may not be increased each year by more than 15% above the maximum assessment for the previous year, exclusive of reserves.
4.) SPECIAL ASSESSMENTS FOR CAPITAL IMPROVEMENTS: In addition to the annual assessments authorized above, the Association may levy, in any assessment year, a special assessment applicable to that year only for the purpose of defraying, in whole or in part, the cost of construction, reconstruction, repair, or replacement of a capital improvement on the Common Areas.
5.) NEGLIGENCE FEES: Negligence fees shall be as set forth in the Fee Table in Exhibit B, which may be amended from time-to-time by the Board. The Board may change these negligence and optional service fees at any time.
6.) UNIFORM RATE OF ASSESSMENT: Both annual and special assessments shall be fixed at a uniform rate for each Lot, as determined annually by the Board.
7.) DATE OF COMMENCEMENT OF ANNUAL ASSESSMENTS: The annual assessments on a Lot as provided for herein shall commence upon the transfer or sale of the Lot from the Declarant. The Board shall fix the amount of the annual assessment against each Lot at least sixty (60) days in advance of each annual assessment period. Written notice of the assessment shall be sent to each Owner subject thereto. Assessments shall be billed as determined by the Board, either annually or quarterly, and the due dates for payment of same shall be established by the Board.
8.) EFFECT OF NONPAYMENT OF ASSESSMENTS: REMEDIES OF THE ASSOCIATION: Assessments not paid within thirty (30) days after the due date shall bear interest from the due date at the rate of eighteen percent (18%) per annum, with a minimum charge of $50.00 in addition to the yearly assessment. The Association may bring an action of law against the Owner personally obligated to pay the same, or foreclose the lien against the property. No Owner may waive or otherwise escape liability for the assessments provided for herein by non-use of the Common Areas or abandonment of the Lot.
ARTICLE IV
ARCHITECTURE AND DESIGN
1.) DESIGN IDEALS: Funky, fun, original design is strongly encouraged and personal tastes are strongly respected, but that being said, no house, fence, other structure, or other improvement and/or alteration shall be commenced until the plans and specifications have been submitted to the Board and received Board approval in writing as to harmony of external design and location in relation to surrounding structures and topography. Any live tree removal, landscaping, or gardening shall be deemed an improvement for purposes of this Article. In addition to the express provisions of this Declaration, the Board shall exercise its best judgment in reviewing proposed improvements and changes, as set forth herein, with the end purpose being to maintain the quality of life of the FBV Seaside Neighbourhood while allowing personal creativity and tastes to be celebrated.
2.) BUILDING RESTRICTIONS FOR LOTS: A maximum of four individual buildings or structures are allowed per Lot. Additional buildings may be allowed on a Lot by Lot basis with Board
approval and in keeping with the spirit and intent of this Declaration.
3.) BUILDING SITE LOCATIONS: Some Lots have a defined building site(s) as set out in Exhibit A which have been duly considered and chosen to maximum quality of life and land use. These specified building sites are meant to maximize personal privacy while guaranteeing that each lot with a view, has a perpetual guarantee of that view.
4.) FENCES: Fences are discouraged but, with good reason, shall be allowed with Board approval.
5.) LANDSCAPING: The preservation of existing trees and other site foliage shall be maintained to the extent practicable. A “planned natural look” emphasizing native plants and ground cover is strongly encouraged by the Association.
ARTICLE V
CONSTRUCTION PROCESS
1.) LOCAL RULES AND REGULATIONS: Prior to commencement of construction on a Lot, each Owner shall secure any required local permits and/or documentation. Construction shall be carried out in compliance with the applicable laws, codes, regulations, zoning, and orders of local governmental agencies and authorities. Buildings shall be designed and constructed in accordance with applicable Panamanian codes and may be inspected by a qualified inspector before habitation is allowed. Santuario Holdings will be available for consultation and assistance in navigating the relevant legal and governmental processes. Costs, if any, for said consultation and assistance will be levied on a case by case basis.
2.) CONTRACTOR SUITABILITY: The Board shall have the right to disapprove the choice by an Owner of any construction contractor (including the Owner).
3.) COMMENCEMENT OF CONSTRUCTION: Construction must commence within two years (24 months) of transfer of title from The Declarant to The Buyer and construction on a Lot shall commence within six (6) months of Board approval of the submitted plans and specifications. Any exceptions from this time period must be approved by the Board.
4.) DURATION OF CONSTRUCTION: Upon the commencement of construction on a Lot, work thereon shall be pursued diligently and continuously and shall be completed within ten (10) months from date of commencement of construction. Any exceptions from this time period must be approved by the Board.
5.) RESTORATION OF LOTS: Upon completion of any construction on a Lot, construction debris shall be removed and disposed of in an ecologically sound manner and the Lot shall be in presentable condition as determined by the Board. Each Owner shall complete said restoration within thirty (30) days following completion of construction. In the event restoration is not completed within the applicable time period, the Association may complete said restoration at the expense of the Owner, plus a fee for same equal to twenty-five percent (25%) of the cost of same which shall be a personal obligation of the Owner and a continuing lien against the Lot until paid, on the same basis for assessments asset forth in Article III.
ARTICLE VI
LOT USE AND RESTRICTIONS
1.) PROPERTY USE: The use of Lots and improvements thereon shall be subject to the restrictions set forth herein.
2.) COMMERCIAL AND BUSINESS USAGE: Lots and improvements thereon shall not be used for any commercial or business purposes, except that Owners may choose to have a home office in which their customers contact them electronically, and except that any Lot owned by Declarant, its successors or assigns, may be used for commercial and business purposes, including but not limited to a restaurant, bar, cabana(s) or other facilities serving members of the public who may use the Retreat dock and the Common Areas to access same.
3.) OCCUPANCY LEVELS: Fulltime occupancy, defined as a minimum of six (6) months per calendar year, shall be limited to two adults and three minors under the age of eighteen years for lots under 2.5 acres. For Lots over 2.5 acres the occupancy levels adjust to also allow for four adults with no minors.
4.) LEASING: Leasing is strongly encouraged by The Retreat. Leasing shall only be contracted through The Retreat under a separate leasing contract with individual terms and conditions agreed to by both The Retreat and individual Owners. The Owner is free to seek out short term tenants on his or her own without the aid of any outside contracting agency, including The Retreat. For the purposes of this document, ‘short term’ shall be defined as a maximum of sixty (60) consecutive days.
5.) ADJOINING LOTS: When two or more adjoining Lots are sold to the same Owner, while the intervening boundary line may be voided, limitations on the size of the structures to be constructed on the combined lot shall not be affected, and assessments shall be paid on each lot as originally subdivided. There may be a walkway or other joiner of the residences thereon, if so approved by the Board.
6.) NUISANCE: Noxious or offensive trade or activity shall not be allowed on a Lot or on the Common Areas. Nothing shall be performed thereon which may be or may become an annoyance or nuisance to other Owners and/or guests including, without limitation, noxious fumes, smoke, excessive or continuing loud noises, interference with radio or television reception, and excessive draining of water or other effluents onto any adjoining Lot or onto the Common Areas.
7.) LOT MAINTENANCE (VEGETATION): Lot maintenance (vegetation) shall be the responsibility of individual Owners. If an individual Owner fails to adequately control landscape growth, then Lot maintenance (vegetation) shall be provided by the Association as set forth in the Fee Table in Exhibit C, which may be amended from time-to-time by the Board, and the Board and its agents shall be and hereby are, authorized and granted an easement to enter upon the Lot to accomplish said maintenance, the expense of which shall be recoverable by the Board as set forth in the Fee Table in Exhibit C, which may be amended from time-to-time by the Board.
8.) EXCAVATION: Elevation or topography changes shall not be allowed on a Lot that may materially affect the surface grade or drainage on the Lot or an adjoining Lot or property. Nothing herein shall preclude filling in a Lot as may be necessary or appropriate to protect improvements from flood.
9.) TEMPORARY BUILDINGS: Tents, or other temporary buildings shall be constructed and maintained for construction purposes only. Such temporary structures shall be removed within thirty (30) days after construction is completed.
10.) OUT BUILDINGS: non-residential outbuildings shall be limited to one per lot and shall not be in excess of one hundred and fifty (150) sq. ft. with a height not to exceed eight (8) feet from finished floor to the roof peak.
11.) TREE REMOVAL: Tree removal is discouraged by the Board.
12.) PETS: Hoofed animals or exotic (non-indigenous) pets shall not be allowed on the Lots. Animals shall not be raised, bred, or kept for commercial purposes on the Lots. Birds, monkeys and/or reptiles shall not be kept on the Properties as pets. Cats and dogs shall be spayed or neutered and proof of such operation shall be provided to the Board prior to their arrival on the Properties. Household pets shall wear bells or other warning devices to protect wildlife that resides on the Properties. Household pets shall be restrained within fenced areas, in cages, or under leash. Household pets that accumulate three complaints against them must be removed from the Properties. Complaints shall
be limited to issues of noise and/or poorly controlled or dangerous behaviour on the part of the pet. Owners shall promptly remove and properly dispose of all animal waste, particularly on Common Areas. An Owner shall not possess more
than one (1) pet unless approved in writing by the Board. Animal abuse of any kind will not be tolerated on the Properties.
13.) SIGNS: Advertising signs, billboards, or similar objects shall not be erected, placed or allowed to remain on the Properties, unless approved in writing by the Board. The Board, The Retreat and The Declarant shall be exempt from these sign provisions. The Board shall allow one sign per Lot of not more than six (6) square feet in area advertising that the Lot is for sale or for rent. Such sign shall be displayed only at the front of each Lot.
14.) EXTERIOR COMMUNICATION DEVICES: Exterior television antennas, radio antennas, satellite dishes, or similar items shall not intrude on the natural viewscapes or Owners pleasant enjoyment of the land.
15.) GARDENS: Vegetable and fruit gardening is strongly encouraged.
16.) EXTERIOR LIGHTING: Exterior lighting shall be considered light pollution and should be minimized and maintained to provide illumination as is necessary only for the Lot on which it is installed. The Board shall have the right to deem any exterior lighting as light pollution and order it removed if it does not conform to reasonable standards of design and aesthetic value in keeping with a natural rural setting or if said same interferes with the comfortable enjoyment of the Properties by other Owners and/or guests of The Retreat.
17.) SWIMMING POOLS: Swimming pools shall not be allowed on residential Lots.
18.) HUNTING: The hunting, trapping or abuse of any animal, bird, reptile or sea creature shall not be allowed on the Properties.
19.) PIERS AND DOCKS: Piers, docks, or other in-water structures for use by any motorized watercraft shall be constructed only as set out below, with all necessary government permits and concessions for the construction of said structures on any and all Lots being the sole responsibility of the individual Owners. For Lots 1, 2, 3, 4 and 5 in Phase One there shall be one common dock area with dockage space for one boat per Owner with a length of water craft not to exceed 25 feet and/or a horsepower rating of one hundred and fifty (150), and shall be built and maintained by Lot Owners 1, 2, 3, 4 and 5 in Phase One. For Lots 1, 2 and 3 in Phase Two, individual dock facilities shall not exceed 55 feet in length from the high tide mark or, if building a house over the water, individual boat docks shall not exceed 35 feet in length from the side of the house furthest from the coastline. There is no restriction as to boat length or horsepower rating for Lots 1, 2 and 3 in Phase Two. Docking access for Lots 6 and 7 in Phase One, Lots 5, 6 7 and 8 in Phase Two and all Lots in Phase Three will be built by the Retreat and maintained by the Owners of the aforementioned Lots. These Owners will have dockage space for one boat with a length of water craft not to exceed 25 feet and/or a horsepower rating of one hundred and fifty (150). In the event of a catastrophic loss to the dock area serving the boat slips to which these Owners have a right of use, the Owners will contribute their proportionate share (9% per Owner) to reconstruct the dock area serving the boats. These Owners shall have the right to use the boat slip assigned to such Owner by the Declarant in writing, subject to the rules and regulations that may be adopted by Declarant, it’s successors and assigns from time-to-time, none of which may unreasonably interfere with or impair such right of use, and subject to the rights given to Declarant by governmental authorities for same.
It is assumed that over the water building sites will require a dock structure to access the house and these dock structures are permissible and are limited to a maximum length of 35 feet. Docks, boat slips and other facilities constructed or to be constructed by the Retreat in the areas shown on Exhibit A, shall provide access by Owners and their guests to the water. Commercial and other uses, without limitation, may be made by the Retreat, its successors and assigns, to all portions of the Retreat’s facilities.
20.) COAST ACCESS AND USE: Panamanian law reserves the first twenty-two point eight (22.8) meters (74.784 feet) of coastline for the purposes of free access and use by all persons. Owners and their renters and guests shall take no action that impedes such access and use.
21.) WATERCRAFT: All motorized or sailing vessels which exceed the length and/or horsepower ratings referred to in Paragraph 19 (PIERS AND DOCKS) of this Article shall be docked at the Retreat wharf or moorings at a cost set out by the Retreat. Jet-skis or other similar jet driven watercraft shall not be allowed. Long-term liveaboards (over 60 days) shall be allowed if those aboard are in the process of constructing a house on one of The Lots.
22.) WATER POLLUTION: Sewage, litter, debris, or hazardous wastes shall not be placed, or be caused to be placed in the ocean, drainage ditches, or other water bodies.
23.) TRASH DISPOSAL: Trash items shall be separated for recycling purposes when possible and all non-recyclables brought to The Properties shall be the sole responsibility of the end user. Lots shall not be used or maintained as a dumping ground for trash. Individual Owners are prohibited from establishing inorganic waste landfills on any Lots. Owners are strongly encouraged to establish organic compost sites on their Lots to help minimize waste and improve gardening activity on the farm. There shall be no burning of inorganic waste on The Properties and disposal of said waste shall be voluntarily accepted in a communal landfill operated by The Declarant with a set fee of $5.00 per large size grocery bag. If necessary, fees can be reasonably increased at the discretion of The Declarant as a financial deterrent that may extend the lifespan of the landfill. The Declarant is not obligated to operate the landfill but shall do so as a community service until such time as he/she chooses to cease service operation and/or when the landfill reaches capacity, as ultimate responsibility for any and all trash lies with each individual end user.
24.) UTILITY PROVISIONS: Utility provisions on each Lot shall be the responsibility of each Owner. Each Lot shall be self-sufficient with respect to utility provision. Wiring, cabling, piping, or other connections to utilities, storage units, and services shall be underground, underneath the house, and/or out of sight. Variances from this section shall not be allowed unless approved in writing by the Board. Utility maintenance shall be the responsibility of each Owner unless provided for under a separate maintenance contract with the Association, the Declarant or an outside service contractor as set forth in the Fee Table in Exhibit C, which may be amended from time-to-time by the Board.
(a.) Selection of electrical power supply shall be limited to solar and wind supply systems. Generators and other such power supply sources may not be used as a primary power source, but only for construction purposes and as an emergency back-up power source for charging batteries, provided that under no circumstances they become an annoyance or a nuisance to other Owners. Incendiary power sources shall not be allowed. All generators shall be housed in a concrete and block, sound minimizing structure.
(b.) Water supply shall be the responsibility of each Owner individually .
(c.) Sewer systems shall be either aerobic composting systems or other ecologically sound self-contained sewage disposal systems. Conventional septic tanks and/or drain field systems shall not be allowed.
(d.) Gray water systems shall consist of an ecologically sound online gray water collection system with strainer and on-site drain fields.
25.) CONFLICT RESOLUTION: In the event of any conflict between the use restrictions set forth in this Article and any use restriction or regulation of any applicable governmental agency having jurisdiction over the Properties, the more stringent use restrictions shall control. As well, all Properties specific conflicts between Owners, the Association, The Retreat, The Declarant and/or bordering neighbours will be guided through a process of arbitration at the Board level. Parties to the conflict will present their cases to the Board under full scrutiny of Association members. A minimum of one (1) Association member, one (1) Board member and one (1) Retreat representative will participate in a consensus building meeting to find a suitable resolution in keeping with this Declaration. If no resolution is found then the Board, with due consideration to all thoughts and issues presented during the consensus building meeting, will present their findings to the government assigned Corregidor for the local area of Isla San Cristobal for binding arbitration that will resolve the conflict.
ARTICLE VII
GRANT AND RESERVATION OF EASEMENTS
The Declarant reserves for itself, its successors and assigns, and for the Association, the following perpetual easements:
1.) UTILITIES: Easements, for ingress, egress, installation, replacement, repair, and maintenance of all public and private utilities and conveniences, upon all Common Areas, and five feet in width along the front, rear, and side line of each Lot.
2.) SECURITY: A blanket easement throughout the Properties for any security services that may be provided.
3.) CONSTRUCTION EASEMENT: An exclusive easement is hereby reserved for the benefit of Declarant, its agents, employees, successors and assigns, for the purposes of construction on any Lot.
4.) FUTURE EASEMENTS: Declarant reserves the right to impose further restrictions and to grant or dedicate easements on any Lot within the Property if same would enhance the value or desirability of the Properties.
5.) DRAINAGE: A blanket easement throughout the Lots and Common Areas for the drainage of rain and other surface water.
ARTICLE VIII
USE OF COMMON AREAS AND RIGHTS THEREIN
1.) DESCRIPTION: The Common Areas shall be as depicted in Exhibit B.
2.) OWNERS EASEMENTS OF ENJOYMENT: Each Owner shall have an easement of use and enjoyment in and to the Common Areas that shall be appurtenant to and shall pass with the title to each Lot, subject to the following provisions:
(a.) The right of the Declarant or the Association at any time to make such use of the Common Areas as may be necessary or appropriate to perform the duties and functions that it is obligated and permitted to perform, pursuant to this Declaration.
(b.) The right of the Declarant at any time to construct and maintain recreational facilities on, over, under, and above the Common Areas, for use by the Owners and retreat guests and, with Board approval, for use by other persons.
(c.) The right of the Declarant to charge reasonable access and other fees for the use of any recreational facility situated on the Common Areas.
(d.) The right of the Declarant to construct and maintain storage and maintenance facilities on the Common Areas for use by the Association or the Declarant.
(e.) The right of the Declarant to dedicate, transfer, assign, or grant permission to use all or any part of the Common Areas by any governmental subdivision, public agency, authority, or public or private utility or corporation, for such purposes and subject to such conditions as may be agreed to by the Declarant.
3.) DELEGATION OF USE: An Owner may delegate, in accordance with and subject to the limitations of the rules and regulations promulgated by the Board from time-to-time, their right of enjoyment of the Common Areas to family members, guests, or renter/lessees using their Lot.
4.) COMMON AREAS DAMAGE: General maintenance of the Common Areas shall be the expense of the Owners through their annual Assessment Fees, as set forth in the Fee Table in Exhibit C. Damage to Common Areas by an Owner, members of their family, their agent, employee, invitee, licensee, or tenant, shall be the responsibility of the Owner. Repairs of such damage shall be made within thirty (30) days of the damage
occurrence. Damaged areas shall be restored to substantially the same condition that they existed in prior to the damage. In the event of an Owner’s
failure to comply with the requirements of this section, following written notice thereof to such Owner of its intention, the Board shall be authorized to repair damage to Common Areas to achieve compliance, the expense of which shall then be recoverable by the Board as set forth in the Fee Table in Exhibit C.
5.) NUISANCE: Noxious or offensive trade or activity by an Owner, their guests and/or clients of the Retreat shall not be allowed on the Common Areas. Nothing shall be performed by an Owner or guest thereon which may be or may become an annoyance or nuisance to the Declarant, and/or the Retreat operation.
ARTICLE IX
GENERAL PROVISIONS
1.) Enforcement: The Association, or an Owner, shall have the right to enforce, by any proceeding at law or in equity, all restrictions, conditions, covenants, reservations, liens, and charges now or hereafter imposed by the provisions of this Declaration. It is agreed that the first and primary proceeding shall be at the Board level referred to in Article VI, Section 23 (Conflict Resolution) of this document. If, at the Board level, a resolution cannot be reached and binding arbitration through a Panamanian Corregidor is not enforced and/or followed, then external proceedings will be sought out within relevant institutions of the Panamanian legal system. Failure by the Association or an Owner to enforce any covenant or restriction herein contained shall in no event be deemed a waiver of the right to do so thereafter.
2.) Severability: Invalidation of any one of these covenants or restrictions by judgment or court order shall in no manner affect any other provisions which shall remain in full force and effect.
3.) Amendment: The covenants and restrictions of this Declaration shall run with and bind the land, for a term of twenty-five (25) years from the date this Declaration is recorded, after which time they shall be automatically extended for successive periods of ten (10) years. This Declaration may be amended during the first twenty-five (25) year period by an instrument signed by not less than ninety (90%) percent of the Owners, and thereafter by an instrument signed by not less than seventy-five (75%) percent of the Owners, except that the Estimated Initial Budget and Estimated Annual Budget shall be amended solely as approved by the Board from time-to-time.
3.1) Dissolution: Whereas this Declaration is inextricably linked to the title of individual Lots, dissolution of this contract between individual Owners and The Declarant can only occur by an Owner transferring his his/her Lot title to another party, who shall, upon acquisition of said Lot, be contractually obligated to this contract. Owners who sell are obligated to inform any potential new Owner that these covenants are inextricably linked to the title being transferred.
4.) Title: Title to a Lot may be held or owned by any persons and any entity or entities and in any manner in which title to real property may be held or owned in the Province of Bocas del Toro, Panama.
5.) Inseparability: Every gift, device, bequest, transfer, encumbrance, conveyance, or other disposition of a Lot and house thereon shall be presumed to be a gift, device, bequest, transfer, encumbrance, conveyance or other disposition, respectively, of the entire Lot, together with all other appurtenant rights and obligations created by law or by this Declaration.
6.) Notice: Any notice required to be sent to an Owner under the provisions of this Declaration shall be deemed to have been properly sent when e-mailed, to the last known e-mail address of the person or entity who appears as the Owner on the records of the Association at the time of such mailing and the address of the Lot. It shall be the responsibility of Owners to keep the Secretary of the Association informed of current contact information.
7.) Costs and Attorney’s Fees. The Association shall be entitled to recover all costs and reasonable attorney’s fees and expenses from an Owner for the enforcement of any provision provided for herein.
8.) Right of First Refusal with Bonafide Offer: In the event that an Owner desires to sell a Lot, and has received a Bonafide Offer (as defined below) from a third-party to purchase the Lot, he shall first send written notice to the Association, and provide a true copy of such Bonafide Offer to the Association. For purposes of this Section, the term “Bona Fide Offer” shall mean a written offer made at arm’s length that includes an earnest money deposit of at least ten percent (10%) of the total offer price. The written notice shall offer to sell the Lot to the Association for the same amount and upon the same terms and conditions as the Bonafide Offer. The Association shall have the first right and option to purchase the Lot. The Association shall have fifteen (15) days in which to accept or reject the offer, and ten (10) days thereafter in which to close the purchase. If the offer to sell is rejected, or is not accepted in writing within fifteen (15) days of the written offer, or the purchase is not closed by the Association within twenty-five (25) days after the Association receives written notice from the Owner of his desire to sell, then the offering Owner may sell the Lot pursuant to the Bonafide Offer free of the restrictions in this paragraph; provided, that the Lot may not be sold for any lesser amount or upon different stated terms, or to a party not identified in the notice of the Bonafide Offer, without first complying in full with the terms of this paragraph.
8.1) Right of First Refusal Without Bonafide Offer: In the event any Owner wishes to sell, transfer or otherwise convey a Lot and has not received a
Bonafide Offer for same, the Owner shall give written notice of his desire to sell to the Association and the other Owners, and the Association shall have the first right and option to purchase the Lot at a price mutually agreeable to the selling Owner and the Association. If the Association declines to pursue purchase of the Lot within thirty (30) days of the written offer, then the selling Owner may begin negotiations with the other Owners for purchase of the Lot. If neither the Association nor any existing Owner or Owners elect to purchase the Lot within 40 days of the written offer to the Association, the offering Owner may sell, transfer or convey the Lot free of the restrictions of this paragraph.
9.) Retreat Membership: Each Owner, upon completion of the purchase of a Lot within the Finca Buena Vida Seaside Neighbourhood, shall become a member of Home on Dolphin Bay, our wellness retreat. This membership can be assigned to a maximum of two adults and three minors under the age of eighteen or four adults as per the occupancy limits of the Lots. This membership conveys to the holder discounts on all regularly available services as well as any special event activities and/or services provided by the Retreat. Membership is transferred with the title of individual Lots.
10.) Retreat Operations: The Retreat or it’s assigns are obligated to operate a viable business model servicing the needs of its guests as they relate to holistic health and arts programming for a minimum period of four (4) years from the first day of public operation. If The Retreat or it’s assigns fail to make available the services and activities defined as the business of the Retreat for any period of more than ninety (90) consecutive days per year during the four (4) year minimum, then The Declarant is obligated to pay to each Owner financial compensation in the amount of Five Hundred Dollars ($500.00). The Retreat can approach The Association with a request to suspend business activities and with a two-thirds majority vote among Board members voting in favour of allowing this clause to be temporarily suspended for a duration agreed to by The Association and The Retreat, The Retreat can suspend normal Retreat business operations without incurring any financial penalties payable to Owners. This suspension of business activities will in no way extend the four (4) year minimum period of required operation and, if invoked, will be included as part of such.
11) Multiple Lot Sales: In the event that The Declarant chooses to sell multiple Lots at reduced prices in order to expedite the larger project, Owners will have first right of refusal to purchase any or all Lots that are made available at the reduced price in order of original purchase dates with earliest in offered this option first. The agreed upon reduction will be set below current market value at the time of sale.
12) Sale of the Retreat Operation: If the Retreat chooses to sell it’s business operation, then Owners, in order of original first purchase will have the first right of refusal to purchase the business of the Retreat at current market values.
APPENDIX:
i) EXHIBIT A – Project Site Plan (click here)
ii) EXHIBIT B – Fee Table (below)
ANNUAL ASSESSMENTS: The initial Annual Assessment is $200.00 per Lot due and payable at closing. The Annual Assessment shall be adjusted yearly by the Board based on current costs of providing services as approved by the Board. The Annual Assessment Fee covers maintenance of common areas and the shoreline and includes landscape maintenance, litter and storm debris removal, and any similar work in said areas.
NEGLIGENCE FEES:
The following fees shall be assessed to the Lot requiring same (for the structure thereon or on which the damaging party is visiting or residing), in an amount equal to the actual cost thereof plus the percentage shown below:
Property Maintenance Fees (structure and landscaping) 25%
Common Area Damages Fees 25%
Inappropriate Trash Disposal Fees 50%
(1) Property Maintenance fees (structure) shall apply to a Lot for each occurrence if the user of a Lot is on-premises but does not comply with the property maintenance requirements promulgated by the Board from time-to-time. Fees for property maintenance (structure) shall apply for each occurrence if the Owner is off-premises, but the property is left by any party in a condition so as to not comply with the the property maintenance requirements promulgated by the Board from time-to-time.
(2) Property Maintenance fees (landscaping) shall apply to a Lot for each occurrence if the Owner of a Lot is either off or on-premises but does not comply with the property maintenance requirements promulgated by the Board from time-to-time. Fees for property maintenance (landscaping) shall apply for each occurrence if the Owner is off-premises, but the property is left by any party in a condition so as to not comply with the property maintenance requirements promulgated by the Board from time-to-time.
(3) Common Areas Damage fees shall apply to a Lot when such damage is caused by a negligent, reckless or torteous act of an Owner, or the Owner’s family members, agents, employees, invitees, licensees, or tenants.
(4) Inappropriate Trash Disposal fees shall apply to a Lot for each occurrence if the user of a Lot is on-premises but does not comply with the trash disposal restrictions promulgated by the Board from time-to-time, such that remedial action (i.e. removal, disposal, and/or storage at another location) is necessary. Fees for inappropriate trash disposal shall also apply for each occurrence if the Owner is off-premises, but the Lot is left by any party in a condition so as to not comply with the trash disposal restrictions promulgated by the Board from time-to-time, such that remedial action (i.e. removal, disposal, and/or storage at another location) is necessary.
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