Porters Point Covenants Amendment - 20112011012776
FOR REGISTRATION REGISTER OF DEEDS
JENNIFER H. MACNEISH
NEW HANOVER COUNTY, NC
2011 MAY 10 03:03:34 PM
BK:5562 PG:1571-1608 FEE:$122,00
(Top portion for recording purposes)
THIS DOCUMENT REGULATES OR PROHIBITS THE DISPLAY OF POLITICAL
SIGNS
THIS DOCUMENT REGULATES OR PROHIBITS THE DISPLAY OF THE FLAG OF
THE UNITED SATES OF AMERICA OR STATE FLAG OF NORTH CAROLINA.
AMENDED AND RESTATED
DECLARATION OF
COVENANTS, CONDITIONS, AND RESTRICTIONS
FOR THE
PORTER'S POINTE COMMUNITY
THIS AMENDED AND RESTATED DECLARATION ("Declaration") is made on the
date hereinafter set forth by First Troy SPE, LLC, a North Carolina limited liability company,
successor in interest to Porter's Pointe, LLC (hereinafter collectively referred to as "Declarant"):
WITNESS TO:
WHEREAS, Declarant has previously recorded that certain Declaration of Covenants,
Conditions and Restrictions for the Porter's Pointe Community ("First Declaration") in Book
5178 at Page 1 in the Office of the Register of Deeds for New Hanover County.
WHEREAS, the purpose of said First Declaration and the purpose of this Declaration is
to provide for the maintenance and upkeep of the common area within the Subdivision,
including, but not limited to the private roadways, alleys and streets, and to provide for
enforcement of covenants and restrictions applicable to the Subdivision, and, to that end, desires
to create a planned community pursuant to the provisions of Chapter 47F of the General Statutes
of North Carolina (the "Act"), and to subject all of the property within the Subdivision to the
covenants, conditions, restrictions, easements, charges and liens hereinafter set forth, each and
all of which is and are for the benefit of said property and each owner thereof;
WHEREAS Article XII, Section 3 of said First Declaration provides that the First
Declaration may be amended with the consent of the Owners entitled to cast at least eighty
percent (80%) of the votes in the Association and, under certain conditions, the consent of the
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Declarant. Such amendment shall be effective upon recording of same in the applicable public
registry for New Hanover County, North Carolina.
WHEREAS, Declarant is, as of the date of the amendment, entitled to cast more than
eighty percent (80%) of the votes in the Porter's Pointe Homeowners Association, Inc.
NOW, THEREFORE, Declarant declares that certain real property located in New
Hanover County, North Carolina, which is more particularly described on Exhibit "A" attached
hereto (hereinafter sometimes referred to as the "Properties") and such additions thereto as may
hereafter be made pursuant to Article II hereof, is and shall be owned, held, transferred, sold,
conveyed, used and occupied subject to the covenants, conditions, restrictions, easements,
charges and liens set forth in this Declaration, all of which shall run with the real property and be
binding on all parties owning any right, title or interest in said real property or any part thereof,
their heirs, personal representatives, successors and assigns, and shall inure to the benefit of each
owner thereof.
It is the intent of the Declarant that this Amended and Restated Declaration of Covenants,
Conditions and Restrictions for the Porter's Pointe Community shall supercede and replace the
covenants, conditions, and restrictions recorded in Book 5178 at Page 1 in the New Hanover
County Registry.
ARTICLE I
DEFINITIONS
Section 1. "Act shall mean and refer to Chapter 47F of the General Statutes of Carolina,
designated as the North Carolina Planned Community Act.
Section 2. "Association" shall mean and refer to the PORTER'S POINTE
HOMEOWNERS ASSOCIATION, INC. a North Carolina non-profit corporation, its successors
and assigns.
Section 3. "Builder" shall mean and refer to any persons, firms or entities to whom or
which Declarant conveys one or more Lots within the Properties for the purpose of constructing
a Dwelling thereon.
Section 4. "Common Area" shall mean and refer to any and all real property, together
with any improvements thereon, shown on any recorded subdivision plat of the Properties, with
the exception of any Lots, as said term is defined in this Declaration. Common Area includes all
private roadways, alleys and streets within the Subdivision. Except as otherwise provided in this
Declaration, the Common Area shall be maintained by the Association or its successors in
interest unless dedicated to public use as set forth herein.
Section 5. "Declarant" shall mean and refer to First Troy SPE, LLC., a North Carolina
limited liability company. It shall also mean and refer to any person, company or entity to whom
or which Declarant shall assign or delegate the rights and obligations of Declarant by an
assignment of Declarant's rights recorded in the applicable public registry for New Hanover
County, North Carolina.
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Section 6. "Lot" shall mean and refer to any plot of land, with delineated boundary lines,
shown on any recorded subdivision plat of the Properties. In the event that any Lot is increased
or decreased in size by recombination or resubdivision through recordation of new subdivision
plats, any newly -platted Lot shall thereafter constitute a Lot.
Section 7. "Member" shall mean and refer to every person or entity who or which holds
membership in the Association.
Section 8. "Owner" shall mean and refer to the record owner, whether one or more
persons or entities, of fee simple title to any Lot which is a part of the Properties, including
contract sellers, but excluding those having an interest in a Lot solely as security for the
performance of an obligation.
Section 9. 'Properties" shall mean and refer to the property described in Exhibit A to this
Declaration and any additional property annexed pursuant to Article II of this Declaration.
Section 10. "Unit" or "Dwelling" shall mean and refer to any building or portion thereof
within the Properties which is designated and intended for use and occupancy as a residence by a
single family, whether by the Owner of such Unit or by tenants or lessees of such Owner.
ARTICLE II
PROPERTY SUBJECT TO THIS DECLARATION
AND WITHIN THE JURISDICTION OF THE
PORTER'S POINTE COMMUNITY
Section 1. Existing Property. The real property which is and shall be held, transferred,
sold, conveyed, used and occupied subject to this Declaration as of the date of recording hereof,
which is within the jurisdiction of the Association, and which is described on Exhibit A attached
hereto.
Section 2. Annexation of Additional Property. At any time prior to December 31, 2028,
additional land within the property described in Exhibit B attached hereto and made a part hereof
(the "Exhibit B Property") may be annexed by the Declarant without the consent of the Members
and therefore become subject to this Declaration by the recording by Declarant of a plat showing
such property to be annexed and of a supplementary declaration extending the operation and
effect of this Declaration to the property to be annexed. Furthermore, at any time Declarant owns
any Lot within the Properties, additional land not within the Exhibit B Property may be annexed
by the Declarant without the consent of the Members and therefore become subject to this
Declaration by the recording by Declarant of a plat showing such property to be annexed and of
a supplementary declaration extending the operation and effect of this Declaration to the
property to be annexed. Any property annexed must be contiguous to property already subject to
this Declaration. Any property annexed pursuant to this subsection may be annexed and
subjected to this Declaration as one parcel or as several parcels at different times. The addition of
such property pursuant to this Section may increase the cumulative number of Lots within the
Properties and, therefore, may alter the relative maximum voting strength of the various types of
Members.
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A supplementary declaration may contain such complementary additions to and
modifications of the covenants and restrictions contained in this Declaration, including, without
limitation, different voting rights and different annual and special assessments for the Lots or
Units so annexed, as Declarant, in its sole discretion, may deem necessary or appropriate to
reflect the different character or use of the property added. In no event, however, shall any
supplementary declaration revoke, modify or add to the covenants and restrictions established by
this Declaration so as to materially and adversely affect any portion of the Properties already
subject to this Declaration. A supplementary declaration annexing additional property need only
be executed by the Declarant and, if applicable, by the owner of the property being annexed, and
shall not require the joinder or consent of the Association or any of its Members.
Nothing contained in this Article shall be construed to obligate or require Declarant to
make any additions to the Properties.
Section 3. Conveyance of Common Area in Annexed Propertv. Promptly upon request of
Declarant, the owner of the annexed property shall convey any or all Common Area located
within the newly annexed property to the Association or, if requested by the Declarant, to the
Declarant. Title to such Common Area shall be conveyed in the same manner as set forth in
Section 3 of Article IV of this Declaration.
Section 4 Merger. Additional property may also be made subject to this Declaration by
merger or consolidation of the Association with another non-profit corporation formed for the
same or similar purposes in accordance with the provisions of Sections 2-121 of the Act. The
surviving or consolidated association shall administer the covenants and restrictions established
by this Declaration within the Properties and the covenants and restrictions established upon
property owned by the other association as one scheme. No such merger or consolidation shall
cause any revocation, change or addition to this Declaration.
Section 5. Effect of Addition of Property. Except by amendment of this Declaration as
provided in Section 3 of Article XIII hereof, no addition of property, whether by annexation,
merger or consolidation, shall revoke or modify any provision of this Declaration as to the
Properties already subject hereto or diminish the rights of the Owners of Lots and Units within
the Properties, except for the dilution of voting strength that occurs as a result of inclusion of
additional Members of the Association.
Section 6. Withdrawal of Property. Declarant reserves the right to amend this
Declaration so long as it has a right to annex Additional Property pursuant to this Article for the
purpose of removing any portion of the Properties then owned by Declarant or the Association
from the coverage of this Declaration, to the extent originally included in error or as a result of
any changes whatsoever in the plans for the Subdivision, provided such withdrawal is not
unequivocally contrary to the overall, uniform scheme of development for the Subdivision.
Section 7 Good Faith Lender's Clause. Any violation of these covenants, conditions or
restrictions shall not affect any lien or deed of trust of record held in good faith, upon any Lot or
commercial Unit, which liens may be enforced in due course, subject to the terms of this
Declaration.
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ARTICLE III
MEMBERSHIP AND VOTING RIGHTS
Section 1. Membershin. Every Owner of a Lot which is subject to assessment by the
Association shall be a Member of the Association. Membership shall be appurtenant to and may
not be separated from ownership of any Lot which is subject to assessment.
Section 2. Voting Rights. The voting rights of the membership shall be appurtenant to the
ownership of the Lots and may not be separated from ownership of any Lot.
There shall be two classes of Lots with respect to voting rights:
(a) Class A Lots. Class A Lots shall be all Lots except Class B Lots as the same are
hereinafter defined. Ownership of a Class A Lot shall entitle the Owner of such Lot to one (1)
vote. When more than one person owns an interest (other than a leasehold or security interest) in
any Lot, all such persons shall be Members and the voting rights appurtenant to their Lot shall be
exercised as they, among themselves, determine; but fractional voting shall not be allowed, and
in no event shall more than one vote be cast with respect to any Class A Lot.
(b) Class B Lots. Class B Lots shall be all Lots owned by Declarant which have not been
converted to Class A Lots as set forth below. Each Declarant shall each be entitled to nine (9)
votes for each Class B Lot it owns. The Class B Lots shall cease to exist and shall be converted
to Class A Lots upon the earlier of the following to occur: (i) when no Declarant owns any Lots
or Units within the Properties; (ii) upon written waiver of Class B membership by the Declarant
and/or; or (iii) December 31, 2028. When the Class B Lots cease to exist and are converted to
Class A Lots, Declarant shall have the same voting rights as other Owners of Class A Lots.
(c) Declarant's Voting Rights. Until the Class B Lots cease to exist, as provided above,
Declarant shall be vested with the sole voting rights of the Association on all matters (including
election and removal of directors and officers of the Association), except such matters as to
which the Declaration, the Articles of Incorporation, or the Bylaws of the Association
specifically require a vote of the Class A Members.
ARTICLE IV
PROPERTY RIGHTS
Section 1. Owners' Easements of Enjoyment and Access. Except as limited by the
provisions of this Section 1 and by the rules and regulations adopted by the Board of Directors of
the Association, every Owner shall have a right and easement of enjoyment in, use of and access
to, from, and over the Common Area, which right and easement shall be appurtenant to and shall
pass with title to every Lot, subject to:
(a) the right of the Association to charge reasonable admission and other fees for the use
of any recreational facilities situated or constructed on the Common Area and to limit the use of
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such facilities to Owners and to their families, tenants and guests, as provided in Section 2 of this
Article IV.
(b) the right of the Association to suspend the voting rights of an Owner subject to a
hearing or opportunity to present evidence in accordance with Section 4717-3-107.1 of the Act for
any period during which any assessment against his Lot remains unpaid, or for a period not to
exceed sixty (60) days for any infraction of the published rules and regulations of the
Association.
(c) the right of the Association to dedicate, sell or transfer all or any part of the Common
Area to any public or quasi -public agency, authority or utility for such purposes and subject to
such conditions as may be agreed upon by the Members. After Class B Lots cease to exist, no
such dedication or transfer shall be effective unless the Members entitled to at least 80% of the
votes of the entire membership of the Association and at least three -fourths (3/4) of the votes
appurtenant to each Class of Lots agree to such dedication, sale or transfer and signify their
agreement by a signed document recorded in the applicable public registry for New Hanover
County, North Carolina. Nothing herein shall be deemed to prohibit the Board of Directors of the
Association, without consent of the Members, from granting easements over and across the
Common Area to any public agency, authority or utility for the installation and maintenance of
sewage, utility (including cable television) or drainage facilities when, in the opinion of the
Board, such easements are necessary for the convenient use and enjoyment of properties within
the Subdivision. Notwithstanding anything herein to the contrary, the Common Area shall be
preserved for the perpetual benefit of the owners of Lots within the Subdivision and shall not be
conveyed except to a governmental entity or another non-profit corporation organized for similar
purposes.
(d) the right of the Association, to borrow money and, after Class B Lots cease to exist,
with the assent of Members' entitled to at least 80% of the votes of the entire membership of the
Association and at least two-thirds (2/3) of the votes appurtenant to each Class of Lots,
mortgage, pledge, deed in trust, or hypothecate any or all of its real or personal property as
security for money borrowed or debts incurred, provided that the rights of any such lender or
mortgagee shall be subordinate to the property rights of the Members and the Association as set
forth herein.
(e) the right of the Association to exchange all or part of the Common Area for other
property and consideration of like value and utility, provided, however, that, after Class B Lots
cease to exist, any such dedication shall require the assent of the Members as set forth in
subparagraph (c) above, and further provided that, if the Board of Directors of the Association
determines, in its sole discretion, that such exchange is necessary to cure an encroachment or
setback violation on any Lot, the Board may effect such exchange without the consent of or
approval by the Members.
(f) the right of the Association to open the Common Area and, in particular, the
recreational facilities constructed thereon, for use by non-members of the Association.
(g) the right of the Association to expand or add to the Common Area and to improve,
maintain and operate the Common Area.
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(h) the right of the Association to adopt, promulgate and enforce rules and regulations
concerning the use of the Common Area.
(i) the right of the Association to otherwise deal with the Common Area as provided in
the Articles of Incorporation and Bylaws of the Association.
Section 2. Delegation of Use.
(a) Familv. The right and easement of enjoyment and access granted to every Owner by
Section I of this Article may be exercised by members of the Owner's family who occupy the
residence of the Owner within the Properties in New Hanover County, North Carolina.
(b) Tenants: Contract Purchasers. The right and easement of enjoyment and access
granted to every Owner by Section 1 of this Article may be assigned by such Owner to his
tenants or contract purchasers who occupy a residence within the Properties, or a portion of said
residence, as their principal residence in New Hanover County, North Carolina. So as not to
overburden the use of the Properties, if an Owner assigns said right and easement of enjoyment
and access to Owner's tenants or contract purchasers, then so long as such assignment is in
effect, Owner shall forfeit his right and easement of enjoyment and access.
(c) Guests. The right and easement of enjoyment and access granted to every Owner by
Section I of this Article may be delegated to guests of such Owners, tenants or contract
purchasers, subject to such rules and regulations as may be established by the Board of Directors.
(d) Suspension of Rights. The rights of any delegate or assignee of an Owner shall be
suspended by, upon and during suspension of such Owner's rights as provided in Section 7 of
Article XIII of this Declaration.
Section 3. Conveyance of Common Area To The Association. No later than the time
Declarant no longer exercises voting control over the Association as provided in Article III
hereof, Declarant shall convey, and the Association shall accept, fee simple title to all Common
Area within the Properties, and shall reserve for or grant to the Association all Common Area
easements, all subject to such easements, reservations, conditions and restrictions as then may be
of record, and the Association shall accept all such conveyances, grants and reservations,
provided, however, that so long as Declarant owns any Lots within the Properties, Declarant
reserves an easement over and across any Common Area deeded to the Association for the
purpose of constructing and maintaining any improvements on the Common Area as it deems
necessary or advisable, provided that any such improvements must comply with the requirements
of the appropriate governmental authority. Any improvements placed on the Common Area by
Declarant shall become the property of the Association upon completion of such improvements.
Section 4. Regulation and Maintenance of Common Area and Common Area Easements.
It is the intent of the Declarant that the Common Area be preserved for the perpetual benefit of
the Owners.
(a) Regulation of Common Area. The Association may adopt and promulgate rules and
regulations governing the use of the Common Area by Owners and their family, tenants, guests
and invitees. No Owner or other permitted user shall use the Common Area or any portion
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thereof in violation of the rules and regulations contained in this Declaration or subsequently
adopted by the Association.
Without limiting the generality of the foregoing, no Owner or tenant, guest or invitee of
an Owner shall, without the specific prior written consent of the Association: (i) damage or waste
the Common Area or improvements thereon or remove any trees or vegetation therefrom; (ii)
erect any gate, fence, structure or other improvement or thing on the Common Area; (iii) place
any garbage receptacle, trash or debris on Common Area; (iv) fill or excavate any part of the
Common Area; (v) landscape or plant vegetation on Common Area; or (vi) use the Common
Area or any part thereof in a manner inconsistent with or in any way interfering with the rights of
other Owners.
(b) Rights and Responsibilities of the Lot Owners as to Common Area Easements. Each
Owner of a Lot upon which a Common Area easement lies shall pay all property taxes and other
assessments levied against his Lot, including that portion of such tax or assessment as is
attributable to such Common Area easement.
(c) Rights and Responsibilities of the Association as to Common Area. The Association
shall have the right and obligation to ensure that the Common Area is preserved for the perpetual
benefit of the Owners, and, to that end, shall: (i) maintain the Common Area in its natural or
improved state, as appropriate, and keep it free of impediments to its use by the Owners, subject
to the provisions of this Declaration; (ii) procure and maintain adequate liability insurance
covering the Association and its Members, Directors and Officers, against any loss or damage
suffered by any person, including the Owner of the Lot upon which Common Area lies, resulting
from use of the Common Area, and adequate hazard insurance covering the real and personal
property owned in fee by the Association; and (iv) pay all property taxes and other assessments
levied against all Common Area owned in fee by the Association.
(d) Declarant's and Association's Right of Entrv. The Declarant and the Association and
the employees, agents, contractors and subcontractors of each, shall have a non-exclusive right
and easement at all times to enter upon any portion of a Lot reserved or designated as a Common
Area easement for the purposes of: (i) installing and maintaining subdivision entrance signs,
features, fencing and landscaping; and (ii) making such improvements to the Common Area; and
(iii) maintaining the Common Area easement in its natural or improved state.
ARTICLE V
COVENANT FOR MAINTENANCE ASSESSMENTS
Section 1. Creation of the Lien and Personal Obligation of Assessments. Each Owner of a
Lot, by acceptance of a deed therefore, whether or not it shall be so expressed in such deed, is
deemed to covenant and agree to pay to the Association annual assessments and special
assessments, such assessments to be established and collected as hereinafter provided. All
assessments which are unpaid when due, together with interest and late charges set forth in
Section 9 of this Article V and all costs of collection, including reasonable attorney's fees, shall
be a charge against and, a continuing lien upon the Lot against which such assessment is made
subject to § 47F-3-116 of the Act, as amended. Each such assessment or charge, together with
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interest and costs of collection, including reasonable attorneys' fees, subject to notice provided in
accordance with § 47C-3-116(el) of the Act, shall also be the personal or corporate obligation of
the person(s), firm(s) or corporation(s) owning such Lot at the time when the assessment fell
due, but such personal obligation shall not be imposed upon such Owner's successors in title
unless expressly assumed by them. Although unpaid assessments and charges are not the
personal obligation of such Owner's successors in title unless expressly assumed by them, the
unpaid assessments and charges shall continue to be a lien upon the Lot against which the
assessment or charge was made.
It is the intent of the Declarant that any monetary fines imposed against an Owner
pursuant to the Bylaws of the Association or Section 7 of Article XII of this Declaration and
subject to §47F-3-107.1 of the Act shall constitute a lien against the Lot of such Owner to the
same extent as if such fine were an assessment against such Lot.
Section 2. Pumoses of Assessments. The assessments levied by the Association shall be
used exclusively to promote the recreation, health, safety and welfare of the residents of the
Subdivision and, in particular, for: (i) acquisition, improvement and maintenance of properties,
services and facilities related to the use and enjoyment of the Common Area; (ii) repair and
reconstruction of improvements on, the Common Area, including, without limitation, the cost of
repair, replacement and additions thereto and the cost of labor, equipment, materials,
management and supervision thereof; and specifically including maintenance and repair of all
private streets, alleys and roadways within the subdivision; (iii) payment of taxes and public
assessments levied against the Common Area owned by the Association in fee; (iv) procurement
and maintenance of insurance in accordance with the Section 4(c) of Article IV of this
Declaration; (v) employment of attorneys, accountants and other persons or firms to represent the
Association when necessary; (vi) payment of principal and interest on funds borrowed for
Association purposes; (viii) such other needs as may arise; and (ix) payment for the maintenance
and operation of street lights. The Declarant reserves the right to subject the real property in this
subdivision to a contract with Progress Energy Carolinas, Inc. for the installation of street
lighting, which requires a continuing monthly payment to Progress Energy Carolinas, Inc. by
each residential customer. Said monthly payment shall be included in the assessments charged to
each Owner.
Section 3. Annual Assessments.
(a) Maximum Annual Assessment. Declarant shall establish the Maximum Annual
Assessment and initial annual assessment for Class A Lots; thereafter, the terms "Maximum
Annual Assessment", annual assessment, and special assessment shall mean the Maximum,
annual and special assessments applicable to Class A Lots. Until December 31, 2011, the
Maximum Annual Assessment shall be $420 for each Class A Lot.
For so long as a Class B Lot(s) exists, the Board of Directors, in its sole discretion, shall
have the authority to adopt an annual budget without a vote of the membership. Once Class B
Lots cease to exist, the Maximum Annual Assessment may be increased by the Board of
Directors effective January 1 of each year without a vote of the Members, but subject to the
limitation that the percentage of any such increase shall not exceed 10% of the Maximum
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Annual Assessment for the previous year unless such increase is approved as set forth in Section
3(b), below.
(b) Annual Assessments: Ratification of Budgets. After Class B Lots cease to exist, the
Board of Directors shall adopt a proposed budget (including the proposed annual assessment for
each Class of Lots) at least annually. Within 30 days after adoption of the proposed budget, the
Board of Directors shall send a copy of the proposed budget and shall give written notice to the
Members of a meeting of the Members to consider ratification of the budget, such meeting to be
held not sooner than 10 days nor more than 60 days after the mailing of such notice. Such
meeting may, but need not be, combined with the annual meeting of the Members. Except as
required by Section 7 below, there shall be no requirement that a quorum be present in order to
vote on ratification of the budget (although a quorum must be present to vote on other matters).
The budget shall be deemed ratified unless at that meeting Members having a majority of the
votes of the entire membership vote to reject the budget. Notwithstanding the foregoing, if the
budget provides for annual assessments not greater than 10% larger than the assessment in effect
for the immediately preceding year, such budget shall be deemed ratified unless Members having
at least 80% of the votes of the entire membership vote to reject the budget. If the proposed
budget is rejected, the budget last ratified by the Members shall be continued until such time as
the Members ratify a subsequent budget proposed by the Board.
Any annual assessment ratified by the Members shall continue thereafter from year to
year as the annual assessment until changed by the Board and ratified by the Members as set
forth herein.
Section 4. Special Assessments. In addition to the annual assessments authorized above,
the Association may levy, in any assessment year, special assessments for the purpose of
defraying, in whole or in part, the cost of any construction, repair or replacement of a capital
improvement on the Common Area, including fixtures and personal property related thereto, for
repayment of indebtedness and interest thereon, or for any other purpose, provided that any such
assessment shall have the same assent of the Members as provided in Section 3(b) of this Article.
Section 5. Assessment Rate: Collection Period. Except as provided in Section 6 of this
Article V, the annual and special assessments shall be fixed at a uniform rate for all Lots within
each subclass of Lots and may be collected on a yearly, semi-annually, quarterly or monthly
basis, as determined by the Board of Directors.
Section 6. Declarant's Assessments. Notwithstanding any other provision of this
Declaration or the Bylaws of the Association, the Declarant shall not be obligated for, nor
subject to, any annual or special assessment for any Lot or other property that it owns within the
Properties, provided, however, that the Declarant shall be responsible for paying the difference
between: (i) the operating expenses of the Association; and (ii) the total operating revenues of
the Association from all sources including, without limitation, annual and special assessments,
revenues generated from fees charged by the Association for use of the Common Area, and
investment income (said difference being hereinafter referred to as the "Operating Deficit"). For
purposes of this Section, the term "operating expenses" shall not include contributions to any
reserves for replacement, operating reserves, depreciation reserves, capital expenditures, or
special assessments.
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Declarant may, by written notice given by the Declarant to the Association on or before
November 30 of any year, to be effective as of January 1, terminate its obligation to pay the
Operating Deficit and waive its right to exclusion from assessments. In such event, each Lot
owned by the Declarant which contains a Dwelling for which a certificate of occupancy has been
issued shall be assessed at the rate of twenty-five percent (25%) of the annual assessment in
effect for Class A Lots, as the same may change from time to time. Upon sale of such Lot by
Declarant to any other person or entity, such Lot shall be assessed at Class A rate, commencing
on the day on which title to such Lot is transferred to such third party. Notwithstanding any other
provision of this Declaration, a Lot owned by the Declarant which contains a Dwelling occupied
as a residence (but not as a model or sales center) shall be assessed at the rate applicable to Class
A Lots.
Section 7. Notice and Ouorum for any Action Authorized Under Sections 3(a) and 4.
After Class B lots cease to exist, written notice of any meeting called for the purpose of taking
any action authorized under Section 3(a) or 4 shall be sent to all Members not less than ten (10)
days nor more than sixty (60) days prior to the meeting. At such meeting, the presence of
Members, in person or by proxy, entitled to cast twent five (25%) percent of the votes of the
entire membership shall constitute a quorum. If the required quorum is not present, another
meeting may be called subject to the same notice requirements, and if called for a date not later
than sixty (60) days after the date of the first meeting, the required quorum at the subsequent
meeting shall be one-half ('/z) of the required quorum at the preceding meeting.
Section 8. Date of Commencement of Annual Assessments: Amount of Initial and
Subsequent Annual Assessments: Certificate of Payment. Unless a different commencement date
is set by the Board of Directors, the annual assessments provided for herein shall commence as
to all Lots in any phase on the first day of the month following the conveyance of a Lot or Unit
within that phase to an Owner other than the Declarant or a Builder. Unless a lower amount is set
by the Board of Directors and ratified by the Members, the first annual assessment shall be the
"Maximum Annual Assessment" set forth in Section 3 of this Article and shall be prorated
according to the number of days remaining in the calendar year.
The Association shall, upon demand, and for such reasonable charge as the Board of
Directors may determine, furnish a certificate signed by an officer of the Association setting
forth whether the assessments on a specified Lot have been paid. If such certificate states that an
assessment has been paid, such certificate shall be conclusive evidence of payment.
Section 9. Effect of Nonpayment of Assessments: Remedies. An assessment not paid
within ten (10) days after the due date shall incur such late charge as the Board of Directors may
from time to time establish, and, if not paid within thirty (30) days after the due date, shall also
bear interest from the due date at the rate of eighteen percent (18%) per annum or the highest rate
allowed by law, whichever is less. The Association may bring an action at law or in equity
against the Owner personally obligated to pay the same and/or foreclose the lien against the Lot
for which such assessment is due subject to § 47F-3-116 of the Act, as amended. Interest, late
payment charges, reasonable attorneys' fees, and the costs of such action or foreclosure shall be
added to the amount of such assessment. No Owner may waive or otherwise escape liability for
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the assessments provided for herein by non-use of the Common Area or by abandonment of his
Lot.
Section 10. Subordination of the Lien to Mortgages. The liens provided for herein shall
be subordinate to the lien of any first mortgage or first mortgage on a Lot. Sale or transfer of a
Lot shall not affect any assessment lien; however, the sale or transfer of a Lot pursuant to
foreclosure of a first mortgage, or any proceeding in lieu of foreclosure thereof, shall extinguish
the lien of any assessment which became due prior to the date of such conveyance. No such sale
or transfer shall relieve such Lot from liability for any assessment thereafter becoming due or
from the lien thereof; but the liens provided for herein shall continue to be subordinate to the lien
of any first mortgage.
Section 11. Initial Capital Contribution. At the time of closing of each sale of a
Dwelling, including the initial sale of same, a sum equal to one-fourth (1/4) of the annual
assessment for Class A Lots in effect at the time of such sale shall be collected from the
purchaser of such Dwelling and transferred to the Association as part of its working capital. The
purpose of such working capital contributions is to ensure that the Association will have
adequate cash available to defray operating costs, meet unforeseen expenditures or to acquire
additional equipment or services deemed by the Board of Directors to be necessary or desirable.
Amounts paid pursuant to this Section shall not be considered as an advance payment of any
regular or special assessment.
Section 12. Exempt Property. All property dedicated to and accepted by a public
authority and all property owned by a charitable or non-profit organization exempt from taxation
by the laws of the State of North Carolina shall be exempt from the assessments created herein.
Notwithstanding the foregoing, no land or improvements devoted to dwelling use shall be
exempt from said assessments.
ARTICLE VI
RIGHTS OF LENDERS
Section 1. Books and Records. Any owner or holder of a first mortgage on any Lot, or its
agent, shall have the right, during normal business hours, to examine copies of this Declaration,
the Articles of Incorporation, Bylaws, and the books and records of the Association and, upon
written request to the Association, and payment of copying and mailing costs, to receive a copy
of the financial statement for the immediately preceding fiscal year.
Section 2. Notice to Lenders. After Class B Lots cease to exist and upon written request
to the Association, the owner or holder of a first mortgage on any Lot shall be entitled to timely
written notice of:
(a) Any 60-day delinquency in the payment of assessments or charges owed by the
Owner of the Lot securing its loan.
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(b) A lapse, cancellation, or material modification of any insurance policy or fidelity
bond maintained by the Association.
(c) Any proposed action that requires the consent of a specified percentage of owners or
holders of first mortgages on the Lots.
Section 3. Approval of Owners and Holders of First Mortgage. After Class B Lots cease
to exist, unless at least seventy-five percent (75%) of the owners and holders of the first
mortgages on Lots located within the Properties have given their prior written approval, the
Association shall not:
(a) By act or omission seek to abandon, partition, subdivide, encumber, sell or transfer
any real estate or improvements thereon which are owned, directly or indirectly, by the
Association. The granting of easements for utilities or other purposes shall not be deemed a
transfer within the meaning of this subsection. Nothing herein shall be deemed to prohibit the
Association from exchanging Common Area for other real property of like utility and value as
provided in Section 1(c) of Article IV of this Declaration, or to require the approval of such
exchange by the holders of first mortgages on the Lots;
(b) Change the method of determining the obligations, assessments, dues or other
charges which may be levied against a Lot;
(c) Fail to maintain hazard insurance on insurable improvements on the Common Area
on a current replacement cost basis in an amount not less than one hundred percent (100%) of the
insurable value; or
(d) Use the proceeds of any hazard insurance policy covering losses to any part of the
Common Area for other than the repair, replacement or reconstruction of the damaged
improvements.
Section 4. Payment of Taxes and Insurance Premiums. The owners or holders of first
mortgages on Lots, jointly or singly, may pay taxes or other charges which are in default and
which have or may become a charge or lien against any of the Common Area and may pay
overdue premiums on hazard insurance policies or secure new hazard insurance coverage upon
the lapse of a policy covering property owned by the Association. The persons, firms or
corporations making such payments shall be owed immediate reimbursement therefore by the
Association.
ARTICLE VII
EASEMENTS
Section 1. Access and Utility Easements. Easements for the installation and maintenance
of roadways, driveways, walkways, water, gas, telephone, cable television and electric power
transmission lines, sanitary sewer and storm water drainage facilities, and for other public and
private utility installations are reserved as shown on the recorded plats of the Properties. The
Association may reserve or grant easements over the Common Area as provided in Article IV,
Section 1(c), of this Declaration. Within any such easement herein provided, no structure,
planting or other material shall be placed or permitted to remain which may interfere with the
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installation or maintenance of the utilities installed thereon, or which may change the direction of
flow or drainage of water through drainage pipes or channels constructed in such easements.
For a period of thirty (30) years from the date hereof, Declarant reserves, for itself and its
employees, agents, successors and assigns, an easement upon and a right of ingress, egress and
regress on, over and under the Properties for the purposes of constructing and maintaining
roadways, water, sewer, gas, storm water drainage and retention, telephone, cable television, and
electric, and other utility facilities to the extent required by any applicable governmental entity or
deemed by the Declarant to be necessary or convenient for the development, use and enjoyment
of the Properties and the Common Area and for the conduct of construction, sales and marketing
activities. Such right expressly includes the right to cut any trees, bushes or shrubbery, make any
grading of the soil, relocate utility facilities within said easement and take any other similar
action that it deems reasonably necessary or appropriate. After such action has been completed,
Declarant shall grade and seed the affected property and otherwise restore the affected property
to its original condition to the extent practicable, but shall not be required to replace any trees,
bushes or shrubbery necessarily removed. Declarant shall give reasonable notice of its intent to
take such action to each Owner whose Lot is affected.
Section 2. Easements for Governmental Access. An easement is hereby established over
the Common Area and every Lot within the Properties for the benefit of applicable governmental
agencies for installing, removing, and reading water meters, maintaining and replacing water and
sewer facilities, and acting for other purposes consistent with public safety and welfare,
including, without limitation, law enforcement, fire protection, garbage collection and the
delivery of mail.
Section 3. Owner's Easement and Right of Entry for Repair Maintenance and
Reconstruction. If any Dwelling is located closer than five (5) feet from its Lot line, the Owner
thereof shall have a perpetual access easement over the adjoining Lot to the extent reasonably
necessary to perform repair, maintenance or reconstruction of such Dwelling. Such work shall be
done expeditiously and, upon completion of the work, the Owner shall restore the adjoining Lot
to as nearly the same condition as that which existed prior to the commencement of the work as
is reasonably practicable. No fence shall be erected within such area adjoining a Dwelling.
Section 4. Association's Easement and Right of Entrv. The Association, for itself and its
employees, agents, contractors, subcontractors and invitees, shall have a perpetual access
easement over the each Lot to the extent reasonably necessary to perform the maintenance to be
performed by the Association
Section 5. Easement Over Common Area. A perpetual, non-exclusive easement over the
Common Area is hereby granted to each Lot and its Owners, family members and tenants of
such Owners, the occupants of such Lot, and guests and invitees of such Owners, tenants or
occupants, for the purpose of providing access, ingress and egress to and from parking areas and
walkways serving the Properties and to and from adjacent public roads.
Section 6. Easements for Roadway Access. An easement is hereby established for the
benefit of the public over that portion of the Common Area designated as streets, roadways or
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other right-of-ways on the plats of the subdivision, for the purpose of providing access, ingress
and egress to and from to and from adjacent public roads.
ARTICLE VIII
ARCHITECTURAL CONTROL
Section 1. Architectural Approval. The Declarant shall have the sole and absolute right
to determine the style and appearance of the Dwellings, including, but not limited to, flags,
subject to Section 4717-3-121 of the Act, flag poles, flag staffs, fences, walls, buildings,
outbuildings, garages, storage sheds, mailboxes, lawn decorations, structures of any type or color
thereof, grading, landscaping, patio covers and trellises, plans for off-street parking of vehicles
and utility layout, and any other improvements to be built or constructed on any Lot (hereinafter
individually and collectively referred to as "Improvements").
After occupancy of a Dwelling as a residence pursuant to a certificate of occupancy or
other similar certificate issued by the appropriate governmental authority, no Improvements
(including, without limitation, replacement of any previously existing Improvements) shall be
commenced, erected or maintained upon the Properties, nor shall any exterior addition to or
change or alteration thereof be made (including, without limitation, changing materials or color
of any exterior portion of any such Improvements), nor shall a building permit for such
Improvements or change be applied for or obtained, until plans and specifications showing the
nature, kind, shape, heights, materials, color and location of same shall have been submitted to
and approved in writing by the Association or by an Architectural Review Committee ("ARC")
composed of three or more persons appointed by the Board of Directors of the Association. If the
Association or its designee fails to approve or disapprove such proposed Improvements within
60 days after complete plans and specifications have been received by it, approval will not be
required, and this Article shall be deemed to have been complied with. The Association shall
have the right to charge a reasonable fee for receiving and processing each application.
The Declarant and, after the Declarant no longer owns any Lot or Unit within the
Properties, the Association, shall have the right to promulgate and from time to time amend
written architectural standards and construction specifications (hereinafter the "Architectural
Guidelines") which may establish, define and expressly limit the standards and specifications
which will be approved, including, but not limited to, architectural style, exterior color or finish,
roofing material, siding material, driveway material, landscape design and construction
technique. Neither the Association nor the ARC shall approve any Improvements which it
determines, in its sole discretion, not to be in harmony of external design, construction and/or
location in relation to the surrounding structures, topography or the general plan of development
of the Subdivision.
Neither the Declarant, the Association, the Board of Directors, the ARC, nor any member
or employee of any of them, shall have any liability to any person or entity by reason of any acts
taken or omitted by them, or any of them, in good faith pursuant to this Article.
Section 2. Rules and Regulations. The ARC may from time to time recommend to the
Board, and the Board may, in its sole discretion, adopt, promulgate, amend and repeal rules and
regulations interpreting and implementing the provisions of this Article VIII, including adoption
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of detailed architectural guidelines and the imposition of a fee or charge for review of proposed
improvements or modifications.
Section 3. Variances. The ARC may recommend to the Board, and the Board may, by
the vote or written consent of a majority of the members thereof, allow reasonable variances as
to the covenants, conditions or restrictions contained in this Declaration, on such terms and
conditions as it shall require; provided, however, that all such variances shall be in keeping with
the general plan for the improvement and development of the Property. Variances contained in
plans that are inadvertently approved by the ARC as part of the proposed improvements shall not
be considered as having been approved unless specifically approved by the Board in accordance
with the provisions of this Section.
ARTICLE IX
PARTY WALLS
Section 1. General Rules of Law to Apply. The general rules of law regarding party
walls, lateral support in below ground construction and of liability for property damage due to
negligence or willful acts or omissions shall apply to each wall which is built as part of the
original construction of the Dwellings within the Properties and placed on the dividing line
between the Lots, and all reconstruction or extensions of such walls, to the extent not
inconsistent with the provisions of this Article.
Section 2. Sharing of Repair and Maintenance. The cost of reasonable repair and
maintenance of a party wall shall be shared by the Owners who make use of the wall in
proportion to such use.
Section 3. Destruction by Fire or Other Casualty. If a party wall is destroyed or damaged
by fire or other casualty, any Owner who or which uses the wall may restore it, and if the other
Owners thereafter make use of the wall, they shall contribute to the cost of restoration thereof in
proportion to such use without prejudice, however, to the right of any such Owners to call for a
larger contribution from the others under any rule of law regarding liability for negligent or
willful acts or omissions.
Section 4. Easement and Right of Entry for Repair. Maintenance and Reconstruction.
Every Owner shall have an easement and right of entry upon the Lot of any other Owner and the
Common Area to the extent reasonably necessary to perform repair, maintenance or
reconstruction of a party wall and those improvements belonging to his Lot which encroach on
an adjoining Lot or Common Area. Such repair, maintenance, or reconstruction shall be done
expeditiously, and upon completion of the work, the Owner shall restore the adjoining Lot(s) and
Common Area to as nearly the same condition as that which prevailed prior to commencement of
the work as is reasonably practicable.
Section 5. Weather -proofing. Notwithstanding any other provision of this Article, an
Owner who, by his negligence or willful act, causes the party wall to be exposed to the elements,
shall bear the entire cost of furnishing the necessary protection against such elements.
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Section 6. Right to Contribution Runs With Land. The right of any Owner to contribution
from any other Owner under this Article shall be appurtenant to the land and shall pass to such
Owner's successors in title.
Section 7. Certification by Adjoining Property Owner That No Contribution Is Due. If
any Owner desires to sell his Lot, such Owner, in order to assure a prospective purchaser that no
Owner of an adjoining Lot has a right of contribution as provided in this Article, may request the
adjoining property Owner to make a certification that no right of contribution exists, whereupon
it shall be the duty of each adjoining property Owner to make such certification immediately
upon request, and without charge; provided, however that where the adjoining property Owner
claims a right of contribution, the certification shall contain a recital of the amount claimed.
Section 8. Arbitration. In the event of a dispute concerning a party wall or the provisions
of this Article, such dispute shall be resolved pursuant to the provisions of Section 8 of Article
XII hereof.
ARTICLE X
RIGHTS AND RESPONSIBILITIES OF THE ASSOCIATION
Section 1. Responsibilities. The Association, subject to the rights of the Owner set forth
in this Declaration, shall be responsible for the exclusive management and control of the
Common Area and shall keep the Common Area in good, clean and proper condition, order and
repair. The Association shall be responsible for the payment of all costs, charges and expenses
incurred in connection with the operation, administration and management of the Common Area
and the performance of its other obligations hereunder. The Association shall operate and
maintain areas designated by the Declarant as Common Areas, whether or not title to such areas
has been formally conveyed to the Association. The Association shall also be responsible for
enforcement of the covenants and restrictions contained in this Declaration.
Section 2. Manager, The Association may employ and pay for the services of a person or
entity, including the Declarant (the "Manager"), to assist the Association in managing its affairs
and carrying out its responsibilities hereunder and such other persons or entities, including
attorneys and accountants, as the Association deems necessary or advisable, whether such
persons or entities are engaged, furnished or employed by the Manager or directly by the
Association. The Association may enter into a Management Agreement for such management
services upon such terms as the Board of Directors may deem appropriate. The payment of
management fees due to the Declarant may, at Declarant's option, be deferred until such later
date as Declarant, in its sole discretion, deem appropriate. Furthermore, any management fees
due to Declarant may, at Declarant's option, be credited against any assessments due or to be
coming due from the Declarant.
Section 3. Personal Property for Common Use. The Association may acquire and hold
tangible and intangible personal property and may dispose of the same by sale or otherwise,
subject to such restrictions, if any, as may from time to time be provided by the Articles of
Incorporation or Bylaws of the Association.
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Section 4. Insurance: Bonds. The Association shall procure and maintain adequate
liability insurance covering the Association. The Association shall also procure and maintain full
replacement value hazard insurance on real and personal property owned by the Association, and
shall procure and maintain officers', directors' and employees' liability insurance, and such other
insurance as it deems necessary or advisable. The premiums for such insurance shall be a
common expense paid from the annual assessments provided in Article V of this Declaration.
The Association may cause any or all persons responsible for collecting and disbursing monies
of the Association to be bonded.
Section 5. Implied Rights. The Association may exercise any other right or privilege and
take any action authorized by this Declaration, the Association's Articles or Bylaws, or the Act or
the North Carolina Nonprofit Corporation Act (Chapter 55A), as from time to time amended,
and every other right or privilege reasonably necessary to effectuate the exercise of any right or
privilege or the taking of any action authorized herein or therein.
Section 6. Declarant's Reserved Rights; Association's Obligation of Cooperation. The
Association shall accept conveyance of any Common Area conveyed to it, in fee or by easement,
by Declarant or, at the request of Declarant, by an owner of any property within or to be annexed
into the Properties and, upon request of Declarant and without further consideration, shall
execute any document necessary to evidence such acceptance.
Until such time as Declarant and Builders have completed all of the contemplated
improvements and have sold all of the Lots within the Subdivision:
(a) Declarant shall have the right to alter the boundaries of the Common Area, whether or
not it has been previously deeded to the Association, subject to § 47F-3-112 of the Act, and
provided that such alteration does not substantially, materially and adversely affect the function
and use of the Common Area. The Association and each Owner hereby irrevocably appoints the
Declarant as his attorney -in -fact to execute and/or deliver any documents, plats, deeds, or other
written matters necessary or convenient to accomplish the addition of Common Area or
Properties, or both, to create easements as deemed necessary by Declarant, and to adjure the
boundary or boundaries of the Common Area.
(b) Neither the Association nor its Members, nor the use of the Common Area by the
Association and its Members, shall interfere with or impede the completion of the improvements
or the marketing and sale by the Declarant and the Builder of Lots and homes.
(c) Declarant and each Builder shall have the right to make such use of Lots and the
Common Area as may facilitate completion of development and sale of Lots and Units by the
Declarant and the Builder. Without limiting the foregoing, Declarant shall have the right to
maintain or permit the Builder or others to maintain sales offices, model Dwellings and Units,
administrative offices, and construction offices (which may be trailers or temporary or
permanent buildings), or any or all of same, on Lots or the Common Area. Declarant and the
Builder shall also have the right to erect and maintain signs on Lots and/or the Common Area, to
bring prospective purchasers upon the Common Area, to -use the Common Area for sales and
marketing activities for the Subdivision, to grant the right to use the Common Area to a
prospective purchasers or any other individual or group and to conduct any and all other
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marketing activities deemed appropriate by the Declarant, and to permit the Builder and others to
exercise such rights in conjunction with or separate from the Declarant.
(d) Subject to the provisions of Section I(d) of Article IV of this Declaration, Declarant
shall have the right, but not the obligation, to loan money to the Association in such amounts and
upon such terms and conditions as to which the Declarant may agree. Payments due to the
Declarant under any such loans may, at Declarant's option, be credited against any assessments
coming due at any time from the Declarant.
(e) In addition to all other rights of the Declarant, no amendment shall be made to this
Declaration, and no rule or regulation shall be adopted, interpreted or enforced by the
Association, so as to modify the assessments or other charges applicable to the Declarant or a
Builder or assessed against the Lots owned by either, or which shall restrict, impair, or, in
Declarant's sole judgment, materially adversely affect the activities of the Declarant or the
Builder with regard to construction, use of Common Area and delegation of the right to use the
Common Area, or the marketing and sale of Lots by the Declarant and Builder, whether or not
such activities are enumerated in the preceding paragraphs, without the express prior written
consent of Declarant.
In exercising any of the rights provided or granted under this Article X, neither Declarant,
nor the Association shall revoke, modify or amend this Declaration in a manner that reduces the
size of the Common Area to less than, the area required by the appropriate governmental
authority as of the date of this Declaration.
ARTICLE X1
USE RESTRICTIONS
Section 1. Business Use Prohibited. No trade, business, profession, garage sale, moving
sale, rummage sale or other type of commercial activity shall be carried on within any Unit,
except that an Owner or occupant residing in a Unit may conduct business activities within the
Unit so long as (a) the existence or operation of the business activity is not apparent or
detectable by sight, sound, or smell from outside the Unit; (b) the business activity conforms to
all zoning requirements for the Properties; (c) the business activity does not involve regular
visitation of the Unit by clients, customers, suppliers, or other business invitees or door-to-door
solicitation of residents of the properties; and, (d) the business activity is consistent with the
residential character of the Properties and does not constitute a nuisance, or a hazardous or
offensive use, or threaten the security or safety of other residents of the Properties, as may be
determined in the sole discretion of the Board.
The terms "business" and "trade", as used in this provision, shall be construed to have
their ordinary, generally accepted meanings and shall include, without limitation, any
occupation, work, or activity undertaken on an ongoing basis which involves the provision of
goods or services to persons other than the provider's family and for which the provider receives
a fee, compensation, or other form of consideration, regardless of whether: (a) such activity is
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engaged in full or part-time; (b) such activity is intended to or does generate a profit; or, (c) a
license is required.
Notwithstanding the foregoing, the Declarant and the agents and employees of
Declarant, or Builder, shall have the right to: (i) use Lots and improvements erected thereon for
sales offices, field construction offices, storage facilities, and its own general business offices;
(ii) maintain fluorescent -lighted or spot -lighted model homes which may be open to the public
for inspection 7 days per week for such hours as the Declarant or Builder deems appropriate or
necessary; (iii) conduct any other activities on Lots to benefit sales efforts; and (iv) use the
parking facilities on the Common Area for parking for its employees and invitees.
Section 2. Use of Accessory Structures. No tent, shack, barn, car port, metal awnings,
metal utility sheds or other building, other than a Dwelling and its garage, shall be erected on a
Lot, and used temporarily or permanently as a residence. Notwithstanding the foregoing, the
Declarant and, with the approval of the Declarant, a Builder, may use temporary buildings,
offices or facilities in connection with the marketing, sale and construction of Units.
Section 3. Maintenance of Improvements. Each Owner shall maintain in good condition
and repair all improvements constructed upon such Owner's Lot, including, without limitation,
the Dwelling. No Owner shall change the landscaping, exterior design or color of the Dwelling
on such Owner's Lot, including the roof thereof, except in compliance with Article VIII hereof.
Section 4. Storage: Clothes Hanging. No Lot or Common Area shall be used for the
storage of rubbish. Outside clothes hanging devices shall not be permitted.
Section 5. Nuisances. No noxious or offensive trade or activity shall be carried on upon
any Lot or the Common Area, nor shall anything be done thereon which may be or become an
annoyance or nuisance to the neighborhood. No automobile or other vehicle mechanical repairs
or like activity shall be conducted within the Properties other than in a garage and concealed
from public view.
Section 6. Lawns. Each Lot shall be maintained in a neat condition by the Owner thereof.
In this context, the word "Lot" shall include that portion of the property from the outside of the
structure on the applicable Lot to the adjacent paved road surface. All Lots upon which a Unit or
Dwelling has been constructed ("Improved Lots") must have grass lawns; no gravel or similar
type lawns are permitted. For Improved Lots, "Neat" shall require, at a minimum, that the lawn
be regularly cut and fertilized and that mulched areas be regularly re -mulched and kept weeded
so that its appearance is in harmony with the neighborhood. No Owner shall allow the grass on
an Lot to grow to a height in excess of six (6) inches, measured from the surface of the ground.
For unimproved Lots, "Neat" shall require that the Lot is maintained in a sightly condition, free
of debris, rubbish, weeds and high grass and in a prudent and reasonable manner harmonious
with that of other Lots within the Subdivision.
Section 7. Animals. No animals, livestock or poultry of any kind shall be raised, bred, or
kept on any Lot, except that a reasonable number of cats, dogs, and other household pets may be
kept provided they are kept within the residence and are not kept, bred, or maintained for any
commercial purposes or become a nuisance to the neighborhood. No person owning or having
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custody of an animal shall allow the animal to stray or go upon another Owner's Lot without the
consent of such other Owner. No animals shall be permitted on or in the Common Area at any
time except as permitted by the rules and regulations of the Association or by applicable law. All
animals shall be on a leash when outside the Owner's Dwelling. The Owner shall be responsible
for cleaning all droppings from their animals. The Board of Directors of the Association shall
have the right to expel animals from the community for the Owners continuing violation(s) of the
governing documents. The Board shall also have the right to expel dogs from the community for
excessive barking which in the Board's opinion is a nuisance to other Owners.
Section 8. Signs. No signs shall be displayed on any Lot or on or within any improvement
so as to be visible from the exterior of the improvement with the exception of one sign with the
maximum dimensions of 24 inches by 24 inches expressing support of or opposition to political
candidates or other issues which will appear on the ballot of a primary, general or special
election, provided that such political signs shall not be placed on a Lot earlier than forty-five
(45) days before such election and shall be removed within seven (7) days after such election.
The Association may develop uniform sign standards and specifications to which all Owners
must adhere. No sign of any kind shall be displayed in or on the Common Area without the prior
written consent of the Association. Notwithstanding the foregoing, Declarant and, with the
consent of and upon such conditions as Declarant, in its sole discretion, might impose, a Builder
shall have the right to erect and maintain signs of any type and size on any Lot which it owns and
on the Common Area, in connection with the development and sale of the Properties.
Section 9. Water Retention Areas. The Association shall be responsible for maintaining
the portions of the storm water drainage system which are within the Common Area, including
the water quality and quantity standards of the approved plans, to the extent required by law. A
drainage easement is hereby dedicated to the Association for the purpose of maintaining the
storm water system to meet water quality and quantity design standards of the approved plans
and any future governmental laws, rules or regulations.
Each Owner of a Lot which borders a water retention area shall maintain any portion of
that Owner's Lot lying within a retention area free of debris but shall not remove any wetlands
species or do anything that would affect adversely water quality within the water retention area.
Swimming and bathing in water retention areas are prohibited. Docks or other structures
shall not be erected in water retention areas without the prior written consent of the Association.
All other uses of water retention areas shall be subject to the prior written approval of the
Association and such rules and regulations as the Association may adopt from time to time.
Section 10. Vehicles, Boats and Trailers. No vehicle of any kind shall be parked on any
Lot except on a paved parking surface or driveway or within a garage. No truck or vehicle used
primarily for commercial purposes (other than those temporarily present on business), no vehicle
in inoperable condition, no unlicensed vehicle, no recreational vehicle, no camper, no boat and
no trailer may be parked within the Properties, unless kept inside a garage and concealed from
public view. No parked vehicle shall be covered by a "car cover" or other similar covering unless
kept inside a garage and concealed from public view. For the purpose of the preceding sentence,
the term "kept" shall mean present for either a period of more than ten (10) hours or overnight,
whichever is less. The Association shall have the right to tow or remove any boat, trailer, or
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vehicle of any type which is parked within the Premises or kept on any Lot in violation of this
section, at the owner's expense, and the owner of each Lot, by acceptance of their deed, does
grant to the Association such an easement on, across, and upon their Lot as may be necessary to
enforce the provisions set out in this section.
Section 11. Walls. Fences, and Hedges. All walls, fences, planters and hedges shall be
controlled strictly for compliance with this Declaration and architectural standards established by
the Declarant or the ARC. The design, materials and placement of all walls, fences and hedges
shall be approved by the ARC prior to construction pursuant to the approval requirements of
Article VIII, Section 1, of this Declaration.
Section 12. Antennae and Roof Structures. No radio or other electrical towers, aerials,
antennae, , or other devices of any type for the reception or transmission of radio broadcasts or
other means of communication shall be erected, constructed, placed or permitted to remain on
any Lot or upon any improvements thereon, except that this prohibition shall not apply to those
antennae specifically covered by 37 C.F.R. Part 1, Subpart S, Section 1.4000 (or any successor
provision) promulgated under the Telecommunications Act of 1996, as amended from time to
time. The Association shall be empowered to adopt rules governing the types of antennae that are
permissible hereunder and establishing reasonable, non-discriminatory restrictions relating to
safety, location and maintenance of antennae.
An antenna permissible pursuant to rules adopted by the Association may be installed
only if it is approved by the Association pursuant to Article VIII hereof.
Section 13. Visual Obstructions at the Intersections of Streets. No object or thing which
obstructs sight lines at elevations between two (2) and six (6) feet above the roadways within the
triangular area formed by the junction of street curb lines and a line connecting them at points
twenty-five (25) feet from the junction of the street curb lines (or extensions thereof) shall be
placed, planted or permitted to remain on any corner lots.
Section 14. Leased Units. An Owner may lease or sublet his Unit; provided, however,
that any lease or sublease must be for at least six (6) months, in writing and contain the following
provision:
"Tenant shall obey, adhere to and be bound by all provisions of the Declaration Of
Covenants, Conditions And Restrictions For the Porter's Pointe Community, recorded in the
applicable public registry for New Hanover County, North Carolina. Tenant acknowledges that
he has received of a copy such Declaration -and the rules and regulations of the Association and
is familiar with the provisions of same."
If an Owner fails to include said provision in any lease or sublease, it shall be
conclusively deemed to be included and part of said lease or sublease. Owner shall furnish the
Association a copy of any leases or subleases of his Unit.
Section 15. Minimum Size of Dwellings. All Dwellings constructed on any Lot shall
have a minimum of 1,200 square feet of enclosed dwelling area. The term "enclosed dwelling
area" as used in the minimum requirements shall be the total enclosed area within a dwelling,
provided, however, that such term does not include garages, terraces, decks, open porches, and
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like areas; provided, further, that shed type porches, even though attached to the house are
specifically excluded from the definition of the aforesaid term "enclosed dwelling area".
Section 16. Garages. All Single Family Units constructed within the Properties shall
contain an enclosed garage that is either detached from the Unit or permanently attached to and
part of the Unit and such garage shall be large enough to accommodate at least one automobile.
Garage doors shall remain closed at all times except when necessary for ingress and egress.
Section 17. Seasonal or Holiday Decorations. Holiday decorations (e.g., Christmas trees
and lights, pumpkins, Easter decorations) shall be removed from each Lot or residential dwelling
within a reasonable period of time after such holiday passes. The ARC has the sole discretion to
determine what is a reasonable period of time for seasonal or holiday decorations to exist after
the holiday passes and its determination shall be final.
Section 18. Window Coverings. All drapes, curtains or other similar materials hung at
windows so as to be visible from outside the home shall be of a white or neutral background
material.
Section 19. Exterior Lights. All light bulbs or other lights installed in any fixture located
on the exterior of any building or any Sites shall be clear, white or non -frosted lights or bulbs.
Light wattage and placement shall be approved by the ARC.
Section 20. Service Utilities Fuel Tanks, Wood Piles, Trash. All service utilities, fuel
tanks, wood piles and trash and garbage containers are to be enclosed within a fence, wall or
plant screen of a type and size approved by the Declarant or the ARC, so as to preclude the same
from causing an unsightly view from any highway, street or way within the subdivision, or from
any other residence within the subdivision.
Section 21. Curbside Maintenance. Each Owner shall have a duty and obligation to
maintain the roadside curbing along the front of their Lot, and in the case of corner lots, along
the side abutting roadways, in the same condition as originally installed by the Declarant. In the
event any Owner shall fail to do so, the Association after giving such Owner at least ten (10)
days' written notice, shall be authorized to undertake such maintenance at the Owner's expense.
Provided, however, that if the Declarant still owns property in the Subdivision, whether a
developed lot or lots, or a tract or tracts of land for future development, the Declarant shall have
the option of repairing or replacing damaged curbing to its original condition, and the cost of
such repairs or replacement shall constitute a lien in favor of the Declarant against the lot
adjacent to where the repairs or replacements were effected. If such maintenance is undertaken
by the Association or Declarant, the charge therefore and all costs of enforcement and collection
shall be secured by a lien against the Lot as provided in Article V hereof.
Section 22. Flags. Subject to Section 47F-3-121, the design, materials and location of
all flags, flag poles, flag staffs, shall be approved by the ARC prior to installation or display
pursuant to the approval requirements of Article VIII, Section 1, of this Declaration.
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Section 23. Right of ways. If any Owner places any improvement or structure in the
right-of-way, then if requested by the North Carolina Department of Transportation or the
Declarant or the Association or any governmental regulatory agency, the Declarant or the
Association shall have the right to remove such improvement or structure even if ARC had
approved installation of such improvement or structure.
Section 24. Above Ground Swimming Pools. No above ground swimming pool shall be
erected, constructed, placed or permitted to remain on any Lot.
Section 25. Deviations. Declarant at its sole discretion, is hereby permitted to approve
deviations to restrictions in Article XI in instances where in its judgment, such deviation will not
adversely affect the development of the Property as a whole. Such approvals must be granted in
writing and when given will automatically amend these restrictions for that certain Lot only.
ARTICLE XII
STORMWATER PERMIT TRANSFER, RESPONSIBILITIES AND COVENANTS
Section 1. Transfer to and Acceptance by Association. Declarant shall, at its sole cost
required by the North Carolina Stormwater Management Permit No. SW8 060553 issued for the
Properties and any additional North Carolina Stormwater Management Permits, applicable to
the Properties and any amendments additions or replacements thereof (collectively, the
"Permit"). Upon completion of the initial construction of the Stormwater Management Facilities
required b the applicable Permit for the Properties pursuant to this Declaration Declarant shall
transfer the applicable Permit and Declarant's responsibilities under the Permit applicable to the
Properties to the Association. The Association shall accept the transfer from Declarant of the
applicable Permit and responsibilities under the Permit Transfers of any such Permit shall occur
within a reasonable period of time after the date the North Carolina Department of Environment
and Natural Resources allows the transfer of the Permit to occur, or a later date if so elected by
Declarant.
Prior to any such transfer of the Permit, the Stormwater Management Facilities for the
Properties, including any property annexed by Declarant into the Property, shall be certified to
the Association and the State of North Carolina, either by state inspection or by a licensed
engineer, as being in compliance with the applicable Permit prior to such assignment or transfer.
Section 2. Association Indemnification. The Association shall indemnify and hold
Declarant harmless from any loss, cost, claim, fee, fine, suit, damage or expense, including
reasonable attorneys' fees, incurred by Declarant in the defense of any action against Declarant
as the responsible party under the Permit and any Permit applicable to any Properties annexed
into the Property from and after the date Declarant tenders transfer of its responsibilities under
the Permit. The Association shall indemnify and hold Declarant harmless from any loss, cost,
claim, fee, fine suit, damage or expense, including_ reasonable attorneys' fees, incurred by
Declarant in the defense of any action against Declarant as holder of the Permit from and after
the date Declarant tenders transfer of the Permit to the Association following the approval of
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such transfer by the North Carolina Department of Environment and Natural Resources and the
certification of compliance as set forth above. Further, Declarant may bring an action for
snecific performance of the obligations of the Association pursuant to this Section .2.
Section 3. Administration of Permit. From and after the transfer of Declarant's
responsibilities under the Permit applicable to the property annexed into the Property and from
and after transfer of the Permit from Declarant to the Association, the oversight,supervision,
management and administration of the Permit shall be the sole responsibility of the Association.
The Association's duties with respect to the Permit shall be carried out in accordance with the
terms and conditions of the Association Documents, and the Permit. The Architectural Review
Committee is required to review plans for compliance with the built -upon area limit. The plans
reviewed must include all proposed built -upon area. Any approvals given by the Committee do
not relieve the homeowner of the responsibility to maintain compliance with the permitted built -
upon area.
Section 4. Easement for Upkeep and Enforcement. The Association hereby is granted
and conveyed an easement over, under and upon each Lot for the purpose of access to and
upkeep of all Stormwater Management Facilities and to enforce all requirements of the Permit.
In the event Declarant annexes additional property into the Property and transfers the applicable
Permit and Declarant's responsibilities under the Permit to the Association, the Association shall
have, and hereby is granted and conveyed, an easement over, under and upon each annexed Lot
for the purpose of access to and Upkeep of all Stormwater Management Facilities located upon
such additional property and to enforce all requirements of the Permit.
Section 5. Permit Covenants. To ensure ongoing compliance with the Permit as issued by
the Division of Water Quality under NCAC 2H.1000 the following covenants and restrictions are
hereby imposed upon the Property
(a) The maximum allowable built upon area per Lot is 4,015 square feet for lots 1-15,
18-28, and 31-61 and 5,000 square feet for lots 16R & 30R. The allotted amount includes any
built upon area constructed within the property boundaries of a Lot and that portion of the right
of way between the front Lot line and the edge of the pavement of any street abutting such Lot.
Built upon area includes, but is not limited to, structures, asphalt, concrete, gravel, brick, stone,
slate, coquina and parking areas, but does not include raised, open wood decking, or the water
surface of swimmingpools. Built upon area in excess of the permitted amount above stated will
require a modification of the Permit.
(b) Alteration of drainage as shown on the approved plans may not take place without
the concurrence of the Division of Water Quality.
------Lc)—The runoff from all built -upon area on the lot must drain into the permitted
system. This may be accomplished through providing roof drain gutters which drain to the
street, grading the lot to drain toward the street, or grading perimeter swales and directing them
into a component of the stormwater collection system. Lots that will naturally drain into the
system are not required to provide these measures.
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_1d) No Person may pipe, fill in or alter any vegetated drainage swells constituting a
part of the Stormwater Management Facilities constructed pursuant to the Permit.
_ (e) Built -upon area in excess of the permitted amount will require a permit
modification.
(f) No alteration of the drainage for the Stormwater Management Facilities
designated in the Permit and shown on any accompanying approved plans shall occur without the
prior written consent of the Division of Water Quality.
(g) Each lot will maintain a 50 foot wide vegetated buffer between all impervious
areas and surface waters.
The covenants set forth in this Section 5 pertaining to stormwater management run with
the land are binding on all persons claiming under them and may not be altered, rescinded, or
modified without the express written consent of the State of North Carolina, Division of Water
Quality. The State of North Carolina is made a beneficiary of the covenants above stated to the
extent necessary to maintain compliance with the Permit, and such covenants run with the
Property and shall be binding on all Persons and parties claiming under them.
Section 6. Each Owner of a Lot which borders a water retention area, drainage easement or
drainage swale area shall be responsible to maintain any portion of that Owner's lot lying within
a retention area, drainage easement, or drainage swale area free of debris but shall not remove
any wetlands species or do anything that would affect adversely water quality within the water
retention area. No structure of any type shall be permitted within the water retention areas,
drainage easements or drainage swale areas. Swimming and bathing in water retention areas are
prohibited. Docks or other structures shall not be erected in water retention areas without the
prior written consent of the Association. All other uses of water retention areas shall be subject
to the prior written approval of the Association and such rules and regulations as the Association
may adopt from time to time.
ARTICLE XIII
GENERAL PROVISIONS
Section 1. Enforcement. The Association or any Owner shall have the right to enforce, by
proceeding at law or in equity, all restrictions, conditions, covenants, reservations, liens and
charges now or hereafter imposed by the provisions of this Declaration. 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. Further, the Board of Directors shall have the
right to record in the appropriate land records a notice of violation of this Declaration or the
Bylaws of the Association, or any rules, regulations, use restrictions, or design guidelines
promulgated by the Association and to assess the cost of recording and removing such notice
against the Owner in violation of the Declaration.
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Section 2. Severability. Invalidation of anyone of these covenants or restrictions by
judgment or court order shall in no way affect any other provision, which shall remain in full
force and effect.
Section 3. Amendment. For so long as Declarant owns any Lot or Unit within the
Subdivision, this Declaration may be amended by the Declarant, without the consent or joinder
of any other Owner or the Association. Any such amendment shall be effective upon recording
of same in the applicable public registry for New Hanover County, North Carolina. No
amendment shall be binding upon any Lot or Owner until fifteen (15) days after a copy of such
amendment has been provided to such Owner.
The covenants and restrictions of this Declaration, and any amendments thereto, are
appurtenant to and shall run with and be binding upon the Properties and the Owners thereof 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 unless terminated or
amended by a vote of the Owners as set forth below.
Subject to the provisions of Section 8(e) hereof and after Class B Lots cease to exist, this
Declaration may be amended during the first twenty-five year period by an instrument signed by
the Owners of not less than seventy-five percent (75%) of the Lots and terminated during the
first twenty-five year period only in strict compliance with § 4717-2-118 of the Act by an
instrument signed by the Owners of not less than eighty percent (80%) of the Lots, and thereafter
amended by an instrument signed by the Owners of not less than sixty-seven percent (67%) of
the Lots or terminated by an instrument signed by the Owners of not less than eighty percent
(80%) of the Lots, provided, however, that so long as there is Class B membership, no
amendment adopted by the Owners shall be effective unless and until such amendment is
approved in writing by the Declarant. Amendment or termination shall be by written instrument
signed by the appropriate persons or entities and recorded in the applicable public registry for
New Hanover County, North Carolina, and upon recordation, shall be binding on all Lots and
Units within the Properties and the Owners thereof, without regard to whether the Owner of such
Lot voted for or against or signed or did not sign the amendment.
Section 4. Interpretation. Headings used herein are for indexing purposes only and shall
not be used as a means of interpreting or construing any provision hereof. Unless the context
otherwise requires, the use herein of the singular shall include the plural and vice versa: the use
of one gender shall include all genders; and the use of the word "including" shall mean
"including, without limitation". This Declaration and the provisions thereof shall be construed
and enforced in accordance with the laws of the State of North Carolina.
Section 5. Subdivision of Lots. No Lot within the Subdivision may be subdivided by sale
or otherwise so as to reduce the total Lot area shown on the recorded plat, except by or with the
consent of the Declarant and, if required, by the appropriate governmental authority.
Section 6. Declarant's Right To Change Develooment. With the approval of the
appropriate governmental authority, and subject only to such terms and conditions as said
authority may impose, Declarant shall have the right, without consent or approval of the Owners,
to create Lots and Units, add Common Area, and reallocate Lots or Units within the Properties.
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Declarant may convert any lot or lots or any other property subject to these restrictions to use as
a roadway and/or road right-of-way.
Section 7. Riaht to Dedicate Streets. In the event that the streets and roadways providing
access to the Porter's Pointe Subdivision are accepted as public roads by the North Carolina
Department of Transportation, then and in that event, the Declarant and/or the Association shall
petition the North Carolina Department of Transportation to accept the streets and roadways
within the Porter's Pointe Subdivision as public roads.
Section 8. Rules and Regulations: Enforcement. The Board of Directors shall have the
authority to adopt additional rules and regulations governing the use of the Common Area and
the Lots within the Subdivision and shall furnish a written copy of said rules and regulations to
the Owners) of each Lot at least fifteen (15) days before such rules and regulations become
effective.
In addition to any other rights and remedies that the Association may have under the
Bylaws and this Declaration, the Association may impose sanctions for a violation of this
Declaration, the Bylaws of the Association, the rules and regulations adopted Association, and
any restrictive covenants applicable to the Properties, in accordance with procedures set forth in
the Bylaws, and subject to the notice of hearing, evidence, and appeals procedures set forth in
§47F-3-107.1 of the Act, which sanctions may include, without limitation, reasonable monetary
fines not to exceed One Hundred Dollars ($100.00), provided that an additional fine of up to One
Hundred Dollars ($100.00) per day may be imposed for each day more than five (5) days after
the decision that the violation occurs, which shall constitute a lien upon the Lot of the violator,
and suspension of the right to vote and the right to use the Common Area any facilities thereon.
In addition, as provided in the Bylaws, the Association may exercise self-help to cure
violations (specifically including, but not limited to, the towing of Owner and tenant vehicles
that are in violation of parking rules) and may suspend the right of an Owner to use any Common
Area and recreational facility within the Properties if the Owner is more than 30 days delinquent
in paying any assessment or other charge due to the Association.
The Association shall at all times have the right and easement to go upon any Lot for the
purposes of exercising its rights hereunder, including, but not limited to, enforcement of the
architectural guidelines applicable to the Properties. Any entry onto any Lot for purposes of
exercising this power of self-help shall not be deemed as trespass. All remedies set forth in this
Declaration and the Bylaws shall be cumulative of any remedies available at law or in equity. In
any action to enforce its rights and remedies, if the Association prevails, it shall be entitled to
recover all costs, including, without limitation, attorneys' fees and court costs, incurred in such
action.
The Association shall not be obligated to take action to enforce any covenant, restriction
or rule which the Board reasonably determines is, or is likely to be construed as, inconsistent
with applicable law, or in any case in which the Board reasonably determines that the
Association's position is not strong enough to justify taking enforcement actions. Any such
determination shall not be construed as a waiver of the right to enforce such provisions under
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other circumstances or to estop the Association from enforcing any other covenant, restriction or
rule.
Section 9. Dispute Resolution.
(a) Consensus for Association Action.
(1) Except as provided in this Section, the Association may not commence a legal
proceeding or an action under this Article without the approval of at least two-thirds of the
Members. The foregoing shall not apply to: (i) actions brought by the Association to enforce the
provisions of this Declaration, the Bylaws, or rules and regulations adopted by the Association
(hereinafter collectively referred to as the ("Governing Documents"); (ii) the imposition and
collection of assessments; (iii) proceedings involving challenges to ad valorem taxation: or (iv)
counterclaims brought by the Association in proceedings against it.
(2) Prior to the Association or any Member commencing any proceeding to which
Declarant is a party, including, without limitation, a proceeding based on an alleged defect in any
improvement, Declarant shall have the right to be heard by the Members, or the particular
Member, and to have access to inspect and correct the condition of or redesign any portion of
any improvement as to which a defect is alleged or to otherwise correct or resolve the dispute.
(b) Alternative Method for Resolving Disputes. Declarant, its officers, directors,
employees and agents, the Association, its officers, directors and committee members, all
Owners, Members, any Builder, its officers, directors, employees and agents, and any other
person or entity not otherwise subject to this Declaration who agrees to submit to this Section 8
(each such person or entity being herein referred to as a 'Bound Party" or, in groups, as the
"Bound Parties") each agrees to encourage the amicable resolution of disputes, without the
emotional and financial costs of litigation. Accordingly, each Bound Party covenants and agrees
to submit those claims, grievances and disputes described in Subsection (c) hereof (herein
referred to as the "Claims") to the procedures set forth in Subsection (d) hereof.
(c) Claims. Unless specifically exempted below, all Claims between any of the Bound
Parties, regardless of how such Claims might have arisen or on what they might be based,
including, but not limited to, Claims: (i) arising out of or relating to the interpretation,
application or enforcement of the Governing Documents or the rights, obligations and duties of
any Bound Party under the Governing Documents; (ii) relating to the design and construction of
improvements; or (iii) based on any statements, representation, promises, warranties, or other
communications alleged to have been made by or on behalf of any Bound Party, shall be subject
to the provisions of Subsection (d) hereof.
Notwithstanding the foregoing, unless all parties to any such dispute otherwise agree in
writing, the following shall not be deemed to be Claims covered by this Subsection (c) and shall
not be subject to the provisions of Subsection (d):
(1) any proceeding by the Association against any Bound Party to enforce the provisions
of Article V of this Declaration:
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(2) any proceeding by the Association or the Declarant to obtain a temporary restraining
order or injunction (or equivalent equitable relief) and such other ancillary relief as the court may
deem necessary in order to maintain the status quo and preserve the Association's or the
Declarant's ability to act under and enforce the provisions of Articles VIII and XI of this
Declaration;
(3) any proceeding between or among Owners, which does not include the Declarant, a
Builder, or the Association as a party, if such proceeding asserts a Claim which would constitute
a cause of action independent of the Governing Documents; or
(4) any proceeding in which no Bound Party is an indispensable party.
With the consent of all parties thereto, any dispute involving any of the foregoing
excepted actions may be submitted to the alternative dispute resolution procedures set forth in
Subsection (d).
(d) Mandatory Procedures.
(1) Notice. Any Bound Party having a Claim (the "Claimant") against any other Bound
Party (the "Respondent") (the Claimant and the Respondent being herein individually referred to
as a "Party" and collectively as the "Parties") shall notify each Respondent in writing (the
"Notice"), stating plainly and concisely:
(i) the nature of the Claim, including the persons or entities involved and the
Respondent's role in the Claim:
(ii) the legal basis of the Claim (i.e., the specific provisions of the Governing
Documents or other authority out of which the Claim arises);
(iii) the proposed remedy; and
(iv) the fact that Claimant will meet with Respondent to discuss in good faith
ways to resolve the Claim.
(2) Negotiation and Mediation.
(i) The Parties shall make every reasonable effort to meet in person and confer
for the purpose of resolving the Claim by good faith negotiation. If requested in uniting,
accompanied by a copy of the Notice, the Board of Directors of the Association may appoint a
representative to assist the Parties in their negotiations.
( ii) If the Parties do not resolve the Claim within 30 days after the date of the
Notice (or within such other time period as may be agreed upon by the Parties), Claimant shall
have an additional 30 days in which to submit the Claim to mediation under the auspices of the
American Arbitration Association ("AAA") in accordance with the AAA's Commercial or
Construction Industry Mediation Rules, as appropriate.
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(iii) If Claimant does not submit the Claim to mediation within such time, or does
not appear for the mediation. Claimant shall be deemed to have waived the Claim, and
Respondent shall be released and discharged from any and all liability to Claimant on account of
such Claim; provided, nothing herein shall release or discharge the Respondent from any liability
to any person or entity other than the Claimant.
(iv) Any settlement of the Claim through negotiation or mediation shall be
documented in writing and signed by the Parties. If the Parties do not settle the Claim within 30
days after submission of the matter to AAA mediation, or within such other time as may be
determined by the mediator or agreed to by the Parties, the mediator shall issue a written notice
of termination of the mediation process, which notice shall state that the Parties are at an impasse
and set forth the date that mediation was terminated (hereinafter "Termination of Mediation").
(v) Each Party shall bear its own costs of the mediation, including attorneys' fees,
and each Party shall share equally all fees and expenses of the mediator and the administrative
fees of mediation. If the Parties agree to a resolution of a Claim through negotiation or mediation
as set forth in this Subsection (d), and any Party thereafter fails to abide by the terms of the
settlement agreement, any other Party may file suit or initiate arbitration proceedings to enforce
the agreement without the need to again comply with the procedures set forth in this Subsection
(d). In such event, the Party taking action to enforce the agreement shall be entitled to recover
from the non -complying Party (or, if more than one Party is in noncompliance, from all non-
complying Parties pro rata) all costs incurred by such Party in enforcing the agreement,
including, without limitation, attorneys' fees and court costs.
(3) Binding Arbitration.
(i) After Termination of Mediation, Claimant shall be entitled to submit the
Claim to final, binding arbitration under the auspices of the AAA in accordance with the AAA's
Commercial or Construction Industry Arbitration Rules, as appropriate. No Claim subject to this
Subsection (d), whether by the provisions thereof or by agreement of the Parties, shall be
submitted to or decided by or in a court of law. Any judgment upon the award entered by the
arbitrator may be entered in and enforced by a court of competent jurisdiction. If the amount
claimed by the Complainant or, by the Respondent in a counterclaim, exceeds $250,000, the
Claim shall be heard and determined by three arbitrators. Otherwise, unless the Parties otherwise
agree, the Claim shall be heard and determined by an arbitrator. An arbitrator shall have
expertise in the areas) of the Claim, which may include legal expertise if legal issues are
involved.
(ii) Each Party shall bear its own costs of the arbitration, including attorneys'
fees, and each Party shall share equally all fees and expenses of the arbitrator and the
administrative fees of arbitration.
Notwithstanding the foregoing, if a Party unsuccessfully contests the validity or scope of
arbitration in a court of law, the non -contesting Party shall be awarded reasonable attorneys' fees
5/4/2011
and expenses incurred in defending such contest. All decisions regarding the arbitrability of any
Claim shall be decided by the arbitrator(s).
(iii) The award of the arbitrators shall be accompanied by detailed written
findings of fact and conclusions of law. Except as required by law or for confirmation of an
award, neither a Party nor an arbitrator may disclose the existence, content, or results of any
arbitration hereunder without the prior written consent of all Parties involved in the arbitration.
(e) Amendment of Subsection. Notwithstanding any other provision of this Declaration,
this Subsection 8 may not be amended prior to the expiration of 20 years from the date of
recording of this Declaration without the prior written consent of the Declarant.
[SIGNATURES ON FOLLOWING PAGE)
(Remainder of page intentionally left blank)
5/4/2011
DECLARANT:
First Troy SPE, L.L.C.
a North Carolina limited liability company
STATE OF NOPATH qAROLINA
COUNTY OF
I, , a Notaz Pu lic o the C unty of
and for the St to aforesaid, certi ' that J 1 , known to me,
personally came before me this day and acknowledged that they are _U/rn{of
First Troy SPE, LLC,. a North Carolina Limited Liability Company, and fiuther acknowledged the
due execution of the foregoing instrument on behalf of said Limited Liability Company.
Witness my hand and official seal, this the 6A day of
{SEAL -STAMP} Notba'ry Polic
Printed N e:
My Commission Expires: (S s9"°''''"="""d�f�
?, ....
C):
G•
EXHIBIT "B"
Legal Description of Additional property
Being all of the tract of land consisting of approximately 22.062 acres as property described in a
deed to Bill Clark Homes of Wilmington, LLC, a North Carolina limited liability company
recorded in Book 4987 at Page 675, of the New Hanover County Registry, save and except that
property described in Exhibit "A".
CORPORATE RESOLUTION
I, the undersigned President of the Porters Pointe Homeowners Association, Inc., hereby certify that
the Amended and Restated Declaration of Covenants, Conditions and Restrictions for the Porter's
Pointe Community has been consented to in writing by the Owners entitled to cast more than eighty
percent (801/o) votes of the Porter's Pointe Homeowners Association. A written acknowledgement
signed by the requisite owners and the Declarant is attached hereto and has been made a part of the
minute book of the Porter's Pointe Homeowners Association, Inc.
Subscribed and sworn to before me
This the \ 0 day of May, 2011
Notary Public
Print Name ':�PC- S. CP�(LA'Acce—
My commission expires: \ )L-Y t (o - ( t
Porter's Pointe Homeowners Association, Inc.
A North arolina Non -Profit Corporation
By: a
Name: M..,,, , r .4. P ! r.,-
Title: President
{SEAL -STAMP}
GQ;
OONTY.�
JENNIFER H. MACNEISH
REGISTER OF DEEDS, NEW HANOVER
216 NORTH SECOND STREET
WILMINGTON, NC 28401
#*i;#*#;R*#;Rk#RRiiRi#i#tiR4ki;4ki;#*4fR*#fR##RR#iRk#44ik;;R#;Ri#;RkiRfkf;R*#R4i RRf R;#Ri;R*##R##fi#R4*kR##R4R#f;*ffR#fR*
Filed For Registration: 06/10/2011 M03:34 PM
Book: RE 5562 Page: 1571-1608
Document No.: 2011012776
38 PGS $122.00
Recorder: CRESWELL, ANDREA
State of North Carolina, County of New Hanover
PLEASE RETAIN YELLOW TRAILER PAGE WITH ORIGINAL DOCUMENT.
*2011012776*
2011012776