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STATE OF NORTH CAROLINA
COUNTY OF NEW HANOVER
FOR REGISTRATION REGISTER OF DEEDS
REBECCA P SMITH
NEW HANOVER COUNTY, NC
2N7 AUG 22 03:09:27 FM
BK:5222 N:2604-2634 FEE:$i0i m
ICON # W N1211
DECLARATION OF COVENANTS
CONDITIONS AND RESTRICTIONS
FOWEXTON PART(
This Declaration, made the 22°d day of August, 24017, by EXTON PARK, LLC a
North Carolina limited liability company, hereinafter referred to as "Declarant" or
"Developer" for the purposes hereinafter stated;
WITNESSETH:
Whereas, Declarant is the owner of certain real property located in Cape Fear
Township, New Hanover County, North Carolina, known as "PHASE I of EXTON
PARK" which is shown on a plat not yet recorded, which reference is made for a more
particular description (the "Property").
NOW, THEREFORE, Declarant declares that the Property described above shall
be held, sold and conveyed subject to the North Carolina Planned Community Act set
forth in Chapter 47F of the North Carolina General Statutes (the "Act"), as well as the
following easements, restrictions, covenants, and conditions.
ARTICLE 1.
DEFINITIONS
SECTION 1. Additional Pro a shall mean and refer to any lands, in addition to
the above described Property, annexed to and made a part of the Planned Community
(as hereinafter defined) pursuant to the provisions of this Declaration, whether such
lands are now owned or hereafter acquired by Declarant or others, and whether
developed by Declarant or others.
SECTION 2. Allocated Interest shall mean the Common Expense Liability and
votes in the Association albcated to each Lot.
SECTION 3. Asso-- c shall mean and refer to EXTON PARK OWNERS'
ASSOCIATION, INC., a North Carolina non-profit corporation, its successors and
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assigns, the owners association organized pursuant to the Act for the purposes set forth
herein.
SECTION 4. Common 'Elements shall mean and refer to all lands and
easements within or appurtenant to the Planned Community owned or enjoyed by the
Association, other than a Lot, and intended for the common use and enjoyment of the
Owners, including, without limitation, any priyate roads, storm water retention ponds,
and waste water=disposal, systems. Common Elements shall also include any areas
designated on any plats for the Planned Community as "Open Space", "Common Area",
"Common Element", "Recreation Area", "Amenity Area", or other similar designation.
SECTION 5. Common Expenses means expenditures made by or financial
liabilities of the Association, together with any allocations to reserves,
SECTION 6. Common "Expense iability means the liability for Common
Expenses allocated to each Lot as permitted by the Act, this Declaration or otherwise by
law.
SECTION 7. Conservation Areas shall mean and refer to all lands within that
area bounded by the bearings and distances of the line noted as "wetlands" on that map
of survey prepared by Johnny J. Williams Land Surveying, P.G. and signed and sealed
on April 4, 2006; minus that area which has been identified as "permanent impacts"
areas as per the approved United State Corps of Engineers Nationwide Permits 12 and
1$., Action ID # SAW-2047-00925-065,
SECTION 8. Declarant shall be used interchangeably with Developer (which
designations shall include singular, plural, masculine and neuter as required by the
context) and shall mean and refer to EXTON PARK, LLC a North Carolina limited
liability company, its successors and assigns, if such successors or assigns should
acquire undeveloped property from the Declarant or a Lot not previously disposed of for
the purpose of development and reserves or succeeds to any Special Declarant Right.
SECTION 9. Declaration shall mean this instrument as it may be from time to
time amended or supplemented.
SECTION 10. Executive Board or Board shall be used interchangeably with the
Board of Directors and means the body, regardless of name, designated in this
Declaration or otherwise to act on behalf of the Association.
SECTION 11. Limited Common Elements shall mean areas and facilities which
are for the exclusive use of the Lot Owner but which the Association is obligated to
maintain pursuant to the terms of this Declaration. The Limited Common Elements shall
consist of (i) the exterior of all dwellings, including by way of illustration, but not limited
to, roofs, exterior building surfaces, driveways and walkways, gutters and downspouts,
(ii) rear and side yards and other improvements, including by way of illustration, but not
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limited to, travelways, walkways, leaves, shrubs and grass but excluding any privacy
fences for a dwelling, unless said fence is located within a Common Area or Limited
Common Area.
SECTION 12. Lots shall mean and refer to any portion of the Planned
Community designated for separate ownership by a Lot Owner, together with any
dwelling situated thereon.
SECTION 13. Lot Owner or Owner shall mean the Declarant or other Person
who owns fee simple title to any Lot, including contract sellers, but excluding those
having such interest merely as security for the performance of an obligation.
SECTION 14. Master Association. A master association as defined in the "Act".
SECTION 15. Person means a natural person, corporation, business trust,
estate, trust, partnership, association, joint venture, government, governmental
subdivision, or agency or other legal or commercial entity.
SECTION 16. Planned Community shall mean and refer to the Property plus any
Additional Property made apart of it by the exercise of any Special Declarant Right.
SECTION 17. Purchaser means any person, other than a declarant or a person
in the business of selling real estate for the purchaser's own account, who by means of
a voluntary transfer acquires a legal or equitable interest in a Lot, other than (i) a
leasehold interest (including renewal options) of less than 20 years, or (ii) as security for
an obligation.
SECTION 18. Reasonable Attorneys' Fees means attorneys, fees reasonably
incurred without regard to any limitations on attorneys' fees which otherwise may be
allowed by law.
SECTION 19. Special Declarant Rights means rights reserved for the benefit of
a Declarant including without limitation the right (i) to complete improvements indicated _
on plats and plans filed with this Declaration; (ii) to exercise any development right
reserved to the Declarant by this Declaration or otherwise; (iii) to maintain sales offices,
management offices; signs advertising the Planned Community, and models; (iv) to use
easements through the Common Elements for the purpose of making improvements
within the Planned Community or within real estate which may be added to the Planned
Community; (v) to make the Planned Community part of a larger planned community or
group of planned communities; (vi) to make the Planned Community subject to a Master
Association and to enforce the Master Declaration; (vii) to appoint or remove any officer
or Executive Board Member of the Association or any Master Association during the
Declarant Control Period; or (viii) to permit other land to be annexed to and made a part
of the Planned Community in accordance with the terms of this Declaration.
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SECTION 20. Stormwater Permit shall mean State Stormwater Permit
#SW8070434 issued by the North Carolina Division of Water Quality (DWQ),
Department of Environment and Natural Resources (DENR).
SECTION 21. Sanity Sewage Disposal System Permit shall mean State Permit
No.WQ0031955 issued pursuant to NCGS 143.215.1 to construct, maintain and operate
the disposal system serving the Planned Community.
Lot.
SECTION 22, Townhouse or Townhome shall mean the dwelling located on a
ARTICLE ll.
PROPERTY RIGHTS AND EASEMENTS
SECTION 1 Owner 'Property RL 11ts and Easement_of Enjyment
Every Owner shall have and is hereby granted a right and easement of
enjoyment in and to the Common Elements, if any, which shall be appurtenant to
and shall pass with the title to every Lot, subject to the following provisions:
(a) The Association may make and amend reasonable rules and
regulations governing use of the Common Elements by the Owners, and limiting
the number of guests of Members;
(b) The Association may grant a security interest in or convey the
Common Elements, or dedicate or transfer all or part of the Common Elements,
to any public agency, authority or utility for such purposes and subject to such
conditions as may be agreed to by at least 80 percent of the Members, excluding
the Developer; provided, however, that the Association may without the consent
of the Members grant easements, leases, licenses and concessions through the
Common Elements to provide utility service to the property and to maintain the
Common Elements, No conveyance or encumbrance of Common Elements
shall deprive any Lot of its rights of access or support.
SECTION 2. Easements in Favor of Declarant and the Association. The
following easements are reserved to Declarant and the Association, their
successors and assigns:
(a) easements as necessary in the lands constituting the Common
Elements and that portion of each Lot not occupied by a structure for the
installation and maintenance of utilities and drainage facilities (including the right
of Declarant and the Association to go upon the ground with men and equipment
to erect, maintain, inspect, repair and use electric and telephone lines, wires,
cables, conduits, sewers, water mains and other suitable equipment for the
conveyance and use of electricity, telephone equipment, gas, sewer, water or
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other public conveniences or utilities on, in or over each Lot and such other areas
as are shown on the plat of the Property or any Additional Property recorded or
to be recorded in the office of the Register of Deeds of the county where the
Planned Community is located; the right to cut drain ways, swales and ditches for
surface water whenever such action may appear to the Developer or the
Association to be necessary in order to maintain reasonable standards of health,
safety and appearance; the right to cut any trees, bushes or shrubbery; the right
to make any grading of the soil, or to take any other similar action reasonably
necessary to provide economical and safe utility installation and to maintain
reasonable standards of health, safety and appearance; and the right to locate
wells, pumping stations, and tanks within residential areas, or upon any Lot with
the permission of the owner of such Lot). No structures or plantings or other
material shall be placed or permitted to remain upon such easement areas or
other activities undertaken thereon which may damage or interfere with the
installation or maintenance of utilities or other services, or which may retard,
obstruct or reverse the flow of water or which may damage or interfere with
established slope ratios or create erosion. These easement areas (whether or
not shown on the recorded plats for the Planned Community) and improvements
within such areas shall be maintained by the respective Owner except those for
which a public authority, utility company, or the Association is responsible;
(b) easements over all private streets, if any, access easements,
and Common Elements within the Planned Community as necessary to provide
access, ingress and egress, to any Additional Property;
(c) an easement of unobstructed access over, on, upon, through
and across each Lot and the Limited Common Elements located thereon, if any,
at all reasonable times to perform any maintenance and repair to the limited
Common Elements required by this Declaration. This easement shall also run in
favor of the Association and the Association's agents, employees, successors
and assigns.
SECTION 3. Other Easements. The following easements are granted by
Declarant to others:
(a) an easement is hereby granted to all police, fire protection,
ambulance and all similar persons, companies or agencies performing
emergency services, to enter upon all Lots and Common Elements in the
performance of their duties;
(b) in case of any emergency originating in or threatening any Lot
or Common Elements, regardless of whether any Lot Owner is present at the
time of such emergency, the Association or any other person authorized by it,
shall have the right to enter any Lot for the purpose of remedying or abating the
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causes of such emergency and making any other necessary repairs not
performed by the Lot Owners, and such right of entry shall be immediate;
(c) the Association is granted an easement over each Lot for the
purposes of providing Lot maintenance when an Owner fails to provide
maintenance and upkeep in accordance with this Declaration.
SECTION 4. Nature of Easements. All easements and rights described
herein are perpetual easements appurtenant, running with the land, and shall
inure to the benefit of and be binding on the Declarant and the Association, their
successors and assigns, and any Owner, purchaser, mortgagee and other
person having an interest in the Property or any Additional Property, or any part
or portion thereof, regardless of whether or not reference is made in the
respective deeds of conveyance, or in any mortgage or trust deed or other
evidence of obligation, to the easements and rights described in this Declaration.
ARTICLE III
RIGHTS OF DEVELOPER
The Declarant shall have, and there is hereby reserved to the Declarant,
the Special Declarant Rights as herein defined and the following rights, powers
and privileges which shall be in addition to the Special Declarant Rights and
any other rights, powers and privileges reserved to the Declarant herein:
SECTION 1. The Architectural Control Committee. All duties and
responsibilities conferred upon the Architectural Control Committee by this
Declaration or the Bylaws of the Association shall be exercised and performed by
the Declarant or its designee, so long as Declarant shall own any Lot within the
property or any Additional Property.
SECTION 2. Plan of Develo ment. The right to change, alter or
redesignate the allocated planned, platted, or recorded use or designation of any
of the lands constituting the Planned Community including, but not limited to, the
right to change, alter or redesignate road, utility and drainage facilities and
easements and to change, alter or redesignate such other present and proposed
amenities, Common Elements, or facilities as may in the sole judgment and
discretion of Declarant be necessary or desirable. The Declarant hereby
expressly reserves unto itself, its successors and assigns, the right to re-plat any
one (1) or more Lots shown on the plat of any subdivision of the Property or
Additional Property in order to create one or more modified Lots; to further
subdivide tracts or Lots shown on any such subdivision plat into two or more
Lots; to recombine one or more tracts or Lots or a tract and Lots to create a
larger tract or Lot (any Lot resulting from such recombination shall be treated as
one Lot for purposes of Assessments); to eliminate from this Declaration Lots
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that are not otherwise buildable or are needed or desired by Declarant for access
or are needed or desired by Declarant for use as public or private roads or
access areas, whether serving the Planned Community or other property owned
by the Declarant or others, or which are needed for Common Elements or
amenities, and to take such steps as are reasonably necessary to make such re-
platted Lots or tracts suitable and fit as a building site or access area or roadway
or Common Elements. The Declarant need not develop, or develop in any
particular manner, any lands now owned or hereafter acquired by the Declarant,
including any lands shown on plats of the Planned Community as "Future
Development". Any such lands shall not be subject to this Declaration unless
Declarant expressly subjects them hereto by the fling of a supplemental
declaration in the Register of Deeds office of the county where the Planned
Community is located. Declarant is required by DWQ to state herein the
maximum allowed built-upon area for all lots which Declarant has planned to
develop within the Planned Community. By listing the maximum built-upon area
herein for all such lots, Declarant does not obligate itself to develop in any
particular manner or for any particular uses any lands now owned or hereinafter
acquired by Declarant which are not shown on the recorded plats referenced
herein.
SECTION 3. Amendment of Declaration by the Declarant. This
Declaration may be amended without approval of the Lot Owners, i.e. the
Members of the Association, by the Declarant, or the Board of the Association,
as the case may be, as follows:
(a) in any respect, prior to the sale of the first Lot;
(b) to the extent this Declaration applies to Additional Property.
(c) to correct any obvious error or inconsistency in drafting, typing
or reproduction;
(d) to qualify the Association or the Property and Additional
Property, or any portion thereof, for tax-exempt status;
(e) to incorporate or reflect any platting change as permitted by
Section 2 of this Article or otherwise permitted herein;
(f) to conform this Declaration to the requirements of any law or
governmental agency having legal jurisdiction over the Property or any Additional
Property or to qualify the Property or any Additional Property or any Lots and
improvements thereon for mortgage or improvement loans made, insured or
guaranteed by a governmental agency or to comply with the requirements of law
or regulations of any corporation or agency belonging to, sponsored by, or under
the substantial control of the United States Government or the State of North
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Carolina, regarding purchase or safe of such Lots and improvements, or
mortgage interests therein, as well as any other law or regulation relating to the
control of property, including, without limitation, ecological controls, construction
standards, aesthetics, and matters affecting the public health, safety and general
welfare. A letter from an official of any such corporation or agency, including,
without limitation, the Department of Veterans Affairs, U. S. Department of
Housing and Urban Development, the Federal Home Loan Mortgage
Corporation, Government National Mortgage Corporation, or the Federal National
Mortgage Association, requesting or suggesting an amendment necessary to
comply with the requirements of such corporation or agency shall be sufficient
evidence of the approval of such corporation or agency, provided that the
changes made substantially conform to such request or suggestion. The
Declarant may at any time amend this Declaration to change the maximum
allowable built-upon area as permitted by DENR. Notwithstanding anything else
herein to the contrary, only the Declarant, during the Declarant Control Period,
shall be entitled to amend this Declaration pursuant to this Section.
SECTION 4. Annexation of Additional Pro e . Declarant may annex to
and make a part of the Planned Community any other real property, whether now
owned or hereafter acquired by Declarant or others, and whether developed by
the Declarant or others (the "Additional Property"). Annexation of Additional
Property to the Planned Community shall require the assent of 67 percent of the
Class A Members who are voting in person or by proxy at a meeting called for
this purpose; provided, however, Additional Property may be annexed to the
Planned Community without the assent of the Members so long as the Additional
Property adjoins the Planned Community and is used for residential purposes,
roads, utilities, drainage facilities, amenities and other facilities related thereto.
SECTION 5. Sales Model. So long as the Declarant or its designee shall
retain ownership of any Lot, it may utilize any such Lot for offices, models or
other purposes relating to the construction, sale or rental of Lots and dwellings
including the right to place "For Sale" or "For Rent" signs on any Lots. The
Declarant may assign this limited commercial usage right to any other person or -
entities as it may choose.
ARTICLE IV.
klOMEOWNERS' ASSOCIATION
SECTION I. formation of Association. A Lot Owners' association shall
be incorporated no later than the date the first Lot in the Planned Community is
conveyed. The Association shall be a nonprofit corporation organized pursuant
to the Nonprofit Corporation Act of the State of North Carolina for the purpose of
establishing an association for the Owners of Lots to operate and maintain the
Common Elements and any Limited Common Elements in accordance with this
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Declaration, its Charter and Bylaws. The Association shall be empowered to
perform and/or exercise those powers set forth in the Act as it may be amended
from time to time, in addition to any powers and authority otherwise granted to it.
SECTION 2. Membership. Every Lot Owner shall be a Member of the
Association. Membership shall be appurtenant to and may not be separated
from Lot ownership.
SECTION 3. Voting Rights. The Association shall have two classes of
voting Membership.
Class A. Class A Members shall be all Owners, with
the exception of the Declarant, and shall be entitled to one
vote for each Lot owned. When more than one person holds
an interest in any Lot, all such persons shall be Members.
The vote for such Lot shall be exercised as they determine,
but in no event shall more than one vote be case with
respect to any Lot. Fractional voting with respect to any Lot
is prohibited.
Class B. The Declarant shall be a Class B Member
and shall be entitled to three (3) votes for each Lot owned.
The Class B Membership shall cease and be converted to
Class A Membership on the happening of any of the
following events, whichever occurs earlier:
(a) when the total vote outstanding in the Class A
Membership equals the total vote outstanding in the Class B
Membership; or
(b) on December 31, 2013; or
(c) upon the voluntary surrender of all Class B
Membership by the holder thereof.
The period during which there is Class B Membership is sometimes
referred to herein as the "Declarant Control Period". During the Declarant
Control Period, the Declarant shall have the right to designate and select the
Executive Board of the Association and the right to remove any person or
persons designated and selected by the declarant to serve on the Executive
Board, and to replace them for the remainder of the term of any person
designated and selected by the Declarant to serve on the Executive Board who
may resign, die, or be removed by the Declarant.
SECTION 4. Government Permits. After completion of construction of
any facilities required to be constructed by Declarant pursuant to permits,
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agreements and easements for the Planned Community, all duties, obligations,
rights and privileges of the Declarant under any water, sewer, stormwater and
utility agreements, easements and permits for the Planned Community with
municipal or governmental agencies or public or private utility companies, shall
be the duties, rights, obligations, privileges and the responsibility of the
Association, notwithstanding that such agreements, easements or permits have
not been assigned or the responsibilities thereunder specifically assumed by the
Association. There are additional provisions made in this Declaration concerning
stormwater facilities and the Stormwater Permit.
SECTION 5. Common Elements. The Association shall at its sole cost
and expense be responsible for the operation and maintenance of each Common
Element within the Planned Community form the date of completion of its
construction or improvement by the Developer, whether or not (i) such Common
Element has actually been deeded to the Association, or (ii) any permit issued by
a governmental agency to Declarant for the construction and operation of the
Common Element has been transferred from the Declarant to the Association or
assumed by the Association. If the Declarant is required by any government
agency to provide any operation or maintenance activities to a Common Element
for which the Association is liable to perform such operation and maintenance
pursuant to this section, then the Association agrees to reimburse the Declarant
the cost of such operation and maintenance within 30 stays after Declarant
renders a bill to the Association therefor. The Association agrees to levy a
Special Assessment within 30 days of receipt of such bill to cover the amount
thereof if it does not have other sufficient funds available. Declarant shall be
entitled to specific performance to require the Association to levy and collect
such Special Assessment.
ARTICLE V.
INSURANCEAND BONDS
SECTION 1. =Insurance. Commencing not later than the time of the first
conveyance of a Lot to a Person that is not a Declarant, it shall be the duty of the
Association to maintain in effect casualty and liability insurance as follows to the
extent it is reasonably available:
(a) Amount and Scope of Insurance. All insurance policies upon
the Common Elements (except personal property within a Townhome) shall be
secured by the Board of Directors, or its designee on behalf of the Association
which shall obtain such insurance against (1) loss or damage by fire or other
hazards normally insured against in an amount after application of any
deductibles of not less than 80 percent of the replacement cost of the insured
property at the time the insurance is purchased and at each renewal date
exclusive of land excavation, foundations and other items normally excluded from
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property policies, and (2) such other risks, including public liability insurance, as
from time to time shall be customarily required by private institutional mortgage
investors for projects similar in construction, location and use as the Planned
Community and the improvements thereon for at least $1,000,000.00 for bodily
injury, including deaths of persons and property damage arising out of a single
occurrence. Coverage under this policy shall include, without limitation, legal
liability of the insureds for property damage, bodily injuries, and deaths of
persons in connection with the operation, or maintenance or use of the Common
Elements and legal liability arising out of lawsuits relating to employment
contracts of the Association. If the insurance described in subsection (a) of this
section is not reasonably available, the Association promptly shall cause notice
of that fact to be hand delivered or sent prepaid by United States mail to all Lot
Owners;
(b) Insurance Provisions. The Board of Directors snail make
diligent efforts to insure that said insurance policies provide for the following:
(1) a waiver of subrogation by the
insurer as to any claims against the
Association, any officer, director, agent or
employee of the Association, the Lot Owners
and their employees, agents, tenants and
invitees;
(2) a waiver by the insurer of its right to
repair and reconstruct instead of paying cash;
(3) coverage may not be cancelled or
substantially modified (including cancellation
for nonpayment of premium) without at least
thirty days prior written notice to the named
insured and all mortgagees;
(4) coverage will not be prejudiced by
act or neglect of the Lot Owners when said act
or neglect is not within the control of the
Association or by any failure of the Association
to comply with any warranty or condition
regarding any portion of the Planned
Community over which the Association has no
control.
(5) the master policy on the Planned
Community cannot be cancelled, invalidated or
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suspended on account of the conduct of any
one or more individual Lot Owners;
(6) the master policy on the Planned
Community cannot be cancelled, invalidated or
suspended on account of the conduct of any
officer or employee of the Board of Directors
without prior demand in writing that the Board
of Directors cure the defect and the allowance
of a reasonable time thereafter within which the
defect may be cured;
(7) each Lot Owner is an insured person
under the policy to the extent of the Lot
Owner's insurable interest;
(8) if at the time of a loss under the
policy, there is other insurance in the name of
a Lot Owner covering the same risk covered by
the policy, the Association's policy provides
primary insurance.
(c) Premiums. All premiums on such insurance policies and any
deductibles payable by the Association upon loss shall be a common expense;
(d) Proceeds. All insurance policies purchased pursuant to these
provisions shall provide that all proceeds thereof shall be payable to the Board as
insurance trustee or to such attorney-at-law or institution with trust powers as
may be approved by the Board of Directors who shall hold any such insurance
proceeds in trust for Lot Owners and lien holders as their interest may appear;
(e) Policies. All insurance policies purchased by the Board of
Directors shall be with a company or companies permitted to do business in the
State of North Carolina and holding a rating of "A" or better by the current issue
of Best's Insurance Reports. All insurance policies shall be written for the benefit
of the Board of Directors and the Lot Owners and their mortgagees as their
respective interests may appear, and shall provide that all proceeds thereof shall
be payable to the Board of Directors and duplicates of said policies and
endorsements and all renewals thereof, or certificates thereof, together with proof
of payment of premiums, shall be delivered to the Owners at least ten (10) days
prior to the expiration date with respect to the then current policies. Duplicates
shall also be obtained and issued by the Association to each mortgagee, if any
upon request of such mortgagee;
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(f) Individual Policies. If the Association shall determine that it
would be more economically feasible in lieu of the Association maintaining a
master policy for the entire Planned Community, for the Lot Owners to purchase
insurance policies covering each Lot and Lot Owner individually, then upon the
assent of 67 percent of the Members (which votes may be cast in person or by
proxy) who are eligible to vote at a meeting duly called for such purpose, the
insurance coverage for the entire Planned Community, may be turned over to the
Members to purchase individual policies under such terms and conditions as the
Association may prescribe. If the responsibility for maintaining the insurance
coverage on the Planned Community is turned over to the individual Lot Owners
under the provisions of this paragraph, then the Association shall be named as
additional insured on each policy, each Lot shall be insured for its full
replacement value and the provisions of this Section shall be mollified
accordingly;
(g) Distribution of Insurance Proceeds. Subject to the provisions of
Section 47F-3-113(g) of the Act the proceeds o insurance policies shall be
distributed to or for the benefit of the beneficial owners in the following manner:
(1) all reasonable expenses of the
insurance trustee shall be first paid or provision
may therefor;
(2) subject to the provisions of Section
4717-2-118 of the act, the remaining proceeds
shall be used to defray the cost of repairs for
the damage or reconstruction for which the
proceeds are paid. Any proceeds remaining
after defraying such cost shall be distributed to
the beneficial owners, including lienholders of
record, or retained by the Association for such
common expenses or purposes as the Board
shall determine,
SECTION 2. Fidelii Bond. The Association may maintain blanket fidelity
bonds for all officers, directors, employees and all other persons handling or
responsible for funds of the Association, as follows (provided, however, that if the
Association shall delegate some or all of the responsibility for the handling of its
funds to a management agent, such fidelity bonds shall be maintained by such
management agent for its officers, employees and agents handling or
responsible for funds of or administered on behalf of the Association):
(a) The total amount of fidelity bond coverage required shall be
based upon best business judgment and shall not be less than the estimated
maximum of funds, including reserve funds, in the custody of the Association or
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the management agent, as the case may be, at any given time during the term of
each bond. However, in no event may the aggregate amount of such bonds be
less than a sum equal to three months aggregate assessments on all units plus
reserve funds;
requirements:
(b) Fidelity bonds required herein must meet the following
(1) fidelity bonds shall name the
Association as an obligee;
(2) the bonds shall contain waivers by
the issuers of the bonds of all defenses upon
the exclusion of persons serving without
compensation from the definition of
"employees", or similar terms or expressions;
(3) the premiums on all bonds required
herein for the Association (except for premiums
on fidelity bonds maintained by a management
agent for its officers, employees and agents)
shall be paid by the Association as a common
expense;
(4) the bonds shall provide that they
may not be canceled or substantially modified
(including cancellation for nonpayment of
premium) without at least ten (10) days prior
written notice to the Association, to any
insurance trustee and each institutional holder
of a first lien on any Lot.
ARTICLE VI.
COVENANTS FOR ASSESSMENTS
SECTION 1 Creation=of the:Lien and[ Personal Obligation of
Assessments. Each Lot Owner covenants and agrees to pay to the Association
the following assessments (collectively the "Assessments"):
(a) Annual Assessments;
(b) Special Assessments;
(c) Insurance Assessments;
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(d) Ad Valorem Tax Assessments; and
(e) Working Capital Assessments.
The Assessments, together with interest, costs and reasonable attorney's
fees, shall be a charge on the land and shall be a continuing lien upon the
respective Lot against which the Assessments are made. Each such
Assessment, together with interest, costs and reasonable attorney's fees, shall
also be the personal obligation of the person who was the Owner of such Lot at
the time when the Assessment fell due. The personal obligation for delinquent
Assessments shall not pass to the Owner's successors in title unless expressly
assumed by them.
SECTION 2. Purpose off Annual Assessments. The Annual Assessments
levied by the Association shall be used exclusively to promote the recreation,
health, safety and welfare of the Owners and residents of the Property and
Additional Property and for the maintenance, repair, improvement and
replacement of the Common Elements and any Limited Common Elements. The
funds arising from said assessments or charges, may be used for any or all of
the following purposes: Operations, maintenance and improvement of the
Common Elements, and any Limited Common Elements, including maintenance
of and payment of utilities; enforcing this Declaration and the Master Declaration;
paying taxes, insurance premiums, legal and accounting fees and governmental
charges; establishing working capital; paying dues and assessments to any
organization, Master Association, or other association of which the Association is
a member, and in addition, doing any other things necessary or desirable in the
opinion of the Executive Board to keep the Common Elements and Limited
Common Elements in good operating order and repair.
SECTION 3. Annual Assessments. The Executive Board shall adopt a
proposed annual budget at least 90 days before the beginning of each fiscal
year. Within 30 days after adoption of the proposed budget for the Planned
Community, the Executive Board shaii provide to all of the Lot Owners a
summary of the budget and notice of a meeting to consider its ratification,
including a statement that the budget may be ratified without a quorum. The
budget is ratified unless at the meeting a majority of all of the Lot Owners in the
Association rejects the budget. In the event the proposed budget is rejected, the
periodic budget last ratified by the Lot Owners shall be continued until such time
as the Lot Owners ratify a subsequent budget proposed by the Executive Board.
The Annual Assessment for each Lot shall be established based on the annual
budget thus adopted; provided, however, that the first Annual Assessment shall
be set by the Declarant prior to the conveyance of the first Lot to an Owner. The
due date for payment shall be established by the Executive Board. The
Executive Board shall have the authority to require the assessments to be paid in
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periodic installments. The Association shall, upon demand, and for a reasonable
charge furnish a certificate signed by an officer of the Association setting forth
whether the assessments on a specified Lot have been paid.
SECTION 4. Special Assessments. In addition to the Annual
Assessments authorized above, the Association may levy, in any assessment
year, a Special Assessment applicable to the year only for the following
purposes:
A. To defray, in whole or in part, the cost of any construction,
reconstruction, repair or replacement of a capital improvement upon the
Common Elements and any Limited Common Elements, including fixtures and
personal property related thereto, provided that any such Special Assessment
shall have the assent of two-thirds (2/3) of the Members of each class who are
voting in person or by proxy at a meeting duly called for this purpose. Written
notice of any meeting of Owners called for the purpose of approving such Special
Assessment shall be sent to all Members not less than ten (10) days nor more
than sixty (60) days in advance of the meeting.
B. Without a vote of the Members, to provide funds to reimburse the
Declarant as provided for in Article IV, Section 5, hereof.
SECTION 5. Insurance Assessments. All premiums on insurance policies
purchased by the Board of Directors or its designee and any deductibles payable
by the Association upon loss shall be a Common Expense, and the Association
may in any assessment year levy against the Owners equally an "Insurance
Assessment", in addition to the Annual Assessments, which shall be in an
amount sufficient to pay the annual cost of all such deductibles and insurance
premiums not included as a component of the Annual Assessment.
SECTION 6. Ad Valorem Tax Assessments. All ad valorem taxes levied
against the Common Elements, if any, shall be a Common Expense, and the
Association may in any assessment year levy against the Owners equally an "Ad
Valorem Tax Assessment", in addition to the Annual Assessments, which shall
be in an amount sufficient to pay such ad valorem taxes in such year not
included as a component of the Annual Assessment.
SECTION 7. Working Capital Assessments. At the time title to a Lot is
conveyed to an Owner by Declarant, the Owner shall pay a sum equal to one
quarters of the Annual Assessment to the Association as working capital to be
used for operating and capital expenses of the Association. Amounts paid into
the working capital fund are not to be considered as advance payment of the
Annual or any other assessments.
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SECTION 8. Rate of Assessment. The Association may differentiate in
the amount of Assessments charged when a reasonable basis for distinction
exists, such as between vacant Lots of record and Lots of record with completed
dwellings for which certificates of occupancy have been issued by the
appropriate governmental authority, or when any other substantial difference as a
ground of distinction exists between Lots. However, Assessments must be fixed
at a uniform rate for all Lots similarly situated.
SECTION 9. Commencement of Assessments. Assessments for each
Lot shall commence upon the date of acceptance by an Owner of a deed from
Declarant.
SECTION 10. Effect Of Non a ment of Assessments And Remedies Of
The Association. Any Assessment or installment thereof not paid within thirty
(30) days after the due date shall bear interest from the due date at the highest
rate allowable by law. The Association may bring an action at law against the
Owner personally obligated to pay the same, or foreclose the lien against the
Owner's Lot. No Owner may waive or otherwise escape liability for the
Assessments provided for herein by non-use of the Common Elements or
abandonment of his Lot. All unpaid installment payments of Assessments shall
become immediately due and payable if an Owner fails to pay any installment
within the time permitted. The Association may also establish and collect late
fees for delinquent installments.
SECTION 11 Lien fovAssessments. The Association may file a lied
against a Lot when any Assessment levied against said Lot remains unpaid for a
period of 30 days or longer.
(a) The lien shall constitute a lien against the Lot when and after
the claim of lien is filed of record in the office of the Clerk of Superior Court of the
county in which the Lot is located- The Association may foreclose the claim of
lien in like manner as a mortgage on real estate under power of sale under
Article 2A of Chapter 45 of the General Statutes. Fees, charges, late charges,
fines, interest, and other charges imposed pursuant to Sections 4717-3-102, 47F-
3-107, 47F-3-107A and 47F-3-115 of the Act are enforceable as Assessments.
(b) The Association may not foreclose an assessment lien under
Power of Sale if the debt secured by the lien consist solely of fines imposed by
the Association, interest on unpaid fines, or Attorney's fees incurred by the
Association. The Association, however, may enforce the lien by judicial
foreclosure.
(c) The lien under this section shall be prior to all liens and
encumbrances on a Lot except (i) liens and encumbrances (specifically including,
but not limited to, a mortgage or deed of trust on the Lot) recorded before the
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docketing of the claim of lien in the office of the Clerk of Superior Court, and (ii)
liens for real estate taxes and other governmental assessments and charges
against the Lot.
(d) The lien for unpaid assessments is extinguished unless
proceedings to enforce the lien are instituted within three years after the
docketing of the claim of lien in the office of the Clerk of Superior Court.
(e) Any judgment, decree, or order in any action brought under this
section shall include costs and reasonable attorneys' fees for the prevailing party.
(f) Where the holder of a first mortgage or deed of trust of record, or
other purchaser of a Lot obtains title to the Lot as a result of foreclosure of a first
mortgage or first deed of trust, such purchaser and its heirs, successors and
assigns shall not be liable for the Assessments against the Lot which became
due prior to the acquisition of title to the Lot by such purchaser. The unpaid
Assessments shall be deemed to be Common Expenses collectible from all of
the Lot Owners including such purchaser, its heirs, successors and assigns.
(g) A claim of lien shall set forth the name and address of the
Association, the name of the record Owner of the Lot at the time the claim of lien
is filed, a description of the Lot, and the amount of the lien claimed.
ARTICLE VII.
USE „ RESTRICTIONS, ARCHITECTURAL CONTROL
AND MAINTENANCE
SECTION 1. Approval of Plans for Building and Site Improvements. No
dwelling, wall or other structure shall be commenced, erected, or maintained
upon any Lot, nor shall any exterior addition to or change in or alteration therein
(including painting or repainting of exterior surfaces) be made until the plans and
specifications showing the nature, kind, shape, heights, materials, colors and
location of the same shall have been submitted to and approved in writing as to
harmony of external design and location in relation to surrounding structures and
topography by the Declarant, or its designee, or, after the sale of all Lots by
Declarant, by the Board of Directors of the Association, or by an Architectural
Control Committee composed of three (3) or more representatives appointed by
the Board. In the event the Declarant, or its designee, or, if applicable, the
Board, or the Architectural Control Committee, fails to approve or disapprove
such design and location within thirty (30) days after said plans and
specifications have been submitted to it, approval will not be required and this
Article will be deemed to have been fully complied with- Refusal or approval of
any such plans, location or specification may be based upon any ground,
including purely aesthetic and environmental considerations, that in the sole and
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uncontrolled discretion of the Declarant, the Board, or Architectural Control
Committee shall be deemed sufficient. One copy of all plans and related data
shall be furnished to the Declarant, the Board, or Architectural Control
Committee, as the case may be, for its records. Neither the Declarant, the
Board, nor the Architectural Control Committee shall be responsible for any
structural or other defects in plans and specifications submitted to it or any
structure erected according to such plans and specifications.
SECTION 2. Minimum Standards for Site Improvements.
(a) Each dwelling shall have a minimum of 1,100 square feet of
enclosed, heated dwelling area. The term "enclosed, heated dwelling area" as
used in the minimum requirements shall be the total enclosed area within a
dwelling which is heated by a common heating system; provided, however, that
such term does not include garages, terraces, decks, open/screened porches,
and like areas.
(b) The site and location of any house or dwelling or other structure
upon any lot shall be strictly controlled by and must be approved absolutely by
the Declarant, the Board, or the Architectural Control Committee, as the case
may tae; provided, however, that no structure shall be constructed closer to an
adjoining property line than is permitted by applicable governmental regulations.
(c) The exterior of all dwellings and other structures must be completed
within twelve (12) months after the construction of same shall have commenced, except
where such completion is impossible or would result in great hardship to the Owner or
builder, due to strikes, fires, national emergency or natural calamities.
(d) All service utilities, fuel tanks, yard maintenance equipment when not
in use, garbage cans, wood piles, miscellaneous storage and out door cookers are to be
enclosed within a building, wall or porch screen of a type approved by Declarant, the
Board, or the ARB 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. All mail and newspaper boxes shall be uniform in design. Design for mail
and newspaper boxes shall be furnished by Declarant, for conformity. All mail and
newspaper boxes shall remain in the designated location and shall be maintained by the
Lot Owner to the standards set by the Association at the Lot Owner's expense. Fences
shall not be permitted on any Lot. Clothes lines are not permitted on any Lot.
(e) Off street parking shall be limited to two (2) passenger automobiles
parked in designated spaces, not to encroach into any drive aisles or backing stubs.
Each lot owner understands and agrees that any automobile or vehicle which violates
the aforementioned parking covenant may be removed at the lot owner's expense, and
said lot owner will hold the Association harmless for damages or costs incurred in the
vehicle's removal.
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(f) All light bulbs or other lights installed in any fixture located on the
exterior of any building or any Lot for the purpose of illumination shall be clear, white or
non-frost lights or bulbs.
(g) Each lot owner will install at his expense, window and door blinds on
that building wall facing drive aisles within thirty (30) days of occupancy. Said blinds are
to be white in color.
SECTION 3. Use Restrictions.
(a) Land Use And Building Type. No Lot shall be used for any purpose
except for residential purposes, subject, however, to the rights of the Declarant
contained herein. All numbered Lots are restricted for construction of one single family
Townhome dwelling.
(b) Nuisances. No noxious or offensive activity shall be carried on upon
any Lot, nor shall anything be done thereon which may be or may become an
annoyance or nuisance to the neighborhood. There shall not be maintained any plants
or animals, nor device or thing of any sort whose normal activities or existence are in
any way noxious, dangerous, unsightly, unpleasant or other nature as may diminish or
destroy the enjoyment of other Lots by the Owners thereof. It shall be the responsibility
of each Owner to prevent the development of any unclean, unsightly or unkept condition
of buildings, rear porches, rear patios, or grounds on the Owner's Lot which would tend
to decrease the beauty of the neighborhood as a whole or the specific area.
(c) Temporary Structures. No structure of a temporary character, trailer,
basement, tent, shack, garage, barn or other outbuilding shall be used on any Lot any
time as a residence either temporarily or permanently without the written consent of the
Association or its designee; provided, however, that this shall not prevent the Declarant,
its designees or assigns from maintaining a construction trailer or office, on any part of
the Planned Community until the construction of dwellings on all Lots and Common
Elements improvements are completed.
(d) Vehicles/Boats. No boat, motor boat, personal water craft, camper,
trailer, motor or mobile homes, tractor/trailer, construction equipment or similar type
vehicle, shall be permitted to remain on any Lot, parking stall, or street at any time,
without the written consent of the Association or its designee. No inoperable vehicle or
vehicle without current registration and insurance, will be permitted on any Lot, street or
Common Elements. The Association shall have the right to have all such vehicles
towed away at the owner's expense. No repairs to any vehicle may be made on streets,
parking stalls, or other common areas.
(e) Animals. No animals, livestock or poultry of any kind shall he kept or
maintained on any Lot or in any dwelling except that domesticated dogs, domesticated
20
cats or other household pets may be kept or maintained provided that they are not kept
or maintained for commercial purposes and provided further that they are not allowed to
run free, are at all times kept properly leashed or under the control of their owner and do
not become a nuisance to the neighborhood. Porches and patios shall not be used to
confine pets on a permanent basis. They shalt be maintained within the residence.
(f) Statuary. TV Satellite Dishes and Outside Antennas. No yard statuary,
TV satellite signal receiving dishes, or outside radio or television antennas shall be
erected on any Lot or dwelling unit unless and until permission for the same has been
granted by the Board of Directors of the Association or its Architectural Control
Committee.
(g) Construction in Common Elements. No person shall undertake, cause,
or allow any alteration or construction in or upon any portion of the Common Elements
except at the direction or with the express written consent of the Association.
(h) Signs. No signs shall be permitted on any Lot or in the Common
Elements other than one (1) 10" X 17" sign displayed in the lower portion of the front
kitchen window indicating that a Townhome is for rent or for sale.
(i) Subdividing. Subject to any rights reserved to the Declarant herein, no
Lot shall be subdivided, or its boundary lines changed except with the prior written
consent of the Declarant during the period of Declarant control of the Association and
thereafter by the Board of Directors of the Association.
(j) Flags. No flags may be displayed in the Common Areas. The
Association may prohibit or regulate the display of flags on lots with the exception of the
flag of the United States of America displayed in accordance with the custom set forth in
4 U.S.C. 5-10 as amended.
(k) Political Posters. No Political Posters may be displayed in the
Common Areas.
SECTION 4. Maintenance. Each Lot Owner shall keep his Lot free from weeds,
underbrush or refuse piles, or unsightly growth or objects and shall be responsible for
maintaining and watering those shrubs and bushes and sod located with their Limited
Common Area to insure their survival during times of extreme heat and drought. In the
event that any maintenance activities are necessitated to any Common or Limited
Common Element by the willful act or active or passive negligence of any Owner, his
family, guests, invitees or tenants, and the cost of such maintenance, repair or other
activity is not fully covered by insurance, then, at the sole discretion of the Board of
Directors of the Association, the cost of the same shall be the personal obligation of the
Owner and if not paid to the Association upon demand, may be added to the annual
assessment levied against said Owner's Lot,
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ARTICLE VIII
PARTY WALLS
SECTION 1. General Rules of Law to Apply. Each wall which is built as a part of
the original construction of the Townhomes and placed on the dividing line between
Lots shall constitute a party wall, and, to the extent not inconsistent with the provisions
of this Article, the general rules of law in North Carolina regarding party walls and of
liability for property damage due to negligence or willful acts or omissions shall apply
thereto.
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 b Eire or Other Casualty, If a party wall is destroyed
or damaged by fire or other casualty, any Owner who has used 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 omission.
SECTION 4. Weatherproofing. Notwithstanding any other provision of this
Article, an Owner who by his negligent or willful act caused the party wall to be exposed
to the elements shall bear the whole cost of furnishing the necessary protection against
such element.
SECTION 5. Right to Contribute Runs with Land_ The right of any Owner to
contribute from any other Owner under this Article shall be appurtenant to the land and
shall pass to such owner's successors in title.
SECTION 6. Arbitration. In the event of any dispute arising concerning a party
wall, or under the provisions of this arbitrators shall choose one additional arbitrator,
and the decisions shall be by a majority of all the arbitrators.
ARTICLE IX
LOTS SUBJECT TO DECLARATIONIENFORCEENT
SECTION 1. Lots Sub"ect to Declaration. The covenants and restrictions
contained in this Declaration are for the purpose of protecting the value and desirability
of the Planned Community and the Lots contained in it. All present and future Owners,
tenants and occupants of Lots and their guests or invitees, shall be subject to, and shall
comply with the provisions of the Declaration, and as the Declaration may be amended
22
from time to time. The acceptance of a deed of conveyance or the entering into of a
lease or the entering into occupancy of any Lot shall constitute an agreement that the
provisions of the Declaration are accepted and ratified by such Owner, tenant or
occupant. The covenants and restrictions of this Declaration shall run with and bind the
land and shall bind any person having at any time any interest or estate in any Lot, their
heirs, successors and assigns, as though such provisions were made a part of each
and every deed of conveyance or lease, for a term of twenty (20) 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 by the Lot Owners.
SECTION 2. Enforcement and Remedies. The covenants and restrictions of this
Declaration shall inure to the benefit of and be enforceable (by proceedings at law or in
equity) by the Association, or the Owner of any Lot, their respective legal
representatives, heirs, successors and assigns. The Executive Board shall be entitled
to enforce its Articles of Incorporation, Bylaws and Rules and Regulations. In addition
to the remedies otherwise provided for herein concerning the collection of Assessments,
the following remedies shall be available:
A. Association to Remedy Violation. In the event an Owner (or other occupant
of a Lot) is in violation of or fails to perform any maintenance or other activities required
by this Declaration, the Association's Bylaws, Charter or Rules and Regulations, the
Executive Board or its designee, after 30-days notice, unless otherwise stated herein,
may enter upon the Lot and remedy the violation or perform the required maintenance
or other activities, all at the expense of the Owner, and such entry shall not be deemed
a trespass. The full amount of the cost of remedying the violation or performing such
maintenance or other activities and shall be chargeable to the Lot, including collection
costs and reasonable attorneys' fees. Such amounts shall be due and payable within
30 days after Owner is billed. If not paid within said 30 day period, the amount thereof
may immediately be added to and become a part of the Annual Assessment levied
against said Owner's Lot. In the event that any maintenance activities are necessitated
to any Common or Limited Common Elements by the willful act or active or passive
negligence of any Owner, his family, guests, invitees or tenants, and the cost of such
maintenance, repair or other activity is not fully covered by insurance, then, at the sole
discretion of the Board of Directors of the Association, the cost of the same shall be the
personal obligation of the Owner and if not paid to the Association upon demand, may
immediately be added to and become a part of the Annual Assessment levied against
said Owner's Lot. Notwithstanding the foregoing, the Association shall not have a lien
for the cost of any maintenance and repairs mentioned in this section if the Association
is obligated to make such repairs or conduct such maintenance by virtue of yards or
structures being Limited Common Elements.
B. Fines. The Association may in accordance with the procedures set forth in
the Act establish a schedule of and collect fines for the violation of this Declaration or of
the Association's Articles of Incorporation, Bylaws or Rules and Regulations. If an
Owner does not pay the fine when due, the fine together with attorney's fees, interest
23
and court costs shall immediately become due and owing to the Association and the
Association may file a lien against the Owner's lot if the fine levied against the lot
remaining unpaid for a period of 30 days or longer but the Association may enforce said
lien by a judicial foreclosure.
C. Suspension of Services and Priyilecg. The Association may in accordance
with the procedures set forth in the Act suspend all services and privileges provided by
the Association to an Owner (other than rights of access to Lots) for any period during
which any Assessments against the Owner's lot remain unpaid for at least 30 days or
for any period that the Owner or the Owner's Lot is otherwise in violation of this
Declaration or the Association's Charter, Bylaws, or Rules and Regulations.
SECTION 3. Miscellaneous. Failure by the Association or by 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. The remedies provided herein are cumulative
and are in addition to any other remedies provided by law.
ARTICLE X
STORMWATER PERMIT/FACILITES
SECTION 1. Stormwater Permit. The Association and each of its Members
agree that at anytime after (i) all work required under the Stormwater Permit has been
completed (other than operation and maintenance activities), and (ii) the Developer is
not prohibited under DENR regulations from transferring the Stormwater Permit for the
Planned Community to the Association, the Association's officers without any vote or
approval of Lot Owners, and within 10 days after being requested to do so, will sign all
documents required by DENR for the Stormwater Permit to be transferred to the
Association and will accept a deed conveying such facilities to the Association (if not
already deeded); provided, however, that at the time the Developer requests that the
Association accept transfer of the Stormwater Permit, the Developer has delivered to
the Association a certificate from an engineer licensed in the State of North Carolina,
dated no more than 90 days before the date of the request, that all stormwater retention
ponds, swales and related facilities are constructed in accordance with the plans and
specifications therefore. If the Association fails to sign the documents required by this
paragraph or to accept a deed conveying such facilities, the Developer shall be entitled
to specific performance in the courts of North Carolina requiring that the appropriate
Association officers sign all documents necessary for the Stormwater Permit to be
transferred to the Association and accept a deed conveying such facilities to the
Association. Failure of the officers to sign as provided herein shall not relieve the
Association of its obligations to operate and maintain the stormwater facilities covered
by the Stormwater Permit.
24
SECTION 2. Stormwater Facilities O eration & -Maintenance. Any stormwater
retention ponds and related facilities for the Planned Community which have or are to
be constructed by or on behalf of Declarant constitute Common Elements and, subject
only to the provisions of Section 3 of this Article, the Association, and its Members at
their sole cost and expense, are responsible for the operation and maintenance of such
facilities. Said facilities constitute Common Elements and, subject only to the provisions
of Section 3 of this Article, the Association, at its sole cost and expense, is responsible
for the operation and maintenance of such facilities, including routine debris removal,
erosion control and stabilizing vegetation, routine inspections, and record keeping. Such
operation and maintenance shall include, but not be limited to, compliance with all of the
terms and obtaining any renewals of the Stormwater Permit. Except as provided in
Section 3 of this Article VII, the Association shall indemnify and hold harmless the
Developer form any obligations and costs under the Stormwater Permit for operation
and maintenance of the stormwater retention ponds and related facilities.
SECTION 3. Damage-to _Storm Water Facilities. The Declarant shall at its sole
cost and expense be responsible for repairing any damage to storm water facilities
caused by the Developer's development activities. The Developer shall not be
responsible for damages to stormwater retention ponds and related facilities caused by
any other cause whatsoever, including but not limited to activities of the Lot Owners and
Association arising out of construction of residences or other activities by Owners, their
agents and contractors, upon their Lots, acts of God, and the negligence of others. Lot
Owners shall be responsible for damages to such stormwater facilities caused by
construction of buildings or other activities upon the Owner's Lot. Each Owner, shall
within 30 days after receipt of notice of damage to stormwater facilities, repair the
damage at the Owner's sole cost and expense and return them to the state required by
the storm water plans and specifications for the Planned Community. If the Lot Owner
fails to do so within said 30-day period, the Association shall perform the work and the
cost of the work shall be added to the Annual Assessment due from the Lot Owner.
SECTION 4. Enforcement Of Storm Water Runoff Regulations. No Lot, shall be
covered by impervious structures, including asphalt, gravel, concrete, brick, stone, slate
or similar material, in excess of 1,000 square feet per lot. The Total impervious surface
area for drainage areas associated with EXTON PARK TOWNHOMES shall be limited
to 221,010 sq, feet.
Alteration of the drainage as shown on the plans and specifications submitted by
the Declarant to obtain the Stormwater Permit is prohibited without the consent of DWO
and the Declarant. Roadside or lot line swales, ditches and other vegetative
conveyances may not be filled, piped or altered except as necessary to provide a
minimum driveway crossing. For curb and gutter projects, no one may pipe, fill in, or
alter any Lot line swale used to meet Stormwater Permit requirements.
25
The following covenants are intended to ensure ongoing compliance with state
stormwater management permit number SW8070434 as issued by the Division of Water
Quality. These covenants may not be changed or deleted without the consent of the
State.
Built-upon area in excess of the permitted amount requires a state stormwater
management permit modification prior to construction.
All permitted runoff from outparcels or future development shall be directed into
the permitted stormwater control system. These connections to the stormwater control
system shall be performed in a manner that maintains the integrity and performance of
the system as permitted.
These covenants run with the land and are intended to insure continued
compliance with the Stormwater Permit. Therefore, the covenants contained in this
section may not be changed or deleted without the consent of DWQ and the State of
North Carolina is specifically made a beneficiary of these covenants. The provisions of
the Stormwater Permit are incorporated herein by reference and each Owner is required
to refrain from taking any action which will be in violation of the Stormwater Permit.
Lots within CAMA's Area of Environmental Concern may have the permitted
maximum built-upon area reduced due to CAMA jurisdiction over such areas.
ARTICLE XI
GENERAL PROVISIONS
CONSERVATION
SECTION 1. Identification. The areas shown on the plat of Exton Park
Townhomes, Phase i, and identified as "Conservation Areas" shall be maintained in
perpetuity in their natural condition.
SECTION 2. Prohibited Activities. No person or entity shall perform any of the
following activities in the "Conservation Areas" :
a. fill, grade, excavate or perform any other land disturbing activities
b. cut, mow, burn, remove or harm any vegetation,
c. construct or place any roads, trails, walkways, buildings, mobile homes,
signs, utility poles or towers, or any other permanent or temporary
d. drain or otherwise disrupt or alter the hydrology or drainage ways of the
conservation area
e. dump or store soil, trash, or other waste
f. graze or water animals, or use for any agricultural or horticultural purpose
26
SECTION 3. Enforcement by USA. This covenant is intended to ensure
continued compliance with the mitigation condition of a Clean Water Act authorization
issued by the United States of America, US Army Corps of Engineers, Wilmington
District, Action ID #SAW-2407-00952-065, and therefore may be enforced by the United
States of America. This covenant is to run with the land, and shall be binding on the
Owner, and all parties claiming under it. This covenant cannot be amended without the
express written consent of the U.S. Army Corps of Engineer, Wilmington District.
SECTION 4. Rights of Institutional Note Holders. Any institutional holder of a
first lien on a Lot will, upon request, be entitled to (a) inspect the books and records of
the Association during normal business hours, (b) receive an annual audited financial
statement of the Association within ninety (90) days following the end of its fiscal year,
(c) receive written notice of all meetings of the Association and right to designate a
representative to attend all such meetings, (d) receive written notice of any
condemnation or casualty loss that affects either a material portion of the Planned
Community or the Property securing its loan, (e) receive written notice of any sixty-day
(60) delinquency in the payment of assessments or charges owed by any Owner of any
property which is security for the loan, (f) receive written notice of a lapse, cancellation,
or material modification of any insurance policy or fidelity bond maintained by the
Association, (g) receive written notice of any proposed action that requires the content
of a specified percentage of mortgage holders, and (h) be furnished with a copy of any
master insurance policy.
SECTION 5. Utility Service. Declarant reserves the right to subject the Property
to contracts for the installation of utilities, cable TV and street lighting, which may
require an initial payment and/or a continuing monthly payment by the Owner of each
Lot. Each Lot Owner will be required to pay for any water connections, sewer
connections, impact fees or any other charges imposed by any entity furnishing water,
sewer or other utility service to the Lots. In the alternative, the Developer may collect
such connection, impact and other fees, charges directly from the Lot Owners. All Lot
Owners shall be required, for household purposes, to use water and sewer supplied by
the companiestgovernmental units servicing the Planned Community. Separate water
systems for outside irrigation and other outdoor uses shall not be permitted without the
consent of the Declarant or the Association.
SECTION 6. Termination. Except in the case of a taking of all Lots by eminent
domain, this Planned Community may be terminated only by agreement of Lot Owners
of Lots to which eighty percent (80%) of the votes in the Association are allocated acting
in strict accordance with the requirements of Section 47F-2-118 of the Act.
SECTION 7. Seyerabiiity. Invalidation of any one of these covenants or
restrictions by judgment or court order shall in no way affect any other provisions which
shall remain in full force and effect.
27
SECTION 8. Amendment of Declaration. Except in cases of amendments that
may be executed by the Declarant under this Declaration or by certain Lot Owners
under Section 47E-2-118(b) of the Act, this Declaration may be amended by affirmative
vote or written agreement signed by Owners of Lots to which at least sixty-seven
percent (67%) of the votes in the Association are allocated, or by the Declarant if
necessary for the exercise of any Special Declarant Right.
SECTION 9. FHA/VA Approval. So long as there is Class B membership,
annexation of Additional Properties, dedication of Common Elements and amendments
to this Declaration must be approved by the Federal Housing Administration and/or time
Department of Veterans Affairs, as the case may be, if either of those agencies has
approved time making, insuring or guaranteeing of mortgage loans within the Planned
Community. Declarant makes no representation that the Development conforms with all
FHA and VA standards and specifications.
SECTION 10. North Carolina Planned Community Act. It is the intent of the
Declarant to comply with the requirement imposed on the Planned Community by the
Act and to the extent any of the terms of this Declaration violate the Act, the terms of the
Act shall control.
(Remainder Of Page Intentionally Left Blank]
28
IN WITNESS WHEREOF, the party hereto, has caused this Declaration to be
executed in their corporate name and the corporate seal affixed by its duly authorized
officer as of the day and year first above written.
LLC
By:
III, Manager
STATE OF NORTH CAROLINA
COUNTY OF NEW HANOVER
1, F W;f f S , a NotaryPublic, certify that the following person(s) personally
appeared before me this day, and
X 1 have personal knowledge of the identity of the principal(s)
❑ 1 have seen satisfactory evidence of the principal's identity, by a current state or federal
identification with the principal's photograph in the form of a
❑ A credible witness has sworn to the identity of the principal(s);
On behalf of and as the act of the following entity: EXTON PARK, LLC.
Date: 6J - 2 2 --Q
otary Public
print name)
j (official PUbk
IftW H Co.. NC
My commission expires: _Z--7 T 20 / /
29
each acknowledging to me that he or she voluntarily signed the foregoing document for the purpose stated
therein and in the capacity indicated:
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