Book9535 - Page 58 Page 1 of 48 For Registration Sharon A. Davis Register of Deeds Durham County, NC Electronically Recorded 2021 Nov 19 12:59 PM Book: 9535 Page: 58 NC Rev Stamp: $ 0.00 Fee: $ 158.00 Instrument Number: 2021059356 DECL COVENANTS, CONDITIONS, RESTRICTIONS AND EASEMENTS 55 AT THE PARK THIS DOCUMENT REGULATES OR PROHIBITS THE DISPLAY OF THE FLAG OF THE UNITED STATES OF AMERICA OR STATE OF NORTH CAROLINA. THIS DOCUMENT REGULATES OR PROHIBITS THE DISPLAY OF POLITICAL SIGNS.
Prepared by and Return to: Pulte Home Company, LLC 1225 Crescent Green Drive, Suite 110 Cary, NC 27518 Submitted electronically by Hervey & Hervey, P.A. in compliance with North Carolina statutes governing recordable documents and the terms of the submitter agreement with the Durham County Register of Deeds.
Book9535 - Page 59 Page 2 of 48 DECLARATION OF COVENANTS, CONDITIONS, RESTRICTIONS AND EASEMENTS FOR 55 AT THE PARK TABLE OF CONTENTS Number Description ARTICLE I.
DEFINITIONS.
Page 1 ARTICLE II.
PROPERTY SUBJECT TO THIS DECLARATION.
6 Section 1.
Property Subject to This Declaration.
6 Section 2.
Other Property...
.6 ARTICLE III.
ASSOCIATION MEMBERSHIP AND VOTING RIGHTS .6 Section 1.
Classes of Membership .6 Section 2.
Directors Appointed by Declarant 7 Section 3.
Directors Elected by Members..
.7 ARTICLE IV.
ASSESSMENTS .7 Section 1.
Obligation for Assessments 7 Section 2.
Purpose of Assessments.
7 Section 3.
Amount of Assessments; Budgets 7 Section 4.
Effect of Non-Payment; Remedies 8 Section 5.
Supplementary Budgets 9 Section 6.
Certificate of Payment .9 Section 7.
Special Assessments .9 Section 8.
No Setoff or Deduction 9 Section 9.
Application of Payments.
10 Section 10.
Date of Commencement of Assessments.
10 Section 11.
Individual Assessment 10 ARTICLE V.
7.
Special Assessments .9 Section 8.
No Setoff or Deduction 9 Section 9.
Application of Payments.
10 Section 10.
Date of Commencement of Assessments.
10 Section 11.
Individual Assessment 10 ARTICLE V.
MAINTENANCE & CONVEYANCE OF COMMON AREA TO ASSOCIATION.
10 Section 1 Common Area Use.....
10 Section 2.
Association's Responsibility to Maintain Area of Common Responsibility 10 Section 3.
Owner's Responsibility.
12 Section 4.
Conveyance of Common Area and Personal Property by Declarant to Association 13 Section 5 Obligations Regarding BMP Facilities 14 ARTICLE VI.
USE RESTRICTIONS AND RULES 17 Section 1.
General 17 Section 2.
Residential Use 17 Section 3.
Architectural Standards..
18 Section 4.
Signs...
19 Section 5.
Parking and Vehicular Restrictions .20 Section 6.
Garages .20 Section 7.
Leasing.
.20 Section 8.
Occupants Bound .20 Section 9.
Animals and Pets.
.21 Section 10.
Nuisance.
.21 55 at the Park i Book9535 - Page 60 Page 3 of 48 Section 11.
Unsightly or Unkempt Conditions.
.21 Section 12.
Antennas .21 Section 13.
Tree Removal .22 Section 14.
Drainage.
.22 Section 15.
Sight Distance at Intersections.
22 Section 16.
Garbage Cans, Woodpiles, Trash Collection, Etc.
.22 Section 17.
Subdivision of Lot..
.22 Section 18.
Guns .23 Section 19.
Fences.
.23 Section 20.
Utility Lines .23 Section 21.
Air Conditioning Units .23 Section 22.
Lighting.
..23 Section 23.
Artificial Vegetation, Exterior Sculpture and Similar Items .23 Section 24.
Energy Conservation Equipment.
..23 Section 25.
Gardens and Play Equipment..
.23 Section 26.
Mailboxes...
.23 Section 27.
Exteriors .24 Section 28.
Clothesline .24 Section 29.
Exterior Security Devices .24 Section 30.
Entry Features .24 Section 31.
Storage Sheds, Garages and Other Improvements.
.24 Section 32.
Sewer Systems .24 Section 33.
on 28.
Clothesline .24 Section 29.
Exterior Security Devices .24 Section 30.
Entry Features .24 Section 31.
Storage Sheds, Garages and Other Improvements.
.24 Section 32.
Sewer Systems .24 Section 33.
Wetlands .24 Section 34 Swimming Pools 25 Section 35 Rules and Regulations.
.25 Section 36 Retaining Walls.
.25 Section 36 Certain Rights of Declarant .25 ARTICLE VII.
INSURANCE AND CASUALTY LOSSES .25 Section 1.
Insurance on Common Area .25 Section 2.
Liability Insurance .25 Section 3.
Declarant .26 Section 4.
Premiums .26 Section 5.
Miscellaneous .26 Section 6.
Damage and Destruction—Insured by Association..
.27 Section 7.
Insurance on the Dwellings.
.28 Section 8.
Damage and Destruction to Improvements Located on a Lot .28 ARTICLE VIII CONDEMNATION .29 ARTICLE IX ΑΝΝΕΧΑTION OF ADDITIONAL PROPERTY.
.29 Section 1.
Unilateral Annexation by Declarant .29 Section 2.
Other Annexation.
.30 ARTICLE Χ.
EASEMENTS 30 Section 1.
Easements for Encroachment and Overhang .30 Section 2.
Easements for Use and Enjoyment 30 Section 3.
Easements for Access, Utilities and Other Purposes .32 Section 4.
Easement for Drainage....
32 Section 5.
Easement for Entry .33 55 at the Park ii Book9535 - Page 61 Page 4 of 48 Section 6.
Easement for Maintenance..
33 Section 7.
Section 8.
Easement for Sign, Entry and Streetscape Features.
Construction and Sale Period Easement .33 33 Section 9.
Irrigation Easements .34 Section 10.
Fence Easement .34 Section 11.
Easements in Favor of Additional Property.
.34 Section 12 Dwelling Maintenance Easement .35 Section 13 Blanket Easement.
..35 Section 14 Declarant's Easement to Inspect Lots and Dwellings.
.35 Section 15 Retaining Wall/Privacy Fence Easement.
.35 ARTICLE ΧΙ.
GENERAL PROVISIONS .36 Section 1.
Enforcement.
.36 Section 2.
Self-Help .36 Section 3.
t's Easement to Inspect Lots and Dwellings.
.35 Section 15 Retaining Wall/Privacy Fence Easement.
.35 ARTICLE ΧΙ.
GENERAL PROVISIONS .36 Section 1.
Enforcement.
.36 Section 2.
Self-Help .36 Section 3.
Duration .36 Section 4.
Amendment.
.36 Section 5.
Partition..
37 Section 6.
Gender and Grammar.
.37 Section 7.
Severability .37 Section 8.
Captions .38 Section 9.
Perpetuities.
.38 Section 10.
Indemnification ..38 Section 11.
Books and Records ..38 Section 12.
Financial Review ..39 Section 13.
Notice of Sale, Lease, or Acquisition ..39 Section 14.
Agreements ..39 Section 15.
Implied Rights.
.39 ARTICLE XII.
PARTY WALLS 39 Section 1.
General Rules of Law to Apply .39 Section 2.
Repair and Maintenance 39 Section 3.
Destruction by Fire or Other Casualty .39 Section 4.
Exposure to the Elements.
.40 Section 5.
Assignment of right of Contribution...
.40 Section 6.
Estoppel Certificate.
.40 Section 7.
Easement for Repair and Maintenance .40 Section 8.
Arbitration.
.40 ARTICLE XIII. VARIANCES.
.41 ARTICLE XIV. LITIGATION.
.41 ARTICLE XV.
CAPITALIZATION OF ASSOCIATION/STORMWATER ESCROW........41 Section 1.
Working Capital Contribution ARTICLE XVI. BULK SERVICES AND BULK SERVICE CONTRACT(S) .41 ......
.42_ 55 at the Park iii Book9535 - Page 62 Page 5 of 48 DECLARATION OF COVENANTS, CONDITIONS, RESTRICTIONS AND EASEMENTS FOR 55 AT THE PARK This DECLARATION OF COVENANTS, CONDITIONS, RESTRICTIONS AND EASEMENTS FOR 55 AT THE PARK (this “Declaration”) is made as of the 18th day of November, 2021, by Pulte Home Company, LLC, a Michigan limited liability company (“Pulte”).
WITNESSETH: WHEREAS, Pulte is the owner of the real property described on Exhibit A; and WHEREAS, Pulte desires to subject the real property described on Exhibit A, and possibly
ity company (“Pulte”).
WITNESSETH: WHEREAS, Pulte is the owner of the real property described on Exhibit A; and WHEREAS, Pulte desires to subject the real property described on Exhibit A, and possibly other property, to the provisions of this Declaration to create a residential community.
Accordingly, Pulte has created a North Carolina non-profit corporation known as 55 at the Park Homeowners Association, Inc., to exercise certain rights and obligations in this Declaration with respect to such real property. The owners of residential dwellings to be constructed upon such property shall be members of such association.
NOW THEREFORE, Pulte hereby declares that the real property described on Exhibit A of this Declaration, including any improvements which may be (but are not required to be) constructed on that property, is subjected to the provisions of this Declaration. Such real property shall be held, sold, transferred, conveyed, used, occupied, and mortgaged or otherwise encumbered subject to the covenants, conditions, restrictions, easements, assessments, and liens, contained in this Declaration. The provisions of this Declaration shall run with the title to the property now or hereafter subjected to this Declaration. This Declaration shall be binding on all Persons having any right, title, or interest in all or any portion of the property now or hereafter made subject hereto, their respective heirs, legal representatives, successors, successors-in-title, and assigns and shall inure to the benefit of each and every owner of all or any portion thereof.
ARTICLE I.
DEFINITIONS The following words, when used in this Declaration (unless the context shall prohibit), shall have the following meanings:
of each and every owner of all or any portion thereof.
ARTICLE I.
DEFINITIONS The following words, when used in this Declaration (unless the context shall prohibit), shall have the following meanings: “Act” means the North Carolina Planned Community Act, as contained in Chapter 47F of the North Carolina General Statutes (or as contained in any successor portion of the North Carolina General Statutes), as the same exists from time to time. The Act is referred to herein from time to time as G.S. 47F, with the particular section number following the G.S. 47F reference (for example, G.S. 47F-1-101). Words and terms used in this Article that are defined in the Act but not defined in the Code (for example, the term special declarant rights), have the definition contained in the Act.
55 at the Park 1 Book9535 - Page 63 Page 6 of 48 “Affiliate” means: (1) any corporation at least fifty percent (50%) of the voting stock of which is owned or controlled by the Declarant, and any partnership, joint venture or limited liability company in which the Declarant has at least a fifty percent (50%) equity interest or an interest in at least fifty percent (50%) of the cash flow from such partnership, joint venture or company; or (ii) any Person owning or controlling at least a fifty percent (50%) equity interest in Declarant or an interest in at least fifty percent (50%) of the cash flow from Declarant.
“Annexation Declaration” means a document, by whatever name denominated, that is recorded for the purposes of annexing additional property to this Declaration and causing such property to be subject to the scheme of covenants, charges, conditions and restrictions contained in this Declaration and any additional covenants, charges, conditions and restrictions contained in
ch property to be subject to the scheme of covenants, charges, conditions and restrictions contained in this Declaration and any additional covenants, charges, conditions and restrictions contained in the Annexation Declaration.
“Architectural Review Committee” means the architectural review committee for the Community established and empowered as provided in Article VI of this Declaration “Areas of Common Responsibility” mean the Common Area, together with such other areas, if any, for which the Association has responsibility pursuant to this Declaration, any recorded plat, other covenants, contracts, or agreements.
“Articles” means the Articles of Incorporation of the Association.
*““Assessment(s)” means a payment (or payments) which an Owner is obligated to pay to the Association as permitted or contemplated by this Declaration.
“Association” means 55 at the Park Homeowners Association, Inc., a North Carolina nonprofit corporation, its successors and assigns.
“Association Documents” means in the aggregate this Declaration, the Articles, the Bylaws, the rules and regulations published by the Association, and all of the instruments and documents referred to or incorporated therein, as they may be amended from time to time.
“Board of Directors” or “Board” means the board of directors of the Association, and is the “executive board” as defined in the Act. The Board is responsible for the management and administration of the Association as provided for in this Declaration and in the Act.
“Bylaws” mean the Bylaws of the Association.
“Common Area” means real property, together with any improvements situated thereon, intended for the common use and benefit of Owners and Occupants of the Properties, however
ylaws of the Association.
“Common Area” means real property, together with any improvements situated thereon, intended for the common use and benefit of Owners and Occupants of the Properties, however such real property is described on a plat or document recorded in the Registry of Deeds for the Counties in which the Community is located. Common Area may be owned or leased by the Association or it may be owned by another Person with the Association having a right or easement therein.
“Common Expenses” means the expenditures made by and the financial liabilities of the Association, together with any allocations for reserves, including specifically, but without limitation, all of the following: 55 at the Park 2 Book9535 - Page 64 Page 7 of 48 (1) All sums lawfully assessed by the Association against its Members; (2) Expenses of the Common Area and administration, inspection and maintenance of the Common Area; (3) Expenses classified as Common Expenses under the Act, the Code, or under the provisions of this Declaration or other Governing Documents; (4) Expenses for acquisition, maintenance, repair, restoration, replacement, use and operation of personal property owned or leased by the Association for the benefit of the Members; (5) Premiums for property, liability or such other insurance premiums as this Declaration or other Governing Documents may require the Association to purchase; (6) Ad valorem taxes and public assessment and charges lawfully levied against any Common Area owned in fee simple by the Association; (7) Fees or charges for utilities used in connection with the Common Area; (8) Any unpaid Association Assessment following the foreclosure of a first mortgage or first deed of trust or an Assessment lien; (9) Allocations to reserve funds;
in connection with the Common Area; (8) Any unpaid Association Assessment following the foreclosure of a first mortgage or first deed of trust or an Assessment lien; (9) Allocations to reserve funds; (10) Fees for services engaged by the Association; (11) Costs and expenses for which the Association is obligated under any easement agreement or other agreement serving or encumbering all or portions of the Community; (12) Costs and expenses incurred by the Association to keep and maintain, repair and replace the landscaping for which the Association is responsible as provided in Section 3(b) of Article V.
(13) Financial obligations of the Association or financial obligations of Members with respect to which the Association has responsibility for collection and payment; (14) Expenses incurred by the Association in performing its functions and providing services, including operating, management, enforcement and administrative expenses; (15) Expenses incurred by the Association in maintaining, operating, inspecting, and repairing the Project Drainage System including, but not limited to, the expenses related to the Association’s performance of its obligations under the Stormwater Agreement for the routine maintenance and repair of the BMP Facilities, and for funding the reserve for the BMP Facilities; 55 at the Park 3 Book9535 - Page 65 Page 8 of 48 (16) Fees or expenses incurred by the Association to operate, maintain and repair the street lights located within the Community, including the costs of the electricity used to illuminate the street lights; and (17) Any other expenses deemed appropriate by the Board that are consistent with the plan of development for the Community or are necessary for the Association to
to illuminate the street lights; and (17) Any other expenses deemed appropriate by the Board that are consistent with the plan of development for the Community or are necessary for the Association to perform its duties or meet its obligations in the Association Documents.
“Community” means 55 at the Park, the residential community to be constructed upon the Properties.
“Community Standard” means the standard of conduct, maintenance, or other activity generally prevailing in the Community. Such standard may be more specifically determined by the Board of Directors of the Association. Such determination must be consistent with the Community Standard originally established by the Declarant.
“Declarant” means Pulte Home Company, LLC, a Michigan limited liability company, as well as its successors and assigns pursuant to an express assignment or conveyance of any special Declarant rights hereunder to such successor or assign, all of which rights, including Declarant’s voting, easement and development rights, shall be assignable and may be apportioned on a lot-bylot basis. Any such assignment shall be recorded in the office of the Register of Deeds of the county in which the Community is located.
“Declarant Control Period” means the period commencing on the date this Declaration is recorded in the Public Records (as defined below) and ending on the earlier of (i) the date on which 100% of the lots developed or to be developed as part of the Community (including all present and future phases) pursuant to development plans maintained by the Declarant, as such plans may be revised and amended from time-to-time, have been conveyed to Persons other than Declarant; or (ii) the date on which Declarant records in the Public Records a document
Declarant, as such plans may be revised and amended from time-to-time, have been conveyed to Persons other than Declarant; or (ii) the date on which Declarant records in the Public Records a document relinquishing its authority to appoint and remove directors and officers of the Association.
“Declarant’s Development Period” means the period of time commencing on the date this Declaration is recorded in the Public Records, and continuing until the later of: (i) one (1) year after Declarant shall cease to own any property within the Community; or (ii) for so long as Declarant shall have the unilateral right to subject additional property to this Declaration.
“Declaration” shall include this Declaration of Covenants, Conditions, Restrictions and Easements for 55 at the Park, as the same may be supplemented or amended pursuant to any Annexation Declaration or any amendment to this Declaration in accordance with its terms.
“Dwelling” means an individual single-family attached residential dwelling constructed upon and as part of a Lot.
“Governmental Authorities” means the federal government, the State of North Carolina, the County of Durham, the City of Durham (the “City”), and any agency or instrumentality of them having jurisdiction over the Properties or any portion thereof.
“Institutional Mortgagee” means any lending institution holding an interest in a Lot pursuant to a first mortgage covering a Lot. Institutional Mortgagees shall include, but not be limited to (i) the successors and assigns of such lending institutions, (ii) any “secondary mortgage market institution” who typically purchase, insure or guaranty mortgages (such as the Federal 55 at the Park 4 Book9535 - Page 66 Page 9 of 48
f such lending institutions, (ii) any “secondary mortgage market institution” who typically purchase, insure or guaranty mortgages (such as the Federal 55 at the Park 4 Book9535 - Page 66 Page 9 of 48 National Mortgage Association, the Veterans Administration (“VA”), the Federal Housing Administration (“FHA”), the Department of Housing and Urban Development (“HUD”), and similar entities), (iii) Declarant, if Declarant holds a mortgage on any portion of the Properties.
“Lot” shall mean and refer to any lot or any separately numbered portion of the Properties shown on any now or subsequently recorded subdivision plat of the Properties intended for use or used as a site for any single-family attached or detached dwelling, patio (zero lot line) home, townhome or condominium unit and shall include any improvements constructed thereon and “Lots” shall refer to all or any referenced subset of such lots collectively, and may include one or more of the Lots. Declarant hereby reserves the right to reconfigure, from time to time and without the consent of any other Owner or the Members of the Association, the boundaries of any Lot or Lots owned by Declarant or an Affiliate, as the case may be, and to thereby create additional Lots, eliminate existing Lots or create additional Common Area. If Declarant elects to exercise its right to revise the boundaries of one or more Lots owned by Declarant, Declarant shall record a revised plat of the affected Lot or Lots. Upon the recording by Declarant of such a revised plat, each lot shown on the previously recorded plat or plats, the boundaries of which are revised by the revised plat, shall cease to be a “Lot” as defined in this Declaration and each newly configured lot shown
ot shown on the previously recorded plat or plats, the boundaries of which are revised by the revised plat, shall cease to be a “Lot” as defined in this Declaration and each newly configured lot shown on the revised plat shall be a “Lot” as defined in this Declaration.
“Mortgage” means any mortgage, security deed, deed of trust, or similar instruments used for the purpose of encumbering real property in the Community as security for the payment or satisfaction of an obligation.
“Mortgagee” shall mean the holder of a Mortgage.
“Occupant” shall mean any Person occupying all or any portion of a Lot or other property located within the Community for any period of time, regardless of whether such Person is a tenant or the Owner of such property.
“Owner” shall mean the record owner, whether one or more Persons, of the fee simple title to any Lot located within the Community, excluding any Person holding such interest merely as security for the performance or satisfaction of any obligation, and “Owners” shall refer to all or any referenced subset of such owners.
“Person” means a natural person, corporation, joint venture, partnership (general or limited), association, trust, or other legal entity.
“Project Drainage System” means the system of storm water drainage for the Community, which consists of the BMP Facilities, surface swales or ditches, underground piping, catch basins, and other related facilities to achieve proper drainage for the Properties.
“Properties” means the real property and interests described on Exhibit A and such additions to that property as may be made by Declarant or by the Association pursuant to this Declaration.
“Public Records” means the Register of Deeds Office of Durham County, North Carolina,
nd such additions to that property as may be made by Declarant or by the Association pursuant to this Declaration.
“Public Records” means the Register of Deeds Office of Durham County, North Carolina, or such other authorized office in the applicable County in which deeds and other land records and documents are filed for public notice.
55 at the Park 5 Book9535 - Page 67 Page 10 of 48 “Shared Wall” or “Shared Walls” means one or more retaining walls originally installed by Declarant and/or the Association for the purpose of providing additional structural support for improvements within Canterbury, which are located (1) entirely on Common Area, (ii) on two or more Lots, (111) on Common Area and one or more Lots, or (iv) located entirely on one Lot and (a) has at least one exposed face (i.e., one above-ground surface) exceeding one-hundred and fifty (150) square feet in area, and (b) has an above-ground height of (X) at least four (4) feet for a continuous span of fifteen (15) feet or (Y) in excess of 10 feet at any point.
By way of example, any of the following would constitute a Shared Wall: (X) a wall on a single Lot having an above-ground height of four (4) feet for a length of thirty-eight (38) feet, or (Y) a wall on a single Lot that has a ten (10) foot long section with an above-ground height of four (4) feet, a twenty-five (25) foot long section with an above-ground height of three and one-half (3.5) feet, and a six (6) foot long section with an above-ground height of four (4) feet, or (Z) a wall on a single Lot that has an eighteen (18) foot long section with an above-ground height of ten (10) feet.
ARTICLE II.
PROPERTY SUBJECT TO THIS DECLARATION Section 1. Property Subject To This Declaration. The real property which is subject
18) foot long section with an above-ground height of ten (10) feet.
ARTICLE II.
PROPERTY SUBJECT TO THIS DECLARATION Section 1. Property Subject To This Declaration. The real property which is subject to the covenants and restrictions contained in this Declaration is the real property described in Exhibit A.
Section 2. Other Property. Only the real property described in Section 1 of this Article is made subject to this Declaration. However, Declarant may subject all or portions of the additional real property described in Article IX, Section 1 hereof by recording one or more Annexation Declarations.
ARTICLE II.
ASSOCIATION MEMBERSHIP AND VOTING RIGHTS Section 1. Classes of Membership. The Association shall have two classes of voting membership: Class A: The Class A Members shall be every Person who or which is a record owner of a fee or undivided fee interest in any Lot which is subject by covenants of record to assessment by the Association, except for Declarant or any Affiliate, during any Period of Declarant Control. The foregoing is not intended to include Persons that hold an interest in a Lot merely as security for the performance of an obligation. Class A Members shall be entitled to one (1) vote for each Lot owned. When more than one Person holds an interest in any Lot, all such Persons shall be Members, but such Members collectively shall not be entitled to cast more than one (1) vote with respect to such Lot.
Class B: Declarant shall be the Class B Member and Declarant shall be entitled to three (3) votes for each Lot that is owned by Declarant and/or any Affiliate. The Class B membership shall cease and be converted to Class A membership at such time as Declarant no longer has the right to appoint the members of the Board of the Association pursuant to
ffiliate. The Class B membership shall cease and be converted to Class A membership at such time as Declarant no longer has the right to appoint the members of the Board of the Association pursuant to the provisions of Section 2 of this Article.
55 at the Park 6 Book9535 - Page 68 Page 11 of 48 Section 2. Directors Appointed by Declarant. The Declarant shall have the right to appoint or remove any member or members of the Board or any officer or officers of the Association until the expiration of the Declarant Control Period. Each Owner, by acceptance of a deed to or other conveyance of a Lot, vests in Declarant such authority to appoint and remove directors and officers of the Association. The directors selected by the Declarant need not be Owners or residents in the Community.
Section 3. Directors Elected by the Members. Following the expiration of the period during which Declarant shall have the right to appoint and remove Directors as set forth in Section 2 above, the Directors of the Association shall be elected by the Owners in accordance with the terms of this Declaration and the Articles and Bylaws of the Association. The initial Board of Directors elected by the Members of the Association shall consist of three (3) members. The Directors selected by the Members of the Association shall be elected at the Annual Meeting of the Association as provided by the Bylaws of the Association, and at least a majority of the Directors shall be Members of the Association or employees, officers, directors, shareholders, partners or members of a corporate, partnership or company Member of the Association.
ARTICLE IV.
ASSESSMENTS Section 1. Obligation for Assessments. In order to: (i) fulfill the terms, provisions,
rs, partners or members of a corporate, partnership or company Member of the Association.
ARTICLE IV.
ASSESSMENTS Section 1. Obligation for Assessments. In order to: (i) fulfill the terms, provisions, covenants and conditions contained in the Association Documents; and (ii) maintain, operate and preserve the Common Area for the welfare and benefit of the Members and their family members, guests, invitees and lessees, there is hereby imposed upon each Lot and the Owners, the affirmative covenant and obligation to pay to the Association (in the manner herein set forth) all Assessments, which include, but are not limited to, “Base Assessments”, “Special Assessments”, and “Individual Expense Assessments (as those terms are hereinafter defined). Each Owner by acceptance of a deed or other instrument of conveyance of a Lot from Declarant, whether or not it shall be so expressed in such deed or instrument, shall be obligated and agrees to pay to the Association all Assessments for Common Expenses and all other Assessments established herein in accordance with the provisions of the Association Documents.
Section 2. Purpose of Assessments. The regular annual Assessment (referred to below as the “Base Assessment”) is primarily for the purpose of funding the Common Expenses of the Association, in accordance with the budget for the fiscal year to which it applies, although such Assessments may be used for payment of any Common Expenses as determined by the Board.
Section 3. Amount of Assessments; Budgets. The Board of Directors shall adopt a proposed budget of Common Expenses for the Association at least annually. Based on the proposed budget, the Board of Directors shall establish the amount of the regular annual
Directors shall adopt a proposed budget of Common Expenses for the Association at least annually. Based on the proposed budget, the Board of Directors shall establish the amount of the regular annual Assessment to be levied against each Lot by dividing the budgeted amount of the Common Expenses by the number of Lots subject to assessment hereunder, with the quotient thus arrived at being the Base Assessment.
Notwithstanding the foregoing, during the Declarant Control Period, the Board shall have the right, but not the obligation to establish the amount of the annual Base Assessment by dividing the budgeted amount of Common Expenses by the total number of Lots shown on Declarant’s current development plan approved by the Governmental Authorities for the Community.
55 at the Park 7 Book9535 - Page 69 Page 12 of 48 Within thirty (30) days after the adoption of the proposed budget, the Board of Directors shall send a summary of the proposed budget to the Members and a deliver 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 ten (10) days nor more than sixty (60) days after the mailing of such notice.
Such meeting may, but need not be, combined with the annual meeting of the Members. There shall be no requirement that a quorum be present to vote on ratification of the budget (although a quorum must be present to vote on other matters). That budget shall be deemed ratified unless at that meeting the Members entitled to cast at eighty percent (80%) of the votes of the entire membership vote to reject the budget. Provided, however, if the amount of the annual Base Assessment reflected in the proposed budget exceeds 110% of the Base Assessment last ratified
es of the entire membership vote to reject the budget. Provided, however, if the amount of the annual Base Assessment reflected in the proposed budget exceeds 110% of the Base Assessment last ratified by the Members and in effect for the fiscal year of the Association immediately preceding the fiscal year that is the subject of the proposed budget, that portion of such budget may be rejected by a vote of the Members at the meeting entitled to cast at least a majority of the votes of the Association. If any proposed budget is rejected by the Members in accordance with the provisions of this Section 3, the budget last ratified by the Members shall be continued until such time as the Members ratify a subsequent budget, or portion thereof, proposed by the Board.
Until December 31 of the year of the conveyance of the first Lot to an Owner other than Declarant or an Affiliate, the annual amount of the Base Assessment shall be One Thousand Eight Hundred Ninety-Six Dollars ($1,896.00) per year, or One Hundred Fifty-Eight Dollars ($158.00) per month. The Base Assessment for each subsequent fiscal year for purposes of voting percentages to ratify the budget shall be 110% of the amount of the Base Assessment, as the case may be, for the immediately preceding fiscal year.
Section 4. Effect of Non-Payment; Remedies. No Owner shall be exempt from liability for any Assessment provided for herein for reason of non-use of the Common Area or such Owner’s Lot, or abandonment or leasing of such Owner’s Lot, or unavailability of the use or enjoyment of the Common Area. All Assessments and other charges shall be established and collected as provided in this Declaration. All Assessments and other charges remaining unpaid
ity of the use or enjoyment of the Common Area. All Assessments and other charges shall be established and collected as provided in this Declaration. All Assessments and other charges remaining unpaid for thirty (30) days or longer, together with late charges, interest, and the costs of collection thereof, including attorney’s fees, shall be a charge on the Owner’s Lot as provided in G.S. 47F-3-116 of the Act and, upon filing of a claim of lien in the office of the clerk of superior court of the county in which the Lot is located in the manner provided in G.S. 47F-3-116(g), shall be a continuing lien upon the Lot against which such Assessment is made until paid in full. The lien may be foreclosed by the Association in any manner permitted under the Act or by law. When the holder of a first mortgage or first deed of trust of record or other purchaser of a Lot who obtains title to the Lot as a result of a 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 and other charges against such Lot which became due prior to the acquisition of title to such Lot by such purchaser. Each Assessment and other charges due hereunder, together with late charges, interest, the costs of collection thereof, including attorney’s fees, shall also be the personal obligation or corporate obligation of each Person who was Owner of the Lot at the time when the Assessment or other charge first became due and payable and may be collected by appropriate action at law. If more than one Person held an ownership interest in the Lot at the time the Assessment or other charge first became due, then each Person shall be both jointly and severally liable. An Owner’s personal obligation for payment
ld an ownership interest in the Lot at the time the Assessment or other charge first became due, then each Person shall be both jointly and severally liable. An Owner’s personal obligation for payment of such Assessments and other charges shall not become the personal obligation of a subsequent Owner unless expressly assumed by the subsequent Owner, although the lien shall continue against the Lot until the amounts due are paid.
55 at the Park 8 Book9535 - Page 70 Page 13 of 48 Section 5. Supplementary Budgets. The ratification of a budget for a specified period of time shall not preclude the adoption of a modified budget by the Board at any time to address increases in Common Expenses or unforeseen or unexpected Common Expenses. Any modified budget that results in an increase of the Base Assessment must be ratified pursuant to the provisions Section 3 of this Article.
Section 6. Certificate of Payment. The Association shall, within ten (10) business days after receiving a written request, furnish a certificate signed by an officer of the Association setting forth whether the Assessments, other charges, and fines on a specified Lot have been paid.
A properly executed certificate shall be binding upon the Association, the Board, and the Owner as of the date of issuance. The Board shall have the right to impose a reasonable charge for providing this certificate.
Section 7. Special Assessments. “Special Assessments” include those Assessments which are levied for capital improvements which include the costs of constructing or acquiring improvements on or for the Common Area or the costs of repairing, reconstructing or replacing such improvements. Special Assessments shall be in addition to, and are not part of, any “Base
r acquiring improvements on or for the Common Area or the costs of repairing, reconstructing or replacing such improvements. Special Assessments shall be in addition to, and are not part of, any “Base Assessment”. Any such Special Assessments assessed against Lots shall be paid by the Owners in addition to any other Assessments. Special Assessments shall be assessed in the same manner as the Base Assessment. Special Assessments shall be paid in such installments or in a lump sum as the Board of Directors shall, from time to time, determine. In any fiscal year of the Association after the expiration of Declarant’s Development Period, the levying of any Special Assessment shall require the affirmative assent of at least two-thirds (2/3) of the votes held by each class of Members represented in person or by proxy at a meeting called and held in accordance with the Bylaws. In any fiscal year of the Association prior to the expiration of Declarant’s Development Period, the levying of any Special Assessment which exceeds five percent (5%) of the budgeted Common Expenses of the Association for that fiscal year, shall require the affirmative assent of at least two-thirds (2/3) of all votes held by each class of Members represented in person or by proxy at a meeting called and held in accordance with the Bylaws. Any Special Assessment levied prior to the expiration of Declarant’s Development Period in an amount equal to 5% or less of the budgeted Common Expenses of the Association for a fiscal year may be levied by the Board of Directors without the approval or consent of the Owners or any other party.
In addition, any expenses incurred by the Association for any obligation of the Association
ar may be levied by the Board of Directors without the approval or consent of the Owners or any other party.
In addition, any expenses incurred by the Association for any obligation of the Association to reimburse the City for expenses incurred by the City in performing the Association’s obligations (if applicable) under the Stormwater Agreement, shall be the subject of a Special Assessment as provided in accordance with this Section 7 of Article IV.
Section 8. No Set-Off or Deduction. No Owner may waive or otherwise exempt himself from liability for the Assessments provided for in this Declaration. No setoff, diminution, or abatement of any Assessment shall be claimed or allowed by reason of any alleged failure of the Association to take some action, for inconvenience or discomfort arising from the making of repairs or improvements which are the responsibility of the Association, or from any action taken by the Association to comply with any law, ordinance, or with any order or directive of any municipal or other governmental authority. The obligation to pay Assessments is a separate and independent covenant on the part of each Owner and is not subject to set-off.
55 at the Park 9 Book9535 - Page 71 Page 14 of 48 Section 9. Application of Payments. All payments shall be applied first to costs, then to late charges, then to interest, and then to delinquent Assessments.
Section 10. Date of Commencement of Assessments. As to each Lot, Assessments shall start on the date of the conveyance of the Lot to a Person other than Declarant. The first annual Assessment levied on a Lot shall be adjusted according to the number of days then remaining in that fiscal year.
Section 11. Individual Assessment. Pursuant to this Section, the Board shall have the
l Assessment levied on a Lot shall be adjusted according to the number of days then remaining in that fiscal year.
Section 11. Individual Assessment. Pursuant to this Section, the Board shall have the power to levy individual Assessments for the following Association expenses: (a) Expenses of the Association which benefit less than all of the Lots may be individually assessed equitably among all of the Lots which are benefited according to the benefit received; (b) Expenses of the Association which benefit all Lots, but which do not provide an equal benefit to all Lots, may be assessed equitably among all Lots according to the benefit received.
(c) Expenses incurred by Declarant or the Association as a result of an Owner’s failure or refusal to comply with the Association Documents including, but not limited to, non-compliance of Dwellings and any other improvements or personal property located upon a Lot with the standards set forth in the Association Documents, may be individually assessed against the subject Owner(s) and collected and enforced in the same manner as any other Assessments hereunder as provided herein.
Failure of the Board to exercise its authority under this Section shall not be grounds for any action against the Association or the Board of Directors and shall not constitute a waiver of the Board’s right to exercise its authority under this Section in the future.
ARTICLE V.
COMMON AREA USE; MAINTENANCE AND CONVEYANCE OF COMMON AREA Section 1. Common Area Use. The Common Area is for the use, enjoyment, and benefit of the Association and the Owners and Occupants of the Lots, and their respective guests and invitees, tenants, and any other Person authorized to use the Common Area or any portion
yment, and benefit of the Association and the Owners and Occupants of the Lots, and their respective guests and invitees, tenants, and any other Person authorized to use the Common Area or any portion thereof by Declarant or the Association, subject to the ordinances and requirements of the City and other applicable Governmental Authorities.
Section 2. Association’s Responsibility to Maintain Areas of Common Responsibility. The Association shall maintain in good repair all Areas of Common Responsibility, as follows: (a) The Association shall maintain, repair, and replace all improvements situated on the Common Area, provided that the Association shall only be required to replace landscaping improvements if and when required to do so by a Governmental Authority. The Association shall also maintain, repair and replace all entry features 55 at the Park 10 Book9535 - Page 72 Page 15 of 48 (including the expenses for water and electricity, if any, provided to all such entry features); operate and maintain street lights (if not maintained and operated by a Governmental Authority) for the Community, common privacy fencing installed by Declarant or the Association within the Community, the internal private streets within the Community, the BMP Facilities and all other storm water facilities and easements serving the Community.
To the extent that any portion of a retaining wall or perimeter privacy fence installed by Declarant is located upon a Lot, Declarant has reserved an easement in favor of Declarant and the Association pursuant to Section 15 of Article X and has restricted the use of the portions of any Lot upon which any portion of a retaining wall or privacy fence is located, as provided in the applicable Sections of Article VI.
tion 15 of Article X and has restricted the use of the portions of any Lot upon which any portion of a retaining wall or privacy fence is located, as provided in the applicable Sections of Article VI.
(b) The Association shall provide gutter cleaning and termite inspection and treatment services for the Dwellings on a periodic basis.
(c) The City will not be providing trash or recycling collection and removal services to the Community. The Association is obligated to provide private trash and recycling collection and removal service for the Community from a private waste management service provider. The expenses incurred by the Association in providing this service are a Common Expense.
(d) The Association shall maintain, repair, and replace the Shared Walls, and the Association’s cost for such maintenance, repair, and replacement shall constitute Common Expenses. All retaining walls and other walls other than Shared Walls shall be maintained by the Owner of the Lot or other real property upon which such walls are located.
(e) The Association shall have the right, but not the obligation, to maintain other property not owned by the Association, within or serving the Community, where the Board has determined that such maintenance would benefit the Owners.
(f) The Association shall have the right, but not the obligation, from time to time, as determined by the Board in its sole discretion, to make reasonable modifications to the scope of the services to be provided by the Association.
(g) The Association shall not be liable to any Owner, or any Owner’s Occupant, guest, or family member for any damage or injury caused in whole or in part by the Association’s failure to discharge its responsibilities. No diminution or abatement of
wner, or any Owner’s Occupant, guest, or family member for any damage or injury caused in whole or in part by the Association’s failure to discharge its responsibilities. No diminution or abatement of assessments shall be claimed or allowed by reason of an alleged failure of the Association to take some action or perform some function required to be taken or discomfort arising from the making of repairs or improvements which are the responsibility of the Association. The Association shall repair incidental damage to any Lot resulting from performance of work which is the responsibility of the Association.
(h) In the event that the Association determines that the need for maintenance, repair, or replacement of property that is to be maintained, repaired or replaced by the Association in accordance with the terms of this Declaration is caused through the willful or negligent act of an Owner, or the family, guests, lessees, or invitees of any Owner, and is not covered or paid for by insurance maintained by or on behalf of the Association, in whole or in part, then the Association may perform such maintenance, repair, or 55 at the Park 11 Book9535 - Page 73 Page 16 of 48 replacement at such Owner’s sole cost and expense, and assess all costs thereof as an Individual Assessment against such Owner and such Owner’s Lot; provided, however, during Declarant’s Development Period, any such action by the Association shall require the Declarant’s prior written consent. Such Owner may request a hearing by the Board of Directors, or an adjudicatory panel appointed by the Board, to determine responsibility for the damages if the monetary amounts involved are less than or equal to the jurisdictional amount established for small claims under North Carolina law. The hearing shall afford
mine responsibility for the damages if the monetary amounts involved are less than or equal to the jurisdictional amount established for small claims under North Carolina law. The hearing shall afford notice of the charge to the Owner, an opportunity for the Owner to be heard and to present evidence, and a notice of decision by the Board. The Board of Directors or its appointees may not assess liability in an amount in excess of the jurisdictional amount established for small claims under North Carolina law.
(i) Maintenance performed by the Association shall be performed in a manner that is consistent with the Community Standard.
(j) The Association shall have the right, but not the obligation, as determined by the Board, to allow a third party to install and maintain additional landscaping improvements and related features on that portion of the Properties located east of Del Webb Arbors Drive, and to enter into an agreement or agreements regarding the installation and maintenance of such additional landscaping improvements as appropriate. The Board may exercise the right specified in this subsection 3(j) of Article V without the prior approval of the members of the Association as long as the Board reasonably determines that such easement and/or agreement will not have a detrimental or adverse effect on the Community.
Section 3. Owner’s Responsibility. Except as provided in Article V, Section 3 above, all maintenance of the Lot and all structures, parking areas, landscaping, and other improvements thereon shall be the sole responsibility of the Owner thereof. Each Lot shall be maintained in a manner consistent with the Community Standard and this Declaration. In the event that the Board
vements thereon shall be the sole responsibility of the Owner thereof. Each Lot shall be maintained in a manner consistent with the Community Standard and this Declaration. In the event that the Board determines that any Owner has failed or refused to discharge properly any of such Owner’s obligations with regard to the maintenance, repair, or replacement of items for which such Owner is responsible, the Association may perform such maintenance, repair, or replacement for the Owner at the expense of the Owner. Except in an emergency situation, the Association shall give the Owner written notice of the Association’s intent to provide such necessary maintenance, repair, or replacement. The notice shall set forth with reasonable particularity the maintenance, repairs, or replacement deemed necessary. The Owner shall have ten (10) days after receipt of such notice within which to complete such maintenance, repair, or replacement, or, in the event that such maintenance, repair, or replacement is not capable of completion within a ten (10) day period, to commence such work which shall be completed within a reasonable time. If any Owner does not comply with the provisions hereof, the Association may provide any such maintenance, repair, or replacement at such Owner’s sole cost and expense, and all costs shall be an Individual Assessment levied against the Owner and a lien on such Owner’s Lot in accordance with the provisions of Article IV hereof.
Section 4. Conveyance of Common Area and Personal Property by Declarant to Association. The Declarant may convey to the Association any improved or unimproved real property, leaschold, easement, or other property interest located within or adjacent to the
rty by Declarant to Association. The Declarant may convey to the Association any improved or unimproved real property, leaschold, easement, or other property interest located within or adjacent to the Community, in which event such property shall thereafter be Common Area to be maintained by the Association for the benefit of all or a part of its members. Declarant shall not be required to 55 at the Park 12 Book9535 - Page 74 Page 17 of 48 make any improvements whatsoever to property to be conveyed and accepted pursuant to this Section. Declarant in recording any plat of the Properties may identify thereon certain areas of land as “Open Space,” “Common Area,” “Common Property,” “Common Open Space” or similar designation. Such designated properties, unless otherwise expressly provided, are expressly not dedicated to the public, but are intended to be conveyed by Declarant to the Association as Common Area. Declarant, however, reserves the right to reconfigure, in accordance with any applicable local governmental ordinances and regulations, all or any portion of such areas and all or any one or more of the Lots shown on any recorded subdivision plat at any time prior to the conveyance of such property by recording a revised subdivision plat of the property and thereby increase or decrease the area of any “Open Space,” “Common Area,” “Common Property,” or similarly designated property and/or increase or decrease the number or size of the Lots shown thereon. Any “Open Space,” “Common Area,” “Common Property,” or similarly designated property conveyed to the Association shall be conveyed subject to all easements and restrictions then of record, including all easements and restrictions herein reserved and established, and the
nated property conveyed to the Association shall be conveyed subject to all easements and restrictions then of record, including all easements and restrictions herein reserved and established, and the recording of a plat showing such areas shall not limit the rights of Declarant to further restrict such property and to grant and convey easements on, over or upon such property, prior to its conveyance to the Association, or otherwise in accordance with the terms of this Declaration. Declarant may convey to the Association any personal property to be used by the Association in connection with Common Area or any services to be provided by the Association pursuant to this Declaration and the costs of maintaining such property shall be a Common Expense.
Section 5. Obligations Regarding BMP Facilities. The BMP Facilities are the perpetual responsibility of the Association. Such BMP Facilities are the subject of the Stormwater Agreement, which is binding on the Association. The property encumbered by the Stormwater Agreement is part of the “Properties”, as such term is defined herein. The BMP Facilities must be maintained in accordance with all ordinances, policies, standards, and maintenance protocols and in accordance with the recorded Stormwater Agreement (the “City Requirements”). In particular the City’s current “Owner’s Maintenance Guide for Stormwater BMPs Constructed in the City of Durham” (available at the time of recording this Declaration at http://durhamnc.gov/DocumentCenter/View/2239 and the operation and maintenance manual prepared specifically for the BMP Facilities contain requirements that apply to the BMP Facilities.
Nothing in this Section 6 or any subsequent modifications of this Declaration may
maintenance manual prepared specifically for the BMP Facilities contain requirements that apply to the BMP Facilities.
Nothing in this Section 6 or any subsequent modifications of this Declaration may reduce the Association’s or Owners’ obligations with regard to the BMP Facilities. Such additional covenants may increase the obligations or provide for additional enforcement options.
The BMP Facilities and their locations are as follows: One (1) wet detention pond with a drainage area of 18.13 acres, a design storm surface area of 61,695 square feet and a design storm storage volume of 153,000 cubic feet.
In addition to the above obligations, the Association’s obligations with regard to the BMP Facilities include the following: (a) Inspections/Routine Maintenance. In accordance with City Requirements, the Association shall cause the BMP Facilities to be inspected 1) annually; and, 11) after major storm events that cause visual damage to a BMP Facility; and 111) upon notification from the City to inspect. The inspection shall be performed by a registered 55 at the Park 13 Book9535 - Page 75 Page 18 of 48 North Carolina Professional Engineer or a North Carolina Registered Landscape Architect certified by the City who shall document those things mandated under City Requirements.
The inspection shall occur annually during the month in which the BMP Facilities as-built certification was accepted by the City, which month may be determined through contact with the City of Durham Department of Public Works, Stormwater Division. The inspection shall be reported to the City as further described below.
(b) Repair and Reconstruction. The Association shall repair and/or reconstruct the BMP Facilities as it determines is necessary, and, at a minimum, as set forth
to the City as further described below.
(b) Repair and Reconstruction. The Association shall repair and/or reconstruct the BMP Facilities as it determines is necessary, and, at a minimum, as set forth in City Requirements or as directed by the City to allow the BMP Facilities to function for its intended purpose, and to its design capacity. The Association shall provide written reports regarding major repair or reconstruction to the City in accordance with City Requirements.
(c) Stormwater Budget Line Items & Funding. The Base Assessments payable to the Association shall include amounts for upkeep and reconstruction of the BMP Facilities which shall be included in the Base Assessments charged to Lots from the point that Base Assessments are levied upon Lots to fund Common Expenses. The Association shall maintain two (2) separate funds in its budget for the BMP Facilities. The first, the “Inspection and Maintenance Fund”, shall be for routine inspection and maintenance expenditures and shall be used for annual inspections, maintenance, and minor repairs. The funds for this purpose may be maintained as part of the Association’s general account. The second fund, the “Major Reconstruction Fund”, shall be a separate, increasing reserve fund that will build over time and provide money for major repairs to and eventual reconstruction of the BMP Facilities. The Major Reconstruction Fund shall be maintained in an account that is separate from the Association’s general account as described below. At a minimum, the Association shall, annually, earmark $3,210.00 from its collected Base Assessments for the Inspection and Maintenance Fund and $763.00 for the Major Reconstruction Fund. These minimum amounts shall be increased annually by 3% per year over the prior year’s amount. The
se Assessments for the Inspection and Maintenance Fund and $763.00 for the Major Reconstruction Fund. These minimum amounts shall be increased annually by 3% per year over the prior year’s amount. The Association may set a higher amount in its discretion, or if directed by Durham Director of Public Works after an examination of the BMP Facilities. The Association shall set the Base Assessment at a sufficient amount to fund each of the two line items in addition to the Association’s other obligations. The Association may compel payment of Base Assessments through all remedies provided in this Declaration or otherwise available under law.
(d) Assessments/Liens. Each Lot shall be subject to the obligation to pay Base Assessments to the Association for the purpose of fulfilling the Association’s obligations under this Declaration and under the Stormwater Agreement. Such Base Assessments collected in the manner set forth in this Declaration. As allowed under NCGS §47F, or successor statutes, all Base Assessments remaining unpaid for 30 days or longer shall constitute a lien on the Lot. Such lien and costs of collection may be filed and foreclosed on by the Association. In addition, the Association’s rights may, in the discretion of the City, be exercised by the City, as a third party beneficiary of the recorded Stormwater Agreement and/or as Attorney in Fact for the Association, as provided in Section 7 of the recorded Stormwater Agreement.
55 at the Park 14 Book9535 - Page 76 Page 19 of 48 Notwithstanding any contrary provisions of the Declaration of which this Section is a part, to the extent not prohibited by law, the inspection, maintenance, repair, and
Notwithstanding any contrary provisions of the Declaration of which this Section is a part, to the extent not prohibited by law, the inspection, maintenance, repair, and replacement/reconstruction of the BMP Facilities shall receive the highest priority (excluding taxes and assessments and other statutorily required expenditures) of all Association expenditures.
(f) Separate Account for Major Reconstruction Fund. Engineer’s Report. The Association shall maintain the Major Reconstruction Fund for the BMP Facilities in an account separate from the Association’s general account. The Association shall use the Major Reconstruction Fund only for major repairs and reconstruction of the BMP Facilities. No withdrawal shall be made from this fund unless the withdrawal is approved by two Association officials who shall execute any documents allowing such withdrawal. Prior to withdrawing funds from this account, the Association shall (i) obtain a written report from an engineer approved in accordance with City Requirements regarding repairs or reconstruction needed and approximate cost of such repair or reconstruction; and (ii) submit such report to the Director of the City’s Department of Public Works, and notify the Director of the repairs or reconstruction to be undertaken on the applicable BMP Facilities, the proposed date, and the amount to be withdrawn from the Major Reconstruction Fund. In the event of an emergency, withdrawal and expenditure of funds may be made after telephone notification to the Stormwater Services Division of the Department.
(g) Annual Reports to City. The Association shall provide to the City annual reports in substance and form as set forth in the City Requirements. This annual
water Services Division of the Department.
(g) Annual Reports to City. The Association shall provide to the City annual reports in substance and form as set forth in the City Requirements. This annual report shall be signed by an officer of the Association, who shall attest as to the accuracy of the information in such report. If prepared by a professional management company hired to manage the Association’s affairs, the report shall so indicate. The Association officer’s signature and attestation shall be notarized. At a minimum each report shall include: (i) the annual BMP Facilities inspections report described in subsection (a) above; (ii) a bank or account statement showing the existence of the separate Major Reconstruction Fund described in subsection (f) above and the balance in such fund as of the time of submission of the report; (111) | adescription of repairs exceeding normal maintenance that have been performed on the BMP Facilities in the past year, and the cost of such repairs; and (iv) the amount of the Base Assessment being set aside for the current year for each of the two stormwater funds — the Inspection and Maintenance Fund and the Major Reconstruction Fund.
(h) BMP Facilities to Remain with Association; Lot Owners’ Liability. To the extent not prohibited by law, the BMP Facilities shall remain the property of the Association and may not be conveyed by the Association except as otherwise provided herein. In the event the Association ceases to exist or is unable to perform its obligations under the Stormwater Agreement, all Owners, excluding the Association (if the Association is an Owner), shall be jointly and severally liable to fulfill the Association’s 55 at the Park 15 Book9535 - Page 77 Page 20 of 48
Agreement, all Owners, excluding the Association (if the Association is an Owner), shall be jointly and severally liable to fulfill the Association’s 55 at the Park 15 Book9535 - Page 77 Page 20 of 48 obligations under the Stormwater Agreement. Such Owners shall have the right of contribution from other Owners with each Owner’s pro rata share being calculated in the same manner as the Base Assessment is calculated, as provided in Article IV of this Declaration. The City may also exercise the rights described in Section 7 of the recorded Stormwater Agreement and other remedies provided by law.
(i) City Rights; Liens Against Owners. In addition to rights granted to the City by ordinance or otherwise, the City shall have the following rights, generally summarized below, and more explicitly set forth in the Stormwater Agreement referenced above: (i) Direct the Association in matters regarding the inspection, maintenance, repair, and /or reconstruction of the BMP Facilities; (ii) If the Association does not perform the work required by ordinance, by this Declaration, and by the Stormwater Agreement referenced above, do such work itself, upon 30 days’ written notice to the Association; (iii) Access the BMP Facilities for inspection, maintenance, and repair, crossing as necessary the parcel(s) on which the BMP Facilities are located and all other private and public easements that exist within the Properties subject to this Declaration; (iv) | Require reimbursement by the Association of the City’s costs in inspecting, maintaining, repairing, or reconstructing the BMP Facilities, as provided in the Stormwater Agreement referenced above; and (v) Enforce any debts owed by the Association as described in the
nspecting, maintaining, repairing, or reconstructing the BMP Facilities, as provided in the Stormwater Agreement referenced above; and (v) Enforce any debts owed by the Association as described in the Stormwater Agreement referenced above against Owners if such debts are not fully paid by the Association. The debt may be allocated to Owners as provided in the other sections of this Declaration, and may be made a lien on each Owner’s Lot, may be added to each Owner’s utility bills, and may result in foreclosure, as provided in Section 7 of the Stormwater Agreement referenced above.
(j) No Dissolution. To the extent not prohibited by law, the Association shall not enter into voluntary dissolution unless the BMP Facilities are transferred to a person or entity who has been approved by the City and has executed a stormwater agreement with the City assuming the obligations of the Association. Under the Stormwater Agreement referenced above, individual Lots and Owners shall continue to be liable for the BMP Facilities in the event the Association is dissolved without a new Stormwater Agreement between the City and a responsible party that is assuming the Association’s obligations.
(k) No Amendment. Without the prior written consent of the City, which may be given by the Durham City Manager, and notwithstanding any other provisions of this Declaration, the Association may not amend or delete this Section 6 of Article V with the exception of supplementing its provisions in a more detailed manner to better describe the Owners’ obligations regarding each other.
(1) Stormwater Agreement Supersedes. The Stormwater Agreement referenced above supersedes any limiting provisions contained elsewhere in other Articles 55 at the Park 16 Book9535 - Page 78 Page 21 of 48
) Stormwater Agreement Supersedes. The Stormwater Agreement referenced above supersedes any limiting provisions contained elsewhere in other Articles 55 at the Park 16 Book9535 - Page 78 Page 21 of 48 of this Declaration. However, such Articles may supplement the obligations of the Association as set forth in the Stormwater Agreement, and/or the obligations of and remedies against individual Owners bound by this Declaration.
ARTICLE VI.
USE RESTRICTIONS AND RULES Section 1. General. This Article sets out certain use restrictions that must be complied with by all Owners and Occupants. These use restrictions may only be amended as provided in this Declaration.
Section 2. Residential Use. Except as otherwise herein provided with respect to (i) the use of portions of the Properties as sales offices, construction offices and/or model homes and (11) the maintenance of offices or home businesses that comply with the requirements of this Section, all Lots shall be used for residential purposes exclusively, and no portion of the Properties shall be used except for residential purposes and uses ancillary thereto, including recreational, park and street purposes. Notwithstanding the foregoing restrictions, the Declarant, during Declarant’s Development Period, shall have the right to operate and maintain one or more sales offices, construction offices and model homes within the Community. In addition, notwithstanding the foregoing restrictions, an Owner may maintain an office or home business on such Owner’s Lot or in any Dwelling or other improvement located on the Lot only if: (i) such office or home business is operated by the Owner or a member of the Owner’s household residing on the Lot, or
h Owner’s Lot or in any Dwelling or other improvement located on the Lot only if: (i) such office or home business is operated by the Owner or a member of the Owner’s household residing on the Lot, or by Owner’s tenant residing on the Lot; (11) there are no displays or signs indicating that the Lot or improvement is being used other than as a residence; (iii) such office or business does not generate significant traffic or parking usage (as determined from time to time in the sole discretion of the Board) by clients, customers or other Persons; (iv) no equipment or other items related to the office or business are stored, parked or otherwise kept on such Owner’s Lot outside of the Dwelling or other enclosure approved by the Architectural Review Committee; (v) such Owner has obtained from all applicable local governmental authorities, and maintains in effect, all required approvals for such use; (vi) the activity is consistent with the residential nature of the Properties and complies with all applicable federal, state and local laws and ordinances; (vii) no person is employed in such office or home business except for the Owner or the members of the Owner’s household residing on the Lot or the Owner’s tenant residing on the Lot; and (viii) the Owner has obtained prior written approval from the Board and thereafter registers annually with the Association as long as the operation of the home business continues. As a condition to such use, the Board may require the Owner to pay any increase in the rate of insurance, trash removal, utilities or other costs for the Association or other Owners which result from such use. Garage sales, yard sales and similar activities shall be conducted only in accordance with all applicable federal, state and local laws
for the Association or other Owners which result from such use. Garage sales, yard sales and similar activities shall be conducted only in accordance with all applicable federal, state and local laws and ordinances and the rules and regulations, if any, adopted by the Board.
Section 3. Architectural Standards. No exterior construction, alteration, addition, or erection of any nature whatsoever shall be commenced or placed upon any part of the Community, except such as is installed by the Declarant, or as is approved in accordance with this Section, or as is otherwise expressly permitted herein. Except for improvements installed by the Declarant, no exterior construction, addition, erection, or alteration shall be made unless and until plans and specifications showing at least the nature, kind, shape, height, materials, and location shall have been submitted in writing to and approved by an Architectural Review Committee to be established by the Board.
55 at the Park 17 Book9535 - Page 79 Page 22 of 48 (a) The Board may employ architects, engineers, or other Persons as it deems necessary to enable the Architectural Review Committee to perform its review.
(b) The Architectural Review Committee may, from time to time, delegate any of its rights or responsibilities hereunder to one (1) or more duly licensed architects or other qualified Persons, which shall have full authority to act on behalf of the committee for all matters delegated.
(c) Written design guidelines and procedures may be promulgated for the exercise of this review, which guidelines may provide for a review fee.
(d) Until the expiration of Declarant’s Development Period, Declarant shall have the right to appoint all members of the Architectural Review Committee. Upon the
idelines may provide for a review fee.
(d) Until the expiration of Declarant’s Development Period, Declarant shall have the right to appoint all members of the Architectural Review Committee. Upon the expiration of Declarant’s Development Period or the earlier surrender in writing of such right, the Board shall appoint the members of the Architectural Review Committee.
(e) If the Architectural Review Committee fails to approve or to disapprove submitted plans and specifications within sixty (60) days after the plans and specifications have been submitted to it, approval will not be required, and this Section will be deemed to have been fully complied with. As a condition of approval under this Section, each Owner, on behalf of such Owner and such Owner’s successors-in-interest, shall assume all responsibilities for maintenance, repair, replacement, and insurance to and on any change, modification, addition, or alteration. In the discretion of the Architectural Review Committee, an Owner may be made to verify such condition of approval by a recordable written instrument acknowledged by such Owner on behalf of such Owner and such Owner’s successors-in-interest. The Architectural Review Committee shall be the sole arbiter of such plans and may withhold approval for any reason, including purely aesthetic considerations, and it shall be entitled to stop any construction commenced in violation of these restrictions. Any member of the Board or its representatives shall have the right, during reasonable hours and after reasonable notice, to enter upon any property to inspect for the purpose of ascertaining whether or not these Persons shall not be deemed guilty of trespass by reason of such entry. In addition to any other remedies available to the
any property to inspect for the purpose of ascertaining whether or not these Persons shall not be deemed guilty of trespass by reason of such entry. In addition to any other remedies available to the Association, in the event of noncompliance with this Section, the Board may, as provided in this Declaration, record in the appropriate land records a notice of violation naming the violating Owner.
(f) Plans and specifications are not approved for engineering or structural design or quality of materials, and by approving such plans and specifications neither the Architectural Review Committee, the members thereof, nor the Association assumes liability or responsibility therefor, nor for any defect in any structure constructed from such plans and specifications. Neither Declarant, the Association, the Architectural Review Committee, the Board, nor the officers, directors, members, employees, and agents of any of them shall be liable in damages to anyone submitting plans and specifications to any of them for approval, or to any owner of property affected by these restrictions by reason of mistake in judgment, negligence, or nonfeasance arising out of or in connection with the approval or disapproval or failure to approve or disapprove any such plans or specifications. Every Person who submits plans or specifications and every Owner agrees that such Person or Owner will not bring any action or suit against Declarant, the Association, the Architectural Review Committee, the Board, or the officers, directors, 55 at the Park 18 Book9535 - Page 80 Page 23 of 48 members, employees, and agents of any board, or the officers, directors, members, employees, and agents of any of them to recover any damages and hereby releases, remises,
9535 - Page 80 Page 23 of 48 members, employees, and agents of any board, or the officers, directors, members, employees, and agents of any of them to recover any damages and hereby releases, remises, quitclaims, and covenants not to sue for all claims, demands, and causes of action arising out of or in connection with any judgment, negligence, or nonfeasance and hereby waives the provisions of any law which provides that a general release does not extend to claims, demands, and causes of action not known at the time the release is given.
Section 4. Signs. No sign of any kind shall be displayed to the public view on any portion of the Properties except for signs which are approved by Declarant, during Declarant’s Development Period, and thereafter, by the Board, and any of the following: (i) signs advertising a Dwelling for sale or rent by an Owner other than Declarant, provided that only one (1) such sign may be displayed with respect to any given Dwelling that is for sale or rent, that the sign is not larger than six (6) square feet, and that any such sign advertising a Dwelling for sale or rent is displayed inside the window of the Dwelling, (ii) signs advertising any portion of the Properties for sale or rent by Declarant; (iii) signs erected by or on behalf of Declarant, during Declarant’s Development Period, and thereafter, by or on behalf of the Association identifying the subdivision name of the Properties or of a phase, section or subdivision within the Community, or the number or street address of a Lot or Dwelling, or directing Persons as to the location of certain portions of the Properties; (iv) signs erected by or on behalf of Declarant, during Declarant’s Development
r or street address of a Lot or Dwelling, or directing Persons as to the location of certain portions of the Properties; (iv) signs erected by or on behalf of Declarant, during Declarant’s Development Period, and thereafter, by or on behalf of the Association identifying any portion of the Common Area; and (v) signs required by any applicable Governmental Authority or a utility provider. All signs maintained on any portion of the Properties must comply with all applicable federal, state and local laws and ordinances.
Section 5. Parking and Vehicular Restrictions.
(a) Only automobiles, vans constructed as private passenger vehicles with permanent rear seats and side windows, passenger trucks and other vehicles manufactured and used as private passenger vehicles, may be parked within the Community overnight without the prior written consent of the Board, unless kept within an enclosed garage. In particular and without limitation, without the prior written consent of the Board, no vehicle containing commercial lettering, signs or equipment, and no truck (other than private passenger trucks), recreational vehicle, camper, trailer, aircraft, motorcycle, or vehicle other than a private passenger vehicle as specified above, may be parked or stored outside of a Dwelling overnight. No overnight parking is permitted on any streets, lawns, or areas other than driveways, garages without the consent of the Board. Provided, however, automobiles owned by governmental law enforcement agencies are expressly permitted.
The foregoing restrictions shall not be deemed to prohibit the temporary parking of commercial vehicles while making delivery to or from, or while used in connection with providing services to, the Community. All vehicles parked within the Community must be
t the temporary parking of commercial vehicles while making delivery to or from, or while used in connection with providing services to, the Community. All vehicles parked within the Community must be in good condition and repair, and no vehicle which does not contain a current license plate or which cannot operate on its own power shall be parked within the Community outside of an enclosed garage for more than 24 hours, and no major repair of any vehicle shall be made on the Properties. All-terrain vehicles, and the like are not permitted to be operated within the Community or parked overnight outside of an enclosed garage, except with the prior written consent of the Board which may be withdrawn at any time. Any motorcycle or other permitted motorized vehicle must be licensed for street use and equipped with appropriate noise muffling equipment so that the operation of same does not create an unreasonable annoyance to the residents of the Community.
55 at the Park 19 Book9535 - Page 81 Page 24 of 48 (b) The Board shall have the right and authority to make, implement and enforce such additional parking rules and regulations as it might determine from time to time necessary or appropriate, and shall have the right and authority to enforce same, including, but not limited to, the right to levy fines for violations thereof. Furthermore, the Association shall have the right and authority to have towed any vehicle parked or maintained in violation of these or subsequently-adopted parking rules and regulations, the cost of which towing and storage shall be the responsibility of the Owner of the Lot to which such vehicle is registered.
Section 6. Garages. To the extent that any Dwelling contains a garage, no garage shall
which towing and storage shall be the responsibility of the Owner of the Lot to which such vehicle is registered.
Section 6. Garages. To the extent that any Dwelling contains a garage, no garage shall be permanently enclosed so as to make such garage unusable by an automobile, and no portion of a garage originally intended for the parking of an automobile shall be converted into a living space or storage space and no garage opening shall have a screen covering without the consent of the Architectural Review Committee. All garage doors shall remain closed when vehicles or Persons are not entering or leaving the garage. The foregoing shall not include any garages used or formerly used by Declarant as an office or other area in connection with the sale of Dwellings, which are Declarant Improvements and not subject to the restrictions in this Article VI.
Section 7. Leasing. Except as otherwise herein provided, Lots may be leased for residential purposes. All leases shall have a minimum term of at least twelve (12) months. All leases shall require, without limitation, that the tenant acknowledge receipt of a copy of the Declaration, Bylaws, use restrictions, and rules and regulations of the Association. The lease shall also obligate the tenant to comply with the foregoing and shall provide that in the event of noncompliance, the Board, in addition to any other remedies available to it, may evict the tenant on behalf of the Owner and specifically assess all costs associated therewith against the Owner and the Owner’s Lot in accordance with the provisions of Article IV.
Section 8. Occupants Bound. All provisions of the Declaration, Bylaws, and of any rules and regulations, use restrictions, or design guidelines promulgated pursuant thereto which
isions of Article IV.
Section 8. Occupants Bound. All provisions of the Declaration, Bylaws, and of any rules and regulations, use restrictions, or design guidelines promulgated pursuant thereto which govern the conduct of Owners and which provide for sanctions against Owners shall also apply to all Occupants even though Occupants are not specifically mentioned. Fines may be levied against Owners or Occupants. Ifa fine is first levied against an Occupant and is not timely paid, the fine may then be levied and assessed against the Owner and secured with a lien against such Owner’s Lot in accordance with the provisions of Article IV.
Section 9. Animals and Pets. No animals, livestock, or poultry of any kind shall be raised, bred, or kept on any portion of the Properties, except that dogs, cats, or other usual and common household pets, may be kept by the Owner(s) or Occupants of Lots, so long as such pets are kept in compliance with requirement of law applicable to such animal and any rules and regulations promulgated in accordance with the authority herein conferred on Declarant or the Association. No pets shall be kept, bred or maintained for any commercial purpose. All pet animals must be secured by a leash or lead and under the control of a responsible person and obedient to that person’s command at any time they are permitted outside a residence on the Lot or Common Area. Each Owner shall be absolutely liable to each and all remaining Owners, their families, guests, and invitees and to the Association, for any and all damage to person or property caused by any such pet brought upon or kept on the Properties by such Owner or by such Owner’s family, guests, or invitees. The Board of Directors, with the approval of Declarant during
on or property caused by any such pet brought upon or kept on the Properties by such Owner or by such Owner’s family, guests, or invitees. The Board of Directors, with the approval of Declarant during Declarant’s Development Period, shall have the power to adopt, publish, amend and enforce rules and regulations governing the keeping of pets on the Properties and to establish penalties for the 55 at the Park 20 Book9535 - Page 82 Page 25 of 48 infraction thereof, to the extent such rules and regulations do not conflict with this provision. Such rules and regulations may place reasonable limits on the number and/or size of pets that may be kept by the Owner(s) and Occupants of each Lot.
Section 10. Nuisance. It shall be the responsibility of each Owner and Occupant to prevent the development of any unclean, unhealthy, unsightly, or unkempt condition on such Owner’s or Occupant’s property. No property within the Community shall be used, in whole or in part, for the storage of any property or thing that will cause such Lot to appear to be in an unclean or untidy condition or that will be obnoxious to the eye; nor shall any substance, thing, or material be kept that will emit foul or obnoxious odors or that will cause any noise or other condition that will or might disturb the peace, quiet, safety, comfort, or serenity of the Occupants of surrounding property. No noxious or offensive activity shall be carried on within the Community, nor shall anything be done tending to cause embarrassment, discomfort, annoyance, or nuisance to any Person using any property within the Community. There shall not be maintained any plants or animals or device or thing of any sort whose activities or existence in any way is noxious,
nuisance to any Person using any property within the Community. There shall not be maintained any plants or animals or device or thing of any sort whose activities or existence in any way is noxious, dangerous, unsightly, unpleasant, or of a nature as may diminish or destroy the enjoyment of the Community. Without limiting the generality of the foregoing, no speaker, horn, whistle, siren, bell, amplifier, or other sound device, except such devices as may be used exclusively for security purposes or as approved by the Architectural Review Committee, shall be located, installed, or maintained upon the exterior of any Lot unless required by law.
Section 11. Unsightly or Unkempt Conditions. The pursuit of hobbies or other activities, including, without limitation, the assembly and disassembly of motor vehicles and other mechanical devices, which might tend to cause disorderly, unsightly, or unkempt conditions, shall not be pursued or undertaken in any part of the Community.
Section 12. Antennas. No satellite dishes, antennas, and similar devices for the transmission of television, radio, satellite, or other signals of any kind shall be placed, allowed, or maintained within the Community, except that Declarant and the Association shall have the right, without the obligation, to erect or install and maintain any such apparatus for the benefit of all or a portion of the Community, and except that (1) satellite dishes designed to receive direct broadcast satellite service which are one meter or less in diameter; (ii) satellite dishes designed to receive video programming services via multi-point distribution services which are one meter or less in diameter or diagonal measurement; or (iii) antennas designed to receive television broadcast
to receive video programming services via multi-point distribution services which are one meter or less in diameter or diagonal measurement; or (iii) antennas designed to receive television broadcast signals ((1), (1), and (iii), collectively, “Permitted Devices”) shall be permitted, provided that any such Permitted Device is placed in the least conspicuous location on the Lot (generally being the rear of the Lot) at which an acceptable quality signal can be received and is not visible from the street, Common Area, or neighboring property or is screened from the view of adjacent Lots in a manner consistent with the Community Standard and any design guidelines. Owners shall remove any inoperable or damaged Permitted Device or any Permitted Device not in use due to the Owner’s discontinuation of the applicable telecommunications service within 30 days after such device is damaged, becomes inoperable, or the applicable telecommunications service is discontinued.
Section 13. Tree Removal. No trees shall be removed without the prior written consent of the Architectural Review Committee.
Section 14. Drainage. Catch basins and drainage areas are for the purpose of natural flow of water only. No obstructions or debris shall be placed in these areas. No Owner or 55 at the Park 21 Book9535 - Page 83 Page 26 of 48 Occupant may alter, obstruct, or re-channel the drainage flows after location and installation of drainage swales, storm sewers, or storm drains, the right to alter same being expressly reserved to Declarant.
Section 15. Sight Distance at Intersections. All property located at street intersections shall be landscaped so as to permit safe sight across the street corners. No fence, wall, hedge, or
Declarant.
Section 15. Sight Distance at Intersections. All property located at street intersections shall be landscaped so as to permit safe sight across the street corners. No fence, wall, hedge, or shrub planting shall be placed or permitted to remain where it would create a traffic or sight problem.
Section 16. Garbage Cans, Woodpiles, Trash Collection, Etc. All garbage cans, woodpiles, and other similar items shall be stored completely enclosed within the garage that is a part of the Dwelling located on the Lot or as long as such items are screened so as to be concealed from view of neighboring streets and property, located in the rear or side yard of the Lot. All Owners who keep a trash or recycling container in the rear of a Lot will not have access rights over any other Lots for the purpose of moving such container to the designated trash collection area for the Community. There will be no curbside pick-up for trash or recycling materials. All rubbish, trash, and garbage shall be regularly removed and shall not be allowed to accumulate. Trash, garbage, debris, or other waste matter of any kind may not be burned within the Community except that Declarant may maintain a “burn pit” during development and construction of the Community.
Section 17. Subdivision of Lot. No Lot shall be subdivided or its boundary lines changed except with the prior written approval of the Architectural Review Committee. Declarant, however, hereby expressly reserves the right to replat any Lot or Lots owned by Declarant. Any such division, boundary line change, or replatting shall not be in violation of the applicable subdivision and zoning regulations. Declarant’s right to replat any Lot shall include the right to
t. Any such division, boundary line change, or replatting shall not be in violation of the applicable subdivision and zoning regulations. Declarant’s right to replat any Lot shall include the right to change the configuration of streets and otherwise make changes on the final plat for the Community as to how the streets and common areas in the Community are laid out.
Section 18. Guns. The use of firearms in the Community is prohibited. The term “firearms” includes rifles, pistols, “BB” guns, pellet guns, and small firearms of all types.
Section 19. Fences. No fence or fencing type barrier of any kind shall be placed, erected, allowed, or maintained upon any Lot without the prior written consent of the Architectural Review Committee. Notwithstanding the foregoing, the Declarant shall have the right to erect fencing of any type, at any location, on any Lot during the period that such Lot is being used by Declarant as a model home. The Association shall have the right to erect fencing of any type considered appropriate or desirable by the Board at any location on the Common Area.
Section 20. Utility Lines. No overhead utility lines, including lines for cable television, shall be permitted within the Community, except for temporary lines as required during construction, and lines installed by or at the request of Declarant.
Section 21. Air Conditioning Units. No window air conditioning units may be installed.
Section 22. Lighting. Except as may be permitted by the Architectural Review Committee, exterior lighting visible from the street shall not be permitted except for approved lighting as originally installed on a Lot.
55 at the Park 22 Book9535 - Page 84 Page 27 of 48 Section 23. Artificial Vegetation, Exterior Sculpture, and Similar Items. No
permitted except for approved lighting as originally installed on a Lot.
55 at the Park 22 Book9535 - Page 84 Page 27 of 48 Section 23. Artificial Vegetation, Exterior Sculpture, and Similar Items. No artificial vegetation shall be permitted on the exterior of any property. Exterior sculpture, fountains, flags, and similar items must be approved by the Architectural Review Committee.
Notwithstanding anything herein to the contrary, however, the display of the American Flag shall not be prohibited, but shall be subject to the reasonable regulation of the Association as to the time, place, manner, location and size of any such display, including, without limitation, the requirement that any display of the American Flag be in compliance with Federal Laws relating to the same.
Section 24. Energy Conservation Equipment. No solar energy collector panels or attendant hardware or other energy conservation equipment shall be constructed or installed unless they are an integral and harmonious part of the architectural design of a structure, as determined in the sole discretion of the Architectural Review Committee.
Section 25. Gardens and Play Equipment. No vegetable garden or play equipment shall be erected on any Lot without the prior written consent of the Architectural Review Committee, and any such items must be located between the rear Dwelling line and the rear lot line. Permanently mounted basketball goals are prohibited. When not in use any temporary basketball goal shall be stored fully enclosed in a garage or otherwise fully screened from the view of adjacent Lots or any street within the Community, utilizing screening that has been erected in accordance with the provisions of this Declaration requiring Architectural Review Committee review and approval.
t Lots or any street within the Community, utilizing screening that has been erected in accordance with the provisions of this Declaration requiring Architectural Review Committee review and approval.
Section 26. Mailboxes. Mailboxes are not permitted on any Lots. Mail will be delivered to the mail kiosk(s) located within the Community.
Section 27. Exteriors. Any change to the exterior color of any improvement located on a Lot, including, without limitation, the Dwelling, must be approved by the Architectural Review Committee.
Section 28. Clothesline. No exterior clotheslines of any type shall be permitted upon any Lot.
Section 29. Exterior Security Devices. No exterior security devices, including, without limitation, window bars, shall be permitted on any residence or Lot. Signs less than 6” by 6” placed on the Lot or the exterior of the residence stating that such residence is protected by a security system shall not be deemed to constitute an exterior security device.
Section 30. Entry Features. Owners shall not alter, remove, or add improvements to any entry features constructed by the Declarant on any Lot, or any part of any easement area associated therewith without the prior written consent of the Architectural Review Committee.
Section 31. Storage Sheds, Garages and Other Improvements. Construction, installation, or placement of a storage shed, tree house, play house, detached garage, or a building separate from the main Dwelling on the Lot is not permitted on any Lot. No space within any garage may be converted to living space, but will remain as required parking.
Notwithstanding anything contained in this Declaration to the contrary, no vegetable gardens, hammocks, statuary, swing sets or similar play equipment, or similar athletic equipment,
required parking.
Notwithstanding anything contained in this Declaration to the contrary, no vegetable gardens, hammocks, statuary, swing sets or similar play equipment, or similar athletic equipment, boats or boating equipment, pools, fences, clothes drying equipment, dog houses, dog runs or other pet enclosures, signs, retaining walls, or any other structure or thing which, in the sole discretion 55 at the Park 23 Book9535 - Page 85 Page 28 of 48 of the Board or its designee, tends to detract from the appearance of the Community, shall be permitted on any Lot without the prior written consent of the Architecture Review Committee or its designee.
Section 32. Sewer Systems. As long as reasonably adequate sanitary sewer service is supplied to a Lot by applicable governmental authorities, no private sewage system shall be permitted on that Lot.
Section 33. Wetlands. Portions of the Properties may have been determined to meet the requirements for designation as a regulatory wetland. Notwithstanding anything to the contrary that may appear herein or in any other restrictive covenants applicable to such portions of the Properties, any subsequent fill or alteration of any portion of the Properties that has been determined to be a regulatory wetland under applicable laws of the Governmental Authorities shall conform to the requirements of applicable wetland rules adopted by the United States or the State of North Carolina and in force at the time of the proposed alteration. The intent of this Section is to prevent additional wetland fill except as allowed under applicable federal, state and local laws and ordinances, so the Owner of any such portion of the Properties should not assume that a future
s to prevent additional wetland fill except as allowed under applicable federal, state and local laws and ordinances, so the Owner of any such portion of the Properties should not assume that a future application for fill or alteration of a wetland will be approved. The Owner of any portion of the Properties subject to any such future application shall report the name of the development (in this case, 55 at the Park, together with the name of the particular phase or section within the Properties, if any, in any application pertaining to wetland rules. The provisions of this Section are intended to ensure continued compliance with wetland rules adopted by the United States, the State of North Carolina, Durham County, or the City of Durham, and this covenant may be enforced by the United States, the State of North Carolina, Durham County, or the City of Durham. The provisions of this Section shall run with the Properties and be binding on all Owners of any part or all of the Properties and all Persons claiming under them.
Section 34. | Swimming Pools. No swimming pools, spas, or the like, shall be permitted on any Lot, except that small, inflatable wading pools shall be permitted, as long as any wading pool is put away at night inside a Dwelling or garage.
Section 35. Rules and Regulations. The Association shall have the exclusive right to establish the rules and regulations pursuant to which Owners and Occupants of the Lots may be entitled to use the Common Area and/or to establish other restrictions concerning the governance of the Community. Pursuant to such rule making authority, the Association may promulgate rules and regulations concerning pets and pet ownership as expressed in Section 9 of this Article and
overnance of the Community. Pursuant to such rule making authority, the Association may promulgate rules and regulations concerning pets and pet ownership as expressed in Section 9 of this Article and parking and traffic flow as expressed in Section 5 of this Article. In addition, provided that at least a majority of the Directors that are also Owners of a Lot also approve, the Association may promulgate rules and regulations that apply exclusively to the Lots.
Section 36. Retaining Walls. If any portion of a retaining wall is located within the boundaries of a Lot, the Owner of such Lot is prohibited from installing any improvements or performing any land disturbing activities on the Lot which may damage, weaken, or compromise the structural integrity of the retaining wall, or would obstruct access to such retaining wall, without the prior written consent of the Committee, and the Committee may require that any such Owner seeking to make any such improvements provide an affirmative recommendation of the proposed improvements from a licensed professional engineer selected by the Committee. Such prohibited activities include, but are not limited to, excavation, digging, and storage of heavy construction materials or supplies.
55 at the Park 24 Book9535 - Page 86 Page 29 of 48 Section 37. Certain Rights of Declarant. The provisions, restrictions, terms and conditions of this Article VI shall not apply to the activities or operations of Declarant or to any improvements constructed or to be constructed by Declarant.
ARTICLE VII.
INSURANCE AND CASUALTY LOSSES Section 1. Insurance on Common Area. The Board of Directors or the duly authorized agent of the Association shall have the authority to and shall obtain insurance for all
INSURANCE AND CASUALTY LOSSES Section 1. Insurance on Common Area. The Board of Directors or the duly authorized agent of the Association shall have the authority to and shall obtain insurance for all insurable improvements owned by the Association whether or not located on the Common Area.
This insurance shall provide, at a minimum, fire and extended coverage, including vandalism and malicious mischief, and shall be in an amount sufficient to cover the full replacement cost of any repair or reconstruction in the event of damage or destruction from any such hazard. Alternatively, the Board may purchase “all-risk” coverage in like amounts. Such insurance may, in the discretion of the Board, include coverage for personal property owned by the Association.
Section 2. Liability Insurance. The Board shall obtain a general commercial liability policy applicable to the Common Area covering the Association and its members and until Declarant’s ownership of any portion of the Properties ceases, naming Declarant as an additional named insured for all damage or injury caused by the negligence of the Association or any of its members or agents, and, if reasonably available, directors’ and officers’ liability insurance. The public liability policy shall have a combined single limit of at least one million dollars ($1,000,000.00). If available, the Board is authorized to obtain directors’ and officers’ liability insurance coverage.
Section 3. Declarant. The Board is authorized to obtain the insurance coverage required hereunder through the Declarant and to reimburse Declarant for the cost thereof. The Board shall not be required to comply with the provisions of this Section if the Board has contracted for or otherwise arranged to obtain the required insurance coverage through the
cost thereof. The Board shall not be required to comply with the provisions of this Section if the Board has contracted for or otherwise arranged to obtain the required insurance coverage through the Declarant.
Section 4. Premiums. Premiums for all insurance shall be Common Expenses of the Association. The policies may contain a reasonable deductible, and the amount thereof shall not be subtracted from the face amount of the policy in determining whether the insurance at least equals the full replacement cost.
Section 5. Miscellaneous. All such insurance coverage obtained by the Board of Directors shall be written in the name of the Association, as trustee for the respective benefited parties, as further identified below. Such insurance shall comply with these provisions: (a) All policies shall be written with a company authorized to do business in North Carolina.
(b) Exclusive authority to settle losses under policies obtained by the Association shall be vested in the Association’s Board of Directors; provided, however, no Mortgagee having an interest in such losses may be prohibited from participating in the settlement negotiations, if any, related thereto.
55 at the Park 25 Book9535 - Page 87 Page 30 of 48 (c) In no event shall the insurance coverage obtained and maintained by the Association be brought into contribution with insurance purchased by individual Owners, Occupants, or their Mortgagees, and the insurance carried by the Association shall be primary.
(d) All casualty insurance policies shall have an inflation guard endorsement and an agreed amount endorsement if these are reasonably available and all insurance policies shall be reviewed annually.
(e) The Association’s Board of Directors shall be required to make every
ement and an agreed amount endorsement if these are reasonably available and all insurance policies shall be reviewed annually.
(e) The Association’s Board of Directors shall be required to make every reasonable effort to secure insurance policies that will provide for the following: (1) A waiver of subrogation by the insurer as to any claims against the Association’s Board of Directors, its manager, the Owners and their respective tenants, servants, agents, and guests; (2) A waiver by the insurer of its rights to repair and reconstruct instead of paying cash; (3) That no policy may be canceled, invalidated, or suspended on account of any one or more individual Owners; (4) That no policy may be canceled, subjected to nonrenewal, invalidated, or suspended on account of any defect or the conduct of any director, officer, or employee of the Association or its duly authorized manager without prior demand in writing delivered to the Association to cure the defect or to cease the conduct and the allowance of a reasonable time thereafter within which a cure may be effected by the Association, its manager, any Owner or Mortgagee; (5) That any “other insurance” clause in any policy exclude individual Owners’ policies from consideration; and (6) That no policy may be canceled, subjected to nonrenewal, or substantially modified without at least thirty (30) days prior written notice to the Association.
(f) Worker’s Compensation Insurance; Fidelity Bonds. In addition to the other insurance required by this Section, the Board shall obtain worker’s compensation insurance, if and to the extent necessary to satisfy the requirements of applicable laws, and a fidelity bond or bonds on directors, officers, employees, and other persons handling or
r’s compensation insurance, if and to the extent necessary to satisfy the requirements of applicable laws, and a fidelity bond or bonds on directors, officers, employees, and other persons handling or responsible for the Association’s funds, if reasonably available. If obtained, the amount of fidelity coverage shall be determined in the three (3) months’ Assessments plus reserves on hand. Bonds shall contain a waiver of all defenses based upon the exclusion of persons serving without compensation and may not be canceled, subjected to nonrenewal, or substantially modified without at least thirty (30) days prior written notice to the Association.
55 at the Park 26 Book9535 - Page 88 Page 31 of 48 Section 6. Damage and Destruction -- Insured by Association.
(a) In General. Immediately after damage or destruction by fire or other casualty to all or any portion of any improvement covered by insurance written in the name of the Association, the Board or its duly authorized agent shall proceed with the filing and adjustment of all claims arising under such insurance and obtain reliable and detailed estimates of the cost of repair or reconstruction of the damaged or destroyed property.
Repair or reconstruction, as used in this Article, means repairing or restoring the property to substantially the same condition and location that existed prior to the fire or other casualty, allowing for any changes or improvements necessitated by changes in applicable building codes. The Board shall have the enforcement powers specified in this Declaration necessary to enforce this provision.
(b) Repair and Reconstruction. Any damage or destruction to property covered by insurance written in the name of the Association shall be repaired or reconstructed
necessary to enforce this provision.
(b) Repair and Reconstruction. Any damage or destruction to property covered by insurance written in the name of the Association shall be repaired or reconstructed unless, within sixty (60) days after the casualty, at least eighty percent (80%) of the Owners otherwise agree; provided, however, during Declarant’s Development Period, Declarant must also agree. If for any reason either the amount of the insurance proceeds to be paid as a result of such damage or destruction, or reliable and detailed estimates of the cost of repair or reconstruction, or both, are not made available to the Association within such period, then the period shall be extended until such information shall be made available; provided, however, such extension shall not exceed sixty (60) days. No Mortgagee shall have the right to participate in the determination of whether damage or destruction shall be repaired or reconstructed.
(c) If the damage or destruction for which the insurance proceeds are paid is to be repaired or reconstructed and such proceeds are not sufficient to defray the cost thereof, the Board shall, without the necessity of a vote of the Association’s members, levy a Special Assessment against all Owners in proportion to the number of Lots owned by such Owners. Additional Assessments may be made in like manner at any time during or following the completion of any repair or reconstruction. If the funds available from insurance exceed the costs of repair or reconstruction or if the improvements are not repaired or reconstructed, such excess shall be deposited to the benefit of the Association.
In the event that it is determined by the Association in the manner described above
he improvements are not repaired or reconstructed, such excess shall be deposited to the benefit of the Association.
In the event that it is determined by the Association in the manner described above that the damage or destruction shall not be repaired or reconstructed and no alternative improvements are authorized, then and in that event the property shall be restored to its natural state and maintained as an undeveloped portion of the Community by the Association in a neat and attractive condition.
Section 7. Insurance on the Dwellings.
(a) Each Owner shall maintain a property damage and casualty insurance or “hazard” insurance policy, with full replacement coverage, to protect against casualty damage to their Dwelling. Such property damage and casualty insurance policies shall contain an endorsement affording thirty (30) days prior notice to the Association by certified mail in the event of cancellation, non-renewal, modification or reduction in coverage. Such policies shall also be in such form and comply with such requirements that may be established by the Board from time to time to address changes or trends in the 55 at the Park 27 Book9535 - Page 89 Page 32 of 48 insurance industry, changes in the number, size and type of Dwellings or any other matter that affects or is affected by the property damage and casualty insurance coverage maintained on the Dwellings.
(b) Each Owner shall provide a copy of such Owner’s current homeowners property damage and casualty insurance policy, all replacements and renewals thereof, to the Association. If an Owner fails or refuses to provide the Association with a copy of such insurance policy (or renewal or other reasonable evidence of the availability of current
newals thereof, to the Association. If an Owner fails or refuses to provide the Association with a copy of such insurance policy (or renewal or other reasonable evidence of the availability of current property damage and casualty insurance coverage on the applicable Dwelling) within thirty (30) days following the Association’s written notice to provide such insurance policy or evidence, the Association shall have the right to obtain and purchase such insurance as required by this section on behalf of such Owner. In such event, the costs incurred by the Association procuring such insurance, shall be assessed against the applicable Owner.
(c) The Association shall have the right (but not the obligation), at its sole option, to procure or maintain a “blanket” property damage and casualty or “hazard” insurance policy on all of the Dwellings (or a portion or portions of all of the Dwellings) for the purpose of providing additional protection against casualty damage to multiple Dwellings, which blanket insurance (if any) shall be secondary to the insurance maintained by the Owners on the Dwellings.
(d) The provisions of this Section 7 shall not apply to any Dwellings owned by Declarant, which Declarant shall insure under Declarant’s corporate insurance policy (or policies).
Section 8. Damage and Destruction to Improvements Located on a Lot. The damage or destruction by fire or other casualty to all or any portion of any improvement on a Lot shall be repaired by the Owner thereof within seventy-five (75) days after such damage or destruction or, where repairs cannot be completed within seventy-five (75) days, they shall be commenced within such period and shall be completed within a reasonable time thereafter. Any
ch damage or destruction or, where repairs cannot be completed within seventy-five (75) days, they shall be commenced within such period and shall be completed within a reasonable time thereafter. Any such reconstruction shall be subject to all of the requirements of this Declaration concerning architectural review and control. No Owner of a Lot may elect not to rebuild following a casualty without the prior written consent of Declarant during the Declarant Control Period, or the Board following the expiration of the Declarant Control Period, which consent may be withheld or denied in the sole and absolute discretion of Declarant (or the Board, as applicable).
ARTICLE VIII.
CONDEMNATION In the event of a taking by eminent domain of any portion of the Common Area on which improvements have been constructed, then, unless within sixty (60) days after such taking, at least eighty percent (80%) of the Owners shall otherwise agree, the Association shall restore or replace such improvements so taken on the remaining land included in the Common Area to the extent lands are available therefor. The provisions of this Declaration applicable to Common Area improvements damage, shall govern replacement or restoration and the actions to be taken in the event that the improvements are not restored or replaced.
55 at the Park 28 Book9535 - Page 90 Page 33 of 48 ARTICLE IX.
ANNEXATION OF ADDITIONAL PROPERTY Section 1. Unilateral Annexation By Declarant.
(a) The Declarant shall have the unilateral right, privilege, and option from time to time until ten (10) years after the recording of this Declaration to subject to the provisions of this Declaration any property which is adjacent to any portion of the Properties. For the
from time to time until ten (10) years after the recording of this Declaration to subject to the provisions of this Declaration any property which is adjacent to any portion of the Properties. For the purpose of determining whether property is “adjacent,” the rights of way of public or private roads or utilities, as well as rivers and streams, and the like shall be deemed not to separate otherwise adjacent property. Annexation may be accomplished by filing for record, in the county in which the property to be annexed is located, an Annexation Declaration describing the property being subjected. Any such annexation shall be effective upon the filing for record of such Annexation Declaration unless otherwise provided therein. Declarant shall have the right, in connection with the annexation of other property, to modify the terms of this Declaration as it may apply to the annexed property, as long as covenants applicable to the real property previously subjected to this Declaration are not changed and as long as rights of existing Owners are not adversely affected.
(b) The rights reserved unto Declarant to subject additional land to the Declaration shall not impose any obligation upon Declarant to subject any of such additional land to this Declaration or the jurisdiction of the Association. If such additional land is not subjected to this Declaration, Declarant’s reserved rights shall not impose any obligation on Declarant to impose any covenants and restrictions similar to those contained herein upon such additional land nor shall such rights in any manner limit or restrict the use to which such additional land may be put by Declarant or any subsequent owner thereof, whether such uses are consistent with the covenants and restrictions imposed hereby or not.
t or restrict the use to which such additional land may be put by Declarant or any subsequent owner thereof, whether such uses are consistent with the covenants and restrictions imposed hereby or not.
Section 2. Other Annexation. Subject to the consent of the owner(s) thereof and the consent of the Declarant (during Declarant’s Development Period), upon the affirmative vote or written consent, or any combination thereof, of the Owners of at least two-thirds (2/3) of the Lots, the Association may annex real property to the provisions of this Declaration describing the property to be annexed and filed for recording in the land records of the county in which the Community is located. An Annexation Declaration shall be signed by the President of the Association whose signature shall be attested by the Secretary of the Association, and any such annexation shall be effective only upon the filing for record of such Annexation Declaration, unless a later effective date is provided therein.
ARTICLE X.
EASEMENTS Section 1. Easements for Encroachment and Overhang. There shall be reciprocal appurtenant easements for encroachment and overhang as between each Lot and such portion or portions of the Common Area adjacent thereto or as between adjacent Lots due to the unintentional placement or settling or shifting of the improvements constructed, reconstructed, or altered thereon (in accordance with the terms of this Declaration) to a distance of not more than five (5) feet, as measured from any point on the common boundary between each Lot and the adjacent portion of the Common Area or as between adjacent Lots, as the case may be, along a line perpendicular to 55 at the Park 29 Book9535 - Page 91 Page 34 of 48
boundary between each Lot and the adjacent portion of the Common Area or as between adjacent Lots, as the case may be, along a line perpendicular to 55 at the Park 29 Book9535 - Page 91 Page 34 of 48 such boundary at such point. In no event shall an easement for encroachment exist if such encroachment occurred due to willful conduct on the part of an Owner, Occupant, or the Association.
Section 2. Easements for Use and Enjoyment.
(a) Every Owner of a Lot shall have a right and easement of ingress and egress, use and enjoyment in and to the Common Area which shall be appurtenant to and shall pass with the title to each Lot, subject to the following provisions: 55 at the Park (1) The right of the Association to charge reasonable admission and other fees for the use of any portion of the Common Area, to limit the number of guests of Owners and tenants who may use the Common Area, and to provide for the exclusive use and enjoyment of specific portions thereof at certain designated times by an Owner, and such Owner’s family, tenants, guests, and invitees; (2) The right of the Association to suspend the voting rights of an Owner and the right of an Owner to use the recreational facilities available for use by the Community, if any, for any period during which any Assessment against such Owner’s Lot which is hereby provided for remains unpaid; and, for a reasonable period of time for an infraction of the Declaration, Bylaws, or rules and regulations; (3) The right of the Association to borrow money for the purpose of improving the Common Area, or any portion thereof, or for construction, repairing, or improving any facilities located or to be located thereon, and to give as security for the payment of any such loan a Mortgage conveying all or any portion of the
f, or for construction, repairing, or improving any facilities located or to be located thereon, and to give as security for the payment of any such loan a Mortgage conveying all or any portion of the Common Area; provided that, the lien and encumbrance of any such Mortgage given by the Association shall be subject and subordinate to any rights, interests, options, easements, and privileges herein reserved or established for the benefit of Declarant, or any Lot or Owner, or the holder of any Mortgage, irrespective of when executed, given by Declarant or any Owner encumbering any Lot or other property located within the Community. Any such Mortgage on the Common Area shall be subject to approval by the Owners entitled to cast at least eighty percent (80%) of the votes of the Association and by the Declarant during Declarant’s Development Period. Any provision in this Declaration or in any such Mortgage given by the Association to the contrary notwithstanding, the exercise of any rights therein by the holder thereof in the event of a default thereunder shall not cancel or terminate any rights, easements, or privileges herein reserved or established for the benefit of Declarant, or any Lot or Owner, or the holder of any Mortgage, irrespective of when executed, given by Declarant or any Owner encumbering any Lot or other property located within the Community; (4) The right of the Association to dedicate or grant licenses, permits, or easements over, under, and through the Common Area to governmental entities for public purposes and to other Persons for purposes reasonably necessary or useful for the proper maintenance of the Community; 30 Book9535 - Page 92 Page 35 of 48 (5) The right of the Association, acting through the Board without
Persons for purposes reasonably necessary or useful for the proper maintenance of the Community; 30 Book9535 - Page 92 Page 35 of 48 (5) The right of the Association, acting through the Board without Member, Mortgagee or agency approvals, to dedicate or transfer non-exclusive easements on, over and upon all or any part of the Common Area which are not inconsistent with and do not unreasonably interfere with the intended use of the Common Area and otherwise for such purposes and subject to such conditions as may be agreed to by the Association’s Board; provided, however, no such dedication or transfer shall be effective unless it is approved by Declarant during Declarant’s Development Period and unless an instrument executed on behalf of the Association by its duly authorized officers, agreeing to such dedication or transfer, has been recorded in the Registry of Deeds for the County in which the Community is located; (6) The right of the Association to dedicate or transfer any real property interest in all or any portion of the Common Area; provided, however, such dedication or transfer shall not be effective unless an instrument agreeing to such dedication or transfer has been approved in writing by the Owners entitled to cast at least eighty percent (80%) of the votes of the Association, by Declarant during Declarant’s Development Period, and, further provided that no such dedication or transfer shall interfere with or obstruct utility service to, or ingress, egress and regress to or from, the Lots or any remaining Common Area or cause any Lot or any remaining Common Area to fail to comply with applicable laws, regulations or ordinances; (7) The right of the Association, acting through the Board, to impose
ining Common Area or cause any Lot or any remaining Common Area to fail to comply with applicable laws, regulations or ordinances; (7) The right of the Association, acting through the Board, to impose rules and regulations for the use and enjoyment of the Common Area and improvements thereon, which regulations may further restrict the use of the Common Area, and specifically including the right to establish rules and regulations concerning pets and pet ownership and parking and vehicular traffic flow on and along the streets and roadways, whether public or private, within or abutting the Community, which rules and regulations may restrict or prohibit onstreet parking and may be enforced by towing at the expense of the vehicle’s owner, by reasonable fine levied against the vehicle’s owner and/or any Owner of a Lot to which such violation reasonably may be attributed, or by any other reasonable method of enforcement established by the Association’s Board; and (8) The easements, conditions and restrictions herein reserved and established for the benefit of the Declarant, the Association and others.
(b) Delegation. Any Owner may delegate such Owner’s right of use and enjoyment in and to the Common Area and facilities located thereon to the members of such Owner’s family and to such Owner’s tenants and guests and shall be deemed to have made a delegation of all such rights to the Occupants of such Owner’s Lot, if leased.
Section 3. Easements for Access, Utilities and Other Purposes. There is hereby reserved and established in favor of the Declarant and the Association blanket non-exclusive easements upon, across, above, and under all property within the Community, including all Lots,
e is hereby reserved and established in favor of the Declarant and the Association blanket non-exclusive easements upon, across, above, and under all property within the Community, including all Lots, for access, ingress, egress, installation, repairing, replacing, and maintaining all utilities serving all or any portion of the Community or any portion of the additional property that may be annexed pursuant to the provisions of Article [X, Section | hereof (whether or not such additional property 55 at the Park 31 Book9535 - Page 93 Page 36 of 48 is added to the Community), and for such other purposes that are not inconsistent with and do not unreasonably interfere with the intended use of such property. This easement shall include, without limitation, access, gas, water, sanitary sewer, telephone, electricity, cable television, security, as well as storm drainage, irrigation, and any other service or system which the Declarant or the Association might decide to have installed to service the Community or any portion of the additional property that may be annexed pursuant to the provisions of Article IX, Section 1 hereof (whether or not such additional property is added to the Community). It shall be expressly permissible for the Declarant, the Association, or the designee of either, as the case may be, to install, repair, replace, and maintain or to authorize the installation, repairing, replacing, and maintaining of such wires, conduits, pipes, cables, and other equipment related to the providing of any such access, utility or service. Should any party furnishing or receiving any such utility or service request a specific license or easement by separate recordable document, the Declarant or
ng of any such access, utility or service. Should any party furnishing or receiving any such utility or service request a specific license or easement by separate recordable document, the Declarant or the Board, as the case may be, shall have the right to grant such easement. Notwithstanding the foregoing, the Declarant shall have the right to grant or consent to the granting by the Association of any such easement on, over, or upon the Common Area that is consistent with the plan of development for the Community and the Association shall be obligated to sign any plats, deeds, or other instruments or forms necessary to accomplish any of the actions that Declarant is permitted to take pursuant to this Section 3.
Section 4. Easement for Drainage. Declarant hereby reserves for itself, during Declarant’s Development Period, and establishes in favor of the Association a perpetual easement across the Community for the purpose of altering drainage and water flow across the Community.
This right shall include, but is not limited to, altering swales, installing drains, drainage ditches, pipes, inlets, headwalls, and altering channeling, or piping water flow across any Lot or any property in the Community. Rights exercised pursuant to this reserved easement shall be exercised with a minimum of interference to the quiet enjoyment of affected property, reasonable steps shall be taken to protect such property, and damage shall be repaired by the Person causing the damage at such Person’s sole expense.
Section 5. Easement for Entry. In addition to the other rights reserved and established in favor of Declarant and the Association, the Declarant and the Association each shall have the right (but not the obligation) to enter upon any property or Lot within the Community for
d established in favor of Declarant and the Association, the Declarant and the Association each shall have the right (but not the obligation) to enter upon any property or Lot within the Community for emergency, security, and safety reasons and to inspect any construction or proposed construction activity on such Lot. This right may be exercised by the Declarant, the Association their respective designee, any officer of the Board, and all governmental employees, policemen, firemen, ambulance personnel, and similar emergency personnel in the performance of their respective duties. Except in an emergency situation, entry shall only be during reasonable hours and after notice to the Owner, and the entering party shall be responsible for any damage caused. This right of entry shall include the right of the Board to enter to cure any condition which may increase the possibility of a fire, slope erosion, or other hazard or condition in the event an Owner or Occupant fails or refuses to cure the condition upon request by the Board.
Section 6. Easement for Maintenance. Declarant hereby expressly reserves a perpetual easement for the benefit of Declarant and the Association across such portions of the Community, determined in the sole discretion of the Declarant and the Association, as are necessary to allow for the maintenance required or permitted by this Declaration. Such maintenance shall be performed with a minimum of interference to the quiet enjoyment to Owners’ property, reasonable steps shall be taken to protect such property, and damage shall be repaired by the Person causing the damage at its sole expense.
55 at the Park 32 Book9535 - Page 94 Page 37 of 48 Section 7. Easement for Sign, Entry and Streetscape Features. There is hereby
shall be repaired by the Person causing the damage at its sole expense.
55 at the Park 32 Book9535 - Page 94 Page 37 of 48 Section 7. Easement for Sign, Entry and Streetscape Features. There is hereby reserved to the Declarant and, established in favor of the Association, an easement for ingress, egress, installation, construction, landscaping, and maintenance of sign, entry and streetscape features and landscaping, over and upon each Lot over which such an easement is denoted on any recorded subdivision plats for the Community. The easement and right herein reserved and established shall include the right to erect and maintain sign, entry and streetscape features and to cut, remove, and plant trees, shrubbery, flowers, and other vegetation around such features and the right to grade the land under and around such features.
Section 8. Construction and Sale Period Easement. Notwithstanding any provisions contained in the Declaration, the Bylaws, Articles of Incorporation, use restrictions, tules and regulations, design guidelines, and any amendments thereto, during Declarant’s Development Period, Declarant reserves an easement across such portions of the Community as Declarant may reasonably deem necessary for any or all of the purposes hereinafter set forth. This reserved easement shall include an easement for such facilities and activities which, in the sole opinion of Declarant, may be required, convenient, or incidental to the development, construction, and sales activities related to property within or near the Community. This easement shall include, without limitation: (a) The right of access, ingress, and egress for vehicular and pedestrian traffic, and construction activities over, under, on, or in any portion of the Community as well as any Lot in the Community;
(a) The right of access, ingress, and egress for vehicular and pedestrian traffic, and construction activities over, under, on, or in any portion of the Community as well as any Lot in the Community; (b) The right to tie into any portion of the Community with driveways, parking areas, and walkways; (c) The right to tie into or otherwise connect and use (without a tap-on or any other fee for so doing), replace, relocate, maintain, and repair any device which provides utility or similar services; (d) The right (but not the obligation) to construct additional improvements on Common Area; (e) The right to carry on sales and promotional activities in the Community; (f) The right to place direction and marketing signs on any portion of the Community, including any Lot or Common Area; (g) The right to construct and operate business offices, signs, construction trailers, model residences, and sales offices incidental to the construction, development, and sales activities; and (h) Declarant may use residences, offices, or other buildings owned or leased by Declarant as model residences and sales offices, and may also use Common Area and any improvements located thereon, as a sales office or for marketing purposes without charge. Rights exercised pursuant to such reserved easement shall be exercised with a minimum of interference to the quiet enjoyment of affected property, and reasonable steps shall be taken to protect such property from damage. Any damage shall be repaired by the Person causing the damage at its sole expense. This Section shall not be amended without 55 at the Park 33 Book9535 - Page 95 Page 38 of 48 the Declarant’s express written consent until the Declarant’s rights hereunder have terminated as provided in this Declaration.
ot be amended without 55 at the Park 33 Book9535 - Page 95 Page 38 of 48 the Declarant’s express written consent until the Declarant’s rights hereunder have terminated as provided in this Declaration.
Section 9. Irrigation Easements. There is hereby reserved to the Declarant and established in favor of the Association a blanket easement to pump water from ponds, lakes, and other bodies of water located within the Community for irrigation purposes, subject to any applicable governmental restrictions.
Section 10. | Fence Easement. Declarant hereby reserves and establishes an easement across any Lot which borders upon or contains a portion of any water facility, detention pond, or retention pond for the purpose of access to such facility or pond, and for the purpose of erecting any fence which is either required by the subdivision development and construction plans or governmental regulation, rule, ordinance, or plan approval requirement.
Section 11. | Easements in Favor of Additional Property. Declarant hereby reserves and establishes such easements on, across and over the Common Area as shall be reasonably necessary for (i) the exercise by Declarant or any Affiliate of any right herein reserved, including, without limitation, Declarant’s right, should Declarant elect, to annex any portion of the additional property that may be annexed pursuant to the provisions of Article [X, Section 1 hereof, and (ii) the development by Declarant or any Affiliate, their respective successors and assigns, of any portion of the additional property that may be annexed pursuant to the provisions of Article IX, Section 1 hereof should Declarant elect not to annex all or any portion of such additional property,
ny portion of the additional property that may be annexed pursuant to the provisions of Article IX, Section 1 hereof should Declarant elect not to annex all or any portion of such additional property, including without limitation easements for ingress, egress and regress over private roads and streets now or hereafter erected on the Properties and easements for drainage and for the use of all utility lines, fixtures and/or their connections located within the Common Area for the purpose of providing drainage, water, light, power, telephone, sewage and sanitary service to the such additional property, which easements shall run with and benefit the additional property. This Section shall not be amended without the express written consent of Declarant, during Declarant’s Development Period, and thereafter only with the consent of Persons benefited by such easement.
Section 12. Dwelling Maintenance Easements. If any Dwelling is located closer than five (5) feet from its Lot line or if any utility lines or facilities serving a Dwelling, are located in whole or in part on an adjoining Lot, the Owner of said Dwelling shall have a perpetual access easement over the adjoining Lot to (i) repair, maintain, perform, paint, or reconstruct his or her Dwelling, and (ii) to repair, maintain, replace, and inspect any utility lines or facilities serving his or her Lot. Within said easement area no fence or vegetation shall be located. The easement rights noted in (ii) may also be exercised the applicable utility company who owns or maintains the utility facilities located on the adjoining Lot.
Section 13. Blanket Easement. An easement is hereby reserved in favor Declarant and the Association over the Lots and Common Area for the installation, operation, inspection, and
on the adjoining Lot.
Section 13. Blanket Easement. An easement is hereby reserved in favor Declarant and the Association over the Lots and Common Area for the installation, operation, inspection, and maintenance of landscaping, a common cable television system, a common sprinkler system, entrance sign or features, or any other item for the common enjoyment and benefit of the Owners or for the enhancement of the Community. No Owner shall damage, destroy, alter or otherwise disrupt any of such items so installed. Each Owner shall hold the Association and/or Declarant harmless from the cost of repairing or replacing any of such items which are damaged or destroyed by the acts of such Owner, his family, his guests or invitees.
55 at the Park 34 Book9535 - Page 96 Page 39 of 48 Section 14. Declarant’s Easement to Inspect Lots and Dwellings. A perpetual easement is hereby reserved in favor of Declarant over and upon the Properties for the purpose of allowing Declarant’s inspection of the structural portions of the Dwellings and the grade and contour of the Lots. Declarant’s easement to perform such inspections shall be perpetual to the extent permitted by applicable law.
Section 15. Retaining Wall/Privacy Fence Easement. Declarant hereby reserves for the benefit of Declarant and the Association, an easement over and upon those portions of the Properties on which any part of a retaining wall or privacy fence constructed by Declarant is located. The purpose of this easement is to allow Declarant and the Association to inspect, maintain, repair, reconstruct, and replace the retaining walls and privacy fences installed by Declarant upon various portions of the Properties. This easement includes the right of Declarant
inspect, maintain, repair, reconstruct, and replace the retaining walls and privacy fences installed by Declarant upon various portions of the Properties. This easement includes the right of Declarant and the Association to enter upon any Lot on which any portion of a retaining wall or privacy fence is located, including the right to remove any improvements, materials or other obstructions which impede access to the retaining wall or common privacy fence or which violate the restriction in Section 36 of Article VI. Declarant reserves the right to file one or more amendments to this Declaration for the purpose of delineating portions of the easement subject to this Section 15 of Article X on a map or plan to locate the specific as-built location of all or a portion of any retaining wall or common privacy fence. Such amendment shall not require the joinder or consent of the Association or any Owner or other party, regardless of the ownership of the specific portions of the Properties on which such wall and/or fence are located. No amendment of this Section shall be effective without the consent of Declarant.
ARTICLE XI.
GENERAL PROVISIONS Section 1. Enforcement. Each Owner and Occupant shall comply strictly with the Bylaws, the rules and regulations, and the use restrictions, as they may be lawfully amended or modified from time to time, and with the covenants, conditions, and restrictions set forth in this Declaration and any such restrictions which may be placed in the deed to such Owner’s Lot, if any. In the event of a conflict between the provisions of this Declaration and the Bylaws, the Declaration shall prevail. The Board may impose fines or other sanctions, which shall be collected
ot, if any. In the event of a conflict between the provisions of this Declaration and the Bylaws, the Declaration shall prevail. The Board may impose fines or other sanctions, which shall be collected as provided herein for the collection of Assessments. Failure to comply with this Declaration, the Bylaws, or the rules and regulations shall be grounds for an action to recover sums due for damages or injunctive relief, or both, maintainable by the Board of Directors, on behalf of the Association, or in a proper case, by an aggrieved Owner. To determine fines and sanctions against Owners, a hearing shall be held before the Board of Directors or an adjudicatory panel appointed by the Board. The Owner shall be given notice of the charge, an opportunity to be heard and to present evidence, and a notice of decision by the Board. Ifa fine is imposed it may not exceed one hundred ($100.00) for the violation and for each day after the notice of decision that the violation continues.
Such fines shall be Assessments secured by a lien. Ifa sanction is imposed it may continue without further hearing until the violation is cured. Failure by the Association or any Owner to enforce any of the foregoing shall in no event be deemed a waiver of the right to do so thereafter. The Board shall have the right to record in the appropriate land records a notice of lien, a notice of violation of the Declaration, Bylaws, rules and regulations, use restrictions, or design guidelines, and to assess the cost of recording and removing such notice against the Owner who is responsible (or whose Occupants are responsible) for violating the foregoing.
55 at the Park 35 Book9535 - Page 97 Page 40 of 48 Section 2. Self-Help. In addition to any other remedies provided for herein, the
le (or whose Occupants are responsible) for violating the foregoing.
55 at the Park 35 Book9535 - Page 97 Page 40 of 48 Section 2. Self-Help. In addition to any other remedies provided for herein, the Association or its duly authorized agent shall have the power to enter upon any Lot or any other portion of the Community to abate or remove, using such force as may be reasonably necessary, any structure, thing, or condition which violates this Declaration, the Bylaws, the rules and regulations, or the use restrictions. Unless an emergency situation exists, the Board shall give the violating Owner ten (10) days written notice of its intent to exercise self-help. Notwithstanding the foregoing, vehicles stored or parked in violation of this Declaration or the Bylaws may be towed after reasonable notice. All costs of self-help, including reasonable attorneys’ fees, shall be assessed against the violating Owner and shall be collected as provided for herein for the collection of Assessments.
Section 3. Duration. The covenants and restrictions of this Declaration shall run with and bind the Community, and shall inure to the benefit of and shall be enforceable by Declarant, the Association or any Owner, their respective legal representatives, heirs, successors, and assigns, perpetually to the extent provided by law. If North Carolina law limits the period during which covenants restricting lands to certain uses may run, any provision of this Declaration affected thereby shall run with and bind the land so long as permitted by such law, after which time any such provision shall be automatically extended for successive periods of ten (10) years, unless a written instrument reflecting disapproval signed by the then Owners of two-thirds (2/3) of the Lots
ny such provision shall be automatically extended for successive periods of ten (10) years, unless a written instrument reflecting disapproval signed by the then Owners of two-thirds (2/3) of the Lots and the Declarant (during Declarant’s Development Period) is recorded within the year immediately preceding the beginning of a ten (10) year renewal period.
Section 4. Amendment. This Declaration may be amended unilaterally at any time and from time to time by Declarant (a) if such amendment is necessary to bring any provision hereof into compliance with any applicable governmental statute, rule or regulation, or judicial determination which shall be in conflict therewith; (b) if such amendment is necessary to enable any title insurance company to issue title insurance coverage with respect to the Lots subject to this Declaration; (c) if such amendment is required by an institutional or governmental lender or purchaser of mortgage loans, including, for example, the Federal National Mortgage Association, the Department of Housing and Urban Development, the Veterans Administration, or Federal Home Loan Mortgage Corporation, to enable such lender or purchaser to make or purchase Mortgage loans on the Lots subject to this Declaration; or (d) if such amendment is necessary to enable any governmental agency or private insurance company to insure or guarantee Mortgage Loans on the Lots subject to this Declaration; provided, however, any such amendment shall not adversely affect the title to any Owner’s Lot unless any such Owner shall consent in writing.
Further, so long as Declarant has the right unilaterally to subject additional property to this Declaration, Declarant may unilaterally amend this Declaration for any other purpose; provided
writing.
Further, so long as Declarant has the right unilaterally to subject additional property to this Declaration, Declarant may unilaterally amend this Declaration for any other purpose; provided that, any such amendment shall not materially adversely affect the substantive rights of any Owners hereunder, nor shall it adversely affect title to any Lot without the consent of the affected Owner.
In addition to the above, this Declaration may be amended: (a) During Declarant’s Development Period, with the affirmative written consent of the Declarant and upon the affirmative vote or written consent, or any combination thereof, of the Owners of Lots to which at least sixty-seven percent (67%) of the votes of the Association are allocated; and 55 at the Park 36 Book9535 - Page 98 Page 41 of 48 (b) Following the expiration of Declarant’s Development Period, upon the affirmative vote or written consent, or any combination thereof, of the Owners of Lots to which at least seventy-five percent (75%) of the votes of the Association are allocated.
Notwithstanding anything herein to the contrary, no amendment altering or impairing any right reserved in favor of or conferred on Declarant pursuant to the terms of this Declaration, and no amendment purporting to impose any additional obligation on Declarant, shall be effective without the written consent of Declarant and any successor Declarant to which such right(s) have been assigned.
Section 5. Partition. The Common Area shall remain undivided, and no Owner nor any other Person shall bring any action for partition or division of the whole or any part thereof without the written consent of all Owners of all portions of the property located within the
wner nor any other Person shall bring any action for partition or division of the whole or any part thereof without the written consent of all Owners of all portions of the property located within the Community and without the written consent of all holders of all Mortgages encumbering any portion of the property, including, but not necessarily limited to, the Lots located within the Community.
Section 6. Gender and Grammar. The singular, wherever used herein, shall be construed to mean the plural, when applicable, and the use of the masculine pronoun shall include the neuter and feminine.
Section 7. Severability. Whenever possible, each provision of this Declaration shall be interpreted in such manner as to be effective and valid, but if the application of any provision of this Declaration to any person or to any property shall be prohibited or held invalid, such prohibition or invalidity shall not affect any other provision or the application of any provision which can be given effect without the invalid provision or application, and to this end, the provisions of this Declaration are declared to be severable.
Section 8. Captions. The captions are inserted only for convenience and are in no way to be construed as defining, limiting, extending, or otherwise modifying or adding to the particular Article or Section to which they refer.
Section 9. Perpetuities. If any of the covenants, conditions, restrictions, or other provisions of this Declaration shall be unlawful, void, or voidable for violation of the rule against perpetuities, then such provisions shall continue only until twenty-one (21) years after the death of the last survivor of the now living descendants of Elizabeth II, Queen of England.
he rule against perpetuities, then such provisions shall continue only until twenty-one (21) years after the death of the last survivor of the now living descendants of Elizabeth II, Queen of England.
Section 10. Indemnification. To the fullest extent allowed by applicable North Carolina law, the Association shall indemnify every officer of the Association and director of the Association against any and all expenses, including, without limitation, attorneys’ fees, imposed upon or reasonably incurred by any officer or director in connection with any action, suit, or other proceeding to which such officer or director may be a party by reason of being or having been an officer or director. The officers and directors shall not be liable for any mistake of judgment, negligent or otherwise, except for their own individual willful misfeasance, malfeasance, misconduct, or bad faith. The officers and directors shall have no personal liability with respect to any contract or other commitment made by them, in good faith, on behalf of the Association (except to the extent that such officers or directors may also be members of the Association), and the Association shall indemnify and forever hold each such officer and director free and harmless against any and all liability to others on account of any such contract or commitment. Any right 55 at the Park 37 Book9535 - Page 99 Page 42 of 48 to indemnification provided for herein shall not be exclusive of any other rights to which any officer or director, or former officer of director, may be entitled. This indemnification shall also include attorneys’ fees and expenses incurred in enforcing this indemnification. The Association shall maintain adequate general liability and officers’ and directors’ liability insurance to fund this
include attorneys’ fees and expenses incurred in enforcing this indemnification. The Association shall maintain adequate general liability and officers’ and directors’ liability insurance to fund this obligation, if such coverage is reasonably available.
Section 11. Books and Records.
(a) Inspection by Members and Mortgagees. This Declaration, the Bylaws, copies of rules and use restrictions, membership register, books of account, and minutes of meetings of the members of the Board and of committees shall be made available for inspection and copying by Declarant or any member of the Association or by the duly appointed representative of any member and by holders, insurers, or guarantors of any first Mortgage at any reasonable time and for a purpose reasonably related to such Person’s interest as a member or holder, insurer, or guarantor of a first Mortgage at the office of the Association or at such other reasonable place as the Board shall prescribe.
(b) Rules for Inspection. The Board shall establish reasonable rules with respect to: (1) notice to be given to the custodian of the records; (2) hours and days of the work when such an inspection may be made; and (3) payment of the cost of reproducing copies of documents.
(c) Inspection by Directors. Every director shall have the absolute right at any reasonable time to inspect all books, records, and documents of the Association and the physical properties owned or controlled by the Association. The right of inspection by a director includes the right to make extra copies of documents at the reasonable expense of the Association.
Section 12. Financial Review. A review of the books and records of the Association shall be made annually in the manner as the Board may decide; however, after having received the
of the Association.
Section 12. Financial Review. A review of the books and records of the Association shall be made annually in the manner as the Board may decide; however, after having received the Board’s financial statements, the Owners entitled to cast at least a majority of the votes of the Association, may require that the accounts of the Association be audited by a certified public accountant, the cost of which shall be a Common Expense of the Association. Upon written request of any institutional holder of a first Mortgage and upon payment of all necessary costs, such holder shall be entitled to receive a copy of audited financial statements within ninety (90) days of the date of the request.
Section 13. Notice of Sale, Lease, or Acquisition. In the event an Owner sells or leases such Owner’s Lot, the Owner shall give to the Association, in writing, prior to the effective date of such sales or lease, the name of the purchaser or lessee of the Lot and such other information as the Board may reasonably require. Upon acquisition of a Lot, each new Owner shall give the Association, in writing, the name and mailing address of the Owner and such other information as the Board may reasonably require.
Section 14. | Agreements. Subject to the prior approval of Declarant (during Declarant’s Development Period), all agreements and determinations, including settlement agreements regarding litigation involving the Association, lawfully authorized by the Board shall be binding upon all Owners, their heirs, legal representatives, successors, assigns, and others having an 55 at the Park 38 Book9535 - Page 100 Page 43 of 48 interest in the Community or the privilege of possession and enjoyment of any part of the Community.
ives, successors, assigns, and others having an 55 at the Park 38 Book9535 - Page 100 Page 43 of 48 interest in the Community or the privilege of possession and enjoyment of any part of the Community.
Section 15. Implied Rights. The Association may exercise any right or privilege given to it expressly by the Declaration, the Bylaws, the Articles of Incorporation, any use restriction or rule, and every other right or privilege reasonably to be implied from the existence of any right or privilege given to it therein or reasonably necessary to effectuate any such right or privilege.
ARTICLE XII.
PARTY WALLS Section 1. General Rules of Law to Apply. Each wall which is shared by the Dwellings located on Lots and placed on the common boundary line of the Lots shall constitute a party wall, and, to the extent not inconsistent with the provisions of this Section, the general rules of law regarding party walls and liability for property damage due to negligence, or willful acts or omissions shall apply thereto.
Section 2. Repair and Maintenance. The cost of reasonable maintenance of a party wall shall be shared by the Owners of the Lots on which the residences that share the party wall are located in proportion to such use. Provided, however, each Owner is responsible for usual and routine maintenance (for example, painting) of the portion of any party wall on the inside of such Owner’s residence.
Section 3. Destruction by Fire or Other Casualty. Ifa party wall is destroyed or damaged by fire or other casualty, any Owner of a Lot on which a residence which shares such party wall is located may restore or repair it, and the Owners of the other Lot on which the residence that shares the restored or repaired party wall is located shall, within twenty-one (21)
res such party wall is located may restore or repair it, and the Owners of the other Lot on which the residence that shares the restored or repaired party wall is located shall, within twenty-one (21) days of the receipt of a request for payment and invoices showing the cost of such restoration or repair, contribute to the cost of the restoration or repair thereof (or reimburse the Owner who has paid such costs) in proportion to their use of the party wall, without prejudice, however, to the right of any such Owner to demand a larger contribution from the other Owners under any rule of law regarding liability for negligent or willful acts or omissions.
Section 4. Exposure to the Elements. Notwithstanding any other provision of this Section, an Owner of a Lot on which a residence that shares a party wall is located who, by such Owner’s negligent or willful act or omission, damages or causes the common party wall to be exposed to the elements shall bear the entire cost of the necessary repair or restoration.
Section 5. Assignment of Right of Contribution. The right of any Owner to contribution from any other Owner under this Section with respect to all matters occurring prior to the transfer of title of the Lot to a subsequent Owner may be retained by the transferring Owner to the extent that the transferring Owner paid any expenses for which contribution is available; otherwise, the right of contribution shall be transferred to the subsequent Owner. The amount owed shall constitute the personal debt of the Owner from whom it is owed, and the Owner to whom the contribution is owed shall have all remedies available at law or in equity to enforce such Owner’s right of contribution. An Owner’s obligation for contribution is appurtenant to and shall
to whom the contribution is owed shall have all remedies available at law or in equity to enforce such Owner’s right of contribution. An Owner’s obligation for contribution is appurtenant to and shall run with title to such Owner’s Lot.
55 at the Park 39 Book9535 - Page 101 Page 44 of 48 Section 6. Estoppel Certificate. An Owner who desires to sell a Lot, or the prospective purchaser of such Lot, may request the Owners of the other Lot which shares that party wall to provide a certificate stating whether or not such certifying Owner has any right or obligation of contribution with respect to such party wall against the Owner who desires to sell. Each certifying Owner from whom such certificate is requested shall, within ten (10) days after receipt of a written request for certification, furnish same to the requesting Owner or purchaser, as applicable, either confirming that no right of contribution exists or stating the amount of and reasons for the contribution claimed against the requesting Owner. A certificate signed by any one or more of the Owners of a Lot which shares a party wall with the Lot of the requesting Owner shall be conclusive evidence of its contents with respect to all other Owners of that Lot and with respect to third parties.
Section 7. Easement for Repair and Maintenance. Each Owner of a Lot on which is located a Dwelling that shares a party wall and such Owner’s contractors and subcontractors shall have an easement and right of entry upon the Lot on which is located the other residence that shares the party wall to the extent reasonably necessary to repair, restore, maintain or reconstruct the party wall. Such repair, restoration, maintenance or reconstruction shall be done expeditiously
shares the party wall to the extent reasonably necessary to repair, restore, maintain or reconstruct the party wall. Such repair, restoration, maintenance or reconstruction shall be done expeditiously and, promptly upon completion of the work, the Owner on whose behalf the work is being done shall repair any damage caused as a result thereof.
Section 8. Arbitration. In the event of any dispute arising concerning a party wall, or under the provisions of this Section, each party shall choose one arbitrator, and such arbitrators shall choose one additional arbitrator, and the decision shall be by a majority of all the arbitrators.
ARTICLE XIII.
VARIANCES Notwithstanding anything to the contrary contained herein, the Declarant and the Board or its designee shall be authorized to grant individual variances from any of the provisions of this Declaration, the Bylaws, and any rule, regulation, or use restriction promulgated pursuant thereto if it determines that waiver of application or enforcement of the provision in a particular case would not be inconsistent with the overall scheme of development for the Community.
ARTICLE XIV.
LITIGATION No judicial or administrative proceeding shall be commenced or prosecuted by the Association unless approved by the Owners entitled to cast at least eighty percent (80%) of the votes of the Association. This Article shall not apply, however, to (a) actions brought by the Association to enforce the provisions of this Declaration (including, without limitation, the foreclosure of liens), (b) the imposition and collection of Assessments as provided in this Declaration, (c) proceedings involving challenges to ad valorem taxation, or (d) counterclaims brought by the Association in proceedings instituted against it.
ARTICLE XV.
essments as provided in this Declaration, (c) proceedings involving challenges to ad valorem taxation, or (d) counterclaims brought by the Association in proceedings instituted against it.
ARTICLE XV.
CAPITALIZATION OF ASSOCIATION Section 1. Working Capital Contribution. Upon acquisition of record title to a Lot by the first Owner other than Declarant, a contribution in an amount equal to Five Hundred Dollars ($500.00) (“Working Capital Contribution”) shall be made by or on behalf of the purchaser to 55 at the Park 40 Book9535 - Page 102 Page 45 of 48 the Association. The Working Capital Contribution shall be in addition to, not in lieu of, any annual or Special Assessments. The Working Capital Contribution shall be payable at closing, shall not be prorated, and the Association shall have all rights under the Declaration for enforcement of Assessments if it is not paid. The Working Capital Contribution referred to in this paragraph is payable only one time, and will not be charged to subsequent purchasers of a Lot once paid.
Each Working Capital Contribution deposit, at the discretion of the Declarant, shall be deposited for use to support the operating budget of the Association or deposited in a capital reserve fund (“Capital Reserve”). The Capital Reserve shall be paid as set out herein. At the time that the Declarant no longer has the right to appoint directors pursuant to Article III, Section 2 of this Declaration, the Association and the Declarant shall enter into an agreement transferring full control of the Association to the Lot Owners and transferring responsibility for all Common Elements to the Association, which agreement also releases Declarant from any further responsibility or obligations to the Association (“Transfer and Release Agreement”). Upon
nsibility for all Common Elements to the Association, which agreement also releases Declarant from any further responsibility or obligations to the Association (“Transfer and Release Agreement”). Upon execution of the Transfer and Release Agreement, Declarant shall release the Capital Reserve fund to the Association. Should the Association request the Declarant make repairs or other improvements any time prior to the execution of the Transfer and Release Agreement, then Declarant is authorized to use amounts from the Capital Reserve to accomplish such repairs or improvements. Should the Association and the Declarant be unable to enter into a mutually acceptable Transfer and Release Agreement, within one hundred and eighty days from the date that Declarant no longer has the right to appoint directors pursuant to Article II, Section 2 of this Declaration, then the Capital Reserve shall be paid by the Association to Declarant as a repayment for Declarant’s advances to supplement deficits in the Association operating budget prior to the date of transfer.
ARTICLE XVI.
BULK SERVICES AND BULK SERVICES CONTRACT(S) The Declarant or the Association may contract with third persons or entities for the provision of bulk services to the Community for the benefit of the Owners, including, without limitation, trash collection, telephone, internet, and broadcast television services, as the Declarant or the Board of Directors of the Association, acting in its or their sole discretion, deem reasonable and appropriate from time to time (“Bulk Service Contract(s)”). Payments due and owing under any Bulk Service Contracts are a Common Expense and shall be paid using assessments levied and collected as provided in Article IV hereof and no Owner shall be permitted to exempt
due and owing under any Bulk Service Contracts are a Common Expense and shall be paid using assessments levied and collected as provided in Article IV hereof and no Owner shall be permitted to exempt him/herself from any such Assessment by non-use of or refusal to accept any services which are contracted for in any Bulk Service Contract.
Bulk Service Contracts for the Community may be entered into in the name of the Declarant or in the name of the Association. Bulk Service Contracts entered into in the name of the Declarant may be assigned (in whole or in part) by the Declarant to the Association at any time, and such assignment or partial assignment shall not require the consent or approval of any other person or entity, including, without limitation, the Association’s Board of Directors, any officer of the Association and/or any Owner.
55 at the Park 41 Book9535 - Page 103 Page 46 of 48 Each Owner acknowledges that interruptions in services provided pursuant to Bulk Service Contracts will occur from time to time. Declarant and the Association shall not be liable for, and shall not be obligated to a provide any Owner or other person with any compensation, or refund, rebate, or offset of any applicable fee(s) or Assessment, as a result of any interruption in services, regardless of whether or not such interruption is caused by reasons which are within the Association’s or the service provider’s control.
Notwithstanding anything else to the contrary, Declarant is expressly authorized to contract for, to receive and to retain direct compensation from the provider of any service(s) provided pursuant to any Bulk Service Contract. Declarant’s right to compensation hereunder shall be
d to contract for, to receive and to retain direct compensation from the provider of any service(s) provided pursuant to any Bulk Service Contract. Declarant’s right to compensation hereunder shall be perpetual and no provision in any Bulk Service Contract or other agreement which provides for such compensation to Declarant shall be cancelled, abridged or modified in any way in that absence of Declarant’s prior written consent thereto.
IN WITNESS WHEREOF, the Declarant herein, hereby executes this instrument under seal this the [8day of _ Novembey , 2021.
DECLARANT: PULTE HOME COMPANY, LLC, a Michigan limited liability company By: Una. Rasen Chris Raughley Vice President of Land Development STATE OF NORTH CAROLINA _ ) COUNTY OF BERHAME WAKE ) LMelisn Smetana , Notary Public, certify that Chris Raughley personally came before me this day and acknowledged that he is Vice President of Land Development of PULTE HOME COMPANY, LLC, a Michigan limited liability company, and that he/she as Vice President, being authorized to do so, executed the foregoing on behalf of the company.
WITNESS my hand and official seal, this the 1S day of November , 2021.
Signature of Notary Public oo benied, Name: Melis A Sm etana w Date of Expiration of Commission: s¢y, WE o1/rt)z< . FSP QOTARLS 4 \ “tna 55 at the Park .
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“os see “a, NM %, 4% % Book9535 - Page 104 Page 47 of 48 EXHIBIT A Legal Description of Property Subject to Declaration LYING and being in the City of Durham, Durham County, North Carolina, and being more particularly described as follows: TRACT ONE BEGINNING AT THE EASTERN SIDE OF PENRITH DRIVE, AT A 1/2” EXISTING IRON ROD, ALSO BEING THE MOST SOUTHWESTERLY POINT OF PROPERTY OWNED BY
a, and being more particularly described as follows: TRACT ONE BEGINNING AT THE EASTERN SIDE OF PENRITH DRIVE, AT A 1/2” EXISTING IRON ROD, ALSO BEING THE MOST SOUTHWESTERLY POINT OF PROPERTY OWNED BY PENRITH TOWNHOMES, LLC (DB 3249, PG 785 (TRACT 1) PB 153, PG 359 (PARCEL B REVISED) DURHAM COUNTY REGISTRY; THENCE NORTH 64° 07’ 26” EAST 394.93 FEET TO AN EXISTING 1/2” IRON ROD; THENCE NORTH 11° 04’ 52” EAST 509.35 FEET TO AN EXISTING 1/2” IRON ROD; THENCE NORTH 0° 04’ 06” EAST 141.16 FEET TO AN EXISTING 5/8” IRON ROD; THENCE NORTH 88° 15’ 17” EAST 207.90 FEET TO AN EXISTING 1/2 IRON ROD AT THE NORTHERN PROPERTY CORNER OF NEW COMMUNICATIONS OF THE CAROLINAS INC. DB 6516, PG 575, DB 1201, PG 67, PB 107,PG 121; THENCE NORTH 88° 15’ 17” EAST TO AN EXISTING IRON ROD; THENCE SOUTH 1° 45’ 16” EAST TO AN EXISTING 1/2” IRON ROD; THENCE NORTH 87° 58’ 56” EAST TO AN EXISTING 1/2” IRON ROD; THENCE ALONG THE WESTERN SIDE OF HIGHWAY 55 RALSEN PROPERTIES LLC DB 4836, PG 850 (TRACT 2), PB 94 PG 128 PB 151 PG 133 (LOT 9) SOUTH 2° 03’ 13” EAST 459.95 FEET TO AN EXISTING 1/2” IRON ROD; THENCE SOUTH 2° 02’ 09” EAST 294.46 FEET TO AN EXISTING CONCRETE MONUMENT; THENCE NORTH 86° 57’ 59” WEST 555.17 FEET TO AN EXISTING 1/2” IRON ROD; THENCE SOUTH 64° 05’ 08” WEST 186.59 FEET TO A POINT; THENCE SOUTH 64° 13’ 21” WEST 104.86 FEET TO AN EXISTING 1/2” IRON ROD ON THE EASTERN SIDE OF PENRITH DRIVE; THENCE WITH A CURVE TO THE LEFT HAVING A RADIUS OF 736.71 FEET, AN ARC DISTANCE OF 128.47 FEET (CHORD BEARING NORTH 10°58’ 51” WEST, CHORD DISTANCE 128.31 FEET, TO THE PLACE OF BEGININNG, AND CONTAINING 8.88 ACRES, MORE OR LESS.
TRACT TWO BEGINNING AT THE SOUTHWESTERN INTERSECTION OF ODYSSEY DRIVE WITH NC HIGHWAY 55; THENCE WITH THE WESTERN SIDE OF NC HIGHWAY 55 SOUTH 08° 06'
EGININNG, AND CONTAINING 8.88 ACRES, MORE OR LESS.
TRACT TWO BEGINNING AT THE SOUTHWESTERN INTERSECTION OF ODYSSEY DRIVE WITH NC HIGHWAY 55; THENCE WITH THE WESTERN SIDE OF NC HIGHWAY 55 SOUTH 08° 06' 47°” WEST 820.94 FEET TO AN EXISTING 3/4” IRON ROD, THE NORTHEASTERN CORNER OF LOT L; THENCE WITH THE NORTHERN LINE OF SAID LOT L NORTH 83°24' 59" WEST 683.67 FEET TO AN EXISTING 1/2” IRON ROD IN THE EASTERN LINE OF TRACT H AS SHOWN IN PLAT BOOK 153 AT PAGE 359, DURHAM COUNTY REGISTRY; THENCE WITH THE EASTERN LINE OF SAID TRACT H NORTH 02° 03' 13" WEST 459.95 FEET TO AN EXISTING 1/2” IRON ROD, SOUTHEASTERN CORNER OF GENERAL TELEPHONE PROPERTY (DB 3621, PG 595, PB 153, PG 359); THENCE WITH THE WESTERN LINE OF THE GENERAL TELEPHONE PROPERTY NORTH 02° 04' 08" WEST 99.95 FEET TO AN EXISTING 1/2” IRON ROD, THE NORTHEASTERN CORNER OF THE GENERAL TELEPHONE PROPERTY AND A CORNER OF REVISED TRACT B AS SHOWN ON SAID PLAT; THENCE WITH THE EASTERN LINE OF SAID REVISED TRACT B, NORTH 02°03' 03" WEST 209.88 FEET TO AN EXISTING 1/2” IRON ROD OF SAID Exhibit B Book9535 - Page 105 Page 48 of 48 REVISED TRACT B ON THE SOUTHERN SIDE OF ODYSSEY DRIVE; THENCE WITH THE SOUTHERN SIDE OF ODYSSEY DRIVE SOUTH 89° 47' 03" EAST 466.49 FEET TO AN EXISTING 1/2” IRON ROD; THENCE CONTINUING WITH THE SOUTHERN SIDE OF ODYSSEY DRIVE IN AN EASTERLY DIRECTION ALONG AN ARC HAVING A RADIUS OF 1,879.74 FEET, AN ARC DISTANCE OF 259.52 FEET (CHORD BEARING SOUTH 85° 45' 57" EAST, CHORD DISTANCE 259.31 FEET) TO AN EXISTING 1/2” IRON ROD ; THENCE SOUTH 81° 48' 38" EAST 98.60 FEET TO THE SOUTHWESTERN INTERSECTION OF ODYSSEY DRIVE WITH NC HIGHWAY 55, BEING THE POINT AND PLACE OF BEGINNING, CONTAINING 13.90 ACRES, MORE OR LESS.
55 at the Park 2