HEME FOR REGISTRATION REGISTER OF DEEDS “DURHAM COUNTY NC 2013 JAN 28 03 48 15 PM BX 7176 PG 352-368 FEE $26 00 INSTRUMENT & 2013003229 Prepared by and return to Bagwell Holt Smith PA 111 Cloister Court, Ste 200, Chapel Hill, NC 27514 Declarant’s Address 2000 Aerial Center Parkway, Ste 110, Morrisville, NC 27560 SIXTH AMENDMENT TO THE DECLARATION OF COVENANTS, CONDITIONS, AND RESTRICTIONS FOR THE EVERWOOD HOME OWNERS ASSOCIATION, INC.
This Sixth Amendment to the Declaration of Covenants, Conditions, and Restrictions for the Everwood Home Owners Association, Inc (this “Amendment”), 1s made this 3“ day of January, 2013, by D.R Horton, Inc., a Delaware corporation, hereinafter referred to as the “Declarant” The Declarant states and declares as follows A Old Chapel Properties, LLC, a North Carolina limited lability company (the Original Declarant”), previously made a Declaration of Covenants, Conditions, and Restrictions fo: the Everwood Home Owners Association, Inc (f/k/a Everwood Property Owners Association, Inc ), dated June 22, 2006 and recorded June 30, 2006 at Book 5267 Page 868, Durham County Registry, as amended by (1) that Amendment to Declaration of Covenants, Conditions, and Restrictions for the Everwood Home Owners Association, Inc dated September 27, 2006 and recorded October 4, 2006 at Book 5379 Page 626, Durham County Registry, (11) that Second Amendment to the Declaration of Covenants, Conditions, and Restrictions & First Amendment to the Bylaws for the Everwood Home Owners Association, Inc dated April 26, 2007 and recorded April 27, 2007 at Book 5586 Page 84, Durham County Registry, (111) that Third Amendment to the Declaration of Covenants, Conditions, and Restrictions for the Everwood Home
April 26, 2007 and recorded April 27, 2007 at Book 5586 Page 84, Durham County Registry, (111) that Third Amendment to the Declaration of Covenants, Conditions, and Restrictions for the Everwood Home Owners Association, Inc dated August 30, 2007 and recorded September 25, 2007 at Book 5751 Page 957, Durham County Registry, (iv) that Fourth Amendment to the Declaration of Covenants, Conditions, and Restrictions for the Everwood Home Owners Association, Inc dated June 28, 2011 and recorded June 30, 2011 at Book 675! Page 726, Durham County Registry, (v) that Annexation Declaration to the Declaration of Covenants, Conditions, and Restrictions for the Everwood Home Owners Association, Inc dated June 28, 2011 and recorded June 30, 2011 at Book 6751 Page 730, Durham County Registry, and (v1) that Fifth Amendment to the Declaration of Covenants, Conditions, and Restrictions & Second Amendment to the Bylaws for the Everwood Home Owners Association, Inc dated August 9, 2011 and recorded August 12, 2011 at Book 6779 Page 543, Durham County Registry (collectively, the Declaration”) The Declaration also includes the Bylaws for the Everwood Home Owners Association, Inc , which are attached to the Declaration as Exhibit C (the “Bylaws’ ) B Old Chapel Properties, LLC assigned its nghts as “Declarant” under the Declaration to DR Horton, Inc under that Assignment of Declarant’s Rights dated August 3, 2011 and recoded August 5 2011 at Book 6775 Page 535, Durham County Registry Cc Section 10 of Article LX of the Declaration provides that during the period of Declarant Control after the sale of the first Lot, the Declarant may amend the Declaration so long as it still owns part of the Property and so long as the amendment has no adverse effect upon any right of any Owner
ol after the sale of the first Lot, the Declarant may amend the Declaration so long as it still owns part of the Property and so long as the amendment has no adverse effect upon any right of any Owner D As of the date of this Amendment, the Declarant 1s still owns part of the Property, the period of Declarant Control has not ended and this Amendment will have no adverse effect upon any right of any Owner or upon any nght of any Member E Pursuant to Sections 3 of Article IX of the Declaration, Declarant now desires to amend the Declaration in order to incorporate language required by the City of Durham regarding the maintenance and repair of the Facility/tes (as that term 1s defined in Article XI of the Declaration) THEREFORE, Declarant hereby amends the Declaration by deleting Article XI in its entirety and replacing it with the following as the new Article XI of the Declaration Article XI — Obligations Regarding Stormwater Facilities The Property includes one or more stormwater management facilities (hereafter “Facility/ies”) that is/are the perpetual responsibility of the Association Such Facilities are the subject of a Stormwater Facility Agreement and Covenants (“Stormwater Agreement *) between Declarant, the Association, and the City of Durham (“the City”) that 1s binding on the Association The Stormwater Agreement 1s recorded at Book 7169 Page 506, Durham County Register of Deeds The Property subject to that Stormwater Agreement 1s the “Property” referied to in this Article The Stormwater Facilities must be maintained in accordance with City Requirements, which include all ordinances, policies, standards, and maintenance protocols and in accordance with the recorded Stormwater Agreement In particular the City’s current
ccordance with City Requirements, which include all ordinances, policies, standards, and maintenance protocols and in accordance with the recorded Stormwater Agreement 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 document at operation and maintenance manual prepared specifically for the Factlity/ies contain requirements that apply to the Association’s Facilities Nothing in the remaiming Article of these restrictive covenants filed by Declarant as part of this Declaration or any subsequent modifications of this Declaration may reduce the Association’s or Owners’ obligations with regard to the Facility/ies Such additional covenants may increase the obligations or provide for additional enforcement options The Stormwater Facility/ies and their location are as follows The Facility/ics that must be constructed, certified, maintained, inspected annually, repaired, and reconstructed pursuant to this Agreement are 1 one (1) wet detention pond (WP1) designed to have a 10-year, 24-hour storm event surface area of 16,565 square feet at an elevation of 270 12 feet It 1s located beside 115 Strolling Way 1 one (1) wet detention pond (WP2) designed to have a surface area of 17,330 square feet at an elevation of 260 10 feet It 1s located at 4427 Old Chapel Hill Road it one (1) bioretention area (BR1) designed to have a surface area of 1,743 square fect alan clevation of 252 65 feet It1s located behind 105 Strolling Way These Facilites are referred to as “Pond #1, Pond #2, and BR #1” 1n those certain ‘Stormwater Facility Agreement and Covenant Version 082203 recorded in Book 5211, Page
ocated behind 105 Strolling Way These Facilites are referred to as “Pond #1, Pond #2, and BR #1” 1n those certain ‘Stormwater Facility Agreement and Covenant Version 082203 recorded in Book 5211, Page 552, Book 5211, Page 561 and Book 5211, Page 570, Durham County Register of Deeds (collectively, the “Existing Stormwater Agreement”) In addition to the above obligations, the Association’s obligations with regaid to the Facthilics are | Inspections/Routine Maintenance In accordance with City Requirements, the Association shall cause the Facility/es to be inspected (1) annually, (1) after major storm events cause visual damage to the Facility, and (iu) upon notification from the City to inspect The inspection shall be pertormed by a registered 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 durmg the month in which the Facility/ies 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 2 Repair and Reconstruction. The Association shall repair and/or reconstruct the Faciltty/tes as it determines 1s necessary, and, al a minimum, as set forth in City Requirements or as directed by the City to allow the Facility/ies to function for its intended purpose, and to its design capacity The Association shall provide writien reports regarding major repair or reconstruction o the City in accordance with Cily Requirements 3 Stormwater Budget Line Items & Funding. The dues of the Association shall
ation shall provide writien reports regarding major repair or reconstruction o the City in accordance with Cily Requirements 3 Stormwater Budget Line Items & Funding. The dues of the Association shall include amounts lor upkeep and reconstrucuion of the Facilities which shall be included in dues charged to Lots or members from the point that Lots or members are charged dues for other common purposes The Association shall maintain two (2) separate funds in its budget for the Faciltty/ies 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 matntaincd as part of the Association s general account [he second fund the Mayor 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 Facilityfes The Major Reconstrucuion Fund shall be maintained in an account that 1s separate account from the Assoctation’s general account as described below Ata minimum the Association shall, annually, earmark $9,053 46 [WP1 $2,879 93, WP2 $2,885 53, BRI $3,288 00] from its collected dues for the Inspection and Maintenance Fund and $2,191.77 [WP1 $680 94, WP2 $682 33, BR1 $828 50| lor 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 aller an examination of the Facility/ics The Association shall set dues at a sulficient amount to tund each of the two line items in addition to the Association s other obligations The
of Public Works aller an examination of the Facility/ics The Association shall set dues at a sulficient amount to tund each of the two line items in addition to the Association s other obligations The Association may compel payment of ducs through all remedies provided in this Declaration or otherwise available under law 4 Assessments/Liens In addition to payment of dues, each Lot may be subject lo assessments by the Association for the purpose of fulftiling the Association’s obligations under this Article and under the Stormwater Agreement Such assessments shall be collected in the manner set forth in this Declaration As allowed under NCGS §47F, or successor statutes, or, for condominiums, as allowed under NCGS 47C, or successor statules, all assessment remaining unpaid for thirty (30) days or longer shall constitute a hen 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 beneliciary of the recorded Stormwater Agreement and/or as Attorney in Fact for the Association, as provided in Section 7 of the recorded Stormwater Agreement 5 Stormwater Expenditures Receive Highest Priority Notwithstanding any contrary provisions of the covenants of which this Article 1s a part, to the extent not prohibited by law, the inspection, maintenance, repair, and replacement/reconstruction of the Facility/ies shall receive the highest priority (excluding taxcs and assessments and other statutorily required expenditures) of all Association expenditures 6 Separate Account for Major Reconstruction Fund Engineer’s Report The Association shall maintain the Major Reconstruction Fund for the Facilityfes in an account
tures) of all Association expenditures 6 Separate Account for Major Reconstruction Fund Engineer’s Report The Association shall maintain the Major Reconstruction Fund for the Facilityfes in an account separate from the Association’s general account The Association shall use the Fund only for major repairs and reconstruction of the Facility/ics No withdrawal shall be made trom this fund unless the withdrawal 1s approved by two Association officials who shall execule any documents allowing such withdrawal Prior to withdrawing funds trom this account, the Association shall @) 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 (it) 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 Facility, the proposed date, and the amount to be withdrawn from the Mayor Reconstruction Fund In the event of an emergency, withdrawal and expenditure of funds may be made alter telephone notification to the Stormwater Services Division of the Department 7 Annual Reports to City The Association shall provide to the City annual reports in substance and form as set forth in 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 Owner's Association s affairs. the report shall so indicate The Officer s signature and attestation shall be notarized At a minimum each report shall include 1 the annual Facilities inspections report described in section (a) above,
he report shall so indicate The Officer s signature and attestation shall be notarized At a minimum each report shall include 1 the annual Facilities inspections report described in section (a) above, i a bank or account statement showing the existence of the separate Major Reconstruction Fund described in section (6) above and the balance 1n such fund as of the ume of submission of the report, ul a description of repairs exceeding normal maintenance that have been performed on the Facility/ies in the past year, and the cost of such repairs, Iv the amount of Association dues being set aside for the current year for cach of the two stormwater tunds — the Inspection and Maintenance Fund and the Major Reconstruction Fund 8 Facility/ies to Remain with Association; Owners’ Liability To the extent not prohibited by law, the Facility/ies shall remain the property of the Association and may not be conveyed by the Association In the event the Association ceases to exist or 1s unable to perform its obligations under the Stormwater Agreement, all Owners as defined in the Stormwater Agreement referenced above, excluding the Lots owned by the Association, shall be jointly and severally liable to fullill the Association's obligations under the Stormwater Agreement Such Owners shall have the nght of contribution from other owners with each Lot s pro rata share being calculated as Owner s proportional obligations are otherwise defined in this Declaration The City may also exercise the rights described in Section 7 of the recorded Stormwater Agreement and other remedies provided by law 9 City Rights; Liens Against Owners In addition to nights granted to the City by ordinance or otherwise, the City shall have the following rights, generally summarized below, and
edies provided by law 9 City Rights; Liens Against Owners In addition to nights 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 1 Direct the Association in matters regarding the inspection, maintenance, repair, and /or reconstruction of the Facilily/tes, ul If the Association does not perform the work required by ordinance, by these covenants, and by the Stormwater Agreement referenced above, do such work itself, upon 30 days” written notice to the Association ul Access the Facility/ies for inspection, maintenance, and repair, crossing as necessary the lot(s) on which the Facility/ies are located and all other private and public casemenls that exist within the Property subject to these covenants IV Require reimbursement by the Association of the City s costs in Inspecling, maintaiming, repairing, or reconstructing the Facility/ies, as provided in_ the Stormwater Agreement relerenced above Vv Entorce any debls owed by the Association as described in_ the Stormwater Agreement referenced above against Owners if such debts are not fully paid by the Associalian 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 property may be added to each owner s uulity bills, and may result in foreclosure, as provided in Secuion 7 of the Stormwater Agreement referenced above 10 No Dissolution To the extent not prohibited by law, the Association shall not enter into voluntary dissolution unless the Facility is transferred to a person who has been approved by the City and has executed a Stormwater Agreement with the City assuming the
sociation shall not enter into voluntary dissolution unless the Facility is transferred to a person 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 continue to be hable tor the Facility/ies in the event the Owner s Association 1s dissolved without a new Stormwater Agreement between the City and a responsible party that ts assuming the Associatton’s obligations .
11 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 the restrictive covenants contained in this Article, the Association may not amend or delete this Article with the exception of supplementing its provisions in a more detailed manner to better describe members’ or Owners” obligations regarding each other 12 Stormwater Agreement Supersedes. The Stormwater Agreement referenced above supersedes any limiting provisions contained elsewhere in other Articles of this Declaration However, such Articles may supplement the obligations of the Association as set forth in that Agreement, and/or the obligations of and remedies against individual Owners or members bound by this Declaration Except as amended herein, all terms and provisions of the Declaration remain unmodified As amended herein, the Declaration remains tn Lull torce and effect IN WITNESS WHEREOF, the Declarant has caused this Amendment to be executed, as of the date lirst stated above D.R. HORTON, INC, a Delaware cogporation, Declarant By John Nance, Division Present NORTH CAROLINA COUNTY OF a
R. HORTON, INC, a Delaware cogporation, Declarant By John Nance, Division Present NORTH CAROLINA COUNTY OF a belore me and acknowledged that he 15 a Division President of DR Horton, Inc a Delaware corporation, and that he, as a Division President, being authorized to do so executed the foregoing on behall of the corporation Olficial Signature of Notary Public a eu Notary s Printed or Typed Name, Notary Public WILLIE L COVINGTON REGISTER OF DEEDS, DURHAM COUNTY DURHAM COUNTY COURTHOUSE 200 E MAIN STREET DURHAM, NC 27701 PLEASE RETAIN YELLOW TRAILER PAGE It is part of recorded document, and must be submitted with original for re-recording and/or cancellation RAKE RE RE EE EKEKREKKEEKEKE REE KE RERERREKKREKKREKKRAKREKREKREKREKERKREEN HREAKIKK KAKA ERE AEE EKER AKER EERE REE ERE EAE Filed For Registration 01/28/2013 03:48:15 PM Book: RE 7176 Page: 352-358 Document No 2013003229 DECL 7PGS $2600 Recorder: SHARON M CEARNEL 2013003229