Book8287 - Page31 Page 1 of 59 For Registration Sharon A. Davis Register of Deeds Durham County, NC Electronically Recorded 2017 Oct 11 03:07 PM Book: 8287 Instrument Number: DECL NC Rev Stamp: $ 0.00 Page: 31 Fee: $ 202.00 2017035860 DECLARATION OF COVENANTS, RESTRICTIONS AND EASEMENTS FOR GRANDIN TRACE THIS DOCUMENT REGULATES OR PROHIBITS THE DISPLAY OF POLITICAL SIGNS AND THE FLAG OF THE UNITED STATES OF AMERICA OR STATE OF NORTH CAROLINA Prepared by and return to: Alexander Ricks PLLC (MJH) 4601 Park Road, Suite 580 Charlotte, NC 28209 Submitted electronically by "Alexander Ricks PLLC" in compliance with North Carolina statutes governing recordable documents and the terms of the submitter agreement with the Durham County Register of Deeds.
00683-004/00063363-5 1.
Book8287 - Page32 Page 2 of 59 TABLE OF CONTENTS Page Definitions 1 1.1 Act.
1 1.2 Architectural Review Board 1 1.3 Articles........
1 1.4 Assessments ..
2 1.5 Association Property..
2 1.6 Board...
2 1.7 Bylaws 2 1.8 City or City of Durham.
2 1.9 Class A Member 3 1.10 Class B Member.
3 1.11 Code 3 1.12 Collection..
3 1.13 Common Areas 3 1.14 Common Expenses 3 1.15 Community 3 1.16 County 3 1.17 Declarant..
3 1.18 Declarant Control Period 1.19 Declarant's Permittees.
1.20 Declaration and this Declaration.
1.21 Eligible Mortgagee.
1.22 Fiscal Year..
1.23 1.24 Future Development Property.
Governing Documents.
1.25 Guest 1.26 Improvement 1.27 Include 1.28 Interpretation and Flexibility 1.29 Lot..
1.30 Lot Landscaping.
4 4 4 4 4 5 5 5 5 5 5 5 1.31 Maintain .6 1.32 Member 6 00683-004/00063363-5 Book8287 - Page33 Page 3 of 59 1.33 Mortgage..
1.34 Mortgagee..
1.35 Operating Deficit 1.36 Owner.
1.37 Permitted Users.
1.38 Person 1.39 Property.
1.40 Registry..
1.41 Restore 1.42 Restoration Costs..
1.43 Site Plan..
Page 3 of 59 1.33 Mortgage..
1.34 Mortgagee..
1.35 Operating Deficit 1.36 Owner.
1.37 Permitted Users.
1.38 Person 1.39 Property.
1.40 Registry..
1.41 Restore 1.42 Restoration Costs..
1.43 Site Plan..
1.44 Stormwater Covenant 1.45 Stormwater Facilities ..
1.46 1.47 1.48 Stormwater Facilities Manual.
Subdivision Plat.
Supplemental Declaration.
1.49 Tenant 1.50 Unit 2.
1.51 Working Capital Contribution General Plan of Development..
2.1 General Plan..
2.2 Legal Description...
2.3 Future Development.
2.4 Supplements..
2.5 Withdrawal..
2.6 Disclaimer of Implication.
2.7 Amendment...
3.
Common Area Provisions.
3.1 Common Areas 3.2 Prior to Conveyance..
3.3 Conveyance or Dedication of Common Areas 3.4 Operation After Conveyance.
3.5 Taxes.............
3.6 Assumption of Risk 3.7 Negligence 00683-004/00063363-5 6 6 6 6 .6 6 6 .7 7 7 7 7 7 7 7 8 8 8 9 10 10 10 10 11 11 11 12 12 12 Book8287 - Page34 Page 4 of 59 4.
3.8 Partition.
Membership. Governance and Voting Rights in the Association.
12 12 4.1 Membership 13 4.2 Voting Rights.
13 4.3 Modifications.
14 4.4 General Matters..
14 5.
5.1 Certain Easements and Rights.
Owners' Rights of Use..
14 14 5.2 Limitations on Use of Common Areas 14 5.3 Right to Grant or Relocate Easements.
15 5.4 Association Easements Over Lots and Units.
16 5.5 Utility Easements.
16 5.6 Access for Governmental Agencies; Service and Emergency Easements..
16 5.7 Easements for Pedestrian and Vehicular Traffic.
16 5.8 Encroachments; Easements.
17 5.9 Utility and Other Services; Stormwater Facilities 17 5.10 Easements of Support .
18 5.11 6.
6.1 Easements Appurtenant.
Functions of the Association..
Powers and Duties.
18 18 18 6.2 Assessments 18 6.3 Maintenance of Other Property..
18 6.4 Rules 18 6.5 Borrowing 19 6.6 Marketing..
19 6.7 Special Events..
19 6.8 7.
nt.
Functions of the Association..
Powers and Duties.
18 18 18 6.2 Assessments 18 6.3 Maintenance of Other Property..
18 6.4 Rules 18 6.5 Borrowing 19 6.6 Marketing..
19 6.7 Special Events..
19 6.8 7.
Indemnification..
Maintenance of Improvements, Units, Lots and Common Areas.
19 19 7.1 Exterior of Improvements.
19 7.2 Lot Landscaping .
20 7.3 Remedies for Noncompliance...
20 7.4 Costs of Remedial Work; Surcharges.
20 7.5 Right of Entry; Right to File Notices of Lien Rights...
20 7.6 Standards for Maintenance; Restoration.
21 7.7 Other Maintenance Services 21 00683-004/00063363-5 Book8287 - Page35 Page 5 of 59 7.8 Common Area Maintenance.
21 7.9 Maintenance of Stormwater Facilities.
22 7.10 Street Lighting.
22 8.
Insurance 22 8.1 Insurance by the Association 22 8.2 Other Insurance to be Maintained by the Association 23 9.
Obligations Regarding Stormwater Facilities..
24 9.1 General.
24 9.2 Inspections/Routine Maintenance.
24 9.3 Repair and Reconstructions.
24 9.4 Stormwater Budget Line Items & Funding….
25 9.5 Assessments/Liens .
25 9.6 Stormwater Expenditures Receive Highest Priority.
25 9.7 Separate Account for Major Reconstruction Fund..
25 9.8 Annual Reports to City.
25 9.9 Facility/ies to Remain with Association; Lot Owners' Liability.
26 9.10 City Rights; Liens Against Owners 26 9.11 No Dissolution 26 9.12 No Amendment..
27 10.
Covenant for Assessments and Other Amounts..
24 10.1 Obligation for Assessments.
24 10.2 Purpose of Assessments.
24 10.3 Classes of Membership..
24 10.4 Amount of Assessments, 24 10.5 Budgets 24 10.6 Common Assessments.
25 10.7 Special Assessments for Common Expenses..
26 10.8 Individual Assessments.
26 10.9 Future Development Property.
26 10.10 Due Dates..
26 10.11 Disapproval of Budgets .
.27 10.12
mon Assessments.
25 10.7 Special Assessments for Common Expenses..
26 10.8 Individual Assessments.
26 10.9 Future Development Property.
26 10.10 Due Dates..
26 10.11 Disapproval of Budgets .
.27 10.12 Determination of Default Budget and Default Assessments 27 10.13 Certificate of Payment .27 10.14 Monetary Defaults and Collection of Assessments 10.15 Collection of Assessments.
.29 22 27 00683-004/00063363-5 11.
Book8287 - Page36 Page 6 of 59 10.16 Priority of Liens.
10.17 Association's Rights to Collect Rents.
10.18 Use of Common Areas..
10.19 Common Areas and Certain Other Property.
10.20 Declarant's Right to Fund Deficits; Credit for Overpayments 10.21 Association Working Capital Fund..
10.22 Declarant Subsidy.
10.23 Association Funds.
Certain Restrictions, Rules and Regulation 11.1 Applicability 11.2 Land Use and Building Type.
11.3 11.4 Easements Nuisances.........
11.5 Temporary Structures 11.6 Signs 11.7 Pets, Livestock and Poultry..
11.8 Commercial Trucks, Trailers, Campers and Boats 11.9 Garbage and Trash Disposal.
11.10 Alleys.
11.11 Sight Triangles..
11.12 Seasonal or Holiday Decorations….
11.13 Exterior Antennas, Etc..
11.14 Trees, Shrubs and Artificial Vegetation...
11.15 Games and Play Structures.
11.16 Fences and Walls.
11.17 Utility Connections.
11.18 Off-Street Motor Vehicles.
12.
13.
11.19 Additional Use Restrictions .
11.20 Exemption for Declarant.
Compliance and Enforcement...
12.1 12.2 Compliance by Owners.
Enforcement..
12.3 Individual Assessments; Suspension of Rights.
Development Review; General Powers.
13.1 Members of ARB.
00683-004/00063363-5 30 30 31 31 31 32 32 32 33 33 33 33 33 33 .33 34 34 35 35 35 36 36 36 36 37 37 37 37 37 38 38 38 38 39 39 Book8287 - Page37 Page 7 of 59 13.2 Review of Proposed Construction.
40 13.3 Meetings of the ARB.
30 31 31 31 32 32 32 33 33 33 33 33 33 .33 34 34 35 35 35 36 36 36 36 37 37 37 37 37 38 38 38 38 39 39 Book8287 - Page37 Page 7 of 59 13.2 Review of Proposed Construction.
40 13.3 Meetings of the ARB.
.40 13.4 No Waiver of Future Approvals .41 13.5 Inspection of Work .41 13.6 Non-Liability of ARB Members.
.41 13.7 Restrictions on Contractors, Workers.
.42 13.8 Exemptions 42 14.
Additional Special Declarant Rights..
42 14.1 General..
.42 14.2 Easement..
44 14.3 Injunctive Relief for Interference...
44 15.
Leasing and Occupancy of Units.
.44 15.1 Residential Use Only.
.44 15.2 Leased Units 44 15.3 Owner Responsible for Conduct of Permitted Users.
45 15.4 Use of Common Areas..
.45 15.5 Declarant's Use...
45 16.
Additional Rights of Eligible Mortgagees.
45 16.1 Books and Records.
.45 16.2 Notice to Eligible Mortgagees.
.45 16.3 Approval of Eligible Mortgagees..
46 16.4 Payment of Taxes and Insurance Premiums.
.47 17.
Amendments.
.47 17.1 By the Declarant .47 17.2 By the Association .
.47 17.3 Scrivener's Errors .47 17.4 Limitations on Amendments Affecting Declarant Rights.
47 17.5 Amendments Required by Secondary Mortgage Market.
47 17.6 Mortgagee's Consent.
48 17.7 Effective Date.
48 17.8 Challenge..
48 18.
19.
Effect and Duration of Covenants..
General Provisions..
48 49 19.1 Exculpation 49 19.2 Notice..
.49 00683-004/00063363-5 Book8287 - Page38 Page 8 of 59 19.3 Severability 49 19.4 Performance of Association's Duties by Declarant.
49 19.5 Conflict 49 19.6 Effective Date 49 19.7 Standards for Consent, Approval, Completion, Other Action and Interpretation.........
49 19.8 Easements 50 19.9 CPI..
50 19.10 Attorneys' Fees; Enforcement Costs 19.11 Construction and Other Activities 19.12 Covenants Running with the Land..
19.13 Notices and Disclaimers as to Water Bodies
9.8 Easements 50 19.9 CPI..
50 19.10 Attorneys' Fees; Enforcement Costs 19.11 Construction and Other Activities 19.12 Covenants Running with the Land..
19.13 Notices and Disclaimers as to Water Bodies 19.14 Principles of Interpretation and Definitions.
Exhibit A Exhibit B 50 50 51 51 52 00683-004/00063363-5 Book8287 - Page39 Page 9 of 59 DECLARATION OF COVENANTS, RESTRICTIONS AND EASEMENTS FOR GRANDIN TRACE THIS DECLARATION OF COVENANTS, RESTRICTIONS AND EASEMENTS FOR GRANDIN TRACE ("Declaration") is made as of October 10, 2017, by TAYLOR MORRISON OF CAROLINAS, INC., a North Carolina corporation (“Declarant”).
RECITALS A. The Declarant is the owner of that certain property located in Durham County, North Carolina, described in Exhibit A hereto (the "Property"). The Declarant intends that various portions of the Property be set aside for the collective use of the owners and residents of the planned community known as Grandin Trace to be created on the Property.
B.
In order to preserve and enhance the value of the homes built on the Property and to promote the welfare of their owners and occupants, the Declarant desires to submit the Property to this Declaration.
C. In order to facilitate the objectives described herein, the Declarant has formed a North Carolina non-profit corporation called Grandin Trace Homeowners Association, Inc. ("Association”), which shall be responsible for the enforcement and performance of certain obligations under this Declaration.
NOW, THEREFORE, Declarant declares that the Property, together with such additions thereto as are hereafter made pursuant to Article 2 of this Declaration, shall be held, transferred, sold, conveyed, leased, mortgaged, used, occupied and improved subject to the easements, covenants, conditions,
re hereafter made pursuant to Article 2 of this Declaration, shall be held, transferred, sold, conveyed, leased, mortgaged, used, occupied and improved subject to the easements, covenants, conditions, restrictions, servitudes, charges and liens created or provided for by this Declaration.
1. DEFINITIONS. As used in this Article, the following words and terms have the following definitions, unless the context in which they are used clearly indicates otherwise. Some or all of the following words and terms may have the same definitions in other portions of this Declaration; if so, they are being repeated here for convenience; if not, as used in this Article, they have the definitions contained in this Article.
1.1.
“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.
1.2.
13 hereof.
1.3.
"Architectural Review Board” or “ARB” means the committee created pursuant to Article "Articles" means the Articles of Incorporation of the Association which have been filed in the office of the Secretary of the State of North Carolina, as amended from time to time.
1.4.
“Assessment” means any of the types of assessments defined below in this Section.
1.4.1. "Common Assessment” means the amounts charged to each Lot subject to assessment by the Association under Article 10, representing the Lot's share of the Common Expenses as determined in accordance with Sections 10.5 and 10.6.
00683-004/00063363-5 1.4.2. “Individual Assessment” means the amounts charged to one or more Lots by the Book8287 - Page40 Page 10 of 59
penses as determined in accordance with Sections 10.5 and 10.6.
00683-004/00063363-5 1.4.2. “Individual Assessment” means the amounts charged to one or more Lots by the Book8287 - Page40 Page 10 of 59 Association in connection with (.1) the enforcement of the Governing Documents as a result of the acts or omissions of the Owner or Permitted Users of a Lot, their respective agents, contractors, subcontractors, employees, licensees or invitees for their failure to duly perform their obligations under the Governing Documents, (2) reimbursing the Association for expenses incurred by the Association due to that Owner's failure to Maintain his Lot or Unit pursuant to the standards set forth in this Declaration, (.3) reimbursing the Association for injury, loss or damage to the Association or to any Common Area, Association Property or other Lot caused by the Owner or Permitted Uses, or their respective agents, contractors, subcontractors, employees, licensees or invitees, and not covered by insurance, or (.4) for any other purpose expressly authorized by this Declaration.
1.4.3. "Special Assessment” means and includes the following: the amounts charged to each Lot subject to assessment by the Association for any of the following purposes: (.1) unbudgeted expenses or expenses in excess of the amounts budgeted; (2) expenses incurred by the Association for repair, replacement or reconstruction of any Improvements on any portion of the Common Areas or Association Property; or (.3) expenses incurred by the Association for installation or construction of any Improvements in the nature of a capital improvement on any portion of the Common Areas or Association Property.
If Special Assessments are assessed for Common Expenses or for any purpose identified in clause
ments in the nature of a capital improvement on any portion of the Common Areas or Association Property.
If Special Assessments are assessed for Common Expenses or for any purpose identified in clause (.2) or (3) above, they shall be assessed against all Lots subject to assessment under Article 10.
1.5. “Association Property” means all personal property owned by the Association. Association Property shall also include all personal property in which the Association holds possessory or use rights.
1.6. "Board" or "Board of Directors" 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.
1.7. "Bylaws" means the Bylaws of the Association adopted by the Board, as amended from time to time.
1.8.
"City" or "City of Durham” means the City of Durham, North Carolina, a North Carolina municipal corporation.
1.9. “Class A Member” shall have the meaning set forth in Section 4.2.1.
1.10.
"Class B Member" shall have the meaning set forth in Section 4.2.2.
1.11. "Code" means the Code of Ordinances for the City of Durham, as amended and supplemented from time to time.
1.12.
"Collection" means a group of Units having similar features or characteristics which are designated as such by an amendment hereto or in a Supplemental Declaration. A group of Units may be designated as a separate Collection for purposes of receiving goods, services or benefits that are not provided to all of the Units, or are provided at a different level or frequency. A Collection may be comprised of more than one group of Units or type of Improvement within the Property and the Lots within the Collection need not be
are provided at a different level or frequency. A Collection may be comprised of more than one group of Units or type of Improvement within the Property and the Lots within the Collection need not be contiguous or adjacent. For so long as the Declarant or its affiliates own any portion of the Community, the Lots within any Collection shall be determined by the Declarant in its reasonable discretion and thereafter by the Association.
00683-004/00063363-5 2 Book8287 - Page41 Page 11 of 59 1.13. “Common Areas" means all real property and interests in real property, together with any Improvements situated thereon, intended for the common use and benefit of the Association, the Owners, and/or the Permitted Users of the Property, and designated as a Common Area in this Declaration, on a Subdivision Plat or other document recorded in the Registry. For avoidance of any doubt, the Common Areas shall include any private streets or alleys within the Community. Common Areas may be owned or leased by the Association or dedicated to the Association on a Subdivision Plat or may be owned by another Person with the Association having a right or easement therein (for example, part or all of a private stormwater drainage easement located on either a Lot or real property that is not part of the Property and that serves more than one (1) Lot or a right of the Association to use of a portion of a public street right of way pursuant to an encroachment agreement with the City of County).
1.14. "Common Expenses" means all of the actual and estimated expenses of the Association for owning, leasing, administering, Maintaining, managing, operating, insuring, repairing, and replacing the Common Areas and Association Property (including unpaid Common Assessments and Special Assessments not paid
ing, administering, Maintaining, managing, operating, insuring, repairing, and replacing the Common Areas and Association Property (including unpaid Common Assessments and Special Assessments not paid by the Owner responsible for payment), and performing its rights and responsibilities under the Act and the Governing Documents, together with any other expenses incurred by the Association as are specifically provided for elsewhere in this Declaration or are otherwise reasonably incurred by the Association in connection with the Association, Common Areas or Association Property or for the benefit of the Owners and their Permitted Users.
1.15. “Community" means that planned community known as Grandin Trace and depicted on the Site Plan.
1.16.
1.17.
"County" means Durham County, North Carolina.
"Declarant" means Taylor Morrison of Carolinas, Inc., a North Carolina corporation, its successors and those assigns to which the Declarant may assign all or a portion of its rights hereunder in a written assignment recorded in the Registry. In the event of a partial assignment, the assignee shall not be deemed the Declarant, but may exercise such rights of Declarant specifically assigned to it. Any such assignment may be made on a nonexclusive basis.
1.18. “Declarant Control Period” means as any period of Declarant control of the Association, as provided in 3-103(d) of the Act and established in this Declaration. For purposes of this Declaration and other Governing Documents, “Declarant Control Period” refers to the period during which the Declarant shall have the right to control the Association and appoint all of the Board of Directors. The Declarant Control Period shall expire on first to occur of the following events: 1.18.1. December 31, 2047;
all have the right to control the Association and appoint all of the Board of Directors. The Declarant Control Period shall expire on first to occur of the following events: 1.18.1. December 31, 2047; 1.18.2. The later of 120 days or the annual meeting following the date on which one hundred (100%) percent of the Units in all phases of the Community that may ultimately be subject to this Declaration have been conveyed to Class A Members; or 1.18.3. When the Declarant records a notice in the Registry expressly terminating its Class B membership.
1.19. "Declarant's Permittees" means the Declarant's officers, directors, partners, joint venturers, managing members (and the officers, directors and employees of any such corporation, partnership, joint 00683-004/00063363-5 3 Book8287 Page42 Page 12 of 59 venture or limited liability company), employees, beneficiaries, agents, independent contractors (including both general contractors and subcontractors), suppliers, visitors, licensees and invitees and those of any affiliate of the Declarant.
1.20. "Declaration" and "this Declaration” mean (and, except as otherwise provided in Section 1.28, "herein", "hereto", "hereof", "hereunder" and words of similar import shall refer to) this document together with all exhibits and amendments to the document and Supplemental Declarations thereto.
1.21.
“Eligible Mortgagee” means a First Mortgagee which owns, services, insures or guarantees a First Mortgage encumbering a Unit which has notified the Association in writing of its name and address and status as a holder, insurer or guarantor of a First Mortgage. Such notice will be deemed to include a request that the Eligible Mortgage Holder be given the notices and other rights described in Article 16.
as a holder, insurer or guarantor of a First Mortgage. Such notice will be deemed to include a request that the Eligible Mortgage Holder be given the notices and other rights described in Article 16.
1.22. "Fiscal Year” means the calendar year until such time as the Board, by appropriate resolution, establishes a different Fiscal Year for the Association.
1.23. "Future Development Property" means the real property more particularly described in Exhibit B attached hereto, as amended from time to time, which may be developed as Lots, Units or Common Areas; however, the boundaries, location, size, configuration, and uses of any such Lots, Units, and Common Areas have not been determined as of this Declaration. The Declarant has no obligation to declare all or any portion of the Future Development Property to be Lots, Units or Common Areas.
1.24.
“Governing Documents" means collectively this Declaration (including any Supplemental Declaration), Articles, Bylaws, architectural guidelines and the rules and regulations of the Association and all exhibits to any of the foregoing, all as they may be amended, restated or supplemented from time to time.
1.25. “Guest” means any Person who is physically present in or occupies a Unit on a permanent or temporary basis at the invitation of the Owner or Tenant without the payment of consideration. Any Person who is physically present in or occupies a Unit at the invitation of the Owner or Tenant for consideration shall be deemed a "Tenant."
1.26.
“Improvement” means any structure or artificially created condition or appurtenance located on the Property, including any building constructed on any Lot, any additions and structural alterations to any Unit
ment” means any structure or artificially created condition or appurtenance located on the Property, including any building constructed on any Lot, any additions and structural alterations to any Unit or Lot, any walkway, sprinkler pipe, road, driveway, parking area, fence, screening wall, retaining wall, stairway, deck, landscaping, hedge, fountain, tree, planting, shrub, windbreak, pole, swimming pool, pool deck, sign, screen enclosure, sewer, drain, disposal system, grading, paving, or exterior heating, ventilating or air-conditioning equipment or water softener fixture or equipment.
1.27. "Include," "includes,” or “including" is intended to include of the particular matter described and to be interpreted as if it were followed by either the phrase "without limitation” or “but not limited to," unless otherwise clearly obvious from the context.
1.28. Interpretation and Flexibility. In the event of any ambiguity or question as to whether any Person, property or Improvement falls within any of the definitions set forth in this Article 1, the determination made by Declarant in such regard (as evidenced by a recorded Supplemental Declaration stating same) shall be binding and conclusive. Moreover, Declarant may also, by way of Supplemental Declaration, alter or amend the application of any portion of this Declaration as to any specified portion(s) of the Property to reflect any unique characteristics thereof. Provided, however, such altered or amended application may not 00683-004/00063363-5 Book8287 Page43 Page 13 of 59 go so far as to be unequivocally contrary to the overall, uniform scheme of development for the Property contemplated in this Declaration.
1.29. "Lot" means that portion of the Property (.1) which is developed or intended for development, use
to the overall, uniform scheme of development for the Property contemplated in this Declaration.
1.29. "Lot" means that portion of the Property (.1) which is developed or intended for development, use and occupancy as a Unit and is shown as a numbered or letter parcel on any Subdivision Plat of any part or all of the Property and is declared to be a Lot in this Declaration or a Supplemental Declaration and (.2) which is not a Common Area, dedicated street or transit right of way, or greenway or park lands owned in fee simple by the City or County. The Declarant may declare a portion of the Property to be a “Lot” subject to the Governing Documents on a Subdivision Plat, replat, or by this Declaration, any Supplemental Declaration or any other recorded instrument. The term “Lot" shall include any Unit constructed thereon.
No portion of the Future Development Property shall be deemed to be a Lot unless and until it is expressly declared to be a Lot in a Supplemental Declaration.
1.30.
"Lot Landscaping" means the following portions of a Lot which are Maintained by the Association, if any, but only to the extent as determined from time to time by the Board: the grass, shrubs, trees and other landscaping materials located in the front, side or back yards. Neither the Declarant, nor the Association shall have any obligation to install any irrigation lines or facilities serving the Lots. Lot Landscaping does not include any spa, pool, fountain, patio, courtyard paving, screening, or any landscaping within an enclosed or gated area (except as otherwise set forth in Section 7.2 below) or similar Improvement located on a Lot.
1.31. "Maintain." "Maintenance,” “Maintaining.” or any similar term used in this Declaration includes
area (except as otherwise set forth in Section 7.2 below) or similar Improvement located on a Lot.
1.31. "Maintain." "Maintenance,” “Maintaining.” or any similar term used in this Declaration includes any one or more of the following, as the context requires: acquisition, purchase, construction, reconstruction, installation, maintenance, inspection, examination, upkeep, cleaning, renewal, alteration, repair, replacement, repainting, remodeling, restoration, removal, improvement, administration, operation, use, planting, mowing, cutting, trimming, pruning, fertilizing, watering and preservation.
1.32. "Member" means each Person who or which holds membership in the Association by virtue of his ownership of a Lot.
1.33. "Mortgage" means any mortgage or deed of trust encumbering a portion of the Property, including a Lot. "First Mortgage" means any recorded Mortgage with first priority or seniority over other Mortgages on a particular portion of the Property.
1.34. “Mortgagee” means any beneficiary, payee or holder of any Mortgage, and the term Mortgage is deemed to refer to both mortgages and deeds of trust. “First Mortgagee” means any beneficiary, payee of holder of a First Mortgage.
1.35.
“Operating Deficit” means the difference between the total amount of the Assessments for a Fiscal Year levied on all Lots and the amount of actual expenditures by the Association during the Fiscal Year for Common Expenses, including funding of reserves, but excluding (1) amounts levied against a Lot, but which are not paid, and (2) Special Assessments for capital improvements.
1.36. "Owner" means the record Owner, whether one or more Persons, of fee simple title to any Lot or Future Development Property, and shall include Declarant as to any Lot or Future Development Property
36. "Owner" means the record Owner, whether one or more Persons, of fee simple title to any Lot or Future Development Property, and shall include Declarant as to any Lot or Future Development Property owned by Declarant. "Owner" shall not include any Person who holds an interest in a Lot or Future Development Property merely as security for the performance of an obligation or as a Tenant or as a purchaser under an executory contract of sale.
00683-004/00063363-5 5 Book8287 Page44 Page 14 of 59 1.37. "Permitted Users" means the Tenants or Guests of an Owner.
1.38. “Person" includes any natural person, corporation, business trust, estate, trust, partnership, limited liability company, association, joint venture, governmental entity (including the City), or other entity.
1.39. "Property" means, collectively, all of the real property and interests in real property subject to any part or all of the terms of this Declaration. The Property is legally described in Exhibit A hereto (including all Improvements thereon), plus whatever additional real property (together with all Improvements thereon) is declared to be Property in any Supplemental Declaration, less whatever portions of the Property (together with all Improvements thereon) are declared to be withdrawn from the provision of this Declaration in any Supplemental Declaration.
1.40. “Registry" means the office of the Durham County Register of Deeds (or any successor office under applicable law). All references herein to recording or to any requirement to record a document or Subdivision Plat refer to recording in the Registry of the County or Counties in which the applicable portion of the Property is situated.
1.41.
"Restore," "Restoration,” Restoring” or any similar term used in this Declaration includes any one
Registry of the County or Counties in which the applicable portion of the Property is situated.
1.41.
"Restore," "Restoration,” Restoring” or any similar term used in this Declaration includes any one or more of the following, as the context requires: debris removal, alteration, re-construction, installation, inspection, examination, repair, replacement, repainting, restoration of an Improvement lost or damaged by fire or other casualty, deterioration or obsolescence, or any taking by condemnation or eminent domain proceedings.
1.42. “Restoration Costs" shall have the meaning set forth in Section 9.4.
1.43. "Site Plan" means the graphic representation of the proposed plan for development of the Community depicted on the Site Plan for Grandin Trace, as approved by the City and/or County, as amended from time to time. The Declarant reserves the right to alter or modify the Site Plan as it deems desirable in its sole discretion.
1.44. "Stormwater Covenant” means any covenant recorded in the Registry as required by the Code, or otherwise, relating to Stormwater Facilities for the Property or any part thereof, and includes all amendments and supplements to such agreements. For avoidance of any doubt, that certain Stormwater Facility Agreement and Covenants (Residential Version) between Declarant, Association, and City recorded, or to be recorded, in the Durham County Public Registry is a Stormwater Covenant.
1.45.
"Stormwater Facilities” shall have the meaning ascribed to "Facility/ies" set forth in the Stormwater Covenant, together with any one or more of the following devices and measures that serve the Property: conduits, inlets, channels, pipes, level spreaders, ditches, grassed swales, sand filters, wet ponds, dry
, together with any one or more of the following devices and measures that serve the Property: conduits, inlets, channels, pipes, level spreaders, ditches, grassed swales, sand filters, wet ponds, dry detention basins, wetlands, permanently protected undisturbed open space areas, bio-retention areas, retention or detention ponds, and other devices and measures, necessary to collect, convey, store, and control stormwater runoff and pollutants for more than one (1) Lot in the Property, and which are located outside public street rights-of-way and drainage easements. All Stormwater Facilities are Common Area.
For avoidance of any doubt, the Stormwater Facilities shall include one constructed wetland (CW) with a drainage area of approximately 12.70 acres, a design storm surface area of approximately 21,184 square feet, and a design storm storage volume of approximately 18,999 cubic feet.
1.46.
"Stormwater Facilities Manual” means that manual, however named, referenced in the Stormwater Covenant as establishing the requirements for maintenance of Stormwater Facilities.
00683-004/00063363-5 6 Book8287 Page45 Page 15 of 59 1.47.
“Subdivision Plat” means any recorded graphic representation drawn to scale showing the showing the location and geographic boundaries of individual lots, tracts, parcels, blocks, subdivisions, open spaces, rights of way, easements and, if applicable, common areas for all or portions of the Community, as approved by the City and/or County, as amended from time to time. The Declarant reserves the right to alter, modify or replat all or any portion of a Subdivision Plat as it deems desirable in its sole discretion.
1.48.
“Supplemental Declaration” means any instrument recorded by the Declarant or the Association in
y or replat all or any portion of a Subdivision Plat as it deems desirable in its sole discretion.
1.48.
“Supplemental Declaration” means any instrument recorded by the Declarant or the Association in the office of the Registry for the purpose of: adding additional property to the Property; declaring Future Development Property or other property to be Lots, Units, Collections or Common Areas; requiring the Association to perform Lot Landscaping for portions of the Property; withdrawing property from the Property; or changing the designation of certain property as Lots, Units, Collections, Common Areas or Future Development Property.
1.49.
"Tenant” means any Person who is physically present in or is entitled to occupy a Unit in exchange for consideration. Tenants shall not be Members of the Association, but shall, through the Owner, be entitled to certain rights and undertake certain obligations with respect to the Unit.
1.50.
“Unit" means a Lot on which has been constructed an Improvement intended for use as a single residential dwelling unit.
1.51. “Working Capital Contribution" shall have the meaning set forth in Section 10.21.
2.
GENERAL PLAN OF DEVELOPMENT; PROPERTY SUBJECT TO THIS DECLARATION; ADDITIONS THERETO.
2.1.
General Plan. Declarant is the owner of the Property. Declarant presently plans to develop all or a portion of the Property as a multi-phased, planned community comprised of residential, recreational and related uses.
2.2. Legal Description. The legal description of the Property is provided on Exhibit A attached hereto. The real property and Improvements thereto described in Exhibit B attached hereto are designated as "Future Development Property."
2.3. Future Development. Declarant does not represent or warrant that the development shown
Improvements thereto described in Exhibit B attached hereto are designated as "Future Development Property."
2.3. Future Development. Declarant does not represent or warrant that the development shown in any Site Plan, drawings, renderings, plans or models for the Future Development Property will be carried out or that the Future Development Property will actually be developed or built. Any Site Plan or drawings, renderings, plans or models for the Future Development Property are conceptual in nature and do not represent a final development or improvement plan. No portion of the Future Development Property shall be deemed to be a Lot, Unit, Collection or Common Area unless and until it is declared to be such in a Supplemental Declaration executed by the Declarant and the Owner of the Future Development Property if other than the Declarant. The Declarant has no obligation to declare all or any portion of the Future Development Property to be Lots, Units, a Collection or Common Areas.
The Owners acknowledge, covenant and agree that Declarant will have no liability to the Owners for any changes to, or failure to complete any development or Improvements in accordance with the Site Plan, or any drawings, renderings, plans or models. Each Owner acknowledges that the development of the Property may extend over a number of years, and agrees and consents to all changes in the uses or density 00683-004/00063363-5 7 Book8287 Page46 Page 16 of 59 of Units within the Property and the architectural scheme of the Property. Each Owner acknowledges and agrees that the Owner is not entitled to rely upon, and has not received or relied upon, any representations, warranties, or guarantees whatsoever as to the current or future: (1) design, construction, completion,
he Owner is not entitled to rely upon, and has not received or relied upon, any representations, warranties, or guarantees whatsoever as to the current or future: (1) design, construction, completion, development, use, benefits, or value of land within the Property; (.2) number, types, sizes, prices, or designs of any Unit, structure, building, facilities, amenities or improvements built or to be built in any part of the Property; or (.3) use or development of any land adjacent to or in the vicinity of the Property.
2.4. Supplements. Declarant has the right, but not the obligation, to develop the land constituting the Property in "phases" from time to time and to declare such portions of the Property to be Lots, Units, a Collection or Common Areas by Supplemental Declaration. As long as the Declarant owns any property in the Community, the Declarant may designate as “Property” other land in the Community or any adjacent property (including the Improvements thereon) by recording Supplemental Declarations, which shall not require the consent of then-existing Owners or the Association. If Declarant is not the owner of the land to be added to the Property as of the date the applicable Supplemental Declaration is to be made, then the owner(s) of such land shall join in such Supplemental Declaration. Once so added, such land shall be deemed a part of the Property for all purposes of this Declaration, except as modified pursuant to Section 1.28 hereof, if at all. Nothing in this Declaration shall, however, obligate Declarant to add to real property designated as the Property or to develop the Future Development Property or any other real property (adjacent or otherwise) under the common scheme contemplated by this Declaration, nor to prohibit
ty designated as the Property or to develop the Future Development Property or any other real property (adjacent or otherwise) under the common scheme contemplated by this Declaration, nor to prohibit Declarant (or the applicable Declarant-affiliated Owner) from changing the development plans with respect to the Property.
All Owners by acceptance of their deeds to or other conveyances of their Lots thereby automatically consent to any such change, addition, withdrawal or deletion thereafter made by the Declarant (or the applicable Declarant-affiliated Owner thereof) and shall evidence such consent in writing if requested to do so by the Declarant at any time (provided, however, that the refusal to give such written consent shall not obviate the general effect of this provision).
Any such Supplemental Declaration may submit the Property added by it to such additions to and modifications of the Governing Documents as may be necessary or convenient in the Declarant's judgment to reflect or adapt to any changes in circumstances or difference in the character of the added properties or Improvements thereon.
The Declarant reserves the right to modify the voting interests, Assessment rates and Assessment commencement dates by Supplemental Declaration.
2.5.
Withdrawal. Declarant reserves the right to amend this Declaration unilaterally at any time, without the consent of any Owner, for the purpose of removing any portion of the Property then owned by the Declarant or its affiliates or the Association from the provisions of this Declaration for any reason. Any withdrawal of land not owned by Declarant shall not be effective without the written consent or joinder of the then-owner(s) of the withdrawn land.
e provisions of this Declaration for any reason. Any withdrawal of land not owned by Declarant shall not be effective without the written consent or joinder of the then-owner(s) of the withdrawn land.
2.6. Disclaimer of Implication. Only the Property described in Exhibit A hereto is submitted to the Governing Documents by this Declaration. Unless and until a Supplemental Declaration is recorded in the fashion required by Section 2.4 with respect to it, no other portion of the Community, if any, shall be in any way affected by the Governing Documents, and every such portion may be freely sold, conveyed or otherwise disposed of by their owner or owners free and clear of the Governing Documents.
2.7.
00683-004/00063363-5 Amendment. This Article 2 shall not be amended without the prior written consent of the Book8287 - Page47 Page 17 of 59 Declarant, so long as Declarant (or any of its affiliates) owns any portion of the Community.
COMMON AREA PROVISIONS.
3.
3.1.
Common Areas. Certain portions of the Property are designated as Common Areas and are designed and intended for the common, non-exclusive use of the Declarant, Owners of all Lots, and all of the respective Permitted Users and invitees of the Declarant and the Owners, all as provided and regulated herein or otherwise by the Association. Declarant shall have the right, subject to obtaining all required governmental approvals and permits, to construct on the Common Areas such facilities as Declarant deems appropriate. The timing and phasing of all such construction shall be solely within the discretion of Declarant.
Without limiting the generality of Section 1.28, in the event that Declarant determines that a particular portion of the Property is or is not a Common Area hereunder (in the manner provided in Section
ithout limiting the generality of Section 1.28, in the event that Declarant determines that a particular portion of the Property is or is not a Common Area hereunder (in the manner provided in Section 1.28), such determination shall be binding and conclusive. It is specifically contemplated that the Common Areas may change from time to time in connection with changes in development plans and other factors not now known (including by increase, decrease or transfer to a governmental entity). Accordingly, references in this Declaration to the Common Areas shall be deemed to refer to the Common Areas as they may exist as of the relevant time.
3.1.1. This Declaration is subject to any other easement currently of record which affects any of the Property. Any easement in favor of the Association and its benefits and burdens shall be deemed Common Area. Additionally, Declarant reserves on behalf of the Association the right to accept any easements in favor of the Association over, under, across or through any portion of the Property or real property which abuts or is adjacent to the Property, and such easements shall be deemed Common Area to the extent of such easements created. Any real property shall be considered adjacent to or abutting the Property even though a street, lake, canal or similar geographic separation may lie between any of such properties.
3.1.2. Declarant will endeavor to specifically identify (by recorded legal description, signage, physical boundaries, site plans or other means) the Common Areas of the Property, but such identification shall not be required in order for a portion of the Property to be Common Area hereunder.
The Association need not have fee simple title to a portion of the Property in order for such portion to be
on shall not be required in order for a portion of the Property to be Common Area hereunder.
The Association need not have fee simple title to a portion of the Property in order for such portion to be designated as a Common Area.
3.2.
Prior to Conveyance. The Owners shall have no right in or to any portion of the Community unless and until same is declared to be a Common Area in this Declaration or any Supplemental Declaration and actually constructed, completed, and conveyed to, leased by, dedicated to, and/or Maintained by the Association. The Declarant has no obligation or responsibility to construct or supply any such Common Area of the Association, and no party shall be entitled to rely upon any statement contained in this Declaration as a representation or warranty as to the extent of the Common Areas to be owned, leased by, or dedicated to the Association. So long as Declarant (or any of its affiliates) owns any portion of the Community, the Declarant shall retain the right to add to, delete from, and modify any of the Common Areas.
3.3. Conveyance or Dedication of Common Areas. Except for those areas which the Code requires be conveyed to the City or County, the Common Areas shall be conveyed to the Association, subject to this Declaration, drainage, greenway, utility, conservation and other easements, restrictions, reservations, conditions, limitations, and declarations of record at the time of conveyance, zoning, land use 00683-004/00063363-5 9 Book8287 Page48 Page 18 of 59 regulations and survey matters and the lien of real property taxes not yet due and payable. Title to Common Areas shall be conveyed to the Association at such time as may be determined by Declarant in its sole
ns and survey matters and the lien of real property taxes not yet due and payable. Title to Common Areas shall be conveyed to the Association at such time as may be determined by Declarant in its sole discretion, or when required by the Code or Act. The Association shall accept all Common Areas deeded to it and/or dedicated to it on any recorded Subdivision Plat of the Property, including any Improvements installed thereon by Declarant, whether or not the conveyance or dedication occurs prior to the time of the conveyance of the first Lot within the applicable phase of the Property. The Association shall be responsible for the Maintenance of all Common Areas (whether or not conveyed or to be conveyed to the Association) in a continuous and satisfactory manner provided, however, Declarant, in its sole discretion may elect, but shall not be obligated, to maintain such Common Areas in such manner as Declarant deems reasonable prior to its conveyance of such Common Area(s) to the Association.
The conveyance or transfer of Common Areas shall be "As Is." The Association shall be deemed to have assumed and agreed to pay all continuing obligations and service and similar contracts relating to the ownership, Maintenance and operation of the Common Area and other obligations relating to the Common Area imposed herein. The Association hereby agrees to indemnify and hold the Declarant harmless on account thereof. The Association, by its joinder in this Declaration, hereby accepts such dedication(s) or conveyance(s) without setoff, condition, or qualification of any nature. THE ASSOCIATION AGREES TO ACCEPT “AS IS” THE CONVEYANCE OF THE COMMON AREA AND THE PERSONAL PROPERTY AND IMPROVEMENTS APPURTENANT THERETO, WITHOUT ANY REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, IN FACT OR BY
ION AGREES TO ACCEPT “AS IS” THE CONVEYANCE OF THE COMMON AREA AND THE PERSONAL PROPERTY AND IMPROVEMENTS APPURTENANT THERETO, WITHOUT ANY REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, IN FACT OR BY LAW, AS TO THE CONDITION OR FITNESS OF THE COMMON AREA, OR PORTIONS THEREOF AND THE PERSONAL PROPERTY AND IMPROVEMENTS THEREON.
3.4. Operation After Conveyance. After the conveyance or transfer of any portion of the Common Area to the Association, the portion of the Common Area so conveyed or transferred shall be owned, operated, Maintained and administered by the Association for the use and benefit of the Owners, in accordance with the Governing Documents. Subject to the Association's right to grant easements, leaseholds and other interests as provided herein, the Association may not convey, transfer or encumber all or a portion of the Common Areas to a third party without (a) the approval of eighty (80%) percent of the total voting interests of the Owners; and (b) the written consent of the Declarant so long as Declarant (or any of its affiliates) owns any portion of the Community.
3.5. Taxes. It is intended that all real estate taxes assessed against the Common Areas owned or to be owned by the Association shall be (or have been, because the purchase prices of the Units have already taken into account their proportionate shares of values of the Common Area) proportionally assessed against and payable as part of the taxes of the Units within the Property. However, in the event that, notwithstanding the foregoing, any such taxes are assessed directly against the Common Areas, the Association shall be responsible for the payment (subject to protest or appeal before or after payment) of
ithstanding the foregoing, any such taxes are assessed directly against the Common Areas, the Association shall be responsible for the payment (subject to protest or appeal before or after payment) of the same, including taxes on any Improvements and any personal property thereon accruing from and after the date this Declaration or Supplemental Declaration designating the portion of the Property as Common Areas was recorded. Such taxes shall be prorated between Declarant (or the then Declarant-affiliated Owner thereof) and the Association as of the date of such recordation. Any taxes on the Common Areas shall be Common Expenses of the Association.
3.6.
Assumption of Risk. Without limiting any other provision herein, each Person using any portion of the Common Areas accepts and assumes all risk and responsibility for liability, injury, loss or damage connected with use of such Common Areas. The Person also expressly indemnifies and agrees to hold harmless the Declarant, the Association and all employees, directors, representatives, officers, agents, and partners of the foregoing, from any and all damages, whether direct or consequential, arising from or 00683-004/00063363-5 10 Book8287 Page49 Page 19 of 59 related to the Person's use of the Common Areas, including attorneys' fees and costs at trial, upon appeal or otherwise.
3.7.
Negligence. The expense of any Maintenance, repair or construction of any portion of the Common Areas necessitated by the negligent or willful acts of an Owner, its Permitted User or other Person utilizing the Common Areas, through or under such Owner, shall be borne solely by such Owner and the portions of the Property owned by that Owner shall be subject to an Individual Assessment for that expense.
g the Common Areas, through or under such Owner, shall be borne solely by such Owner and the portions of the Property owned by that Owner shall be subject to an Individual Assessment for that expense.
3.8. Partition. Except as permitted in this Declaration, there shall be no judicial partition of the Common Areas or any part thereof, nor shall any Person acquiring any interest in the Property or any part thereof seek any judicial partition of the Common Areas or any part thereof, unless the Property has been removed from the provisions of this Declaration. This Article shall not be construed to prohibit the Board of Directors from acquiring and disposing of tangible personal property nor from acquiring title to real property which may or may not be subject to this Declaration.
4.
MEMBERSHIP, GOVERNANCE AND VOTING RIGHTS IN THE ASSOCIATION 4.1. Membership. Declarant and every Owner within the Property shall be a Member of the Association, and by execution of this Declaration or by acceptance of a deed conveying to such Owner title to any Lot, each Owner consents to be a Member of the Association, subject to the terms of the Governing Documents. Membership shall be appurtenant to and may not be separated from ownership of the Member's Lot. The foregoing is not intended to include any Person that holds an interest merely as security for the performance of an obligation. Upon termination of ownership, an Owner's membership with respect to the transferred Lot shall automatically terminate and be automatically transferred to the new Owner of the Lot.
The Owner of the Future Development Property shall be a Member of the Association but no votes shall be allocated to any portion of the Future Development Property unless and until such portion is declared to be
f the Future Development Property shall be a Member of the Association but no votes shall be allocated to any portion of the Future Development Property unless and until such portion is declared to be Lots by the Declarant and Owner of the Future Development Property, if other than the Declarant.
4.2. Voting Rights. Each Member shall have those voting rights established in this Declaration, which may be different for different classes of membership. The Association shall have two (2) classes of Members: 4.2.1. Class A. Class A Members shall be all Owners of Lots, with the exception of the Declarant so long as the Declarant is a Class B Member. Unless otherwise provided in a Supplemental Declaration, a Class A Member shall be entitled to one (1) vote for each Lot developed or intended to be developed on a Lot owned by the Class A Member.
4.2.2. Class B. The Class B Member shall be the Declarant. The Class B Member shall be entitled to ten (10) votes for each Lot developed or intended to be developed on a Lot owned by the Class B Member. The Class B membership shall cease and be converted to Class A membership on the expiration of the Declarant Control Period.
4.2.3. Eighty Percent Threshold. Notwithstanding anything herein to the contrary, for the sole purpose of exercising the rights specified in Section 5.3, below, Declarant shall, at all times during the Declarant Control Period, be deemed to have no less than an eighty percent (80%) voting interest in the Association.
4.2.4. Co-Owners. When more than one Person holds an interest in any portion of the Property, all such Persons shall be Members of the Association and may attend any meeting of the 00683-004/00063363-5 11 Book8287 - Page50 Page 20 of 59
Person holds an interest in any portion of the Property, all such Persons shall be Members of the Association and may attend any meeting of the 00683-004/00063363-5 11 Book8287 - Page50 Page 20 of 59 Association. The vote or votes for such portion of the Property shall be exercised as such Persons may determine among themselves, but in no event shall more votes be cast with respect to any portion of the Property than the number provided in this Declaration. If a Lot is owned by two or more co-owners and only one of the co-owners is present at a meeting of the Owners, the co-owner who is present is entitled to cast all the votes allocated to that Lot. If more than one of the co-owners are present, the votes allocated to that Lot may be cast only in accordance with the agreement of a majority in interest of the multiple coowners. Majority agreement is conclusively presumed if any one of the co-owners casts the votes allocated to that Lot without protest being made promptly to the person presiding over the meeting by any of the other co-owners of the Lot. The President of the Association shall have the authority to require that such multiple Owners of a Lot file a certificate with the Secretary of the Association, signed by all of the Owners, designating the person entitled to cast the vote or votes for such Lot. Such certificate shall be valid until revoked by a subsequent certificate. If such certificate is not filed when required, the vote of such Owners shall not be considered in determining the requirements for a quorum or for any other purpose.
4.3. Modifications. The Declarant shall have the right in its sole discretion to modify the voting allocations set forth in Section 4.2 and to set forth such modified allocations in a Supplemental Declaration.
4.4.
ions. The Declarant shall have the right in its sole discretion to modify the voting allocations set forth in Section 4.2 and to set forth such modified allocations in a Supplemental Declaration.
4.4.
General Matters. When reference is made in the Governing Documents to a majority or specific percentage of Owners or Members, such reference shall be deemed to be reference to a majority or specific percentage of the voting interests of Members represented at a duly constituted meeting thereof (i.e., one for which proper notice has been given and at which a quorum exists) and not of the number of the Members themselves or number of Lots or the total aggregate number of voting interests unless this Declaration or Act expressly requires a majority or specific percentage of the "total voting interests,” in which case the majority or specific percentage shall be computed on the total aggregate number of voting interests in the Association.
CERTAIN EASEMENTS AND RIGHTS 5.
5.1.
Owners' Rights of Use. Each Owner and Permitted User on the Property shall have a nonexclusive right of use and enjoyment and easement in the Common Areas, including the right of ingress and egress to and from all Common Areas throughout the Property, subject to such rules and regulations as are allowed under the Governing Documents to be imposed by the Association and subject to suspension of use rights allowed in the Governing Documents; provided that no suspension of rights shall occur without first providing notice of the charge, opportunity to be heard and to present evidence, and notice of the decision as required by §3-107.1 of the Act. But the right of access and support, the right to drain stormwater
notice of the charge, opportunity to be heard and to present evidence, and notice of the decision as required by §3-107.1 of the Act. But the right of access and support, the right to drain stormwater and the right to use Stormwater Facilities, private streets, private utility services provided to the Lot or Future Development Property through easements in Common Area, and any assigned parking areas shall not be suspended for violation of the Association's rules and regulations.
5.2.
Limitations on Use of Common Areas. All rights of use and enjoyment in the Common Areas are subject to the following: 5.2.1. Easements over and upon the Common Areas in favor of the Association and its Members shall not be deemed to grant any easements or use rights which are not specifically granted elsewhere herein or in any other documents to which the Property (or any applicable portion(s) thereof) are now or hereafter made subject.
5.2.2. The right of the Association to: 00683-004/00063363-5 12 Book8287 Page51 Page 21 of 59 5.2.2.1. Suspend the rights of an Owner and his Permitted Users to use the Common Areas (except legal access and drainage easements) as set forth in Subsection 10.14.6 for any period during which any applicable Assessment remains unpaid subject to the requirements of the Act, Article 12 and Subsection 10.14.6 of this Declaration.
5.2.2.2. Adopt and enforce rules and regulations governing the use of the Common Areas. Any rule and/or regulation so adopted by the Association shall apply until rescinded or modified.
5.2.3.
The Declarant shall have the right to construct, erect and build Improvements over such streets, drives, roadways, sidewalks, paths, walks and parking areas within or upon the Common Area.
ied.
5.2.3.
The Declarant shall have the right to construct, erect and build Improvements over such streets, drives, roadways, sidewalks, paths, walks and parking areas within or upon the Common Area.
Notwithstanding the foregoing, as long as the Declarant or any of its affiliates owns any property in the Community, the Declarant, by Supplemental Declaration or other written instrument, may limit or restrict access to certain private streets, drives, roadways, walkways, paths and parking areas within or upon the Common Area.
5.2.4. Declarant and Declarant's Permittees shall have the right from time to time to enter upon the Common Areas and other portions of the Property (including Lots and Units) for the purpose of the installation, construction, reconstruction, repair, replacement, operation, expansion or alteration of any Improvements or facilities on the Common Areas or elsewhere in the Property that the Declarant and Declarant's Permittees, as appropriate, elect to effect.
5.2.5. Declarant shall have the right to convert Common Areas to Lots or Lots to Common Areas, in which event Declarant shall record an amendment to this Declaration in the Registry, together with such plats showing the boundaries of any such Lots or Common Areas so converted.
5.2.6. Declarant and the Association shall have the right to use funds of the Association to purchase, lease, finance, and otherwise acquire interests in real property and improvements for addition to the Community as Common Area and related amenities. Declarant and the Association shall further have the right to borrow funds in the name of the Association for such purposes, on such terms as may be determined by Declarant or the Board.
5.2.7. Declarant and the Association shall have the right to enter into agreements with
in the name of the Association for such purposes, on such terms as may be determined by Declarant or the Board.
5.2.7. Declarant and the Association shall have the right to enter into agreements with other communities, neighborhoods, municipalities or other third parties for the use of amenities and facilities owned or operated by such third parties. Any cost to the Association with respect to such agreements may be included as a part of Common Assessments.
WITH RESPECT TO THE USE OF THE COMMON AREAS, RECREATION FACILITIES AND THE PROPERTY GENERALLY, ALL PERSONS ARE REFERRED TO SECTIONS 20.11 AND 20.13 HEREOF WHICH SHALL AT ALL TIMES APPLY THERETO.
5.3.
Right to Grant or Relocate Easements. The Declarant (as long as the Declarant or any of its affiliates owns any property in the Community) and thereafter the Association shall have the right to grant, convey and relocate easements, licenses or rights of way in, on, over or under the Common Areas for purposes consistent with the terms of this Declaration, including constructing, installing, erecting, operating or Maintaining thereon, therein and thereunder: (.1) streets, walks, trails, driveways, parkways, landscaping, parks and open space areas; (.2) lines, cables, wires, conduits, facilities and other devices for the transmission of electricity, heating, cooling, water, sanitary sewerage, gas, television, telephone, voice or electronic data and other similar purposes; (.3) Stormwater Facilities; (.4) irrigation systems; (.5) any Improvements or uses for the general health or welfare of the Owners, for the Maintenance of the Property, 00683-004/00063363-5 13 Book8287 - Page52 Page 22 of 59 or any portion thereof, or for the purpose of carrying out any provision of this Declaration; and (.6) any
for the Maintenance of the Property, 00683-004/00063363-5 13 Book8287 - Page52 Page 22 of 59 or any portion thereof, or for the purpose of carrying out any provision of this Declaration; and (.6) any similar Improvements or uses not inconsistent with the use of such property pursuant to this Declaration as the Declarant shall deem necessary or desirable. Notwithstanding the foregoing, such easements or the relocation of existing easements will not prevent or unreasonably interfere with the use and enjoyment of the Common Areas or the use of or ingress and egress to the Lots and Future Development Property for their intended purposes.
5.4. Association Easements over Lots and Units. The Association and its duly authorized agents, employees or independent contractors shall have an easement over each Lot and Unit as may be reasonably necessary to carry out any provision of this Declaration, including the Maintenance of Common Areas, performance of Lot Landscaping, Exterior Maintenance, Restoration of portions of the Property, enforcement of this Declaration, inspection (in a reasonable manner) in order to determine whether any Maintenance is necessary, performance of remedial work, and to the extent that the Association is obligated or authorized to perform any Lot Landscaping, Exterior Maintenance, or Restoration, to perform such Lot Landscaping, Exterior Maintenance, or Restoration provided that any such entry is during reasonable hours.
Nothing contained in this Section shall be construed or interpreted to impose upon the Association the obligation to Maintain any of the Property except as expressly set forth in this Declaration. Neither the Declarant, the Association, nor any of their respective directors, officers, agents or employees shall be liable
tain any of the Property except as expressly set forth in this Declaration. Neither the Declarant, the Association, nor any of their respective directors, officers, agents or employees shall be liable for any incidental or consequential damages for failure to inspect any portion of the Property or failure to Maintain the same. The Declarant, the Association, or any other authorized Person undertaking such Maintenance shall not be liable for any personal injury or other incidental or consequential damages occasioned by any act or omission in the Maintenance of any portion of the Lots, Units, Common Areas or Improvements thereon or portion thereof. In addition, the Association may, without notice, perform such emergency Maintenance as it may determine is necessary for the safety of any Person or to prevent damage to any property. The provisions of this Section shall not be deemed to create any right of the Association to enter upon the property of the Declarant.
5.5.
Utility Easements. Utilities in the Common Areas for the service of the Property shall be installed underground except as otherwise permitted by Declarant.
5.6.
Access for Governmental Agencies; Service and Emergency Easements. A nonexclusive, perpetual right of access over all Lots, and Future Development Property and Common Areas (including private streets, if any) on the Property is established for the benefit of governmental entities for installing, removing and reading utility meters, Maintaining and replacing utility facilities and lines, and acting for other purposes consistent with public safety and welfare, including law enforcement, fire protection, animal control, emergency services, garbage collection and public or private mail and package delivery.
5.7.
oses consistent with public safety and welfare, including law enforcement, fire protection, animal control, emergency services, garbage collection and public or private mail and package delivery.
5.7.
Easements for Pedestrian and Vehicular Traffic. In addition to the general easements for use of the Common Area reserved herein, there shall be, and the Declarant hereby reserves and grants for itself and all future Owners and their family members, Permitted Users, invitees, contractors, Mortgagees and the Association, a perpetual, non-exclusive easement for: (.1) vehicular traffic over all streets dedicated to the public use, if any, and private streets, roadways and alleys within or upon the Common Area; (2) pedestrian traffic over, upon and across all sidewalks, walkways, walking trails and paths within or upon the Common Area; and (3) vehicular parking on such portions of the Common Area as from time to time may be intended and designated for general parking purposes by the Board of Directors.
5.8.
Encroachments; Easements. If (.1) any Improvement on the Common Area encroaches upon any Lot; (2) any Improvement on any Lot encroaches upon the Common Area or another Lot; or (.3) any encroachment shall hereafter occur as a result of (a) construction of a Unit or Improvement to a 00683-004/00063363-5 14 Book8287 - Page53 Page 23 of 59 Common Area; (b) settling or shifting of a Unit, or Improvement to Common Area; (c) any alteration or repair to a Unit or Improvement to Common Area made by or with the consent of the Owner, Association or the Declarant, as appropriate, or (d) any Restoration of the Improvements to a Unit, Lot, or Common Area (or any portion thereof) damaged by fire or other casualty or any taking by condemnation or eminent
Declarant, as appropriate, or (d) any Restoration of the Improvements to a Unit, Lot, or Common Area (or any portion thereof) damaged by fire or other casualty or any taking by condemnation or eminent domain proceedings of all or any portion of any Unit, Lot or Common Area, then, in such event, a valid easement is granted and shall exist for such encroachment and for the maintenance of the same so long as the Improvements causing the encroachment shall stand. This provision shall not entitle any Owner to intentionally construct Improvements which encroach upon any other portion of the Property and no easement for encroachment shall exist if such encroachment occurred due to the willful and knowing conduct on the part of, or with the knowledge and consent of, an Owner, Permitted User or the Association.
5.9.
Utility and Other Services; Stormwater Facilities. In the event that any Lot contains utilities, telecommunications and security systems, irrigation and other services and systems and/or Stormwater Facilities which serve more than one Unit or Lot, then there shall be an easement reserved in favor of the Association and/or the entities providing such utilities, telecommunications and security systems, and irrigation and other services and systems and/or drainage facilities under, through and over the Lot on which it is located as may be required from time to time in order to Maintain such utilities, telecommunications and security systems, irrigation and other services and systems and drainage facilities so long as the easement does not materially adversely affect the Owner's use and enjoyment of its Unit as a residence. Stormwater Facilities serving more than one Lot shall be Maintained continuously in good
as the easement does not materially adversely affect the Owner's use and enjoyment of its Unit as a residence. Stormwater Facilities serving more than one Lot shall be Maintained continuously in good condition by the Association and easements are granted hereby over all Lots in favor of all Owners and the Association with respect thereto.
No Owner shall do anything within or outside its Unit that interferes with or impairs, or may interfere with or impair, the provision of such utilities, telecommunications and security systems, and other services and systems and/or Stormwater Facilities or the use of easements for the foregoing purposes. The Association or its agent shall have a right of access to each Lot and Unit thereon to Maintain the pipes, wires, ducts, vents, cables, conduits and other facilities for utilities, telecommunications and security systems, and other services and systems and for Stormwater Facilities located on the Lot or elsewhere in the Property, and to remove any improvements interfering with or impairing such facilities or easements reserved herein. Such right of access, except in the event of an emergency, shall not unreasonably interfere with the Unit Owner's permitted use of the Unit. Except in the event of an emergency (which shall not require prior notice), entry shall be made on not less than one (1) day's notice (which notice shall not, however, be required if the Owner is absent when the giving of such notice is attempted).
5.10. Easements of Support. Whenever any structure included in the Common Areas adjoins any structure included in any other portion of the Property, each said structure shall have and be subject to an easement of support and necessity in favor of the other structure.
5.11.
Areas adjoins any structure included in any other portion of the Property, each said structure shall have and be subject to an easement of support and necessity in favor of the other structure.
5.11.
Easements Appurtenant. The easements provided in Article 5 shall be appurtenant to and shall pass with the title to each Lot and, if applicable, title to Future Development Property.
6.
FUNCTIONS OF THE ASSOCIATION.
6.1.
Powers and Duties. Subject only to such limitations expressly set forth in the Governing Documents, the Association (.1) shall have all of the powers of a North Carolina not-for-profit corporation; (.2) shall have and may exercise any right or privilege given to it expressly in the Governing Documents; (.3) shall have and may exercise any right or privilege given to it by the Act or other law and (.4) shall have and may exercise every other right, privilege, power or authority necessary or desirable to fulfill its 00683-004/00063363-5 15 Book8287 - Page54 Page 24 of 59 obligations under the Governing Documents.
6.2. Assessments. The Association shall have the power and duty to impose Assessments on the Owners of Lots with respect to which Assessments have commenced and to collect and enforce payment of such Assessments in accordance with the provisions of Article 10.
6.3. Maintenance of Other Property. The Association may Maintain other property which it does not own, including property dedicated to the public, (.1) if such Maintenance is required by this Declaration, any covenants binding the Property or any governmental order, (.2) if the Board of Directors determines that such Maintenance is necessary or desirable to cause compliance with this Declaration or to
any covenants binding the Property or any governmental order, (.2) if the Board of Directors determines that such Maintenance is necessary or desirable to cause compliance with this Declaration or to enhance the appearance or value of the Property, or (3) if the Maintenance is requested by the Person responsible for such Maintenance and the cost of it is charged to such Person with security or other assurances for payment acceptable to the Board. As to any Maintenance performed by the Association pursuant to the Governing Documents as to property it does not own, the Association shall have the right to file, amend, release and terminate claims of lien pursuant to N.C. Gen. Stat. §44A.
6.4.
Rules. The Association shall have the power to adopt, amend and enforce rules and regulations applicable within the Property with respect to any Common Areas and those portions of a Lot or Unit Maintained by the Association, and to implement the provisions of the Governing Documents. All rules and regulations adopted by the Association shall be reasonable and shall be uniformly applied, except such rules may differentiate between reasonable categories of the Property and Owners, Permitted Users, invitees and contractors. Notwithstanding the foregoing provisions of this Section, the Association shall not have the right or power to amend this Declaration or impose rules and regulations which limit or interfere with the rights of the Declarant under this Declaration. A copy of the rules, as they may from time to time be adopted, amended or repealed, shall be posted in a conspicuous place in the Association's office or may be mailed or otherwise made available to each Owner. Thereafter, the rules and regulations shall have the
amended or repealed, shall be posted in a conspicuous place in the Association's office or may be mailed or otherwise made available to each Owner. Thereafter, the rules and regulations shall have the same force and effect as if they were set forth herein; provided, however, that the rules and regulations shall be enforceable only to the extent that they are consistent with the Governing Documents, and may not be used to amend any of such documents. If any Owner has actual knowledge of any rules and regulations, such rules and regulations shall be enforceable against such Owner as though notice had been given.
6.5. Borrowing. The Association has the right with the consent of the Declarant, as long as the Declarant or any of its affiliates owns any property in the Community, to borrow money for any purpose, subject to any limitation in this Declaration, to execute promissory notes, other documents evidencing or securing the indebtedness; provided that in the event the aggregate amount of principal indebtedness incurred by the Association in any Fiscal Year exceeds the greater of $250,000, as adjusted by the CPI, or forty (40%) percent of the Association's budget for the previous year, then such actions must be approved by Owners holding a majority of the voting interests present in person or by proxy at a duly called meeting of the Association at which a quorum is attained. In the event that the Association desires to mortgage, pledge or encumber any or all of its Common Area as security for money borrowed or debts incurred, then the Association must obtain the approval of eighty (80%) percent of the total voting interests of the Owners.
6.6. Marketing. The Association may provide a suitable and continuing program to promote the
e Association must obtain the approval of eighty (80%) percent of the total voting interests of the Owners.
6.6. Marketing. The Association may provide a suitable and continuing program to promote the Community as a desirable residential community, including advertising, organizing and coordinating major events, advertising, placing articles in news media, and establishing uniform standards for promotional events.
6.7. Special Events. The Declarant and the Board of Directors shall have the right, but not the obligation, to grant special use rights, permits and privileges in the Common Area and Improvements 00683-004/00063363-5 16 Book8287 - Page55 Page 25 of 59 thereon for special events, festivals, street fairs, valet parking and other usage. In addition, the Association shall have the right to enter into agreements with others for purposes relating to, the joint or cooperative marketing, advertising and promoting of the Community, regulating and providing parking within the Community, including special event parking, and other areas of interest to the Association and its Members.
6.8. Indemnification. The Association shall be obligated to and shall indemnify the Declarant and hold it harmless from all liability, loss, cost, injury, damage and expense, including attorneys' fees, arising with respect to any operations of or services provided by the Association hereunder.
7.
MAINTENANCE OF IMPROVEMENTS, UNITS, LOTS AND COMMON AREAS 7.1.
Exterior of Improvements.
7.1.1. To the extent that the Association has the express obligation to perform Maintenance for any Improvements to a Lot pursuant to any Supplemental Declaration, or other declaration of covenants and restrictions or similar recorded instrument, then the Association shall be responsible for
for any Improvements to a Lot pursuant to any Supplemental Declaration, or other declaration of covenants and restrictions or similar recorded instrument, then the Association shall be responsible for performing those obligations which have been delegated to it in a neat, orderly and attractive manner consistent with the standards set forth in Section 7.6.
7.1.2. The Maintenance of all Improvements located on the Lot which has not been expressly delegated to the Association pursuant to this Declaration, any Supplemental Declaration, or pursuant to a declaration of condominium or declaration of covenants and restrictions or similar recorded instrument shall be the sole obligation of the Owner(s) of such Lot or Unit.
7.2. Lot Landscaping. The Association shall Maintain the Lot Landscaping for each Lot as determined by the Board in the front, side and back yards of each Lot in a neat, orderly and attractive manner. The Association shall not be obligated to Maintain any Lot Landscaping within any enclosed or fenced areas on a Lot, unless gate(s) wide enough for the necessary equipment are left open, not just unlocked, for the Association's maintenance contractor(s). Nor shall the Association be required to perform Lot Landscaping when an unsafe condition exists on a Lot, including a loose animal. The Maintenance of the Lot Landscaping may include, but shall not necessarily be limited to: the cutting or trimming of grass, trees and shrubs; the re-mulching and weeding of mulched areas; removal of lawn debris and leaves; and the routine, customary application of fertilizer, pesticide and algaecide or fungicide, if necessary or recommended. The Association shall not be required to Maintain any shrubbery, grass and other
nd the routine, customary application of fertilizer, pesticide and algaecide or fungicide, if necessary or recommended. The Association shall not be required to Maintain any shrubbery, grass and other landscaping on any Lot other than the usual and customary landscaping provided by the Declarant or its replacement provided by the Association. The Association shall have the sole discretion to determine the time at which such Lot Landscaping shall take place, and the manner and materials to be used. Each Owner shall Maintain the trees, shrubbery, grass and other landscaping that is not part and parcel of the Lot Landscaping, and all parking, pedestrian, recreational and other open areas on his Lot in a neat, orderly and attractive manner and consistent with the standards set forth in Section 7.6. The Association shall have the right to remove any Lot Landscaping which becomes a nuisance.
7.3. Remedies for Noncompliance.
7.3.1. In the event an Owner fails to Maintain or cause to be Maintained his Improvements and Lot in accordance with this Article 7, the Association shall have the right (but not the obligation), upon five (5) days' prior written notice to the Owner at the address last appearing in the records of the Association, to enter upon the Owner's Lot and perform such work as is necessary to bring the Lot or Improvements, as applicable, into compliance with the standards set forth in Section 7.6. Such work may 00683-004/00063363-5 17 Book8287 - Page56 Page 26 of 59 include, but shall not necessarily be limited to, the repainting or restaining of exterior surfaces of an Improvement, the repair of walls, fences, roofs, doors, windows and other portions of Improvements on a Lot; and such other remedial work as is judged necessary by the applicable entity.
urfaces of an Improvement, the repair of walls, fences, roofs, doors, windows and other portions of Improvements on a Lot; and such other remedial work as is judged necessary by the applicable entity.
7.3.2. The remedies provided for herein shall be cumulative with all other remedies available under this Declaration or other applicable covenants or deed restrictions (including the imposition of Individual Assessments or the filing of legal or equitable actions).
7.4. Costs of Remedial Work; Surcharges. In the event that the Association performs any remedial work on an Improvement or Lot pursuant to this Article or any other applicable covenants or deed restrictions, the costs and expenses thereof shall be deemed an Individual Assessment under Article 10 of this Declaration and may be immediately imposed by the Association. In order to discourage Owners from abandoning certain duties hereunder and, additionally, to reimburse itself for administrative expenses incurred, the Association may impose a surcharge of not more than twenty-five (25%) percent of the cost of the applicable remedial work, such surcharge to be a part of the Individual Assessment. No bids need be obtained for any of the work performed pursuant to this Section and the Person(s) performing such work may be selected by the applicable enforcing entity in its sole discretion.
7.5.
Right of Entry; Right to File Notices of Lien Rights, 7.5.1. There is hereby created an easement in favor of the Association and its designees, over each Lot including the Unit thereon for the purpose of entering onto the Lot in the performance of Lot Landscaping, and any other Maintenance for which the Association has Maintenance responsibility, or for
ot including the Unit thereon for the purpose of entering onto the Lot in the performance of Lot Landscaping, and any other Maintenance for which the Association has Maintenance responsibility, or for which the Association is otherwise permitted or required to perform the Maintenance and any other herein described, provided that the Association shall exercise such easement for entry into a Unit during reasonable hours.
7.5.2. In addition to the assessment and lien rights created hereby, the Association shall have, pursuant to N.C. Gen. Stat. §44A, the right to file notices of lien rights, claims of lien, amendments thereto, notices of termination and satisfactions as to any Lot for which it has the obligation to perform Lot Landscaping or any other Maintenance, or for which the Association is otherwise permitted or required to perform the Maintenance.
7.6.
Standards for Maintenance; Restoration. All Maintenance and Restoration of Property, Units, Lots and the performance of Lot Landscaping shall be performed in a manner consistent with the general appearance of the developed portions of the Property and, as to Units, the portion of the Property in which the Unit is located. The minimum (though not sole) standard for the landscaping shall be the more stringent of the following: the Community standard or the general appearance of the Property (and the applicable portion thereof as aforesaid) as initially landscaped (such standard being subject to being automatically raised by virtue of the natural and orderly growth and maturation of applicable landscaping, as properly Maintained). The minimum (though not sole) standard for Maintenance and Restoration of Property, Units and Lots shall be the more stringent of the following: the Community standard or the
as properly Maintained). The minimum (though not sole) standard for Maintenance and Restoration of Property, Units and Lots shall be the more stringent of the following: the Community standard or the prevailing standard for the portion of the Property in which the Unit is located taking into account, however, normal weathering and fading of exterior finishes, but not to the point of unsightliness, in the judgment of Declarant or the ARB (as hereinafter defined). The Person responsible for Maintenance (the Owner or Association, as applicable) shall repaint, restain, or refinish, as appropriate, the exterior portions of his Improvements (with the same colors and materials as initially used or as approved by Declarant or the ARB) as often as is necessary to comply with the foregoing standards.
00683-004/00063363-5 18 Book8287 - Page57 Page 27 of 59 7.7. Other Maintenance Services. The Association may also assume Maintenance responsibilities with respect to any other Lots in addition to those that may be designated in this Declaration or in any Supplemental Declaration. This assumption of responsibility may take place by agreement with Owners of Lots or because, in the opinion of the Board of Directors, the level and quality of service then being provided is not consistent with the standards set forth in Section 7.6. All costs of Maintenance pursuant to this Section 7.7 shall be assessed as a Special Assessment or Individual Assessments only against the Lots to which the services are provided, unless specifically provided otherwise in a Supplemental Declaration. The provision of services in accordance with this Section shall not constitute discrimination within a class.
7.8. Common Area Maintenance. The Association shall at all times Maintain in good repair,
The provision of services in accordance with this Section shall not constitute discrimination within a class.
7.8. Common Area Maintenance. The Association shall at all times Maintain in good repair, operate, manage, insure, and replace as often as necessary the Common Areas and all Improvements situated on the Common Areas (upon completion of construction by Declarant or its affiliates, if applicable) in a neat, orderly and attractive manner consistent with the standards set forth in Section 7.6. Without limiting the generality of the foregoing, the Association shall assume all of Declarant's, its affiliates' (and its and their predecessors') responsibility to the City or County, its respective governmental and quasigovernmental subdivisions and similar entities of any kind with respect to the Common Areas, including roads and entry features, and shall indemnify Declarant and its affiliates and hold Declarant and its affiliates harmless with respect thereto.
7.9. Maintenance of Stormwater Facilities. If the Stormwater Facilities are not owned or Maintained by the City, the Declarant reserves the right to require the Association to Maintain, operate, repair and replace the Stormwater Facilities in accordance with Article 9 below as a Common Expense in order to provide drainage, water storage, conveyance, or other stormwater management capabilities as required by the City and/or County.
7.10.
Street Lighting. If the street lighting is not Maintained by the City, the Declarant reserves the right to require that the Association Maintain street lighting (the term “street lighting" shall include light poles and appurtenances thereto, the light bulbs and wiring therefor) located within the Property and on
e that the Association Maintain street lighting (the term “street lighting" shall include light poles and appurtenances thereto, the light bulbs and wiring therefor) located within the Property and on nearby property and the cost of electricity therefor, and the cost and expense for the foregoing in such a case shall be a Common Expense, notwithstanding that such street lighting may be located on portions of the Property which are not owned by the Association or are not Common Areas.
INSURANCE.
8.
8.1.
Insurance by the Association. The Association shall use commercially reasonable efforts to obtain and Maintain insurance covering the following, the cost of which will be a Common Expense: 8.1.1. Property insurance on the Common Areas insuring against all risks of direct physical loss commonly insured against, including fire and extended coverage perils; and the total amount of insurance after application of any deductibles shall be not less than eighty percent (80%) of the replacement cost of the insured property at the time the insurance is purchased and at each renewal date, exclusive of land, excavations, foundations, and other items normally excluded from property policies; 8.1.2. The Association shall obtain general liability insurance covering loss or damage to Persons or property arising out of or in connection with the use, ownership or Maintenance of the Common Areas. The coverage amount for such insurance shall be required by the Board, but with a minimum combined single limit liability of not less than $2,000,000 for each accident or occurrence.
00683-004/00063363-5 19 Book8287 - Page58 Page 28 of 59 8.1.3. Any loss covered by the property policy under Subsection 8.1 shall be adjusted
not less than $2,000,000 for each accident or occurrence.
00683-004/00063363-5 19 Book8287 - Page58 Page 28 of 59 8.1.3. Any loss covered by the property policy under Subsection 8.1 shall be adjusted with the Association, but the insurance proceeds for that loss are payable to any insurance trustee designated for that purpose, or otherwise to the Association, and not to any Mortgagee. The insurance trustee or the Association shall hold any insurance proceeds in trust for Owners and lienholders as their interests may appear. Subject to the provisions of Subsection 8.1.6, the proceeds shall be disbursed first for the Restoration of the damaged property, and Owners and lienholders are not entitled to receive payment of any portion of the proceeds unless there is a surplus of proceeds after the property has been completely Restored, or the Association is dissolved.
8.1.4. An insurance policy issued to the Association does not prevent an Owner from obtaining insurance for the Owner's own benefit.
8.1.5. An insurer that has issued an insurance policy under this section shall issue certificates or memoranda of insurance to the Association and, upon written request, to any Owner, mortgagee or beneficiary under a deed of trust. Such policy shall provide the insurer issuing the policy may not cancel or refuse to renew it until thirty (30) days after notice of the proposed cancellation or nonrenewal has been mailed to the Association, and to each Owner, mortgagee or beneficiary under a deed of trust to whom certificates or memoranda of insurance have been issued at their respective last known addresses.
8.1.6. Any portion of the Development for which insurance is required under Subsection
f trust to whom certificates or memoranda of insurance have been issued at their respective last known addresses.
8.1.6. Any portion of the Development for which insurance is required under Subsection 8.1 which is damaged or destroyed shall be repaired or replaced promptly by the Association unless: (.1) the Association has been dissolved; (.2) repair or replacement would be illegal under any State or local health or safety statute or ordinance; or (.3) the Owners decide not to rebuild by an eighty percent (80%) vote. The cost of repair or replacement in excess of insurance proceeds and reserves is a Common Expense.
If any portion of the Common Areas is not repaired or replaced: (1) the insurance proceeds attributable to the damaged Common Areas shall be used to restore the damaged area to a condition compatible with the remainder of the Development; and (2) the remainder of the proceeds shall be distributed to all the Owners or lienholders, as their interests may appear, in proportion to the Common Expense liabilities of all Owners.
Notwithstanding the provisions of this Subsection, §2-118 of the Act governs the distribution of insurance proceeds if the Community is terminated.
8.2.
Other Insurance to be Maintained by the Association.
8.2.1. The Association shall maintain fidelity coverage against dishonest acts by the Association's officers, employees and others who are responsible for handling funds of the Association. If the Association contracts with another Person to receive and disburse the monies of the Association, then such Person shall have adequate fidelity coverage against dishonest acts and the existence of such coverage shall satisfy the requirement of this paragraph. Any such fidelity coverage shall name the Association as
hall have adequate fidelity coverage against dishonest acts and the existence of such coverage shall satisfy the requirement of this paragraph. Any such fidelity coverage shall name the Association as an obligee, shall be written in such amount as the Executive Board shall deem appropriate, and shall contain waivers of any defense based on the exclusion of persons who serve without compensation from any definition of "employee" or similar term.
8.2.2. To the extent obtainable at reasonable cost, the Association shall maintain appropriate insurance to protect the Executive Board and officers of the Association from personal liability arising in connection with their duties and responsibilities in such capacities on behalf of the Association.
8.2.3. The Association shall maintain workers compensation with respect to its employees, if any, as required by law.
00683-004/00063363-5 20 20 Book8287 - Page59 Page 29 of 59 The Association may obtain insurance against such other risks as the Executive Board shall deem appropriate.
9.
OBLIGATIONS REGARDING STORMWATER FACILITIES.
9.1 General. The Stormwater Facilities must be maintained by the Association in accordance with City requirements, which include all ordinances, policies, standards, and maintenance protocols and in accordance with the Stormwater Covenant (the "City Requirements"). In particular, the City's current "Owner's Maintenance Guide for Stormwater BMPs Constructed in the City of Durham" (available at http://durhamnc.gov/DocumentCenterNiew/2239) and the Stormwater Manual specifically for the Facility/ies contain requirements that apply to the Facilities. Nothing in the remaining Article or any subsequent modifications of this Declaration may reduce the Association's or Lot Owners' obligations with
ies contain requirements that apply to the Facilities. Nothing in the remaining Article or any subsequent modifications of this Declaration may reduce the Association's or Lot Owners' obligations with regard to the Facility/ies. Such additional covenants may increase the obligations or provide for additional enforcement options.
9.2 Inspections/Routine Maintenance. In accordance with City Requirements, the Association shall cause the Facility/ies to be inspected i) annually; and ii) after major storm events that cause visual damage to the Facility/ies; and iii) upon notification from the City to inspect. The inspection shall be performed 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 during 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.
9.3 Repair and Reconstruction. The Association shall repair and/or reconstruct the Facility/ies as it determines is necessary, and, at 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 written reports regarding major repair or reconstruction to the City in accordance with City Requirements.
9.4 Stormwater Budget Line Items & Funding. The Assessments shall include amounts for upkeep and reconstruction of the Facilities. The Association shall maintain two (2) separate funds in its
rements.
9.4 Stormwater Budget Line Items & Funding. The Assessments shall include amounts for upkeep and reconstruction of the Facilities. The Association shall maintain two (2) separate funds in its budget for the Facility/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 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 Facility/ies. The Major Reconstruction Fund shall be maintained in an account that is separate account from the Association's general account as described below. At a minimum, the Association shall, annually, earmark $2,337.00 from its collected Assessments for the Inspection and Maintenance Fund and $560.00 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 Facility/ies. The Association shall set Assessments at a sufficient amount to fund each of the two (2) line items in addition to the Association's other obligations.
The Association may compel payment of Assessments through all remedies provided in this Declaration or otherwise available under law.
9.5 Assessments/Liens. In addition to payment of Assessments each Lot shall be subject to assessments by the Association for the purpose of fulfilling the Association's obligations under this Article 00683-004/00063363-5
s. In addition to payment of Assessments each Lot shall be subject to assessments by the Association for the purpose of fulfilling the Association's obligations under this Article 00683-004/00063363-5 21 Book8287 - Page60 Page 30 of 59 and under the Stormwater Covenant. Such assessments shall be collected in the manner set forth in this Declaration. As allowed under N.C.G.S. § 47F, or successor statutes, all assessment 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 Covenant and/or as Attorney in Fact for the Association, as provided in the recorded Stormwater Covenant.
9.6 Stormwater Expenditures Receive Highest Priority. Notwithstanding any contrary provisions of the covenants of which this Article is 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 taxes and assessments and other statutorily required expenditures) of all Association expenditures.
9.7 Separate Account for Major Reconstruction Fund. The Association shall maintain the Major Reconstruction Fund for the Facility/ies 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/ies.
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,
awal 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 Facility, 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.
9.8 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 Association's affairs, the report shall so indicate.
The Officer's signature and attestation shall be notarized. At a minimum, each report shall include: i.
the annual Facilities inspections report described in Subsection 9.2 above; ii. a bank or account statement showing the existence of the separate Major Reconstruction Fund described in Subsection 9.7 above and the balance in such fund as of the time of submission of the report; iii. 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; and
as of the time of submission of the report; iii. 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; and iv. the amount of Association dues being set aside for the current year for each of the two stormwater funds - the Inspection and Maintenance Fund and the Major Reconstruction Fund.
9.9 Facility/ies to Remain with Association; Lot 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 is unable to perform its obligations under this Agreement, all Lot Owners as defined in the Stormwater Covenant, excluding the Lots owned by the Association, shall be jointly and severally liable to fulfill the Association's obligations under this 00683-004/00063363-5 22 22