BOOK PAGE NORTH CAROLINA 1983 050 5 NEW HANOVER COUNTY DECLARATION OF COVENANTS, CONDITIONS & RESTRICTIONS FOR LANDFALL PARK THIS DECLARATION, made on the date hereinafter set forth by EASTWOOD GROUP, LLC,. hereinafter referred to as "Declarant".
WITNESSES: more WHEREAS, Declarant is the owner of certain property in Harnett Township, New Hanover County, North Carolina, which is particularly described as follows: All of Lots 1 and 2 as shown on the plat entitled "Landfall Park" recorded in Map Book 35 Page 130 (the "Plat"), Office of the Register to Deed of New Hanover County, NC. (hereinafter referred to as the "Properties"); and together with all private streets, roads, easements, detention or retention ponds as shown 000006 on the aforesaid plat.
WHEREAS, Declarant is developing the Property as an office and commercial use center to be known as Landfall Park and in connection there with wishes to insure the proper use, development and improvement of the Properties so as to protect the Owners and Occupants of the Lots thereinby restricting the use of all Lots for purposes consistent with the overall development of the Properties and by encouraging the erection of attractive, harmonious, permanent Improvements appropriately located on the Properties.
NOW, THEREFORE, Declarant hereby declares that all of the Properties described above, together with any additional property annexed pursuant to Article IX, Section 4 of this Declaration, shall be held, sold and conveyed subject to the following easements, restrictions, etc., which are for the purpose of protecting the value and desirability of, and which shall run with the real property and be binding on all parties having any right, title or interest in the described Properties or any part thereof,
protecting the value and desirability of, and which shall run with the real property and be binding on all parties having any right, title or interest in the described Properties or any part thereof, their heirs, successors and assigns, and shall inure to the benefit of each owner thereof.
SECTION 1.
ARTICLE I DEFINITIONS "Association" shall mean and refer to LANDFALL PARK OWNER'S ASSOCIATION, INC., its successors and assigns.
SECTION 2.
"Building" shall mean and include, but shall not be limited to, both the main portion of a structure built for permanent use and all projections or extensions thereof, including, but not limited to, garages, outside platforms and decks, canopies, porches and outbuildings.
SECTION 3.
"Common Area" shall mean all real and personal property, and interests therein, now or hereafter owned or leased by the Association for the common use and enjoyment of Owners as provided under this Declaration, and their Occupants, lessees and employees, including and not limited to private streets and roads, fences, any directory signage, gravity sewer lines not maintained by a public agency, detention ponds as herein defined.
SECTION 4.
"Declarant" shall mean and refer to Eastwood Group, LLC, and its successors and assigns to whom Eastwood Group, LLC, assigns in writing its rights hereunder as Declarant.
SECTION 5.
"Improvements" shall mean and include, but shall not te limited to, buildings, outbuildings, roads and driveways (other than those dedicated to public use), parking areas, fences, 406475 BLV.
1983 0506 screened walls, retaining walls, loading areas, signs, utilities, lawns, landscaping, irrigation and walkways located on Lots, together with any construction work or treatment done or applied to a Lot in connection therewith.
SECTION 6.
ding areas, signs, utilities, lawns, landscaping, irrigation and walkways located on Lots, together with any construction work or treatment done or applied to a Lot in connection therewith.
SECTION 6.
"Lot shall mean and refer to any numbered or lettered plot of land shown upon any recorded subdivision map of the Properties with the exception of Common Area, streets and roads. At the time this Declaration is recorded, the Lots shall consist of Lots 1 and 2 as shown on the Plat.
SECTION 7.
"Members" shall mean and refer collectively to the Members of the Association.
SECTION 8.
"Occupant" shall mean any person or entity who occupies, or who has the right to occupy, all or part of any Lot which is a part of the Properties, whether such occupancy or right of occupancy is based on ownership, lease, license or easement.
SECTION 9.
"Owner" shall mean and refer to the record Owner, whether one or more persons or entities, of a fee simple title to any Lot, or any portion thereof, which is a part of the Properties, including contract sellers, but excluding those having such interest merely as security for the performance of an obligation.
SECTION 10.
"Properties" shall mean and refer to that certain real property hereinabove described, and such additions thereto a may hereafter be bought within the jurisdiction of the Association and this Declaration.
SECTION 1.
ARTICLE II PROPERTY RIGHTS OWNER'S EASEMENTS OF ENJOYMENT. Every Owner shall have a right and easement of enjoyment in and to the Common Area which shall be appurtenant to and shall pass with the title to every Lot, subject to the following provisions: (a) the right of the Association to permit the use of and to charge reasonable fees for the use of the Common Area;
to and shall pass with the title to every Lot, subject to the following provisions: (a) the right of the Association to permit the use of and to charge reasonable fees for the use of the Common Area; (b) the right of the Association to suspend the voting rights of an Owner or Occupant for any period during which any assessment against his Lot remains unpaid or for any infraction of its published rules and regulations; (c) the right of the Association to grant easements and rights of way, to dedicate or transfer all or any part of the Common Area to any public agency, authority or utility for such purposes and subject to such conditions as may be agreed to by the Association consistent with the terms of this Declaration and the Articles and bylaws of the Association. Provided, however, that no dedication or transfer of any Common Area shall be effective unless an instrument signed by (i) two-thirds (2/3) of the Members and (ii) Declarant, so long as Declarant has the right to select a majority of the members of the Association's Board of directors, agreeing to such dedication or transfer, has been recorded; (d) the right of the Association to impose regulations for the use and enjoyment of the Common Area and any improvements thereon, which regulations may further restrict the use of the Common Area; and (e) the right of the Association, in accordance with its Articles and Bylaws, to borrow money for the purpose of maintaining and/or improving the Common Area and facilities thereon.
2 BOOK PAGE 1983 0507 SECTION 2.
EASEMENTS OVER LANDFALL PARK DRIVE.
Declarant is presently the owner of a private street designated as Landfall Park Drive, which is running through the properties.
Declarant hereby grants a perpetual, non-exclusive right-of-way of
IVE.
Declarant is presently the owner of a private street designated as Landfall Park Drive, which is running through the properties.
Declarant hereby grants a perpetual, non-exclusive right-of-way of ingress, egress and regress over and across Landfall Park Drive to the Association, its members, occupants, successors and assigns as shown on the map of Landfall Park. Declarant reserves the right to convey portions of the underlying fee for Landfall Park Drive to lot owners subject to the perpetual easement granted to the Association over said Landfall Park Drive. In consideration for the perpetual easement, over and across Landfall Park Drive, the Association shall be responsible for maintenance costs (including the cost of any capital improvements and ad valorem taxes) of Landfall Park Drive. Such expense shall be part of the common expenses of the Association, payable by the lot owners as part of the Annual Assessments and/or Capital Improvement Special Assessment prorated among and levied against the Lots in accordance with the formula established in SECTION 5 of ARTICLE V of this Declaration. Provided however, that in the event Landfall Park Drive is accepted for maintenance by the North Carolina Department of Transportation or any other public agency or entity, the obligation of Lot owners to share in the maintenance costs of said Drive through the Association common expenses shall terminate immediately upon such acceptance.
SECTION 3.
DELEGATION OF USE. Any Owner may delegate, in accordance with this Declaration, his rights of use and enjoyment of the Common Area and its facilities to an occupant.
SECTION 4. LEASES OF LOTS. Any lease agreement between an Owner and a lessee for the lease of such Owner's lot or any part thereof
e and enjoyment of the Common Area and its facilities to an occupant.
SECTION 4. LEASES OF LOTS. Any lease agreement between an Owner and a lessee for the lease of such Owner's lot or any part thereof (including a lease of all or a portion of a Building constructed on a Lot) shall provide that the terms of the lease shall be subject in all respects to the provisions of this Declaration of Covenants, Conditions and Restrictions, the Articles of Incorporation and Bylaws of the Association and that any failure by the lessee to comply with the terms of the Declaration, Articles, Bylaws shall be a default under the terms of the lease. All leases of Lots, Buildings or any portions thereof shall be in writing. Provided, however, that as between the Association and a lot Owner, no lease agreement shall release the Lot Owner from ultimate responsibility for payment of all assessments due against that owner's Lot. Other than the foregoing, there are no restrictions on the right of any Owner to lease his lot.
ARTICLE III COMMON AREA CONVEYANCE The Declarant covenants for itself, its successors and assigns, that it shall convey to the Association, in fee simple, except where otherwise provided, and at no cost to the Association, those parcels of land and facilities described below after the Declarant has completed improvements thereon, if such be required, such that the facility is functionally complete. The Association shall accept the conveyance and immediately become responsible for all maintenance and operation of such properties. All said parcels of land may be conveyed to the Association subject to this Declaration and all easements, encumbrances, rights-of-way and restrictive covenants of record at the time of conveyance.
s. All said parcels of land may be conveyed to the Association subject to this Declaration and all easements, encumbrances, rights-of-way and restrictive covenants of record at the time of conveyance.
Properties to be conveyed by Declarant shall include, but shall not be limited to: (1) a perpetual easement over the private roads and right-ofway within the Properties, including but not limited to Landfall Park Drive shown on the Plat.
(2) any stormwater transmission and retention facilities, including any detention ponds located within the properties.
3 BOOK 1983 PAGE 0 50 8 (3) Common Areas designated as such on any subdivision plats recorded as to the Properties.
(4) Any easements as shown on the Properties.
(5) Privacy Fence to be constructed within the Properties.
Such transfers shall be subject to the provisions of this Declaration and to all easements and encumbrances, rights-of-way and restrictive covenants of record at the time of the conveyance.
The date(s) of said conveyance by the Declarant shall be at the Declarant's sole option; provided, however, all said conveyances shall take place on or before January 1, 2001.
SECTION 1.
ARTICLE IV MEMBERSHIP AND VOTING RIGHTS MEMBERS. Every Owner of a Lot which is subject to a lien for assessments shall be a Voting Member of the Association.
An Owner may assign in writing his membership voting rights to an Occupant upon such terms as the Association may prescribe.
Otherwise, membership and voting rights shall be appurtenant to, and may not be separated from, ownership of any Lot which is subject to assessment; provided, however, that no such assignment shall affect the obligation of the owner to pay the assessments described in ARTICLE V hereof.
LOT 1 2 Total Votes VOTES 1 1 2
hich is subject to assessment; provided, however, that no such assignment shall affect the obligation of the owner to pay the assessments described in ARTICLE V hereof.
LOT 1 2 Total Votes VOTES 1 1 2 In the event a Lot recombination or resubdivision is approved as set out in SECTION 2 of ARTICLE VII of this Declaration, votes among or between the recombined or resubdivided Lot shall be reallotted by the Board of Directors, in its sole discretion, however, that any such vote reallocation shall not decrease the proportionate voting share of any lots not then being resubdivided or recombined.
When more than one person holds an interest in any Lot, all such persons shall be Members. The vote or votes for such Lot shall be exercised as they among themselves determine, but in no event shall multiple Owners of a Lot be entitled to cast more than the vote to such Lot.
In the event additional property is annexed into the Center in accordance with the provisions of ARTICLE IX, SECTION 4 hereof, each additional Lot shown on a recorded plat shall be entitled to one vote per Lot, (i.e. Lot 3 shall have 1 vote and Lot 4 shall have 1 vote).
SECTION 2.
DECLARANT'S RIGHT TO SELECT DIRECTORS.
Notwithstanding anything to the contrary herein, until Lots 1 and 2 have been sold to Owners other than Declarant or until December 31, 2000, whichever occurs first, Declarant shall have the right to designate and select a majority of the Board of Directors of the Association. Whenever Declarant shall be entitled to designate and select any person to serve on any Board of Directors of the Association, the manner in which such person shall be designated shall be provided in the Articles of Incorporation and/ or Bylaws of the Association . Declarant shall have the right to remove any person
ociation, the manner in which such person shall be designated shall be provided in the Articles of Incorporation and/ or Bylaws of the Association . Declarant shall have the right to remove any person selected by it to act and serve on said Board of Directors and to replace such person with another person to act and serve in 4 1983 05 09 the place of any Director so removed. Any Director designated and selected by Declarant need not be the Owner or Occupant of a Lot in the Properties. Any representative of the Declarant serving on the Board of Directors of the Association shall not be required to disqualify himself from any vote upon any contract or matter between Declarant and the Association where Declarant may have a pecuniary or other interest. Similarly, Declarant, as a Member of the Association, shall not be required to disqualify itself upon any contract or matter between the Declarant and the Association where Declarant may have a pecuniary or other interest.
ARTICLE V COVENANT FOR MAINTENANCE AND ASSESSMENTS SECTION 1.
CREATION OF THE LIEN AND PERSONAL OBLIGATION OF LOT OWNERS FOR ASSESSMENTS. The Declarant, for each Lot owned within the Properties, and each Owner of any Lot or portion thereof, by acceptance of a deed therefor, whether or not it shall be so expressed in such deed, is deemed to covenant and agree to pay to the Association: (1) Annual Assessments or charges; (2) Special Assessments for capital improvements and/ or for such assessments to be establishes and collected as hereinafter provided; (3) any fine, charge or late fee which may be levied by the Association against an owner pursuant to the provisions of this Declaration; and (4) to the appropriate governmental taxing authority: (a) a
(3) any fine, charge or late fee which may be levied by the Association against an owner pursuant to the provisions of this Declaration; and (4) to the appropriate governmental taxing authority: (a) a pro rata share of ad valorem taxes levied against the Common Area; and (b) a pro rata share of assessments for public improvements to or for the benefit of the Common Area if the Association shall default on the payment of either or both for a period of (6) months, all as hereinafter provided. Such annual and special assessments, and any fine, late fee or other charge, together with interest, costs and reasonable attorney's fees, shall be a charge on the land and shall be a continuing lien upon the property against which each such assessment, fine, late fee or charge is made. Each such assessment, fine or late fee and charge together with interest, costs and reasonable attorney's fees, shall also be the personal obligation of the entity which was the Owner of the Lot at the time when the assessment, fine, late fee or charge fell due. The personal obligation of a Lot Owner for delinquent assessments shall not pass to its successors in title unless expressly assumed by them.
SECTION 2.
PURPOSE OF ASSESSMENTS.
(a) The assessments levied by the Association shall be used exclusively to promote the health, safety and welfare of the Members of the Association, their Occupants, lessees and employees and in particular for the improvements and maintenance of properties, services and facilities devotes to this purpose or for the use and enjoyment of the Common Area, including but not limited to, the cost of repairs, replacements and additions, the cost of labor, equipment, materials, management and supervision, the payment of taxes assessed against the Common Area, the maintenance
limited to, the cost of repairs, replacements and additions, the cost of labor, equipment, materials, management and supervision, the payment of taxes assessed against the Common Area, the maintenance of private streets (including the costs of maintenance of Landfall Park Drive as required in SECTION 2 of ARTICLE II of this Declaration), stormwater run-off facilities, detention ponds, directory signage, fences, walls and other elements of the Common Area, the procurement and maintenance of insurance in accordance with the Bylaw, the payment of charges for street lights located in the Common Areas, the payment of charges for water and sewer services furnished to the Common Area, the employment of attorneys and other professionals to represent the Association when necessary, and such other needs as may arise.
(b) All monies collected by the Association shall be treated as the separate property of the Association, and such monies may be applied by the Association to the payment of any expense of operating and managing the Properties, or to the proper undertaking of all acts and duties imposed upon it by virtue of this 5 LUVI 1 9 8 3 0 5 10 Declaration, the Articles of Incorporation and the Bylaws of the Association. As monies for any assessment are paid unto the Association by any Member, the same may be commingled with monies paid to the Association by the other Members. Although all funds and common surplus, including other assets of the Association, and any increments thereto profits derived therefrom shall be held for the benefit of the Members of the Association, no Member of the Association shall have the right to assign, hypothecate, pledge or in any manner transfer his membership interest therein, except as
for the benefit of the Members of the Association, no Member of the Association shall have the right to assign, hypothecate, pledge or in any manner transfer his membership interest therein, except as an appurtenance to his Lot. When an Owner shall cease to be a Member of the Association by reason of his divestment of ownership of his Lot, by whatever means, the Association shall not be required to account to such Member for any share of the fund or assets of the Association, or which may have been paid to the Association by such Member, as all monies which any Member has paid to the Association which may be used in the operation and management of the Properties and/ or the Common Areas.
SECTION 3.
ANNUAL ASSESSMENTS FOR LOT OWNERS. The Association shall levy, in each calendar year, Annual Assessments for the purpose of maintaining and operating all portions of the Common Area including utility cost, fixtures and personal property related thereto. Such Annual Assessments shall be levied only against the Lots and Lot Owners thereof. Until December 31 of the year of the conveyance of the first Lot to an Owner, the Annual Assessment shall be $4,000.00 per vote (as assigned in SECTION 1 of ARTICLE V above) per Lot. In subsequent years, the amount of the Annual Assessment shall be as established by the Board of Directors, in its sole discretion, and may be increased or decreased from year to year by the Board, without consent of Lot Owners, so long as any increase does not exceed 10% from the prior year. Provided if the increase does exceed 10% from the prior year said increase shall be approved by 2/3 of the lot owners.
SECTION 4.
CAPITAL IMPROVEMENT SPECIAL ASSESSMENTS. In addition to the annual assessments authorized above, the Association may
the prior year said increase shall be approved by 2/3 of the lot owners.
SECTION 4.
CAPITAL IMPROVEMENT SPECIAL ASSESSMENTS. In addition to the annual assessments authorized above, the Association may levy, in any calendar year, a special assessment for the purpose of defraying in whole or in part the costs of any construction, reconstruction, repair or replacement of a capital improvement upon the Common Area including fixtures and personal property related thereto, provided that any such assessment shall be approved by majority vote of the Members who are voting in person or by proxy at a meeting duly called for this purpose. The Capital Improvement Special Assessments shall be levied against each Lot in the same manner as Annual Assessments, as set forth in SECTION 5 below.
Written notice of any meeting called for the purpose of taking any action authorized under this SECTION 4 shall be sent at least thirty (30) days but not more than sixty (60) days in advance of the meeting. At the first such meeting called, the presence of Voting Members or the proxies entitles to cast twenty percent (20%) of the votes of the membership shall constitute a quorum. If the required quorum is not present, another meeting may be called subject to the same notice requirement, and the required quorum at the subsequent meeting shall be one-half (1/2) of the required quorum at the preceding meeting. No such subsequent meeting shall be held more that sixty (60) days following the preceding meeting.
SECTION 5.
RATE OF ASSESSMENTS. The Annual Assessments and Capital Improvement Special Assessments shall be levied against the Lots so that each Lot's portion of the assessment bears the same relationship to the total assessment as such Lot's appurtenant vote
Capital Improvement Special Assessments shall be levied against the Lots so that each Lot's portion of the assessment bears the same relationship to the total assessment as such Lot's appurtenant vote in the Association bears to the total number of votes then outstanding in the Association. (For example, if a Lot has one (1) vote in the Association out of a total of four (4) possible votes, such Lot and its Owner would be liable for one-fourth (1/4) of any assessment.
6 BOOK 1 9 8 3 0 5 1 1 SECTION 6.
DUE DATE AND COMMENCEMENT OF ANNUAL ASSESSMENTS; DATES. The Annual Assessments provided for herein shall be collected on an annual basis, or other periodic basis established by the Board, and shall commence: (i) as to each Lot, on the date the Declarant conveys the Common Area to the Landfall Park Owners Association which shall occur no later than January 1, 1997. The first annual assessments shall be adjusted accordingly to the number of months remaining in the calendar year. At least thirty (30) days in advance of each annual assessment period, the Board of Directors shall fix the amount of the Annual Assessment applicable to every Owner subject thereto. The due dates for all such annual assessments shall be December 1 of each year, or such other date as established by the Board of Directors. The Association shall, upon demand, and for a reasonable charge, furnish a certificate signed by an officer of the Association setting forth whether the assessments on a specified Lot has been paid.
SECTION 7.
EFFECT OF NONPAYMENT OF ASSESSMENTS: LATE FEES: REMEDIES OF THE ASSOCIATION. Any assessment not paid within thirty (30) days after the due date shall bear interest from the due date at the rate of twelve percent (12%) per annum. In addition, the
S: REMEDIES OF THE ASSOCIATION. Any assessment not paid within thirty (30) days after the due date shall bear interest from the due date at the rate of twelve percent (12%) per annum. In addition, the Association may impose a late fee of $100.00 per month for each month any assessment remains unpaid for 30 days after its due date, up to a maximum late fee of $1,200. per delinquent assessment per Lot. The Association may bring an action at law against the Owner personally obligated to pay the same or foreclose the lien created herein against the property in the same manner as created herein against the property in the same manner as prescribed by the laws of the State of North Carolina for the foreclosures of deeds of trust, and late fees, interest, costs and reasonable attorney's fees for representation of the Association in such action of foreclosures shall be added to the amount of such assessment.
Owner may waive or otherwise escape liability for any assessment provided for herein by non-use of the Common Area or abandonment of his Lot, nor shall damage to or destruction to any improvements on the Common Area, or any Lot by fire or other casualty result in any abatement of diminution of the assessments provided herein.
No SECTION 8.
EFFECT OF DEFAULT IN PAYMENT OF AD VALOREM TAXES OR ASSESSMENTS FOR PUBLIC IMPROVEMENTS BY ASSOCIATION. Upon default by the Association in the payment to the governmental authority entitled thereto of any ad valorem taxes levied against the Common Area or assessments for public improvements, which default shall continue for a period of six (6) months, each Owner of a Lot shall become personally obligated to pay to the taxing or assessing governmental authority a portion of such unpaid taxes or
default shall continue for a period of six (6) months, each Owner of a Lot shall become personally obligated to pay to the taxing or assessing governmental authority a portion of such unpaid taxes or assessments in an amount determined by dividing the total taxes and/or assessments due the governmental authority among the Owners in accordance with the formula established in SECTION 5 of this ARTICLE. If such sum is not paid by the Owner within thirty (30) days following receipt of notice of the amount due, then such sum shall become a continuing lien on such Lot and the taxing or assessing governmental authority may either bring an action at law or may elect to foreclose the lien against such Lot.
SECTION 9.
SUBORDINATION OF THE LIEN TO MORTGAGES. The liens provided for herein shall be subordinate to the lien of any first mortgage or deed of trust. Sale or transfer of any Lot shall not affect the assessment lien or liens provided for in the preceding section.
However, the sale or transfer of any Lot which is subject to any such first mortgage or deed of trust, pursuant in lieu of foreclosure thereof, shall extinguish the lien of such assessments as to the payment thereof which become due prior to such sale or transfer shall relieve such sale or transfer. No such sale or transfer shall relieve such Lot from liability for any assessments thereafter becoming due or from the lien thereof, but the liens provided for herein shall continue to be subordinate to the lien of any first mortgage or deed of trust.
7 1 9 8 3 0512 ARTICLE VI ARCHITECTURAL CONTROL SECTION 1.
ARCHITECTURAL CONTROL.
Pursuant to Restrictions which Landfall Associates has recorded in Book 1941 at Page 6 of the New Hanover County Register of Deeds, Landfall Associates now
AL CONTROL SECTION 1.
ARCHITECTURAL CONTROL.
Pursuant to Restrictions which Landfall Associates has recorded in Book 1941 at Page 6 of the New Hanover County Register of Deeds, Landfall Associates now exercises all rights of architectural control on this property for a period of ten (10) years from the date of the Restrictions.
During that period of time, the Declarant for so long as Declarant shall have the right to appoint a majority of the Board of Directors of the Association, shall exercise such additional rights of architectural control as set out in this Declaration.
Thereafter, such architectural control rights provided for in this Declaration shall be exercised by an Architectural Control Committee (the "ACC") consisting of three (3) or more persons appointed by the Board of Directors of the Association.
SECTION 2.
PURPOSE. Declarant, or the ACC, as the case may be, shall regulate the external design, appearance, use, location such a manner so as to preserve and enhance values and to maintain a harmonious relationship among structures and the natural vegetation and topography.
SECTION 3.
CONDITIONS. No improvements, landscaping, grading alterations, repairs, change of paint colors, excavations, changes in grade or other work which in any way alters any Lot or the exterior of the Improvements located thereon from its natural or improved state existing on the date such Lot was first conveyed in fee by the Declarant to an Owner shall be made or done without the prior written approval of Declarant, or the ACC, as the case my be.
No improvement or other structure shall be commenced, erected, maintained, altered or removed without the prior written approval of Declarant or the ACC, as the case may be.
SECTION 4.
PROCEDURES. During the period of time in which
re shall be commenced, erected, maintained, altered or removed without the prior written approval of Declarant or the ACC, as the case may be.
SECTION 4.
PROCEDURES. During the period of time in which Landfall Associates is entitled to review and approve any proposed improvements or plans, all such plans and specifications for any improvements shall be submitted to Landfall Associates in accordance with the procedures recorded in the Restrictions described in Book 1941 at Page 6 of the New Hanover County Registry.
After review by Landfall Associates, the Declarant or the ACC, as the case may be, shall evaluate such plans and specifications in light of the purpose of this ARTICLE as set forth in SECTION 2 above, and may impose such additional requirements as they deem necessary and appropriate which are not inconsistent with the requirements of Landfall Associates. In the event Declarant or the ACC fails to approve, modify or disapprove in writing an application within fifteen (15) days after the plans and specifications have been reviewed and approved by Landfall Associates then approval will not be required and this ARTICLE will be deemed to have been fully complied with. After the right of Landfall Associates to review any plans or specifications lapses or in the event that Landfall Associates delegates or transfers this authority to the Declarant or the ACC, then any persons desiring to construct any Improvement, or make any alteration or change described in Section 3, above, shall submit the plans and specifications therefor, showing the nature, kind, shape, height, materials and locations of the same to the Declarant or to the ACC, as the case may be, which shall evaluate such plans and specifications in light of the purpose of these ARTICLE as set
hape, height, materials and locations of the same to the Declarant or to the ACC, as the case may be, which shall evaluate such plans and specifications in light of the purpose of these ARTICLE as set forth in Section 2 above. In the event the Declarant or the ACC fails to approve, modify or disapprove in writing an application within thirty (30) days after the plans and specifications have been submitted to it, approval will not be required and this article will be deemed to have been fully complied with. Following appointment of the ACC, an applicant may appeal an adverse ACC decision to the Board of Directors of the Association which may reverse or modify such decision by a two-thirds (2/3) vote of the 8 Directors.
SECTION 5.
case may be, BOOK 1983 PAGE 0 5 1 3 DESIGN GUIDELINES. Declarant, or the ACC, as the may adopt and impose, from time to time, design or more specifically define and describe design standards and allowable uses within the properties.
guidelines Declarant or the ACC, as the case may be, in its sole discretion, may approve variances on a case by case basis from the Design Guidelines contained in this Declaration, the restrictions set out in ARTICLE VII of this Declaration, or the additional design guidelines established by Declarant or by the ACC, as the case may be.
Provided the Declarant acknowledges that Landfall Associates retains certain approval rights and design guidelines for any improvements placed on this property for a period of ten (10) years from the date of the recording of the Restrictions imposed by Landfall Associates on this property, and that in the event of any conflicts or inconsistencies between the approval rights and design guidelines of Landfall Associates and those of the Declarant or the
ndfall Associates on this property, and that in the event of any conflicts or inconsistencies between the approval rights and design guidelines of Landfall Associates and those of the Declarant or the ACC for the Association then the decision of Landfall Associates shall control.
ARTICLE VII USE AND IMPROVEMENTS; RESTRICTIONS SECTION 1.
LAND USE AND BUILDING TYPE. Lots 1 and 2 shall be used for office and/or hotel purposes, provided that only Lot 2 in Landfall Park shall be used as a hotel site without the express written permission of Landfall Hotel Group, LLC or its successors or assigns. Except for the limitation on the hotel use, the declarant, or the ACC, as the case may be, shall determine, in its sole discretion, whether or not any present or intended use of a Lot by an Owner of Occupant is within the meaning and intent of this stated use and whether such use is in keeping with the purposes referred to in ARTICLE VI, SECTION 2 above.
SECTION 2.
RECOMBINATION AND SUBDIVISION OF LOTS. No Lots shall be combined nor shall any Lots be further subdivided from that shown on the recorded plat(s) of the Properties unless the prior written consent of Declarant of the ACC, as the case may be, shall be obtained. Any permitted recombination or subdivision shall meet all applicable requirements of New Hanover County. In the event of any permitted recombination or resubdivision, the Board of Directors of the Association, in its sole discretion and without consent of any Members, shall reallocate the votes set out in SECTION 1, ARTICLE IV of this Declaration. Such reallocations shall be effective from the date of recording an amendment to this Declaration setting out such reallocations.
SECTION 3.
IMPROVEMENTS, SPECIFICATIONS AND RESTRICTIONS.
(a) Maintenance.
reallocations shall be effective from the date of recording an amendment to this Declaration setting out such reallocations.
SECTION 3.
IMPROVEMENTS, SPECIFICATIONS AND RESTRICTIONS.
(a) Maintenance.
Each Owner and Occupant shall be responsible for keeping its Lot (whether or not improved), Buildings and other Improvements in a safe, clean, neat and orderly condition and shall prevent rubbish from accumulating on its Lot.
A (b) Commencement and Completion of Construction. A building permit must be obtained and construction commenced as to a Building within twelve (12) months from the date Declarant or the ACC, as the case may be, approves the plans for such Building, or approval of such plans will be deemed to have expired and the Owner will be required to resubmit all plans and specifications for approval.
Building shall be completed in accordance with approved plans and specifications and a certificate of occupancy issued thereof within fifteen (15) months from the date a building permit is issued for such Building. In the event any Building is not so completed within the requisite time period, the Owner of the Lot on which said Building is located shall be assessed a fine of $250. per day 9 BOCK 1983 PAGE 0 5 1 4 for each day the Building is incomplete following the date required for completion; provided, however, that Declarant or the ACC, as the case may be, in its sole discretion, may extend the required completion date for any Building by a written extension agreement executed by Declarant or by a majority of the members of the ACC, as the case may be.
Any fine assessed pursuant to this subparagraph shall be deemed an assessment, collectible pursuant to ARTICLE V of this Declaration.
(၁) Repair or Removal of Improvements.
Any Improvement
ase may be.
Any fine assessed pursuant to this subparagraph shall be deemed an assessment, collectible pursuant to ARTICLE V of this Declaration.
(၁) Repair or Removal of Improvements.
Any Improvement damaged in whole or in part by casualty, fire, windstorm or from any other cause, must be promptly restored or all debris removed and the Lot restored to a sightly condition. Such rebuilding or removal of debris shall be completed within twelve (12) months from the date of the casualty unless a written extension is granted by Declarant or by ACC, as the case may be.
(ā) Violation. Each Owner and Occupant shall be entitled to file complaints with Declarant or the ACC, as the case may be, alleging a violation of this SECTION 3. Declarant or the ACC, as the case may be, shall designate an agent (who may be a member of the ACC) who shall be readily available to investigate any complaints filed. If such agent shall conclude that any complaint files has merit, the alleged violator shall be promptly notified in writing and, upon receipt of the written notice of the complaint, the alleged violator shall have five (5) business days within which to begin in good faith to cure the violation or within which to file an appeal to Declarant or the ACC, as the case may be. If the alleged violator does not begin in good faith to cure the violation or file an appeal within the five (5) days provided, the agent may cause the violation to be cured at the expense of the Owner or Occupant deemed to be in violation.
If the alleged violator appeals to Declarant or to the ACC, the appeal shall be heard within seven (7) days. If Declarant or at least two (2) members of the ACC, as the case may be, upholds the findings of the agent, Declarant or the ACC, as the case may
ACC, the appeal shall be heard within seven (7) days. If Declarant or at least two (2) members of the ACC, as the case may be, upholds the findings of the agent, Declarant or the ACC, as the case may be, may cause the violation to be cured at the expense of the Owner or Occupant in violation, if the violator has not cured such violation within a reasonable time as determined by Declarant or the ACC, as the case may be.
By purchasing or leasing property subject to this Declaration, each Owner and Occupant binds itself, its successors and assigns, to pay to the Association the actual cost to cure any violation hereunder, together with liquidated damages of ten percent (10%) of such cost. Such cost shall be the personal obligation of such Owner and Occupant, and shall become a part of the Annual Assessment or charge set forth in ARTICLE V, SECTION I, subject to the lien rights set forth in ARTICLE V, SECTION 8.
(e) In the event that there are any conflicts or inconsistencies between the restrictions and specifications set forth in this article in the Declaration and those established in the Restrictions promulgated by Landfall Associates, then the restrictions promulgated by Landfall will control.
ARTICLE VIII UTILITY, DRAINAGE AND ACCESS EASEMENTS; EMERGENCY EASEMENT SECTION 1. UTILITY AND DRAINAGE EASEMENTS. Easements for installation and maintenance of utilities and drainage facilities are reserved as indicated on recorded plats of the Properties. In addition to easements shown on recorded plats, there is hereby reserved an easement fifteen feet (15') in width within and along each Lot line within the Properties for the purpose of installation, repair, maintenance and inspection of water, sewer 10 BOOK 1 9 8 3 0515
ed an easement fifteen feet (15') in width within and along each Lot line within the Properties for the purpose of installation, repair, maintenance and inspection of water, sewer 10 BOOK 1 9 8 3 0515 gas, electric, telephone and cablevision lines or other utility lines, for the maintenance and repair of detention ponds and other Common Areas, and for maintaining and repairing drainage cuts and storm sewer lines. Within all such drainage and utility easements no structures, planting or other material shall be placed or permitted to remain which may interfere with the installation and maintenance of utilities, or which may change the direction of flow of drainage channels in the drainage easements, or which may obstruct or retard the flow of water through drainage channels in the easements. Provided, however, that Lot Owners may subject to all approvals required under ARTICLE VI and VII of this Declaration, install landscape planting, parking areas and driveways within easement areas, if such planting, parking areas and driveways within easement areas, if such planting, parking areas and driveways do not interfere with the installation or maintenance of the utilities, or interfere with or change the direction of flow of water in drainage channels, and provided that it shall be the responsibility of the Lot Owner to remove and to repair or replace such plantings or paved areas if necessary to allow access to the easement area for maintenance and repairs.
An easement is hereby established for the benefit of the City of Wilmington and New Hanover County (and any other person or firm providing services to the Properties under agreement with or at the direction of the Association) over all Common Areas as may be reasonably necessary for the setting, removal and reading of
n or firm providing services to the Properties under agreement with or at the direction of the Association) over all Common Areas as may be reasonably necessary for the setting, removal and reading of electric and water meters, and the maintenance and replacement of electric, water, sewer and drainage facilities and for the electric, water, sewer and drainage facilities and for the fighting of fires and collection of trash. The Association shall have the power and authority to grant and establish upon, over and across the Common Areas such additional easements as are necessary or desirable for the providing of service or utilities to the Common Areas, Lots or Affiliate Lots.
Furthermore, in addition to the foregoing reserved specific easements, the Declarant, so long as it appoints a majority of the Board of Directors of the Association, and thereafter the Association, may cut and create drains and drainways along, over or across any Lot, both above ground and underground, for the purpose of facilitating the removal of surface water whenever such action may appear to be necessary in order to maintain reasonable standards of health, safety and appearance in the Properties.
These reservations of easements expressly include the right to cut any trees, bushes, shrubs or growth, to grade, cut or ditch the soil and to take any other action necessary to complete installation, and/or to repair and maintain the utilities and facilities located therein.
SECTION 2. ACCESS EASEMENT. The Association is hereby granted an access easement over and across all of Lot 2 of the Properties as may be necessary to operate, maintain and repair the detention pond located in the Common Area adjacent to Lot 2. The Association, its employees, contractors and agents, shall have the
e Properties as may be necessary to operate, maintain and repair the detention pond located in the Common Area adjacent to Lot 2. The Association, its employees, contractors and agents, shall have the power and authority to enter onto Lot 2, including the right to enter with trucks and earth-moving equipment, to perform such functions. Neither the Association nor its employees, contractors or agents shall be responsible for damage to paved, grassed or landscaped areas of sail Lot in exercising the access rights hereunder in a reasonable manner.
SECTION 3. EMERGENCY EASEMENT. In the event of any emergency originating within a Lot, which emergency threatens other Lots, the owners or occupants thereof and/or the Common Area, the Association is hereby granted an easement on and over all Lots for the purpose of remedying or abating the cause of such emergency. All costs incurred by the Association is remedying or abating the cause of such emergency shall be reimbursed by the owner of the Lot upon 11 BOOK 1983 PAGE 0516 which the emergency originated, and such costs shall be a charge on the land and the personal obligation of the owner of the Lot enforceable as an assessment pursuant to the provisions of ARTICLE V of the Declaration.
ARTICLE IX SECTION 1. ENFORCEMENT. The Association, and any Owner or Occupant, shall have the right to enforce, by any proceeding at law or equity, all restrictions, conditions, covenants, reservations, liens and charges now or hereafter imposed by the provisions of the Declaration, the Articles of Incorporation or Bylaws of the Association. Failure by the Association or by any Owner to enforce any covenant or restriction herein contained shall in no event be deemed a waiver of the right to do so thereafter. The Association
e Association. Failure by the Association or by any Owner to enforce any covenant or restriction herein contained shall in no event be deemed a waiver of the right to do so thereafter. The Association shall have the right to request that law enforcement, public safety and animal control officers come on the Properties to facilitate the enforcement of the laws, codes and ordinances of any governmental authority.
SECTION 2. SEVERABILITY. Invalidation of any one of the covenants or restrictions by judgment or court order shall not affect any other provision which shall remain in full force and effect.
SECTION 3. AMENDMENT. The covenants and restrictions of this Declaration shall run with and bind the land for a term of twenty (20) years from the date this declaration is recorded, after which time they shall be automatically extended for successive periods of ten (10) years. This Declaration may be amended by an instrument signed by (a) owners holding at least sixty-seven percent (67%) of the then outstanding votes in the Association, and (b) Declarant, for so long as Declarant has the right to select a majority of the members of the Board of Directors of the Association, provided that no amendment shall alter any obligation to pay ad valorem taxes or assessments for public improvements, as herein provided, or affect any lien for the payment thereof established herein. Any amendment must be properly recorded in the New Hanover County public records, and must refer to the recording data for this Declaration.
Notwithstanding anything in this SECTION 3 to the contrary, no consent by Members shall be required to amend this Declaration in connection with any of the following matters: a) the reallocation of votes among Lots occasioned by Lot
SECTION 3 to the contrary, no consent by Members shall be required to amend this Declaration in connection with any of the following matters: a) the reallocation of votes among Lots occasioned by Lot recombinations and/or resubdivisions, as set out in SECTION 1 of ARTICLE V of this Declaration; b) the annexation of additional land to the Properties by Declarant or by Landfall Associates, as set out in SECTION 4(b) of this ARTICLE 9.
SECTION 4. ANNEXATION.
(a) Additional Lots and Common Area may be annexed to the Properties with the consent of two-thirds (2/3) of the Voting Members.
(b) Additional property within the area described in SCHEDULE A attached hereto and incorporated herein by reference may be annexed to the Properties as Lots and/or Common Area by the Declarant or by Landfall Associates (whichever party owns the property described in Schedule A at that time) without the consent of Members, within ten (10) years of the date of this instrument.
The annexation of additional Lots as set out in this SECTION 4 shall be accomplished by and upon the recordation of an amendment to this Declaration duly recorded in the New Hanover County public records.
12 BOOK PAGE 1983 0517 IN WITNESS WHEREOF, the undersigned, being the Declarant herein, has caused this instrument to be executed, and Landfall Associates has joined in the execution of this instrument for the sole purpose of indicating its consent to the same as of the IST day of February, 1996.
STATE OF NORTH CAROLINA New Hanover County The foregoingy Annexed Certificate(s) of _LYNN RIVENBARK AND _ SARAH H. GRIFFIN Notary (Notaries) Public is/are certified to be correct.
This the by 2 day of Mary Sue Oots, Register of deeds BY: EASTWOOD GROUP, L.L.C., a North Carolina Limited Liability Co.
Jon Vincent, Manager Wisc
y (Notaries) Public is/are certified to be correct.
This the by 2 day of Mary Sue Oots, Register of deeds BY: EASTWOOD GROUP, L.L.C., a North Carolina Limited Liability Co.
Jon Vincent, Manager Wisc Earl M. Worsley, Jr., Manager (SEAL) (SEAL) LANDFALL ASSOCIATES, A North Carolina Joint Venture (General Partnership) February 96 19 buahu BY: (SEAL) Deputy/Mesistant Authorized Agent BY: (SEAL) Authorized Agent STATE OF NORTH CAROLINA COUNTY OF I, NEW HANNER LYNN RNENDARL a Notary Public in and for the State and County aforesaid, do hereby certify that Jon T.
Vincent and Earl M. Worsley, Jr., Managers of EASTWOOD GROUP, LLC, a Limited Liability Co., Grantor, personally appeared before me this date, and acknowledged the due execution of the foregoing instrument for and on behalf of EASTWOOD GROUP, L.L.C.
WITNESS my hand and Notarial Seal, this the 1st day of February, 1996.
NEW LYNN RIVENBARK NOTARY PUBLIC HANOVER COUNTY My Commission Expires: 5-18-98 STATE OF NORTH CAROLINA COUNTY OF NEW HANOVER I, Sarah H. Griffin Notary Public a Notary Public in and for the State and County aforesaid, do hereby certify that John C. Yelverton and S. Keith (oops, Authorized Agents for LANDFALL ASSOCIATES, personally appeared before me this date, and acknowledged the due execution of the foregoing instrument.
February, 1996.
WITNESS my hand and Notarial Seal, this the 1st day of My Commission Expires: 7.74.97 H Barak Griffin 13 Notary Publ SARAH NEW the.
H.
NOTARY PUBLIC HANOVER RIFFIN C.
BOOK 1983 PAGE 05 18 EXHIBIT "A" RECORDED AND VERIFIED MARY SUE OOTS REGISTER OF DEEDS NEW HANOVER CO. NC AT '96 FEB 2 AM 9 21 All of Lots 3 and 4 as shown on the plat entitled "Landfall Park" recorded in Map Book 35 Page 130 (the "Plat"), Office of the Register of Deeds of New Hanover County, NC.