Drawn By: James B. Watkins Recorded By: Moore & Alphin, PLLC Hold for: Moore & Alphin, PLLC 2004026679 FOR REGISTRATION REGISTER OF DEEDS Willie L.
Covington DURHAM COUNTY, NC 2004 MAY 25 04:38:02 PM BK:4402 PG:245-323 FEE: $245.00 NS:$25.00 INSTRUMENT # 2004026679 DECLARATION OF COVENANTS, RESTRICTIONS AND EASEMENTS FOR SOUTHPOINT TERRACE Article 1. EXHIBITS 2. DEFINITIONS TABLE OF CONTENTS Page 1 1 3. PLAN OF DEVELOPMENT OF THE PROJECT.
4. ASSOCIATION PROPERTY.....
A. Association Property.
B. Entrance Facilities.
C. Residential Streets...
D. Project Drainage System..
E. Common Parking Spaces F. Mail Service Areas.
G. Right To Add Additional Improvements .
H. Private Use...
I. Declarant's Rights To Use Association Property.
J. Conveyance Of Association Property.
K. Rules And Regulations 5. ASSOCIATION MEMBERSHIP AND GOVERNANCE.
A. Membership......
B. Voting Rights..
C. Voting By Multiple Owners..
D. Association Governance By Board.
E. Meetings And Membership Voting........
6. ASSESSMENTS AND OPERATING EXPENSES.
A. Affirmative Covenant To Pay Operating Expenses.
4 5 5 5 6 6 6 6 6 6 7 7 7 8 8 8 8 8 B. Establishment Of Liens..
C. Amount Of Base Assessment..
D. Special Assessment.
E. Individual Expense Assessments F. Deficit Funding Period G. Working Capital Contribution H. Collection Of Assessments.
I. Collection By Declarant.
J. Payments By Declarant And Institutional Mortgagees.
K. Rental And Receiver.
L. Assignment Of Claim And Lien Rights.
M. Certificate Of Payment...
N. Application Of Payments..
O. Assessment Payments.
P. Liability Of Residential Owners For Individual Assessments.
Q. Operating Expenses ..
7. INSURANCE AND CONDEMNATION.
A. Casualty Insurance.
B. Public Liability Insurance.
C. Fidelity Coverage.
D. Other Insurance.
E. Cancellation Or Modification
ual Assessments.
Q. Operating Expenses ..
7. INSURANCE AND CONDEMNATION.
A. Casualty Insurance.
B. Public Liability Insurance.
C. Fidelity Coverage.
D. Other Insurance.
E. Cancellation Or Modification F. Condemnation.
8. EASEMENTS.
Southpoint Terrace Declaration - 4/2/04 EXHIBIT E 8 9 9 10 10 11 11 11 11 12 12 12 12 12 12 12 15 15 15 15 15 15 15 16 A. Recognition Of Existing Easements..
B. Reservation And Establishment Of Easements...
C. Assignments.
9. MAINTENANCE AND REPAIR A. By The Association...
B. By The Residential Owners C. Party Walls.........
D. Inspections By Declarant.
10. ARCHITECTURAL CONTROL.
A. Establishment.
B. Purpose...
C. Development Standards ..
D. Requirement Of Committee Approval .
E. Obtaining Committee Approval.
F. Scope Of Review.
G. Variance From Standards.
H. Enforcement..
I. Subcommittees And Delegation Of Authority.
11. USE RESTRICTIONS.
12. ADDITIONAL LAND; WITHDRAWAL; BOUNDARY ADJUSTMENTS.
A. Additional Land.
B. Association Property Within Additional Land.
C. Hud/Va Approval 16 16 19 19 19 20 20 21 21 21 .21 .22 222222 23 23 23 23 28 28 .29 29 22 29 D. Withdrawal Southpoint Terrace Declaration - 4/2/04 EXHIBIT E 13. ENFORCEMENT; NON-MONETARY DEFAULTS; ASSOCIATION REMEDIES...
A. Enforcement.
B. Non-Monetary Defaults Of Residential Owners ..
C. Fines D. Negligence.
E. Responsibility For Occupants, Tenants, Guests, And Invitees...
F. Eviction Of Tenants, Occupants, Guests, And Invitees ..
G. No Waiver..
H. Rights Cumulative 14. AMENDMENT.
A. Prior To Turnover Date.
B. After The Turnover Date C. Scrivener's Errors.
D. Amendments To Declarant's Rights.
E. Fha/Va Approval Prior To Turnover Date.
F. Certification And Recording Of Amendments.....
G. Amendments To Satisfy Lending Requirements..
H. Boundary Adjustments 15. GENERAL PROVISIONS.
t's Rights.
E. Fha/Va Approval Prior To Turnover Date.
F. Certification And Recording Of Amendments.....
G. Amendments To Satisfy Lending Requirements..
H. Boundary Adjustments 15. GENERAL PROVISIONS.
A. Conflict With Other Association Documents..
B. Notice C. Captions, Headings And Titles ..
D. Context E. Severability.
Southpoint Terrace Declaration - 4/2/04 EXHIBIT E 29 29 29 30 30 30 31 31 31 ............ 31 31 31 .32 32 .32 .32 32 32 .33 33 33 .33.
33 33 F. Certain Rights Of Declarant.......
G. Association's Indemnification H. Disputes As To Use.
I. Delegation...
J. Term K. Rights Of Mortgagees ...
L. Approval Of Association Lawsuits By Residential Owners..
M. Rights And Requirements Of Governmental Authorities.
Exhibit A Exhibit B Exhibit C Legal Description of the Project Land Development Plan of the Project Stormwater Maintenance Plan Exhibit D City Stormwater Agreements Exhibit E Lodge Agreement Southpoint Terrace Declaration - 4/2/04 EXHIBIT E 33 34 34 34 34 35 35 35 DECLARATION OF COVENANTS, RESTRICTIONS AND EASEMENTS FOR SOUTHPOINT TERRACE THIS DECLARATION OF COVENANTS, RESTRCTIONS AND EASEMENTS FOR SOUTHPOINT TERRACE ("Declaration") is made this 27 general partnership ("Declarant”).
day of April 2004, by CENTEX HOMES, a Nevada OVERVIEW Declarant is the owner of the real property described on Exhibit “A” (the “Project Land”). Declarant plans to develop a residential community on the Project Land (the "Project") in multiple stages. Declarant desires to establish covenants, conditions, restrictions and easements for the Project to provide for the efficient administration, operation and maintenance of facilities, infrastructure, amenities and services which will benefit the Project.
restrictions and easements for the Project to provide for the efficient administration, operation and maintenance of facilities, infrastructure, amenities and services which will benefit the Project.
Accordingly, Declarant has created a North Carolina non-profit corporation known as the Southpoint Terrace Owners Association, Inc., to exercise certain rights and obligations in this Declaration with respect to the Project Land, whose membership shall be comprised of the owners of residential dwellings in the Project.
NOW, THEREFORE, in consideration of the premises and covenants herein contained, Declarant hereby declares that the Property (as hereinafter defined) shall be owned, held, used, transferred, sold, conveyed, demised and occupied subject to the covenants, restrictions, easements, reservations, regulations, burdens and liens hereinafter set forth, all of which shall run with the Project Land and any part thereof and which shall be binding upon all parties having any right, title or interest in the Project Land or any part thereof.
ARTICLE 1 EXHIBITS The following exhibits are attached to and made a part of this Declaration: Exhibit A Legal Description of the Project Land Exhibit B Exhibit C Development Plan for the Project Stormwater Maintenance Plan Exhibit D City Stormwater Agreements Exhibit E Lodge Easement ARTICLE 2 DEFINITIONS "Additional Land" means any real property that is contiguous to the Project Land, which may be subjected to the terms of this Declaration as provided in Article 12.
"Amendment(s)" mean(s) any and all amendments to this Declaration.
"Articles" mean the Articles of Incorporation of the Association.
"Assessment(s)" means a payment which a Residential Owner is obligated to pay to the Association as permitted or
to this Declaration.
"Articles" mean the Articles of Incorporation of the Association.
"Assessment(s)" means a payment which a Residential Owner is obligated to pay to the Association as permitted or contemplated by the Association Documents.
"Association" means Southpoint Terrace Owners Association, Inc., a North Carolina corporation not for profit.
"Association Documents" mean in the aggregate this Declaration, the Articles and Bylaws, and all of the instruments and documents referred to or incorporated therein, as they may be amended from time to time.
"Association Property" means any portions of the Residential Streets not dedicated to a Governmental Authority for public use, the portions of the Project Drainage System owned by the Association, the Entrance Facilities, and any other lands, systems, facilities, personal property, equipment, rights and easements which may be deeded, leased, granted, reserved, assigned or transferred to the Association, as described in this Declaration, together with all improvements thereon and equipment, facilities and rights associated therewith.
"Board" means the Board of Directors of the Association.
"Bylaws" mean the Bylaws of the Association.
"City" means the City of Durham, Durham County, North Carolina.
"City Stormwater Agreement” or “City Stormwater Agreements" means the applicable agreement or agreements in effect from time to time and entered into between the fee simple owner of the Ponds and the City regarding the maintenance of the Ponds, the current versions of which are attached hereto as Exhibit “D”.
"Committee” means the Architectural Control Committee for the Project established and empowered as provided in Article 10 of this Declaration.
"County" means Durham County, North Carolina.
xhibit “D”.
"Committee” means the Architectural Control Committee for the Project established and empowered as provided in Article 10 of this Declaration.
"County" means Durham County, North Carolina.
"Declarant" means Centex Homes, a Nevada general partnership, and any successor or assign to which Centex Homes specifically assigns all or part of the rights of Declarant by an express written assignment recorded in the Public Records.
"Declaration" means this document, as it may be amended or supplemented from time to time.
"Deficit" means the difference between the Operating Expenses incurred by the Association during a fiscal year of the Association occurring within the Deficit Funding Period, and the applicable Assessments payable by the Residential Owners as provided in Section F of Article 6.
"Deficit Funding Period” means the period during which Declarant shall fund the Deficit, as more particularly described in Section F of Article 6.
"Director" means a member of the Board.
"Entrance Facilities” means any Project entrance monuments or features, together with all related landscaping, signage, irrigation, and other ancillary improvements constructed as part of such entrance feature(s).
"Final Plat" means a final record plat approved by the City for a portion of the Project Land and recorded in the Public Records.
"Governmental Authorities" means the federal government, the State of North Carolina, the County of Durham, the City of Durham, and any agency or instrumentality of them having jurisdiction over the Project Land or any portion thereof.
Southpoint Terrace Declaration - 4/2/04 2 "Improvement” means any structure or improvement which is constructed, made, installed, attached, placed or
tion over the Project Land or any portion thereof.
Southpoint Terrace Declaration - 4/2/04 2 "Improvement” means any structure or improvement which is constructed, made, installed, attached, placed or developed within or upon any portion of the Project Land, including but not limited to any building, fence, wall, patio area, driveway, walkway, antenna, satellite dish, sign, mailbox, pool, tennis court, deck, or any change, alteration, addition or removal of any such structure or improvement.
"Institutional Mortgagee” means any lending institution holding an interest in a Living Unit or Lot pursuant to a first mortgage covering a Living Unit or Lot. Institutional Mortgagees shall include, but not be limited to (i) the successors and assigns of such lending institutions, (ii) any "secondary mortgage market institution" who typically purchase, insure or guaranty mortgages (such as the Federal National Mortgage Association, the Veterans Administration ("VA"), the Federal Housing Administration (“FHA”), the Department of Housing and Urban Development (“HUD"), and similar entities), (iii) Declarant, if Declarant holds a mortgage on any portion of the Project Land.
"Interest" means the rate of twelve percent (12%) per annum, provided that Interest shall not be greater than the maximum interest rate allowed by law on the specific debt or payment obligation on which such Interest accrues.
"Legal Fees” mean reasonable fees for attorney and paralegal services and court costs incurred in connection with any pending or active litigation, claims or other forms of legal action, including the collection of past due Assessments.
"Living Unit" means each individual single-family residential dwelling unit in the Project, and includes the Lot upon which a Living Unit is constructed.
luding the collection of past due Assessments.
"Living Unit" means each individual single-family residential dwelling unit in the Project, and includes the Lot upon which a Living Unit is constructed.
"Lot" means a portion of the Project Land shown on a Final Plat as a delineated parcel of land upon which a single-family Living Unit is permitted to be erected, and includes any Living Unit which may be constructed thereon.
"Member" means a member of the Association.
"Operating Expenses" mean the expenses for which Residential Owners are liable to the Association as described in Article 6 and the Association Documents.
"Owner" means the owner of fee simple title to a Lot or a Living Unit, including Declarant.
"Person” means a natural individual or any other entity with the legal right to hold title to real property.
"Planned Community Act” means the North Carolina Planned Community Act (Chapter 47F of the North Carolina General Statutes), as may be amended or supplemented from time to time.
"Pond" means a portion of the Project Drainage System shown on the Site Plan or a Final Plat as a delineated parcel of real property that contains all or any portion of a stormwater constructed wetland, lake, pond, lagoon, retention or detention area, or similar body of water.
"Project" means the residential development to be constructed upon the Project Land.
"Project Drainage System" means the system of storm water drainage for the Project, consisting of Ponds, detention areas, surface swales or ditches, underground piping, catch basins, and other related facilities to achieve proper drainage for the Project.
"Project Land" means the real property described on Exhibit A, and any additions thereto of Additional Land made subject to this Declaration as provided in Article 12.
proper drainage for the Project.
"Project Land" means the real property described on Exhibit A, and any additions thereto of Additional Land made subject to this Declaration as provided in Article 12.
Southpoint Terrace Declaration - 4/2/04 3 "Public Records" means the Register of Deeds Office of Durham County, North Carolina, or such other authorized County office in which deeds and other land records and documents are filed for public notice.
"Residential Owner" means the owner of fee simple title to a Living Unit or Lot (but does not include Declarant or any builder exercising Declarant rights with regard to Assessments payable to the Association during the Deficit Funding Period).
"Site Plan" means the site development plan for the Project approved by the appropriate Governmental Authorities, as such may be supplemented or amended from time to time, the current version of which is attached to this Declaration as Exhibit B.
"Stormwater Maintenance Plan" means the maintenance plan and manual pursuant to which the Ponds and other applicable portions of the Project Drainage System are required to be maintained by the Association that is currently under preparation and is to be attached to this Declaration as Exhibit C pursuant to an Amendment.
"Total Planned Units" means the total number of Living Units planned for the Project by the Site Plan as may be modified from time to time with the approval of the City, which is currently 105 Living Units.
"Turnover Date" means the earlier of (i) the date when ninety percent (90%) of the Total Planned Units have been conveyed to a Residential Owner, or (ii) the date on which Declarant records in the Public Records a document relinquishing its control of the Association to the Members.
ARTICLE 3 PLAN OF DEVELOPMENT OF THE PROJECT
esidential Owner, or (ii) the date on which Declarant records in the Public Records a document relinquishing its control of the Association to the Members.
ARTICLE 3 PLAN OF DEVELOPMENT OF THE PROJECT Declarant plans to develop the Project Land in multiple stages. Currently, Declarant plans to develop a total of 105 Living Units on the Project Land, which number is subject to change as development of the Project Land progresses.
Declarant may add and develop Additional Land as part of the Project in accordance with Article 12.
Declarant's general plan of development contemplates the construction of Living Units thereon and, further, that various Improvements will be constructed on other portions of the Project Land which will enhance the Project and benefit the Residential Owners, however there is no obligation imposed by this Declaration on the Declarant to build a Living Unit on any particular Lot or portion of the Project Land. Declarant's general plan of development further contemplates that such Living Units shall be whatever types of structures Declarant may choose (subject to the applicable zoning and density requirements of the applicable Governmental Authorities). Declarant's general plan of the Project is reflected by the Site Plan and may also include whatever facilities and amenities Declarant considers in its sole judgment to be appropriate to the Project. Declarant reserves the right to increase or decrease the number of Lots or Living Units reflected and/or permitted by the Site Plan as approved by the City in accordance with applicable law, and such change shall not require an amendment to this Declaration.
ARTICLE 4 ASSOCIATION PROPERTY A. Association Property. The Association Property is for the use, enjoyment, and benefit of the Association and
hange shall not require an amendment to this Declaration.
ARTICLE 4 ASSOCIATION PROPERTY A. Association Property. The Association Property is for the use, enjoyment, and benefit of the Association and the Residential Owners, the residents of the Project, and their respective guests and invitees, tenants, and subject to the ordinances of the City and other applicable Governmental Authorities, and any other Person authorized to use the Association Property or any portion thereof by Declarant or the Association.
Southpoint Terrace Declaration - 4/2/04 4 B. Entrance Facilities. The Association shall maintain, at the Association's sole cost, the Entrance Facilities, including repair and replacement if any such Improvements are damaged or destroyed. The Association shall maintain such Improvements in a state of good repair and in conformity with the standards maintained in developments of a similar nature and quality as the Project and as provided in the Lodge Agreement referred to below. The Entrance Facilities are or will be located on real property currently owned by Lodge at Southpoint, L.P. (“Lodge”) pursuant to an easement benefiting the Project Land that allows the installation, operation, maintenance, and repair of the Entrance Facilities by Declarant and the Association. A copy of the instrument in which Lodge granted such easement is attached as Exhibit D (the "Lodge Agreement”). Upon Declarant's completion of the Improvements for the Entrance Facilities, the Association shall assume the rights and obligations of Declarant in the Lodge Agreement with respect to the continuing maintenance, repair, operation, and insurance of the Entrance Facilities. The Association shall execute whatever additional
ligations of Declarant in the Lodge Agreement with respect to the continuing maintenance, repair, operation, and insurance of the Entrance Facilities. The Association shall execute whatever additional documentation Declarant or Lodge may require as verification of the Association's assumption of such obligations.
THE LODGE AGREEMENT GIVES LODGE LIEN RIGHTS IN AND TO THE ASSOCIATION PROPERTY IF THE ASSOCIATION FAILS TO PERFORM ITS OBLIGATIONS UNDER THE LODGE AGREEMENT AFTER THE ASSOCIATION'S RECEIPT OF WRITTEN NOTICE FROM LODGE AND THE EXPIRATION OF A CURE PERIOD, AS MORE PARTICULARLY SET FORTH IN THE LODGE AGREEMENT.
C. Residential Streets. Any portion of the Project Land shown on a Final Plat as a right of way for vehicular access, and all Improvements thereon (the “Residential Streets”) shall be dedicated to the City or other applicable governmental agency as a public right-of-way for ingress and egress to and from all portions of the Project Land. The Association shall have no responsibility for the maintenance thereof, but shall have the right, to provide supplemental maintenance together with the City or other governmental agency, as the Board may determine in its sole discretion. The cost of such maintenance performed by the Association shall be an Operating Expense of the Association and payable out of the funds collected as Base Assessments from the Residential Owners.
D.
Project Drainage System. The Association shall own and maintain the Ponds and any other portions of the Project Drainage System not maintained by a Governmental Authority or a Residential Owner, in good working order and in accordance with the Stormwater Maintenance Plan, the City Stormwater Agreements, and all applicable governmental
tained by a Governmental Authority or a Residential Owner, in good working order and in accordance with the Stormwater Maintenance Plan, the City Stormwater Agreements, and all applicable governmental requirements and regulations, so that the Project Drainage System continues to function properly in controlling storm water runoff and drainage from the Project.
Upon the conveyance of the Ponds to the Association, the Association as the fee simple owner of the Ponds, shall be obligated to comply with all applicable requirements of the City and other applicable Governmental Authorities having jurisdiction over the Ponds, including the obligation to enter into a City Stormwater Agreement or multiple City Stormwater Agreements with the City, or other agreement in use by the City at the time of conveyance of the Ponds to the Association. Such City Stormwater Agreement(s) or other agreement between the Association and the City shall replace the previous City Stormwater Agreements between Declarant and the City. If required by the City in order to release the letter of credit posted by Declarant pursuant to the agreements attached as Exhibit D, the Association, at its sole expense, shall provide acceptable security in the form and amounts required by the City for the benefit of the City, in satisfaction of the applicable terms of the new City Stormwater Agreement(s) or other similar agreement required by the City and entered into by the Association.
Pursuant to the City Stormwater Agreements, the City has the right to inspect the Ponds and, to notify the responsible party (Declarant or the Association, whoever owns the Ponds at the time) of any maintenance or repair that the
er Agreements, the City has the right to inspect the Ponds and, to notify the responsible party (Declarant or the Association, whoever owns the Ponds at the time) of any maintenance or repair that the City reasonably determines to be necessary or required for the Ponds. If the responsible party fails to perform the required maintenance or work within 30 days following the responsible party's receipt of the City's notice of the required maintenance or work, the City has the right to perform the work and recover the City's costs for doing the work from the responsible party. If the Association is the responsible party, and if the Board determines that there is a lack or shortage of Southpoint Terrace Declaration - 4/2/04 5 available funds to cover the cost to repay the City, the Board shall impose a Special Assessment pursuant to Section D.2 of Article 6. The estimated costs for routine maintenance of the Ponds shall be an Operating Expense and included in the Budget for each fiscal year of the Association. The Association shall also maintain a separate reserve account for the funds necessary for the reconstruction, replacement, or major repair of the Ponds as provided in Section _ of Article 6.
E.
Common Parking Spaces. Any parking spaces located on Association Property, within a Residential Street or otherwise not located upon a Lot ("Common Parking Space") shall be maintained by the Association. The Association shall use and maintain the Common Parking Spaces in substantially the same fashion as constructed by Declarant and in accordance with the requirements of the City. The Common Parking Spaces shall be for the use and benefit of all of the Residential Owners and no Residential Owner shall claim any exclusive right to use any Common Parking Space,
ments of the City. The Common Parking Spaces shall be for the use and benefit of all of the Residential Owners and no Residential Owner shall claim any exclusive right to use any Common Parking Space, regardless of the location of any such Common Parking Space.
F. Mail Service Areas. Any portion of the Project Land shown on the Site Plan or a Final Plat as a site containing a mail kiosk and the associated landscaping, sidewalk, and parking spaces shall be owned and maintained by the Association.
G. Right to Add Additional Improvements. Such portions of the Association Property upon which Declarant has constructed, or hereinafter constructs, Improvements shall be kept and maintained for use in a manner consistent with the nature of such Improvements located, or to be located thereon. Until the Turnover Date, Declarant reserves the right, but shall not be obligated, to construct additional facilities upon the Association Property. Until the Turnover Date, the decision as to whether to construct additional facilities and the construction thereof shall be in the sole discretion of Declarant.
H. Private Use. Except as may otherwise be expressly provided for herein, for the term of this Declaration, the Association Property is not for the use and enjoyment of the public, but is expressly reserved for the private use and enjoyment of Declarant, the Association, and the Residential Owners, their family members, guests, invitees and lessees, and any other Person authorized to use the Association Property or any portion thereof by Declarant or the Association but only in accordance with this Declaration and the laws of the City and the applicable Governmental Authorities.
I.
Declarant's Rights to Use Association Property. Declarant, hereby expressly reserves the right to use the
with this Declaration and the laws of the City and the applicable Governmental Authorities.
I.
Declarant's Rights to Use Association Property. Declarant, hereby expressly reserves the right to use the Association Property, the Lots and the unsold Living Units in connection with the sale and marketing by Declarant of Living Units or Lots in the Project, including, but not limited to, the holding of sales and marketing meetings, sales promotions and related activities.
J.
Conveyance of Association Property. The Association Property shall be conveyed to the Association for ownership. All real property designated as Association Property on a Final Plat or otherwise identified herein or by Declarant as Association Property, will be conveyed to the Association by deed or by easement. All personal property or interests in personal property shall be conveyed to the Association by bill of sale or by delivery of possession to the Association. Declarant shall have the right to convey Association Property to the Association at any time following Declarant's completion of any Improvements to be constructed or installed upon such Association Property. Upon completion of any Improvements thereon or thereto by the Declarant, the Association will immediately become responsible for all maintenance, repair and replacements therefore, the operation thereof and such additional construction of Improvements as may be authorized by the Board. It is the intent of this provision to provide that the Association will be responsible for all maintenance of Association Property when Improvements thereto have been completed, notwithstanding that Declarant has not conveyed such properties to the Association but continues to hold title thereto. Any such
of Association Property when Improvements thereto have been completed, notwithstanding that Declarant has not conveyed such properties to the Association but continues to hold title thereto. Any such conveyance by the Declarant will be conveyed subject to all restrictive covenants filed in the Public Records at the time of conveyance, and the following: Southpoint Terrace Declaration - 4/2/04 6 1. The right of access of the Declarant, its successors and assigns, over and across such property; and 2. The right of the Declarant, the Committee, and the Association, as applicable, to approve all structures, construction, repairs, changes in elevation and topography and the location of any object (including vegetation) within the Association Property prior to the commencement of such activities or location of any object therein; 3. All utilities and drainage easements, including but not limited to, the easement referred to in Section B.10 of Article 8; and 4. All reserved rights set forth in this Declaration.
The Declarant will not be required to so convey the Association Property where such conveyance would be prohibited under agreements to which the Declarant is a party on the date of establishment of such Association Property, but, in such case, Declarant will be allowed to postpone such conveyance, without a penalty, until such time as said prohibition terminates, is released or is nullified.
In consideration of the benefits accruing to the Association and to the Members under this Declaration and in consideration of the covenants and agreements of the Declarant hereunder, the Association hereby agrees to accept title to any property, or to any interest in property, now or hereafter conveyed to it pursuant to the terms and conditions of
ments of the Declarant hereunder, the Association hereby agrees to accept title to any property, or to any interest in property, now or hereafter conveyed to it pursuant to the terms and conditions of this Declaration. Upon the due recording of a deed, easement, lease or other instrument or memorandum of conveyance to the Association filed in the Public Records, title or such other interest in property conveyed will vest in and to the Association without the necessity of any further act, deed or approval of any person, including the grantor, lessor and/or Association.
The Association shall not mortgage or convey the Association Property without compliance with and satisfaction of the applicable provisions of the Planned Community Act (if any). All rights of the mortgagee shall be subordinate to the rights of the Association and its Members. Easements granted or permitted in the Association Property and conveyances for the purpose of making minor or necessary boundary adjustments between the Living Units and the Association Property, shall not be considered to be a conveyance of such Association Property and shall not require the approval or consent of the Residential Owners or any other party or Person.
K.
Rules and Regulations. The Association shall be entitled to adopt and enforce reasonable rules and regulations related to the use and operation of the Association Property. All users of the Association Property shall be subject to comply with such rules and regulations, provided any such rules and regulations are not applied or enforced in a discriminatory manner. Enforcement of such rules and regulations can include the right to prohibit use, deny access to
lations, provided any such rules and regulations are not applied or enforced in a discriminatory manner. Enforcement of such rules and regulations can include the right to prohibit use, deny access to facilities, and suspend voting rights of Members for material violations. The rules and regulations so promulgated shall, in all respects, be consistent with the provisions of the Association Documents.
A.
ARTICLE 5 ASSOCIATION MEMBERSHIP AND GOVERNANCE Membership. Every Owner, including Declarant, of a Lot or a Living Unit will be a Member of the Association. Ownership of a Lot or a Living Unit will be the sole qualification for such membership. If fee title to a Lot or Living Unit is transferred or otherwise conveyed, the membership in the Association which is appurtenant thereto will automatically pass to such transferee, notwithstanding any failure of the transferor to endorse to his transferee any certificates or other evidences of such membership. The foregoing is not intended to include any Persons who hold an interest merely as security for the performance of an obligation, and the giving of a security interest will not terminate or otherwise affect an Owner's membership in the Association.
Southpoint Terrace Declaration - 4/2/04 7 B.
Voting Rights. The Association will have two (2) types of voting memberships which are as follows: 1. "Class A Members” will be Owners (including Declarant) of Lots and Living Units. A Class A Member will be entitled to one (1) vote for each Lot or Living Unit owned.
2. "Class B Members” shall be Declarant or its designated assign. The Class B Member will be entitled to two times the total number of votes of the Class A Members, plus one (1) vote until the Turnover Date. Thereafter,
” shall be Declarant or its designated assign. The Class B Member will be entitled to two times the total number of votes of the Class A Members, plus one (1) vote until the Turnover Date. Thereafter, Declarant will exercise votes only as to its Class A Memberships.
Only those Members in good standing and eligible to vote pursuant to the Bylaws shall be entitled to cast any vote required or permitted hereunder, and only the votes of Members in good standing and eligible to vote shall be considered in any calculation of votes or any required percentage thereof. On the Turnover Date, Class A Members, including Declarant, shall assume control of the Association and elect the Board.
C.
Voting By Multiple Owners. When any Lot or Living Unit of a Class A Member is owned in the name of two or more persons, other than husband and wife (either of whose vote will bind both), by an entity, or in any other manner of joint or common ownership, the vote for such Lot or Living Units will be exercised as such co-owners determine among themselves and advise the Secretary of the Association in writing prior to any meeting; or the vote will be exercised by such co-Owner, or his duly appointed proxy, as will be designated in a writing by all co-Owners filed in the Public Records, a copy of which will be delivered to the Secretary of the Association and will remain effective for all meetings until revoked by the co-Owners in a similar writing or until such designation terminates pursuant to the terms of such writing.
D.
Association Governance by Board. The Board shall consist of three (3) or five (5) members who will govern the Association. Initially, prior to the Turnover Date, the Board will consist of three (3) members appointed by the
by Board. The Board shall consist of three (3) or five (5) members who will govern the Association. Initially, prior to the Turnover Date, the Board will consist of three (3) members appointed by the Declarant, and following the Turnover Date, the Board will consist of five (5) members elected as provided in the Bylaws.
E.
Meetings and Membership Voting. Except as otherwise provided in this Declaration, rules and procedures of the Association, including, but not limited to, conducting elections, meetings (both regular and special), and for casting of votes by Members, and the number thereof required for quorums and approval or ratification, shall be as set forth in the Bylaws.
A.
ARTICLE 6 ASSESSMENTS AND OPERATING EXPENSES; Affirmative Covenant to Pay Operating Expenses. In order to: (i) fulfill the terms, provisions, covenants and conditions contained in the Association Documents; and (ii) maintain, operate and preserve the Association Property for the welfare and benefit of the Members and their family members, guests, invitees and lessees, there is hereby imposed upon each Lot and Living Unit and Residential Owner (with the exception of Declarant during the Deficit Funding Period) the affirmative covenant and obligation to pay to the Association (in the manner herein set forth) all Assessments, including, but not limited to, the Base Assessments, Special Assessments, Individual Expense Assessments, and Working Capital Contributions. Each Residential Owner (except, if applicable, Declarant) by acceptance of a deed or other instrument of conveyance of a Living Unit or Lot from Declarant, whether or not it shall be so expressed in such deed or instrument, shall be obligated and agrees to pay to the Association all Assessments for Operating Expenses in accordance
or Lot from Declarant, whether or not it shall be so expressed in such deed or instrument, shall be obligated and agrees to pay to the Association all Assessments for Operating Expenses in accordance with the provisions of the Association Documents.
B.
Establishment of Liens. Any and all Assessments made by the Association in accordance with the Association Documents with Interest thereon and costs of collection (including, but not limited to, Legal Fees), are declared to be a charge and continuing lien upon each Lot and Living Unit against which each such Assessment is made. Each Southpoint Terrace Declaration - 4/2/04 8 Assessment against a Lot or Living Unit (together with Interest thereon and costs of collection) shall be the personal obligation of the Residential Owner thereof. Said lien shall be effective only from and after the date a written, acknowledged statement of the Board setting forth the amount due to the Association as of the date the statement is signed, is recorded in the Public Records. Upon full payment of all sums secured by that lien, the party making payment shall be entitled to a satisfaction of the statement of lien in recordable form. Where an Institutional Mortgagee obtains title to a Living Unit or Lot as a result of foreclosure of its first mortgage or deed in lieu of foreclosure, such Institutional Mortgagee shall not be liable for the share of Assessments pertaining to such Living Unit or Lot that became due prior to the acquisition of title by such Mortgagee as a result of the foreclosure or deed in lieu thereof, unless the Assessment is secured by a claim of lien for Assessments recorded prior to the recording of the applicable mortgage.
y such Mortgagee as a result of the foreclosure or deed in lieu thereof, unless the Assessment is secured by a claim of lien for Assessments recorded prior to the recording of the applicable mortgage.
C. Amount of Base Assessment. The total anticipated Operating Expenses for each calendar year shall be set forth in the budget ("Budget”) prepared by the Board as required under the Association Documents. The total anticipated Operating Expenses (other than those Operating Expenses which are properly the subject of a Special Assessment) shall be apportioned equally among the Lots and Living Units by dividing the total anticipated Operating Expenses as reflected by the Budget, by the total number of Lots and Living Units, with the quotient thus arrived at being the "Base Assessment”.
Provided, however, the first Budget and all subsequent Budgets prepared during the Deficit Funding Period referred to below, shall be based upon a projection of the total Operating Expenses at full build-out of the Project and the Base Assessment shall be determined by dividing the amount of the total anticipated Operating Expenses at full build-out by a number equal to 75% of the Total Planned Units. On any Budget, the Board shall have the right to make adjustments to the amount of the total Operating Expenses anticipated at full build-out of the Project or any component thereof, from the amounts reflected on the previous Budget. Such adjustments shall be made based on the Board's reasonable determination of actual or potential increases or decreases in the costs associated with the services and materials covered in the Budget.
Accordingly, the amount of the Base Assessment may vary from year to year during the Deficit Funding Period, as long as
s in the costs associated with the services and materials covered in the Budget.
Accordingly, the amount of the Base Assessment may vary from year to year during the Deficit Funding Period, as long as the Base Assessment is calculated according to the formula described in the previous sentence.
Within 30 days after adoption of a Budget, the Board shall provide to all Residential Owners, a summary of the Budget and a notice of the meeting to consider ratification of the Budget, such meeting to be held not less than 10 nor more than 60 days after mailing of the summary and notice. There shall be no requirement that a quorum be present at the meeting. The Budget is ratified unless at that meeting, ninety percent (90%) or more of the Residential Owners present in person or by proxy at the meeting, reject the Budget. If the Budget is rejected, the Budget last ratified by the Residential Owners or in effect for the preceding fiscal year of the Association, shall be continued until such time as the Residential Owners ratify a subsequent Budget adopted by the Board.
D.
Special Assessment.
1. General. “Special Assessments" include, in addition to other Assessments designated as Special Assessments in the Association Documents, those Assessments which are levied for capital improvements which include the costs of constructing or acquiring Improvements on or for the Association Property or the costs of reconstructing or replacing such Improvements. Special Assessments shall be in addition to, and are not part of, any "Base Assessment”.
Any such Special Assessments assessed against Lots and Living Units shall be paid by the Residential Owners in addition to any other Assessments. Special Assessments shall be assessed in the same manner as the Base Assessment. Special
sed against Lots and Living Units shall be paid by the Residential Owners in addition to any other Assessments. Special Assessments shall be assessed in the same manner as the Base Assessment. Special Assessments shall be paid in such installments or in a lump sum as the Board shall, from time to time, determine. In any fiscal year of the Association after the Turnover Date, the levying of any Special Assessment shall require the affirmative assent of at least two-thirds (2/3) of the votes held by each class of Members represented in person or by proxy at a meeting called and held in accordance with the Bylaws. Except as provided in Section D.2 below, in any fiscal year of the Association prior to the Turnover Date, the levying of any Special Assessment which exceeds five percent (5%) of the budgeted Operating Expenses of the Association for that fiscal year, shall require the affirmative assent of at least two-thirds Southpoint Terrace Declaration -- 4/2/04 9 (2/3) of all votes held by each class of Members represented in person or by proxy at a meeting called and held in accordance with the Bylaws. Any Special Assessment levied prior to the Turnover Date n an amount equal to 5% or less of the budgeted Operating Expenses of the Association for a fiscal year may be levied by the Board without the approval or consent of the Residential Owners or any other party.
2. City Stormwater Agreement Special Assessment. Notwithstanding the requirements of Section D.1 of this Article 6, the Association, acting by and through the Board, shall levy a Special Assessment for the purpose of funding any monetary obligations that the Association may have to repay the City in accordance with the applicable
, acting by and through the Board, shall levy a Special Assessment for the purpose of funding any monetary obligations that the Association may have to repay the City in accordance with the applicable provisions of the City Stormwater Agreement(s) or other agreement(s) between the Association and the City in accordance with Section D of Article 4. The Board may levy any such Special Assessment without the approval or consent of any Residential Owner, Member, or any other Person or party. The right of the Association to enforce its lien for payment of such Special Assessment may be exercised by either the Association or the City. The Association hereby assigns to the City, its rights to claim and enforce the lien for any Special Assessment levied pursuant to this Section D. 2 of Article 6, who may act on behalf of the Association and shall have all of the rights of the Association, including those rights in this Article 6, with respect to the collection or enforcement of any Special Assessment levied pursuant to this Section D.2 of Article 6.
E.
Individual Expense Assessments. Individual Expense Assessments include any Assessment levied against a Residential Owner as a result of such Residential Owner's use, maintenance, or treatment of the Association Property or such Residential Owner's failure to comply with the Association Documents, including, but not limited to, non-compliance of Living Units and any other Improvements or personal property contained therein with the standards set forth in the Association Documents. The amount of the Individual Expense Assessment(s) shall be equal to the amount of any additional costs and expenses incurred by Declarant or the Association as a result of such Residential Owner's failure or
nt of the Individual Expense Assessment(s) shall be equal to the amount of any additional costs and expenses incurred by Declarant or the Association as a result of such Residential Owner's failure or refusal to comply with the Association Documents. The Individual Expense Assessment and any late charges relating thereto shall be assessed and collected and enforced in the same manner as any other Assessments hereunder as provided herein. Individual Expense Assessments shall be in addition to and not part of any other Assessment. For the purposes of this Section, the term "Residential Owner" shall also mean any such Residential Owner's family members, guests, or lessees, and such lessee's family members, or guests.
F.
Deficit Funding Period. Declarant covenants and agrees with the Association and the Residential Owners that for the period ("Deficit Funding Period") commencing with the date of recordation of this Declaration and ending upon the sooner to occur of the following: (i) the date upon which seventy five (75) Living Units have become certified for occupancy by the applicable Governmental Authorities, or (ii) the date that is three (3) years after the date this Declaration is originally recorded in the Public Records, that (a) the Base Assessment will be determined by spreading the total anticipated Operating Expenses projected at full build-out of the Project as set forth in the Budget, by a number equal to 75% of the Total Planned Units (plus any increase approved according to Section C above); and (b) Declarant will pay the "Deficit," being the difference, if any, between the Operating Expenses incurred by the Association during the Deficit Funding Period, and the Assessments paid by other Residential Owners. During the Deficit Funding Period, Declarant
if any, between the Operating Expenses incurred by the Association during the Deficit Funding Period, and the Assessments paid by other Residential Owners. During the Deficit Funding Period, Declarant shall not be obligated to pay any Assessments with respect to any Lots or Living Units owned by Declarant. Declarant hereby reserves the right to extend the Deficit Funding Period to a date ending not later than the Turnover Date at Declarant's sole election by providing written notice to the Association of such election at least thirty (30) days prior to the expiration of the current Deficit Funding Period. After the Deficit Funding Period terminates, Declarant shall pay Base Assessments for any Lots or Living Units owned by Declarant at a rate equal to ten percent (10%) of the full amount of the applicable Base Assessments charged for Lots or Living Units that are not owned by Declarant.
Declarant's obligation to fund the Deficit during the Deficit Funding Period as set forth above is hereby declared to be a charge and continuing lien upon each Lot and Living Unit owned by Declarant. Said lien shall be effective only from and after the time of the recordation in the Public Records of a written, acknowledged statement by the Southpoint Terrace Declaration - 4/2/04 10 Association setting forth the amount due to the Association as of the date the statement is signed. Upon full payment of all sums secured by that lien, Declarant shall be entitled to a satisfaction of the statement of lien in recordable form.
G.
Working Capital Contribution. The first Residential Owner who purchases a Living Unit from Declarant or a builder who constructed the Living Unit, shall pay to the Association at the time title is conveyed to such Residential
ion. The first Residential Owner who purchases a Living Unit from Declarant or a builder who constructed the Living Unit, shall pay to the Association at the time title is conveyed to such Residential Owner a "Working Capital Contribution". The Working Capital Contribution shall be an amount equal to a two-month share of the Base Assessment. The purpose of the Working Capital Contribution is to insure that the Association will have cash available for initial start up expenses including, but not limited to Operating Expenses, to meet unforeseen expenditures or to acquire additional equipment and services deemed necessary or desirable by the Board. Working Capital Contributions are not advance payments of Base Assessments and shall have no effect on future Base Assessments.
Working Capital Contributions are payable only by the first Residential Owner and any Residential Owner who is not the first purchaser of a Living Unit, but buys the Living Unit from another Residential Owner shall have no obligation to pay a Working Capital Contribution.
H.
Collection of Assessments. If any Residential Owner shall fail to pay any Assessment (or installment thereof) charged to such Residential Owner within fifteen (15) days after the same becomes due, then the Association shall have any and all of the following remedies to the extent permitted by law, which remedies are cumulative and which remedies are not in lieu of, but are in addition to, all other remedies available to the Association: 1. To accelerate the entire amount of any Assessments levied on the applicable Living Unit or Lot for the remainder of the calendar year notwithstanding any provisions for the payment thereof in installments.
celerate the entire amount of any Assessments levied on the applicable Living Unit or Lot for the remainder of the calendar year notwithstanding any provisions for the payment thereof in installments.
2. To advance on behalf of the Residential Owner(s) in default funds to accomplish the needs of the Association up to and including the full amount for which such Residential Owner(s) is liable to the Association. The amount of any funds so advanced, together with Interest and all costs of collection thereof (including, but not limited to, Legal Fees), may be collected by the Association and such advance by the Association shall not waive the Residential Owner's default.
3. To file an action in equity to foreclose its lien at any time after the effective date thereof. The lien may be foreclosed by an action in the name of the Association in like manner as a foreclosure of a mortgage on real property under power of sale under Article 2A of Chapter 45 of the North Carolina General Statutes, or as otherwise provided in the Planned Community Act.
4. To file an action at law to collect said Assessment plus Interest and Legal Fees, without waiving any lien rights or rights of foreclosure in the Association.
5. To charge Interest on such Assessment from the date it becomes due, as well as a late charge of TwentyFive Dollars ($25.00) by the Association to defray additional collection costs.
I.
Collection by Declarant. If for any reason the Association shall fail to collect the Assessments, then prior to the Turnover Date, Declarant shall have the right (but not the obligation): (i) to advance such sums as the Association could have advanced as set forth above; and (ii) to collect such Assessments (and if applicable, any such sums advanced by
e right (but not the obligation): (i) to advance such sums as the Association could have advanced as set forth above; and (ii) to collect such Assessments (and if applicable, any such sums advanced by Declarant); using the remedies available to the Association against a Residential Owner as set forth above, all of which remedies are hereby declared to be available to Declarant.
J. Payments by Declarant and Institutional Mortgagees. Declarant and any Institutional Mortgagees shall have the right, but not the obligation, jointly or singly, and at their sole option, to pay any of the Assessments which are in default and which may or have become a charge against any Living Units or Lots. Declarant and any Institutional Mortgagees shall also have the right, but not the obligation, jointly or singly, and, at their sole option, to pay insurance premiums or fidelity bond premiums or other required items of Operating Expenses on behalf of the Association when Southpoint Terrace Declaration - 4/2/04 11 overdue and when lapses in policies or services may occur. Declarant and any Institutional Mortgagees paying overdue Operating Expenses on behalf of the Association will be entitled to immediate reimbursement from the Association plus Interest and any costs of collection. The Association shall execute an instrument in recordable form evidencing the Association's obligation to make such immediate reimbursement and deliver the original of such instrument to each party who is so entitled to reimbursement.
K.
Rental and Receiver. If a Residential Owner remains in possession of his Living Unit or Lot and the claim of lien of the Association against his Living Unit or Lot is foreclosed, the court, in its discretion, may require the
a Residential Owner remains in possession of his Living Unit or Lot and the claim of lien of the Association against his Living Unit or Lot is foreclosed, the court, in its discretion, may require the Residential Owner to pay a reasonable rental for the Lot or Living Unit, and the Association is entitled to the appointment of a receiver to collect the rent.
L. Assignment of Claim and Lien Rights. The Association, acting through its Board, shall have the right to assign its claim and lien rights for the recovery of any unpaid Assessments and any other monies owed to the Association, to any third party.
M.
Certificate of Payment. Within fifteen (15) days after written request by any Residential Owner or any Institutional Mortgagee, the Association shall provide the requesting party a written certificate as to whether or not the Residential Owner of the Living Unit or Lot is in default with respect to the payment of Assessments or with respect to compliance with the terms and provisions of this Declaration. Any person or entity who relies on such certificate in purchasing or in making a mortgage loan encumbering any Living Unit or Lot shall be protected thereby.
N. Application of Payments. Any payments made to the Association by any Residential Owner shall first be applied towards any sums advanced and paid by the Association for taxes and payment on account of superior mortgages, liens or encumbrances which may have been advanced by the Association in order to preserve and protect its lien, next toward reasonable attorneys' fees incurred by the Association incidental to the collection of Assessments and other moneys owed to the Association by the Residential Owner and/or for the enforcement of its lien; next towards Interest on any
ed by the Association incidental to the collection of Assessments and other moneys owed to the Association by the Residential Owner and/or for the enforcement of its lien; next towards Interest on any Assessments or other moneys due to the Association, as provided herein, and next towards any unpaid Assessments owed to the Association, in the inverse order that such Assessments were due.
0.
Assessment Payments. The Base Assessments shall be payable in advance in monthly, quarterly, annual or semi-annual installments with the due dates being established by the Board.
P. Liability of Residential Owners for Individual Assessments. By the acceptance of a deed or other instrument of conveyance of a Living Unit or Lot in the Project, each Residential Owner thereof acknowledges that the Residential Owners are jointly and severally liable for their own Base Assessment and their applicable portion of any Special Assessments as well as for all Individual Expense Assessments and Neighborhood Assessments for which they are liable (with the exception of Declarant so long as Declarant pays the Deficit). Such Residential Owners further recognize and covenant that they are jointly and severally liable with all Residential Owners (except for Declarant during the Deficit Funding Period) for the payment of Operating Expenses. Each Residential Owner, recognizes and agrees that if other Residential Owners fail or refuse to pay their Assessments or any portion thereof, then the remaining Residential Owners may be responsible for increased Base Assessments or a Special Assessment or other Assessments levied as a result of such nonpayment. Any such increased Base Assessment or Special Assessment or other Assessment can and may be enforced
ase Assessments or a Special Assessment or other Assessments levied as a result of such nonpayment. Any such increased Base Assessment or Special Assessment or other Assessment can and may be enforced by the Association and Declarant in the same manner as all other Assessments in accordance with the Association Documents.
Q. Operating Expenses. The Assessments for Operating Expenses are payable by each Residential Owner to the Association notwithstanding the fact that Declarant may not have yet conveyed title to the Association Property to the Association. Operating Expenses shall include the cost of all items or expenses benefiting the Association, the Association Southpoint Terrace Declaration - 4/2/04 12 Project Land, the Project, the Lots and Living Units, and the Residential Owners, as determined to be an appropriate item of Operating Expense by the Board. Operating Expenses include, but are not limited to, the following expenses, costs, fees and charges: 1. Taxes. Any and all taxes levied or assessed at any and all times by any and all taxing authorities against the Association Property and against any and all personal property and Improvements, which are now or which hereafter may be placed thereon, including any interest, penalties and other charges which may accrue thereon.
2. Utility Charges. All charges levied for utilities providing services for the Association Property whether supplied by a private or public firm, including (but not limited to) all charges for water, gas, electricity, telephone, sewer and any other type of utility or any other type of service charge.
3. Insurance. The premiums on any policy or policies of insurance required to be maintained by the
gas, electricity, telephone, sewer and any other type of utility or any other type of service charge.
3. Insurance. The premiums on any policy or policies of insurance required to be maintained by the Association under this Declaration and the premiums on any policy or policies the Association determines to maintain even if not required to be maintained by the specific terms of this Declaration.
4. Destruction of Buildings or Improvements on the Association Property. Any sums necessary to repair or replace, construct or reconstruct damages caused by the destruction of any building upon the Association Property by fire, windstorm, flood or other casualty regardless of whether or not the same is covered in whole or in part by insurance shall be Operating Expenses. In the event insurance money shall be payable, such insurance money shall be paid to the Association who shall open an account with a banking institution doing business in the County, for the purpose of providing a fund for the repair and reconstruction of the damage and the procedures for disbursement of any such insurance proceeds or funds shall be in accordance with the applicable and/or additional provisions of the Planned Community Act (if any). The Association shall pay into such account, either in addition to the insurance proceeds or in the event there are no insurance proceeds, such sums as may be necessary so that the funds on deposit will equal the costs of repair and reconstruction of the damage or destruction. The sums necessary to pay for the damage or destruction as herein contemplated shall be considered Operating Expenses but shall be raised by the Association under the provisions for Special Assessments and subject to the
o pay for the damage or destruction as herein contemplated shall be considered Operating Expenses but shall be raised by the Association under the provisions for Special Assessments and subject to the limitations therein set forth with respect to Special Assessments. The Association agrees that it will commence the Special Assessments process to provide the funds for the cost of reconstruction or construction within ninety (90) days from the date the destruction takes place and shall go forward with all deliberate speed so that the construction or reconstruction, repair or replacement, shall be completed within a reasonable period of time from the date of damage.
5. Maintenance, Repair and Replacements. Operating Expenses shall include all expenses necessary to keep and maintain, repair and replace any and all buildings, other Improvements, the Ponds and other portions of the Project Drainage System, personal property and furniture, fixtures and equipment upon the Association Property, including landscaping, lawn and sprinkler service, in a manner consistent with the development of the Project and in accordance with the covenants and restrictions contained herein, and in conformity with all orders, ordinances, rulings and regulations of any and all federal, state, County and City governments having jurisdiction over the Project Land as well as the statutes and laws of the State of North Carolina and the United States. This shall include any expense attributable to the maintenance and repair and replacement of pumps or other equipment, if any, located upon or servicing the Project pursuant to agreements with utility corporations. Except for any annual contributions to Reserves (specifically including but not limited
other equipment, if any, located upon or servicing the Project pursuant to agreements with utility corporations. Except for any annual contributions to Reserves (specifically including but not limited to, the Reserve for the Ponds referred to below), any expenses for replacements which would not be in the nature of normal repair and maintenance shall be the subject of a Special Assessment as provided in Section D.1 of Article 6 and subject to the limitations thereon set forth with respect to Special Assessments. If the Association is permitted by the owner of property in close proximity to the Property or the governmental authority responsible for maintaining same to provide additional maintenance for such property, and the Board elects to do so in order to enhance the overall appearance of the Property, then the expense thereof shall be an Operating Expense.
Southpoint Terrace Declaration - 4/2/04 13 6. Exterior Maintenance of Lots. Operating expenses shall include all expenses necessary to keep and maintain, repair and replace those portions of the Lots for which the Association is responsible as provided in Section A.2 of Article 9.
7. Additional or Offsite Maintenance. The expenses of any additional maintenance that the Board elects to provide in order to enhance the overall appearance of the Project for or on any property or Improvements located within or outside of the Project, if permitted by the owner of such property or the Governmental Authority responsible for maintaining same.
8. Indemnification. The costs of fulfilling the covenant of indemnification in Section G of Article 15.
9. Administrative and Operational Expenses. The costs of administration of the Association including,
demnification. The costs of fulfilling the covenant of indemnification in Section G of Article 15.
9. Administrative and Operational Expenses. The costs of administration of the Association including, but not limited to, any secretaries, bookkeepers and other employees, and the costs of retaining a management company, as necessary to carry out the obligations and covenants of the Association.
10. Compliance with Laws. The cost and expense of the Association's compliance with all applicable laws, statutes, ordinances and regulations of any Governmental Authority, including, without limitation, any regulations regarding zoning requirements, setback requirements, drainage requirements, sanitary conditions, environmental conditions, and fire hazards.
11. Non-Payment of Base Assessments. Funds needed for Operating Expenses due to the failure or refusal of Residential Owners to pay the Assessments levied. Provided, however, that any Assessment for any such sums so needed to make up a deficiency due to the failure of Residential Owners to pay a Special Assessment shall, itself, be deemed to be a Special Assessment.
12. City Stormwater Agreements. The scheduled annual expenses for the normal and routine operation, maintenance and repair of the Ponds shall be an Operating Expense of the Association. Such expenses and the associated Reserve account shall be attributed the highest priority for the allocation of Operation Expense, except for taxes, assessments, insurance and other expenses required by applicable law to have a higher priority. Unless sufficient funds are available through the Base Assessments, any expenses incurred by the Association as a result of the obligation to repay the
red by applicable law to have a higher priority. Unless sufficient funds are available through the Base Assessments, any expenses incurred by the Association as a result of the obligation to repay the City as a result of the City performing any of the Association's obligation as permitted by the City Stormwater Agreement(s) or other applicable agreement between the Association and the City and in effect at the time, shall be the subject of a Special Assessment as provided in Section D.2 of Article 6.
13. Costs of Reserves. The funds necessary to establish an adequate reserve fund ("Reserve") for periodic maintenance, repair, and replacement of the Association Property and the facilities and Improvements thereupon in amounts determined sufficient and appropriate by the Board from time to time. Reserves shall be deposited in a separate account to provide such funds and reserves. The monies collected by the Association on account of Reserves shall be and shall remain the exclusive property of the Association and no Residential Owner shall have any interest, claim or right to such Reserves. The Association shall establish a separate Reserve for the reconstruction, replacement, and major repair of the Ponds, separate from the funds for the routine maintenance, operation and repair of the Ponds.
The Reserve for the Ponds shall contain funds sufficient to pay the probable cost of reconstruction, replacement and major repair for at least a 3-year period (as determined by the City) and the account for this Reserve shall be insured the FDIC or another entity acceptable to the City.
14. Miscellaneous Expenses. The cost of all items or costs or expenses pertaining to or for the benefit of
account for this Reserve shall be insured the FDIC or another entity acceptable to the City.
14. Miscellaneous Expenses. The cost of all items or costs or expenses pertaining to or for the benefit of the Association, the Association Property, the Lots, the Living Units, the Project, or any part thereof, not herein specifically enumerated and which is determined to be an appropriate item of Operating Expense by the Board shall be an Operating Expense.
Southpoint Terrace Declaration - 4/2/04 14 15. Legal Action against Declarant. Legal expenses incurred by the Association to begin legal proceedings against Declarant shall be deemed an Operating Expense, which is properly the subject of a Special Assessment and not the subject of a regular Base Assessment.
ARTICLE 7 INSURANCE AND CONDEMNATION The Association shall purchase and maintain the following insurance coverage subject to the following provisions, and the cost of the premiums therefore shall be a part of the Operating Expenses: A.
Casualty Insurance. Property and casualty insurance naming Declarant as an additional named insured for so long as Declarant owns any portion of the Project Land, in an amount equal to the then full replacement cost, exclusive of land, foundation, excavation and other items normally excluded from such coverage, of all Improvements and personal property which is owned, or to be owned, by the Association and now or hereafter located upon the Association Property, which insurance shall afford protection against such risks, if any, as shall customarily be covered with respect to areas similar to the Association Property in developments similar to the Project in construction, location and use. If insurance
nst such risks, if any, as shall customarily be covered with respect to areas similar to the Association Property in developments similar to the Project in construction, location and use. If insurance proceeds are payable to the Association as a result of casualty and the Association is obligated or elects to repair or reconstruct the Improvements damaged or destroyed by such casualty, such insurance money shall be paid to the Association who shall open an account with a banking institution doing business in the County, for the purpose of providing a fund for the repair and reconstruction of the damage.
B. Public Liability Insurance. A comprehensive policy of public liability insurance naming Declarant as an additional named insured until Declarant's ownership of any portion of the Project Land ceases, insuring against any and all claims or demands made by any person or persons whomsoever for injuries received in connection with, or arising from, the operation, maintenance and use of the Association Property and any Improvements located thereon, and for any other risks insured against by such policies with limits of not less than One Million Dollars ($1,000,000) for damages incurred or claimed by any one person for any one occurrence; not less than One Million Dollars ($1,000,000) for damages incurred or claimed for any one occurrence; and for not less than Fifty Thousand Dollars ($50,000) property damage per occurrence with no separate limits stated for the number of claims.
C.
Fidelity Coverage. Adequate fidelity coverage to protect against dishonest acts of the officers and employees of the Association and the Directors and all other who handle and are responsible for handling funds of the
. Adequate fidelity coverage to protect against dishonest acts of the officers and employees of the Association and the Directors and all other who handle and are responsible for handling funds of the Association shall be maintained in the form of fidelity bonds, which requirements shall be reasonably determined by the Board.
D.
Other Insurance. Such other forms of insurance and in such coverage amounts as the Association shall determine to be required or beneficial for the protection or preservation of the Association Property and any improvements now or hereafter located thereon or in the best interests of the Association.
E.
Cancellation or Modification. All insurance policies purchased by the Association shall provide that they may not be canceled (including for nonpayment of premiums) or substantially modified without at least ten (10) days prior written notice to the Association.
F.
Condemnation. In the event the Association receives any award or payment arising from the taking of any Association Property owned in fee or any part thereof as a result of the exercise of the right of condemnation or eminent domain, the net proceeds thereof shall first be applied to the restoration of such taken areas and Improvements thereon to the extent deemed advisable by the Association and the remaining balance thereof, if any, shall be allocated or applied as determined by the Board.
Southpoint Terrace Declaration - 4/2/04 15 G.
Property Damage and Casualty Insurance on the Living Units. Each Residential Owner shall maintain a property damage and casualty insurance or “hazard” insurance policy, with full replacement coverage, to protect against casualty damage to their Living Unit. Each Residential Owner shall provide a copy of such Owner's current hazard
urance or “hazard” insurance policy, with full replacement coverage, to protect against casualty damage to their Living Unit. Each Residential Owner shall provide a copy of such Owner's current hazard insurance policy, and all replacements and renewals thereof, to the Association. If a Residential Owner fails or refuses to provide the Association with a copy of such insurance policy (or renewal or other reasonable evidence of the availability of current property damage and casualty insurance coverage on the Residential Owner's Living Unit) within thirty (30) days following the Association's written notice to provide such insurance policy or evidence, the Association shall have the right to obtain and purchase such insurance as required by this Section on behalf of such Owner. In such event, the costs incurred by the Association procuring such insurance, shall be assessed against the applicable Residential Owner as an Individual Expense Assessment levied against the Residential Owner's Lot.
H. Planned Community Act. The insurance maintained by the Association and the application, allocation or distribution of the proceeds thereof shall be subject to Section 47F-113 of the Planned Community Act and any other applicable terms and provisions of the Planned Community Act.
A.
ARTICLE 8 EASEMENTS Recognition of Existing Easements. Each Residential Owner, by acceptance of a deed or other instrument of conveyance, recognizes and consents to the easements reserved and/or granted with respect to the Project Land under this Declaration.
B.
Reservation and Establishments of Easements. In addition to the easements set forth and specifically granted and referred to in other provisions of this Declaration, this Declaration hereby creates and establishes the following
nts of Easements. In addition to the easements set forth and specifically granted and referred to in other provisions of this Declaration, this Declaration hereby creates and establishes the following perpetual easements over and across the Project Land as covenants running with the Project Land for the benefit of the Residential Owners, the Association, Declarant, and other Persons as hereinafter specified for the following purposes: 1. Easements for Utilities. There is hereby reserved for the benefit of Declarant, the Association, and their respective successors and assigns, the alienable, transferable, and perpetual right and easement, as well as the power to grant and accept easements to and from any Governmental Authority or private utility company or other Person, upon, over, under, and across all of the Association Property in accordance with this Declaration; as shown on the Site Plan or a Final Plat; and other such easement areas recited in any Supplement for the purpose of installing, replacing, repairing, maintaining, and using master television antenna and/or cable systems, security and similar systems, and all utilities, including, but not limited to, the Project Drainage System, and electrical, gas, telephone, water, and sewer lines. Such easements may be granted or accepted by Declarant, its successors or assigns, or by the Board, provided, however, that for as long as the Declarant owns any of the Project Land primarily for the purpose of development and sale, the Board must obtain the written approval of Declarant prior to granting and accepting any such easements. To the extent practical, in Declarant's sole discretion, all utility lines and facilities serving the Project and located therein will be located underground.
ranting and accepting any such easements. To the extent practical, in Declarant's sole discretion, all utility lines and facilities serving the Project and located therein will be located underground.
By virtue of any such easement and facilities, it will be expressly permissible for the providing utility company or other supplier or Person, with respect to the portions of the Project Land so encumbered, to erect and maintain pipes, lines, manholes, pumps, and other necessary equipment and facilities, to cut and remove any trees, bushes, or shrubbery, to grade, excavate, or fill, or to take any other similar action reasonable necessary to provide economical and safe installation, maintenance, repair, replacement, and use of such utilities and systems.
2. Easement for Encroachment. If (i) any Improvements which are constructed as Association Property or upon Association Property, or (ii) any Improvements which are specifically constructed upon a Lot (subject to the limitation describe below), encroach upon a Lot because of the placement, construction, reconstruction, repair, movement, settling or shifting of such Improvements, and such Improvements have been constructed, reconstructed or repaired in accordance with Southpoint Terrace Declaration - 4/2/04 16 the provisions of this Declaration, an easement for the encroachment and for its maintenance shall exist so long as the encroachment remains, provided, however, that in no event shall such an easement exist for willful encroachments. This easement shall only apply to Improvements upon a Lot which constitute completed building Improvements which do not encroach more than three (3) feet into or upon an adjacent Lot, and shall not include fences, walls, patios, antennas,
ovements upon a Lot which constitute completed building Improvements which do not encroach more than three (3) feet into or upon an adjacent Lot, and shall not include fences, walls, patios, antennas, driveways, walkways, sign, mailboxes, pools, tennis courts, landscaping or other structures or Improvements which are not a completed building Improvement. If any Lot Improvement of the type described in the foregoing sentence encroaches upon the Association Property as a result of construction, reconstruction, repair, shifting, settlement or movement of the subject Lot Improvements, and such Improvements have been constructed, reconstructed or repaired in accordance with the provisions of this Declaration, an easement for the encroachment and for its maintenance shall exist so long as the encroachment remains, provided, however, that in no event shall such an easement exist for willful encroachments.
3. Easement to Enter Upon Lots. An easement or easements for ingress and egress in favor of Declarant, the Committee, the Association, including the Board or the designee of the Board, to enter upon the Lots for the purposes of inspecting any construction, proposed construction of Improvements, or fulfilling its duties and responsibilities of ownership, maintenance and/or repair in accordance with the Association Documents, including the making of such repairs, maintenance or reconstruction as are necessary for the Association Property or any Living Unit.
4. Easement Over Association Property. An easement of use and enjoyment in favor of all Residential Owners, their family members, guests, invitees and lessees in and to the Association Property which shall be appurtenant to and shall pass with title to every Lot and Living Unit, subject to the following: i.
their family members, guests, invitees and lessees in and to the Association Property which shall be appurtenant to and shall pass with title to every Lot and Living Unit, subject to the following: i.
the right of the Association to suspend the voting rights and rights to use the Association Property of any Residential Owner for any period during which Assessments against his Living Unit or Lot remain unpaid; ii. the right of the Association to grant permits, licenses and easements over the Association Property for utilities and other purposes reasonably necessary or useful for the proper maintenance or operation of the Project; iii. all provisions set forth in the Association Documents, including the easements granted and reserved in this Declaration.
iv. Declarant's right to add Additional Land to this Declaration and the rights to grant easements for the benefit of any such Additional Land added to this Declaration.
v. All existing easements of record.
5. Project Drainage Easement. An easement is hereby established over, under, across and upon the Project Land for the benefit of the Project Land (the “Project Drainage Easement"). The Project Drainage Easement shall be for the purpose of installing, constructing, maintaining, using, operating, repairing and replacing so much of the Project Drainage System as may be within the burdened property as may be required to provide storm water control for the benefited property in accordance with the approved development plans for the Project. The Project Drainage Easement shall burden and benefit all portions of the Project Land, and shall be appurtenant to the Project Land. The location of the Project Drainage
pment plans for the Project. The Project Drainage Easement shall burden and benefit all portions of the Project Land, and shall be appurtenant to the Project Land. The location of the Project Drainage Easement on such burdened property shall be as reflected on the Final Plat of the applicable property. The Project Drainage Easement also includes reasonable rights to enter upon the burdened property in order to access the locations, facilities, and installations of the Project Drainage System thereon. Such rights expressly include the right to cut any trees, bushes or shrubbery, make any gradings of the soil or take any other similar action that Declarant or the Association deem reasonably necessary or appropriate. After such action has been completed, Declarant or the Association (as applicable) shall grade and seed the affected property and otherwise restore the affected property to its original condition to the extent practicable, but shall not be required to replace any trees, bushes or shrubbery necessarily removed. Declarant and the Association shall give reasonable notice of its intent to take such action to all affected Residential Owners.
6. Sale and Development Easement. An easement in favor of Declarant over, upon, across and under the Project Land as may be reasonably required in connection with the development, construction, sale and promotion, or Southpoint Terrace Declaration - 4/2/04 17 leasing, of any Lot or Living Unit within the Project or within any other property owned by Declarant, provided that no such easement shall be located within or upon any Living Unit and shall not materially adversely impair or diminish any Residential Owner's use or enjoyment of such Residential Owner's Lot or Living Unit.
easement shall be located within or upon any Living Unit and shall not materially adversely impair or diminish any Residential Owner's use or enjoyment of such Residential Owner's Lot or Living Unit.
7. Maintenance Easements. If any Living Unit is located closer than five (5) feet from its Lot line or if any utility lines or facilities exclusively serving a Living Unit are located in whole or in part on an adjoining Lot, the Residential Owner of said Living Unit shall have a perpetual access easement over the adjoining Lot to (i) repair, maintain, perform, paint, or reconstruct his Living Unit, and (ii) to repair, maintain, replace, and inspect any utility lines or facilities serving his Living Unit. Within said easement area no fence or vegetation shall be located."
8. Blanket Easement. An easement is hereby reserved in favor Declarant and the Association over the Lots and Association Property for the installation, operation, inspection, and maintenance of landscaping, a common cable television system, a common sprinkler system, entrance sign or features, or any other item for the common enjoyment and benefit of the Residential Owners. No Residential Owner shall damage, destroy, alter or otherwise disrupt any of such items so installed. Each Residential Owner shall hold the Association and/or Declarant harmless from the cost of repairing or replacing any of such items which are damaged or destroyed the acts of such Residential Owner, his family, his guests or invitees.
9. Declarant's Easement to Inspect Lots and Living Units. A perpetual easement is hereby reserved in favor of Declarant over and upon the Project Land for the purpose of allowing Declarant's inspection of the structural
ment to Inspect Lots and Living Units. A perpetual easement is hereby reserved in favor of Declarant over and upon the Project Land for the purpose of allowing Declarant's inspection of the structural portions of the Living Units and the grade and contour of the Lots. Declarant's easement to perform such inspections shall be perpetual to the extent permitted by applicable law and not subject to the provisions of Section C below.
10. PSNC Easement. A portion of the Project Land is subject to a thirty five foot (35') easement recorded in Book 199, Page 318 to Public Service Company of North Carolina, Inc. ("PSNC") pursuant to which PSNC has the right to keep the area encumbered by the easement clear of all trees, undergrowth and other obstructions interfering with PSNC's use of the easement for the installation and maintenance of a gas pipeline and related facilities. The PSNC easement is located primarily on Association Property as shown on the Site Plan. No trees, shrubbery, fences, walls or other structures shall be installed or erected on any portion of the Project Land encumbered by the PSNC easement, including any applicable portions of the Association Property or ant Lots.
11. Stormwater Agreement Easement. The City shall have the same rights as the Association over, under and upon the portions of the Project Land that provide access to and from the Ponds, for reasonable rights of access for persons and equipment to monitor, construct, install, maintain, alter, inspect, remove, relocate, replace, and repair the Ponds and to maintain and correct drainage or surface water runoff in accordance with the provisions of the City Stormwater Agreement(s) or other agreement benefiting the City and in effect at the time. Such rights expressly
d correct drainage or surface water runoff in accordance with the provisions of the City Stormwater Agreement(s) or other agreement benefiting the City and in effect at the time. Such rights expressly include the right of the City to perform the obligations of the Association if the Association fails to adequately operate, maintain, keep, repair, replace and reconstruct all or any portion of the Ponds, in accordance with and as provided in the City Stormwater Agreements or other agreement benefiting the City and in effect at the time.
12. Additional Easements. Declarant (until the Turnover Date) and the Association, on their behalf and on behalf of all Residential Owners, each shall have the right to (i) grant additional easements over, upon, under and/or across the Association Property in favor of Declarant or any Person, entity, Governmental Authority or utility company, or modify, relocate, abandon or terminate existing easements benefiting or affecting the Project Land. In connection with the grant, modification, relocation, abandonment or termination of any easement, Declarant reserves the right to relocate roads, parking areas, utility lines, and other Improvements upon or serving the Project Land. So long as the foregoing will not adversely interfere with the use of Living Units or Lots for dwelling purposes, no consent of any Residential Owner or any mortgagee of any Lot or Living Unit shall be required or only the consent of the Residential Owners and Institutional Mortgagees adversely affected shall be required. To the extent required, all Residential Owners hereby irrevocably appoint Declarant and/or the Association as their attorney-in-fact for the foregoing purposes.
Southpoint Terrace Declaration - 4/2/04 18
the extent required, all Residential Owners hereby irrevocably appoint Declarant and/or the Association as their attorney-in-fact for the foregoing purposes.
Southpoint Terrace Declaration - 4/2/04 18 C. Assignments. The easements reserved hereunder may be assigned by Declarant or the Association in whole or in part to any Governmental Authority, or any duly licensed or franchised public utility, or any other designee of Declarant. The Residential Owners hereby authorize Declarant and/or the Association to execute, on their behalf and without further authorization, such grants of easement or other instruments as may from time to time be necessary to grant easements over and upon the Project Land or portions thereof in accordance with the provisions of this Declaration.
Except as may be expressly provided otherwise, all easement rights reserved or granted to Declarant shall terminate upon Declarant no longer owning any portion or interest in the Project Land for sale in the ordinary course of business. In addition, the easement rights granted or reserved by Declarant hereunder are not to be construed as creating an affirmative obligation to act on the part of Declarant.
ARTICLE 9 MAINTENANCE AND REPAIR A.
By the Association.
1. Association Property. Except as otherwise specifically set forth herein, the Association shall repair, maintain and replace any and all Improvements located on the Association Property commencing with the completion of same by Declarant. The Improvements shall be maintained in the same condition as originally constructed by Declarant. In the event of any damage or destruction to the Association Property, or to the Improvements and facilities
rovements shall be maintained in the same condition as originally constructed by Declarant. In the event of any damage or destruction to the Association Property, or to the Improvements and facilities located thereon by fire, storms, acts of God, acts of government, acts of third parties or other calamity, the Association shall be required to rebuild such Improvements and facilities as quickly as practicable.
2. Services Provided for the Lots and Living Units. The Association shall be responsible for maintaining the grass, plants, shrubs, trees, and landscaping, (hereinafter the "Yard Improvements”) on the Lots installed by the Declarant or the Association. The Association shall also maintain any Yard Improvements installed by a Residential Owner with prior approval by affirmative vote of a majority of the Members of each Class, and prior written consent of the Association (but only to the extent that such consent specifically provides that the Association will maintain such added landscaping), provided, however, that: (i) the Association's obligation to maintain shall not include the obligation to replace any plant, shrub or tree for any reason; and (ii) the Association shall not be responsible for repair or replacement of any Yard Improvements when such repair or replacement is necessitated by work done by or at the request of any Residential Owner or any utility company or Governmental Authority.
Following the expiration of Declarant's warranty period for a Living Unit, the Association shall also be obligated to make annual inspections of the exterior walls and siding of the Living Units conveyed by Declarant and to compile a report of such inspection regarding any portions of the Living Units in need of power-washing or re-
ections of the exterior walls and siding of the Living Units conveyed by Declarant and to compile a report of such inspection regarding any portions of the Living Units in need of power-washing or recaulking. The Association shall provide a copy of the inspection report to each of the Residential Owners, and if the inspection report indicates the need to power-wash or re-caulk any portions of a Living Unit, the Residential Owner of the applicable Living Unit shall thereafter as soon as reasonably possible, power-wash and re-caulk the applicable portions of such Living Unit as recommended by the inspection report.
Except as specifically provided for in this Section A.2 of Article 9, the Association shall have no responsibility to maintain or repair any Living Unit or any portion thereof or for insuring any Living Unit or other Improvements on any Lot, and shall not be liable for any damage to any Living Unit, except such damage caused by the Association, its duly authorized agents or employees. The Association shall have the right, but not the obligation, by the affirmative vote of a majority of the Members of each Class, to accept certain items, areas or Improvements on a Lot for maintenance by the Association, including, but not limited to, Yard Improvements installed by a Residential Owner. Such acceptance shall be in writing and may be subject to such terms and conditions, including, but not Southpoint Terrace Declaration - 4/2/04 19 limited to, a special assessment or increased annual assessment for that Living Unit, as the Association might establish in such written acceptance.
B.
By the Residential Owners.
1. Living Units and Lots. Except for any items to be maintained by the Association, each Residential Owner
as the Association might establish in such written acceptance.
B.
By the Residential Owners.
1. Living Units and Lots. Except for any items to be maintained by the Association, each Residential Owner shall maintain his Living Unit and all Improvements and personal property upon his Lot in good condition at all times. The exterior of all Living Units including but not limited to roofs, walls, doors, windows, patio areas, pools, screenings, and awnings shall be maintained in good condition and repair and in a neat and attractive manner. All exterior painted areas shall be painted as reasonably necessary, with colors which are harmonious with other Living Units, and no excessive rust deposits on the exterior of any Living Unit, peeling of paint or discoloration of same shall be permitted. No Residential Owner shall change the exterior color of his Living Unit without the consent of the Committee. All sidewalks, driveways and parking areas within the Residential Owner's Lot or serving the Residential Owner's Living Unit shall be cleaned and kept free of debris; and cracks, damaged and/or eroding areas on same shall be repaired, replaced and/or resurfaced as necessary.
2. Association's Right to Perform Maintenance. If a Residential Owner fails to maintain his Lot or Living Unit in accordance with this Declaration, the Association shall have the right, but not the obligation, upon fifteen (15) days' written notice to the Residential Owner, to enter upon the Lot for the purpose of performing the maintenance and/or repairs described in such notice to the Residential Owner, as applicable. Provided, however, if the maintenance or repair is necessitated due to an emergency, the Association shall have the right to perform the maintenance and/ or repairs upon 24
ntial Owner, as applicable. Provided, however, if the maintenance or repair is necessitated due to an emergency, the Association shall have the right to perform the maintenance and/ or repairs upon 24 hours advance written notice. The cost of performing such maintenance and/or repairs and the expense of collection (including, but not limited to, Legal Fees) shall be assessed by the Association against the Residential Owner as an Individual Expense Assessment.
C.
Party Walls. Each wall which is built as a part of the original construction of a Living Unit and placed on the dividing line between the Lots and all reconstruction or extensions of such walls shall constitute party walls. To the extent not inconsistent with the provisions of this Section C of Article 9, the general rules of law regarding party walls, lateral support, in-below ground construction and of liability for property damage due to negligence or willful acts or omissions shall apply.
1. The Residential Owners of contiguous Lots who share a party wall shall both equally have the right to use such wall, provided that such use by one Residential Owner does not interfere with the use and enjoyment of the party wall by the other Residential Owner.
2. The following provisions shall apply to all party walls constructed in the Project: (i) The cost of reasonable repair and maintenance of a party wall shall be shared by the Residential Owners who make use of the wall in proportion to such use; (ii) If a party wall is destroyed or damaged by fire or other casualty, any Residential Owner who has used the wall may restore it. If other Residential Owners make use of the wall, they shall contribute to the cost
wall is destroyed or damaged by fire or other casualty, any Residential Owner who has used the wall may restore it. If other Residential Owners make use of the wall, they shall contribute to the cost of restoration thereof in proportion to such use; subject, however, to the right of any Residential Owners to call for a larger contribution from the others under any rule of law regarding liability for negligence or willful acts or omissions; (iii) The Residential Owner may construct or reconstruct a party wall subject to and within the limitations of architectural control and other limitations of this Declaration with the right to go upon the adjoining Lot to the extent reasonably necessary to perform the construction. The construction shall be done expeditiously. Upon completion of the construction, the Residential Owner shall restore, as is reasonably practicable, the adjoining Lot to as near the same condition which prevailed on or before the commencement of the construction; (iv) The right of any Residential Owner to contribution from any other Residential Owner under this Section C.2 shall be appurtenant to the land and shall pass to the Residential Owner's successors in title; and (v) If any Residential Owner desires to sell his Living Unit, he may, in order to assure a prospective purchaser that no adjoining Residential Owner(s) has a right of contribution as provided in this Article, request that the adjoining Residential Owner(s) provide a certification that no Southpoint Terrace Declaration - 4/2/04 20 20 right of contribution exists. It shall be the duty of each adjoining Residential Owner to make a certification as to whether there is any pending claim of contribution immediately upon request and without charge.
tribution exists. It shall be the duty of each adjoining Residential Owner to make a certification as to whether there is any pending claim of contribution immediately upon request and without charge.
3. Any Residential Owner proposing to modify, make additions to rebuild his Living Unit in any manner which requires the alteration or disturbance of any party wall shall obtain the written consent of the adjoining Residential Owner prior to commencing the applicable work. The provisions of this Article shall also apply to any fence, barrier or other shared Improvement installed by Declarant on the dividing Line between Lots and to any replacement thereof authorized by the Committee.
4. In the event of a dispute between Residential Owners with respect to the repair or rebuilding of a party wall or other shared Improvement, then upon the written request of one of such Residential Owners addressed to the Association, the matter shall be submitted to the Board, who shall decide the dispute, and the decision of the Board shall be final and conclusive upon the Residential Owners.
D.
Inspections by Declarant.
1. Structural. Declarant shall have the right to perform periodic inspections of the structural Improvements located upon each Lot, including but not limited to, the roof, foundation, and exterior wall of the Living Unit situated on the Lot. Declarant shall provide a Residential Owner with reasonable advance notice of Declarant's intent to perform such inspection. Each Residential Owner shall cooperate with Declarant as is reasonably necessary for Declarant to be able to complete an accurate and thorough inspection of the structural components of such Residential Owner's Living Unit. No
ll cooperate with Declarant as is reasonably necessary for Declarant to be able to complete an accurate and thorough inspection of the structural components of such Residential Owner's Living Unit. No Residential Owner shall take any action that would disrupt, prevent or limit Declarant's ability to perform such inspection(s).
2. Grading; Drainage. Declarant shall have the right to perform periodic inspections of the grading, contour, and landscaping on a Lot for the purpose of determining any deficiencies or problems contributing to inadequate drainage, excessive moisture retention, structural deterioration, or other damaging or adverse conditions. Declarant shall prepare a report of such inspection(s) and provide a copy to the Association. Following the receipt of Declarant's report, the Association shall provide a copy of the report to all of the Owners.
A.
ARTICLE 10 ARCHITECTURAL CONTROL Establishment. "Committee” shall mean the architectural control committee, which shall be the governing body charged with promoting and maintaining a high level of design, quality, harmony and conformity throughout the Project consistent with this Declaration. Until the Termination of Declarant's Architectural Control (referred to below), Declarant shall constitute the Committee, and may approve Plans and Submissions or take other actions on behalf of the Committee in Declarant's own name or in the name of the Committee. After the Termination of Declarant's Architectural Control, the Committee shall be composed of at least three (3) individuals appointed by the Board, each of who shall be a Residential Owner. The Committee shall act by simple majority vote. In the event of death, resignation or other removal
of at least three (3) individuals appointed by the Board, each of who shall be a Residential Owner. The Committee shall act by simple majority vote. In the event of death, resignation or other removal of any Board appointed member of the Committee, the Board shall appoint a successor member. No member of the Committee shall be entitled to compensation for, or be liable for claims, causes of action or damages arising out of services performed pursuant to this Declaration. Declarant shall cease to control and constitute the Committee on the earlier of: (a) the date on which Declarant records in the Public Records, a document declaring the termination of its control of the Committee, or (b) at such time as Declarant no longer owns a Lot or Living Unit in the Project ("Termination of Declarant's Architectural Control").
B.
Purpose. The Committee is established to provide a system of review for the construction or modification of all Improvements within the Project. No Improvement shall be commenced, improved or altered, nor shall any grading, Southpoint Terrace Declaration - 4/2/04 21 excavation or change of exterior color or other work which in any way alters the exterior appearance of an Improvement be done without the prior written approval of the Committee.
C.
Development Standards. The Committee is empowered to publish or modify from time to time, design and development standards for the Project, including, but not limited to, standards for the following (“Standards”): (i) architectural design of Improvements, including, but not limited to, design standards for any Living Unit or other Improvement constructed upon a Lot; (ii) exterior building materials and colors; (iii) exterior appurtenances relating to
, including, but not limited to, design standards for any Living Unit or other Improvement constructed upon a Lot; (ii) exterior building materials and colors; (iii) exterior appurtenances relating to utility installation; (iv) signs and graphics, mailboxes and exterior lighting; (v) building setbacks, pools and pool decks, side yards and related height, bulk, and design criteria; (vi) pedestrian and bicycle ways, sidewalks and pathways; and (vii) all buildings, landscaping and Improvements on lands owned or controlled by the Association. After Termination of Declarant's Architectural Control, a copy of any Standards promulgated by the Committee shall be subject to approval by the Board. After the Board's approval, a copy of the Standards will be made available to all Members.
D.
Requirement of Committee Approval. No Improvement of any kind shall be erected, placed or maintained on the Project Land, and no addition, alteration, modification or change to any Improvement on the Project Land shall be made without the prior written approval of the Committee. For purposes of this Declaration, Declarant Improvements means any Improvement erected, placed, or maintained with the approval of Declarant, including, without limitation, any building, wall, fence, swimming pool, or screened enclosure, constructed, installed or placed by or with the approval of Declarant prior to the Termination of Declarant Control (collectively, “Declarant Improvements"). Declarant Improvements are not subject to the approval of the Committee and are deemed to conform to the plan of development for the Project Land.
E. Obtaining Committee Approval. In order to obtain the approval of the Committee, a complete set of plans
l of the Committee and are deemed to conform to the plan of development for the Project Land.
E. Obtaining Committee Approval. In order to obtain the approval of the Committee, a complete set of plans and specifications ("Plans") for proposed Improvements shall be submitted to the Committee for its review. The Plans shall include, as appropriate, the proposed location, grade, elevations, shape, dimensions, exterior color plans, approximate costs, and nature, type and color of materials to be used. The Committee may also require the submission of additional information and materials as may be reasonably necessary for the Committee to evaluate the proposed Improvement or alteration (“Submissions"). The Committee shall have the right to refuse to approve any proposed Plans that, in its sole discretion, are not suitable or desirable. Any and all approvals or disapprovals of the Committee shall be in writing and shall be sent to each respective Residential Owner submitting same. If the Committee fails to approve or to disapprove in writing any Plans and/or Submissions after: (i) submission to the Committee of the last item of the Plans and Submissions requested by the Committee, so that the Committee has a complete package of all Plans and Submissions requested by the Committee; and (ii) sixty (60) days have elapsed since submission and written request for approval or disapproval was delivered to the Committee by the Residential Owner; then said Plans and Submissions shall be deemed to have been approved by the Committee provided, however, that no Improvement shall be erected or shall be allowed to remain which violates any conditions or restrictions contained in this Declaration, or which violates any applicable zoning or building
ver, that no Improvement shall be erected or shall be allowed to remain which violates any conditions or restrictions contained in this Declaration, or which violates any applicable zoning or building ordinance or regulation. The approval by the Committee relates only to the aesthetics of the Improvements shown on the Plans and Submissions and not to their sufficiency or adequacy. Each Residential Owner shall be responsible for obtaining all necessary technical data and to make application to and obtain the approval of the appropriate Governmental Authorities prior to commencement of any construction.
F.
Scope of Review. The Committee shall review and approve or disapprove all Plans and Submissions solely on the basis of aesthetic standards as to the aesthetic quality of materials and workmanship to be used, suitability and harmony of location, structure and external design in relation to surrounding topography and structures and the overall benefit or detriment which would result to the immediate vicinity and to the Project as a whole and any other factors deemed relevant to the review by the Committee in its opinion, reasonably exercised. The Committee shall take into consideration the aesthetic aspects of the architectural design, placement of buildings, color schemes, exterior finishes and Southpoint Terrace Declaration - 4/2/04 22 materials and similar features, and shall not be responsible for reviewing, nor shall its approval of any Plans be deemed approval of, any design or plan from the standpoint of structural safety or conformance with building or other codes.
G.
Variance from Standards. The Committee may authorize, in a reasonable manner so as not to destroy the
n or plan from the standpoint of structural safety or conformance with building or other codes.
G.
Variance from Standards. The Committee may authorize, in a reasonable manner so as not to destroy the general scheme or plans of the development of the Project, variances from compliance with any Standards which it has promulgated pursuant to its authority when circumstances such as topography, natural obstructions, hardship, aesthetics or environmental considerations may require. If any such variances are granted, no violation of the restrictions contained in this Declaration shall be deemed to have occurred with respect to the matter for which the variance was granted. The granting of such a variance shall not operate to waive any of the terms and provisions of this Declaration for any purpose, except as to that particular property and particular provision hereof or Standards promulgated hereby which are covered by the variance. Such variance shall be evidenced in writing.
H.
Enforcement. There is specifically reserved unto the Committee the right of entry and inspection upon any Lot or other portion of the Project Land for the purpose of determination by the Committee whether there exists any Improvement which violates the terms of any approval by the Committee or the terms of this Declaration. Except in emergencies, any exercise of the right of entry and inspection by the Committee hereunder should be made only upon reasonable notice given to the Residential Owner of record at least twenty-four (24) hours in advance of such entry. The Association, acting pursuant to the direction of the Committee, is specifically empowered to enforce the provisions of this
wner of record at least twenty-four (24) hours in advance of such entry. The Association, acting pursuant to the direction of the Committee, is specifically empowered to enforce the provisions of this Declaration by any legal or equitable remedy, and in the event it becomes necessary to resort to litigation to determine the propriety of any Improvement, or to remove any unapproved Improvements, the prevailing party in such litigation shall be entitled to recover all Legal Fees incurred in connection therewith. The Association shall indemnify and hold harmless any member of the Committee from all costs, expenses and liabilities, including attorneys fees incurred by virtue of any member's service as a member of the Committee, provided such member acted in good faith and without malice.
I. Subcommittees and Delegation of Authority. The Committee may establish subcommittees for the purpose of acting on behalf of the Committee with respect to similar circumstances, situations, or types of Improvements, such as a swimming pool subcommittee or a subcommittee which would deal with modifications of existing Improvements or additional new Improvements ancillary to an existing Living Unit, in contrast to the construction of initial Improvements upon a previously unimproved Lot. All rights and powers of the Committee may be delegated to such subcommittee with regard to the subject matter of the subcommittee. The rights and powers of the Committee may be assigned to a management company, an architect, design professional or other entity, or any portion of such rights and powers applicable to a particular subcommittee or area of similar circumstance.
ARTICLE 11 USE RESTRICTIONS
ompany, an architect, design professional or other entity, or any portion of such rights and powers applicable to a particular subcommittee or area of similar circumstance.
ARTICLE 11 USE RESTRICTIONS For purposes of this Article 11, unless the context otherwise requires, Residential Owner shall also include the family, invitees, guests, licensees, lessees and sublessees of any Residential Owner, and any other permitted occupants of a Living Unit. In addition to any other restrictions set forth in this Declaration, all the Lots and Living Units shall be held, used and enjoyed subject to the following limitations and restrictions, subject to the exemption of Declarant as provided in this Article and elsewhere in this Declaration.
A.
Residential Use. The Lots and Living Units shall be for single-family residential use only. No trade, business, profession or commercial occupation or activity may be carried on in the Project Land without the consent of the Board except for such occupation or activity permitted to be carried on by Declarant or as is expressly permitted below. In addition, temporary guests are permitted so long as they do not create an unreasonable source of noise or annoyance to the other residents of the Project.
Southpoint Terrace Declaration - 4/2/04 23 B. Non-Residential Activities or Uses. No trade, business, profession or commercial activity, or any other non residential use shall be conducted on the Property or within any Lot or Living Unit without the consent of the Board except that a Residential Owner or occupant residing in a Living Unit may conduct business activities within the Living Unit so long as: (i) the existence or operation of the business activity is not apparent or detectable by sight, sound, or smell from
in a Living Unit may conduct business activities within the Living Unit so long as: (i) the existence or operation of the business activity is not apparent or detectable by sight, sound, or smell from outside the Living Unit; (ii) the business activity conforms to all zoning requirements for the Property; (iii) the business activity does not involve door-to-door solicitation of residents noticeably greater than that which is typical of Living Units in which no business activity is being conducted; and (v) the business activity is consistent with the character of the Project, and does not constitute a nuisance, a hazardous or offensive use, or a threat to the security or safety of others, (iv) the business activity does not, in the Board's judgment, generate a level of vehicular or pedestrian traffic or a number of vehicles being parked in the Project which is beyond the level of traffic and vehicular parking that occurs in residential developments similar to the Project, as the Board determines in its sole discretion. The foregoing limitations shall not preclude occasional garage sales, moving sales, rummage sales, or similar activities, provided that such activities may not be held on any one Lot more than once in any three-month period and, when held, may not exceed two (2) consecutive days in duration. The foregoing shall not prohibit a Residential Owner from leasing his Living Unit.
Nuisances. No obnoxious or offensive activity shall be carried on about the Lots or in or about any Improvements, Living Units, or on any portion of the Property nor shall anything be done therein which may be or become an unreasonable annoyance or a nuisance to any Residential Owner. No use or practice shall be allowed in or around the
portion of the Property nor shall anything be done therein which may be or become an unreasonable annoyance or a nuisance to any Residential Owner. No use or practice shall be allowed in or around the Living Units and Lots which is a source of annoyance to Residential Owners or occupants of Living Units or which interferes with the peaceful possession or proper use of the Living Units or the surrounding areas. No loud noises or noxious odors shall be permitted in any Improvements, Living Units or Lots.
D. Outside Storage of Personal Property. The personal property of any Residential Owner shall be kept inside the Residential Owner's Living Unit, except for patio furniture and accessories, and other personal property commonly kept outside, which must be kept in the rear of the Lot and must be neat appearing and in good conditions.
E.
Parking and Vehicular Restrictions. Vehicles may be parked or stored only on portions of a Lot improved for that purpose, i.e., garage, driveway, carport or parking pad. No unenclosed parking shall be constructed or maintained on any Lot except a paved driveway and an attached paved parking pad, which pad shall be designed for the parking of not more than 2 vehicles. Any driveway or parking pad constructed upon any Lot shall have either an asphaltic concrete surface, a cement concrete surface, or brick pavers.
No mobile house trailer (whether on or off wheels), vehicle or enclosed body of the type which may be placed on or attached to a vehicle (known generally as "campers”), or commercial vehicle of any kind shall be parked on the street within the Subdivision, nor shall any such vehicle be parked or kept on any Lot. Furthermore, no boat or boat
n generally as "campers”), or commercial vehicle of any kind shall be parked on the street within the Subdivision, nor shall any such vehicle be parked or kept on any Lot. Furthermore, no boat or boat trailer shall be parked on the street within the Project. No tractor trailer trucks or cabs shall be parked on any street or Lot within the Project.
No vehicle of any type which is abandoned or inoperative shall be stored or kept on any Lot in such manner as to be seen from any other Lot, any street within the Project or any Association Property and no automobiles or mechanical equipment may be dismantled or allowed to accumulate on any Lot.
F. No Improper Uses. No improper, offensive, hazardous or unlawful use shall be made of any Living Unit or Lot nor shall anything be done thereon tending to cause embarrassment, discomfort, annoyance or nuisance to any Residential Owner or occupant of the Project. Residential Owners shall observe and obey all valid laws, zoning ordinances and regulations of all Governmental Authorities. Violations of laws, orders, rules, regulations or requirements of any Governmental Authority, relating to any Living Unit or Lot shall be corrected by, and at the sole expense of the Residential Owner of the Living Unit or Lot.
Southpoint Terrace Declaration - 4/2/04 24