ARTICLE ONE: DEFINITIONS
ARTICLE TWO: PROPERTY SUBJECT TO DECLARATION - DESCRIPTIONS AND UNIT DESIGNATIONS
ARTICLE THREE: COMMON ELEMENTS
ARTICLE FOUR: PROPERTY RIGHTS; NATURE OF INTEREST IN UNITS
ARTICLE FIVE: ASSOCIATION, MEMBERSHIP, AND VOTING RIGHTS
ARTICLE SIX: ASSESSMENTS
ARTICLE SEVEN: LEINS
ARTICLE EIGHT: MAINTENANCE AND USE RESTRICTIONS
Pets, Rentals, Parking, Prohibited Activities, Pesticides, Weapons
ARTICLE NINE: EASEMENTS
ARTICLE TEN: COMPLIANCE WITH TOWN OF CARRBORO AND ORANGE COUNTY LAWS AND ORDINANCES
ARTICLE ELEVEN: INSURANCE
ARTICLE TWELVE: DISTRIBUTION OF INSURANCE PROCEEDS
ARTICLE THIRTEEN: DAMAGE AND DESTRUCTION
ARTICLE FOURTEEN: GENERAL PROVISIONS
To the extent applicable to this Declaration and not inconsistent herewith, all definitions contained and set forth in Chapter 47C of the General Statutes of North Carolina, as the same may be amended from time to time, (herein referred to as "the Act") are incorporated herein by reference and will have the same force and effect as if set forth verbatim and made a part hereof. In part and not by way of limitation, the following terms shall apply unless inconsistent with the Act, in which case the Act shall apply:
1.1 Act or North Carolina Condominium Act means the North Carolina Condominium Act as currently set forth in N.C.G.S., Chapter 47C, Articles 1 through 4, as amended.
1.2 Affordable Housing Unit means a dwelling Unit defined as such by Section 15-182.4 of the Land Use Ordinance of the Town of Carrboro which shall remain designated as an Affordable Housing Unit for a time period of not less than 100 years as required by Section 182.4 of the Land Use Ordinance of the Town of Carrboro.
1.3 Assessment means a Unit Owner's pro rata share of the Common Expenses which from time to time are assessed against Unit Owners by the Association.
1.4 Association means the Unit Owners' Association as defined by the Act, and also means Pacifica Condominium Unit Owners Association, Inc., the corporate form by which the Unit Owners' Association shall operate the Condominium.
1.5 Board, Board of Directors, or Executive Board means the group of persons selected, authorized and directed to operate the Association as provided by the Act, this Declaration and the Bylaws.
1.6 Building means a structure or structures, containing one or more Units and/or Common Elements comprising a part of the Property.
1.7 Common Elements or Common Areas means both the general and Limited Common Elements, as defined herein in Article 3, and in the Act, and in general, all portions of the Condominium real estate other than the Units.
1.8 Common Expenses means the expenses for which the Unit Owners are liable to the Association consisting of expenditures made by or financial liabilities of the Association, together with allocations to reserves, and includes, among other things:
(a) Expenses of administration, maintenance, insurance, operations, repair or replacement of the Common Elements including allocations to reserves, and of the portions of Units which are the responsibility of the Association.
(b) Expenses declared Common Expenses by provisions of this Declaration.
1.9 Co-Owner means a person or persons, firm, corporation, partnership, association, trust or other legal entity, or any combination thereof, which owns a Unit or which owns a ground leasehold interest in a Unit owned by Orange Community Housing and Land Trust (hereinafter referred to as “OCHLT”). The term "Owner" or "Co-Owner" shall have the same connotation as the term "Unit Owner" as used in the Act.
1.10 Condominium or Pacifica Condominium means the real estate described in Exhibit A, as attached hereto, portions of which are designated for separate ownership and the remainder of which is designated for common ownership solely by the Owners of those portions.
1.11 Declarant means Carrboro Collaborative Development Association, Inc., and its successors and assigns.
1.12 Declaration means this Declaration of Condominium establishing Pacifica Condominium and all exhibits attached hereto, as it may be amended from time to time.
1.13 Member means any person or entity who owns a Unit in the Condominium and any person or entity who owns a ground leasehold interest in a Unit owned by Orange Community Housing and Land Trust.
1.14 Membership shall mean and refer to the collection of rights, coupled with the corresponding responsibilities and obligations of being a Unit Owner.
1.15 Owner or Unit Owner means any person who has a fee simple interest in a Unit and any person who has a ground leasehold interest in a Unit owned by Orange Community Housing and Land Trust (OCHLT).
Pacifica Community – (To be defined. Shall include all condo, TH, and DH owners)
Pacifica Community Association—(To be defined. Master Association that will enforce and collect for both Condo Ass'n and TH/DH Assn)
Pacifica Community Board—(To be defined. Governing Board of Master Association).
1.19 Plat means the plat recorded at Plat Book _____, Page _____, and the plans for the Condominium recorded at Plat Book ____, Page ____, Orange County Registry.
1.20 Period of Declarant Control means the period commencing on the date hereof and continuing until the earlier of, (i) 120 days after conveyance of seventy-five percent (75%) of the Units to Unit Owners other than Declarant; (ii) two years after Declarant has either ceased to offer Units for sale in the ordinary course of business; (iii) two years after any development right to add new Units was last exercised; or (iv) the date upon which Declarant voluntarily surrenders control of the Condominium to the Association.
1.21 Property means and includes the real property (as defined in Exhibit "A" hereof, and as it may be hereinafter amended), the Buildings, all improvements and structures thereon, and all easements, rights and appurtenances belonging thereto.
1.22 Size Limited Unit means a Unit limited in size by the Carrboro Land Use Ordinance Section 15-188(e).
1.23 Special Declarant Rights means the rights as defined in the Act, including, e.g., and not necessarily limited to, the rights during the Period of Declarant Control; and the reserved development rights as described in Article 14.
2.1 Units Subject to Declaration. Bylaws, Procedures and Guidelines: All present and future Owners, tenants and occupants of Units shall be subject to and shall comply with the provisions of this Declaration, the Bylaws, and any Procedures and Guidelines that may be adopted in accordance with the Bylaws and the Declaration. The Bylaws and Procedures and Guidelines may be amended from time to time. The acceptance of a deed of conveyance, the entering into of a lease, or the entering into occupancy of any Unit shall constitute an agreement that the provisions of this Declaration, the Bylaws, and any Procedures and Guidelines which may be adopted are accepted and ratified by such Owner, tenant or occupant and all of such provisions shall be deemed and taken to be covenants running with the land and shall bind any person having at any time any interest or estate in such Unit as though such provisions were made a part of each and every deed, conveyance, lease, or occupancy agreement.
2.2 Recorded Plat: The plat and plans describing the Condominium are recorded at Plat Book , Pages through , Orange County Registry to which reference is made for a more particular description of same and are attached hereto as Exhibit B.
2.3 Description of the Condominium: The Condominium will consist of three, two and three story buildings containing fifteen (15) residential Condominium Units of varying sizes situated in Orange County, North Carolina. The Property is located in Pacifica, Viburnum Way, Carrboro, North Carolina, 27510.
(a) Each ground floor Unit will include a “contiguous covered porch or patio”.
b) The Buildings will be constructed using painted hardiplank siding over a wood frame structure. The roof will be pre-painted 5V crimp metal with a 20-year warranty on the finish. HVAC systems will be electric heat pumps. Water heaters will be direct vent gas. The first floor Units and first floor of two story Units will have colored concrete floors. Insulation will be minimum R-15 in the walls and R-30 in the attic.
(c) Interior finishes will be chosen to minimize VOC out-gassing. Party walls will be constructed to the same sound transmission and fire prevention standards as town homes. All of the Units will have a sprinkler fire suppression system.
(d) The Buildings will be situated as shown on the site plan that shall be an attachment to all contracts.
(e) Plans described in Section 2.1 above show the particulars of the Building including the layout, floor and ceiling heights, Unit numbers, and dimensions and location of Common Elements affording access to each Unit.
(f) First floor Unit 191 and second floor Unit 193 will be Affordable Housing Units as defined herein.
(g) First floor Units 171, 181, and 191 and second floor Unit 193 will be Size Limited Units as defined herein.
(h) One parking space will be assigned to each Unit in the closest proximity parking area. Parking limitations are further set forth in Article 8, Section 8.3(q) below.
2.4 Building/Unit Designation and Square Footage: The Building and Unit designation and approximate square footage of each Unit and the floor level on which said Unit is located are as follows:
| BUILDING | FLOOR LEVEL | UNIT DESIGNATION | SQUARE FOOTAGE |
|---|---|---|---|
| A | 1 | 165 | 1106 |
| 2/3 | 167 | 1460 | |
| 1/2 | 169 | 1100 | |
| 1 | 171 | 1106 | |
| 2/3 | 173 | 1460 | |
| 1/2 | 175 | 1300 | |
| B | 1 | 177 | 1106 |
| 2/3 | 179 | 1460 | |
| 1 | 181 | 1106 | |
| 2/3 | 183 | 1460 | |
| 1/2 | 185 | 1460 | |
| C | 1 | 187 | 610 |
| 2 | 189 | 610 | |
| 1 | 191 | 610 | |
| 2 | 193 | 610 |
TOTAL SQUARE FOOTAGE 16,564
The Unit designation of each Condominium Unit, its location, its dimensions, approximate area, and common Elements to which it has immediate access, and other data concerning its proper identification are set forth in the Recorded Plans referenced in Section 2.2 hereinabove.
2.5 Boundaries: General Rule. Each Unit is bounded both as to horizontal and vertical boundaries by the interior surface of its perimeter walls, ceilings and floors which are shown on said plans, as provided in General Statutes Section 47C-2-102, subject to such encroachments as are contained in the Building, whether the same now exist or may be caused or created by construction, settlement or movement of the Building, or by permissible repairs, construction or alteration, as provided in General Statutes Section 47C-2-114.
Each Unit will also include, as a part thereof, the HVAC unit and any solar equipment associated therewith and appurtenant thereto. HVAC units shall be located on the ground next to the Building in which the respective Unit is located, and any solar equipment shall be located on the roof, in the attic, or on the wall of the respective Building of the Unit to which the equipment is associated.
3.1 Common Elements. The Common Elements, Areas and facilities constructed thereon consist of all parts of the Buildings situated on the Property described above, other than the individual Units therein and described in Sections 2.3 and 2.4 above, including, without limitation, the following (except such portions of the following as may be included within an individual Unit):
(a) The land on which the Buildings have been erected and all land surrounding the Buildings as more fully described in the Recorded Plat described above in Section 2.2 of this declaration.
(b) All foundations, columns, girders, beams, supports and other structural members.
(c) All exterior walls and interior walls except those partitioned ceilings wholly within a Unit.
(d) Roofs, decks, patios, outside steps, bridges, retaining walls, walks, parking lots, drives, common house, play area, community gardens, play field, bike storage, recycling and refuse areas, defined open space, and entrances to and exits from the Building(s).
(e) All central and appurtenant installations for services such as power, light, telephone, gas, hot and cold water, heat, refrigeration, air conditioning, cable, information technology and all other mechanical equipment pertaining thereto existing for common use, (including the wiring, duct work, or other installations for the individual HVAC units) and not separately metered for individual Units.
(f) All gas pipes, water pipes, sewer pipes and sewer pumps.
(g) All other parts of the Property and all apparatus and installations existing in the Building(s) or upon the Property intended for common use or necessary for or convenient to the existence, maintenance or safety of the Property.
(h) The initial undivided interest of each Unit Owner in the Common Elements above described is as set forth on the attached Exhibit C. The undivided interest of each Unit Owner in the Common Elements as herein set forth shall not be altered except by Declarant or by Pacifica Condominium Unit Owners Association, Inc. (the "Association") as herein provided in connection with the subdivision of Units, the addition of Units, the relocation of boundaries between adjoining Units, or otherwise with the unanimous consent of all Unit Owners and the holders of all liens affecting any Units, expressed in an amendment to this Declaration duly recorded.
3.2 Limited Common Elements. Other than those portions of Common Elements designated as Limited Common Elements in the recorded plans and plat referenced in Section 2.2 hereinabove and those portions of Common Elements allocated as Limited Common Elements by operation of N.C. General Statute Section 47C-2-102 (2) or (4) or otherwise specified in the Act, there are no additional Limited Common Elements.
3.3 Partitioning. The Common Elements shall not be divided nor shall any right to partition any portion thereof exist. Nothing herein contained, however, shall be deemed to prevent ownership of a Condominium Unit by the entireties, jointly, or in common or in any other form by law permitted, or the subdivision or realignment of one or more Units as herein provided.
Every Condominium Unit, together with its undivided interest in the Common Elements, for all purposes shall be and it hereby is declared to be a separate parcel of real property and the Unit Owner thereof shall be entitled to the exclusive ownership and possession of its Condominium Unit subject only to the covenants, restrictions and easements as may be contained in this Declaration, the Bylaws of the Association, the Procedures and Guidelines adopted pursuant thereto, and the resolutions and decisions of the Board of Directors.
5.1 Association of Unit Owners: The administration of the Condominium project shall be vested in its Association of Unit Owners to be known as Pacifica Condominium Unit Owners Association, Inc. (the "Association") in accordance with the Bylaws of Pacifica Condominium Unit Owners Association, Inc. appended hereto as Exhibit D and incorporated herein by reference.
(a) The Membership of the Association shall consist of all of the Unit Owners of the Condominium, including the Declarant so long as said Declarant retains ownership of one or more of the Units. The Owner of any Unit, upon acquiring title thereto, shall automatically become a Member of said Association, and shall be required to remain a Member thereof until such time as his, her, or its ownership of such Unit ceases for any reason, when his, her or its Membership in said Association shall automatically cease. Except that OCHLT shall only be a Member with regard to any Unit it owns that is not subject to a ground lease. OCHLT's Membership with respect to each such Unit shall automatically cease upon the execution of a ground lease for such Unit. Upon the execution of a ground lease, the ground lessee shall automatically become a Member of the Association and shall be required to remain a Member thereof until such time as his, her, its ground lease ceases for any reason, at which time his, her, its, Membership in the Association shall automatically cease.
(b) Operation of the project and the maintenance, repair, replacement and operation of the Common Elements, and any additions and alterations thereto, shall be in accordance with the provisions of Chapter 47C of the North Carolina General Statutes, entitled "North Carolina Condominium Act", this Declaration, and the Bylaws of said Association.
5.2 Membership. Every Owner of a Unit, as defined in Article 1, shall be a Member of the Association. Membership shall be appurtenant to and may not be separated from ownership of any Unit which is subject to Assessment, except that the Membership of OCHLT shall be separated as described herein above.
Voting Rights. The Association shall have one class of voting Membership.
Suspension of Voting Rights. The right of any Member to vote may be suspended by the Board of Directors for just cause pursuant to the Procedures and Guidelines to be adopted by the Board, or for any period during which any Assessment against his/her Unit remains unpaid.
6.1 Creation of the Lien and Personal Obligation of Assessments. The Declarant, for each Unit, hereby covenants, and each Owner of any Unit by acceptance of a deed therefore, whether or not it shall be so expressed in such deed, is deemed to covenant and agree to pay to the Association, subject to the terms and conditions contained in Article 3 of Chapter 47C of the NC General Statutes: (1) annual assessments or charges, and (2) special assessments for capital improvements, such assessments to be established and collected as hereinafter provided. The annual and special assessments, together with interest, costs, and reasonable attorney's fees, shall be a charge on the Property and shall be a continuing lien upon the Property against which each such assessment is made. Each such assessment, together with interest, costs and reasonable attorney's fees, shall also be the personal obligation of the Owner of each Unit, and such personal obligation for assessments made for the period during which time the Owner was the record Owner of such Unit shall remain the personal obligation of such Owner and shall not pass to any successor in title unless expressly assumed by him.
6.2 Purpose of Assessments. The assessments levied by the Association shall be used exclusively for the purposes stated in N C General Statute Chapter 47C, and by way of illustration for the improvement, insurance coverage on, and maintenance of the Common Areas.
6.3 Annual Assessment. There shall be annual assessments paid by the Unit Owners to the Association, which assessments shall be paid on a quarterly basis, unless otherwise specified by the Association.
(a) The Board of Directors of the Association may fix the annual budget to an appropriate amount, and shall give written notice of the assessment amount to all Owners at least thirty (30) days prior to the due date.
(b) Interest generated by the subject fund may be applied to administration of the Association and to ordinary maintenance activity in reducing the costs thereof.
6.4 Maximum Annual Assessment. Until January 1 of the year immediately following the conveyance of the first Unit to an Owner, the maximum Annual Assessment shall be a________________________and No/100 ($_________.00) per Unit.
(a) From and after January 1 of the year immediately following the conveyance of the first Unit to an Owner, the maximum Annual Assessment may be increased each year not more than five percent (5%) above the maximum Annual Assessment for the previous year without a vote of the Membership.
(b) From and after January 1 of the year immediately following the conveyance of the first Unit to an Owner, the maximum Annual Assessment may be increased above five percent (5%) by a vote of two-thirds (2/3) of the Members who are voting in person or by proxy, at a meeting duly called for this purpose.
(c) The Board of Directors may fix the Annual Assessment at an amount not in excess of the maximum.
6.5 Special Assessments for Capital Improvements: In addition to the Annual Assessments authorized above, the Association may levy, in any Assessment year, a special Assessment applicable to that year only for the purpose of defraying, in whole or in part, the cost of any repair or replacement of the Common Area, provided that any such Assessment shall have the assent of two-thirds (2/3) of the votes of the Members who are voting in person or by proxy, at a meeting duly called for this purpose.
6.6 Notice and Quorum for Any Action Authorized Under Sections 6.3, 6.4, and 6.5. Written notice of any meeting called for the purpose of taking any action authorized under Section 6.3 or 6.4 shall be sent to all Members not less than thirty (30) days nor more than sixty (60) days in advance of the meeting. At the first such meeting called, the presence of Members or of proxies entitled to cast sixty percent (60%) of all the votes of Membership shall constitute a quorum. If the required quorum is not present, another meeting may be called subject to the same notice requirement, and the required quorum at the subsequent meeting shall be one half of the required quorum at the preceding meeting. No such subsequent meeting shall be held more than sixty (60) days following the preceding meeting.
6.7 Uniform Rate of Assessment-House Size Multiplier. Both annual and special Assessments must be fixed at a uniform rate for all Units. Said fixed rate can be proportionate to the size of the Unit or number of occupants as deemed appropriate by the Condominium Association. The initial rate will be based on a formula that proportions 75% of rate per Unit and 25% per square footage of Unit.The said Assessments may be collected on an annual, quarterly or monthly basis.
6.8 Date of Commencement of Annual Assessments: Due Dates. The Annual Assessments provided for herein shall commence as to all Units on the first day of the month following the conveyance of the first Unit to a third party by the Declarant. The first Annual Assessment shall be adjusted according to the number of months remaining in the calendar year. The Board of Directors shall fix the amount of the Annual Assessment against each Unit at least thirty (30) days in advance of each Annual Assessment period. Written notice of the Annual Assessment shall be sent to every Owner subject thereto. The due dates shall be established by the Board of Directors. The Association shall, upon demand, and for a reasonable charge, furnish a certificate signed by an officer of the Association setting forth whether the Assessments on a specified Unit have been paid.
6.9 Effect of Nonpayment of Assessments: Remedies of the Association. Any Assessment not paid within thirty (30) days after the due date shall bear interest from the due date at the then maximum legal rate and to the extent permitted by law. The Association, its agent or representative, may bring an action at law against the Owner personally obligated to pay the same or foreclose the lien against the Unit. Interest, costs and reasonable attorney's fees of such action or foreclosure shall be added to the amount of such Assessment. No Owner may waive or otherwise escape liability for the Assessments provided for herein by non-use of the Common Area or abandonment of her Unit.
6.10 Subordination to the Lien of Mortgages. The lien of the Assessments provided for herein shall be subordinate to the lien of any first mortgage. Sale or transfer of any Unit shall not affect the Assessment lien. However, the sale or transfer of any Unit pursuant to any first mortgage foreclosure under a power of sale or any proceeding in lieu thereof, shall extinguish the lien of such Assessments as to payments which became due prior to such sale or transfer. No sale or transfer shall relieve any subsequent Owner of such Unit from liability for any Assessments thereafter becoming due or from the lien thereof.
6.11 Exempt Property. The following Properties subject to the Declaration shall be exempt from the Assessments, charges and liens created herein:
(a) All Properties dedicated and accepted by local public authority or state and/or devoted to public use; and
(b) All Common Areas within the Properties described above in Article 3.
6.12 Working Capital Fund. The Association will establish and maintain a working capital fund for the initial months of the development operations. The funds shall be established by the collection of an amount equal to two (2) months of the Annual Assessment if it were to be divided equally over twelve (12) months for such Unit at the time of the closing of the initial sale by Declarant for each Unit to an Owner. The said amount shall be collected from the buyer at closing, and shall be considered as advance payment of regular Assessments. After the first year following the transfer of all Condominium Units, this capital fund may be delegated to a sinking fund for long term maintenance items such as roofs, paving, parking, etc. as determined by the Board of Directors.
While the Property remains subject to this Declaration and the provisions of the North Carolina Condominium Act, no liens other than liens created to secure mortgage financing of individual Units shall arise or be created against the Common Elements except with the consent in writing of at least eighty percent (80%) of the votes allocated to all Units, except such liens as may arise or be created against the several Units and their respective common interests under the provisions of the North Carolina Condominium Act. Every agreement for the performance of labor, or the furnishing of materials to the Common Elements, whether oral or in writing, must provide that it is subject to the provisions of this Declaration and the right to file a mechanic's lien or other similar lien against the Common Elements by reason of labor performed or materials furnished is waived.
8.1 Responsibilities for Maintenance and Repair.
(a) Grounds keeping. It shall be the responsibility of each Unit Owner and the Board of Directors to prevent the development of any unclean, unsightly, or unkept conditions of the Building(s) or grounds on such Property, which shall tend to decrease the appearance of the Condominium as a whole or in a specific area.
(b) Streets and Driveways. Unless the same are dedicated to and accepted by the appropriate municipal authority, maintenance responsibility for the private streets and driveways as shown on all recorded maps shall be the Association's.
(c) Common Areas Adjacent to Units. Each Unit Owner shall be responsible for cleaning the exterior area adjacent to their Unit. This shall include stairs, bridges to Units, exterior patios and decks, landscaping between Units and natural areas, and between Units and retaining walls. Although these are Common Areas, it is the responsibility of the Unit Owner to maintain them in an order consistent with the norm of all Unit Owners.
(d) Disposal of Garbage/Trash. Garbage and trash shall be disposed of only in areas specifically designated for that purpose.
(e) Cooperative Maintenance of Common Areas. All Common Areas and facilities shall be maintained by the Association in accordance with the Open Space Management Plan of the Association, attached hereto as Exhibit E. This Plan provides for some maintenance of the Common Areas by Owners or their tenants as a condition of the Owners' participation in the Association. Owners and their tenants agree to abide by the provisions of the Open Space Management Plan.
8.2 Procedures and Guidelines
The Board of Directors of the Association shall have the power to formulate, publish and enforce reasonable Procedures and Guidelines concerning the use and enjoyment of the Common Areas.
(a) Nuisance. No noxious or offensive activity shall be carried on, in, or upon any Unit, nor shall anything be done therein tending to cause discomfort, annoyance or nuisance to the Condominium or to other Unit Owners. There shall not be maintained in or upon any Unit any plants, animals, or device or thing of any sort whose normal activities or existence is in any way noxious, dangerous, unsightly, unpleasant, or of a nature as may diminish or destroy the enjoyment of other Property in the Condominium by the other Unit Owners thereof. No one shall interfere with or otherwise restrict the free right of passage of the Owners, their agents, tenants, guests or employees over driveways or passageways leading to their respective Units or to the parking areas.
(b) Animals and Pets. Household pets shall be welcomed into the community. All Unit Owners and community members shall be bound by the Animal Control Ordinance of the Town of Carrboro. Owners shall also be bound by the pet control guidelines established by the HOA, which may be stricter than the Town of Carrboro Ordinance.
(c) Signs. Each Unit Owner may install an identification sign on the exterior of the Owners' Unit in accordance with the Procedures and Guidelines adopted by the Association. No other commercial signs, with the exception of "For Rent, or "For Sale," signs which contain the Building and Unit designation of the subject property, shall be erected or maintained on any Unit, except during the initial period of Declarant control set forth above or with the written permission of the Board of Directors, or except as may be required by legal proceedings, it being understood that the Board of Directors will not grant permission for said signs unless their erection is reasonably necessary. There shall be no personal signs of any kind, including but not limited to “For Rent” and “For Sale” signs at the entrance of the Condominium unless authorized pursuant to the Procedures and Guidelines adopted by the Association.
(d) Use of Common Areas. Planting and/or gardening shall be done upon the Common Area as authorized and/or permitted by the Board of Directors of the Association and in accordance with the Open Space Management Plan attached hereto as Exhibit E.
(e) Carports. Carports are subject to the provisions and restrictions of the Pacifica Parking Plan.
(f) Temporary / Additional Structures. No temporary structure shall be placed upon the Property at any time. No tent, storage shed, carport, tree house or other similar outbuilding or similar structure shall be placed on the Property at any time, either temporarily or permanently without express permission of the Association as evidenced by a two-thirds (2/3) majority vote in favor of such temporary structure.
(g) Clotheslines. Owners shall consult with neighbors and the Board in the placement of outside clotheslines to minimize the conflict that may arise with this issue.
(h) Stormwater Management. The Association is responsible for maintaining the stormwater structures on site in accordance with the Stormwater Structure Maintenance Plan, attached hereto as Exhibit F.
(i) Radio / Television Antennas. No exposed or exterior radio or television transmission or receiving antennas shall be erected, placed or maintained on any part of any Unit or upon a structure thereon which shall exceed a height of four (4) feet above the highest point of the roof of the residential structure upon such Unit without express permission from the Association. In addition, no dish apparatus intended for the reception of cable communication transmission in excess of 24" in diameter shall be erected, placed or allowed to remain on any Unit where it may be viewed from any Common Area.
(j) Landscaping. The Pacifica Community will be responsible for the landscaping and maintenance of all of the Common Areas. All soils and vegetation in the Common Area, including the undisturbed natural areas of the Property and the vegetated buffer strips adjacent to our neighbor's property, are the concern of the entire Pacifica Community. In general, the landscaping and maintenance of these areas will be done in accordance with the Open Space Management Plan attached hereto as Exhibit E.
(1) With the exception of the areas set aside for garden plots, no vegetation on the Common Area shall be planted, damaged or removed without the prior approval of the Landscape Committee. However, invasive exotics (as described in the Town of Carrboro Land Use Ordinance, List of Exotic Invasive Species), poison ivy and poison oak may be removed without such approval.
(2) Unit Owners may landscape along the inner pathways, including the paths between Buildings and including any area contiguous to their Unit or Building out to the inside edge of the loop roadway, with the exception of the bioretention areas, in cooperation with their adjacent neighbors.
(3) No plantings or encroachments are allowed within OWASA water or sewer easements except plantings approved by OWASA as indicated in the Open Space Management Plan attached hereto as Exhibit E. Plantings not on the list must be approved by the Landscape Committee.
(k) Size Limited Units. Four Units are Size Limited Units as described in Article 1, Section 1.19 of this Declaration, and it is the further intent of the Declarant to comply with all Town of Carrboro ordinances and regulations concerning Size Limited Units. The four Units that are designated as Size Limited Units are 171, 181, 191, and 193. No additions or interior renovations designed to increase the square footage of the Size Limited Units may be approved/completed within the first year following the issuance of the certificate of occupancy (CO) per Section 15-188(e) of the Carrboro Land Use Ordinance.
(l) Solar Access. The Association, nor any Owner, shall not construct any structure or plant any tree which will affect any Unit's direct southerly solar access. Access is defined as direct southerly solar radiation on a Unit's primary collection area between 10 AM and 2 PM on December 22. Any exceptions may be agreed to by the affected parties.
(m) Utility Charges for Water, Cistern Water Pumping, and Street and Pathway Lights. As consideration for the conveyance of the Common Area and as consideration for the rights, entitlements, and benefits granted to and conferred upon the Association under and by virtue of this Declaration, the Association covenants and agrees to accept the responsibility for payment of any and all fees, charges and expenses arising by virtue of the use of water provided to and used in connection with any of the Common Area and cistern water pumping, and by virtue of the use and operation of the street and pathway lights (or any other utility) installed and erected within the Common Areas. Such cost of fees, charges and expenses paid shall be charged ratably to the Owners as an Assessment according to the provisions of Article 6 above.
(n) Pool and Pond Use. Each Owner's use and enjoyment of any pool, pond and/or shop that may be constructed upon the Property and other adjoining Common Area shall be subject to the following provisions:
(1) no full size motorized boats shall be allowed or permitted;
(2) no boats may be stored or left unattended on the pond or upon any other Common Areas not designated for storage;
(3) no net fishing, with the exception of minnow seines or nets, shall be allowed or permitted;
(4) no dumping or discharge of any foreign substance into the pool or pond shall be allowed or permitted;
(5) the Association shall not be responsible for supervision of any activities or uses of or on or in the pool or pond or shop;
(6) at all times when the pool or pond or shop is being utilized for any purpose by an Owner or a member of his/her family, guest, invitee or licensee, the Owner shall be responsible for supervising such use, unless otherwise agreed to among the Owner and such-members of his/her family, guest, invitee or licensee; and
(7) except in cases of emergency, no spot light or search light shall be shone over or across the pond.
Conservation Statement of Intent. It is the intention of the Declarant to encourage the conservation of resources by the use of the most efficient materials and equipment available. These include the use of energy conserving construction, low-flow toilets, water restrictors on showerheads, etc. This also includes encouraging sustainable methods, systems and materials usable on an ongoing basis that minimize resource depletion and that minimize harm to natural ecosystems.
(p) Use of Properties. The Buildings and each of the Units shall be used only for the designated purposes set forth herein. Any Unit Owner may delegate to tenants, in accordance with the Bylaws of the Association, his/her rights of possession, use and enjoyment of his Unit and the Common Elements.
1) Any commercial use of any Unit must adhere to the "Home Occupancy" regulations of the Town of Carrboro. Nothing in this provision is intended to prevent the Association from imposing restrictions greater than those of the Town of Carrboro.
2) Pacifica allows rentals of entire Units and rooms within a Unit, with the expectation that such rentals are not solely for the purpose of investment income. In the event that there is a concern that a particular rental (Unit or room) is in conflict with community standards, the community grievance procedure will be utilized to address and resolve the conflict.
3) In addition to the rental policies set forth herein, Owners of Units identified as Affordable Housing Units will also be subject to the terms of their ground lease with Orange Community Housing and Land Trust with regard to any rental / subletting policies.
4) All Owners renting a room or entire Unit in Pacifica must meet the following requirements:
i. Use a lease containing a clause that binds Lessee(s) to adhere to the By-Laws and all other provisions of this Declaration.
ii. File a copy of the lease with the Association. Financial amounts may be obscured.
iii. File Owner contact information with the Pacifica Community Board, when the Owner is not living in Pacifica during the rental period. Owners may designate a Member of the Association to handle their contact needs, and must file this information with the Pacifica Community Board.
iv. Find a resident of Pacifica Community who is willing to serve as a mentor for the tenant(s). A rental mentor will be designated by the Association. The mentor will orient the tenant(s) to the community. The Owner is ultimately responsible for the behavior of the tenant(s), and ensuring that the tenant(s) have received a thorough orientation.
(q) Parking. Parking at Pacifica is limited. Each Unit will have one (1) assigned parking space in reasonable proximity to the Unit. In accordance with Pacifica's stated principle of environmental sustainability, and its support of alternative transportation options, the Carrboro Board of Aldermen granted Pacifica a deviation from the parking requirements of Section 15-291(g) of the Carrboro Land Use Ordinance, finding that 73 spaces are sufficient to serve the entire Pacifica development per section 15-292 (a). Therefore, the right of Unit Owners to keep in excess of one vehicle per Unit on the Property will be restricted according to the provisions set forth in the Pacifica Parking Plan. The assignment of parking spaces for motor vehicles, boats, trailers, and special-use vehicles on the Property will be done in accordance with the provisions of the Pacifica Parking Plan. The provisions and restrictions regarding the construction and use of carports are stipulated in the Pacifica Parking Plan. No trailer, camper, boat, mobile home, or any vehicle other than conventional passenger automobiles or motorcycles or motor scooters shall be privileged to use the parking areas located on the Property without the express permission of the Association. The Board of Directors shall from time to time designate parking spaces assigned to the Owner of each Unit and reserved for the exclusive use of that Unit Owner.
(r) Affordable Housing Units. Units 191 and 193 are hereby designated as Affordable Housing Units, in conformance with Section 15-182.4 of the Carrboro Land Use Ordinance. With respect to these Affordable Housing Units, the following covenants shall encumber said Units for the term of 100 years:
1) Said Units shall be offered at a sales price which does not exceed two and one half times the amount equal to eighty percent of the annual median income level for a family of four in the Raleigh-Durham-Chapel Hill Metropolitan Statistical Area; or
2) If said Unit is offered for rent, said Unit shall be offered for rent at a monthly rate that does not exceed an amount equal the 12 percent of the monthly median income level for a family of four in the Raleigh-Durham-Chapel Hill Metropolitan Statistical Area.
(s) Prohibited Activities. The use of gasoline leaf blowers and electric bug zappers is specifically prohibited. Noise producing mechanical systems shall be shielded to minimize noise pollution according to the regulations of the Association. In addition, other noise producing activities or devices used in the Common Areas, including but not limited to, lawn mowers, power equipment, and loud shop use shall be restricted according to the regulations of the Association.
(t) Preservation of Natural Areas. In order for the natural, undeveloped areas of Pacifica to remain in their most natural condition, Owners agree to abide by the Open Space Management Plan as adopted by the Association and. attached hereto as Exhibit E.
(u) Environmental Control. In order to avoid placing hazardous or toxic substances under living quarters and in the ground, the application of persistent herbicides or pesticides is prohibited upon any Unit or Common Area with the following qualifications:
(1) Pesticides may be used as necessary for treatment of termites and other wood destroying insects. In that case, only local treatment, and not general foundation treatment is recommended unless such general foundation treatment is required by state or local building codes or by a participating financial institution.
(2) Any other application or use of pesticides or herbicides on any Unit or Common Area shall be done in accordance with the provisions set forth in the Open Space Management Plan (Exhibit E).
(v) Guns and Other Weapons. The residents of the Pacifica Community are working to create a safe and trusting community. Guns and other weapons are associated with great dangers. Therefore, any weapon brought onto the Property must meet Pacifica's substantial safety guidelines as set forth in the Procedures and Guidelines.
(w) Hunting. Regardless of governmentally designated seasons, there shall be no hunting on the Property. In recognition that many invertebrate species are important to the functioning of the natural environment, as food supplies for larger species, and for human enjoyment of the land, no bug lights shall be used for the purpose of attracting flying insects, nor shall any pesticide or insect traps be used which are not capable of being targeted at particular populations or species dangerous or annoying to Owners, their guests, or their tenants. However, wildlife clearly threatening or endangering Owners, their guests, or their tenants may be controlled in any practical manner.
(x) Fire Hazards. Because of close proximity and obvious fire hazard, readily flammable materials shall not be allowed to accumulate, nor be used for mulch or decoration, within three (3) feet of any flammable structure. Flammable liquids shall be kept only in approved containers. All containers for fires or sites for fires, including chimneys and grills shall be fitted with spark screens or other suitable means of fire control, except as follows in this Article.
There shall be no burning (including leaves and other vegetation) outside such proper containers unless a proper Town of Carrboro or other governmental agency permit is obtained first or the burning is done under the supervision of a professional crew or a fire department trained and knowledgeable in the method of outdoor burning. The burning of wood, charcoal, or gas in the operation of grills, stoves, fireplaces, or other containers which are specifically designed for the burning thereof is specifically allowed.
(y) Governmental Regulations. All state and local building, electrical, plumbing, and mechanical codes, health regulations, zoning restrictions, permit procedures and the like applicable to the Properties shall be observed. In the event of any conflict between any provision of such governmental code, regulation or restriction and any provision of this Declaration, the more restrictive provision shall apply.
9.1 Easements in Common. Declarant, the Association, and each Unit Owner shall have an easement in common with the other Owners of all other Units to use all pipes, wires, ducts, cables, conduits, public utility lines and other Common Elements located in any of the other Units and serving his/her Unit. Each Unit shall be subject to an easement in favor of the Association and the Owners of all other Units to use the pipes, lines, wires, ducts, cables, conduits, public utility lines and other Common Elements serving the Common Areas or other Units and located in such other Unit. The Board of Directors of the Association may grant rights of way across or easements for utility purposes for the benefit of the Property or adjacent tracts, including the right to install, lay, maintain, repair and replace water lines, pipes, sewer lines, gas mains, telephone wires and equipment and electrical conduits and wires, under, upon, or within any portion of the Common Elements. Each Unit Owner hereby grants the Board of Directors an irrevocable power of attorney to execute, acknowledge and record for and in the name of each Unit Owner such instruments as may be necessary to effectuate the foregoing or any other provisions of this Declaration.
9.2 Temporary Construction Access and Disturbance Easement. An easement over, through and to the Common Area is hereby reserved, conveyed and established in favor of the Declarant to be used for the purposes of ingress, egress, conduct of construction activity, storage of construction materials, the necessary disturbance of land for construction on any Unit, and the installation of driveways, sidewalks, underground drainage and utility conduits and hookups. This easement shall be used only as and when necessary to facilitate the construction of improvements at any time on a Unit by the Declarant as well as the extension of driveways, sidewalks, underground drainage and utility conduit and hookups to any dwelling structure situated on a Unit. In using and taking the benefit of said easement, Declarant, or its designate shall use their best efforts to minimize any soil or land disturbance activities, and shall restore the land to a condition which is graded smooth and in harmony with surrounding areas. Should Declarant or its designate fail to restore the disturbed land as required above, the Association may restore the land to the required condition and Declarant or its designate, as the case may be, shall indemnify the Association for the reasonable expense incurred in performing such restoration.
It is the intent of this Declaration to comply with the relevant provisions of Town of Carrboro and County of Orange requirements for Condominiums.
10.1 Affordable Housing Units. Two (2) Units are defined as Affordable Housing Units, and it is the further intent of the Declarant to comply with all Town of Carrboro ordinances and regulations concerning Affordable Housing Units. The two Units that are designated as Affordable Housing Units are identified as Units 191 and 193. These Units may only be sold or rented subject to the restrictions applicable to Affordable Housing Units set forth in Article 1, Section 1.2 of this Declaration, or in any ground leases or documents executed in connection with the sale or lease of such Units.
10.2 Size Limited Units. Four Units are Size Limited Units as described in Article 1, Section 1.19 of this Declaration, and it is the further intent of the Declarant to comply with all Town of Carrboro ordinances and regulations concerning Size Limited Units. The four Units that are designated as Size Limited Units are 171, 181, 191, and 193. No additions or interior renovations designed to increase the square footage of the Size Limited Units may be approved/completed within the first year following the issuance of the certificate of occupancy (CO) per Section 15-188(e) of the Carrboro Land Use Ordinance.
Insurance coverage on the Property shall be governed by the following provisions:
11.1 Ownership of Policies: All insurance policies insuring the Condominium Property shall be purchased by the Association for the benefit of the Association and the Unit Owners and their mortgagees as their interests may appear, and provisions shall be made for the issuance to the mortgagees of Unit Owners certificates of mortgagee endorsements. Unit Owners may, at their option, obtain insurance coverage at their own expense and upon their own personal property and for their personal liability and such other coverage as they may desire.
11.2 Coverage: The Buildings and all improvements upon the Property and all personal property included in the Common Elements shall be insured in an amount equal to the maximum insurable replacement value as determined annually by the Board of Directors with the assistance of the insurance company providing such coverage, and not less than eighty percent (80%) of the replacement cost. Such coverage shall provide protection against:
(a) loss or damage by fire and other hazards covered by a standard extended coverage endorsement, and
(b) such other risks as from time to time shall be customarily covered with respect to buildings similar in construction, location and use.
11.3 Public Liability Insurance. Public liability insurance shall be secured by the Association in such amount and with such coverage as shall be deemed necessary by the Board of Directors, including but not limited to an endorsement to cover liability of the Unit Owners as a group to a single Unit Owner. There shall also be obtained such other insurance coverage as the Board of Directors from time to time shall determine to be desirable and necessary.
11.4 Premiums: Premiums for insurance policies purchased by the Board of Directors shall be paid by the Association as a common expense, and may be assessed in proportion to risk.
11.5 Proceeds: All insurance policies purchased by the Board of Directors shall be for the benefit of the Association and the Unit Owners and their mortgagees as their interests may appear, and shall provide that all proceeds thereof shall be payable to the Board of Directors as insurance trustees under this Declaration. The sole duty of the Board of Directors as insurance trustees shall be to receive such proceeds as are paid and to hold the same in trust for the purposes elsewhere stated herein or stated in the Bylaws and for the benefit of the Unit Owners and their mortgagees in the following shares:
(a) Proceeds on account of damage to Common Elements shall be held as and in the nature of an undivided share for each Unit Owner, such share being the same as each Unit Owner's undivided interest in the Common Elements as set forth herein.
(b) Proceeds on account of damage to Units shall be held as follows:
(1) When the Building is to be restored - for the Owners of damaged Units in proportion to the cost of repairing the damage suffered by each Unit Owner, which cost shall be determined by the Board of Directors, such proceeds to be held in undivided shares.
(2) When the Buildings are not to be restored - an apportioned share for each Unit Owner of the damaged Units with such apportionment to be a ratio identical to the ratio which each Unit Owner's undivided interest in the Common Areas and facilities bears to the total of such Owners' interests.
(c) In the event a mortgagee endorsement has been issued as to a Unit, the share of the Unit Owner shall be held in trust for the mortgagee and the Unit Owner as their interests may appear.
Proceeds of insurance policies received by the Board of Directors as insurance trustees shall be distributed to or for the benefit of the beneficial Owners in the following manner:
(a) Expenses of the Trust: All expenses of the insurance trustees shall be first paid or provision made therefore.
(b) Reconstruction or Repair: If the damage for which the proceeds are paid is to be repaired or reconstructed, the remaining proceeds shall be paid to defray the cost thereof as provided by Article 13 hereof. Any proceeds remaining after defraying such cost shall be distributed to the beneficial Owners.
(c) Failure to Reconstruct or Repair: If it is determined as provided in Article 13 that the damage for which the proceeds are paid shall not be reconstructed or repaired, the remaining proceeds shall be distributed to the beneficial Owners thereof.
Except as hereinafter provided, damage to or destruction of the Buildings shall be promptly repaired and restored by the Board of Directors using the proceeds of insurance on the Buildings for that purpose and Unit Owners shall be liable for assessment of any deficiency; provided, however, if a Building is more than two-thirds destroyed by fire or other casualty and the Owners of the Units to which at least eighty percent (80%) of the votes in the Association are allocated resolve not to proceed with reconstruction or restoration, then in that event the Property shall either be (a) sold or otherwise transferred as provided in General Statutes Section 47C-2-118, or (b) deemed to be owned as tenants in common by the Unit Owners of the destroyed Building and subject to the provisions of General Statutes Section 47C-2-118 as the same exists at the date hereof or as amended hereafter. The determination of whether to sell the Property or to make the Property subject to the provisions of General Statutes Section 47C-2-118 shall be by affirmative vote of the Owners of the Units to which at least eighty percent (80%) of the votes in the Association are allocated.
Any reconstruction or repair shall be in accordance with the plans of the original Building(s), portions of which are attached hereto as Exhibit “__”; or if not, then according to the plans and specifications approved by the Board of Directors.
Article 13 Binding Nature. The covenants, conditions and restrictions contained in this Declaration, both negative and affirmative, and including but not limited to the covenants to pay dues and assessments, shall be construed to be covenants running with the land covered by this Declaration. Each Unit and the Owner of each Unit covered hereby, or any other person or legal entity claiming an interest in any Unit, and his/her heirs, executors, administrators, successors and assigns, shall be subject to and bound by all of such covenants, conditions and restrictions, regardless of when, in what manner, or from whom any Unit is acquired
14.1 Person to Receive Service of Process: Giles Blunden, whose address is 103 West Weaver Street, Orange County, Carrboro, North Carolina 27510, is hereby designated to receive service of process in any action which may be brought against or in relation to this Condominium, and he will serve until such time as his successor is designated by the Association
14.2 Reservation of Declarant Rights. For a period not exceeding 120 days after conveyance of seventy-five percent (75%) of all the Units (including Units which may be created pursuant to special Declarant rights) to Unit Owners other than a Declarant, two (2) years after Declarant has ceased to offer Units for sale in the ordinary course of business, two (2) years after any development right to add new Units was last exercised, or the date upon which Declarant voluntarily surrenders control of the Condominium to the Association, whichever should first occur, Declarant reserves the following special rights:
(a) The right to complete improvements indicated on plats and plans filed with the Declaration, as provided in General Statutes Section 47C-2-109.
(b) The right to exercise any development right reserved herein as provided in General Statutes Section 47C-2-105(a)(8) and Section 47C-2-110, including but not limited to the right to subdivide or convert a Unit previously created into additional Units, Common Elements, or both.
(c) The right to maintain sales offices, management offices, signs advertising the Condominium, and models in Units or on Common Elements as provided in General Statutes Section 47C-2-115, provided that no more than one Unit shall be used for such purposes at any one time.
(d) The right to use easements through the Common Elements for the purpose of making improvements within the Condominium as provided in General Statutes Section 47C-2-116.
(e) The right to appoint or remove any officer of the Association or any member of the Board of Directors, subject to the limitations herein contained and those set forth in General Statutes Section 47C-3-103 (d) and (e).
Duration and Amendment of Declaration.
(a) Duration. All covenants, restrictions and affirmative obligations set forth in this Declaration shall run with the land and shall be binding on all parties and persons claiming under them, subject to the exception of the 100 year term for the covenants encumbering the Affordable Housing Unit(s) as stated in 8.3(r) above, for a period of twenty-five (25) years from the date of recordation of this Declaration, after which time said covenants shall be extended automatically for successive periods of ten (10) years unless the condominium is terminated as provided in General Statutes Section 47C-2-118.
(b) Amendments. Except in cases of amendments that may be executed by a Declarant as set forth in General Statutes Section 47C-2-117 (a), this Declaration may only be amended by the vote of at least sixty-seven percent (67%) in common interest of all Unit Owners, cast in person or by proxy at a meeting duly held in accordance with the provisions of the Bylaws. In addition, Article 8, Sections 8.3(r) and 8.3(k) of this Declaration may not be amended without the consent of the Town of Carrboro. No such amendment shall be effective until recorded in the Office of the Register of Deeds in each County in which the Property is located.
14.4 Reservation of Variation. Declarant, and in turn the Association, reserve the right to grant a variance from and/or waiver of any violation of the restrictions set forth in this Article, except that the Association shall not have the right to grant a variance from and/or a waiver of any violation of those restrictions required to be set forth by Carrboro Town Ordinance or by North Carolina General Statute. Any request for such variance and/or waiver shall be made by the Owner requesting such in writing to the Declarant, Association, or the committee designated by the Declarant or Board of Directors. The Declarant, Association or its designate shall have the sole right, authority and complete discretion to grant or deny any such requests for any reason including aesthetics. In the event the Declarant, Association or its designate does not approve or deny such request within thirty (30) days from the date received, this right will be waived and any such request shall be deemed granted.
14.5 Invalidity / Severability. The invalidity of any provision of this Declaration shall not be deemed to impair or affect in any manner the validity or enforceability or effect of the remainder of this Declaration, and in such event, all of the other provisions of this Declaration shall continue in full force and effect as if such invalid provisions never had been included herein.
14.6 Waiver. No provision contained in this Declaration shall be deemed to have been abrogated or waived by reason of any failure to enforce the same irrespective of the number of violations or breaches which may occur.
14.7 Captions and Headings. The captions and headings herein are inserted only as a matter of convenience and for reference and such shall not be construed to define, limit or describe the scope of this Declaration nor the intent of any provision hereof.
14.8 Subordination. Nothing contained in this Declaration shall impair or defeat the lien of any mortgage or deed of trust made in good faith and for value, but the title to any Unit or any interest therein is subject to this Declaration.
14.9 Participation in Community. It is intended that all residents, including Owners and all persons leasing a Unit from an Owner, shall participate in the life of the community. All residents, as identified above, shall abide by the Resident Participation Guidelines as adopted by the Association in the Procedures and Guidelines.
14.10 Enforcement. In the event of a violation or breach of any of the restrictions contained in this Declaration, the Bylaws, or the Procedures and Guidelines adopted by the Board of Directors, by any Property Owner or guest, invitee, or agent of such Owner, by the Association, by the Declarant, or in the event of a violation or breach of any of the restrictions contained in Article 18.3 (k) of this Declaration only by the Town of Carrboro, the Unit Owners, or any of them, jointly or severally, shall have the right to proceed at law or in equity to compel compliance with the terms hereof or to prevent the violation or breach in any event and to recover reasonable attorney's fees associated with the enforcement of such action. In addition to the foregoing and in the event there shall have been any violation of these restrictions, Declarant shall have the right at any time until six (6) months from and after the date and time as of which all but one of the Units shall have been sold by Declarant to enter upon the property where such violation exists and summarily abate or remove the same at the expense of the offending Owner if after thirty (30) days' written notice of such violation it shall not have been corrected by the Owner. Any such entry and abatement or removal shall not be deemed a trespass. The failure to enforce any right, reservation or condition contained in this Declaration, however long continued, shall not be deemed a waiver of the right to do so hereafter as to the same breach or as to a breach occurring prior thereto or subsequent thereto, and shall not bar or affect its enforcement.
VA/FHA/FNMA Approval. In such cases where the following actions shall have any impact on the lenders' rights or privileges, the following actions will require the prior approval of the Veterans Administration, Federal Housing Administration, and the Federal National Mortgage Association: annexation of additional Properties, dedication of Common Area, mergers and consolidations and amendments of a material nature to this Declaration of Covenants, Conditions and Restrictions. In addition, any amendment of a material nature to this document shall require assent by eligible mortgage holders who represent at least 51% of the votes of Lot estates that are subject to mortgages held by eligible holders, subject to terms of implied approval set forth below in Section 14.13 of this Article. A change to any of the provisions governing the following would be considered material and include but are not limited to: voting rights; increases in assessments that raise the previously assessed amount by more than 25%, assessment liens, or the priority of assessment liens; reduction in reserves for maintenance, repair and replacement of Common Elements; responsibility for maintenance and repairs; reallocation of interests in the general or limited Common Elements, or rights to their use; redefinition of any Unit boundaries; convertibility of Units into Common Elements or vice versa; expansion or contraction of the Property, or the addition, annexation, or withdrawal of real property to or from the Property; hazard or fidelity insurance requirements; imposition of any restriction on the leasing of Units; imposition of any restriction on a Unit Owner's right to sell or transfer his or her Unit; restoration or repair of the project (after damage or partial condemnation) in a manner other than that specified in the documents.
14.12 Rights of Note Holders. Any institutional holder of a first mortgage on a Unit will, upon request, be entitled to (a) inspect the books and records of the Association during normal business hours, (b) receive an annual audited financial statement of the Association within ninety (90) days following the end of its fiscal year, and (c) receive written notice of all meetings of the Association and the right to designate a representation to attend all such meetings.
14.13 Implied Approval of Mortgage Holders. Required approval by any mortgage holder under this Article may be assumed when an eligible mortgage holder fails to submit a response to any written proposal for an amendment within 30 days after it receives proper notice of the proposal, provided the notice was delivered by certified or registered mail, with a "return receipt" requested.
14.14 Association Management. Any Management Agreement for the Association will be terminable by the Association for cause upon thirty (30) days written notice thereof and the terms of such agreement may not exceed one year, renewable by the parties for successive one-year periods; provided, however, that any such termination or failure to renew shall require the prior consent of fifty-one percent (51%) of all first mortgage noteholders on the Units. Each note holder shall be given one vote for each note it holds on each Unit which is secured by a first mortgage or first lien deed of trust. Fifty-one percent (51%) of those note holders entitled to votes must consent to such termination or failure to renew.
14.15 Termination of Legal Status. Any action to terminate the legal status of the Condominium after substantial destruction or condemnation occurs must be agreed upon by Unit Owners who represent at least 85% of the total allocated votes in the Association and by eligible mortgage holders who represent at least 51% of the votes of the Unit estates that are subject to mortgages held by the eligible holders. Termination of the legal status of the Condominium for reasons other than substantial destruction or condemnation of the Property must be agreed to by mortgage holders that represent at least 67% of the votes of the mortgaged Units.
14.16 Controlling Law. This Declaration and the Bylaws attached hereto shall be construed and controlled by and under the laws of the State of North Carolina.