Amendment to and Restatement of the by leader6

VIEWS: 2 PAGES: 10

									STATE OF NORTH CAROLINA
COUNTY OF HAYWOOD

                                                        References:   Deed Book 451, Page 59
                                                                      Deed Book 468, Page 2054
                                                                      Deed Book 501, Page 2025
                                                                      Deed Book 535, Page 650
                                                                      Deed Book 592, Page 789

                Amendments to the Declaration of Protective Covenants,
          Conditions, Restrictions and Assessments for The Hills of Cataloochee
  for Several Purposes Including Submitting this Planned Community to the Terms and
               Provisions of The North Carolina Planned Community Act


                                      WITNESSETH


        WHEREAS, N. C. Evergreen, Inc., a North Carolina Corporation (“Declarant”)
submitted all that property known as The Hills of Cataloochee and shown on various recorded
plats to a Declaration of Covenants, Conditions, and Assessments for Hills of Cataloochee
recorded in Deed Book 451, Page 59, Haywood County Register of Deeds on January 3, 1996
(“Declaration”); and

       WHEREAS, the Declarant in accordance with the Declaration and during the Declarant-
control period of the development recorded certain specific amendments to the Declaration as
follows: Deed Book 468, Page 2054; Deed Book 501, Page 2025; Deed Book 535, Page 650;
and Deed Book 592, Page 789; (collectively with the Declaration referred to hereinafter as
“Declaration as amended”); and

       WHEREAS, in accordance with the Declaration as amended and its Articles of
Incorporation, Hills of Cataloochee Property Owners Association, Inc., a North Carolina Non-
Profit Corporation ("Association"), is the duly organized and authorized Association of lot
owners at Hills of Cataloochee and ;

       WHEREAS, the North Carolina Planned Community Act (N.C.G.S.§§ 47F-1-101 et seq.)
(“Planned Community Act” or “Act”) was enacted as law by the General Assembly of North
Carolina and subsequently signed by the Governor, with an effective date of January 1, 1999;
and

        WHEREAS, in accordance with Section 47F-1-102(d) of the Planned Community Act,
any planned community created prior to the effective date of the Act (“existing community”) can
elect to make the provisions of the Act applicable to that planned community; and

       WHEREAS, the Planned Community Act further provides that an existing community by
affirmative vote, or written agreement signed by lot owners, of the lots to which at least sixty-
seven percent (67%) of the votes in the property owners association are allocated; and

       WHEREAS, the owners of lots at Hills of Cataloochee to which at least sixty-seven
percent (67%) of the votes in the Association are allocated have agreed to submit the Hills of
Cataloochee planned community to the provisions and terms of the Planned Community Act and
make other amendments to the Declaration in accordance with and as permitted by the Act and
by the Declaration.

      NOW, THEREFORE, the Declaration of Covenants, Conditions, Restrictions and
Assessments for Hills of Cataloochee are further amended as follows:

       1. The North Carolina Planned Community Act (N.C.G.S. §§ 47F-1-101 et seq.) shall
apply to and govern through its provisions the planned community known as Hills of
Cataloochee.

        2. The North Carolina Planned Community Act shall apply to and govern through its
provisions the Hills of Cataloochee Property Owners Association, Inc., which is the association
of lot owners.

       3. In accordance with Section 47F-3-102 of the Planned Community Act, the
Association shall have the following powers:

           (1)   To adopt and amend bylaws and rules and regulations;

           (2) To adopt and amend budgets for revenues, expenditures, and reserves and
           collect assessments for common expenses for lot owners;

           (3) To hire and discharge managing agents and other employees, agents, and
           independent contractors;

           (4) To institute, defend, or intervene in litigation or administrative proceedings on
           matters affecting the planned community;

           (5)   To make contracts and incur liabilities;

           (6) To regulate the use, maintenance, repair, replacement, and modification of
           common elements;

           (7)   To cause additional improvements to be made as part of the common elements;


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                   (8) To acquire, hold encumber, and convey in its own name any right, title, or
                   interest to real or personal property, provided that common elements may be
                   conveyed or subject to a security interest only pursuant to G.S. 47-E-3-112;

                   (9) To grant easements, leases, licenses, and concessions through or over the
                   common elements;

                   (10) To impose and receive any payments, fees, or charges for the use, rental, or
                   operation of common elements other than the limited common elements and for
                   services provided to lot owners;

                   (11) To impose reasonable charges for late payment of assessments and after notice
                   and an opportunity to be heard, suspend privileges or services provided by the
                   association (except rights of access to lots) during any period that assessments or
                   other amounts due and owing to the association remain unpaid of 30 days or longer;

                   (12) After notice and an opportunity to be heard, to impose reasonable fines or
                   suspend privileges or services provided by the association (except rights of access to
                   lots) for reasonable periods for violations of the declaration, bylaws, and rules and
                   regulations of the association;

                   (13) To impose reasonable charges in connection with the preparation and
                   recordation of documents, including, without limitation, amendments to the
                   declaration or statements of unpaid assessments;

                   (14) To provide for the indemnification of and maintain liability insurance for its
                   officers, executive board, directors, employees, and agents;

                   (15) To assign its right to future income, including the right to receive common
                   expense assessments;

                   (16) To exercise all other powers that may be exercised in this State by legal entities
                   of the same type as the association; and

                   (17) To exercise any other powers necessary and proper for the governance and
                   operation of the association.

             4. Article VII. of the Declaration as amended is now amended by adding the following
             Sections B. and C.:

                             B.        Enforcement Powers.

                                       (1)    Rules Making Authority. The Planned Community shall be used
                                       only for those uses and purposes set our in the Declaration and Bylaws.
                                       The Board of Directors shall have the authority to make, modify, repeal,
                                       and to enforce reasonable Rules and Regulations governing the conduct,
                                       use, and enjoyment of Lots and the common elements, so long as copies of

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                                       all such Rules and Regulations are furnished to all Owners; provided,
                                       however, any Rule or Regulation may be repealed by the affirmative vote
                                       or written consent of a majority of the total Association vote at an annual
                                       or special meeting. No rule or regulation shall be in conflict with either
                                       the Declaration or the Bylaws.

                                       (2)     Fining Powers. Pursuant to Sections 47F-3-102(12) and 47F-3-
                                       107.1 of the Planned Community Act, after notice and an opportunity to
                                       be heard, the Board shall have the power to impose fines in an amount not
                                       to exceed One Hundred Dollars ($100.00) per violation, such amount to be
                                       assessed per day for a continuing violation, for any violation of any duty
                                       imposed under the Planned Community Act, the Declaration, Bylaws, or
                                       Rules and Regulations duly adopted pursuant thereto against the Owners
                                       or occupants, which fine(s) shall constitute an assessment against the Lot
                                       in accordance with Section 47F-3-116(a) of the Planned Community Act,
                                       and become a personal obligation of the Lot Owner, and a lien upon the
                                       property; to suspend an Owner’s or occupant’s right to use the common
                                       elements; and to suspend an Owner’s right to vote or other privileges
                                       provided by the Association. In the event that any occupant of a Lot
                                       violates the Planned Community Act, Declaration, Bylaws, or Rules and
                                       Regulations and a fine is imposed, the fine shall first be assessed against
                                       such occupant; provided, however, if the fine is not paid by the occupant
                                       within the time period set by the Board, the Lot Owner shall pay the fine
                                       upon notice from the Association. The failure of the Board to enforce any
                                       provision of the Planned Community Act, Declaration, Bylaws, or Rules
                                       and Regulations, shall not be deemed a waiver of the right of the Board to
                                       do so thereafter.

                                       (3)     Abatement and Enjoinment of Violations. In addition to any
                                       other remedies provided for herein, the Association through the Board
                                       shall have the power to enter upon a lot or any portion of the common
                                       elements to abate or remove, using such force as may be reasonably
                                       necessary, any erection, thing, or condition which violates the Declaration,
                                       Bylaws, or Rules and Regulations. Unless an emergency situation exists,
                                       the Board shall give the violating Lot Owner ten (10) days written notice
                                       of its intent to exercise such abatement and an opportunity to be heard.
                                       All costs of abatement, including reasonable attorney’s fees actually
                                       incurred, shall be assessed against the violating Lot Owner and shall be
                                       collected as provided for herein for the collection of assessments.

                                              Additionally, the Association through the Board shall have the
                                       power to enjoin or to remedy by appropriate legal proceeding, either at
                                       law or in equity, the continuance of any violation of the Declaration,
                                       Bylaws, or Rules and Regulations. All costs of any such legal action
                                       including reasonable attorney’s fees actually incurred, shall be assessed


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                                       against the violating Lot Owner and shall be collected as provided for
                                       herein for the collection of assessments.

                             C. Enforcement Procedures. In accordance with Section 47F-3-107.1 of
                             the Planned Community Act, the Board of Directors or its designated
                             representatives or committee shall not impose a fine or a charge for damages
                             against a lot Owner unless and until the following procedure is followed.

                                       (1)     Demand. Written demand to cease and desist from an alleged
                                       violation of the Declaration, Bylaws, or Rules and Regulations shall be
                                       served upon the alleged violator specifying: (i) the alleged violation; (ii)
                                       the action required to abate the violation; and (iii) a time period, not less
                                       than ten (10) days, during which the violation may be abated without
                                       further sanctions if such violation is a continuing one or a statement that
                                       any further occurrence of the same violation may result in the imposition
                                       of sanction, it the violation is not continuing. The Board or its designee
                                       may demand immediate abatement in such circumstances which, in the
                                       Board’s sole determination, pose a danger or nuisance to safety or
                                       property.

                                       (2)     Notice. Within twelve (12) months of such demand as stated
                                       above, if the violation continues past the period allowed in the demand for
                                       abatement without penalty, or if the same rule is subsequently violated, the
                                       Board may impose a fine by giving the violator written notice. The notice
                                       shall state: (i) the nature of the alleged violation; (ii) the amount of the
                                       fine; (iii) that the violator will have the opportunity to be heard by
                                       requesting in writing within ten (10) days from the date of such notice, a
                                       hearing before the Board of Directors or its designated committee to
                                       contest the fine; (iv) that any statements, evidence and witnesses may be
                                       produced by the violator at the hearing; and (v) that all rights to be heard
                                       or to have a fine reconsidered are waived if a hearing is not requested
                                       within ten (10) days of the date of the notice.

                                       (3)     Hearing. If the hearing is requested, it shall be held before the
                                       Board of Directors or a committee designated by the Board; and the
                                       violator shall be given a reasonable opportunity to be heard. The Board or
                                       designated committee shall render its final decision regarding imposition
                                       of the fine no later than five (5) days after the hearing. The minutes of the
                                       meeting shall contain a written statement of the results of the hearing.

             5. Article IV. of the Declaration as amended is now amended by deleting it in its
             entirety and substituting a new Article IV as follows:

                   IV. Assessment and Collection of Common Expenses

                             A. Purpose of Assessments. The assessments for common expenses as
                             described in Section 47F-3-115 of the Planned Community Act and as otherwise
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                             provided for in the Documents shall be used for the general purposes of promoting
                             the recreation, health, safety, welfare, common benefit, and enjoyment of the
                             Owners and occupants of Lots in the Hills of Cataloochee Planned Community as
                             may be more specifically authorized from time to time by the Board.

                             B. Apportionment of Common Expenses. Except as set forth in this Article,
                             common expenses shall be assessed against all Lots equally, such that each lot
                             whether improved or unimproved shall pay the same assessment. Each Lot,
                             therefore, is responsible for its pro-rata share of the annual budget. So, if one
                             Owner owns, for example, two (2) Lots then that Owner shall pay two
                             assessments.

                             C.        Common Expenses Attributable to Fewer than All Lots.

                                       (1)    If a common expense is caused by the misconduct of a Lot Owner,
                                       the Association may assess that expense exclusively against that Lot Owner's
                                       Lot.

                                       (2)    If construction or heavy vehicles cause excessive damage to
                                       Association-maintained roads while such vehicles are performing work or
                                       construction on a particular lot or lots, then owner(s) of the lot or lots will
                                       be liable for the costs of repair and such costs will be an assessment
                                       against the owner(s). Included, but not limited to, will be any damages
                                       caused to well-heads by construction vehicles.

                                       (3)     Any common expense or portion thereof benefiting fewer than all
                                       of the lots shall be assessed exclusively against the lots benefited.

                                       (4)    The costs of insurance shall be assessed in proportion to risk and the
                                       costs of utilities shall be assessed in proportion to usage. The Board of
                                       Directors in its sole discretion may determine that the activities of one or
                                       more Lot Owners causes more risk and thus higher insurance premiums for
                                       the Association. In such event, the Lot Owners will be responsible for
                                       paying any increase in premium caused by their activities.

                                       (5)    Fees, charges, late charges, fines, all collection costs, including
                                       reasonable attorney's fees actually incurred and interest charged against a Lot
                                       Owner pursuant to the Planned Community Act, the Declaration, Bylaws
                                       and Rules and Regulations are enforceable as common expense assessments.

                             D.        Lien for Assessments.


                                       (1)     Any assessment levied against a Lot remaining unpaid for a period
                                       of thirty (30) days or longer shall constitute a lien on that Lot when filed
                                       of record in the Office of the Clerk of Court of Haywood County in the
                                       manner provided in Section 47F-3-116. The Association may foreclose
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                                       the lien in like manner as a mortgage on real estate under power of sale
                                       under Article 2A of Chapter 45 of the General Statutes. For purposes of
                                       foreclosing a lien, the Association is the "mortgagee" and "trustee", as
                                       defined by N.C. Gen. Stat. §45-21.1, of said lien with a power of sale. As
                                       the owner of the indebtedness secured by the lien, the Association, acting
                                       through the Board may, in its discretion, substitute a trustee in accordance
                                       with N.C. Gen. Stat. § 45-10, by the execution of a written instrument
                                       properly recorded pursuant to Chapter 47 of the North Carolina Statutes.
                                       Fees, charges, late charges, fines, collection costs, reasonable attorneys
                                       fees, and interest charged pursuant to Sections 47F-3-102(10), (11), and
                                       (12), 47F-3-107(d), 47F-3-107.1, and 47F-3-115, the Declaration, Bylaws,
                                       and Rules and Regulations, are enforceable as assessments under this
                                       Section.

                                       (2)    The lien under this Section is prior to all other liens and
                                       encumbrances on a Lot except (i) liens and encumbrances (specifically
                                       including, but not limited to, a mortgage or deed of trust on the Lot)
                                       recorded before the docketing of the claim of lien in the Office of the
                                       Clerk of Superior Court, and (ii) liens for real estate taxes and other
                                       governmental assessments or charges against the Lot. This subsection
                                       does not affect the priority of mechanics' or materialmen's liens.

                                       (3)     A lien for an unpaid assessment is extinguished unless proceedings
                                       to enforce the lien are instituted within three years after the docketing of the
                                       claim of lien in the Office of the Clerk of Superior Court; provided, that if an
                                       Owner of a Lot subject to a lien under this Section files a petition for relief
                                       under the United States Bankruptcy Code, the period of time for instituting
                                       proceedings to enforce the Association's lien shall be tolled until thirty days
                                       after the automatic stay of proceedings under Section 362 of the Bankruptcy
                                       Code is lifted.

                                       (4)      This Section does not prohibit separate collection actions to
                                       recover sums which are personal obligations of Owners and for which
                                       subsection (a) creates a lien or prohibit the Association taking a deed in
                                       lieu of foreclosure.

                                       (5)    A judgment, decree or order in any action brought under this
                                       Section shall include costs and reasonable attorney's fees for the prevailing
                                       party.

                                       (6)     Where the holder of a first mortgage or first deed of trust of record,
                                       or other purchaser of a Lot, obtains title to the Lot as a result of foreclosure
                                       of a first mortgage or first deed of trust, such purchaser, and its heirs,
                                       successors and assigns, shall not be liable for the assessments against such
                                       Lot which became due prior to acquisition of title to such Lot by such
                                       purchaser. Such unpaid assessments shall be deemed to be common

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                                       expenses collectible from all Lot Owners including such purchaser, and its
                                       heirs, successors and assigns.

                             E. Personal Liability of Lot Owners. The Owner of a Lot at the time any
                             common expense assessment or portion thereof is due and payable is personally
                             liable for such assessment, for any interest, if applicable, and for all costs of
                             collection including, but not limited to, reasonable attorney's fees actually
                             incurred. In addition to lien rights described in D. above, the Association has the
                             right to bring a separate collection action to enforce the personal liability of Lot
                             owners to pay assessments.

                                   The grantee(s) of a Lot shall be jointly and severally liable with the grantor
                             Owner for all unpaid assessments against the latter for his proportionate share of
                             the common expenses up to the time of the grant or conveyance, without prejudice
                             to the grantee's right to recover from the grantor the amounts paid by the grantee
                             therefor.

                                   Assessments shall be paid in such manner and on such dates as may be fixed
                             by the Board of Directors in its discretion.


                             F.        Special Assessments.

                                       (1) If the annual assessment proves inadequate for any year or in the
                                       event of an emergency, the Board may at any time levy a special
                                       assessment against all Owners.

                                       (2) The Board of Directors may levy special assessments for capital
                                       improvements upon the common elements and for such other matters as the
                                       Association shall determine; provided, however, prior to becoming effective
                                       any such special assessment shall be approved by the affirmative vote of a
                                       majority of all the lot owners at a special meeting of the Association duly
                                       called for that purpose.

                             G. Interest, Late Charges and Payments. In accordance with N.C. Gen. Stat.
                             47F-3-115(b), the Association hereby establishes that any past due common
                             expense assessment or installment thereof, past due special assessments, fines, or
                             other past due charges shall bear interest at 18% per annum.

                                   The Board shall set a late charge to be assessed against Lot Owners for late
                             payment of any common expense assessments or installment thereof, special
                             assessments, fines, or any other charges.

                                   Any payments received by the Association in the discharge of a Lot Owner's
                             obligation may be applied to the oldest balance due.


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                             H. Surplus Funds. Any surplus funds of the Association remaining after
                             payment of or provisions for common expenses and any prepayment shall be
                             retained in the general operating funds or long range fund of the Association in the
                             sole discretion of the Board, and no such surplus funds shall be paid to Lot Owners
                             nor shall such surplus funds be used as a credit to reduce future common expense
                             assessments.

             6. Article I of the Declaration as amended is now amended by adding the following
             sentence to Section J. as follows:

                                   The Association, however, shall be responsible as part of general road
                             maintenance for the maintenance of culverts running under common roads and for
                             the routine maintenance of ditches and swales in order to channel water properly
                             and to prevent erosion of common roads.

             7. Article I of the Declaration as amended is now amended by adding a new Section L. as
             follows:

                             L. Hunting is strictly prohibited in the Hills of Cataloochee planned community
                             including Lots, roads, and any common areas.

             8. Article I of the Declaration as amended is now amended by adding a new Section M. as
             follows:

                             M. There shall be no parking of commercial or of construction vehicles on Lots
                             or common roads, unless such vehicle is temporarily there for the purpose of
                             providing service or work to a residence.

             This _______ day of ____________________, 2008.

(Seal)                                                            Hills of Cataloochee Property Owners Association, Inc.


                                                                           by: ___________________________
                                                                                   President

                                                                        Attest: ____________________________
                                                                                     Secretary
NORTH CAROLINA
HAYWOOD COUNTY

       I ____________________________, Notary Public for said County and State, certify that
__________________________ personally came before me this day and acknowledged that (s)he is
Secretary of Hills of Cataloochee Property Owners Association, a corporation, and that by authority
duly given and as the act of the corporation, the foregoing instrument was signed in its name by its
President, sealed with its corporate seal, and attested by (her)himself as its Secretary.
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             Witness my hand and official seal, this the _______ day of _____________________, 2008.

                                                                           ______________________________
                                                                           Notary Public

             My commission expires _____________________.




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