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HomeMy WebLinkAboutSW8050426_CURRENT PERMIT_20230214 STORMWATER DIVISION CODING SHEET POST-CONSTRUCTION PERMITS PERMIT NO. SW8 0501.kl�lp DOC TYPE ® CURRENT PERMIT ❑ APPROVED PLANS ❑ HISTORICAL FILE ❑ COMPLIANCE EVALUATION INSPECTION DOC DATE 2 0`Z"3 0 21`4 YYYYMMDD 4 Kx.STA?i 4 ROY COOPER Governor - ELIZABETH,S,BISER Secretary °�^'"n0�• DOUGLAS R.ANSEL NORTH CAROLINA Interim Director Environmental Quality February 141, 2023 Arbor Creek Community Association,Inc. Attn: Robert Fulton, Board President 1628 Doctors Circle Wilmington,NC 28401 Subject: Permit Renewal Post-Construction Stormwater Management Permit No. SW8050426 Traemoor at Arbor Creek Phase 7 Brunswick County Dear Mr. Fulton: Effective August 1, 2013 the Post-Construction Stormwater Management Program has been transferred from the Division of Water Quality("DWQ")to the Division of Energy, Mineral and Land Resources("DEMLR"). All previous references to DWQ will remain in older permits issued prior to August 1, 2013 until they are modified. Please note that this permit will now reference DEMLR as the Division responsible for enforcement of the permit. On August 5,2009, the Governor signed Session Law 2009-406. This law impacted any development approval issued by the former Division of Water Quality under Article 21 of Chapter 143 of the General Statutes, which was current and valid at any point between January 1, 2008, and December 31, 2010. The law extended the effective period of any permit that was set to expire during this time frame to three (3)years from its current expiration date. On August 2, 2010,the Governor signed Session Law 2010-177, which granted an extra year for a total of four(4)years extension. The Division of Energy, Mineral and Land Resources received a complete 8-year Permit Renewal Application for the subject permit on December 19',2022. The Division is hereby notifying you that permit SW8050426 has been renewed, updated, and re-issued on February 14'2023, as attached. As requested, a copy of the current operation and maintenance agreement is also enclosed. Please be aware that the renewal and re-issuance of this stormwater permit does not imply that the site is currently in compliance. This permit shall be effective until April 29",2027, which includes all available extensions, and does not supersede any other agency permit that may be required. The project shall be subject to the conditions and limitations as specified therein. This permit does not impose new or increased stormwater control requirements; it clarifies the rules and requirements of this program to provide you with a better understanding of your obligations under this permit. Failure to comply with these requirements will result in future compliance problems. Please note that this permit is not transferable except after notice to and approval by the Division. If any parts, requirements,or limitations contained in this permit are unacceptable,you have the right to request an adjudicatory hearing by filing a written petition with the Office of Administrative Hearings(OAH). The written'petition must conform to Chapter 150B of the North Carolina General Statutes and must be filed with the OAH within thirty(30)days of receipt of this permit. You should contact the OAH with all questions regarding the filing fee(if a filing fee is required)and/or the details of the filing process at 6714 Mail Service Center, Raleigh,NC 27699-6714,or via telephone at 919-431-3000,or visit their website at www.NCOAH.com. Unless such demands are made this permit shall be final and binding. If you have any questions concerning this permit, please contact Aisia Freeman in the Wilmington Regional Office, at phone#(910) 796- 7318 or aisia.freemanancdenr._>ov. Sincerely, Brian Wrenn, Director Division of Energy, Mineral and Land Resources . Mm�J� North Carolina Department of Environmental Quality I Division of Energy,Mineral and Land Resources Wilmington Regional Office 1127 Cardinal Drive Extension I Wilmington,North Carolina 28405 aomH cwouun �' 910.796.7215 State Stormwater Perm it No. S W 8050426 Page 2 of 2 Enclosures: Attachment A—Designer's Certification Form Attachment C—Permitting History Copy of the Renewal Application Documents Copy of the current operation and maintenance agreement DES/af: %Stormwater\Permits&Projects\2005\050426 HD\2023 02 permit 050426 cc: Wilmington Regional Office Stormwater File 10 ® North Carolina Department of Environmental Quality I Division of Energy.Mineral and Land Resources ,/ Wilmington Regional Office 1 127 Cardinal Drive Extension I Wilmington,North Carolina 28405 Post Construction Stormwater Management Permit No. SW8050426 STATE OF NORTH CAROLINA DEPARTMENT OF ENVIRONMENTAL QUALITY DIVISION OF ENERGY, MINERAL AND LAND RESOURCES POST- CONSTRUCTION STORMWATER MANAGEMENT PERMIT HIGH DENSITY DEVELOPMENT In accordance with the provisions of Article 21 of Chapter 143, General Statutes of North Carolina as amended, and other applicable Laws, Rules, and Regulations PERMISSION IS HEREBY GRANTED TO Arbor Creek Community Association, Inc. Traemoor at Arbor Creek, Phase 7 Brunswick County FOR THE construction, operation and maintenance of a wet detention pond in compliance with the provisions of 15A NCAC 2H .1000 (hereafter referred to as the "stormwater rules') as outlined in the application, approved stormwater management plans, supplement, calculations, operation and maintenance agreement, recorded documents, specifications, and other supporting data (the "approved plans and specifications') as attached and/or on file with and approved by the Division of Energy, Mineral and Land Resources (the "Division" or "DEMLR"). The project shall be constructed, operated and maintained in accordance with these approved plans and specifications. The approved plans and specifications are incorporated by reference and are enforceable part of this permit. This permit shall be effective from the date of issuance until April 29'", 2027 and shall be subject to the following specified conditions and limitations. The permit issued shall continue in force and effect until the permittee files a request with the Division for a permit modification, transfer, renewal, or rescission; however, these actions do not stay any condition. The issuance of this permit does not prohibit the Director from reopening and modifying the permit, revoking and reissuing the permit, or terminating the permit for cause as allowed by the laws, rules, and regulations contained in Title 15A NCAC 2H.1000 and NCGS 143-215.1 et.al. I. DESIGN STANDARDS 1. This permit is effective only with respect to the nature and volume of stormwater described in the application and other supporting data. 2. This stormwater system has been approved for the management of stormwater runoff as described in Section 1.5 on page 3 of this permit. The subdivision is permitted for 52 lots, each allowed 4,200 square feet of built-upon area. 3. Approved plans and specifications for this project are incorporated by reference and are enforceable parts of the permit. 4. All stormwater collection and treatment systems must be located in either dedicated common areas or recorded easements. The final plats for the project will be recorded showing all such required easements, in accordance with the approved plans. Page 1 of 6 Post Construction Stormwater Management Permit No. SW8050426 5. The following design elements have been permitted for this wet detention pond stormwater facility, and must be provided in the system at all times. a. Drainage Area, acres: 13.52 Onsite, ft2: 588,931 Offsite, ft2: none b. Total Impervious Surfaces, ft2: 301,951 Lots at 4,200 ft2: 218,400 Roads/Parking, ft2: 74,451 Other, ft2: none Offsite, ft2: 9,100 C. Pond Depth, feet: 5.5 d. TSS removal efficiency: 90% e. Design Storm: 1.0" f. Permanent Pool Elevation, FMSL: 29.0 g. Permitted Surface Area @PP, ft2: 19,641 In. Permitted Storage Volume, ft3: 25,919 i. Storage Elevation, FMSL: 30.25 j. Controlling Orifice: 2.0"0 pipe k. Permanent Pool Volume, ft3 : 60,828 I. Forebay Volume, ft3: 13,158 m. Maximum Fountain Horsepower: 1/4 n. Receiving Stream / River Basin: Beaverdam Swamp / Cape Fear o. Stream Index Number: 18-88-9-1-(0.5) p. Classification of Water Body: "SC: Sw" It. SCHEDULE OF COMPLIANCE 2. The permittee is responsible for verifying that the proposed built-upon area for the entire lot, including driveways and sidewalks, does not exceed the allowable built-upon area. Once the lot transfer is complete, the built-upon area may not be revised without approval from the Division of Water Quality, and responsibility for meeting the built-upon area limit is transferred to the individual property owner. 3. If an Architectural Review Board or Committee is required to review plans for compliance with the BUA limit, the plans reviewed must include all proposed built-upon area. Any approvals given by the Board do not relieve the homeowner of the responsibility to maintain compliance with the permitted BUA limit. 6. The Director may notify the permittee when the permitted site does not meet one or more of the minimum requirements of the permit. Within the time frame specified in the notice, the permittee shall submit a written time schedule to the Director for modifying the site to meet minimum requirements. The permittee shall provide copies of revised plans and certification in writing to the Director that the changes have been made. 7. The stormwater management system shall be constructed in its entirety, vegetated and operational for its intended use prior to the construction of any built-upon surface. 8. During construction, erosion shall be kept to a minimum and any eroded areas of the system will be repaired immediately. 9. Upon completion of construction, prior to issuance of a Certificate of Occupancy, and prior to operation of this permitted facility, a certification must be received from an appropriate designer for the system installed certifying that the permitted facility has been installed in accordance with this permit, the approved plans and specifications, and other supporting documentation. Any deviations from the approved plans and specifications must be noted on the Certification. A modification may be required for those deviations. 10. If the stormwater system was used as an Erosion Control device, it must be restored to design condition prior to operation as a stormwater treatment device, and prior to occupancy of the facility. Page 2 of 6 Post Construction Stormwater Management Permit No. SW8050426 12. Prior to the sale of any lot, the following deed restrictions must be recorded: a. The following covenants are intended to ensure ongoing compliance with State Stormwater Management Permit Number SW8 050426, as issued by the Division of Water Quality under NCAC 2H.1000. b. The State of North Carolina is made a beneficiary of these covenants to the extent necessary to maintain compliance with the Stormwater Management Permit. C. These covenants are to run with the land and be binding on all persons and parties claiming under them. d. The covenants pertaining to stormwater may not be altered or rescinded without the express written consent of the State of North Carolina, Division of Water Quality. e. Alteration of the drainage as shown on the approved plans may not take place without the concurrence of the Division of Water Quality. f. The maximum built-upon area per lot is 4,200 square feet. This allotted amount includes any built-upon area constructed within the lot property boundaries, and that portion of the right-of-way between the front lot line and the edge of the pavement. Built upon area includes, but is not limited to, structures, asphalt, concrete, gravel, brick, stone, slate, coquina and parking areas, but does not include raised, open wood decking, or the water surface of swimming pools. g. Lots within CAMA's Area of Environmental Concern may be subject to a reduction in their allowable built-upon area due to CAMA regulations. h. All runoff on the lot must drain into the permitted system. This may be accomplished through providing roof drain gutters which drain to the street, grading the lot to drain toward the street, or grading perimeter swales and directing them into the pond or street. Lots that will naturally drain into the system are not required to provide these measures. i. Built-upon area in excess of the permitted amount will require a permit modification. 13. A copy of the recorded deed restrictions must be submitted to the Division within 30 days of the date of recording the plat, and prior to selling lots. The recorded copy must contain all of the statements above, the signature of the Permittee, the deed book number and page, and the stamp/signature of the Register of Deeds. 14. Decorative spray fountains are allowed in the pond, subject to the following criteria: a. The minimum permanent pool volume is 30,000 cubic feet. b. The fountain must draw its water from less than 2' below the permanent pool surface. C. Separated units, where the nozzle, pump and intake are connected by tubing, may be used only if they draw water from the surface in the deepest part of the pond. d. The fountain may not be placed into the forebay. e. The falling water from the fountain must be centered in the main pond, away from the shoreline. f. The maximum horsepower for a fountain in this pond is 1/4 horsepower. 15. Prior to transfer of the permit, the stormwater facilities will be inspected by DEQ personnel. The facility must be in compliance with all permit conditions. Any items not in compliance must be repaired or replaced to design condition prior to the transfer. Records of maintenance activities performed to date will be required. 16. The permittee shall at all times provide the operation and maintenance necessary to assure that all components of the permitted stormwater system function at the design condition. The approved Operation and Maintenance Plan must be followed in its entirety and maintenance must occur at the scheduled intervals including, but not limited to: a. Semiannual scheduled inspections (every 6 months). b. Sediment removal. C. Mowing and revegetation of side slopes. d. Immediate repair of eroded areas. e. Maintenance of side slopes in accordance with approved plans and specifications. f. Debris removal and unclogging of structures, orifice, catch basins and piping. g. Access to all components of the system must be available at all times. Page 3 of 6 Post Construction Stormwater Management Permit No. SW8050426 17. Records of maintenance activities must be kept and made available upon request to authorized personnel of the division. The records will indicate the date, activity, name of person performing the work and what actions were taken. 18. No person or entity, including the permittee, shall alter any component shown in the approved plans and specifications. Prior to the construction of any modification to the approved plans, the permittee shall submit to the Director, and shall have received approval for modified plans, specifications, and calculations including, but not limited to, those listed below. For changes to the project or SCM that impact the certifications, a new or updated certification(s), as applicable, will be required and a copy must be submitted to the appropriate DEQ regional office upon completion of the modification. a. Any modification to the approved plans and specifications, regardless of size including the SCM(s). BUA, details, etc. b. Redesign or addition to the approved amount of BUA or to the drainage area. C. Further development, subdivision, acquisition, lease or sale of any, all or part of the project and/or property area as reported in the approved plans and specifications. d. Altering, modifying, removing, relocating, redirecting, regrading, or resizing of any component of the approved SCM(s), the stormwater collection system and/or vegetative conveyance shown on the approved plan. e. The construction of any allocated future BUA. f. Adding the option to use permeable pavement or#57 stone within the lots as a permeable surface. The request may require a proposed amendment to the deed restrictions and protective covenants for the subdivision to be submitted and recorded. g. The construction of any permeable pavement, #57 stone area, public trails, or landscaping material to be considered a permeable surface that were not included in the approved plans and specifications. h. Other modifications as determined by the Director. 19. The facilities shall be constructed, operated and maintained in accordance with the provisions of this permit, the approved plans and specifications, and the supporting documents attached to this permit and on file with the Division. 20. Built upon area includes, but is not limited to, structures, asphalt, concrete, gravel, brick, stone, slate, coquina and parking areas, but does not include raised, open wood decking, or the water surface of swimming pools. III. GENERAL CONDITIONS 1. CORRECTIVE ACTIONS REQUIRED. If the facilities fail to perform satisfactorily, the permittee shall take immediate corrective actions. This includes actions required by this Division and the stormwater rules such as the construction of additional or replacement on-site stormwater systems. These additional or replacement measures shall receive a permit from the Division prior to construction. 2. PERMIT RENEWAL. A permit renewal request must be submitted at least 180 days prior to the expiration date of this permit. The renewal request must include the appropriate application, documentation and the processing fee as outlined in Title 15A NCAC 02H.1045(3). 3. CHANGES TO THE PROJECT NAME, PERMITTEE NAME OR CONTACT INFORMATION. The permittee shall submit a completed Permit Information Update Application Form to the Division within 30 days to making any one of these changes. Page 4 of 6 Post Construction Stormwater Management Permit No. SW8050426 4. TRANSFER. This permit is not transferable to any person or entity except after notice to and approval by the Director. Neither the sale of the project and/or property, in whole or in part, nor the conveyance of common area to a third party constitutes an approved transfer of the permit. a. TRANSFER REQUEST. The transfer request must include the appropriate application, documentation and the processing fee as outlined in 15A NCAC 02H.1045(2). This request must be submitted within 90 days of the permit holder meeting one or more of the following: i. A natural person who is deceased, ii. A partnership, limited liability corporation, corporation, or any other business association that has been dissolved; iii. A person or entity who has been lawfully and finally divested of title to the property on which the permitted activity is occurring or will occur through foreclosure, bankruptcy, or other legal proceeding. iv. A person or entity who has sold the property, in whole or in part, on which the permitted activity is occurring or will occur, except in the case of an individual residential lot sale that is made subject to the recorded deed restrictions and protective covenants, V. The assignment of declarant rights to another individual or entity; vi. The sale or conveyance of the common areas to a Homeowner's or Property Owner's Association, subject to the requirements of NCGS 143-214.7(c2), b. TRANSFER INSPECTION. Prior to transfer of the permit, a file review and site inspection will be conducted by Division personnel to ensure the permit conditions have been met and that the project and the on-site stormwater system complies with the permit conditions. Records of maintenance activities performed to date may be requested. Projects not in compliance with the permit will not be transferred until all permit and/or general statute conditions are met. 5. COMPLIANCE. The permittee is responsible for compliance with the terms and conditions of this permit until the Division approves the transfer request. a. APPROVED PLANS AND SPECIFICATIONS. A copy of this permit, approved plans, application, supplement, operation and maintenance agreement, all applicable recorded documents, and specifications shall be maintained on file by the permittee at all times. b. DIVISION ACCESS. The permittee grants Division Staff permission to enter the property during normal business hours to inspect all components of the permitted project. c. ENFORCEMENT. Any individual or entity found to be in noncompliance with the provisions of a stormwater management permit or the requirements of the stormwater rules is subject to enforcement procedures as set forth in NCGS 143 Article 21. d. ANNUAL CERTIFICATION. The permittee shall electronically submit to the Division an annual certification completed by either the permittee or their designee confirming the projects conformance with permit conditions e. OBTAINING COMPLIANCE. The Director may notify the permittee when the permitted site does not meet one or more of the minimum requirements of the permit. Within the time frame specified in the notice, the permittee shall submit a written time schedule to the Director for modifying the site to meet minimum requirements. The permittee shall provide copies of modified plans and certification in writing to the Director that the changes have been made. f. OTHER PERMITS. The issuance of this permit does not preclude the permittee from complying with and obtaining any other permits or approvals that are required for this development to take place, as required by any statutes, rules, regulations, or ordinances, which may be imposed by any other Local, State or Federal government agency having jurisdiction. Any activities undertaken at this site that cause a water quality violation or undertaken prior to receipt of the necessary permits or approvals to do so are considered violations of NCGS 143-215.1, and subject to enforcement procedures pursuant to NCGS 143-215.6. Page 5 of 6 Post Construction Stormwater Management Permit No. SW8050426 Permit renewed, updated, and reissued this the 14'" day of February 2023. NORTH CCAAROOLIINN1A nENVIRONMENTAL MANAGEMENT COMMISSION Douglas R. Ansel, Irtterim Director Division of Energy, Mineral and Land Resources By Authority of the Environmental Management Commission Page 6 of 6 Post Construction Stormwater Management Permit No. SW8050426 Attachment A Traemoor at Arbor Creek, Phase 7 Page 1 of 2 Stormwater Permit No. SW8 050426 Brunswick County Designer's Certification I, as a duly registered in the State of North Carolina, having been authorized to observe (periodically/weekly/full time) the construction of the project, (Project) for (Project Owner) hereby state that, to the best of my abilities, due care and diligence was used in the observation of the project construction such that the construction was observed to be built within substantial compliance and intent of the approved plans and specifications. The checklist of items on page 2 of this form are a part of this Certification. Noted deviations from approved plans and specifications: SEAL Signature Registration Number Date Page 1 of 2 Post Construction Stormwater Management Permit No. SW8050426 Certification Requirements: Page 2 of 2 1. The drainage area to the system contains approximately the permitted acreage. 2. The drainage area to the system contains no more than the permitted amount of built-upon area. 3. All the built-upon area associated with the project is graded such that the runoff drains to the system. 4. All roof drains are located such that the runoff is directed into the system. 5. The outlet/bypass structure elevations are per the approved plan. 6. The outlet structure is located per the approved plans. 7. Trash rack is provided on the outlet/bypass structure. 8. All slopes are grassed with permanent vegetation. 9. Vegetated slopes are no steeper than 3:1. 10. The inlets are located per the approved plans and do not cause short-circuiting of the system. 11. The permitted amounts of surface area and/or volume have been provided. 12. Required drawdown devices are correctly sized per the approved plans. 13. All required design depths are provided. 14. All required parts of the system are provided, such as a vegetated shelf, a forebay, and the vegetated filter. 15. The required dimensions of the system are provided, per the approved plan. cc: NCDENR-DEQ Regional Office i Page 2 of 2 Attachment C-Permitting History Traemoor at Arbor Creek Phase 7 Permit No.SW8 050426 Approval Permit Action BIMS Description of the Changes Modified Plan Sheets Date Version High Density Subdivision Project-construction,operation and maintenance of a wet detention pond in compliance 429/2005 Original 1.0 with the provisions of 15A NCAC 2H .1000. The C1-C4,C4A,C9-10 Approval subdivision is permitted for 52 lots,each allowed 4,200 square feet of built-upon area. 10/4/2013 Minor Modification 1.1 Ownership Transfer 2/14/2023 Renewal 1 2.0 April29th,2027 Page 1 of 1 DEMLR USE ONLY Date Re iv d Fee Paid Permit Number od �2 � I(o5, �a S o ���Ia-( NC DEQ Division of Energy, Mineral and Land Resources, STATE STORMWATER: PERMIT RENEWAL APPLICATION FORM In accordance with 15A NCAC 2H.1045(3). the current permit holder shall renew their high density permit 180 days prior to its expiration. Renewed permits are valid for a period'of 8 years per Session Law 2011-398 (SB 781) Section 60.(c). This application form is for permit renewals only. A. PROJECT INFORMATION 1. State Stormwater Permit Number: SW8050426 2. Project name: Arbor Creek Community Association 3. Project street address Traemoor at Arbor Creek Phase 7 City: Southport County: Brunswick ZIP 28461 4. What, if any, changes have been made to the project as permitted? n/a If the project has changed from the original approved plans, please complete SWU-101 for a Major Modification or Minor Modification Application form available at: https:Hdeg.nc.gov/abouUdivisions/energy- mineral-la nd-resources/energy-mineral-land-rules/stormwater-pros ram/post-construction. B. PERMITTEE INFORMATION If changes to the permittee or project name have been made, please complete either the Permit Update form or the Permit Transfer form available at:https://deg.nc.gov/about/divisions/energy-mineral-land- resources/energy-mineral-land-rules/stormwater-program/post-construction. State Stormwater Permits do not automatically transfer with the sale of the property. 1. Current Permit Holder's Company Name/Organization: Arbor Creek Community Association INC 2. Signing Official's Name: Robert Fulton 3. Signing Official's Title: Board President 4. Mailing Address: c/o Cepco 1628 Doctors Circle City: Wilmington State: NC ZIP 28401 5. Street Address: 1628 Doctors Circle City: Wilmington State: NC ZIP 28401 6. Phone: (910) 395-1500 Email: rnorris(a)cepco-nc.com DEC 19 ZOZZ BY: Stormwater Permit Renewal Form Page 1 of 3 May 11,2018 C. SUBMITTAL REQUIREMENTS Submit the application package to the appropriate DEMLR Regiorial Office (Coastal, SA Waters) or DEMLR Central Office (Urbanizing Areas Ph 2, USMP, Non-Coastal HQW/ORW). Only applications packages that include all required items listed below will be accepted and reviewed. Initial each item below to indicate that the required information is provided in the application package: RF 1. A permit application processing fee of$505.00 payable to NCDEQ. RF 2. One original signed hard copy and one electronic copy of this completed form. The signing official named on this application to represent the current permittee must meet one of the following: a. Corporation—a principle executive officer of at least the level of vice-president; b. Limited Liability Company (LLC)—a manager or company official as those terms are defined ,in G.S. 57D "North Carolina Limited Liability Company Act;" c. Public Entity—a principal executive officer, ranking official, or other duly authorized employee; d. Partnership or limited partnership—the general partner; e. Sole proprietor; or f. Letter of authorization.signed by one of the signatories noted in a—e above authorizing the signature of another entity. 3. One hard copy and one electronic copy of recorded documents required by the original permit that have not yet been received by DEMLR, including: deed restrictions, protective covenants, condominium/planned community declaration and easements. If the project has been built, include documentation that the maximum BUA per lot or maximum total BUA has not been exceeded. If the project has not been built, include a signed agreement that the final recorded deed restrictions and protective covenants will be submitted at a later date. RIP 4. O&M Agreements, Please select one: ❑ I have a copy of the current recorded O&M Agreement for all SCMs, and I will continue to keep this on file with the permit; or ® I do not,have a copy of the current recorded O&M Agreement for all SCMs and am , requesting a copy be sent to me. I agree to keep this on file with the permit. n/a 5. Designer Certifications, Please select one: ❑ A copy of the certification(s) confirming that the project was built in accordance with the approved plans have been previously provided to the Division; or ❑ A copy of the certification(s) confirming that the project was built in accordance with the approved plans are enclosed; or ❑ The project has not yet been built. n/a 6. [IF APPLICABLE] If the project has been built, one original hard copy and one electronic copy of a signed, sealed, and dated letter from a licensed professional stating that the SCMs have been inspected, and that they have been built and maintained in accordance with the permit. n/a 7. [IF APPLICABLE]When the permittee is a corporation or a limited liability corporation (LLC): Provide one hard copy and one electronic copy of documentation from the NC Secretary of State, or other official documentation, which supports the titles and positions held by the persons listed in Section C.2 per 15A NCAC 2H. 1043(3)(b). httos://www.sosnc.gov/online services/search/by title/ Business Registration �i- I In DEC 19 2022 Stormwater Permit Renewal Application Form Page 2 of 3 May 11, 2018 D. PERMITTEE'SCERTIFICATION AI, veaF - ' the person legally responsible for the permit, certify that I have a copy of the Permit and O&M Agreement on site (or I will obtain a copy and it will be kept on site), that I am responsible for the performance of the maintenance procedures, and the site has been and will be maintained according to the O&M Agreement and approved plans. I agree to notify DEMLR of any problems with the SCMs or built-upon area and to submit the proper forms to modify or transfer the permit prior to any changes to the project, SCMs, or ownership. All information provided on this permit renewal application is, to the best of my knowledge, co ct and co plete. Signature: v Date: 1 ' '7 — 2Z Z 2 NOTARIZATION:I, JimuCQ p /, a Notary Public for the State of ar County of V✓r(/17$[✓!t;A , do hereby certify that � 1 r personally appeared before me this the gt* day of Mloomber 20-1)., and acknowledge the due execution of the forgoing instrument. Witness my hand and official seal, (Notary Seal) Palmer F Cameron NOTARY PUBLIC Brunswick County ^w,/A North Carolina Notary Signature: ,1 W l f / MY Commission Expires Sep am(g g02 My commission expires Erlo luDEC 19 BY:--- Stormwater Permit Renewal Application Form Page 3 of 3 May 11, 2018 Permit No. (YtOD 6S011-26 (to be provided by DWQ) State of North Carolina Department of Environment and Natural Resources Division of Water Quality STORMWATER MANAGEMENT PERMIT APPLICATION FORM WET DETENTION BASIN SUPPLEMENT This form may be photocopied for use as an original DWQ Stormwater Management Plan Review: A complete stormwater management plan submittal includes an application form, a wet detention basin supplement for each basin, design calculations, and plans and specifications showing all basin and outlet structure details. I. PROJECT INFORMATION / S7 Project Name: I G►1 mr (, Arbor C�rex_� r A Contact Person: Ck0-1 IkGYS fit CtiwbS Phone Number: (2SZ) 355 —2000 For projects with multiple basins, specify which basin this worksheet applies to: elevations Basin Bottom Elevation Z 3•S ft. (floor of the basin) Permanent Pool Elevation 29• ft. (elevation of the orifice) Temporary Pool Elevation 30. z$� ft. (elevation of the discharge structure overflow) areas Permanent Pool Surface Area q� i/`F( sq. ft. (water surface area at the orifice elevation) Drainage Area (�J• r7 2 ac. (on-site and off-site drainage to the basin) Impervious Area ac. (on-site and off-site drainage to the basin) volumes Permanent Pool Volume O $Z cu. ft. (combined volume of main basin and forebay) i Temporary Pool Volum j cu. ft. (volume detained above the permanent pool) Forebay Volume I P306 cu. ft. (approximately 20%of total volume) Other parameters SA/DAI 3.Z 0 (surface area to drainage area ratio from DWQ table) Diameter of Orifice 2 in. (2 to 5 day temporary pool draw-down required) Design Rainfall 1 - 00 in. Design TSS Removal 2 -10 % (minimum 85%required) Form SWU-102 Rev 3.99 Page 1 of 4 Footnotes: I When using the Division SA/DA tables,the correct SA/DA ratio for permanent pool sizing should be computed based upon the actual impervious%and permanent pool depth. Linear interpolation should be employed to determine the correct value for non- standard table entries. 2 In the 20 coastal counties,the requirement for a vegetative filter may be waived if the wet detention basin is designed to provide 90%TSS removal. The NCDENR BMP manual provides design tables for both 85%TSS removal and 90%TSS removal. II. REQUIRED ITEMS CHECKLIST The following checklist outlines design requirements per the Stormwater Best Management Practices Manual (N.C. Department of Environment, Health and Natural Resources, February 1999) and Administrative Code Section: 15 A NCAC 2H .1008. Initial in the space provided to indicate the following design requirements have been met and supporting documentation is attached. If the applicant has designated an agent in the Stomiwater Management Permit Application Form, the agent may initial below. If a requirement has not been met, attach justification. Applicants Initials �JVV7 a. The permanent pool depth is between 3 and 6 feet (required minimum of 3 feet). b. The forebay volume is approximately equal to 20% of the basin volume. c. The temporary pool controls runoff from the design storm event. 3�_' d. The temporary pool draws down in 2 to 5 days. e. If required, a 30-foot vegetative filter is provided at the outlet (include non-erosive flow calculations) f. The basin length to width ratio is greater than 3:1. g. The basin side slopes above the permanent pool are no steeper than 3:1. h. A submerged and vegetated perimeter shelf with a slope of 6:1 or less (show detail). i. Vegetative cover above the permanent pool elevation is specified. j. A trash rack or similar device is provided for both the overflow and orifice. k. A recorded drainage easement is provided for each basin including access to nearest right- (� of-way. J1u/ 1. If the basin is used for sediment and erosion control during construction, clean out of the basin is specified prior to use as a wet detention basin. m. A mechanism is specified which will drain the basin for maintenance or an emergency. III. WET DETENTION BASIN OPERATION AND MAINTENANCE AGREEMENT The wet detention basin system is defined as the wet detention basin,pretreatment including forebays and the vegetated filter if one is provided. This system (check one) 0 does es not incorporate a vegetated filter at the outlet. This system (check one) 0 does 9does not incorporate pretreatment other than a forebay. Form SWU-102 Rev 3.99 Page 2 of 4 Maintenance activities shall be performed as follows: 1. After every significant runoff producing rainfall event and at least monthly: a. Inspect the wet detention basin system for sediment accumulation, erosion, trash accumulation, vegetated cover, and general condition. b. Check and clear the orifice of any obstructions such that drawdown of the temporary pool occurs within 2 to 5 days as designed. 2. Repair eroded areas immediately,re-seed as necessary to maintain good vegetative cover, mow vegetative cover to maintain a maximum height of six inches, and remove trash as needed. 3. Inspect and repair the collection system (i.e. catch basins, piping, swales, riprap, etc.) quarterly to maintain proper functioning. 4. Remove accumulated sediment from the wet detention basin system semi-annually or when depth is reduced to 75% of the original design depth (see diagram below). Removed sediment shall be disposed of in an appropriate manner and shall be handled in a manner that will not adversely impact water quality (i.e. stockpiling near a wet detention basin or stream, etc.). The measuring device used to determine the sediment elevation shall be such that it will give an accurate depth reading and not readily penetrate into accumulated sediments. When the permanent pool depth reads feet in the main pond, the sediment shall be removed. When the permanent pool depth reads�3 feet in the forebay, the sediment shall be removed. BASIN DIAGRAM ill in the blanks) 0 Permanent Pool Elevation Z`hO Sediment Re oval El. 75 0 _______________ Sediment Removal Elevation2188 75% Bottom Etc ation2_$.O % --------------------------------------- -- o -- Bottom Elevation 23.5 25%n FOREBAY MAIN POND 5. Remove cattails and other indigenous wetland plants when they cover 50% of the basin surface. These plants shall be encouraged to grow along the vegetated shelf and forebay berm. 6. If the basin must be drained for an emergency or to perform maintenance, the flushing of sediment through the emergency drain shall be minimized to the maximum extent practical. Form SWU-102 Rev 3.99 Page 3 of 7. All components of the wet detention basin system shall be maintained in good working order. I acknowledge and agree by my signature below that I am responsible for the performance of the seven maintenance procedures listed above. I agree to notify DWQ of any problems with the system or prior to any changes to the system or responsible party.. Print name: CkAl ffu'r5 MC-ICo✓hn5 Title: V. tom. — COMMtLNlt4 'LL4- elOQOVJ � Address: 200 EASE , - .1�40AJ f�- (j�l- _ 6,-Aenit.l1(e iVC ZmSg Phone: 2 - 0000 Signa re: Date: S— Note: The legally responsible party should not be a homeowners association unless more than 50%of the lots have been sold and a resident of the subdivision has been named the president. I, 44a-t 9, „ LCUI6 , , a Notary Public for the State of noN-k a,-b h x, County of n/p w 144 n 01/1(Z. , do hereby certify that n'l a ev,..-�,S personally appeared before me this c. f y- day of &A , AooS , and acknowledge the due execution of the forgoing wet detention basin maintenance requirements. Witness my hand and official seal, "011O411Uhl ••••• 10 /gypTARy ti .Z PUBL\rj SEAL My commission expires'4 �'+��`+- �t 000 Form SWU-102 Rev 3.99 Page 4 of 4 State Storn ter Management Systems Permit No. SW8 050426 Traemoor at Arbor Creek, Phase 7 Page 1 of 2 Stormwater Permit No. SW8 050426 Brunswick County Designer's Certification I, JAM l P,• , as a duly registered to<I I iAt�tq, in the State of North Carolina, having been authorized to observe periodical weekly/full time) the construction of the project, TLA,Mb0 12-- 6 — AMO L C.�>� Pkl- 7 (Project) for 'NU1 Ci-, 9AL kOtAFS OF WILMI►�CT LL, Project Owner) hereby state that, to the best of my abilities, due care and diligence was used in the observation of the project construction such that the construction was observed to be built within substantial compliance and intent of the approved plans and specifications. The checklist of items on page 2 of this form are a part of this Certification. Noted deviations from approved plans and specifications: +ouHuu QjH C R0 Signature 028852 r Registration Uber 2.�d$52 '� i Date R + ECEIVE SEP 9 6 SM I State Storm 'er Management Systems Permit No. SW8 050426 Certification Requirements: Page 2 of 2 ✓ 1. The drainage area to the system contains approximately the permitted acreage. V/2. The drainage area to the system contains no more than the permitted w1.1��- amount of built-upon area. ALL L PTS AM aor yeT BWLT- upt A'; 1 V'WEJt e) '6LlLT 4vQ LIikkT6 Aat taCLUDED I� pEtD ZESTpe"".o s 3. All the built-upon area associated with the project is graded such that the cw runoff drains to th system. A4.L L,vllS A¢� aoT ICT . IAIL'T Lao.1 j we\im? 1_1}IS DIKtIloA Is PRovtoEO- oa QLA�16 Ailp t� Von ILESTRtcrloa5 ✓. 4. All roof drains are located such that the runoff is directed into the system WitiW—Faw SAME, AS tUrMp t4 *3 A6rnIE 5. The outlet/bypass structure elevations are per the approved plan. 6. The outlet structure is located per the approved plans. V__�7. Trash rack is provided on the outlet/bypass structure. _1�8. All slopes are grassed with permanent vegetation. ✓9. Vegetated slopes are no steeper than 3:1. ✓10. The inlets are located per the approved plans and do not cause short- circuiting of the system. I✓11. The permitted amounts of surface area and/or volume have been provided. ✓12. Required drawdown devices are correctly sized per the approved plans. ✓13. All required design depths are provided. ✓14. All required parts of the system are provided, such as a vegetated shelf, a forebay, and the vegetated filter. 15. The required dimensions of the system are provided, per the approved plan. cc: NCDENR-DWQ Regional Office Delaney Aycock, Brunswick County Building Inspections I RECEI ♦ ED APR 2 7 2005 DW �r PROJ# SQ AQSU¢Z(o (Top portion for recording purposes) DECLARATION OF COVENANTS, CONDITIONS, AND RESTRICTIONS FOR THE TRAEMOOR AT ARBOR CREEK COMMUNITY THIS DECLARATION is made on the date hereinafter set forth by Bill Clark Homes of Wilmington, LLC, a North Carolina limited liability company (hereinafter referred to as 'Declarant"): WITNESS TO: WHEREAS, Declarant is the owner of certain real property located in Brunswick County, North Carolina, which is more particularly described on Exhibit "A" attached hereto and made a part hereof by reference (hereinafter sometimes referred to as the "Property"). WHEREAS, Declarant desires to create on such property an exclusive residential community of single-family homes to be known as Traemoor at Arbor Creek (hereinafter sometimes referred to as "Subdivision"); WHEREAS, Declarant desires to provide for the maintenance and upkeep of the common area within the Subdivision and to provide for enforcement of covenants and restrictions applicable to the Subdivision, and, to that end, desires to subject all of the property within the Subdivision to the covenants, conditions, restrictions, easements, charges and liens hereinafter set forth, each and all of which is and are for the benefit of said property and each owner thereof, WHEREAS; Declarant has deemed it advisable to create an organization to own, maintain and administer the Common Area (as hereinafter defined), to administer and enforce covenants and restrictions applicable to the Subdivision, and to collect and disburse the assessments and charges hereinafter created, and Declarant has, or will, therefore incorporated under North Carolina law as a non-profit corporation, the TRAEMOOR COMMUNITY ASSOCIATION, INC., for the purpose of exercising the aforesaid functions; NOW, THEREFORE, Declarant declares that the Properties and such additions thereto as may hereafter be made pursuant to Article II hereof, is and shall be owned, held, transferred, sold, conveyed, used and occupied subject to the covenants, conditions, restrictions, easements, charges and liens set forth in this Declaration, all of which shall run with the real property and be -1- binding on all parties owning any right, title or interest in said real property or any part thereof, their heirs, personal representatives, successors and assigns, and shall inure to the benefit of each owner thereof. ARTICLE I DEFINITIONS Section 1. "Association" shall mean and refer to the TRAEMOOR COMMUNITY ASSOCIATION, INC., a North Carolina non-profit corporation, its successors and assigns. Section 2. "Builder" shall mean and refer to any persons, firms or entities to whom or which Declarant conveys one or more Lots within the Properties for the purpose of constructing a Dwelling thereon. Section 3. "Common Area" shall mean and refer to any and all real property, together with any improvements thereon, shown on any recorded subdivision plat of the Properties, with the exception of any Lots, as said term is defined in this Declaration. All roads within the development will be private and will be maintained by the Traemoor Community Association, Inc. Except as otherwise provided in this Declaration, the Common Area shall be maintained by the Association or its successors in interest unless dedicated to public use as set forth herein. Section 4. "Declarant" shall mean and refer to Bill Clark Homes of Wilmington, LLC. It shall also mean and refer to any person, company or entity to whom or which Declarant shall assign or delegate the rights and obligations of Declarant by an assignment of Declarant's rights recorded in the applicable public registry for Brunswick County, North Carolina. Section 5. "Lot" shall mean and refer to any plot of land, with delineated boundary lines, shown on any recorded subdivision plat of the Properties, with the exception of any Common Area owned in fee by the Association and any public street rights-of-way shown on such recorded plat. In the event that any Lot is increased or decreased in size by recombination or resubdivision through recordation of new subdivision plats, any newly-platted Lot shall thereafter constitute a Lot. Section 6. "Member" shall mean and refer to every person or entity who or which holds membership in the Association. Section 7. "Owner" shall mean and refer to the record owner, whether one or more persons or entities, of fee simple title to any Lot which is a part of the Properties, including contract sellers, but excluding those having an interest in a Lot solely as security for the performance of an obligation. Section 8. "Properties" shall mean and refer to the property described in Exhibit A to this Declaration and any additional property annexed pursuant to Article II of this Declaration. Section 9. "Subassociation" shall mean and refer to any homeowners association formed for the purpose of owning and maintaining real property and improvements thereon reserved for the exclusive use and benefit of Owners of Lots or Units within a specific phase or section of the Properties. -2- Section 10. "Unit' or "Dwelling" shall mean and refer to any building or portion thereof within the Properties which is designated and intended for use and occupancy as a residence by a single family, whether by the Owner of such Unit or by tenants or lessees of such Owner. ARTICLE II PROPERTY SUBJECT TO THIS DECLARATION AND WITHIN THE JURISDICTION OF THE TRAEMOOR AT ARBOR CREEK COMMUNITY Section 1. This section has been intentionally omitted. Section 2. Existing Property. The real property which is and shall be held, transferred, sold, conveyed, used and occupied subject to this Declaration as of the date of recording hereof, which is within the jurisdiction of the Association, and which is described on Exhibit A attached hereto. Section 3. Annexation of Additional Property. At any time prior to December 31, 2025, additional land within the property described in Exhibit B attached hereto and made a part hereof (the "Exhibit B Property") may be annexed by the Declarant without the consent of the Members and therefore become subject to this Declaration by the recording by Declarant of a plat showing such property to be annexed and of a supplementary declaration extending the operation and effect of this Declaration to the property to be annexed. Furthermore, at any time Declarant owns any Lot within the Properties, additional land not within the Exhibit B Property may be annexed by the Declarant without the consent of the Members and therefore become subject to this Declaration by the recording by Declarant of a plat showing such property to be annexed and of a supplementary declaration extending the operation and effect of this Declaration to the property to be annexed. Any property annexed must be contiguous to property already subject to this Declaration. Any property annexed pursuant to this subsection may be annexed and subjected to this Declaration as one parcel or as several parcels at different times. The addition of such property pursuant to this Section may increase the cumulative number of Lots within the Properties and, therefore, may alter the relative maximum voting strength of the various types of Members. A supplementary declaration may contain such complementary additions to and modifications of the covenants and restrictions contained in this Declaration, including, without limitation, different voting rights and different annual and special assessments for the Lots or Units so annexed, as Declarant, in its sole discretion, may deem necessary or appropriate to reflect the different character or use of the property added. In no event, however, shall any supplementary declaration revoke, modify or add to the covenants and restrictions established by this Declaration so as to materially and adversely affect any portion of the Properties already subject to this Declaration. A supplementary declaration annexing additional property need only be executed by the Declarant and, if applicable, by the owner of the property being annexed, and shall not require the joinder or consent of the Association or any of its Members. Nothing contained in this Article shall be construed to obligate or require Declarant to make any additions to the Properties. Section 4. Conveyance of Common Area in Annexed Property. Promptly upon request of Declarant, the owner of the annexed property shall convey any or all Common Area located -3- within the newly annexed property to the Association or, if requested by the Declarant, to the Declarant. Title to such Common Area shall be conveyed in the same manner as set forth in Section 3 of Article IV of this Declaration. Section 5. Meraer. Additional property may also be made subject to this Declaration by merger or consolidation of the Association with another non-profit corporation formed for the same or similar purposes. The surviving or consolidated association shall administer the covenants and restrictions established by this Declaration within the Properties and the covenants and restrictions established upon property owned by the other association as one scheme. No such merger or consolidation shall cause any revocation, change or addition to this Declaration. Section 6. Effect of Addition of Propertv. Except by amendment of this Declaration as provided in Section 3 of Article XII hereof, no addition of property, whether by annexation, merger or consolidation, shall revoke or modify any provision of this Declaration as to the Properties already subject hereto or diminish the rights of the Owners of Lots and Units within the Properties, except for the dilution of voting strength that occurs as a result of inclusion of additional Members of the Association. Section 7. Withdrawal of Propertv. Declarant reserves the right to amend this Declaration so long as it has a right to annex Additional Property pursuant to this Article for the purpose of removing any portion of the Properties then owned by Declarant or the Association from the coverage of this Declaration, to the extent originally included in error or as a result of any changes whatsoever in the plans for the Subdivision, provided such withdrawal is not unequivocally contrary to the overall, uniform scheme of development for the Subdivision. Section 8. Good Faith Lender's Clause. Any violation of these covenants, conditions or restrictions shall not affect any lien or deed of trust of record held in good faith, upon any Lot or commercial Unit, which liens may be enforced in due course, subject to the terms of this Declaration. ARTICLE III MEMBERSHIP AND VOTING RIGHTS Section 1. Membership. Every Owner of a Lot which is subject to assessment by the Association shall be a Member of the Association. Membership shall be appurtenant to and may not be separated from ownership of any Lot which is subject to assessment. Section 2. Voting Rights. The voting rights of the membership shall be appurtenant to the ownership of the Lots and may not be separated from ownership of any Lot. There shall be three classes of Lots with respect to voting rights: (a) Class A. Class A Lots shall be those Lots upon which single-family dwellings are built, or to be built. All Lots in the Subdivision shall be Class A Lots except those Lots which are Class B Lots as the same are hereinafter defined. Ownership of a Class A Lot shall entitle the Owner of such Lot to one (1) vote. When more than one person owns an interest (other than a leasehold or security interest) in any Lot, all such persons shall be Members and the voting rights appurtenant to their Lot shall be exercised as they, among themselves, determine; but fractional voting shall not be allowed, and in no event shall more than one vote be cast with respect to any Class A Lot. -4- (b) Class B Lots. Class B Lots shall be all Lots owned by Declarant or a Builder and which have not been converted to Class A Lots as set forth below. Declarant and each Builder shall each be entitled to nine (9) votes for each Class B Lot it owns. The Class B Lots shall cease to exist and shall be converted to Class A Lots upon the earlier of the following to occur: (i) when Declarant no longer owns any Lots or Units within the Properties; (ii) upon written waiver of Class B membership by the Declarant and/or Builder; or (iii) December 31, 2025. When the Class B Lots cease to exist and are converted to Class A Lots, Declarant and Builder shall have the same voting rights as other Owners of Class A Lots. (c) Declarant's Voting Rights. Until the Class B Lots cease to exist, as provided above, Declarant shall be vested with the sole voting rights of the Association on all matters (including election and removal of directors and officers of the Association), except such matters as to which the Declaration, the Articles of Incorporation, or the Bylaws of the Association specifically require a vote of the Class A Members. Section 3. Leased Units. Notwithstanding any other provision of this Declaration or the Bylaws of the Association, the vote as expressed by the Owners of Lots or Units which are leased (or rented to or otherwise occupied by persons) other than the Owner shall not be entitled to any weight greater than forty-nine (49)percent on any matter pending before the Association. ARTICLE IV PROPERTY RIGHTS Section 1. Owners' Easements of Enjoyment and Access. Except as limited by the provisions of this Section 1 and by the rules and regulations adopted by the Board of Directors of the Association, every Owner shall have a right and easement of enjoyment in, use of and access to, from, and over the Common Area, which right and easement shall be appurtenant to and shall pass with title to every Lot, subject to: (a) the right of the Association to charge reasonable admission and other fees for the use of any recreational facilities situated or constructed on the Common Area and to limit the use of such facilities to Owners who occupy a residence on the Properties and to their families, tenants and guests, as provided in Section 2 of this Article IV. (b) the right of the Association to suspend the voting rights of an Owner for any period during which any assessment against his Lot remains unpaid, or for a period not to exceed sixty (60) days for any infraction of the published rules and regulations of the Association. (c) the right of the Association to dedicate, sell or transfer all or any part of the Common Area to any public or quasi-public agency, authority or utility for such purposes and subject to such conditions as may be agreed upon by the Members. After Class B Lots cease to exist, no such dedication or transfer shall be effective unless the Members entitled to at least 80% of the votes of the entire membership of the Association and at least three-fourths (3/4) of the votes appurtenant to each Class of Lots agree to such dedication, sale or transfer and signify their agreement by a signed document recorded in the applicable public registry for Brunswick County, North Carolina. Nothing herein shall be deemed to prohibit the Board of Directors of the Association, without consent of the Members, from granting easements over and across the Common Area to any public agency, authority or utility for the installation and maintenance of sewerage, utility (including cable television) or drainage facilities when, in the opinion of the -5- Board, such easements are necessary for the convenient use and enjoyment of properties within the Subdivision. Notwithstanding anything herein to the contrary, the Common Area shall be preserved for the perpetual benefit of the owners of Lots within the Subdivision and shall not be conveyed except to a governmental entity or another non-profit corporation organized for similar purposes. (d) the right of the Association, to borrow money and, after Class B Lots cease to exist, with the assent of Members' entitled to at least 80% of the votes of the entire membership of the Association and at least two-thirds (2/3) of the votes appurtenant to each Class of Lots, mortgage, pledge, deed in trust, or hypothecate any or all of its real or personal property as security for money borrowed or debts incurred, provided that the rights of any such lender or mortgagee shall be subordinate to the property rights of the Members and the Association as set forth herein. (e) the right of the Association to exchange all or part of the Common Area for other property and consideration of like value and utility, provided, however, that, after Class B Lots cease to exist, any such dedication shall require the assent of the Members as set forth in subparagraph (c) above, and further provided that, if the Board of Directors of the Association determines, in its sole discretion, that such exchange is necessary to cure an encroachment or setback violation on any Lot, the Board may effect such exchange without the consent of or approval by the Members. (f) the right of the Association to open the Common Area and, in particular, the recreational facilities constructed thereon, for use by non-members of the Association. (g) the right of the Association to expand or add to the Common Area and to improve, maintain and operate the Common Area. (h) the right of the Association to adopt, promulgate and enforce rules and regulations concerning the use of the Common Area. (i) the right of the Association to otherwise deal with the Common Area as provided in the Articles of Incorporation and Bylaws of the Association. Section 2. Delegation of Use. (a) Familv. The right and easement of enjoyment and access granted to every Owner by Section 1 of this Article may be exercised by members of the Owner's family who occupy the residence of the Owner within the Properties as their principal residence in Brunswick County, North Carolina. (b) Tenants: Contract Purchasers. The right and easement of enjoyment and access granted to every Owner by Section I of this Article may be delegated by such Owner to his tenants or contract purchasers who occupy a residence within the Properties, or a portion of said residence, as their principal residence in Brunswick County, North Carolina. (c) Guests. The right and easement of enjoyment and access granted to every Owner by Section 1 of this Article may be delegated to guests of such Owners, tenants or contract purchasers, subject to such rules and regulations as may be established by the Board of Directors. -6- (d) Suspension of Rights. The rights of any delegate of an Owner shall be suspended by, upon and during suspension of such Owner's rights as provided in Section 7 of Article XII of this Declaration. Section 3. Conveyance of Common Area To The Association. No later than the time Declarant no longer exercises voting control over the Association as provided in Article III hereof, Declarant shall convey, and the Association shall accept, fee simple title to all Common Area (except Common Area easements) within the Properties, and shall reserve for or grant to the Association all Common Area easements, all subject to such easements, reservations, conditions and restrictions as then may be of record, and the Association shall accept all such conveyances, grants and reservations, provided, however, that so long as Declarant owns any Lots within the Properties, Declarant reserves an easement over and across any Common Area deeded to the Association for the purpose of constructing and maintaining any improvements on the Common Area as it deems necessary or advisable, provided that any such improvements must comply with the requirements of the appropriate governmental authority. Any improvements placed on the Common Area by Declarant shall become the property of the Association upon completion of such improvements. Section 4. Regulation and Maintenance of Common Area and Common Area Easements. It is the intent of the Declarant that the Common Area be preserved for the perpetual benefit of the Owners. (a) Regulation of Common Area. The Association may adopt and promulgate rules and regulations governing the use of the Common Area by Owners and their family, guests and invitees. No Owner or other permitted user shall use the Common Area or any portion thereof in violation of the rules and regulations contained in this Declaration or subsequently adopted by the Association. Without limiting the generality of the foregoing, no Owner or tenant, guest or invitee of an Owner shall, without the specific prior written consent of the Association: (i) damage or waste the Common Area or improvements thereon or remove any trees or vegetation therefrom: (ii) erect any gate, fence, structure or other improvement or thing on the Common Area; (iii) place any garbage receptacle, trash or debris on Common Area; (iv) fill or excavate any part of the Common Area; (v) landscape or plant vegetation on Common Area; or (vi) use the Common Area or any part thereof in a manner inconsistent with or in any way interfering with the rights of other Owners. (b) Rights and Responsibilities of the Lot Owners as to Common Area Easements. Each Owner of a Lot upon which a Common Area easement lies shall pay all property taxes and other assessments levied against his Lot, including that portion of such tax or assessment as is attributable to such Common Area easement. (c) Rights and Responsibilities of the Association as to Common Area. The Association shall have the right and obligation to ensure that the Common Area is preserved for the perpetual benefit of the Owners, and, to that end, shall: (i) maintain the Common Area in its natural or improved state, as appropriate, and keep it free of impediments to its use by the Owners, subject to the provisions of this Declaration; (ii) procure and maintain adequate liability insurance covering the Association and its Members, Directors and officers, against any loss or damage suffered by any person, including the Owner of the Lot upon which Common Area lies, resulting -7- from use of the Common Area, and adequate hazard insurance covering the real and personal property owned in fee by the Association; and (iv) pay all property taxes and other assessments levied against all Common Area owned in fee by the Association. (d) Declarant's and Association's Right of Entry. The Declarant and the Association and the employees, agents, contractors and subcontractors of each, shall have a non-exclusive right and easement at all times to enter upon any portion of a Lot reserved or designated as a Common Area easement for the purposes of: (i) installing and maintaining subdivision entrance signs, features, fencing and landscaping; and (ii) making such improvements to the Common Area; and (iii) maintaining the Common Area easement in its natural or improved state. ARTICLE V COVENANT FOR MAINTENANCE ASSESSMENTS Section 1. Creation of the Lien and Personal Obligation of Assessments. Each Owner of a Class A Lot, by acceptance of a deed therefor, whether or not it shall be so expressed in such deed, is deemed to covenant and agree to pay to the Association annual assessments and special assessments, such assessments to be established and collected as hereinafter provided. All assessments which are unpaid when due, together with interest and late charges set forth in Section 9 of this Article V and all costs of collection, including reasonable attorney's fees, shall be a charge against and, a continuing lien upon the Lot against which such assessment is made. Each such assessment or charge, together with interest and costs of collection, including reasonable attorneys' fees, shall also be the personal or corporate obligation of the person(s), firms) or corporation(s) owning such Lot at the time when the assessment fell due, but such personal obligation shall not be imposed upon such Owner's successors in title unless expressly assumed by them. Although unpaid assessments and charges are not the personal obligation of such Owner's successors in title unless expressly assumed by them, the unpaid assessments and charges shall continue to be a lien upon the Lot against which the assessment or charge was made. It is the intent of the Declarant that any monetary fines imposed against an Owner pursuant to the Bylaws of the Association or Section 7 of Article XII of this Declaration shall constitute a lien against the Lot of such Owner to the same extent as if such fine were an assessment against such Lot. Section 2. Purposes of Assessments. The assessments levied by the Association shall be used exclusively to promote the recreation, health, safety and welfare of the residents of the Subdivision and, in particular, for: (i) acquisition, improvement and maintenance of properties, services and facilities related to the use and enjoyment of the Common Area; (ii) repair and reconstruction of the streets and roadways within the subdivision and other improvements on the Common Area, including, without limitation, the cost of repair, replacement and additions thereto and the cost of labor, equipment, materials, management and supervision thereof; (iii) payment of taxes and public assessments levied against the Common Area owned by the Association in fee; (iv) procurement and maintenance of insurance in accordance with the Section 4(c) of Article IV of this Declaration; (v) employment of attorneys, accountants and other persons or firms to represent the Association when necessary; (vi) payment of principal and interest on funds borrowed for Association purposes; (viii) such other needs as may arise; (ix) -8- payment for the maintenance and operation of stormwater facilities and street lights; and (x) lawn care for Class A lots, including maintenance of the irrigation system to irrigate those lawns. Section 3. Annual Assessments. (a) Maximum Annual Assessment. As provided in Section 2(a) of Article III hereof, Declarant shall establish the Maximum Annual Assessment and initial annual assessment for Class A Lots; thereafter, the terms "Maximum Annual Assessment", annual assessment, and special assessment shall mean the Maximum, annual and special assessments applicable to Class A Lots. Until December 31, 2006, the Maximum Annual Assessment shall be $ for each Class A Lot. From and after January 1, 2007, the Maximum Annual Assessment may be increased by the Board of Directors effective January 1 of each year without a vote of the Members, but subject to the limitation that the percentage of any such increase shall not exceed 10% of the Maximum Annual Assessment for the previous year unless such increase is approved as set forth in Section 3(b), below. From and after January 1, 2007, the Maximum Annual Assessment for Class A Lots may be increased without limitation if such increase is approved by a majority of the votes cast, in person or by proxy, at a meeting duly called for that purpose. (b) Annual Assessments: Ratification of Budgets. Notwithstanding the 10% increase restriction contained in (a) above, for so long as a Class B Lot exists, the Board of Directors, in its sole discretion, shall have the authority to adopt an annual budget. After Class B Lots cease to exist, the Board of Directors shall adopt a proposed budget (including the proposed annual assessment for each Class of Lots) at least annually. Within 30 days after adoption of the proposed budget, the Board of Directors shall send a copy of the proposed budget and shall give written notice to the Members of a meeting of the Members to consider ratification of the budget, such meeting to be held not sooner than 10 days nor more than 60 days after the mailing of such notice. Such meeting may, but need not be, combined with the annual meeting of the Members. Except as required by Section 7 below, there shall be no requirement that a quorum be present in order to vote on ratification of the budget (although a quorum must be present to vote on other matters). The budget shall be deemed ratified unless at that meeting Members having a majority of the votes of the entire membership vote to reject the budget. Notwithstanding the foregoing, if the budget provides for annual assessments not greater than 10% larger than the assessment in effect for the immediately preceding year, such budget shall be deemed ratified unless Members having at least 80% of the votes of the entire membership vote to reject the budget. If the proposed budget is rejected, the budget last ratified by the Members shall be continued until such time as the Members ratify a subsequent budget proposed by the Board. Any annual assessment ratified by the Members shall continue thereafter from year to year as the annual assessment until changed by the Board and ratified by the Members as set forth herein. Section 4. Special Assessments. In addition to the annual assessments authorized above, the Association may levy, in any assessment year, special assessments for the purpose of defraying, in whole or in part, the cost of any construction, repair or replacement of a capital improvement on the Common Area, including fixtures and personal property related thereto, for -9- repayment of indebtedness and interest thereon, or for any other purpose, provided that any such assessment shall have the same assent of the Members as provided in Section 3(b) of this Article. Section 5. Assessment Rate: Collection Period. Except as provided in Section 6 of this Article V, the annual and special assessments shall be fixed at a uniform rate for all Lots within each subclass of Lots and may be collected on a yearly, semi-annually, quarterly or monthly basis, as determined by the Board of Directors. Section 6. Declarant's and Builder's Assessments. Notwithstanding any other provision of this Declaration, the Articles of Incorporation or the Bylaws of the Association, the Declarant and Builder shall not be obligated for, nor subject to, any annual or special assessment for any Lot or other property that it owns within the Properties, provided, however, that the Builder shall be responsible for paying for each Lot owned by the Builder which contains a Dwelling for which a certificate of occupancy has been issued, an assessment equal to twenty-five percent (25%) of the annual assessment in effect for Class A Lots, as applicable, as the same may change from time to time, computed on a 365 day year and prorated for the number of days from the date of the issuance of the certificate of occupancy until the sale of such Lot. Upon sale of such Lot by Builder to any other person or entity, such Lot shall be assessed at Class A rate, commencing on the day the title to such Lot is transferred to such third party, by prorating the assessment from the date title transfers. Notwithstanding any other provision of this Declaration, a Lot owned by the Builder which contains a Dwelling occupied as a residence (but not as a model or sales center) shall be assessed at the rate applicable to Class A. Section 7. Notice and Quorum for any Action Authorized Under Sections 3(a) and 4. After Class B lots cease to exist, written notice of any meeting called for the purpose of taking any action authorized under Section 3(a) or 4 shall be sent to all Members not less than fifteen (15) days nor more than thirty (30) days prior to the meeting. At such meeting, the presence of Members, in person or by proxy, entitled to cast sixty (60%) percent of the votes of the entire membership shall constitute a quorum. If the required quorum is not present, another meeting may be called subject to the same notice requirements, and if called for a date not later than sixty (60) days after the date of the first meeting, the required quorum at the subsequent meeting shall be one-half('/2) of the required quorum at the preceding meeting. Section 8. Date of Commencement of Annual Assessments: Amount of Initial and Subsequent Annual Assessments: Certificate of Payment. Unless a different commencement date is set by the Board of Directors, the annual assessments provided for herein shall commence as to all Lots in any phase on the first day of the month following the conveyance of a Lot or Unit within that phase to an Owner other than the Declarant or a Builder. Unless a lower amount is set by the Board of Directors and ratified by the Members, the first annual assessment shall be the "Maximum Annual Assessment" set forth in Section 3 of this Article and shall be prorated according to the number of months remaining in the calendar year. At least thirty(30) days before January 1 of each year, the Board of Directors shall fix the amount of the annual assessment against each Lot. At least fifteen (15) days before January 1 of each year, the Board of Directors shall send written notice of such assessment to every Owner subject thereto. The due dates for the payment of annual and special assessments shall be established by the Board of Directors. -10- The Association shall, upon demand, and for such reasonable charge as the Board of Directors may determine, furnish a certificate signed by an officer of the Association setting forth whether the assessments on a specified Lot have been paid. If such certificate states that an assessment has been paid, such certificate shall be conclusive evidence of payment. Section 9. Working Capital Assessments. At the time of sale of each lot by the Declaring or a Builder to a third party, there shall be due and payable at closing a capitalization fee equal to twice the annual assessment then in effect at time of closing, payable by the purchaser to the Association. Such amounts paid for working capital are not to be considered as advance payment of the Annual or any other assessments. Declarant reserves the right to amend this section including the amount at any time. Section 9. Effect of Nonpayment of Assessments: Remedies. An assessment not paid within ten (10) days after the due date shall incur such late charge as the Board of Directors may from time to time establish, and, if not paid within thirty (30) days after the due date, shall also bear interest from the due date at the rate of eighteen percent (18%) per annum or the highest rate allowed by law, whichever is less. The Association may bring an action at law or in equity against the Owner personally obligated to pay the same and/or foreclose the lien against the Lot for which such assessment is due. Interest, late payment charges, reasonable attorneys' fees, and the costs 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 by abandonment of his Lot. Section 10. Subordination of the Lien to Mortgages. The liens provided for herein shall be subordinate to the lien of any first mortgage or first mortgage on a Lot. Sale or transfer of a Lot shall not affect any assessment lien; however, the sale or transfer of a Lot pursuant to foreclosure of a first mortgage, or any proceeding in lieu of foreclosure thereof, shall extinguish the lien of any assessment which became due prior to the date of such conveyance. No such sale or transfer shall relieve such Lot from liability for any assessment thereafter becoming due or from the lien thereof, but the liens provided for herein shall continue to be subordinate to the lien of any first mortgage. Section 11. Exempt Property. All property dedicated to and accepted by a public authority and all property owned by a charitable or non-profit organization exempt from taxation by the laws of the State of North Carolina shall be exempt from the assessments created herein. Notwithstanding the foregoing, no land or improvements devoted to dwelling use shall be exempt from said assessments. ARTICLE VI RIGHTS OF LENDERS Section 1. Books and Records. Any owner or holder of a first mortgage on any Lot, or its agent, shall have the right, during normal business hours, to examine copies of this Declaration, -11- the Articles of Incorporation, Bylaws, and the books and records of the Association and, upon written request to the Association, to receive a copy of the financial statement for the immediately preceding fiscal year. Section 2. Notice to Lenders. After Class B Lots cease to exist and upon written request to the Association, the owner or holder of a first mortgage on any Lot shall be entitled to timely written notice of: (a) Any 60-day delinquency in the payment of assessments or charges owed by the Owner of the Lot securing its loan. (b) A lapse, cancellation, or material modification of any insurance policy or fidelity bond maintained by the Association. (c) Any proposed action that requires the consent of a specified percentage of owners or holders of first mortgages on the Lots. Section 3. Approval of Owners and Holders of First Mortgage. After Class B Lots cease to exist, unless at least seventy-five percent (75%) of the owners and holders of the first mortgages on Lots located within the Properties have given their prior written approval, the Association shall not: (a) By act or omission seek to abandon, partition, subdivide, encumber, sell or transfer any real estate or improvements thereon which are owned, directly or indirectly, by the Association. The granting of easements for utilities or other purposes shall not be deemed a transfer within the meaning of this subsection. Nothing herein shall be deemed to prohibit the Association from exchanging Common Area for other real property of like utility and value as provided in Section 1(c) of Article IV of this Declaration, or to require the approval of such exchange by the holders of first mortgages on the Lots; (b) Change the method of determining the obligations, assessments, dues or other charges which may be levied against a Lot; (c) Fail to maintain hazard insurance on insurable improvements on the Common Area on a current replacement cost basis in an amount not less than one hundred percent (100%) of the insurable value; or (d) Use the proceeds of any hazard insurance policy covering losses to any part of the Common Area for other than the repair, replacement or reconstruction of the damaged improvements. Section 4. Payment of Taxes and Insurance Premiums. The owners or holders of first mortgages on Lots, jointly or singly, may pay taxes or other charges which are in default and which have or may become a charge or lien against any of the Common Area and may pay overdue premiums on hazard insurance policies or secure new hazard insurance coverage upon the lapse of a policy covering property owned by the Association. The persons, firms or corporations making such payments shall be owed immediate reimbursement therefor by the Association. ARTICLE VII -12- EASEMENTS Section 1. Access and Utility Easements. Easements for the installation and maintenance of driveways, walkways, water, gas, telephone, cable television and electric power transmission lines, sanitary sewer and storm water drainage facilities, and for other public utility installations are reserved as shown on the recorded plats of the Properties. The Association may reserve or grant easements over the Common Area as provided in Article IV, Section 1(c), of this Declaration. Within any such easement herein provided, no structure, planting or other material shall be placed or permitted to remain which may interfere with the installation or maintenance of the utilities installed thereon, or which may change the direction of flow or drainage of water through drainage pipes or channels constructed in such easements. For a period of thirty (30) years from the date hereof, Declarant reserves, for itself and its employees, agents, successors and assigns, an easement upon and a right of ingress, egress and regress on, over and under the Properties for the purposes of constructing and maintaining water, sewer, gas, storm water drainage and retention, telephone, cable television, and electric, and other utility facilities to the extent required by any applicable governmental entity or deemed by the Declarant to be necessary or convenient for the development, use and enjoyment of the Properties and the Common Area and for the conduct of construction, sales and marketing activities. Such right expressly includes the right to cut any trees, bushes or shrubbery, make any gradings of the soil or take any other similar action that it deems reasonably necessary or appropriate. After such action has been completed, Declarant shall grade and seed the affected property and otherwise restore the affected property to its original condition to the extent practicable, but shall not be required to replace any trees, bushes or shrubbery necessarily removed. Declarant shall give reasonable notice of its intent to take such action to each Owner whose Lot is affected. Section 2. Easements for Governmental Access. An easement is hereby established over the Common Area and every Lot within the Properties for the benefit of applicable governmental agencies for installing, removing, and reading water meters, maintaining and replacing water and sewer facilities, and acting for other purposes consistent with public safety and welfare, including, without limitation, law enforcement, fire protection, garbage collection and the delivery of mail. Section 3. Owner's Easement and Right of Entry for Repair, Maintenance and Reconstruction. If any Dwelling is located closer than five (5) feet from its Lot line, the Owner thereof shall have a perpetual access easement over the adjoining Lot to the extent reasonably necessary to perform repair, maintenance or reconstruction of such Dwelling. Such work shall be done expeditiously and, upon completion of the work, the Owner shall restore the adjoining Lot to as nearly the same condition as that which existed prior to the commencement of the work as is reasonably practicable. No fence shall be erected within such area adjoining a Dwelling. Section 4. Association's Easement and Right of Entry. The Association, for itself and its employees, agents, contractors, subcontractors and invitees, shall have a perpetual access easement over the each Lot to the extent reasonably necessary to perform the maintenance to be performed by the Association. Section 5. Easement Over Common Area. An perpetual, non-exclusive easement over the Common Area is hereby granted to each Lot and its Owners, family members and tenants of -13- such Owners, the occupants of such Lot, and guests and invitees of such Owners, tenants or occupants, for the purpose of providing access, ingress and egress to and from streets, parking areas and walkways serving the Properties. ARTICLE VIII ARCHITECTURAL CONTROL Section 1. Architectural Approval. Since the establishment of inflexible building setback lines for location of houses on lots tends to force construction of houses directly to the side of other homes with detrimental effects on privacy, view, preservation of important trees and other vegetation, ecological and related considerations, no specific setback lines are established by this Declaration. In order to assure, however, that the foregoing considerations are given maximum effect, the site and location of any house or dwelling or other structure upon any Lot shall be controlled by and must be approved absolutely by the Declarant or the Architectural Control Committee, as the case may be. The Architectural Control Committee shall have the sole and absolute right to determine the style and appearance of the Dwellings, including, but not limited to, fences, walls, buildings, outbuildings, garages, storage sheds, mailboxes, lawn decorations, structures of any type or color thereof, grading, landscaping, patio covers and trellises, plans for off-street parking of vehicles and utility layout, and any other improvements to be built or constructed on any Lot (hereinafter individually and collectively referred to as "Improvements"). No Lot owner may remove any tree from any Lot, or make any material changes to the landscaping in areas of Lots maintained, or to be maintained by the Association without the approval of the Architectural Control Committee. After occupancy of a Dwelling as a residence pursuant to a certificate of occupancy or other similar certificate issued by the appropriate governmental authority, no Improvements (including, without limitation, replacement of any previously existing Improvements) shall be commenced, erected or maintained upon the Properties, nor shall any exterior addition to or change or alteration thereof be made (including, without limitation, changing materials or color of any exterior portion of any such Improvements), nor shall a building permit for such Improvements or change be applied for or obtained, until plans and specifications showing the nature, kind, shape, heights, materials, color and location of same shall have been submitted to and approved in writing by the Association or by an Architectural Review Committee ("ARC") composed of three or more persons appointed by the Board of Directors of the Association. If the Association or its designee fails to approve or disapprove such proposed Improvements within 60 days after complete plans and specifications have been received by it, approval will not be required, and this Article shall be deemed to have been complied with. The Association shall have the right to charge a reasonable fee, not to exceed $25.00, for receiving and processing each application. The Declarant and, after the Declarant no longer owns any Lot within the Properties, the Association, shall have the right to promulgate and from time to time amend written architectural standards and construction specifications (hereinafter the "Architectural Guidelines") which may establish, define and expressly limit the standards and specifications which will be approved, including, but not limited to, architectural style, exterior color or finish, roofing material, siding material, driveway material, landscape design and construction technique. Neither the -14- Association nor the ARC shall approve any Improvements which it determines, in its sole discretion, not to be in harmony of external design, construction and/or location in relation to the surrounding structures, topography or the general plan of development of the Subdivision. Neither the Declarant, the Association, the Board of Directors, the ARC, nor any member or employee of any of them, shall have any liability to any person or entity by reason of any acts taken or omitted by them, or any of them, in good faith pursuant to this Article. Section 2. Rules and Regulations. The ARC may from time to time recommend to the Board, and the Board may, in its sole discretion, adopt, promulgate, amend and repeal rules and regulations interpreting and implementing the provisions of this Article VIII, including adoption of detailed architectural guidelines and the imposition of a fee or charge for review of proposed improvements or modifications. Section 3. Variances. The ARC may recommend to the Board, and the Board may, by the vote or written consent of a majority of the members thereof, allow reasonable variances as to the covenants, conditions or restrictions contained in this Declaration, on such terms and conditions as it shall require; provided, however, that all such variances shall be in keeping with the general plan for the improvement and development of the Property. Variances contained in plans that are inadvertently approved by the ARC as part of the proposed improvements shall not be considered as having been approved unless specifically approved by the Board in accordance with the provisions of this Section. ARTICLE IX PARTY WALLS Section 1. General Rules of Law to Apply. The general rules of law regarding party walls, lateral support in below ground construction and of liability for property damage due to negligence or willful acts or omissions shall apply to each wall which is built as part of the original construction of the Dwellings within the Properties and placed on the dividing line between the Lots, and all reconstruction or extensions of such walls, to the extent not inconsistent with the provisions of this Article. Section 2. Sharing of Repair and Maintenance. The cost of reasonable repair and maintenance of a party wall shall be shared by the Owners who make use of the wall in proportion to such use. Section 3. Destruction by Fire or Other Casualty. If a party wall is destroyed or damaged by fire or other casualty, any Owner who or which uses the wall may restore it, and if the other Owners thereafter make use of the wall, they shall contribute to the cost of restoration thereof in proportion to such use without prejudice, however, to the right of any such Owners to call for a larger contribution from the others under any rule of law regarding liability for negligent or willful acts or omissions. Section 4. Easement and Right of Entry for Repair, Maintenance and Reconstruction. Every Owner shall have an easement and right of entry upon the Lot of any other Owner and the Common Area to the extent reasonably necessary to perform repair, maintenance or reconstruction of a party wall and those improvements belonging to his Lot which encroach on an adjoining Lot or Common Area. Such repair, maintenance, or reconstruction shall be done -15- expeditiously, and upon completion of the work, the Owner shall restore the adjoining Lot(s) and Common Area to as nearly the same condition as that which prevailed prior to commencement of the work as is reasonably practicable. Section 5. Weather-proofing. Notwithstanding any other provision of this Article, an Owner who, by his negligence or willful act, causes the party wall to be exposed to the elements, shall bear the entire cost of furnishing the necessary protection against such elements. Section 6. Right to Contribution Runs With Land. The right of any Owner to contribution from any other Owner under this Article shall be appurtenant to the land and shall pass to such Owner's successors in title. Section 7. Certification by Adjoining Property Owner That No Contribution Is Due. If any Owner desires to sell his Lot, such Owner, in order to assure a prospective purchaser that no Owner of an adjoining Lot has a right of contribution as provided in this Article, may request the adjoining property Owner to make a certification that no right of contribution exists, whereupon it shall be the duty of each adjoining property Owner to make such certification immediately upon request, and without charge; provided, however that where the adjoining property Owner claims a right of contribution, the certification shall contain a recital of the amount claimed. Section 8. Arbitration. In the event of a dispute concerning a party wall or the provisions of this Article, such dispute shall be resolved pursuant to the provisions of Section 8 of Article XII hereof. ARTICLE X RIGHTS AND RESPONSIBILITIES OF THE ASSOCIATION Section 1. Responsibilities. The Association, subject to the rights of the Owner set forth in this Declaration, shall be responsible for the exclusive management and control of the Common Area, including the streets and roadways, and shall keep the Common Area, including the streets and roadways, in good, clean and proper condition, order and repair. The Association shall be responsible for the payment of all costs, charges and expenses incurred in connection with the operation, administration and management of the Common Area and the performance of its other obligations hereunder. The Association shall operate and maintain areas designated by the Declarant as Common Areas, whether or not title to such areas has been formally conveyed to the Association. The Association shall also be responsible for enforcement of the covenants and restrictions contained in this Declaration. Section 2. Section 4. Maintenance by Association. The Association at its expense shall be responsible for maintaining, repairing and replacing all utility and drainage lines and pipes which are located on the properties, except those located within individual Lots. The Association shall have the right to go onto the Lots at reasonable times for the purpose of maintaining, repairing and replacing all utility and drainage lines and pipes which might be located on such Lots; and each Owner hereby grants permission to the Association to enter his Lot for such purposes. In the event that the need for maintenance, repair or replacement (other than said being caused by fire, lightning, windstorm, hail, explosion, riot, riot attending a strike, civil commotion, aircrafts, vehicles, and smoke, as the foregoing are defined and explained in North -16- Carolina Standard Fire and Extended Coverage Insurance Policies) is caused through the willful, or negligent act of the Owner, his family, guests or invitees, the cost of such maintenance, replacement, or repairs shall be added to and become a part of the assessment to which such Lot is subject. The Association at its expense shall be responsible for maintaining and caring for the entire lawn of the Class A Lots which includes mowing, edging, application of pine straw and pruning of trees and shrubs. The Association shall also maintain the irrigation system of Class A Lots and shall have the right to go on said Lots at reasonable times for the purpose of performing such maintenance and care; and each Owner hereby grants permission to the Association to enter his Lot for such purposes. In the event that the need for maintenance, repair or replacement of the lawns or landscaping, or the irrigation systems servicing them, is cause by the willful or negligent act of the Lot owner, his family, or his invitees, and specifically including failure to water the lawn and other landscaping, the cost of such maintenance, repair or replacement shall be added to and become a part of the assessment to which such Lot is subject. Section 2. Manager. The Association may employ and pay for the services of a person or entity, including the Declarant (the "Manager"), to assist the Association in managing its affairs and carrying out its responsibilities hereunder and such other persons or entities, including attorneys and accountants, as the Association deems necessary or advisable, whether such persons or entities are engaged, furnished of employed by the Manager or directly by the Association. The Association may enter into a Management Agreement for such management services upon such terms as the Board of Directors may deem appropriate. The payment of management fees due to the Declarant may, at Declarant's option, be deferred until such later date as Declarant, in its sole discretion, deem appropriate. Furthermore, any management fees due to Declarant may, at Declarant's option, be credited against any assessments due or to be coming due from the Declarant. Section 3. Personal Property for Common Use. The Association may acquire and hold tangible and intangible personal property and may dispose of the same by sale or otherwise, subject to such restrictions, if any, as may from time to time by provided in the Articles of Incorporation or Bylaws of the Association. Section 4. Insurance: Bonds. The Association shall procure and maintain adequate liability insurance covering the Association. The Association shall also procure and maintain full replacement value hazard insurance on real and personal property owned by the Association, and shall procure and maintain officers', directors' and employees' liability insurance, and such other insurance as it deems necessary or advisable. The premiums for such insurance shall be a common expense paid from the annual assessments provided in Article V of this Declaration. The Association may cause any or all persons responsible for collecting and disbursing monies of the Association to be bonded. Section 5. Implied Rights. The Association may exercise any other right or privilege and take any action authorized by this Declaration, the Association's Articles or Bylaws, or the North Carolina Nonprofit Corporation Act, as from time to time amended, and every other right or privilege reasonably necessary to effectuate the exercise of any right or privilege or the taking of any action authorized herein or therein. -17- Section 6. Declarant's Reserved Rights; Association's Obligation of Cooperation. The Association shall accept conveyance of any Common Area conveyed to it, in fee or by easement, by Declarant or, at the request of Declarant, by an owner of any property within or to be annexed into the Properties and, upon request of Declarant and without further consideration, shall execute any document necessary to evidence such acceptance. Until such time as Declarant and Builders have completed all of the contemplated improvements and have sold all of the Lots within the Subdivision: (a) Declarant shall have the right to alter the boundaries of the Common Area, whether or not it has been previously deeded to the Association, provided that such alteration does not substantially, materially and adversely affect the function and use of the Common Area. The Association and each Owner hereby irrevocably appoints the Declarant as his attorney-in-fact to execute and/or deliver any documents, plats, deeds, or other written matters necessary or convenient to accomplish the addition of Common Area or Properties, or both, to create easements as deemed necessary by Declarant, and to adjure the boundary or boundaries of the Common Area. (b) Neither the Association nor its Members, nor the use of the Common Area by the Association and its Members, shall interfere with or impede the completion of the improvements or the marketing and sale by the Declarant and the Builder of Lots and homes. (c) Declarant and each Builder shall have the right to make such use of Lots and the Common Area as may facilitate completion of development and sale of Lots and Units by the Declarant and the Builder. Without limiting the foregoing, Declarant shall have the right to maintain or permit the Builder or others to maintain sales offices, model Dwellings and Units, administrative offices, and construction offices (which may be trailers or temporary or permanent buildings), or any or all of same, on Lots or the Common Area. Declarant and the Builder shall also have the right to erect and maintain signs on Lots and/or the Common Area, to bring prospective purchasers upon the Common Area, to-use the Common Area for sales and marketing activities for the Subdivision, to grant the right to use the Common Area to a prospective purchasers or any other individual or group, in Declarant's sole discretion, and to conduct any and all other marketing activities deemed appropriate by the Declarant, and to permit the Builder and others to exercise such rights in conjunction with or separate from the Declarant. (d) Subject to the provisions of Section 1(d) of Article IV of this Declaration, Declarant shall have the right, but not the obligation, to loan money to the Association in such amounts and upon such terms and conditions as to which the Declarant may agree. Payments due to the Declarant under any such loans may, at Declarant's option, be credited against any assessments coming due at any time from the Declarant. (e) In addition to all other rights of the Declarant, no amendment shall be made to this Declaration, and no rule or regulation shall be adopted, interpreted or enforced by the Association, so as to modify the assessments or other charges applicable to the Declarant or a Builder or assessed against the Lots owned by either, or which shall restrict, impair, or, in Declarant's sole judgment, materially adversely affect the activities of the Declarant or the Builder with regard to construction, use of Common Area and delegation of the right to use the Common Area, or the marketing and sale of Lots by the Declarant and Builder, whether or not 18 such activities are enumerated in the preceding paragraphs, without the express prior written consent of Declarant. In exercising any of the rights provided or granted under this Article X, neither Declarant, nor the Association shall revoke, modify or amend this Declaration in a manner that reduces the size of the Common Area to less than, the area required by the appropriate governmental authority as of the date of this Declaration. ARTICLE XI USE RESTRICTIONS Section 1. Business Use Prohibited. No trade, business, profession or other type of commercial activity shall be carried on upon any Lot, except that the Declarant, the Builder, real estate brokers, Owners and their agents may show Lots for sale or lease. Notwithstanding the foregoing, the Declarant and each Builder and the agents and employees of each, shall have the right to: (i) use Lots and improvements erected thereon for sales offices, field construction offices, storage facilities, and its own general business offices; (ii) maintain fluorescent-lighted or spot-lighted model homes which may be open to the public for inspection 7 days per week for such hours as the Declarant or Builder deems appropriate or necessary; (iii) conduct any other activities on Lots to benefit sales efforts; and (iv) use the parking facilities on the Common Area for parking for its employees and invitees. Section 2. Use of Accessory Structures. No tent, shack, barn, car port, metal awnings, metal utility sheds or other building, other than a Dwelling and its garage, shall be erected on a Lot and used temporarily or permanently as a residence. Notwithstanding the foregoing, the Declarant and, with the approval of the Declarant, a Builder, may use temporary buildings, offices or facilities in connection with the marketing, sale and construction of Units. Section 3. Maintenance of Improvements. Each Owner shall maintain in good condition and repair all improvements constructed upon such Owner's Lot, including, without limitation, the Dwelling. No Owner shall change the exterior design or color of the Dwelling on such Owner's Lot, including the roof thereof, except in compliance with Article VIII hereof. Section 4. Storage: Clothes Hanging. No Lot or Common Area shall be used for the storage of rubbish. Outside clothes hanging devices shall not be permitted. Section 5. Nuisances. No noxious or offensive trade or activity shall be carried on upon any Lot or the Common Area, nor shall anything be done thereon which may be or become an annoyance or nuisance to the neighborhood. No automobile or other vehicle mechanical repairs or like activity shall be conducted within the Properties other than in a garage and concealed from public view. Section 6. Lawns Within Fenced Areas. In the event any owner of a Class A Lot shall erect a fence pursuant to the provisions of Section 12 infra, then said Owner shall maintain the lawn within that fenced-in area in a neat condition. "Neat" shall require, at a minimum, that the lawn be regularly cut and fertilized and that mulched areas be regularly re-mulched and kept weeded so that its appearance is in harmony with the neighborhood. No such Owner shall allow the grass in the fenced-in area of the Lot to grow to a height in excess of six (6) inches, measured from the surface of the ground. All fenced-in areas of Class A Lots must have grass lawns; no -19- gravel or similar type lawns are permitted. The Association shall not be responsible for lawn maintenance within fenced-in areas of Class A Lots, but this shall not affect the amount of Association dues applicable to said Lot. Section 7. Failure to Maintain. If an Owner fails to maintain the Lot or the improvements thereon, the Association or the appropriate Subassociation, after giving such Owner at least ten (10) days' written notice, shall be authorized to undertake such maintenance at the Owner's expense. By accepting title to his Lot, each Owner shall be deemed to grant access upon the Owner's Lot and Dwelling for such purpose and such entry shall not constitute a trespass. If such maintenance is undertaken by the Association, Subassociation or Declarant, the charge therefor and all costs of enforcement and collection shall be secured by a lien against the Lot as provided in Article V hereof. Section 8. Animals. No animals, livestock or poultry of any kind shall be raised, bred, or kept on any Lot, except that a reasonable number of cats, dogs, and other household pets may be kept provided they are kept within the residence and are not kept, bred, or maintained for any commercial purposes or become a nuisance to the neighborhood. No person owning or having custody of an animal shall allow the animal to stray or go upon another Owner's Lot without the consent of such other Owner. No animals shall be permitted on or in the Common Area at any time except as permitted by the rules and regulations of the Association or by applicable law. All animals shall be on a leash when outside the Owner's dwelling, and the Owner shall be responsible for cleaning up all droppings from their animals. Section 9. Signs. No signs shall be displayed on any Lot with the exception of one "For Sale" or "For Rent" sign not exceeding 36" x 24" in size. The Association may develop uniform sign standards and specifications to which all Owners must adhere. No sign of any kind shall be displayed in or on the Common Area without the prior written consent of the Association. Notwithstanding the foregoing, Declarant and, with the consent of and upon such conditions as Declarant, in its sole discretion, might impose, a Builder shall have the right to erect and maintain signs of any type and size on any Lot which it owns and on the Common Area, in connection with the development and sale of the Properties. Section 10. Water Retention Areas. The Association shall be responsible for maintaining the portions of the storm water drainage system which are within the Common Area, including the water quality and quantity standards of the approved plans, to the extent required by law. A drainage easement is hereby dedicated to the Association for the purpose of maintaining the storm water system to meet water quality and quantity design standards of the approved plans and any future governmental laws, rules or regulations. Each Owner of a Lot which borders a water retention area shall maintain any portion of that Owner's Lot lying within a retention area free of debris but shall not remove any wetlands species or do anything that would affect adversely water quality within the water retention area. Swimming and bathing in water retention areas are prohibited. Docks or other structures shall not be erected in water retention areas without the prior written consent of the Association. All other uses of water retention areas shall be subject to the prior written approval of the Association and such rules and regulations as the Association may adopt from time to time. Section 11. Vehicles, Boats and Trailers. Off-street parking for not less than two (2) -20- passenger automobiles must be provided on each Lot prior to the occupancy of any dwelling constructed on said Lot, which parking areas and the driveways thereto shall be constructed of concrete, brick, asphalt, or turfstone. Parking of motor vehicles on lawns or in other landscaped areas is prohibited. No truck or vehicle used primarily for commercial purposes (other than those temporarily present on business), no recreational vehicles or campers, and no trailer may be parked within the Properties. Any vehicle not in operable condition and validly licensed, may be kept on a Lot only if kept inside a garage and concealed from public view. No boat may be kept on any Lot. For the purpose of this section, the term "kept" shall mean present for either a period of more than ten (10) hours or overnight, whichever is less. The Association shall have the right to tow or remove any boat, trailer, or vehicle of any type which is parked within the Premises or kept on any Lot in violation of this section, at the owner's expense, and the owner of each Lot, by acceptance of their deed, does grant to the Association such an easement on, across, and upon their Lot as may be necessary to enforce the provisions set out in this section. Section 12. Walls, Fences, and Hedges. All walls, fences, planters and hedges shall be controlled strictly for compliance with this Declaration and architectural standards established by the Declarant or the ARC. As set out in Section 6 supra, the owner of any Class A Lot on which any area is fenced shall be responsible for maintaining the lawn within the fenced-in area. No wall, fence, planter, or hedge shall be erected or maintained on a side lot line forward of the rear exterior corners of the main residential structure located on a Lot. For the purpose of this provision the rear exterior corner of the main residential structure excludes bay or box windows, chimney structures or any other similar appendage. No perimeter wall, fence, or hedge in excess of six (6) feet in height shall be erected and maintained on a side lot line from a point located at the rear exterior corner of the main residential structure, backward to the rear property line on a Lot and along the rear property line of the Lot. On corner lots, side yard fences must be set back from the side property line a minimum of one-half (1/2) of the side building line setback shown on the plat, but in no event shall the fence be located forward of the rear exterior corner of the main residential structure. The design and materials of all fences shall be approved by the ARC prior to construction pursuant to the approval requirements of Article VIII, Section 1, of this Declaration. Section 13. Above ground swimming pools. No above ground swimming pool shall be erected, constructed, placed or permitted to remain on any Lot. Section 14. Antennae and Roof Structures. No radio or other electrical towers, aerials, antennae, or other devices of any type for the reception or transmission of radio broadcasts or other means of communication shall be erected, constructed, placed or permitted to remain on any Lot or upon any improvements thereon, except that this prohibition shall not apply to those antennae specifically covered by 37 C.F.R. Part 1, Subpart S, Section 1.4000 (or any successor provision) promulgated under the Telecommunications Act of 1996, as amended from time to -21- time. The Association shall be empowered to adopt rules governing the types of antennae that are permissible hereunder and establishing reasonable, non-discriminatory restrictions relating to safety, location and maintenance of antennae. An antenna permissible pursuant to rules adopted by the Association may be installed only if it is approved by the Association pursuant to Article VIII hereof. Section 15. Visual Obstructions at the Intersections of Public Streets. No object or thing which obstructs sight lines at elevations between two (2) and six (6) feet above the roadways within the triangular area formed by the junction of street curb lines and a line connecting them at points twenty-five (25) feet from the junction of the street curb lines (or extensions thereof) shall be placed, planted or permitted to remain on any corner lots. Section 16. Leased Units. An Owner may lease or sublet his Unit; provided, however, that any lease or sublease must be for at least six (6) months, in writing and contain the following provision: "Tenant shall obey, adhere to and be bound by all provisions of the Declaration Of Covenants, Conditions And Restrictions For the Traemoor at Arbor Creek Community, recorded in the applicable public registry for Brunswick County, North Carolina. Tenant acknowledges that he has received of a copy such Declaration-and the rules and regulations of the Association and is familiar with the provisions of same." If an Owner fails to include said provision in any lease or sublease, it shall be conclusively deemed to be included and part of said lease or sublease. Owner shall furnish the Association a copy of any leases or subleases of his Unit. Section 17. Minimum Size of Units. All Units constructed within the Properties shall be 11 200 square feet or larger Section 18. Attached Garages. All Class A Units constructed within the Properties shall contain an enclosed garage that is permanently attached to and part of the Unit and such garage shall be large enough to accommodate at least one automobile. Section 19. Seasonal or Holiday Decorations. (e.g., Christmas trees and lights, pumpkins, Easter decorations) shall be removed from each Lot or residential dwelling within a reasonable period of time after such holiday passes. The ARC has the sole discretion to determine what is a reasonable period of time for seasonal or holiday decorations to exist after the holiday passes and its determination shall be final. Section 20. Window Coverings. All drapes, curtains or other similar materials hung at windows so as to be visible from outside the home shall be of a white or neutral background material. Section 21. Exterior Lights. All light bulbs or other lights installed in any fixture located on the exterior of any building or any Sites shall be clear, white or non-frosted lights or bulbs. Light wattage and placement shall be approved by the Architectural Control Board. Section 22. All service utilities, fuel tanks, wood piles and trash and garbage containers are to be enclosed within a fence, wall or plant screen of a type and size approved by the -22- Declarant or the Architectural Control Committee, so as to preclude the same from causing an unsightly view from any highway, street or way within the subdivision, or from any other residence within the subdivision. Section 23. Deviations. Declarant at its sole discretion, is hereby permitted to approve deviations to restrictions in Article XI in instances where in its judgment, such deviation will not adversely affect the development of the Property as a whole. Such approvals must be granted in writing and when given will automatically amend these restrictions for that certain Lot only. ARTICLE XII STORMWATER MANAGEMENT Section 1. The following covenants are intended to ensure ongoing compliance with State Stormwater Management Permit Number , as issued by the Division of Water Quality under NCAC 2H.1000. The State of North Carolina is made a beneficiary of these covenants to the extent necessary to maintain compliance with the Stormwater Management Permit. These covenants are to run with the land and be binding on all persons and parties claiming under them. The covenants pertaining to stormwater may not be altered or rescinded without the express written consent of the State of North Carolina, Division of Water Quality. Alteration of the drainage as shown on the approved plans may not take place without the concurrence of the Division of Water Quality. Section 2. The maximum allowable built-upon area per lot is 4,200 square feet. This allotted amount includes any built-upon area constructed within the lot property boundaries, and that portion of the right-of-way between the front lot line and the edge of the pavement. Built- upon area includes, but is not limited to, structures, asphalt, concrete, gravel, brick, stone, slate, and coquina and parking areas, but does not include raised, open wood decking, or the water surface of swimming pools. Section 3. All runoff from the built-upon areas on the lot must drain into the permitted system. This may be accomplished through providing roof drain gutters which drain to the street, grading,the lot to drain toward the street, or grading perimeter swales to collect lot runoff and directing ahem into the stormwater system or into the street. Lots that will naturally drain into the system are not required to provide these additional measures. ARTICLE XIII GENERAL PROVISIONS Section 1. Enforcement. The Association or any Owner shall have the right to enforce, by proceeding at law or in equity, all restrictions, conditions, covenants, reservations, liens and charges now or hereafter imposed by the provisions of this Declaration. Failure by the Association or an Owner to enforce any covenant or restriction herein contained shall in no event be deemed a waiver of the right to do so thereafter. Further, the Board of Directors shall have the right to record in the appropriate land records a notice of violation of this Declaration or the Bylaws of the Association, or any rules, regulations, use restrictions, or design guidelines -23- promulgated by the Association and to assess the cost of recording and removing such notice against the Owner in violation of the Declaration. Section 2. Severability. Invalidation of anyone of these covenants or restrictions by judgment or court order shall in no way affect any other provision, which shall remain in full force and effect. Section 3. Amendment. For so long as Declarant owns any Lot or Unit within the Properties, this Declaration may be amended by the Declarant, without the consent or joinder of any other Owner or the Association. Any such amendment shall be effective upon recording of same in the applicable public registry for Brunswick County, North Carolina. No amendment shall be binding upon any Lot or Owner until fifteen (15) days after a copy of such amendment has provided to such Owner. The covenants and restrictions of this Declaration, and any amendments thereto, are appurtenant to and shall run with and be binding upon the Properties and the Owners thereof for a term of twenty-five (25) years from the date this Declaration is recorded, after which time they shall be automatically extended for successive periods of ten (10) years unless terminated or amended by a vote of the Owners as set forth below. Subject to the provisions of Section 8(e) hereof and after Class B Lots cease to exist, this Declaration may be amended during the first twenty-five year period by an instrument signed by the Owners of not less than seventy-five percent (75%) of the Lots and terminated during the first twenty-five year period by an instrument signed by the Owners of not less than eighty percent (80%) of the Lots, and thereafter amended by an instrument signed by the Owners of not less than sixty-seven percent (67%) of the Lots or terminated by an instrument signed by the Owners of not less than eighty percent (80%) of the Lots, provided, however, that so long as there is Class B membership, no amendment adopted by the Owners shall be effective unless and until such amendment is approved in writing by the Declarant. Amendment or termination shall be by written instrument signed by the appropriate persons or entities and recorded in the applicable public registry for Brunswick County, North Carolina, and upon recordation, shall be binding on all Lots and Units within the Properties and the Owners thereof, without regard to whether the Owner of such Lot voted for or against or signed or did not sign the amendment. Section 4. Interoretation. Headings used herein are for indexing purposes only and shall not be used as a means of interpreting or construing any provision hereof. Unless the context otherwise requires, the use herein of the singular shall include the plural and vice versa: the use of one gender shall include all genders; and the use of the word "including" shall mean "including, without limitation". This Declaration and the provisions thereof shall be construed and enforced in accordance with the laws of the State of North Carolina. Section 5. Subdivision of Lots. No Lot within the Subdivision may be subdivided by sale or otherwise so as to reduce the total Lot area shown on the recorded plat, except by or with the consent of the Declarant and, if required, by the appropriate governmental authority. Section 6. Declarant's Right To Change Development. With the approval of the appropriate governmental authority, and subject only to such terms and conditions as said authority may impose, Declarant shall have the right, without consent or approval of the Owners, to create Lots and Units, add Common Area, and reallocate Lots or Units within the Properties. -24- Additionally, the Developer may convert any lot or lots or any other property subject to these restrictions to use as a roadway. Section 7. Rules and Regulations: Enforcement. The Board of Directors shall have the authority to adopt additional rules and regulations governing the use of the Common Area and the Lots within the Subdivision and shall furnish a written copy of said rules and regulations to the Owners) of each Lot at least fifteen (15) days before such rules and regulations become effective. In addition to any other rights and remedies that the Association may have under the Bylaws and this Declaration, the Association may impose sanctions for a violation of this Declaration, the Bylaws of the Association, the rules and regulations adopted Association, and any restrictive covenants applicable to the Properties, in accordance with procedures set forth in the Bylaws, which sanctions may include, without limitation, reasonable monetary fines, which shall constitute a lien upon the Lot of the violator, and suspension of the right to vote and the right to use the Common Area any facilities thereon. In addition, as provided in the Bylaws, the Association may exercise self-help to cure violations (specifically including, but not limited to, the towing of Owner and tenant vehicles that are in violation of parking rules) and may suspend the right of an Owner to use any Common Area and recreational facility within the Properties if the Owner is more than 30 days delinquent in paying any assessment or other charge due to the Association. The Association shall at all times have the right and easement to go upon any Lot for the purposes of exercising its rights hereunder, including, but not limited to, enforcement of the architectural guidelines applicable to the Properties. Any entry onto any Lot for purposes of exercising this power of self-help shall not be deemed as trespass. All remedies set forth in this Declaration and the Bylaws shall be cumulative of any remedies available at law or in equity. In any action to enforce its rights and remedies, if the Association prevails, it shall be entitled to recover all costs, including, without limitation, attorneys' fees and court costs, incurred in such action. The Association shall not be obligated to take action to enforce any covenant, restriction or rule which the Board reasonably determines is, or is likely to be construed as, inconsistent with applicable law, or in any case in which the Board reasonably determines that the Association's position is not strong enough to justify taking enforcement actions. Any such determination shall not be construed as a waiver of the right to enforce such provisions under other circumstances or to estop the Association from enforcing any other covenant, restriction or rule. Section 8. Dispute Resolution. (a) Consensus for Association Action. (1) Except as provided in this Section, the Association may.not commence a legal proceeding or an action under this Article without the approval of at least two-thirds of the Members. The foregoing shall not apply to: (i) actions brought by the Association to enforce the provisions of this Declaration, the Bylaws, or rules and regulations adopted by the Association (hereinafter collectively referred to as the ("Governing Documents"); (ii) the imposition and -25- collection of assessments; (iii) proceedings involving challenges to ad valorem taxation: or (iv) counterclaims brought by the Association in proceedings against it. (2) Prior to the Association or any Member commencing any proceeding to which Declarant is a party, including, without limitation, a proceeding based on an alleged defect in any improvement, Declarant shall have the right to be heard by the Members, or the particular Member, and to have access to inspect and correct the condition of or redesign any portion of any improvement as to which a defect is alleged or to otherwise correct or resolve the dispute. (b) Alternative Method for Resolving Disputes. Declarant, its officers, directors, employees and agents, the Association, its officers, directors and committee members, all Owners, Members, any Builder, its officers, directors, employees and agents, and any other person or entity not otherwise subject to this Declaration who agrees to submit to this Section 8 (each such person or entity being herein referred to as a "Bound Party" or, in groups, as the "Bound Parties") each agrees to encourage the amicable resolution of disputes, without the emotional and financial costs of litigation. Accordingly, each Bound Party covenants and agrees to submit those claims, grievances and disputes described in Subsection (c) hereof (herein referred to as the "Claims") to the procedures set forth in Subsection (d) hereof. (c) Claims. Unless specifically exempted below, all Claims between any of the Bound Parties, regardless of how such Claims might have arisen or on what they might be based, including, but not limited to, Claims: (i) arising out of or relating to the interpretation, application or enforcement of the Governing Documents or the rights, obligations and duties of any Bound Party under the Governing Documents; (ii) relating to the design and construction of improvements; or (iii) based on any statements, representation, promises, warranties, or other communications alleged to have been made by or on behalf of any Bound Party, shall be subject to the provisions of Subsection (d) hereof. Notwithstanding the foregoing, unless all parties to any such dispute otherwise agree in writing, the following shall not be deemed to be Claims covered by this Subsection (c) and shall not be subject to the provisions of Subsection (d): (1) any proceeding by the Association against any Bound Party to enforce the provisions of Article V of this Declaration: (2) any proceeding by the Association or the Declarant to obtain a temporary restraining order or injunction (or equivalent equitable relief) and such other ancillary relief as the court may deem necessary in order to maintain the status quo and preserve the Association's or the Declarant's ability to act under and enforce the provisions of Articles VIII and XI of this Declaration; (3) any proceeding between or among Owners, which does not include the Declarant, a Builder, or the Association as a party, if such proceeding asserts a Claim which would constitute a cause of action independent of the Governing Documents; or (4) any proceeding in which no Bound Party is an indispensable party. With the consent of all parties thereto, any dispute involving any of the foregoing excepted actions may be submitted to the alternative dispute resolution procedures set forth in Subsection (d). -26- (d) Mandatory Procedures. (1) Notice. Any Bound Party having a Claim (the "Claimant") against any other Bound Party (the "Respondent") (the Claimant and the Respondent being herein individually referred to as a "Party" and collectively as the "Parties") shall notify each Respondent in writing (the "Notice"), stating plainly and concisely: (i) the nature of the Claim, including the persons or entities involved and the Respondent's role in the Claim: (ii) the legal basis of the Claim (i.e., the specific provisions of the Governing Documents or other authority out of which the Claim arises); (iii) the proposed remedy; and (iv) the fact that Claimant will meet with Respondent to discuss in good faith ways to resolve the Claim. (2) Negotiation and Mediation. (i) The Parties shall make every reasonable effort to meet in person and confer for the purpose of resolving the Claim by good faith negotiation. If requested in uniting, accompanied by a copy of the Notice, the Board of Directors of the Association may appoint a representative to assist the Parties in their negotiations. ( ii) If the Parties do not resolve the Claim within 30 days after the date of the Notice (or within such other time period as may be agreed upon by the Parties), Claimant shall have an additional 30 days in which to submit the Claim to mediation under the auspices of the American Arbitration Association ("AAA") in accordance with the AAA's Commercial or Construction Industry Mediation Rules, as appropriate. (iii) If Claimant does not submit the Claim to mediation within such time, or does not appear for the mediation. Claimant shall be deemed to have waived the Claim, and Respondent shall be released and discharged from any and all liability to Claimant on account of such Claim; provided, nothing herein shall release or discharge the Respondent from any liability to any person or entity other than the Claimant. (iv) Any settlement of the Claim through negotiation or mediation shall be documented in writing and signed by the Parties. If the Parties do not settle the Claim within 30 days after submission of the matter to AAA mediation, or within such other time as may be determined by the mediator or agreed to by the Parties, the mediator shall issue a written notice of termination of the mediation process, which notice shall state that the Parties are at an impasse and set forth the date that mediation was terminated (hereinafter "Termination of Mediation"). (v) Each Party shall bear its own costs of the mediation, including attorneys' fees, and each Party shall share equally all fees and expenses of the mediator and the administrative fees of mediation. If the Parties agree to a resolution of a Claim through negotiation or mediation as set forth in this Subsection (d), and any Party thereafter fails to abide by the terms of the settlement agreement, any other Party may file suit or initiate arbitration proceedings to enforce the agreement without the need to again comply with the procedures set forth in this Subsection -27- (d). In such event, the Party taking action to enforce the agreement shall be entitled to recover from the non-complying Party (or, if more than one Party is in noncompliance, from all non- complying Parties pro rata) all costs incurred by such Party in enforcing the agreement, including, without limitation, attorneys' fees and court costs. (3) Binding Arbitration. (i) After Termination of Mediation, Claimant shall be entitled to submit the Claim to final, binding arbitration under the auspices of the AAA in accordance with the AAA's Commercial or Construction Industry Arbitration Rules, as appropriate. No Claim subject to this Subsection (d), whether by the provisions thereof or by agreement of the Parties, shall be submitted to or decided by or in a court of law. Any judgment upon the award entered by the arbitrator may be entered in and enforced by a court of competent jurisdiction. If the amount claimed by the Complainant or, by the Respondent in a counterclaim, exceeds $250,000, the Claim shall be heard and determined by three arbitrators. Otherwise, unless the Parties otherwise agree, the Claim shall be heard and determined by an arbitrator. An arbitrator shall have expertise in the areas) of the Claim, which may include legal expertise if legal issues are involved. (ii) Each Party shall bear its own costs of the arbitration, including attorneys' fees, and each Party shall share equally all fees and expenses of the arbitrator and the administrative fees of arbitration. Notwithstanding the foregoing, if a Party unsuccessfully contests the validity or scope of arbitration in a court of law, the non-contesting Party shall be awarded reasonable attorneys' fees and expenses incurred in defending such contest. All decisions regarding the arbitrability of any Claim shall be decided by the arbitrator(s). (iii) The award of the arbitrators shall be accompanied by detailed written findings of fact and conclusions of law. Except as required by law or for confirmation of an award, neither a Party nor an arbitrator may disclose the existence, content, or results of any arbitration hereunder without the prior written consent of all Parties involved in the arbitration. (e) Amendment of Subsection. Notwithstanding any other provision of this Declaration, this Subsection 8 may not be amended prior to the expiration of 20 years from the date of recording of this Declaration without the prior written consent of the Declarant. IN WITNESS WHEREOF, the undersigned, being the Declarant herein, has hereunto set its hand and seal this day of 12005. [SIGNATURES ON FOLLOWING PAGE] [Remainder of page intentionally left blank] -28- DECLARANT: BILL CLARK HOMES OF WILMINGTON, LLC, A North Carolina limited liability company By: (SEAL) Manager By: (SEAL) Manager STATE OF NORTH CAROLINA ) COUNTY OF NEW HANOVER ) I, , a Notary Public for do hereby certify that and Managers of Bill Clark Homes of Wilmington, LLC, a NC limited liability company, personally appeared before me this day and acknowledged the due execution of the foregoing instrument on behalf of said limited liability company. Witness my hand and seal this_day of 2005. Notary Public My comm. expires: -29- ones" _ _ Pr„iE RE1. 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O (+OG�7®(fGII�£ICJlb � ��5, n204 EXHIBIT W ��� J Beginning at an iron pipe loafed.'%F e R gh y line of NC Highway 211. said highway having a right I'� 7 a saihron pipitpJy�pp g�a�y 63 degrees 54 minutes 25 seconds tl�a SOY et ro /t gl ohnna"L"nd�y`$sYem�monumeol BYSTEM',said monument nog coordinates meters (Y)23743296 meters,thence South 74 degrees 27 minutes 48 seconds Fast ito a point,thence South 28 degrees 24 minutes 26 seconds West 1026.43 feet to a point, then"South 30 degrees 13 minutes 42 seconds West 47215 feet to a point. thence South 24 degrees 24 minutes 31 seconds West 57274 feet to a point,thence South 26 degrees 42 minutes 43 seconds Wen 29021 feet to a point.thence South 34 degrees 17 minutes 20 seconds West 494.67 feet to a point.then=South 24 degrees 20 minutes 21 seconds West 281.05 feet to a point,then=South 62 degrees 27 minutes 19 seconds Fast 167.86 feet to a point,thence South 18 de ea 56 minutes 42 seconds East 211.06 feet to a point.thence South 16 degrees 38 minutes =ads Fast 248.71 feet to a point.the 5�oJu th 42 degrees 40 minutes 28 seconds East Reer et to a point,thence �U4'S minutes Fast stands Fast 17Z61 feet to a So ee 4 ,min East seconds feet to a point,rhea"S u o Fast 5530 feet to a point,thence South 54 de aec dsPair137.06 feet to a point.thence South 24 degrees 34 minutes4XX.�ff"eet to a " 27 degrees 28 minutes 14 seconds W gm1pW ouch 16 degrees 37 minutes 42 seconds Eat Z24.93 feet to a point,then- Southh tes 47 seconds Fast 41MS feet m a point,thence North 84 degrees 17 minutes 04 s r 338.62 feet to a point,thence South 66 degrees 26 minutes 53 seconds East 136AI feet to a point,thence South 80 degrees 18 minutes 26seconds West 3714-52 feet to a point,thence North 34 degrees 19 minutes 23 seconds Eat 47522 feet to a point,thence Noah 28 degrees 37 minutes 24 seconds East 65252 feet to a point.thence North 22 degrees 48 minutes 53 seconds East 1375.89 feet to a point.then=North 22 degrees 50 minutes 43 seconds Eat 734.67 feet to a point.thence North 18 degrees 18 minutes 40 seconds East 2160.43 feet to a point. thence South 74 degrees 28 minutes 33 econds East 124124 feet to a point.thence Nonh 07 degrees 00 minutes 31 sccwl s a�985.76 feet to point of beginning,containing 200.00 2cre4 more or it" r Dam Partners LLG