20052255 Ver 2_More Info Received_20070112

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Wetland and Natural Resource
Consultants, Inc.
January 10, 2007
Mr. Ian McMi Ilan
NCDWQ-401 Permitting Unit
1650 Mail Service Center
Raleigh, North Carolina 27699
RE: Round Mountain Falls
Transylvania County, North Carolina
Action ID: 200632735
DWQ: 05-2255
Mr. McMi I Ian:
Per our telephone conversation on January 4t" I have enclosed five copies of the revised
Declaration of Easements, Convenants, Conditions and Restrictions for the Plat of Round
Mountain Falls. The two additions and one change you requested are at the bottom of
Page 9 within the document. You indicated that once you received this revised
document you would be able to issue the certification and I would like to thank you for
all of your help and assistance with this project.
You can contact me at 828-712-9205 if you have any remaining questions.
Best regards,
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Jennifer Robertson
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Canton, NC 28716 Newton, NC 28658
828-648-8801 828-465-3035
828-648-8802 Fax [phone] Fax

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DECLARATION OF EASEMENTS, COVENANTS, CONDITIONS AND
. RESTRICTIONS FOR THE PLAT OF
ROUND MOUNTAIN FALLS
This Declaration of Easements, Covenants, Conditions and Restrictions (the "Declaration") is
made on the date hereinafter set forth by the McKeough Land Company, Inc., an Illinois
corporation, of 208 Franklin Street, Grand Haven, MI 49417, hereinafter referred to as the
"Developer."
WITNESSETH
WHEREAS, the Developer, being the owner in fee simple of all real property and all
buildings and improvements thereon in the Plat of Round Mountain Falls, recorded in Plat
File 11, Slides 481 & 482 at the Registry of Deeds of Transylvania County, North Carolina
and incorporated herein by reference (hereinafter referred to as "the Development"); and
WHEREAS, Declarant desires to impose upon the Property mutually beneficial restrictions
under a general plan of improvement for the benefit of all owners of residential property
located within Round Mountain Falls, the Development is made subject to this Declaration in
accordance with the North Carolina Planned Community Act, as amended (the "Act"), for the
purpose of protecting the value and desirability of the property, and to provide a flexible and
reasonable procedure for the overall development of the Development, and to establish a
method for the administration, maintenance, preservation, use and enjoyment of such
properties as are now or may hereafter be subject to this Declaration, and in order to
implement said objectives, to convey the Development pursuant and subject to those certain
covenants, conditions, restrictions, reservations, liens, agreements and charges hereinafter set
forth; and
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WHEREAS, Declarant hereby declares that all the property described on the Plat of Round
Mountain Falls, and any additional property as may by subsequent amendment be added to
and subjected to this Declaration shall be held ,sold and conveyed subject to the following
easements, covenants, conditions and restrictions, which are for the purpose of protecting the
value and desirability of and which shall run with the real property subjected to this
Declaration and which shall be binding on all parties having any right, title or interest in the
described property or any part thereof ,their heirs, successors, successors-in-title and assigns
and shall inure to the benefit of each owner thereof; and
WHEREAS, in addition to Lots, the Developer wishes to make provisions for commonly
owned lands, and improvements located thereupon, as a component of the Development for
the use and enjoyment of the owners of Lots; and
WHEREAS, the Developer is contemplating the platting of additional Lots in the future,
which will be part of the Development; and
WHEREAS, the Developer wishes to permit the development of the Development into a
planned community suitable for family and recreational living and, at the same time, wishes
to maintain insofar as possible, the natural character of this beautiful property; and
WHEREAS, it is essential to the value of the Lots that the Development be perpetually
maintained in a manner consistent with high environmental, aesthetic and residential
standards; and
WHEREAS, to accomplish the foregoing, the Developer desires to impose certain
easements, covenants, conditions and building and use restrictions, as herein contained, upon
and for the benefit of said Lots and the Development as a whole; and
WHEREAS, the Developer is willing to sell the Lots and all buyers and subsequent owners
hereby accept such Lots subject to the easements, covenants, conditions and restrictions set
forth herein; and
NOW THEREFORE, the Developer declares that all of the Lots in the Development,
together with any Common Lands, are held and shall be held, conveyed, hypothecated or
encumbered, leased, rented, used, occupied and improved subject to the provisions of this
Declaration, all of which are declared and agreed to be in furtherance of a plan for the
development, improvement and sale of said Lots and are established and agreed upon for the
purpose of enhancing and protecting the value, desirability and attractiveness thereof. The
provisions of this Declaration are intended to create mutual equitable servitudes upon each of
said Lots in favor of each and all other Lots; to create reciprocal rights between the
respective owners of all such Lots; to create privity of contract and estate between the owners
of such Lots, their heirs, successors and assigns; and shall, as to the owner of each such Lot,
such owner's heirs, successors or assigns, operate as covenants running with the land for the
benefit of each and all other such Lots in the Development and their respective owners,
present and future.
2

ARTICLE I
DEFINITIONS
1.1 "Association" shall mean The Round Mountain Falls Property Owners Association, as
established hereinafter in Article 7.
1.2 "Architectural Review Committee" or "Committee" or "ARC" shall mean the
Architectural Review Committee as established hereinafter in Article 8.
1.3 "Common Land" and "Common Lands" means and includes all real property and all
tangible personal property now or hereafter owned by the Association or otherwise
held for the common use and enjoyment of the owners including all tangible personal
property required for the maintenance and operation of other property owned,
maintained or operated by the Association excluding the Lots.
1.4 "Developer" or "Declarant" shall mean the McKeough Land Company, Inc., the
current owner of the Development, or its successors or any person or entity to whom
or to which it may, in a document recorded with the Office of the Register of Deeds of
Transylvania County, expressly assign one or more of its rights hereunder or delegate
its authority hereunder.
1.5 "Development" shall mean any and all property described on the Plat of Round
Mountain Falls, or property added to the Development by subsequent amendment to
this Declaration, together with any and all appurtenances and improvements located
thereupon, subject to any easements, licenses, permits, restrictions and conditions.
1.6 "Lot" shall mean any portion of the Development, other than Common Lands, intended
for any type of independent ownership and use as may be set out in this Declaration
and as shall be shown on the plats of survey filed with this Declaration or subsequent
amendments thereto. Where the context indicates or requires, the term "Lot" includes
any structure on the Lot.
1.7 "Owner" and "Lot Owner" shall mean one or more persons or entities, who hold the
record title to any Lot which is part of the Development, but excluding in all cases
any party holding an interest merely as security for the performance of an obligation.
If the Lot is sold under a recorded contract of sale, the purchaser (rather than the fee
owner) will be considered the Owner.
1.8 "Mobile Home" shall mean any dwelling, transportable in one or more sections, which
is built on a permanent chassis.
1.9 "Modular Home" shall mean any dwelling constructed off-site from the Development
in 3-dimensional modules, which modules are then transported to the site for assembly
and integration to form the dwelling unit and which modules do not have as part of
their integral construction a permanent chassis for transporting said modules.
3

ARTICLE 2
SUBDIVISION OF LOTS
2.1 No Lot may be further subdivided unless all the resultant parcels created by the
subdivision are deeded to an adjacent Lot Owner(s) to increase the size of another Lot
and such division satisfies the requirements of applicable zoning ordinances and all
other governmental regulations.
ARTICLE 3
CARE AND APPEARANCE OF PREMISES
3.1 Lot Owners shall maintain the exterior of all improvements on any Lot and the Lot
itself in a neat and attractive manner and in good condition and repair.
3.2 All Common Lands shall be maintained by the Association in a neat and attractive
manner and in good condition and repair.
ARTICLE 4
PERMITTED AND PROHIBITED USES
4.1 No Lot, Common Lands or any part of the Development shall be used, nor shall any
structure be erected thereon or moved thereupon, unless the use thereof and location
thereon satisfies the requirements of applicable zoning ordinances and other
governmental regulations, if any, which are in effect at the time of the contemplated
use or the construction of any structure, or unless approval thereof is obtained from
the appropriate zoning or regulatory authority.
4.2 Except as otherwise specifically provided herein, Lots shall be used for the
construction of one single-family residence, and recreational uses incidental thereto,
only.
4.3 Home businesses are permitted if operated entirely within the dwelling, employ not
more than one (1)non-family member, and excessive traffic and parking
requirements are not generated. No exterior signage relating to home businesses shall
be permitted.
4.4 No unregistered or non-operational vehicle (unless garaged), trash, refuse pile or
unsightly or objectionable object or materials shall be permitted or maintained upon
the Development. All garbage and refuse shall be promptly disposed of so that it will
not be objectionable to neighboring Lot Owners. All rubbish, garbage, and trash
receptacles shall be covered or screened in a manner so as not to be visible from any
roadway or from other Lots. No dumping of refuse or storage of materials is
permitted upon the Common Lands. No garbage receptacle shall be left curbside for
4

more than atwenty-four (24) hour period preceding and following scheduled garbage
pick up times.
4.5 At such time as construction of a dwelling has commenced upon a Lot, a Lot Owner
may park one (1) properly registered recreational vehicle, including, but not limited to
boats, trailers, campers, ATVs, personal watercraft (PWC) and other such vehicles on
a Lot outside of an enclosed building for not longer than 36 hours, unless
substantially screened from view from beyond the Lot. As to PWC, ATVs and other
such vehicles, a trailer accommodating up to two (2) such recreational vehicles is
herein to be construed as one (1) such recreational vehicle. No such storage of any
vehicles of any kind is permitted upon the Common Lands.
4.6 No noxious or offensive trade or activity and no activity which is in violation of any
law, ordinance, statute or governmental regulation shall be conducted in the
Development, nor shall anything be done which may be or become an annoyance or
nuisance to the other Lot Owners in the Development.
4.7 Unless otherwise restricted by applicable zoning laws or other governmental
regulations, if any, primitive camping is permitted only in area(s) designated by
Developer. Any and all rubbish and debris associated with camping activities in such
designated areas shall be removed upon departure. The forgoing restrictions
regulating camping on a Lot shall not be construed to regulate the typical "backyard
camping" activity of children.
4.8 Propane gas tanks shall either be located underground upon the Lot or shall be located
in such areas of the Lot so as to be as inconspicuous as possible and screened from
direct view from beyond the Lot with shrubbery or other vegetative materials.
4.9 Any discharge of firearms for hunting or other such recreational firearm use is
prohibited on the Development.
4.10 Until such time as Developer has sold all Lots in the Development, or earlier at the
discretion of the Developer, no signs or other advertising devices shall be displayed
upon Lots, including "For Sale" signs, except those signs placed by the Developer
and except for "For Sale" signs on Lots upon which the construction of a dwelling
has commenced or has been completed.
4.11 No animals shall be kept on any Lot except common, indoor, household pets. No
Owner shall have more than three (3) permanent household pets. Such pets may not
be kept nor bred for any commercial purpose and shall have such care and restraint so
as not to be obnoxious or offensive on account of noise, odor or unsanitary
conditions. No savage or dangerous animal shall be kept anywhere upon the
Development. No Lot Owner shall permit his pet(s) to run unsupervised outside of
his Lot.

4.12 Only satellite dishes of thirty-six (36) inches or less in diameter are permitted and
must be attached to the principal dwelling in a location that is as inconspicuous as
reasonably possible. In the event that a satellite dish is unable to function properly
when attached to the principal dwelling, then the alternative location of the satellite
dish must be specifically approved by the Committee, along with possible additional
screening measures therefor.
4.13 No Lot Owner may be permitted to construct and/or use and operate any external
radio and/or television antenna for broadcasting or reception purposes without the
approval of the Committee.
4.14 Above-ground swimming pools shall not be permitted, unless said pool is engineered
and constructed in such a fashion as to blend into the plan for the development of the
Lot and in such a manner so as to be aesthetically and architecturally pleasing and
using a masonry or stone retaining wall on the exposed vertical portion of the pool.
Any such construction of an above-ground pool contemplated shall first have the
approval of the Committee before construction commences.
4.15 Lot Owners shall be permitted to rent the dwelling upon their Lot, but no rental
period shall be shorter than three (3) months in duration.
ARTICLE 5
COMMON LANDS -USES PERMITTED AND PROHIBITED
The Developer has planned for a variety of proposed amenities throughout the
Development. These proposed amenities include, but are not limited to, a community
pavilion, hiking trails, trout pond, picnic areas, camping area(s), viewing areas, lookout
platform and open spaces. These common areas and amenities will be owned by the
Association.
CAMPING AREA
5.1 Only tent-type camping is permitted within the camping area(s) designated by the
Developer and such tent camping shall be in accordance with rules and regulations
promulgated by the Association. Said rules and regulations shall be equitable in
accommodating recreational opportunity for Lot Owners for camping.
6

COMMUNITY PAVILION
5.2 The Developer has provided an area upon the Common Lands for the construction of
a community pavilion for the exclusive use of Lot Owners and their guests. No
activity which is in violation of any law, ordinance, statute or governmental
regulation shall be conducted in the pavilion area, nor shall anything be done which
may be or become an annoyance or nuisance to the other Lot Owners in the
Development.
5.3 Camping is prohibited within the pavilion area.
TRAII.S AND OPEN SPACES -Those Common Lands located throughout the Development,
depicted as such on plat(s) of surveys of the Development, now existing or hereafter
established upon Common Lands.
5.4 No motorized vehicles are permitted upon the Common Lands other than the
Development's roadways, except for normal maintenance and repair activities. All
trails located within the Development are specifically not intended for motorized
vehicle use other than uses in conjunction with maintenance and repair activities.
ARTICLE 6
CHARACTER OF BUILDINGS AND CONSTRUCTION
6.1 The Developer recognizes that there can be an infinite number of concepts and ideas
for the development of the Lots. The Developer wishes to encourage the formulation
of new and/or innovative concepts and ideas. Nevertheless, for the protection of all
Lot Owners, and for the preservation of the Developer's concept for the
Development, the Developer wishes to make certain that any development of a Lot
will maintain the natural beauty of the Development and blend man-made structures
into the natural environment to the extent reasonably possible.
6.2 The completion of any structure or improvement being constructed upon a Lot shall
be completed within one (1) year from the date upon which construction was
commenced. Exceptions may be granted by the Committee where such completion is
impossible because of reasons beyond the control of an Owner or builder or when
continuation would result in great hardship to the Owner and/or builder, as
determined by the Committee. If an extension to complete construction is needed, the
Owner or builder shall submit to the ARC a written petition for such extension and
the reasons therefor. Occupancy of a dwelling shall only occur after completion of
construction. Accumulations of refuse and debris from construction activity upon a
Lot shall be permitted, but such accumulations shall be permitted only in construction
dumpsters and filled dumpsters shall be removed from the Development on not less
than a bi-weekly schedule. A portable toilet shall be required for each dwelling
construction site and shall be situated on the Lot so as not to unreasonably visually
impact adjacent Lot owners and visitors to the Development.
7

6.3 No building shall be erected on any Lot except a single, private dwelling to be
occupied by not more than one (1) family for residential purposes, and recreational
uses incidental thereto, only. All attached, and detached garages if any, and any
outbuilding must be architecturally related to and must match the overall color
scheme of the dwelling and must be constructed only of materials permitted for the
construction of residences. All dwellings shall have a minimum total of fourteen
hundred (1,400) square feet of finished living area on the first floor, wholly above
grade, excluding any garage, basement and porch.
6.4 All exteriors shall be composed of natural wood (e.g. redwood, cedar or logs), brick,
stone, architectural block, stucco, masonry shake, cement board products whose
quality and appearance are equal to or exceed that of HardiPlank®, and other high-
quality exterior materials that may be approved by the ARC. Lot Owners shall
complete the exterior of any dwelling in natural hues with flat finishes. No gaudy or
garish colors are permitted. Exterior colors which, in the sole judgment of the
Committee, stand in stark contrast to the land and vegetation on the Development are
prohibited. No aluminum or vinyl siding will be allowed, except for such uses as
gutters and soffits and such gutters and soffits shall be painted to match the trim of
the dwelling. Modest amounts of vinyl shake in detail areas, such as on gables, may
be permitted by the ARC.
6.5 No exposed concrete or concrete blocks shall be permitted on any exterior, except for
foundation walls, which may be exposed to a maximum height of eighteen inches
(18") above the ground level (grade). Any concrete or concrete block wall which
exceeds eighteen inches (18") in height above finished grade must be covered with an
exterior finish material approved by the ARC.
6.6 All drainage shall be controlled so as to avoid damage or erosion to adjacent Lots
and/or Common Lands. A rock/gravel entrance to the Lot shall be established at the
time of initial site clearing and grading and maintained until a permanent drive is
installed. All disturbed areas must be permanently seeded and stabilized within ten
(10) days of establishing final grade around the dwelling and the Owner or contractor
shall install temporary seeding and mulching on all disturbed areas during
construction. Silt fencing shall be installed on the lower elevation portions of
disturbed areas.
6.7 The principal roof components on all structures shall have a pitch of at least 7:12. All
roofing materials used on structures shall be of dark colors or of a weathered, natural
appearance and, in the case of asphaltic materials be, at a minimum, 25-year rated
architectural-grade laminated shingles that have araised-relief surface. In the
particular case of metal roofs, those shall be permitted in darker shades of red, brown
and green or other colors, all at the discretion of the ARC.
6.8 Modular Homes or Mobile Homes shall not be permitted. Campers, basement homes,
tents, shacks, garages, barns or other outbuildings shall not be used as a temporary or

permanent residence. A-frame, earthberm, underground and dome homes are
prohibited.
6.9 All construction materials utilized shall satisfy all applicable building code
requirements.
6.10 Lot Owners are required to connect their respective driveways to the paved roadways
and their respective utility lines to the utility leads located within the easement areas
provided therefor. All utility service lines constructed by Lot Owners within the
Development shall be located underground.
6.11 All driveways shall be constructed as a paved (asphalt and/or concrete), brick, fixed-
stone surface, or other high quality materials with prior approval of the Committee,
and have an improved travel path of at least twelve (12) feet in width. Culverts shall
be installed where necessary and must be, at a minimum, twelve (12) inches in
diameter, fourteen (14) feet in length and with adry-stacked stone wall at each end.
6.12 No structure, other than decorative fencing, landscaping elements and mailboxes,
shall be located closer than thirty (30) feet from the right-of--way line of the roadways
in the Development, unless topographical conditions upon the Lot, as determined by
the ARC, would constrain structure positioning upon the Lot such that structures
would be required to be located within said thirty (30) foot area from right-of--way
line. No part of any building shall be placed within thirty (30) feet of any rear Lot
line and no part of any building shall be located closer than twenty-five (25) feet from
any side Lot line.
6.13 Located throughout the Development are many intermittent and perennial streams
that are classified as "trout waters". The North Carolina Department of Environment
and Natural Resources (DENR) has established a riparian buffer zone adjacent to said
streams which extend landward from the edge of the streams to twenty-five (25) feet
in width from the top of bank of the stream. In conjunction therewith, DENR has
promulgated regulations designed to protect the quality and integrity of these valuable
natural resources. Said regulations are hereby incorporated by reference into the
Declaration and further set forth below.
RECITALS & CONSERVATION PURPOSES
A. Declarant is the sole owner in fee simple of the certain Conservation Property
(Property) being approximately 90 acres, more particularly described in Exhibit A attached
hereto and by this reference incorporated herein; and
B. The purpose of this Conservation Declaration is to maintain wetland and/or
riparian resources of fifty (50) feet in width from the top of perennial stream banks and
twenty-five (25) feet in width from the top of intermittent stream banks and other natural
values of the Property, and prohibit the use or development of the Property for any purpose
or in any manner that would conflict with the maintenance of the Property in its natural
condition. The preservation of the Property in its natural condition is a condition of
Department of the Army permit Action ID 200632735 issued by the Wilmington District
9

Corps of Engineers (Corps), required to mitigate for unavoidable impacts to waters of the
United States authorized by that permit, and this Conservation Declaration may therefore be
enforced by the United States of America.
NOW, THEREFORE the Declarant hereby unconditionally and irrevocably declares that the
Property shall be held and subject to the following restrictions, covenants and conditions as
set out herein, to run with the subject real property and be binding on all parties that have or
shall have any right, title, or interest in said property.
ARTICLE L PROHIBITED AND RESTRICTED ACTIVITIES
Any activity on, or use of, the Property inconsistent with the purposes of this Conservation
Declaration is prohibited. The Property shall be maintained in its natural, scenic, and open
condition and restricted from any development or use that would impair or interfere with the
conservation purposes of this Conservation Declaration set forth above.
Without limiting the generality of the foregoing, the following activities and uses are
expressly prohibited or restricted.
A. Disturbance of Natural Features. Any change disturbance, alteration or impairment
of the natural features of the Property or any introduction ofnon-native plants and/or animal
species is prohibited.
B. Construction. There shall be no constructing or placing of any building, mobile
home, asphalt or concrete pavement, billboard or other advertising display, antenna, utility
pole, tower, conduit, line, pier, landing, dock or any other temporary or permanent structure
or facility on or above the Property except for the allowance of a primitive walking path from
said lot through protected buffer to access the stream and up to a 10' by 10' area adjacent to
the stream for a park bench or similar seating.
C. Industrial, Commercial and Residential Use. Industrial, residential and/or
commercial activities, including any right of passage for such purposes are prohibited.
D. Agricultural, Grazing and Horticultural Use. Agricultural, grazing, animal
husbandry, and horticultural use of the Property are prohibited.
E. Vegetation. There shall be no removal, burning, destruction, harming, cutting or
mowing of trees, shrubs, or other vegetation on the Property except for the allowance of a
primitive walking path from said lot through protected buffer to access the stream and up to a
10' by 10' area adjacent to the stream for a park bench or similar seating.
F. Roads and Trails. There shall be no construction of roads, trails or walkways on the
property except for the allowance of a primitive walking path from said lot through protected
buffer to access the stream and up to a 10' by 10' area adjacent to the stream for a park bench
or similar seating.
G. Si na-e. No signs shall be permitted on or over the Property, except the posting of
no trespassing signs, signs identifying the conservation values of the Property, signs giving
directions or proscribing rules and regulations for the use of the Property and/or signs
identifying the Grantor as owner of the property.
H. Dumping or Storage. Dumping or storage of soil, trash, ashes, garbage, waste,
abandoned vehicles, appliances, machinery or hazardous substances, or toxic or hazardous
waste, or any placement of underground or aboveground storage tanks or other materials on
the Property is prohibited.
I. Excavation, Dredging or Mineral Use. There shall be no grading, filling,
excavation, dredging, mining or drilling; no removal of topsoil, sand, gravel, rock, peat,
10

minerals or other materials, and no change in the topography of the land in any manner on
the Property, except to restore natural topography or drainage patterns.
J. Water Quality and Drainage Pattern. There shall be no diking, draining, dredging,
channeling, filling, leveling, pumping, impounding or related activities, or altering or
tampering with water control structures or devices, or disruption or alteration of the restored,
enhanced, or created drainage patterns. In addition, diverting or causing
or permitting the diversion of surface or underground water into, within or out of the
easement area by any means, removal of wetlands, polluting or discharging into waters,
springs, seeps, or wetlands, or use of pesticide or biocides is prohibited.
K. Development Rights. No development rights that have been encumbered or
extinguished by this Conservation Declaration shall be transferred pursuant to a transferable
development rights scheme or cluster development arrangement or otherwise.
L. Vehicles. The operation of mechanized vehicles, including, but not limited to,
motorcycles, dirt bikes, all-terrain vehicles, cars and trucks is prohibited.
M. Other Prohibitions. Any other use of, or activity on, the Property which is or may
become inconsistent with the purposes of this grant, the preservation of the Property
substantially in its natural condition, or the protection of its environmental systems, is
prohibited.
ARTICLE II. ENFORCEMENT & REMEDIES
A. This Declaration is intended to ensure continued compliance with the mitigation
condition of authorizations issued by the United States of America, U.S. Army Corps of
Engineers, Wilmington District, and therefore may be enforced by the United States of
America. This covenant is to run with the land and shall be binding on all parties and all
persons claiming under the Declarant.
B. Corps, its employees and agents and its successors and assigns, have the right, with
reasonable notice, to enter the Property at reasonable times for the purpose of inspecting the
Property to determine whether the Declarant, Declarant's representatives, or assigns are
complying with the terms, conditions and restrictions of this Conservation Declaration.
C. Nothing contained in this Conservation Declaration shall be construed to entitle
Corps to bring any action against Declarant for any injury or change in the Conservation
Property caused by third parties, resulting from causes beyond the Declarant's control,
including, without limitation, fire, flood, storm, and earth movement, or from any prudent
action taken in good faith by the Declarant under emergency conditions to prevent, abate, or
mitigate significant injury to life, damage to Property or harm to the Property resulting from
such causes.
ARTICLE III. PUBLIC ACCESS
A. This Conservation Declaration does not convey to the public the right to enter the
Property for any purpose whatsoever.
ARTICLE IV. DOCUMENTATION AND TITLE
A. Conservation Property Condition. The Declarant represents and acknowledges that
the Property is currently undeveloped land, with no improvements other than any existing
utility lines, Declarations and rights of way.
B. Title. The Declarant covenants and represents that the Declarant is the sole owner
and is seized of the Property in fee simple and has good right to make the herein Declaration;
that there is legal access to the Property, that the Property is free and clear of any and all
encumbrances, except Declarations of record.
11

ARTICLE V. MISCELLANEOUS
A. Conservation Purpose.
(1) Declarant, for itself, its successors and assigns, agrees that this
Conservation Property shall be held exclusively for conservation purposes.
B. Entire Agreement. This instrument sets forth the entire agreement of the parties
with respect to the Conservation Declaration and supersedes all prior discussions,
negotiations, understandings or agreements relating to the Conservation Declaration. If any
provision is found to be invalid, the remainder of the provisions of this Conservation
Declaration, and the application of such provision to persons or circumstances other than
those as to which it is found to be invalid, shall not be affected thereby.
C. Recording. Declarant shall record this instrument and any amendment hereto in
timely fashion in the official records of Transylvania County, North Carolina, and may re-
record it at any time as may be required to preserve its rights.
D. Environmental Condition of Conservation Property. The Declarant warrants and
represents that to the best of its knowledge after appropriate inquiry and investigation: (a) the
Property described herein is and at all times hereafter will continue to be in full compliance
with all federal, state and local environmental laws and regulations, and (b) as of the date
hereof there are no hazardous materials, substances, wastes, or environmentally regulated
substances (including, without limitation, any materials containing asbestos) located on, in or
under the Property or used in connection therewith, and that there is no environmental
condition existing on the Property that may prohibit or impede use of the Property for the
purposes set forth in the Recitals.
6.14 Decorative, split-rail fencing of the standard two-rail variety (or an equivalent type of
fencing that by virtue of material, aesthetics, color, height and opacity provides the
same natural appearance) shall be permitted. Metal and chain link fencing is
specifically prohibited. Safety fencing surrounding in-ground swimming pools must
be of wood, stone, wrought iron (and its synthetic imitations) and other natural
material construction, but in no case may such fence be taller than the minimum
required by code, if any. All other types of fencing shall be prohibited anywhere on
the Development other than "invisible" fencing for pet control.
6.15 Each Lot Owner shall be responsible for any damage to the Common Lands which
occurs as a result of construction on the Owner's Lot and all such damage shall be
repaired within thirty (30) days of occurrence at the expense of the responsible Lot
Owner.
6.16 The size, color, style, location and other attributes of the mailbox and/or newspaper
receptacle for any residence shall be as specified by the Developer and/or ARC.
6.17 Each dwelling shall have, at a minimum, one (1) attached, two (2) car garage.
Attached garages shall not exceed fifty (50) percent of the square footage of living
area of the dwelling located on the first floor wholly above grade. In such instances
where constructing an attached garage would cause undue hardship to a Lot Owner
due to topographical features on the Lot, the ARC may grant a variance to a Lot
Owner for the construction of a detached garage. A Lot Owner may construct not
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more than one outbuilding upon a Lot and any detached garage shall be deemed the
equivalent of an outbuilding. No permitted outbuilding shall have a building
footprint greater than nine-hundred (900) square feet.
6.18 All contracted construction work must be performed by properly licensed contractors.
6.19 No Owner shall burn any trash, garbage or similar refuse on the Development. Lot
Owners are permitted to periodically burn leaves and other such vegetative materials
upon their Lot, but prior to burning Lot Owners must obtain a burning permit from
the United States Forest Service.
6.20 No petroleum-based products or other potentially hazardous or toxic substance may be
disposed of on the Development.
ARTICLE 7
THE ROUND MOUNTAIN FALLS PROPERTY OWNERS ASSOCIATION
7.1 Lot Owners shall automatically, by virtue thereof, become a member of the Round
Mountain Falls Property Owners Association, a North Carolina non-profit corporation
organized to further and promote the common interests of Owners in the
Development. The Association is entitled to carry on such business as is customary
of such an Association and in such manner as prescribed by its Bylaws, and all in
accordance with the Act.
7.2 As a member of the Association, each Lot Owner agrees for himself or herself, and
his or her heirs, successors and assigns, to pay to the Association any dues,
assessments for maintenance charges and costs or fines (collectively, the "Dues") as
may from time to time be levied by the Association for maintenance, repairs,
improvements, insurance, license fees or for any other lawful purpose. The Dues
shall run with the land.
7.3 Dues may be assessed annually and from time to time to meet the needs and
commitments of the Association. Initially, the Dues shall be $500.00 per Lot per year
for each Lot Owner. Dues shall be billed semi-annually ($250.00 per half year) to
Lot Owners on January 1 and June 1 of each year, except for year 2006, when the
first assessment shall not be billed until June 1, 2006, and shall be payable in full to
the Association by January 31 and June 31 of each year.
7.4 In the initial purchases of Lots from the Developer, purchasers shall pay to the
Association, at the closing of their purchase, a working capital deposit. This
contribution to the Association's account will be $1,000.00 per Lot.
7.5 Notice of the amount of any Dues, other than those specified in Section 7.4 above as
being due at closing, shall be given to the Lot Owner by first-class mail addressed to
his or her last known address as it appears on the rolls of the Association.
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7.6 Any Dues not paid on or before the due date established by the Association shall be
considered as being in default and shall bear interest at the highest rate then permitted
by law or such lesser rate as the Association may establish. Such interest and all
costs incurred by the Association in connection with the collection of any such
charges, including, without limitation, reasonable attorney fees, shall be collectible by
the Association and shall constitute a continuing lien upon any Lot within the
Development owned by the Lot Owner responsible therefor. The Association shall
have the right to proceed at law or in equity to foreclose such lien. All such charges
shall also be the personal obligation of the Lot Owner against whom they were
assessed.
7.7 Each Lot Owner (and in this specific context a Lot Owner does not mean a lessee)
shall have one vote in the voting affairs of the Association for each Lot owned. That
is to mean "one Lot, one vote".
7.8 Upon the sale of his Lot to another party, the "seller" Lot Owner shall provide the
Association with the name and mailing address of the "buyer" Lot Owner.
7.9 Insurance shall be obtained and maintained for:
(a) A policy of property casualty insurance covering any and all improvements
within the Common Areas in an amount determined by the Developer or
Association; and
(b) A policy of commercial liability insurance, covering each of the members of the
Board of Directors of the Association of not less than one million dollars
($1,000,000). The Association shall set and review limits annually.
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ARTICLE 8
ARCHITECTURAL REVIEW COMMITTEE
DEVELOPMENT/CONSTRUCTION
8.1 Site Development/Architectural Review Committee.
(a) An Architectural Review Committee (the "Committee", or ARC) shall be
established by the Association's Board of Directors and shall at all times consist of
the Developer and no less than three nor more than five persons appointed by the
Board, until such time as Developer elects not to serve, at which time the Board shall
appoint that member of the Committee as well. All members appointed by the Board
shall be Lot Owners or an outside consultant approved by the Developer or Board of
Directors. The Architectural Review Committee shall assist Lot Owners in
complying with the development restrictions set forth in this document or other
standards and guidelines that the ARC may set forth. Any new standards or guidelines
shall not be of lesser quality or lower standards than the ones set forth initially in this
Declaration.
(b) Except as otherwise provided herein, a majority of the members of the
Committee shall have the power to act on behalf of the Committee without the
necessity of a meeting and without the necessity of consulting the remaining members
of the Committee. The Committee may act only by written instrument setting forth
the action taken and signed by the members of the Committee consenting to such
action, provided further, however, that the Developer's consent shall be required for
all Committee action until such time as the Developer elects not to serve on the
Committee.
(c) If the Committee shall cease to exist or for any reason shall fail to function, the
Board of Directors of the Association shall serve as the Committee, and in the
absence of such a Board, the Committee shall be selected by a majority of Lot
Owners.
(d) The Committee shall have no affirmative obligation to be certain that all of the
restrictions contained in this Declaration are fully complied with and no member of
the Committee shall have any liability, responsibility or obligation, whatsoever, for
any decision or lack thereof, in the carrying out of duties as a member of such
Committee. Such Committee and its members shall have only an advisory function,
and the sole responsibility for compliance with all of the terms of this Declaration
shall rest with the Lot Owner. Each Lot Owner agrees to save, defend and hold
harmless the Committee and each of its members on account of any activities of the
Committee relating to such Lot Owner's Lot or improvements to be constructed on
such Lot.
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(e) The Committee, if it observes deviations from or lack of compliance with the
provisions of this Declaration, shall report such deviations or lack of compliance to
the Board of Directors of the Association for appropriate action.
8.2 Architectural Review Committee Approval.
(a) No Lot Owner shall construct, alter, or maintain any improvements on a Lot until
all of the following have been completed:
1. The Lot Owner has submitted to the Committee four (4) complete sets of
preliminary sketches showing floor plans, exterior elevations and an
outline of specifications for materials and finishes;
2. The Committee has approved the preliminary sketches; and
3. Upon approval of preliminary sketches, the Lot Owner has submitted to
the Committee four (4) copies of complete site plans and specifications
therefor, in a form satisfactory to the Committee, showing insofar as is
appropriate:
i. The size, dimensions and style of the improvements, including,
by way of illustration and not limitation, the dwelling, garage
and any outbuilding;
ii. The exterior design and building materials;
iii. The exterior color scheme;
iv. The approximate location of the improvements on the Lot,
including, by way of illustration and not limitation, the
dwelling, garage and outbuildings, if any;
v. The approximate location of the driveways, parking areas and
landscaping (including location and construction of all fences
or walls, recreational facilities, and utilities) and the types of
materials to be used therefor; and
vi. The vegetation proposed to be removed or altered in order to
accommodate construction, complete landscaping and enhance
views.
4. Such plans and specifications have been approved in writing by the
Committee.
5. An acknowledgment form is signed by both the Lot Owner and their
contractor wherein each acknowledges that they have read and understand
the provisions of the restrictions set forth in this Declaration.
(b) Approval for any plans that comply with the restrictions embodied in this
Declaration will not be unreasonably withheld, however, approval of the preliminary
sketches and detailed site plans and specifications described above may be withheld,
not only because of the noncompliance with any of the restrictions and conditions
contained herein (including the submission of an incomplete site plan), but also
because of the reasonable dissatisfaction of the Committee as to the location of the
structure(s) on the Lot, color scheme of said structure(s), finish, design, proportions,
shape, height, type or appropriateness of the proposed improvement or alteration, the
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materials used therein, the kind, shape or type of roof proposed to be placed thereon,
or because of its reasonable dissatisfaction with any matters or things which, in the
reasonable judgment of the Committee, would render the proposed improvement
inharmonious or out of keeping with the objectives of the Developer or the
improvements erected in the immediate vicinity of the Lot. The Committee may
exercise reasonable discretion to grant a variance to the restrictions and conditions
contained herein, when in the reasonable judgment of the Committee, the granting of
a variance would not render the proposed improvement inharmonious or out of
keeping with the objectives of the Developer or the improvements erected in the
immediate vicinity of the Lot.
(c) Any building, structure or improvement, including subsequent alterations or
modifications, shall be erected or constructed in substantial conformity with the site
plans and specifications approved by the Committee.
(d) If, at any time, a Lot Owner shall have submitted to the Committee site plans and
specifications in accordance with this section for a structure or alteration, and the
Committee has neither approved such plans and specifications within twenty one (21)
days from the date of submission nor notified the Lot Owner of its objection within
such 21-day period, then such site plans and specifications shall be deemed to have
been approved by the Committee, provided that the plans conform to, or are in
harmony with, these restrictions, the applicable zoning ordinance or other
governmental regulation, if any, and the existing structures in the Development, and
further provided that no suit to enjoin the construction has been commenced prior to
the completion of any improvements to the Lot.
(e) In the event that a Lot Owner shall file revised site plans and specifications for a
structure or alteration with the Committee after receiving objections from the
Committee with respect to original site plans and specifications, and the Committee
has neither approved them nor notified the Lot Owner of further objections within
fourteen (14) days from the date of submission, then such revised site plans and
specifications shall be deemed to have been approved by the Committee. The date of
submission is herein defined as the date upon which any member of the Committee
has received said site plans and specifications.
ARTICLE 9
LANDSCAPING AND GRADE
9. I It is the intent of the Developer that the Development retain a more, rather than less,
"wooded" aesthetic. Trees and vegetation may be completely removed from the area
of the actual "footprint" of the dwelling on a Lot and an area consisting of a twenty
(20) foot perimeter around said "footprint", along with necessary clearing for
driveway access, septic systems and other normal appurtenances (together such areas
are referred to as the "Home Site Area"). Reasonable additional vegetation clearing
outside of the Home Site Area is permitted in compliance with all governmental
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regulations and with the approval of the ARC, which permission shall not be
unreasonably withheld, in order to enhance views. Vegetation that is dead, damaged
or that poses a safety hazard may be removed from any Lot without the prior approval
of the ARC. In general, unless otherwise permitted by the ARC in writing, no Lot
Owner may clear more than twenty-five (25) percent of trees upon a Lot which are
eight (8) inches or more in diameter measured at breast height. Furthermore, "limbing
up" of trees, rather than the felling of trees, in order to create views shall be the
standard used for clearing limitations by the ARC, and in respect of the natural ground
cover of shrubs (Wild Azalea, Rhododendron, Mountain Laurel, etc.) upon the Lots,
"thinning", rather than wholesale clearing shall be the standard used for clearing
limitations by the ARC.
9.2 The grade of the Lots shall be maintained in harmony with the topography of the
Development and with respect to adjoining Lots.
9.3 In the interest of preserving the existing condition of natural slopes, Lot Owners shall
maintain groundcover to prevent water and wind erosion on their Lot. Natural
groundcover, woodchips or other natural plantings indigenous to the wooded area are
encouraged.
9.4 The location of all improvements shall be designed and located so as to be compatible
with the natural surroundings and with other Lots.
9.5 All land cuts caused by driveway installation and home construction must be
stabilized upon commencement of construction with appropriate erosion control
materials and in accordance with applicable permits.
9.6 All stumps, trees and brush cut or cleared during construction on any Lot must be
removed from the Development, except timber cut and saved for firewood.
9.7 All foundation landscaping must be completed according to the site plan approved by
the Committee within six (6) months upon completion of the dwelling and all
disturbed areas shall be stabilized or seeded and/or sodded within three (3) months
upon completion of the dwelling and properly maintained thereafter in order to
prevent erosion and any unsightly condition.
9.8 Silt fencing shall be installed in appropriate areas prior to site excavation, driveway
construction, landscaping activity and where exposed soil may be subject to runoff
and erosion. Said silt fences shall be maintained until the landscaping necessary to
prevent erosion of soil is completed.
9.9 No lawn ornaments, sculptures or statues shall be placed or permitted to remain on
any Lot without the prior written approval of the Committee.
9.10 No outdoor property night light of any kind shall be permitted to cast its direct rays
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beyond any of the boundary Lot lines of the Lot on which it is installed or
maintained. Holiday lighting and decoration schemes are expressly permitted during
the period from November 15th through January 5th of each year.
ARTICLE 10
EASEMENTS, RESERVATIONS AND DEDICATIONS
10.1 No Lot Owner shall be permitted to grant any right-of--way or easement across their
Lot, except to another Lot Owner or to benefit a Lot governed hereby. A Lot Owner
may not use all or any portion of his Lot to establish a road access to property not
included in the Development.
10.2 Any type of permanent construction or improvement within designated easement
areas, other than those provided for herein (and including the construction of
driveways and placement of mailboxes), is prohibited, unless approval is first
obtained from the ARC.
10.3 Easements for installation and maintenance of the utilities serving the Development
are hereby reserved within all road right of ways and other Common Lands within the
Development and, furthermore, Developer hereby reserves the right to make minor
encroachments upon Lots, in instances where topographical, soil or other limiting
conditions occur, to install underground utilities and drainage structures benefiting
the Development. Within these easements, no structure, planting or other material
shall be placed or permitted to remain, which may interfere with the installation and
maintenance of said utilities. Exception shall be made for the construction of
driveways required for normal access to each Lot and as approved by all regulating
bodies.
10.4 The Developer hereby reserves all minerals in the Development and, except as
otherwise provided herein, mineral exploration of any kind is expressly prohibited
upon the surface of the Development. Exploration and removal of minerals is
permitted by the Developer or its assigns or successors in title, but only if no surface-
disruptive activity or reduction of vertical support of the surface will occur.
10.5 In efforts to develop future phases of Round Mountain Falls, the Developer hereby
reserves the right to make minor and reasonable changes to those boundaries between
Common Lands and future phases of the Development.
10.6 The Developer hereby reserves the right unto itself and its assigns the right to expand
the Development by creating additional Lots on lands now owned or acquired in the
future by the Developer, and to extend and construct roadways and utilities, and any
and all appurtenant structures normally associated therewith, across, under and
through Common Lands, in order to access and develop lands abutting the
Development, and to do anything necessary and proper in the furtherance of its
development aims in respect of such lands, all in accordance with the Act. Any such
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future expansion of the Development will be in keeping with the nature of the
Development and any Lots created through such development shall become Lots in
the Development and be governed by this Declaration.
ARTICLE 11
RULES AND REGULATIONS
The Association may promulgate rules and regulations specifically authorized hereunder and
such other rules and regulations as may be reasonably necessary or helpful to achieve the
quality of living in the Development desired by the Association. All Lot Owners and their
guests and invitees shall abide by such rules and regulations, and the Association may
establish and levy fines for any failure to comply with the same.
ARTICLE 12
ASSIGNMENT OF RIGHTS
Except as specifically provided for elsewhere in this Declaration, all rights hereunder granted
to Lot Owners shall not be further assignable except as an appurtenance to and in conjunction
with the sale of their Lot.
ARTICLE 13
VIOLATION OF PROVISIONS
13.1 In the event that any Lot Owner violates the terms of this Declaration, the Developer
or the Association, not earlier than thirty (30) days after it has delivered written notice
to a Lot Owner of a violation of one or more of the provisions hereof, may enter upon
the violating Lot Owner's Lot and correct the violation and alter, repair or change any
building, structure or thing which may be upon the Lot in violation thereof, so as to
make such improvement or thing conform to such provisions.
13.2 The Developer or the Association may charge the Lot Owner in violation for the
entire cost of the work done pursuant to the provisions of this Section, which shall
become a lien against the Lot Owner's Lot.
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ARTICLE 14
ENFORCEMENT
14.1 In addition to any rights set forth in Article 13 for a violation or breach of any of the
provisions hereof, the Developer, the Association, any Lot Owner(s) or any municipal
governing authority shall have the right to proceed at law or in equity to prevent the
violation or breach of the provisions of this Declaration or to recover damages for
such violation and to foreclose any lien granted hereunder.
14.2 In any action or suit to enforce the provisions hereof, the prevailing party shall be
entitled to recover its reasonable attorney fees and other legal costs.
ARTICLE 15
DURATION AND EFFECT
The provisions hereof shall run with the Development and shall be binding upon all Lot
Owners and all persons claiming under them for a period of forty (40) years from the date
this Declaration is recorded, after which time said Declaration shall be automatically
extended for successive periods often (10) years each, unless an instrument, signed by the
requisite number of Lot Owners set forth in Article 16 hereof, has been recorded agreeing to
cancel, amend or change, in whole or in part, this Declaration.
ARTICLE 16
AMENDMENT
16.1 The Developer, so long as it owns any Lot in the Development, hereby reserves the
right to amend these covenants and restrictions without the consent of the Lot Owners
for any purpose, if the amendment does not materially alter or change the rights of a
Lot Owner.
16.2 These restrictions may be rescinded or amended, in whole or in part, by an
appropriate recorded written instrument executed and acknowledged by not less than
three-fourths (3/4) of the Lot Owners; provided, however, that any such rescission or
amendment must be acknowledged by all of the Lot Owners i£
(a) it changes the single-family nature of the Development; or
(b) it expands the rights of a Lot Owner to subdivide a Lot or
to place more than one house on a Lot; or
16.3 Any amendments shall become effective upon recordation of the amendment in the
Transylvania County Registry of Deeds. Notwithstanding the foregoing provisions of
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this Section, certain rights reserved herein by the Developer shall not be terminated
by any amendment without the consent of the Developer.
ARTICLE 17
SEVERABILITY
17.1 The invalidation of any one or more of the reservations and restrictions provided
herein, by judgment or court order, or the amendment of any one or more of the
restrictions as hereinabove provided, shall in no way affect any of the other
provisions herein, which shall remain in full force and effect.
17.2 In the event that there exist now or in the future regulations, federal, State, local or
otherwise, that are more restrictive than those contained herein, the more restrictive
regulation shall apply.
17.3 In the event this Declaration conflicts with the provisions of the Act, the Articles of
Incorporation or Bylaws of the Association, the hierarchy of control shall be the Act,
this Declaration, the Articles of Incorporation and the Bylaws of the Association, in
that order.
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IN WITNESS WHEREOF, the Developer has caused this instrument to be executed the 7th
day of December, 2005.
McKEOUGH LAND COMPANY, INC.
By:
Leo Kalinowski, Jr.
General Manager
STATE OF NORTH CAROLINA
COUNTY OF BUNCOMBE
Before me, the undersigned authority, a Notary Public in and for the State and County
aforesaid, personally appeared Leo Kalinowski, Jr., with whom I am personally acquainted
(or proved to me on the basis of satisfactory evidence), and who acknowledged himself upon
oath to be the General Manager of McKEOUGH LAND COMPANY, INC., an Illinois
corporation, and that he as such General Manager, being authorized so to do, executed the
foregoing instrument for the purposes therein contained and expressed, by signing the name
of the said corporation as such General Manager.
WITNESS my hand and official seal at office in said County this 7th day of December, 2005.
NOTARY PUBLIC
My commission expires:
PREPARED BY AND RETURN TO:
McKeough Land Company, lnc.
140 Airport Road,
Suite Q
Arden, North Carolina 28704
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