Declaration of Covenants and Restrictions
for Walden Townes
THIS
DECLARATION, dated for purposes of reference only this 11th day of November,
1996, by WALDEN TOWNES, INC. a North Carolina Corporation, hereinafter called
“Developer.”
WITNESSETH:
WHEREAS, Developer procured from Apex Properties, LLC,
a tract of land within the Walden Creek development, which tract of land is
more fully described in Exhibit A attached hereto (“Acquired Property”); and
WHEREAS, the Acquired Property was a portion of property
which Developer has optioned from Apex Properties, LLC which property is more
fully described on Exhibit B attached hereto (“Option Property”); and
WHEREAS, at the time of such acquisition, Developer was
assigned by Apex Properties, LLC a portion of the development rights of Apex
Properties, LLC, as reserved by Apex Properties, LLC under the Declaration of
Covenants, Conditions and Restrictioins for Walden Creek recorded in Book 6769,
Page 0677 et seq., Wake County Registry (“Master DeclartationJ; and
WHEREAS the Acquired Property is subject to the Master
Declaration; and
WHEREAS Article V of the Master Declaration provides
that Additional Covenants, as defined therein, may be created to further
encumber property subject to the Master Declaration, which rights are herein
being exercised by Developer, successor in interest to the development rights
reserved to Apex Properties, LLC under the Master Declaration; and
WHEREAS Developer has incorporated under the laws of
the State of North Carolina a non-profit corporation named Walden Townes
Homeowner’s Association, Inc. (the “Association”), for the purpose of
exercising the functions aforesaid and hereinafter more fully described;
NOW,
THEREFORE, Developer declares that the real property described on Exhibit A, is
and shall be held, transferred, sold, conveyed and occupied subject to the
covenants, restrictions, easements, charges and liens (sometimes referred to as
“Covenants and Restrictions”) hereinafter set forth.
Article I
Definitions
SECTION
1. The following words when used in this Declaration or any Supplemental
Declaration (unless the context shall prohibit) shall have the following
meanings:
“Association”
shall mean and refer to Walden Townes Homeowner’s Association, Inc.
“Common
Properties” shall mean and refer to those areas of land now or hereafter shown
on any recorded subdivision plat of the Properties or hereafter deeded to the
Association and intended to be devoted to the common use and enjoyment of the
Owners of the Properties, including improvements and recreational amenities
constructed thereon.
“Living
Unit” shall mean and refer to any portion of a building situated upon the
Properties designed and intended for use and occupancy as a residence by a
single family, whether as Owners or tenants.
“Lot” shall mean and refer to any plot of land shown upon
any recorded subdivision map of the Properties with the exception of Common
Properties as heretofore defined.
“Member”
shall mean and refer to all those Owners who are members of the Association as
provided in Article III, Section 1, hereof.
“Mortgagee”
shall include the noteholder of cestui que trust secured by deed of trust.
“Owner”
shall mean and refer to the record owner, whether one or more persons or
entities, of the fee simple title to any Lot or Living Unit situated upon the
Properties, but, notwithstanding any applicable theory of the deed of trust,
shall not mean or refer to the Trustee or cestui que trust unless and until
there has been a transfer of title pursuant to foreclosure or any proceeding in
lieu of foreclosure.
“Properties”
shall mean and refer to the real property described in Exhibit A made subject
hereto.
Article II
Property
Subject To This Declaration;
Additions
Thereto
Section
1. Properties. The real property which is, and shall be held, transferred,
sold, conveyed, and occupied subject to this Declaration, is that property more
particularly described on Exhibit A attached hereto. It is expressly
acknowledged that Living Units may be constructed within Lots on that property
shown on the Plat in different sequences, and from time to time. Declarant
reserves all rights, easements and privileges as may be necessary to allow
access upon or across any road right-of-way or any Common Property as may be
necessary or appurtenant site work, to allow such construction to continue,
which construction shall be allowed for as long as Developer has the right to
expansion as set out in Article II, Section II of this Declaration.
Section
2. Addition to Existing Property. Expansion.
Additional lands may become subject to this Declaration to the extentn such
lands are described on Exhibit B attached hereto.The additions authorized
hereunder may be made in one or more phases. Said additions shall be made by
filing of record a Supplemental Declaration of Covenants and Restrictions with
respect to the additional property desired to be annexed, which Supplemental
Declaration shall extend the scheme of these covenants and restrictions to such
property by adopting these Covenants and Restrictions by reference. Such
Supplemental Declaration may contain such complementary additons and
modifications of the Covenants and Restrictions contained in this Declaration
as may be necessary to reflect the different character, if any, of the added
properties and as are not inconsistent with the scheme of this Declaration. In
no event, however, shall such Supplemental Declaration revoke, modify or add to
the covenants established by this Declaration as to Lots as described in the
plat of the property shown on Exhibit A attached hereto. Said plat is recorded
in Book of Maps 1996, Page 950, Wake County Registry (the “Plat”). Any
annexation made hereunder must be completed on or before December 31, 2005. Any such amendment shall specify
the date upon which dues and assessments are payable for Lots annexed thereby.
Mergers.
Upon a merger or consolidation of the Association with another association, its
properties, rights and obligations may, by operation of law, be transferred to
another surviving or consolidated association or, alternatively, the
properties, rights and obligations of another association may, by operation of
law, be added to the properties, rights and obligations of the Association as a
surviving corporation pursuant to a merger. The surviving or consolidated
association
may administer the covenants and restrictions established by this Declaration
within the Property together with the covenants and restrictions established
upon any other properties as one scheme. No such merger or consolidation,
however, shall affect any revocation, change or addition to the covenants
established by this Declaration with the Property except as hereinafter
provided.
Article III
Membership
and Voting Rights in the Association
Section
1. Membership. Every person or entity who is a record owner of a fee or
undivided fee interest in any Lot or Living Unit or undeveloped and
undesignated land which is subject by covenants of record to assessment by the
Association shall be a Member of the Association, provided that any such person
or entity who holds such interest merely as a security for the performance of
an obligation shall not be a Member.
Section
2. Voting Rights. The Association shall have two classes of voting membership.
Class
A. Class A Members shall be all those Owners as defined in Section 1 with the
exception of the Developer. Class A Members shall be entitled to one vote for
each Lot or Living Unit in which they hold
the interests required for membership by Section 1. When more than one person
holds such interest or interests in any Lot or Living Unit all such persons shall be members, and the vote for such Lot or Living Unit shall be exercised as they among
themselves determine, but in no event shall more than one vote be cast with
respect to any such Lot or Living Unit.
Class
B. The Class B Members shall be the Developer. The Class B Member shall be
entitled to three votes for each Lot or Living Unit in which it holds interests required for Membership. The Class B
membership shall cease and become converted to Class A membership at the
earlier occurrence of the following events:
when the
total number of Class A Members equals or exceeds 75 percent of the total
number of Allowed Lots, as set out on Exhibit C attached hereto; or
January 1,
2000.
From and
after the happening of the earlier to occur of these events, the Class B Member
shall be deemed to be a Class A Member entitled to one vote for each Lot or Living Unit in which it holds the interests
required for membership under Section 1.
Article IV
Property
Rights in the Common Properties
Section
1. Members’ Easements of Enjoyment. Subject to the provisions of Section 3 of
this Article IV, every Member shall have a right and easement of enjoyment in
and to the Common Properties, including rights of access, ingress and egress to
andn from public streets and walkways and the right to park a motor vehicle in
areas specifically designated for such purposes; such easement shall be
appurtenant to and shall pass with the title to every Lot or Living Unit. In
addition, every Class A Member shall have the right and privilege of using the
designated parking spaces for the benefit of his or her Living Unit.
Section
2. Title to Common Properties. The Developer must relinquish the legal title to
the Common Properties to the Association prior to the transfer of any Lot or Living Unit included within the Properties.
Notwithstanding this fact, Developer reserves the right, until such time as
Developer’s right to record Supplemental Declaration expires, to go upon the
Common Properties for the purpose of constructing common use amenities thereon.
Furthermore, Developer reserves for the benefit of Developer, and for the
benefit of the Association and the owners of all Lots, the right to utilize all
drainage ways, retention ponds of the property described on Exhibit B, and
other adjacent properties subject to the Master Declaration.
Section
3. Extent of Members’ Easements. The rights and easements of enjoyment created
hereby shall be subject to the following:
the right
of the Association, in accordance with its Articles of Incorporation and
By-Laws, to borrow money for the purpose of improving the Common Properties and
in aid thereof to mortgage said properties. In the event of a default upon any
such mortage the lender’s rights thereunder shall be limited to a right, after
taking possession of such properties, to
charge admission and other fees as a condition to continued enjoyment by the
members and, if necessary, to open the enjoyment of such properties to a wider
public until the mortgage debt is satisfied, whereupon the possession of such
properties shall be returned to the Association and all rights of the Members
hereunder shall be fully restored; the right
of the Association to take such steps as are reasonably necessary to protect
the above-described properties against foreclosure;
the right
of the Association, as provided in its Articles of Incorporation and By-Laws,
to suspend the voting rights of any Member for any period during which assessment
remains unpaid, and for any period not to exceed 30 days for any infraction of
its published rules and regulations;
the legal
right of the Owner of property shown on the same plat to include portions of
the Common Properties as may be necessary for said Owner to qualify under
governmental requirements such as setback lines, open space, parking or other
aspects which may be needed for issuance of a building permit to be secured to
rebuild a damaged Living Unit; and
the right
of the Association to dedicate or transfer all or any part of the Common
Properties to any public agency, authority, or entity, or to Walden Creek
Homeowner’s Association, Inc., for such purposes subject to such conditions as
may be agreed to by Members, provided that no such dedication or transfer,
determination as to the purposes or as to the conditions thereof, shall be
effective unless an instrument signed by Members entitled to cast not less than
two-thirds of the votes of each class of membership has been recorded, agreeing
to such dedication, transfer, purposes or conditions, and unless written notice
of the proposed agreement and action thereunder is sent to every Member at
least 30 days in advance of any action taken.
Section 4. Use
of Recreational Facilities. To the extent that recreational facilities, as more
fully described hereinebefore, are constructed upon Common Properties, either
by the Developer or by the Association, the owners of all Lots shall have the
right of utilization of such recreational facilities, and all costs associated
therewith, for upkeep, maintenance and repair, shall be the obligation of the
Association, and assessments may be collected therefore as set out in Article V
hereinafter. Neither the Develop nor the Association is obligated to construct
such recreational amenities, nor are there any current plans to so construct
such amenities.
Article V
Covenant
for Assessments
Section
1. Creation of the Lien and Personal Obligations of Assessments. Except as
hereinafter specifically provided, each Owner of any Lot or Living Unit, by the acceptance of title thereto,
shall be deemed to covenant and agree to pay to the Association assessments as
outlines in this Declaration of Covenants and Restrictions. The assessment may
be classified as (A) Regular for (1) operation, maintenance, repair,
replacement and improvement of Common Properties, (2) maintenance and repair of
the premises of an Owner and (3) other purposes, and (B) Special for (1)
capital improvements to Common Properties and (2) maintenance, repair or
improvements of the premises of an Owner. These assessments are to be fixed,
established and collected from time to time as hereinafter provided.
The
Regular and Special assessments, together with such interest thereon and cost
of collection therefore as hereinafter provided, shall be a charge on the land
and shall be a continuing lien upon the property against which each such
assessment is made.
Each
such assessment, together with such interest thereon and cost of collection
thereof as hereinafter provided, shall also be the personal obligation of the
person who was the Owner of such property at the time when the assessment fell
due.
Section
2. Purpose of Assessment. The assessments levied by the Association shall be
used exclusively for the purpose of promoting the health, safety and welfare of
the Members and in particular of the improvement and maintenance (1) of
properties, services and facilities devoted to this purpose and related to the
use and enjoyment of the Common Properties and (2) of the Lots and Living Units
situated upon the Acquired Property. Without limitations, such uses shall
include satisfaction of the Association’s obligations regarding the Common
Properties to pay hazard and liability
insurance, ad valorem taxes, the payment of governmental assessments for the
pubic and private capital improvements made to or for the benefit thereof, the
repair, replacements and additions thereto, and for the cost of labor,
equipment, materials, management and supervision thereof.
Section
3. Amount of Assessment.Initial
Assessment. To and including December 31, 1996,
the initial annual assessment shall not be in excess of $900 per Lot, the exact amount of which shall be determined from
time to time as provided in subsection (d) of this Section 3.
Increase by
Association. From and after December 31, 1996, the annual assessment effective
for any year may be increased from and after January 1 of the succeeding year
by the Board of Directors, without a vote of the membership, by a percentage which
may not exceed the greater of 10 percent of the percentage increases reflected
in the U.S. City Average, Consumer Price Index – United States and selected
areas for urban wage earners and clerical workers, all items most recent index
and percentage changes from selected dates (published by the U.S. Bureau of
Labor Statistics, Washington, D.C.) or such other Index as may succeed the
Consumer Price Index, for the 12-month period ending the immediately preceding
October 1.
Increase by
Members. From and after December 31, 1996, the Regular assessment may be
increased by a percentage greater than permitted by this Article by an
affirmative vote of two-thirds or each class of Members who are voting in
person or by proxy, at a meeting duly called for such purpose, written notice
of which, setting for the purpose of the meeting, shall be sent to all Members
not less than 30 days nor more than60 days in advance of the meeting. The
limitations herein set forth shall not apply to any increase in assessments
undertaken as an incident to a merger or consolidation in which the Association
is authorized to participate under its Articles of Incorporation.
Criteria
for Establishing Annual Assessment. The initial Regular assessment shall not
exceed $900. In establishing the Regular assessment for any subsequent
assessment year, the Board of Directors shall consider all current costs and
expenses of the Association, any accrued debts, and reserves for future needs.
Working
Capital Fund. Each Owner, excepting the Declarant and those persons or entities
in the house building business, shall pay the sum equal to two months
Association dues into a working capital fund of the Association at the time of
transfer of said Lot to said Owner.
Section 4. Special
Assessments for Capital Improvements. In addition to the annual assessments
authorized by this document, the Association may levy, in as assessment year, a
Special assessment applicable to that year only for the purpose of defraying in
whole or in part, the cost of any construction, reconstruction, repair or
replacement of a capital improvement upon the Common Properties including
fixtures and personal property related thereto, provided that any such
assessment shall have the assent of not less than two-thirds of the votes of each
class of Members who are voting in person or proxy at a meeting duly called for
this purpose.
Section 5. Uniform
Rate of Assessment. Both Regular and Special assessments must be fixed at a
uniform rate for all Lots, on a per Lot basis, and may be collected on either a
monthly, quarterly, semi-annual or annual basis.
Section 6.
Quorum for any Action Authorized Under Sections 3 and 4. The quorum for any
Action Authorized Under Sections 3 and 4. The quorum required for any action
authorized by Sections 3 and 4 of this Article V shall be as follows:
At
the first meeting called, as provided in Sections 3, and 4 of this Article V,
the presence at the meeting of Members, or of proxies, entitled to cast 40
percent of all votes of each class of membership shall constitute a quorum. If
the required quorum is not forthcoming at any meeting, another meeting may be
called, subject to the notice requirements set forth in Sections 3 and 4, and
the required quorum at any such subsequent meeting shall be two-thirds of the
required quorum at the preceding meeting, provided that no such subsequent
meeting shall be held more than 60 days following the preceding meeting.
Section
7. Date of Commencement of Assessments; Due Dates. The Regular assessments
provided for herein shall commence as to all Lots on the date of transfer of a Lot from Developer to a third party. The first Regular
assessment shall be adjusted according to the number of months remaining in the
calendar year. The Board of Directors shall fix the amount of the Regular
assessment against each Lot at least 30 days in advance of each
Regular assessment period. Written notice of the Regular assessment dates shall
be established by the Board of Directors. The Association shall, upon demand
and for a reasonable charge, furnish a certificate signed by an officer of the
Association setting forth whether the assessments on a specified Lot have been paid. A property executed certificate of
the Association as to the status of assessments on a Lot is binding upon the Association as of the date of
its issuance.
Section
8. Duties of the Board of Directors. The Board of Directors of the Association
shall fix the date of commencement and the amount of the assessment against
east Lot or Living Unit for each assessment period at least 30 days in advance
of such date or period and shall, at that time, prepare a roster of the
properties and assessments applicable threreto which shall be kept in the
office of the Association and shall be open to inspection by any Owner.
Written
notices of the assessment shall thereupon be sent to every Owner subject
thereto; failure to provide a written notice shall indicate that the assessment
is unchanged from the previous assessment.
Section
9. Effect of Nonpayment of Assessment; Personal Obligation of the Owner; Liens;
Remedies of Association. If the assessments are not paid on the date they are
due (being the dates specified in Section 7 of this Article V), then such
assessment shall become delinquent and shall, together with such interest
thereon and cost of collection thereof as hereinafter provided, thereupon
become a continuing lien on the property which shall bind such property in the
hands of the then Owner, his heirs, devisees, personal representatives and
assigns. The personal obligations of the then Owner to pay such assessment,
however, shall remain his personal obligation for the statutory period and
shall not pass to his successors in title unless expressly assumed by them.
If
this assessment is not paid within 30 days after the delinquency date or a
written arrangement for payment consented to by the Association, the assessment
shall bear interest from the date of delinquency at the rate of 10 percent per
annum, and the Association my bring an action at law against the Owner
personally obligated to pay the same and/or to foreclose the lien against the
property, and there shall be added to the amount of such assessment a charge to
be determined by the Association of at least $150 for the cost of preparing and
filing the complaint in such action, and in the event a judgment is obtained,
such judgement shall include interest on the assessment as above provided and a
reasonable attorney’s fee of at least $50 to be fixed by the court together
with the costs of the action.
Section
10. Subordination of the Lien to Mortgages. The lien of the assessment provided
for herein shall be subordinate to the lien of any first deed of trust now of
hereafter placed upon the properties subject to assessment; provided, however,
that such subordination shall apply only to the assessments which have become
due and payable prior to a sale or transfer of such property pursuant to a
decree of foreclosure, a deed of foreclosure under power of sale or any other
transfer in lieu of foreclosure. Such sale or transfer shall not relieve such
property from liability for any assessments which
thereafter become due, nor from the lien of any such subsequent assessment.
Section
11. Exempt Property. The following property subject to this Declaration shall
be exempted from the assessments, charges and liens created herein: (a) all
properties to the extent of any easement or other interest therein dedicated
and accepted by the local public authority and devoted to public uses; (b) all
Common Properties as defined in Article 1, Section 1, hereof; (c) and all Lots
upon which there has been no Living Unit completed, with a certificate of
occupancy issued therefore.
Section
12. Walden Creek Homeowner’s Association, Inc. The Owner of each Lot and Living Unit shall be a member of the Walden
Creek Homeowner’s Association, Inc., as required by the terms, provisions and
conditions contained within the Master Declaration. As members therein, the
Owner of each Lot and Living Unit shall be required
to pay assessments to said association, in addition to assessments payable to
the Association as set out herein. The Board of Directors of the Association
shall have authority, but shall not be required, to enter into an agreement
with the Walden Creek Homeowner’s Association, Inc. whereby dues and
assessments payable to the Walden Creek Homeowner’s Association, Inc. shall be
collected by the Association, and remitted to the Walden Creek Homeowner’s
Association, Inc.
Article VI
Rights of
First Mortgagees
Section
1. Inspection of Books and Records. First Mortgagees shall have the right, upon
request and during normal business hours, to examine the books and records of
the Association.
Section
2. Notices of Default. Upon its written request, the holder of a first mortgage
upon a Lot or Living Unit shall be entitled to
written notification of any default by the Owner of said Lot or Living Unit in the performance of his obligations
pursuant to these Covenants or by the By-Laws of the Association, if such
default is not cured within 30 days.
Section
3. Payments by First Mortgagees. One or more first Mortgagees of Lots or Living
Units may, jointly or singly, in respect to the Common Properties, pay taxes or
other charges which are in default and have or may become a charge against same,
pay overdue hazard insurance premiums or secure new hazard insurance coverage
after policy lapse. The parties making
such expenditures shall be entitled to immediate reimbursement from the
Association.
Section
4. Prohibitions. Without having first received written approval from at least
75 percent of the first Mortgagees (based upon one vote for each Mortgagee) of
the Lots or Living Units, the Association may not:
by act or
omission seek to abandon, partition, subdivide, encumber, sell or transfer the real
property which is owned, directly or indirectly, by the Association; provided,
however, that the granting of easements for public utilities or for other
public purposes consistent with the intended uses of such property by the Assoiation
shall not be deemed a transfer within the meaning of this clause;
change the
method of determining obligatins, assessments, dues or other charges which may
be levied against the Owner of a Lot or Living Unit;
by act or
omission change, waive or abandon any scheme of regulations, or enforcement
thereof, pertaining to the architectural design of the exterior appearance of
Living Units, the exterior maintenance of Living Units, the maintenance of
party walls or common fences and driveways, or the upkeep of lawns and plantings
in the Properties.
Fail to
maintain hazard insurance or insurable improvements upon the Common Property in
an amount equal to 100 percent of the current insurable replacement cost;
Use hazard
insurance proceeds from losses to any Common Properties for other than the
repair, replacement or reconstruction of such improvements.
Article VII
Party Walls
Section
1. General Rules of Law to Apply. Each wall which is built as part of the
original construction of the Living Units upon the Acquired Property and placed
on the dividing line between the Lots shall constitute a party wall, and to the
extent not inconsistent with the provisions of this Article, the general rules
of law regarding party walls and of liability
for property damage due to negligent or willful acts or omissions shall apply
thereto.
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 had used the wall must restore
it as a party wall unless the other Owner agrees to the contrary in advance,
and the other Owners thereafter making
use of the wall 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 rules of law
regarding liability for negligent or willful acts or
omissions.
Section
4. Weatherproofing. 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 whole cost of furnishing the necessary
protection against such elements.
Section
5. 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
6. Arbitration. In the event of any dispute arising concerning a party wall, or
under the provisions of this Article, the Board of Directors of the Walden
Creek Homeowner’s Association, Inc. shall arbitrate and resolve any such disagreement,
and the decision of that group shall be final and conclusive of the question
involved.
Article
VIII
Aesthetics
Committee
Section
1. Review by Committee. No building, fence, wall or other structure nor any
planting or landscaping change (including removal of any tree) shall be
commenced, erected or maintained upon the Acquired Property by other than the
Developer nor shall any exterior addition to or change or alteration therein be
made until the plans and specifications showing the nature, kind, shape,
height, materials, and location of the same shall have been submitted to and
approved in writing as to harmony of external design and location in relation
to surrounding structures and topography by the Board of Directors of the
Association, or by an aesthetics committee composed of three or more
representatives appointed by the Board. In the event said Board, or its
designated committee, fails to approve or disapprove such design and location
within 45 days after said plans and specifications have been submitted to it,
approval will not be required and this Article will be deemed to have been
complied with fully. The Association shall have the right to bring an action to
enjoin any activity taken in violation of this Article.
Section
2. Delegation of Rights. The rights reserved under Section 1 of this Article
VIII may be assigned by either the Developer, as to rights reserved by the
Developer, or by the Association, as to the rights reserved to the Association
or to a Homeowner’s Association, Inc., or a committee appointed by the Walden
Creek Homeowner’s Association, Inc. Any such assignment must be by written
instrument which shall specify the particular rights being so assigned.
Article IX
Exterior
Maintenance
Section
1. Exterior Maintenance. In addition to maintenance upon the Common Properties,
the Association shall provide exterior maintenance upon each Lot and Living
Unit which is subject to assessment under Article V hereof as follows: paint,
repair, replace and care for roofs, gutters, down-spouts, exterior building
surfaces (other than windows, sky lights, screens and glass doors), trees,
shrubs, grass, walks and other exterior improvements. All other portions of any
Living Units, including, but not limited to, windows, screens, glass doors,
heating and air conditioning components, and utility components shall be
maintained in good condition by the Owner of each Living Unit. Failure of any
Owner to maintain that which said Owner is required to maintain in good
condition shall allow to the Association, following written notice to such
Owner specifying the work required to be accomplished, the right to cause such
work to be completed, with the cost thereof, plus a 15 percent management fee,
charged to Owner as a Special assessment.
Section
2. Special Assessments for Capital Improvements. In addition to the Regular
assessments authorized by this document, the Association may levy, in an
assessment year, a Special assessment applicable to that year only for the
purpose of defraying, in whole or in part, the cost of any construction,
reconstruction, repair or replacement for exterior maintenance of any Lot or
Living Unit, provided that any such assessment shall have the assent of
two-thirds of the votes of each class of Members who are voting in person or by
proxy at a meeting duly called for this purpose.
Section
3. Access at Reasonable Hours. For the purpose solely of performing the
exterior maintenance required by this Article, the Association, through its
duly authorized agents or employees, shall have the right, after reasonable
notice to the Owner, to enter upon any Lot or exterior of any Living Unit at reasonable hours of any day.
Article X
Common
Amenities
The
Association may impose uniform standards for mail collection facilities (which
may be a central facility or ordinary receptacles), waste disposal containers,
newspaper boxes, mailboxes and such other common features typically installed
on the exterior of a Living Unit, or on Common Properties. The owner of each Lot shall comply fully with all such standards adopted
by the Association.
Article XI
General
provisions
Section
1. Zoning. No Lot or Living Unit shall be used for
any purpose which is not permissible under applicable governmental residential
zoning regulations.
Section
2. Prohibited Activities. No noxious or offensive trade or activity shall be
carried on upon or in any Lot or Living
Unit, nor shall anything be done thereon which may be or become an annoyance or
nuisance to the neighborhood.
Section
3. Mobile Homes, etc. No trailer, mobile home, motor home, watercraft, basement, tent,
shack, garage, truck (other than small pickup truck) shall at any time be used
for human habitation temporarily or permanently, nor shall any structure of a
temporary character be used for human habitation.
Section
4. Rules. The Board of Directors shall have the authority to adopt rules for
the use of Common Properties and shall furnish a written copy of said rules to
the Owners. Any violation of such rules shall be punishable by fine and/or
suspension of the voting rights of the violating Owners. The Board or Directors
shall also have the power to adopt rules and regulations which prohibit or
limit the types of animals and household pets which may be kept in or about the
Lots or Living Units and which govern their allowance upon the Common
Properties.
Section
5. Duration. The covenants and restrictions of this Declaration shall run with
and bind the land, and shall inure to the benefit of and be enforceable by the
Association, or the Owner of any land subject to this Declaration, their
respective legal representatives, heirs, successors and assigns.
Section
6. Amendment. These covenants and restrictions may be amended during the first
20-year period by the vote of not less than 90 percent of each class of Members
cast in person or by proxy at a meeting duly called for this purpose, written
notice of which including the subject matter of the proposed amendment, shall
be sent to all Members at least 30 days in advance. Matters mentioned elsewhere in these covenants requiring
a greater percentage of Members for approval shall be so governed. Any such
amendment shall become operative and binding upon all Members and their Lots
when set forth in an amended Declaration of Covenants and Restrictions and
recorded in the office of the Register of Deeds of Wake County, North Carolina.
Section
7. Notices. Any notice required to be sent to any Member or Owner under the
provisions of this Declaration shall be deemed to have been property sent when
mailed, or otherwise delivered, to the last known address of the person who
appears as a Member, or Owner on the records of the Association at the time of
such mailing.
Section
8. Enforcement. Enforcement of these covenants and restrictions shall be by any
proceeding at law or in equity against any person or persons violating or
attempting to violate any covenant or restriction, either to restrain violation
or to recover damages, and against the land to enforce any lien created by
these covenants; and failure by the Association or any Owner to enforce any
covenant or restriction herein contained shall in no event be deemed a waiver
of the right to do so thereafter.
Section
9. Severability. Invalidation of any one of
these covenants or restrictions by judgment or court order shall in no way
affect any other provisions, which provisions shall remain in full force and
effect.
Section
10. Roads and Streets. Developer reserves a right of ingress and egress over
and across all roads and streets for purposes of accessing any property
described on Exhibit A, Exhibit B or adjoining properties subject to reasonable
rules and regulations concerning utilization as established by the Association
from time to time.
Section
11. Parking. Off street parking, owned by the Association, shall be available
for short term utilization of Owners and their guests, subject to reasonable
rules and regulations concerning utilization as established by the Association
from time to time.
Section
12. Insurance. The Association shall maintain as an expense of the Association
standard form hazard insurance policies insuring for the benefit of the Associatioin
and the owner of each Lot and each Living Unit the full,
insurable replacement costs for all improvements on Common Properties and on
each Lot, subject to a reasonable deductible
determined from time to time by the Association. The Association may maintain
for the benefit of the Owner of each Lot individual insurance policies for each Living Unit, or may purchase “group” or
“blanket” policies for all or any groupings of Living Units. The Association
shall act as insurance trustee for the benefit of the Owner of each and every
Lot, and the holder of each mortage thereon, and, upon payment of any claim,
the Association may, at is sole discretion, deliver the proceeds therefrom to
the Owner of the Living Unit damaged, or may maintain such funds with
disbursement agreements as may be deemed prudent by it to ensure the
reconstruction of improvements damaged or destroyed. Flood insurance need not
be maintained by the Association, but may be maintained if elected by the
Association. If not maintained by the Association, the Owner of each Lot may maintain such insurance at his sole discretion
and cost.
Section
13. Fences. Notwithstanding the restrictions contained in Article VIII, Section
1, approval shall be granted by the Association, or its designated aesthetics
committee, as to any fence constructed in substantially identical location and
of substantially identical materials as that fence constructed by Developer in
the model unit (Lot 1).
Section
14. Satellite Dishes. No satellite receiving dish shall be allowed exterior to
any Living Unit, no matter the size thereof.
Section
15. Amplification. The provisions of this Declaration are amplified by the
Articles of Incorporation and By-Laws of the Association; but no such
amplification shall alter or amend any of the rights or obligations of the
Owners set forth in this Declaratioin. Declarant intends that the provisions of
this Declaration on the one hand, and the Articles of Incorporation and the
By-Laws of the Association, on the other hand, be interpreted, construed, and
applied to avoid inconsistencies or conflicting results. If such conflict
necessarily results, however, Declarant intends that the provisions of this
Declaration control anything contained in such documents. In the case of the
conflict between the Articles of Incorporation and By-Laws for the Association,
the Articles of Incorporation shall control.
IN WITNESS THEREOF, Walden Townes, Inc., has
caused this instrument to be duly executed as of the day and the year first
above written.
Bylaws of Walden Townes
Homeowner's Association
Article 1
NAME AND PURPOSE OF THE CORPORATION
Section 1. Name:
This
corporation shall be known as WALDEN TOWNES HOMEOWNER’S ASSOCIATION INC.
Section 2. Purposes:
The
corporation has been organized for the following purposes:
A. To
promote the health, safety and welfare of the Owners and residents of the
Properties;
B. To
provide for the preservation of the values and amenities of the Properties.
C. To own,
acquire, lease, build, operate and maintain on the Properties open spaces and
other common areas and facilities for the benefit of the residents of the
Properties;
D. To
promote fellowship and friendship among its Members and to provide an area to
hold meetings and social gatherings for the better realization of such
purposes;
E. To
provide a forum for the expression of ideas and plans with regard to the
improvement of social, recreational and general living conditions in the
Properties and to take steps toward the fulfillment of said ideas and plans.
Article II
Definitions
Section 1. “Association” shall mean and refer to Walden Townes Homeowner’s Association, Inc., a nonprofit corporation organized and existing
under the laws of the state of North Carolina.
Section 2. “Properties” shall mean and refer to that
property encompassed within the parcel or tract of land described on Exhibit A
to the Declaration, and incorporated therein by amendment thereto.
Section 3. “Common Properties” shall mean and refer to those
areas of land now or hereafter so designated on any recorded subdivision plat
of a portion of the Properties or hereinafter deeded to the Association and
intended to be devoted to the common use and enjoyment of the owners of the
Properties, and more particularly shall mean and refer to commons, streets,
paths and shall include equipment and personal properties incident thereto, and
any other Properties owned and maintained by the Association for the common
benefit and enjoyment of the owners and residents of the Properties.
Section 4. “Lot” shall mean and refer to any plot of land
shown upon any recorded subdivision map of the Properties with the exception of
the Common Properties as heretofore defined.
Section 5. “Living Unit” shall mean and refer to any portion
of a building situated upon the Properties designed and intended for use and
occupancy as a residence by a single family whether as Owners or tenants.
Section 6. “Owner” shall mean and refer to the record owner,
whether one or more persons or entities, of the fee simple title to any Lot or
Living Unit situated upon the Properties but, notwithstanding any applicable
theory of the deed trust, shall not mean or refer to the Trustee or cestui que trust unless and until
there has been a transfer of title pursuant to foreclosure or any proceeding in
lieu of foreclosure.
Section 7. “Member” shall mean and refer to all those owners
who are members of the Association as provided in Article IV, Section I,
hereof.
Section 8. “Declaration” shall mean the Declaration of Covenants
and Restrictions recorded in Book ____, Page ________, Wake County Registry.
Section 9. “Developer” shall mean WALDEN TOWNESW, INC., a
North Carolina Corporation, or its successors and assigns.
Article III
LOCATION
The principal office of the
Association shall be located at Post Office 381, Wrightsville Beach, New
Hanover County, North Carolina, 28402.
Article
IV
MEMBERSHIP
Section 1. Every person or entity who is an Owner of a fee
or undivided fee interest in any Lot or Living Unit or undeveloped and
undesignated land which is subject to the Declaration shall be a Member of the
Association, provided that any such person or entity who holds such interest
merely as a security for the performance of an obligation shall not be a
Member.
Section 2. The rights of the
membership are subject to the payment of annual and special assessments levied
by the Association, the obligation of which assessments are made as provided by
Article V of the Declaration or any Supplemental Declaration of Covenants and
Restrictions to which the Properties are subject.
Section 3. the rights and privileges of any person to use
the recreational facilities and amenities of the Association, which person’s
interest in the Properties is subject to assessments, may be suspended by
action of the Directors during the period when the assessments remain unpaid;
but, upon payment of such assessments, his rights and privileges shall be
automatically restored . If the Directors have adoped and published rules and regulations governing the use of Common Properties and
facilities and the personal conduct of any person thereon, as provided in
Article X, Section 1, they may, in their discretion, suspend the rights and
privileges of any such person to use the recreational facilities and amenities
of the Association for violation of such rules and regulations for a period not
to exceed 30 days.
Article
V
VOTING RIGHTS
Section 1. The Association shall have two classes of voting
membership. The classes, and the voting privileges of each, are as specificed in the Declaration.
Section 2. Designation of Voting Representatives. If a Lot
or Living Unit is owned by one person his right to vote shall be established by
the record title to this Property. If a Lot or Living Unit is owned by more
than one person, or is under lease, the person entitled to cast the vote for
said Lot shall be designated by a certificate signed by all of the record
owners of said Property and filed with the secretary of the Association. If a
Lot or Living Unit is owned by a corporation, the person entitled to cast the
vote for said property shall be designated by a certificate of appointment
signed by the president, vice president or secretary of the corporation and
filed with the secretary of the Association. Such certification shall be valid
until revoked or until superseded by a subsequent certificate or until a change
in the ownership of the Lot or Living Unit.
Article
VI
PROPERTY RIGHTS AND RIGHTS OF ENJOYMENT
OF COMMMON PROPERTY
Section 1. Each Member shall be entitled to the use and
enjoyment of the Common Properties and facilities as provided in Article IV of
the Declaration.
Section 2. Any Member may delegate his rights of enjoyment
in Common Properties and facilities to members of his family who reside upon
the Properties. Such Member shall notify the Secretary in writing of the name
of any such person and of the relationship of the Member to such person. The
rights and privileges of such person are subject to suspension under Article
IV, Section 3, to the same extent as those of the Member.
Article VII
POWERS OF THE ASSOCIATION
Section 1. Additions to Properties and Membership.
Additions to the Properties may be made only in accordance
with the provisions of the Declartaion. Such
additions, when properly made under the Declaration, shall extend the
jurisdiction, functions, duties and membership of this Association to such
Properties. Where the applicable covenants require that certain additions be
approved by the Association, the approval must have the assent of two-thirds of
the vote of each class of Members who are voting in person or by proxy at a
meeting duly called for this purpose, written notice of which shall be mailed
to all Members at least 30 days in advance, and shall set forth the purposes of
the meeting.
Section 2. Mergers and Consolidations.
Subject to the provisions of the Declaration and to the
extent permitted by law, the Associaiton may
participate in mergers and consolidations with other nonprofit corporations
organized for the same purposes, provided that any such merger or consolidation
shall have the assent of two-thirds of the votes of each class of Members who
are voting in person or by proxy at a meeting duly called for that purpose,
written notice of which shall be mailed to all Members at least 30 days in
advance, and shall set forth the purpose of the meeting.
Section 3. Mortgages: Other Indebtedness.
The Association shall have power to mortgage its Common
Property only to the extent authorized under the Declaration.
The total debts of the Association, including the principal
amount of such mortgages outstanding at any time shall not exceed the total of
five years assessments current at that time, provided, that authority to exceed
said maximum in any particular case may be given by an affirmative vote of
two-thirds of the votes of each class of Members who are voting in person or by
proxy at a meeting duly called for this purpose, written notice of which shall
be mailed to all Members at least 30 days in advance and shall set forth the
purpose of the meeting.
Section 4. Dedication.
The Association shall have the power to dispose of its real
Properties only as authorized under the Declaration.
Article
VIII
BOARD OF DIRECTORS
Section 1. Generally.
The affairs of the Association shall be managed by a board
of three directors. The initial Board of Directors shall consist of three
directors who shall hold office until the first meeting of the Members of the
Association or until their successors are elected and qualified. At the first
membership meeting the Members shall elect three directors who shall hold
office until the first annual meeting. At the first annual meeting the Members
shall elect one director for a term of three years, one director for a term of
two years and one director for a term of one year. At each succeeding annual
meeting, the Members shall elect directors for a term of three years to fill
the expired terms.
Section 2. Vacancies.
Vacancies on the Board of Directors shall be filled by the
majority of the remaining directors, and any such appointed directors shall
hold office during the unexpired term of their predecessor.
Section 3. Removal.
Any director may be removed from the Board, with or without
cause, by a majority vote of the Members of the Associatioin.
Section 4. Compensation.
No director shall receive compensation for any service he
may render to the Association. However, any director may be reimbursed for his
actual expenses incurred in the performance of his duties.
Section 5. Action Taken Without a Meeting.
The directors shall have the right to take any action in the
absence of a meeting which they could take at a meeting by obtaining the
written approval of all the directors. Any action so approved shall have the
same effect as though taken at a meeting of the directors.
Article
IX
ELECTION OF DIRECTORS, NOMINATING COMMITTEE,
ELECTION COMMITTEE
Section 1. Election of the Board of Directors shall be by
written ballot as hereinafter provided. At such election the Members or their
proxies may cast, in respect of each vacancy, as many votes as they are
entitled to exercise uner the provisions of the
Declaration. The candidates receiving the largest number of votes shall be
elected. Votes may not be cast cumulatively.
Section 2. Nominations for election to the Board of
Directors shall be made by a Nominating Committee which shall be one of the
standing committees of the Association.
Section 3. The Nominating Committee shall consist of a
Chairman who shall be a member of the Board of Directors, and two or more
Members of the Association. The Nominating Committee shall be appointed by the
Board of Directors prior to each annual meeting of the Members to serve from
the close of such annual meeting until the close of the next annual meeting,
and such appointment shall be announced at each such annual meeting.
Section 4. The Nominating Committee shall make as many
nominations for election to the Board of Directors as it shall in its
discretion determine, but not less than the number of vacancies that are to be
filled. Such nominations may be made from among Members, as the committee in
its discretion shall determine. Additional nominations from the floor may be
made at the time of the election.
Section 5. All elections to the Board of Directors at and
after the first annual meeting shall be made on written ballot which shall
clearly list the names of the persons for whom the vote is being cast and the
terms of office if necessary. The Chairman of the meeting shall appoint one or
more persons to count the ballots and report the results.
Article
X
POWERS AND DUTIES OF THE BOARD OF DIRECTORS
Section 1. The Board of Directors shall have power:
A. To call special meetings of the Members whenever it deems
necessary, and it shall call a meeting any any time
upon written request of one-fourth of the voting membership;
B. To generally govern the Association in accord with the
Declaration and the Charter and By-Laws of this Association including, without
limitation, to appoint and remove at pleasure all officers, agents and
employees of the corporation, prescribe their duties, fix their compensation,
and require of them such security or fidelity bond as it may deem expedient.
Nothing contained in these By-Laws shall be construed to prohibit the employment
of any Member, officer or director of the Association in any capacity
whatsoever;
C. To establish, levy and assess, and collect the
assessments or charges referred to in the Declaration;
D. To adopt and publish rules and regulations governing the
use of the Common Properties and the personal conduct of the Members and their
guests thereon;
E. To exercise for the Association all powers, duties and
authority vested in or delegated to this organization, except those reserved to
the Members in the Declaration;
F. In the event that any member of the Board of Directors of
the Association shall be absent from three consecutive regular meetings of the
Board of Directors, the Board may by action taken at the meeting during which
said third absence occurs, declar the office of said
absent director to be vacant.
G. To prepare and enforce, directly or indirectly, the rules
and regulations governing activities within the boundaries of the Properties.
For purposes of enforcement of these rules, regulations and By-Laws against all
persons not Members, each Member of the Association is hereby delegated
sufficient authority from the officers and directors as will legally entitle
that Member to act on behalf of the Association.
Section 2. It shall be the duty of the Board of Directors:
A. To cause to be kept a complete record of all its acts and
corporate affairs and to present a statement thereof to the Members of the
annual meeting of the Members or any special meeting when such is requested in
writing by one-fourth of the voting membership.
B. To supervise all officers, agents and employees of this
organization, and to see that their duties are properly performed.
C. To employ and discharge such management as the Directors
may deem necessary.
D. To adopt a budget and authorize expenditures.
E. As more fully provided in Article V of the Declaration
applicable to the Properties:
1. To fix
the amount of the assessment against each Lot or Living Unit for each
assessment period at least 30 days in advance of such date or period and, at
the same time;
2. To
prepare a roster of the Properties and assessments applicable thereto which
shall be kept in the office of the Association and shall be open to inspection
by any Member and, at the same time;
3. To send written
notice of each assessment to every Owner subject thereto.
F. To issue, or to cause an appropriate officer to issue,
upon demand by any person a certificate setting forth whether any assessment
has been paid. Such certification shall be conclusive evidence of payment of
any assessment therein stated to have been paid.
Article
XI
DIRECTORS’ MEETINGS
Section 1. A regular meeting of the Board of Directors shall
be held at least every month at a day to be established by resolution.
Section 2. Notice of such regular meeting is hereby
dispensed with. If the day for the regular meeting shall fall upon a holiday,
the meeting shall be held at the same hour on the first day following which is
not a holiday and no notice thereof need be given.
Section 3. Special meetings of the Board of Directors shall
be held when called by any officer of the Association or by any two directors
after not less than three days’ notice to each director.
Section 4. The transaction of any business at any meeting of
the Board of Directors, however called and noticed, or wherever held, shall be
as valid as though made at a meting duly held after regular call and notice if
a quorum is present and, if either before or after the meeting each one of the
directors not present signs a written waiver of notice, or a consent to the
holding of such meeting, or an approval of the minutes thereof. All such
waivers, consents or approvals shall be filed with the corporate records and
made a part of the minutes of the meeting.
Section 5. The majority of the Board of Directors shall
constitute a quorum thereof.
Section 6. The secretary shall be ex-officio the secretary
of the Board of Directors and shall record the votes and keep the minutes of
all proceedings in a book to be kept for that purpose. He shall keep the
records of the Association. He shall record in a book kept for that purpose the
names of all Members of the Association together with their addresses as
registered by such Members.
Section 7. The treasurer shall receive and deposit in
appropriate bank accounts all monies of the corporation and shall disburse such
funds as directed by resolution of the Board of Directors, provided however,
that a resolution of the Board of Directors shall not be necessary for
disbursement made in the ordinary course of business conducted within the
limits of a budget adopted by the Board. Two officers of the corporation shall
co-sign on all checks.
Section 8. The treasurer shall keep proper books of account
and cause an annual review of the Association books to be made by a certified
public accountant, or by audit committee appointed by the Board of Directors,
at the completion of each fiscal year. He shall prepare an annual budget and an
annual balance sheet statement, and the budget and balance sheet statement
shall be presented to the membership at its regular annual meeting. He shall be
responsible for the preparation of such tax returns as may be required.
Section 9. Special Appointments.
The Board may elect such other officers as the affairs of
the Association may require, each of whom shall hold office for such period,
have such authority, and perform such duties as the Board may, from time to
time, determine.
Section 10. Resignation and Removal.
Any officer may be removed from office with or without cause
by the Board. Any officer may resign at any time giving written notice to the
Board, the president or the secretary. Such resignation shall take effect on
the date of receipt of such notice or at any later time specified therein, and
unless otherwise specified therein, the acceptance of such resignation shall
not be necessary to make it effective.
Section 11. Vacancies.
A vacancy in any office may be filled by appointment by the
Board. The officer appointed to such vacancy shall serve for the remainder of
the term of the officer he replaces.
Section 12. Multiple Offices.
The offices of the secretary and treasurer may be held by
the same person. No person shall simultaneously hold more than one of any of
the other offices.
Article
XII
COMMITTEES
Section 1. The standing committees
of the association shall be:
The Nominating Committee
The Maintenance Committee
The Aesthetics Committee
Unless otherwise provided herein,
each committee shall consist of a chairman and two or more members and shall
include a member of the Board of Directors for board contact. The committees
shall be appointed by the Board of Directors prior to each annual meeting to
serve from the close of such annual meeting until the close of the next annual
meeting, and such appointment shall be announced at each such annual meeting.
The Board of Directors may appoint such other committees as it deems desirable.
Section 2. The Nominating Committee
shall have the duties and functions described in Article IX.
Section 3. The Maintenance
Committee shall advise the Board of Directors on all matters pertaining to
maintenance, repair or improvements of the Common Properties and facilities of
the Association, and shall perform such other functions as the Board, in its
discretion, determines.
Section 4. The Aesthetics Committee
shall have the duties and functions described in Article VIII of the
Declaration. It shall watch for any proposals, programs or activities which may
adversely affect the residential values of the Properties and shall advise the
Board of Directors regarding the organization action on such matters.
Section 5. With the exception of
the Nominating Committee and the Aesthetics Committee (but then only as to the
functions that are governed by Article VIII of the Declaration), each committee
shall have power to appoint a subcommittee from among its membership and may
delegate to any such subcommittee any of its powers, duties and functions.
Section 6. It shall be the duty of
each committee to receive complaints from Members on any matter involving
corporate functions, duties, and activities within its field of responsibility.
It shall dispose of such complaints as it deems appropriate.
Article
XIII
MEETINGS OF MEMBERS
Section 1. The first annual meeting of the Members shall be
held at the place and time specified in the notice of the meeting; and regular
annual meetings will be held on the same month in succeeding years. If the day
for the annual meeting of the Members shall fall upon a holiday, the meeting
will be held at the same hour on the first day following which is not a
holiday.
Section 2. Special meetings of the Members for any purpose
may be called at any time by the president, the vice president, the secretary
or treasurer, or by any two or more members of the Board of Directors or upon
written request of Members who have a right to vote one-fourth of the votes of
the Class A membership.
Section 3. Notice of any meetings shall be given to the
Members by the secretary. Notice may be given to the Member wither personally,
by delivery to his mailbox, or by sending a copy of the notice thorugh the mail postage thereon fully prepaid to his
address appearing on the books of the corporation. Each Member shall register
his address with the secretary and notices of meeting regular or special shall
be sent at least six days in advance of the meeting and shall set forth in
general the nature of the business to be transacted, provided, however, that if
the business of any meeting shall involve an election governed by Article IX or
any action governed by the Articles of Incorporation or by the Declaration, the
required notice shall be given at least 15 days prior to the meeting.
Section 4. The presence of the meeting of Members entitled
to cast, or of proxies entitled to cast, ten percent of the votes of each class
of membership shall constitute a quorum for any action governed by these
By-Laws. Any action governed by the Articles of Incorporation or by the
Declaration applicable to the Properties shall require a quorum as therein
provided.
Section 5. The president, or on his absence the vice
president, shall preside at the meeting and the secretary shall be responsible
for recording minutes of the proceeding.
Article XIV
PROXIES
Section 1. At all corporate meetings of Members, each Member
may vote in person or by proxy.
Section 2. All proxies shall be in writing and filed with
the secretary. No proxy shall extend beyond a period of 11 months, and every
proxy shall automatically cease upon sale by Member of his Lot or other
interest in the Properties.
Article
XV
BOOKS AND RECORDS
The books, records and papers of the Association shall at
all times, during reasonable business hours, be subject to the inspection of
any Members.
Article
XVI
CORPORATE SEAL
The corporate seal of the Association shall consist of two
concentric circles between which are the words WALDEN TOWNES HOMEOWNER’S
ASSOCIATION, INC., Wake County, N.C., and in the center of which is inscribed
“SEAL”; and such seal, as impressed on the margin hereof, is hereby adopted as
the corporate seal of the Association.
Article XVII
AMENDMENTS
Section 1. These By-Laws may be amended at a regular or
special meeting of the Members, by a vote of two-thirds of a quorum of each
class of Members present in person or by proxy, provided that provisions of
these By-Laws which are governed by the Articles of Incorporation of this
Association may not be amended except as provided in the Articles of
Incorporation or applicable law; and provided further that any matter stated
herein to be or which is in fact governed by the Declaration may not be amended
except as provided in such Declaration.
Sectioin 2. In the case of any
conflict between the Articles of Incorporation and these By-Laws, the Articles
shall control; and in the case of any conflict between the Declaration and
these By-Laws, the Declaration shall control.
Article
XVIII
ASSESSMENTS
As more fully provided in the Declaration, each Member is
obligated to pay to the Association annual and special assessments which are
secured by a continuing lien upon the property against which the assessment is
made. Any assessments which are not paid when due shall be delinquent. If the
assessments which are not paid when due 30 days after the due date, the
assessment shall bear interest from the date of delinquency at the rate of 10
percent per annum, and the Association may bring an action at law against the
Owner personally obligated to pay the same or foreclose the lien against the
property, and interest, costs and reasonable attorney’s fees of any such action
shall be added to the amount of such assessment. No Owner may waive or
otherwise escape liability for the assessment provided for herein by non-use of
the Common Properties or abandonment of his Lot.
Article XIX
INDEMNIFICATION
Any
person who at any time serves or has served as a director, officer, employee or
agent of the Association, or in such capacity at the request of the
Association, or in such capacity at the request of the Association for any
other association, partnership, joint venture, trust or other enterprise, shall
have a right to be indemnified by the Association to the fullest extent
permitted by law against (a) reasonable expenses, including attorney fees,
actually and necessarily incurred by him in connection with any threatened or
pending or completed action, suit or proceeding, whether civil, criminal,
administrative or investigative, and whether or not brought by or on behalf of
the Association, seeking to hold him liable by reason of the fact that he is or
was acting in such capacity, and (b) reasonable payments made by him in
satisfaction of any judgment, money decree, fine, penalty, or settlement for
which he may become liable in any such action, suit or proceeding.
The
Board of Directors of the Association shall take all such action as may be
necessary and appropriate to authorize the Association to pay the
indemnification required by these By-Laws, including without limitation, to the
extent needed, making a good faith evaluation of the manner in which the
claimant for indemnity acted and of the reasonable amount of indemnity due him
and giving notice to, and obtaining approval of, the members of the
Association.
Any
person who at any time after the adoption of these By-Laws serves or has served
in any of the aforesaid capacities for or on behalf of the Association shall be
deemed to be doing or to have done so in reliance upon, and as consideration
for, the right of indemnification provided herein. Such right shall inure to
the benefit of the legal representatives of any such person and shall not be
exclusive of any other rights to which such person may be entitled apart from
the provisions of these By-Laws.
The
Association shall have authority to assess the members of the Association, in
the manner of a special assessment, to collect monies necessary to carry out
its obligations in accordance with the indemnity provisions of this Article.
Such assessment may be made, however, without vote of the members as it required
for other special assessments, as the payment of such obligation is an
obligatory, and not optional, payment of the Association.
IN
WITNESS THEREOF, we, being all the directors of the Walden Townes Homeowner’s Association, Inc., have hereunto set our hands and seals, this the
11th day of November, 1996.
MARSHA A. COWART
JOHN A. ELMORE, II
JACK LICHTNER
CERTIFICATION
I, the
undersigned, do hereby certify:
THAT I am
the duly elected and acting Secretary of Walden Townes Homeowner’s Association, Inc., a North Carolina nonprofit corporation, and,
THAT the
FORGOING OF By-Laws constitute the original By-Laws of said Association, as
duly adopted at a meeting of the Board of Directors thereof, held on the 11th day of November 1996.
Marsha K. Cowart
