THESE DECLARATIONS ARE FOR ILLUSTRATIVE PURPOSES ONLY AND ARE SUBJECT TO CHANGE AT THE SOLE DISCRETION OF THE DEVELOPER.

This Second Amended Declaration of Master Covenants, Conditions and Restrictions of The Crossings at Cane Creek Property Owners’ Association, Inc., (hereinafter referred to as the “Declaration”) is made and entered into by Mar-Comm and Associates, Inc., a Florida corporation (including its successors and assigns, hereinafter collectively referred to as "Declarant"). 

W I T N E S S E T H 

WHEREAS, the Declarant is the owner of the real property and improvements located in Buncombe County, North Carolina, and more particularly described as follows (hereinafter referred to as the “Property”):

See attached Exhibit "A";

WHEREAS, this Declaration shall subject the Property to certain covenants, conditions, restrictions, reservations, liens and charges as hereinafter set forth.

WHEREAS, restrictive covenants were originally filed by Developer in Deed Book 4500, Page 212, Buncombe County Registry and Joinders to this Second Amended Declaration of Master Covenants, Conditions and Restrictions of The Crossings at Cane Creek Property Owners’ Association, Inc. are attached hereto and made a part here of as Exhibit “C”.

NOW, THEREFORE, Declarant hereby declares that all of the Property shall be held, sold, conveyed, leased, mortgaged and otherwise dealt with subject to the easements, covenants, conditions, restrictions, reservations, liens and charges as hereinafter set forth, all of which are for the purpose of enhancing and protecting the value, desirability and attractiveness of the Property. Said easements, covenants, conditions, restrictions, reservations, liens and charges shall run with the Property, shall be binding upon all parties having and/or acquiring any right, title or interest in the real property described therein or in any part thereof, and shall inure to the benefit of and shall bind each and every person or entity, from time to time, owning or holding any interest in the Property.

ARTICLE I

The following words and terms when used in this Declaration, as amended (unless the context shall clearly indicate otherwise) shall have the following meanings:

"Architectural Review Board" or ARB shall refer to the board established by the Declarant and/or the Association.

"Articles" and "By-Laws" shall mean the Articles of Incorporation and the By-Laws of the Association as they may exist from time to time, a copy of which is attached hereto collectively as Exhibit “B”

"Association" shall mean The Crossings at Cane Creek Property Owners’ Association, Inc., a North Carolina non-profit corporation, its successors and assigns, and shall be a neighborhood association in accordance with the North Carolina Statutes.

“Board of Directors” or "Board" shall refer to the Board of the Association.

"Common Expenses" shall mean the actual and estimated expenditures, including reasonable reserves, for maintenance, operation and other services required or authorized to be performed by the Association with respect to the Common Property as may be found to be reasonably necessary by the Association pursuant to this Declaration, the By-Laws, and the Articles of Incorporation of the Association.

In no event shall any Lot Owner be required to pay more than its proportionate (1/51) share of any Common Expense or any liens or Assessments.

"Common Property" or "Common Area" shall mean and refer to all of the Property, less Lots 1 through 51 and the Easements (as hereinafter defined).  The term "Common Property" shall include any personal property acquired by the Association if said property is designated as "Common Property" in the bill of sale or instrument transferring such property.  Common Property is specifically reserved for the use and benefit of members of the Association, and is an appurtenant part of each Lot within the Association and Property.

“County” shall mean Buncombe County, North Carolina.

"Declarant" shall mean Mar-Comm and Associates, Inc., a Florida corporation, and its successors and assigns, who take title to any portion of the Property for the purpose of development and sale and are designated as the Declarant hereunder in a recorded instrument executed by the immediately preceding Declarant.

"Declaration" shall mean and refer to this Declaration of Master Covenants, Conditions and Restrictions of The Crossings at Cane Creek Property Owners’ Association, Inc. and include the same as it may, from time to time, be amended.

“Developer” shall mean Mar-Comm and Associates, Inc., a Florida corporation.

“Dwelling” shall mean the single family residence which is constructed on each Lot.

"Lot" shall mean any parcel of land shown upon any recorded subdivision map or plat of the Property upon which in the future will be located an attached or detached single-family residential dwelling, inclusive of the platted Lots 1 through 51 of the Property, as amended. 

“Majority” shall mean sixty seven percent (67%) of all persons or entities entitled to vote.

"Member" shall mean and refer to all those Lot Owners who are Members of the Association.

"Notice" shall mean delivery of any document by mail with postage prepaid to the last known address according to the records of the Association of the person or entity who appears as Owner in the records of the Association.  If available from the records of the Association, notices to an Owner will be sent to a tenant of Owner occupying the Property.  Notice to one of two or more co-owners shall constitute notice to all Owners.

"Owner" shall mean and refer to the record title owner as shown by the records of the Association (whether it be the Declarant, one or more persons, firms or legal entities) of fee simple title to any Lot located within the Property.  Owner shall not mean or refer to the holder of a mortgage or security deed its successors or assigns, unless and until such holder has acquired title pursuant to foreclosure or a proceeding or deed in lieu of foreclosure; nor shall the term "Owner" mean or refer to any lessee or tenant of an Owner.

“Plat” shall mean that certain plat of The Crossings at Cane Creek as recorded in Plat Book 85, Page 52 of the Public Records of Buncombe County, North Carolina.

“Preserve” shall mean the section of the Property that contains Lots 28, 30, 33 –51 collectively

“Preserve Assessment” shall mean an assessment levied solely against the Lot Owners in the Preserve for any amenity or improvement that is intended for the sole benefit and use of the Lot Owners in the Preserve.

“Properties” or “Property” shall mean and include the real property and improvements which is in the future subjected to this Declaration, as amended.

"Residential Property" shall mean any parcel of land located within the Property intended for use as a platted single family Lot, or improved property intended for use as a residential dwelling.

ARTICLE II

PROPERTY SUBJECT TO DECLARATION

Section 1.     Declaration.  The real property and improvements subject to this Declaration is the Property described in the attached Exhibit “A.”  Additional real property and improvements (including Common Property) may be added to the Property by an amendment to this Declaration which includes the description of such additional real estate, and which submits the additional lands to the provisions of this Declaration. Covenants and restrictions applicable to additions to the Property shall be compatible with, but need not be identical to, the covenants and restriction set forth in this Declaration. 

Section 2.     Acquisition of Additional Common Property.  Declarant may convey to the Association, subject to the rules and restrictions herein, additional real property, improved or unimproved, which is, or may become subject to this Declaration, which real property, upon conveyance or dedication to the Association, shall be accepted by the Association at its expense for the benefit of all its Members.   

Section 3.     Amendment.  This Article II may only be amended by Majority vote of all Members.

Section 1.     Membership.   Every Owner, including the Declarant, shall be a Member of the Association, and by acceptance of a deed or other instrument evidencing ownership interest in the Property and Lot, each Owner automatically accepts membership in the Association, acknowledges the authority of the Association as herein stated, and agrees to abide by and be bound by the provisions of this Declaration, the Articles of Incorporation, the By-Laws and other rules and regulations of the Association.  In addition to the foregoing, the family, guests, invitees and tenants of said Owners shall, while in or on the Property, abide and be bound by the provisions of this Declaration, the Articles of Incorporation, the By-Laws and other rules and regulations of the Association.

Section 2.     Allocation of Voting Rights.

(a) Every person or entity who is a record Owner of a fee or undivided fee interest in any Lot located within the Property shall be a Member of the Association and shall be entitled to one (1) vote for each Lot in which they hold the interest.  When more than one person or entity holds such interest or interests in any Lot, all such persons shall be members of the Association, and the vote for such Lot shall be exercised as they among themselves determine, but, in no event shall more than one (1) vote be cast with respect to any such Lot.  When any property entitling the Owner to membership in the Association is owned of record in the name of two or more persons or entities, whether fiduciaries, joint tenants, tenants in common, tenants in partnership or in any other manner of joint or common ownership, or if two or more persons or entities have the same fiduciary relationships respecting the same property, then unless the instrument or order appointing them or creating the tenancy otherwise directs, and it or a copy thereof is filed with the secretary of the Association, such Owner shall select one official representative to qualify for voting in the Association and shall notify in writing the Secretary of the Association of the name of such individual.  The vote of each individual shall be considered to represent the will of all the Owners of that Property and Lot.  In the circumstance of such common ownership, if the Owners fail to designate their voting representative then the Association may accept the person asserting the right to vote as the voting Owner until notified in writing to the contrary.  Upon such notification, the Owner may not vote until the Owner(s) appoint their representative pursuant to this paragraph.

(b) The voting rights of any Owner may not be assigned to any tenant.

(c) For purposes of determining voting rights hereunder, the membership roster shall be set as of sixty (60) days prior to the commencement of the Association’s fiscal year as set forth in the Bylaws or the North Carolina Statutes.

Section 3.     Change of Membership.     Change of membership in the Association shall be established by recording in the Public Records of Buncombe County, North Carolina, a deed or other instrument conveying record fee title to any Lot located in the Property, and by the delivery to the Association of a copy of such recorded instrument.  The Owner designated by such instrument shall, by acceptance of such instrument, become a Member of the Association, and the membership of the prior Owner shall be automatically terminated.  In the event that a copy of said instrument is not delivered to the Association, said Owner shall become a Member, but shall not be entitled to voting privileges enjoyed by its predecessor in interest until delivery of a copy of the recorded conveyance instrument to the Association. The foregoing shall not, however, limit the Association’s powers or privileges and the new Owner shall be liable for accrued and unpaid fees and assessments attributable to the Lot acquired.  The interest, if any, of a Member in the funds and assets of the Association shall not be assigned, hypothecated or transferred in any manner except as an appurtenance to the Owner’s Lot.  Membership in the Association by all Owners shall be compulsory and shall continue, as to each Owner, until such time as such Owner of record transfers or conveys its interest in the Property and Lot upon which its membership is based or until said interest is transferred or conveyed by operation of law, at which time the membership shall automatically be conferred upon the transferee.  Membership shall be appurtenant to, run with, and shall not be separated from the Property or Lot interest upon which membership is based.

Section 4. Voting Membership.

CLASS A. Class A members shall be all Lot Owners and shall be entitled to one (l) vote for each Lot owned; provided however, so long as there is Class B membership, Developer shall not be a Class A member. When more than one person holds an interest in any Lot, all such persons shall collectively be the member. The member vote for any such collectively owned Lot shall be exercised as they among themselves solely determine; but in no event shall more than one (1) vote be cast with respect to any Lot.  Prior to the time of any meeting at which a vote is to be taken, each co‑owner shall file the name of the voting co‑owner with the Secretary of the Association in order to be entitled to vote at such meeting, unless such co‑owners have filed a general voting authority with the Secretary applicable to all votes until rescinded.

CLASS B. The Class B membership shall be the Declarant who shall be entitled to two (2) votes for each Lot owned and to which it holds the voting rights.  Upon the sale and consummation of a closing on “all” of the Lots, the Class B membership shall automatically terminate and the Association shall recognize the Class A membership as the only class of membership entitled to Association voting rights.

Section 1.     Common Area.  The Association, subject to the rights of the Owners as set forth in this Declaration, shall be responsible for the exclusive management and control of the Common Areas and all improvements thereon (including, without limitation, furnishings, equipment related thereto and common landscaped areas), and shall keep the Common Area in marketable, clean, attractive, and sanitary condition, order, and repair, pursuant to the terms and conditions hereof.

Section 2.     Personal Property and Real Property for Common Use.  The Association may acquire, hold, and dispose of tangible and intangible personal property and real property, subject to the Majority vote of the Board.  The Association shall accept any real or personal property, leasehold, or other property interests within the Property conveyed to it by the Declarant.

Section 3.     Services.   The Association, subject to the voting rules and regulations as set forth herein in Article VI, shall have the following powers and may provide the following services:

(a) Maintenance of all Common Property.  The Association shall adopt reasonable standards of maintenance and operation required by this and other subsections that are consistent with this Declaration;

(b) Maintenance of any real property located within the Property upon which the Association has accepted an easement for said maintenance;

(c) Insect, pest and aquatic control where necessary or desirable in the judgment of the Association to supplement the service provided by the state and local governments.  The Association reserves a perpetual right on the Common Property to dispense pesticides and take other action that, in the opinion of the Association, is necessary or desirable to control insects and vermin.  The provisions of this paragraph shall not be construed as an obligation on the part of Association to provide such services;

(d) Taking any and all actions necessary to enforce all covenants, conditions and restrictions affecting the Property and to perform any of the functions or services delegated to the Association in any covenants, conditions or restrictions applicable to the Property or the Common Property or in the Articles or By-Laws;

(e) Conducting business of the Association, including but not limited to, collection or raising of funds necessary to carry out the purposes and responsibilities of the Association set forth in this Declaration, as amended, administrative services such as legal, accounting and financial, and communication services informing Members of activities, Notice of Meetings, and other important events.  The Association shall have the right to enter into management agreements with companies affiliated with the Association in order to provide its services, and perform its functions;

(f) Purchasing general liability and hazard insurance covering improvements and activities on the Common Property at a current replacement cost basis in an amount no less than one hundred (100%) percent of the insurable value; directors and officers liability and such other insurance as the Association deems necessary.  Hazard insurance proceeds for losses to any Common Property may not be used other than for repair, replacement or reconstruction of such property unless the Association decides otherwise;

(g) Establishing and operating the Architectural Review Board as hereinafter defined;

(h) Adopting, publishing and enforcing such Rules and Regulations as the Association deems necessary;

(i) Constructing improvements on Common Property and easements as may be required to provide the services as authorized in this Declaration;

(j) Installation, operation and maintenance of communication systems by the Association or a contractual designee of the Association, and assistance in the apprehension and prosecution of persons who violate the laws of Buncombe County or the State of North Carolina or the U.S.A. within the Property.  However, the Association shall not be obligated to provide any security measures to the Property nor shall they be held liable for any loss or damage by reason of failure to provide adequate security or ineffectiveness of security measures undertaken.  All Owners, tenants, guests, and invitees of any Owner, as applicable, acknowledge that the Association is not an insurer, and that each Owner, tenant, guest, and invitee assumes all risk of loss or damage to persons, to property, and to the contents of all residential dwelling units and further acknowledge that Declarant has made no representations or warranties, nor has any Owner, tenant, guest, or invitee relied upon any representations or warranties, express or implied, including any warranty of merchantability or fitness for any particular purpose relative to any security measures recommended or undertaken; 

(k) In addition to maintenance herein provided, the Association may provide, at the Owner’s reasonable cost, exterior maintenance upon any Residential Property or upon any structure containing Residential Property(s) which, in the Association’s opinion, requires such maintenance because said Residential Property or structure is not being maintained consistent with the terms of this Declaration.  The Association shall notify the Owner of said unit or units in writing, specifying the nature of the condition to be corrected, and if the Owner has not corrected same within thirty (30) days after date of said notice, the Association may correct such condition.  Said maintenance shall include but not be limited to painting, repairs, replacement and maintenance of roofs, gutters, down spouts, exterior building surfaces, trees, shrubs, grass, walks and other exterior improvements; 

For the purpose of performing the exterior maintenance authorized by this Declaration, the Association, through its duly authorized agents or employees, shall have the right, after reasonable notice to the Owner, to enter upon any Residential Property or exterior of any Residential Property at reasonable hours on any day, except Saturday and Sunday.  The Association or its agents shall have the right to enter inside the residential dwelling only upon Owner’s permission, arbiter’s decision or court order.

The cost of such maintenance shall be assessed against the Lot Property upon which such maintenance is performed, but shall not be considered part of the annual maintenance assessment or charge.  Any such special assessment or charge shall be a lien upon the Residential Property and an obligation of the Owner and shall become immediately due and payable in all respects, together with attorney’s fees, court costs, interest and other fees or costs of collection as provided for other assessments of the Association;

(l) The Association may carry out any of the functions and services specified in Section 1 of this Article to the extent such maintenance and services can be provided with the proceeds first from annual assessments and then, if necessary, from special assessments.  The functions and services allowed in Section 1 of this Article to be carried out or offered by the Association at any particular time shall be determined by the Association taking into consideration proceeds of assessments and the needs of the Members of the Association.  The functions and services that the Association is authorized to carry out or to provide, may be added to or reduced at any time upon the Majority affirmative vote (subject to the voting rules and regulations set forth herein) of the Association.  The Association may provide the permitted services by contract with third parties, including agreements with applicable governmental agencies;

(m) Establish promulgated rules and regulations respecting the use of Common Property and Association facilities by Members and persons other than Members, and to amend the same;

(n) Engage in any activities reasonably necessary to remove from the Common Property any pollutants, hazardous waste or toxic materials, and by special assessment, recover costs incurred from the Owner(s) causing or upon whose property such materials were located or generated. 

The functions and services allowed in this Section to be carried out or offered by the Association taking into consideration proceeds of assessments and the needs of the Members of the Association.  The functions and services that the Association is  authorized to carry out or to provide, may be added to or reduced at any time upon the affirmative Majority vote (as required by the Covenants and Bylaws) of the Association Board. 

Section 4.     Mortgage and Pledge.    The Association shall have the power and authority to mortgage the property of the Association and to pledge the revenues of the Association as security for loans made to the Association which loans shall be used by the Association in performing its functions upon a Majority of the votes cast by the Members represented at a duly called and held meeting (with a Quorum established by the Bylaws).

Section 5.     Conveyance by Association.     Subject to the provisions of this Declaration, the Association shall be empowered to delegate or convey any of its functions or properties or portion of the Property to any governmental unit or public utility or for other public purposes consistent with the intended use of such Property.  In addition, the Association may convey lands or easement in the Property (with a Majority of the Owners’ Permission) or Common Area to the Declarant in connection with any re-platting of any portion of the Property.

Section 1.     Common Property and Access Easement.     Declarant grants to the Association and all Owners (and their guests, lessees and invitees) as an appurtenance to and as part of the ownership held by such Owner in the Property, but subject to this Declaration, the Articles and By-Laws of the Association and the rules promulgated by the Association, a perpetual nonexclusive easement for ingress and egress over, across and through and for the use and enjoyment of all Common Property (hereinafter referred to as the “Common Property Easement.”)

Section 2.     Utility Easements.     The Declarant reserves to itself (and its successors or assigns) the right to grant easements to any private company, public or private utility or governmental authority providing utility and other services within the Property and the Common Property, as necessary (“Utility Easement (s)”).  Said easements shall only be given for the purpose of maintaining, installing, repairing, altering and operating sewer lines, irrigation lines, water lines, waterworks, sewer works, force mains, lift stations, water mains, sewer mains, water distribution systems, sewage disposal systems, effluent disposal lines and systems, pipes, wires, power lines, telephone service, gas lines, siphons, valves, gates, pipelines, cable television service, alarm systems and all machinery and apparatus appurtenant thereto to all of the foregoing as may be necessary or desirable for the installation and maintenance of utilities and providing services to Owners, the Property and Common Property, including but not limited to the establishment of a Municipal Service Benefit Unit (“MSBU”) providing for the installation and maintenance of the street lighting within the Property (as further set forth herein below).  All such easements to be of a size, width and location as Declarant, in its sole reasonable discretion, deems best but selected in a location so as to not unreasonably interfere with the use of any improvements which are now, or will be, located upon the Property.

Section 3. Exculpation From Liability and Responsibility.   Each Owner, by the acceptance of a deed or other conveyance to its Lot or Dwelling shall be deemed to have agreed that the Developer, shall not have any liability or responsibility whatsoever (whether financial or otherwise) with respect to the Easements (hereinafter defined).

Section 1. Creation of the Lien and Personal Obligations of Assessments.     The Declarant covenants, and each Owner of any Lot shall by acceptance and recording of a deed therefore, regardless of whether it shall be so expressed in any such deed or other conveyance, be deemed to covenant and agree to all the terms and provisions of this Declaration and to pay the Association: (1) annual assessments; (2) special assessments, (3) individual assessments; and if applicable (4) Preserve assessments all established and collected from time to time as hereinafter provided.  The annual, special, specific, individual, and Preserve assessments together with such interest thereon and costs of collection therefore shall be a charge and continuing lien as provided herein on the Lot and improvements of the Owner against whom each such assessment is made.  Each such assessment, together with such interest thereon and cost of collection, shall also be the personal obligation of the person who was the Owner of such real property at the time when the assessment first became due and payable.  The liability for assessments may not be avoided by waiver of the use or enjoyment of any Common Property or by the abandonment of the property against which the assessment was made.  In the case of co-ownership of a Lot all of such Co-Owners shall be jointly and severally liable for the entire amount of the assessment.  No diminution or abatement of assessment or set-off shall be claimed or allowed by reason of any alleged failure of the Association or Board to take some action or perform some function required to be taken or performed by the Association or Board under this Declaration or the By-Laws, or for inconvenience or discomfort arising from the making of repairs or improvements which are the responsibility of the Association, or from any action taken to comply with any law, ordinance, or with any order or directive of any municipal or other governmental authority.

Section 2. Purpose of Annual Assessments.     The annual assessments levied by the Association shall be used exclusively for the improvement, maintenance, enhancement and operation of the Common Property, including but not limited to the Easements and for the maintenance and repair of the Erosion Control Systems including but not limited to work within retention areas, drainage structures and drainage easements, and to provide services which the Association is authorized or required to provide including, but not limited to, the payment of taxes and insurance thereon, if any, construction, repair or replacement of improvements, payments of the costs to acquire labor, equipment, materials, management and supervision necessary to carry out its authorized functions, any costs or charges incurred or required by the Improvement and Maintenance Agreement and for the payment of principal, interest and any other charges connected with loans made to or assumed by the Association for the purpose of enabling the Association to perform its authorized or required functions.  Once all the capital improvements are complete (retaining wall, clearing, fill, road stabilization, entrance features, irrigation, landscapes, street lights, etc.), the Association shall not approve the acquisition or purchase of an additional capital improvement over $10,000.00 without a Majority of the votes cast by all Owner Members, represented at a duly called (noticed) and held meeting (with a Quorum established by the By-laws) of the Association, in favor of the purchase or acquisition.  This shall not be construed or interpreted to include maintenance or replacement of the original or any subsequently approved improvement. Said maintenance and/or replacement of the original (or subsequently approved) capital improvements shall require a Majority vote of the Members Owners at a duly called meeting with a Quorum established.  The Association shall establish reserve funds to be held in reserve in an interest drawing account or investments as a reserve for (a) major rehabilitation or major repairs to Common Property and all Easements that must be repaired on a periodic basis, (b) for emergency and other repairs required as a result of storm, fire, natural disaster or other casualty loss and (c) insurance premiums or taxes, in an amount as required by Buncombe County, North Carolina.  All contracts, labor, material or services authorized by the Association shall be bid to a minimum of three (3) companies.

Section 3. Special Assessments.     In addition to the annual assessments authorized by Section 2 hereof, the Association may levy in any assessment year a special assessment for the purpose of defraying, in whole or in part, the costs of any acquisitions, constructions or reconstruction, unexpected repair or replacement of a described capital improvement upon Common Property or Easement Areas including the necessary fixtures and personal property related thereto; provided that any such assessment shall have the assent of the number of the votes, as specified in Article VI, Section 2, of the Members who are voting in person or by proxy at a meeting duly called for that purpose.

Section 4. Individual Assessments. The Association may impose an individual assessment upon any Owner whose use or treatment of Common Areas is not in conformance with the standards as adopted by the Association or which increases the maintenance cost to the Association above that which would result from compliance by the Owner with the use restrictions imposed by this Declaration.  The amount of such assessment shall be equal to such cost incurred plus 10% of the costs for administration and may be enforced in the manner provided for any other assessment.

Section 5. Preserve Assessments.   The Association may impose a Preserve Assessment upon Lots 28, 30, 33 –51 collectively referred to as the Preserve.  The Preserve Assessment shall be used for the improvement, maintenance, enhancement and operation of any amenity or improvement that is intended for the sole benefit and use of the Lot Owners in the Preserve.   The Preserve Assessments shall be computed exclusive of Common Expenses and shall be assessed only against Lots located in the Preserve.

Section 6. Date of Commencement of Annual Assessments; Due Dates.  The annual assessments provided for herein shall be due and payable on the first day of such month(s) as set by the Board.  The Board, pursuant to the By-Laws, shall further determine the date of the commencement of the annual assessments.  The due date of any special assessment under this Declaration shall be fixed in the resolution authorizing such assessment.

Section 7. Duties of the Board of Directors.     The Board shall prepare a roster of Owners, which shall be kept in the office of the Association and shall be open to inspection by any Owner.  Written notice of the assessment shall thereupon be sent to every Owner.  The Association shall, upon demand, at any time, furnish thereto any Owner liable for said assessment a certificate in writing signed by the Secretary of the Association, setting forth whether said assessment has been paid. Such certificate shall be prima facie evidence of payment of any assessment therein stated to have been paid.

Section 8. Determination of Annual Assessments.  The Board shall recommend to the Association for its approval by Majority vote the total annual assessment for the Property.  The total annual assessment shall equal the projected costs (with a contingency allocation and a reserve for replacement) to operate and carry out the duties, obligations and functions of the Association as set forth in the Articles, Declaration and By-laws. To approve a total annual assessment in excess of the aforementioned method of calculation shall require the assent of a Majority of the votes cast by the Members represented at a duly called and held meeting (with a Quorum).  Written notice of any meeting of the Board at which the Board shall consider determination of the annual assessment or any special assessment shall be sent to all voting Members not less than thirty (30) days nor more than sixty (60) days in advance of the Board Meeting.  At the first such meeting called, the presence of voting Members or proxies entitled to cast a Majority of all of the votes shall constitute a quorum.  If the required quorum is not present, another meeting may be called of the Board subject to the same notice requirements, and the required quorum at the subsequent meeting shall be one-half of the required quorum at the preceding meeting. At such subsequent meeting of the Board if the required membership quorum is not present, but there is a quorum of the Board present, the Board shall be authorized to act with respect to determining the total annual assessments or any special assessments.

Section 9. Allocation of Assessments.     The total annual budget of assessments and special assessments set by the Association for the Property (exclusive of the individual assessments provided for herein) shall be divided equally by the sum of the number of Lots located in the Property.

Section 10.     Determination of Allocation of Assessments.     The number of Lots used for the calculations of the allocation of assessments shall be determined as of the ownership of record sixty (60) days prior to the commencement of the fiscal year of the Association and once so determined shall be controlling for the entire fiscal year.

Section 11. Effect of Non-Payment of Assessment:   The Personal Obligation of the Owner; The Lien; Remedies of Association.     If the assessments are not paid on the date due (being the dates specified herein) then such assessment shall become delinquent and the entire annual assessment shall, together with interest thereon and cost of collection thereof as hereinafter provided, become due and payable and be a continuing lien on the respective Lot, and shall bind such Lot in the hands of the then Owner, the Owner’s heirs, devisees, personal representatives, successors and assigns.  The obligation of the Owner to pay such assessment, however, shall remain a personal obligation.  The Association may record a notice of lien for delinquent assessments (upon an Arbiter’s award or Court Order) in the public records and foreclose the lien in the same manner as a mortgage in accordance with the North Carolina Statutes.  The lien shall not be valid against subsequent bona fide purchasers or mortgagees for value unless so recorded.  Upon recording, the lien shall secure the amount of delinquency stated therein and all unpaid assessments thereafter until satisfied of record.  If the assessment is not paid within sixty (60) days after the delinquency date, the assessment shall bear interest from the date of delinquency at the rate of 18% per annum, and the Association may bring an action at law or equity against the Owner personally obligated to pay the same or foreclose the lien against the Lot, and there shall be added to the amount of such assessment the costs of preparing and filing the complaint in such action, and in the event a judgment is obtained, such judgment shall include interest on the assessment as above provided and a reasonable attorney’s fee, paralegal fee, investigative fee to be fixed by the court together with the costs of the action, through all tribunals and collection efforts.

Section 12. Collection of Assessments.     Assessments allocated to any Lot shall be billed by the Association and shall be collected by the Association.

Section 13. Costs of Collection.   The Association shall be entitled to its costs of collection and attorney’s fees from any Owner against whom an assessment must be enforced.

Section 14. Capital Budget and Contribution.  The Board shall annually prepare a capital budget to take into account the number and nature of replaceable assets, the expected life of each asset, and the expected repair or replacement cost.  The Board shall recommend the required capital contribution, if any, in an amount sufficient to permit meeting the projected capital needs of the Association, as shown on the capital budget, with respect both to amount and time by Annual Assessments over the period of the budget.  The capital contribution required, if any, shall be approved by the Association and included within and distributed with the budget and assessment.  Any reserve fund established by the Association shall be held in an interest-bearing account or investments.

Section. 15.    Municipal Service Benefit Unit (“MSBU”).  In addition to Assessments, the Property

may be subject to MSBU’s for the maintenance of certain areas within the Property which have been dedicated to the County (the “Dedicated Areas”), whether such MSBU’s exist on the effective date of this Declaration or are created in the future at the request of the Declarant, the Association or applicable government authorities, and may be subject to assessments levied by the Association for such purposes pending the creation of and/or funding of MSBU’s.  Declarant is hereby empowered to request that such MSBU’s be created, and to subject each and every Lot to tax assessments necessary to provide for the maintenance of said Dedicated Areas.  The Association is hereby empowered to subject each and every Lot to assessments by the Association for the purpose of providing for the maintenance of said Dedicated Area pending the creation and/or funding of MSBU’s for such purpose.  Each Lot Owner by acceptance of the deed of conveyance therefore, whether or not it be so expressed in said deed, hereby agrees to such Lot being subjected to assessments for MSBU’s or other similar entities or devices for such purposes, and to the taxes and changes imposed thereby, and hereby agrees to support requests for such MSBU’s to be formed and hereby agrees to not object thereto, whether verbally or in writing.  All contractors providing services to the Dedicated Areas shall provide the Association proof of liability insurance acceptable to the County.

Section 16. Subordination of the Lien to Mortgages.  The lien of the Assessments provided for herein shall be subordinate to the lien of any first mortgage.  Sale or transfer of any Lot shall not affect the Assessment lien. No sale or transfer shall relieve such Lot from liability for any Assessments that are due or from the lien thereof.

Section 17. Uniformity of Assessments.     Except for Individual Lot Assessments for which provision is made in Article VI, Section 4, of this Declaration, all Assessments shall be uniformly fixed at an amount equal per Lot and shall be collected on a uniform basis from the Owner of Each Lot.  No Owner shall be required to pay more than its pro-rata share of any Assessment, Special Assessment, Preserve Assessment, Federal, State, County, or City tax, charge, or lien levied against the Association.

Section 1.     Establishment of Architectural Review Board.     There is hereby established an Architectural Review Board (“ARB”).

Section 2.     Duties of and Functions ARB.     The duties, powers and responsibilities of the ARB shall be as follows:

(a) The initial member of the ARB shall be Declarant, until such time that one hundred percent (100%) of the Lots are conveyed to Owners, at which time the ARB shall consist of three (3) persons as elected by a Majority vote by the Association.  The term of the members of the ARB shall be three (3) years, and the members of the ARB shall be elected for successive three (3) year terms.

(b) The ARB shall have the right of specific approval or veto of all architectural, engineering, platting, planning and landscaping aspects of any improvement or development of individual Lots or structures, as well as the general plan for development and improvement of any individual Lot or subdivision, tract or parcel of land within the Property and the Common Property.  All construction and development within the Property and Common Property is subject to local governmental control, provided, further, that the ARB may, in its sole discretion, impose standards or architectural and landscaping design, building setback lines or the general plan for development, which standards are greater or more stringent than standards prescribed in applicable building, zoning, planning or other local governmental codes.  Further, all construction shall reflect timeless, traditional architecture utilizing harmonious colors and materials, as determined to be sufficient and acceptable to the ARB in its sole and absolute discretion.

(c) No building, sign, outside lighting, fence, hedge, wall, walk or other structure or planting shall be constructed, erected, removed, planted or maintained nor shall any addition to or any change or alteration therein be made until the plans and specifications showing the nature, kind, shape, height, materials, floor plans, color scheme and the location of same shall have been submitted to and approved in writing by the ARB.  Any change in the outward appearance of any improvement including but not limited to repainting the same in a different color, adding decorative sculptures, wrought iron grills, or the like, shall also require approval in writing by the ARB before any work is commenced.  Refusal of approval of plans, specifications or location may be based upon any grounds, including purely aesthetic considerations, which the ARB, in its sole and uncontrolled discretion, deems sufficient.

(d) The ARB may require plans for the construction of any improvements within the Property to contain a drainage plan.

(e) As part of the application process, two (2) complete sets of plans and specifications prepared by an architect or other person found to be qualified by the ARB shall be submitted for approval by written application on such form as may be provided or required by the ARB.  In the event the information submitted to the ARB is, in its opinion, incomplete or insufficient in any manner, it may request and require the submission of additional or supplemental information.

(f) The ARB shall have the right to refuse to approve any plans and specifications which are not suitable or desirable, in its sole discretion, for aesthetic or any other reasons, such approval may be withheld on its sole discretion without claim or recourse.  In approving or disapproving such plans and applications, the ARB shall consider the suitability of the proposed building, improvements, structure or landscaping and materials of which the same are to be built, the site upon which it is proposed to be erected, the harmony thereof with the surrounding area and the effect thereof on adjacent or neighboring property.

(g) Unless specifically excepted by the ARB, all improvements for which approval of the ARB is required under this Declaration shall be completed within a reasonable time from the date of commencement of said improvements or within the time set by the ARB in the event that the approval is so conditioned.

(h) In the event the ARB shall fail to specifically approve or disapprove the plans and specifications submitted in final and complete form, within thirty (30) days after written request for approval or disapproval such plan and specification shall be deemed approved.

(i) The ARB is specifically empowered to enforce the provisions of this Declaration by Arbitration as set forth earlier in this Agreement. In the event it becomes necessary to resort to litigation to determine the propriety of any constructed improvement, or to remove any unapproved improvements, the prevailing party shall be entitled to recovery of all court costs, expenses and reasonable attorney’s fees in connection therewith, through all tribunals and collection efforts.  The Association shall indemnify and hold harmless any Member of the ARB from all costs, expenses and liabilities including attorney’s fees incurred by virtue of any Member of the ARB’s service as a Member of the ARB. The ARB shall consider extensions of cure periods to an Owner in the event of extreme hardship or acts of God. This shall not, however, be considered a waiver of any kind of the right of the ARB or Association to enforce the Declarations.

(j) Majority consent of the ARB shall approve any action of the ARB and may designate a representative to act for it.  In the event the ARB fails to achieve unanimous consent any member of the ARB may require a special meeting of the Association Board within five (5) working days for the purpose of reviewing the ARB decision.  The Board may overturn the ARB decision only by a Majority vote of the entire Board.  In the event of death, disability or resignation of any member of the ARB, the Association by a Majority vote shall designate a successor.

(k) The Association may adopt further rules and regulations as it deems necessary to carry out its functions and purposes hereunder, provided all such rules and regulations shall be filed with and made a part of this Association’s minutes and further provided that any rule or regulation change, addition or deletion is approved by a Majority of all of the Owners at a duly called meeting with a quorum.

(l) The ARB may impose reasonable fees and charges upon Owners (Applicant) to enable it to carry out its functions.

(m) The ARB may require that any portion of the Residential Property and any improvements thereon within the Property be pre-wired for cable television and/or security in such a manner as the ARB shall specify.

(n) The ARB has the right, but not the obligation, to grant waivers for minor deviations and infractions of this Declaration.  The granting of any waiver for any portion of the Property may be given or withheld in the ARB’s sole discretion and a prior grant of a similar waiver shall not impose upon the ARB the duty to grant new or additional requests for such waivers.

(o) The Association, Declarant, ARB or any officer, employee, director or member thereof shall not be liable for damages to any persons submitting plans and specifications for approval by reason of mistake in judgment, negligence or nonfeasance arising out of or in connection with the approval, disapproval or failure to approve any plans and specifications.  Every person who submits plans and specifications for approval agrees, by submission of such plans and specifications, that it will not bring any action or suit against the Association, Declarant or ARB to recover any such damages.

Section 3. Restrictive Covenants and Planning Criteria.

3.1 Dwellings. The Property and Lot(s) shall be occupied and used only as a residence for a single family and for no other purpose. No mobile home, log cabin, trailer, tent, shack or other out building shall be placed or erected on Property. 

(a) On Lots 1- 27, 29, 31, 32 the finished floor area of the main dwelling structure, exclusive of carports, garages, breezeways, patios, porches, basements, and unfinished storage spaces and other unfinished areas, shall be not less than 1600 square feet. On Lots 28, 30, 33 –51, the finished floor area of the main dwelling structure, exclusive of carports, garages, breezeways, patios, porches, basements, and unfinished storage spaces and other unfinished areas, shall be not less than 1900 square feet.  Declarant reserves the right, in its discretion, to reduce or otherwise modify the above square footage requirements;

(b) No Dwelling shall exceed three (3) stories in height;

(c) No projections of any type shall be placed or permitted to remain above any roof of the Dwelling with the exception of chimneys; solar collectors must be located on rear of house and vent stacks;

(d) No building shall be erected with exteriors of exposed concrete cinderblocks, and no building shall be built where the siding thereof shall consist of asbestos shingles or aluminum.   There shall be no prefabricated buildings or structures placed upon Lots within the Property except prefabricated components of trusses, or cabinet units, which shall be permitted.  Declarant reserves the right to modify and/or amend this paragraph to adapt the development of Property to future residential development standards.

(e) All driveways shall be constructed of solid concrete or decorative pavers approved by the ARB;

(f) All oil tanks, soft water tanks, wood piles, solar panels, water softeners, well pumps, sprinkler pumps, pool and spa equipment and heaters, and other or similar mechanical fixtures and equipment shall be screened or located so as not to be visible from a street or any other Lot. This provision shall not apply to central air conditioning compressor units;

(g) All garages must have a minimum width of twenty-four (24) feet measured from the inside walls of the garage; must have either a single overhead door with a minimum width of eighteen (18) feet, or two (2), three (3) or four (4) individual overhead doors, each with a minimum width of nine (9) feet; and a service door facing the rear or side of the lot.  In order to maintain a harmonious and aesthetic appearance, the garage doors affixed to each Dwelling unit shall be kept closed except when automobiles are entering or leaving the garage. Any replacement of garage doors must be approved by the Board. No screen doors in front of garage door shall be permitted; and

(h) Screened patios other than pool enclosures shall be constructed with a permanent roof with roof tiles and pitch to match the existing house.

3.2   Exterior Maintenance. 

(a) Requirements.  Each Owner shall, at his sole cost and expense, maintain and repair his Lot and the exterior of his improvements, keeping such improvements in a condition comparable to their condition at the time of their initial construction, excepting only normal wear and tear.  In the event any Owner of any Lot shall fail to maintain the premises and improvements situated thereon in a satisfactory manner, the Association, after approval of a Majority vote of the Board of Directors, shall have the right and a maintenance license and easement running with the Lot and improvements, through its agents and employees, to enter upon said parcel and to repair, maintain, and restore the Lot and the exterior of the buildings and any other improvements erected thereon.

(b) Procedure.  Prior to performing any maintenance on a Lot or improvement, the Board of Directors of the Association shall determine that said Lot or improvement is in need of maintenance and is detracting from the overall appearance of the Property.  Prior to commencement of any maintenance work on a Lot or improvement, the Board of Directors must furnish thirty (30) days prior written notice to the Owner at the last address listed in the Association's records for said Owner, notifying the Owner that unless certain specified maintenance is performed within said thirty (30) day period, the Board of Directors shall cause said necessary maintenance to be performed and submitted for immediate reimbursement to the Owner.  Upon the failure of the Owner to act within said period of time, the Board of Directors shall have the right to enter in or upon any such Lot or to hire personnel to do so to perform such necessary maintenance as is so specified in the above written notice.  The Board of Directors shall have the right, but not limited, to mow and clean said Lot and care for trees, shrubs, grass, walks and remove trash, garbage, and unsightly weeds, trees, shrubbery, and other material and such other maintenance as it shall reasonably deem necessary.

(c) Assessment of Cost.  The cost of such maintenance by the Association shall be assessed against the Lot upon which such maintenance is performed and shall be added to and become part of the annual maintenance assessment or charge to which such Lot is subject hereunder; and, as part of such annual assessment or charge, it shall be a lien and obligation of the Owner and shall become due and payable in all respects as provided for annual assessments under this Declaration.

(d) Rebuilding.  If all or any portion of the exterior or any visible portion of a residence or other improvement is damaged or destroyed by fire or other casualty, it shall be the duty of the Owner thereof to immediately take all reasonable steps to remove all burned or otherwise damaged materials from the Lot.  Further, the Owner shall immediately notify the Architectural Review Board in writing within thirty (30) days of such damage or casualty as to whether such Owner intends to rebuild, repair or reconstruct such residence. If the Owner elects to rebuild, repair or reconstruct such improvement, such effort must be undertaken within three (3) months after such damage occurs and shall be pursued diligently until conclusion which shall not be later than six (6) months after such damage, and such efforts shall be only that which will substantially restore the improvement to its appearance and condition immediately prior to the damage, unless the plans and specifications for any change or alteration shall have been submitted to, reviewed, and approved by the Architectural Review Board.  If the Owner elects not to rebuild, repair or reconstruct such damage, the Owner shall immediately clear the damaged structure or improvement from his Lot, returning it to the condition of an unimproved Lot, and shall thereafter be subject to the requirements of this Declaration with respect to the construction of the initial residence.

3.3 Setbacks. No building shall be erected or located nearer that twenty (20) feet from any road right of way, exclusive of those rights of way shown as “common drives” or “common driveways” on the Plat.  No building shall be erected or located nearer than ten  (10) feet to any side, rear, or interior lot line.  For the purposes of this paragraph, stoops, terraces, eaves, steps, and open, uncovered porches or decks shall not be considered as part of a building.  No portion of a building shall be permitted to encroach upon any easement or right of way established on the Property without the written consent of the Declarant.

3.4 Business.  No commercial activity of any kind shall be conducted on any Lot with the exception of the business of Developer in developing all of the Lots as provided in this Declaration.  Home offices shall not be considered or deemed a “business or commercial activity” so long as in compliance with governmental requirements.

3.5 Nuisance; Obnoxious or Offensive Activity. No unlawful, improper, or immoral use shall be made of the Property.  No noxious or offensive activities shall be carried on upon any lot, nor shall anything be done upon any lot with the Property tending to cause embarrassment, discomfort, annoyance, or a nuisance to the neighborhood.  Generally accepted house or yard pets, in reasonable numbers (not to exceed an aggregate of three dogs and/or cats) may be kept and maintained at each Lot, provided such pets are not bred, kept or maintained for commercial purposes All pets must be kept on the owner’s lot or on a leash throughout the subdivision.

3.6 Signs. No sign of any kind shall be displayed to public view on a Lot or the Common Property without the prior written consent of the Architectural Review Board, except customary, professionally made name and address signs of a surface area not to exceed one and one-half (1 1/2) square feet, or one (1) temporary professionally made sign of an area not exceeding thirty-two (32) square feet for building contractors or one (1) sign of not more than five (5) square feet advertising any lot for sale, or signs used by a builder, architect, or Declarant to advertise the Property during the construction and/or sales period.  Nothing in this paragraph shall be construed to prevent Declarant from erecting or placing entrance display signs or signs designated to designate areas within the Property including street signs.  All temporary signs as denoted above shall be removed within one (1) week after the completion of the construction or sale or leasing of said property, as may be the case.

3.7 Insurance Risk.  Nothing shall be done or kept on a Lot or on the Common Property which would increase the rate of insurance relating thereto without the prior written consent of the Association, and no owner shall permit anything to be done or kept on his Lot or the Common Property which would result in the cancellation of insurance on any residence or on any part of the Common Property, or which would be in violation of any law.

3.8 Animals; Pets.    No animals, livestock, or poultry of any kind shall be raised, bred, or kept on any Lot or on the Common Property. .  No horses, pigs, llamas, alpacas or other hoofed animals may be kept on any Lot.  No pit bull or other excessively aggressive dogs may be kept.  All pets must be kept under control of their owner when they are outside the occupants’ premises and must not become a nuisance to other residents at any time.  Declarant reserves the right, in its absolute discretion, to determine “reasonableness” and “excessively aggressive” as it applies to this section and to declare any animal a nuisance and require adequate enclosures approved by the Declarant or the removal of such animal from the Property.  However, dogs, cats and other household pets may be kept on Lots subject to such rules and regulations as may be adopted by the Association, so long as they are not kept, bred, or maintained for commercial purposes.  Pet owners shall clean up after their pet’s fecal waste on any part of the Property. The Owner of any Lot on or in which a household pet becomes an annoyance or nuisance to any one or more neighbors shall take the necessary steps to abate such annoyance or nuisance immediately.  All pets must be kept inside the house, on a leash, or within a fenced area. In the event of any dispute regarding the abatement of the annoyance or nuisance, the Association Board of Directors shall be empowered, upon written petition of the affected Owners, to make final decisions regarding the same.

3.9 Refuse.    No rubbish, trash, garbage, or other waste material shall be kept or permitted on any Lot or on the Common Property except in sanitary containers located in appropriate areas concealed from public view.  No Lot shall be used or maintained as a dumping ground for rubbish, trash, or other waste.  There shall be no burning of trash or any other waste material.

3.10 Temporary Structures.  No building or structure of a temporary or portable character such as trailers, mobile homes, tents, shacks or sheds shall be permitted on the Property, except for temporary improvements used solely in connection with the construction of approved permanent improvements and removed immediately upon completion of such construction. Declarant shall not be prohibited from erecting or maintaining such temporary dwellings, model homes and other structures as Declarant may desire for development and marketing purposes, provided such are in compliance with the appropriate governmental requirements or regulations.

3.11 Vehicles.  All vehicles shall be parked on paved driveways or within garages. The intent of the Association is to restrict on-street parking for a more aesthetic streetscape and safer vehicle access. No inoperative vehicles shall be allowed to remain on the Property in excess of forty-eight hours unless kept in an enclosure and not visible from the street or any other Lot.  No commercial vehicles, or trucks with gross vehicle weight rating in excess of 10,000 pounds or trucks with commercial beds or bodies, or mobile homes except those present on business shall be parked on any part of the Property.  The Board may enforce violations of this provision by having vehicle(s) of a violating Owner towed from the Property at the Owner’s sole risk and expenses. No wrecked, junked, disabled, or undrivable motor vehicles shall be placed or kept within the Property.  No motorcycles, minibikes, or other motorized two, three or four wheel vehicles shall be allowed within the Property other than duly licensed vehicles which are used exclusively for transportation purposes, and then, only if property managed, with it being further understood and agreed that such motorcycles, minibikes, or other motorized vehicles so licensed shall be allowed to operate within the Property only upon the regularly platted road rights of way.

3.12 Lighting.  Proper exterior lighting is recommended. Improper or excessive lighting shall not be permitted. Christmas lighting shall be installed and removed within 60 days of December 25^th.

3.13 Air-Conditioning Equipment.  No air conditioning equipment other than compressor units may be visible on the exterior of any Dwelling unless approved by the ARB, which approval may be based on the adequacy of screening of such equipment. The ARB may prohibit window or wall air conditioning units altogether.

3.14 Aerials; Flagpoles.  No exterior telecommunications, radio, microwave, or television mast, tower, pole, wire, aerial, satellite receiving stations or dish greater than 18” in diameter, antenna or appurtenances thereto, nor any other exterior electronic or electric equipment, structures or devices of any kind may be installed or maintained in the Property without the prior written approval of the ARB. Yard-mounted flagpoles shall not be allowed. Owners are advised to use brackets mounted on the house or garage to display their flags.

3.15 Subdivision.  No part of the Property or any Lot shall be further subdivided.

3.16 Completion of Construction.  Upon commencement of construction of any improvements on any Lot, the Owner shall diligently and continuously prosecute the work to the end that the improvements shall be completed as expeditiously as is reasonable. The Owner of the Lot on which improvements are being built must keep the streets and areas adjacent to the Lot free from any dirt, mud, garbage, trash or other debris occasioned by the construction and shall sweep off streets as needed. In the event that any items installed by the Developer are damaged by the Owner, Owner’s agents, contractors, subcontractors entering the development the Owner of the Lot shall be solely responsible for the cost of repairing or replacing such items including any surcharges assessed by the Developer for completing such repairs. The Developer reserves the right to provide the lot owner with a Notice to Owner should the replacement or repair cost of any single lot owner exceed one thousand ($1,000.00) dollars in any given period.

3.17 Excavation.  No clearing or excavation shall be made except incident to construction, maintenance or repair of an improvement; and upon completion thereof exposed openings shall be backfilled, and disturbed ground shall be leveled, graded and seeded in accordance with the approved landscape plan.

3.18 Fences and Walls.  There shall be no fence or wall permitted on any Lot unless it meets the requirements below and has been approved by the ARB as to size, material, color, location, etc. Chain link fences shall not be permitted.  Landscape buffers may be required on the outside of any fences and walls by the ARB.  All wood fences must be architecturally distinct and be installed with the posts and supports on the inside and the finished side exposed. No prefabricated wood fences shall be allowed.  No PVC fencing shall be allowed.  No fence or wall shall exceed 6 feet in height exclusive of pillars or ornaments.  Decorative entry walls, entry gates, courtyard walls and privacy walls surrounding and abutting pool decks are considered structures appurtenant to the residence and may be allowed within the setback.

3.19 Clotheslines.  Clotheslines are not permitted. No clothing, bedding, or other similar items shall be hung over or on any windows, doors, walls, fences or in open garages if the same be visible from any street, adjacent properties or Common Property.

3.20 Pools.  Swimming pools may not be located in the front yard of any Lot.  No above ground pool shall be permitted.

3.21 Tree Removal. The clear cutting of trees on any lot is prohibited, except when such cutting has been approved by the Developer in conjunction with the construction of improvements on a lot within the Property.  Selective cutting of trees is not prohibited, provided no trees with a diameter of more than eight (8) inches, measured eighteen (18) inches from ground level, shall be cut without express prior consent of the Declarant.

3.22 Ramps.  Skateboard or bicycle ramps shall be strictly prohibited within the Property.

3.23 Mail Boxes.  All mail boxes shall be of the same design, material, color and size as provided by the ARB design standards.

3.24 Roofs.  The roofs of all buildings and other structures shall be pitched.  The pitch of all roofs shall be not less than six inches (6”) in twelve inches (12”) or as otherwise specified by the ARB design standards.

3.25 Landscaping.

a. All landscape plans shall be approved by the ARB.  Except for the area in which a home, pool, tennis court, road, driveway, walkway, shrubbery or ground cover approved by ARB exists, the entire area of a Lot extending from the front Lot line to a line parallel to the front Lot line and extending from the rear-most wall of a home must be sodded and the grass must be kept neatly mowed.  The area from the front Lot line to the edge of road pavement or curb shall also be sodded and kept neatly mowed.  No type of Bahia grass shall be used.

b. Mulch or pine straw must be used in any areas on each Lot around shrubs and trees, unless the area up to the base of the shrub or tree is sodded.

3.26 Lease.  The Owner of a Dwelling shall be entitled to lease such Dwelling only if there is a written, fully executed lease agreement by and between Owner and Lessee specifying that (i) the tenant shall be subject to all provisions of this Declaration, and (ii) a failure to comply with any provisions of this Declaration shall constitute default under the terms of the lease agreement (iii) the term of the lease of the agreement shall be not less than Eleven (11) months.

3.27 Management and Tenant Approval.  Only active North Carolina Licensed Real Estate Brokers and persons approved by the Association are permitted to lease, or manage Dwellings or Lots on the Property. Should any person, other than a North Carolina Licensed Real Estate Broker, lease, or manage Dwellings or Lots within the Property, such person shall obtain prior written approval of the Association. The Association may charge a fee of Fifty Dollars ($50.00) for a prospective tenant background check unless the Owner or property manager conducts the background check. No lease shall be approved until the background check is completed and approved by the Association.

3.28     No hunting shall be allowed within the Property.  No hunting of any manner is allowed on the Property.

Section 4. Modifications.  The ARB shall also have exclusive jurisdiction over modifications, additions, or alterations made on or to existing Residential Property or structures.  The ARB may promulgate detailed standards and procedures governing modifications to existing structures, consistent with local government standards and codes.  In addition thereto, the following shall apply: Plans and specifications showing the nature, kind, shape, color, size, materials, and location of such modifications, additions, or alterations, shall be submitted to the ARB for approval as to quality of workmanship and design and as to harmony of external design with existing structures, location in relation to surrounding structures, topography, and finish grade elevation.  No permission or approval shall be required to repaint in accordance with an originally approved color scheme, or to rebuild in accordance with originally approved plans and specifications.  Nothing contained herein shall be construed to limit the right of an Owner to remodel the interior of a Residential Property or to paint the interior of his Residential Property any color desired.  In the event that the ARB fails to approve or to disapprove such plans or to request additional information reasonably required within thirty (30) days after submission, the plans shall be deemed automatically approved.

Section 1.     Compliance by Owners, Initial Rules and Regulations.      

In addition to the other rights and remedies set forth herein, the ARB, along with the Developer and the Board of Directors of the Association, shall have the right and obligation to enforce the provisions hereof, as amended from time to time by the ARB or the Association.  Should any Owner fail to comply with the requirements hereof after thirty (30) days written notice, the ARB, the Developer, or the Board of Directors of the Association shall have the right to enter upon the Lot, make such corrections or modifications as are necessary, or remove anything in violation of the provisions hereof , and charge the cost thereof to the Owner. Should the ARB, the Developer, or the Board of Directors be required to enforce the provisions thereof by legal action, the reasonable attorney's fees and costs incurred, whether or not judicial proceedings are involved, including the attorney's fees and costs incurred on appeal of such judicial proceedings, shall be a lien on the Lot and shall be collectible from the Owner and any successor or assign. Should any Owner fail to comply with the requirements hereof after thirty (30) days written notice, the ARB and the Association shall have the right but not the obligation to enter upon the Owner’s property, make such corrections or modifications as are necessary, or remove anything in violation of the provisions hereof , and charge the cost thereof to the Owner as an individual assessment. The ARB, the Developer, and the Board of Directors of the Association, and their agents and employees shall not be liable to the Owner for any damages or injury to the property or person of the Owner unless caused by the negligence thereof.

No delay in enforcing these covenants and restrictions as to any breach or violation thereof shall impair, damage or waive the right of the Association to enforce the same, to obtain relief against or recovery for continuation or repetition of such breach or violation or of any similar breach or violation thereof at a later time or times.

Section 2. Enforcement.   Failure of the Owner to comply with such restrictions, covenants, or rules and regulations shall be grounds for action which may include, without limitation, an action to recover all sums due for damages, injunctive relief, or any combination thereof, including costs and attorneys’ fees, paralegal fees and investigative fees, through all appeals and collection efforts.  The Association shall have the right to suspend voting rights and use of Common Areas for any Owner violating these Covenants and Restrictions for a period of time that is the longer of sixty (60) days or the term of continued violation. 

Section 3.     Fines.     In addition to all other remedies, a fine or fines may be imposed upon an Owner by the Association for failure of an Owner, his family, guests, invitees, tenants, or employees, to comply with any covenant, restriction, rule or regulation, contained herein or promulgated pursuant to these Declarations, as amended, provided the following procedures are adhered to:

(a) Notice.    The Association shall notify the Owner in writing of the infraction or infractions with reasonable detail.  Included in the notice shall be date and time of the next Board meeting at which time the Owner shall present reasons why penalty(s) should not be imposed.

(b) The noncompliance shall be presented to the Board after which time the Board shall hear reasons from the Owner as to why penalties should not be imposed.  A written decision of the Association shall be submitted to the Owner by not later than twenty-one (21) days after the Board’s meeting.

(c) The Association may impose special assessment fines against Lot owned by the Owner after two (2) written warnings as follows:

(1) First noncompliance or violation: a fine not in excess of One Hundred Dollars ($100.00);

(2) Second noncompliance or violation: a fine not in excess of Five Hundred Dollars ($500.00);

(3) Third and subsequent noncompliance, or violation or violations that are of a continuing nature: a fine not in excess of One Thousand Dollars ($1,000.00) for each week of continued violation or non-compliance.

(d) Payment of Penalties.    Fines shall be paid not later than thirty (30) days after notice of the imposition or assessment of the penalties.

(e) Collection of Fines: Fines shall be treated as an assessment due on the next monthly assessment obligation, otherwise due to the Association, and as such will be a lien again the Owner’s Lot.

(f) Application of Penalties and Fines.  All monies received from fines shall be allocated as directed by the Association.

(g) Non-Exclusive Remedy.   These fines shall not be construed to be exclusive, and shall exist in addition to all other rights and remedies to which the Association may be otherwise legally entitled; however, any penalty or fine paid by the offending Owner shall be deducted from or offset against any damages that the Association may otherwise be entitled to recovery by law from such Owner.

ARTICLE IX

INSURANCE AND CASUALTY LOSSES

Section 1. Insurance.  The Board or its duly authorized agent shall have the authority to and may, in its sole and absolute discretion and judgment, obtain blanket all-risk casualty insurance, if reasonably available, for all insurable improvements on the Common Area.  If blanket all-risk coverage is not reasonably available, then at a minimum an insurance policy providing fire and extended coverage shall be obtained.  This insurance shall be in an amount sufficient to cover one hundred percent (100%) of the replacement cost of any repair or reconstruction in the event of damage or destruction from any insured hazard.

To the extent available on commercially reasonable terms and conditions, the Board may also obtain a public liability policy covering the Common Area, the Association and its Members for all damage or injury caused by the negligence of the Association or any of its Members or agents. The public liability shall have at least a One Million Dollar ($1,000,000.00) limit for bodily injury, personal injury, and property damages from a single occurrence.

Premiums for all insurance on the Common Area shall be Common Expenses of the Association and shall be included in the Annual Assessment, as described in this Declaration. The policy may contain a reasonable deductible, and, in the case of casualty insurance, the amount thereof shall be added to the face amount of the policy in determining whether the insurance at least equals the full replacement cost.  The deductible shall be paid by the party who would be liable for the loss or repair in the absence of insurance and in the event of multiple parties shall be allocated in relation to the amount each party’s loss bears to the total.

All insurance coverage obtained by the Board shall be written in the name of the Association as trustee for the respective benefited parties, as further identified below.  Such insurance shall be governed by the provisions hereinafter set forth:

(a) All policies shall be written with a company licensed to do business in North Carolina.

(b) All policies on the Common Area shall be for the benefit of the Association, and its Members.

(c) Exclusive authority to adjust losses under policies obtained by the Association on the Property shall be vested in the Board; provided, however, no mortgagee having an interest in such losses may be prohibited from participating in the settlement negotiations, if any, related thereto.

(d) In no event shall the insurance coverage obtained and maintained by the Board hereunder be brought into contribution with insurance purchased by individual Owners, occupants, or their mortgagees.

(e) Mar- Comm and Associates, Inc., shall be named as additional insured for a period of two (2) years from the Developers receipt of the recorded Plat from the County.

In addition to the other insurance required by this Section, the Board may obtain, as a common expense, worker’s compensation insurance, if and to the extent required by law, directors’ and officers’ liability coverage, if reasonably available, a fidelity bond or bonds on directors, officers, employees, and other persons handling or responsible for the Association’s funds, if reasonably available, and flood insurance if required.  The amount of fidelity coverage shall be determined in the directors’ best business judgment but, if reasonably available, may not be less than three (3) months’ assessments on all Residential Property, plus reserves on hand.  Bonds shall contain a waiver of all defenses based upon the exclusion of persons serving without compensation and shall require at least thirty (30) days’ prior written notice to the Association of any cancellation, substantial modification, or non-renewal.

Except as is permitted in the Declaration or amendments thereto, there shall be no physical partition of the Common Area or any part thereof, nor shall any person or entity acquiring any interest in the Property or any part thereof seek any judicial partition unless the Property have been removed from the provisions of this Declaration.  This Article shall not be construed to prohibit the Board from acquiring and disposing of tangible personal property from acquiring title to real property that may or may not be subject to this Declaration.

Section 1.     Duration.     The covenants, conditions and restrictions if this Declaration shall run with and bind the Property, and shall inure to the benefit of and be enforceable by the Association, the Declarant and any Owner, their respective legal representatives, heirs, successors, and assigns, for a period of twenty (20) years from the date this Declaration is recorded.  Upon the expiration of said twenty (20) year period, this Declaration shall be automatically renewed and extended for successive ten (10) year periods.  The number of ten (10) year renewal periods hereunder shall be unlimited with this Declaration being automatically renewed and extended upon the expiration of each ten (10) year renewal period for an additional ten (10) year period; provided, however, that there shall be no renewal or extension of this Declaration if during the last year of the initial twenty (20) year period, or during the last year of any subsequent ten (10) year renewal period, 100% of the votes cast at a duly held meeting of Members of the Association vote in favor of terminating this Declaration at the end of its then current term.  It shall be required that written notice of any meeting at which such proposal to terminate this Declaration is to be considered, setting forth the fact that such a proposal will be considered, shall be given at least sixty (60) days advance of said meeting. In the event that the Association votes to terminate this Declaration, the President and Secretary of the Association shall execute a certificate which shall set forth the resolution of termination adopted by the Association, the date of the meeting of the Association at which such resolution was adopted, the date that notice of such meeting was given, the total number of votes of Members of the Association, the total number of votes required to constitute a quorum at a meeting of the Association, the total number of votes necessary to adopt a resolution terminating this Declaration, the total number of votes cast in favor of such resolution, and the total number of votes cast against such resolution.  Said certificate shall be recorded in the Public Records of Buncombe County, North Carolina, and may be relied upon for the correctness of the facts contained therein as they relate to the termination of this Declaration.  Termination of the Association shall not have the effect of terminating any easements herein provided or granted prior to such termination, or terminating contractual rights created prior to termination which from the context of the contract were meant to survive termination.

Section 2.     Amendments by Members.     This Declaration may be amended at any time provided that a Majority of all the votes cast by all of the Members represented at a duly called and held meeting of the Association vote in favor of the proposed amendment.  Notice shall be given at least sixty (60) days prior to the date of the meeting at which such proposed amendment is to be considered.  If any proposed amendment to this Declaration is approved by the Members as set forth above the President and Secretary of the Association shall execute an Amendment to this Declaration which shall set forth the amendment, the effective date of the amendment, the date of the meeting of the Association at which such amendment was adopted, the date that notice of such meeting was given, the total number of votes of members of the Association, the number of votes required to constitute a quorum at a meeting of the Association, the number of votes necessary to adopt the amendment, the total number of votes cast for the amendment, and the total number of votes cast against the amendment.  Such amendment shall be recorded in the Public Records of Buncombe County, North Carolina.

Section 3.     Assignment of Rights and Duties.     Upon the approval of 100% of the Members at a duly called meeting, any and all of the rights, powers and reservations of the Association and Declarant may be assigned to any person, corporation or association which will assume the duties of the Association of Declarant pertaining to the particular rights, powers and reservations assigned.  Upon such assignee evidencing its consent in writing to accept such assignment and assume such duties, it shall, to the extent of such assignment, have the same rights and powers and be subject to the same obligations and duties as are herein given to and assumed by the Association or the Declarant.  Further, the Association or the Declarant may from time to time delegate any and all of its rights, powers, discretion and duties hereunder to such agent or agents as it may nominate.

Section 4.     Special Exceptions and Variations.     Unless the written consent of the Association is first obtained no Owner shall file a request for zoning variations, special exceptions or zoning changes affecting or relating to land within the Property.

Section 5.     Dispute Resolution and Enforcement.     In the event of a dispute or disagreement as to any of the terms, provisions, conditions or covenants of the Declaration, the prevailing party shall be entitled to recover from the non-prevailing party, its damages and reasonable attorney’s fees, paralegal fees, costs and interest, through all tribunals and collection efforts.  Enforcement of these covenants, conditions and restrictions whether by any proceeding at law or in equity, may be instituted by the Declarant, its successors or assigns, the Association, its successors or assigns, or any Owner against any person or persons violating or attempting to violate or circumvent any covenant, condition or restriction, either to restrain violation or to recover damages, and against the land and to enforce any lien created by these covenants; and failure by the Association or any Owner to enforce any covenant, condition or restriction herein contained for any period of time shall in no event be deemed a waiver or estoppel of the right to enforce same thereafter.

Section 6.     Severability.     Should any covenant, condition or restriction herein contained, or any Article, Section, Subsection, sentence, clause, phrase or term of this Declaration be declared to be void, invalid, illegal, or unenforceable, for any reason, by the adjudication of any court or other tribunal having jurisdiction over the parties hereto and the subject matter hereof, such judgment shall in no way affect the other provisions hereof which are hereby declared to be severable and which shall remain independent and in full force and effect.

Section 7.     Interpretation.     The Board shall have the right except as limited by any other provisions of this Declaration or the By-Laws to determine all questions arising in connection with this Declaration of Covenants, Conditions and Restrictions and to construe and interpret its provisions, and its good faith, determination, construction or interpretation shall be final and binding. In all cases, the provisions of this Declaration shall be given that interpretation or construction that will best tend toward the consummation of the general plan of improvements or that complies with the North Carolina Statutes.

Section 8.     Authorized Action.     All actions which the Association is allowed to take under this instrument shall be authorized actions of the Association as approved by the Board of Directors of the Association in the manner provided for in the By-Laws of the Association, unless the terms of this instrument provide otherwise.

Section 9.     Termination of Declaration.     Should the Members of the Association vote not to renew and extend this Declaration as provided for herein, all Common Property owned by the Association at such time shall be transferred to another association or appropriate public agency having similar purposes.  If no other association or agency will accept such property then it will be conveyed to a Trustee appointed by the Circuit Court of Buncombe County, North Carolina, which Trustee shall sell the Common Property free and clear of the limitations imposed hereby upon terms established by the Circuit Court of Buncombe County, North Carolina.  The proceeds of such a sale shall first be used for the payment of any debts or obligations constituting alien on the Common Property, then for the payment of any obligations incurred by the Trustee in the operation, maintenance, repair and upkeep of the Common Property.  The excess of proceeds, if any, from Common Property shall be distributed among Owners in a proportion which is equal to the proportionate share of such Owners in Common Expenses.

Section 10.     Execution of Documents.     From time to time the execution of certain documents may be required by governmental authorities.  To the extent that said documents require the joinder of Owners, the Declarant by its duly authorized officers may, as the agent or the attorney-in-fact for the Owners, execute, acknowledge and deliver such documents and the Owners, by virtue of their acceptance of deeds, irrevocably nominate, constitute and appoint the Declarant, through its duly authorized officers, as their proper and legal attorneys-in-fact for such purpose.  Said appointment is coupled with an interest and is therefore irrevocable.  Any such documents executed pursuant to this Section shall recite that it is made pursuant to this Section.

Section 11.     Prohibited Actions.     Notwithstanding anything contained herein to the contrary, the Association will perform no act nor undertake any activity that will violate its non-profit status under applicable state or federal law.

Section 12.     Singular, Plural and Gender.     Whenever the context so permits, the use of the singular shall include the plural and the plural shall include the singular and the use of any gender shall be deemed to include all genders.

Section 13.     Construction.     The provisions of this Declaration shall be liberally construed to effectuate its purpose of creating a uniform plan for the operation of Property.

EXHIBIT “A”

LEGAL DESCRIPTION

Lots 1-51, of THE CROSSINGS AT CANE CREEK, as shown in the Plat recorded in Plat Book 114, Page 176 of the Buncombe County, North Carolina Registry.