Table of Contents
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4. BUILDING AND SITE RESTRICTIONS
5. ARCHITECTURAL CONTROL COMMITTEE
PROCEDURES
8. SETBACKS AND PEDESTRIAN EASEMENTS
19. OPERATION AND OWNERSHIP OF
CYPRESS LANDING GOLF CLUB
20. OPERATION AND OWNERSHIP OF THE
LANDING AND THE MARINA
THIS DECLARATION OF PROTECTIVE COVENANTS, RESTRICTIONS AND
EASEMENTS, dated for purposes of reference only this 18th day of March, 1994,
by WEYERHAEUSER REAL ESTATE COMPANY, a corporation qualified to do business in
the State of North Carolina (hereinafter "Declarant").
Declarant is the owner of real property generally known as Cypress
Landing, which property consists of approximately 900 acres. The property is
more fully described on Exhibit A attached hereto, which property will be
referred to herein as "Cypress Landing." It is the plan and intent of
Declarant to develop a residential subdivision in several phases consisting of
no more than 900 residential living units, plus amenities and service
facilities therefore, within Cypress Landing.
Cypress Landing is located in part on Chocowinity Bay (the
"Bay"). An additional portion fronts Rice Creek, and Silas Creek
meanders through a portion of Cypress Landing. As used herein, all residential
building sites with frontage on the Bay or on either of the above named creeks
shall be referred to as "Waterfront Lots" and that portion of each
Waterfront Lot contiguous to any of such bodies of water shall herein be
referred to as the "Frontage".
Cypress Landing is divided by North Carolina State Road 1123. As
used herein, references to "Phase I" shall refer to that portion of
Cypress Landing located on the north side of said road. References to
"Phase II" shall refer to those portions of Cypress Landing on the
south side of North Carolina State Road 1123.
Development of Cypress Landing is governed in part by the
provisions of the North Carolina Coastal Management Act (the "Act") .
in accordance with the Act, a major development permit has been issued
authorizing the development. As used herein, this permit, being Major CAMA
Development Permit 1181-89 (as amended from time to time) shall be referred to
as the Permit. Nothing contained herein shall prohibit or restrict in any way
Declarant's right or ability, subject to approval by the State of North
Carolina, to amend, modify or extend the Permit. No such amendment,
modification or extension shall, however, authorize any development or activity
specifically prohibited by the provisions of these Protective Covenants.
It is the plan and intent of Declarant to construct certain
recreational amenities for the primary benefit of owners within Cypress
Landing. As more fully described within these
Protective Covenants, these amenities are referenced herein as
follows:
A. BAY CLUB: The community building with attached porches and
decks, located near the Marina.
B. CLUBHOUSE: The building located at the Cypress Landing Golf
Club, which building contains the golf pro shop and snack bar.
C. CYPRESS LANDING GOLF CLUB; All real property, fixtures and
improvements constituting the eighteen (18) hole golf course amenity at Cypress
Landing, including all buildings and other structures constructed to assist in
the maintenance of the golf course and the storage of golf course equipment,
and further including all practice areas.
D. CYPRESS LANDING GOLF CLUB EQUIPMENT; All equipment owned by
Declarant normally and routinely utilized in the operation, upkeep and
maintenance of the Cypress Landing Golf Club. This shall further include all
furniture and fixtures located within the Clubhouse, but shall not include
inventory (food or otherwise) and supplies.
E. THE LANDING; The common area near the Marina, including the Bay
Club, swimming pool, parking areas and other recreational areas and facilities
associated therewith. >
F. MARINA; All piling and decking waterward of the high water mark
or waterward edge of any bulkhead, where bulkhead is located, to the extent
constructed to create or provide access to boats lips, and further including
the boat slips themselves, and all other public trust area within the perimeter
of the outermost decking.
G. NATURE TRAILS; Unpaved but designated pathways for general
pedestrian utilization.
H. BIKE PATHS; Paved access ways designated for utilization by
pedestrians and bicyclists.
1. PEDESTRIAN ACCESS SYSTEM; The combination of Bike Paths and
Nature Trails.
J. TENNIS COURTS; Tennis courts constructed for utilization by
owners within Cypress Landing, and conveyed to the Association as common areas.
K. TRAILER PARKING FACILITY; A common area designated for use by
owners in parking boat and other trailers not allowed to be parked on a Lot or
at a Living Unit.
These recreational facilities, and any others that may be
constructed either by Declarant or by the Cypress Landing Master Homeowners
Association, Inc., shall be referred to herein as the -Amenities." NOTHING
CONTAINED HEREIN SHALL PROHIBIT OR RESTRICT THE UTILIZATION OF SOME OR ALL OF
THE AMENITIES BY USERS NOT OWNING PROPERTY WITHIN CYPRESS LANDING. Such right
of utilization of Amenities by non-property owners within Cypress Landing shall
be governed by the provisions of these Protective Covenants, and by rules and
regulations adopted by Declarant and/or the owner of such Amenities from time
to time.
Declarant has entered into a contract with the Town of Chocowinity
("Town') whereby the Town will provide water and sewage disposal services
to Cypress Landing. This agreement between the Town and Declarant, as it may be
amended from time to time, is referred to herein as the "Contract".
In order to enforce the provisions of these Protective Covenants,
including but not limited to the architectural control standards established
herein, in order to maintain Cypress Landing in a clean and attractive
condition, in order to own, manage and maintain certain of the Amenities as
more fully described hereinafter, and to further provide an organization for
the benefit of the owner of each Living Unit and Lot within Cypress Landing,
Declarant has chartered a North Carolina non-profit corporation named Cypress
Landing Master Homeowners Association, Inc. .(the •Association" ). The
owner of each Lot or Living Unit within Cypress Landing is and shall be a
member of the Association, and the owner of each such lot or Living Unit is and
will be obligated to pay dues and assessments to the Association for the
benefit of the Association and every owner within Cypress Landing. The
organization and operation of the Association is described in these Protective
Covenants and in the By-Laws of the Association.
It is the desire and intention of Declarant, for its benefit and
for the benefit of the purchaser of each Lot and Living Unit within Cypress
Landing, and with the objective of preserving the value of each property, to
restrict the utilization of and improvements within Cypress Landing in
accordance with the guidelines established herein. Therefore, Declarant hereby
subjects the property described hereinafter to the terms and provisions of
these Protective Covenants for the use and benefit of all present and future
owners of Lots and Living Units within Cypress Landing.
As used herein, the word "Lot(s)" shall mean and refer
to any Lot designated for construction thereon of a residential Living Unit
within Cypress Landing, as shown on a recorded subdivision map of record in the
Office of the Register of Deeds of Beaufort County. The term "Living Unit(s)" shall mean a structure or part of a structure designed and
constructed for utilization by a single family, whether detached or attached to
another Living Unit, whether located on a Lot or located on a tract of land
undivided into separate Lots. Where rights are granted to or obligations
imposed upon the owner of a "Lot and/or Living Unit" the intent is to
include the owner of each Lot/whether or not a Living Unit is constructed
thereon, as well as the owner of each Living Unit. The term "Community"
shall mean a group of Lots and/or Living Units sharing one or more common
characteristic, which Community shall be identified by reference in these
Protective Covenants and amendments hereto. Unless otherwise specified by an
amendment to these Protective Covenants, all single family Lots shall be deemed
a part of a single family residential Community.
These Protective Covenants shall run with the land and shall bind
and inure to the benefit of the owner of each Lot and Living Unit within each
Community, and the property currently made subject to these Protective
Covenants is all of the property shown on those plats of Cypress Landing
Subdivision, recorded in Map Cabinet E, Slides 14-9, 14-10 and 14-11, Beaufort
County Registry (Phase I, Section 1) and recorded in Map Cabinet E, Slides 17-7
and 17-8, Beaufort County Registry (Phase I, Section II), as both may be
amended from time to time, as well as all of that property utilized for Amenity
purposes and described on Exhibit A attached hereto.
Declarant reserves the right to subject additional properties to
the terms and provisions of these Protective Covenants by recordation of an
amendment hereto specifically describing such property. The property which may
be made subject to the terms and provisions of these Protective Covenants is
described on Exhibit A attached hereto, but may include additional adjacent
properties thereto (adjacent being defined as inclusive of properties across a
right of way or water body). All or any part of such property may be subjected
hereto; such property may be subjected hereto in one or -more sections.
However, to the extent that any portion of such property has not been subjected
to the terms and provisions of these Protective Covenants by recordation of an
amendment to these Protective Covenants in the office of the Register of Deeds
of Beaufort County, which amendment specifically exercises such right, on or
before December 31, 2005, this right shall terminate. Lots and Living Units
made subject to the terms and provisions of these Protective Covenants by
amendment shall be liable for payment of dues as specified in such amendment;
but in no event, except as specifically provided for herein, shall dues for
Lots and Living Units within each Community be payable later than the
conveyance by Declarant of any Lot or Living Unit within said Community to a
third party. Notwithstanding this provision, to the extent that Declarant
conveys unsubdivided property or multiple Lots to a third party
builder/developer for the purpose of such third party constructing thereon
homes or Living Units, said property need not be subjected to the terms of
these Protective Covenants until such time as structures are constructed
thereon, and dues need not be paid until such time as specified in the
amendment subjecting such properties to the terms of these Protective
Covenants, which time may be at time of conveyance of such a home or Living
Unit to a third party following completion of construction.
No portion of Cypress Landing located within Phase I may be sold
or conveyed by Declarant without being made subject to these Protective
Covenants, and the amendment subjecting additional properties to the terms and
provisions of these Protective Covenants shall not change the following restrictions
contained herein:
A. All such
properties must be limited to residential utilization (except for Amenities
located on properties not designated for construction thereon of Living Units).
B. The
owner of each Lot and Living Unit must be a mandatory member of the
Association.
C. The
owner of each Lot and Living Unit must pay dues and assessments to the
Association as specified within these Protective Covenants.
D. There
shall be no more than six hundred (600) Living Units within Phase 1.
E. All
Living Units must comply with the architectural standards and approval
processes established by these Protective Covenants.
F. The only
permitted uses shall be Living Units, Amenities, utilities and appurtenant
structures reasonably necessary to allow proper use and enjoyment of the Living
Units and the Amenities. Amenities may include commercial uses reasonably
appurtenant thereto, and shall include any recreational structures or
administrative structures constructed by Declarant or the Association.
G. The
required completion date of any Amenity.
H. No
alteration of any buffer, set-back or restriction imposed herein by the Permit
or by the State of North Carolina in accordance with its storm water
regulations.
Amendments subjecting additional properties to the provisions of
these Protective Covenants may change and alter the terms, conditions and
restrictions contained herein as to matters other than those delineated in
subparagraphs A through H set out in the immediately preceding paragraph, but
any such change or alteration shall be effective only as to those Lots or
Living Units subjected by such amendment to the terms, conditions and
restrictions of these Protective Covenants. No such amendment shall change or
alter in any way the applicability or the enforceability of these Protective
Covenants as to the properties described in Paragraph I hereinbefore, or other
properties made subject hereto prior to the recordation of the amendment
specifying said changes (except as allowed by paragraph 14 hereinafter).
It is not the intent of Declarant to currently include Phase II as
a part of the development known as Cypress Landing. However, Declarant may
elect to include or subject all or a portion thereof to these Protective
Covenants. No warranty or representation, however, is hereby made that all or
any portion of Phase II shall' be made subject to these Protective Covenants,
or shall otherwise be restricted as to any legal utilization. Notwithstanding
this provision, however, to the extent that any Amenity is constructed within
Phase II, such Amenity will be governed by the provisions relating thereto
included within these Protective Covenants. No amendment to these Protective
Covenants subjecting additional property hereto, whether within Phase I or
Phase II, shall alter the fact that there shall be one (1) Association vote per
Lot (or per Living Unit) made subject to these Protective Covenants, which vote
may be cast by the owner or owners of such Lot or Living Unit in accordance
with the provisions of the By-Laws of the Association.
This Protective Covenant restricts all numbered Lots subjected to
its terms to use only for residential purposes. All Living Units shall either
be single family, or shall be buildings containing no more than four (4) Living
Units. No Living Unit constructed within any Community shall be utilized for
commercial purposes, except that Declarant or its assigns shall be entitled to
use any structure located within Cypress Landing for purposes relating to the
sale of property within Cypress Landing.
There shall be established as a committee of the Association an
Architectural Control Committee ("Committee"). The Committee has
adopted building guidelines for utilization and evaluation of proposed landscaping
or construction plans. The Committee must give prior approval to the removal of
any tree of a size of six inches or more in diameter, measured one foot above
normal, ground elevation at the location of said tree, from any Lot or the
construction of any improvement or structure on any property subjected hereto
in accordance with the procedures described in Paragraph 5 of these Protective
Covenants, except that no approval shall be required of any Living Unit or
other structure constructed by Declarant. In addition, the following
restrictions shall apply:
A. No detached garage, storage shed, or carport shall be permitted
unless architecturally compatible with the primary Living Unit to which it is
appurtenant. No such structure shall be constructed prior to the construction
of the primary Living Unit on the Lot.
B. No more than one (1) Living Unit shall be allowed per Lot,
unless within a Community specifically reserved, as set out in said amendment,
for construction of buildings containing multiple Living Units.
C. All Living Units must be constructed in accordance with
standards for single family homes included in the North Carolina Uniform
Residential Building Code, notwithstanding whether or not such homes -.are
constructed in whole or in part on site. No home may be moved onto any Lot if
such home has previously been occupied and used as a Living Unit elsewhere. No
mobile home (home built in accordance with manufactured home standards imposed
by the Federal Construction and Safety Standards Act) or other structure
designed for transportation on attached axles and wheels shall be located on
any Lot.
D. No sign shall be allowed on any Lot so as to be visible from
any street right of way or any adjoining property or from any water course or
Amenity, except the following signs, which shall be allowed:
(1) one (1)
sign per Lot, no greater than six square feet in size, specifying the general
contractor actually constructing a Living Unit on such Lot. Such sign must be
removed upon issuance of a certificate of occupancy for the Living Unit;
(2) one (1)
sign per Lot or Living Unit identifying the property upon which such sign is
placed only by the name of the owner and a street number. Such sign must be
constructed at a size, and to specifications and styles, established by the
Committee, and must be located in a place specified by the Architectural
Control Committee;
(3) one (1)
project sign for any patio home or similar development site, which sign shall
not exceed in size fifty (50) square feet, and which shall specify only the
name of the development and developer and the name and location of the selling
agent;
(4) one (1)
sign per Lot or Living Unit no greater than four (4) square feet in size which
includes only the words "For Sale", the name of the selling agent and
the telephone number of said agent. Said sign must be located a minimum of
twenty (20) feet from each street right-of-way. No such sign may be installed
or erected (unless staling "For Sale By Owner*) until such time as the Lot
or Living Unit has been listed by written agreement for sale with the agent
named thereon. Such sign must be removed within two (2) business days following
execution of a
Purchase
Contract for sale of the Lot or Living Unit listed by said agent;
(5) street
or directional signs erected by Declarant or by the Association;
(6) any
sign constructed by any governmental agency; and
(7)
identification and informational signs constructed by Declarant, the purpose of
which is to assist Declarant in identifying the project and the location of
Lots, Living Units, sales offices, Amenities, sales models or other, uses
within Cypress Landing.
All permitted signs, except those constructed by governmental
entity, shall be constructed of materials, in a style, of colors and in a
location established and approved by the Committee.
E. The minimum square footage of heated, enclosed living space for
each approved Living Unit shall be 1,650 square feet for single-level homes and
1,900 square feet for two-level homes; a minimum of 1,200 square feet of such
space must be located in the first living floor of the Living Unit.
Notwithstanding the above stated limitations, the minimum square footage of
heated, enclosed living space for each approved Living Unit constructed on a
Lot with any boundary contiguous with golf course or Waterfront properties
shall be 1,800 square feet for single level homes and 2,000 square feet for
two-level homes, a minimum of 1,300 square feet of such space being located in
the first living floor of the Living Unit. Carports, garages, attics, porches,
patios, decks and basements shall not be considered heated, enclosed living
space.
F. There are no absolute building setback requirements other than
those that may be imposed by a local government or those shown on the recorded
plat of a Community. However, as suggested setbacks, no Living Unit will be
allowed within 40 feet of any street right-of-way or from any waterway or 30
feet from the rear lot line, or within 15 feet of any side Lot line, unless
variations are approved by the Architectural Control Committee. NOTWITHSTANDING
ANY SUGGESTED SETBACK, THE COMMITTEE SHALL HAVE COMPLETE AUTHORITY TO DETERMINE
THE APPROPRIATE BUILDING SITE ON EACH AND EVERY LOT. THERE IS NO GUARANTEE THAT
SUCH APPROVED BUILDING LOCATION SHALL BE WITHIN THE SUGGESTED SETBACKS SET OUT
HEREIN.
G. Patios, decks, overlooks and the utilization of other riparian
rights by construction of improvements or structures (including bulkheads)
shall only be allowed after approval by the Committee and all applicable
governmental agencies, and no such structures will be allowed unless said
structures are compatible with similar or proposed improvements on other Lots
and after a finding that the construction of such structures will not unduly
interfere with the riparian rights or reasonable property expectations of the
owners of other Lots or Living Units within any Community. The type of
construction utilized for bulkheads may be controlled by the Committee based on
appearance, function and environmental engineering criteria. NO SINGLE FAMILY
PIERS ARE PERMITTED, IN ACCORDANCE WITH THE PERMIT. BOAT DOCKAGE IS ONLY
ALLOWED IN THE MARINA.
H. The heights of structures shall be subject to approval of the
Committee in accordance with the standards set out in Paragraph 5 hereunder,
but no structures may exceed in height any height limitations imposed by
Beaufort County.
I. Fences are subject to the complete jurisdiction of the
Committee including location, style, materials and height. As used herein,
fences shall include walls, barricades, shrubbery or other impediments to
reasonable mobility and visibility. Absent an extraordinary showing of need by
the owner of a Lot or Living Unit, no fence shall be allowed along any property
line. Furthermore, absent .such an extraordinary showing, no fence shall be
allowed on any Lot closer to an adjacent water course or golf course than the
distance the Living Unit on the Lot is from said water course or golf course.
The Committee shall only approve the construction of a fence upon a determination
that the fence is aesthetically pleasing; does not detract from the reasonable
value of any Lot or property and does not unreasonably impede the view of any
water course or other attractive feature from any other property.
J. No satellite receiving dish, radio antennae or other similar
device shall be allowed on any Lot.
K. No boat, boat trailer, other trailer, camper, recreational
vehicle, utility vehicle or truck (to the extent that a truck is rated as a one
ton truck or larger) shall be allowed to remain on any street right-of-way or
on any Lot or on any common property controlled by the Association (or any
other homeowners association within Cypress Landing) overnight unless it is
enclosed within a garage that has been constructed in accordance with the
provisions of these Protective Covenants, or .is parked on an area owned by
Declarant or the Association designated specifically for such purpose.
L. The Association has adopted rules and regulations restricting
the location of temporary or permanent clotheslines, the number of vehicles
that may be parked on any Lot, the number, type and location of trash
receptacles and trash receptacle enclosures, and the type and location of
mailboxes.
M. No activity, whether active or passive, that is reasonably
considered a nuisance by the Association shall be allowed within any Community.
This prohibition includes any activities within any structure, on any Lot or on
any street or common area. The Association is specifically authorized by
Paragraph 15 of these Protective Covenants to adopt rules regarding conduct and
use of such properties; however, the Association may find any conduct or use of
a Lot to be a nuisance notwithstanding the fact that such conduct is not
specifically prohibited by these Protective Covenants or by an adopted rule. If
any conduct is deemed by the Association to be a nuisance, and to the extent
that such conduct is not specifically prohibited by the provisions of these
Protective Covenants or by an adopted rule, the Association shall give written
notice to the offending owner specifying the nature of the nuisance, and
requesting that such nuisance be terminated. If any nuisance is not terminated
within a reasonable time thereafter, the Association may pursue any legal or
equitable remedy, and may collect in any such action all attorney's fees
incurred.
N. IN ACCORDANCE WITH THE PROVISIONS OF THE PERMIT, NO LAND
DISTURBING ACTIVITY OF ANY KIND IS OR SHALL BE ALLOWED, EXCEPT AS SPECIFICALLY
AUTHORIZED BY THE PERMIT, BELOW THE TEN (10) YEAR FLOOD PLAIN ELEVATION OF
SEVEN FEET. THE PERMIT AUTHORIZES NO STRUCTURE TO BE CONSTRUCTED WITHIN SAID
FLOOD PLAIN ON ANY LOT.
O. There is hereby created a conservation zone five feet in width
along the Frontage, measured landward from the normal water level. No structure
may be constructed by any person or entity within such zone except that a
bulkhead may be constructed upon the issuance of all required regulatory
permits and upon approval by the Association. Complete plans and specifications
for construction of any such bulkhead shall be submitted to the Association by
the person or entity desiring to construct such bulkhead a minimum of thirty
(30) days prior to commencement of construction. Said conservation zone shall
also constitute an easement to the Association for the purposes of ingress and
egress to the Frontage to be utilized only in the event of any emergency
condition threatening life or property, and shall in no way be construed as
permission to the Association or its membership to utilize such easement for
non-emergency access to the Frontage. With the exception of access in times of
emergency and the restrictions imposed upon the utilization of such area
contained herein, the owner of each Lot subjected to the conservation zone and
easement contained herein, unless otherwise limited by a provision of these
Protective Covenants, shall have complete ownership and control of such area.
P. In order to encourage water conservation, no automated
irrigation system shall be allowed unless supplied from an irrigation well
constructed at the expense of the Lot owner.
Q. In order to further encourage water conservation, the Committee
shall require in the construction of each Living Unit that water saving shower
heads and toilets be exclusively utilized. Such water saving devices shall be
utilized at all times thereafter.
R. At the time of construction of a Living Unit, its owner shall
cause said Living Unit, as required by the Contract, to connect to the water
and sewage disposal system of the Town. All connection, tap-on or other charges
associated with such connection shall be paid by the owner of the Living Unit.
Declarant shall, at its own expense, cause necessary utility service to be
extended along the street right-of-way adjacent to each Lot, and shall provide
a stub and connection point at each property line.
S. No Living Unit may be leased or rented to a non-owner thereof
for a rental term less than one (1) month.
T. The owner of any Lot or Living Unit adjacent to any lake within
Cypress Landing may, from the property owned by such owner, utilize such lake
for bank fishing purposes. No fishing shall be allowed from the bank located on
Cypress Landing Golf Club property unless in accordance with rules and
procedures established by the owner of the Cypress Landing Golf Club. Lakes
shall not be utilized for any other recreational purpose, including swimming,
boating, rafting or canoeing, unless such activity is specifically approved by
the Association. No shoreline stabilization shall be allowed unless approved by
the Committee.
U. Each unimproved Lot shall be maintained in a sightly condition,
comparable to the condition of unimproved Lots offered for sale by Declarant.
In order to ensure compliance with this requirement, the Association shall, no
less frequently than annually, cause each such unimproved Lot to be mowed, and
trash and debris located thereon to be removed. To compensate the Association
for this expense, the owner of each unimproved Lot shall pay to the
Association, as • a special category of dues, collectable in the nature of dues
or an assessment as allowed in accordance with paragraph 6 of these Protective
Covenants, the sum of ONE HUNDRED DOLLARS ($100.00) per year (or any portion of
any year in which such mowing has actually occurred). Annually, beginning with
the January 1, 1995, year, the Association may increase this amount sufficient
to compensate the Association for the actual increase in the per Lot cost of
having this annual service performed on behalf of the owner.
V. No general landscaping of any Lot shall be approved or
undertaken more than thirty (30) days prior to the commencement of construction
on said Lot of the primary Living Unit to be located thereon. This provision
shall not preclude the permitting of removal of underbrush or damaged or
diseased trees.
A. Submittal of Plans. At least thirty (30) days prior to the
anticipated commencement of any landscaping or construction of any structure or
improvement on any Lot, the owner of such Lot (or his duly appointed agent)
shall submit to the Chairman of the Committee a survey of the Lot, which survey
shall show each Lot corner. There shall further be shown on said survey the
proposed location of all proposed and existing structures or improvements,
including driveways, bulkheads, patios, decks and walkways, and further
including a specific delineation of the •proposed location of all improvements
that will result in the creation of impervious surfaces as defined by the
Division of Environmental Management of the State of North Carolina in
accordance with the North Carolina Coastal Storm water Regulations. There shall
further be provided to the Committee sufficient building elevations and
landscape plans, including a statement of exterior building materials and
proposed exterior colors, to allow the Committee to appropriately and
accurately evaluate what is proposed for construction on the Lot. The location
of a proposed well (if any) shall 'also be delineated. Specifications for toilets
and showerheads shall be included with the submission of any plans which
contemplate installation of improvements utilizing such fixtures. The survey,
building elevations and landscape plans shall be of professional quality. There
shall be submitted two copies of all information required to be submitted.
B. Disclosure of Contractor. The owner of each Lot shall notify
the Committee of the identity of the contractor proposed for construction of
any major improvements on any Lot. Major improvements shall be all improvements
of a reasonable construction cost of $10,000.00 or more. The owner of each Lot
shall include with the name of the contractor a statement as to the
classification of contractor's license held by such contractor and the address
and telephone number of the contractor. This information shall be submitted to
the Committee at time of submission of plans, if such information is available
at that time; if the information is not available at that time, the information
shall be submitted to the Committee at least thirty (30) days prior to
commencement of construction. NO PRIMARY STRUCTURE MAY BE CONSTRUCTED BY THE
OWNER OF A LOT UNLESS SAID OWNER .HOLDS A VALID CONTRACTOR'S LICENSE APPLICABLE
TO SUCH STRUCTURE.
C. Standards for Approval. Within thirty (30) days after receipt
of all required information, the Committee shall notify in writing the owner of
the Lot whether or not the requested improvements are approved. Unless a
response is given by the Committee within thirty (30) days, the plan shall be
deemed approved. The response of the Committee may be an approval, a denial, an
approval with conditions or a request for additional information. A request for
additional information shall be deemed a determination that the information
submitted was inadequate, and the thirty (30) day time for response shall only
commence upon receipt of the requested additional information. If approval with
conditions is granted, and construction then begins, the construction shall be
deemed approval by the owner of the Lot of the conditions imposed.
The Committee shall approve the plans as submitted, if all
required information is submitted, and the following affirmative findings are
made by the Committee:
(1) that
the improvements sought to be constructed will not have negative economic
impact ton any other property within Cypress Landing;
(2) that
all required specific building standards and other conditions contained within
the Protective Covenants and other applicable legal documents have been met;
(3) that
the improvements are architecturally compatible with proposed or constructed
improvements on other properties within its Community;
(4) that
the natural features of the Lot have been retained to the maximum extent
feasible;
(5) that
the improvements have been situated on the Lot within the suggested setbacks
contained in paragraph 4(f) of these Protective Covenants, or location
elsewhere furthers consistency with subparagraph (1), (2), (3) or (4) of this
paragraph 5C; and
(6) that
the impervious surface limitation coverage proposed on each Lot is consistent
with the requirements of the Division of Environmental Management Coastal Storm
water Regulations •
The owner of each proposed Living Unit shall comply with the
requirements of this Paragraph 5, whether or not such proposed Living Unit is
to be constructed on a Lot, or on a multi-family development site. The
developer of any development site proposed for construction of Living Units not
to be conveyed by Lot shall further abide by the provisions of this paragraph 5,
and shall submit the required information for the entire development site.
D. Right of Appeal. Any owner disagreeing with the finding of the
Committee may appeal the decision to the Board of Directors of the Association
by giving written notice of appeal to the President of the Association within
fifteen (15) days following receipt of notice of denial (or notice of
imposition of conditions unacceptable to said owner). The Board of Directors of
the Association shall then review the plans, giving the Chairman of the
Committee the opportunity to present to the Board of Directors of the
Association specific reasons why the plans were denied, in the presence of the
owner or his agent, and the owner or his agent may present information
challenging the findings of the Committee. The decision of the Committee shall
only be overridden by unanimous vote of the Board of Directors of the
Association.
E. Notices. All notices required to be given herein shall be given
in writing, hand-delivered or mailed postage prepaid, return receipt requested,
and the Committee shall be obligated to specify the particular grounds upon
which denial of any application is founded. One set of plans, denoted as
approved (or approved with specified conditions) shall be retained by the
Architectural Control Committee and the other shall be returned to the
applicant.
F. Declarant ' s Reservation of Rights. Notwithstanding any
provision to the contrary contained within these Protective Covenants,
Declarant reserves unto itself all rights and obligations assigned by these
Protective Covenants to the Committee until the earlier of the following:
(1)
Assignment of such responsibilities to the Association by written instrument,
which instrument shall be recorded in the Office of the Register of Deeds of
Beaufort County; or
(2) The
Association membership meeting at which the majority of the' Board of Directors
of the Association are selected by vote of members of the Association.
A. Membership. The owner or owners of every Lot or Living Unit
shall be a voting member of the Association. However, only one vote shall be
allowed per Lot with Living Unit; to the extent that there is more than one
owner of any one Lot or Living Unit, said owners shall determine among
themselves, and designate, one voting member, which voting member shall cast
the vote allocated. If the owners cannot agree among themselves, the Board of
Directors of the Association shall determine and designate a voting member from
among the owners. The Association shall be governed by a Board of Directors,
selected in accordance with the By-Laws of the Association, and the Association
shall operate and do business in accordance with the terms of its By-Laws. The
Board of Directors of the Association shall select in accordance with the
By-Laws the Committee.
B. Streets. Declarant shall construct all streets within each
Community to standards specified by the State of North Carolina for residential
streets. The State of North Carolina, in accordance with policies in effect at
the time of the recordation of these Protective Covenants, accepts for
maintenance purposes streets so constructed upon achievement of a State
specified density of construction along said street. Declarant shall maintain
such streets to standards imposed by the State of North Carolina until the
earlier of the following:
(1)
Completion of its development obligations in Phase I as to streets in Phase I,
and in Phase II as to streets in Phase II, which shall mean complete
construction of all proposed streets and roads within each Phase, and
completion of all Amenities required by these Protective Covenants to be
constructed within such Phase; or
(2)
Acceptance by the State of North Carolina of maintenance responsibilities for
such street.
The Association shall have the responsibility of maintaining in
good condition all streets within each Community, during the period, if any,
between completion of Developer's street maintenance obligations and the
assumption by the State of North Carolina of street maintenance obligations.
The Association shall be obligated to accept conveyance of such streets upon
tender of a deed therefore by Declarant, if said deed is tendered at a time
allowed by these Protective Covenants, and if such tender is accompanied by a
statement from an authorized representative of the Department of Transportation
of the State of North Carolina which affirmatively indicates that the condition
of the street and its right-of-way meet standards established by the State of
North Carolina, assuming proper density of home construction,' for the State to
accept maintenance of such street and right-of-way.
C. Street Lighting. The Association shall further at all times
maintain in good, working condition all street lights or area lights
constructed within any Community and constructed for common benefit, to the
extent such street lights or area lights are not owned and/or maintained by a
public utility. The Association shall further have the responsibility of
maintaining a sightly appearance along all street rights-of-way, utility
easements adjacent thereto and pedestrian access ways.
D. Amenity Ownership and Maintenance. The Association shall have
the responsibility of maintaining in good condition all Amenities when and if
conveyed to the Association in accordance with the provisions of these
Protective Covenants, and thereafter shall be responsible for adopting rules
and regulations governing utilization of such Amenities (subject to the
limitations contained herein). To the extent deeded to the Association, the
Association shall be obligated to accept ownership of all Amenity areas
designated on any recorded subdivision plat of any portion of Cypress Landing
made subject to the terms and provisions of these Protective Covenants. As more
fully described hereinafter, Declarant will convey to the Association the
Landing, the Marina, the Tennis Courts, the Trailer Parking Facility and the
Pedestrian Access System (by fee or easement). Declarant is not obligated to
convey 1:0 the Association the Cypress Landing Golf Club or Cypress Landing
Golf Club Equipment. The approximate location and size of all Amenity areas are
designated on the Cypress Landing Master Development Plan dated July 15, 1993,
prepared by Paton Zucchino & Associates, P.A., a copy of which is and will remain
on file with Declarant in its Cypress Landing Sales Facility until development
is complete, and which Master Development Plan, may be examined at any
reasonable time by the owner or any prospective owner of any Lot. Said plan may
be updated and amended from time to time, with such updated version similarly
being retained for examination.
E. Services and Assistance of the Association. To the extent
necessary, the Association may employ personnel necessary to perform its
obligations, or needed to benefit the owners of Lots and Living Units within
Cypress Landing. The Association shall have the obligation to provide for
itself and for the benefit of each owner all necessary professional services to
promote the proper maintenance of all Amenities and to provide the smooth,
proper and legal administration of the Association. These services may include
services of an engineer, lawyer, accountant or other professional. The
Association is specifically authorized to provide such other incidental
services for the benefit of Cypress Landing and in the management of the
Association as deemed reasonably necessary by the Board of Directors of the
Association. The Association shall maintain common properties as warranted by
Declarant in any amendment to these Protective Covenants or in any deed
warranty.
The Association shall have the optional authority to provide any
service it believes desirable, including, but not limited to cable television,
waste collection or utility service. Such services may be provided by the
Association directly, by a subsidiary owned by the Association or by contract
with a third party. Assessments may be collected to pay for the provision of
such -services. Such services must be for the benefit of owners of Lots or
Living Units.
F. Reserves. The Association need not maintain a capital reserve
fund for street replacement because of the likelihood that the State of North
Carolina will assume maintenance responsibilities for all streets at or soon
after the time of relinquishment of such maintenance by Declarant. Reserve
funds for Amenities need not be maintained until such time as an Amenity is
constructed and conveyed to the Association. Following such construction and
conveyance, the Association shall maintain reasonable reserves for replacement
of depreciable tangible assets, including, but not limited to buildings,
structures and parking areas. Reserves shall be maintained based on an
estimation of the life of an asset, and may, at the discretion of the Board of
Directors, be based on estimated replacement cost utilizing current values as
of the date of the then budget year. The Board of Directors of the Association
shall not be liable to any owner or to any third party for failure to maintain
adequate reserves to the extent that said Board of Directors in good faith
attempts to comply with the reserve obligations contained within these
Protective Covenants, notwithstanding the fact that a significant expenditure
is required in a greater amount or at an earlier date than had been reasonably
anticipated. Declarant, at time of conveyance of Amenities to the Association,
shall convey the Amenities in good and usable condition; such Amenities need
not be "like new", however.
G. Dues and Assessments. In order to fund the Association's
obligations, the owner of every Lot and Living Unit is obligated and bound,
whether or not expressly stated in any instrument of conveyance, to pay to the
Association the following:
(1) annual
charges or dues; and
(2) special
assessments.
All such assessments, charges, and dues, together with any
interest thereon, shall be a charge on the land and Living Unit and shall be a
continuing lien upon the property against which such assessments are made.
Liens shall be perfected in the manner of a mechanic ' s or materialmen ' s lien
under North Carolina General Statutes, and any lien for dues unpaid shall be
filed within nine (9) months after the due date of the payment of such
assessment. The due date shall be the first day of the fiscal year of the
Association, as to annual dues; and the date established for payment of a
special assessment, as more fully set out hereinafter. Any such lien may be
enforced in the manner of a deed of trust with power of sale, as allowed by
North Carolina General Statutes, through a foreclosure proceeding. This
instrument shall be deemed to give to the President of the Association said
power of sale.
Annual assessments shall be in an amount determined by a majority
vote of the Directors of the Association. The initial annual assessment for an
unimproved Lot shall be $120.00 per Lot* This initial annual assessment is due
and payable prior to the construction of most Amenities, and it is to be
anticipated that the annual assessment will increase upon construction of
improvements on the Amenities for the benefit of owners of Lots. The fiscal
year of the Association shall be the calendar year; dues for the first year of
the Association, prorated by date of closing, shall be payable to the
Association by a Purchaser at closing. Declarant shall pay dues for all unsold
Lots within each Community beginning on the first day of the month following
the first conveyance of a Lot in said Community to a third party by Declarant.
Beginning with January I of the year following issuance of a building permit
for construction of a Living Unit on a Lot, the dues for each such Lot for
which a building permit for construction of a Living Unit has been issued shall
be twice the then determined assessment for each unimproved Lot. No amendment
to these Protective Covenants, unless approved by Declarant and all owners of
Lots within the Community, shall alter the ratio of dues paid by the owner of
an unimproved Lot compared to the dues paid by an owner of an improved Lot. The
amendment to these Protective Covenants subjecting a development site to the
provisions of these Protective Covenants shall specify the beginning date for
dues payments per Living Unit if Lots for sale are not proposed therein. As
more fully set out hereinbefore. Declarant may convey multiple Lots or
unsubdivided sites to a builder or developer for the purpose of constructing
Living Units thereon prior to sale to the ultimate users; to the extent such
election is made by Declarant, the collection of dues for such Lots or
properties, as more fully specified 'in the amendments subjecting such Lots or
properties to the terms of these Protective Covenants, may delay the effective
date for the payment of dues thereon until such time as Living Units
constructed thereon are conveyed by the builder thereof to the proposed occupant
thereof.
A special assessment may be levied from time to time by vote of a
minimum of 70% of the total votes cast in any regular or special meeting,
called in accordance with the By-Laws. A special assessment may be made for any
purpose for which expenditures are allowed in accordance with this Declaration.
The resolution approving a special assessment shall specify the date payable.
Notwithstanding any provisions of these Protective Covenants,
including this Paragraph 6, the Board of Directors shall have authority to levy
any special assessment if, in the sole discretion of said Directors, the
assessment is reasonably required to protect properties impacted in case of an
emergency, such as a storm. In such event, the Directors shall give written notice
to the members so affected as promptly as possible after the determination of
said assessment and the action shall be binding as though ratified by the
requisite vote of the owners. By amendment to these Protective Covenants or by
deed covenant. Declarant may require the owner of any Lot or Living Unit to pay
to the Association as a special assessment sums to be utilized by the
Association for the particular benefit of such owner, such as to maintain new
lines over common property for the benefit of such owner.
These Protective Covenants, including any amendment hereto, may be
enforced by any individual Lot or Living Unit owner; by the Association, upon
approval by its Board of Directors; or by Declarant, as long as Declarant owns
any property within Cypress Landing. Appropriate remedies shall include, but
are not limited to, specific performance, in any action to enforce these
Protective Covenants, including any action to collect assessments, either
regular or special, or to foreclose upon any real property for non-payment of
such assessment, all costs associated with said collection, including court
costs and reasonable attorney's fees, shall be collected as an additional
assessment. In addition, interest at the rate of eighteen percent (18%) per
annum shall be collected from the due date of any assessment, until the
assessment is paid in full.
The State of North Carolina is given specific authority to enforce
these covenants to the extent necessary to cause compliance with the impervious
surface limitations imposed by the North Carolina Coastal Storm water
Regulations, or to enforce specific provisions of the Permit. The State of
North Carolina is specifically granted authority to enforce these Protective
Covenants for such purposes, the remedies available to the State of North
Carolina to include, without limitation, the remedy of specific performance.
All setback and building restriction areas, and allowable building
areas, as shown on any recorded subdivision plat of any Community, shall be
incorporated herein by reference. There shall be designated on one (1) or more
recorded plats one (1) or more easements for the purpose of inclusion of such
area within the Pedestrian Access System. Such easements are for the benefit of
the Association and its members. To the extent that any such easement crosses
the boundaries of any Lot, the owner of the Lot shall take ownership of said
Lot subject to said easement, and the owner of such Lot shall construct no
structure nor conduct any activity that reasonably impedes, the free use of the
Pedestrian Access System by those entitled to its use. The Association shall
adopt rules and regulations governing use of such Pedestrian Access System and
shall maintain such Pedestrian Access System in usable, clean and sanitary
condition.
These Protective Covenants shall j continue in full force and
effect until 12:00 noon on January I, 2005, at which time they shall
automatically extend for additional successive periods of ten (10) years,
unless a document terminating or modifying these Protective Covenants is
recorded prior to any renewal date in the office of the Register of Deeds of
Beaufort County, which amendment shall require approval of sixty-seven percent
(67%) of the Lots and Living Units subjected to these Protective Covenants
(including any amendments hereto). No amendment shall be made which alters the
rights granted by these Protective Covenants to non-Association members
entitled to utilize the Marina or the Cypress Landing Golf Club. No amendment
shall alter the rights-or obligations of Declarant without Declarant's written
consent. No amendment shall become effective until recorded in the Office of
the Register of Deeds of Beaufort County.
All covenants, restrictions, reservations, easements and
privileges contained herein shall run with the land and the grantee, by
accepting any deed to any portion of such land subjected hereto, accepts the
same subject to these Protective Covenants and its terms and conditions and
agrees for himself, his heirs, successors and assigns, to be fully bound by
each and all of the terms and conditions of these Protective Covenants,
jointly, separately, and severally.
Declarant hereby reserves the right to utilize all streets and
roads within each Community for purposes of ingress and egress to properties
within Cypress Landing owned by it, or for purposes of providing access to
other contiguous properties owned by it. This right shall be assignable by Declarant to successors in interest to it of properties described on Exhibit A.
Any utility easements reserved as shown on any recorded plat (and all roadways
shall be deemed for this purpose a utility easement) shall be available for
utilization by Declarant, authorized utility companies (including the Town of
Chocowinity), or by the owner of any Lot or Living Unit within Cypress Landing,
for purposes of providing utility services or necessary drainage, but as to Lot
or Living Unit owners, only upon approval of the Association given by its Board
of Directors.
No resubdivision of any single Lot shall be allowed, if any
resulting Lot will be smaller in size than any of the Lots resubdivided, prior
to resubdivision, except that nothing contained herein shall prohibit the owner
of a Lot from conveying by deed or easement a portion of a Lot to an adjoining
Lot owner for the purpose of curing an encroachment or setback violation.
Nothing contained herein shall prohibit conveyance of more than one Lot, or
portions of contiguous Lots, as long as the resulting Lot or Lots are greater
in size than those originally subdivided. The deed of conveyance of any such
resubdivided or recombined Lots shall restrict the construction thereon to one
Living Unit per redivided Lot, so that the maximum number of homes which can be
constructed within each Community shall not increase. Upon the recombination of
any Lots to reduce the total number of allowable building Lots within a
Community, for purposes of membership in the Association and for purposes of
the payment of dues and assessments, any recombined Lots shall be considered a
single Lot upon recordation of a plat so showing in the office of the Register
of Deeds of Beaufort County. Furthermore, should any Lot be determined by
Declarant to be unbuildable, and should such Lot then be deeded to the
Association as common area, or dedicated by Declarant as recreation or open
space, area for the benefit of the Association, all by document duly recorded
in the office of the Register of Deeds of Beaufort County, there shall be no
further dues owed from the date of such recordation; however, any dues prepaid
shall not be reimbursed.
There is hereby reserved for the benefit of the Association, the
Town and the owner of each Lot and Living Unit a utility, drainage and
maintenance easement running parallel to each street a width of 10 feet, and
parallel to each side and rear Lot line a width of five feet, and adjacent to
the Cypress Landing Golf Club property a width of ten feet. The Town is further
reserved an easement, as required by the Contract, over each and every Lot to
allow access to, maintenance of or replacement of each component of the water
and sewage disposal system servicing each Lot. Utilization of any easement by
anyone other than the Lot owner across which such easement runs, the Town or a
public utility shall be made only upon approval of the Board of Directors of
the Association. There is further reserved for the benefit of Declarant and any
assignee an easement ten feet in width adjacent to any golf course property.
This easement may be utilized by the Declarant or by the owner of the Cypress
Landing Golf Club for purposes of construction and maintenance on and of the
golf course, and no improvements or plantings shall be made by the owner of any
Lot within such easement area except normal grass or lawn.
Declarant, or its successors or assigns, shall be allowed to amend
these Protective Covenants, notwithstanding any other provision contained
herein, and without joinder of any other party, for the purpose of correcting
any discovered error contained herein, clarifying any ambiguity contained
herein, or adding or deleting any incidental provisions deemed in the sole
discretion of Declarant to be in the best interest of Cypress Landing, and the
owners therein. This right may be exercised, and shall be effective, only upon
the recordation of a "Corrected Declaration" in the office of the
Register of Deeds of Beaufort County, which Corrected Declaration shall
specifically reference this document, and the provision impacted. '
The Board of Directors may from time to time establish rules for
use of any property within Cypress Landing in order to protect the value of
Lots, the aesthetic qualities of each Community and the tranquility of the
owners. Said rules may include, but are not limited to, reasonable restrictions
on pets, rental use of homes, and parking of cars, trailers, boats, campers and
other vehicles on Lots and streets. All such rules shall be effective after
written notice of adoption is mailed to the record owners of all Lots and
Living Units as of the date of the adoption of such rule. All such rules shall
be enforceable as though set out within these Protective Covenants.
Each owner acknowledges that owning property adjacent or in close
proximity to a golf course involves certain risks which may have an affect on
the utilization or enjoyment of such Lot. Owner acknowledges that such risks
may include (as examples and not as a limitation on the generality of such
risks) golf balls being hit into a Lot, with the potential of causing bodily
injury or physical damage to property, and further including golfers coming
onto a Lot to look for errant golf balls. Owner hereby expressly assumes such
risk and agrees that neither Declarant nor any other entity owning or managing
the golf course shall be liable to any owner of any Lot or anyone claiming any
loss or damage, including, without limitation, indirect, special or
consequential loss or damage arising from personal injury, destruction of
property, trespass or any other alleged wrong or entitlement to remedy based
upon, due to, arising from or otherwise relating to the proximity of any Lot to
the golf course, including, without limitation, any claim arising in whole or
in part from the negligence of Declarant or any other entity owning or managing
the golf course. Each owner hereby agrees to indemnify and hold harmless
Declarant or any other entity owning or managing the golf course against any
and all claims by said owner and his guests, invitees or licensees with respect
to the above. Nothing in this paragraph shall restrict or limit any power of
Declarant or any other entity owning or managing the Cypress Landing Golf Club
to change the design of the golf course, and such changes, if any, shall not
nullify, restrict or impair the covenants and duties of the owner of any Lot
contained herein.
Every Lot and development site is burdened with an easement
permitting golf balls unintentionally to come upon the Lot or site and for
golfers at reasonable times and in a reasonable manner to come upon the
exterior portions of the Lot or site to retrieve errant golf balls; provided,
however, if any Lot is fenced or wailed as approved in accordance with this
'Declaration by the Association, the golfer shall seek the owner's or
occupant's permission before entry. Declarant shall use its best efforts to
have the entity managing or operating the Cypress Landing Golf Club conspicuously
to denote all property on any Lot or building site as out of bounds. Every
owner of every Lot or Living Unit, by acceptance of delivery of a deed, assumes
all risks associated with errant golf balls, and each such owner agrees and
covenants not to make any claim or institute any action whatsoever against Declarant, the golf course designer or operator or any other party relating to
the design and utilization of the Cypress Landing Golf Club relating to any
errant golf bail, any damages caused thereby, or for negligent design of the
golf course or siting of the Lot or Living Unit.
Declarant agrees to record in the Office of the Register of Deeds
of Beaufort County a restrictive covenant for the benefit of the Association
and all of its members, which restrictive covenant shall, for a period of not
less than ninety-nine (99) years from 'such recordation, limit the use of the
Cypress Landing Golf Club property to use as a golf course and related or other
recreational uses (such as swimming or tennis).
By virtue of ownership of a Lot or Living Unit, its owner (and his
guests, subject to rules and regulations of the Association) shall have the
right, without payment of user fees, and as long as such owner is current on
the payment of dues and assessments properly due and payable to the
Association, to utilization, upon completion of construction, of the Pedestrian
Access System, the Tennis Courts, the Trailer Parking Facility, The Landing
(exclusive of those portions of the Bay Club leased to the operator of the
Marina) and each and every other park or common area conveyed by Declarant to
the Association and shown on the recorded plat of any Community. THE. OWNER OF
EACH LOT OR LIVING UNIT, HOWEVER, SHALL HAVE NO DIRECT OWNERSHIP IN ANY OF SUCH
AMENITIES; ACTUAL OWNERSHIP OF ALL OF THOSE DESIGNATED AMENITIES SHALL BE
CONVEYED BY DECLARANT TO THE ASSOCIATION FOLLOWING COMPLETION OF CONSTRUCTION
OF SUCH AMENITIES, AS SPECIFIED HEREINAFTER.
THE OWNER OF EACH LOT OR LIVING UNIT ACKNOWLEDGES THAT MEMBERSHIPS
ENTITLING USE OF THE CYPRESS LANDING GOLF CLUB WILL BE OFFERED BY DECLARANT OR
ITS SUCCESSOR IN OWNERSHIP, IN ACCORDANCE WITH SUCH TERMS AND CONDITIONS AS
ESTABLISHED FROM TIME TO TIME IN THE SOLE DISCRETION OF THE OWNER OF SUCH
FACILITIES. WHEN MEMBERSHIPS ARE MADE AVAILABLE, THE OWNER OF EACH LOT AND
LIVING UNIT MAY APPLY FOR MEMBERSHIP ON THE TERMS MADE AVAILABLE BY THE OWNER
OF SUCH FACILITIES. THE OWNER OF EACH LOT AND LIVING UNIT ACKNOWLEDGES THAT, BY
PURCHASING OR PAYING FOR ANY PROPERTY, OR BY ACQUIRING MEMBERSHIP IN THE
ASSOCIATION, SAID OWNER DOES NOT ACQUIRE ANY VESTED RIGHT OR EASEMENT,
PRESCRIPTIVE OR OTHERWISE, TO USE ANY PORTION OF THE CYPRESS LANDING GOLF CLUB,
NOR DOES SUCH OWNER ACQUIRE ANY OWNERSHIP OR MEMBERSHIP INTEREST IN THE CYPRESS
LANDING GOLF CLUB. FURTHERMORE, THE ASSOCIATION HAS NO VESTED RIGHT OR
EASEMENT, PRESCRIPTIVE OR OTHERWISE, OR ANY OWNERSHIP INTEREST IN THE CYPRESS
LANDING GOLF CLUB.
FURTHERMORE, THE OWNER OF EACH 'LOT AND LIVING UNIT ACKNOWLEDGES
THAT THE UTILIZATION OF THE MARINA WILL BE OFFERED BY DECLARANT OR ITS
SUCCESSOR IN OWNERSHIP, IN ACCORDANCE WITH SUCH TERMS AND CONDITIONS AS
ESTABLISHED FROM TIME TO TIME IN THE SOLE DISCRETION OF THE OWNER OF SUCH
FACILITIES. WHEN BOAT SLIPS WITHIN THE MARINA ARE MADE AVAILABLE FOR LEASE,
EVERY OWNER MAY APPLY FOR UTILIZATION ON THE TERMS MADE AVAILABLE BY THE OWNER
OF SUCH MARINA. THE OWNER OF EACH LOT AND LIVING UNIT ACKNOWLEDGES THAT, BY
PURCHASING OR PAYING FOR A LOT OR LIVING UNIT, OR BY ACQUIRING MEMBERSHIP IN THE
ASSOCIATION, SAID OWNER DOES NOT ACQUIRE ANY VESTED RIGHT OR EASEMENT,
PRESCRIPTIVE OR OTHERWISE, TO USE THE FACILITIES, NOR DOES SUCH OWNER ACQUIRE
ANY OWNERSHIP OR MEMBERSHIP INTEREST IN SUCH MARINA. FURTHERMORE, THE
ASSOCIATION HAS NO VESTED RIGHT OR EASEMENT, PRESCRIPTIVE OR OTHERWISE, OR ANY
OWNERSHIP INTEREST IN THE MARINA UNTIL SUCH TIME AS THEY ARE CONVEYED TO THE
ASSOCIATION.
Notwithstanding these provisions, to the extent that the Cypress
Landing Golf Club or the Marina are ultimately conveyed to or purchased by the
Association, the Association shall be entitled to all rights reserved to Declarant or its successors and assigns herein, and the Association shall
specifically have the right to require the payment of dues, fees or rentals for
use of the Cypress j Landing Golf Club and/or the Marina.
Declarant warrants and represents that the Amenities will be
substantially completed on the following schedule:
A. Golf Course. December 1, 1996 (projected December 1, 1995,
dependent upon weather and construction conditions ) . Construction will
commence no later than October I, 1993, and will proceed in reasonable due
course until completion;
B. Golf Course Clubhouse. Two years after opening of The Cypress
Landing Golf Club for play;
C. Tennis Courts. A minimum of two by December 31, 1995; at least
a total of four no later than December 31, 1998;
D. Marina. First slips by December 31, 1994, additional slips as
demand necessitates;
E. Bay Club. (including swimming pool and parking): December 31,
1995;
F. Trailer Parking Facility. Temporary location by December 31,
1994, permanent location by December 31, 1995; and
G. Pedestrian Access System. As to each Community, the Pedestrian
Access System therein will be installed within said Community with one (1) year
following conveyance of any Lot shown on a recorded subdivision plat of said
Community.
A.
Dedication. Declarant shall by recordation of restrictive covenants dedicate
for golf course utilization (including the Clubhouse, driving range, golf
maintenance and storage facilities and lakes) no less than one hundred
twenty-five (125) acres of Cypress Landing. Declarant shall construct thereon,
at its own expense, an eighteen (18) hole golf course, a Clubhouse and
necessary golf equipment storage and maintenance facilities. Declarant shall
also purchase or lease equipment necessary to operate and maintain the golf
course and its related facilities. Declarant shall retain ownership of the Cypress
Landing Golf Club and the Cypress Landing Golf Club Equipment until conveyed to
a third party in accordance with the limitations contained within this
paragraph 19.
B. Declarant ' s Ownership. During the time it retains ownership
of the Cypress Landing Golf Club, Declarant shall be entitled, without claim by
the owner of any Lot, Living Unit or the Association, to retain all initiation
fees, charges, green fees, cart fees, proceeds from food sales, proceeds from
merchandise sales and any and all other revenues relating to the ownership or
use of the Cypress Landing Golf Club and the Cypress Landing Golf Club
Equipment, without any accounting thereof required to be given to any person or
entity, including the owner of any Lot or Living Unit or the Association.
Declarant shall also bear all expense associated with the construction,
operation and maintenance of the Cypress Landing Golf Club. As long as
Declarant owns the Cypress Landing Golf Club, no part of any dues or
assessments paid to or collected by the Association shall be utilized for the
construction, operation or maintenance of the Cypress Landing Golf Club.
Subject to the restrictions contained herein, Declarant shall have
the right to sell or convey, upon terms and upon conditions satisfactory to
itself, the ownership of the Cypress Landing Golf Club and the Cypress Landing
Golf Club Equipment. All proceeds received from any such sale or conveyance
shall be the sole property of Declarant, without claim thereto by the owner of
any Lot, Living Unit or by the Association.
C. Association's Purchase Option. Subject to the limitations and
in accordance with the terms contained herein, the Association is hereby
granted the option to purchase the Cypress Landing Golf Club. Purchase of the
Cypress Landing Golf Club shall only be made by the Association, however, upon
satisfaction of all of the terms and preconditions contained herein. To the
extent that the Association does not strictly comply with the terms and
preconditions contained herein or does not elect to acquire title to the
Cypress Landing Golf Club, neither the Association, nor any of its members,
shall have any claim relating in any way to the ownership, use or operation of
the Cypress Landing Golf Club.
Declarant shall offer to sell the Cypress Landing Golf Club and
the Cypress Landing Golf Club Equipment (to the extent owned by Declarant) for
a purchase price of ONE MILLION FIVE HUNDRED THOUSAND ($1,500,000.00), a
minimum of twelve (12) months and a maximum of fifteen (15) months prior to the
date established by Declarant for closing of such sale if the Association
elects to purchase. Such notice shall be given no sooner than four (4) years
following the opening of the Cypress Landing Golf Club for general play, and no
later than nine (9) years following the opening of the Cypress Landing Golf
Club for general play. Said notification shall specify the date proposed for
closing (the "Closing Date"), and which notice shall further specify
the assets to be conveyed. Said notification shall be given in writing, and
shall be sent by US registered or certified mail, return receipt requested,
addressed to all members of the Board of Directors of the Association not
selected by Declarant. The Association shall, following compliance with the
procedures and conditions contained herein, inform Declarant in writing whether
it does or does not elect to purchase. Failure to comply with the procedures
and conditions specified in these Protective Covenants shall be deemed a waiver
of the Association's right to purchase. All times specified within this
paragraph 19 shall be of the essence.
D. Approval Procedure. As used hereinafter/ the following
definitions shall apply;
(1)
"Association Member". A Member of the Cypress Landing Golf Club who
is also a member of the Association; and
(2)
"Electing Member". Every Member electing to remain a Member by
committing to contribute to the purchase .price of the Cypress Landing Golf
Club, as well as, where appropriate, every person becoming a member of the
Cypress Landing Golf Club following acquisition of the Cypress Landing Golf
Club by the Association;
( 3 )
"Member" . . Any person having membership privileges in the Cypress
Landing Golf Club as granted by Declarant at the time Declarant gives notice of
proposed sale to the Association;
(4)
"Outside Member". A Member of the Cypress Landing Golf Club who is
not a member of the Association;
(5)
"Voting Member" . A Member entitled to vote at the meeting of the
Association wherein the initial determination as to whether or not to purchase
the Cypress Landing Golf Club is determined;
(6)
"Voting Retained Member". A Voting Member entitled to vote to
reaffirm the decision to purchase the Cypress Landing Golf Club, if such a vote
is required.
The Association, within thirty (30) days of receipt of Declarant's
sale notice, shall provide a copy of the notice to every member of the
Association, and to every Member of the Cypress Landing Golf Club. Declarant
shall provide to the Association, with the notice of sale, a complete list of
the names and addresses for all Members. The mailing to each Member made by the
Association shall specify the procedures that must be followed as a
prerequisite to the acquisition of ownership of the Cypress Landing Golf Club
by the Association, and shall further specify the date for acquisition of such
assets and the acquisition price. This notice shall specify that there will be
a special meeting of the Association, which shall also include all Outside
Members, on a date specified in such-notice, which date shall not be less than
three (3) months nor more than four (4) months following the mailing of such
notice. This special meeting shall be called for the sole purpose of voting on
whether or not the Association should purchase the Cypress Landing Golf Club on
the terms specified hereinbefore. Only Members (including Outside Members)
shall be en-titled to vote, but all members of the Association shall be
entitled to attend and to participate in debate.
After discussion and debate, there shall be taken a written,
secret ballot, upon procedures determined by the Board of Directors of the
Association, as to whether or not the Association should purchase the Cypress
Landing Golf Club. Subject to the limitations contained hereinafter, if a
minimum of sixty percent (60%) of all Members (not jus-t Members voting) vote
affirmatively, the Association shall purchase the Cypress Landing Golf Club and
the Cypress Landing Golf Club Equipment. If less than sixty percent (60%) of
the Members vote to purchase the Cypress Landing Golf Club, the Association
shall not purchase the properties and assets.
If the vote is affirmative, the Association shall mail, within ten
(10) days following the special meeting, a notice to all Members staling that
the Association has elected to purchase the Cypress Landing Golf Club and the
Cypress Landing Golf Equipment. Said notice shall further state that any Member
not wishing to participate in such purchase must, within fifteen (15) days
following the date of the posting of such notice, give specific written notice
(on a form enclosed with the notice) of said Voting Member's election to resign
from the Cypress Landing Golf Club, effective as of the Closing Date. Failure
of any Voting Member to give such notice within the time specified shall be conclusively
deemed an election by the Voting Member to become an Electing ' Member.
Within ten (10) days following the expiration of the time allowed
to each Voting Member to resign his membership, the Association shall tabulate
the total number of resignations. If the to-tai number of resignation is less
than ten percent (10%) of the total number of Voting Members, the Association
shall proceed to purchase the Cypress Landing Golf Club and the Cypress Landing
Golf Equipment, on the terms specified herein, and the Association shall,
within ten (10) days after such tabulation, give such notice of election to
purchase to Declarant. If, however, ten percent (10%) or more of the Voting
Members elect to resign, the Association shall give a further written notice to
all Voting Retained Members, which notice shall specify the total number of
Voting Retained Members, and which notice shall, by written ballot included
with such notice, request that each Voting Retained Member vote whether or not
to elect to have the Association proceed to purchase the Cypress Landing Golf
Club. All Voting Retained Members shall be bound by the decision of the Voting
Retained Members, so that, even if a Voting Retained Member votes not to
proceed with the purchase, such Voting Retained Member shall be bound to become
an Electing Member if the vote of all Voting Retained Members results in a
decision to purchase the Cypress Landing Golf Club. An affirmative vote of
eighty percent (80%) of the Voting Retained Members (not just those Voting Retained
Members casting a vote) shall be acquired to reaffirm the obligation of the
Association to purchase the Cypress Landing Golf Club. If such an affirmative
vote is made, notice of election to purchase shall be given by the Association
to Declarant within ten (10) days following the expiration of the period of
time in which the votes from the Voting Retained Members are to be returned to
the Association.
Should less than ten percent (10%) of the Voting Members resign
within the time specified hereinbefore, all Voting Members not having elected
to resign within the time specified shall automatically become Electing
Members, and shall be obligated to contribute to the purchase of the Cypress
Landing Golf Club and the Cypress Landing Golf Equipment as more fully
specified herein.
An Electing Member may not resign his status as an Electing Member
thereafter except in accordance with one of the following:
(a)
Assignment of his membership to a successor in interest to his Lot or Living
Unit; or
(b) If an
Outside Member, transfer of his membership to a third party; or
, (c) The
expiration of a period of five (5) 'years from date of transfer of the assets
of the Cypress Landing Golf Club to the Association; or
(d) Death
(which shall act as a resignation unless a surviving spouse affirmatively
elects to continue membership); or
(e) At any
time following a decision by the Association not to purchase the Cypress
Landing Golf Club.
Following an affirmative vote of the Association to purchase the
Cypress Landing Golf Club and Cypress Landing Golf Club Equipment, Declarant
may continue to sell memberships in the Cypress Landing Golf Club through the
Closing Date, and Declarant shall be entitled 'to retain all initiation fees
paid to Declarant 'by any new member. However, Declarant shall require any such
new member,. in writing, to agree to contribute to the Association monies
necessary (on the same basis as all other Members) for the purpose of acquiring
title to the Cypress Landing Golf Club, and upon execution of such agreement,
such new member shall for all purposes be considered an Electing Member.
Declarant shall promptly give notice to the Association of the identity and
address of such new member.
E. Membership Rights. The Association after purchase is
specifically authorized to charge such dues and assessments to Members as are
necessary, after taking into consideration revenues received from ownership and
operation of the Cypress Landing Golf Club, to pay for the operation and
maintenance of the Cypress Landing Golf Club, and for the acquisition thereof.
These charges may include periodic dues, which may be adjusted from time to
time, membership dues, and may further include special assessments. All such
dues and assessments shall be mandatory, and shall be collected as though an
annual charge or a special assessment as set out in paragraph 6 of these
Protective Covenants, as to Electing Association Members. Members having
resigned, subject to availability of memberships, shall be given the
opportunity by the Association to rejoin the Cypress Landing Golf Club for a
limited time after the Closing Date as determined by the Cypress Landing Golf
Club Committee, but dues payable by such members may be greater than dues
payable by Electing Members, and privileges may be different, including the
loss of voting rights.
Notwithstanding the acquisition of the Cypress Landing Golf Club
by the Association, and subject to the provisions contained within this
paragraph, every Outside Member shall be entitled to remain a Member of the
Cypress Landing Golf Club. In order to remain a Member of the Cypress Landing
Golf Club, each Outside Member shall be given the opportunity to execute a
binding contractual agreement with the Association prior to acquisition of
title to the Cypress Landing Golf Club by the Association. Such agreement,
which must be executed ten (10) or more, days prior to closing of acquisition
of the Cypress Landing Golf Club, shall require the Outside Member so electing
to pay said Member's prorated designated share of the purchase price of the
Cypress Landing Golf Club, which amount (estimated if necessary) shall remain
in escrow until date of Closing, at which time said sum shall be applied to the
purchase price or, if the Association does not procure title to the assets,
shall be refunded to such Member. Said Outside Member must also agree by
contract to pay an amount equal to the dues and assessments charged
specifically to the Electing Association Members for a minimum period of five
(5) years following acquisition of the Cypress Landing Golf Club by the
Association. To the extent that such Outside Member commits in writing to these
requisites, the membership status of said Outside Member shall be protected so
that the Association shall not in any way differentiate in access to the
Cypress Landing Golf Club or by charges or assessments between Association
Members and Outside Members. However, to the extent that such an Outside Member
fails within the time specified by the Association to make the commitments
required herein, the Association shall be entitled to terminate such
membership, and no refund or repayment of monies previously paid shall be made
by either Declarant or the Association to such Member.
F. Closing. To the extent that the Association is committed by such
election to purchase the Cypress Landing Golf Club, closing shall occur on the
date initially specified in the notice given by Declarant to the Association,
or upon such other mutually acceptable date.
The purchase price may be paid in three (3) equal, annual
installments. Each Electing Member shall by written instrument given to the
Association at least sixty (60) days prior to Closing elect to pay his share of
the purchase price in cash (to be deposited in escrow with the Association at
least ten (10) days prior to closing) or in three (3) equal annual
installments. If installment payments are selected by an Electing Member, the
first payment shall be due and payable at closing; the succeeding two (2)
payments shall be due on the next two (2) anniversary dates thereafter.
Interest at the rate of prevailing prime (as specified by the Wall Street
Journal or other comparable national financial publication, if the Wall Street
Journal is no longer publishing a prevailing rate) shall be paid to Declarant
and charged to the installment paying Members. The prime lending rate shall be
established as of a date thirty (30) days prior to closing, and shall not vary
thereafter with changes in the rate of prime. Declarant shall retain a purchase
money security interest and deed of trust in all of the assets conveyed until
such time as the indebtedness is satisfied in full. The parties shall each pay
their respective costs associated with conveyance of title as is commercially
customary in a real estate transaction, except that Declarant shall pay for the
cost of preparation of the purchase money promissory note, deed of trust and
other security instruments required to perfect its security interest in the
assets conveyed.
The purchase price, should the Association elect to purchase,
shall be divided evenly among all Electing Members. The Association shall
assess each of such Electing Members electing I installment payments one-third
(1/3) of said allocated cost, to be payable a minimum of ten (10) days prior to
the date of closing, and shall further assess all of such Electing Members an
additional one-third (1/3) of such purchase amount, such assessment to be due
and payable a minimum of ten (10) days prior to the due date of each successive
purchase payment. Such assessments shall include the required interest. all payments required to be made to Declarant shall be made by the Association; the
Declarant shall have no obligation to collect any monies or sums from any
individual Member. The collection of the purchase price shall be the sole
obligation of the Association, and the Association shall be obligated to make
such payment notwithstanding default by any Electing Member in any payment
obligation to the Association.
G. Operations. Upon acquisition by the Association, all expenses
associated with the operation, maintenance and upkeep of the Cypress Landing
Golf Club shall be borne in equal shares by all Electing Members and all
revenues associated with the operation of the Cypress Landing Golf Club shall
enure to the benefit of said Electing Members and to offset the costs incurred
in the ownership, maintenance and upkeep of the Cypress Landing Golf Club and
Cypress Landing Golf Club Equipment. However, and notwithstanding the above, to
the extent that sufficient revenues are generated from Electing Member dues.
Electing Member assessments and other revenues generated in the operation of
the Cypress Landing Golf Club that exceed in amount expenditures necessary for
the operation, upkeep and maintenance of the Cypress Landing Golf Club, and to
the extent said revenues further exceed the need for reasonable reserves, all such excess receipts shall be refunded to Electing Members in equal shares
until all previous assessments against Electing Members only have been repaid.
It is the intent I of this provision that all of the benefits and liabilities
directly associated with the ownership and operation of the Cypress Landing
Golf Club enure to its Electing Members, and not to the 'Association as a
whole, notwithstanding the fact that the Association and its members will
accrue benefits by virtue of preservation of property values due to the
maintenance and upkeep in good fashion of the Cypress Landing Golf Club, until
such time as all payments (including acquisition price but excluding dues) made
by Electing Members have been repaid, and the dues for Members in the Cypress
Landing Golf Club are zero.
All membership dues and other charges and assessments, as well as
all budgetary and management decisions relating to the Cypress Landing Golf
Club, shall be determined by a Cypress Landing Golf Club Committee on behalf of
the Association, which Committee shall consist of five (5) members. So long as
there area minimum of ten (10) Outside Members, said Outside Members shall
select one (1) member of the committee. The Association Members shall, by vote
of the Association Members, select three (3) members of the Committee [or four
(4) members if there are not ten (10) Outside I Members], and the Association
Board of Directors shall appoint one 1 (1) member of said Committee, which
member may be an Association Member or any other member of the Association.
Such Committee shall provide in a timely fashion to the Association the amount
of all dues and assessments to be charged to Electing Members, and the
Association shall use due diligence and all of its legal powers to collect such
dues and assessments so imposed. All funds related to the Cypress Landing Golf
Club shall be maintained in a designated and separate banking account or
accounts of the Association. It is the intent of this provision that all
decisions relating to the operation, maintenance and upkeep of the Cypress
Landing Golf Club, including the imposition of dues, fees and charges, and the
expenditure of funds, be determined by the Cypress Landing Golf Club Committee,
not by the Board of Directors of the Association, except that no decision to
limit play to Electing Members (including Outside Members) and their guests
shall be made without a majority affirmative vote of all Electing Members of
the Cypress Landing Golf Club.
Subject to the limitations specified within this paragraph, the
Association, if it elects to purchase the Cypress Landing Golf Club, may elect
to allow non-Member greens fee access play, or may elect not to do so.
Notwithstanding this decision, however, all Outside Members contributing funds
to the procurement of ownership shall be retained as Outside Members, as more
fully set out hereinbefore, as long as such Outside Members continue to pay
dues and assessments as required. The Association, upon recommendation of the
Committee, may elect to admit other new Outside Members as it in its sole
discretion so determines, upon terms and conditions it determines in its sole
discretion, except that Outside Members at time of acquisition of the Cypress
Landing Golf Club shall be entitled to transfer their membership on terms
satisfactory to said Outside Member. However, at no time, whether before
conveyance to the Association or during a period of ownership by the Association
of the Cypress Landing Golf Club , shall the total number of Members exceed
five hundred (500), and of that amount, no more than one hundred (100) members
shall be Outside Members. Any conveyance by Declarant, whether to the
Association or to a third party, shall be made subject to any then existing
"linkage" program whereby Electing Members may have reciprocal rights
to other golf courses developed by Declarant.
H. Third Party Sale. To the extent that the Association does not
elect to purchase the Cypress Landing Golf Club, Declarant shall be entitled to
convey the Cypress Landing Golf Club to any third party for a price equal to or
greater than the price offered to the Association, at any time thereafter. The
only obligation of Declarant shall be to require in any contract of sale, to a
third party that all Electing Members at time of such sale be allowed to
continue membership following such sale without payment of additional
initiation or membership fees. Furthermore, said contract of sale shall require
that dues and cart fees charged to Electing Members at time of such sale shall
not increase more than ten percent (10%) in any one (1) year for the first five
(5) years following such conveyance.
A. Construction and Lease. Declarant shall construct, at its own
expense, a Marina to include no more than three hundred two (302) boat slips
and necessary piling and decking to allow access to each slip and access from
each slip to The Landing. Declarant shall also construct at The Landing, at its
own expense, the Bay Club with appurtenant structures and with a swimming pool.
Declarant shall execute a lease with the Association, on terms mutually
satisfactory, whereby Declarant shall lease from the Association a certain
portion of the Bay Club, and certain of the designated parking (either
exclusively or nonexclusively) for use by those entitled to utilize the Marina.
Declarant shall, during its period of ownership of the Marina, pay rental to
the Association for the use of the Bay Club and parking, which rental shall be
in the amount of THREE HUNDRED DOLLARS ($300.00) per month. Declarant shall pay
the utility expenses for the portion of the Bay Club leased by it; the
Association shall pay all other expenses associated with the Leased Premises
except any cost associated with the interior upfitting and interior maintenance
of such leased space. Declarant shall retain ownership of the Marina until
conveyed to the Association in accordance with the provisions contained within
this paragraph 20.
B. Operation by Declarant. During the time it retains ownership of
the Marina, Declarant shall be entitled, without claim by the owner of any Lot
or Living Unit or the Association, to retain all rental fees, charges, user fees,
assessments, proceeds from food sales' proceeds from merchandise sales and any
and all other revenues relating to the utilization of that portion of the Bay
Club leased by Declarant and the utilization of boat slips, without any
accounting thereof required to be given to any person or entity, including the
owner of any Lot or Living Unit or the Association. Declarant shall also bear
all expense associated with the construction, operation and maintenance of the
Marina and all of the interior of the Bay Club leased by Declarant from the
Association. As long as Declarant controls the Marina, no part of any dues or
assessments paid to or collected by the Association shall be utilized for the
construction, operation or maintenance of the Marina.
It is the intent of Declarant to rent the utilization of Marina on
a short term basis to members of the Association, their guests and invitees,
and third parties unrelated to the Association or members thereof. It is also
the intent of Declarant to enter into long term [up to ninety-nine (99) years]
leases for utilization of boat slips within the Marina with any or all of such
parties. All proceeds received from any such rentals or leases shall be the
sole property of Declarant, without claim thereto by the owner of any Lot or
Living Unit or by the Association.
C. Conveyance to Association. Notwithstanding the above. Declarant
shall convey the Marina and its leasehold interest in a portion of the Bay Club
to the Association, without payment therefore, on a date designated by Declarant, which date shall not be prior to January 1, 1998, nor later than
December 31, 2005 (except that all upland portions of The Landing may be
conveyed any time after construction). The Association shall be obligated to
accept the conveyance when tendered. Such conveyance shall be subject to all
rental and lease agreements executed prior to the date of such conveyance by
Declarant, and the Association shall abide by and honor all such instruments.
Furthermore, the Association shall be entitled to no payment for any portion of
any rental or lease term unexpired, all such payments being retained by
Declarant as compensation for the conveyance required herein. Declarant shall
furthermore convey to the Association all rights, if any, retained by Declarant
to construct additional improvements within the Marina as allowed by the
Permit. To the extent such right is conveyed, the Association may or may not
elect to construct additional improvements; any such construction shall be at
the sole cost and expense of the Association. All boat slips rented or leased
(or otherwise utilized to produce revenues) by the Association after its
acquisition of the Marina shall generate funds which are the sole property of
the Association, all of such receipts being maintained in a separate,
designated marina account, which account shall be utilized, except as specified
hereinafter, for the sole purpose of the maintenance and upkeep of, first, the
Marina, then, to the extent of excess receipts, for the maintenance and upkeep
(including reserves) of any and all other Amenities owned by the Association.
Notwithstanding this provision, no such proceeds shall be utilized for the
upkeep, operation or; maintenance of the Cypress Landing Golf Club.
D. Memberships. There shall be designated a special category of
membership of Association members, all Association members who have elected at
time of Marina conveyance to the Association, for a period extending one (1)
year or more from said date, to lease utilization of a boat slip at the Marina.
At time of conveyance of the Marina to the Association, Declarant shall give to
the Association the name and address of each such member, as well as the name
and address of all other parties holding a rental or leasehold interest in one
(1) or more boat slips (accompanied by a copy of the written instrument setting
out the respective rights and obligations of such parties ). all members of the
-Association qualifying for membership in such category shall hereinafter be
deemed "Marina Association Members *.
The Association, through the Marina Committee (as hereinafter
described) shall establish a dues schedule whereby each Marina Association
Member shall pay dues to the Association on a periodic basis, based upon the
size of boat allowed to utilize a particular leased boat slip within the
Marina. Furthermore, special assessments shall be allowed to be charged by the
Association, upon request of the Marina Committee, from time to time, to allow
the proper maintenance and upkeep of the Marina. All such dues and assessments
shall be mandatory, and shall be collected as though an annual charge or a
special assessment as set in paragraph 6 of these Protective Covenants.
The Association, upon request of the Marina Committee, shall
further establish fees and costs which shall be charged to all others utilizing
the Marina, and shall further establish dues and charges for those wishing to
lease on a long or short term basis use of the Marina. Such fees and charges
shall specifically allow a property owner within Cypress Landing, subject to
availability, to procure on a long term lease basis the right to utilize a boat
slip within the Marina. To the extent that such an owner makes such payments or
charges necessary to procure such right, as used herein such user shall be
considered a Marina Association Member. Notwithstanding these provisions, the
Association may not differentiate in charges to or utilization privileges
between Marina Association Members and those holding long term leasehold
interest in a boat slip, which interest was created prior to the conveyance of
the Marina to the Association by Declarant. Furthermore, all such contracts or
leases in existence at time of conveyance may be freely assigned by the holder
thereof.
E. Operation By Association. Upon acquisition of the Marina, all
expenses associated with the operation, maintenance and upkeep of the Marina
shall be borne by all members of the Marina (both Marina Association Members
and members not property owners), in proportion to boat slip size utilized, and
all revenues associated with the operation of the Marina shall enure to the
benefit of Marina Association Members and be utilized to offset the costs
incurred in the ownership, maintenance and upkeep of the Marina, subject to the
provisions hereinbefore set out.
All membership dues and other charges and assessments, as well as
all budgetary and management decisions relating to the Marina reserved
primarily to Marina users, shall be determined by a Marina Committee on behalf
of the Association, which committee shall consist of five (5) members. As long
as there are a minimum of ten (10) non-resident Marina users entitled to
utilization of a boat slip in accordance with a long term lease [lease
extending at least an additional one (1) year from date of transfer to the
Association], said members shall select one (1) member of the committee. The
Marina Association Members shall, by vote of the Marina Association Members,
select three (3) members of the Committee (or four (4) members if there are not
ten (10) nonproperty owner leaseholders as above-stated], and the Association
Board of Directors shall appoint one (1) member of said committee, which member
may be a Marina Association Member or any other member of the Association. Such
committee shall provide in a timely fashion to the Association the amount of
all dues and assessments to be charged to members utilizing Marina, and the
Association shall use due diligence and all of its legal powers to collect such
dues and assessments so imposed. All funds related to the Marina shall be
maintained in a designated and separate banking account or accounts of the
Association, until disbursed in accordance with the provisions contained herein
and other operating procedures as may be adopted from time to time. It is the
intent of this provision that all decisions relating to the operation and
maintenance of the Marina and any facilities of the Bay Club leased by the
Marina owner, including adoption of budgets and establishment of fees and dues,
be determined by the Marina Committee, and enforced by the Association.
The Declaration of Covenants, Conditions and Restrictions for
Cypress Landing Development recorded in Deed Book 983, Page 471, Beaufort
County Registry, are incorporated within these Protective Covenants, and thus
are hereby terminated and withdrawn as to the property submitted to the
provisions of these Protective Covenants.
The By-Laws of the Association, a copy of which are attached
hereto, are hereby expressly made a part of the organizational documents of the
Association.
Nothing contained herein shall prohibit in any way the
construction of incidental structures relating to Golf Course facilities or
recreational uses of the Amenities or of any other areas conveyed to the
Association for the common benefit.
IN WITNESS WHEREOF, the undersigned have executed this instrument
under authority duly given as of the day and year first above written.
STATE OF NORTH CAROLINA
COUNTY OF Craven
I _________ a Notary Public, certify that ________ personally came
before me this day and acknowledged that he/she is Assistant Secretary of
WEYERHAEUSER REAL ESTATE COMPANY, a corporation, and that by authority duly
given and as the act of the corporation, the foregoing instrument was signed in
its name by John M. Doughty, its Assistant Vice President, sealed with its
corporate seal, and attested by himself/herself as its Assistant Secretary.
WITNESS my hand and official seal, this 17th day of
March \ 1994.