BOOK 11 4 6 PAGE 279
STATE OF NORTH CAROLINA JOINT TENANCY AGREEMENT AND
COUNTY OF ONSLOW DECLARATION OF Covenants
CONDITIONS, RESTRIC1'IONS AND
EASEMENTS OF ROGERS BAY FAMILY CAMPWAY
'93 NOV 17 PM 3 54
THIS JOINT TENANCY AGREEMENT AND DECLARATION made this 4 day of November, 1993, by Islandcamp, Inc.. a North Carolina corporation. hereinafter referred to as "Declarant”.
WHEREAS, the Declarant is the owner of that certain real property located in North Topsail Beach, Onslow County. North Carolina, described in exhibit A attached hereto and hereinafter referred to as "Campground"; and
WHEREAS, the Campground has been developed into a campground with approximately five hundred (500) camp sites and certain related amenities and common areas and the Declarant desires to subject the Campground to the provisions of this Agreement and Declaration. all of which is and are for the benefit of the co-owners of the property; and
WHEREAS, Declarant intends to sell and convey undivided interests in the Campground with appurtenant and specific use rights as more Fully set out hereinafter; and
WHEREAS, for the efficient preservation of the values and amenities of the Campground, the Declarant has caused to be incorporated the Rogers Bay Property Owners Association, a non-profit corporation. and hereby delegates and assigns to it the powers of ' maintaining and administering the common properties and amenities and administering and enforcing the covenants, conditions, restrictions and easements, collecting and disbursing the assessments and charges herein created and promoting, the recreation, health, safety and welfare of the owners; and
WHEREAS, by execution by Declarant of this Joint Tenancy Agreement and Declaration of Covenants, Conditions, Restrictions and Easements, hereinafter "Declaration", and as a precondition to Declarant tendering to any party an undivided interest in the Campground, each purchaser by the purchase of an undivided interest has agreed to the terms and conditions set out herein;
NOW, THEREFORE. in consideration of the receipt of Ten Dollars ($10.00) and other valuable consideration, the Declarant declares that the real property described in Exhibit A is and shall be held, transferred, sold, conveyed and occupied subject to the agreements. covenants. restrictions, conditions. easements, charges and liens herein set forth and all owners of undivided interests in the Campground and their successors, assigns, legal representatives and vendees agree to he bound by the terms and provisions of this Joint Tenancy Agreement and Declaration of Covenants, Conditions, Restrictions and Easements,
ARTICLE I DEFINITIONS
l. Allocated Site shall mean and refer, to the camp site to which a Co-Owner is granted, an exclusive right to use in an Original Deed.
2. Assessment shall mean and refer to a share of the funds required for payment of the Common Expenses which from time to time is assessed against the Co-Owners.
3. Association shall mean the Rogers Bay Property Owners Association, a non-profit corporation, organized and existing under the laws of the State of North Carolina.
4. By-Laws shall mean the by-laws of the Association.
5. Camp Site or Site shall mean an area set aside and intended for use as a camp site or recreational vehicle site.
6. Common Areas and Common Property shall mean and refer to those areas which are available for the non-exclusive use of all Co- Owners. The Common Property includes, but is not limited to the following: all septic tanks, drain fields, pipes and other appurtenant facilities and all water pipes and electrical systems and wiring, the swimming pool, the bathhouses, the roads and roadways, access easements across other property and any other areas which are conveyed or leased as "Common Properties". The term "Common Property" shall also mean and include any personal property acquired by the Association and shall be inclusive of limited common areas or property. All Common Areas and Property of the Association are to be devoted to and are intended for the common use and enjoyment of the Co-Owners, their families, guests, invitees, lessees, and servants, subject to this Declaration and the operating rules adopted by the Association. Such areas are not dedicated for' use by the general public. Declarant so long as it is a Co-Owner shall and does retain certain rights to conduct commercial activities on the common areas. Areas of the Campground which are Camp Sites or might later be designated as Camp, Sites are specifically not Common Property.
7. Common Expenses shall mean the expenses for which the Co-Owners are liable to the Association, and shall include, but not be limited to the following:
(a) The actual or projected costs of operating and maintaining common areas and property, telephone, legal, accounting, or other professional fees, and insurance;
(b) the costs of providing water, electric, sewer (if any) and other utilities to the common property and to the camp sites so long as they are not individually metered; and
(c) All taxes and assessments levied by any governmental instrumentality on the Property.
8. Co-Owner or Owner shall mean a person or entity who owns an undivided interest in the Campground and shall expressly include the Declarant so long as the Declarant has an ownership interest in the Campground.
9. Co-Ownership Interest shall mean a fee simple undivided interest in the Campground.
10. Declarant shall mean Islandcamp, Inc., its successors and assigns.
11. Declaration shall mean this Joint Tenancy Agreement and Declaration of Covenants, Conditions. Restrictions and Easements as the same may be amended from time to time.
12. Limited Common Area shall mean any common area reserved for the exclusive use of one or more Co-Owners to the exclusion of other Co-Owners.
13. Managing Agent shall mean the management 'company or other entity engaged by the Declarant or the Association pursuant to and in the manner provided by this Declaration; provided, however that until such time as a Managing Agent is engaged, Declarant shall have all rights and obligations of the Managing Agent.
14. Member shall mean a member of the Association.
15. Occupant shall mean the occupant of a camp site who shall be either a Co-Owner, a lessee, a guest or an invitee.
16. Original Deed shall mean any deed from Declarant conveying a Co-Ownership Interest to a Co-Owner.
17. Phase I shall mean the area shown on that survey prepared by Charles F. Riggs & Associates, Inc. dated October 29, 1993 and appended hereto as exhibit 13.
18. Phase Association shall mean any unincorporated association of Co-Owners exclusively entitled to use the Sites in a specific area of the Campground as shown on a survey.
19. Phase I Association shall mean that Area Association whose membership includes all Co-Owners who have an exclusive right to use the Sites shown on Exhibit B.
20.. Recreational Vehicle shall mean those vehicles including tent type folding trailers, pickup campers, fifth wheel campers, modern travel trailers, motor homes, park models or other similar types of camping trailers and equipment which are mobile or semi mobile.
21. Rules and Regulations shall mean the rule and regulations relating to the possession, use and enjoyment of the Campground and the Common Property, and properly adopted by the Declarant or the Association as set out in this Declaration and the By-Laws.
22. Supplemental Survey shall mean any survey of campsites, not shown on Exhibit B,which is subsequently made a part of this Declaration.
PROPERTY SUB.JECT TO THIS DECLARATION
The real property which shall be held, transferred, sold, conveyed and occupied subject to this Declaration is located in North Topsail Beach, Onslow County, North Carolina and is described in Exhibit A attached hereto.
1. Use Rights.
Subject to all the terms and conditions contained elsewhere in this Declaration and in the By-Laws, each Co-Owner and each transferee of the Co-Ownership Interest of such Co,:, Owner shall have the exclusive right to use and occupy the Site described in the Original Deed to such Co-Owner or, in the case of the Declarant, each Site not allocated to any other Co-Owner pursuant to an Original Deed and any areas not yet surveyed but intended to be used as campsites, provided that the Co-Owner shall have no claim to ownership of such Site, except as the Owner of an undivided Co-Owner Interest. in the Campground. Each Co-Owner and the Declarant shall also have the nonexclusive right to use all Common Property, except such Common Property as may be designated as Limited Common Property. for use as a common easement or common area.
2. Restrictions on Use.
No Co-Owner shall occupy any Site or exercise any other rights of ownership with respect to the Campground other than the rights provided to such Co-Owner in this Declaration, in the By-Laws, in the Original Deed of such Co-Owner, and in the Rules and Regulations.
"BOOK 11 4 6 PAGE 282
No Co-Owner shall be entitled to occupy the Site allocated to such Co-Owner unless such Co-Owner has paid in full all fees and assessments legally owing in relation to the Campground. as more fully described hereinafter.
No animals, livestock or poultry of any kind shall he kept or maintained in the Campground except that dogs, cats or other household pets may be kept provided that they are at all times under the control of their owner.
No more than one recreational vehicle shall be permitted on any Space at the same time without the express written approval of the Managing Agent.
No Co-Owner shall engage in any commercial' activity whatsoever within the Campground, provided, however that this prohibition shall not be construed so as to prevent the Co-Owners from renting or leasing their allocated site. Notwithstanding the foregoing, the Declarant shall have the right to enter upon any and all of the Campground except previously allocated sites for the purpose of selling camp sites or for any other commercial activities that do not interfere with the Co-Owners rights of enjoyment.
The State of North Carolina limits impervious surface coverage. Therefore, no Co-Owner shall pave or otherwise install any pervious coverage on the Campground without the express written approval of Declarant.
No fences, barriers, barricades or other similar structures may be constructed or placed on the property by any Co- Owner, nor may any tree be removed, without the written consent of the Declarant or the Managing Agent. The Declarant or Managing Agent shall have the authority to determine in its sole discretion that any structure, decoration or other display is incompatible with the ambience of the Campground and may cause the removal of such structure, decoration or display, The Declarant or the Association with the express written approval of the Declarant may cause to be erected a fence or similar structure on the exterior boundary of the Campground Of' around various sections of the Campground.
3. Obligations of Co-Owners.
Each Co-Owner shall leave the Campground, such Co-Owner's Site, and the Co-Owner's recreational vehicle and the Common Property in good and sanitary condition and repair and otherwise comply with such procedures as may from time to time be contained in the Rules and Regulation.
Each Co-Owner shall be responsible for the maintenance, repair and sightliness of such Co-Owner's Site and recreational vehicle located thereon. .
Any Co-Owner may permit the Site allocated to such Co-Owner to be occupied by anyone said Co-Owner desires to allow within such Site, but the number of occupants at any given time shall not be in excess of the number of occupants permitted by the Rules and Regulations and the ordinances of North Topsail Beach, and each Co-Owner shall be responsible for any loss, damage, destruction or violation of this Declaration which occurs during such occupation as if the Co-Owner were occupying the Site.
Every Co-Owner and their guests, tenants or other permitted users shall comply with the use restrictions as set forth in this Declaration, and each of such persons shall comply with the Rules and Regulations. .
No Co-Owner shall landscape the property or remove, alter or replace any portion of the Common Property without the prior written consent of the Managing Agent. The foregoing prohibitions, however, shall not modify or affect the obligations of each Co-Owner for the prudent care and ordinary maintenance and upkeep of all property subject to such Co-Owner's use.
BOOK 11 4 6 PAGE 283
Each Co-Owner agrees to comply with the zoning and other ordinances of North Topsail Beach with respect to campgrounds and recreational vehicles. Each Co-Owner grants to the Association, the Managing Agent, the Dec1arant and their respective agents or contractors a right of ingress and egress onto the Site allocated to such Co-Owner for the purpose of maintaining and repairing all Common Property, including without limitation septic and electrical systems located on the Site utilized by such Co-Owner
3. Failure to Comply.
If' any Co-Owner or permitted user fails to comply with this Declaration or prevents another Co-Owner or permitted user from using or occupying the Site allocated to such Co-Owner or user, the noncomplying Co-Owner shall:
(a) be subject to immediate removal, eviction, or ejection from the property wrongfully occupied;
(b) be deemed to have waived any notice required by law with respect to any legal proceedings regarding removal, eviction, or ejection (to the extent that such notice may be waived under North Carolina law): and
(c) reimburse the Co-Owner otherwise entitled to use of the Site for all costs and expenses incurred by such Co- Owner as a result of such conduct, including but not limited to costs of alternate accommodations, travel costs, "Court costs, and reasonable attorney's fees incurred in connection with removing, evicting or ejecting the user refusing to vacate.
For the purposes of this section, the act of a guest or any member of the Co-Owner's family, or any permitted user of a Co-Owner, including a renter, shall be deemed to be the act of the Co-Owner.
4. Site Modification.
The boundaries of the Sites shown on the Survey may not be modified or altered except pursuant to this Section 4. The Declarant or Board of Directors may make minor modification in the boundaries of any Sites, but only for the following purposes:
(a) To correct a clear mistake or error in the Surrey; or
(b) To alleviate a significant hardship relating to the use of any Site, if such alteration can be done without causing material restrictions on the use of any adjoining Site and can be accomplished without significant diminution in the size of any adjacent Site. All costs associated with such change, including the cost of recordation of an amended survey to reflect such changes, shall be borne by the Co-Owner benefited by such change or alteration. If the owner of a Site affected by such alteration objects to such, alteration (and such owners shall be given prior notification by the Declarant or Board of Directors of the proposed change) such change may only be accomplished by unanimous vote of the Board of Directors of the Association.
Nothing herein contained shall prevent or inhibit the Declarant from surveying such areas of the Campground which have not previously been surveyed and amending this Declaration to include said supplementary survey. Once said amendment has been recorded and an exclusive right to use a site shown on said supplemental survey has been granted to a third party, then said supplementary survey may only be modified in accordance with this Section 4. .
"BOOK 11 4 6 PAGE 284
MEMBERSHIP AND VOTING RIGHTS
The Declarant has, prior to recordation or this Declaration, caused to be chartered a North Carolina nonprofit corporation named "Rogers nay Property Owners Association, Inc."
Every person or entity who is a record owner of an undivided interest in the property which is subject to this Declaration shall be an owner member of the Association. Membership shall be appurtenant to and may not be separated from ownership in the Campground. The former is not intended to include persons or entities who hold an interest merely as security for' the performance of an obligation.
Each Co-Owner shall be entitled to a vote in the Association which vote shall be in the same proportion to the total votes as the percentage interest in the Campground owned by the Co-Owner. Each Co-Owner owning more than one Co- Ownership Interest shall be entitled to one such vote for each Co-Ownership Interest owned by such Co-Owner, which provision shall also apply to the Declarant. To the extent that any Co-Ownership Interest is owned by more than one Co- Owner, said Co-Owners shall determine among themselves, and shall designate, one voting member, which voting member shall cast the vote allocated to said Co-Ownership Interest. In the event that the Co-Owners shall not be able to select a representative, the Managing Agent. on behalf of the Association, shall designate the representative to cast any vote on behalf of such Co-Ownership Interest.
4. Board of Governors.
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, provided, however, that all of the powers and duties of the board of Directors may be exercised by the Declarant until ninety (90%) percent of the interest in the Campground has been conveyed by Original Deed to Co-Owners. The Declarant shall have the right to appoint the first Board 6f Directors who shall serve until such time as their replacements are elected at an annual meeting of the Co-Owners.
5. Association Responsibility.
The Association shall have the responsibility of maintaining in good condition the Common Property, including all septic systems, drain fields and pipes, so long as connection to a sewer system is not available to the Site, all streets and security facilities, and all exterior wiring and electrical lines relating to the Campground or the Sites located thereon, and the sightly appearance, landscaping and lawn care of such Common Property. The Association shall be responsible for the payment of all ad valorem real property taxes relating to the Campground; provided that the responsibility for the payment of personal property taxes on any personal property owned by any Co-Owner, including such Co-Owner's recreational vehicle, shall be on such Co-Owner, The Association shall have the right, but not the obligation, to provide security to and for the benefit of all or a portion of the Campground, and to provide any other incidental services it deems appropriate to benefit the Campground. The Association shall have no responsibility for the restoration of' the Campground or of any Site thereon in the event that the Campground or a portion thereof or any Site shall be unusable for the placement of a recreational vehicle for any reason whatsoever, including, an act of God or a determination by any governmental or regulatory body, agency or representative that such property or Site is unusable. In order to fund its obligations, each Co-
Owner is obligated and bound to pay to the Association the assessments and fees provided in this Declaration. The Association may from time to time increase or decrease the amount of the assessments provided herein in accordance with this Declaration and the By- Laws.
6. Association Meetings.
An annual meeting of' the Association shall be held on the first Saturday in the month of October each year in Onslow County, North Carolina or on such other date as may be established pursuant to the By-Laws. Special meetings of the Association may be held in accordance with the by-Laws.
7. Designation of Managing Agent,
The Association acting through its Board of Directors shall be entitled to designate the Managing, Agent for each year subsequent to 1996, and the Managing Agent may be a Co-Owner.
FEES AND ASSESSMENTS
1. Creation Of Personal Obligation.
Each Co-Owner by acceptance of a deed For a Co-Ownership Interest, whether or not it shall be so expressed in said deed, shall be deemed to have covenanted and agreed to pay the Association or the Managing Agent, as agent for the Association, the annual maintenance fee, all special assessments and all personal charges, as are more fully described hereinafter (all of which are sometimes herein called "assessments”), which assessments shall be established, made and collected in accordance with this Declaration and the By-Laws . The assessments, together with interest, costs and reasonable attorney's fees, shall be the personal obligation of each Co- Owner at the time the assessment becomes due and payable and shall be a lien and charge upon the Co-Ownership Interest against which the assessment or charge is made. The personal obligation for delinquent assessments shall not pass to successors in title unless expressly assumed by them, provided, however, this shall not extinguish the lien on the Co-Ownership Interest until said assessments are paid. No Co-Owner may waive or otherwise avoid liability for the assessment by nonuse of such Co-Owner's Co-Ownership Interest or Site or any abandonment thereof
2. Purpose Of Assessments.
Assessments shall be used exclusively to promote the recreation, health, safety and welfare of the Co-Owners, and to improve, maintain, refurbish, insure and otherwise keep in good condition the Campground and the Common Property. .and to pay any expenses incurred by the Managing Agent or the Association in the performance of the Managing Agent's or the Association's duties, and in the payment of all liens and assessments, including taxes and common utilities, against the Campground and the Common Property.
3. Annual Fee.
An annual maintenance fee shall be assessed by the Association against the Co-Ownership Interests. The maintenance fee shall be used to operate manage, maintain and repair the campground and the Common Property, to provide common utility services, cleaning services, maintenance, replacement and repair of the Common Property; to administer all functions required of the Managing Agent and the Association; to pay premiums on all insurance policies relating to the campground and the Common Property, required under this Declaration; to pay all real estate taxes owed, which are a lien and charge against the Campground; to provide reserves as necessary; and for any other purposes as are required.
herein or otherwise required by good business practice to maintain the Campground in good condition for the benefit of the Co- Owners.
The share of' the maintenance fee assessed against each Co-Ownership Interest shall be in the same percentage as the undivided interest in the Campground owned by the Co-Owner. Each Co-Owner Owning more than one Co-Ownership Interest shall be assessed for each Co-Ownership Interest owned by such Co-Owner. The Maintenance fee for the first full year of operation following the recordation of this Declaration shall be $192.00 for each one-five hundredth (.002%) interest owned.
Notwithstanding the above, the Declarant so long as it owns a majority of the undivided interest in the Campground, in lieu of paying assessments as described above, shall pay the Association the difference between the amount of assessments collected from all other Co-Ownership Interests subject to assessments and the amount of actual expenditures required to operate the Association during the fiscal year.
The maintenance fee for each year subsequent to 1994 shall be established by the Board of Directors of the Association. In no
event shall any annual increase in the maintenance fee be greater than seven (7%) per cent except by the affirmative vote of the seventy-five (75%) per cent of the members exclusive of Declarant; provided, however, that should real property taxes on the Campground increase more than seven (7%) per cent, then the maintenance fee may be increased by seven (7%) per cent plus and additional amount equal to the increase in real property taxes without a vote of the membership.
5. Payment Of Maintenance Fee.
The maintenance fee shall be payable in four equal annual installments, in advance on the first day of each January, April., July, and October and shall he payable to the Managing Agent, as agent of the Association. Any payment not received by the Managing Agent within 15 days from the date when due shall be subject to a late fee of $20.00 or ten (10%) per cent of the amount past due whichever is greater. In addition, no occupancy of any Site or the recreational vehicle thereon may be permitted to an Co- Owner unless and until all maintenance fees, and other assessments are paid in full by such Co-Owner. If an Co-Owner has not paid fully all assessments, the Managing Agent shall, at the direction of the Board of Directors of. the Association, prohibit use of such Co- Owner's Allocated Site by the Co-Owner and may remove said Co-Owner’s recreational vehicle to storage until such fees are paid in full. The Co-Owner shall be responsible for all costs of moving said recreational vehicle from the Site and returning same thereto. The owner of the storage area may also charge the Co-Owner storage costs.
The frequency and dates of payment may be changed in accordance with the provisions of the By-Laws.
6. Special Assessments.
If the maintenance fees are, or will become, inadequate to meet all expenses incurred by the Association hereunder for any reason, the Board of Directors of the Association shall immediately determine the approximate amount of' such inadequacy and levy against each Co-Owner a special assessment in an amount sufficient to provide for such inadequacy. Notwithstanding the above, prior to January 1, 1997 or until fifty (50%) percent of the interest in the Campground has been conveyed by the Original Deeds, Declarant shall be responsible for any shortfalls in the annual budget and no special assessments shall be levied against the members.
7. Personal Charges.
The term “personal charges” means:
(a) any expense resulting from the act of omission to act of any Co-Owner or other person occupying the Site allocated to such Co-Owner including without limitation, special services or supplies attributable to the occupancy of the Site thereon;
(b) the cost to satisfy any expense to any of the other Co-Owners, to the association or to the Managing Agent attributable to any act or omission to act of such Co-owner, such Co-Owner's family, guests or invites or resulting from the breach by such Co-Owner of any of such persons of any provision of this Declaration, By-Laws or the Rules and Regulations; and
(c) all utility charges, including electricity, telephone and cable television, which are billed directly to a Co- Owner and are not on a common meter..
Failure to pay personal charges in a timely fashion shall be deemed a failure to pay assessment as more fully set out hereinbefore, and such failure to pay shall subject the defaulting Co-Owner to all of the remedial provisions hereof.
8. Inability to Use Site.
In the event that one or more Sites shall become unusable for the placement of a recreational vehicle thereon, due to an Act of God or regulatory determination, the Co-Owner to whom the use of such Site has been allocated shall have no obligation to pay any fee or assessment of the Association hereunder for the period from the date such Site shall become unusable to the date, if ever, such Site is determined again to be usable. Notwithstanding the Foregoing, such Co-Owner shall retain such Owner's Co-Ownership Interest and shall be entitled to (i) vote as a member of the Association and (ii) share pro rata in the proceeds of any ultimate sale of the entire Campground, upon such terms and conditions as the Co-Owners shall then agree. In the event that any Co-Owner whose Site shall have become unusable desires to utilize the Common Property or amenities relating to the Campground, the Co- Owner shall notify the Managing Agent of such intention, and the Managing Agent shall promptly notify the Board of Directors, who shall establish a fee to be paid by such Co-Owner for such use in lieu of the other assessments required to be paid hereunder, which fee determination shall. be absolutely binding on such Co-Owner.
In addition to being members of the Rogers Bay Property Owners' Association, the Co-Owners who have an exclusive right to use those sites shown as a separate phase on the survey attached hereto as Exhibit B and on any supplemental surveys shall also be members of non-incorporated Phase Associations. The Declarant so long as it retains the right to use any Site within the Phase shall be a member of-the applicable Phase Association.
Said Phase Associations shall have the right, buty not the obligation, to pass and enforce rules and regulations governing the area shown on the survey, provided that said rules and regulations do not conflict with the Rules and Regulations of the Association.
Each co-Owner having the exclusive right to use one of more Sites constituting a separate Phase shall nave one vote per site, for which he has the exclusive right of use, in that Phase’s Association. Phase Associations shall have the right to assess their members only upon an affirmative vote of seventy-five (75%) percent of the votes entitled to be cast in that Phase Association, exclusive of Declarant. In the event that a Phased Association should vote to
assess its member's, said assessments will be collected by the Managing Agent who shall segregate said monies collected from the Association account. Said monies shall be used only as directed by the Phase members. The Managing Agent shall have the right to enforce the rules, regulations and assessments of the Phase Associations in accordance with Article VII below, Phase Associations shall have no right or authority to pass any rules or regulations limiting Declarant's right to sell a Co-Ownership Interest or to grant an exclusive right to use any Site for which such exclusive right to use has not been granted,
All Co-Owners of having an exclusive right to use the sites shown on Exhibit B shall be members of the Phase I Association. Each member shall have one vote per site for which he has exclusive use in Phase 1. The Declarant shall also be a member so long as it retains the right to use any site in Phase I and shall have one (1) vote for each site retained, The Phase I Association shall have a right to assess its members only upon a positive vote of seventy-five (75%) per cent of the votes entitled to be cast in the Phase I Association, exclusive of Declarant,
Any rules and regulation1s and assessments by any Phase Association shall be supplemental to and not in lieu of rules, regulations and assessments of the Rogers Bay Property Owners Association. .
ARTICLE VII ENFORCEMENT OF RESTRICTIONS.
The Association shnl1 have full power and authority to enforce compliance with this Declaration, the By- Laws and the Rules and Regulations in any manner provided for by law or in equity including, without limitation, the right to enforce by bringing an action for damages, an. action to enjoin the violation or specifically enforce the provisions of this Declaration, the By-Laws or the Rules and Regulations, to enforce the liens provided for herein and any statutory lien provided by law, including the foreclosure of any such lien by power of sale pursuant to Section 47C-3-116 and Article 2A of Chapter 45, of the North Carolina General Statutes and appointment of a receiver for an Co-Owner and the right to take possession of the Co-Ownership Interest of any Co-Owner in the manner provided by law. In the event the Association shall employ an attorney to enforce the provisions of this Declaration, the By- Laws or Rules and Regulations against any Co-Owner, the noncomplying Co-Owner shall be liable for attorney's fees and costs in addition to any other amounts provided for herein. All enforcement powers of the Association shall be cumulative. In the event that there is a dispute as to the nature or amount of any charges or assessments sought to be collected, the affected Co-Owners may pay such charges under protest and sue for a refund in Onslow County District or Superior Court, whereupon the Co-Owner shall be entitled to the use, possession and occupancy of such Co-Owner's Allocated Site.
2. Priority Of Assessment Lien.
The assessments provided by this Declaration together with interest, costs and reasonable attorney's fees, shall be a charge on and a continuing lien upon the Co-Ownership Interest against which the assessments are made when a notice of such lien has been filed of record in the of6ce of the Clerk of Superior Court of Onslow County. North Carolina, in the same manner as provided by the North Carolina General Statutes, including Section 47C-3-116 and Chapter 44A, provided such notice of lien shall not be recorded until such sums assessed remain unpaid for a period of 60 days after the same shall become due, Said notice of lien shall also secure all assessments against the Co-Ownership Interest becoming due thereafter until the lien has been satisfied, In addition. each Co-Owner shall be personally liable for any assessments against such Co-Owner's Co-Ownership Interest becoming due and payable while
such Co-Owner is the Owner of the Co-Ownership Interest. Such assessment lien shall be prior to and superior to all other liens except:
(a) ad valorem taxes; and
(b) all sums unpaid on deeds of trust, mortgages or other encumbrances against the Co-Ownership Interest advanced prior to the recordation of such lien, and secured by an appropriate instrument recorded as allowed by law prior to the -recordation of such lien.
1. Transfer By Declarant.
Declarant shall be entitled to transfer undivided interests in the Campground equal to any percentage it deems appropriate to any party or parties. Nothing shall prohibit a Co-Owner from owning more than one Co-Ownership Interest.
2. Prohibitive Transfer.
No Co-Owner shall transfer such Co-Owner's Co-Ownership Interest unless such transfer is in compliance with the provisions of this Declaration. Any transfer not in compliance with this Declaration shall be null and void and of no effect.
For purposes of this Declaration, the term "transfer" means any sale, conveyance, gift, or lease for a period greater than one year, encumbrance or other voluntary disposition by an Co-Owner of such Co-Owner's Co-Ownership Interest. The term "transfer" does not include a conveyance or transfer by descent, distribution or other operation of law. Upon a transfer of a Co-Ownership Interest, the right to utilize the Site allocated to the transferring Co-Owner, as such Site may have been modi6ed pursuant to Section 4 of Article II, shall pass to the transferee, and the transferee shall have no right to use any other Site.
3. Division; Combination.
No Co-Owner, other than Declarant, shall transfer of record less than all of co-tenancy interested which was conveyed to the Co-Owner by Original Deed, nor shall any Co-Owner in any way further divide said interest, provided that any Co-Owner, including the Declarant, who owns more than one Co-Ownership Interest shall be permitted to sell each Co-Ownership Interest separately from time to time. Nothing contained herein shall be deemed to prohibit ownership of an interest by the entireties, jointly or in any form permitted by law.
The sale or transfer of any Co-Ownership Interest shall operate to transfer to the new Co-Owner the interest of the prior Co-Owner in all funds in the hands of the Managing Agent without further instrument of transfer. Each subsequent Co-Owner or transferee of a Co-Ownership Interest shall be subject to the provisions of this Declaration, the By-Laws and all other restrictions, including the Rules and Regulations and the Site allocation, which were binding on the transferring Co-Owner. All deeds conveying Co-Ownership Interests shall contain a statement that the conveyance is made subject to this Declaration, provided, however, that the failure to include such statement shall not affect the provisions of this Declaration, the By-Laws or the Rules and Regulations, which are binding on all Co-Owners including the new Co-Owner.
5. Notification Of Sale.
Not later than five days after the transfer of any Co-Ownership Interest, the transferor shall notify the Managing Agent in writing of such sale or transfer. Such notice shall set forth the name and address of the transferee and transferor; the residence and business phone number of the transferee and transferor; and the date, terms, and amount of sale. Unless and until such notice is given, neither the Managing Agent nor the Association shall be required to recognize the transferee for any purpose, nor any action taken by the transferor for any purpose, but any action taken by the transferor as a Co-Owner may be recognized by the Managing Agent. Prior to the receipt of any such notification by the Managing Agent, any and all communication required or permitted to be given by the Managing Agent or the Association shall be deemed duly given and made to the transferee if duly and timely made and given to the transferor.
Any Co-Owner may pledge such Owner's Co-Ownership Interest as security for any loan. Such Co-Owner agrees to make or cause all payments to be made when due under all instruments relating to such loan, and such Co-Owner shall not permit such Owner's, Co-Ownership Interest to be deeded in lieu of foreclosure. Except as expressly permitted by this Section, no Co-Owner shall permit such Owner's Co-Ownership Interest to be subject to any lien (other than the liens of current real property taxes) claim or charge, the enforcement of which may result in a sale or threatened sale of the Co-Ownership Interest of any other Co-Owner. Should any such action be threatened, the Association and the Declarant shall each be entitled, but shall not be required, to satisfy any such claim, and to assess said claim, plus any cost incurred in settling the same. including, but not limited to, court costs and attorney's fees, as an assessment against the Co-Owner occasioning such expense. Nothing contained herein shall in any way restrict any remedy legally available to a holder of a security interest in any Co-Ownership Interest, provided that the provisions of this Declaration, including without limitation Section 4 and Section 6 of this Article, shall apply to any secured party and all persons or entities taking through a secured party.
WAIVER OF TENANCY IN COMMON AND PARTITION RIGHTS
Any rights as tenants in common are governed by the provisions of this Declaration, and all other rights granted by law to tenants in common are waived, to the extent that the same are in conflict with any provision of this Declaration, and to the extent that the same may be legally waived. Each Co-Owner expressly waives any statutory or common law right to partition the property including without limitation the right to force a sale of the entire Campground or any portion thereof, or to force a partition of the proceeds of any sale of all or a portion of the Campground, or to share in the income received from the rental or lease of any portion of the Campground except for the proceeds from a Co-Owner's allocated site.
This waiver shall remain in full force and effect so long as the Campground remains reasonably useable for a travel trailer park.
Islandcamp, Inc. or its appointee shall act as Managing Agent, commencing upon the conveyance of the first Original Deed, and terminating December 31, 1996, or when the Association employs a different Managing Agent whichever date last occurs.
2. Duties Of Managing Agent.
The Managing Agent shall perform all duties necessary for the proper functioning and operation of the Campground as a recreational vehicle park, including, without limitation, those specified in this Declaration. These responsibilities shall include, but shall not be limited to, the- following:
(a) collection of all assessments, and the Managing Agent shall account for all such collections to the Treasurer of the Association;
(b) payment of all obligations incurred by the Managing Agent and the Association with respect to the Campground and the Common Property, including without limitation all taxes, and payment of all other obligations owing and chargeable to the Co-Owners jointly, as more fully set out hereinafter;
(c) procurement of required cleaning and repair service for the Campground and Common Property;
(d) procurement of all required insurance, provided that the responsibility of insuring recreational vehicles shall be on the individual owners thereof as hereinafter provided;
(e) supervision of all maintenance necessary for the Campground and the Common Property in a timely fashion;
(f) acting as agent for all Co-Owners in all matters affecting the use, zoning and control of the Campground;
(g) assisting the Association in promulgating rules and regulations for consideration by the Co-Owners; and
(h) performance of all other acts required of the Managing Agent under the terms of this Declaration,
3. Maintenance Schedule.
The Managing Agent shall schedule all necessary maintenance and repair work so as to minimize inconvenience to any Co-Owner. The Managing Agent shall give, where possible, reasonable notice to every affected Co-Owner of any intended repairs or maintenance; the Managing Agent shall, where possible, allocate all maintenance and repairs so as to burden no one Co-Owner more than every other Co-Owner. Notwithstanding the provisions of this paragraph, emergency repair's shall be made its required, and the Managing Agent, and the agents employed by the Managing Agent, to make repairs, shall have access to the Campground, the Common Properly and each Site at all times necessary to make such repairs.
AMENDMENT AND TERMINATION
Until December 31, 2013, Declarant may unilaterally amend this Declaration to include supplemental surveys or for any other reason that does not in any way diminish the rights granted to Co-Owners; nor increase the obligations of Co-Owners; nor interfere or in any way affect the rights of holders of security interests in the Co-Ownership interests in the Campground. .
Except as specifically reserved herein, this Declaration may be amended by Co-Owners holding seventy-five (75%) per cent of Co-Ownership Interests in the Campground, including Declarant; provided, however, that any amendment requiring a change in the method of determining and collecting assessments shall require approval by the seventy-five (75%) of the Co-Ownership Interests, exclusive of Declarant, and the Declarant.
In addition, no Amendment shall be effective without consent of Declarant until such time as at least ninety (90%) of the co-ownership interests have been transferred to third parties.
Furthermore, no amendment shall be approved that would adversely impact the rights. of any holder of a security interest in a Co-Ownership Interest in any material way without the prior, written consent of all such holders.
This Declaration shall remain in effect until the earlier of the happening of the following:
(a) unanimous decision of all holders of Co-Ownership Interests, including the Declarant and also including any holders of a security interest in any Co-Ownership Interest, to terminate this Declaration; or
(b) at any time more than 50 years from the date of recordation of this Declaration at which time a majority of Co- Ownership Interests affirmatively vote to terminate this Declaration; or .
(c) the sale of the Campground as a whole to one or more third parties, which sale must be approved by the holders of ninety percent (90%) of the Co-Ownership Interests in the Campground.
The Association shall maintain a general public liability policy for the Common Property and the Campground (or the benefit of the Association, its officers and directors, the Managing Agent and each Co-Owner, in an amount determined by the Board of Directors, if such a policy is available at reasonable cost. Each Co-Owner shall be solely responsible for insuring such Co-Owner's personal property located on the Campground including without limitation, such Co-Owner's recreational vehicle.
Neither the Declarant, the Association nor the Managing Agent shall have any liability to any Co-Owner in regard to .any disputes whatsoever which may arise among or between Owners of Co-Ownership Interests or between any third party and any Co-Owner or Co-Owners. None of the Declarant, the Association or the Managing Agent shall be responsible for the acts, omissions to act or conduct of any Co-Owner or user or for the breach of any obligation by any Co-Owner or user. None of the Declarant, the Association or the Managing Agent makes any representation, warranty or covenant with regard to the use of the Campground or any Site or any Common Property by any Co-Owner,
Each Co-Owner of a Co-Ownership Interest accepts such Co-Ownership Interest and Site allocation as is, without representation or warranty by the Declarant, the Association or the Managing Agent, and each such Co-Owner, for such Co-Owner and such Co-Owner's family, guests, tenants, invitees, heirs and legal representatives, releases the Declarant, the Association, their respective officer's, directors, shareholders and agents, and the Managing Agent, from and against all claims whatsoever with respect to the Co-Ownership Interest, the Campground, the Site allocated to such Co-Owner and the Common Property, Each Co-Owner agrees to comply with the ordinances of North Topsail Beach County with regard to the operation and use of campgrounds and travel trailer parks, Each Co-Owner accepts all risks associated with the ownership of a Co-Ownership Interest;- including the effects of Acts of God and governmental regulation and each Co-Owner further understands that the Site allocated to such Co-Owner may at some future point become unusable due to Acts of God, governmental regulation or other events not within the control of the Co-Owner, the Declarant, the Managing Agent or the Association.
By their acceptance of a Co-Ownership Interest, each Co-Owner agrees to indemnify and hold harmless each other Co-Owner, the Association and its officers and directors and the Managing Agent from and against all claims, costs, liabilities and obligations of any kind whatsoever made against any of such persons or entities by such Co-Owner or any family member, guest, invitee, tenant, heir or legal representatives of such Co-Owner in connection with the Campground, the .Common Property, any Site or in any way relating to the activities thereon.
Non-exclusive easements are hereby granted to all Co-Owners, their families, guests, invitees, lessees and licensees, to the Association, and the same are reserved to Declarant, its successors and assigns for egress and ingress for pedestrian traffic over, through and across sidewalks, paths, walks, streets and lanes as the same may from time to time exist upon the common areas, and over through and across the beach access described in Exhibit C attached hereto, and for vehicular traffic through and across such common areas as may be intended for vehicular traffic. Non-exclusive easements are also granted to all Co-Owners, their families, guests, invitees, lessees and licensees, to the Association, and the same are reserved to Declarant, its successors and assigns for egress and ingress for pedestrian and vehicular traffic over, through and upon the area described in Exhibit D.
The Managing Agent, its employees and assigns, and any employees of the provider of services shall have a non- exclusive easement across and through the entire Campground for the purposes of maintaining and installing any utility or other services that the Managing Agent deems necessary or appropriate, Any damages caused to the Campground as
of the Managing Agent exercising his authority hereunder, shall be repaired by the Managing Agent and such repair shall be a charge against the Association.
Any or all of the special rights and obligations of the Declarant set forth in this Declaration or the by-Laws may be transferred to other persons or entities, provided that the transfer" shall not reduce an obligation nor enlarge a right beyond that contained in this Declaration or in the By-Laws as may be applicable. Furthermore no such transfer shall be effective unless it is signed by the Declarant and duly recorded in the Public Registry for Onslow County, North Carolina.
The Declarant hereby reserves an easement across all roadways and common areas as necessary to provide for further development by Declarant, its successors and assigns and for the purpose of selling co-ownership interests.
Declarant specifically reserves the right but not the obligation to improve and expand the amenities at the Campground, to install or have installed cable or satellite television sewer lines of other utilities, The Co-Owners shall not be assessed for the costs of such improvements or additions, but shall be responsible for tap-on and use fees for sewer usage should the Co-Owner desire to use said system and for usage costs assessed for the reception by the Co- Owner of any enhance television reception.
Declarant further reserves the right, but not the obligation, after the conveyance of eighty-five (85%) percent or more of the undivided interest in the Campground to Co-Owners by Original Deeds, to deed its remaining interest to the existing Co-Owners and each Co-Owner agrees to accept the additional per cent undivided interest. The share of the additional undivided interest to be conveyed to each Co-Owner shall be in the same proportion to the total interest being conveyed by Declarant as the percentage interest owned by the Co-Owner in the Campground.
First Union Nationall Bank of North Carolina ("First Union"), by deed of trust recorded in Book 1142, Pages 948 through 951 (the "Deed of Trust"), has secured the repayment by declarant of a Promissory Note dated November 1. 1993. First Union joins in the execution of this Joint Tenancy Agreement and Declaration for the sole purpose of subordinating its Deed of Trust to the provisions or this Joint Tenancy agreement and Declaration, and for no other purpose. Nothing contained herein shall release or otherwise affect the priority held by the Deed of Trust as a first lien encumbering the property described herein. However, by subordinating its interest to this Agreement, First Union agrees and acknowledges that the property described in its Deed of Trust may be conveyed in undivided interests as more fully described in this Agreement. and First Union further acknowledges and agrees that, upon conveyance of an undivided interest, said interest shall be held managed and maintained fully in accordance with the provisions of this Agreement. Nothing contained herein shall obligate First Union, unless it elects so to do in accordance with security instruments granted to it by Declarant, to succeed to Declaran’s interest as Declarant as described within this Agreement.
1. Severability Captions.
If any provision of this Declaration. or any section sentence, clause or the application thereof in any circumstance. shall be held invalid the validity of the remainder of this Declaration and of the application of such provision shall not be affected thereby. If any provision of this Declaration would violate the rule against perpetuities or any other limitation on the duration of the provisions contained herein imposed by law, then such provision shall be deemed to remain in effect only for such period as the maximum allowed by the rule against perpetuities.
All captions are for reference and shall not be construed to restrict the applicability of the provisions contained therein.
2. Successors In Interest.
The provisions of this document shall run with the land and be binding upon all parties having or acquiring any Co-Ownership Interest or any right, title or interest therein and shall be for the benefit of each Co-Owner and such Co- Owner's heirs, successors and assigns.
The captions of the articles and sections herein are for convenience only and shall not be considered to expand, modify or aid in the interpretation, construction or meaning of this Declaration. As used herein, the singular shall include the plural and the masculine shall include the feminine and neuter.
The failure to enforce any provision of this Declaration shall not constitute a waiver thereof or the waiver of the right to enforce such provision thereafter.
5. Applicable Law.
This Declaration is made in accordance with the provisions of the laws of the State of North Carolina, and any action to enforce any provision of this Declaration shall be brought in Onslow County, North Carolina.
IN TESTIMONY WHEREOF. the Declarant has executed this Joint Tenancy Agreement and Declaration of Covenants, Conditions, Easements and Restrictions this day of November, 1993 .