NORTH CAROLINA AGREEMENT MOORE COUNTY

Transcription

1 NORTH CAROLINA MOORE COUNTY AGREEMENT THIS AGREEMENT, made and entered into this day of, 2008, by and between Equestrian Lakes, LLC, party of the first part, hereinafter called "Equestrian Lakes", and McLendon Hills Property Owners Association, party of the second part, hereinafter called "POA", W I T N E S S E T H: THAT WHEREAS, Equestrian Lakes is the declarant and developer of a certain subdivision known as McLendon Hills Subdivision and located in Moore County, North Carolina, which subdivision has been established by recording several different plats and several different sets of restrictive covenants, all in the office of the Register of Deeds for Moore County, North Carolina, and which the parties intend will be supplemented in the future by Equestrian Lakes recording additional plats and additional restrictive covenants, and adding additional tracts, which comprise, and will comprise, a single gated community known as McLendon Hills Subdivision; and, WHEREAS, POA is that non-profit corporation created to be owned by the owners of lots in McLendon Hills Subdivision, present and future, including Equestrian Lakes to the extent that it owns and will own platted lots, and created for the purpose of receiving title to certain common areas and to manage and control such common areas as set forth in the restrictive covenants, in the Articles, and in the Bylaws of such POA, and to enforce the restrictive covenants, Bylaws, and regulations of POA; and, WHEREAS, Equestrian Lakes presently owns certain areas which it has offered to transfer to POA to become "common areas" within McLendon Hills Subdivision, and which areas it has been constructing and maintaining for as much as the past ten years, and Equestrian Lakes has certain cash which it has offered to transfer to POA, and Equestrian Lakes has offered to construct additional improvements on real property and to thereafter transfer such properties to POA to become common areas within McLendon Hills Subdivision, all pursuant to this agreement; and, Page 1

2 WHEREAS, although Equestrian Lakes is obligated to transfer certain of the properties to POA by virtue of the existing restrictive covenants, POA acknowledges that Equestrian Lakes is not required to transfer all of the properties nor to engage in the significant construction project which has now been envisioned for the clubhouse, therefore POA is entering into this agreement to grant certain considerations to Equestrian Lakes, and to certain intended-third party beneficiaries, encouraging Equestrian Lakes to make such transfers and to engage in such construction beyond its obligations; and, WHEREAS, the parties hereto each warrant and represent to the other that they, and each of them, fully understand all the terms, covenants, conditions, provisions, and obligations incumbent upon each of them by virtue of this agreement, and each believes the same to be fair, just, reasonable, and to each of their respective best interests. NOW, THEREFORE, said parties, for and in consideration of the acts and things herein respectively agreed to be done and performed, do mutually agree, each with the other, as follows: 1. Equestrian Lakes agrees to transfer to POA certain tracts or parcels of real property as itemized and described on the Exhibit A attached hereto and incorporated by reference, as well as the sums of cash ($10,000 of which was earlier transferred to POA) as itemized on Exhibit B attached hereto and incorporated by reference. All real property transferred shall be clear of all taxes and liens and a county certificate to that effect shall be provided. Equestrian Lakes shall retain $10,000 of the cash in escrow to cover professional fees and other expenses and costs required to effect the transfer including the cost of the certified balance sheet, as well as, in the event this transfer takes place after January 1, 2009, taxes for 2009 and maintenance and related expenses incurred after January 1, Equestrian Lakes agrees to proceed with construction, according to its own plans and specifications, and without the supervision or control or right of approval of or by POA, of a certain clubhouse and dock, and then to convey such to POA, together with the real property upon which the same will be situate, as referred to in Exhibit C attached hereto and incorporated by reference. 3. Equestrian Lakes shall provide POA a certified balance sheet of all transferred property, assets and liabilities and a full disclosure of all existing Page 2

3 leases, liens, agreements and encumbrances pertaining thereto, as required under North Carolina Law 47F POA agrees: A. That it will not seek to amend or restrict the rights of Equestrian Lakes or of the Equestrian Center as referenced in the restrictive covenants, to freely use, and license the use of, the various common areas of McLendon Hills Subdivision as is presently permitted by the restrictive covenants; B. That it will carry General Liability insurance in the amount of $1,000,000 per occurrence and $2,000,000 aggregate naming as additional insureds Equestrian Lakes, and/or their issue or family trusts or related business entities owned primarily by them or their issue and the past, present, and future principals, members, managers and officers of Equestrian Lakes, including without limitation Thomas T. Carr and Craig S. McNeill, concerning their actions upon, about, or concerning McLendon Hills Subdivision and the common areas of McLendon Hills Subdivision. The POA will also carry an Umbrella Liability policy in the amount of $1,000,000 per occurrence and $1,000,000 aggregate. The above may be added as "additional insureds" to the General Liability and the Umbrella policies associated with the McLendon Hills Property Owners Association. Certificates of insurance shall be provided on an annual basis to Equestrian Lakes, Thomas T. Carr, and Craig S. McNeill, with a 30 day notice of cancellation. C. That to the extent that Equestrian Lakes chooses to convey undeveloped land or future phases of McLendon Hills or unsold platted lots to its principals Thomas T. Carr and/or Craig S. McNeill and/or their issue or family trusts or related business entities owned primarily by them or their issue, that for so long as such properties are held by the afore described entities, POA will extend to those entities the same exemption from the payment of annual dues or special assessments as is otherwise earlier granted to Equestrian Lakes in the restrictive covenants; and, D. POA grants to Equestrian Lakes the right to use, without rental or other expense, as McLendon Hills Realty Office, a real estate sales office, a portion of the new clubhouse, as shown on in Exhibit D attached hereto and incorporated by reference, for a period of twelve years, with the right to renew at a rental rate then standard in the Seven Lakes area or at a rate Page 3

4 determined by the POA Board (whichever is less) for two additional periods of five years each. 5. The principals of Equestrian Lakes, Thomas T. Carr and Craig S. McNeill, and their issue, are intended third party beneficiaries of this agreement. 6. It is agreed and understood that either party shall have the right to compel the performance of this agreement or to sue for the breach thereof in the courts having appropriate jurisdiction. Each party hereby specifically waives any objection and consents to having each and every term of this agreement made an Order of any court having jurisdiction of the parties. The parties further agree and stipulate that the interpretation of this agreement and the rights of the parties hereto shall be governed by the laws of the State of North Carolina. The parties agree that each and every term of this agreement shall be binding upon their respective assigns. Upon a suit alleging breach of this agreement, the party prevailing shall be entitled to recover reasonable attorney fees and all other expenses incurred in such action. IN WITNESS WHEREOF, said parties have set their hands and seals to this Agreement, in duplicate originals, one of which is retained by each of the said parties, the day and year first above written. EQUESTRIAN LAKES, LLC a North Carolina Limited Liability Company By: (SEAL) Craig S. McNeill Member-Manager By: (SEAL) Thomas T. Carr Member-Manager McLendon Hills Property Owners Association, President Page 4

5 , Director, Director, Director, Director, Director STATE OF NORTH CAROLINA COUNTY OF RICHMOND I, a Notary Public of the County and State aforesaid, certify that Craig S. McNeill, Member-Manager and Thomas T. Carr, Member-Manager of Equestrian Lakes, LLC, a limited liability company, personally appeared before me this day and acknowledged the due execution of the foregoing instrument on behalf of the company. Witness, my hand and Notarial Seal this the day of, My Commission Expires: STATE OF NORTH CAROLINA COUNTY OF MOORE Notary Public I, a Notary Public of the County and State aforesaid, certify that,,,,, and, of McLendon Hills Property Owner's Association, a non-profit corporation, Page 5

6 personally appeared before me this day and acknowledged the due execution of the foregoing instrument on behalf of the company. Witness, my hand and Notarial Seal this the day of, Notary Public Page 6

7 Exhibit B To the Agreement between Equestrian Lakes and POA $229, as of statement date November 25, 2008, and which balance reflects a payment of $10, to POA on November 5, To this balance will be added interest received after November 25, 2008, and from this balance will be deducted $10,000 to be maintained in escrow to cover professional fees and other expenses and costs related to the transfer including the cost of the certified balance sheet, as well as, in the event this transfer takes place after January 1, 2009, taxes for 2009 and maintenance and related expenses incurred after January 1, Page 7

8 Exhibit D, comprised of two (2) sheets To the Agreement between Equestrian Lakes and POA The real estate sales office shall occupy that space marked with hatch marks and identified as OFFICE and REAL ESTATE OFFICE on the attached sheet labeled as FLOOR PLAN LOWER FLOOR, such area being basically the quadrant of the lower floor of the intended building which is adjacent to the covered porch. Page 8