HomeMy WebLinkAboutSDP202000042 Other 2021-04-22Prepared by and return to:
Justin A. Ritter, VSB# 82573
Ritter Law PLLC
600 E. Water Street, Suite F
Charlottesville, VA 22902
(434)218-1172
Albemarle County Tax Map Parcels: 04500-00-00-084A0, 04500-00-00-08500, 04500-00-00-112F1 & 04500-00-
00-112172
DECLARATION
OF COVENANTS, CONDITIONS AND RESTRICTIONS FOR
BERKMAR OVERLOOK
THIS DECLARATION is made this _ day of 2021, by BERKMAR
DEVELOPMENT LLC, a Virginia limited liability company ("Declarant").
WITNESSETH:
WHEREAS, Declarant is the owner of certain real property located in the County of
Albemarle, Virginia, which is described on the Plat attached as Exhibit "A" and in Section 2.01,
and desires to create thereon (and on such additional real property as may hereafter be subjected to
the provisions of this Declaration) a planned community known as Berkmar Overlook (hereinafter
"Berkmar Overlook").
WHEREAS, Declarant desires to provide for the protection and enhancement of the value
and desirability of Berkmar Overlook and for the maintenance of Berkmar Overlook, and to this
end, Declarant desires to subject the real property described in Section 2.01 hereof, together with
such additional real property as may hereafter be subjected to this Declaration, to the covenants,
restrictions, easements, conditions, reservations, liens and charges hereinafter set forth, each and all
of which is and are for the benefit of said real property and the owners thereof.
NOW THEREFORE, Declarant hereby desires that the real property described in Exhibit
A and in Section 2.01 hereof, and such additions thereto as may hereafter be made pursuant to
Section 2.02 hereof, shall be held, transferred, sold, conveyed, leased, donated, devised, inherited
and occupied subject to the covenants, restrictions, easements, conditions, reservations, liens and
charges hereinafter set forth, and any valid amendments or supplements hereto. These covenants,
restrictions, easements, conditions, reservations, liens and charges and all other provisions hereinafter
set forth shall run with the land and shall be binding upon any and all parties who have, or shall
acquire, any right, title, or interest in all or any part of the real property subject to this Declaration,
and shall inure to the benefit of each Owner hereof.
ARTICLE I — DEFINITIONS
The following words, when used in this Declaration, shall have the following meanings:
Section 1.01. "Architectural Review Board" or "ARB" shall mean and refer to the
Committee established in Article DX hereof for the purpose of regulating the external design,
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appearance and use of the Lots, Common Area, and improvements thereon.
Section 1.02. "Assessment" shall mean and refer to the combination of the following
assessments: (i) Community Assessment, (ii) Community Reserve Fund Assessment, and (iii)
Reserve Fund Assessment for Lots, with (i) through (iii) being either regular or special assessments
asset forth in Article VIII herein. "Community Assessment" shall mean and refer to those certain
assessments imposed by the Association upon all Lots for regular and daily community purposes,
as specifically set forth in Section 8.03 below. "Community Reserve Fund Assessment" shall
mean and refer to those certain assessments imposed by the Association upon all Lots for periodic
work such as the long term capital improvements for the Common Area, parking areas (if any),
and other repairs or replacements of the Common Area, including, but not limited to, the entrance
sign, as specifically set forth in Section 8.04 below. "Reserve Fund Assessment for Lots" shall
mean and refer to those certain assessments imposed by the Association upon all Lots (defined in
Section 1.12 below) for periodic work such as the long term capital improvements and other repairs
or replacements as provided for in this Declaration, as specifically set forth in Section 8.05 below.
The "Community Reserve Fund Assessment" and the "Reserve Fund Assessment for Lots" may
be collectively referred to as the "Reserve Fund Assessments)".
Section 1.03. "Association" shall mean and refer to Berkmar Overlook Property Owners
Association, Inc., a non -stock corporation to be incorporated under the laws of the Commonwealth
of Virginia, its successors and assigns. An alternate Association name may be selected to
accommodate name availability with the State Corporation Commission.
Section 1.04. Berkmar Overlook" shall mean and refer to that portion of the Property
described in Section 2.01 hereof, which is hereby subjected to this Declaration, together with such
other real property as may hereafter from time to time be added thereto under the terms of Section
2.02 hereof.
Section 1.05. `Board" or `Board of Directors" shall mean and refer to the Board of
Directors of the Association.
Section 1.06. "Common Area" shall mean and refer to any lot, area, pieces or parcels of
land, together with all appurtenances thereto belonging, shown on the Plat (as defined in Section
2.01 hereof), less and except the Lots and any property dedicated to and accepted by a public
authority, to be held, owned and administered for the common use, benefit and/or enjoyment of
the Owners and residents of Berkmar Overlook. Prior to the expiration of the Declarant Control
Period (defined in Section 1.09 below), the Declarant shall convey the Common Area to the
Association in fee simple, free and clear of all liens, but subject to this Declaration and all other
easements, conditions and restrictions of record. The Association shall accept title to any portion
of the Property offered to the Association by the Declarant or as directed by the Declarant. The
Common Areas include (i) Open Spaces A through G, (ii) those certain portions of the Landscaping
Easements (defined in Section 13.01) and Retaining Wall Easements (defined in Section 14.01)
contained within any of the said Open Spaces, (iii) the Private Roads, and (iv) the Existing
Cemeteries (defined in Article XV) with (i)-(iv) all as shown on the Plat, and other space that the
Declarant may designate in a supplemental declaration. The Common Area may be adjusted by
and through Boundary Line Adjustment Plats recorded hereafter.
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Section 1.07. "Community Assessments" shall mean and refer to the charges, fees and
liens imposed upon Lots for community purposes as provided in this Declaration, and as may be
amended from time to time.
Section 1.08. "Declarant" shall mean and refer to Berkmar Development LLC, a
Virginia limited liability company, and any successor to or assignee of it as Declarant and/or
developer.
Section 1.09. "Declarant Control Period" shall mean and refer to the period commencing
on the date of the recordation of this Declaration in the Clerk's Office (defined in Section 2.01
below) and terminating on the earlier of (a) the date on which the Declarant no longer owns any
part of the Property; or (b) any earlier date contained in a written notice from the Declarant to the
Association specifying the termination date of the Declarant Control Period.
Section 1.10. "Declaration" shall mean and refer to the covenants, restrictions,
easements, conditions, reservations, liens and charges and all other provisions herein as set forth in
this entire document, as the same may from time to time be amended or supplemented.
Section 1.11. "Dwelling Unit" shall mean and refer to any portion of the Property, as
improved, intended for any type of independent ownership for use and occupancy as a residence
by one household.
Section 1.12. "Lot" shall mean and refer to any plat of land numerically designated and
shown or described on any recorded plat of any portion of Berkmar Overlook, by phase or
otherwise, with the exception of Common Area.
Section 1.13. "Maintain" or "Maintenance" shall mean care, inspection, maintenance,
operation, repair, repainting, remodeling, restoration, improvement, renovation, alteration,
replacement and reconstruction.
Section 1.14. "Member" shall mean and refer to any Lot owner entitled to membership in
the Association.
Section 1.15. "Mortgage" shall mean each deed of trust or mortgage or similar instrument
recorded against the title of any portion of the Property and encumbering same as security for the
performance of any obligation (including, without limitation, the payment of any liability). "First
Mortgage" shall mean and refer to that Mortgage which is in first priority position against the title
of any portion of the Property.
Section 1.16. "Mortgagee" shall mean the institutional holder, insurer or guarantor of a
Mortgage.
Section 1.17. "Owner" shall mean and refer to the record owner, whether one or more
persons or entities, including Declarant, of the fee simple title to any Lot, including contract sellers,
but excluding those having such interest merely as security for the performance of an obligation. In
the case where a Lot is held by one or more persons for life with the remainder to another or others,
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the term "Owner" shall mean and refer only to such life tenant or tenants until such time as the
remainderman or remaindermen come into use, possession or enjoyment of such Lot.
Section 1.18. "Property" shall mean and refer to that certain real property, described in
Section 2.01, and as shown in the Plat attached as Exhibit "A" hereto, and such additions thereto
as may hereafter be brought within the jurisdiction of the Association.
Section 1.19. "Roads" shall mean and refer to the roads and streets within Berkmar
Overlook designated as public right of way and/or private right of way or alley, as shown and
described on the Plat in Exhibit A (as defined in Section 2.01 hereof), as well as any future roads
that are platted to serve future development phases in Berkmar Overlook. The Roads include all
improvements within the designated right of ways, including, but not limited to, curbs, sidewalks
and grass strips, if applicable. The Private Roads are part of the Common Area that will be
conveyed to the Association as set forth herein and are subject to maintenance by the Association
as set forth in Article VI. "Private Roads" shall mean and refer to those certain roads, alleys, or
streets shown on the Plat that have not been dedicated to and accepted by a public authority for
public use. "Public Roads" shall mean and refer to those certain roads or streets shown on the Plat
that have been dedicated to and accepted by a public authority for public use.
Section 1.20. "Supplemental Declaration" shall mean and refer to any declaration of
covenants, conditions and restrictions which may be executed and recorded by Declarant which
extends the provisions of this Declaration to additional real property and to any declaration of
covenants, conditions and restrictions which may be executed and recorded pursuant to Section
16.03 hereof which imposes additional, modified, supplementary or complementary provisions,
covenants, conditions and/or restrictions upon the real property then subject to this Declaration.
ARTICLE II — PROPERTY SUBJECT TO THIS DECLARATION
Section 2.01. Berkmar Overlook. The portion of the Property which at this time is, and
shall be held, transferred, sold, conveyed, donated, leased, devised, inherited and occupied subject
to this Declaration, is:
Those certain lots or parcels of land numbered I through 52, specifically labeled as
"Lot F through "Lot 52" respectively, Open Spaces A through G, "Empire Street
48' Public R/W", "Swede Street 54' Public R/W ', "Marsac Street 48' Public R/W",
as shown and described on that certain subdivision plat entitled "Subdivision Plat,
Berkmar Overlook, Tax Map 45, Parcels 84A, 85, 112F 1 & 112172, Rio Magisterial
District, Albemarle County, Virginia,("Plat"), prepared by Roudabush, Gale &
Associates, Inc., dated April 16, 2020, last revised [TO INSERT], as recorded
herewith as "Exhibit A" in the Clerk's Office of the Circuit Court of Albemarle
County, Virginia ("Clerk's Office"), to which reference is hereby made for a more
particular description of the Property.
Section 2.02. Additional Property. Declarant shall have the right, but not the obligation,
without further consent of the Association or of other Owners, to bring within the plan and
operation of this Declaration and the jurisdiction of the Association all or any portion of the
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Property or such other real property owned by Declarant or other parties that the Declarant desires
to add and make subject to this Declaration. Such additions may be made as one tract or as several
smaller tracts at different times. To make any addition authorized by this section, Declarant shall
file a Supplemental Declaration with respect to the real property being added to Berkmar Overlook
which shall amend the operation and effect of this Declaration, and the jurisdiction of the
Association, to such added real property. A Supplemental Declaration filed by Declarant may
contain such complementary conditions and modifications of the covenants, conditions and
restrictions contained in this Declaration as may be necessary or desirable to reflect the different
character, if any, of the added real property. To add property owned by other parties, such other
parties shall execute such supplemental declaration(s) solely for the purpose of evidencing
agreement and consent to the imposition of this Declaration on such parcel(s).
Section 2.03. Addition of Adjoining and Improved Subdivisions into the Association. The
Association may accept other adjoining and already improved lots, parcels and/or subdivisions
into the Association. Approval of such action must be completed at a duly noticed meeting of the
Association, by the affirmative vote of at least more than fifty percent (50%) of the votes of the
Members present to vote, in person or by proxy, where a quorum is established for such meeting.
Upon approval of the addition of an adjoining and improved lot, parcel or subdivision into the
Association, the Board is authorized to amend the Declaration and record such amendment to
reflect the additional property that is held subject to this Declaration.
ARTICLE III - ASSOCIATION
Section 3.01. Association. Berkman Overlook Property Owners Association, Inc. is a
non -stock corporation, incorporated under the laws of the Commonwealth of Virginia for the
purpose of. (i) applying, administering, and enforcing the covenants, restrictions, conditions, liens
and charges contained in this Declaration; (ii) owning, Maintaining and administering the
Common Area; and (iii) providing the maintenance within Berkman Overlook as set forth in this
Declaration. The name of the Association may be changed to reflect name availability with the
Virginia State Corporation Commission.
Section 3.02. Title to Common Area. The Declarant shall convey the Common Area to the
Association in fee simple, free and clear of all liens, but subject to this Declaration and all other
easements, conditions and restrictions of record, prior to the expiration of the Declarant Control
Period. The Association shall accept title to any portion of the Property offered to the Association
offered to the Association by the Declarant or as directed by the Declarant.
ARTICLE IV — INSURANCE
Section 4.01. Insurance. Each Owner covenants and agrees to maintain fire, general liability
and extended coverage insurance on the improvements and structures on their Lot to the full insurable
value thereof. The Association shall only carry insurance related to the Common Areas of this
Association, and administration of the Association.
Section 4.02. Restoring Property. In the event any improvements or structures located on a
Lot are damaged or destroyed by any casualty, the Owner of such Lot shall promptly restore the
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improvements at the Owner's sole cost and expense to the original condition existing prior to the
casualty event or to a condition better than the original condition.
ARTICLE V— EASEMENTS
Section 5.01. Generally. In addition to all utility easements and sight distance easements
reserved on the Plat, the Declarant reserves unto itself, its successors and assigns, perpetual and
alienable easements and right of ways on every portion of the Common Area (i) to construct,
Maintain, inspect, replace and repair all utilities, including, but not limited to, water, sewer, electric,
telephone and cable, with the corresponding poles, wires, cables, conduits, pipes, valves, and other
suitable equipment for the conveyance of water, sewer, telephone, electricity, cable, communications
and other utilities and public conveniences; (ii) for storm and surface -water drainage, together with
the right of ingress and egress to all such facilities and easements for the construction and
maintenance thereof, (iii) to create, provide and Maintain any sight distance easements and/or
slopes required by the County of Albemarle and/or the Virginia Department of Transportation for
use and/or acceptance for public maintenance of the Roads (such sight distance easements are
intended to be granted to the County in such locations shown on the Plat labeled as "New Variable
Width Distance Easement''); (iv) to construct, Maintain, inspect, replace and repair all retaining walls;
and (v) to meet any other condition or requirement of any governmental authority related to the
subdivision and or development of Berkmar Overlook and/or the use and/or acceptance of the
Roads for public maintenance. These easements reserved by the Declarant can be dedicated by
the Declarant to the respective utility.
Section 5.02. Temporary Construction Easements. The Declarant reserves unto itself, its
successors and assigns, temporary, alienable easements within and across those portions of the
Lots lying within thirty five feet (35') of the centerline of the Roads, as well as within all setbacks,
buffers, and other easements for the construction and grading of the Roads, the cutting, filling and
grading of slopes, installation of drainage facilities, and the installation of all utilities. The
Declarant may transfer all or some of the rights reserved in this easement to third parties. This
temporary construction easement shall terminate upon: A) the completion of the Roads, the
facilities appurtenant to the Road construction, the utilities, and all other infrastructure for Berkmar
Overlook; and B) acceptance and approval of such Roads, utilities or infrastructure by the
applicable utility, VDOT or other governmental agency; and C) the release of all the corresponding
bonds for such improvements.
Section 5.03. Easement of Enjoyment of Common Area. Each Owner, and such Owner's
immediate family, guests, and tenants, shall have a right and easement of use and enjoyment of
the Common Area, including the sidewalks and any facilities situated thereon, subject to the
following:
(a) No obstruction or storage within the Common Area is permitted without the
prior express written consent of the Association;
(b) The right of the Association to limit the number of guests of the Owners to
use facilities located within the Common Area and to establish and charge reasonable admission
or other fees for use of any recreational facilities situated upon any portion of the Common Area;
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(c) The right of the Association to suspend the voting rights and right to use of
the Common Area by any Owner for a period during which any Assessment against his Lot remains
unpaid, and for a period for any infraction of the Association's published rules and regulations,
provided that access to the Owner's Lot over Common Area is not disturbed or interfered with;
(d) The right of the Association to dedicate or transfer all or any part of the
Common Area, subject to the Declarant's easements in this Article V, to any public agency,
authority or utility for such purposes and subject to such conditions as may be agreed to by the
Owners. If ingress or egress to any Lot is through the Common Area, any transfer of that portion
of the Common Area shall be made subject to the Owner's easement; and
(e) The right of the Association to place reasonable restrictions and rules upon
the use of the Common Area and easements described in this Article V.
Section 5.04. Drainage and Maintenance Easements. The Declarant reserves unto
itself, its successors and assigns, perpetual and alienable drainage easements and right of ways
above ground and underground as shown on the Plat and upon every portion of the Common Area
to construct, Maintain, inspect, replace and repair pipes and swales for storm and surface water
drainage. Further, the Declarant shall establish such easements for drainage and water flow as may
be required by the contours of the Property and the arrangements of buildings on the Property.
Declarant reserves unto itself, its successors and assigns, the exclusive right to sell, grant, convey
and/or dedicate any utility system and adjoining area located within the Property to the County of
Albemarle or one or more public utility companies. Such rights shall continue in effect until such
time as the Declarant, including any successor or assign, has conveyed or relinquished all of its right,
title and interest in and to any portion of the Property.
Section 5.05. Easement for Maintenance, Repair and Replacement. For the purpose of
performing the Maintenance on the Lots or Common Area required or permitted by this
Declaration, the Declarant and/or the Association, through its duly authorized agents and/or
employees, shall have a non-exclusive easement to enter upon, or in, any Lot or any portion of the
Common Area, for the purpose of performing Maintenance in accordance with all Articles of this
Declaration.
Section 5.06. Scope of Easements. The easements provided for in this Section shall
include the right to cut any trees, brush and shrubbery, make any grading of soil, and take other
similar action reasonably necessary to provide economical and safe utility installation and drainage
facilities, as well as repairs or maintenance to retaining walls installed as part of the original
development site work. No new trees, shrubs, fences, buildings, overhangs or other improvements
or obstructions shall be placed within the easements provided for in this Section by individual Lot
Owners. The rights in this Section may be exercised by any licensee of the Declarant, but shall not
be deemed to impose any obligation upon the Declarant to provide or Maintain any utility or drainage
services. Any damage resulting from the use of the easements hereby reserved shall be promptly
rectified at the expense of the entity or persons responsible for such damage.
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Section 5.07. Encroachment. Declarant reserves unto itself, its successors and assigns, a
perpetual and alienable easement to the extent that any structure on any Lot encroaches on any other
Lot or the Common Area, whether by reason of: (a) initial design and construction; (b) deviation from
the plats and plans (or any errors thereon) in the construction, repair, renovation, restoration and
replacement of any structure; or (c) settling or shifting of any land or improvements.
Section 5.08. New 10' Private Lateral Easement. Declarant reserves unto itself, its
successors and assigns, a perpetual private lateral easement for the benefit of Lot 1 as described
and specifically shown on the Plat, in such area defined and designated as "NEW 10' PRIVATE
LATERAL EASEMENT* -CALLS TO CENTER-" ("Lateral Easement"), with such easement
granted for the specific purpose of connecting water/sewer utilities under and upon Lot 2 to
connect to those certain public utilities to be Maintained by the Albemarle County Service
Authority, in such area defined as "New 20' ACSA Utility Easement* -Calls to Center-" on the
Plat. The Lateral Easement shall burden Lot 2 as described and specifically shown on the Plat in
perpetuity, subject to the Board's discretion to vacate the Lateral Easement should such easement
no longer benefit Lot 1.
Section 5.09. New Variable Width Access Easement. Declarant hereby grants a perpetual
and non-exclusive access easement to Foundation's, L.L.C., a Virginia limited liability company
(the "L.L.C."), in such area defined as "New Variable Width Access Easement" on the Plat
("Neighboring Access Easement"). Said Neighboring Access Easement shall be combined with
and connected to that certain easement granted to the L.L.C. by Deed dated August 28, 2004, from
Stuard R. Wood, Jr., and Margaret E. Wood, to the LLC, recorded in the Circuit Court of
Albemarle County, Virginia, Clerk's Office, Deed Book 2834, pages 1-6, except that this
Neighboring Access Easement shall not provide any parking rights, only access. The Neighboring
Access Easement shall run with the land currently owned by the L.L.C., currently designated as
Tax Map Parcel 04500-00-00-112170.
Section 5.10. New 22' Access Easement. Declarant hereby grants a perpetual and non-
exclusive access easement to Albemarle County in such area shown and described on the Plat as
"New 22' Access Easement" ("Emergency Access Easement"). The Declarant shall construct any
and all improvements within the Emergency Access Easement in accordance with the
specifications and directions imposed by Albemarle County. At all times, the Association shall
Maintain the Emergency Access Easement according to the standards set by Albemarle County.
For the avoidance of doubt, the Emergency Access Easement shall not be considered a Private
Road for purposes of this Declaration.
ARTICLE VI — MAINTENANCE OF BERKMAR OVERLOOK
Section 6.01. Sidewalks. The initial construction of the road frontage and sidewalks
shall be home and completed by Declarant. As of the date the Declarant installs the Common
Area improvements, the cleaning, repair, maintenance, upkeep, improvement, snow removal,
enhancement and replacement of the sidewalks within the Common Area shall be home by the
Association. All walkways running from road frontage sidewalks to the door of all Lots will be
Maintained, replaced, improved or repaired, and the snow or ice removed, by individual Lot Owners.
The Association may, but is not obligated to, include sidewalk snow and ice removal as part of the
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services provided by the Association.
Section 6.02. Maintenance of Drainage and Storm Water Run -Off Control Measures.
The County of Albemarle, Virginia ("County") has required certain drainage and storm water run-
off control measures to be constructed, Maintained, inspected, replaced and repaired as part of its
approval of the development of Berkmar Overlook. This subdivision will be subject to a separate
Storm Water Management Agreement with the County. The initial construction of the
drainage and storm water run-off control measures shall be home and completed by Declarant. As
of the completion date, the repair, maintenance, upkeep, improvement, enhancement and
replacement of the drainage and storm water run-off control measures shall be home by and are
the responsibility of the Association. These facilities include, but are not limited to, storm sewers,
drainage channels, inlet channels, biofilters and basins.
Section 6.03. Maintenance of Identification Signs. The Declarant has determined that it is
desirable to construct, install, and Maintain community and street identification signs within
Berkmar Overlook. The initial construction and installation of community and street identification
signs deemed appropriate by Declarant shall be home and completed by Declarant. After the
installation of any such sign, the repair, maintenance, upkeep, improvement, enhancement and
replacement of community identification signs shall be home by and be the responsibility of the
Association. On Roads accepted into the public road system, the road signs shall meet the required
standards and be Maintained by the County of Albemarle ("County") Road System. All signs and
street lights in the subdivision shall be in accordance with the requirements of the County.
Section 6.04. Maintenance of Public and Private Roads.
(a) Right of Dedication. The Declarant shall have the right and power to
dedicate to public use certain Roads, so that the same may be accepted into the County Road
System and thereby be publicly Maintained.
(b) Regulation of Traffic and Parking. Until the Public Roads are accepted for
public use and maintenance, the Declarant, during the Declarant Control Period, and thereafter,
the Board shall have the right and power to place any reasonable restrictions upon the use of the
Public Roads, including the establishment of speed limits and regulation of parking along the
Roads. During the Declarant Control Period, and thereafter, the Board shall have the right and
power to place any reasonable restrictions upon the use of the Private Roads, including the
establishment of speed limits and regulation of parking along the Private Roads.
(c) Responsibility for Maintenance of the Public Roads. The initial
construction of the Public Roads shall be paid for by and shall be completed by the Declarant or
its assigns. Upon completion of the construction of the Roads, the cost of Maintenance, upkeep
or replacement of all Roads and sidewalks located within the established Public easements or right
of ways in Berkmar Overlook shall be the sole responsibility of the Declarant until accepted into
the public road system, except that the Association shall pay for snow and ice removal from the
roadways until acceptance into the public road system. No such cost will be borne by the County
of Albemarle or the Commonwealth of Virginia or any other public agency until accepted into the
County's public road system.
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(d) Responsibility for Maintenance of the Private Roads. The initial
construction of the Private Roads shall be paid for by and shall be completed by the Declarant or
its assigns. Upon completion of the construction of the Private Roads, the cost of Maintenance,
upkeep or replacement of all Private Roads and sidewalks located within the established private
easements or private right of ways in Berkmar Overlook shall be the sole responsibility of the
Association as set forth below:
(i) Minimum Standards: The Private Roads shall be Maintained with a
minimum twenty foot (20') wide easement and twenty foot (20') wide paved travel surface,
to be maintained in perpetuity to substantially the same condition it was in when approved
by the County and initially constructed by the Declarant. The travelway shall at all times
be Maintained so that it is safe and convenient for passenger automobiles and emergency
vehicles at all times except in severe temporary weather conditions.
(ii) Maintenance. For purposes of this subsection (d), `maintenance',
includes the maintenance of the Private Roads, and all curbs, curbs and gutters, drainage
facilities, utilities, dams, bridges and other Private Road improvements, and the prompt
removal of snow, water, debris, or any other obstruction so as to keep the Private Road
reasonably open for usage by all vehicles, including emergency services vehicles. The
term "to maintain," or any derivation of that verb, includes the maintenance, replacement,
reconstruction and correction of defects or damage.
(iii) Cost of Maintenance. The Owner(s) of Lots shall be equally
responsible for the cost of the maintenance of, and/or repair to, the Private Roads, by and
through the Association. No public agency, including the Virginia Department of
Transportation and the County of Albemarle, Virginia, will be responsible for
maintaining any improvement identified as part of the Private Roads in Berkmar
Overlook unless and until such improvement(s) are accepted into the public road system.
(iv) When to Maintain. After the initial construction of the Private Road,
any further construction, maintenance or repair shall be undertaken with the approval of
the Board. The cost and obligations to pay for Private Road Maintenance shall be part of
the Assessment structure of the Association.
(e) Responsibility for Maintenance of the Planting Strips and Driveway
Aprons. Certain planting strips and each Lot Owner's driveway apron shall be located within the
Road, and while such Road is a Private Road, such planting strips and driveway aprons shall be
Maintained by the Association; when such Road becomes a Public Road that is offered and
accepted into the public road system, then (i) each Lot Owner that benefits from a driveway apron
that leads to the driveway of their Lot shall be solely responsible for the Maintenance of such
driveaway apron, and (ii) the Association shall continue to Maintain the planting strip.
(f) Parking Areas. Each Lot is required to utilize garage and driveway parking
to the fullest extent, first and foremost, for their vehicles. Any parking areas that are established
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in Berkmar Overlook will be used and Maintained according to rules to be adopted by the Board.
Such parking spaces may be assigned to individual Lots and/or reserved as guest parking, to be
determined and modified from time to time by the Board. Available Parking spaces will NOT be
allocated equally to every Lot or Owner. Any Parking Areas along the Private Road will be
Maintained in the same manner as the Private Roads in (d) above.
Section 6.05. Maintenance of Grounds. The initial grading, seeding, and landscaping of
Common Areas, entrance features, and, storm water management facilities, as deemed appropriate
by Declarant, shall be home and completed by Declarant. Upon completion of the Common
Areas, entrance features and storm water management facilities, the Association shall be
responsible for the maintenance of all grass, and the maintenance of, and in its discretion, the
replacement of, all shrubbery and other plantings within the Common Area, which are either
natural or were planted by Declarant within the Common Areas and the costs of such maintenance
shall be an expense of the Association. Except as otherwise provided for herein, it is each Owner's
responsibility to Maintain all landscaping, shrubbery and plantings on its Lot.
Section 6.06. Maintenance of Common Areas Improvements. After the initial installation
by the Declarant is complete, the Association shall be responsible for the upkeep, maintenance,
management, operation and control of the Common Area and all improvements thereon including
but not limited to, sidewalks, playground equipment, pavilion, benches, all fixtures, personal
property and equipment related thereto, and the Association shall be responsible for paying
personal property and real estate taxes, if any, on the Common Area and all improvements and
personal property located thereon. The responsibility of the Association with regard to the upkeep,
maintenance, management, operation and control of such Common Area shall include any and all
sidewalks, pedestrian pathways, and trails, parks, tot lots and playgrounds, pavilion, playing fields,
the storm water management facility, open space areas and all of the access and parking areas for
any such facilities. The Association shall keep the Common Area in good, clean and attractive
condition as determined by the Board. Notwithstanding any other provision of this Declaration, if
any Owner through his own negligence or through his construction, development or other unusual
activity on his/her Lot causes damage to any portion of the Common Area, then he/she shall be
solely and exclusively responsible for the repair of such damage without the benefit of contribution
from the other Owners, the Declarant or the Association.
Section 6.07. Maintenance of Party Walls.
(a) General Rules of Law to Apply. Each wall which is built as a part of the
original construction of any townhouse or attached dwelling unit upon the Property subject to this
Declaration and placed on the dividing line between Lots shall constitute a parry wall, and to the
extent not inconsistent with the provisions of Section 6.07(b), the general rules of law regarding
party walls and liability for property damage due to negligence or willful acts or omissions shall
apply thereto.
(b) Sharing of Repair and Maintenance. The cost of reasonable repair and
maintenance of a party wall shall be shared by the Owners who make use of the wall in proportion
to such use.
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(c) Destruction by Fire or Other Casualty. If a party wall is destroyed or
damaged by fire or other casualty, any Owner who has used the wall may repair or restore it, and
if the other Owners thereafter make use of the wall, they shall contribute to the cost of repair or
restoration thereof in proportion to such use, without prejudice, however, to the right of any such
Owner to call for a larger contribution from the others under any rule of law regarding liability for
negligent or willful acts or omissions.
(d) Weatherproofing. Notwithstanding any other provision of Section 6.07(b),
any Owner who by his negligent or willful act causes the party wall to be exposed to the elements
shall bear the whole cost of furnishing the necessary protection against such elements.
(e) Right to Contribution Runs With Land. The right of any Owner to
contribution from any other Owner under this Section 6.07 shall be appurtenant to and shall run
with the land and shall pass to such Owner's successor in title.
(f) Association's Right to Repair and Maintain. In the event that any Owner shall fail
to Maintain a party wall in a manner satisfactory to the Board, the Association, after thirty (30)
days' prior written notice to such Owner and upon the affirmative vote of a majority of the Board
shall have the right (but not the obligation), through its agents and employees, to enter upon such
Lot and to repair, Maintain and restore the party wall. The cost of such repair and maintenance
shall be added to and become a part of the Assessments (as defined in Section 8.01 below) to which
such Lot(s) are subject, plus an administrative of Fifteen Percent (15%) of the cost of such work
or Fifty Dollars ($50.00), whichever is greater.
Section 6.08. Maintenance of Lots and Structures on Lots
(a) Maintenance by Owner. Exterior maintenance on improvements and
dwelling units is NOT required to be performed by the Association. Except as otherwise provided
for in this Declaration, the Owner of such Lot shall perform such maintenance, repair and
replacement, and shall keep his Lot and all structures thereon in good order, condition and repair,
including but not limited to:
(i) Removal of snow and ice from walkways, leadways, lead walks, and
driveways;
(ii) Exterior painting of trim, doors, shutters, siding and any other painted
surface, as required and approved by the Board (or as may be delegated by the Board to the
Architectural Review Board);
(iii) Trimming, weeding, watering, planting and general upkeep of all
landscaping beds on the Lot, including the removal and replacement of dead trees, shrubs
and plantings;
(iv) Power washing;
(v) All tree and branch maintenance for trees, as well as general debris,
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located on an Owner's Lot.
(vi) Watering. The Declarant and the Association are not responsible to
water lawns or landscaping on Lots. Individual Lot Owners are responsible to adequately
water the lawn and landscaping on their individual Lots. Failed plantings, trees and/or
lawns are the Lot Owner's obligation to cure.
(vii) Street Lighting. Berkmar Overlook will be illuminated with light
from a required post lamp and/or porch lamp on each Lot as approved by the Declarant, or
by the ARB, as applicable. Such light will be activated by a photo -sensor at each dwelling.
Owners must ensure that their required lamp is operating correctly and must replace burned
out bulbs.
(viii) All of the above maintenance items shall be governed by standards
established by the Declarant during the Declarant Control Period, and thereafter, by the
Board (or as may be delegated by the Board to the Architectural Review Board).
(ix) In the event that any Owner shall fail to Maintain, repair and/or replace
any item of maintenance, repair or replacement for which he is responsible in a manner
satisfactory to the Board of Directors, the Association, after thirty (30) days' prior written
notice to such Owner and upon affirmative vote of a majority of the Board of Directors,
shall have the right (but not the obligation) to provide such maintenance, repair and/or
replacement as in the opinion of a majority of the Board of Directors is required, and the
cost thereof plus an administrative fee of 15% of the cost of such work or Fifty Dollars
($50.00), whichever is greater, shall be assessed against the Owner of such Lot and added
to and become a part of the Association's assessment accounts as determined appropriate
by the Board of Directors. In addition, the Board has the authority, but not the obligation,
to initiate certain community -wide exterior maintenance and provide for the same under
regular or special assessment as provided for herein.
(b) Maintenance by the Association. The Association shall provide exterior
maintenance as follows:
(i) Limited Landscaping. Landscaping Maintenance by the Association
shall include periodic lawn cutting services that are contracted for on each Lot by the Board.
These landscaping services may also include routine thatching, fertilizing and aerating, at
the discretion of the Board. Lawn cutting inside of fenced areas on a Lot may be limited
and restricted, according to rules set forth by the Board. Lawns and yard within fences may
be required to be Maintained by Owners under Section 6.08(a) above.
(ii) Mulch. Mulch in landscaped beds. The Association may also
include periodic mulch services for landscaping beds and/or trees that are in the front of
any Lot, and/or, in the front and on one (1) side for corner or end unit Lot.
(iii) Leaves. Leaf cleaning from gutters and downspouts, to prevent
overflow and clogging of the drainage systems.
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(iv) Sidewalk Snow/Ice Removal. The Association shall provide snow
and ice removal from the connective neighborhood sidewalks adjacent to the Roads, but
not for the private lead walks or driveways on each Lot. The Board and/or Managing Agent
(defined in Section 14.01) may adopt rules and regulations governing such snow/ice
removal.
(v) Site Planned Retaining Walls. The Association will provide for the
repair and Maintenance of retaining walls that are installed as part of the original approved
site plan for Berkmar Overlook, whether such retaining walls are located in the Common
Area or on an individual Lot.
(vi) Trash. The Association shall cause the removal of trash from each
Lot, in accordance with Section 10.13 below.
(vii) All of the above maintenance items shall be governed by standards
established by the Declarant during the Declarant Control Period, and thereafter, by the
Board.
ARTICLE VII — THE ASSOCIATION
Section 7.01. Membership. The Owner of a Lot shall be a Member of the Association. In
addition, Declarant shall be a Member of the Association as set forth in this Declaration, the
Articles of Incorporation and Bylaws of the Association so long as Declarant owns any Lot.
Membership in the Association shall be appurtenant to and may not be separated or alienated from,
ownership of Lots.
Section 7.02. Voting Rights. The total number of residential Dwelling Units shall be
determined as permitted by the County of Albemarle, Virginia, and as recorded Lots for Dwelling
Units in the Clerk's Office. Each Lot constitutes one (1) residential Dwelling Unit. Berkmar
Overlook and this Association shall have two classes of voting membership:
Class A: Class A Members shall be all Owners of Lots, with the exception
of the Class B Member. Class A Members shall be entitled to one (1) vote for each Lot
owned by said Class A Member. In the event that more than one person or entity holds such
interest in any Lot, all such persons or entities shall be Members. The vote for such Lot shall
be exercised as they, among themselves, determine, but in no event shall more than one (1)
vote be cast with respect to any Lot.
Class B: The Class B Member shall be the Declarant. The Class B Member
shall be entitled to sixty (60) votes for each Lot owned. The Class B Membership shall
terminate on the date on which Declarant has transferred to Class A Members a total of
ninety-five percent (95%) of total anticipated number of Lots that may be developed on
the Property. The Declarant may terminate its Class B Membership at any time by filing
with the Association and in the Clerk's Office a written certificate terminating
Declarant's interest in Berkmar Overlook as Class B Member. At such time as the
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Declarant's Class B Membership terminates, the Declarant shall become a Class A
Member to the extent and for the period during which the Declarant owns any Lot.
Section 7.03. Board of Directors. The initial Board of Directors shall be appointed by the
Declarant until the first meeting of the Association. At said meeting the Board of Directors of the
Association shall be elected by the Members as set forth in the Bylaws of the Association.
Section 7.04. Powers and Duties of Board of Directors. The Board of Directors shall have
all of the powers and duties necessary for the administration of the affairs of the Association and
may do all such acts and things as are not by the Declaration or by the Articles of Incorporation
and/or Bylaws of the Association required to be exercised or done by the Members of the
Association.
Section 7.05. Quorum; Notice. At any meeting called to vote on taking any action
authorized under this Declaration, an amendment to, or the termination of, this Declaration,
the presence of Members or of proxies entitled to cast twenty-five percent (25%) of all votes
shall constitute a quorum. If the required quorum is not present, another meeting may be
called, and the presence of Members or of proxies entitled to cast ten percent (10%) of all
votes shall constitute a quorum at the subsequent meetings called for the same purpose.
Written notice of said meeting shall be hand delivered, mailed postage prepaid or emailed
to all Members not less than fifteen (15) days prior to the date of the meeting.
Section 7.06. Proxies. At all meetings of Members, each Member may vote in person
or by proxy. All proxies shall be in writing and filed with the Secretary prior to the taking of any
vote by the Members. Every proxy shall be revocable and shall automatically cease (i) upon
conveyance by the Member of his or her Lot, or (ii) if the Member giving the proxy personally
attends the meeting to which the proxy pertains. When required by the Board of Directors, there
shall be sent with notices of regular or special meetings of the Association, a statement of certain
motions to be introduced for vote of the Members and a ballot on which each Member may vote for
or against each such motion.
Section 7.07. Voting Rights Abated. Voting rights are abated for any Lot where the current
Owner is subject to past due and delinquent assessments, which are in excess of 30 days past due.
Voting rights resume after all past due Assessments are brought current.
ARTICLE VIII — ASSESSMENTS
Section 8.01. Types of Assessments. Within Berkmar Overlook, three (3) types of
assessments are permitted, as follows: (1) Community Assessments made by the Association upon
all Lots for regular and daily community purposes; (2) Community Reserve Fund
Assessments made by the Association upon all Lots for the periodic work such as: the long
term capital improvements for Common Areas, parking areas (if any), and, other repairs or
replacements of community features; and (3) Reserve Fund Assessment for Lots made by the
Association upon Lots with attached units for the periodic work such as: the long term capital
improvements to certain shared gutters and roofs among more than one Lot, and other repairs or
replacements as provided for in this Declaration (collectively referred to as the "Assessments"). In
addition, all of the above Assessments can be regular or special as set forth herein. A chart is
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provided in Section 8.06(e) to illustrate the main features of the Assessment Structure.
Section 8.02. Assessments by Class and Exceptions. All Assessments in this section are paid
by Class A Members. Class B Members, the Declarant, and, third parry home builders, do not pay
any Assessments hereunder, except as provided for below. Notwithstanding the foregoing, in the
event that a third party home builder does not convey his improved Lot within twelve (12)
months of the issuance of a Certificate of Occupancy, said third party home budder shall thereafter
begin to pay Assessments as a Class A Member beginning on the first calendar day of the month
following the twelve (12) month anniversary of the issuance of the Certificate of Occupancy.
Section 8.03. Community Assessments.
(a) Creation of Community Assessment Lien. Declarant, for each Lot owned,
hereby covenants, and each Owner of any Lot, by acceptance of a deed or other instrument of
conveyance therefor, including any purchaser at a judicial or trustee sale, whether or not it shall
be so expressed in any such deed or other conveyance, shall be deemed to covenant and agree to
pay to the Association the following Community Assessments: (1) all annual assessment dues,
fees and charges, and (2) all special Community Assessments for capital improvements, major
repair, and/or extraordinary items, such special Community Assessments to be fixed, established
and collected from time to time as hereinafter provided. The Community Assessments, together
with interest as hereinafter provided, costs of collection, and reasonable attorneys' fees, shall be a
charge upon the land and shall be a continuing lien upon the Lot against which each such Community
Assessment is made as hereinafter provided. No Owner may waive or otherwise avoid liability for
the Community Assessments by the non-use of the Common Area or by abandonment of his
Lot or rights in the Common Area.
(b) Purpose of Community Assessments. The Community Assessments levied
by the Association shall be used to promote the enjoyment, health, safety and welfare of the residents
in Berkmar Overlook, and in particular for the repair, maintenance, upkeep, improvement and
enhancement of (i) access easements, (ii) Private Roads, (iii) parks, (iv) sidewalks within the parks,
(v) certain retaining walls as provided for in this Declaration, (vi) surface and storm water drainage
facilities, (vii) the trees/bushes contained within the Landscaping Easements (defined in and subject
to Article XIII) whether within the Common Areas or the individual Lots, (viii) the retaining walls
within the Retaining Wall Easements (defined in and subject to Article XIV) (ix) identification signs,
(x) exterior lighting systems for streets (if applicable) and/or (xi) Common Areas, (xii) landscaping
maintenance of all Lots as determined by the Board, and (xiii) Maintaining the grounds of Common
Area (including the Existing Cemeteries and landscaping areas), (xiv) parking areas (if any), and
(xv) amenities in Berkmar Overlook, including, but not limited to, (a) mowing grass, (b) landscaping,
(c) paving, (d) striping, (e) cleaning, (1) snow, and (g) ice removal in the Common Areas, as provided
in this Declaration, and (xvi) if deemed necessary and/or appropriate by the Board, the advancement of
the cost of any payment, repair and/or replacement of any item which is the responsibility of any
Owner until such time as the additional assessment attributable thereto can be levied and collected
from the Owner(s) responsible therefor. The Community Assessment is also to cover lawn
mowing, mulch services, trash removal, and other services as set forth in Section 6.08(b). The
Community Assessment is also for the administrative expenses of operating the Association,
including but not limited to, the fees and expenses of hiring a professional management company,
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insurance, mailings, websites, banking, corporate filings, other professional assistance, and all
other administrative expenses.
(c) Annual Community Assessments. The annual Community
Assessments shall be made on the basis of a calendar year beginning January I' and ending December
31 '. The level of such annual Community Assessments shall be established annually by the Board
as set forth in the Bylaws of the Association and upon the establishment of the annual Community
Assessments, all Owners shall be notified of the amount of such fee and the terms of the payment
thereof. Fees shall, when feasible, be based on the Association's approved operating budget for
the fiscal year in which the Assessment will be collected. The initial annual Community
Assessment on each improved Lot (improved by a completed Dwelling Unit for which a certificate
of occupancy has been issued by the County of Albemarle, Virginia) shall be [insert amount] per
year, prorated from the commencement of collections.
(d) Special Community Assessments. In addition to the annual Community
Assessment authorized above, the Association may levy in any assessment year a special
Community Assessment applicable to that calendar year only for the purpose of defraying, in
whole or in part, the costs of any major and/or extraordinary expense of the Association,
and, if deemed necessary and/or appropriate by the Board, the advancement of the cost of any
payment, repair and/or replacement of any item which is the responsibility of any Owner until such
time as the additional assessment attributable thereto can be levied and collected from the
Owners(s) responsible therefor; provided, that any such special Community Assessment shall have
the consent of at least two-thirds (2/3) of the votes of the Members present to vote at a duly called
meeting, in person or by proxy, where a quorum is established for such meeting.
(e) Uniform Rate of Assessment. Both annual and special Community Assessments must be
fixed at a uniform rate for all improved Lots as a class, and may be collected in advance on a
quarterly or other periodic basis as determined by the Board.
Section 8.04. Community Reserve Fund Assessments.
(a) Creation of Reserve Fund Assessment Lien. The Declarant, for each Lot
owned on which a Dwelling Unit is presently or shall hereafter be constructed, hereby covenants,
and each Owner of any such Lot, by acceptance of a deed or other instrument of conveyance
therefor, including any purchaser at a judicial or trustee sale, whether or not it shall be so expressed
in any such deed or other conveyance, shall be deemed to covenant and agree to pay to the
Association the following Community Reserve Fund Assessments: (1) all annual Community
Reserve Fund Assessments, fees and charges, and, (2) all special Community Reserve Fund
Assessments for Common Area improvements or other extraordinary expenses of the Association.
The Community Reserve Fund Assessments, together with interest as hereinafter provided, costs
of collection, and reasonable attorneys' fees, shall be a charge upon the land and shall be a
continuing lien upon the Lot against which the Community Reserve Fund Assessments are made
as hereinafter provided. No Owner may waive or otherwise avoid liability for such Community
Reserve Fund Assessment by the non-use or abandonment of his Lot.
(b) Purpose of Community Reserve Fund Assessments. The Community
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Reserve Fund Assessments levied by the Association shall be used for the purpose of. (i) the
long term capital improvements or major maintenance of the Common Areas, Private Roads, and
certain retaining walls described in this Declaration, (ii) other unforeseen and extraordinary
expenses of the Association, (iii) the removal and replanting of trees/bushes (or other costs
associated therewith) located within the Landscaping Easements (defined in Section 13.01), (iv)
the removal, maintenance, repair and/or replacement of any retaining walls within the Retaining
Wall Easements (defined in Section 14.01) and/or (v) improvements to either of the Existing
Cemeteries (defined in Article XV), whether located within Common Areas or within individual
Lots. Repairs and replacements may be made at such time and in such manner as the Board shall
determine. General yearly maintenance or minor repairs should be covered under the Annual
Community Assessments above.
(c) Annual Community Reserve Fund Assessment. The annual Community
Reserve Fund Assessment shall be made on the basis of a calendar year beginning January I' and
ending December 31 1. The initial annual Community Reserve Fund Assessment on each improved
Lot (improved by a completed Dwelling Unit for which a certificate of occupancy has been issued
by the County of Albemarle, Virginia) shall be [insert amount] per year, prorated from the
commencement of collections. The Board may defer or waive reserve funding in any given
calendar year based on the needs analysis of a reserve study by the Board.
(d) Special Community Reserve Fund Assessment. In addition to the annual
Reserve Fund Assessment authorized above, the Association may levy in any assessment year a
Special Community Reserve Fund Assessment applicable to that calendar year only for the purpose
of defraying, in whole or in part, the costs of any major and/or extraordinary improvements to the
Common Areas or other extraordinary expenses of the Association; provided, that any such Special
Community Reserve Fund Assessment shall have the consent of at least two-thirds (2/3) of the
votes of the Members present to vote at a duly called meeting, in person or by proxy, where a
quorum is established for such meeting.
(e) Uniform Rate of Assessment. Both annual and special Community Reserve
Fund Assessments must be fixed at a uniform rate for all improved Lots as a class and may be
collected in advance on a quarterly or other periodic basis, as determined by the Board of Directors.
Section 8.05. Reserve Fund Assessments for Lots.
(a) Creation of Reserve Fund Assessment Lien for Lots. The Declarant, for each
Lot owned on which a Dwelling Unit is presently or shall hereafter be constructed, hereby
covenants, and each Owner of any such Lot, by acceptance of a deed or other instrument of
conveyance therefor, including any purchaser at a judicial or trustee sale, whether or not it shall
be so expressed in any such deed or other conveyance, shall be deemed to covenant and agree to
pay to the Association the following Reserve Fund Assessments for Lots: (1) all annual Reserve
Fund Assessments for Lots, fees and charges, and, (2) all special Reserve Fund Assessments for
Lots for other extraordinary expenses of the Association relating to Lots. The Reserve Fund
Assessments for Lots, together with interest as hereinafter provided, costs of collection, and
reasonable attorneys' fees, shall be a charge upon the land and shall be a continuing lien upon the
Lot against which the Reserve Fund Assessments for Lots are made as hereinafter provided. No
Owner may waive or otherwise avoid liability for such Reserve Fund Assessment for Lots by the
Page 18 of 36
non-use or abandonment of his Lot.
(b) Purpose of Reserve Fund Assessments for Lots. The Reserve Fund
Assessments for Lots levied by the Association shall be used for the purpose of (i) the long term
capital improvements or major maintenance of the gutter and roofs of Lots, and/or (ii) other
unforeseen and extraordinary expenses of the Association relating to Lots. Roof and gutter repairs
and replacements may be made at such time and in such manner as the Board shall determine.
(c) Annual Reserve Fund Assessment for Lots. The annual Reserve Fund
Assessment for Lots shall be made on the basis of a calendar year beginning January 1 ' and ending
December 31'. The initial annual Reserve Fund Assessment for Lots shall apply to improved Lots
only (improved by a completed Dwelling Unit for which a certificate of occupancy has been issued
by the County of Albemarle, Virginia) and shall be [insert amount] per year. The Board may defer
or waive reserve funding in any given calendar year based on the needs analysis of a reserve study
by the Board.
(d) Special Reserve Fund Assessment for Lots. In addition to the annual
Reserve Fund Assessment for Lots authorized above, the Association may levy in any assessment
year a special Reserve Fund Assessment for Lots applicable to that calendar year only for the
purpose of defraying, in whole or in part, the costs of any major and/or extraordinary
improvements to the exterior roofs and gutters or other extraordinary expenses of the Association
for Lots; provided, that any such special Reserve Fund Assessment for Lots shall have the consent
of at least two-thirds (2/3) of the votes of the Members present to vote at a duly called meeting, in
person or by proxy, where a quorum is established for such meeting.
(e) Uniform Rate of Assessment for Lots. Both annual and special Reserve
Fund Assessments for Lots must be fixed at a uniform rate for all improved Lots as a class and
may be collected in advance on a quarterly or other periodic basis, as determined by the Board of
Directors.
Section 8.06: Date of Commencement of ALL Assessments and ALL Annual Reserve
Fund Assessments, and, Increases in Assessments.
(a) Commencement. Except as set forth in Section 8.02, the annual
Assessments provided for herein shall commence as to all Lots on the date to be specified by the
Declarant, but in no event later than the first day of the first calendar quarter following the first
meeting of the Association. The Assessments may be prorated to reflect any portion of a year when
dues collection commences. The Reserve Fund Assessments provided for herein shall commence
as to all improved Lots on the date to be specified by the Declarant, but in no event later than the
first day or the first calendar quarter following the first meeting of the Association. The Board of
Directors shall set the amount of the Assessments against each applicable Lot and the amount of
the Reserve Fund Assessments against each applicable Lot at least thirty (30) days in advance of each
annual assessment period. Written notice or e-mail notice of such Assessments shall be sent to the
Owners subject thereto, by notice to the address of the property, or, such other address that has been
provided in writing to the Association from the Owner of record. The Board of Directors shall have
the right to subsequently increase such annual assessments and to make a supplemental levy upon the
Owners subject thereto if the Board of Directors determines that the amount of such normal
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assessment as initially set was inadequate.
(b) Assessment Collection Dates. Unless otherwise established by the Board of
Directors, such annual Assessments shall be due in advance in four (4) equal quarterly installments
on the I day of January, April, July and October, and annual Assessments shall be prorated where
sale is made or the residential structure is completed between the quarterly due dates. The
Association shall within fourteen (14) business days of request furnish a certificate in writing
signed by an officer of the Association setting forth whether the Assessments on a specified Lot
have been paid. A reasonable charge may be made by the Board of Directors for the issuance of
these certificates. Such certificates shall be conclusive evidence of payment of any assessment
therein stated to have been paid. The frequency of assessment collection is initially set as quarterly,
but may be adjusted by action of the Board of Directors to monthly, semiannually or annually for
the effective management of the Association.
(c) Assessment Increases. Each calendar year, the Community Assessments
and Reserve Fund Assessments may be increased or decreased by up to twelve percent (12%) per
year from the prior year's annual amount for each particular type of Assessment, by action of the
Board of Directors. These increases or decreases by Board action apply to annual Community
Assessments (Section 8.03), Reserve Fund Assessments (Section 8.04), and, Reserve Fund
Assessment for Lots (Section 8.05), but do not apply to any special Assessments. Increases or
decreases, effective January I' of each year, can be set by the Board of Directors, without a vote
of the Members, not to exceed the twelve percent (12%) limit set forth herein. The Board of
Directors may fix such annual increase or decrease after due consideration of current and
anticipated maintenance costs, appropriate depletion allowances, reserve funds, and other needs of
the Association. Each type of Assessment may be considered separately by the Board and the
same percentage of increase or decrease need not apply uniformly across each type of Assessment.
Any increase requested by the Board of Directors in excess of twelve percent (12%) over the prior
calendar year's assessment must be approved by at least more than fifty percent (50%) of the votes
of the Members present to vote, in person or by proxy, at a meeting of the Association duly called
for this purpose, where a quorum has been established. Any increase allowed under this Section,
may be scheduled for collection as approved by the Board and need not be collected in equal
payments over the course of the applicable calendar year.
(d) New Owner Set Up Fee. There will be a New Owner Set Up Fee in an
amount to be set annually by the Board with the annual budget. The initial amount of the New
Owner Set Up Fee will be $50.00. Said amount is payable to the Association, upon the recordation
of a new Deed to any Lot. The fee may be assigned by the Board to a Management Company for
the administrative costs associated with establishing a new Lot Owner in the records of the
Association for mailings, e-mails, accounting and other communications. The fee is imposed on
a per Lot basis to new Owners as evidenced by a Deed of conveyance to the Lot in an arm's length
transaction. It is the intention of this Section to exclude certain conveyances, including but not
limited to, Deeds of Gift, bequests under a will, transfers by the Declarant and home builders, as
well as court ordered transfers.
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(e) Assessment Illustrative Summary. This is a general illustrative table of
Regular Assessments only. Additional terms and conditions are set out in more detail throughout
this Article VIII and this Declaration. Special Assessments and periodic Assessment increases are
not illustrated in this table.
Type of Assessment
Starting
Assessments cover the following
Annual
services, generally.
Amount of
Assessment
Annual Community
$[to insert]/
Common Area Maintenance. Snow
Regular Assessment
year per Lot
& Ice Removal on Roads, gutter
cleaning, Association administrative
expenses and Maintain those certain
trees/bushes located within the
Landscaping Easements, and
maintain those certain retaining
walls located within the Retaining
Wall Easements and maintain those
certain burial plots located within
the Existing Cemeteries.
Annual Community
$[to insert]/
Long term capital improvement of
Reserve Fund
year per Lot
Common Area elements, such as
Assessment
private road repairs, entrance
features, park improvements and
storm water management facilities.
Removal and replanting of
trees/bushes located within the
Landscaping Easements. Removal,
repair, replacement of any retaining
walls within the Retaining Wall
Easements. Improvements to any
fencing located around the
perimeter or either Existing
Cemetery.
Annual Reserve
$[to insert]/
Long term capital improvements for
Fund Assessment
year per Lot
roofs and gutters on Lots.
for Lots
NOTES:
(1) Special assessments can be voted on and added to each of the Assessment types and
amounts listed above. (2) Starting amounts are effective when Assessments
commence and are subject to increases as voted on by the Board and/or the
Association. (3) There is a New Owner Set Up Fee to pay for administrative charges
associated with transfers in ownership. See 8.06(d) above.
Page 21 of 36
Section 8.07. Personal Obligation of Assessments. Assessments, together with interest as
hereinafter provided, costs of collection, and reasonable attorneys' fees, shall also be the personal
obligation of the person who was the Owner of such Lot at the time when Assessments first became
due and payable. In the case of co -ownership of a Lot, all such co -owners shall be jointly and
severally liable for the entire amount of such assessments. All Owners of Lots, by acceptance of
an instrument of conveyance, waive all rights to any homestead exemption with respect to their
personal obligation for the payment of such assessments, late charges and/or interest. The personal
obligation for unpaid delinquent Assessments (of all types) shall not pass to an Owner's or
Declarant's successor in title, unless expressly assumed by such successor in writing.
Section 8.08. Effect of Non -Payment of Assessments; Remedies of the Association. The
lien for all Assessments shall also secure all interest and costs of collection, including reasonable
attorneys' fees, whether suit is brought or not, which may be incurred by the Association in
enforcing said lien. Any Assessment which is not paid when due shall bear interest from the date
when due until paid at the rate of fifteen percent (15%) per annum, and in addition, the Owner shall
pay a fixed late fee of $10.00 per month, billed monthly beginning fifteen (15) days after the due
date for any payment not received by the Association when due. Such late fee may be increased
or decreased by the Board. In the event that any Owner is more than forty-five (45) days delinquent
in the payment of any Assessment (fees, charges and interest), the Association shall have the right
and power to accelerate the balance of the calendar year's Assessments and to consolidate said
balance with any delinquent amount. In addition, all voting rights of an Owner shall cease when
an Owner is more than forty five (45) days delinquent in payments until all delinquent
Assessments, fees, charges and interest are brought current.
Section 8.09. Lien for the Payment of Assessments and Subordination of Lien to First
Mortgage. There shall be a continuing lien upon each of the individual Lots subject thereto in order
to secure payment of the Assessments provided for in this Declaration, but such lien shall be at all
times subject and subordinate to any first mortgage or deed of trust placed on the Lot at any time.
However, at such time as the Association places to record in the Clerk's Office a notice of
delinquency as to any particular Lot on a form prescribed by the Board of Directors, then, from
the time of recordation of said notice, the lien of such delinquent Assessments in the amount stated
in such notice shall be a lien prior to any subsequently recorded first or second mortgages or deeds
of trust in the same manner as the lien of a docketed judgment in the Commonwealth of Virginia.
The lien of Assessments provided for herein, whether or not notice has been placed on record as
above provided, may be foreclosed by a bill in equity in the same manner as provided for the
foreclosure of mortgages, vendor's liens, and liens or a similar nature. A statement from the
Association showing the balance due on any Assessment shall be prima facie of the current
Assessment delinquency, if any, due on a particular Lot. The lien of the Assessments provided
for herein shall be subordinate to the lien of any First Mortgage. Sale or transfer of any Lot shall
not affect any Assessment lien; provided, however, that the sale or transfer of any Lot pursuant to
the foreclosure of a Mortgage or any proceeding in lieu thereof, shall extinguish the lien of such
Assessments as to payments which became due prior to such sale or transfer. No sale or transfer
shall relieve such Lot from liability for any Assessments thereafter becoming due or from the lien
thereof. No sale or transfer of any Lot shall relieve an Owner from liability for any such
Assessments due and owing prior to the date of conveyance of the Lot. No amendment to this
Section shall affect the rights of the holder of any First Mortgage on any Lot (or the indebtedness
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secured thereby) recorded prior to recordation of such amendment unless the holder thereof (or
the indebtedness secured thereby) shall join in the execution of such amendment.
ARTICLE IX - ARCHITECTURAL CONTROL
Section 9.01. Purpose. An Architectural Review Board shall regulate the external
design, appearance, use, location and maintenance of improvements and landscaping on any Lot
or the Common Area, other than improvements constructed or landscaping done by Declarant, its
contractors and subcontractors, in such a manner so as to preserve and enhance values, to maintain
a harmonious relationship among structures and the natural vegetation and topography, and to
preserve the general character and architectural compatibility of Berkmar Overlook as constructed
by Declarant.
Section 9.02. Conditions. No improvements, alterations, repairs, change of paint or stain
colors, excavations, changes in grade, clearing, major landscaping or other work which in any way
alters such property from its natural or improved state on the date such property was first conveyed in
fee by Declarant or a third -party townhouse budder to an Owner shall be made or done without the
prior approval of the Architectural Review Board except as otherwise expressly provided herein.
No buildings, sheds, fences, walls, residences or other structures or improvements to a structure
erected, or constructed on any portion of Berkmar Overlook shall be commenced, other than by
Declarant, without the prior written approval of the Architectural Review Board. Declarant shall
not be required to obtain the consent or the approval of the Architectural Review Board or of the
Association for any improvements, construction, grading or landscaping performed by Declarant,
its contractors and subcontractors in Berkman Overlook.
Section 9.03. Procedures. Any Owner who desires to construct any structure,
improvement on or make alteration to the exterior appearance of his Lot, or the improvements
thereon, and the Association itself, if it desires to construct any improvements or make any
alteration to any Lot or the Common Area, shall submit to the Architectural Review Board the
plans and specifications therefor showing (a) the site plan showing the location of all proposed
and existing structures on the Lot; (b) the exterior elevations for the proposed structure or
alteration; (c) specifications of height, color, materials and other details affecting the exterior
appearance of the proposed structure or alteration; and (d) a description of the plans for
existing and proposed landscaping or grading. In discharging its functions and duties, the
Architectural Review Board shall endeavor to maintain and preserve the general character and
architectural compatibility of Berkmar Overlook as constructed by Declarant. In the event the
Architectural Review Board fails to approve, modify or disapprove in writing a request for approval
required herein within thirty (30) days after plans, specifications, or other appropriate materials
have been submitted in writing to it, in accordance with its adopted procedures, the approval will
be granted. The Architectural Review Board may adopt procedures, rules or standards as to the
information it requires to be submitted to it with any request for approval, including establishing
an application fee and a review fee.
Page 23 of 36
Section 9.04. Composition of Architectural Review Board. During the Declarant
Control Period, the Architectural Review Board (also known as ARB) shall be a committee
initially consisting of at least one (1) person, appointed by Declarant, but the ARB may be increased
by the Board from time to time to not more than five (5) members. Such person(s) may, but need
not, be members of the Association. Members of the ARB shall serve for a term of one year or until
their successors are appointed and qualified. Following the Declarant Control Period, the members
of the ARB shall be appointed by the Board. Board members may serve on the ARB.
Section 9.05. Right of Entry. In emergency circumstances or otherwise upon prior notice,
the Association and the ARB, through their authorized representatives shall have the right to enter
upon any Lot and improvements thereon, at all reasonable times to ascertain whether the Lot or
any structure on it is in compliance with the provisions of this Article IX and/or any guidelines,
regulations, standards or rules of the ARB without being deemed to have committed a trespass or
wrongful act.
ARTICLE X — GENERAL USE RESTRICTIONS AND REQUIREMENTS
Section 10.01. Residential Use. No Lot shall be utilized for the conduct of any
commercial or professional enterprise of any kind. All Lots shall be utilized exclusively for single
family residential living units and for no other purposes. For the purposes of this Declaration, the
term "single family" shall mean and be defined as follows: (a) an individual, (b) two or more
persons related by blood, marriage, adoption or guardianship together as a single housekeeping
unit, or (c) no more than three persons not related by blood, marriage, adoption or guardianship
living together as a single housekeeping unit. Notwithstanding the foregoing, telecommuting and use
of a Lot for home office by the Lot Owner shall be permitted provided that (i) such use is permitted
under the applicable zoning ordinance; (ii) no outside sign advertising or identifying such
profession or industry will be permitted on any Lot; and, (iii) such telecommuting or home office
does not require any commercial visitors to Berkmar Overlook.
Section 10.02. Nuisances. No noxious, boisterous or offensive activity shall be carried on,
upon, or in any Lot, nor shall anything be done thereon which may be, or may become, an annoyance,
nuisance, fire hazard or safety hazard to the neighborhood. The provisions of this section shall not
proscribe or limit in any way the right of Declarant to carry on any development and construction
activities in Berkmar Overlook.
Section 10.03. Signs, Flags and Decorations. No billboards, signs or flags of any kind shall
be erected, Maintained or displayed on any Lot except with the prior approval by the ARB;
provided, however, that the Declarant, its successors and/or assigns and other third party home
builders may post a model home sign, lot marker signs, and "for sale" signs on available Lots and in
the Common Areas, until the Declarant has sold or transferred the last Lot. All other "for sale"
and/or "for rent' signs are limited to window signs that are no larger than 2.5 feet in height and
width. Each Lot may only display one (1) "for sale" or "for rent' sign at any given time. Each Lot
is permitted to display one American flag on a pole attached to a front porch or other first floor
frontage of the dwelling. Said flag shall not exceed 3 feet by 5 feet in size. The Board shall have
the right to promulgate rules relating to holiday decorations, including but not limited to the
location and hours that lights may be left on and a prohibition against exterior decorations that
play music or other sounds.
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Section 10.04. Recreational and Motor Vehicles. Except as may otherwise be expressly
provided for in the rules and regulations adopted by the Association, no mobile home, trailer,
camper, bus, truck over three quarter (3/4) ton rated capacity, or boat shall be placed, stored or parked
within Berkmar Overlook, either temporarily or permanently, on a Lot and/or Public Road in the
subdivision. In addition, the Association shall have the right to regulate or prohibit the storage or
parking, whether temporary or permanent, within Berkmar Overlook of any van or truck which in
the opinion of the majority of the Board of Directors harms or detracts from the general aesthetic
character and harmony of Berkmar Overlook by reason of. (1) the types and/or quantities of materials
or items stored within or on such van or truck; (2) the general disrepair, poor condition, or
dilapidated state of such van or truck; or (3) the unusual or tasteless exterior appearance of such van
or truck created by unusual or custom paint schemes, graphics, illustrations and/or words. The
provisions of this section shall not proscribe or limit in any way the rights of Declarant to park
vehicles related to construction activities by Declarant, its contractors and subcontractors.
Section 10.05. No Temporary Structures. No structures of a temporary character, tent, or
trailer shall be used on any Lot or in the Common Area at any time for storage, as a residence, or
for any other purpose.
Section 10.06. Antennae, Aerials and Satellite Dishes. No antennae or aerials shall be
placed on any Lot or fixed to the exterior of any building, and no antenna or aerial placed or fixed
within a building shall extend or protrude from the exterior of such building, unless approved by the
Architectural Review Board. No transmitting or receiving equipment which might interfere with
television, radio or any other communications reception of Owners shall be used or permitted upon
or within any Lot. The provisions of this section shall not preclude the Association from
establishing a community antenna or earth receiving television system in Berkmar Overlook.
Whenever possible and based on signal availability, satellite dishes shall be placed in/on the rear
of a townhouse or home; when necessary, such dishes may be placed on the roof, so long as best
efforts are made to shield the view of the dish from the street. Dishes shall not exceed twenty four
(24) inches in diameter. Any damage done by the installation or removal of a dish shall be repaired
at the sole expense of the Lot Owner and not by the Association.
Section 10.07. Garage and Driveway Parking. To prevent parking problems
throughout Berkmar Overlook, garages and/or driveways must be utilized for vehicle parking by
the Members to their fullest useful extent so as to minimize the number of vehicles visible from
Common Areas and Roads at Berkmar Overlook. Lot Owners shall at all times keep all vehicles
within the garage, driveway or designated parking spot for their particular unit. The Declarant or the
Board may adopt Hiles, regulations and fines relating to parking, so that garages and driveways are
fully utilized for parking and that the guest parking is reasonably available for guests and short
term parking. The Board has the authority to designate and assign parking spaces to certain Lots
within the Common Area.
Section 10.08. Clothes Drying. No clothing, laundry or wash shall be aired or dried on any
portion of a Lot exposed to view from any other Lot, the Common Area or Roads and access
easements.
Page 25 of 36
Section 10.09. Pets. No animals, livestock or poultry of any kind shall be raised, bred or
kept on any Lot or within the Common Area, except that dogs, cats and other common household
pets may be kept on individual Lots, subject to reasonable rules and regulations established by the
Association. Dogs shall be under the control of their owner at all times. Dogs shall not be tied up
or penned outside overnight.
Section 10.10. Motor Vehicles. No inoperable motor vehicles or motor vehicles without
current tags and/or inspections shall remain within Berkmar Overlook for more than forty-eight
(48) hours. The Association in its rules and regulations shall have the power to define what
constitutes an inoperable motor vehicle.
Section 10.11. Regulation of Wood Stoves. No wood stove (including free-standing
and those inserted in existing fireplaces) shall be installed, Maintained or used on or within any
townhouse or Lot unless the following conditions are met:
(a) Installation, maintenance and/or use shall at all times be in compliance and
conformity with all local and state building and fire codes and regulations;
(b) Annual cleaning of the wood stove and flue serving the wood stove by and at the
expense of the Owner of such wood stove;
(c) Immediate correction and elimination by and at the expense of the Owner
of such wood stove of any unsafe or hazardous -condition which may occur or be discovered at
any time; and
(d) Annual inspection of the wood stove and flue serving such wood stove by
a designated agent or subcontractor of the Association, with the cost or such annual inspection
paid by the Owner of such wood stove.
Section 10.12. Storage of Firewood. No more than three-quarter (3/4) cord of firewood
shall be stored at anytime on or within any Lot and may not be piled, stacked or stored against the
exterior wall of any building.
Suction 10.13. Trash Collection. Trash removal is included as part of the Assessment
collection for the Association. It is anticipated that trash collection for Berkmar Overlook may
be accessed through a collection company hired by the Association. One (1) tote can will be
permitted per Lot. The Declarant shall have the right to designate a single trash/garbage removal
company to provide trash/garbage removal service to all Lots in Berkmar Overlook. This right
may be exercised by the Declarant to enhance the tranquility of Berkmar Overlook by reducing
the number of times each week that trash trucks are in Berkmar Overlook and to protect the Roads
in Berkmar Overlook from unnecessary wear and tear from multiple trips by multiple trucks. The
company may be changed from time to time if the company's service is not satisfactory to the
Declarant. Trash cans and totes may only be placed curbside the evening before a scheduled pick-
up day and must be brought back in from the curb on the same day after the trash pick-up. All
trash cans and totes shall be stored according to rules set by the Board. The Declarant assigns the
rights set forth in this Section to the Board of the Association at the end of the Declarant Control
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Period.
Section 10.14. Fencing and Decking. Fences and decks are not permitted without first
obtaining the approval of the Architectural Review Board pursuant to Article IX.
ARTICLE XI - DECLARANT'S RIGHTS
Section l l.01. Declarant's Rights. Declarant hereby reserves to itself, and each Owner of
any Lot, by acceptance of a deed or other instrument of conveyance therefor, hereby agrees, that
Declarant shall have the following rights, so long as Declarant owns any Lot in Berkmar Overlook
and/or any portion of the Property, to -wit:
(a) The right to replace, vacate or withdraw any portion of any platted area from
the real property subject to this Declaration, in accordance with the laws of the Commonwealth of
Virginia;
(b) The right to approve or disapprove any amendments to this Declaration
and any amendments to any corporate documents related to the Association; and
(c) The right to conduct the development, construction, marketing and
sale of all property in Berkmar Overlook owned by Declarant, including erection of signs, the
maintenance of model homes, and the use of Common Area for promotional purposes. The right
set forth herein may be assigned by Declarant to any builder in Berkmar Overlook.
Section 11.02. Release of Rights by Declarant. Declarant may, by an instrument recorded
in the Clerk's Office, release, at any time and without the approval or consent of any other
party, any of the rights reserved unto it under Section 11.01 hereof. At the end of the Declarant
Control Period, all rights reserved unto the Declarant herein shall be deemed transferred to the
Association, for administration by the Board.
ARTICLE XII — BUILDING SETBACK LINES
Section 12.01. Purpose. The building setback lines and/or setback requirements shown on
the Plat are set forth solely for informational purposes to show the setback requirements imposed
by the zoning ordinance of the County of Albemarle in effect on the date of approval of such
plat and are not restrictive covenants running with the land.
Section 12.02. Relief from Violation. Relief from any violation of such setback
requirements may be effectively and conclusively obtained by a variance or variances granted by
the Board of Zoning Appeals of the County of Albemarle, Virginia, or its successor governmental
body.
Page 27 of 36
ARTICLE XIII — ASSOCIATION LANDSCAPING EASEMENT
Section 13.01. Creation of Landscaping Easements; Association Responsibility. The
Declarant hereby grants the Association certain variable width and 6' landscaping
maintenance easements within those certain areas labeled and designated as "New Variable
Width Landscape Maintenance Easement" and "New 6' Landscape Maintenance Easement Offset
from R/W" on the Plat ("Landscaping Easements"). The Landscaping Easements shall remain
undisturbed and trees/bushes located within the Landscaping Easements shall be preserved in
accordance with the terms set forth herein. The Association shall be responsible for the
maintenance of the Landscaping Easements upon the terms set forth within this Article XIII.
Section 13.02. Tree/Bush Removal and Replacement Procedure. No person(s) or entities)
shall remove any standing trees/bushes contained within the Landscaping Easements, unless
otherwise permitted herein. The Association may remove certain tree(s)/bush(es) within the
Landscaping Easements upon obtaining prior written consent from Albemarle County or its duly
authorized department (the "County"). If one or more trees/bushes within the Landscaping
Easements need to be removed for appropriate reasons (diseased or dying, control of invasive
species, safety hazard to structures, etc.), then the Association shall make written request for said
removal of trees/bushes to the County and accompany such request with a certified arborist report,
as applicable. If required by the County, the Association shall promptly replant tree(s)/bush(es)
in any location where tree(s)/bush(es) have been removed in conformity with this Article XIII.
Section 13.03. Cost Allocation; Right to Reimbursement. The costs to remove and replant
any trees/bushes located within the Landscaping Easements, regardless of whether such
trees/bushes are located within any of the Open Space areas or within any individual Lots areas
shown on the Plat, shall be home by the Association and shall be funded and paid by either
Community Assessments (regular or special) or Community Reserve Fund Assessments (regular
or special). The costs to remove and replant any trees/bushes within the Landscaping Easements,
where such trees/bushes are also located within one or more Lots) of Owner(s), shall be initially
borne by the Association, but the Association shall be entitled to reimbursement from such Lot
Owner(s), as reasonably determined by the Board. Such reimbursement shall be paid to the
Association by the Lot Owner(s) within thirty (30) days after the receipt by said Lot Owner(s) of
the Association's written notice and invoice therefor.
Section 13.04 Amendment. Notwithstanding Section 16.03 below, or any other provision
herein, this Article may not be amended without the prior written consent of the County.
ARTICLE XIV — RETAINING WALL EASEMENTS
Section 14.01. Creation of Retaining Wall Easements; Association Responsibility. The
Declarant hereby grants the Association certain retaining wall easements within those certain areas
labeled and designated as "New Variable Width Wall and Maintenance Easement" and "New 18'
Wall and Maintenance Easement" on the Plat ("Retaining Wall Easements"). The Retaining Wall
Easements shall remain undisturbed and the dirt and retaining walls located within the Retaining
Wall Easements shall be preserved in accordance with the terms set forth herein. The Association
shall be responsible for the maintenance, removal and replacement of the retaining walls located
Page 28 of 36
within the Retaining Wall Easements upon the terms set forth within this Article XIV.
Section 14.02. Retaining Wall Removal, Maintenance and Replacement Procedure. No
person(s) or entit(ies) shall remove any standing retaining walls contained within the Retaining
Wall Easements, unless otherwise permitted herein. The Association may remove certain retaining
walls and associated dirt within the Retaining Wall Easements. If one or more retaining walls
within the Retaining Wall Easements need to be removed for safety or general structural reasons
(as solely determined by the Association), then the Association shall promptly cause the
replacement of such retaining walls.
Section 14.03. Cost Allocation. The costs to remove, Maintain, repair and/or replace any
retaining walls within the Retaining Wall Easements, regardless of whether such retaining walls
are located within any of the Open Space areas or within any individual Lots areas shown on the
Plat, shall be home by the Association and shall be funded and paid by either Community
Assessments (regular or special) or Community Reserve Fund Assessments (regular or special).
Section 14.04. Amendment. Notwithstanding Section 16.03 below, or any other provision
herein, this Article may not be amended without the prior written consent of Albemarle County.
ARTICLE XV
EXISTING CEMETERIES
Contained with Open Space E and Open Space G are two pre-existing cemeteries, each
designated and labeled on the Plat as "Existing Cemetery" (defined herein as the "Existing
Cemeteries"). To clarify and confirm, the Association shall be responsible for the Maintenance
and upkeep of the Existing Cemeteries, and the Lot Owners may be separately assessed for such
upkeep pursuant to Community Assessments (regular or special) and/or Community Reserve Fund
Assessments (regular or special). To clarify and confirm, the family members and descendants of
any deceased persons buried within either Existing Cemetery shall have the right to access such
burial location, pursuant to and so long as consistent with Section 57-27.1 of the Virginia Code,
as the same may be amended from time to time.
ARTICLE XVI — GENERAL PROVISIONS
Section 16.01. Managing Agent. The Board may employ and pay a managing agent, who
may be an affiliate of Declarant, to manage the affairs of Association ("Managing Agent"). The
Managing Agent shall be employed and compensated for its services and costs pursuant to a written
contract with a term not to exceed one (1) year, which contract shall provide for termination by
either party without cause and without payment of termination fee on no more than ninety (90)
days' written notice.
Section 16.02. Severability. Invalidation of any one or more of the provisions of this
Declaration by judgment, court order, or otherwise, shall in no way affect any other provision,
which shall remain in full force and effect.
Section 16.03. Amendments and Supplements. Until the last Lot is sold by the Declarant,
Page 29 of 36
this Declaration may be amended in whole or in part by recorded instrument bearing the signature
of the Declarant. Thereafter, this Declaration may be amended or rescinded by an affirmative vote
of Owners of record representing seventy five percent (75%) of all Lots then subject to this
Declaration; provided, however, that any such amendment shall be subject to the approval or
disapproval by the Declarant as set forth in Section 11.01 hereof. This Declaration may otherwise
be amended to address corrective matters pursuant to the Code of Virginia Section 55.1-1830.
Section 16.04. Gender: Singular/Plural. As used in this Declaration, the masculine gender
shall include the feminine and neuter, and vice versa, and the singular shall include the plural, and
vice versa, whenever appropriate.
Section 16.05. Duration. The covenants and restrictions of this Declaration shall run with
and bind the land commencing on the date that this instrument is first recorded and continuing for
a term of thirty-five (35) years thereafter, and shall be automatically renewed for successive
periods often (10) years each, unless modified, amended or rescinded as provided in Section 16.03.
Section 16.06. Personal Property and Real Property for Common Use. The Association
may acquire, hold, and dispose of tangible and intangible personal property and real property,
subject to the requirements of this Declaration. The Board, acting on behalf of the Association,
will accept any real or personal property, leasehold or other property interests within the Property
conveyed to it by the Declarant.
Section 16.07. Limitation of Liability. The Association and/or its Managing Agent shall
not be liable for any failure of any services to be obtained by the Association or paid for out of the
Assessments, or for injury or damage to persons or property caused by the elements or resulting
from water which may leak or flow from any portion of the Common Area, or from any
improvements, facilities, wires, pipes, drains, conduits or the like. Neither the Association, nor its
Managing Agent, shall be liable to any Member for loss or damage, by theft or otherwise, of
articles which may be stored on or about the Common Area. No diminution or abatement of
Assessments, as herein elsewhere provided for, shall be claimed or allowed for inconvenience or
discomfort arising from the making of repairs or improvements to the Common Area, or from any
action taken by the Association to comply with any of the provisions of this Declaration or with
any law or ordinance or with the order or directive of any municipal or other governmental
authority.
Section 16.08. Enforcement. The Association, its Managing Agent, any Owner, or any
Mortgagee of any Lot shall have the right to enforce, by any proceeding at law and/or in equity,
all restrictions, conditions, covenants, reservations, easements, liens, charges or other obligations
or terms now or hereafter imposed by the provisions of this Declaration or the Articles or Bylaws
of the Association or any rule or regulation promulgated by the Association pursuant to its
authority as provided herein or in the Articles or Bylaws or rules and regulations of the Association
(together, the "Project Documents"). Failure by the Association or by any Owner or by any
Mortgagee of any Lot to enforce any covenant or restrictions contained in the Project Documents
shall in no event be deemed a waiver of the right to do so thereafter. There is hereby created and
declared to be a conclusive presumption that any violation or breach or attempted violation or
breach of any of the within covenants, conditions or restrictions or any provision of the Bylaws or
the Articles cannot be adequately remedied by action at law or exclusively by recovery of damages.
Page 30 of 36
If the Association, any Owner, or any Mortgagee of any Lot, successfully brings an action to
extinguish a violation or otherwise enforce the provisions of the Project Documents, the costs of
such action, including legal fees, shall become a binding, personal obligation of the Owner
committing or responsible for such violation, and such costs shall also be a lien upon the Lot of
such Owner, provided that the requirements of applicable laws are complied with. Without
limiting the generality of the foregoing, and in addition to any other remedies available, the
Association, after reasonable written notice provided to the Owner, may enter any Lot to remedy
any violation of the provisions of the Project Documents; provided, however, that the Association
may not enter the interior of any dwelling except in an emergency. The costs of such action shall
become a binding, personal obligation of the Owner otherwise responsible for such violation and
shall also be a lien upon the Lot of such Owner.
Section 16.09. Monetary Charges. In addition to the methods of enforcement provided for
elsewhere herein, the Association shall have the right to levy monetary charges against an Owner
or guests, lessees or invitees thereof at such Owner's Lot, in the manner set forth herein, and such
monetary charges shall be collectible as any other Assessment such that the Association shall have
a lien against the Lot of such Owner as provided in this Declaration, the Bylaws, the Articles or
any other of the rules and regulations of the Association, and such monetary charge shall also
become the binding personal obligation of such Owner.
(a) The Board shall be charged with determining where there is probable cause
that any of the provisions of this Declaration, the Bylaws, the Articles or the rules and regulations
of the Association, regarding the use of a Lot or the Common Area or other Association property,
are being or have been violated. In the event that the Board or the Architectural Review Board
determines that such a violation exists, the Board shall provide written notice to the person alleged
to be in violation, and the Owner of the Lot if such person is not the Owner, of the specific nature
of the alleged violation. The notice shall also specify, and it is hereby provided, that each
recurrence of the alleged violation or each day during which it continues shall be deemed a separate
offense, subject to a separate monetary charge not to exceed Twenty -Five Dollars ($25.00) for
each offense.
(b) A monetary charge pursuant to this Section shall be assessed against the Lot
which the violator occupied or was visiting at the time of the violation, whether or not the violator
is an Owner of that Lot, and shall be collectible in the same manner as any other Assessment,
including by the Association's lien rights as provided in this Declaration and the Bylaws.
(c) Nothing herein shall be construed as a prohibition of or limitation on the
right of the Association to pursue any other means of enforcement of the provisions of this
Declaration, the Bylaws, the Articles or any of the other rules and regulations, including, but not
limited to, legal action for damages or injunctive relief.
Section 16.10. Additional Rights of Mortgagees. Anything contained herein or in the
Articles or Bylaws of the Association to the contrary notwithstanding and so long as there remains
outstanding any Institutional Mortgage on any Lot, the Declarant and the Association, for itself
and each Owner, hereby agree that the properties shall be bound by the following covenants,
conditions and restrictions:
Page 31 of 36
(a) Upon request and provided the Association is given a proper notice address,
all Mortgagees who hold a First Mortgage on any Lot shall be entitled to timely written notice of:
(i) any condemnation or casualty loss that affects either a material portion of any Common Area
or the Lot securing its Mortgage; (ii) any sixty (60) day delinquency in the payment of Assessments
or charges owed by the Owner of the Lot on which it holds the Mortgage; and (iii) any lapse,
cancellation or material modification of any insurance policy maintained by the Association. Any
failure to give any such notice shall not affect the validity or priority of any Mortgagee holding a
First Mortgage on any Lot and the protection extended in this Declaration to the holder of any such
mortgage shall not be altered, modified or diminished by reason of such failure. The Board may
adopt standards, procedures and rules for providing such notice, including establishing reasonable
fees.
(b) Any First Mortgagee of any Lot may, jointly or singly, pay any taxes, utility
charges or other charge levied against any Common Area which are in default and which may or
have become a charge or lien against all or any portion of the Common Area and any such First
Mortgagee may pay any overdue premiums on any fire and hazard insurance policy or secure new
fire and hazard insurance coverage on the lapse of any policy, with respect to the Common Area.
Any First Mortgagee who advances any such payment shall be due immediate reimbursement of
the amount so advanced from the Association.
(c) Any First Mortgagee who comes into possession of a Lot pursuant to the
remedies provided in a Mortgage, foreclosure of a Mortgage, or deed (or assignment) in lieu of
foreclosure, shall take the property free of any claims for unpaid Assessments or charges resulting
from reallocation of such Assessments or charges to all Lots including the mortgaged Lot.
(d) Upon reasonable request mortgagee of a First Mortgage shall have the right
to examine the books and records of the Association.
[Signatures on the following page]
Page 32 of 36
IN WITNESS WHEREOF, the Declarant has caused this Declaration to be executed on
its behalf by its duly authorized manager.
DECLARANT:
BERKMAR DEVELOPMENT LLC,
a Virginia limited liability company
By:
Andrew G. Baldwin, Manager
Ed Bailey, Manager
COMMONWEALTH OF VIRGINIA,
CITY / COUNTY OF _ to wit:
The foregoing instrument was acknowledged before me this _ day of
2021 by Andrew G. Baldwin, in his capacity as Manager for BERKMAR DEVELOPMENT LLC,
a Virginia limited liability company.
My commission expires:
COMMONWEALTH OF VIRGINIA,
CITY / COUNTY OF
Notary Public
to wit:
The foregoing instrument was acknowledged before me this _ day of , 2021
by Ed Bailey in his capacity as Manager for BERKMAR DEVELOPMENT LLC, a Virginia
limited liability company.
My commission expires:
Notary Public
Page 33 of 36
II:\\[1ZKIJ N.`3 Wh 0] am 1 DJOIR111[92tTl
The undersigned hereby acknowledge and consent to the recordation of the foregoing Declaration
of Covenants, Conditions and Restrictions for Berkmar Overlook (the "Declaration") and to the
imposition of the covenants, conditions and restrictions set forth therein upon the Property and
expressly acknowledge and agree that the lien, operation and effect of the deed(s) of trust recorded
for the benefit of each of the undersigned is hereby made subordinate to this Declaration and any
amendment. The undersigned have joined herein solely for the purposes set forth above and for
no other or further purposes whatsoever. The undersigned expressly disclaim any liability or
obligation whatsoever with regard to the preparation, drafting, substance or content of this
Declaration.
ESSEX BANK
By:
Its:
COMMONWEALTH OF VIRGINIA
CITY/COUNTY OF , to -wit:
The foregoing instrument was acknowledged before me this _ day of
2021, by I in his capacity as of
Essex Bank, on behalf of Essex Bank.
My commission expires:
Notary Public
[Additional Lien Holder Acknowledgement and Consent on the following page]
Page 34 of 36
NVR, INC.,
a Virginia corporation
Its:
COMMONWEALTH OF VIRGINIA
CITY/COUNTY OF , to -wit:
The foregoing instrument was acknowledged before me this _ day of ,
2021, by in his capacity as of NVR, Inc., on
behalf of NVR, Inc.
My commission expires:
Notary Public
Page 35 of 36
EXHIBIT "A"
Property Description — Plat Recorded Herewith
[see attached]
Page 36 of 36