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HomeMy WebLinkAboutSUB202100036 Correspondence 2022-01-25 (3)DRAFT l a "2031 1 /6/2022 DECLARATION OF COVENANTS AND RESTRICTIONS OF Prepared by: Lori IT Schweller, VSB #42399 After Recording Return To: Williams Mullen 321 East Main Street Suite 400 Charlottesville, Virginia 22902 Tax Map Parcel Numbers: 07600-00-00-051AO (Phase I) 09000-00-00-OOIAO (Phase I) 090A1-00-00-OOIE0 (Phase 1) 090A1-00-00-OO1DO (Phase I and Additional Area) 090AO-00-00-OO1CO (Additional Area) 090AO-00-00-00400 (Additional Area) Page 1 of 9354 DRAFT 1 vnm 1 1 /6/2022 DECLARATION OF COVENANTS AND RESTRICTIONS OF SOUTHWOOD COMMUNTFV TABLE OF CONTENTS Page ARTICLE I DECLARATION; PURPOSE Section1.1. Declaration........................................................................................................ 7 Section1.2. Purpose.............................................................................................................. 7 ARTICLE H DEFBJITIONS.......................................................................................................... 8 Section 2.1. "Additional Area.............................................................................................. 8 Section 2.2. "Affordable Housing......................................................................................... 8 Section 2.3. "Annual Assessment'........................................................................................ 8 Section 2.4. "Architectural Review Board............................................................................ 8 Section2.5. "Articles........................................................................................................... 8 Section2.6. "Association.....................................................................................................9 Section 2.7. "Block" or `Blocks.. ......................................................................................... 9 Section2.8. `Builder............................................................................................................9 Section2.9. `Bylaws............................................................................................................. 9 Section 2.10. "Clerks' Office.................................................................................................. 9 Section2.11. "Code of Development.....................................................................................9 Section 2.12. "Commercial Association'................................................................................ 9 Section 2.13. "Commercial Declaration................................................................................. 9 Section 2.14. "Common Area.............................................................................................. 10 Section 2.15. "Condominium................................................................................................ 1 I Section 2.16. "Condominium Act........................................................................................ 11 Section 2.17. "Condominium Association........................................................................... 11 Section 2.18. "Condominium Declaration'........................................................................... 11 Section2.19. "County ........................................................................................................... 12 Section 2.20. "Declaration................................................................................................... 12 Section2.21. "Declarant...................................................................................................... 12 Section 2.22. "Declarant Control Period............................................................................... 12 Section 2.23. "General Assessments.................................................................................... 12 Section 2.24. "Governing Documents.................................................................................. 12 Section 2.245. "Habitat Lots".........................................._..................................................... 12 Section 2.236. "Improvement................................................................................................ 12 Section2.267. "Land'.............................................................................................................. 12 Section 2.278. "Limited Common Area......................................................................... 13�^ Section2.299. "Lot............................................................................................................ 13 Page 2 of 9389 DRAFT 12fF20211/6/2022 Section2.2-930. "Member"...................................................................................................13 Section 2.301. `Neighborhood".............................................................................................. 13 Section 2.342. "Neighborhood Assessment".................................................................. 14444-3 Section 2.323. "Neighborhood Common Area"............................................................. 144443 Section2.334. "Occupant"...................................................................................................... 14 Section2.345. "Owner".......................................................................................................... 14 Section 2.356."Parcel"................................................................................................... 151J44 Section 2.367. "Parcel Developer"..................................................................................... 15 Section 2.378. "Performance Agreement".............................................................................. 15 Section2.349. "Person".......................................................................................................... 15 Section 2.4940. "Phase I"..................................................................................................... 15 Section 2.401. "Proffers"................................................................................................ 1646I3 Section2.442. "Property"....................................................................................................... 16 Section 2.423. "Rezoning Application Plan".......................................................................... 16 Section 2.434. "Supplemental Declaration"........................................................................... 16 Section 2.445. "Virginia Code".............................................................................................. 16 Section 2AW "Zoning Map Amendment" or "ZMA 2018-0003.. .................................... 1746 Section 2.467. "Zoning Ordinance"................................................................................ 17T744 ARTICLE III ADDITIONS TO THE PROPERTY..................................................................... 17 Section 3.1. Additional Area............................................................................................... 17 Section 3.2. Right to Subject Additional Area to Declaration .................................... 184847 Section 3.3. Additional Provisions.................................................................................. 18 Section 3.4. Power Not Exhausted by One Exercise, Etc ................................................... 19 Section 3.5. Development of Additional Area............................................................ 20204-9 Section3.6. Withdrawal.................................................................................................. 20 Section3.7. Master Plan ..................................................................................................... 20 Section 3.8. Additions by Association................................................................................ 21 ARTICLE IV OWNERS ASSOCIATION................................................................................... 23 Section4.1. Membership.................................................................................................... 23 Section 4.2. Classes of Membership........................................................................... 242423 Section4.3. Voting Rights.................................................................................................. 24 Section 4.4. Suspension of Voting Rights.......................................................................... 25 Section 4.5. Articles and Bylaws to Govern; Property Owners' Association Act .............. 25 Section4.6. Neighborhoods................................................................................................ 26 ARTICLE V COMMON AREA.................................................................................................. 27 Section 5.1. Obligations of the Association........................................................................ 27 Section 5.2. Owners' Rights of Enjoyment and Use of Common Areas ............................. 29 Section 5.3. Owners' Rights of Enjoyment and Use of Neighborhood Common Areas.... 30 Section 5.4. Limited Common Areas.................................................................................. 31 Page 3 of 9384 DRAFT 12AQ021.1/6/2022 Section 5.5. General Limitations on Owners' Rights ...................................................... 3332 Section 5.6. Delegation of Use........................................................................................... 35 Section 5.7. Damage or Destruction of Common Area, Limited Common Area or Neighborhood Common Area by Owner ........................................................ 35 Section 5.8. Rights in Common Areas, Limited Common Areas and Neighborhood Common Areas Reserved by Declarant and/or a Parcel Developer ............... 36 Section 5.9. Title to Common Area, Limited Common Area and Neighborhood Common Area................................................................................................................ 36 Section 5.10. Reservation of Rights Regarding Common Area, Limited Common Area and Neighborhood Common Area......................................................................... 37 ARTICLE VI ASSESSMENTS 38 Section 6.1. Creation of the Lien and Personal Obligation for Assessments ..................... 38 Section 6.2. Purpose of Assessments.................................................................................. 39 Section 6.3. Annual Assessments....................................................................................... 40 Section 6.4. Special Assessments....................................................................................... 45 Section 6.5. Date of Commencement of Annual Assessments ........................................... 45 Section 6.6. Effect of Nonpayment of Assessments; Remedies of Association ................. 46 Section 6.7. Subordination of Lien to Mortgages....................................................... 474746 Section 6.8. Exempt Property ..................................................................................... 474746 Section6.9. Annual Budget................................................................................................ 47 Section 6.10. Capital Contribution........................................................................................ 47 Section 6.11. Loans by Declarant......................................................................................... 48 ARTICLE VII ARCHITECTURAL CONTROL................................................................. 494949 Section 7.1. Architectural Review Board................................................................... 494949 Section 7.2. Plans to be Submitted.............................................................................. 505049, Section 7.3. Consultation with Architects, etc.................................................................... 51 Section7.4. Approval of Plans........................................................................................... 51 Section 7.5. No Structures to be Constructed, etc. Without Approval ....................... 525231- Section 7.6. Guidelines May Be Established.................................................................. 5352 Section 7.7. Limitation of Liability ..................................................................................... 53 Section 7.8. Other Responsibilities of Architectural Review Board .......................... 545433 ARTICLE Vill USE OF PROPERTY.................................................................................. 545433 Section 8.1. Protective Covenants..................................................................... ......... 545453 Section 8.2. Maintenance of Property ............................................................................. 69 Section8.3. Security ........................................................................................................... 70 Section 8.4. Conveyance to the County or Commonwealth ....................................... 7174-79 Section 8.5 Special Exterior Maintenance Provisions for Habitat Lots.......... ..............__. 71 Page 4 of 9384 DRAFT 12AQ031.1/6/2022 ARTICLE IX EASEMENTS................................................................................................ 727270 Section 9.1. Utility Easements.................................................................................... 727270 Section 9.2. Erosion Control....................................................................................... 737374 Section 9.3. Maintenance of Lots and Parcels............................................................ 747372 Section 9.4. Construction Easements and Rights........................................................ 747473 Section 9.5. Right of Entry for Governmental Personnel ........................................... 757473 Section 9.6. Easement for Landscaping, Signs and Related Purposes ........................ 757573 Section 9.7. Sight Distance Easements....................................................................... 757574 Section 9.8. Retaining Wall Easements...................................................................... 767674 Section 9.9. Access Easements................................................................................... 767674 Section 9.10. Easement for Use of Water Bodies and Irrigation .................................. 797875 Section 9.11. Easement for Encroachment................................................................... 7979% Section 9.12. Easements to Serve Additional Area ...................................................... 807976 ARTICLE X GENERAL PROVISIONS..........................__......................_........................ 818077 Section 10.1. Duration.................................................................................................. 818077 Section 10.2. Amendments........................................................................................... 818077 Section10.3. Enforcement............................................................................................ 82" Section 10.4. Limitations.............................................................................................. 838274 Section 10.5. Severabdity............................................................................................. 83827-4 Section10.6. Conflict................................................................................................... 83" Section 10.7. Interpretation........................................................................................... 838380 Section 10.8. Use of the Words "Southwood" or "Southwood Community... .............. 848380 Section 10.9. Approvals and Consents......................................................................... 848380 Section 10.10. Assignment of Declaranfs Rights........................................................... 848380 Section 10.11. Successors and Assigns........................................................................... 848380 Section 10.12. Compliance with Property Owners' Association Act ............................. 848484- ARTICLE XI DISSOLUTION OF THE ASSOCIATION .................................................. 8484$4- ARTICLE XB NOTICES..................................................................................................... 858481 EXHIBIT A (Legal Description)...................................................................................................81 EXHIBIT B (Subdivision Plat) ................... ................. ......................................... ......... ......... ....... 83 EXHIBIT C (Additional Land) .................................. ........................................ .................. ........ 84 Page 5 of 93N DRAFT 12N-202I1/6/2022 DECLARATION OF COVENANTS AND RESTRICTIONS OF SOUTHWOOD COMMUNITY THIS DECLARATION OF COVENANTS AND RESTRICTIONS (`this Declaration") is made this _ day of 2022b1 by SOUTHWOOD CHARLOTTESVILLE, LLC, a Virginia limited liability company ("Declarant') having an address of 967 2nd Street SE, Charlottesville, VA 22902 [index as "Grantor" and "Grantee" for recording purposes]. RECITALS A. The Declarant is the owner of that certain real property located in Albemarle County, Virginia, described more particularly on Exhibit A, and shown and identified on that certain subdivision plat entitled, "PLAT OF SUBDIVISION, SOUTHWOOD VILLAGE 1, PORTIONS OF BLOCKS 3, 4, 5, 7, AND 8, LOTS IA -ID, 2A-2B, 3-5, 6A-6E, 7A-711, 8-34, 35A-35C, 36A-36D, 37-38, 39A-39C, & SPECIAL LOT 40 ON THE LANDS OF SOUTHWOOD CHARLOTTESVILLE, LLC, TAX MAP PARCELS 90-1A AND 90A1-1E, SCOTTSVILLE MAGISTERIAL DISTRICT, ALBEMARLE COUNTY, VIRGINIA," dated July 9, 2021, last revised prepared by Timmons Group (the "Subdivision Plat"), attached hereto and incorporated herein as Exhibit B (the "Property"). B. The Declarant desires to develop the Property as an integrated mixed -use, mixed - income community that may include non-residential and mixed -use development along with a variety of housing types, including multi -family, townhome, single-family attached and detached, accessory, and condominium units. Page 6 of 9389 DRAFT' -12FF2021.1/6/2022 C. By executing and recording this Declaration, the Declarant establishes certain covenants, restrictions, easements, and other terms and conditions applicable to the development, ownership, and use of the Property and submits the Property to the provisions of this Declaration, D. Declarant reserves the right to submit, from time to time, after the recordation of this Declaration, all or any portion of the real property identified and described on Exhibit C (the "Additional Land") to the provisions of this Declaration. Upon submission of all or any portion of the Additional Land to the provisions of this Declaration, such Additional Land shall become part of the Property that is subject to this Declaration. E. Declarant contemplates that certain portions of the Property may be subject to additional or supplemental declarations in addition to this instrument for the purpose of establishing certain additional or different covenants, easements and restrictions. ARTICLE I DECLARATION; PURPOSE Section L L Declaration. The Declarant hereby declares that the Properly is and shall be held, transferred, sold, conveyed and occupied subject to the covenants, restrictions, easements, charges and liens set forth in this Declaration. This Declaration shall run with the Property and every part thereof and shall be binding upon and inure to the benefit of all Owners (as hereinafter defined), lessees, licensees, Occupants (as hereinafter defined) and their successors and assigns as set forth in this Declaration. Section 1.2. Purpose. It is the purpose of this Declaration to create an integrated multi- family and single-family residential / non-residential project of high quality known as Southwood, to assure the orderly and attractive development of the Property in an efficient and harmonious manner, to preserve and enhance property values, amenities and opportunities within the Property, Page 7 of 9389 DRAFF -12AQ0211/612022 to promote the health and safety of the Occupants and to maintain a harmonious relationship among the structures and the natural vegetation and topography thereon. This Declaration is designed to complement the Zoning Ordinance (as hereinafter defined) and other Laws (as hereinafter defined), and where conflicts occur, the more restrictive requirement shall prevail. ARTICLE II DEFINITIONS Section 2.1. "Additional Area" shall have the meaning set forth in Section 3.1 of this Declaration. Section 2.2. "Affordable Housing" shall mean a dwelling for which housing costs do not exceed Thirty Percent (30%) of the gross household income of a household earning not more than Eighty Percent (80%) of the Charlottesville, VA HUD Metro FMR Area Median Income. For purposes ofthis definition, "housing costs" for homeowners are principal, interest, real estate taxes, and homeowner's insurance, and for tenants are rent and tenant -paid utilities with the maximum allowances for utilities being those adopted by the County's housing office for the Housing and Urban Development housing choice voucher program. This definition is provided solely for the purpose of the assessment exemptions allowed for undeveloped lots. Section 2.3. "Annual Assessment" shall have the meaning set forth in Section 6.3 of this Declaration. Section 2.4. "Architectural Review Board" shall have the meaning set forth in Section 7.1 of this Declaration. Section 2.5. "Articles" means the Articles of Incorporation of Southwood Community Association, as the same may be amended from time to time. Page 8 of 9389 DBAFr 12AF2021-1/6/2022 Section 2.6. "Association" means the Southwood Community Association, a Virginia nonstock corporation, its successors and assigns. Section 2.7. "Block" or `Blocks" means one or more of those areas shown and identified as Blocks 1 through 12 in the Code of Development. Land use, density regulations, and built form characteristics in Southwood Phase I are governed by blocks. Section 2.8. `Builder" means and refers to a person or entity which acquires a portion of the Property for the purpose of improving such portion for resale to Owners or for lease to tenants. Section 2.9. "Bylaws" means the Bylaws of Southwood Community Association, as the same may be amended from time to time. Section 2.10. "Clerks' Office" means the Clerk's Office of the Circuit Court for the County of Albemarle, Virginia, Section 2.11. "Code of Development" means that certain Code of Development, entitled, "Southwood Phase I, A Neighborhood Model District," dated February 20, 2018, last revised July 29, 2019, associated with the Zoning Map Amendment approved by the Board of Supervisors for Albemarle County on August 21, 2019, as such code of development may be amended or restated. Section 2.12. "Commercial Association" means a non -stock corporation formed as an owners association to govern and manage the affairs of certain Lots within the Property used for non-residential purposes. Section2.13. "Commercial Declaration" means a Supplemental Declaration which may be recorded in the Clerk's Office, submitting Lots governed by a Commercial Association to Page 9 of 9389 DRAFT' 12AL20211/612022 certain additional covenants, restrictions and easements, as such declaration and exhibits thereto may be amended from time to time pursuant to the terms thereof. Section 2.14. "Common Area" means: (i) real estate and/or easements specifically designated as "Common Area" or "Common Area Easement" on recorded plats of the Property, in any Supplemental Declaration or in any amendment to this Declaration or in any other instrument executed by Declarant and recorded in the Clerk's Office and intended to be conveyed (by deed, plat dedication or easement) to and accepted by the Association; (it) the portions of the Property, if any, designated for "open space," "buffer zones," "scenic easements," "natural open space area," "conservation areas," "tree preservation areas," "landscape easement," "trail easement" and'BMP" or similar purposes on recorded plats of the Property and conveyed (by deed, plat dedication or easement) to and accepted by the Association; and (iii) all other real property, easements, and improvements or facilities now or hereafter owned by the Association which are intended to be devoted to the common use and enjoyment of the Owners and such non -Owners, if any, who have been authorized to use such Common Area pursuant to Sections 5.2 and/or 5.6 hereof The Common Area includes or may in the future include, without limitation, certain streets which are not dedicated to the public, certain alleyways and access drives providing access to and from residential Lots and Parcels, entrance signs and entry features, landscaping easements, certain fencing, medians located within or adjacent to streets within the Property, certain parks and open space areas, one or more storm water detention ponds or MMP's," community center(s), sport fields, playgrounds, areas set aside for pedestrian and/or bicycle paths and sidewalks, and other recreational facilities. Portions of the Common Area may be designated by the Declarant pursuant to Section 5.4 hereof as "Limited Common Areas" for the exclusive use of one or more but less Page 10 of 9389 DRAFT' -12AL20211/612022 than all of the Owners and such non -Owners, if any, who have been authorized to use such Limited Common Area pursuant to Sections 5.2 and/or 5.6 hereof. Also, certain Parcels and/or Neighborhoods may include open space areas, easements and facilities which are intended to be maintained privately either by private ownership or by separate associations and which will not be designated as Common Area, Limited Common Area or Neighborhood Common Area and will not be maintained by the Association. Subject to the requirements of Section 5.9 hereof, Declarant or a Parcel Developer, as applicable, may retain legal title to Common Areas, Neighborhood Common Areas or Limited Common Areas, as the case may be for the time specified in Section 5.9 hereof in accordance with the Zoning Ordinance, all Common Areas, Limited Common Areas and Neighborhood Common Areas will be owned by either (i) the Declarant or a Parcel Developer for future conveyance to the Association as provided in Article V hereof; or (ii) the Association. Section 2.15. "Condominium" means any portion of the Property subjected to the provisions of the Condominium Act by virtue of a Condominium Declaration. Section 2.16. "Condominium Act" means the Virginia Condominium Act, as in effect on the date the Condominium Declaration is filed in the Clerk's Office, as such Act may be amended from time to time. Section 2.17. "Condominium Association" means the non -stock corporation or other entity that administers the affairs of a Condominium. Section 2.18. "Condominium Declaration" means the Declaration of Condominium which shall be recorded in the Clerk's Office, submitting a Condominium to the condominium form of ownership pursuant to the Condominium Act, together with all exhibits to the Page 11 of 9389 DRAFT -12AQ0211/6/2022 Condominium Declaration, as such Condominium Declaration and exhibits thereto may be amended from time to time pursuant to the terms thereof. Section 2.19. "County" means Albemarle County, Virginia. Section 2.20. `Declaration' means this Declaration of Covenants and Restrictions, as the same may from time to time be supplemented or amended. Section 2.21. "Declarant" means Southwood Charlottesville, LLC, a Virginia limited liability company, which is a wholly -owned entity of Greater Charlottesville Habitat for Humanity. Section 2.22. "Declarant Control Period" means the time during which the Class B membership exists as described in Section 4.2. Section 2.23. "General Assessments" shall have the meaning set forth in Section 6.3 of the Declaration. Section 2.24. "Governing Documents" means the Articles, the Bylaws, this Declaration and any Supplemental Declaration, as the same may be amended or supplemented from time to time. Section 2.25. abitat Lots" means those Lots and Parcels shown on the subdivision olat� - - Fo atted: Heading 2 Fp atted: Font: Bold or on a separate exhibit on which Habitat will construct one or more affordable dwellings for sale or rent pursuant to a Habitat ro opram. Section 2.25.Section 2.26. "Improvement" shall have the meaning set forth in section 7.2 of this Declaration. Section 2.26.Section 2.27. "Land" means real property together with any and all improvements thereon and appurtenant thereto belonging. Page 12 of 9389 DRAFT 42AQ0311/6/2022 Section 2.27. Section 2.28. "Limited Common Area" means a portion of the Common Area or the Neighborhood Common Area designated pursuant to Section 5.4 hereof for the primary use of one or more but less than all of the Owners and such non -Owners, if any, who have been authorized to use such Limited Common Area pursuant to Sections 5.1, 5.2 and/or 5.6 hereof. Section 2.28.Section 2.29. "Lot' means any lot which is shown on a recorded subdivision plat (or any subsequently recorded subdivision plat) of any portion of the Property subject to this Declaration or, with respect to condominiums, a governmentally approved site plan, and on which is constructed or is to be constructed (i) a single family, detached residence; (ii) a townhouse; (iii) a zero lot line residence or attached single-family residence; or (iv) any condominium unit within a condominium created pursuant to the Condominium Act of Virginia, Section 55.1-1900 et seq. of the Virginia code, as the same may be amended from time to time. The term "Lot' shall not include any portion of the Property which at the time in question is not included in a recorded subdivision plat of any portion of the Property, or with respect to condominiums, a governmentally approved site plan, nor shall "Lot' include Common Areas, Neighborhood Common Areas, Limited Common Areas, public streets or property dedicated to and accepted by a public authority. Section 2.29.Section 2.30. "Member" means every person or entity who holds membership in the Association. Section 2.30. Section 2.31. "Neighborhood" means one (1) or more Lots that have been designated as a "Neighborhood" as provided in the applicable Supplemental Declarations) to which the Lot has been subjected. An example of a Neighborhood is a Condominium established within the Property. Page 13 of 9389 DlRAFr 42FF20211/6/2022 Section 2.31.Section 2.32. "Neighborhood Assessment" shall have the meaning set forth in Section 6.3 of this Declaration. Section 2.32.Section 2.33. "Neighborhood Common Area" means the real property and any improvements thereon which is for the primary use and enjoyment of Owners residing in such Neighborhood and such non -Owners, if any, who have been authorized to use such Neighborhood Common Area pursuant to Sections 5.3 and/or 5.6 hereof, and which is designated as Neighborhood Common Area on the recorded plat of subdivision for the Neighborhood, or described as such in a Supplemental Declaration applicable to the Neighborhood or designated as such in an instrument executed by Declarant and recorded in the Clerk's Office. Portions of the Neighborhood Common Area may be designated by Declarant pursuant to Section 5.4 hereof as "Limited Common Areas" for the primary use of one or more but less than all of the Owners in the Neighborhood and such non -Owners, if any, who have been authorized to use such Limited Common Area pursuant to Sections 5.2, 5.3 and/or 5.6 hereof. Note: In the case of a condominium, by definition, as set out in the Virginia Condominium Act, all common element of a condominium is owned by the unit owners of the condominium and, therefore, is exempt from any provisions herein to the contrary-. Section 2.33.Section 2.34. "Occupant" means any Person who occupies and/or who is entitled to use a part of the Property as Owner, lessee, licensee or invitee, or in any other capacity other than as the beneficiary of an easement. Section 2.34.Section 2.35. "Owner" means the record holder, whether one or more persons or entities, of fee simple title to any Lot or Parcel, including contract sellers, but excluding those having such interest merely as security for the performance of an obligation. Page 14 of 9389 DRAFT' -12AL20211/612022 Section 2.35. Section 2.36. "Parcel" means any portion of the Property subdivided from the residue thereof for the purpose of either (i) resubdivision into Lots, (ii) the creation of a condominium and condominium units pursuant to the Condominium Act of Virginia, §55.1-1900 et. seq. of the Virginia Code, as the same may be amended from time to time, (iii) the development of residential apartments thereon, or (iv) the development of a mixed -use or non-residential building or group of buildings. Section 2.36.Section 2.37. `Parcel Developer" means any Person who obtains title to a Parcel for the purpose of development and sale of Lots, a condominium, a residential apartment building or buildings, or mixed -use or non-residential building or buildings. Section 2.37.Section 2.38. "Performance Agreement" means that certain agreement by and between the County of Albemarle, Virginia, the Economic Development Authority of Albemarle County, Virginia, and Habitat for Humanity, approved by the Board of Supervisors for the County of Albemarle, Virginia on June 19, 2019, as it may be amended or restated. Section 2.38.Section 2.39. "Person' means any natural person, corporation, limited liability company, joint venture, partnership, association, joint stock company, trust, unincorporated organization or government or any agency or political subdivision thereof or any other separate legal entity. "Person" shall also mean and include, without limitation, a property or condominium unit owners association. Section 2.39. Section 2.40. "Phase I" of the Property means that portion of the Property rezoned pursuant to the Zoning Map Amendment, currently known as Albemarle County Tax Map parcels 09000-00-00-OOIAO, 090A1-00-00-OOIE0, and 07600-00-00-051AO and depicted on the Rezoning Application Plan. Page 15 of 9389 DRAFT -12AL20211/612022 Section 2.40. Section 2.41. "Proffers" means the Proffer Statement, dated August 2, 2019, associated with ZMA 2018-0003, approved by the County of Albemarle Board of Supervisors on August 21, 2019, as they may be amended or restated. Section 2.4LSection 2.42. "Property" means all property currently subjected to this Declaration (referred to as "Phase I"), described with more specificity in Exhibit A, together with such other real property as may from time to time be subjected in whole or in part to this Declaration pursuant to Article III hereof as and when, if any, such real property is so subjected. Section 2.42, Section 2.43. "Rezoning Application Plan" means the plans associated with the Zoning Map Amendment, prepared by brwarchitects. P.C.. entitled, "REZONING APPLICATION PLAN FOR SOUPITWOOD REDEVELOPMENT PHASE I, MODEL," dated January 7, 2019, last revised June 24, 2019, by biwaichiteeU. anoroved by the Counri on November 2l. 2021, as thev may be amended. Section 2.43. Section 2.44. "Supplemental Declaration' shall have the meaning set forth in Section 3.3 hereof. Section 2.44.Section 2.45. "Virginia Code" shall mean the Code of Virginia (1950), as in effect on the first date of recordation of this Declaration and as amended from time to time thereafter. Except as otherwise expressly permitted herein, if any sections of the Virginia Code referred to in this Declaration are hereafter repealed or recodifred, each such reference shall be deemed to apply to the section of the Virginia Code that is the successor to the previous section referred to herein, or, if there is no successor section, such reference shall be interpreted as if the section had not been repealed. Page 16 of 9389 DRAFT' -12N30311/6/2022 Section 2.45. Section 2.46. "Zoning Map Amendment' or "ZMA 2018-0003" refers to the approved application for Zoning Map Amendment (or "rezoning') of Phase I of the Property approved by the Board of Supervisors of Albemarle County on August 21, 2018. Section 2.46.Section 2.47. `7�gQrirue governing body of the County of Albemarle, Virginia, regulating, restricting, permitting or prohibiting the use of land and the construction of Improvements thereon, and, for the purpose of this definition, shall include the conditions and provisions of any conditional use permit affecting any portion of the Property or any other government -controlled or directed process affecting any portion of the Property. Without limiting the generality of the foregoing, "Zoning Ordinance" also includes the Code of Development and the Proffers, as the same may be amended, modified, supplemented or amended and restated from time to time. Whenever the restrictions and conditions contained within this Declaration shall be stricter than those within the Code of Development, this Declaration shall prevail. ARTICLE IB ADDITIONS TO THE PROPERTY Section 3.1. Additional Area. The Property The Declarant contemplates the extension of this Declaration to the real estate described in Exhibit C hereto or portions thereof and the possible extension of this Declaration to other real estate located within a two (2) mile radius of the Property (collectively, the "Additional Area"). However, Declarant shall not be obligated to bring all or any part of the Additional Area within the scheme of development established by this Declaration, and no negative reciprocal easement shall arise out of this Declaration so as to benefit or bind any portion of the Property or the Additional Area until such portion of the Additional Area is expressly subjected to the provisions of this Declaration in accordance with Section 3.2 Page 17 of 9389 DRAFT' -12FF20211/6/2022 below and then such portion of the Additional Area shall be subject to any additions, deletions and modifications as are made pursuant to Section 3.2 and Section 3.3. Section 3.2. Right to Subject Additional Area to Declaration. Declarant reserves the right, at its discretion, at such time or times as it shall determine on or before January 1, 2045, to subject the Additional Area, or such portions thereof as Declarant shall determine, together with improvements thereon and easements, rights and appurtenances thereunto belonging or appertaining, to the provisions of this Declaration in whole or in part. Any portion of the Additional Area which is not, on or before January 1, 2045 subjected to the provisions of this Declaration in whole or in part pursuant to this Section 3.2 and thereby constituted a part of the "Property," shall cease to be Additional Area. Each of the additions authorized pursuant to this Section 3.2 shall be made by Declarants recordation in the Clerk's ice of a supplemental declaration ("Supplemental Declaration") describing the portions) of the Additional Area subjected to this Declaration. If record title to the portion of the Additional Area being subjected to the Declaration is held by any Person other than Declarant, then such Person shall join in and execute the Supplemental Declaration along with Declarant. Each Supplemental Declaration may contain such additions, deletions and modifications to the provisions of this Declaration as may be desired by Declarant. However, no negative reciprocal easement or covenant shall arise out of any additions, deletions or modifications to this Declaration made in the instruments which subject the Additional Area to this Declaration except as to the real estate expressly subject to such additions, deletions and modifications. Section 3.3. Additional Provisions. In addition to subjecting the Additional Area to this Declaration as provided in Section 3.2, Declarant may, in its discretion, execute and record one or Page 18 of 9389 DRAFT' -12AL20211/612022 more Supplemental Declarations for the purpose of establishing certain additional or different covenants, easements and restrictions (including, without limitation, a different level of assessments) applicable to a specific Neighborhood or Neighborhoods or certain specified Lots) and/or Parcel(s). In addition, any subassociation of the Association serving a specific Neighborhood, use, or unit type, such as a commercial association, homeowners association, townhouse association, or condominium association may, upon the written consent of all Owners of the Lots governed by such association, execute and record one or more Supplemental Declarations for the purpose of establishing certain additional or different covenants, easements and restrictions, (including without limitation a different level of assessments, as long as there is a reasonable justifiable basis for the same) applicable to such Lots governed by such association. However, no negative reciprocal easement or covenant shall arise out of any Supplemental Declaration so as to bind any real property not expressly subjected thereto. Section 3.4. Power Not Exhausted by One Exercise, Etc. No exercise of the power granted Declarant hereunder as to any portion of the Additional Area shall be deemed to be an exhaustion of such power as to other portion(s) of the Additional Area not so subjected to the provisions hereof or to the provisions of a Supplemental Declaration. The discretionary right of Declarant to subject the Additional Area to the provisions of this Declaration or a Supplemental Declaration is not conditioned upon or subject to the approval of other Owners and therefore the requirements set forth in Section 10.2 for amendments to this Declaration shall be inapplicable to this Article III. The failure of Declarant to extend the provisions of this Declaration to the Additional Area or any portion(s) thereof shall not be deemed to prohibit the establishment of a separate scheme of development (including provisions substantially similar or identical to those Page 19 of 9389 DRAFr -12AQ0211/6/2022 contained herein) for such portion(s) of the Additional Area to which this Declaration is not extended. Section 3.5. Development of Additional Area. The portion(s) of the Additional Area subjected to this Declaration may be developed with different housing styles, types, square footages and price ranges. Declarant makes no representation as to the housing styles, types and price ranges for current or future Parcels. The portion(s) of the Additional Area subjected to the provisions of this Declaration may contain additional Common Areas, Limited Common Areas, Neighborhood Common Areas and facilities to be owned and/or maintained by the Association. Also, the portion(s) of the Additional Area subjected to the provisions of this Declaration may be subjected to one or more declarations for separate associations, and, therefore, Owners of Lots and Parcels may also be members of such separate associations, as applicable, in addition to being members of the Association. Section 3.6. Withdrawal. Subject to the Zoning Ordinance and Performance Agreement, Declarant shall have the right, in its sole discretion, to remove from the Property any portion thereof by recording in the Clerk's Office a Supplemental Declaration describing the portion(s) to be removed from the Property; provided, however, if such portion is owned by any Person other than Declarant, then such withdrawal must be with the consent of such Person and Declarant; and provided further that, if such portion to be withdrawn includes any Common Areas, Limited Common Areas or Neighborhood Common Areas then such withdrawal must be with the prior written approval of the Director of Planning for Albemarle County. Section 3.7. Master Plan. The existence of a master development plan or conceptual plan for the Property used by Declarant in developing and/or selling the Property, and Lots and Page 20 of 9389 DRAFr -12N2A211/6/2022 Parcels therein, shall not be deemed to constitute a representation by Declarant that the real estate shown thereon shall be developed as depicted on the master plan, and the master plan may be amended from time to time in the sole discretion of Declarant and with the consent (to the extent required) of the County of Albemarle, Virginia, subject to the Zoning Ordinance and Performance Agreement. Section 3.8. Additions by Association. After the Declarant's right to unilaterally extend the Declaration to portions of the Additional Area has expired, this Declaration may be extended to any portion of the Additional Area pursuant to the following procedures: (a) Approval Required. The Association, by (i) the affirmative vote of two- thirds (2/3) or more of the directors serving on the Board of Directors of the Association and (ii) the consent in writing of the Owners of a majority or more of the Lots within the Property subject to this Declaration, may authorize the President of the Association to execute a Supplemental Declaration to extend this Declaration to all or portions of the Additional Area provided the Owner(s) of such Additional Area consent to such extension as evidenced by such Owner(s) joining in an instrument of record subjecting such real property to the covenants, liens, restrictions, easements, and other provisions of this Declaration. However, the Association shall not be obligated to bring all or any part of the Additional Area within the scheme of development established by this Declaration, and no negative reciprocal easement or covenant shall arise out of this Declaration so as to benefit or bind any portion of the Property or the Additional Area until such portion of the Additional Area is expressly subjected to the provisions of this Declaration in accordance with subparagraph (b) below and then such portion of the Additional Area shall be Page 21 of 9389 DRAFT -12FF20211/6/2022 subject to any additions, deletions and modifications as are made pursuant to subparagraph (b) below. (b) Method of Adding Additional Area to Declaration. Each of the additions authorized pursuant to this Section 3.8 shall be made by Association's recordation in the Clerk's Office of a Supplemental Declaration describing the portion(s) of the Additional Area subjected to this Declaration. Each such instrument may contain such additions, deletions and modifications to the provisions of this Declaration as may be desired by the Association. However, no negative reciprocal easement or covenant shall arise out of any additions, deletions or modifications to this Declaration made in the instruments which subject the Additional Area to this Declaration except as to the real estate expressly subject to such additions, deletions and modifications. (c) Supplemental Declarations. In addition to subjecting the Additional Area to this Declaration as provided in subparagraph (b) above, the Association may, in its discretion and in accordance with the procedures specified in subparagraph (a) above, execute and record one or more supplemental declarations (each a "Supplemental Declaration") for the purpose of establishing certain additional or different covenants, easements and restrictions (including without limitation a different level of assessments) applicable to a speck Neighborhood or Neighborhoods or certain specified Lot(s) and/or Parcel(s) within the portion(s) of Additional Area to be subjected pursuant to subparagraph (b) above. However, no negative reciprocal easement or covenant shall arise out of any Supplemental Declaration so as to bind any real property not expressly subjected thereto. (d) Power Not Exhausted by One Exercise, Etc. No exercise of the power granted Association hereunder as to any portion of the Additional Area shall be deemed to be an Page 22 of 9389 DRAFT' 12AL2021.1/612022 exhaustion of such power as to other portion(s) of the Additional Area not so subjected to the provisions hereof or to the provisions of a Supplemental Declaration. The discretionary right of the Association to subject the Additional Area to the provisions of this Declaration or a Supplemental Declaration is conditioned upon and subject to the prior approval of the Board of Directors of the Association and the required written consent of the requisite amount of Owners as set forth in subparagraph (a) and therefore the requirements set forth in Section 10.2 for amendments to this Declaration shall not apply to this Section 3.8. The failure of the Association to extend the provisions of this Declaration to the Additional Area or any portion(s) thereof shall not be deemed to prohibit the establishment of a separate scheme of development (including provisions substantially similar or identical to those contained herein) for such portion(s) of the Additional Area to which this Declaration is not extended. (e) Development of Additional Area. The portion(s) of the Additional Area subjected to the provisions of this Declaration pursuant to this Section 3.8 may contain additional Common Areas, Limited Common Areas, Neighborhood Common Areas and facilities to be owned and/or maintained by the Association. ARTICLE IV OWNERS ASSOCIATION Section 4.1. Membership. On or before the conveyance of the fast Lot or Parcel within the Property, Declarant shall establish a property owners association which shall be a non -stock corporation incorporated in the Commonwealth of Virginia for the purposes set forth herein. The Association will be governed pursuant to this Declaration, the Articles of Incorporation of the Association, the Bylaws of the Association, and the Rules and Regulations, if any, adopted by the Board of Directors with respect to the use and enjoyment of the Common Areas. Every Owner of Page 23 of 9389 DRAFT 12AQ0211/612022 a Lot, and every Owner of a Parcel, shall be a member of the Association. Membership shall be appurtenant to and shall not be separated from ownership of any Lot and/or Parcel. Upon the recordation of a deed to a Lot or a Parcel, the membership of the selling Owner shall cease and the purchasing Owner shall become a member of the Association. Section 4.2. Classes of Membership. The Association shall have two classes of voting membership: Class A. All Owners of Lots and Parcels including Declarant shall be Class A members. Class B. Declarant shall be the Class B member. The Class B membership shall terminate on the earlier of (i) the date on which Declarant ceases to own 25% of the Land (including but not limited to undeveloped Lots and Parcels) lying within the Property and the Additional Area and all of the Declarant's obligations regarding construction of roads, stormwater management / BMP facilities and Common Area amenities have been fulfilled and County performance bonds have been released; (ii) the date on which Declarant executes and records in the Clerk's Office an amendment to this Declaration terminating the Class B membership, or (iii) on January 1, 2040. The period of time during which the Class B membership exists is referred to as the "Declarant Control Period." Section 4.3. Voting Riehts. (a) Each Class A member other than Declarant shall be entitled to cast one vote for each Lot and Parcel owned. Declarant shall be entitled to cast three (3) Class A votes per Lot owned. For the limited purpose of calculating the Class A votes of Declarant, the term "Lot" shall be deemed to include residential lots and/or units which have either (i) been created by recordation of the appropriate subdivision plat(s) and/or condominium instruments, or (ii) if no such plats or Page 24 of 9389 DRAFT' d2N3021-1/6/2022 instruments have been recorded, the number of developable lots/units attributed to the portions of the Property and Additional Area owned by Declarant. (b) Declarant as the Class B member shall be entitled to cast the Class B vote. (c) Notwithstanding subsection (a) above, if a Parcel or Lot is developed for residential apartment use, mixed -use development, or non-residential use the Owner thereof shall be entitled to cast the greater of (i) One (1) vote or (ii) the product of One (1) Class A vote per 10,000 aggregate gross square feet of the building(s) on the Lot or Parcel. If such product is other than a whole number, the product shall be rounded to the nearest whole number. Section 4.4. Susuension of VotingRights. iehts. The Board of Directors of the Association may suspend the voting rights of any Member subject to assessment under this Declaration during the period when any such assessment shall be delinquent, but, upon actual receipt of funds from the payment in full of such assessment, the voting rights of such Member shall automatically be restored. The Board of Directors, after appropriate due process, may also suspend the voting rights of any Member who is in violation of the Governing Documents or the Hiles or architectural guidelines promulgated by the Association from time to time and/or who allows a violation to exist of his Lot if such violation remains uncorrected after the last day of a period established by the Association. Section 4.5. Articles and Bylaws to Govern: Property Owners' Association Act. Except to the extent expressly provided in this Declaration and any applicable Supplemental Declaration, all the rights, powers and duties of the Association and the Members, including the Members' voting rights, shall be governed by the Articles and the Bylaws. The Articles provide, among other things, that the Class B member shall appoint the members of the Board of Directors until the Class Page 25 of 9389 DRAFr -12FF2B211/6/2022 B membership terminates. However, in the event of any conflict or inconsistency between the provisions of this Declaration or any Supplemental Declaration and the provisions of the Articles or Bylaws, this Declaration and all Supplemental Declarations (to the extent applicable) shall control. In the event of any conflict between this Declaration and any Supplemental Declaration, this Declaration shall control, however, this sentence shall not be interpreted or construed to negate any covenants set forth in such Supplemental Declaration which impose additional covenants and restrictions and/or more restrictive covenants for the Lots within a specific Neighborhood. In addition to all of the rights, powers and duties of the Association provided in this Declaration, the Association shall have all of the rights, powers and duties provided in the Property Owners' Association Act, § 55.1-1800 et. seq. of the Virginia Code, as the same may be amended from time to time. Section 4.6. Neiehborhoods, The Lots within a particular Neighborhood maybe subject to additional covenants other than as set forth in this Declaration (including any Supplemental Declaration), and the Owner of a Lot may be a member of another owners association in addition to the Association. In addition, the Bylaws and each Supplemental Declaration may provide for the establishment of a Neighborhood Liaison Committee or Neighborhood Advisory Committee for each Neighborhood to advise the Board of Directors of the Association with regard to matters affecting such Neighborhood, including, without limitation, making recommendations regarding the proposed annual budget with regard to any Neighborhood Assessments payable by Owners within such Neighborhood. In order to serve on such a committee an Owner and such Owner's Lot must not be in default of any obligations under the Governing Documents, including but not limited to timely payment of all assessments, and the Board of Directors shall have the authority Page 26 of 9389 DRAFT' -12AL20211/612022 to remove any Member who is in default, or whose Lot is in violation or in default, from service on such a committee. No Member shall be removed from a committee based on violation of the Governing Documents until the final determination of the matter following any requisite due process. ARTICLE V COMMON AREA Section 5.1. Obligations of the Association. The Association, subject to the rights of the Members set forth in this Declaration and subject to the rights of non -Owners, but only to the extent non -Owners are granted rights pursuant to the provisions of this Declaration, shall be -,g e-maintainenaeee, managerneat, operateien, and control€ the Common Area, the Limited Common Area and the Neighborhood Common Area and all improvements thereon (including fixtures, personal property and equipment related thereto) in etpr etuity. The Association shall keep the Common Areas, the Neighborhood Common Areas and the Limited Common Areas, and all improvements thereon and thereunto belonging in good, clean and attractive condition, order and repair and in accordance with this Declaration, the Governing Documents and the Zoning Ordinance. The Association shall whe—management, control, and maintainenanee 9 all street intersection signs (to the extent not maintained by the County and/or the Virginia Department of Transportation); direction signs; street trees and other plantings; street lights; entrance features; lighting; fencing; wood, stone or masonry wall features and/or related landscaping; emergency access ways; stomrwater managementBMP facilities; and sidewalks and bicycle/pedestrian paths erected, installed or planted in the Common Areas, Limited Common Areas and Neighborhood Common Areas by the Declarant, a Parcel Developer, or the Association Page 27 of 9389 DRAFT' 42FF20211/6/2022 in Mroetuity; provided such items are not maintained by the applicable municipality or the Virginia Department of Transportation at its/their expense and are located within Common Areas, Limited Common Areas, Neighborhood Common Areas and/or within landscaped areas of public rights -of -way for which the Association has assumed maintenance. In addition to the Association's responsibilities regarding the Common Areas, Limited Common Areas and Neighborhood Common Areas, the Association shall have the express right and authority to enter into cost sharing, shared use and cross access arrangements with any Person, including, without limitation, any other property owners association providing services and/or shared facilities in the vicinity of the Property. Further, the Association shall be responsible for maintaining all unfenced lawn areas and for maintaining and replacing, if necessary, trees shown and required by the ZMA Plan and any applicable site plan(s) on all Lots and on any Parcel developed for a condominium (but not on Parcels developed with multi -family rental units, mixed use, or non-residential development). Maintenance within fenced lawn areas shall be the responsibility of the individual Owners and other residents. All lawn areas including trees and landscaping located on Parcels developed with multi -family rental units, mixed -use, or non-residential development shall not be maintained by the Association and are the responsibility of the Owners. The Association's performance of its obligations under this Section 5.1 shall be for the benefit of its Members and such non -Owners, if any, who have been authorized to use the Common Areas, Neighborhood Common Areas, and Limited Common Areas pursuant to Sections 5.2, 5.3, 5.4 and 5.6 hereof, provided, however, that the rights of such Members and non -Owners, if any, shall be subject to the provisions of this Declaration, any applicable Supplemental Declaration, the Page 28 of 9389 DRAFT' -12FF2B211/6/2022 Articles, the Bylaws and such rules and regulations as may be adopted from time to time by the Association's Board of Directors. A Maintenance Responsibility Chart shall be attached as an exhibit to the Bylaws of the Association to set out for easy reference the respective maintenance responsibilities of the Association, Lot and Parcel Owners, and condominium subassociations. Section 5.2. Owners' Rights of Enjoyment and Use of Common Areas. Subject to the provisions of this Declaration, any applicable Supplemental Declaration, the Articles, the Bylaws and such rules and regulations as may be adopted from time to time by the Association's Board of Directors, and except to the extent limited by the designation of "Limited Common Area," every Owner shall have a right of enjoyment in and to the Common Areas which right of enjoyment shall be appurtenant to and shall pass with the title to every Lot and Parcel. The Common Areas (including without limitation the Limited Common Areas) shall be used by Owners only for the purpose or purposes for which the Common Areas may have been improved by Declarant, the Parcel Developer or the Association and subject to any applicable restrictions in the Zoning Ordinance, Any Common Area which has not been improved for a particular use is intended to remain in its natural condition until so improved, and any use thereof by an Owner shall not damage or disturb such natural condition or the enjoyment thereof by other Owners. Without limiting the generality of the foregoing, the Declarant reserves, for itself for so long as the Class B membership exists, and for the Association upon the expiration or earlier termination of the Class B membership, the right to grant to any Person or Persons a license and/or similar right to make exclusive use of portions of the Common Areas or Limited Common Areas; provided that Page 29 of 9389 DRAFT' -12AL20211/612022 any such grant is evidenced (i) in a writing executed by Declarant if granted by Declarant or (ii) by duly adopted resolution of the Board of Directors of the Association if granted by the Association. Section 5.3. Owners' Rights of Enjoyment and Use of Neighborhood Common Areas. Subject to the provisions of this Declaration, any applicable Supplemental Declaration, the Articles, the Bylaws and such rules and regulations as may be adopted from time to time by the Association's Board of Directors, and except to the extent limited by the designation of "Limited Common Area," the Owners of Lots within a particular Neighborhood shall have the primary right of enjoyment in and to the Neighborhood Common Areas located within such Neighborhood which right of enjoyment shall be appurtenant to and shall pass with the title to every Lot within such Neighborhood. The Neighborhood Common Areas shall be used by Owners of Lots within such Neighborhood only for the purpose or purposes for which the Neighborhood Common Areas may have been improved by Declarant, the Parcel Developer or the Association and subject to any applicable restrictions in the Zoning Ordinance. Any Neighborhood Common Area which has not been improved for a particular use is intended to remain in its natural condition until so improved, and any use thereof by an Owner of a Lot within such Neighborhood shall not damage or disturb such natural condition or the enjoyment thereof by other Owners of Lots within such Neighborhood. Without limiting the generality of the foregoing, the Declarant reserves, for itself for so long as the Class B membership exists, and for the Association upon the expiration or earlier termination of the Class B membership, the right to grant to any Person or Persons a license and/or similar right to make exclusive use of portions of the Neighborhood Common Areas; provided that any such grant is evidenced (i) in a writing executed by Declarant if granted by Declarant or (ii) by duly adopted resolution of the Board of Directors of the Association if granted by the Association, Page 30 of 9389 DRAFT' 12AL20211/612022 and (iii) such grant is approved by either the board of directors or a majority vote of the membership of the subassociation for such Neighborhood, if applicable, depending on the subassociation's governing provisions. Section 5.4. Limited Common Areas. The Declarant shall have the power, for so long as the Declarant has the right to add Additional Area under Section 3.2 hereof, to restrict portions of the Common Area and/or the Neighborhood Common Area for the primary use of the Owners of one or more specific Lots (and such non -Owners, if any, who have been authorized to use such areas pursuant to Section 5.6 hereof) by designating such portions of Common Area and/or Neighborhood Common Area, as applicable, as "Limited Common Area." Declarant may either: (i) indicate the locations of the Limited Common Area appertaining to one or more Lots by depicting such Limited Common Area and the Lots to which it is appurtenant on a plat attached to or recorded with a Supplemental Declaration; (ii) label a portion of the Common Area or Neighborhood Common Area, as applicable, as "Common Area that may be assigned as Limited Common Area" or "Neighborhood Common Area that may be assigned as Limited Common Area" on a plat attached as an exhibit to the applicable Supplemental Declaration and thereafter assign such Limited Common Area to one or more specific Lots by unilaterally amending the Supplemental Declaration to indicate the assignment depicting the Limited Common Area being assigned and the Lots to which it is appurtenant; or (iii) indicating that such Common Area or Neighborhood Common Area, as applicable, is Limited Common Area by a description in an applicable Supplemental Declaration. Subject to the provisions of this Declaration, any applicable Supplemental Declaration, the Articles, the Bylaws, and such rules and regulations as may be adopted from time to time by the Page 31 of 9389 DRAFT -12FF2B211/6/2022 Association's Board of Directors, the Owners of Lots) to which Limited Common Area has been assigned and such non -Owners, if any, who have been authorized to use such Limited Common Area pursuant to Section 5.6 hereof shall have the primary right of enjoyment in and to the Limited Common Area assigned which right of enjoyment shall be appurtenant to and shall pass with the title to every Lot to which such Limited Common Area is appurtenant. The Limited Common Areas shall be used by Owners of Lots to which such Limited Common Areas have been assigned and such non -Owners, if any, who have been authorized to use such Limited Common Area pursuant to Section 5.6 hereof only for the purpose or purposes for which the Limited Common Areas may have been improved by the Declarant, the Parcel Developer or the Association and subject to any applicable restrictions in the Zoning Ordinance. Any Limited Common Area which has not been improved for a particular use is intended to remain in its natural condition until so improved, and any use thereof by an Owner of a Lot to which such Limited Common Area is appurtenant shall not damage or disturb such natural condition or the enjoyment thereof by other Owners of Lots to which such Limited Common Area is appurtenant. Without limiting the generality of the foregoing, the Declarant reserves, for itself for so long as the Class B membership exists, and for the Association upon the expiration or earlier termination of the Class B membership, the right to grant to any Person or Persons a license and/or similar right to make exclusive use of portions of the Limited Common Areas; provided that any such grant is evidenced (i) in a writing executed by Declarant if granted by Declarant or (ii) by duly adopted resolution of the Board of Directors of the Association if granted by the Association. Page 32 of 9389 DRAFT -12AQ0211/612022 Section 5.5. General Limitations on Owners' Rights. The Owners' rights of enjoyment in the Common Areas, the Limited Common Areas and the Neighborhood Common Areas shall be subject to the following: (i) the right of the Association's Board of Directors to establish reasonable rules and regulations and to charge reasonable admission and other fees for the use of the Common Areas, the Limited Common Areas and the Neighborhood Common Areas; (ii) the right of the Declarant for so long as the Class B membership exists, and the right of the Association upon the expiration or earlier termination of the Class B Membership, to grant to any Person or Persons licenses and/or similar rights to make exclusive use of such areas as more particularly set forth and described in Sections 5.2, 5.3, and 5.4 hereof, (iii) the right of the Association's Board of Directors to suspend the right of an Owner to use or benefit from any of the Common Areas, the Limited Common Areas or the Neighborhood Common Areas for the period during which any assessment against his Lot or Parcel is delinquent as may be limited by the last sentence of § 55.1-1825C of the Virginia Code as in effect on the date hereof; (iv) the right of the Association's Board of Directors to suspend the right of an Owner to use or benefit from any of the Common Areas, Limited Common Areas or Neighborhood Common Areas for any period during which any other violation by the Owner of this Declaration, a Supplemental Declaration or the rules and regulations promulgated by the Association's Board of Directors pursuant to this Declaration remains uncorrected after the last day of a period established for correction by the Association's Board of Directors (such period to Page 33 of 9389 DRAFr -12AQ0211/6/2022 be stated in a notice to the Owner together with a statement of the violation complained of and the manner of its correction) and for not more than sixty (60) days after such correction; (v) the right of the Association's Board of Directors to mortgage any or all of the Common Areas, the Limited Common Areas or the Neighborhood Common Areas as further addressed in the Bylaws; (vi) the right of Declarant or the Association's Board of Directors to grant or assign utility easements across the Common Areas, the Limited Common Areas and the Neighborhood Common Areas as provided in Article IX; (vii) the right of the Association's Board of Directors to dedicate or transfer all or any part of the Common Areas, the Limited Common Areas or the Neighborhood Common Areas to any public agency, authority or utility for such purposes and subject to such conditions as may be desired; (viii) all of the other easements, covenants and restrictions provided for in this Declaration and any Supplemental Declaration(s) applicable to the Lots and/or the Common Areas, the Limited Common Areas and/or the Neighborhood Common Areas; (ix) the Declarant's designation of certain Common Areas and Neighborhood Common Areas as "Limited Common Areas" for the primary use and benefit of the Owners of one or more specified Lots (and such non -Owners, if any, who have been authorized to use such areas pursuant to Section 5.6 hereof); (x) the right of the Association's Board of Directors to permit use of any facilities situated on Common Area or Neighborhood Common Area by use of Persons other than Page 34 of 9389 DRAFr -12FF2B211/6/2022 Owners, their families, lessees and guests upon payment of use fees or other consideration established by the Board of Directors; (xi) the right of the Association's Board of Directors to determine, in its sole and absolute discretion, whether to remove any improvements, equipment or other facilities located on any Common Area, Neighborhood Common Area and/or Limited Common Area due to obsolescence, age, non-use, and/or if the cost of repairing, operating and/or maintaining the same becomes unreasonable in light of the then benefit, if any, to the affected owners; and (xii) the right of the Declarant in the Declarant's sole and absolute discretion and without charge to make use (including, without limitation, exclusive use) of any of the Common Area, Neighborhood Common Area and/or Limited Common Area at any time and from time to time for the purpose of promoting the community and/or facilitating sales of property within the community. Section 5.6. Delegation of Use. Any Owner may delegate his right of enjoyment to the Common Area, the Limited Common Area and to the Neighborhood Common Area to members of his family living on his Lot and to his guests, and he may transfer such right to his tenants, subject to such rules and regulations and fees as may be established from time to time by the Association's Board of Directors. Declarant may delegate its right of enjoyment to the Common Area, the Limited Common Area and to the Neighborhood Common Area to its employees, agents and licensees. Section 5.7. Damage or Destruction of Common Area, Limited Common Area or Neighborhood Common Area by Owner. In the event any Common Area, Limited Common Area, Neighborhood Common Area or improvement thereon is damaged, destroyed or altered by an Page 35 of 9389 DRAFT -12FF2B211/6/2022 Owner, his tenants, guests, licensees, contractors, agents or members of his family, the Association may undertake to restore such area and/or repair such damage at the Owner's expense. If the Association undertakes to restore such area and/or repair such damage, the Association shall restore/repair such alteration/damage in a good and workmanlike manner in conformance with the original plans and specifications of the area or improvement involved, or as the Common Area, Limited Common Area, Neighborhood Common Area or improvement may have been theretofore modified or altered by the Association, in the discretion of the Association's Board of Directors. The cost of such restoration and/or repairs shall become a special assessment on the Lot of such Owner and shall constitute a lien on such Owner's Lot and be collectible in the same manner as other assessments set forth herein. Section 5.8. Rights in Common Areas, Limited Common Areas and Neighborhood Common Areas Reserved by Declarant and/or a Parcel Developer. Until such time as the Declarant or a Parcel Developer conveys a property constituting Common Area, Limited Common Area or Neighborhood Common Area, as the case may be, to the Association, Declarant or the Parcel Developer, as the case may be, shall have the right as to that property, but not the obligation, (i) subject to the provisions of Article VB hereof, to construct such improvements thereon as it deems appropriate, and (ii) to use the Common Area, Limited Common Area or Neighborhood Common Area for other purposes not inconsistent with the provisions of this Declaration (including, without limitation, for a marketing or sales office, construction control center or hospitality center). Section 5.9. Title to Common Area, Limited Common Area and Neighborhood Common Area. With the exception of condominium common elements, as provided in Section Page 36 of 9389 DRAFT' -12AL20211/612022 2.31, Declarant or a Parcel Developer may retain legal title to the Common Areas, Limited Common Areas or Neighborhood Common Areas, as the case may be, or portions thereof but notwithstanding any provision herein to the contrary, the Declarant and/or the applicable Parcel Developer shall convey each Common Area, Limited Common Area or Neighborhood Common Area to the Association, in a good and workmanlike condition reasonably acceptable to the Association, free and clear of all liens but subject to this Declaration and all other easements, conditions and restrictions of record either (i) at such time as such improvements are completed and in a condition acceptable to the Association; or (ii) at such time as Declarant may elect, not to exceed five (5) years after the date specified in clause (i) of this sentence. The foregoing notwithstanding, a Parcel Developer shall not convey any property to the Association unless the Declarant is a party to the instrument of conveyance. Regardless of whether the Common Areas, Limited Common Areas or Neighborhood Common Areas actually have been conveyed by the Declarant or the applicable Parcel Developer, as the case may be, Owners and the Association shall have all the rights and obligations imposed by this Declaration, any Supplemental Declaration, the Articles and Bylaws with respect to the Common Areas, the Limited Common Areas and the Neighborhood Common Areas from and after the date such Common Areas, Limited Common Areas or Neighborhood Common Areas are designated as such by recordation of an appropriate instrument in the Clerks Office. The Association shall be liable from the date such Common Areas, Limited Common Areas and Neighborhood Common Areas are conveyed to the Association for payment of insurance and maintenance costs with respect thereto. Section 5.10. Reservation of Rights Regarding Common Area, Limited Common Area and Neighborhood Common Area. Certain of the open space, conservation areas, and historic Page 37 of 9389 DRAFT' -12AQ0211/6/2022 resources may be better suited for ownership by a private, nonprofit organization among whose purposes is the conservation of open space land and/or natural or historic resources. Notwithstanding anything in this Declaration to the contrary, and regardless of whether such areas have previously been designated as Common Areas, Limited Common Areas or Neighborhood Common Areas, Declarant reserves for itself, and its respective successors and assigns, the right, for so long as Declarant has the right to add Additional Area to the Property pursuant to Section 3.2 hereof, to transfer and convey in fee simple or by easement such open space, conservation areas, and historic resources as Declarant deems in the best interests of such areas to one or more private, nonprofit organizations, or governmental agencies. Any transfer and conveyance shall comply with the specific criteria set forth in the Zoning Ordinance, and, if any such transfer or conveyance of such areas consists of Common Area, Limited Common Area or Neighborhood Common Area, then such transfer or conveyance shall require then prior written approval of the County Director of Planning. ARTICLE VI ASSESSMENTS Section 6.1. Creation of the Lien and Personal Obligation for Assessments. Declarant, for each Lot and Parcel within the Property hereby covenants (subject to Sections 6.5, 6.8 and 6.9), and each Owner of any Lot or Parcel by acceptance of a deed therefor, whether or not it shall be so expressed in such deed, is deemed to covenant to pay to the Association assessments as set forth in this Declaration, any Supplemental Declaration and in the Bylaws. The assessments, together with interest thereon, late charges and costs of collection including attomeys' fees, shall be a continuing lien upon the Lot or Parcel against which each such assessment is made in order to secure payment thereof and shall also be the personal obligation of the party who was the Owner Page 38 of 9389 DRAFT' 12AQ021.1/6/2022 of the Lot or Parcel at the time the assessment fell due. No Owner may waive or otherwise avoid liability for the assessments provided herein by nonuse of the Common Areas, the Limited Common Areas, the Neighborhood Common Areas or abandonment of his Lot or Parcel. Each assessment that is not paid when due shall bear interest at the rate established by the Association, which rate shall not exceed the maximum rate permitted by applicable law. Each assessment that is not paid within ten (10) days of its due date shall, at the option of the Association, incur a late charge and administrative fee as may be established from time to time by resolution duly adopted by the Board of Directors of the Association. Notwithstanding anything herein to the contrary, the Association shall not levy Assessments upon any Lot or Parcel to be developed for multi -family and/or affordable housing until a certificate of occupancy (or, for a Lot or Parcel with multiple buildings or units, the first certificate of occupancy) has been issued by the County for such Lot or Parcel. Section 6.2. Pumose of Assessments. The assessments levied by the Association shall be used for the management, maintenance, improvement, care, operation, renovation, repair and replacement of the Common Areas, Limited Common Areas and Neighborhood Common Areas and improvements thereon and other property owned or acquired by the Association of any whatsoever nature; for the discharge of all taxes and other levies and assessments against the Common Areas, Limited Common Areas and Neighborhood Common Areas and improvements thereon and other property owned or acquired by the Association; for the procurement of insurance by the Association in accordance with the Bylaws; for the establishment of reserves with respect to the Association's obligations; for the discharge of the Association's contractual and legal obligations; for funding and/or providing educational and training activities for directors and Page 39 of 9389 DRAFT' 12AL2021-1/612022 officers of the Association and to Association volunteers and Owners; for the provision of services by the Association, its advisors, consultants, attorneys, contractors, employees, and agents, as authorized in this Declaration, any applicable Supplemental Declaration and/or in the Articles or Bylaws; for the discharge of such other obligations as may be imposed upon or assumed by the Association pursuant to its Articles or Bylaws or this Declaration or any Supplemental Declaration; and for such other purposes as may be authorized by or pursuant to the Articles or Bylaws. Section 6.3. Annual Assessments. "Annual Assessments" shall mean "General Assessments," 'Neighborhood Assessments," and "Limited Common Expense Assessments." (a) General Assessments. ose. "General Assessments" shall mean those assessments used for the general purposes set forth in Section 6.2 above except that the General Assessments shall not be used for those purposes for which Neighborhood Assessments and Limited Common Expense Assessments shall be used. 2. Basis, The General Assessments shall be established upon the basis of an annual budget adopted by the Board of Directors of the Association and increased or decreased from time to time by the Board of Directors of the Association pursuant to the Bylaws; provided, however, that the Board of Directors shall not increase the General Assessment more than Ten percent (10%) over the previous year's assessments without approval by the Members. Notwithstanding the forgoing, the assessment rate on the multi -family dwelling units constructed on Blocks I 1 and 12 are set at One Hundred Twenty and 00/100 Dollars ($120.00) per quarter per unit and shall not increase during the first three (3) years from the date such assessments begin as long as 100% of the dwelling units on the Parcels are Affordable Housing. Following the first Page 40 of 9389 DRAFr -42FF2B211/6/2022 three (3) years, such assessments shall not increase more than Two Percent (2%) annually without consent of the owner(s) of such units. (b) Neighborhood Assessments. I. NWosc. "Neighborhood Assessments" shall mean those assessments used for such purposes as are authorized by the Supplemental Declaration for a given Neighborhood. 2. Basis. The Supplemental Declaration for a given Neighborhood shall set forth the basis by which all Lots within a Neighborhood shall be assessed for Neighborhood Assessments. (c) Limited Common Expense Assessments. I. Purpose. "Limited Common Expenses" are those expenses attributable to managing, maintaining, improving, caring, operating, renovating, repairing, establishing appropriate reserves for, insuring and replacing Limited Common Areas, as well as the cost of providing certain services to individual Lots. The purpose of the "Limited Common Expense Assessment' is to provide a means whereby the Owners of Lots which directly benefit from specific Limited Common Area and/or certain services applicable to individual Lots pay their proportionate share of the Limited Common Expenses attributable to such Limited Common Area and/or services. 2. Basis. Limited Common Expenses may be assessed by the Association only against the Lots benefited in proportion to their relative General Assessment liability, inter se or based on usage, as appropriate. Such Limited Common Expenses shall be determined as follows: Page 41 of 9389 DRAFF 12AQ021.1/612022 (i) Any expenses designated in a Supplemental Declaration as Limited Common Expenses to be paid by the Owners of designated Lots subject to such Supplemental Declaration; (ii) Any expenses proposed by the Board of Directors or a specific group of Owners as Limited Common Expenses against a specific group of Lots and agreed to by Members entitled to cast a majority of the total number of votes with respect to such Lots, assessed against such Lots as such Owners may agree or in proportion to their relative General Assessment liability, inter se; (iii) Any expenses incurred in the upkeep of or the maintenance of, and reserves for the upkeep and replacement of, common "private" alleys, drives, and/or parking areas serving a limited number of Lots and labeled "private" on the applicable recorded plat and/or described as "private" in the applicable Supplemental Declaration shall be assessed only against the Lots served by such private alley, drive and/or parking area; PROVIDED, HOWEVER, that the cost of upkeep and replacement of private alleys and drives serving Habitat Lots shall be spread and shared among all Habitat Lots, not just those using the private alleys and drives, as part of the Limited Common Expense component of General Assessment Level 7;. (iv) Any expenses incurred in the upkeep of, or the maintenance of reserves for the upkeep of, Limited Common Area may be assessed only against the Lots served by such Limited Common Area; and (v) Any service to individual Lots based on usage. (d) Assessment Levels. For General Assessment purposes, there shall be sevenix (16) classes of Assessments: Page 42 of 9389 DRAFT 42AQ0211/6/2022 1. Level 1 — Improved Single -Family Detached. Every Lot on which a single-family detached residence has been constructed for which a certificate of occupancy has been received, shall be assessed at one hundred percent (100%) of the General Assessment for such dwelling type. 2. Level 2 — Improved Single -Family Attached and Townhome Lots. Every Lot on which a single-family attached, duplex, or townhome residence has been constructed for which a certificate of occupancy has been received, shall be assessed at one hundred percent (100%) of the General Assessment for such dwelling type. 3. Level 3 — Condominium Units. All condominium units on a Lot or Parcel on which a condominium has been developed and constructed and for which the County has issued a certificate of occupancy for the first unit shall be assessed at one hundred percent (100%) of the General Assessment for condominium units. 4. Level 4 — Unimproved Lots and Parcels (Single -Family Detached, Attached, Duplex, Townhome, Residential Condominium). All Lots or Parcels on which no single-family residence, townhome, or condominium has been completed and for which a certificate of occupancy has not been issued by the County, shall be assessed at a rate of twenty- five percent (25%) of the General Assessment for the relevant unit type; provided, however, that Lots or Parcels for which Affordable Housing (single-family detached/attached/duplex, condominium, or multi -family) shall be built are exempt from any pre -certificate of occupancy assessment. 5. Level 5 — Lots or Parcels Improved by Multi -Family, Mixed -Use. or Non -Residential Development. The Owner of a Parcel on which multi -family, mixed -use, or non - Page 43 of 9389 DRAFF 12AQ0211/612022 residential rental structure(s) have been constructed and for which a certificate of occupancy has been issued shall pay one hundred percent (100%) of the General Assessment rate for the use type of the Lot or Parcel. 6, Level 6 — Lots or Parcels to be Improved by Multi -Family. Mixed - Use. or Non -Residential Development.— A Lot or Parcel to be developed for multi -family residential shall be exempt from General Assessments until a certificate of occupancy has been issued for such Lot or Parcel. A Lot or Parcel to be developed for non-residential or mixed uses shall be assessed at a rate of twenty-five percent (25%) of the General Assessment until a certificate of occupancy has been issued for such Lot or Parcel. 6-7. Level 7 — Habitat Lots containing Sinule-Family Detached. Attached, and Townhome Dwellings. Each Habitat Lot improved with a single-family home (but not condominiums or multi -family building) shall be assessed at a rate that will include Limited Common Expenses to fund the special exterior upkeep_ provided for in Section 8.2 of this Declaration. (e) Apportionment. If a supplemental declaration is recorded with respect to the condominiums, or other particular units located within a particular Neighborhood or unit types located across the development, the Board of Directors has the authority to bill the units belonging to such subassociation through the applicable subassociation. 2. For example, once a Condominium Declaration is recorded with respect to a Condominium, if the Association Board elects to bill the Condominium Association for all Assessments payable by the unit owners in such Condominium (as opposed to billing such Page 44 of 9389 DRAFr 12AQ021-1/6/2022 unit owners directly as Lot Owners), the Condominium Association shall pay the Assessments and allocate any Assessments levied upon such condominium units against the condominium unitsin accordance with the terms of the Condominium Declaration. The Condominium Association will have a lien right against each Unit to secure payment of each Unit's applicable portion of the Assessments. Section 6.4. Special Assessments. In addition to the General, Neighborhood Assessments and Limited Common Expense Assessments, the Board of Directors of the Association may levy a periodic special assessment if the purpose in doing so is found by the Board of Directors to be in the best interest of the Association and the proceeds of such assessment are used for (1) the maintenance and upkeep, including capital expenditures, of the Common Area (or of (i) the Neighborhood Common Area, provided the special assessment is levied against only those Lots within such Neighborhood or (ii) the Limited Common Area, provided the special assessment is levied against only those Lots served by such Limited Common Area); and (2) the discharge of taxes, the procurement of insurance, the establishment of reserves, payment of costs and expenses incurred by the Association in the course of its operations, and the discharge of such services and other obligations as may be assumed by the Association pursuant to its Articles, Bylaws, the Declaration or any Supplemental Declaration or any cost sharing, use or cross easement arrangements entered into with any other Person, and for such other purposes as authorized by or pursuant to the Articles or Bylaws. Section 6.5. Date of Commencement of Annual Assessments. Subject to Section 6.1 as to any Lot or Parcel to be developed for multi -family and/or Affordable Housing and subject to Section 6.9 regarding budget development, the Annual Assessments provided for herein shall Page 45 of 9389 DRAFT' 12AQ021.1/612022 commence as to each Lot or Parcel on the first day of the month following the recordation of the deed to such Lot or Parcel to an Owner. The first Annual Assessment on a Lot or Parcel shall be adjusted according to the number of months remaining in the calendar year. Unless the Board of Directors of the Association amends the Bylaws to provide otherwise, the Annual Assessments shall be paid as provided in the Bylaws. Section 6.6. Effect of Nonpayment of Assessments; Remedies of Association. The lien of the assessments provided for in this Declaration may be perfected and enforced in the manner provided in § 55.1-1833 of the Virginia Code. A statement from the Association showing the balance due on any assessment shall be prima facie proof of the current assessment balance and the delinquency, if any, due on a particular Lot or Parcel. The Association may also bring an action at law against any Owner personally obligated to pay the same, either in the first instance or for deficiency following foreclosure, and interest, late charges and costs of collection including attorney's fees shall be added to the amount of such assessment and secured by the assessment lien. Each assessment that is not paid within ten (10) days of its due date shall, at the option of the Association, incur a late charge and administrative fee as may be established from time to time by resolution duly adopted by the Board of Directors of the Association. In addition, if any installment of any Annual Assessment or Special Assessment is not paid within thirty (30) days after the due date, the Board of Directors shall have the right upon notice to the Owner to accelerate the installments owed and declare the entire balance of any Annual Assessment or Special Assessment due and payable in full. Page 46 of 9389 DRAFT 12AQ021-1/6/2022 Section 6.7. Subordination of Lien to Mortgages. The lien upon each of the Lots and Parcels securing the payment of the assessments shall have the priority set forth in § 55.1-1833A of the Virginia Code. Section 6.8. Exempt Property. The following property subject to this Declaration shall be exempt from the assessments and liens created herein: (i) any property used as a sales or leasing center, model, maintenance center or management facility by Declarant or for similar purposes; (ii) all Property dedicated and accepted by a public authority; (in) all Common Areas, Limited Common Areas and Neighborhood Common Areas; and (iv) all Property other than Lots wholly exempt from real estate taxation by state or local governments upon the terms and to the extent of such legal exemption. Section 6.9. Annual Budget. The Board of Directors shall adopt an annual budget for each fiscal year, which budget shall provide for the annual level of assessments (including provision for reserves and physical damage insurance deductibles) and an allocation of expenses. Until the adoption of a budget for a particular fiscal year, Assessments shall remain at their prior year's levels. Failure of the Board to adopt a budget in a timely fashion shall not relieve Members from their responsibility for the payment of assessments. The Board of Directors may amend and/or modify any previously adopted annual budget at any time and from time to time during the Association's fiscal year and shall have the right to amend and/or modify the annual level of assessments payable pursuant to such amended and/or modified annual budget. Section 6.10. Capital Contribution. Upon the acquisition of record title to a Lot by a person (other than Declarant, the Parcel Developer or an owner who purchases solely for the purpose of constructing a dwelling thereon for resale), a mandatory capital contribution shall be Page 47 of 9389 DRAFT' 12N3021.1/6/2022 made by or on behalf of such person to the Association in the initial amount equal to one-fourth (1/4) the amount of the Annual General Assessment for such Lot which capital contribution may be increased from time to time by resolution of the Board of Directors. [For Habitat Lots, the capital contribution will be one-fourth I'M the amount of Annual General Assessment not including the Limited Common Expense added for exterior maintenance.I This contribution shall be deposited in the purchase and sales escrow at settlement and shall be disbursed therefrom to the Association for its capital reserve fund(s), or if there is no settlement, shall otherwise be paid directly to the Association upon such person obtaining title. Amounts payable under this Section 6.10 are in addition to any assessments and any fees associated with the Association's preparation and delivery of the Disclosure Packet pursuant to the Virginia Property Owners' Association Act (§ 55.1-1800 et. sect ., of the Code of Virginia, as amended). The amount of any unpaid capital contribution shall constitute a lien on such Owner's Lot or Parcel and shall be deemed a special assessment upon such Lot or Parcel and such shall be regarded as any other assessment with respect to lien rights of the Association and remedies provided herein for non-payment. Persons who acquire title to a Lot or Parcel are obligated to pay such contribution to the Association regardless of whether such Person acquired title to such Lot or Parcel by purchase (with or without consideration), gift or devise. In the interest of clarity, the capital contribution is due and payable upon each transfer of a Lot or Parcel, not only the initial purchase. Section 6.11. Loans by Declarant. The Declarant shall have the option, but not the obligation, to loan money to the Association at any time or from time to time on such terms and at such rates as are commercially reasonable to enable the Association to comply with its obligations under this Declaration. Such loan or loans may be in lieu of, or in addition to, loans obtained by Page 48 of 9389 DRAFT' 42FF2B211/6/2022 the Association from other parties. Any such loan shall be represented and secured by one or more promissory notes of the Association and shall be listed and disclosed as "Loans from Declarant" on all annual budgets and year-end financial statements of the Association. ARTICLE VII ARCHITECTURAL, CONTROL Section 7.1. Architectural Review Board. There is hereby established a committee (the "Architectural Review Board") for the purpose of reviewing and, as appropriate, approving or disapproving all Plans (hereinafter defined) submitted by Owners in accordance with this Article VII. The Architectural Review Board shall be composed of three to seven persons, at least 51% of whom shall be Legacy Southwood Residents-, until the f4n4 eeFtifi. ate _v _, euls... e has been issued f,�ucv—,vF Phase ""final certificate of occupancy for Phase I has been issued, the remainder of whom need not be Members of the Association, from time to time appointed by Declarant until 100% of the Property and the Additional Area have been developed and conveyed to Owners other than builders, or by the Board of Directors of the Association from and after the date on which Declarant delegates this responsibility to the Association by written instrument in recordable form executed by Declarant. For the purposes of this Section 7.1 only, "Legacy Southwood Residents" means individuals who were approved to live in Southwood by the Declarant's property management office on or before November 8, 2019. The members of the Architectural Review Board shall serve for such terms as may be determined by Declarant or the Board of Directors of the Association, as the case maybe. T`- "-..u,tept.._..l n_.:_.. o_md shall _.......ain in ..i..ee a4 ,east wuntil 4L............pe of the final e .4i fteaw of............. e of Phase 1 of Southwood. Before the first issuance of a buildingpermit for Phase 2, the ARB shall be composed of 100% Southwood Page 49 of 9389 DRAFT' -12AQ021.1/6/2022 residents and will remain in place at least until the issuance of the final buildingpermit for Phase 2. Section 7.2. Plans to be Submitted. Before commencing the construction, erection or installation of any building, which shall be in compliance with the Code of Development's architecture, landscaping, buffer, screening, and other standards (each of the foregoing being hereinafter referred to as an "Improvement') on any Lot or Parcel, including any site work in preparation therefor, and before commencing any alteration, enlargement, demolition or removal of an Improvement or any portion thereof in a manner that alters the exterior appearance of the Improvement or of the Lot or the Parcel on which it is situated, each Owner shall submit to the Architectural Review Board a completed application on the form provided by the Architectural Review Board (the "Application"), a proposed construction schedule and at least three sets of plans and specifications of the proposed construction, erection, installation, alteration, enlargement, demolition or removal, which plans and specifications shall include (unless waived by the Architectural Review Board): (i) a site plan showing the size, location and configuration of all Improvements, including driveways and landscaped areas, and all setback lines, buffer areas and other features required under the Zoning Ordinance or the guidelines adopted by the Architectural Review Board, (ii) as to Improvements initially constructed on a Lot or a Parcel, landscaping plans showing the trees to be removed and to be retained and shrubs, plants and ground cover to be installed, (iii) architectural plans of the Improvements showing exterior elevations, construction materials, exterior colors, driveway material, (iv) a sediment and erosion control plan, and (v) a tree protection plan and such other information as the Architectural Review Board in its discretion shall require (collectively, the 'Plans"). The Architectural Review Board may, in its sole Page 50 of 9389 DRAFT' -12AQ0211/6/2022 discretion, waive the requirement that any or all of the required Plans be submitted in a particular case where it determines such Plans are not necessary to properly evaluate the Application. The Architectural Review Board shall not be required to review any Plans unless and until the Application has been submitted in completed form with the proposed construction schedule, the Plans contain all of the required items, and the application fee has been submitted. The Application, Plans and the proposed construction schedule must be submitted to the Architectural Review Board at the address of Declarant in the same manner as notices are to be sent to Declarant pursuant to Article MI, for so long as all members of the Architectural Review Board are appointed by Declarant, and thereafter the Application, Plans and the proposed construction schedule may be submitted to the Architectural Review Board at the address of the Association in the same manner as notices are to be sent to the Association pursuant to Article XII. The Architectural Review Board may grant blanket plan approval to Parcel Developers and/or to builders who purchase more than one Lot at a time, subject to such additional conditions (such as receipt of a site plan for a specific Lot) as the Architectural Board may establish. Section 7.3. Consultation with Architects, etc.. In connection with the discharge of its responsibilities, the Architectural Review Board may engage or consult with architects, engineers, planners, surveyors, attorneys and others at the expense of the Association. Section 7.4. Approval of Plans. The Architectural Review Board shall not approve the Plans for any Improvement that would violate any of the provisions of this Declaration or of any Supplemental Declaration applicable thereto or of the Zoning Ordinance, expressly including the Code of Development. In all other respects, the Architectural Review Board may exercise its sole discretion in determining whether to approve or disapprove any Plans, including, without Page 51 of 9389 DRAFr -12FF2B211/6/2022 limitation, the location of any Improvement on a Lot or Parcel. An Owner whose application has been disapproved by the Architectural Review Board may appeal such decision to the Board of Directors if such Owner notes his/her appeal in writing to the Association and such notice of appeal is received by the Association on or before the date that is ten (10) days after the date of the Architectural Review Board's decision. Approval shall be valid for one (1) year so that if the approved construction has not commenced by the one-year anniversary of the approval, then the Plans must be resubmitted for de novo review. If the Architectural Review Board has not approved or denied a complete application within forty-five (45) days of the application's being submitted and / or deemed complete (if later), then the application shall be deemed approved. Section 7.5. No Structures to be Constructed. etc. Without Approval. No Improvement shall be constructed, erected, installed or maintained on any Lot or Parcel, nor shall any Improvement be altered, enlarged, demolished or removed in a manner that alters the exterior appearance of the Improvement or of the Lot or the Parcel on which it is situated, unless the Application, Plans and construction schedule therefor have been approved by the Architectural Review Board. After the Application, Plans and construction schedule therefor have been approved, all Improvements shall be constructed, erected, installed, maintained, altered, enlarged, demolished or removed strictly in accordance with the approved Plans. Upon commencing the construction, erection, installation, alteration, enlargement, demolition or removal of an Improvement, all of the work related thereto shall be carried on with reasonable diligence and dispatch and in accordance with the construction schedule approved by the Architectural Review Board. Page 52 of 9389 DRAFr -12FF2B211/6/2022 Section 7.6. Guidelines May Be Established. The Architectural Review Board has established guidelines and standards (collectively, "Architectural Guidelines") to be used in considering whether to approve or disapprove Plans. The Architectural Guidelines may be amended by the Architectural Review Board, subject to the approval of the Board of Directors. Such guidelines may vary by Parcel and/or Neighborhood and may include, without limitation, uniform standards for signage and mailboxes and mailbox supports. However, nothing contained in this Declaration shall require the Architectural Review Board to approve the Plans for Improvements on a Lot or a Parcel on the grounds that the layout, design and other aspects of such Improvements are the same or substantially the same as the layout, design and other aspects of Improvements approved by the Architectural Review Board for another Lot or Parcel. The Architectural Guidelines may include specific procedures to implement the Application and Application review process, including, without Irritation, a procedure for an applicant's appeal of the Architectural Review Board's decision, as well as requirements relating to the form of the Application and required signatures thereon. Section 7.7. Limitation of Liability. The approval by the Architectural Review Board of any Plans, and any requirement by the Architectural Review Board that the Plans be modified, shall not constitute a warranty or representation by the Architectural Review Board of the adequacy, technical sufficiency or safety of the Improvements described in such Plans, as the same may be modified, and the Architectural Review Board shall have no liability whatsoever for the failure of the Plans or the Improvements to comply with applicable building codes, laws and ordinances or to comply with sound engineering, architectural or construction practices. In addition, in no event shall the Architectural Review Board have any liability whatsoever to an Page 53 of 9389 DRAFT 42AQ0211/6/2022 Owner, a contractor or any other party for any costs or damages (consequential or otherwise) that may be incurred or suffered on account of the Architectural Review Board's approval, disapproval or conditional approval of any Plans. The Architectural Review Board shall have no liability whatsoever to any Owner due to the fact that the housing style, type, square footage, and/or price range associated with any approved Plans and/or Improvements differ from those of Improvements approved by the Architectural Review Board for another Lot or Parcel. Section 7.8. Other Responsibilities of Architectural Review Board. In addition to the responsibilities and authority provided in this Article VII, the Architectural Review Board shall have such other rights, authority and responsibilities as may be provided elsewhere in this Declaration, in any Supplemental Declaration and in the Bylaws. ARTICLE VIB USE OF PROPERTY Section 8.1. Protective Covenants. (a) Nuisances. No nuisance shall be permitted to exist on any Lot or Parcel. Noxious, destructive, or offensive activity, or any activity constituting an unreasonable source of noise (such as barking dogs) and/or annoyance, shall not be conducted on any Lot or Parcel or on the Common Area, Limited Common Area, Neighborhood Common Area, or any part thereof, and the Association shall have standing to initiate legal proceedings to abate such activity. Each Owner shall refrain from any act or use of his or her Lot or Parcel which could reasonably cause embarrassment, discomfort, or annoyance to other Owners, and the Board of Directors shall have the power to make and to enforce reasonable rules in furtherance of this provision. (b) Restriction on Further Subdivision. No Lot shall be further subdivided or separated into smaller Lots by any Owner (other than Declarant and a Parcel Developer), and no Page 54 of 9389 DRAFT -12FF2B211/6/2022 portion less than all of any such Lot, nor any easement or other interest herein, shall be conveyed or transferred by an Owner, provided that this shall not prohibit the vacating of boundaries between adjacent Lots to create a bigger Lot, deeds of correction, deeds to resolve boundary line disputes and similar corrective instruments and provided that this shall not prohibit the division or combination of condominium units in accordance with law, or the creation of condominiums. The vacating of boundaries between adjacent Lots shall create one Lot for assessment purposes provided that any such vacation of Lot boundaries during the Declarant Control Period requires the prior written consent of Declarant which consent Declarant may grant, withhold or condition in its sole and absolute discretion. Any Owner who vacates a boundary between two Lots will be thereafter obligated to pay assessments on one Lot upon the recordation of the appropriate instruments in the Clerk's Office. (c) Rules. From time to time the Board of Directors may adopt general rules, including but not Invited to rules to regulate potential problems relating to the use of Property and the well-being of Members, such as the definition of nuisances, keeping of animals, storage and use of all vehicles, storage and use of machinery, parking of vehicles, assignment of parking spaces, use of outdoor drying lines, antennas, satellite dishes, signs, trash and trash containers, restrictions on sprinkler and irrigation systems, private irrigation wells and uses of lakes, water bodies and wetlands, maintenance and removal of vegetation on the Property and the type and manner of application of fertilizers or other chemical treatments to the Property in accord with non -point source pollution control standards (collectively, the "Rules"). All such Rules and any subsequent amendments thereto shall be binding on all Members and occupants of the Property, including their tenants, guests and invitees, except where expressly provided otherwise in such Page 55 of 9389 DRAFT -12AQ0211/612022 Rule. Such Rules as adopted from time to time are herein incorporated by reference and shall be as binding as if set forth herein in full; provided, however, that in the event of a conflict between any provision(s) in the Rules and the Governing Documents, the provision(s) set forth in the Governing Documents shall control. (d) Exceptions. In certain special circumstances, the Declarant and/or Board of Directors may issue variances exempting a particular Lot or Parcel from any of the provisions of this Article VIII. (e) Irrigation. Subject to the rights retained by Declarant in Section 9.7, no sprinkler or irrigation system of any type which draws upon water from creeks, streams, rivers, lakes, ponds, wetlands, canals or other ground or surface waters within the Property shall be installed, constructed or operated within the Property without the written approval of Declarant, except that the Association shall have the right to draw upon water from such water bodies for irrigation of the Common Area, the Limited Common Area and/or the Neighborhood Common Area. All sprinkler and irrigation systems shall be subject to approval in accordance with Section 7.5 of this Declaration. Provided, however, this paragraph shall not apply to the Declarant, and may not be amended without Declarant's written consent so long as Declarant has the right to add property in accordance with Article III. Further, the Association and Owners shall have the right to utilize reclaimed water for irrigation purposes. (f) Lakes and Water Bodies. The Association shall not be responsible for any loss, damage or injury to any person or property arising out of the authorized or unauthorized use of lakes, ponds, streams or other water bodies within the Property. The Association shall not be Page 56 of 9389 DRAFT' 12AQ021.1/6/2022 responsible for maintaining water levels in any lakes, ponds, streams or other water bodies within the Property. (g) Permitted Uses. The Code of Development establishes the zoning for Southwood. Table 2 sets out the residential uses permitted and prohibited in each Block, and Table 3 sets forth the non-residential uses permitted and prohibited in each Block. Definitions for certain uses and general and supplemental regulations pertaining to certain uses, such as accessory apartments, flexible use structures, and agricultural uses are set out in the Code of Development. Further, the Association may establish additional use restrictions and stricter conditions and regulations regarding permitted uses, and, in such case, the stricter provisions of this Declaration, in conjunction with the Rules and Regulations shall prevail. Nothing in the Governing Documents shall be construed to prohibit the Declarant, a Parcel Developer, or their respective designees from using any Lot owned by the Declarant or any Parcel Developer (or any other Lot with the permission of the Owner thereof) or any portion of the Common Area, Limited Common Area or Neighborhood Common Area for promotional, marketing, display or customer service purposes (such as a visitors' center) or for the settlement of sales of Lots. Further, the Declarant specifically reserves the right to operate a construction office or a rental, brokerage and management office at any time on Lots owned or leased by the Declarant and/or a Parcel Developer (or any other Lot with the permission of the Owner thereof) and on any portion of the Common Area, Limited Common Area or the Neighborhood Common Area, to the extent permitted by law. The Declarant and a Parcel Developer may assign their respective rights under this section to, or share such rights with, one or more other Persons, exclusively, simultaneously or consecutively with respect to the Page 57 of 9389 DRAFr -12AQ0211/6/2022 Common Area, Limited Common Area or the Neighborhood Common Area and Lots owned or leased by the Declarant, the Parcel Developer or such Persons. (h) Hazardous Uses; Waste. Nothing shall be done or kept on the Property which will increase the rate of insurance applicable for permitted uses for the Common Area, Limited Common Area, the Neighborhood Common Area or any part thereof without the prior written consent of the Board of Directors, including, without limitation, any activities which are unsafe or hazardous with respect to any person or property. No person shall permit anything to be done or kept on the Property which will result in the cancellation of any insurance on the Common Area, Limited Common Area, the Neighborhood Common Area or any part thereof or which would be in violation of any law, regulation or administrative ruling. No vehicle of any size which transports inflammatory or explosive cargo may be kept or driven on the Property at any time. Each Owner shall comply with all federal, state and local statutes, regulations, ordinances, or other rules intended to protect the public health and welfare as related to land, water, groundwater, air or other aspects of the natural environment (the "Environmental Laws"). Environmental Laws shall include, but are not limited to, those laws regulating the use, generation, storage or disposal of hazardous substances, toxic wastes and other environmental contaminants (collectively, the "Hazardous Materials"). No Owner shall knowingly use, generate, manufacture, store, release, dispose of or knowingly permit to exist in, on, under or about such Owner's Lot, the Common Area, the Limited Common Area, the Neighborhood Common Area, or any portion ofthe Property, or transport to or from any portion of the Property any Hazardous Materials except in compliance with the Environmental Laws. No waste shall be committed on the Common Area, Limited Common Area or the Neighborhood Common Area. Page 58 of 9389 DRAFT' -12AQ0211/612022 (i) Lawful Use. No improper, offensive or unlawful use shall be made of the Property or any part thereof, and all valid laws, zoning ordinances and regulations of all governmental agencies having jurisdiction thereof shall be observed. All laws, orders, rules, regulations or requirements of any governmental agency havingjurisdiction thereof relating to any portion of the Property shall be complied with, by and at the sole expense of the Owner, the Association, the Declarant or any owners association or condominium unit owners association, whichever shall have the obligation for the upkeep of such portion of the Property, and, if the Association, then the cost of such compliance shall be included in the General Assessment, Neighborhood Assessment or Limited Common Expense Assessment, as appropriate. 0) Emissions. There shall be no emissions of dust, sweepings, dirt, cinders, odors, gases or other substances into the atmosphere except for normal residential chimney emissions, no production, storage or discharge of Hazardous Materials on the Property or discharges of liquid, solid wastes or other environmental contaminants into the ground or any body of water, if such emission, production, storage or discharge may adversely affect the use or intended use of any portion of the Property or may adversely affect the health, safety or comfort of any person. The foregoing sentence shall not apply to dust, mud, dirt and construction debris emitted by or in connection with the construction of Improvements by Declarant or a Parcel Developer. (k) Noise. No person shall cause any unreasonably loud noise (except for security devices) anywhere on the Property, nor shall any person permit or engage or allow such persons, dogs or other pets to engage in any activity, practice or behavior which causes unreasonable annoyance, discomfort or disturbance to any person lawfully present on any portion Page 59 of 9389 DRAFr -12AQ0211/6/2022 of the Property. The foregoing sentence shall not apply to the noise emitted by or in connection with the construction of Improvements by Declarant or a Parcel Developer. (1) Obstructions. No person shall obstruct any of the Common Area, Limited Common Area, Neighborhood Common Area, or otherwise impede the rightful access of any other person on any portion of the Property upon which such person has the right to enter. No person shall place or cause or permit anything to be placed on or in any of the Common Area, Limited Common Area or Neighborhood Common Area without the approval of the Board of Directors of the Association. Nothing shall be altered or constructed in or removed from the Common Area, Limited Common Area or Neighborhood Common Area except with the prior written approval of the Board of Directors. No vehicles may be parked in private street or right-of-way within the Property and vehicles may not be parked overnight in any parking areas located within the Common Area, Neighborhood Common Area and Limited Common Area. (m) Association Property. The Common Area, Limited Common Area and Neighborhood Common Area shall be used only for the famishing of the services and facilities for which the same is reasonably suited and which are incident to the use and occupancy of the Lots. The improvements located on the Common Area, Limited Common Area and Neighborhood Common Area shall be used only for their intended purposes. Except as otherwise expressly authorized pursuant to Sections 5.2, 5.3 and 5.4 hereof or otherwise provided in the Governing Documents, no Owner shall make any private, exclusive or proprietary use of any of the Common Area, Limited Common Area or Neighborhood Common Area without the prior written approval of the Board of Directors and then only on a temporary basis. Page 60 of 9389 DRAFT -12AQ0211/612022 (n) Minine. No Lot shall be used for the purpose of boring, mining, quarrying, exploring for or removing oil or other hydrocarbons, minerals, gravel or earth except with the prior written approval of the Board of Directors. (o) Ste. Except for such signs as may be posted by the Declarant for promotional or marketing purposes or by the Association, no signs of any character shall be erected, posted or displayed in a location that is visible from the Common Area, Limited Common Area, Neighborhood Common Area or any other Lot or street, except as otherwise expressly permitted in the Rules and/or the guidelines adopted from time to time by the Architectural Review Board and the Board of Directors. The foregoing shall not be construed to prohibit a building contractor from erecting a temporary sign to advertise construction on that lot, nor shall a licensed real estate broker be prohibited from erecting a temporary sign to advertise the property for sale or rent. Neither of such temporary signs shall be larger than six square feet (e.g. 2' x 3 % and each shall be removed no later than ten (10) days following completion of improvements or the sale or lease of the property. Declarant shall not be prohibited from erecting signage to identify Southwood or any section or phase thereof No permanent signage of any character shall be constructed, erected, or installed on any lot, Common Area, or Limited Common area without the prior approval of the Architectural Review Board in accordance with the provisions herein set out. (p) Trash. Except in connection with construction activities, no burning of any trash and no accumulation or storage of litter, refuse, bulk materials, building materials, garbage, or trash of any other kind shall be permitted on any Lot. Trash containers shall not be permitted to remain near the street except on days oftrash collection (and the evening before) and as provided in the Rules. Trash, leaves and other materials shall not be burned in violation of local ordinances. Page 61 of 9389 DRAFr 12AQ0211/612022 No incinerator shall be kept or maintained upon the Property without the prior written approval of the Board of Directors. All trash collection and removal and the storage of trash containers shall be in accordance with the Rules. (q) Landscainp: Sight -lines. No tree, hedge or other landscape feature shall be planted or maintained in a location which obstructs sight -lines for vehicular traffic on public streets. Pavement, plantings and other landscape materials shall not be placed or permitted to remain upon any Lot: (i) if such items may damage or interfere with any easement for the installation or maintenance of utilities; (ii) in violation of the requirements of such easements; (in) unless in conformity with public utility standards; (iv) if such items block view corridors as determined by the Architectural Review Board; (v) if such items may unreasonably change, obstruct or retard direction or flow of any drainage channels. No water pipe, sewer pipe, gas pipe, drainage pipe, television cable, electrical wire, or other similar transmission line shall be installed or maintained upon any Lot above the surface of the ground except as otherwise expressly permitted as provided in subparagraph (gg) below. (r) Trees and Ve eg tation. Trees and other plantings required by and shown on any approved site plan for the Property (e.g. street trees within planting strips) shall not be removed except as necessary by the Association, which shall replace any such required trees and plantings upon removal. No live trees with a diameter in excess of four (4) inches, measured three (3) feet above ground and no live vegetation on slopes of greater than 25 percent (25%) gradient or marked "no cut" areas on approved site plans may be cut without prior approval of the Architectural Review Board. The Board of Directors may set rules for cutting of trees to allow for selective clearing or cutting, and the Board of Directors shall have the absolute discretion to determine Page 62 of 9389 DRAFT' 12AL2021.1/6/2022 whether to remove trees within the Common Area, Neighborhood Common Area and Limited Common Area. (s) Accessory Apartments and Flexible Use Structures. Accessory Apartments and Flexible Use Structures. An Accessory Apartment and/or a Flexible Use Structure, as defined by the Code of Development, shall be permitted on a Lot improved with a single-family dwelling subject to the restrictions set out in the Code of Development. (t) Fences. Except for any fence installed by the Declarant or the Association, no fence shall be installed except in conformance with standards established therefore and with the prior written approval of the Architectural Review Board. (u) Vehicles. Owners may park their vehicles, trailers, commercial vehicles, construction trucks, campers, recreational vehicles, all -terrain vehicles, personal watercraft, jet skis, boats or other large vehicles, including grounds maintenance equipment on their own Lots. Except in connection with construction activities, no trucks (except for private passenger trucks), trailers, commercial vehicles, construction trucks, campers, recreational vehicles, all -terrain vehicles, personal watercraft, jet skis, boats or other large vehicles, including grounds maintenance equipment, may be parked along streets or on any portion of the Common Area, Limited Common Area, the Neighborhood Common Area. All vehicles must be parked so as not to impede traffic or damage vegetation. No vehicle longer than twenty-two feet (22') may be parked on any private or public road; such prohibition does not apply to contractors and subcontractors during construction of buildings within the neighborhood. Notwithstanding the foregoing. Owners whose Lots include garages are required to use their garages for their vehicles to the fullest extent possible because street parking is limited. No junk or derelict vehicle or other vehicle on which current Page 63 of 9389 DRAFT -12AQ0211/6/2022 registration plates and current county and state inspection permits are not displayed shall be kept upon any portion of the Common Area, Limited Common Area, Neighborhood Common Area, or any portion of a Lot visible from the Common Area, Limited Common Area, Neighborhood Common Area, or another Lot, or any private right-of-way. Vehicle repairs and storage of vehicles are not permitted, except in accordance with the Rules. All motor vehicles including, but not limited to, trail bikes, motorcycles, dune buggies, and snowmobiles shall be driven only upon paved streets and parking areas. No motor vehicles, motorized scooters, "segways" or similar motorized equipment shall be driven on community trails, pathways or unpaved portions of the Common Area, Limited Common Area or Neighborhood Common Area, except (i) such vehicles as are authorized by the Board of Directors as needed to maintain, repair, or improve the Common Area, Limited Common Area or Neighborhood Common Area, and (ii) motorized wheelchairs or other devices to assist disabled persons. This prohibition shall not apply to normal vehicular use of designated streets, and alleys constructed on the Common Area, Limited Common Area or Neighborhood Common Area. (v) Home -Based Businesses. Use of a dwelling unit for any business, commercial, manufacturing, mercantile, storing, vending, or other non-residential purpose is only permitted if such use is allowed under the Code of Development and this Declaration, subject to the Zoning Ordinance regulations. Owners must obtain all necessary governmental licenses, zoning clearances and permits, and must comply with all applicable laws and regulations pertaining to such use, including regulations of building setbacks, parking, traffic, and noise. A home occupation shall cause no change to the exterior appearance of the dwelling unit; no home occupation shall sell goods to a customer who comes to the site except for goods that are hand - Page 64 of 9389 DRAFT' 12AQ021:1/612022 crafted on -site and goods sold that are directly related to a beauty shop or one -chair barber shop home occupation; all vehicles used in the home occupation, and all vehicles of employees, customers, clients, or students must be parked on -site; no equipment or other items related to the business may be stored, parked or otherwise kept on such Owner's Lot or the Property outside of approved (if applicable) fencing, shed, or other screening or enclosure; and the home occupation shall generate no significant number of visits (as determined by the Board of Directors) by clients, customers or other persons related to the business..- As a condition to such use, the Board of Directors may require the Owner to pay any increase in the rate of insurance or other costs for the Association which may result from such use. Family Day Homes and Child Care Facilities, as defined by the Zoning Ordinance and Code of Development, are permitted on Lots, subject to applicable laws and any application Rules and Regulations as may be adopted by the Board of Directors. (w) Animals. The maintenance, keeping, boarding or raising of animals, livestock, poultry or reptiles of any kind, regardless of number, is prohibited upon the Common Area, Limited Common Area or Neighborhood Common Area. The keeping of guide animals and orderly domestic pets (e.g., dogs and cats; hamsters, gerbils, guinea pigs; caged birds) is permitted, subject to the Rules; provided, however, that such pets are not kept or maintained for commercial purposes or for breeding and that any such pet causing or creating a nuisance or unreasonable disturbance or noise may be permanently removed from the Property upon ten (10) days written notice from the Board of Directors. Pets shall not be permitted upon the Common Area, Limited Common Area or Neighborhood Common Area unless accompanied by someone who can control the pet and unless carried or leashed. Pet droppings shall be removed by the person accompanying Page 65 of 9389 DRAFF -12AL20211/612022 the pet. Any Owner who keeps or maintains any pet upon any portion of the Property agrees to indemnify and hold the Association, each Owner and the Declarant free and harmless from any loss, claim or liability of any kind or character whatever arising by reason of keeping or maintaining such pet within the Property. All pets shall be registered and inoculated as required by law. Refer to the Code of Development for permitted uses and restrictions regarding animals kept for agricultural use. Further restrictions regarding the keeping of animals may be implemented through Rules and Regulations pursuant to subsection (c) of this Section S.I. (x) Clothes Drying Equipment. Only such clotheslines or other clothes drying apparatus expressly permitted under, and meeting the criteria set forth in, the Rules and/or any Architectural Guidelines, shall be permitted outside of an enclosed structure on any Lot. (y) Mailboxes and Newspaper Tubes. Only mailboxes and newspaper tubes approved by the Architectural Review Board shall be permitted. The Architectural Review Board may adopt specific criteria applicable to mailboxes and newspaper tubes, and such criteria may vary by Neighborhood. (z) Li tin . No exterior lighting shall be directed outside the boundaries of any Lot. All exterior lighting requires pre -approval by the Architectural Review Board prior to installation. (aa) Pools. Only such pools expressly permitted under, and meeting the criteria set forth in, the Rules and/or any Architectural Guidelines, shall be permitted on any Lot. (bb) Construction Activities. This section shall not be construed as forbidding any work involved in the construction or maintenance of any portion of the Property so long as such work is undertaken and carried out (i) with the minimum practical disturbance to persons Page 66 of 9389 DRAFT' -12AL20211/612022 occupying other portions of the Property; (ii) in such a way as does not violate the rights of any Person under other provisions of this Declaration; and (iii) in accordance with all applicable restrictions in the Rules, any architectural guidelines, the resolutions of the Board of Directors and the other provisions of this Declaration. The Architectural Review Board may approve temporary structures for construction purposes which may otherwise be in violation of the Governing Documents, the Rules or any Architectural Guidelines. (cc) Lem. No dwelling unit located on a Lot or any portion thereof shall be used or occupied for transient or hotel purposes or in any event leased for an initial period of less than twelve (12) months. No Lot shall be subjected to or used for any timesharing, cooperative, licensing or other short -teen rental or "homestay" arrangement that would entail nightly, weekly, monthly or any other type of revolving or periodic occupancy by multiple Owners, operators, licensees, renters, or timesharing participants. Notwithstanding the foregoing, if a Lot or Parcel is developed for residential apartment use or an assisted or special care use, wherein the Owner's Parcel is not subdivided into Lots, such use may be for a period of less than twelve (12) months. Further, if a Lot or Parcel is developed into a condominium and contains units for lease, such units may be leased for a period of less than twelve (12) months, subject to the governing condominium instruments. No Owner shall lease a Lot other than on a written form of lease: (1) requiring the lessee to comply with the Governing Documents and the Rules; and (2) providing that failure to comply with such documents constitutes a default under the lease. Owners leasing single-family residences and condominium units shall provide the Association with the names of lessees. (dd) Agricultural Use. Please refer to the Code of Development, which sets out permitted agricultural uses and restrictions relating to agricultural uses. These uses and restrictions Page 67 of 9389 DRAFT -12AL20211/612022 may be further limited and regulated by Rules and Regulations pursuant to subsection (c) of this Section 8.1. (ee) Septic Tanks. No septic tank shall be installed, used, or maintained on any Lot. (ft) Antennas and Similar Devices. Only those antennas expressly permitted under the Federal Communications Commission's Over -the -Air Reception Devices (OTARD) Rule implementing Section 706 of the Telecommunications Act of 1996, as amended from time to time, are allowed. All others are expressly prohibited. As of the date of the recording of this instrument, the following are permitted under OTARD: (a) a "dish" antenna that is one meter (39.37") or less in diameter and is designed to receive direct broadcast satellite service, including direct -to -home satellite service, or to receive or transmit fixed wireless signals via satellite; (b) an antenna that is one meter or less in diameter or diagonal measurement and is designed to receive video programming services via broadband radio service (wireless cable) or to receive or transmit fixed wireless signals other than via satellite; (c) an antenna that is designed to receive local television broadcast signals. In addition, antennas covered by the rule may be mounted on "masts" to reach the height needed to receive or transmit an acceptable quality signal (e.g. maintain line - of -sight contact with the transmitter or view the satellite). (collectively, the foregoing are referred to as "Covered Antennas"). The foregoing list is subject to change pursuant to changes in OTARD and/or any other applicable laws. Covered Antennas shall be located in accordance with architectural guidelines adopted by the Architectural Review Board, to the extent such restrictions are not prohibited by the OTARD Rule. Page 68 of 9389 DRAFT' 12AQ0211/612022 (gg) Flags. The United States flag may be displayed on Lots in strict accordance with the United States Flag Code found in Chapter I of Title 4 of the United States Code (4 U.S.C. §1 et seq.) and related Federal regulations and Presidential Orders. Specific restrictions and rules regarding the size, place, duration, and manner of placement or display of the U.S. flag may be set out in the Architectural Guidelines of the Association. Restrictions and rules regarding the display of any other flags, whether governmental, decorative, or otherwise, are governed by the Architectural Guidelines of the Association. Freestanding flag poles are not permitted on any Lot. (hh) Stormwater Management. No changes shall be made to the design of any constructed portion of the stormwater management and/or Best Management Practices (`BMP") facilities for the Property after that portion is conveyed to the Association without prior written approval by the Declarant for so long as the Declarant owns any Lots or Parcels within the Property, and thereafter by the Virginia Department of Environmental Quality ("DE(X). (ii) Solar Panels. Subject to applicable state and federal law and the reasonable size, place, and manner restrictions of the Architectural Guidelines, solar panels are permitted on rooftops and in fenced yard areas. Section 8.2. Maintenance of Prouerty. (a) Owner Obligation. To the extent that exterior maintenance is not provided for in this Declaration or in a Supplemental Declaration, each Owner shall keep all Lots and Parcels owned by him, and all Improvements therein or thereon, in good order and repair, free of debris, all in a manner and with such frequency as is acceptable to the Association and consistent with a first -quality development, any Rules adopted by the Association, and the Architectural Guidelines adopted by the Association. Page 69 of 9389 DRAFT' 12FF2021.1/6/2022 (a)(b) Reconstruction and Repair. If a building or other major Improvement located upon a Lot or Parcel is damaged or destroyed, the Owner thereof shall restore the site either (i) by repairing or reconstructing such building or other major improvement, or (ii) by clearing away the debris and restoring the site to an acceptable condition compatible with the remainder of the Property. The owner shall secure the area with barriers and install signage to discourage trespassers. Unless the Architectural Review Board permits a longer time period, such work must be commenced within sixty (60) days after the date of the casualty and substantially completed within twelve (12) months after the date of the casualty. (b)(cl Failure to Maintain. In the event an Owner shall fail to maintain his Lot or Parcel and the Improvements situated thereon as provided herein, the Association, after notice to the Owner and required due process proceedings shall have the right, but not the obligation, to enter upon such Lot or Parcel to correct such failure. All costs related to such correction shall become a special assessment upon such Lot or Parcel and as such shall be regarded as any other assessment with respect to lien rights of the Association and remedies provided herein for non- payment. Section 8.3. Security. Neither the Association nor Declarant shall be held liable for any loss or damage by reason of failure to provide security or ineffectiveness of security measures undertaken. All Owners, tenants, guests, and invitees of any Owner, as applicable, acknowledge that the Association, Declarant and committees established by any of the foregoing entities, are not insurers and that each Owner, tenant, guest, and invitee assumes all risk or loss or damage to persons, to structures or other improvements situated on Lots and Parcels, and to the contents of any Improvements situated on Lots and parcels and further acknowledge that Declarant has made Page 70 of 9389 DRAFT' -12AL20211/612022 no representations or warranties, nor has any Owner, tenant, guest, or invitee relied upon any representations or warranties, expressed or implied, including any warranty or merchantability or fitness for any particular purpose relative to any security measures recommended or undertaken. Section 8.4. Conveyance to the County or Commonwealth. Any property conveyed to the County of Albemarle or to the Commonwealth of Virginia for roads or other public use shall not be subject to easements, covenants, conditions, restrictions or obligations created herein and any such easements, covenants, conditions, restrictions or obligations established herein shall be subordinate to any easements or other property rights existing or hereinafter conveyed to the County of Albemarle or the Commonwealth of Virginia. This requirement cannot be deleted or amended without the prior written approval of the director of planning. ,Section 8.5 Special Exterior Maintenance Provisions for Habitat Lots, Notwithstanding r�aeeee: No undeflim Fa atted: Justified, Indent: Rmt line: 0.5" anything in this Declaration to the contrary, and separate and apart from its obligation to maintain rwmattey: No underlie Common Area landscaoe easements. the Association shall orovide exterior maintenance for all - - ramatted: Mo undedtrre single-family detached, attached, and townhome Pabitat Lots including tainting repairing,__ , - { Formatted: No underline J replacement and care of roofs, gutters, downspouts, and exterior building surfaces, together with care, cutting and replacement of all trees, shrubs, grass, walks, all parking areas (if any) associated with such�Ia_bitat Lots, and all other exterior improvements with the exception that the Association _ _ - Formatted: Mo underlie shall not maintain and replace: (i) glass surfaces and broken window glass in individual living units; - - Formatted: JUSUW 60 light bulbs for exterior light fixtures or, " (replacement bulbs must be consistent with existing bulbs): (in) individual gardens, shrubs, and trees planted by the Owner, Page 71 of 9389 DRAFT' -12AQ0211/6/2022 (iv) driveways'^^^'^- a^.�a.�-.^'' T. If any such need for maintenance or repair is caused by the willful or negligent act of the Owner, the Owner's family, tenant, or guests, or invitees, the cost of such maintenance or repairs shall be charged to the Lot as a special assessment.. 'a-d to and become ^ Ban of the Assessment__ - mama: No undedLoe to which ^^-a ^^rn^ ar Lot is sub ect. Otherwise, the maintenance, repairs, and replacement described in this paragraph shall be funded by nert.d^. ARgARRmant AA ^^^ssme-'ss described in Section 6_3 For Habitat Lots developed into condominiums, the -- Fomrattea: Not Highlight ` _ Fomramd: No underline above described exterior maintenance will be provided by the applicable condominium association goveming the condominium and not by the Association. ARTICLE IX EASEMENT'S Section 9.1. Utility Easements. Declarant reserves perpetual easements, rights and privileges to install, maintain, repair, replace and remove poles, wires, cables, conduits, pipes, mains, pumping stations, siltation basins, tanks and other facilities, systems and equipment for the conveyance and use of electricity, telephone service, sanitary and storm sewer, water, gas, cable television, drainage and other public conveniences or utilities, upon, in or over those portions of the Property (including Lots, Parcels, Common Areas, Limited Common Areas and Neighborhood Common Areas) as Declarant, the Landowners and their respective successors or assigns may consider to be reasonably necessary (the "Utility Easements"). However, after Declarant ceases to be the Owner of a Lot or Parcel, no Utility Easements shall be placed on the portion of such Lot or Parcel on which is already located a building which was either constructed by Declarant or approved by the Architectural Review Board or on which a building is to be located pursuant to Plans approved by the Architectural Review Board or on any portion of a Lot which is not Page 72 of 9389 DRAFT' -12AQ0211/612022 described or shown as an easement area on a recorded subdivision plat or Supplemental Declaration applicable to such Lot or Parcel. The Utility Easements shall include the right to cut trees, bushes or shrubbery and such other rights as Declarant or the applicable governmental authority or utility company providing the utilities may require. The utility lines installed pursuant to the Utility Easements may be installed above or below ground, except as otherwise provided in any Supplemental Declaration. Declarant shall have the right to convey Utility Easements to other Owners, to Parcel Developers, to governmental authorities or utility companies, to the Association and to any other party or parties. Section 9.2. Erosion Control. Declarant reserves a perpetual easement, right and privilege to enter upon any Lot, Parcel, Common Area, Limited Common Area or Neighborhood Common Area, and the Association is granted a perpetual easement, right and privilege to enter upon any Lot or Parcel, either before or after a building has been constructed thereon or during such construction, for the purpose of taking such erosion control measures as Declarant or the Association deems necessary to prevent or correct soil erosion or siltation thereon; provided, however, that Declarant or the Association shall not exercise such right unless it has given the Owner of the Lot or Parcel or the Association (as to the Common Area, Limited Common Area and the Neighborhood Common Area) at least ten days' prior notice thereof and the Owner or the Association, as the case may be, has failed to take appropriate action to correct or prevent the erosion or siltation problem. The cost incurred by the Association or by Declarant in undertaking such erosion control measures on any Lot or Parcel shall become a special assessment on such Lot or Parcel and shall constitute a lien against such Lot or Parcel and shall be collectible in the manner Page 73 of 9389 DRAFT' -12AQ0211/6/2022 provided herein for the payment of assessments. This Section shall not apply to Lots or Parcels owned by Declarant. Section 9.3. Maintenance of Lots and Parcels. Declarant reserves the perpetual easement, right, and privilege, and the Association is granted the perpetual easement, right, and privilege, to enter on the unfenced portions of any Lot or Parcel to perform the lawn maintenance described in Section 5.1 and the exterior maintenance described in Section 8.5. Further, the Declarant reserves the perpetual easement, right, and privilege, and the Association is granted the perpetual easement, right, and privilege, to enter on any Lot or Parcel, after at least five days' notice to the Owner thereof, for the purpose of such other mowing, removing, clearing, cutting or pruning underbrush, weeds or other unsightly growth, dispensing pesticides, herbicides and fertilizer and grass seed, removing trash and taking such other action as the Declarant or the Association may consider necessary to correct any condition which detracts from the overall beauty of the Property or which may constitute a hazard or nuisance. The cost incurred by the Association in taking such action (including any overhead costs associated therewith) shall constitute a special assessment on the Lot or Parcel and shall be collectible in the manner provided herein for the payment of assessments. This Section shall not apply to Lots or Parcels owned by Declarant. Section 9.4. Construction Easements and Rights. Notwithstanding any provision of this Declaration or of any Supplemental Declaration, so long as Declarant is engaged in developing or improving any portion of the Property or the Additional Area, Declarant shall have an easement of ingress, egress and use over any lands not conveyed to an Owner for (i) movement and storage of building materials and equipment, (ii) erection and maintenance of directional and promotional signs and (iii) conduct of sales activities, including maintenance of model residences. Page 74 of 9389 DRAFT -12AQ0211/6/2022 Section 9.5. Right of Entry for Governmental Personnel. A right of entry on any Common Area, Limited Common Area and Neighborhood Common Area is hereby granted to personnel of the County in the lawful performance of their official duties, including but not limited to: law enforcement officers and fire and rescue personnel as needed to lawfully carry out their duties, including but not limited to enforcement of cleared emergency vehicle access; public utility and public works vehicles in the performance of their installation, maintenance and repair duties; and inspections personnel for the purpose of reviewing the Association's proper maintenance of the Common Area, Limited Common Area and Neighborhood Common Area, Section 9.6. Easement for Landscaping. Sims and Related Purposes. There shall be and is hereby reserved to Declarant for so long as it retains its rights as Declarant, and to the Association, a non-exclusive easement over all Lots, Parcels, Common Area, Limited Common Area and Neighborhood Common Area for a distance of ten (10) feet behind any Lot or Parcel line which parallels, and is adjacent to, a street (whether public or private) for the purpose of erecting and maintaining street intersection signs, directional signs, temporary promotional signs, plantings, street lights, entrance features and/or "theme areas," lighting, stone, wood, or masonry wall features and/or related landscaping. Exercise of this easement shall be with the consent of the Owner of the affected Lot or Parcel, or the Architectural Review Board if such Owner does not consent. Section 9.7. Sight Distance Easements. Declarant reserves for itself and the Association a perpetual easement over all those areas within the development shown and identified on the Subdivision Plat as "Sight Distance Easement" (with or without a specific width labelled). Sight distance easements are for the purpose of establishing and maintaining unobstructed lines of sight Page 75 of 9389 DRAFr -12FF20211/6/2022 along roadways for the safety of the traveling public at an elevation of no less than thirty (30) inches above ground level in conformance with applicable Virginia Department of Transportation standards. Within each such sight distance easement on any Lot, the Owner(s) of such Lot shall not install any improvements or structure of any kind, or plant any vegetation, that obstructs the line of sight at thirty (30) inches above ground level. The Association and the County of Albemarle shall have the right to trim, cut, and remove trees, shrubbery, fences, structures, and other obstructions within the sight distance easement areas that exceed the height of thirty (30) inches. Section 9.8. Retaining Wall Easements. Declarant reserves for itself and the Association a perpetual easement over those areas of certain Lots shown and identified on the Subdivision Plat as "Retaining Wall Maintenance Easement" for the purpose of ingress, egress, and -maintenance, repair, and replacement, if necessary, of retaining walls within such easements. The width of the wall maintenance easements is as shown on the Plat: width may be variable but will be a minimum of five feet W). The Declarant and the Association, as its successor, shall be solely responsible foFinaintairung in perpetuity all such retaining walls shown on the approved site plan to a standard that, at a minimum, ensures that they will remain in substantially the condition they were in when approved by the County (if installed prior to Plat approval) or the condition they are to be in when the surety for their installation is releasedin pewettkity within seeh easements. Section 9.9. Access Easements. °-- the h"""" of the ' 'The Declarant hereby establishes various easements for ingress and egress over certain Lots for pedestrian and vehiculaz access as follows: (i) (+)-A seven (7) foot perpetual pedestrian access easement is hereby— - - F�ateed: Heading 4, mdem: Left r First hm: o.s^ reserved over Lot 18 and Lot 19 is hereby reserved for the benefit of theall Owners Page 76 of 9389 DRAFT' -12AQ0211/612022 and occupants of ha4s 19 and 19 to __,,.:a., _a:_.a Hill 6aAe of the community to provide a pedestrian connection between Cardinal Hill Lane and the Village One Open Space; and, a five (5) foot perpetual pedestrian easement is hereby reserved between Lot I D and Lot 2A over that portion of TMP 90A1-1E identified as Block 8 for the benefit of all Owners and occupants of the community to provide a pedestrian connection between Horizon Road and Block 8. Within such access easements, Tthe Association shall mMaintainenanee, repair, and replacement of theall dFiveway—walkways, stairs, and associated wing wall improvements ,..:thin _.._w appeqq eaqemen4 .hall be the _ _sibilit„ of the A..seei.t,,._ in perpetuity to a standard that, at a minimum, ensures that these improvements will remain in substantially the condition they were in when approved by the County if the improvement was installed prior to the Plat approval or the condition such improvement is to be in when applicable surety is released. ii (4)—A reciprocal twenty (20) foot perpetual access easement is hereby reserved over Lot 14 through Lot 23, inclusive, to provide vehicular and pedestrian access to the rear of said Lots from Cardinal Hill Lane -end �%ithm sueh aeeess easement shall be the Fespeasibility of the A sseeia=,t --. A reciprocal twenty (20) foot perpetual access easement is hereby reserved over Lot 8 through Lot 13, inclusive, to provide vehicular and pedestrian access to said Lots from Cardinal Hill Lane. This 20' private access easement is Page 77 of 9389 DRAFT -12FF20211/6/2022 also an emergency access easement that continues beyond the northern boundary of Phase 1 into Phase 2 of Southwood and has been granted to the County deed. The Association shall mMaintainenance, repair, and replacement -of theme - - Fo ateea: Heading 4, Indent: Left I", First line: 0.5" travelway improvements within the access easements described in subparagraphs (i) and (in) of this Section 9.9 in perpetuitvshall he the Assesiatien. The travelways shall be constructed and maintained in accordance with the "Heavy Duty Asphalt Pavement Section" on the approved site plan. The Association shall maintain thiese travelways to a standard that, at a minimum, ensures that itth�e y will remain in substantially the condition i"vathey weres in when approved by the County if the improvement was installed prior to the Plat approval or the condition it is to be in when the surety wais released. Thiese travelways shall at all time be maintained so that it4sthey are safe and convenient for passenger automobiles and emergency vehicles at all times except in severe temporary weather conditions. For purposes of this instrument, "maintenance" includes the maintenance of the private travelways, and all curbs curbs and gutters, drainage facilities, utilities, dams, bridges and other private street improvements, and the prompt removal of snow, water, debris, or any other obstruction so as to keep the travelways or alleys reasonably open for usage by all vehicles, including emergency services vehicles. No public agency, including the Virginia Department of Transportation and the County of Albemarle, Virginia, will be responsible for maintaining any improvement identified herein. Page 78 of 9389 DRAFT -12AL2021.1/612022 Section 9.10. Easement for Use of Water Bodies and Irri ap tiorL There is hereby reserved by the Declarant a perpetual easement and right to use all lakes, ponds, creeks or water bodies lying within the Common Area, Limited Common Area or Neighborhood Common Area for the purposes of irrigation of other parcels now, or in the future, owned by Declarant or third parties. The levels of water in any such lakes, ponds, creeks or water bodies may fluctuate and no representation or guarantee is made with respect to the continued existence of any water level, nor shall the Declarant or the Association have any liability or obligation to any Owner, regarding the water level or the appearance of any water body due to the fluctuation of such water level. Declarant retains: (i) the right to lay, install, construct and maintain an irrigation system, including underground irrigation lines, over all Common Areas, Limited Common Areas and Neighborhood Common Areas or landscaping easement areas granted to the Association for the purpose of providing irrigation to other parcels which may or may not be a part of the Property, and (ii) the right to enter onto the Common Area, Limited Common Area and Neighborhood Common Area and to maintain the lakes, ponds, creeks or water bodies as may be necessary to insure that all such water bodies continue to provide a sufficient source of water to satisfy the irrigation needs described in this section. Nothing described in this section shall impose any obligation on Declarant to maintain the lakes, ponds, creeks or water bodies, such obligation being the obligation of the Association. Pursuant to Section 10.11, Declarant shall have the right to transfer all or a portion of the rights retained by Declarant under this section to third parties. Section 9.11. Easement for Encroachment. Each Lot, each Parcel, the Common Areas, the Limited Common Areas and the Neighborhood Common Areas are hereby declared to have an easement of up to one foot in width over all adjoining Lots, all adjoining Parcels, the Common Page 79 of 9389 DRAFT' -12AQ0211/612022 Areas, the Limited Common Areas and any Neighborhood Common Areas for the purpose of accommodating any encroachment due to engineering errors, errors in original construction, settlement or shifting of a building, or any other similar cause, and any encroachment due to building overhang or projection. There shall be valid easements for the maintenance of said encroachments so long as they shall exist, and the rights and obligations of Owners shall not be altered in any way by said encroachment, settling or shifting; provided, however, that in no event shall a valid easement for encroachment be created in favor of an Owner or Owners if said encroachment occurred due to the willful act or acts with full knowledge of said Owner or Owners. In the event a structure on any Lot or Parcel is partially or totally destroyed, and then repaired or rebuilt, the Owners of each Lot or Parcel agree that minor unintentional encroachments over adjoining Lots shall be permitted, and that there shall be valid easements for the maintenance of said encroachments so long as they shall exist. Section 9.12. Easements to Serve Additional Area. The Declarant hereby reserves for itself and its respective duly authorized agents, representatives, employees, successors, assigns, licensees, and mortgagees, an easement over the Common Area and Neighborhood Common Area for the purposes of enjoyment, use, access, and development of the property described in Exhibit C, whether or not such property is made subject to this Declaration. This easement includes, but is not Invited to, a right of ingress and egress over the Common Area, Neighborhood Common Area and Limited Common Area for construction of roads and for connecting and installing utilities on such property. Declarant agrees that it and its respective successors and assigns shall be responsible for any damage caused to the Common Area, Neighborhood Common Area and Limited Common Area as a result of vehicular traffic connected with development of such Page 80 of 9389 DRAFT' -12FF20211/6/2022 property. Declarant further agrees that if the easement is exercised for permanent access to such property and such property or any portion thereof is not made subject to this Declaration, the Declarant and its respective successors and assigns shall enter into a reasonable easement agreement with the Association to share the cost of maintenance of any access roadway serving such property. ARTICLE X GENERAL PROVISIONS Section 10.1. Duration. The covenants and restrictions of this Declaration shall run with and bind the Property for a tern of twenty-five (25) years from the date this Declaration is recorded, after which time they shall be automatically extended for successive periods of twenty- five (25) years, subject to termination by amendment as provided in Section 10.2 below. Notwithstanding the foregoing, the provisions of Section 5.2 and Article IX 9.5 shall be perpetual except to the extent a shorter period is specified herein. Section 10.2. Amendments. Except as otherwise set forth in this Declaration and subject to Section 10.4 of the Bylaws, this Declaration may be amended either (i) by Declarant without the consent of any other Owners in order to correct typographical errors, inconsistent references, scrivences errors, grammatical mistakes, and incorrect or ambiguous punctuation, for so long as Declarants Class B membership continues or (ii) by a vote of two-thirds of the sum of. (A) the Class A votes (including Declarant as to Class A votes held by Declarant), plus (B) the Class B votes (if any). Notwithstanding the foregoing, the provisions of Articles III and DC and Sections 4.2, 5.8, 6.8, and this Section 10.2 may not be amended in any event without the written consent of Declarant regardless of whether the Class B membership has terminated; the provisions of Section 9.5, Article X and Article XI, may not be amended without the consent of the Director of Page 81 of 9389 DRAFT' -12FF2B21.1/6/2022 Planning for Albemarle County; and no amendment to terminate this Declaration shall be effective without the consent of the Director of Planning for Albemarle County. In addition, Declarant shall have the right without the consent of any other Owners to amend this Declaration in any respect as may be necessary or appropriate in order for this Declaration or the Property to comply with applicable laws now or hereafter enacted or to satisfy the requirements of any Federal Mortgage Agency, including, without limitation, the Veterans Administration, the Federal Home Loan Mortgage Corporation, the Federal National Mortgage Association, or the U.S. Development of Housing and Urban Development, as the same may be amended from time to time, with respect to their purchase or guaranty of mortgage loans secured by Lots. Section 10.3. Enforcement. Declarant, the Association or any Owner shall have the right to enforce, by any proceeding at law or in equity, all restrictions, easements, conditions, convents, reservations, liens and charges now or hereafter imposed by the provisions of this Declaration or any Supplemental Declaration. Without limiting the generality of the foregoing, if any Owner fails to comply with any of the provisions of this Declaration or any Supplemental Declaration and such failure continues for an unreasonable period of time as determined by the Board of Directors or its designated agent, in the Board's or agent's sole discretion after notice thereof is given to the Owner, then either Declarant or the Association may, but without any obligation to do so, take such action as either of them considers necessary or appropriate (including, without limitation, entering the Owner's Lot or Parcel) to correct the noncompliance; provided, however, that judicial proceedings are instituted before any Improvements are subsequently altered or demolished. The cost incurred in taking such action shall constitute a special assessment upon the Owner's Lot(s) and/or Parcel(s) and shall be collectible in the manner provided herein for the payment of Page 82 of 9389 DRAFT' 12AL20211/6/2022 assessments. Failure by the Declarant, the Association or any Owner to enforce any provision of this Declaration or any Supplemental Declaration shall in no event be deemed a waiver of the right to do so thereafter. Section 10.4. Limitations. As long as the Declarant has an interest in developing the Property, any commercial property adjacent to the Property and/or the Additional Area, the Association may not use its financial resources to defray any costs of opposing the development activities so long as they remain consistent with the general intent of this Declaration. Nothing in this Section shall be construed to limit the rights of Members to act as individuals or in affiliation with other Members or groups. Section 10.5. Severability. Invalidation of any one of these covenants or restrictions by judgment or court order shall in no way affect any other provisions which shall remain in full force and effect. Section 10.6. Conflict. In the event of conflict among the Governing Documents, this Declaration shall control, then applicable Supplemental Declarations, then the Articles, then the Bylaws except that in all cases where the Governing Documents may be found to be in conflict with statute, the statute shall control. Section 10.7. Interpretation. Unless the context otherwise requires, the use of the singular shall include the plural and vice versa; the use of one gender shall include all genders; and the use of the term "including' shall mean 'including, without limitation." The headings used herein are for indexing purposes only and shall not be used as a means of interpreting or construing the substantive provisions hereof. Page 83 of 9389 DRAFT' 12AL2021.1/612022 Section 10.8. Use of the Words "Southwood" or "Southwood Communitv." No person or entity shall use the words "Southwood" or "Southwood Community" or any derivative thereof in any printed or promotional material without the prior written consent of Declarant. Section 10.9. Aoorovals and Consents. All approvals and consents required or permitted by this Declaration (other than approvals or consents given by Members in a vote conducted in accordance with the Bylaws) shall be in writing, shall be signed by the party from whom the consent or approval is sought and, unless otherwise provided herein, may be withheld by such party in its sole discretion. Section 10.10. Assignment of Declarants Rights. Any and all rights, powers, easements and reservations of Declarant set forth herein may be assigned in whole or in part, at any time or from time to time, to the Association, to another Owner, to a Parcel Developer or to any other party in Declaranfs sole discretion. Each such assignment shall be evidenced by an instrument which shall be signed by Declarant and its assignee and recorded in the Clerks Office. Section 10.11. Successors and Assigns. The provisions hereof shall be binding upon and shall inure to the benefit of Declarant, the Association and (subject to Article III hereof) the Owners and their respective heirs, legal representatives, successors and assigns. Section 10.12. Compliance with Pro e�rtv Owners' Association Act, The Association shall be subject to and comply with the Virginia Property Owners' Association Act as set out in §55.1- 1800 et. seq., in the Code of Virginia, as amended. ARTICLE XI DISSOLUTION OF THE ASSOCIATION The Zoning Ordinance and proffers applicable to the Property anticipate the existence of a properly owners association to maintain certain amenities. Accordingly, the future dissolution of Page 84 of 9389 DRAFT' -12AL20211/612022 the Association or disposal of real property would be conditioned on the amendment of the proffers. In addition, dissolution of the Association would require the vote of more than two-thirds (2/3) of the votes, in person or by proxy, of the Class A Members and the vote of the Class B Member at a duly held meeting at which a quorum is present. Prior to dissolution of the Association, other than incident to a merger or consolidation, the assets of the Association shall be offered for dedication to the locality in which they are situated In the event that such dedication is refused acceptance upon dissolution, such assets shall be granted, conveyed and assigned to any nonprofit corporation, association, trust or other organization to be devoted to similar purposes. ARTICLE XII NOTICES All notices, demands, requests and other communications required or permitted hereunder shall be in writing and shall either be delivered in person or sent by overnight express courier or by U.S. first class mail, postage prepaid. Notices to the Declarant shall be sent c/o Greater Charlottesville Habitat for Humanity, 967 2nd St SE, Charlottesville, Virginia 22902; or to such other address as the Declarant shall specify by executing and recording an amendment to this Declaration, which amendment shall not require the approval of any other parties as provided in Section 10.2. Notices to the Association or to Owners (other than Declarant) may be sent to the address which the Bylaws provide shall be used for them. All such notices, demands, requests and other communications shall be deemed to have been given when sent to the appropriate address specified above. Rejection or other refusal to accept shall not invalidate the effectiveness of any notice, demand, request or other communication. Notwithstanding the foregoing, any notice of the filing of a memorandum of assessment lien shall be sent in the manner required by § 55.1-1833 of the Virginia Code. Page 85 of 9389 DRAFT' --12AQ0211/6/2022 [SIGNATURES FOLLOW ON NEXT PAGE] Page 86 of 9389 DRAFT -12AQ0211/6/2022 WrfNESS the following signatures and seals as of the date first above written. SOUTHWOOD CHARLOTTESVILLE, LLC, a Virginia limited liability company By: Daniel H. Rosensweig, Manager COMMONWEALTH OF VIRGINIA CITY OF CHARLOTfEVILLE, to -wit: The foregoing Declaration of Covenants and Restrictions was acknowledged before me this _ day of , 202�2, by Daniel H. Rosensweig, Manager of Southwood Charlottesville, LLC, a Virginia limited liability company, on behalf of the company. [SEAL] My commission expires: Registration No: W591895W1 Notary Public Page 87 of 9389 DRAFT iiu10111/6/2022 EXHIBIT A LEGAL DESCRIPTION OF PROPERTY Page 88 of 9389 DRAFT 12u1n111/6/2022 EXHMIT A To DEED dated February 28, 2007, by and between SOUTHWOOD, INC. and SOUTMWOOD CHARIXY=VTI I E, LLC ALL THOSE two certain parcels of land lying and being situated in Albemarle County, Virginia, and more particularly described as being Parcel 1 (84.1 acres, more or less) and parcel 2 (4.0 acres, more or less) on the plat of Soudiwood Mobile Home Park, dated August 24, 1976, and recorded in the Clerk's Office of the Circuit Court of Albemarle County, Virginia, in Deed Book 664, page 447; Parcel I BEING a portion of the same property conveyed to Southwood Mobile Home Estates, Iuc„ a Virginia corporation, by deed from Sue Breeeden Minor dated December 31, 1979, and reco-&d in the aforesaid Clerk's Office in Deed Book 706, page 644; and Parcel 2 BEING the same property as conveyed by quitclaim deed to Southwood, Inc., a Virginia corporation, from Sum B. Minor and Jahn M. Atkinson, Successor Trustees of the Forest Lodge Land Ttusi, dated Septfmber 25, 2006, and recorded in the aforesaid Clerk's Office in Dead Book 3303, page 224. NOTE., Phase I includes only a portion of Ter Map parcel 90A1-I1). as shown on the subdivision plat, and the remainder is defined as Additional Land. Page 89 of5;=i DRAFT 12u1n111/6/2022 TB ACT THREF 9MP # 09000-00-OM I AO) ALL THAT certain tract or parcel of land situated in Albemarle County, Virginia, on the southeastern side of State Route 631, shown and described as Parcel A, containing 8.69 acres, more or less, on a plat by William S. Roudabush, Jr., Certified Land Surveyor, dated October 11, 1974, and recorded in the aforesaid Clerk's Office in Deed Book M8, page 289; LESS AND EXCEPT that certain parcel of land conveyed to the Commonwealth of Virginia for improvements to State Route 631, recorded in Deed Book 1185, page 440. BEING the same property conveyed to Southwood Mobile Home Estates, Inc, a Virginia corporation, by deed from Sue Breeden Minor, dated December 31, 1979, and recorded in the aforesaid Clerk's Office it Deed Book 706, page 642. TRACT FOUR (TMP# 090A0-00-WOO1CO) ALL THAT certain tract or parcel of land situated in Albemarle County, Virginia, containing 0.459 acre, more or less, as shown in Detail F on a plat by Thomas B. Lincoln Land Surveyor, Inc. entitled, `Plat Showing a Boundary Survey of Tax Map 90 Parcels 5, 61), 15A and 17D, Tax Map 90A, Parcels ]A, 1B, 1C and 3, Tax Map 90A1, Parcels 1 and IE, Property Belonging to Forest Lodge Land "Trust Lying Between State Routes 20 and W 1, Albemarle County, Virginia," dated October 9, 2004, last revised October 13, 2005, and recorded in the aforesaid Clerk's Office in peed Book 3092, at page 324. BEING the same property conveyed to Southwood, Inc., a Virginia corporation, by quitclaim deed from Forest Lodge, 11C, a Virginia limited liability company, dated February 26, 2007 and recorded in the aforesaid Clerk's Office in Deed Book jj E page A. Page 90 of 1i;S9 DRAFT' tnu10111/6/2022 AS TO PARCEL 07600-00-00-051A0: Al that certain lot or parcel of land, with improvements thereon and appurtenances thereto, situated in the County of Albemarle, Vlrglnla, on the southeast side of State Route 631, containing 1.234 Acres, more or less, as shown an a plat by Letts, Austin & Associates, dated April 2, 2003, and recorded in the Clerk's Office of the Circuit Court of Albemarle County Virginia, In Deed Book 2911, page 743. The subject property Is known by present street numbering as 699 Old Lynchburg Road, Charlottesville, VA22902. AS TO PARCEL 09DAl-00-00-001 EO All that certain lot or parcel of land, together with any improvements thereon and all appurtenances Hereunto appertaining, situate, lying, and being in He Scottsville Magisterial District, Albemarle County, Virginia, containing 23.333 acres according to survey, be the same ever so much more or less, and more particularly described on that certain plat of survey made by Roudabush, Gale &Associates, Inc., dated June 24, 2015, last revised July 22, 2016, entitled "PLAT SHOWING A BOUNDARY LINE ADJUSTMENT OF PARCEL'X; 21.954 AC. A PORTION OF PARCEL 5 OF TAX MAP 90 ADDED TO PARCEL 1 E OF TAX MAP 90 LOCATED ON STATE ROUTE 631. OLD LYNCHBURG ROAD BISCUIT RUN STATE PARK, SCOTTSVILLE MAGISTERIAL DISTRICT, ALBEMARLE COUNTY, VIRGINIA", a copy of which is attached hereto. Reference to said plat is recorded with Deed recorded in Deed Body 4773, page 328. Page 91 of 9389 DRAFT' iiu10111/6/2022 EXHHIIT B SUBDIVISION PLAT Page 92 of 9389 DRAFT riu1nerl/6/2022 EXHIBIT C ADDITIONAL AREA TMP 090A1-00-00-001DO !REMAINDER All those two certain parcels of land lying and being situated in Albemarle County, Virginia, and more particularly described as being Parcel 1 (84.1 acres, more or less) and Parcel 2 (4.0 acres, more or less) on the plat of Southwood Mobile Home Park, dated August 24, 1976, and recorded in the Clerk's Office of the Circuit Court of Albemarle County, Virginia, in Deed Book 664, page 447; BEING a portion of the property conveyed to Southwood Charlottesville, LLC, a Virginia limited liability company, by deed of Southwood, Inc., a Virginia corporation, dated February 28, 2007, recorded in said Clerk's Office in Deed Book 3375, page 63; AS MODIFIED by the boundary line adjustment shown on that certain plat entitled, "PLAT SHOWING BOUNDARY LINE ADJUSTMENT ON THE LANDS OF SOUTHWOOD CHARLOTTESVILLE, LLC, TAX MAP PARCELS 90-1A, 90A1-OE AND 90A1-1D, SCOTTSVILLE MAGISTERIAL DISTRICT, ALBEMARLE COUNTY, VIRGINIA," DATED January 17, 2019, last revised June 4, 2019, recorded with a Certificate of Plat, dated June 19, 2019, recorded in the aforesaid Clerk's Office in Deed Book 5181, page 707. TMP 090AO-00-00-00400 All that certain parcel of land lying and being situated in Albemarle County, Virginia and more particularly described as being Parcel (4.0 acres, more or less) on the plat of Southwood Mobile Home Park, dated August 24, 1976, and recorded in the Clerk's Office of the Circuit Court of Albemarle County, Virginia, in Deed Book 664, page 447; BEING a portion of the property conveyed to Southwood Charlottesville, LLC, a Virginia limited liability company, by deed of Southwood, Inc., a Virginia corporation, dated February 28, 2007, recorded in said Clerk's Office in Deed Book 3375, page 63. TMP 0900-00-00-OOICO All that certain tract or parcel of land situated in Albemarle County, Virginia, containing 0.459 acre, more or less, as show in Detail F on a plat by Thomas B. Lincoln Land Surveyor, Inc., entitled, "PLAT SHOWING A BOUNDARY LINE SURVEY OF TAX MAP 90 PARCELS 5, 6D, 15A AND 17D, TAX MAP 90A, PARCELS IA, 1B,1 C AND 3, TAX MAP 90A1, PARCELS I AND IE, PROPERTY BELONGING TO FOREST LODGE LAND TRUST LYING BETWEEN STATE ROUTES 20 AND 631, ALBEMARLE COUNTY, VIRGINIA," dated October 9, 2004, last revised October 13, 2005, and recorded in the aforesaid Clerk's Office in Deed Book 3092, at page 324; BEING the same property conveyed to Southwood Charlottesville, LLC, a Virginia limited liability company, by deed from Southwood, Inc., a Virginia corporation, dated February 28, 2007, recorded March 1, 2007 in the Clerk's Office of the Circuit Court, Albemarle County, Virginia, in Deed Book 3375, page 63. (4� Page 93 of 9389