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HomeMy WebLinkAboutSUB201700005 Other 2017-07-11Community Development Document Review County Attorney's Office PROJECT You have Drainage easement M review the attached development document identified below: Shared parking agreement/easement Open space/greenway easement Dedication of right-of-way Parcel determination Other: The document' : v is approved is approved with minor edits as noted on the attached S I M M06 Lee let is not approved because: _: Signatures or acknowledgement need to be redone (see comment below) _: Legal description needs to be revised (see comment below) _: Other (see comment below) If the document is approved, was submitted with the applicants' signatures, and is one to which the County is a party, signatures indicating this office's approval as to form and the County Executive's approval or acceptance on behalf of the County are provided. If the document did not include the applicants' signatures, a final version of the document with the required signatures may now be submitted. Date: J C. Blair, II Meouty County Attorney Phone COUNTY OF ALBEMARLE Department of Community Development 401 McIntire Road, Room 227 296-5832 Charlottesville, Virginia 22902-4596 C- Date: June 26, 2017 John Blair County Attorney's Office 401 McIntire Road Charlottesville, VA 22902 Regarding: Project Name: SUB201700005- Glenmore K2C-II, Phase 1 Final Plat Date Submitted: 06/26/2017 Dear Mr. Blair: The applicant has prepared and submitted a Declaration of Covenants, Conditions, Restrictions, and Easements for the above named project. Please review this document at your earliest convenience. Tha s, Cameron Langille Senior Planner Ext. 3432 972-41 Checklist for Maintenance Agreements File # Project Name: l3"lPJ1tV of 14-317 Instrument evidencing maintenance of certain improvements. If the subdivision will contain one (1) or more improvements that are not to be maintained by the county or any authority or other public agency, the subdivider shall submit with the final plat an instrument assuring the perpetual maintenance of the improvement, as follows: A. The instrument shall, at a minimum contain: (1) Identify the plat to which the instrument applies; if the plat has been recorded, the identification shall include a deed book and page number. T b&, ,IuP P-6Vf 4 i5 lk f Inu I pWf , n reutw, s &WW a (2) State that the improvement will be maintained in perpetuity. ewyc 2[A `•p/' (3) State that the improvement will be maintained to a standard that, at a minimum, assures that it will remain in substantially the condition it was in when approved by the county; for a private street, shared driveway, or alley, the instrument also shall state verbatim: "The travelway shall at all times be maintained so that it is safe and convenient for passenger automobiles and emergency vehicles at all times except in severe temporary weather conditions." P&4e G (4) If the instrument pertains to the maintenance of one or more private streets, alleys or shared driveways, it shall define "maintenance" by stating verbatim: "For purposes of this instrument, `maintenance' includes the maintenance of the private streets or alleys, 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 private street alley reasonably open for usage by all vehicles, including emergency services vehicles." P u y- 6 / (5) Describe the condition of the improvement when it was approved by the county. [� (6) Identify the timing or conditions warranting maintenance of the improvement. rqy C Q ra'ncl f" t6 (7) State a means to collect funds necessary for the cost of maintaining the improvement; at a minimum, the means stated shall include the right of any landowner subject to the instrument to record a lien against a non-contributing landowner, to bring an action at law to collect the funds, or both. (k)e S dlnd {6 (8) Describe how maintenance costs will be prorated among the landowners subject to the instrument (e.g., "equally," or on a percentage basis); if any lot within the subdivision may be further divided, the instrument shall also describe how maintenance costs will be prorated among the landowners after division. QU9e 1D (9) State verbatim: "No public agency, including the Virginia Department of Transportation and the County of Albemarle, Virginia, will be responsible for maintaining any improvement identified herein." J&Je B. The instrument shall be subject to review and approval by the county attorney and shall be in a form and style so that it may be recorded in the office of the clerk of the circuit court of the county. The agent may require that the instrument be on a form prepared by the county attorney. C. For purposes of this section, the term "to maintain," or any derivation of that verb, includes the maintenance, replacement, reconstruction and correction of defects or damage. D. Nothing in this section shall affect the rights of the county reserved under section 14-440. This Document Prepared By: Albemarle County Tax Map Parcel: Brian S. Johnson (VSB #74484) 093A5-00-00-00100 Woods Rogers PLC 123 E. Main Street, Fifth Floor Charlottesville, Virginia 22902 GLENMORE HIGHLANDS an Albemarle County Neighborhood DECLARATION OF COVENANTS, CONDITIONS, RESTRICTIONS AND EASEMENTS GLENMORE HIGHLANDS HOME OWNERS ASSOCIATION INC. TABLE OF CONTENTS I. Article I - Definitions Page 1.01 Association...................................................................................................... 1 1.02 Board of Directors or Board........................................................................... 1 1.03 Bylaws............................................................................................................. 1 1.04 Common Area................................................................................................. 1 1.05 Declaration...................................................................................................... 2 1.06 Declarant Control Period................................................................................ 2 1.07 Lot or Lots....................................................................................................... 2 1.08 Member........................................................................................................... 2 1.09 Mortgagee....................................................................................................... 2 1.10 Owner or Owners............................................................................................ 2 1.11 Plat.................................................................................................................. 2 1.12 Property........................................................................................................... 2 II. Article II - Property Rights 2.01 Owner's Easements of Enjoyment.................................................................. 3 2.02 Declaration of Use.......................................................................................... 4 III. Article III - Membership and Voting Rights 3.01 Membership.................................................................................................... 4 3.02 Voting Rights.................................................................................................. 4 3.03 Declarant Control Period and Common Area Title Transfer .......................... 5 IV. Article IV - Covenant for Maintenance and Assessments 4.01 Creation of the Lien and Personal Obligation of Assessments ....................... 5 4.02 Purpose of Assessments; Common Area Maintenance Standards .................. 6 4.03 Establishment of Annual General Assessment ............................................... 6 4.04 Establishment of Annual Lot Maintenance Assessments ............................... 7 4.05 Special Assessments for Capital Improvements ............................................. 8 4.06 Rate of Assessment......................................................................................... 8 4.07 Date of Payment of Annual Assessments; Due Dates .................................... 8 4.08 Effect of Non -Payment of Assessments: Remedies of the Association ......... 8 4.09 Subordination of the Lien to Mortgages......................................................... 9 4.10 Exempt Property............................................................................................. 9 4.11 Reserves for Capital Components................................................................... 9 4.12 Initial Working Fund....................................................................................... 10 V. Article V Use Restrictions 5.01 Residential Use and Home Occupation.......................................................... 10 5.02 Exterior Completion........................................................................................ 11 5.03 Signs................................................................................................................ 11 5.04 Nuisance.......................................................................................................... 11 I 5.05 5.06 5.07 5.08 5.09 5.10 5.11 Temporary Structures...................................................................................... Recreational and Other Vehicles.................................................................... Inoperable and Unlicensed Vehicles............................................................... Pets.................................................................................................................. Wood Burning Fireplaces, Stoves, and Firewood; Antennas, Satellite Dishes.............................................................................. Trees Gas Fireplaces ................. 11 11 12 12 12 12 12 5.12 ................................................................................................................ Mailboxes 12 5.13 ........................................................................................................ Fences... .. ...................................... 13 5.14 .................................................................. Garbage Service.............................................................................................. 13 5.15 5.16 Drainage.......................................................................................................... Garages 13 13 5.17 5.18 ........................................................................................................... On -Street Parking............................................................................................ Light Posts 13 13 5.19 ...................................................................................................... Exterior Appearance....................................................................................... 13 5.20 5.21 5.22 5.23 Miscellaneous................................................................................................. Rules, Regulations and Enforcement.............................................................. Applicability................................................................................................... Access to Lots................................................................................................. 13 14 14 14 VI. Article VI — Exterior Maintenance of PropM 6.01 Association Maintenance —Common Areas and Roads ................................. 14 6.02 Association Maintenance—Lots..................................................................... 15 6.03 Owner Maintenance........................................................................................ 15 6.04 Enforcement.................................................................................................... 15 VII. Article VII—Mana eg ment 7.01 Managing Agent.............................................................................................. 16 7.02 Duration of Management Agreement............................................................. 16 7.03 Disclosure Packets.......................................................................................... 16 7.04 Limitation of Liability..................................................................................... 16 0 VIII. Article VIII — General Provisions 16 8.01 Enforcement.................................................................................................... 17 8.02 Severabili 8.03 Duration.......................................................................................................... 17 17 8.04 Amendment..................................................................................................... 18 8.05 Annexation...................................................................................................... 8.06 FHA and VA Approvals................................................................................. 18 19 8.07 Consents by Lenders....................................................................................... 19 8.08 Additional Rights of Mortgagee — Notice ....................................................... 8.09 Mortgagee Notification and Presumptive Approval ....................................... 20 8.10 Casualty 20 ........................................................................................................... 20 8.11 Condemnation or Eminent Domain................................................................ 8.12 Captions and Gender....................................................................................... 20 8.13 Successors and Assigns................................................................................... 20 8.14 Boundary Revisions........................................................................................ 20 IX. Article IX — Easements and Additional Maintenance Covenants 9.01 General Easement .................................................................................... 21 9.02 Crossover Easement......................................................................................... 21 9.03 Blanket Easement............................................................................................. 21 9.04 Easement and Right of Entry of Law Enforcement Officials, Fire Rescue, 21 and Other Emergency Personnel.................................................................... 9.05 Utility Easements............................................................................................. 22 9.06 Drainage Easement 22 9.07 .......................................................................................... Encroachment Easement.................................................................................. 22 9.08 Storm Water Management............................................................................... 23 9.09 Construction and Slope Maintenance Easements ........................................... 23 9.10 Private Road Maintenance Easement............................................................... 23 9.11 Yard Maintenance Easement........................................................................... 23 X. Article X — Dissolution of Association................................................................ 23 XI. Article XI — Financing................................................................... 24 lII GLENMORE HIGHLANDS DECLARATION OF COVENANTS, CONDITIONS, RESTRICTIONS AND EASEMENTS THIS DECLARATION OF COVENANTS CONDITIONS, RESTRICTIONS AND EASEMENTS ("Declaration"), made as of the '� day of July, 2017 by GLENMORE PARTNERS, LLC, a Virginia limited liability company, hereinafter referred to as "Declarant," in accordance with the Property Owners' Association Act, Chapter 26 of Title 55 of the Code of Virginia (1950), as amended (the "Act"). Union Bank & Trust, a Virginia banking corporation (`Bank"), and Union Service Corporation, a Virginia corporation ("Trustee"), join in the execution of this Declaration to evidence, among other things, their consent to the terms and provisions hereof. WITNESSETH: WHEREAS, Declarant is the owner of certain property in the County of Albemarle, Virginia, which is more particularly described on the subdivision plat attached hereto and made a part hereof. NOW, THEREFORE, Declarant hereby declares that all of the Property, as defined hereinafter, shall be held, sold and conveyed subject to the following easements, restrictions, covenants and conditions, which are for the purpose of protecting the value and desirability of, and which shall run with the real property and be binding on all parties having any right, title or interest in the Property, or any part thereof, their heirs, successors and assigns, and shall inure to the benefit of each Owner thereof. ARTICLE I Definitions Section 1.01. "Association" shall mean and refer to the Glenmore Highlands Home Owners Association Inc., a non -stock, non-profit corporation, its successors and assigns. Section 1.02. `Board of Directors" or "Board" shall mean the duly constituted board of directors of the Association. Section 1.03. "Bylaws" shall mean and refer to the duly -adopted bylaws of the Association, as such may be amended from time to time. Section 1.04. "Common Area" shall mean any real property or interest in real property (including any improvements thereon) owned or to be owned by the Association for the common use and enjoyment of the Owners and residents of the Lots including streets, roadways, and trails not dedicated to the County of Albemarle or Commonwealth of Virginia, regardless of whether Page 1 of 28 or how such may be depicted on any recorded subdivision plat of the Property. Section 1.05. "Declarant" shall mean and refer to Glenmore Partners, LLC, its successors and assigns, if such successors or assigns should acquire more than one undeveloped Lot from the Declarant for the purpose of development, but only to the extent that any of the rights, reservations, easements, interests, exemptions, privileges and powers of the Declarant are specifically assigned or transferred to such successors or assigns. Section 1.06. "Declarant Control Period" shall have the meaning set forth in Section 3.03 of this Declaration. Section 1.07. "Lot" or "Lots" shall mean and refer to any plot of land for home building purposes shown upon any recorded subdivision plat of the Property, with the exception of the Common Area. Section 1.08. "Member" shall mean the Declarant and any Owner of a Lot that is subject to assessment; every such Owner shall be a member of the Association. Classes of Members are set forth in Section 3.2 hereof. Section 1.09. "Mortgagee" shall mean the holder of any recorded mortgage, or the party secured or beneficiary of any recorded deed of trust, encumbering any portion of the Property. "Mortgage," as used herein, shall include deeds of trust. "First Mortgage," as used herein, shall mean a mortgage with priority over other mortgages. As used in this Declaration, the term "Mortgagee" shall mean any mortgagee and shall not be limited to institutional mortgagees, and shall include banks, trust companies, insurance companies, mortgage insurance companies, savings and loan associations, trusts, mutual savings banks, credit unions, pension funds, mortgage companies, Federal National Mortgage Association, Federal Home Loan Mortgage Corporation, all corporations and any agency or department of the United States Government or of any state or municipal government. As used in this Declaration the term "holder" or "mortgagee" shall include the parties secured by any deed of trust or any beneficiary thereof. Section 1.10. "Owner" or "Owners" shall mean and refer to the record owner, whether one or more persons or entities, of the fee simple title to any Lot, including contract sellers, but excluding the following: (a) those entities having such interest merely as security for the performance of an obligation; (b) any contractor or home builder entities holding title to a Lot or Lots during the construction of dwellings for the sole purpose of performing such construction with the intent to resell to Owner(s), but who are not the Declarant or successor to the Declarant. Section 1.11. "Plat" shall mean the initial plat of the Property made by Roudabush, Gale & Associates, Inc. dated December 13, 2016, and last amended on June 23, 2017, entitled Subdivision Plat, Section K2C-II, Phase 1, Glenmore Subdivision, Scottsville District, Albemarle County, Virginia, attached hereto and recorded herewith, and any subsequent subdivision plats of the Property added by recorded Supplemental Declarations. Section 1.12. "Property" shall mean and refer to that certain real property described on Page 2 of 28 Exhibit A attached hereto, together with such additions thereto as may hereafter be made subject to this Declaration in accordance with Section 8.05 hereof. ARTICLE II PronertyRights Section 2.01. Owner's Easements of Enjoyment. Every Owner shall have an undivided right and easement of enjoyment in common with all other Owners in and to the Common Area, which shall be appurtenant to and shall pass with the title to every Lot, subject to the following provisions: (a) The right of the Association to suspend the voting rights of an Owner for any period during which an assessment against such Owner's Lot remains unpaid, to suspend the voting rights of an Owner for a period not to exceed sixty (60) days for an infraction of its published rules and regulations and the right of the Association, through its Board, to assess monetary charges against any Member for any violation of the Declaration or published rules and regulations of the Association, in accordance with the Virginia Code; (b) The right of the Association to dedicate or transfer all or any part of the Common Area to any public, private or municipal agency, authority or utility for purposes consistent with this Declaration and subject to such conditions as may be agreed to by the Members and further subject to the then existing laws and applicable ordinances; provided, however, that no such dedication or transfer or determination as to the purposes or as to the conditions thereof, shall be effective unless two-thirds (2/3) of the then voting Members of the Association consent to such dedication, transfer, purpose and conditions, at any special meeting of the Members duly called for such purpose; (c) The right of the Association to establish uniform rules and regulations pertaining to the use of the Common Area and any facilities thereon; (d) The right of the Declarant (and its sales agents and representatives) and its assignees (and their sales agents and representatives) to the non-exclusive use of the Common Area for display and exhibit purposes, which right Declarant hereby reserves; provided, however, that such use shall not be for a period of more than ten (10) years after either the conveyance of the Common Area to the Association, or the sale of all the residential Lots within the Property, whichever is the earlier; provided, further, that no such use by Declarant shall otherwise unreasonably restrict the Members in their use and enjoyment of the Common Area or any facilities thereon; (e) The right of the Association, acting by and through its Board of Directors, to charge reasonable admission and other fees for the use of any recreational facility which may be situated on the Common Area; (f) The right of the Association, acting by and through its Board of Directors, Page 3 of 28 to regulate parking on the Common Area through the granting of easements or promulgation of uniform rules and regulations; (g) The right of the Association, acting by and through its Board of Directors, to grant licenses, rights of way and easements for access or for the construction, reconstruction, maintenance and repair of any utility lines or appurtenances, whether public or private, to any municipal agency, public utility, the Declarant or any other person; provided, however, that no such licenses, rights of way, or easements shall be unreasonably and permanently inconsistent with the rights of the Members to the use and enjoyment of the Common Area; (h) The right of the Association, acting by and through its Board of Directors, to enter into agreements whereby the Association acquires leaseholds, membership or other possessory or use interests in real or personal property for the purpose of promoting the enjoyment, recreation or welfare of the Members of the Association and to declare expenses incurred in connection therewith to be common expenses of the Association in accordance with the Bylaws; (i) The right of access to the Common Area by the County of Albemarle for purposes of maintenance of any storm water management or erosion control areas located within the Common Area, should such maintenance be required by public health, safety and welfare concerns; 6) An easement to the Declarant and Association for the right of ingress and egress onto the Lots for the purpose of maintaining landscaping on such Lots. Section 2.02. Delegation of Use. Any Owner may delegate, in accordance with the Bylaws, his right of enjoyment to the Common Area to the members of his family, his tenants, or contract purchasers who reside on the Property. ARTICLE III Membership and Voting Rights Section 3.01. Membership. Every Owner of a Lot shall be a member of the Association. Membership shall be appurtenant to and may not be separated from ownership of any Lot that is subject to assessment. Section 3.02. Voting Rigs. The Association shall have two (2) classes of voting membership: Class A. Class A Members shall be all Owners with the exception of the Declarant, its successors or assigns (with respect to any Lot for which the Declarant, its successors or assigns holds a Class B membership) and shall be entitled to one (1) vote for each Lot owned. When more than one (1) person holds an interest in any Lot, all such persons shall be Members and the vote for such Lot shall be exercised as they among themselves determine, as more Page 4 of 28 particularly provided in the Bylaws, but in no event shall more than one (1) vote be cast with respect to any Lot owned by one or more Class A Members. Class B. The Class B Member shall be the Declarant and its successors or assigns. The Class B Member shall be entitled to six (6) votes in the Association for each Lot owned by the Class B Member. The Class B membership shall cease and be converted to Class A membership upon the first to occur of the following: (i) such time as Declarant has conveyed all of its interest in the Property other than to a successor to whom all of Declarant's rights hereunder are assigned; or (ii) upon Declaram's delivery to the Association of written notice of Declarant's voluntary termination of the Class B membership. Notwithstanding the foregoing, in the event of annexation of any additional properties, Class B membership shall be revived with respect to all Lots owned by the Declarant on the annexed property, which Class B membership shall cease and be converted to Class A membership on the happening of either of the following events, whichever occurs first: (i) such time as Declarant has conveyed all of its interest in the annexed property other than to a successor to whom all of Declarant's rights hereunder are assigned; or (ii) upon Declarant's delivery to the Association of written notice of Declarant's voluntary termination of the Class B membership. Section 3.03. Declarant Control Period and Common Area Title Transfer. The "Declarant Control Period" shall mean the period beginning upon the recordation of this Declaration and terminating upon the earliest to occur of on the earlier of (a) the date on which the Declarant no longer owns any Lots; or (b) any earlier date contained written notice from the Declarant to the Association specifying the termination date of the Declarant Control Period. Upon the conclusion of the Declarant Control Period, the Declarant shall transfer title and control and maintenance responsibilities of the Common Area to the Association. ARTICLE IV Covenant for Maintenance and Assessments Section 4.01. Creation of the Lien and Personal Obligation of Assessments. The Declarant, for each Lot owned within the Property, hereby covenants and agrees, and each Owner of any Lot by acceptance of a deed therefor, whether or not it shall be so expressed in such deed, is deemed to covenant and agree, to pay to the Association: (1) annual general assessments or charges assessed equally against all Owners, except the Declarant (the "Annual General Assessments"), (2) lot maintenance assessments (the "Annual Lot Maintenance Assessments"), (3) special assessments for capital improvements (the "Special Assessments"), and (4) the Initial Capital Contribution as defined and as described in Section 4.12 hereof. The Annual General Assessments, Annual Lot Maintenance Assessments and Special Assessments and Initial Capital Contributions may be sometimes referred to collectively as "Assessments". All Assessments established and collected as provided in this Article IV and in the Bylaws, together with interest, costs, including all costs of collection, and reasonable attorneys' fees (irrespective of whether litigation has been initiated), shall be a charge on each Lot (including all improvements thereon), and shall be a continuing lien upon each Lot against which such Assessment is made. Each Page 5 of 28 Assessment, together with interest, costs, including all costs of collection, and reasonable attorneys' fees (irrespective of whether litigation has been initiated), shall also be the personal obligation of the person who was the Owner of such property at the time when the Assessment fell due. The personal obligation shall not pass to such Owner's successors in title unless expressly assumed by them in writing or unless a Notice of Lien is recorded. Section 4.02. Purpose of Assessments; Common Area Maintenance Standards. The cost of construction, maintenance, upkeep and replacement of the Common Area shall be the sole responsibility of the Owners acting by the Association, as set forth herein. No public agency, including the Virginia Department of Transportation and the County of Albemarle, Virginia, will be responsible for maintaining any improvement identified herein. The Common Area, including, without limitation, private roads, streets, common parking areas, alleys, bridges, ponds, dams, spillways, on and off -site drainage facilities, pedestrian trails, recreational facilities, retaining walls and all improvements and appurtenances to common property and easements as such may be shown on the Plat, shall be maintained by the Association, subject to the terms and conditions of this Declaration, in perpetuity in materially the same condition as existed when original construction of the improvement was completed and approved by the County of Albemarle. For purposes of this Declaration, `maintenance' includes the maintenance of the private streets or alleys, and all curbs, curbs and gutters, on -site drainage facilities, off -site storm water drainage facilities serving the Property, but located outside of the Property, 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 private streets or alleys reasonably open for usage by all vehicles, including emergency services vehicles. The term "to maintain," or any derivation thereof, shall also include the maintenance, replacement, reconstruction and correction of defects or damage. As to all private streets, roads, driveways, parking areas and alleys on the Property, the travelway shall at all times be maintained so that it is safe and convenient for passenger automobiles and emergency vehicles at all times except in severe temporary weather conditions. The Board of Directors shall have the authority to order any maintenance or repair of any Common Area based on a schedule or other conditions identified by the Board of Directors in its sole discretion, and shall contract for and oversee the performance of such work. The Association shall maintain and provide grass cutting, edging, fertilization, weed control and general lawn maintenance of such Common Areas as determined by the Board of Directors and shall maintain Common Area fencing and shrubbery (which were planted by the Declarant) pruning and replacement, lighting facilities, (including lighting at the front entrance sign, any lighted signs to the Property installed by Declarant or the Association, any street lighting system and (to the extent not blocked by parked vehicles) shall remove snow from any common parking areas located on the Property. The Association shall not be responsible for removal of snow or ice from any other areas of the Property, including but not limited to common sidewalks and stairs, individual Lot sidewalks and stairs and individual Lot driveways and parking areas. The Assessments levied by the Association shall be used to promote the recreation, health, safety, and welfare of the Owners and residents of the Lots, for the improvement and maintenance of the Common Area and easement areas, including, but not limited to, those specific items set forth above, for the purposes stated in the Bylaws and for the enforcement of the Articles of Incorporation, Bylaws, Declaration, the Architectural Guidelines Page 6 of 28 and any published rules and regulations of the Association in accordance with Sections 55-513 and 55-515 of the Act. Section 4.03. Establishment of Annual General Assessment. (a) Upon conveyance of the first Lot to an Owner, the initial maximum Annual General Assessment shall be Five Hundred and Forty Dollars ($540.00), payable in quarterly installments of One Hundred and Thirty -Five Dollars ($135.00) for each Class A Member. From and after January 1 of the year immediately following the conveyance of the first Lot to an Owner, the maximum Annual General Assessment may be increased by the Board of Directors, without a vote of the Class A membership and in accordance with the Bylaws, by an amount not to exceed ten percent (10%) of the maximum Annual General Assessment for the preceding year plus the amount by which any real estate taxes and insurance premium payable by the Association have increased over amounts payable for the same or similar items for the previous year. (b) From and after January 1 of the year immediately following the conveyance of the first Lot to an Owner, the maximum Annual General Assessment may be increased by more than ten percent (10%) of the maximum Annual General Assessment for the preceding year, plus the amount by which real estate taxes and insurance premiums payable by the Association have increased over amounts payable for the same or similar items for the previous year by vote of at least two-thirds (2/3) of the Members attending a meeting at which a quorum is present, held in accordance with the Bylaws. (c) The Association may enter into an agreement whereby the Association creates or acquires leaseholds, memberships, or other possessory or use interests for the purpose of providing recreation facilities, either within or without the Property, for the benefit of the Owners. The Association may levy an annual assessment for such recreation facilities against each Lot, to be included as part of the Annual General Assessment, by vote of at least two-thirds (2/3) of the Members attending a meeting at which a quorum is present, held in accordance with the Bylaws. Section 4.04. Establishment of Annual Lot Maintenance Assessment. (a) Upon conveyance of the first Lot to an Owner, the initial maximum Annual Lot Maintenance Assessment for each Class A Member shall be: Three Hundred Dollars ($300.00) payable in quarterly installments of Seventy -Five Dollars ($75.00). From and after January 1 of the year immediately following the conveyance of the first Lot to an Owner, the maximum Annual Lot Maintenance Assessment may be increased by the Board of Directors, without a vote of the Class A membership and in accordance with the Bylaws, by an amount not to exceed ten percent (10%) of the maximum Annual Lot Maintenance Assessment for the preceding year plus the amount by which any real estate taxes Page 7 of 28 and insurance premium payable by the Association have increased over amounts payable for the same or similar items for the previous year. (b) From and after January 1 of the year immediately following the conveyance of the first Lot to an Owner, the maximum Annual Lot Maintenance Assessment may be increased by more than ten percent (10%) of the maximum Annual Lot Maintenance Assessment for the preceding year, plus the amount by which real estate taxes and insurance and insurance premium payable by the Association have increased over amounts payable for the same or similar items for the previous year by vote of at least two-thirds (2/3) of the Members attending a meeting at which a quorum is present held in accordance with the Bylaws. Section 4.05. Special Assessments for Capital Improvements. In addition to the Annual General Assessment and the Annual Lot Maintenance Assessment as authorized above, the Association may levy against Owners, in any assessment year, a Special Assessment applicable to that year only for the purpose of defraying, in whole or in part, the cost of any construction, reconstruction, repair or replacement of a capital improvement upon the Common Area, including fixtures and personal property related thereto, on the vote of the majority of Members in the Association held as provided in the Bylaws. Section 4.06. Rate of Assessment. Annual General Assessments, Special Assessments, Annual Lot Maintenance Assessments and the Initial Capital Contribution shall be fixed at a uniform rate for all Lots. Annual General Assessments and Annual Lot Maintenance Assessments shall be collected in advance on a monthly or quarterly basis. Section 4.07. Date of Payment of Annual Assessments: Due Dates. Annual General Assessments and Annual Lot Maintenance Assessments begin as to each Lot on the first day of the month following: (a) the date of the closing of the sale to and Owner of such Lot improved by a new dwelling, (b) upon the date of commencement of a lease of a Lot improved by a new dwelling; or (c) upon the date of commencement of the use of such Lot improved by a new dwelling as a model home. During the Declarant Control Period, the Declarant covenants and agrees to fund any budget operating deficits of the Association not covered by the collection of assessments provided for herein until the end of the Declarant Control Period, or until such date as may be determined by the Declarant and furnished no less than thirty (30) days in advance to all Owners in writing (the "Commencement Date"). Beginning on the Commencement Date, the Association's budget shall be funded solely by the Annual General Assessments and Annual Lot Maintenance Assessments. To the extent the Commencement Date does not correspond with the beginning of the Association's fiscal year, such annual assessments shall be prorated for the remainder of the fiscal year. The Board of Directors shall fix the amount of the Annual General Assessment against each Lot at least thirty (30) days in advance of the beginning of each new annual assessment period. Written notice of the Annual General Assessment shall be sent to every Owner subject thereto in accordance with the Bylaws. Due dates for assessments shall be established by the Board of Directors. The Association shall, upon demand, and for a reasonable charge, furnish a certificate signed by an officer of the Association setting forth whether the assessments on a specified Lot have been paid. A properly executed certificate of the Association with the status of assessments on the Lots shall be conclusive evidence of payment of any Page 8 of 28 assessment therein stated to have been paid Section 4.08. Effect of Non -Payment of Assessments: Remedies of the Association. Any assessment not paid within thirty (30) days after the due date shall be assessed a late fee and shall bear interest from the due date at a rate of ten percent (10%) per annum or such greater amount as may be determined by the Board of Directors. The Association may bring an action at law against the Owner personally obligated to pay the same, or foreclose the lien against the Lot (and all improvements thereon) in accordance with Section 55-516 of the Act. No Owner may waive or otherwise escape liability for the assessments provided for herein by non-use of the Common Area or abandonment of his Lot. In accordance with Section 55-513 of the Act, if an Owner fails to pay any assessments and such assessments are more than sixty (60) days past due, the Association shall have the right to deny the Owner access to any or all of the Common Area, facilities, or services; provided, however, that direct access to an Owner's Lot over any road within the development which is a Common Area shall not be denied the Owner. Section 4.09. Subordination of the Lien to Mortgages. The lien of the assessments provided for herein shall be subordinate to the lien of any first mortgage or deed of trust. No lien shall be effective as to third parties unless and until a Notice of such lien is recorded in the land records of Albemarle County. Sale or transfer of any Lot shall not affect the assessment lien. However, the sale or transfer of any Lot pursuant to any first mortgage or deed of trust foreclosure or any proceeding in lieu thereof shall extinguish the lien of such assessments as to payments that became due prior to such sale or transfer, unless a Notice of such lien is recorded. No sale or transfer shall relieve such Lot from liability for any assessments thereafter becoming due or from the lien thereof. No amendment to this Section 4.8 shall affect the rights of the holder of any first mortgage on any Lot (or the indebtedness secured thereby) recorded prior to recordation of such amendment unless the holder thereof (or the indebtedness secured thereby) shall join in the execution of such amendment. Section 4.10. Exempt Property. The following property subject to this Declaration shall be exempt from the assessments created herein: (a) all properties dedicated to and accepted by a local public authority; (b) the Common Area; (c) all properties owned by a charitable or non-profit organization exempt from taxation by the laws of the Commonwealth of Virginia, provided that no land or improvements devoted to dwelling use shall be exempt from said assessments; and (d) all Lots owned by the Declarant. Section 4.11. Reserves for Capital Components. The Association shall establish and maintain a reasonable reserve fund as may be required by Va. Code § 55-514.1 of the Act or determined by the Board of Directors to be necessary to provide working capital, a general operating reserve and reserves for repair, replacement and restoration of capital components (the Page 9 of 28 "Reserve") by the allocation and payment monthly to such fund of an amount to be designated from time to time by the Board of Directors. The Reserve shall be conclusively deemed to be a common expense of the Association and may be deposited in any banking institution, the accounts of which are insured by any State or by an agency of the United States of America or may, in the discretion of the Board of Directors, be invested in obligations of, or fully guaranteed as to principal by, the United States of America. The Reserve may be expended only for the purpose of the replacement of improvements on the Common Area, major repairs to any equipment replacement, and for start-up expenses and operating contingencies of a non -recurring nature relating to the Common Area. The Association may establish such other reserves for such other purposes as the Board of Directors may from time to time consider necessary or appropriate. The proportional interest of any Member in any such reserves shall be considered an appurtenance of his Lot and shall not be separately withdrawn, assigned or transferred or otherwise separated from the Lot to which it pertains and shall be deemed to be transferred with such Lot. (b) The Board of Directors shall conduct at least once every five (5) years a study to determine the necessity and amount of the Reserve, review the results of such study at least annually to determine whether the Reserve is sufficient; and make any adjustments the Board of Directors deems necessary to maintain the Reserve, as appropriate. To the extent such reserve study indicates a need to budget for reserves, the Association budget shall include, without limitation: (1) the current estimated replacement cost, estimated remaining life, and estimated useful life of the capital components; (2) as of the beginning of the fiscal year for which the budget is prepared, the current amount of the Reserve and the amount of the expected contribution to the Reserve for that year; and (3) a general statement describing the procedures used for the estimation and accumulation of the Reserve pursuant to this Section 4.11 and the extent to which the Association is funding the Reserve consistent with the study currently in effect. Section 4.12. Initial Working Fund. The Board of Directors shall levy an initial assessment against each Owner of a Lot with a completed dwelling thereon who is or becomes a Class A Member at the time of any conveyance (the "Initial Capital Contribution"). Such Initial Capital Contribution shall be in an amount of Five Hundred Dollars ($500.00) and shall be used for commencing the business and working capital of the Association or any other purpose established by the Board of Directors. ARTICLE V Use Restrictions. In addition to all other covenants contained herein and subject to the provisions of Article X, the use of the Property and each Lot therein is subject to the following: Section 5.01. Residential Use and Home Occupation. The Lots shall be used exclusively for residential purposes and for other uses permitted to be carried on within single family dwellings pursuant to the applicable provisions of the zoning ordinance of the County of Page 10 of 28 Albemarle, Virginia. The use of a portion of a dwelling on a Lot as a home office by the Owner thereof shall be considered a residential use, provided that the Owner obtains from the County of Albemarle Zoning clearance for a Class A Home Occupation and maintains any required permits for such home occupation or if not available under then current county ordinances, County zoning clearance and a permit for the least intensive home occupation use of the Lot and also provided that the use of the Lot does not, as determined by the Declarant in its sole discretion, create undue customer, client or delivery traffic to and from the Lot. No sales in conjunction with the home occupation may be conducted on the Lot, except telephone sales or on-line sales over the Internet. Nothing contained in this Article VI or elsewhere in this Declaration shall be construed to prohibit the Declarant from the use of any Lot or dwelling, or improvement thereon, for promotional or display purposes, as model homes, a sales office, or the like. Section 5.02. Exterior Completion. The exterior of each structure must be completed within one year (and yard/landscaping must be completed within 15 months) after the commencement of construction of same, except where such completion is impossible or would result in great hardship to the Owner or builder due to strikes, fires, national emergency or natural calamity. Declarant may require the funding of an escrow or bond to insure completion of the landscaping. The failure to timely complete the exterior of any improvements or landscaping required herein may be enforced by the Declarant by means of a Correction Assessment. Section 5.03. Signs. No sign of any kind (including information boxes) shall be displayed to the public view on or from any Lot, Street, Common Area, or on or from within any structure (including in windows) located on any Lot, except: (i) those signs approved in writing by the Board of Directors; (ii) those signs used by or created for the Declarant; (iii) those signs used by or created by a builder approved by the Declarant and the real estate sales/marketing agents for any such approved builder for the following purposes: for sale/marketing signs, model home signs, open house signs, construction signs, lot number signs and sold signs; (iv) one sign for each Lot, of not more than eighteen inches (18") by twenty-four inches (24"), located only inside windows of the dwelling on the Lot, advertising the Lot for resale or rent; (v) house number signs and (vi) those signs, if any, which shall be required by the County of Albemarle or VDOT. Section 5.04. Nuisance. No noxious or offensive activity shall be carried on upon any part of the Property, nor shall anything be done thereupon which may be, or may become, a material annoyance or nuisance to the neighborhood, or which shall unreasonably interfere with the quiet enjoyment of each of the Owners of his respective dwelling unit, or which shall increase the rate of insurance. The Association, acting through the Board of Directors, shall have the authority to determine in writing conclusively whether any activity conducted upon any such area constitutes a nuisance upon the submission to it of a complaint in writing by any Owner regarding such activity. The Association, acting through the Board of Directors, is given full authority and power to abate any nuisance after by notice to the Owner specifying the nature of the nuisance and the Owner failing to abate said nuisance within a reasonable time after notice. Construction and land development activities of the Declarant shall not be considered a nuisance Page 11 of 28 Section 5.05. Temnorary Structures. No structure of a temporary character, trailer, tent, shack, garage, barn or other out -building shall be used on any Lot at any time as a residence either temporarily or permanently. Sheds may be permitted, but only with the approval of the Board of Directors. Except when used for the construction or sales purposes of the Declarant or any builder (and subcontractors) approved by the Declarant, no trailer or similar equipment shall be permitted to remain upon the Property for more than 24 hours. Section 5.06. Recreational and Other Vehicles. No commercial, industrial or recreational vehicle (including, but not limited to any trailer, camper, bus, recreational vehicle, dune buggy, tow truck, tractor, backhoe, boat, trailer or truck over 3/4 ton rated capacity) shall be stored or parked on any Lot (except in garages) or on the Property without the written consent of the Board. Additionally, the Association, acting through the Board of Directors shall have the power to regulate or prohibit the placement, storage or parking, whether temporary or permanent, on the Property of any vehicle which in the opinion of the Board of Directors detracts from the general aesthetic character and harmony by reason of: (i) the general disrepair or dilapidated state of such vehicle, (ii) the types or quantities of materials or items stored on or within such vehicle, or (iii) the unusual or tasteless exterior appearance of such vehicle, including signs thereon. The Board of Directors shall have the right to tow any improperly parked vehicle or any vehicle, the keeping or parking of which in the Common Area violates this Declaration, upon twenty-four (24) hours' prior written notice to the responsible Owner. Section 5.07. Inoperable and Unlicensed Vehicles. The Association, acting through the Board of Directors shall have the right to tow any inoperable vehicle (as conclusively determined by the Board of Directors), junk vehicle or other vehicle on the Property on which current license plates are not displayed, upon forty-eight (48) hours' prior written notice to the responsible Owner. The repair or extraordinary maintenance of automobiles or other vehicles shall not be carried out anywhere on the Property. Section 5.08. Pets. No animals, livestock or poultry of any kind shall be raised, bred or kept on the Property, except that dogs, cats or other household pets may be kept subject to such rules and regulations as may be adopted by the Association and provided they are not kept, bred or maintained for any commercial purpose, or in unreasonable numbers. Notwithstanding the foregoing, no animals or fowl may be kept on the Property that result in an annoyance or are obnoxious to residents in the vicinity. Pets must be leashed or otherwise restrained while on the Property and all pet waste collected and properly disposed of by the pet's Owner. Section 5.09. Wood Burning Fireplaces, Stoves, and Firewood: Gas Fireplaces. Wood burning fireplaces, stoves or inserts may be used on the Property provided, however, that no more than a cord of firewood may be stored at any time, only in the rear of any Lot and either uncovered or covered with tarpaulins of dark (green, black or brown) color, properly secured. Gas fireplaces shall be permitted on the Property, provided, however, that propane storage tanks shall be kept underground and shall not exceed a volume of 500 gallons. Section 5.10. Antennas, Satellite Dishes. No exterior or roof antennas or satellite dishes (except for allowed satellite dishes which are those that do not exceed two (2) feet in diameter) Page 12 of 28 or similar devices shall be attached to or installed on any Lot or on the exterior portion of any structure on any Lot, except as approved in writing by the Board. The location of allowed satellite dishes must be approved in writing by the Board and generally will be restricted to the rear of the Lots. Section 5.11. Trees. No person may disturb or remove existing trees or other vegetation in any Common Area. Any Owner, for himself and his family members, tenants, guests or other invitees for whom he is responsible, who removes any tree or vegetation in any setback, screening or landscape easement areas or other part of the Common Area may be liable pursuant to Section 8.01 for a charge of ten dollars ($10.00) per day following such removal until such landscape trees or vegetation are replaced with trees and vegetation of like kind and quality by such Owner at his sole cost and expense. Section 5.12. Mailboxes. Mailboxes shall be of a uniform size, color and design as specified by the Declarant. Real estate sales information boxes shall not be permitted to be mounted on mailboxes. Section 5.13. Fences. No fence may be erected upon any Lot in the front yard. Fences may be erected in the side and/or back yards of Lots, provided that no fence shall extend closer to a street than the front corners of the dwelling on the Lot. In cases of demonstrated hardship, this restriction on front yard fences may be waived by a written waiver signed by the Board. The "front" shall be that side of the dwelling on a Lot facing, or most nearly facing, a street. Should a question arise about the location of the front, side or rear yard, it shall be conclusively determined by the Board of Directors. All fences shall be three or four board, Virginia horse fencing and painted black. Section 5.14. Garbage Service. Garbage collection shall take place at such locations as are approved or designated by the Declarant. The Board of Directors shall have the power to designate, from time to time, one or more companies and/or individuals exclusively authorized to provide garbage collection service to the Property. Garbage and recycling containers shall be kept in garages except on pick-up day. On the day when pick-up is scheduled, Owners shall not have garbage or recycling containers outside of the garage or other area designated by the Board of Directors more than twelve (12) hours. Section 5.15. Drainage. No Owner shall interfere unreasonably with the natural drainage of surface water from his Lot to the detriment of any other Lot. Section 5.16. Garages. All Owners of Lots are encouraged to keep their vehicles in their garages overnight. For appearance purposes, Owners are encouraged to keep garage doors closed as much as possible. Section 5.17. On -Street Parking. On -street parking is discouraged. Section 5.18. Light Posts. One post light controlled by a light sensor may be installed in front of the dwelling on each Lot and connected to the dwelling's electrical power. Each Owner Page 13 of 28 shall bear the cost of the electrical power for any post light located on his Lot, and shall replace light bulbs and perform any other repairs or replacements for each post light. Section 5.19. Exterior Appearance. All Lots shall have white or earthen toned venetian blinds on windows facing any private street on the Property. Drapes may be added, but are not required. All Lots which have decks shall have rails and band boards which match the exterior trim color of the improvements on the Lots, irrespective of the construction material. Screened porches shall be constructed with only trim which matches the exterior trim color of the improvements on the Lots. These restrictions shall be enforced by the Board. Section 5.20. Miscellaneous. All rubbish, trash and garbage shall be regularly removed from the Property, and shall not be allowed to accumulate thereon. All clotheslines shall be prohibited on the Property unless obscured from view of adjoining Lots and Common Areas by a fence or appropriate screening approved by the Board. Propane and similar fuel tanks shall be located underground. Nothing herein shall be deemed to apply to the storage on the Property of building materials during, and for use in, the initial construction of the improvements on the Property. Section 5.21. Rules. Regulations and Enforcement. All Owners, any occupant of a Lot and any party using the Common Areas shall abide by this Declaration, the Bylaws and any rules and regulations adopted by the Association. Rules and regulations, if any, shall be of uniform applicability throughout the Property and shall be adopted and enforced pursuant to the Act. The Board of Directors shall be authorized to assess a charge or fine pursuant to Section 55-513 of the Act and Section 8.01 of this Declaration against any Owner for violation of the restrictions of this Declaration or the rules and regulations adopted by the Board of Directors for which such Owner, or his family members, his tenants, guests or other invitees are responsible. Section 5.22. Applicability. None of the foregoing restrictions of this Article VI shall be applicable to the activities of - (a) Declarant, its officers, employees, agents or assigns, in their development, marketing and sale of Lots or other parcels within the Property; or (b) The Association, its officers, employees and agents, in connection with the proper maintenance, repair, replacement and improvement of the Common Area and its facilities. Section 5.23. Access to Lots. During normal business hours, upon at least twenty-four (24) hours' prior notice, which may be by email, to the affected Owner, the Board, the Declarant, the Association or the Board of Directors, or any representative of any of them, shall have the right to enter upon and inspect any portion of the Property including such Owner's Lot for the purpose of ascertaining whether or not the provisions of this Declaration been or are being complied with, and such persons shall not be deemed guilty of trespass by reason of such entry. In emergency situations, the aforesaid right of entry shall not require advance notice. Without limiting the foregoing, the Declarant hereby reserves for itself, its successors, and the Page 14 of 28 Association, the right and easement to enter such Lot or any dwelling thereon for the purpose of performing Association provided lawn and exterior maintenance work or work pursuant to the builder's warranty provided by Va. Code § 55-70.1 of the Act, as amended. ARTICLE VI Exterior Maintenance of Property Section 6.01. Association Maintenance —Common Area and Roads. With respect to all Common Area and Roads, the Association, through the Owners' payment of Annual Lot Maintenance Assessments, shall be responsible for the following items of regular maintenance within all Common Area and Roads, with such frequency and as necessary as determined by the Board of Directors in its sole discretion: lawn grass mowing, edging, fertilization and weed control; pruning of trees and shrubs installed by the Declarant or the Association, weeding and mulching of beds installed by the Declarant or the Association; maintenance and repair of street signs and monument sign; maintenance and repair of the storm water management facilities; and maintenance and repair of all private roads located on the Property. The Association shall remove snow from any private roads and common parking areas located on the Property within 24 hours of the cessation of any snow or ice stone. The Board of Directors shall have the power to designate, from time to time, one or more companies and/or individuals exclusively authorized to provide snow removal service to the Property. Section 6.02. Association Maintenance ---Lots. With respect to all Lots, the Association, through the Owners' payment of Annual Lot Maintenance Assessments, shall be responsible for the following items of regular maintenance on all Lots, with such frequency and as necessary as determined by the Board of Directors in its sole discretion: lawn grass mowing, edging, weeding and fertilization; pruning of shrubs installed by the Declarant or the Association; weeding and mulching of beds installed by the Declarant or the Association; and painting, repair and replacement of mailboxes. Section 6.03. Owner Maintenance. Each Owner shall keep each Lot owned by him, and all improvements therein or thereon, in good order and repair and free of debris, including but not limited to, pruning and cutting of all plantings not installed by the Declarant or the Association; weed control and mulching of all beds not installed by the Declarant or the Association, and the painting (or other appropriate external care) of all buildings (including siding, trim, windows, doors, roofs, gutters and downspouts) and other improvements, all in a manner and with such frequency as is consistent with good property management and in accordance, where required, with Board approval as provided herein. Section 6.04. Enforcement. In the event an Owner of any Lot in the Property shall fail to maintain his Lot and the improvements situated thereon within thirty (30) days after sending of written notice (which may be by email) from the Board of Directors specifying the conditions requiring remedy and the minimum maintenance or repairs necessary to remedy such condition, then, upon the vote of the Board of Directors, as provided in the Bylaws, the Association shall have all rights of enforcement set forth in Section 8.01 and the right to enter upon said Lot to Page 15 of 28 perform such minimum maintenance or repairs necessary to remedy the condition. All costs related to such correction, repair or restoration shall become a lien upon such Lot and such lien may be enforced in the same manner as an annual assessment levied in accordance with Section 4.07 hereof. Any such lien shall be subordinate to the lien of any fast mortgage or deed of trust. No lien shall be effective as to third parties unless and until a notice or memorandum of such lien is recorded on the land records of Albemarle County. Sale, conveyance or transfer of any Lot shall not affect such lien. However, the sale or transfer of any Lot pursuant to foreclosure on a bona fide deed of trust or any proceeding in lieu thereof shall extinguish any such lien as to payments that became due prior to such sale or transfer. No sale, conveyance or transfer shall relieve such Lot from liability for any assessments thereafter becoming due or from the lien thereof. No amendment to this Article VII shall affect the rights of the holder of any first mortgage on any Lot (or the indebtedness secured thereby) recorded prior to the recordation of such amendment unless the holder thereof (or the indebtedness secured thereby) shall join in the execution of such amendment. ARTICLE VII Management Section 7.01. Managing Agent. The Declarant, or one of its subsidiaries, or any licensed management company in Virginia (the "Managing Agent") may perform management duties for the Association, at least until the end of the Declarant Control Period, at a rate of compensation established by the Board of Directors for such duties and services as the Board of Directors shall from time to time authorize in writing. The Managing Agent shall perform such duties and services as the Board of Directors shall authorize in writing. After the end of the Declarant Control Period and the expiration or other termination of the contract of the then -current Managing Agent, the Board of Directors may employ a Managing Agent of its choosing as the Managing Agent of the Association. Section 7.02. Duration of Management Agreement. In the event any Managing Agent is employed as provided in Section 7.01 hereof, any management agreement entered into by the Association shall provide inter alia that such agreement may be terminated with or without cause by either party upon ninety (90) days' prior written notice thereof to the other party. The term of any such management agreement may be renewable by mutual agreement of the parties for successive one (1) year periods. Section 7.03 Disclosure Packets. The Managing Agent, or if none, the Association shall be responsible for preparing, updating as needed and providing, upon proper request, disclosure packets containing such information as set forth in Section 55-509.5 of the Act. The Association shall be authorized to make charges for such disclosure packets and for any inspections occasioned thereby, said charges being made at such times and in such amounts as authorized by Section 55-509.6 and Section 55-509.7 of the Act. Section 7.04. Limitation of Liability. Neither the Managing Agent, the Association nor the Board of Directors shall be liable for any failure of any services to be obtained by the Page 16 of 28 Association or paid for out of the common expense funds, or for injury or damage to person or property caused by the elements or resulting from water which may leak or flow from any portion of the Common Area or its facilities, or from any wire, pipe, drain, conduit or the like. The Association shall not be liable to any Member for loss or damage, by theft or otherwise, of articles which may be stored upon the Common Area or its facilities. No diminution or abatement of assessments, as herein elsewhere provided for, shall be claimed or allowed for inconvenience or discomfort arising from the making of repairs or improvements to the Common Area or its facilities, or from any action taken by the Association to comply with any of the provisions of this Declaration or with any law or ordinance or with the order or directive of any municipal or other governmental authority. ARTICLE VIII General Provisions Section 8.01. Enforcement. (a) The Association, or any Member or Mortgagee, shall have the right to enforce, by any proceeding at law and/or in equity, all restrictions, conditions, covenants, reservations, liens, charges or other obligations or terms now or hereafter imposed by the provisions of this Declaration, the Architectural Guidelines or Rules and Regulations promulgated by the Declarant or the Association or by the articles of incorporation or Bylaws of the Association. Failure of the Association, any Member or any Mortgagee to enforce any covenant or restriction herein contained, contained in the Architectural Guidelines or Rules and Regulations or any provision of the Bylaws or articles of incorporation of the Association shall in no event be deemed a waiver of the right to do so thereafter. It shall be conclusively presumed that any material violation or breach, or attempted violation or breach, of the covenants and restrictions contained in this Declaration, the Architectural Guidelines, Rules and Regulations the Bylaws or the articles of incorporation of the Association shall cause irreparable damage to the Association, its Members or any Mortgagee, that such damage cannot be adequately remedied by action at law or exclusively by recovery of damages, and therefore that injunctive or other equitable relief is the proper remedy for such breach. (b) In addition to the power to suspend a Member's right to use facilities, services, and Common Areas for nonpayment of Association assessments as described in Section 4.07 hereof, the Board of Directors shall have the power to assess charges against any Member for violation of the Declaration or any rules and regulations for which the Member or such Member's household, tenants, guests, or other invitees are responsible. The amount of any charges so assessed shall not be limited to the expense or damage to the Association caused by the violation, but shall not exceed fifty dollars ($50.00) for a single offense or ten dollars ($10.00) per day for any offense of a continuing nature and shall be treated as an assessment against the offending Member's Lot for the purposes of Section 55-516 of the Act. However, the total charges for any offense of a continuing nature shall not be assessed for a period exceeding ninety (90) days. Page 17 of 28 (c) Before the charges of Subparagraph (b) above or the suspension described in Section 4.07 hereof may be imposed, the Member shall be given an opportunity to be heard and to be represented by counsel before the Board of Directors. Notice of a hearing, including the charges or other sanctions that may be imposed, shall be hand delivered or mailed by registered or certified mail, return receipt requested, to the Member at the address of record with the Association at least fourteen (14) days prior to the hearing. Section 8.02. 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 8.03. Duration. Except where permanent easements or other permanent rights or interests are herein created, the covenants and restrictions of the Declaration shall run with and bind the Property for a term 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 each unless terminated as provided in Article XII hereof. Section 8.04. Amendment. Subject to the other limitations set forth in this Declaration, and except as otherwise provided by the Act, this Declaration may be amended only by vote of two-thirds (2/3) of the Owners, evidenced by their execution of the amendment or ratifications thereof, and shall become effective when a copy of the amendment is recorded together with a certification, signed by the principal officer of the Association or such other officer or officers as the Declaration may specify, that the requisite majority of the Owners signed the amendment or ratifications thereof, among the land records of Albemarle County. Section 8.05. Annexation. Additional lots or property, as may be hereafter designated by the Declarant or its successors or assigns, may be annexed to the Property without the consent of the Class A Members of the Association, if any, within five (5) years after the date this Declaration is recorded. Any annexations made pursuant to this Section 8.05, or otherwise, shall be made by recording a supplementary declaration among the land records of the County of Albemarle, which supplementary declaration shall extend this Declaration to such annexed property, or by the recordation of a deed of dedication or deed of subdivision for such additional property or any portion thereof which shall by its terms subject such additional property to the operation of the provision of this Declaration. On the first day of the month following recordation of the above described supplementary declaration, deed of dedication or subdivision, all lots described in the supplemental declaration, deed of dedication or subdivision shall be assessed a pro rata share of any assessments then due. Except during the Period of Declarant Control or as otherwise provided herein, annexations to the Property shall require the consent of two-thirds (2/3) of the Class A Members. Section 8.06. FHA and VA Aroprovals. Provided that there are then Class B memberships of the Association outstanding, and should any Lot be encumbered by a deed of trust guaranteed by the Veterans Administration or Federal Housing Administration, then neither the Members, Page 18 of 28 the Board of Directors nor the Association shall, by act or omission, take any of the following actions without the prior written consent or approval of the Federal Housing Administration or the Veterans Administration: (a) make any annexation or additions other than as provided for pursuant to Section 8.05 of this Declaration; (b) abandon, partition, dedicate, subdivide, encumber, sell or transfer any of the Common Area or its facilities directly or indirectly owned by the Association; provided, however, that the granting of rights -of -way, easements and the like for public utilities or for other purposes consistent with the use of the Common Area and its facilities by the Members of the Association shall not be considered a transfer within the meaning of this Section 8.06; (c) abandon or terminate this Declaration; (d) modify or amend any provisions of this Declaration, the Bylaws or the articles of incorporation of the Association; or (e) merge or consolidate the Association with any other entity or sell, lease, exchange or otherwise transfer all or substantially all of the assets of the Association to any other entity. Section 8.07. Consents by Lenders. Any other provision of this Declaration or the Bylaws or articles of incorporation of the Association to the contrary notwithstanding, neither the Owners, the Board of Directors nor the Association shall, by act or omission, take any of the following actions without the prior written consent and approval of not less than two-thirds (2/3) in number of the holders of the first mortgages of record on the Lots: (a) abandon, partition, alienate, release, hypothecate, dedicate, subdivide, encumber, sell or transfer any of the Common Area or its facilities directly or indirectly owned by the Association; provided, however, that the granting of rights -of -way, easements and the like for public utilities or for other purposes consistent with the use of the Common Area and its facilities by the Members of the Association shall not be considered a transfer within the meaning of this Section 8.07; (b) abandon or terminate this Declaration; (c) modify or amend any provision of this Declaration, the Bylaws or the articles of incorporation of the Association dealing with the rights of Mortgagees; (d) merge or consolidate the Association with any other entity or sell, lease, exchange or otherwise transfer all or substantially all of the assets of the Association to any other entity; (e) substantially modify the method of determining and collecting Page 19 of 28 assessments against an Owner or his Lot as provided in the Declaration; or (f) fail to maintain fire and extended coverage on any building in the Common Area on a current replacement cost basis in an amount not less than one hundred percent (100%) of the insurable value (based on current replacement cost); or (h) use hazard insurance proceeds for losses to any Common Area for other than the repair, replacement or reconstruction of such Common Area. Section 8.08. Additional Rights of Mortgagee — Notice. The Association shall promptly notify the Mortgagee of any portion of the Property (i) for which any assessment levied pursuant to the Declaration, or any installment thereof, becomes delinquent for a period in excess of thirty (30) days, or (ii) with respect to which any default in any other provision of this Declaration remains uncured for a period in excess of thirty (30) days following the date of such default. No suit or other proceeding may be brought to foreclose the lien for any assessment levied pursuant to this Declaration except after ten (10) days' prior written notice to the Mortgagee of the portion of the Property which is the subject of such suit or proceeding. If the Association employs a Managing Agent and then subsequently undertakes "self -management," it shall promptly give written notice of such occurrence to all Mortgagees of record of the Property. Any first mortgagees of any portion of the Property may pay any taxes, utility charges or other charges levied against Common Area which are in default and which may or have become a charge or lien against Common Area and any such first mortgagees may pay any overdue premiums on any hazard insurance policy or secure new hazard insurance coverage on the Common Area. Any first mortgagee who advances any such payment shall be due immediately reimbursement of the amount so advanced from the Association. Section 8.09. Mortgagee Notification and Presumptive Annroval. Notwithstanding the foregoing, all notices and rights of Mortgagees contained in this Declaration and the Bylaws shall pertain only to those Mortgagees who have advised the Association in writing of their status as Mortgagees and provided current mailing addresses. If any notice is given or consent requested pursuant to Sections 8.07 and 8.08 above and the Mortgagee does not grant or deny such consent within thirty (30) days after receipt of such notice, then such Mortgagee shall be deemed to have approved such notice or consent. Section 8.10. Casualty. In the event of substantial damage or destruction to the Common Area, the Board of Directors of the Association shall give prompt written notice of such damage or destruction to the Mortgagees. No provision of the Declaration or the Bylaws shall entitle any Member to any priority over the Mortgagee of his Lot with respect to the distribution to such Member of any insurance proceeds paid or payable on account of any damage or destruction of the Common Area. Section 8.11. Condemnation or Eminent Domain. In the event any part of the Common Area is made the subject matter of any condemnation or eminent domain proceeding, or is Page 20 of 28 otherwise sought to be acquired by any condemning authority, then the Board of Directors of the Association shall give prompt written notices of any such proceeding or proposed acquisition to the Mortgagees. No provision of this Declaration or the Bylaws shall entitle any Member to any priority over the Mortgagee of his Lot with respect to the distribution to such Member of the proceeds of any condemnation or settlement relating to a taking of the Common Area. Section 8.12. Captions and Gender. The captions contained in this Declaration are for convenience only and are not a part of this Declaration and are not intended in any way to limit or enlarge the terns and provisions of this Declaration. Whenever the context so requires, the male shall include both genders and the singular shall include the plural. Section 8.13. Successors and Assigns The Declaration shall be binding upon and shall inure to the benefit of the Declarant and its successors and assigns. The covenants, conditions and restrictions contained in this Declaration shall bind the Declarant and the Owners, shall burden title to the Property for the benefit of the owners thereof, and shall run with the land and bind the Declarant's successors in title. Section 8.14. Boundary Revisions. No Lot may be subdivided or its boundary lines changed except with the prior written consent of the Board of Directors, which shall not prohibit boundary line adjustments to resolve encroachments, boundary line disputes, zoning violations and other clouds on title. The Declarant without the consent of the Board of Directors, may make Lot boundary line adjustments to resolve actual or potential encroachments, zoning violations and other clouds on title. In addition, the Declarant expressly reserves to itself, its successors and assigns, the right to replat any Lot owned by it and shown on any subdivision plat of the Property in order to create a modified building Lot or Lots and to take such other steps as are reasonably necessary to make such replatted Lot suitable and fit as a building site, including but not limited to, the relocation of easements, open space, walkways, rights of way, bike/pedestrian trails and other amenities to conform to the new boundaries of said replatted Lot. ARTICLE DX Easements and Additional Maintenance Covenants Section 9.01. General Easement. The Declarant and Association reserve the right and easement to the temporary use of the Common Area and any Lot or any portion thereof as may be needed for repair, maintenance or construction on any Lot or the Common Area, provided that any damage to the servient property shall be promptly repaired at the cost of the Declarant or the Association, as the case may be. Section 9.02. Crossover Easement. If the Owner (including the Declarant) of any Lot, in order to maintain or make responsible repairs or improvements to a building on his Lot or in order to move furniture into a building on his Lot, must enter or cross any Common Area or Lot of another Owner, such Owner shall have an easement to do so; provided that said Owner shall use the most direct feasible route in entering and crossing over such area, ladders and other equipment shall not be located on the property of the other Owner any longer than reasonably necessary and the Owner shall restore the surface so entered, used or crossed to its original Page 21 of 28 condition, at the expense of said Owner, and finther provided that such easement shall not exist on the land of any other Owner if the purpose for the entrance or crossing is one requiring, by virtue of Article V of this Declaration, approval of either the Board of Directors or the Architectural Committee of the Association, unless such approval has been given. Section 9.03. Blanket Easement. An easement is hereby retained in favor of Declarant and the Association, together with the right to grant and transfer the same, over, across and under the Property and the Common Area for the construction and installation of landscaping, retaining walls, transition slopes, storm water management, storm water drainage, lighting, cable television system, sprinklers, entrance features, or any item for the enjoyment or benefit of the Owners or deemed necessary or expedient by the Declarant in its sole discretion. An easement is further granted for the purpose of the repair and maintenance of any item so constructed or installed. Each Owner and any builder or contractor covenants not to damage or destroy any portion of an item so constructed and shall hold the Association and the Declarant harmless from the cost of repairing or replacing any portion damaged or destroyed by such owner, his household, guests or invitees. The easement provided by the Section 9.03 shall exclude the footprint of any building located on the Property. Section 9.04. Easement and Right of Entry of Law Enforcement Officials Fire Rescue and Other Emergency Personnel. An easement and right of entry through and upon the Property is hereby granted to law enforcement officers, rescue squad personnel, firefighting and other emergency personnel of the jurisdiction in which the Property is located, and to vehicles operated by said personnel while in the pursuit of their duties. Said emergency personnel shall also have the right of enforcement of cleared emergency vehicle access on roadways and driveways on the Property. Section 9.05. Utility Easements. Easements over, across and under the Property and the Common Area for the installation and maintenance of electric, telephone, cable television and internet service, water, gas, roof drains, whether connected directly to storm sewer or not, drainage and sanitary sewer lines and facilities and the like, as well as any utility or storm water management easements, are hereby reserved by Declarant, together with the right to grant and transfer the same. Declarant also reserves the right to enter onto the Property and/or Common Area and the Lots for the purpose of completing the improvements thereon, for the further purpose of correcting any defects in workmanship or materials in the Property or the improvements thereon, and for maintenance and repair of any of the foregoing. The easements provided by this Section 9.05 shall exclude the footprint of any building located on the Lot and be governed by and subject to the following: (a) All utilities constructed or installed on the Property shall be underground; provided, however, that if it is impracticable to locate a utility entirely below ground, the portion(s) of such utility located above ground shall be subject to the prior review and approval of the Board. (b) Whenever water, sanitary sewer, roof drains, whether connected directly Page 22 of 28 to storm sewer or not, electricity, gas, cable television/internet or telephone connections, lines, cables or any portion thereof, are or have been installed within the Property, the owner of any Lot, or the Association shall have the right, and are hereby granted an easement to the extent necessary thereof, to enter upon or have a utility company enter upon any portion of the Property in which said installation lies, to repair, replace and generally maintain said installations. (c) The right granted in Subparagraph (b), above, shall be only to the extent necessary to entitle the entity serviced by said installation to its full and reasonable use and enjoyment and provided farther that any one exercising said right shall be responsible for restoring the surface of the easement area so used to its condition prior to such use. (d) In the event of a dispute between Owners with respect to the repair or rebuilding of said connections, or with respect to the sharing of the cost thereof, upon written request of one of such Owner addressed to the Association, the matter shall be submitted to its Board of Directors, who shall decide the dispute, and the decision of the Board shall be final and conclusive on the parties. Section 9.06. Drainaee Easement. The Declarant hereby establishes such easements for drainage and water flow as the contours of the Property and the arrangement of buildings by Declarant thereon requires. Declarant reserves an easement over all Lots and Common Area for the purpose of correcting any drainage deficiency and for all of the foregoing, together with the right to grant and transfer the same. The easements provided by this Section 9.6 shall exclude the footprint of any building located on the Lot. Section 9.07. Encroachment Easement. Each Lot within the Property is hereby declared to have an easement, not exceeding one foot (1') in width, over all adjoining Lots for the purpose of accommodating any encroachment not in violation of the County of Albemarle zoning ordinance due to engineering errors, errors in original construction, settlement or shifting of the buildings, roof overhangs, gutters, downspouts, retaining walls, architectural features or other appendages, sidewalks, draining of rain water from roofs, or any other similar cause. 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, settlement 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 misconduct of said Owner or Owners. In the event a structure on any Lot is partially or totally destroyed and then repaired or rebuilt, the Owners of each Lot agree that minor 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 9.08. Storm Water Management. Except as may be otherwise provided in any easement between the Declarant and the County of Albemarle, the Association shall maintain any required facilities for storm water management located within the Common Area and such additional facilities as may be established from time to time on the Property. An easement and right of entry through and upon the Common Area is hereby granted to the County of Albemarle for purposes of maintenance of any storm water management or erosion control area located therein, should such maintenance be required by public health, safety and welfare concerns. Page 23 of 28 Maintenance of drainage easements on individual Lots shall be the responsibility of the Owner(s) of such Lots. Section 9.09. Construction and Slope Maintenance Easements. There is hereby reserved to the Declarant and to the Association a maintenance and construction easement over, across, and under the Lots for the purpose of constructing, reconstructing, and maintaining walls, culverts, and other slope transition and maintenance devices as the Declarant, its successors in title or assigns, or the Association may deem necessary for the orderly maintenance of slopes and slope transitions. Section 9.10. Private Road Maintenance Easement. A right of way easement is hereby established over all private roads on the Property connecting the Lots on the Property, for the use by the Owners and the public for ingress to and egress. The Association shall maintain, at its expense, all private roads located on the Property until and unless such road is accepted for maintenance by Albemarle County or the Virginia Department of Transportation, at which time such easement and maintenance obligation shall expire and be of no further force and effect. ARTICLE X Dissolution of Association The Owners of Lots shall not dissolve or disband the Association, nor shall the Association dispose of any Common Area by sale, or otherwise, except to an organization conceived and organized to own and maintain the Common Area, without first offering to dedicate the same to the jurisdiction in which the Property is located, or to another appropriate governmental agency. No such dissolution or transfer of the obligations and responsibilities of the Association shall occur without the approval of the appropriate agency of the County of Albemarle, Virginia. ARTICLE XI Financing Declarant granted Trustee, for the benefit of Bank, a security interest in the Property in connection with Declarant's acquisition and development financing, which security interest is evidenced by an Amended and Restated Credit Line Deed of Trust and Security Agreement recorded in the Clerk's Office of the Circuit Court of Albemarle County, Virginia, in Deed Book 4794, page 619 (the "Deed of Trust"). By way of their execution of this Declaration, Bank and Trustee acknowledge the provisions hereof, consent to the imposition of restrictions on the Property, and subordinate the Deed of Trust to the Declaration. Page 24 of 28 IN WITNESS WHEREOF, the undersigned, being the duly -authorized representatives of th. eclarant, Bank and Trustee have executed this instrument on theme day of vl 2017. TROY 0000 Notary Puhllu Commonweal@ otVN0lnle 7580000 My commission Expires 04I W2021 COMMONWEALTH OF VIRGINIA CITY OF CHARLOTTESVILLE, to wit: GLENMORE PARTNERS, LLC, a Virginia limited liability company By: Red Dirt Developments, LLC By_L / ��- Jess Achy ach, Manager The foregoing instrument was acknowledged before me this 4 day of L �/ 2017, by Jess Achenbach, the Manager of Red Dirt Developments, LLC, the manager of Glenmore Partners, LLC on behalf of Glenmore Partners, LLC. No Public My Commission expires: G Page 25 of 28 UNION BANK & TRUST, a Virginia banking corporation Name Its: COMMONWEALTH OF VIRGINIA CITY/COUNTY OF A1-6e 16,,1 e , to wit: The foregoin instrument was acknowled ed efo a me this a?�/ day of c� 1 y 2017, by It C'.ieam-'a as Srg , P, on behalf of Union Bank & Trust, a Virginia banking corporation. My Commission expires: o ���,,, Public CYNTHIA a M— q� q_ TIN Notary public Commonwealth of VirCinia 341258 :mission Expires Dee 31 Page 26 of 28 UNION SERVICE CORPORATION, a Virginia corporation By: Its: e'C e l,p5,' east COMMONWEALTH OF VIRGINIA CITY/COUNTY OF I -emq)' 1 , to wit: The foregoing instrument was acknowledged befor me this & day of 'S u 2017, by (en as r to : on behalf of pion Service Corporation, a Virginia corporation. My Commission expires: CYNTHIA 8 MARTIN Notary public Common'122I I'l of Virginia 341258 mmission Expires Dec 31. Page 27 of 28 EXEMIT A All those certain Lots, Open Spaces and Private Right -of -Ways shown on the attached plat of Roudabush, Gale & Associates, Inc., entitled" Subdivision Plat Section K2C-II Phase 1 Glenmore Subdivision" dated December 13, 2016, last revised June 23, 2017, consisting of Sheets I through 15, hereto attached and recorded with this document. Page 28 of 28