HomeMy WebLinkAboutSUB202100001 Agreements 2021-10-11Tax Map Parcel No.: 90-31 (portion)
Prepared by
and Return to: Collison F. Royer (VSB 65893)
Royer Caramanis PLC
200-C Garrett Street
Charlottesville, Virginia 22902
DECLARATION OF PROTECTIVE COVENANTS,
CONDITIONS, RESTRICTIONS AND EASEMENTS
This Declaration of Protective Covenants, Conditions, Restrictions and Easements is made
this 4p� day of D,+&eT 2021, by STANLEY MARTIN HOMES, LLC, a Delaware
limited liability company, referred to hereinafter as "Declarant" in accordance with the Virginia
Property Owners' Association Act, Chapter 18 of Title 55.1 of the Code of Virginia (1950) as
amended; and AVON PARK II COMMUNITY ASSOCIATION, INC., a Virginia non -stock
corporation, referred to hereinafter as "Association".
** W I T N E S S E T H **
WHEREAS, Declarant is the owner of certain land situated in the County of Albemarle,
Virginia (the "County'), more particularly described in Exhibit "A" attached hereto as a part
hereof, said land, together with such additional lands as will be subjected to this Declaration from
time to time, being referred to collectively as the "Property".
WHEREAS, Declarant and the Association desire to establish and assure a uniform plan
for the development of the Property and to enhance and protect the economic and aesthetic value
and desirability of the Property along with the health, safety and welfare of its residents.
WHEREAS, the Property adjoins that certain neighborhood called "Avon Park" (the
"Adjoining Neighborhood"), which Adjoining Neighborhood is subject to the various covenants,
conditions and restrictions set forth in the Declaration of Covenants and Restrictions of Avon Park
recorded among the land records of the County in Deed Book 3291, page 607, as amended in Deed
Book 3364, page 744 and in Deed Book 3393, page 274, as further modified and amended from
time to time (the "Adjoining Neighborhood Declaration'.
NOW, THEREFORE, Declarant and the Association declare that the Property is hereby
subjected to and will be held, sold, occupied and conveyed subject to the terms, provisions and
conditions of this Declaration.
Declarant and the Association further declare that this Declaration, and all amendments
and supplements thereto will run with the land and will be binding upon Declarant, the Association,
each Owner, as hereinafter defined, their heirs, successors and assigns and all parties claiming
under them or under this Declaration and will inure to the benefit of and be enforceable by
Declarant, the Association, each Owner and all claiming under each Owner.
ARTICLE 1 - Definitions
The words used hereinabove or hereinafter in this Declaration which begin with capital
letters (other than words which would normally be capitalized) will, whether in plural or singular
form, have the meanings ascribed to them in Article 1 of this Declaration.
1.01 "Annual Assessments" means and refers to the Annual General Assessment, any
Services Assessment, and any Special Assessment levied by the Association in each of its fiscal
years pursuant to Article 4 of this Declaration. Said Annual Assessments may be prorated over the
course of the year and collected monthly, quarterly, semi-annually or annually, as established by
the Board of Directors.
1.02 "Annual General Assessments" means and refers to the annual charge shared by
all Class A Members established pursuant to Article 4 of this Declaration. Such Annual General
Assessments will be allocated equally among all Lots owned by Class A Members.
1.03 "Applicable Law" means all statutes, laws, common law, rules, regulations,
ordinances, codes and other legal requirements of any governmental authority, and any judgment,
injunction, order, directive, decree or other judicial or regulatory requirement of any court or
governmental authority of competent jurisdiction affecting or relating to the Person or property in
question.
1.04 ARB" means and refers to the Architectural Review and Control Board as maybe
appointed by the Board of Directors pursuant to Article 11 of this Declaration.
1.05 "Articles of Incorporation" means and refers to those certain Articles of
Incorporation dated September 29, 2020, filed by the Association with the Virginia State
Corporation Commission on September 29, 2020.
1.06 "Association" means and refers to Avon Park II Community Association, Inc., a
Virginia non -stock corporation, its successors and assigns.
1.07 "Board of Directors" means and refers to the Board of Directors of the Association
and any board, group or entity of the successor or assign of the Association serving in a comparable
capacity to the Board of Directors.
1.08 "Class A Members" has the meaning ascribed to it in Section 3.02 of this
Declaration.
1.09 "Class B Member" means and refers to Declarant.
1.10 "Common Area" means and refers to all real property and the improvements
thereon from time to time owned or leased or maintained by the Association for the common use
and enjoyment of the Members and their Permittees, including land or improvements located in
easements for the benefit of the Association. Such property may include, but is not limited to, any
common areas shown on subdivision or neighborhood plats, tot lots, climbing structures, gazebos,
pavilions, community center(s), community fields, storage sheds, picnic tables, benches, fire pits,
dog parks, pocket parks, private streets and alleys, signage, natural resource facilities, retaining
walls (but specifically excluding retaining walls constructed on Lots by Owners), community
gardens, common buffer areas, and other open space land, stormwater management and drainage
facilities serving the Association or the Property, street lights, sidewalks, trails, landscape buffers,
landscaping, fencing on the Common Area, buildings needed in connection with water supply,
sewage disposal, gas, electric, or other utility lines, equipment or installations. The Association is
responsible for the management and maintenance of the Common Area.
1.11 "County " means the County of Albemarle, Virginia
1.12 "Declarant" means and refers to Stanley Martin Homes, LLC, a Delaware limited
liability company, its successors and assigns.
1.13 "Development Period" means and refers to the period commencing on the date of
this Declaration first set forth above and terminating on the earlier of (a) the 2 year anniversary of
the date when at least 100% of the Lots anticipated to be constructed by Declarant in connection
with its County -approved project on the Property have been issued certificates of occupancy and
conveyed to third parties who are not Participating Builders; or (b) the date of Declarant's written
notice to the Association of Declarant's termination of the Development Period, provided,
however, that Declarant has no right to terminate the Development Period before the date when at
least 100% of the Lots anticipated to be constructed by Declarant in connection with its County -
approved project on the Property have been issued certificates of occupancy and conveyed to third
parties who are not Participating Builders.
1.14 "Dwelling Unit" means any portion of the Property, as improved, intended for any
type of independent ownership for use and occupancy as a residence by one household and will,
unless otherwise specified, include within its meaning (by way of illustration, but not limitation)
multi -family units and single family attached and detached as may be used and defined as herein
provided or as provided in subsequent declarations covering all or part of the Property.
1.15 "Federal Housing Administration" or "FHA" means and refers to that
governmental agency of the United States of America so entitled and any agency or regulatory
authority of the United States of America which succeeds the Federal Housing Administration.
1.16 "Land Development Activity" means and refers to any building, construction,
reconstruction or repair of a Dwelling Unit, roadways (including private alleys), curbing,
sidewalks, utility services or any other Structure on a Lot or any other portion of the Property by
Declarant, any Participating Builder, and/or by other persons regularly engaged in the building or
construction business, if granted approval in writing by Declarant and the appropriate
governmental department.
1.17 "Land Records" means the land records of the Circuit Court of the County of
Albemarle, Virginia.
1.18 "Lot" means and refers to any plot of land shown upon any recorded subdivision
plat of the Property which has been subjected to this Declaration and upon which a Dwelling
Unit(s) could be constructed in accordance with the County zoning ordinances, and will include
each Dwelling Unit, as the case may be, constructed upon any part of the Property.
1.19 "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 and any other obstruction so as to
keep the private street or alley reasonably open for usage by all vehicles, including emergency
services vehicles."
1.20 "Member" means the Class A Members and Class B Member.
1.21 "Mortgagee" means the holder of any recorded mortgage, or the party secured or
beneficiary of any recorded deed of trust, encumbering one or more of the Lots. "Mortgage," as
used herein, includes deeds of trust. "First Mortgagee" as used herein, means a holder of a
mortgage with priority over other mortgages. As used in this Declaration, the term "Mortgagee"
means any mortgagee and will not be limited to institutional mortgagees. As used in this
Declaration, the term "institutional mortgagee" or "institutional holder" includes 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 ("FNMA"), Federal Home Loan Mortgage Corporation ("FHLMC"), the
Department of Housing and Urban Development ("HUD") or the Veterans Administration (VA),
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 tern "holder" or "mortgagee" includes
the parties secured by any mortgage or any beneficiary thereof.
1.22 "Owner" means the record owner, including contract sellers, whether one or more
persons or entities, of fee simple interest to any Lot which is part of the Property but excluding in
all cases any party holding an interest merely as security for the performance of an obligation.
1.23 `Participating Builder" means and refers to a person or entity designated in writing
by Declarant as a Participating Builder.
1.24 `Permittee(s)" means any Person entitled to occupy a portion or portions of a Lot
as an Owner and/or tenant under a Lease during the tern of such Lease, and their respective
officers, directors, employees, agents, partners, contractors, visitors, invitees, and licensees.
1.25 "Person" means and refers to any individual, corporation, limited liability
company, joint venture, partnership, association, joint stock company, trust, unincorporated
organization or government or any agency or political subdivision thereof or any other separate
legal entity.
1.26 "POA Act" means Chapter 18 of Title 55.1 of the Code of Virginia (1950), as the
same may be amended, restated, or recodified from time to time.
1.27 "Property" means and refers to those certain lands in the County of Albemarle,
Virginia, more particularly described in Exhibit "A" attached hereto, together with such additional
lands as may be subjected to this Declaration.
1.28 "Services Assessment" means and refers to the charge or charges imposed upon a
Lot, section of Lots, neighborhood housing type, or subdivided parcel of the Property for certain
services rendered pursuant to Article 4 of this Declaration.
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1.29 "Special Assessment' means and refers to any special charge established pursuant
to Article 4 of this Declaration.
1.30 "Structure" means and refers to:
(a) Any thing or object (other than trees, shrubbery, landscaping and hedges less than
two feet high) the placement of which upon any Lot may affect the appearance of such Lot,
including any building, garage, porch, shed, greenhouse, bathhouse, coop, cage, house trailer,
covered or uncovered patio, swimming pool, fence, curbing, paving, wall, signboard, wishing well,
bird bath, statues or any other temporary or permanent improvement on such Lot; or
(b) Any excavation, fill, ditch, dam or other thing or device which affects or alters the
natural flow of surface waters from, upon or across any Lot, or which affects or alters the flow of
any waters in any natural or artificial stream, wash or drainage channel from, upon or across any
Lot; or
(c) Any change of more than six inches in the grade of any Lot.
1.31 "Supplemental Declaration" means an amendment or supplement to this
Declaration which subjects additional property to this Declaration or imposes, expressly or by
reference, additional restrictions and obligations on the land described therein, or both.
ARTICLE 2 - Property Rights
2.01 Rights of Enjoyment of Common Area. Each Owner has a right and nonexclusive
easement of enjoyment in and to the Common Area which will be appurtenant to and will pass
with the title to his Lot. Each Permittee will also have a nontransferable, nonexclusive right to use
and enjoy the Common Area. Such easements and rights will be subject to the following
provisions:
(a) The right of the Board of Directors to adopt, promulgate, enforce, and from time to
time amend, reasonable rules and regulations pertaining to the use of the Common Area which
will enhance the preservation of such facilities and the safety and convenience of the users thereof.
Such rules and regulations may include, among other things, limitations on the number of guests
of Owners and Permittees who may use the Common Area at any one time, and parking and traffic
regulations.
(b) The right of the Board of Directors to establish and charge reasonable admission
and any other fees for certain types of uses of the Common Area.
(c) The right of the Board of Directors to suspend (i) the voting rights, (ii) the right of
any Owner to be elected to the Board of Directors and to serve on a committee, and (iii) the right
of any Owner or Permittee to use the Common Area and facilities or services, including utility
services, provided directly through the Association (to the extent that access to the Owner's Lot
through the Common Area is not precluded and provided that such suspension will not endanger
the health, safety, or property of the Owner or Permittee) for so long as any Annual Assessment
for such Lot remains unpaid and overdue for more than 60 days.
(d) The right of the Board of Directors to levy assessments, late fees, interest and
penalties for violations of the provisions of this Declaration or any reasonable rules or regulations
adopted by the Board of Directors pursuant to the provisions hereof (and the POA Act).
(e) The right of the Board of Directors to grant easements or rights -of -way to any
public utility corporation, public agency or to any other entity or person.
(f) The right of the Board of Directors, with the approval of a 67% vote of the Class A
Members present at a meeting at which a quorum is present, to borrow such amounts as are
required by the Association.
(g) The Association may at any time dedicate or transfer all or a part of the Common
Area to any public agency, authority, or other entity including, without limitation, the County, or
to any nonprofit organization upon such terns and conditions as will be agreed upon by such
agency, authority, entity or organization and the Board of Directors, including, without limitation,
terms and conditions providing for the use of such Common Area by the public in general and
terms and conditions pertaining to the maintenance and repair of such Common Area and the
assessments of Owners for the costs of such maintenance and repair.
(h) The right of the Board of Directors to regulate parking on the Common Area,
including community facilities, through the granting of easements, licenses, or promulgation of
rules and regulations. The Association may enforce violations of any easements, licenses or rules
and regulations established by the Board of Directors by towing any non -complying vehicle at the
vehicle owner's expense. In areas where parking is provided on private streets and parking bays
owned or controlled by the Association, the Board of Directors has the right, but not the obligation,
to assign and reserve parking spaces for the exclusive use of individual Owners, to the exclusion
of the other Owners. The Board of Directors may exercise this right in a selective manner
according to guidelines and criteria created for such purpose and duly adopted by the Board of
Directors.
(i) The right of the Board of Directors to contract with other landowners to permit the
use of recreational facilities upon payment of fees and compliance with other terms as may be
required by the Board of Directors, in its discretion.
ARTICLE 3 - Association Membership, Voting Rights, Board of Directors
3.01 Organization of the Association. The Association has been organized as a nonprofit,
non -stock corporation under the laws of the Commonwealth of Virginia (i) to provide for the
acquisition, construction, management, maintenance and care of the Common Area and, at the
discretion of the Association, portions of Lots; (ii) to obtain, manage and maintain services for the
Property, or sections thereof including, if deemed necessary by the Board of Directors, items such
as refuse, trash and rubbish collection, grass mowing of the Common Area and, at the discretion
of the Association, portions of Lots; and (iii) to take other acts or action which would promote the
health, safety or welfare of the Owners, including, if deemed necessary or beneficial by the Board
of Directors, contracting with adjoining or nearby properties pertaining to the joint management,
access and/or use of the Common Area and/or of common facilities of such other property. The
Association is charged with such further duties and invested with such powers as are prescribed
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by law and set forth in the Articles of Incorporation and Bylaws of the Association and herein as
all of the same may be amended from time to time. The Articles of Incorporation and Bylaws of
the Association will not be amended or otherwise changed or interpreted so as to be inconsistent
with this Declaration.
3.02 Membership in the Association. Every Owner of a Lot which is subject to
assessment will be a Member of the Association. Membership will be appurtenant to, and may not
be separated from, ownership of any Lot which is subject to assessment. The Association has the
following classes of membership:
(a) Class A. Class A Members shall be all Owners, with the exception of Declarant. A
Person will automatically become a Class A Member upon his becoming an Owner of a Lot, and
will remain a Class A Member for so long as he is an Owner.
(b) Class B. The Class B Member shall be Declarant.
3.03 Voting Rights of Members.
The Association has 2 classes of voting membership.
(a) Each Class A Member will be entitled to 1 vote on each matter submitted to the
Members for each Lot owned by such Class A Member. Any Class A Member who is in violation
of this Declaration, as determined by the Board of Directors in accordance with the provisions
hereof and regulations established hereunder, will not be entitled to vote during any period in
which such violation continues.
(b) The Class B Member shall be entitled to 4 votes for each Lot that it owns. The Class
B membership will terminate upon the later of:
(i) December 31, 2031; or
(ii) The date when at least 75% of the Lots anticipated to be constructed by
Declarant in connection with its County -approved project on the Property have been issued
certificates of occupancy and conveyed to third parties who are not Participating Builders.
In addition, Class B membership can be terminated at any time by the recordation
among the Land Records of a written instrument signed by Declarant, or its successors or assigns,
specifically terminating such rights.
3.04 Board of Directors. The business and affairs of the Association will be managed by
a Board of Directors consisting of 3 natural persons who will be initially designated by Declarant
and who will hold office until the election of their successors at the first annual meeting of the
Members of the Association after Class B membership terminates, or at any Special Meeting called
at the request of the Class B Member for the purpose of electing Class A Members to the Board of
Directors. After Class B membership is terminated, the Board of Directors will consist of 3
Members who will be elected by the Members in accordance with the Bylaws. After Class B
membership is terminated, the number of directors will be determined in accordance with the
Bylaws of the Association.
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3.05 Adoption of Further Rules and Regulations. The Board of Directors may make such
rules and regulations consistent with the terms of this Declaration and the Association's Articles
of Incorporation and Bylaws as it deems advisable with respect to any meeting of Members, proof
of membership in the Association, evidence of the right to vote, appointment and duties of
inspectors of votes, registration of Members for voting purposes, voting by proxy, and other
matters concerning the conduct of meetings and voting. If the Board of Directors so determines,
and if permitted under Applicable Law, voting on elections and other matters, including any
matters requiring the approval of the Class A Members as provided in this Declaration, may be
conducted by mail or by ballot.
3.06 Limitation of Liability. The Association will not be liable for any failure of any
services to be obtained by the 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 will not be liable to any Members 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, will 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 4 - Covenant for Assessments
4.01 Creation of the Lien and Personal Obligation of Assessments. Declarant hereby
covenants, and each Owner of any Lot, by acceptance of a deed therefore, whether or not it will
be so expressed in such deed, is deemed to covenant and agree to pay to the Association such
Annual General Assessments, Services Assessments and Special Assessments as are established
as to such Lot from time to time and are to be paid and collected as hereinafter provided. These
Annual Assessments, to be fixed by the Board of Directors at least 30 days in advance of each
annual assessment period, together with interest thereon, late fees and costs of collection thereof
as hereinafter provided, will be a charge on the land and will be a continuing lien upon the Lot
against which each such Annual Assessment is made. Each such Annual Assessment, together
with interest thereon, late charges, and cost of collection thereof, will also be the personal
obligation of the person who was the Owner of such Lot at the time when the Annual Assessment
fell due. The personal obligation for delinquent Annual Assessment will not pass to successors in
title unless expressly assumed by them. No Owner may waive or otherwise escape liability for any
Annual Assessment provided for herein by non-use of the Common Area, abandonment of his Lot
or any Dwelling Unit thereon, or for any claim of poor services provided by the Association.
4.02 Purpose of Assessments. The Annual Assessments levied by the Association will
be used exclusively to cant' out the business and required obligations and responsibilities of the
Association including, but not limited to (i) the acquisition, construction, management,
maintenance and care, repair or replacement of the Common Area and services, and such portions
of Lots as may be maintained by the Association, and such adjoining or nearby properties as may
be the subjects of agreements with the Association pertaining to the joint management, access
and/or use of the Common Area and/or of common facilities of such other properties; (ii) obtaining,
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managing and maintaining services for the Property, or sections thereof including, as necessary,
refuse, trash and rubbish collection; (iii) promoting the recreation, health, safety and welfare of the
Members; (iv) providing for grass cutting and lawn maintenance of the Common Area, and such
portions of Lots as may be maintained by the Association, maintenance of all landscaping required
to be installed upon the Property pursuant to the County zoning ordinance, maintenance of all
facilities, equipment, trails, sidewalks, street lights, trees, private streets and other facilities not
maintained by the County or the Virginia Department of Transportation, maintenance of any
erosion control areas and/or drainage easements located on the Property, maintenance of lighting
facilities, signage, and the street lighting system located on the Property; (v) providing for the
perpetual maintenance of any stormwater management facilities serving the Property, and for the
perpetual maintenance of private streets within the Property, to the extent not the responsibility of
others to perform, including but not limited to the County; (vi) the payment of any fees, charges,
dues or assessments due pursuant to any maintenance or cost sharing agreement to which the
Association is a party; (vii) the costs for maintaining operating and capital reserve funds; and (viii)
the general business operating costs and expenses of the Association.
4.03 Establishment of Annual General Assessment.
(a) The Association will levy in each of its fiscal years an Annual General Assessment
against each Lot which is owned or occupied by a person who is not Declarant or a Participating
Builder. The amounts of such Annual General Assessments will be established for each Lot by the
Board of Directors at least 30 days in advance of each annual assessment period. The first Annual
General Assessments on each Lot imposed pursuant to this Section will be adjusted according to
the number of months remaining in the annual assessment period from the date of conveyance of
a Lot to an Owner other than Declarant or a Participating Builder.
(b) Declarant, on behalf of the Association, has no obligation to pay any Annual
General Assessments; provided, however, that Declarant has the obligation to pay Annual General
Assessments in accordance with the provisions of Section 4.03(a) on any Lot owned by Declarant
upon which there is located a completed Dwelling Unit which is occupied as a residence.
(c) A Participating Builder has no obligation to pay any Annual General Assessments;
provided however, that a Participating Builder will pay Annual General Assessments on any Lot
owned by said Participating Builder upon which there is located a completed Dwelling Unit which
is occupied as a residence.
4.04 Charges and Collection. The Board of Directors may adjust the Annual General
Assessments as required by good and prudent financial practices.
4.05 Special Assessments. In addition to the Annual General Assessments authorized
above, the Board of Directors may levy, in any fiscal year of the Association, a Special Assessment
for the purpose of defraying, in whole or in part, the cost of any construction, reconstruction, repair
or replacement of the Common Area including fixtures and personal property related thereto, or
for any other purpose for which the Association is responsible. Pursuant to Section 55.1-1825 of
the POA Act, such Special Assessment may be rescinded if, at a meeting called within 60 days of
notice of the Special Assessment, the majority of the votes of each class of membership who are
voting in person or proxy agree to such rescission. Special Assessments will be imposed against
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Lots in the same proportions as Annual General Assessments, as provided in Sections 4.03(a) and
(b).
4.06 Services Assessments. A Services Assessment may be levied by the Board of
Directors against Lots in certain sections or neighborhoods or groups of Lots of the Property. The
amount of the Services Assessment will be determined by the Board of Directors according to the
estimated cost of providing services or rights of use to such properties, and may include both the
cost of services or amenities provided exclusively to such properties, and also services and
amenities that are shared throughout the entire community. The amount of a Services Assessment
will be the same for each Lot in any section but need not be uniform with the Services Assessment
imposed upon Lots in other sections when compared with other Lots. The terms of any Services
Assessment may be set forth in any Supplemental Declaration.
4.07 Charges and Collection. The Board of Directors may increase the Annual
Assessments as it deems is required.
4.08 Date of Commencement of Assessments. The Annual Assessments provided for in
this Article 4 will commence for each Lot on the date of conveyance of the Lot to an Owner other
than Declarant or a Participating Builder. The first Annual General Assessment will be adjusted
according to the number of months remaining in the assessment period.
4.09 Repair and Replacement Reserve. As a part of any Annual General Assessment, the
Board of Directors will obtain from Owners contributions to a replacement and repair reserve.
Such contributions will be paid monthly or at such time as Annual General Assessments are due
and be in an amount to be designated from time to time by the Board of Directors.
4.10 Notice and Due Dates. Written notice specifying (i) the amount of each Annual
Assessment and (ii) the number and amounts of the installments by which each such Annual
Assessment is to be paid, will be given to the Owners of each Lot subject thereto at least 15 days
in advance of each annual assessment period. Each installment of Annual Assessments, if any,
will be due on the first day of each assessment period or as otherwise determined by the Board of
Directors.
4.11 Working Capital Contribution. At the time of each closing on a Lot, the Board of
Directors will collect a working capital contribution against the initial and each subsequent Owner
of each Lot (other than Declarant, a Participating Builder, or any owner taking title to a Lot
designated at the time of closing on such Lot by the County or other governmental authorities for
"affordable housing"). Such contribution, if applicable, will be in an amount equal and Seven
$750.00 for each Lot, or such other amount as determined by unanimous decision of the Board of
Directors from time to time, and will be utilized for commencing business of the Association, for
ongoing business of the Association, and for providing the necessary working capital for the
Association.
4.12 Surplus and Deficit. Any amount accumulated in excess of the amount required for
actual common expenses of the Association may, at the sole option of the Board of Directors, be
(a) placed in reserve accounts; (b) placed in a special account to be expended solely for the general
welfare of the Owners; (c) credited to the next installment(s) of Annual Assessments due from
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Owners pursuant to this Declaration, until exhausted; or (d) be distributed to, or for the benefit of,
each Owner (including Declarant to the extent Declarant is an Owner) in proportion to the
percentage (if any) of the Annual Assessments paid by or for such Owner. Unless the budget for
the succeeding fiscal year is adjusted to amortize the deficit arising during a current fiscal year,
any net shortage in the collected Annual Assessments necessary to cover the common expenses of
the Association will be assessed as a Special Assessment in accordance with Section 4.05 hereof.
Declarant has no obligation to satisfy any operating budget of deficit or shortage that the
Association may incur or experience.
During the Development Period, Declarant may in any fiscal year, elect to subsidize the
General Operating Expenses of the Association by contributing or financing the difference, if any,
between the actual operating expenses of the Association and all actual income of the Association
("Operating Deficits"). For purposes of this Section, the term "General Operating Expenses of the
Association" means all actual expenses incurred by the Association in connection with the
operation of the Association, including, but not limited to, all actual budgeted operating and capital
reserves described in this Article, all actual costs of repair and maintenance of the Common Area,
operation of the recreational facilities or other amenities owned or controlled by the Association
and all administrative costs of operating the Association, such as insurance and management
expenses. For purposes of this Section, "all income of the Association" means all income received
or derived by the Association from whatever source, including, but not limited to, assessment
income from Owners (other than Declarant or a Participating Builder), interest income, and income
from any ancillary operations of the Association. In the event Declarant elects to subsidize the
General Operating Expenses of the Association, as aforesaid, Declarant has no obligation to
contribute to or pay for funding for any capital expenditures of the Association or any Special
Assessments. In consideration for any subsidy by Declarant to fund Operating Deficits, as
aforesaid, during the Development Period, notwithstanding anything to the contrary contained in
this Declaration, Declarant will, at its sole election, have the right to treat all such Operating
Deficits funded by Declarant as an advance of funds to the Association to be refunded to Declarant,
without interest, (i) out of revenues received by the Association pursuant to this Article; or (ii) out
of any net operating revenues of the Association realized by the Association ("Operating
Surpluses") subject to the limitations and conditions set forth below. Notwithstanding the
foregoing, Declarant's rights to repayment of the subsidies to the Association or to reimbursement
of accrued Operating Deficits from Operating Surpluses will be subject to the following conditions
and limitations: (a) Declarant will not be entitled to accrue any interest or other charge with respect
to any subsidies or accrued Operating Deficits; and (b) there will be no decrease in the Annual
Assessments to each Owner prior to the time at which Declarant has been repaid all subsidies made
by Declarant.
4.13 Effect on Nonpayment of Assessments; Remedies of the Association. Any Annual
Assessments not paid within 15 days after the due date established by the Board of Directors will
be delinquent and the Association will charge a late fee of $25.00 or such other amount as is
determined by the Board of Directors from time to time, and in addition, at the discretion of the
Board of Directors, the Association may exercise any or all of the following remedies: (a) upon
notice to the Owner declare the entire balance of any Annual Assessments due and payable in full;
(b) charge interest at a rate determined by the Board of Directors in accordance with applicable
law; (c) bring an action at law or in equity against the Owner(s) of the Lot to collect the same; and
(d) foreclose the lien against the Lot. Such lien may be enforced by the Association in the same
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manner and to the same extent and subject to the same procedures as in the case of a foreclosure
of a real property mortgage under the laws of Virginia.
In any proceeding against an Owner or Lot, the amount which may be recovered by the
Association includes all costs of the proceeding, including reasonable attorneys' fees.
4.14 Certificate of Payment. The Association will, upon written request by Owner, and
for a reasonable charge, furnish a certificate signed by an officer or agent of the Association setting
forth whether the Annual Assessments on a specified Lot have been paid. The Association will
furnish said Certificate within 10 days of receipt of the written request. A properly executed
certificate of the Association as to the status of Annual Assessments on a Lot will be binding upon
the Association as of the date of its issuance.
4.15 Subordination of the Lien to Mortgages. The lien of the Annual Assessments
provided for herein will be subordinate only to the lien of any first mortgage. The sale or transfer
of any Lot will not affect the lien of such Annual Assessments; however, the sale or transfer of
any Lot pursuant to mortgage foreclosure or any proceeding in lieu thereof for the benefit of any
First Mortgagee will extinguish the lien of such assessments as to payments which became due
prior to such sale or transfer. No sale or transfer will relieve such Lot from liability as to any
assessments thereafter becoming due or from the lien thereof. Notwithstanding the foregoing, no
sale or transfer of any Lot pursuant to a mortgage foreclosure or any proceeding in lieu thereof for
the benefit of any First Mortgagee will be deemed to extinguish any mortgage or lien, which the
Association has itself placed upon any property owned by the Association.
ARTICLE 5 - General Restrictions on the Use of the Property and Improvements to be Made
Thereon
Declarant Exemption. The provisions of this Article are intended to restrict certain uses that
may be harmful to or affect the ambience or aesthetic appeal of the Property. The restrictions
are not intended to prohibit Declarant from performing such work as may be necessary in
the completion of the work on the Property. The restrictions of this Article will therefore not
be binding upon Declarant in the performance of any of the work required in order to
complete construction on the Property.
5.01 Zoning Regulations. The Property will not be used for any purpose other than as
permitted in the zoning regulations of the County or the laws, rules, or regulations of any
governmental authority in force and effect on the date of recording of this Declaration as the same
may be hereafter from time to time amended. No building will be erected, altered, placed or
permitted to remain on any Lot other than one used as a Dwelling Unit, as the case may be, or as
otherwise permitted under the zoning regulations. This restriction will not apply to any use for
which a special exception under the County zoning ordinances or other governing regulations, as
the same may be hereafter from time to time amended, is finally granted, provided such use is
approved in writing by the Board of Directors. The right, however, to further limit or restrict the
use of a particular Lot is reserved under the provisions hereof.
5.02 No Use Contrary to Law and No Nuisances. No noxious or offensive trade, services
or activities will be conducted on or upon any portion of the Property nor will anything be done
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thereon which may be or become a continuing annoyance or hazard or nuisance to the Owners or
Permittees of the Property. No use of any Lot or part thereof or any Structure thereon will be made,
nor will any materials or products be manufactured, processed or stored thereon or therein, contrary
to federal, state or local laws or regulations, or which will cause an undue fire hazard to adjoining
Lots. This provision will not be construed to prohibit the conduct of such professional services in
residential areas as are permitted by applicable laws approved by the Board of Directors.
5.03 Screens and Fences. Except for any fence installed by Declarant, a Participating
Builder, or the Association, no fence or screen will be installed on a Lot except in accordance with
any rules and regulations established by the Board of Directors. Fencing installed by Declarant in
the Common Area will be maintained by the Association.
5.04 Outside Storage or Operations. No outside storage of lumber, metals, or bulk
materials of any kind, except building materials stored during the course of construction of any
Structure, will be permitted and no refuse or trash will be kept, stored or allowed to accumulate on
any Lot, unless such item is visually screened in a manner in accordance with any rules and
regulations established by the Board of Directors. No outside storage and operations will extend
above the top of any such screening. If trash or other refuse is to be disposed of by being picked
up and carried away on a regular and recurring basis, containers may be placed in the open, on any
day that a pick-up is to be made, at such place on the Lot so as to provide access to the persons
making such pick-up. At all other times, such containers will be stored so as to be visually screened
from all streets and adjacent and surrounding Lots. The Board of Directors may formulate and
adopt reasonable rules and regulations relating to the size, shape, color and type container
permitted and the manner of storage of same on any Lot.
5.05 Signs and Lighting. The location, color, nature, size, design and construction of all
signs or outdoor lights located on any portion of the Property must be in keeping with the
architectural design and character of the Property and in accord with any rules and regulations
established by the Board of Directors. No sign, banner, flag, billboard or advertisement of any
kind, including, without limitation, information signs, "for sale" or "for rent' signs and those of
contractors and subcontractors, will be erected on any Lot, without the said prior written consent
of the Board of Directors. If permission is granted to any Owner to erect a sign, the Board of
Directors reserves the right to restrict the size, shape, color, lettering, height, material and location
of the sign, or in the alternative, provide the Owner with a sign to be used for such purposes. No
sign will be nailed or otherwise attached to trees. No clotheslines and no outdoor clothes drying or
hanging will be permitted on the Property, nor will anything be hung, painted or displayed on the
outside of the windows (or inside, if visible from the outside) or placed on the outside walls or
outside surfaces of doors of any of the Dwelling Units, and no awnings, canopies or shutters
(except for those theretofore or hereinafter installed by Declarant) will be affixed or placed upon
the exterior walls or roofs of Dwelling Units, or any part thereof, nor relocated or extended, without
the prior written consent of the Board of Directors.
5.06 Vehicles. No commercial truck, commercial bus, taxicabs or other commercial
vehicle of any kind, boats, trailers, campers, recreational vehicles and motor homes will be parked
in any visible location on any residential portion of the Property without the prior written approval
of the Board of Directors. Commercial vehicles will be deemed to include cars and vans in styles
normally used for private purposes but painted with or carrying commercial advertising, logos, or
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business names or containing visible commercial materials. No disabled vehicle or vehicle on
which current registration plates or other required permits such as inspection stickers are not
displayed will be parked on any residential Lot or on the Common Area. The repair or
extraordinary maintenance of vehicles will not be carried out on the exterior of any Lot or on the
Common Area; maintenance of vehicles within garages is permitted. The Association may enforce
the provisions of this Section by towing any non -complying vehicle at the vehicle owner's
expense.
5.07 Animals. Owners will not keep on any part of the Property animals, wildlife,
livestock, reptiles or poultry of any kind, other than domesticated household birds and fish, house
dogs or domesticated house cats. All animals will be leashed (if outdoors) or kept within the
Dwelling Unit and will not be permitted to roam free. The Association may restrict the walking of
pets to certain areas. Owners who walk their pets on the Common Area must clean up after their
pets. Commercial activity involving pets, including, without limitation, boarding, breeding,
grooming or training is not permitted. The ability to keep a pet is a privilege, not a right. If, in the
opinion of the Board of Directors, any pet becomes a source of unreasonable annoyance to others,
or the Owner of the pet fails or refuses to comply with these restrictions, the Owner, upon written
notice in accordance with the POA Act, may be required to remove the pet from the Property. Pets
may not be left unattended or leashed in yards or garages or on porches or lanais. The Board of
Directors may, from time to time, and in its sole discretion, promulgate additional rules and
regulations to regulate pets, including but not limited to the number and type of pets. Household
pets are subject to County regulations and the rules and regulations established by the Board of
Directors. The Association hereby grants authority to the County to enforce County leash and pet
regulations.
5.08 Garages. No garage located on the Property will be utilized for other than the
purpose of parking and storage of vehicles and other types of items normally stored in garages in
first-class residential neighborhoods. No garage located on the Property may be converted into or
used for living space.
5.09 Air and Water Pollution. No use of any Lot will be permitted which emits pollutants
into the atmosphere, or discharges liquid or solid wastes or other harmful matter into any waterway
in excess of environmental standards applicable thereto, which standards will at a minimum meet
the requirements of Federal and State law and any regulations thereunder applicable to the
Property. No waste or any substance or materials of any kind will be discharged into any private
or public sewer serving the Property, or any part thereof, in violation of any regulations of the
County or any private or public body having jurisdiction. No person will dump garbage, trash or
other refuse into any waterway on the Property.
5.10 Leases. No Owner of a Lot will lease to another Person any such Lot or part thereof
unless such lease will be in writing for an initial term of not less than 6 months and will expressly
provide that the terms of such lease will be subject in all respects to the provisions of this
Declaration and the Articles of Incorporation, Bylaws and rules and regulations of the Association,
and that any failure by the lessee to comply with the terms of such documents will be a default
under such lease. No Lot will be subjected to or used for short-term rental or time share purposes.
The Board of Directors will be provided with copies of leases on request.
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5.11 Landscaping. The land area not occupied by Structures, hard -surfacing, vehicular
driveways or pedestrian paths will be kept planted with grass, trees or shrubs or other ground
covering or landscaping in conformance with the standards set by the Board of Directors. Such
standards will take into consideration the need for providing effective site development to:
(a) enhance the Property,
(b) screen undesirable areas or views,
(c) establish acceptable relationships between buildings, parking and adjacent
properties, and
(d) control drainage and erosion.
The Board of Directors reserves the right to require special treatment of slopes,
construction of walls and wells, and use of stone fills and drains to preserve trees that cannot
otherwise be saved. Notwithstanding the foregoing, any clearing, grading or other development
work performed pursuant to any final site development plan by Declarant and approved by all
appropriate authorities of the County for Declarant or for any Participating Builder will not be
subject to the review or approval of the ARB or the Board of Directors.
5.12 Maintenance of Premises and Improvements. Each Owner and its Pemrittees, and
as applicable, will at all times keep its Lot, Dwelling Unit, Structures, premises, and appurtenances
in a safe, clean, neat and sanitary condition. Appropriate maintenance includes, but not be limited
to, painting and other appropriate external care of all Lots, Dwelling Units, Structures, premises,
and appurtenances, including the roof and other improvements, all in a manner and with such
frequency as is consistent with good property management. The Owner will comply with all laws,
ordinances and regulations pertaining to health, safety and pollution, and will provide for storage
and removal of refuse, trash and rubbish from his premises in a manner to be approved by the
Board of Directors.
5.13 Association's Maintenance Obligations. Notwithstanding the foregoing, the
Association will maintain the following improvements in perpetuity, to a standard that, at a
minimum, ensures that they will remain substantially in the condition they are in when the surety
held by the County in relation to such improvements is released, as the same are shown on the road
plans approved by the County under SUB202000173 (Avon Park II — Road Plans -Digital): i)
storm drainage and stormwater management facilities; ii) sidewalks, lead walks and private streets
or alleys located within the Common Area or on the Lots; and iii) retaining walls described in
Section 7.01(i)(vi). Any private streets, alleyways or other similar travelways shall all times be
maintained so that they are safe and convenient for passenger automobiles and emergency vehicles
at all times, except in severe temporary weather conditions.
The Association will also be responsible for aa) mowing of the Common Area and Lots;
bb) fertilization of turf areas for the Common Area and Lots; cc) lime (as needed) for the Common
Area and Lots; dd) aeration (as needed) of the Common Area and Lots; ee) over seeding of turf
areas (as needed) of the Common Area and Lots; ff) weed control of the Common Area and Lots;
gg) mulching of mulched areas in the Common Area and Lots once per year; hh) shrub
maintenance (trimming and fertilization) of the Common Area and Lots; ii) leaf removal on the
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Common Area and Lots; kk) snow removal on all sidewalks, lead walks and private streets or
alleys located within the Common Area or on the Lots.
Provided, however, that in the event any Owner encloses any portion of his Lot with
fencing lacking a gate and denies the Association or its agents access to any such enclosed area,
the maintenance services set forth in this Section will not be provided to such enclosed area, and
the Owner will be responsible, at his sole cost and expense, for the maintenance and upkeep of
such area. Further, in such event, the Owner will receive no abatement in Annual Assessments but
will continue to be responsible for the Annual Assessments charged to his Lot as provided in
Article 4, including any portion of the Annual Assessments which may be designated for the
Association's maintenance obligations as per this Section.
All stormwater management for the Property will employ Best Management Practices.
Weekly trash service will be provided by the Association for the removal of ordinary household
trash. Trash and debris removal from moving, construction, remodeling and other similar trash
intensive activities are not to be included with the Association's weekly trash pick-up service and
must be removed at the Owner's expense. The Association will also be responsible for the
maintenance of all common recreational facilities and buildings, including but not limited to any
pocket parks, tot lots, and trails within the Property.
No public agency, including the Virginia Department of Transportation and the County, will be
responsible for maintaining any improvement identified in this Section 5.13.
5.14 Enforcement of Maintenance. Subject to the Due Process rights described in
Section 14.11 hereof, the Board of Directors, or its agent, during normal business hours, has the
right to do any and all maintenance work reasonably necessary in the opinion of the Board of
Directors to keep such Lot which is in violation of the maintenance requirements, whether
unimproved, improved or vacant, in neat and good order, such cost and expense to be paid by the
Owner of such Lot to the Association upon demand and collected in accordance with Article 4 of
this Declaration. Such action may be taken after notice is given in accordance with Section 14.11
hereof and the POA Act. With respect to any plantings which are not subject to the Association's
maintenance obligations under Section 5.13, the Board of Directors, or its agent, will further have
the right (upon like notice and conditions) to trim or prune, at the expense of the Owner, any hedge,
tree or any other planting that, in the written opinion of the Board of Directors, by reasons of its
location on the Lot or the height to or the manner in which it is permitted to grow, is detrimental
to the adjoining Lots contrary to the rules and regulations of the Board of Directors or is
unattractive in appearance. The lien provided under this Section will not be valid against a bona
fide purchaser (or bona fide Mortgagee) of the Lot in question unless a suit to enforce such lien
has been filed in the court of record and notice thereof has been filed in the appropriate records of
the County prior to the recordation among the Land Records of the deed (or mortgage) conveying
the Lot in question to such purchaser (or subjecting the same to such mortgage).
5.15 Maintenance During Construction. During construction it will be the responsibility
of each Owner to insure that construction sites are kept free of unsightly accumulation of rubbish
and scrap materials, and that construction materials, trailers, shacks and the like are kept in a neat
and orderly manner. No burning of any trash and no accumulation or storage of litter or trash of
any kind will be permitted on any Lot.
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5.16 Miscellaneous.
Without prior approval of the Board of Directors:
(a) no water pipe, gas pipe, sewer pipe, or drainage pipe, or industrial process pipe,
except reasonable quantities of hoses and other temporary movable piping used for irrigation
purposes, will be installed or maintained on any Lot above the surface of the ground;
(b) no previously approved Structure will be used for any purpose other than that for
which it was originally designed;
(c) No Lot will be split, divided, or subdivided for sale, resale, gift, transfer or
otherwise, unless by deed of resubdivision in accordance with the applicable County requirements;
(d) no facility, including but not limited to, poles, wires and conduits for transmission
of electricity, telephone messages and the like will be placed and maintained above the surface of
the ground on any Lot and no external or outside antennas or satellite dishes of any kind no matter
how disguised will be maintained; provided, however, that the Association will comply with all
federal laws and regulations affecting antennas and satellite dishes; and
(e) no Lot or portion thereof will be used for any mining, boring, quarrying, drilling,
removal of, or any other exploitation of subsurface natural resources, which would tend to conflict
with the surface development in accordance with federal, state or local laws or regulations.
5.17 Land Development Activity. The foregoing provisions of this Article will not be
applicable to Land Development Activity. Without limiting the generality of the foregoing
exclusion, Declarant and Participating Builders have the right to carry on the following activities
in connection with Land Development Activity and the construction and sale of Dwelling Units:
(a) to construct, install, operate and/or maintain on the Property one or more
construction or management control offices on Lots, field office trailers or other temporary
facilities; and
(b) to construct, install, operate and/or maintain one or more model homes and sales
offices on the Property. Such models and offices may be owned or leased by Declarant, or by any
Person designated by Declarant or Participating Builders. Land Development Activity and sales
operations will in all events be subject to the local zoning ordinances, and all other applicable laws,
rules and regulations of governmental authorities.
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ARTICLE 6 - Annexations
6.01 Additions by Declarant. Declarant hereby reserves the right (but not the obligation)
at any time during the Development Period to submit, by recordation of a Supplemental
Declaration (either in a separate document or within a deed of subdivision), or by reference in any
deed of conveyance, any additional land in the vicinity of the Property to the terms of this
Declaration. Action under this Section will not require the prior approval of the Class A Members
or their Mortgagees. Any such Supplemental Declaration may impose all, or only a portion of, the
covenants, conditions and restrictions set forth in this Declaration, and may impose additional
covenants, conditions and restrictions which are not set forth herein.
6.02 Additions by the Members. After the Development Period, additional lands not
owned by Declarant may be subjected, annexed or submitted to this Declaration with the written
consent of 67% of the Class A Members, by the recordation of a Supplemental Declaration, to be
signed by the owner of the property being subjected, and by an officer of the Association, certifying
that the Members have approved the annexation in conformance with this Section. The
Supplemental Declaration may be in such format as contemplated by this Declaration.
6.03 Withdrawal of Real Estate. During the Development Period, Declarant has the
unilateral right, without the consent of the Association, any Owner, Class A Members or
Mortgagee, to execute and record an amendment to the Declaration withdrawing any portion of
the Property from the operation of this Declaration. If Declarant does not own said portion, then
the Owner of such portion must also sign the amendment. This Subsection will not apply to any
Lot located on the Property for which a certificate of occupancy has been issued by the County.
6.04 Merger with Adjoining Neighborhood. Understanding that various efficiencies may
exist as a result of combining the Property with the Adjoining Neighborhood, Declarant hereby
reserves the right (but not the obligation), in Declarant's absolute and sole discretion, at any time
during the Development Period, by recordation of an amendment to this Declaration or any other
suitable written instrument, to merge the Property and the Association with the Adjoining
Neighborhood and the then existing Adjoining Neighborhood homeowners association such that
the Property will, going forward, be subject to the Adjoining Neighborhood Declaration. Action
under this Section will not require the prior approval of the Class A Members or their Mortgagees.
After the Development Period, any such merger may be accomplished with the written consent of
67% of the Class A Members, by the recordation of an amendment to this Declaration or any other
suitable written instrument.
ARTICLE 7 - Easements
7.01 Development Easements.
(a) Ingress and Egress. Declarant hereby grants unto the Association and each Owner,
along with their respective Permittees, in common with each other and their respective Permittees
and in common with any and all persons lawfully entitled to use the same, a perpetual, mutual,
non-exclusive and reciprocal ingress and egress easement into, through and over the private drives,
whether now existing or established in the future, within the Property.
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(b) General Easement. Declarant reserves to itself, its successors and assigns and its
designees a non-exclusive (except as provided below) blanket easement over and through the
Property, except for dedicated rights -of -way, for all purposes reasonably related to the
development and completion of the improvements on the Property, including, without limitation:
(i) temporary slope and construction easements; (ii) drainage, erosion control and storm and
sanitary sewer easements (including the right to cut or remove trees, bushes or shrubbery, to
regrade the soil and to take any similar actions reasonably necessary; provided, however, that
thereafter Declarant will restore the affected area as near as practicable to its original condition);
(iii) easements for the storage (in a sightly manner) of reasonable supplies of building materials
and equipment necessary to complete the improvements; (iv) easements for the construction,
installation and upkeep of improvements (e.g., buildings, landscaping, street lights, signage,
streets, trails etc.) on the Property or reasonably necessary to serve the Property; and (v) easements
for ingress and egress as necessary to accomplish the foregoing purposes.
(c) Easement to Facilitate Sales. Declarant hereby reserves to itself, its successors and
assigns and its designees the right to: (i) use any Lots owned or leased by Declarant, or any other
Lot with the written consent of the Owner thereof or any portion of the Common Area (including
any buildings thereon) as models, management offices, sales offices, a visitors' center,
construction offices, customer service offices or sales office parking areas; provided, however,
that Declarant or its designee, as appropriate, will remain responsible for the upkeep of that portion
of the Common Area used for the foregoing purposes; (ii) place and maintain in any location on
the Common Area and on any Lot (for a distance of fifteen feet behind any boundary line which
parallels a public or private street) street and directional signs, mailboxes (including cluster
mailboxes), temporary promotional signs, plantings, street lights, entrance features, lighting, stone,
wood or masonry walls or fences and other related signs and landscaping features; provided,
however, that any signs will comply with applicable governmental regulations and Declarant will
obtain the consent of the Owner of any affected Lot or of the Board of Directors if the Owner does
not consent at the time the sign is erected; and (iii) relocate (in a permissible location) or remove
all or any of the above from time to time at Declarant's sole discretion. The Association is hereby
granted an easement to perform upkeep of any permanent Structure or landscaping installed
pursuant to (ii) above.
(d) Utility Easements. Declarant hereby creates, and there is hereby reserved to
Declarant, its successors and assigns and its designees, a blanket easement upon, across, over, and
under all of the Property, except for dedicated rights -of -way, to create perpetual easements, rights
and privileges of ingress and egress to install, maintain, repair, replace and remove poles, wires,
cables, conduits, pipes, mains, wells, pumping stations, siltation basins, tanks, meters and other
facilities, systems and equipment for the conveyance and use of electricity, telephone service,
sanitary and storm sewer, water, gas, cable television, drainage and other public or private
conveniences, telecommunication systems or utilities, upon, in or over (including air rights, as
applicable, for wireless utilities) those portions of the Property, including the Common Area, as
Declarant may consider to be reasonably necessary (the "Utility Easements") for the development
of the Property. The Utility Easements specifically include, without limitation, those areas shown
on the attached Plat of the Properly (the "Plat") as . The Utility
Easements includes the right of access to such facilities and the right to cut trees, bushes or
shrubbery and such other rights as Declarant or its designees may reasonably require. The utility
lines installed pursuant to the Utility Easements must be installed below ground unless approved
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by Declarant and except as otherwise provided in this Declaration; provided, however, that no
utility line will run beneath a Dwelling Unit other than the utility lines serving such Dwelling Unit.
Declarant has the right to convey Utility Easements to other Owners, to governmental authorities
or utility companies, to the Association and to any other party or parties. This reservation of Utility
Easements is subject to easements granted in any deeds of subdivision.
(e) Specific Development Easement Areas. Declarant hereby reserves to itself, its
successors and assigns and its designees the right to grant and reserve easements, rights -of -way
and licenses over and through the Common Area, any land conveyed to a Participating Builder, or
over and through any Lot within ten feet of any boundary line for the installation and upkeep of
the equipment for providing to any portion of the Property or any other adjacent land, any utilities,
including, without limitation, water, sewer, drainage, gas, electricity, telephone, television,
telecommunications or other similar services, whether public or private, or for any other purpose
necessary or desirable for the orderly development of the Property.
(f) Dedications and Easements required by Governmental Authority. Declarant hereby
reserves to itself, its successors and its assigns, the right to make any dedications and to grant any
easements, rights -of -way and licenses required by any government or governmental agency over
and through all or any portion of the Common Area. Declarant also hereby reserves to itself and
its successors and assigns an easement and a right to grant and reserve easements or to vacate or
terminate easements across all Lots and the Common Area as may be required by any
governmental agency or authority or utility company in connection with the release of bonds or
the acceptance of streets for public maintenance with respect to the Property.
(g) Drainage and Erosion Control. Declarant reserves a perpetual easement, right and
privilege to enter upon any portion of the Property, and the Association is granted a perpetual
easement, right and privilege to enter upon any Lot either before or after a Structure has been
constructed thereon or during such construction, for the purpose of taking such drainage and
erosion control measures as Declarant or the Association deems necessary to prevent or correct
waterllow and soil erosion or siltation; provided, however, that Declarant or the Association will
not exercise such right unless it has given the Owner of the Lot or the Association (as to the
Common Area) the notice required pursuant to Section 14.11 hereof, and the Owner or the
Association, as the case may be, has failed to take appropriate action to correct or prevent the
erosion or siltation problem (the notice provision will not be required in the case of emergency
situations). The cost incurred by the Association in undertaking such drainage and erosion control
measures on any Lot will, if reasonably attributable to an Owner, become an individual assessment
upon the Lot and will constitute a lien against the Lot and will be collectible in the manner provided
herein for the payment of assessments. This Section will not apply to Lots owned by Declarant.
(h) Stormwater Management Easement. Declarant hereby reserves to itself and its
successors and assigns an easement and the right to grant and reserve easements over and through
the Property, except for dedicated rights -of -way, for the construction and upkeep of stormwater
management facilities.
(i) Specific Easements. Declarant hereby reserves to itself and its designees easements
over and through all or any portions of the Property, except for dedicated rights -of -way (and also
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excluding any areas occupied by a Dwelling Unit, a Structure or any other similar improvements)
for the following purposes:
(i) Planting, replanting, maintaining, protecting, enhancing and otherwise
controlling (including all landscaping) the Property (reserving the right, but not the obligation, to
perform such work on portions of Lots). Declarant or the Association, as appropriate, will be solely
responsible for selecting and maintaining all landscaping in the Common Area and those areas
labeled on the Plat as
(ii) Locating, relocating, constructing, maintaining, protecting, enhancing and
otherwise controlling all walkways or pathways located within the Property.
(iii) Locating, relocating, constructing, maintaining, protecting and otherwise
controlling all electrical, oil, gas, solar, television, telephone, microwave, cable,
telecommunication systems, sanitary and storm sewer, stormwater management and public water
facilities (including pipes, conduits, lines, wires, transformers, manholes, inlets and other
appurtenances), but only where such facilities serve Lots other than the Lot on which the specific
facilities in question are located and only to the extent permitted herein.
(iv) Locating, relocating, constructing, maintaining, protecting and otherwise
controlling all project signage located on the Common Area or any other portion of the Property
and controlling signage installed by Owners for other purposes. The Association has the right to
exercise control over all signage.
(v) Controlling and regulating the use and enjoyment of all open spaces and
facilities located in the Common Area.
(vi) Locating, relocating, constructing, maintaining, protecting and otherwise
controlling all retaining walls on the Property (but specifically excluding retaining walls
constructed on Lots by Owners).
0) Further Assurances. Any and all conveyances made by Declarant to the
Association or any Owner will be conclusively deemed to incorporate these reservations of rights
and easements, whether or not set forth in such grants. Upon written request of Declarant, the
Association and each Owner will from time to time sign, acknowledge and deliver to Declarant
such further assurances of these reservations of rights and easements as may be requested. If a
designee requests recordation of a separate document evidencing such easement rights that are
consistent with this Declaration, then Declarant or the Association, as applicable, may sign and
record such an easement instrument, without the consent, approval or joinder of any Owner or
Mortgagee.
Declarant or the Association, as appropriate, or their agents and designees, has the mutual
right and responsibility to perform the tasks and functions listed in Subsections (a) through (i)
above to the exclusion of all others, including all Owners.
7.02 Duration and Assignment of Easements and Rights. Declarant may assign its
rights, in part or in whole, under this Article to, or share such rights with, one or more other persons
or entities, exclusively, simultaneously or consecutively. Declarant will notify the Association of
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any such assignment or designation by Declarant. The rights and easements reserved by or granted
to Declarant pursuant to this Article will continue until the end of the Development Period, and
will lapse and become null and void thereafter, unless specifically stated otherwise herein. The
easements granted to the Association or any other entity pursuant to the rights set forth herein will
survive the expiration of the Development Period.
7.03 Association Power to Make Dedications and Grant Easements. Declarant, on behalf
of itself and its successors and assigns, hereby also grants to the Association the rights, powers
and easements reserved to Declarant above. These rights, powers and easements may be exercised
by the Association; provided, however, that the limitations on duration applicable to Declarant will
not apply to the Association. The Association, however, will not exercise any such easement rights
to the detriment of Declarant's rights reserved hereunder. If Declarant or any Owner requests the
Association to exercise its powers under this Section, the Association's cooperation will not be
unreasonably withheld, conditioned or delayed.
7.04 Easement for Upkeep.
(a) Association Access. Declarant, on behalf of itself and its successors and assigns,
hereby grants the right of access over and through any portion of the Property, except for dedicated
rights -of -way (and also excluding any areas occupied by a Dwelling Unit, a Structure or any other
similar improvement), to the Association, the managing agent and any other Persons authorized
by the Board of Directors, subject to the requirements of Section 14.11 hereof, in the exercise and
discharge of their respective powers and responsibilities, including without limitation, to make
inspections, correct any condition originating within a Lot or in the Common Area threatening
another Lot or the Common Area, correct drainage, perform installations or upkeep of utilities,
install landscaping or other improvements located on the Property for which the Association is
responsible. The agents of the Association may also enter any portion of the Property, except for
dedicated rights -of -way (and also excluding any Dwelling Unit) in order to utilize or provide for
the upkeep of the areas subject to easements granted in this Article to the Association. Each Owner
will be liable to the Association for the cost of all upkeep performed by the Association and
rendered necessary by any act, neglect, carelessness or failure to comply with this Declaration for
which such Owner is responsible, and the costs incurred by the Association will become an
assessment against the Owner and upon the Owner's Lot, and will be collectible in the manner
provided herein for the payment of assessments.
(b) Declarant Access. Until the expiration of any applicable warranty period and the
release of all of Declarant's development bonds, Declarant hereby reserves to itself and its
successors and assigns a right of access over and through any portion of the Property not within a
Dwelling Unit to perform warranty -related work within the Common Area or the Lots. Declarant
may assign its rights under this Subsection to, or share such rights with, one or more other persons
or entities, exclusively, simultaneously or consecutively.
7.05 Limitations on Exercise of Rights and Easements.
(a) These easements are subject to all other easements and encumbrances of record
(including those created by this Declaration).
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(b) Declarant, the Association or any Owner, as appropriate, when exercising the rights
and easements granted by this Article, will: (i) give reasonable prior notice to all affected Owners,
unless an emergency exists which precludes such notice; (ii) minimize any economic or aesthetic
injury to the affected Lots or the Common Area; and (iii) not unreasonably interfere with the
affected Owners' use, enjoyment and benefit from such Owners' Lots or the Common Area.
Further, notwithstanding the easement rights established herein, neither Declarant nor the
Association will exercise any such rights within the interior of a Dwelling Unit without the prior
written consent of the Owner, which consent will not be unreasonably withheld, conditioned or
delayed.
(c) If an easement is relocated, the cost of such relocation will be paid by the party
requesting the relocation.
(d) Any damage to property resulting from the exercise of the aforesaid rights and
easements will be promptly repaired and the site restored to its original condition to the extent
practicable by Declarant or the Association, as appropriate, or at the option of Declarant or the
Association, the party responsible for such damage. In either case, the cost of such repair and
restoration will be paid for by the party responsible for the damage.
(e) Nothing within this Article will authorize the installation or maintenance of any
equipment or facility, public or private, on any portion of the Property unless prior approval has
been obtained from Declarant during the Development Period, which approval may be withheld
in Declarant's sole discretion.
7.06 Crossover Easement. If the Owner (including Declarant) of any Lot must, in order
to make responsible repairs or improvements to a building on his Lot, enter or cross any area
owned or to be owned by the Association, or a Lot of another Owner, such Owner has an easement
to do so, provided that said Owner will use the most direct, feasible route in entering and crossing
over such an area and will restore the surface so entered or crossed to its original condition, at the
expense of said Owner, and further provided that such easement will not exist on the land of any
other Owner if the purpose for the entrance or crossing is one requiring approval of the Board of
Directors, unless such approval has been given.
7.07 Easement and Right of Law Enforcement Officials, Etc. 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 County and to animal control officers
and zoning or building officials and vehicles operated by said personnel while in the pursuit of
their duties. Said emergency personnel will also have the right of enforcement of cleared
emergency vehicle access on the roadways and driveways on the Property.
7.08 Encroachment Easement. Each Lot within the Property is hereby declared to have
an easement, not exceeding two feet in width, over all adjoining Lots for the purpose of
accommodating any encroachment due to engineering errors, errors in original construction,
settlement or shifting of the building, roof overhangs, gutters, architectural or other appendages,
draining or rain water from roofs, or any other similar cause. There will be valid easements for the
maintenance of said encroachments so long as they will exist, and the rights and obligations of
Owners will not be altered in any way by said encroachment, settlement or shifting; provided,
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however, that in no event will a valid easement for encroachment occur due to the willful
misconduct of said Owner or Owners. In the event a Structure or any Lot is partially or totally
destroyed and then repaired or rebuilt, the Owners of each Lot agree that minor encroachments
over adjoining Lots will be permitted and that there will be valid easements for the maintenance
of said encroachments so long as they will exist.
7.09 Parking Space Reservations. Declarant hereby reserves to itself, its successors and
assigns and its designees the right to assign and reserve for the exclusive use of individual Owners
those surface parking spaces located on the private streets owned by the Association which are
adjacent to and which benefit any portion of the Property. This right may be exercised by
Declarant, its successors and assigns and its designees, in a selective manner.
7.10 Declarant as Attorney -in -Fact. Each Owner, for such Owner and such Owner's
successors and assigns, by acquisition of title to all or any portion of the Property, irrevocably
appoints Declarant as attorney -in -fact to grant, relocate and terminate all easements, rights -of -way
and licenses which Declarant has the power to grant pursuant to this Declaration and subject to the
limitations set forth herein; provided, however, that any action taken by Declarant as attorney -in -
fact will not materially, adversely affect any Owner's use and development of or access to the Lot
owned by such Owner, and provided, further, that this appointment will not authorize Declarant to
consent to its own actions or those performed on its behalf where the consent of an Owner is
required to be procured pursuant to this Declaration. Declarant will act as such attorney -in -fact
only in furtherance of its development of the Property, it being recognized that this grant of a
power of attorney is required because Declarant may not own the real estate which Declarant has
the power and authority to subject to easements, rights -of -way and licenses.
7.11 Association as Attorney -in -Fact. Each Owner, for such Owner and for such
Owner's successors and assigns, by acquisition of title to all or any portion of the Property,
irrevocably appoints the Association as attorney -in -fact to grant, relocate and terminate all
easements, right-of-way and licenses which the Association has the power to grant pursuant to this
Declaration and subject to the limitations set forth herein; provided, however, that any action taken
by the Association as attorney -in -fact will not materially, adversely affect any Owner's use and
development of or access to the Lot owned by such Owner, and provided, further, that this
appointment will not authorize the Association to consent to its own actions or those performed
on its behalf where the consent of an Owner is required to be procured pursuant to this Declaration.
The Association will act as such attorney -in -fact only in furtherance of its responsibilities and
duties as set forth in this Declaration, it being recognized that this grant of a power of attorney is
required because the Association may not own the real estate which it has the power and authority
to subject to easements, rights -of -way and licenses.
ARTICLE 8 - Party Walls and Fences
The rights and duties of the Owners of Lots with respect to party walls and party fences
will be governed by the following:
8.01 General Rules of Law to Apply. Each wall which is constructed as a part of the
original construction on the Property and any part of which is placed on the dividing line between
separate Lots will constitute a party wall, and with respect to such wall, each of the adjoining
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Owners will assume the burdens and be subject to an easement for that portion of a party wall on
his Lot, and be entitled to the benefits of these restrictive covenants and, to the extent not
inconsistent herewith, the general rules of law regarding party walls and of liability for property
damage due to negligence or willful acts or omissions will apply thereto.
8.02 Sharing of Repair and Maintenance and Destruction by Fire or Other Casualty. If
any such party wall is damaged or destroyed by fire or other casualty or by some cause other than
the act of one of the adjoining Owners, his agents, or family (including ordinary wear and tear and
deterioration from lapse of time), then, in such event, both such adjoining Owners will proceed
forthwith to rebuild or repair the same to as good condition as formerly, at equal expense.
8.03 Repairs Necessitated by Act of One Owner. If any such party wall is damaged or
destroyed through the act of one adjoining Owner or any of his agents or guests or members of his
family (whether or not such act is negligent or otherwise culpable) so as to deprive the other
adjoining Owner of the full use and enjoyment of such wall, then the first of such Owners will
forthwith proceed to rebuild and repair the same to as good a condition as formerly, without cost
to the adjoining Owner.
8.04 Other Changes. In addition to meeting the other requirements of these restrictive
covenants, and of any building code or similar regulations or ordinances, any Owner proposing to
modify, make additions to or rebuild his residence in any manner which requires the extension or
other alteration of any party wall will first obtain the written consent of the adjoining Owner.
8.05 Right to Contribution Runs With Land. The right of any Owner to contribution
from any other Owner under this Article will be appurtenant to the land and will pass to such
Owner's successors in title.
8.06 Party Fences. The provisions of this Article will also apply to any fence, other
barrier or shared improvement between Lots, which is installed by Declarant and/or Participating
Builder with the permission of Declarant, and to any replacement thereof authorized by the Board
of Directors. Otherwise, the upkeep of any fence, barrier or improvement will be the responsibility
of the Owner who has had it installed.
8.07 Dispute. In the event of a dispute between Owners with respect to the repair or
rebuilding of a party wall or fence or with respect to the sharing of the cost thereof, then, upon
written request of one of such Owners addressed to the Association, the matter will be submitted
to its Board of Directors, who will decide the dispute, and the decision of such Board of Directors
will be final and conclusive upon the parties.
ARTICLE 9- Mortgages
9.01 Notices to Mortgagees, etc. Provided that such First Mortgagee has notified the
Association in writing of the existence of its mortgage, the Association will promptly notify the
First Mortgagee on any Lot for which any assessment levied pursuant to the Declaration, or any
installment thereof, becomes delinquent for a period in excess of 30 days and the Association will
promptly notify the First Mortgagee on any Lot with respect to which any default in any other
provision of this Declaration remains uncured for a period in excess of 30 days following the date
of such default. Any failure to give any such notice will not affect the validity or priority of any
25
first mortgage on any Lot and the protection extended in this Declaration to the holder of any such
mortgage will not be altered, modified or diminished by reason of such failure.
9.02 Presumptive Approval. Notwithstanding the foregoing, all notices and rights of
Mortgagees will pertain only to those Mortgagees who have provided written notice to the
Association of the Mortgagee's name and address, and the name of the Owner and description of
the Lot encumbered by the Mortgage. If any notice is given or consent requested pursuant to this
Article and the Mortgagee does not respond within 60 days of such notice, then such Mortgagee
will be deemed to have approved such notice or requested consent.
ARTICLE 10 - Insurance and Casualty Losses
10.01 Insurance. The Board of Directors or its duly authorized agent has the authority to
and will obtain blanket insurance for all insurable improvements on the Common Area under a
commercial package policy which covers at a minimum, loss from causes identified in the
Insurance Services Office's (ISO's) Commercial Property Causes of Loss — Special Form
endorsement, and insurance to cover loss or damage by fire, lightning, or other hazards or perils,
including extended coverage, vandalism and malicious mischief, and will be in an amount
sufficient to cover the full replacement cost of any repair or reconstruction in the event of damage
or destruction from any such hazard. The policy must provide for loss or damage settlement at
replacement cost. The Board of Directors will also obtain a public liability policy covering the
Common Area, the Association and its Members for all damage or injury caused by the negligence
of the Association or any of its Members or agents, and if reasonably available, directors' and
officers' liability insurance, and fidelity bond coverage in an amount not less than 3 months regular
Annual General Assessments plus the Association's reserves for all officers or employees of the
Association having fiscal responsibility for and direct access to Association funds. The public
liability policy has at least a One Million and 00/100 Dollars ($ 1,000,000. 00) limit per occurrence
for personal injury, bodily injury or property damage under the terms of such coverage and the
coverage must provide for claim settlements on an occurrence basis. The public liability policy
will contain a "severability of interest" endorsement which will preclude the insurer from denying
liability to an Owner because of negligent acts of the Association or of another Owner. Premiums
for all insurance on the Common Area will be common expenses of the Association; premiums for
insurance provided to other associations will be charged to those associations. The policy may
contain a reasonable deductible, and the amount thereof will be added to the face amount of the
policy in determining whether the insurance at least equals the full replacement cost.
Notwithstanding anything to the contrary herein, the deductible for fire, water (not caused by
flooding) or wind damage to the insured improvements (generally designated as "building" in the
insurance policy) may not exceed 5% of the limit maintained for building coverage.
Cost of insurance coverage obtained for the Common Area will be included in the Annual
General Assessment, or a Special Assessment, if any and if applicable.
All such insurance coverage obtained by the Board of Directors will be written in the name
of the Association as Trustee for the respective benefited parties, as further identified in (b) below.
Such insurance will be governed by the provisions hereinafter set forth:
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(a) All policies will be written with a company licensed to do business in Virginia and
holding a rating of XI or better in the Financial Category as established by A.M. Best Company,
Inc., if available and, if not available, the most nearly equivalent rating and must be evidenced in
accordance with Chapter 58.7 of the Freddie Mac Single Family/Single-Family Seller/Servicer
Guide, Volume 2, as amended.
(b) All policies on the Common Area will be for the benefit of the Owners and their
Mortgagees as their interests may appear.
(c) Exclusive authority to adjust losses under policies in force on the Common Area
obtained by the Association will be vested in the Board of Directors; provided, however, that no
Mortgagee having an interest in such losses may be prohibited from participating in the settlement
negotiations, if any, related thereto.
(d) In no event will the insurance coverage obtained and maintained by the Board of
Directors hereunder be brought into contribution with insurance purchased by individual Owners,
occupants, or their Mortgagees, and the insurance carried by the Association will be primary.
(e) All casualty insurance policies will have an agreed amount endorsement with an
annual review by one or more qualified persons, at least one of whom must be in the real estate
industry and familiar with construction in the geographical area where the Property is located.
(f) The Board of Directors will be required to make every reasonable effort to secure
insurance policies that will provide for the following:
(i) A waiver of subrogation by the insurer as to any claims against the Board
of Directors, its manager, the Owners and their respective tenants, employees, agents and guests;
(ii) A waiver by the insurer of its rights to repair and reconstruct instead of
paying cash;
(iii) That no policy may be canceled, invalidated or suspended on account of
any one or more individual Owners;
(iv) That no policy may be canceled, invalidated or suspended on account of
the conduct of any director, officer or employee of the Association or its duly authorized
manager without prior demand in writing delivered to the Association to cure the defect and the
allowance of a reasonable time thereafter within which the defect may be cured by the
Association, its manager, any Owner or Mortgagee; and
(v) That any `other insurance" clause in any policy exclude individual
Owners' policies from consideration.
10.02 No Partition. Except as is permitted in the Declaration, there will be no physical
partition of the Common Area or any part thereof, nor will any person acquiring any interest in the
Property or any part thereof seek any such judicial partition until the happening of the conditions
set forth in Section 10.04 of this Article in the case of damage or destruction, or unless the Property
has been removed from the provisions of this Declaration. This Section will not be construed to
27
prohibit the Board of Directors from acquiring and disposing of tangible personal property nor
from acquiring title to real property which may or may not be subject to this Declaration.
10.03 Disbursement of Proceeds. Proceeds of insurance policies will be disbursed as
follows:
(a) If the damage or destruction for which the proceeds are paid is to be repaired or
reconstructed, the proceeds, or such portion thereof as may be required for such purpose, will be
disbursed in payment of such repairs or reconstruction as hereinafter provided. Any proceeds
remaining after defraying such costs of repairs or reconstruction to the Common Area or, in the
event no repair or reconstruction is made, after making such settlement as is necessary and
appropriate with the affected Owner or Owners and their Mortgagee(s) as their interests may
appear, if any Dwelling Unit is involved, will be retained by and for the benefit of the Association.
This is a covenant for the benefit of any Mortgagee of a Dwelling Unit and may be enforced by
such Mortgagee.
(b) If it is determined as provided for in Section 10.04 of this Article that the damage
or destruction to the Common Area for which the proceeds are paid will not be repaired or
reconstructed, such proceeds will be disbursed in the manner as provided for excess proceeds in
Section 10.03(a) hereof.
10.04 Damage and Destruction.
(a) Immediately after the damage or destruction by fire or other casualty to all or any
part of the Property covered by insurance written in the name of the Association, the Board of
Directors or its duly authorized agent will proceed with the filing and adjustment of all claims
arising under such insurance and obtain reliable and detailed estimates of the cost of repair or
reconstruction of the damaged or destroyed property. Repair or reconstruction as used in this
paragraph means repairing or restoring the property to substantially the same condition in which
it existed prior to the fire or other casualty.
(b) Any damage or destruction to the Common Area will be repaired or reconstructed
unless at least 75% of the total votes in existence of the Association will decide within 60 days
after the casualty not to repair or reconstruct. If for any reason either the amount of the insurance
proceeds to be paid as a result of such damage or destruction, or reliable and detailed estimates of
the cost, repair or reconstruction, or both, are not made available to the Association within said
period, then the period will be extended until such information will be made available; provided,
however, that such extension will not exceed 60 days. No Mortgagee will have the right to
participate in the determination of whether the community facility damage or destruction will be
repaired or reconstructed.
(c) In the event that it should be determined by the Association in the manner described
above that the damage or destruction of the Common Area will not be repaired or reconstructed
and no alternative improvements are authorized, then and in that event the Property will be restored
to its natural state and maintained as an undeveloped portion of the Common Area by the
Association in a neat and attractive condition.
U]
10.05 Repair and Reconstruction. If the damage or destruction for which the insurance
proceeds are paid is to be repaired or reconstructed, and such proceeds are not sufficient to defray
the cost thereof, the Board of Directors will, without the necessity of a vote of the Association's
Members, levy a Special Assessment against all Owners. Additional assessments may be made in
like manner at any time during or following the completion of any repair or reconstruction. If the
funds available from insurance exceed the cost of repair, such excess will be deposited to the
benefit of the Association.
ARTICLE 11 - Architectural Control of Residential Lots
11.01 Composition and Appointment. An Architectural Review and Control Board (the
"ARB") may be appointed by the Board of Directors. Prior to termination of the Class B
membership, the ARB will initially consist of 3 members but may thereafter be increased or
decreased in size by the Board of Directors, from time to time. Upon termination of the Class B
membership, the ARB will consist of no less than 3 Members. Members of the ARB will serve for
a term of 1 year, or until their successors are elected and qualified. Any vacancy in the membership
of the ARB will be filled by the Board of Directors to serve for the remaining portion of the term
of the originally appointed member. If any vacancy will occur, the remaining members of the ARB
may continue to act until the vacancy has been filled. Except for members who have been
designated by Declarant, any member may be removed with or without cause by the Board of
Directors. In the event that the Board of Directors will fail to designate an ARB, the Board of
Directors will serve as the ARB.
11.02 Powers and Duties.
(a) The ARB will serve as an architectural review board and will regulate the external
design, appearance and location of the residential Lots and Structures thereon so as to enforce the
architectural provisions of this Declaration, enforce the requirements of the recorded subdivision
plats, deeds of subdivision, and to preserve and enhance values and to maintain a harmonious
relationship among Structures and the Property.
(b) The ARB will serve in such other capacities as may be determined, from time to
time, by the Board of Directors in enforcing the provisions of this Declaration and the Articles of
Incorporation and Bylaws of the Association.
11.03 Submission of Plans to ARB for Approval. Except for such structures as may be
constructed by Declarant or structures constructed by a Participating Builder which have first been
approved by Declarant, no Structure of any kind whatsoever will be commenced, erected, placed,
moved onto or permitted on any residential Lot, nor will any existing Structure upon any residential
Lot be removed or altered in any way which materially changes the exterior appearance thereof
(including change of exterior color) until plans and specifications therefor will have been
submitted to and approved in writing by the ARB. Such plans and specifications will be in such
form and will contain such information as the ARB may reasonably require, such as the following:
(a) A site plan showing the location of all proposed and existing Structures on the
residential Lot and all existing Structures on adjoining Lots,
(b) Exterior elevations for the proposed Structures,
oil
(c) Specifications of materials, color scheme and other details affecting the exterior
appearance of the proposed improvements, and
(d) Description of the plans or provisions for landscaping or grading.
The provisions of this Section will not apply to Land Development Activity as defined
herein. Any plans and specifications of any Participating Builder which have been approved by
Declarant will not be subject to any review or approval by the ARB following the termination of
the Class B membership or the Development Period.
11.04 Initiation and Completion of Approved Changes. Construction or alterations in
accordance with plans and specifications approved by the Board of Directors or the ARB pursuant
to the provisions of this Article will be commenced within 6 months of such approval and
completed within 12 months of such approval; provided, however, that no such construction or
alteration will be commenced until all applicable zoning permits have been secured and copies of
said permits have been provided to the ARB, if so requested. If construction is not commenced
within the period aforesaid, then approval of the plans and specifications will be conclusively
deemed to have lapsed and compliance with the provisions of this Article will again be required.
There will be no deviations from plans and specifications approved by the Board of Directors or
the ARB without the prior consent in writing of the Board of Directors or the ARB. Approval of
any particular plans and specifications or design will not be construed as a waiver of the right of
the Board of Directors or the ARB to disapprove such plans and specifications, or any elements or
features thereof, in the event such plans and specifications are subsequently submitted for use in
any other instance.
11.05 Approval and Disapproval in Writing. Any approval or disapproval of a requested
action by the ARB, or the Board of Directors pursuant to Section 11.03, will be in writing. In
denying any application, the ARB will specify the reasons for such denial. The ARB may approve
an application subject to such conditions and qualifications as the Board of Directors deems
appropriate to enforce the architectural provisions of this Declaration.
11.06 Failure of the ARB to Act. If the ARB will fail to act upon any request properly
submitted to it within 45 days after submission thereof, such request will be submitted to the Board
of Directors for approval. If the Board of Directors will fail to act within 30 days after submission,
then such request will be deemed to have been approved as submitted, and no further action will
be required; provided, however, that in the event the Board of Directors elects not to appoint an
ARB and the Board of Directors fails to act upon any properly submitted request within 45 days
after submission thereof, then such request will be deemed to have been approved as submitted,
and no further action will be required.
11.07 Rules, Regulations and Policy Statements. The Board of Directors may adopt
design guidelines for the Property. The ARB may recommend, from time to time, subject to the
approval and adoption of the Board of Directors, reasonable rules and regulations pertaining to its
authorized duties and activities under this Declaration and may from time to time issue statements
of policy with respect to architectural standards and such other matters as it is authorized to act on.
The ARB may adopt rules of procedure, subject to the prior approval and adoption of the Board
of Directors, which rules of procedure includes provisions substantially to the following effect:
Q
(a) The ARB will hold regular meetings as necessary. Meetings of the ARB may be
called by the chairman of the ARB and by a majority of the members of said ARB.
quorum.
(b) A majority of the members of the ARB present at any meeting will constitute a
(c) The ARB will maintain minutes of its meetings and a record of the votes taken
thereat.
(d) All meetings of the ARB will be open to the Members of the Association and any
vote of the ARB will be taken at an open meeting. Nothing contained herein, however, will prevent
the ARB from meeting in closed session or executive session in accordance with State and Federal
laws or regulations.
(e) A copy of all minutes, rules, regulations and policy statements of the ARB will be
filed with the records of the Association and will be maintained by the Association as a permanent
public record. The Association will make copies thereof available to any interested Member at a
reasonable cost or will make such minutes, rules, regulations and policy statements available to
any Member for copying, in accordance with the provisions of the POA Act, and any rules for
access to Association records adopted by the Board of Directors.
11.08 Expenses of the ARB. The ARB may charge reasonable fees for the processing of
any requests, plans and specifications including consultation with a professional. The Association
will pay all ordinary and necessary expenses of the ARB; provided, however, no member of the
ARB will be paid any salary or receive any other form of compensation, at the expense of the
Association except upon authorization by the Board of Directors and upon approval by 67% of the
votes cast by (i) the Class A Members who are voting in person or by proxy at a meeting duly
called for such purpose at which a quorum is present, and (ii) the Class B Member (during the
period of Class B membership) voting in person or by proxy at such meeting.
11.09 Right of Entry. The Association and the ARB through their authorized officers,
employees and agents have the right to enter upon any residential Lot at all reasonable times for
the purpose of ascertaining whether such residential Lot or the construction, erection, placement,
remodeling or alteration of any Structure thereon is in compliance with the provisions of this
Article and Article 5 without the Association or the ARB or such officer, employee or agent being
deemed to have committed a trespass or wrongful act solely by reason of such action or actions.
11.10 Land Development. Notwithstanding any other provisions of this Declaration, any
and all Land Development Activity will not require the approval of or be subject to review by the
ARB, but will be subject to any and all applicable County approvals and regulations. This
provision will not be construed in any manner as a limitation upon the right of Declarant to review
and approve any plan or modification thereof of any Participating Builder,
ARTICLE 12- Condemnation
Whenever all or any part of the Common Area will be taken (or conveyed in lieu of, and
under threat of condemnation, by the Board of Directors acting on its behalf or on the written
direction of all Owners subject to the taking, if any) by any authority having the power of
31
condemnation or eminent domain, each Owner will be entitled to notice thereof and to participate
in the proceedings incident thereto unless otherwise prohibited by law. The award made for such
taking will be payable to the Association as trustee for all Owners to be disbursed as follows:
If the taking involves a portion of the Common Area on which improvements have been
constructed, then, unless within 60 days after such taking Declarant and at ]east 75% of the votes
of the Class A Members of the Association will otherwise agree, the Association will restore or
replace such improvements so taken on the remaining land included in the Common Area to the
extent lands are available therefore, in accordance with plans approved by the Board of Directors.
If such improvements are to be repaired or restored, the above provisions in this Article regarding
the disbursement of funds in respect to casualty damage or destruction which is to be repaired will
apply. If the taking does not involve any improvements on the Common Area, or if there is a
decision made not to repair or restore, or if there are net funds remaining after any such restoration
or replacement is completed, then such award or net funds will be disbursed to the Association and
used for such purposes as the Board of Directors will determine.
ARTICLE 13 - Amendment
13.01 General Amendments. Subject to any specific limitations set forth in this
Declaration, this Declaration may be amended by an instrument approved by not less than 67% of
the votes cast at a duly -called meeting of the Members at which a quorum is present. The
amendment instrument will be recorded among the Land Records, in accordance with the
requirements of Section 55.1-1829(F) of the POA Act. Unless a later date is specified in any such
instrument, any amendment to this Declaration will become effective on the date of its recording.
13.02 Declarant Amendments. Notwithstanding anything to the contrary herein
contained, and notwithstanding anything to the contrary contained in Section 55.1-1829(D) and
(F) of the POA Act, Declarant reserves the right to amend this Declaration and to convey the
Common Area without the consent of any Owners or any other persons claiming an interest in the
Property or the Association, if such amendment is necessary to (i) bring this Declaration into
compliance with any rule, regulation or requirement of the FHA, FNMA, FHLMC, VA, and/or
any similar lending entities, or any other governmental entities or agencies, including the County;
(ii) make corrective changes; (iii) reflect the relocation of boundary lines between the Common
Area and any Lots or among any Lots; or (iv) annex land as described in Article 6.
ARTICLE 14 - General Provisions
14.01 Duration. The covenants and restrictions of this Declaration will run with and bind
the land for a term of 20 years from the date this Declaration is recorded, after which time they
will be automatically extended for successive periods of 20 years unless amended or terminated as
provided in this Article.
14.02 Enforcement. The Association, Declarant or any Owner has the right to enforce, by
proceeding at law or in equity, all restrictions, conditions, covenants, reservations, liens and
charges now or hereafter imposed by the provisions of this Declaration. Failure by the Association
or by any Owner to enforce any covenants or restrictions herein contained will in no event be
32
deemed a waiver of the right to do so thereafter. The provisions of this Section will be in addition
to and not in limitation of any rights or remedies provided in other Sections of this Declaration.
14.03 Severability. Invalidation of anyone of these covenants or restrictions by judgment
or court order will in no way affect any other provisions hereof which provisions will remain in
full force and effect.
14.04 Construction. The Board of Directors has the right to construe the provisions of this
Declaration, and, in the absence of an adjudication by a court of competent jurisdiction to the
contrary, such construction will be final and binding as to all persons and entities benefited or
bound by the provisions of this Declaration.
14.05 Invalidity. The determination by a court of competent jurisdiction that any
provision of this Declaration is invalid for any reason will not affect the validity of any other
provision hereof.
14.06 Headings. The headings of the Articles and Sections of this Declaration are for
convenience only and will not affect the meaning or construction of the contents of this
Declaration.
14.07 Gender. Throughout this Declaration, the masculine gender will be deemed to
include the feminine and neuter, and the singular, the plural, and vice versa.
14.08 Dissolution. Termination of the Association will be according to the provisions of
the Articles of Incorporation. The Owners of Lots will not dissolve or disband the Association, nor
will 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 such other appropriate
governmental agency.
14.09 Legal Actions by Association. No judicial or administrative proceedings will be
commenced or prosecuted by the Association unless approved by at least 50% of all votes in
existence at the time. The foregoing will not apply to actions brought by the Association to enforce
against Owners the provisions of this Declaration, the imposition and collection of Assessments,
proceedings involving challenges to real property taxes, or counterclaims brought by the
Association in proceedings instituted against it, all of which may be pursued if approved by the
Board of Directors
14.10 Legal Actions by Owners. No Owner has the right to object, to challenge, and/or to
commence any legal proceeding under any act, power, or authority now in force or hereafter to be
enacted except after following such procedures as may be established by the Board of Directors
by rule or regulation consistent with the provisions of this Declaration. The Board of Directors, or
a committee as may be appointed by the Board of Directors, will hear claims from Owners
regarding alleged violations of this Declaration, Bylaws, and any rules and regulations (except for
violations with respect to assessment obligations) of the Association.
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14.11 Due Process. The Board of Directors, before imposing any charge or before taking
any action affecting one or more specific Owners, will afford such Person the following basic due
process rights, in accordance with Section 55.1-1819(C) of the POA Act:
(a) Notice. The Owner will be afforded prior written notice of any action (except when
an emergency requires immediate action) and, if notice is of a default or violation, an opportunity
to cure which is reasonable under the circumstances, prior to the imposition of any sanction. The
notice will also state that the Owner is entitled to a hearing, if a hearing is required pursuant to the
provisions of this Declaration. Notice of any violation or any hearing will be hand delivered or
sent by registered or certified United States mail, return receipt requested, to the Owner at such
Owner's address of record with the Association at least 14 days prior to such hearing.
(b) Hearing. If the Owner is entitled to a hearing pursuant to the provisions of this
Declaration and requests in writing a hearing before any charge is imposed or action taken, then
the imposition of the charge or the taking of the action will be suspended until the Owner has an
opportunity to be heard at a hearing at which the Board of Directors or ARB, as appropriate,
discusses such charge or action. Each Person so appearing has the right to be represented by such
Person's counsel, at such Person's own expense. The hearing result will be hand delivered or
mailed by registered or certified mail, return receipt requested, to the Owner at the address of
record with the Association within 7 days after the hearing.
(c) Fairness. The Board of Directors and the ARB will treat all Owners equitably, based
upon decision -making and due process procedures, standards and guidelines adopted by the Board
of Directors which, even if informal, will be applied to all Owners consistently.
[The remainder of this page intentionally left blank. Signatures follow on the next pages.]
34
IN WITNESS [THEREOF, the undersigned have executed this instrument as of the date
above.
STANLEY MARTIN HOMES, LLC, a Delaware
limited liability company
By: fJ �� /Yid
Name: r'
Title:
STATE OF �k r �ti vA
COUNTY OF av to -wit:
The foregoing instrument was acknowledged before mg thiskda, of 8.ltc7 , 2021, by
J✓eu �. (Lt the Noz4tclt 0-er"r'e1-fI ���of Stanley Martin
Homes, LLC, on behalf of laid limited liabili company.
N Y PU Ll
My commission expires: 3(Zt j2oLZ
Notary Registration No. -T 17 37 to a
Gregory Patrick ODonnell
NOTARY PUBLIC
Commonwealth of Virginia
Reg. # 7773760
My Commission Expires March 31, 2022
35
AVON PARK II COMMUNITY
ASSOCIATION, INC., a Virginia non -stock
corporation
By -
Name: LAukz#7 meg6m
Title: __r
STATE OF :
COUNTY OF Aj to -wit:
The foregoing instrument was acknowledged before me this A day of
Or, to be.,- , 202 ],by (a yr *C r r IGCbi'-e d✓ on behalf of
said Avon Park II Community Association.
NO OP UBL
My commission expires: 'J'; t'2 °L z
Notary Registration No, -ri-7 `700 Gregory PatrickODonnell
NOTARY PUBLIC
commonwealth of Virginia
Reg. # 7773760
My Commission Expires March 31, 2022
36
EXHIBIT A
Legal Description
of the Property
All those certain tracts or parcels of land located in Albemarle County, Virginia, shown as Lots 1
through 28 (inclusive), Open Space A, Open Space B, Anoko Court, Hathaway Street and Desoto
Drive on that certain subdivision plat prepared by Roudabush, Gale & Associates, Inc., dated
December 23, 2020, revised February 24, 2021, further revised May 24, 2021, further revised JuIv
21, 2021, and last revised August 13, 2021, and entitled "SUBDIVISION PLAT FOR AVON
PARK II TAX MAP 90 PARCEL 31 SCOTTSVILLE DISTRICT, COUNTY OF ALBEMARLE,
VIRGINIA", which plat was recorded in the Clerk's Office of the Circuit Court of Albemarle
County, Virginia, immediately prior hereto.