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HomeMy WebLinkAboutSUB201600044 Declaration of Covenants, Conditions and Restrictions rC iftwo DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS FOR CHESTERFIELD LANDING THIS DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS (the "Declaration")is made as of ,2016,by SM CHARLOTTESVILLE.LLC, a Virginia limited liability company, its successors and assigns (hereinafter referred to as "Declarant"). RECITALS: A. As evidenced by that certain deed recorded among the land records of Albemarle County,Virginia(the"Land Records"),in Deed Book 4670,page 346,the Declarant is the owner of that certain real property located in the County of Albemarle, Virginia (the "County"), consisting of 19.50 acres, more or less, comprised of Tax Map Parcels 05600-00-00-03600 and 05600-00-00-036A0 (the "Property"). B. The Declarant desires to create on the Property a residential community which shall have permanent open spaces and other common facilities for the benefit of the community, to provide for the preservation of the values of the community and such other areas as may be subjected to this Declaration, and to provide for the maintenance of the open spaces and other facilities. C. To this end, the Declarant intends to subject the Property to certain covenants, conditions,restrictions, easements, charges and liens, it being intended that they shall run with the Property and shall be binding on all persons or entities having or acquiring any right,title or interest in the Property or any part thereof and shall inure to the benefit of each owner thereof. D. The Declarant has deemed it desirable for the efficient preservation of the values of said community to create an association to which shall be delegated and assigned the powers of owning, maintaining and administering the common areas and facilities, administering and enforcing the covenants and restrictions made in and pursuant to this Declaration and collecting and disbursing the assessments and charges hereafter created. E. The Declarant has incorporated the Chesterfield Landing Homeowners Association, Inc. (the "Association"), as a non-stock corporation under the laws of the Commonwealth of Virginia for the purpose of exercising the functions of the Association. NOW, THEREFORE, the Declarant, for and in consideration of the premises and the covenants contained herein, hereby establishes and conveys to each owner of a Lot, as hereinafter defined, with the express concurrence of the Association, mutual, non-exclusive rights, privileges and easements of enjoyment on equal terms and in common with all other owners of Lots in and to the use of any Common Area, as hereinafter defined, and facilities; and further, the Declarant and the Association declare the Property to be held, transferred, sold, conveyed and occupied subject to the covenants, conditions, restrictions, reservations, easements, charges and liens hereinafter set forth,which are for the purpose of protecting the value and desirability of,and shall run with,the Property and be binding on all parties having any right,title or interest in the Property or any part thereof, their respective successors and assigns, and shall inure to the benefit of each owner thereof. ARTICLE I DEFINITIONS Section 1. "Annual Assessments" shall mean the Annual General Assessments (as hereafter defined in the Article and Section hereof titled, "ASSESSMENTS. Annual Assessments") and, if applicable, the Annual Service Assessments (as hereafter defined in the aforementioned "Assessments"Article). Section 2. "Architectural Character"shall mean the scale,style,design,material,quality of construction and material, color and/or texture of a Structure (as hereinafter defined in the Article and Section hereof titled, "DEFINITIONS. Structure"). Section 3. "ARB" shall mean the Architectural Review Board of the Association. Section 4. "Assessment" shall mean any fee, charge, expense, or other costs assessed against an Owner or Lot by the Association pursuant to this Declaration. Section 5. "Association" shall mean and refer to Chesterfield Landing Homeowners Association, Inc., a Virginia non-stock corporation formed pursuant to the Virginia Property Owners' Association Act, its successors and assigns. Section 6. "Board of Directors" or "Board" shall mean and refer to the executive and administrative entity established by the Articles of Incorporation of the Association as the governing body of the Association. Section 7. "Builder" shall mean and refer to any person or entity (other than the Declarant) who owns at any one time two (2) or more Lots for the purpose of constructing a Dwelling Unit for sale on each of such Lots. Section 8. "Common Area" shall mean and refer to any real property (including the improvements thereto or facilities located thereon) owned by the Association for the common use and enjoyment of the Members, and shall include any private streets shown on a recorded plat of the Property and located within the Common Area's boundaries, and shall further include any easements granted to the Association and/or for the benefit of the residents of the community, at large. Section 9. "Common Facilities" shall mean and refer to improvements, structures and facilities owned and/or operated by the Association(if any)for the common benefit of the Owners, 2 including without• limitation, stonnwater management ponds, trails, paths, recreational and meeting facilities, as well as any other facilities which the Association owns and/or operates. Section 10. "County" shall mean and refer to Albemarle County, Virginia, and/or, the proper governmental authorities of Albemarle County, Virginia, as the context may require. Section 11. "Declarant" shall mean and refer to SM Charlottesville, LLC, a Virginia limited liability company, its successors or assigns (i)to which the Declarant assigns any or all of its rights as Declarant pursuant to this Declaration by assignment recorded in the Land Records, (ii) who is a purchaser at foreclosure of the Property or a grantee in a deed in lieu of foreclosure from the Declarant, or (iii) who assumes control as Successor Declarant, as defined herein, and subject to a separate agreement between the Declarant and Successor Declarant. If the Declarant consists of more than one(1)person or entity, the rights and obligations of the Declarants shall be several and shall be based upon and apportioned in accordance with the number of Lots owned by each Declarant. Section 12. "Declarant Control Period" shall mean that period of time that commences with the recordation of this Declaration and ends at such time as the Declarant(including Successor Declarant, or other successors pursuant to an Assignment recorded among the Land Records), no longer owns a Lot). Notwithstanding the foregoing, in the event the Declarant, its successors or assigns re-acquires a Lot,then the Declarant Control Period shall recommence. Section 13. "Declaration" shall mean and refer to this Declaration of Covenants, Conditions and Restrictions applicable to the Property, which Declaration is recorded in the Land Records, and which amends and restates the Original Declaration in its entirety. Section 14. "Dwelling Unit" shall mean and refer to any improvement to the Property intended for any type of independent ownership for use and occupancy as a residence by a single household and shall,unless otherwise specified, include within its meaning(by way of illustration but not limitation) patio or zero lot line homes and detached homes. Section 15. "Land Records" shall mean the land records of Albemarle County, Virginia. Section 16. "Lot" shall mean and refer to any plot of land created by and shown on a lawfully recorded subdivision plat of the Property upon which a Dwelling Unit could be constructed in accordance with applicable zoning ordinances, with the exception of the Common Area and streets dedicated to public use. Section 17. "Member" shall mean and refer to every person or entity who holds a membership in the Association, as more particularly set forth in the Article hereof titled, "MEMBERSHIP". Section 18. "Mortgagee" shall mean and refer to any person or entity secured by a first mortgage or first deed of trust on any Lot or the Common Area who has notified the Association of this fact in writing by Registered Mail or by Certified Mail-Return Receipt Requested. 3 fir++` ;"�✓ ' Section 19. "Owner" shall mean and refer to the record owner, whether one(l) or more persons or entities, of the fee simple title to any Lot, but excluding those holding such interest in a Lot solely by virtue of a contract to purchase a Lot or as security for the performance of an obligation. If more than one (1) person or entity is the record owner of a Lot, the term "Owner" as used herein shall mean and refer to such owners collectively, so that there shall be only one(1) Owner of each Lot. Section 20. "Property" shall mean and refer to that certain real property described in the Article and Section hereof titled, "PROPERTY SUBJECT TO THIS DECLARATION, ANNEXATION AND WITHDRAWAL. The Property", and further shown on Exhibit A which is attached hereto and incorporated herein by this reference, and such additions thereto which, from time to time,may be brought within the jurisdiction of the Association. Section 21. "Public Entity" shall mean and refer to any governmental entity or agency, including,without limitation,the Board of Supervisors of Albemarle County,Virginia,the School Board of Albemarle County,Virginia,the Virginia Department of Transportation,any legislatively created Water and/or Sewer Authority, and similar governmental entities. The phrase "Public Entity" shall not include charitable,volunteer,or civic organizations,including,without limitation, churches, volunteer fire departments and rescue squads, and organizations such as the YMCA. Section 22. "SM Charlottesville" shall mean SM Charlottesville,LLC, a Virginia limited liability company. Section 23. "Structure" shall include, but not be limited to, any building or portion thereof, wall, deck, play equipment, greenhouse, skylight, solar panel, weathervane, fence, pool, pavement, driveway or appurtenances to any of the aforementioned. Section 24. "Supplementary Declaration" shall mean and refer to a supplement to this Declaration which adds additional real property to the real property encumbered by this Declaration. Such Supplementary Declaration may(but is not required to) impose,expressly or by reference, additional restrictions and obligations on the land subjected to that Supplementary Declaration. ARTICLE II PROPERTY SUBJECT TO THIS DECLARATION, ANNEXATION AND WITHDRAWAL Section 1. The Property. The real property which is and shall be held, transferred, sold, conveyed and occupied subject to this Declaration is that certain real property located in the County consisting of 17.14 acres, more or less, comprised of County Tax Map Parcels 05600-00- 00-03600 and 05600-00-00-036A0, all as more specifically described on Exhibit A attached hereto and incorporated herein by this reference,as the same may in the future be duly subdivided, and such additions thereto which, from time to time,maybe brought within the jurisdiction of the Association pursuant to the terms and provisions of this Declaration. Section 2. Annexation Without Approval of Class"A" Membership.The Declarant hereby 4 the land so dedicated or conveyed. Notwithstanding the foregoing, if such portion of the Property is subsequently re-conveyed to an entity which is not a Public Entity, then this Declaration shall once again apply to the portion of the Property no longer owned by a Public Entity. ARTICLE III MEMBERSHIP Every Owner of a Lot which is subject, by covenants of record, to assessment by the Association shall be a Member of the Association. Membership shall be appurtenant to and may not be separated from ownership of any Lot which is subject to assessment by the Association. Ownership of such Lot shall be the sole qualification for membership. No Owner shall have more than one (1) membership in the Association for each Lot it owns. In the event a person or entity owns more than one(1) Lot, then such person or entity shall be considered a Member for each and every such Lot, thereby entitling the Member to cast a vote for each Lot owned. ARTICLE IV VOTING RIGHTS Section 1. Classes. The Association shall have two (2)classes of voting membership: A. Class A: Class A Members shall be all Members and Builders with the exception of the Class B Member. A Class A Member shall be entitled to one (1) vote for each Lot in which it holds the interest required for membership by the Article hereof titled "Membership". B. Class B: The Class B Member shall be the Declarant or, as applicable, a Successor Declarant. A Class B Member shall be entitled to four (4) votes for each Lot in which it holds the interest required for membership by the Article hereof titled "Membership". Class B membership shall cease, and a Class A membership with one (1) vote for each Lot in which it holds an interest shall issue, on the happening of any of the following events, whichever occurs first: 1. upon the filing with the Secretary of the Association of a written resignation of membership by the Class B Member; or 2. twenty(20) years from the date of recordation of this Declaration in the Land Records,unless such period is revived or extended, as set forth in the Article and Section hereof titled, "VOTING RIGHTS. Annexation". Section 2. Annexation. Upon annexation of additional properties pursuant to this Declaration, and in the event that Class B membership shall have ceased as hereinabove provided, Class B membership shall be revived with respect to all Lots owned by the Declarant,which Class B membership shall cease and be converted to Class A membership on the happening of any of the following events, whichever occurs first: 6 '44oW ,4e110' A. upon the filing with the Secretary of a written resignation of membership by the Class B Member; or B. twenty (20) years from the date of recordation in the Land Records of the document annexing such property. Section 3. Multiple Ownership Interests. If more than one (1) person or entity holds an ownership interest in any Lot, the vote for such Lot shall be exercised as the owners of the Lot among themselves determine and may be exercised by any one(1)of the people or entities holding such ownership interest, unless any objection or protest by any other holder of such ownership interest is made prior to the completion of a vote,in which case the vote for such membership shall not be counted,but the Member whose vote is in dispute shall be counted as present at the meeting for quorum purposes if the protest is lodged at such meeting. In no event shall more than one(1) vote be cast with respect to any Lot owned by a Class A Member. ARTICLE V PROPERTY RIGHTS Section 1. Member's Easements of Enjoyment. The Declarant and every Member shall have a right and easement of enjoyment in and to the Common Area, and such easement shall be appurtenant to and shall pass with the title to every Lot, subject to: A. the right of the Association to charge reasonable admission and other fees for the use of any recreational facility located on the Common Area; B. the right of the Association to limit the number of guests of Members on the Common Area; C. the right of the Association to adopt and enforce rules and regulations governing the use of the Common Area and Common Facilities, including, without limitation, the imposition of charges for the violation thereof; D. the right of the Association to suspend the voting rights,the right to run for office within the Association, and rights of a Member to the use of any recreational facilities or nonessential services offered by the Association, to the extent that access to the Member's Lot through the Common Area is not precluded, for any period during which any assessment against such Member's Lot remains unpaid or for a period not to exceed sixty(60) days for any infraction of its published rules and regulations; E. the right of the Association to borrow money for the improvement, maintenance or repair of the Common Area or Common Facilities and in aid thereof, with the assent of at least two-thirds (2/3) of the votes of each class of Members who are entitled to vote and who are voting in person or by proxy at a meeting duly called for this purpose at which a quorum is present,to mortgage the Common Area, subject to this Declaration and the easement of enjoyment created hereby, and to acquire property encumbered by a lien or liens of a mortgage or deed of trust; provided that any such mortgage of the Common Area must state that it is subject to 7 this Declaration and the easement of enjoyment created hereby and shall not be in conflict with its designation as "open space"; F. the right of the Association at any time, or upon dissolution of the Association, and consistent with the then-existing zoning ordinances of the County and its designation of the Common Area as "open space", to dedicate or transfer all or any part of the Common Area to an organization conceived and organized to own and maintain common open space, or, if such organization will not accept such a transfer, then to the Board of Supervisors of the County or other appropriate governmental agency, or, if such a transfer is declined, then to another entity in accordance with the laws governing the same, for such purposes and subject to conditions as may be agreed to by the Members. Except in the case of dissolution, any such dedication or transfer shall have the assent of at least two-thirds (2/3) of each class of Members entitled to vote and who are voting in person or by proxy at a meeting duly called for this purpose at which a quorum is present, written notice of which shall be sent to all Members not less than twenty-five (25) days nor more than fifty (50) days in advance of the meeting setting forth the purpose of the meeting. Upon such assent and in accordance therewith, the officers of the Association shall execute the necessary documents. The resubdivision or adjustment of the boundary lines of the Common Area and the granting of easements by the Association shall not be deemed a transfer within the meaning of this Article; G. the right of the Association to grant, with or without payment to the Association, licenses, rights-of-way and easements through or over any portion of the Common Area. The foregoing shall not be construed, however, to permit acquisition of or damage to any improvements, structures or installations located upon the Common Area without the payment of damages, including severance or resulting damages, if any, to the Association absent the Association's consent; H. the right of the Association to lease the Common Area; and I. the right of the Declarant or, following the Declarant Control Period, the Association to resubdivide and/or adjust the boundary lines of the Common Area as any deem necessary for the orderly development of the subdivision. Section 2. Delegation of Use. Any Member may delegate its right of enjoyment to the Common Area and Common Facilities to the members of its immediate household, its tenants or contract purchasers who reside on the Member's Lot. However, by accepting a deed to such Lot, every Owner covenants that should the Owner desire to rent its Lot, the rental agreement shall contain specific conditions which require the tenant to abide by all Association covenants, rules and regulations, and any Owner desiring to rent a Lot further covenants that the tenant will be provided a complete set of all Association covenants, rules and regulations. Furthermore, any lease or sublease shall, whether or not expressly set forth therein, be deemed to contain the foregoing covenant. ARTICLE VI POWERS AND DUTIES OF THE ASSOCIATION 8 4.00 Section 1. Discretionary Powers and Duties. The Board of Directors, on behalf of the Association, shall have all powers for the conduct of the affairs of the Association which are enabled by law and not specifically reserved to Members or the Declarant,including but not limited to the following powers and duties, which may be exercised in its discretion: A. to enforce any covenants or restrictions which are imposed by the terms of this Declaration or which may be imposed on any part of the Property. Nothing contained herein shall be deemed to prevent the Owner of any Lot from enforcing any building restriction in its own name. The right of enforcement shall not serve to prevent such changes, releases or modifications of the restriction or reservations placed upon any part of the Property by any party having the right to make such changes, releases or modifications in the deeds, contracts, declarations or plats in which such restrictions and reservations are set forth; and the right of enforcement shall not have the effect of preventing the assignment of those rights by the proper parties wherever and whenever such right of assignment exists. Neither the Association nor the Board shall have a duty to enforce the covenants by an action at law or in equity if;in its or their opinion, such an enforcement is not in the Association's best interest. The expenses and costs of any enforcement proceedings shall be paid out of the general fund of the Association as herein provided for;provided,however, that the foregoing authorization to use the general fund for such enforcement proceedings shall not preclude the Association from collecting such costs from the offending Owner; B. to provide such light as the Association may deem advisable on streets and the Common Area and to maintain any and all Common Facilities which may exist or be erected from time to time on the Common Area; C. to build and operate Common Facilities upon the Common Area; D. to use the Common Area and Common Facilities erected thereon, subject to the general rules and regulations established and prescribed by the Association and subject to the establishment of charges for their use; E. to mow and resow the grass and to care for, spray, trim, protect, plant and replant trees, shrubs and other landscaping on the Common Area and to pick up and remove from the Common Area all loose material,rubbish, filth and accumulation of debris; and to do any other thing necessary or desirable in the judgment of the Association to keep the Common Area in neat appearance and in good order; F. to exercise all rights,responsibilities and control over any easements which the Association may from time to time acquire, including but not limited to those easements specifically reserved to the Association in the Article hereof entitled "Easements"; G. to create, grant and convey easements and licenses upon, across, over and under all Common Area, including but not limited to easements for the installation, replacement, repair and maintenance of utility lines serving the Property; H. to create subsidiary corporations and other entities in accordance with Virginia law; 9 1. to employ counsel and institute and prosecute such suits as the Association may deem necessary or advisable,and to defend suits brought against the Association; J. to retain, as an independent contractor or employee, a manager of the Association and such other employees or independent contractors as the Board deems necessary, and to prescribe the duties of employees and scope of services of independent contractors; K. to enter(or have the Association's agents or employees enter)on any Lot to perform emergency repairs or to do other work reasonably necessary for the proper maintenance or protection of the Property; L. to enter(or have the Association's agents or employees enter)on any Lot to repair,maintain or restore the Lot,all improvements thereon,and the exterior of the Dwelling Unit and any other improvements located thereon if such is not performed by the Owner of the Lot, and to assess the Owner of the Lot the costs thereof, such assessment to be a lien upon the Lot equal in priority to the lien provided for in the Article and Section hereof titled "ASSESSMENTS. Creation of the Lien and Personal Obligation of Assessments';provided,however, that the Board shall only exercise this right after giving the Owner written notice of its intent at least fourteen (14) days prior to such entry; M. to resubdivide and/or adjust the boundary lines of the Common Area but only to the extent such resubdivision or adjustment does not contravene the requirements of zoning and other ordinances applicable to the Property; N. to adopt,publish and enforce rules and regulations governing the use of the Common Area and Common Facilities and with respect to such other areas of responsibility assigned to it by this Declaration, except where expressly reserved herein to the Members. Such rules and regulations may grant to the Board the power to suspend a Member's voting rights and the Member's right to use Common Facilities or non-essential services for non-payment of assessments and to assess charges against Members for violations of the provisions of the Declaration or rules and regulations,as provided for in the Virginia Property Owners' Association Act; O. to declare the office of a member of the Board vacant in the event such member shall be absent from three (3) consecutive regular meetings of the Board; P. to enter into contracts on behalf of all Owners and Lots for the routine pick- up and disposal of trash and debris, the cost of which contract shall be subject to the imposition of assessments; and Q. to grant and convey or dedicate portions of the Common Area for public use, including without limitation, for public street purposes. Section 2. Mandatory Powers and Duties. The Association shall exercise the following powers,rights and duties: 10 *sot A. to accept title to the Common Area and to hold and administer the Common Area for the benefit and enjoyment of the Owners and occupiers of Lots,and to cause the Common Area and Common Facilities to be maintained in accordance with the standards adopted by the Board; B. to transfer part of the Common Area to or at the direction of the Declarant, for the purpose of adjusting boundary lines or otherwise in connection with the orderly subdivision or development of the Property, but only to the extent such resubdivision or adjustment does not contravene the requirements of zoning and other ordinances applicable to the Property; C. after the termination of the Class B membership, to obtain and maintain, without interruption, liability coverage for any claim against a director or officer for the exercise of its duties and fidelity coverage against dishonest acts on the part of directors, officers, trustees, managers, employees or agents responsible for handling funds collected and held for the benefit of the Association. The fidelity bond shall cover the maximum funds that will be in the custody of the Association or its management agent at any time while the bond is in place. The fidelity bond coverage shall, at a minimum, be equal to the sum of three (3) months' Annual Assessment of all Lots in the Property plus the Association's reserve funds, if any; D. to obtain and maintain without interruption a comprehensive coverage of public liability and hazard insurance covering the Common Area and easements of which the Association is a beneficiary, if available at reasonable cost. Such insurance policy shall contain a severability of interest clause or endorsement which shall preclude the insurer from denying the claim of an Owner because of negligent acts of the Association or other Owners. The scope of coverage shall include all coverage in kinds and amounts commonly obtained with regard to projects similar in construction, location and use. Further, the public liability insurance must provide coverage of at least One Million Dollars ($1,000,000.00) for bodily injury and property damage for any single occurrence; E. to provide for the maintenance of any and all (i) Common Facilities which may exist or be erected from time to time on the Common Area, including but not limited to street lights (including the payment of utility costs therefor), recreational facilities, entrance ways and entrance areas, (ii)easement areas of which the Association is the beneficiary and for which it has the maintenance responsibility, (iii) facilities, including but not limited to fences and signs authorized by the Association and erected on any easements granted to the Association, and (iv) street lights that may be constructed within the rights-of-way of any public streets within or adjacent to the Property and which the Commonwealth of Virginia or the local governmental authorities requires the Association to maintain (including the payment of utility costs therefor); F. to pay all proper bills, taxes, charges and fees for which the Association is responsible under this Declaration on a timely basis; and G. to maintain its corporate status. 11 ARTICLE VII ASSESSMENTS Section 1. Creation of the Lien and Personal Obligation of Assessments. Each Owner of any Lot(but not the Declarant, the Association, or any Builders)by acceptance of a deed therefor, whether or not it shall be so expressed in any such deed or other instrument of conveyance, is deemed to covenant and agree to pay to the Association: (a) Annual General Assessments (as hereinafter defined), (b) Annual Service Assessments (as hereinafter defined), (c) Special Assessments (as hereinafter defined) for capital improvements or other specified items, (d) Restoration Assessments (as hereinafter defined), and (e) an Initial Assessment (as hereinafter defined). Such assessments are to be established and collected as hereinafter provided. The Association's Annual, Special, Restoration and Initial Assessments, together with interest thereon and costs of collection thereof, as hereinafter provided, shall be a charge on the Lot and shall be a continuing lien upon the Lot against which each assessment is made. Each such assessment, together with interest, late fees, costs, and reasonable attorneys' fees, shall also be the personal obligation of the person who was the Owner of such Lot at the time the assessment fell due and shall not be the personal obligation of a successor in interest unless expressly assumed by such successor. The Annual, Special, and Restoration Assessments, when assessed for each year, shall become a lien on the Lot in the amount of the entire Annual, Special, or Restoration Assessment, but shall be payable in equal installments collected on a monthly, bi-monthly, quarterly, semi- annual or annual basis as determined upon resolution of the Board. Section 2. Purpose of Assessment. The assessments levied by the Association shall be used to promote the recreation, health, safety and welfare of the residents and Owners of the Property; for the administration of the Association; for the enforcement of the provisions of the Declaration, or any other Association document, including but not limited to management, legal and accounting services; for the improvement and maintenance of the Common Area, including but not limited to the payment of taxes,construction of improvements and maintenance of services and facilities devoted to these purposes or related to the use and enjoyment of the Common Area (including, but not limited to, storm water management and storm drainage facilities and easements) or other property which the Association has the obligation to maintain; and, for such other purposes as the Board may determine to be appropriate. Section 3. Annual Assessments. A. The Association must levy in each of its fiscal years an annual general assessment (the "Annual General Assessment") against each Lot. The amount of such Annual General Assessment shall be established by the Board and written notice of such shall be sent to every Owner at least thirty (30) days in advance of the commencement of each Annual General Assessment period. The Annual General Assessment shall become applicable as to a Lot at such time as an occupancy permit is issued for such Lot. The first Annual General Assessment shall be adjusted according to the number of months remaining in the calendar year. B. The amount of the Annual General Assessment shall be determined by the Board according to its estimate of the cost of providing services or rights of use which are common to all of the Lots. 12 Some '411o' C. The Association may also, but shall not be required to, levy in each of its fiscal years a separate annual assessment (the "Annual Service Assessment") against specific Lots within the Property. The amount of the Annual Service Assessment shall be determined by the Board for specified Lots constituting an Annual Service Assessment group("Annual Service Group") according to its estimated cost of providing services, reserves or rights of use specific to Lots within an Annual Service Group, which services or rights are not enjoyed by all of the Members and are primarily for the benefit of the Members owning a Lot within an Annual Service Group. The amount of an Annual Service Assessment shall be the same for each Lot within an Annual Service Group,but need not be uniform with any other Annual Service Assessment,if any, imposed upon any other Lot within any other Annual Service Group. Section 4. Special Assessment. In addition to the Annual Assessments authorized above, the Association may levy,in any assessment year, a special assessment applicable to that year only for the purpose of defraying, in whole or in part,the cost of any construction,reconstruction,repair or replacement of capital improvements upon the Common Area or Common Facilities, including the fixtures and personal property related thereto, or for any other specified purpose(the "Special Assessment"). The Special Assessment shall be levied against all of the Lots within the portions of the Property so benefiting, pm rata according the degree of benefit received by each Lot ("Special Assessment Group"). The amount of the Special Assessment shall be the same for each Lot within a Special Assessment Group,but need not be uniform with the Special Assessment imposed on Lots within other portions of the Property. To be effective, any such assessment shall have the assent of more than two-thirds (2/3) of the votes of each class of Members within the affected portions of the Property,who are entitled to vote and who are voting in person or by proxy at a meeting duly called for this purpose at which a quorum is present, written notice of which setting forth the purpose of the meeting shall be sent to all Members and the Declarant not less than thirty(30) days nor more than sixty(60) days in advance of the meeting. Section 5. Restoration Assessment. The Association may levy and impose an Assessment upon any Lot for any charges incurred by the Association related to action taken to bring a Lot into compliance with the provisions of this Declaration, or any other Association document, due to the failure of an Owner to maintain a Lot in accordance therewith, or the enforcement of any applicable laws of any governmental authority, as more particularly set forth in this Declaration (each, a "Restoration Assessment"). Written notice specifying (i) the amount of the Restoration Assessment due, and (ii) the number and amounts of the installments by which such Restoration Assessment is to be paid, shall be given to the Owner of each Lot subject thereto. Section 6. Quorum for any Action Authorized Under Special Assessment Provision. At the first calling of a meeting under the Article and Section hereof titled, "ASSESSMENTS. Special Assessment", the presence at the meeting of Members or proxies entitled to cast sixty percent (60%)of all the votes of each class of Members shall constitute a quorum. If the required quorum does not exist at any such meeting, another meeting may be called subject to the notice requirements set forth in said "Special Assessment"Section herein, and to applicable law, and the required quorum at any such subsequent meeting shall be one-half(1/2) of the required quorum at the preceding meeting. No such subsequent meeting shall be held more than sixty (60) days following the preceding meeting. 13 Section 7. Initial Assessment. Each initial purchaser of a Lot(but not including a Builder, the Association or the Declarant) shall pay to the Association at settlement an initial assessment (the "Initial Assessment") in the amount of Five Hundred and No/100 Dollars ($500.00). The Declarant, the Association, and the Builders, however, shall not be required to pay any Initial Assessment on the Lots they own. Such funds may also be used for certain prepaid items, equipment, supplies, organizational costs, start-up costs, operating expenses or other costs as the Board of Directors may determine. Section 8. Rate of Assessment. The Annual General Assessment shall be fixed at a uniform rate for all Lots, and the Annual Service Assessments and Special Assessments shall be fixed at a uniform rate for all Lots within each assessment group (but may be a different amount for Lots within different groups). Any Lots owned by the Declarant or a Builder shall be exempt from assessment. Section 9. Notice of Assessment and Certificate. Written notice of the Annual General Assessments shall be sent to every Member and written notice of the Annual Service Assessments shall be sent to every Member for which such Annual Service Assessment is applicable. The due dates for payment of the Annual Assessments shall be established by the Board. The Association shall, upon demand at any time, furnish a certificate in writing signed by an officer or authorized agent of the Association setting forth whether the assessments on a specified Lot have been paid. A reasonable charge may be made by the Board for the issuance of these certificates. Such certificates shall be conclusive evidence of payment of any assessment therein stated to have been paid. Section 10. Remedies of the Association in the Event of Default. If any assessment pursuant to this Declaration is not paid within thirty (30) days after its due date, the assessment shall bear interest from the date of delinquency at the higher of: (i) twelve percent (12%) per annum, or(ii)the judgment rate provided for in the Code of Virginia. In addition, in its discretion, the Association may: A. impose a penalty or late charge as previously established by rule; B. bring an action at law against the Owner personally obligated to pay the same and/or foreclose the lien against the Lot, and interest, costs and reasonable attorneys' fees of any such action shall be added to the amount of such assessment. A suit to recover a money judgment for nonpayment of any assessment levied pursuant to this Declaration,or any installment thereof, may be maintained without perfecting, foreclosing or waiving the lien provided for herein to secure the same; C. suspend a Member's voting rights, right to hold an office within the Association, and right to use Common Facilities or nonessential services offered by the Association to the extent that access to the Member's Lot through the Common Area is not precluded. No assessment shall be refunded in the event of suspension; and 14 *goy Nerie D. accelerate the due date of the unpaid assessment so that the entire balance shall become due, payable and collectible; and E. levy and impose a Restoration Assessment. No Owner may waive or otherwise escape liability for the assessments provided for herein by non-use of the Common Area or Common Facilities, abandonment of its Lot, or the failure of the Association or the Board to perform their duties. Section 11. Subordination of the Lien to Mortgages. The lien of the assessments provided for herein shall be subordinate to the lien of any properly recorded first trust or mortgage if such first trust or mortgage was recorded before the delinquent assessment was due. Sale or transfer of any Lot shall not affect the assessment lien. However, the sale or transfer of any Lot pursuant to a foreclosure of a first trust or mortgage, or any conveyance in lieu thereof, shall extinguish the lien of such assessments as to payment thereof which became due prior to such sale or transfer. No such sale or transfer shall relieve such Lot from liability for or the lien of any assessments which thereafter become due or from the lien thereof. Section 12. Exempt Property. Notwithstanding any other provision contained in this Declaration, the following property subject to this Declaration shall be exempt from the assessments created herein: (a) all property dedicated to and accepted by the County or another local public authority; (b) the Common Area (including without limitation all areas platted as Open Space in the Chesterfield Landing Subdivision on any);however, no land or improvements devoted to dwelling use shall be exempt from said assessments; and (c) any and all Lots and/or other property owned by the Declarant, Successor Declarant, the Association, or a Builder. ARTICLE VIII ARCHITECTURAL REVIEW BOARD Section 1. Composition. The ARB shall be comprised of three(3) or more members (but always an odd number of members). Members shall serve staggered three (3) year terms as determined by the Board. As long as the Declarant or a Builder owns any Lot within the Property, the ARB shall consist of two (2) committees (the "Committees"): the New Construction Committee and the Modification and Change Committee. Each committee shall be comprised of three (3) or more members. When neither the Declarant nor a Builder owns a Lot within the Property, the New Construction Committee shall be terminated. Actions by the ARB and the Committees shall be by majority consent of the members. Section 2. Method of Selection. The Declarant shall appoint the persons to serve on the New Construction Committee. The Board shall appoint the persons to serve on the Modification and Change Committee. After the termination of the Class B membership, no member of the Modification and Change Committee may be a Director. The Declarant may assign its rights under this Article to a Declarant or non-Declarant by a written assignment. A person may serve on the ARB and on both the New Construction Committee and the Modification and Change Committee. 15 Section 3. Removal and Vacancies. Members of the Modification and Change Committee of the ARB may be removed by the Board at any time with or without cause. Appointments to fill vacancies in unexpired terms shall be made in the same manner as the original appointment. The Declarant may remove any member of the New Construction Committee at any time, with or without cause. Section 4. Officers. At the first meeting of the Modification and Change Committee of the ARB following each annual meeting of Members, the Modification and Change Committee shall elect from among themselves a chairperson, a vice-chairperson and a secretary who shall perform the usual duties of their respective offices. Section 5. Duties. The Committees of the ARB shall regulate the external design and appearance of the Property and the external design, appearance and location of the improvements thereon in such a manner so as to preserve and enhance property values and to maintain harmonious relationships among structures and the natural vegetation and topography. During the period the ARB is comprised of the two (2) committees described above, the New Construction Committee shall regulate all initial construction, development or improvements on the Property. The Modification and Change Committee shall regulate all modifications and changes to existing improvements on the Property. In furtherance thereof,the ARB shall: A. through the appropriate Committee, review and approve or disapprove written applications of Owners for proposed improvements, alterations or additions to Lots (approval by a Committee shall be deemed to be approval by the ARB); B. periodically inspect the Property for compliance with adopted, written architectural standards and approved plans for alteration; C. adopt and publish architectural standards subject to the confirmation of the Board; these standards shall include, at a minimum, the provisions set forth in Article IX, Section 5 hereof; D. adopt procedures for the exercise of its duties and conduct its proceedings in accordance with Roberts Rules of Order - Revised, subject to such written amendments as the ARB shall enact, from time to time; and E. maintain complete and accurate records of all actions taken by the ARB and the Committees. Approval by the ARB of a correctly filed application shall not be deemed to be an approval by applicable governmental authorities nor a waiver of the applicant's obligation to obtain any required governmental approvals or to comply with applicable local ordinances or a representation or warranty by the ARB or the Association as to the fitness of a proposed structure or its compliance with applicable building codes or local ordinances. Section 6. Applications for Improvements or Alterations. Prior to construction or installation of any improvement, addition or alteration of a Lot or Structure, a written application 16 ("Application") must be filed with, and written approval obtained from, the ARB. Applications shall include plans and specifications, including, but not limited to, design, elevation views, material, shape,height,color and texture, and a site plan and/or house location survey showing the location of all improvements with grading and drainage modifications. Applications must be submitted by Registered or Certified Mail, Return Receipt Requested, to the ARB. The ARB reserves the right to require any additional information it deems reasonably necessary in order to properly process and assess any Application. The ARB reserves the right to deny any Application which may result in a negative impact on surrounding areas. Owners are solely responsible for determining the necessity of, and obtaining the approval of, any appropriate authority or governmental agency, including obtaining any necessary construction permits, prior to construction or installation of any improvement, addition or alteration of a Lot or Structure. Section 7. Failure to Act. In the event the ARB(acting through the appropriate Committee) fails to approve or disapprove a correctly filed Application within sixty(60) days of the receipt of an Application sent by Registered Mail or Certified Mail-Return Receipt Requested, approval by the ARB shall be deemed granted, except for those applications for uses, additions or alterations prohibited by this Declaration or the architectural standards adopted by the ARB,in which case no disapproval is necessary to uphold the prohibition. Failure of the ARB or the Board to enforce the architectural standards or to notify an Owner of noncompliance with architectural standards or approved plans for any period of time shall not constitute a waiver by the ARB or the Board of the enforcement of this Declaration at any later date. Section 8. Enforcement. Any exterior improvement, addition, change or alteration made without application to, and approval of, the ARB shall be deemed to be in violation of these covenants and may be required by the Board to be restored to its original condition at the offending Owner's sole cost and expense. Section 9. Appeal. Any aggrieved party may appeal a decision of the ARB to the Board by giving written notice of such appeal to the Association or any director within twenty (20) days of the adverse ruling,which appeal must be submitted by Registered Mail or Certified Mail-Return Receipt Requested. ARTICLE IX RESTRICTIVE COVENANTS Section 1. Use. The Property shall be used exclusively for residential purposes except as provided in the Article and Section hereof titled, "RESTRICTIVE COVENANTS. Declarant's Activities", and except for facilities operated by the Association. The Declarant reserves the right pursuant to a recorded subdivision or resubdivision plat, to alter, amend, and change any lot line or subdivision plan or plat.. No building shall be erected, altered, placed or permitted to remain on any Lot other than one Dwelling Unit and appurtenant structures, approved by the ARB and appropriate governmental authorities, for use solely by the occupant of the Dwelling Unit. Section 2. Maintenance. An Owner shall, at all times, maintain its property and all appurtenances thereto in good repair and in a state of neat appearance. 17 A. Structure Exteriors. The exteriors of all Structures shall be kept in good maintenance and repair. No Structure shall be permitted to stand with its exterior in an unfinished condition for longer than six (6) months after the commencement of construction. In the event of fire, windstorm or other damage, the exterior of a Structure shall not be permitted to remain in a damaged condition for longer than three (3)months, unless expressly permitted in writing by the Board or the Declarant. B. Vegetation. All grassy areas of a lawn shall be kept mowed and shall not be permitted to grow beyond a reasonable height. C. Sight Lines. No fence, wall, tree, hedge or shrub shall be maintained in such a manner as to obstruct sight lines for vehicular traffic. D. Removal of Trees. Except as required for proper vehicular sight lines, no tree with a diameter greater than four inches (4") measured two feet (2') above ground level shall be removed without the approval of the ARB. E. Water Drainage. All natural water drainage patterns or swales of a Lot shall be properly maintained and preserved so as to not impede or alter the natural drainage patterns and/or swales of a Lot, or which causes the discharge or diversion of water onto neighboring Lots or the Common Area, unless satisfactory alternates approved in writing by the ARB have been provided. Section 3. Nuisance. No noxious or offensive activity shall be carried on upon the Property, nor shall anything be done or placed thereon which is or may become an annoyance or nuisance to the neighborhood. A. Animals. No animal or livestock of any kind shall be raised,bred, kept,or allowed to remain on any Lot other than the usual and common household pets, provided, however, that: (1)no pet shall be kept,bred,or maintained for any commercial purposes; (2)household pets must be kept and contained on a lot within an approved fence enclosure (for the purposes of this sub- section, electrical fences do not constitute fence structures which need to be approved); (3) no animals shall be kept, chained or tied to a stake of any kind; (4) no "runs" shall be erected or permitted on the lots; (5) no person shall keep, permit and/or cause the keeping of any animal otherwise allowed which habitually or frequently makes such sounds, cries or other utterances as may disturb the quiet, comfort or repose of any person within the neighborhood; (6) any pet that is not on its Owner's Lot shall be on a leash and accompanied by a responsible person; and (7) up to four(4) hens (and no roosters), are allowed within a Lot in an appropriately sized enclosure. A clean, enclosed dry shelter with a surrounding fenced outdoor area must be available with minimum floor area per hen of three (3) square feet and one (1) square foot of window per 15 square feet of floor area. Coops must be behind the back corners of the dwelling and 15 feet from any Lot boundary line unless within a fenced backyard, and any such keeping of hens shall be subject to any rules or regulations which the Board of Directors may, from time to time, in its reasonable discretion promulgate. Prior to keeping any hens on a Lot, Owners must (1) obtain the written approval of the ARB, and (2) certify to the ARB that they have read, understand, and will 18 Norio comply with the provisions of any present or future County ordinances pertaining to animals, fowl, and/or poultry, as well as any rules or regulations established by the Board of Directors. Notwithstanding any of the foregoing, any keeping of animals or poultry on any Lot shall be subject to the terms and provisions of any applicable County ordinances. B. Utilities. All telephone, electric and other utility lines shall be installed and located underground, unless otherwise approved by the ARB. C. Lighting. No exterior lighting on a Lot shall be directed outside the boundaries of the Lot. Exterior lighting which results in an adverse visual impact to adjacent Lots, whether by location, wattage or other features, is prohibited. The ARB shall have the right to determine whether or not exterior lighting results in an adverse visual impact,which decision may be appealed to the Board. D. Laundry. No clothing, laundry or wash shall be aired or dried on any portion of the Property within public view. E. Trash. Trash shall be collected and stored in trash receptacles only and not solely in plastic bags. Trash and garbage receptacles shall not be permitted to remain in public view, except on days of trash collection, and except those receptacles designed for trash accumulation located in the Common Area. No accumulation or storage of litter, new or used building materials, or trash of any kind shall be permitted on the exterior of any Dwelling Unit. The Association shall have the right, upon seven (7) days' notice, to remove from a Lot, at a Lot Owner's sole expense and cost, any trash or debris it deems detrimental to the health and/or overall character of the Property. F. Vehicles. No inoperable, junk, unregistered, unlicensed or uninspected vehicle shall be kept on the Property. No portion of the Property shall be used for the repair of a vehicle. No vehicles shall be parked on any Lot except within a garage or on an improved driveway or parking area. G. Commercial Vehicles. No commercial or industrial vehicle, such as but not limited to moving vans, trucks, tractors, trailers, vans, wreckers, tow trucks, hearses and buses, shall be regularly or habitually parked or parked overnight on the Property, except upon the prior written approval of the ARB. H. Recreational Vehicles. No recreational vehicles or equipment, such as but not limited to boats, boating equipment, personal watercraft (e.g. jet skis), travel trailers, horse trailers, camping vehicles or camping equipment shall be parked on the Property without the prior, written approval of the ARB, as to location, size, screening and other relevant criteria. The Association shall not be required to provide a storage area for these vehicles. 1. Towing. The Association shall have the right to tow any vehicle parked or kept in violation of the covenants contained within this Article, upon twenty-four (24) hours' written notice and at the vehicle owner's sole expense. 19 Now J. Construction Debris. During construction of improvements on any Lot, the Owner shall maintain its Lot in an orderly fashion, and shall remove all debris and equipment in a timely fashion. All roads and pedestrian access ways around the Lot shall be kept free from equipment, building materials and dirt. Section 4. Modification. No modification or alteration of any Lot,Structure,or any portion thereof, shall be made, installed, constructed, erected, placed, altered and/or externally improved on any Lot or Structure until an Application has been properly filed with, and approved by, the ARB in accordance with the Article and Section hereof titled, "ARCHITECTURAL REVIEW BOARD.Applications for Improvements or Alterations",and,if required,proper authority has been granted by appropriate authorities and, where required, appropriate construction permits obtained. A. Paint. Approval of the ARB is not required for repainting or re-staining a Structure or an element of a Structure to match its original color. However,prior written approval by the ARB is required for color changes to any Structure or portion thereof. Section 5. Structures. No Structure or addition to a Structure shall be erected, placed, altered or externally improved on any Lot until an Application has been properly filed with, and approved by, the ARB in accordance with the Article and Section hereof titled, "ARCHITECTURAL REVIEW BOARD. Applications for Improvements or Alterations", and, if required, proper authority has been granted by appropriate authorities and, where required, appropriate construction permits obtained. A. Exterior Composition. All Dwelling Unit and/or Structure exteriors shall first be approved in writing by the ARB. B. Water Drainage. No Structure shall be erected or built on any Lot which impedes the natural water drainage patterns or swales of a Lot, or which causes the discharge or diversion of water onto neighboring Lots or the Common Area, unless satisfactory alternates approved in writing by the ARB have been provided. C. Fences. No fence or enclosure shall be erected or built on any Lot until first approved in writing by the ARB as to location, height, material and design. Any fence or wall built on any Lot shall be maintained in a proper manner so as not to detract from the value and desirability of surrounding property. The standards for fences contained herein are in addition to any laws or ordinances applying to fencing, and do not relieve an Owner from compliance with such laws and ordinances. D. Antennae/Satellite Dishes. Standard TV antennas and other over-the-air reception devices (including satellite dishes) of less than one meter (39 inches) in diameter shall be permitted, subject to reasonable standards regarding placement, screening, maintenance and indemnity obligations, which may be adopted by the ARB from time to time, such standards to be in conformity with Federal Communications Commission Regulations (47 CFR 1.4000), as amended; provided, however, that all such rules relating to antennae and satellite dishes shall not unreasonably delay installation, interfere with reception or increase the cost. Should any 20 *4100' '4400 regulations adopted herein or by the ARB conflict with federal law, such rules as do not conflict with federal law shall remain in full force and effect. E. Signage. The only signs permitted on the Property shall be customary home and address signs and real estate sale or lease signs which have received the prior written approval of the ARB ("Permitted Signs"). No more than one (1) Permitted Sign shall be displayed to public view on any Lot, must be less than or equal to two (2) square feet in total surface area, and shall not be illuminated. All Permitted Signs advertising the property for sale or rent shall be removed within three (3) days from the date of the conveyance of the Lot or of the execution of the lease agreement, as applicable. All signage must be in conformance with Zoning Requirements. F. Failure to Maintain. In the event an Owner of any Lot shall fail to maintain such Lot and the improvements situated thereon as provided herein and otherwise in accordance with the provisions of this Declaration or any Rules and Regulations established from time to time by the Board of Directors, the Association, after(i) ten days' Notice to the Owner, such notice to include a description of the action intended to be taken, and(ii)approval by two-thirds vote of the Board of Directors, shall have the right to enter upon said Lot to correct drainage and to repair, maintain and restore the Lot and the exterior of the buildings and any other improvements erected thereon or to correct any violation of this Declaration or any Rules and Regulations. Such right shall also include the right: (i) to mow the grass thereon; (ii) to remove any debris from the Lot; (iii)to trim or prune any hedge,or planting that, in the opinion of the Board of Directors,by reason of its location or height or the manner in which it has been permitted to grow, is detrimental to the enjoyment of adjoining property or is unattractive in appearance; (iv) to repair or paint any fence thereon that is out of repair or not in harmony, with respect to design or color, with fencing on adjacent property, unless the design or color of such fence has been previously approved by the ARB; and (v) to do any and all things necessary or desirable in the opinion of the Board of Directors to place such Lot in a neat and attractive condition consistent with the intention of this Declaration. All costs related to such correction, repair or restoration shall become a Restoration Assessment upon such Lot and as such shall be regarded as any other assessment with respect to lien rights of the Association and remedies provided for herein for non-payment. Section 6. Leases. Any rental agreement for a Dwelling Unit must be subject to the rules and regulations set forth in this Declaration and in the other Association documents. Every such rental agreement must include a provision stating that any failure by the tenant, its household members or guests, to comply with the terms of such Association documents shall be a default under the rental agreement, and the Owner shall be responsible for enforcing this provision. In the event any such rental agreement fails to include the covenants set forth in this Declaration,all such covenants shall be deemed incorporated into the rental agreement. Section 7. Declarant's Activities. The provisions of this Article shall not apply to the development of or construction of improvements on the Property by the Declarant or its assigns. The Declarant and any Builder or their respective assigns may, during their construction and/or sales period, erect, maintain and operate real estate sales and construction offices, model homes, displays,signs and special lighting on any part of the Property and on or in any building or structure now or hereafter erected thereon. 21 Section 8. Rules and Regulations. The Association shall have the authority to adopt such rules and regulations regarding this Article as it may from time to time consider necessary or appropriate. ARTICLE X EASEMENTS Section 1. Blanket Easements. The Declarant grants, and the Association reserves, a blanket easement to the Association, its directors, officers, agents and employees,to any manager employed by or on behalf of the Association, and to all police, fire, ambulance personnel and all similar persons, to enter upon the Property in the exercise of the functions provided for by this Declaration, Articles of Incorporation, By-Laws and rules of the Association, and in the event of emergencies and in the performance of governmental functions. Section 2. Exercise of Easement Rights. When not an emergency situation or a governmental function, the rights accompanying the easements provided for in the Article and Section hereof titled, "EASEMENTS. Blanket Easements", shall be exercised only during reasonable daylight hours and then, whenever practicable, only after advance notice to, and with the permission of, any Owner or tenant directly affected. Section 3. Encroachments. If any improvement on the Property now or hereafter encroaches on any other portion of the Property by reason of(a) the original construction thereof by the Declarant or its assigns, which shall include, but not be limited to, any driveway which encroaches over a Lot's boundary line and draining of rainwater from roofs, (b) deviations within normal construction tolerances in the maintenance, repair, replacement or reconstruction of any improvement, or (c) the settling or shifting of any land or improvement, an easement is hereby granted to the extent of any such encroachment for both the encroachment and its maintenance for the period of time the encroachment exists. The owner of the encroaching improvement shall also have an easement for the limited purpose of maintenance of the encroaching improvement. This easement does not relieve any Owner or any other person from liability for such Owner's or other person's negligence or willful misconduct. Section 4. Development. The Declarant, a Builder and their respective agents and employees shall have a right of ingress and egress over the Common Area as required for construction on and development of the Property. Section 5. Utilities. So long as the Declarant or a Builder owns any Lots within the Property or owns any Additional Property, there is reserved to the Declarant and such Builder a right to grant non-exclusive easements over any Lot or Common Area for the purposes of installing, repairing and/or maintaining utility lines of any sort, including but not limited to storm drains and drainage swales, sanitary sewers, gas lines, electric lines and cables, water lines, telephone lines, telecommunication lines and cables, and the like, and for any purpose necessary for the Declarant or a Builder or their respective assigns to obtain the release of any bonds posted with a municipality,governmental agency or regulatory agency, and non-exclusive easements over 22 the Common Area to any municipal agency or private entity for any other purpose consistent with the "open space" and/or "recreation" designation thereof. Section 6. Release of Public Improvement Bonds. There is reserved to the Declarant and Builders an easement and the right to grant and reserve easements or to vacate or terminate easements across all Lots and Common Area as may be required by any governmental agency or authority or utility in connection with the release of improvement bonds or the acceptance of public streets for state maintenance with respect to the Property. Section 7. Declarant-Retained Easement Rights. Declarant expressly reserves and retains certain rights with respect to the ability to grant and establish easements. A. During the Declarant Control Period, there is reserved to the Declarant a non-exclusive easement over all Lots and the Common Area for the purposes of correcting drainage, regrading, maintenance, landscaping, mowing and erecting street intersection signs, directional signs,temporary promotional signs, entrance features,lights and wall features, and for the purpose of executing any of the powers, rights, or duties granted to or imposed on the Association herein. B. Declarant further reserves and retains the right, at any time hereafter, and from time to time, to grant such easements as may be deemed necessary and/or desirable in connection with the development or operation of the Property, including without limitation any easements requested or required by any Public Entity and/or provider of public utilities, including without limitation, Dominion Power Company and CenturyLink telephone company. Notwithstanding the foregoing, this retained right to grant easements shall not be utilized in such a manner that it materially and adversely interferes with the ability of a Member to develop and utilize its individual Lot for residential purposes,and shall not encroach within any building area(s) of Lots, in locations shown on the Plat, or as may hereafter be approved by applicable governmental authorities (provided that any easements granted prior to any revisions to an approved building area shall not be affected). Section 8. Maintenance of Storm Drainage Easements. A. Any future subdivision plat for the Property shall provide for various easements on, through, over,under and across such portions of the Lots as depicted thereon, all of which are incorporated herein by this reference (the "Easements"), for the installation, construction, reconstruction and inspection of the storm drainage system. Declarant, and its agents, employees, independent contractors and designees, shall have all rights and privileges as may be reasonably necessary to the exercise of the foregoing easements, including, without limitation, a reasonable right of ingress and egress to and from the Easements over the Lots. B. The Association shall maintain all drainage easements which have not been dedicated to public use or otherwise made the responsibility of the local government, an agency thereof or another third party. Notwithstanding the foregoing, while the Association shall have the right to enter on to a Lot for purpose of maintaining the Easements, each Owner shall be 23 responsible for maintaining such portion of any Easement which may be contained within his or her Lot. C. No Owner shall take any action with respect to the Easements that would interfere or be inconsistent with the use of the Easements by the Association for the purposes named herein. No walls, fences, barriers, trees, plantings, landscaping or other obstructions shall be erected or allowed to remain within the Easements so as to interfere with the free flow of storm water runoff through the Easements, or any portion thereof. D. If any portion of the Easements is damaged or destroyed by the act or negligent omission of one Owner,or any of such Owner's tenants, lessees, agents,guests,invitees, licensees or family members, so as to interfere with the free flow of storm water runoff through the Easements, then said Owner shall be responsible for damage caused thereby and shall reimburse the Association, promptly on demand, for all costs and expenses incurred by the Association in rebuilding and/or repairing the Easements to as good condition as existed prior to such damage or destruction. E. Except to the extent expressly provided otherwise herein, all costs associated with the maintenance,repair, replacement and/or inspection of the Easements shall be the responsibility of the members of the Association as a Common Facility in accordance with the Declaration. Any monies required to be reimbursed and/or paid to the Association by any Member or Owner involving the Easements pursuant to this Declaration which are not paid by such Member or Owner within ten (10) days of the due date established by the Association shall be collectible by the Association in the same manner, with the same rights and remedies, as assessments levied by the Association under the Declaration. F. All provisions of the Easements,including the benefits and burdens thereof, shall touch, concern and run with the land,shall inure to the benefit of the Association,the Owners and the Declarant, and their respective successors and assigns, and shall be binding upon the Owners and their respective successors,transferees, assigns, heirs and personal representatives. G. The obligations and liabilities of the Owners hereunder shall apply only with respect to the period during which each Owner owns an interest in a Lot or Parcel. When an Owner ceases to own an interest in a Lot or Parcel,the obligations and liabilities thereafter accruing (but not any accrued and unperformed obligations and liabilities) shall be the obligations and liabilities of the successor, transferee or assign in ownership or interest of such Owner. The transferring Owner, however, shall remain liable for all accrued and unperformed obligations and liabilities existing at the time of transfer. H. No restriction, condition, obligation or provision of this Declaration, with regard to the Easements or otherwise,shall be deemed to have been abrogated or waived by reason of any failure or failures to enforce the same. Section 9. Private Driveways. All driveways over and across any Lot within the Property are private, and the construction, maintenance and repair of any such driveway and its facilities is the responsibility of each Owner of a Lot benefiting therefrom. The construction, maintenance 24 `441sr 'yr.* and repair of all such driveways shall not be the responsibility of the Association, the County or the Commonwealth of Virginia. Section 10. Public Entity Easements. In the event any conflict arises between the terms and provisions of this Declaration and any easement previously or subsequently granted to a Public Entity, any such easement to a Public Entity shall prevail over the terms and provisions of this Declaration. ARTICLE XI PARKING The Board may promulgate such rules and regulations as it deems appropriate to regulate parking within the Property, which rules and regulations may include, without limitation, assignment of parking spaces for Owners and/or visitors and the towing of any vehicles parked in violation of such assignment, in fire lanes and in designated "No Parking" spaces, with no notice of towing required and at the vehicle owner's sole expense. ARTICLE XII RIGHTS OF MORTGAGEES All Mortgagees shall have the following rights: Section 1. Notice. A Mortgagee shall be given written notice from the Association of the following: A. any condemnation or casualty loss that affects either a material portion of the Common Area or the Lot that is the security for the indebtedness due the Mortgagee; B. any default in the performance of any obligation under this Declaration or related Association documents by the Owner of a Lot that is the security for the indebtedness due the Mortgagee which is not cured within sixty (60) days after the Owner's receipt of notice of the default; C. any lapse, cancellation or material modification of any insurance policy or fidelity bond maintained by the Association; and D. any proposed action that would require the consent of a specified percentage of Mortgagees. Section 2. Unpaid Assessments. Any Mortgagee, who obtains title to a Lot pursuant to the remedies provided in its mortgage or deed of trust or foreclosure of the mortgage or deed of trust or deed in lieu of foreclosure, will not be liable for such Lot's unpaid dues or charges which accrue prior to the acquisition of title to the Lot by the Mortgagee. 25 Section 3. Books and Records. A Mortgagee shall have the right to examine and copy at its expense the books and records of the Association during normal business hours and upon reasonable notice to the Association. Section 4. Notice by Request. As set forth in this Article,Mortgagees shall have the right, upon request, to receive notice of(a) the decision of the Owners to abandon, modify or terminate the current zoning category of the Property as a Planned Residential Development; and (b) any material amendment to the Declaration, the By-Laws or the Articles of Incorporation. Section 5. Mortgagee Approval. The approval of any Mortgagee shall be deemed accepted by the Association in the following forms: (a)written approval; (b) any written waiver of approval rights; (c) a formal letter stating no objection; or, (d) presumptive approval if a Mortgagee does not respond within thirty (30) days to any notice sent through the United States Postal Service by Certified Mail, Return Receipt Requested, provided that the Association receives a U.S. Postal Service Return Receipt signed by an authorized agent of the Mortgagee confirming receipt of any such notice by the Mortgagee. Refusal of any notice by a Mortgagee shall in no way affect the validity of any such notice. Approval of Mortgagees shall be calculated based on one vote for each first deed of trust held by a Mortgagee. Section 6. Rights. Provided that improvements have been constructed in the Common Area and provided that a Mortgagee gives written notice to the Association that it has relied on the value of the improvements in making a loan on a portion or all of the Property, then such Mortgagee shall be further entitled to the following rights: A. Subject to the right of the Declarant to annex additional areas as provided in the Article hereof titled "GENERAL PROVISIONS", unless at least sixty-seven percent (67%) of the total allocated votes in the Association and Mortgagees representing at least fifty-one percent (51%) of those Lots that are subject to mortgages or deeds of trust have given their prior written approval, the Association shall not: I. fail to maintain fire and extended coverage insurance on insurable parts of the Common Area or other Association property on a current replacement cost basis in an amount not less than one hundred percent (100%) of the insurable value, based on current replacement costs, not including land value; 2. use hazard insurance proceeds for losses to the Common Area or other Association property for other than the repair, replacement or reconstruction of such property; 3. add or amend any material provision of this Declaration or related Association documents concerning the following: a. voting rights of any Member; 26 Nose b. increases in assessments that raise the previously assessed amount by more than twenty-five percent (25%), assessment liens, or the priority of assessment liens; c. reductions in reserves for maintenance, repair and replacement of those parts of the Common Area that may be replaced or require maintenance on a periodic basis by more than twenty-five percent (25%); d. insurance or fidelity bonds; e. responsibility for maintenance and repair of the Property; f. annexation or withdrawal of property to or from the Property (other than annexation or withdrawal of those properties referred to in the Article hereof titled, "PROPERTY SUBJECT TO THIS DECLARATION, ANNEXATION AND WITHDRAWAL'); g. imposition of any restriction on the leasing of Dwelling Units; h. imposition of any right of first refusal or similar restriction on the right of an Owner to sell, transfer or otherwise convey its property; restoration or repair of the Property after damage or partial condemnation; j. reallocation of interests in the Common Area or rights to its use, except as provided in the Articles hereof titled "VOTING RIGHTS" and "PROPERTY RIGHTS" herein; k. termination of the legal status of the Association after substantial destruction or condemnation of the subdivision occurs; and 1. any provisions that arc for the express benefit of Mortgagees. 4. by act or omission seek to abandon, partition, subdivide, encumber, sell or transfer the Common Area. The resubdivision and/or adjustment of boundary lines of the Common Area and the granting of easements by the Association shall not be deemed a transfer or subdivision within the meaning of this clause. 5. by act or omission waive or abandon any scheme of regulations or their enforcement pertaining to the architectural design or the exterior appearance of Dwelling Units and their appurtenances, the exterior maintenance of Dwelling Units and their appurtenances, the maintenance of the Common Area, common fences and driveways and the upkeep of lawns and plantings in the Property. 27 An addition or amendment to this Declaration or related Association documents shall not be considered material if it is for the purpose of clarification or correcting errors. A Mortgagee who receives a written request to approve additions or amendments who does not deliver or post to the requesting party a negative response within thirty (30) days of receipt of such request shall be deemed to have approved such request. B. A Mortgagee may,jointly or singly, pay taxes or other charges which are in default and which may or have become a charge against the Common Area and may pay overdue premiums on hazard insurance policies or secure new hazard insurance coverage upon the lapse of a policy for such Common Area. The Mortgagee making such payments shall be owed immediate reimbursement therefor from the Association. C. In the event that there is a condemnation or destruction of the Common Area or other Association property, to the extent practicable, condemnation or insurance proceeds shall be used to repair or replace the condemned or destroyed property. D. Should there be excess insurance or condemnation proceeds after the renovation, repair or reconstruction called for herein, such excess proceeds may be distributed equally to the Owners,apportioned equally by Lot; subject,however,to the priority of a Mortgagee with regard to the proceeds applicable to the Lot securing said Mortgagee and in accordance with Virginia law. E. The Association must provide an audited financial statement for the preceding fiscal year to a Mortgagee upon its written request at the Mortgagee's expense. F. Eligible Mortgagees representing at least fifty-one percent (51%) of the votes of the mortgaged Lots must consent to the termination of the legal status of the Association for reasons other than substantial destruction or condemnation of the Property. G. The Association shall cause the immediate repair, reconstruction or renovation of any damage to the Common Area, unless a decision not to repair, reconstruct or renovate is approved by a majority of the Mortgagees. ARTICLE XIII ENFORCEMENT Section 1. Right to Enforce. As long as the Declarant is continuing in the development of the Property, the Declarant shall have the sole right to enforce the terms and conditions of this Declaration, provided that such right may be delegated from time to time, in whole or in part, to the Association. Following the sale of the last Lot by the Declarant,the Association or any Owner shall have the right to enforce, by a proceeding at law or in equity, all restrictions, conditions, covenants, reservations, easements, liens and charges now or hereafter imposed by the provisions of this Declaration or other Association documents, unless such right is specifically limited. Furthermore, the Declarant and/or the Association shall have the right to enforce any applicable laws of any governmental authority upon any Owner or Lot failing to comply with said governing documents or laws. Failure by the Declarant, the Association, or by any Owner to enforce any 28 Starr right, provision, covenant or condition which may be granted by this Declaration shall not constitute a waiver of the right of the Declarant,the Association or an Owner to enforce such right, provision, covenant or condition in the future. All rights, remedies and privileges granted to the Declarant, the Association, or any Owner pursuant to any term, provision, covenant or condition of the Declaration shall be deemed to be cumulative and the exercise of any one or more thereof shall not be deemed to constitute an election of remedies nor shall it preclude the party exercising the same from exercising such privileges as may be granted to such party by this Declaration or at law or in equity. Notwithstanding the foregoing, the right of an Owner to enforce this Declaration may be terminated or limited upon a written resolution adopted by a vote of at least two-thirds (2/3rds) of the Board, upon a determination that enforcement related to a specific violation or violations would not be in the best interest of the Association. Section 2. Relief. The Declarant, its successors and assigns, and the Association, shall be entitled to recover any costs, including without limitation attorneys' fees, incurred in connection with the enforcement of the provisions of this Declaration or any other governing document of the Association or any applicable laws of any governmental authority upon any Owner or Lot failing to comply with said governing documents or laws. Section 3. Payment of Enforcement Expenses. The cost of any expenses arising out of any enforcement action as set forth in the Article hereof titled, "ENFORCEMENT", including but not limited to legal services and court fees, may be paid out of the Annual General Assessment funds collected by the Association. Such costs shall be subject to recovery from any Owner(s) determined or found to be in violation, in accordance with the provisions of this Declaration, and shall constitute a lien on such Owner's Lot, as herein provided. ARTICLE XIV GENERAL PROVISIONS Section 1. Severability; Conflict. Invalidation of any one of the provisions of this Declaration by judgment or court order shall in no way affect any other provision, which shall remain in full force and effect. In the case of any conflict between the Articles of Incorporation and this Declaration,the Articles of Incorporation shall control;in the case of any conflict between this Declaration and the By-Laws, this Declaration shall control. Notwithstanding any provision in this Declaration or the By-Laws to the contrary, Declarant shall have the right to appoint a majority of the members of the Board during the Declarant Control Period. Section 2. Interpretation. The headings used in this Declaration are for reference and convenience only, and shall not enter into the interpretation of this Declaration and the covenants, rights and/or obligations expressed herein. All pronouns used herein, whether used in the masculine, feminine or neuter gender, shall include all other genders. The singular number shall include the plural, and vice versa, unless the context requires otherwise. Section 3. Duration. The covenants and restrictions of this Declaration shall run with and bind the land for a term of twenty(20)years from the date this Declaration is recorded, after which time the covenants and restrictions of this Declaration shall be automatically extended for successive periods of twenty(20) years each. 29 • Section 4. Amendment. During the Declarant Control Period, Declarant may unilaterally amend this Declaration for any reason by recordation of an amendment to the Declaration among the Land Records and this Declaration may only be amended during such time with the consent of the Declarant. Furthermore, during such time, the Declarant is authorized to execute any such amendment on behalf of the Association. After the Declarant Control Period, the covenants and restrictions of this Declaration may be amended in whole or in part with the assent of more than fifty percent(50%)of the votes of the Members. Any amendment must be properly executed and acknowledged by the Declarant or the Association, as applicable, (in the manner required by law for the execution and acknowledgment of deeds) and recorded among the Land Records. Section 5. Waivers by Declarant. The Declarant, as the present most interested party in maintaining the high quality of development which by these covenants is sought to be assured for the Property, hereby expressly reserves unto itself(so long as these restrictions are in effect) the unqualified right to waive or alter from time to time such of the herein contained restrictions as it may deem best, as to any one or more of the Lots, which waiver or alteration shall be evidenced by the mutual written consent of the Declarant and the then-Owner of the Lot as to which some or all of said restrictions are to be waived or altered; such written consent to be duly acknowledged and recorded among the Land Records. Section 6. Notices. Any and all notices required to be given hereunder to any interested party, including Members and Owners, shall be sent, in writing,either by First Class United States Mail,postage pre-paid,or,at the discretion of the Association,by e-mail or facsimile transmission, to the address on file with the Association for said interested party. It is the responsibility of all interested parties to provide the Association with a valid and current address for notice purposes. Absent receipt of a written notification identifying an address for notice purposes, the street address of the individual Lot shall serve as the address for notice purposes. Notices shall set forth the purpose for their issuance, such as the reason for which a meeting has been called or the necessity of any Assessment levied, and shall contain the date, time and location of the meeting or occurrence, including the due date of any Assessment levied and any relevant method of appeal. Notwithstanding the foregoing, Applications and appeals shall be submitted as required in the Article hereof titled "ARCHITECTURAL REVIEW BOARD". Section 7. Management Contracts. For such time as the Declarant has Class B membership status,the Declarant shall have the right to enter into professional management contracts on behalf of the Association for the management of the Property; provided, however, that in any such contract entered into by the Declarant, the Association shall have the right to terminate such contracts, with or without cause,upon thirty(30)days'written notice to the other party and without payment of a termination fee. Section 8. Waiver of Negative Reciprocal Covenants. Each Owner, together with any other person or party that might hereafter claim any interest in the Property or the Additional Property,irrevocably waives and releases any and all rights to claim a negative reciprocal easement of any sort over or affecting any property owned by Declarant, including without limitation, the right to claim that such property is subject to a common scheme of development. While Declarant currently intends to develop the Property pursuant to the terms and conditions of the existing 30 Niue WITNESS the following signature and seal: SM CHARLOTTESVILLE, LLC, a Virginia mited liability company By: Name: A c. Title: COMMONWEALTH OF VIRGINIA, \y,04N-Pe OF eViCtfldritS1/4111U, to wit: I, the undersigned Notary Public, in and for the jurisdiction aforesaid, do hereby certify that Rieldielk1 C. -MG 7ACt. ,as IX-e Sc1-e fl4 of SM Charlottesville, LLC, a Virginia limited liability company, on its behalf. 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