HomeMy WebLinkAboutSUB201600185 Easements Final Plat 2011-12-21 Page 1 of 52 4.¢ (10J Et. eS/YI ��0 Q
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Land Record Instruments 11 i@11111t !I I�V� 111 RNIB
Cover Sheet-Form A Doo ID: 008597320052 Type: DEE
Recorded: 12/21/2011 at 11:40:07 AM
Fee Amt: $391.00 Pape i of 52
Albemarle County VA
[ILS VLR Cover Sheet Agent 1.0.66] Debra M. Shipp Clerk
Fllek 2011-00014888
i C Date of Instrument: [12/21/2011 ]
.K41111,0477-528
IA0 Instrument Type: (DEC-PL 1
X R
P
E Number of Parcels [ 1]
X Number of Pages [ 50]
M City L County[] [Albemarle County 1 (Box for Deed Stamp Only)
p' First and Second Grantors
T Last Name ( First Name J Middle Name or Initial I.__ Suffix
il [Woodbriar Associates 1[ 11 1[ 1
pi C
[ ][ ][ 1[ 1
First and Second Grantees
Last Name T First Name tMiddle Name or Initial Suffix _
Lii[ [Briarwood II Owners As ][ 1 t ][ ]
❑ El [ 11 1[ 11 1
Grantee Address (Name) [Briarwood II Owners Association 1
(Address 1) [PO Box 5548 1
(Address 2) [ 1
(City,State,Zip) [Charlottesville ] [VA] [22905 ]
Consideration[0.00 1 Existing Debt[0.00 ] Assumption Balance[0,00 1
Prior Instr.Recorded at City Li County Li [ ] Percent.in this Juris. 1 100]
Book [ ] Page [ ] Instr.No [ ]
Parcel Identification No(PIN) [ ]
Tax Map Num. (if different than PIN) [Portion of Tax Map 032G0 00 00 00100 1
Short Property Description [Phases 1A-2 18-2&8 Briarwood ]
[ 1
Current Property Address(Address 1) [ ]
(Address 2) [ ]
(City,State,zip) [ l[ 1[ 1
Instrument Prepared by [McClure Callaghan Atkins&Buc ]
Recording Paid for by [McClure Callaghan Atkins&Bucci ]
Return Recording to (Name) [Kenneth P Bucci 1
(Address 1) [415 Fourth Street NE ]
(Address 2) [ ]
(City,State,Zip) [Charlottesville ][VA 1[22902 ]
Customer Case ID [ ] [ 1[ ]
c ,,,t, i'!',i7T' P;)'' .i.' 1
Cover Sheet Page#1 of 1 ' 1;,r�}, MI
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Book: 4111 Page: 477 FileNumber: 2011-00014088 Seq: 1
Page 2 of 52
0.1.408.8
Prepared by Tax Map No.Portion of 032G0-00-00-00100
and Return to:McClure,Caflaghan,Atkins&Bucci
415 4'''Street,NE
P.O.Box 1333
Charlottesville,VA 22902
DECLARATION OF PROTECTIVE COVENANTS,
CONDITIONS, RESTRICTIONS AND RESERVED EASEMENTS
This Declaration of Protective Covenants, Conditions, Restrictions and Reserved
Easements is made this 20th day of December, 2011, by WOODBRIAR ASSOCIATES
LIMITED PARTNERSHIP, a New York limited partnership, referred to as "Declarant" in
accordance with the Virginia Property Owners'Association Act, Chapter 26 of Title 55 of
the Code of Virginia (1950) as amended (the "POA Act"); and BRIARWOOD II
OWNERS ASSOCIATION, a Virginia non-stock corporation, referred to as
"Association".
**WITNESSETH**
WHEREAS, Declarant is the owner of certain land situate in Albemarle County,
Virginia more particularly described in Exhibit"A"attached hereto as a part hereof, and
WHEREAS, the Declarant and the Association wish 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 and the health, safety and
welfare of the residents of the Property.
NOW, THEREFORE, the Declarant and the Association declare that the Property
is hereby subjected to and shall be held, sold, occupied and conveyed subject to this
Declaration of Protective Covenants, Conditions, Restrictions and Reserved
Easements.
The Declarant and the Association further declare that this Declaration and all
amendments and supplements thereto shall run with the land and shall be binding upon
the Declarant, the Association, each Owner, their heirs, successors and assigns and all
parties claiming under them or under this Declaration and shall inure to the benefit of
and be enforceable by the Declarant, the Association, each Owner and all claiming
under each Owner.
Briarwood H Owners Association, referred to herein, has been established as a
community association for the Owners of the Property.
Page 1
RECEIVED
JUN fl 7 t11..
COMMUNITY
DEVELOPMENT
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ARTICLE 1 -Definitions
The words used hereinabove or hereafter in this Declaration which begin with
capital letters (other than words which would be normally capitalized) shall have the
meanings assigned to them in Article 1 of this Declaration.
1.01 "Annual Assessments" shall mean and refer to the Annual General
Assessment, Services Assessment and any Special Assessment levied by the
Association in each of its fiscal years pursuant to Article 4 of this Declaration.
1.02 "Annual General Assessments" shall mean and refer to the annual
charge shared by all Class"A"and "Class B"members established pursuant to Article 4
of this Declaration.
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 "Assessable Property" shall mean and refer to all of the Property
except such part or parts thereof as may from time to time constitute Exempt Property.
1.05 "Association" shall mean and refer to Briarwood 11 Owners
Association, a Virginia non-stock corporation, its successors and assigns.
1.06 "Board of Directors" or "Board' shall mean and refer to the Board of
Directors of the Association and any board, group or entity of the successor or assign to
the Association serving in a comparable capacity to the Board of Directors of the
Association.
1.07 "Class A Members" shall mean and refer to each Owner of a single-
family lot that is not a townhome lot.
1.08 "Class B Members" shall mean and refer to each Owner of a
townhome lot.
1.09 "Class C Member"shall mean and refer to the Declarant.
1.10 "Commercial Tracts" shall mean and refer to all the real property
owned by the Declarant and/or others designated as a Commercial tract shown on any
subdivision plat. Owners should take notice that commercial property is located
adjacent to the Property along State Route 29 and may not all be identified on
subdivision plats. See notice in Article 16.
1.11 "Common Area" shall mean and refer 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, including land or
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improvements located in easements for the benefit of the Association. Such property
may(but need not) include any recreational facilities (including community center, pool,
tot lots, picnic tables, benches, etc.), signage, natural resource facilities, parks and
other open space land, lakes and streams, storm water management and drainage
facilities,street lights, sidewalks, trails, landscape buffers, pond landscaping, fencing on
Common Area and other buildings needed in connection with water supply, sewage
disposal, gas, electric, or other utility lines, equipment or installations. The Association
is responsible for management and maintenance of all Common Area.
1.12 "County means Albemarle County, Virginia.
1.13 "Covenants Committee" shall mean and refer to the Architectural
Review and Covenants Committee so named and established in accordance with Article
5 of this Declaration.
1.14 "Declaration" shall mean and refer to this Declaration of Protective
Covenants, Conditions, Restrictions and Reserved Easements, as it may from time to
time be amended or supplemented in the manner provided herein.
1.15 "Declarant' shall mean and refer to Woodbriar Associates Limited
Partnership, a New York limited partnership, its successors and assigns. No successor
or assignee of the Declarant shall have any rights or obligations of the Declarant
hereunder unless such rights and obligations are specifically set forth in an instrument
of succession or assignment designating a party as the Declarant hereunder or which
pass by operation of law.
1.16 "Development Period'shall mean and refer to the period commencing
on the date of this Declaration first set forth above and terminating on the later of (a)
December 31, 2030; or (b) the date all bonds or sureties posted or filed for the
development of the Property are returned and/or released by the appropriate agency; or
(c) any earlier date specified by the Declarant in a written instrument signed by
Declarant,specifically terminating the Development Period.
1.17 "Dwelling Unit" shall mean 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 shall, unless otherwise specified, include within its meaning (in
way of illustration, but not limitation) townhouses, multi-family units (either
condominiums or rental), and single family detached homes as may be used and
defined as herein provided or as provided in subsequent Declarations covering all or
part of the Property. The term Dwelling Unit shall also include any"Live/Work"dwelling
unit.
1.18 "Exempt Property"shall mean and refer to all land and structures and
Common Area owned by the Association for so long as the Association shall be the
owner thereof,
1.19 "Federal Housing Administration" ("FHA") shall mean and refer to
that governmental agency of the United States of America so entitled and any agency or
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regulatory authority of the United States of America, which succeeds the Federal
Housing Administration.
1.20 "Land Development Activity' shall mean and refer to any building,
construction, reconstruction or repair of a Dwelling Unit, roadways, curbing, sidewalks,
utility services or any other Structure on a Lot or any other portion of the Property by the
Declarant, any Participating Builder, the declarant of any condominium, and/or by other
persons regularly engaged in the building or construction business, if granted approval
in writing by the Declarant and the appropriate governmental department.
1.21 "Lot"shall mean and refer 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 Albemarle County
zoning ordinances, and shall include each condominium unit constructed upon any part
of the Property.
1.22 "Members" shall mean the Class A Members, Class B Members and
the Class C Member,
1.23 "Mortgagee" shall mean 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, shall include deeds of trust. "First Mortgagee" as
used herein, shall mean a holder of a mortgage with priority over other mortgages. As
used in this Declaration, the term "Mortgagee"shall mean any mortgagee and shall not
be limited to institutional mortgagees. As used in this Declaration, the term "institutional
mortgagee" or "institutional holder" shall include banks, trust companies, insurance
companies, mortgage insurance companies, savings and loan associations, trusts,
mutual savings banks, credit unions, pension funds, mortgage companies, Federal
National Mortgage Association ("FNMA"), Federal Home Loan Mortgage Corporation
("FHLMC"), all corporations and any agency or department of the United States
government or of any state or municipal government. As used in this Declaration, the
term "holder" or "mortgagee" shall include the parties secured by any deed of trust or
any beneficiary thereof.
1.24 "Owner" shall mean and refer to the record owner, whether one or
more persons or entities, of any Lots which are part of the Property but excluding in all
cases any party holding an interest merely as security for the performance of an
obligation.
1.25 "Participating Builder" shall mean and refer to a person or entity
designated in writing by the Declarant as a Participating Builder.
1,26 "Person" shall mean and refer 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.
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1.27 ''Private Streets" shall mean and refer to all improvements located
within those areas designated on the subdivision plats as a private access easement
and not otherwise dedicated to public use.
1.28 "Private Street Maintenance Assessments" shall mean and refer to
the annual charge shared by all Class "B" members established pursuant to Article 4 of
this Declaration.
1.29 "Proffers" shall mean any proffers referenced on any plat or in any
other portion of the development plan.
1.30 "Property'shall mean and refer 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.
1.31 "Services Assessment"shall mean and refer 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.
1.32 "Special Assessment' shall mean and refer to any special charge
established pursuant to Article 4 of this Declaration.
1.33 "Structure" shall mean and refer to 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.
1.34 "Supplemental Declaration"shall mean 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.
1.35 • "Yard Maintenance Assessments" shall mean and refer to the annual
charge shared by all "Class B" members established pursuant to Article 4 of this
Declaration.
ARTICLE 2-Property Rights of Owners
2.01 Rights of Enjoyment of Common Area and Private Streets. Each
Owner shall have a right and nonexclusive easement of enjoyment in and to the
Common Area and Private Streets owned in fee simple or by easement by the
Association which shall be appurtenant to and shall pass with the title to his Lot. Such
easements and rights shall 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
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the use of the Common Area and Private Streets which shall enhance the
preservation of such facilities and the safety and convenience of the users thereof.
Such rules and regulations may include limitations on the number of guests of Owners
who may use the Common Area and Private Streets at any one time.
(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 the voting
rights and the right of any Owner to use the Common Area (with the exception of any
streets or access ways) for so long as any Annual Assessment for such Lot remains
unpaid and overdue.
(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 Virginia Property Owners Association Act(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 66
2/3% vote of the Class A, Class B and Class C 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 or Private Streets to any public agency, authority, or other
entity including, without limitation, Albemarle County, or to any nonprofit organization
upon such terms and conditions as shall 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 and Private Streets by the
public in general and terms and conditions pertaining to the maintenance and repair of
such Common Area and Private Streets and the assessments of Owners for the costs
of such maintenance and repair.
(h)The right of the Board to regulate parking on the Property,
including community facilities, through the granting of easements, licenses, or
promulgation of rules and regulations. In areas where parking is provided on Private
Streets owned or controlled by the Association, the Board has the right, but not the
obligation, to assign and reserve parking spaces for the exclusive use of individual
Owners. The Board may exercise this right in a selective manner according to
guidelines and criteria created for such purpose and duly adopted by the Board.
(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
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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, nonstock corporation under the laws of the Commonwealth of Virginia: (i)
to provide for the acquisition, construction, management, maintenance and care of the
Common Area, Private Streets, 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 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 Common Areas 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 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
shall not be amended or otherwise changed or interpreted so as to be inconsistent with
this Declaration.
3.02 Membership in the Association. The Association shall have the
following classes of membership:
Class A. Class A Members shall be all Owners of single-family lots which
are not townhome lots. A Person shall automatically become a Class A Member upon
his becoming an Owner of such a Lot, and shall remain a Class A Member for so long
as he is an Owner.
Class B. Class B Members shall be all Owners of single-family lots which
are townhome lots. A Person shall automatically become a Class B Member upon his
becoming an Owner of such a Lot, and shall remain a Class B Member for so long as
he is an Owner,
Class C. The Class C Member shall be the Declarant.
3.03 Voting Rights of Members.
Every Owner of a Lot which is subject to assessment 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.
(a) Each Class A and Class B Member shall be entitled to one (1)
vote on each matter submitted to the Members for each Lot owned by such Class A or
Class B Member. Any Class A or Class B Member who is in violation of this
Declaration, as determined by the Board of Directors in accordance with the
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provisions hereof and regulations established hereunder, shall not be entitled to vote
during any period in which such violation continues. If a Lot shall be owned by more
than one Owner, such Owners shall be deemed to constitute a single Class A or
Class B Member as to such Lot and shall collectively be entitled to a single vote for
such Lot as to each matter properly submitted to the Members. If multiple owners
cannot decide on a vote, the vote shall be forfeited.
(b) The Class C Member shall be entitled to seven hundred (700)
votes. The Class C membership shall terminate upon the happening of any of the
following events,whichever occurs later:
(i) fifteen (15)years from the date of recordation of this
Declaration; or
(ii) the release of all improvement and development bonds or
sureties posted or filed with the State, County, or other governmental agencies in
connection with the development of the Property.
In addition, Class C membership can be terminated by the
recordation among the land records of Albemarle County, Virginia of a written
instrument signed by the Declarant, or its successors or assigns, specifically terminating
such rights.
Notwithstanding the foregoing, in the event of annexation of any
additional properties, the number of votes for Class C membership shall be increased
by the three (3)votes per Lot annexed.
3.04 Board of Directors.
The business and affairs of the Association shall be managed by a Board
of Directors elected by the Members without regard to class of membership. There
shall initially be a three (3) member Board of Directors. As long as the Declarant has
the status of a Class C Member, it shall have the right to appoint all three (3) directors.
Once there is not a Class C Member, the directors shall be elected by the Members in
accordance with Article 7 of the Bylaws of the Association. The number of directors
shall be determined in accordance with the provisions of the Bylaws of the Association.
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 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 shall so determine 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.
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3.06 Limitation of Liability. The Association shall 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 Private Streets,
Common Areas or its facilities, or from any wire, pipe, drain, conduit or the like. The
Association shall not be liable to any Members for loss or damage, by theft or otherwise,
of articles which may be stored upon the Private Streets, Common Areas or its facilities.
No diminution or abatement of assessments, as herein elsewhere provided for, shall be
claimed or allowed for inconvenience or discomfort arising from the making of repairs or
improvements to the Private Streets, Common Areas 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. The
Declarant hereby covenants, and each Owner of any Lot by acceptance of a deed
therefore, whether or not it shall be so expressed in such deed, is deemed to covenant
and agree to pay to the Association such Annual General Assessments, Services
Assessments, Special Assessments, Private Streets Maintenance Assessments, and
Yard Maintenance Assessments and any other assessment or monetary obligation as
are established and are to be paid and collected as hereinafter provided. The Annual
General Assessments, Services Assessments, Special Assessments, Private Streets
Maintenance Assessments, and Yard Maintenance Assessments, and any other
assessment or monetary obligation, together with interest thereon, late fees and costs
of collection thereof as hereinafter provided, shall be a charge on the land and shall be
a continuing lien upon the Lot against which each such assessment is made. Each such
assessment and/or obligation, together with interest thereon, late charges, and cost of
collection thereof, shall also be the personal obligation of the person who was the
Owner of such Lot at the time when the assessment fell due. The personal obligation for
delinquent assessments shall not pass to successors in title unless expressly assumed
by them. No Owner may waive or otherwise escape liability for any assessment
provided for herein by non-use of the Private Streets, Common Area or abandonment of
his Lot, or any Dwelling Unit thereon.
4.02 Purpose of Assessments. The Annual Assessments levied by the
Association shall be used exclusively to carry 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 Common Areas and/or of common facilities of such other properties; (ii) obtaining,
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
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maintenance of all Common Areas, 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 Albemarle County zoning ordinance, maintenance of ail facilities,
equipment, trails, sidewalks and other facilities not maintained by the County or the
Virginia Department of Transportation, maintenance of any erosion control areas,
stormwater retention areas, water quality facilities and/or drainage easements located
on the Property, and maintenance of lighting facilities, signage, and the street lighting
system located on the Property; (v) the payment of any amounts due under any cost
sharing agreement to which the Association is a party; and (viii) the costs for
maintaining operating and capital reserve funds.
4.03 Establishment of Annual General Assessment.
(a)The Association shall levy in each fiscal year an Annual
General Assessment against each Lot which is owned or occupied by a person who is
not the Declarant or a Participating Builder. The amounts of such Annual General
Assessments shall be established by the Board of Directors, at least thirty(30) days in
advance of each Annual Assessment period and the proposed budget shall be
distributed to all Members at least thirty(30) days prior to the beginning of each fiscal
year and shall be available to all Members for inspection during regular business
hours at the Association's office. The first Annual General Assessments on each Lot
imposed pursuant to this Section shall be adjusted according to the number of months
remaining in the Annual Assessment period from the date of conveyance of a Lot to a
Class A or a Class B Member.
(b)The Declarant shall have no obligation to pay any Annual
General Assessment, except the Declarant shall have the obligation to pay Annual
General Assessments in accordance with the provisions of Section 4.03(a) above on
any Lot owned by Declarant upon which there is located a completed Dwelling Unit
which is occupied as a residence.
(c) The Declarant shall levy against any Participating Builder at
the time of conveyance by Declarant, a one-time assessment equal to One Hundred
Fifty and No/100 Dollars ($150.00) for each Lot owned or to be constructed by, the
Participating Builder. Notwithstanding the foregoing, Participating Builders shall have
the obligation to pay Annual General Assessments on any Lot which is 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 increase the
Annual General Assessment as required, however, in no event shall the amounts due
as Annual General Assessments for one year, be increased by more than ten percent
(10%) of the amounts due as Annual General Assessments for the previous year,
without the approval of all of the Owners.
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
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and in its sole discretion, 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 in the event that the budget as
originally adopted, shall appear to be insufficient to pay the cost of the operation or
management of the Property, or in the event of emergencies. Pursuant to Section 55-
514 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 shall be imposed against 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 shall be determined by the
Board of Directors according to the estimated cost of providing services or rights of use
to such sections, and may include both the cost of services or amenities provided
exclusively to such section, and also services and amenities that are shared throughout
the entire community. The amount of a Services Assessment shall be the same for
each Lot in any section but need not be uniform with the Services Assessment imposed
upon Lots in other sections. The terms of any Services Assessment may be set forth in
any Supplemental Declaration which subjects any lots or parcels.
4.07 Private Streets Maintenance Assessments. A Private Streets
Maintenance Assessment shall be levied by the Board of Directors against Class B
Members. The amount of the Private Streets Maintenance Assessment shall be
determined by the Board of Directors according to the estimated cost of maintaining and
replacing all of the improvements located within the Private Access Easements shown
on subdivision plats, including but not limited to pavement, lane marking, sidewalks,
curb/gutter, landscaping and other improvements, including the removal of snow and
ice.
4.08 Yard Maintenance Assessments. A Yard Maintenance Assessment
shall be levied by the Board of Directors against Class B Members. The amount of the
Yard Maintenance Assessment shall be determined by the Board of Directors according
to the estimated cost of maintaining the front yard landscaping of the townhome lots.
4.09 Charges and Collection.
(a)The Board of Directors may increase the Annual Assessments
as required.
(b)To the extent that any portion of the Property is developed as
a multi-family condominium, each of the condominium unit owners of such
condominium units may pay their Annual Assessments to the unit owners association
established for such condominium, which condominium unit owners association shall
make to the Association payments of assessments, which in the aggregate equal the
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assessments due from all Dwelling Units in the condominium; provided, however, that
the Association may, in its discretion, charge and collect assessments directly from
the individual unit owners of such condominium. By way of disclosure, it is to be noted
that any such condominium association also imposes additional assessments,fees or
charges in accordance with the provisions of the condominium instruments
establishing such condominium.
4.10 Date of Commencement of Assessments. The Annual Assessments
provided for in this Article 4 shall commence for each Lot on the date of conveyance of
the Lot to a Member. The first Annual General Assessment shall be adjusted according
to the number of months remaining in the assessment period.
4.11 Repair and Replacement Reserve. As a part of any Annual General
Assessment, the Board of Directors shall obtain from Owners contributions to capital on
a regular basis, which contributions will be used to establish a replacement and repair
reserve. Such contributions shall be paid monthly or at such time as regular
assessments are due and be in an amount to be designated from time to time by the
Board of Directors.
4.12 Initial Working Fund. The Board of Directors shall collect a working
capital contribution against the initial Owner (other than the Declarant or a Participating
Builder) at the time of closing on the Lot. Such contribution shall initially be $50.00 and
shall be utilized for commencing business of the Association and providing the
necessary working fund for it. The Board of Directors, in its discretion, shall be entitled
to waive any requirement for an Owner to pay any working capital contribution, and/or to
determine an amount that differs from amounts to be paid by Owners of Lots.
4.13 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 assessment is to be paid, shall be given to the Owners of each Lot subject thereto.
Each installment of an Annual Assessment shall be due on the first day of each
assessment period as defined by the Board of Directors,
4.14 Effect on Nonpayment of Assessments; Remedies of the Association.
Any Annual Assessment not paid within fifteen (15) days after the due date shall be
delinquent and the Association may exercise any or all of the following remedies: (a)
upon notice to the Owner declare the entire balance of any assessment due and
payable in full; (b) charge interest and a late fee of$50.00 or such other amount as is
determined by the Board from time to time, for assessments which are not received by
the fifteen (15th) day of the assessment period; (c) bring an action at law or in equity
against the Owners to collect the same; and (d)foreclose the lien against the Lot. Such
lien may be enforced by the Association in the same 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 the Commonwealth of Virginia.
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In any proceeding against an Owner or Lot, the amount which may be
recovered by the Association shall include all costs of the proceeding, including
reasonable attorneys'fees.
4.15 Certificate of Payment. The Association shall, upon written request by
an Owner, and for a reasonable charge, furnish a certificate signed by an officer of the
Association setting forth whether the Annual General Assessments, Special
Assessments, Services Assessments, Private Streets Maintenance Assessments and
Yard Maintenance Assessment, if any, on a specified Lot have been paid. The
Association shall furnish said certificate within ten (10) days of receipt of the written
request. A properly executed certificate of the Association as to the status of
assessments on a Lot shall be binding upon the Association as of the date of its
issuance.
4.16 Subordination of the Lien to Mortgages. The lien of the Annual
Assessments provided for herein, shall be subordinate only to the lien of any first
Mortgage or first Deed of Trust.The sale or transfer of any Lot shall not affect the lien of
such 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 shall
extinguish the lien of such assessments as to payments which became due prior to
such sale or transfer. No sale or transfer shall relieve such Lot from liability 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 shall be deemed to
extinguish any Mortgage or lien, which the Association has itself placed upon any
property owned by the Association.
ARTICLE 5-Architectural Review and Covenants Committee
5.01 Composition and Appointment. An Architectural Review and
Covenants Committee (the "Covenants Committee") may be appointed by the Board of
Directors. Such Covenants Committee shall initially consist of three (3) members, but
may thereafter be increased or decreased in size by the Board of Directors,from time to
time. Members of the Covenants Committee shall serve for a term of one (1) year, or
until their successors are elected and qualified. Any vacancy in the membership of the
Covenants Committee shall be filled by the Board of Directors to serve for the remaining
portion of the term of the originally appointed member. If any vacancy shall occur, the
remaining members of the Covenants Committee may continue to act until the vacancy
has been filled. Any member may be removed with or without cause by the Board of
Directors. In the event that the Board of Directors shall fail to designate a Covenants
Committee, the Board of Directors shall serve as the Covenants Committee.
5.02 Powers and Duties.
(a) The Covenants Committee shall serve as an "Architectural
Review Board" and shall: (i) regulate the external design, appearance and location of
the Lots and Structures thereon so as to enforce the architectural provisions of this
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Declaration; (ii) enforce the requirements of the recorded subdivision plats, deeds of
subdivision; (iii) preserve and enhance values; and (iv) maintain a harmonious
relationship between and among Structures and the Property.
(b) The Covenants Committee shall 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, the Articles of Incorporation and Bylaws of the
Association.
5.03 Submission of Plans to Covenants Committee for Approval. Except for
such Structures as may be constructed by the Declarant or Structures constructed by a
Participating Builder which have first been approved by the Declarant, no Structure of
any kind whatsoever shall be commenced, erected, placed, moved onto or permitted on
any Lot, nor shall any existing Structure upon any 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 shall have been submitted to and approved
in writing by the Covenants Committee. Such plans and specifications shall be in such
form and shall contain such information as the Covenants Committee may reasonably
require, such as the following:
(a) A site plan showing the location of all proposed and existing
Structures on the Lot and all existing Structures on adjoining Lots,
(b) Exterior elevations for the proposed Structures,
(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 5.03 shall not apply to Land Development Activity
as defined in Article I. Any plans and specifications of any Participating Builder which
have been approved by the Declarant shall not be subject to any review or approval by
the Covenants Committee following the termination of the Class B membership or the
Development Period.
5.04 Initiation and Completion of Approved Changes. Construction or
alterations in accordance with plans and specifications approved by the Board of
Directors or the Covenant Committee pursuant to the provisions of this Article shall be
commenced within six (6) months of such approval and completed within twelve (12)
months of such approval. If construction is not commenced within the period aforesaid,
the approval of the plans and specifications shall be conclusively deemed to have
lapsed and compliance with the provisions of this Article shall again be required. There
shall be no deviations from plans and specifications approved by the Board of Directors
or the Covenant Committee without the prior consent in writing of the Board of Directors
or the Covenant Committee. Approval of any particular plans and specifications or
design shall not be construed as a waiver of the right of the Board of Directors or the
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Covenant Committee 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.
5.05 Powers and Duties. Any approval or disapproval of a requested action
by the Covenants Committee shall be in writing. In denying any application, the
Covenants Committee shall specify the reasons for such denial. The Covenants
Committee may approve an application subject to such conditions and qualifications as
the Board deems appropriate to enforce the architectural provisions of this Declaration.
5.06 Failure of the Covenants Committee to Act. If the Covenants
Committee shall fail to act upon any request submitted to it within forty five (45) days
after submission thereof, such request shall be submitted to the Board of Directors for
approval. If the Board of Directors shall fail to act within thirty (30) days after
submission, then such request shall be deemed to have been approved as submitted,
and no further action shall be required.
5.07 Rules, Regulations and Policy Statements. The Board of Directors
shall adopt design guidelines for the Property. The Covenants Committee 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 Covenants Committee shall adopt rules of procedure, subject to the prior
approval and adoption of the Board of Directors, which rules of procedure shall include
provisions substantially to the following effect:
(a) The Covenants Committee shall hold regular meetings as
necessary. Meetings of the Covenants Committee may be called by the Chairman of
the Covenants Committee or by a majority of the members of said Covenants
Committee.
(b) A majority of the members of the Covenants Committee
present at any meeting shall constitute a quorum.
(c) The Covenants Committee shall maintain minutes of its
meetings and a record of the votes taken thereat.
(d) All meetings of the Covenants Committee shall be open to the
Members of the Association and any vote of the Covenants Committee shall be taken
at an open meeting. Nothing contained herein, however, shall prevent the Covenants
Committee from meeting in closed session or executive session in those instances
where they are legally permitted to do so.
(e) A copy of all minutes, rules, regulations and policy statements
of the Covenants Committee shall be filed with the records of the Association and
shall be maintained by the Association as a permanent public record. The Association
shall make copies thereof available to any interested Member at a reasonable cost.
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5.08 Expenses of the Covenants Committee. The Covenants Committee
may charge reasonable fees for the processing of any requests, plans and
specifications including consultation with a professional. The Association shall pay all
ordinary and necessary expenses of the Covenants Committee; provided, however, no
member of the Covenants Committee shall be paid any salary or receive any other form
of compensation, at the expense of the Association during the Development Period
except upon authorization by the Board and upon approval by (i) 66 2/3% of the votes
cast by 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
voting in person or by proxy at such meeting.
5.09 Right of Entry. The Association and the Covenants Committee through
their authorized officers, employees and agents shall have the right to enter upon any
Lot at all reasonable times for the purpose of ascertaining whether such Lot or the
construction, erection, placement, remodeling or alteration of any Structure thereon is in
compliance with the provisions of this Article and Article 6 without the Association or the
Covenants Committee or such officer, employee or agent being deemed to have
committed a trespass or wrongful act solely by reason of such action or actions.
5.10 Land Development. Notwithstanding any other provisions of this
Declaration, any Land Development Activity shall not require the approval of or be
subject to review by the Covenants Committee, but shall be subject to any and all
applicable County approvals and regulations. This provision shall not be construed in
any manner as a limitation upon the right of the Declarant to review and approve any
plan or modification thereof of any Participating Builder.
ARTICLE 6-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 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 shall therefore not be binding upon Declarant in the performance of any of the
work required in order to complete construction on the Property.
6.01 Zoning Regulations. The Property shall 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 amended hereafter from time to time. No building
shall be erected, altered, placed or permitted to remain on any Lot other than one used
as a single family dwelling. This restriction shall not apply to any use for which a special
exception under the County zoning ordinances or other governing regulations, as the
same may be amended hereafter from time to time, is finally granted provided such use
is approved in writing by the Covenants Committee. The right, however, to further limit
or restrict the use of a particular Lot is reserved under the provisions hereof.
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6.02 No Use Contrary to Law and No Nuisances. No noxious or offensive
trade, services or activities shall be conducted on or upon any portion of the Property
nor shall anything be done thereon which may be or become a continuing annoyance or
hazard or nuisance to the Owners of the Property. No use of any Lot or part thereof or
any Structure thereon shall be made, nor shall, any materials or products be
manufactured, processed or stored thereon or therein, contrary to federal, state or local
laws or regulations, or which shall cause an undue fire hazard to adjoining Lots. This
provision shall not be construed to prohibit the conduct of such professional services in
residential areas as are permitted by applicable laws and approved by the Covenants
Committee.
6.03 Structures. The architectural character of all Structures, or alterations,
additions, or improvements thereof (other than interior alterations not affecting the
external appearance of a Structure) when visually related to each other and the
surrounding natural environment shall be, in the opinion of the Covenants Committee,
harmonious in terms of type, size, scale, form, color and material. The repair,
replacement, repainting, resurfacing or restoration of any Structure originally approved
by the Covenants Committee or the Declarant shall not be subject to the review or
approval of the Covenants Committee provided that, following any such repair,
replacement, repainting, resurfacing or restoration of any such Structure, the external
appearance and size of such Structure shall be substantially identical with the
appearance of said Structure as originally approved. Except as otherwise herein
provided, no Structure shall be painted, stuccoed or surfaced with any material unless
and until approved in writing in accordance with guidelines established by the
Covenants Committee.
6.04 Screens and Fences. Except for any fence installed by the Declarant, a
Participating Builder, or the Association, no fence or screen shall be installed on a Lot
except in accordance with the guidelines established by the Covenants Committee and
with the prior written approval of the Covenants Committee. Such screens and fences
shall not be larger than five feet (5') high and shall be constructed of pressure-treated
wood. Except for as may be installed by the Declarant, a Participating Builder, or the
Association, chain link fences are prohibited. Any fences and screens installed on a Lot
may only be installed on the backyard portion of such Lot (behind the Dwelling Units).
Fencing installed by the Declarant in the Common Area shall be maintained by the
Association.
6.05 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 approved Structure, shall be permitted and no refuse or trash shall
be kept, stored or allowed to accumulate on any Lot, unless such item is visually
screened in a manner approved in writing by the Covenants Committee. No outside
storage and operations shall 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 shall be stored so as to be visually screened
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from all streets and adjacent and surrounding Lots. The Covenants Committee 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.
6.06 Signs and Lighting. ' The location, color, nature, size, design and
construction of all signs or outdoor lights located on any portion of the Property shall be
approved in writing by the Covenants Committee, and must be in keeping with the
character of the Property and in accord with guidelines established by the Covenants
Committee. 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, shall 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 shall be nailed or otherwise attached to trees and no sign
shall be erected by any Owner upon the Common Area. No clotheslines and no
outdoor clothes drying or hanging shall be permitted on the Property, nor shall 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
Units, and no awnings, canopies or shutters (except for those theretofore or hereinafter
installed by Declarant) shall be affixed or placed upon the exterior walls or roofs of
Units, or any part thereof, nor relocated or extended, without the prior written consent of
the Board of Directors.
6.07 Vehicles. No commercial truck, commercial bus, taxicabs or other
commercial vehicle of any kind, boats, trailers, campers, recreational vehicles and
motor homes shall be parked in any visible location on the Property without the prior
written approval of the Covenants Committee. Commercial vehicles shall be deemed to
include cars and vans in styles normally used for private purposes but painted with or
carrying commercial advertising, logos, or 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 shall be
parked on any Lot or on Common Area. The repair or extraordinary maintenance of
vehicles shall not be carried out on the exterior of any Lot or on the Common Areas;
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.
6.08 Animals. Owners shall not keep in any Dwelling Unit animals, wildlife,
livestock, reptiles or poultry of any kind, other than domesticated household birds and
fish, house dogs or domesticated house cats. All animals shall be leashed (if outdoors)
or kept within the Dwelling Unit and shall not be permitted to roam free. The
Association may restrict the walking of pets to certain areas. Owners who walk their
pets on Common Area must clean up after their pets. Commercial activity involving
pets, including, without limitation, boarding, breeding, grooming or training is not
allowed. The ability to keep a pet is a privilege, not a right. If, in the opinion of the
Board, any pet becomes a source of unreasonable annoyance to others, or the Owner
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of the pet fails or refuses to comply with these restrictions, the Owner, upon written
notice, 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. Pursuant to rules
and regulations, the Board may further regulate pets, including but not limited to 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.
6.09 Garages. No garage located on the Property shall 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.
6.10 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 to be established by the Covenants Committee, and approved by the Board of
Directors which standards shall 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 shall 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 shall dump garbage, trash or
other refuse into any waterway on the Property.
6.11 Landscaping. The land area not occupied by Structures,
hard-surfacing, vehicular driveways or pedestrian paths, shall be kept planted with
grass, trees or shrubs or other ground covering or landscaping in conformance with the
standards set by the Covenants Committee and approved by the Board of Directors.
Such standards will take into consideration the need for providing effective site
development to:
(a)enhance the site and building,
(b)screen undesirable areas or views,
(c) establish acceptable relationships between buildings, parking
and adjacent properties, and
(d)control drainage and erosion.
The Covenants Committee 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 site development plan by
the Declarant and approved by all appropriate authorities of the County for Declarant or
for any Participating Builder shall not be subject to the review or approval of the
Covenants Committee.
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6.12 Maintenance of Premises and Improvements. Each Owner shall at all
times keep his premises, buildings, improvements and appurtenances in a safe, clean,
neat and sanitary condition. Appropriate maintenance shall include, but not be limited
to, the seeding, watering and mowing of all lawns, the pruning and cutting of all trees
and shrubbery and the painting (or other appropriate external care) of all buildings and
other improvements all in a manner and with such frequency as is consistent with good
property management (with the exception of those Lots on which the Association may
provide maintenance of landscaping). The Owner shall comply with all laws, ordinances
and regulations pertaining to health, safety and pollution, and shall provide for storage
and removal of refuse, trash and rubbish from his premises in a manner to be approved
by the Covenants Committee,
The Association shall be responsible for maintenance of storm drainage
and storm water management facilities located within the Property, and the Owner of
any Lot on which there is located an easement for storm water drainage, management
or control shall be responsible for the following items of maintenance,where applicable:
grass mowing with reasonable frequency and the removal of debris and other matter to
the best of said owner's ability where such debris or matter has impeded or threatens to
impede the free flow of storm water through drainage structures. Notwithstanding the
foregoing, at such time as the County, through a department of public works, or some
similar agency, by some clear and unequivocal act such as the recordation of a
document among the land records of the County elects to maintain the storm drainage
facilities contained within the easements, or elects to maintain all such easements
within the watershed where such easements are located, the maintenance obligations
identified in this paragraph shall cease and terminate.
6.13 Enforcement of Maintenance. The Covenants Committee, or its agent,
during normal business hours, shall have the right to do any and all maintenance work
reasonably necessary in the opinion of the Covenants Committee, 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 to the Association
upon demand and collected in accordance with Article 4 of this Declaration. Such
action may be taken after 10 days' notice (notice to be provided by regular or certified
mail or posted on the door of the Dwelling Unit, with a witness, to the Owner of any Lot
involved, setting forth the maintenance action to be taken) if at the end of such time
reasonable steps to accomplish such action have not been taken by the Owner. The
Covenants Committee, or its agent, shall 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 opinion of the Covenants Committee, 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 Covenants Committee or
is unattractive in appearance. The lien provided under this Section shall not be valid
against a bona fide purchaser (or bona fide Mortgagee) of the Lot in question unless a
suit to enforce such lien shall have been filed in the court of record and notice thereof
shall have been filed in the appropriate records of the County prior to the recordation
among the records of the County of the deed (or Mortgage or deed of trust) conveying
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the Lot in question to such purchaser(or subjecting the same to such Mortgage or deed
of trust).
6.14 Maintenance During Construction. During construction it shall 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 shall be permitted on any Lot.
6.15 Miscellaneous.
(a)Without prior approval of the Covenants Committee:
(i) no water pipe,gas pipe, sewer pipe, or drainage pipe,
or industrial process pipe,except reasonable quantities of hoses and movable piping
used for irrigation purposes,shall be installed or maintained on any Lot above the
surface of the ground.
(ii) no previously approved Structure shall be used for
any purpose other than that for which it was originally designed.
(iii) no Lot shall be split,divided, or subdivided for sale,
resale, gift,transfer or otherwise, unless by deed of resubdivision in accordance with
the applicable County requirements.
(iv) no facility, including but not limited to, poles, wires
and conduits for transmission of electricity, telephone messages and the like shall 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 shall be
maintained other than on the roof or in the backyard of Lots(provided, however, that the
Association shall comply with all federal laws and regulations affecting antennas and
satellite dishes).
(b)No Lot or portion thereof shall 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.
6.16 Land Development Activity. The foregoing provisions of Article 6 shall
not be applicable to Land Development Activity. Without limiting the generality of the
foregoing exclusion, the Declarant and Participating Builders shall have the right to
carry on the following activities in connection with Land Development and 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
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(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 the Declarant, by any Person designated by the Declarant or
Participating Builders. Land Development Activity and sales operations shall in all
events be subject to the local zoning ordinances, and all other applicable laws, rules
and regulations of governmental authorities;and
(c) to utilize reasonable signage without the written permission
required above in 6.06. The Declarant shall retain the right to determine in its sole
discretion whether or not such signage is acceptable so this right may be limited.
ARTICLE 7—Annexations and/or Withdrawals
7.01 Additions by the Declarant. The Declarant hereby reserves the right
(but not the obligation) at any time within 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, including but not limited to
the land subjected to the Proffers. Action under this Section shall not require the prior
approval of the Class A Members, Class B 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.
7.02 Additions by the Members. After the Development Period, additional
lands not owned by the Declarant may be subjected, annexed or submitted to this
Declaration with the written consent of 66 2/3% of the Class A and Class B 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 Section.
7.03 Withdrawable Real Estate. During the Development Period, the
Declarant has the unilateral right, without the consent of the Association, any Owner or
Mortgagee, to execute and record an amendment to the Declaration withdrawing any
portion of the Property from the operation of this Declaration. If the Declarant does not
own said portion, then the Owner of such portion must also sign the amendment. This
subsection shall not apply to any Lot located on the Property for which a certificate of
occupancy has been issued by the County.
ARTICLE 8-Easements
8.01 Development Easements.
(a)General Easement. The 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 for all purposes reasonably related to
the development and completion of the improvements on the Property and on any
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adjacent property now owned or hereafter acquired by the Declarant, Wendell W.
Wood, his heirs, or any entity wherein Wendell W. Wood has at least a fifty (50%)
ownership interest , 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 the Declarant shall 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, roads, 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.
(b)Easement to Facilitate Sales. Notwithstanding anything to the
contrary contained herein to the contrary, the Declarant hereby reserves to itself, its
successors and assigns and its designees the right to: (i) use any Lots owned or
leased by the Declarant, 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 the Declarant or
its designee, as appropriate, shall 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,
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 all signs shall comply with applicable governmental
regulations and the Declarant shall 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, which consent shall not be unreasonable withheld conditioned or delayed;
and (iii) relocate (in a permissible location) or remove all or any of the above from time
to time at the 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.
(c) Utility Easements. The Declarant hereby creates, and there is
hereby reserved to the 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 Common Area, as the Declarant may consider to be
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reasonably necessary (the "Utility Easements") for the development of the Property.
The Utility Easements shall include 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 by Declarant and except as
otherwise provided in this Declaration; provided, however, that no utility line shall run
beneath a Dwelling Unit other than the utility lines serving such Dwelling Unit.
Declarant shall have 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.
(d)Specific Development Easement Areas. The 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.
(e)Dedications and Easements required by Governmental
Authority. The 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. The 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 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.
(f) Drainage and Erosion Control. Declarant reserves a perpetual
easement, right and privilege to enter upon any Lot or Common Area, 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 waterfiow and soil
erosion or siltation; provided, however, that Declarant or the Association shall not
exercise such right unless it has given the Owner of the Lot or the Association (as to
the Common Area) at least ten (10) days' prior notice thereof and the Owner or the
Association, as the case may be, has failed to take appropriate action to correct or
prevent the erosion or siltation problem (the notice provision shall 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 shall, if reasonably
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attributable to an Owner, become an individual assessment upon the Lot and shall
constitute a lien against the Lot and shall be collectible in the manner provided herein
for the payment of assessments. This Section shall not apply to Lots owned by
Declarant.
(g) Storm Water Management Easement. The 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 storm water management facilities.
(h) Specific Easements. The 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 excluding any areas occupied by a home,
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). The
Declarant or the Association, as appropriate,shall be solely responsible for selecting
and maintaining all landscaping in the Common Area.
(ii) Locating, relocating, constructing, maintaining,
protecting,enhancing and otherwise controlling all improvements located in the private
access easements (Private Streets)and walkways or pathways located within the
Property.
(iii) Locating, relocating, constructing, maintaining,
protecting and otherwise controlling ail electrical, oil,gas,solar,television, telephone,
microwave, cable, telecommunication systems,sanitary and storm sewer, storm water
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 shall have 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.
The Declarant or the Association, as appropriate, or their agents
and designees, shall have the mutual right and responsibility to perform the tasks and
functions listed in Subsections (a) through (h) above to the exclusion of all others,
including all Owners.
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(i) Further Assurances. Any and all conveyances made by the
Declarant to the Association or any Owner shall be conclusively deemed to
incorporate these reservations of rights and easements, whether or not set forth in
such grants. Upon written request of the Declarant, the Association and each Owner
shall from time to time sign, acknowledge and deliver to the 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 the 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.
8.02 Duration and Assignment of Easements and Rights. The 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. The
Declarant shall notify the Association of any such assignment or designation by the
Declarant. The rights and easements reserved by or granted to the Declarant pursuant
to this Article shall continue until the end of the Development Period, and shall lapse
and become null and void thereafter, unless specifically stated otherwise. The
easements granted to the Association or any other entity pursuant to the rights set forth
herein shall survive the expiration of the Development Period.
8.03 Association Power to Make Dedications and Grant Easements. The
Declarant, on behalf of itself and its successors and assigns, hereby also grants to the
Association the rights, powers and easements reserved to the Declarant above. These
rights, powers and easements may be exercised by the Association;provided, however,
that the limitations on duration applicable to the Declarant shall not apply to the
Association. The Association, however, shall not exercise any such easement rights to
the detriment of Declarant's rights reserved hereunder. If the Declarant or any Owner
requests the Association to exercise its powers under this Section, the Association's
cooperation shall not be unreasonably withheld, conditioned or delayed.
8.04 Easement for Upkeep.
(a)Association Access. The 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 or any other similar improvement) to the
Association, the managing agent and any other Persons authorized by the Board of
Directors in the exercise and discharge of their respective powers and responsibilities,
including without limitation, to make inspections, correct any condition originating in 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 shall be liable to the Association for the cost of all upkeep
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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 shall become an assessment
against the Owner and upon the Owner's Lot, and shall 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, the
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. The 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.
8.05 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).
(b) The Declarant, the Association or any Owner, as appropriate,when
exercising the rights and easements granted by this Article, shall: (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 the Declarant nor the
Association shall exercise any such rights within the interior of a Dwelling Unit on a Lot
without the prior written consent of the Owner, which consent shall not be unreasonably
withheld, conditioned or delayed.
(c) If an easement is relocated, the cost of such relocation shall be
paid by the party requesting the relocation.
(d) Any damage to property resulting from the exercise of the aforesaid
rights and easements shall be promptly repaired and the site restored to its original
condition to the extent practicable by the Declarant or the Association, as appropriate,
or at the option of the Declarant or the Association, the party responsible for such
damage. In either case, the cost of such repair and restoration shall be paid for by the
party responsible for the damage.
(e) Nothing within this Article shall 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 the Declarant during the
Development Period, which approval may be withheld in the Declarant's sole discretion.
8.06 Crossover Easement. If the Owner (including the 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
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Owner, such Owner shall have an easement to do so, provided that said Owner shall
use the most direct, feasible route in entering and crossing over such an area and shall
restore the surface so entered or crossed to its original condition, at the expense of said
Owner, and further provided that such easement shall not exist on the land of any other
Owner if the purpose for the entrance or crossing is one requiring approval of the Board
of Directors, unless such approval has been given.
8.07 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, fire fighting, and other emergency personnel of the
County and to vehicles operated by said personnel while in the pursuit of their duties.
Said emergency personnel shall also have the right of enforcement of cleared
emergency vehicle access on the roadways and driveways on the Property.
8.08 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 shall be valid easements for the maintenance of said encroachments so
long as they shall exist, and the rights and obligations of Owners shall not be altered in
any way by said encroachment, settlement or shifting; provided, however, that in no
event shall a valid easement for encroachment 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 shall be permitted and that there shall be valid
easements for the maintenance of said encroachments so long as they shall exist.
8.09 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 the Declarant as attorney-in-fact to grant, relocate and
terminate all easements, rights-of-way and licenses which the 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 the Declarant as attorney-in-fact shall 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 shall not authorize
the 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. The
Declarant shall 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
the Declarant may not own the real estate which the Declarant has the power and
authority to subject to easements, rights-of-way and licenses.
8.10 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
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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 shall 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 shall 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 shall 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.
8.11 Community Systems Easement. For purposes of this Section 8.11,
"Community Systems" shall mean and refer to any and all cable television,
telecommunication, alarm/monitoring, internet, telephone or other lines, conduits, wires,
amplifiers, towers, antennae, satellite dishes, equipment, materials, and installations
and fixtures (including those based on, containing and serving future technological
advances not now known), if installed by Declarant, or pursuant to any grant of
easement or authority by Declarant within the Property.
The Property shall be subject to a perpetual non-exclusive easement for the
installation and maintenance, including the right to read meters, service or repair lines
and equipment, and to do everything and anything necessary to properly maintain and
furnish the Community Systems and the facilities pertinent and necessary to the same,
which easement shall run in favor of the Declarant. The Declarant shall have the right,
but not the obligation, to install and provide the Community Systems and to provide the
services available through the Community Systems to any and all Lots within the
Property. Neither the Association nor any Owner shall have any interest therein. Any
or all of such services may be provided either directly through the Association and paid
for as part of the Assessments or directly to the Declarant, any affiliate of the Declarant,
or a third party, by the Owner who receives the services. The Community Systems
shall be the property of the Declarant unless transferred by the Declarant, whereupon
any proceeds of such transfer shall belong to the Declarant. The Declarant shall have
the right but not the obligation to convey, transfer, sell or assign all or any portion of the
Community Systems or all or any portion of the rights, duties or obligations with respect
thereto, to the Association or to any Person. The rights of the Declarant with respect to
the Community Systems installed by the Declarant and the services provided through
such Community Systems are exclusive, and no other Person may provide such
services through the Community Systems installed by the Declarant without the prior
written consent of the Declarant. in recognition of the fact that interruptions in cable
television and other Community Systems services will occur from time to time, no
person or entity described above shall in any manner be liable, and no user of any
Community System shall be entitled to any refund, rebate, discount or offset in
applicable fees, for any interruption in Community Systems services, regardless of
whether or not same is caused by reasons within the control of the then-provider of
such services.
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ARTICLE 9-Private Street Maintenance
The Private Streets are to be maintained as follows:
9.01 Minimum Standard. The Private Streets shall be maintained in perpetuity
to substantially the same condition as they were approved on March 1, 2010 by the
County, which is shown on a"Typical Section for Private Streets with Curb &Gutter"on
Sheet 3 of the approved site plan (SDP 2006-41)for Briarwood, Phases 1A-1, 18-1, 4&
8, prepared by The Engineering Groupe, dated April 18, 2007. The travelways shall at
all times be maintained so they are safe and convenient for passenger automobiles and
emergency vehicles at all times except in severe temporary weather conditions.
9.02 Maintenance. For the purposes of this Article, "maintenance", includes the
maintenance of the private streets or alleys, and all curbs, curbs and gutters, drainage
facilities, utilities, dams, bridges and other private street improvements, and the prompt
removal of snow, water, debris, or any other obstruction so as to keep the private street
or alley reasonably open for usage by ail vehicles, including emergency services
vehicles. For the purposes of this Article, the term "to maintain," or any derivation of
that verb, includes the maintenance, replacement, reconstruction and correction of
defects or damage.
9.03 Cost of Maintenance. Under Article 4, the Association shall collect Private
Street Maintenance Assessments and shall be responsible for the costs of the
maintenance of, and or repair to the Private Streets. No public agency, including the
Virginia Department of Transportation and the County of Albemarle, Virginia, will
be responsible for maintaining any improvement identified herein this Article.
ARTICLE 10-Party Walls and Fences
The rights and duties of the Owners of Lots with respect to party walls and party
fences shall be governed by the following:
10.1 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, shall constitute a party wall, and with respect to
such wall, each of the adjoining Owners shall 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, shall apply thereto.
10.2 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
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event, both such adjoining Owners shall proceed forthwith to rebuild or repair the same
to as good condition as formerly, at equal expense.
10.3 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 shall forthwith proceed to rebuild and repair the
same to as good condition as formerly, without cost to the adjoining Owner.
10.4 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 shall first obtain the
written consent of the adjoining Owner.
10.5 Right to Contribution Runs With Land.The right of any Owner to
contribution from any other Owner under this Article 9 shall be appurtenant to the land
and shall pass to such Owner's successors in title.
10.6 Party Fences. The provisions of this Article shall also apply to any fence,
other barrier or shared improvement between Lots, which is installed by the 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 shall be the responsibility of the Owner who has had it installed.
10.7 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 shall be submitted to its Board of Directors,who shall decide the dispute, and
the decision of such Board of Directors shall be final and conclusive upon the parties.
ARTICLE 11-Mortgages
11.01 Notices to Mortgagees, etc. Provided that such First Mortgagee has
notified Association in writing of the existence of its Mortgage, the Association shall
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 thirty(30) days and the Association shall 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 thirty(30)days following the date
of such default.Any failure to give any such notice shall not affect the validity or priority
of any first Mortgage on any Lot and the protection extended in this Declaration to the
holder of any such Mortgage shall not be altered, modified or diminished by reason of
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such failure.
11.02 Presumptive Approval. Notwithstanding the foregoing, all notices and
rights of Mortgagees shall 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 10 and the Mortgagee does not respond
within sixty(60)days of such notice,then such Mortgagee shall be deemed to have
approved such notice or requested consent.
ARTICLE 12-Insurance and Casualty Losses
12.01 Insurance. The Board of Directors or its duly authorized agent shall
have the authority to and shall obtain insurance for all insurable improvements on the
Common Area. This insurance shall 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 Board shall 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 three (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 shall
have at least a Five Hundred Thousand ($500,000.00) Dollar per person limit as
respects bodily injury, a One Million ($1,000,000.00)Dollar limit per occurrence, and a
Two Hundred Fifty Thousand ($250,000.00)Dollar minimum property damage limit.
Premiums for all insurance on the Common Area shall be common expenses of the
Association; premiums for insurance provided to other associations shall be charged to
those associations. The policy may contain a reasonable deductible,and the amount
thereof shall be added to the face amount of the policy in determining whether the
insurance at least equals the full replacement cost.
Cost of insurance coverage obtained for the Common Area shall be included in
the Annual General Assessment, as defined in Article 4, Section 4.01.
All such insurance coverage obtained by the Board of Directors shall be written in
the name of the Association as Trustee for the respective benefited parties, as further
identified in (b) below. Such insurance shall be governed by the provisions hereinafter
set forth:
(a)All policies shall be written with a company licensed to do
business in Virginia and holding a rating of at least A-VIIIX in the most recent Best's
Rating Guide, if available and, if not available,the most nearly equivalent rating.
(b)Ail policies on the Common Area shall be for the benefit of
the Owners and their Mortgagees as their interests may appear.
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(C) Exclusive authority to adjust losses under policies in force on
the Common Area obtained by the Association shall be vested in the Association's
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 shall the insurance coverage obtained and
maintained by the Association's 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 shall be primary.
(e)All casualty insurance policies shall 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 Association's Board of Directors shall 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 Association's Board of Directors, its manager, the Owners and their
respective tenants, employee, 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;
(v) That any"other insurance"clause in any policy
exclude individual Owners' policies from consideration.
12.02 No Partition. Except as is permitted in the Declaration, there shall be no
physical partition of the Common Area or any part thereof, nor shall 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 11.04 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 shall not be construed to 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.
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12.03 Disbursement of Proceeds. Proceeds of insurance policies shall be
disbursed as follows:
(g) 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, shall 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, if any Dwelling Unit is involved and their
Mortgagee(s) as their interests may appear, shall 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.
(h)If it is determined as provided for in Section 11.04 of this
Article that the damage or destruction to the Common Area for which the proceeds are
paid shall not be repaired or reconstructed, such proceeds shall be disbursed in the
manner as provided for excess proceeds in Section 11.03(a) hereof.
12.04 Damage and Destruction.
(1) 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 shall 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.
(j) Any damage or destruction to the Common Area shall be
repaired or reconstructed unless at least seventy-five percent(75%)of the total votes
in existence of the Association shall decide within sixty(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 shall be extended until such information shall be
made available; provided, however, that such extension shall not exceed sixty (60)
days. No Mortgagee shall have the right to participate in the determination of whether
the community facility damage or destruction shall be repaired or reconstructed.
(k) 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
shall not be repaired or reconstructed and no alternative improvements are
authorized, then and in that event the Property shall 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.
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12.05 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 shall,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 shall be deposited to the benefit of the
Association,
ARTICLE 13-Condemnation
Whenever all or any part of the Common Area shall be taken (or conveyed in lieu
of and under threat of condemnation by the Board 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
condemnation or eminent domain, each Owner shall be entitled to notice thereof and to
participate in the proceedings incident thereto unless otherwise prohibited by law. The
award made for such taking shall 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 sixty(60)days after such taking the Declarant and
at least seventy-five percent (75%) of the votes of the Class A Members of the
Association shall otherwise agree, the Association shall 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 of the Association. If such improvements are to be repaired or restored, the
above provisions in Article 11 hereof regarding the disbursement of funds in respect to
casualty damage or destruction which is to be repaired shall 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 shall be disbursed to the
Association and used for such purposes as the Board of Directors of the Association
shall determine.
ARTICLE 14—Amendment
14.01 General Amendments. Subject to Section 13.02 and Section 14.08 and the
other limitations set forth in this Declaration, this Declaration may be amended by an
instrument approved by not less than sixty-seven percent(67%) of the votes cast at a
duly-called meeting of the Members at which a quorum is present. The amendment
instrument shall be recorded among the Land Records for the jurisdiction in which this
Declaration is recorded. Unless a later date is specified in any such instrument, any
amendment to this Declaration shall become effective on the date of recording.
14.02 Declarant Amendments. Notwithstanding anything to the contrary herein
contained,the Declarant reserves the right to amend this Declaration and convey
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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 Federal
Housing Administration (FHA), The Federal National Mortgage Association (FNMA),
The Federal Home Loan Mortgage Corporation(FHLMC), and/or any similar lending
entities; any 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 or withdraw land as described in
Article 7.
ARTICLE 15-General Provisions
15.01 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 they shall be automatically extended for successive periods
of twenty(20)years unless amended or terminated as provided in this Article.
15.02 Enforcement. The Association, the Declarant or any Owner, shall have
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 shall in no event be deemed a waiver of the
right to do so thereafter. The provisions of this Section shall be in addition to and not in
limitation of any rights or remedies provided in other Sections of this Declaration.
15.03 Severability. Invalidation of any one of these covenants or restrictions by
judgment or court order shall in no way affect any other provisions hereof which
provisions shall remain in full force and effect.
15.04 Construction. The Board of Directors shall have 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 shall be final and binding as to
all persons and entities benefited or bound by the provisions of this Declaration.
15.05 Invalidity. The determination by a court of competent jurisdiction that any
provision of this Declaration is invalid for any reason shall not affect the validity of any
other provision hereof.
15.06 Headings. The headings of the Articles and Sections of this Declaration
are for convenience only and shall not affect the meaning or construction of the
contents of this Declaration.
15.07 Gender. Throughout this Declaration, the masculine gender shall be
deemed to include the feminine and neuter, and the singular,the plural, and vice versa.
15.08 Dissolution. The Owners shall not dissolve or disband the Association,
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nor shall the Association dispose of any Common Area by sale, or otherwise, except to
an organization conceived and organized to own and maintain the Common Area,
without first offering to dedicate the same to the jurisdiction in which the Property is
located, or such other appropriate governmental agency. No such dissolution or
transfer of the obligations and responsibilities of the Association shall occur without the
approval of the appropriate agency of the County.
ARTICLE 16
ADDITIONAL COVENANTS
16.01 Legal Actions by Associations: No judicial or administrative proceedings
shall be commenced or prosecuted by the Association unless approved by fifty-one
(51%)percent of all votes in existence at the time. The foregoing shall not apply to
actions brought by the Association to enforce against homeowners 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(also referred to herein as the"Executive Board"). Any action brought by
the Association against an Owner or against the Declarant shall be resolved by binding
arbitration in accordance with the rules and procedures of Construction Arbitration
Services, inc. or its successor, or an equivalent organization selected by the Executive
Board.
16.02 Legal Actions By Owners.No Owner shall have 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 Executive Board by rule or regulation consistent with the
provisions of this Declaration. The Executive Board, or a committee as may be
appointed by the Executive Board, shall hear claims from Owners regarding alleged
violations of the Declaration, Bylaws, the Articles of Incorporation and any rules and
regulations(except for violations with respect to assessment obligations)of the
Association. The Executive Board or such committee shall hold a hearing on any such
claim within forty-five(45)days after receipt by the Executive Board of a written notice
of claim and request for a hearing from an Owner. A decision shall be issued in writing
by the Executive Board or such committee(which decision may at the Executive Board
or committee's discretion, but shall not be required, to include the rationale supporting
the decision)within fifteen (15)days after the conclusion of the hearing, unless the
parties involved agree to extend the timeframe for the decision.
Unless the internal remedies provided by this section and any rules and
regulations as may be promulgated by the Executive Board, shall be expressly waived
by the Association, or the Association fails or refuses to act, no legal proceeding shall
be commenced by any Owner until such internal remedy is pursued to exhaustion.
Once all Association procedures are exhausted, any and all disputes arising out of the
Declaration, Bylaws, Articles of Incorporation and any rules and regulations (except for
violations with respect to assessment obligations) of the Association and all other torts
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Page 39 of 52
and statutory causes of action ("Claims") shall be resolved by binding arbitration in
accordance with the rules and procedures of Construction Arbitration Services, Inc or its
successor or an equivalent organization selected by Executive Board.
ARTICLE 17—Development Plan
17.01 Planned Community. Subject to the Declarant's right to modify the
development plan, present intentions to develop Briarwood include the following
phases: 1A, 1B,4, 5, 6 and 8. As all ora portion of such phases receive approval, then
the Declarant intends to subject those additional lands to this Declaration, as amended.
17.02 Commercial Tracts. The Declarant is hereby disclosing that it is the
Owner of certain Commercial Tracts located along State Route 29 and adjacent to the
Property. The Commercial Tracts are not part of the Property and are not subject to this
Declaration.
All Lot owners and prospective lot owners should take notice of the location of the
Commercial Tracts and make such further inquiry as they deem sufficient to determine
whether the proximity of the Commercial Tracts may present a temporary or permanent
impairment to their enjoyment of their Lot.
[SIGNATURES ARE ON THE FOLLOWING PAGES.]
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{
Page 40 of 52
IN WITNESS WHEREOF, the undersigned have executed this instrument as of
the date above.
DECLARANT
WOODBRIAR ASSOCIATES LIMITED
PARTNERSHIP
BY S-V ASSOCIATES, General Partner
By: % /Y seal}
STATE OF VIRGINIA:
COU : to-wit:
c2 i of «1792..zD'resdJ..,E
The foregoing instrument was acknowledged before me this 7.9 - day of
, 20 , by WENDELL W. WOOD, General Partner of S-V
ASSOCIATES, General Partner of Woodbriar Associates Limited Partnership on behalf
of said partnership.
NOTARY PUBLIC
My commission expires: � C 3U 26)/S
My notary registration no. /U/,(1f/T
ARIENE PROPST
Notory Public
Commonwealth of Virginia
101449
My Commission Expires�/34/) }
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{
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Page 41 of 52
BRIARWOOD II OWNERS ASSOCIATION
By: - . (seal)
Name: ze1-r r'/" ie.). tlJa`oC.----
Title: President
STATE OF VIRGINIA:
GOUN-T-Y OF / : to-wit:
qty
Thgoing instrument was acknowledged before me this T!/- day of
,(Qttc , 20 r1 , by %/44de// a}, ,anee , President of
Briarwood II Owners Association, on behalf of said sociation.
/
ARY PUBLIC
My commission expires: 30. O/3l
My notary registration no ,v iii j
ARLENE PROPST
Notary Public
Commonwealth of Virginia
101449
My Commission Expires
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Page 42 of 52
EXHIBIT A
Legal Description
Of
Property
All those certain lots or parcels of land shown on
plat of The Engineering Groupe, Inc., dated April 5, 2011,
entitled "Final Subdivision Plat for Briarwood, Phases 1A-
2, 1B-2 & 8", attached hereto, recorded along with, and
made a part of this Declaration; being a portion of the
property which was conveyed to Woodbriar Associates Limited
Partnership, a New York limited partnership, by deed of S-V
Associates, dated February 29, 1980 and recorded in the
Clerk' s Office of the Circuit Court of Albemarle County,
Virginia in Deed Book 690, page 232.
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