HomeMy WebLinkAboutSUB201600018 Agreements Final Plat 2016-06-03 Community Development Document Review
County Attorney's Office
TO: V N Q.u, 1 e:rr`1
PROJECT NUMBER: S O 0) Z) ( -(.,u 1 f Yee Staff Ron
You have requested that our office review the attached development document identified below:
Drainage easement
Shared parking agreement/easement
Open space/greenway easement
Dedication of right-of-way
Parcel determination
"Other: Mat at e -v r► ct re em e.A-TA eacoic
The document:
is approved
is conditionally approved with minor edits shown on the attached or noted in the comment below
I is conditionally approved and ready to be circulated for signatures and acknowledgements
is conditionally approved with minor edits shown on the attached or noted in the comment below and ready
to be circulated for signatures and acknowledgements
is not approved because:
: Signatures or acknowledgement need to be redone (see comment below)
: Legal description needs to be revised (see comment below)
: Other (see comment below)
Comment:
If the document is approved,was submitted with the applicants' signatures,and is one to which the County is a
party,signatures indicating this office's approval as to form and the County Executive's approval or acceptance on
behalf of the County are provided. If the document did not include the applicants'signatures,a final version of the
document with the required signatures may now be submitted.
/ E Date: Dip/0.3 k,
Greg Gre 41; I er Depu fC oty orne
Community Development Document Review
County Attorney's Office
TO: J J I l v zN= r( V
PROJECT NUMBER: SL)13 20 r '- CS A-,t_ RU
You have requested that our office review the attached development document identified below:
Drainage easement
Shared parking agreement/easement
Open space/greenway easement
Dedication of right-of-way
Parcel determination
Other:
The document:
is approved
is conditionally approved with minor edits shown on the attached or noted in the comment below
is conditionally approved and ready to be circulated for signatures and acknowledgements
n C p,�,l
is conditionally approved witliinor edits own on the attached or noted in the comment below and ready
to be circulated for signatures and acknowledgements
is not approved because:
: Signatures or acknowledgement need to be redone (see comment below)
: Legal description needs to be revised (see comment below)
: Other(see comment below)
Comment: j1 t 6 l-‘ re -iT 1'( r' Q. 2-2 ro('oy (ff„-tee l'oble rri-5
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l►` [e Ces j 66 fi strmlc t erg
If the document is approved,was submitted th the applicants'signatures, and is one to which the County is a
party, signatures indicating this office's approval as to form and the County Executive's approval or acceptance on
behalf of the County are provided. If the document did not include the applicants'signatures,a final version of the
document with the required signatures may now be submitted.
Date:
Greg Kamptner
Deputy County Attorney
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COUNTY OF ALBEMARLE
Department of Community Development
401 McIntire Road, Room 227
Charlottesville, Virginia 22902-4596
Phone (434) 296-5832 Fax(434)972-4126
May 20, 2016
Greg Kamptner
County Attorney's Office
401 McIntire Road
Charlottesville,VA 22902
Regarding:
Project Name: SUB201600018 Free State Run - Final
Date Submitted: 5/5/16
Dear Mr. Kamptner:
The applicant has prepared and submitted a Declaration of Covenants and Restrictions of Open Space
and Landscape Maintenance and Private Street Maintenance for the above named project.The
applicant has identified the sidewalks, open space, private street, and landscaping that require perpetual
maintenance under Section 14-317. At your earliest convenience, please review the documents and the
attached plat.
Thanks,
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J.T. Newberry
Planner COUNTY Or AI_} Ehir^C t;..�=.
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Albemarle County Tax Map: Tax Map 62 Parcel 8
This document prepared by and to be returned to:
Brian S.Johnson(VSB 74484)
Law Offices of Brian S.Johnson PLLC
820 East High Street,Suite A
Charlottesville VA 22902
DECLARATION OF COVENANTS,CONDITIONS AND RESTRICTIONS OF OPEN
SPACE AND LANDSCAPE MAINTENANCE AND PRIVATE STREET MAINTENANCE
This DECLARATION OF COVENANTS,CONDITIONS AND RESTRICTIONS OF
OPEN SPACE AND LANDSCAPE MAINTENANCE AND PRIVATE STREET
MAINTENANCE(hereinafter,the"Agreement") is made this day of May,2016,by Free
State Partners,LLC and its successors and assigns(hereinafter,the"Declarant"),whose address
is PO Box 645, Charlottesville,VA 22902 and Union Bank&Trust and its successors and
assigns("Beneficiary")and Union Service Corporation("Trustee").
WITNESSETH
WHEREAS,the Declarant is the owner of a parcel of land known as Albemarle County,
Virginia(the"County")Tax Map 62 Parcel 8(the"Property")pursuant to the plat/deed in the
County Clerk's Office in Deed Book 4530,Page 216; and
WHEREAS,Tax Map 62 Parcel 8 will be subdivided by the Declarant into Lots 1
through 27,as shown and described on a plat by Roger W. Ray&Assoc.,Inc., dated December
23,2015 and revised on April 20, 2016,which was recorded immediately prior to the recordation
of this Agreement(hereinafter,the"Plat");and
WHEREAS,the access easements shown on the Plat and identified as"Free State Drive
36' Private R/W"and"Fallow Hill Court 36' Private Road"will be new thirty-six(36)foot wide
non-exclusive ingress and egress easements(each a"Street"and collectively,the"Streets")for
the use and benefit of Lots 1 through 27 shown on the Plat; and
WHEREAS,the easements shown on the Plat and identified as"10' Access&Utility
Easement"will contain sidewalks(hereinafter the"Sidewalks")for the use and benefit of Lots 1
through 27 shown on the Plat; and
WHEREAS,the Declarant desires to assure the perpetual maintenance of the Streets and
the Sidewalks for the benefit of the future owners of the Lots and their successors and assigns
(each an"Owner"and collectively,the"Owners")and
WHEREAS, Declarant desires to assure the perpetual maintenance of certain landscaping
(said landscaping in accordance with the landscape design approved by the County on April 1,
2016 and found in the"Site and Landscaping Plan" on Pages C-10,C-11 and C-12 of the Road
Plan for the Property, dated March 10,2015 and last revised February 24, 2016)for the benefit of
the Owners and their successors and assigns; and
WHEREAS, as evidenced by that certain Amended and Restated Credit Line Deed of
Trust and Security Agreement in the principal amount of$2,490,000.00 granted by Declarant to
Trustee for the benefit of Beneficiary dated November 4, 2015 and recorded November 5,2015 in
the County Clerk's Office in Deed Book 4692,Page 606(the"Deed of Trust"),Declarant granted
its interest in the Property as collateral; and
NOW,THEREFORE, for and in consideration of the premises and the undertakings
contained herein,the Declarant hereby declares that the Property shall be held,transferred, sold,
conveyed and occupied subject to the covenants,conditions,restrictions, license and reservations
hereafter set forth,which are for the purposes set forth in the Recitals(incorporated herein by
reference)which shall be binding on all parties herein any right,title or interest in the Property or
any part hereof,their respective successors and assigns, and which shall inure to the benefit of
each Owner thereof.
SECTION ONE
MAINTENANCE OF PRIVATE STREETS AND SIDEWALKS
Declarant hereby declares that the Streets and the Sidewalks shall be maintained as follows:
1. MINIMUM STANDARD: The Streets shall be maintained with a minimum twenty-five
(25)foot wide asphalt road and two(2)foot concrete curb and gutter and maintained in
perpetuity to substantially the same condition as when initially approved by the County.
The travelway shall at all times be maintained so that it is safe and convenient for
passenger automobiles and emergency vehicles at all times except in severe temporary
weather conditions; provided,however,that the Streets shall not be required to meet the
standards for acceptance into the secondary system of state highways for the State of
Virginia to the extent that such standards may exceed the requirements established by the
administrative code of the County. The Sidewalks shall be maintained in perpetuity to
substantially the same condition as when such improvements were initially approved by
the County.
2. MAINTENANCE: For purposes of this instrument, the term `maintenance' in regards to
the Streets and the Sidewalks shall include the maintenance of the private streets or
alleys, and all sidewalks,curbs,curbs and gutters,drainage facilities,utilities,dams,
bridges and other private street improvements, and the prompt removal of snow,water,
debris, or any other obstruction so as to keep the private street, alley or sidewalks
reasonably open for usage by all vehicles, including emergency services vehicles. The
term"to maintain,"or any derivation of that verb, includes the maintenance, replacement,
reconstruction and correction of defects or damage.
3. COST OF MAINTENANCE: Declarant and any future assignee of Declarant shall be
solely responsible for the cost of the maintenance of,and or repair to all the Streets and
the Sidewalks.No public agency,including the Virginia Department of
Transportation and the County of Albemarle,Virginia,will be responsible for
maintaining any improvement identified herein.
4. WHEN TO MAINTAIN: After the initial construction of the Streets and the Sidewalks,
any further construction,maintenance or repair shall be undertaken when deemed
appropriate by the Declarant,provided that in the event that one of the Owners
determines that the Streets are not safe and convenient for passenger automobiles and
emergency vehicles at all times except in severe temporary weather conditions, and such
Owner gives 30 days prior written notice to the Declarant, such Owner may commence or
fkiad
contract for maintenance or repair to bring the Street to the minimum standard and the
charges therefore shall be the responsibility of the Declarant and its successors and
assigns,and may thereafter commence an action at law to collect sufficient funds from
the Declarant to reimburse the Owner for such costs.
SECTION TWO
MAINTENANCE OF LANDSCAPING
Declarant shall be obligated to perpetually maintain the landscaping described in the Site and
Landscaping Plan, including all landscaping contained with the"Stormwater Management
Easement"as shown on the Plat,and all landscaping contained within the"10' Access&Utility
Easement"shown on the Plat. For purposes of this instrument,the term"maintenance"(or any
derivation of that verb) includes the maintenance,replacement,reconstruction and the correction
of any defects or damage. Declarant and its successors and assigns shall be responsible for the
cost of the maintenance obligations referenced herein.No public agency, including the Virginia
Department of Transportation or the County, will be responsible for any of the maintenance
obligations referenced hereunder. For purposes of this Section 2 of this instrument,the term
`maintenance' (or any derivation thereof)includes the maintenance,replacement,reconstruction
and correction of defects or damage to the landscaping.
SECTION THREE
CONSENT OF BENEFICIARY
Beneficiary and Trustee join herein to evidence their consent to this Declaration; provided,
however, neither Beneficiary nor Trustee makes any warranty or any representation of any kind
or nature concerning this Declaration or any of its terms or provisions, or the legal sufficiency
thereof and disavows any such warranty or representation, it being understood that neither
Beneficiary nor Trustee assumes or shall be responsible for any of the obligations or liability of
Declarant, its successors or assigns,as contained in this Declaration.
[Signatures follow on the next pages]
IN WITNESS WHEREOF, the Declarant has caused this Declaration to be executed on
its behalf by its duly authorized agent.
FREE STATE PARTNERS, LLC
BY: Red Dirt Developments LLC
Its manager
BY:
Name: Jess W. Achenbach
Title: Manager
STATE OF VIRGINIA
CITY/COUNTY OF ,to-wit:
The foregoing Declaration was acknowledged before me this day of May, 2016, by Jess W.
Achenbach, in his capacity as the Manager of Red Dirt Developments LLC, a Virginia limited
liability company, in its capacity as the Manager of Free State Partners, LLC, a Virginia limited
liability company,on behalf of said limited liability company.
Notary Public
My commission expires:
UNION BANK&TRUST
BY:
Name:
Title:
STATE OF VIRGINIA
CITY/COUNTY OF ,to-wit:
The foregoing Declaration was acknowledged before me this day of May, 2016, by
,in his/her capacity as of Union Bank&Trust, on its behalf.
Notary Public
My commission expires:
4100
UNION SERVICE CORPORATION, TRUSTEE
BY:
Name:
Title:
STATE OF VIRGINIA
CITY/COUNTY OF ,to-wit:
The foregoing Declaration was acknowledged before me this day of May, 2016, by
, in his/her capacity as of Union Service Corporation, Trustee,
on its behalf.
Notary Public
My commission expires:
2-4. t(
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DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS
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THIS DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS (the-�G.:�S�' t
"Declaration")is made as of ,2016,by FREE STATE PARTNERS,LLC,
a Virginia limited liability company, its successors and assigns (hereinafter referred to as
"Declarant"), and VILLAS AT BELVEDERE HOMEOWNERS ASSOCIATION, INC., a
Virginia non-stock corporation formed pursuant to the Virginia Property Owners' Association Act,
its successors and assigns (hereinafter referred to as the "Association"). UNION BANK &
TRUST, a Virginia banking corporation ("Lender"), and UNION SERVICE
CORPORATION, TRUSTEE, a Virginia corporation ("Trustee"), join herein in order to
evidence their consent to this Declaration as more fully set forth herein.
RECITALS:
A. As evidenced by that certain deed of bargain and sale dated August 13, 2014, from
Philip E. Brown, Sr., and Barbara J. Brown, husband and wife, to Declarant, which deed was
recorded on August 29, 2014, among the land records (the "Land Records") of Albemarle
County, Virginia (the "County"), in Deed Book 4530, page 216, the Declarant is the owner of
certain real property commonly known as County Tax Map Parcel 06200-00-00-00800 and
consisting of 7.09 acres, more or less, as shown on a plat made by Brian S. Ray, Land Surveyor,
Inc.,dated February 2,2012, and recorded in the Land Records in Deed Book 4131,page 192 (the
"Property").
B. As evidenced by that certain subdivision plat entitled "SUBDIVISION PLAT
LOTS 1 THROUGH 18, 19A, 19B AND 20 THROUGH 27 FREE STATE RUN AND
BOUNDARY LINE ADJUSTMENT PLAT PARCEL X, CONTAINING 0.05 ACRE, A
PORTION OF FREE STATE PARTNERS, LLC PROPERTY TO BE ADDED TO AND
COMBINED WITH THE PROPERTY OF PATRICK AND KRISTINE CAMPBELL LOCATED
ON STATE ROUTE 651 (FREE STATE ROAD) RIO MAGISTERIAL DISTRICT
ALBEMARLE COUNTY, VIRGINIA" dated December 23, 2015, last revised April 20, 2016,
prepared by Roger W. Ray & Assoc. Inc., and recorded among the Land Records in Deed Book
, page , Declarant subdivided the Property into various Lots (as hereinafter defined),
open spaces and other common facilities.
C. The Declarant desires to create on the Property a residential community which shall
have permanent open spaces and other common facilities for the benefit of the community.
D. The Declarant desires to provide for the preservation of the values of the
community and such other areas as may be subjected to this Declaration, and to provide for the
maintenance of the open spaces and other facilities,and,to this end,declare and publish their intent
1
to subject the Property to the covenants, conditions, restrictions, easements, charges and liens
hereinafter set forth, it being intended that they shall run with the Property and shall be binding on
all persons or entities having or acquiring any right, title or interest in the Property or any part
thereof and shall inure to the benefit of each owner thereof.
E. The Declarant has deemed it desirable for the efficient preservation of the values
of said community to create an association to which shall be delegated and assigned the powers of
owning, maintaining and administering the common areas and facilities, administering and
enforcing the covenants and restrictions made in and pursuant to this Declaration and collecting
and disbursing the assessments and charges hereafter created.
F. The Declarant has incorporated the Association as a non-stock corporation, under
the laws of the Commonwealth of Virginia for the purpose of exercising the functions of the
Association.
NOW, THEREFORE, the Declarant, for and in consideration of the premises and the
covenants contained herein, grants, establishes and conveys to each owner of a Lot(as hereinafter
defined) with the express concurrence of the Association,mutual, non-exclusive rights,privileges
and easements of enjoyment on equal terms and in common with all other owners of Lots in and
to the use of any Common Area and facilities; and further, the Declarant and the Association
declare the Property to be held, transferred, sold, conveyed and occupied subject to the covenants,
conditions, restrictions,reservations, easements, charges and liens hereinafter set forth, which are
for the purpose of protecting the value and desirability of, and shall run with, the Property and be
binding on all parties having any right, title or interest in the Property or any part thereof, their
respective successors and assigns, and shall inure to the benefit of each owner thereof
ARTICLE I
DEFINITIONS
Section 1. "Additional Declarant" shall mean SM Charlottesville, provided, however,
that SM Charlottesville shall not become the Additional Declarant until such time as it has
purchased at least one (1) of the Lots from Free State Partners pursuant to a separate purchase
agreement.
Section 2. "Annual Assessments" shall mean the Annual General Assessments (as
hereafter defined in the Article and Section hereof titled, "ASSESSMENTS. Annual Assessments")
and, if applicable, the Annual Service Assessments (as hereafter defined in the aforementioned
"Assessments"Article).
Section 3. "Architectural Character" shall mean the scale,style,design,material,quality
of construction and material, color and/or texture of a Structure (as hereinafter defined in the
Article and Section hereof titled, "DEFINITIONS. Structure").
Section 4. "ARB" shall mean the Architectural Review Board of the Association.
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Section 5. "Assessment" shall mean any fee, charge, expense, or other costs assessed
against an Owner or Lot by the Association pursuant to this Declaration.
Section 6. "Association" shall mean and refer to Villas at Belvedere Homeowners
Association, Inc., a Virginia non-stock corporation, formed pursuant to the Virginia Property
Owners' Association Act, its successors and assigns.
Section 7. "Board of Directors" or "Board" shall mean and refer to the executive and
administrative entity established by the Articles of Incorporation of the Association as the
governing body of the Association.
Section 8. "Builder" shall mean and refer to any person or entity (other than the
Declarant) who owns at any one time two (2) or more Lots for the purpose of constructing a
Dwelling Unit for sale on each of such Lots.
Section 9. "Common Area" shall mean and refer to any real property (including the
improvements thereto or facilities located thereon) owned by the Association for the common use
and enjoyment of the Members, and shall include any private streets shown on a recorded plat of
the Property and located within the Common Area's boundaries, and shall further include any
easements granted to the Association and/or for the benefit of the residents of the community, at
large.
Section 10. "Common Facilities" shall mean and refer to improvements, structures and
facilities owned and/or operated by the Association(if any)for the common benefit of the Owners,
including without limitation, stormwater management ponds, trails, paths, recreational and
meeting facilities, as well as any other facilities which the Association owns and/or operates.
Section 11. "County" shall mean and refer to Albemarle County, Virginia, and/or, the
proper governmental authorities of Albemarle County, Virginia, as the context may require.
Section 12. "Declarant" shall mean and refer to Free State Partners, any Successor
Declarant, or the Additional Declarant, any of whom may be referred to herein as a Declarant. At
such time as SM Charlottesville becomes the Additional Declarant and through the remainder of
the Declarant Control Period (the "Co-Declarant Period"), Free State Partners and SM
Charlottesville shall act as co-Declarants,and the rights and obligations of the Declarant hereunder
shall be exercised by the two of them jointly and only with the consent of each other, such consent
not to be unreasonably withheld.
Section 13. "Declarant Control Period" shall mean that period of time that commences
with the recordation of this Declaration and ends at such time as neither Declarant nor Additional
Declarant(including Successor Declarant,or other successors pursuant to an Assignment recorded
among the Land Records) owns a Lot.
Section 14. "Declaration" shall mean and refer to this Declaration of Covenants,
Conditions and Restrictions applicable to the Property, which Declaration is recorded in the Land
Records.
3
400 111111)
Section 15. "Dwelling Unit" shall mean and refer to any improvement to the Property
intended for any type of independent ownership for use and occupancy as a residence by a single
household and shall,unless otherwise specified, include within its meaning(by way of illustration
but not limitation) patio or zero lot line homes.
Section 16. "Free State Partners" shall mean Free State Partners, LLC,a Virginia limited
liability company.
Section 17. "Land Records" shall mean the land records of Albemarle County,
Virginia.
Section 18. "Lot" shall mean and refer to any plot of land created by and shown on the
Plat upon which a Dwelling Unit could be constructed in accordance with applicable zoning
ordinances, with the exception of the Common Area and streets dedicated to public use.
Section 19. "Member" shall mean and refer to every person or entity who holds a
membership in the Association, as more particularly set forth in the Article hereof titled,
"MEMBERSHIP".
Section 20. "Mortgagee" shall mean and refer to any person or entity secured by a first
mortgage or first deed of trust on any Lot or the Common Area who has notified the Association
of this fact in writing by Registered Mail or by Certified Mail-Return Receipt Requested.
Section 21. "Owner" shall mean and refer to the record owner, whether one (1) or more
persons or entities, of the fee simple title to any Lot, but excluding those holding such interest in
a Lot solely by virtue of a contract to purchase a Lot or as security for the performance of an
obligation. If more than one (1) person or entity is the record owner of a Lot, the term "Owner"
as used herein shall mean and refer to such owners collectively, so that there shall be only one(1)
Owner of each Lot.
Section 22. "Plat" shall mean that that certain subdivision plat entitled "SUBDIVISION
PLAT LOTS 1 THROUGH 18, 19A, 19B AND 20 THROUGH 27 FREE STATE RUN AND
BOUNDARY LINE ADJUSTMENT PLAT PARCEL X, CONTAINING 0.05 ACRE, A
PORTION OF FREE STATE PARTNERS, LLC PROPERTY TO BE ADDED TO AND
COMBINED WITH THE PROPERTY OF PATRICK AND KRISTINE CAMPBELL LOCATED
ON STATE ROUTE 651 (FREE STATE ROAD) RIO MAGISTERIAL DISTRICT
ALBEMARLE COUNTY, VIRGINIA" dated December 23, 2015, last revised April 20, 2016,
prepared by Roger W. Ray & Assoc. Inc., and recorded among the Land Records in Deed Book
, page .
Section 23. "Property" shall mean and refer to that certain real property described in the
Article and Section hereof titled, "PROPERTY SUBJECT TO THIS DECLARATION,
ANNEXATION AND WITHDRAWAL. The Property", and further shown on Exhibit A which is
attached hereto and incorporated herein by this reference, and such additions thereto which, from
time to time,may be brought within the jurisdiction of the Association.
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Section 24. "Public Entity" shall mean and refer to any governmental entity or agency,
including,without limitation,the Board of Supervisors of Albemarle County, Virginia,the School
Board of Albemarle County,Virginia,the Virginia Department of Transportation,any legislatively
created Water and/or Sewer Authority, and similar governmental entities. The phrase "Public
Entity" shall not include charitable,volunteer,or civic organizations,including,without limitation,
churches, volunteer fire departments and rescue squads, and organizations such as the YMCA.
Section 25. "Restricted Lots" means Lot 19A and Lot 19B as the same are shown on the
Plat, and any of the Restricted Lots may be referred to individually as a "Restricted Lot".
Section 26. "SM Charlottesville" shall mean SM Charlottesville, LLC, a Virginia limited
liability company, which has entered into a purchase agreement to purchase all of the Lots from
Declarant except for the Restricted Lots.
Section 27. "Structure" shall include, but not be limited to, any building or portion
thereof, wall, deck, play equipment, greenhouse, skylight, solar panel, weathervane, fence, pool,
pavement, driveway or appurtenances to any of the aforementioned.
Section 28. "Successor Declarant" means any of the successors or assigns of any
Declarant.
Section 29. "Supplementary Declaration" shall mean and refer to a supplement to this
Declaration which adds additional real property to the real property encumbered by this
Declaration. Such Supplementary Declaration may(but is not required to)impose, expressly or by
reference, additional restrictions and obligations on the land subjected to that Supplementary
Declaration.
ARTICLE II
PROPERTY SUBJECT TO THIS DECLARATION,
ANNEXATION AND WITHDRAWAL, RESTRICTED LOTS
Section 1. The Property. The real property which is and shall be held, transferred, sold,
conveyed and occupied subject to this Declaration is that certain real property described as
, all as shown on the Plat,
and such additions thereto which, from time to time,may be brought within the jurisdiction of the
Association.
Section 2. Annexation Without Approval of Class"A"Membership.The Declarant hereby
reserves the unilateral right and privilege (but under no circumstances, the obligation), from time
to time, to expand the Property by submitting all or any portion of such other real property (the
"Additional Property") to the provisions of this Declaration and the jurisdiction of the
Association on a phased basis, whether or not such land is owned by the Declarant, without the
consent of any Owner (except the owner of the Additional Property being submitted) or any
Mortgagee (except the holder of a deed of trust on the Additional Property being submitted) by
filing in the Land Records, a Supplementary Declaration annexing such real property. Such
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Supplementary Declaration shall not require the vote of Members and shall be effective upon the
filing for record of the Supplementary Declaration unless otherwise provided therein. Such
Supplementary Declaration shall provide an adequate legal description of the land being submitted
to the Declaration, any land being conveyed to the Association as Common Area, and any new
Lots. Upon recording of the Supplementary Declaration, the provisions of the Declaration shall
apply to the land thereby added as if such land were originally part of the Property.
Section 3. Amendment. This Article shall not be amended without the written consent of
Declarant.
Section 4. Annexation. Upon the expiration of the Declarant Control Period, the
Association may annex additional areas and provide for maintenance, preservation and
architectural control of Lots and Common Area within such areas, and so may add to its
membership under the provisions of the Article hereof titled "MEMBERSHIP", with the written
consent of at least sixty-seven percent (67%) of each class of Members, by filing in the Land
Records a Supplementary Declaration. Upon recordation of the Supplementary Declaration, the
provisions of the Declaration shall apply to the land thereby added as if such land were originally
part of the Property.
Section 5. Dedication for Public Use. During any period of construction and development,
the Declarant has the unilateral right without the consent of any Owner or Mortgagee to execute
and record an amendment to the Declaration withdrawing any portion of the Common Area or the
Property owned by the Declarant or the Association from this Declaration,if such land is dedicated
or to be dedicated to public use.
Section 6. Withdrawable Real Estate.
A. The Declarant shall have the unilateral right, without the consent of the
Class A Members or any Mortgagee, to execute and record an amendment to this Declaration
withdrawing any portion of the Property on which Dwelling Units have not been constructed;
provided,however, that not more than five (5) years have lapsed since the date such Property was
subjected to this Declaration. The Declarant may also, during said five (5) year period, withdraw
any property or Lots owned by third-parties, with the unanimous consent of the owners of the
property or Lot to be withdrawn. Upon the expiration of said five(5)year period, other properties
or Lots may be withdrawn only upon the written consent of at least sixty-seven percent (67%) of
all Owners and Mortgagees.
B. Upon the dedication or the conveyance to any Public Entity or authority of
any portion of the Property for public purposes, this Declaration shall no longer be applicable to
the land so dedicated or conveyed. Notwithstanding the foregoing, if such portion of the Property
is subsequently re-conveyed to an entity which is not a Public Entity, then this Declaration shall
once again apply to the portion of the Property no longer owned by a Public Entity. Absent such
dedication by separate instrument signed by the Public Entity accepting such land, no public
agency, including the Virginia Department of Transportation and the County will be responsible
for maintaining any improvement identified herein.
6
Section 7. Restricted Lots. In addition to any of the other terms,provisions, restrictions or
covenants with respect to the Lots as the same are set forth in this Declaration, Declarant hereby
imposes additional covenants, conditions and restrictions on the Restricted Lots as follows:
A. To the extent that any Owner of the Restricted Lots seeks to build any singl
family dwelling on the Restricted Lots, Stanley Martin Companies, LLC, a Maryland limited
liability company,or any of its affiliates shall be the designated Builder on each of such Restricted
Lots subject only to the parties' ability to agree on a commercially reasonable construction
contract(s) which shall be negotiated for in good faith by each of them (the "Building
Restriction"). The Building Restriction shall terminate on the earlier of the date which is three(3)
years from the date of the recording among the Land Records of the deed conveying title to the
Restricted Lots from Declarant to a third party or the date upon which Additional Declarant has
conveyed all of the Lots it agreed to purchase from Declarant to third party purchasers.
B. Until such time as any Owner of a Restricted Lot obtains a certificate of
occupancy for a dwelling unit on such Restricted Lot, such Owner shall have no obligation to pay
any Annual General Assessment or Annual Special Assessment (both as hereinafter defined) for
such Restricted Lot.
ARTICLE III
MEMBERSHIP
Every Owner of a Lot which is subject, by covenants of record, to assessment by the
Association shall be a Member of the Association. Membership shall be appurtenant to and may
not be separated from ownership of any Lot which is subject to assessment by the Association.
Ownership of such Lot shall be the sole qualification for membership. No Owner shall have more
than one (1) membership in the Association for each Lot it owns. In the event a person or entity
owns more than one(1) Lot,then such person or entity shall be considered a Member for each and
every such Lot, thereby entitling the Member to cast a vote for each Lot owned.
ARTICLE IV
VOTING RIGHTS
Section 1. Classes. The Association shall have two (2) classes of voting membership:
A. Class A: Class A Members shall be all Members and Builders with the
exception of the Class B Member. A Class A Member shall be entitled to one (1) vote for each
Lot in which it holds the interest required for membership by the Article hereof titled
"Membership".
B. Class B: The Class B Member shall be the Declarant, or, as applicable, the
co-Declarants if SM Charlottesville has become an Additional Declarant. Each Class B Member
shall be entitled to four(4)votes for each Lot in which it holds the interest required for membership
by the Article hereof titled "Membership". Class B membership shall cease, and a Class A
membership with one (1) vote for each Lot in which it holds an interest shall issue, on the
happening of any of the following events, whichever occurs first:
7
1. upon the filing with the Secretary of the Association of a written
resignation of membership by the Class B Member; or
2. twenty(20) years from the date of recordation of this Declaration in
the Land Records,unless such period is revived or extended,as set forth in the Article and Section
hereof titled, "VOTING RIGHTS. Annexation".
Section 2. Annexation. Upon annexation of additional properties pursuant to this
Declaration, and in the event that Class B membership shall have ceased as hereinabove provided,
Class B membership shall be revived with respect to all Lots owned by the Declarant,which Class
B membership shall cease and be converted to Class A membership on the happening of any of
the following events, whichever occurs first:
A. upon the filing with the Secretary of a written resignation of membership
by the Class B Member; or
B. twenty (20) years from the date of recordation in the Land Records of the
document annexing such property.
Section 3. Multiple Ownership Interests. If more than one (1) person or entity holds an
ownership interest in any Lot, the vote for such Lot shall be exercised as the owners of the Lot
among themselves determine and may be exercised by any one(1)of the people or entities holding
such ownership interest, unless any objection or protest by any other holder of such ownership
interest is made prior to the completion of a vote,in which case the vote for such membership shall
not be counted,but the Member whose vote is in dispute shall be counted as present at the meeting
for quorum purposes if the protest is lodged at such meeting. In no event shall more than one(1)
vote be cast with respect to any Lot owned by a Class A Member.
ARTICLE V
PROPERTY RIGHTS
Section 1. Member's Easements of Enjoyment. The Declarant and every Member shall
have a right and easement of enjoyment in and to the Common Area, and such easement shall be
appurtenant to and shall pass with the title to every Lot, subject to:
A. the right of the Association to charge reasonable admission and other fees
for the use of any recreational facility located on the Common Area;
B. the right of the Association to limit the number of guests of Members on the
Common Area;
C. the right of the Association to adopt and enforce rules and regulations
governing the use of the Common Area and Common Facilities, including, without limitation, the
imposition of charges for the violation thereof;
8
D. the right of the Association to suspend the voting rights,the right to run for
office within the Association, and rights of a Member to the use of any recreational facilities or
nonessential services offered by the Association, to the extent that access to the Member's Lot
through the Common Area is not precluded, for any period during which any assessment against
such Member's Lot remains unpaid or for a period not to exceed sixty(60) days for any infraction
of its published rules and regulations;
E. the right of the Association to borrow money for the improvement,
maintenance or repair of the Common Area or Common Facilities and in aid thereof, with the
assent of at least two-thirds (2/3) of the votes of each class of Members who are entitled to vote
and who are voting in person or by proxy at a meeting duly called for this purpose at which a
quorum is present,to mortgage the Common Area, subject to this Declaration and the easement of
enjoyment created hereby, and to acquire property encumbered by a lien or liens of a mortgage or
deed of trust;provided that any such mortgage of the Common Area must state that it is subject to
this Declaration and the easement of enjoyment created hereby and shall not be in conflict with its
designation as "open space";
F. the right of the Association at any time, or upon dissolution of the
Association, and consistent with the then-existing zoning ordinances of the County and its
designation of the Common Area as "open space", to dedicate or transfer all or any part of the
Common Area to an organization conceived and organized to own and maintain common open
space, or, if such organization will not accept such a transfer, then to the Board of Supervisors of
the County or other appropriate governmental agency, or, if such a transfer is declined, then to
another entity in accordance with the laws governing the same, for such purposes and subject to
conditions as may be agreed to by the Members. Except in the case of dissolution, any such
dedication or transfer shall have the assent of at least two-thirds (2/3) of each class of Members
entitled to vote and who are voting in person or by proxy at a meeting duly called for this purpose
at which a quorum is present, written notice of which shall be sent to all Members not less than
twenty-five (25) days nor more than fifty (50) days in advance of the meeting setting forth the
purpose of the meeting. Upon such assent and in accordance therewith, the officers of the
Association shall execute the necessary documents. The resubdivision or adjustment of the
boundary lines of the Common Area and the granting of easements by the Association shall not be
deemed a transfer within the meaning of this Article;
G. the right of the Association to grant, with or without payment to the
Association, licenses, rights-of-way and easements through or over any portion of the Common
Area. The foregoing shall not be construed, however, to permit acquisition of or damage to any
improvements, structures or installations located upon the Common Area without the payment of
damages, including severance or resulting damages, if any, to the Association absent the
Association's consent;
H. the right of the Association to lease the Common Area; and
I. the right of the Declarant or, following the Declarant Control Period, the
Association to resubdivide and/or adjust the boundary lines of the Common Area as any deem
necessary for the orderly development of the subdivision.
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Section 2. Delegation of Use. Any Member may delegate its right of enjoyment to the
Common Area and Common Facilities to the members of its immediate household, its tenants or
contract purchasers who reside on the Member's Lot. However, by accepting a deed to such Lot,
every Owner covenants that should the Owner desire to rent its Lot, the rental agreement shall
contain specific conditions which require the tenant to abide by all Association covenants, rules
and regulations, and any Owner desiring to rent a Lot further covenants that the tenant will be
provided a complete set of all Association covenants, rules and regulations. Furthermore, any
lease or sublease shall, whether or not expressly set forth therein, be deemed to contain the
foregoing covenant.
ARTICLE VI
POWERS AND DUTIES OF THE ASSOCIATION
Section 1. Discretionary Powers and Duties. The Board of Directors, on behalf of the
Association, shall have all powers for the conduct of the affairs of the Association which are
enabled by law and not specifically reserved to Members or the Declarant,including but not limited
to the following powers and duties, which may be exercised in its discretion:
A. to enforce any covenants or restrictions which are imposed by the terms of
this Declaration or which may be imposed on any part of the Property. Nothing contained herein
shall be deemed to prevent the Owner of any Lot from enforcing any building restriction in its own
name. The right of enforcement shall not serve to prevent such changes, releases or modifications
of the restriction or reservations placed upon any part of the Property by any party having the right
to make such changes, releases or modifications in the deeds, contracts, declarations or plats in
which such restrictions and reservations are set forth; and the right of enforcement shall not have
the effect of preventing the assignment of those rights by the proper parties wherever and whenever
such right of assignment exists. Neither the Association nor the Board shall have a duty to enforce
the covenants by an action at law or in equity if, in its or their opinion, such an enforcement is not
in the Association's best interest. The expenses and costs of any enforcement proceedings shall be
paid out of the general fund of the Association as herein provided for; provided,however,that the
foregoing authorization to use the general fund for such enforcement proceedings shall not
preclude the Association from collecting such costs from the offending Owner;
B. to provide such light as the Association may deem advisable on streets and
the Common Area and to maintain any and all Common Facilities which may exist or be erected
from time to time on the Common Area;
C. to build and operate Common Facilities upon the Common Area;
D. to use the Common Area and Common Facilities erected thereon, subject to
the general rules and regulations established and prescribed by the Association and subject to the
establishment of charges for their use;
E. to mow and resow the grass and to care for, spray, trim, protect, plant and
replant trees, shrubs and other landscaping on the Common Area and to pick up and remove from
10
the Common Area all loose material,rubbish, filth and accumulation of debris; and to do any other
thing necessary or desirable in the judgment of the Association to keep the Common Area in neat
appearance and in good order;
F. to exercise all rights,responsibilities and control over any easements which
the Association may from time to time acquire, including but not limited to those easements
specifically reserved to the Association in the Article hereof entitled "Easements";
G. to create, grant and convey easements and licenses upon, across, over and
under all Common Area, including but not limited to easements for the installation,replacement,
repair and maintenance of utility lines serving the Property;
H. to create subsidiary corporations and other entities in accordance with
Virginia law;
I. to employ counsel and institute and prosecute such suits as the Association
may deem necessary or advisable, and to defend suits brought against the Association;
J. to retain, as an independent contractor or employee, a manager of the
Association and such other employees or independent contractors as the Board deems necessary,
and to prescribe the duties of employees and scope of services of independent contractors;
K. to enter(or have the Association's agents or employees enter)on any Lot to
perform emergency repairs or to do other work reasonably necessary for the proper maintenance
or protection of the Property;
L. to enter(or have the Association's agents or employees enter)on any Lot to
repair,maintain or restore the Lot,all improvements thereon, and the exterior of the Dwelling Unit
and any other improvements located thereon if such is not performed by the Owner of the Lot, and
to assess the Owner of the Lot the costs thereof, such assessment to be a lien upon the Lot equal
in priority to the lien provided for in the Article and Section hereof titled "ASSESSMENTS.
Creation of the Lien and Personal Obligation of Assessments"; provided,however, that the Board
shall only exercise this right after giving the Owner written notice of its intent at least fourteen
(14) days prior to such entry;
M. to resubdivide and/or adjust the boundary lines of the Common Area but
only to the extent such resubdivision or adjustment does not contravene the requirements of zoning
and other ordinances applicable to the Property;
N. to adopt,publish and enforce rules and regulations governing the use of the
Common Area and Common Facilities and with respect to such other areas of responsibility
assigned to it by this Declaration, except where expressly reserved herein to the Members. Such
rules and regulations may grant to the Board the power to suspend a Member's voting rights and
the Member's right to use Common Facilities or non-essential services for non-payment of
assessments and to assess charges against Members for violations of the provisions of the
11
410 10111)
Declaration or rules and regulations, as provided for in the Virginia Property Owners' Association
Act;
O. to declare the office of a member of the Board vacant in the event such
member shall be absent from three(3) consecutive regular meetings of the Board;
P. to enter into contracts on behalf of all Owners and Lots for the routine pick-
up and disposal of trash and debris,the cost of which contract shall be subject to the imposition of
assessments; and
Q. to grant and convey or dedicate portions of the Common Area for public
use, including without limitation, for public street purposes.
Section 2. Mandatory Powers and Duties. The Association shall exercise the following
powers,rights and duties:
A. to accept title to the Common Area and to hold and administer the Common
Area for the benefit and enjoyment of the Owners and occupiers of Lots, and to cause the Common
Area and Common Facilities to be maintained in accordance with the standards adopted by the
Board;
B. to transfer part of the Common Area to or at the direction of the Declarant,
for the purpose of adjusting boundary lines or otherwise in connection with the orderly subdivision
or development of the Property, but only to the extent such resubdivision or adjustment does not
contravene the requirements of zoning and other ordinances applicable to the Property;
C. after the termination of the Class B membership, to obtain and maintain,
without interruption, liability coverage for any claim against a director or officer for the exercise
of its duties and fidelity coverage against dishonest acts on the part of directors, officers, trustees,
managers, employees or agents responsible for handling funds collected and held for the benefit
of the Association. The fidelity bond shall cover the maximum funds that will be in the custody
of the Association or its management agent at any time while the bond is in place. The fidelity
bond coverage shall, at a minimum, be equal to the sum of three (3) months' Annual Assessment
of all Lots in the Property plus the Association's reserve funds, if any;
D. to obtain and maintain without interruption a comprehensive coverage of
public liability and hazard insurance covering the Common Area and easements of which the
Association is a beneficiary, if available at reasonable cost. Such insurance policy shall contain a
severability of interest clause or endorsement which shall preclude the insurer from denying the
claim of an Owner because of negligent acts of the Association or other Owners. The scope of
coverage shall include all coverage in kinds and amounts commonly obtained with regard to
projects similar in construction, location and use. Further, the public liability insurance must
provide coverage of at least One Million Dollars ($1,000,000.00) for bodily injury and property
damage for any single occurrence;
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E. to provide for the maintenance of any and all (i) Common Facilities which
may exist or be erected from time to time on the Common Area, including but not limited to street
lights (including the payment of utility costs therefor), recreational facilities, entrance ways and
entrance areas, (ii) easement areas of which the Association is the beneficiary and for which it has
the maintenance responsibility, (iii) facilities, including but not limited to fences and signs
authorized by the Association and erected on any easements granted to the Association, and (iv)
street lights that may be constructed within the rights-of-way of any public streets within or
adjacent to the Property and which the Commonwealth of Virginia or the local governmental
authorities requires the Association to maintain(including the payment of utility costs therefor);
F. to pay all proper bills, taxes, charges and fees for which the Association is
responsible under this Declaration on a timely basis; and
G. to maintain its corporate status.
ARTICLE VII
ASSESSMENTS
Section 1. Creation of the Lien and Personal Obligation of Assessments. Each Owner of
any Lot(but not the Declarant, the Association, or any Builders)by acceptance of a deed therefor,
whether or not it shall be so expressed in any such deed or other instrument of conveyance, is
deemed to covenant and agree to pay to the Association: (a) Annual General Assessments (as
hereinafter defined), (b) Annual Service Assessments (as hereinafter defined), (c) Special
Assessments (as hereinafter defined) for capital improvements or other specified items, (d)
Restoration Assessments (as hereinafter defined), and (e) an Initial Assessment (as hereinafter
defined). Such assessments are to be established and collected as hereinafter provided. The
Association's Annual, Special, Restoration and Initial Assessments, together with interest thereon
and costs of collection thereof, as hereinafter provided, shall be a charge on the Lot and shall be a
continuing lien upon the Lot against which each assessment is made. Each such assessment,
together with interest, late fees, costs, and reasonable attorneys' fees, shall also be the personal
obligation of the person who was the Owner of such Lot at the time the assessment fell due and
shall not be the personal obligation of a successor in interest unless expressly assumed by such
successor. The Annual, Special, and Restoration Assessments, when assessed for each year, shall
become a lien on the Lot in the amount of the entire Annual, Special, or Restoration Assessment,
but shall be payable in equal installments collected on a monthly, bi-monthly, quarterly, semi-
annual or annual basis as determined upon resolution of the Board.
Section 2. Purpose of Assessment. The assessments levied by the Association shall be
used to promote the recreation, health, safety and welfare of the residents and Owners of the
Property; for the administration of the Association; for the enforcement of the provisions of the
Declaration, or any other Association document, including but not limited to management, legal
and accounting services; for the improvement and maintenance of the Common Area, including
but not limited to the payment of taxes,construction of improvements and maintenance of services
and facilities devoted to these purposes or related to the use and enjoyment of the Common Area
(including, but not limited to, storm water management and storm drainage facilities and
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411100 1100
easements) or other property which the Association has the obligation to maintain; and, for such
other purposes as the Board may determine to be appropriate.
Section 3. Annual Assessments.
A. The Association must levy in each of its fiscal years an annual general
assessment (the "Annual General Assessment") against each Lot. The amount of such Annual
General Assessment shall be established by the Board and written notice of such shall be sent to
every Owner at least thirty (30) days in advance of the commencement of each Annual General
Assessment period. The Annual General Assessment shall become applicable as to a Lot at such
time as an occupancy permit is issued for such Lot. The first Annual General Assessment shall be
adjusted according to the number of months remaining in the calendar year.
B. The amount of the Annual General Assessment shall be determined by the
Board according to its estimate of the cost of providing services or rights of use which are common
to all of the Lots.
C. The Association may also, but shall not be required to, levy in each of its
fiscal years a separate annual assessment (the "Annual Service Assessment") against specific
Lots within the Property. The amount of the Annual Service Assessment shall be determined by
the Board for specified Lots constituting an Annual Service Assessment group ("Annual Service
Group") according to its estimated cost of providing services, reserves or rights of use specific to
Lots within an Annual Service Group, which services or rights are not enjoyed by all of the
Members and are primarily for the benefit of the Members owning a Lot within an Annual Service
Group. The amount of an Annual Service Assessment shall be the same for each Lot within an
Annual Service Group,but need not be uniform with any other Annual Service Assessment,if any,
imposed upon any other Lot within any other Annual Service Group.
Section 4. Special Assessment. In addition to the Annual Assessments authorized above,
the Association may levy,in any assessment year, a special assessment applicable to that year only
for the purpose of defraying,in whole or in part,the cost of any construction,reconstruction,repair
or replacement of capital improvements upon the Common Area or Common Facilities, including
the fixtures and personal property related thereto, or for any other specified purpose(the "Special
Assessment"). The Special Assessment shall be levied against all of the Lots within the portions
of the Property so benefiting, pro rata according the degree of benefit received by each Lot
("Special Assessment Group"). The amount of the Special Assessment shall be the same for
each Lot within a Special Assessment Group,but need not be uniform with the Special Assessment
imposed on Lots within other portions of the Property. To be effective, any such assessment shall
have the assent of more than two-thirds (2/3) of the votes of each class of Members within the
affected portions of the Property,who are entitled to vote and who are voting in person or by proxy
at a meeting duly called for this purpose at which a quorum is present, written notice of which
setting forth the purpose of the meeting shall be sent to all Members and the Declarant not less
than thirty(30) days nor more than sixty(60) days in advance of the meeting.
Section 5. Restoration Assessment. The Association may levy and impose an Assessment
upon any Lot for any charges incurred by the Association related to action taken to bring a Lot
14
into compliance with the provisions of this Declaration, or any other Association document, due
to the failure of an Owner to maintain a Lot in accordance therewith, or the enforcement of any
applicable laws of any governmental authority, as more particularly set forth in this Declaration
(each, a "Restoration Assessment"). Written notice specifying(i) the amount of the Restoration
Assessment due, and (ii) the number and amounts of the installments by which such Restoration
Assessment is to be paid, shall be given to the Owner of each Lot subject thereto.
Section 6. Quorum for any Action Authorized Under Special Assessment Provision. At
the first calling of a meeting under the Article and Section hereof titled, "ASSESSMENTS. Special
Assessment", the presence at the meeting of Members or proxies entitled to cast sixty percent
(60%)of all the votes of each class of Members shall constitute a quorum. If the required quorum
does not exist at any such meeting, another meeting may be called subject to the notice
requirements set forth in said "Special Assessment"Section herein, and to applicable law, and the
required quorum at any such subsequent meeting shall be one-half(1/2) of the required quorum at
the preceding meeting. No such subsequent meeting shall be held more than sixty (60) days
following the preceding meeting.
Section 7. Initial Assessment. Each initial purchaser of a Lot(but not including a Builder,
the Association or the Declarant) shall pay to the Association at settlement an initial assessment
(the "Initial Assessment") equal to [INSERT DOLLAR AMOUNT]. The Declarant, the
Association, and the Builders,however, shall not be required to pay any Initial Assessment on the
Lots they own. Such funds may also be used for certain prepaid items, equipment, supplies,
organizational costs, start-up costs, operating expenses or other costs as the Board of Directors
may determine.
Section 8. Rate of Assessment. The Annual General Assessment shall be fixed at a
uniform rate for all Lots, and the Annual Service Assessments and Special Assessments shall be
fixed at a uniform rate for all Lots within each assessment group (but may be a different amount
for Lots within different groups). Any Lots owned by the Declarant or a Builder shall be exempt
from assessment.
Section 9. Notice of Assessment and Certificate. Written notice of the Annual General
Assessments shall be sent to every Member and written notice of the Annual Service Assessments
shall be sent to every Member for which such Annual Service Assessment is applicable. The due
dates for payment of the Annual Assessments shall be established by the Board. The Association
shall, upon demand at any time, furnish a certificate in writing signed by an officer or authorized
agent of the Association setting forth whether the assessments on a specified Lot have been paid.
A reasonable charge may be made by the Board for the issuance of these certificates. Such
certificates shall be conclusive evidence of payment of any assessment therein stated to have been
paid.
Section 10. Remedies of the Association in the Event of Default. If any assessment
pursuant to this Declaration is not paid within thirty (30) days after its due date, the assessment
shall bear interest from the date of delinquency at the higher of: (i) twelve percent (12%) per
annum,or(ii)the judgment rate provided for in the Code of Virginia. In addition,in its discretion,
the Association may:
15
A. impose a penalty or late charge as previously established by rule;
B. bring an action at law against the Owner personally obligated to pay the
same and/or foreclose the lien against the Lot, and interest, costs and reasonable attorneys' fees of
any such action shall be added to the amount of such assessment. A suit to recover a money
judgment for nonpayment of any assessment levied pursuant to this Declaration,or any installment
thereof,may be maintained without perfecting, foreclosing or waiving the lien provided for herein
to secure the same;
C. suspend a Member's voting rights, right to hold an office within the
Association, and right to use Common Facilities or nonessential services offered by the
Association to the extent that access to the Member's Lot through the Common Area is not
precluded. No assessment shall be refunded in the event of suspension; and
D. accelerate the due date of the unpaid assessment so that the entire balance
shall become due,payable and collectible; and
E. levy and impose a Restoration Assessment.
No Owner may waive or otherwise escape liability for the assessments provided for herein
by non-use of the Common Area or Common Facilities, abandonment of its Lot, or the failure of
the Association or the Board to perform their duties.
Section 11. Subordination of the Lien to Mortgages. The lien of the assessments provided
for herein shall be subordinate to the lien of any properly recorded first trust or mortgage if such
first trust or mortgage was recorded before the delinquent assessment was due. Sale or transfer of
any Lot shall not affect the assessment lien. However, the sale or transfer of any Lot pursuant to
a foreclosure of a first trust or mortgage, or any conveyance in lieu thereof, shall extinguish the
lien of such assessments as to payment thereof which became due prior to such sale or transfer.
No such sale or transfer shall relieve such Lot from liability for or the lien of any assessments
which thereafter become due or from the lien thereof.
Section 12. Exempt Property. Notwithstanding any other provision contained in this
Declaration, the following property subject to this Declaration shall be exempt from the
assessments created herein: (a) all property dedicated to and accepted by a local public authority;
(b) the Common Area (including without limitation all areas platted as Open Space in the Villas
at Belvedere Subdivision); however, no land or improvements devoted to dwelling use shall be
exempt from said assessments; and (c) any and all Lots and/or other property owned by the
Declarant, Additional Declarant, the Association, or a Builder.
ARTICLE VIII
ARCHITECTURAL REVIEW BOARD
Section 1. Composition. The ARB shall be comprised of three (3) or more members (but
always an odd number of members). Members shall serve staggered three (3) year terms as
16
Said
determined by the Board. As long as the Declarant or a Builder owns any Lot within the Property,
the ARB shall consist of two (2) committees (the "Committees"): the New Construction
Committee and the Modification and Change Committee. Each committee shall be comprised of
three (3) or more members. When neither the Declarant nor a Builder owns a Lot within the
Property, the New Construction Committee shall be terminated. Actions by the ARB and the
Committees shall be by majority consent of the members.
Section 2. Method of Selection. The Declarant shall appoint the persons to serve on the
New Construction Committee. The Board shall appoint the persons to serve on the Modification
and Change Committee. After the termination of the Class B membership, no member of the
Modification and Change Committee may be a Director. The Declarant may assign its rights under
this Article to a Declarant or non-Declarant by a written assignment. A person may serve on the
ARB and on both the New Construction Committee and the Modification and Change Committee.
Section 3. Removal and Vacancies. Members of the Modification and Change Committee
of the ARB may be removed by the Board at any time with or without cause. Appointments to fill
vacancies in unexpired terms shall be made in the same manner as the original appointment. The
Declarant may remove any member of the New Construction Committee at any time, with or
without cause.
Section 4. Officers. At the first meeting of the Modification and Change Committee of
the ARB following each annual meeting of Members, the Modification and Change Committee
shall elect from among themselves a chairperson, a vice-chairperson and a secretary who shall
perform the usual duties of their respective offices.
Section 5. Duties. The Committees of the ARB shall regulate the external design and
appearance of the Property and the external design, appearance and location of the improvements
thereon in such a manner so as to preserve and enhance property values and to maintain
harmonious relationships among structures and the natural vegetation and topography. During the
period the ARB is comprised of the two (2) committees described above, the New Construction
Committee shall regulate all initial construction, development or improvements on the Property.
The Modification and Change Committee shall regulate all modifications and changes to existing
improvements on the Property. In furtherance thereof, the ARB shall:
A. through the appropriate Committee, review and approve or disapprove
written applications of Owners for proposed improvements, alterations or additions to Lots
(approval by a Committee shall be deemed to be approval by the ARB);
B. periodically inspect the Property for compliance with adopted, written
architectural standards and approved plans for alteration;
C. adopt and publish architectural standards subject to the confirmation of the
Board; these standards shall include, at a minimum, provisions that (1) the same model of home
with the same exterior elevation may not be built on adjacent lots, (2) no vinyl siding shall be
permitted on the homes, and (3) the homes shall be consistent and compatible in design, but may
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41110
have front elevations of brick, stone or cementitious siding and may vary in the use of porches,
shutters, gables or other design features;
D. adopt procedures for the exercise of its duties and conduct its proceedings
in accordance with Roberts Rules of Order - Revised, subject to such written amendments as the
ARB shall enact, from time to time; and
E. maintain complete and accurate records of all actions taken by the ARB and
the Committees.
Approval by the ARB of a correctly filed application shall not be deemed to be an approval by
applicable governmental authorities nor a waiver of the applicant's obligation to obtain any
required governmental approvals or to comply with applicable local ordinances or a representation
or warranty by the ARB or the Association as to the fitness of a proposed structure or its
compliance with applicable building codes or local ordinances.
Section 6. Applications for Improvements or Alterations. Prior to construction or
installation of any improvement, addition or alteration of a Lot or Structure, a written application
("Application") must be filed with, and written approval obtained from, the ARB. Applications
shall include plans and specifications, including, but not limited to, design, elevation views,
material, shape,height,color and texture, and a site plan and/or house location survey showing the
location of all improvements with grading and drainage modifications. Applications must be
submitted by Registered or Certified Mail, Return Receipt Requested, to the ARB. The ARB
reserves the right to require any additional information it deems reasonably necessary in order to
properly process and assess any Application. The ARB reserves the right to deny any Application
which may result in a negative impact on surrounding areas. Owners are solely responsible for
determining the necessity of, and obtaining the approval of, any appropriate authority or
governmental agency, including obtaining any necessary construction permits, prior to
construction or installation of any improvement, addition or alteration of a Lot or Structure.
Section 7. Failure to Act. In the event the ARB(acting through the appropriate Committee)
fails to approve or disapprove a correctly filed Application within sixty(60) days of the receipt of
an Application sent by Registered Mail or Certified Mail-Return Receipt Requested, approval by
the ARB shall be deemed granted, except for those applications for uses, additions or alterations
prohibited by this Declaration or the architectural standards adopted by the ARB, in which case no
disapproval is necessary to uphold the prohibition. Failure of the ARB or the Board to enforce the
architectural standards or to notify an Owner of noncompliance with architectural standards or
approved plans for any period of time shall not constitute a waiver by the ARB or the Board of the
enforcement of this Declaration at any later date.
Section 8. Enforcement. Any exterior improvement, addition, change or alteration made
without application to, and approval of, the ARB shall be deemed to be in violation of these
covenants and may be required by the Board to be restored to its original condition at the offending
Owner's sole cost and expense.
Section 9. Appeal. Any aggrieved party may appeal a decision of the ARB to the Board
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by giving written notice of such appeal to the Association or any director within twenty(20) days
of the adverse ruling,which appeal must be submitted by Registered Mail or Certified Mail-Return
Receipt Requested.
ARTICLE IX
RESTRICTIVE COVENANTS
Section 1. Use. The Property shall be used exclusively for residential purposes except as
provided in the Article and Section hereof titled, "RESTRICTIVE COVENANTS. Declarant's
Activities", and except for facilities operated by the Association. The Declarant reserves the right
pursuant to a recorded subdivision or resubdivision plat, to alter, amend, and change any lot line
or subdivision plan or plat.. No building shall be erected, altered, placed or permitted to remain
on any Lot other than one Dwelling Unit and appurtenant structures, approved by the ARB and
appropriate governmental authorities, for use solely by the occupant of the Dwelling Unit.
Section 2. Maintenance. An Owner shall, at all times, maintain its property and all
appurtenances thereto in good repair and in a state of neat appearance.
A. Structure Exteriors. The exteriors of all Structures shall be kept in good
maintenance and repair. No Structure shall be permitted to stand with its exterior in an unfinished
condition for longer than six (6)months after the commencement of construction. In the event of
fire, windstorm or other damage, the exterior of a Structure shall not be permitted to remain in a
damaged condition for longer than three (3) months, unless expressly permitted in writing by the
Board or the Declarant.
B. Vegetation. All grassy areas of a lawn shall be kept mowed and shall not
be permitted to grow beyond a reasonable height.
C. Sight Lines. No fence, wall, tree, hedge or shrub shall be maintained in
such a manner as to obstruct sight lines for vehicular traffic.
D. Removal of Trees. Except as required for proper vehicular sight lines, no
tree with a diameter greater than four inches (4") measured two feet (2') above ground level shall
be removed without the approval of the ARB.
E. Water Drainage. All natural water drainage patterns or swales of a Lot shall
be properly maintained and preserved so as to not impede or alter the natural drainage patterns
and/or swales of a Lot, or which causes the discharge or diversion of water onto neighboring Lots
or the Common Area, unless satisfactory alternates approved in writing by the ARB have been
provided.
Section 3. Nuisance. No noxious or offensive activity shall be carried on upon the
Property, nor shall anything be done or placed thereon which is or may become an annoyance or
nuisance to the neighborhood.
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A. Animals. No domesticated or wild animal shall be kept or maintained on
any Lot, except for common household pets such as dogs and cats which may be kept or
maintained, provided that they are not kept, bred or maintained for commercial purposes and do
not create a nuisance or annoyance to surrounding Lots or the neighborhood and are kept in
compliance with applicable governmental ordinances. Law enforcement and animal control
personnel shall have the right to enter the Property to enforce local animal control ordinances.
B. Utilities. All telephone, electric and other utility lines shall be installed and
located underground, unless otherwise approved by the ARB.
C. Lighting. No exterior lighting on a Lot shall be directed outside the
boundaries of the Lot. Exterior lighting which results in an adverse visual impact to adjacent Lots,
whether by location, wattage or other features, is prohibited. The ARB shall have the right to
determine whether or not exterior lighting results in an adverse visual impact, which decision may
be appealed to the Board.
D. Laundry. No clothing, laundry or wash shall be aired or dried on any
portion of the Property within public view.
E. Trash. Trash shall be collected and stored in trash receptacles only and not
solely in plastic bags. Trash and garbage receptacles shall not be permitted to remain in public
view, except on days of trash collection, and except those receptacles designed for trash
accumulation located in the Common Area. No accumulation or storage of litter, new or used
building materials, or trash of any kind shall be permitted on the exterior of any Dwelling Unit.
The Association shall have the right, upon seven (7) days' notice, to remove from a Lot, at a Lot
Owner's sole expense and cost, any trash or debris it deems detrimental to the health and/or overall
character of the Property.
F. Vehicles. No inoperable, junk, unregistered, unlicensed or uninspected
vehicle shall be kept on the Property. No portion of the Property shall be used for the repair of a
vehicle. No vehicles shall be parked on any Lot except within a garage or on an improved driveway
or parking area.
G. Commercial Vehicles. No commercial or industrial vehicle, such as but not
limited to moving vans, trucks, tractors, trailers, vans, wreckers, tow trucks, hearses and buses,
shall be regularly or habitually parked or parked overnight on the Property, except upon the prior
written approval of the ARB.
H. Recreational Vehicles. No recreational vehicles or equipment, such as but
not limited to boats, boating equipment, personal watercraft (e.g. jet skis), travel trailers, horse
trailers, camping vehicles or camping equipment shall be parked on the Property without the prior,
written approval of the ARB, as to location, size, screening and other relevant criteria. The
Association shall not be required to provide a storage area for these vehicles.
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I. Towing. The Association shall have the right to tow any vehicle parked or
kept in violation of the covenants contained within this Article, upon twenty-four (24) hours'
written notice and at the vehicle owner's sole expense.
J. Construction Debris. During construction of improvements on any Lot,the
Owner shall maintain its Lot in an orderly fashion, and shall remove all debris and equipment in a
timely fashion. All roads and pedestrian access ways around the Lot shall be kept free from
equipment, building materials and dirt.
Section 4. Modification. No modification or alteration of any Lot,Structure,or any portion
thereof, shall be made, installed, constructed, erected, placed, altered and/or externally improved
on any Lot or Structure until an Application has been properly filed with, and approved by, the
ARB in accordance with the Article and Section hereof titled, "ARCHITECTURAL REVIEW
BOARD.Applications for Improvements or Alterations",and,if required,proper authority has been
granted by appropriate authorities and,where required, appropriate construction permits obtained.
A. Paint. Approval of the ARB is not required for repainting or re-staining a
Structure or an element of a Structure to match its original color. However,prior written approval
by the ARB is required for color changes to any Structure or portion thereof.
Section 5. Structures. No Structure or addition to a Structure shall be erected, placed,
altered or externally improved on any Lot until an Application has been properly filed with, and
approved by, the ARB in accordance with the Article and Section hereof titled,
"ARCHITECTURAL REVIEW BOARD. Applications for Improvements or Alterations", and, if
required, proper authority has been granted by appropriate authorities and, where required,
appropriate construction permits obtained.
A. Exterior Composition. All Dwelling Unit and/or Structure exteriors shall
first be approved in writing by the ARB.
B. Water Drainage. No Structure shall be erected or built on any Lot which
impedes the natural water drainage patterns or swales of a Lot, or which causes the discharge or
diversion of water onto neighboring Lots or the Common Area, unless satisfactory alternates
approved in writing by the ARB have been provided.
C. Fences. No fence or enclosure shall be erected or built on any Lot until first
approved in writing by the ARB as to location, height, material and design. Any fence or wall
built on any Lot shall be maintained in a proper manner so as not to detract from the value and
desirability of surrounding property. The standards for fences contained herein are in addition to
any laws or ordinances applying to fencing, and do not relieve an Owner from compliance with
such laws and ordinances.
D. Antennae/Satellite Dishes. Standard TV antennas and other over-the-air
reception devices (including satellite dishes) of less than one meter (39 inches) in diameter shall
be permitted, subject to reasonable standards regarding placement, screening, maintenance and
indemnity obligations, which may be adopted by the ARB from time to time, such standards to be
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(id 11141110
in conformity with Federal Communications Commission Regulations (47 CFR 1.4000), as
amended; provided, however, that all such rules relating to antennae and satellite dishes shall not
unreasonably delay installation, interfere with reception or increase the cost. Should any
regulations adopted herein or by the ARB conflict with federal law, such rules as do not conflict
with federal law shall remain in full force and effect.
E. Signage. The only signs permitted on the Property shall be customary home
and address signs and real estate sale or lease signs which have received the prior written approval
of the ARB ("Permitted Signs"). No more than one (1) Permitted Sign shall be displayed to
public view on any Lot, must be less than or equal to two (2) square feet in total surface area, and
shall not be illuminated. All Permitted Signs advertising the property for sale or rent shall be
removed within three (3) days from the date of the conveyance of the Lot or of the execution of
the lease agreement, as applicable. All signage must be in conformance with Zoning
Requirements.
F. Failure to Maintain. In the event an Owner of any Lot shall fail to maintain
such Lot and the improvements situated thereon as provided herein and otherwise in accordance
with the provisions of this Declaration or any Rules and Regulations established from time to time
by the Board of Directors, the Association, after(i) ten days' Notice to the Owner, such notice to
include a description of the action intended to be taken, and(ii) approval by two-thirds vote of the
Board of Directors, shall have the right to enter upon said Lot to correct drainage and to repair,
maintain and restore the Lot and the exterior of the buildings and any other improvements erected
thereon or to correct any violation of this Declaration or any Rules and Regulations. Such right
shall also include the right: (i) to mow the grass thereon; (ii) to remove any debris from the Lot;
(iii)to trim or prune any hedge,or planting that,in the opinion of the Board of Directors,by reason
of its location or height or the manner in which it has been permitted to grow, is detrimental to the
enjoyment of adjoining property or is unattractive in appearance; (iv) to repair or paint any fence
thereon that is out of repair or not in harmony, with respect to design or color, with fencing on
adjacent property, unless the design or color of such fence has been previously approved by the
ARB; and (v) to do any and all things necessary or desirable in the opinion of the Board of
Directors to place such Lot in a neat and attractive condition consistent with the intention of this
Declaration. All costs related to such correction, repair or restoration shall become a Restoration
Assessment upon such Lot and as such shall be regarded as any other assessment with respect to
lien rights of the Association and remedies provided for herein for non-payment.
Section 6. Leases. Any rental agreement for a Dwelling Unit must be subject to the rules
and regulations set forth in this Declaration and in the other Association documents. Every such
rental agreement must include a provision stating that any failure by the tenant, its household
members or guests, to comply with the terms of such Association documents shall be a default
under the rental agreement, and the Owner shall be responsible for enforcing this provision. In the
event any such rental agreement fails to include the covenants set forth in this Declaration, all such
covenants shall be deemed incorporated into the rental agreement.
Section 7. Declarant's Activities. The provisions of this Article shall not apply to the
development of or construction of improvements on the Property by the Declarant or its assigns.
The Declarant and any Builder or their respective assigns may, during their construction and/or
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sales period, erect, maintain and operate real estate sales and construction offices, model homes,
displays,signs and special lighting on any part of the Property and on or in any building or structure
now or hereafter erected thereon.
Section 8. Rules and Regulations. The Association shall have the authority to adopt such
rules and regulations regarding this Article as it may from time to time consider necessary or
appropriate.
ARTICLE X
EASEMENTS
Section 1. Blanket Easements. The Declarant grants, and the Association reserves, a
blanket easement to the Association, its directors, officers, agents and employees, to any manager
employed by or on behalf of the Association, and to all police, fire, ambulance personnel and all
similar persons, to enter upon the Property in the exercise of the functions provided for by this
Declaration, Articles of Incorporation, By-Laws and rules of the Association, and in the event of
emergencies and in the performance of governmental functions.
Section 2. Exercise of Easement Rights. When not an emergency situation or a
governmental function, the rights accompanying the easements provided for in the Article and
Section hereof titled, "EASEMENTS. Blanket Easements", shall be exercised only during
reasonable daylight hours and then, whenever practicable, only after advance notice to, and with
the permission of, any Owner or tenant directly affected.
Section 3. Encroachments. If any improvement on the Property now or hereafter
encroaches on any other portion of the Property by reason of(a) the original construction thereof
by the Declarant or its assigns, which shall include, but not be limited to, any driveway which
encroaches over a Lot's boundary line and draining of rainwater from roofs, (b) deviations within
normal construction tolerances in the maintenance, repair, replacement or reconstruction of any
improvement, or (c) the settling or shifting of any land or improvement, an easement is hereby
granted to the extent of any such encroachment for both the encroachment and its maintenance for
the period of time the encroachment exists. The owner of the encroaching improvement shall also
have an easement for the limited purpose of maintenance of the encroaching improvement. This
easement does not relieve any Owner or any other person from liability for such Owner's or other
person's negligence or willful misconduct.
Section 4. Development. The Declarant, a Builder and their respective agents and
employees shall have a right of ingress and egress over the Common Area as required for
construction on and development of the Property.
Section 5. Utilities. So long as the Declarant or a Builder owns any Lots within the
Property or owns any Additional Property, there is reserved to the Declarant and such Builder a
right to grant non-exclusive easements over any Lot or Common Area for the purposes of
installing, repairing and/or maintaining utility lines of any sort, including but not limited to storm
drains and drainage swales, sanitary sewers, gas lines, electric lines and cables, water lines,
telephone lines, telecommunication lines and cables, and the like, and for any purpose necessary
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4.00
for the Declarant or a Builder or their respective assigns to obtain the release of any bonds posted
with a municipality,governmental agency or regulatory agency,and non-exclusive easements over
the Common Area to any municipal agency or private entity for any other purpose consistent with
the "open space" and/or "recreation" designation thereof
Section 6. Release of Public Improvement Bonds. There is reserved to the Declarant and
Builders an easement and the right to grant and reserve easements or to vacate or terminate
easements across all Lots and Common Area as may be required by any governmental agency or
authority or utility in connection with the release of improvement bonds or the acceptance of public
streets for state maintenance with respect to the Property.
Section 7. Declarant-Retained Easement Rights. Declarant expressly reserves and retains
certain rights with respect to the ability to grant and establish easements.
A. During the Declarant Control Period, there is reserved to the Declarant a
non-exclusive easement over all Lots and the Common Area for the purposes of correcting
drainage, regrading, maintenance, landscaping, mowing and erecting street intersection signs,
directional signs, temporary promotional signs, entrance features, lights and wall features, and for
the purpose of executing any of the powers, rights, or duties granted to or imposed on the
Association herein.
B. Declarant further reserves and retains the right, at any time hereafter, and
from time to time, to grant such easements as may be deemed necessary and/or desirable in
connection with the development or operation of the Property, including without limitation any
easements requested or required by any Public Entity and/or provider of public utilities, including
without limitation, Dominion Power Company and CenturyLink telephone company.
Notwithstanding the foregoing, this retained right to grant easements shall not be utilized in such
a manner that it materially and adversely interferes with the ability of a Member to develop and
utilize its individual Lot for residential purposes,and shall not encroach within any building area(s)
of Lots, in locations shown on the Plat, or as may hereafter be approved by applicable
governmental authorities (provided that any easements granted prior to any revisions to an
approved building area shall not be afted
Section 8. Maintenance of torm Drainage E.sements.
A. The Subdivision royiklis for various easements on, through, over,
under and across such portions of the Lots as depicted thereon and incorporated herein (the
"Easements"), for the installation, construction, reconstruction and inspection of the storm
drainage system. Declarant, and its agents, employees, independent contractors and designees,
shall have all rights and privileges as may be reasonably necessary to the exercise of the foregoing
easements, including, without limitation, a reasonable right of ingress and egress to and from the
Easements over the Lots.
B. The Association shall maintain all drainage easements which have not been
dedicated to public use or otherwise made the responsibility of the local government, an agency
thereof or another third party. Notwithstanding the foregoing, while the Association shall have
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the right to enter on to a Lot for purpose of maintaining the Easements, each Owner shall be
responsible for maintaining such portion of any Easement which may be contained within his or
her Lot.
C. No Owner shall take any action with respect to the Easements that would
interfere or be inconsistent with the use of the Easements by the Association for the purposes
named herein. No walls, fences, barriers, trees, plantings, landscaping or other obstructions shall
be erected or allowed to remain within the Easements so as to interfere with the free flow of storm
water runoff through the Easements, or any portion thereof.
D. If any portion of the Easements is damaged or destroyed by the act or
negligent omission of one Owner,or any of such Owner's tenants,lessees, agents,guests,invitees,
licensees or family members, so as to interfere with the free flow of storm water runoff through
the Easements, then said Owner shall be responsible for damage caused thereby and shall
reimburse the Association, promptly on demand, for all costs and expenses incurred by the
Association in rebuilding and/or repairing the Easements to as good condition as existed prior to
such damage or destruction.
E. Except to the extent expressly provided otherwise herein, all costs
associated with the maintenance, repair, replacement and/or inspection of the Easements shall be
the responsibility of the members of the Association as a Common Facility in accordance with the
Declaration. Any monies required to be reimbursed and/or paid to the Association by any Member
or Owner involving the Easements pursuant to this Declaration which are not paid by such Member
or Owner within ten (10) days of the due date established by the Association shall be collectible
by the Association in the same manner, with the same rights and remedies, as assessments levied
by the Association under the Declaration.
F. All provisions of the Easements,including the benefits and burdens thereof,
shall touch,concern and run with the land, shall inure to the benefit of the Association,the Owners
and the Declarant, and their respective successors and assigns, and shall be binding upon the
Owners and their respective successors, transferees, assigns,heirs and personal representatives.
G. The obligations and liabilities of the Owners hereunder shall apply only
with respect to the period during which each Owner owns an interest in a Lot or Parcel. When an
Owner ceases to own an interest in a Lot or Parcel,the obligations and liabilities thereafter accruing
(but not any accrued and unperformed obligations and liabilities) shall be the obligations and
liabilities of the successor, transferee or assign in ownership or interest of such Owner. The
transferring Owner, however, shall remain liable for all accrued and unperformed obligations and
liabilities existing at the time of transfer.
H. No restriction, condition, obligation or provision of this Declaration, with
regard to the Easements or otherwise, shall be deemed to have been abrogated or waived by reason
of any failure or failures to enforce the same.
Section 9. Private Driveways. All driveways over and across any Lot within the Property
are private, and the construction, maintenance and repair of any such driveway and its facilities is
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the responsibility of each Owner of a Lot benefiting therefrom. The construction, maintenance
and repair of all such driveways shall not be the responsibility of the Association, the County or
the Commonwealth of Virginia.
Section 10. Public Entity Easements. In the event any conflict arises between the terms
and provisions of this Declaration and any easement previously or subsequently granted to a Public
Entity, any such easement to a Public Entity shall prevail over the terms and provisions of this
Declaration.
ARTICLE XI
PARKING
The Board may promulgate such rules and regulations as it deems appropriate to regulate
parking within the Property, which rules and regulations may include, without limitation,
assignment of parking spaces for Owners and/or visitors and the towing of any vehicles parked in
violation of such assignment, in fire lanes and in designated "No Parking" spaces, with no notice
of towing required and at the vehicle owner's sole expense.
ARTICLE XII
RIGHTS OF MORTGAGEES
All Mortgagees shall have the following rights:
Section 1. Notice. A Mortgagee shall be given written notice from the Association of the
following:
A. any condemnation or casualty loss that affects either a material portion of
the Common Area or the Lot that is the security for the indebtedness due the Mortgagee;
B. any default in the performance of any obligation under this Declaration or
related Association documents by the Owner of a Lot that is the security for the indebtedness due
the Mortgagee which is not cured within sixty(60) days after the Owner's receipt of notice of the
default;
C. any lapse, cancellation or material modification of any insurance policy or
fidelity bond maintained by the Association; and
D. any proposed action that would require the consent of a specified percentage
of Mortgagees.
Section 2. Unpaid Assessments. Any Mortgagee, who obtains title to a Lot pursuant to
the remedies provided in its mortgage or deed of trust or foreclosure of the mortgage or deed of
trust or deed in lieu of foreclosure, will not be liable for such Lot's unpaid dues or charges which
accrue prior to the acquisition of title to the Lot by the Mortgagee.
26
Section 3. Books and Records. A Mortgagee shall have the right to examine and copy at
its expense the books and records of the Association during normal business hours and upon
reasonable notice to the Association.
Section 4. Notice by Request. As set forth in this Article, Mortgagees shall have the right,
upon request, to receive notice of(a) the decision of the Owners to abandon, modify or terminate
the current zoning category of the Property as a Planned Residential Development; and (b) any
material amendment to the Declaration, the By-Laws or the Articles of Incorporation.
Section 5. Mortgagee Approval. The approval of any Mortgagee shall be deemed accepted
by the Association in the following forms: (a)written approval; (b) any written waiver of approval
rights; (c) a formal letter stating no objection; or, (d) presumptive approval if a Mortgagee does
not respond within thirty(30) days to any notice sent through the United States Postal Service by
Certified Mail, Return Receipt Requested, provided that the Association receives a U.S. Postal
Service Return Receipt signed by an authorized agent of the Mortgagee confirming receipt of any
such notice by the Mortgagee. Refusal of any notice by a Mortgagee shall in no way affect the
validity of any such notice. Approval of Mortgagees shall be calculated based on one vote for
each first deed of trust held by a Mortgagee.
Section 6. Rights. Provided that improvements have been constructed in the Common
Area and provided that a Mortgagee gives written notice to the Association that it has relied on the
value of the improvements in making a loan on a portion or all of the Property, then such
Mortgagee shall be further entitled to the following rights:
A. Subject to the right of the Declarant to annex additional areas as provided
in the Article hereof titled "GENERAL PROVISIONS", unless at least sixty-seven percent (67%)
of the total allocated votes in the Association and Mortgagees representing at least fifty-one percent
(51%) of those Lots that are subject to mortgages or deeds of trust have given their prior written
approval, the Association shall not:
1. fail to maintain fire and extended coverage insurance on insurable
parts of the Common Area or other Association property on a current replacement cost basis in an
amount not less than one hundred percent (100%) of the insurable value, based on current
replacement costs, not including land value;
2. use hazard insurance proceeds for losses to the Common Area or
other Association property for other than the repair, replacement or reconstruction of such
property;
3. add or amend any material provision of this Declaration or related
Association documents concerning the following:
a. voting rights of any Member;
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b. increases in assessments that raise the previously assessed
amount by more than twenty-five percent (25%), assessment liens, or the priority of assessment
liens;
c. reductions in reserves for maintenance, repair and
replacement of those parts of the Common Area that may be replaced or require maintenance on a
periodic basis by more than twenty-five percent (25%);
d. insurance or fidelity bonds;
e. responsibility for maintenance and repair of the Property;
f. annexation or withdrawal of property to or from the Property
(other than annexation or withdrawal of those properties referred to in the Article hereof titled,
"PROPERTY SUBJECT TO THIS DECLARATION, ANNEXATION AND WITHDRAWAL");
g. imposition of any restriction on the leasing of Dwelling
Units;
h. imposition of any right of first refusal or similar restriction
on the right of an Owner to sell, transfer or otherwise convey its property;
i. restoration or repair of the Property after damage or partial
condemnation;
j. reallocation of interests in the Common Area or rights to its
use, except as provided in the Articles hereof titled "VOTING RIGHTS" and "PROPERTY
RIGHTS" herein;
k. termination of the legal status of the Association after
substantial destruction or condemnation of the subdivision occurs; and
1. any provisions that are for the express benefit of Mortgagees.
4. by act or omission seek to abandon, partition, subdivide, encumber,
sell or transfer the Common Area. The resubdivision and/or adjustment of boundary lines of the
Common Area and the granting of easements by the Association shall not be deemed a transfer or
subdivision within the meaning of this clause.
5. by act or omission waive or abandon any scheme of regulations or
their enforcement pertaining to the architectural design or the exterior appearance of Dwelling
Units and their appurtenances, the exterior maintenance of Dwelling Units and their
appurtenances, the maintenance of the Common Area, common fences and driveways and the
upkeep of lawns and plantings in the Property.
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An addition or amendment to this Declaration or related Association documents shall not
be considered material if it is for the purpose of clarification or correcting errors. A Mortgagee
who receives a written request to approve additions or amendments who does not deliver or post
to the requesting party a negative response within thirty(30) days of receipt of such request shall
be deemed to have approved such request.
B. A Mortgagee may,jointly or singly,pay taxes or other charges which are in
default and which may or have become a charge against the Common Area and may pay overdue
premiums on hazard insurance policies or secure new hazard insurance coverage upon the lapse of
a policy for such Common Area. The Mortgagee making such payments shall be owed immediate
reimbursement therefor from the Association.
C. In the event that there is a condemnation or destruction of the Common Area
or other Association property, to the extent practicable, condemnation or insurance proceeds shall
be used to repair or replace the condemned or destroyed property.
D. Should there be excess insurance or condemnation proceeds after the
renovation, repair or reconstruction called for herein, such excess proceeds may be distributed
equally to the Owners,apportioned equally by Lot;subject,however,to the priority of a Mortgagee
with regard to the proceeds applicable to the Lot securing said Mortgagee and in accordance with
Virginia law.
E. The Association must provide an audited financial statement for the
preceding fiscal year to a Mortgagee upon its written request at the Mortgagee's expense.
F. Eligible Mortgagees representing at least fifty-one percent (51%) of the
votes of the mortgaged Lots must consent to the termination of the legal status of the Association
for reasons other than substantial destruction or condemnation of the Property.
G. The Association shall cause the immediate repair, reconstruction or
renovation of any damage to the Common Area, unless a decision not to repair, reconstruct or
renovate is approved by a majority of the Mortgagees.
ARTICLE XIII
ENFORCEMENT
Section 1. Right to Enforce. As long as the Declarant is continuing in the development of
the Property, the Declarant shall have the sole right to enforce the terms and conditions of this
Declaration, provided that such right may be delegated from time to time, in whole or in part, to
the Association. Following the sale of the last Lot by the Declarant,the Association or any Owner
shall have the right to enforce, by a proceeding at law or in equity, all restrictions, conditions,
covenants, reservations, easements, liens and charges now or hereafter imposed by the provisions
of this Declaration or other Association documents, unless such right is specifically limited.
Furthermore, the Declarant and/or the Association shall have the right to enforce any applicable
laws of any governmental authority upon any Owner or Lot failing to comply with said governing
documents or laws. Failure by the Declarant, the Association, or by any Owner to enforce any
29
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right, provision, covenant or condition which may be granted by this Declaration shall not
constitute a waiver of the right of the Declarant,the Association or an Owner to enforce such right,
provision, covenant or condition in the future. All rights, remedies and privileges granted to the
Declarant, the Association, or any Owner pursuant to any term, provision, covenant or condition
of the Declaration shall be deemed to be cumulative and the exercise of any one or more thereof
shall not be deemed to constitute an election of remedies nor shall it preclude the party exercising
the same from exercising such privileges as may be granted to such party by this Declaration or at
law or in equity. Notwithstanding the foregoing, the right of an Owner to enforce this Declaration
may be terminated or limited upon a written resolution adopted by a vote of at least two-thirds
(2/3rds) of the Board, upon a determination that enforcement related to a specific violation or
violations would not be in the best interest of the Association.
Section 2. Relief. The Declarant, its successors and assigns, and the Association, shall be
entitled to recover any costs, including without limitation attorneys' fees, incurred in connection
with the enforcement of the provisions of this Declaration or any other governing document of the
Association or any applicable laws of any governmental authority upon any Owner or Lot failing
to comply with said governing documents or laws.
Section 3. Payment of Enforcement Expenses. The cost of any expenses arising out of
any enforcement action as set forth in the Article hereof titled, "ENFORCEMENT", including but
not limited to legal services and court fees, may be paid out of the Annual General Assessment
funds collected by the Association. Such costs shall be subject to recovery from any Owner(s)
determined or found to be in violation, in accordance with the provisions of this Declaration, and
shall constitute a lien on such Owner's Lot, as herein provided.
ARTICLE XIV
GENERAL PROVISIONS
Section 1. Severability; Conflict. Invalidation of any one of the provisions of this
Declaration by judgment or court order shall in no way affect any other provision, which shall
remain in full force and effect. In the case of any conflict between the Articles of Incorporation
and this Declaration,the Articles of Incorporation shall control;in the case of any conflict between
this Declaration and the By-Laws, this Declaration shall control. Notwithstanding any provision
in this Declaration or the By-Laws to the contrary, Declarant shall have the right to appoint a
majority of the members of the Board during the Declarant Control Period.
Section 2. Interpretation. The headings used in this Declaration are for reference and
convenience only, and shall not enter into the interpretation of this Declaration and the covenants,
rights and/or obligations expressed herein. All pronouns used herein, whether used in the
masculine, feminine or neuter gender, shall include all other genders. The singular number shall
include the plural, and vice versa, unless the context requires otherwise.
Section 3. Duration. The covenants and restrictions of this Declaration shall run with and
bind the land for a term of twenty(20) years from the date this Declaration is recorded, after which
time the covenants and restrictions of this Declaration shall be automatically extended for
successive periods of twenty(20) years each.
30
Noir' \✓
Section 4. Amendment. During the Declarant Control Period, Declarant may unilaterally
amend this Declaration for any reason by recordation of an amendment to the Declaration among
the Land Records and this Declaration may only be amended during such time with the consent of
the Declarant. Furthermore, during such time, the Declarant is authorized to execute any such
amendment on behalf of the Association. After the Declarant Control Period, the covenants and
restrictions of this Declaration may be amended in whole or in part with the assent of more than
fifty percent (50%) of the votes of the Members. Any amendment must be properly executed and
acknowledged by the Declarant or the Association, as applicable, (in the manner required by law
for the execution and acknowledgment of deeds) and recorded among the Land Records.
Section 5. Waivers by Declarant. The Declarant, as the present most interested party in
maintaining the high quality of development which by these covenants is sought to be assured for
the Property, hereby expressly reserves unto itself(so long as these restrictions are in effect) the
unqualified right to waive or alter from time to time such of the herein contained restrictions as it
may deem best, as to any one or more of the Lots, which waiver or alteration shall be evidenced
by the mutual written consent of the Declarant and the then-Owner of the Lot as to which some or
all of said restrictions are to be waived or altered; such written consent to be duly acknowledged
and recorded among the Land Records.
Section 6. Notices. Any and all notices required to be given hereunder to any interested
party, including Members and Owners, shall be sent, in writing, either by First Class United States
Mail,postage pre-paid,or, at the discretion of the Association,by e-mail or facsimile transmission,
to the address on file with the Association for said interested party. It is the responsibility of all
interested parties to provide the Association with a valid and current address for notice purposes.
Absent receipt of a written notification identifying an address for notice purposes, the street
address of the individual Lot shall serve as the address for notice purposes. Notices shall set forth
the purpose for their issuance, such as the reason for which a meeting has been called or the
necessity of any Assessment levied, and shall contain the date, time and location of the meeting or
occurrence, including the due date of any Assessment levied and any relevant method of appeal.
Notwithstanding the foregoing, Applications and appeals shall be submitted as required in the
Article hereof titled "ARCHITECTURAL REVIEW BOARD".
Section 7. Management Contracts. For such time as the Declarant has Class B membership
status,the Declarant shall have the right to enter into professional management contracts on behalf
of the Association for the management of the Property; provided, however, that in any such
contract entered into by the Declarant, the Association shall have the right to terminate such
contracts,with or without cause,upon thirty(30)days'written notice to the other party and without
payment of a termination fee.
Section 8. Waiver of Negative Reciprocal Covenants. Each Owner, together with any
other person or party that might hereafter claim any interest in the Property or the Additional
Property,irrevocably waives and releases any and all rights to claim a negative reciprocal easement
of any sort over or affecting any property owned by Declarant, including without limitation, the
right to claim that such property is subject to a common scheme of development. While Declarant
currently intends to develop the Property pursuant to the terms and conditions of the existing
31
41110
concept development plan, Declarant reserves the right, subject to applicable zoning and other
governmental regulations, to make such changes and modifications as Declarant desires, in
Declarant's sole discretion. Such changes may include, without limitation, changes in housing
styles, external elevations, building materials, lot layouts, and any other development and/or
construction related matters. Further, without limiting the foregoing, until property is annexed
into the community pursuant to the terms of a Supplementary Declaration, or similar document,
no property identified as Additional Property shall be subject to any of the terms and conditions
of this Declaration.
Section 9. County Approval. Certain provisions are contained within this Declaration to
comply with the conditions of subdivision approval applicable to the property subjected to this
Declaration. No supplementary declaration or amendments shall impair the right and authority of
the County to require compliance with the subdivision approval conditions applicable to the
Property without the prior written approval of the County.
Section 10. Dissolution. The Association shall not be dissolved, except pursuant to a
consolidation or merger with an entity formed for similar purposes, or the Declaration terminated,
without the prior written approval of the County. Upon dissolution of the Association, other than
incident to a merger or consolidation, the assets of the Association, both real and personal, shall
be offered to an appropriate public agency to be devoted to purposes and uses that would most
nearly reflect the purposes and uses to which they were required to be devoted by the Association.
In the event that such offer of dedication is refused, such assets shall be then offered to be granted,
conveyed or assigned to any non-profit corporation, trust or other organization devoted to similar
purposes and in accordance with Virginia law. Any such dedication or transfer of the Common
Area shall not be in conflict with then-governing zoning ordinances or the designation of the
Common Area as "open space".
Section 11. Lender and Trustee Consents. Declarant granted Trustee an interest in the
Property for the benefit of Lender as evidenced by the lien of that certain Amended and Restated
Credit Line Deed of Trust and Security Agreement in the original principal amount of
$2,490,000.00 recorded in the Land Records in Deed Book 4692, page 606 (the "Deed of Trust").
As evidenced by their signatures below, Beneficiary and Trustee join in the execution of this
Declaration to evidence their consent to the Property being subjected to the covenants, conditions
and restrictions set forth herein. Beneficiary and Trustee agree that the Deed of Trust shall be
subordinate to the Declaration. Except as expressly subordinated hereby, the lien of the Deed of
Trust shall remain in full force and effect. Nothing contained herein constitutes a waiver or
modification of any of the other terms of the lien of the Deed of Trust, and, by recording this
Declaration, Declarant acknowledges that nothing contained herein constitutes any other release,
conveyance or grant in connection with any of the Property or the Deed of Trust. Notwithstanding
the foregoing, neither Beneficiary nor Trustee makes any warranty or representation of any kind
or nature concerning the Declaration or any of its terms or provisions, or the legal sufficiency
thereof and disavows any such warranty or representation, it being understood that neither
Beneficiary nor Trustee assumes or shall be responsible for any of the obligations or liability
Declarant contained in the Declaration.
32
End of Declaration;
Signature Pages and Exhibits to Follow.
33
WITNESS the following duly authorized signatures and seals:
FREE STATE PARTNERS, LLC,
a Virginia limited liability company
By:
Name:
Title:
COMMONWEALTH OF VIRGINIA,
COUNTY OF , to wit:
I, the undersigned Notary Public, in and for the jurisdiction aforesaid, do hereby certify
that ,as of Free State Partners, LLC,
whose name is signed to the foregoing Declaration, appeared before me and personally
acknowledged the same in my jurisdiction aforesaid.
GIVEN under my hand and seal this day of , 2016.
My Commission expires:
Notary Public
My notary registration number is
34
*1.1
UNION BANK&TRUST,
a Virginia banking corporation
By:
Name:
Title:
COMMONWEALTH OF VIRGINIA,
COUNTY OF , to wit:
I, the undersigned Notary Public, in and for the jurisdiction aforesaid, do hereby certify
that , as of Union Bank & Trust,
whose name is signed to the foregoing Declaration, appeared before me and personally
acknowledged the same in my jurisdiction aforesaid.
GIVEN under my hand and seal this day of , 2016.
My Commission expires:
Notary Public
My notary registration number is
35
UNION SERVICE CORPORATION, TRUSTEE
a Virginia corporation
By:
Name:
Title:
COMMONWEALTH OF VIRGINIA,
COUNTY OF , to wit:
I, the undersigned Notary Public, in and for the jurisdiction aforesaid, do hereby certify
that , as of Union Service
Corporation, whose name is signed to the foregoing Declaration, appeared before me and
personally acknowledged the same in my jurisdiction aforesaid.
GIVEN under my hand and seal this day of , 2016.
My Commission expires:
Notary Public
My notary registration number is
36
EXHIBIT A
Property
All that certain lot or parcel of land, with the improvements thereon and appurtenances thereto
belonging or in anywise appertaining, situated in Albemarle County, Virginia, containing 7.09
acres, more or less, more particularly described on a plat made by Brian S. Ray, Land Surveyor,
Inc., dated February 2, 2012, and recorded in the Clerk's Office of the Circuit Court of Albemarle
County, Virginia, in Deed Book 4131, pages 192 through 193, and being all of the same property
conveyed to Free State Partners, LLC, a Virginia limited liability company, by deed from Phillip
E. Brown, Sr., and Barbara J. Brown, husband and wife, dated August 13, 2014, and recorded
August 29, 2014 in the aforesaid Clerk's Office in Deed Book 4530, page 216.
37
Nnid
RECORDATION COVER SHEET
TYPE OF INSTRUMENT: DECLARATION OF COVENANTS,
CONDITIONS AND RESTRICTIONS
DATE OF INSTRUMENT: , 2016
NAME OF GRANTOR: FREE STATE PARTNERS, LLC
COUNTY WHERE PROPERTY
LOCATED: ALBEMARLE
BRIEF DESCRIPTION
OF PROPERTY: FREE STATE RUN
PARCEL IDENTIFICATION NOS.: 06200-00-00-00008
PREPARED BY AND RETURN TO: ROYER CARAMANIS &MCDONOUGH, PLC
200-C GARRETT ST.
CHARLOTTESVILLE, VA 22902
riopy
COUNTY OF ALBEMARLE
Department of Community Development
401 McIntire Road, Room 227
Charlottesville, Virginia 22902-4596
Phone (434) 296-5832 Fax(434)972-4126
May 20, 2016
Greg Kamptner
County Attorney's Office
401 McIntire Road
Charlottesville,VA 22902
Regarding:
Project Name:SUB201600018 Free State Run - Final
Date Submitted: 5/5/16
Dear Mr. Kamptner:
The applicant has prepared and submitted a Declaration of Covenants and Restrictions of Open Space
and Landscape Maintenance and Private Street Maintenance for the above named project.The
applicant has identified the sidewalks, open space, private street, and landscaping that require perpetual
maintenance under Section 14-317. At your earliest convenience, please review the documents and the
attached plat.
Thanks,
J.T. Newberry
Planner
Ext. 3270
T
i
i/ \.4011
--Review of fPrivate Improvement Maintenance Instrument
(Albemarle County Code§14-317)
TO: c-7 //lr '- ey —
RE: SUB 2
The instrument required by Albemarle County Code§ 14-317 for this subdivision:
is approved.
is not approved because it fails to satisfy one or more of the fo owing requirements (number refer ces are to
j
Albemarle County Code§ 14-317(A)): (i- ', .� , /',fe.'5 — Grgt7 7 ---..,,- •- P i `j/G?'vim
1. Identify the plat to which the ins trume applies;if the plat has been recorded, the identification shall
include a deed book and page number.
2. State that the improvement will be maintained in perpetuity.
X3. State that the improvement will be maintained to a standard that,at a minimum,ensures that it will
remain in substantially the condition it was in when approved by the county if the improvement was
installed prior to the agent signing the plat or the condition it is to be in when the surety was released
as provided in section 14-436; for a private street, shared driveway,or alley, the instrument also shall
state substantially as follows: "The travelway shall at all times be maintained so that it is safe and
convenient for passenger automobiles and emergency vehicles at all times except in severe temporary
weather conditions."
4. If the instrument pertains to the maintenance of one or more private streets,alleys or shared
driveways,it shall define"maintenance"by stating substantially as follows: "For purposes of this
instrument, `maintenance'includes the maintenance of the private streets or alleys,and all curbs,
curbs and gutters,drainage facilities,utilities,dams,bridges and other private street improvements,
and the prompt removal of snow,water, debris, or any other obstruction so as to keep the private
street or alley reasonably open for usage by all vehicles,including emergency services vehicles."
Xp5. Describe the condition of the improvement when it was approved by the county if the improvement
was installed prior to the agent signing the plat or the condition it is to be in when the surety was
�
J released as provided in section 14-436.
/v 6. Identify the timing or conditions warranting maintenance of the improvement.
!ll���V7. State a means to collect funds necessary for the cost of maintaining the improvement;at a minimum,
the means stated shall include the right of any landowner subject to the instrument to record a lien
against a non-contributing landowner, to bring an action at law to collect the funds,or both.
X8. Describe how maintenance costs will be prorated among the landowners subject to the instrument
(e.g., "equally," or on a percentage basis);if any lot within the subdivision may be further divided, the
instrument shall also describe how maintenance costs will be prorated among the landowners after
division.
9. State substantially as follows: "No public agency,including the Virginia Department of
Transportation and the County of Albemarle,Virginia,will be responsible for maintaining any
improvement identified herein."
Date:
Greg Kamptner
Deputy County Attorney
Nkiee
RECORDATION COVER SHEET
TYPE OF INSTRUMENT: DECLARATION OF COVENANTS,
CONDITIONS AND RESTRICTIONS
DATE OF INSTRUMENT: , 2016
NAME OF GRANTOR: FREE STATE PARTNERS, LLC
COUNTY WHERE PROPERTY
LOCATED: ALBEMARLE
BRIEF DESCRIPTION
OF PROPERTY: VILLAS AT BELVEDERE
PARCEL IDENTIFICATION NOS.: 06200-00-00-00008
PREPARED BY AND RETURN TO: ROYER CARAMANIS & MCDONOUGH, PLC
200-C GARRETT ST.
CHARLOTTESVILLE, VA 22902
411.0
TABLE OF CONTENTS
Page
ARTICLE I: DEFINITIONS 2
Section 1. Annual Assessments 2
Section 2. Architectural Character 2
Section 3. ARB 2
Section 4. Assessment 2
Section 5. Association 2
Section 6. Board of Directors 2
Section 7. Builder 2
Section 8. Common Area 2
Section 9. Common Facilities 3
Section 10. County 3
Section 11. Declarant 3
Section 12. Declarant Control Period 3
Section 13. Declaration 3
Section 14. Dwelling Unit 3
Section 15. Free State Partners 3
Section 16. Land Records 3
Section 17. Lot 3
Section 18. Member 4
Section 19. Mortgagee 4
Section 20. Owner 4
Section 21. Property 4
Section 22. Public Entity 4
Section 23. SM Charlottesville 4
Section 24. Structure 4
Section 25. Successor Declarant 4
Section 26. Supplementary Declaration 4
ARTICLE II: PROPERTY SUBJECT TO THIS DECLARATION, ANNEXATION AND
WITHDRAWAL 5
Section 1. The Property 5
Section 2. Annexation without Approval of Class "A" Membership 5
Section 3. Amendment 5
Section 4. Annexation 5
Section 5. Dedication for Public Use 5
Section 6. Withdrawable Real Estate 5
ARTICLE III: MEMBERSHIP 6
ARTICLE IV: VOTING RIGHTS 6
Section 1. Classes 6
Section 2. Annexation 7
Section 3. Multiple Ownership Interests 7
ARTICLE V: PROPERTY RIGHTS 7
Section 1. Member's Easements of Enjoyment 7
Section 2. Delegation of Use 9
ARTICLE VI: POWERS AND DUTIES OF THE ASSOCIATION 9
Section 1. Discretionary Powers and Duties 9
Section 2. Mandatory Powers and Duties 11
ARTICLE VII: ASSESSMENTS 12
Section 1. Creation of the Lien and Personal Obligation of Assessments 12
Section 2. Purpose of Assessment 12
Section 3. Annual Assessments 13
Section 4. Special Assessment 13
Section 5. Restoration Assessment 14
Section 6. Quorum for any Action Authorized Under Special Assessment Provision14
Section 7. Initial Assessment 14
Section 8. Rate of Assessment 14
Section 9. Notice of Assessment and Certificate 14
Section 10. Remedies of the Association in the Event of Default 15
Section 11. Subordination of the Lien to Mortgages 15
Section 12. Exempt Property 15
ARTICLE VIII: ARCHITECTURAL REVIEW BOARD 16
Section 1. Composition 16
Section 2. Method of Selection 16
Section 3. Removal and Vacancies 16
Section 4. Officers 16
Section 5. Duties 16
Section 6. Applications for Improvements or Alterations 17
Section 7. Failure to Act 17
Section 8. Enforcement 18
Section 9. Appeal 18
ARTICLE IX: RESTRICTIVE COVENANTS 18
Section 1. Use 1/
Section 2. Maintenance 18
A. Structure Exteriors 18
B. Vegetation 18
C. Sight Lines 18
D. Removal of Trees 18
E. Water Drainage 18
Section 3. Nuisance 19
A. Animals 19
B. Utilities 19
ii
411010 L
NSF
C. Lighting 19
D. Laundry 19
E. Trash 19
F. Vehicles 19
G. Commercial Vehicles 19
H. Recreational Vehicles 20
I. Towing 20
J. Construction Debris 20
Section 4. Modification 20
A. Paint 20
Section 5. Structures 20
A. Exterior Composition 20
B. Water Drainage 20
C. Fences 20
D. Antennae/Satellite Dishes 21
E. Signage 21
F. Failure to Maintain 21
Section 6. Leases 21
Section 7. Declarant's Activities 22
Section 8. Rules and Regulations 22
ARTICLE X: EASEMENTS 22
Section 1. Blanket Easements 22
Section 2. Exercise of Easement Rights 22
Section 3. Encroachments 22
Section 4. Development 23
Section 5. Utilities 23
Section 6. Release of Public Improvement Bonds 23
Section 7. Declarant-Retained Easement Rights 23
Section 8. Maintenance of Storm Drainage Easements 23
Section 9. Private Driveways 25
Section 10. Public Entity Easements 25
ARTICLE XI: PARKING 25
ARTICLE XII: RIGHTS OF MORTGAGEES 25
Section 1. Notice 25
Section 2. Unpaid Assessments 26
Section 3. Books and Records 26
Section 4. Notice by Request 26
Section 5. Mortgagee Approval 26
Section 6. Rights 26
ARTICLE XIII: ENFORCEMENT 28
Section 1. Right to Enforce 29
Section 2. Relief 29
iii
Section 3. Payment of Enforcement Expenses 29
ARTICLE XIV: GENERAL PROVISIONS 29
Section 1. Severability; Conflict 30
Section 2. Interpretation 30
Section 3. Duration 30
Section 4. Amendment 30
Section 5. Waivers By Declarant 30
Section 6. Notices 30
Section 7. Management Contracts 31
Section 8. Waiver of Negative Reciprocal Covenants 31
Section 9. County Approval 31
Section 10. Dissolution 31
EXHIBIT A - Subject Property 34
iv
I
DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS
of
VILLAS AT BELVEDERE
THIS DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS (the
"Declaration")is made as of ,2016,by FREE STATE PARTNERS,LLC,
a Virginia limited liability company, its successors and assigns (hereinafter referred to as
"Declarant"), and VILLAS AT BELVEDERE HOMEOWNERS ASSOCIATION, INC., a
Virginia non-stock corporation formed pursuant to the Virginia Property Owners' Association Act,
its successors and assigns (hereinafter referred to as the "Association").
RECITALS:
A. As evidenced by that certain deed of bargain and sale dated August 13, 2014, from
Philip E. Brown, Sr., and Barbara J. Brown, husband and wife, to Declarant, which deed was
recorded on August 29, 2014, among the land records (the "Land Records") of Albemarle
County, Virginia (the "County"), in Deed Book 4530, page 216, the Declarant is the owner of
certain real property commonly known as County Tax Map Parcel 06200-00-00-00800 and
consisting of 7.09 acres, more or less, as shown on a plat made by Brian S. Ray, Land Surveyor,
Inc.,dated February 2,2012,and recorded in the Land Records in Deed Book 4131,page 192 (the
"Property").
B. As evidenced by that certain subdivision plat entitled "SUBDIVISION PLAT
LOTS 1 THROUGH 18, 19A, 19B AND 20 THROUGH 27 FREE STATE RUN AND
BOUNDARY LINE ADJUSTMENT PLAT PARCEL X, CONTAINING 0.05 ACRE, A
PORTION OF FREE STATE PARTNERS, LLC PROPERTY TO BE ADDED TO AND
COMBINED WITH THE PROPERTY OF PATRICK AND KRISTINE CAMPBELL LOCATED
ON STATE ROUTE 651 (FREE STATE ROAD) RIO MAGISTERIAL DISTRICT
ALBEMARLE COUNTY, VIRGINIA" dated December 23, 2015, prepared by Roger W. Ray &
Assoc. Inc., and recorded among the Land Records in Deed Book , page , Declarant
subdivided the Property into various Lots(as hereinafter defined), open spaces and other common
facilities.
C. The Declarant desires to create on the Property a residential community which shall
have permanent open spaces and other common facilities for the benefit of the community.
D. The Declarant desires to provide for the preservation of the values of the
community and such other areas as may be subjected to this Declaration, and to provide for the
maintenance of the open spaces and other facilities,and,to this end,declare and publish their intent
to subject the Property to the covenants, conditions, restrictions, easements, charges and liens
hereinafter set forth, it being intended that they shall run with the Property and shall be binding on
1
NS
all persons or entities having or acquiring any right, title or interest in the Property or any part
thereof and shall inure to the benefit of each owner thereof.
E. The Declarant has deemed it desirable for the efficient preservation of the values
of said community to create an association to which shall be delegated and assigned the powers of
owning, maintaining and administering the common areas and facilities, administering and
enforcing the covenants and restrictions made in and pursuant to this Declaration and collecting
and disbursing the assessments and charges hereafter created.
F. The Declarant has incorporated the Association as a non-stock corporation, under
the laws of the Commonwealth of Virginia for the purpose of exercising the functions of the
Association.
NOW, THEREFORE, the Declarant, for and in consideration of the premises and the
covenants contained herein, grants, establishes and conveys to each owner of a Lot(as hereinafter
defined)with the express concurrence of the Association, mutual,non-exclusive rights, privileges
and easements of enjoyment on equal terms and in common with all other owners of Lots in and
to the use of any Common Area and facilities; and further, the Declarant and the Association
declare the Property to be held, transferred, sold, conveyed and occupied subject to the covenants,
conditions, restrictions, reservations, easements, charges and liens hereinafter set forth, which are
for the purpose of protecting the value and desirability of, and shall run with, the Property and be
binding on all parties having any right, title or interest in the Property or any part thereof, their
respective successors and assigns, and shall inure to the benefit of each owner thereof.
ARTICLE I
DEFINITIONS
Section 1. "Additional Declarant" shall mean SM Charlottesville, provided, however,
that SM Charlottesville shall not become the Additional Declarant until such time as it has
purchased at least thirteenene (13) of the Lots from Free State Partners pursuant to a separate
purchase agreement.
Section 2. "Annual Assessments" shall mean the Annual General Assessments (as
hereafter defined in the Article and Section hereof titled, "ASSESSMENTS. Annual Assessments")
and, if applicable, the Annual Service Assessments (as hereafter defined in the aforementioned
"Assessments"Article).
Section 3. "Architectural Character" shall mean the scale,style,design,material,quality
of construction and material, color and/or texture of a Structure (as hereinafter defined in the
Article and Section hereof titled, "DEFINITIONS. Structure").
Section 4. "ARB" shall mean the Architectural Review Board of the Association.
Section 5. "Assessment" shall mean any fee, charge, expense, or other costs assessed
against an Owner or Lot by the Association pursuant to this Declaration.
2
Section 6. "Association" shall mean and refer to Villas at Belvedere Homeowners
Association, Inc., a Virginia non-stock corporation, formed pursuant to the Virginia Property
Owners' Association Act, its successors and assigns.
Section 7. "Board of Directors" or "Board" shall mean and refer to the executive and
administrative entity established by the Articles of Incorporation of the Association as the
governing body of the Association.
Section 8. "Builder" shall mean and refer to any person or entity (other than the
Declarant) who owns at any one time two (2) or more Lots for the purpose of constructing a
Dwelling Unit for sale on each of such Lots.
Section 9. "Common Area" shall mean and refer to any real property (including the
improvements thereto or facilities located thereon) owned by the Association for the common use
and enjoyment of the Members, and shall include any private streets shown on a recorded plat of
the Property and located within the Common Area's boundaries, and shall further include any
easements granted to the Association and/or for the benefit of the residents of the community, at
large.
Section 10. "Common Facilities" shall mean and refer to improvements, structures and
facilities owned and/or operated by the Association(if any)for the common benefit of the Owners,
including without limitation, stormwater management ponds, trails, paths, recreational and
meeting facilities, as well as any other facilities which the Association owns and/or operates.
Section 11. "County" shall mean and refer to Albemarle County, Virginia, and/or, the
proper governmental authorities of Albemarle County, Virginia, as the context may require.
Section 12. "Declarant" shall mean and refer to Free State Partners, any Successor
Declarant, or the Additional Declarant, any of whom may be referred to herein as a Declarant. At
such time as SM Charlottesville becomes the Additional Declarant and through the remainder of
the Declarant Control Period (the "Co-Declarant Period"), Free State Partners and SM
Charlottesville shall act as co-Declarants,and the rights and obligations of the Declarant hereunder
shall be exercised by the two of them jointly and only with the consent of each other, such consent
not to be unreasonably withheld.
Section 13. "Declarant Control Period" shall mean that period of time that commences
with the recordation of this Declaration and ends at such time as neither Declarant nor Additional
Declarant(including Successor Declarant,or other successors pursuant to an Assignment recorded
among the Land Records) owns a Lot.
Section 14. "Declaration" shall mean and refer to this Declaration of Covenants,
Conditions and Restrictions applicable to the Property, which Declaration is recorded in the Land
Records.
Section 15. "Dwelling Unit" shall mean and refer to any improvement to the Property
intended for any type of independent ownership for use and occupancy as a residence by a single
3
',fir
household and shall, unless otherwise specified, include within its meaning (by way of illustration
but not limitation)patio or zero lot line homes.
Section 16. "Free State Partners" shall mean Free State Partners,LLC,a Virginia limited
liability company.
Section 17. "Land Records" shall mean the land records of Albemarle County,
Virginia.
Section 18. "Lot" shall mean and refer to any plot of land created by and shown on the
Plat upon which a Dwelling Unit could be constructed in accordance with applicable zoning
ordinances, with the exception of the Common Area and streets dedicated to public use.
Section 19. "Member" shall mean and refer to every person or entity who holds a
membership in the Association, as more particularly set forth in the Article hereof titled,
"MEMBERSHIP".
Section 20. "Mortgagee" shall mean and refer to any person or entity secured by a first
mortgage or first deed of trust on any Lot or the Common Area who has notified the Association
of this fact in writing by Registered Mail or by Certified Mail-Return Receipt Requested.
Section 21. "Owner" shall mean and refer to the record owner, whether one (1) or more
persons or entities, of the fee simple title to any Lot, but excluding those holding such interest in
a Lot solely by virtue of a contract to purchase a Lot or as security for the performance of an
obligation. If more than one (1) person or entity is the record owner of a Lot, the term "Owner"
as used herein shall mean and refer to such owners collectively, so that there shall be only one (1)
Owner of each Lot.
Section 22. "Plat" shall mean that that certain subdivision plat entitled "SUBDIVISION
PLAT LOTS 1 THROUGH 18, 19A, 19B AND 20 THROUGH 27 FREE STATE RUN AND
BOUNDARY LINE ADJUSTMENT PLAT PARCEL X, CONTAINING 0.05 ACRE, A
PORTION OF FREE STATE PARTNERS, LLC PROPERTY TO BE ADDED TO AND
COMBINED WITH THE PROPERTY OF PATRICK AND KRISTINE CAMPBELL LOCATED
ON STATE ROUTE 651 (FREE STATE ROAD) RIO MAGISTERIAL DISTRICT
ALBEMARLE COUNTY, VIRGINIA" dated December 23, 2015, prepared by Roger W. Ray &
Assoc. Inc., and recorded among the Land Records in Deed Book , page .
Section 23. "Property" shall mean and refer to that certain real property described in the
Article and Section hereof titled, "PROPERTY SUBJECT TO THIS DECLARATION,
ANNEXATION AND WITHDRAWAL. The Property", and further shown on Exhibit A which is
attached hereto and incorporated herein by this reference, and such additions thereto which, from
time to time, may be brought within the jurisdiction of the Association.
Section 24. "Public Entity" shall mean and refer to any governmental entity or agency,
including, without limitation,the Board of Supervisors of Albemarle County, Virginia,the School
Board of Albemarle County,Virginia,the Virginia Department of Transportation,any legislatively
4
created Water and/or Sewer Authority, and similar governmental entities. The phrase "Public
Entity" shall not include charitable,volunteer,or civic organizations,including,without limitation,
churches, volunteer fire departments and rescue squads, and organizations such as the YMCA.
Section 25. "Restricted Lots" means Lot 19A and Lot 19B as the same are shown on the
Plat, and any of the Restricted Lots may be referred to individually as a "Restricted Lot".
Section 26. "SM Charlottesville" shall mean SM Charlottesville, LLC, a Virginia limited
liability company, which has entered into a purchase agreement to purchase all of the Lots from
Declarant except for the Restricted Lots.
Section 27. "Structure" shall include, but not be limited to, any building or portion
thereof, wall, deck, play equipment, greenhouse, skylight, solar panel, weathervane, fence, pool,
pavement,driveway or appurtenances to any of the aforementioned.
Section 28. "Successor Declarant" means any of the successors or assigns of any
Declarant.
Section 29. "Supplementary Declaration" shall mean and refer to a supplement to this
Declaration which adds additional real property to the real property encumbered by this
Declaration. Such Supplementary Declaration may(but is not required to) impose,expressly or by
reference, additional restrictions and obligations on the land subjected to that Supplementary
Declaration.
ARTICLE II
PROPERTY SUBJECT TO THIS DECLARATION,
ANNEXATION AND WITHDRAWAL, RESTRICTED LOTS
Section 1. The Property. The real property which is and shall be held, transferred, sold,
conveyed and occupied subject to this Declaration is that certain real property described as
, all as shown on the Plat,
and such additions thereto which, from time to time, may be brought within the jurisdiction of the
Association.
Section 2. Annexation Without Approval of Class"A" Membership. The Declarant hereby
reserves the unilateral right and privilege (but under no circumstances, the obligation), from time
to time, to expand the Property by submitting all or any portion of such other real property (the
"Additional Property") to the provisions of this Declaration and the jurisdiction of the
Association on a phased basis, whether or not such land is owned by the Declarant, without the
consent of any Owner (except the owner of the Additional Property being submitted) or any
Mortgagee (except the holder of a deed of trust on the Additional Property being submitted) by
filing in the Land Records, a Supplementary Declaration annexing such real property. Such
Supplementary Declaration shall not require the vote of Members and shall be effective upon the
filing for record of the Supplementary Declaration unless otherwise provided therein. Such
Supplementary Declaration shall provide an adequate legal description of the land being submitted
to the Declaration, any land being conveyed to the Association as Common Area, and any new
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Lots. Upon recording of the Supplementary Declaration, the provisions of the Declaration shall
apply to the land thereby added as if such land were originally part of the Property.
Section 3. Amendment. This Article shall not be amended without the written consent of
Declarant.
Section 4. Annexation. Upon the expiration of the Declarant Control Period, the
Association may annex additional areas and provide for maintenance, preservation and
architectural control of Lots and Common Area within such areas, and so may add to its
membership under the provisions of the Article hereof titled "MEMBERSHIP", with the written
consent of at least sixty-seven percent (67%) of each class of Members, by filing in the Land
Records a Supplementary Declaration. Upon recordation of the Supplementary Declaration, the
provisions of the Declaration shall apply to the land thereby added as if such land were originally
part of the Property.
Section 5. Dedication for Public Use. During any period of construction and development,
the Declarant has the unilateral right without the consent of any Owner or Mortgagee to execute
and record an amendment to the Declaration withdrawing any portion of the Common Area or the
Property owned by the Declarant or the Association from this Declaration,if such land is dedicated
or to be dedicated to public use.
Section 6. Withdrawable Real Estate.
A. The Declarant shall have the unilateral right, without the consent of the
Class A Members or any Mortgagee, to execute and record an amendment to this Declaration
withdrawing any portion of the Property on which Dwelling Units have not been constructed;
provided, however,that not more than five (5)years have lapsed since the date such Property was
subjected to this Declaration. The Declarant may also, during said five (5) year period, withdraw
any property or Lots owned by third-parties, with the unanimous consent of the owners of the
property or Lot to be withdrawn. Upon the expiration of said five(5)year period, other properties
or Lots may be withdrawn only upon the written consent of at least sixty-seven percent (67%) of
all Owners and Mortgagees.
B. Upon the dedication or the conveyance to any Public Entity or authority of
any portion of the Property for public purposes, this Declaration shall no longer be applicable to
the land so dedicated or conveyed. Notwithstanding the foregoing, if such portion of the Property
is subsequently re-conveyed to an entity which is not a Public Entity, then this Declaration shall
once again apply to the portion of the Property no longer owned by a Public Entity. Absent such
dedication by separate instrument signed by the Public Entity accepting such land, no public
agency, including the Virginia Department of Transportation and the County will be responsible
for maintaining any improvement identified herein.
Section 7. Restricted Lots. In addition to any of the other terms,provisions, restrictions or
covenants with respect to the Lots as the same are set forth in this Declaration, Declarant hereby
imposes additional covenants, conditions and restrictions on the Restricted Lots as follows:
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A. To the extent that any Owner of the Restricted Lots seeks to build any singl
family dwelling on the Restricted Lots, Stanley Martin Companies, LLC, a Maryland limited
liability company ("Stanley Martin"), or any of its affiliates shall be the exclusive designated
Builder on each of such Restricted Lots subject only to the parties' ability to agree on a
commercially reasonable construction contract(s) which shall be negotiated for in good faith by
each of them(the "Building Restriction"). The Building Restriction shall terminate on the earlier
of the date which is three (3) years from the date of the recording among the Land Records of the
deed conveying title to the Restricted Lots from Declarant to a third party or the date upon which
Additional Declarant has conveyed all of the Lots it agreed to purchase from Declarant to third
party purchasers. For the purposes of this paragraph, an affiliate shall mean any partnership,
corporation, limited liability company or other entity which is under common control with Stanley
Martin, or which controls, or is controlled by, Stanley Martin.
B. Until such time as any Owner of a Restricted Lot obtains a certificate of
occupancy for a dwelling unit on such Restricted Lot, such Owner shall have no obligation to pay
any Annual General Assessment or Annual Special Assessment (both as hereinafter defined) for
such Restricted Lot.
ARTICLE III
MEMBERSHIP
Every Owner of a Lot which is subject, by covenants of record, to assessment by the
Association shall be a Member of the Association. Membership shall be appurtenant to and may
not be separated from ownership of any Lot which is subject to assessment by the Association.
Ownership of such Lot shall be the sole qualification for membership. No Owner shall have more
than one (1) membership in the Association for each Lot it owns. In the event a person or entity
owns more than one(1) Lot,then such person or entity shall be considered a Member for each and
every such Lot, thereby entitling the Member to cast a vote for each Lot owned.
ARTICLE IV
VOTING RIGHTS
Section 1. Classes. The Association shall have two(2) classes of voting membership:
A. Class A: Class A Members shall be all Members and Builders with the
exception of the Class B Member. A Class A Member shall be entitled to one (1) vote for each
Lot in which it holds the interest required for membership by the Article hereof titled
"Membership".
B. Class B: The Class B Member shall be the Declarant, or, as applicable, the
co-Declarants if SM Charlottesville has become an Additional Declarant. Each Class B Member
shall be entitled to four(4)votes for each Lot in which it holds the interest required for membership
by the Article hereof titled "Membership". Class B membership shall cease, and a Class A
membership with one (1) vote for each Lot in which it holds an interest shall issue, on the
happening of any of the following events, whichever occurs first:
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1. upon the filing with the Secretary of the Association of a written
resignation of membership by the Class B Member; or
2. twenty(20)years from the date of recordation of this Declaration in
the Land Records, unless such period is revived or extended,as set forth in the Article and Section
hereof titled, "VOTING RIGHTS. Annexation".
Section 2. Annexation. Upon annexation of additional properties pursuant to this
Declaration, and in the event that Class B membership shall have ceased as hereinabove provided,
Class B membership shall be revived with respect to all Lots owned by the Declarant,which Class
B membership shall cease and be converted to Class A membership on the happening of any of
the following events, whichever occurs first:
A. upon the filing with the Secretary of a written resignation of membership
by the Class B Member; or
B. twenty (20) years from the date of recordation in the Land Records of the
document annexing such property.
Section 3. Multiple Ownership Interests. If more than one (1) person or entity holds an
ownership interest in any Lot, the vote for such Lot shall be exercised as the owners of the Lot
among themselves determine and may be exercised by any one(1)of the people or entities holding
such ownership interest, unless any objection or protest by any other holder of such ownership
interest is made prior to the completion of a vote,in which case the vote for such membership shall
not be counted,but the Member whose vote is in dispute shall be counted as present at the meeting
for quorum purposes if the protest is lodged at such meeting. In no event shall more than one (1)
vote be cast with respect to any Lot owned by a Class A Member.
ARTICLE V
PROPERTY RIGHTS
Section 1. Member's Easements of Enjoyment. The Declarant and every Member shall
have a right and easement of enjoyment in and to the Common Area, and such easement shall be
appurtenant to and shall pass with the title to every Lot, subject to:
A. the right of the Association to charge reasonable admission and other fees
for the use of any recreational facility located on the Common Area;
B. the right of the Association to limit the number of guests of Members on the
Common Area;
C. the right of the Association to adopt and enforce rules and regulations
governing the use of the Common Area and Common Facilities, including, without limitation, the
imposition of charges for the violation thereof;
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D. the right of the Association to suspend the voting rights, the right to run for
office within the Association, and rights of a Member to the use of any recreational facilities or
nonessential services offered by the Association, to the extent that access to the Member's Lot
through the Common Area is not precluded, for any period during which any assessment against
such Member's Lot remains unpaid or for a period not to exceed sixty (60) days for any infraction
of its published rules and regulations;
E. the right of the Association to borrow money for the improvement,
maintenance or repair of the Common Area or Common Facilities and in aid thereof, with the
assent of at least two-thirds (2/3) of the votes of each class of Members who are entitled to vote
and who are voting in person or by proxy at a meeting duly called for this purpose at which a
quorum is present,to mortgage the Common Area, subject to this Declaration and the easement of
enjoyment created hereby, and to acquire property encumbered by a lien or liens of a mortgage or
deed of trust; provided that any such mortgage of the Common Area must state that it is subject to
this Declaration and the easement of enjoyment created hereby and shall not be in conflict with its
designation as "open space";
F. the right of the Association at any time, or upon dissolution of the
Association, and consistent with the then-existing zoning ordinances of the County and its
designation of the Common Area as "open space", to dedicate or transfer all or any part of the
Common Area to an organization conceived and organized to own and maintain common open
space, or, if such organization will not accept such a transfer, then to the Board of Supervisors of
the County or other appropriate governmental agency, or, if such a transfer is declined, then to
another entity in accordance with the laws governing the same, for such purposes and subject to
conditions as may be agreed to by the Members. Except in the case of dissolution, any such
dedication or transfer shall have the assent of at least two-thirds (2/3) of each class of Members
entitled to vote and who are voting in person or by proxy at a meeting duly called for this purpose
at which a quorum is present, written notice of which shall be sent to all Members not less than
twenty-five (25) days nor more than fifty (50) days in advance of the meeting setting forth the
purpose of the meeting. Upon such assent and in accordance therewith, the officers of the
Association shall execute the necessary documents. The resubdivision or adjustment of the
boundary lines of the Common Area and the granting of easements by the Association shall not be
deemed a transfer within the meaning of this Article;
G. the right of the Association to grant, with or without payment to the
Association, licenses, rights-of-way and easements through or over any portion of the Common
Area. The foregoing shall not be construed, however, to permit acquisition of or damage to any
improvements, structures or installations located upon the Common Area without the payment of
damages, including severance or resulting damages, if any, to the Association absent the
Association's consent;
H. the right of the Association to lease the Common Area; and
I. the right of the Declarant or, following the Declarant Control Period, the
Association to resubdivide and/or adjust the boundary lines of the Common Area as any deem
necessary for the orderly development of the subdivision.
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Section 2. Delegation of Use. Any Member may delegate its right of enjoyment to the
Common Area and Common Facilities to the members of its immediate household, its tenants or
contract purchasers who reside on the Member's Lot. However, by accepting a deed to such Lot,
every Owner covenants that should the Owner desire to rent its Lot, the rental agreement shall
contain specific conditions which require the tenant to abide by all Association covenants, rules
and regulations, and any Owner desiring to rent a Lot further covenants that the tenant will be
provided a complete set of all Association covenants, rules and regulations. Furthermore, any
lease or sublease shall, whether or not expressly set forth therein, be deemed to contain the
foregoing covenant.
ARTICLE VI
POWERS AND DUTIES OF THE ASSOCIATION
Section 1. Discretionary Powers and Duties. The Board of Directors, on behalf of the
Association, shall have all powers for the conduct of the affairs of the Association which are
enabled by law and not specifically reserved to Members or the Declarant,including but not limited
to the following powers and duties, which may be exercised in its discretion:
A. to enforce any covenants or restrictions which are imposed by the terms of
this Declaration or which may be imposed on any part of the Property. Nothing contained herein
shall be deemed to prevent the Owner of any Lot from enforcing any building restriction in its own
name. The right of enforcement shall not serve to prevent such changes, releases or modifications
of the restriction or reservations placed upon any part of the Property by any party having the right
to make such changes, releases or modifications in the deeds, contracts, declarations or plats in
which such restrictions and reservations are set forth; and the right of enforcement shall not have
the effect of preventing the assignment of those rights by the proper parties wherever and whenever
such right of assignment exists. Neither the Association nor the Board shall have a duty to enforce
the covenants by an action at law or in equity if, in its or their opinion, such an enforcement is not
in the Association's best interest. The expenses and costs of any enforcement proceedings shall be
paid out of the general fund of the Association as herein provided for;provided, however, that the
foregoing authorization to use the general fund for such enforcement proceedings shall not
preclude the Association from collecting such costs from the offending Owner;
B. to provide such light as the Association may deem advisable on streets and
the Common Area and to maintain any and all Common Facilities which may exist or be erected
from time to time on the Common Area;
C. to build and operate Common Facilities upon the Common Area;
D. to use the Common Area and Common Facilities erected thereon, subject to
the general rules and regulations established and prescribed by the Association and subject to the
establishment of charges for their use;
E. to mow and resow the grass and to care for, spray, trim, protect, plant and
replant trees, shrubs and other landscaping on the Common Area and to pick up and remove from
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the Common Area all loose material,rubbish, filth and accumulation of debris;and to do any other
thing necessary or desirable in the judgment of the Association to keep the Common Area in neat
appearance and in good order;
F. to exercise all rights,responsibilities and control over any easements which
the Association may from time to time acquire, including but not limited to those easements
specifically reserved to the Association in the Article hereof entitled "Easements";
G. to create, grant and convey easements and licenses upon, across, over and
under all Common Area, including but not limited to easements for the installation, replacement,
repair and maintenance of utility lines serving the Property;
H. to create subsidiary corporations and other entities in accordance with
Virginia law;
I. to employ counsel and institute and prosecute such suits as the Association
may deem necessary or advisable, and to defend suits brought against the Association;
J. to retain, as an independent contractor or employee, a manager of the
Association and such other employees or independent contractors as the Board deems necessary,
and to prescribe the duties of employees and scope of services of independent contractors;
K. to enter(or have the Association's agents or employees enter)on any Lot to
perform emergency repairs or to do other work reasonably necessary for the proper maintenance
or protection of the Property;
L. to enter(or have the Association's agents or employees enter)on any Lot to
repair,maintain or restore the Lot,all improvements thereon,and the exterior of the Dwelling Unit
and any other improvements located thereon if such is not performed by the Owner of the Lot, and
to assess the Owner of the Lot the costs thereof, such assessment to be a lien upon the Lot equal
in priority to the lien provided for in the Article and Section hereof titled "ASSESSMENTS.
Creation of the Lien and Personal Obligation of Assessments"; provided, however,that the Board
shall only exercise this right after giving the Owner written notice of its intent at least fourteen
(14) days prior to such entry;
M. to resubdivide and/or adjust the boundary lines of the Common Area but
only to the extent such resubdivision or adjustment does not contravene the requirements of zoning
and other ordinances applicable to the Property;
N. to adopt,publish and enforce rules and regulations governing the use of the
Common Area and Common Facilities and with respect to such other areas of responsibility
assigned to it by this Declaration, except where expressly reserved herein to the Members. Such
rules and regulations may grant to the Board the power to suspend a Member's voting rights and
the Member's right to use Common Facilities or non-essential services for non-payment of
assessments and to assess charges against Members for violations of the provisions of the
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Declaration or rules and regulations, as provided for in the Virginia Property Owners' Association
Act;
O. to declare the office of a member of the Board vacant in the event such
member shall be absent from three (3) consecutive regular meetings of the Board;
P. to enter into contracts on behalf of all Owners and Lots for the routine pick-
up and disposal of trash and debris,the cost of which contract shall be subject to the imposition of
assessments; and
Q. to grant and convey or dedicate portions of the Common Area for public
use, including without limitation, for public street purposes.
Section 2. Mandatory Powers and Duties. The Association shall exercise the following
powers, rights and duties:
A. to accept title to the Common Area and to hold and administer the Common
Area for the benefit and enjoyment of the Owners and occupiers of Lots,and to cause the Common
Area and Common Facilities to be maintained in accordance with the standards adopted by the
Board;
B. to transfer part of the Common Area to or at the direction of the Declarant,
for the purpose of adjusting boundary lines or otherwise in connection with the orderly subdivision
or development of the Property, but only to the extent such resubdivision or adjustment does not
contravene the requirements of zoning and other ordinances applicable to the Property;
C. after the termination of the Class B membership, to obtain and maintain,
without interruption, liability coverage for any claim against a director or officer for the exercise
of its duties and fidelity coverage against dishonest acts on the part of directors, officers, trustees,
managers, employees or agents responsible for handling funds collected and held for the benefit
of the Association. The fidelity bond shall cover the maximum funds that will be in the custody
of the Association or its management agent at any time while the bond is in place. The fidelity
bond coverage shall, at a minimum, be equal to the sum of three (3) months' Annual Assessment
of all Lots in the Property plus the Association's reserve funds, if any;
D. to obtain and maintain without interruption a comprehensive coverage of
public liability and hazard insurance covering the Common Area and easements of which the
Association is a beneficiary, if available at reasonable cost. Such insurance policy shall contain a
severability of interest clause or endorsement which shall preclude the insurer from denying the
claim of an Owner because of negligent acts of the Association or other Owners. The scope of
coverage shall include all coverage in kinds and amounts commonly obtained with regard to
projects similar in construction, location and use. Further, the public liability insurance must
provide coverage of at least One Million Dollars ($1,000,000.00) for bodily injury and property
damage for any single occurrence;
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}
E. to provide for the maintenance of any and all (i) Common Facilities which
may exist or be erected from time to time on the Common Area, including but not limited to street
lights (including the payment of utility costs therefor), recreational facilities, entrance ways and
entrance areas, (ii)easement areas of which the Association is the beneficiary and for which it has
the maintenance responsibility, (iii) facilities, including but not limited to fences and signs
authorized by the Association and erected on any easements granted to the Association, and (iv)
street lights that may be constructed within the rights-of-way of any public streets within or
adjacent to the Property and which the Commonwealth of Virginia or the local governmental
authorities requires the Association to maintain(including the payment of utility costs therefor);
F. to pay all proper bills, taxes, charges and fees for which the Association is
responsible under this Declaration on a timely basis; and
G. to maintain its corporate status.
ARTICLE VII
ASSESSMENTS
Section 1. Creation of the Lien and Personal Obligation of Assessments. Each Owner of
any Lot(but not the Declarant,the Association, or any Builders)by acceptance of a deed therefor,
whether or not it shall be so expressed in any such deed or other instrument of conveyance, is
deemed to covenant and agree to pay to the Association: (a) Annual General Assessments (as
hereinafter defined), (b) Annual Service Assessments (as hereinafter defined), (c) Special
Assessments (as hereinafter defined) for capital improvements or other specified items, (d)
Restoration Assessments (as hereinafter defined), and (e) an Initial Assessment (as hereinafter
defined). Such assessments are to be established and collected as hereinafter provided. The
Association's Annual, Special, Restoration and Initial Assessments, together with interest thereon
and costs of collection thereof, as hereinafter provided, shall be a charge on the Lot and shall be a
continuing lien upon the Lot against which each assessment is made. Each such assessment,
together with interest, late fees, costs, and reasonable attorneys' fees, shall also be the personal
obligation of the person who was the Owner of such Lot at the time the assessment fell due and
shall not be the personal obligation of a successor in interest unless expressly assumed by such
successor. The Annual, Special, and Restoration Assessments, when assessed for each year, shall
become a lien on the Lot in the amount of the entire Annual, Special, or Restoration Assessment,
but shall be payable in equal installments collected on a monthly, bi-monthly, quarterly, semi-
annual or annual basis as determined upon resolution of the Board.
Section 2. Purpose of Assessment. The assessments levied by the Association shall be
used to promote the recreation, health, safety and welfare of the residents and Owners of the
Property; for the administration of the Association; for the enforcement of the provisions of the
Declaration, or any other Association document, including but not limited to management, legal
and accounting services; for the improvement and maintenance of the Common Area, including
but not limited to the payment of taxes,construction of improvements and maintenance of services
and facilities devoted to these purposes or related to the use and enjoyment of the Common Area
(including, but not limited to, storm water management and storm drainage facilities and
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easements) or other property which the Association has the obligation to maintain; and, for such
other purposes as the Board may determine to be appropriate.
Section 3. Annual Assessments.
A. The Association must levy in each of its fiscal years an annual general
assessment (the "Annual General Assessment") against each Lot. The amount of such Annual
General Assessment shall be established by the Board and written notice of such shall be sent to
every Owner at least thirty (30) days in advance of the commencement of each Annual General
Assessment period. The Annual General Assessment shall become applicable as to a Lot at such
time as an occupancy permit is issued for such Lot. The first Annual General Assessment shall be
adjusted according to the number of months remaining in the calendar year.
B. The amount of the Annual General Assessment shall be determined by the
Board according to its estimate of the cost of providing services or rights of use which are common
to all of the Lots.
C. The Association may also, but shall not be required to, levy in each of its
fiscal years a separate annual assessment (the "Annual Service Assessment") against specific
Lots within the Property. The amount of the Annual Service Assessment shall be determined by
the Board for specified Lots constituting an Annual Service Assessment group ("Annual Service
Group") according to its estimated cost of providing services, reserves or rights of use specific to
Lots within an Annual Service Group, which services or rights are not enjoyed by all of the
Members and are primarily for the benefit of the Members owning a Lot within an Annual Service
Group. The amount of an Annual Service Assessment shall be the same for each Lot within an
Annual Service Group,but need not be uniform with any other Annual Service Assessment, if any,
imposed upon any other Lot within any other Annual Service Group.
Section 4. Special Assessment. In addition to the Annual Assessments authorized above,
the Association may levy, in any assessment year, a special assessment applicable to that year only
for the purpose of defraying,in whole or in part,the cost of any construction,reconstruction,repair
or replacement of capital improvements upon the Common Area or Common Facilities, including
the fixtures and personal property related thereto, or for any other specified purpose(the "Special
Assessment"). The Special Assessment shall be levied against all of the Lots within the portions
of the Property so benefiting, pro rata according the degree of benefit received by each Lot
("Special Assessment Group"). The amount of the Special Assessment shall be the same for
each Lot within a Special Assessment Group,but need not be uniform with the Special Assessment
imposed on Lots within other portions of the Property. To be effective, any such assessment shall
have the assent of more than two-thirds (2/3) of the votes of each class of Members within the
affected portions of the Property,who are entitled to vote and who are voting in person or by proxy
at a meeting duly called for this purpose at which a quorum is present, written notice of which
setting forth the purpose of the meeting shall be sent to all Members and the Declarant not less
than thirty(30) days nor more than sixty(60) days in advance of the meeting.
Section 5. Restoration Assessment. The Association may levy and impose an Assessment
upon any Lot for any charges incurred by the Association related to action taken to bring a Lot
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into compliance with the provisions of this Declaration, or any other Association document, due
to the failure of an Owner to maintain a Lot in accordance therewith, or the enforcement of any
applicable laws of any governmental authority, as more particularly set forth in this Declaration
(each, a"Restoration Assessment"). Written notice specifying (i) the amount of the Restoration
Assessment due, and (ii) the number and amounts of the installments by which such Restoration
Assessment is to be paid, shall be given to the Owner of each Lot subject thereto.
Section 6. Quorum for any Action Authorized Under Special Assessment Provision. At
the first calling of a meeting under the Article and Section hereof titled, "ASSESSMENTS. Special
Assessment", the presence at the meeting of Members or proxies entitled to cast sixty percent
(60%) of all the votes of each class of Members shall constitute a quorum. If the required quorum
does not exist at any such meeting, another meeting may be called subject to the notice
requirements set forth in said "Special Assessment"Section herein, and to applicable law, and the
required quorum at any such subsequent meeting shall be one-half(1/2) of the required quorum at
the preceding meeting. No such subsequent meeting shall be held more than sixty (60) days
following the preceding meeting.
Section 7. Initial Assessment. Each initial purchaser of a Lot(but not including a Builder,
the Association or the Declarant) shall pay to the Association at settlement an initial assessment
(the "Initial Assessment") equal to [INSERT DOLLAR AMOUNT]. The Declarant, the
Association, and the Builders, however, shall not be required to pay any Initial Assessment on the
Lots they own. Such funds may also be used for certain prepaid items, equipment, supplies,
organizational costs, start-up costs, operating expenses or other costs as the Board of Directors
may determine.
Section 8. Rate of Assessment. The Annual General Assessment shall be fixed at a
uniform rate for all Lots, and the Annual Service Assessments and Special Assessments shall be
fixed at a uniform rate for all Lots within each assessment group (but may be a different amount
for Lots within different groups). Any Lots owned by the Declarant or a Builder shall be exempt
from assessment.
Section 9. Notice of Assessment and Certificate. Written notice of the Annual General
Assessments shall be sent to every Member and written notice of the Annual Service Assessments
shall be sent to every Member for which such Annual Service Assessment is applicable. The due
dates for payment of the Annual Assessments shall be established by the Board. The Association
shall, upon demand at any time, furnish a certificate in writing signed by an officer or authorized
agent of the Association setting forth whether the assessments on a specified Lot have been paid.
A reasonable charge may be made by the Board for the issuance of these certificates. Such
certificates shall be conclusive evidence of payment of any assessment therein stated to have been
paid.
Section 10. Remedies of the Association in the Event of Default. If any assessment
pursuant to this Declaration is not paid within thirty (30) days after its due date, the assessment
shall bear interest from the date of delinquency at the higher of: (i) twelve percent (12%) per
annum, or(ii)the judgment rate provided for in the Code of Virginia. In addition, in its discretion,
the Association may:
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A. impose a penalty or late charge as previously established by rule;
B. bring an action at law against the Owner personally obligated to pay the
same and/or foreclose the lien against the Lot, and interest, costs and reasonable attorneys' fees of
any such action shall be added to the amount of such assessment. A suit to recover a money
judgment for nonpayment of any assessment levied pursuant to this Declaration,or any installment
thereof, may be maintained without perfecting, foreclosing or waiving the lien provided for herein
to secure the same;
C. suspend a Member's voting rights, right to hold an office within the
Association, and right to use Common Facilities or nonessential services offered by the
Association to the extent that access to the Member's Lot through the Common Area is not
precluded. No assessment shall be refunded in the event of suspension; and
D. accelerate the due date of the unpaid assessment so that the entire balance
shall become due, payable and collectible; and
E. levy and impose a Restoration Assessment.
No Owner may waive or otherwise escape liability for the assessments provided for herein
by non-use of the Common Area or Common Facilities, abandonment of its Lot, or the failure of
the Association or the Board to perform their duties.
Section 11. Subordination of the Lien to Mortgages. The lien of the assessments provided
for herein shall be subordinate to the lien of any properly recorded first trust or mortgage if such
first trust or mortgage was recorded before the delinquent assessment was due. Sale or transfer of
any Lot shall not affect the assessment lien. However, the sale or transfer of any Lot pursuant to
a foreclosure of a first trust or mortgage, or any conveyance in lieu thereof, shall extinguish the
lien of such assessments as to payment thereof which became due prior to such sale or transfer.
No such sale or transfer shall relieve such Lot from liability for or the lien of any assessments
which thereafter become due or from the lien thereof.
Section 12. Exempt Property. Notwithstanding any other provision contained in this
Declaration, the following property subject to this Declaration shall be exempt from the
assessments created herein: (a) all property dedicated to and accepted by a local public authority;
(b) the Common Area (including without limitation all areas platted as Open Space in thAM
however, no land or improvements devoted to dwelling use shall be
exempt from said assessments; and (c) any and all Lots and/or other property owned by the
Declarant, Additional Declarant, the Association, or a Builder.
ARTICLE VIII
ARCHITECTURAL REVIEW BOARD
Section 1. Composition. The ARB shall be comprised of three (3) or more members (but
always an odd number of members). Members shall serve staggered three (3) year terms as
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determined by the Board. As long as the Declarant or a Builder owns any Lot within the Property,
the ARB shall consist of two (2) committees (the "Committees"): the New Construction
Committee and the Modification and Change Committee. Each committee shall be comprised of
three (3) or more members. When neither the Declarant nor a Builder owns a Lot within the
Property, the New Construction Committee shall be terminated. Actions by the ARB and the
Committees shall be by majority consent of the members.
Section 2. Method of Selection. The Declarant shall appoint the persons to serve on the
New Construction Committee. The Board shall appoint the persons to serve on the Modification
and Change Committee. After the termination of the Class B membership, no member of the
Modification and Change Committee may be a Director. The Declarant may assign its rights under
this Article to a Declarant or non-Declarant by a written assignment. A person may serve on the
ARB and on both the New Construction Committee and the Modification and Change Committee.
Section 3. Removal and Vacancies. Members of the Modification and Change Committee
of the ARB may be removed by the Board at any time with or without cause. Appointments to fill
vacancies in unexpired terms shall be made in the same manner as the original appointment. The
Declarant may remove any member of the New Construction Committee at any time, with or
without cause.
Section 4. Officers. At the first meeting of the Modification and Change Committee of
the ARB following each annual meeting of Members, the Modification and Change Committee
shall elect from among themselves a chairperson, a vice-chairperson and a secretary who shall
perform the usual duties of their respective offices.
Section 5. Duties. The Committees of the ARB shall regulate the external design and
appearance of the Property and the external design, appearance and location of the improvements
thereon in such a manner so as to preserve and enhance property values and to maintain
harmonious relationships among structures and the natural vegetation and topography. During the
period the ARB is comprised of the two (2) committees described above, the New Construction
Committee shall regulate all initial construction, development or improvements on the Property.
The Modification and Change Committee shall regulate all modifications and changes to existing
improvements on the Property. In furtherance thereof, the ARB shall:
A. through the appropriate Committee, review and approve or disapprove
written applications of Owners for proposed improvements, alterations or additions to Lots
((approval by a Committee shall be deemed to be approval by the ARB);
B. periodically inspect the Property for compliance with adopted, written
architectural standards and approved plans for alteration;
C. adopt and publish architectural standards subject to the confirmation of the
Board; these standards shall include, at a minimum, provisions that (1) the same model of home
with the same exterior elevation may not be built on adjacent lots, (2) no vinyl siding shall be
permitted on the homes, and (3) the homes shall be consistent and compatible in design, but may
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have front elevations of brick, stone or cementitious siding and may vary in the use of porches,
shutters, gables or other design features;
D. adopt procedures for the exercise of its duties and conduct its proceedings
in accordance with Roberts Rules of Order - Revised, subject to such written amendments as the
ARB shall enact, from time to time; and
E. maintain complete and accurate records of all actions taken by the ARB and
the Committees.
Approval by the ARB of a correctly filed application shall not be deemed to be an approval by
applicable governmental authorities nor a waiver of the applicant's obligation to obtain any
required governmental approvals or to comply with applicable local ordinances or a representation
or warranty by the ARB or the Association as to the fitness of a proposed structure or its
compliance with applicable building codes or local ordinances.
Section 6. Applications for Improvements or Alterations. Prior to construction or
installation of any improvement, addition or alteration of a Lot or Structure, a written application
("Application") must be filed with, and written approval obtained from, the ARB. Applications
shall include plans and specifications, including, but not limited to, design, elevation views,
material, shape,height,color and texture,and a site plan and/or house location survey showing the
location of all improvements with grading and drainage modifications. Applications must be
submitted by Registered or Certified Mail, Return Receipt Requested, to the ARB. The ARB
reserves the right to require any additional information it deems reasonably necessary in order to
properly process and assess any Application. The ARB reserves the right to deny any Application
which may result in a negative impact on surrounding areas. Owners are solely responsible for
determining the necessity of, and obtaining the approval of, any appropriate authority or
governmental agency, including obtaining any necessary construction permits, prior to
construction or installation of any improvement, addition or alteration of a Lot or Structure.
Section 7. Failure to Act. In the event the ARB(acting through the appropriate Committee)
fails to approve or disapprove a correctly filed Application within sixty(60) days of the receipt of
an Application sent by Registered Mail or Certified Mail-Return Receipt Requested, approval by
the ARB shall be deemed granted, except for those applications for uses, additions or alterations
prohibited by this Declaration or the architectural standards adopted by the ARB, in which case no
disapproval is necessary to uphold the prohibition. Failure of the ARB or the Board to enforce the
architectural standards or to notify an Owner of noncompliance with architectural standards or
approved plans for any period of time shall not constitute a waiver by the ARB or the Board of the
enforcement of this Declaration at any later date.
Section 8. Enforcement. Any exterior improvement, addition, change or alteration made
without application to, and approval of, the ARB shall be deemed to be in violation of these
covenants and may be required by the Board to be restored to its original condition at the offending
Owner's sole cost and expense.
Section 9. Appeal. Any aggrieved party may appeal a decision of the ARB to the Board
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by giving written notice of such appeal to the Association or any director within twenty (20) days
of the adverse ruling,which appeal must be submitted by Registered Mail or Certified Mail-Return
Receipt Requested.
ARTICLE IX
RESTRICTIVE COVENANTS
Section 1. Use. The Property shall be used exclusively for residential purposes except as
provided in the Article and Section hereof titled, "RESTRICTIVE COVENANTS. Declarant's
Activities" and except for facilities operated by the Association. The Declarant reserves the right
pursuant to a recorded subdivision or resubdivision plat, to alter, amend, and change any lot line
or subdivision plan or plat.. No building shall be erected, altered, placed or permitted to remain
on any Lot other than one Dwelling Unit and appurtenant structures, approved by the ARB and
appropriate governmental authorities, for use solely by the occupant of the Dwelling Unit.
Section 2. Maintenance. An Owner shall, at all times, maintain its property and all
appurtenances thereto in good repair and in a state of neat appearance.
A. Structure Exteriors. The exteriors of all Structures shall be kept in good
maintenance and repair. No Structure shall be permitted to stand with its exterior in an unfinished
condition for longer than six (6) months after the commencement of construction. In the event of
fire, windstorm or other damage, the exterior of a Structure shall not be permitted to remain in a
damaged condition for longer than three (3) months, unless expressly permitted in writing by the
Board or the Declarant.
B. Vegetation. All grassy areas of a lawn shall be kept mowed and shall not
be permitted to grow beyond a reasonable height.
C. Sight Lines. No fence, wall, tree, hedge or shrub shall be maintained in
such a manner as to obstruct sight lines for vehicular traffic.
D. Removal of Trees. Except as required for proper vehicular sight lines, no
tree with a diameter greater than four inches (4") measured two feet (2') above ground level shall
be removed without the approval of the ARB.
E. Water Drainage. All natural water drainage patterns or swales of a Lot shall
be properly maintained and preserved so as to not impede or alter the natural drainage patterns
and/or swales of a Lot, or which causes the discharge or diversion of water onto neighboring Lots
or the Common Area, unless satisfactory alternates approved in writing by the ARB have been
provided.
Section 3. Nuisance. No noxious or offensive activity shall be carried on upon the
Property, nor shall anything be done or placed thereon which is or may become an annoyance or
nuisance to the neighborhood.
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A. Animals. No domesticated or wild animal shall be kept or maintained on
any Lot, except for common household pets such as dogs and cats which may be kept or
maintained, provided that they are not kept, bred or maintained for commercial purposes and do
not create a nuisance or annoyance to surrounding Lots or the neighborhood and are kept in
compliance with applicable governmental ordinances. Law enforcement and animal control
personnel shall have the right to enter the Property to enforce local animal control ordinances.
B. Utilities. All telephone, electric and other utility lines shall be installed and
located underground, unless otherwise approved by the ARB.
C. Lighting. No exterior lighting on a Lot shall be directed outside the
boundaries of the Lot. Exterior lighting which results in an adverse visual impact to adjacent Lots,
whether by location, wattage or other features, is prohibited. The ARB shall have the right to
determine whether or not exterior lighting results in an adverse visual impact,which decision may
be appealed to the Board.
D. Laundry. No clothing, laundry or wash shall be aired or dried on any
portion of the Property within public view.
E. Trash. Trash shall be collected and stored in trash receptacles only and not
solely in plastic bags. Trash and garbage receptacles shall not be permitted to remain in public
view, except on days of trash collection, and except those receptacles designed for trash
accumulation located in the Common Area. No accumulation or storage of litter, new or used
building materials, or trash of any kind shall be permitted on the exterior of any Dwelling Unit.
The Association shall have the right, upon seven (7) days' notice, to remove from a Lot, at a Lot
Owner's sole expense and cost,any trash or debris it deems detrimental to the health and/or overall
character of the Property.
F. Vehicles. No inoperable, junk, unregistered, unlicensed or uninspected
vehicle shall be kept on the Property. No portion of the Property shall be used for the repair of a
vehicle. No vehicles shall be parked on any Lot except within a garage or on an improved driveway
or parking area.
G. Commercial Vehicles. No commercial or industrial vehicle, such as but not
limited to moving vans, trucks, tractors, trailers, vans, wreckers, tow trucks, hearses and buses,
shall be regularly or habitually parked or parked overnight on the Property, except upon the prior
written approval of the ARB.
H. Recreational Vehicles. No recreational vehicles or equipment, such as but
not limited to boats, boating equipment, personal watercraft (e.g. jet skis), travel trailers, horse
trailers,camping vehicles or camping equipment shall be parked on the Property without the prior,
written approval of the ARB, as to location, size, screening and other relevant criteria. The
Association shall not be required to provide a storage area for these vehicles.
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I. Towing. The Association shall have the right to tow any vehicle parked or
kept in violation of the covenants contained within this Article, upon twenty-four (24) hours'
written notice and at the vehicle owner's sole expense.
J. Construction Debris. During construction of improvements on any Lot,the
Owner shall maintain its Lot in an orderly fashion, and shall remove all debris and equipment in a
timely fashion. All roads and pedestrian access ways around the Lot shall be kept free from
equipment, building materials and dirt.
Section 4. Modification. No modification or alteration of any Lot,Structure,or any portion
thereof, shall be made, installed, constructed, erected, placed, altered and/or externally improved
on any Lot or Structure until an Application has been properly filed with, and approved by, the
ARB in accordance with the Article and Section hereof titled, "ARCHITECTURAL REVIEW
BOARD.Applications for Improvements or Alterations",and,if required,proper authority has been
granted by appropriate authorities and, where required,appropriate construction permits obtained.
A. Paint. Approval of the ARB is not required for repainting or re-staining a
Structure or an element of a Structure to match its original color. However,prior written approval
by the ARB is required for color changes to any Structure or portion thereof.
Section 5. Structures. No Structure or addition to a Structure shall be erected, placed,
altered or externally improved on any Lot until an Application has been properly filed with, and
approved by, the ARB in accordance with the Article and Section hereof titled,
"ARCHITECTURAL REVIEW BOARD. Applications for Improvements or Alterations", and, if
required, proper authority has been granted by appropriate authorities and, where required,
appropriate construction permits obtained.
A. Exterior Composition. All Dwelling Unit and/or Structure exteriors shall
first be approved in writing by the ARB.
B. Water Drainage. No Structure shall be erected or built on any Lot which
impedes the natural water drainage patterns or swales of a Lot, or which causes the discharge or
diversion of water onto neighboring Lots or the Common Area, unless satisfactory alternates
approved in writing by the ARB have been provided.
C. Fences. No fence or enclosure shall be erected or built on any Lot until first
approved in writing by the ARB as to location, height, material and design. Any fence or wall
built on any Lot shall be maintained in a proper manner so as not to detract from the value and
desirability of surrounding property. The standards for fences contained herein are in addition to
any laws or ordinances applying to fencing, and do not relieve an Owner from compliance with
such laws and ordinances.
D. Antennae/Satellite Dishes. Standard TV antennas and other over-the-air
reception devices (including satellite dishes) of less than one meter (39 inches) in diameter shall
be permitted, subject to reasonable standards regarding placement, screening, maintenance and
indemnity obligations, which may be adopted by the ARB from time to time, such standards to be
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in conformity with Federal Communications Commission Regulations (47 CFR 1.4000), as
amended; provided, however, that all such rules relating to antennae and satellite dishes shall not
unreasonably delay installation, interfere with reception or increase the cost. Should any
regulations adopted herein or by the ARB conflict with federal law, such rules as do not conflict
with federal law shall remain in full force and effect.
E. Signage. The only signs permitted on the Property shall be customary home
and address signs and real estate sale or lease signs which have received the prior written approval
of the ARB ("Permitted Signs"). No more than one (1) Permitted Sign shall be displayed to
public view on any Lot, must be less than or equal to two (2) square feet in total surface area, and
shall not be illuminated. All Permitted Signs advertising the property for sale or rent shall be
removed within three (3) days from the date of the conveyance of the Lot or of the execution of
the lease agreement, as applicable. All signage must be in conformance with Zoning
Requirements.
F. Failure to Maintain. In the event an Owner of any Lot shall fail to maintain
such Lot and the improvements situated thereon as provided herein and otherwise in accordance
with the provisions of this Declaration or any Rules and Regulations established from time to time
by the Board of Directors, the Association, after(i) ten days' Notice to the Owner, such notice to
include a description of the action intended to be taken, and(ii) approval by two-thirds vote of the
Board of Directors, shall have the right to enter upon said Lot to correct drainage and to repair,
maintain and restore the Lot and the exterior of the buildings and any other improvements erected
thereon or to correct any violation of this Declaration or any Rules and Regulations. Such right
shall also include the right: (i) to mow the grass thereon; (ii) to remove any debris from the Lot;
(iii)to trim or prune any hedge,or planting that, in the opinion of the Board of Directors,by reason
of its location or height or the manner in which it has been permitted to grow, is detrimental to the
enjoyment of adjoining property or is unattractive in appearance; (iv) to repair or paint any fence
thereon that is out of repair or not in harmony, with respect to design or color, with fencing on
adjacent property, unless the design or color of such fence has been previously approved by the
ARB; and (v) to do any and all things necessary or desirable in the opinion of the Board of
Directors to place such Lot in a neat and attractive condition consistent with the intention of this
Declaration. All costs related to such correction, repair or restoration shall become a Restoration
Assessment upon such Lot and as such shall be regarded as any other assessment with respect to
lien rights of the Association and remedies provided for herein for non-payment.
Section 6. Leases. Any rental agreement for a Dwelling Unit must be subject to the rules
and regulations set forth in this Declaration and in the other Association documents. Every such
rental agreement must include a provision stating that any failure by the tenant, its household
members or guests, to comply with the terms of such Association documents shall be a default
under the rental agreement,and the Owner shall be responsible for enforcing this provision. In the
event any such rental agreement fails to include the covenants set forth in this Declaration,all such
covenants shall be deemed incorporated into the rental agreement.
Section 7. Declarant's Activities. The provisions of this Article shall not apply to the
development of or construction of improvements on the Property by the Declarant or its assigns.
The Declarant and any Builder or their respective assigns may, during their construction and/or
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sales period, erect, maintain and operate real estate sales and construction offices, model homes,
displays,signs and special lighting on any part of the Property and on or in any building or structure
now or hereafter erected thereon.
Section 8. Rules and Regulations. The Association shall have the authority to adopt such
rules and regulations regarding this Article as it may from time to time consider necessary or
appropriate.
ARTICLE X
EASEMENTS
Section 1. Blanket Easements. The Declarant grants, and the Association reserves, a
blanket easement to the Association, its directors, officers, agents and employees, to any manager
employed by or on behalf of the Association, and to all police, fire, ambulance personnel and all
similar persons, to enter upon the Property in the exercise of the functions provided for by this
Declaration, Articles of Incorporation, By-Laws and rules of the Association, and in the event of
emergencies and in the performance of governmental functions.
Section 2. Exercise of Easement Rights. When not an emergency situation or a
governmental function, the rights accompanying the easements provided for in the Article and
Section hereof titled, "EASEMENTS. Blanket Easements" shall be exercised only during
reasonable daylight hours and then, whenever practicable, only after advance notice to, and with
the permission of, any Owner or tenant directly affected.
Section 3. Encroachments. If any improvement on the Property now or hereafter
encroaches on any other portion of the Property by reason of(a) the original construction thereof
by the Declarant or its assigns, which shall include, but not be limited to, any driveway which
encroaches over a Lot's boundary line and draining of rainwater from roofs, (b) deviations within
normal construction tolerances in the maintenance, repair, replacement or reconstruction of any
improvement, or (c) the settling or shifting of any land or improvement, an easement is hereby
granted to the extent of any such encroachment for both the encroachment and its maintenance for
the period of time the encroachment exists. The owner of the encroaching improvement shall also
have an easement for the limited purpose of maintenance of the encroaching improvement. This
easement does not relieve any Owner or any other person from liability for such Owner's or other
person's negligence or willful misconduct.
Section 4. Development. The Declarant, a Builder and their respective agents and
employees shall have a right of ingress and egress over the Common Area as required for
construction on and development of the Property.
Section 5. Utilities. So long as the Declarant or a Builder owns any Lots within the
Property or owns any Additional Property, there is reserved to the Declarant and such Builder a
right to grant non-exclusive easements over any Lot or Common Area for the purposes of
installing, repairing and/or maintaining utility lines of any sort, including but not limited to storm
drains and drainage swales, sanitary sewers, gas lines, electric lines and cables, water lines,
telephone lines, telecommunication lines and cables, and the like, and for any purpose necessary
23
for the Declarant or a Builder or their respective assigns to obtain the release of any bonds posted
with a municipality,governmental agency or regulatory agency,and non-exclusive easements over
the Common Area to any municipal agency or private entity for any other purpose consistent with
the "open space" and/or "recreation" designation thereof.
Section 6. Release of Public Improvement Bonds. There is reserved to the Declarant and
Builders an easement and the right to grant and reserve easements or to vacate or terminate
easements across all Lots and Common Area as may be required by any governmental agency or
authority or utility in connection with the release of improvement bonds or the acceptance of public
streets for state maintenance with respect to the Property.
Section 7. Declarant-Retained Easement Rights. Declarant expressly reserves and retains
certain rights with respect to the ability to grant and establish easements.
A. During the Declarant Control Period, there is reserved to the Declarant a
non-exclusive easement over all Lots and the Common Area for the purposes of correcting
drainage, regrading, maintenance, landscaping, mowing and erecting street intersection signs,
directional signs,temporary promotional signs, entrance features, lights and wall features, and for
the purpose of executing any of the powers, rights, or duties granted to or imposed on the
Association herein.
B. Declarant further reserves and retains the right, at any time hereafter, and
from time to time, to grant such easements as may be deemed necessary and/or desirable in
connection with the development or operation of the Property, including without limitation any
easements requested or required by any Public Entity and/or provider of public utilities, including
without limitation, Dominion Power Company and CenturyLink telephone company.
Notwithstanding the foregoing, this retained right to grant easements shall not be utilized in such
a manner that it materially and adversely interferes with the ability of a Member to develop and
utilize its individual Lot for residential purposes,and shall not encroach within any building area(s)
of Lots, in locations shown on the Plat, or as may hereafter be approved by applicable
governmental authorities (provided that any easements granted prior to any revisions to an
approved building area shall not be affected).
Section 8. Maintenance of Storm Drainage Easements.
A. The Subdivision Plat provides for various easements on, through, over,
under and across such portions of the Lots as depicted thereon and incorporated herein (the
"Easements"), for the installation, construction, reconstruction and inspection of the storm
drainage system. Declarant, and its agents, employees, independent contractors and designees,
shall have all rights and privileges as may be reasonably necessary to the exercise of the foregoing
easements, including, without limitation, a reasonable right of ingress and egress to and from the
Easements over the Lots.
B. The Association shall maintain all drainage easements which have not been
dedicated to public use or otherwise made the responsibility of the local government, an agency
thereof or another third party. Notwithstanding the foregoing, while the Association shall have
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the right to enter on to a Lot for purpose of maintaining the Easements, each Owner shall be
responsible for maintaining such portion of any Easement which may be contained within his or
her Lot.
C. No Owner shall take any action with respect to the Easements that would
interfere or be inconsistent with the use of the Easements by the Association for the purposes
named herein. No walls, fences, barriers, trees, plantings, landscaping or other obstructions shall
be erected or allowed to remain within the Easements so as to interfere with the free flow of storm
water runoff through the Easements, or any portion thereof
D. If any portion of the Easements is damaged or destroyed by the act or
negligent omission of one Owner,or any of such Owner's tenants, lessees, agents, guests,invitees,
licensees or family members, so as to interfere with the free flow of storm water runoff through
the Easements, then said Owner shall be responsible for damage caused thereby and shall
reimburse the Association, promptly on demand, for all costs and expenses incurred by the
Association in rebuilding and/or repairing the Easements to as good condition as existed prior to
such damage or destruction.
E. Except to the extent expressly provided otherwise herein, all costs
associated with the maintenance, repair, replacement and/or inspection of the Easements shall be
the responsibility of the members of the Association as a Common Facility in accordance with the
Declaration. Any monies required to be reimbursed and/or paid to the Association by any Member
or Owner involving the Easements pursuant to this Declaration which are not paid by such Member
or Owner within ten (10) days of the due date established by the Association shall be collectible
by the Association in the same manner, with the same rights and remedies, as assessments levied
by the Association under the Declaration.
F. All provisions of the Easements,including the benefits and burdens thereof,
shall touch,concern and run with the land,shall inure to the benefit of the Association,the Owners
and the Declarant, and their respective successors and assigns, and shall be binding upon the
Owners and their respective successors, transferees, assigns, heirs and personal representatives.
G. The obligations and liabilities of the Owners hereunder shall apply only
with respect to the period during which each Owner owns an interest in a Lot or Parcel. When an
Owner ceases to own an interest in a Lot or Parcel,the obligations and liabilities thereafter accruing
(but not any accrued and unperformed obligations and liabilities) shall be the obligations and
liabilities of the successor, transferee or assign in ownership or interest of such Owner. The
transferring Owner, however, shall remain liable for all accrued and unperformed obligations and
liabilities existing at the time of transfer.
H. No restriction, condition, obligation or provision of this Declaration, with
regard to the Easements or otherwise,shall be deemed to have been abrogated or waived by reason
of any failure or failures to enforce the same.
Section 9. Private Driveways. All driveways over and across any Lot within the Property
are private, and the construction, maintenance and repair of any such driveway and its facilities is
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the responsibility of each Owner of a Lot benefiting therefrom. The construction, maintenance
and repair of all such driveways shall not be the responsibility of the Association, the County or
the Commonwealth of Virginia.
Section 10. Public Entity Easements. In the event any conflict arises between the terms
and provisions of this Declaration and any easement previously or subsequently granted to a Public
Entity, any such easement to a Public Entity shall prevail over the terms and provisions of this
Declaration.
ARTICLE XI
PARKING
The Board may promulgate such rules and regulations as it deems appropriate to regulate
parking within the Property, which rules and regulations may include, without limitation,
assignment of parking spaces for Owners and/or visitors and the towing of any vehicles parked in
violation of such assignment, in fire lanes and in designated "No Parking" spaces, with no notice
of towing required and at the vehicle owner's sole expense.
ARTICLE XII
RIGHTS OF MORTGAGEES
All Mortgagees shall have the following rights:
Section 1. Notice. A Mortgagee shall be given written notice from the Association of the
following:
A. any condemnation or casualty loss that affects either a material portion of
the Common Area or the Lot that is the security for the indebtedness due the Mortgagee;
B. any default in the performance of any obligation under this Declaration or
related Association documents by the Owner of a Lot that is the security for the indebtedness due
the Mortgagee which is not cured within sixty (60) days after the Owner's receipt of notice of the
default;
C. any lapse, cancellation or material modification of any insurance policy or
fidelity bond maintained by the Association; and
D. any proposed action that would require the consent of a specified percentage
of Mortgagees.
Section 2. Unpaid Assessments. Any Mortgagee, who obtains title to a Lot pursuant to
the remedies provided in its mortgage or deed of trust or foreclosure of the mortgage or deed of
trust or deed in lieu of foreclosure, will not be liable for such Lot's unpaid dues or charges which
accrue prior to the acquisition of title to the Lot by the Mortgagee.
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Section 3. Books and Records. A Mortgagee shall have the right to examine and copy at
its expense the books and records of the Association during normal business hours and upon
reasonable notice to the Association.
Section 4. Notice by Request. As set forth in this Article, Mortgagees shall have the right,
upon request, to receive notice of(a)the decision of the Owners to abandon, modify or terminate
the current zoning category of the Property as a Planned Residential Development; and (b) any
material amendment to the Declaration, the By-Laws or the Articles of Incorporation.
Section 5. Mortgagee Approval. The approval of any Mortgagee shall be deemed accepted
by the Association in the following forms: (a)written approval; (b)any written waiver of approval
rights; (c) a formal letter stating no objection; or, (d) presumptive approval if a Mortgagee does
not respond within thirty (30) days to any notice sent through the United States Postal Service by
Certified Mail, Return Receipt Requested, provided that the Association receives a U.S. Postal
Service Return Receipt signed by an authorized agent of the Mortgagee confirming receipt of any
such notice by the Mortgagee. Refusal of any notice by a Mortgagee shall in no way affect the
validity of any such notice. Approval of Mortgagees shall be calculated based on one vote for
each first deed of trust held by a Mortgagee.
Section 6. Rights. Provided that improvements have been constructed in the Common
Area and provided that a Mortgagee gives written notice to the Association that it has relied on the
value of the improvements in making a loan on a portion or all of the Property, then such
Mortgagee shall be further entitled to the following rights:
A. Subject to the right of the Declarant to annex additional areas as provided
in the Article hereof titled "GENERAL PROVISIONS", unless at least sixty-seven percent (67%)
of the total allocated votes in the Association and Mortgagees representing at least fifty-one percent
(51%) of those Lots that are subject to mortgages or deeds of trust have given their prior written
approval, the Association shall not:
1. fail to maintain fire and extended coverage insurance on insurable
parts of the Common Area or other Association property on a current replacement cost basis in an
amount not less than one hundred percent (100%) of the insurable value, based on current
replacement costs, not including land value;
2. use hazard insurance proceeds for losses to the Common Area or
other Association property for other than the repair, replacement or reconstruction of such
property;
3. add or amend any material provision of this Declaration or related
Association documents concerning the following:
a. voting rights of any Member;
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b. increases in assessments that raise the previously assessed
amount by more than twenty-five percent (25%), assessment liens, or the priority of assessment
liens;
c. reductions in reserves for maintenance, repair and
replacement of those parts of the Common Area that may be replaced or require maintenance on a
periodic basis by more than twenty-five percent(25%);
d. insurance or fidelity bonds;
e. responsibility for maintenance and repair of the Property;
f. annexation or withdrawal of property to or from the Property
(other than annexation or withdrawal of those properties referred to in the Article hereof titled,
"PROPERTY SUBJECT TO THIS DECLARATION, ANNEXATION AND WITHDRAWAL");
g• imposition of any restriction on the leasing of Dwelling
Units;
h. imposition of any right of first refusal or similar restriction
on the right of an Owner to sell,transfer or otherwise convey its property;
i. restoration or repair of the Property after damage or partial
condemnation;
j. reallocation of interests in the Common Area or rights to its
use, except as provided in the Articles hereof titled "VOTING RIGHTS" and "PROPERTY
RIGHTS" herein;
k. termination of the legal status of the Association after
substantial destruction or condemnation of the subdivision occurs; and
1. any provisions that are for the express benefit of Mortgagees.
4. by act or omission seek to abandon, partition, subdivide, encumber,
sell or transfer the Common Area. The resubdivision and/or adjustment of boundary lines of the
Common Area and the granting of easements by the Association shall not be deemed a transfer or
subdivision within the meaning of this clause.
5. by act or omission waive or abandon any scheme of regulations or
their enforcement pertaining to the architectural design or the exterior appearance of Dwelling
Units and their appurtenances, the exterior maintenance of Dwelling Units and their
appurtenances, the maintenance of the Common Area, common fences and driveways and the
upkeep of lawns and plantings in the Property.
28
An addition or amendment to this Declaration or related Association documents shall not
be considered material if it is for the purpose of clarification or correcting errors. A Mortgagee
who receives a written request to approve additions or amendments who does not deliver or post
to the requesting party a negative response within thirty (30) days of receipt of such request shall
be deemed to have approved such request.
B. A Mortgagee may,jointly or singly, pay taxes or other charges which are in
default and which may or have become a charge against the Common Area and may pay overdue
premiums on hazard insurance policies or secure new hazard insurance coverage upon the lapse of
a policy for such Common Area. The Mortgagee making such payments shall be owed immediate
reimbursement therefor from the Association.
C. In the event that there is a condemnation or destruction of the Common Area
or other Association property, to the extent practicable, condemnation or insurance proceeds shall
be used to repair or replace the condemned or destroyed property.
D. Should there be excess insurance or condemnation proceeds after the
renovation, repair or reconstruction called for herein, such excess proceeds may be distributed
equally to the Owners,apportioned equally by Lot; subject,however,to the priority of a Mortgagee
with regard to the proceeds applicable to the Lot securing said Mortgagee and in accordance with
Virginia law.
E. The Association must provide an audited financial statement for the
preceding fiscal year to a Mortgagee upon its written request at the Mortgagee's expense.
F. Eligible Mortgagees representing at least fifty-one percent (51%) of the
votes of the mortgaged Lots must consent to the termination of the legal status of the Association
for reasons other than substantial destruction or condemnation of the Property.
G. The Association shall cause the immediate repair, reconstruction or
renovation of any damage to the Common Area, unless a decision not to repair, reconstruct or
renovate is approved by a majority of the Mortgagees.
ARTICLE XIII
ENFORCEMENT
Section 1. Right to Enforce. As long as the Declarant is continuing in the development of
the Property, the Declarant shall have the sole right to enforce the terms and conditions of this
Declaration, provided that such right may be delegated from time to time, in whole or in part, to
the Association. Following the sale of the last Lot by the Declarant,the Association or any Owner
shall have the right to enforce, by a proceeding at law or in equity, all restrictions, conditions,
covenants, reservations, easements, liens and charges now or hereafter imposed by the provisions
of this Declaration or other Association documents, unless such right is specifically limited.
Furthermore, the Declarant and/or the Association shall have the right to enforce any applicable
laws of any governmental authority upon any Owner or Lot failing to comply with said governing
documents or laws. Failure by the Declarant, the Association, or by any Owner to enforce any
29
right, provision, covenant or condition which may be granted by this Declaration shall not
constitute a waiver of the right of the Declarant,the Association or an Owner to enforce such right,
provision, covenant or condition in the future. All rights, remedies and privileges granted to the
Declarant, the Association, or any Owner pursuant to any term, provision, covenant or condition
of the Declaration shall be deemed to be cumulative and the exercise of any one or more thereof
shall not be deemed to constitute an election of remedies nor shall it preclude the party exercising
the same from exercising such privileges as may be granted to such party by this Declaration or at
law or in equity. Notwithstanding the foregoing,the right of an Owner to enforce this Declaration
may be terminated or limited upon a written resolution adopted by a vote of at least two-thirds
(2/3rds) of the Board, upon a determination that enforcement related to a specific violation or
violations would not be in the best interest of the Association.
Section 2. Relief. The Declarant, its successors and assigns, and the Association, shall be
entitled to recover any costs, including without limitation attorneys' fees, incurred in connection
with the enforcement of the provisions of this Declaration or any other governing document of the
Association or any applicable laws of any governmental authority upon any Owner or Lot failing
to comply with said governing documents or laws.
Section 3. Payment of Enforcement Expenses. The cost of any expenses arising out of
any enforcement action as set forth in the Article hereof titled, "ENFORCEMENT", including but
not limited to legal services and court fees, may be paid out of the Annual General Assessment
funds collected by the Association. Such costs shall be subject to recovery from any Owner(s)
determined or found to be in violation, in accordance with the provisions of this Declaration, and
shall constitute a lien on such Owner's Lot, as herein provided.
ARTICLE XIV
GENERAL PROVISIONS
Section 1. Severability; Conflict. Invalidation of any one of the provisions of this
Declaration by judgment or court order shall in no way affect any other provision, which shall
remain in full force and effect. In the case of any conflict between the Articles of Incorporation
and this Declaration,the Articles of Incorporation shall control; in the case of any conflict between
this Declaration and the By-Laws, this Declaration shall control. Notwithstanding any provision
in this Declaration or the By-Laws to the contrary, Declarant shall have the right to appoint a
majority of the members of the Board during the Declarant Control Period.
Section 2. Interpretation. The headings used in this Declaration are for reference and
convenience only, and shall not enter into the interpretation of this Declaration and the covenants,
rights and/or obligations expressed herein. All pronouns used herein, whether used in the
masculine, feminine or neuter gender, shall include all other genders. The singular number shall
include the plural, and vice versa, unless the context requires otherwise.
Section 3. Duration. The covenants and restrictions of this Declaration shall run with and
bind the land for a term of twenty(20)years from the date this Declaration is recorded, after which
time the covenants and restrictions of this Declaration shall be automatically extended for
successive periods of twenty(20) years each.
30
Section 4. Amendment. During the Declarant Control Period, Declarant may unilaterally
amend this Declaration for any reason by recordation of an amendment to the Declaration among
the Land Records and this Declaration may only be amended during such time with the consent of
the Declarant. Furthermore, during such time, the Declarant is authorized to execute any such
amendment on behalf of the Association. After the Declarant Control Period, the covenants and
restrictions of this Declaration may be amended in whole or in part with the assent of more than
fifty percent(50%) of the votes of the Members. Any amendment must be properly executed and
acknowledged by the Declarant or the Association, as applicable, (in the manner required by law
for the execution and acknowledgment of deeds) and recorded among the Land Records.
Section 5. Waivers by Declarant. The Declarant, as the present most interested party in
maintaining the high quality of development which by these covenants is sought to be assured for
the Property, hereby expressly reserves unto itself(so long as these restrictions are in effect) the
unqualified right to waive or alter from time to time such of the herein contained restrictions as it
may deem best, as to any one or more of the Lots, which waiver or alteration shall be evidenced
by the mutual written consent of the Declarant and the then-Owner of the Lot as to which some or
all of said restrictions are to be waived or altered; such written consent to be duly acknowledged
and recorded among the Land Records.
Section 6. Notices. Any and all notices required to be given hereunder to any interested
party, including Members and Owners, shall be sent, in writing, either by First Class United States
Mail,postage pre-paid,or,at the discretion of the Association,by e-mail or facsimile transmission,
to.the address on file with the Association for said interested party. It is the responsibility of all
interested parties to provide the Association with a valid and current address for notice purposes.
Absent receipt of a written notification identifying an address for notice purposes, the street
address of the individual Lot shall serve as the address for notice purposes. Notices shall set forth
the purpose for their issuance, such as the reason for which a meeting has been called or the
necessity of any Assessment levied,and shall contain the date,time and location of the meeting or
occurrence, including the due date of any Assessment levied and any relevant method of appeal.
Notwithstanding the foregoing, Applications and appeals shall be submitted as required in the
Article hereof titled "ARCHITECTURAL REVIEW BOARD".
Section 7. Management Contracts. For such time as the Declarant has Class B membership
status,the Declarant shall have the right to enter into professional management contracts on behalf
of the Association for the management of the Property; provided, however, that in any such
contract entered into by the Declarant, the Association shall have the right to terminate such
contracts,with or without cause,upon thirty(30)days'written notice to the other party and without
payment of a termination fee.
Section 8. Waiver of Negative Reciprocal Covenants. Each Owner, together with any
other person or party that might hereafter claim any interest in the Property or the Additional
Property,irrevocably waives and releases any and all rights to claim a negative reciprocal easement
of any sort over or affecting any property owned by Declarant, including without limitation, the
right to claim that such property is subject to a common scheme of development. While Declarant
currently intends to develop the Property pursuant to the terms and conditions of the existing
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concept development plan, Declarant reserves the right, subject to applicable zoning and other
governmental regulations, to make such changes and modifications as Declarant desires, in
Declarant's sole discretion. Such changes may include, without limitation, changes in housing
styles, external elevations, building materials, lot layouts, and any other development and/or
construction related matters. Further, without limiting the foregoing, until property is annexed
into the community pursuant to the terms of a Supplementary Declaration, or similar document,
no property identified as Additional Property shall be subject to any of the terms and conditions
of this Declaration.
Section 9. County Approval. Certain provisions are contained within this Declaration to
comply with the conditions of subdivision approval applicable to the property subjected to this
Declaration. No supplementary declaration or amendments shall impair the right and authority of
the County to require compliance with the subdivision approval conditions applicable to the
Property without the prior written approval of the County.
Section 10. Dissolution. The Association shall not be dissolved, except pursuant to a
consolidation or merger with an entity formed for similar purposes, or the Declaration terminated,
without the prior written approval of the County. Upon dissolution of the Association, other than
incident to a merger or consolidation, the assets of the Association, both real and personal, shall
be offered to an appropriate public agency to be devoted to purposes and uses that would most
nearly reflect the purposes and uses to which they were required to be devoted by the Association.
In the event that such offer of dedication is refused, such assets shall be then offered to be granted,
conveyed or assigned to any non-profit corporation, trust or other organization devoted to similar
purposes and in accordance with Virginia law. Any such dedication or transfer of the Common
Area shall not be in conflict with then-governing zoning ordinances or the designation of the
Common Area as "open space".
End of Declaration;
Signature Pages and Exhibits to Follow.
32
WITNESS the following duly authorized signature and seal:
FREE STATE PARTNERS, LLC,
a Virginia limited liability company
By:
Name:
Title:
COMMONWEALTH OF VIRGINIA,
COUNTY OF , to wit:
I, the undersigned Notary Public, in and for the jurisdiction aforesaid, do hereby certify
that ,as of Free State Partners,LLC,
whose name is signed to the foregoing Declaration, appeared before me and personally
acknowledged the same in my jurisdiction aforesaid.
GIVEN under my hand and seal this day of , 2016.
My Commission expires:
Notary Public
My notary registration number is
33
EXHIBIT A
Property
All that certain lot or parcel of land, with the improvements thereon and appurtenances thereto
belonging or in anywise appertaining, situated in Albemarle County, Virginia, containing 7.09
acres, more or less, more particularly described on a plat made by Brian S. Ray, Land Surveyor,
Inc., dated February 2, 2012, and recorded in the Clerk's Office of the Circuit Court of Albemarle
County, Virginia, in Deed Book 4131, pages 192 through 193, and being all of the same property
conveyed to Free State Partners, LLC, a Virginia limited liability company, by deed from Phillip
E. Brown, Sr., and Barbara J. Brown, husband and wife, dated August 13, 2014, and recorded
August 29, 2014 in the aforesaid Clerk's Office in Deed Book 4530, page 216.
34
Err ‘„i
Checklist for Maintenance Agreements
File # Project Name:
14-317 Instrument evidencing maintenance of certain improvements.
If the subdivision will contain one(1)or more improvements that are not to be maintained by the county or any
authority or other public agency,the subdivider shall submit with the final plat an instrument assuring the
perpetual maintenance of the improvement, as follows:
A. The instrument shall, at a minimum contain:
❑ (1)Identify the plat to which the instrument applies; if the plat has been recorded, the identification shall
include a deed book and page number.
❑ (2) State that the improvement will be maintained in perpetuity.
U (3) State that the improvement will be maintained to a standard that, at a minimum, assures that it will
remain in substantially the condition it was in when approved by the county; for a private street, shared
driveway, or alley,the instrument also shall state verbatim: "The travelway shall at all times be
maintained so that it is safe and convenient for passenger automobiles and emergency vehicles at all
times except in severe temporary weather conditions."
❑ (4)If the instrument pertains to the maintenance of one or more private streets, alleys or shared
driveways, it shall define,"maintenance"by stating verbatim: "For purposes of this instrument,
`maintenance' includes the maintenance of the private streets or alleys, and all curbs, curbs and gutters,
drainage facilities,utilities, dams,bridges and other private street improvements, and the prompt removal
of snow,water, debris, or any other obstruction so as to keep the private street or alley reasonably open
for usage by all vehicles, including emergency services vehicles."
❑ (5)Describe the condition of the improvement when it was approved by the county.
U (6) Identify the timing or conditions warranting maintenance of the improvement.
U (7) State a means to collect funds necessary for the cost of maintaining the improvement; at a minimum,
the means stated shall include the right of any landowner subject to the instrument to record a lien against
a non-contributing landowner,to bring an action at law to collect the funds, or both.
U (8)Describe how maintenance costs will be prorated among the landowners subject to the instrument
(e.g.,"equally,"or on a percentage basis); if any lot within the subdivision may be further divided,the
instrument shall also describe how maintenance costs will be prorated among the landowners after
division.
U (9) State verbatim: "No public agency, including the Virginia Department of Transportation and the
County of Albemarle,Virginia,will be responsible for maintaining any improvement identified herein."
B. The instrument shall be subject to review and approval by the county attorney and shall be in a form
and style so that it may be recorded in the office of the clerk of the circuit court of the county. The agent
may require that the instrument be on a form prepared by the county attorney.
C.For purposes of this section,the term"to maintain," or any derivation of that verb,includes the
maintenance, replacement, reconstruction and correction of defects or damage.
D.Nothing in this section shall affect the rights of the county reserved under section 14-440.
1
Nitie
Albemarle County Tax Map 06100-00-00-12600
DECLARATION
The PRIVATE STREET MAINTENANCE AGREEMENT (hereinafter,the
"Agreement") is made this day of April, 2016,by Free State Partners, LLC and its
successors and assigns (hereinafter,the "Declarant"), whose address is PO Box 645,
Charlottesville, VA 22902.
WHEREAS, the Declarant(s) is/are the owner(s) of a parcel of land known as
Albemarle County Tax Map 62 Parcel 8 pursuant to the plat/deed in Deed Book 4530,
Page 216; Deed Book 4131, Page 192 and 193 (Plat); and
WHEREAS, Tax Map 62 Parcel 8 will be subdivided by the Declarant into Lots 1
through 27, as shown and described on a plat by Roger W. Ray&Assoc., Inc., dated
December 23, 2015 and Revised , a copy of which is hereto attached and made
part of this Agreement (hereinafter,the "Plat"); and
WHEREAS, the access easements shown on the Plat and identified as"Free State
Drive 36' Private R/W" and"Fallow Hill Court 36' Private Road"will be new or existing
thirty-six (36) foot wide non-exclusive ingress and egress easements (hereinafter, the
"Streets") for the use and benefit of Lots 1 through 27 shown on the Plat; and
WHEREAS, the Declarant desires to assure the perpetual maintenance of the
Streets for the benefit of the future owners of the Lots and their successors and assigns
(each an"Owner" and collectively, the "Owners").
NOW,THEREFORE, for and in consideration of the premises and the
undertakings contained herein, the Declarant hereby imposes upon Lots 1 through 27 the
Streets to be maintained as follows:
MINIMUM STANDARD: The Streets shall be maintained with a minimum twenty-five
(25) foot wide asphalt road and two (2) foot concrete curb and gutter and maintained in
perpetuity to substantially the same condition as it was in when initially approved by the
County of Albemarle, Virginia. The travelway shall at all times be maintained so that it
is safe and convenient for passenger automobiles and emergency vehicles at all times
except in severe temporary weather conditions; provided,however, that the Streets shall
not be required to meet the standards for acceptance into the secondary system of state
highways for the State of Virginia to the extent that such standards may exceed the
requirements established by the administrative code of the County of Albemarle,
Virginia.
MAINTENANCE: For purposes of this instrument, `maintenance', includes the
maintenance of the private streets or alleys, and all curbs, curbs and gutters, drainage
facilities, utilities, dams,bridges and other private street improvements, and the prompt
removal of snow, water, debris, or any other obstruction so as to keep the private street or
alley reasonably open for usage by all vehicles, including emergency services vehicles.
The term"to maintain," or any derivation of that verb, includes the maintenance,
replacement, reconstruction and correction of defects or damage.
COST OF MAINTENANCE: Declarant shall be responsible for the cost of the
maintenance of, and or repair to all the 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.
WHEN TO MAINTAIN: After the initial construction of the Streets, any further
construction,maintenance or repair shall be undertaken when deemed appropriate by the
Declarant, provided that in the event that one of the Owners determines that the Streets
are not safe and convenient for passenger automobiles and emergency vehicles at all
times except in severe temporary weather conditions and such Owner gives 30 days prior
written notice to the Declarant, such Owner may commence or contract for maintenance
or repair to bring the Street to the minimum standard and the charges therefore shall be
the responsibility of the Declarant and its successors and assigns.
IN WITNESS WHEREOF, the Declarant has caused this Declaration to be
executed on its behalf by its duly authorized agent.
BY:
Free State Partners, LLC
Name: Jess W. Achenbach
Title: Manager
STATE OF VIRGINIA AT LARGE
CITY/COUNTY OF , to-wit:
The foregoing Declaration was
acknowledged before me this day of , 2015, by Free State Partners,
LLC.
Notary Public
My commission expires: