,. .,

DECI~RftTION OF COYENANTS, CONPITIONS. AND RESTRICTIONS

FOR

DRY RUN COMMONS SUBDIVISION

prepart!lld By

J. Lee Van Metre; Jr. Steptoe , Johnson

126 East Burkt!ll street p.O. Box 26:!9

Ma~t1nsburg, WV 25401

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TABLE OF CONTENTS

I. DEFINITIONS

1. Area of Common Responsibility ••. 2. Articl~s ot Incorporation; ArticlsG 3. Association •..•••• 4. Base Assessm8nt ..... 5. By-Laws......... 6. class Hen Control Period. 7 • Common Area • . • 8. Common Expanse .. 9. Community Standard . • 10. Concept Plan. • . .• 11. Declarant ..... . 12. EXClusive COmmon Area 13. General Common Area 14. Kember •. 15. Mortgage.. • 16. Mortgagee .• 17. Mortgagor .• 18. Neighborhood .• 19. Neiqhborhood Assessment 20. Neighhorhood Expenses 21. Owner. . . . . . 22. Parcel Developer .. 23. Person ...... . 24. Properties •.••. 25. sp8cial Assesam@nt. . 26. Supplemental oeClaration. 27. unit .•.••..•.••

II. PROPERTY RIGHTS

III.

1. 2.

MEMBERSHIP AND VOTING RIGHTS

Membership. Voting .•

IV. MAlNTENANCE

1. Association's Responsibility. 2. Owner's Responsibility ...

V. INSURANCE AND CASDALTY toSSES

1. Insurance ....... . 2. Individual Insurance .•• 3. DamagG and Destruction .. 4. Disbursement of Proceeds. 5. Repair and Reconstruction

VI. NO PARTITION

VII.

VIU.

1.

2.

3. 4. 5.1. 5.2. 5.3.

CONDEMNATION

ANNEXATlON OF ADDITIONAL PROPERTY

Annekation Without Approval of Class "An KGmberahip. • . • • . • . • • . • • • Annexation With Approval or cla •• "A R

Membership. • . • • • • • • • • • • . Acquisition of Additional C6mmon Area bendment . . • • . • . . . . . • Development Rigbts. . • • . • • . Limitations on Developm8nt Rights Phasinq of Development Rights

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V. DRAINAGE. No lot owner shall impede or alter the flow of storm-water as designed by the project engineer and built by the deve loper.

W. SIGHT DISTANCE AT INTERSECTIONS. All corner lots shall be landscaped so as to-permit safe sight distance at the street cor­ners.

X. ARTIFICIAL VEGETATION, EXTERIOR SCULPTURE; ETh No artificial vegetation shall be permitted on the exterior of any property. Exterior sculpture, fountains; flags and similar items must be approved by the architectural review committee.

·Y. USES IN COMPLIANCE WITH THE bAW. No immoral, improper, offen­sive;-Drunlawful use may be made of the property. All uses shall comply with the local, state and federal laws.

loll. ..,

5.4. Speoial Declarant Rights •••••.•••• 5.5. HOdels, rncluding Model Homes and homesites,

Sales Offices, and Manage.ent Oftices • . • 5.6. Construction; Declarant·. EaS8ment •. 5.7. signs and Marketing •••.••••.• 5.8. Declarant's P8rsonal Property •..•. 5.9. Deolarant Control of the A •• ociation •• 5.10.Limitations On Speoial Declarant Rights •••. 5.11.Interference with Development Rights or Special

Deolarant Rights. • • . • • • • • . • • • • • .

IX. RIGHTS AHD OBLIGATIONS OF THE ASSOCIATION

1. Common AJ:'ea • • . . • . . . . . . • 2. Personal Property and Real property for

Common USe. . • . . • 3. Rules and RegUlations 4. Implied Rights ..•• 5. Governmental Inter8BtB.

X. ASSESSMENTS

1. Creation ot .Assessments • • • . 2. Computation of Base Asseaament. 3. Special Assessments ..••• ~ 4. Lien For Assessments. • • • . . 5. Capital Budget and Contribution • 6. Date of Commencement of Assessments • . 7. Subordination of the Lien to Institutional

First Mortgages • • . 8 . Exempt Property . • • 9. Assessment Li.itation

XI. ARCHITECTURAL REVIEW

1. Applioability.............. 2. Duties.................. J. Application for Approval of Improvements. 4. BssiG for Approval of Improvements. 5. Form of Approval and Denials ••••• 6. Proceeding With Work. • • • • . • •• 7. Failure to Complete work. • • • • . • 8. Determination of Compliance • • ••. 9. Failure to Remedy the Non-Compliances 10. Waiver. . • . . . ••.•••• 11. Estoppel Certificate. • • . .• 12. Liability. • ••.•••••• 13. Non-Applicability to Declarant. 14. General Exterior painting •••

XII. USE RESTRICTIONS ON USE, ALIENATION, AND OCCUPANCY

1. Primary U~e and Occupancy Restriction ,. Other U •• and Occupancy Restriction •. 3. Re~trictions on Alienation •..••.

XIII. MORTGAGEE PROVISION

1. ,Notices at Action • 2. special FULMC Provision 3. No Priority •••••. 4. Notice of Association. 5. Am"nc:lment by Board. • • . •.• 6. Applicability of Article XIII • ,. FailuJ:'e of Mortgagee to R8spond 8. Developm"nt Right... . • • • •

.. XIV. ADDITIONAL DECLARANT'S RIGUTS

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XV. PARTY WALLs

1. 2. 3. 4. 5. 6.

XVI.

1. 2. 3. 4. 5. 6. 7.

General Rule of Law to Apply. • ••• Sharing of Repair and Maintenance • • Destruction by Fire or Other Casualty W~atherproofin9 • • • . . . • • • • • Right t.o contribution Rung with Land. Arbitration • • • • . •• .., •

EASEMENTS. RIGHTS-OF-WAY, AND LICENSES

Easement for Access • • . Utility Easements • • •• Easement. . . . • . . . . Easements of Enoroachment . . Easem~nts for Utilities; Etc.. . £aeement for Access Over prlvat& Streets. Zero Lot Line Eas~ment. . . . • • . . . .

XVII. GENERAL PROVISIONS

1. 2. 3. 4. 5. 6.

Term. . . . . . Amendment . • • Indemnification Severability •• Right of Entry. Litigation. • •

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sghedule

"A"

"D"

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TABLI Of gXHIBITS

Subject Matt!!r

Land Initially Submitted

Land SUbject to Annexation

"C tt By-LaWS of Dry RUn Commons Subdivision ·Unit Owners ASSociation, Inc.

"D" DevelOpment Plan

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page First Appearing

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DECLARATION OF COVEN~NTS, CONDITIONS, AND R~STRICTrONS

FOR

DRY RUN CO""ONS SUBDIVISION

THIS DECLARATION OF COVEN~NTS, CONDITIONS, AND RESTRICTIONS is made an4 dated this 12th day of July, 1993, by Rook Cliff Partners Limited Partnership, a We"st virginiA limited partnership (nerelni!'ltt~r referred to as "Oeclarant"), ana consented to by the undersigned Owners of property;

Deelorant il!! the owner or is acting- with the consent. of the owners of the real property described in schedule nAn atta.ched hereto and incorporated herein by r~t~rence. Declarant intends by this Declaration to impose upon the Properties (as defined herein) mutually beneficial restrictions under a general plan of improvement for the benefit of all owners of real property within the properties. Declarant desires to provide .II flexible and reasonable procedure for the overall development of the Properties, and to establish a method fot'" th~ Administration, m.aintenance, preservation, use and enjoyment of such properties as are now or hereafter subjected to this Declaration;

Oeclarant hereby declares that all of th~ property desoribed in schedule itA" and any additional property as is hereafter sUbject~d to this Declaration by supplemental Declaration (as defined herein) shall be held, sold, and conveyed SUbject to the following easements, restrictions, covenants, conditions, liens, and assees~ents which are tor the purpose or protecting the value and desirability of and Which shall run with the real property subjected to this oeclaration and which shall be binding on all parties having any right, title, or interest in the deserib~d properties or any part thereof, their heirs, successQrs-in-title, and assigne, And shall inure to the benefit of each owner thereof. Thla Declaration dOQS not and 1s not int~nded to create u condominium within the meaning of the west Virqinia Unitorm Common Interest ownersnip ~ot, Chapter 36B, west virginia statutes (the l\ct), et seq. This Declaration is intended to create a common interest community and planned community as defined in t.he Act, but the planned community shall not be SUbject to the Act pursuant to Chapter 368, Artiole I, Seotion 203(2) of the Aot exoept Artiole I, Sections 105, 106, 107, and 114 of the Act.

Artiole I D~finitions

section 1. IIArea of CQmmon ReSPQo!Jibt] ttyti shall mean and refer to the Common Area, together with those areas, if any, whioh by the terms of this Deolaration beoome the responsibility of the Assooiation. The offioe of any property manager employed by or contracting with the Association, if located on the Propertiea, 01,"

any pUblio right-of-way within or adjacent to the Properties, may be ~art of t~e Area at Common ResPQn~lbl11ty.

Section 2. "Articles of IncorporAtion" o:t:' "Articles" shall m~an and refer to the Artioles of Inoorporation of Dry Run Commons Subdivision Unit OwnerS Association, Inc:, as filed with the seoretary of state of the state of west Virginia.

s~ction J. "Association" shall mean and refer to Dry Run Commons Subdivision unit Owners Association, Inc., a Wel!!t Virginia corporation, itl!i successors and assigns. The I'Board of pireqtors" or '.~n shiilllll be the elected body having its normal meaning unde:t:' west Vir9inia Corporate Law. The use of the t~rm "associationti or "associations" in lower cas .. shall refer to any condominium .IIssociation or oth~:t:' owners 81!il!ioci.lltion having jurisdiction over any pDrt ot the Properties.

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section 4. "Pap' Assessmen!;" .hall mean and refer to ass ••• ments levied against all Units 1n the Prop.rti •• to fund co .. on Expenses.

section 5. nBy.LftWS" shall mean and reter to the By-laws of Dry Run commons SUbdivision Unit OwnI!!U,"S Association, Inc., attached hereto as Schedule "Cit and incorporated herein by reffu,:'enee, as they may be amended from time to time.

section G. "Closs "P" control Peripd" .hall ~ean and refer to the periOd of time du~lng which the Class He" .ember 1. entitled to Appoint a majority of the m~mbers ot the Board of Oirectors, as provided in Artic~e tIl, Section 2, of the By-L~WS.

Section 7. "Common Arfton shall be an inClUsive term referring to all General Common Area as defined herein. The initial Common Ar@a ~h811 be conveyed to the Assooiation prior to the conveyance of a unit to any Unit purchaser other than a builder or developer holding title for the purpose of develop~ent and resale.

Section 8. II'<.9mmoo EXPanse" shall mlE!!An and includt!ll the actual and estimated expenses incurred by the As.oeiation tor the general benefit of 811 unit Owners, including any reasonable reserve, bll as may be found to be necessary and appropriatt!ll by the Board. pursuant to this Declaration, the By-Laws, ancl the Articles of Incorporation of the Association.

Section 9. "community Standard" shall mean the standard of construction quality and design, conduct, maintenance, or other activity gener811y prevailing throughout the Properti.s. Such standard may be more specifically deter.ined by the BOArd of Directors and the Architectural Control Committt!ll8.

seotion 10. IIConcept Plan" shall mean and. reter to the concept Plan for the development of the propel,"ty described in Schedule prepAred by p. c. DiMagno, £nqineers - Surveyors, dAted April 30, 1992; as approved by ~he city or Martinsburg, weet Virginia Planning Commission, on May 6, 199~, aa it may be amended fro. time to time; a copy of which is annexed her8to as Schedule ~Dn. The attached. Schedule contAins the modification that Phase I is shaded and the addition of the statements "Subject to Dev.lopm"nt Rights", "Need Not Be Built", "Development Rights Rt!IIserved In All Areasl!.

Section 11. HDeqlarant.. .hall Jlt!IIan and reter to Rock Clift partnera LilDihd Partnership,a west Virginia lboited p8rtnerBhip, or its sucoessors, 8uccessors~in-title or aaslqns who take title to any portion of the property described on Schedules "An or "Bn for the purposes of development and sale and are dt!llsiqnated ali the Declarant hereunder in a rllicorded instrulnent executed by the immediately preceding Declarant.

St!IIction 12. "GenITal Common Area" shall mean All real and personal property which the ASBociation now or hereaftar owns or otherwise holds fOr the common use and enjoyment of All OWners.

Section 1J. "Member" shall mean and refer to a Pt!IIJ;'son entitled to membership in the Association, as provided herein.

section 14. nMQrtgage n .hall mean and refer to a permanent or construction .ortgaqo; a deed of tl,"ust, a deed to secure debt, or any other form of security deed~ including- any collateral security documt!llnts executed in connt!llction therewith.

Section 15. 'HMgrtgage." ahall m.an and refer to a be:neficiary or holder of a Mort9aqe.

section 16. "Mortgagor" shall a'ean and refer to Any Person who gives a Mortgage.

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-, Sectioh 174 "~~ 8hall mean and rafer to one or more ~er50n~

who hold the r@cot'd title to any unit which i. PIU"t of the Propert.ies, but excluding in ~ll cases tiny party holdlnq an inte~e~t merely as security for the p~rfor~ance of an obligation. It a Unit is sold under a recorded contract of sale, and the contract sp@citically BO provides, then the purchaser (rather than the fee owner) will be considered the Owner. It a Unit 1s sUbject to a w~itten lease with a term in excess of one y~ar and the LeaSE!: specifically 90 provides, then upon filing II copy of the ~aGe with the Board of Oirectors the lessee (rather than th8 tee owner) will be considered the Owner.

Section 19. I'Pii!rcel pevelQpern means any d.eveloper who purchases land within the Propel"ties (as defined in this Article I) for the purpose of dev~lopment and sale.

s~etion 19. "~" m@8ns a natural person, a corporation, " partnership; a trustee, or other legal entity.

Section 20. "Propertles n shall mean and refer to the property described in Schedule "A" attached hereto I together such additional Pl"Operty as is hereaftel" sUhjected to Declaration by Supplemental Declal"ation.

real with this

Se~tion 21. IIspecial Ass(!ssment" shall mean and refer to assessments levied in accordance with Article X, section 5, ot this Declaration.

Section 22. "Supplemgntal pgclarati9pn shall mean any a~endment or supplement to this Declaration which subjects additional property to this Declaration or impose~, expressly or by reference, ~ddition8.1 restrictions and obligations on the land de.l!iicribed therein, Or both.

Section 23. 1'l1.DJ.t" shall mean Ii portion ot the Properties. wheth~r developed or und~veloped. 1ntehded for development, use, and occupancy 8S an attache.d residence tor a sinqle family, and shall, unl~ss otherwise. specified, include within its meaning (by way of illustration. but not limitation) townhouse units, cluster homes, patio ~nd zero lot line homes; as we.ll as vacant land intend~d for development as suoh, all 8S may b@ developed, used, and defined as herein provided or as provided in Supplemental Declarations covering all or a part of the properties, and ~h811 include those portions of the ·Propert1es develop"d liS commercial units as are specifically ~ubjected to this Oeclaration AS part of a mixed~use/residential l"@gime. commercial Units located outside of Dry Run Commons Subdivision but which are sUbject to assessment for road maintenance: purposes are included in this definition solely tor the purpose of assessment and access tor inqress to and e9~ess from such comm~~e1al unit. All other riqhts And privileges pe.rtaining to such commercial units are to be s~t forth in a separate Declaration for the Commercial Areas in the Dry Run Commons D8velopment.

The t@rm Unit shall include all pot;'tiQns of the lot owned inclUding any structure thereon. In the case of any structure which contains multiple dwelling units, eaoh dwelling unit shall be deemed to be A ~eparate Unit. The term DWelling unit 8S hereinafter used shall mean and refer to any "building or portion of A buildin9 situated upon the Properties desiqned and intended for use and oocupancy as a residence by a single family.

In the case of a parcel of vacant land Or land on which improvements are under construction,' the parcel ehall be deemed to contain the number of Dwelling unit, designated fOr such pa~eel on the Improvement Loe~tion Permit 1sDued for such Unit or the site plan approved by Declarant I which ever is .ore recent. Aft4!:r construction is completed the Association Shall f~om time to tl~e physically inspect and dete.:mine the numher of Dwelling. Units contained within a unit.

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ArUcle II property Right"

Ev@ry Owner shall have a right and easement Of enjoyment in and to the Connaon Area, subject to this Declaration ali it lDay be amended from time to tim, and to any restrictions or limitations contained in any deed conveying Buch property to the Association. Any Owner .ay delegate hi_ or her right of enjoyment to the member. of his oX' her family, tenantlil, members and social lnvitees, as applicable, subject to reasonable regUlation by the Board and in accordance with procedures it may adopt. An Owner who lease" his or her Unit ahall be deemed to have delegated all .uch right. to the Unit'. lessee.

Declarant reserves the right to amend this Declaration unilaterally at any time so long as it holds an unexpired option to expand the community pursuant to Article VIII hereof, without prior notice And without the consent of any Person, tor the purposl of removing certain portions of the properties then owned by the DeclArAnt o~ its affiliates or the Association from the proviaions of this Declaration to the extent 0~1ginal1y included in error or as a result of any changes whatsOever 1n the plans for Dry !tun Commons subdivision and Dry Run Commons Development desired to be effected by the Declarant, provided such withdrawal is not unequivocally contrary to the overall, uniform scheme of d.evelopment for Dry Run Comfnons subdivision and Dry Run Commons Oevelopment.

Declarant further reserves the right to dedicate all or any part ot the Common Area, including but not limited to all streets and ways and parks and other open area to the City ot Martinsburg, west Virqinia, or in the case of the parks and other open areas to the city of Mat;'t.insburg Park and Recreation Board, to be held and maintained in accordance with law.

Article III M.mbsrlbip gnd vgting Rigbt,

Section 1. M@mbership. Every Owner, as defined in Articl. I, .hall be deemed to have a me.bership in the Association.

No owner, whether one (1) or more Persons, shall have mora than one (1) membership per Unit owned. tn the event the Owner of a Unit is mOre than one (1) Person, votes and rights of use and enjoyment shall be as provided herein •. The ~ights and privileges of membership may be exercised by a Member or the Member's spouse, subject to the provisions of this Declaration and the 8y-l.aws. The me~bership rights of a Unit owned by a corporation Or partnerBhip shall be exercised by the individual designated from time to time by the Owner in a written instrument provided to the secretary, subject to the provisions of this Declaration and the 8y-l.aws.

Section 2. Vgting. The ASBociation .hall have two (2) classes of m~mbership, Class "AM and Class HaH, as follows:

(a) Class "An. Class "A" Members shall be all Owners with the eKception of the Class "Dn Mamber, if any.

Class IIA" Memb8rs ahall be entitled to one (1) equal vote for each Dwelling unit in which they hold the intereet required for member.hip. under Section 1 hereof; and there shall be only one (1) vote per Dwelling Unit.

In any .ituation -where a Kember 111 entitled peJ:'sonlllly to exercise the vote for his Unit and more than one (1) person holds the interest in such unit required for •• mbership, the vote for SUch Unit .hall be exercised as those persons determine among thetnselves and advise the Secretary, of the Association in writing prior to any meeting. In the absence

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., .. of such advice, the Unit's vote .hall be susp.ndod ir mora eh~n one (1) person seeks to 8xercise it.

(b) cla.ss "a". The Class "8" Mt:!ntbers _hall be the Declarant. The rights of the Class "DR Members, including the rights to approve actions taken under this Declaration and the By­Laws, ll~e specifi~d elsewh~re in the oeclaration and the By-UJ.w$. The Cl~ss "B" Members Shall be ehtitled to appoint a majority of tht:! .embers of the Board of Directors during the Class "8" Control period, as specified in Article III, section 2, of the By-Laws. After termination of the Class "B" Control period, the Class "8" Member shall have a right to disapprove actions Of the Board of Directors and any committee as provided in Article III, Section 3, of the By"'Laws. The Class ··0" memb!:!!rshlp shall terminate and become conv~rted to Class '·A" Memb@rship upon the earlier of:

(i) two (2) years after expirat.ion of the Class "al. Control Period pursuant to ArtiCle III of the 8y-Laws~ or

{iiI when in its discretion, the Declarant so determines.

Article IV Haintenance

section 1. ~iation's Responsibility. The Association shall maintain and k!:!!~p in good repair the Area of COMmon Responsibility, such maintenance to be funded as hereinafter provided. This Dlaintenance shall include, but needs not be limited to, maintenance, repair, and replacement, subject to any .insurance then in ·effe.ct, of all landscaping and other flora, structur!:!!s, and improvements situated upon the Common Areas, including, but not limite~ to, drain~ge systems, recreation and open space, utilities, traftic control devices. the pedeetrian walkih9 p~th syst~m, such emergency shelter~ which Declarant or ~he Associ8tion may construct, all private streets within the Properties, and such portions of ~ny addition81 property included within the. Area of Common Responsibility a~ may be dictated by this DeClaration, or by a contract or agreement for maintenance thereof by the Association.

Except as otherwise specifically provided herein, all costs associated with mainten8nce,· repair and replacement of General Common Areas shall be a Common Exp!:!!nse to b8 allocated among all units as p8rt of the Base Assessment.

Th@ Association may, in the discretion at its Board, assume the maintenance responsibilities of a Neighborhood set out in this D!:!!claration or in any Supplemental Deolaration or declaration subs!:!!quently recorded which creates any Neighborhood Association upon all or any portion of the Properties. In such event, all costs of such m~intenanc8 shall be ass@ssed only against the Units within the Neighborhood to whioh the services are provided. The assum~tion of re~ponsibl1ity may take placo .ith9r by cont~eet or agreement or because, in the opinion ot the Board, th~ level and quality of service then being provided is not oonsistent with the Community-wide Standard of the properties. The provision of services in accordance with this section' shall not constitute discrimination within a cI8SS.

A Neighborhood Association Or the Association shall provide exterior maint~nance upon each Town.HouS8 Unit which is not part of a condominium regime as follows: p8int, repair, replace and care (inCluding- lawn care) for J:oofs,_ qutters, downspouts, @xterior building' stu:faces, trees, shrubs,: yards, grass, walks and other exterior improvements. The. Common Expenses a.ssociated with the costs of such exterior maintenance ahall be assessed to the Town House unit and units upon which maintenanoe i9 done and shall be

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~dded to and become a P8rt of the Neighborhood Asse •••• nt to which such unit or units are subject.

The Association may maintain property which it dot!lll! not own, including, wit~out limitation, property d8dicAted to t~e PUblic, if the Board of Dirt!llctors determines that such maintenance is neC&8Bary Or desirable to maintain the Community~wlde Standard.

Any person lluthorl~ed by the Association shall have tht!ll right ot access to all portions of the propertit!lls for the purpose ot performing exterior ~alntenance: for the purpose of correct1nq any condition threatening a unit or tht!ll Co~mon Element., and for the purpose of performing installations, altt!llrations or repairs, and for t~e purpose of reading, repAiring, replacing utility meters and related pipes, valves, mete~8r wires and equlpm&nt, provided that requests for entry are mad8 in advance and that any such entry is at a tim& r&asonably convenient to the affected Unit Owner * In case of An emergency, no such request or notice is required and such right of @ntry shall be imm@di~te, and with suc~ force as is llpparf!lnt.ly necessa.ry to 9ain entrance, whethf!lX' or not the Unit Owner 1s pre Bent At the time.

£ach unit Owner will reimburse the Association tor any damages to the Common El~ments caused intention811y, negligently, Or by his or her failure to properly maintain, repair, or ~ake replacements to his or her unit. The AssociAtion will be responsible tor damage to units caused intentionally, negligently, or by its failure to maintain, repair, or make replacements to the Co.mon Elements. If such f!lxpense is caused by misconduct, it will b. B8seSsed following notice. and hll!!l8.ring. In cases where the Association has gAined entrAnce to a unit in response to an emerqency, the Association shall be responsible only for securing t~e premis •• following the emergency, and shall not be responsible to the Unit Owner for any damages caused to t~e unit in gaining entrance to the Unit or in otherwise responding to the f!lmergency. The Unit owner ahall be responsible for makinq ~ll repairs to the Unit which result from the emergency and shall hold the Association harmless from any damages reBulting t.herefrom.

section 2. Qwner's ResponSibility. Eac~ owner shall maintain his or her Unit and all structures, parking areas and other improvements comprising t~e unit in a manner consistent with the CommUnity-Wide Standard and all Applicable covenants. If ~ny Owner tails properly to perform his·or ~er maintenance respon8ibility, th8 Association may perform it and assess all costs incurred by t~e Association against t~a Unit and t~e owner t~ereot in accordance with Article X, Section 5, of this Declaration; provided, however, except w~en entry is required due to an emergency situation, the Association shall afford the OWner reasonable notice and an opportunity to cure t~e problem prior to entry.

IIrticle v Insyronce Bod CAsyalty IQI'IB

St;!ctiQn 1. ID§tlrllnc§. The AstJooiation·. BOar4 of Direotors, or its duly 8uthorizf!ld Agent, shall have the autho~ity to and shall obtain blanket All-risk ca.ualty insurance, if' re8aonably available, tor all insurable improvements on the Common Area. If blanket all-risk coveraqe is not reasonably available, then at a minimum an insurAnce policy providing fire and extended coveraqB shall be obtained. This In.uranc. shAll be 1n an amount sufficient to cover one ~undred (lOOt) p8rcent of t~. replacem8nt cost of any repair or reconstruction in th. evant af da.age or destruction from any insured ~a.ard.

The Board s~all 111.0 obtdn a pUblic liability policy covering the Common Ar@A, the ASGociation and it. members fo~ all da.aqe or injury caused by the negligence of the Association or any of its Memhers or agents. The pUblic liAbility policy s~all have a't least

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· . ~ Two Million ($2,000,000.00) Oollar single pe~son limit as respects bodily injury and property damage, a Five MilliQn ($5,000,000.00) Dollar limit. per occurrence, it reasonably available, and One Million ($1,000,000.00) Dollar minimum prop@rty d8ma9" limi t.

pr~mlums for all insurance on the Common Are. shell be Common £xpen~es of the ,.asociation and shall be included 1n the Base .Assessment, as defined in Article I and as more particularly de8cribed in Article X, Section 1. The policy may contdn a reasonable deductible, and, in the case ot casualty insurance, the amount thereot shall be added to the face amount of the policy in determining whether the insurance at least equals the full replacement cost. The deductible shall be paid by the party who would be liable for the loss or repair in the absence of insurance and in the event of multiple parties shell be allocated in r~l.tion to the amount each partyis loss bears to the total.

All insurance coverage obtained by the Board of Directors shall be. written in the name of the Association as trustee for the respective benefitted parties, as fUrther identified in (b) below. Such insurance shall be governed by the provisions hereinAfter set forth:

(a) All policie~ shall be writt@n with e company licensed to do bUSiness in west Virginia which holds a Best's rating of "A~ or better and is assigned a financial size category of XI o~ larger as established by A. H. 6est Co~p8ny, Inc., if reasonably Available, or, if not available, the most nearly equiva18nt rating.

(b) All pOlicies on the Common Area shall be for t~e benefit of the Association, its Members, and Mortgagees providIng construction financing on the Common Area, as their interests ~~y appear.

(c) Exclusive authority to adjust l05se$ under policie~ by the A.ssociation on the properties shall be vested in the Associa.tion's Board of Directors; provided, however, nO Mortgagee having a.n interest in such losses may be prohibited from particlpatin9 in the settlement ne90tiations, if any, related thereto.

(d) In nO event shdl the insurance coverage obtained and malnt~inlBd by the l\ssociationls Board of Directors hereunder be brought into cont~ibution with insurance purchased by individual Own8~s, occupants, or their Mortgagees.

(e) All cesualty insurance policies shall hav .. an intlation guard endorsement, it reasonably available, and an agreed amount endorsement with an annual review by one oX' more qualified persons, at least one of whom ~ust b& in the real estate industry and familiar with construction costs in Berkeley County, west Vir9inia.

(f) The Association's Board of Directors 5hall b. required to make every reasonAble effort to ~ecure inau~anc8 policies that will provide for ~he following:

(1)

(li)

a waiver of subrogation by the insurer AS to any claims aqainst th& Association's Board of Directors, its manager, the Owners, And their re5pective tenants, servants, agents, and. guests;

a waiver by the insurer of its rights to repair and reconstruct, inatead of pay 1n9 CAsh.,

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(iii)

(iv)

(v)

til statement that no policy lIIIA.y b. canceled, invelidated, suspended, or subject to non-renewal on account of anyone or more individual Own8r_;

a statement that. no policy may b. cAnceled, invalidated, suspended, or subject to non-renewAl on account of the conduct of any director, officer, or II:!!mployee of the Associlltion or its duly authori~E!d ~anager without prior demand in writing delivered to the Association to Cure the defect and the allowance of a reuonabl.. time thereafter within wllich the defect may be cured by the Association, ita manager, any Owner, or Mortgagee;

that any· "other insurance" clause excludes th.. individual Owners' consideration; and

in any policy policies trom

(vi) that til" Association will be give" at l"ast thirty (30) days' prior written notice of any cancellation, substantial modification, or non-renewal.

In addition to the oth8r insurance r8quired by this Section, the BOard shall obtain, liS a Common Expense, worker's compensation insurance, if And to the extent required by law, directors' and officers' liability coverage. it reasonably available. A tidelity bond or bonds on directors, officers, e~ploy&es, and other Persons handling or responsible for the Association's funds, if reasonably AVAilable, and flOOd insurance, it required. The amount of fidelity coverage shall be d&termined in the directors' best business judgment but, if reasonably availAble, may not be less than twelve (12) months assessm&nts on All Units, pluS reserves on hand. "onds Shall contain a waiver of all defenses based upon the exclusion of p8rsons servin9 without compensation and shall require at least tllirty (30) days' prior written notice to the Aseociation of any cancellation, substantial modification, o~ non~renewal.

Section 2. Indiyidual Insyrance. By virtue ot taking title to a. Unit which i& subject to the terms of this Decillration; each Owner covenants and i!l9TeeS with all other Ownt!llrs and with the Association that each Owner shall carry blanket ~11-ri8k c8sualty insurance on the unit(s) and structures constructed tht!llreon meeting the same requirements as set torth in Section 1 of tllis Article V tor insurAhce on the co~~on Area. ~aeh Owner turther covenants and agrees that in the event of a partial loss or da.age resulting in less than total destruction Of structures comprising hi8 Unit, the Owner shall proceed promptly to repair- or to raconstruct the damaged structure in a manner consistent with the original construction Or such other plans and specifioations as are approved in aocordance witll Article XI of this Declaration. The OWner shall pay any costs of repair or reconstruction which are not covered by insurance proceeds. In the event that the structure is totally destroyed, the Owner may dt!llcide not to rebuild Or to reconstruct, in which case the Owner ahall clear the Unit of all debriB an<l r.turn it to substantially the natural stat. in which it existed prior to the beginninq of construction and thereafter the Owner shall continue to maintain tile Unit in a neat and attra"tive condition conaistent with tile community-Wide standard.

section 3. Damoge And DegttuctiQn.

'(a) 'Immediately after damage or destruction by fire or otht!llr casualty, to ~ll o~ any part ot the Properties cover@d by insurance written in th8 name ,of the Association, th,e Board of Dirt!llct.ors or it. duly authorized agent ahall proceed with the (ilinq and adjustm~nt of all claims ariSing Und~r such insurance and obtain reliablt!ll and detailed estimate. of the cost of repair or reconstruction of the damaged o~ destroyed properties. Repair or raconstruction, as used 1n this paragrapll •• eans repairing or restoring tile Properties

13

" , ..

to SUbstantially the sa_e condition in which they existed prior to the fire or otl\l:!t'" casualty, allowing tor any chan911!S or lnaprovlI:!tnents necessitated by changes in applicable bUilding Codes.

(bl Any damage or destruction to the Conunon AreA or to the common property of any Neighborhood Association shall be repaired or reconstruoted unless th~ MemberB representinq at 1@8st seventy~tive (75t) p~reent of the total vote of the Association, if Common Area, ahall decide within 8ixty (60) days after the casualty not to r~palr or reconstruct. If for any reason either the amount of the insurance pro~eeds to be paid as a result of such damage Or destruction, or reliable and detailed estimates of the cost of repair or reconstruction, or both, are not made available to the Association within said period. then the period shall be extended until such intormation shall be made av~ilable; p~ov1ded, howev~r, SUch extension shall not ~xceed sixty (60) additional days. No Hortga9~e shall have the right to pArtiCipate in the determination ot whether the damage or destruction to Common Area shall be repaired or reconstructed, except for access streets and ways within the Properti~s; p,rovide:d, however, this prOVision shall not apply to construction Mort9ag~s providing construction tinancing for such damaged property.

(cI In the event t"at it should be determined in the manner described above that the damage Or destruction to the COmmon Area shall not be repaired or reconstructed and no alternAtive improvements are Authorized, then and in that event th4!!ll Affected port.ions of the propertie:s: shall be restored to their natural state and maintained by the Association, in a neat and attract.ive condition consistent with the Community-Wide StandArd.

section 4. Disbursement or pro¢"ds. If tha damage or destruction for which the proceeds of insu~ance policies are paid is to be repaired or reconstructed, the proc4!!IIeds, or such po~tion thereof as m&y be required for such purpose, shall be disbursed in p~yment of such rep~irs or r@construction as hereinafter provided. Any proceeds remaining dter detraying such cost. or repair or reconstruction to th~ CommOn Ar~a shall be retained by and for th~ beneHt of the Association And placed in a capital improvements account. In the event no repair or reconstruction is made, any p~oceeds remaining alter makinq such settlement as is necessary and appropriate with the affected owner" or owner. And th4!!llir "ortgagee(e) as their interests may appear, shall be retained by and for the benefit ot th .. Association and placed in a capital improvements acoount. This is a covenant for the b@nefit of any Mortgagee of a Unit and may be enforced by such Mortgagee.

Section 5. Repair And Recpnstruption. If the damage 01;'

destruction to the COmmon Area fol;' .which insurance proceeds are paid is to be repair@d or reconstructed, and such proceeds are not SUfficient to defra.y the cost that"eot', the aoard or I)irectors shall, without the necessity of a vote of the Members, levy a special ass~es~ent againat all OWner~ on the s~me basis ~~ provided for Base Assessments. Additional asseesments may be made in li~e manner at any time durinq or following the completion of any repair or ~econstruction.

Artiel.. VI No partition

Except as is permitted in the DecI~ratlon or amendm~nts thereto, there shall be no physical partition of the Common Area or any part th~reof, nor sh8.11 ~ny person acqUiring llny interest in the Properties or any part thereof seek any judiCial partition unl~sa the properties haviI:!! been removed from the provisions of this

14

, . DeClaration. This Article shall not be construed to prohibit the Board of Directors from Acqulrin9 and disposinq of tangible personal property nor fro. acquiring title to real property which mayor may not be SUbject to this Declaration.

Article VII CQOdemoltJoD

Whenever all or any part of the COmmon Area shall be taken (or conveyed in lieu of and under threat of condemnation by the Board acting on the written direction of Members representing at least tWo-thirds (2/3) of the to'tal Association vote llnd the Declorsnt, as long as th8 Declarant owns any property described on SChedules ItAn or "8") by any authority having the power of condemnation or eminent domain, each OWner shall be entitled to notice thereof. The award made for such taking shall be payable to the Association as trustee tor all Own&rs to be disbursed as follows:

If the taking' involves a portion of the Common Area on which improvements have been constructed, then, unles8 within sixty (60) d8Ys after such takinq the Oeolarant, so 10n9 as the Oeclarant owns any property d~scribed in Schedules "A" or n8" of this Declaration, and Memb~~s representing at least seventy-five (75') peroent of the total vote of the Association sh811 otherwise agree, the Association shall restore or replace such improvements so taken on the remainin9 land inoluded in the Common Area to the extent lands are 8vailable therefor, in accordance with pl8ns approved by the Board of Directors of the Associ8tion. If such improvements Are to be repaired or restored, the above provisions in Article v hereof regarding the disbursement of funda in respect to oasualty damaq8 or destruction which is to b. repaired shall apply. It the ta~ing does not involve any improvements on the Common Area, or if there is a deoision made not to repair or restore, or if there are net funds remaining aft.er any such restoration or replacement is completed, then such awa~d or net funds shall be disbursed to the Association and used for such purposes a. the ao~rd of Directors of the Associ8tion shall determine.

Article VIII Annexation oC Additional Prooerty

section 1. Annexation withQut Approyal or Closs "An Membership. As the owner thereof, Or it not the owner, with the consent of the OWner thereof, Declarant shall have, the unilateral right, privilege, amI option, fro. ti.e to tim .. at any ti.e until all property described on Sch"dule "B" has been suhjected to this Declaration or December 31, 2017, whichever is earlier, to Bubj8ct to the provisions of this Declaration and the jurisdiction ot the ASBoci8tion all or any portion of the real property described in Schedule "BQ, attached hereto 8nd by reference made A part hereof. Such annexation shall be accomplished by filing 1n the public records of B .. r~eley County, West vir9inia, an a.end.ent to this Decl8ration annexinq Kuoh property. Suoh Supplement81 Declaration Shall be executed by the Declarant and shall not require the con$ent ot Members. Any such annexation ahall be effective upon the filing for record by Declarant of auch Supple.ental Declaration unless otherwise provided ther.in. Declarant shall have the unilateral right to transfer to any other Person the said right, privilege, a~d option to annex additional property which i. herein reserved to De~larant, provided that such transferee or 8ssignee shall be the developer of Ilt least a portion of the real property described in Schedules "A" or RRn and that such transfer is memorialized in a. written, recor:ded instrument executed by the Declar8nt..

Section 2. Annexation With Approval of Clasp "A" Membership. Subject to the consent or the owner thereof, the Association may annex real property other than that described on schedu18 '"8", and

15

following the expi~ation ot the ~19ht in Section 1, any p~op~~ty described on Schedule RSN, to the provisions of this Declar~tlon and the jurisdiction of th .. Association. sucn annexation sholl requir~ the affirmative vot~ of Kembe~s or alte~nat8s representinq o majority of the Class "A" votes of th .. Association (other than those held by Declarant) present .t a meetinq duly called for Buch purpose and of the Declarant, so 10nq as O~clar~nt owns property subject to this Declaration or which may become $Ubj~ct hereto in acoordance with S~ction 1 ot this Article.

Annexation shall be acco .. plish .. d by tilinq of record in the public records of Berkeley county; West Virginia, 8 Supplemental Decla~ation describing the property being Annexed. Any such Supplemental Declar8tlon shall b@ signed by the president ~nd the Secretary of the A.ssociation, and by the owner of the property being annexed, and any such ann~",ation shall be etfective upon filing unless otherwise p~ovided therein. The relevant prOVisions of the By-Laws d@81in9 with reqular or $pecial meetings, AS th~ case may be, shall apply to determine the time required for and the proper form of notice of a.ny meeting called for the purpose of considering annexation Of property pursuant to this Section 2 and to ascertain the presence of a. quorum at such meeting.

section 3. Acquisition ot Additional Common Area. oeclArant may convey to the Association additional real estate; in-proved o~ unimproved; located within the properties described in schedules "A" or "B" which upon conveyance or dedication to the Association sh~ll be accepted by the Association and ther:eafter shall be maintained by the Association at its expense for the benefit of all its MembeJ;'S.

Seotion 4. Amendment. TIlis Article .. hall not be ..... nded without the prior written cons@nt ot Declarant, BO 10n9 as the OeClarant owns any property desm:ibed in Schedules "Allor ,IB" hereof.

Section 5.1. pev~lopmE!nt Rights. The DeclAr<;lnt, by way of explanation and not limitAtion, res~rves fully~ compl~tely, and to the maximum the following Development ~ight8'

(a) The riqU by amendm.ent to odd real estate to the properties. The real estate to which this development riqht .pplies is set forth in Schedule "B".

(b) The: right by 8mendm~nt to create Units and COJniaon Area within the propertie ...

(C) The right by '''endment to sUbdivide and combine units Or convert Units into Common Area.

(d) Tile right by a .... ndment to withdraw real estate from the Properties.

(e) The riqht to construct underqround utility liMe, pipes, wires, ducts, conduits, and other tacilitil!lG across the ~roperti@s for the purpose of fUrnishing utility ~nd othAr ~~rvices to buildings and Improvements to be construQt@d On the land designated "Subject to Development Riqhts Q on the Concept Plan. The Oeclarant also reserves the right to withdraw and grant e8SE!laents to pub~1c utility companies and to conv@y Improv@ments within those ~asements anywhere in the Properti~s not occupi~d by bUildings, for the abova~ mention.ed purposes.

section 5.2. Limitations on QoyaiQpment Righta.

( .. ) The DevelopiOent Rights res~ved in this Article l'Q1..(st be exercised within fifteen (15') years after the recording' Of the initial Oeclaration.

"

(b) Not more than Six Hundred (600) ewellin9 Unit. lIay be created under the Development Rights.

(0) All units and Co~mon Areas created pursuant to the Developm .. nt Rights will be as more fully Bet forth and d@fined in Article XII restricted to residential use, but all Units will not be Binqle fa_1ly detached units. Future Units will consist of an undetermined mix. number, quallty, size, location and density of various types of residential housing- including town house, patio and zero lot line. ~ccess and utilities to surrounding landa not presently in or intended to be included in Development may be over ArtisAn way, Dry Run Commons and other roads within the Subdividon.

(d) Thert!ll Are no limitations on the litylll!!!lls, slzs, location, design, height, and quality of construction ot town houses, patio homes and tero lot line residences.

section 5.3. phasing of Deyelopment Rights. Any ot the Development Rights set forth in section 5.1 above may be exercised with reBp@ct to different p~rcels of real est~te within the Properties at different t1m .. s, and at ditferent loc8tions. Howev@r, no assurances are .,de by the Declarant as to when, where, or the portions where the DeClar8nt will exercise its Development Ri9htS or the order in which auch portion8, or ~ll of the real estate; will be developed. The exercise ot Development A.ights as to some portions ",ill not obligate the Declarant to exercise thea as to other portions of the real estate within the Common Interest Community.

Section 5.4. speeial peslor8nt Rights. The Declarant fully and completely resel"Ves the following specia.l Declat:ant Riqhts anywhere within the prope~tieB;

(a) ~o complete any and all Improvements (including by w~y of explanation and not limited to att'eets, roods, w~lking paths, utilities, and dwelling units of every type and nature) indicated on Plats and Plans filed with the Declaration, any Supplemental Declaration or reasonably antiCipated and implied from the nature of th .. development;

(b) To exeroiae Ilny Develop .. ent R19ht reserved in the Declaration;

(C) TO .aintain sa1e$ offiC8&, adv .. rtising the Properties and and models;

monagement offices, &i9n& Dry Run co~on8 Development

(d) To u~e easements through th8 Common Area for the purpose of making Improvements within the properties or within real estate which m~y be added to the properties, or within Dry Run Co.mons Development.

(e) To appoint or r8move An officer of the ASllociation or it Board momber du:rin9 the period of class nD" Control PeriO<l.

(f) The real .. tate to which the Special !laclarant Rights ~pecified in Sectiona (Il) through (f) abova apply ill .hown on Schedule "S".

Section 5.". Models, Inplyding Model Homes and Hgmesites. Sales Offig,' and MAna'gement Offices. As long a.1I the Declarant iB A Unit Owner, the Declarant and its duly authori~ed ~gents, repr .. sentativea and .. mployees may maintain any Unit owned br the Declarant or any portion ot th. Common Area a8 a. model Un t ot' sales office or management office. The Deolarant is also a West Vir9inia licensed Relll Estate Broker and Declarant's ri9ht to

17

Maintain a sales office shall also inolude tho right. to offeJ:' general real estate sales ~ervices on all property w"ether Or not located within the Properties.

section 5.6. Construption: DeSJarantlp Eosement. The Declarant reserves the r19ht to perform initial buUding and construotion work, warranty work, r~pairB and construction work, and to store materials in !!;Iecure areas, in units and in Common Area, and the further riqht to control all 8uch work and repairs, and the right of access thereto, until its completion. All work may be performed by tne Declarant without the consent or approval of the Boord. The Declarant has such an eas~ment through the Common Area as may be rellsonably n8c~ssary for the purpose of discharging tha Declarant's obligations or exercising Development Riqhts or Special Declarant Rights, whether or not specifically reserved in this Declaration suoh easement inclu~ing the right to convey utility (including cable t.v.) and drainage easements to public utilities, private cable t.v. entities, municipalities, counties, and the state, to fUlfill the plan of development.

Section 5.7. §igD3 and Marketing. The Declarant reserves the right to post signa and displays in tne Common Area to promote sal~s of Units, and to conduct general sales, administrative and maintenance activities in a manner as will not unreasonably disturb the rights of unit Owners.

S~etion 5.8. Declaranttg Personal Property. The Declarant reServes the right to retain all personal property and equipment used in the sales, manaqement, construction and ~alntenanee of the premises that has not been represented as property of the Association. The Declarant reserves the right to reMOVe from the properties promptly after the sale of the last unit permitte~ under the Declaration any and all goods and improvements used in development, marketinq, const~uction and maintenance, whether or not they have become fixturea.

Section 5.9. peclnran~ Control of the ASSQqiation.

(a) Thl:;!'('e shall be II period. or DeClarant control of the A!;i!!;lociation as more fUlly set forth and defined 1n this Oeclllration and Article llI, Section 2, of the By-Ltt.wG, durin9 whioh the Deolarant, or persons desi9nated by the Declarant, may appoint and remOve the officers and members of the Board and have all other such rights of control llS are set forth in this 'Oecillration and the By-Laws.

Section 5.10. LimitAtions on speglal peclarant Right,. Unless SOoner terminated by an ~mendment to thiB Deolaration executed by the Declarant, any Special Deolarant Right speoifi@d in Sections 5.4, 5.5, 5.6, 5.7, and 5.8 may be exercised by the DeClarant until the eIlrlier of the followin9' 80 10n9 u the Declarant (i) is obligated under any warranty or obli9ation, (ii) holds a Development Ri9ht to create additional Units or Common Ar@a, (iii) oWns any Unit; or (iv) owns any security Intereat in any units; or (v) tor rift""n (15) years after recording' this D@claration, whichever is earliest.

Section 5.11. Ipterference with Deyelopment Rights or Special peclarant Right§. Neither the Association no~ any unit OWner may take any action or adopt any rule that will interfere with or diminish any Development Rights or speCial Declarant Right witnout the prior wrl.tten consent ot the DGclarant.

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'.

Articla lX Bight. ond Qbligations of tt' AssociatiqD

section 1. Common Area. The Assooiation, subject to the rights of the OWners Bet forth in this Declarat"ion, shall be responsible for the exclusive manaqement and control of the Common Area and all improvements thereon (including, without limitation, furnishings and equipment related thf!llreto and common landsoaped areas), and shall keep it in good, clean, attractive, and sanitary condition, order f and repair, pursuant to the terms and conditions hereof lind consistent with the Community-Wida standard.

Section 2. Personal property And Reol property for CammOD Use. The Af;leloeiat.lon, throu9b action of ita BQ~'t"d ot Dlr.c:tors, may Acquire, hold, Ilnd diBPQ~e of! tang-ible and intangible perEional property and real property. The Board, acting on beh&lf or the ASSOCiation, shAll accept any real or personal propf!IIrty, leasehold; or other property intere.ts within the Prop.rtias conveyed to it by th" Dec:larant.

Section 3. Rul".ond RegUlations. The A •• oeiation, through its Board of Directors, aay make and ~.nforcf!ll rf!ll8.sonable ru.ltla and regulations governing the Use of the Properties, which rules and regulations shall be consistent, with the rights and duties 8atablished by this Declaration. Sanctions .ay inciude reasonable monetary fines and aUlipen.ion of th8 right to vote and the right to use any recr&ational facilities on the COmmOn Area.. The Board Shall, in addition, have the power to seek relif!!l:f 1n any Court tor

19

violAtions or to Ab~te nuisances. Imposlt1on of sanctions sh.ll b* as provided 1n the Sy .... LAWS of the A.socia.tion. FlnGs .hall constitu~e a lien against Units.

The Association, through the Board, by contract or other aqreement,Bhall have the rlght to enforce oity ordinances or permit municipal Authorities to enforce ordinance. on the Properties for the benefit of the Association and it. Members.

Section 4. Implied Rights. The Association may exeroise any other right or privileges given to it expressly by this Declaration or the By~LaWS, and every other right Or privilege ~easonably to be l~plled from the existence of any right or privilege given to it herein or 'reasonably necessary to effectuate any such right or privilege.

Section 5. Government.a] Intll!!!lrests. The Association shall permit the Declarant reason~ble authority to desi9n~te sites within the properties for fire, police, water, sewer, cable t.v. facilities, and other necessary services and utilities.

Article X As!;essments

Section 1. creation of Assessments. There are hll!!!l~eby created aS5essments tot' A.ssociation expenses as may from time to tirne specifically be authori.ed by the Board ot oirectors to be commenced at the time and in thll!!!l manner set forth in Section 8 of this Article. There shall be two (2) types ot assessmentS: (a) aAse Ae.sessments to fund COmmon Expens@: for the benefit ot all Members of the Association; (b) special Asses8ments AS described in Section l below.

Base Assessm@nts shall be levied equallY on all Units. parcel Developers shall pay loot of the Base AsSessment levied UpOn the UnIte designated for such parcel on the sl~e plan approved by Oeclarant or on the lmprovement Location ~ermit, whichev~r is ~ore recent, on the date the budl)'et is a.dopted, such amount to be adjusted at least annually to reflect single family hOlne Units platted. Special Assessments shall be levied as provided in section 3 below. Each OWner, by acceptance of ~ deed or record~d contract of sale to any portion of the properti8s, is dee.ed to covenant Bnd agree to pay thes@: assessments.

All ~ssessmentB, together with interest at a rate not to exceed the highest rate allowed by West virginia law 8S computed from the date the delinquency first occurs, costs; and reason&ble attorney's fees, shall b~ a charge on the land and sh~11 be a continuing lien upon the Unit against whiCh. f:ulch assessment is made. Bach such assessment, togethe.r with interest, costs, llnd reasonable attorney' B fees, shall also be the p"rsonal obligation of the Person who Was the Owner of such Unit at the tl~e the asslI!!!Issment arose, and hia or her grantee shall be jointly an~ severally liable for such portion thereof 8S may be due and payable ~t the time of conveyance, except no first Mortgagee, nONinee of the Mortgagee; or third party purchaser who obtains title to a Unit pursuant to the remedies provided in the Hort9age, or third party purchaser who obtaina title to a Unit pursuant to the remedies provided in the Mortgllge shall be liable tor unpaid aBS9ss~ents which accrued prior to SUch acquisition of title.

The Association shall, upon demand at any time, furnish to any OWner liable tor any type of assessment a certificate In writing signed by an offic@r or m8n8gement agent of the AS90ciatlon settinq forth whether such assessment hA~ been paid far any 'pArticular Unit. such certificate shall be conclusive evidence o( pA~ent to the Association of such assessment therein stated to have been paid. The .A.s.s.ociation may require the adVAnce payment Of"et.

processing fee not to 4uteeQd Fifty {$!50.00J Dollar. tor tile issuance of such certificate.

Assessments sh811 be paid in sUCh .anner and on Buch dates as may be fixed by the Board of Directors which may include, without limitation, acceleration of the annual Basa Assessment for del inqut:!nts. Unless the: Board ot.herwise provides, the Base Assessment shall be paid 1n annual installments.

No Owner may waive Or otherwise exempt himselt trom liability tor assessments provided for herein; includinq, by w~y Of illustration and not limitation, by non-US8 of COmmon Are~s or abandonment of the Unit. The obligation to pay assesnent" 18 a separate and independent" covenant on the part of aach Owner. No diminution or abatement of assessment or set-Off shall be clai~ed or allowed by reason of any alleged failure of the Association or Board to ta~e some action or perform SOme function required to be taken or performed by the Association Or board under this Declaration or the By-Laws, or for inconvenlenc8 or discomfort arising from the makinq of repairs or improvements which are the responsibility of the Association, at' from any action t"ken to comply \tIith any law, or-dina,nee, or with any order Or directive of any muniCipal of ot.her 90vern~ental authority.

So long as the DecI~rant has an option unilaterally to SUbject additional property to this Declaration, th8 Dechunt shal! either pay the Base Assessments on its unsold Units Or in the alternative and in lieu of I'aying aase Assessments on its unsold units the Declarant shall be obligated for the difference between the amount of "assessm@nts levied on all units subject to the ~ssessment and t.he amount of actual expenditures required to operate the Association during the tiscal year. The Deelar~nt trom ye~r to year may alternate its manner of payments. This obli9~tion mar be satiSfied in the form of a cash ~ubsidy or by "in k nd" contributions of services or materIala, or a combination ot these.

The Association is specifically authoriZed to ent8r into subsidy contracts or contracts for "in kind'* contribution of services or ~ateri~ls or ~ combination of se~vic8s and materials with Declarant or other entities tor the payment of some portion of the Common Expanses.

Section 2. Computation of Base Assessmli!nt. It shall be the duty ot the Soard, at least sixty (60) days before the beginning of 8ach fiscal year, to prepare a budget covering' the estimated Common Expenses of the Association during the COiling year. The budget shall inClude a capital contribution establishing a reserve tund in accordance with a capital budget.

The BaBe As.eGSment to be levied for the ooming year against each Unit subject to assessm8nt under S@ction 8 below shall be computed by dividing tha budgeted common Expense" by thQ total number ot Units then subject to assessment under this Declaration and any Supplemental Declaration. The Bo~rd shall cause a copy of the; CommOn ~xpen~e budget and notice of the amount of Bas. Assessment to be levied against uch Unit for the tollowing year to be delivered to eBch Owner at least thirty (30) days prior to the beginning of the fiscal year. Such budget ,nd assessment shall become effectiVe unless disapproved at a .eeting ot the" voting Members by the vote of seventy (70\) perc&nt of the total clas8 "A h

vote-" in ~the Association, and by the ClaslII liB" Member, if GUCh membership exists r There ahall be no obliqatlon to call a meeting for the purpose of conGidering the budqet except on petition of the Members as provided for special meetings in Article II, section 4; of th .. By-Laws. .

Notwithstanding' the foregoing; however, in the event the propolled budget is disapproved 01," the Board fails for any reason -80 to determin8 the budget tor any yv.ar, then And until such time"'as a budget shall haVe been deterlllined as provided herdn, the du".s per

21

unit in effect for the immediately preceding year shall continue for the current year, with the Board having the authority ~o allocate the total budget fund. to the various budget categories.

Section 3. Special Assel,mBnt. In addition to th. assessment. authori'ed in Section 1 oC this Article, the Association may levy B. Speoial AGSeaSrftE!'nt or Special AsstuullI.ent. troll tlae to time; provided, such assessment shall have the aftiruativ. vote or written consent of Hembers representing at least fifty-one (51') percent of the CIa.. "Aft vote in the Association and the affirmative vote or written consent of the Class "8" Member, if such exiets. The obligation to pay special A ••••• m.nts ehall be cDmputed on ,the .ame basis 88 for Sase Assessaents. Special Ass.sament. shall be payable in such manner and at such times 8S

determined by th~ Board, and may be payable in installments extending beyond the fiscal year in which the special A ••• ssment is approved, if the Board BO determines. '

The Association may also levy a Special As.easment again.t any Member to ~.imburs. the Association for costs incurred in bringing a Member and his unit into compliance with the provieions of the D8claration, any amend.ent9 thereto, the Articles, the BY-Laws, and the Association rules, with special Assessment .AY be levied upon the vote of the Board after notice to the Member and an opportunity for a hearing.

Section 4. Lien for AS"flmlnt.. Upon recDrdinq of a notice of lien on any unit, there shall exist a perfectad lien tor unpaid a.5 •• aments prior and superior to all other liens, except (1) all taxes, bonds, ass88sments, and other levies which by law would be sUperior thereto, and (2) the li.n Dr charge of any first Mortgage of record (meaning any recorded Mortgage with first priority OVer other Mortgagee) made in good faith and for valu ••

such lien, when delinquent, may be .nforced by suit, judgment, and fo.t;eclosure.

The Association, actinq on behalf of the owners, shall have the POWQ~ to bid for the Unit At fo~ecloGure sal. and to acquire and hold,. leaslII, mortgage, and convey the t!l.I!une. suit to recover a money jUdgment tor unpaid Common Expenses and attorney's fees shall be maintainable without foreclosing or waiving the lien securing the sam ••

Section 5. cupital Budget and contrtbyt;tpn_ The Board of Directors shall annually in preparing the base Assessment Budget prepare as a part thereof a capital budget to take into account the number and nature o( replaceable as.ets, the expected life of each allset, and the expected repair or replacement cost. The Board shall set the requir.d capital contribution, if any. in an amoUnt .uffident to permit .,eeting the projected eapital needs of the Association, as shown on the capital budget, with respect beth to amount and timing by annud assessments over the period of th .. budget. The capital contribution required, if any, ahall be fixed by the Board and included within and diBtributad with the Balla Assessment budg.t and assess .. ent, as provided in Section 2 of tbis Artiel ••

section 6. Date of CQft)fQI"s'm"nt of A!!IIIOlIsments. The a ••• lIs.ents provid.d for herein shall commence as to each Unit on the first day of tha first .,onth following (1) the date of conveyance of the Unit by Declarant, or. (11) the .((ective date of the fiut budget, whichever is later. Assessments. ahall be due lind payable in a manner and on a schedule as the Board of Director. may provide. Th. first annual asseument Shall be adju.ted according to the nu~ber of days remaining in the fiscal year at the time 118.essments Commence on the Unit.

section 7. subordination of the Lien to First Mortgage!_ The li.n of ass.ssments, including interest, late charges (subject to

22

the limitations of West Vir91hi~ Law); and cost. (lnC1U41h9 attorney's te~s) provided for her~in, Bh~ll be ~ubordinate to the lien of any first Mort9a9~ upon any Unit. The sale or transfer of any unit shall not affect the assessment lien. However, the sale or transfer of any Unit pursuant to foreolosure of a first Mortgage, or transfer to a first Mort9agee or third party purauant to a d~ed in li~u of foreclosure; shall extinguish the li@n of such asseSSments as to payments which became due prior to such sale or transfer. No sale or transfer shall relieve such Unit from lien ri9hts for any ass~sement.s thereafter becoming due. Where the Mortgagee holding a first Mortgage of reoord or other purchaser of a Unit obtains, title pursuant to remedies under the Mortgage, its successors and assigns shall not be liable for the share of the Common Expenses or assessments by the A.ssociation chargeable to such Unit which bee~me due prior to the acquisition or title to such Unit by such acquir~r. Such unpaid share of Common Expense or assessment shall be deemed to b~ Common Expenses collectible from Owners ot all Units, including such acquirer, its successors, and assigns.

Section 8. ~mpt Property. Notwithstanding anything to the contrary herein. the following property shall be exempted from payment of aas~ Assessments, and speoi~l Assessments:

(8) All Common Are.; .n~

(b) all property dedicated to and accepted by any governm~ntal authority Or pubU,c utility, includ.ing, without limitation, public schools, public streets, and pUblic parks, it any.

Section 9. Assessment LimitAtion. Notwit.hstanding anything herein to the contrary, the annual ~v~rage COmmOn Expense liability of all unit.a rel;lt1;"icted to residential purposes, exclusive of optional U!;I:er fees and any insurance prem'iums paid by the "'ssoclatlon~ shall not exceed One Hundred ($100.00) Dollars as adjusted pursuant to Section 114 of A~ticle I. Chapter 368 of th~ w~st Vir9ini~ Cod~ (titl~d Uniform COmmOn IntereBt Ownership Act) • Conunon Expense li.ability as used in this Section 9 is not intendted ~o include and ahall not include fines and penalties permitt~d 8nd levied against Owners and Units for violAtions of this Declaration. the By-Laws and the Rules and Regula.tions of the Association; Assessments permitted and levied against Owners and Units for failure to maintain their Units as requir@d by this Declaration, the By-LaWS and Rules and" Requlations of the Assooiation; Assessments permitted and levi@d agAinst OWners and Units due to an owner1s willful or negligent damage to the Common Area or other Units a8 permitted by this oeelaration, the By-Laws and Rules and Regulations of the Association, and other similar Assessments permitted and levied against Owners And unite pursuant to this Declaration, the By-Laws, and the Rules and Regulations of the Association other than the normal annual Base Assessments, special Assessments levied by appropriate affirmative vote, and normal annual Capital BU~get an~ Contributions permitte~ by this Declaration.

Article XI Architeqtural Beyipw

Section 1. Applicability. All Architectural ~evlew Shall be perrorm~d by th~ Board, or a committee appointed by the Board, in a~cordance with the provisions of thi9 Article. If the Board appoints a committee to perform the architectural review functions, there shall be no less than three" (3) members and no mqre than seven (1) m~mb~~s, a majority of which must be Owners. ~he terms of ofUee shan be as designated', by the Boar~. Any OWnet" who wishes to make any alteration or "addition which will affect the exterior of his Resid.ence Or Unit is required to obtain the approval of the Board pursuant to thi~ A~ticle prior to making any such alteration or addition. Any owner who makes an alte.ra"tion or

23

addition without the prior approvAl of the Board shAll be deemed to b~ 1n vio18tion of thi. D~claration; ~"d the Board, upon Its own Ibotion, shall proceed as though the Owner qllve the notice of com~letion as s~ecifi8d in Section 11.8.1. Nothinq in this Article shall b8 deemed to reliev8 any owner from obtaining all necessary conssnts and permits and otherwise complying with all applicable State and local laws and ordinance •.

Section 2. Dutie,. The Board shall consider and act upon proposals and/or plans lIubmitted pursuant to this Article. The Board, from ti~e to time and in its so18 discretion, may impose Architectm:al rules, regulations; and guidelines ("Architf!ctural Standards") . The Architectural standards shall interpret and implement the provisions ot this D8claratlon and the Community Standard by settinq torth the standards and procedures for architectural review and guidelines for architectural design, placement of buildings, color schemes, exterior finishes and materials and similar features which may be used in the Projsct; provid~d, however, that the ~rchitectural Standards ahall not be in deroqation of the minimum standards established by this Declaration, And the Community standard. The Architectural Standards shall bs Accepted as Rul8s when adopted in accord8nce with the ~rovisions of the By-LawS.

section 3. App]j cation tor ApproyAl of ImproygMDts. Any Owner, except Oeclarant and its designat8d Agents, who wants to perform any alter8tion or addition fOl" which approval is required shall notity the Board in writing of the nature of the propo8&d work and shall furnish such information bS may be required by the ~rchitectural Standards Or reasonably requ •• tsd by the 80A~d.

Section 4. Basia for Approval Dr Improv@m'ntl. The Board may a~~~ove the p~o~osals only if the Board finds that (i) the plans and. specifications conform to this Oeelaration, the community Standard and to the Architectu~al standards in effect at the time the proposal WAS submitted; (ii) the proposed alteration Or addition will be consistent with the stand.ards of the Prop~rties, the community standa~d, the provisions of this Declaration, and the Architectural Standards as to quality ot workman~hip and materials, harmony of exterior design and visibility with res~ect to existing structures, envircmm8nt loca.tion with respect to topography end finished grade elevations; and (111) the proposed alte~ation or Im~rovement is in conformance with conditions imposed by any municipal or county o~dinanC8 having jurisdiction.

S8ction 5. Form of Approyal And Dt:!ntOJ.. All approvals and denials shan b .. in writ1n",. Any denial of a pro~os.l must state the reasons for the decision to be valid. Any proposAl which has not been ~ej.cted in writin", within forty-five (45) day. f~Oln the date of ,ubmission shall be de~med approved.

Section 6. I'roseeding Wi th Work. Upon .~~roval of the Board the Owner shall diligently ~roceed with the commencement and completion of all work so approved. Work must be commenced within one (1) year from the date of the a~~~oval. If the Owne~ fails to com~ly with the provisions of this Section, the approval given shall be deemed revoked unless the Board extends th8 time for coamencement. Any request fer an exten.ion shall be 1n writinq. No 8xtension shall be qrAnted unlsss the Board findll that there has been no chanqe in the circumstanc88 under which the original approval was ",~anted.

section 7. FAilur, to Complete Work. Completion o~ the work a~~rov8d must oCcur in the twelve (12) month ~eriod rollowin", the .. ~~roval or the work unless the Bpard determines the completion WOUld result in qr8at hardShip to the Owner due to .trike, fir~g, national em8rqencies, natUral calamities Or other supervening forces beyond the control of the Owner Or his agents. It OWner

24

f8.ils to complet.e t.he work within t.he O"~ (1) y~ar period, thQ aoard shall proceed in accQrdance with the provisions ot section 11.8.2 below.

S@ction 8. Oetermination of Comp11nnGc. Any work performed, whether or not the Owner obtain@d th@ proper 8.pprovals, shall be inspecteel anel a de:te:rmin.!ltion of compliAnce shall be J:lade as follows:

section 8.1. upon the completion of any work performed by en Owner for which approval WAS required, the Owner shall give written notice of completion to the Board. If the Owner fails to give the notice of completion of work performed for which approval was required, the Board may proceed upon its own motion.

Section 6.2. Within Thirty (30) days the Boord sholl inspect the work performed and determine wh@th@r it was performed in sUbstantial compliAnce with the approval granted. If the Board finds that the work was not performed in sUbstantial compli.!lnce with the approval granted or if the Board finds that the approval required was not obtained, the Board shall notify the Owner in writing of the non-compliance. The notioe shall speoify the particulars of non-oompliance and shall require the Owner to r@medy the non-complianc8.

Section 9. Failure to Remedy the NOn-Complinnce. It the Board has determined that an Owner has not constructed an Improvement consistent with the specifications of the approval granted .!lnd if the Owner tails to remedy such non~compliance in aocordance wi~h the provisions of the notice of non-compllance l then after the expiration of thirty (30) days from the elate of such notification, the Board shall provide Notice and Hearinq to consider the owner's continuing non-compliance. At the hearing, if the Board finds that there is no valid reason tor the continuing non~compliance, the Board shall determine the estimated cost of correcting it. The Board shall then require the Owner to remeely or remova the S.!lma within a periOd of not more than forty-five (45) days from the date of the Board's deter.lnatlon. If the OWner does not comply with the Board's ruling within such periOd or within any extension of ~uch period as the Bo~rd, in its discretion, may grant, the Board may either remove the non-complying improvement or remedy the non­compliance. The costs of such action Bhall be ass~ssed against the Owner and constitutes a lien upon the involved Unit.

Section 10. Waiver. Approval ot any plans, drawings or specifications for any work proposed, ·,or for any other matter requiring approval, shall not be deemed to constitute a waiver of any right to deny approval of any similar plan, drawing, specifIcation or matter subsequently submitted for approval.

section 11. EstoPDel Certificate. Within thirty PO) days atter written demand is delivered to the Soar~ by any OWner, and upon payment to the Association of a reaBonable fee (~S fixed from ti~e to time by the Association), the soard ehal1 record an estoppel certificate, executed by any two (2) Directors, certifying that as of the date thereof, eitherz (a) the work completed complies with this Declaration or (b) the work completed does not comply. In the latter Situation, the certificate shall al.o identify the particUlars of the non-compliance. Any BuCC8a8Qr in interest of th. Owner shall be entitled to rely on the certiftcBt. with respect to the matters set forth. This certificate shall be conclusive as between the Associa.tion, oeelarant And All Owners Ilnd such persons deriving any interest through any of them.

Section 12. LiabIlIty. If Di~ctors have acted in good faith On the basis of such infor.Ation"poss8ssed by them, neither the Board nor any Director shall be liable to the Association or to any Owner tor any damage; loss or prejudice suffered or claimed due to: (a) the af,prOV.!ll or disapproval of any plens, drawln9S, and specificat onsl whether or not defective; Cb) the construction or

25

performance of &hy wo~k whether Or not pursuant to approved pl~ns, drawings, and specifications; (C) the development of ~ny p~operty within the Project; or (d) the ~x~cution and tiling of any estoppel c~rtifioat~, whether or not th~ facts therein are correct.

~a~t:lc;:.q ;t~. ~pp.l,1,9b.Ld, 1 'ty E2 peOl.'rgoE. TI, .. f1""f,1VJ.ClLQnCl QC thu;. Articl!!:! sh.!;llil not apply to any Unit ownod by Declarant or prior to his tirat conveyance of a Unit to an Owner.

Section 14. ~neral Exterior Paintinq. p&int colors for the ~xterior painting of single family detached dwellings shall not be SUbject to A~ehitectural ~eview.

Artiole XII Restrictigns on Use. Alienation and Occupancy

s~ction 1. Primary n:te and occupancy R~striction!l. SUbject to the Developm~nt Rights and special Declarant Rights r~served under ~rticle VIII, the following use and occupancy restrictions apply to all units and, where applicable, to the Common ~re8:s:

(ll) primary ResidentL~] IJse. Except as perlQitted by Articl~ XII, Section (c), units shall be used for residential purposes only. No building shall be ~rected, alt!!:!r~d, placed or pe~mitted to re~&ln on any Unit other than one (1) eingle family det~chect dwelling, duplexes or townhouses. No detached outbuildings ot any type or nature are permitted, except one small, attractive outbuilding not more t,han 5' x 10' in size, which is attached to and incorporated into a portion connected to the dWelling is permitted after architectural review.

(b) Business Us~ in R~sidenti8:1 Units. No trade or business roay be conducted in or from any Residential Unit, except that an Owner or occupant reSiding in a unit may conduct business activities within the Unit so long as; (a) the ~xistence or operation of the business activity i~ not, apparent or detectable by sight, sound, or smell from outside the Unit; (b) the business &ctivity conforms to all zoning requirements for the P~operti@s; (c) the business activity does not involve persons coming onto the Properties who do not reside in the P~op~rties or door-to­door solioitation or residents of the propertlesl and (d) the busin~ss activity is consistent with the resid~nti81 character of the properties and do~s not constitute a nuisance, or a hazardous or offensive use, or threaten ~h~ security or safety of other residents of the Properties, as may be determined in the sole discretion of the Board.

The terms "business" or "trade l ', 8::i!i used in this proviSion, shall b~ construed to have their ordinary, generally accepted meanings, and shall include, without lilnltlltion, Any occupation, work o~ activity undertaken on an onqoing basis which involves the proviSion of 9QOds Qr services to p~rsons othor th~" the provider's family and for which the provider receives a fee, comp~nsation, or other form of consider&tion regardless of whether; (1) such activity is engaged 1n full o. part-tim", (ii) suoh activity is intended to or does generate II profit; and (ill) ~ license is required therefor. NotWithstanding the above, the l!!:!aslng of a Unit shall not be considered a trad~ or business within the meaning of this section. Thia section shall not &pply to' any activity conducted by the Declarant with r@spect to its develop~ent llnd sllle of the p~opartie9 or its use of any'Unlts which it owns within the Properties.

Section 2. Other Us~ and Occupancy RestrictiQns. s'ubject to the Oevelopment. Rights and special Decla~ant Rights reserved under Article VIII t.he following use and occupancy restrictiona,~pplY to &11 Units ~nd ~h~ Common Ar~a:

\ 26

I "

(a)

(b)

(c)

(d)

(e)

(f)

SUbdiyilion or IQts. No unit. ahall be divided, .ubdivided or partitioned in 8ny WAy by sAle, 91ft, devise, or othar method of conveyance, except to allow for nominal boundary line adjustments. No Unit shall be combined or merged with any othe~ Unit without the prior wdtten .. pp~oval and consent of the Board or the Architectural Control committee.

property Maintenance. ~ach own8r shall keep their Unit and improvements thereon 1n a safe, clean, neat, and well m8intained condition, and shall comply with all applicable safety, health, police and fir& department requirements. No trash, litter, junk, bOKes, oontaIners, bottles; cans, implements, machinQ~y, lumber, or other building material shall be permitted to remain exposed on any unit except as necessary during the construction pe~iod. Rubbish, leave., And trash shall not be disposed of in the: Properties by burning in open fires or incinerators. All trash and garbage oans or reoeptacles sllall be .. to~ed out of view from neighboring Units, roads, Or streets, except at times of soheduled garbage or trAsh pickup.

Nyisange. No noxious, illegal, hazardous, dangerous or offensive use, construction or activity shall be conducted on any Unit, nor shall anything be done thereon whioh ~.y be or become an AnnoyAnce or nuisance to the owners, tenants or occupants of other Units within Or adjacent to the property by reason of unsightliness, or the excessive emission of fUmes, odors, glare, exoessive heAt, vibrAtion, gases, vapors, chemicals, radiation, dust, liquid waste, smoke or noise. No unit sh.ll be use~ in whole o~ in part for the storaq8 of rubbish of any character whatsoever, nor for tile storage of any property Or thing that will c.use such Unit to appear in an unclean or untidy condition or that will be obnoxious to the eye.

Unregistered Vehicle,. No unreqistered vehicles of any kind, including, but not li~ite~ to, automobiles, trucks, pickups, buseS f motorcycles, vans, motor homes, trailers, boat., farm tractors and equipment, or recreational vehicles shall be parked, stored, or in any way maintained on any street, right-of-way Or Common Area or on any Unit, except within a garage or other permitted improvement on the unit.

~ Only OOmmOn domestic house pets sllall be allowed on any unit or the improvements thereon, provi~ed tlley are not kept or bred for any co~mercial purpose. Pets sllall not be allowed to rOAID. At lat'g-e, !lnd pets shall not be hous4!!ld, fenced or otherwise maintained on a regular ba8ia outside of the prima~y Dwelling Unit on any Unit. Pets '~8 pe~mittGd for periods of short duration an~ during daylight hours to run at large within any permitted fenced yard. Kennels, doq runs, dog houses, and ather similar pet f&cilities are prohibited. No far. animal., llv.sto~k, or poultry of any kind shall be kept, ~aintained or in .. ny w.y allowed on any Unit. The Unit OwnerS Association shall have absolute Authority to prohf,bit unusual or ex.otic animAls, birds, or reptil •• from beinq kept on a unit or in an improvement located thereon, and shall have the authority to prollibit or regul .. te loud and noisy pets.

pork'ng. Each residential Unit shAll provide an oft .treet pa~king a~ea fo~ at least two (2) 6' X 18' vebicles. All ~riveways .. 110.11 be black; topped or ooncreted an~ shall include a.t the st:reet entrance an appropriate drainage culvert or depression aa needed. ~xeept tor temporary and unusual irregul~l" overflow parklnq fro,.. the garage and driv~w8y ot any Unit, no parking ~hall be permitted on any street or roa~ witllin the Properties. No Unit own~~ sll.ll

27

( <;')

(h)

( i)

(j)

(k)

(1)

(m)

(n)

(0)

park on a regular or continuing btllsis more than t.wo (2) registered vehic:l~$ on t.he Unit., other than inside ~ny improvement thereon. Motor hom~s; recreational v~hicle9 I

less than 20 feet in length, Or boats on trailers may be ~arked or maintaJned on a Unit ~rovided that they are kept in a garaqe. Subject to SUCh Rules, Requlations and Fines adopted by the ~$6ociAtion, til recreational v~hicle or motor home m~y be parked on the drive~ay of a Unit tor a period of not to exceed three (3) consecutive days for the purpose of and the sole purpose of prep8.ring the: vehicle for a trip. No Member may park such til vehicle on their Unit for such purposes more than Mix (6) times in any calendar year.

Snowmobiles. trail bikes e.nd iimil&,r vehioles. NO snow mobil~s, trail bikes, mini-bikes, all terrain vehicles, or other similar vehicles shall be ~ermitted to o~erate within the Pro~erties. No motori.ed vehicle shall be ~ermitted in any ~.rk or on any walking paths.

Cc;mstruction. Durinq constl"uction, units shall be kept fr~e and clear of unnecessary and unsightly debris. ~ll trash, ~Ubbish and debris sh~ll b@ cleaned trom the unit on a r!:!:.!I!;'onable, periodic basis durilig const.ruction and all t~aSh, rubbish and debris shall be promptly removed from the Unit after construction ia completed. Existing storm water and runoff drainage patterns for each Unit shall be p~otected at all times both du~ing and after construction. During construction. reasonable measures sh~ll be taken to prevent erosion by wind and water.

~mercia) vehicles. @autpment. etc. Except durin9 periods when construction is taking place On the Unit~ no trucks large~ than three-qu.!lrter (3/4) ton capacity, no commercial v~hicles, camper tops, construction, or like equipment or mobile or stationa~y trailers of any kind shall be placed or permitted to remain On any unit.

Building setback r,guir~meDts. The minimum building setback lines for all improvements cQnstructed on any Resid~ntial unit shall be as reflected and set forth upon the recol"ded plats of the properties

Uti) j tv 1 iDes. ,,11 utility service lines, includinq but not limited to, electric, telephone, natural gas, cable television, water 8nd sewe~ lin~a shall be bur-led underground, excluding all required ped~stals, transformer boxes, and other required above ground imp~ovemants.

Outdoor lighting. outdoor lighting shall be of a type and installation suoh that no direot glare is visible from adjoining ~roperties.

Mall Boxes. The Architeetural control Committee may determine the loc~tion, color, size; d~si9n, lettering, and all of the particulars of all mall or pap~~ delive~y boxeS. and stDndar~s aDd brackets and n~me signs for the boxes in order that the area be strictly unitorm 1n appearance with r!:!:spect to these items.

~a. NO signs Of any ch~racter Shall be er&cted, placed, permitted or m8intain8d on any unit or tmprovement exc!:!:pt norm81 .and re8aonablt!l ~daress identitication signs and normal and rei!l.$onable II For S8.1e n signs; exc!:!:pt with the prior written approval and .consent of the Architectural Control committee.

~.

!;~ntr8.1 watt" and sewar.. All residences or other improvements on the units shall be connected to·the public central water 8nd sewer syste~s serving the Properties. and no residence or other improvement shall b~ occupi~d until

28

such time AS it 1s connect8d to the public central water and sewe~ system. No private water well or septic system Shall be permitted on any Unit.

(p) &BY.Tag' r"trigtion. No beer, wins; liquor or any other intoxicating beverages of any type or nature will ba sold or sto~ed for sale on any resid~ntiAl unit.

(q) Reltription on residenee types. NQ structure of A temporary character, trailer. house trailer, mobile hOMe, mobile double wide, basement, tent, shack, garaqe; barn Or other outbuilding shall be used on any Unit at any time as a residence, either temporarily or permanently.

(r) ~. subject to architectur81 control review, Owners may cut down any tr8e which is diseased Or constitutes a hazard On any unit; provided, however, A new tree shall be planted and maintAined to replace any trees which are cut down.

(s) E&~. Attractive wood or wroug~t iron coloniel fences ShAll be p~rmitted in the front lawn or front yard of any Lot. Fences are p~rmitted on the bo:ck lo:wn or back yard of any Lot provided that such fence does not exceed four (4) feet in ~eight. permitted swimming pool fencing shall not exceed five (5) feet in height. Chain link, American Wi~~ o:nd Bo:rb wire fences are entirely strictly prOhibited. Front yard shall be defined as that portion of a Unit. fro~ side line to side line, which is located between the front wall of the residence located on sAid unit and the street upon which said residence fronts. Architectural review for fencing shall at All times qive consideration to street sight distances and whether the requested fence is o:ppropri~te at the requested location.

(t) Residential unit siz.. No residence designated for

(u)

(v)

(v)

(x)

oeoup~ney by A single fAmily shall contain less than seven hundred fifty (750) square feet of finished, hebted livin9 space.

Ospupants boynd. All provisions of the Deolaration, 8y­Laws and of any rules and regulations or use restrictions promulgated pursuant thereto which qov8rn the conduct of Ownera and w~ic~ provide for sanctions against Owners shall Also apply to All occupants, quests, aqents and invitees of any Unit. Every Owner s~all cause all occupants of ~is or her Unit to comply with the Declaration, oy-Laws, and the rules And regulAtions for all violations and losses to the Common Areas caused by suoh oOCupAnts, notwithstandinq the fact that such occupants of a Unit are fully liabl& and may be sanotioned tor Any violation of the Declaration, By­L8WS, and rules and regulations adopted purauant th8r.to.

AntlnnAs. No exterior antennas, aerials, satellite dishes, or other apparatuB for the transmission or reception of television, radio, or other signals of any kind s~all be plaoed, allowGd, or ma.intained upon any portion of the Properties.

f22la. No above-ground pools shall,be erected. constructed or installed on any Unit.

Drainage. CAtch basins and dralnaqe areas are for the purpose of natural flow of ,WAter only. No obstructions or debris 8~al1 be placed in "t~ese ereu. No I'er'lon ot~er than Deolarant may change or re-ehannel the drainage flow after location And insto:ltation of drainage swale., storm sewers, or storra drains: Declarant hereby reserves II

perpetual easement across the Properties for the purpose of altering drainage and water flow. All residences on the lots Shall, for purposes of stormwater mAnagelWent; be

29

cOhnected to a dry well on tho lot which shall be constructed and installed at the same time ~s any residence placed upon the lot. The siz~ and location of the dry well shall be in accordance with ~he dry well approved by the Martinsburg Planning Commission Ol" such other regulatory agency having jurisdiction th~r8of.

(y) sight DistAnce at Int~rsect12n2. All property lOCAted at street intersections shall be landscaped so as to permit safe sight across the street cornet'S. No fence, wall, hedge, or shrub planting shall be placed or permltt~d to remain where it would Cl"eate a traffic or sight problem.

(z) Artificial. Extgrtor Sculpture and Similar Item~. NO artiflC::i&l vegetation shall b@ permitted on t.he ex:terior of any portion of the Propel"ties. Exterior sculpture, fountains, flags, and similarly items mu~t be approved in accordance with Article XI of this Declaration.

(aA) Playground. Any playground or other play areas or equipm!:!!nt furnished by the Association or erected within th!:!! Properties shall be used at the riSk of the user, and the Association shall not be held liable to ony Person tor any claim, damage, or injury occurring thereon or related to use thereof.

(bb) Genera 1 Storage. All perm! tted persona 1 pl"operty, including but not limited to 9arbage containers, grills, bicycles, toys, yard equipment, lawn mowers, and ~ll other household personal pr;op!:!:rty sh~ll b!:!: stored within any parmittect residance or o~her permitted outbuilding.

(cc) No immoral, improper, offensive, or unlawful use may be made of the ~roperty and unit Owners shall comply with and conform to all applicable laws and regula.tions of the Unit.ed states and of the State of \4est Virginia and all ordinances, rules and regulations ot the County Of Berkeley and the City Of Martinsburg. The violating unit. Owner shall hold the Association and other Unit Owners harmless from all fines, penalties, Costs and prosecutions for the violation thereof or noncompliance therewith.

Section J. Restrictions on Alienation.

(a) A unit may not be conveyed pursuant to 8 time-sharing plan.

(b) A Unit may not be leased or rented for A term of less than 30 days. All leases and rentol agreements shall b@ in writing and SUbject to the requirements of the Documents and the Association.

All leases o~ a Unit shall be deemed to include a provision th.t the tenant will recognize and attorn to the Association as landlord, solely tor the purpose of havin9 the power to enforce a violation of the provisions ot the Documents against the tenant; p~ovided the A$$ociation gives tho landlord notice of lt~ i~~ent to so en:f;orca, and a J:"easonable opportunity to cure the vi,olation directly, prior to the commencement of an enforcement action.

The Association, acting through its Board of Directors, shall ~ave the authority to make and enforce standards and re~trictlons governing the use of the Properties in addition to those contained her~in, and to impose reasonable user fees for use of common Area facUities. this authority shall include, without limitation, the power to regulate the speed and flow of traffic on pl"i9ata roads within t.n~ properties. Such re9u~ations and use restrictions ~hall be binding upon all Owners and occupants until and unles~ overruled, canceled or modified in a regUlar or Special maeting of

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the AssooiAtion by the vote ot Memb~~s representing ~ Majority of the total class "A" votes in the association And by the vote ot the Class "B" member, so long as such membership sh~ll ex:ist.

Artiole XlII Mortgagee proyi3ioDs

The followin9 provisions are for the benefit of holders of first Mortgages On Units in the prop~r~1es. The provisions ot thi$ Article apply to both this D~ol~ratlon and to th~ ay-Laws, notwithstanding any other provisions contain&d ther~in.

S@etion 1. N9~i'.1 of Action. An institutional holder, insurer, or guarantor of a first Mortgage who provides written request to I

the Association (such request to state the name and address of such holder, insurer, or guarantor and th~ unit number, therefore beooming an "eligible lIolder" ), will be entitle(l to timely written notioe of:

(a) any condemnation loss or any casualty loss which affects a material portion of th@ Prop~rties or which affects any Unit on which there is a first Mortgage held. insured, or guaranteed by such e~igible holder;

(b) any delinquency in the paym~nt of assessments or oharq~s owed by an Owner of a unit subject to th~ MortqA9~ ot such eligible holder, whe~e such delinquency has continued for a period of sixty (60) days1 provid~d, ho'Wever, notwithstandinq this provision, any holder of .a first Mortgage, upon r~que~t. is entitled to writt~n notice from the Association of .!Iny defau.lt in the pe:rfor_ance by an Owner of a unit of any obligation und8r the oeelar~tion or By-Laws of the Association which is not cured within sixty (60) day~;

(0) any lapse, cancellation, or material modification of any insurance policy roaintain&d by th8 Associ~tion: or

(d) any proposed aotion which would require the oonsent of • speoified percentage o( e~!gible holders.

Seotion 2. Special ["LNe Proyislon. So long as required by the Federal Home Loan Mortgage Corporation, the following provisions apply in a(l(lition to and not in lieu ot the foregoing. Unless at least two-thirds (2/3) of the first Mortgagees or Members representing at least two-thirds (2/3) of the total Association vote entitled to be cast thereon consent, th8 Association shall not:

(a) by ect or omission seek to ebandon, partition, subdivide, encumb8r, sell, or transfer all or Any portion of the real property comprising the Common A~ea which th& Association owns, directly or indirectly (the granting of easements for pUblio utilities or other similar purposes consistent witll the intended use of the Common Area shall not be deemed a tr~hsfer within the me~nin9 of this sub~ection);

(b) change the metllo" of determining tile obligations, assess.ments, dues, or othil:!!X' charqe8 which may be l~vied against a Owner of a unit;

(e) by act Or omission chlln98, waive, or abandon any schame ot regulations or enfo~cement thereof pertaining to the arohitectural design or the exterior appearalJo" and maint@nance of units and of the CommOn Area (The issuance and amendment of architectural standaX'ds, procedures, rules and regulations, or use ~egtrlctions shall not constitute a change, waiver, Or abandonment within the .eaninq of this provision.);

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(d) tail to m.aintlllin O!:!claratiotl; or

insurance. a.s l;"equlr~d by this

(e) Use hazlIIt;'d in:sut'cmce proceeds ('or any Common Area losses for other than repair, replacem~nt. or r@construction of such property.

II First Mot'tgagees may, jOintly or singly, pay taxes or other il charges which are in default 1II1"1d which m.!tiy or hav~ become a charge II against the Common Area and may pay overdue premiums on casualty i insurance pOlicies or Secure neW casualty insuranc!:! coverage upon I! the 13pse of an Association policy, and first Mort9a9~l!:s Inaking 1:1 such payments shall be entitled to imm~diate reimbursement from the ji Association.

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section J. flo Priority. No p~ovlsion 0' this Declaration or the BY-Laws gives or shall be construed as giving any Owner or other party priority over any rights of the first Mortgagee of any unit in the caSe of distribution to such Owner of insurance proceeds or condemnation awards for losses to Or a taking of th~ COmmon Ar!:!a.

section 4. Notic~ of Association. shall be obli,gated to furnish to the address of the holder of lIIny mortgage Unit.

Upon requ@st, each Owner Association the n~l1Ie and !:!ncumbering such Ownt:!r's

II section 5. :B.ltl.!UtQment by Bpa..r!!. ShOUld thi:!! 'federal N'~tiolial ! MOl;"tgage Association o:t;" the Fedl!:ral Home Loan Mortgage Corporation ~I subsequently delete any of their r!:!spective rl!:quirements which

I necessitat.e the provisions of this Article or make any such requirements less string!:!nt. the Soat'd. without approval of the

I Owners, may Cause an amendment to this ArtIcle to be record~d to II refl~ot such changes.

section 6. Applicability of Article XlIX. Nothing contained in II

II this Articlo shall be construed to reduce the percentage vote that !i must. otherwise be obtain~d under the O!:!claration l By-Laws I or west Ii virqinia corporate law for any or thl!: ;;Icts set out in this Article.

'. II S!:!ct.ion'. .Es!...i.l..ure of Mortgagee to Respond. Any Mortg;)gee who i! receives a written request from the Board to respond to or oonsent I to any action shall be deemed to have approvl!:d such action if th~

Association ,does not receive a written response from th@ Mortgage@ I

within thirty (Jo) days of the date or the Association's request.

Section 8. Devi:!!loPlnent Rights. No D9v~lopment ]lights or Spl!:clal Declarant Rights may be. exercised or' voluntarily abandon~d or terminated by the Declat'ant unles!:i all persons holding security I

Interests in th~ Development Ri9htS cons@nt to the exercise, ~bandonment, or termination.

ArtiCle XIV Additional pecl8rant'p Rights

Any Qr all of tho special ~ights and obligations Q{ the Decl~r8nt may be transf!:!rred to other Pl!:rsons l provided that the transf!:!r shall not rl!:duce an obligation nor enlarge i'I riqht bE;!yond that contained herein, and provided further, no such transfer sh~ll be effective unless it is a written instrum6nt'signed by th~ Oe.clarant and dul.y recorded in the public records of Berkeli:!!y County, weat Virgirria. flothing in this Decl~t'ation shall be const:t;"ued to require Declarant or any successor to dev!:!lop any of the prop~rty set forth in schedule "a" in any m~nn~l" whatsoevi:!!r.

Notwithstanding any provisions ~cont.ain!:!d in the: D~el,aI'ation to ; the contrary, so long as construotion and initial ~al@ of Units

II' within the Properties and all permitted additions there. to sholl

continue, it shall be !:!xp:t:'essly permi:!lslbl!:!. for Oeclarant to rna inta in and ctlr.t;"y (In \lpon portions of. the Common I\.r.ea such

II faoiliti~s and activities as, in the. sole opinion of. Declara~t, may

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be r~AsonAbly requir8d, convenient, or incident~l to the construction O~ a~l~ of such Units. Includinq, but not limited to.

I busin~sg offices, signs, ~odel units, And sales offices, and the Declarant shall have an easement for access to such facilities. The right to maintain And carryon such tacilities and activities shall include specifically the right to use units owned by th .. DeclA~ant and any clubhou~e or community center which m8Y be owned by the AssociAtion, as models, sa lee offices, and for lodqing and entertainment, respectively, of sales prospects and other business invitees.

As 10n9 AS Oeclarant continues to have ri9hts under this parllqraph, nO Person shall record any declaration of covenants j

conditions and restrictions, or declaution of condominium or similar instrument affecting any portion of the properties without DeclarAnt's review and written consent thereto, and any att@mpted

I recordation without compliance herewith shall result in such 'II' declaration of covenants, conditions, and X't:!strictions, or

declaration of condominium or similar instrument beinq void and of

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no force and effect unless subsequently approved by recorded consent signed by the oeclarant.

I So long as Declarant continues to have rights under this I Paraqraph, all sales, promotional, and advertising materials, and i all forms for deed5, contracts for sale and other clOSing docum@nts I for the subdivision and sale of property in the properties by any

Parcel Developer shall be subject to the prior approval of Declarant, which approval shall not be unreasonably withheld. Deolarant shall d~liver notice to any parcel Developer of Oeclarant's Approval or disapprovAl of all such materials and docum~nts within thirty (30) days of receipt of SUch mat8riAls and docu~ents and, if disapproved, the specific Changes requested. If Declarant fails to so notify any Parc@l Developer within such thirty (30) day period, Declarant shall be deemed to have waived any objections to such materials and documents and to have approved the foregoing. Upon disapprovAl, the foregoing procedure shall b8 repeated until approval is obtained Or deemed to be obtained.

This Article may not be Amended without the express written consent of the Declarant: provided, however, the rights contained in this article shall t@rmin8te upon th8 earlier of (a) December 31, 2017, or (b) upon recording by Declarant of a written statement that all sales activity has ceased.

Article XV Porty walls

Section 1. Ggnera] Rules of Low to AD~lY. Each wall which is built as a part of the original construct on of the hQaes upon the Properties and placed on the dividing line between the Lots shall constitute a party wall, and, to the extent not inconsistent with the provisions of this Article, the general rules of law regarding party walls and liability for the property damage due to neqligenc8 Or willful acts or omissions shall apply thereto.

Section ~. Shoring pr Repair and Maintenance. The cost of reasonable repair and ~Alntenance or the party wall shall be shared by the Owners who ~ake use of the wall in proportion to such use.

Section 3. pestruqtioo by Fire or other Casuglty. If a party wall is destroyed or damaged by fire or other casualty, any Owner who has used the WAll may restore it, and if the other Owners thereatter maka use of the wall, they shall contribute to the cost of restoration thereof in proportion 'to such use without prejudice, however, to the ri9ht of any such Owners to call for a larger contribution from the other under llny rule of law regarding liAbility for negligent or willful Acts Or omissions.

Section 4. 'W'~Atherproofing. Notwithstanding- any other prpvision of this Article, an Owner who by his negligent Or willful acts

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c~us~s th~ party wall to b~ ~~pos~d to the el~m@nts sh~ll bear the whol@: cost of furnishing the necessary proteotion ;:l9i!!inst such eleme.ht.s.

Section~. Right to Contri~lon Runs with Land. ,any Owner to contribut.!'on from any other Owner under shall be appurt~nant to the l~nd And shall pass to successors in title.

The right of this Article such o..,ner I s

Section~. Arbitrati2D. In the event of any dispute ariaing concerning a party wall, or undcr the provisions of this Article, each party shall ohoose one a~bitr8tor, ano such 8rbitrator~ ~hall choose on~ additional arbitrator, ~nd the decision shall be by a majority of all the arbitrators.

ARTICLE XVI ~asements, Rights-of-Way, and Lio@:nses

Section 1. Easem@nt fQr Access. Declarant reserves unto itself, its successors and/or assigns and invitees a perpetual and non­exclusive easement or ri9ht~of~way for ingress, egress and ~ccesS of al.l kinds over and a.cross all of the Common Areas ~nd G@neral and £xclusive Common Areas of th~ properties to and from all points within the Properties for ~ll purposes.

Section 2. Utility Easem~nts. Decla~ant reserveS unto itself. its successors and/or assigns, a perpetual and non-exclusive easement or right-of-way over, through and unaer the Common Are~s within the Prope~ti~s for the purpose of constructing, installing. operating ~"d maintaining utility lines, pipes, wires, ducts, conduits, and other facilities including drainage easements and slope control easements for the purpose of furnishing utility and related services within the Properties. The Declarant further reserves unto itself, its successors and/or assigns, all those u~ility easements, drainage eas~ments and slope control eas~ment9 shown on the plats of the Properties for the purpose of

II construct.ing, installing, operating, ,and maintaining ut.ility line~, II pipcs, wires, ducts, conduits, and other facilities for ~he purpose ! of furnishing utility and related services within the Properti~s. ~I The term "utilities li as used in this par~graph includes, but is not ! limited to, gas, electric, telephone, water, sewer and cable

television. To the extent, in the Declarant's eole discretion, it is reasonably possible eaa~m~nts shall be kept within ten feet of unit front and rear lines and ten (10) feet of unit side line •. within all reserved easements, no structures, planting or other materials shall be placed or permitted to remain which may damage or intertere with ~he installation and maintenance of utilities or which may change the direotion of or the flow of drainage ch~nnels or which may obstruct or retard the flow of water through drainage easements; provided, however, any permitted side or rear yard fence m~y be appropriately placed in said areas.

seotion 3. Ea~ement. Declarant reservll:!'S unto itself, its successors and/or assigns a perpetual and non-exclusive access and utility easement or right-of-way and over all streets, ways and Common Areas within Pha~e I of ory Run Commong Subdivision and all other streeta and ways in ~ny future phase or addition to the properties or Dry Run Commons Subdivision for purposes of ingress to egress from all of De~larant's surrounding and adjacent real estate and for pu~poses of providinq all forma of utility servioes t.o said real estate. . .

section 4 .. Easements of EncrQ.)qhm~nt. There shall be reciprocal appurtenant e,asem~nts of encroachment as between each unit and such portion or portions of the. Common Area adjacent the.t"E!to or as! between adjacent Units or any un~t, inclu~in9 such Units as contain recreational and commercial uses, due to the Unint~ntional

I placement or settling o~ shifting of the lmprov8ments. const~ucted, reconstruot~d, or altered thereon (in accord~nce with the terms of

I, these restrictione) to a distance of not more than three" (3) feet,

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aa measured fl"om any point on t.he conllnon boundary along' a lin. perpendiculAr to such boundary At such pointl provided. however, in no event shall an e~se~ent tor encro8ch~ent exist if such encroachment occurrl!:!d due to willfUl and knowing conduct on the

I part of an Own8r, tenant, o~ the ABsoel~tlon.

section 5. EAsements Cor Utilitiep. Etc. Then!! iEi hereby reserved unto Oeclarant, so 10n9 AS the Declarant owns any property described On Schedules HAn or H81

', the Association, ~nd the designees of each (which may include, without limitation, Berkeley County, west Virginia and t~e City o~ Martinsburg, west Virginia, and any utility), blanket easements upon, across, over, and under all of the Co~on Area ~nd; to the extent shown on any plat, over the units for ingress, egress, installation, replacing, repairing, ' and .aintaining cabl& television system~, master television antenna systems, security, and similar ayste., road~, walkways, bicycle pathways, drainage systems, street lights, $ignage, and all ut.ilities, including, but not limited to, wAter, sew!:!X's. meter

,I boxes, tel!:!phones, gas, and electricity. II II ,i ,I ,;

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Without limiting the qenerality ot. the foregOing, theri:! are hereby r@~@rved fOr the local water supplier e8sements 8cross all Units for ingress, egress, installation, readinq, replacing, repairing, and maintaining water m8ter boxes. Notwithstanding anythinq to the contrary contained in this Section, no sewers, electrical lines, water lines, or other utilities m8Y be inst811ed or relocated on the Properties, except as may be approved by the association's Board of Directors or as provided by Declarant.

Should any entity furnishing a service covered by the 9~neral easemont h~rein provided request A specific easement by separate recordable document, the B08rd of Directo~s shall h8ve the right to grant such @aaSment over the Prop~rt1es without conflicting with the terms hereof. The easemanta provided for in this Article shall in no way adversely aftect a.ny other recorded easement on the Properties.

The Board shall have, by a two-thirds (2/3) vote, the power to dedic8te portions Of the COmmon Are8, including all streets and W8YS, to the City ot M8rtinsbur9, aerkeley county, West Vir9inia, or to any other loc81, state, or federal qovernm8nt entity, subject to Buch approval requirements as may be cont8ined in Article XIII, Section 2 oe this Declaration. The De"la"ant, unilaterally and without the nec@~slty of any cons@nt from any Owner, the Association 0);" any MOl"tgagee, shall have the power to d.edicate portions of the Common Area, ineludinq streets and way. to the City of Martinsbur9 or to any other local, state or federal qovernment8l entity.

Section 6. eapftment tor Agcess OY't PriVAte Stro@ts. Thel"e is hereby reserved. to t.he general public an easement for ingress, egress and acc~ss ov&r All private streets within the Properties, subject to such rules and regulations as m8Y be promulgated by t.he Board ot Oirector$.

Section 7. ZerQ {.at Line Eas"mant. ~hortB are r •• orved and granted for the b@n@tit of ~Ach zero lot line unit, a. dominant tenement, over, under and Across such portion or portions of the adjacent Unit, as servient tenement, non-exclusive ease~ents for encroachment., occup8ncy and use of such portions of adjacent units as, are encroached upon, used and occupied by the dominant tenement as A result· of any 0);"1g1nal construction deSign, Accretion, erosion, eddition,. deterior8tion, dec8Y, errors in ori9inal construction, movement, settlement, .tlh1ftlnq or subslst&nc,e of any buildinq or portion thereof, and for th8 maintenance, repair and ~econst.ruction of any l~provements located on the zero lot line Unit. .

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Artiel.. XVII General proVision

'I Section 1. Tru.:m,. The covenant.s and restr let ions of th I n J: Declaration shAll run with !lnd bind the Properties, and shall inurn :j to the benefit of and shall be enfol."oeable by the Association Or

the Owner of ,any Froperties subjeot to this Declal"~tion I th@tr :!II resp~etive legal representatives, heirs, successors, and assigns,

for a term of thirty (30) yea~s from the date this DeClarAtion in recorded, after whiCh time they shall be automatically extended for

1.1 auccessive periods of ten (10) years, unless an instrument In 11 writing, signed by th .. then OWno>rs ot two-thirds (2{3) Of tho

I Units, has been recorded within the year prll:!:cedinq the beg1.nninq or

1 each successiv .. period of ten (10) ye.rs, agreeing to change s.I,1 II covenants and restrictions, in whole or in part, or to terrninatfl

the !!!jame, in which case t.his Declaration Shall be modified Or t~rminated as speoifi@d therein.

Section :2. Amendm~nt. Prior to the conveyance of the first Unit, Decl .. rant may unilaterally amend this OeClaration. After­such conveyance, the Declarant may amend this Declaration so 1011(1 as it still owns propex-ty described in Schedules ".A" and "8 11 (or­development as part of the Propert 1es, and So long as the amendment has no material adverse affect upon any right ot any Owner. Any amendment (1) necessa~y to bring any provision hereof into compliance with any applicable governmental ~tatute; rule Or

I regulation or jUdicial determination which shall be in conflict i therewith; (2) necessary to enable any reputable title insurancE" , company to issue title insurance coverage with respect to iH1Y

portion of the Comn'tercial Property subject to the CO}[lmel;"cL1~1 Declaration; (3) required by any state, tederal or county agency; (4) required by an inatitutional or governmental lender Or purchaser ot mort9age loans, includ ing, for example and not in limitation, the Federal National Mortgage Association Or Federal Home LOan Corporation. to enable such l~nder or purch~$Qr to make or purchase mortqage loam~ or any portion of tile Comme.t'cia 1 property; or (5) necessary to enable any governmental ag~ncy Or reputable private insurance company or institutional lenc1er to insure mortgage loans on any portion ot the Commercial Property shall not be deemed material. Thereafter and oth@rwise., this D@c~aration may be amended only by the affirmative vote or written consent, or any combination thereof, of Me~bers representing seventy-five (75%) percent of ·the total votes ot the Association, inc~uding seventy-five (75t) percent of the votes held by Member. other than the Oeclarant. However, the percentage of vot@$ necessary to amend a speCific clause shall not be less than tho pr~scribed percentage of affirmative votes required for action to be taken under that clause. Any amendment to be effective must be recorded in the public records of aerkel~y County, West Virginia.

If An Own~r consents to any amendment to this oeclar~tlon or the by-Laws, it will be conclusively presumed that such Owne~ has the authority so to consent and no contrary provision in any Mort9age or contract between the Owner and a third party will affect the validity ot such ~mendment.

NO amendment may b. made during the Declarant Class "B" Control Period without the written consent of Oeclar~nt or the assignees of such right or privilege. No lIImendmant may removIB, revoke, or modify ,llny right or privilege of Declarant without the W'ritt~n coris~nt of DeClarAnt Or the assignee of such right or privilege. No amendment may impair the validity or p~iority of the lien of any Mortgage held by a Mortgagee or impAir tha rights grante,d to the Mortgage@s herein without the prior written consent of such Mortgageea.

II' Section 3. .l.nWnification. The AS50ei~tion shall" indemnify every officer, director, and committee member againat any :~nd all expenses; inclUding counsel fe~s, reasonably incurred by or "imposed

II upon such oUicer, director, or c::mittee member in connection with

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any ~ction, suit, o~ other prQce~dlng (including •• ttle~~nt of any suit or proceeding, if approved by the then Bo~rd of Directo~s) to which h@ or she may be a party by re~Bon of being or having bo~n ~n offic~r, directo~; or committee member. The officers, dir~ctors,

,and committee membl!:!rs shall not be liable for any mistake of :1 judgment; negligent or otherwist':!, except for thei.: own individual . willful misfeasance, malfeasanC8, misconduct, or bad faith. The Ii otficers and directors shi!lll have no personal liability with

I resp~ct to any contract or other commitment made by them, in 9Qod faith, On behalf of the Association (8xoept to the extent that such

I officers or directors may also be Hembers or the Association), 8nd the Assooiation shall indemnify and forever hold each such officer

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and dlrectol" free and harml~as against any and all liability to oth~l"S on account of any suCh contract or commitment. Any right to indemnification provided for herein Shall not be exclusive of other ~i9hts to which any officerl director, or committee member~ or forme~ Officer, director, or committee member may be entitled. The Association shall, as a common expense, maint~in adequ~te gene~al liability and officers' and directors' liability insurance to fund this obligation, it such insurance is reasonable available.

se~t.ion 4. $-'Y..erability. Invalidation of anyone of these covenants or restrictiohS by jud9ment or court order shall in no w~y affect. any other provisions, which shall remain in full force and t:!:ffect.

Section 5. Right of Enta. The Association shall havt:!: the right., but not the obligation, to enter into ~ny unit for emergency, security, and safety, which right may be exercised by the Association's Board of Directors, offic~~s, agents. employees, mantlgers, and all policemen, fi,remen, ambulanct:!: personnel, and similar eme~gency per~onn@l in the performance of their ~espective duties. Except In an emergency situation, entry shall only be during reasonable hours and After notice to the OWner. This right of @ntry shall include the right of the A •• ociation to @nter a Unit to cure any condition which may increase the possibility of fire or other hazard in the event an Owner fails or refuses to cur8 the condition upon reque~t by the Board.

section g. I.!..lUgatlon. No judicial or administrative proct!!leding shall be commonc~d or prosecuted by the Association unless Approved by a vote of seventy-fiVe (75\) percent of the Members. Thi. Section shall not apply, howev~r, to (a) actions brought by the Associtltion to enforce tho provisions of this Declaration (including, without limitation, the foreclosure of 11ens), (b) the imposition and collection of aS~essments as provided in Article X hereof, (e) proceedings involving challenges to a~ valorem taxation, or (d) counterclaims brought by the Associ~tion in proceedings instituted against it. This Section shall not b8 amended unless such 8mendme:nt is made by the Declttrant or is approved by the perc@ntage votes, ~nd pursuant to tho S8me procedures, necessary to institute proce~dinqs 8S provided above.

IN WITNess WHEREOF, the undersigned Declarant has t!!Ixecuted this Declaration of Covenants, Conditions, and Restrictions this ~ day of July, 1993.

Rock Cliff Partners Limited P~rtnership, a West Virgini~ partnership, by Red Hawk Corporation, a corpol"ation, ita General Partner

dent

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STA'l'E OF WEST VIRGINIA..

COUNTY Of BERKELEY. to-wit:

The foregoing instrument was acknowledged before me this ~ day I' i' Ii of JUly, 199]. by JOSEPH TYSZKIEWICZ, president of Red Hawk i

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co~por~~ion, a corporation, General Partner of ~OCK CLIFF PARTNERS,

LIMITED I?'ARTNERSHIP, a West Virginia partnership, in my ~a.id County

and State.

{'!f'~!"""~~ Nor,uw pue~lI::

~1.ireOl' "I1!5TVlf'!1J.1N1A J.iIO-lIO:LLI; L. CAIN '?~~~T8I.!1v<:I!ST.

WlI' !,N.'Iftl1A(I. W'f ~t IIrC_....,.,~'-IIMZII.tflll

My commission ·expires:

November Zq, {qqq

~tdt,/jrJ il c,;"",L) __ _ Notal'Y publiC

Prep~red by 3, Lee van Metre r Jr •• Attorney at Law r 126 East Burke street, P.O, Box 2629. M~~tinsburg, WV 25401-5429.

046S4\92S01\DRYRUN.D!C rlle "0, 92-RE-014

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