G. RESPONSIBILITIES OF OWNERS AND THEIR AGENTS

2. Applicants to the ARC have the responsibility to familiarize themselves with the policies and requirements of the ARC, as stated in this Handbook prior to submission of the application.  Submission of plans or details knowingly inconsistent with the policies and requirements is not permitted.  ARC approval of plans or details that are not consistent with this Handbook or are inconsistent with other information submitted in the application, knowingly or by accident, may be subsequently voided by the ARC unless specific variances and/or notes are approved by the ARC.  In addition to or in lieu of voiding an approval, the ARC may require construction changes, removal of improvements, monetary charges for plan review, and/or forfeiture of the surety deposit as liquidated damages.  It is the burden of the applicant to ensure that details on the architectural and site plans are consistent with the graphic elevations of the front, rear and sides of the proposed construction.  For example, elements must scale accurately and be inclusive in exterior views.

3.  The ARC may refuse to accept any proposed representative of the Owner as the designated Agent of the Owner, as the concept of an Agent is discussed herein, as the communication link and authorized representative between the ARC and the Owner, if, in the sole discretion of the ARC or ARC Manager, the proposed representative has participated in a history of non-compliance with ARC policies, failed in the communication link between Owners and the ARC, or otherwise is considered not able to function effectively as the Agent between the ARC and the Owner.  In such situations, the ARC may require the Owner to be the applicant and communications contact, attend any ARC meetings regarding the application or construction progress, and post required surety deposits as considered appropriate by the ARC Manager.  The ARC is not required to justify its decisions in this regard beyond stating a reasonable concern.  In not accepting a proposed representative of the Owner as an Agent between the ARC and the Owner, the ARC may not be held liable for an alleged interference of contract between the Owner and a contractor.  The Owner may continue to be in contract with their contractor of choice, provided that: the contractor is appropriately licensed to conduct general contracting business in James City County, Virginia; the contractor does not have any outstanding violations of ARC and Ford’s Colony Homeowners’ Association (FCHOA) policies; and the contractor continues to comply with ARC and FCHOA policies, such as jobsite cleanliness, compliance with plans approved by the ARC in a timely manner, and appropriate construction progress to be completed within twelve months.  However, the ARC will consider the Owner as the applicant and builder for its purposes of communication, compliance with ARC policies, and the onsite builders sign will be in the name of the Owner.

4.  The ARC may, in its sole discretion, require certain additional protections or due diligence for itself, Ford’s Colony, and/or on behalf of the property owner prior to accepting any Agent/contractor as an authorized representative of the Owner or prior to approving any application for construction, on a case-by-case basis, with or without similar precedent.  Such precautions may include, but not be limited to, requiring an addendum to the owner’s construction contract that offers sufficient protection to an owner in the issues of contractor default and termination of contract if there is reasonable suspicion, in the opinion of the ARC or ARC Manager, that the contractor has history of: a. inadequate monthly progress toward a completion date within twelve months of ARC approval; or, b.  inadequate workmanship or supervision that has led to forfeiture of a surety deposit; or, c. a failure to construct in accordance with building codes or environmental regulations/policies; or, d. a failure to comply with ARC and FCHOA policies and directives; or e. subjecting property to liens or other legal encumbrances; or, f.  a bankruptcy; or, g.  a failure to obtain or maintain adequate insurance for builder’s risk, worker’s compensation, and general liability; or, h.  a complaint of suspected commingling of funds between separate contracts; or, i.  a failure to pay suppliers, material men, and sub-contractors in a complete and timely manner; or, j. other reasons as considered necessary by the ARC Manager.  Such precautions may also include the requirement for the Owner and/or builder to provide additional surety deposits as determined by the ARC.

5.  An application submitted to the ARC for approval of construction of improvements to a homesite becomes a contract between the Property Owners, the Builders, and the ARC (the Parties) when (1) the ARC issues final approval of the application as evidenced by the letter issued by the ARC along with any conditions of approval and, (2) the construction commences as evidenced by clearing and/or any work conducted on the site.  The intent of the contract is that the Property Owners and the Builder guarantee the completion of the improvements in conformance with the plans and specifications approved by the ARC and in conformance with the policies of the ARC as stated in this Handbook, as amended from time to time, as agreed in Exhibit A, signed by the Property Owners and the Builder.  The Parties acknowledge and agree, as evidenced by the submission of the application to the ARC for final approval, the ARC’s approval of the application with conditions, and commencement of construction as evidenced by clearing and/or any work conducted on the site, that all Parties consider the surety deposits held by the ARC for the applicable homesite as being held as potential liquidated damages if the Property Owners and/or Builder fail to comply with the conditional approval granted by the ARC and the policies of the ARC as stated in this Handbook.  The ARC will conditionally approve the application for construction if the application conforms to the policies stated in this Handbook or the ARC will refund the monies provided for the surety deposits and fees, except the fees for the plan review process.  The ARC will promptly refund the amount of the surety deposits submitted to the ARC upon the ARC’s determination that the improvements have been completed as approved and within 12 months of commencing construction, and the Owner’s application for the final inspection is received prior to the end of the 12th month, unless otherwise extended by the ARC prior to the end of the 12th month.  By application to the ARC for approval of improvements to be constructed on the homesite, the Parties agree that provisions of this Handbook, the Application for Approval, the fees submitted to the ARC, and the surety deposits held by the ARC adequately address the essential elements required in a legal contract between the Parties.