Covenants
FILED
JACION COUTY CA 2005 APR 22 PM 12:00
CANE W. THOMAS
LSL
Return to:
Bear Creek Plantation Builders, LLC
4128 Steve Reynolds Blvd.
Norcross, GA 30093
DECLARATION OF
COVENANTS AND RESTRICTIONS
FOR BEAR CREEK PLANTATION SUBDIVISION
JACKSON COUNTY, GEORGIA
THIS DECLARATION OF COVENANTS AND RESTRICTIONS is made on this 20th day of April, in the year of our lord Two Thousand Five by BEAR CREEK PLANTATION BUILDERS, LLC, a Georgia Limited Liability Corporation (hereinafter referred to as "the DeclarantỊi).
WITNESSETH:
WHEREAS, the Declarant is the owner of certain real property located in the 1747
(Attica) District, G.M., Jackson County, Georgia as more particularly described in Exhibit "A" of this Declaration; and
WHEREAS, Declarant desires to subject the real property described in Exhibit "A" hereof to the provisions of this Declaration to create a residential community of single-family housing; and
NOW, THEREFORE, the Declarant hereby declares that all the property described in Exhibit A hereof, including the improvements constructed or to be constructed thereon, shall be
held sold and conveyed subject to the provisions of this Declaration, which shall run with described property and shall be binding on all parties having any right, title or interest in the described property or any part thereof, and shall, subject to all limitations herein provided, inure to the benefit of each Owner, his heirs, grantees, distributees, successors and assigns and to the benefit of the Association. This Declaration does not purport to submit the property to the Georgia Property Owners' Association Act.
ARTICLE I - DEFINITIONS
As used in this Declaration, the following terms, unless the context shall prohibit, shall have the meanings ascribed to them in this Article I, such definitions being cumulative of those set forth elsewhere in this Declaration.
"Articles of Incorporation" shall mean the Articles of Incorporation of the Association, as the same may be amended from time to time.
"Association" shall mean the Bear Creek Plantation Homeowners Association, Inc., a Georgia non-profit membership corporation, its successors and assigns.
"Common Property" shall mean all of the real and personal property which shall be conveyed and transferred to the Association pursuant to Section 1 of Article II of this
Declaration. Common Property shall not include any Lot which shall be acquired by the Association through foreclosure of the lien in favor of the Association, as provided for in Article IV of this Declaration.
"Board of Directors" or "Board' shall mean the Board of Directors of the Association.
"Bylaws" shall mean the Bylaws of the Association, as the same may be amended from time to time.
"Development-wide Standard" shall mean the standard of conduct, maintenance, or other activity generally prevailing in the Development. Such standard may be more specifically determined by the Board of Directors and by committees required or permitted to be established by this Declaration or the Bylaws. Such determination, however, must be consistent with the Development-wide Standard originally established by the Declarant.
"First Mortgage" shall mean a Mortgage conveying a first priority lien upon or security title to any Lot.
"Improved Lot" shall mean a Lot on which there is located a structure for which a certificate of occupancy has been issued by the applicable governmental authority.
"Lot" shall mean each portion of the Bear Creek Plantation Subdivision which has been subdivided for use as an individual building lot and which is subjected to the terms, provisions, liens, charges, easements, covenants and restrictions of this Declaration applicable to Lots either
by the recording of this Declaration.
"Person" shall mean a natural person, corporation, trust, partnership or any other legal entity.
The "Subdivision" shall mean Bear Creek Plantation Subdivision as further identified and described in Exhibit A of this Declaration.
"Unimproved Lot" shall mean a Lot which is not an Improved Lot.
ARTICLE II - COMMON PROPERTY
Section 1. Common Property. The Declarant at any time and from time to time may convey to the Association or grant easement to the Association, at no expense to the Association and in accordance with this Section, real and personal property for the common use and enjoyment of the Owners (such real and personal property is hereinafter referred to as "Common Propertyi). All property which shall be transferred to the Association pursuant to this Section 1 (a) shall be conveyed to the Association by limited warranty deed free of debt encumbrance, and (b) shall be conveyed to the Association subject to the rights and easements set forth in Sections 2 and 3 of this Article II, irrespective of whether the deed of conveyance shall make a specific reference to such rights and easements. The Association hereby covenants and agrees to accept all such conveyances of Common Property.
Section 2. Members' Rights in Common Property. Every owner of any Lot shall have a non-exclusive right and easement of enjoyment and use in and to the Common Property and such right and easement shall be appurtenant to, and shall pass with, the title to the Lots) owned by such owner. Such right and easement of enjoyment and use are and shall be subject to the easements which are described in Section 3 of this Article II and to the right of the Association to promulgate reasonable rules and regulations regarding the use of Common Property, and the right of the Association, as provided in the Bylaws, to suspend the enjoyment rights of the owner of any Lot during any period in which any assessment which is due to the Association from such owner remains unpaid, and such period as the Board of Directors may consider appropriate for any infraction of its published rules and regulations. In addition, the Board of Directors may permit other persons who are not residents of any Lots to use the Common Property upon such terms and conditions, and for the payment of such fees, if any, as shall be determined by the Board of Directors.
Section 3. Easements Over Common Property. All Common Property shall be subject to, and Declarant and the Association do hereby grant, the following casements:
(a) An easement across, in, under, over and through Common Property for the purposes of the construction, installation, repair, maintenance and use of all utility and drainage facilities as exist on the date of this Declaration; and
(b) An easement in favor of Declarant for the exclusive use of such portions of the
Common Property as may be reasonably desirable, convenient or incidental to the construction and installation of improvements on, and the sale of any Lots, including, but not limited to, sales and business offices, storage areas, construction yards and signs. Such easements shall be exercisable by any and all persons who the Declarant shall authorize to exercise the same, including, without limitation, real estate sales agents and brokers and builders of residences upon the Lots, irrespective of whether such persons are affiliated with the Declarant. Such easements shall exist notwithstanding any provision of this Declaration which might be construed to the contrary, but shall terminate at such time as the construction on the Lots of residential buildings has been completed and all of the Lots shall have been conveyed to owners thereof who shall not have acquired the Lots for the purpose of immediate resale of the same. Such easements shall and do exist without affecting the obligation of the owner of any Lot to pay assessments or charges coming due during such period of time as portions of the Common Property shall be used by authorized persons pursuant to the exercise of the easements herein stated.
Section 5. Insurance.
(a) At all times during the terms of this Declaration, the Association, its successors and assigns, shall be required to keep any and all recreational facilities and any other improvements located on the Common Property fully insured by a reputable insurance company authorized to transact business in the State of Georgia with (i) fire, vandalism, malicious mischief and extended coverage insurance in an amount adequate to cover the cost or replacement of such improvements in the event of loss of any and/or all of such improvements, fixtures and contents thereof, and (ii) public liability insurance in such amounts as shall be determined by the Board of Directors as appropriate for the type of recreational activities which shall be allowed on the Common Property. Such insurance shall be written in the name of the Association.
(b) Immediately after the damage or destruction by fire or other casualty to all or any portion of any improvement covered by insurance written in the name of the Association, the Board or its duly authorized agent shall proceed with the filing and adjustment of all claims arising under such insurance and obtain reliable and detailed estimates of the cost of repair or reconstruction, of the damaged or destroyed property. Repair or reconstruction, as used in this paragraph, means repairing or restoring the property to substantially the same condition and location that existed prior to the fire or other casualty.
Any damage or destruction shall be repaired or reconstructed unless at least two-thirds (2/3) of the Class A Membership and the Class B Membership otherwise agree. If the damage or destruction for which the insurance proceeds are paid is to be repaired or reconstructed and such proceeds are not sufficient to defray the cost thereof, the Board shall, without the necessity of a vote of the Association's Members, levy a special assessment. Additional assessments may be made in like manner at any time during or following the completion of any repair or
reconstruction. If the funds available from insurance exceed the costs of repair or reconstruction or if the improvements are not repaired or reconstructed, such excess shall be deposited for the benefit of the Association.
In the event that it should be determined by the Association in the manner described
above that the damage or destruction shall not be repaired or reconstructed and no alterative improvements are authorized, then in that event the property shall be restored to its natural state and maintained as an undeveloped portion of the Development in a neat and attractive condition.
(c) The deductible for any insurance policy shall, in the event of loss from damage or destruction, be allocated among the Lot Owners, unless the Board, in its discretion, after reasonable notice and opportunity to be heard, determines that the loss is the result of negligence or willful misconduct of one or more Owners, their invitees, or lessees, then the Board may levy a specific assessment against such Owners and their Lots for the full amount of such deductible.
(d) By virtue of taking title to a Lot subject to the terms of this Declaration, each Owner acknowledges that the Association has no obligation to provide any insurance for any portion of individual Lots.
ARTICLE III. - THE HOMEOWNERS ASSOCIATION
Section 1. The Association. The Association has been formed as a non-profit corporation for the sole purpose of performing certain functions for the common good and general welfare of the residents of the Subdivision. The Association is and shall be responsible for the ownership, management and operation of the Common Property, the enforcement of the covenants and restrictions set forth in this Declaration, and the performance of such other duties and services as the Board of Directors shall deem to be in the best interests of the members of the Association.
Section 2. Membership. Every person who is, or who becomeș, a record owner of a fee or undivided fee interest in any Lot is and shall be a member of the Association; provided, however, that any such person who holds such interest merely as security for the performance of an obligation shall not be a member of the Association. The transfer of ownership of a fee or undivided fee interest in any Lot shall automatically transfer membership in the Association, and in no event shall such membership be severed from the ownership of such Lot.
Section 3. Voting Rights. The Association shall have two classes of voting membership: Class A and Class B.
Class A. The Class A members shall be all those persons holding an interest required for membership in the Association, as specified in Section 2 of this Article III, except for those persons who are Class B members. The Class A members shall be entitled to full voting privileges on the earlier of the following dates to occur: (i) the date which the Declarant may so designate by notice in writing delivered to the Association, or (ii) the expiration of seven (7) years from the date of recording of this Declaration, or (iii) at such time as all property within the development have been developed and conveyed to Owners for residential occupancy.
The Class A Members shall be entitled to one vote for each Lot owned. When more than one person is a Class A Member by virtue on an ownership interest in the same Lot, the vote for such Lot shall be exercised as they, among themselves, determine, but in no event shall more than one vote be cast with respect to any Lot. In the event of disagreement among such persons
and an attempt by two or more of them to cast the vote of such Lot, such persons shall not be recognized and the vote of such Lot shall not be counted.
The membership of Class A members shall terminate upon the members' sale of his Lot. No termination of Class A membership shall affect such members' obligation to pay
assessments, as hereinafter provided for, due and payable for any period prior to the date such termination, and there will be no refund for assessments paid for periods falling after the date of such termination.
(b) Class B. The Declarant shall be the sole Class B member. Class B membership shall be a full voting membership and, during its existence, the Class B member shall be entitled to vote on all matters and in all events. At such time as the Class A members shall be entitled to full voting privileges, as provided in paragraph (a) of this Article III, Section 3, the Class B membership shall automatically terminate and cease to exist, and the Class B member shall be and become a Class A member insofar as it may then hold any interest required for membership by Section 2 of this Article III.
From and after the date at which the Class B membership automatically terminates and ceases to exist, such membership shall not be renewed or reinstated.
Section 4. Suspension of Membership Rights. The membership rights of any Member of the Association, including the right to vote and to use the Common Property, may be suspended by the Board of Directors pursuant to the authority granted in the Bylaws. Any such suspension shall not affect such member's obligation to pay assessments coming due during the period of such suspension and shall not affect the permanent charge and lien on the member's property in favor of the Association.
Section 5. Meetings of the Membership. All matters concerning the meetings of members of the Association, including the time at which and the manner in which notice of any said meeting shall be given to members, the quorum required for the transaction of business at any meeting, and the vote required on any matter, shall be as specified in this Declaration, or in the Articles of Incorporation or the Bylaws, or by law.
Section 6. Association Acts Through Its Board of Directors. Whenever approval of, or action or inaction by, the Association is referred to or called for in this Declaration, such action, inaction or approval shall be by the Board of Directors of the Association, unless it is specifically stated in this Declaration, the Articles of Incorporation or the Bylaws with respect to such action, inaction or approval that the members of the Association must vote. No member of the Board of Directors of the Association or any officer of the Association (including, without limitation, any such individual who shall have been elected by a vote of the Class B member) shall be personally liable to any owner of any Lot for any mistake of judgment or for any other act or omission of any nature whatsoever, except for any acts or omissions found by a court of competent jurisdiction to constitute gross negligence or fraud.
Section 7. Professional Management. The Association may, but shall not be obligated to,
obtain and pay for the services of any person or other entity to manage the affairs of the Association, or any part thercof and may enter into such agreements for the management of the Common Property as the Board of Directors deems to be in the best interests of the Association.
ARTICLE IV. - COVENANT FOR ASSESSMENTS
Section 1. Creation of Lien and Personal Obligation of Assessments. Each Owner of a Lot, by acceptance of a deed therefore, whether it be so expressed in such deed, is deemed to covenant and agree to pay to the Association (1) annual assessments which shall be levied by the Association; and (2) special assessments for capital improvements. The annual and special assessments, together with interest thereon, and costs of collection including reasonable attorneys fees, shall be a charge and continuing lien upon the Lot against which each such assessment is made. Recording of this Declaration shall constitute record notice of the existence of the lien, and no further recordation of any claim of lien for assessments shall be required. Each Owner shall be personally liable for his or her portion of cach assessment coming due while he or she is the Owner of Lot, and his or her grantee shall be jointly and severally liable for such portion thereof as may be due and payable at the time of the conveyance without prejudice to the grantee's right to recover from the grantor the amounts paid by the grantec; provided, however, if the grantor or grantee shall request a statement from the Association as provided in Section 6 of this Article IV, such grantee and his or her successors, successors in title and assigns shall not be liable for nor shall the Lot conveyed be subject to a lien for any unpaid assessments against such grantor in excess of the amount set forth in the statement.
In the event that the holder of a First Mortgage or a second purchase money Mortgage of record, provided that neither the grantee nor any successor grantee on the second purchase money Mortgage is the seller of the Lot, or any other person acquires title to any Lot as a result of foreclosure of any such Mortgage, such holder or any other person and his successors, successors in title and assigns shall not be liable for nor shall the Lot be subject to any lien for assessments under this Declaration on account of any period prior to the acquisition of title. The unpaid share of the assessment shall, however, be deemed to be a common expense collectible from all of the Lots and the Owners thereof, including such holder or other person and his or her successors, successors in title and assigns. A foreclosure shall not relieve the Mortgagee in possession or the purchaser in any foreclosure sale from any liability from any assessments becoming due after the date of such foreclosure.
Section 2. Purpose of Assessment. The Assessments levied by the Association shall be used exclusively for the purpose of providing for the common good and general welfare of the members, including, but not limited to, and in addition to other purposes set forth in this Declaration, security, the acquisition, construction, improvement, maintenance and equipping of Common Property, the enforcement of the restrictions contained in this Declaration, the payment of operating expenses of the Association, the payment of taxes on Common Property, and the payment of all principal and interest due on all debts owed by the Association.
Section 3. Annual Assessment. Subject to the terms of this Article, each Lot in the Development is hereby subjected to an annual maintenance charge for the purpose of creating a
fund to be known as the "maintenance fund".
(a) The amount of the annual assessment shall be set forth in an annual budget to be prepared by the Board of Directors covering the estimated costs of operating the Association during the coming year. The budget shall include a capital contribution establishing a reserve fund, in accordance with a capital budget. The Board shall cause a copy of the budget, and the amount of the assessments to be levied against each Lot for the following year, to be delivered to each Owner at least fifteen (15) days prior to the proposed effective date. The budget and the assessments shall become effective unless disapproved by a vote of at least a majority of the total Association membership. Unless requested by the Members in accordance with the provisions for calling a special meeting by the Members, as set forth in the By-Laws, the budget and assessment may take effect without a meeting of the Members. Notwithstanding the foregoing, however, in the event the membership disapproves the proposed budget or the Board fails for any reason so to determine the budget for the succeeding year, then and until such time as a budget shall have been determined, the budget and assessment in effect for the then current year shall continue, and the Board may propose a new budget at any time during the year by causing to be delivered to the Members such proposed budget and assessment at least fifteen (15) days prior to the proposed effective date.
(b) The amount of the Annual Assessment levied against each Improved Lot shall be the same as the amount levied against every other Improved Lot, and the amount of the Annual Assessment levied against each Unimproved Lot shall be the same as the amount levied against every other Unimproved Lot. In making its determination of the relative shares of the Annual Assessment for which each of the improved Lots shall be so liable and for which each of the Unimproved Lots shall be so liable, the Board of Directors shall consider and take into account which of the Annual Expenses of the Association benefit only the Improved Lots and which of such Annual Expenses significantly disproportionately benefit the Improved Lots in contrast to the Unimproved Lots. Each Lot shall be liable for that share of every Annual Assessment which is so determined by the Board of Directors. The Board of Directors shall send a copy of the budget so adopted by it, together with a written notice of the amount of the Annual Assessment so determined for such fiscal year and the amount of such Annual Assessment which shall be levied against each Lot, to the owner of every Lot prior to the commencement of the fiscal year during which such Annual Assessment is to be paid. The amount of such Annual Assessment which shall be levied against each Lot shall be due and payable to the Association in such installments the Board of Directors shall determine, and after notice of the same shall have been given to all of the members of the Association by the Board of Directors, and shall be paid to the Association when due without further notice.
(c) The annual maintenance charge and assessment will commence as to each Lot on the first day of the month following the carliest to occur of the following events: (i) upon the occupancy of a permanent dwelling located on the Lot as a resident; or (ii) upon the conveyance by a builder who has purchased the Lot from Declarant for the purpose of erecting a dwelling thereon to an Owner or tenant for residential occupancy.
(d) Unless required by law or consented to by Declarant, neither the Declarant nor any
builder who has purchased a Lot from Declarant for the purpose of erecting a dwelling thereon shall be subject to the annual maintenance charge and assessment. Notwithstanding the preceding, the annual maintenance charge and assessment will commence as to each Lot owned by Declarant or a builder upon the occupancy of a permanent dwelling located thereon as a residence. For the calendar year in which the sale is closed, the maintenance charge shall be prorated as of the date of closing. In addition and notwithstanding anything to the contrary herein, the Declarant may contribute assessments due from it in services or materials or a combination of services and materials, rather than in money (herein collectively called "in kind contribution"). The amount by which monetary assessments shall be decreased as a result of any in kind contribution shall be the fair market value of the contribution. If the Declarant and the Association agree as to the value of any contribution, the value shall be as agreed. If the Association and the Declarant cannot agree as to the value of any contribution, the Declarant shall supply the Association with a detailed explanation of the service performed and material furnished, and the Association shall acquire bids for performing like services and furnishing like materials from three (3) independent contractors, approved by the Declarant, who are in the business of providing such services and materials. If the Association and the Declarant are still unable to agree on the value of the contribution, the value shall be deemed to be the average of the bids received from the independent contractors.
Section 4. Special Assessment. In addition to annual assessments authorized herein, the Association may levy, in any assessment year, a special assessment applicable to that year only to cover unbudgeted expenses or expenses in excess of those unbudgeted, provided that any such assessment shall have the affirmative vote of two-third (2/3) of the active votes of Members who are voting in person or by proxy at a meeting duly called for this purpose and the written consent of the Class B Member, if any. Special assessments shall be fixed at a uniform rate for all Lots.
Section 5. Effect of Nonpayment of Assessment.
(a) In the event that any member of the Association shall fail to pay, within ten (10) days after the date the same is due and payable, any annual or special assessment, or any installment of any annual or special assessment which is payable by him to the Association, the entire amount of such assessment, including the portion thereof which would otherwise be payable in installments, may be declared by the Board of Directors to be immediately due and payable in full to the Association. All such amounts so declared by the Board of Directors to be due and payable in full to the Association shall be secured by the lien of the Association on every Lot owned by the delinquent member, which lien shall bind such Lot or Lots in the hands of the then owner, and his heirs, devisees, successors and assigns.
All amounts which the Board of Directors shall declare to be due and payable pursuant to this Section 5 shall bear interest from the date of delinquency at the lower of the rate of ten (10%) percent per annum or the highest rate permitted by law, and the Association may bring legal action against the member of the Association personally obligated to pay the same, or foreclose its lien upon the Lot or Lots of such member, in either of which events such member shall also be liable to the Association for all costs and attorneys' fees which the Association shall incur in connection with the collection of such delinquent amounts.
Section 6. Statement from Association. Any Owner, Mortgagee of a Lot, person having executed a contract for the purchase of a Lot, or a lender considering the loan of funds to be secured by a Lot, shall be entitled upon request to a statement from the Association or its management agent setting forth the amount of assessments past due and unpaid together with late charges and interest applicable thereto against that Lot. Such request shall be in writing, shall be delivered to the registered office of the Association, and shall state an address to which the statement is to be directed. Failure on the part of the Association, within five (5) business days from receipt of such request, to mail or otherwise furnish a statement regarding amounts due and payable at the expiration of such five (5) day period with respect to the Lot involved to such address as may be specified in the written request therefore shall cause the lien for assessments created hereunder to be extinguished and of no further force or effect as to the title or interest acquired by the purchaser or lender, if any, as the case may be, and their respective successors and assigns, in the transaction contemplated in connection with such request. The information specified in such statement shall be binding upon the Association and upon every Owner. Payment of a $10.00 fee is required as a prerequisite to the issuance of each such statement, and the payment of the fee shall accompany any such request.
ARTICLE V. - ARCHITECTURAL CONTROL
Section 1. Architectural Control Committee.
(a) An Architectural Control Committee (the "ACC") may be established consisting of at least three (3) individuals to be appointed by the Board of Directors. The Board shall have the power to remove and/or replace a member or members of the Architectural Control Committee at any time or from time to time. Should the Board of Directors elect not to establish an
Architectural Control Committee, the Board of Directors shall act with all powers, rights, oversight, discretion and duties granted to the Architectural Control Committee under this Article V.
Notwithstanding the preceding sentences, the Declarant shall have the sole right to appoint, remove, and/or replace the members to the ACC until such time as (1) the Declarant shall terminate its right in writing, or (ii) construction on the Lots of residential buildings has been completed and all of the Lots shall have been conveyed to owners thereof who shall not have acquired the Lots for the purpose immediate resale.
(b) The members of the ACC shall appoint a Chairman from among their number and may appoint from their number such other officers and subcommittees of members of the ACC as they shall from time to time determine necessary.
(c) The ACC may hold regular meetings as may be established by the ACC. Special meetings may be called by the Chairman of the ACC and shall be called by the Chairman upon the written request of the majority of members of the ACC then in office. Regular meetings of the ACC shall be held at such time and at such place as the ACC shall specify. Notice of each regular or special meeting of the ACC shall be mailed to each member thereof at his residence or
at his usual place of business at least three (3) days before the day the meeting is to be held. Notice of regular and special meetings need not specify the purpose or purposes for which the meeting is called. Notice of a meeting need not be given to any member of the ACC who signs a waiver of notice either before or after the meeting. Attendance of a member of the ACC at a meeting shall constitute a waiver of notice of such meeting and shall constitute a waiver of any and all objections to the place of the meeting, the time of the meeting, or the manner in which it has been called or convened, except when the member states, at the beginning of the meeting. any such objection or objections to the transaction of business. At each meeting of the ACC, the presence of a majority of the members then in office shall constitute a quorum for the transaction of business. Except as otherwise provided herein, the act of a majority of the members of the ACC present at any regular or special meeting thereof at which a quorum is present shall constitute the act of the ACC. In the absence of a quorum, any member of the ACC present at the time and place of the meeting may adjourn the meeting from time to time until a quorum shall be present. At any adjourned meeting at which a quorum is present, any business may be transacted which might have been transacted at the meeting originally called. The ACC shall maintain both a record of votes and minutes for each of its meetings. The ACC shall make such records and minutes available at reasonable places and times for inspection by Members of the Association and by the Secretary. Any action required to be taken at a mecting of the ACC, or any action which may be taken at a meeting of the ACC, may be taken without a meeting if written consent, setting forth the action so taken, shall be signed by all the members of the ACC and be filed within the minutes of the proceedings of the ACC. Such consent shall have the same force and effect as a unanimous vote, and may be stated as such in any document filed by the ACC.
Section 2. Architectural Restrictions.
(a) The floor space (living area) of each Dwelling excluding open porches, patios, and garages shall not be less than one thousand five hundred (1500) sq. ft. of heated living space for a single story Dwelling and one thousand eight hundred (1800) sq. ft. of heated living space for a two story Dwelling, and no concrete block homes or used homes shall be placed upon the Lots.
(b) All Dwellings shall be of at least minimum construction standards allowed by the R1 zoning according to the Jackson County Standard Building Code, ordinances, and regulations. No outbuildings or other structures shall be constructed on any individual Lot unless such structures have the same facade as the Dwelling.
(c) There shall be no outbuilding constructed without the Dwelling being erected on the Lot first or in conjunction with the construction of the Dwelling.
(d) All Dwellings must be placed on a permanent foundation, either slab or pier, which meets the requirements of the Standard Building Code of Jackson County Government. In addition, a masonry curtain wall, unpierced except for the required ventilation and access, must be installed so that it encloses the area under the Dwelling to ground level.
(e) Utility meters for the Dwellings are to be mounted to the Dwelling rather than on a
utility pole.
(f) All dwellings must be stick built. No manufactured homes, pre-fabricated homes or modular homes shall be placed on any Lot.
Section 3. Architectural Control. No building, exterior construction, alteration, structure, addition, or erection of any nature shall be commenced, placed upon, or maintained on any part of the Development, except as is installed by the Declarant, without approval as set forth in this Section.
(a) Prior to commencement or placement of any building, exterior construction, structure, addition, alteration, or erection of any nature (including, without limitation, staking, clearing, excavation, grading, filling, construction of impervious surface, fencing, building, exterior alteration of existing improvements, change in exterior color of any existing improvements, and planting and removal of landscaping materials) within the development, complete and final plans and specifications setting forth at least the nature, kind, shape, size, location, elevation and materials shall be submitted to and approved in writing by the Architectural Control Committee.
(b) Complete and final plans and specifications as required in this Section shall consist of site plans, and construction drawings and specifications, showing or stating all aspects of the proposed improvements, including but not limited to (i) location of all structures, walks, driveways, street rights-of-way, setback lines; (ii) all landscaping, including location, height and spread, type and number of trees and shrubs and location and type of all ground cover and material, and existing trees and limits of clearing and grading; (iii) location, size and type of all fencing; (iv) architectural floor plans, elevation, wall sections and details of the Dwelling; (v) building material and color information, including color samples if requested; (vi) location of exterior lighting; and (vii) size and square footage and height of the Dwelling and all other improvements.
(c) The Architectural Control Committee shall have the right to approve or disapprove any submitted plans or specifications that are incomplete, or not in compliance with this Declaration, or are not in conformance with the Development-wide standard considering among other things the harmony of the exterior design and general quality with the existing standards of improvements on other Lots, and as to location in relation to surrounding structures and son, in ling Accly as be to contier i as then an shal bentled to stop for any construction in violation of these restrictions.
(d) In the event the Architectural Control Committee fails to approve or disapprove plans and specifications submitted under this Section within thirty (30) days of such plans being submitted to it, approval will not be required, and this Section shall be deemed to have been complied with.
(e) In the event that any construction or alteration work is undertaken or performed upon any Lot without application having been first made and approval obtained as provided in
Section, said construction or alteration work shall be deemed to be in violation of this covenant, and the person upon whose Lot said construction or alteration work was undertaken or performed may be required to restore to its original condition, at his sole expense, the property upon which said construction or alteration was undertaken or performed. Upon the failure or refusal of any person to perform the restoration required herein, the Board of Directors, or their authorized agents or employees, may, after fourteen (14) days' notice to such person, enter upon the property upon which such unauthorized construction or alteration work has been performed, and make such restoration as the Board of Directors, in the exercise of its discretion, may deem necessary or advisable. The person upon whose Lot such restoration work shall have been so performed shall be personally liable to the Association for all direct and indirect costs which the Association shall incur in the performance of such restoration work, and the liability for such cost shall be secured by all the liens, and shall be subject to the same means of collection, as the assessments provided for in Article IV of this Declaration. Such costs shall be paid to the Association by the person liable for the same at the same time as the next due Annual
Assessment payment, as provided in Article IV of this Declaration, or at such earlier time, and in such installments, as the Board of Directors shall determine.
Section 4. Declarant Exemption. Notwithstanding anything stated to the contrary herein, nothing contained in this Article shall be construed prohibiting any construction by the Declarant upon any Lot while such Lot is owned by the Declarant. Any new construction performed by the Declarant upon any Lot while such Lot is owned by the Declarant shall be exempt from the provisions of Section 3 of this Article V.
ARTICLE VI. - GENERAL COVENANTS AND RESTRICTIONS
In order to provide for the maximum enjoyment of the Lots by all of the residents thereof and to provide protection for the value of the same, the use of the Lots shall be restricted to, and shall be only in accordance with, the following provisions:
Section 1. Land Use and Building Type.
(a) The Lots shall be used only for residential purposes as defined under the R1 zoning ordinance of the Jackson County Government and as further defined by the rezoning approvals for the Subdivision. Each Lot shall be sold as a single-family residential lot, except that one or more Lots may be combined for the purpose of enlarging said Lot for the purpose of one singlefamily Dwelling.
(b) No Lot shall be subdivided without the prior written approval of the Association, and such subdivision shall conform with the zoning requirements of the Jackson County
Government. Notwithstanding any contrary statement in this Declaration, the Articles, or the Bylaws, the Declarant shall have the right to subdivide and/or relocate Lot boundaries as to Lots owned by Declarant subject only to the zoning requirements of the Jackson County Government.
(c) At no time shall any Lot or Dwelling be used for or converted to any business or commercial purpose with the exception that one or more Lots may be used as a sales office for
selling the Lots as determined by the Declarant.
(d) The Owner of any two or more contiguous Lots shall have the right to cause such Lots to be combined together by furnishing the Board of Directors with a notice of his intent to do so. Upon receipt of such notice, the Lot created by such combination shall be considered to be a single lot, except that the share of Assessments as provided for in Article IV, hereof, for which such single Lot shall be liable shall equal the total assessments for which all of the Lots which were so combined would have been liable had such combination not taken place.
(e) At no time shall any trailer, camper, tent, shack, garage, detached carport, barn, or any other like structure erected on any Lot be used as a residence, temporarily or permanently, nor shall any structure of a temporary character be used as a residence.
(1) No signs shall be permitted on individual Lots other than Lot numbers and Lot Owner's names, with the exception of "Home or Lot For Sale" signs,
(g) All propane, gas, oil, or other fuel storage tanks or containers shall be buried beneath the ground or be placed in a location that shall not be visible from the public right-of-way fronting the Dwelling.
(h) All driveways must be paved with asphalt, concrete, or other permanent decorative stone and tied into the existing road pavement. Lot Owner shall re-grass the right-of-way after installing the driveway.
(i) No clotheslines, drying racks, or fences used for drying clothes shall be constructed or maintained on any Lot.
(i) Exterior antennas for television, radio, or any type of transmission shall be located at the rear of the residence or behind the chimney so as to be unobtrusive to the Lot Owners.
(k) All Lots will have a concrete sidewalk running from front Lot corner along the entire right-of-way to front Lot corner as required by the Jackson County Planning Office.
Section 2. Building Location. No building shall be located on any Lot within twenty (20) feet of an adjacent side yard property line, thirty-five (35) feet of the road right-of-way, or forty (40) feet of the rear yard property line. All recorded plat building setback lines and Jackson County regulations shall override these restrictions when applicable.
Section 3. Lot Clearing. No Lot shall be extensively cleared without the prior written approval of the Association.
Section 4. Nuisances.
(a) There shall not be maintained any plants, animals, device, or thing of any sort whose activities or existence in any way is noxious, dangerous, unsightly, unpleasant, or of a nature as
may diminish or destroy the enjoyment of the Development.
(b) Any unsightly Lot appearance such as, but not limited to, trash, fallen trees, dead trees, tall unkept grass or undergrowth or any other type debris must be disposed of by the Lot Owner. If unsightly conditions persist, the Association may have the same cleaned up and the Lot Owner agrees to reimburse the Association the cost of the same.
Section 5. Garbage and Refuse Disposal.
(a) No Lot shall be used or maintained as a dumping ground for rubbish. Trash, garbage, and other waste shall be kept only in sanitary containers and be regularly removed and shall not be allowed to accumulate.
(b) No junk cars, junk boats, junk trailers, junkyards, trash dumps or unsightly debris shall be placed upon any Lot.
Section 6. Appearance of Lots.
(a) All boats shall be placed in carports, boathouses, or stored on the Lot behind the Dwelling away from the sight of the public road.
(b) All Lots shall be maintained in a manner as not to deface the Subdivision. (c) The owner of each Lot assumes the full responsibility for the Lot maintenance, and shall maintain the Lot in a neat, orderly, and clean state.
Section 7. Livestock. No cows, horses, sheep, goats, pigs, chickens, or other livestock or fowl shall be permitted to be kept on the Lots. Dogs, cats and other household pets may be kept if properly leashed or penned and shall be permitted on the Lots provided they are not kept, bred, or maintained for any commercial purpose. However, no dog yards shall be permitted which are offensive in odor or design or offensive to adjoining property or Lot Owners and shall be located on the Lot where it will not be seen from the public road.
Section 8. Hunting. There shall be no hunting in the Subdivision.
Section 9. Firearms. There shall be no discharging of firearms in the Development. For the purposes of this Declaration, firearms shall include, but not be limited to, BB Guns and Pellet Guns.
ARTICLE VII - EFFECT OF FAILURE TO MAINTAIN LOT
In the event that the owner of any Lot shall fail to maintain all portions of such Lot in a condition which is satisfactory to the Board of Directors, the Board of Directors shall have the right, exercisable by it or through its agents or employees, and after giving to the owner of such Lot at least fourteen (14) days' notice and an opportunity to correct the unsatisfactory condition,
to enter upon such Lot and correct the unsatisfactory condition, including, without limitation, cutting the grass, weeds, and other vegetation and removing dead trees, shrubs and other plants. The owner of the Lot upon which such maintenance work is performed by the Association (or its agents or employees) shall he personally liable to the Association for all direct and indirect costs as may be incurred by the Association in connection with the performance of such maintenance work, and the liability for such costs shall be secured by all the liens, and shall be subject to the same means of collection, as are the assessments and charges provided in Article IV of this Declaration. In addition, all such costs shall be paid to the Association by such owner at the same time as the next due Annual Assessment payment, as provided in Article IV of this Declaration, or at such carlier time, and in such installments, as the Board of Directors shall determine.
ARTICLE VIII - EASEMENTS
Section 1. Drainage and Utilities. Easements are reserved to the Declarant and
Association, their successors and assigns, for installation and maintenance of utilities (including without limitation electrical power, gas, water, telephone, and lines for security systems and cablevision systems which may now or hereafter be installed for the benefit of all or substantially all of the Lots in the Subdivision), drainage facilities, storm sewers and sanitary sewers, over, across, and under ten (10) foot wide strips of land along the front and side lot lines of all Lots; with a further easement reserved to cut or fill at a three-to-one slope along the boundaries of all public streets or roads in the Subdivision. Storm drainage easements and flow shall not be disturbed or obstructed nor shall it be diverted from drainage easements as designated on the final plat of the Subdivision.
Section 2. Declarant Easements and Rights during Construction and Sale Period. Notwithstanding any provision contained in this Declaration, the Bylaws, Articles of
Incorporation, use restrictions, rules and regulations, and any amendments thereto, until Declarant no longer owns any Lots as defined herein, it shall be expressly permissible for Declarant and any builder or developer approved by Declarant to maintain and carry on, upon such portion of the Development as Declarant may deem necessary, such facilities and activities as may reasonably be required by the Declarant and such builder in the Development,
construction and sales activities related to property subject to this Declaration, including, but without limitation: the right of access, ingress and egress for vehicular and pedestrian traffic over, under, on or in the Development; the right to tie into any portion of the Development with driveways, parking areas and walkways; the right to tie into and/or otherwise connect and use (without a tap-on or any other fee for so doing), replace, relocate, maintain and repair any device which provides utility or similar services including, without limitation, electrical, telephone, natural gas, water, sewer and drainage lines and facilities constructed or installed in, on, under and/or over the Development; the right to carry on sales and promotional activities in the Development; and the right to construct and operate business offices, signs, construction trailers, material storage areas, model residences, off-street parking areas, and sales offices. Declarant and any such builder or developer may use residences or offices owned or leased by Declarant or such builder or developer as model residences and sales offices. Rights exercised pursuant to this reserved easement shall be exercised with a minimum of interference to the quiet enjoyment of affected property, reasonable steps shall be taken to protect such property and damage shall be
repaired by the person causing any damage at its sole expense.
ARTICLE IX - MORTGAGEE PROVISIONS
The following provisions are for the benefit of holders of first Mortgages on Lots in the Subdivision. The provisions of this Article apply to both this Declaration and to the Bylaws, notwithstanding any other provisions contained therein.
Section 1. Notices of Action. An institutional holder, insurer, or guarantor of a first Mortgage, who provides written request to the Association (such request to state the name and address of such holder, insurer, or guarantor and the Lot number, therefore becoming an "eligible holder"), will be entitled to timely written notice of:
(a) any condemnation loss or any casualty loss which affects a material portion of the Community or which affects any Lot on which there is a first Mortgage held, insured, or guaranteed by such eligible holder;
(b) any delinquency in the payment of assessments at charges owed by an Owner of a Lot subject to the Mortgage of such eligible holder, where such delinquency has continued for a period of sixty (60) days; provided, however, notwithstanding this provision, any holder of a first Mortgage, upon request, is entitled to written notice from the Association of any default in the performance by an Owner of a Lot of any obligation under the Declaration or Bylaws of the Association which is not cured within sixty (60) days; or
(c) any lapse, cancellation, or material modification of any insurance policy maintained by the Association; or
Section 2. No Priority. No provision of this Declaration or the Bylaws gives or shall be construed as giving any Owner or other party priority over any rights of the first Mortgagee of any Lot in the case of distribution to such Owner of insurance proceeds or condemnation awards for losses to or a taking of the Common Property,
Section 3. Notice to Association. Upon request, each Lot Owner shall be obligated to furnish to the Association the name and address of the holder of any Mortgage encumbering such Owner's Lot.
Section 4. Failure of Mortgagee to Respond. Any Mortgagee who receives a
written request from the Board of Directors to respond to or consent to any action shall be deemed to have approved such action if the Association does not receive a written response from the Mortgagee within thirty (30) days of the date of the Association's request.
ARTICLE X - AMENDMENT
For so long as the Declarant retains the right to appoint and remove directors of the Association, this Declaration may be amended unilaterally at any time and from time to time by
Declarant for any purpose. Thereafter and so long a there is Class B Membership, the Declarant may amend this Declaration unilaterally (a) if such amendment is necessary to bring any provision hereof into compliance with any applicable governmental statute, rule, or regulation or judicial determination which shall be in conflict therewith; (b) if such amendment is necessary to enable any reputable title insurance company to issue title insurance coverage with respect to the Lots subject to this Declaration; (c) if such amendment is required by an institutional or governmental lender or purchaser of Mortgage loans, including, for example, the Federal National Mortgage Association or Federal Home Loan Mortgage Corporation, to enable such lender or purchaser to make or purchase Mortgage loans on the Lots subject to this Declaration; or (d) if such amendment is necessary to enable any governmental agency or reputable private insurance company to guarantee or insure Mortgage loans on the Lots subject to this Declaration; provided, however, any such amendment shall not adversely affect the title to any Owner's Lot unless any such Lot Owner shall consent thereto in writing.
The Board of Directors is authorized amend this Declaration without consent of the Owners to submit the Development to the Georgia Property Owners' Association Act, O.C.G.A. Sections 44-3-220 et seq., provided however, that any such amendment shall require the written consent of the Declarant so long as the Declarant owns any property within the Development.
In addition to the above, this Declaration may be amended upon the affirmative vote or written consent, or any combination thereof, of Owners of at least two-thirds (2/3) of the Lots (other than Lots of Declarant so long as the consent of Declarant is required) and the consent of Declarant (so long as the Declarant owns any property for development and/or sale in the Subdivision). Amendments to this Declaration shall become effective upon recordation, unless a later effective date is specified therein. No provision of this Declaration which reserves or grants special rights to the Declarant shall be amended without the prior written consent of the Declarant so long as the Declarant owns any property primarily for development and/or sale in the Subdivision.
Any lawsuit challenging any aspect of an amendment to this Declaration must be filed in a court of competent jurisdiction in the county in which the Subdivision is located within one (1) year of the recordation of such amendment.
ARTICLE XI - GENERAL PROVISIONS
Section 1. Term. This Declaration and Restrictions contained herein shall run with and bind the property for a period of twenty (20) years from and after the date when this Declaration is filed for record with the Clerk of Superior Court of Jackson County, Georgia, after which time this Declaration and Restrictions shall be automatically renewed for successive periods of ten (10) years; provided, however that after the end of the said twenty (20) year period and during any ten (10) year renewal period (but only during such renewal period), this Declaration and the Restrictions contained herein may be terminated by an instrument executed by the proper Association officers and recorded in the Office of the Clerk of Superior Court of Jackson County, Georgia, or in such other place of recording as may be appropriate at the time of the execution of such instrument, pursuant to a resolution approving such termination which is
approved by two-thirds (2/3) of the Class A Members of the Association.
Section 2. Enforcement. This Declaration and the Restrictions contained herein shall inure to the benefit of and shall be enforceable by (a) the Declarant so long as it is an Owner, (b). the Association, and (c) each Owner, his heirs, devisees, legal representatives, successors and assigns. The failure of the Declarant, the Association, or the Owner of any Lot, his or its respective heirs, legal representative, devisees, successors, and assigns, to enforce any
Restrictions herein contained shall in no event be considered a waiver of the right to do so thereafter, as to the same violation or breach, or as to any violation or breach occurring prior to or subsequent thereto, or as to the same violation or breach by the Owner of any other Lot.
Section 3. Severability. Invalidation of any one of these Restrictive Covenants and Use Conditions by judgment or court order shall in no way affect any of the other provisions, which shall remain in full force and effect.
Section 4. Headings. The headings of the Articles and Sections heretofore are for convenience only and shall affect the meaning or interpretation of the contents of this
Declaration.
Section 5. Gender. Throughout this Declaration, the masculine gender shall be deemed to include the feminine and neuter, and the singular, the plural, and vice versa.
Section 6. Variances and Waivers of Restrictions. Not withstanding anything to the contrary herein, the Declarant or the Board of Directors, or the designee of either of them shall be authorized to grant individual variances from any of the provisions of this Declaration, the Bylaws, and any rule, regulation, or use restriction promulgated pursuant thereto if it determines that waiver of application or enforcement of the provision in a particular case would not be consistent with the overall scheme of development of the Development.
Section 7. Delegation and Assignability. Declarant shall at all times and from time to time have the right to delegate any and all function herein reserved or granted to it. Further, notwithstanding any other provision contained herein to the contrary, Declarant shall have the right at all times and from time to time to fully transfer, convey, and assign all or any part of its respective right, title and interest subject to all obligations of the Declarant, also herein contained in respect thereto, and such transferee, grantee or assignee shall be deemed to have assumed the same.
Section 8. No Liability. Declarant has, using best efforts and all due diligence, prepared and recorded this Declaration so that each and every Owner shall have the right and power to enforce the terms and provisions of this Declaration against every other Owner. However, in the event that this Declaration or any provision herein is, for any reason whatsoever, unenforceable by an Owner (or any other person in a court of law or otherwise), Declarant shall have no liability of any kind as a result of such unenforceability, and each and every Owner by
acceptance of a deed conveying a Lot, acknowledges that Declarant shall have no such liability. In addition, neither the Declarant nor the Association shall have any liability of any kind as a
result of any failure to enforce any provision contained in this Declaration.
Section 9. Rule against Perpetuities. If any of the covenants, conditions, restrictions or other provisions of this Declaration shall be unlawful, void, or voidable for violation of the rule against perpetuities, then such provisions shall continue only until twenty-one (21) years after the death of the last survivor of the now living descendants of George Bush, the current President of the United States of America.
Section 11. Merger. There shall be no merger of any of the covenants, conditions, restrictions or easements created or reserved hereby the Declarant, by reason of the fact that Declarant may own or hold the estate or interest both encumbered and benefitted by such covenants, conditions, restrictions or easements, and no such merger shall occur unless and until Declarant, while owning all of the estate or interest shall execute a written statement or instrument affecting such merger and shall duly record the same.
IN WITNESS WHEREOF, the Declarant has caused these Declarations of Covenants and Restrictions to be duly executed and sealed the day first herein written.
Signed, Sealed and Delivered in the Bear Creek Plantation Builders, LLC, a presence of: Georgia Limited Liability Company
Pence s Chanle(80) Witness By:
IDA-S Member/Manager
BUNDY
Brenda S. Bat OTARY
Notary Public *
Notary Public, Gwiped C My Commission E
Century Funding, Ltd., a Georgia Limited Partnership
Ranata Delada K. Chandler (Scal. Witness By:
NOTARY General Partner
Brenda S. Bit dove *
Notary Public
Notary Public, Gwinnett Coul My Commission Expires Marc pdo..
EXHIBIT IAI
All that tract or parcel of land lying and being in the 1747th District, G.M., Jackson County, Georgia, being all of Bear Creek Plantation Subdivision, as per plat recorded in Plat Book 62, page 239, Jackson County, Georgia Records, which plat is incorporated herein by reference for a more detailed description. Being the same property conveyed to Century Funding, Ltd. By GMB Builders, LLC by Warranty Deed dated 10/22/2002 and recorded in Deed Book 28B, Page 200, aforesaid records.