Covenants
FILED I OFFICE
OR COURT
POCIA 03 MAY 16 PM 3:41
ẠỊCLERK Return to:
Linda B. Curry, Esq.
Weissman, Nowack, Curry & Wilco, P.C.
One Allance Center, 4th Floor
3500 Lenox Road
Atlanta, Georgia 30326
DECLARATION OF CONDOMINIUM
FOR
WHITEHALL MILL CONDOMINIUM
WEISSMAN, NOWACK, CURRY & WILCO, P.C.
Attorneys
One Alliance Center, 4th Floor
3500 Lenox Road
Atlanta, Georgia 30326
(404) 926-4500
COPYRIGHT (c) 2003.
All rights reserved. This Declaration may be used only in connection with the sale of property at Whitehall Mill Condominium and the operation of the Whitehall Mill Condominium Association, Inc.
BOOK 2413 PAGE 325
009400 256991-6ł
STATE OF GEORGIA
COUNTY OF ATHENS-CLARKE
DECLARATION OF CONDOMINIUM
FOR
WHITEHALL MILL CONDOMINIUM
THIS DECLARATION is made on the date set forth below by Whitehall Mill, LLC, a Georgia limited liability company (hereinafter referred to as "Declarant);
WITNESETH
WHEREAS, Declarant is the owner of the real property which is located in Athens-Clarke County, Georgia and is described in Exhibit "A" attached hereto and incorporated herein by this reference; and
WHEREAS, a plat of survey related to the Condominium prepared by Pinion & McGaughey Land Surveyors dated October 29, 2002 and last amended on May 8, 2003, was filed in Condominium Plat Book _ -, Page(s) 22, Athens-Clarke County, Georgia Records; and Inc. were hed in Condominium lain an a ciet on prepared by Pim sten Athens charke .. of the Athens-Clarke County, Georgia Records; and
WHEREAS, Declarant desires to subject the real property described in Exhibit "A" hereto, including the improvements thereof, to the provisions of this Declaration and to the Georgia Condominium Act;
NOW, THEREFORE, Declarant hereby declares that the real property described in Exhibit "A" of this Declaration, including the improvements located thereon, is hereby submitted and made subject to the form of ownership set forth in the Georgia Condominium Act, and is hereby subjected to the provisions of this Declaration. By virtue of the recording of this Declaration, said property shall be held, sold, transferred, conveyed, used, occupied, and mortgaged or otherwise encumbered subject to provisions of the Georgia Condominium Act and the covenants, conditions, restrictions, easements, assessments, and liens set forth in this Declaration, which are for the purpose of protecting the value and desirability of, and which shall run with the title to, the real property subject to this Declaration, and shall be binding on all persons having any right, title or interest in all or any portion of the real property subject to this Declaration, their respective heirs, legal representatives, successors, successors-in-title and assigns, and shall be for the benefit of all owners of the property subject to this Declaration.
B00K 24 1 3 PAGE 326
256991-6
TABLE OF CONTENTS
1. NAME...
2. DEFINITIONS.. 1
LOCATION, PROPERTY DESCRIPTION, PLATS AND PLANS 3 4. UNITS AND BOUNDARIES.. 3 5. COMMON ELEMENTS.. 5 6. LIMITED COMMON ELEMENTS.. 5 7. ASSOCIATION MEMBERSHIP AND ALLOCATION OF VOTES
8. ALLOCATION OF LIABILITY FOR COMMON EXPENSES
9. ASSOCIATION RIGHTS AND RESTRICTIONS. .. 7 10. ASSESSMENTS.. ... 9 11. INSURANCE .. 12 12. REPAIR AND RECONSTRUCTION .. 15 13. ARCHITECTURAL CONTROLS.. .. 16 14. USE RESTRICTIONS.. ... 19 15. LEASING ... 26 16. SALE OF UNITS. ... 29 17. MAINTENANCE RESPONSIBILITY .. 29 18. MORTGAGEE'S RIGHTS 32 19. GENERAL PROVISIONS.. 34 20. EMINENT DOMAIN 36 21. EASEMENTS.. . 37 22. AMENDMENTS.. 39 23. SEVERABILITY .. 40 24. DECLARANT RIGHTS... 41 25. EXPANSION OF THE CONDOMINIUM 41 26. PREPARER.. 42
BOOK 2413 PAGE 827
256991-6
EXHIBITS
DESCRIPTION OF SUBMITTED PROPERTY ..
UNDIVIDED PERCENTAGE INTEREST IN THE COMMON ELEMENTS AND
LIABILITIES FOR COMMON EXPENSES ..B"
DESCRIPTION OF ADDITIONAL PROPERTY
BYLAWS...
BOOK 2413 PAGE 328
256991-6
DECLARATION OF CONDOMINIUM
FOR
WHITEHALL MILL CONDOMINIUM
T. NAME.
The name of the condominium is Whitehall Mill Condominium (hereinafter sometimes called 'Whitehall Mill" or the "Condominium," as further defined herein), which condominium is hereby submitted by Declarant to the Georgia Condominium Act, O.C.G.A. § 44-3-70, et seg. (1991 and Supp. 2001).
DEFINITIONS.
Generally, terms used in this Declaration, the Bylaws, and the Articles of Incorporation shall have their normal, generally accepted meanings given in the Act or the Georgia Nonprofit Corporation Code. Unless the context otherwise requires, certain terms used in this Declaration, the Bylaws and the Articles of Incorporation shall be defined as follows:
Act shall mean the Georgia Condominium Act, O.C.G.A. § 44-3-70, et seg. (1991 and Supp. 2001), as such Act may be amended from time to time.
(b) Additional Property shall mean that property described in Exhibit "C" attached hereto and incorporated herein, which Declarant may, but shall have no obligations to, submit to the Condominium as provided in this Declaration.
Architectural Control Committee or ACC shall mean the committee established to exercise the architectural review powers set forth in Paragraph 13 hereot.
(d) Area of Common Responsibility shall mean and refer to the Common Elements, together with those areas, if any, which by the terms of this Declaration or by contract or agreement with any other person or entity, become the responsibility of the Association.
Articles or Articles of Incorporation shall mean the Articles of Incorporation of Whitehall Mill Condominium Association, Inc., which have been filed with the Secretary of State of the State of Georgia.
Association shall mean Whitehall Mill Condominium Association, Inc., a Georgia nonprofit corporation, its successors or assigns.
(g) Board or Board of Directors shall mean the body responsible for management and operation of the Association.
Bylaws shall mean the Bylaws of Whitehall Mill Condominium Association, inc., attached to this Declaration as Exhibit "D" and incorporated herein by this reference.
Common Elements shall mean those portions of the property subject to this Declaration, which are not included within the boundaries of a Unit, as more particularly described in this Declaration.
BOOK 2413 PAGE 329
Common Expenses shall mean the expenses incurred or anticipated to be incurred by the Association for the general benefit of the Condominium including, but not limited to, those expenses incurred for maintaining, repairing, replacing, and operating the Common Elements.
(k) Community-Wide Standard shall mean the standard of conduct, maintenance, or other activity generally prevailing within the Condominium. Such standard may be more specifically determined by the Board of Directors and the Architectural Control Committee.
Condominium shall mean all that property described in Exhibit *A" attached hereto and incorporated herein by this reference, submitted to the provisions of the Act by this Declaration and any property described in Exhibit "C" that is later submitted to the provisions of the Act and this Declaration.
Condominium Instruments shall mean this Declaration and all exhibits to this Declaration, including the Bylaws of the Association, and the Survey and Floor Plans, all as may be supplemented or amended from time to time.
(n) Declarant shall mean Whitehall Mill, LLC, a Georgia limited liability company, its respective successors and assigns and any other Person or entity as further setforth in Section 443-71(13) of the Act. The expiration of Declarant's right to appoint the directors and officers of the Association as provided in Article III, Section 2 of the Bylaws shall not alter the status of Whitehall Mill, LLC as the Declarant herein.
Declarant's Easement Area shall mean that certain area, as shown on the Floor Plans, that Declarant has the right to use exclusively for any purpose it deems appropriate as set forth in Paragraph 21(1).
Eligible Mortgage Holder shall mean those holders of first Mortgages secured by Units in the Condominium who have requested notice of certain items as set forth in this Declaration.
Facade Easement shall mean the Deed of Gift and Agreement for an Architectural, Façade and Preservation Easement between Whitehall Mill, LLC and Athens-Clarke Heritage Foundation, Inc., dated December 21, 2002, recorded January 30, 2003, in Deed Book 2344, Page 398, et seg., Athens-Clarke County, Georgia records, as amended or as may be amended.
Floor Plans shall mean the floor plans for Whitehall Mill Condominium, filed in the condominium file cabinet of the Athens-Clarke County, Georgia records.
Historic Preservation Ordinance shall mean Chapter 8-5 of the Code of Ordinances, County of Athens-Clarke, Georgia, under which the Condominium has been given an historic landmark designation.
Limited Common Elements shall mean a portion of the Common Elements reserved for the exclusive use of those entitled to occupy one (1) or more, but less than all, Units, as more
Majority shall mean those eligible votes, Owners, or other group as the context may indicate totaling more that fifty percent (50%) of the total eligible number.
- 2BOOK 2413 PAGE 330 256991-6
9247-003
Mortgage shall refer to any mortgage, deed to secure debt, deed of trust, or other transfer or conveyance for the purpose of securing the performance of an obligation including, but not limited to, a transfer or conveyance of fee title for such purpose.
(W) Mortgage or Mortgage Holder shall mean the holder of any Mortgage.
Occupant shall mean any Person staying overnight in a Unit for a total of more than thirty (30) days, either consecutive or nonconsecutive, in any calendar year, regardless of whether such Person is a tenant or the Owner of such Unit.
Owner shall mean the record titleholder of a Unit within the Condominium, but shall not include a Person who is only a Mortgage holder.
(Z) Person shall mean any individual, corporation, firm, association, partnership, trust, or other legal entity.
(aa) Survey shall mean the plat of survey for Whitehall Mill Condominium, filed in the condominium plat book of the Athens-Clarke County, Georgia records.
(bb) Unit shall mean that portion of the Condominium intended for individual ownership and use as more particularly described in this Declaration and shall include the undivided ownership in the Common Elements assigned to the Unit by this Declaration.
3. LOCATION, PROPERTY DESCRIPTION, PLATS AND PLANS
The Condominium subject to this Declaration and the Act is located in General Militia District 217 of Athens-Clarke County, Georgia, being more particularly described in Exhibit "A" attached to this Declaration, which exhibit is specifically incorporated herein by this reference. The Survey and Floor Plans relating to the Condominium will be filed in the Athens-Clarke County, Georgia records at the time the Condominium property is submitted to this Declaration. The Survey and Floor Plans are incorporated herein by reference as fully as if the same were set forth in their entirety herein.
So long as Declarant owns a Unit, Declarant reserves the right, but shall have no obligation, to make improvements and changes to all or part of the Common Elements and the Units owned by Declarant (other than changes to the location of Unit boundaries unless expressly permitted herein), including, without limitation, addition and realignment of parking spaces, addition and reconfiguration of storage spaces, renovation and installation of changes to utility systems and facilities, rearrangement and installation of security and refuse facilities, work relating to building exteriors, and extension of the drives and utility lines and pipes located on the Condominium.
4. UNITS AND BOUNDARIES.
The Condominium will be divided into thirty-four (34) separate Units, Common Elements, and Limited Common Elements. Each Unit consists of a dwelling and its appurtenant percentage of undivided interest in the Common Elements. Each Unit shall be conveyed as a separately designated and legally described freehold estate subject to the Act and the Condominium Instruments. The Units are depicted on the Survey and the Floor Plans. Each Unit includes that part of the structure, which lies within the following boundaries:
(a) Vertical Boundaries. The perimetrical or vertical boundaries of each Unit shall be the centerline of the wall separating the Unit from the exterior wall or walls of the building and the
- 3 -
256991-6
9247-003
centerline of the wall separating the Unit from the hallway of the floor on which the Unit is located in the building. With respect to common walls between Units, the perimetrical or vertical boundary of the Units served thereby shall be the centerline of such wall. The vertical boundaries include the wallboard or other material comprising the wall of the Unit.
(b) Horizontal Boundaries.
Unit shall be the horizontal plane formed by the uppermost, unexposed surface of the wallboard or other material comprising the ceiling enclosing the uppermost story of the Unit, with such material constituting part of the Unit. The lower horizontal boundary of such Units shall be the horizontal plane formed by the lowermost surface of the subflooring on which the lowermost story of the Unit is constructed, with the flooring and subflooring constituting part of the Unit.
The horizontal boundaries of Units 3 through 30 in Building One shall be as follows. These Units do not have the lower level of a Unit located below the upper level of the same Unit. Instead, the lower level of a Unit is below the upper level of another Unit and viceversa. For example, the lower eve of Unit 3 is located below the upper level of Unit 4 and the upper level of Unit 3 is located above the lower level of Unit 4. Therefore, the lower horizontal bounaaries of the lower level of such Units shall be the horizontal plane formed by the lowermost surface of the subflooring of that Unit, with the flooring and subflooring constituting part of the Unit and the upper horizontal boundary shall be horizontal plane formed by the lowermost surface of the subfloor of the Unit above. The horizontal boundaries of the upper level of such Units shall be the horizontal plane formed by the lowermost surface of the subflooring of the upper level of that Unit, with the flooring and subflooring constituting part of that Unit as to the lower horizontal boundaries and the horizontal plane formed by the uppermost, unexposed surface of the wallboard or other material comprising the ceiling of the upper level of the Unit as to the upper horizontal boundaries. The stairwell connecting the lower level and upper level portions of such Units shall be included with the boundaries of such Units.
Additional Information to Interpret Unit Boundaries. Entry doors and exterior glass surfaces, including, but not limited to, windows, glass doors and skylights, serving the Unit shall be included within the boundaries of the Unit. Heating and air conditioning systems serving a single Unit (including any part of any such system located outside the boundaries of the Unit), all duct work for heating and air conditioning systems and appliances and plumbing fixtures within a Unit shall be part of the Unit.
If any chutes, flues, ducts, conduits, wires, pipes or other apparatus lies partially within and partially outside of the designated boundaries of the Unit, any portion thereof which serves only that Unit shall be deemed to be a part of that Unit, while any portions thereof which serve more than one (1) Unit or any portion of the Common Elements shall be deemed a part of the Common Elements.
In interpreting deeds and Floor Plans, the existing physical boundaries of a Unit as originally constructed or of a Unit reconstructed in substantial accordance with the original Floor Plans thereof shall be conclusively presumed to be its boundaries rather than the metes and bounds expressed in any deed or Floor Plan, regardless of settling or lateral movement of the building in which the Unit was located, and regardless of minor variance between the boundaries shown on the Floor Plans or in a deed and those of the Unit.
- 4 -
256991-6
9247-003
BOOK 2 4 1 3 PACE 332
The ownership of each Unit shall include, and there shall pass with each Unit, whether or not separately described in the conveyance thereof, that percentage of the right, title and interest in the Common Elements attributable to such Unit, together with membership in the Association and an undivided interest in the funds and assets held by the Association.
COMMON ELEMENTS.
The Common Elements consist of all portions of the Condominium not located within the boundaries of a Unit. The Common Elements include, without limitation, certain utility infrastructures, fences, entry feature and lighting for same, paving, walls, retaining walls, the foundation, roofs, roof decks, exterior walls of the buildings, landscape areas, outside parking areas and lighting for same, mail kiosks, stairs, hallways, roof decks, and any buildings on the Condominium that do not contain Units.
Ownership of the Common Elements shall be by the Unit Owners as tenants-in-common. The percentage of undivided interest in and to the Common Elements attributable to each Unit is set forth in Exhibit "B" attached hereto and incorporated herein by this reference. Such percentages of undivided interest may be altered only by the consent of all Owners and Mortgagees (or such lesser number of Owners and Mortgagees as may hereafter be prescribed by the Act) expressed in a duiy recorded amendment to this Declaration, except in the case of expansion of the Condominium, as provided in Paragraph 25 hereof, in which case the amendment may be approved and executed by Declarant without approval of the Owners or Mortgagees.
The Common Elements shall remain undivided, and no Owner or any other person shall bring any action for partition or division of the whole or any part thereof except as provided in the Act. Except as provided for Limited Common Elements or as otherwise provided herein, each Owner and the Association may use the Common Elements for the purposes for which they are intended, but no such use shall enter or encroach upon the lawful rights of the other Owners. 6. LIMITED COMMON ELEMENTS.
(a) The Limited Common Elements located on the Condominium and the Units) to which they are assigned are:
entry foyers, hallways, corridors, and stairs serving one (1) or more, but less than all Units but not located within a Unit, as shown on the Floor Plans, are assigned as Limited Common Elements to the Units that they serve;
the portion of the Common Elements on which there is located any portion of the air conditioning or heating system exclusively serving more than one (1) but less than all Units is assigned as Limited Common Element Units so served;
any utility meter which serves only one (1) Unit is assigned as a Limited Common Element to the Unit so served;
a Unit may be assigned one (1) or more parking spaces as a Limited Common Element. Parking spaces may be initially assigned or reassigned by amendment to this Declaration as provided in subparagraphs (b) and (c) below;
any balcony, deck or courtyard, including any steps associated with these structures, attached to and serving only one (1) Unit or shown on the Floor Plans as a
- 5 - 333 256991-6 800K 2 4 1 3 PAGE
9247-003
Limited Common Element is assigned as a Limited Common Element to the Unit to which it is attached and which it serves or to which it is assigned on the Floor Plans;
in the event carports are constructed over assigned parking spaces, then the carport structure shall be assigned as a Limited Common Element to those Units to which the underlying parking spaces are assigned.
(vil) each Unit is assigned one (1) mailbox or mail slot, to be initially assigned in the sole discretion of the Declarant.
The Association's Board of Directors, without need for a membership vote, is hereby authorized to assign and to reassign Limited Common Elements and Common Elements not previously assigned, provided that any such assignment or reassignment shall be made in accordance with the provisions of Section 44-3-82(b) and (c) of the Act. A Common Element not previously assigned as a Limited Common Element may be so assigned and a Limited Common Element may be reassigned by the Board, without the need for a vote of the Association, upon written application to the Association by the Unit Owner or Owners for whose exclusive use such Common Element is requested or whose use of the Limited Common Element previously assigned is directly affected. Upon such application, the Association shall prepare and execute an amendment to the Declaration assigning the Common Element as a Limited Common Element or reassigning the Limited Common Element, which amendment shall be executed by the Owner or Owners making such application. Such amendment shall be delivered and become effective as provided in Section 44-3-82 of the Act. For so long as the Declarant owns a Unit primarily for the purpose of sale, an amendment to assign a Common Element, not previously assigned as a Limited Common Element shall be executed by the officers of the Association, if the request is made by the Declarant. The Board has the right to approve or disapprove any such request made by any Person other than the Declarant.
For so long as Declarant owns any Unit primarily for the purpose of sale, Declarant shall have the right to sell to Unit Owners one (1) or more parking spaces, to be assigned as Limited Common Elements pursuant to subparagraphs (a) and (b) above. The proceeds of the sale of parking spaces as Limited Common Elements shall belong to the Declarant.
ASSOCIATION MEMBERSHIP AND ALLOCATION OF VOTES.
All Unit Owners, by virtue of their ownership of a fee or undivided fee interest in any Unit in the Condominium, excluding Persons holding such interest under a Mortgage, are members of the Whitenall Mill Condominium Association, Inc., and, except as otherwise provided herein or in the Bylaws, shall be entitled to vote on all matters upon which members of the Association are entitled to vote pursuant to the Declaration and in accordance with the Bylaws. Subject to the provisions of the Condominium Instruments, the Owner or collective Owners shall be entitled to one (1) equally weighted vote for such Unit.
ALLOCATION OF LIABILITY FOR COMMON EXPENSES.
Except as provided below or elsewhere in the Act or Condominium Instruments, the amount of all Common Expenses shall be assessed against all the Units in accordance with the percentage of undivided interest in the Common Elements appurtenant to the Unit as set forth in Exhibit "B" attached hereto and incorporated herein by this reference.
- 6 -
256991-6 9247-003
BOOK 2413 PAGE 334
The Board of Directors shall have the power to levy special assessments against Units pursuant to this Paragraph and to Section 44-3-80(b) of the Act as, in its discretion, it shall deem appropriate. Failure of the Board of Directors to exercise its authority under this Paragraph shall not be grounds for any action against the Association or the Board of Directors and shall not constitute a waiver of the Board's right to exercise its authority under this Paragraph in the future with respect to any expenses, including an expense for which the Board has not previously exercised its authority under this Paragraph.
Any Common Expenses benefiting less than all of the Units or significantly disproportionately benefiting all Units may be specially assessed equitably among all of the Units that are benefited according to the benefit received. Except for expenses for maintenance, repair or replacement of Limited Common Elements, which may be specially assessed, expenses incurred for the maintenance, repair or replacement of the Area of Common Responsibility, shall not be specially assessed.
Any Common Expenses occasioned by the conduct of less than all of those entitled to occupy all of the Units or by the Occupant(s), licensees or invitees of any such Unit or Units may be specially assessed against such Unit or Units.
The Condominium is served by a common water meter, and the Board shall have the authority to install submeters and assess individual Unit utilities usage charges as special assessments as provided in subparagraph (b)(i) above. This shall include the right to add a charge for the cost of overhead for such submetering, against individual Units and/or to install separate utility meters for the Units. In the event submeters are installed, the Board shall have the authority to assess individual Unit utilities usage charges, based on readings of the submeters, including a right to add a charge for the cost of overhead for such submetering and/or to install separate utility meters for the Units, or based upon reasonable estimates of utilities usage charges with periodic adjustments.
9. ASSOCIATION RIGHTS AND RESTRICTIONS.
In addition to and not in limitation of all other rights it may have, the Association, acting through its Board of Directors, shall have the right and authority;
to enter into Units for maintenance, emergency, security, or safety purposes, which right may be exerdised bricers, tre is right may be exercised by the Association's Board of Directors, officers, agents, employees, managers, and all police officers, firemen, ambulance personnel, and similar emergency personnel in the performance of their respective duties. Except in an emergency situation, entry shall be only during reasonable hours and after reasonable notice to the Owner or Occupant of the Unit. For the purposes of this Paragrapn, an emergency justitying immediate entry into a Unit shall include, but not be limited to, the following situations: a water or other utility leak, fire, strong foul odor, obvious insect infestation or sounds indicating that a person or animal might be injured or sick and require immediate medical attention. No one exercising the rights granted in this subparagraph shall be liable for trespass, damages, or in any other manner by virtue of exercising such rights. The failure to exercise the rights herein or to exercise said rights in a timely manner shall not create liability to any of the above-referenced parties, it being agreed that no duty to enter a Unit shall exist;
(b) to make and to enforce reasonable rules and regulations governing the use of the Condominium, including the Units, Limited Common Elements, and Common Elements;
- 7 -
256991-6 9247-003 BOOK 2 4 1 3 PAGE 335
(C) to enforce use restrictions, other Declaration and Bylaws provisions, and rules and regulations by the imposition of reasonable monetary fines and suspension of use and voting privileges as provided in Section 44-3-76 of the Act, as amended;
(d) to grant and accept permits, licenses, utility easements, leases, and other easements; (e) to control, manage, operate, maintain, improve and replace all portions of the Area of Common Responsibility;
(f) to represent and act on behalf of the Unit Owners in the event of damage or destruction as a result of casualty loss in accordance with the provisions of the Act and Paragraph 12 of this Declaration;
(g) to represent and act on behalf of the Unit Owners in the event of any loss resulting from condemnation or eminent domain in accordance with the provisions of the Act and Paragraph 20 of this Declaration;
(h) to acquire, hold, and dispose of tangible and intangible personal property and real property;
to collect security deposits in reasonable amounts, as determined by the Board of Directors in its sole discretion, to protect against any damage to the Condominium, including, without limitation, damage resulting from: moving in or out of a Unit; the transportation and use of construction materials in the Condominium; and the alteration, modification, or addition to a Unit and any Limited Common Element appurtenant thereto. Costs for repair of such damage may be deductible from the security deposit and any additional expenses may be specifically assessed against the Unit under
to approve contractors or subcontractors who have access to the Condominium for the purpose of making repairs or improvements to Units based on rules and regulations promulgated and adopted by the Board which may include, without limitation: financial stability of the contractors and/or subcontractors; history of compliance with the Condominium Instruments and rules and regulations of the Association; and other factors that may be reflective of quality and ability. The Board may also impose insurance requirements and collect other non-refundable deposits for use of the trash receptacle;
(k) at the sole expense of the Association, without need for a membership vote, and without the consent of any affected Unit Owner, to relocate any portion of the air conditioning, heating, plumbing, ventilating, exhaust or electrical system serving a particular Unit, provided that after such relocation, the system serving the Unit functions at least as well and at no greater cost to the Unit Owner as existed prior to the relocation; and
to close permanently or temporarily any portion of the Common Elements (excluding the Limited Common Elements), and any Common Elements the use of which is reasonably necessary for access to or from a Unit with thirty (30) days prior notice to all Owners, except that, in emergency situations requiring a temporary closing, prior notice shall not be required so long as notice is given within three (3) days after the closing explaining the reason for the closing Notwithstanding the above, the Owners may re-open closed Common Elements by a majority vote of the total Association vote, cast at a duly called special or annual meeting.
- 8 -
256991-6
9247-003 800K 2413 PAGE 336
10. ASSESSMENTS.
Purpose of Assessment. The Association shall have the power to levy assessments as provided herein and in the Act. The assessments for Common Expenses provided for herein shall be used for the general purposes of promoting the recreation, health, safety, welfare, common benefit, and enjoyment of the Owners and Occupants of Units in the Condominium as may be more specifically authorized from time to time by the Board.
Creation of the Lien and Personal Obligation For Assessments. Each Owner of any Unit, by acceptance of a deed therefor, whether or not it shall be so expressed in such deed, is deemed to covenant and agree to pay to the Association: (i) annual assessments or charges; (il) special assessments, such assessments to be established and collected as hereinafter provided; and (iii) specific assessments against any particular Unit which are established pursuant to the terms of this Declaration, including but not limited to reasonable fines imposed in accordance with the terms of this Declaration.
All such assessments, together with charges, interest, costs, and reasonable attorney's fees actually incurred, and if the Board so elects, rents, in the maximum amount permitted by the Act, shall be a charge on the Unit and shall be a continuing lien upon the Unit against which each assessment is made. Such amounts shall also be the personal obligation of the Person who was the Owner of such Unit at the time when the assessment fell due. Each Owner and his or her grantee shall be jointly and severally liable for all assessments and charges due and payable at the time of any conveyance.
Assessments shall be paid in such manner and on such dates as may be fixed by the Board of Directors; unless otherwise provided, the annual assessments shall be paid in equal monthly installments due on the first day of each calendar month. No Owner may exempt him or herself from liability for or otherwise withhold payment of assessments for any reason whatsoever, including, but not limited to, nonuse of the Common Elements, the Association's failure to perform its obligations required hereunder, or inconvenience or discomfort arising from the Association's performance of its duties. The lien provided for herein shall have priority as provided in the Act.
Delinquent Assessments. All assessments and related charges not paid on or before the due date shall be delinquent, and the Owner shall be in default.
If any monthly installment of annual assessments or any part thereof is not paid in full by the tenth (10th) day of the month or if any other charge is not paid within ten (10) days of the due date, a late charge equal to the greater of Ten and No/100 Dollars ($10.00) or ten percent (10%) of the amount not paid, or such higher amounts as may be authorized by the Act, may be imposed without further notice or warning to the delinquent Owner and interest at the rate of ten percent (10%) per annum or such higher rate as may be permitted by the Act shall accrue from the due date.
If part payment of assessments and related charges is made, the amount received may be applied first to costs and attorney's fees, then to late charges, then to interest, then to delinquent assessments, and then to current assessments.
If assessments, fines or other charges or any part thereof due from an Owner remain delinquent and unpaid for a period greater than fifteen (15) days from the date due, a notice of delinquency may be given to that Owner stating that if the assessment, fine or charge remains delinquent for more than ten (10) days from the date of the notice of
- 9 -
9247-003 600K 2413 PAGE 337
delinquency, the Board of Directors may accelerate and declare immediately due all of that Owner's unpaid installments of the annual assessment and of any special assessment without any further notice being given to the delinquent Owner. Upon acceleration, that Owner shall thereby lose the privilege of paying the annual assessment in monthly installments for that fiscal year.
If assessments and other charges or any part thereof remain unpaid more than thirty (30) days after the assessment payments first become delinquent, the Association, acting through the Board of Directors, may institute suit to collect all amounts due pursuant to the provisions of the Declaration, the Bylaws, the Act and Georgia law, including reasonable attorneys' fees actually incurred, and suspend the Owner's and/or Occupant's right to vote and the right to use the Common Elements; provided, however, the Board may not limit ingress or egress. Enforcement under this subparagraph is not dependent upon or related to other restrictions and/or other actions.
If any assessment or other charge is delinquent for thirty (30) days or more, in addition to all other rights provided in the Act and herein, the Association shall have the right upon ten (10) days written notice, and in compliance with any requirements set forth in the Act, to suspend any utility or service, the cost of which are a Common Expense, including, but not limited to, water, electricity, heat, air conditioning and cable television, to that Unit until such time as the delinquent assessments and all costs permitted under this Paragraph, including reasonable attorney's fees, are paid in full. Any costs incurred by the Association in discontinuing and/or reconnecting any utility service, including reasonable attorney's fees, shall be an assessment against the Unit.
Notwithstanding the above, only the Board may suspend any utility or service paid for as a Common Expense but only after a final judgment or judgments in excess of a total of Seven Hundred Fifty and No/100 Dollars ($750.00), or such other amount as required by the Act, are obtained in favor of the Association from a court of competent jurisdiction, the Association provides the notice required to be provided by the institutional provider of such service prior to suspension of such service, and the Association complies with any other requirements of Georgia law. A Unit Owner whose utility or service has been suspended shall not be entitled to use any such utility or service paid for as a Common Expense from any source and any such unauthorized use shall be considered a theft of services under O.C.G.A. § 16-8-5. The utility or service shall not be required to be restored until all judgments are paid in full, at which time the Association shall direct the utility or service provider to restore the utility or service. Enforcement under this subparagraph is not dependent upon or related to other restrictions and/or other actions.
Computation of Operating Budget and Assessment. It shall be the duty of the Board at least twenty-one (21) days prior to the Association's annual meeting to prepare and deliver to each member a budget covering the estimated costs of operating the Condominium during the coming year and a notice of the assessments to be levied against each Unit for the following year. The budget and the assessment shall become effective unless disapproved at a duly called and constituted annual meeting of the Association by a vote of a majority of the total Association vote; provided, however, if a quorum is not obtained at the annual meeting, the budget shall become effective even though a vote to disapprove the budget could not be called at this meeting.
Notwithstanding the foregoing, in the event that 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 as provided herein, the budget in effect for the
- 10 -
9247-003 256991-6
BOOK 2413 PAGE 338
current year shall continue for the succeeding year. In such case, the Board may propose a new budget at any time during the year at a special meeting of the Association. The proposed budget and assessment shall be delivered to the members at least twenty-one (21) days prior to the proposed effective date thereof and at least seven (7) days prior to the special meeting. The approval procedure set forth above for budgets considered at annual meetings shall also apply to budgets considered at special meetings.
Special Assessments. In addition to the annual assessment provided for in subparagraph (b) above, the Board may, at any time, and in addition to any other rights it may have, levy a special assessment against all Owners, notice of which shall be sent to all Owners. Any special assessment (except as provided in Paragraph 8(b) regarding the power to assess specially pursuant to Section 44-3-80(b) of the Act and Paragraph 12(b) herein, regarding repair or reconstruction of casualty damage to or destruction of all or part of the Condominium) which would cause the average total of special assessments levied in one (1) fiscal year to exceed Two Hundred and No/100 Dollars ($200.00) per Unit, shall be approved by a majority of the total Association vote
Capital Reserve Budget and Contribution. The Board of Directors shall annually prepare a capital reserve budget that shall take into account the number and nature of replaceable assets, the expected life of each asset, and the expected repair or replacement cost. The Board shall set the required capital reserve contribution, if any, in an amount sufficient to permit meeting the projected capital needs of the Association, as shown on the capital reserve budget, with respect both to amount and timing by equal annual assessments over the period of the budget. The annual capital reserve contribution required, if any, shall be fixed by the Board and included within the budget and assessment as provided in subparagraph (d) of this Paragraph. A copy of the capital reserve budget shall be distributed to each member in the same manner as the operating budget.
Statement of Account. Any Owner, Mortgagee, or a Person having executed a contract for the purchase of a Unit, or a lender considering a loan to be secured by a Unit, shall be entitled, upon written request, to a statement from the Association setting forth the amount of assessments due and unpaid, including any late charges, interest, fines, or other charges against a Unit. The Association shall respond in writing within five (5) business days of receipt of the request for a statement; provided, however, the Association may require the payment of a fee, not exceeding Ten and No/100 Dollars ($10.00), or such higher amount as may be authorized by the Act, as a prerequisite to the issuance of such a statement. Such written statement shall be binding on the Association as to the amount of assessments due on the Unit as of the date specified therein.
(h) Surplus Funds and Common Profits. Pursuant to Section 44-3-108 of the Act, common profits from whatever source shall be applied to the payment of Common Expenses. Any surplus funds remaining after the application of such common profits to the payment of Common Expenses shall, at the option of the Board of Directors, either be distributed to the Owners or credited to the next assessment chargeable to the Owners in proportion to the liability for Common Expenses attributable to each Unit, or added to the Association's capital reserve account as set forth in (f) above.
Working Capital Fund. The Declarant, on behalf of the Association, shall establish a working capital fund to meet unforeseen expenditures or to purchase any additional equipment or services. A non-refundable contribution to the working capital fund of the Association shall be paid by the purchaser of a Unit at the closing of each sale or resale of a Unit in the amount of two (2) months of the general assessment charged to such Unit. The Declarant shall not use the working capital
- 11 -
9247-003 воок 2413 PAGE 339
funds to detray any of its expenses, reserve contributions, or construction costs or to make up any budget deficits while it is in control of the Association.
11. INSURANCE
The Association shall obtain and maintain at all times, as a Common Expense, insurance as required by Section 44-3-107 of the Act, as amended, and as required herein. As determined in the sole discretion of the Board of Directors, the Association's insurance policy may exclude improvements and betterments made by the Unit Owner and may exclude the finished surfaces of perimeter and partition walls, floors, and ceilings within the Units (i.e., paint, wallpaper, paneling, other wall covering, tile, carpet and any floor covering; provided, however, floor covering does not mean unfinished hardwood or unfinished parquet flooring.
All insurance purchased by the Association pursuant to this Paragraph shall run to the benefit of the Association, the Board of Directors, officers, all agents and employees of the Association, the Unit Owners and their respective Mortgagees, and all other persons entitled to occupy any Unit as their interests may appear. The Association's insurance policy may contain a reasonable deductible, and the amount thereof shall not be subtracted from the face amount of the policy in determining whether the insurance equals at least the replacement cost of the insured
The Board of Directors shall make available for review by Owners a copy of the Association's insurance policy to allow Owners to assess their personal insurance needs and each Owner shall have the right to obtain additional coverage at his or her own expense.
All insurance coverage for the Association shall be written in the name of the Association as trustee for itself, each of the Owners, and the Mortgagees of Owners, if any. It shall be the duty of the Board of Directors at least every two (2) years to conduct an insurance review to determine if the policy in force is adequate to meet the needs of the Association and to satisfy the requirements of Section 44-3-107 of the Act, as amended. Such responsibility may be performed, and shall be deemed reasonably performed, by the Board requesting the Association's insurance agent to verify that insurance policies in existence meet the needs of the Association and satisfy the requirements of Section 44-3-107 of the Act, as amended.
The Board of Directors shall utilize reasonable efforts to secure a blanket hazard insurance policy providing "all risk" coverage in an amount equal to full replacement cost, before application of deductibles, of all improvements located on the Condominium. If "all risk" coverage is not reasonably available at reasonable cost, the Board shall obtain, at a minimum, fire and extended coverage, including coverage for vandalism and malicious mischief, in like amounts. The Board shall use reasonable efforts to obtain policies that will provide the following:
(i> ordinance or law coverage, demolition cost coverage and increased cost of construction coverage;
the insurer waives its rights of subrogation of any claims against directors, officers, the managing agent, the individual Owners, Occupants, and their respective household members;
(WI) any "other insurance" clause contained in the master policy shall expressly exclude individual Unit Owners' policies from its operation;
- 12 -
9247-003 256991-6
BOOK 2 4 1 3 PAGE 340
until the expiration of thirty (30) days after the insurer gives notice in writing to the Mortgagee of any Unit, the Mortgagee's insurance coverage will not be affected or jeopardized by any act or conduct of the Owner of such Unit, the other Unit Owners, the Board of Directors, or any of their agents, employees, or household members, nor be canceled for nonpayment of premiums;
(V) the master policy may not be canceled, substantially modified, or subjected to nonrenewal without at least thirty (30) days prior notice in writing to the Board of Directors and all Mortgagees of Units; and
(vi) an agreed value endorsement and an inflation guard endorsement. (b) All policies of insurance shall be written with a company licensed to do business in the State of Georgia. The company shall provide insurance certificates to each Owner and each Mortgagee upon request.
Exclusive authority to adjust losses under policies obtained by the Association shall be vested in the Association's Board of Directors; provided, however, no Mortgagee having an interest in such losses may be prohibited from participating in the settlement negotiations, if any, related thereto.
In no event shall the insurance coverage obtained and maintained by the Association hereunder be brought into contribution with insurance purchased by individual Unit Owners or their Mortgagees. Each Unit Owner shall notify the Board of Directors of all structural improvements made by the Unit Owner to his or her Unit. Any Unit Owner who obtains an individual insurance policy covering any portion of the Condominium, other than improvements and betterments made by such Owner at his or her expense and personal property belonging to such Owner, shall file a copy of such individual policy or policies with the Board of Directors within thirty (30) days after the purchase of such insurance. Such Owner shall also promptly notify, in writing, the Board of Directors in the event such policy is cancelled.
(e) In addition to the insurance required hereinabove, the Board shall obtain as a Common Expense:
(i> workers' compensation insurance if and to the extent necessary to meet the requirements of law;
public liability insurance in amounts no less than required by Section 44-3107 of the Act, as amended, and officers' and directors' liability insurance in such amounts as the Board may determine. The public liability insurance shall contain a cross liability endorsement;
fidelity bonds, if reasonably available, covering officers, directors, employees, and other persons who handle or are responsible for handling Association funds. Such bonds, if reasonably available, shall be in an amount consistent with the best business judgment of the Board of Directors, but in no event less than three (3) months assessments plus a reasonable amount to cover all or a reasonable portion of reserve funds in the custody of the Association at any time during the term of the bond; provided, however, fidelity coverage herein required may be reduced based on the implementation of financial controls which take one or more of the following forms: (a) the Association or management company, if any, maintains a separate bank account for the working account and the 256991-6 - 13 -
9247-003ł 800K 2413 PAGE 341
reserve account, each with appropriate access controls and the bank in which funds are deposited sends copies of the monthly bank statements directly to the Association; (b) the management company, if any, maintains separate records and bank accounts for each association that uses its services and the management company does not have the (c) two (2) members of the Board of Directors must sign any checks written on the reserve authority to draw checks on, or to transter tunds from, the Association's reserve account; or account; and
such other insurance as the Board of Directors may determine to be necessary or desirable including, for example coverage of the following types of property chat are part of the buring or sti contained within a Unit, regardless of ownership: (a) fixtures, improvements and alterations that are part of the building or structure; and (b) appliances, such as those used for refrigerating, ventilating, cooking, dishwashing, laundering, security or housekeeping. (f) Insurance carried by the Association as a Common Expense shall not be required to include: (i) any part of a Unit that is not depicted on the original Survey and Floor Plans; or (il) any part of a Unit that was not included as part of the collateral for the initial loan made for the initial for liability arising within the Unit. purchase of the Unit, nor shall the Association include public liability insurance for individual Owners
(g) Nothing contained herein gives any Owner or other party a priority over any rights of first Mortgagees as to distribution of insurance proceeds. Any insurance proceeds payable to the Owner of a Unit on which there is a Mortgagee endorsement shall be disbursed jointly to such Unit Owner and the Mortgagee. This is a covenant for the benefit of any such Mortgagee and may be enforced by any such Mortgagee.
(h) Every Unit Owner shall be obligated to obtain and maintain at all times insurance covering those portions of his or her Unit to the extent not insured by policies maintained by the Association. Upon request by the Board, the Unit Owner shall furnish a copy of such insurance policy or policies to the Association. In the event that any such Unit Owner fails to obtain insurance as required by this subparagraph, the Association may purchase such insurance on behalf of the Unit Owner and assess the cost thereof to the Unit Owner, to be collected in the manner provided for collection of assessments under Paragraph 10 hereof.
Insurance Deductibles. In the event of an insured loss, any required deductible shall be considered a maintenance expense to be paid by the person or persons who would be responsible for such loss in the absence of insurance. If the loss affects more than one (1) Unit or a Unit and the Common Elements, the cost of the deductible may be apportioned equitably by the Board among the parties suffering loss in proportion to each affected owner's portion of the total cost of repair. Notwithstanding this, if the insurance policy provides that the deductible will apply to each Unit separately or to each occurrence, each Unit Owner shall be responsible for paying the deductible pertaining to his or her Unit, if any. If any Owner or Owners fail to pay the deductible when required under this subparagraph, then the Association may pay the deductible and assess the cost to the Owner or Owners pursuant to Paragraph 8 of this Declaration; provided, however, where the deductible is for insurance required under the Act, no Owner shall be assigned more than One Thousand and No/100 Dollars ($1,000.00), or such higher amount as authorized by the Act, as the cost of the deductible for any one (1) occurrence.
Payment of Claims to Delinquent Owners. Notwithstanding anything to the contrary herein, in the event of an insured loss under the Association's master hazard insurance policy for which the Association receives from the insurer payment for a loss sustained by an Owner who is 256991-6 - 14 -
9247-003 800K 2413 PAGE 342
delinquent in the payment of assessments owed to the Association under Paragraph 10 hereof, then the Association may retain and apply such proceeds to the delinquency. Any surplus the affected Unit Owner. remaining after application of the proceeds to any delinquency shall be paid by the Association to 12. REPAIR AND RECONSTRUCTION
In the event of damage to or destruction of all or any part of the Condominium as a result of fire or other casualty, unless eighty percent (80%) of the Unit Owners, including the Owner or Owners of any damaged Unit or Units, vote not to proceed with the reconstruction and repair of the structure, the Board of Directors or its duly authorized agent shall arrange for and supervise the prompt repair and restoration of the structure. In the event of substantial damage or destruction, each holder of a first Mortgage shall be entitled to written notice of the damage, and nothing in distribution of proceeds to any such Unit. these documents shall be construed to afford a priority to any Unit Owner with respect to the
Cost Estimates. Immediately after a fire or other casualty causing damage to the Condominium, the Board of Directors shall obtain reliable and detailed estimates of the cost of repairing and restoring the structures (including any damaged Unit) to substantially the condition that existed before such casualty, allowing for any changes or improvements necessitated by changes in applicable building codes. Such costs may also include professional fees and premiums for such bonds as the Board of Directors determines to be necessary.
(0) Source and Allocation of Proceeds. If the proceeds of insurance are not sufficient to defray the costs of reconstruction and repair due to failure of the Association to maintain coverage as provided in Paragraph 11 of this Declaration, the additional cost shall be a Common Expense. If, for any reason, the proceeds of insurance are not sufficient to defray the costs of reconstruction and repair, as determined by the Board, the additional costs shall be assessed against the Owners of the Unit(s) damaged in proportion to the damage to the Units or against all Owners, in the case of insufficient funds to cover damage to the Common Elements. This assessment shall not be considered a special assessment as discussed in Paragraph 10(e). If there are surplus funds after repair and reconstruction is completed, such funds shall be common funds of the Association to be used as directed by the Board
Floor Plans and Specifications. Any such reconstruction or repair shall be substantially in accordance with the Floor Plans and specifications under which the Condominium was originally constructed, except where changes are necessary to comply with current applicable building codes or where improvements not in accordance with the original Floor Plans and specifications are approved by the Board of Directors. To the extent insurance proceeds are fire or other casualty. available, the Association may reconstruct or repair Owner improvements damaged as a result of
Encroachments. Encroachments upon or in favor of Units that may be created as a result of such reconstruction or repair shall not constitute a claim or basis for any proceeding or action by the Unit Owner upon whose property such encroachment exists, provided that such reconstruction was substantially in accordance with the architectural plans under which the Condominium was originally constructed. Such encroachments shall be allowed to continue in existence for so long as the reconstructed building shall stand.
Construction Fund. The net proceeds of the insurance collected on account of a casualty and the funds collected by the Association from assessments against Unit Owners on 258991-6 - 15 -
9247-003 BOOK 2413 PAGE 343
account of such casualty shall constitute a construction fund, which shall be disbursed in payment of the cost of reconstruction and repair in the manner set forth in this Paragraph to be disbursed by the Association in appropriate progress payments to such contractor(s), supplier (s), and personnel performing the work or supplying materials or services for the repair and reconstruction of the buildings as are designated by the Board of Directors.
13. ARCHITECTURAL CONTROLS.
During Declarant Control. During the time in which the Declarant has the right to appoint directors and officers of the Association under Article II, Section 2 of the Bylaws there shall be no Architectural Control Committee and all encroachments onto the Common Elements or Limited Common Elements, exterior change, alteration or construction (including painting and landscaping), and any erection, placement or posting of any object, sign, clothesline, speaker, playground equipment, light, fountain, flag, personalized or customized exterior door mat, or thing on the exterior or roots of the buildings, in any windows (except window treatments as provided herein), or on any Limited Common Elements or any Common Elements, must receive the prior written approval of the Declarant. However, a mezuzah or comparable religious symbol not larger than three inches (3) in width and nine inches (9) in height may be posted on the doorframe of the Unit and reasonable seasonal decorative lights may be displayed between Thanksgiving and January 15. Granting or withholding such approval shall be within the sole discretion of the Declarant. All references in the Condominium Instruments to the Architectural Control Committee officers and directors of the Association. or ACC shall refer to the Declarant during the period the Declarant has the right to appoint the
(b) After Declarant Control. After such time as the Declarant's rights to appoint officers and directors of the Association as provided in Article Ill, Section 2 of the Bylaws has expired, an Architectural Control Committee shall be appointed by the Board of Directors and except for the Declarant, so long as the Declarant shall own a Unit for sale, no Owner, Occupant, or any other person may make any encroachment onto the Common Elements or Limited Common Elements, or make any exterior change, alteration, or construction (including painting and landscaping), nor erect, place or post any object, sign, clothesline, speaker, playground equipment, light, fountain, flag, personalized or customized exterior door mat, or thing on the exterior or roofs of the buildings, in any windows (except window treatments as provided herein), on any Limited Common Elements, or on any other Common Elements, without first obtaining the written approval of the ACC. However, a mezuzah or comparable religious symbol not larger than three inches (3") in width and nine inches (9") in height may be posted on the doorframe of the Unit and reasonable seasonal decorative lights may be displayed between Thanksgiving and January 15. The standard for approval of such improvements shall include, but not be limited to, aesthetic consideration, materials to be used, harmony with the external design of the existing buildings, Units and structures, the location in relation to surrounding structures and topography, and the impact of such approval, if any, on the increase or decrease of sounds and vibrations between the Units and between the Units and the Common Elements and the impact of such approval, if any, on the increase or decrease of sounds and vibrations between the Units and between the Units and the approvals under this Paragraph. Common Elements. Notwithstanding the above, Declarant shall not be required to obtain any
Alteration of Units. Subject to the other provisions of this Declaration, alterations to the interiors of Units, relocation of the boundaries between adjoining Units, and subdivision of Units are subject to the following restrictions:
256991-6 - 16 -
9247-003 800K 2413 PAGE 344
Alterations to the Interiors of the Units. Except as provided herein, no Owner or Occupant may make any alteration within a Unit which involves connecting to Common Element pipes, lines, conduits and/or other apparatus for access to common utilities without prior written ACC approval (including, but not limited to, modifying connections of washers and dryers). Except as provided herein, no Owner or Occupant shall make any interior modifications to or place an excessive load on any structural or load bearing portions of a Unit without first obtaining the prior written approval of the ACC. Such approval shall not be granted by the ACC unless the Owner has presented to the ACC a report or drawing prepared by a licensed structural engineer showing that compensating measures will be taken to ensure the structural integrity of the Unit and the Condominium. All building code requirements must be complied with and necessary permits and approvals secured for any modifications. Notwithstanding the above, all Owners desiring to make any interior modifications or alterations to a Unit affecting the Common Elements or structure or load bearing portions of a Unit must make application to the ACC as described below in order for the ACC to make the determination of whether the ACC's approval is required.
Notwithstanding the above, if any Owner acquires an adjoining Unit, such Owner shall have the right (subject to the prior written approval of the Mortgagees of the Units involved) to remove all or any part of any intervening partition or to create doorways or other apertures therein, notwithstanding the fact that such partition may, in whole or part, be part of the Common Elements, so long as no portion of any structural or load bearing portions of the Unit(s) are materially weakened or removed and the ACC has approved the plans described above and no portion of any Common Elements is damaged, destroyed or endangered, other than that partition and any chutes, flues, ducts, conduits, wires or other apparatus contained therein which shall be relocated by such Owner if such facilities serve any other part of the Condominium. Notwithstanding the above, Declarant shall not be required to obtain any approvals under this Paragraph. The alterations permitted in this Paragraph shall not be O.C.G.A. § 44-3-91. deemed an alteration or relocation of boundaries between adjoining Units as defined in
Relocation of Boundaries. Boundaries between adjoining Units may be relocated only in accordance with the provisions of O.C.G.A. § 44-3-91 and this Declaration. As long as Declarant owns a Unit for sale, an Owner must obtain the prior written consent of the Declarant and the Board of Directors in order to relocate the boundaries of his or her Unit. only of the Board of Directors in order to relocate the boundaries of his or her Unit. The After Declarant no longer owns a Unit for sale, an Owner must obtain the prior written consent Declarant shall have the right to relocate boundaries between Units owned by the Declarant required amendment to the Declaration. without the approval of the Board of Directors, and the Board of Directors shall execute the
Subdivision of Units. An Owner may subdivide his Unit only in accordance with the provisions of O.C.G.A. § 44-3-92 and this Declaration. As long as Declarant owns a Unit for sale, an Owner must obtain the prior written consent of the Declarant and the Board of Directors in order to relocate the boundaries of his or her Unit. After Declarant no longer owns a Unit for sale, an Owner must obtain the prior written consent only of the Board of Directors in order to relocate the boundaries of his or her Unit. The Declarant shall have the right to subdivide Units owned by the Declarant without the approval of the Board of Directors, and the Board of Directors shall execute the required amendment to the Declaration.
Applications. Applications for approval of any such architectural modification shall be in writing and shall provide such information as the ACC may reasonably require. The ACC shall be 256991-6 - 17 -
9247-003 800K 2413 PAGE 345
the sole arbiter of such application and may withhold approval for any reason, including purely aesthetic considerations, and it shall be entitled to stop any construction that is not in conformance with approved plans. The Board or ACC may publish written architectural standards for exterior and Common Element alterations or additions, and any request in substantial compliance therewith shall be approved; provided, however, each such requested change shall be in harmony with the external design of the existing buildings and Units and the location in relation to surrounding structures and topography of the vicinity. All requests and approvals under this paragraph must meet all covenants and requirements of the Façade Easement and the Historic Preservation Ordinance.
Appeal. In the event that the ACC or its designated representative disapproves any application or part thereof, an Owner shall have the right to appeal the ACC's decision to the Board of Directors. The Board shall rule on the appeal within forty-five (45) days of receiving written notice requesting an appeal from the Owner. In ruling on the appeal, the Board shall consider all relevant materials presented to it by either the Owner or the ACC, the decision of the ACC, and the application of the Owner to the ACC. The Board of Directors shall have the final authority to approve, disapprove, or conditionally approve or disapprove the application of the Owner. If the Board does not receive written notice from the Owner by certified mail requesting an appeal within fourteen (14) days from the date of the ACC's notice to the Owner of its decision, the decision of the ACC shall become final and all rights of appeal shall terminate and thereafter be void.
Encroachments onto Common Elements. The ACC subject to this Paragraph may permit Unit Owners to make encroachments onto the Common Elements as it deems acceptable.
Condition of Approval. As a condition of approval for a requested architectural change, modification, addition, or alteration, an Owner, on behalf of himself or herself and his or her successors-in-interest, shall assume all responsibilities for maintenance, repair, replacement and insurance of such change, modification, addition, or alteration, unless otherwise agreed to in writing by the ACC. It is the responsibility of every Owner of a Condominium Unit to determine for himself or herself what architectural modifications have been made to his or her Unit by any predecessor-ininterest. In the discretion of the Board or ACC, an Owner may be made to verify such condition of or herself and all successors-in-interest. approval by written instrument in recordable form acknowledged by such Owner on behalf of himself
Limitation of Liability. Review and approval of any application pursuant to this Paragraph is made on the basis of aesthetic considerations only, and neither the Declarant, the Board of Directors or the ACC shall bear any responsibility for ensuring the structural integrity or soundness of approved construction or modifications, or for ensuring compliance with building codes and other governmental requirements. Neither the Declarant, the Association, the Board of Directors, the ACC, or member of any of the foregoing shall be held liable for any injury, damages or loss arising out of the manner or quality of approved construction on or modifications to any Unit.
No Waiver of Future Approvals. Each Owner acknowledges that the members of the Board of Directors and ACC will change from time to time and that interpretation, application and enforcement of the architectural standards may vary accordingly. Each Owner further acknowledges that the Board of Directors and ACC may adopt different architectural standards for different parts of the condominium, based on street visibility and location of the proposed modification in the building The approval of either the Board of Directors or the ACC of any proposals, plans and specifications or drawings for any work done or proposed, or in connection with any other matter requiring the approval and consent of the Board of Directors, or the ACC shall not be deemed to constitute a waiver of any right to withhold approval or consent as to any similar proposals, plans and specifications, drawings, or matters whatever subsequently or additionally submitted for approval or consent.
256991-6ł - 18 -
9247-003 BOOK 2413 PAGE 346
Paragraph shall be deemed to be nonconforming. Upon written request from the Board or the ACC, Enforcement. Any construction, alteration, or other work done in violation of this Owners shall, at their own cost and expense, remove such construction, alteration, or other work and shall restore the property to substantially the same condition as existed prior to the construction, alteration, or other work. Should an Owner fail to remove and restore as required hereunder, the Board or its designees shall have the right to enter the property, remove the violation and restore the property to substantially the same condition as existed prior to the construction, alteration or other Unit and collected as an assessment pursuant to this Declaration. work. All costs thereof, including reasonable attorney's fees, may be assessed against the benefited
In addition to the foregoing, the Board of Directors shall have the authority and standing, on behalf of the Association, to impose reasonable fines and to pursue all legal and equitable remedies available to enforce the provisions of this Paragraph and its decisions. Furthermore, the Board shall have the authority to record in the Athens-Clarke County land records notices of violation of the provisions of this Paragraph. landscaping) upon the Common Elements or Limited Common Elements in violation of this If any Owner or Occupant makes any exterior change, alteration, or construction (including Paragraph, he or she does so at his or her sole risk and expense. The Board may require that the change, alteration or construction be removed or that it remain on the Common Elements or Limited Common Elements without reimbursement to the Owner or Occupant for any expense he or she may have incurred in making the change, alteration or construction.
approved by the ACC hereunder must be commenced within six (6) months from the date of approval. Commencement of Construction. All changes, modifications and improvements If not commenced within six (6) months from the date of such approval, then such approval shall be deemed revoked by the ACC, unless the ACC gives a written extension for commencing the work. Al work approved by the ACC hereunder shall be completed in its entirety within ninety (90) days from the date of commencement, unless otherwise agreed in writing by the ACC. All approved changes, modifications, and improvements must be completed in their entirety. An Owner may not construct only a portion or part of an approved change, modification, or improvement.
- 14. USE RESTRICTIONS.
Each Owner of a Unit shall be responsible for ensuring that the Owner's family, guests, tenants and Occupants comply with all provisions of the Condominium Instruments and the rules and regulations of the Association. Furthermore, each Owner and Occupant shall always endeavor to observe and promote the cooperative purposes for which the Association was established. In addition to any rights the Association may have against the Owner's family, guests, tenants or Occupants, as a result of such person's violation of the Condominium Instruments, the Association may take action under this Declaration against the Owner as if the Owner committed the violation in conjunction with the Owner's family, guests, tenants or Occupants.
regulations in accordance with the terms hereof and as specified in the Bylaws. In addition to the following use restrictions, the Board of Directors may adopt rules and
Use of Units. The Units may be used for any residential business or retail activity that is legal and conforms to the zoning ordinances and requirements for Athens/Athens-Clarke County and is not prohibited as described below. No Unit shall be used for any of the following cinema/movie theater, bowling alley, skating rink, amusement gallery, pool hall, massage parlor, adult 256991-6 - 19 -
9247-003
воок 2 4 1. 3 PAGE 347
or manufacturing use, or amusement arcade. book store or adult video store, business that sells pornographic material, video game room, industrial
The terms "business" and "trade," as used herein, shall have their ordinary, generally accepted meanings, and shall include, without limitation, any occupation, work, or activity undertaken on an ongoing basis which involves the provision of goods or services to persons other than the provider's family and for which the provider receives a fee, compensation, or other form of intended to or does generate a profit; or (iii) a license is required therefor. consideration, regardless of whether: (i) such activity is engaged in full or part-time; (ii) such activity is
Number of Occupants. The maximum number of Occupants in a Unit shall be limited to four (4) people per Unit. Upon written application, the Board shall grant variances to this restriction to comply with provisions of the Fair Housing Amendments Act of 1988 or any amendments thereto.
If an Owner of a Unit is a corporation, partnership, trust or other legal entity not being a natural person, the entity shall designate in writing to the Board the name(s) of the person(s) who will occupy the Unit. The designated person(s) to occupy the Unit may not be changed more frequently than once every six (6) months. garage, barn or other outbuilding shall be erected by any Owner or Occupant, other than the Outbuildings. No structure of a temporary character, trailer, tent, shack, carport, the prior written approval of the Board. Declarant, on any portion of the Condominium, at any time, either temporarily or permanently, without
Use of Common Elements Including Amenities. There shall be no obstruction of the Common Elements, nor shall anything be kept on, parked on, stored on or removed from any part of the Common Elements without the prior written consent of the Board, except as specifically provided herein. With prior written Board approval, and subject to any restrictions imposed by the Board, an Owner may reserve portions of the Common Elements for use for a period of time as set by the Board. Any such Owner who reserves a portion of the Common Elements as provided herein shall assume, on behalf of himself or herself and his or her guests, Occupants and family, all risks associated with the use of the Common Elements and all liability for any damage or injury to any person or thing as a result of such use. The Association shall not be liable for any damage or injury resulting from such use unless such damage or injury is caused solely by the wilful acts or gross negligence of the Association, its agents or employees. There shall be no use of the roofs of the Condominium buildings by the Owners, their family members, guests, tenants, invitees, agents or contractors except for specific roof decks designed for use by Occupants. The Association and its agents and contractors shall have access to the roofs for performing its maintenance and repair responsibility. There shall be no gardening or landscaping on the Common Elements by Owners or Occupants without the prior written consent of the Board. This subparagraph shall not apply to the
Use of Limited Common Elements, Decks, Balconies, and Courtyards. Except as otherwise provided herein, the use of the Limited Common Elements assigned to the Units is restricted exclusively to the Owners of the Unit to which such Limited Common Elements are assigned, and said Owner's family members, guests, tenants and invitees. The Limited Common Elements are reserved for exclusive use, but shall not be construed or interpreted to be separate and apart from the Common Elements in general, and the restrictions applicable to the Common Elements shall also apply to the Limited Common Elements.
256991-6 - 20 - BOOK 2 4 1 3 PAGE 348 9247-003
Balconies, Decks and Courtyards. No objects other than potted plants and patio furniture shall be placed on a balcony, deck, or courtyard. This prohibition applies to objects such as, but not limited to, umbrellas, bicycles, laundry garments, towels and objects other than potted plants and patio furniture, except as may be authorized by the Board. Objects shall not be permitted to hang over or be attached to any exterior balcony, deck or courtyard wall or to otherwise protrude outside of the vertical plane formed by the exterior surface of the balcony, deck or courtyard wall. Penetration of the surfaces of a balcony, deck or courtyard wall or floor is prohibited.
Prohibition of Damage, Nuisance and Noise. Without the prior written consent of the Board of Directors, nothing shall be done or kept on the Condominium, or any part thereof, which would increase the rate of insurance on the Condominium or any Unit or part thereof, which would be in violation of any statute, rule, ordinance, regulation, permit or other validly imposed requirements of any governmental body, or which would increase the Common Expenses.
The dwelling Units in the Condominium are built in close proximity to one another, resulting in the sharing of common walls, floors and ceilings. As a result, noise and vibration may be detectable between Units or between Units and the Common Elements. Therefore, an Owner or Occupant shall not conduct activities within a Unit or use a Unit in a manner that interferes with or causes disruption to the use and quiet enjoyment of another Unit by its respective Owner and Occupant. portion of the Condominium. No Owner or Occupant of a Unit may use or allow the use of the Unit or Furthermore, noxious, destructive or offensive activity shall not be carried on within any any portion of the Condominium at any time, in any way or for any purpose which may endanger the health, unreasonably annoy or disturb or cause embarrassment, or discomfort to other Owners or Occupants, or in such a way as to constitute, in the sole opinion of the Board of Directors, a nuisance In addition, no Owner or Occupant of a Unit may use or allow the use of a Unit or the Common Elements in any manner which creates disturbing noises, including, without limitation, use of stereo speakers or equipment that will in the sole discretion of the Board of Directors interfere with the rights, comfort or convenience of the other Owners or Occupants. Nothing herein, however, shall be with his or her property or personal rights. construed to affect the rights of an aggrieved Owner to proceed individually for relief from interference
No Owner, Occupant or agent of such Owner or Occupant shall do any work which, in the reasonable opinion of the Association's Board of Directors or its designee, would jeopardize the soundness or safety of the Condominium or any structure created thereon, would reduce the value thereof, or would impair any easement or other interest in real property thereto, without in every such case the unanimous, prior written consent of all members of the Association and their Mortgagees.
No damage to or waste of the Common Elements, or any part thereof, shall be permitted by any Owner or member of his or her family or any invitee of any Owner. Each Owner shall indemnify and hold the Association and the other Owners harmless against all loss to the Association or other Owners resulting from any such damage or waste caused by such Owner, members of his or her family, guests, invitees, or Occupants of his or her Unit.
Firearms and Fireworks. The display or discharge of firearms or fireworks on the Common Elements or Limited Common Elements is prohibited; provided, however, that the display of lawtul firearms on the Common Elements or Limited Common Elements is permitted by law enforcement officers and also is permitted for the limited purpose of transporting the firearms across the Common Elements or Limited Common Elements to or from the Owner's Unit. The term
256991-6 - 21 -
9247-003 BOOK 2413 PACE 349
term "fireworks" shall include those items as listed in O.C.G.A. § 25-10-1, as amended. "firearms" includes "B-B" guns, pellet guns, and other firearms of all types, regardless of size. The Condominium except as expressly permitted in this subparagraph. An Owner or Occupant may keep Pets. No Owner or Occupant may keep any animals on any portion of the recognized household pets, as determined in the Board's sole discretion, weighing less than two (2) no more than a total of two (2) dogs and/or cats per Unit and a reasonable number of other generally pounds each (including by way of illustration, but not limitation, fish, gerbils and small birds). no structure for the care, housing, or confinement of any pet shall be constructed or maintained on No Owner or Occupant may keep, breed or maintain any pet for any commercial purpose, and approval. No pets are allowed on any portion of the Common Elements except for the designated any part of the Common Elements, including Limited Common Elements, without prior written ACC dog walk area, if any; provided, however, an Owner or Occupant may walk a pet across the Common Elements to reach such dog walk area, if any, or to enter or exit the Condominium property. responsible person at all times while on the Common Elements, but excluding the Limited Common Notwithstanding the foregoing, pets must be kept on a leash and be under the physical control of a when attended by a person. Feces left upon the Common Elements by pets must be immediately Elements; provided, however, pets need not be leashed within a fenced, balcony, deck, or courtyard removed by the owner of the pet or the person responsible for the pet.
determined in the Board's sole discretion to be dangerous may be brought onto or kept on the No potbellied pigs, snakes, pit bulldogs, rotweillers, doberman pinschers, or other animals Condominium at any time. The Board may require that any pet which, in the Board's opinion, endangers the health of any Owner or Occupant or creates a nuisance or unreasonable disturbance, be permanently removed from the Condominium upon seven (7) days written notice. If the Owner or presents an immediate danger to the health, safety or property of any community member may be Occupant fails to do so, the Board may remove the pet. Any pet which, in the Board's sole discretion, removed by the Board without prior notice to the pet's owner.
deemed to have agreed to indemnify and hold the Association, its directors, officers, and agents free Any Owner or Occupant who keeps or maintains any pet upon the Condominium shall be keeping or maintaining such pet within the Condominium. and harmless from any loss, claim or liability of any kind or character whatever arising by reason of serving particular Units. Such assigned parking spaces are designated Limited Common Elements Parking. Parking spaces may be assigned as Limited Common Elements, exclusively and may only be used by the Owner or Occupants to whom the parking spaces assigned and their guests and families. nore parking spaces (which parking spaces shall thereafter be Limited Common Elements -or so long as Declarant owns a Unit primarily for the purpose of sale, Declarant may sel the use of unassigned parking spaces. appurtenant to the Unit to which they have been sold) to a Unit Owner and may adopt rules regulating spaces or other areas authorized in writing by the Board. Vehicles permitted under this subparagraph may be parked only in designated, lined parking purposes hereof, a vehicle shall be considered "disabled if it does not have a current license tag or is Disabled and stored vehicles are prohibited from being parked on the Condominium. For 256991-6 - 22 - BOOK 2413 PAGE 350 9247-003
obviously inoperable. A vehicle shall be considered "stored" if it remains on the Condominium without being driven for fourteen (14) consecutive days or longer without prior written Board permission.
Boats, trailers, jet-skis and trailers for same, panel trucks, buses, trucks with a load capacity of one (1) ton or more, vans (excluding vans used by handicapped persons, mini-vans or utility vehicles used as passenger vehicles and receiving a "car" or "passenger vehicle" classification by the Georgia Department of Motor Vehicles), recreational vehicles (RV's and motor homes), and vehicles used primarily for commercial purposes, are also prohibited from being parked on the Condominium, except in areas, if any, that may be designated by the Board as parking areas for particular types of vehicles. Notwithstanding the above, trucks, vans, commercial vehicles and vehicles with commercial writings on their exteriors shall be allowed temporarily on the Common Elements during normal business hours for the purpose of serving any Unit or the Common Elements; provided, however, no such vehicle shall remain on the Common Elements overnight or for any purpose unless prior written
If any vehicle is parked on any portion of the Condominium in violation of this Paragraph or in violation of the Association's rules and regulations, the Board or agent of the Association may place a notice on the vehicle specifying the nature of the violation and stating that after twenty-four (24) hours the vehicle may be towed or booted. The notice shall include the name and telephone number of the person or entity that will do the towing or booting and the name and telephone number of a person to contact regarding the alleged violation. If twenty-four (24) hours after such notice is placed on the vehicle the violation continues or thereafter occurs again within six (6) months of such notice, the Board or agent of the Association may have the vehicle towed or booted in accordance with the notice, without further notice to the Owner or user of the vehicle.
If a vehicle is parked in a fire lane, is blocking another vehicle or access to another Owner's Unit or parking space, is obstructing the flow of traffic, is parked on any grassy area, is parked in a parking space which has been assigned as exclusively serving another Unit, or otherwise creates a hazardous condition, no notice shall be required and the Board or agent of the Association may have the vehicle towed immediately. If a vehicle is towed in accordance with this subparagraph, neither the Association nor any officer or agent of the Association shall be liable to any person for any claim of damage as a result of the towing activity. Notwithstanding anything to the contrary herein, the Board may elect to impose fines or use other available sanctions, rather than exercise its authority to tow or
Heating of Units in Colder Months. In order to prevent breakage of water pipes during colder months of the year resulting in damage to any portion of the Condominium, increased Common Expenses, and increased insurance premiums or cancellation of insurance policies due to numerous damage claims, the thermostats within the Units shall be maintained with the heat in an "on" position and at a minimum temperature setting of fifty-five (55°) degrees Fahrenheit (except during power failures or periods when heating equipment is broken) whenever the temperature is forecasted to or does reach thirty-two (32°) degrees Fahrenheit or below. Owners and Occupants of Units shall take all steps possible on a timely basis to keep heating equipment, including, but not limited to, the thermostat, in good working order and repair. The Board of Directors may fine any Owner or Occupant and/or may cause the water service to the violator's Unit to be discontinued for violation of this subparagraph, in addition to any other remedies of the Association.
Signs. Except as may be provided for herein or as may be required by legal proceedings, and except for signs which may be erected by Declarant related to the development and sale of Units, no signs, advertising posters, political placards or billboards of any kind shall be erected, placed, or permitted to remain on the Condominium without the prior written consent of the ACC.
- 23 -
256991-6 9247-003 BOOK 241 3 PAGE 351
Notwithstanding the above, the Board shall have the right to erect reasonable and appropriate signs on behalf of the Association.
Rubbish, Trash, and Garbage. All rubbish, trash, and garbage shall be regularly removed from the Unit and shall not be allowed to accumulate therein. No garbage or trash shall be placed on the Common Elements or Limited Common Elements outside the Unit, temporarily or otherwise, except in trash dumpsters. Rubbish, trash, and garbage shall be disposed of in sealed bags and either placed in the trash dumpsters or proper receptacles designated by the Board for collection or removed from the Condominium.
Unsightly or Unkempt Conditions. The pursuit of hobbies or other activities, including, but not limited to the assembly and disassembly of motor vehicles and other mechanical devices, which might tend to cause disorderly, unsightly, or unkempt conditions, shall not be pursued or undertaken on any part of the Condominium. Clothing, bedding, rugs, mops, appliances, indoor furniture, and other household items shall not be placed or stored outside the Unit.
Garage Sales. Garage sales, yard sales, flea markets, or similar activities are prohibited unless approved in writing by the Board of Directors.
Window Treatments. The color of all window treatments visible from outside the Unit must be white, off-white, or a natural wood color. Bed sheets shall not be used as window treatments
Antennas and Satellite Dishes. Except as provided below, no satellite dish, antenna or other device for the transmission or reception of television signals, radio signals or any form of electromagnetic wave or radiation shall be erected, used or maintained on any portion of the Condominium, including the Unit or Limited Common Elements; provided, however, that the Association shall have the right to erect, construct and maintain such devices. The following shall apply to all Unit Owners:
No transmission antenna, of any kind, may be erected anywnere on the Condominium, including the Units, without written approval of the Board of Directors or the Architectural Control Committee.
No direct broadcast satellite (DBS) antenna or multi-channel multi-point distribution service (MMDS) antenna larger than one meter in diameter shall be placed, allowed or maintained upon the Condominium, including the Units and the Limited Common
(m) DBS and MMDS satellite dishes or antennas one meter or less in diameter and television broadcast service antennas may only be installed in accordance with Federal Communication Commission (FCC) rules and the rules and regulations of the Association, both as may be amended from time to time.
In the event of a transfer of the Unit which includes a satellite dish or antenna, the Grantee shall assume all responsibility for the satellite dish or antenna and shall comply with this Declaration, the Bylaws and the rules and regulations regarding satellite dishes and antennas, including, but not limited to, those requirements relating to maintenance and removal of satellite dish or antenna.
- 24 -
256991-6
9247-003 BOOK 2413 PAGE 352
Grilling. The use of outdoor grills on any portion of the Condominium, including, without limitation, a deck, balcony, or courtyard shall be governed by applicable state laws and local ordinances having jurisdiction over the Condominium.
Abandoned Personal Property. Personal property, other than vehicles as provided for in subparagraph (i) shall not be kept, or allowed to remain for more than twenty-four (24) hours upon any portion of the Common Elements, other than on a Limited Common Element, without prior written Board permission. If the Board determines that a violation exists, then, not less than two (2) days after written notice is placed on the personal property and/or on the front door of the property owner's Unit, if known, the Board may remove and either discard or store the personal property in a location which the Board may determine and shall have no obligation to return, replace or reimburse the owner of the property. The notice shall include the name and telephone number of the person or entity which will remove the property and the name and telephone number of a person to contact
The Board, in its discretion, may determine that an emergency situation exists and may exercise its removal rights hereunder without prior notice to the property owner; provided, however, in such case, the Board shall give the property owner, if known, notice of the removal of the property and the location of the property within three (3) days after the property is removed.
Neither the Association nor any officer or agent thereof shall be liable to any person for any claim of damage resulting from the removal activity in accordance herewith. The Board may elect to impose fines or use other available remedies, rather than exercise its authority to remove property hereunder.
Replacing Carpet with Tile or Hardwood Floors. Other than the Declarant, no Owner, Occupant, or any other person may replace carpeting with a tile, marble, vinyl, hardwood floor, or other hard surfaced flooring material, on the interior floor of a Unit which is located above another Unit without first obtaining written approval of the Declarant or the Architectural Control Committee, as applicable, as set forth in Paragraph 13. Among other factors, the Declarant or the Architectural Control Committee, as applicable, may consider whether the change will cause noise to any Unit below which will exceed the average noise level in Units below Units with carpeted floors and that the weight of such proposed flooring is appropriate and will not cause problems to the structure or subflooring.
The Owner applying for such approval shall provide the Declarant or the Architectural Control Committee, as applicable, with information regarding these factors, as well as other information requested by the Declarant or the Architectural Control Committee regarding the proposed flooring and its effect; provided, however, the noise level requirements shall be considered to be met if the Owner provides a sound transmission test that the proposed flooring will create a noise level less than a standard level set by reasonable regulation of the Declarant or the Architectural Control Committee, as applicable. Notwithstanding anything to the contrary stated herein for all Units located above another Unit, at least seventy-five percent (75%) of each room within a Unit (excluding the kitchen and bathrooms) shall have area rugs or carpet unless the flooring is sound proofed so as not to exceed the noise level in Units with carpeted floors.
Sale Period. Notwithstanding any provisions contained in this Declaration to the contrary, during the period of the sale of the Condominium Units it shall be expressly permissible for Declarant, its contractors, agents, employees, assigns and representatives, to maintain and carry on, upon such portion of the Condominium as Declarant may deem necessary, such facilities and activities as in the sole opinion of Declarant may be reasonably required, convenient or incidental to
- 25 -
256991-6 _ BOOK 2413 PAGE 353 9247-003
the completion and sale of the Condominium Units, including, but without limitation, business offices, signs, model Units and sales offices. The right to maintain and carry on such facilities and activities shall include specifically the right to use the parking facilities on the Condominium for such purposes and to use the Units owned by Declarant as model Units and as offices for the sale of the Condominium Units and related activities.
15. LEASING.
In order to preserve the character of the Condominium as predominantly owner-occupied, and to comply with the eligibility requirements for financing in the secondary mortgage market, the leasing of Units shall be governed by the restrictions imposed by this Paragraph. Except as provided herein, the leasing of Units shall be prohibited. "Leasing," for the purposes of this Declaration, is defined as regular, exclusive occupancy of a Unit by any Person other than the Owner. For purposes hereof, occupancy by a roommate of an Owner who occupies the Unit as such Owner's primary residence shall not constitute Leasing hereunder.
General. Owners desiring to lease their Units may do so only if they have applied for and received from the Board of Directors either a "Leasing Permit" or a "Hardship Leasing Permit." Such a permit, upon its issuance, will allow an Owner to lease his or her Unit provided that such Leasing is in strict accordance with the terms of the permit and this Paragraph. The Board of Directors shall have the authority to establish conditions as to the duration and use of such permits consistent with this Paragraph. All leasing Permits and Hardship Leasing Permits shall be valid only as to a specific Unit Owner and Unit and shall not be transferable between either Units or Unit Owners, but shall be transferable to successors in title to the same Unit.
Leasing Permits. An Owner's request for a Leasing Permit shall be approved if current, outstanding Leasing Permits have not been issued for more than twenty-five percent (25%) of the total number of Units (excluding Units owned by the Declarant) in the Condominium. A Leasing Permit shall be automatically revoked upon the happening of any of the following events: (1) the sale or transfer of the Unit to a third party (excluding sales or transfers to (a) an Owner's spouse, (b) a person cohabitating with the Owner, and (c) a corporation, partnership, company, or legal entity in which the Owner is a principal); (2) the failure of a Unit Owner to lease his or her Unit within one hundred eighty (180) days of the Leasing Permit having been issued; (3) the failure of a Unit Owner to have his or her Unit leased for any consecutive one hundred eighty (180) day period thereafter; or (4) the occurrence of the date referenced in a written notification by the Owner to the Association that the Owner will, as of said date, no longer need the Leasing Permit. If current Leasing Permits have been issued for more than twenty-five percent (25%) of the total number of Units (excluding Units owned by the Declarant), no additional Leasing Permits shall be issued (except for Hardship Leasing Permits) until the number of outstanding current Leasing Permits falls below twenty-five percent (25%) of the total number of Units (excluding Units owned by the Declarant) in the Condominium. Owners who have been denied a Leasing Permit shall automatically be placed on a waiting list for a Leasing Permit and shall be issued the same if they so desire when the number of current outstanding Leasing Permits issued falls to twenty-five percent (25%) or less of the total number of Units (excluding Units owned by the Dealarant) in the Condominium. The issuance of a Hardship Leasing Permit to an Owner shall not cause the Owner to be removed
(c) Hardship Leasing Permits. If the failure to lease will result in a hardship, the Owner
- 26 -
256991-6 BOOK 2413 PAGE 354 9247-003
duration of the hardship, (2) the harm, if any, which will result to the Condominium if the permit is approved, (3) the number of Hardship Leasing Permits which have been issued to other Owners, (4) the Owner's ability to cure the hardship, and (5) whether previous Hardship Leasing Permits have been issued to the Owner. A "hardship" as described herein shall include, but not be limited to the following situations: (1) a Unit Owner must relocate his or her residence outside the greater Atlanta metropolitan area and cannot, within six (6) months from the date that the Unit was placed on the market, sell the Unit except at a price below the current appraised market value, after having made reasonable efforts to do so; (2) where the Owner dies and the Unit is being administered by his or her estate; and (3) the Owner takes a leave of absence or temporarily relocates and intends to return to reside in the Unit. Hardship Leasing Permits shall be valid for a term not to exceed one (1) year. Owners may apply for additional Hardship Leasing Permits. Hardship Leasing Permits shall be automatically revoked if during the term of the permit, the Owner is approved for and receives a Leasing Permit.
(d) Leasing Provisions. Leasing which is authorized, pursuant to permit, hereunder shall be governed by the following provisions:
Notice. At least seven (7) days prior to entering into the lease of a Unit, the Owner shall provide the Board with a copy of the proposed lease agreement. The Board shall approve or disapprove the form of said lease. In the event a lease is disapproved, the Board shall notify the Owner of the requisite action to be taken in order to bring the lease in compliance with the Declaration and any rules and regulations adopted pursuant thereto.
General. Units may be leased only in their entirety; no fraction or portion may be leased without prior written Board approval. All leases shall be in writing and in a form approved by the Board prior to the effective date of the lease. The Board may maintain and, upon request, provide a form which is deemed acceptable. There shall be no subleasing of Units or assignment of leases without prior written Board approval. All leases must be for an Initial term or not less than one (1) year, except with written Board approval, which shall not be unreasonably withheld in cases of undue hardship. Within ten (10) days after executing a lease agreement for the lease of a Unit, the Owner shall provide the Board with a copy of the lease and the name of the lessee and all other people occupying the Unit. The Owner must provide the lessee copies of the Declaration, Bylaws, and the rules and regulations. Nothing herein shall be construed as giving the Association the right to approve or disapprove a proposed lessee; the Board's approval or disapproval shall be limited to the form of the
Liability for Assessments, Use of Common Elements, and Compliance with Declaration, Bylaws, and Rules and Regulations. Each Owner covenants and agrees that any lease of a Unit shall contain the following language and agrees that if such language is not expressly contained therein, then such language shall be incorporated into the lease by existence of this covenant, and the lessee, by occupancy of the Unit, agrees to the applicability of this covenant and incorporation of the following language into the lease:
(A) Compliance with Declaration, Bylaws, and Rules and Regulations. The lessee shall comply with all provisions of the Declaration, Bylaws, and rules and regulations adopted pursuant thereto and shall control the conduct of all other Occupants and guests of the leased Unit in order to ensure such compliance. The Owner shall cause all Occupants of his or her Unit to comply with the Declaration, Bylaws, and the rules and regulations adopted pursuant thereto, and shall be responsible for all violations by such Occupants, notwithstanding the fact that such
- 27 -
256991-6 BOOK 2413 PAGE 355 9247-003
Occupants of the Unit are fully liable and may be sanctioned for any such violation. If the lessee, or a person living with the lessee, violates the Declaration, Bylaws, or a rule or regulation for which a fine is imposed, notice of the violation shall be given to the Owner and the lessee, and such fine may be assessed against the lessee in accordance with Article V of the Bylaws. If the fine is not paid by the lessee within the time period set by the Board, the Owner shall pay the fine upon notice from the Association of the lessee's failure to pay the fine. Unpaid fines shall constitute a lien against the Unit.
Any violation of the Declaration, Bylaws, or rules and regulations adopted pursuant thereto by the lessee, any Occupant, or any guest of lessee, is deemed to be a default under the terms of the lease and authorizes the Owner to terminate the lease without liability and to evict the lessee in accordance with Georgia law. The Owner hereby delegates and assigns to the Association, acting through the Board, the power and authority of enforcement against the lessee for breaches resulting from the violation of the Declaration, Bylaws, and the rules and regulations adopted pursuant thereto, including the power and authority to evict the lessee as attorney-in-fact on behalf and for the benefit of the Owner, in accordance with the terms hereof. If the Association proceeds to evict the lessee, any costs, including reasonable attorney's fees actually incurred and court costs associated with the eviction shall be an
(B) Use of Common Elements. The Owner transfers and assigns to the lessee, for the term of the lease, any and all rights and privileges that the Owner has to use the Common Elements, including but not limited to, the use of any and all
(C) Liability for Assessments. When a Unit Owner who is leasing his or her Unit fails to pay any annual or special assessment or any other charge for a period of
hereby consents to the assignment of any rent received from the lessee during the period of delinquency, and, upon request by the Board, lessee shall pay to the Association all unpaid annual and special assessments and other charges payable during and prior to the term of the lease and any other period of occupancy by lessee. However, lessee need not make such payments to the Association in excess of, or prior to the due dates for, monthly rental payments unpaid at the time of the Board's request. All such payments made by lessee shall reduce, by the same amount, lessee's obligation to make monthly rental payments to lessor. If lessee fails to comply with the Board's request to pay assessments or other charges, lessee shall pay to the Association all amounts authorized under the Declaration as if lessee were an Owner. The above provision shall not be construed to release the Owner from any obligation, including the obligation for assessments, for which he or she would
Applicability of this Paragraph. Notwithstanding the above, this Paragraph shall not apply to any leasing transaction entered into by the Declarant (regardless of whether said lease is entered into prior to or after the expiration of the Declarant's right to appoint and remove officers and directors of the Association pursuant to Article III, Section 2 of the Bylaws), the principals of the Declarant, the Association, or the holder of any first Mortgage on a Unit who becomes the Owner of a Unit through foreclosure or any other means pursuant to the satisfaction of the indebtedness secured by such Mortgage. Such parties shall be permitted to lease a Unit without first obtaining a permit in
- 28 -
256991-6 200к 2413 PAGE 356 9247-003
accordance with this Paragraph, and such Units shall not considered as being leased in determining the maximum number of Units that may be leased in accordance with this Paragraph.
16. SALE OF UNITS.
A Unit Owner intending to make a transfer or sale of a Unit or any interest in a Unit shall give written notice to the Board of Directors of such intention within seven (7) days after execution of the transfer or sales documents. The Unit Owner shall furnish to the Board as part of the notice (i) the name and address of the intended grantee; and (ii) such other information as the Board may reasonably require. This Paragraph shall not be construed to create a right of first refusal in the Association or in any third party.
In addition, a non-refundable contribution to the working capital fund of the Association shall be paid to the Association by the purchaser of a Unit at the closing of each sale or resale of a Unit in the amount of two (2) months of the general assessment charges to such Unit.
Within seven (7) days after receiving title to a Unit, the purchaser of the Unit shall give written notice to the Board of Directors of his or her ownership of the Unit. Upon failure of a Owner to give the required notice within the seven (7) day time period provided herein, the Board may levy fines against the Unit and the Owner thereof, and assess the Owner for all costs incurred by the Association in determining his or her identity.
17. MAINTENANCE RESPONSIBILITY
(a) By the Owner. Each Owner shall have the obligation to maintain and keep in good all improvements made by the Owner to the Limited Common Elements assigned to the Unit except any portion of a Unit which is expressly made the maintenance obligation of the Association as set forth in subparagraph (b) below. This maintenance responsibility shall include, but not be limited to the following: all glass surfaces (excluding exterior cleaning), skylights, windows, window frames (except for periodic painting, staining and/or cleaning of the exterior window frames), casings and locks (including caulking of windows); all doors, doorways, door frames, and hardware that are part of the entry system of the Unit (except for periodic painting, staining and/or cleaning of the exterior surface of entry doors and door frames facing the hallway of the Condominium); all portions of the heating and air conditioning system, including the air conditioning compressor and the fan coil serving the Unit; and all pipes, lines, ducts, conduits, or other apparatus which serve only the Unit, whether located within or without a Unit's boundaries (including all electricity, water, sewer, or air conditioning pipes, lines, ducts, conduits, or other apparatus serving only the Unit).
In addition, each Unit Owner shall have the responsibility:
To keep in a neat, clean and sanitary condition any Limited Common Elements serving his or her Unit.
To perform his or her responsibility in such manner so as not to unreasonably disturb other persons in other Units.
To promptly report to the Association or its agent any defect or need for repairs, for which the Association is responsible.
- 29 -
256991-6 BOOK 2413 PAGE 357 9247-003
To pay for the cost of repairing, replacing or cleaning up any item which is the responsibility of the Unit Owner but which responsibility such Owner fails or refuses to discharge (which the Association shall have the right, but not the obligation, to do), or to pay for the cost of repairing, replacing, or cleaning up any item which, although the responsibility of the Association, is necessitated by reason of the willful or negligent act of the Unit Owner, his or her family, tenants or guests, with the cost thereof to be added to and become part of the Unit Owner's next chargeable assessment.
By the Association. The Association shall maintain and keep in good repair as a Common Expense the "Area of Common Responsibility," which includes the following:
all Common Elements, including any Limited Common Elements, but excluding all balconies, decks and courtyards assigned as Limited Common Elements, and excluding all improvements made to Limited Common Elements; provided, however, the cost of maintenance and repair of Limited Common Elements may be assessed against the Unit Owner to whom the Limited Common Element is assigned except for the Limited Common Element carport, which shall be assessed against the Owners to whom it is assigned, as authorized under Paragraph 8(b)(i);
periodic painting, staining and/or cleaning of exterior surfaces of the Condominium buildings, exterior window frames, and entry doors and door frames facing the hallway of the Condominium, on a schedule to be determined by the Board of Directors; and periodic cleaning of exterior window surfaces on a schedule to be determined by the Board of Directors.
Subject to the maintenance responsibilities herein provided, any maintenance or repair performed on or to the Common Elements by an Owner or Occupant which is the responsibility of the Association hereunder (including, but not limited to landscaping of Common Elements) shall be performed at the sole expense of such Owner or Occupant, and the Owner or Occupant shall not be entitled to reimbursement from the Association even if the Association accepts the maintenance or repair.
The Association shall repair incidental damage to any Unit resulting from performance of work which is the responsibility of the Association. As finish levels can have varying degrees, such repairs will be complete only to the extent of being "paint-ready". Such repair and subsequent cleaning shall be performed based on a reasonableness standard. In performing its responsibilities hereunder, the Association shall have the authority to delegate to such persons, firms or corporations of its choice, such duties as are approved by the Board of Directors.
The Association shall not be liable for injury or damage to person or property caused by the elements or by the Owner of any Unit, or any other person, or resulting from any utility, rain, snow or ice which may leak or flow from any portion of the Common Elements or from any pipe, drain, conduit, appllance or equipment which the Association is responsible to maintain hereunder, except for injuries or damages arising after the Owner of a Unit has put the Association on notice of a specific leak or flow from any portion of the Common Elements and the Association has failed to exercise due care to correct the leak or flow within a reasonable time thereafter. The Association shall not be liable to the Owner of any Unit or such Owner's Occupant, guest, or family, for loss or damage, by theft or otherwise, of any property which may be stored in or upon any of the Common Elements. The Association shall not be liable to any Owner, or any Owner's Occupant, guest or family for any damage or injury caused in whole or in part by the Association's failure to discharge its responsibilities
- 30 -
256991-6łą 9247-003 BOOK 2 4 1 3 PAGE 358
under this Paragraph where such damage or injury is not a foreseeable, natural result of the Association's failure to discharge its responsibilities. No diminution or abatement of assessments shall be claimed or allowed by reason of any alleged failure of the Association to take some action or perform some function required to be taken or performed by the Association under this Declaration, or for inconvenience or discomfort arising from the making of repairs or improvements which are the responsibility of the Association, or from any action taken by the Association to comply with any law, ordinance, or with any order or directive of any municipal or other governmental authority.
Failure to Maintain. If the Board of Directors determines that any Owner has failed or refused to discharge properly his or her obligation with regard to the maintenance, repair, or replacement of items of which he or she is responsible hereunder, then, the Association shall give the Owner written notice of the Owner's failure or refusal and of the Association's right to provide necessary maintenance, repair, or replacement at the Owner's cost and expense. The notice shall set forth with reasonable particularity the maintenance, repair, or replacement deemed necessary by
Unless the Board of Directors determines that an emergency exists, the Owner shall have ten (10) days within which to complete maintenance or repair, or if the maintenance or repair is not capable of completion within such time period, to commence replacement or repair within ten (10) days. If the Board determines that: (i) an emergency exists or (il) that an Owner has not complied with the demand given by the Association as herein provided; then the Association may provide any such maintenance, repair, or replacement at the Owner's sole cost and expense, and such costs shall be added to and become a part of the assessment to which such Owner is subject, shall become and be a lien against the Unit, and shall be collected as provided herein for the collection of assessments.
If the Board determines that the need for maintenance or repair is in the Area of Common Responsibility and is caused through the willful or negligent act of any Owner, or Occupant or their family, guests, lessees, or invitees, then the Association may assess the cost of any such maintenance, repair, or replacement against the Owner's or Occupant's Unit, shall become a lien against the Unit, and shall be collected as provided herein for the collection of assessments.
(d) Measures Related to Insurance Coverage.
The Board of Directors, upon resolution, shall have the authority to require all or any Unit Owner (s) to do any act or perform any work involving portions of the Condominium which are the maintenance responsibility of the Unit Owner, which will, in the Board's sole discretion, decrease the possibility of fire or other damage in the Condominium, reduce the insurance premium paid by the Association for any insurance coverage or otherwise assist the Board in procuring or maintaining such insurance coverage. This authority shall include, but need not be limited to, requiring Owners to install and maintain smoke detectors, requiring Owners to certify that they have checked the batteries for their smoke detectors, requiring Owners to allow the Association to inspect the smoke detectors and replace batteries if needed on a schedule to be determined by the Board of Directors, requiring Owners to make improvements to the Owner's Unit, and such other measures as the Board may reasonably require so long as the cost of such work does not exceed Three Hundred and No/100 Dollars (5300.00) per Unit in any twelve (12) month period.
In addition to, and not in limitation of, any other rights the Association may have, if any Unit Owner does not comply with any requirement made by the Board of Directors pursuant to subparagraph (d)(i) above, the Association, upon fifteen (15) days written notice (during which period the Unit Owner may perform the required act or work without further
- 31 -
256991-6
9247-003 BOOK 2413 PAGE 359Ś
liability), may perform such required act or work at the Unit Owner's sole cost. Such cost shall be an assessment and a lien against the Unit as provided herein. The Association shall have all rights necessary to implement the requirements mandated by the Board pursuant to subparagraph (d)(i) of this Paragraph, including, but not limited to, a right of entry during reasonable hours and after reasonable notice to the Owner or Occupant of the Unit, except that access may be had at any time without notice in an emergency situation.
18. MORTGAGEE'S RIGHTS.
Unless at least two-thirds (2/3) of the first Mortgagees or Unit Owners give their consent, the Association or the membership shall not:
by act or omission seek to abandon or terminate the Condominium;
(i¡) change the pro rata interest or obligations of any individual Unit for the purpose of (1) levying assessments or charges or allocating distributions of hazard insurance proceeds or condemnation awards; or (2) determining the pro rata share of ownership of each Unit in the Common Elements;
partition or subdivide any Unit in any manner inconsistent with the provisions of this Declaration;
by act or omission seek to abandon, partition, subdivide, encumber, sell, or transfer the Common Elements (the granting of easements or licenses, as authorized herein, shall not be deemed a transfer within the meaning of this clause); or
use hazard insurance proceeds for losses to any portion of the Condominium (whether to Units or to Common Elements) for other than the repair, replacement, or reconstruction of such portion of the Condominium.
The provisions of this subparagraph shall not be construed to reduce the percentage vote that must be obtained from Mortgagees or Unit Owners where a larger percentage vote is otherwise required by the Act or the Condominium Instruments for any of the actions contained in this Paragraph.
Where the Mortgagee holding a first Mortgage of record, a secondary purchase money Mortgage of record (provided that neither the grantee nor any successor grantee on the secondary purchase money Mortgage is the seller of the Unit) or other purchaser of a Unit obtains title pursuant to judicial or nonjudicial foreclosure of the Mortgage, it shall not be liable, nor shall the Unit be subject to a lien, for the share of the Common Expenses or assessments by the Association chargeable to such Unit which became due prior to such acquisition of title. Such unpaid share of Common Expenses or assessments shall be deemed to be Common Expenses collectible from Owners of all the Units, including such acquirer, its successors and assigns. Additionally, such acquirer shall be responsible for all charges accruing subsequent to the passage of title, including, but notlimited to, all charges for the month in which title is passed.
(c) Upon written request to the Association, identifying the name and address of the holder and the Unit number or address, any Eligible Mortgage Holder will be entitled to timely written notice of:
- 32 -
256991-6
9247-003 BOOK 2 4 1 3 PAGE 360
any condemnation loss or any casualty loss which affects a material portion of the Condominium or any Unit on which there is a first Mortgage held by such Eligible Mortgage Holder;
any delinquency in the payment of assessments or charges owed by an Owner of a Unit subject to a first Mortgage held by such Eligible Mortgage Holder which remains unsatisfied for a period of sixty (60) days, and any default in the performance by an individual Unit Owner of any other obligation under the Condominium Instruments which is not cured within sixty (60) days;
any lapse, cancellation, or material modification of any insurance policy or fidelity bond maintained by the Association; or
any proposed action which would require the consent of a specified percentage of Eligible Mortgage Holders, as specified herein.
(a) Upon written request to the Association, identifying the name and address of the holder and the Unit number or address, any Eligible Mortgage Holder, or insurer or guarantor of a first mortgage on a Unit, will be entitled to timely written notice of:
any proposed amendment of the Condominium Instruments effecting a change in (a) the boundaries of any Unit or the exclusive easement rights appertaining thereto; (b) the interests in the Common Elements or Limited Common Elements appertaining to any Unit or the liability for Common Expenses appertaining thereto; (c) the number of votes in the Association appertaining to any Unit; or (d) the purposes to which any Unit or the Common Elements are restricted;
any proposed termination of the Condominium;
any condemnation loss or any casualty loss which affects a material portion of the Condominium or any Unit on which there is a first Mortgage held by such Eligible Mortgage Holder;
any delinquency in the payment of assessments or charges owed by an Owner of a Unit subject to a first Mortgage held by such Eligible Mortgage Holder which remains unsatisfied for a period of sixty (60) days, and any default in the performance by an individual Unit Owner of any other obligation under the Condominium Instruments which is not cured within sixty (60) days;
any lapse, cancellation, or material modification of any insurance policy or fidelity bond maintained by the Association; or
any proposed action which would require the consent of a specified percentage of Eligible Mortgage Holders, as specitied herein.
Any holder of a first Mortgage shall be entitled, upon written request, to receive within a reasonable time after request, a copy of the financial statement of the Association for the immediately preceding fiscal year, free of charge to the Mortgagee so requesting.
- 33 -
256991-6 9247-003 BOOK 24 1 3 PAGE
(f) Notwithstanding anything to the contrary herein contained, the provisions of Paragraphs 15 and 16 governing sales and leases shall not apply to impair the right of any first Mortgagee to:
foreclose or take title to a Unit pursuant to remedies contained in its Mortgage;
take a deed or assignment in lieu of foreclosure; or
sell, lease, or otherwise dispose of a Unit acquired by the Mortgagee. (g) 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 Unit in the case of distribution to such Owner of insurance proceeds or condemnation awards for losses to or a taking of the Common Elements.
Notice to Association. Upon request, each Owner shall be obligated to furnish to the Association the name and address of any mortgagee encumbering such Owner's Unit.
Failure of Mortgagee to Respond. Any Mortgagee who receives a written request from the Board to respond 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, provided such request is delivered to the Mortgagee by certified or registered mail, return receipt requested.
Construction of this Paragraph. Nothing contained in this Paragraph shall be construed to reduce the percentage vote that must otherwise be obtained under the Condominium Instruments or Georgia law for any of the actions set forth in this Paragraph.
19. GENERAL PROVISIONS.
SECURITY. THE ASSOCIATION OR THE DECLARANT MAY, BUT SHALL NOT BE REQUIRED TO, FROM TIME TO TIME, PROVIDE MEASURES OR TAKE ACTIONS WHICH DIRECTLY OR INDIRECTLY IMPROVE SECURITY ON THE CONDOMINIUM; HOWEVER, EACH OWNER, FOR HIMSELF OR HERSELF AND HIS OR HER TENANTS, GUESTS, LICENSEES, AND INVITEES, ACKNOWLEDGES AND AGREES THAT NEITHER THE ASSOCIATION NOR THE DECLARANT IS A PROVIDER OF SECURITY AND NEITHER PARTY SHALL HAVE A DUTY TO PROVIDE SECURITY ON THE CONDOMINIUM. FURTHERMORE, THE ASSOCIATION DOES NOT GUARANTEE THAT NON-UNIT OWNERS AND NON-OCCUPANTS WILL NOT GAIN ACCESS TO THE PROPERTY AND COMMIT CRIMINAL ACTS ON THE PROPERTY NOR DOES THE ASSOCIATION GUARANTEE THAT CRIMINAL ACTS ON THE PROPERTY WILL NOT BE COMMITTED BY OTHER UNIT OWNERS OR OCCUPANTS. IT SHALL BE THE RESPONSIBILITY OF EACH OWNER TO PROTECT HIS OR HER PERSON AND PROPERTY AND ALL RESPONSIBILITY TO PROVIDE SUCH SECURITY SHALL LIE SOLELY WITH EACH UNIT OWNER. NEITHER DECLARANT NOR THE ASSOCIATION SHALL BE HELD LIABLE FOR ANY LOSS OR DAMAGE BY REASON OF FAILURE TO PROVIDE ADEQUATE SECURITY OR INEFFECTIVENESS OF MEASURES UNDERTAKEN.
Dispute Resolution. Prior to filing a lawsuit against the Association, the Board, or any officer, director, or property manager of the Association, a Unit Owner or Occupant must request and attend a hearing with the Board of Directors. Any such request shall be in writing and shall be
- 34 -
256991-6 800K 2 4 1 3 PAGE 362 9247-003
personally delivered to any member of the Board of Directors or the property manager, if any, of the Association. The Owner or Occupant shall, in such request and at the hearing, make a good faith effort to explain the grievance to the Board and resolve the dispute in an amicable fashion, and shall give the Board a reasonable opportunity to address the Owner's or Occupant's grievance before filing suit. Upon receiving a request for a hearing, the Board shall give notice of the date, time and place of the hearing to the person requesting the hearing. The Board shall schedule this hearing for a date not less than seven (7) or more than twenty-one (21) days from the date of receipt of the request.
Parking Spaces and Vehicles. Neither the Declarant nor the Association shall be held liable for any loss or damage arising from theft, vandalism, malicious mischief, or any loss or damage resulting from water or acid damage, to any property placed or kept in any parking space in the Condominium. Each Owner or Occupant with use of a parking space who places or keeps a vehicle and/or any personal property in the vehicle or parking space does so at his or her own risk.
(a) Unit Keys. At the request of the Association, each Owner, by acceptance of a deed to a Unit, agrees to provide the Association with a key to the Unit [and the security alarm code, if any,] to be used by the Association for maintenance, emergency, security or safety purposes as provided in Paragraph 9(a) of this Declaration and for pest control, if necessary, as provided in Paragraph 21(e) of this Declaration. Neither the Declarant nor the Association shall be liable for any loss or damage due to its holding such key, or use of such key for the purposes described above and each Unit Owner shall indemnify and hold harmless the Declarant, the Association and its officers and directors against any and all expenses, including attorney's fees, reasonably incurred by or imposed upon the Declarant, the Association or its officers or directors in connection with any action, suit, or other proceeding (including settlement of any such action, suit or proceeding) brought by the Unit Owner or the Unit Owner's family, tenants, guests, employees, invitees, or licensees against the Declarant, the Association, its officers or directors arising out of or relating to its holding or use of such key for the purposes described above.
Right of Action. All Owners hereby acknowledge and agree that the Association shall not be entitied to institute any legal action against anyone on behalf of any or all of the Owners which is based on any alleged defect in any Unit or the Common Elements, or any damage allegedly sustained by any Owner by reason thereof, but rather, that all such actions shall be instituted by the Person(s) owning such Units or served by such Common Elements or allegedly sustaining such damage. Notwithstanding the above, once the Declarant no longer has the right to appoint and remove directors and officers, as set forth in Article III, Part A, Section 2 of the Bylaws, the Association Board of Directors may negotiate the resolution of any alleged defects) in the Common Elements and Area of Common Responsibility on behalf of the Unit Owners and shall have the right and authority to settle and release on behalf of any and all of the Unit Owners claims, causes of action, damages and suits involving the same. Any such settlement and release shall bind all Unit Owners and their successors and assigns. As set forth in Paragraph 22 hereof, no amendment to this Declaration shall (i) modify, alter, or delete any provision of this Declaration that benefits the Declarant or any rights, privileges, easements, protections, or defenses of the Declarant; or (li) alter the rights of the Unit Owners or the Association in relationship to the Declarant, without the written consent of the Declarant attached to and recorded with such amendment.
Successor Declarants. Any successor to the Declarant shall not be responsible or subject to liability by operation of law or through the purchase of Declarant's interest in the Condominium or any portion thereof at foreclosure or otherwise for any act, omission, or matter occurring or arising from any act, omission, or matter occurring prior to the time the successor succeeded to the interest of the Declarant.
- 35 -
9247-003 256991-6 BOOK 2413 PAGE 363
(g) Disclosures. Each Owner and Occupant acknowledge the following:
(i) The Condominium is located adjacent to thoroughfares that may be affected by traffic and noise from time to time and may be improved or widened in the future.
(T) The views from an Owner's Unit may change over time due to among other circumstances, additional development and the removal or addition of landscaping.
(iii) No representations are made regarding the zoning of adjacent property, or that the category to which adjacent property is zoned may not change in the future.
(IV) No representations are made regarding the schools that currently or in the tuture serve the Unit.
Since in every neighborhood, there are conditions which different people may find objectionable, it is acknowledged that there may be conditions outside of the Condominium property that an Owner or Occupant may find objectionable and that it shall be the sole responsibility of the Owners and Occupants to become acquainted with neighborhood conditions which could affect the Unit.
(vi) No representations are made that the Unit is or will be soundproof or that sound may not be transmitted from one Unit to another.
The Condominium floor plans and the dimensions and square footage calculations shown thereon are only approximations. Any Unit Owner who is concerned about any representations regarding the floor plans should do his/her own investigation as to the dimensions, measurements and square footage of his/her Unit.
(vili) All Owners and Occupants acknowledge and understand that the Declarant will be renovating portions of the Condominium and engaging in construction activities related to the renovation. Such renovation and construction activities may, from time to time, produce certain conditions on the Condominium, including, without limitation: (i) noise or sound that is objectionable because of its volume, duration, frequency or shrillness; (ii) smoke; (iii) noxious, toxic, or corrosive fumes or gases; (iv) obnoxious odors; (v) dust, dirt or flying ash; (vi) unusual fire or explosion hazards; (vii) temporary interruption of utilities; and/or (vii) other conditions that may threaten the security or safety of Persons on the Condominium. Notwithstanding the foregoing, all Owners and Occupants agree that such conditions on the Condominium resulting from renovation and construction activities shall not be deemed a nuisance and shall not cause Declarant and its agents to be deemed in violation of any
(h) Services During Declarant Control. Each Owner acknowledges that Declarant and its affiliates may provide services utilized by communities such as this Condominium including, but not limited to, management services. Each Owner consents and agrees that the Association may enter into service contracts with Declarant and its affiliates.
20. EMINENT DOMAIN
In the event of a taking by condemnation or by eminent domain, the provisions of the Act shall prevail and govern; provided, however, that any proceeds received for a taking of the Common Elements (other than Limited Common Elements) by condemnation or eminent domain shall, at the
- 36 -
256991-6
9247-003 364
800к 24 1 3 PAGE
option of the Board, either be allocated to the Owners pursuant to O.C.G.A. § 44-3-97(a), as amended, or be deposited into the Association's operating account or reserve account to be applied to Common Expenses. Each holder of a first Mortgage shall be entitled to written notice of any such condemnation proceedings, and nothing in the Condominium Instruments shall be construed to give a priority to any Unit Owner in the distribution of proceeds to such Unit.
21. EASEMENTS,
Use and Enjoyment. Each Unit Owner and Occupant shalf have a right and a nonexclusive easement of use and enjoyment in and to the Common Elements (including the right of access, ingress and egress to and from his or her Unit over those portions of the Condominium designated for such purpose), and such non-exclusive easement shall be appurtenant to and shall pass with the title to such Unit, subject to (i) the rights of the Unit Owners to the exclusive use of the Limited Common Elements assigned to their respective Units; (il) to the right of the Association to control the use and enjoyment of the Common Elements as provided by the terms of this Declaration including, but not limited to, the right of the Association to suspend voting and use privileges as provided herein; and (ili) the right of the Association to have access to the Units and Limited Common Elements assigned to a Unit to discharge its rights and obligations, under the Condominium Instruments, including without limitation, the maintenance responsibility of the Association.
Support. Every portion of a Unit and all Limited Common Elements contributing to the support of an abutting Unit shall be burdened with a non-exclusive easement of support for the benefit
Encroachments. The Units and Common Elements shall be subject to non-exclusive easements of encroachment as set forth in the Act.
Utilities. To the extent that the sprinkler system or any utility line, pipe, wire, or conduit serving any Unit, Units or the Common Elements shall lie wholly or partially within the boundaries of another Unit or the Common Elements, such other Unit, Units, or the Common Elements shall be burdened with a non-exclusive easement for the use, maintenance, repair and replacement of such sprinkler system, utility line, pipe, wire or conduit, such non-exclusive easement to be in favor of the Unit, Units, or Common Elements served by the same and the Association. It shall be the obligation of the benefited Owner to maintain, replace and repair any pipe, line, conduit, duct or wire owned by such Owner, even if such pipe, line conduit, duct or wire is located within the boundaries of a Unit of another Owner. In such circumstance, the benefited Owner shall repair all incidental damage to any Unit resulting from performance of any such work. All Unit Owners hereby covenant and agree that as finish levels can have varying degrees, such repairs will be complete only to the extent of being "paint-ready". Components that may require repair or replacement, such as tile and trim, will be reinstalled only to the extent of readily available materials or similar materials (trim and such will also be finished to 'paint-ready"). Due to the uncontrollability of quality of repair, items such as faux paint treatment, wallpaper, ceiling/wall appliqué, and any other similar types of finishes, will not be the responsibility of the benefited Owner.
(e) Pest Control. The Association may but shall not be obligated to dispense chemicals for the extermination of insects and pests within the Units and Common Elements. In the event the Association chooses to provide such pest control, the Association and its duly authorized contractors, representatives, and agents shall have an easement to enter Units for the purpose of dispensing chemicals for the exterminating of insects and pests within the Units and Common Elements. Unit Owners shall either provide a key to the Unit for purpose of such entry or have someone available at such times as are designated by the Board of Directors to allow entry into the Unit for this purpose.
- 37 -
256991-6
9247-003
воок 2 4 1 3 PAGE 365
The Association shall not be liable for any illness, damage, or injury caused by the dispensing of these chemicals for this purpose.
Community Bulletin Board. As part of the Common Elements maintained by the Association, Declarant and/or the Board shall have the right, but not the obligation, to erect on the Condominium a bulletin board primarily for the use of Unit Owners in advertising their Units for sale. For so long as the Association desires to maintain this bulletin board, each Unit Owner and his licensed real estate broker and agent may use the Condominium for access, ingress and egress to and from this bulletin board; provided, however, the use of the bulletin board shall be subject to such reasonable nondiscriminatory rules and regulations as may be adopted or promulgated by the Board regulating the size and duration of such advertisements. Declarant or Board may terminate use of this bulletin board entirely at any time, and no property rights of any kind are created hereby.
Declarant Easements. For so long as Declarant owns any Unit primarily for the purpose of sale, Declarant and its duly authorized contractors, subcontractors, representatives, agents, associates, employees, tenants and successors and assigns shall have: (1) a non-exclusive easement for access and ingress to, egress from and use of the Common Elements for the placement and maintenance of signs, banners, balloons, decorations marketing materials and tables, a sales office, a leasing office, a business office, promotional facilities and model Units on any portion of the Condominium, together with such other facilities as in the opinion of Declarant may be reasonably required, convenient or incidental to the completion, renovation, improvement, development, sale or lease of any Unit; (2) a non-exclusive easement to use the Common Elements for special events and promotional activities; (3) a transterable, non-exclusive easement on, over, through, under and across the Common Elements and Limited Common Elements for the purpose of making improvements on the Condominium or any portion thereot, for the purpose of constructing, installing, replacing, repairing, restoring and maintaining all utilities, buildings, driveways, landscaping and any other improvements on the Condominium property or serving the Condominium, and for the purpose of doing all things reasonably necessary and proper in connection therewith.
Additionally, Declarant and its duly authorized contractors, subcontractors, representatives, agents, associates, employees, tenants and successors and assigns, shall have an exclusive easement for any and all purposes it deems appropriate over, on and through Declarant's Easement Area so long as Declarant, or any successor Declarant, owns any Unit for the purpose of sale or lease or has an unexpired option to add Additional Property.
Easements in Favor of Additional Property Owner. There is reserved to Declarant and its successors and assigns, including any purchaser of the Additional Property, a non-exclusive easement upon, across, above and under all property within the Condominium (including the Common Elements and Limited Common Elements) for purposes of developing the Additional Property whether or not it is developed as part of the Condominium. In accordance therewith and until such time as Declarant or its successors record an amendment to the Declaration effecting the submission of the Additional Property (which is not required), then it shall be expressly permissible for Declarant and its successors and assigns to maintain and carry on, upon such portion of the Condominium as Declarant may deem necessary, such facilities and activities as in the sole opinion of Declarant may be required, convenient or incidental to Declarant's development, construction and sales activities related to developing the Additional Property whether or not it is developed as part of the Condominium including, but without limitation, the following:
the right of access, ingress and egress for vehicular and pedestrian traffic over, under, on or in the Condominium;
- 38 -
256991-6
9247-003 800K 24 1 3 PACE 366
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 Condominium;
(0) the right to carry on sales and promotional activities in the community and the right to construct and operate business offices, signs, construction trailers, residences, model Units, and sales offices. Declarant may use residences, offices or other Units owned or used by Declarant as model Units and sales offices.
Rights exercised pursuant to such 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 the damage at his or her sole expense. This Paragraph shall not be amended without the Declarant's or Declarant's successor's and assign's express written consent, so long as the Additional Property has not been submitted to the Condominium.
Facade Easement and Historic Preservation Ordinance. The Condominium is subject to all the terms of the Facade Easement and Historic Preservation Ordinance, including, without limitation, requirements with regard to all architectural modifications or additions. The Association and Owners shall comply with all maintenance, repair, or other obligations required by the terms of the Facade Easement and Historic Preservation Ordinance.
22. AMENDMENTS.
Except where a higher vote is required for action under any other provisions of this Declaration or by the Act, in which case such higher vote shall be necessary to amend such provision, this Declaration may be amended by the affirmative vote, written consent, or any combination of affirmative vote and written consent of the members of the Association holding two-thirds (2/3) of the total eligible Association vote and such amendment shall otherwise comply with the provisions of Section 44-3-93 of the Act. As long as Declarant owns any Unit primarily for the purpose of sale, any amendment to this Declaration or the Bylaws shall require the written consent of Declarant. In addition, no amendment to this Declaration shall alter the easement rights contained in this Declaration without the consent of the Person holding such easement rights. Notwithstanding the above, no amendment shall modify, alter, or delete any provision of this Declaration that benefits the Declarant or any easement rights of the Declarant without the written consent of the Declarant attached to and recorded with such amendment. Notice of any meeting at which a proposed amendment will be considered shall state the fact of consideration and the subject matter of the proposed amendment. No amendment shall be effective until certified by the President and Secretary of the Association and recorded in the Athens-Clarke County, Georgia land records.
In addition to the above, material amendments to this Declaration must be approved by Eligible Mortgage Holders who represent at least fifty-one percent (51%) of the votes of Units that are subject to Mortgages held by Eligible Mortgage Holders. Notwithstanding the above, the approval of any proposed amendment by an Eligible Mortgage Holder shall be deemed implied and consented to if the Eligible Mortgage Holder fails to submit a response to any written proposal for an amendment within thirty (30) days after the Eligible Mortgage Holder receives notice of the proposed amendment sent by certified or registered mail, return receipt requested. Material amendments are those that establish, provide for, govern or regulate any of the following:
- 39 -
256991-6
9247-003 BOOK 2413 PAGE 36%
(a) Voting;
(D) Assessments, assessment liens or subordination of such liens;
(c) Reserves for maintenance, repair and replacement of the Common Elements; (d) Insurance or fidelity bonds;
(e) Rights to use of the Common Elements;
Responsibility for maintenance and repair of the Condominium;
Expansion or contraction of the Condominium or the addition, annexation or withdrawal of property to or from the Condominium, except the submission of the Additional Property to the Condominium as set forth in this Declaration;
(h) Boundaries of any Unit;
(i) The interests in the Common Elements or Limited Common Elements;
Convertibility of Units into Common Elements or of Common Elements into Units; (k) Leasing of Units;
Imposition of any right of first refusal or similar restriction on the right of a Unit Owner to sell, transfer, or otherwise convey his or her Unit in the Condominium;
(m) Establishment of self-management by the Condominium Association where professional management has been required by any of the agencies or corporations set forth below; and
(n) Amendment of any provisions that are for the express benefit of Eligible Mortgage holders or insurers or guarantors of first mortgages on Units in the Condominium.
Notwithstanding the foregoing, Declarant or the Board of Directors, without the necessity of a vote from the Owners, may amend this Declaration to correct any scriveners errors, comply with any applicable state, city or federal law, and/or to bring the Condominium into compliance with applicable rules and regulations of the Federal National Mortgage Association ('Fannie Mae), the Department of Housing and Urban Development ("HUD") and the Veterans Administration ("VA") pursuant to federal
Any action to challenge the validity of an amendment adopted under this Paragraph must be brought within one (1) year of the effective date of such amendment. No action to challenge such amendment may be brought after such time.
23. SEVERABILITY.
Invalidation of any one of these covenants or restrictions by judgment or court order or otherwise shall in no way affect the application of such provision to other circumstances or affect any other provision(s), which shall remain in full force and effect.
- 40 -
256991-6
9247-003
BOOK 2413 PAGE 368
24. DECLARANT RIGHTS.
Notwithstanding anything to the contrary herein, and in addition to Declarant's right to appoint and remove officers and directors under Article III, Section 2 of the Bylaws and other rights set forth herein, Declarant shall have the right, as long as Declarant owns at least one (1) Unit, to conduct such sales, marketing, leasing, administrative and other activities at the Condominium as Declarant deems appropriate for the sale, marketing or leasing of any Unit and Declarant shall have a non-exclusive easement right across the Common Elements to erect signs, banners, balloons and other decorations and to conduct such other sales, marketing and leasing activities as provided herein. The expiration of Declarant's right to appoint and remove officers and directors of the Association pursuant to Article III, Section 2 of the Bylaws shall not terminate or alter the status of the above-referenced entity and its respective successors and assigns as the Declarant hereunder or divest the Declarant of other rights specifically reserved to the Declarant herein.
25. EXPANSION OF THE CONDOMINIUM.
Declarant reserves the option to expand the Condominium by adding to the Condominium all or any part of the Additional Property on one or more occasions. Except for zoning and other governmental requirements, there are no limitations as to the location of improvements on the Additional Property. The Additional Property may be added as a whole at one time or portions may be added at different times. There are no limitations fixing the boundaries of any portion of the Additional Property which may be submitted to the Declaration, and there are no limitations regulating the order in which portions of the Additional Property may be submitted to this Declaration. This option shall expire seven (7) years from the date of recording of this Declaration; provided, however, that Owners of Units to which two-thirds (2/3) of the total vote in the Association appertain, excluding any votes appurtenant to any Unit or Units then owned by the Declarant, may consent to the extension of this expansion option within one (1) year prior to the date upon which the option would have otherwise expired. The maximum number of Units that may be created on the Additional Property and added to the Condominium is thirty (30). The maximum average number of Units per acre that may be created on any portion of property added to the Condominium is 6.32. No assurances are made that any improvements will be made on all or any of the Additional Property which may be submitted to the Declaration. The Additional Property shall not necessarily be restricted exclusively to residential use, but shall be subject only to uses allowed by applicable zoning ordinances. No assurances are made that the units which may be built on all or any portion of the Additional Property will be substantially identical to the Units on the submitted property in any way whatsoever, including but not limited to the quality of construction, the principal materials to be used in such construction and architectural style. All improvements to be located on each portion of the Additional Property that is being submitted to the Condominium shall be substantially complete prior to its submission to the Condominium. The Declarant shall have the right to assign Limited Common Elements on the Additional Property, which may include Limited Common Elements different from those assigned in this Declaration and there shall be no limitations on the right to assign Limited Common Elements on the Additional Property. In addition, in the event that the Additional Property is added to the Condominium, Declarant shall have the right, but not the obligation, to assign portions of the existing Condominium as Limited Common Elements to some or all of the Units existing as of the date of recording of this Declaration. The undivided interests in the Common Elements are allocated among the Condominium Units on the submitted property on the basis of the square footage of the Units and, in the event the Declaration is amended, to include any portion of the Additional Property, shall be reallocated among the Condominium Units on the submitted property and the Additional Property on the same basis. Any expansion under this Paragraph shall be effected by Declarant's executing and recording the amendments to this Declaration, the plats and the plans required by the Act and to reflect any differences in the subsequent phase or phases as contemplated by this
- 41 -
256991-6
9247-003 BOOK 2413 PAGF
Paragraph, at Declarant's sole expense. The Condominium Units thereby created and added shall be owned by Declarant, but the Common Elements shall be owned by all of the Unit Owners.
26. PREPARER.
This Declaration was prepared by Linda B. Curry, Weissman, Nowack, Curry & Wilco, P.C., One Alliance Center, 4" Floor, 3500 Lenox Road, Atlanta, Georgia 30326.
[SIGNATURES ON FOLLOWING PAGE]
- 42 -
256991-6 BOOK 2413 PAGE 370 9247-003
MY OUTNESS 300 OF. Do are has executed he Decaden teal is day. of
DECLARANT: WHITEHALL MILL, LLC,
a Georgia limited liability company
2. Brine Galla _(SEAL) By:
Name:_ w. Bruce ballada
Title: Mandper
Signed, sealed, and delivered
this 5_ day of May _ 2000
in the presence oi:
Nine t ist
Notary Public:
NOTARY SEAL MY COMMISSION EXPIRES DEC. 16, 2005
"0D1
^ CC
- 43 -
256991-6
9247-003 BOOK 2413 PAGE 371
EXHIBITỌA"
Description of Submitted Property
ALL THAT TRACT OR PARCEL OF LAND LYING AND BEING IN G.M.D. 217 OF ATHENSCLARKE COUNTY, GEORGIA CONTAINING 8.787 ACRES AND BEING PARTICULARLY DESCRIBED AS FOLLOWS:
BEGINNING AT A ½" REBAR SET AT THE INTERSECTION OF THE SOUTHEASTERLY RIGHT OF WAY OF WHITEHALL ROAD, HAVING A RIGHT OF WAY OF VARIABLE WIDTH AND THE SOUTHWESTERLY RIGHT OF WAY OF WHITE CIRCLE; THENCE RUNNING ALONG SAID RIGHT OF WAY OF WHITE CIRCLE THE FOLLOWING COURSES AND DISTANCES: SOUTH 12 DEGREES 09 MINUTES 17 SECONDS EAST FOR A DISTANCE OF 26.49 FEET TO A POINT;
SOUTH 14 DEGREES 44 MINUTES 36 SECONDS EAST FOR A DISTANCE OF 39.29 FEET TO A POINT;
SOUTH 22 DEGREES 51 MINUTES 43 SECONDS EAST FOR A DISTANCE OF 290.85 FEET TO A POINT;
SOUTH 29 DEGREES 36 MINUTES 15 SECONDS EAST FOR A DISTANCE OF 50.61 FEET TO A POINT;
THENCE LEAVING SAID RIGHT OF WAY AND RUNNING SOUTH 07 DEGREES 49 MINUTES 58 SECONDS EAST FOR A DISTANCE OF 123.78 FEET TO A POINT; THENCE SOUTH 37 DEGREES 11 MINUTES 24 SECONDS EAST FOR A DISTANCE OF 83.78 FEET TO A POINT; THENCE SOUTH 75 DEGREES 48 MINUTES 53 SECONDS EAST FOR A DISTANCE OF 112.00 FEET TO A POINT; THENCE NORTH 80 DEGREES 36 MINUTES 25 SECONDS EAST FOR A DISTANCE OF 289.00 FEET TO A POINT; THENCE NORTH 75 DEGREES 25 MINUTES 19 SECONDS EAST FOR A DISTANCE OF 417.17 FEET TO A POINT; THENCE SOUTH 21 DEGREES 35 MINUTES 55 SECONDS EAST FOR A DISTANCE OF 186.95 FEET TO A POINT LOCATED IN THE CENTERLINE OF NORTH OCONEE RIVER; THENCE RUNNING ALONG THE CENTERLINE OF SAID RIVER THE FOLLOWING COURSES AND DISTANCES:
SOUTH 65 DEGREES 09 MINUTES 47 SECONDS WEST FOR A DISTANCE OF 336.94 FEET TO A POINT;
SOUTH 67 DEGREES 08 MINUTES 10 SECONDS WEST FOR A DISTANCE OF 180.16 FEET TO A POINT;
SOUTH 74 DEGREES 41 MINUTES 39 SECONDS WEST FOR A DISTANCE OF 196.99 FEET TO A POINT;
NORTH 81 DEGREES 39 MINUTES 44 SECONDS WEST FOR A DISTANCE OF 117.24 FEET TO A POINT;
NORTH 66 DEGREES 27 MINUTES 23 SECONDS WEST FOR A DISTANCE OF 152.71 FEET TO A POINT;
NORTH 52 DEGREES 01 MINUTES 42 SECONDS WEST FOR A DISTANCE OF 104.02 FEET TO A POINT;
NORTH 26 DEGREES 46 MINUTES 03 SECONDS WEST FOR A DISTANCE OF 253.12 FEET TO A POINT;
NORTH 24 DEGREES 37 MINUTES 25 SECONDS WEST FOR A DISTANCE OF 316.81 FEET TO A POINT;
NORTH 26 DEGREES 24 MINUTES 47 SECONDS WEST FOR A DISTANCE OF 168.60 FEET TO A POINT ON THE SOUTHEASTERLY RIGHT OF WAY OF WHITEHALL ROAD; THENCE RUNNING ALONG THE SOUTHEASTERLY RIGHT OF WAY OF WHITEHALL ROAD
256991-6 BOOK 2413 PAGE 372
ALONG A CURVE TO THE RIGHT HAVING A RADIUS OF 876.74 FEET AND AN ARC LENGTH OF 202.62 FEET, SAID ARC BEING SUBTENDED BY A CHORD OF NORTH 62 DEGREES 18 MINUTES 26 SECONDS EAST FOR A DISTANCE OF 202.17 FEET TO A NAIL SET; THENCE CONTINUING ALONG SAID RIGHT OF WAY SOUTH 21 DEGREES 04 MINUTES 20 SECONDS EAST FOR A DISTANCE OF 40.00 FEET TO A NAIL SET; THENCE CONTINUING ALONG SAID RIGHT OF WAY ALONG A CURVE TO THE RIGHT HAVING A RADIUS OF 836.74 FEET AND AN ARC LENGTH OF 42.50 FEET, SAID ARC BEING SUBTENDED BY A CHORD OF NORTH 70 DEGREES 23 MINUTES 00 SECONDS EAST FOR A DISTANCE OF 42.50 FEET TO A iỊ REBAR SET ON THE SOUTHWESTERLY RIGHT OF WAY OF SAID WHITE CIRCLE, SAID REBAR BEING THE POINT OF BEGINNING.
256991-6 воок 2413PAСE 373
........ ......
EXIBIT ạB"
Undivided Percentage Interest In The Common Elements
And Liabilities For Common Expenses
Unit Approximate • Ownership
Number Square Feet Percentage
1,391.00 2.95%
2 1,728.0ął 3.67%
1,211.00 2.57%
1,580.00 3.35%
1,211.00 2.57%
1,369.00 2.91%
1,372.0ł 2.91%
1,366.00 2.90%
1,211.00 2.57%
1,211.00 2.57%
1,211.00 2.57%
1,211.00 2.57%
1,468.00 3.12%
1,211.00 2.57%
1,552.00 3.30%
1,298.00 2.76%
1,417.00 3.01%
1,407.00 2.99%
1,219.00 2.59%
1,211.00 2.57%
1,219.00 2.59%
1,211.0ął 2.57%
1,219.00 2.59%
1.211.00 2.57%
1,219.00 2.59%
1,211.00 2.57%
1,219.00 2.59%
28 1,211.00 2.57%
29 1,219.00 2.59%
30 1,202.00 2.55%
31 1,805.0ął 3.84%
32 1,616.00 3.43%
33 1,936.00 4.11%
34 2,734.00 5.81%
TOTAL 47,087-00 100.00%
BOOK 2 4 1 3 PAGE 374 256991-6
EXHIBIT "C"
Description Of Additional Property
ALL THAT TRACT OR PARCEL OF LAND LYING AND BEING IN G.M.D. 217 OF ATHENSCLARKE COUNTY, GEORGIA CONTAINING 4.422 ACRES AND BEING PARTICULARLY DESCRIBED AS FOLLOWS:
TO REACH THE TRUE POINT OF BEGINNING, COMMENCE AT A ½" REBAR SET AT THE INTERSECTION OF THE SOUTHEASTERLY RIGHT OF WAY OF WHITEHALL ROAD, HAVING A RIGHT OF WAY OF VARIABLE WIDTH AND THE SOUTHWESTERLY RIGHT OF WAY OF WHITE CIRCLE; THENCE RUNNING ALONG SAID RIGHT OF WAY OF WHITE CIRCLE THE FOLLOWING COURSES AND DISTANCES:
SOUTH 12 DEGREES 09 MINUTES 17 SECONDS EAST FOR A DISTANCE OF 26,49 FEET TO A POINT;
SOUTH 14 DEGREES 44 MINUTES 36 SECONDS EAST FOR A DISTANCE OF 39.29 FEET TO A POINT;
SOUTH 22 DEGREES 51 MINUTES 43 SECONDS EAST FOR A DISTANCE OF 290.85 FEET TO A POINT;
SOUTH 29 DEGREES 36 MINUTES 15 SECONDS EAST FOR A DISTANCE OF 50.61 FEET TO A POINT AND THE TRUE POINT OF BEGINNING;
FROM THE TRUE POINT OF BEGINNING THUS ESTABLISHED, CONTINUING ALONG THE SOUTHWESTERLY, SOUTHERLY, AND SOUTHEASTERLY RIGHT OF WAY OF WHITE CIRCLE THE FOLLOWING COURSES AND DISTANCES
SOUTH 36 DEGREES 52 MINUTES 11 SECONDS EAST FOR A DISTANCE OF 50.00 FEET TO A POINT;
SOUTH 44 DEGREES 59 MINUTES 59 SECONDS EAST FOR A DISTANCE OF 50.91 FEET TO A POINT;
SOUTH 52 DEGREES 41 MINUTES 45 SECONDS EAST FOR A DISTANCE OF 52.80 FEET TO A POINT;
SOUTH 70 DEGREES 12 MINUTES 03 SECONDS EAST FOR A DISTANCE OF 53.14 FEET TO A POINT;
NORTH 83 DEGREES 09 MINUTES 27 SECONDS EAST FOR A DISTANCE OF 50.36 FEET TO A POINT;
NORTH 59 DEGREES 02 MINUTES 11 SECONDS EAST FOR A DISTANCE OF 34.99 FEET TO A POINT;
NORTH 45 DEGREES 00 MINUTES 01 SECONDS EAST FOR A DISTANCE OF 36.77 FEET TO A POINT;
NORTH 42 DEGREES 27 MINUTES 57 SECONDS EAST FOR A DISTANCE OF 174.47 FEET TO A 1 1/2" AXLE FOUND;
NORTH 42 DEGREES 04 MINUTES 48 SECONDS EAST FOR A DISTANCE OF 79.45 FEET TO A ½" REBAR FOUND;
NORTH 45 DEGREES 27 MINUTES 36 SECONDS EAST FOR A DISTANCE OF 85.01 FEET
½" REBAR FOUND;
THENCE LEAVING SAID RIGHT OF WAY AND RUNNING SOUTH 36 DEGREES 49 MINUTES 11 SECONDS EAST FOR A DISTANCE OF 159.96 FEET TO A 1 ¼" OPEN TOP FOUND; THENCE NORTH 67 DEGREES 36 MINUTES 00 SECONDS EAST FOR A DISTANCE OF 80.08 FEET TO
BOOK 2 4 1 3 PAGE 375 256991-6
A ½" REBAR FOUND; THENCE NORTH 36 DEGREES 06 MINUTES 41 SECONDS WEST FOR A DISTANCE OF 197.88 FEET TO A ½" REBAR SET ON THE AFORESAID SOUTHEASTERLY RIGHT OF WAY OF WHITE CIRCLE; THENCE RUNNING ALONG SAID RIGHT OF WAY NORTH 46 DEGREES 00 MINUTES 19 SECONDS EAST FOR A DISTANCE OF 27.49 FEET TO AỊ REBAR SET; THENCE CONTINUING ALONG SAID RIGHT OF WAY NORTH 48 DEGREES 55 MINUTES 50 SECONDS EAST FOR A DISTANCE OF 92.79 FEET TO A ¾" OPEN TOP FOUND; THENCE LEAVING SAID RIGHT OF WAY SOUTH 36 DEGREES 14 MINUTES 17 SECONDS EAST FOR A DISTANCE OF 141.52 FEET TO AỊi SOLID ROD FOUND; THENCE NORTH 57 DEGREES 53 MINUTES 33 SECONDS EAST FOR A DISTANCE OF 90.70 FEET TO AỊ REBAR SET; THENCE SOUTH 26 DEGREES 59 MINUTES 40 SECONDS EAST FOR A DISTANCE OF 217.37 FEET TO A ½" REBAR SET; THENCE SOUTH 58 DEGREES 24 MINUTES 30 SECONDS WEST FOR A DISTANCE OF 75.36 FEET TO A ½" REBAR FOUND; THENCE SOUTH 21 DEGREES 35 MINUTES 55 SECONDS EAST FOR A DISTANCE OF 85.21 FEET TO A POINT; THENCE SOUTH 75 DEGREES 25 MINUTES 19 SECONDS WEST FOR A DISTANCE OF 417.17 FEET TO A POINT; THENCE SOUTH 80 DEGREES 36 MINUTES 25 SECONDS WEST FOR A DISTANCE OF 289.00 FEET TO A POINT; THENCE NORTH 75 DEGREES 48 MINUTES 53 SECONDS WEST FOR A DISTANCE OF 112.00 FEET TO A POINT; THENCE NORTH 37 DEGREES 11 MINUTES 24 SECONDS WEST FOR A DISTANCE OF 83.78 FEET TO A POINT; THENCE NORTH 07 DEGREES 49 MINUTES 58 SECONDS WEST FOR A DISTANCE OF 123.78 FEET TO A POINT LOCATED ON THE SOUTHWESTERLY RIGHT OF WAY OF WHITE CIRCLE AND THE TRUE POINT OF BEGINNING.
TOGETHER WITH:
ALL THAT TRACT OR PARCEL OF LAND LYING AND BEING IN G.M.D. 217 OF ATHENSCLARKE COUNTY, GEORGIA CONTAINING 0.323 ACRES AND BEING PARTICULARLY DESCRIBED AS FOLLOWS:
TO REACH THE TRUE POINT OF BEGINNING, COMMENCE AT A ½" REBAR SET AT THE INTERSECTION OF THE SOUTHEASTERLY RIGHT OF WAY OF WHITEHALL ROAD, HAVING A RIGHT OF WAY OF VARIABLE WIDTH AND THE SOUTHWESTERLY RIGHT OF WAY OF WHITE CIRCLE; THENCE RUNNING ALONG THE SOUTHWESTERLY, SOUTHERLY AND SOUTHEASTERLY RIGHT OF WAY OF WHITE CIRCLE THE FOLLOWING COURSES AND DISTANCES:
SOUTH 12 DEGREES 09 MINUTES 17 SECONDS EAST FOR A DISTANCE OF 26.49 FEET TO A POINT;
SOUTH 14 DEGREES 44 MINUTES 36 SECONDS EAST FOR A DISTANCE OF 39.29 FEET TO A POINT;
SOUTH 22 DEGREES 51 MINUTES 43 SECONDS EAST FOR A DISTANCE OF 290.85 FEET TO A POINT;
SOUTH 29 DEGREES 36 MINUTES 15 SECONDS EAST FOR A DISTANCE OF 50.61 FEET TO A POINT;
SOUTH 36 DEGREES 52 MINUTES 11 SECONDS EAST FOR A DISTANCE OF 50.00 FEET TO A POINT;
SOUTH 44 DEGREES 59 MINUTES 59 SECONDS EAST FOR A DISTANCE OF 50.91 FEET TO A POINT;
SOUTH 52 DEGREES 41 MINUTES 45 SECONDS EAST FOR A DISTANCE OF 52.80 FEET TO A POINT;
SOUTH 70 DEGREES 12 MINUTES 03 SECONDS EAST FOR A DISTANCE OF 53.14 FEET TO A POINT;
NORTH 83 DEGREES 09 MINUTES 27 SECONDS EAST FOR A DISTANCE OF 50.36 FEET
256991-6 BOOK 2413 PAGE 376
TO A POINT;
NORTH 59 DEGREES 02 MINUTES 11 SECONDS EAST FOR A DISTANCE OF 34.99 FEET TO A POINT;
NORTH 45 DEGREES 00 MINUTES 01 SECONDS EAST FOR A DISTANCE OF 36.77 FEET TO A POINT;
NORTH 42 DEGREES 27 MINUTES 57 SECONDS EAST FOR A DISTANCE OF 174.47 FEET TO A 1 1/2" AXLE FOUND;
NORTH 42 DEGREES 04 MINUTES 48 SECONDS EAST FOR A DISTANCE OF 79.45 FEET TO A ½" REBAR FOUND;
NORTH 45 DEGREES 27 MINUTES 36 SEÇONDS EAST FOR A DISTANCE OF 85.01 FEET TO A
½" REBAR FOUND AND THE TRUE POINT OF BEGINNING;
FROM THE TRUE POINT OF BEGINNING THUS ESTABLISHED, CONTINUING ALONG SAID RIGHT OF WAY NORTH 40 DEGREES 31 MINUTES 24 SECONDS EAST FOR A DISTANCE OF 82.00 FEET TO A ½" REBAR SET; THENCE LEAVING SAID RIGHT OF WAY AND RUNNING SOUTH 36 DEGREES 06 MINUTES 41 SECONDS EAST FOR A DISTANCE OF 197.88 FEET TO A ỊiREBAR FOUND; THENCE SOUTH 67 DEGREES 36 MINUTES 00 SECONDS WEST FOR A DISTANCE OF 80.08 FEET TO A 1 iỊOPEN TOP FOUND; THENCE NORTH 36 DEGREES 49 MINUTES 11 SECONDS WEST FOR A DISTANCE OF 159.96 FEET TO A ½" REBAR FOUND ON THE AFORESAID SOUTHEASTERLY RIGHT OF WAY OF WHITE CIRCLE AND THE TRUE POINT OF BEGINNING.
BOOK 2413 PAGE 377 256991-6
.......
EXHIBIT IDI
BYLAWS
OF
WHITEHALL MILL CONDOMINIUM ASSOCIATION, INC.
WEISSMAN, NOWACK, CURRY & WILCO, P.C
Attorneys
One Alliance Center, 4th Floor
3500 Lenox Road
Atlanta, Georgia 30326
(404) 926-4500
COPYRIGHT @ 2003.
All rights reserved. These Bylaws may be used only in connection with the sale of property at Whitehall Mill Condominium and the operation of the Whitehall Mill Condominium Association, Inc.
BOOK 2 4 1 3 PACE 378
TABLE OF CONTENTS
Page
L. GENERAL
Applicability
2. Name...
3. Definitions...
4. Membership.
5. Entity Members.
6. Voting..
7. Majority.. 2
8. Purpose.. 2
II. MEETINGS OF MEMBERS
1. Annual Meetings
2. Special Meetings.
3. Notice of Meetings. 22239
4. Waiver of Notice
5. Quorum
6. Adjourment
7. Proxy..
8. Action Taken Without a Meeting..
9. Order of Business.
mI. BOARD OF DIRECTORS
A. Composition and Selection
1. Composition and Eligibility.
2. Directors Appointed by Declarant.. 4
3. Number of Directors and Term of Office.. 4
4. Removal of Members of the
Board of Directors..
5. Vacancies.
6. Compensation
7. Director Conflicts of Interest
8. Nomination.
9. Elections.
B. Meetings.
1. Regular Meetings.
2. Special Meetings. 6
3. Waiver of Notice..
4. Conduct of Meetings.
5. Open Meetings....
6. Action Without a Meeting ..
BOOK 2 41 3 PAGE 379
Page
C. Powers and Duties.
1. Powers and Duties.
2. Management Agent.
3. Borrowing.....
4. Liability and Indemnification
of Officers and Directors.. 8
D. Committees.
1. Architectural Control Committec..
2. Other Committees. 00 00
3. Service on Committees ..
IV. OFFICERS
1. Designation.
2. Election of Officers
3. Removal of Officers 9
4. Vacancies 9
5. President.. 9
6. Vice President 9
7. Secretary. 9
8. Treasurer. 9
9. Other Officers..
10. Agreements, Contracts,
Deeds, Leases, Etc.
V. RULE MAKING AND ENFORCEMENT
1. Authority and Enforcement.. 10
2. Fining and Suspension Procedure. 10
3. Additional Enforcement Rights.. 11
VI. MISCELLANEOUS
1. Notices
2. Severability.
3. Captions....
4. Gender and Grammar
5. Fiscal Year.
6. Financial Review
7. Conflicts. 12
8. Amendment 12
9. Books and Records. 12
BOOK 2413 PAGE 380
BYLAWS
OF
WHITEHALL MILL CONDOMINIUM ASSOCIATION, INC.
Article 1
General
Section I. Applicability. These Bylaws provide for the self-government of Whitehall Mill Condominium Association, Inc. in accordance with the Georgia Condominium Act, O.C.G.A. § 44-3-70, er seg. (1991 and Supp. 2002 as may be amended from time to time, the Articles of Incorporation filed with the Secretary of State and the Declaration of Condominium for Whitehall Mill Condominium, recorded in the Athens-Clarke County, Georgia land records (Declaration).
Section 2. Name. The name of the corporation is Whitehall Mill Condominium Association, Inc. ("Association").
Section 3. Definitions. The terms used herein shall have their generally accepted meanings or such meanings as are specified in Paragraph 2 of the Declaration.
Section 4. Membership. An Owner of a Unit shall automatically become a member of the Association upon taking title to the Unit and shall remain a member for the entire period of ownership. As may be more fully provided below, a spouse or a cohabitant of a member may exercise the powers and privileges of the member. If title to a Unit is held by more than one (1) Person, the membership shall be shared in the same proportion as the title, but there shall be only one (1) membership and one (1) vote per Unit. Membership does not include Persons who hold an interest merely as security for the performance of an obligation, and the giving of a security interest shall not terminate the Owner's membership. Membership shall be appurtenant to the Unit and shall be transferred automatically by conveyance of that Unit and may be transferred only in connection with the transfer of title.
Section 5. Entity Members. In the event an Owner is a corporation, limited liability company, partnership, trust, or other legal entity not being a natural person or persons, then any natural person who is an officer, director, or other designated agent of such corporation, partner of such partnership, beneficiary or other designated agent of such trust, manager of a limited liability company or representative of such other legal entity shall be eligible to represent such entity or entities in the affairs of the Association, including, without limitation, serving on the Board of Directors of the Association. Such person's relationship with the Association shall terminate automatically upon the termination of such person's relationship with the entity or entities which are the Owner, and termination of the person's relationship with the Association will create a vacancy in any elected or appointed position within the Association in which such person may have been serving and such vacancy will be filled in accordance with these Bylaws.
Section 6. Voting. Each Unit shall be entitled to one (1) equal vote, which vote may be cast by the Owner, the Owner's spouse, the cohabitant of the Owner, or by a lawful proxy as provided below. When more than one (1) Person owns a Unit, the vote for such Unit shall be exercised as they determine between or among themselves, but in no event shall more than one (1) vote be cast with respect to any Unit. If only one (1) co-owner attempts to cast the vote for a Unit, it shall be conclusively presumed that such co-owner is authorized on behalf of all co-owners to cast the vote for such Unit. In the event of disagreement between or among co-owners and an attempt by two (2) or more of them to cast such vote or votes, such Persons
- 1 -
257040-2
9247-003
BOOK 2413 PACE 381Í
shall not be recognized and such vote or votes shall not be counted. No Owner shall be eligible to vote. either in person or by proxy, or to act as a proxy for any other member, if that Owner is shown on the books or management accounts of the Association to be more than thirty (30) days delinquent in any payment due the Association or if the Owner has had its voting rights suspended for the infraction of any provision of the Declaration, these Bylaws, or any rule of the Association. If the voting rights of an Owner have been suspended, that Owner shall not be counted as an eligible vote for purposes of establishing a majority or a
Section 7. Majority. As used in these Bylaws, the term 'majority" shall mean those votes, Owners, or other group as the context may indicate totaling more than fifty percent (50%) of the total number of eligible votes, Owners, or other group, respectively. Unless otherwise specifically stated, the words "majority vote" mean more than fifty percent (50%) of those voting in person or by proxy. Except as otherwise specifically provided in the Declaration or these Bylaws, all decisions shall be by majority vote.
Section 8. Purpose. The Association shall have the responsibility of administering the Condominium, establishing the means and methods of collecting the contributions to the Common Expenses, arranging for the management of the Condominium and performing all of the other acts that may be required to be performed by the Association pursuant to the Act., the Georgia Nonprofit Corporation Code and the Declaration. Except as to those matters which the Act, the Declaration or the Georgia Nonprofit Corporation Code specifically require to be performed by the vote of the Association membership, the administration of the foregoing responsibilities shall be performed by the Board of Directors as more particularly set forth below.
Section 9. Electronic Documents and Signatures.
(a) Documents. Whenever these Bylaws require that a document, record or instrument be "written" or "in writing.' the requirement is deemed satisfied by an Electronic Document. "Electronic Document means information created, transmitted, received, or stored by electronic means and retrievable in human perceivable form, such as email, web pages, electronic documents, facsimile transmissions, etc. Records, documents and instruments shall not be denied effect or validity solely on the grounds that they are electronic.
(b) Signatures. Whenever these Bylaws require a signature, an electronic signature satisfies that requirement only if: (1) the signature is easily recognizable as a Secure Electronic Signature which is capable of verification, under the sole control of the signatory, and attached to the electronic document in such a way that the document cannot be modified without invalidating the signature; or (2) the Board reasonably believes. that the signatory affixed the signature with the intent to sign the Electronic Document, and that the Electronic Document has not been modified since the signature was affixed.
(c) Verification and Liability for Falsification. The Board may require reasonable verification of any electronic signature, document, record or instrument. Pending verification, the Board may refuse to accept any electronic signature, document, record or instrument which, in the Board's sole discretion, is not clearly authentic. Neither the Board nor the Association shall be liable to any Member or any other Person for accepting or acting in reliance upon an electronic signature or Electronic Document which the Board reasonably believes to be authentic. Any Member or Person who negligently, recklessly or intentionally submits any falsified Electronic Document or unauthorized electronic signature shall fully indemnify the Association for actual damages, reasonable attorneys' fees and expenses incurred as a result of such acts.
- 2-
257040-2
9247-003
BOOK 2413 PAGE 382
Article I1
Meetings of Members
Section 1. Annual Meetings. The regular annual meeting of the members shall be held during the fourth quarter of each year with the date, hour, and place to be set by the Board of Directors. No annual meeting of the Association shall be set on a legal holiday.
Section 2. Special Meetings. Special meetings of the members may be called for any purpose at any time by the President or Secretary, by request of any two (2) members of the Board of Directors, or upon written petition of Owners holding at least fifteen percent (15%) of the total eligible Association vote. Any such written petition by the members must be submitted to the Association's Secretary. The Secretary shall then verify that the required number of members have joined in the petition and shall submit all proper petitions to the Association's President. The President shall then promptly call a special meeting for the purpose stated in the petition setting the date, time and location of the meeting (which is not required to be the date, time or location requested in any petition submitted to the Association), and the Secretary shall send notice of the meeting in accordance with these Bylaws. Any special meeting called pursuant to written petition shall be set within thirty (30) days of the date of the petition.
Section 3. Notice of Meetings. It shall be the duty of the Secretary to mail or deliver to the record Owner of each Unit or to the Units a notice of each annual or special meeting of the Association at least twenty-one (21) days prior to each annual meeting and at least seven (7) days prior to cach special meeting. The notice shall state the purpose of any special meeting, as well as the time and place where it is to be held The notice of an annual meeting shall state the time and place of the meeting. If any Owner wishes notice to be given at an address other than his or her Unit, the Owner shall have designated by notice in writing to the Secretary such other address. The mailing or delivering of a notice of meeting in the manner provided in this Section shall be considered proper service of notice.
Section 4. Waiver of Notice. Waiver of notice of meeting of the Owners shall be deemed the equivalent of proper notice. Any Owner may, in writing, waive notice of any meeting of the Owners, either before or after such meeting. Attendance at a meeting by an Owner, whether in person or represented by proxy, shall be deemed waiver by such Owner of notice of the time, date, and place thereof unless such Owner specifically objects to lack of proper notice it the time the meeting is called to order. Attendance at a special meeting shall also be deemed waiver of notice of all business transacted at such meeting unless objection to lack of notice is raised before the business, of which proper notice was not given, is put to a vote.
Section 5. Quorum. Except as may be provided elsewhere, the presence of Owners, in person or by proxy, entitled to cast one-third (1/3) of the total eligible Association vote shall constitute a quorum. Once a quorum is established for a meeting, it shall conclusively be presumed to exist until the meeting is adjourned and shall not need to be reestablished. Owners whose voting rights have been suspended pursuant to the Declaration or these Bylaws shall not be counted as eligible votes toward the quorum requirement.
Section 6. Adjournment. Any meeting of the Owners may be adjourned from time to time for periods not exceeding ten (10) days by vote of the Owners holding the majority of the votes represented at such meeting, regardless of whether a quorum is present. Any business which could be transacted properly at the original session of the meeting may be transacted at a reconvened session, and no additional notice of such reconvened session shall be required.
257040-2ł - 3 -
9247-003
BOOK 2413 PAGE 383
Section 7. Proxy. Any member entitled to vote may do so by written proxy duly executed by the member setting forth the meeting at which the proxy is valid. To be valid, a proxy must be signed, dated, and filed with the Secretary prior to the opening of the meeting for which it is to be used. Proxies may be delivered to the Board by personal delivery, U.S. mail or facsimile transmission to any Board member or the property manager. Proxies may be revoked only by written notice delivered to the Secretary, except that: (a) the presence in person by the giver of a proxy at a meeting for which the proxy is given shall automatically invalidate the proxy for that meeting; and (b) a later dated proxy shall automatically be deemed to invalidate any previously given proxy. A proxy holder may not appoint a substitute proxy holder unless expressly authorized to do so in the proxy.
Section 8. Action Taken Without a Mecting. In the Board's discretion, any action that may be taken by the Association members at any annual, regular, or special meeting may be taken without a meeting if the Board delivers a written consent form or written ballot to every member entitled to vote on the matter.
(a) Ballot. A written ballot shall set forth each proposed action and provide an opportunity to vote for or against each proposed action. Approval by written ballot shall be valid only when the number of votes cast by ballot equals or exceeds the quorum required to be present at a meeting authorizing the action, and the number of approvals equals or exceeds the number of votes that would be required to approve the matter at a meeting at which the total number of votes cast was the same as the number of votes cast by
All solicitations for votes by written ballot shall: (I) indicate the number of responses needed to meet the quorum requirements; (2) state the percentage of approvals necessary to approve each matter other than election of directors; and (3) specify the time by which a ballot must be received by the Board in order to be counted. A written ballot may not be revoked. The Association shall maintain such ballots in its file for at least three (3) years.
(b) Written Consent. Approval by written consent shall be valid only when the number of written consents setting forth the actions taken is received and equals or exceeds the requisite majority of the voting power required to pass such action at a meeting held on the date that the last consent is executed and such action is consented to by the Declarant, if required. Executed written consents shall be included in the minutes or filed with the Association's records. If an action of the members is approved by written consent hereunder, the Board shall issue written notice of such approval to all members who did not sign written consents. Membership approval shall be effective ten (10) days after written notice is issued; provided. however, if the consent is to an amendment to the Declaration or Bylaws which must be recorded, the effective date shall be no earlier than the date of recording of such amendment.
Section 9. Order of Business. At all meetings of the Association, Roberts Rules of Order (latest edition) shall govern when not in conflict with the Declaration, these Bylaws or the Articles of Incorporation, unless the Owners present at a particular meeting vote to suspend Robert's Rules at that
Article III
Board of Directors
A. Compositioa aad Selection.
Section 1. Composition and Eligibility. The affairs of the Association shall be govered by a Board of Directors. Except for directors appointed by the Declarant hereunder. the directors shall be
- 4 -
257040-2
9247-003
BOOK 2413 PAGE 384
Owners or spouses or cohabitants of such Owners; provided, however, no Owner and his or her spouse or cohabitant may serve on the Board at the same time, and no co-owners may serve on the Board at the same time. No persons shall be eligible to be elected to or continue to serve on the Board of Directors if they are shown on the books and records of the Association to be more than thirty (30) days delinquent in the payment of any assessment or charge by the Association. Directors shall not be eligible to serve more than three (3) consecutive two (2) year terms without first resigning from the Baard for a time period which shall be the lesser of: (a) one (1) year; or (b) the period of time from the end of one (1) annual meeting of the Association to the beginning of the next annual meeting of the Association.
Section 2. Directors Appointed by the Declarant. Notwithstanding anything to the contrary herein, Declarant shall have exclusive authority to appoint and remove directors and officers until the earlier of: (1) seven (7) years after the recording of the Declaration, (2) unless Declarant at that time has an unexpired option to add Additional Property, the date as of which Units to which eighty percent (80%) of the undivided interests in the Common Elements pertain shall have been conveyed by Declarant to Unit Owners other than a Person constituting the Declarant, or (3) the surrender in writing by Declarant of the authority to appoint and remove officers and directors of the Association.
Section 3. Number of Directors and Term of Office. During the period that the Declarant has the authority to appoint directors, the Board shall consist of one (1) person. After termination of the Declarant's right to appoint directors and officers as described in Section 2 of this Article, the Association shall call a meeting to be held at which Owners shall elect five (5) persons. If such meeting is not the annual meeting, the directors elected shall serve until the next annual meeting. At the first annual meeting after Declarant has surrendered control of the Association, the three (3) of the directors receiving the highest number of votes shall be elected for terms of two (2) years each and two (2) other directors shall be elected for terms of one (1) year each. At each annual meeting thereafter, a successor shall be elected to serve for a term of two (2) years. The members of the Board of Directors shall hold office until their respective successors shall have been elected by the Association.
Section 4. Removal of Members of the Board of Directors. After expiration of Declarant's right to appoint officers and directors of the Association, at any annual or special meeting of the Association duly called, any one (1) or more Board members, except for directors appointed by Declarant hereunder. may be removed with or without cause by a majority of the total eligible Association vote to elect said director and a successor may then and there be elected to fill the vacancy thus created. Further, any director who is more than thirty (30) days past due in the payment of any assessment or charge shall be automatically removed from the Board of Directors, even if the director subsequently pays the amount owed, and the vacancy shall be filled as provided in Section 5 below. Any director who has had three (3) consecutive unexcused absences from regularly scheduled Board meetings may be removed by the vote of a majority of the other directors. Any director whose removal has been proposed shall be given at least ten (10) days notice of the calling of the meeting to consider his or her removal and the purpose thereof and shall be given an
Section S. Vacancies. Vacancies in the Board caused by any reason, except the removal of a director by a majority of the total eligible Association vote or by Declarant, shall be filled by a vote of the majority of the remaining directors. even though less than a quorum, at any meeting of the Board of Directors. The successor so selected shall hold office until the next annual meeting. Notwithstanding anything to the contrary herein, any director who is an officer, director or other designated agent of an entity member and whose position becomes vacant for any reason, may be replaced by the entity who is the Owner unless there has been a transfer of ownership of the Unit, in which case, the vacancy shall be filled by the remaining directors, even if less than a quorum at any meeting of the directors.
- 5 -
9247-003 257040-2
BOOK 2413 PAGE 385ÍŘÍ
Section 6. Compensation. Directors shall not be compensated for services as such unless and only to the extent that compensation is authorized by a majority of the total eligible Association vote. Directors may be reimbursed for the expenses incurred in carrying out their duties as directors upon approval of such expenses by the Board of Directors. Directors also may be given nominal gifts or tokens of appreciation by the Association for recognition of services performed, not to exceed a value of One Hundred and No/100 Dollars ($100.00) per calendar year. For purposes hereof, reasonable, food and beverages purchased for Board meeting shall not be considered compensation.
Section 7. Director Conflicts of Interest. Nothing herein shall prohibit a director from entering into a contract and being compensated for services or supplies furnished to the Association in a capacity other than as director, provided that the director's interest is disclosed to the Board and the contract is approved by a majority of the directors who are at a meeting of the Board of Directors at which a quorum is present, excluding the director with whom the contract is made. The interested director shall not count for purposes of establishing a quorum of the Board. The interested director shall be entitled to be present at any meeting at which the proposed contract is discussed but shall not be entitled to discuss the proposed contract during the discussion. Notwithstanding anything herein, the directors, during the period of Declarant control, shall be authorized on behalf of the Association to enter into contracts with the Declarant and its affiliates as set forth in Paragraph 19(h) of the Declaration.
Section 8. Nomination. Nomination for election to the Board shall be made by a Nominating Committee which shall be appointed by the Board of Directors at least thirty (30) days prior to the annual meeting to serve a term of one (1) year and shall consist of at least one (1) Board member and at least two (2) other members of the Association who are not Board members. The members of the Nominating Committee shall be announced at the annual meeting. The Nominating Committee may nominate any number of qualified individuals, but not less than the number of directors to be elected. The nominations shall be made at least fourteen (14) days prior to the annual meeting. Nominations shall also be allowed from the floor at the meeting. Each candidate shall be given a reasonable opportunity to communicate his or her qualifications to the membership prior to the election. No member shall be nominated for election to the Board, nor permitted to run for election, if more than thirty (30) days past due in the payment of any assessment. Failure to comply with this Section shall in no way invalidate the election of directors who were not nominated in accordance with the provisions hereof.
Section 9. Elections. All members of the Association eligible to vote shall be entitled to cast their entire vote for each directorship to be filled. There shall be no cumulative voting. The directorships for which elections are held shall be filled by that number of candidates receiving the most votes. Voting for election of Board members shall be by written ballot (unless dispensed by unanimous consent at such meeting at which such voting is conducted).
B. Meetings.
Section 1. Regular Meetings. Regular meetings of the Board may be held at such time and place as shall be determined from time to time by the Board, but such meetings shall be held at least once every six (6) months. The newly elected Board shall meet within ten (10) days after each annual meeting of the membership.
Section 2. Special Meetings. Special meetings of the Board may be called by the President on two (2) days notice to each director given by regular first class or electronic mail, in person, by telephone. or by facsimile transmission, which notice shall state the time, place, and purpose of the meeting. Special
- 6
257040-2 BOOK 2413 PAGE 386 9247-003
meetings of the Board shall be called by the President, Vice President, Secretary, or Treasurer in like manner and on like notice on the written request of at least two (2) directors.
Section 3. Waixer of Notice. Any director may, at any time, in writing, waive notice of any meeting of the Board, and such waiver shall be deemed equivalent to the giving of such notice. Attendance by a director at any meeting of the Board shall also constitute a waiver of notice by him or her of the time and place of such meeting. If all directors are present at any Board meeting, no notice shall be required and any business may be transacted at such meeting.
Section 4. Conduct of Meetings. The President shall preside over all meetings of the Board of Directors and the Secretary shall keep a minute book recording therein all resolutions adopted by the Board of Directors and a record of all transactions and proceedings occurring at such meetings. A majority of directors shall constitute a quorum for the transaction of business. One (1) or more directors who participate in a meeting by means of telephone or electronic communication shall be deemed present and in attendance for all purposes at such meeting, provided all persons participating in the meeting can hear each other.
Section 5. Open Meetings. Board meetings need not be open to all members. However, if the Board permits members to attend Board meetings, then members other than directors may not participate in any discussion or deliberation unless expressly so authorized by the Board. Notwithstanding the above, the Board may adjourn a meeting and reconvene in executive session to discuss and vote upon personnel matters, litigation in which the Association is or may become involved, and orders of business of a similar nature. The nature of any and all business to be considered in executive session shall first be announced in open session. The Board may order the removal of any meeting guest who, in the Board's opinion, either disrupts the conduct of business at the meeting or fails to leave the meeting upon request after an announcement of reconvening in executive session.
Section 6. Action Without a Meeting. Any action by the Board required or permitted to be taken at any meeting may be taken without a meeting if a majority of the directors consent to such action in writing, sent via hand delivery, regular first class or electronic mail or facsimile. Such consents must describe the action taken and be signed by no fewer than a majority of the directors and such consents shall be filed with the minutes of the Baard of Directors.
C. Powers and Duties.
Section 1. Powers and Duties. The Board of Directors shall manage the affairs of the Association and shall have all the powers and duties necessary for the administration of the Condominium and may do all such acts and things as are not by the Act, the Declaration, the Articles of Incorporation, or these Bylaws directed to be done and exercised exclusively by the members. In addition to the duties imposed by these Bylaws or by any resolution of the Association that may hereafter be adopted, the Board of Directors shall have the power to and shall be responsible for the following, in the way of explanation, but not limitation:
(a) preparation and adoption of an annual budget, in which there shall be established the contribution of each Owner to the Common Expenses;
making assessments to defray the Common Expenses, establishing the means and methods of collecting such assessments, and establishing the period of the installment payments of the annual assessment;
- 7 -
257040-2 BOOK 2413 PAGE 387 9247-003
(c) providing for the operation, care, upkeep, and maintenance of all of the Area of Common Responsibility as set forth in Paragraph 17 of the Declaration;
(d) designating, hiring, and dismissing the personnel necessary for the operation of the Association and the maintenance, repair, and replacement of the Common Elements, Association property. and the Area of Common Responsibility and, where appropriate, providing for the compensation of such personnel and for the purchase of equipment, supplies, and material to be used by such personnel in the performance of their dutics;
collecting the assessments, depositing the proceeds thereof in a financial depository or institution which it shall approve, or otherwise investing the proceeds in accordance with any limitations set forth in O.C.G.A. § 14-3-302, and using the proceeds to administer the Association;
making and amending rules and regulations and imposing sanctions for violation thereof, including, without limitation, monetary fines:
(g) opening of bank or other financial accounts on behalf of the Association and designating the sigaatories required;
making or contracting for the making of repairs, additions, and improvements to, or alterations of the Common Elements in accordance with the other provisions of the Declaration and these Bylaws, after damage or destruction by fire or other casualty;
(i) enforcing by legal means the provisions of the Declaration, these Bylaws, and the rules and regulations adopted by it, and bringing any proceedings which may be instituted on behalf of or against the Owners concerning the Association;
obtaining and carrying insurance against casualties and liabilities, as provided in the Act and the Declaration, and paying the premium cost thereof;
(k) paying the costs of all services rendered to the Association or its members and not directly chargeable to specific Owners;
(I) keeping books with detailed accounts of the receipts and expenditures affecting the Association and its administration, specifying the maintenance and repair expenses and any other expenses incurred; and
contracting with any Person for the performance of various duties and functions. The Board shall have the power to enter into common management agreements with trusts, condominium associations. or other associations or corporations. Any and all functions of the Association shall be fully transferable by
Section 2. Management. Agent. The Association may, but shall not be required to, hire a professional management agent or agents, at a compensation established by the Board, to perform such duties and services as the Board of Directors shall authorize. The Board shall use reasonable efforts in any management contract to provide for termination of such contract by the Association with or without cause and without penalty, upon no more than thirty (30) days written notice. No management contract shall have a term in excess of one (1) year.
- 8 -
257040-2
9247-003
BOOK 2413 PAGE 388
Section 3. Borrowing. Except as may be set forth in Paragraph 18 of the Declaration, the Board of Directors shall have the power to borrow money for the purpose of maintenance, repair, restoration, or improvement of the Common Elements and facilities, and for other purposes, with the approval of a majority of the total eligible Association vote.
Section 4. Liability and Indemnification of Officers, Directors and Committee Members. The Association shall indemnify every officer, director, and committee member (including directors, officers, and committee members appointed by Declarant during the period of Declarant control) against any and all expenses, including attorney's fees, reasonably incurred by or imposed upon such officer, director or committee member in connection with any action, suit, or other proceeding (including settlement of any such action, suit, or proceeding, if approved by the then Board of Directors) to which he or she may be made a party by reason of being or having been an officer, director or committee member, whether or not such person is an officer, director or committee member at the time such expenses are incurred subject to the limitations below. The officers, directors and committee members shall not be liable for any mistake of judgment, negligent or otherwise, or for injury or damage caused by any such officer, director or committee member in the performance of his or her duties, except for his or her own individual willful misfeasance or malfeasance. The Association, in determining whether to indemnify a director, officer or committee member, shall not impute knowledge to said director, officer or committee member from any source whatsoever; rather, any such determination shall be based on the actual knowledge of the director, officer or committee member. The officers, directors and committee members shall have no personal liability with respect to any contract or other commitment made by them, in good faith, on behalf of the Association (except to the extent that such officers, directors and committee members may also be members of the Association), and the Association shall indemnify and forever hold each such officer, director or committee member free and harmless against any and all liability to others on account of any such contract or commitment. Any right to indemnification provided for herein shall not be exclusive of any other rights to which any officer, director or committee member or former officer or director my be entitled. The Association shall maintain, as a Common Expense, adequate general liability and, if obtainable, officers' and directors' liability insurance to fund this obligation, and the insurance shall be written as provided in the Declaration.
D. Committees.
Section 1. Architectural Control Committee. The Board shall establish an Architectural Control Committee for the purpose of establishing and maintaining architectural standards in the Condominium as provided in the Declaration.
Section 2. Other Committees. There shall be such other committees as the Board shall determine with the powers and duties that the Board shall authorize.
Section 3. Service on Committees. Unless otherwise provided in these Bylaws or in the resolution authorizing a particular committee, the members of any committee shall be appointed by the President and shall serve at the pleasure of the Board of Directors. Any committee member may be removed with or without cause at any time and with or without a successor being named.
- 9-
257040-2 B00K 2413 PAGE 389Śš 9247-003
Article IV
Officers
Section 1. Designation. The principal officers of the Association shall be the President, the Secretary and the Treasurer, all or any of which may be the same person. A Vice President may be elected at the discretion of the Board.
Section 2. Election of Officers. The Association officers shall be elected annually by the Board at the first Board meeting following each annual meeting of the members and shall hold office at the pleasure of the Board and until a successor is elected.
Section 3. Removal of Officers. Upon the affirmative vote of a majority of the members of the Board, any officer may be removed, either with or without cause, and a successor may be elected.
Section 4. Vacancies. A vacancy in any office arising because of death, resignation. removal. or otherwise may be filled by the Board for the unexpired portion of the term.
Section 5. President. The President shall be the chief executive officer of the Association and shall preside at all meetings of the members and of the Board. The President shall have all the general powers and duties which are incident to the office of the president of a corporation organized under the Georgia Nonprofit Corporation Code, including, but not limited to, the power to appoint committees from among the members from time to time as he or she may in his or her discretion decide is appropriate to
Section 6. Vice President. The Vice President, if any, shall act in the President's absence and shall have all powers, duties, and responsibilitics provided for the President when so acting.
Section 7. Seccetary. The Secretary shall keep the minutes of all meetings of the members and of the Board of Directors and shall have charge of such books and papers as the Board of Directors may direct, and shall, in general, perform all duties incident to the office of the secretary of a corporation organized
Section 8. Treasurer. The Treasurer shall have the responsibility for the Association's funds and securities and shall be responsible for keeping full and accurate financial records and books of account showing all receipts and disbursements, for preparing all required financial statements and tax returns, and for the deposit of all monies and other valuable effects in the name of the Association or the managing agent in such depositories as may from time to time be designated by the Board of Directors. The Treasurer shall be responsible for the preparation of the budget as provided in the Declaration. The Treasurer may delegate all or a part of the preparation and notification duties associated with the above responsibilities to a management agent.
Section 9. Other Officers. Other offices may be created by the Board, and the Board members which hold such offices shall have such titles and duties as are defined by the Board.
Section 10. Agreements, Contracts, Deeds, Leases, Etc. All agreements, contracts, deeds, leases, checks, promissory notes, and other instruments of the Association shall be executed by at least two (2) officers or by such other person or persons as may be designated by resolution of the Board of Directors.
- 10 -
257040-2
9247-003 BOOK 24 1 3 PAGE 390
Article V
Rule Making and Enforcement
Section 1. Authority and Enforcement. The Condominium shall be used only for those uses and purposes set out in the Declaration. The Board of Directors shall have the authority to make, modify, repeal and enforce reasonable rules and regulations governing the conduct, use, and enjoyment of Units and the Common Elements; provided, copies of all such rules and regulations shall be furnished to all Owners and Occupants. Any rule or regulation may be repealed by the affirmative vote or written consent of a majority of the total eligible Association vote and the consent of the Declarant so long as the Declarant has the right to appoint and remove directors, at an annual or special meeting of the membership. Every Owner and Occupant shall comply with the Declaration, Bylaws and rules and regulations of the Association, and any lack of compliance thercwith shall entitle the Association and, in an appropriate case, one (1) or more aggrieved Unit Owners, to take action to enforce the terms. of the Declaration, Bylaws or rules and
The Board shall have the power to impose reasonable fines, which shall constitute a lien upon the Owner's Unit, and to suspend an Owner's right to vote or to use the Common Elements for violation of any duty imposed under the Declaration, these Bylaws, or any rules and regulations duly adopted hereunder; provided, however, nothing herein shall authorize the Association or the Board to limit ingress and egress to or from a Unit. In the event that any Occupant of a Unit violates the Declaration. Bylaws. or a rule or regulation and a fine is imposed, notice of such violation shall be sent to the Owner and Occupant, and the fine shall first be assessed against such Occupant; provided, however, if the fine is not paid by the Occupant within the time period set by the Board, the Unit Owner shall pay the fine upon notice from the Association. and the fine shall be an assessment and a lien against the Unit until paid. The failure of the Board to enforce any provision of the Declaration, Bylaws, or any rule or regulation shall not be deemed a waiver of the right
Section 2. Fining and Suspension Procedure. The Board shall not impose a fine, suspend the right to vote or suspend the right to use the Common Elements (provided, however, if an Owner is shown on the books or management accounts of the Association to be more than thirty (30) days delinquent in any payment due the Association, suspension of the right to vote and the right to use the Common Elements shall be automatic; provided further, however, suspension of common utility services shall require compliance with the provisions of Paragraph 10(c)(v) of the Declaration, where applicable), unless and until the Association has sent or delivered written notice to the violator as provided in subsection (a) below. Any such fine or fines may be effective or commence upon the sending of such notice or such later date as may be set forth in such notice, notwithstanding the violator's right to request a hearing before the Board to
Notice. If any provision of the Declaration or Bylaws or any rule or regulation of the Association is violated, the Board shall send the violator written notice identifying the violation and fine(s) being imposed and advising the violator of the right to request a hearing before the Board to contest the violation or fine(s) or to request reconsideration of the fine(s). Fine(s) may be effective or commence upon the sending of such notice or such later date specified in such notice, notwithstanding the violator's right to request a hearing before the Board to challenge the fine. In the event of a continuing violation, each day the violation continues or occurs again constitutes a separate offense, and fines may be imposed on a per diem basis without further notice to the violator.
(b) Hearing. If a written request for hearing is received from the violator within ten (10) days of the date of the violation notice provided above, then the Board shall schedule and hold in executive session
- 11 -
257040-2 9247-003
BOOK 2413 PAGE 391
a hearing affording the violator a reasonable opportunity to be heard. The minutes of the meeting shall contain a written statement of the results of the hearing. The Board may establish rules of conduct for such hearing, which may include limits on time and on the number of participants who may be present at one
Section 3. Additional Enforcement Bights. Notwithstanding anything to the contrary herein contained, the Board may elect to enforce any provision of the Declaration, the Bylaws, or the rules and regulations by self-help (specifically including, but not limited to, towing of vehicles that are in violation of the parking rules and regulations or performing maintenance on any Unit upon a failure by the Unit Owner to so do) or by suit at law or in equity to enjoin any violation or to recover monetary damages or both without the necessity for compliance with the procedure set forth in Section 2 of this Article. In any such action, to the maximum extent permissible, the Owner or Occupant responsible for the violation for which abatement is sought shall pay all costs, including reasonable attorney's fees actually incurred.
The Association or its duly authorized agent shall have the power to enter a Unit or upon any portion of the Common Elements to abate or remove, using such force as may be reasonably necessary, any structure, thing or condition which violates the Declaration, the Bylaws, or the rules and regulations; provided, however, written notice shall be given to the Owner of the Unit at least two (2) days prior to the time that any items of construction are altered or demolished. All costs of self-help, including reasonable attorney's fees, shall be assessed against the violating Unit Owner and shall be collected as provided herein for the collection of assessments.
Article VI
Miscellaneous
Section 1. Notices.
(a) Method of Giving Notice. Unless otherwise prohibited in these Bylaws, all notices, demands, bills, statements, or other communications shall be in writing and shall be given:
personal delivery to the addressee; or
(11) via United States mail, first class, postage prepaid; or
via electronic mail; or
(iv) via facsimile; or
(V) via a secure website, provided that notice shall be deemed given via website only upon proof that the addressee has retrieved the message.
(b) Addressee. Notice sent by one of the methods described in Section 1, Subparagraph (1) shall be deemed to have been duly given:
If to a Unit Owner, at the address, electronic mail address or facsimile number which the Owner has designated in writing and filed with the Secretary, or if no such address has been designated, at the address of the Unit of such Owner;
- 12 -
257040-2
9247-003
BOOK 2413 PAGE 392
(ii) If to an Occupant, to the electronic mail address or facsimile number which the Occupant has designated in writing, or if no such address has been designated, at the address of the Unit occupied; or
If to the Association, the Board or the managing agent, at the postal address, facsimile or electronic mail address of the principal office of the Association or the managing agent, if any, or at such other address as shall be designated in writing and filed with the Secretary.
Section 2. Severability. The invalidity of any part of these Bylaws shall not impair or affect in any manner the validity, enforceability, or effect of the balance of these Bylaws or the Declaration.
Section 3. Captions. The captions herein are inserted only as a matter of convenience and for reference and in no way define, limit, or describe the scope of these Bylaws or the intent of any provision thereof.
Section 4. Gender and Grammar. The use of the masculine gender in these Bylaws shall be deemed to include the feminine gender, and the use of the singular shall be deemed to include the plural whenever the context so requires.
Section 5. Eiscal Year. The fiscal year of the Association may be set by Board resolution, and, in the absence thereof, shall be the calendar year.
Section 6. Einancial Audit. The accounts of the Association shall be audited as a Common Expense by an independent accountant after the close of each fiscal year. Such audited statement shall be made available to the holder, insurer, or guarantor of any first mortgage on a Unit upon submission of a written request and must be available within one hundred twenty (120) days of the Association's fiscal
Section 7. Conflicts. The duties and powers of the Association shall be those set forth in the Georgia Condominium Act, the Georgia Nonprofit Corporation Code, the Declaration, these Bylaws, and the Articles of Incorporation, together with those reasonably implied to affect the purposes of the Association; provided, however, that if there are conflicts or inconsistencies between the Act, the Georgia Nonprofit Corporation Code, the Declaration, these Bylaws, or the Articles of Incorporation, then the provisions of the Act, the Georgia Nonprofit Corporation Code, as may be applicable, the Declaration, the Articles of Incorporation and these Bylaws, in that order, shall prevail, and each Owner of a Unit, by acceptance of a deed or other conveyance therefor, covenants to vote in favor of such amendments as will remove such conflicts or inconsistencies.
Section 8. Amendment. Except where a higher vote is required for action under a particular provision of the Declaration or Bylaws, in which case such higher vote shall be necessary to amend, these Bylaws may be amended by the affirmative vote, written consent, or any combination of affirmative vote and written consent of the members holding two-thirds (2/3) of the total eligible Association vote. As long as Declarant owns any Unit primarily for the purpose of sale, any amendment to the Bylaws shall require the written consent of Declarant. No amendment shall become effective until it is certified by the President and Secretary of the Association and recorded in the Athens-Clarke County Georgia land records. Any amendment duly certified and recorded shall be conclusively presumed to have been duly adopted in accordance with the Declaration and Bylaws. Owners whose voting rights have been suspended pursuant to the Declaration or these Bylaws shall not be counted as eligible votes toward the amendment requirement.
- 13 -
9247-003 257040-2
BOOK 2413 PAGE 393
Any action to challenge the validity of an amendment adopted under this Section must be brought within one (1) year of the amendment's effective date. No action to challenge any such amendment may be brought after such time.
Section 9. Books and Records.
(a) All members of the Association and any holder of a first Mortgage shall be entitled to inspect the following records at a reasonable time and location specified by the Association, upon written request at least five (5) business days before the date on which the member or mortgagee wishes to inspect and copy:
(i) its Articles or restated Articles of Incorporation and all amendments to them currently in effect;
(i¡) its Bylaws or restated Bylaws and all amendments to them currently in effect; resolutions adopted by either its members or Board of Directors increasing or decreasing the number of directors or the classification of directors, or relating to the characteristics, qualifications, rights, limitations, and obligations of members or any class or category of members;
(1V) resolutions adopted by either its members or Board of Directors relating to the characteristics, qualification, rights, limitations, and obligations of members or any class or category of members;
(V) the minutes of all meetings of members and records of all actions approved by the members for the past three (3) years;
(Vi) all written communications to members generally within the past three (3) years, including the financial statements furnished for the past three (3) years;
(vii) a list of the names and business or home addresses of its current directors and officers; and
(viii) its most recent annual report delivered to the Secretary of State.
(b) A member may inspect and copy the following records upon written notice at least five (5) business days before the date on which the member wishes to inspect and copy only if the member's demand is made in good faith and for a proper purpose that is reasonably relevant to the member's legitimate interest as a member; the member describes with reasonable particularity the purpose and the records the member desires to inspect; the records are directly connected with this purpose; and the records are to be used only for the stated purpose:
excerpts from minutes of any Board meeting, records of any action of a committee of the Board while acting in place of the Board on behalf of the Association, minutes of any meeting of the members, and records of action taken by the members or the Board without a meeting, to the extent not subject to inspection under subsection 9(a);
(u) accounting records of the Association; and
- 14 -
257040-2