Covenants
DDC # 001016
FILED IN OFFICE
3/4/2016 PGE185-323 08:28 AM ANGELA OF BK 122 ELDER-JOHNSON CLERK SUPERIOR COURT
OCONEE COUNTY
[SPACE ABOVE RESERVED FOR RECORDING DATA]
Return to: Stacy W. Hanley
Lazega & Johanson, LLC
3520 Piedmont Road, Suite 415
Atlanta, Georgia 30305
STATE OF GEORGIA Reference: Deed Book 402 789 COUNTY OF OCONEE Page: 258 134
AMENDED AND RESTATED DECLARATION OF
PROTECTIVE COVENANTS FOR
FRANKLIN GROVE SUBDIVISION
Prepared by:
Stacy Williams Hanley, Esq.
Lazega & Johanson LLC
3520 Piedmont Road, Suite 415
Atlanta, Georgia 30305
(404) 350-1192
jamiel@ljlawlaw.com
www.Ijlaw.com
Lazega
Johanson
Attorneys at Lau
IMPORTANT NOTICE:
THIS SUBDIVISION IS ALREADY SUBJECT TO THE PROVISIONS OF THE GEORGIA PROPERTY OWNERS'
ASSOCIATION ACT, O.C.G.A. SECTION 44-3-220, ET SEQ. CLOSING ATTORNEYS SHOULD CONTACT THE
ASSOCIATION FOR ESTOPPEL CERTIFICATES REGARDING BOTH ASSESSMENTS/CHARGES DUE ON LOTS
AND ANY UNCURED ARCHITECTURAL VIOLATIONS OR UNAUTHORIZED IMPROVEMENTS ON LOTS.
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Declaration (revised per Board's comments).docx
BK:1320 FG:186 WHEREAS, Protective Covenants for Franklin Grove Subdivision were recorded on May 20, 2005 in Deed Book 4232, Page 252, et seq., Oconee County, Georgia land records, (hereinafter referred to as the " Declaration"); and
WHEREAS, the Original Declaration was amended by that certain First Amendment to Protective Covenants for Franklin Grove Subdivision, which was recorded on June 30, 2006 in Deed Book 876, Page 317 et seq. ("First Amendment, together with the Declaration, are collectively referred to herein as the "Original Declaration"); and
WHEREAS, Section 44-3-226 of the Georgia Property Owners Association Act provides that the Original Declaration may be amended upon the affirmative vote of Owners holding two-thirds (2/3) of the vote of the Franklin Grove Homeowners' Association, Inc. ("Association"); and
WHEREAS, Owners holding at least two-thirds (2/3) of the total Association vote at Franklin Grove desire to amend and restate the Original Declaration and have approved this Amended and Restated Declaration by affirmative vote; and
WHEREAS, these amendments are not material with respect to first mortgagees on Lots in that they do not materially and adversely affect the security title or interest of any first mortgagee and these amendments do not alter, modify, change or rescind any right, title, interest or privilege held by any first mortgage holder on any Lot; provided, however, if a court of competent jurisdiction determines that these amendments do so without such first mortgagee's consent, then these amendments shall not be binding on the first mortgagee so involved, unless it consents hereto; and if such consent is not forthcoming, then the provisions of the Original Declaration prior to these amendments shall control with respect to the affected first mortgagee;
NOW, THEREFORE, the Original Declaration, and all exhibits thereto, and the First Amendment are hereby stricken in their entirety and the following Amended and Restated Declaration are simultaneously substituted therefor.
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BK :1320 PG:187
NAME
The name of the Community is Franklin Grove, which is a residential property owners' development which hereby submits to the Georgia Property Owners' Association Act, O.C.G.A. Section 44 3 220, et seq. (Michie 1982), as may be amended.
2. DEFINITIONS
Unless the context otherwise requires, capitalized terms used in this Declaration, the Bylaws, and the Articles of Incorporation shall be defined as set forth in this Paragraph 2. Otherwise, the terms used in this Declaration, the Bylaws, and the Articles of Incorporation shall have their normal, generally accepted meanings or the meanings given in the Act or the Georgia Nonprofit Corporation Code.
Act means the Georgia Property Owners' Association Act, O.C.G.A.
Section 44 3 220, et seq. (Michie 1982), as may be amended.
B. Architectural Control Committee or ACC mean the committee
established to exercise the architectural review powers set forth herein, which shall be the Board of Directors of the Association unless the Board appoints a separate
Architectural Control Committee.
C. Area of Common Responsibility means the Common Area, together with those areas, if any, which by the terms of this Declaration, any Supplemental
Declaration or other applicable covenants, contract or agreement; become the
responsibility of the Association.
Articles of Incorporation or Articles means the Articles of Incorporation of Franklin Grove Homeowners Association, Inc., filed with the Secretary of State of the State of Georgia.
E. Association means Franklin Grove Homeowners Association, Inc., a Georgia nonprofit corporation, its successors or assigns.
Association Legal Documents means this Declaration and all exhibits hereto, the Bylaws, the Articles of Incorporation, the plats and all rules and regulations and architectural guidelines for the Association, all as may be supplemented or
amended.
G. Board or Board of Directors means the body responsible for
management and operation of the Association.
H. Bylaws mean the Bylaws of Franklin Grove Homeowners Association, Inc.
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BK :1320 PG:188 Common Area means any and all real and personal property and
easements and other interests therein, together with the facilities and improvements located thereon, now or hereafter owned by the Association for the common use and enjoyment of the Owners.
Common Expenses means the expenses incurred or anticipated to be incurred for the general benefit of all Lots, including, but not limited to, those expenses incurred for maintaining, repairing, replacing, and operating the Common Areas.
Community means that real estate which is submitted to the Act and the provisions of this Declaration, as described in Exhibit "A" attached hereto and
Incorporated herein by reference. The Community is a residential property owners' development which hereby submits to the Georgia Property Owners' Association Act, O.C.G.A. Section 44 3 220, et seq. (Michie 1982), as may be amended.
L. Community Wide Standard means the standard of conduct,
maintenance, or other activity generally prevailing in the Community. Such standard may be more specifically determined by the Board of Directors and the Architectural Control Committee.
M. Declaration means this Amended and Restated Declaration of Covenants and Restrictions for Franklin Grove.
N. Director means a member of the Association's Board of Directors.
Domestic Partner means any adult who cohabitates with an Owner, and who has been designated as the Owner's Domestic Partner in a written statement, signed by the Owner and filed with the Association's Secretary. A person shall no longer be a Domestic Partner upon the Secretary's receipt of a written termination notice, signed by either the Owner or the Domestic Partner.
Effective Date means the date that this Declaration is recorded in the Oconee County, Georgia land records.
Eligible Mortgage Holder means a holder of a first Mortgage secured by a Lot who has submitted a request in writing to the Association to be deemed an Eligible Mortgage Holder. Such notice must include the mortgage holder's name and address and the Lot number or address of the property in the Community secured by such mortgage.
Lot means a portion of the Community intended for ownership and use as a single family dwelling site subject to this Declaration, as shown may be on the Plats for the Community recorded in the Oconee County, Georgia land records.
Mortgage means 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.
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BK :1320 PG:189 T. Mortgagee or Mortgage Holder means the holder of any Mortgage.
Neighborhood means a separately developed area within the Property in which the Owners of Lots may have common interests other than those common to all Members of the Association. Neighborhood boundaries may be established and
modified as provided in Article 4.
V. Neighborhood Assessments means Assessments levied against the Lots in a particular Neighborhood or Neighborhoods to fund Neighborhood Expenses as described in Article 6, Section F.
Neighborhood Expenses The actual and estimated expenses incurred or anticipated to be incurred by the Association for the benefit of Owners of Lots within a particular Neighborhood or Neighborhoods, which may include a reasonable reserve for capital repairs and replacements, as the Board may specifically authorize from time to time and as may be authorized herein or in any Supplemental Declaration applicable to such Neighborhood(s).
Occupant means any person staying overnight in a dwelling on a Lot for a total of more than 30 days, either consecutive or nonconsecutive, in any calendar year.
Y. Officer means an individual who is elected by the Board of Directors to serve as President, Vice President, Secretary, or Treasurer or to hold such other office as may be established by the Board of Directors.
Z. Owner means the record title holder of a Lot, but shall not include a
Mortgage Holder. For purposes hereof, the holder of a tax deed on a Lot shall be
deemed the Owner thereof, notwithstanding the fact that there may exist a right of redemption on such Lot.
AA. Person means any individual, corporation, limited liability company, firm, association, partnership, trust, or other legal entity.
BB. Plats mean those plats of the survey relating to the Community filed in the Plat Books of the Oconee County, Georgia land records. All of the Plats of survey are incorporated herein.
CC. Townhome Lot means any plot of land within the Property and a
Neighborhood designated as "Townhome Neighborhood" whether or not improvements are constructed thereon, which constitutes or will constitute, after the construction of improvements, a single dwelling site for a townhome which will be attached by one or more party walls to another townhome. Where the dwelling on a Townhome Lot is attached by a party wall to one or more other dwellings, the boundary between
Townhome Lots shall be a line running along the center of the party wall separating the Townhome Lots.
DD. Violator means any Owner who violates the Association Legal
Documents and any Owner's family member, guest or Occupant who violates such Declaration (revised per Board's comments).docx N:\Clients\Franklin Grove.2107\Documents\Amended and Restated Declaration\2015-12-17-Franklin Grove Amended and Restated
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BK: 1320 FG:190 provisions; provided, however, if an Owner's family member, guest or Occupant violates the Association Legal Documents, the Owner of the relevant Lot also shall be
considered a Violator.
SUBMITTED PROPERTY
The real property in the Community subject to this Declaration and the Act is located in G.M.D. 240, Oconee County, Georgia, being more particularly described in Exhibit "A" attached to this Declaration, and incorporated herein by this reference and as may be shown on the Plats.
4. MEMBERSHIP AND VOTING RIGHTS
A. Membership
The Association shall have one class of membership. Each Lot Owner shall be a member of the Association. This does not include persons who hold an interest merely as security for the performance of an obligation. The giving of a security interest shall not terminate an Owner's membership. No Owner, whether one or more Persons, shall have more than one membership per Lot owned in the Community. An Owner's spouse or Domestic Partner may exercise all membership rights and privileges of the Owner.
B. Voting
The Owner(s) of the Lot shall be entitled to one equally weighted vote for such Lot, which vote may be exercised and suspended as provided in this Declaration and the Bylaws.
c. Neighborhoods Every Lot shall be located within one of three (3) Neighborhoods as set forth herein. The Property consists of three (3) Neighborhoods: (a) the Estate Neighborhood as designated on Exhibit "A-1"; (b) the Townhome Neighborhood as designated on Exhibit "A-2," and (c) the Courtyard Neighborhood as designated on Exhibit "A-3."
The Board of Directors of the Association, in its sole discretion, may determine the Neighborhood Expenses, which will be assessed against the Lots or Townhome Lots within such Neighborhood. Additionally, any Neighborhood may request that the Association provide a higher level of service or special services for the benefit of Lots in such Neighborhood and upon, the affirmative vote, written consent, or a combination thereof, of Owners of a Majority of the Lots or Townhome Lots within the Neighborhood, the Association may, in the Board of Directors' sole discretion, provide the requested services. The cost of such requested services shall be assessed against the Lots or Townhome Lots within such Neighborhood as a Neighborhood Assessment pursuant to Article V hereof
5. ALLOCATION OF LIABILITY FOR COMMON EXPENSES
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BK :1320 PG:191 A. General Allocations
Except as provided below, or elsewhere in the Act or the Association Legal Documents, the amount of all Common Expenses shall be assessed against all the Lots equally.
B. Specific Assessments
Notwithstanding the above, the Board of Directors shall have the power to levy specific assessments pursuant to Section 44 3 225(a) of the Act as, in its discretion, it shall deem appropriate. Failure of the Board to do so shall not be grounds for any action against the Association or the Board and shall not constitute a waiver of the Board's right to do so in the future. Fines levied pursuant to this Declaration and the costs of maintenance performed by the Association for which the Owner is responsible shall be specific assessments. The Board of Directors may also specifically assess Owners for Association expenses as follows: (i) expenses of the Association which benefit less than all of the Lots may be specifically assessed equitably among all of the Lots which are benefitted according to the benefit received; and (ii) expenses of the Association which benefit all Lots, but which do not provide an equal benefit to all Lots, may be assessed equitably among all Lots according to the benefit received.
6. ASSESSMENTS
A. Purpose of Assessment
The Association shall have the power to levy assessments as provided herein, the Bylaws and in the Act. Assessments shall be used for any purpose the Board of Directors determines will benefit the Owners or the Community.
B. Creation of the Lien and Personal Obligation For Assessments
Each Owner of any Lot, 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 all assessments and other charges levied pursuant to this Declaration and the Bylaws.
All assessments and charges levied against a Lot and its Owner, together with interest, costs and reasonable attorneys' fees actually incurred (including postjudgment attorneys' fees, costs and expenses), and rents (if the Board of Directors so elects), in the maximum amounts permitted under the Act, shall be: (i) a charge and a continuing lien against such Lot; and (ii) the personal obligation of the Person who is the Owner of the Lot on the due date of the assessment. 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 of the Lot. The Association, in the Board's discretion, may record a notice of such lien in the Oconee County, Georgia land records evidencing the lien created under the Act and this Declaration. The lien provided for herein shall have priority as provided in the Act.
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BK:1320 PG:192 Assessments shall be paid in such manner and on such dates as determined by the Board of Directors. No Owner may exempt himself or herself from liability, or otherwise withhold payment of assessments, for any reason whatsoever.
C. Delinquent Assessments
All assessments and charges not paid on or before the due date shall be delinquent, and the Owner shall be in default. In addition to the powers set forth below for collection of unpaid assessments and charges, the Association shall be entitled to exercise all other rights and remedies provided by law and in equity to satisfy an Owner's
If any assessment or charge, or any part or installment thereof, is not paid in full within 10 days of the due date, or such later date as may be provided by the Board of Directors:
a late charge equal to the greater of $10.00 or 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;
interest at the rate of 10% per annum, or such higher rate as may be authorized by the Act, shall accrue from the due date;
the Board may accelerate and declare immediately due any unpaid installments of that Owner's assessments and charges. Upon acceleration, the Owner shall lose the privilege of paying such assessments and charges in installments, unless the Board otherwise reinstates such privilege in writing. If the Association has pending legal action against an Owner for unpaid assessments or charges, then no notice shall be required to accelerate unpaid installments of any annual or special assessments that come due during any fiscal year after such legal action commences, until all amounts owed are paid in full or the Board otherwise reinstates such privilege in writing; and
(4) the Association may bring legal action to collect all sums owed under the Declaration and Georgia law.
If assessments or other charges, or any part thereof, remain unpaid more than 30 days after the due date, the Owner's right to vote and to use the Common Areas are suspended automatically until all amounts owed are paid in full or the Board of Directors otherwise reinstates such rights in writing; provided, however, the Board may not deny ingress or egress to or from a Lot. Requiring an Owner to walk across the Common Area to access his/her Lot or suspending an Owner's right to park vehicles on the Common Area shall not constitute a denial of access to a Lot.
If assessments or other charges, or any part thereof, remain unpaid for more than 30 days after the due date, the Association may suspend any utilities or services paid for as a common expense, including, but not limited to, trash. The Owner shall be responsible for all costs associated with the termination and reinstatement of such utilities or services.
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BK :1320 PG:193 If part payment of assessments or other charges is made, the amount received may be applied first to post-judgment attorneys' fees, costs and expenses, then to costs and attorneys' fees not reduced to a judgment, then to interest, then to late charges, then to delinquent assessments and then to current assessments. Late charges may be assessed on delinquencies that are created by the application of current payments to outstanding delinquent assessments or charges.
D. Computation of Operating Budget and Assessment
To establish the annual assessment for a fiscal year, the Board of Directors shall prepare a budget covering the estimated costs of operating the Community, which shall include a reserve contribution as provided below. The Board shall provide the budget to the Owners at least 21 days before the due date of such assessment, or the first installment thereof. The budget and the assessment shall become effective unless, before the due date of such assessment, a majority of the total Association membership votes to disapprove them at a duly called membership meeting.
If the membership disapproves the proposed budget or the Board of Directors fails for any reason to determine a new budget, the budget then in effect shall continue until a new budget is adopted as provided herein. The Board may adopt an adjusted budget at any time during the year following the procedure specified above.
The budget shall not operate as a limitation on expenditures by the Board of Directors. The budget is merely an estimate of Common Expenses on which the Board establishes the annual assessment.
Special Assessments
In addition to all other assessments and charges provided for herein, if, for any reason, including non-payment of any assessments to the Association by the persons liable therefore, the budget adopted by the Board of Directors for any fiscal year shall prove to be inadequate to defray the Annual Expenses for such fiscal year, or if the Board of Directors shall determine that it is in the best interests of the Association to levy a special assessment to pay for the costs of any capital improvements or capital repairs, the Board of Directors shall have the authority to levy a special assessment against the Lots and the Owners thereof to raise such needed funds. Any special assessment levied by the Board of Directors pursuant to the provisions of this Section shall be payable at such times and in such installments as the Board of Directors shall determine. Special assessments shall be levied equally against each Lot.
Neighborhood Assessments
At least 21 days before the due date of any Neighborhood Assessment, the Board shall prepare a budget covering the estimated Neighborhood Expenses for each Neighborhood on whose behalf Neighborhood Expenses are expected to be incurred during the coming year. Any Neighborhood may request that additional service or a higher level of services be provided by the Association and, upon approval of Owners in accordance with Article 4, Section C, any additional costs shall be added to such Neighborhood budget. Such N:\Clients\Franklin Grove.2107\DocumentslAmended and Restated Declaration\2015-12-17-Franklin Grove Amended and Restated Declaration (revised per Board's comments).docx
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BK:1320 FG:194 Neighborhood budget may include a contribution establishing a reserve fund for repair and replacement of capital items maintained as a Neighborhood Expense, if any, within the Neighborhood. Neighborhood Expenses shall be allocated equally among all Lots within the Neighborhood(s) benefited thereby and levied as a Neighborhood Assessment; provided, however, if so specified in a Supplemental Declaration applicable to such Neighborhood or if so directed by a petition by a Majority of the Owners within the Neighborhood, any portion of the Neighborhood Assessment intended for exterior maintenance of structures, insurance on structures, or replacement reserves which pertain to particular structures shall be levied on each of the benefited Lots or Townhome Units in proportion to the benefit received
The Board shall send a copy of the budget and notice of the amount of the Neighborhood Assessment to be levied against each Lot in the Neighborhood for the following year to be delivered to each Owner in the Neighborhood at least 21 days prior to the due date of such assessment. Such Neighborhood budget and Neighborhood Assessment shall become effective unless disapproved by Owners of a Majority of the Owners of the Lots in the Neighborhood to which the Neighborhood Assessment applies. There shall be no obligation to call a meeting for the purpose of considering the budget except on petition of Owners of at least twenty (20%) of the Lots in such Neighborhood. This right to disapprove shall apply only to those Neighborhood expenses in the Neighborhood budget which are attributable to services requested by the Neighborhood. If a meeting is properly requested by the required number of Neighborhood Owners, only the requested Neighborhood expenses shall not become effective until after such meeting is held; provided such portion of the Neighborhood Assessment attributable to such requested Neighborhood expenses shall be retroactive to the original effective date of the Neighborhood budget if the Neighborhood budget is not disapproved at such meeting.
If the Owners within any Neighborhood disapprove any requested Neighborhood expense in the proposal of a Neighborhood budget, the Association shall not be obligated to provide the requested service anticipated to be funded by such Neighborhood expense in the Neighborhood budget. If the Board fails for any reason to determine a Neighborhood budget for any year, then until such time as a Neighborhood budget is determined, the Neighborhood budget in effect for the immediately preceding year shall continue for the current year.
All amounts the Association collects as a Neighborhood Assessment shall be expended solely for the benefit of the Neighborhood for which they were collected and shall be accounted separately from the Association's general funds.
G. Capital Budget and Contribution
The Board of Directors may every three (3) years, hire an engineer to perform a reserve study on the Association's capital improvements. On an annual basis, the Board may review the current reserve study and compare the requirements of said study to the amount of funds in the Association's capital account. The Board shall prepare an annual capital reserve budget and shall establish an annual capital reserve fund contribution based on such budget and in an amount that will permit the Association to meet the projected capital needs. Capital reserve budgets should take into account the Declaration (revised per Board's comments).docx N:\Clients\Franklin Grove.2107\Documents\Amended and Restated Declaration\2015-12-17-Franklin Grove Amended and Restated
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BK: 1320 PG:195 number and nature of replaceable assets, the expected life of each asset, and the expected repair or replacement cost of each asset. The amount of the capital contribution shall be fixed on an annual basis and shall be included in the annual budget and assessment.
H. Capital Contribution Assessment Upon Transfer of Lots
In addition to all other assessments and charges provided for herein, upon any conveyance or transfer of a Lot, other than to the spouse or heir of the Owner, the purchaser or grantee thereof shall be assessed and be subject to a non-refundable, nonprorated capital contribution assessment (*Capital Contribution Assessment").
The Capital Contribution Assessment shall be an amount equal to three (3) months of monthly assessments applicable to such Lot at the time of such conveyance or transfer.
The Capital Contribution Assessment shall not constitute an advance payment of the annual assessment. The Capital Contribution Assessment shall constitute a specific special assessment against such Lot, a continuing lien against such Lot, and a personal obligation of the Owner of such Lot.
Foreclosure Administration Fee
It is recognized that foreclosures of mortgages on Lots create substantial administrative and other burdens on the Association. These additional burdens on the Association include, but are not limited to, having to monitor the status of mortgages and legal periodicals to determine when foreclosures occur, searching the Oconee County, Georgia land records to determine the names of the purchasers at foreclosure sales, contacting the foreclosure purchasers/owners regarding foreclosure-purchaser responsibilities and assessment obligations and updating Association records multiple times to deal with just a single Lot. Pursuant to this Declaration and Section 44-3-225(a) of the Act, the Association is authorized to assess individual Owners certain fees and expenses occasioned by and benefiting just those Owners or those Owners' Lots. In accordance with these provisions, and in addition to annual assessments, special assessments, and other charges provided for in this Declaration, any Person who acquires a Lot at a foreclose sale of the mortgage on such Lot, or by deed in lieu of a foreclosure, will be required to pay the Association a Foreclosure Administration Fee of at least $750.00 or such higher amount as may be determined by resolution of the Board of Directors, at the time the foreclosure deed or deed in lieu of foreclosure is recorded in the Oconee County, Georgia records. The Foreclosure Administration Fee shall constitute a specific assessment as described in this Declaration.
J. Statement of Account
Any Owner, Mortgagee, or a Person having executed a contract for the purchase of a Lot, or a lender considering a loan to be secured by a Lot, shall be entitled, upon written request, to a statement from the Association setting forth the amount of assessments and charges due and unpaid, including but not limited to any late charges, Declaration (revised per Board's comments).docx N:\Clients\Franklin Grove.2107\Documents\Amended and Restated Declaration \2015-12-17-Franklin Grove Amended and Restated
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BK :1320 PG:196 interest, fines, attorneys' fees or other charges against such Lot. The Association shall respond in writing within five business days of receipt of the request for a statement; provided, however, the Association may require the payment of a fee, not to exceed $10.00, 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 Lot as of the date specified therein, if such statement is reasonably relied upon in connection with the issuance of any Mortgage on such Lot.
K. Surplus Funds and Common Profits
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, be: (1) distributed to the Owners; (2) credited to the next assessment chargeable to the Owners; or (3) added to the Association's capital reserve account.
7. MAINTENANCE RESPONSIBILITY
A. Association's Responsibility
Section 1. Association's Responsibility. The Association shall maintain and keep in good repair the Area of Common Responsibility described in this Section, and in the manner set forth herein. All such maintenance shall be performed consistent with the Community-Wide-Standard.
(a) Common Area to be maintained by the Association.
(i) all private streets, alleyways and paved areas on the Property except for driveways located on Lots;
any street trees, all landscaping and other flora, parks, sidewalks, lakes, structures, and improvements, including tennis courts, bike and pedestrian pathways situated upon the Common Area, if any;
in the Board's discretion, other landscaping within public rights of way within or abutting the Property, and landscaping and other flora within any public utility easement within the Property (subject to the terms of any easement agreement relating thereto);
all entry features, entry gates and any landscaping associated therewith, regardless of whether such entry features and landscaping are located on a Lot, Common Area or public right-of-way and any irrigation system and lighting system, if any, provided to said entry features and related landscaping;
(V) all furnishings, equipment and other personal property of the
Association; and
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BK :1320 PG:197 all ponds, streams and/or wetlands located within the Property which serve as part of the drainage and storm water retention system for the Property, whether or not such pond, stream and/or wetland is located on Common Area or a Lot. Such maintenance shall include any retaining walls, bulkheads or dams (earthen or otherwise) retaining water therein, and any fountains, lighting, pumps, conduits, and similar equipment installed therein or used in connection therewith (to the extent not maintained by any governmental entity).
Water and Sewer Pipes. All water and sewer pipes or facilities that are located on the Common Property or that serve more than one (1) Lot to the extent that such pipes and facilities are not maintained by the Owner as set forth below or by any public, private or municipal utility companies.
Maintenance of Townhome Lots to be Assessed against All Townhome Lots Equally. The following portions of dwellings constructed on Townhome Lots shall be maintained and repaired by the Association, and the cost of such maintenance and repair shall be assessed against all Townhome Lots equally and will be paid from the Townhome Neighborhood Assessments:
(i> All landscaping and grassy areas located on a Lot, but not located within an enclosed or fenced-in area;
(il) all roof surfaces above the roof truss system including the root decking, any felt or underlayment shingles, and all flashing, gutters anc downspouts;
(iii) all material constituting the finished exterior building surface, including the brick, stone, siding or stucco as applicable (but specifically excluding any surface or items assigned as a maintenance responsibility of Owners pursuant to Article VI, 2 hereof;
(iV) all exterior soffits and fascia;
(V) all exterior portions of any headers over windows and doors;
(vi) all shutters;
Maintenance of Townhome Lots to be Specifically Assessed Against Benefited Townhome Lots. The Association shall maintain and repair the following portions of dwellings constructed on Townhome Lots, and the expense for such maintenance and repair shall be specifically assessed to the Lots) benefited thereby in accordance with Article 5, Section A of this Declaration, and may be collected in the same manner as provided herein for collection of Assessments:
(i) all chimneys, chimney caps and flashing;
(il) all front stoops, front steps and any handrails therefor;
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BK 1320 PG:198 all privacy partitions between adjoining units, including walls between adjoining Lots; except that the Association shall not be required to maintain or repair any locking mechanism on such enclosures; (iv) all driveways and walkways serving the dwelling on a Lot;
Additional Maintenance. Upon resolution of the Board, the Association may assume responsibility for providing additional exterior maintenance upon a Lot. Association may, as a Common Expense, maintain other property and improvements which it does not own, including, but not limited to, property dedicated to the public, or provide maintenance or services related to such property over and above the level being provided by the property owner, if the Board of Directors determines that such maintenance is necessary or desirable to maintain the Community-Wide Standard. For example, the Association may maintain any fence, wall, entry feature or sign serving to enhance or designate the entry into Franklin Grove, regardless of whether such improvements are not located within the Common Area or the Property.
Relief of Maintenance Responsibilities. The Association may be relieved of all or any portion of its maintenance responsibilities herein to the extent that (a) such maintenance responsibility is otherwise assumed by or assigned to an Owner, or (b) such property is dedicated to any other local, state or federal governmental or quasigovernmental entity; provided, however, that in connection with such assumption, assignment or dedication, the Association may reserve or assume the right or obligation to continue to perform all or any portion of its maintenance responsibilities, if the Board determines that such maintenance is necessary or desirable to maintain the CommunityWide Standard.
(g) Incidental Repairs. It, during the course of pertorming its maintenance responsibilities hereunder, the Board discovers that maintenance, repair or replacement is required of an item which is the Owner's responsibility, and such maintenance, repair or replacement must be performed for the Association to properly complete its maintenance project, then the Association may perform such work on behalf of the Owner and at the Owner's sole expense, without prior notice to the Owner, such being deemed an emergency situation hereunder.
(h) Willful Neglect of Owner. If the Board of Directors determines that the need for maintenance or repair, which is the responsibility of the Association, is caused through the willful or negligent act of any Owner or Occupant or his or her family, guests, tenants, or invitees, then the Association may charge the cost of any such maintenance, repair, or replacement as a specific special assessment against the Owner's or Occupant's Lot and the Owner thereof.
Limitation of Liability. The Association shall not be liable for injury or damage to person or property caused by the elements or by the Owner of any Lot, or any other person, or resulting from any utility, rain, snow or ice which may leak or flow from any portion of the Area of Common Responsibility or from any pipe, drain, conduit, appliance or equipment which the Association is responsible to maintain hereunder, N:\Clients\Franklin Grove.2107\Documents\Amended and Restated Declaration\2015-12-17-Franklin Grove Amended and Restated Declaration (revised per Board's comments).docx
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BK :1320 PG:199 unless such injury or damage results directly and solely from the negligence or gross negligence of the Association. 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 under this Article 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.
B. Owner's Responsibility.
Section 1. Estate Homes Lots and Courtyard Homes Lots. Each Owner shall maintain his or her Lot and all structures, parking areas, and other improvements comprising the Lot, as well as any right-of-way area located between such Lot and any immediately adjacent street, in a manner consistent with the Community-Wide Standard and all applicable covenants, unless such maintenance responsibility is otherwise assumed by or assigned to the Association. With respect to any Lot owned by any Person other than Declarant or Townhome Lot Builder upon which a dwelling has not yet been constructed, such maintenance responsibility shall include, but is not limited to, the removal of all litter and trash and lawn mowing on a regular basis.
Section 2. Townhome Lots: Except as provided in Article 7, Section A(1) hereof, all maintenance and repair of the Townhome Lot and all structures, landscaping and other improvements situated thereon shall be the responsibility of the Owner thereof. Specifically, each Owner will be responsible for maintaining and keeping in good repair the following:
(a) all doors, including screen and storm doors, hinges, glass, frames and door frames and hardware which are part of the entry system;
(b) exterior surface of the garage doors, garage door frames and operation of the garage doors;
(c) exterior hose bibs;
(d) exterior lighting and lighting fixtures;
(e) window screens, window frames, sills and glass;
foundations and footings, including the exterior façade of the foundation and footing and including the waterproofing of the foundation, whether located above or below grade;
except otherwise specifically provided herein, any pipe, wire, line and conduit which serves only one (1) Unit, regardless of whether such pipe, wire, line or conduit is N:\Clients\Franklin Grove.2107\Documents\Amended and Restated Declaration\2015-12-17-Franklin Grove Amended and Restated Declaration (revised per Board's comments).docx
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BK :1320 PG:200 located within or outside of the Lot;
(h) the enclosed space of any patio, including any concrete, stone, or other paved surface, any privacy partitions, and all plantings or landscape of any kind therein.
Section 3. Owner's Maintenance of Common Area Not Permitted. Subject to the maintenance responsibilities herein provided, any maintenance or repair performed on or to the Common Area by an Owner or Occupant which is the responsibility of the Association hereunder (including, but not limited to landscaping of the Common Area) shall be prohibited; provided, however, if an Owner or Occupant should perform such maintenance, it 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.
Section 4. Failure to Maintain. If the Board of Directors determines that any Owner has failed or refused to discharge properly his or her maintenance, repair or replacement obligations pursuant to this Article, then the Association may give the Owner written notice of: (1) the Owner's failure or refusal; (2) the Association's right to provide necessary maintenance, repair, or replacement at the Owner's sole cost and expense; and (3) the maintenance, repair, or replacement deemed necessary by the Board.
Unless the Board determines that an emergency exists or a violation is re-occurring for which notice previously has been issued hereunder, the Owner shall have 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 10 days. If the Board determines that an emergency exists, a violation is re-occurring for which notice has been previously issued hereunder or an Owner has not complied with the demand given by the Association hereunder, the Association may provide any such maintenance, repair or replacement, the costs of which shall be a specific special assessment against the Owner and the Lot.
Section 5. Standard of Performance. Unless otherwise specifically provided herein or in other instruments creating and assigning such maintenance responsibility, responsibility for maintenance shall include responsibility for repair and replacement, as necessary. All maintenance shall be performed in a manner consistent with the Community-Wide Standard and all applicable covenants. The Association, and/or an Owner shall not be liable for any damage or injury occurring on, or arising out of the condition of, property which it does not own except to the extent that it has been negligent in the performance of its maintenance responsibilities hereunder.
Section 6. Maintenance Standards and Interpretation. The maintenance standards and the enforcement thereof and the interpretation of maintenance obligations under this Declaration may vary as the composition of the Board changes. These variances shall not constitute a waiver by the Board of the right to adopt and enforce maintenance standards under this Article VI. No decision or interpretation by the Board shall constitute a binding precedent with respect to subsequent decisions or interpretations of the Board.
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BK : 1320 PG:201 Failure to Maintain.
If the Board of Directors determines that any Owner has failed or refused to discharge properly his or her maintenance, repair or replacement obligations pursuant to this Paragraph, then the Association shall give the Owner written notice of: (1) the Owner's failure or refusal; (2) the Association's right to provide necessary maintenance, repair, or replacement at the Owner's sole cost and expense; and (3) the maintenance, repair, or replacement deemed necessary by the Board.
Unless the Board determines that an emergency exists or a violation is reoccurring for which notice previously has been issued hereunder, the Owner shall have 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 10 days. If the Board determines that an emergency exists, a violation is reoccurring for which notice has been previously issued hereunder or an Owner has not complied with the demand given by the Association hereunder, the Association may provide any such maintenance, repair or replacement, the costs of which shall be a specific special assessment against the Owner and the Lot.
D. Maintenance Standards and Interpretation
The Board of Directors may establish, interpret and enforce maintenance standards for the Community. These standards may vary over time, however, the variances shall not constitute a waiver by the Board of the right to establish and enforce maintenance standards under this Paragraph. No Board decision or interpretation regarding maintenance standards shall constitute a binding precedent with respect to subsequent Board decisions or interpretations.
8. ARCHITECTURAL CONTROLS
A. Architectural Control Committee
The Architectural Control Committee ("ACC") shall constitute a standing committee of the Association. The ACC shall consist of the Board of Directors unless the Board of Directors delegates to other Persons the authority to serve on the ACC.
Limitation on Exterior Modifications
Except as otherwise provided herein, no Owner, Occupant, or any other person may, without written approval of the Board or ACC:
(1) Construct or deconstruct any dwelling or other improvement on a Lot; (2) make any change or alteration that affects the exterior appearance of the Lot or Easement Area; or
(3) erect, place or post any object or thing on the Lot, Common Area or Easement Area that affects the exterior appearance of the Lot, Common Area or Easement Area.
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BK :1320 PG:202 Additionally, no modification shall encroach onto the Common Area unless expressly approved in writing by the Board.
This Article 8 shall not apply to the initial construction of Lots C5, C6, C7, C8, C9, C10, C11, C12, C27, C28, C29, C30, C31, C32, C33, C34 and C35, as shown on the plat for Franklin Grove Subdivision, Phase II, recorded in Plat Book 36, page 3-14, in the office of the Clerk of the Superior Court of Oconee County, Georgia, so long as the exterior façade of the Townhouse is consistent with the facades of the existing townhouse located at 1401, 1540, 1453, 1470, 1471, 1502, 1511 and 1536 Lincoln Drive in the Franklin Grove Subdivision.
c. Standards and Interpretation
The Board of Directors may establish, amend and publish written Design Standards and/or Community-Wide Standards for modifications that affect the exterior appearance of Lots. These standards may vary for different parts of the Community, based on street visibility and the location of the proposed modification or Lot. Any standards established by the Board hereunder may be amended or vetoed by a majority of the total Association vote. No Board decision or interpretation regarding such standards shall constitute a binding precedent with respect to subsequent Board decisions or interpretations.
D. Application Process and Review
The Board of Directors may establish procedures, forms, conditions and requirements for the submission of applications for modifications to the exterior appearance of a Lot. Such applications shall be in writing and, unless otherwise provided by the Board, submitted to the ACC. If the application requests any variance from provisions of this Declaration or published Design Standards or Community-Wide Standards related to the exterior appearance of the Lot, the Owner must expressly identify such variance in the application. No approval issued hereunder shall authorize such a variance unless that variance is expressly identified in the application and specifically approved in writing by the Board or ACC.
Except as may otherwise be determined by the Board, the ACC or its designated representative shall be the sole arbiter of such application.
The standard for approval of such modifications shall include, but not be limited to: (1) aesthetic consideration; (2) materials to be used; (3) compliance with the Community-Wide Standards or design standards which may be established by the Board; (4) harmony with the external design of the existing dwellings, Lots and structures, and the location in relation to surrounding structures and topography; and (5) any other matter deemed to be relevant or appropriate by the Board or ACC. The Board or ACC shall approve any request that it determines, in its reasonable discretion, to be in substantial compliance with such standard for approval.
Ruling on Application
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BK :1320 PG:203 If the Board or ACC fails to approve or to disapprove such application within 40 days after the application and all required information have been submitted, the Owner submitting the application may issue written notice, via certified mail, to the Association President, informing the President of the Owner's intent to proceed with the modification as identified in the application. Unless the Association issues a written disapproval of the application within 10 days of receipt of the Owner's notice, the approval will not be required and this subparagraph will be deemed complied with as to the items specifically identified in the application. However, even if the requirements of this subparagraph are satisfied, nothing herein shall authorize anyone to construct or maintain any modification that is otherwise in violation of the Association Legal Documents, or of any applicable zoning or other laws. Except as provided in this subparagraph, no approval of a modification shall be valid unless issued in writing. Owners may not rely on any verbal approval or statements from any person as the approval required for a modification.
Appeal
If the ACC does not consist of the Board of Directors, and the ACC disapproves any application or part thereof, an Owner may, in writing, appeal the ACC's decision to the Board. The notice of appeal must be sent to the Board by certified mail and received by the Board within 14 days from the date of the ACC's disapproval notice, or the decision of the ACC shall become final and all rights of appeal shall terminate. Within 45 days of receipt of a timely appeal, the Board shall approve, disapprove, or conditionally approve the Owner's application, and such ruling shall be final and binding on the Owner.
G. Commencement and Completion of Construction
All modifications approved hereunder must be commenced within six months from the date of approval, or such approval shall be deemed revoked, unless the Board or ACC gives a written extension for commencing the work. All work approved hereunder shall be completed in its entirety within six months from the date of commencement, unless otherwise agreed in writing by the Board or ACC.
H. Professional Consultants and Fees
The Board of Directors shall be authorized to charge, as a specific special assessment, against any Owner and Lot: (1) a reasonable administrative fee for review of modifications on, or submitted plans for, such Lot; and (2) reasonable fees for any architect, engineer or other professional consultant engaged by the Board to assist with review of modifications on, or submitted plans for, such Lot. Any professional consultants fees shall constitute specific assessments as described in this Declaration. If the Board determines that it is necessary to consult an architect, engineer or other professional consultant to review any proposed modifications, the Board will notify the Owner in advance before incurring any charges. The Owner shall then have the opportunity to proceed and agree to the charges, withdraw the proposal or consider alternative solutions.
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BK: 1320 PG:204 L. Limitation of Liability
The Association, Board of Directors, ACC, and members thereof, are not responsible for ensuring, and shall not be held liable for any injury, damage or loss arising out of: (1) the quality, structural integrity or soundness of any modification on a Lot; or (2) any modification's compliance with building codes, zoning regulations or other governmental requirements.
9. USE RESTRICTIONS
Each Owner shall be responsible for ensuring that the Owner's family, guests, tenants and Occupants comply with all provisions of the Association Legal Documents. In addition to the following use restrictions, the Board of Directors may establish rules and regulations in accordance with the terms hereof and as specified in the Bylaws.
A. Residential Use
Each Lot shall be used for residential purposes only, and no trade or business of any kind may be conducted in or from a Lot or any portion of the Community, except that the Owner or Occupant residing in a dwelling on a Lot may conduct ancillary business activities within the dwelling so long as:
(1) the existence or operation of the business activity is not apparent or detectable by sight, sound, or smell from outside of the dwelling;
(2) the business activity does not involve visitation or deliveries to the Lot by employees, clients, customers, suppliers, couriers, mail carriers, or other business invitees in greater volume than would normally be expected for a Lot without business activity;
(3) the business activity does not involve use of the Common Area, except for necessary access to and from the Lot by permitted business invitees;
(4) the business activity is legal and conforms to all zoning requirements for the Community;
(5) the business activity does not increase any insurance premium paid by the Association or otherwise negatively affect the Association's ability to obtain insurance coverage; and
(G) the business activity is consistent with the residential character of the Community and does not constitute a nuisance or a hazardous or offensive use, or threaten the security or safety of other Owners or Occupants, as determined in Board of Director's discretion.
The Association has no liability for any business activity in the Community. The Association also has no liability for any action or omission by it, its Directors, Officers, agents, representatives and/or vendors, that may adversely impact an Owner's or N:\Clients\Franklin Grove.2107\Documents\Amended and Restated Declaration\2015-12-17-Franklin Grove Amended and Restated Declaration (revised per Board's comments).docx
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BK :1320 PG:205 Occupant's business activity. Each Owner and Occupant hereby releases and holds harmless the Association, its Directors, Officers, agents, representatives and/or vendors, for any interruption or suspension of, or any damages to, any business activities conducted on a Lot. Owners and Occupants shall obtain whatever supplemental insurance may be necessary to protect their business assets, business continuity and business interests on their Lots. The Association is not obligated to obtain any insurance coverage for any Owner's or Occupant's business activity.
The term "business," as used in this provision, shall include, without limitation, any occupation, work or activity that involves the provision of goods or services to persons other than the provider's family for a fee, compensation, or other form of consideration, regardless of whether: (i) such activity is engaged in full or part time; (ii) such activity is intended to or does generate a profit; or (iii) a license is required therefore.
B. Dwelling Size
All one (1) story Townhome dwelling units must contain a minimum of one thousand six hundred (1,600) square feet of heated space and all two (2) story dwelling units must contain a minimum of One thousand six hundred (1,600) square feet of heated interior space.
All one (1) story dwellings located on an Estate Lot must contain a minimum of two thousand two hundred (2,200) square feet of heated interior space and all two (2) story dwellings located on an Estate Lot must contain a minimum of two thousand five hundred (2,500) square feet of heated interior space. All Dwelling located on an Estate Lot shall have a minimum of forty (40) percent of the front elevation consisting of a covered front porch.
All dwellings located on a Courtyard Lot must contain a minimum of one thousand six hundred (1,600) square feet of heated space.
C. Dwelling Materials
Each residence and other structures shall be constructed of only material, and in colors approved in writing by the Architectural Control Committee with the exterior of the residences being brick, rock or hardy plank siding or combination thereof, with wood accents. No vinyl siding shall be used in the development.
D. Number of Occupants
No more than two Occupants per bedroom are permitted in the dwelling, as such bedrooms are depicted on the plans for such dwelling approved by the applicable governmental agency. This occupancy restriction shall not apply to require the removal of any person lawfully occupying a dwelling on the Effective Date hereof. Upon written application, the Board of Directors shall grant variances to this restriction to comply with provisions of the Fair Housing Amendments Act of 1988.
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BK: 1320 PG:206 If an Owner is a corporation, limited liability company, partnership, trust or other legal entity not being a natural person, the Owner shall designate in writing to the Board the name(s) of the person(s) who will occupy the dwelling on the Lot. The designated person(s) to occupy the dwelling may not be changed more frequently than once every 12 months without the Board's written consent.
E. Subdivision of Lots. No Lot may be subdivided into a smaller Lot without the prior written approval of the Board of Directors.
Use of Common Area
There shall be no obstruction of the Common Area, nor shall anything be kept, parked or stored on or removed from any part of the Common Area without the express written consent of the Board of Directors. The Association may remove and either discard or store any unauthorized personal property left or kept on the Common Area and the Association shall have no obligation to return, replace or reimburse the owner for such property. The Association is not liable to any Person for any loss of, theft of, or damage to any personal property.
The Board may allow an Owner or Occupant to temporarily reserve portions of the Common Area. Such Owner or Occupant, on behalf of himself or herself and his or her guests and family, assumes all risks associated with such use of the Common Area and all liability for any damage or injury to any person or property as a result of such use. The Association shall not be liable for any damage or injury resulting from such use.
G. Prohibition of Damage and Illegal Conduct
Without prior written consent of the Board of Directors, nothing shall be done or kept in the Community which would increase the Common Expenses, including the insurance rate of the Association, damage the Common Area, or be in violation of any statute, rule, ordinance, regulation, permit or other validly imposed requirements of any governmental body. Noxious, destructive, offensive, hazardous, or unsanitary activity shall not be carried on in the Community, as such activity or conduct may be further defined in the Association's rules and regulations. No Owner or Occupant may use or allow the use of a Lot or the Common Elements in any manner 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 discretion of the Board of Directors, a nuisance.
The intention of this provision is to grant the Association and aggrieved Owners and Occupants a right of redress for actions, activities or conduct which unreasonably disturbs or impairs the peaceful and safe enjoyment of the community. Specific unauthorized and unreasonable annoyances or disturbances shall include, but not be limited to, the following:
Any threatening or intimidating conduct towards any other Owner, Occupant, guest, invitee or pet;
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BK :1320 PG:207 Any conduct which, in the Board's reasonable discretion, creates any danger or risk of injury to others or damage to property or which creates any threat to health or safety of any other Owner, Occupant, guest, invitee or pet;
Any conduct which creates any noxious or offensive odor either outside of a Lot at any time or within a home if such odors can be detected in the normal course of activities in any other Lots);
(4) Any incessant or excessive pet noises, including dog barking or threatening behavior by a pet, if such conduct can be heard and/or seen in the normal course of activities in any other Lot;
(5) Any construction or similar activities in a home that can be heard in other Lots between the hours of 10:00 p.m. and 7:00 a.m.; or
Any similar action or activity outside of a home, or which occurs inside a home but which interferes with the peaceful use and enjoyment of other Lots or the Common Areas by any other Owner, members of his or her family, guests, invitees, or Occupants of his or her Lot.
However, nothing herein shall be construed to affect the rights of an aggrieved Owner or Occupant to proceed individually against a violator hereof for relief from interference with his or her property or personal rights, and the Board may, in its reasonable discretion, require aggrieved individuals to seek redress personally for interference with their personal property rights before the Association intervenes and commences enforcement action hereunder. No claim for any loss, damage or otherwise shall exist by an aggrieved Owner or Occupant against the Association for failure to enforce the provisions hereof if the aggrieved Owner or Occupant has not personally pursued all available remedies against the violator for redress provided under Georgia
No Unit Owner or Occupant may use or allow the use of the Lot or the Common Areas in a manner which creates noises between the hours of 10:00 p.m. and 7:30 a.m. which can be heard by persons in another Lot that will, in the Board's sole reasonable discretion, unreasonably interfere with the rights, comfort or convenience of any other Owner, members of his or her family, guests, invitees, or Occupants of his or her home.
H. Firearms
The discharge of firearms on the Common Areas is prohibited, except: (1) by law enforcement officers; and (2) to transport lawful firearms across the Common Areas to or from a Lot. The term "firearms" includes "BB" guns, pellet guns, and other firearms of all types.'
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BK :1320 PG:208 Pets
No livestock or poultry of any kind shall be raised or kept as pets, or bred on any portion of the Community. A reasonable number of dogs, cats and generally recognized household pets may be kept on a Lot provided they are not bred or maintained for commercial purposes. Owners are required to follow the leash laws of Oconee County and must pick up and dispose of any waste left by pets on other Owners' Lots and on the Common Areas. Pets may not be left unattended outdoors. No structure for the care, housing or confinement of any pet shall be constructed or maintained on any part of the Lots, Common Areas, including the Easement Area, without prior written ACC approval. Dogs must be under the control of a responsible person at all times while outdoors. No dog runs are permitted on a Lot. No structure or kennel which has the capacity to hold an unreasonable number of animals are permitted on any Lot.
No animals that the Board determines in its sole discretion to be dangerous may be brought onto or kept in the Community. If the Board determines that an Owner's or Occupant's pet endangers any person or other pet or creates a nuisance or unreasonable disturbance in the Community, the Board may require that the pet be permanently removed from the Community upon seven days' written notice to such Owner or Occupant. If the Owner or Occupant fails to comply with such notice, the Board may assess fines, remove the pet and/or obtain a court order requiring the Owner or Occupant to do so. Possible conditions for determining whether a pet presents a danger include, but are not limited to, pets that have exhibited signs of not being properly controlled by its owner, a pet that menaces, chases or otherwise displays threatening or aggressive behavior, which threatens or endangers the safety of any person or other pet, a pet that causes physical injury, or one that kills or causes death to any other domestic animal or to any person.
Any Owner or Occupant who keeps or maintains any pet in the Community agrees to indemnify and hereby holds harmless the Association, its Directors, Officers, and agents, from any loss, damage, claim or liability of any kind or character whatsoever related to such pet. The Board may establish additional rules regarding pets, including, but not limited to, rules regarding the types and number of pets that may be kept in the Community.
Parking and Assigned Parking Spots
Vehicles may not be parked on any grass or landscaped areas on the Common Areas. Vehicles only may be parked in the garage serving the Lot, driveways on Lots, designated parking spaces, or other areas authorized in writing by the Board. The term "vehicles," as used herein, shall include, without limitation, motor homes, boats, trailers, motorcycles, mini bikes, scooters, go-carts, golf carts, trucks, campers, buses, vans and automobiles. Garage doors, it any, should be kept closed at all times, except during times of ingress and egress from the garage.
Disabled vehicles (being vehicles that do not have a current license tag when required or are obviously inoperable), boats, jet-skis, trailers, buses, taxis, hearses, N:\Clients\Franklin Grove.2107\DocumentsAmended and Restated Declaration\2015-12-17-Franklin Grove Amended and Restated Declaration (revised per Board's comments).docx
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BK :1320 PG:209 limousines, recreational vehicles, motor homes, campers, panel trucks, trucks with a cargo-load capacity of one ton or more, full size vans (excluding vans used by handicapped persons, mini vans or sport utility vehicles used as passenger vehicles and receiving a "car" or "passenger vehicle" classification by the Georgia Department of Motor Vehicles), vehicles containing visible evidence of commercial use (such as tool boxes, tool racks, ladders, ladder racks or tow winches), are also prohibited from being parked in the Community, except: (1) when parked in garages; (2) when permitted by Association rules and regulations; (3), in the case of service vehicles, on a temporary basis during daytime business hours or during emergencies for the purpose of serving a Lot; (4) in the case of boats, jet-skis, trailers, recreational vehicles, motor homes and campers, may be stored out of site in the Community for no more than five (5) consecutive days and will be permitted in driveways for loading and unloading purposes only. Trucks with mounted campers which are used as a primary means of transportation shall not be considered recreational or commercial vehicles provided that they are used on a regular basis for transportation and the camper is stored out of public view upon removal. The Board may establish additional rules regarding vehicles and parking in the Community, including, but not limited to, requiring vehicles to be registered with the Association, limiting the number of vehicles per Lot or limiting the use or hours of use of designated or visitor parking.
If any vehicle is parked in the Community in violation of this Paragraph or the Association's rules, the Board or agent of the Association may tow the vehicle from the Common Area, at the vehicle owner's expense, after 48 hours written notice. Such notice shall: (1) be placed on the vehicle; (2) specify the nature of the violation; (3) warn of possible towing from the Common Area; and (4) state the name and telephone number of a person to contact regarding the violation. If 48 hours after such notice is placed on the vehicle the violation continues or thereafter occurs again within six months of such notice, the Board or agent of the Association may have the vehicle towed from the Common Area in accordance with the original notice and without further notice. If a vehicle on the Common Area is parked in a fire lane, is blocking another venicle or access to another Owner's or Occupant's Lot or dwelling, is obstructing the flow of traffic, or otherwise creates a hazardous condition, no notice shall be required and the vehicle may be towed from the Common Area immediately.
The Association has no liability for any towing in accordance with this subparagraph. Each Owner and Occupant hereby releases and holds harmless the Association, its Directors, Officers, agents and representatives, for any claim or damage from any such towing. The Association's right to tow is in addition to, and not in limitation of all other rights of the Association, including the right to assess fines.
K. Signs
Except as may be provided for herein or as may be required by legal proceedings or any governmental construction permitting process, no signs, advertising posters, political placards or billboards of any kind shall be erected, placed, or permitted to remain in the Community without the prior written consent of the Board of Directors or ACC, other than: (1) two professional security signs not to exceed six inches by six inches each in size displayed on a Lot; or (2) one professionally lettered "For Sale sign not to Declaration (revised per Board's comments).docx N:\Clients\Franklin Grove.2107\Documents\Amended and Restated Declaration \2015-12-17-Franklin Grove Amended and Restated
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BK :1320 PG:210 exceed 24 by 30 in size displayed on a Lot being offered for sale. The Board may establish rules permitting temporary signs on Lots announcing open houses, births, birthdays or other events for limited periods of time. The Board shall have the right to erect signs on the Common Area.
L. Rubbish and Trash
Owners and Occupants shall regularly remove all rubbish and trash from the Lot. No rubbish or trash shall be placed on the Common Area, except as provided herein. Rubbish and trash shall be disposed of in appropriate sealed bags and placed in proper receptacles for collection and shall not be burned anywhere in the Community. The Board may establish additional rules regarding placement of trash cans for pick-up and/or storage, including requiring trash removal in the Community from a single vendor and establishing schedules for trash can placement and trash pickup. In the event trash removal is required from a single vendor, the charges for usual and customary trash collection shall be assessed to each Lot equally as a Common Expense. Any additional charges incurred for the removal of large items or for items outside of the customary trash collection may be specifically assessed against the Lot incurring such charge. If a Lot Owner, for any reason, refuses trash collection service provided as a Common Expense, there shall be no abatement or credit on the annual assessments owed by such Owner.
M. Unsightly or Unkempt Conditions
Owners and Occupants are prohibited from engaging in activities which cause disorderly, unsightly or unkempt conditions on the Common Area or outside of a dwelling in the Community, such as the assembly and disassembly of motor vehicles and other mechanical devices. Clothing, bedding, rugs, mops, appliances, indoor furniture, and other household items shall not be placed or stored outside the dwelling. Only appropriate outdoor items, such as neatly stacked firewood, potted plants, patio furniture and grills may be kept outside the dwelling on any Lot. Owners and Occupants shall maintain such items in a neat and attractive condition, as determined in the Board's sole discretion.
N. Drainage and Unground Exploration
Catch basins and drainage areas are for the purpose of natural flow of water only. No obstructions or debris shall be placed in these areas. Each Owner and Occupant shall ensure that any drainage grating and/or headwalls on the Owner's Lot are clear of obstruction and debris and no Owner or Occupant may obstruct or re-channel the drainage flows across the Owner's Lot in any way that will impeded water and drainage on the Common Area. Additionally, no Lot shall be used for the purposes of boring, mining, quarrying, exploring for or removing oil or other hydrocarbons, minerals, gravel or
O. mpairment of Easements
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BK: 1320 FG:211 other Lots or their Owners or Occupants, including, but not limited to the placement of any structure, planting, or other material on any portion of the Community.
Antennas and Satellite Dishes
Except as provided below or otherwise approved by the Board of Directors, no 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 outdoors in any portion of the Community. Direct broadcast satellite (DBS") antennas and multi-channel multi-point distribution services (*MMDS") one meter or less in diameter and television broadcast service antennas may be installed in accordance with rules and regulations of the Federal Communication Commission ("FCC") and the Association. Any such devices shall be installed in the least conspicuous location available on the Lot that permits reception of an acceptable quality signal.
Q. Temporary Structures
No structure of a temporary or permanent character, trailer, basement, tent, shack, garage, barn, POD, or other outbuilding or structure shall be used or constructed on any portion of the Community without prior written approval of the Board of Directors and/or the ACC. The Board may establish additional rules regarding these types of structures, including, but not limited to, length of time such structures can be in place, types of permitted materials, and minimum and maximum sizes for these types of structures.
R. Playground and Recreational Equipment
No playground or recreational equipment shall be placed or installed on any portion of the Community without the prior written approval of the ACC. For the purpose of this provision, playground or recreational equipment shall include, but not be limited to, basketball goals, nets, skateboard ramps, sports courts, playhouses, swing sets or sand boxes. Additionally, all bicycles, teeter totters, temporary slides and other play toys must be kept and stored out of view. Such equipment shall not be kept or stored in front of a garage, on the driveway, on the front porch or on the front lawn unless they are actively being used at the time.
S. Fences
No fence or wall of any kind shall be erected, placed or altered on any portion of the Community by any Owner, Lot, without the prior written consent of the ACC. No fences are permitted on any Townhome Lot.
T. Sight Distance at Intersections
All property located at street intersections shall be landscaped and kept so as to permit safe sight across the street corners. No vehicle, fence, wall, hedge, shrub, tree or other landscaping shall be placed or permitted to remain where it would create a traffic or sight problem.
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BK:1320 PG:212 U. Mailboxes
All mailboxes shall be maintained in good repair. The Board may establish Design Standards for mailboxes and require modifications or upgrades to mailboxes and mailbox posts to meet said Design Standards. Additionally, upon the sale of a Lot, the new Owner shall have sixty (60) days to conform the mailbox on said Lot to the current Design Standards. If a mailbox is destroyed or damaged, the Owner shall, within 15 days, replace or restore any destroyed or damaged mailbox on the Lot in accordance with the Design Standards.
v. Yard Sales
No yard sale, garage sale, flea market or similar activity shall be conducted in the Community without the prior written consent of the Board of Directors and subject to all reasonable conditions that the Board may impose.
w. Window Treatments
Unless otherwise approved in writing by the Board of Directors, all windows on Lot which are exposed to a street or another dwelling shall have customary and appropriate window treatments. Any window treatments which are visible from the exterior of a Lot must be white in color. The Board may establish additional rules regarding window treatments, such as requirements for the location, type and exterior color of window treatments.
X. Landscaping and Irrigation
All front yards of Lots will be sodded and have underground irrigation systems sufficient to water and irrigate the front sodded areas. Sodding and irrigation will be installed within thirty (30) days from the date a Certificate of Occupancy has been issued for the Lot.
10. LEASING
A. General Leasing Provisions.
(1) Notice and Approval
All leases shall be in writing. At least seven (7) days before entering into a lease, the Owner shall provide the Board with: (1)) the names, phone numbers, work locations and work phone numbers of all of the proposed Occupants of the Lot; (2) the Owner's primary residence address and phone number, work location and work phone number; and (3) such other information required by the Board. Within ten (10) days after executing a lease for a Lot, the Owner shall provide the Board with a copy of the executed lease.
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BK: 1320 PG:213 (2) Lease Terms
Lots may be leased only in their entirety; no basements, rooms or fractions of Lots may be leased. There shall be no subleasing of Lots or assignment of
(3) Liability for Assessments; Compliance.
The Owner must provide the Occupant copies of the Association Legal Documents. The following provisions are incorporated into each lease of any Lot, whether or not expressly stated therein, and into the terms of any tenancy or occupancy even if no written lease or agreement exists between the Owner and the Occupant:
(a) Compliance with Association Legal Documents
All terms defined in the Amended and Restated Declaration of Covenants, Conditions and Restrictions for Franklin Grove ("Declaration"), recorded in the Oconee County, Georgia land records, as amended, are incorporated herein by this reference. The Owner and each Occupant shall comply with all provisions of the Association Legal Documents. The Owner and Occupants are responsible for violations by any guests of the Lot and may be sanctioned for any such violation.
If a Lot is leased or occupied in violation of the Association Legal Documents, or if the Owner, Occupant or guest violates the Association Legal Documents, the Board of Directors of The Franklin Grove, Inc. ("Association") shall be authorized to take all enforcement actions against the Owner and/or Occupant authorized under the Association Legal Documents.
(b) Use of Recreational Facilities
The Owner transfers and assigns to the Occupant, for the term of the lease, all rights and privileges the Owner has to use any recreational facilities on the Common Area.
(c) Liability for Assessments
When an Owner who is leasing his or her Lot fails to pay an assessment or any other charge to the Association when due, the delinquent Owner hereby consents to the assignment of any rent received from the Occupant during the period of the delinquency. In such case, upon request by the Board, the Occupant shall pay to the Association all unpaid assessments and other charges payable during and prior to the term of the lease and any other period of occupancy. However, the Occupant 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 the Occupant shall reduce, by the Declaration (revised per Board's comments).docx N:\Clients\Franklin Grove.2107\DocumentsAmended and Restated Declaration\2015-12-17-Franklin Grove Amended and Restated
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BK :1320 PG:214 same amount, the Occupant's obligation to make monthly rental payments to the Owner. If the Occupant fails to comply with the Board's request to pay assessments or other charges, such failure shall be deemed a violation of the Declaration and, in addition to all other enforcement rights, the Occupant shall pay to the Association all amounts authorized under the Declaration as if the Occupant were the Owner of the Lot, and the Association may evict the Occupant in accordance with the Association Legal Documents. 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 otherwise be responsible.
B. Enforcement
If a Lot is leased or occupied in violation of the Association Legal Documents, or if the Owner, Occupant or guest violates the Association Legal Documents, such violation is deemed to be a default under the terms of any lease or occupancy and the Association may require the Owner to evict the Occupants. If an Owner fails to provide the Association a copy of the lease and notice of leasing as provided herein, or an Owner otherwise leases a Lot in violation of this Paragraph, the Association may fine the Owner an initial fine plus additional daily fines for continued violation of these provisions, in addition to all other remedies provided in the Declaration, Bylaws or Georgia law.
11. SALE OF LOTS
An Owner intending to transfer or sell a Lot or any interest in a Lot shall give the Board of Directors written notice of such intention within seven days after executing the transfer or sales documents. As part of the notice, the current Owner shall furnish the Board the name and address of the intended grantee and such other information required by the Board. This Paragraph shall not be construed to create a right of first refusal in the Association or in any third party.
Within seven days after receiving title to a Lot, the purchaser or grantee of the Lot shall give the Board written notice of his or her ownership of the Lot. As part of the notice, the new Owner shall furnish the Owner's name, mailing address and such other information required by the Board.
12. INSURANCE
Section 1. Association Insurance. The Association, acting through its Board of Directors or its duly authorized agent, shall obtain and continue in effect the following types of insurance, if reasonably available, or if not reasonably available, the most nearly equivalent coverages as are reasonably available:
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BK :1320 PG:215 The Board shall obtain blanket "all-risk" property insurance, if reasonably available, for all insurable improvements on the Common Area and on other portions of the Area of Common Responsibility to the extent that the Association has assumed responsibility for maintenance, repair and/or replacement thereof in the event of a casualty. If blanket "all-risk" coverage is not generally available at reasonable cost, then at a minimum an insurance policy providing fire and extended coverage, including coverage for vandalism and malicious mischief, shall be obtained. The face amount of such insurance shall be sufficient to cover the full replacement cost of any repair or reconstruction in the event of damage or destruction from any insured peril.
The Board also shall obtain commercial general liability insurance on the Area of Common Responsibility, insuring the Association and its Members for damage or injury caused by the negligence of the Association or any of its Members, employees, agents or contractors while acting on its behalf. If generally available at a reasonable cost, the commercial general liability coverage (including primary and any umbrella coverage) shall have a limit of at least $1,000,000.00 per occurrence with respect to bodily injury, personal injury, and property damage, provided should additional coverage and higher limits be available at reasonable cost which a reasonably prudent person would obtain, the Association shall obtain such additional coverage or limits.
(c) The Board shall obtain workers compensation insurance and employer's liability insurance, if and to the extent required by law.
The Board shall obtain a fidelity bond or dishonesty insurance on Directors, Officers, employees, and other persons handling or responsible for the Association's funds, regardless of whether they are compensated by the Association. If reasonably available, the fidelity bond or dishonesty insurance shall cover at least one-quarter of the annual assessments from all members plus the reserve funds in the custody of the Association at any time during the term of the bond or policy. The bond or policy must provide that it may not be canceled, substantially modified or subject to non-renewal without at least 30-days prior written notice to the Association.
The Board shall obtain such additional insurance as the Board, in its best business judgment, determines advisable, which may include, without limitation, flood insurance.
Premiums for all insurance on the Area of Common Responsibility shall be Common Expenses and shall be included in the General Assessment.
The policies 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 at least equals the coverage required hereunder. In the event of an insured loss, the deductible shall be treated as a Common Expense in the same manner as the premiums for the applicable insurance coverage. However, if the Board reasonably determines, after notice and an opportunity to be heard, that the loss is the result of the negligence or willful conduct
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BK: 1320 PG:216 of one or more Lot Owners, then the Board may specifically assess the full amount of such deductible against such Owner(s) and their Lots pursuant to Article V, Section 5 hereof.
All insurance coverage obtained by the Board of Directors, whether obtained on behalf of the Association shall be governed by the following provisions:
All policies shall be written with a company authorized to do business in Georgia which holds a Best's rating of A or better and is assigned a financial size category of IX or larger as established by A. M. Best Company, Inc., if reasonably available, or, if not available, the most nearly equivalent rating which is available.
(b) All insurance shall be written in the name of the Association as trustee for the benefitted parties. Policies on the Common Area shall be for the benefit of the Association and its Members.
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.
(d) In no event shall the insurance coverage obtained and maintained by the Association be brought into contribution with insurance purchased by individual Owners, occupants, or their Mortgagees.
(e) All property insurance policies shall have an inflation guard endorsement, if reasonably available. If the policy contains a co-insurance clause, it shall also have an agreed amount endorsement.
(f) The Board of Directors shall be required to use reasonable efforts to secure insurance policies that will provide the following:
a waiver of subrogation by the insurer as to any claims against the Association's Board of Directors, officers, employees, and its manager, the Owners and their tenants, servants, agents, and guests;
a waiver by the insurer of its rights to repair and reconstruct instead of paying cash;
(3) a statement that no policy may be cancelled, invalidated, suspended, or subjected to nonrenewal on account of any one or more individual Owners; a statement that no policy may be cancelled, invalidated, suspended, or subjected to nonrenewal on account of any curable defect or violation without prior demand in writing delivered to the Association to cure the defect or violation and the allowance of a reasonable time thereafter within which it may be cured by the Association, its manager, any Owner, or Mortgagee;
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BK :1320 PG:217
a statement that any "other insurance" clause in any policy excludes individual Owners' policies from consideration; and
(6) a statement that the Association will be given at least thirty days' prior written notice of any cancellation, substantial modification, or non-renewal.
Section 2. Owners Insurance. By virtue of taking title to a Lot or Townhome Lot subject to the terms of this Declaration, each Owner covenants and agrees with all other Owners and with the Association that each Owner shall carry blanket "all-risk" property insurance on its Lot (s) and structures constructed thereon providing full replacement cost coverage (less a reasonable deductible), unless the Association carries such insurance (which they may, but are not obligated to do hereunder).
Each Owner further covenants and agrees that in the event of damage to or destruction of structures comprising his Lot, the Owner shall proceed promptly to repair or to reconstruct the damaged structure in a manner consistent with the original construction or such other plans and specifications as are approved in accordance with Article VIl of this Declaration. Alternatively, the Owner shall clear the Lot of all debris and ruins and thereafter shall maintain the Lot in a neat and attractive, landscaped condition consistent with the Community-Wide Standard. The Owner shall pay any costs of repair or reconstruction which are not covered by insurance proceeds.
Section 3. Damage and Destruction.
(a) Immediately after damage or destruction by fire or other peril to all or any part of the Property covered by insurance written in the name of the Association, the Board of Directors or its duly authorized agent shall proceed with the filing and adjustment of all claims arising under such insurance and shall obtain reliable and detailed estimates of the cost of repair or reconstruction of the damaged or destroyed property. Repair or reconstruction, as used in this paragraph, means repairing or restoring the property to substantially the same condition in which it existed prior to the fire or other peril, allowing for any changes or improvements necessitated by changes in applicable building codes.
(b) Any damage to or destruction of the Common Area shall be repaired or reconstructed unless the Members representing at least seventy-five (75%) percent of the total Class "A" votes in the Association, and the Class "B" Member, if any, decide within 60 days after the loss not to repair or reconstruct.
If for any reason either the amount of the insurance proceeds to be paid as a result of such damage or destruction or reliable and detailed estimates of the cost of repair or reconstruction, or both, are not made available to the Association within said period, then the period shall be extended until such funds or information shall be made available. However, such extension shall not exceed 60 additional days. No Mortgagee shall have the right to participate in the determination of whether the damage or destruction to the Common Area shall be repaired or reconstructed.
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BK:1320 FG:218
If it is determined in the manner described above that the damage or destruction to the Common Area shall not be repaired or reconstructed and no alternative improvements are authorized, the affected portion of the Property shall be cleared of all debris and ruins. Thereafter the Property shall be maintained by the Association in a neat and attractive, landscaped condition consistent with the Community-Wide Standard.
Section 4. Disbursement of Proceeds. Any insurance proceeds remaining after defraying such costs of repair or reconstruction, or if no repair or reconstruction is made, any proceeds remaining after making such settlement as is necessary and appropriate with the affected Owner or Owners and their Mortgagee(s) as their interests may appear, shall be retained by and for the benefit of the Association and placed in a capital improvements account. This is a covenant for the benefit of any Mortgagee of a Lot and may be enforced by such Mortgagee.
Section 5. Repair and Reconstruction. If the insurance proceeds are insufficient to defray the costs of repairing or reconstructing the damage to the Common Area, the Board of Directors shall, without the necessity of a vote of the Members, levy a Special Assessment against those Lot Owners responsible for the premiums for the applicable insurance coverage under Section 1 of this Article. Additional assessments may be made in like manner at any time during or following the completion of any repair or reconstruction. 13. REPAIR AND RECONSTRUCTION AFTER CASUALTY DAMAGE
A. Common Area
In the event of damage to or destruction of any structure on the Common Area, the Board of Directors shall arrange for and supervise the prompt repair or reconstruction of such structure, with such improvements or modifications it deems appropriate, unless, within 10 days of such event, 10% of the Owners petition the Board to call for a vote of the membership to approve said reconstruction and 80% of the Owners vote not to do so.
(1) Construction Fund
Any insurance proceeds collected on a claim against any Association hazard policy and any special assessments collected pursuant to subparagraph (2) below shall constitute a construction fund to be used by the Board for repair or restoration pursuant to this Paragraph.
(2) Proceeds
If the proceeds of insurance are not sufficient to defray the Board's estimated or actual costs of repair or reconstruction, including, but not limited to, any professional fees and premiums for construction bonds the Board deems necessary, the Board may levy a special assessment against all Owners without the necessity of a membership vote or compliance with any other requirements for approval of special N:\Clients\Franklin Grove.2107\Documents\Amended and Restated Declaration\2015-12-17-Franklin Grove Amended and Restated Declaration (revised per Board's comments).docx
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BK :1320 PG:219 assessments in this Declaration. Any surplus funds remaining after the repair or reconstruction is completed shall be common funds of the Association to be used as determined by the Board.
B. Lots
In the event of damage to or destruction of any structure on a Lot, the Owner shall either: (1) within 180 days, repair or reconstruct such structure in accordance with plans and specifications approved by the ACC; or (2) within 60 days, clear the Lot of all debris and sod or landscape all portions of the Lot as approved by the ACC.
14. EMINENT DOMAIN
Nhenever any Common Area is taken by, or conveyed in lieu of condemnation to any authority having condemnation or eminent domain power, the Board of Directors shal give notice thereof to each Owner. If any structure on the Common Area is so taken or conveyed, the Board shall arrange for and supervise the prompt reconstruction of such structure, to the extent sufficient Common Area is available, with such improvements or modifications it deems appropriate, unless 80% of the Owners vote not to do so.
If proceeds from the condemning authority are not sufficient to defray the Board's estimated or actual costs of reconstruction, including, but not limited to, any professional fees and premiums for construction bonds the Board deems necessary, the Board may levy a special assessment against all Owners without the necessity of a membership vote or compliance with any other requirements for approval of special assessments in this Declaration. Any surplus funds remaining after the reconstruction is completed shall be common funds of the Association to be used as determined by the Board.
15. EASEMENTS
A. Easements for Use and Enjoyment.
Every Owner shall have a right and easement of ingress and egress, use and enjoyment in and to the Common Area, including without limitation, the right of pedestrian and vehicular access and ingress and egress to and from his or her Lot which shall be appurtenant to and shall pass with the title to his or her Lot, subject to the Association's right to:
(1) Adopt and publish rules and regulations governing the use of the Common Area, including, but not limited to, parking restrictions;
(2) Charge reasonable admission and other fees for the use of any portion of the Common Area;
(3) Limit the number of Owners' guests who may use the Common Area; (4) Provide for the exclusive use and enjoyment of specific portions of the Common Area at certain designated times by an Owner;
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BK: 1320 PG :220 (5) Suspend Owners' rights to use the Common Area as set forth in this Declaration;
(6) Borrow money as provided in the Bylaws, subject to the rights, interests, easements and privileges of the Owners set forth in this Declaration;
Grant permits, licenses, easements and rights-of-way across the Common Area; and
(8) Dedicate or transfer all or any portion of the Common Area to any public agency, authority, or utility for such purposes. No dedication or transfer shall be effective unless approved by members holding two-thirds (2/3) of the total Association
The Owners' rights and easements granted in this Paragraph are subject to: (1) all other rights of the Association and other Owners set forth in this Declaration, the Bylaws or the Articles of Incorporation; and (2) all encumbrances and other matters of public record affecting title to the Common Area.
B. Encroachments
There shall be a reciprocal appurtenant easement of encroachment by and between each Lot and the Common Area or the Limited Common Area adjacent thereto due to the unintentional placement or settling or shifting of the improvements constructed, reconstructed, or permissibly altered thereon; provided, however, that in no event shall an easement for encroachment exist if such encroachment occurred due to the willful conduct on the part of any individual Owner, tenant or the Association. In the event that any Lot or other authorized improvement shall be partially or totally damaged or destroyed as a result of a fire or casualty, or as a result of condemnation or eminent domain proceedings, and then repaired or reconstructed, encroachments of improvements of the Lot upon the adjacent Common Area or Limited Common Area, due to such repair or reconstruction, shall be permitted, and valid easements for such encroachments or maintenance, repair and replacement thereof shall exist.
Easements for Utilities
There is hereby reserved to the Association, or its designee, blanket easements upon, across, above and under all property within the Community for access, ingress, egress, construction, installation, repair, replacement, reconstruction and maintenance of: (a) gas, water, sanitary sewer and electricity services and all other utilities serving any portion of the Community; (b) any water runoff and storm drainage systems; and (c) storage of building supplies and materials easements and any other services such as, but not limited to, any telephone and telecommunication systems, master television antenna system, cable television system or security system serving the Community. The Board of Directors has the right to grant a specific license or easement by separate recordable document to any party furnishing such utilities or services.
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BK: 1320 PG:221 D. Easement for Entry
There is hereby reserved to the Association and its designee, an easement and right, but not the obligation, to enter onto any Lot for emergency, life-satety, security and safety. The 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 notice to the Owner or Occupant. This right of entry shall include the right of the Association to enter a Lot to cure any condition which may increase the possibility of a fire or other hazard in the event that an Owner fails or refuses to cure the condition upon request by the Board. No one exercising the easement and rights granted in this Paragraph 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 Lot shall exist.
E. Easement for Association Maintenance
There is hereby reserved to the Association and its designee, an easement and right across all portions of the Community, to allow the Association to fulfill the maintenance obligations described in this Declaration and for the purpose of maintaining, repairing, replacing, removing, or landscaping that portion of each Lot and/or the Common Area for which the Association has been given or may assume that responsibility or obligation (including, but not limited to, the perimeter fence around the Franklin Grove subdivision that was installed by the Association on individual Lots). This easement shall be exercised with a minimum of interference to the quiet enjoyment of the hyPerson causing damage to the own sparenty prolear the damage arty sole expense. ,
F. Easements for Owners' Maintenance and Repair
There is hereby created reciprocal appurtenant easements over and upon adjacent Lots for the purpose of maintaining or repairing the improvements and landscaping on each Lot. This easement shall extend into each Lot not more than five feet from any point on the common boundary line between the Lots. Owners may exercise this easement only for the reasonable period of time necessary to complete the needed maintenance or repair. The Owner exercising this easement right shall be liable for the prompt repair of any damage such Owner caused to the Lot over which this easement is exercised. The damaged portions of such Lot shall be restored to substantially the same condition that existed prior to the damage.
G. Encroachment Easements
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BK :1320 PG:222 which may be attached to the walls and roof of such buildings, and which may encroach onto or over or extend into the air space of any portion of the Common Area, or, conversely, if any such improvements initially constructed on the Common Area encroach onto or over portions of any Lot, a valid easement for the encroachment and for the maintenance, repair and replacement thereof, shall exist so long as the encroachment exists.
H. Public in General
The easements and rights created in this Paragraph do not, are not intended to, and shall not be construed to create any easements or rights in or for the benefit of the general public; provided, however, nothing set forth herein shall in any way limit or restrict any easements or rights already granted to the public as such easements or rights are previously recorded in the Oconee County, Georgia land records. The Board of Directors hereby reserves the right to close temporarily, all or any portion of the Community that, in the reasonable opinion of the Board, may be legally necessary to prevent a dedication of such property, or the accrual of any rights to such property, to the general public or to any Person other than the Persons for which such easements are expressly created in this Declaration.
16. AUTHORITY AND ENFORCEMENT
A. Compliance with Association Legal Documents
All Owners, Occupants and their guests shall comply with the Association Legal Documents. The Association, and in an appropriate case, one or more aggrieved Owners, may take action to enforce the terms of the Association Legal Documents directly against all Violators. However, if an Owner's family member, guest or Occupant violates the Association Legal Documents, the Association, in its sole discretion, is permitted to enforce the terms of the Association Legal Documents against: (1) only the Owner; (2) only the violating family member, guest or Occupant; or (3) both the Owner and the violating family member, guest or Occupant. Notwithstanding anything herein to the contrary, the Owner of the Lot is always ultimately responsible for his or her own actions and the actions of all family members, Occupants and guests of such Lot.
Nothing herein shall be construed to affect the rights of an aggrieved Owner or Occupant to proceed independently for relief from interference with his or her personal or property rights against a Person violating the Association Legal Documents. The Board of Directors may, in its discretion, require the aggrieved Owner or Occupant to independently pursue all available remedies under Georgia law against the Violator before the Association intervenes and commences enforcement action against such
B. Types of Enforcement Actions
In the event of a violation of the Association Legal Documents, the Association shall have the power to take any or all of the following actions separately or simultaneously; provided, however, all suspensions and fines shall comply with the N:\Clients Franklin Grove.2107\Documents Amended and Restated Declaration\2015-12-17-Franklin Grove Amended and Restated Declaration (revised per Board's comments).docx
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BK: 1320 PG:223 procedures described below and nothing herein shall authorize the Association or the Board to deny ingress and egress to or from a Lot:
(1) Suspend all Violators' rights to use the Common Area;
(2) Suspend the voting rights of a violating Owner;
(3) Impose reasonable fines against all Violators, which shall constitute a lien on the violating Owner's Lot;
(4) Use self-help to remedy the vialation;
(5) Bring an action for permanent injunction, temporary injunction and/or specific performance to compel the Violator to cease and/or correct the violation; and
(6) Record in the Oconee County land records a notice of violation identifying any uncured violation of the Association Legal Documents regarding the Lot.
C. Suspension and Fining Procedure
Except as provided below, before imposing fines or suspending right to use the Common Area, suspending services provided as a Common Expense, or the right to vote, the Association shall give a written violation notice to the Violator as provided below.
(1) Violation Notice
The written violation notice to the Violator shall:
(a) Identify the violation, suspension(s) and/or fine(s) being imposed; and
(b) Advise the Violator of the right to request a violation hearing before the Board of Directors to contest the violation or request reconsideration suspension(s) or the fine(s).
Notwithstanding the Violator's right to request a violation hearing, suspension(s) and/or fine(s) shall commence on the date of the written violation notice, unless a later date is specified in such notice.
(2) Violation Hearing
If the Violator submits a written request for a violation hearing within 10 days of the date of the violation notice described above, then the Board of Directors shall schedule and hold, in executive session, a violation hearing. If a Violator fails to timely request a violation hearing, such Violator loses the right to contest the violation and request reconsideration of the suspension(s) and/or the fine(s). If a Violator timely requests a violation hearing, the Violator shall have a reasonable opportunity to address the Board regarding the violation; provided, however, the Board may establish rules of Declaration (revised per Board's comments).docx N:\Clients\Franklin Grove.2107\Documents\Amended and Restated Declaration\2015-12-17-Franklin Grove Amended and Restated
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BK :1320 PG:224 conduct for the violation hearing, including but not limited to, limits on the amount of time one person can speak and limits on the number of participants who may be present at one time. The minutes of the violation hearing shall contain a written statement of the results of such hearing.
(3) No Violation Notice and Hearing Required
No violation notice or violation hearing shall be required to:
(a) impose late charges on delinquent assessments;
suspend a violating Owner's voting rights or suspend services paid for as a Common Expense if the Violator's Lot is shown on the Association's books and records to be more than 30 days past due in any assessment or charge, in which case suspension of the violating Owner's right to vote shall be automatic and shall continue until the violation no longer exists or the Board of Directors otherwise reinstates such rights in writing;
(c) suspend a Violator's right to use the Common Area if the Violator's Lot is shown on the Association's books and records to be more than 30 days past due in any assessment or charge, in which case suspension of the Violator's right to use the Common Area shall be automatic (which shall allow the Association to tow and/or boot a Violator's vehicle located on the Common Area without complying with the Suspension and Fining Procedures described above);
(d) Engage in self-help in an emergency;
Impose fines for each day of a continuing violation, in which case, each day the violation continues or occurs again constitutes a separate violation and fine(s) may be imposed on a per diem basis without any further notice to the Violator; or
(f) impose fines if the same violation occurs again on the same Lot, in which case fine(s) may be imposed on a per diem basis without any further notice to the Violator.
D. Self-Help
In addition to all other enforcement rights granted herein, the Board of Directors may elect to enforce any provision of the Association Legal Documents by self help without the necessity for compliance with the Suspension and Fining Procedures described above.
By way of example and not limitation, the Association or its duly authorized agent shall have the authority to tow, or caused to be towed, vehicles that are in violation of parking regulations and enter a Lot or any portion of the Common Area to abate or remove any structure, thing or condition that violates the Association Legal Documents. Unless an emergency exists, before exercising self-help, the Association shall give the N:\Clients|Franklin Grove.2107\DocumentslAmended and Restated Declaration\2015-12-17-Franklin Grove Amended and Restated Declaration (revised per Board's comments).docx
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BK: 1320 PG:225 Violator at least ten days prior written notice. Such notice shall request that the Violator remove and abate the violation and restore the Lot to substantially the same condition that existed prior to the structure, thing or condition being placed on the Lot and causing the violation. Such removal, abatement and restoration shall be accomplished at the Violator's sole cost and expense. If the same violation occurs again on the same Lot, the Association may exercise self-help without any further notice to the Violator.
E. Injunctions and Other Suits at Law or in Equity
All Owners agree and acknowledge that there may not be adequate remedies at law to enforce the Association Legal Documents. Therefore, in addition to all other enforcement rights granted herein, the Association is hereby entitled to bring an action for permanent injunction, temporary injunction and/or specific performance to compel a Violator to cease and desist and/or correct any violation.
F. Costs and Attorneys' Fees for Enforcement Actions
In any action taken by the Association to enforce the Association Legal Documents, the Association shall be entitled to recover from the Violator, any and all costs incurred by the Association, including but not limited to attorneys' fees actually incurred, all of which shall constitute a lien against the violating Owner's Lot.
G. Failure to Enforce
The Board of Directors has the sole discretion to decide which, if any, enforcement action to pursue against each Violator. The failure of the Board to enforce any provision of the Association Legal Documents shall not be deemed a waiver of the right of the Board to do so thereafter. No right of action shall exist against the Association for failure to enforce if the Board of Directors determines that:
(1) the Association's position is not strong enough to justify taking enforcement action;
(2) a particular violation is not of such a material nature as to be objectionable to a reasonable person;
(3) a particular violation is not of such a material nature to justify the expense and resources to pursue or continue to pursue enforcement action;
(4) the aggrieved Owner or Occupant asserting a failure of enforcement has not independently pursued all available individual remedies under Georgia law; or
(5) the Association enforces only against an Owner for the violation of the Owner's family member, guest or Occupant or the Association does not enforce against the Owner and enforces only against the violating family member, guest or Occupant.
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BK:1320 • PG:226 17. AMENDMENTS
A. Member Approval Procedure
This Declaration may be amended upon the affirmative vote, written consent, or any combination thereof of Owners holding two-thirds (2/3) of the total eligible Association vote. However, it is recognized that, when Owners fail to participate in an amendment vote because of apathy or other reasons which are not based on any disagreement with a proposed amendment, important amendments to the Declaration or By-Laws may have no chance of approval, with the supermajority voting requirements established under the law. It also is recognized that supermajority voting requirements are important for Owner actions which are as significant as amending this Declaration or the By-Laws. To balance these competing concerns without the damaging consequences of Owner non-participation in amendment voting, the Board is authorized to establish a procedure to allow every eligible owner an opportunity to issue a vote of approval, disapproval or abstention on proposed amendments to the Declaration or By-Laws and Diese on of by aren then consider any non-response by an Owner within the voting time periods established by the Board to act as a consent or approval by such Owner.
Any action to challenge the validity of an amendment adopted under this Section must be brought within one year of the effective date of such amendment. No action to challenge such amendment may be brought after such time.
B. Eligible Mortgage Holder Approval
In addition to approval by the Owners as provided above, material amendments to this Declaration and the Bylaws must be approved by Eligible Mortgage Holders who represent at least 51% of the votes of Lots 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 30 days after the Eligible Mortgage Holder receives notice of the proposed amendment sent by certified or registered mail, return receipt requested.
C. Amendments to Comply with Law or Conform Documents
Notwithstanding the foregoing, the Board of Directors, without the necessity of a vote from the Owners, may amend this Declaration and the Bylaws to comply with any applicable state, city or federal law, including but not limited to, compliance with applicable guidelines of the Federal National Mortgage Association ('Fannie Mae"), Federal Home Loan Mortgage Corporation ('Freddie Mac"), the Department of Housing and Urban Development ('HUD") and the Veterans Administration (VA"), or to resolve contlicts between this Declaration, the Bylaws, the Articles, and applicable laws.
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BK 1320 PG :227 D. Validity of Amendments
No Person shall be permitted to bring any legal action to challenge the validity of an amendment to this Declaration or the Bylaws more than one year after the recording thereof in the Oconee County, Georgia land records.
18. GENERAL PROVISIONS
A. Security
The Association may, but shall not be required to, provide measures or take actions which directly or indirectly improve security in the Community. Each Owner, for himself or herself and his or her Occupants, tenants, guests, licensees, and invitees, acknowledges and agrees that the Association is not a provider of security. The Association has no duty to provide security in the Community. Furthermore, the Association does not guarantee that Owners, Occupants and other people will not commit criminal acts in the Community or that unauthorized people will not gain access to the Community. 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 Owner. The Association shall not be held liable for any loss or damage by reason of failure to provide adequate security or ineffectiveness of measures undertaken.
B. Dispute Resolution
Before filing any lawsuit or administrative proceeding against the Association, the Board of Directors, any Officer or Director, or the Association's property manager, an Owner or Occupant shall request in writing and attend a meeting with the Board to discuss an amicable resolution of any dispute. The Owner or Occupant shall, in such request and at the meeting, make a good faith effort to explain the grievance and resolve the dispute. Upon receiving a request for a meeting, the Board shall give notice of the date, time and place of the meeting to the person requesting the meeting. The Board shall schedule this meeting for a date not less than seven or more than 30 days from the date of receipt of the meeting request, except with the approval of the Owner or Occupant. After the meeting, the Board shall have a reasonable opportunity to address the Owner's or Occupant's grievance before a suit is filed.
C. No Discrimination
No action shall be taken by the Association or the Board of Directors which would unlawfully discriminate against any person on the basis of race, creed, color, national origin, religion, sex, familial status or handicap.
D. Implied Rights
In addition to express rights, the Association may exercise any right or privilege implied from the existence of any express right or privilege or reasonably necessary to effectuate any such right or privilege.
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BK: 1320 PG: 228 Electronic Records, Notices and Signatures
Notwithstanding any other portion of this Declaration, records, signatures and notices shall not be denied validity or effectiveness hereunder solely on the grounds that they are transmitted, stored, made or presented electronically. The relevant provisions of the Bylaws shall govern the giving of all notices required by this Declaration.
Use of Words "Franklin Grove"
"Franklin Grove" is a service mark of the Association. No person shall use the term "Franklin Grove" or any derivative in any printed or promotional material without the Association's prior written consent. However, Owners may use the term "Franklin Grove" sm in printed or promotional matter where such term is used solely to specify that particular property is located within the Community. Any use of the name "Franklin Grove" sm shall be in a manner in which proprietary rights to such name are protected.
G. Preamble
The preambles and recitals of this Declaration are by reference made a part of this document as if fully stated herein in their entirety.
H. Duration
The covenants and restrictions of this Declaration shall run with and bind the real property in the Community perpetually to the extent provided in the Act.
Severability
Invalidation of any one of these covenants or restrictions, by judgment, 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. 19. PREPARER
Johanson LO, Sara pied on pread, Sure 55, At anta, Georgia 3030559, Lazega &
[signature page to follow]
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BK: 1320 PG:229 IN WITNESS WHEREOF, the undersigned Officers of Franklin Grove Homeowners Association, Inc., hereby certify that the above amendment to the Original Declaration were duly adopted by the required majority of the Association and its membership, with any required notices duly given.
This 2 day of March 20 10
Sworn to and subscribed to before me FRANKLIN GROVE HOMEOWNERS this 2 day of Marun _, 2016 ASSOCIAITON, INC.
Witness _(Seal)
ecretary
Notary Public AGELA L DURA
[Notary Seal]
My commission NOTARY =
Expires: May 1 2017 PUBLiC
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Signature Page to Amended and Restated Declaration of
Covenants and Restrictions for Franklin Grove
вК :1320 PG:230
LEGAL DESCRIPTION OF SUBMITTED PROPERTY
All that tract or parcel of land, situate, lying and being in State of Georgia, County of Oconee, located in G.M.D. 240, and being known and designated as Franklin Grove Subdivision, as shown on plat entitled "Final Plat for Franklin Grove Phase Il" Sheets 1 through 12, by Apalachee Land Surveying, Inc., Charles D. Norton, RLS 2872, dated February 1, 2005, recorded in Plat Book 36, Page 3-14, in the office of the Clerk of the Superior Court of Oconee County, Georgia
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ВK:1З20 PG:231 EXHIBIT iA-1"
COTTAGE LOTS AKA ESTATE LOTS
All that tract or parcel of land, situate, lying and being in State of Georgia, County of Oconee, located in G.M.D. 240, and being known and designated as Franklin Grove Subdivision, as shown on plat entitled "Final Plat for Franklin Grove Phase Il' Sheets 1 through 12, by Apalachee Land Surveying, Inc., Charles D. Norton, RLS 2872, dated February 1, 2005, recorded in Plat Book 36, Page 3-14, in the office of the Clerk of the Superior Court of Oconee County, Georgia, more commonly known as Lots A1-A27 and A27-A33.
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BK :1320 PG:232 EXHIBIT IA-2I
TOWNHOMES NEIGHBORHOOD
All that tract or parcel of land, situate, lying and being in State of Georgia, County of Oconee, located in G.M.D. 240, and being known and designated as Franklin Grove Subdivision, as shown on plat entitled "Final Plat for Franklin Grove Phase Il' Sheets 1 through 12, by Apalachee Land Surveying, Inc., Charles D. Norton, RLS 2872, dated February 1, 2005, recorded in Plat Book 36, Page 3-14, in the office of the Clerk of the Superior Court of Oconee County, Georgia, more commonly known as lots C1-C39
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BK : 1320 PG: 233 Exhibit "A-3"
COURTYARD LOTS
All that tract or parcel of land, situate, lying and being in State of Georgia, County of Oconee, located in G.M.D. 240, and being known and designated as Franklin Grove Subdivision, as shown on plat entitled "Final Plat for Franklin Grove Phase II Sheets 1 through 12, by Apalachee Land Surveying, Inc., Charles D. Norton, RLS 2872, dated February 1, 2005, recorded in Plat Book 36, Page 3-14, in the office of the Clerk of the Superior Court of Oconee County, Georgia, more commonly known as lots B1-B60
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