Covenants
DOC# 003169
FILED IN OFFICE 04/11/2006 11:44 AM BK: 862 PG:222-269 ANGELA WATSON
STATE OF GEORGIA CLERK OF SUPERIOR COUNTY OF OCONEE COURT
OCONEE COUNTY
Return To:
Rome & Associates, P.C.
30 Whitlock Place, Suite 101
Marietta, Georgia 30064
(770) 428-6002
Cross References: Deed Book 311, Page 218;
Deed Book 415, Page 225; &
Deed Book 476, Page 362;
AMENDED & RESTATED DECLARATION OF
COVENANTS FOR OCONEE CROSSING SUBDIVISION
PHASES I, II & III
THIS AMENDED AND RESTATED DECLARATION OF PROTECTIVE
COVENANTS ("Declaration) is made on the date hereinafter set forth by Oconee
Crossing Property Owners' Association, Inc. (hereinafter referred to as the
"Association").
WITNESSETH
WHEREAS, Oconee Crossings Partnership, recorded Protective Covenants
for Oconce Crossing Subdivision, Phase L, in Deed Book 311, Page 218, in the
WHEREAS, Cool Vent, Inc. & Roger P. Glass recorded Protective Covenants
for Oconee Crossing Subdivision, Phases II & III, in Deed Book 415, Page 225, and
Deed Book 476, Page 362, respectively, in the records of Oconee County, Georgia
(said covenants for all three Phases as amended hereinafter referred to as the
"Original Declaration");
WHEREAS, the Original Deciaration provides for amendment by an
affirmative vote of at seventy percent (70%) of the Oconee Crossing Lot Owners;
WHEREAS, at least seventy percent (70%) of the Lot Owners affirmatively
voted in favor of this Amended and Restated Declaration, as affirmed to by the
attached signature of the Association President, and attested to by the Association
Secretary; and
WHEREAS, the Owners wish to submit the Declaration of Covenants to the
provisions of the Georgia Property Owners Association Act, O.C.G.A. Sections 44-3-
NOW, THEREFORE, the Original Declaration is amended in its entirety and
the following is simultaneously substituted therefore:
THIS AMENDED AND RESTATED DECLARATION OF PROTECTIVE COVENANTS
FOR OCONEE CROSSING SUBDIVISION HEREBY SUBMITS THE PROPERTY TO THE
PROVISIONS OF THE GEORGIA PROPERTY OWNERS' ASSOCIATION ACT, O.C.G.A.
SECTIONS 44-3-220, ET. SEQ
BK: 862 PG: 223 TABLE OF CONTENTS
Article Section Page
DEFINITIONS
II. PROPERTY SUBJECT TO THIS DECLARATION 1
1. Property Hereby Subjected To This Declaration -- 2. Other Property
ASSOCIATION MEMBERSHIP AND VOTING RIGHT 2
1. Membership
2. Voting
IV. ASSESSMENTS 3
1. Purpose of Assessment
2. Creation of the Lien and Personal Obligation for
Assessments
3. Certificate of Status Regarding Assessments
4. Computation of Assessments
5. Initiation Fee
6. Special Assessments
7. Specific Assessments
Effect of Nonpayment of Assessments:
Remedies of the Association
V. MAINTENANCE
1. Association's Responsibility
2. Owner's Responsibility
3. Party Walls and Party Fences
BK:862 PG=224 VI. USE RESTRICTION AND RULES 9
1. General
2. Use of Lots & Occupants
Signs
Vehicles 10 Leasing 10 Occupants Bound 13 Animals and Pets
Nuisance 14 Unsightly or Unkempt Conditions 14 10. Architectural Standards 14 11. Antennas 16 12. Gardens, Basketball Goals, Etc. 16 13. Tree Removai 16 14. Lighting 16 15. Drainage 17 16. Sight Distance at Intersections
17. Clotheslines, Garbage Cans, Woodpiles, Etc.
18. Subdivision of Lot
19. Guns
20. Solar Devices
21. Fences
22. Exterior Colors
23. Mailboxes
24. Detached Structures
25. Entry Features and Street Signs
26. Above Ground Pools
VII. INSURANCE AND CASUALTY LOSSES 19
1. Insurance
2. Damage and Destruction - Common Property
3. Damage and Destruction - Lots
4. Insurance Deductible
VIII. CONDEMNATION
BK=862 PG:225 IX. ANNEXATION OF ADDITIONAL PROPERTY 23
1. Annexation 23
X. MORTGAGEE PROVISIONS 23
1. Notices of Action
2. No Priority
3. Notice to Association
4. Amendments by Board
5. Applicability of Article X
6. Failure of Mortgagee to Respond
XI. EASEMENTS 25
1. Easements for Encroachment and Overhang
2. Easements for Use and Enjoyment
Easements for Utilities
Easements for Association Maintenance
Easements for Maintenance and Repair
Easement for Entry
Easements for Entry Features and Street Signs
Easements for Use and Maintenance of Lake:
Pedestrian Easement.
9. Easements for Common Drives
BK :862 PG:226 XII. GENERAL PROVISIONS 30
Enforcement 30 2. Self-Help 31 3. Duration 31 4. Amendment 31
Partition 31 Gender and Grammar 31 Severability 31 Captions 32 Preparer 32 10. Perpetuities 32 mI. Indemnification 32 12. Books and Records 33 13. Financial Statements 33 14. Notice of Sale
15. Agreements
16. Variances
17. Litigation
18. Implied Rights
19. Use or Recreational Facilities By Nonmembers
20. Dispute Resolution and Restrictions on Litigation
BK:862 PG:227 TABLE OF EXHIBITS
Exhibit Name
"A" Definitions
BK=862 PG=22S AMENDED & RESTATED DECLARATION OF PROTECTIVE
COVENANTS FOR OCONEE CROSSING
Backoround Statement
Now, therefore, the Association hereby declares that the property described in Article II, Section 1, of this Declaration, including the improvements constructed or to be constructed thereon, is hereby subjected to the provisions of this Declaration and shall be held, sold, transferred, conveyed, used, occupied, and mortgaged or otherwise encumbered subject to the covenants, conditions, restrictions, easements, assessments, and liens, hereinafter set forth, which are for the purpose of protecting the value and desirability of, and which shall run with the title to, the real property hereby or hereafter made subject hereto, and shall be binding on all Persons having any right, title, or interest in all or any portion of the reai property now or hereafter made subject hereto, their respective heirs, legal representatives, successors, successors--in-title, and assigos and shall inure to the benefit of each and every owner of all or any portion thereof.
Article I
Definitions
Unless the context shall prohibit, certain words used in this Declaration shall be defined as set forth in Exhibit "A" attached hereto and by reference made a part hereof.
Article II
Property Sublect To This Declaration
Section 1. Property Hereby Subiected To This Declaration.
All real property previously subjected to the Original Declaration is hereby included by reference thereto, and by the recording of this Declaration, is subject to the covenants and restrictions hereafter set forth, and which is held, transferred, sold, conveyed, used, occupied, and mortgaged or otherwise encumbered.
Section 2. Other Property.
Only the real property described in Section 1 of this Article II Is hereby made subject to this Decharation; provided, however, by one or more Supplementary Declarations, the Association has the right, but not the obligation, to subject other real property to this Declaration, as hereinafter provided.
BK:862 PG=229
Article III
Association Membership and Voting Rights
Section 1. Membership.
Every Person who is the record owner of a fee or undivided fee interest in any Lot that is sabject to this Declaration shall be deemed to have a membership in the Association. The foregoing is not intended to include Persons who hold an interest merely as security for the performance of an obligation, and the giving of a security interest shall not terminate the Owner's membership. No Owner, whother one or more Persons, shall have more than one (1) membership per Lot. lu the event there are multiple Owners of a Lot, votes and rights of use and enjoyment shall be as provided in this Declaration and in the Bylaws. Membership shall be appurtenant to and may not be separated from owaership of any Lot. The rights and privileges of membership, incinding the right to vote and to hold office, may be exercised by a member or the member's spouse, but in no event shall more than one (1) vote be cast nor office heid for each Lot owned.
Section 2. Voting.
Members shall be entitled to one (1) vote for each Lot owned for which annual assessments are paid. When more than one Person holds an ownership interest in any Lot, the vote for such Lot shall be exercised as those Owners themselves determine and advise the Secretary of the Association prior to any meeting. In the absence of such advice, the Lot's vote shall be suspended in the event more than one Person secks to exercise it. Members may have their voting rights suspended upon the non-payment of association assessments or fines.
BK:862 PG: 230
Article IV
Assessments
Section 1. Purpose of Assessment.
The assessments provided for herein shall be used for the general purposes of promoting the recreation, health, welfare, common benefit, and enjoyment of the Owners and Occupants of Lots, including the maintenance of real and personal property, all as may be more specifically authorized from time to time by the Board of Directors.
Section 2. Creation of the Lien and Personal Obligation for
Assessments.
Each Owner of any Lot, by acceptance of a deed therefore, whether or not it shall be so expressed in such deed, covenants and agrees to pay to the Association for each Lot owned: (a) annual assessments or charges; (b) special assessments, such assessments to be established and collected as hereinafter provided; and (c) specific assessments against any particular Lot which are established pursuant to the terms of this Declaration, including, but not limited to, reasonable fines as may be imposed in accordance with the terms of this Declaration. All such assessments, together with tate charges, interest, costs, and reasonable attorney fees actually incurred by the Association or assessed against the Lot Owner, in the maximum amount permitted under the Act, shall be a charge on the land and shall be a continuing lien upon the Lot against which each assessment is made. Such amounts shall also be the personal obligation of the Owner of such Lot at the time when the assessment fell due.
Such len shall be superior to all other liens and encumbrances on such Lot, except for (a) liens of ad valorem taxes, or (b) liens for all sums unpaid on a first Mortgage. All other Persons acquiring liens or encumbrances on any lot after this Declaration shall have been recorded in such records shall be deemed to consent that such liens or encumbrances shall be inferior to future hens for assessments, as provided hereim, whether or not prior consent is specifically set forth in the instraments creating such liens or encumbrances.
Each Owner shall be personally liable for his or her portion of each assessment coming due while he or she is the Owner of a Lot, and his or her grantee shall be jointly and severally liable for such portion thereof as may be due and payable at the time of conveyance; provided, however, the liability of a grantee for the unpaid assessments of its grantor shall not apply to any first Mortgagee taking title through foreclosure proceedings or deed in lieu of foreclosure.
Assessments shall be paid at a uniform rate per Lot in such manner and on such dates as may be fixed by the Board of Directors. Unless otherwise provided by the Board, the assessment shall be paid in annual installments.
BK:862 PG:231
Section 3. Certificate of Status Regarding Assessments.
After receiving a written request thereon, the Association or its agent, shall furnish the requesting party a signed certificate setting forth:
1. Whether the assessments on a specified Lot have been paid:
2. The amount then owing; and
3. The amount & date due for annual assessments, special assessments, or any other .
A properly executed certificate by the Association as to the status of
assessments on a Lot shall be binding upon the Association as of the date of
issuance. The Association may require the payment of a fee as a prerequisite to providing said certificate, up to a maximum amount as may be set by the Act. If the Association does not require payment of the prerequisite fee, the Association, or its agent, may subsequently charge a reasonable fee in an amount larger than the maximum amount set by the Act for the prerequisite fee. Additionally, at the time of providing said certificate, the Association or its agent may charge a rush fee, if said certificate was requested to be provided within 48 hours, and may also charge a
The Association, or its agent, may also charge extra fees unrelated to
providing the certificate, including but not limited to: providing copies of the governing documents, providing keys (or other facility access devices), providing completed lender questionnaires, and title transfer feex. The requesting party hereby agrees to be responsible for the payment, or collection and remittance, of all the above fees. If any of the above-related fees are not paid in full, they may be collected as provided above for the collection of assessments, including the filing of a
It shall be the duty of the Board to prepare a budget covering the estimated costs of operating the Association during the coming year, which shall include the amount of the annual assessment, and shail also include a contribution to a longterm maintenance, repair and replacement reserve account in accordance with a capital budget separately prepared. The Board shall cause the budget and the assessment to be levied against each Lot for the following year and to be delivered to each member at least thirty (30) days prior to the end of the current fiscal year.
The assessment shall become effective anless disapproved at a meeting by a Majority of the Total Association Vote. Notwithstanding the foregoing, however, in the event the membership disapproves the proposed budget or the Board fails for any reason so to determine the budget for the succeeding year, then and until such time as a budget shall have been determined, as provided herein, the budget in effect for the then current year shall continue for the succeeding year.
........
BK:862 PG:232
Each time a Lot is sold, or title is otherwise transferred to a third party (other than to the Owner's spouse), the Association may charge a one-time initiation fee in an amount to be set by the Board not to exceed the amount of the then current annual assessment. This fee shall be charged to any purchaser or transferee of a Lot, is in addition to the annual assessment, and shall not be considered an advance upon the payment of the annual assessment. A delinquent initiation fee may be collected in the same manner other assessments, including the filing of a lien.
Section 6. Special Assessments.
In addition to the other assessments authorized herein, the Association may levy special assessments any year for unexpected catastrophic losses or extraordinary maintenance, repair, and replacement costs that exceed current reserves. So loug as the total amount of special assessments allocable to each Lot does not exceed Three Hundred Dollars ($300.00) in any one fiscal year, the Board may impose the special assessment. Except as provided in Article VIL, Section 2, hereof regarding damage & destruction of common property, any special assessment which would canse the amount of special assessments allocable to any Lot to exceed this limitation shall be effective only if approved by a Majority of the Total Association Vote. Special assessments shall be paid as determined by the Board, and the Board may permit special assessments to be paid in installments extending beyond the fiscal year in which the special assessment is imposed.
Section 7. Specific Assessments.
The Board shall have the power to specifically assess pursuant to this Section as, in its discretion, it shall deem appropriate. Failure of the Board to exercise its authority under this Section shall not be grounds for any action against the Association or the Board of Directors and shall not constitute a waiver of the Board's right to exercise its authority under this Section in the future with respect to any expenses, including an expense for which the Board has not previously exercised its authority under this Section. Fines levied pursuant to Article XII, Section 1, of this Declaration and the costs of maintenance performed by the Association, which the Owner is responsible for under Article V, Section 2, of this Declaration, shall be specific assessments. The Board may also specifically assess Lots for the following Association expenses (except for expenses incurred for maintenance and repair of items which are the maintenance responsibility of the Association as provided herein):
(a) Expenses of the Association, which benefit less than all of the Lots may be specifically assessed equitably among all of the Lots, which are benefited according to the benefit, received.
(b) 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.
BK:862 PG:233
Section 8. Effect of Nonpayment of Assessments:
Remedies of the Association
Any assessments or installments thereof, which are not paid when due shall be delinquent, and shall incur a late charge in such amount as the Board may from time to time determine. If the assessment is not paid within thirty (30) days, a lien, as herein provided, shall attach and, in addition, the lien shall include the late charge, and interest in an amount as allowed by the Act on the principal amount due (including the late charge), all costs of collection, reasonable attorney fees actually incurred, and any other amounts provided or permitted by law, includiag charges for returaed checks due to insufficient funds or stopped payment.
In the event that the assessment remaias unpaid after sixty (60) days, the Association may, as the Board shall determine, institute suit to collect such amounts and/or to foreclose its lien. Each Owner, by acceptance of a deed or as a party to any other type of a conveyance, vests in the Association or its agents the right and power to bring all actions against him or her, personally, for the collection of such charges as a debt or to foreclose the aforesaid lien in the same manner as other liens for the improvement of real property. The lien provided for in this Article shall be in favor of the Association and shall be for the benefit of all other Owners. The Association, acting on behalf of the Owners, shall have the power to bid on the Lot at any foreclosure sale or to acquire, hold, lease, mortyage, or convey the same.
No Owner may waive or otherwise exempt themselves from liability for the assessments provided for herein, including, by way of illustration, but not limitation, abandonment of the Lot. No diminution or abatement of any assessment 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 the Bylaws, 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, the obligation to pay assessments being a separate and independent covenant on the part of each Owner.
Partial payments shail not constitute payment in full, unless agreed to in writing by the Association. Any partial payments shall be applied in the following order of priority: attorney's fees, collection costs, late charges, interest, then to the oldest principal amount for delinquent assessments. The Association may allow any assessments, fines, or fees to be paid in installments, and may charge a reasonable service fee thereon,
BK:862 PG=234 Article V
Maintenance
Section 1. Association's Responsibility.
The Association shall maintain and keep in good repair the Common Property. This maintenance shall include, without limitation, maintenance, repair, and replacement, subject to any insurance then in effect, of all landscaping and improvements situated on the Common Property. The Association shall maintain all entry features for the Community and street signs. The Association shall also maintain all drainage detention and retention areas, to the extent such areas are not maintained on an ongoing basis by a local governmental entity, and there is hereby reserved to the Association a blanket casement upon, across, over, and under all property within the Community for access, ingress, and egress as necessary to permit the Association to perform such maiutenance.
In addition, the Association shall have the right, but not the obligation, to maintain property not owned by the Association where the Board has determined that such maintenance would benefit all Owners. The foregoing maintenance shall be performed consistent with the Community-Wide Standard.
Section 2. Owner's Responsibility.
Except as provided in section 1 above, all maintenance of the Lot and all structures, parking areas, landscaping, and other improvements thereon shall be the sole responsibility of the Owner thereof, who shall maintain such Lot in a manner consistent with the Community-Wide Standard and this Declaration. If the Board of Directors of the Association determines that (a) any Owner has failed or refused to discharge properly any of such Owner's obligations with regard to the maintenance, repair, or replacement of items for which such Owner is responsible hereunder; or (b) that the need for maintenance, repair, or replacement, which is the responsibility of the Association hereunder, is caused through the willful or negligent act of an Owner, or the family, guests, lessees, or invitees of any Owner, and is not covered or paid for by insurance, in whole or in part, then the Association may perform the repair, replacement or maintenance and shall, except in the event of an emergency situation, give the Owner written notice of the Association's intent to provide such necessary maintenance, repair, or replacement, at the Owner's sole cost and expense.
BK=862 PG=235
The notice shall set forth with reasonable particularity the maintenance, repairs, or replacement deemed necessary. The Owner shall have ten (10) days within which to complete such maintenance, repair, or replacement, or, in the event that such maintenance, repair, or replacement is not capable of completion within a ten (10) day period, to commence such work which shall be completed withia a reasonable time. If any Owner does not comply with the provisions hereof, the Association may provide any such maintenance, repair, or replacement at such Owner's sole cost and expense, and all costs shall be added to and become a part of the assessment to which such Owner is subject and shall become a lien against the Lot.
Section 3. Party Walls and Party Fences.
(a) General Rules of Law to Apply. Each wall or fence built as a part of the original construction of the Lots which shall serve and separate any two (2) adjoining Lots shall constitute a party wall or fence and, to the extent not inconsistent with the provisions of this Section, the general rules of law regarding party walls and liability for property damage due to negligence or willful acts or omissions shall apply thereto.
(b) Sharing of Repair and Maintenance. The cost of reasonable repair and maintenance of a party wall or fence shall be shared by the Owners who make use of the wall or fence in equal proportions.
(c) Damage and Destruction If a party wall or fence is destroyed or damaged by fire or other casualty, then to the extent that such damage is not covered by insurance and repaired out of the proceeds of insurance, any Owner who has used the wall may restore it, and if the other Owner or Owners thereafter make use of the wall, they shall contribute to the cost of restoration thereof in equal proportious without prejadice, however, to the right of any such Owners to call for a larger contribution from the others under any rule of law regarding liability for negligent or willful acts or omissions.
(d) Right to Contribution Runs With Land. The right of any Owner to contribution from any other Owner under this Section shall be appurtenant to the land and shall pass to such Owner's successors-in-title.
BK:862 PG:236
Article VI
Use Restrictions and Rales
Section 1. GeneraL.
This Article, beginning at Section 2, sets out certain use restrictions, which must be complied with by all Owners and Occupants. These use restrictions may be amended only in the manner provided in Article XI, Section 4, regarding
amendment of this Declaration. The Board of Directors may, from time to time, without consent of the members, promuigate rules and regulations further defining said use restrictions, including Architectural guidelines. This authority shall include, but shall not be limited to, the right to limit the type and size and to set the maximum and minimum speeds of vehicles within the Community. The Board shall also have the authority to impose all other necessary traffic and parking regulations and to restrict the maximum noise levels of vehicles in the Community. A violation of Federal, State, County, or Municipal law on the part of any Owner, Occupant, or their Guests, or Lessees, that also negatively impacts other Owaers or the
commumity, shall also be considered a violation of this Declaration.
The Board of Directors may also, from time to time, without consent of the members, promulgate rules and regulations regarding the use of the Common Property. Such rules, regulations and use restrictions shall be distributed to all Owners and Occupants prior to the date that they are to become effective and shall thereafter be binding apon all Owners and Occupants.
Section 2. Use of Lots & Occup
All Lots shall be used for single- -family residential purposes exclusively. The maximam aumber of occupants per dwelling shall not exceed an average of 2 persons per bedroom. Home offices are allowed under the following conditions: a) the existence or operation of the business activity is not apparent or detectable by sight, sound, or smell from the exterior of the building,
b) the business activity does not involve visitation of the lot by empioyees, clients, customers, suppliers, or other business invitees, provided however this provision does not preclude the delivery of materials or items by United Postal Service or by other customary parcel delivery services (UPS, FedEX, etc.);
c) the business does not increase traffic to and from the property; and
d) the business activity does not increase the insurance premium paid by the association or otherwise negatively affect the ability of the association to obtain insurance coverage.
No other business or business activity shall be carried on or upon any Lot at any time except with the prior written approval of the Board. Leasing of a Lot shall not be considered a business, or business activity, but shall be subject to the
BK:862 PG=237
Section 3. Sions.
No sign of auy kind shall be erected by an Owner or Occupant within the Community without the written consent of the Board except such signs as may be required by legal proceedings, and not more than one (1) "For Sale" sign consistent with the Community-wide Standard, having a maximum area of four (4) square feet. Sigus for political candidates or ballot proposals, may be allowed without the written consent of the Board, but ouly if the Board first passes guidelines and/or restrictions regulating the use of said signs. The Board may also pass further gaidelines allowing temporary signs, such as for "yard sales".
The Board shall have the right to erect any reasonable and appropriate signs.
Section 4. Vebicles.
Vehicles shall not be parked on any portion of a Lot other than the driveway and the garage. Vehicles shall not be parked on the Common Property, except as determined pursuant to regulation by the Board. Vehicles shall not be parked in the street, except as needed for brief entertaining of guests. All Owners and Occupants shall obey all posted speed limits and traffic control devices when driving vehicles within the community. The term "vehicles," as used herein, shall include, without limitation, motor homes, boats, trailers, motorcycles, mini bikes, scooters, go-carts, trucks, campers, buses, vans, automobiles, and any other motorized devices that are capable of being ridden.
Section 5. Leasing Restrictions.
In order to assure a community of congenial Owners and thus protect the value of Lots within the community, and to assure that Lots qualify for eligibility on the secondary mortgage market, the leasing of a Lot, or any portion thereof, by any Owner (other than as provided herein for certain Mortgagees) shall be subject to the provisions contained in this Section.
A. Notice and Regulation. Any Owner intending to lease his Lot, or any Portion thereof, shall give written notice of suck intention to the Board, stating the name and address of the intended lessee, the terms of the proposed lease and such other information as the Board may reasonably require, The Board of Directors shall have the authority to make and enforce reasonable rules and regulations in order to enforce this provision, including the right to impose fines constituting a lien upon the Lot being leased.
B. Limitation on Total Leases. No more than twenty-five percent (25%) of the total number of Lots may be leased at any one time.
BK:862 PG=238
C. Required Lease Provisions. The Board of Directors may set the minimum lease term; however, said minimam term shall not be set for greater than one (1) year. All leases and lessees are subject to the provisions of the Declaration, Bylaws, Architectural Guidelines, and Rules. The Owner must make available to the tenant a copy of this Declaration. Any leases of a Lot, or a portion thereof, shall be deemed to contain the provisions of the below paragraphs lettered; (a) through (d), whether or not said provisions are expressly stated therein, and each Owaer covenants and agrees that any lease of his Lot shall contain the language of said provisions, and further, that if such language is not expressly contained thereia, then suck language shall be incorporated into the lease by existence of this covenant on the Lot. Any lessee, by occupancy of a Lot, agrees to the applicability of this covenant and its incorporation as part of the lease along width the following provisions:
(a) Lessee acknowledges that promises made to Lessor, as contained in Article VL, Section 5, Paragrapke C., Subparagraphs (a), (b), (c) and (d) of the Declaration of Covenants, Conditions and Restrictions for [SUBDIVISION] which govern the leased premises, and which provisions are incorporated within this lease agreement, are made for the benefit of the Association for the purpose of discharging Lessor's duties to the Association through Lessee's performance. In order to enforce those provisions made for the benefit of the Association, the Association may bring an action against Lessee for recovery of damages or for injunctive rellef, or may impose any other sanctions authorized by the Declaration and Bylaws, as they may be amended from time to time, or which may be available at law or equity, including but not limited to, all remedies available to a landlord upon breach or default of a lease agrecment by a lessee. Failure by the Association to enforce any of its rights shall in no event be decmed a waiver of the right to do so thereafter.
(b) Lessee shall comply strictly with all provisions of the Declaration, Bylaws, and with the administrative rules and regulations adopted by the Association pursuant thereto, as any of the foregoing may be lawfully amended from time to time. Lessee shall control the conduct of his or her family and guests in order to assure compliance with the foregoing and shall indemnify and hold Lessor and the Association harmless for any such person's failure to comply. Lessee acknowtedges the violation by Lessee or any occupant or person living with Lessee of any provision of the Declaration, Bylaws, or rules and regulations adopted thereunder shall constitute a default under this lease. Lessee further acknowledges that the Association has the right to act on its own behalf, or where necessary on behalf of Lessor, as Lessor's attorney-in-fact, to seek any remedies which are available to a landlord upon breach or default of a lease agreement by Lessee.
BK:862 PG:239
(c) Upon request by the Association, Lessee shall pay to the Association all unpaid annual assessments, special assessments, or fines, as lawfully determined and made payable during and prior to the terms of this lease agreement and any other period of occupancy by Lessee; provided, however, that Lessee need not make such payments to the Association in excess of, or prior to the due dates for, monthly rental payments unpaid at the time of the Association's request. All payments made to the Association shall reduce by the same amount Lessee's obligation to make monthly rental payments to Lessor under the Lease. If Lessee fails to comply with the Assoc ciation's request to pay assessments, Lessee shall pay to the Association all late or delinquent charges, fines, interest, and costs of collection, including, but not limited to, reasonable attorney's fees actually incurred, to the same extent Lessee would be required to make such payments to the Association if Lessee were the Owner of the Premises during the term of this lease agreement and any other period of occupancy by Lessee.
(d) Lessee's right shall be subject to all rights of the Association and any bona fide Mortgage or deed to secure debt which is now or may hereinafter be placed upon the Premises by Lessor.
D. Enforcen ent. For the purpose of enforcing the provisions of this Section, which shall be incorporated in the provisions of any leases of a Lot, each Owner, by acceptance of a deed or other conveyance of a Lot, hereby irrevocably appoints the Association, which may act by any oue of its xuthorized officers, as his attorney-infact, to enforce said provisions and to take action, at law or equity, which could be taken by said Owner against the Lessee should Lessee default in performance under the lease agreement. Each Owner hereby further acknowledges that this power of attorney shall ouly apply in the event of noucompliance by a Lessee with the provisions of Section 9, and that the Association, its Board of Directors, employees and agents shall be held harmless by each Owner in exercising the power of attorney herein granted to the Association.
E. Expenses of Eviction. In the event the Association proceeds to evict the Lessee, any costs, including attorney's fees actually incurred, and court costs, associated with the eviction shall be specifically assessed against the Lot, becoming a lien thereon subject to enforcement in accordance with Article VI of this
Deciaration, and shall become the personal obligation of the Owner thercof, such being deemed hereby as an expense which benefits the Lot and the Owner thereof.
F. Rights of Lessee. Any Lessee charged with a violation of the Declaration, Bylaws, or rules and regulations is entitled to the same rights to which the Owner is entitled as provided in the Association's Bylaws.
BK=862 PG=240
G. Rights of First Mortgagees. Notwithstanding anything to the contrary herein contained, the provisions of this Article shall not impair the right of any first Mortgagee to:
foreclose or take title to the Lot pursuant to remedies contained in any Mortgage;
(b) take a deed or assignment in lieu of foreclosure; or (c) sell, lease, or otherwise dispose of a Lot acquired by the Mortgagee.
Section 6. Occupants Boand.
All provisions of the Declaration and of any rules and regulations or use restrictions promulgated pursuant thereto which govern the conduct of Owners and which provide for sanctions against Owners shall also apply to all Occupants of any Lot even though Occupants are not specifically mentioned. Fines may be levied against Owners or Occupants. If a fine is first levied against an Occupant and is not paid timely, the fine may then be levied against the Owner.
Section 7. Animals and Pets.
No animals, livestock, or poultry of any kind may be raised, bred, kept, or permitted on any Lot, with the exception of dogs, cats, or other usual and common household pets in reasonable aumber, as determined by the Board; provided, however, those pets which are permitted to roam free, or, in the sole discretion of the Board, endanger the health, make objectionable noise, or constitute a nuisance or inconvenience to the Owners of other Lots or the owner of any property located adjacent to the Community may be removed by the Board. No pets shall be kept, bred or maintained for any commercial purpose. Dogs which are household pets shall at all times whenever they are outside a Lot be confined on a leash. Without prejudice to the Board's right to remove any such houschold pets, no household pet that has caused damage or injury may be walked in the Community. Occupants and Owners shall obey all governmental laws regarding pets and animals.
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Section 8. Nuisance.
It shall be the responsibility of each Owner and Occupant to prevent the development of any unclean, unhealthy, unsightly, or unkempt condition on his or her Lot. No Lot shall be used, in whole or in part, for the storage of any property or thing that will cause such Lot to appear to be in an unclean or untidy condition or that will be obnoxious to the eye; nor shall any substance, thing, or material be kept upon any Lot that will emit foul or obnoxious odors or that will cause any noise or other condition that will or might disturb the peace, quiet, safety, comfort, or serenity of the occupants of surrounding property. No noxious or offensive activity shall be carried on upon any Lot, nor shall anything be done thereon tending to cause embarrassment, discomfort, annoyance, or nuisance to any Person using any property adjacent to the Lot. There shall not be maintained any plants or animais or device or thing of any sort whose activities or existence in any way is noxious, dangerous, unsightly, unpleasant, or of & natare as may diminish or destroy the enjoyment of the Community. Without limiting the generality of the foregoing, no speaker, horn, whistle, siren, bell, amplifier or other sound device, except such devices as may be used exclusively for security purposes, shall be located, installed or maintained upon the exterior of any Lot unless required by law.
Section 9. Unsightly or Unkempt Conditions.
The pursuit of hobbies or other activities, including specifically, without limiting the generality of the foregoing, the assembly and disassembly of motor vehicles and other mechanical devices, which might tend to cause disorderly, unsightly, or unkempt conditions, shall not be pursued or undertaken in any part of the Community.
Section 10. Architectural Standards.
No exterior construction, alteration, addition, or erection of any nature whatsoever (including, without limitation, fences, poois, tennis courts, exterior lighting, tree houses and play equipment) shall be commenced or placed upon any part of the Community, except such as is originally installed by the developer, or as is approved in accordance with this Section, or as is otherwise expressly permitted herein. No exterior construction, addition, erection, or alteration shall be made unless and until the plans and specifications showing the nature, kind, shape, height, materials, and location shall have been submitted in writing to and approved by an Architectural Review Committee ("ARC"). The ARC may be established such that it is divided into two subcommittees, with one subcommittee having jurisdiction over modifications and the other having jurisdiction over new construction. The Board may employ architects, engineers, or other Persons as it deems necessary to enable the ARC to perform its review. The ARC may, from time to time, delegate any of its rights or responsibilities hereunder to one or more duly licensed architects or other qualified Persons, which shail have the full authority to act on behalf or the committee for all matters delegated. The Board, or its designees, may promuigate written guidelines for the exercise of this review. The Board shail appoint the ARC, and may remove any member of the ARC, with or without cause.
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The ARC may withhold approval for any reason, including purely aesthetic considerations, and it shall be entitled to stop any construction in violation of these restrictions. An Owner may submit a written appeal to the Board from a decision of the ARC within 15 days of the denial. Any member of the Board or its designee or the representatives thereof shall have the right, during reasonable hours, to enter upou any Lot to inspect any Lot and any improvements thereon for the purpose of ascertaining whether or not these restrictive covenants have been or are being complied with. Such Person or Persons shall not be deemed guilty of trespass by reason of such entry. In the event the Board or its designee fails to approve or to disapprove such design and location within sixty (60) days after the plans and specifications have been submitted to it, approval will not be required, and this Section will be deemed to have been fully complied with. The ARC or Board are entitled to stop any construction in violation of these restrictions.
All activities commenced pursuant to plans, which have been deemed approved shall be consistent with such plans. As a condition of approval under this Section, each Owner, on behalf of such Owner and such Owner's successors-in-interest shall assume all responsibilities for maintenance, repair, replacement, and insurance to and on any change, modification, addition, or alteration. In the discretion of the Board or its designee, an Owner may be made to verify such condition of approval by a recordable written instrument acknowledged by such Owner on behaif of suck Owner and such Owner' successors-in-interest.
PLANS AND SPECIFICATIONS ARE NOT APPROVED FOR ENGINEERING OR STRUCTURAL DESIGN OR QUALITY OF MATERIALS, AND BY APPROVING SUCH PLANS AND SPECIFICATIONS NEITHER THE BOARD, ITS DESIGNEE, NOR THE ASSOCIATION ASSUMES LIABILITY OR RESPONSIBILITY THEREFOR, NOR FOR ANY DEFECT IN ANY STRUCTURE CONSTRUCTED FROM SUCH PLANS AND SPECIFICATIONS, NEITHER THE ASSOCIATION, THE BOARD, THE BOARD'S DESIGNEE, NOR THE OFFICERS, DIRECTORS, MEMBERS, EMPLOYEES, AND AGENTS OF ANY OF THEM SHALL BE LIABLE IN DAMAGES TO ANYONE SUBMITTING PLANS AND SPECIFICATIONS TO ANY OF THEM FOR APPROVAL, OR TO ANY OWNER OF PROPERTY AFFECTED BY THESE RESTRICTIONS BY REASON OF MISTAKE IN JUDGMENT, NEGLIGENCE, OR NONFEASANCE ARISING OUT OF OR IN CONNECTION WITH THE APPROVAL OR DISAPPROVAL OR FAILURE TO APPROVE OR DISAPPROVE ANY SUCH PLANS OR SPECIFICATIONS. EVERY PERSON WHO SUBMITS PLANS OR SPECIFICATIONS AND EVERY OWNER AGREES THAT SUCH PERSON OR OWNER WILL NOT BRING ANY ACTION OR SUIT AGAINST THE ASSOCIATION, THE BOARD, THE BOARD'S DESIGNEE, OR THE OFFICERS, DIRECTORS, MEMBERS, EMPLOYEES, AND AGENTS OF ANY OF THEM TO RECOVER ANY DAMAGES AND HEREBY RELEASES, REMISES, QUITCLAIMS, AND COVENANTS NOT TO SUE FOR ALL CLAIMS, DEMANDS, AND CAUSES OF ACTION ARISING OUT OF OR IN CONNECTION WITH ANY JUDGMENT, NEGLIGENCE, OR NONFEASANCE AND HEREBY WAIVES THE PROVISIONS OF ANY LAW WHICH PROVIDES THAT A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS, DEMANDS, AND CAUSES OF ACTION NOT KNOWN AT THE TIME THE RELEASE IS GIVEN.
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Section 11. Satellite Dishes & Antennas.
No exterior antennas, satellite disbes or multi-channel multi-port distribution service larger than one meter in length or dismeter shall be place, allowed, or maintained upon any portion of a Lot. All above referenced devices measuring one meter or less shall be installed in accordance with FCC rules and regulations, and shall not be placed in plain view from the street, unless it is the only positioning that allows for reasonable reception of a signal. However, the Board reserves the right to (but shall not be obligated to) erect a master autenna, satellite dish or other similar master system for the benefit of the Commanity.
Section 12. Gardens. Basketball Goals. Etc.
Grass, ornamental plants and shrubbery (and only the foregoing) may be planted in the front or side yard of any Lot. All other planting may be done oaly with prior written approval of the Board or its designee or in accordance with the guidelines previously established by the Board or its designee. Over seeding of fescue lawns and sodding of lawns with Bermuda or zoysia grasses shall not require prior approval pursuant to this section. No vegetable garden, hammocks, statuary, or recreational equipment may be placed, erected, allowed or maintained upoa any Lot without the prior written consent of the Board or its designee. This provision shall not, however, apply to basketball goals (either permanent or mobile), which may be installed pursuant to any rales or guideiines of the Association, after the type and location, have been previously approved in writing by the Board or its desigaee.
No trees, which are left on the Lot at closing shall be removed without the express consent of the Board or its designee, except for (a) diseased or dead trees; and (b) trees needing to be removed to promote the growth of other trees.
Notwithstanding Article VI, Section 10 above, the following exterior lighting may be installed without the necessity of obtaining the prior approval of the Board or its designee: (a) seasonal decorative lights during a holiday season (which must be taken down within a time as determined by rule of the Board; (b) illumination of other than the front or side yards of a Lot; and (c) other lighting originally installed by the developer. Plans for all other exterior lighting must be submitted and approved in accordance with Article VI, Section 10 hereof. Decorative post lights will not be approved unless they conform to established street lighting.
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Section 15. Drainage.
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. No Owner or Occupant of any Lot may obstruct or rechannel the drainage flows after the location and installation of drainage swells, storm sewers, or storm drains. The Association reserves the right to prepare sloping banks, cut or fill, on a three (3) to one (1) slope on all streets and roads. The Association hereby reserves a perpetual easement across all Community property for the purpose of altering drainage and water flow. Rights exercised pursuant to such reserved easement shall be exercised with a minimum of interference to the quiet enjoyment of affected property, reasonable steps shall be taken to protect such property, and damage shall be repired by the Person causing the damage at its sole expense.
Section 16. Sight Distance at Intersections.
All property located at street intersections shall be so landscaped as to permit safe sight across the street corners. No fence, wall, hedge, or shrub planting shall be placed or permitted to remain at any corner where this would create a traffic or sight problem.
Section 17. Clotheslines. Garbage Cans. Woodpiles, Etc.
All clotheslines, garbage cans, woodpiles, and other similar items shall be located or screened so as to be concealed from view of neighboring Lots, streets, and property located adjacent to the Lot. All rubbish, trash, and garbage shall be regularly removed from the Lot and shall not be allowed to accumulate thereon. Notwithstanding the foregoing, the Association reserves the right to provide and
Section 18. Subdivision of Lot.
No Lot shall be subdivided or its boundary lines changed except with the prior written approval of the Board or its designee. Any suck division, boundary line change, or replatting shail not be in violation of the applicable subdivision and zoning regulations.
Section 19. Guns.
The use of firearms in the Community is prohibited. The term "firearms" includes &BBr guns, pellet guns, and small firearms of all types.
Section 20. Solar Devices.
No artificial or man-made device which is designed or used for collection of or heating by solar energy or other similar purposes shail be placed, allowed, or maintained upon any portion of the Community, including any Lot, without the prior written consent of the Board or its designee.
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Section 21. Fences.
No fence or fencing type barrier of any kind shall be placed, erected, allowed, or maintained upon any portion of the Community, including any Lot, without the prior written consent of the Board or its designee. Under no circumstances shall any fence be placed, erected, allowed or maintained closer to any street than the rear of the residence constracted on such Lot. The Board or its desigace may issue guidelines detailing acceptable fence styles or specifications, bat in no event may a chain link fence or hog wire fence be approved.
Section 22. Exterior Colors.
The exterior of all improvements, including, without limitation, residences, constructed, erected, allowed, or maintained upon any Lot must be painted or repainted in a color as approved by the Board or its designee.
Section 23. Mailboxes.
All mailboxes and mailbox posts shall be of a type and color as determined from time to time by the Board or its desiguee.
Section 24. Detached Structures
No detached structure shall be placed, erected, allowed, or maintained upon any Lot without the prior written consent of the Board or its designee. All detached structures must be consistent in design materials and color with the dwelling on the Lot.
Section 25. Entry Features and Street Signs.
Owners shail not alter, remove or add improvements to any entry features or street signs on any Lot, or any part of any easement area associated therewith without the prior written consent of the Board or its designee.
Section 26. Above Ground Pools.
Above ground swimming pools shall not be permitted in the Community. The Board may pass rules and regulations allowing baby pook.
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Articie VII
Insurance and Casualty Losses
Section 1. Insurance.
The Association's Board of Directors or its duly authorized agent shall have
the authority to and shall obtain insurance for all insurable improvements located
on the Common Property or required to be maintained by the Association under
Article V, Section 1. hereof. This insurance shall cover loss or damage by fire or
other hazards, including extended coverage, vandalism, and malicious mischief and
shall be in an amount sufficient to cover the full replacement cost of any repair or
reconstruction in the eveat of damage or destruction from any such hazard.
Alternatively, the Board may purchase "all risk" coverage in like amounts.
If available at reasonable cost, as determined in the sole discretion of the
Board, the Board shall obtain a public liability policy applicable to the Common
Property insuring the Association and its members for all damage or injury caused
by the negligence of the Association or any of its members or agents. The public
liability policy shall have a combined single limit of at least One Million Dollars
(S1,000,000.00). If available at reasonable cost, as determined in the sole discretion
of the Board, the Board shall also obtain directors' and officers' liability insurance.
Premiums for all insurance shall be common expenses of the Association. The
policies may contain a reasonable deductible, and the amount thereof shall be added
to the face amount of the policy in determining whether the insurance at least equals
the full replacement cost.
All such insurance coverage obtained by the Board of
Directors shall be written in the name of the Association, as trustee, for the
respective benefited parties, as further identified in subparagraph (b), below. Such
insurance shall be governed by the provisions hereinafter set forth:
(a) All policies shall be written with a company authorized to
do business in Georgia.
(b) Exclusive authority to adjust losses under policies obtained
by the Association shail 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.
(c) In no event shall the insurance coverage obtained and
maintained by the Association's Board of Directors hereunder be brought Into
contribution with insurance purchased by individual Owners, Occupants, or their
Mortgagees, and the insurance carried by the Association shall be primary.
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(d) All casualty insurance policies shall have an inflation guard endorsement and an agreed amount endorsement if these are reasonably available and all insurance policies shall he reviewed annually by one or more qualified Persons, at least one of whom must be in the real estate industry and familiar with construction in the county where the Community is located.
(e) The Association's Board of Directors shall be required tomake every reasonable effort to secure insurance policies that will provide for the following:
(i) a waiver of subrogation by the insurer as to any claims against the Association's Board of Directors, its manager, the Owners and their respective tenants, servants, agents, and guests;
(il) a waiver by the insurer of its rights to repair and reconstruct instead of paying cash;
(lil) that no policy may be cancelled, subjected to nonrenewal, invalidated, or suspended on account of any one or more individual Owners;
(iv) that no policy may be cancelled, subjected to nonrenewal, invalidated, or suspeaded on account of any defect or the conduct of any director, officer, or employee of the Association or its duly authorized manager without prior demand in writing delivered to the Association to cure the defect or to cease the conduct and the allowance of a reasonable time thereafter withia which a cure may be effected by the Association, its manager, any Owner or Mortgagee;
(v) that any "otker insurance" clause in any policy exclude individual Owners' policies from consideration; and
(vi) that no policy may be cancelled, subjected to nonrenewal, or substantially modified without at least ten (10) days' prior written notice to the Association.
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In addition to other insurance coverage required by this Section, the Board shall obtain workers compensation insurance, if and to the extent necessary to satisfy the requirements of applicable law, and, if available at reasonable cost, as determined in the sole discretion of the Board, a fidelity bond or employees dishonesty coverage covering directors, officers, employees, and other Persons handling or responsible for the Association's funds. The amount of fidelity or employees dishonesty coverage, if obtained, shail be determined in the directors' best business judgment. Such coverage if obtained, shall contain a waiver of all defenses based upon the exclusion of Persons serving without compensation and shall not be subject to cancellation, noarenewal or substantial modification without at least ten (10) days' prior written notice to the Association. The Association shall also obtain construction code endorsements, steam boiler coverage, and flood insurance, if and to the extent necessary to satisfy the requirements of The Federal Home Loan Mortgage Corporation or the Federal National Mortgage Association, the U.S. Department of Veterans Affairs (VAN) or the U.S. Department of Housing and Urban Development (MUD).
Section 2. Damage and Destruction Common Property.
(a) In General. Immediately after the damage or destruction by fire or other easualty to all or any portion of any improvement 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 ander such insurance and obtain reliable and detailed estimates of the cost of repair or reconstruction of the damaged or destroyed property. Repair or reconstruction, as used in this Section, means repairing or restoring the property to substantially the same condition and location that existed prior to the fire or other casuaity allowing for any changes or improvements necessary to comply with applicable building codes. The Board of Directors shall have all enforcement powers specified in Article XII, Section 1, of this Declaration necessary to enforce this provision.
(b) Repair and Reconstruction. Any damage or destruction to property required to be covered by insurance written in the name of the Association shall be repaired or reconstructed unless, within sixty (60) days after the casualty, at least seventy-five percent (75%) of the Total Association Vote otherwise agree. 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 such period, then the period shall be extended until such information shall be made available; provided, however, such extension shall not exceed sixty (60) days. No Mortgagee shall have the right to participate in the determination of whether damage or destruction shall be repaired or reconstructed.
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If the damage or destruction for which the insurance proceeds are paid is to be repaired or reconstructed and such proceeds are not sufficient to defray the cost thereof, the Board of Directors shall, without the necessity of a vote of the Association's members, levy a special assessment against all Owners in proportion to the number of Lots owned by such Owners. Additional assessments may be made in like manner at any time during or following the completion of any repair or reconstruction. If the funds available from insurance exceed the costs of repair or reconstruction or if the improvements are not repaired or reconstructed, such excess shall be deposited to the benefit of the Association.
In the event that it should be determined by the Association in the manner described above that the damage or destruction shall not be repaired or recoustructed and no alternative improvements are authorized, then and in that event the property shall be restored to its natural state and maintained as an undeveloped portion of the Community by the Association in a neat and attractive condition.
Section 3. Damage and Destruction - Lots.
The damage or destruction by fire or other casualty to all or any portion of any improvement on a Lot shall be repaired by the Owner thereof within seventy-five (75) days after such damage or destruction or, where repairs caunot be completed within seventy-five (75) days, they shall be commenced within such peried and shall be completed within a reasomable time thereafter. Alternatively, the Owner may elect to demolish all improvemeats on the Lot and remove all debris there from within seventy-five (75) days after suck damage or destruction. In the event of noncompliance with this provision, the Board of Directors shall have all enforcement powers specified in Article XII, Section 1 of this Declaration.
Section 4. Insurance Deductible.
The deductible for any casualty insurance policy carried by the Association shall, in the event of damage or destruction, be allocated among the Persons who are responsible hercunder, or under any declaration or contract requiring the Association to obtain such insurance, for maintenance of the damaged or destroyed property.
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Article VIII
Condemnation
Whenever all or any part of the Common Property shall be taken (or conveyed in lieu of and under threat of condemnation by the Board, acting on its behalf or on the written direction of all Owners of Lots subject to the taking, if any) by any authority having the power of condemnation or eminent domain, the Association shail represent the Owners. The award made for such taking shall be payable to the Association as trustee for all Owners. The provisions of Article VII, Section 2, above, applicable to Common Property improvements damage or destruction, shall govern replacement or restoration and the actions to be taken in the event that the improvements are not restored or replaced.
Articie IX
Annexation of Additional Property
Section 1. Annexation.
Subject to the cousent of the owner the reof, and upon the affirmative vote or written consent, or any combination thereof, of Owners of at least two thirds (2/3) of the Lots, the Association may annex other real property to the provisions of this Declaration and the jurisdiction of the Association by filing for record in the Office of the Clerk of the Superior Court of the county in whick the property to be annexed is located a Supplementary Declaration describing the property being annexed. Any such Supplementary Declaration shall be signed by the President and Secretary of the Association, and any such annexation shall be effective upon the filing for record of such Supplementary Declaration, unless a later effective date is provided therein.
Article X
Morteage Provisions
The following provisions are for the benefit of holders of first Mortgages on Lots in the Community. The provisions of this Article apply to both this Declaration and to the Bylaws, notwithstanding any other provisions contained therein.
Section 1. Notices of Action.
An institutional holder, insurer, or guarantor of a first Mortgage, who provides written request to the Association (such request to state the name and address of such holder, insurer, or guarantor and the Lot number), (therefore becoming an 'eligible holder), will be entitled to timely written notice of:
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(a) Any condemnation loss or any casualty loss which affects a material portion of the Community or which affects any Lot on which there is a first Mortgage held, insured, or guaranteed by such eligible holder;
(b) Any delinquency in the payment of assessments or charges owed by an Owner of a Lot subject to the Mortgage of such eligible holder, where such delinquency has continued for a period of sixty (60) days; provided, however, notwithstanding this provision, any holder of a frst Mortgage, upon request, is entitled to written notice from the Association of any default in the performance by an Owner of a Lot of any obligation under the Declaration or Bylaws of the Association which is aot cured within sixty (60) days;
(c) Any lapse, cancellation, or material modification of any insurance policy maintained by the Association; or
(d) Any proposed action, which would require the consent of a specified percentage of Mortgage holders.
No provision of this Declaration or the Bylaws gives or shall be coustrued as giving any Owner or other party priority over any rights of the first Mortgagee of any Lot in the case of distribution to such Owner of insurance proceeds or condemnation awards for losses to or a taking of the Common Property.
Section 3. Notice to Association.
Upon request, each Lot Owner shall be obligated to furnish to the Association the name and address of the holder of any Mortgage encumbering such Owner's Lot.
Section 4. Amendments bv Board.
Should the Federal National Mortgage Association, the Federal Home Loan Mortgage Corporation, HUD or VA subsequently delete any of their respective requirements, which necessitate the provisions of this Article or make any such requirements less stringent, the Board, without approval of the Owners, may cause an amendment to this Article to be recorded to reflect such changes.
Section 5. Applicability of Article X.
Nothing contained in this Article shall be construed to reduce the percentage vote that must otherwise be obtained under the Declaration, Bylaws, or Georgia law for any of the acts set out in this Article.
Section 6. Failure of Mortpagee to Respond.
Any Mortgagee who receives a written request from the Board to respond to or consent to any action shall be deemed to have approved such action if the Association does not receive a written response from the Mortgagee within thirty. (30) days of the date of the Association's request.
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Article XI
Easements
Section 1. Easements for Encroachment and Overhang.
There shall be reciprocal appurtenant easements for encroachment and overhang as between each Lot and such portion or portions of the Common Property adjacent thereto or as between adjacent Lots due to the unintentional placement or settling or shifting of the improvements constracted, reconstructed, or altered thereon (in accordance with the terms of this Declaration) to a distance of not more than five (5) feet, as measured from any point on the common boundary between each Lot and the adjacent portion of the Common Property or as between adjacent Lots, as the case may be, along a line perpendicular to such boundary at such point; provided, however, in no event shall an easement for encroachment exist if such encroachment occurred due to willful conduct on the part of an Owner, teuant, or the Association.
Section 2. Ensements for Use and Enjoyment.
(a) Every Owner of a Lot shall have a right and easement of ingress and egress, use and enjoyment in and to the Common Property, which shall be appurtenant to and shall pass with the title to his Lot, subject to the foilowing provisions:
(i) the right of the Association to charge reasonable admission and other fees for the use of any portion of the Common Property, to limit the number of guests of Lot Owners and tenants who may use the Common Property, and to provide for the exclusive use and enjoyment of specific portions thereof at certain designated times by an Owner, his family, tenants, guests, and invitees;
(ii) the right of the Association to suspend the voting rights of a Lot Owner and the right of an Owner to use the recreational facilities available for use by the Community, if any, for any period during which any assessment agaiast his Lot which is hereby provided for remains unpaid; and, for a ressonable period of time for an infraction of the Declaration, Bylaws, or rules and regulations;
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(ill) the right of the Association to borrow money for the purpose of improving the Common Property, or any portion thereof, or for construction, repairing or improving any facilities located or to be incated thereon, and give as security for the payment of any such loan a Mortgage conveying all or any portion of the Common Property; provided, however, the lien and encumbrance of any such Mortgage given by the Association shall be subject and subordinate to any rights, interests, options, easements and privileges herein reserved or established for the benefit of the Association, or any Lot or Lot Owner, or the holder of any Mortgage, irrespective of when executed, given by the Association or any Lot Owner encumbering any Lot or other property located withia the Community (Any provision in this Declaration or in any such Mortgage given by the Association to the contrary notwithstanding, the exercise of any rights therein by the holder thereof in the event of a default there under shall not cancel or terminate any rights, easements or privileges herein reserved or established for the benefit of the Association, or any Lot or Lot Owner, or the holder of any Mortgage, irrespective of when executed, given by the Association or any Lot Owner encumbering any Lot or other property located within the Community.) (No such Mortgage shall be effective unless an instrument agreeing to such Mortgage has been approved by Owners of at least two-thirds (2/3) of the Lots; and
(iv) the right of the Association to dedicate or transfer all or any portion of the Common Property subject to such conditions as may be agreed to by the members of the Association. No such dedication or transfer shall be effective unless an instrument agreeing to such dedication or transfer has been approved by the Association and Owners representing at least two-thirds (2/3) of the Total Association Vote.
(b) Any Lot Owner may deiegate his or her right of use and enjoyment in and to the Common Property and facilities located thereon to the members of his family, his tenants and guests and shall be deemed to have made a delegation of all such rights to the Occupants of such Owner's Lot if leased.
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Section 3. Easements for Utilities.
There is hereby reserved to the Association blanket easements upon, across, above and under all property within the Community for access, ingress, egress, installation, repairing, replacing, and maintaining all utilities serving the Community or any portion thereof, including, but not limited to, gas, water, sanitary sewer, telephone and electricity, as well as storm drainage and any other service sach as, but not limited to, a master television antenna system, cable television system, or security system which the Association might decide to have installed to serve the Community. It shall be expressly permissible for the Association, or the its designee, to install, repair, replace, and maintain or to authorize the installation, repairing, replacing, and maintaining of such wires, conduits, cables and other equipment related to the providing of any such utility or service. Should any party furnishing any such utility or service request a specific license or easement by separate recordable document, the Board shall have the right to grant such easement.
Section 4. Easements for Association Maintenance.
There is hereby reserved to the Association a perpetual easement across such portions of the Community, determined in the sole discretion of the Association, as are necessary to allow for the maintenance required under Article V. Such maintenance shall be performed with a minimum of interference to the quiet enjoyment to Owners' property, reasonable steps shall be taken to protect such property, and damage shall be repaired by the Person causing the damage at its sole expense.
Section 5. Easements for Maintenance and Repair.
There shall be reciprocal appartenant essements between adjacent Lots for the purpose of maintaining or repairing the improvements, including, without limitation, landscaping located on each Lot which easement shall extend to a distance of not more than five (5) feet as measured from any point on the common boundary between the Lots and along a line perpendicular to such boundary at such point. The easement shall be used only for such period of time as is reasonably necessary in order to complete the needed maintenance or repair.
The Lot Owner exercising this easement right shall be liable for the prompt repair of any damage to the Lot over which this easement is exercised which is caused by the maintenance or repair work. The damaged portions of such Lot shall be restored to substantially the same condition as existed prior to the damage.
BK:862 PG:255 Section 6. Easement for Entry.
Article XII, Section 2 hereof, the Board shall have the right, but shall not be obligated, to enter upon any property within the Community for emergency, security, and safety reasons, which right may be exercised by the manager, and all policemen, firemen, ambulance personnel, and similar emergency personnel in the performance of their respective duties. Except in au emergency situation, entry shall only be during reasonable hours and after notice to the Owner, and the entering party shall be responsible for any damage caused. This right of entry shall include the right of the Board to enter to cure any condition, which may increase the possibillty of a fire, slope erosion, or other hazard in the event an Owner or Occupant fails or refuses to cure the condition upon request by the Board.
Section?. Easements for Eatry Features and Strect Signs.
There is hereby reserved to the Association an easement over and upon each Lot for ingress, egress, installation, construction, landscaping and maintenance of entry features and street signs for the Community. The easement and right herein reserved shall include the right to cut, remove and plant trees, shrubbery, flowers and other vegetation around all entry features and the right to grade the land under and around the entry features.
Section &. Easements for Use and Maintenance of Lake:
Pedestrian Easement.
(a) There is hereby reserved to the Association a perpetual easement across such portions of the Community, determiued in the sole discretion of the Association, as is reasonably required for maintenance of any lake, lakebed or shoreline that is located within the Community. Such maintenance shall be performed with a minimum of interference to the quiet enjoyment of the property adjacent to the lake, reasonable steps shall be taken to protect the Community, and damage to the Community shall be repaired by the Person causing the damage at is
(b) There is hereby reserved to the Association a perpetual pedestrian easement for access to any lake within the Community for the Benefit of the Association and Owners if and to the extent any such easement is shown on any plat for the Community recorded by the Association, or the prior Declarant, in the land records of the county where the property is located.
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Section 9. Easements for Common Drives.
There is reserved a joint and reciprocal easement in perpetuity for vehicalar and pedestrian traffic in, upon, over, and across those areas, if any, shown on any plat for the Community recorded by the Association, or prior Deciarant, in the land records of the county where the Community is located as a common drive (or such similar or equivalent language as would indicate that such area is a common drive among two or more Lots) (hereinafter referred to as a "Common Drive"). These easements shall be for the benefit of any Owner of a Lot upon which a Common Drive is located and shall be for access to and ingress and egress to and from such Owner's Lot by such Owner, and his or her family members, invitees, and designees, in, upon, over, and across the Common Drive, or portion thereof, located on such Owner's Lot. Any Common Drive shall continue to be used for this purpose by the Owners of the Lots upon which such Common Drive is located and by the subsequent Owners and successors-in-title to such Lots. In connection with the reservation of these easements, it is acknowledged and agreed that the Owner of 3 Lot burdened by these easements will be required to utilize the easements for access to and ingress and egress to and from such Owner's Lot and that such easements are critical to the 'future use and enjoyment' of such Owner's Lot. No Owner shall be allowed to change, alter or diminish the rights of an Owner of a Lot burdened by these easements to the use and enjoyment of the Common Drive located on sach Owner's Lot.
Each Common Drive shall be cleaned, maintained, repaired and replaced as a joint effort by the Owners of the Lots upon which such Common Drive is located. This responsibility shall be shared on au equai basis by each of said Owners, notwithstanding the respective use of the Common Drive by the Owners of the Lots upon which the Common Drive is located. In order to protect the value of the respective Lots and to insure the proper use and enjoyment of the respective Lots, the Owner of a Lot upon which a Common Drive is located shall have the full and unrestricted right to cause the cleaning, maintenance, repair and replacement to be made to the Common Drive located on such Owner's Lot as may be necessary to insure that such Common Drive is maintained in good, proper, and functional condition and appearance. The failure by any Owner of a Lot upon which such Common Drive is located to pay when due his or her portion of any such expense incurred by another Owner of Lot upon which such Common Drive is located for cleaning, maintenance, repair and repiacement of such Common Drive shall be a violation of the covenants and restrictions set forth in this Declaration and such nonpaying Owner shall be liable to the Owners who performed such cleaning, maintenance, repair, and repiacement for such amount plus costs and expenses, including reasonable attorneys fees actually incurred by such Owner in collecting said amount.
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Article XII
General Provisions
Section 1. Enforcement.
Each Owner and every Occupant of a Lot shall comply strictly with the Bylaws, the rules and regulations, the use restrictions, as they may be lawfully amended or modified from time to time, and with the covenants, conditions, and restrictions set forth in this Declaration and in the deed to his or her Lot, if any. The Board of Directors may impose fines or other sanctions, which shall be collected as provided herein for the collection of assessments, and in compliance with Owner rights as shall be outlined in the Bylaws, or adopted by Board, including the right to cure the violation and right of appeal.
Failure to comply with this Deciaration, the Bylaws or the rules and regulations shall be grounds for an action to recover sums due for damages or injunctive relief, or both, maintainable by the Board of Directors, on behalf of the Association, or, in a proper case, by an aggrieved Owner. Failure by the Association or any Owner to enforce any of the foregoing shall in no event be deemed a waiver of the right to do so thereafter. The Board shall have the right to record in the appropriate land records a notice of violation of the Declaration, Bylaws, rules and regulations, or use restrictions and to assess the cost of recording and removing such notice against the Ower who is responsible (or whose Occupants are responsible) for violzting the foregoing.
Section 2. Self-Help.
In addition to any other remedles provided for herein, the Association or its duly authorized agent shall have the power to enter upon a Lot or any portion of the Common Property to abate or remove, using such force as may be reasonably necessary, any structure, thing or condition which violates this Declaration, the Bylaws, the rules and regulations, or the use restrictions. Unless an emergency situation exists, the Board shall give the violating Lot Owner ten (10) days' written notice of its intent to exercise self-help. Notwithstanding the foregoing, vehicles may be towed from common property after reasonable notice. All costs of self-- help, including interest in the amount of 10% and reasonable attorney's fees actually incurred shall be assessed against the violating Lot Owner and shall be collected as provided for herein for the coilection of assessments. Any contractor, subcontractor, agent, employee, or other invitee of an Owner, who fails to comply with the terms of the covenants, rules, or guidelines, may be exciuded by the Board from the Community, subject to the notice procedures contained in Article III, Section 20 of the Bylaws. In such event, neither the Association, the ARC, the Board, nor the officers, directors, members, agents, and employees of any of them, shall be held liable to any Person due to the exercising of the rights granted herein.
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Section 3. Duration.
The covenants and restrictions of this Declaration shall run with and bind
the Community, and shall inure to the beneft of and shall be enforceable by the
Association or any Owner, their respective legal representatives, heirs, successors,
and assigns, perpetually to the extent permitted by law; provided, however, so long
as Georgia law limits the period during which covenants restricting lands to certain
uses may run, any provision of this Declaration affected thereby shall run with and
bind the land so long as permitted by such law, after which time any such provisions
shall be automatically extended for successive periods of twenty (20) years, unless
such extension is disapproved by at least two-thirds (2/3) of the Total Association
Vote. A written instrument reflecting disapproval must be recorded within the year
immediately preceding the beginning of a ten (10) year renewal period.
Every purchaser or grantee of any interest (including, without limitation, a
security interest) in any real property subject to this Declaration, by acceptance of a
deed or other conveyance therefore, thereby agrees that such provisions of this
Deciaration may be extended and renewed as provided in this Section.
Section 4. Amendment.
This Declaration may be amended upon the affirmative vote or written
consent, or any combination thereof, of the eligible voting Owners in good standing,
of at least two-thirds (2/3) of the Lots.
The Common Property shall remain undivided, and no Lot Owner nor any
other Person shall bring any action for partition or division of the whole or any part
thereof without the written consent of all Owners of all portions of the property
located within the Community and without the written consent of all holders of all
Mortgages encumbering any portion of the property, including, but not necessarily
limited to, the Lots located within the Community.
Section 6. Gender and Grammar.
The singular, wherever used herein, shall be construed to mean the plural,
when applicable, and the use of the masculine pronoun shall include the neuter and
Section 7Severability.
Whenever possible, each provision of this Deciaration shall be interpreted in
such manner as to be effective and valid, but if the application of any provision of
this Declaration to any Person or to any property shall be prokibited or held invalid,
such prohibition or invalidity shall not affect any other provision or the application
of any provision which can be given effect without the invalid provision or
application, and, to this end, the provisions of this Declaration are declared to be
severable.
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Section 8. Captions.
The captions of each Article and Section hereof, as to the contents of each Article and Section, are inserted only for convenience and are in no way to be construed as defining, limiting, extending, or otherwise modifying or adding to the particular Article or Section to which they refer.
Section 9. Preparer.
This Amended and Restated Declaration was prepared by Michael Rome, Esq. of Rome & Associates, P.C., 30 Whitlock Place, Suite 101, Marietta, Georgia 30064.
Section 10. Perpetuities.
If any of the covenants, conditions, restrictions, or other provisions of this Declaration shall be considered unlawful, void, or voidable for violation of the rule against perpetuities, then each automatic renewal of said covenants as per Section 3 of this Article, shall be considered a new restated Declaration, containing all the same terms as the prior Declaration.
Section 11. Indemnification.
In accordance with the Georgia Nonprofit Corporation Code and to the full extent allowed, the Association shall indemnify every Person who was or is a party or who is threatened to be made a party to any threatened, pending, or completed action, suit, or proceeding, whether civil, criminal, administrative, or lavestigative (other than an action by or in the right of the Association), by reason of the fact that such Person is or was serving as a director or officer of the Association against any and all expenses, including attorneys' fees, imposed upon or reasonably incurred in connection with any action, suit, or proceeding, if such Person acted in a manner reasonably believed to be in or not opposed to the best interests of the Association and, with respect to any criminal action or proceeding, had no reasonable cause to believe his conduct was unlawful. Any indemaification hereunder shall be made by the Association only as authorized in a specific case upon a determination that indemnification of the Person is proper under the circumstances.
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Section 12. Books and Records.
(a) Inspection by Members and Mortgagees. Books and records of the Association may be inspected and copied pursuant to the provisions of Section 14-3-1602 of the Georgia Nonprofit Corporation Act by any member of the Association or by their duly appointed representative, and by holders, insurers, or guarantors of any first Mortgage.
(b) Rules for Inspection.
The Board shall establish reasonable rules with respect to:
the written notice to be given to the custodian of the records;
(il) hours and days of the week when such an inspection may be made; and
(ill) payment of the cost of reproducing copies of documents.
(c) Inspection by Directors.
Every director shall have the absolute right at any reasonable time to inspect all books, records, and documents of the Association and the physical properties owned or controlled by the Association. The right of inspection by a director includes the right to make extra copies of documents at the reasonable expense of
Section 13. Financial Statements.
Financial statements for the Association shall be compiled annually in the manner as the Board of Directors may decide; provided, however, after having received the Board's financial statements at the annual meeting, the Owners, by a Majority vote, may require that the financial statements of the Association be audited as a common expense by a certified public accountant. Upon written request of any institutional holder of a first Mortgage and upou payment of all costs associated therewith, such holder shall be entitled to receive a copy of the audited fiancial statements of the Association within ninety (90) days of the date of the
Section 14. Notice of Sale.
In the event an Owner sells or otherwise transfers title to his or her Lot, the Owner shall give to the Association, in writing, the name of the purchaser or transferee of the Lot and such other information as the Board may reasonably require.
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Section 15. Agreements.
Subject to the prior approval of the Association, all agreements and determinations, including settlement agreements regarding litigation involving the Association, lawfully authorized by the Board of Directors shall be binding upon all Owners, their heirs, legal representatives, successors, assigns, and others having an interest in the Commuaity or the privilege of possession and enjoyment of any part of the Community.
section 16. Variances.
Notwithstanding anything to the contrary contained herein, the Board of Directors or its designee shall be authorized to grant individual variances from any of the provisions of this Deckaration, the Bylaws and any rale, regulation or ase restriction promulgated pursuant thereto if it determines that waiver of application or enforcement of the provision in a particular case would not be inconsistent with the overall scheme of the Community, and the Variance is given in a dated writing.
Section 17. Litigation
No judicial or administrative proceeding shall be commenced or prosecuted by the Association uniess approved by at least seventy-five percent (75%) of the Total Association Vote. This Section shall not apply, however, to (a) actions brought by the Association to enforce the provisions of this Dectaration (including, without limitation, the foreclosure of liens), (b) the impositiom and collection of assessments as provided in Article IV hereof, (c) proceediags involving challenges to ad valorem taxation, or (d) counterclaims brought by the Association in proceedings instituted against it,
Section 18. Implied Rights.
The Association may exercise any right or privilege given to it expressly by this Declaration, the Bylaws, the Articles of Incorporation, any ase restriction or rule, and every other right or privilege reasonably to be impled from the existence of any right or privilege given to it therein or reasomably necessary to effectuate any such right or privilege.
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Section 19. Use of Recreational Facilities By Nonmembers &
Suspension of Rights of Members.
tay The extent and duration of nonmember use and the fee to be
charged therefore shall be determined solely by the Board. Nonmember user fees
shall be paid to the Association.
The Association shall not be liable for and is hereby held harmless from any
failure of any nonmember to pay a moniember user fee to the Association where
required to do so by this Section. In such case, the Association's sole remedy shall be
to suspend the use right of the monmember who has not timely paid until all
amounts owed are paid. The Association shall also not be liable for and is hereby
held harmless from any personal injury or property damage caused by a
nonmember entitled to ase the Community recreational facilities.
The Association shall have the sole right to grant ase rights to the Community
recreational facilities to nonmembers. The provisions of this Section shall apply
notwithstanding any contrary provisions in this Declaration, the Bylaws, Articles of
Incorporation, rules and regulations, use restrictions and any amendments to any of
the foregoing.
(b) The Association may suspend the rights of Owners or Occupants
to use any of the recreational facilities or common areas, if said Owner or Occupant
is delinquent in paying any Assessments or Fines to the Association.
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BK:862 PG:263
Section 20. Dispute Resolution and Limitations on Litigation.
A. Agreement to Avoid Litigation.
The Association, its officers, directors, and committee members, all Persons
subject to this Declaration, and any Person not otherwise subject to this
Declaration who agrees to submit to this Article (collectively, "Bound Parties")
agree to encourage the amicable resolution of disputes involving the
Community, without the emotional and financial costs of litigation.
Accordingly, each Bound Party covenants and agrees that those claims,
grievances or disputes described in paragraph "B." below ("Claims") shall be
resolved using the procedures set forth below in lieu of filing suit in any court.
B. Claims.
Unless specifically exempted below, all claims, grievances, or disputes arising
out of or relating to the interpretation, application, or enforcement of the
Governing Documents, or the rights, obligations, and duties of any Bound
Party under the Governing Documents or relating to the design or construction
of improvements on the Community shall be subject to the below provisions.
Notwithstanding the above, unless all parties otherwise agree, the following
shall not be Claims and shall not be subject to the provisions of this Section:
Any suit by the Association against amy Bound Party to enforce the provisions of
Article IV (Assessments);
Any suit by the Association to obtain a temporary restraining order (or equivalent
emergency equitable relief) and such other ancillary relief as the court may deem
necessary in order to maintain the status quo and preserve the Association's ability
to enforce the provisions of Article VI (Use Restrictions and Rules);
Any suit between Owners, which does not include the Association as a party, if such
suit asserts a Claim which would constitute a cause of action independent of the
Governing Documents;
Any suit in which any indispensable party is not a Bound Party; and
Any suit as to which any applicable statute of limitations would expire within 180
days of giving the Notice required by this Section.
With the consent of all parties thereto, any of the above may be submitted to
the alternative dispute resolution procedures set forth in this Section.
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C. Mandatory Procedures.
(a) Notice. Any Bound Party having a Claim (Claimant) against any other Bound Party ("Respondent") (collectively, the "Parties") shall notify each Respondent in writing (the "Notice"), stating plainly and concisely: The nature of the Claim, including the Persons involved and Respondent's role in the Claim;
The legal basis of the Claim (i.e., the specific authority out of which the Claim arises);
Claimant's proposed resolution or remedy; and
That Claimant's desire to meet with Respoadent to discuss in good faith ways to resolve the Claim.
(b) Negotiation. The Parties shall make every reasonable effort to meet in person and confer for the purpose of resolving the Claim by good faith negotiation. If requested in writing, accompanied by a copy of the Notice, the Board may appoint a representative to assist the Parties in resolving the dispute by negotiation.
(c) Mediation. If the Parties do not resolve the Claim within 30 days of the date of the Notice (or withim such other period as may be agreed upon by the Parties), Claimant shall have 30 additional days to sabmit the Claim to mediation under the auspices of Henning Mediation and Arbitration Services or, if the Parties otherwise agree, to an independent agency providing dispute resolution services in the COBB County area. Each Bound Party shall present the mediator with a summary of the Claim prior to the mediation session.
If Claimant does not submit the Claim to mediation within such time, or does not appear for and participate in good faith in the mediation, Claimant shall be deemed to have waived the Claim, and Respondent shall be released and discharged from any and all liability to Claimant on account of such Claim; provided, nothing herein shall release or discharge Respondent from any liability to any Person other than the Claimant.
Any settlement of the Claim through mediation shall be documented in writing by the mediator. If the Parties do not settle the Claim within 30 days after submission of the matter to the mediation process, or within such time as determined by the mediator, the mediator shall issue a notice of termination of the mediation proceedings indicating that the parties are at an impasse and the date mediation was terminated ("Termination of Mediation). Except as provided below in sabparagraph (d), the Claimant shall then be entitled to file suit or initiate administrative proceedings on the Claim as appropriate.
BK:862 PG:265
Each Bound Party shall bear its own costs of mediation and each Party shall share equally all fees charged by the mediator.
(d) Final and Binding Arbitration. If the Parties do not agree in writing to a settlement of the Claim within 15 days of the Termination of Mediation, the Claimant shail have 15 additional days to submit the Claim to arbitration in accordance with the Official Code of Georgia Annotated, Section 9-9-1, et seq. If the Parties do not voluntarily agree on an arbitrator, Henning Mediation and Arbitration Services shall be the arbitrator. If not timely submitted to arbitration or if the Claimant fails to appear for the arbitration proceeding, the Claim shall be deemed abandoned, and Respondent shall be released and discharged from any and all liability to Claimant arising out of such Claim; provided, nothing herein shall release or discharge Respondent from any liability to Persons other than Claimant. This subsection (d) is an agreement to ar itrate and is specifically enforceable under the applicable arbitration laws of the State of Georgia. The arhitration award (the "Award"') shall be final and binding, and judgment may be entered upon it in ny court of competent jurisdiction to the fullest extent permitted under the laws of the State of Georgia.
Each Bound Party shall bear its own costs of mediation and each Party shall share equally all fees charged by the mediator.
(e) Allocation of Costs of Resolving Claims.
Subject to subparagraph (d) above, each Party shall bear its own costs, including any attorncys' fees incurred, and cach Party shall share equally all charges rendered by the mediator(s) and all filing fees and costs of conducting the arbitration proceeding ("Post Mediation Costs).
Any award which is equal to or more favorable to Claimant than Claimant's Settlement Demand shall add Claimant's Post Mediation Costs to the Award, such costs to be borne equally by all Respondents. Any Award which is equal to or less favorable to Claimant than any Respondent's Settlement Offer shall award to such Respondent its Post Mediation Costs.
(1) Enforcement of Resolution.
After resolution of any Claim, if any party fails to abide by the terms of any agreement or Award, then any other Party may file suit or initiate
administrative proceedings to enforce such agreement or Award without the need to again comply with the procedures set forth in this Section. In such event, the Party taking action to enforce the agreement or Award shall be entitled to recover from the non-complying Party (or if more than one noncompiying Party, from all such Parties pro rata) all costs incurred in enforcing such agreement or Award, including, without limitation, attorneys' fees actually incurred, and court costs.
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IN WITNESS WHEREOF, the andersigned officers of Ocouee Crossing
Property Owners' Association, Inc. hereby certify that this Amended and Restated
Declaration of Protective Covenants was daly adopted by the required vote of the
Association membership, and any required notices were duly given.
This the l6" day of Segirm ber 2005.
Oconce Crossing Property Owners' Association, Inc.
Grace M. Deatsick
By: President
Aftest: hei g take
Secretary
[CORPORATE SEAL]
Witness: LouRtien
Swore to and subscribed to before me
this |blay of Sept → 200
Notary public I NOTARY
NOTARYAUELIC
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EXHIBIT "AP
Defnitions
The following words, when used in this Declaration or in any amendment thereof (unless the context shall probibit), shall have the following meamings:
(a) "Act" shall mean the Georgia Property Owners' Association Act, O.C.G.A. Section 44-3-220, et seg (Michie 1982), as may be amended.
and refer to [SUBDIVISION] HOMEOWNERS'Association, Inc., a nonprofit Georgia cerporation, its successors and assigns.
(c) "Board of Directors" or "Board of the Association shall be the appointed or elected body, as applicable, having its wormal meaning under Georgia corporate law.
"Bylaws" shall refer to the Bylaws of [SUBDIVISION] HOMEOWNERS' Association, Inc.
(e) "Common Property" shall mean any and all real and personal property and easements and other interests therein, together with the facilities and improvements located thereon, now or hereafter owed by the Association for the common use and enjoyment of the Owners.
(1) "Community" shall mean and refer to that certain real property and interests therein described in Article Il, and/ or its Mortgagee or transferee, as provided in the Declaration, and such additions thereto as may be made by the Association (as provided in the Declaration) of other real property.
-Wide Standard shall mean 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 of the Association. Such determination, however, must be consistent with the Community Wide Standard originally established by the Declarant.
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(h) "Lot" shall mean any plot of land within the Community, whether or not improvements are constructed thereon, which constitutes or could constitute, after the construction of improvements, a single dwelling site as shown on the plat for the Community, or amendments thereto, recorded in the land records of the county where the Community is located. If a vacant Lot adjoins another Lot upon which there is a dwelling, and both Lots are owned by the same person, the two Lots shall only constitute one Lot for purposes of assessments and voting. The ownership of each Lot shall include, and there shall pass with each Lot as an appurtenance thereto, whether or not separately described, all of the right, title, and interest of an Owner in the Common Property, which shall include, without limitation, membership in the Association.
(i) "Majority" means those eligible votes, Owners, or other group as the context may indicate totaling more than fifly percent (50%) of the total eligible aumber.
(i) Mortgage" means any mortgage, deed to secure debt, and any and all other similar instruments used for the purpose of conveying or encumbering real property as security for the payment or satisfaction of an obligation.
(k) "Mortgageet shall mean the hoider of a Mortgage.
(1) "Occupant" shall mean any Person occupying all or any portion of a Lot or other property located within the Community for any period of time, regardless of whether such Person is a tenant of the Owner of such property.
(m) "Owner" shall mean and refer to the record owner, whether one or more Persons, of the fee simple title to any Lot located within the Community, excluding, however, any Person bolding such interest merely as secarity for the performance or satisfaction of any obligation.
(n) "Person" means any natural person, as well as a corporation, joint venture, partnership (general or limited), association, trust, or other legal catity.
BK:862 PG=269 (p) "Supplementary Declaration" means am amendment or supplement to this Declaration which subjects additional property to this Declaration or imposes, expressly or by reference, additional restrictions and obligations on the land described therein, or both.
(q) "Total Association Vote" means all of the votes attributable to members of the Association.