Covenants
FILED
SUPERIOR COUR
JACHSON COUNTY. GA
2003 APR 29 PM 4: 39
REBA PARKS, CLERK
DEED BOOK 29. Z PAGE 59-153
DECLARATION OF COVENANTS, CONDITIONS, AND RESTRICTIONS
FOR
TRADITIONS OF BRASELTON
Upon recording, please return to:
M. Maxine Hicks, Esq.
EPSTEIN BECKER & GREEN, P.c.
Resurgens Plaza, Suite 2700
• 945 East Paces Ferry Road
Atlanta, Georgia 30326-1380
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TABLE OF CONTENTS
Page ARTICLE 1 DEFINITIONS.
1.1. Additional Property.
1.2 Adjacent Properties.
1.3. ARB........... ..2 1.4. Area of Common Responsibility. ..2 1.5. Articles of Incorporation or Articles. ..2 1.6. Association.. .2 1.7. Board of Directors or Board.
1.8. Builder.... ...2 1.9. By-Laws...
1.10. Class Bi Control Period...
.11 Common Area. ...
1.12. Common Expenses..
1.13 Community-Wide Standard..
1.14. Cost Sharing Agreement...
1.15 Days.
..16. Declarant.
1.17: Design Guidelines
1.18. Development Period
1.19. Exclusive Common Area
1.20. General Assessment..
1.21. Governing Documents
1.22. Majority..
1.23 Master Plan
1.24 Member..
1.25 Mortgage.
1.26 Mortgagee.
1.27 Neighborhood
1.28 Neighborhood Assessments
1.29. Neighborhood Association.
1.30. Neighborhood Expenses.
1.31. Owner..
1.32. Person.
1.33 Private Amenity..
1.34. Properties...
1.35. Public Records....
1.36. Special Assessment.
1.37 Specific Assessment.
1.38. Supplemental Declaration
1.39 Unit....
1.40. Voting Delegate
1.41. Voting Group.
ARTICLE 2 PROPERTY RIGHTS....
2.1. Common Area.
2.2. Exclusive Common Area
2.3. No Partition
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2.4. Condemnation. . 7
ARTICLE 3 MEMBERSHIP AND VOTING RIGHTS .7
3.1. Membership.
3.2. Voting..
3.3. Neighborhoods.
3.4. Voting Delegates..
3.5. Voting Groups...
ARTICLE 4 RIGHTS AND OBLIGATIONS OF THE ASSOCIATION..
4.1. Function of Association.
4.2. Personal Property and Real Property for Common Use..
4.3. Enforcement........
4.4. Implied Rights; Board Authority.
Governmental Interests.
Indemnification. .
4. :7 Dedication of or Grant of Easement on Common Area
4.8. Security....
4.9. Street Lighting Agreement...
4.10. Golf Course.
4.11. Presence and Management of Wildlife..
ARTICLE 5 MAINTENANCE
5.1 Association's Responsibility..
S.2 Owner's Responsibility..
5.3 Neighborhood's Responsibility
5.4. Standard of Performance......
5.5. Party Walls and Similar Structures
5.6. Cost Sharing Agreements....
ARTICLE 6 INSURANCE AND CASUALTY LOSSES.
6.1. Association Insurance
6.2. OwnersẠạiInsurance
6.3. Limitation of Liability.
ARTICLE 7 ANNEXATION AND WITHDRAWAL OF PROPERTY
7.1. Annexation by Declarant.
7.2. Annexation by Membership.
7.3. Withdrawal of Property.
7.4. Additional Covenants and Easements
7.5. Amendment. ...
ARTICLE 8 ASSESSMENTS
8.1. Creation of Assessments ....
8.2. Declarant's Obligation for Assessments.
8.3. Computation of General Assessment....
8.4. Computation of Neighborhood Assessments.
8.5. Reserve Budget and Capital Contribution..
8.6. Special Assessments.
8.7 Specific Assessments.
8.8. Lien for Assessments
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8.9. Date of Commencement of Assessments
8.10. Exempt Property...
8.11. Capitalization of Association:
ARTICLE 9 ARCHITECTURAL STANDARDS.
9.1 General...
9.2. Architectural Review.
9.3. Guidelines and Procedures...
9.4. Architect, Builder and General Contractor Approval..
9.5 Specific Guidelines and Restrictions...
9.6. Construction Period... ... 9.7 No Waiver of Future Approvals.
9.8. Variance........
9.9 Limitation of Liability
9.10. Enforcement..
ARTICLE 10 USE RESTRICTIONS..
10.1 General...
10.2 Rules and Regulations.
10.3 Residential Use..
10.4. Vehicles.
10.5. Leasing.
10.6 Occupants Bound
10.7 Animals and Pets
10.8. Nuisance.
10.9 Streams.
10.10. Drainage and Grading......
10.11 Sight Distance at Intersections
10.12. Storage of Materials, Garbage, Dumping, Etc.
10.13. Subdivision of Unit.
10.14. Guns. .....
10.15. Combustible Liquid...
10.16 Completion of Construction; Occupancy of Unfinished Units.
10.17. Lakes, Ponds and Streams.
10.18. Irrigation Systems and Wells
10.19. Golf Course Areas.
ARTICLE 11 EASEMENTS ..37 11.1 Easements of Encroachment
11.2. Easements for Utilities, Etc...
11.3. Easement for Slope Control, Drainage and Waterway Maintenance.
11.4. Easements to Serve Additional Property.
11.5. Easement for Entry.
11.6. Easements for Maintenance and Enforcement...
11.7. Easements for Lake and Pond Maintenance and Flood Water.
11.8. Lateral Support...
11.9. Easements for Private Amenities.
11.10. Easement for Special Events...
11.11. Rights to Stormwater Runoff, Effluent and Water Reclamation
11.12. Liability for Use of Easements...
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ARTICLE 12 MORTGAGEE PROVISIONS.. .42
12.1. Notices of Action
.12.2. No Priority.
12.3 Notice to Association...
12.4 Failure of Mortgagee to Respond..
12.5. Construction of Article 12. ...43
ARTICLE 13 DECLARANT'S RIGHTS.. ..43
13.1 Transfer or Assignment.
13.2. Development and Sales.......
13.3. Improvements to Common Areas
13.4. Additional Covenants..
13.5. Right of Class IB Member to Disapprove Actions.
ARTICLE 14 PRIVATE AMENTTIES.
14.1 General.
14.2. Conveyance of Private Amenities.
14.3 View Impairment..
14.4. Cost Sharing Agreements
14.5 Architectural Control.
14.6 Use Restrictions.
14.7. Limitations on Amendments.
- 14.8 Jurisdiction and Cooperation.
ARTICLE 15 GENERAL PROVISIONS
15.1. Duration.
15.2 Amendment..
15.3 Severability...
15.4 Dispute Resolution
15.5. Litigation.
15.6. Non-Merger.
15.7 Grants.
15.8. Cumulative Effect: Conflict.
15.9. Use of the Words "Traditions of Braselton"..
15.10. Compliance.
15.11. Right of First Refusal
15.12. Exhibits..
TABLE OF EXHIBITS
Exhibit Subject Matter
"A" Land Initially Submitted
*B" Land Subject to Annexation
"C" By-Laws
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DECLARATION OF COVENANTS,CONDmONS, ANn RESTRICTIONS FOR TRADmONS OF BRASELTON· . '. '. . .'. ,". ..' ."..
TIllS DECLARATION OF COVENANTS, CONDmONS, AND RESTRlCfIONS is made as of the date on the signature page hereof by Bluegreen Communities of a Georgia limited liability company (the .''Declarant''). '. ..' . Declarant is the oWner of the real property described in Exlu'bit "A," which is attached and · incorporated by reference.. nus Declaration imposes upon the Properties (as dermed mArticle I below) .
mutually beneficial restrictions under a general plan of improvement for the benefit of the owners of each · portion of the Properties and establishes a flexible and reasonable procedure for the overall development, administration, maintenance and preservation of the Properties.' In furtherance of such plan, this Declaration provides for the creation of Traditions of BrasClton Community Association, Inc. to own, operate and maintain Common Areas and to administer and enforce the provisions of this Declaration, the .. By,.Laws, and the Design Guidelines (as these tenns are dermed below).. " .
Declarant hereby declares that all of the property descnbed in Exhibit "An and' any additional .
property subjected to thi·s Declaration by Supplemental Declaration (as defined in Article I below) shall be held, sold, used' and conveyed subject to the following easements, restrictions, covenants,' and conditions, which shall run with the title to the real property subjected to Declaration.. 'This .
•Declaration shall be' binding upon all parties having any right, title, or interest in any portion of the '. Properties, their heirs, successors, successors-in-title, and assigns, and shall inure to the benefit of each owner of any portion of the Properties.
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.This document does not and is not intended to create a condominium within the meaning of O;C.G.A. §44-3-70, et seq., nor a property owners' development within the meaning of O.C.G.A.
§44-3-220, et seq.
ARTICLE!.
DEFINITIONS
The in this Declaration and the exhibits to' this shall generally be given their natural, commonly accepted .definitions except as otherwise specified. Capitalized terms shall'be defined· as set forth below. .
. 1.1. Additional Property. .All of that .certain real property which is more particularly described on Exhibit "B", which is attached and iricorporated herein by this reference, and which real property is subject to annexation to the terms ofthis Declaration in accordance with Article 7.
1.2. Adjacent Properties. Any residential, nonresidential, or recreational areas, including without limitation .single family residential developments,assisted living facilities, retail, office, commercial, or institutional areas and Private Amenities, which are located adjacent to, in the vicinity of, or within the Properties; which are owned and operated, in whole or in part, by Persons other than the 'Association; which are not subject to this Declaration; and which are neither Units nor Common Area as dermed in this DeClaration. . . .
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'1.3." ' Mill. The Architectural Review Board,as described in Section 9.2.
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1.4. Area of Common Responsibility. The Common Area, together with those areas, if any, .' , for which the Association has or assumes responsibility pursuant to the terms of this Declaration, any Supplemental Declaration or other applicable covenant, contract, or agreement. The Area of Common ,Responsibility shall include any real property and improvements which are designated as areas to be ' "maintained by the Association on a recorded subdivision plat for ,any portion ofthe Properties.
, ' 1.S.Articles Braselton Community Association, Incorporation or Articles. The Articles of Incorporation of Traditions of as filed with the Secretary ofState ofthe State of Georgia.
1.6. Association. Traditions of Braselton Community Association, Inc., a Georgia nonprofit ' ,corporation, its successors or assigns. ' , ' i . . . . .
, '1.7. Board ofDirectors or Board. The body responsible for administration of the Association,' selected as provided in the By-Laws and generally serving the same role as the board of directors under Georgia corporate law. ' , , ,1.8. Builder. Any Person who purchases one or more Units for the purpose of constructing improvements for later sale to consumers or purchases one or more parcels of land within the Properties , for further subdivision, development, and/or resale in the ordinary course of such Person's business. Any Person occupying or leasing a Unit for residential purposes shall cease,to be considered a Builder with respect to such Unit immediately upon occupancy of the Unit for residential purposes,' notwithstanding that such Person originally purchased the Unit for the purpose ofconstructing improvements for later sale to consumers.
, 1.9.' ,By-Laws.' The By-Laws of Traditions of Braselton Community Association, Inc., attached as Exhibit "C", as they may be amended.
, ' '1.10. Control Period. ' The period of time during which'the Class ''E'' entitled to appoint a Majority ofthe members ofthe Board ofDirectors as provided in Section 3.2.
1.11. Common Area. All real and personal property, including easements and licenses, which the Association owns, leases or holds possessory or use rights in for the conunon use and enjoyment of the Owners.• The term also shall include the Exclusive Common Area, as defined below., ' 1.1i. "Common Expenses. The and, estimated expenses incurred, or anticipated to be ' incurred, by the Association for the general benefit ofall Owners, including any reasonable reserve, as the Board may fwd necessary ,and appropriate pursuant to the Governing Documents.
1.,13., Community-Wide Standard. ' The standard of conduct, maintenance, or other activity , generally prevailing throl:lghout the Properties. Such standard shall initi3lly be established by the Declarant and may be more specifically determined by the Board ofDirectors and the ARB. ' ' " 1.14. Cost Sharing Agreement. Any agreement, contract or covenant between the Association, and an owner or operator ofproperty adjacent to, in the vicinity of, or Within the Properties, including any PriVl!te for the allocation of expenses that benefit both the Association and the owner or operator ofsuch property.' : ' , (' AT:92796.4 2
1.15. Days. Calendar Days; provided however, ifthe time period by which any action required · hereWlder mustbe performed expires on a Saturday; Sunday or legal holiday, then such time period shall · be automatically extended to the close ofbusiness on the next regular business day.
1.16. Declarant.· Bluegreen .Communities· of .Georgia, LLC, a Georgia limited liability· company, or any successor, successor-in-title, or assign who takes title to any portion of the property described on Exhibits "A" or "B"for the purpose ofdevelopment and/or sale and who is designated as the . Declarant in Ii recorded instrument executed by the immediately preceding Declarant; provided however, 'there shall be only one Person entitledto exercise the rights and powers of the hereWlder at ..
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1.17. Design Guidelines. The design and construction guidelines and application and review . procedures applicable to the Properties promulgated and administered pursuant to Article 9.
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1.18..,. Development Period. The period time· duiing which the Declarant owns any property which is subject to this Declaration, any Additional Property, or any Private Amenity, or has the unilateral .
right to subject Additional Property to this Declaration pursuant to Section 7.1.
1.19. Exclusive Common Area. A portion oftIie Common Area intended for the exclusive use or primary benefit of one or more, but less than all, Neighborhoods or Units, as more particularly ·described in Article 2. . . . . .
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1.20. . General Assessment.·· Assessments levied on all units subject to· assessment under Article 8to fund Common Expenses for the general benefit of ·all Units, as more particularly described in Sections 8.1 and 8.3. .
1.21. Governing Documents. The Declaration,. By-Laws, Articles of Incorporation, all Supplemental Declarations, the DC$ign Guidelines and rules of the AssOciation, or any of the above, as • each may be amended from time to time.
. .1.22. Majority. Those votes, Owners,Members, or other group, as the context may indicate, totaling more than 50% of the total eligible number.
. 1.23... Master Plan. The land use plan or developmentplari for ''Traditions of Braselton,"
prepared by the land planning fum of DeVictor Langham, 10896 Crabapple Road, Suite 100, Roswell, Georgia 30075, as such plan maybe amended from time to time, which includes the property described ... on Exhibit "A" and all ora portion ofthe property described on Exhibit "B" that Declarant may from time to time anticipate subjecting to this Declaration.. Inclusion ofproperty on the Master Plan shall not, under . any circwnstances, obligate Declarant to subject such property to this Declaration, nor shall the exclusion of property described on Exlu'bit "B" from the Master Plan bar its later linnexation in accordance with Article 7..
. .. 1.24.. Member. A Person entitled and subject to membership in the Association pursuant to Section 3.2.
. '1.25. Mortgage. Amortgage,a deed of trust, it deed to secure debt, or any other form of security instrument affecting title toany Unit. .. .
1.26. .Mortgagee. A, beneficiary or holder ofa Mortgage..
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, 1.27. " A separately developed area within the Properties, whether or not governed by a Neighborhood Association (as defined below), in· which the Owners of Units may have common interests other than those common to all Members ofthe Association. For example, and by way of illustration and not limitation, each single-family attached or detached, housing development may , constitute a separate Neighborhood, or a Neighborhood may be comprised ofmore than one housing type ' with other features in common. .
Where the context pennits or requires, the teim Neighborhood shall also referto the Neighborhood Committee, if any, (established in accordance with the By-Laws) or Neighborhood Association if any, (as defined below) having concurrent jurisdiction over the property within the Neighborhood. Neighborhood boundaries may be established and mOdified as provided in Section 3.3.. ' 1.28. Neighborhood Assessments. 'Assessments levied against the Units in Ii particular Neighborhood or Neighborhoods to fund Neighborhood Expenses, as descn"bed in Sections 8.1 and 8A.
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1.29. Neighborhood Association. ' Any ownersassociation having concUIl'ent jurisdiction with the Association over anyNeighborhood.
, '1.30. Neighborhood Expenses. The actual and estimated expenses incurred or anticipated to be incurred by the Association for the ,benefit of Owners of Units within a particular Neighborhood or Neighborhoods, which may include a reasonable reserve for capital repairs and replacements, as the Board may specifically authorize from time to time and as may be authorized herein or in Supplemental , Declarations applicable to suchNeighborhood(s). . , 1.31. ,One Or more PerSons who hold record title to any Unit, inchiding the , Declarant and any Builder but in all cases any party holding an interest merely ,as security for the perfonnance ofan obligation. Ifa Unit is sold Wlder a recorded land sales contract, and the contract specifically so provides, the purchaser (rather than the fee owner) will be considered the Owner. Ifa Unit is,owned by more than one Person, all such Persons shall bejointly and severally obligated to perfonn the responsibilities ofsuch Owner. " ' 1.32. Person.' A natural person, a corporation,a partnership, a limited liability company, a , fiduciary acting on behalfofanother person or any otherlegal entity. " , I.33.Private Amenity. Certain real property and any improvements and facilities thereon 'located adjacent to, in the vicinity of, or within the Properties, designated by the Declarant and which are ,owned and opeI'llted, in whole or in part, by Persons other than the Association for recreational or,other ' purpose. The use"of the term "Private Amenity" shall not be constnied to imply or require a private ',Private Anienities may beoper.ated on,a daily fee, use fee, public, or private basis or otherwise, and may include, without limitation, any golf course(s), so located and all relatedand supporting facilities and 'improvements. The Traditions of Braselton Club is hereby designated as a Private Amenity and Declarant reserves the right to designate additional Private Amenities in its, sole discretion. ' ' 1.34. Properties. The real property descn'bed on Exhtbit "A," together with such additional property as is subjectedtoihisDeclaration in accordance with Article 7.
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1.35. Public Records. The Office of the Clerk of the SuPerior Court of Jackson COWlty, Georgia.
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136. ,Special Assessment. Assessments levied in accordance with Section ' AT:92796.4 4
1.37. . Specific Assessment. Assessments levied in accordance with Section 8.7.
. 1.38.... SUpjJlemental Declaration. An instrument in the Public Records which subjects additional property to this Declaration, designates Neighborhoods, arid/or imposes, expressly or by reference, additional restrictions and obligations on the land described in such instrument. .
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1.39. Unit. A of the Properties, whether or which may be .independently owned and conveyed and which is intended for development, use, lind occupancy as an ..
attached or detached residence for a single family. The term shallrefer to the land, ifany, which is part of· the Unit as well as any improvements thereon. The tenn shall include within its meaning, by way of illustration but not limitation, townhouse units, cluster homes, patio or zero lot line homes, and single- . family detached houses on separately platted units, as well as vacant land intended for development as .
such, but shall not include Common Area, common property owned by any Neighborhood Association, or property dedicated to the public. In the case of abuilding within a condominium or other structure containing multiple dwellings, each dwelling shall be deemed to be a separate Unit. .
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In the case of aparcel ofvacant land land on which improvements are under constlllction, the . parcel shall be deemed to be asingle Unit until such time as a subdivision plat or condominium plat is.
filed of record on all or a portion of the parcel. Thereafter, the portion encompassed 'by such plat shall contain the number of Units determined as set forth in the preceding paragraph and my portion not encompassed by such plat shall continue to be treated in accordance with this paragraph.
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1.40.... Voting Delegate. Any representative selected by the Class "A" Members within each .Neighborhood to be responsible for casting all Class "A" votes attributable to Units in the Neighborhood on matters requiring a vote of the membership (except as otherwise specifically provided in this Declaration and in the BY-Laws). The term "Voting Delegate" shall also refer to any alternate Voting· .. Delegate acting in the absence ofa Voting Delegate and any Owner personally casting the vote for his or .. her Unit pursuant to Section 3.4. .
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1.41. Voting Group. One (1) or more Voting Delegates .who vote on II common slate for ...
election of directors to the Board of Directors of the Association, as more' particularly descnbedin Section 3.5 of this Declaration or, if the context so indicates, the group of Class "A" Members whose . Units are represented thereby. .. ....
ARTICLE 2
PROPERTY RIGHTS
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.. 2.1. COmmon Area.· Every Owner shall aright and nonexclusive easementof use, access, and enjoyment in and to the Common Area,which isappwtenant to and shall pass with the title to each Unit, subject to: .
(a) . nus Declaration and all Governing Documents;
(b) Association; ..
Any restrictions or limitations contained in any deed conveying such property to the . ,'...., :. ' . .
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(c) The right offue Board to adopt, amend and repeai rules regulating the use and enjoyment .. ofthe Common Area, including rules limiting the number ofguests who may use the Common Area;
(d) .The right of the Board to suspend the right of an Owner to use recreational facilities .. within the CommQnArea pursuant to Section 4.3; .... ..
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.(e) The right of the Association, acting -through the Board, to dedicate or transfer all or any part ofthe Common Area, subject to such approval requirements as may beset forth in this Declaration;
of the Board to impose reasonable requirements and charge reasonable.
admission or other use fees for the use ofany facility situated upon the Common Area;' .
.(g) The'right of the Board and the to permit USe of any.facilities situated on the ...
Common Area by persons other than Owners, their families; lessees and guests upon·. payment of . . reasonable use fees, ifany, established by the Board;. . .'
(h) .' The right of the Association, acting through tile Board, to mortgage, hypothecate any or aU of its real or personal property as security for money .borrowed Or debts incurred;
or . (i) The rights of certain Owners to the exclusive use ofthose portions of the Common Area designated "Exclusive COlnmon Areas," as more particularly described in Section 2.2; and .
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. ..'(j) The right of the Declarant to conduct activities within the Common Area, such as , .' tournaments, charitable events, and promotional events and to restrict Owners from using the Common Area during such activities, provided such activities shall be cortductedin a manner to minimize (to the 'extent reasonably possible) any substantial interference with the Owners' use and enjoyment of the' •Common Area and shall not exceed seven consecutive Days. .
Any Owner may extend his or her right ofuse and enjoyment to the members ofhis or her family, lessees, and social invitees, as applicable, subject to reasonable regullition by the Board. An Owner who leases his or her Unit shall be deemed to have assigned lill such rights appurtenant to the leased Unit to · the lessee ofsuch Unit. .
2.2. Exclusive Common Area. Certaln portions of the Common Area may be designated as Exclusive Common Area and reserved for the exclusive use or primary benefit of Owners and occupants ofspecified Units or Neighborhoods. By way ofillustration and not limitation,Exclusive Common Areas may include entry features, recreational facilities, roads, landscaped mt:dians and · lakes. and other portions of the. Common Area within a particular Neighborhood or Neighborhoods. All costs .associated With maintenance, repair, 'replacement, and insurance of an Exclusive Common Area shall be assessed against the Owners of Units to which the Exclusive Conurion Areas are assigned either as a Neighborhood Assessment or as a SpecificAssessment, as . . .
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Initially, any Exclusive Common Area shall be designated as such, and the exclusive use thereof shall be. assigned, the deed by which the .Common Area is conveyed to'the Association or in this Declaration or any Supplemental Declaration anellor on the subdivision plat relating to such Common Area; provided however, any such assignment shall not preclude the Declarant from later assigning use of the same Exclusive Common Area to additional Units anellor Neighborhoods during the Development Period. Thereafter, a -portion of the Common Area may be assigned as Exclusive Common Area of particular Units or a particular Neighborhood or Neighborhoods and Exclusive Common Area may be · reassigned upon approval of the Board and the vote of a Majority of the total Class "A" votes in the Association, including, if applicable, a Majority of the Class "A" votes within the Neighborhood(s) to which the Exclusive Common Area is assigned, ifpreviously assigned, and within the Neighborhood(s) to which the Exclusive Common Area is to be assigned or reassigned.
The Association may, upon approval of a Majority of the i Class "N'· votes within the · Neighborhood(s) to which any ExClusive Common Area is assigned, permit Owners of Units in other ·Neighborhoods to use all or a portion of such Exclusive Common Area upon payment of reasonable use AT:927,96.4 6
.fees, which fees shall be used to offset the Neighborhood Expenses or Specific Assessments attributable to such Exclusive Common Area. . .
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2.3. No Partition. Except as penmttedin this Declaration, there shall be no judicial partition .
ofthe Common Area. NoPex:son shall seek any judicial partition unless the portion ofthe Common Area which is the subject of such partition action has been removed from the provisions of this Declaration.
. this Article shall not prohibit the Board from acquiring and disposing of tangible personal property nor from acquiring arid disposing ofreal property which mayor may not be subject to this Declaration.
.. 2.4. Condemnation. If'any part of the Comriton Area shall (or' conveyed in lieu of . and under threat ofcondemnation by the Board acting on the written direction ofat least 67% ofthe total· Class ','A" votes in the Association and the written consent of the Declarant, so long as the Declarant owns any property which is subject to this Declaration or which' may be unilaterally subjected to this .
Declaration by the Declarant) by any IlUthOrity having the, power of condemnation or eminent domain, ,each Owner shall be entitled to written notice ofsuch taking or conveyance prior ,to disbursement of any condemnation award or proceeds from such conveyance. ' Ifthe taking or conveyance involves a portion ofthe Common Area on which improvements have been constructed, the Association shall restore or replace such improvements on the remaining land included in the Common Area to the extent available, unless within 60 Days after. such taking the Declarant, so long as the Declarant owns any property which is subject to this Declaration or which may be unilaterally subjected to this Declaration by, the Declarant, and at least 67% ofthe total Class "A"Yote of the Association shall otherwise agree. Any such construction shall be ,in accordance with plans .approved by the Board and the ARB; The proVisions ofSection 6.1 (c) regarding funds for the repair of damage or destruction shall apply. ' If the taking or conveyance does not involve any improvements on the Common Area, .or if a.
decisipn is made not to repair or restore, or ifnet funds remain after any such restoration pr replacement is complete; then such award or net funds shall be disbursed to the Association and used for such purposes as the Board shall detennine. .
. ARTICLE 3 ,
MEMBERSIIIP AND VOTING RIGHTS
·3.1. . Membership. Every Owner ofa Unit shall be a Member ofthe Association. :There shall .be orily one membership per Unit. If a Unit is owned by more than one Person, aU Persons shall share the privileges of such membership, subject to reasonable Board regulation and the restrictions on voting set '. forth in Section 3.2{d) and in the By-Laws. The membership ofany Member which is not a natural . person may be exercised by any officer, director, member, manager, partner or trustee, or by any .. ,.. individual designated from time to time by the Owner in a written instrumentdelivered to the secretary of , the Association. . . .
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. 3.2. , Votitig.The Association shall have two classes ofmembership, Class "A" and C1l1ss as set forth below. .
(a) Class "A". Class "A" Members shall be all Owners except Class "B" Member, if any. Class "A" Members shall have one equal vote for each Unit in which they hold the interest requITed for membership under Section 3.1; provided however, there shall be only one vote per Unit and no vote.
shall be exercised for any property which is exempt from assessment under Section 8.11. All, Class "A" .
.. votes shall be cast as provided in Section 3.2(d) below. . .
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, " • (b) , ,Class ''B'', The sole Class ''B'' Member shall be the Declarant. The rights of the Class , ''B'; Member, including: the right to approve, or withhold approval of, actions proposed under this Declaration, the By-Laws and the Articles, are specified in the relevant sections of this Declaration. the, ' , By-Laws and the Articles. The Class ''B'' Member may appoint a Majority of the members of the Board' of Directors during the Class ''B'' Control' Period which shall continue until the first to occur oftbe' , following: ' , ' ,,' , ,', ,',', , ',,", ,(i)',,' y,rhen 90% of the total number of Units pennitted by the Master Plan for the ' , proPex'tYdescribed on Exhibits "A" and lOB" have certificates ,of occupancy issued thereon and have been.
conveyed to Persons other than Builders; , (ii) December 31, 2015; or "
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(iii) when, in its discretion" the Class ''B'' Member so determines and voluntirily relinquishes such right in' a written instrument executed by Declarant and reCorded in the Public Records.
, After termination of the Class ''B'' Control Period; the Class ,''B'' Member shall have a right to disapprove actions ofthe, Board and conunittees as provided in the By-Laws. The Class "B" membership shall terminate upon the earlier of: ' ' . . '.. ' . .
(i) , tr'0years after expirationofthe Class''I3''Control Period; or (ii) in its discretion, the.Declarant declares in'a written "
'instrument executed by Declarant and recorded in the Public Records. ' . ..-.
Upon termination of the Class ''B'' membership, the Declarant shall: be a entitled to Class "An votes for each Unit which it "
"A" Member, ' , , '(c) , Membership. 'The Declarant may, by, SupplenientalDeclaration,' , ' l?l'eate additional classes :of membership for the owners of Units any additional ProPertY made subject to this Declaration pursuant to Article 7, with, such rights, privileges and obligations as may be specified in such Supplemental Declaration; in recognition of the different character and intended use of the property subject to such Supplemental Declaration. ' " ' ,(d) Exercise ofVoting Rights QyClass "A" Members. Ifthereis more than one Owner ofa Unit; the vote, for such Unit shall be exercised as the co-OWners determine among themselves and advise "
the secretary of the Association in writing prior to the vote being taken. Absent such advice, the Unit's , vote shall be suspended ifmore than one Person seeks to exercise it. No vote shall be exercised on behalf ofany Unit ifany assessment for such Unit is delinquent. IfVoting Delegates have been elected pursuant to Section 3.4, the vote for each Unit owned by a Class "A" Member be exercised by the Voting Delegate representing the Neighborhood of which the Unit is a part, as provided in such Section.
, '3:3. Neighborhoods. Every shall be located within a Neighborhood; provided however, unless and until additional Neighborhoods are established, the Properties shall consist of one ,:
Neighborhood. The Declarant, in its sole discretion, may establish Neighborhoods within the Properties by designation on Exhibit "A" to this Declaration, a Supplemental Declaration, or a plat During the ' OevelopmentPeriod, the Declarant may unilaterally amend this or any Supplemental ' Declaration fr9m time to time to assign property toa specific Neighborhood, to. redesigriate Neighborhood bOWldaries, or to remove property from a specific Neighborhood.
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, .The Owner(s) of a Majority of the total number of Units within any Neighborhood may at any··· .time petition the Board ofDirectors to divide the property comprising the Neighborhood into two or more Neighborhoods. Such petition shall be in writing and shall include a survey of the entire parcel which indicates the proposed boundaries of the new Neighborhoods or otherwise identiflestheUriits to be .
.included within the proposed Neighborhoods. Such petition shall be deemed granted 30 Days following the filing of all required documents with the Board unless the Board of Directors denies such application in writing within such 30 Day period.. The Board may deny an application only upon determination that there is no reaSonable basis for distinguishing between the areas proposed to be divided into separate Neighborhoods. An applications and copies of any denials shall be filed with the books and records of· the Association and shall be maintained as long as this Declaration is in effect. . ...
The Units within a particular Neighborhood may be subject to additional covenants and/or the .
Unit Owners may' be members of a Neighborhood Association in addition to the Association. However, a Neishborhood Association shall not be required except as required by law; Any Neighborhood which· does not have a Neighborhood Association may, but shall not peobligated to, elect a Neighborhood Committee, as described in the By-Laws, to represent the interests of Owners of Units in such 'Neighborhood. . . . .
.Any NeighborhoOd, may request thilt the provide a higher level 'of service or special services for the benefit of Units in such Neighborhood and, upon the affirmative vote, written consent,or· .a combination thereof, of Owners of a Majority of the Units within the Neighborhood, the Association ..
may, in its sole discretion, provide the requested se(Vices. The cost ofsuch services, which may include a reasonable administrative charge in such amount as the Board deems appropriate (provided any such administrative charge shall apply at a unifonn rate per Unit to all Neighborhoods receiving the same· service), shall be assessed against the Units within such Neighborhood as a Neighborhood Assessm<;nt .
pursuant to Article 8 hereof.
3.4.' Voting Delegates. The Owners within each Neighborhood inay elect a Voting Delegate who shall be responsible for casting all votes attributable to Units owned by Class "An Members in the Neighborhood on all Association matters requiring a membership vote, except as otherwise specified in this Declaration or the By-Laws. In addition, each Neighborhood may elect an alternate Voting Delegate who shall be responsible for casting such votes in the absence ofthe Voting Delegate. No Person shall be eligible to serve as a Voting Delegate or an alternate Voting Delegate if any assessment for such Person's Unit isdelinquent. .
IfVoting Delegates and alternate Voting Delegates will be elected, elections shaIl take place on an annual basis, either by written ballot cast by mail or at a meeting of the Class "A" Members within each Neighborhooo, as the Board determines; provided however, upon written petition signed by Class nAn Members holding at leaSt ten percent (10%) of the votesattnbutable to Units within any Neighborhood, the election for such Neighborhood shall be held at a meeting. The presence, in person or by proxy. of Class "An Members representing at least ten percent (10%) of the total Class "A" votes attributable to Units in the Neighborhood shall constitUte a quorum at any Neighborhood meeting.
, The Board in its sole discretion shall whether Voting Delegates shall be elected for each Neighborhood; provided however, all Neighborhoods which are similarly situated shall be treated the same.. IfVoting Delegates will be elected fOf a Neighborhood, the Board shall send notice of the election to allOwiiers within the Neighborhood; provided however, the first election ofa Voting Delegate for any Neighborhood shall not be held until. at least .fifty percent (50%) of the Units planned.for such Neighborhood have been conveyed to Persons other. than Builders.
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. Subsequent elections Within each Neighborhood shall be held lUUlually.· Each Class·"A" Member· who owns a Unit within the Neighborhood shall be to cast one (1) equal vote per Unit owned.
The candidate who receives the greatest number of votes shall be elected as Voting Delegate and the candidate receiving the next greatest number of votes shall be elected as the alternate Voting Delegate..
The Voting Delegate and the alternate Voting Delegate shall serve a term of one (1) year and until their· successors are elected. . .
•. Any Voting or alternate Voting Delegate may be removed, with or without cause, upon the vote or written petition of Owners of a Majority of the total number of Units owned by Class "A"
Members in the Neighborhood which the Voting Delegate or alternate Voting Delegate represents. Any Voting Delegate or alternate Voting Delegate shall be automatically removed and ineligible to cast the votes attributable to Units in such Voting Delegate's Neighborhood if any assessment for such Voting Delegate's Unit is delinquent. Upon remoVal of a Voting Delegate or an alternate, a successor shall be elected by the Owners of Units within the Neighborhood to fill the vacancy for the remainder of such .. delegate's term. . .
... Until such time as the Board first calls for election of a Voting Delegate for any Neighborhood, the Owners within such +'leighborhood shall be entitled personally to cast the votes attributable to their respective Units on any lssue requiring a vote of the Voting Delegates under this Oeclaration, the By- Laws, or the Articles. ...
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. Prior to taking a·voteon any issue requiring membership ,approval, the Association shall distribute proxies to all Members represented by Vciting Delegates· allowing each Member to direct in .
writing how such Member's vote is to be cast with respect to such issue by the Voting Delegate who · represents him or her. The Voting Delegates shall be required to cast all votes for which specific proxies are returned in the manner directed in such proxies. All other votes may be castas the Voting Delegate· deems appropriate in its. sole discretion. . The Board may adopt resolutions. establishing additional procedures for polling Members. . . .. ...
3.5. \Toting Groups. The Declarant may designate Voting Groups consisting of one (1) or more Neighborhoods for the pUlpose of electing directors to the Board. The designation of Voting Groups, if any, shall· be to promote representation on the Board of Directors for various· groups having dissimilar interests and to avoid a situation in which the Voting, Delegates representing. similar · Neighborhoods are able, due to the number of Units in such to elect the entire Board of Directors, excluding representation of others. The number ofVoting Groups within the Properties shall not exceed the total number of directors to be elected by the Class "An Members pursuant to the By- Laws. The Voting Delegates representing the Neighborhoods within each Voting GrouP shall vote on a separate slate of candidates for election to the Board, with each Voting Group being entitIedto elect the · number ofdirectors specified in the By-L.aws; .
. . ... The Declarant shall establish Voting Groups, jf at all,no! later than the date of expiration of the .
Class. "B" Control Period by filing with the Association and· in· the Public Records· a Supplemental " . Declaration identifying each Voting Group by legal description or other means such that the Units within each Votirig Group can easily be determined. Such desigriation may be unilaterally amended from time to .
time by the Declarant during the Development Period. . . .. . .
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. After expiration of the Declarant's right to amend any designation of Voting Groups as provided above, the Board shall have the right to file or amend any Supplemental Declaration for the purpose of designating Voting Neither recordation nor amendment of such Supplemental Declaration shall constitute an amendment to this Declaration, and no conseJit or approval of any Person shall be required except as stated in this Section. Until such time as· Voting Groups are established, all of the Properties· AT:92796.4 10
. shall a Voting Group. After a Supplemental Declaration establishing Voting Groups lias .. been filed, any and all portions Of the Properties which are not assigned to a specific Voting Group shall constitute a single Voting Group.
ARTICLE 4
RIGHTS AND OBLIGATIONS OF THE ASSOCIATION
4.1. . Function of Association.. The Association shall be· the entity responsible for· management, maintenance, operation and control of the .Area· of Coriunon .Responsibility and· all improvements thereon. The Association shall be the primary entity responsible for enforcement of this Declaration and such reasonable rules regulating use of the Properties as the Board may adopt pursuant to . Article 10. TheAssociation shall also be responsible for administering and enforcing the architectural standards and controls set forth in this Declaration and in the Design Guidelines. The Association shall ..
. perforinitsfunctions in accordancewith the Governing Documents and the laws ofthe State ofGeorgia.
4.2. ... . Personal ProPertv and Real Property for Common Use. The Association,through action· of its Board, may acquire, hold, and dispose of tangible and intangible personal property and·· real property. The Declarant and its designees, with the Declarant's prior written consent, may convey to the Association improved or unimproved real estate, or interests in real estate, located within the property described in Exhibits "A" or "B," personal property and leasehold and other property interests. Such .
.. property shall be accepted by the Association and thereafter shall .be maintained by the Association at its expense for the benefit ofits Members, subject to any restrictions set forth in the deed or other instrument.
transferring such property to the Association. Declarant shall not be required to make any improvements whatsoever to property to be conveyed and accepted pursuant to this Section. Upon written request of · Declarant, the Association shall reconvey to Declarant any unimproved portions of the Properties ...originally conveyed by Declarant to the Association for no consideration; to the extent conveyed by .. Declarant in error or needed by Declarant to make adjustments in property lines. .
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4.3. .. Enforcement. The Board, or any committee established by the Board, may impose .. sanctions for violation of the Governing Documents after compliance with the notice and hearing procedures set forth in Sections 3.10 and 3.15 of the By-Laws.· Such sanctions may include, without limitation:· . ,
(a) imposing monetary fmes which shalll,:onstitute a lien upon the Unit ofthe (In the .
· event that any occupant, guest or invitee of a Unit violates the Governing Documents and a fine is ' · imposed, the fine shall flI'St be assessed against the occupant; provided however, ifthe fme is not paid by · the occupant within the time period set by the Board, the Owner shall pay the fine upon notice from the , Board.); .• . . ..'.' . '. .
. (b) filing liens in the Public Records for nonpayment of any assessments or fees;
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,. (c), .filing notices of violations in the Public Records providing record notice of any viola:tiot:l ofthe GoverningDocuments; ...
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(d) suspending an Owner's right to vote;
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(e) .suspending any Person's right to· use any recreational facilities within the Common·Area;
provided however,nothing herein Shall authorize the Board to limit ingress or egress to or from a Unit;
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, .. (f) .. suspending any by the Association to. an Owner or the Owner's Umt if the Owner is more than 30 Days delinquent.in paying any assessment .orother charge owed to the Association; and .. . . . .
. (g) . . levying Specific Assessments to cover in accordance with Section 8.7(c); .. . .
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bringing a Unit into compliance · In addition, the or the .covenants committee· if established, may elect to enforce any·· .. provision of the .Governing Documents by entering .the Unit and eXercising self-help· (specifically including, but not liniited to, the towing of vehicles that are. in violation ofparking rules, the removal of pets that are in violation ofpet rules or the correction of any maintenance, construction or other violation ofthe Governing Documents) or by suit at law or in equity to enjoin any violation or to recover monetary damages or both without the necessitY of compliance with the procedures set forth in the By-Laws..
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All remedies set forth in this DeClarati()n and the·By-Laws shaH be cumulative of any remedies .. available at law or in equity. In any action to enforce the provisions of the Governing Documents, if the Association prevails, it shall be entitled to recover all costs, including, without limitation, attomeys fees and court costs, reasonably incurred in such action. . . .
The·Association shall not be obligated to take action to enforce any covenant, restriction, or rule which the Board in the exercise of its business judgment detefmines is, or is likely to be construed as, .
inconsistent with applicable law, or in any case itiwhich the Board reasonablydeterniines that the Association's position is not strong enough to justify taking enforcement action. Any such determinati()n shall not be construed a waiver of the right of the Association to enforce such provision under any · circumstances or prevent the Associationf;rom enforcingaily other covenant, restriction or rule.....
·ine by contract or other agreerI1ent, state and federal ordinances, if applicable, ahd permitlocal and other governments to enforce ordinances on the Properties ..
for the benefit ofthe Ass<K1iation and its Members. .
· 4.4. Implied Rights: Board Authority. The Association may exercise any right or privilege given to it expressly by this Declaration or the By-Laws,or reasonably implied from or reasonably . necessary to effectuate any such right or privilege. Except as otherwise specifically provided in this · Declaration, the the .Articles, or by law, all rights· and powers of the Association may be exercised by the Board a vote ofthe membership..
·4.5. Governmental Interests. During the Development Period, the Declarant may designate· · sites within the Properties for public or quasi-public facilities. No membership approval shaH be required.·.
for such designatjon;The, sites may include Common Area, in which case the shall take whatever action is requited: with respect to such site to pemiit such Use, including conveyance ofthe site, .
if so directed by Declarant;· The. sites may include other property not oWned by Declarant provided the owner consents.· . .
4.6. . Indemnification..The shall indemnify every officer, director, ARB member and committee member against all damages, liability, and expenses, including attorneys fees, reasonably incurred in cormection with any action, .suit, or other proceeding (including settlement of any suit or proceeding, ifapproved by. the then Board of Directors) to which he or she may be a party by reason.of being or having been an officer, director, ARB member or conunittee member, except that such obligation to indemnify shall be limitedto those actioJl!l for. which liability is liniited Under this Section, the Articles ofIncorporation and Georgia law. .
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The officers, direCtors,' and .illand other committee members shall not be for any mistake of judgment, negligent or otherwise. except· for their own individual' willful misfeasance, malfeasance, misconduct, or bad faith. The officers, directors and ARB and other committee members . shall have no personal liability with respect to any contract or other commitment made or action taken in .
. good faith on behalf of the Association (except to the extentthat such officers, directors or ARB or other conunittee members may also be Members of the Association). The Association shall indemnify and forever hold each such officer, director and ARB and other committee member hannless from any and all . liability to others on account of any such contract, commibPent or action. 11ris right to indemnification shall not be exclusive ofany other rights to which any present or former officer. director, or ARB or other conunittee member may be entitled. The Association shall. as aCommon Expense, maintain adequate general liability and officers' and directors' liability insurance to fund this obligation. if such insurance is reasonably available. . .
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.4.7. Dedication of or Grantof on Common Area. The Association may dedicate · portions of the Common Area to Jackson County. Georgia, or to any other local, state. or federal governmental or quasi-governmental entity or. private utility provider. . .
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4.8. Security.. The Association may, but shall n6t be obiigatedto, maintain orsupport certain'..
activities within the Properties designed to make. the Properties safer than they otherwise might be.
Neither the Association, the original DeClarant,: nor any successor Declarant shall in any way be ..
considered insurers or guarantors ofsecurity within the Properties, nor shall any ofthem be held liable for any loss or damage by reason of failure to provide adequate security or ineffectiveness of security measures undertaken. No representation or warranty is made that any security system or measure, · including any mechanism or system for limiting·access to the Properties. can· not be compromised or.
· circumvented, nor that any such systems or security measures undertaken will in all cases prevent loss or ·provide the detection or protection' for which the system' is designed or intended. . Each Owner acknowledges, understands and covenants to inform its tenants and all occupants of its Unit that the Association, its Board of Directors and committees, Declarant, and any successor Declarant are not insurers and that each Person using the Properties assumes all risks ofpersonal injury and loss or damage to property, including Units and the contents ofUnits, resulting from acts ofthird parties. .
. 4.9... Street Lighting Agreement. Declarant reserves the right to subject Properties to a .
contract with an electric utility company for the installation of Wlderground electric cables and/or the installation of street lighting, either or both which may require' an initial payinent and/or a. continuing ....
· monthly payment to an electric utility company by each Owner or the Association: All street lights shall .
be installed or aimed so as to minimize the potential for either a disabling glare to drivers or pedestrians or a nuisance glare.to neighboring properties..
. 4.10. . GolfCourse. By acceptance ofa deed to any Unit, each Owner ·that owning property adjacent to a golf course has benefits as well as detriments and that the detriments include: (a) the risk of damage to property or injury to persons and animals from golf balls which are hit onto an Owner's Unit or other portion ofthe Properties; (b) the entry by golfers onto an Owner's Unit or other portion of the Properties utilized by the Owner to retrieve golf balls; (c) over spray in cOImection with the watering of the roughs, fairways and greens on the golf course; (d) noise from golf course maintenance and operation equipment (including, without limitation, compressors, blowers,mulches,.
·tractors, utility vehicles and pumps, all of which may be operated at all times of the day' and night and/or continuously); (e) odors arising from irrigation and fertili.Zlition ofthe turfsifuated on the golfcourse; and
(f) disturbance and loss of privacy resulting from golf cart traffic and golfers. Additionally each Owner acknowledges that pesticides and chemicals may be applied to the golf course throughout the year and .' that reclaimed water, treated waste water or other sources ofnon-potable water may be Used for irrigation ofthe golfcourse. . .
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,.Each Owner'expressly, assumes such' detriments and risks that'neither .
CommW1ities of Georgia, LLC, or any successor Declarant; the Association or its Members (in their ' capacity as such); the oWner(s) ofany golfcoUrse or their successors, or assigns; any 'officer, director or p.r of any of the foregoing; nor any parent company, officer or director of any' ,partner'of any of the foregoing shall be 'liable to any Owner or ariyone claiming any loss or damage, including, without limitation, indirect, special or conSequential loss or daniage arising from personal injury, destruction ofproperty, trespass or ariy other alleged wrong or entitlement to remedy based Upon, .
',' due to, arising from or, otherwise related to the proximity of an Owner's Unit to any golf course, including, without limitation,any claim arising in whole or in part from the negligence of Declarant, the owner of any golf coUrse, or their successors or assigns. Each Owner hereby agrees to indenmify and holdhannless Bluegreen .Communities of C3eorgia, LLC, a Georgia limited liability company, and any successor Declarant; the Association and its Members (in their capacity as such); theowner(s) of the Private Amenities and their successors, successors-in-title, and assigns; any parent company, officer, director or partner of any of the foregoing; and any officer or director of any partner of the foregoing' against any and all such claims by Owner's invitees. ' , 4.11. ',' Presence and Management ofWildlife. Each Owner and occupant, and each tenant, guest' and invitee of any Owner or occupant acknowledges that the Properties are located adjacent to and in the vicinity of wetlands, bodies of water and other natural areas. Such areas may contain wildlife, including without limitation, deer and raccoons. Neither the Association, the Board,the original Declarant, nor any , successor De,clarant shall be or responsible· for any persorlal injury, illness or any other loss or 'damage caused by the presence of such Wildlife on the Properties. Each Owner and occupant of a Unit and each tenant, guest and. invitee of any OWner or occupant shall assume all risk of personal injury, illness, or other loss or damage arising from the presence of such wildlife and further acknowledges that . ,the Association, the Board, the original Declarant or "any successor Declarant have made no, ,representatil:ms or warranties, nor has any Owner or occupant, or any tenant, guest, or invitee of any Owner or occupant relied upon any representations or warranties, expressed or implied, relative to the ' " presence of such wildlife. ...'"
, The Declarant, acting in its'sole absolute discretion, retains the right,butnot the obligation, to, engage in wildlife and fishery management plans and practices'on the Properties to the extent that. such i practices are permitted by applicant state and federal law. For the pUIpose of illustration and not :
limitation, this includes the right to manage and control any populations of deer, raccoons, aridother, wildlife through a variety of techniques, including organized hunttng, shooting and' trapping. ' The "
Declarant hereby reserves the right to assign these management rights to the Association. ' ARTICLES' MAINTENANCE 5.1. . Association's Responsibility.
(a) . The Association shall maintain and keep in good condition, order and repair the Area of Common Responsibility, which shall include, but need not be limited to: ' '(i) , Common Area;
(ii) all landscaping and other flora, parks, sidewalks,ponds, structures, and improvements, ,including flIlY entry features, and pedestrian pathwaysltrails, situated upon the Common Area; I ' " , . ; .."." ."." '.. .. ".". ". ..'' .
(iii) , ", all rumishfugs, equipment and other personal property ofthe Association;
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. ' .• ' (iv)· any street trees, landscaping and otherflol1l> buffers areas are maintained by the owner of the Private AmenitY), parks, sidewalks and pedestrian pathways/trails, .
. '. structures and improvements. within public rights-of-way within or abutting the Properties or upon such other public land adjacent to the Properties as deemed necessary in the discretion ofthe Board; .
. (v) such portions of any additional property included within the Area of Common Responsibility as may be dictated by.this Declaration, any Supplemental Declaration, any Cost Sharing Agreement, or any contract or agreement Jor maintenance thereofentered into by the Association;
'. . . (vi) . . all streams and/or wetlands located within the Properties which serve as part of .. the drainage and stonn water retention system for the Properties, including any retaining walls, bulkheads ·or dams (earthen or otherwise) retaining water therein, and any fountains, lighting, pumps, conduits, and similar eqUipment installed therein or used in connection'. therewith unless such facilities' are located.' ·. within a Private Amenity and are maintained by the owner ofthe Private Amenity; and (vii) . any property and facilities owned by the Declarant arid made available,' on a' tempOrary or pennanentbasis, for the primary use and enjoyment of the Association and its Members, .
such property and facilities to be identified by wnt1;en notice from the Declarant to the Association and to remain a part of the Area of Common Responsibility and be maintained by the' Association until such .
·time as Declarant revokes such privilege ofuse and enjoyment by written noticeto the Association.
The Association may, as a Common Expense, maintain other property and improvements which it '. does not own, including, without limitation, property dedicated to the public, or provide maintenance or.
services related to such property over and above the level being provided by the property owner, ifthe .
Board of Directors determines that such maintenance. is necessary or desirable to maintain the Community-Wide Standard. For example, the Association may maintain any fence, wall, entry feature or ·sign serving to enhance or designate the entry to Traditions of Braselton regardless that such ·improvements are not located within the Common Area or the Properties. "
. (b) .. The Association may be relievedofall or any portion ofits maintenance responSIbilities.
·herein to the extent (a) such maintenance responsibility is otherwise· assumed by or assigned to an·' Owner, a Neighborhood Association or the owner of a Private Amenity or (b) such property is dedicated .' to any other local, state or federal governmental or quasi-governmental eiltity; provided however, that in connection with such assumption, assignment or dedication, the Association may reserve or assume the ·right or obligation to continue to perfonn all or any portion of its maintenance responsibilities, if the . Board determines that such maintenance is necessary or desirable to maintain the Community-Wide .Standard. .' .' . . .
(c) . The shall the facilities and equipment withfu the Area of Common' Responsibility in continuous operation, except for any periods' necessary, as determined in the sole.
discretion of the Board, to perfonn required maintenance or repairs, unless Members holding 67% of the Class "A" votes in the Association and the aass "B" Member, ifany, agree in writing to discontinue such operation.' . .
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. Except as provided. above, .the Area of Common Responsibility shall not be reduced by amendment ofthis Declaration or any other means dwing the Development Period except with the written . consent of the Declarant. . .
(d) Except as otherwise specifically herein,allcosts associated withmahltenance, repair and replacement of the Area of Common Responsibility shall be a Commori Expense to' be .
allocated' among all Units as part of. the General ASsessment, without prejudice to the right of the AT:92796.4 15
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, ", , . Association to seek reimbursement from the mother responsible for, certain portionS "
ofthe Area of Common Responsibility pursuant to this Declaration, any Cost Sharing Agreements,any recorded covenants, or any agreements with the owner(s) ,thereof. All costs associated with maintenance, "
'repair and replacement of Exclusive Common Areas, shall be'a Neighborhood Expense assessed as' a "
Neighborhood Assessment solely the Units within, the Neighborhood(s) to which the Exclusive , Common Ateasare assigned, or a Specific Assessment against the particular Units to which the Exclusive , Common' Areas, are assigned, notwithstanding that the Associatiori' inay be responsible for performing such maintenance hereunder. '
(e) The Association may mow and on each tmimproved any grass ' 'portion of the Unit located between the unitbotmdary adjacent to the street to the rear property line. For , purposes ofthis section, uIrimproved Unit shall mean a Unit withouta dwelling. , ," , . ,5.2., Responsibilitj. Owner shall her Unit, and aU stnictures, 'parking areas, landscaping and other flora and other impro'Vementscomprising the Unit ina manner consistent with the Community-Wide Standard and all Governing Documents, tmless'such maintenance' responsibility is otherwise assumed by or assigned to the Association or a Neighborhood Association.
With respect to any Unit upon which a dwelling has not yet been constructed, such maintenance " responsibility shall include; but is not limited to, the removal of all litter and t:rash and lawn mowing on a , "
,regular basis. Each Owner shall also maintain all landscaping and other improvements in the right-of- , " way immediately adjacent to the Owner's Unit. In addition to any other enforcement rights; if an Owner '"fails to perform properly his or her maintenance responsibility, the Association ItUly perform such , maintenance responsibilities and assess all costs incurred by the Association against the Unit and the Owner in accordance with Section 8.7. The Association shall afford the Owner reasonable notice and an opportunity to cure the problem prior to entry, except when entry is required due to an emergency situation. ,! ' ' ' , ' .
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5.3.' Responsibility. Upon resolution of the Board of Directors, the Owners ,of Units within each Neighborhood shall be responsible for paying, through Neighborhood Assessments, the costs of operating, mamtaining and insuring certain portions of the Area of Common Responsibility within or adjacent to such Neighborhood This may include, without limitation, the costs of maintaining any signage. entry features. and greenspace betWeen the Neighborhood and adjacent public, roads; provided however,a11 NeighborhoodS which are similarly situated shall be treated the same.
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'Any Neighborhood Association' having 'for, maintenance' within a' particular ' Neighborhood pursuant to additional covenants applicable'to ,such Neighborhood shall perform such maintenance responsibility in a manner consistent with the ConUntmity.,Wide Standard. Ifit fails to do so, the Association may perform such respOnsibilities and assess the :costs as a Specific Assessment, against all Units within such Neighborhood as provided in Section 8.7.' .
5.4. Standard of ' Unless otherwise specificaUyprovided herein or in othcd instruments creating and assigning such maintenance responsibility. responsibility for maintenance shall include responsibility for repair and replacemeIit, as necessary. All maintenance shall be performed in a manner consistent with the Community-Wide Standard and all Governing Documents. Neither the Association, any Owner nor any Neighborhood Association shall be liable for any damage or injury , occurring on, or arising out of the condition of, property which such Person does not own except to the "extent that it has been negligent in the performance ofits maintenance responsibilities.
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,j , 5.5. ' Party Walls and Similar Stnictures. • (a) General of Law to Apply. Each wall, fence,drlvewaYOrsimilarstrocture built asa part of the original construction on the Units which serves and/or separates any two adjoining Units shall ,constitute a party structure., 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 The cost ofreasonable repair and maintenance of a party structure shall be shared equally by the Owners who make use ofthe party structure; , , , , (c) 'Qamage and Destruction. 'Ifa party structure'is destroyed or damaged by fire or other casualty, then to the extent that such damage is noi covered by insurance and repaired out ofthe proceeds , '" of insurance, any Owner who'has used the structure may restore it. Ifother Owners thex:eafter use the structure, they shall contribute to the restoration cost in equal proportionS. , However, such contribution, will not prejudice the right to call for a larger contribution from the, other users under any nile of law ' regarding liability for negligent or willful acts or omissions. " ' , ,..' '..'
(d) Right to Contribution Runs With Land. The right ofany 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.
. " .'. ' ..' .. ..., .- , 5.6. Cost AgreementS. The Association may enter into 'Cost Sharing Agreements with the owners or operators ofportions ofthe Adjacent Properties:
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(a) to obligate the owners or operators of such Adjacent Properties to share in certain costs associated,with the maintenance, repair, replacement and insuring ofportions of the Area of Common,' Responsibility, ifany, which are used by or benefit jointly the owners,or operators of such Adjacent Properties and the owners within the Properties;' ,
(b) to pennit the use of any recreational and other facilities located on such Adjacent Properties by the Owners ofall Units or by the Owners ofUnits within: specifiedNeighborhoods; and/or '. .' - . . . . .
(c) to obligate the Associatiori to share in certain costs 'associated with the repair, replacement' and insuring of portionso! such Adjacent Properties, ifany, which are used by or beilefitjointlythe owners ofsuch Adjacent Properties and the owners within the Properties.' The owners ofsuch AdjacentProperties shall not be Members' ofthe Association and shall not be 'entitled to'vote on any Association matter. "
,Theowners ofsuch Adjacent Properties shall be subject to assessment by the Association,only in accordance with, the provisions of such Cost Sharing Agreement(s).lf the Association is obligated to share costs incurred by the owners ofsuch Adjacent Properties, the Cost Sharing Agreement shall provide whether such payments by the Association shall constitute Common Expenses or Neighborhood Expeiu;es . of the Association. The owners of the Adjacent Properties shall not be subject to the restrictions . coniained in this Declaration except as otherwise specifically provided herein.
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ARTICLE 6
' .. INSURANCE AND CASUALTY LOSSES
6.1. Association fusurance.
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(a) . . Required Coverages. The. Association, acting through ;itsBoard or its duly authorized' "agent, shall obtain and continue meffect the following types of insurance, ifreasonably available, or if , ,'..', not reasonably available, the most nearly equivalent coverages as are reasonably available: ," ,, '. (i) , Blanketproperty insurance covering "risksofdirect physical loss" on a .
fonn" basis (or comparable coverage by whatever name denominated) for all insurable improvements on the Common Area, ifany, and on other portions of the Area of Common Responsibility to the extent that it has assumed responsibility for maintenance, repair andlor replacement in the event of a casualty.· If .
such coverage is' not generally available at reasonable cost, then "broad form" coverage may be substituted. The AssoCiation shall have: the authority to and interest in insuring any property for which it has maintenance. or repair responsibility, regardless of ownership; All property insurance policies , obtained by the Association shall have poiicy limits sufficient to cover the full replacement cost of the ' insured improvements; . ,. i . .
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(ii) Commercial general liability insUrance on the Area of Corilmon Responsibility, .
insuring the Association and its Members for damage or injury caused by the negligence of the 'Association or any of its Members, employees, agents, or contractors while acting on its behalf. If.·' generally available at reasonable cost, the commercial general liability coverage (including primary and , any umbrella coverage) shall have a limit of at least $1,000,000.00 per occurrence with respect to bodily . injury, personal injury, and property damage, provided should additional coverage and higher limits be available at reasonable cost which a reasonably prudent person would obtain, the Association'shall obtain such additional coverages or limits;' . ' ' " . ,(iii).Workers compensation insurance imdemployers' liability ifand to the required by law; .". ,',' ....• .... ..... ......., ....
(iv) .Directors and officers liability coverage;
. (v) ..' Fidelity ,covering all PersonS responsible for handlingAssociation , funds in' lin amount determined in the Board's best busmess judgment but n'ot less than an amount equal .
to one-sixth of the, annual General Assessments, on all Units plus rescrveson fum.d.Fidelity insurance .
policies shall contain a waiver of all defenses based upon the exclusion of Persons serving without compensation; and . . .
(vi) Such additional insurance as the Board, in its best business judgment, determines advisable, which may include, without limitation, flood insurance, boiler and machinery insurance,and building ordinance coverage. ' . .:. . . . .
In addition,' the ASs()ciation may obtain and maintain property insurance on the insurable improvements within any :Neighborhood in such amounts and with such coverages as the Owners in such .
Neighborhood may agree upon pursuant to Section 3.3. Any such policies shall provide for a certificate ofinsurance to' be furnished to the Neighborhood Association and to the Owner of each Unit insured Upon' -
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.. on behalf'of Neighborhood shall charged to theOWnCrs ofUnits Within the benefitted Neighborhood . ' as a Neighborhood Assessment; arid (il) premiums for insurance on Exclusive Conunon Areas may be included in the Neighborhood ASsessment of the Neighborhood(s) benefitted unless the Board of Directors reasonably determines that other treatment of the premiums is more appropriate.. The' . Association shall have no insurance responsibility for any portion.ofthe Private Amenities. .
(b) Policy Requirements.. The Association shall arrange. for an annual review of the sufficiency of.insurance coverage by on'e or more qualified Persons, at least one or whom must' be familiar With insurablereplacemeJit costs in Jackson County, Georgia. .
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All Association policies shail provide for a to be furnished to each Member insured and to the Association upon request. .
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..The policies may contain a reasonable deductible and the amount thereof shall not. be subtracted.
from .the face amount of the policy in detcmmning whether the policy limitS satisfy the requirements of Section 6.1(a). In the event of an insured loss, the. deductible shall be treated asa Coriunon Expense or a Neighborhood Expense in the same manner as the premiums for the applicable insurance coverage.
However, if the Board reasonably determines, after notice and an opportunity to be heard in accordance with the By-Laws, that the loss is the result of the negligence or Willful misconduct of one or more Owners, their guests, invitees, or lessees, then the Board may specifically assess .the full amount of such deductible against such Owner(s)'andtheir Units pursuant to Section 8.7.
.All insurance coverage obt3ined by the Board shall:
(i) be written With a company authorized to do business in the State of Georgia.
which satisfies the requirements of the Federal National Mortgage Association, or such other secondary .
mortgage market agencies or federal agencies as the Board deems appropriate;
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. (il) be written in the name of the Association as trustee for the 'benefitted parties.' Policies on the COrnnlon' Areas sluiIl be for the benefit of the Association and' the Owners. Policies secured on behalf of a Neighborhood shall be for ·the benefit of the Owners of Units Within the Neighborhood and their Mortgagees, as their interests may appear;
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. (iii) or their Mortgagees individually; .
. not be brought into contribution withinsurance purchased by Owners, occupants, (iv) contain an inflation guard endorsement; and .
(v) include an agreed amount endorsement, if the policy containsa'co-insurance .
clause.
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In addition, the Board shall use reasonable efforts to secure insurance policies which list the Owners as additional inSureds 'and provide: .
(vi) a waiver of subrogation as to any claims against' the Association's Board, officers, employees, and its manager, the Owners and their tenants, servants, agents, and guests;
(vii) a waiver ofthe insurer's rights to repair and reconstruct instead ofpaying cash;
(viii) an cancellation. invalidation. susoension. or non-renewal
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violation without prior written demand to the Association to 'cure the defect or violation andallowanceof a reasonable time to cure; , ' (ix) an endorsement excluding Owners' individual policies from consideration under' any "other insurance" clause; , '
(x) an endorsement requiring at least 30 Days'prior ofany cancellation, substantial modification, or non-renewal; , ' ' , (xi) a cross liability provision; and . . . .' (xii) a provision vesting the Board with the exclusive authority to iosses;
provided however, no Mortgagee having an interest in such losses may be prohibited from participating in the settlement negotiations, ifany, related to the loss. '" ' . '..
(c) Damageattd hmnediately after damage or destruction to all or any part of the Properties covered by,insurance written in the name of the Association" the, Board or its duly , authorized agent shall file and adjust all insurance claims and obtain reliable and detailed estimates of the' cost of repair or reconstruction. Repair or reconstruction, as used in this subsection means repairing or restoring the property to substantially the condition in which it existed prior to the dama'ge, allowing for changes or improvements necessitated by changes in applicable building codes. ' , , , Any damage to or of the Common Area shall be repaired or reconstructed unless at ' ',' least 67% ofthe total Class "A" votes in the Association, and the Class "B" Member, if any, decide within 60 Oays,after the loss not to repair orreconstruct. ' , If either the insurance proceeds or reliable, and detailed estimates of the cost of repair or , reconstruction, or both, are not available to the Association within such 60-Day period, then the period shall be until such fimds or information are available. However, such extension shall not exceed, 60 additiOnal Days. No Mortgagee shall have the right to participateinthe determination of whether the , damage ordestrucnon to the Common Area shall be repaired or reconstructed. " ' . . . . . .
, Ifdetermined in the manner described abOve that the damage or destruction to the', Common AXea" ' ' shall not be repaired or reconstructed and no alternative improvements' lire '!1uthOrized" the affected ,property shall be cleared ofall debris and ruins and thereafter shall be maintained by the Association in a neat and attractive, landscaped condition consistent with the Cooununity'-Wide Standard.
Any insurance proceeds remaining after paYing the costs ofrepair or or after such settlement as is necessary and appropriate, shall be retained by and for the benefit of the Association or , ' the Neighborhood, as appropriate, and placed in a capital improvements account. TIris is a covenant for , the benefit ofMortgagees and may be enforced by the Mortgagee ofany affectedUnit. ' . '.' .
If proceeds are insufficient to cover the costs of repair or reconstruction, the Board of Directors may, without a vote of the Members, levy Special Assessments to cover the shortfall against " those Owners responsible for the premiums for the applicable insurance coverage under Section 6.1 (a).
. ' .' '.' 6.2. Owners' By virtue 'of taking title to a Unit, each OwDercovenants and agrees ' with all other Owners and with the Association to carry property insurance for the full replacement cost of all insurable improvements on his or her Unit, less a reasonabie deductible, unless. either the Neighborhood Association (if any) for the NeighborhoOd in which the Unit is located or the Association carries such insurance (which they may, but· are not obligated. to do hereunder). If the Association ....T:92796.4 20
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, . , .assumes responsibility for obtaining any insurance coverage on behalf of Owners, the premiums for such insurance shall be levied as a Specific Assessment against the benefitted Unit and the Owner thereof pursuant to Section 8.7.
. . Each Owner further covenants and agrees in the event of daInage to or destruction of structures on or comprisirig his Unit, the Owner shall proceed promptly to repair or to reconstruct in a inanner consistent with the original construction or such other plans and specifications as are approved in 'accordance with Article 9. The ARB shall have the authority'to establish time periods for commencing and completing any repair or reconstruction. ' Alternatively, the Owner shall clear the Unit of all debris and ruinsimd maintain the Unit in a neat and attractive, landscaped condition consistent with the Community,.Wide Standard., The Owner shall pay any costs which are not covered by insurance, ,. proceeds. . ,.
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.. The requirements of this Section shall apply to any. Neighborhood that owns cominon ' ' property within the Neighborhood in the same manner as ifthe Neighborhood Association were an Owner and the common property were a Unit. Additional recorded covenants applicable to any Neighborhood may establish more stringent requirementS for insurance and more stringent standards for rebuilding or .
reconstructing structures on' the Units within such Neighborhood and for. clearing and maintaining the .Units in the event the structures are not rebuilt or reconstructed.
6.3. Limitation of Liabilitv. Notwithstanding· the duty of the Association to maintain and repair portions of the Common Area, neither the Association, its Board of Directors, its successors· or assigns, nor any officer or director or committee member, employee, agent, contractor (including the management company, if any) of any of them· shall be liable to 'any Member or any member of a Member's immediate household for any injury or damage sustained iIi the, Area' of Common' Responsibility, the Common Area or other area maintained by the Association, or for any injury or damage caused by the negligence or misconduct of any Members or their family members, guests, invitees, agents, servants, contractors or lessees, whether such loss occurs in the Common Area or iIi individual Units. ' , ' Each Owner, by virtue of the acceptance of to his or herUnit, and each other Person having an interest iii or right to use any portion of the Properties, by virtue of accepting such interest or right to USe, shallbe bound by,this Section and shall be deemed to have automatically waived any and all rights, ., ,claims, demands, and causes of action against the Association arising from or connected with any matter .
for which the liability ofthe Association has been disclaimed under this Section. .
ARTICLE 7
ANNEXATION AND WITHDRAWAL OF PROPERTY '
.. 7.1. Annexation by Declarant. Until 20years after the recording of this in the Public Records, Declarant may from time to time unilaterally subject to the provisions of this Declaration all or any portion of the Additional Property. The Declarant may transfer or assign this right to annex property, provided that the transferee or assignee is the developer of at least a portion ofthe real property .
. described in Exhtbits "A" or "B" and that such transfer is memorialized in a written, recorded instrument executed by Declarant ' . ...
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Such annexation shall be .accomplished by filing a Supplemental Declaration in the Public Records describing the property being annexed Such Supplemental Declaration shall not require the , consent of Members, but shall require the consent ofthe owner of such property, if other than Declarant.
Any such annexation shall be effective upon the filing for record ofsuch Supplemental Declaration unless ,otherwise provided therein. . .. ' AT:927,96.4 21 'W-j
Nothing in this Declaration'shall be construed to the Declarant or any successor to annex or develop any ofthe Additional Property in any manner whatsoever. .
7.2. Annexation bvMemhership. The Association may any real property to the provisions of this Declaration with the' consent of the owner of such property,the affirmative vote of Members representing a Majority of the Class "A" votes ofthe Association represented at a meeting duly called for such purpose, the written consent ofthe Declarant during the I?evelopment Period. . .
Such annexation shall be accomplished by filing a' Supplemental Declaration describing the ..
property being annexed in:the Public Records. Any such SUpplemental Declaration shall be signed by the • President and the Secretary of the Association, and by the owner of the annexed property, and by the ..
Declarant, if the Declarant's consent is required. Any such annexation shall be effective upon filing"
unless otherwise provided therein.
'" 7.3. Withdrawal of Property. The Declarant reserves the right to amend this Declaration .
· during the Development Period, for the purpose of removing any, portion of the Properties from the coverage ofthis Declaration; provided such withdrawal is not contrary to the overall, unifonn scheme of development for the Properties.. By way ,of example, and not limitation, of the foregoing, a removal of .
property for the purpose of (i) adjusting boundary lines, (ii). complying with,any applicable governmental statute, rule, regulation or judicial determination, (iii) enabling any reputable title insurance company to issue title coverage regarding the Properties or on ,any portion thereof, (iv) enabling any institutional or governmental lender, purchaser, insurer' or .guarantor of Mortgage loans, including for example,' the .
Federal National Mortgage Association or Federal Home Loan Mortgage Corporation, to make, purchase, · insure or guarantee Mortgage loans on the Units, (v) satisfying the requirements of any local, state or · federal governmental ageIlcy, or (vi) exempting any tracts of land, either designated now or in the future for nonresidential development, from the provisions of this Declaration, shall be deemed as a' permissible' withdrawal which is not inconsistent with the overall unifonn scheme of development. Such amendment shall not require the consent of any Person other than the owner of the property to be withdrawn. if not the Declarant. Ifthe, property is Common Area, the Association shall consent to s\lch withdrawal.
. 704. '. '. Additional Covenants and' Easements.· ,The DCclarantmay umlaterally SUbject" any .portion of the Properties, to additional covenants and, easements, including covenants obligating the Association to maintain arid inSure such property on behalf of the Owners and obligating such Owners to '.
pay the costs incurred by the Association through Neighborhood AssesSments. Such additional covenants , and easements shall be set forth in a Supplemental Declarationfiled either concurrently with or after the annexation of the subject property, and shall require the written consent ofthe owner(s) of such property, ifother than the Declarant. Any such Supplemental Declaration may supplement, create exceptions to, or · otherwise modify the of this.Declaration as it applies to the subject property in order to reflect the different character and intended use ofsuch property.
7.5. .AmendrDent. This Article shall not be amended during the Development Period without the prior written consent ofDeclarant..
"." i' ARTICLES' .ASSESSMENTS .' .
8.1. Creation of Assessments. There are hereby forAssociation expenses' .' as the Board may specifically authorize from time to time. There shall be four types of assessments: (a)
General Assessments to fund Cortunon Expenses for the general benefit of aU Units; (b) Neighborhood . Assessments for Neighborhood Expenses benefitting only Units within a particular Neighborhood or Neighborhoods; (c) Special Assessments as described in Section 8.6; and (d) Specific Assessments as AT:92796.4 22
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· .' described in Section 8.7..'Each Owner, by accepting a deed or into a contract of sale. fOf any ...
portion ofthe Properties, is deemed to covenant and to pay these assessments. .' ..
. All assessments a:nd fees, together with late charges, costs of collection, arid attorneys.fees, shall be a charge and continuing lien upon each Unit against which the assessment is made .Wltil paid, as more particularly provided in Section 8.8. Each such assessment, together with interest, late charges, costs, and reasonable attorneys fees,also shall be the personal obligation ofthe Person who was .
the Owner ofsuch Unit at the time the assessment arose. Upon a transfer of title to a Unit, the grantee' shall be jointly and severally liable for any assessments and other charges due at the time ofconveyaitce. '.' However, no first Mortgagee who. obtains title to a Unit by exercising the remedies provided in its Mortgage or through a deed in lieu of foreclosure shall be liable for unpaid assessments which accrued prior to such acqUisition oftitle. . .
The Association shall, upon request, furnish to any Owner liable for any type of assessment a ·written statement signed by an Association officer setting forth whether such assessment has been paid.
Such. statement' shall be conclusive evidence of payment. The Association may require the advance payment of a reasonable processing fee for the issuance of such statement: .
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.Assessments shall be paid in such manner and on such dates as the Board may establish, which · .may include discoWlts for early payment' or similar time/price differentials. The .Board may require .
advance payment of assessments at closing of' the transfer of title to a Unit and impose special ·requirements for Owners with a history of delinquent payment. Ifthe Board so elects, assessments may .' be paid in two or more installments. Unless the Board otherwise provides, the General Assessment and any Neighborhood Assessment shall be due and payable in advance on the first day of each fiscal year. If any Owner is delinquent in paying any assessments or other charges levied on his Unit, the Board may require any unpaid installments of all outstanding assessments to be paid in full immediately. Any assessment or installment thereof shall be considered delinquent on the 15th day following the due date unless otherwise specified by Board resolution.
No Owner may exeIDpt himself from liabilitY for assessments by of Common Area, · including Exclusive Common Area reserved for such Owner's use, abandonment ofhis Unit, or any other · means. The obligation to pay assessments is a separate and independent covenant on the part of each Owner. No diminution or abatement ofassessments or set-off shall be claimed or allowed for any alleged ·failure. of the Association or Board to take some action or perform some function required of it, or for .
· inconvenience or discomfort arising from themaIdng of repairs or improvements, or from any other action it takes. . . .
The AssocIation is specifically authorized to enter into subsidy contracts or contracts for "in ·kind" contribution of services, materials, or a combination of services and materiaJs with the Dechirant or other entities for payment ofCommon Expenses. .
8.2.· Declarant's Obligation for Assessments. During the Class ."B" Control Period, Declarant may annually elect either to pay an amoWlt equal to regular assessments on. all of its unSold Units or to pay the difference between the amount of assessments levied on 'all other Units subject to assessment and the amount of actual expenditures by the Association during the fiscal year. Unless the Declarant otherwise notifies the Board. in writing at least 60 Days before the beginning ofeach fiscal year, the Declarant shall be deemed to have elected to continue paying on the same basis as during the immediately . preceding fiScal year. The Declarant's obligations hereWlder may be satisfied in. the form of cash or by "in kind" contributions ofservices or materials, or by a combination ofthese.
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. 8.3.' Computation of General Assessment. At least 30 Days before the beginning of each fiscal year, the Board shall prepare a budget covering the estimated Common Expenses during the coming '. year, which may include; a capital contribution to establish a reserve fund iIi accordance with it budget separately prepared as providedinSection 8.5. .' . -_.... . .
. '. General Assessments shall be levied equally agaU1st all Units' subject to asseSsment and shall be .
set at a level which is reasonably expected to produce total income for the Association equal to the total budgeted Common Expenses. including reserves•. In detennining the total funds to be generated thiough .' the levy of General Assessments, the Board, in its discretion. .may consider other sources of funds .
available to the including any surplus from prior years an4 any assessment income expected to be generated from any additional Units reasonably anticipated to become subject to assessment during the fiscal year. .
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During the Class "B" Control Period, the Declarant may; but shall not be obligated to, reduce the .
·General Assessment for any fiscal yearby payment of a subsidy and/or contnbutions of services and .
materials (ui addition to any amountS paid by.Declarant under Section 8.2), which'may be treated as · either a contnbution or an advance against future assessments due from the Declarant, or a in the Declarant's discretion.· Any such anticipated payment or contnbutionby the Declarant shall be disclosed · as a line item in the Conunon Expense budget. Payments by the Declarant in any year shall under no circUmstances obligate the Declarant to continue such payments in future years and the treatment of such payment shall be made known to' the membership, unless otherwise provided in a written agreement · between the Associati.on and the Declarant . . . .
. . '. '. . " ", ',' . The Board shall send a copy of the budget notice of the the GerieralAssessment ·for the following year to each Owner least 30 Days prior to the begmmng of the fiscal year for which it · is to be effective. Such budgetand assessment shall bCcome effective unless disapproved at a meeting of· · Members representing at least 67% of the total Class "A" votes in the AsSociation and by the Declarant;
· during the Development Period. There shall be no obligation to call a meeting for the purpose of considering the budget except on petition of the Members as provided for special meetings in Section 2.4 of the By-Laws, which petition must be presented to the Board within 20Days after delivery of the notice .·of assessments. If a meeting is requested, assessments pursuant to $uch proposed budget shall not become effective until such meeting is' held,provided .such assessments shall be retroactive to the .
original effective date ofthe budget ifthe budget is not disapproved at such meeting. .
Ifthe proposed budget is disapproved or the Board fails for any r!=ason to· determirie the budget for any year, then until such time as a budget is detennined, the budget in effect for the immediately preceding year shall continue for the current year. The Board shall send a copy of the revised budget to each Owner at least 30 Days prior to its becoming effective. The revised budget shall become effective disapproved inaccqrdance with the above procedure. .' . .
8.4. of Neighborhood ASsessments•. At .least 30 Days the beginning of ...
·each· fiscal year, the Board shall prepare a' separate budget covering the estimated. Neighborhood .
Expenses for each Neighborhood on whose behalf Neighborhood Expenses are expected to be incurred during the coming year. The Board shall be entitledto set such budget only tothe extent that this Declaration, any Supplemental Declaration, or the By-Laws specifically authorizes the Board to assess certain costs as a Neighborhood 'Assessment.' Any Neighborhood may request that additional services or ...a higher level of services be provided by the Association and, upon approval. of Owners in accordance ; with Section 3.3(a), any additional costs shall be added to such budget. Such budget may include a contribution establishing·li reserve fund for repair and replacement of capital items maintained as a Neighborhood Expense, if any, within the Neighborhood. Neighborhood Expenses shall be allocated AT:92796.4 . 24
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equally among all Units Within the Neighborhood(s) benefitted thereby and levied a Neiihborhood ..
Assessment.' . .
The Board shall cause a copy of such budget and notice of the amount of Neighborhood '. Assessment for the coming year to be delivered to each Owner ofaVnit in the Neighborhood at least 30 Days prior to the beginning ofthe fiscal year. Such budget and assessment shall become effeCtive unless .disapproved by Owners of a .Majority. of the Units in the Neighborhood to which the Neighborhood Assessment applies and by the Declarant, during the Development Period. There shall be no obligation to call a meeting for the purpose of considering the budget except on petition of oWners of at least 10% of ... the Units in such Neighborhood. This right to disapprove shall only apply to those line iteIIl$ in the .
Neighborhood budget which are attributable to services requested by the Neighborhood. Ifa meeting is requested, assessments pursuant to such proposed budget shall not become effective until after such meeting is held, provided such assessments shall be retroactive to the original effective date ofthe budget .ifthe budget is not disapproved at such meeting..
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Ifthe Owners within any Neighborhood disapprove any. line item of it Neighborhood budget, the ·'Association sha:I1.not be obligated to provide the services anticipated to be funded by suchline item ofthe .' budget. Ifthe aoard fails for any reason to determine a Neighborhood budget for any year, then until such time as a budget is determined, the budget in effect for the immediately preceding year shall ...• continue for the clirrentyear. . , , .
8.5. Reserve Budget and Capital Contribution. The Board, in its sole discretion, may annually prepare reserve budgets for both general and Neighborhood purposes which take into account the number and nature of replaceable assets within the Area of Common Responsibility, the expected life of each asset, and ,the expected repair or replacement cost. The Board may include in the budget a capital.
contribution in an amount sufficient to permit meeting the projected needs of the Association, as shown On the reserve budget, with respect both to amount and timing by annual General Assessments or Neighborhood Assessments, as appropriate, over thebudget period.
8.6. .Special Assessments.' In addition to other authorized assessments, the Association may levy Special Assessments from time to time to cover unbudgeted eXpenses or expenses in excess of those budgeted. Any such Special Assessment may be levied against all Units, if such Special Assessment is " .. for Common Expenses, or against the Units any Neighborhood ifsuch Special· Assessment is for .
.Neighborhood Expenses. Special Assessments shall be allocated equally among all Units siJbject to such Special Assessment. .Any Special Assessment shall become effective unless disapproved at a meeting of Members representing at least 67%.ofthe total Class "AU votes allocated to Units which will be subject to such Special'Assessment and by the Declarant'during the Development Period. There shall be no .' . obligation to call a'meeting for the purpose of considering any Special Assessment except on petition of the Members as provided for special meetings in Section 2.4 of the By-Laws, which petition must be' presented to the Board within 20 Days after delivery of the notice of such Special Assessment. Special . Assessments shall be payable in such manner and at such times as determined by the Board, and may be' '. payableiJi installments extending beyond the fiscal year in which the Special Assessment is approved:
8.7. Specific Assessments. The Association shall have the power to levy Specific , Assessments against a particularUnit or Units as follows:
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(a) ,to cover the costs, iItcludingoverhead and costs, of providing benefits, '. items, or services to the Unit(s) or occupants thereof upon request 'of the Owner pursqant to a menu of special services which the Board may from time to time authorize to be offered to OWners and occupants .. (which might include, without limitation, landscape maintenance, janitorial service, pest control, etc.), AT:92796.4 . 2S
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.'which'assessments may levied in deposit against charges to be incurred by the Owner;
of the provision of the requested benefit, item or sefvice as a .
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. 8.8.·· . Lien for Assessments.' The Association shall have a .lien against each Unit to secure ..
payment of assessments arid other charges,as well as interest at a rate to be set by the Board (subject to •'.
the maximum interest rate limitations of Georgia law), late charges in such amount as the Board may establish (subject to the limitations of Georgia law), costs of collection and reasonable attorneys Such lien shall be superior to all other liens, except (a) the liens ofall taxes, bonds, assessments,aiId other levies which by .law would be' superior, and (b) the lien or charge of any first Mortgage of record . (meaning any recorded Mortgage with first priority over other Mortgages) made in good faith and for value. Such lien may be enforced by suit,judgment, and judicial or nonjudicial foreclosure. .
The Declarant or the Association may bid for the Unit at the foreclosure sale and acquire, hold, lease, mortgage, and convey the Unit. While a Unit is owned by the Association following foreclosure: .'
(a) no right to vote shall be exercised on its behalf; (b) no assessment shall be levied on it; and (c) each other Unit shall be charged, in .addition to its usual assessment, its pro' rata share of the assessment allocated to the Unit owned by the Association; .The Association may sue for unpaid assessments and charges authorizedheretmder without foreclosing or waiving the lien securing the same.' .
The sale or transfer of any Unit shall not affect the assessment lien or relieve such Unit from the lien for any subsequent assessments. However, the sale or transfer of any Unit pursuant t9 foreclosure of the first'Mortgage shall extinguish the lien as to any installments of such assessments due prior to such' sale or transfer.· A Mortgagee or other purchaser ofa Unit who obtains title pursuant to foreclosure ofthe..
Mortgage shall not pe personally liable for assessments on such Unit due prior to such acquiSition oftitle..
Such unpaid assessments shall be deemed to be Common Expenses collectible from Owners of all Units subject to assessment under Section 8.9, including such acquirer, its successors and assigns.
_ Au other Persons' acquiring liens or encumbrances' on any Unit after this Declaration been .
recorded shall be deemed to consent that such liens or encumbrances shall be inferior to future liens for assessments, as provided \1erein, whether or not prior consent is specifically set forth in the instruments creating such Hens or encUmbrances. '.. .
. .
8.9. Date of Commencement· of Assessments. '. The obligation to pay assessments' shall . commence as to each Unit on the date that such Unit is conveyed to a Person other than a Builder or Declarant. With respect to any Unit owned bya Builder, assessments shall commence upon the earlier of
(a) actual occupancy of such Unit, excluding any period that such Unit is being used exclusively as a AT:92796.4 . 26
." '.. . .' .'. .
model home or a sales office approved by Declarant; or (b) one year from the datetluit such Builder or · any entity or Person related to such Builder acquired tide to such Unit.. The first annual General Assessment and Neighborhood Assessment, ifany, levied on each Unit shall be adjusted according to the· number ofDays remaining in the 5.10 -Failure to Assess. Failure of the Board to fix assessment amounts or rates· or to deliver or .mail each Owner an assessment notice shall not be deemed a· waiver, · modification, or a release of any Owner.from the obligation to pay assessments. In such event, each Owner shall continue to pay General Assessments and Neighborhood Assessments on the same basis as · durfug the last year for which an assessment was made, if any, until a new assessment is levied, at which tiIUe the Association may retroactively assess any shortfalls in collections. .
.. .
8.10. Exempt Property.· The following property shall be exempt from payment of General Assessments, Neighborhood Assessments, and Special Assessments:
. . .
.(a) .. • All Conunon Area and such portions of the property owned by the Declarant as are included in the Area of Common Responsibility pursuant to Section 5.1;
(b) Any property dedicated·to and accepted by·any govemlnental authority or public utility;.
and·.
. .
(c) . Property owned by any Neighborhood AssoCiation for the common use and enjoyment of ..
·its members, or owned by the members ofa Neighborhood Association as tenants-in-conunon. . .. .
. '. . :. .'. .'. . .
· 8.11. Capitalization·of Association. Upori acquisition of record. tide to a Unit by the first Owner thereof other than the Declarant, a contribution shall be made by or on behalf of the purchaser to the working capital of the Association in an amount equal to the greater of one hundred·dollars or one· sixth ofthe annual General ASsessment per Unit for that year..This amount Shall be in addition to, not in lieu of, the annual General Assessment and shall not be considered an advance payment of such .
assessment This amount shall be collected and disbursed to the' Association at closing of the purchase and sale ofthe Unit to the first owner, the capital contribution shall be paid inuitediately.upon demand by the Association. Capital contributions shall be used by the Association in covering operating expenses and other expenses incurred by the Association pursuant to the' Governing Documents.
ARTICLE 9
ARCHITECTURAL STANDARDS· .
. .9.1. ... General. No exterior structure or improvement, as described in Section 9.Sshall be ·placed, erected,. installed or ·made· upon any Unit or adjacent to any Unit where the purpose· of the .
structure is to service such Unit,and no improvements shall be permitted except in compliance with this .
Article,' and with the prior written approval of the appropriate reviewing body under Section 9.2, unless· . exempted from the application and approval requirements pursuant to Section 9.3.
Any Owner may remodel, paint. or redecorate the interior of struc.tures on his Unit without approvaL.· However,· modifications to the interior of porches, screened porches,· patios, and similar.
portions ofa Unit visible from outside the structures on the Unit shall be subject to approval.
. '. . . . .
All dwellings constructed on any portion of the Properties shall be designed by and built in accordance with the plans and specifications of Ii licensed architect unless Declarant or its designee otherwise approves in its sole discretion. .
This Article shall not apply to the activities of the Declarant, nor to Common Area by or on behalfofthe Association or to improvements to any Private Amenity.
to the AT:!J2796.4 27
.(: This. Article may not· be amended without the. Declarant'$ written. cODsent during the Development Period.
.9.2. Architectural Review Responsibility administraticniof'the .Design. Guidelines and' . .
review of all applications for construction and modifications under this iArticle shall be handled by the · ARB, the members of which need not be Members of the Association or representatives ofMembers,' and . may, but need not,· architects,.. landscape architects, engineers 9r similar professionals, whose ·compensation, ifany, .shall be established fromtinie to time by the ARB.' The ARB· may establish and . charge reasonable fees for review of applications hereunder and may require such fees to be paid in full prior to review of any application. Such fees may include the reasonable costs incmred by the ARB in having any application reviewed by architects, engineers or other professionals. '. .
The ARB shall have' exClusive jurisdiction over all construction on any portion of the Properties.
Until 100% ofthe Properties have been developedaildconveyed to Owners other than Builders, and initial construction on each Unit has been completed in accordance .with the .Design Guidelines,the Declarant retains the right to appoint all members of the ARB which may consist ofone or more Persons, .
. who shall serve at the Declarant's discretion.. There shall be no sUrrender of this right prior to that time except in a written instniment in recordable fonn executed by Declarant.· Upon the expiration or' .surrender of such right, the Board shall appoint the members of the ARB who shall.thereafter serve and may l>eremoved in the Board's discretion.
9.3. Guidelines and Procedures.' '. ......".
(a) Design Guidelines. The Declarant shall prepare the initial Design Guidelines for the Properties. The Design Guidelines may contain general provisions applicable to all of the Properties, as well as specific provisions which vary according to land use and from one portion of the Properties to another dePending upon the location, unique characteristics, and intended use. For example, by way of illustration but not limitation, the Design Guidelines may impose stricter requirements on those portions of the Properties adjacent to or visible from any Private Amenity or any lake, river, stream or other .
body of water. The' Design Guidelines are intended to provide guidance to Owners and Builders regarding matters of particular concern to the committees in considerin$ applications hereunder. ' The Design Guidelines are not the exclusive basis for decisions of the coinmittees and compliance with the .
·Design Guidelines does not guarantee approval ofany application. .
. The ARB shalladcipt the Design Guidelines prior to Closing on the flI'St Unit and thereafter shall '.
have sole and full authority to amend them. Any amendments to the Design Guidelines shall be prospective only and shall not apply to require modifications to or removal of structures previously approved once the construction or modification has commenced. There shall be no limitation' on the scope of amendments to the Design Guidelines; the ARB is expressly authorized to amend the Design Guidelines to remove requirements previously imposed or otherwise to make the Design Guidelines less restrictive. The ARB shall make the Design Guidelines available to Owners and Builders who seek to engage in deVelopment or construction within the Properties. . . . .
(b) Procedures;' Plans and specifications showing. the nature, kind., shape, color, size, materials, and location of all proposed structures and improvements sIulll pe submitted to the appropriate comm,ittee for review and approval (or disapproval). In addition, infonnation concerning. irrigation systems, drainage, lighting, landscaping and other features ofproposed construction shall be submitted as applicable and as required by the Design Guidelines.. In reviewing each submission, the committees may .
consider the quality ofworkmanship and design, harmony ofexternal design with existing structures, and' location in relation to surroUnding structures, topography, and fInish grade elevation, among other.
AT:92796.4 28
. , .
9,2 considerationS. DecisionS of thecormnittees be based solely on aesthetic considerations.' Each .Owner acknowledges that opinions on aesthetic matters are subjective and may vary over time.
. '. .' . . .' .
.In the everit that the ARB fails to approve or to disapprove any application withfu 30 Days after submission of all infonnationand materials· reasonably requested, the application shall be deemed approved. However, no approval, whether expressly granted or deemed granted pursuant to the foregoing, shall be inconsistent with the Design Guideline.s unless a variance has been granted in Writing · by the ARB pursuant to Section 9.8. . . ". . .. .
above, the ARB by resolution certain' activities' from the ·application and approval requirements of this Article, provided such aciivitiesare undertaken in strict compliance with the requirements of such resolution. . . .
9.4. .Architect. Builder and General Contractor Ap'proval. All architects,Builders and general' contractors must be approved by the ARB prior to engaging in any construction activities.. The ARB shall implement an approval process utiliZing established criteria and requiring the submission of a ·written application for approval.' Approval of architects, Buildeciand contractors may not be construed ·as a recommendation of a specific architect,' Builder or contractor by the ARB or the Declarant, nor a .
guarantee or endorsement of the work of such architect, Builder or contractor. .Once approved (unless such approval is withdrawn by the ARB), an approved architect, Builder or c.ontractor shall not be .
required to re-submitto the approval process.' .
9.5. Specific Guidelines and Restrictions.'.
(a) Exterior Structures and Improvements. Exterior structures'and improvements shall' include, but shall not be limited to, staking, clearing, excavation, grading and other site wode; installation of utility lines or drainage improvements; initial construction ofany dwelling or accessory building;
exterior alteration of existing improvements; installation or replacement of mailboxes; basketball hoops;
swing sets and similar sports arid play equipment; clotheslines; garbage cans; woodpiles; .swirnriring pools; gazebos or playhouses; window air-Conditioning umts· or fans; hot tubs; solar panels; antenruis:
satellite dishes or any other apparatus for the transmission or reception of television, radio, satellite, or other signals of any kind; hedges, walls, dog runs, animal pens, or fences ofany kind, including invisible fences; artificial vegetation or sculpture; 'and planting or removal' of landscaping materials.
Notwithstanding the foregoing, the Declarant and the Association shall regulate antennas, satellite dishes, .
or any other apparatus for the transmission or reception of television, radio, satellite or other signals of any kind only in strictcompliance \Vith allJederal laws and regulations. .
(b) In'addition to the foregoing' activities requiring prior approVal; the folloWing items are strictly regulated, and the reviewing body shall have the right, in its sole discretion, to prohibit or restrict these items within the Properties. Each Owner must strictly comply with the terms of this Section wiless approval or waiver in writing is obtained from the appropriate reviewing body. The ARB may, but is not required tO,adopt specific guidelines as part of the Design Guidelines or rules and regulations which address the following items. .
. .
. . (i)' Signs. No "for sale" or "forrent" are the Properties. No other .
sign.ofany kind shall be erected by an Owner or occupant without the prior written consent of the ARB, as applicable, except (1) such signs as may be required by legal proceedings; and (2) not more than one'
(1) professional security sign of such size deemed reasonable by the ARB in its sole disCretion. Unless in compliance with this Section, no signs shall be posted erected by any Owner or Occupant within any portion ofthe Properties, including the Common Area, any Unit, any structure or dwelling located on the AT:92796.4· 29
. Common Area or any Umt (if such sign would be visible from of such structure or dwelling .as determined in the reviewing body's sole discretion).or from any Private Amenity. .
'.' . . .':. . . '. .
. . .
. The Declarant· and the ARB· reserve the right. to prohIbit signs and to restrict the size, content, color. lettering, design and placement ofany approved signs. All authorized signs must be professionally prepared. This provision sh8l1 not apply to entry; directional. or other signs installed by the Declarant or its duly authorized agent as may be necessary or convenient for the marketing and development of the Properties,· including, without limitation, "for sale" signs installed by Declarant and Builder signs· installed in accordance with the Design Guidelines. . . .
. . (ii)Tree RemovaI.No trees that are more than four (4) inches in diameter at a two (2) feet above the ground shall be removed without the prior written consent of the ARB; provided however,any trees, regardless of their diameter, that are located within ten (10) feet ofa drainage area, a .... residence, or a driveway, 9r any diseased or dead trees needing to be removed to promote the growth of .
other trees or for safety reasons may be removed without the written consent of the ARB. The ARB may ·.adopt or impose requirements for, or condition approval of, tree removal upon the replacement ofany tree removed. . . .
(iii) .Lighting. Exterior lightiDg visible from a public street shall not be permitted except for: (l)approved lighting as originally installed on a Unit; (2) one (1) approved decorative post light; (3) pathway lighting; (4) porch lighting (S) street lights in confobnity with an established street lighting program for the Properties; «(i) seasonal decorative lights during thC usual and common season;
or (7) front house illuniination of model homes. All street lights shall be installed or aimed so as to minimize the potential for either a disabling glare to drivers or pedestrians or. a .nuisance glare to· •.. neighboring properties. .
(iv) .Ternporiuy or Detached Structures.. Except as rMY be permitted by.the Declarant· · during initial construction; or the ARB thereafter, no temporary house. dwelling, garage, barn or our building shall be placed or erected on any Unit.· . . . .
. . . '.. '". . '. .
No mobile home,· trailer home, travel trailer,· camper or recreational. vehicle shall. be .stored, · parked or otherwise allowed to be placed on a Unit as a temporary or Pennanent dwelling. These recreational vehicles shall be subject to the restrictions set forth in Section 10.4 ofthe Declaration.
. . .
. .In addition, no modular home or manufactUred home shall be placed, erected, constructed or .
... permitted within the· ProJ?erties. . "Modular home 'and manufactured. home" .shall. include, without .
limitation, any prefabricated or pre-build dwelling which consists ofone or more transportable sections or .. components and shall alsd be deemed to include manufactUred building,· manufactured home,. modular .. bUilding,. modular home, :modular . and prefabricated construction. The placement of .. prefabricated and transpo!1kble sections onto a pennanent foundation and the inspection of the resulting structure by the building mspector shall not exempt such structure from this prohibition. . Prefabricated • accessory structures, such as sheds and gazebos, muSt be reviewed and approved in strict accordance with .
" Article 9 ofthe Declaration. .
(v) . Utility Lines. Overhead utility lines; including uhes television, are not permitted except for temporary lines as required during construction and lines· installed by or at the request ofDeclarimt. . I . . . .
. . (vi) Standard Mailboxes. .The ARB reserves right to approve the style; design, color and location prior to any original installation or replacement of any mailbox and may require the installation of a standard mailbox which may vary from one Neighborhood to another..Application shall AT:92796.4 . 30.
. be made to the ARB prior to.installation or replacement. By acceptinga deed to a·Unit,each Owner·· agrees tbatthe ARB may remove any nonapproved mailbox in a reasonable manner; all costs for same u shall be paid by Owner ofsuch Unit, and all claims for damages· caused by the ARB are waived.
Dwelling Size. .The· Design· .may establish a square footage ofenclosed, heated and cooled living space for residential dwellings, which minimum may vSryfrom one. (1) Neighborhood to another. Upon written requestof an Owner, the ARB may waive the .minimum square footage requirement if, in the ARB's sole· discretion, the resulting appearance of such residential dwelling will preserve and conform to the overall appearance, scheme, design, value .and quality within the Properties. .... .
(viii) Water Facilities.· No individual water supply' system shall be permitted within .' .... .' the Properties.
. . . .
. . .' '. ..
. ., . (ix)· . Fences and Hedges; All 'and hedges shall be installed in .. the Design Guidelines and unless otherwise approved by the ARB, shall be located at least two feet inside the property line... ..
(x) Water Lines..Boxes and Meters. The Declarant shall be responsible for the installation and maintenance of the following: (a)alJ water main lines and stub-outswithin the right-of- .
way designated for such purpose; (b) the water line up to the point of the placement of the water meter box; and (c) the water meter box'. The Owner shallbe responsible to pay the wilter utility supplier for the cost ofplacement ofthe water meter and shall additionally be responsible for the cost ofinstallation ofthe service line from the water meter to the structure on the Unit. Upon froal inSpection and approval of the water utility lines servicing the Unit by the water supplier, the water supplier shall have the right to exercise ownership of the water meter box, the water meter, and the service line from the wilter meter box .. . to the structure. Ifthe water suppler exercises such ownership, then such supplier shall be responsible for .
maintenance ofthe same. .. . .•.. .. . .. ..' .
. J
9.6. Construction Period. After of construction, each OwnershaIl diligently ·.continue construction to complete such construction in a timely manner. The initial construction of all structures must be completed within one (1) year after commencement of construction, uriless extended '. by the ARB in its sole discretion. All other construction shall be completed within the time limits established by the ARB at the time the project is approved bythe ARB.
. .
.For the of this Section,·commencement of construction shall meiln that (a)aJl plans for· such construction have been approved by the ARB; (b) a building permit has bCen issued for the Unit by the appropriate j\lrisdiction; and (c) construction of a .structure has physically commenced including site preparation and pouring of footings· or a slab foundatiOn,· as applicable. Completion·of a structure shall mean that a final certificate ofoccupancy has been issued by the appropriate jurisdiction for the Unit.
9.7; . No Waiver of FutUre AWrova1s.. Approval of proposals, plans and ,specifications, or drawings for any work done or proposed, or in connection with any other matter requiring approval, shall not be deemed to constitute a waiver of the right to withhold approval as to any similar proposals, plans and specifications, drawings,or other matters subsequently or additionally submitted for approval.
. 9.8. Variance. The ARB may authorize variances from c'ompliance with any of its guidelines and procedures when circumstances such as topography, natural obstructions, hardship, or aesthetic or· environmental considerations require, but only in accordance with duly adopted rules and regulations.
Such 'Variances may only be granted, however, when unique circumstances dictate and no variance shall
(a) be effective unless in writing; (b) be contrary to this Declaration; or (c) stop the ARB from denying a . AT:92796.4 31
· 1;, 9'v variance in other circwnstances.' For purposes of this Section, the inability to .obtain approval of any ..
governmental agency; the issuance of any pennit, or the tenns of any financing shall not be considered a hardship warranting a variance. . .
9.9. Limitation of Liability. The standards and procedures established pursuant to this Article.
are intend'ed .to provide a mechanism for maintaining and enhancing the overall aesthetics of the · Properties only, and shall not create any duty to any Person. Review and approVal of any application pursuant to this Article is made on the basis of aesthetic considerations only and the ARB shall bear no . responsibility for ensuring the structural integrity or sOWldness of approved construction or modifications the adequacy of soils· or drainage, nor fOf ensUring compliance With building codes and·. other .
governmental requirements. . Neither the Declarant, the Association, the Board, the ARB or any conunittee, or member of-any of the foregoing shaUbe held liable for any injury, damages, or loss arising out ofthe manner or quaI1ty of approved construction on or modifications to any Unit.· In all matters, th.e conunittees and their members shall be defended and indemnified by the Association as provided in Section 4.6. .. . . . .. ,. . ..' '.. . ,., . ...• . .
. .' '. .
9.10. Declarant, any member of the ARB, or the Board, or the, · representatives oreach shall have the right, dUring reasonable hours and after reasonable notice, to enter ....
. upon any Unit to inspect for the purpose of ascertaining whethcrany structure or improvement is in ,.
violation of this Article. Any structure, improvement or landscapmg placed or made in violation of this Article shall be deemed to be nonconforming. Upon written request from the ARB, Owners shall, at their own cost and expense, remove such structure or improvement and restore the property to substantially the same condition as existed prior to the nonconfonning work:. Should an Owner fail to remove and restore as required, any authorized agent of Declarant, the ARB, or the Board shall have the right to enter the property,remove the violation, and restore the property to substantially the same condition as previously· existed. Entry for such purposes and in compliance with this Section shall not constitute a trespass. In addition, the Board may enforce the decisions of the Declarant arid the ARB by any means of enforcement described in Section 4.3. All costs, together with the interest at the maximum rate then· allowed by law, may be assessed against the benefitted Unit and collected as a Specific Assessment.· Unless otherwise :specified in writing by the committee -granting approval, all approvals granted hereWlder shall be deemed conditioned upon completion of all elements of the approved work and all work previously approved with respect to the same Unit,W1less approval to modify any application has been obtained. In the event that any Person fails to commence and diligently pursue· to completion all .
approved work, ,the Association shall be authorized, after notice to the Owner of the Unit· and an opportunity to be heard in accordance with the By-Laws, to enter upon the Unit and remove or complete any incomplete work,and to assess all costs incurred against the Unit and the Owner thereof as a Specific .
Assessment. '.. . . .
Neither the ARB :or ariy member of the foregoing the AssoCiation, the Declarant, or their · members, officers or directors shall be held liable to any Person for exercising the rights granted by this Article. Any contractor,! subcontractor, agent, employee, or other invitee of an oWner who fails' to comply with the terms arid provisions of this Article or theDesign Guidelities may be excluded by the ARB from the Properties, to the notice and hearing procedures contained in the By-Laws.
. ,In addition to the'foregOing, the Association shall have the authority liUld standing to pursue all legal and equitable remedies available to enforce the provisions of thisArticle and the decisions of the ARB. ,. , .
AT:92796.4 32 .•.
..
, ARTICLE 10
USE RESTRlCflONS', 10.1. ' General. This Article sets out certain use restrictions wlrlchmust be complied with by all , , , 'Owners and occupants of any Unit. The Properties shall be used only, for residential, recreational, and related pwposes' (which may include, without limitation, model homes, sales offices for an information center and/or a sales office for any real estate broker retained by the Declarant to assist in the sale of property descn'bed on Exhibits or "B," offices for any property manager retained by the Association, business offices for the Declarant or the Association or related parking facilities) j;onsistent 'with this Declaration and any Supplemental Declaration. , , "
, 10.2. Rtiles and Regulations. Inaddition to the use restrictions set forth in this Article, the ,Board may, from time to time, without consent of the Members, promulgate, modify, or delete rules and' , regulations applicable to the Properties. Such rules shall be distn'buted to all Owners and occupants prior to the date that ,they are to become effective and shall thereafter be binding upon all Owners and ' occupants until and unless overruled, canceled, or modified in a regular or special meeting by a Majority , ofthe Members, and during theDevelopmentPeriod the written consent ofthe Declarant.
10.3. Residential Use. All Units may be' used only for residential purposes of a single family, and for ancillary business or home office iises. A business or home office shall be considered ancillary so long as: (a) the existence or operation of the activity is not apparent or detectable by sight, sound, or smell from outside the Unit; (b) the activity cOnfOrnls to all zoning requirements for the Properties; and limits the number of employees on the premises to not more than two (2) at any given time; provided, further that there is reasonable parking to acconunodate such employees; (c) the activity does not involve regular' ,visitation of the Unit by clients, customers, suppliers, or other invitees or door-to-door solicitation of residents of the Properties; (d) the activity does not increase traffic or include frequent deliveries within the Properties; and (e) the activity is consistent with the residential character of the Properties and does not constitute ,a nuisance, or a hazardous or offensive use, or threaten the security or safety of other ,residents ofthe Properties, as maybe determined in the sole discretion ofthe Board.
No real estate brokerage firms, real estate sales offices,or any other business directly or indirectly , selling and/or managing real property or improvements shall be permitted within the Properties except , with the prior written approval which may be deiUed in Declarant's sole discretion. No other ,trade or business activity shall be conducted upon a Unit without the prior written approval ofthe Board. "
The terms ''business'' and ''trade,'' as used in this provision, shall be construed to have their ordinary, , generally accepted meanings and shall include, without limitation, any occupation, work, or activity , undertaken on an ongoing basis which involves the provision of goods or services to persons other than the provider's' family and for which the provider receives a fee, compensation, or other form ,of consideration, regardless ,of whether: (a) such activity is engaged in full or part-time, (b) such activity is"
intended to or doesgenerate a profit, or (c) a license is required. ' , , The leasing of a Unit shall not be considered a business or trade within,the meanmg of this ,Section. This Section shall not apply to any activity conducted by the Declarant or a Builder approved by , the Declarant with respect to its development and sale of the Properties or its use of any Units which it owns within the Properties. ' '10.4. Vehicles.' . . . . .....
(a) Automobiles and non-commercial trucks and vans shall be parked onlyinthe garages or in the driveways, ifany, serving the Units unless othel"wise approved by the ARB. No automobile or non- conunercial truck or van may be left upon any portion ofthe Properties, except ina garage, if.it is AT:92196.4 33
oTifit.is in it is incapable ofbeirig operated uPon the public highways...
Such vehicle shalI be considered a nuisance and may be J'emoved from the Properties. No motorized vehicles shall be pennittbd on pathways. or unpaved CommoIiArea excCpt for public safety vehicles authorized by the Board land vehicles used·by the Association or the of a Private AmenitY in maintenance orall or a portion of the Properties or Private Amenity.·· .
. .!. . ... ..
. (b). RecreationBIvehicles shall be parked in the garages, if any, the Units. The· .
term ''i'ecreational vehicles," as used herein, shalI include,without limitation, motor homes, mobile homes, boats, jet skis or other ·watercraft,trailers, other towed vehicles, motorcycles, minibikes, scooters, ·. go-carts, golf carts, campers, buses, commercial trucks and commercial vans. Any recreational vehicle .
parked or stored in of this provision shall be considered a nuisance and may be removed from· .the Properties. .
(c) Recreational vehicles may be operated on the .streets within the Properties only bya licensed driver in accorda11ce with GeoJgia law. . ..
(d). All vehicles shall be subject to such and regulations the Board of Directors may adopt, including, without limitation, the right to limit the number of vehicles pennitted on each Unit. .. . . .
.. .
. 10.5.·· Leasing.· Units may be leased for residential purposes only. All leases shall require, without limitation, that the tenant acknowledge receipt of a copy of the Declaration, By-Laws, use· restrictions, and tules and regulations of the Association. The .lease l!ball also obligate the tenant to comply with the foregoing. The Board may require notice· of any lease together with such additional information deemed necessary by the Board. .
· .. 10.6. Occupants Bound;. All. provisions of the Declaration, By-Laws; and of any rules and regwatioris,uSe restrictions or Design. Guidelines governing the conduct of Owners and establishing.
· sanctions against Owners .shalI also apply to all occupants .even though occupants are not ·specifically · mentioned. Fines may be levied against Owners or occupants..Ifa fine is ftrst levied against an occupant· .
and is not paid timely, the fme then be levied against the Owner.
10.7. Animals and Pets.· No animals,livestock, or poultry of any kind may be · kept, or pennitted on any Unit, with thecxception of dogs, cats, or other usual and common household pets in reasonable number, as deterinined by the Board. No animalS shall be;: kept, bred or maintained for commercial purposes. All pets shall be on a leash or otherwise reasonably controlled by the owner whenever outSide a Unit and shall be kept in such a manner as to not become a nuisance by barking or other acts. The oWners of the pet shall be responsible for all of the pet's actions. Pets shall not be permitted on any golf course, in any ·lake, or within any Private Amenity except in· compliance with conditions established by the owner of such Private Amenity. If,in the sole opinion of the Board, any animal· becomes dangeroUs or an an:noyance or nuisance in the Properties or to·nearby property. or destructive of wildlife, they shalIbe removed from the Properties.. By way of explanation. and. not limitation, this Section may be enforced by exercising self-help rights provided in Section 4.3.·.
10.8. It shall be the responsibility of each Owner and occupant to prevent the development of any unclean, unhealthy, unsightly, or unkempt condition his or her property: No property within the Properties 'shalI be used,in whole or in part, for the storage of any property or thing . that wilI cause such Unit to appear to be in an unclean or Wltidy condition or that will be obnoxious to the eye; lior shalI any substance,. thing, or material be kept 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 sWTOWlding property. . . .
AT:927!l6,4 34 .
. '. . Each shall maintain its Unit ill a neat and orderly condition throughout initial construction of a residential dwelling and not allow trash and debris from its activities to be carried by the wind or otherwise scattered within Properties. Storage ofconstruction materials on the Unit shall be subject to .such conditions, rules, and regulations may be set forth in the Design Guidelines. Each Owner shall .' .keep roadways, easements, swales, and other portions ofthe Properties clear ofsilt, construction materials and trash from its activities at all times. Trash and debris during initial construction of a residential dwelling shall be contained in standard size dumpsters or other appropriate trash receptacles and removed regularly'from Units and shall not be buried or covered on the Unit. Owners shall remove trash.and debris from the Unitupon reasonable notice by Declarant in preparation for. special events..
No noxious or offensive activityshall be' on within· the Properties, nor shall anything be .
done tending' to cause embarrassment, discomfort, annoyance, or nuisance to any Person using any property within the Properties. There shall notbe maintained any plants or animals or device or thing of any sort whose activities or existence in any way is noxious, dangerous, unsightly, unpleasant, or of a nature as may diminish or destroy the enjoyment ofthe PrOperties. Without limiting the generality ofthe foregoing,no speaker, hom, whistle, siren, bell, amplifier or other sound device, except. such devices as may be used exclusively for security purposes or as approved by.the ARB, shall be located, installed or .
.maintained upon the exterior ofany Unit unless required by law. . . . .
The reasonable and normal development, constructionand sales activities conducted or pennitted by the Declarantshall not be considered a nuisance or:a disturbance ofthe quiet enjoymeI)t ofany Owner .. or occupant.' . . . '. . . '. ' , '., . 10.9; ..Streams. No streamS which run across any Unit dammed, or the water therefrom impoUnded, diverted, or used for any purpose without the prior written consent of the Board, except that the Declarant shall have such rights as provided in Article II. . .
. 10.10. Drainage and Grading. Catch basinsand'dra1n8ge 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 may .obstruct or rechannel the dIainage flows after location and installation of drainage swales, storm sewers, or storm drains. ' . No Person alter the grading of any Uriit prior approval pursuant to Article 9 of this· Declaration. No Person may fill in or pipe any roadside or lot-line swale, except as necessary to provide a minimum driveway crossing, nor may any Person pipe, fill in, or alter any lot line swale used to meet Jackson COlmty regulations, if any. The Declarant hereby reserves for itself and the Association a .
perpetual easement across the Properties for the purpose of altering drainage and Water flow. However, the exercise ofsuch an easement shall not materially diminish the value of or unreasoriably with .
. the use ofany Unit without the oWner's consent. . . . .
10.11. Sight Distance at Intersections. No fence, wall, hedge, or shrub planting which obstructs .
sight lines at elevations between 2 and 6 feet above the roadways shall be placed or permitted to remain on any comer Unit within the triangular area formed by the street property lines and a line connecting them at points 25 feet from the intersection ofthe street lines,. or in the case of a rounded property comer, from the intersection of the street property lines extended. The same sight line limitations shall apply on any Unit within 10 feet from the intersection of a street property line with the edge of a driveway or alley pavement. No tree shall be permitted to remain within such distances of such intersection unless the foliage line is mamtained at sufficient height to prevent obstruction ofsuch sight lines..
10.12. Storage of Dumping, All garbage cans shall be located or screenedso as to be concealed from view of neighboring streets and property. All rubbish, trash, and AT:92796.4 35
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. (\.., , garbage regularly. removed and shall not be allowed to accwnulate. There shall be no dUmping of grass clippings, leaves other debris; rubbish, trash or garbage; petroleuni products, fertilizers, or other' potentially hazardous or toxic substances in' any drainage ditch" stream. ,pond, or lake within the "
, Properties, except that f,ertilizers may be applied to landscaping on Units provided care is taken to , minimize runoff. Due to the sensitivity of the surrounding land, Owners shall use their best efforts to .' avoid excessive use offertilizers. ' .
. . i . \ . . . . . . .
No lumber, metals, bulk materials, refuse, trash or other similar materials shall be kept, stored, or ' allowed to, accumulate outside the buildings on any except during the initial construction period of .
the' improvemeIitsto the Vnit. In addition; during construction the building materials on any Unit shall be .
, , placed and kept in an orderly fashion: Any on whichconstructioids in progress shall be policed ,,' , poor to each weekend and during the weekend all materials' shall be neatly stacked or placed and any , trash or waste materials shall be removed. "
10.13. Subdivision of Unit. No Unit shall be subdivided or its boundary lines changed after a subdivision plat including such Unit has been approved and filed in I the Public Records without the Declarant's written consent. Declarant, however, hereby expressly reserves the right to replat any Unit or .
Units which it or any Builder owns, with the written prior consent. of the owner. of the Unit or Units ' affected. Any such division, boundary line change, or replatting shall not be in violation of the applicable.
subdivision and zoning regulations, ifany. .
10.14. Guns.' The discharge of fireanns on the Pioperties is prohibited; Thetenn "firea.rmS"
includes without limitation "B-B" guns, pellet guns, and fU"earms of all types., The Board may impose, ,fines and exercise other enforcement remedies asset forth in this Declaration to eIif'orce this restriction, .. but shall not be obligated to exercise.scM-help to prevent any such discharge. "
'. 10.15. Combustible Liquid. There shall be no storage of gasoline, propane, heating or other ,fuels, except for a.reasonable amoWlt offuel that may be stored in containers appropriate for such purpose"
on each Unit for emergency purposes and operation of lawn mowers and similar tools or equipmentan4 ' 'except as may be approved in writing by the ARB..The Association shall ,be permitted to store ,fuel for "operation ofmaintenance vehicles,generators and similar equipment. ' '. .' . . '.. '.
10.16. Completion of Occupancy of Unfinished Units..No dwelling erected upon ariy Unit shall be occupied in any manner before commencement of construction or while in the course of ,construction, nor at any time prior to the dwelling being fully completed. .After commencement of construction, each Owner shall diligently continue construction to complete such construction, in a timely ,manner. With respect to construction ofa residential dwelling,' such. construction shall be completed withiri one year frbm commencement. .. .
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, ' For the purposes oftlus commencement of construction shall mean that (i) all plans for such construction have been approved by the ARB; (ii) a building permit has been issued for the Unit by the appropriate jurisdiction; and (iii) construction ofa residential dwelling on the Unit has physically ,commenced beyond site preparation. Completion ora dwelling shall mean that a certificate ofoccupancy has been issued by the appropriate jurisdiction for the Unit.' ' . . ..' . . . . .
Lakes,P6nds and Streams. Swimming, boating and other active uses ponds or' streams within or adjacent to the Properties shall be prohibited. The Association shall not be responsible for any loss. damage, or injury to any person or property arising out ofthe authorized or unauthorized use 'oflakes, ponds, or streams within the Properties. .
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·10.18. Irrigation Systems and Wells.. SPrinkler or irrigation systems shall be installed only in accordance with the Design Guidelines. Declarant shall have the right to install sprinkler or irrigation systems or nonpotable wells within or abutting the Properties which draw upon water from lakes; streams, rivers, ponds, wetlands, canals, or other ground or surface waters within the Properties and the Declarant and the owner of any golf course shall have the right to draw water from such sources within the . ..
10.19. Golf Cow-se· Areas. Owners ofUnits adjaCent to any golf course, as well as their families, tenants, guests, invitees, and pets,· shall be obligated to refrain from any actions which would .
distract from the playing qualities ofany golf course adjacent to the Properties. Such proluoited activities· shall include, but shall not be limited to, burning materials where the smoke will cross the golf course property, maintenance of dogs or other pets WIder conditions which blterfere with golf course play due to · their loud barking or other actions, playing· of loud televisions, stereos or musical instruments,· .running, bicycling, skateboarding, walking or trespassing in any way on the golf course property, picking up balls or similar interference with play. In addition, no Person shall, by virtue of this Declaration, have any right to (a)prune or otherwise altc;:r any landscaping located on the golf course property or (b) use any ·.portion of any golf cart path system, including any portion thereof which may be situated upon Common Area. This covenant is for the benefit ofany golfcourse adjacent to the Properties and the owner thereof.
· and persons playing golfon said golfcourses and shall be enforceable by the. owner ofstich golfcourse. .
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. ARTICLE 11
EASEMENTS·
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Declarant reserves, creates, establishes, promulgates,. and declares the non-exclusive, perpetual easements set forth herein for the enjoyment of the Declarant, the Association, the Members, the Owners, and the owners ofany Private Amenities, and their successors-in·title. .
11.1. Easements of Encroachment. ... . There shall be. reciprocal appurtenant easements of encroachment, and for maintenance and use of any. permitted encroachment, between adjacent Units, between each Unit and any adjacent Conimon Area, and between each Unit and any adjacent Private Amenity due to the Unintentional placement or settling or shifting of the improvements constructed, reconstructed, or altered thereon (in accordailce with the terms of these restrictions) to a distance of not . more than three· feet,. as measured from any point on the common boundary along a line perpendicular to . .
such boundary. However, in no event shall an easement for encroachment exist if such encroachment . occurred due to willful arid knowing conduct on the part of, or with the knowledge and consent of, the·· Person claiming the benefit ofsuch easement. ..
AT:92796.4 37
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(': 101 .11.2. Easements for UtiIlties. Etc.
. . (a) There . hereby.' reserVed to the . Declarant during the Development Period, the • Association, and the designees of each (which may include, without limitation, any governmental or .
quasi-govenunental'entity· and any utility company) perpetual non-exclusive easementsupoIi; across, over, and under all. of the Properties to the extent reasonably necessary; for the purpose of installing, constructing, .monitonng, replacing, .repairing, maintaining, operating and removing cable television .
. systems,. master television antenna systems, and other deVices for sending.or receiving data and/or other.
electronic signals; security and similar systems; roads, walkways, pathways' and trails; lakes, ponds, wetlands, irrigation, and drainage systems; street lights and signage; and all' utilities, including, but not limited to, water, sewer, telephone, gas, and electricity,'and utility meters; and an easement for access of .
vehicular and pedestrian traffic over, across, and through the Properties, as necessary, to exercise the easements descn"bedabove. . / .
.' '. I '.' ...•.... . . '. '.' .
Declarant specifically grants to the local water supplier; sewer serviceprovider, electric company, telephone company, cable company, and natural gas supplier the easements set forth herein across the .
Properties for ingress, egress, installation" replacing, .repairing,and· maintaining utility lines, meters and boxes, as applicable. '.
. (b) . 'There .is: hereby reserved to the Declarant· during the Period, the' .exclusive right and power to grant such specific easements as may be necessarY, in the sole discretion of .• Declarant, in connection with the orderly development ofany property descnbed on Exhibits "A" or "B." .
(c) Any damage to a Unit resUlting exercise of· the easements deScn"bedin subsections (a) and (b) of this Section shall promptly be repaired by, and at the expense of, the Person' exercising the easement. i The exercise of these easements shall notextend.to permitting entry into the structures on any Unit, nor shall it unreasonably interfere with the use of any Unit, and except in an . emergency, entry onto any Unit shall be made only after reasonable notice to the Owner or occUpant. .
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(d) Declarant itself the right, in the ofits sole disCretion, upon the ..
request of any Person or intending to hold. an interest in the Properties, or at any other time, (i)
to release all or any portion of the Properties from the burden, effect,' and encumbrance· of any of the easements granted or reserved under this Section, or (ii) to derme the limits of any such easements. .
11.3. . Slope Control. Drainage.and Waterway Maintenance.. The Declarant, 'for itSelf and the Assoeiation,and their respective representatives, successors and assigns, contractors' and agents, hereby establishes and reserves a permanent and perpetual non-exclusive easement appurtenant over, across, under, through and upon each Unit for the purposes of: '. .' . . (a) . controllulg soil erosion, including grading and planting Unit which are or may be subject to soil erosion;' .
of any .
(b) drainage of natural orman-made water flow and water areas from any portion of the Properties or any Private Amenity;
(c) changing, modifying or altering the natural flow of water, water courses or waterways on or adjacent to any Unit or Conunon Area;
(d)' . dredging,! enlarging, reducing or maintaining any water areas or within the Properties; and .:. . . . .
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(e) .... installing such pipes, lines, conduits or other equipment as 'may be necessary for slope control, drainage and waterway maintenance ofany portion ofthe Properties or any Private Amenity. u 11.4. . Easements to Serve Additional Property. The Declarant hereby reserVes for itself and its ...
duly authorized agents, representatives, and employees,successors, assigns,licensees, and mortgagees, an easement over the Conunon Area for the purposes of enjoyment, use, access, and development of the Additional Property, whether or not such property is made subject to this Declaration. This easement' includes, but is not limited to, a right of ingress and egress over the Common Area for construction of .
roads, for the posting ofsigns, and for connecting and installing utilities serving the Additional Property.
Declarant agrees that it and its successors or assigns shall be responsible for any damage caused to the Common Area as a result ofvehicular traffic connected with development ofthe Additional Property . 11.5. Easement for EntIy.
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(a) The Association shall have the right, but not the obligation, and a perpetual easement is .
· hereby granted to the Association, to enter all portions of the Properties,' mcluding each Unit, for ..• emergency,security, and safety reasons. Such right maybe exercised by the authorized agentS, employees and managers ofthe Association, any member ofits Board or committees, and its officers, and by all police officers, fire' fighters, ambulance personnel, and .similar emergency pers<>nnel in' the perfonnance of their duties. Except in emergencies, entry onto a· Unit shall be only durmg reasonable hours and afternotice to the Owner. This easement mcludesthe right to enter any Unit to cure any condition which may increase the possibility of fITe, slope erosion, immediate risk-of personal injury, or " other hazard if an Owner fails or refuses to cure the conditiQn within a reasonable time after request by · the Board, but shall not authorize entry into anydweIling without pennission of the Owner, except by emergency personnel acting in their official capacities. Any entry by, the Association or its authorized .
agents, employees or managers ofthe Association; any member ofits Board or committees,'or its officers onto a Unit for the purposes specified herem shall not constitute a trespass.
(b) Declarant hereby reserves for itself and giants to the Association, .to the relatives or descendants of any deceased person in any cemetery or burial ground that is located within the boundary .
of the Properties, and to any persons seeking access to anycemetc;ry or burial ground for academic or historical purposes, a nonexclusive, perpetual easement of ingress and egress over-Such portions of the Common Area as are necessary for such access.
11.6. Easements for Maintenance and .Authorized agents of the Association shaU ..
' have the right, and a perpetual easement is hereby granted to the Association, to enter all portions ofthe .' Properties, including each Unit to (a) perform its maintenance responsibilities under Article 5, and (b)
make inspections ensure compliance with· the Governing Documents.. Except· in emergencies, entry onto a Unit shaIl be only during reasonable hours.. This easement shaIl be exercised With a minimum of interference to the quiet enjoyment to Owners' property, and any damage shaIl be repaired by the Association at its expense.. Entry under this Section shall not constitute a trespass, and prior notice shall not be required except as provicied in SectionS.2. . . . .' , The Association·. also may enter a Unit to abate or remove, using such as may be reasonably necessary, any structure, thing or condition which violates the Governing Documents. All costs incurred, including reasonable attorneys fees, may be assessed against the violator as a Specific .
Assessment. . , n.7. Easements for take and Pond Maintenance and Flood Water. The Declarant for ·itSelf and its successors, assigns, and designees the nonexclusive right and easement, but not the obligation, to enter upon the lakes, ponds, streams, and wetlands located within the Area of Common' AT:92796.4 39
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lOJ . •Responsibility to (a) install, keep, maintain, and replacepumps and irrigation systems in order to provide.
water for the irrigation orany oUhe Area of Common Responsibility or any Private Amenity; (b).
construct, maintain, and rePair any bulkhead, wall, dam, or other structure retaining water; and (c) remove trash and other debris therefrom and fulfill their maintenance responsibilities' as provided in this' Declaration. Declarant arid its designees shall have an access easement over and across any of the Properties abutting or containing any portion of any pond, stream, or wetland to the extent reasonably necessary to exercise their rights under this'Section. '.
Declarant further reserves for' itself and its· successors, .assigm and designees, a perpetual, nonexclusive, right and casement of access and encroachment over the Common Area and Units (but not the dwellings' thereon) adjacent to or within 20 feet of ponds, streams and wetlands· in· Order to (a)
temporarily flood and back water upon and maintain water over such portions of the Properties; (b) fill, .drain,dredge, deepen, clean, fertilize, dye,· and generally maintain the ponds, streams, and wetlands within the Area ofCommonResponsibility; (c) maintain and landscape'the slopes and banks pertaining to .such ponds, streams, and wetlandsj and (d) enter upon and across such portions of the Properties for the pUIpose ofexercising its rights under this Section. All persons entitled to exercise these easements shall .use reasonable care in, and repair any damage resulting from the intentional exercise of such easements.
Nothing herein shall be construed to make Declarant or any other Person liable for damage resulting from flooding due to heavy rainfall or other natural disasters. . .
Declarant reserves unto itself the right, in the exercise of its sole discretion, upon the request of any Person holding, or intending to hold, an interest in the Properties, or at any other time, (i) to release all or any portion of the Properties from the burden, .effect, and encwnbranceof any of the easements granted orreserved under this Section, or (ii) to define the limits of such easements.. ' .
. . .... . . ... : . . .' 11.8. Lateral Support.. Every portion of the Area, Unit, and any' which contributes to the lateral support of another portion of the Common Area or of another Unit shall .
be burdened with an easement for lateral support, and each shall also have the right to lateral support which shall be appurtenant to and pass with title to such property. . , .' : "," ..
11.9;· Easements for Private Amenities.
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(a) Every Unit and the Common Area and the common :property of any Neighborhood .Association adjacent. to .any Private Amenity are burdened' with an ,casement pennitting golf balls unintentionally to come upon such Common Area, Units or conunon property of a Neighborhood and for golfers at reasonable times and in a reasonable manner to come upon the Common Area, cOmInon .
property of a Neighborhood, or the exterior portions of a Unit to retrieve errant golf balls; provided . however, ifany U'nit is fenced or walled, the golfer shall seek the Owner's permission before entry.. The'· existence of this easement shall not relieve golfers of liability for damage caused by errant golf balls.
Under no eircumstances shall any of the following Persons be held liable' for any' damage or' injury ..
resulting from any activity relating to the Private Amenity, fucluding blitnot limited to, any errant golf balls or the exercise of this easement: the Declarant, or any successor Declarant; the Association or its .
. Members (in their capacity as such); the owner(s) of the Private Amenities or their successors, successOrs- in-title. or assigns; any Builder or contractor (in their capacities as such); the golf course designer or builder; Or any officer or director, member, manager or partner ofany ofthe foregoing.
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(b) The owner(s) of the Private Amenities, their respective successors and assigns, shall have . a perpetual, exclusive easement of access over the Properties for the purpose ofretrieving golf balls from .
. bodies of water within the Common Area and any Unit lying reasonably within range of golf balls hit .
from any golf course within such Private AT:92796.4 40
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. (c) ..... The ofany Private Amenity within or any portion of tile Properties,its .
agents, successorS and assigns, shall at all times have a right and non-exclusive easement of access and .
use over those portions of the Common Area reasonably necessary to the operation, maintenance, repair.·' and replacement ofits Private Amenity.' .
(d) Declarant hereby reserves for itself, its successors and assigns and the Owner(s) of any Private Amenities over, across and upon each and every Unit, a twenty (20) foot easement as measured, from the boundary line ofthe Unitthat separates such Unit from any golfcourse to a line running parallel thereto being located twenty (20) feet into the interior ofsuch Unit. Such easement may be used for the .
purposes of operation and maintenance of any golf course, including, without limitation, in$talliltion and maintenance ofcart paths. By way ofexample and not 1imitation,such easement shall be for the p\JfPose of authorizing entry onto such portions ofthe Unit to maintain or landscape the area encumbered by such easement. Such maintenance and landscaping shall include planting of grass, .. irrigation, fertilizer . application, mowing and edging, iindremovalof any underbrush, trash, debris and of less than two '. (2) inches in diameter. .'. . .
(e) There is hereby established for. the benefit of the Prlvate Amenities and their members .
(regai"dless of whether such members are Owners hereunder), guests, invitees, employees, agents, contractors, and designees, a right and nonexclusive easement ofaccess and .use over all roadways located within the Properties reasonably necessary to travel between the entrance to the Properties and the Private Amenities and over those portions of the Properties (whether Common Area or otherwise) reasonably necessary to the operation; maintenance, repair, and replacement of the Private Amenities: .Without limiting the generality of the foregoing, members of the Private Amenities and guests and invitees of the Private Amenities shall have the right to park their vehicles on the roadways located within the Properties at reasonable times before, during, and after special events, tournaments and other similar functions held .
by or at the Priwte Amenities.
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(f) Any portion of the' PropertieS immediately to the' Private Amenities are hereby burdened with a non-exclusive easement in favor of the adjacent Private Amenities for' over spray of.
water from the irrigation system' serving the Private Amenities. Under no circumstances shall the .Association or the owner(s) of the Private Amenities be held liable for any damage or injury resulting from such over spray or the exercise of this easement.
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. (g) '. The Declarant hereby reserves for itself,its successors and and may assigri to the owner(s) of the Private Amenities, easement and all rights to draw'water from the lakes and ponds within or adjacent to the Properties for purposes of irrigation of the Private Amenities and for access to' and the rightto enter upon the lakes and ponds within or adjacent to the Properties, if any, fox: installation . and maintenance ofany irrigation systems. .
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.' (h) .Any Private Amenity may include an extensive system of paths for use by pedestrians, .
golf cllrts and maintenance vehicles. To the extent such paths are not located on the Private Amenity, Declarant hereby reserves a nonexclusive easement appurtenant to the Private Amenity on, over, under arid across the Properties as reasomibly necessary for the. instaIIation, maintenance,. repair, replacement, ..
reconstruction, use and enjoyment of such paths. The owiler(s) of the Private Amenities shall be solely responsible for maintaining such paths at its sole cost and expense, including those portions which are located on a Unit or Common Area. The aforesaid easements are reserved for the benefit of the owner(s)
of the Private Amenities, and their respective members, guests, invitees, employees, contractors, agents, . and designees and shall be appurtenant to the Private Amenity.
11.10. Easement for Special Events. Declarant hereby reserves for itself, its successors, assigns and designees a perpetual, non-exclusive easement over the Common Area for the purpose of conducting ·AT:927%.4 41
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r" , "l· ,educational" cultura1, enterlainment, or sportiIig events, and other cif general community interest, ' ,at such locations and times as Declarant, in its sole discretion, deems appropriate. Each Owner, by , accepting a deed or other Jnstrument' conveying any interest in a Unit, ackribwledges and agrees that the exercise of this easement may result in a tempor8ry increase in traffic, norse, gathering of crowds, and "
related inconveniences, and each Owner agrees on behalfofitselfand the ofits Unit to take no action, legal or otherwise, which would interfere with the exercise of easement or to, recover ,, damages for or as the result ofany such activities. " i ' ' ,r' 11.11. 'Rights to; Stormwater Runoff: Effluent and Reclamation.' hereby· reserves, for itself and its designees, including but not limited to the owner of any Private Amenity, all ' rights to ground water,' sUrface water, storm water runoff, and eft1uent produced 'within the 'Properties, and each Owner agrees, by acceptance of a deed to a, Unit, that Declarant shall retain all such rights. Such right shall include an easement over the Properties for access, and for installation and maintenance offacilities and equipment to capture and transport such water, nmoffand eft1uent. ' ", ' ", ' 11.12. Liability for Use of Easements. No Owner shall' have a claim or cause of action against ' the' Declarant,' its succ,essorsor assigns, including without limitation theowner(s) of any Private Amenities, arising out of the exercise or non-exercise of any easement reserved hereunder or shown on any subdivision plat for the Properties, except in cases ofwillful or wanton iriisconduct. '
ARTICLE 12
MORTGAGEE PROVISIONS
' , , The following provisions are for the benefit of holders, msurers and guarantors of first Mortgages , on Units in the Properties.'The provisions ofthis Article apply to both this Declaration and to the By- Laws, notwithstanding any other provisions contained therein.
,,', ,'12.1., Notices otAction. An institutional holder, insurer, or fiist Mortgage who' " provides a written reqUest the Association (such request to state the name and address of such holder, , ,insurer, or guarantor and the street address ofthe Unit to which its Mortgage relates, thereby becoming an ' "EligIble Holder"), will beeniitIedto timely written notice of: ' , ,
(a) loss or any casualty loss which affects a material portion of the Properties or which affects any Unit on which there is a first Mortgage insured, or guaranteed by such Eligible Holder; ,
(b) Any the payment of assessments or charges owed by a Unit subject to the Mortgage of such Eligible Holder, where such delinquency has continued for a period of 60 Days, or any other violation of thepeclaration or By-Laws relating ,to such Unit or the Owner or Occupant which is not cmed within 60 Days; , '
(c) 'Any lapse, cancellation, or material Illodification of any insurance policy the Association; or ' by , (d) Any proposed action which would require the consent a specified of EligIole Holders pursuant to Federal HomeLoan Mortgage Corporation requirements.
12.2. 'No Priority. No provision 'ofthis or the gives or shall be construed "
as giving any Owner or other party priority over any rights of the f1I'St Mortgagee of any Unit in the case ,of distribution to such Owner of insurance proceedS or condemnation awards for losses to or a taking of the Common Area. ' AT:92796.4 42 ,
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. 12.3. . Notice to AssoCiation. Upon request; each Owner shall be obligated to furnish to the Association the name and address ofthe holder ofany Mortgage encmnbering such Owner's Unit .
. 12.4. Failure of Mortgagee 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 awritten response from the Mortgagee Within 30 Days of the date of the .Association's request, provided such request is delivered to the Mortgagee by certified or registered mail, . return receipt requested. . . .' .
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·12.5. Construction ofArticle 12. Nothing contained in this Article shall be construed to reduce' the percentage vote that must otherwise be obtained under the Declaration, By-Laws, or Georgia law·for .
anyofthe acts set out in this Article." .
ARTICLE!3 .
DECLARANT'S RIGHTS
13.1. Transfer or Assignment. Any or all ofthe special rights and obligations offue Declarant set forth in the Governing Documents may be transferred or assigned in whole or in part to the Association or to other Persons, provided that the transfer shall not reduce an obligation nor enlarge a right beyond that which the Declarant has Wlder this Declaration or the By-Laws. Upon any such transfer, the Declarant shall be· automatically released from any and all liability arising with respect to' .
such transferred rightS and obligations. No such transfer or assigiunent shall be effective unless it is in a written instrument signed by the Declarant and duly recorded in the Public Records..
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13.2.' Development and Sales. The Declarant and Builders authorized by Declarant may . maintain and carry on the Properties such activities .as, in the sole opinion of the Declarant, may be reasonably required, convenient, 'or' incidental to the development. of the Properties and/or the . construction or sale of Units, such as sales activities, tournaments, charitable events, and promotional events, and restrict Members trom using the Common Area during such activities. Such activities shall be conducted iri a Ii1anner to minimize (to the extent reasonably possible) any substantial interference with the Members' use and enjoyment of Common Area. In the event that any such activity necessitates exclusion of Owners from Common Areas, such activities shall not exceed seven (7)
· consecutive Days. The Declarant and authorized Builders shall have easements over the Properties for access, ingress and conducting such activities.' .
·In addition, the Declarant and Builders authorized' by Declarant rimy establish within' the .
Properties, including any clubhouse, such facilities' as, in the sole opinion of the Declarant, may be reasonably reqwred, convenient, or incidental to the development of the Properties and/or the construction or sale of Units, including, but not limited to, business offices, signs. model ·homes, tents, sales offices, sales centers and related parking facilities. During the Development Period, Owners may be .
excluded from use of all or a portion of such facilities in the Declarant's sole discretion. The Declarant' and authorized Builders shall have easements over the Properties for access, ingress, and egress and use · ofsuch facilities.
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Declarant may permit the use ofany facilities situated' on the Area by Persons other .
. than Owners without the ofany use fees. . . . .
13.3. . to' Common Areas. The Declarant Md its employees,' agents and' '. designees shall also have aright and easement over and upon all of the Common Area for the purpose of . making, constructing and installing such improvements to the Common Area as it deems appropriate in ·its sole discretion. .' AT:92796.4 43
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. 13.4. Additional Covenants. No Person shall record any of covenants, conditionS and restrictions, declaration of condominium, easements, or similar instrument affecting any portion of the Properties without and written consent. Any attempted recordation without such . consent shall result in such instrument being void and ofno force and effect Unless subsequently approved by written consent by the Declarant imd recorded in the Public Records. No such instrument recorded by any Person,Iother than the .Declarant pursuant to Section 7.4,mayconflict with the .
..Declaration, By-Laws or ¥icles... . . .''. . " .
13.5. Right of Class ''B'' Member to Disapprove Actions; So long as the Class ''B'' ..
:memberShip exists, the Class ''B'' Member shaU have the right to disapprove any action,policy or . program of the Association, the Board and any committee which, in the ;sole judgment of the Class "B"
Member, would tend to impair rights· of the Declarant or Builders under the Governing Documents, or interfere with development of,· construction on, or marketing of any portion of the Properties, or diminish ' ..
the level of services beingprovided by the.Association. This right to disapprove is in addition to, and not· in lieu of, any right to· approve or disapprove specific actions of the Association, the Board or any committee as may be granted to the Class"B" Member orthe Declarant in the Governing Documents. .
(a). The Class''B'' Member shall be given written notice ofa11meetings and proposed actions approved at meetings (or by written consent in lieu of a meeting) of the Association, the Board or any committee. Such notice shall be given by certified mail, return receipt requested, or by personal delivery at the address the Class "B" Member has registered with the' secretary of the Association, which notice complies with the By-Laws and which .notice shall, except in the case. of the regular meetings held pursuantto the By-Laws, set forth in reasonable particularity the agenda to be followed at such meeting. .
The Class ''B'' Member may waive. its right to receive notice in the same manner as provided in the Laws. . .' .
(b) . The Class ''B'' Member shall be given the opportumtyat any such meeting tojoin in or to .
'. have its representatives or agents join .in discussion from the floor of any prospective action; policy, or prognlm which would be subject to the right of disapproval set forth herein. The Class''B'' Member, its·"
represeIitatives or agents may make its concerns, thoughts; and suggestions known to the Board and/or the '. members ofthe subjectcommittee. . .' .
. (c) No action, policy or to the right set forth shall become effective or be implemented until and unless the requirements ofsllbsectionS (a) arid (b) above have been met and the time period set forth in subsection (d) below has expired.. . .
(d) The Class ''Bn Member, acting through any officer or director, ·agent. or authorized representative, may exercise its right to disapprove at any time withiil ten (10) Days following the .
meeting at which such action was proposed or, in the. case of any action taken by written consent in lieu of a meeting, at any time within ten (10) Days following receipt of written notice ofthe proposed action.
. 'No action, policy or program shall be effective or implemented if the Class "B" Member exercises its right to disapprove. This right to disapprove may be used to block proposed actions but shall not include .
a right to require any action Or counteraction on behalfofany committee, or the Board or the Association.
The Class ''B'' Member shall not use its right to disapprove to reduce the :level of services which the Association is obligated to provide or to prevent capital repairs or any expenditure required to comply with applicable laws and regulations.' . .
."
AT:92796.4 .44
ARTICLE14 .
PRIVATE AMENITIES
14.1. General. Private Amenities shall not be a portion of the Common Axea, and neither .. membership in the Association nor ownership or occupancy of a Unit shall confer any ownership interest in or right to use .any Private Amenity. Rights to use the Private Amenities will be granted only to such persons, and on such terms and conditions, as may be detennined from time to time by the respective owners of the Private Anlenities. The owners of the Private Amenities shall have the right, from time to time in their sole and absolute discretion and without notice, to amend or waive the terms and conditions of use of their respective Private Amenities, including, without limitation, eligibility for and duration of use rights, categories ofuse, extent ofuse privileges; and number ofusers, and to require the payment ofa ..
purchase price, membership contribution, initiation fee, membership deposit, dues, use charges, and other .
charges for use privileges and to change, eliminate, or lease operation ofany or all facilities; and to reserve use rights and to terminate Use rights altogether, subject to the terms ofany written agreements.
. 14.2. Conveyance {)f Private Amenities. All Persons, including all Qwners,are. hereby advised that no representations or warranties have been or are made by the Declarant, the Association, any .
Builder, or by any Person acting on behalf of any of the foregoing, with regard to· the continuing ownership or operation of any Private Amenity, and no purported representation or warranty in such regard, either written or oral, shall be effective unless specifically set forth in a written· instrument executed by the record owner bfthe Private Amenity. Further, the ownership or operation of the Private .Amenities may change at any time by virtue of, but without limitation, (a) the sale to or assUmption of operations of any Private Amenity by a Person other than the current owner or operator; or (b) the conveyance of any Private Amenity to one or more affiliates, shareholders, employees, or fudependent contractors of the Declarant. No consent of the ASsociation, any Neighborhood Association, or any OWner shall be required to effectuate any change in ownership or operation of any Private Amenity, for Or without consideration and subject to or free ofany mortgage, covenant, lien or other encumbrance.
14.3. View Irnpainnent. Neither the Declarant, the Association, nor the owner of any Private Amenity, guarantees or represents that any view over and across any Private Amenity, the Common Area or any public facilities from Units will be preserved without impairment. The owners of such property, shall have no obligation to prune or thin trees or other landscaping, and shall have the right, in their sole and absolute discretion, to add trees and other landscaping or to install improvements or barriers '(both.
natural and artificial) to the Private Amenities, the Common Axea or the public facilities from time to time. In addition, the owner of any Private Amenity which includes a golf course may, in its sole and absolute discretion, change the location, conijgl!Tation, size and elevation of the trees, bunkers, fairways and greens from time to time. Any such additions or changes may diminish or obstruct any viewfrom the • Units,and any express or implied easements for· view purposes or for the passage of light and air are hereby expressly disclaimed.
14.4. Cost Sharing Agreements. The Association may enter into a Cost Sharing Agreement with any Private, Amenity obligating the Private Amenity or the Association to coiltributefunds for, among other things, shared property or services and/ora higher level ofCommon Area maintenance.
. . ." ,. .".. .
14.5.· .Architectural Control. Neither the anyconunittee there()f, shall approve.··' .or permit any construction, addition, alteration, change, or' installation .on or to, any portion of the Properties which is contiguous to or within one hundred (lOO) feet of, any Private Amenity without giving the owner of such Private Amenity at least fifteen (IS) Days prior written notice of its intent to ,approve or permit the same together with copies of the request and all other documents and information finally submitted in such regard. The owner ofsuch Private Amenity shall then have fifteen (IS) Days to approve or disapprove the proposal in writing delivered to the appropriate committee or Association, AT:92796.4 45
stating in, detail the reasonS for any disapproval. The of the owner of such' PriVate Amenity to, ' respond to the notice within the fifteen (15) Day period shall constitute a waiver of the owner of such Private AmeIJity's right to object to the matter. If in the reasonable ,opinion ofthe owner' of the Private', ' Amenity whether by restriction of view; hazards to person or otherwise, the requesting party shall resubmit to the ARB ,the proposed construction or modification so as to take into account the objection of , the Private Amenity, and the review and approval process set forth in this Section shall apply to the resubmitted plans and spedfications. This Section shall also apply to any work on the ,Common Area contiguous to the Private Amenity. ' , , , 14.6. " Use Restrictions;l)pon request of the owner of any Private Amenity, the Association ,', shall enforce its use restrictions and rules ,against any Owner or occupant violating such regulations within such Private Amenity, including but not limited to the exercise ofthe Association's self-help rights, ' for violation ofsign and pet restrictions. " ' , 14.7. Limitations on Amendments. In recognition of the fact that the provisions of this Article are for the benefit of the Private Amenity, no amendment tothis Article, and no amendment in derogation ,' of any other provisions of this Declaration .benefitting any Private Amenity, may be made without the ,,' , written approyal of the owner(s) of the affected PriVate Amenity.' The foregoing shall not apply, however, to amendments made by the Declarant. " , , 14.8.' Jurisdiction and Cooperation. ' It is Declarant's interitionthat the Association and the Private Amenities shall cooperate to the maximum extent possible in operation of the Properties and the Private Amenities. Each shall reasonably assist the other in upholding the Community-Wide Standard as it pertains to maintenance and the Design Guidelines. The' Association shall have no power to promulgate rules or regulations affecting activities on or use of the Private Amenities without the prior written consent ofthe owners ofthe Private affected thereby.' , ' 'ARTICLE IS GENERAL PROVISIONS, 15.1. Duration..
• (a) , teqirinated as provided in Section lS.l(b), this shall run with the land , and shall be binding on all 'parties and Persons claiming under them for a period of 20 years from the date this Declaration is recorded. This Declaration shall automatically be extended at the expiration of such period for successive periods of 10 years each, unless terminated as provided herein. Notwithstanding the ' above, if any of the covenants, conditions,' restrictions, or other provisions of this Declaration shall be unlawful, void, of voidable for violation of the rule against perpetuities, then such provisions shall continue only imtil 21 yeail; after the death ofthe last'survivor ofthe now living descendants ofElizabeth II, Queen ofEngland.
(b) Unless otherwise provided by Georgia law, mwhich case such shall control, this , ' Declaration may not be terminated within 20 years of the date of recording without the consent of all , Owners. ,', Thereafter, it may be terminated only by an instrument signed by Owners ofatleast 75% ofthe 'total Units withfu the Properties and by the Declarant, ifthe Declarant owns any portion ofthe Properties, which instrument is recorded in the Public Records. Nothing in this Section shall be construed to pennit tennination ,of any easement created in this Declaration without the consent of the ,holder of such easement. ' n , AT:92796.4 46
.... :.
15.2. Amendment.·
(a) . By Declarant.· Until termination of the ClaSs "B" membership, Declarant may unilaterally amend this Declaration for any purpose. Thereafter, the Declarant may unilaterally amend this Declaration at any time and from time to time if such amendment is necessary (i) to bring any 'provision into· compliance with any applicable governmental statute,lUle, or judicial detennination; (ii) to enable any reputable title insurance company to issue title insurance coverage. on the .
"Units; (iii) to enable any institutional or govenurientallender, purchaser, insurer or guarantor ofMort'gage .. ' loans, including, for example, the' Federal National Mortgage' Association' or Federal Home Loan . Mortgage Corporation, to make, purchase, insure or guarantee Mortgage loans on the Units; or (iv) to satisfy the requirements of any local, state or federal governmental agency.'. However, any such .amendment shall not adversely affect the title to any Unit unless the Owner shall consent in writing. In ' .. addition, so long as the Declarmit owns property which is subject to this Declaration or which may be unilaterally subjected to the Declaration by the Declarant, it may unilaterally amend this Declaration for any other purpose, proyided the amendment has no material adverse effect upon any right ofany Owner.
(b) . By Members. Except as othCrwisespecifically' provided above and elsewhere in. this' .
Declaration, this Declaration may be amended only by the affirmative vote or written consent, or any combination thereof, of Members representing 67% of the, total Class "A" votes in the Association, . including 67% ofthe Class "A",votes held by Members other than the Declarant, and the written consent of the Declarant, so long as the Declarant owns any property whichis subject to this Declaration or which may be unilaterally subjected to this Declaration by the Declarant. ' Notwithstanding the above, the percentage of votes to amend a specific clause shall not be less than the prescribed percentage of affrrmative votes required for action to be taken under that clause. .
(c) , Validity and Effective Anyamendment to the Declaration shall become effective . upon recordation in the 'Public Records, unless.a later effective date is specified in the amendment. Any . procedural challenge to an amendment must be made within six months of its recOrdation or such amendment shall be presumed to have been validly adopted. In no event shall a change of conditions or circumstances operate to amend any proviSIons ofthis Declaration. No amendment may remove, revoke, ·.or modify any right or privilege ofthe Declarant or the Class''B'' Member without the written consent of the Declarant, the Class ''B'' Member, or the assignee ofsuch right or privilege. .' ..' '.' Ii an amendment 'to this Declaration ,or the By-Laws; it will be conclusively presumed that such Owner has the authority to, consent, and no contrary provision in any Mortgage or contnict between the Owner and a third party will affect the validity ofsuch amendment.
, .
15.3.' Severability. Invalidation ofany provision ofthis Declaration, in whole or in part, or any ..
application of a provision of this Declaration by judgment or court order shall in no way affect other provisions or applications. .
15.4.. DisputeResolution: Ii is the 'intent ofthe Association and the Declarant to encourage the .
amicable resolution ofdisputes involving the Properties and to avoid the emotional and financial costs of · iitigation if at all possible. 'Accordingly, the Association,' the Declarant and each Owner covenants and .
, agrees that it shall attempt to resolve all claims, grievances or disputes involving the Properties, including, without limitation, claims,grievances or disputes arising out of or relating to the interpretation, , application or enforcement of this Declaration, the By-Laws, the Association rules, or the Articles' 'through alteroativedispute resolution methods, such as mediation and ,arbitration. To £oster the amicable resolution ofdisputes, the Board may adopt alternative dispute resolution procedures.
· AT:92796.4 47
."
i I Participation in attemative dispute resolution shall' be: volimtaryand coiUidential.
, Should either party conchlde that such discussions have become improductive or unwarranted, then the ' parties may proceed with litigation. ' ,' , , "
, , 15.5. Litigation. Except as provided below, no judicial 'or administrative proceeding shall be commenced or prosecuted by the Association unless approved by a vote representing 75% of the total Class "An votes in the Association. This Section shall not apply, however, to (a) actions brought by the Association to enforce the provisions of this Declaration (including, without limitation, the foreclosure of liens); (b) the imposition and collection of assessments as provided in Article 8; (c), , proceedings involving challenges to ad valorem taxation; (d) counter-claims brought by the Association in proceedings instituted against, it or (e) ,actions, brought by the Association against' any contractor, vendor, or supplier of goods and services arising out of a contract for services or supplies. This Section shall not be amended unless !luch amendment is approved by the percentage,ofvotes, and pursuant to the same procedures, necessary to institute proceedings as provided above.
15.6. 'Non-Merger. Notwithstanding the fact' that Declarant is the current. of the '.
Properties, it is the express intention ofDeclarant thatthe easements established in the Declaration for the benefit of the Properties and Owners shall not merge into, the fee simple estate of individual units conveyed by Declarant ori its successor, but that the 'estates of the Declarant and individual lot owners shall remain as separate and distinct estates. Any COnveyance of all or a portion of the Properties shall be "
subject to the terms and provisions of this Declaration, regardless 'of whether the instrument of ' conveyance refers to this Declaration. ' "
15.7; Grants.' The parties hereby declare that this Declaration, and the easements created herein shall be lind constitute covenants nmning with the fee simple estate of the Properties. The, grants " and reservations of easements in this Declaration are independent of any covenants and contractu!".
agreements unde$ken by the parties in this Declaration and a breach by either party of any such covenants or contractual agreements shall not cause or result in a forfeiture or reversion of the easements granted in this Declaration. ' ' " , 15.8. Cumulative Effect: Conflict. The provisions of this Declaration shall be cumulative with any additional covenants; restrictions" and declarations applicable to any Neighborhood, and the Association may, but shall not be required to, enforce the covenants, conditions, and provisions applicable to any Neighborhood; provided however, in the event ofa conflict between or among this Declaration and • such covenants or restrictions, and/or the provisions of any articles of incorporation, by-laws, rules,and regulations, policies, or practices adopted or carried out pursuant thereto; this Declaration, the By-Laws, Articles, and use restrictions arid roles of the Association shall prevail over those of any Neighborhood.
,The foregoing prionties shall apply, but not be limlted to, the lien for assessments created in favor of the ,ASsociation. Nothing in Ulls Section shall preclude any Supplemental Declaration or other recorded declaration, covenants and restrictions applicable to any portion of the Properties from containing additional restrictions or provisions which are more restrictive than the provisions ofthis Declaration, and the Association shall have the standing and authority to enforce the same. ' , ' 15.9.' Use of the Words '"Traditions of Braselton". No Person shall uSe the words '"Traditions ' of Braselton" or any logo of Traditions of Braselton or any derivative in any printed or promotional material without the Declarant's prior written consent. However, Owners may use the terril "Traditioris of '.' Braselton" in printed or promotional matter where such term is used solely' to, specify that particular property is located within and the Association and any other comrmmity association located in Braselton shall be entitled to usc the words '"Traditions ofBraselton" in its name.' AT:92796.4 48
. . ...... '. . . .'. . '. . . . . . '. . . ".' 15.10. Compliance. EveryOwnerand occupant of any Unit shall complywhh the Governing Documents. Failure to comply shall be grounds for an action by the Association or by any aggrieved ,'Owner(s} to recover sums due, for damages or injunctive relief, or for any other remedy available at law or in equity, in addition to those enforcement powers granted to the Association in Section 4.3. ' 15.11. Right ofFirst Refusal. , , ,'(a) . &I:h Owner acknowledges, and the deed of to each Owner may provide, that "
the Declarant shall retain a right of first refusal for any Unit within the Properties on the terms and conditions set forth below. This Section shall not restrict an Owner's right to enter into a binding contract , for the sale of a Unit, provided that, for so long as this right of first refusal exists, the contract provides , "that the Owner may not convey a Unit to any third party without giving the Declarant the right of first refusal on the tenns and conditions set forth below. This right of ftrst refusal shall not apply to any "transfer or conveyance in connection with a Mortgage foreclosure or deed in lieu of foreclosure except where the intent of the parties is to circumvent this right of first refusal. ',The failure by Declarant to, exercise its right of first refusal with respect to a Unit shall not be deemed a waiver of such rightwith ' , respect to any other transfer or conveyance. '
(b) Ifany Owner desires to conveyany Unit to a third party, theOwner proposing ,to transfer ", , ,',", , ' said Unit shall deliver to Declarant within seven Days of its execution a copy of the executed; binding • real estate sales contract between the Owner and the prospective purchaser. The real estate sales contract,,' ,shall provide that Declarant shall have 30 Days after actl.lal receipt of the executed binding real estate contract upon which to exercise its right of first refusal for the Unit on the same terms and conditions as " the real estate sales 'contract between 'the 'Owner and 'prospective purchaser. Declarant shall provide written notice ofthe exercise ofthe right offirst refusal to the transferor. Ifthe Declarant fails to exercise such right as provided herein, the right of first refusal shall be waived and extinguished. Upon request andreceipt ofa release in form and content satisfactory to Declarant, Declarant shall execute a release of such right offirst refusal in recordable form ifthe Declarant does not intend to exercise such right.
(c) IfDecllirant exercises its right offJrstrefusal, the owner ofthe Unit shall convey the Unit by general warranty deed (subject to such exceptions and easements of record as are, standard and customary) to the Declarant within 30 Days after the date ofreceipt ofthe Declarant's notice the right of first refusal has been exercised. ,The remaining terms of the real estate sales contract shall remain in full force and effect. ' ' ,
(d) If Declarant does notexercise its right to repurchase, the Owner ofthe Unit shall give the Board written notice of the name and address of the purchaser or transferee, the date of such transfer of title, and such other information as the Board may reasonably require not later than the date of closing.
'The transferor shall'contiIlue to be jointly and severally responsible with the transferee for all obligations .
of the Owner of the Unit, including assessment obligations, until the date upon which such notice·is . received by the Board, notwithstanding the transfer oftitIe. "
, '. (e) 'The right of first refusal set forth in this SectiCXl shall terminate as to , Unit upon the issUance of a certificate, of occupancy by the-County of Jackson, Georgia building , department for a residential dwelling on such Unit. Upon issuance of a certificate of .occupancy and receipt from any Owner of such Unit by Declarant of a written request and a release in form and content ' satisfactory to Declarant, Declarant shall execute a release of such right of first refuSaI as to suchUnit in recordable form; however, issuance of such a release shall not be necessary to terminate this right of first refusal.' ' , . . ,:..
AT:92796.4 49
This right of first refusal shall automatically terminate as to all Units five (5) years from the date
that this Declaration is recorded in the Public Records, or when, in its sole discretion, the Declarant so
determines and declares in a recorded instrument.
15.12. Exhibits. Exhibits "A" and "B" attached to this Declaration are incorporated by this
reference and amendment of such exhibits shall be governed by the provisions of this Declaration.
Exhibit "C" is attached for informational purposes and may be amended as provided therein.
[SIGNATURES ON FOLLOWING PAGE]
J
AT:92796.4 50
04/24/2003 • 13:46 7705860811 J&M WINDER PAGE 05
IN WITNESS WHEREOF, the undersigned Declarant has executed this Declaration this Y day
→ 2003.
BLUEGREEN COMMUNITLES OF GEORGIA, LLC, Georgia limited liability company
Its: Manager
and delivered thi 1982%
NESS
NOTARY PUBLIC
My Commission Expires:
Commission # DD 06369
Expires Nox 11, 200:
Sonded Thr
Mintic Bonding Co, In
EXHIBIT "CH
BY-LAWS
OF
TRADITIONS OF BRASELTON COMMUNITY ASSOCIATION, INC.
AT:92764.2
- TABLE OF CONTENTS -
Page
ARTICLE 1: NAME, PRINCIPAL OFFICE, AND DEFINITIONS
1.1. Name..
1.2. Principal Office.
1.3. Definitions.
ARTICLE 2: ASSOCIATION: MEMBERSHIP, MEETINGS, QUORUM, VOTING, PROXIES..
2.1: Membership.
2.2. Place of Meetings:
2.3. Annual Meetings.
2.4. Special Meetings.
2.5. Notice of Meetings.
2.6 Waiver of Notice.
2.7 Adjourment of Meetings.
2.8 Voting....
2.9 List for Voting.
2.10. Proxies.
2:11. Quorum
2.12. Conduct of Meetings
2.13. Action Without a Meeting.
ARTICLE 3: BOARD OF DIRECTORS: NUMBER, POWERS, MEETINGS..
3.1 Governing Body: Composition.
3.2 Number of Directors..
3.3. Directors During Class BI Control Period.
3.4. Nomination and Election Procedures...
3.5. •Election and Term of Office..
3.6 Removal of Directors and Vacancies
3.7 Organizational Meetings.
3.8 Regular Meetings.
3.9. Special Meetings.
3.10. Notice..
3.11 Waiver of Notice.
3.12. Participation in Meetings...
3.13 Quorum of Board of Directors.
3.14. Compensation..
3.15. Conduct of Meetings.
3.16. Open Meetings...
3.17. •Action Without a Formal Meeting.
3.18. Powers..
3.19. Duties.
3.20. Management.
3.21. Accounts and Reports as 0s or on
3.22. Borrowing.......
3.23. Right to Contract.
AT:92764.2
3.24. Enforcement.
ARTICLE 4: OFFICERS
4.1. Officers..
4.2. Election and Term of Office
4.3. Removal and Vacancies.
4.4. Powers and Duties.....
4.5. Resignation...
4.6. Agreements, Contracts, Deeds, Leases, Checks, Etc 4.7. Compensation
ARTICLE 5: COMMITTEES.
S.l. General....
5.2. Covenants Committee...
5.3. Neighborhood Committees
ARTICLE 6: MISCELLANEOUS.
6.1. Fiscal Year.
6.2. Parliamentary Rules..
6.3. Contlicts. .......
6.4. Books and Records
6.5. Notices....
6.6. Amendment.
764.2
'I
r"" ,'I ·"·i ".
, i,' , OF, TRADmONSOFBRASELTON " ,COMMUNITY ASSOCIATION, INC.
. I , , i , , , ,ARTICLE hNAME, PRINCIPAL AND DEFINrnONS' . :. '. ,".. . .'. . , '. . .... .
,1.1. ' The name of the corporation is Traditions of Braselton Community Association;
Inc. (the "Association''), aGeorgia nonprofit corporation. , "
, 1.2. 'Principal Office.' ,The 'principal office of the Association shall be loCated in Jackson Georgia. The Association may have such other offices, either within or outside the State of 'Georgia, as the Board ofDirectors may detennme or as the affairs ofthe Association may require. ' 1.3. Definitions: The words used in these By-Laws shall be given their normal, commonly " ,understood defmitions. Capitalized tenus shall have the same meaning as set forth in that 'Declaration of , Covenants, Conditions, and Restrictions for Traditions ofBraselton filed in the Public Records; as it may "
, be amended (the unle,ss the context indicates otherwise. ," ' '
ARTICLE 2: .ASSOCIATION: MEMBERSHIP, MEETINGS,
2.1.' "Membership. "The Associatibnshall have two (2) Class "N' and Class ''B,''as more fully set forth in the Declaration, tlie terms of which pertaining to membership are "
, ,incorporated by this reference. ., , 2.2.' "Place ofMeetings.. Meetings ofthe AsSociation shall at the principal ofthe Association or at such other suitable place convenient to the Voting Delegates and the Members as the. ' Board may designate, either within the Properties or as convenient as is possible and practical. Meetings , maybe held by means of telephone conference, video conference or similar communications equipment, by means ofwhich all persons participating in the meeting can converse with each other. Participation by , one ofthesemethods shall constitute presence in person at such meeting. ' .2.3. " 'Annual The first meeting of the a regular or Special meeting, shall be held within one (1) year from the date of incorporation ofthe Association. Meetings . shall be of the Voting Delegates. , Subsequent regular meetings shall be held annually on a date and at a time set by the Board.
. .2.4. '.',' Special Meetings., The President may call special' meetings. "In addition, it shatl be the' . dutY. of the president to call: a special meeting within thirty (30) Days if so directed by resolution of the , Board 'or upon a petition signed by Voting Delegates representing at least twenty percent (20%) of the total Class "An votes in the Association or upon: written request ofthe Declarant.
2.5. Notice of Meetings. Written notice statingthe place, day, time and purpose of any meeting of the Voting Delegates shall be delivered to each Voting Delegate entitled to vote at such meeting, not less than ten (to)nor more than fifty (SO}Days before the date ofsuch meeting, by or at the direction ofthe president or the secretaI)' or the officers or persons calling the meeting. .
. .. . . ..' . . , .AT:92764.2
" ,."
No business shall be transacted at a meeting except as stated in the notice; provided howeyer, if Voting Delegates representing at least twenty percent (20%) of the Class "An votes are present at an annual meeting, in person or byprox)', matters in addition to those set forth in the notice of the meetirig may be voted upon without further notice Members. . . .. .
2.6. . ... Waiver QfNotice.. ofnotice of a meeting of the shall be deemed the equivalent of proper notice.. Any Voting Delegate may, in writing, waive notice of any meeting of the Association, either before or after such meeting..Attendance ata meeting shall be deemed a waiver of any objection as to notice ofthe time, date, and place thereof, unless a specific objection as to the lack of .
proper notice is given at the time the meeting is called to order. Attendance at a meeting also shall be .
deemed a waiver of notice of all business transacted at such meetiilg unless an objection on the basis of .
lack ofproper notice is raised before the business is put to a vote. .
.' . .' ,. .' . ..' .
2.7. Adjournment of Meetings... Ifany meeting of the ASsociation cannot be because a quorum is not present, Voting Delegates representing a Majority of the votes represented at such meeting may adjourn the meeting to a time not less than five (5) nor more than twenty (20) Days from the time the ... original meeting was called. At the reconvened meeting, if a quorum is present, any business. may be .. transacted which might have been transacted at the meeting originally called. If a time and place for ... reconvening the meeting is not set by those in attendance at·the originalpieeting or if for any reason a ...
new date is set·for reconvening the meeting after adjoumment, notice for .reconvening the meeting shall· be given to Voting Delegates in the manner prescnoed in Section 2.8. Voting. The voting rights of the Members shall be as set forth in the Declaration and in these By-Laws, and' such voting rights provisions are Specifically incorporated by this reference. The Board may adopt policies and procedures regarding the methods of casting votes, such as written ballots, secret ballots or computer access. .
2.9. List for Voting. After setting a date for notice ofa meeting, the Board shall prepare an alphabetical list of the names of the Voting Delegates entitled to notice of such meeting. The list shall show the address of the V9ting Delegate and the number of votes each is entitled to vote at the .
meeting. The list for voting shall be made available for inspection in accordance with Georgia law.
2.10.' Proxies. A Voting Delegate entitled to cast the votes for allUnitswithin such delegates' Neighborhood may not assign the right to cast such votes by proxy, butinay cast such votes only in . person or through such Voting Delegate's designated alternate. Any Member who is entitled to cast only the vote(s) for such Member's Unites) pursuant to Section 3.4 of the Declaration may cast such vote in' person or by proxy. On any matter as to which a Member is entitled to personally cast the vote.for such' Member's Unit, sucll vote may be cast in person (if a corporation, partnership, limited liability company, ..
or trust, through any officer, director, partner; member, manager or fiduciary duly authorized to act on . behalf of the Member) or by proxy, subject to the limitations of Georgia law relating to use of general proxies and Slibject to any specific provision to the contrary in the Declaration or these By-Laws. Every proxy shall be in writing specifying the .Unii(s) for whic.h it is given, signed by the Member or such Member's duly authorized attorney-in-fact, dated, and filed with the secretary of the Association prior to the meeting for which it is to be effective. UxiIess otherwise specifically provided in the proxy, a proxy "shall be presumed to cover all votes which the Member giving such proxy is entitled to cast; and in the . ". event ofany conflict between two (2) ormore proxiespurporting to cover the same voting rights, the later dated proxy shall prevail, or if dated as ofthe same date, both shall be deemed invalid.: Every proxy shall be revocable and shall automatically cease upon conveyance of any Unit for which it was given, or upon receipt ofnotice by the secretary of the death or judicially declared incompetence of a Member who is a natural person, or ofwritten revocation, or eleven (11) months from the date ofthe proxy, unless a shorter period is specified in the proxy.
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..2.11. .. Quorum. The presence of ten percent (10%) of the Class "A" votes entitled to be cast · shall constitute a quorum at alLmeetings of the Association. Ifit quorum is preserit at a duly called or .. held meeting, business may be continued until adjowmnent, notwithstanding the withdrawal of Voting Delegates leaving lesstban a quorum, provided that any action taken is approved by at least a Majority of the votes required to constitute a quorum. . .,. .
2: 12. Conduct of Meetings. The president shall preside over all meetings of the Association, · .. and the secretary shall keep the minutes of the meetings and. record in. a minute book all resolutions · . adoptcdandall other transactions occurring at such meetings.
2.13. Action Wifuouta Meeting. Any action required or by law be taken at a .. meeting of the Association may be taken without a meeting, without prior notic.e and without a vote if written consent specifically authorizing the proposed action is signed by all Voting Delegates entitled to vote on such matter. Such consents shall be signed within sixty (60) Days after receipt of the earliest dated consent, dated and delivered to the Association at its principal place. of business in the State of· .. Such consents shall be filed with the minutes ofthe Association and shall1ui.ve the same force and effect as a vote of the Voting Delegates at a meetiDg.... Within ten(lO) Days after receiving · . authorization for any action by written consent, the secretary shall give written notice to all Members sununarizing the material features of the authorized action.
· ARTICLE 3: BOARD OF DIRECfORS:· NUMBER, POwERS, MEETINGS
A. .Composition and .3.1.· Governing Body; Composition. The affairs of the Association shall be governed by a Board of Directors, each, of whom shall have one (1) equal vote. EXcept with respect to directors appointed by the Class "B" Member or serving as a representative of the Declarant, the directors shall be ...
eliglble Members or residents; provided however, no Owner and resident representing the same Unit may serve on the Board at the same time. No Owner or resident shall be eligible to serve as a director if any assessment for such Owner's or resident's Unit is delmquent.. A "resident" for the pllrposes of these By- Laws shall mean any natural person eighteen (18) years ofage or older whose principal place ofresidence · is a Unit within the Properties. In the case of a Member which is not anatural person, any officer, director, partner, member, manager, employee, or fiduciary of such Member shall be eligible to serve as a director unless otherwise specified by written notice to the Association signed by such Member, provided .
·that no Member may have more than one (1) such representative on the Board at a time, except in the case ·ofdirectorsappointed by orserving as representatives ofthe Class "B" Member or the Declarant.
" "." "
. 3.2.. Nuinberof::birectors.The Board shall consistof thtee(3)to five (5)directors, as provided in Sections 3.3 and 3.5 below. The initial Board shall consist ofthrCe (3) directors appointed by· .
. the Class "B" Member as provided in Section 3.3 and shall be increased as provided in Section 3.5. After .
the termination of the Class "B"membership, the Board may,. by resolution, irtcrease or decrease the number of directors. . .
3.3. .. Directors DUring Class "B" Control Period.. Subject to the provisions of Section 3.5, the.
· directors shall be selected by the Class "B"Member acting in its Sole discretion and shall serve at the · pleasure ofthe Class "B" Member during the Class "B" Control Period. Directors appointed by or serving as representatives of the Class ''B'' Member or the Declarant shall not be subject to the .
qualifications for directors set forth in Section 3.1.
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Nonrlnationand Election Procedures .
(a) . . Nomination ofDirectors.. The Board IIUly establish a nominating committee consisting of a chairperson, who shall be a member of the Board, and three (3) or more Members or representatives of· Members. Ifestablished, the nominating coinn1ittee shall be'appointed by the Board not less than thirty
(30) Days prjor to each election to serve a tenn of one (1) year or until their successors are appointed, and stich appointment shall be announced at the election,· A nominating conunittee shall make as many nominations for election to the Board as it shall in its discretion deterriUne, but in no event less than the number of positions to be filled as provided ill Section 3.5 below. The nominating committee shall nominate separate slates for the directors, ifany, to be elected at large by all Voting Delegates, and for the director(s) to be elected by the votes within each Voting Group. In making its nominations, a nominating committee shall use reasonable efforts to nominate candidates representing the diversity which exists within the pool ofpotential candidates. ' . , .
Nominations shall also be.permitted from the floor 'at a meeting of the Association. All candidates shall have a reasonable opportunity to communicate their qualifications to the Members and to .
'solicit votes. Directors appointed by or setvingas representatives of the Class Member or the ·.·Declarant shall not be subject to these nomination requirements. .
, (b) , 'Election PrOcedures. Each Voting may cast all the Umts ' which such Voting Delegate represents for each position to be filled from the slate ofcandidates on which such Voting Delegate is entitled to vote. There shall be no cumulative voting.1bat number ofcandidates equal to the number of positions to be filled receiving the greatest number of votes shall be elected.
Directors may be elected to serve any number ofconsecutive terms.' .. . .' . , .
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3.5., .' Electionand Tenn ofOffice. Notwithstanding any other provision oftheseBy-L8ws:
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(a) At the first Association meeting occurring after Class "A" Members, other than Builders own one thousand (1,000) 'UnitS or whenever the Class "B" Member earlier detemiines, the Association , llhlill hold an election at which the Voting Delegates shall be entitled to elect one el) of the three (3)
directors, who shall be an at-large director and shall serve a tennof two (2) years or until the· occurrence· of the, event described in subsection (b), whichCver is shorter. ,Ifsuch director's expires prior to the.
occurrence of the event described in subsection (b); a successor shall be elected for a like term. The remaining two (2) directors shall be appointees of the Class "B"Member. '
(b) At the fn! Association meeting occurring after termination of the Class "B" Control Period, an election shall be held. Four (4) directors shall be elected by the Voting Delegates. IfVoting . Groups have.been one (1) director shall be elected by the Voting Delegates representing each Voting Group and any remaining directorships filled at large by the vote ofall Votiitg Delegates..Two (2)
directors shall serve a term of two (2) years, and two (2) directors shall serve a tenn of one (I) year, as, ' . such directors detennine among themselves. ' . ,. (c) ,Until termination of the Class ''B'; membership, the Class "B" Member shall be entitled to appoint,remove and replace one (1) director. Upon tCrmination of the Class ''B'' membership, the .,. director appointed by the Class ''B'' Member shall resign and'the remaining directors shall be entitled to ' , appoint a director tO,serve until the next annual meeting, at which time the Voting Delegates shall be , entitled to elect a director to fill such positio.n;.· Such director shall be elected for a term oftwo (2) years.
, (d), Upon the expiration of the tenn of office of each director elected by the Voting Delegates, the Voting Delegates entitled to elect such director shall elect a successor to serve a tenn of ,\""I AT:92764.2 ·· .. 4
(', ('.\ 145 .. two (2) years. .The directors elected by the Voting Delegates shall hold office until their .
successors have been electe,d. . . .
·3.6. Removal ofDirectors and Vacancies.. Any director by the Voting Delegates may be removed, with or without cause, by Voting Delegates representing a Majority votes entitled to ·be cast for the election of such· director, but shall not be subject to solely by· the Class "B"
·Member. Any director whose removal is sought shall be given notice prior to any meeting called for that · purpose. Upon removal of a director, .a successor shall be elected by the Voting Delegates entitled to ..
elect the director so removed tofill the vacancy for the remainder ofthe term ofsuch director.
Any director elected by the Voting Delegates who has. three (3) or more qonsecutive unexcused .
absences from Board meetings, or who is more than thirty (30) Days delinquent (or is the resident of a .
Unit that is delinquent or is an officer, director, partner, member, employee, or trust officer ofa Member · who is delinquent) in the payment of any assessment or other charge due the.AssOciation•. may be ·removed by a Majority of the directors, and the Board may appoint a successor to fill the vacancy until the next annual meeting, at :which time the Voting Delegates entitled to fill such directorship may elect a · successor for the remainder ofthe term. . .
. . .
. In the event of the death, disability, or resignation of ail elected adoption ofa Board resolution increasing the number of directors. the Board may declare a vacancy and appoint a ...
. . successor to fill the until the next annual meeting,.at which time the Voting DelegateS entitled to· . . fill such. directorship may elect a successor.for the remainder of the term. Any director that the Board · appoints shall be selected from among Members and residents within the Votirig Group represented by··· ..
the director who vacated the position. .
. This Section shall not apply to directors appointed bytheCliss nor to any director serving as a representative of the Declarant: The Class "B" Member or the Declarant shall be entitled to · appoint a successor to fill any vacancy on the Board resulting from· the death, disability or resignation ofa .
director appointed by or elected as a representative ofthe Class''B'' Member or the Declarant.
.. B. Meetings..
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3.7. .. Organizational Meetings. Within thirty (30) Days after the election or ·appointment of new directors,· the Board shflll hold an organizational meeting at such time and place. as the Board shall set. .... .... .
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.··3.8 Regular Meetirigs.. Regular meetings of the Board may beheld at such time and place as .
· a Majority of the directors shall determine, but at least one (1) such meeting shall be held during each·· ·quarter. . .. . .. ... •. .... . . . ..
3.9. Special .. Special meetings of the Board· shall be held when called by written·· noticesigned by the president or vice president orby any two (2) directors.
3.10. Notice. Notice ofa llhall be communicated todIrectors not less than ·(4) Days prior to the meeting.. Notice of a special meeting shall be communicated to directors not less . than seventy-two (72) hours prior to the meeting. No notice need be given to any director who has signed a waiver of notice or a written consent to holding of the meeting. The notice shall specify the time and place of the meeting and, in the case of a special meeting; the nature of any· special business to be considered. Noticessball be given to each director by: (a) personal delivery; (b) first class mail, postage· .prepaid; (c) telephone communication, either directly to the director or to a person atthe director's office or home who would reasonably be expected to communicate such notice promptly to the director; (d)· AT;92764.2
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'.' . telecopiertransnussiori to the home or office, with conflfDlition ofreceipiby telecopier; (e) telegram, charges prepaid; (f) overnight or same day delivery, charges prepaid; or (g) .
electronic mail or e-mail using JIitemet accessible equipment and services if the director has consented in .
writing to such method of delivery and has proVided the Board with an electronic mail or e-mail address;
All such notices shall be given at the director's telephone or telecopier number or sent to the director's address as shown on the records of the Association. Notices sent by frrst class' mail shall be deemed commUnicated when' deposited into a United States' mailbox. .Notices given by personal, overnight or · courier delivery,' telephone, telecopier; telegraph, electronic mail, or ,e-mail shall be deemed communicated when delivered, telephoned, telecopied, electronically mailed, e-mailed, or given to the telegraph company. ' 3.11. Waiver of Notice. " The transactions of any meeting of the Board, however called and noticed or wherever held, shall be.as valid as though taken at a meeting duly held after regular call and . '.
notice if(a) a quorum is present, and (b) either before or after the meeting each of the directors not · present signs a written waiver of notice, a consent to holding the meeting, or an approval ofthe minutes.
·The waiver ofnotice or consent need not specify,the pUrpose of the meeting. . Notice ofa meeting also ',shall be deemed given to any director who attends the meeting without protesting before' or at its commencement about the lack of adequate notice. . .
, 3.12.' Participation in Members of the Board or any committee designated by Board may participate in a meeting of the Board or committee by means oftelephone conference, Video conference or siniilar commimications equipment,- by means of which all persons participating in the ·'meeting can converse with each other. Participation in a meeting pursuant to this Section shall constitute ' · presence in person at such meeting; . .' .
3.13. Ouorum of Boai'd of Directors. At all meetings of the Board, a Majority of the directors 'shall constitute a quorum for the transaction of business, and the votes of a Majority of the directors present at a meeting at which a quorum is present shall constitute the decision of the Board, unless , otherwise specifically provided in these By.Laws or the Declaration.' A meeting at which a quorum is initially present may continue to transact business, notwithstanding the withdrawal of directors, if any , action taken is approved by at least a Majority ofthe required quorum for that meeting. Ifany meeting of ,the Board cannot be held because a quorum is not present, a Majority of the directors present at such .' meeting may adjourn the meeting to a time not less than four (4) nor more than twenty (20) Days from the date of the original meeting. At the reconvened meeting, if a: quorum is present, any business which might have been transacted at the meeting originally called may be transacted without further notice.
. ' 3.14. Compensation.' Directors shall not receive any from the Association for . acting as such unless approved by Voting Delegates representing a Majority of the total Class "A" votes in the Association at a regUlar or' special meeting ofthe Association. Any director may be reimbursed for ' .
,expenses incurred on behalf of the Association upon approval of a Majority of the other directors.
. . Nothing herein shall prohibit the Association from compensating a director, or any entity with which a director is affiliated, for services or.supplies .furnished to the Association· in a capacity other than as a ,director pursuant to a contract or agreement with the Association, provided that such director's interest '. was made known to the Board prior to entering into such contract and such contract was approved by a . 'Majority ofthe Board ofDirectors, excluding the interested director. . .' 3.15.' . The president shall preside meetiDgs ofthe Board,andtbe secretary shall keep a minute ofBoard meetings,recording all Board resolutions and all transactions and proceedings occurring at such meetings. In the case of a tie vote on a motion, or resolution before the Board, the motion or resolution is considered lost. ' '. ...,. , AT:92764.2 6 ,
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3.16. Open Meetings..Subject to the provisions of Sections 3.12 and 3.17, all meetings of the .
Board shall be open to all Voting Delegates and, ifreqwred by law, all Members, 'but attendees other than.' directors may not in any discussion or deliberation unless permission to speak is requested on .
an attendee's behalf by a: director. In such case, the president may limit the time any individual may speak. Notwithstanding the above, the'president may adjourn any meeting of the Board, reconvene in executive session, and exclude Persons other than directors, to discuss matters of a sensitive nature, such as pending or threatened litigation, personnel .' .
.' 3.17.··· Action Meeting. Any actiontobe taken at a meeting ofthe directors or any action that may be taken at a meeting of the directors may be taken without a meeting ifa consent iIi 'writing, setting forth the action so taken. is signed by all ofthe directors, and such corisent shall have the.
same force and effect as a unanimous vote. . .
. C; . Powers and Duties..
. . 3.18. Powers; The'Board shall have all ofthepoYlers and duties Iiecessaryfor the administration of the Association's affairs and for performing all responsibilities and exercising all rights of the Association as set forth in the Governmg Documents and as provided by law. The Board may do or cause to be done all acts and things which the Govemin:g DOcWnentsor Georgia law do not direct to be done and exercised exclusively by the Voting Delegates or the membership generally.' ..
3.19. Duties. The duties ofthe Board shall include, without limitation:
(a) preparing 'and adoptIDg,. in accordance with the .. Declaration, an annual' budget establishing each Owner's.share ofthe Common Expenses and any Neighborhood Expenses; .
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(b) levying and collectirigsuch llSsessments from the Owners;
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(c) . providing for' the operation,.care,upkeep, and maintenance of the Area'o( Common Responsibility; . . . .
(d) designating: .hiring, and dismissing the personnel necessary to carry out the rights and resporiSibilitiesof the Association. and where appropriate, providing. for the compensation of such.
. personnel and for the purchase ofequipment, supplies, and materials to be used by such personnel in the performance oftheir duties; . , .
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all funds received on behalf of the Association in a bank depository which it ..' shall approve and'using such funds to operate the Association, provided any reserve funds may be ..
deposited, in the. directors'! best business judgment, in depositories other than banks;
(f) making and amending nIles in accordance With the Declaration;
, (g) opening bank .on behalf of the' Association.and designating the signatOries .' ,. . .' .
required; .
. (h) . contracting for repairs, additions,' and Area in accordance with the Governing Documents; t6 or alterations of the COmmon . . .
(i) enforcing by legal means the provisions of the .Govemfug Documents and bringing any .
proceedings.which may be instituted on behalfofor againstthe Owners concerning the Association;
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m andcanjingproporty and liability insuranocandfidemy os m.
the Declaration, paying the cost thereof, and filing and adjusting claims, as appropriate;·· .. .
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(k) paying the costs ofall serVices rendered to the Association; •.
(I) ·.keeping books ;accounts ofthe receipts and expenditures ofthe Association;
.(m) . making available to any Owner, and the holders, insurers, and gumtors of any Mortgage on any Unit, current copies of the Governing Documents and aU· other books, records, and .
financial statements ofthe Association as providedin Section 6.4; . . . ' . . .....' .
(n)· . permitting utiiity suppliers to use portions of the Cornmon Area reasonabiy necessary to the ongoing development or operation ofthe Properties; and . . '
(0) indemnifying a director, officer or ARB or committee member,or Cormer director; officer , or ARB or committee member of the Association to the extent such indemnity is required or permitted under Georgia law or the Governing DocUments. ' . '.' .' ' . . .' .
3.20. Management. The Board may employ for 'the Association a professioDlll management· ' . ' agent or agents at such compensation as the Board may establish,to perfonn such duties and serVices as· · the Board shall authorize. ··The Board may delegate such powers as· are necessary to perfonn the manager's assigned duties, but shall not delegate policy-making authority. The Declarant or an affiliate ofthe Declarant may be employed as managing agent or manager.. ' The Board may delegate toone (l) of the authority to act on behalf of the 'all matters relating to the dutieS of the managing agent or manager, if any, ,which might arise between ·meetings of.the Board. ' . . ..
3.21. Accounts and Reports. The followed unless the Board by resolution specifically detennines otherwise: standardS of performance shall be' ..
(a) ·be employed;
cash or accrual accounting, as defined by generally accepted accounting principles, shall
(b) accounting and controls should conform to generally accounting principles;
(c) cash accounts ofthe Association shall not be commingled with anyother accounts;· , (d) no remuneration. shall be accepted. by .the .managing agent from· vendors, ,independent contractors, or others providing goods or services to the Association, whether in the form ofcommissions, • . , finder's fees, service fees, prizes, gifts, or otherwise; any item of value received shall benefit the '.' Association; ..
(e)· . any financial or other interest which the managing agent may have in any finn providing goods or services to the Association shall disclosed promptly to the Board; and . ,(t) an annual fmancial report shall be made available to all Members within one hundred tWenty (120) Days after the close of the fiscal year. Such anmialreport may be prepared on an audited, , reviewed or compiled basis, as the Board deteimines. .. . ' .
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... 3:22. Borrowing. The Association shall have the power to borrow money foranylegal . purpose; provided however, if the proposed borrowing is for the purpose of making discretionarY capital . improvements and the totid amO\mt of such borrowing, together with all oilier debt incurred within the .
previous twelve (12) month period, exceeds or would exceed ten percent (10%) of the budgeted gross expenses of the for that fiscal year, the Board shall obtain the ipproval of Voting Delegates representing at least sixtY,seven percent (67%) of the total votes allocated to Units prior to borrowing such moneY.' , 3.23. Right to Contract. The ASsociation shall'have the right to contract with any Person far the performance of various ,duties and fimctions.' This right shall include, without limitation, the right to ,enter into, common management, operational, or other agreements with trusts, condominiums, cooperatives, or Neighborhood and other owners or residents associations, within and outside the Properties.
i' 3.24., Enforcement.
.., ' (a)." Notice.· Prior to of any with these as set forth in the Declaration, the Board or its delegate shall serve the alleged violator with written notice including (i) the nature of,the alleged violation, (ii) the proposed sanction to be imposed, (iii) a statement that the alleged violator may present a written request for a· hearing. to the Board or the covenants committee, ifone has been pursuant to Article 5, Within fifteen (15) Days ofth,e notice; and (iv)
• a statement that the proposed sanction shall be imposed as contained in the notice unless a request for a heariiig is received within 'fifteen (15) Days of the notice. Ita timely request is not received, the sanction stated in the notice shall be imposed; provided however, the Board or covenants'committee may, but shall ,not be obligated to, suspend any proposed sanction if the violation is cured within the fifteen (15) Day period. Such suspension shall not constitute a waiver of the rightto sanction future violations of the same ., or other provisions and rules by any Person. In the event ora continuing violation, each day the violation continues .beyond the fifteen (15) Day period shall conStitute a separate offense, and fines may be imposed on a per diem basis without further notice to the violator. In the event ofa which 'recurs within one (1) year from the date of any noticebereunder, the Board or covenants coinmitteemay impose a sanction withoutfurther notice to the violator. '
(b) Hearing. Ifa hearing requested within the allotted fifteen (15) Day perl04, the hearing , 'shall be held before the covenants committee, or if none has been appointed, then before the Board in , executive session. ' The alieged violator shall be afforded a reasonable opportunity to be heard. Prior to the effectiveness of any sanction hereunder; proof of proper, notice·shall be placed in the minutes of the meeting. Such proof shall be deemed adequate if a copy of the notice, together with a statement of the date and manner of delivery, is entered by the officer, director, or delegate who delivered ,such notice.
The notice requirement shall be deemed satisfied if the alleged violator or its representative appears at the meeting. The minutes of the meeting shall contain a written statement of the results of the hearing and the , sanction, if any, imposed;! The Board may adopt a schedule of sanctions for violations of the Governing Docwnents.'· ' .,
(c) If a hearing is held before a covenants conimittee, the violator shall have the , right to appeal the committee's decision to the Board. To exercise this right, a written notice of appeal.
must be received by the manager, or secretary of the Association Within fifteen (15) Days after the hearing date. .
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ARTICLE 4: OFFICERS
4.1. ' OfficerS. The officers of the Association shall be a president, secretary,' and treasurer.
The president and secretary shall be elected from among the members of the Board; other officers may, but need riot be members of the Board. The Board may appoint such other officers, including one (I) or ' more vice presidents, one or more assistant secretaries and one (l)or more assistant treasurers, as it shall ' deem'desirable, such 'officers to have such authority and perform such dutieS as the Board prescribes.
Any tWo (2) or more offices may be held by the same person, except the offices of president and secretary. , . . .' . . . . . .' .' .. .'. . .' . . ."
4.2.' Election and Term of Office. The Board shall elecfthe officers of the Association at the ' first meeting of Ule Board following each election of new directors. Such officers shall serve until their successors are elected. ' ' '.. '.' ." . . .
4.3. Removal and Vacancies. The Board may remove any officer whenever in its judgment , the best interests ofthe Association will be served and may fill any vacancy in any office arising because ofdeath, resignation, removal, or otherwise for the unexpired portion oftheterm. ' . . . . .
4.4. Powers and Duties. The of the AssOCiation each Iulve such powers' and , duties as generally pertain to their respective offices, as well as such powerS and duties as may, specifically be conferred or imposed by the Board ofDirectors. The president shall be the chiefexecutive officer of the Association. The treasurer shall ,have primary responsibility for the preparation of the budget as provided for in the Declaration and may delegate all or part of the preparation and notification ,duties to a finance committee, management agent, or both; The secretary, shan ,be responsible for preparing minutes of meetings of the Association and the Board ,and for authenticating records of the Assciciation. " " , 4.5., Any officer may resign at any time 'by giving written to the Board of Directors, the president, or the secretary. Such resignation shall take effect on the date of the receipt of such notice or at any later time specified therein, and unless otherWise specified therein, the acceptance of such resignation shall not be necessary to make it effective.
, ,,4.6. 'Agreements, Contracts. Deeds. Leases. Checks. Etc. All agreements, contracts, deeds, , , "leases, 'checks, and other instruments of the Association shall be executed by at least two (2) officers or by , such other person or persons as maybe designated by Board resolution; , 4.7. Compensation. Compensation of officers shall be subject to the same limitations as compensation of directors under Section 3.14. '
ARTICLE 5:-- COMMITTEES
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5.1. General. The Board appoint such it deems appropriate to perform such tasks and to serve for such periods as the Board may designate by resolution. Each committee shall operate in accordance with the terms of such resolution. Unless otherwise provided by the Board, ,; conunittee members shall be eligible Or residents; provided however, no Class"A" Member ' may have more than one{l)representiitive on a committee at any time. No committee 'appointed by the , Board shall be empowered to take any affirmative action nor to 1:Iind the Board or the Association without the consent ofthe Board. ' 5.2,' Covenants Committee: In addition to any other which the Board may establish pursuant to the Declaration, these By-Laws and, specifically, Section 5.1, the Board may appoint AT;92764.2 10
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a covenants committee at least three (3)'and no more seven (7) Members. Acting in 0 accordance with the provisions of the Declaration, these By-Laws, and the Board may adopt, the covenants conimittee, if established, shall be the hearing tribunal ofthe'Association and shall conduct all hearings held pursuant to Section 3.24 ofthese By-Laws. 0 0 0 . . . '. .
5.3. Neighborhood Comnlittees. In addition to any other committees appointed as provided 0 above, each Neighborhood which has. no formal organizational structure or association may elect a oO.Neighborhood Committee to determine the nature and 'extent of services, if any, to be provided to the Neighborhood by the Association in "addition to those Provided to all Members of the Association in 0 accordance with the Declaration. A Neighborhood Committee may advise the Board on any other issue, .
but shall not have the authority to bind the Board or the Association. Such NeighborhOod Corimrittees, if .
elected, shall consist of three (3) too five (5) Members, as detenninedby the vote of at least a Majority of 0 the Owners ofUnits within the Neighborhood. ' Neighborhood Committee members shall be elected for a term of one (1) year or until their o.
successors are elected. Any director elected to the Board of Directors from a Neighborhood shall be an.
oex officio member of the 0 Neighborhood Committee. The Neighborhood Committee shall elect a 'chairperson who shall preside at its meetings and shall be responsible for transmitting any and all commwrications to the Board. 0 , o In°the conduct ofits duties and responsibilities, Committee oshall abide by the omeeting, notice and quorllllt requirements applicable to the Board under Sections 3.8,3.9.3.10, and 3.11.
Meetings of a Neighborhood Committee shall be open to all Owners of:Units in the Neighborhood and their representatives; provided however, a Neighborhood Committee may act by unanimous written consent in lieu of a meeting. . o' .
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ARTICLE 6: MlSCELLANEOUS 6.1. Fiscal Year. The fiscal year the shall be the year wl1ess the Board establishes a different fiscal year by resolution. 0 • 6.2. Parliamentary Rules. Except as may be modified by Board Robert's Rules of .0 00 Order Newly Revised (current edition) shall govemthe of Association proceedings when notin conflict with Georgia law, the Articles ofIncorporation, the Declaration, or these By-Laws. 0 6.3. '. Conflicts. Ifthere aieconflicts.betweenthe provisions of Georgia law, the Articles of .Incorporation, theDeclaration, and these By-Laws, the provisions of Georgia law, the Declaration, the .
o'Articles ofIncotpOtation, and the By-Laws (in that order) shall prevail. . 0 0 6.4. Books and Records.
(a) Inspection by Members and Mortgagees. The Board shitU make available for inspection and copying by any holder. insurer or guarantor of a first Mortgage on.a Unit, any Member, or the duly appointed representative of any of the foregoing .at any reasonable time and for a purpose reasonably 0 0 . related to bis or her interest in a Unit: the Declaration, By-Laws, and Articles of Incorporation. any amendments and supplements to the foregoing, the rules of the Association, and the minutes ofmeetings' of the Members. the Board. and conunittees. The Board shall provide for inspection to take place at o.
the office of the Association or at such other place within the Properties as the Board shall designate oduring normal business hours. 0 0 . ;"
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a consistingof atleast three more than seven (7) Members. Acting in' accordance with the provisions of the Declaration; these By-Laws, and resolutions the Board may adopt, ' the covenants conimittee, ifestablished, shall be the hearing tribunal of the' Association and shall conduct all hearings held pursuant to Section 3.24 ofthese By-Laws. " , "
, , ' 5.3. Neighborhood Comnlittees. In addition to any other committees appointed as provided above, each Neighborhood which has no formal organizational structure or association may elect a, "Neighborhood Committee to determine the nature and extent of services, if any, to be provided to the Neighborhood by the Association in addition to those provided to all Members of the Association in accordance with the Declaration.' A Neighborhood Committee may advise the'Board on any other issue, , but, shall not have the authority to bind the Board or the Association. Such Neighborhood Committees, if ' elected, shall consist ofthree (3) to five (5) Members,as detemrinedby the vote of at least a Majority of ' the Owners ofUnits within the Neighborhood. ' ' , , . ' , , , , Neighborhood Committee shall be elected for a one (l) year or \D1til their , successors are elected. 'Any director elected'to the Board of Directors from a Neighborhood shall be an ,,', , ex officio member of the' Neighborhood Committee.' The Neighborhood Committee shall elect a 'chairperson who shall preside at its' meetings' and shall' be responsible Jortransmitting any and all , communications to the Board.
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. . '., In the conduct ofits duties and responsibilities, each Neighborhood Committee shall abide by the , meeting, notice and quorum requirements applicable to the Board \D1der Sections 3.8,3.9,3.10, and 3.11.
Meetings of a NeighborhoOd Committee shall be open to all Owners of:Units in the Neighborhood and their representatives; provided however, a Neighborhood Committee may act by Wlanimous ,written consent in lieu ofa meeting. " , '
ARTICLE 6: MISCELLANEOUS'. .' .' .' . . .
6.1. Fiscal Year. The fiscal year of the shall be calendar year the "
Board establishes a different fiscal year by resolution. ' "
'6.2.' Parliamentary Rules. Except as may be modified by Board Robert's of ' " Order Newly Revised (current edition) shall govern the conduct of Association proceedings when notin conflict with Georgia law,'the Articles ofIncorporation, the Declaration, or these By-Laws.
,6.3. there of Incorporation, the, Declaration, and these By-Laws, the provisions of Georgia law, the Declaration, the , Articles ofIncorpotation, arid the By-Laws (in that order) shall prevail. . " , . . ,"
, , 6.4. Books and Records. ,.
'. ':'. .
,(a) Inspection by Members and Mortgagees. The Board shall make available for insPection ' and copying by any holder, insurer or guarantor of a first Mortgage on ,a Unit, any Member, or the duly appointed'representative of any of the foregoing ,at any reasonable time and for a purpose reasonably , related to his, or her interest in, a Unit: the Declaration, By·Laws, and Articles of Incorporation, any , amendments and supplements to the foregoing, the roles of the Association, and the minutes of meetings' of the Members, the Board, and committees. The Board shaH provide for such inspection to take place at the office ofthe Association or at such other place within the Properties as the Board shall designate during norrnalbusiness h()urs., ' , AT:92764.2 '11
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(b) ,"Rules for Inspection. The Board may establish rules withrespect to:, ' V
(i) notice to be given to the custodian ofthe records;,"
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(ii) hours and days ofthe week when such an inSpection may be made; and ,'(iii) '. payment ofthe.cost ofreproducing ofdocuments requested . . .' .: .
, (c) 'higiJection by Directors. EveI)' 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 a copy of relevant documents at the expense ofthe Association. ' '.. .
, as otherwise provided in the or these By-Laws, all demands, bills; statements, and other communications under the Declaration or these By-Laws shall be in writing and' shall be deeinedto have been duly given if delivered personally or if sent by United States, inail, fIrst class postage prepaid: ',' , , ,
(a) " ,'if to a Member or Voting Delegate, at the address which the orVoting Delegate ' has designated in writing and filed with the or, if no such address has been designated, at the, , address ofthe Unit ofsuch Member orYoting Delegate;'of ' ' ,',' , , ' " ' " ' .' "
(b) if to the Association, Board, or' the' mana'ging agent,' at the principal office of the Association or the managing agent or atsuch other address as shall be designated by notice iIi writing to ' the Members pursuant to this Section.
If mailed, any noticeshall be deemedto delivered whendeposited in the United States mail 'addressed with postage' prepaid. To increase flexibility, any Person, inciuding the Association, may ,consent to or request in writing additional methods of receivingnotice,including but J?ot limited to, , facsimile, electronic mail or e-mail. ' ,6.6. "Amendment.,
(a) " ' "By" Declarant.' Until termination of the Class ''B'; membership, the Declarant' may unilaterally amend these By-Laws for any purpose. Thereafter, the Oeclarant may unilaterally amend these By-Laws at any time and from time, to time if such· amendment is necessary· (i) to bring any ,provision into compliance with any applicable governmental statute,' rule, regulation, or' judiCial , determination; (ii) to enable any reputable title insurance company to issue title insurance coverage on the Units; (iii) to enable any institutional or govemmentallerider. purchaser, insurer or guarantorofMortgage 'loans, including, for example,the Federal National Mortgage Association or Federal Home Loan , Mortgage Corporation, to make, purchase, insure or guarantee Mortgage loans on the Units; or (iv) to satisfy the requirements of any local, state, or federal govemmentalagency. However, any such amendment, shall not adversely affect the title to any Unit lmless the Owner shall consent thereto in writing. ' In addition, during the Development Period, the Declarant may unilaterally amend these By- " Laws for any other purpose, provided the amendment has no material adverse effect upon any right ofany Member. ' ' . , ' ,
(b) By the Board. The Board' shall be authorized to amend these By-Laws without the consent of the Members (i) for the purpose of submitting the Properties to the Georgia Property Owners' Association Act, O;C.G.A. §44-3-220, et seq. (1994) and conforming these By-Laws to any mandatory provisions thereof, and (ii) to correct scriveners' errors and other mistakes offact, provided that any '/ AT:927642 12
amendments under this provision have no material adverse effect on the rights of the MembersạỊDuring
the Development Period, any such amendment shall require the consent of the Declarant.
(c): By Members. Except as provided above, these By-Laws may be amended only by the
affirmative vote or written consent, or any combination thereof, of Voting Delegates representing sixty-
seven percent (67%) of the total Class "A" votes in the Association, and, during the Development Period,
the written consent of the Declarant. In addition, the approval requirements set forth in Article 15 of the
Declaration shall be met, if applicable.
Notwithstanding the above, the percentage of votes necessary to amend a specific clause shall not
be less than the prescribed percentage of affirmative votes required for action to be taken under that
clause.
(d) Validity and Effective Date. Any amendment to these By-Laws shall become effective
upon recordation in the Public Records, unless a later effective date is specified in the amendment. Any
procedural challenge to an amendment must be made within six (6) months of its recordation or such
amendment shall be presumed to have been validly adopted. In no event shall a change of conditions or
circumstances operate to amend any provisions of these By-Laws.
No amendment may remove, revoke, or modify any right or privilege of the Declarant or the
Class "B" Member without the written consent of the Declarant, the Class "B" Member, or the assignee
of such right or privilege
If a Member consents to any amendment to the Declaration or these By-Laws, it will be
conclusively presumed that such Member has the authority to consent and no contrary provision in any
Mortgage or contract between the Member and a third party will affect the validity of such amendment.
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