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Ashton ParkSHE'ILA STUr~nLF~r,..q: DECLARATION OF PROTECTIVE COVENANTS, CONDITIONS, RESTRICTIONS AND EASEMENTS FOR ASHTONPARK TillS INSTRUMENT ESTABLISHES A MANDATORY MEMBERSHIP HOMEOWNERS ASSOCIATION BUT DOES NOT SUBMIT TI-lIS DEVELOPMENT TO THE PROVISIONS OF THE GEORGIA PROPERTY OWNER'S ASSOCIATION ACT, O.C.G.A. § 44-3-220 ET s~?. DECLARATION OF PROTECTIVE COVENANTS, CONDITIONS, RESTRICTIONS AND EASEMENTS FOR ASHTON PARK - TABLE OF CONTENTS. A~icle 1 1.1 "Articles of Inco~oration" .............................................. -2- 1.2 "Association" ........................................................ -2- 1.3 "Board of Directors" or "Board" ......................................... -2- 1.4 "Bylaws" ........................................................... -2- 1.~ "Common Property". .................................................. -2- 16 .C~ 2 1.7 ".Communi_ty-Wide Standard" ........................................... -2- 1.8 "Declarant" .......................................................... -2- 1.9 "1--0,~" . .............................................................. -3- 1.10 "]Y[ORgZ~" . ......................................................... -3- 1.11 "Mortgagee" ......................................................... -3- 1.12 "Occupant" .......................................................... -3- 1.13 "Owner". ........................................................... -3- 1.14 "Person" ............................................................ -3- I.I5 "Total Association Vote" . .............................................. -3- 2.1 2.2 3.1 3.2 Article 2 Pro~rty Sub_iect To This Declaration .................... -3- Property_ Hereby Subjected To This Declaration ............................. -3- Other Property. ....................................................... -3- Article 3 Association Membership.and Voting Rights ................. -4- Article 4 Assessment~ .............................. -4- 4.1 Purpose of Assessments ................................................ -4- 4.2 Creation oft_he Lien and Personal Obligation for Assessments .................. -4- 4.3 General Assessments .................................................. -5- -i- 4.4 Special Assessmems ................................................... -5- 4.5 Specific Assessments .................................................. -5- 4.6 Subordination of Liens to Mort~ges ...................................... -6- 4.7 Remedies of the Asso¢iatiorl ............................................ -6- 4.8 Date of Commencement of Assessm~mq ................................... -7- 4.9 Capitalization of Associatioa ............................................ -7- 4.10 Budget Deficits During Declarant Conh, o! ................................. -7- 4.11 ....................................................... -s- Article 5 Maintenance: Conveyance of Common Property to Associat~on .......... -8- 5,1 Association's Res~nsibility ............................................ -8- 5.2 Owner's Responsibili_ty ................................................ .g. 5.3 Conveyance of Common Property_ by Declarant to Association ................. -9- 5.4 Partition ............................................................ -9- Article 6 Architectural Standards and Use Restrictlong ................. -9- 6.1 Rules and Regulations ................................................. 6.~2 Residential Use ....................................................... -9- 6.3 Architectural Smadards ............................................... -10- 6.4 Signs .............................................................. -12- 6,5 .................................................... -12- 6.6 Leasing ............................................................ -t2- 6.7 A~ .................................................... -12- 6.8 Nuisance ........................................................... -13- 6.9 Unsightly or Unkempt Conditigp,~ ....................................... -13- 6,10 Antenna~ ........................................................... -13- 6.11 TrecRemoval ....................................................... -13- 6.12 12rg/n ........................................................... -14- 6.13 S{ght U{s'famce at Intersectig/]{ .......................................... -14- 6,14 C~bage Cans. Woodp[les. E{c .......................................... -14- 6,15 ~ ................................................... -14- 6.16 Fences ............................................................. -14- 6,17 ]./li]/l;y.J.~l]~ ........................................................ -14- 6.18 Air-Conditioning Units ............................................... 639 ISgl~ng ........................................................... -14- 6.20 Artificial Vegetation. Exterior Sculplure. and Similar Item,s ................... -15- 6.21 Ener_~y Conservation Equipment ........................................ -15- 6.22 ~ .................................................... -15- 6.23 Gardens. Play F~.uipment and Pools ..................................... -15- 6.24 Mailboxes .......................................................... -15- 6.25 Clothesline4 ........................................................ -15- 626, ~ .... ............................................... · -15- 6.27 .T.x~,~gll~g J.~ ................................................. -15- Article 7 [O~u~n~ and Casualty. Losses ...................... -16- 7.1 Insurance on Common Property_ ........................................ - 16- 7.2 ]l~[i~L]ll~ ................................................. -16- 7.3 Damage and Destruction - Insured by Association ......................... - 17- 7.4 Damage and Destruction -- Insured by Owners ............................ -17- Article 8 ~ ............................ -I7- 9.1 9.2 Article 9 Annexation of Additional Property_ .................... - 1 g- Unilateral Annexation By Declarant .................................... -18- -18- Article I0 10.1 ................................................... -18- 10.2 No PHoriiv ......................................................... 19- 10.3 l~lotice to Association ................................................ -19- 11.1 11.2 11.3 11.4 11.5 11.6 11.7 11.8 11.9 II.10 Article 11 Easements for Use and En_ioyment ..................................... -19- Easements of ~..ncmachmcnt and Maintenance ............................ -20- ......... -20- Easemants for Utilities ............................................... -20~ Easement for Emergency Entry_ ........................................ -2 l- I~.asemcnt for Maintenance ............................................ -21- Easement for Entry_ Features and Streetscapes ............................. -21- l~f~ement for Drain_age ............................................... -21- Easement During Construction and Sale Period ........................... -22- Easement for Sidewalks and Signs ..................................... -22- Article 12 ~ .......................... -23 - 12.1 ?.al0~ ....................................................... -23- 12.2 ~ ................................................... -23- 12.3 Self-Help ......................................................... -23- 12.4 D~fion .......................................................... -24- 12.5 12.6 12.7 12,8 12,9 12.10 12.11 12.12 12,13 12.14 12.15 12.16 12.17 12.18 12.19 Terminatigl~ of Rights of Declarant ..................................... -24- Amendment ....................................................... -24- No Merger ........................................................ -25- Notices ................ ? .......................................... -25- Perpetuities ........................................................ -26- ~ -26- Inspection of Books nnd Records ....................................... -26- Einm~L3~nmne,~ ................................................ -27- Notice of' Sale. Lense or Acquisition .................................... -27- D.~i. Em~inm ................................................... -27- ~ ......................................................... .27- EX~ImlT "A" .p~ .......................... -29- EXHIBIT "B" Additional Property_ Which May Unilaterally Be Submitted To This Declaration of Protective Covenants. Conditions. Restrictions and Easements by Declarant ........ -30- EXHIBIT "C" Bylaws of Ashton Park Community Association, Inc ............. 31- =iv- DECLARATION OF PROTECTIVE COVENANTS, CONDITIONS, RESTRICTIONS AND EASEMENTS FOR ASHTON PARK THIS DECLARATION is made on the date hereinafter set forth by Georgia Classic Homes, L.L.C., a C-corgia llmltp.~ l~abil~ty company (hereinafter somc~i,~es called WHEREAS, Declarant is thc owner of thc real property described in ~ of this Declaration; and WI-~REAS, Declarant desires to subject the real property described in Exhibit "A'~' hereof to the provisions of this Declaration to create a residential conununity of Slngle-famii~ housing and to provide for the subjecting of oth~ real property to thc provisions of this Declaration; NOW, THEREFORE, Declarant hereby declares that thc real property described in ~xhibit "A" attached hereto and by this reference incorporated herein is hereby subjected to the provisions ofthi~ Declaration and s~ll be held, sold, transferred, conveyed, used, occupied and mortgaged or otherwise encumbered subject to the covenants, conditions, restrictions, easements, assessments and liens, herdnaRer set forth, which are for protecting the value and desirability of and which shall run with tim title to, the real property hereby and hereaRer made subject hereto and shall be binding on all persons having any fight, title or interest in all or any portion of thc real property now and hereafter made subject hereto, their respectlvc heirs, legal representatives, successors, successors-in-title and assigns and shall inure to the benefit of each owner of ail or any portion thereof. The following words, when used in mis Declaration or in any Supplementary Declaratio-, shall have th~ following meanings: 1.1 'Articles of Inca _morafion" means the Articles of Incorporation of Ashton Park Community Association, Inc., filed with tho Georgia Sccretsry of Ststc and incorporated hcrcin by this rcfcrence as may be amcndcd from time to time. 1.2' 'Association" means Ashton Park Community Association, Inc, a Georgia nonprofit corporation, its successon and asai~. 1.3 "l~Elli.t~Jli~!ilt~" or "Board" me, n~ thc appointed or elected body of tho Association, vested with thc authority to manage the affairs of the Association under the Georgia Nonprofit Corporation Code, O.C.G.A. § 14-3-101 et se.q. 1.4 "[I.Ylg~" means the Bylaws of Ashton Park Community Association, Inc., atUchcd to this Declaration as ~ a~d incorporated herein by this reference as m,~y be amended ~Ol~time tO lqmc. 1.5 "~" means any and all real and personal pmpcny, including, without limitation, casements and other interests therei~ ami the facilities and improvements locaed thereon, now or hereaRer ovmcd by the A~sociation for the common use and enjoyment of the Ow~ets. 1.6 "~" refe~ to that cer),in real property described in~ attach~l hereto, a~i such ~a_di~ious thereto as may bc made by Supplementary Declaration as provided herein. 1.7 "C0mmunlty-Wide Standard" means the standard of conduct, maintenance or other activity generally prevailing in the Community. Such standard may be more specifically determined by the Board of Directors of the Association. Such determination, however, must be COlgSistcat with the Commuaity-'~,Vide Sumdard originally established by the Declarant l.g "Declarant" means Georgia Classic Homes, L.L.C., a Georgia limited liability company and its succcssors-in-tiflc and assi~.~, provided in a recorded i,~u-ument, such successor-in-title or assignce is dcsignateA as the "Declarant" hereunder by the prior "Declarant" hereunder; provided, further, upon the effective date of the designation of a successor Declarant, ail rights of the former Dcclarant in and to such status as "Declarant" hereunder shall cea.sc, it being understood · at there shall be only one "Declarant" hereunder at any one point in ~r~¢. 1.9 "Lot" meanu any plot of land within the Community, whether or not improvements are comUucted thereon which constitutes or will const/tut~, after the construction of improvement, a single-family dwelling site as shown on a plat recorded in the land records of the county where the Comm~wdty is located. The ownership of each Lot shall include, and there shall pass with the title to each Lot as an appurtenance thereto, whether or not separately described, all of the fights and interest of an Owner in the Common Property, as herein provided, together with membership in the Association. I. I 0 "~t2t:~g~" means any and all instruments used for the purpose of encumbering real property in the Community as security for the payment or satisfaction of an obligation, including, without limitation, any mortgage, deed to secure debt or deed of Uust. 1.11 "Mortgagee" me~n~ the holder ora Mortgage. 1.12 "/)~ll~ul" means any Person occupying all or any portion of a Lot or other property located within the Community for any per/od of time, regardless ofwhetber such Person is a tenant of the Owner of such property. 1.13 "Owner" means the record owner, whether one or more Persons, of the fee simple title to any Lot located within the Community, excluding, however, any Person holding such interest merely as security for the performance or satisfaction ofany obligation. 1.14 "Person" includes any individual, individual acting in a fidudary capacity, corporation, limited partnership, limited liability company, general partnership, joint stock company, joint venture, association, company, trust or other organi?afion, whether or not reco~ed as separate legal entity. I. 15 "Total Association Vote'"means the votes attributable to the entire membership of the Association (including votes of Declarant) as of the record date for such action, whether or not such members are present or represented at the meeting, if any, where such votes are to be Article 2 Property_ Su~ect To This Declaration 2.1 Property_ Hereby Subjected To This Declaration. The real property which is, by the recording of this Declaration, subject to the covenants, conditions, restrictions and easements hereafter set forth and which, by virtue of the recording of this Declaration, shall be held, transferred, sold, conveyed, used, occupied and encumbered subject to this Declaration is the real property described in Exhibit "A" attached hereto and by thi~ reference made a part hereof. 2.2 Other Property. Ordy the real property described in Exhibit "A" is hereby made subject to this Declaration; provided, however, by one or more Supplementery Declarations, Declarant and the Association have the right, but not the obligation, to subject other real property to thla Declaration, ns hereinafter provided. Article 3 Association Membership and Voting Rights 3.1 Membership. Every Person who is the record owner of a fee or undivided fee interest in any Lot that is subject to this Declaration shall have a membership in the Association. The foregoing is not intended to include Persons who hold an interest merely as security for the performance of an obligation, and the giving of a security interest shall not ten~inate the Owner's membership. No Owner, whether one or more Persons, shall have more than one membership per Lot. Membership ~ be appurtenant to and may not be separated bom ownership cfa Lot. The fights and privileges of membership, including the right to vote and to hold office, may be exercised by a member or the member's spouse, but in no event shall more than one vote bo cast nor office held (except for Declarant) for each Lot owned. 3.2 Voting. Members shall be entitled to one vote for each Lot owned. When more than one Person holds an ownership interest in a Lot, the vote for such Lot shall be exercised ns those Owners themselves determine and advise the Secretary prior to any meeting. Irt the absence of such-advice, the vote attributable to such Lot shall be suspended in the event more than one Person seeks to exercise it. Article 4 Assessments 4.1 Purpose of Assessments. The assessments provided for herein shall be used for the general purposes of promoting the recreation, health, safety, welfare, common benefit, and enjoyment &the Owners and Occupants of Lots, including, without limitation, the maintenance of real and personal property, all as may be more specifically authorized from time to time by the Board of Directors. 42 Creation of the Lien and Personal Obligation for Assessments. Each Owner of a Lot, by acceptance ora deed therefor, whether or not it shall be so expressed in such deed, covenants and agrees to pay to the Association: (a) general assessments; (b) special assessments; and (e) specific assessments. Ail such assessments, together with late charges, interest (at a rate set by the Board of Direetors from time to time, but not to exceed the lesser of the maximum rate permitted by law or eighteen percent (18%) per annum on the principal amount due) and costs of collection, including, without limitation, reasonable attorney's fees actually incurred, shall, ~om the time the sums become due and payable, be a charge on the land and shall be a continuing lien in favor of the Association on the Lot against which each assessment is made. The recording of this Declantion shall constitute record notice of the existence of the lien mad no further recordation of any claim of lien shall be required. Each such assessment, together with such late charge% interest and costs, shill also be the personal obligation of the Person who was the Owner -4- BO0 ':' oftbe Lot at the time the assessment fell due. Each Owner shall be personally liable for the portion of each assessment coming due while the Owner ora Lot, and each grantee of au Owner shall be jointly and severally liable for such portion thereof as may be due and payable at the time of conveyance; provided, however, the liability ora grantee for the unpaid assessments of its grantor shall not apply to any fu'st Mortgagee taking title through foreclesure proceedings or deed in lieu of foreclosure. No Owner may waive or othen~ise exempt such Owner from liability for the assessments provided for herein, including, by way of iliustration, but not limitation, abando~u-c, ant of the Lot. No diminution or abatement of any assessment shall be claimed or allowed by reason of any failure of the Association to take some action or perform some function required to be taken or performed by the Association, the obligation to pay assessments being a separate and independent covenant on the part of each Owner. All payments shall be applied first to costs, then to late charges, then to interest and then to delinquent assessments. 4.3 General Assessments. It shall be the duty of the Board to prepare a budget covering the estimated costs of opemtlng the Association during the coming year. The Board shall cause the budget and the assessments to be levied agaim't each Lot for the following period to be delivered to each member at least thirty (30) days prior to the due date of any general assessment. The budget and the assessment shall become effective unless disapproved at a meeting by a majority of the Total Association Vote and the Declarant. Notwithstanding the foregoing, however, in the event the membership disapproves the proposed budget or the Board fails for any reason to determine the budget for any period, then and until such time as a budget shall have been determined, as provided herein, the budget in effect shall continue. General assessments shall be levied equally on all similarly situated Lots and shall be paid in such manner and on such dates as may be fixed by the Board of Directors, which may include, without limitation, acceleration, upon ten (10) days' written notice for delinquents. Unless otherwise provided by the Board, the assessment shall be paid in one annual installment. General assessments i~clude any sums the Board determines necessary for the continued ownership, operation and malnten;nce of the Common Property, operating expenses of the Association, payment for any items ofbett;~uent and the establishment of reserve funds as the Board shall deem proper. General assessments may include, without llmltation, sums for property taxes, insurance premiums, legal and accounting fees, management fees, charges for utilities, landscape maintenance, expenses and liabilities incurred as provided herein and in the Articles of Incorporation and Bylaws for indenmificatiun of officers and directors and in connection with the enforcement of rights and duties of the Association against Owners and others. 4.4 Special Assessments. The Association may levy a special assessment if approved by two-thirds (213) of the Total Association Vote and the Declarant. Special assessments shall be paid as determined by the Board. The Board may permit a special assessment to be paid in installments extending beyond the fiscal year in which the special assessment is iraposed. 4.5 ~l.~l~tl;~. The Board shall have the power to levy specific assessments as, in its discretion, it shall deem appropriate. Failure of the Board to exercise its authority under this Section shall not be grounds for any action against the Association and shall not constitute a waiver of the Board's right to exercise its authority under this Section in the future with respect to any expenses, including an expense for which the Board hah not previously exercised its authority under this Section. Fines Ievied pursuant to this Declaration and the costs of maintenance performed by the Association for which the Owner is responsible shall be specific assessments. The Board may also specifically assess Owners for the following Association expenses: (a) Expenses of the Association which benefit less than all of the Lots may be specifically assessed equitably among all of the Lots which are benefitted according to the benefit received. (b) Expenses of the Association which benefit all Lots, but which do not provide an equal benefit to all Lots, may be assessed equitably among all Lots according to the benefit received. 4.6 Subordination of Liens to Mortgages. The lien of all assessments authorized herein is hereby made subordinate to the lien of any ~st Mortgage placed on a Lot if, but only if, all assessments and charges with respect to such Lot authorized here~ having a due date on or prior to th~ date of the Mortgage as filed of record have been paid. The lien hereby subordinated is only such lien as relates to assossments and charges authorized hereunder having a due date subsequent to the date such Mortgage is filed of record and prior the satisfaction, cancellation or foreclosure of such Mortgage or the sale or transfer of the Lot pursuant to any proceeding in lieu of foreclosure or the sale of transfer of the Lot pursuant to a sale under power contained in such Mortgage. Such subordination is merely a subordination and shall not relieve the Owner of the Lot of his or her personal obligation to pay all assessments coming due at any time when he or she is the Owner of such Lot; shall not relieve such Lot from the lien provided for herein (except to the extent a subordinated lien is extinguished as a result of such subordination as against a Mortgagee or such Mortgagee's assignee or transferee by foreclosure or by sale under power); and no sale or transfer of such Lot to the Mortgagee or to any other Person pursuant to a decree of foreclosure, or pursuant to any other proceeding in lieu of foreclosure or pursuant to a sale under power, shall relieve any existing or previous Owner of such Lot of any personal obligation or relieve such Lot or the then Owner of such Lot from liability for any assessment authorized hereunder become due after such sale and transfer. 4.7 Remedies of the Association. Any assessments or installments thereof which are not paid when due shall be delinquent. In addition to the lien rights, the personal obligation of the then Owner to pay such assessments shall remain such Owner's personal obligation and shall also pass to such Owner's successors-in-title. Such Owner shall nevertheless remain as fully obligated as before to pay to the Association any and all amounts which such Owner was obligated to pay immediately preceding the transfer;, and such Owner and such successors-in-title shall be jointly and severally liable with respect thereto, notwithstanding any agreement between such Owner and such successors-in-title creating any indemnification of the Owner or any relationship of principal and surety as between themselves. Any assessment or installment thereof delinquent for a period of more than ten (10) days shall incur a late charge in an amount as the Board may fiom time to time determine. Thc Association may cause a notice of delinquency to be given to any Owner who has not paid within ten (I0) days following the due date. In the event that the assessment remains unpaid after six-~y (60) days, the Association may institute suit to collect such mounts and/or to foreclose its lien. Each Owner, by acceptance ora deed vests in the Association the right and power to bring all actions agaln~t such Own~ personally, for the collection of such charges as a debt or to foreclose the lien. The lien provided for in th/s Declaration shall be in favor of the Associa~on and shall be for the benefit of all Owners. The Association shall have the power to bid on the Lot at any foreclosure sale and to acquire, hold, lease, mortgage and convey the same. The Association may also suspend the membership rights oftbe delinquent Owner, including the right to vote, the right of enjoymant in and to the Common Property and recreational facilities and the right to receive and enjoy such servicing and other benefits as may then be provided by the Association. Any such suspension shall not affect such members obligation to pay assessments, due during the period of such suspension and shall not effect the permanent lien on such Lot in favor of the Association. 4.8 Date of Commencement of Assessments. Assessments shall commence when the Board of Directors first determines a budget and levies assessments. The assessments provided for herein shall commence as to a Lot when it has been improved with a dwelling and h~ been conveyed to an owner who intends to occupy the dwelling as a residence, or, if the dwelling is occupied as a residence before such conveyance, the date of such occupancy. 4.9 Capitalization of Association. Upon acquisition of record title to a Lot by the first Owner thereof other than the Declarant or a builder, a contribution shall be made by the purchaser to the working capital of the Association in an amouut equal to Five Hundred and No/100 ($500.00) Dollars. This amount shall be in addition to, not in lieu of, the annual gen%ral assessment and shall not be considered an advance payment of such assessment. This amount shall be disbursed to the Association for use in covering operating expenses and other expenses incurred by the Association pursuant to the terms of this Declaration and the Bylaws. 4.10 Budget Deficits During Declarant Control. For so long as the Declarant has the authority to appoint the directors and officers of the Association, Declarant may: (a) advance funds to the Association sufficient to satis~ the deficit, if any, between the actual operating expenses of the Association (but specifically not including an allocation for capital reserves), and the sum of the annual, special and specific assessments collected by the Association in any fiscal year (such advances shall be evidenced by promissory notes bom the Association in favor of the Declarant); or (b) cause the Association to borrow such amount fi'om a commercial lending institution at the then prevailing rates for similar loans in the local area of the Community. No Mortgage secured by the Common Property or any of the improvements maintaflaed by the Association shall be given in connection with such loan. -7- 4.11 ~~g~C. The Association shall, within five (5) days after receiving a written request therefor and for a rea$onsblc charge, as established by the Board, ceftin/to the amount of any unpaid assessments constituting a lien on a specified Lot. A certification letter signed by an officer of the Association or the Association's managing agent, if any, as to thc amount of assessments duc with respect to a Lot shall be binding upon the Association. Article 5 Maintenance: Conveyance of Common Property_ to Association 5.1 Association's Responslbili _ry. The Association shall maimain and ke~p ~ good repair the Common Property. This maintenance shall include, without limitation, maintenance, repair and replacement of all I,-,dscaping and improvements situated on the Common Property. The Association shall also maintain (whether or not constituting Common Property): (a) all private Comm~lllity streets, roads, drives, driveways serving two or more Lots, alleys, paths and sidewalks, whether or not constituting Common Property or located on a Lot; (b) all Community slreet signs; (c) all Community eniry features; (d) Communily landscaping originally installed by the Declarant, whether or not such landscaping is on a Lot, Common Property or public right-of-way; (e) all storm water drainage facilities serving the Community, if and to the extent such facilities are not maintained by a public body; (f) all property outside of Lots which was origihally maLqtained by Declarant; and (g) all Comm.nity recreational facilities, if any. In addition, thc Associalion shall have the fight, but not :he obligation, to maintain other property not owned by the Association, whether withl, or without the Commtlllity and to enter into casements and covenant to shere cosis agreements regarding such property where thc Board has determined that such action would benefit thc Owners. In the event that the Association dctcrmincs that thc need for roaintcnanc~, repair, or replacement, which is thc responsibility of the Association hereunder, is caused through the willful or negligent act of an Owner, or the Ckcupan~s, family, guests, lessees or invitees of an Owner, then the Association may pe, rform such maintenance, repair or replacement and all costs :hereof, not paid for by insurance, shall be assessed against the Owner as a specific assessmcnt. All maintenance by thc Association shall be performed consistent with the Community-Wide Sts-dard. Thc Association will be responsible for mowing all the lawns, on all thc lots in the subdivision, simultaneously with the common grounds being mowed. Thc association will also clean the gutters twice a year on each house in thc subdivision. 5.2 Owner's Re _sponslhill _ty. Except for maintenance performed on a Lot by the Association pursuant to Section 5.1, if any, all maintenance of the Lot and all structures, landscaping, and other improvements thereon shall be the sole responsibility of the Owner thereof, who shall maintain such Lot in a manner consistent with the Community-Wide Stan,t,,xt and this Declaration. In the event that the Board of D/~ectors determines that any Owner hes failed or refused to discharge properly any of such Owner's obligations with regard to the maintenance, repair or replacement of items for which such Owner is responsible hereunder, the -8- Association shall, except in an emergency situation, give the Owner written notice of the Association's intent to provide such necessary maintenance, repair or replacement al the Ovmer's sole cost and expense. The notice shall set forth with reasonable particularity the maintenance, repair or replacement deemed necessary. The Ovmer shall have ten days after receipt of such notice within which to complete such maintenance, repair or replacement, or, in the event that such maintenance, repair or replacement is not capable of completion within a ten-day period, to commence such work which shall be completed within a reasonable time. If any Owner does not comply with the provisions hereof; the Association may provide any such maintenance, repair or replacement and all costs thereof shall be assessed against the Owner and the Lot as a specific assessment. 5.3 Conveyance of Common Property by Declarant to Assoeiagon. The Declarant may transfer or convey to the Association at any time and from time to time any personal property and any interest in improved or unimproved real property. Such conveyance shall be deemed to be accepted by the Association upon delivery of any personal property or upon recordation of an instrument of conveyance of any interest in real property, and the property shall thereafter be Common Property to be used and maintained by the Association for the benefit oflts members. The Declarant .~hall not be required to make any improvements whatsoever to property to be conveyed and accepted pursuant to this Section. 5.4 Partition. The Common Property shall remain undivided and no Owner shall bring any action for partition or division of the whole or any part thereof without the written consent of all Owners of all portions of the property located within the Community and without the written consent of all holders of all Mortgages encumbering any portion of the property, including, but not limited to, the Lots locoted within the Commtmity. Article 6 Architectural Standards and Use Restried0ns 6.1 Rules and Re_~,ulations. The Board of Directors may, from time to time, without a vote of the members, promulgate, modify or delete rules and regulations applicable to the Community. Such rules and regulations shall be distributed to all Owners prior to the date that they are to become effective and shall thereafter be binding upon ali Owners and Occupants until and unless overruled, canceled or modified by a majority of the Total Association Vote and the consent of Declarant. 6,2 Residential Use. Each Lot shall be used for residential purposes exclusively. Leasing cfa Lot for residential occupancy shall not be considered a business or business activity. No trade or business of any kind may be conducted in or from a Lot, except that the Owner or Occupant residing in the residence on a Lot may conduct business activities within the residence so long as the business activity: (a) does not otherwise violate the provisions of the Declaration or Bylaws; (b) is not apparent or detectable by sight, sound or smell from the exterior of the Lot; (c) does not unduly increase truffle flow or parking congestion; (d) co~forms to all zoning requirements for the Community; (e) does not increase the insurance premium paid by the Association or otherwise negatively affect the ability of the Association to obtain insurance coverage; (f) is consistent with the residential character of the Community; (g) does not constitute a nuisance or a ha?ardous or offensive use; and (Ia) does not threaten the security or safety of other residents of the Community, all as may be determined in each case in the sole discretion oftbe Board of Directors. Tim Board may issue rules regardi-g permitted business activities. The terms "business" and "trade", as used in this provision, shall be construed to have their ordinary, generally accepted me~.~hgs 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 f~mily and for wMch the provider receives a fee, compensation, or other form of cousideratlon, regardless of whether: (I) the activity is engaged in full or part-time; (ii) the activity is intended to or does generate a profit; or (iii) a license is required for the activity. 6.3 Architectural Standards. No exterior construction, alteration, addition, or erection of any improvements of'any nature whatsoever, including, without limitation, a change in the color of any improvement, shall be commenced or placed upon any part of the Community, except such as is installed by the Declarant, or as is approved in accordance with this Section, or as is otherwise expressly permitted herein. No exterior construction, addition, erection, or alteration shall be made unless and until pJ~s and specifications showing at least the nature, kind, shape, height, materials, and location shall have been submitted in writing to and approved by an Architectural Review Board established by Declarant. The Architectural Review Board may employ architects, engineers, or other Persons as it deems necessary to enable the Architectural Review Board to perform its review. The Architectural Review Board shall adopt design and development guidelines and application and review procedures which shall be set forth in the architectural guidelines. Copies of the architectural guidelines shall be available from the Architectural Review Board for review. The Architectural Review Board shall have sole and full authority to prepare and to ,mend the architectural guidelines. The Architectural Review Board shall make the architectural guidelines available to Owners, builders and developers who seek to engage in development of or construction upon all or any portion of the Community and such Owners, builders and developers shall conduct their operations strictly in accordance therewith. The Declarant shall have the right to appoint all members of the Architectural Review Board. There shall be no surrender of this right except in a written instrument in recordable form executed by Declarant and recorded in the land records of the Clerk of the Superior Court of Fayette County, Georgia. After the termi,ation of the Declarant's right to appoint the members, the Board of Directors shall appoint the members of the Architectural Review Board, If thc Architectural Review Board fails to approve or to disapprove submitted plans and specifications within thlr~ (30) business days after the plan.~ and specifications have been submitted to it, such approval shall be deemed to have been given, but as to any such approval the Owner and the Owners's heirs, successors and assigns shall be bound by and shall comply with all other provisions of this Declaration. As a condition of approval under this Section, each Owner, on behalf of such Owner and such Owner's successors-in-interest, shall assume all responsibilities for maintenance, repair, replacement, and insurance to and on any change, modification, addition, or alteration. In the discretion of the Architectural Review Board, an Owner may be made to verify such condition of approval by a recordable written instrument acknowledged by such Owner on behalf o£ such Owner and such Owner's successors-in-interest. The Arol~tectuml Review Board shall be the sole arbiter of such plans and may withhold approval for any reason, including purely aesthetic considerations, and it shall be entitled to stop any con. tv,etlon in violation of these restrictions. Any member of the Arohitectural Review Board or its representatives shall have the Hght, during reasonable hours and after reasonable notice, to enter upon any property in the Community to inspect for the purpose of ascertaining whether or not these restrictive covenants have been or are being complied with. Such person or persons shall not be deemed guilty of trespass by reason of such en~y. In addition to any other remcdics available to thc Architectural Review Board, in the event of noncompliance with this Section, the Architectural Review Board may record in the appropriate land records a notice of violation hereunder naming the violating Owner. Plans and specifications are not approved for engineering or structural design or quality of materials, and by approving such plans and specifications neither the Architectural Review Board, the member(s) thereof, the Association, nor the Declarant assumes liability or responsibility therefor, nor for any defect in any structure constructed from such plans and specifications. Neither Declarant, the Association, the Architectural Review Board, the Board, nor the officers, directors, members, employees, and agents of any of them shall be liable for damages to anyone submitting plans and specifications for approval, or to any owner of property affected by these restrictions by reason of mistake in judgment, negligence, or nonfeasance arising out of or in connection with the approval or disapproval or failure to approve or disapprove any such plan~ or specifications. Every Person who submits plans or specifications and every Owner agrees that such Person or Owner will not bring any action or suit against Declarant, the Association, the Architectural Review Board, the Board, or the officers, directors, members, employees, and agents of any of them to recover any such damages and hereby releases, remises, quitclaims, and covenants not to sue for all claims, demands, and causes of action arising out of or in connection with any judgment, negligence, or nonfeasance and hereby waives the provisions of any law which provides that a general release does not extend to claims, demands, and causes of action not known at the time the release is given. The approval of the AmMtectural Review Board of any proposals or plans and specifications or drawings for any work done or proposed, or in connection with any other matter requiring approval or consent of the Architectural Review Board, shall not be deemed to constitute a waiver of any right to withhold approval or consent as to any similar proposals, plans and specifications, or drawings, or matters whatever subsequently or additionally submitted for approval or consent. Notwithstanding anything to the contrary contained herein, the Architectural Review Board shall be authorized to grant individual variances from any of the provisions of this Declaration, the Bylaws, the architectural guideiines and any vale, regulation or use resection promulgated pursuaut thereto if it determines that waiver of application or enforcement of the provision in a particular case is dictated by unique circumstances, such as, but not limited to, topography, natural obstructions or hardship, or required by aesthetic or environmental considerations and would not be inconsistent with the overall scheme of development for the -11- Community. No variance shall (a) be effective unless in writing, (b) be inconsistent with the overall scheme of development for the Community, or (c) estop the Architectural Review Board from denying a variance ia other similar circumstances. For purposes of this provision, the inability to obt~i~ approval of any governmental agency or the issuance of any permit, or the terms of any financing shall not be considered a hardship warranting a variance. 6.4 Signs. No sign of any kind shall be erected by an Owner or Occupant within the Community without the prior written consent of the Declarant or the Amhitectuml Review Board. Notwithstanding the foregoing, the Board and the Declarant shall have the Hght to erect reasonable and appropriat~ signs. "For Sale" signs and security signs consistent with the Community-Wide Standard and any sims required by legal proceedings may be erected upon any Lot. The provisions of this Section shall not apply to any Mortgagee ia possession due to foreclosure of a fa'st Mortgage or as grantee pursuant to any deed in lieu of such foreclosure. 6.5 _'K~l~J~P~rkklg. Vehicles shall be parked only in appropriate parking spaces serving the Lot or other designated areas, if any. All parking shall be subject to such rules and regulations as the Board may adopt. The term "vehicles," as used herein, shn!! include, without limitation, motor homes, boats, trailers, motorcycles, minibikes, scooters, go-carts, golf carts, trucks, c~mpers, buses, vans and automobiles. The term "parking areas" shall refer to the number of garnge parking spaces and the spaces located in the driveway of each Lot. Ail homes shall contain a garage; carports shall not be permitted. Garage doors should be kept closed at all times, except during t~mes ofiagress and egress from the garage. No vehicle may be left upon any portion of the Community, except in a garage or other area designated by the Board, for a pe. riod longer than five days [fit is unlicensed or if it is in a cond/tion such that it is incapable of being operated upon the public highways. After such five-day period, such vehicle shall be considered a nuisance and may be removed from the Community by the Board of Directors. Any towed vehicle, boat, recreational vehicle, motor home, trailer, motorcycle, minibike, scooter, go-cart, goffcart' commercial truck, camper, bus or mobile home regularly stored in the Comm,nlty or temporarily kept in the Comrn~l~lty, except if kept in a garage or other area designated by the Board, for periods longer than 24 hours each shall be considered a nuisance and may be removed from the Community by the Board of DJ. rectors. Trucks with mounted campers which are used as a primary me~n~ of transportation shall not be considered recreational vehicles, pwvided they am used on a regular basis for trnn~portation and the camper is stored out of public view upon removal. 6.6 ~. Lots may be leased for residential purposes. Unless otherwise provided by the Board of Directors, all leases sh~!! have a minimum term of at least six months. All leases shall require, without limitation, that the Occupants acknowledge receipt ora copy of the Declaration, Bylaws, use restrictions and rules and regtflations of the Association. The lease shall also obligate the Occupants to comply with the. foregoing. 6.7 ~fl~l~P.~. No animals, livestock or poultry of any kind may be raised, bred, kept or permitted on any Lot, with the exception of dogs, cats or other usual and common household pets in reasonable number as determined by the Board. No pets shall be kept, bred or maintained for any commercial purpose. No exterior pens for household pets shall be erected or maintained on any Lot without the prior written consent of the Architectural Review Board. 6.8 Nuisance. It shall bc the responsibility of each Owner and Occupant to prevent the development of any unclean, unhealthy, un.~ightiy or unkempt condition on a Lot. No property within the Community shall be used, in whole or in part, for the storage of any property or thing that will cause such Lot to appear to be in an unclean or untidy condition or that will be obnoxious to the eye; nor shall any substance, th~ng 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, safely, comfort or serenity of the occupants of surrounding property. No noxious or offensive activity shall be carried on within the Community, nor shall anything be done tending to cause embarrassment, discomfort, ~nnoyance or nuisance to any Person using any properly within the Community. No plants, animals, device or thing of any sort shall be roa|nt~ined in the Community whose activities or existence is in any way noxious, dangerous, unsightly, unpleasant or of a nature as may diminish or destroy the enjoyment of the Community by other Owners and Occupants. Without ]imlting the generality of the foregoing, no speaker, horn, whistle, siren, bell, amplifier or other sound device, except such devices as may be used exclusively for security purposes, shall be located, installed or maintained upon the exterior of any Lot. 6.9 Unsightly or Unkempt Conditions. Thc pursuit of hobbies or other activities, including specifically, without limiting the generality of the foregoing, the assembly and disassembly of motor vehicles and other mechanical devices, which might tend to cause disorderly, u,~ightiy or unkempt conditions, shall not be pursued or undertaken in any part of the Community. 6,10 Antennas. No exterior antennas, receiving dishes or similar apparatus of any ki~d for receiving or transmitting of radio or television signals shall be placed, allowed or maintained upon any portion of the Com~.nky, including any Lot, without thc prior written consent of the Architectural Review Board; provided, however, the Architecture Review Committee shall approve one television satellite receiving dish not larger than 24 inches in diameter which blends with the roof color and is installed on the roof of the msl- dwelling so as not to be visible fi.om the sireet in front of the Lot. 6.11 Tree Removal. No trees that are more than four inches in diameter at a point 12 inches above the ground shall bo removed without the prior written consent of the Architectural Review Board. However, no ornamental or flowering trees, including, but not limited to, dogwood trees, cottonwood ttecs, cherry Ixees or apple trees, regardless of diameter, shall be removed without the prior written consent of the Architectural Review Board. Owners shall also comply with any local ordinance applicable to tree removal. In the event ora conflict between the provisions of this Section and any local ordinance, the more restrictive provision sh~l govern. This provision shall not apply to the Declarant. -13- 6. I2 P_m__iaa~. Drainage easement areas and associated facilities are for the pttrpose of controlling the natural flow of water only. No obstructions or debris shall be placed in these areas. No Owner may obstruct or alter the drainage flows after location and installation of drainage swales, storm sewers or storm dr~n.~ without the prior written consent olethe Architectural Review Board. 6.13 Sight Distance at Intersections. All property located at street intersections shall be landscaped so as to permit safe sight across the street comers. No fence, wall, hedge, shrub or other planting or thing shall be placed or permitted to remain where, in the opinion of the Board, it would create an un~fe eondition~ 6.14 Garbage Cans. Woodpiles, Etc. All garbage cans, woodpiles, swimming pool pumps, filters and related equipment, and other similar items shall be located or screened so as to be concealed fi-om view from neighboring streets and property. All rubbish, tr~h and garbage shall be regularly removed and shall not be allowed to accumulate. 6.15 ~li.~LI~. No Lot shall be subdivided or its boundary lines changed except with the prior written approval of the Architectural Review Board. Declarant, however, hereby expressly reserves the right to subdivide and/or revise and re-record the subdivision plat ofa~y Lot(s) with the consent of the Owner of the effected Lot(s) and to approve the revision and re-recording of any plat of any Lot(s) owned by any builder or developer, including, but not limlted to, changing any Lot to Common Property or creating a public or private sheet over any Lot or property that was formerly a Lot, without the consent of any Person, other than the Owner(s) of such Lot(s). 6.16 Fences. No fence or fencing type barrier of any kind sh~II be placed, erected, allowed or maintained upon any Lot without the prior written consent of the Architectural Review Board. Any fence placed, erected, allowed or maln~ined upon any Lot closer to the s~reet than the front of the residence located on the Lot must be approved by the Architectural Review Board. The Architectural Review Board may issue guidelines detailing acceptable fence styles or specifications. The Declarant and the Association may erect any type offence on the Common Property or elsewhere within the Community as may be deemed appropriate by the Board of Directors or as necessary to satisfy the requirements of any law, regulation or government entity or for health and safety of residents. 6.17 ' ilJ. Illi..~I,i~. Except as may be permitted by the Declarant or the Architectural Review Board, no overhead utility lines, including lines for cable television, shall be permitted within the Comm,mlty. 6. I8 Air-Conditioning Units. No window air conditioning units may be installed. 6.19 Lighting. Exterior lighting on any Lot visible fi-om the street shall not be permitted, except for: (a) approved lighting as originally in.~,alled on a Lot; (b) one decorative post light; (c) street lights in conformity with an established street lighting program for the Commurdty; (d) seasonal decorative lights; (e) 15ont honse illumination of model homes; or (f) other lighting approved by the Architectural Review Board. 6.20 Artificial Ve_~etation. Exterior Sculpture. and Similar Items. No artificial vegetation shall be permitted on the exterior of any property. Exterior sculpture, fountains, flags and similar items must be approved by the Architectural Review Board. 6.21 Energy Conservation Equipment. No solar energy collector panels or attendant hardware or other energy conservation equipment shall be constructed or installed unless as an inte~l and harmonious part of the architectural design ora structure, as determined in the sole discretion of the Architectural Review Board. 6.22 fl~timlIlillgll~. No swimming pool shall be constructed, erected or maintained upon any Lot without the prior written consent of the Architectural Review Board and in no event shall any above-ground swimming pool be permitted. 6.23 Gardens. Play Equipment and Pools. No vegetable garden, hammock, sdlltuary, play equipment (inelucllng, without limitation, basketball goals) or pool to be erected on any Lot may be located other than between the rear dwelling line and the rear lot line, without the prior written consent of the Architectural Review Board. 6.24 Mailboxes. All mailboxes serving Lots shall be approved by the Architectural Review Board. Identical replacement mailboxes may be installed without further approval; but no modification to or change in mailboxes may be made without the approval in writing office Architectural Review Board. 6.25 ~. No exterior clotheslines of any type shall be permitted upon any Lot. 6.26 Entry_ Features. Owners shall not alter, remove or add improvements to any entry features constructed by the Declarant on any Lot, or any part of any easement area associated therewith without the prior written consent of the Architectural Review Board. 6.27 ~d~gllIg~[om. All vehicular traffic on the private streets and roads in the Community shall be subject to the provisions of the state and local laws concerning operation of motor vehicles on public streets. The Association is hereby authorized to promulgate, administer, and enforce reasonable roles and regulations governing vehicular and pedestrian traffic, including reasonable safety measures and speed limits and including modifications of those in force on public streets, within the Community. The Association shall be entitled to enforce same by establishing such enforcement procedures as it deems appropriate, including levying fines for the violation thereof. In the event of a conflict between such provisions of state and local laws and such rules and regulations promulgated by the Association, the roles and regulations of the Association shall govern. Only drivers properly licensed to operate -15- motor vehicles on ~be publk roads within the State of Georgia may operate any type of motor vehicle within the Community. All vehicles of any kind and nature which are operated on the streets in the Community sh~]l be operated in a careful, prudent, safe, and quiet manner and with due consideration for the rights of all Owners and Occupants. Article 7 Insurance and Casual _fy Losr~ 7.1 Insurance on Common Property. The Association shall obtain insurance coverage, if and to the extent neeessa~ to satisfy the requirements of the Federal Home Loan Mortgage Corporation, the Federal National Mortgage Association, the U.S. Depa~haent of Veterans Affairs, and the U.S. Department of Housing and Urban Development, as applicable to the Community. Accordingly, the Board of Directors shall obtain casualty insurance for all insurable improvements, whether or not located on the Common Property, which the Association is obligated to maintain. This insurance shall provide, at a rni~imum, fire and extended coverage and shall be in an amount sufficient to cover the full replacement cost of any repair or reconstruction in the event of damage or destruction from any such hazard. The Board of Directors shall obtain a public liability policy applicable to the Common Property covering the Assqciation and its members for all damage or injury caused by the negliganee of the Assueiation or any of its members or agents, and, if reasonably available, directors' and officers' liability insurance. The public liability policy shall have a combined single limit of at least One Million ($1,000,000.00) Dollars. Policies may contain a reasonable deductible as determined by the Board of Directors. In addition to the other insurance required by this Section, the Board of Directors shall obtain worker's compensation insurance, if and to the extent necessary to satisfy the requirements of applicable laws, and a fidelity bond or bonds on directors, officers, employees and other persons handling or responsible for the Association's funds, if reasonably available. If obtalned, the amount of fidelity coverage shall be determined in the directors' best business judgment, and, if available, shall at least equal three months' total assessments plus reserves on hand. Fidelity coverage shall contain a waiver of all defenses based upon the exclusion of persons serving without compensation and may not be canceled, not renewed or substantially modified without at least tifirty days' prior written notice to the Association. Ali such insurance coverage shall be written in the name of the Association. 7.2 ~. By virtue of taking tide to a Lot subject to the terms oft}ds Declaration, each Owner acknowledges that the Association has no obligation to provide any insurance for any portion of individual Lots and each Owner covenants and agrees with all other Owners and with the Association that each Owner shall carry all-risk casualty insurance on the Lot and all structures constructed thereon and a liability policy covering damage or injury o~urring on a Lot. The casualty insurance shall cover loss or damage by fLre and other b,yards COmmonly insured under an "all-risk" policy, if reasonably available and shall be in an amount sufficiem to cover the full replacement cost of any repair or reconstruction in the event of damage or destruction from any such hay~rd. The policies required hereunder shall be in effect at all times. 7.3 Damage and Destruction-- Insured by Association. Immediately after damage or deslruction by fire or other casualty to any portion ofany improvement covered by insurance written in the name of the Association, the Board of Directors or its duly authorized agent shall proceed with the filing and adjuslrnent of ail claims arising under such insurance and obtain reliable and detailed estimates of the cost of repair or reconstruction of the damaged or destroyed property. Repair or reconstruction, as used in this Section, means repairing or restoring the propen'y to substantially the same condition and location tha~ existed prior to the fire or other casualty, allowing for any changes or improvements necessitaed by changes in applicable building codes. Auy damage or destruction to propmy covered by insurance written in the name of the Association shall be repaired or reconstructed unless, within fi0 days after the casualty, a proposal not to repair or reconstruct such property is approved by at least 75% of the Tolal Association Vote and the Declarant. Iffer any reason either the amount of the insurance proceeds to be paid as a result of such damage or destruction, or reliable and detailed estimates of the cost of repair or reeomi, uction, or both, are not made available to the Association width such period, then the period shall be extended until such information shall be made available; provided, however, such extension shall not exceed 60 days. If the damage or destruction for which the insurance proceeds are paid is to be repaired or reconstructed and such proceeds are not sufficient to defray the cost thereof, the Board of Directors shall, without the necessity of a vote of the members of the Association, levy a special assessment against the Owner o£eaeh Lot. Additional assessments may be made in like manner, as necessary, at any time during or following the completion of any repair or reconstruction. If the funds available from insur~ce exceed the costs of repair or reconstruction or if the improvements are not repaired or reconstructed, such excess shall be deposited to the benefit of the Association. In the event that it should be determined by the Association in the m~,ner described above that the damage or deslruction shall not be repaired or reconslrueted and no alternative improvements are authorized, the property shall thereafter be maintained by the Association in a neat mad attractive condition. 7.4 Damage and Destruction -- Insured by Owller,~. The damage or destruction by fire or other casualty to all or any portion of uny improvement on a Lot shall be repaired by the Owner thereof wititin 75 days after such damage or destruction or, where repairs cannot be completed within 75 days, they shall be commenced within such period and shall be completed within a reasonable time thereafter. Alternatively, the Owner may elect to demolish all improvements on the Lot and remove ail debris therefrom within 75 days after such damage or destruction. Article 8 Condemnation In the event of a ~aking by eminent domain of any portion of the Common Property on which iml0,ovements have been constructed, the Association shall restore or replace such improvements so iaken on the remaining Common Property, unless within 60 days after such Ufldng, an alternative plan is approved by at least 7:5% of the Total Association Vote and the consent of Declarant. The provisions hereof applicable to Common Property improvements -17- damage, shall govern replacement or restoration and the actions to be taken in the event that the improvements are not restored or replaced. Article 9 Annexation of Additional Property 9.1 Unilateral Annexation Bv Declarant. As the owner thereof or, it'not the owner, with the consent of the owner thereof; Declarant shall have the unilateral fight, privilege and option from time to time and at any time until seven years after the recording of this Declaration to subject all or any portion of the real property described in ~ attached hereto and by this reference incorporated herein, to the provisions of th/s Declaration and the jurisdiction of the Association by filing for record in the county in which the property to be annexed is located a Supplementary Declaration describing the property being subjected.. 9.2 ~!l~2~ull~I~. Upon the written consent of.' (a) the owner(s) thereof; ~) the Declarant; and (c) the Owners of at least two-thirds of the Lots, the Association may mmcx real property to the provisions of this Declaration and the jurisdiction of the Association by filing for record in the county in which the property to be annexed is located a Supplementary Declaration describing the property being annexed. Any such Supplementary Declaration shall be signed by the o'~vner of the property being annexed and the President oftbe Association whose signature shall be attested by the Secretary of the Association and any such annexation shall be effective only upon the filing for record of such Supplementary Declaration, unless a later effective date is provided therein. Article I 0 10.1 NQtices of Action. Aa institutional holder, insurer, or guarantor ora first Mortgage, who provides a written request to the Association (such request to state the name and address of such holder, insurer, or guarantor and the Lot number, therefore becoming aa "eligible holder"), will be entitled to timely written notice off (a) any condemnation loss or any casualty loss which affects a material portion of the Community or which affects any Lot on which there is a first Mortgage held, insured, or guaranteed by such eligible holder; (b) any delinquency in the payment of assessments or charges owed by an Owner of a Lot subject to the Mortgage of such eligible holder, where such delinquency hat continued for a period of sixty (60) days; provided, however, notwithstanding this provision, any holder ora first Mortgage, upon request, is entitled to written notice from the Association of any default in the performance by the Owner of the encumbered Lot of any obligation under the Declaration or Bylaws of the Association which is not cured within sixty (60) days; and BOOK 7 G _![ PAGE (e) any lapse, cancellation, or material modification of any insurance policy maintained by the Association. I0.2 No PrioriW. No provision of this Declaration or the Bylaws gives any Owner or other party priority over any rights ora Mortgagee ofauy Lot in thc case of distribution to such Owner of insurance proceeds or condemuation awards for losses to or a taking of the Common Property. 10.3 Notice to Association. Upon request, each Lot Owner shall be obligated to furnish to the Association the name and address of the holder of any Mortgage encumbering such Owners Lot. Article 11 Easements 11.1 Easements for Use and ]~r~Qvrnent. (a) Every Owner ora Lot shall have a right and easement of ingress and egress, use and enjoyment in and to the Common Property which shall be appurtenant to and shall pass with the title to each Lot, subject to the following provisions: (I) the fight of the Association to charge reasonable admission and other fees for the use of any portion of the Common Property, to limit the number of Persons who may use the Common Property, and to provide for the exclusive use and enjoyment of specific portions thereof at certain designated times by authorized users and their guests and invitees; (ii) the right of the Association to suspend the voting rights of a Lot Owner and the right of an Owner to use the Community recreational facilities, if any, for any period during which any past due assessment agaln~ any Lot of the Owner remains unpaid; and, for a reasonable period of time for an infraction of the Declaration, Bylaws or roles and regtflations; (iii) the right of the Association to borrow money for the purpose of improving the Common Property, or any portion thereof, or for construction, repairing or improving any facilities located or to be located thereon and, upon the affirmative vote of the Owners of at least two-thirds of the Lots (other than Declarant) and the consent of Declarant, to give as security for the payment of any such loan a Mortgage conveying all or any portion o£the Common Property; (iv) the right of the Association to dedicate or grant licenses, permits, easements or rights-of-way over, under and through the Common Property to government entities, any quasi- governmental agency or to any utility company or cable television company; -19- (v) the fight of the Association to dedicate or transfer all or any portion of the Common Property upon the approval of the Owners of at feast two-thirds of the Lots (other than Declarant) and the Declarant; (vi) all other rights of the Association, the Declarant, Owners and Occupants set forth in this Declaration or in any deed conveyLug common property to the Association; and (vii) all encumbrances and other matters shown by the applicable public records affecting the Common Property. (5) Any Owner shall be deemed to have made a delegation of such Owners right of use and enjoyment in and to the Common Property and facilities located thereon to the Occupants of such Owner's Lot, and their respective licensees and guests. 11.2 Easements of Encroachment and Ma/ntenance. There shall be reciprocal appurtenant easements of encroachment, and for maintenance and use of any l~c~uitted encroachment, between each Lot and any adjacent Common Property and between adjacent Lots due to thc unintentional placement or settling or shiftin8 of the knprovements constructed, reconstructed, or altered thereon (in accordance with the terms ofth/s Declaration) to a distance of n~t more than three feet, ~s measured bom any point on thc common boundary ~long a 1/ne perpendicul~r to such boundary. However, in no event shall an casement for encroachment exist if such encroachment occurred due to willful and knowing conduct on the part of, or with the knowledge and consent of, an Owner, occupant, or the Association. 11.3 Intentionally left blank. 11.4 ]~asements for Utilities. Declarant hereby reserves for th~ benefit of Declarant and grants to the Association, a nonexclusive, transferable, and perpetual easement upon, across, above and under all property within thc Community for access, ingress, egress, installation, alteration, repairing, replacing, and maintaining all utilities serving the Community or any portion thereof, including, but not limited to, gas, water, sanitary sewer, telephone and electricity, BOOK as well as storm drainage and any other service such as, but not limited to, a master television antenna system, cable television system, or security system which the Declarant or the Association might decide to have installed to serve the Community, including, without limitation, such easements as may be shown on the recorded subdivision plats for the Community. Declarant and the Association may alter drainage and water flow, install, repair, replace and maintsdn or authorize the installation, repairing, replacing and maintaining of such wires, conduits, cables and other equipment related to the providing of any utility or service. Should any Person furnishing any such utility or service request a specific license or easement by separate recordahle document, the Declarant, or the Board of Directors, with the written consent of the Declarant, shall have the fight to grant such easements without a vote of the Owners. 11,5 Easement for Emergency Entry.. The Association shall have the right, but not the obligation, to enter upon any Lot for emergency, security and safety reasons and to inspect for the purpose of ensuring compliance with this Declaration, any Supplemental Declaration, Bylaws, and rules, which right may be exercised by any member of the Board, the officers, agents, employees, and managers of the Association and ali policemen, firemen, ambulance personnel, and similar emergency personnel in the performance of their respective duties. Except in an emergency situation, entry shall only be during reasonable hours and after notice to the Owner. This right of entry shall include the right of the Association to enter upon any Lot to cure any condition which may increase the possibility cfa fire, slope erosion or other hazard in an emergency situation and in the event an Owner fails or refuses to cure the condition within a reasonable time after requested by the Association, but shall not authorize entry into any single family detached dwelling without permission of'the Owner. 11.6 Easement for Maintenance. Declarant hereby grants to the Association a perpetual easement across the exterior portions of all Lots as may be reasonably necessary for the performance of the maintenance obligations of the Association required herein. Such maintenance shall be performed with a minimum of interference to the quiet enjoyment to LOts, reasonable steps shall be taken to protect such property and damage shall be repaired by the Association or its contractors at their sole expense. 11.7 Easement for EnUy Features and Streetscape~. There is hereby reserved to the Declarant and granted to the Association an easement for ingress, egress, installation, construction landscaping and maintenance of entry features and similar streetscapes for the Community, over and upon any portion cfa Lot containing such entry features or streetseapes as may be more fully described on the recorded subdivision plats for the community. The easement and fight herein reserved shall include the right to cut, remove and plant trees, shrubbery, flowers and other vegetation around entry features and streetseapes and the right to grade the land under and around the same. 11.8 Easement for Drainage. There is hereby reserved to the Declarant and granted to the Association an easement for creating and maintaining satisfactory drainage across Lots in the Community, over and across an area five feet wide along each side Lot line and ten feet wide -21- along each rear Lot line; provided however such easement area shall not include any portion cfa Lot upon which thc foundation cfa dwelling is located. 11.9 EesementDurin_~ Construction and Sale Period. Notwithstanding any pmvlsious now or hereafter contained in this Declaration, the Bylaws, Articles of Incorporatlon, use restrictions, rules and regulations, architectural guidelines, and amendments thereto, Declarant reserves an easement across the Community for Declarant and any builder approved by Declarant to maintain and carry on, upon such portion of the Community as Declarant rn~y reasonably deem necessary, such facilities and activitie~ as in the sole opinion of Declarant may be requized or convenient for Declarant's and such builder's development, cons~ction and sales activities related to property hereby and hereafter subjected to this Declaration or nearby property being developed by Declarant or such builders, including, but not limited to: the right of access, ingress and egress for vehicular and pedestrian traffic and construction activities over, under, on or in the Community, inclu/ing, without limitation, any Lot; the fight to tie into any portion of the Community with s~eets, driveways, paths, parking areas and walkways; the right to tie into and/or otherwise connect and use (without a tap-on or any other fee for so doing), replace, relocate, maintain and repair any device which provides utility or similar services including, without limitation, electrical, telephone, cable television, natural gas, water, sewer and drainage lines and facilities constructed or installed in, on, under m~l/or over the Community; the right to grant easements over, under, in or on the Community, including without limitation the Lo~s, for the benefit of neighboring properties for the purpose of tying into and/or otherwise connecting and using sewer and drainage lines and facilities constructed or installed in, on, under and/or over the Community; the right ~o convert Lots (with the consent of the Owner thereof) to Common Property ~nd/or streets; the right to construct recreational facilities, utilities and other improvements on Common Property; the right to carry on sales and promotional activities in the Comm,nlty; and the right to construct and operate business of~ces, signs, construction trailers, model residences and sales offices. Declarant and any such builder may use residences, of~ces or other buildings owned or leased by Declarant or such builder as model residences and sales offices and may also use Comm~mlty recreational facilities as a sales office without ebro'ge. This Section shall not be amended without the Declarant's written consent until the Declarant's fights hereunder have terminated as hereinabove provided. 11.I0 F~asement for Sidewalks and Si_~ns. Declarant hereby reserves for the benefit of Declarant and gr~nts to the Association, a perpetual nonexelusive right and easement upon, over and across those skips of land ten (10) feet in width located along and adjacent to those exterior boundaries of Lots located adjacent to streets and roads, such strips to be bounded by such exterior houndar/as adjacent to streets and roads and by lines in the interior of such Lots which are ten (10) feet from and parallel to gueh exterior bonndaries, for the installation, maintenance, and use of such streets and roads, sidewalks, ~'affic directional si~n.% grading for proper drainage of said streets and roads, and related activities and improvements. Article 12 12.1 Enforcement. Each Owner and Occupant shall comply strictly with the Bylaws, rules and regulations and use restrictions, as amended or modified from time to time, and with the covenants, conditions, easements and restrictions set forth in this Declaration, the recorded subdivision plats for the Community and in the deed to such Owner's Lot, if any. The Board of Directors may impose fines or other sanctions for violations of the foregoing, which shall be collected as provided herein for the collection of assessments. Failure t6 comply with this Declaration, the Bylaws or the rules and regulations shall be grounds for an action to recover sums due for damages or injunctive relief or both, maintainable by the Association, the Declarant or an aggrieved Owner. All costs and expenses, including, without limitation, reasonable attorney's fees end court costs incurred by the Declarant, the Association or the Owner of any Lot in connection with the enforcement of a violation of the within and foregoing covenants, conditions, restrictions and easements shall be paid by the Owner found to be violating same other than Declarant and shall constitute a lien agaln~ the Lot of such violating Owner. Failure by the Declarant, the Association or any Owner to enforce any of the foregoing shall in no event be deemed a waiver of the fight to do so thereafter. The Association shall have the right to record in the appropriate land records a notice of violation of the Declaration, Bylaws, rules and regulations, use restrictions or design guidelines and to assess the cost of recorcllng and removing such notice against the Lot of the Owner who is responsible (or whose Occupants are responsible) for violating the foregoing. The Declarant shall not be liable to any Person for any violations of the provisions of this Declaration, the Articles of Incorporation, Bylaws, rules and regulations and use restrictions and Declarant does not warrant to anyone that such provisions will be enforced as to any property to which this Declaration is spplieable. The initiation of enforcement action from time to time by the Declarant will be for its sole benefit and Declarant specifically disavows any obligation, implied or otherwise, to maintain or enforce such provisions. 12.2 ~&Rl~aa/.~q~. All provisions of the Declaration, Bylaws, rules and regulations, use restrictions and design guidelines which govern the conduct of Owners and which provide for sanctions against Owners shall also apply to all Occupants and the guests and invitees of Owners and Occupants. The Owner shall be responsible for insuring that the Occupants, the guests, invitees and licensees of the Owner and Occupant strictly comply with all provisions of the Declaration, Bylaws, rules and reguIations, use restrictions and design guidelines. Fines may be levied against Owners or Occupants. Ifa fmc is first levied against an Occupant and is not timely paid, the frae may then be levied against the Owner. 12.3 Self-Help. In addition to any other remedies provided for herein, the Association, the Declarant, the Architectural Review Board or their respective duly authorized agents shall have the power to enter upon any Lot or any other portion of the Community to abate or remove any st, acture, thing or condition which violates this Declaration, the Bylaws, the rules and regulations orthe use resia'ictions. Unless an emergency situation exists, the violating Lot Owner shall be given ten days' written notice of the intent to exercise self-help. Notwithstanding the foregoing, vehicles may be towed after giving any notice required by law. All costs of self-help, -23- including, without limitation, reasonable attorney's fees actually incurred, shall be assessed ag~;~t the violating Owner as a.specific assessment. 12.4 Duration. The covenants, conditions, restrictions and easements contained in this Declaration shaLl run with and bind the Community, and shall inure to the benefit of and shall be enforceable by the Association, the Declarant and any Owner, their respective legal representatives, heirs, successors, and assists% perpetually to the extent provided by law; provided, however, if and to the extent that, Georgia law limits the period during which covenants restricting land to certain uses may run, any provisions of this Declaration affected thereby shall run with and bind the land so long as permitted by such law, after which time, any such provision(s) shall be (a) automatically extended for successive periods oftwenty (20) years (or the maximum period allowed by applicable law, if less), unless a written instrument signed by thc then Owners of at least two-~rds (2/3) of~e Lots has been recorded within the year immediately preceding the begivnlng ora twenty (20) year renewal period agreeing to change such provisions, in whole or in part, or to terminate the same, in which case this Declaration shall be modified or terrolnated to the extent specified therein; or fo) extended, renewed, modified or termhmted as otherwise provided herein or by applicable law. 12.5 Termination of Rights of Declarant. The rights of Declarant to take, approve or consent to actions hereunder and under the Bylaws shall cease and be of no further force and effect upon the earlier of: (a) the date that the Declarant no longer owns any property in the Community and no lollger has the right to unilaterally annex additional property to the Community as provided herein and a certificate of occupancy has been issued for a dwelling on each Lot in the Community; or CO) the date of recording by Declarant in the real estate records of the county Where the CommLlnity iS located of a written instrument terminating all of Declarant's rights hereunder. The rights of Declarant shall be independent and severable and shall not terminate by implication. 12.6 ~. This Declaration may be amended unilaterally at any time and from time to rime by Declarant (a) if such amendment is necessary to bring any provision hereoflnto compliance with any applfcable governmental statute, rule or regulation or judicial determination which shall be in conflict therewith; (b) if such amendment is necessary to enable any reputable title insurance company to issue title insurance coverage with respect to the Lots subject to this Declaration; (c) if such amendment is required by an institutional or governmental lender or purchaser of mortgage loans, inclucllng, without limitation, tlae Federal National Mortgage Association or the Federal Home Loan Mortgage Corporation, to enable such lander or purchaser to make or purchase Mortgage loans on the Lots subject to ~is Declaration; or (d) if such amcvdment is necessary to enable any governmental agency or private insurance company, including, without limitation, the U.S. Department of Housing and Urban Development and the U.S. Department of Veteran.s Affairs, to insure or guarantee Mortgage loans on the Lots subject to this Declaration; provided, however, any such amendment shall not adversely affect the title to any Lot unless the Owner of such Lot consents thereto in writing. Further, Declarant may tmilat~n~dly amend th.is Declaration for any other purpose; provided, however, any such amendment she, l! not materially adversely affect the substaative rights of any Lot Owners hereunder nor shall it adversely affect title to any Lot without the consent of the affected Lot Owner. In addition to the above, this Declaration may be amended upon the affirmative vote or written consent of at least two-thirds of the Lot Owners and the consent of Declarant. Amendments to this Declaration shall become effective upon recordation unless a later effective date is specified therein. The consent of the Declarant to any amendment shall be evidenced by the execution of said amendment by Declarant. The consent of the requisite number of Owners to any amendment shall be evidenced by the execution ofthe amendment by said Owners, or, in the alternative, the sworn statement of the President or any Vice President or the Secretary of the Association attached to or incorporated in the amendment, which sworn statement states unequivocally that the consent of the required number of Owners was obtained and that any notices required by this Declaration, the Bylaws, the Articles of Incorporation and Georgia law were g~v~n. 12.7 ~. The singular, wherever used herein, shall be conslrued to mean the plural, when applicable, and the use of the masculine or feminine pronoun shall include the neuter, masculine and feminine. 12.8 ~. Whenever possible, each provision of this Declaration shall be inteupreted in such m~n,~¢r as to be effective and valid, but if the application of any provision of this Declaration to any Person or to any property shall be prohibited or held invalid, such prohibition or invalidity shall not affect any other provision or the application of any provision which can be given effect without the invalid provision or application and, to this end, the provisions of this Declaration are declared to be severable. 12.9 Captions. The captions ofesch Article and Section hereof, as to the contents of each Article and Seefiort, are inserted only for convert/cote and me in no way to be construed as defining, limiting, extending or othenvise modifying or adding to the particular Article or Section to which they refer. 12.10 No Merger. There shall be no merger of any of the covenants, conditions, restrictions or easements created or reserved hereby with the fee estate of Declarant, by reason of the fact that Declarant may own or hold the estate or interest both encumbered and benefitted by such covenants, conditions, restrictions or easements and no such merger shall occur unless and until Declarant, while owning all of the estate or interests shall execute a written statement or instrument affecting such merger and shall duly record the same. 12.11 Intentionally left blank. 12.12 Notices. Notices provided for in this Declaration or the Articles or Bylaws shall be in writing, and shall be addressed to any Owner at the address of the Lot and to the Declarant or the Association at the address of their respective registered agent in the State of Georgia. Any Owner may designate a different address for notices to such Owner by giving written notice to the Association. Notices addressed as above shal! be deemed delivered three business days after mailing by United States Registered or Certii~ed Mail, postpaid, or upon dehvery when delivered in person, including delivery by Federal Express or other reputable courier service. 12.13 Peru_ etuities, frany of the covenants, conditions, restrictions or other provisions of th.is Declaration shall be unlawful, void or voidable for violation of the rule against perpetuities, then such provisions shall continue only until 21 years a_Rer the death of the last survivor of the now living descendants of Elizabeth Il, Queen of England. 12.14 ~. To the fullest extent allowed by the Georgia Nonprofit Corporation Code, and in accordance therewith, the Association shall indemnify every current and former officer, director and committee member against any and all expenses, including, but not limited to, attorney's fees, imposed upon or reasonably incurred by any officer, director or cornmlttee member in connection with any action, suit or other proceeding (including settlement of any suit or proceeding, if approved by the then Board of Directors) to which such officer, director or committee member may be a party by reason of being or having been an officer, director or committee member. The officers, directors and committee members shall not be liable for any mistake of judgment, negligent or otherwise, except for their own individual willful misfeasance, malfeasance, misconduct or bad faith. The officers, directors and committee members shall have no personal liability with respect to any contract or other commitment made by them, in good fait. ho on behalf of the Association and the Association shall indemnify and forever hold each such officer, director and committee member free and harmless against any and all liability to others on account of any such contract or commitment. Any right to indemnification provided for herein shall not be exclusive of any other fights to which any officer, director or committee member, or former officer, director or committee member, may be entitled. The Association shall maintain adequate general liability and officers' and directors' liability insurance to fund this obligation, ii'such coverage is reasonably available. 12. I5 Inspection of Books and Records. This Declaration, the Bylaws, copies of rules and use restrictions, membership register, books of account and minutes of meetings of the members of the Board and of committees shall be made available for inspection and copying by any member of the Association or by the duly appointed representative of any member and by holders, insurers or guarantors of any first Mortgage at any reasonable time and for a purpose reasonably related to such Person's interest as a member or holder, insurer or guarantor of a fa'st Mortgage at the office of the Association or at such other reasonable place as the Board shall prescribe. The Board shall establish reasonable rules with respect to (i) Notice to be given to the custodian of the records; (ii) hours and days of the week when such aa inspection may be made; and ('fii) payment of the costs of reproducing copies of documents. Every director shall have the absolute fight at any reasonable time to inspect all books, records and docuraents of the Association and the physical properties owned or controlled by the Association. The fight of inspection by a director includes the right to make extra copies of documents at the reasonable expense of the Association. 12.16 ~. Fi~.cial statements for the Association shall be prepared nnnually on such accounting basis as may be required b:y the Board of Directors; provided, however, after having received the financial statements, the Owners, by a majority or'the Total Associetion Vote and the consent of Declarant, may require that the accounts of the Association be audited as a common expense by a ceffified public accountant. Upon writtell request of any institutional holder ora first Mortgage and upon payment of all necessary costs, such holder shall be entitled to receive a copy of audited financial statements within 90 days of the date of the request. 12.17 Notice of Sale. Lease or A _caulsifion. Prior to the sale or lease of a Lot, the Owner shall provide the Association with written notice of the .nme of the purchaser or lessee, as the case may be, and such other information as the Board may reasonably require. Upon acquisition ora Lot each new Owner shall pwvide the Association with vaitten notice of the name and mailing address of the Owner and such other information as the Board may reasonably require. 12.18 ~. Reserved 12.19 ~. Notwithstanding anything to the contrary contained h~rein, the Board of Directors shall be authorized to grant individual variances from any of the provisions of this Declaration, the Bylaws and any rule, regulation or use restriction promulgated pursuant thereto, if it det~,,ines that waiver of application or enforcement of the provision in a particular case is warranted and would not be inconsisteni with the overall scheme of development for the Community. [SIGNATURES ON FOLLOWING PAGE] -27- IN WITNESS ~J-tEREOF, the Declarant herein hereby executes this instrument under Seal, this /~-r'~ay of.Zg,,-~-,-,~4~ 2001. DELARANT: Georgia Classic Homes, L.L.C., a Georgia limited liability company Name: Title: Signed, sealed, and delivered in the presence off William T. Gibson, Jr. Managing Member, Georgia Classic Homes, EEC. · :. NOTARY PUBLIC My Commission Expires: ( AFFIX NOTARY SEAL) i ~"i"t')' '~ TA fi, ). 28 EXHIBIT "A" Property Description All that tract or parcel of land lying and being in Land Lots 19 and 28 of the 6~h District, City of Peachtree City, Fayette County, Georgia, as more particularly shown on that certain Final Plat of Ashton Park, containing the certificate of George T. White, G.R.L.S. No.1929 and recorded on July 5th, 2001 in Plat Book 34, Page 162-164, and Revised Plat recorded on November 28th, 2001 in Plat Book 35, Page 106, Fayette County, Georgia land records, reference to said plats of survey and the record thereof being hereby made for a more complete description. 29 EXHIBIT "B" Additional Property Which May Unilaterally Be Submitted To This Declaration of Protective Covenants, Conditions, Restrictions and Easements by Declarant All that tract or parcel of land lying and being in Land Lots 19 and 28 of the 6th District, City of Peachtree City, Fayette County, Georgia. 30 EXHIBIT "C" BYLAWS OF ASHTON PARK COMMUNITY ASSOCIATION, INC. BYLAWS OF ASHTON PARK COMMUNITY ASSOCIATION, INC. - TABLE OF CONTENTS - Article 1 ]qame, b4embei-shi.n~ A_o?icabili _ty and Definitions ............ -1- 1.1 Name .................................................. -1- 1.2 ~ .............................................. -1- 1.3 ~ ............................................... -1- A~c~= 2 Association: Meetings. Ouorum. Voting. Proxi~ ........... '. -1- 2.1 ~ .......................................... -i- 2.'2 Aum~L~,mia~ ........................................... -~- 2.3 ~ ........................................... -1- 2.4 ~ .............................................. -1- 2.~ ~ ......................................... -2- 2 6 ~L/}/.~ ' 2 2.? Adjournment of Meetings ..................................... -2- 2.8 ~ ........................................... -2- 2.9 ~ .................................................. -3- 2.10 Proxies ................................................. -3- 2.11 ~ ................................................. -3- 2.12 Action Without A Formal Meetin~ ............................... -3- 2.13 Action B_v Written Ballot ...................................... Article 3 Board of Directors: Number. Powers. Meetin_es ............. -4- 3.1 G0vernin_~ Body: Composition .................................. -4- 3.2 Directors Appointed by Declarant ................................ .4- 3.3 ~ale. t..~Jrmm ........................................ -4- 3.4 Nomination of Directors ......................................-4- 3.5 Election and Term of Office ................................... -4- 3.6 ~ ........................................ -5- 37 ~ -5- 3.8 Organization Meetin_~s .......................................-5- 3.9 ~ .......................................... -5- BoO 17 6 2 2 BOOK G PAGE 3,1 l Waiver of Notice ........................................... -6- 3,12 Quorum of Board of Direc£or~ .................................. -6- 3.13 ~ ............................................. -6- 3.14 O~.n Meetings ............................................ -6- 3.15 ~ .......................................... -6- 3.16 Action Without A Formal Meeting ............................... -6- 3, I? Telephonic Participation ...................................... -6- 3.18 powers ................................................. -6- 3.19 ......................................... -7- 3.20 ~ ............................................... -8- 3.21 Fining or Suspension Procedure ................................. -8- Article 4 Officers .......................... -9- 4.1 Officers ................................................. -9- 4.2 Election. Term of Office. and Vacancies ........................... -9- 4.3 _Additional Officers and A_~ents .................................. -9- 4.4 Salaries ................................................. -9- 4.5 Removal ................................................ -9- 4.6 President ................................................ -9- 4.7 Vice President ............................................. -9- 4.8 Secretary. ............................................... -I0- 4.9 Treasurer ............................................... -I0- 4.10 ~ .............................................. -10- Article 5 Co~u~s ........................ -10- Article 6 Miscellaneous ....................... -10- 6.1 Fiscal Year .............................................. -10- 6.2 P.g~ialll~Ll~ll~ ........................................ -1I- 6.3 Conflic~ ............................................... -11- 6.4 Amendment ............................................. -1 !- BYLAWS OF ASHTON PARK COMMUNITY ASSOCIATION, INC. Article I Name. Membership. Applicability and I)efinifion.~ 1.1 Name. The name of file corporation shall be Ashton Park Community Association, Inc. (hereinafter sometimes referred to as the "Association"). 1.2 Membership. Wac Association shall have one class of membership, as is more fully set forth in that certain Declaration of Protective Covenants, Conditions, Restrictiom and Easements for Ashton Park (such Declaration, as amended, renewed, or extended from time to time, is hereinafter sometimes referred to as the '~"), file term~ of which pertaining to membership are specifically incorporated by reference herein. 1.3 ~fi~t~m. The words used in these Bylaws shall have tho same meaning as set forth in the Declaration, unless tiao context Shall prohibit. Article 2 Association: Meetings. _Ouomm. Voting. Proxies 2.1 P_lllg~.of.t~dJll~. Meetings of file Association shall be held at file principal office of the Association or at such other suitable place convenient to the members as may be designated by the Board of Directors, either in the CommRllity or as convenient thereto as possible and practical. 2.2 a~I~LMg~. There shall be an annual meeting of file members at such date, place and time as tile Board of Directors shall determlne to receive the reports of the outgoing Board of Directors, to install directors for file en~dng year and to transact such other business as may come before thc meting. 2.3 ~. The President or the Board of Directors may call special meetings. In addition, it shall be the duty of the President to call a special meeting of the Association upon the delivery of a petition signed and'dated by members entitled to cast at least 25 % of the Total Association Vote and describing the purpose or purposes for which it is to be held. The notice of any special meeting shall state the date, time, and place of such meeting and the purpose(s) thereof. No business shall be transacted at a special meeting, except those matters that are within file purpose or purposes d~crihed in the notice. 2.4 ~. The Board of Directors shall fix in advance a record date for a determination of members entitled to notice of and to vote at any meeting of members or any adjournment thereof, or to make a determination of members for any other purpose, such date to be not more than seventy (70) days before the date on which the particular action requiring such determination of members is to be taken. 2.5 Notice of Meetings. It shall be the duty of the Secretary to mail or to cause to be delivered to the Lot of each member (as shown in the records of the Association as of the record date) a notice of each annual or special meeting of the Association stating the date, time and place where it is to be held and if and to the extent required by the Georgia Nonprofit Corporation Code (O.C.G.A. Section 14-3-101, et seq.) or other applicable law (the "_C. to_v. gxniagi,~"), the purpose(s) thereof. If an Owner wishes notice to be given at an address other th~n the Lot, the Owner shall designate by notice in writing to the Secret~ry such other address. Notices shall be mailed or delivered not less than ten (I0) days (or if notice is mailed by other than first-class or registered mail, thirty (30) days) nor more than sixty (60) days before the meeting.//any meeting of the members is adjourned to a different date, time or place, notice need not be given of the new date, time or place, if the new date, time or place is announced at the meeting before adjourument. If, however, a new record date is or must be fixed under the Governing Law notice of the adjourned meeting shall be given to persons who are members of record as of the new record date. 2.6 Waiverof Notice. Waiver of notice of a meeting of the members shall be deemed the equivalent of proper notice. Any member may, in writing, signed by the member, waive notice of any meeting of the members, either before or after such meeting. Attendance at a meeting by a member, whether in person or by proxy, shall be deemed waiver by such member of lack of notice or defective notice, unless such member specifically objects to lack of proper notice at the time the meeting is called to order. 2.7 Adjournment of Meetings. If any meeting of the Association cannot be held because a quorum is not present, a majority of the members who are present at such meeting, either in person or by proxy, may'adjourn the meeting to a time not less than five (5) nor more than thirty (30) days from the time the original meeting was called. At such adjourned meeting at which a quorum is present, any business which might have been tranuaeted at the meeting originally called may be tran.uacted without fiu'ther notice. 2.8 Membership List. After the record date for any meeting is established by the Board of Directors, the Secretary shall prepare an alphabetical list of the names and addresses of all of the members who are entitled to notice of the meeting. Beginning at least two business days after notice is given of the meeting for which the list was prepared, the list of members shall be available for inspection by any member or a member's agent or attorney at the Association's principal office or at such other reasonable place as may be specified in the notice. In addition, the list shall be available for inspection at the meeting or any adjournment thereof. 2.9 Y. flliag. The voting rights of the members shall be as set forth in the Articles of Incorporation and the Declaration, and such voting rights arc specifically inco~po~ted herein. 2.10 Proxies. At all meetings of members, each member may vote in person or by proxy. All proxy appointment forms shall be in writing, dated, and f'ded with the Secretary before the appointed time of each meeting. Every proxy shall be revocable and shall automatically cease upon: (a) receipt of notice by the Secretary of the death or judicially declared incompetemce of a member; 0a) receipt by the Secretary of written revocation signed by the member; (c) receipt by the Secretary of a subsequent appointment form signed by the member; (d) attendance by the member and voting in person at any meeting; or (e) the expiration of 11 months from the date of the proxy appointment form. 2.11 Ouorum. The presence, in person or by proxy, of members entitled to cast at least 25% of the votes entitled to be cast at the meeting shall constitute a quorum at ali meetings of the Association. The members present at a duly called or held meeting at which a quorum is present may continue to do business until adjournment, notwithstanding the withdrawal of enough members to leave less than a quorum. 2.12 Agtion Without A Formal Meeting. Any action required or permitted to be approved by the members may be approved without a meeting if one or more consents, in writing, setting forth the action so taken, sh~ be signed and dated by members (including the Declarant, if the consent of the Declarant is required) holding the voting power required to pass such action at a meeting held on the record date for such action. The record date for such action shall be the date that the fa'st member signs a consent. Such action shall be approved when the Secretary receives a sufficient number of such consents dated within 70 days of the record date for such action. If less than unanimous consent is obtained, the approval shall be effective ten days after the Secretary gives written notice of the approval to all members who did not sign a consent. Each signed consent shall be included in the m~nutes of meetings of members fried in the permanent records of the Association. 2.13 Action By Written Ballot. Any action that may be taken at any annual, regular or special meeting of members may be taken without a meeting if approved by written ballot as provided herein. The Association shall deliver a written ballot to each member entitled to vote on the matter. The written ballot shall set forth each proposed action and provide an opportunity to vote for or against each proposed action. A~l solicitations for votes by written ballot shall indicate the ~nmber of responses needed to meet the quorum requirements; state the percentage of approvals necessary to approve each matter other than election of directors; and specify the time by which a ballot must be received by the Association ia order to be counted. A timely written ballot received by the Association may not be revoked. Approval by written ballot of an action shall only be valid when the ~nmber of votes cast by ballot equals or exceeds the quorum required to be present at a meeting held to authorize such action and the number of approvals equals or exceeds the number of votes that -3- 17 6 would be required to approve the matter at a meeting at which the total ~umber of votes cast was the same as the number of votes cast by ballot. The results of each action by written ballot shall be certified by the Secretary and shall be included in the minutes of meetings of members filed in the permanent records of the Association. Article 3 Board of Directors: Number. Powers. Meetings 3.1 Governing Body: Composition. The affairs of the Association shall be governed by a Board of Directors. Directors shall be natural persons who are 18 years of age or older. Except as provided in Section 3.2, each director must reside in the Community and be a member or the spouse of a member; provided, however, no Person may serve on the Board at the same time with such Person's spouse or any co4)wner or Occupant of such Person's Lot. 3.2 Directors Appointed by Declarant. The Declarant shall have the right to appoint or remove any member or members of the Board of Directors or any officer or officers of the Association until such time as the first of the following events shall occur: (a) the expiration of seven (7) years after the date of the recording of the Declaration; (b) the date on which all of the Lots planned by Declarant to be a part of the Community shall have been improved with a dwelling and conveyed to an Owner for occupancy as a residence; or (c) the surrender by Declarant in writing of the authority to appoint and remove directors and officers of the Association. The directors appointed by the I)eclarant need not be Owners or residents in the Commullity. The total number of lots planned by Declarant for the Community shall initially be the number of Lots shown on the Declarant's land use plan for the development as it may be amended from time to time. Inelusinn of property on the land use plan shall not obligate the Declarant to subject such property to the Declaration, nor shall exclusion of property from the initial land use plan bar Declarant from subjecting such property to the Declaration. The final total number of Lots planned for the Community shall be the actually number of Lots shown on the recorded subdivision plat(s) for the Community regardless of any different number of Lots shown from time to time on the land use plan. 3.3 ]:{IIIIlI~C~L~D~. The Board shall consist of three members. 3.4 Nomination of Directors. Elected directors may be nominated from the floor, if a meeting is held for the election of directors and may also be nominated by a nominating committee, if established by the Board. All candidates shall have a reasonable opportunity to comm~micate their qualifications to the members and to solicit votes. 3.5 Election and Term of Office, After the Declarant's right to appoint directors and officers terminates, the Association shall call a special meeting (or rake action under Section 2.11 or Section 2.12 in lieu of a meeting) and the members shall elect three directors. The members of the Board of Directors shall hold office for one year and shall continue in office ~ntil their respective successors shah have been dec~d and take of-rice. At anm~.t meetings of the membership thereafter (or pursuant to Section 2.! 1 or Section 2.12 in lieu of a meeting), directors shall be elected. The three candidates receiving the most votes sba1! be elected. 3.6 ~8~_~LDJ~. At any .nnual. regular or special meeting of the Association, any one or more of the members of the Board of Dir~tors elected by the members may tm removed, with or without cause, by a m.jority of the Total Association Vote and a successor may then and there be elected to fill the vacancy thus created. The notice of the meeting shall state that the purpose, or one of the purposes, ot the meeting is removal of a director. A director whose removal by thc members has been proposed shall be given an opporlunity to bc heard at the meeting. Additionally, any director who has three consecutive unexcused absences from Board meetings or who is delinquent in the payment of an assessment for mor~ than 30 days may be removed by a mnjority vote of the remaining directors. 3.7 Vacancies. Vacancies in the Board of Directors caused by any reason, excluding the removal of a director by vote of the Association, shall be filled by a vote of the majority of the remaining directors. Each Person so selected shall serve the unexpired portion of tile term. 3.8 Organization Meetings. The first meeting ora newly elected Board of Directors sh~l~ be held within ten days after the election at such time RI~ place aS the directors may conveniently assemble. 3.9 g~glliat_J~e,i~A~. Regular meetings oft. he Board of Directors may be held at such time and place as shall be determlned from time to time by the Board, provided that, after the right of Declarant to appoint the directors terminates, at least four such meetings shall be held during each fiscal year with at least one per quarter. Notice of the regular schedule shall constitute sufficient notice of such meetings. 3.10 Special Meetings. Special meetings of the Board of Directors shall be held when requested by the President, Vice President or by any two dir~tors. The notice shall specify the date, time and place of the meeting and the nature of any special business to be considered. The notiee shall be given to each director by one of the following methods: (a) by personal delivery (including commercial delivery service) to such diderot's home or office; Co) written notice by first class mail, postage prepaid; or (c) by telephone communication (including facsimile), either directly to the director or to the director's home or office. All such notices sh~ll be given or se~t to the director's address or telephone number as shown on the records of the Association. Notices sent by t'u-st class mn~ sh~ll be deposited with the U.S. Postal Service at least four days before the time set for the meeting. Notices given by personal delivery or telephone shall be given at least mo days l~fore the day set for thc meeting. -5- 3.11 Waiver of Notice. The business transacted at any meeting of the Board of Directors, 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 of the minutes which is included in the minutes or filed with the official records of the Association. The waiver of notice or consent need not specify the purpose of the meeting. Notice of a meeting shall also 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 _Ouorum of Board of Directors. At all meetings of the Board of Directors, 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 of Directors. 3.13 Compensation. No director shall receive any compensation from the Association for acting as such. 3.14 ~. All meetings of the Board shall be open to all members, but members other than directors may not participate in any discussion or deUberation unless expressly so authorized by the Board. 3.15 ?~gllRlJ_w~g~I1. The Board may adjourn a meeting and reconvene in executive session to discuss and vote upon personnel matters, litigation in which the Association is or may become involved, and orders of business cfa similar nntu~. The nature of any and all business to be considered in executive session shall first be annonnced in open session. 3.16 Action Without A Formal Meetin_~. Any action required or permitted to be taken at a meeting of the directors may be taken without a meeting if one or more consents, in writing, setting forth the action so taken, shall be signed by a majority of the directors and delivered to the Association for inclusion in the minutes for filing in the corporate records. 3.17 Telephonic Participation~ One or more directors may participate in and vote during any meeting of the Board by teIephone conference call or any other means of communication by which ail directors participating may simultaneously hear each other during the meeting. Any such meeting at which a quorum participates shall constitute a meeting of the Board. 3.18 Powers. The Board of Directors shall be respons~le for the affairs of the Association and shall have all of the powers and duties necessary for the administration of the Association's affairs and, as provided by law, may do all acts and things as a.re not by law, the Declaration, Articles, or these Bylaws directed to be done and exercised by the members. In -6- addition to the duties imposed by these Bylaws or by any resolution of the A.ssociation that may hereal~ be adopted, the Board of Directors shall have the power to and be responsible for the following, in way of explanation, but not limitation: (a) preparation and adoption of an ~.nual budget in which there shall be established the contribution of each member to thc common expenses; (b) m~k. ing assessments to defray the common expeuses and establishln~ thc means and methods of collecting such assessments; (c) providing for the operation, care, upkeep, and maintenance of all areas which are the maintenance responsibility of the Association; (d) designating, hiring, and dismissing the personnel necessary for the operation of the Association and, where appropriate, providing for tbe compensation of such personnel and for the purchase of equipment, supplies, and material to be used by such personnel in the performance of their duties; (~) collecting the assessments, depositing the proceeds thereof in a b~.lc depository which it ab.fl approve, and using the proceeds to administer the Association; (f) m~ldng mid ~mending rules and regulations; (g) opening of bank accounts on beh~ff of the Association and designating the signatories required; 01) enforcing by legal means the provisions of the Declaration, these Bylaws, and the niles and regulations adopted by it, and bringing any proceedings which m~y be instituted on behalf of or against the members concerning the Association; (i) obt. lnlr~g and carrying insurance against casualties and liabilities, as provided in the Declaration, and paying the premium cost thereof; (j) keeping books with detailed accounts of the receipts and expenditures of the Association sad the actions thereof, mid specifying the msinte~lance and repair expenses and any other expenses incurred; and (lc) authorization of contracts on behalf of the Association. 3.19 l~d~lag~lI~L~. The Board of Directors may employ for the Association a professional m~n.gement agent or agents at a compensation established by the Board of Directors to perform such duties and services as the Board of Directors shall authorize. The Declarant or an affiliate of the Declarant may be employed as managing agent -7- BOGK J. 7 6 1 PAGE or manager. The term of any mamgement agreement shall not exceed one year aud shall be subject to termination by either party, without cause and without penalty, upon 90 days' written notice. 3.20 ~. The Board of Directors shall have the power to borrow money without the approval of the members of the Association; provided, however, except as otherwise provided in the Declaration, the Board shall obtain_ membership approval in the same manner as for special assessments, in the event that the total mount of such borrowing exceeds or would exceed ten percent of the annual budget of the Association. 3,21 Fining or Sus~nsion Procedure. The Board shall not impose a fine (a late charge shall not constitute a fine) or suspend au member's right to vote or to use any part of the Common Property unless and until the following procedure is followed: (a) Notice. Written notice shall be delivered m the member by first-class or certified mail sent to the address of the member shown on the Association's records, specifying: (i) the nature of the violation, the fine or suspension to be imposed and the date, not less than 15 days from the date of the notice, that the frae or suspension will take effect; (iD that the violator may, within ten days from the date of the notice, request a hearing regarding the f'me or suspension imposed; (iii) the name, address and telephone numbers of a person to COntact tO challenge the f'me or suspension; (iv) that any statements, evidence, and wituesses may be produced by the violator at the hearing; and (v) that all rights to have the f'me or suspension reconsidered are waived if a hearing is not requested within ten days of the date of the notice. Co) lzl~a:ilag. If a hearing is requested, it shall be held before the Board in executive session, and the violator shall be given a reasonable opportunity to be heard. The minutes of the meeting shall contain a written statement of the results of the hearing. No t-me or suspension shall be imposed prior to the date that is five days after the date of the hearing. -8- A~cle 4 Office~ 4.1 Officers. The officers of the Association shall be a President, Vice President, Secretary, and Treasurer. Any two or more offices m~y bo held by the same Person, excepting the offices of President and Secretary. The President and Treasurer shall be elected from among the members of the Board of D/rectors. 4.2 E[ectlon. Term of Office. and Vacancies. Except during the period in which the Declarant has the right to appoint the officers of the Association under Section 3.2 of these Bylaws, the officers of the Association shgli be appointed annually by the Board of Directors at the first meeting of the Board of Directors following the election of directors. A vacancy in any office arising because of death, resignation, removal, or otherwise may be filled by the Board of D/rectors for the unexpired portion of the term. 4.3 Additional Officers and A_~ents. The Board of Directors may appoint such other officers, including vice presidents, assistant secretaries and assistant treasurers, and agents as it shall deem necessary. Such officers and agents shall hold their respective offices for such terms and shall exercise such powers and perform such duties as shall bo determined from Hm~e to thne by the board of directors. 4.4 S~i~ie~. The officers shall receive no compensation. 4.5 Removal. Except for officers appointed by the Declarant, any officer may be removed, with or without cause, by the Board of Directors. 4.6 ~sid~t. The President shsl! be the chief executive officer of the Association and shall preside at all meetings of the members ~ directors. The immediate supervisio~ of the afl/firs of the Association sh~ll b~ vested in the President. It shall be the President's duty to attend to the business of the Association and mainta/n strict supervision over all of its affairs and interests. The President shall keep the Board of Directors fully advised about the affairs and conditions of the Association, and shsll Iwn~g¢ and operate the business of the Assochfion pursuant to and in accordance with such policies as may be prescribed from time to time by the Board of Directors. 4.7 Vice President. Thc Vice President(s), if any, sh~l! act in the President's absence or disability and shall have all powers, duties, and responsibilities provided for the President when so acting, and sh~!! perform such other duties as shall from time to time be imposed upon ally Vice President by the Board or delegated to a Vice President by the President. 4.8 Secretary. The Secretary shall keep the minutes of all meetings of the members and of thc Board of Directors; notify the members and directors of meetings as provided by these bylaws and Georgia law; have custody of the seal of the Association; af~ such seal to any instrument requiring the ssme; attest the signature or certif7 thc inc~mhency or signature of any officer of the Association; and perform such other duties as the President, or the Board of Directors may prescribe. The Secretary shall perform the duties of the Treasurer of the Association in the absence or disability of the Treasurer. 4.9 Treasurer. The Treasurer shall keep, or cause to be kept, the financial books and records of the Association, and shall faithfully account for the Association's funds, financial assets, and other assets enl~usted to the Treasurer's care and custody. The Treasurer shall mske such reports as may he necessary to keep the President and the Board of Directors informed at all times as to the financial condition of the Association, and shall perform such other duties as the President, or the Board of Directors may prescribe. The Treasurer shal! maintain the money and other assets of the Association in the name and to the credit of the Association in such depositories as may be designated by the Board of Directors. The Treasurer may provide for the investment of the money and other assets of the Association consistent with the needs of the Association to disburse such money and assets in the course of the Association's business. The Treasurer shall perform the duties of the Secretary of the Association in the absence or disability of the Secretary. 4.10 K~iignat~. Any officer may resign at any time by giving written notice to the Board of Directors. Such resignation shall take effect on thc 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. Article 5 Committees Advisory committees to perform such tasks and to serve for such periods as may be designated by the Board are hereby authorized. Each committee shall be composed and shall operate in accordance with the terms of the resolution of the Board of Directors designating the committee or with rules adopted by the Board of Directors. An advisory comnljttee shall not be authorized to exercise any authority of the Board under the Articles of Incorporation, the Declaration, these Bylaws or the'Georgia Nonprofit Corporation Code. Article 6 Miscellancou~ 6.1 Fiscal Year. The fiscal year of the Association shall be the calendar year unless otherwise determined by resolution of the Board. -10~ 6.2 ~. Roberts Rules of Order (current edition) shaI~ govern the conduct of all Association proceedings, when not in conflict with Georgia law, the Articles of Incorporation, the Declaration or these Bylaws. 6.3 Conflict. II'there are conflicts or inconsistencies between the provisions of Georgia law, the Articles of Incorporation, the Declaration and these Bylaws, the provisions of Georgia law, the Declaration, the Articles of Incorporation and the Bylaws (in that order) shall prevail. 5.4 Ame~en~ These Bylaws may be amended by the Board of Directors with the consent of the Declarant if such amendment is necessary to: (a) bring any provision hereof into compliance with any applicable governmental statute, role, or regulation or judicial determination which shall be in conflict therewith; (b) enable any title insurance company to issue title in,mrance coverage with respect to the Lots subject to thc Deciaration; (c) required to enable an institutional or governmental lender or purchaser of mortgage loans, including, without limitation, the Federal National Mortgage Association or Federal Home Loan Mortgage Corporation, to make or purchase Mortgage loans on the Lots subject to the Declaration; or (d) enable any governmental agency or private insurance company to immre or gnaf',mtee Mortgage loans on the Lots subject to the Declaration. In addition, these Bylaws may be amended upon the affirmative vote of at least two-thirds (2/3) of the Total Association Vote and the consent of Declarant. -11-