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FairwaysDECLARATION OF COVENANTS, CONDITIONS, AND RESTRICTIONS FOR TtlE FAIRWAYS HYATT & RHOADS, P.C. Attorneys 2400 Marq~fis One Tower Atlanla, Georgia 30303 (404) 659-6600 - TABLE OF CONTENTS - A.r.t.i~J.e I. II. III. IV. Vo VI. DEFINITIONS PROPERTY SUBJECT TO THIS DECLARATION ?.age. 1 1 1. Property Hereby Subjected To This Declaration ............ 1 2. Other Property ............................................ 2 ASSOCIATION MEMBEIqSHIP AND VOTING RIGHTS Membership ................................................ 2 Voting .................................................... 2 ASSESSMENTS 2 1. Purpose of Assessment ..................................... 2 2. Creation of the Lien and Personal Obligation [or Assessments ........................................... 2 3. Computation ............................................... 3 4. Special Assessments ....................................... 4 5. Lien for Assessments ...................................... 4 6. Effect of Nonpayment of Assessments: Remedies of the Association ........................................... 5 7, Date of Commencement of Assessments ....................... 6 8. Assessments by Declarant .................................. 6 9. Specific Assessments ...................................... 6 MAINTENANCE 7 I. Association's Responsibility .............................. 7 2. Owner's Responsibility .................................... 7 3. Party Walls ............................................... 8 USE RESTRICTIONS AND RULES 8 1. General ................................................... 8 2. Residential Use ........................................... 9 3. Signs ..................................................... cj 4, Parking and Garages ....................................... 9 5. Leasing.,; ................................................ 10 6. Occupants Bound ........................................... 10 7. Animals and Pets .......................................... 10 8. Nuisance .................................................. 10 9. Unsightly or Unkempt Conditions ........................... 11 10. Architectural Standards ....................... ; ........... 1'1 11. Antennas .................................................. 11 '12. Clotheslines, Garbage Cans, Woodpiles, Etc ................ 11 13. Subdivision of Unil. ....................................... 14. Local Ordinances .......................................... 12 A r.t.i.c_l_e VII. VIII. IX. Xl. Xll. S~.i.OI} P__a.g~ INSURANCE AND CASUALTY LOSSES 12 1. Irtsurance 2. individual 3. Damage and 4. Damage and for Common] Property ............................. 12 Insurance ...................................... 14 Destruction .................................... 14 Destruction -- Insured by Owners ............... 15 CONDEMNATION 15 ANNEXATION OF ADDITIONAL PROPERTY 15 1. Annexation Without Approval of Membership ................. 15 2. Annexation With Approval of Membership ....... , .............. 16 MORTGAGEE PROVISIONS 16 Notices of Action ......................................... 17 Special FHLMC Provision ................................... 17 No Priority ............................................... 18 Notice to Association ..................................... 18 Amendments by Board ....................................... 18 VA/ttUD Approval ........................................... 18 Applicability of This Article ............................. 18 Failure of Mortgagee to Respond ............................ t9 EASEMENTS 19 1. Easements for Encroachment and Overhang .................. 19 2. Easements for Use and Enjoyment .......................... 19 3. Easeme[~ts for Utilities .................................. 20 4. Easement for Entry ....................................... 20 5. Easements to Serve Additional Property ................... 2'1 GENERAL PROVISIONS 21 4. 5. G. 7. 8. 9. 10. 1'1. 13. '14. Enforcement .............................................. 21 Self-Help ................................................ 2'I Duration ................................................. 22 Amendment ................................................ 22 Partition ................................................ 23 Gender and Grammar ....................................... 23 Severability ............................................. 23 Captions ................................................. 23 Preparer ................................................. 23 Conveyances of Common Property ........................... 23 Perpetuities ............................................. 23 Indemnification ................................ ' .......... 23 Construction and Sale Period ............................. 24 Contracts Executed During Declarant Control .............. 24 A r_~_ic.)e '15. Rooks and Records ........................................ 25 IB. Financial Review ......................................... 25 17. Notice of Sale or Lease .................................. 25 18. Variances ................................................ 25 19. Security ................................................. 26 20. Equitable Appointment as Declarant ....................... 26 2637g--'I0/17/90 DECLARAT ION OF COVENANTS, COND I T IONS, AND RESTR I CT IONS FOR TIlE FAIRWAYS Tills DECLARATION is made on the date hereinafter set forth by Fairways Village Development Corporation, a Georgia corporation (hereinafter sometimes called "Declarant"); W I TNE SSE TH WHEREAS, Declarant is the owner of the real property described in Article I[, Section 1, of this Declaration; and WHEREAS, Declarant desires to subject the real property described in Article II, Section 1, hereof to the provisions of this Declaration to create a residential community of single-family housing and to provide for the subjecting of other real property to the provisions of this Declaration; NOW, TIIEREFORE, Declarant hereby declares that tile real property described in Article II, Section 1, of this Declaration, including the improvements constructed or to be constructed thereon, is hereby subjected to the provisions of this Declaration and shall be held, sold, transferred, conveyed, used, occupied, and mortgaged or otherwise encumbered subject to the covenants, conditions, restrictions, easements, assessments, and liens, hereinafter set forth, which are for the purpose of protecting the value and desirability of, and which shall run with the title to; the real property hereby or hereafter made subject hereto, and shall be binding on all persons having any right, title, or interest in all or any portion of the real property now or hereafter made subject hereto, their respective heirs, legal representatives, successors, successors-in-title, and assigns and shall inure to the benefit of each and every owner of all or any portion thereol. Article I D~f in i dons Unless the context shall prohibit, certain words used in this Declaration shall have the definitional meaning set forth in Exhibit attached hereto and by reference made a part hereof. Article Sect ion 1. P.r_op~.r._ty._.Hereby .Subjec_Led_T_p_.'rhis__D_e_c.l_a_r.8.t io.n. The real property which is, by the recording of this Declaration, subject to the covenants and restrictions hereafter set forth and which, by virtue of the recording of this Declaration, shall be held, transferred, sold, conveyed, used. occupied, and mortgaged or otherwise encumbered subject to this Declaration is the real property described in Exhibit "B", attached hereto and by re[erence made a part hereof. Section 2. Otl)e_r....Prope.r~y. Only the real property described in Section 1 of this Article II is hereby made subject [o this Declaration; provided, however, by one or more Supplementary Declarations, Declarant and the Associalion have the ri.qht, but not the obligation, to subject other real property to this Declaration, as hereinafter provided. Article I11 &[~.c_Lat ion IVl_~.m_b_e_r_ship_a__nd_ VoL.Ln_g Rights Section 1. Memb..e_r_s_bip. The Declarant and every Person who is the record owner of a fee or undivided fee interest in any Unit that is subject to this Declaration shall be deemed to have a membership in the Association. Tile foregoing is not intended to include Persons who hold an interest merely as security for the performance of an obligation, and the .qiving of a security interest shall not terminate the Owner's membership. No Owner, whether one or more Persons, shall have more than one (1) membership per Unit. In the event of multiple Owners of a Unit, votes and rights of use and enjoyment shall be as provided in this Declaration and in the By-Laws. Membership shall be appurtenant to and may not be separated from ownership o! any Unit. The rights and privileges of membership, including the right to vote and to hold office, may be exercised by a Member or tile Member's spouse, but in no event shall more than one (1) vote be cast nor of[ice held for each Unit owned. Section 2. _V. qt_i.~)g. Members, incl,ding the Declarant, shall be entitled to one (1) vote for each Unit owned. When more than one Person holds an ownership interest in any Unit, the vote for such Unit shall be exercised as those Owners themselves determine and advise the Secretary prior to any meeting. In the absence of such advice, the Unit's vote shall be suspended in the event more than one Person seeks to exercise it. Article IV A_s_s_e.s_sm~EfLs Section 1. Purpose_of ~ssessment, 'fbe assessa)ents provided for herein shall be used for the general purposes of promoting the recreation, health, safety, welfare, common beoefit, and enjoyment of the Owners and occupants of Units, including tile mRintenance of real and personal property, all as may be more specifically authorized from time to time by the Board of Di rectors. Section 2. ._As_s~s_s~ept..s. Each Owner of any Uni t, by acceptance of a deed therefor, -2- whether or not it shall be so expressed in such deed, covenants and agrees to pay to the Association: fa) annual assessments or charges; (b) special assessments, such assessments to be established and collected as hereinafter provided; and (c) specific assessments against any particular Unit which are established pursuant to the terms of this Declaration, including, but not limited to, reasonable fines as may be imposed in accordance with the terms of this Declaration. All st, ch assessments, together with late charges, interest (not to exceed the maximum legal rate), costs, and reasonable attorney's fees actually incurred, sl3all be a charge on the land and shall be a continuing lien upon the Unit against which each assessment is made. Each such assessment, together wi th late charges, interest, costs, and reasonable attorney's fees actually incurred, shall also be the personal obligation of the person who was the Owner of such Unit at the time the assessment fell due. Each Owner shall be personally liable for his or her portion of each assessment coming due while he or she is the Owner of a Unit, and bis or her grantee shall be jointly and severally liable for such portion fhereof as may be due and payable at the time of conveyance; provided, however, the liability of a grantee for the unpaid assessments of its grantor shall not apply to any first Mortgage holder taking title through foreclosure proceedings or deed in lieu of foreclosure. The Association shall, within five (5) days after receiving a written request and for a reasonable clmrge, furnish a certificate signed by an officer or agent of the Association setting forth whether the assessments on a specified Unit have been paid. A properly executed certificate of the Association certifying the status of assessments on a Unit shall be binding upon the Association as of the date of issuance. Assessments shall be levied equally on all Units and shall be paid in such manner and on such dates as may be fixed by the Board of Directors. Upon ten (10) days' written notice, the Board may accelerate the annual assessment tot delinquents. Unless otherwise provided by the Board, the assessment shall be paid in monthly installments. Section 3. CO~p~_ta~..iQ.~...O_[.Budget. It shall be the duty of tire Board to prepare a budget covering the estimated costs of operating the Association during tile coming year, wl~icb shall include a capital contribution or reserve in accordance with A capital budget separately prepared. The assessment to be levied against each Unit for the coming year shall be set at a level which is reasonably expected to produce total revenue to the Association equal to the total budgeted common expenses, including reserves. In determining the level of assessments, the Board, in its discretion, may consider other sources of funds available to the Association. In addition, the Board shall take into account the number of Units m~bject to assessment on the first day of the fiscal year for which the budget is prepared and the number of Units reasonably anticipated to become subject to assessment during tile fiscal year. So long as the Declarant has tile right unilaterally to annex additional property pursuant Io Arlicle IX on an annual basis, the Declarant may elect, but shall not be obligated, fo reduce the assessment for any fiscal year by payment of a subsidy. However. any Declarant subsidy shall be conspicuously disclosed as a line item ir] tile income portion of the co,non expense budget. If the -3- Declarant elects to pay a subsidy the amount of the subsidy shown on the budget shall be an estimate only and the Declarant shall only be obligated to fund such subsidy to the extent of any actual operating deficit. The payment of a subsidy in one year shall under no circumstances obligate the Declarant to co~]tinue payment of a subsidy in future years. In order to fund initial costs of operating the Association, the Board is authorized to obtain a loan fron the Declarant to provide for initial capitalization of the Associalion. Any such loan shall be interest free and shall be disclosed in tile budget of the Association for the year in wbicb it is obtained, in the financial statements, and in the books and records of the Association. The Board shall cause the budget and the assessments to be levied against each Unit for the following year to be delivered to. each Member at least tblrty (30) days prior to the end of the current fiscal year. The budget and the assessment shall become effective unless disapproved at a meeting by a Majority of the total Association vote and the Declarant (so long as tile Declarant bas an option unilaterally to subject additional property to the Declaration as provided in Article IX). There shall be no obligation to ca{I a meeting for the purpose of considering the budget except on petition of the Members as provided in the By-Laws. The petition must be presented to the Board within ten (10) days of delivery of the notice of assessments. Notwithstanding the foregoing, however, in the event the membership disapproves the proposed budget or the Board fails for any reason so to determine the budget for the succeeding year, then and until such time as a blJdget shall have been determined, as provided herein, tile budget in effect for the then current year shall continue for the succeeding year. Section 4. Spe~ia!.A~ses_smffn.~s. In addition ~o the other assessments authorized herein, the Association may levy special assessments from time to time. So long as the total amount of special assessments allocable to each Unit does not exceed Three Hur]dred ($300.00) Dollars in any one fiscal year, the Board may impose the special assessment. Any special assessment which would cause the amount of special assessments allocable to any Unit to exceed this limitation shall be effective only if approved by a Majority of the total Association vote and the Declarant (so long as the Declarant has an option to unilaterally subject additional property to this Declaration as provided in Article IX). Special assessments shall be paid as determilled by the Board, and the Board may permit special assessments to be paid in installments extending beyond the fiscal year in which the special assessment is imposed. Section 5. .L.ie~.f.or..Ass~sments. All sums assessed against any Unit pursuant to this Declaration, together with late charges, interest, costs, and reasonable attorney's fees actually incurred, as provided herein, shall be secured by a lien on such Unit in favor of the Association. Such lien shall be superior to all other liens and encumbrances on such Unit, except for la) liens of ad valorem taxes; or lb) liens for all sums unpaid on a first Mortgage or on any Mortgage to Declarant duly recorded in the -4- land records of Fayette County, Georgia, and all amounts advanced pursuant to stJch Mortgage and secured thereby in accordance with the terms of such instrument. All other persons acquiring liens or encumbrances on any Unit after this Declaration shall have been re~orded in such records shall be deemed to consent that such liens or encumbrances shall be inferior to future liens for assessments, as provided herein, whether or not prior consent is specifically set forth in the instruments creating such liens or encumbrances. Sec t i on 6. E._f. [~c t__~.f..__Np.npaymen t_ _o f.._A~sessn_)e~)~t s.:.__Rem_ ed.i. es___of_~~ As.s(~ciation. Any assessments which are not paid when due shall be delinquent. Any assessment delinquent for a period of more than ten (10) days shall incur a late charge in an amount as the Board may from time to time determine. The Association shall cause a notice of delinquency to be given to any Membe~ who has not paid wi thin ten (10) days following the due date. If the assessment is not paid within thirty (30) days, a lien, as herein provided, shall attach and, in addition, the lien shall include the late charge, interest, not to e,xcee¢l the maximum legal rate, on the principal amount due, and all late charyes from the date first due and payable, all costs of collection, reasonable attorney's fees actually inctjrre(I, and any other amounts provided or permitted by law. In the event that the assessment remains unpaid afier sixty (GO) days, the Association may, as the Board shall determine, institule suit to collect such amounts and Io foreclose its lien. Each Ow~er, by acceptance of a deed or as a party [o any other type of a conveyance, vests in the Association or its agenls the right and power to bring all actions against him or her, personally, for the collection of such charges as a debt or to foreclose the aforesaid lien in the same manner as other liens for the improvement of real property. The lien provided for in this Article shall be in favor of the Association and shall be for the be~efit of all other Owners. The Association, acting on behalf of the Owners, shall have the power to bid on the Unit at any foreclosure sale or [o acqt~ire, hold, lease, mortgage, or convey the same. No Owner may waive or otherwise except I.iability for the ~ssessments provided for herein, including, by way of illustration, but not limitation, abandonment of the Unit. No Owner may waive or otherwise exempt himself or herself Irom liability for assessments, by abandoning the Unit or in any other manner. The obligation to pay assessments is a separate and independent covenant on the part of each Owner and no red~.~ction of any assessment shall be claimed or allowed by reason of (a) any alleged failure of the Association to take some action or perform some f[~nction required to be taken or performed by the Association under this Declaration or tim By-Laws, ~,b) for inconvenience or discomfort arising from the making of repairs or improvements which are the responsibility of the Association, or (c) from any action taken by the Association to comply with any law, ordinance, or with any order or directive of any municipal or other governmental authority. All payments shall be applled first to costs and attorney's fees, then to late charges, then interest and then to delinquent assessments. -5- Sect ion 7. Da_t(~ o_f__C.o_mmen(;ement_.o.f_A, ss_e.ss.~en_ts. Assessments shall commence as to a Unit on the first (lay of the month following the conveyance of the Unit to a Person other than tile Declarant, Units whicll have not been conveyed ~s provided above shalr not be subject to assessment. However, assessments shall commence on Units containing residences that are owned by Declarant on the first day of the month following the issuance of a certificate of occupancy for the residence constructed on the Unit. Assessments shall be due and payable in a manner and on the schedule that the Board of Directors provides. The first annual assessment shall be adjusted according to the number of months then remaining in that fiscal year. Sect ion 8. ^.ssessmen.ts._by__D_e.(~_l.ar~n.t. Notwi thstanding anything to the contrary herein, the Declarant may contribute assessments due from it, if any, in services or materials or a combination of services and materials, rather than in money (herein col l'ectively called "in kind contribution"). ]he amount by which monetary assessments shall be decreased as a result of any in kind contribution shall be the fair market value ol~ the contribution. If the Declarant and the Association agree as to the value of any contribution, the value shall be as agreed. If the Association and the Declarant cannot agree as to the value of any contribt~tion, the Declarant shall supply the Association wlth a detailed explanation of the service performed and material furnished, and the Association shall acquire bids for performing like services and furnishing like materials from three (3) independent contractors approved I)y the Declarant who are in the business of provi~ling such services and materials. If the Association and the Declarant are s~{ll unable to agree ol~ tile value of the contribution, tile value shall he deemed to be the average of' the bids received from the independent coltt factors. Section 9. Spe. cifi.c._Ass, essmen~s. The Board shall have tile power to specilicatly assess pursuant to this Section as, ill its discretion, it shall deem appropriate. Failure of the Board to exercise its authority trader this Section shall not be grounds for any action against the Association or the Board of Directors and shall not constitute a waiver of the Board's right to exercise its authority under this Section in the future with respect to any expenses, including an expense for which the Board has not previously exercised its authority under this Section, Fines levied pursuant to Article XII, Section 1 and the costs of maintenance performed [,y tile Association which the Owner is responsible for under Article V, Section 2 shall be specific assessments. The Board may also specifically assess Units for the following Association expenses, except for expenses incurred for maintenance and repair of items which are the maintenance responsibility of the Association: fa) Expenses of the Association which benefit less than all of the Units may be specifically assessed equitably among all of the Units which are benefited according to the benefit received. (bi Expenses of the Association which benefit all Units, but which do not provide an equal benefit to all Units, may be assessed equitably among all Units according to the benefit received. -6- Article V Section 1. A~_~sq_c_ia_t_i_.o.n.'__s~...R.e~po.n__s_ibi_.li.t.y, The Association shall maintain and keep in good repair the Common Property. This maintenance shall include, without limitation, maintenance, repair, and replacement, subject to any insurance then in effect of all landscaping and improvements siluated on the Common Property including, without limitation, all entry features, streets, and street lights. The Association shall maintain and keep in good repair, but shall not be responsible for replacement of, all landscaping grounds areas within the boundaries of Units and all roof leaks on the residences, the Association shall clean but not repair or replace all g~tters located on residences. The Association shall maintain and keep in good repair all water and sewer pipes or facilities which serve more than one (I) Unit, whether located within or without a Unit's boundaries. The Association shall have tile right, but not the obligation, to maintain property not owned by the Association including, without limitation, green belt area located adjacent to the Community, where the Board has determined that such maintenance would benel'it all Owners. The foregoing maintenance shall be performed consistent with the Community-Wide Standard. Section 2. Own~.[.'.~s.Bespo_ns.ibi.l. ity. Except as provided in Sect ion '1, above, all maintenance of the U~lit including, without limitation, all slructures and parking areas, shall be the responsibility of the Owner. Such maintenance shall be performed consistent with this Declaration and the Community-Wide Standard established pursuant hereto. In tile event that the Board of Directors of the Association determines that (a) any Owner has failed or refused to discharge properly his obligal, ions with regard to the maintenance, repair, or replacement of items for which he is responsible hereunder; or (b) that the need for maintenance, repair, or replacement, which is the responsibility of the Association hereunder, is caused through the willful or negligent act of an Owner, his or her family, guests, lessees, or invitees, and is not covered or pai(I for by insurance, in whole or in p~rt, then, the Association may perform the repair, replacement or maintenance and shall, except in the event of Rn emergency situation, give the Owner written notice of the Association's intent to provide such necessary maintenance, repair, or replacement, ~t Owner's sole cost and expense. The notice shall set forth wi th reasonable particularity the maintenance, repairs, or replacement deemed necessary. The Owner shall have ten (10) days wi thin which to complete st~ch maintenance, repair, or replacement, or, in the event that such maintenance, repair, or replacement is not capable of completion within a ten (10) day period, to commence such work which shall be completed within a reasonable time. I[ any Owner does not comply wilh the provisions hereof, the Association may provide any such mainte[~ance, repair, or replacement at -7- Owner's sole cost and expense, and all costs shall lie added to and become a part of the assessment to wblch such Owner is subject and shall become a lien against tile Unit. Sec t (al Genera.t. Rul_e_s_.of. Law to AppJy. Each wall built as a part of tim original construction of the Units which shall serve and separate any two (2) adjoining Units shall constitute a party wall and, to the extent not inconsistent with the provisions of this Section, the general rules of law regarding party walls and liabilily for property damage due to negligence or willful acts or omissions shall apply thereto. (bi Shar.ing._..o_f_.Repa[r_.~n.d_Mai_ntenan.ce. The cost of reasonable repair and mainlenance of a party wall shall be shared by the Owners who make use of the wall in equal proportions. lc) Damage__and_.Oe$)..~uc. tj.on. If a party wall is destroyed or damaged by fire or other casualty, then to the extent that such damage is not covered by insurance and repaired out of the proceeds of insurance, any Owner who has used the wall may restore it, and if the other Owner or Owners thereafter make use of the wall, they shall contribute to the cost of restoralion thereof in equal proportions without prejudice, however, to the right of any such Owners to call for a larger contribution from the others raider any rule of law regarding liability for negligent or willful acts or omi ssions. (¢1) Righ_t..t~)._C.o_nt.r. ib~.tion..[luns. Wi th_L_a._nd. The right of any owner 1o contribution from any olher owner under this Section shall be appurtenant to the land and shall pass to such owner's successors-in-title, (el A.r_bi. Lr.a_t..iQ.n. In tile event of any dispute arising concerning a party wall, or u,tder tile provisions of this Section, each party shall appoint one (l) arbitrator. Should any party refuse to appoint an arbitrator within ten (tO) clays after written request therefor by the Board of Directors, the Board shall appoint an arbitrator for the refusing party. The arbitrators thus appointed shall appoint one (1)additional arbitrator and tile decision by a majorily el all three (3) arbitrators shall be binding upon the parties and shall be a condition precedent to any right of legal action that either party may have against the other. Article VI U s.e__R.e.s_L.r_i_c t j o~s_and_RuJ_es Section 1. g. en. eral., The Board of Directors may, from time to time, without consent of the Members, promulgate, modify, or delete use restrictions and rules and regulat ion.~ applicable to the Units and tile Common Property. This authority shall include, but shall not be limited to, the right to limit the type and size and to set the maximum and minimum speeds of vehicles within the Community. The Association shall also have the authority to impose all other necessary traffic and parking regulations and to restrict the maximum noise levels of vehicles in the Community. Such regulations an(J use restrictions shall be binding upon all Owners and occupants until and unless overruled, cancelled, or modified in a regular or special meeting by the vote of Members holding.a Majority of the total votes in the Association and by the consent of the Declarant (so long as the Declarant has an option unilaterally to subject additional property to this Declaration as provided in Article IX). '~he foregoing notwithstanding, the Association shall not, without the consent of Declarant, so long as Declarant hRs an unexpired option to subject property to this Declaration, adopt, modify, or delete any use restriction, rnle, or regulation concerning new construction without the written consent of Declarant, Section 2. Resjd¢.ntial_Use. Each Unit shall be used for residential purposes only, and no trade or business of any.kind may be conducted in or from a Unlt or any part of the Community, including business uses ancillary to a primary residential use, except that the Owner or occupant residing in the residence on a Unit may conduct such ancillary business activities within the residence so long as fa) the existence or operation of the business activity is not apparent or detectable by sight, sound, or smell from the exterior of the residence; (b) the business activity does not involve persons coming onto the Community who do not reside in the Community or door-to-door sol icitation of residents of the Community; (c) the business activity conforms to all zoning requirements for the Community; and ((I.~ the business activity is consistent with the residential character of the Community and does not constitute a nuisance or a hazardous or offensive use. or threaten the security or safety of other residents of the Community, as may be determined in the sole discretion of tile Board of Directors. The terms "business" and "trade," as used in this provision, shall be construed to have their ordinary, generally accepted meanings, and shall include, without limitation, any occupation, work, or activity undertaken on an ongoing basis which involves the provision of goods or services to persons other than the provider's family and for which the provider receives a fee, compensation, or other form ol consideration, regardless of whether: fi) 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 [or the activity. Notwithstanding the above, the leasing of a Unit or the use of ~ Unit by an on-site management company operating on behalf of the Association shall not be considered a trade or business within the meaning o~ this Section. Section 3. ~gqs.. No sign of any kind shall be erected by an Owner within the Community without the written consent of the Board. The Board shall have the right to erect reasonable and appropriate signs. Section 4. parking 3nd.Garages. The term "vehicles," as used in this provislo~, shall i~clude without limitation, motor homes, boats, trailers, motorcycles, minibikes, scooters, go-carts, trucks, campers, buses, vans, and automobiles. All vehicles shall be parked within garages, driveways or other paved parking areas located on a Unit except that guests -9- and service vehicles may park along streets for reasonable periods of time as determined by the Board. Parking in yards is prohibited. If the Unit includes a garage with exterior doors, tile doors shall be kept closed at all times, except during times of entry and exit from the garage, or when someone is working in or around the garage. All commercial vehicles, tractors, mobile homes, trailers (either with or without wheels), campers, camper trailers, boats and other watercraft, boat trailers, motorcycles, minibikes, scooters, and golf carts must I.)e parked within a garage unless otherwise permitted by the Board. No garage may be altered in such a manner that the number of automobiles which may reasonably be parked therein after the alteration is less than tile number of automobiles that could have reasonably been parked in the garage as originally constructed. Section 5. _L_~asi_ng. Units may be leased for resi~lential purposes. Section 6. Occt~pan~_.ts___B_ound. All provisions of the Declaration and of ar~y rules and regulations or use restrictions promulgated pursuant thereto which govern the conduct ot' Owners and which provide for sanctions against Owners shall also apply to all occupants of any Unit. Section 7. Anima.l.s__~nd_.P__e_ts. No animals, livestock, or poultry of any kind may be raised, bred, kept, or permiltod on any Unit, with the exceplinn of clogs, cats, or other usuRI and common household pets in reasonable number, as determined by the Association; provided, however, those pets which are kept, bred, or maintained for any commercial purpose, permitted to roam tree. or, in the sole discretion of the Association, endanger the health, make objectionable noise, or constitute a nuisance or inconvenience to the Owners of other Units or tile owner of any property located adjacent to tile Community may be removed by the Association. Dogs which are household pets shall at all times whenever they are outside a Unit be con[ined on a leash. Dogs shall be walked only in those areas designated by tile Associat ion. Section 8. N__Uj.s_a.o. ce~. it shall be the responsibility of each Owner to prevent the development of any unclean, unhealthy, unsightly, or unkempt conditim~ of his or her Unit. No Unit shall be used, in whole or in part, for the storage of any property or thing that will cause such Unit to appear to he in an unclean or untidy condition or that will be obnoxious to the eye; nor shall any substance, thing, or material be kept upon any Unit that will emit foul or obnoxious odors or that will cause any noise or other condition that will or might disturb the peace, quiet, safety, comfort, or serenity of the occupants of surrounding property. No noxious or offensive activity shall be carried on upon any Unit, nor shall anything be done thereon tending to cause embarrassment, discomfort, annoyance, or nuisance to any person using any property adjacent to the Unit. There shall not be maintained any plants or animals or device or thing of any sort whose activities or existence in any way is noxious, dangerous, unsightly, unpleasant, or ota nature as may diminish or destroy the enjoyment of tim Comlnun i ry. -10- Section 9. Y.n_~.i.g.lLt.~ly__o_.r_~t]kemp_t__~0Qdi3.[Q_.n_s.. The pursuit of hobbies or other activities, including specifically, without limiting the generality of the foregoing, the assembly and disassembly of motor vehicles and other mechanical devices, which might tend to cause disorderly, unsightly, or red, erupt conditlons, shall not be pursued or undertaken in any part of the Comn~m~ity, Section '10. _A...~h_i.t_e_¢.t~_r.a~_!_.Stand~rds, No exterior alteration, addition, or erection o! any nature whatsoever commenced or placed ,pon any part o[ the Community, except instal led by the Declarant or as is approved in accordance Section. No exterior construction, addition, erection, or construction, shall be such as is with this alteration shall be made unless and until the plans and specifications showing the nature, kind, shape, height, materials, and location shall have been submitted in wriling to and approved by the Board or its designee. The Boord or its designee may promulgate written guidelines for the exercise o! this review. Tile Board or its designee 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 construction in violation of these restrictions. Any member of the Board or its representatives shall have the right, during reasonable hours, to enter upon any Unil lo inspect any Unit and any improvements thereon for the purpose o[ ascert..'zining whether or not these restrictive covenants bare been or are being co,q)lied wi Ill. Such person or persons shall not be deemed guilty of trespass by reason of such entry. In the event the Board or its designee fails to approve or to disapprove such design and location within sixty (O0) days after the plans and specifications have been submitted to it, approval will not be required, and this Section will be deemed to bare been tully compl led wi th. In addition, all exierior construclion, alterations, additions or erections are subject to the ordinances of Peachtree City, Georgia. Section lt. ^rites_nas. No exterior antennas, aerials, satellite dishes, or other apparatus for transmission o! television, radio, satellite or other signals of any kind shall be placed, allowed, or maintained upon any portion o! the Con~nunity, including any Unit, without the prior written consent of the Board or its designee. The Association may erect an aerial [or a master antenna system, should any such master system or systems be utilized by the Association and require any such exterior antenna. Sect ion 12. ~;_l.(~.t.h_e$.]_ine~s,.._Garb__age. _Caos.,.._W.o_odpi !.e~.,..E_tc__, AI I clotheslines, garbage cans, woodpiles, and other similar items shall be located or screened so as to be concealed from view ol neighboring Units Come, on Property and the street on which the Unit (on which the item is located) fronts, All debris, rubbish, trash, and garbage sball be regularly removed and shall not be al lowed to accumulate. Section 13. Subdi.yi~.i_o!!_O_[.Unit. No Unit shall be subdivided or its ho~mdary lines changed except wilh the prior w'ritten approval o[ the Board or its designee. Declarant, however, hereby expressly reserves the right to replat any Unit or Units owned by Oec{arant, Any such division, boundary line change, or replatting shall not be in violation of tim applicable subdivision and zoning regulations. Seclion 14. Local_..O.rdi.o;~nces. All use ot' Units within the Community is also subject to the ordinances of Peachtree City, Georgia, and all other governmental entities having jurisdiction over the Community. Article VII .Lr~.s~ .r_a_n.c~_e_ a n d _~C_a_$~u a_[I _t y I.~o_s_s_e_,~ Sect ion 1. lasprance__.for.Common.propert.y. The Association's Board of Directors or its duly authorized agent shall have the authority to and shall obtain insurance for all insurable improvements on the Common Property. This insurance shall cover loss or damage by fire or other hazards, including extended coverage, vandal ism, and malicious mischief and shall be in an amounf sufficient to cover the t'ull replacement cost of any repair or reconstruction in the event of damage or destruction from any such haza rd. The Board shall ohtain a public liability policy applicable to the Con~mon Property cove~ing tim Association and its Members for all damage or injury caused by the negligence of the Association or any of its Members or agents, and, if reasonably available, directors' and officers' liability in.surance. The public liability policy shall have a combined single limit of at least One Mill ion ($1,000,000.00) l)ollars. Premiums for all insurance shall be common expenses of the Association. ]he policies may contain a reasonable deductible, and the ~mount thereof shall be added to the face amoont of the policy in determiniug whether the insurance at least equals the full replacement cost. All such insurance coverage obtained by the Board of Directors shall be written in the name of the Association, as trustee, for the respective benefitted parties, as further identified in subparagraph (b), below. Such insurance shall be governed by the provisions hereinafter set for th: fa) All policies shall be written with a company licensed to do business in Georgia and holding a rating of Xl or better in the Financial Category as established by A.M, Best Company, IGc., if available, or, if not available, the most nearly equivalent rating, ti)) Exclusive authority to adjust losses under policies obtained by the Association shall be vested in the Association's Board of Directors; provided, however, no Mortgagee having an interest in such losses may be prohihlted from participating in the settlement negotiations, if any, related thereto. -12- (c) In no event shall the insurance coverage obtained and maintained by tire Association's Board of Directors hereunder be brought into contribution with insurance purchased by individual Owners, occupants, or their Mortgagees, and tim insurance carried by tile Association shall be pr imary. (d) All casualty insurance policies shall have an inflation guard endorsement and an agreed amounl endorsement if these are reasonably available and all insurance policies shall be reviewed annually by one or more qualified persons, at least one of whom must be in the real estate industry and familiar with construction in the Fayette County, Georgia, area. (e) The Association's Board of Directors shall be required to make every reasonable eflort to secure insura~ce policies that will provide for the [ollowi.g: (i) a waiver of subrogation by the insurer as to any claims against the Association's Board of Directors, its manager, the Owners and their respective tenants, servants, agents, and guests; (ii) a waiver hy the insurer of its rights to repair and reconstruct instead of paying cash; (iii) that no policy may be cancelled, invalidated, or suspended on accotmt of any one or more individual Owners; (iv) that no policy may be cancelled, invalidated, or suspended on account of any defect or the conduct of any director, officer. or employee of the Association or its duly authorized manager without prior demand in writing delivered to the Association to cure the defect or to cease the conduct and the allowance of a reasonable time thereafter within which a cure may be effected by the Association, its manager, any Owner or Mot tgagee; (v) that any "other insurance" clause in any policy exclude individual Owners' policies from consideration; and (vi) that no policy may be cancelled or substantially modified without at least ten (lO) days' prior written notice to the Association. In addition to the other insurance required by this Section, the Board shall obtain workmen's compensation ins,.,rance, if and to the extent necessary, to satisfy the requirements of applicable laws, and a fidelity bond or bonds on directors, off}ce,'s, employees, and other persons handling or re.~l)onsible for the Association's funds. The amount of fidelity coverage shall be determined in the directors' best business judgment. Bonds shall contain a waiver of all defenses based upon tile excl[,sion of persons serving without compensation and may not be cancel led or substantially modified wiihont at least ten [{{)) days' prior written notice to the Association. Tire Association shall also obtain construction code endorsements, steam boiler coverage, and flood insurance, if and to the extent necessary to satisfy the requirements of The Mortgage Corporation or the Federal National Mortgage Association. ,Section 2. ![)dj.v. id. ua.]....Iosur~r~;.e. Each Owner shall carry blanket al I-risk casualty insurance on tile Unit and all structures constructed thereon and a liability policy covering damage or injury occurring on a Unit. If reasonably available, tile casualty insurance shall cover loss or damage by [ire and other hazards commonly insured under an "all-risk" policy, incl~ding vandalism and malicious mischief, 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 and shall name the Association as an additional insured. If all-risk coverage is not reasonably available, Owners shall obtain, at a minimum, fire and extended coverage. The policies required hereunder shall be in effect at all times. Authority to adjust losses under policies obtained by an Owner shall be vested in the Owner. Sec t i on 3. Dama_ge__.al].d._Pe.s.t. ruc_t. Lo~. (a) In Gener. a!. Immediately after the damage or destruction by fire or other casualty to all or any improvement covered by insurance wrilten in the name of the Association, tile Board of Directors or ifs duly authorized agent shall proceed with the fi ling and adjustment of all claims arising under such insurance and obtain reliable and detailed estimates of the cost of repair or reconstruction of tile damaged or destroyed property. Repair or reconstruction, as used in this paragraph, means repairil~g or restoring tile property to substantially the same condition and location that existed prior to the fire or other casua I ty, (b) .R_epa.i.r__..a_D_d.Re,4_.o_r~_L[.uc_tioo. Any damage or destruction shall be repaired or reconstructed unless, within sixty (60) days after the casualty Member.~ holdi~g at least seventy-five (75~) percent of the to~l Association vote and the Declarant (so long as Ihe Declaran~ has an option unilaterally to subject additional property Io Ihis Declaration as provided in Arlicle IX), shall otherwise agree. If for any reason eilher the amoun~ of the insurance proceeds to be paid as a result of such damage or destruction, or reliable and detailed estimates of the cost of repair or reconstruction, or both, are not made available to the Association within such period, then th~ period shall be extended until such information shall be made available; provided, however, such extension shall not exceed sixty (60) days. No Mortgagee slmll have [l~e right [o parlicipale in the determination of whether damage or destruction shall be repairod or reconstructed. I1' the damage or des[ruction for which the insurance proceeds are paid is to be repaired or rec~n.~lr~,cted a~)rl such proceeds are not sulficient to defray the cosl thereof, the Board of Directors shall, without tile necessity o1: a vote of the Association's Members, levy a special assessment ngai~st all Owner,~ in proportion to tile m~mber of Units owned by such Owners. Additional assessments may I)e made ir) like manner at any time during or following the completion of any repair or reconstruction. If the funds available from insurance exceed the costs of repair or reconstruction or il tim improvements are I~ot repaired or reconstructed, such excess shall be deposited to the benefit of the Association. In lhe event that it should be determined by tile Association in the manner described above that the damage or destruction shall not be repaired or reconstructed and no alternative improvements are authorized, then and in that event the property shall be restored to its natural state and maintained as an undeveloped portion of the Common Property by the Association in a neat and attractive condition. Section 4. Damag~...an.d..Des.truction_-~_.lnsur.ed_by..Ow!3~rs. Tile damage or destruclion by fire or other casualty to all or any portion of any improvement on a Unit shall be repalred by tile Owner wi thin seventy-five (75) (lays after tile damage or destruction. However, where r, epairs c~nnot be completed wi thin seventy-five (75)(lays, they shall begin wi Illin the reqnired period and shall be diligently and continuously pursued until their completion. Alternatively, the Owner may decide to destroy and remove all improvements on tile Unit within seventy-five (75) days after such damage or destruct ion. Article VIII (~o[]d_e.!m!a_t.i ~_n_. If the taking involves a portion of the Common Property on which improvements have been constructed, then, unless within sixl. y (60) days after such taking. Members holding at least seventy-five (75%) percent of the Iotal Association vote and the Declarant (so long as the Declarant has an option unilaterally to subject property to this Declaration as provided in Article IX) shall otherwise agree, the Association shall restore or replace such improvements so t~ken on tile remaining land inclu(.led in the Common Property to Ihe e×te~t lands are available therefor. The provisions of Article VII, Section 3, above, applicable to Common Property improvements damage, shall govern replacement or restoration and the actions to be taken in the event that the improvements are not restored or replaced. Article IX A. 0 o e_x.~._t_j..o~o__o. [__A.dd iJ_[.~_a.!_. P._r._o. p e_r._t y. Sec t i on 1. Anne~.a~_i_op..~i..tllout._ App_r.o..v_a.l__Qf_..Memb_e.[sh.i p. with the consent of the owner thereof, Declarant shall have the unilateral right, privilege, and option from time to time at any time until December 1.998. to subject all or any portion of the real property described in Exhibit "C", attached hereto and by reference made a part hereof to the provisions of this Declaration and the jurisdiction of the Association by filing for record in the Office of the Clerk of the Superior Court of Fayette Counly a Supplementary Declaration in respect to the property being annexed. Any such annexatlon shall be effective upon the filing for record ol such Supplementary Declaration unless otherwise provided therein. ti) Dec_laran_t. As the owner thereof or, if not the owner, 1, -15- (ii) Equitable, Irt the event that Declarant has not purchased the property described on Exhibit "C" from The Equitable Life Assurance Society of the United States ("Equitable") on or before the date which is fourteen (14) months from the date on which this Declaration is recorded in tile Fayette Counly, Georgia records, Equitable, its successors and assigns, shall have the right at any time prior to the expiration ct Declarant's unilateral right to suhject property to this Declaration pursuant Io subsection fi) above and regardless of whether Equitable is the "Declarant." to unilaterally suhject the Exhibit "C" property to this Declaration by following the procedure outlined in subsection fi) above. Subjeclion of the Exhibit "C" property by Equitable shall not cause Equitable to be tile "Declaranl" under this Declaration unless it declares ilself Io he Declarant as provided in Article XII, Section 20 of this Dec larat ion. (b) The rights reserved unto Declarant and Equitai)le to subject additional land to the Declaral. ion shall not and shall not be implied or cnnstrued so as Io impose any obligalion upon Declarant or Equitable to subject any of such additional land to this Declaration or to the juri.~dictlon of the Association. If such additional land is not subjected to this Declaration. Declarant and Equitable~s reserved rights shall not impose any obligation on Declarant or Equitable to impose any covenants and restrictions similar to those contained herein upon such additional land nor shall such rights in any manner limit or restrict the use to which such additional land may be put by Declarant or Equitable or any subsequent owner thereof, whether such uses are consistent wi th tile covenants and restrictions imposed hereby or not. Section 2. Ann~at..i_on.W! th._Appr, oy. al. o_f. Membe. r_~hip. Subject to the consent of tile Owner thereof, upon tile affirmative vote or consent of Members holding a majority of the total Association vote and the Declarant (so I,n9 as tile Declarant has a~ optioo to subject additlm~al property to tile l.~eclarati(m as provi(led above), tile Association may annex other real property to tile provisions of this Declaration a~d the jurisdiction of tile Association by filing for record in the Office of Ihe Clerk of the Superior Court of Fayette County, Georgia, a Supplementary Declaration in respect to tile property being annexed. Any such Supplementary Declaration shall be signed by the President and Secretary of the Association, and any such annexation shall be effective upon tile filing for record of such Supplementary Declaration, unless otherwise provided therein. The time within which and the manner in which notice of any such meeting of the Members of the Association called for the purpose of determining whether additional property shall be annexed, and the quorum required for tile transaction ol business at any such meeting, is specilied in the By-Laws of tile Ansociat ion. Article Mo ~'_t g.a g ~e__P_ r_~yj..s 'file tollowing provisions are for tile benefit of holders of first Mortgages on Units in the Community. The provisions of this Article apply to both this Declaration and to the By--Laws, notwithstanding any other provisions c(mtained therein, Section I. Notices.of Action. An institutional holder, insurer, or g~arnntor of ,~ (ir.~t Mortgage, who provides written request to the Association (such request to state the name and address of such holder, inspirer, or guarantor and the Unit nt~mber) (therefore becoming an "el igible holder"), will be entitled to timely written notice of: (al any condemnation loss or any casualty loss which affects a material portion of the Community or which affects any Unit on which there is a tirst Mortgage held, insured, or guaranteed by such eligible holder; (bi any delinquency in the payment of assessments or charges owed by an Owner of a Unit subject to the Mortgage of such eligible holder, where such delinquency has continued for. a period ot' sixty (60) days; provided, however, notwithstanding this provision, any holder of a first Mortgage, upon request, is entitled to written notice from the Association of any default in the performance by an Owner o! a Unit of any obligation under the Oeclaration or [-~y-Laws o[ the Association which is not cured within sixty (60) days; (c) any lapse, cancellation, or material modification of any insurance policy maintained by the Association; or (d) any proposed action which would require the consent of a specified percentage of Mortgage holders. Section 2. Sp~e._ci.a/..!~Jl.L_MC_...Pro_v_i.s_.i_o!.~. So long as required by the Federal Home Loan Mortgage Corporation (The Mortgage Corporation) and so long as the U.S. Department of Housing and Urban Development ("HUD") is insu~i,~g or the Veterans Administration ("VA") is guaranteeing any Mortgage in the Community, the following provisions apply in addition to and not in lieu of the foregoing. Unless two-thirds (2/3) of the first Mortgagees or Owners other than the Declarant give their consent, the Association shall not: (al by act or omission seek to abandon, partition, subdivide, encumber, sell, or frans{er the Common Property which the Association owns, directly or indirectly (the granting of easements for public utilities or other similar purposes consistent with the intended use of the Common Property shall not be deemed a transfer within the meaning of this subsect i on ); (I)) change the method of determining the obligations, assessments, dues, or other charges which may be levied against an Owner; (c) by act or omission change, waive, or abandon any scheme of regulations or enforcement thereof pertaining to the architectural design or the exterior appearance and maintenance of Units and of the Common Property (The issuance and amendment of archilectural standards, procedures, rules, and regulations or use restrictions shall not constitute a change, waiver, or abandonment wi thin tile meaning of this subsection,); (el) fail to maintain fire and extencie(I coverage insurance, as required hy this Declaration; or (e) use hazard insurance proceeds for any Common Property losses for other than the repair, replacement, or reconstruction of such property. Nolhlng contained ir, Article X, Section 2, of this Declaration shall be construed to reduce the percentage vote that must otherwise be obtained under [l,e Declaration for a.y of the acts set out in this Section 2. First Mortgagees may, jointly or singly, pay taxes or other charges which are in default and which may or have become a charge against the Common Property and may pay overdue premiums on casualty insurance policies or secure new casualty insurance coverage upon the lapse of,an Association policy, and first Mortgagees malting such pnyments shall be entitled to i,u, ediate reimbursement from the Association. Section 3. No..P.r.iority. No provision el~ this Declaration or the By-Laws gives or shall be construed ns giving any Owner or other party priority over any rights of the first Mortgagee of any Unit in the case of distribution to such Owner of insurance proceeds or condemnation awards for losses to or a taking o! tile Common Property. Sect ion 4. N_otice...to..Asso. ciatjon. Upon request, each Unit Owner .~hall be obligated to furnish to the Association the name and address of the Ilolder of any mortgage encumbering such Owner's Unit. Section 5. Amendme~ts..by .B~)ard. Should the Federal National Mortgage Association or the Federal Home Loan Mortgage Corporation subseqHently delete Rny of their respective requirements which necessitate the provisions of this Article or make any such requirements less stringent, the I3oard. without approval of the Owners, may cause an amendment to this Article to be recorded to reflect such changes. Section 6. VA/HUD.Approval. As long as the Declarant has the rigl~t to appoint and remove olficers and directors o! the Association, the following actions shall require the prior approval of the VA (so long as the VA is guaranteeing any Mortgage in tile Community), and HUD (so long as HUD i.~ inst, ring any Mortgage in the Community): anuexation of additional property to the Community. except for annexation by Declarant or Equitable in accordance with Article IX, Section 1 hereof pursuant to R previously approved plan of annexation; mergers and consolidations; dedication of Common Property to any public entity; dissolution; mortgaging of Common Property, and material amendment of the Declaration, By-Laws or Articles of Incorporat ion, Section 7. Appli.c.abili..ty_of.Th.is At.ti. cl.e. Nothing contained in this Article shall be construed to reduce the percentage vote that must o[herwise be obtained under tile Declaration, By-Laws, or Georgia law for any of tile acts set out in this Article. -18- Section 8. Ea.i. lure..o.f.~Mgr_tgage.e..t~_RespQnd. Any Mortgagee who receives a written request from tile Board to respond to or consent to any action shall be deemed to have approved such action if tl3e Association does not ~eceive ~ written response from the Mortgagee within thirty (30) days of the date of the Association's request. Article XI Section 1. E~',sements_fp[ Er)crQachment and Ove. r. hang. There shall be reciprocal ai')purte~mnt easements for encroachment and overhang as between each Unil and such porlion or porlions o[ the Common Proper[y adjacent [hereto or as between ~djacent Units due lo the unintentional placement or settling or shifting of the improvements construc{ed, reconstructed, or altered thereon (in accordance with the term~ of this Declaration) to a distance of not more tha~ five (5) feet, as measured from any point on the con.on boundary between e~ch Unit and the adjacent portion of the Co.on Property or as between adjacent Units, as the case may be, along a llne perpendicular to such boundary at such point; provided, however, in no event shall an easement ¢or encroachment exist i~ such encroachment occurred due to willful conduct on the part o~ an Owner, tenant, or the Association. Sect ion 2. _Ea~.e_me.n._t_s__f.o..r_._U_se__an_d_.._Enj.oymen_t.. (Ri Every Owner of a Unit shall have a right and easement of ingress and egress, use and enjoyment in and to the Common Property which shall be appurtenanl Io and shall pass with the title to bis Unit, subject to the following provisions: (ii the right of the Association to charge reasonable admission and other fees for the use of any portion of the Common Property and to limit tim number o[ guests oi' Unit Owners and tenants who may use the Common Property; (ii) the right of the Association to suspend the voting' rights of a Unit Owner and the right of an Owner to use the recreational facilities in the Community, if any, for any period during which any assessment against his Unit which is hereby provided for remains unpaid; and, for a reasonable period of time for an infraction of the Declaration, By-Laws, or rules and regulations; purpose of improving construction, repair thereon, and give as conveyi~g nil or any the right of the Association to borrow money for the the Common Property, or any portion thereof, or for lng or improving any facilities located or to be located securlty for the payment of any such loan a mortgage portion of the Co~m~on Property; provided, however, the lien and encuml)ra~tce of any such mortgage given by the Association shall be subject and subordinate to any rights, interests, options, easements and privileges herein reserved or established for the benefit of Declarant, or any Unit or Unit Owner, or the holder o[ any Mortgage, irrespective of when executed, .given by Declarant or any Unit Owner encumbering any Unit or other property located wi thin the Comm~Jnity (any provision in this Declaration or in ~ny such Mortgage given by the Association to the contrary notwithstanding, tile exercise of any rigl~ts therein by the holder thereo~ in ~he evm~t of 3 defa~.~lt therennder shall not cancel or terminate any rights, easement~ or privileges herein reserved or established for the benefit of Declarant, or any Unit or Unit Owner, or the holder of any mortgage, irrespective o~ when executed, given by Declarant or any Unit Owner encumbering any Unit or other property located within the Community). No mortgage conveying all or a portion of the Common Property shall be effective unless an instrument agreeing to the Mortgage has been approved by Members holding at least two-thirds (2/3) of the total Association vote; arid (iv) the right of tile Association to dedicate or transfer all or any portion of tile Common Property subject to such conditions as may be agreed to hy the Members of tile Association. No such dedication or tra~sf~r shall be effective unless an instrument agreeing to such dedication or Iransfer has heen approved hy at least two-thirds (2/3) of the total Association and by Ihe Declarant (so long as the Declarant has an option m~ilaterally to subject additional property to this Declaration as provided in Arliele IX. Notwithstanding the above, Peachtree City, Georgia will not accept dedication of tile streets located in tile Common Property now or in the fulure. (h) Any Unit Owner may delegate his or her right of use and enjoyment in and to the Common Property and facilities located thereon to tile members of his family, his tenants and guests and shall be deemed to have made a delegation of all such rights to the occupants et any leased Unit. Section 3. Ea..s~e.m_en. ts_.f.o~..U.t_i_!.it_ie_s. There is hereby reserved to the Association blanket easements upon, across, above and under all property wi',hi~ the Commu~lity for access, ingress, e(.lress, installation, repairing, replacing, and maintaining all ulilities serving the Community or any portion thereof, including, but not limited to, gas, water, sanitary sewer, telephone and electricity, as well as storm drainage and any other service such as, but not limited to, a master television antenna system, cable television system, o~ security system which the Association might decide to have installed to serve the Community. It shall be expressly permissible for Ihe Associalion or its designee, as the case may be, to install, repair, replace, and maintain or to authorize the installation, repairing, replacing, and maintaining of such wires, conduits, cables and other equipment related to the providing of any such utility or service. Should any party furnishing any such utility or service request a specific license or easement by separate recordable document, the Board shall have the right to grant such easement, Section 4. Easement.fo~; Entry. The Association shall have an easement to enter into any Unit for emergency, security, safety, and for other pt~rposes reasonably necessary for ti~e proper maintenance and operation nf Ihe Community, which right may be exercised by tile Association's Board of Directors, officers, agents, employees, managers, and all policemen, firemen, ambulance personnel, and similar emergency personnel in the -20~ perform,'mce of their respective duties, Except in an emergency situation, entry shall only be during reasonable hours and after notice to the Owner, It is intended that this right of entry shall include (and this right of entry shall include) the right of the Association to enter a Unit to cure any condition which may increase the possibility of a fire or other hazard in the event an Owner !ails or refuses to cure the condition upon request by the Board, ,Section 5. Easement~_.!.o.Se. rve..Additj(m.~l..?..r, ope_r_ty. The Declarant and its duly authorized agents, representatives, and employees, as well as i ts successors, assigns, licensees, and mortgages, and The Equi table Life Assurance Society of the United States, its successors and assigns, shall have and hereby reserves a perpetual, nonexclusive easement over the Common Property for the purposes of ingress and egress, enjoyment, use, access, and development o~ the property described in Exhibit "C," wheth, er or not the Exhibit "C" Property is made subject to this Declaration, This easement includes, but is not limited to, a right of ingress and egress over the Common Property for construction of roads and for connecting and installing utilities on the Exhibit "C" property. Equitable or Declarant, their successors or assigns, shall be responsible for any damage caused to the Common Property as a result of vehicular traffic or utility installation or repair connected with the Exhibit "C" property but shall not be responsible for any costs associ3ted wi[l~ other maintenm~ce, repair, or replacement of [l~e Common Proper ry. Arlicle Xll Section 1. EnfQ_r_cemen.~. Each Owner and every occupant of a Unit shall comply strictly with the By-Laws, the rules and regulations, the use restrictions, as they may be lawfully amended or modified from time to time, and with tile covenants, conditions, anti restrictions set forth in this Declaration and in the deed to his or her Unit, if any. The Board o! Directors may impose fines or other sanctions, which shall be collected ~s provided herein for the collection of assessments. Failure to comply with this Declaration, Ihe By-Laws or the rules and regulations shall be grounds for an action to recover sums due for damages or injunctive relief, or both, maintainable by the Board o! Directors, on behalf of the Association, or, in a proper case, by an aggrieved Owner. Failure by the Association or any Owner to enforce any of tile foregoing shall in no event be deemed a waiver o! the right to do so thereafter. Section Z. Se!..f._-...H. el.p. In addition to any other remedies provided for herein, the Association or its duly authorized agent shall have the power to enter upon a Unit or any portion of the Common Property to abate or remove, using such force as may be reasonably necessary, any erection, thing or condition which violates this Declaration, the By-Laws, the rules and regulations, or the use restrictions. Unless an emergency situation exists, the Board shall give the violating Unit Owner ten (10) days' written notice of its intent to exercise self-lmlp. All costs of self-help, including reasonable attorney's fees actually incurred shall be assessed against the violating Unit Owner and shall be collected as provided for herein for the collection of assessme~lts. Section 3. D.u~a.tion. The covenants and restrictions of this Declaration shall run with and bind the Community, and shall inure to the benefit o[ and shall be enforceable by the Association or any Owner, their respective legal representatives, heirs, successors, and assigns, perpetually to the extent permitted by law. However, so long as Georgia law l imils the period during which covenants restricting lands to certain uses may run. any provision of this Declaration affected by the law shall run with and bind the land so long as permitted by the law, at[er which thne the provision.-, shrill be automatically extended for successive periods of ten (10) years, with tile signed written consent of at least two-thirds (2/3) of the record Owners and an attorney's atfidavit confirming ow.nership of the U~its or such lessor reqt, irement as provided in O,.C._G..A~.. § 44-5-60. A wrilten instrument reflecting approval must be recorded wi thin the year immediately preceding the beginning of a ten (10) year renewal period. Every pr~rchaser or grantee of any interest (including, wi thou[ l imi ration, a security interest) in any real property subject to this Declaration, by accepta~)ce of a deed or other conveyance, agrees that provisions of this Declaration may be ex[ended and renewed as provided in [bis Paragraph, Section 4. Amendment. This Declaration may be amended unilaterally at any time and from time to time by Declarant (a) if such amendment is necessary to bring any provision hereof into compliance with any applicable governmental statute, rule, or regulation or judicial determina[ion which shall be in con[l icl therewith; (b) if such amendment is necessary [o enable any reputable title insurance company to issue title insurm~ce coverage with respect to the Units subject to this Declaration; (c) if ~uch amm~dment is required by nn institutional or governmental lender or purchaser of mortg~fle loans, i~cluding, for ex~mple, the Federal Nation,al Mortgage Association or Federal Home Loan Mortgage Corporation, to enahle such lender or pt~rchaser to make or purchase mortgage loans on the Units subject to this Declaralion; or (d) if such amendment is necessary to enable any governmental agency or reputable private insurance company to insure mortgage [o~ns on the Units subject to this Declaration; provided, however, any such amendment shall not adversely aflect the title Lo any Owner's Unit unless any such Unit Owner shall consent thereto in writing, Further, so long as the Declarant has the right unilaterally to subject additional property to the Declaration, Declarant may unilaterally amend this Declaration for any other purpose; provided, however, any such amendment sha~l not adversely ~ffect title Lo ~ny Unit without the consent of the aJfected Unit Owner. In addition to the above, this Declaration may be amended upon the at lirmatlve vote or writlen consent, or any combination thereof, o! Members holding at least two-thirds (2/3) o! the total Association vote and the consent of the Declarant (so long as Declarant has the right unilaterally to subject additional property 1o this Declaration). Amendments to thi.~ Declaration shall become effective upon recordation in the Fayette County, Geor(jia records, unless a later et!active date is specified therein. -22- Section 5. _P.~r_tJ_tion. The Common Property shall remain undivided, and no Unit Owner nor any other Person shall bring any action for partition or division of the whole or any part U~ereof without tile written consent of all Owners of all portions of the propnrty located within the Community and without the written consent of all holders of all Mortgages encumbering any portion of the property, including, but not necessarily limited to, the Units located wi thin the Communlty. Sect ion herein, shall be of the masculine 6. Gende~r.__a.n._d_ G[.a~na_£. The singular, wherever used construed to mean the plural, when appllcable, and the use pronoun shall include tile neuter and feminine. Section 7. Se~/e_[ab.il.i_t.y. Whenever possible, each provision of this Declaration shall be interpreted in such manner as to be effective and valid, hut 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 applic~tlon of any provision wbicl~ can be given effect without the invalid provision or application, and, to this end, the provisions of this Declarati(m are declared to be severable. Section 8. (;apl;ions. the captions of each Article and Section hereof, as to the contents of each Arlicle ~nrl Section, are inserted only for convenience and are in no way to be construed as defining, limiting, extending, or otherwise modifying or adding to the particular Article or Section to which they refer. Section 9. P[epar. e..r. This Declaration was prepared by Linda B. Curry, Hyatt & f~hoads, P.C., 2400 Marquis One Tower, 245 Peachtree Center Avenue, N.E., Atlanta, Georgia 30303. Section 10. C.e~_veyances o.f.Common._~.[.~per_l:y.. The Association shall accept such conveyances of Common Property as are made from time to time to the Association by Beclarant. Section 11. P~rpe~g_i. ti~s. If any of the covenants, conditions, restrictions, or other frovisions of this Declaration shall be unlawful, void, or voidable for violation of the rule against perpetuities, then such provisions shall continue o~ly until twenty-one (21) years after the death of the last survivor of the now living descendants of Elizabeth, Queen of England. Section 12. Indemn.i.ficatio~. In accordance with tile Georgia Nonprofil Corporation Code, and to the full extent allowed by Georgia law, the Association shall indemnify every person who was or is a party or who is threatened to be made a party to any threatened, pending, or completed action, suit. or proceeding, whether civil, criminal, administrative, or investigative (other than an action by or in the right of the Association), I)y reason of the fact that such person is or was serving as a director or officer of the Association against any and all expenses, including attorneys' fees, imposed upon or reasonably incurred in connection with any action, suit, or proceeding, if such person acted in a manner reasonably -23- believed to be in or not opposed to the best interests of the Association and, with respect to any criminal action or proceeding, had no reasonable cause to believe his conduct was unlawful. Any indemnification shall be made by the Association only as authorized in a specific case upon a determination Ihat indemnificatioff otr the person is proper under the cl rcums tances. Sect ion 13. Co. Qs.t.r~c.t..jpr)...and.._Sa_Je_Per.i.od. Notwithstanding any provisions contained in this Declaration to the contrary, Declarant hereby expressly reserves unto itself and its successors and assigns a non-exclusive, perpetual right, privilege, and easement with respect to the Community for the benefit of Declarant, its successors, and assigns over, under, in, and/or on the Community, without obligation and without charge to Declarant, for the purposes of construction, installation, relocation, development sale, maintenance, repair, replacement, use and. enjoyment, and/or otherwise dealing with the Community and any other property now owned or which may i'n the future he owned by Declarant (such other property is hereinafter referred to as "Additional Property"). Tim reserved easement shall constitute a burden on the title to the Community and specifically includes, but is not limited to: ia) the right of access, ingress, and egress for vehicular and pedestrian traffic over, under, on, or ir] the Community; and the right to lie into any porlion of the Community with driveways, parking areas, and walkways; and the ri.qht to tie into and/or otherwise connect and use (without a tap-on or any other fee for so doing), replace, relocate, maintain, and repair any device which provides utility or similar services, including, without limitation, electrical, telephone, natural gas, water, sewer, and drainage lines and facillties constructed or instal led in, on, under, and/or over the Community; and (b) tile right to construct, install, replace, relocate, maintain, repair, use, and enjoy signs, model residences, and sales offices in the Community. (c) No rights, privileges, and easements granted or reserved herein shall be merged into the title of any property, including, without limitation, the COmmunity, but shall be held independent of such title, and no st, ch right, privilege, or easement shall be surrendered, conveyed, or released t, nless and until and except by delivery of a quit-claim deed from Declarant releasing such right, privilege, or easement by express reference thereto. Section 14. G_on.t.r_~_c._[.~ Ex..e.cu!e_d...P.ur__i__n.g._DecJ.~_ran_L_C~a!;.~._o_[. All contracts or leases executed by or on behalf of the Association prior to the expiration of Declarant's right to appoint the members of the Board of Directors as provided in Article III of tile By-Laws shall contain a termination clause permitting the Association to terminate the contract or lease at any time after the expiration of Declarant's right to appoint the members of the Board of Directors, without cause and without penalty, upon not more than ninety (90) days' written notice. -24- Sec t i on 15. Bo_._o.k_s_an¢._.R¢c..or__ds. (~) Inspect. iQo..by_Membe.~;s_a..nd..Mo, rtg~ge~s. Ttlis Declaration, the By-Laws, copies of rules and use restrictions, membership register, books of accounl, 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 his duly appointed representative and by holders, insurers, or guarantors of any first Mortgage at any reasonable time and for a purpose reasonably related to his or her interest as a Member or holder, insurer, or guarantor of a first Mortgage at the office o1' the Association or at such other reasonable place as the Board shall prescribe. (b) Rules...f.o.r....Ir).sp_ec_t.i_on. The Board shall establish reasonable rule.-, with respect to: ii) notice to be given to the custodian of the records; he made; and hours and days of tile week when such an inspection may (ii) payment of the cost of reproducing copies of documents, lc) !nsp¢¢_LjpO.._by_Djrec~ors. Every Director shall have the absolute right at any reasonable time to inspect all books, records, and documents of the Association and the physical properties owned or controlled by the Association. The right of inspection by a Director includes the right to make extra copies of documents at the reasonable expense of the Association. Section 16. Financial Review. A review of the accounts of the Association shall be made annually in the manner as tile Board of Directors may decide; provided, however, after having received the Board's reviewed [inancial statement at the annual meeting, by a Majority of the Association vote present, or represented by proxy, the Owners may require that the accounts of the Association be audited as a common expense by a public accountant. Upon written request of any institutional holder of a first Mortgage and upon payment of all necessary costs, such holder shall be entitled to receive a copy of an audited financial statement within ninety (90) days of the date o[ the request, Section 17, Notic. e of.~a, le or. Lease. In the event an Owner sells or leases his or her Unit, the Owner shall give to the Association, in writing, the name of the purchaser or lessee of the Unit and such other information as the Board may reasonably require. Section 18. VariAn. ces. Notwithstanding anything to the contrary contained in this Declaration, the Board of Directors or its designee shall be authorized to grant individual variances from any of the provisions of this Declaration, the By-Laws and any rule, regulation or use restriction promulgated pursnant thereto if it determines that waiver of application or enforcement of the provision in a particular case would not be inconsistent with the overall scheme ol development for the Community. -25- Section 19. ~Cq[[tY, The Association may but shall not be required to, provide measures or take ~ctions which directly or indirectly imf)rove sR{ety ~ tile Community, However, each Owner, for tllemselves and their tenants, guests, licensees, a~d invitees, acknowledges and agrees that the Association is not a provider of security and shall have no duty to ~)rovide security for the Community. It shall be the responsibility of each Owner to protect his or her person and property, and all responsibility to [)rovide security shall lie solely with each Owner. The Association shall not be held liable for any loss or damage by reason of failure to provide adequate security or ineffectiveness o! security measures undertaken. Section 20. Equ.[.~abl~_~ppoi~!iment..~.~cl.a.Ean.t. As of the date this Declaration is recorded The Equitable Life Assurance Society of the United States ("Equitable") is the owner of the property described on Exhibit "C" and Declarant has the right to purchase the Exhibit "C" property. In tile event that Declarant has not purchased the Exhibit "C" property on or before the date which is fourteenS14) months from the date on which this Declaration is recorded in the Faye[te County, Georgia records, then Equitable shall have the right to unilaterally declare itself the "Declarant" under this Declaration by recording an instrument to that effect in the Fayette County, Georgia records at any time prior to the expiration of Declarant's i~nilateral right to subject property to this Declaration pursuant to Article IX, Section l(a} of this Declaration. Upon tile recording of such art instrument I)y Equitable all rights of the former Declarant in and to the status of "Declarant" shall cease, it being understood that there shall be only o~e person or legal entity entitled to exercise tile rights and powers of the "Declarant" at any one point in time. In the event Equitable, or its successors or assigns, exercises this right il shall have no liability, responsibility, or obligation with regard to tile acts or omissions of the previous Declarant or Declarants. [SIGNATURES ON NEXT PAGE] EXHI B I T "A" E~e_f.i ~ i Lions The following words, when ,sed in this Declaration or in any Supplementary Declaration (unless the context shall prohibit), shall have the roi lowing meanings: Associat ion, ass i gns. "As~o~a. tion" shall mean and refer to The Fairways Community Inc., a nonprofit Georgia corporation, its successors and (b) "Board..o_f__Director_s" or "Board" shall mean the appointed or elected body of the Association, as applicable, having its .normal meaning under Georgia corporate law. Association, incorporated "By-.Laws" shall refer lo the By-Laws of The Fairways Community Inc., attached to this Declaration as Exhibit "D" and therein by this reference. (d) "_C.o__m_m..o__n_.P_r_oper__t.y" shall mean any and all real and personal property and easements and other interests therein, together wi th the facililies and improvements located thereon, now or hereafter owned by the Association for the common use and enjoyment of the Owners. (e) "Com_mu.~!j_t.y." shall mean and refer to that certain real property and interests therein described in Exhibit "B", attached hereto, and ti) such additions thereto as may be made by Declarant (or its Mortg,ngee or transferee, as provided in the Declaration) or Equitable by Supplementary Declaration of all or any portion of the real property described in Exhibit "C," attached hereto: and (ii) such ~dditions thereto as may be made by the Association by Supplementary Declaration of other real property. (f) "Cqmu.oj}y:-Wide_S.t. anda.rd" shall mean the standard of conduct, maintenance, or other activity generally prevailing in the Community. Such standard may be more speciilcally determined by the Board of Directors of tire Association. (g) "Deq!aEan.t" shall mean and refer to Fairways Village Development Corporation, a Georgia corporation, and the successors-in-title and assigns of Fairways Village Development Corporation provided any such successor-in-title or assign shall be designated as tire "Declarant" by Fairways Village Development Corporation, in an instrument recorded in the Fayette County, Georgia records; provided, however, The Equitable Life Assurance Society of Ihe United States shall have the right to unilaterally declare itself tt~e "Declarant" by recording an instrument in the Fayette County, Georgi~ records if the requirements of Article XII, Section 20 are met. th) "Bajo.ri.ty" means those eligible votes, Owners, or other group as the conlext may indicate totalling more than fifty (50%) percent of the Iotal eligihle number. (i) "Membe? shall mean a Person entitled to membership in tile Association. (j) "MoLtgage" means any mortgage, deed to secure debt, and any and all other similar instruments used for the purpose of conveying or encumbering real property as security for tile payment or satisfaction of an obligation. (k) "~o_rt.g._ag~__e" shall mean tile holder of a Mortgage. (I) "Owne.~" shall mean and refer to the record owner, whether one or more Persons, of the fee simple title to any Unit located within the Comm.nity. excluding, however, any Person holding.such interest merely as security for the perl'otmance or satisfaction ol any obligation. (m) "Person" means any n~tural person, as well as a corporation, join! venture, partnership (general or limited), association, trust, or olher legal entily. (n) "Un.i..t" shall mean any plot of land within the Community, whether or not improvements are constructed thereon, which constitutes or will constitute, after the construction of improvements, a single-family dwelling site as shown on a plat recorded or to be recorded in the Fayette County, Georgia, records. The ownership of each Unit shall include, and there slmll pass with e~ch IJnit as an appurtenance thereto, whether or not separately described, all of the right, title, and interest of an Owner in the Common Property. which shall include, without limitation, membership in the Association. Each tlnit shall for all p. rposes constitute real property which may be owned in fee simple and which may be conveyed, transferred, or encumbered in the same manner as any other real property. Each Owner shall be cai i I led to the exclusive ownership and possession o1' his or her Unit, subject !.u this Declaration. Each Owner shall have the right to lateral and r. ul.~jncent sui'.)l.~ort [or his or her Unit, and such right shall pass with the Un i t. (o) "Suppl.ement_a. ry..Declaration" means an amendment or supplement to this Declaration which subjects additional property to this Declaration or imposes additional restrictions and obligations on the property, or both. EXHIBIT "D" BY-LAWS OF THE FAIRWAYS COMMUNITY ASSOCIATION. INC. IIYAll' ,t, ~IlIOAPS. P.C. 2400 M,qrqi~i.q One Tower 245 Peac~l~ee Center Avenue? N.E. At_l~.nta. Georgia 30303 (404) G59-6600 - TABLE OF CONTENTS - Il Page NAME, MEMBERSHIP, APPLICABILITY, AND DEFINITIONS 1. Name ........................................................ 1 ~.'~ Membership .................................................. t 3. Definitions ................................................. 1 ASSOCIATION: MEETINGS, OUORUM, VOTING, PROXIES 1. Place of Meetings ........................................... 1 2. First Meeting and Annual Meetings ........................... 3. Special Meetings ............................................ 1 4. Notice of Meelings .......................................... 2 5. Waiver of Notice ............................................ 6. Adjournment o[ Meetings ..................................... 2 7. Voting ...................................................... 2 8. Proxies ..................................................... 2 9. Qoorum ...................................................... 2 BOARD OF DIRECTORS: NUMBER, POWERS, MEETINGS A. Compo_s_j_t_i.O.~l_a.o..d_~e Le..c I. Governing Body; Composition ................................ 3 2. Directors Al)pointed by Declsrant ........................... 3 3. Number of Directors ........................................ 3 ,4. Nomination of Directors .................................... 3 5. Election and Term o1' Office ................................ 3 6. Removal of Directors ....................................... 4 7. Vacancies .................................................. 4 8, Organization Meetings ...................................... 4 9. Regular Meetings ........................................... 4 10, Special Meetings ........................................... 4 11. Waiver of Notice ........................................... 5 1~. Quorum of Board o{ Directors ............................... 5 13. Compensation ............................................... 5 14. Open Meetings ............................................. 5 '15. Executive Ses~im~ ................................... 5 16. Action Without A Formal Meal iht! ............................ 5 17. Telephonic Particlpatim~ ................................... 6 C. P.o_w..e r.s 18. Powers ..................................................... 6 '19. Management Agent ........................................... 7 20. Borrowing .................................................. 7 21. Fining Procedure ........................................... 7 P_._a~g e_ IV. OFFICEnS Officers .................................................... 8 Election, Term of Office, and Vacancies ..................... 8 Removal ................................. ; ................... 8 President ................................................... 8 Vice President .............................................. 8 Secretary ................................................... 8 Treasurer ................................................... 8 Resignation ................................................. 9 V. COMMIT1EES 1. General ..................................................... 9 VI. MISCELLANEOUS 1. Fiscal Year ................................................. 9 2. Parliamentary Rules ......................................... 9 3. Conflicts ................................................... 9 4. Amendlnent ................................................... 9 0607g--10-12-90 BY-LAWS OF THE FAIRWAYS COMMUNITY ASSOCIATION, INC. Article I Section 1. N_a!.n_e. The name of tim Association shall be The Fairways Community Association, Inc., (hereinafter sometimes referred to as the "Associat ion"). Section 2, Member_ship. 'lhe Association shall have one class of membership, as set forfh in that Declaration of Covenants, Conditions, and Res I r icl ions Ior fha Fat rway,~, ( this Dec lara! ion, as amended, renewed, or extended from time to time, is hereinafter sometimes referred to as the "Declaralion"), the terms of which pertaining to membership are specifically incorporated hy reference herein. Section 3. De[.initim~s. 1he words used in these By-Laws shall have the same meaning as set forth in the Declaration, unless tile context shall prohlbi[. Article II A. ~ ~o_c_j.a_~_ Lo_ri. :____M _e e_[_ ;._n g ~, __Q_u_o.~'_u.!,_,_ y_o_~ j _[) g .,__P_ Section 1. P..I. ac_.~_p.[_.Meeti_ngs. Meetings of the Association shall be held at the principal office of tile Association or at such other suitable place convenient to the Members as may be designated by the Board of [.)irector,~, either in the Community or as convenient thereto as possible and practical. Section 2. F.ifs.t.Meet.ingaf}d_A0_n.u.a.I.._Me.e_tings. An annual or special meeting shall be held within one (1) year from the date the Declaration is recorded. Annual meetings shall be set by the Board so as to occur no later Ihan sixty (60) days after the close of the Association's fiscal year. If the (lay for lhe annual meeting of the Memhers is a legal holiday, the meeting will Ire held at the same hour on the first (Jay following which is not a legal holiday (excluding Saturday and S~mday). Section 3. Speci_.a.!.Mee!ings. lh~ P,-esi,lenl may call special meelings. In addition, it sh.~ll I~e lire rhlt\l DJ the Presiclenl to call a special meeting of the Association it s~ rlirected by resolution of a Majority of the Board of Directors or upo~ ~ peti tim~ signed by Members holding at least lwenty-five (25%) i)ercent of the total Association vote. The notice any special meeting shall state the date, time. and place of such meeting and the purpose thereof. No b-siness slmll be transacted at a special meeting, except As stated in the Section 4. No..t..i._c.~...o.]_.Mee.t_i[!gs. It sllall be the duty of the Secretary to mail or to cause to be delivered to the Owner of record of each Unit a notice of each annual or special meeting of tile Association stating the purpose of tile special meeting, as well as the time and place where it is to be held. If an Owner wishes notice to be given at an address other than his or her Unit. he or she sllall have designated by notice in writing to the Secretary such other address. Tile mailing or delivery of a notice of meeting in the manner provided in this Section shall be considered service of notice, Notices shall be served not less than ten (10)nor more than thirty (30)days before a meeting. Section 5. ~l.a..i.y_er__o._f._~ot_i.c.e. Waiver of notice of a meeting of the Members shall be deemed the equivalent of proper notice, Any Member may, in writing, waive notice of any meeting of the members, either before or after such meeting. After'dance at a meeting by a member, whether in person or by proxy, shall be deemed waiver I)y such member of notice of lhe time, (late, and place thereof, unless such member speciflcally objects to lack of proper notice at tile time the meeting is c~lled to order. Section 6. _A..d.j~q_ur_nme[~.~_._o_~ ~ee~t.j.ngs. I1' any meetings of tile 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 transacted at the meeting originally called may be transacted without further notice. Section 7. V..p_t_ing. The voting rights of the Members shall be as set forth in the Declaration, and such voting rights are specifically incorporated herein. Section 8. P_r. ox..i~. At all meetings of Members, each Member may vote in person or by proxy. Ali proxies shall be in writing, dated, and filed with the Secretary before the appointed time of each meeting. Every proxy shall be revocahle and shall automatically cease upon conveyance by the Member ol~ his or her Unit, or upon receipt of notice by the Secretary of the death or j~dicially declared incompetence of a Member, or of written revocation, or upon Ihe expiration of eleven (11) months from the date of the proxy, ,C, ection 9. Ou.9.r. um. The presence, i~ pertain or by proxy, of Members hol~i ~(j at least [we,~t.y-i'ive (257~;) t~el'~;el'~l ,~1' lh¢~ Iotnl eligible Association v~tes appertain sm I constil~t~ ~ q,~,r~m, nt ~11 meetings of the Association. The Me, ~ers present at n (, ly ~:.qllPrl ,,~ helH ~e~linf.I .ql which a quorum is presen-I may cor~l int~e to do .)uslness ~l. il re.l jo,,, ~e~t, notwi[hstanding tim withdrawal of enough members to leave less than a quorum. Article Ill B..q_a_r ~l_._o.[_D_.i _r..~$;_t_o_r_ ~..:___.N_ u ~tbe. r..,_.~ ~.w.~_r ~_,.__M ~ ~ .t_Ln g s. Section I. .Gov_e_r.n..i.r)g._B.o.d.y.;._Cpmpo..sj.i.ti.or). The affairs of the Association shall be governed by a Board of Directors. Except as provided in ,gection 2 of this Article, the Directors must reside in the Community and shall be Members or spouses of such Members; provided, however, no Person and his or her spouse may serve on the Board at tile same time. Section 2. Di.[ec.t_o[s....Appo_.in.te.d._.by_Pec.la. ra. nt. Declarant shall have tile right to appoint or remove all members of the Board of Directors and all others of tile Association until such time as the first of the following events shall Demur: (at the expiration of [ire (5) years after the date of the recording of tile Declaration; (bt the date on which forty-one (41) Units have heen conveyed to Persons other than the Declarant; or (ct the surrender by Declarant in writing of tile authority to appoint and remove directors and officers of the Association. Each Owner, by acceptance of a deed to or other conveyance of a Unit, vests in Declarant this authority to appoint and remove directors and officers of the Association. The directors and officers appointed by tl~e Declarant need not be Owners or residents in the Community. Tile names of the initial directors selected by the Declarant are set forth in the Articles of Incorporation of the Association. Section 3. Numbe[...ol:.Di.rectors. lhe Board shall consist of three (3) to ~ive (5) members, Ihe exact number to be set. by the Declarant. Sec t i on 4. nomin3terl from the f if such a co~t~nittee reasonRb I e oppor tun i to sol icit votes. Nom_i_nat i..o~!..g_f.D.i.[e.c.tAr_s. Elected Di rectors shall be Ioor ~nd may also be nominated by a Nominating Committee, is established by the Board, All candidates shall have a ty to communicate their qualifications to the Members and Section 5. _E.[eC_~_ion..~od.T.~rm_o.f._.O[f. iq_e. Not later than thirty (30) days after termination of the Declarant's right to appoint directors and officers as described in Section 2 of this Article, the Association shall call a meeting to be held at which Owners shall elect all of the directors. The term of a Majority of the directors shall expire two (2) years after the first anm.ml meeting roi lowing termination of the ffeclprant's right to appoint directors, and tt~e term of the rem31nd~r ~,l lhe rllrectnrs shall expire one (I) year after that ~n1~u3[ meeting,s, k~ ~1,~ ~t,~n~i,,,~ ,I Hm first term of olfice o[ each member o[ the initial elef:ted ltr,~:H ,~1 liire(~Ir)rs, a successor shall be elected ~o serve for a term ol Iw~ fL') reties. ~he members o[ the Board of Directors shall hold of[ice unlil thei~ respective successors shall have been elected by the AssociAtion. At each annual meeting of the membership, directors shall be elected to succeed those directors whose terms are expiring. All eligible Members of the Associatio~ shal~ vote on all directors to be e{ected, and the candidate(s) receiving the most votes shall be elected, Section 6. _R.~m._o.y_8!_o_.[_..Di__r~c.t_o,r.s. At any regular or special meeting of the Association duly called, any one or more of tbe members of the Board of Directors may be removed, with or without cause, by Members holding at least a Majority vote of the total Association Vote and a successor may then and there be elected to fill the vacancy thus created. A Director whose removal has been proposed by the Owners shall be given at least ten (10) days' notice of the calling of the meeting and the pt, rpose thereof and shall be given an opportnnity to be heard Rt the meeting. Additionally, any Director who has three (3) consect~tive mmxcused absences front Board meetings or who is delinquent in the payment of an assessment for more than tw.enty (20) days may · I)e removed by a Majority vote of the Directors at a meeting, a quorum being present. This Section shall not apply to Directors appointed by Declarant, Section 7. V~ac_a~_ci..e_s. 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, even Iho.gh less than a quorum, at any meeting ot tile Board of Directors. Each Person so selected shall serve the unexpired portion of the term. Section 8. _O._r. gan_.i_z~a._t.ip_n.._~._e.e_.t.i.~g_s. The first meeting of the members of Ihe Board ol~ Directors following each annual meeting of the membership shall be held within ten (10) days thereafter at such time and place as shall be fixed by tile Board. Section 9. I~{~gu_Jar. Meetings. Flegular meetings of the Board of Directors may he held at such time and place as shall be determined from time to time by a Majority of the Directors, hut at least four (4) such meetings slmll he held ri. ring each i~iscal year with at least one (1) per quarter. Notice of the regular schedule shall constitute sufficient notice of such mae t i ngs. Section 10. Special Meetings. Special meetings of the Board of Directors shall be held when requested hy the Pre.~ident, Vice President or by any two (2) Directors. The notice shall specify the time and place of the meeting and the n:~ture of ¢ny special bnsiness tn be considered. '[he notice slmll l)e given Io each Directs,' by nl~e of Ihe fnll~wi~] methods: (a) by personal delivery; (h) writlen m)~i,:~ hv li,~1 cl:~s.~ mail, postage prepaid; (c) I)y I. elephone commtmi(.-.atirm. ~ithe, Hi,,~:l IV I,) the l)i'rector or to a Person at the Director's home or office who wot, Id reasonably be expected to communicate s,.,ch not ice promptly to lite Director; or (d) by telegram, charges prepaid. All snch notices shall be given or sent to the Director's address or telephone number as shown on the records of the Association. Notices sent by '-4-- first class mail sl~all I)e deposited i~to a United States mailbox at least four (4) {lays before tile time set for the meeting. Notices given by personal delivery, telephone, or telegraph company shall be given at least forty-eight (48) hours before the time set for the meeting. Section II. Waive. r. g_f_NO.'~ice. The transactions of any meeting of the Board of, Directors. however called and noticed or wherever held, shall be as valid as thougl~ taken at a meeting duly held after regular call and notice, if Ca) a quorum is present, and Cb) either before or after the meeting, each of lhe Directors not present signs a written waiver of notice, a consent to holding the meeting, or an approval of the minutes. 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, bet,ore or at its commencement about the lack of adequate notice. Section 1;~. Ou.0. rum. P.f._B..o:a_rd.._o.[...Di.recto. rs. At all meetings of the Board of Directors, a Majority of, the Directors shall constitute a quorum for the tran.~action of business, and the votes of a ~ajority of the Directors present at a meeting at which a quorum is present shall constitute the decision of the Board of Directors. A meeting at which a quorum is initially present may continue lo transact business, notwithstanding the withdrawal of Directors, if any action taken is approved by at least a Majority of the required quorum l,or that meeting. If any meeting cannot be held because a quorum s not pr'asahi, a Majority of tile Directors who are present at such meeting may adjourn the meeting to a time not less than five (5) nor more than thirty (30) clays from the time that the original meeting was called. At such adjourned meeting at which a quorum is present, any business which might have been transacted at the meeting originally cai led may be transacted without further notice. Section 13. Cqmp.~.n.s~tion. No Director shall receive any cuml)ensation from the Association for acting as such unless approved by Members holding a Majority of the total Association vote. Section 14. Opeq_..Mee.t.i[)gs. Ali meetings of the Board shall be open to all Members, but Members other than Directors may not participate in any discussion or deliberation unless expressly so authorized by the Board. Section 15. E.~.e(;;~t.i.y.~....Se~si_or~. 1he Board may adjourn a meeting and reconvene in e.xecutive sessio~ to discuss ~nd vote upon personnel matters, liligation in which the Association is or may become involved, and orders of b.siness of, a siml lar nature. The ~l~re of anv and all business to be consid~rP.d in executive session slmll [ir~t I~R remora]ced in open session. Section lO. AC.l. lon_Wltbo,_,[ ^ F~.,tmal Mee~i!~g. Any action to be taken at a meeting of, the Directors o,' a-v ~{:ll,)~ I ).31 may be taken at a meeting of tile Directors may be taken without a meeting it' a consent in writing, setting forth the action so taken, shell be s gna{ by a I of the Directors. -.5- Section 17, ]'.e. lepl).oni..c_..P, ar.ticipa_t.j.on, One or more directors may parllclpate in and vol. e during any re.qular or .~pecial meeting of the Board by telephone conference c, al l or slmilar communication equipment by means of which all persons participating in II~e meeting can hear each other at the same time, and those directors participating by telephone shall be deemed to be present at such meeting l,or quorum and other purposes, Any such meeting at which a quorum participates shell constitute a regular meeting of the Board, C. P.p_W._e_r.s_~o_d D_u._tj_e_~. Section 18. .P.'_gt~er_~. Ihe Board of Directors shall be responsible for the al'fairs oi: 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 are not by the Declaration, Articles, or these By-Laws directed to be done and exercised exclusively, by the Members. In addition to the duties imposed by these By.-Laws or by any resolution of the Association that may hereat:ter be adopted, the Board of Directors shall have the power to and be responsible Ior the following, in way of explanation, but not limitation: (a) preparation and adoption of an annual budget in which there shall be established the contribution of each Owner to the common expenses; (b) making assessments to defray the common expenses, establishing the means and melhods of collecting such assessments, and establishing the period ol: the installment payments o1' the annual assessment; (c) providing for tt~e operation, care, upkeep, and maintenance of ,~II area.~ which are the maintenance responsibi ity oir the Association; (d) designating, hiring, and dismiss ng the personnel necessary for the operation of the Association and, where appropriate, providing for the compensation of such personnel and {or the purchase of equipment, supplies, and material to be used by such personnel in the perl,ormance of their duties; (e) collecting the assessments, depositing the proceeds thereof in a bank depository which it shall approve, and using the proceeds to administer the Association; making and amending use restrictions and rules and regulations; {g) opening o! bank aceot,nl.~ (',ri hehal f oJ tile Association and designaling the signatorie?, requilerl: I'll) enl'orcing by let. iai Im~u~n Ih,~ pr~,vir:i,mn 01' the Declaration, Ihese By-.Laws, and the rules m~d ~e~IHInl i~m~,~ ad.pled by it, and bring any proceedings which may I)e irlsliluted on hehal t ol or against the Owners COl~Cer~ing the Association; '6'- fi) obtaining and carrying insurance against casualties and l labilities, as provided in Ihe Declaration, anti paying the premium cost thereof; (j) paying the cost of all services rendered to the Association or its Members which are not directly chargeable to Owners; (k) keeping books with detailed accounts of the receipts and expenditures affecting the Association and its administration, and specifying the maintenance and repair expenses and any other expenses incurred; and (I) contracting with any Person for the performance of various duties and functions. The Board shall have the power to enter into conunon management agreements with trusts, certdominiums, or other associations. Any and all functions of the Association shall be fully transferable by the Board, in whole ~r in part, to any other entity. Section '19. Managemeqt_.Agent. Tile Board of Directors may employ for the Association ~ professional management agent or agents at a compensation established by the Board of Directors to perform such duties and services as tile Board of Directors shall a~thorize. The Declarant or an affiliate of the Declarant may be employed as managing agent or Manager. The term of any manegeme~t agreement shall not exceed oeo (1) year and shall be subject to termination by either party, without cause and without penalty, upon ninety (90) days' written notice. Section 20. Borrowi!)g. The Board of Directors shall have the power to borrow money for the purpose nf repair ()r restoration of the Common Property and facilities without tile approval of tile Members of the Association: provided, however, tile Board shall obtain membership approval in the same manner as for special assessments, in the event that the proposed borrowing is for the purpose o[ modifying, improving, or adding amenities, and the total amount o[ such borrowing exceeds or would exceed Ten Thousand ($10,000.00) Dollars outstanding debt at any one time. Section 21. E.{.p.iog..~ro~.~e. The Board shall not impose a fine (a late charge shall not constitute a fine) unless and until the following procedure is followed: fa) ~o~t_ic..e_. Written notice shall be served upon the violator spe(: i lying: fi) the nature of the ~/ioln!ion ;~r~rl the fine imposed; (ii) lhnt the vi,;,l~l,,, tony..,ilhin ten ~'10) clays from the date o1' the notice, request a hearing ,egn~ding Ihe line imposed; (iii) the name, address and telephone number of a person to contact lo challenge the tine; (iv) that any statements, evidence, and witnesses may be produced hy the violator at the hearing; and fy) that all rights to have the fine reconsidered are waived if hearing is not requested within ten (10) days of the date of the notice. (b) H~.~J.~og'. If a hearing is requested, it shall be held before the Board in executive session, and the alleged violator shall be given a reasonable opportunity to be he~rd, Tile minutes of the meeting shall contain a written statement of the results of the hearing, Article IV Of.[..i.c_e[.s Section I. Of.t~i.c.~.r._s. The officers of the Associa(ion shall be a President, Vice President, Secretary, and Treasurer, Any two or more offices may be held by the same Person, excepting tile offices of President and Secretary. 1he President and Treasurer shall be elected from among the members of the Bo.~rd of Directors. Section 2. E.le..cti..on.,.._.T.e.~;m_~)J_.Of__fi~c.e.,. and_Vac.[~pci, es, The officers of the Association shall be elected annually by the Board of Directors at the first meeting of the Board o1' Directors following each annual meeting of the Member.~. A vacancy in Rny office arising because of death, resignation, removal, or otherwise may be filled by tile Board of Directors for the unexpired portion of the term. Section 3. .R._e.m_o._v_a.[. Any officer may be removed by the Board of Directors whenever, in its judgmenl, the best interests of the Association will be served thereby. Section 4. P.res.i_den..t. The President shall be the chief executive officer of the Association and shall preside at all meetings of the Association and of the Board of Directors. The President shall have all the general powers and duties which are incident to the office of the president of a corporation organized under the Georgia Nonprofit Corporation Code. Section 5. ~j~._Er~s. id~r)~. The Vice President shall act in the President's absence and shall have all powers, duties, and responsibilities provided for the President when so acting. Section 6. ,Secr.eta.r.y. The ;;~,~,relnrv ~hnll keep the minutes of all meelings of the Association ~nd o[ Ihe B-etd -I r~ire~lors and shall have clmrge of snch I~ooks and psImr~ ~ Ih¢ H,,nrrl ,,{ I)irec[ors may direct and ~hall, in generRI, perform all duties incident to the office of the secretary o[ a corpor~tlon organized in accordance with Georgia law. Section 7. _Tr__e_a..s.u_r_e_r. The Treasurer shall have the responsibility for the Association's funds and sec~]rities and shall be responsible for keeping ft~l[ and ~ccur~te {inanci~{ records ~nd hooks of account showing all -8- receipts and disbursements, for preparing all required financial statements and tax returns, and for the deposit of all monies and other valuable effects in the name of the Association or the managing agent in such depositories as may from time to time be designated by the Board of Directors. Section 8. _t_R_e%igna.t...~gn... Any officer may resign at any time by giving written notice to the Board of Directors, the President, or the Secretary. Such resignatio,~ shall take effect on the date of the receipt of such noti~.e or at any later time specified therein, and unless otherwise specified therein, the acceptance of such resignation shal not be necessary to make it effective. Article V Section 1. .Gener_~,l.. Cormnittees to perform such tasks and to serve for st~ch periods as may be desig~lated Ily the Board are hereby authorized. Each committee shall be composed and shall operate in accordance with the term~ of the resolution of the Board of Directors designating the committee or with roles adopted by the Board of Directors. Article VI Section 1. F_i.s..ca.! Year. The fiscal year of tile Association shall be determined by resolution of the 8oard. In the absence of such a resolution, the fiscal year shall be the calendar year. Section 2. ~a.rl_Lamentar~..B~L!~$. Rob~r.t~..~!.es__o_f_.~E~.~E (current edition) shall govern the conduct o[ all Association proceedings, when not in conflict with Georgia law, the Articles of Incorporation, the Declaration, these By-Laws, or ruling made by the Person presiding over the proceeding. Section 3. ~OR~].~.q.t~. If there are conflicts or inconsistencies between the provisions of Georgia law, the Articles of Incorporation, the Declaration, and these By-Laws, the provisions of Georgia'law, the Declaration, the Articles of Incorporation, and the By-Laws (in that order). shall prevail. Section 4. A.men__d.!n..en_t. These. By--t. aws mav be .amended uni lateral ly at any llme and from time to lime by De(:la~Rnl (a) if an amendment is necessary lo bring any provision into coml~li~mm wi Ih 3r~v 2ppllnal)le governmental statute, rule. or regul~l, ion ~ i~rllf:i-~l ,l~termJnallon with which it is in conflict; (b) if an amendme~l is nee. es.--a~v Io enahle any reputable title insurance company to issue title insttrance coverage with respect to the Units suhject to the Declaration; (c) if an amendment is required by an institutional or governmental lender or purchaser of mortgage loans, including, for example, tire Federal National Mortgage Association or Federal -9- Home Loan Mortgage Corporation, to enable the lender or purchaser to make or purchase Mortgage loans on the U,~its subject to the Declaration; or (d) if an amendment is necessary to enable any governmental agency or reputable private insurance company to insure Mortgage loans on the Units subject to the Declaration. However, any such amendment shall not adversely affect the title to any Ownerts Unit unless any Unit Owner consents to the amendment in writing. Further, so long as Declarant has the right unilaterally to subject additional property to the Declaration as provided in Article IX, Declarant may unilaterally amend these By-Laws for any other purpose; provided, however, any such amendment shall not adversely affect tlr lo to any Unit without the consent o[ the a!fected Unit Owner. In acldl t ion to the above, these By-Laws may be amended upon the affirmative vote or written co,~sent, or any combination of affirmative vote and written consent, ol~ Members holding at Feast a Majority.of the total Associatlon vote and the consent ot~ the Declarant (so long as Declarant has an option ~_milaterally to subject additional property to the Declaration as provld¢.d in Artlcle IX o~ th~. I)eclaration). Amendments to these By-Laws shall become effective upon recordation, L, nless a later effective date is specified in the amendment. No provision of these By-Laws which reserves or grants .~pecial rights to the Declarant shall be amended without the Declarant's prior written consent so long as the Declarant owns any property in the Community, or subject to annexation to the Community, primarily for development and/or sale. Notwithstanding the above. VA and HUD shall have the right to veto amendments to these By-Laws for as long as the Declarant has the right to appoint directors and officers of the Association under Article III, Section 2 o( these By-Laws. 0607g .... 10/12/90 -I0-