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HeritageAfter recording, pleaee return Young & Young, P.C. 181 Fourteenth Street, N.E. Second Floor Atlanta, Georgia 30309 DECLARATZON OF PROTgCTZVB C~VBNAHTS FOR THE HERTTAGIg YOUNG & YOUNG, P.C. 181 Fourteenth Street, N.E. Second Floor Atlanta, Georgia 30309 (404) 892-0237 56 Boo~ 942 PA~E ~- ~ticle I. ~I. III. IV. VI. TABLE OF CONT~.NTS - ~gct ion DEFINITIONS PROPERTY SUBJECT TO THIS DECLARATION Property Hereby Subjected To This Declaration O~her Property ASSOCIATION MEMBERSHIP AND VOTING RIGHTS 1. Membership 2. Voting ASSESSMENTS 3= 4. 5. 6. Purpose of Assessment Creation of the Lien and Personal Obligation for Assessments Computation Special Assessments Lien for Assessments Effect of Nonpayment of Assessments: Remedies of the Association Date of Commencement of Annual Assessments/ Assessment Obligation of Declarant Specific Assessments Budget Deficits During Declarant Control MAINTENANCE Association's Responsibility Owner's Responsibility Party Walls and Party Fences USE RESTRICTION AND RULES 1. General 2. Use of Lots 3. Signs 4. Vehicles 5. Leasing 6. Occupants Sound 7. Animals and Pets 8. Nuisance 9. Unsightly or Unkempt Conditions 10. Architectural Standards 11. Antennas 12. Gardens, Basketball Goals, Etc. 13. Tree Removal 14. Lighting lS. Drainage 16. Sight Distance at Intersections 17. Clotheslines, Garbage Cans, Woodpiles, Etc. 18. Subdivision of Lot 19. Guns 20. Solar Devices 21. Fences 22. Exterior Colors 23. Mailboxes 24. Detached Structures 25. Entry Features and Street Signs 26. Above Ground Pools ~aqe 1 1 1 1 2 2 2 2 2 3 3 3 3 4 6 6 7 7 7 7 7 8 8 8 8 8 8 9 9 10 10 10 10 10 10 10 10 11 11 11 11 11 Article VII · VIII. IX. XI. XII · ~ection INSURANCE AND CASUALTY LOSSES 2. 3. 4. Insurance Damage and Destruction -- Common Property Damage and Destruction -- Lots Insurance Deductible CONDEMNATION ANNEXATION AND WITHDRAWAL OF PROPERTY Unilateral Annexation By Declarant Other Annexation Withdrawal of Property MORTGAGEE PROVISIONS 2. 3. 4. 5. 6. 7. Notices of Action No Priority Notice to Association Amendments by Board VA/HUD Approval Applicability of Article X Failure of Mortgagee to Respond EASEMENTS 2. 3. 4. 5. 6. 7. Easements for Encroachment and Overhang Easements for Use and Enjoyment Easements for Utilities Easement for Association Maintenance Easements for Maintenance and Repair Easement for Entry Easements for Entry Features and Street Signs GENERAL PROVISIONS 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. 12. 13. 14. 15. 16. 17. 18. 19. Enforcement Self-Help Duration Amendment Gender and Grammar Severability Captions Preparer Conveyance of Common Property by Declarant to Association; Assignment of Contracts Perpetuities Indemnification Construction and Sale Period Book~ and Records Financial Statements Notice of Sale or Lease Agr~ntm Variances Litigation Implied Rights Paq9 11 11 13 13 14 14 '14 14 14 15 15 15 15 15 15 16 16 16 16 16 17 17 18 18 18 18 18 19 19 19 2O 2O 20 2O 20 2O 2O 21 22 22 22 22 23 23 23 Exhibit #Ca TAB~.~- Or EXHrB~TS BO0',( ~ 4 2 P~$E 5 G-I Definitions Property Submitted Additional Property Which Can Be Unilaterally Submitted by Declarant Bylaws of The Heritage Community Association, Inc. DSC:X.J..EJ~XON 01f P~.O'I'gC~XV~ COVBHAHTS FOR ~ mXTAGg THIS DECLARATION is made on the date hereinafter set forth by John Wleland Homes, Inc., a Georgia corporation (hereinafter sometimes called "Declarant"). Backcround Statement Declarant is the owner, or if not the owner has the written consent of t~e owner, of the real property described in Article II, Section 1 of this Declaration. Declarant desires to subject the real property described in Article Il, Section i hereof to the provisions of this Declaration to create a residential con,unity of single-family housing and to provide for the subjecting of other real property to the provisions of this Declaration. NOW, THEREFORE, Declarant hereby declares that the 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 thereof. Article ! Definitions Unless the context shall prohibit, certain words used in this Declaration Shall be defined as set forth in Exhibit "A" attached hereto and by reference made a part hereof. Article Z! pFooertv SubdectTgTh£s Declaration Section 1. Property Hereby Subdected To This Declaration. The real proper~y described in Exhibit "B" attached hereto and by reference made · part hereof i8, by the recording of this Declaration, subject to the covenants and restrictions hereafter set forth and shall be held, transferred, sold, conveyed, used, occupied, and ~ortgaged or cthe~ise encumbered subject to this Declaration. Section 2. Other Property. Only the real property described in Section 1 of this Article II is hereby made subject to this Declaration; provided, however, by one or more Supplementary Declarations, Declarant and the Association have the right, but not the obligation, to subject other real property to this Declaration, as hereinafter provided. 9 4 2 5 6 6 Article XXI '~SSci&tton Membersh&D and Vot&n~ Rights Sect&on 1. Membersh&D. Every Person who is the record owner of a fee or undivided fee interest in any Lot that is subject to this Declaration shall be dee~ed to have a membership in the Association. The foregoing is not intended to include Persons who hold an interest merely as security for the performance of an obligation, and the giving of a security interest shall not terminate the O~ner's membership. No O~ner, whether one or more Persons, shall have more than one membership per Lot. In the event of multiple Owners of a Lot, votes and rights of use and enjoyment shall bo as provided in this Declaration and in the Bylaws. Membership shall bo appurtenant to and may not bo separ%ted from ownership of any Lot. The rights and privileges of membership, including the right to vote and to hold office, may be exercised by a member or the member's spouse, but in no event shall more than one vote be cast for each Lot owned. Section 2. Votina. Members shall be entitled to one vote for each Lot owned. When more than one Person holds an ownership interest in any Lot, the vote for such Lot shall be exercised as those Owners themselves determine and advise the Secretary of the Association prior to any meeting. In the absence of such advice, the Lot's vote shall be suspended in the event more than one Person seeks to exercise it. A~ciclo IV Sect&on l, ~uruose of Assessment. The assessments provided for herein shall be used for the .general purposes of promoting the recreation, health, welfare, common benefit, and enjoyment of the Owners and Occupants of Lots, includ£ng the maintenance of real and personal property, all as may be more specifically authorized from time to time by the Board of Directors. Sect&on 2. Creation of the Lien and Personal 0bl&~ation for Assessments, Each Owner of any Lot, by acceptance of a deed therefor, whether or not it shall be so expressed in such deed, covenants and agrees to pay to the Association: (a) annual assessments or charges; (b) special assessments, such assessments to be established and collected as hereinafter provided; and (c) specific assessments against any particular Lot which are established pursuant to the terms of this Declaration, including, but not limited to, reasonable fines as may be imposed in accordance with the terms of this Declaration. All such assessments, together with late charges, interest, not to exceed the lesser of the maximum rate Permitted by law or eighteen Percent (18%) per annum, costs, and reasonable attorney*s fees actually incurred, shall be a charge on the land and shall be a continuing lien upon the Lot against which each assessment is made. Each such assessment, together with 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 Lot 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 Lot, and his or her grantee shall be Jointly and severally liable for such portion thereof as may be due and payable at the time of conveyance; provided, however, the liability of a grantee for the unpaid assessments of its grantor shall not apply to any first Mortgagee taking title through foreclosure proceedings or deed in lieu of foreclosure. =' The Association shall, within ten (10) days after receiving a written request therefor and for a reasonable charge, furnish a certificate signed by an officer of the Association setting forth whether the assessments on a specified Lot have been paid. A properly executed certificate of the Association as to the status of assessments on a Lot shall be binding upon the Association as of the date of issuance. Assessments shall be paid at a uniform rate per Lot in such manner and on such dates as may be fixed by the Board of Directors, which may include, without limitation, acceleration, upon ten (10) days' written notice, of the annual assessment for delinquents. Unless otherwise provided by the Board, the assessment shall be paid in annual installments. The monthly costs of operating the Association may fluctuate dramatically during each budget year. Therefore, the Board is not required to prorate the annual assessment obligation of any Owner who has not lived in the Community for a full year. For example, if the bulk of the costa of operating the Association are likely to be incurred in the summer months, any Owner moving into t~%o Community after the beginning of the budget year but prior to the summer mon~hs may be required to pay a full annual assessment. Section 3. Computation. It shall be the duty of the Board to prepare a budget covering the estimated costs of operating the Association during the coming year, which may include a capital contribution or reserve in accordance with a capital budget separately prepared. The Board shall cause the budget and the assessment to be levied against each Lot for the following year and to be delivered to each member at least thirty (30) days prior to the end of the current fiscal year (or at least thirty (30) days prior to the due date of the first installment in the case of the initial budget). The assessment shall become effective unless disapproved at a meeting by a Majority of the Total Association Vote. Notwithstanding the foregoing, however, in the event the membership disapproves the proposed budget or the Board fails for any reason so to determine the budget for the succeeding year, then and until such time as a budget shall have been determined, as provided herein, the budget in effect for the then current year shall continue for the succeeding year. Section 4. ~pec£al Assessments. In addition to the other assessments authorized herein, the Association may levy special assessments any year. So long as the total amount of special assessments allocable to each Lot does not exceed Three Hundred Dollars ($300.00) in any one fiscal year, the Board may impose the special assessment. Except as provided in Art£cle VII, Section 2 hereof, any special assessment which would cause the amount of special assessments allocable to any Lot to exceed this limitation shall be effective only if approved by a Majority of the Total Association Vote. Special assessments shall be paid as determined by the Board, and the Board may permit special assessments to be paid in installments extending beyond the filcal year Ln which the special assessment is imposed. Section 5, Lien for Allellllntl. All sums assessed against any Lot 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 Lot in favor of the Association. Such lien shall be superior to all other liens and encumbrances on such Lot, except for (a) liens of ad valorem taxes, or (b) liens for all sums unpaid on a first Mortgage, or (c) liens for all sums on any Mortgage to Declarant duly recorded in the land records of the county where the Community is located and all amounts advanced pursuant to such Mortgage and secured thereby in accordance with the terms of such instrument. All other Persons acquiring liens or encumbrances on any Lot after this Declaration shall have been recorded in such records shall be deemed to consent that such liens or encumbrances shall be inferior to future liens for assessments, as provided herein, whether or not prior consent is specifically set forth in the instruments creating such liens or enc,,mhr~nces. ~. Any assessments or installments thereof which are not paid when due shall be delinquent. Any assessment or installments thereof delinquent for a period of more than ten (10) days shall incur a late charge in such amount as the ' BOOKg 2 PAGE Board may from time to time determine. The Association shall cause a notice of delinquency to be given to any member who has not paid within 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 exceed the lesser of the maximum rate permitted by law or eighteen l~rcent (18%) per annum, on the principal amount due, and all late charges fro~ the date first due and payable, all costs of collection, reasonable attorney's fees actually incurred, and any other amounts provided or permitted by law. In the event that the assessment remains unpaid after sixty (60) days, the Association may, as the Board shall determine, institute suit to collect such amounts and/or to foreclose its lien. E&chOwner, by acceptance of & deed or as a party to any other type of a conveyance, vests in the Association or its agents the right and power to bring all actions against him or her, personally, for the collection of such charges as a debt or to foreclose the aforesaid lien in the same manner as other liens for the improvement of real property. The lien provided for in this Article shall be in favor of the Association and shall be for the benefit of all other Owners. The Association, acting on behalf of the Owners, shall have the power to bid on the Lot at any foreclosure sale or to acquire, hold, lease, mortgage, or convey the same. No Owner may waive or otherwise exempt himself from liability for the assessments provided for herein, including, by way of illustration, but not limitation, abandonment of the Lot. No diminution or abatement of any assessment shall be claimed or allowed by reason of any alleged failure of the Association to take some action or perform some function required to be taken or performed by the Association under this Declaration or the Bylaws, or for inconvenience or discomfort arising from the making of repairs or improvements which are the responsibility of the Association, or from any action taken by the Association to comply with any law, ordinance, or with any order or directive of any municipal or other governmental authority, the obligation to pay assessments being a separate and independent covenant on the part of each Owner. All payments shall be applied first to costs and attorney's fees, then to late charges, then interest and then to delinquent assessments. Section 7. 9at~ of Commencement of a--ual Assessments/Assessment Obli~at£on of Declarant. (a) The annual assessments provided for herein shall commence as to all Lots then existing and subject to assessment under this Declaration on the first day of the month following the conveyance of the first Lot by Declarant to a Person other than beclarant and shall be due and payable in a manner and on a schedule as the Board of Directors may provide. (b) After the commencement of assessment pa~ents as to any Lot, Declarant, on behalf of itself and its successors and assigns covenants and agrees to pay the full amount of the assessments provided herein for each Lot it owns containing an occupied residence; provided, however, each Lot owned by Declarant which does not contain an occupied residence shall not be subject to any assessment provided for herein. (c) Any Lot which has been approved by Declarant for use as a ~el home for marketing and sales ~urposes shall not be deemed to be occupied for res£dential puL~oees and shall not be subject to assessments under this Declaration whether owned by Declarant or any other Person, so long as such Lot ~e'approved for use as a model home and is not occupied for residential purposes. (d) Notwithstanding anything to the contraz7 herein, Declarant may contribute assessments due from it in services or materials or a combination of cervices and materials, rather than in money (herein collectively called 'in kind contribution'). The amount by which monetary assessments shall be decreased as a result of any in kind contribution shall be the fair market value of the contribution. If Declarant and the Association agree aa to the value of any contribution, the value shall be as agreed. If the Association and Declarant cannot agree as to the value of any contribution, Declarant shall supply the Association with 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 by Declarant who are in the business of providing such services and materials. If the Association and Declarant are still unable to agree on the value of the contribution, the value shall be deemed to be the average of the bids received from the independent contractors. Section 8. SpecSfic Assessments. The Board shall have specifically assess pursuant to this Section aa, in its discretion, it shall deem appropriate. Failure of the Board to exercise its authority under this Section shall not be grounds for any action against the Association or the Board of Directors and shall not constitute a waiver of the Board's right to exercise its authority under thio 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 A=ticle XII, Section 1 of this Declaration and the costs of maintenance performed by the Association which the Owner is responsible for under Article V, Section 2 of this Declaration shall be specific assessments. The Board may also specifically assess Lots for the following Association expenses= the power 'to (a) Expenses of the Association which benefit less than all of the Lots may be specifically assessed equitably among all of the Lots which are benefitted according to the benefit received. (b) Expenses of the Association which benefit all Leto, but which do not provide an equal benefit to all Lots, may be assessed equitably among all Lots according to the benefit received. Section 9. Budoet Deficits Dur£no Declarant ~ontrol, For aa long as Declarant has the authority to appoint the directors and officers of the Association, Declarant may (a) advance funds to the Association sufficient to satisfy the deficit, if any, between the actual operating expenses of the Association (but specifically not including an allocation for capital reserves) and the sum of the annual, special and specific assessments collected by the Association in any fiscal year, and such advances shall be evidenced by promissory notes from the Association in favor of Declarant, or (b) cause the Association to borrow such amount from a commercial lending institution at the then-prevailing rates for such a loan in the local area of the Community. Declarant in its sole discretion may guarantee repayment of such loan, if required by the lending institution, but no Mortgage secured by the Com~n Property or any of the improvements maintainedbythe Association shall be given in connection with such loan. A~icle V Maintenance Section 1. Ajsociation's ResPonsibility. The Association shall maintain and keep in good repair the Common Property. This maintenance shall include, without limitation, maintenance, repair, and replacement, subject to any insurance then in effect, of ell landscaping and lmprov__m~___nts situated on the Con~aon Property. The Association shall maintain all entry features for the Community and street signs originally installed by Declarant, if any. The Association shall maintain all drainage detention and retention areas which were originally maintained by Declarant, to the extent such areal are not maintained on an ongoing basis by & local governmental entity. The Association shall maintain any lake(s), pond(s), and shoreline(e) located within the Co~munity, which maintenance responsibility shall include, without limitation, perfo~ming BOOK PAGE any dredging or other necessary maintenance. The Association shall maintain all property outside of Lots located within the Community which was originally maintained by Declarant. The Association may, but shall not be obligated to, maintain, repair, or rIpl&ce, aa necessary, &ll mailboxes or mailbox posts located within the Co~unity. In addition, the Aiiociation Ihall have the right, but not the obligation, to maintain property not owned by the AIsociation where the Board has determined that Iuch maintenance would benefit ill O~ners. There is hereby reserved to the Association a blanket easement upon, across, over, and under all property within the Co~unity for access, ingress, and egress as necessary to permit the Association to perform such maintenance, including, without limitation, maintenance of lake(s), ponds(s), and shoreline(s). The foregoing maintenance shall be performed consistent with the Co~aunity-Wide Standard. Section 2. O~er'I Rei~oni/bllttv. Except as provided in Section i above, all maintenance of the Lot and all Itructures, parking areas, landscaping, and other improvements thereon shall be the sole responsibility of the Owner thereof, who shall maintain such Lot in a manner consistent with the Community-Wide Standard and this Declaration. If the Board of Directors of the Association determines that (a) any O~ner has failed or refused to discharge properly any of iuch Owner'i obligations with regard to the maintenance, repair, or replacement of items for which such Owner is responsible hereunder; or (b) that the need for maintenance, repair, or replacement, which is the responsibility of the Association hereunder, is caused through the willful or negligent act of an (~wner, or the family, guests, lessees, or invitees of any Owner, and is not covered or paid for by insurance, in whole or in part, then the Association may perform the repair, replacement or maintenance and shall, except in the event of an emergency situation, give the Owner written notice of the Association's intent to provide iuch necessary maintenance, repair, or replacement, at the Owner's iole cost and expense. The notice shall set forth with reasonable particularity the maintenance, repairs, or replacement deemed necessary. The Owner shall have ten (10) days within which to complete such maintenance, repair, or replacement, or, in the event that iuch maintenance, repair, or replacement is not capable of completion within a ten (10) day period, to co~=~ence iuch work which shall be completed within a reasonable time. If any Owner does not comply with the provisions hereof, the Association may provide any such maintenance, repair, or replacement at such Owner's sole cost and expense, and all costs shall be added to and become a part of the assessment to which such Owner is subject and shall become a lien against the Lot. Section 3. ~arty Walls and Pa~-ty Fences, (a) ~eneral Rules of Law to ADolv. Each wall or fence built as a part of the original construction of the Lots which shall serve and separate any two (2) adjoining Lots shall constitute a party wall or fence and, to the extent not inconsistent with the provisions of this Section, the general rules of law regarding party walls and liability for property damage due to negligence or willful acts or omissions shall apply thereto. (b) Sharino of Repair and Maintenance. The cost of reasonable repair and maintenance of a party wall or fence shall be shared by the Owners who make use of the wall or fence in equal proportions. ~' (c) 9amaqe and Destruction. If a party wall or fence is destroyed or damaged by fire or other casualty, then to the extent that such damage is not covered by insurance and repaired out of the proceeds of insurance, any Owner who has used the wall may restore it, and if the other Owner or Owners thereafter make use of the wall, they shall contribute to the cost of restoration thereof in equal proportions without prejudice, however, to the right of any such Owners to call for a larger contribution from the others under any ~ule of law regarding liability for negligent or willful acts or omissions. (d) ~oht to Contribution Runs With Land. The right of any O~ner to contribution from any other Owner under this Section shall be appurtenant to the land and shall pass to such Owner's successors-in-title. (e) Arbitration. In the event of any dispute arising concerning a party wall or fence, or under the provisions of this Section, each party shall appoint one arbitrator. Should any party refuse to appoint an arbitrator within ten (10) days after written request therefor by the Board of Directors, the Board shalh appoint an arbitrator for the refusing party. The arbitrators thus appointed' shall appoint one additional arbitrator and the decision by a Majority of all three arbitrators shall be binding upon the parties and shall be a condition precedent to any right of legal action that either porty may have against the other. Article V! Use Restrictions and Rules Section I. Sahara1. This Article, beginning at Section 2, sets out certain use restrictions which must be complied with by all O~ners and Occupants. These use restrictions may be amended only in the manner provided in Article XII, Section 4 hereof raga=ding amendment of this Declaration. The Board of Directors may, from time to time, without consent of the members, promulgate, modify, or delete use restrictions and rules and regulations applicable to the Lots and the 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 Board shall also have the authority to impose all other necessary traffic and parking regulations and to restrict the maxinnun noise levels of vehicles in the CO~unity. Such regulations and use restrictions shall be distributed to all O~ner8 and Occupants prior to the date that they are to become effective and shall thereafter be binding upon all O~nere and Occupants until and unless overruled, cancelled, or ~odified in a regular or special meeting by a Majority of the Total Association Vote. Section 2. Use of Lots. All Lots shall be used for single-family residential purposes exclusively. No business or business activity shall be carried on or upon any Lot at any time except with the prior written approval of the Board. Leasing of a Lot shall not be considered a business or business activity. Section 3. Si=ns. No sign of any kind shall be erected by an Owner or Occupant within the Co-wnunity without the written consent of the Board excepts (a) such signs as may be required by legal proceedings; (b) not more than one "For Sale' sign consistent with the Community-Wide Standard, having a maximum area of four square feet and a maximum height of four feet above ground level; and (c) signs erected by Declarant. The Board shall have the right to erect any reasonable and appropriate signs. Section 4. Vehicles. Vehicles shall not be parked on any street within the CO-~unity. Vehicles shall not be parked on the Co~mon Property or on any portion of a Lot other than the driveway and the garage. Except for passenger non-c~o~__ercial automobiles, vehicles sha~l no~rk~ any ~ for ~ri~s of ~re ~han ~wenty-four (24) continuous h~rs (the in~en= of ~his provision Es that, with the exceptEon~ntEon~ ~ve, vehicles may no~ be stor~ on a ~ except If in a garage and ~he =~ra~ r~val of such vehicle fr~ a ~t to break the continuity of ~he t~nty-four (24) consecutive hours shall no~ ~ suffEcien~ to est~lEsh c~plEance with ~his restriction). The ~e~ 'vehicles,' as used herein, shall include, without l~E~a~ion, ~tor homes, boats, trailers, motorcycles, mEn.Ekes, sc~ers, go-ca~s, ~rucks, c~rs, buses, vans and au~biles. Section 5. ~_~. Lots may be leased for residential purposes. Section &. ~I~R~. All provisions of the Declaration and of any rules and regulations or use restrictions promulgated pursuant thereto which govern the conduct of Owners and which provide for sanctions against Owners shall ales &pply to all Occupants of any Lot even though Occupants are not specifically mentioned. Fines may he levied against Owners or Occupants. If a fine is first levied against an Occupant and is not paid timely, the fine may then be levied against the Owner. Section ?. ~~9_~. No animals, livestock, or poultry of any kind may be raised, bred, kept, or permitted on any Lot, except that dogs, cats, or other usual and c~on household pets in reasonable number, as determined by the Board, may be kept on a Lot; provided, however, those pets which are permitted to roam free, or, in the sole discretion of the Board, make objectionable noise, or endanger the health of or constitute a nuisance or inconvenience to the Owners of other Lots or the owner of any property located adjacent to the Community, may be removed by the Board. No pete shall be kept, bred or maintained for any commercial purpose. Dogs which are household pets shall at all times whenever they are outside a Lot be confined on a leash. Without prejudice to the Board's right to remove any such household pets, no household pet that has caused damage or injury may be walked in the community. Section 8. Nuisance. It shall be the responsibility of each Owner and Occupant to prevent the develolanent of any unclean, unhealthy, unsightly, or unkempt condition on his or her Lot. No Lot shall be used, in whole or in part, for the storage of any property or thing that will cause such Lot to appear to be in an unclean or untidy condition or that will be obnoxious to the eye; nor shall any substance, thing, or material be kept upon any Lot that will emit foul or obnoxious odors or that will cause any noise or other condition that will or might disturb the peace, quiet, safety, comfort, or serenity of the occupants of surrounding property. No noxious or offensive activity shall be carried on upon any Lot, nor shall anything be done thereon tending to cause embarrassment, discomfort, annoyance, or nuisance to any Person using any property adjacent to the Lot. There shall not be maintained any plants or animals or device or thing of any sort whose activities or existence in any way is noxious, dangerous, unsightly, unpleasant, or of a nature as may diminish or destroy the enjoyment of the Community. Without limiting the generality of the foregoing, no speaker, horn, whistle, siren, bell, amplifier or other sound device, except such devices as may be used exclusively for security purposes, shall be located, installed or maintained upon the exterior of any Lot unless required by law. Section 9. Unsiqhtlv or Unkemet Conditions. The pursuit of hobbies or other activities, including specifically, without limiting the generality of the foregoing, the assembly and disassembly of motor vehicles and other mechanical devices, which might tend to cause disorderly, unsightly, or unkempt conditions, shall not be pursued or undertaken in any part of the Community. Section 10. &rch~tecturll Standards. No exterior construction, alteration, addition, or erection of any nature whatsoever (including, without limitation, fences, pools, tennis courts, exterior lighting, treehouses and play equipment) shall be commenced or placed upon any part of the Community, except such as is installed by Declarant, or as is approved in accordance with this Section, or as is otherwise expressly Permitted herein. No exterior construction, addition, erection, or alteration shall be made unless and until ~the plans and specifications showing the nature, kind, shape, height, materials, and location shall have been submitted in writing to and approved by the Board or its designee. The Board or its designee may promulgate written quidelines for the exercise of this review. The 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 atop any construction in violation of these restrictions. An~ member of the Board or its designee or the representatives thereof shall have the right, during reasonable hours, to enter upon any Lot to inspect any Lot and any improvements thereon for the purpose of ascertaining whether or not these restrictive covenants have been or are being complied with. Such Person or Persona shall not be deemed guilty of trespass by reason of such entry. If the Board or its designee fails to approve or to disapprove such design and location within sixty (60) days after the plans and specifications have been aubm£tted to it, the foregoing will be deemed approved. However, all activities commenced pursuant to plans which have been deemed approved shall be consistent with such plans. -~ As a condition of approval under this Section, each Owner, on behalf of such Owner and such Owner's successors-in-interest shall assume all responsibilities for maintenance, repair, replacement, and insurance to and on any change, modification, addition, or alteration. In the discretion of the Board or its designee, an Owner may be made to verify such condition of approval by a recordable written instrument acknowledged by such Owner on behalf of such Owner and such O~ner'a successors-in-interest. PLANS AND SPECIFICATIONS ARE NOT APPROVED FOR ENGINEERING OR STRUCTURAL DESIGN OR QUALITY OF MATERIALS, AND BY APPROVING SUCH PLANS AND SPECIFICATIONS NEITHER THE BOARD, ITS DESIGNEE, NOR THE ASSOCIATION ASSUMES LIABILITY OR RESPONSIBILITY THEREFOR, NOR FOR ANY DEFECT IN ANY STRUCTURE CONSTRUCTED FROM SUCH PLANS AND SPECIFICATIONS. NEITHER DECLARANT, THE ASSOCIATION, THE BOARD, TH~BOARD'S DESIGNEE, NOR THE OFFICERS, DIRECTORS, MEMBERS, EMPLOYEES, ANDAGENTS OF ANY OF THEM SHALL BE LIABLE IN DAMAGES TO ANYONE SUBMITTING PLANS ~ SPECIFICATIONS TO ANYOF THEM FOR APPROVAL, OR TOANY O~q~ER OF PROPERTYAFFECTED BY THESE RESTRICTIONS BY R~ASON OF MISTAK~ IN ~u~GNENT, NEGLIGENCE, OR NONFEASANCEARISING OUT OF OR IN CONNECTION WITH THEAPPROVALOR DISAPPROVAL OR FAILURE TO APFROVEOR DISAPPROVE ANY SUCH PLANS OR SPECIFICATIONS. EVERY PERSON WHO SUBMITS PLANS OR SPECIFICATIONS AND EVERY O~NER AGREES THAT SUCH PERSON OR O%O~ER WILL NOT BRING ANY ACTION OR SUIT AGAINST DECLARANT, THE ASSOCIATION, THE BOARD, THE BOARD'S DESIGNEE, OR THEOFFICERS, DIRECTORS, M~/~BERS, EMPLOYEES, AND AGENTS OF ANY OF THEM TO RECOVER ANY DAMAGES AND HEI~EBY RELEASES, REMISES, QUITCLAIMS, AND COVENANTS NOT TO SUE FOR ALL CLAIMS, DEMANDS, AND CAUSES OF ACTION ARISING OUT OF OR IN CONNECTION WITH ANY ~u~GMENT, NEGLIGENCE, OR NONFEASANCE AND HEREBY WAIVES THE PROVISIONS OF ANY LAN WHICH PROVIDES THAT A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS, DEMANDS, AND CAUSES OF ACTION NOT KNOWN AT THE TINE THE RELEASE IS GIVEN. Section 11. ~tennas. No exterior antennas of any kind shall be placed, allowed, or maintained upon any portion of the Co~unit¥, including any Lot, without the prior written consent of the Board or its designee. However, the Board and Declarant reserve the right to (but shall not be obligated to) erect a master antenna, satellite dish or other similar master system for tho benefit of the Community. Section 12. ~rdens. Basketball ~oala. Btc. Grass, ornamental plants and shrubbery (and only the foregoing) may be planted in tho front or side yard of any Lot. Ail other planting may be done only with prior written approval of the Board or its designee or in accordance with the guidel£nea previously established by the Board or its designee, eve=seeding of rescue lawns and sodding of lawns with Bermuda or zoysia grasses shall not require prior approval pursuant to thio Section. No vegetable garden, hammocks, statuary, or recreational equipment may be placed, erected, allowed or maintained upon any Lot without the prior written consent of tho Board or its designee. This provision shall not, however, apply to basketball goals which may be installed after the type and location have been previously approved in writing by the Board or its designee. Section 13. ~. No trees shall be removed without the express consent of =he Board or its designee, except for (a) trees r~ved by Declarant~ (~) diseased or dead t~eesl and (c) trees ~eeding to be removed to promote the grouch of other trees. Section lA. Li~h~An~. Notwithstanding ~:ticle VI, Section 10 above, the following exterior lighting may be installed without the necessity of obtaining the prior approval of the Board or its designee: (a) seasonal decorative lights during the Christmas season; (b) illumination of other than the front or side yards of a Lot~ (c) lll~ination of m~el h~s and entrance features const~cted by Declarant~ and (d) other ~lghting originally installed by Declarant. Plans for all other exterior lighting must ~ su~itted and approved In accordance with ~t~cle VI, Section 10 hereof. Decorative~s~ ~lgh~s will not ~ app=oved unless they confo~ with es~lish~ street lighting. Section ~5. Drainaae. Catch basins and drainage areas are for ~he put, se of natural f~ of water only. No obstructions or debris eha~l be placed these areas. No ~er or ~cupant of any ~t ~y obstruct or rechannel ~ainage fl~s after ~he location and installation of drainage swales, s~r~, or sto~drains. Declaran~ reserves the right to prepare sloping banks, ~t or fill, on a ~hree (3) to one (1) slo~ on all streets and =oads. Declarant hereby reserves a ~r~tual easement across all C~unity pro~r~y for the ~r~se of altering drainage and water flow. Rights exercised ~rsuant to such reserved easemen~ shall be exercised with a minim~of ~nterference to the ~ie~ enJo~nt of affected pro~r~y, reasonable steps shall be taken to pro~ect such pro~y, and d~age shall be repaired by the Person causing the d~age a~ its sole ex~nse. Section 16. 8~qht Dis~muco at Intersections. All pro~rty located at street intersections shall bo so landsca~d as to ~it safe 81gh~ across ~he street corners. No fence, wall, hedge, or shrub planting shall ~ placed or ~itted to remain a~ any corner where ~his would crea~e a =raffic or sight probl~. Section 17. Clo~heslines. Garb8~o~ns. W~Diloo. Etc. All clotheslines, garbage cans, ~odpiles, and other similar items shall be located or screened as to be concealed fr~view of neigh~ring Lo=o, streets, and pro~r=y adjacent to the ~. Ail ~bbish, ~rash, and garbage shall ~ r~larly re~ved fr~ the ~t and shall not ~ all~ to acc~ulate ~her~n. Notwithstanding the foregoing, the Association resales the right to provide and maintain a d~pster for ~he use of residents within ~he C~uni=y. Declarant, however, hereby expressly reserves =he righ~ to dump and bury rocks and trees on pro~rty within ~he C~unity aa needed for efficient construction and to allow develo~r8 and builders within the C~unity to do 8o. Section 18. ~ivision of ~t. No Lot shall be subdivided or its ~undary lines changed except with the prior written approval of the Board or its designee. Declarant, however, hereby expressly reserves =he right to replat any ~t(8) or other pro~rty in ~he Co~unity. ~y such division, boundary line change, or replatting shall not ~ in viola~ion of the applic~le subdivision and zoning re~lations. Section 19. Gu~S. The use of firea~s in the Co, unity is prohibited. The te~ 'firea~s' includes 'B-B' ~ns, ~llet ~ns, and small firea~8 of all Section 20. ~lar Devices. No artificial or man-made device which ~i$gned or used for collection of or hea~ing by solar ener~ or other s~ilar ~r~ees shall bo placed, allowed, or main~ained u~n any ~ion of the ~unity, including any Lo~, without the prior written consent of the Boa~d or its designee. Section 21. Fo~co8. No fence or fencing t~ barrier of any kind shall be placed, stsc=ed, all~, or maintained u~n any ~rtion of the Co,unity, 10 including any Lot, without the prior written consent of the Board or its designee. The Board or its designee may issue guidelines detailing acceptable fencs styles or specifications, but in no event may a chain link fence or hog wire fence be approved. Section 22. erie Colors. The exterior of all improvements, including, without limitation, residences, constructed, erected, allowed, or maintainedupon any LOt must be painted or repainted in a color used by Declarant in the original construction and marketing of residences within the Cou~unity or in a color used by John Wleland Homes, Inc., in the original construction and marketing of residences in any subdivision located within the Section 23. Mailboxes. No mailboxes and appurtenant posts and/or structures shall be erected without the prior approval of the Board or its designee. Generally, the foregoing must be of the same t~pe and color as that originally installed by Declarant. Section 24. Detached StructuFe$. No detached structure shall be placed, erected, allowed, or maintained upon any Lot without the prior written consent of the Board or its designee. All detached structures must be consistent in design materials and color with the dwelling on the Lot. Section 25. ~t~ FeatuFes and Street Si=ns. O~ners shall not alter, remove or add improve~aents to any entry features or street signs constructed by Declarant on any Lot, or any part of any easeraent area associated therewith without the prior written consent of the Board or its designee. Section 26. ~sve G~ound Pools. Above ground sw~ming pools shall not be permitted in the Community. Article Insurance and C~sualtv ~,osses Section 1. Insurance. The Association's Board of Directors or its duly authorized agent shall have the authority to and shall obtain insurance for all insurable improvements located on the Co~on Property or required to be maintained by the Association under Article V, Section I hereof. This insurance shall cover loss or damage by fire or other hazards, including extended coverage, vandalism, and malicious mischief and shall be in an amount sufficient to cover ~he full replacement cost of any repair or reconstruction in the event of damage or destruction from any such hazard. Alternatively, the Board may purchase "all-risk' coverage in like amounts. If available at reasonable cost, as determined in the sole discretion of the Board, the Board shall obtain a public liability policy applicable to the common Property insuring the Association and its members for all damage or injury caused by the negligence of the Association or any of lts~hers or agents. The public liability policy shall have a combined single limit of at least One Million Dollars ($1,000,000.00). If ava£1able at reasonable cost, as determined in the sole discretion of the Board, the Board shall also obtain directors' and officers' liability insurance. The Board is hereby authorized to contract with or o~herwiee arrange to obtain the insurance coverage required hereunder through Declarant and to reimburse Declarant for the cost thereof, and Declarant shall b e authorized, but not obligated, to purchase such insurance coverage for the benefit of the Association and the Owners upon Declarant and Association agreeing upon the terms and conditions applicable to reimbursement by the Association for costs incurred by Declarant in obtaining such coverage. Notwithstanding anything contained in this Declaration to the contrary, theBoard shall not b e required to comply with the provisions of this Article if the Board has contracted for or otherwise arranged to obtain the required insurance coverage through Declarant. 11 Premiums for all insurance shall be common expenses of the Association. The policies may contain a reasonable deductible, and the amount thereof shall not be subtracted from the face amount of the policy in determining whether the insurance at least equals the full replacement cost. Ail such insurance coverage obtained by tho 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 sst forths (a) AIl policies shall bewritten with a company authorized to do business ln Georgia. (b) Exclusive authority to adjust losses under policies obtained by the Association shall be vested in the Association's Board of Directors; provided, however, no Mortgagee having an interest in such losses may be prohibited from participating in the settlement negotiations, if any, related thereto. (c) In no event shall the insurance coverage obtained and maintained by the Association's Board of Directors hereur~erbebrought into contribution with insurance purchased by individual Owners, Occupants, or their Mortgagees, and the insurance carried by the Association shall be primary. (d) Ail casualty insurance policies shall have an inflation guard endorsement and an agreed amount 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 county where the Community is located. (e) The Association's Board of Directors shall be required to-make every reasonable effort to secure insurance policies that will provide for the following: (i} a waiver of subrogation by the insurer as to any claims against the Association's Board of Directors, its manager, the Owners and their respective tenants, servants, agents, and quests; (ii} a waiver by the insurer of its rights to repair and reconstruct instead of paying cash; (iii) that no policy may be cancelled, subjected to nonrenewal, invalidated, or suspended on account of any one or more individual Owners; (iv) that no policy may be cancelled, subjected to nonrenewal, invalidated, or 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 Mortgagee; (v) that any "other insurance" clause in any policy exclude individual Owners' policies from consideration; and (vi) that no Policy may be cancelled, subjected to nonrenewal, or substantially modified without at least ten (10) days' prior written notice to -~he Association. In addition to other insurance coverage required by this Section, the Board shall obtain workers compensation insurance, if and to the extent necessary to satisfy the requirements of applicable law, and, if available at reasonable cost, as determined in the sole discretion of the Board, a fidelity bond or employees dishonesty coverage covering directors, officers, employees, and other Persons handling or responsible for the Association's funds. The amount of fidelity or employees dishonesty coverage, if obtained, shall bedetermined in the directors' best business judgment. Such coverage, if obtained, shall contain a waiver of all defenses based upon the exclusion of Persons serving without co~pensation and she1! not be subject to cancellation, nonrenewal or substantial modification without at least ten (10) days' prior written notice to the Association. The Association shall also obtain construction code endorsements, steam boiler coverage, and flood insurance, if and to the extent necessary to satisfy the requirements of The Federal Home Loan Mortgage Corporat£on or the Federal National Mortgage Association, the U.S. Department of Veterans Affairs ("VA') or the U.S. Department of Housing and Urban Development (#~uu'). Section 2. Damaae and DestFuction -- Commn ProDeL~v. (a) In General. Immediately after the damage or destruction by fire or other casualty to all or any portion of any ~mprovement covered by insurance written in the name of the Association, the Board of Directors or its duly authorized agent shall proceed with the filing and adjustment of all claims arising under such insurance and obtain reliable and detailed estimates of the cost of repair or reconstruction of the damaged or destroyed property. Repair or reconstruction, as used in this Section, means rep~iring or restoring the property to substantially the same condition and location that existed prior to the fire or other casualty allowing for any changes or improvements necessary to comply with applicable building codes. (b) RePair and Reconstruct%on. Any damage or destruction to property required to be covered by insurance written in the name of the Association shall be repaired or reconstructed unless, within sixty ($0) days after the casualty, at least seventy-five percent (75%) of the Total Association Vote otherwise agree. If for any reason either the amount of the insurance proceeds to be peid as a result of such damage or destruction, or reliable and detailed esth~ates of the cost of repair or reconstruction, or both, ere not m~de available to the Association within such period, then the period shall be extended until luch information shall be made available; provided, however, such extension shall not exceed sixty (60) days. No Mortgagee shall have the right to participate in the determination of whether damage or destruction shall be repaired or reconstructed. If the damage or destruction for which the insurance proceeds are paid is to be repaired or reconstructed and such proceeds are no~ sufficient to defray the cost thereof, the Board of Directors shall, without the necessity of · vote of the Association's me~bers, levy a special assessment against all O~ners in proportion to the number of Lots owned by such O~ners. Additional assessments may be made in like manner at any time during or following the completion of any repair or reconstruction. If the funds available from ~nsurance exceed the costs of repair or reconstruction or if the improvements are not repaired or reconstructed, such excess shall be deposited to the benefit of the Association. In the event that it should be determined by theA~sociation in the manner described above that the damage or destruction shall not be repaired or reconstructed and no alternat£ve ~rovements are authorized, then and in that event the property shall be restored to its natural state and maintained as an undeveloped portion of the Community by the Association in a neat and attractive condition. Section 3. Dmoe and Destructio~ -- ~t,. The d~mage or destruction by fire or other casualty to ell or any portion of any /mp~ove~ent on a ~t shall ~ =e~ir~ by the ~er ther~f wLthin ~vonty-f~ (75) day~ after such dmgo or dest~ction or, where repairs c~not ~ c~plet~ w~th~n meventy-five (75) days, they shall bo c~nc~ within such ~r~ and 8h,~1 ~ c~lot~ within a reason~le t~e ~hereafter. Alternatively, tho~lr~y IXo~ ~o d~lllh aXX ~prov~n~s on theft and =~ve all d~ris therefr~w~th~n seventy-five (75) days after such d~age or dest~ct~on. In the e~n~ of nonc~pliance with ~h~ provision~ the Board of Directors shall have all enforcement powers specified in ~,-ticle XZZ, Sectl~ 1 of this Declaration. section &. Znsursnce Deductible. The deductible for any casualty insurance policy carried by the Association shall, in the event of damage or destruction, be allocated among the Persons who are responsible hereunder, or under any declaration or contract requiring the Association to obtain such insurance, for maintenance of the damaged or destroyed property. ArtAcle'VZll Conde~natAon Whenever all or any part of the Common Property shall be taken (or conveyed in lieu of and under threat of condemnation by the Board, acting on its behalf or on the written direction of all Owners of Lots subject to the taking, if any) by any authority having the power of condemnation or eminent domain, the Association shall represent the Owners. The award made for such taking shall be payable to the Association as trustee for all Owners. The provisions of Article VII, Section 2 above, applicable to Common Property ~mprovement8 damage or destruction, shall govern replacement or restoration and the actions to be taken in the event that the improvements are not restored or replaced. ArtAcle IX AnnexatAon and W~thdrawal of Property Sect£on 1. Unilateral Annoxat£on By Declarant. (a) As the owner thereof or, if not the owner, with the consent of the owner thereof, Declarant shall have the unilateral right, privilege, and option from time to time at any time until ten (10) years after the recording of this Declaration 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 the county in which the property to be annexed is located a Supplementary Declaration describing the property being annexed. Any such annexation shall be effective upon the filing for record of such Supplementary Declaration unless a later effective date is provided therein. As long as covenants applicable to the real property previously subjected to this Declaration are not changed and as long as rights of then Owners are not adversely affected, Declarant may unilaterally amend this Declaration to reflect the different character of any such annexed real property. (b) The rights reserved unto Declarant to subject additional land to the Declaration shall not and shall not be implied or construed so as to impose any obligation upon Declarant to subject any of such additional land to this Declaration or to the jurisdiction of the Association. If such additional land is not subjected to this Declaration, Declarant's reserved rights shall not impose any obligation on Declarant 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 any subsequent owner thereof, whether such uses are consistent with the covenants and restrictions imposed hereby or not. Section 2. Other An-exation. Subject to the consent of the owner thereof ~d the consent of Declarant (so long as Declarant owns any property for development and/or sale in the Community or has the right unilaterally to annex additional property to the Couununity), upon the affirmative vote or written consent, or any combination thereof, of Owners of at least two-thirds (2/3) of the Lots (other than Lots owned by Declarant so long as the consent of Declarant is required), the Association may annex other real property to the provisions of 14 this Declaration and the jurisdiction of the Association by filing for record in the'Office of the Clerk of the Superior Cour~ of the county in which the to be annexed is located a Supplementary Declaration describing the property being annexed. Any such Supplementary Declaration shall be signed by the President and Secretary of the Association, and any such annexation shall be effective upon the filing for record of such Supplementary Declaration, unless a later effective date is provided therein. Section 3. W~thdrawal of Property. Declarant reserves the right to amend this Declaration so long as it has a right to annex additional property pursuant to this Article for the purpose of re, evins any portion of the Community rhea owned by Declarant or the Association from the coverage of this Declaration,'to the extent originally included in error or as a result of any changes whatsoever £n the plans for the Community, provided such withdrawal is not unequivocally contrary to the overall, uniform scheme of development for the Community. Article · Morteaaee Provisions The following provisions are for the benefit of holders of first Mortgages on Lots in the Comunity. The provisions of this Article apply to both this Declaration and to the Bylaws, notwithstanding any other provisions contained therein. Section 1. Notices of Action. An institutional holder, insurer, or guarantor of a first Mortgage, who provides written request to the Association (such request to state the name and address of such holder, insurer, or guarantor and the Lot number), (therefore becoming an 'elig~ble holder'), will be entitled to timely written notice of= (a) any condemnation lose or any casualty loss which affects a mater£al portion of the Coa~aunity or which affects any Lot on which there is a first Mortgage held, insured, or guaranteed by such eligible holder; (b) any delinquency in the payment of assessments or charges owed by an O~ner of a Lot subject to the Mortgage of such eligible holder, where such delinquency has continued for a period of s~xty (60) days; provided, however, notwithstanding th£s provision, any holder of a firstMortgage, upon request, £s entitled to written notice from the Association of any default in the performance by an Owner of a Lot of any obligation under the Declaration or Bylaws of the Association which is 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. No Priority. No provision of th£l Declaration or the Bylaws gives or shall be construed as giving any O~ner or other pa~ty priority over any rights of the first Mortgagee of any Lot £n the case of d£stribution to such O~nsr of insurance proceeds or condmmnation awards fo= losses to or a taking of the Common Property. Section 3, II<~ice to Association. Upon request, each Lot Owner shall bt obligated to furn£$h to the Association the name and address of the holder of any Mortgage encumbering such Owner's Lot. Section 4. Amendments by Board. Should the Federal National MOL~Cgage Association, the Federal Home Loan Mortgage Corporation, HUD or VA subsequently delete any of their respective requirements which necessitate the provisions of thiI Article or make a~y such requirementi lei , =ne~oara, ithout approval of the Owneri, may cauls an amendment to thiI Article to be recorded to riflect Iuch changii. Sictton S. ~. As long al Declarant has the right to appoint and remove thI dirICtori and officlrI of the Aiiociation and IS long ai the proJIct ii approv~ by HUD for lnIuring any Mortgage in the Community (si dItermined by conIulting the current llIt of approvId IUbdiviiionl regularly ~ubliihed by HUD and furniihI~ to Mortgagi companlei) or the VA for guaranteeing any Mortgage in the Co~munity (si determined by tIlephoni inquiry to VA), the following actioni Ihall require thi prior approval of the VA and/or HUD, al applicable: annexation of additional property to the Community, except for annIxationbyDeclarant in accordance withArticle IX, Section 1, hereof purIuant to a plan of annexation previouily approved by thi VA and/or HUD, as applicable; dIdiCation of Co~on Property to any public entity; mergers and coniolidations; diiIolution of the Aiiociation; mortgaging of Common Property; and material amendment of the Declaration, the Bylawi, or theArticles of Incorporation of the AIIociation. Section 6. ADDliCabilitv Of Article E. Nothing contained in this Article ihall be conItrued to reduce the percentage vote that muir otherwise be obtained under the Declaration, Bylawi, or Georgia law for any of the acts set out in this Article. Section 7. Failure of ~rt~a~ee to Res~nd. Any Mortgagee who receives a written riquest from the Board to respond to or consent to any action Ihall be deemed to have approvid Iuch action if the Asiociation doel not receive a written reiponIi from the Mortgagie within thirty (30) dayi of the date of the AlIociation'i requeit. Article XX Easeie~I Section X. Easenents for Bncroachtent and Overhanq. There ihall be reciprocal appurtenant eaiementi for encroachment and overhang as between each Lot and such portion or portioni of the Co-ween Property adjacent thereto or as between adjacent Lots due to the unintentional placement or settling or shifting of the improvements constructed, reconstructed, or altered thereon (in accordance with the terms of this Declaration} to a distance of not more than five (5) feet, ai mealured from any point on the cool, on boundary between each Lot and the adjacent portion of the Colon Property or as between adjacent Lots, as the case may be, along a line perpendicular to Iuch boundary at such point; provided, however, in no event shall an easement for encroachment exist if such encroachment occurred due to willful conduct on the part of an Owner, tenant, or the Association. Section 2. BaIements for Use and En4oyment, (a) Every Owner of a Lot shall have a right and easement of ingress and egreii, use and enjoyment in and to the Common Property which shall be appurtenant to and shall pass with the title to his Lot, subject to the following provisions: (i) the right of the Association to charge reasonable admission and ~her fees for the use of any portion of the Common Property, to limit the number of guests of Lot Owners and tenanti who may use the Co~on Property, and to provide for the excluiive use and enjoyment of specific portions thereof at certain designated times by an Owner, hiI family, tenants, gueits, and invitees; (ii) the right of the Association to suspend the voting rights of a Lot Owner and the right of an Owner to use facilities available for use by the Community, if any, for any period during which any assessment against his Lot which is hereby provided for remains unpaid; and, for a reasonable period of time for an infraction of the Declaration, Bylaws, or rules and regulations; (iii) the right of the Association to borrow money for the purpose of improving the Common Property, or any portion thereof, or for construction, repairing or improving any facilities located or to be located thereon, and give as security for the payment of any such loan a Mortgage conveying all or any portion of the Common Property; provided, however, the lien and encumbrance of any such Mortgage given by the Association shall be subject and subordinate tx~ any rights, interests, options, easements and privileges herein reserved 'or established for the benefit of Declarant, or any Lot or Lot Owner, Or the holder of any Mortgage, irrespective of when executed, given by Declarant or any Lot Owner encumbering any Lot or other property located within the Community (Any provision in this Declaration or in any such Mortgage given by the Association to the contrary notwithstanding, the exercise of any rights therein by the holder thereof in the event of a default thereunder shall not cancel or terminate any rights, easements or priv£1eges herein reserved or established for the benefit of Declarant, or any Lot or Lot Owner, or the holder of any Mortgage, irrespective of when executed, given by Declarant or any Lot Owner enc,,mhering any Lot Or other property located within the Community.) (No such Mortgage shall be effective unless an instrument agreeing to such Mortgage has been approved by Owners of at least two-thirds (2/3) of the Lots (other than Lots of Declarant es long as the consent of Declarant is required) and the consent of Declarant (es long as Declarant owns any property for development and/or sale in the Community or has the right unilaterally to annex property to the Community.); and (iv) the right of the Association to dedicate or transfer all or any portion of the Common Property subject to such conditions as may be agreed to by the members of the Association. No such dedication or transfer shall be effective unless an instrument agreeing to such dedication or transfer has been approved by Declarant (so long as Declarant owns any property for development and/or sale within the Community or has the right unilaterally to annex additional property to the Community) and Owners representing at least two-thirds (2/3) of the Total Association Vote (other than Declarant so long as the consent of Declarant is required). (b) Any Lot Owner may delegate his or her right of use and enjoyment in and to the Con, on Property and facilities located thereon to the members of his f'amily, his tenants and guests and shall be deemed to have made a delegation of all such rights to the Occupants of such Owner's Lot if leased. Section 3. Basements for Utilities. There is hereby reserved to the Association blanket easements upon, across, above and under all property within the COmmunity for access, ingress, egress, installation, repairing, replacing, and maintaining all utilities serving the Community or any portion thereof, including, but not limited to, gas, water, sanitary sewer, telephone and electricity, as well as storm drainage and any other service such as, but not limited to, a master television antenna system, cable television system, or security system which Declarant or the Association might decide to have installed to serve the Community. It shall be expressly permissible for Declarant, the Association or the designee of either, 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 egull~nent 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. Basement for Association MA£n~SDC~. Declarant hereby expressly reserves a perpetual easement for the benefit of the Association across such portions of the Community, determined in the sole discretion of the Association, as are necessary to allow for the maintenance required under Article ihorilini(i). Such maintenance Ihall bi perforraed with a minimum of interference to the qulit inJoymint to Owneri' property, reaionable itepi ihall be taken to protect Iuch property, and damage Ihall bt repaired by the Person cauiing the damage at its sole expenie. Section S. Basements for Maintenance and ReDeir. There shall be reciprocal appurtenant easements between adjacent Lots for the purpose of maintaining or repairing the improvements, including, without limitation, landicaping located on iach Lot which easement ihall extend to a distance of not IOri than fivi (5) feet as meaiured from any point on the coa~onboundary between thI Loti and along a line perpendicular to such boundary at iuch point. The IaiIment ihall be uled only for iuch period of time ai ii reaionably neceIIary in order to complete thI needed Iaintenanct or repair. The Lot Owner exercising thii iaiement right ihall be liable for the prompt repair of any damage to the Lot over which thiI easement ii lxerciIed which is cauIed by the maintenance or repair work. The damaged portions of iuch Lot shall be restored to substantially the same condition ai exiited prior to the damage. Section 6. Easement for Entry. In addition to the right of the Board to exercise self-help aI provided £n Article XII, Section 2 hereof, the Board shall have the right, but ihall not be obligated, to enter upon any property within the Community for emergency, security, and safety reasons, which right may be exercised by the manager, and all policemen, firemen, ambulance perionnel, and similar emergency personnel in the performance of their respective duties. Except in an emergency iituation, entry ihall only be during reaionable hours and after notice to the Owner, and the entering party shall be responilble for any damage cauIed. ThiI right of entry Ihall include the right of the Board to enter to cure any condition which may increase the possibility of a fire, ilope eroIion, or other hazard in the event an Owner or Occupant fails or refuses to cure the condition upon request by the Board. Soction 7. EaIomentI for Entrv FIaturiI and s~Feet ~$qn~. There is hereby reserved to Declarant and the Association an easement over and upon each Lot for ingress, egress, installation, construction, landscaping and maintenance of entry features and itreet ilgnI for the Community. The easement and right herein reierved shall include the right to cut, remove and plant trees, shrubbery, flowerl and other vegetation around all entry featureI and the right to grade the land under and around the entry featurei. Article II! General ProviiionI Section 1. Enforceient, Each Owner and every Occupant of a Lot shall comply strictly with the Bylaws, the rules and regulationi, the use restrictions, aI they may be lawfully amended or modified from time to time, and with the covenanti, conditions, and restrictions Iet forth in this Declaration and in the deed to his or her Lot, if any. The Board of Directors may impose fines or other sanctioni, which shall be collected ai provided herein for the collection of assessments. Failure to comply with thiI Declaration, the Bylaws or the rules and regulations shall be grounds for an action to recover lumi due for damages or injunctive relief, or both, maintainable by the Board of DirectorI, on behalf of the Association, or, in a proper case, by an aggrieved Owner. Failure by the Association or any Owner to enforce any of the foregoing ihall in no event be .de~med a waiver of the right to do so thereafter. The Board shall have the right to record in the appropriate land records a notice of violation of the Declaration, Bylawi, rules and regulations, or use restrictions and to assess the cost of recording and removing such notice against the Owner who is responsible (or whose Occupants are responsible) for violating the foregoing. 18 Section 2. Self-HelD. In addition to any other remedies provided for herein, the Association or its duly authorized agent shall have the power to enter upon a Lot or any portion of the Common Property to abate or remove, using such force ae may be reasonably necessary, any structure, thing or condition which violates this Declaration, the Bylaws, the rules and regulations, or the use restrictions. Unless an emergency situation exists, the Board shall give the violating Lot Owner ten (10) days' written notice of its intent to exercise self-help. Notwithstanding the foregoing, vehicles may be towed after reasonable notice. All costs of self-help, including reasonable attorney's fees actually. incurred shall be assessed against the violating Lot Owner and shall be collected' as provided for herein for the collection of assessments. Section 3. ~ration. The covenants and restrictions of this Declaration shall run with and bind the Community, and shall inure to the benefit of and shall be enforceable by the Association Or any Owner, their respective legal representatives, heirs, successors, and assigns, perpetually to the extent permitted by law; provided, however, if Georgia law limits the period during which covenants restricting lands to certain uses may run, any provisions of this Declaration affected thereby shall run with and bind the land so long as permitted by such law, after which time any such provisions shall be (a) automatically extended for successive periods of ten (10) years, unless a written instrument reflecting disapproval signed by the then Owners of at least two- thirds (2/3) of the Lots and Declarant (so long as Declarant owns any property for development and/or sale in the Community or has the right unilaterally to annex additional property to the Community) has been recorded within the year immediately preceding the beginning of a ten (10) year renewal period agreeing to change such provisions, in whole or in part, or to terminate the same, in which case this Declaration shall be modified or terminated to the extent specified therein~ or (b) extended as otherwise provided by law. Every purchaser or grantee of any interest (including, without limitation, a security interest) in any real property subject to this Declaration, by acceptance of a deed or other conveyance therefor, thereby agrees that such provisions of this Declaration may be extended and renewed as provided in this Section. Section 4. Amendment. This Declaration may be amended unilaterally at any time and from time to time by Declarant (a) if such amendment ia necessary to bring any provision hereof into compliance with any applicable governmental statute, rule, or regulation or judicial determination which shall be in conflict therewith~ (b) if such amendment is necessary to enable any reputable title insurance company to issue title insurance coverage with respect to the Lots subject to this Declaration~ (c} if such amendment is required by an institutional or governmental lender or purchaser of Mortgage loans, including, for example, the Federal National Mortgage Association or Federal Home Loan Mortgage Corporation, to enable such lender or purchaser to make or purchase Mortgage loans on the Lots subject to this Declaration; or (d) if such amendment is necessary to enable any governmental agency or reputable private insurance company to guarantee or insure Mortgage loans on the Lots subject to this Declaration~ provided, however, any such amendment shall not adversely affect the title to any Owner's Lot unless any such Lot Owner shall consent thereto in writing. Further, so long as Declarant has the right unilaterally to subject additional property to this Declaration aa provided in Article IX hereof, Declarant may unilaterally amend this Declaration for any other purpose; provided, however, any such amendment shall not materially adversely affect the substantive rights of any Lot Owner hereunder, nor shall it adversely affect title to any Lot without the consent of the affected Lot Owner. In addition to the above, this Declaration may be amended upon the affirmative vote or written consent, or any combination thereof, of Owners of at least two-thirds (2/3) of the Lots (other than Lots of Declarant so long as the consent of Declarant is required) and the consent of Declarant (so long as Declarant owns any property for development and/or sale in the Community or has the right unilaterally to annex additional property, to the Community). Amendments to this ~eclaration shall become effective upon recordation, unless · later effective date is specified therein. No provision of this Declaration which reserves or grantl special rights to Declarant shall be amended without the prior written consent of Declarant so long as Declarant owns any property primarily for development and/or sale in the Con, unity or subject to annexation by Declarant to the Co~uunity. Any lawsuit challenging any aspect of an amendment to this Declaration must be filed in the Superior Court of Fayette County, Georgia within one (1) year of the recordation of mush amendment in the Fayetts County, Georgia land records. Section 5. Gender and Gra~ar. The singular, whe~ever used herein, shall be construed to mean the plural, when applicable, and the use of the masculine pronoun shall include the neuter and feminine. Section 6. ~_~. Whenever possible, each provision of this Declaration shall be £nterpreted in such manner as tabs effective and valid, but if the application of any provision of this Declaration to any Person or to any property shall be prohibited or held invalid, such prohibition or invalidity shall not affect any other provision or the application of any provision which can be given effect without the invalid provision or application, and, to this end, the provisions of this Declaration are declared to be severable. Section 7. Captions. The captions of each Article and Section hereof, as to the contents of each Article and Section, are inserted only for convenience and are in no way to be construed as defining, limiting, extending, or otherwise modifying or adding to the particular Article or Section to which they refer.. Section 8. Preparer. This Declaration was prepared by Young & Young, P.C., 181 14th Street, N.E., 2nd Floor, Atlanta, Georgia 30309. Section 9. Conveyance of Commn Property bv Declarant to Associatio~ Aaa~onment of Contracts. Declarant na¥ transfer or convey to the Association any personal property and any improved or unimproved real property, leasehold, eae~nent, or other property interest. Such conveyance shall be accepted by the Association, and the property shall thereafter be Common Property to be maintained by the Association for the benefit of all or a part of its members. Lakes, ponds, and shorelines shall, without limitation, be included in the property that may be conveyed by Declarant and which shall be accepted by the Association. Declarant shall not be required to make any improvements whatsoever to property to be conveyed and accepted pursuant to this Section, including, without limitation, dredging or otherwise removing silt from any lake or pond that may be conveyed. The Association shall also accept assignment of any contracts entered into by Declarant for the benefit of the Association or the Owners. Section 10. Perpetuities. If any of the covenants, conditions, restrictions, or other provisions of this Declaration shall be unlawful, void, or voidable for violation of the rule against perpetuities, then such provisions shall continue only until twenty-one (21) years after the death of the last survivor of the now living descendants of Elizabeth II, Queen of England. Section 11. Indemnification. In accordance with the Georgia Nonprofit Corporation Code and to the full extent allowed, the Association shall indemnify every Person who was or is a party or who is threatened to be made a party to any ~h~eatened, pending, or completed action, suit, or proceeding, whether civil, ~rlminal, administrative, or investigative (other than an action by or in the right of the Association), by reason of the fact that such Person is or was serving as a director or officer of the Association against any and all expenses, including attorneys' fees, imposed upon or reasonably incurred in connection with any action, suit, or proceeding, if such Person acted in a manner reasonably believed to be in or not opposed to the best interests of the Association and, 2O with respect to any criminal action or proceeding, had no reasonable cause to believe his conduct was unlawful. Any indemnification hereunder shall be made by the Association only as authorized in a specific case upon a determination that indemnification of the Person is proper under the circumstances. Section 12. Construction and Sele Period. Notwithstanding any provisions contained in this Declaration, the Bylaws, the Articles of Incorporation of the Association, rules and regulations, use restrictions, and any amendments to any of the foregoing, 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, a~~ assigns over, under, in, and/or on the Community, without obligation and without charge to Declarant, for the purposes of taking all actions related to or connected with construction, installation, relocation, development, sale, maintenance, repair, or replacement in the Co~unity and any other property now owned or which may in the future be owned by Declarant (such other property is hereinafter referred to as "Additional Property"). The reserved easement shall constitute a burden on the title to the Con~nunity and specifically includes, but is not limited to~ (a) the right of access, ingress, and egress for vehicular and pedestrian traffic over, under, on, or in the Community; and the right to tie into any portion of the Community with streets, driveways, parking areas, and walkwaye; and the right to tie into and/or otherwise connect and use (without a tap-on or any other fee payable to the Association or any Owner 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 facilities constructed or installed in, on, under, and/or over the Community; (b) the right to use (continually or ~rom time to time) without charge any clubhouse or similar structure and appurtenant facilities, if any, constructed by Declarant in the Community for business purposes or company functions of Declarant and any similar use, including but not limited to, sales and marketing meetings, offices for Declarant's sales or other employees and agents, a design studio, and employee parties; and (c) the right to construct, install, replace, relocate, maintain, repair, use, and enjoy signs, model residences, construction trailers, and sales offices in the Community. 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 such right, privilege, or easement shall be surrendered, conveyed, or released unless and until and except by delivery of a quitclaim deed from Declarant releasing such right, privilege, or easement by express reference thereto. If these reserved easements are exercised without annexing any Additional Property to the Community, the Owners of the affected Additional Property shall share the costs, if any, of using and maintaining utility and similar facilities, including, without limitation, electrical, telephone, natural gas, water, sewer, and drainage lines and facilities with the Owners in the Community in the proportion that the n.mher of completed dwellings on the affected Additional Property bears to the total number of completed dwellingl upon the affected Additional Property and the num~e'r of Lots in the Community. The costs of maintenance and repair of Community streets and driveways shall likewise be apportioned to the affected Additional Property if the only means of vehicular access to the affected Additional Property is across the Community. For the purposes of this provision, · dwelling on the effected Additional Property shall be considered completed when · certificate of occupancy has been granted. The allocation of expenses and the collection therefor may be done on a monthly, quarterly, or annual basis ss may reasonably be determined by the Association in accordance with this Declaration. If any of the Additional Property is added to the Community, from the time of the annexation, the sharing of costs and expenses and the use of any property so added shall be governed by this Declaration, rather than by these reserved easements. This Section shall not be amended without the prior written consent of Declarant so long as Declarant owns any property primarily for development and/or sale in the Community or has the right unilaterally to annex additional property to the Co~unity. Section 13. Books and Records. (a) Inspection by Members and Mortaaaees. This Declaration, the Bylaws, copies of rules and use restrictions, membership register, books of account, and minutes of meetings of the members of the Board and of committees shall be made available for inspection and copying by any member of the Association or by 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 of the Association or at such other reasonable place as the Board shall prescribe. (b) Rules for Inspection. The Board shall establish reasonable rules with respect to: (i) notice to be given to the custodian of the records; and (ii) hours and days of the week when such an inspection maybe made; (iii) payment of the cost of reproducing copies of documents. (c) InsPection by Directors. Every director shall have the absolute right at any reasonable time to inspect all books, records, and documents of the Association and the physical properties owned or controlled by the Association. The right of inspection by a director includes the right to make extra copies of documents at the reasonable expense of the Association. Section 14. Financial Statements. Financial statements for the Association shall be compiled annually in the manner as the Board of Directors may decide; provided, however, after having received the Board's financial statements at the annual meeting, the Owners, by a Majority vote, may require that the financial statements of the Association be audited as a common expense by a certified public accountant. Upon written request of any institutional holder of a first Mortgage and upon payment of all costs associated therewith, such holder shall be entitled to receive a copy of the audited financial statements of the Association within ninety (90) days of the date of the request. Section 15. Not%co of Sale Or Lease. In the event an Owner sells or leases his or her Lot, the Owner shall give to the Association, in writing, the name of the purchaser or lessee of the Lot and such other information as the Board may reasonably require. Section 16. ~qreements. Subject to the prior approval of Declarant, so long as Declarant has an option to unilaterally subject additional property to this Declaration as provided in Article IX above, all agreements and ~e~erminations, including settlement agreements regarding litigation involving ~he Association, lawfully authorized by the Board of Directors shall be binding upon all Owners, their heirs, legal representatives, successors, assigns, and others having an interest in the Community or the privilege of possession and enjoyment of any part of the Community. 22 Section 17. Variances. Notwithstanding anything to the contrary contained herein, the Board of Directors or its designee shall be authorized to grant individual variances from any of the provisions of this Declaration, the Bylaws and any rule, regulation or use restriction promulgated pursuant thereto if it determines that waiver of application or enforcement of the provision in a particular case would not be inconsistent with the overall scheme of development for the Community. Section 18. Litieation. No Judicial or administrative proceeding shall be commenced or prosecuted by the Association unless approved by at least seventy-five percent (75%) of the Total Association Vote. This Section shall notz' apply, however, to (a) actions brought by the Association to enforce the provisions of this Declaration (including, without limitation, the foreclosure of liens), (b) the imposition and collection of assessments as provided in Article IV hereof, (C) proceedings involving challenges to ad valorem taxation, or (d) counterclaims brought by the Association in proceedings instituted against it. This Section shall not be amended unless such amendment is made by Declarant pursuant to Article XII, Section 4 hereof, or is approved by the percentage votes, and pursuant to the same procedures, necessary to institute proceedings as provided above. Section 19. ImpOSe4 Riahts. The Association may exercise any right or privilege given to it expressly by this Declaration, the Bylaws, the Articles of Incorporation of the Association, any use restriction or rule, and every other right or privilege reasonably to be implied from the existence of any right or privilege given to it therein or reasonably necessary to effectuate any such right or privilege. IN WITNESS WHEREOF, the affixed the seal this /q~ day of undprsigned has executed this instrument and {~~_____, 1994. Signed, sealed and delivered this this day of , 1994, in .~e presence 9'~:__ /~ JO~N WIELAND HOMES, INC., a Georgia corporat ion Assistant Secretary [Corporate Seal ] 23 EXHIBIT The following words, when used in this Declaration or in any amendment thereof (unless the context shall prohibit), shall have the following meanings~ (a) 'Association' shall mean and refer to The Heritage Coa~aunity Association, Inc., a nonprofit ~eorgia corporation, its successors and assigns. (b) 'Board 'of Directors' or "Board" of the Association shall be the al~pointed or elected body, as applicable, having its normal meaning under Georgia corporate law. (c) 'BYlaws' shall refer to the Bylaws of The Heritage Community Association, Inc., attached to this Declaration as Exhibit "D" and incorporated herein by this reference. (d) "Common Property" shall mean any and all real and personal property and easements and other interests therein, together with the facilities and improvements located thereon, now or hereafter owned by the Association for the common use and enjoyment of the O~ners. (e) 'Community" shall mean and refer to that certain real property and interests therein described in Exhibit "B", attached hereto, and (i) such additions thereto as may be made by Declarant (or its Mortgagee or transferee, as provided in the Declaration) of all or any Portion of the real property described in Exhibit "C', attached hereto; and (ii) such additions thereto as may be made by the Association (as provided in the Declaration) of other real property. (f) 'Community-Wide Standard" shall mean the standard of conduct, maintenance, or other activity generally prevailing in the Community. Such standard may be more specifically determined by the Board of Directors of the Association. Such determination, however, must be consistent with the Co~nunity Wide Standard originally established by Declarant. (g) "Declarant" shall mean and refer to John Wieland Homes, Inc., a Georgia corporation and its successors-in-title and assigns, provided any such successor-in-title or assign shall acquire for the purpose of development or sale all or any portion of the remaining undeveloped or unsold portions of the real property described in Exhibit 'B", attached hereto, or in Exhibit "C", attached hereto, and provided further, in the instrument of conveyance to any such successor-in-title or assign, such successor-in-title or assign is designated as 'Declarant" hereunder by the grantor of such conveyance, which grantor shall be "Declarant" hereunder at the time of such conveyance~ provided, further, upon such designation of such successor Declarant, all rights of the former Declarant in and to such status as "Declarant" hereunder shall cease, it being understood that as to all of the property described in Exhibit 'B", attached hereto, and in Exhibit 'C', attached hereto, which is now or hereafter subjected to this Declaration, there shall be only one Person or legal entity entitled to exercise the rights and powers of "Declarant" hereunder at any one point in time. (h) "Lot" shall mean any plot of land within the Community, whether or not ..i~.provements are constructed thereon, which constitutes or will constitute, after ~he construction of improvements, a single dwelling site as shown on the plat for the Community, or amendments thereto, recorded in the land records of the county where the Community is located. The ownership of each Lot shall include, and there shall pass with each Lot as an appurtenance thereto, whether or not separately described, all of the right, title, and interest of an Owner in the Co~non Property, which shall include, without limitation, membership in the Association. (i) "Ma%oritv' means those eligible votes, Owners, or other group as the context may indicate totalling more than fifty percent (50%) of the total eligible number. (j) "Mortaaoe' means any mortgage, deed to secure debt, and any and all other similar instruments used for the purpose of conveying or encumbering real property as security for the payment or satisfaction of an obligation. (k) "Mortaaoee" shall mean the holder of a Mortgage. (1) "Occupant' shall mean any Person occupying all or any portion of a Lo~~ or other property located within the Con~unity for any Period of time, regardless of whether such Person is a tenant of the O~ner of such property. (m) "Owner' shall mean and refer to the record owner, whether one or more Persons, of the fee simple title to any Lot located within the Community, excluding, however, any Person holding such interest merely as security for the performance or satisfaction of any obligation. (n) "Person' means any natural person, as well as a corporation,Joint venture, partnership (general or limited}, association, trust, or other legal entity. (o) "SuDolementarv Declaration" means an amendment or supplement to this Declaration which subjects additional property to this Declaration or imposes, expressly or by reference, additional restrictions and obligations on the land described therein, or both. (p) "Total Association VQ~9" means all of the votes attributable to m~ers of the Association (including votes of Declarant) and the consent of Declarant (so long as Declarant owns any property for development and/or sale in the Co~nunity or has the right unilaterally to annex additional property to the Community). BO01(9 42 P/ GE EXHIBIT "B~ Property Submitted ALL THAT TRACTOR PARCEL OF LAND lying and b ming in Land Lot 156 of the 7th District of F&yetta County, Georgia, containing approximately 14.10 acres, and boingknown as Phaae I of The Heritage subdivision as shown on that certain Final Plat for The Heritage - Phase I, dated July 11, 1994, prepared by Southeastern Engineers, Inc., a~d recorded on July 15, 1994 in Plat Book 25, Pages 49-50, Fayette County, ~eorgia land records. EXHIBIT Additional Property Which Can Be Unilaterally Submitted bv Declarant ALL THAT TRACT OR PARCEL OF LAND lying and being in Land Lots 133, 134, 156, 157, 165, and 166 of the 7th District of Fayette County, Georgia. .~ BOOK 9z~ 2 PAGE 591 EXHIBIT BYLAWS OF TH~ B~RXTAGB COMM'dNXTY ABSOCXATZON, XN¢. YOUNG & YOUNG, P.C. 181 Fourteenth Street, N.E. Second Floor Atlanta, Georgia 30309 (404) 892-0237 Article II. III. IV. - TABLE OF CONTENTS - Section NAME, MEMBERSHIP, AND DEFINITIONS 1. Name 2. Membership 3. Definitions ASSOCIATION= MEETINGS, QUORUM, VOTING, PROXIES 1. Place of Meetings 2. First Meeting and Annual Meetings 3. Special Meetings 4. Notice of Meetings 5. Waiver of Notice 6. Adjournment of Meetings 7. Voting 8. Proxies 9. Quorum 10. Action Without a Formal Meeting 11. Action By Written Ballot BOARD OF DIRECTORS: NUMBER, POWERS, MEETINGS A. GomDosition and Selection 2. 3. 4. 5. 6. 7. Governing Body; Composition Directors Appointed by Declarant N~er of Directors Nomination of Directors Election and Term of Office Removal of Directors Vacancies B. Meetinos 8. Organization Meetings 9. Regular Meetings 10. Special Meetings 11. Waiver of Notice 12. Quorum of Board of Directors 13. Compensation 14. Open Meetings 15. Executive Session 16. Action Without a Formal Meeting 17. Telephonic Participation C. ~gwers and Duties 18. Powers 19. Management Agent 20. Fining Procedure OFFICERS 2. 3. 4. 5. 6. 7. 8. Officers Election, Term of Office, and Vacancies Removal President Vice President Secretary Treasurer Resignation Paoe 1 1 1 1 $ $ $ $ 6 6 ? ? ? ? ? V. VI. Sectio~ COMMITTEES MISCELLANEOUS 1. Fiscal Year 2. Parl£amentary Rules 3. Confl£cts 4. Amendment paq~ 7 8 8 8 8 8 BYLAWS OF THE HERXTAGE COMMUNXTY ASSOCXATXOM, XMCo Article l Name, Membership, and Definitions Section 1. Name. The name of the Association shall be The Heritage Con~nunity Association, Inc. (the *Association"). Section 2. Membershie. The Association shall have one (1) class of membership, as is more fully set forth in that Declaration of Protective Covenants for The Heritage (this Declaration, as amended, renewed, or extended from time to time, is hereinafter sometimes referred to as the "Declaration"), the terms of which pertaining to membership are specifically incorporated by reference herein. Section 3. Definitions. The words used in these Bylaws shall have the same meaning as set forth in the Declaration, unless the context shall prohibit. Article II A~sociationz Meotinos. Ouorut, votine, Proxies Section 1. Place of Meetings. Meetings of the Association shall be held at the principal office of the Association or at such other suitable place convenient to the members a8 may be designated by the Board of Directors, either in the Coflwnunity or as convenient thereto as possible and practical. Section 2. First aoetin~ and Annual Meetin~s. An annual or special meeting shall be held within one (1) year from the date the Declaration ie recorded. Annual meetings shall be set by the Board so as to occur no later than sixty (60) days after the close of the Association's fiscal year. If the day for the annual meeting of the member8 is a legal holiday, the meeting will be held at the same hour on the first day following which is not a legal holiday (excluding Saturday and Sunday). Section 3. SpeCie! Meetin~s. The President may call spec£al meetings. In addition, it shall be the duty of the President to call s special meeting of the Association if so directed by resolution of a Majority of the Board of Directors or upon a petition signed by at least twenty-five percent (25%) of the Total Asoociation Vote (the consent of Declarant shall not be required). The notice of any special meeting shall state the date, time, and place of such meeting and the purpose thereof. No business shall be transacted at s special meeting, except as stated in the notice. Section 4. Notice of Meetin~s. It shall bo the duty of the Secretary to mail or to cause to be delivered to the O~ner of record of each Lot a notice of each annual or special meeting of the A88ociat£on stating the purpose of the special meeting, as well as the time and place where it Is to bo held. If an Owner wishes notice to bo given at an address other than his or her Lot, he or she shall have designated by notice in writing to the Secretary such other address. The mailing or delivery of a notice of meeting in the manner provided in this Section shall bo considered service of notice. Notices shall be served not less than ten (10) nor more than thirty (30) days before a meeting. Section S. Waiver of Notice. Waiver of notice of a meeting of tho mo mb ore 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. Attendance at a meeting by a member, whether in person or by proxy, shall be deemed waiver by such member of notice of the time, date, and place thereof, unlii! Iuch m~mI~r ii~l~lfically ob~Ictl to lick of proper notice at the thne the Iieting ii called to order. lection &. Adiournient of Neetino~. If any meetinqs of the Association cannot be heldbecauIa a quorum ii not preIent, a Najority of the memberi who are priiint at IuCh Iting, i£ther in perion or by proxy, Iay adjourn thI Ieeting to a timenot leii than five (5) nor I ore than thirty (30) dayI from the time the original a~eting was called. At such adjourned meeting at which a quoru~ is presInt~ any buiineIs which Iight havibIin transacted at the meetinq originally callId may b~ tranIactid without furthir notici. Section ?o Voting. The voting rights of theme m bari Ihall be as Iet in the Declaration, and iuchvoting rightI are Ipecifically incorporated heriln. Section 8. Proxi~I. At all Itingi of memberi, inch member may vote in l~IrIOn or by proxy. All proxiei Ihall be in writing, dated~ and filed with the Secretary before the appointed time of each meeting. Every proxy ihall be revocable and ihall auto~atically ceaie upon conveyance by the member of his or her Lot, or upon receipt of notice by the Secretary of the death or Judicially dIclared incompetence of a member, or of written revocation~ or upon the expiration of eleven (11) monthI from the date of the proxy. IIction V. Ouorui. The presence~ in person or by proxy, of twenty-five percent (25%) of the total eligible Association vote shall constitute a quorum at all meetings of the Association. The memb~ri present at a duly called or held Ieeting at which a quorum is present may continue to do business until adJournment~ notwithitanding the withdrawal of enough members to leave less than SIction 10. Action Without A ?ori~l Xaetina. Any action to be taken at a meeting of the me, bari or any action that may be taken at a meeting of the · I~bers may be taken without a meeting if one or more conientI, in IItting forth the action in taken, ihall be signId by memberi holding the voting po~er required to pass such action at a meeting held on the date that the last conient is executed and iuch action ii conientid to by Diclarant if required. Such action ihall be effective upon riceipt by the Association of a Iufficient number of IuCh consents executed by current me m bari unleii a later effective date ii specified therein. Each iigned consent ihall be delivered to the Association and shall be included in the minutei of meetings of members filed in the permanent records of the Association. IIction 11. action By #ritten hllot. Any action to be taken at any annual, regular or ipecial meeting of members may be taken without a meeting if approved by written ballot ai provided herein. The Association shall deliver a written ballot to each member entitled to vote on the matter. The written ballot Ihall iet forth each propoied action and provide an opportunity to vote for or against each proposed action. Approval by written ballot of an action shall only be valid when the number of votes cast by ballot equals or exceeds the quorum required to be present at a meeting held to authorize such action and the of approvals equals or exceeds the number of votei that would be required to approve the matter at a meeting at which the total number of votes cast was the same ai the number of votes cast by ballot. All solicitations for votei by written ballot shall indicate the number of responses needed to meet the quorum requirementsI state the percentaqe of approvals necessary to approve each matter (other than election of directors); and specify the time by which a ballot must ~Ye received by the Association in order to be counted. A timely written ballot received by the Aisociat£on may not be revoked without the consent of the Board of Directors. The results of each action by written ballot shall be certified by the Secretary and shall be included in the minutei of meetings of members filed £n the permanent records of the Association. Article ~I~I.L"~ of Dlrectors~ ~-~ero Powers. Meetinos A. Com:)osition and Selection. Section 1. GoveFnino Bodvs Composition. The affairs of the Association shall be governed by a Board of Directors. Except as provided in Section 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 the same time. Section 2. Directors AppoSntod bv Declarant. Declarant shall have ihs right to appoint or remove any m~mher or members of the Board of Directors or any officer or officers of the Association until such time as the first of the following events shall occurx (a) tho expiration of ten (10) years after the date of the recording of the Declaration; (b) the date on which forty-nine (49) Lots shall have been conveyed by Declarant to Owners other than a Person or Persons constituting Declarant; or (c) the surrender by Declarant in writing of the authority to appoint and remove director8 and officers of the Association. Each O~ner, by acceptance of a deed to or other conveyance of a Lot, vests in Declarant such authority to appoint and remove director8 and officers of the Association. The directors selected by Declarant need not be O v mere or residents in the Community. Section 3. Humber of Directors. The Board shall consist of three (3) members; provided, however, the Board may at any time after the meeting at which the Owners elect directors pursuant to Article III, Section 5(a) of these Bylaws, increase the number of Board members to five (5). Section 4, Nomination of Directors. Elected directors shall be nominated from the floor and may also be nominated by a nominating committee, if such a committee is established by the Board. All candidates shall have s reasonable opportunity to commun£cate their qualifications to the members and to solicit votes. Section 5, Slection and Term of Off$ce, Owner-elected directors shall be elected and hold office as follows~ (a) After Declarant's right to appoint directors and officers terminates, ~he Association shall call a special meeting to be held at which Owners shall elect three (3) directors. (b} At annual meetings of the membership thereafter, directors shall be elected. All elig~blemembers of the Association shall vote on all directors to be elected, and the candidate(s) receiving the most votes shall be elected; provided, however, the £nitially elected directors shall serve the remainder of their terms. The term of one (1) director shall be fixed at one (1) year, the term of one (1) director shall be fixed at two (2) years, end the term of one (1) director shall be fixed at throe (3} years. At the expiration of the initial term of office of each reopectivem~-~er of the Board of Directors, a Successor shall be elected to serve for a term of two (2) years. The mm~ers of the Board of Directors shall hold office until their respective successors shall have boon elected by the Association. Section 6. Removal of D£roctors. At any regular or special meeting of the Assoc£ation duly called, any one (1) or more of the ~hers of the Board of Directors may be removed, with or without cause, by a Majority 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 BOOK PA6E the purpose thereof and shall be given an opportunity to be heard at the meeting. Additionally, any director who has three (3) consecutive unexcused absences from Board meetings or who is delinquent in the payment of an assessment for more than twenty (20) days may be removed by a Majority vote of the directors at a Meting, I quorum being present. This Section shall not apply to directors appointed by Declarant. SectLon 7. Vacancies. Vacancies in the Board of Directors caused by any reason, excluding the re~val of a director by vote of the Association, shall be f£11ed by a vote of the Majority of the remaining directors, even though less than a quorum, at any meeting of the Board of Directors. Each Person so selected shall serve the unexpired portion of the term. Section 8. Or~enisationbtinos. The first meeting of the members of the Board of 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 the Board. Section 9. Regular Masteries. Regular meetings of the Board of Directors may be held at such time and place as shall be determined from time to time by a Majority of the directors, but at least four (4) such Matings shall be held during each fiscal year with at least one (1) per quarter. Notice of the regular schedule shall constitute sufficient notice of such meetings. Section 10. 8mecial MeetinQs. Special meetings of the Board of Directors shall bo held when requested Dy the President, Vice President or by any two (2) directors. The notice shall specify the time and place of the Meting and the nature of any special business to be considered. The notice shall be given to each director by one of the following methods~ (a) by personal delivery; (b) written notice by first class mall, postage prepaid; (c) by telephone communication, either directly to the director or to a Person at the director's home or office who would reasonably be expected to co-~-~nicate such notice proa~ptly to the director; (d) by telegram, charges prepaid; or (e) by co~aercial delivery service to such director's home or office. All such 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 first class mail shall be deposited into a United States mailbox at least four (4) days before the time set for the Meting. Notices given by personal delivery, telephone, or telegraph company shall be given at least forty-eight (48) hours before the t~ set for the Meting. Section 11. Waiver of Notice. The transactions of any meeting of the Board of Directors, however called and noticed or wherever held, shall be as valid as though taken at a meeting duly held after regular call and notice, if (a) a quorum is present, and (b) either before or after the Meting, each of the directors not present signs a written waiver of notice, a consent to holding the Meting, 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 before or at its commencement about the lack of adequate notice. Section 12. Ouorv~ of Board of Directors. At all meetings of the Board of Directors, a Majority of the directors shall constitute a quorum for the -~ransaction of business, and the votes of a Majority of the directors present at a meeting at which a guorum is present shall constitute the decision of the Board of Directors. A meeting at which a quorum is initially present may continue to transact business, notwithstanding the withdrawal of directors, if any action taken is approved by at least a MaJority of the required quorum for that meeting. If any meeting cannot be held because a quorum is not present, a Majority of the directors who are present at such meeting may adjourn the Meting to a time not less than five (5) nor more than thirty (30) days 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 called may be transacted without further notice. Section 13. C~pensation. No director shall receive any compensation from the Association for acting as such unless approved by a MaJor£ty of the Total Association Vote. Section la. O~en Meetin~s. All meetings of the Board shall be open to all members, but e~m~ers other than directors may not participate in any discussion,- or deliberation unless expressly so authorized by the Board. Section 15. ~X~cutive Session. The Board may adjourn a meeting and reconvene in executive session to discuss and vote upon personnel matters, litigation in which the Association is or may become involved, and orders of business of a similar nature. The nature of any and all business to be considered in executive session shall first be announced in open session. Section 16. ~ction Without A Fo~al Meetina. Any action to be taken at a meeting of the directors or any action that may be taken at a meeting of the directors may be taken without a meeting if a consent in writing, setting forth the action so taken, shall be signed by all of the directors. Section 17~ Telephonic Particination. One (1) or nors directors may participate in and vote during any regular or special meeting of the Board by telephone conference call or similar communication equipment by means of which all directors pa~cicipating in the meeting can hear each other at the 8ams time, and those directors so participating shall be present at such meeting. Any such meeting at which a quorumparticipates shall constitute a regular meeting of the Board. C. pgwgrs and Duties. Section 18. PMrs. The Board of Directors shall be responsible for the affairs of the Association and shall have all of the powers and duties necessary for the administration of the Association's affairs and, as provided by law, may do &11 acts and things as are not by the Declaration, the Articles of Incorporation of the Association, or these Bylaws directed to be done and exercised exclusively by theaters. In addition to the duties imposed by these Bylaws or by any resolution of the Association that may hereafter be adopted, the Board of Directors shall have the l~er to and be responsible for 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 O~ner to the common expenses; (b) making assessments to defray the co~n expenses, establishing the moans and methods of collecting such assessments, and establishing the period of the installment payments of the annual assessment; (c) providing for the operation, care, upkeep, and maintenance of all areas which are the maintenance responsibility of the Association; (d) designating, hiring, and dismissing the personnel necessary for the operation of the Association and, where appropriate, prov~ding for the compensation of such personnel and for the purchase of equil~nt, supplies, and material to be used by such personnel in the performance 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; 5 (f) making and amending usa restrictions and rules and regulations~ (g) opening of bank accounts on behalf of the Association and designating the signatories required~ (h) enforcing by legal means the provisions of the Declaration, theme Bylaws, and the rules and regulations adopted by it, and bring any proceedings which may be instituted on behalf of or against the Owners concerning the Asaociation~ (l) obtaining and carrying insurance against casualties and liabilities, as provided in the Declaration, and paying the premium cost thereof~ (J) paying the cost of all services rendered to the Association or its which are not directly chargeable to O~ners~ (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 (1) contracting with any Person for th. performance of various duties and functions. The Board shall have the power to enter into co~aon management agreements with trusts, condominiums, or other associations. Any and all functions of the Association shall be fully transferable by the Board, in whole or in part, to any other entity. Section 19. ~R~. The Board of Directors may employ for the Association a professional management agent or agents at a compensation established by the Board of Directors to Perform such duties and services as the Board of Directors shall authorize. Declarant or an affiliate of Declarant may be employed as managing agent or Manager. The term of any management agreement shall not exceed one (1) year and shall be subject to termination by either ~arty, without cause and withoutpenalty, upon ninety (90) days' written notice. Section 20. F~nina Procedure. The Board shall not impose a fine (a late charge shall not constitute a fine) unless and until the following procedure is followed= (a) Demand. Written demand to cease and desist from an alleged violation shall be served upon the alleged violator specifying= (l) the alleged violation~ (ii) the action required to abate the violations and (iii) a time period, not less than ten (10) days, during which the violation may be abated without further sanction, if such violation is a continuing one, or a statement that any further violation of the same rule may result in the imposition of a fine, if the violation is not continuing. The Board or its designee may demand immediateabatement in such circumstances which, in the Board's determination, pose a danger to safety or property. (b) Notice. Within twelve (12) months of such demand, if the violation continues past the period allowed in the demand for abatement without penalty, or if the same rule is subsequently violated, the Board may, upon notice stating .~6 nature of the violation, impose a fine. Article IV Officers Section 1. Officers. The officers of the Association shall be a President, Vice President, Secretary, and Treasurer. Any two (2) or more offices maybe held by the same Person, excepting the offices of President and Secretary. The President and Treasurer shall be elected from among the members of the Board of Directors. Section 2. election. Term of Office. and Vacancies. Except during the period in which Declarant has the right to appoint the officers of th~' Association under Article III, Section 2, of these Bylaws, the officers of the Association shall be elected annually by the Board of Directors at the first meeting of the Board of Directors following each annual meeting of the members. A vacancy in any office arising because of death, resignation, removal, or otherwise may be filled by the Board of Directors for the unexpired portion of the term. Section 3. Re,oval. Any officer may be removed by the Board of Directors whenever, in its judgment, the best interests of the Association will be served thereby. Section 4. President. 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. Vice President. 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. Secreta~. The Secretary shall keep the minutes of all meetings of the Association and of the Board of Directors and shall have charge of such books and papers as the Board of Directors may direct and shall, in general, perform all duties incident to the office of the secretary of a corporation organized in accordance with ~eorgis law. Section 7. Trmaeurer. Tho Treasurer shall have the responsibility for the Keeociation's funds and securities and shall be reeponoibls for keeping full and accurate financial records and books of account showing all 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 n~me of the Association or the managing agent in such depositories as may from time to t~me be designated by the Board of Directors. Section 8. Rosianation. Any officer may resign at any time by giving written notice to the Board of Directors, the President, or the Secretary. Such resignation shall take effect on the date of the receipt of such notice or at any later time specified therein, and unless otherwise specified therein, the acceptance of such resignation shall not be necessary to make it effective. · rticle V Coeaitteee Committees to perform such tasks and to serve for such periods as may be designated by the Board are hereby authorized. Each committee shall be composed and shall operate in accordance with the terms of the resolution of the Board of Directors designating the committee or with rules adopted by the Board of Directors. Article VX Hection 1. ~. The fiscal year of the Association shall be determined by resolution of the Board. In the absence of such a resolution, the fiscal year shall bo the calendar year. Hection 2. Per~imntarvRules. Roberts Rules of Order (current edition) shall govern the conduct of all Association proceedings, when not in conflict with ~oorgia law, the Articles of Incorporation of the Association, the D~claration, these Bylaws, or a ruling made by the Person presiding over the proceeding. Hection 3. ~. If there are conflicts or inconsistencies between the provisions of~eorgia law, the Articles of Incorporation of the Association, the Declaration, and these Bylaws, the provisions of Georgia law, the Declaration, the Articles of Incorporation of the Association, and the Bylaws (in that order) shall prevail. Hection %. Amendment. The provisions of the Declaration applicable to amendment of that instrument shall apply to any amendment of these Bylaws; provided, however, that the U.S. Deportment of Veterans Affairs ('VA') (if it is then guaranteeing any Mortgage in the Community as determined by telephone inquiry to VA) and/or the U.S. Department of Housing and Urban Development ('HUD") (if it is then insuring any Mortgage in the Community as determined by consulting the current list of approvod subdivisions regularly published by HUD and furnished to Mortgage companies) shall have the right to veto material amendments to these Bylaws for as long as Declarant has the right to appoint and remove the directors and officers of the Association. After recording, please return to: Young & Young, P.C. 181 Fourteenth Street, N.E. Second Floor Atlanta, Georgia 30309 BOOK FILED a ..... FAYEIT ¢ LLJ.NTY. gA. W. .B LLARD,¢LERK Page 561 SUPPLEMENTARY DECLARATION TO DECLARATION OF PROTECTIVE COVENANTS FOR THE HERITAGE THIS SUPPLEMENTARY DECLARATION is made this~"c~~ day of April, 1995, by JOHN WIELAND HOMES, INC., a Georgia corporation (hereinafter referred to as "Declarant"). BACKGROUND STATEMENT Declarant has executed that certain Declaration of Protective Covenants for The Heritage, which was recorded on September 23, 1994 in Deed Book 942, Page 561 et seq., Fayette County, Georgia records (hereinafter as supplemented and/or amended from time to time the "Declaration"). The Declaration provides in Article IX, Section 1, thereof that the Declarant, with the consent of the owner thereof, has the unilateral right, until ten (10) years after the recording of the Declaration, to submit to the provisions of the Declaration portions of the real property described on Exhibit "C" to the Declaration. Declarant is the owner of the real property described on Exhibit "A" hereof, which is a portion of the real property described on Exhibit "C" to the Declaration. Declarant desires to subject to the provisions of the Declaration the real property described on Exhibit "A" hereof. WITNESS ETH: NOW THEREFORE, pursuant to the powers retained by Declarant under Article IX, Section i of the Declaration, and in accordance with the provisions of that section, Declarant hereby subjects all of those tracts or parcels described on Exhibit "A" attached hereto to the provisions of the Declaration. Such property shall be sold, transferred, used, conveyed, occupied and mortgaged or otherwise encumbered pursuant to the provisions of the Declaration, all of which shall run with the title of such property and shall be binding upon all persons having any right, title or any interest in such property, their respective heirs, legal representatives, successors, successors-in-title and assigns. IN WITNESS WHEREOF, the undersigned, on behalf of the Declarant, have executed this Supplementary Declaration and affixed the corporate seal as of the day and year first written above. JOHN WIELAND HOMES, INC., a Georgia corporat ion Dan Fields Assistant Secretary Signed, sealed, and delivered in the presence of: soog 980 GE 341