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PeninsulaTHE PENINSULA UPON RECORDING, PLEASE RETURN TO: M. MAXINE HICKS COFER, BEAUCHAMP, STRADLEY & HICKS, LLP 99 WEST PACES FERRY ROAD, NW, SUITE 200 ATLANTA, GEORGIA 30305 DECLARATION OF COVENANTS, CONDITIONS, AND RESTRICTIONS FOR THE PENINSULA aoo~ 15 5 5 PA~E 13 3 M:\RED~0889~Peninsula'~C C R-V3 wpd THF PENINSULA ARTICLE 1. 1.1. 1.2. 1.3. 1.4. 1.5. 1.6. 1.7. 1.8. 1.9. 1.10. 1.11. 1.12. 1.13. 1.14. 1.15. 1.16. 1.17. 1.18. 1.19. 1.20. 1.21. 1.22. 1.23, 1.24, 1.25. 1.26, 1.27, 1.28. 1.29. 1.30. 1.31. 1.32. 1.33. 1.34. 1.35. 1.36. 1.37. 1.38. ARTICLE 2. 2.1. 2.2. 2.3. 2.4. 2.5. 2.6. 2.7. -TABLE OF CONTENTS - Page DEFINITIONS .......................................................... - 1 - "Additional Property". .................................................. - 1 - "ARB" "Area of Common Responsibility" . ....................................... - 1 - "Articles of Incorporation" or "Articles" . .................................... - 1 - "Association". ........................................................ - 1 - "Board of Directors" or "Board" . ......................................... - 2 - "Builder" . ........................................................... - 2 ~ "By-Laws" . .......................................................... - 2 - "City". .............................................................. - 2 - "Common Area" . ..................................................... - 2 - "Common Expenses" . ................................................. - 2 - "Community-Wide Standard" . ........................................... - 2 - "County" . ........................................................... - 2 - "Covenant to Share Costs". ............................................. - 2 - "Days". ............................................................. - 2 - "Declarant" . ......................................................... - 2 - "Design Guidelines" . .................................................. - 2 - "Development Period" . ................................................ - 2 - "Effective Date" . ..................................................... - 3 - "Exclusive Common Area" . ............................................. - 3 - "General Assessment" . ................................................ - 3 - "Governing Documents" . ............................................... - 3 - "Lake" . ............................................................. - 3 - "Lake Use Restrictions" . ............................................... - 3 ~ "Majority" . .......................................................... - 3 ~ "Master Plan" . ....................................................... - 3 - "Member" . .......................................................... - 3 - "Mortgage" . ......................................................... - 3 - "Mortgagee" . ........................................................ - 3 - "Owner" . ........................................................... - 3 - "Person" . ........................................................... - 3 - "Properties". ......................................................... - 3 - "Public Records". ..................................................... - 3 - "Special Assessment" . ................................................ - 3 - "Specific Assessment" . ................................................ - 4 - "Supplemental Declaration" . ............................................ - 4 - "Unit". .............................................................. - 4 - "Water Quality Facility". ................................................ - 4 - PROPERTY RIGHTS .................................................... - 4 - Common Area ....................................................... - 4 - Exclusive Common Area ............................................... - 5 - The Lake ........................................................... - 5 - View Impairment ...................................................... - 6 - Erosion Control, Water Quality Facilities and Buffer Zones ..................... - 6 - No Partition .......................................................... - 6 - Condemnation ....................................................... - 6 - THE PENINSULA 2.8, Actions Requiring Owner Approval ....................................... - 6 - ARTICLE 3. 3,1. 3~2. MEMBERSHIP AND VOTING RIGHTS ...................................... ~ 7 - Membership .......................................................... - 7 - Voting .............................................................. - 7 - ARTICLE 4. 4.1. 4.2. 4.3. 4.4. 4,5. 4.6. 4.7, 4.8, 4.9. RIGHTS AND OBLIGATIONS OF THE ASSOCIATION ......................... - 8 - Function of Association ................................................. - 8 - Common Area ....................................................... - 8 - Personal Property and Real Property for Common Use ....................... - 8 - Enforcement ......................................................... - 8 - Implied Rights; Board Authority .......................................... - 9 - Governmental Interests ................................................ - 9 - Indemnification ....................................................... - 9 - Dedication of or Grant of Easements on Common Area ...................... - 10 - The Lake .......................................................... - 10 - ARTICLE 5. 5.1, 5.2. 5,3. 5.4. MAINTENANCE ....................................................... - 10- Association's Responsibility ............................................ - 10 - Owner's Responsibility ................................................ - 11 - Standard of Performance .............................................. - 12 - Covenant to Share Costs .............................................. - 12 - ARTICLE 6. 6.1. 6.2. INSURANCE AND CASUALTY LOSSES .................................... - 12 - Association Insurance ................................................ - 12 - Owners' Insurance ................................................... - 15 - ARTICLE 7. 7.1. 7.2, 7.3. 7.4. ANNEXATION AND WITHDRAWAL OF PROPERTY .......................... - 15 - Annexation by Declarant .............................................. - 15 - Annexation by Membership ............................................ - 15 - Withdrawal of Property ................................................ - 15 - Amendment ........................................................ - 15- ARTICLE 8. 8.1. 8.2. 8.3. 84. 8,5. 8.6, 8.7. 8,8. 8.9. 8.10. 8.11. ASSESSMENTS ....................................................... - 16 - Creation of and Obligation for Assessments ............................... - 16 - Declarant's Obligation for Assessments .................................. - 16 - Computation of General Assessments ................................... - 17 - Reserve Budget ...................................................... o 17 - Special Assessments ................................................. - 17 - Specific Assessments ................................................ - 18 - Lien for Assessments ................................................. - 18 - Date of Commencement of Assessments ................................. - 18 - Failure to Assess ..................................................... - 19 - Exempt Property ..................................................... - 19 - Capitalization of Association ............................................ - 19 - ARTICLE 9. ARCHITECTURAL STANDARDS .......................................... - 19 - 9.1. General ............................................................ - 19- 9.2. Architectural Review ................................................. - 19 - 9.3. Design Guidelines ................................................... - 20 - 9.4. Procedures ......................................................... - 20 - 9.5. Specific Guidelines and Restrictions ..................................... - 20 - 9.6. Construction Period .................................................. - 22 - M:~ED~0889'~Peninsula~CCR -V3,wpd -ii- aoo 1555 AE ] 35 15 5 13 6 THE PENINSULA 9.7. No Waiver of Future Approvals ......................................... - 22 - 9.8. Variance ........................................................... - 22 - 9.9. Limitation of Liability .................................................. - 22 - 9.10. Enforcement ........................................................ - 23 - ARTICLE 10. USE RESTRICTIONS .................................................. - 23 - 10.1. 10.2. 10.3. 10.4. 10.5. 10.6. 10.7. 10.8. 10.9. 10.10. 10.11. 10.12. 10.13. 10.14. 10.15. 10.16. 10.17. 10.18. General ............................................................ - 23 - Rules and Regulations ................................................ - 23 - Occupants Bound .................................................... - 24 - Leasing ............................................................ - 24 - Residential Use ..................................................... - 24 - Occupancy of Unfinished Units ......................................... - 24 - Vehicles ........................................................... - 24 - Animals and Pets .................................................... - 25 - Nuisance .......................................................... - 25- Storage of Materials, Trash, Garbage, Dumping, Etc ......................... - 26 - General Prohibitions .................................................. - 26 - Streams ........................................................... - 26 - The Lake .......................................................... - 26 - Drainage, Grading and Irrigation ........................................ - 26 - Greenbelts, Buffer Zones, and Nondisturbance Areas ....................... - 27 - Open Spaces, Green Spaces, Parks and Recreation Areas ................... - 27 - Sight Distance at Intersections .......................................... - 28 - Subdivision of Unit ................................................... - 28 - ARTICLE 11. 11.1. 11.2. 11.3. 11.4. 11.5. 11.6. 11.7. 11.8. 11.9. 11.11. 11.12. 11.13. EASEMENTS ........................................................ - 28 - Easements of Encroachment ........................................... - 28 - Easements for Utilities, Etc ............................................ - 28 - Easement for Erosion Control and Drainage Maintenance ..................... - 29 - Easements for Water Quality Facility, Drainage Easement Area Maintenance ..... - 29 - Easement for Greenbelt Maintenance .................................... - 30 - Easement for Park and Recreation Area Maintenance ....................... - 30 - Easement for Walking Trail and Cart Path Access .......................... - 31 - Easements to Serve Additional Property .................................. - 31 - Easement for Entry ................................................... - 31 - Easement for Lateral Support .......................................... - 32 - Easement for Special Events ........................................... - 32 - Liability for Use of Easements .......................................... - 32 - ARTICLE 12. 12.1. 12.2. 12.3. 12.4. 12.5. 12.6. MORTGAGEE PROVISIONS ............................................ - 32 - Notices of Action .................................................... - 32 - Special FHLMC Provision ............................................. - 33 - No Priority .......................................................... - 33 - Notice to Association ................................................. - 33 - Construction of Article 12 .............................................. - 33 - Failure of Mortgagee to Respond ........................................ - 33 - ARTICLE 13. 13.1. 13.2. 13.3. 13.4. 13.5. DECLARANT'S RIGHTS ................................................ - 34 - Transfer or Assignment ............................................... - 34 - Development and Sales ............................................... - 34 - Improvements to Common Area ........................................ - 34 - Additional Covenants ................................................. ~ 34 - Right of Class "B" Member to Disapprove Actions ........................... - 34 - M:'~RE D~0889~P e nins u~a',C C R-V3,wpd -iii- THE PENINSULA 13.6. Amendments 35 ARTICLE 14. 14.1. 14.2. 14.3. 14.4. 14.5. 14.6. 14.7. 14.8. 14.9. 14.10. 14.11. 14.12. GENERAL PROVISIONS ............................................... - 35 - Duration ........................................................... - 35 - Amendment ........................................................ - 35 - Severability ......................................................... - 36 - Non-Merger ........................................................ - 36 - Grants ............................................................. - 36 - Alternative Dispute Resolution .......................................... - 36 - Litigation ........................................................... - 37 - Cumulative Effect; Conflict ............................................. - 37 - Use of the Words "The Peninsula". ...................................... - 37 - Compliance ........................................................ - 37 - Notice of Sale or Transfer of Title ....................................... - 37 - Exhibits ............................................................ - 37 - - TABLE OF EXHIBITS - Exhibit A Subject Matter Land Initially Submitted Land Subject to Annexation By-Laws of The Peninsula Community Association, Inc. Exclusive Common Area Page First AI3Dearin(~ 1 1 00K 1 5 5,5 PA E 1 3 ? M:'~R ED~0889\Peninsula'~C C R -V3.wpd -iV- THE PENINSULA DECLARATION OF COVENANTS, CONDITIONS, AND RESTRICTIONS FOR THE PENINSULA THIS DECLARATION OF COVENANTS, CONDITIONS, AND RESTRICTIONS is made as of the date set forth on the signature page hereof by Peachtree City Holdings, L.L.C., a Georgia limited liability company (the "Declarant"). Declarant is the owner of the real property located in Fayette County and the City of Peachtree City, Georgia, as described on Exhibit A attached hereto and incorporated by reference. This Declaration imposes upon the Properties (as defined in Article 1 below) mutually beneficial restrictions under a general plan of improvement for the benefit of the owners of each portion of the Properties and establishes a flexible and reasonable procedure for the overall development, administration, maintenance and preservation of the Properties. In furtherance of such plan, this Declaration provides for the creation of The Peninsula Community Association, Inc., to be formed as a non-profit corporation to own, operate and maintain the Common Areas (as defined below) and to administer and enforce the provisions of this Declaration, the By-Laws, and the Design Guidelines (as these terms are defined below). Declarant hereby declares that all of the property described on Exhibit A and any Additional Property subjected to this Declaration by Supplemental Declaration shall be held, sold, used and conveyed subject to the following easements, restrictions, covenants, and conditions, which shall run with the title to the real property subjected to this Declaration. This Declaration shall be binding upon all parties having any right, title, or interest in any portion of the Properties, their heirs, successors, successors-in-title, and assigns, and shall inure to the benefit of each owner of any portion of the Properties. This document does not and is not intended, to create a condominium within the meaning of O.C.G.A. §44-3-70, et seq., nor a property owners' development within the meaning of O.C.G.A. §44-3-220, et seq. ARTICLE 1, DEFINITIONS The terms in this Declaration and the attached exhibits shall generally be given their natural, commonly accepted definitions except as otherwise specified. Capitalized terms shall be defined as set forth below. 1.1, "Additional Property": All of that certain real property which is more particularly described on Exhibit B, which is attached and incorporated herein by this reference, and which real property is subject to annexation to the terms of this Declaration in accordance with Article 7. 1.2. "ARB": The Architectural Review Board, as described in Article 9. 1.3. "Area of Common Responsibility": The Common Area, together with any additional areas for which the Association has or assumes responsibility pursuant to the terms of this Declaration, any Supplemental Declaration or other applicable covenant, contract or agreement. 1.4. "Articles of Incorporation" or "Articles": The Articles of Incorporation of The Peninsula Community Association, Inc., as filed with the Secretary of State of the State of Georgia, as they may be amended. 1.5. "Association": The Peninsula Community Association, Inc., a Georgia non-profit corporation, its successors or assigns. M:~RE D~08Bg~Peninsula~CC R-V3,wpd THE PENINSULA 1.6. "Board of Directors" or "Board": The body responsible for administration of the Association, selected as provided in the By-Laws and serving the same role as the board of directors under Georgia corporate law. 1.7. "Builder": Any Person who purchases one or more Units for the purpose of constructing improvements for later sale to consumers or who purchases one or more parcels of land within the Properties for further subdivision, development and/or resale in the ordinary course of such Person's business. Any Person occupying or leasing a Unit for residential purposes shall cease to be considered a Builder with respect to such Unit immediately upon occupancy of the Unit for residential purposes, notwithstanding that such Person originally purchased the Unit for the purpose of constructing improvements for later sale to consumers. 1.8. "By-Laws": The By-Laws of The Peninsula Community Association, Inc., attached as Exhibit C., as they may be amended from time to time. 1.9. "City": The City of Peachtree City, Georgia. 1.10. "Common Area": All real and personal property, including easements and licenses, which the Association owns, leases or otherwise holds possessory or use rights in for the common use and enjoyment of the Owners. This term shall include Exclusive Common Area, as defined below. 1.11. "Common Expenses": The actual and estimated expenses incurred, or anticipated to be incurred, by the Association for the general benefit of all Owners, including any reasonable reserve, as the Board may find necessary and appropriate pursuant to the Governing Documents. 1.12. "Community-Wide Standard": The standard of conduct, maintenance, or other activity generally prevailing throughout the Properties. Such standard shall initially be established by the Declarant and may be more specifically determined by the Board of Directors and the Architectural Review Board. 1.13. "County": Fayette County, Georgia. 1.14. "Covenant to Share Costs": Any agreement or contract or covenant between the Association and an owner or operator of property adjacent to the Properties for the allocation of expenses that benefit both the Association and the owner or operator of such property. 1.15. "Days": Unless specified otherwise, calendar days, provided that if the time period by which any action required hereunder must be performed expires on a Saturday, Sunday or legal holiday, then such period shall be extended to the close of business on the next regular business day. 1.16. "Declarant": Peachtree City Holdings, L.L.C., a Georgia limited liability company, or any successor, successor-in-title, or assign who takes title to any portion of the property described on Exhibit A or Exhibit B for the purpose of development and/or sale and who is designated as the Declarant in a recorded instrument executed by the immediately preceding Declarant; provided, however, that there shall be only one Person entitled to exercise the rights and powers of the "Declarant" hereunder at any one time. 1.17. "Desiqn Guidelines": The design, architectural and construction guidelines and application and review procedures applicable to the Properties promulgated and administered pursuant to Article 9. 1.18. "Development Period": The period of time during which the Declarant owns any property which is subject to this Declaration, or has the unilateral right to subject Additional Property to this Declaration pursuant to Section 7.1. The Declarant may, but shall not be obligated to, unilaterally relinquish its rights under this Declaration and terminate the Development Period by recording a written instrument in the Public Records. -2- BOOK 15 5 5 PASE 1 3 9 THE PENINSULA 1.19. "Effective Date": The date of recording of this Declaration in the Public Records. 1.20. "Exclusive Common Area": A portion of the Common Area intended for exclusive use or primary benefit of one (1) or more, but less than all Units, as more particularly described in Article 2. 1.21. "General Assessment": Assessments levied on all Units subject to assessment under Article 8 to fund Common Expenses for the general benefit of all Units, as more particularly described in Sections 8.1 and 8.3. 1.22. "Governinq Documents": The Declaration, By-Laws, Articles of Incorporation, all Supplemental Declarations, all Design Guidelines, the rules of the Association, any Covenants to Share Costs, or any of the above, as each may be supplemented and amended from time to time. 1.23. "Lake": Lake Kedron, being the body of water located adjacent to the Properties. 1.24. "Lake Use Restrictions": Use restrictions, rules and procedures for the Lake, promulgated by the City and County, or the State of Georgia. 1.25. "Maiority": Those votes, Owners, Members, or other group, as the context may indicate, totaling fifty-one percent (51%) or more of the total eligible number. 1.26. "Master Plan": The land use plan or development plan for"The Peninsula" as such plan may be amended from time to time, which includes the property described on Exhibit A. Inclusion of property on the Master Plan shall not, under any circumstances, obligate Declarant to subject such property to this Declaration, nor shall the exclusion of property described on .Exhibit B from the Master Plan bar its later annexation in accordance with Article 7. 1.27. "Member": A Person subject to membership in the Association pursuant to Article 3. 1.28. "Mortqaqe": A mortgage, a deed of trust, a deed to secure debt, or any other form of security instrument affecting title to any Unit. 1.29. "Mortgagee": A beneficiary or holder of a Mortgage. 1.30. "Owner": One (1) or more Persons, including the Declarant and any Builders, who hold the record title to any Unit, but excluding in all cases any party holding an interest merely as security for the performance of an obligation. If a Unit is sold under a recorded contract of sale, and the contract specifically so provides, the purchaser (rather than the fee owner) will be considered the Owner. If a Unit is owned by more than one (1) Person, all such Persons shall be jointly and severally obligated to perform the responsibilities of such Owner. 1.31. "Person": A natural person, a corporation, a partnership, a limited liability company, a fiduciary acting on behalf of another person, or any other legal entity. 1.32. "Properties": The real property described on Exhibit A, as such exhibit may be amended or supplemented from time to time to reflect any additions or removal of property in accordance with Article 7. 1.33. "Public Records": The Official Records of the Clerk of the Superior Court of the County, or such other place which is designated as the official location for recording of deeds and similar documents affecting title to real estate. 1.34. "Special Assessment": Assessments levied in accordance with Section 8.5. THE PENINSULA 1.35. "Specific Assessment": Assessments levied in accordance with Section 8.6. 1.36. "Supplemental Declaration": An instrument filed in the Public Records pursuant to Article 7 which subjects Additional Property to this Declaration and/or imposes, expressly or by reference, additional restrictions and obligations on the land described in such instrument. 1.37. "Unit": A portion of the Propedies, whether improved or unimproved, which may be independently owned and conveyed and which is intended for development, use, and occupancy as an attached or detached residence for a single family. The term shall refer to the land, if any, which is part of the Unit as well as any improvements thereon. The term shall include, by way of illustration but not limitation, townhouse units, cluster homes, patio or zero lot line homes, and single family detached houses on separately platted lots, as well as vacant land intended for development, but shall not include Common Area, or property dedicated to the public. 1.38. "Water Quality Facility": Areas designated by easement or appearing on a recorded plat and intended to control runoff and water quality for adjacent or nearby bodies of water. ARTICLE 2. PROPERTY RIGHTS 2.1. Common Area, Every Owner shall have a right and nonexclusive easement of use, access, and enjoyment in and to the Common Area, which is appurtenant to and shall pass with title to each Unit. Any Owner may extend his or her right of use and enjoyment to the members of his or her family, lessees, and social invitees, as applicable, subject to reasonable regulation by the Board. An Owner who leases his or her Unit shall be deemed to have assigned all such rights to the lessee of such Unit. The Owner's rights to the Common Area are subject to the following: (a) this Declaration and any other Governing Documents; (b) Association; any restrictions or limitations contained in any deed conveying such property to the (c) the right of the Board to adopt, amend, and repeal rules regulating the use and enjoyment of the Common Area, including rules limiting the number of guests who may use the Common Area; (d) the right of the Board to allow persons other than Owners, their families, lessees and guests to use any recreational or social facilities situated upon the Common Area upon payment of use fees established by the Board; (e) the right of the Association to rent, lease or reserve any portion of the Common Area to any Owner for the exclusive use of such Owner and his or her respective lessees, invitees, and guests upon such conditions as may be established by the Board; (f) the right of the Board to impose reasonable requirements and charge reasonable admission or other use fees for the use of any recreational facility situated on the Common Area; (g) the right of the Board and the Declarant to permit use of any facilities situated on the Common Area by persons other than Owners, their families, lessees, and guests upon payment of reasonable use fees, if any, established by the Board. (h) the right of the Board to suspend the right of an Owner to use recreational and social facilities within the Common Area pursuant to Section 4.4; M:'~RE D'~Ol!] 89,P enin, ula,C 6 R-V3 wpd -4- BOOK 15 5 5 14 2 THE PENINSULA (i) the right of the Association, acting through the Board, to dedicate or transfer all or any part of the Common Area subject to such approval requirements as may be set forth in this Declaration; (j) the right of the Association, acting through the Board, to mortgage, pledge, or hypothecate any or all of its real or personal property as security for money borrowed or debts incurred, subject to the approval requirements set forth in Section 2.8; (k) the right of the Declarant to conduct activities within the Common Area, such as tournaments, charitable events, and promotional events and to restrict Members from using the Common Area during such activities, provided such activities shall be conducted in a manner to minimize (to the extent reasonably possible) any substantial interference with the Members' use and enjoyment of the Common Area and shall not exceed seven (7) consecutive Days; and (I) the right of certain Owners to the exclusive use of portions of the Common Area designated as Exclusive Common Area pursuant to Section 2.2. 2.2. Exclusive Common Area. (a) Certain portions of the Common Area may be designated as Exclusive Common Area and reserved for the exclusive use or primary benefit of Owners and occupants of specified Units. By way of illustration and not limitation, Exclusive Common Areas may include entry features, private streets, landscaped medians and cul-de-sacs, shared garage access driveways, and other portions of the Common Area. All costs associated with maintenance, repair, replacement, and insurance of an Exclusive Common Area shall be assessed as a Specific Assessment against the Owners of Units to which the Exclusive Common Areas are assigned. (b) Exclusive Common Area shall be designated as such, and the exclusive use thereof shall be assigned, in the deed by which the Common Area is conveyed to the Association, this Declaration, a Supplemental Declaration and/or on the subdivision plat relating to such Common Area; provided however, any such assignment shall not preclude the Declarant from later assigning use of the same Exclusive Common Area to additional Units during the Development Period. After the Development Period, a portion of the Common Area may be assigned as Exclusive Common Area of particular Units and Exclusive Common Area may be reassigned upon written consent of the Owner, approval of the Board, and the Majority vote of the total Class "A" Members in the Association, including, if applicable, a Majority vote of the Class "A" Members to which the Exclusive Common Area is assigned, if previously assigned, and to which the Exclusive Common Area is to be assigned or reassigned. (c) The Association may, upon approval of a Majority vote of the Class "A" Members to which any Fxclusive Common Area is assigned, permit Owners of other Units to use all or a podion of such Exclusive Common Area upon payment of reasonable user fees, which fees shall be used to offset the Specific Assessments attributable to such Exclusive Common Area. (d) The 20-foot Access Easement at the rear of Lots 21 through and including Lot 34, as more particularly described on Exhibit D attached hereto and incorporated herein by this reference, is hereby assigned to the Units comprising Lots 21 through and including Lot 34 as Exclusive Common Area as a shared garage access driveway. All costs associated with maintenance, repair, replacement, and insurance of the shared garage access driveway shall be assessed as a Specific Assessment against the Owners of Units described as Lots 21 through 34 on Exhibit D.. 2.3. The Lake. If permitted by the City and County, access to and use of the Lake is strictly subject to the Lake Use Restrictions. Members of the public have no right of access to the Lake from the Properties. No Person other than the Owner of a Unit may gain access to the Lake through an Owner's Unit. Members of the Association may gain access to the Lake only through designated points of access through THE PENINSULA Common Area, and only if permitted under the Lake Use Restrictions. Each Owner of a Unit acknowledges and agrees to strictly abide by the Lake Use Restrictions. Any Person, including any Owner, using the Lake for any purpose shall assume the risk of such use. Under no circumstance shall the Declarant, the Association, any Builder, or any Person acting on their behalf assume any liability for use of the Lake by an Owner, its invitees, or licensees. 2.4. View Impairment. Neither the Declarant nor the Association guarantees or represents that any view over and across the Lake, the Common Area, or any public facilities from Units will be preserved without impairment. The Owners of Units adjacent to such areas shall have no obligation to prune or thin trees or other landscaping, and shall have the right to add trees and other landscaping to the Units from time to time, provided that such landscaping is installed in accordance with Article 9 herein and any applicable governmental laws, ordinances or regulations. 2.5. Erosion Control, Water Quality Facilities and Buffer Zones. The Properties are subject to the provisions of: ti) the Peachtree City Erosion Control Ordinance which requires non-disturbance buffers between the Properties and adjoining subdivisions, and restrictions on construction in impervious surface in the vicinity of lakes and other bodies of water, and (ii) if shown on a subdivision plat or under a separate declaration of easements affecting certain lots within the Properties, Water Quality Facilities and Drainage Easement Areas. Use of the Properties by the Owners shall be governed by the Peachtree City Erosion Control Ordinance and any easements govern water quality and erosion control recorded in the Public Records. 2.6. No Partition. Except as permitted in this Declaration, there shall be no judicial partition of the Common Area. No Person shall seek any judicial partition unless the portion of the Common Area which is the subject of such partition action has been removed from the provisions of this Declaration. Th is Article shall not prohibit the Board from acquiring and disposing of tangible personal property nor from acquiring and disposing of real property which may or may not be subject to this Declaration. 2.7. Condemnation. If any part of the Common Area shall be taken by any authority having the power of condemnation or eminent domain (or conveyed in lieu of and under threat of condemnation by the Board acting on the written direction of at least sixty-seven percent (67%) of the vote of the Class "A" Members in the Association and the written consent of the Declarant during the Development Period), each Owner shall be entitled to written notice of such taking or conveyance prior to disbursement of the condemnation award or proceeds of conveyance. Any resulting award or proceeds shall be payable to the Association to be disbursed according to this Section. If the taking or conveyance involves a portion of the Common Area on which improvements have been constructed, the Association shall restore or replace such improvements on the remaining land included in the Common Area to the extent available, unless within sixty (60) Days after such taking the Declarant, Members representing at least sixty-seven percent (67%) of the total Class "A" vote of the Association, and, during the Development Period, the Declarant, shall otherwise agree. Any such construction shall be in accordance with plans approved by the Board and the ARB. The provisions of Section 6. l(f) regarding funds for the repair of damage or destruction shall apply. If the taking or conveyance does not involve any improvements on the Common Area, or if a decision is made not to repair or restore, or if net funds remain after any such restoration or replacement is complete, then such award or net funds shall be disbursed to the Association and used for such purposes as the Board shall determine. 2.8. Actions Requirin¢:l Owner Approval. As long as there is a Class "B" membership, the conveyance or mortgaging of Common Area, except in accordance with Section 4.3, shall require the prior approval of Members representing at least two-thirds (2~3) of the total Class "A" votes in the Association. Notwithstanding anything to the contrary in this Article, the Association, acting through the Board, may grant easements over the Common Area for installation and maintenance of utilities, and drainage and Water Quality facilities and for other purposes not inconsistent with the intended use of the Common Area, without the approval of the membership. THE PENINSULA ARTICLE 3, MEMBERSHIP AND VOTING RIGHTS 3.1. Membership. Every Owner shall be a Member of the Association. There shall be only one (1) membership per Unit. If a Unit is owned by more than one (1) Person, all co-Owners shall share the privileges of membership, subject to reasonable Board regulation and the restrictions on voting set forth in Section 3.2 and in the By-Laws. All co-Owners shall be jointly and severally obligated to perform the responsibilities of Owners. The membership rights of an Owner which is not a natural person may be exercised by any officer, director, partner, member, authorized manager or fiduciary acting on behalf of the Owner, or by any individual designated from time to time by the Owner in a written instrument delivered to the secretary of the Association. 3.2. Votinq. The Association shall have two (2) classes of membership described in this Section as Class "A" and Class "B." la) Class '%". Class "A" Members shall be all Owners except the Class "B" Member, if any. Class "A" Members shall have one (1) equal vote for each Unit in which they hold the interest required for membership under Section 3.1; provided however, there shall be only one (1) vote per Unit and no vote shall be exercised for any property which is exempt from assessment under Section 8.10. Class "A" Members shall be entitled to vote on all matters as specifically set forth in the Governing Documents, provided that, except for matters specifically set forth in the Governing Documents, the rights and powers of the Association shall be exercised by the Board pursuant to Section 4.5. Notwithstanding the above, the Owner of two (2) contiguous Units, as shown on the final subdivision plat recorded in the Public Records, on which one (1) residential dwelling is constructed which crosses the boundary line separating Units, shall have only one (1) vote for such Units. lb) Class "B". The sole Class "B" Member shall be the Declarant. The rights of the Class "B" Member, including the right to approve, or withhold approval of, actions proposed under this Declaration, the By-Laws and the Articles, are specified in the relevant sections of this Declaration, the By-Laws and the Articles. The Class "B" Member may appoint a Majority of the members of the Board of Directors until the Class "B" membership terminates. The Class "B" membership shall continue until the first to occur of the following: (i) when eighty percent (80%) of the total number of Units permitted by the Master Plan for the property described on Exhibit A have certificates of occupancy issued thereon and have been conveyed to Persons other than Builders; (ii) December 31, 2008; or (iii) when, in its discretion, the Class "B" Member so determines. Upon termination of the Class "B" membership, the Declarant shall be a Class "A" Member entitled to Class "A" votes for each Unit which it owns. lc) Exercise of Votinq Rights. In any situation where a Member is entitled to exercise the vote for a Unit and there is more than one (1) Owner of the Unit, the vote for the Unit shall be exercised as the co-Owners determine among themselves and notify the secretary of the Association in writing prior to the vote being taken. Absent notice to the secretary, the Unit's vote shall be suspended if more than one (1) Person seeks to exercise it. M:~RED~088~Per~lnsula~CCR*V3.wpd ~ 7 - THE PENINSULA ARTICLE 4, RIGHTS AND OBLIGATIONS OF THE ASSOCIATION 4.1. Function of Association. The Association shall be the entity responsible for management, maintenance, operation and control of the Area of Common Responsibility and all improvements thereon. The Association shall be the primary entity responsible for enforcement of this Declaration and such reasonable rules regulating use of the Properties as the Board may adopt pursuant to Adicle 10. The Association shall also be responsible for administering and enforcing the architectural standards and controls set forth in this Declaration and in the Design Guidelines. The Association shall perform its functions in accordance with the Governing Documents and the laws of the State of Georgia. 4.2. Common Area. The Association, subject to the rights of the Owners set forth in this Declaration, shall manage and control the Common Area and all improvements thereon (including, without limitation, landscaping, recreational facilities, furnishings, equipment, and other personal property of the Association), and shall keep it in attractive condition and good repair, consistent with the Community-Wide Standard. The Board is specifically authorized, but not obligated, to retain or employ professional management to assist in carrying out the Association's responsibilities under this Declaration, the cost of which shall be a Common Expense. 4.3. Personal Property and Real Property for Common Use. The Association through the action of its Board, may acquire, hold, and dispose of tangible and intangible personal property and real property, subject to the provisions of Section 2.8. The Declarant and its designees may convey to the Association improved or unimproved real estate, or interests in real estate, located within the properties described in Exhibit A or Exhibit B, personal property and leasehold and other property interests. Such property shall be accepted by the Association and thereafter shall be maintained by the Association at its expense for the benefit of its Members, subject to any restrictions set forth in the deed or other instrument transferring such property to the Association. Declarant shall not be required to make any improvements or repairs whatsoever to property to be conveyed and accepted pursuant to this Section. Upon written request of Declarant, the Association shall reconvey to Declarant any unimproved portions of the Properties originally conveyed by Declarant to the Association for no consideration, to the extent conveyed by Declarant in error or needed by Declarant to make adjustments in property lines. 4.4. Enforcement. la) The Board or any committee established by the Board, with the Board's approval, may impose sanctions for violation of the Governing Documents after compliance with the notice and hearing procedures set forth in Section 3.25 of the By-Laws. Sanctions may include the actions enumerated below. (i) Imposition of reasonable monetary fines which shall constitute a lien upon the Unit of the violator. In the event that any occupant, guest or invitee of a Unit violates the Governing Documents and a fine is imposed, the fine shall first be assessed against the occupant; provided however, if the fine is not paid by the occupant within the time period set by the Board, the Owner shall pay the fine upon notice from the Board. (ii) Filing of notices of violations in the Public Records providing record notice of any violation of the Governing Documents. (iii) Suspension of an Owner's right to vote. (iv) Suspension of any Person's right to use any recreational facilities within the Common Area and the Exclusive Common Area; provided however, nothing herein shall authorize the Board to limit ingress or egress to or from a Unit. M:,RED,0889',Peninsula~,CCR*V3.wpd -8- [~0K 1 5 5 5 P~GE 1 4 5 THE PENINSULA (v) Suspension of any services provided by the Association to an Owner or the Owner's Unit if the Owner is more than thirty (30) Days delinquent in paying any assessment or other charge owed to the Association. (vi) The Board may levy Specific Assessments to cover costs incurred in bringing a Unit into compliance in accordance with Section 8.6(b) and 9.10. lb) In addition, the Board, or the covenants committee if established, may elect to enforce any provision of the Governing Documents by exercising self-help as more particularly described in Sections 8.7 and 9.10 (specifically including, but not limited to the filing of liens for non-payment of assessments and/or notices of violations in the Public Records, the towing of vehicles that are in violation of parking rules and the removal of pets that are in violation of pet rules, or the correction of any maintenance, construction or other violation of the Governing Documents) without the necessity of compliance with the procedures set forth in the By-Laws), or by suit at law or in equity to enjoin any violation and/or to recover monetary damages. The Association may levy a Specific Assessment to cover all costs incurred in bringing a Unit into compliance with the terms of the Governing Documents. Entry onto a Unit under this Section shall not be deemed a trespass. (c) All remedies set forth in this Declaration and the By-Laws shall be cumulative of any remedies available at law or in equity. In any action taken or remedy exercised to enforce the provisions of the Governing Documents, if the Association prevails, it shall be entitled to recover all costs, including, without limitation, reasonable attorneys fees and court costs, reasonably incurred in such action. (d) The Association shall not be obligated to take action to enforce any covenant, restriction, or rule which the Board in the exercise of its business judgment determines is, or is likely to be construed as, inconsistent with applicable law, or in any case in which the Board reasonably determines that the Association's position is not strong enough to justify taking enforcement action. Any such determination shall not be construed a waiver of the right of the Association to enforce such provision under any circumstances or estop the Association from enforcing any other covenant, restriction or rule. (e) The Association, by contract or other agreement, may enforce County, City, State or Federal ordinances, laws, or rules if applicable, and permit local governments to enforce ordinances on the Properties for the benefit of the Association and its Members. (f) In the event that any occupant, guest or invitee of a Unit violates the Governing Documents, the Board or any committee established by the Board, with the Board's approval, may sanction such occupant, guest or invitee and/or the Owner of the Unit that the violator is occupying or visiting. 4.5. Implied Riqhtsi Board Authority. The Association may exercise any right or privilege given to it expressly by this Declaration or the By-Laws, or reasonably implied from or reasonably necessary to effectuate any such right or privilege. Except as otherwise specifically provided in this Declaration, the By-Laws, the Articles, or by law, all rights and powers of the Association may be exercised by the Board without a vote of the membership. 4.6. Governmental Interests. During the Development Period, the Declarant may designate sites within the Properties for fire, police, utility facilities, public schools, parks, streets, or other public or q uasi-public facilities. The sites may include Common Area, in which case the Association shall take whatever action is required with respect to such site to permit such use, including conveyance of the site, if so directed by Declarant. The sites may include other property not owned by Declarant provided the owner of such property consents. No membership approval shall be required for designation of property under this Section. 4.7. Indemnification. The Association shall indemnify every officer, director, and ARB or committee member, against all damages, liabilities and expenses, including reasonable attorneys' fees, reasonably incurred in connection with any action, suit, or other proceeding (including settlement of any suit M:tREOtO889~Peninsula'~CCR*V3 wpd - 9 - THE PENINSULA or proceeding, if approved by the then Board of Directors) to which he or she may be a party by reason of being or having been an officer, director, or ARB or committee member, except that such obligation to indemnify shall be limited to those actions for which liability is limited under this Section, the Articles of Incorporation and Georgia law. The officers, directors, and ARB or committee members shall not be liable for any mistake of judgment, negligent or otherwise, except for their own individual willful misfeasance, malfeasance, misconduct, or bad faith. The officers, directors, and ARB or committee members shall have no personal liability with respect to any contract or other commitment made or action taken in good faith on behalf of the Association (except to the extent that such officers, directors, and ARB and committee members may also be Members of the Association). The Association shall indemnify and forever hold each officer, director and ARB or committee member harmless from any and all liability to others on account of any such contract, commitment or action. This right to indemnification shall not be exclusive of any other rights to which any present or former officer, director, or ARB or committee member may be entitled. The Association shall, as a Common Expense, maintain adequate general liability and officers' and directors' liability insurance to fund this obligation, if such insurance is reasonably available. 4.8. Dedication of or Grant of Easements on Common Area The Association may dedicate or grant easements across portions of the Common Area to the City, to the County, or to any other local, state, or federal governmental or quasi-governmental entity. 4.9. The Lake. Neither the Association, the original Declarant, nor any successor Declarant shall be held liable for any loss or damage by reason of use of the Lake for any purpose by Owners, their invitees, licensees, and tenants. Each Owner acknowledges, understands and covenants to inform its tenants and all occupants of its Unit that the Association, its Board of Directors, ARB and committees, Declarant, and any successor Declarant are not insurers and that each Person using the Lake shall do so only as permitted under the Lake Use Restrictions, and applicable governmental laws, ordinances, rules and regulations. Each Person assumes all risks of personal injury, and loss or damage to property, including Units, resulting from or associated with use of the Lake. ARTICLE 5. MAINTENANCE 5.1. Association's Responsibility. (a) The Association shall maintain and keep in good condition, order and repair the Area of Common Responsibility, which may include, but need not be limited to: (i) Common Area, Exclusive Common Area and the facilities located therein; (ii) all landscaping and other flora, tennis courts, recreational and open areas, parks, lakes, ponds, structures, improvements, parking lots, bike and pedestrian pathways, walking trails and paths, situated upon the Common Area; (iii) all entry features, paths, private streets and garage access drives, whether located upon the Common Area or any Unit; (iv) all furnishings, equipment and other personal property of the Association; (v) any landscaping and other flora, parks, pathways, walking trails, cart paths, sidewalks, greenbelts, structures and improvements or buffer zones within public rights-of-way within or abutting the Properties or upon such other public land adjacent to the Properties as deemed necessary in the discretion of the Board; THE PENINSULA (vi) such portions of any Additional Property included within the Area of Common Responsibility as may be dictated by the Governing Documents, any declaration of easements by Declarant, or any contract or agreement for maintenance thereof entered into by the Association; and (vii) all streams, and/or wetlands located within the Properties which serve as part of the drainage and storm water retention system for the Properties. (b) The Association shall have no obligation to maintain any portion of the Properties or adjacent areas such as drainage features, Water Quality Facilities, utility easement areas, greenbelts, cart paths, parks or sidewalks which are maintained by the City, the County, or any other governmental or quasi-governmental agency. (c) The Association may, as a Common Expense, maintain other property or improvements which it does not own, including, without limitation, property dedicated to the public such as greenbelts, buffer zones and cart paths, or provide maintenance or services related to such property over and above the level being provided by the property owner, if the Board of Directors determines that such maintenance is necessary or desirable to maintain the Community-Wide Standard. (d) The Association shall maintain the facilities and equipment within the Area of Common Responsibility in continuous operation, except for any periods necessary as determined in the sole discretion of the Board to temporarily cease performance of required maintenance or repairs, unless Members holding sixty-seven percent (67%) of the Class"A" votes in the Association and the Declarant, during the Development Period, agree in writing to discontinue such operation. (e) The Association may be relieved of all or any portion of its maintenance responsibilities herein to the extent that (i) such maintenance responsibility is otherwise assumed by or assigned to an Owner or a Neighborhood Association or (ii) such property is dedicated to any local, state, or federal government or quasi-governmental entity; provided however, that in connection with such assumption, assignment or dedication, the Association may reserve or assume the right or obligation to continue to perform all or any portion of its maintenance responsibilities, if the Board determines that such maintenance is necessary or desirable to maintain the Community-Wide Standard. (f) Except as provided herein, the Area of Common Responsibility shall not be reduced by amendment of this Declaration or any other means during the Development Period, except with the written consent of Declarant. (g) Except as otherwise specifically provided herein, all costs associated with maintenance, repair and replacement of the Area of Common Responsibility shall be a Common Expense to be allocated among all Units as part of the General Assessment, without prejudice to the right of the Association to seek reimbursement from the owner(s) of, or other Persons responsible for, certain portions of the Area of Common Responsibility pursuant to the Governing Documents, or other recorded covenants, or agreements with the owner(s) thereof. All costs associated with the maintenance, repair and replacement of Exclusive Common Area shall be a Specific Assessment against the Units to which the Exclusive Common Areas are assigned, notwithstanding that the Association is responsible for maintenance thereof. 5.2. Owner's Responsibility. Each Owner shall maintain his or her Unit and all structures, parking areas, sprinklers and irrigation systems, landscaping and other improvements comprising the Unit in a manner consistent with the Community-Wide Standard and the Governing Documents, unless such maintenance responsibility is otherwise assumed by or assigned to the Association, the City or the County. In addition to any other enforcement rights, if an Owner fails to perform properly his or her maintenance responsibilities, the Association may perform such maintenance responsibilities and assess all costs incurred by the Association against the Unit and the Owner as a Specific Assessment in accordance with Section 8.6. The M:~RED~889~Peninsula~CCR-V3.wpd - 1 1 - THE PENINSULA Association shall afford the Owner reasonable notice and an opportunity to cure the problem prior to entry, except when entry is required due to an emergency situation. 5.3. Standard of Performance. All maintenance shall be performed in a manner consistent with the Community-Wide Standard and the Governing Documents. Maintenance shall include the responsibility for repair and replacement as necessary. Neither the Association nor an Owner shall not be liable for any damage or injury occurring on, or arising out of the condition of, property which it does not own except to the extent that it has been negligent in the performance of its maintenance responsibilities. 5.4. Covenant to Share Costs. Adjacent to or in the vicinity of the Properties, there may be certain residential or nonresidential areas, or recreational areas, including without limitation single family residential developments and retail, commercial, or business areas, which are not subject to this Declaration and which are neither Units nor Common Area as defined in this Declaration (hereinafter "Adjacent Properties"). The owners of the Adjacent Properties shall not be Members of the Association and shall not be entitled to vote, nor shall they be subject to assessment under Article 8 of this Declaration. The Association may enter into agreements with the owners or operators of portions of the Adjacent Properties which obligate the owners or operators of the Adjacent Properties to share in certain costs associated with the maintenance, repair, replacement and insuring of portions of the Area of Common Responsibility, if any, which are used by or benefit jointly the owners of the Adjacent Properties and the Owners within the Properties, which permit use of any recreational and other facilities located on the Adjacent Properties by the Owners within the Properties, and/or which obligate the Association to share in certain costs associated with the maintenance, repair, replacement and insuring of portions of the Adjacent Properties, if any, which are used by or benefit jointly the owners of the Adjacent Properties and the Owners within the Properties. The owners of the Adjacent Properties shall be subject to assessment by the Association in accordance with the provisions of such agreement(s). The owners of the Adjacent Properties shall not be subject to the restrictions contained in this Declaration except as otherwise specifically provided herein, or in a Covenant to Share Costs or declaration of easements. ARTICLE 6. INSURANCE AND CASUALTY LOSSES 6.1. Association Insurance. The Association agrees to carry and maintain insurance as set forth below. (a) Required Coverages. The Association, acting through its Board or its duly authorized agent, shall obtain and continue in effect the following types of insurance, if reasonably available, or if not reasonably available, the most nearly equivalent coverages as are reasonably available: (i) blanket property insurance covering "all risks" on a "special form" basis (or comparable coverage by whatever name denominated) for all insurable improvements on the Common Area, if any, and on other portions of the Area of Common Responsibility to the extent that it has assumed responsibility for maintenance, repair and/or replacement in the event of a casualty. If such coverage is not generally available at reasonable cost, then "broad form" coverage may be substituted. The Association shall have the authority to and interest in insuring any property for which it has maintenance or repair responsibility, regardless of ownership. All property insurance policies obtained by the Association shall have policy limits sufficient to cover the full replacement cost of the insured improvements; (ii) commercial general liability insurance all public ways located within the Properties and on the Area of Common Responsibility, insuring the Association and its Members for damage or injury caused by the negligence of the Association or any of its Members, employees, agents, or contractors while acting on its behalf. If generally available at reasonable cost, the commercial general liability coverage (including primary and any umbrella coverage) shall have a limit of at least one million dollars ($1,000,000) M:~RED~0889~Peninsula~,CC R -V3.wpd -12- THE PENINSULA per occurrence with respect to bodily injury, personal injury, and property damage, provided should additional coverage and higher limits be available at reasonable cost which a reasonably prudent person would obtain, the Association shall obtain such additional coverages or limits; (iii) workers compensation insurance and employers liability insurance, if and to the extent required by law; (iv) directors and officers liability coverage; (v) fidelity insurance covering all Persons responsible for handling Association funds in an amount determined in the Board's best business judgment but not less than an amount equal to one-sixth (1/6) of the annual General Assessments on all Units plus reserves on hand. Fidelity insurance policies shall contain a waiver of all defenses based upon the exclusion of Persons serving without compensation; and (vi) "blanket" policy of flood insurance on the Common Area must be maintained in the amount of one hundred percent (100%) of current "replacement cost" of all effected improvements and other insurance property or the maximum limit of coverage available, whichever is less to the extent that any portion of the Common Area is or shall become located in an area identified by the Federal Emergency Management Agency ("FEMA") as an area having special flood hazards. (b) Additional Coveraqes. The Board may obtain such additional insurance as the Board, in its best business judgment, determines advisable, which may include without limitation, flood insurance, boiler and machinery insurance, and building ordinance coverage. (c) Premiums. Premiums for alt insurance on the Area of Common Responsibility shall be Common Expenses and shall be included in the General Assessment, except that premiums for insurance on Exclusive Common Areas may be assessed as SpecificAssessments against the benefitted Units, unless the Board of Directors reasonably determines that other treatment of the premiums is more appropriate. In the event of an insured loss, the deductible shall be treated as a Common Expense and assessed in the same manner as the premiums for the applicable insurance coverage. However, if the Board reasonably determines, after notice and an opportunity to be heard in accordance with the By-Laws, that the loss is the result of the negligence or willful misconduct of one or more Owners, their guests, invitees, or lessees, then the Board may specifically assess the full amount of such deductible against such Owner(s) and their Units ~ursuant to Section 8.6. (d) Policy Requirements. The Association shall arrange for periodic review of the sufficiency of ~nsurance coverage by one or more qualified Persons, at least one of whom must be familiar with insurable replacement costs in the metropolitan Atlanta area. All Association policies shall provide for a certificate of insurance to be furnished to the Association, and to each Member upon the Member's written request. 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 policy limits satisfy the requirements of Section 6.1(a). However, if the Board reasonably determines, after notice and an opportunity to be heard in accordance with the By-Laws, that the loss is the result of the negligence or willful misconduct of one or more Owners, their guests, invitees, or lessees, then the Board may specifically assess the full amount of such deductible against such Owner(s) and their Units pursuant to Section 8.6. All insurance coverage obtained by the Board shall: (i) be written with a company authorized to do business in the State of Georgia which satisfies the requirements of the Federal National Mortgage Association, or such other secondary mortgage market agencies or federal agencies as the Board deems appropriate; (ii) be written in the name of the Association as trustee for the benefitted parties. Policies on the Common Areas shall be for the benefit of the Association and its Members; M:'~RED~0889\Peninsula\CCR~V3.wpd - 13 - THE PENINSULA (iii) not be brought into contribution with insurance purchased by Owners, occupants, or their Mortgagees individually; (iv) contain an inflation guard endorsement; and (v) include an agreed amount endorsement, if the policy contains a co-insurance clause. (e) Additional Policy Considerations. In addition to the policy requirements, the Board shall use reasonable efforts to secure insurance policies which list the Owners as additional insureds and provide: (i) a waiver of subrogation as to any claims against the Association's Board, officers, employees, and its manager, the Owners and their tenants, servants, agents, and guests; (ii) a waiver of the insurer's rights to repair and reconstruct instead of paying cash; (iii) an endorsement precluding cancellation, invalidation, suspension, or non-renewal by the insurer on account of any one or more individual Owners, or on account of any curable defect or violation without prior written demand to the Association to cure the defect or violation and allowance of a reasonable time to cure; (iv) an endorsement excluding Owners' individual policies from consideration under any "other insurance" clause; (v) an endorsement requiring at least thirty (30) Days' prior written notice to the Association of any cancellation, substantial modification, or non-renewal; (vi) a cross-liability provision; and (vii) a provision vesting in the Board exclusive authority to adjust losses; provided however, no Mortgagee having an interest in such losses may be prohibited from participating in the settlement negotiations, if any, related to the loss. (f) Damaqe and Destruction. In the event of any insured loss, only the Board or its duly authorized agent may file and adjust afl insurance claims and obtain reliable and detailed estimates of the cost of repair or reconstruction. Repair or reconstruction, as used in this paragraph, means repairing or restoring the property to substantially the condition in which it existed prior to the damage, allowing for changes or improvements necessitated by changes in applicable building codes. Any damage to or destruction of the Common Area shall be repaired or reconstructed unless the Members holding at least sixty-seven percent (67%) of the total Class "A" votes in the Association, and during the Development Period, the Declarant, decide within sixty (60) Days after the loss not to repair or reconstruct. If either the insurance proceeds or reliable and detailed estimates of the cost of repair or reconstruction, or both, are not available to the Association within such sixty (60) Day period, then the period shall be extended until such funds or information are available. However, such extension shall not exceed sixty (60) additional Days. No Mortgagee shall have the right to participate in the determination of whether the damage or destruction to the Common Area shall be repaired or reconstructed. If determined in the manner described above that the damage or destruction to the Common Area shall not be repaired or reconstructed and no alternative improvements are authorized, the affected property shall be cleared of all debris and ruins and thereafter shall be maintained by the Association in a neat and attractive, landscaped condition consistent with the Community-Wide Standard. Any insurance proceeds remaining after paying the costs of repair or reconstruction, or after such settlement as is necessary and appropriate, shall be retained by and for the benefit of the Association and placed in a capital improvements account. This is a covenant for the benefit of Mortgagees and may be enforced by the Mortgagee of any affected Unit. If insurance proceeds are insufficient to cover the costs of repair or M:~lFD~0889'~Peni~lsula'~OCR*V3.wpd -14- BOOK 15 5 5 PA0[ 5 :l BOOK THE PENINSULA reconstruction, the Board of Directors may levy Special Assessments without a vote of the Members to cover the shortfall against those Owners responsible for the premiums for the applicable insurance coverage under Section 6.1 (a). 6.2. Owners' Insurance. By virtue of taking title to a Unit, each Owner covenants and agrees with all other Owners and with the Association to carry property insurance for the full replacement cost of all insurable improvements on his or her Unit, less a reasonable deductible. Each Owner further covenants and agrees that in the event of damage to or destruction of structures on his Unit, the Owner shall proceed promptly to repair or to reconstruct in a manner consistent with the original construction or such other plans and specifications as are approved in accordance with Article 9. Alternatively, the Owner shall clear the Unit of all debris and ruins and maintain the Unit in a neat and attractive, landscaped condition consistent with the Community-Wide Standard. The Owner shall pay any costs which are not covered by insurance proceeds. ARTICLE 7. ANNEXATION AND WITHDRAWAL OF PROPERTY 7.1. Annexation by Declarant. Through December 31, 2010, Declarant may from time to time unilaterally subject to the provisions of this Declaration all or any portion of the real property described in Exhibit B. The Declarant may transfer or assign this right to annex property, provided that the transferee or assignee is the developer of at least a portion of the real property described in Exhibit A or Exhibit B and that such transfer is memorialized in a written, recorded instrument executed by Declarant. Annexation shall be accomplished by filing a Supplemental Declaration in the Public Records describing the property being annexed. The Supplemental Declaration shall not require the consent of Members, but shall require the consent of the owner of the property being annexed, if other than Declarant. Annexation shall be effective upon the filing for record of the Supplemental Declaration unless otherwise provided therein. Nothing in this Declaration shall be construed to require the Declarant or any successor to annex or develop any of the property set forth in Exhibit B in any manner whatsoever. 7.2. Annexation by Membership. The Association may annex any other real property to the provisions of this Declaration with the consent of the owner of the property, the affirmative vote of Members holding a Majority of the Class "A" votes of the Association represented at a meeting duly called for such purpose, and, during the Development Period, the written consent of the Declarant. Annexation shall be accomplished by filing a Supplemental Declaration describing the property being annexed in the Public Records. Any Supplemental Declaration under this Subsection shall be signed by the president and the secretary of the Association, and by the owner of the annexed property, and by the Declarant, if the Declarant's consent is required. Annexation shall be effective upon filing the Supplemental Declaration unless otherwise provided therein. 7.3. Withdrawal of Property. The Declarant reserves the right to amend this Declaration during the Development Period so long as it has a right to annex Additional Property pursuant to Section 7.1, for the purpose of removing any portion of the Properties from the coverage of this Declaration, provided such withdrawal is not contrary to the overall, uniform scheme of development for the Properties. Such amendment shall not require the consent of any Person other than the Owner of the property to be withdrawn, if not the Declarant. If the property is Common Area, the Association shall consent to such withdrawal. 7.4. Amendment. This Article shall not be amended during the Development Period without the prior written consent of Declarant. M:tREDt0889~Peninsula~CCR-V3.wpd - 1 5 ~ THE PENINSULA ARTICLE8. ASSESSMENTS 8.1. Creation of and Obliqation for Assessments. (a) There are hereby created assessments for the Common Expenses of the Association as the Board may authorize from time to time. There shall be three (3) types of assessments: (i) General Assessments as described herein and in Section 8.3 to fund Common Expenses for the general benefit of all Units; (ii) Special Assessments as described in Section 8.5; and (iii) Specific Assessments as described in Section 8.6. Each Owner, by accepting a deed or entering into a recorded contract of sale for any portion of the Properties, is deemed to have notice of liability for these assessments and to covenant and agree to pay these assessments. (b) All assessments, together with interest not to exceed the maximum rate allowable by law, late charges, costs of collection, and reasonable attorneys' fees, shall be a charge and continuing lien upon each Unit against which the assessment is made until paid, as more particularly provided in Section 8.7. Each assessment, together with interest not to exceed the maximum rate allowable by law, late charges, costs of collection, and reasonable attorneys' fees, also shall be the personal obligation of the Person who was the Owner of the Unit at the time the assessment arose. Upon a transfer of title to a Unit, the grantee shall be jointly and severally liable for any assessments and other charges due at the time of conveyance. However, no first Mortgagee who obtains title to a Unit by exercising the remedies provided in its Mortgage shall be liable for unpaid assessments which accrued prior to acquisition of title by the Mortgagee. The Association shall, upon request, furnish to any Owner liable for any type of assessment a written statement signed by an Association officer setting forth whether the assessment has been paid. The statement shall be conclusive evidence of payment. The Association may require the advance payment of a reasonable processing fee for the issuance of a statement. Assessments shall be paid in the manner and on the dates as the Board may establish, which may include discounts for early payment or similar time and price differentials. Unless the Board otherwise provides, the General Assessment shall be due and payable in advance on the first (1 st) day of each fiscal year. The Board may require advance payment of assessments at closing of the transfer of title to a Unit and impose special requirements for Owners with a history of delinquent payment. If the Board so elects, assessments may be paid in two (2) or more installments. If any Owner is delinquent in paying any assessments or other charges levied on his Unit, the Board may require any unpaid installments of all outstanding assessments to be paid in full immediately. Any assessment or installment thereof shall be considered delinquent on the fifteenth (15th) Day following the due date unless otherwise specified by Board resolution. No Owner is exempt from liability for assessments by non-use of Common Area (including Exclusive Common Area reserved for such Owners use), abandonment of his Unit, or any other means. The obligation to pay assessments is a separate and independent covenant on the part of each Owner which runs with title to the Unit. No diminution or abatement of assessments or set-off shall be claimed or allowed for any alleged failure of the Association or Board to take some action or perform some function required of it, or for inconvenience or discomfort arising from the making of repairs or improvements, or from any other action it takes. The Association is specifically authorized to enter into subsidy contracts or contracts for "in kind" contribution of services, materials, or a combination of services and materials with the Declarant or other entities for payment of Common Expenses. 8.2. Declarant's Obliqation for Assessments. While the Class "B" membership is in effect, Declarant may annually elect either to pay an amount equal to assessments on its unsold Units, or to pay the difference between the amount of assessments levied on all other Units subject to assessment and the amount of actual expenditures by the Association during the fiscal year. Unless the Declarant otherwise notifies the Board in writing prior to the beginning of each fiscal year, the Declarant shall be deemed to have elected to continue paying on the same basis as during the immediately preceding fiscal year. The Declarant's obligations hereunder may be satisfied in the form of cash or by "in kind" contributions of services or materials, or by a combination of these. While the Class "B" Membership is in effect, Common Expenses shall not include any expenses incurred for initial development, original construction, installation of THE PENINSULA infrastructure, original capital improvements, or other original construction costs unless approved by Members representing a Majority of the total Class "A" votes of the Association. 8.3. Computation of General Assessments. At least thirty (30) Days before the beginning of each fiscal year, the Board shall prepare a budget covering the estimated Common Expenses during the coming year including a capital contribution as set forth in Section 8.11 and a reserve fund in accordance with a budget separately prepared as provided in Section 8.4. General Assessments shall be levied equally on all Units subject to assessment pursuant to Section 8.7. The assessment rate shall be set at a level which is reasonably expected to produce total income for the Association equal to the total budgeted Common Expenses, including reserves. In determining the level of General Assessments, the Board, in its discretion, may consider other sources of funds available to the Association, including any surplus from prior years and any assessment income expected to be generated from any additional Units reasonably anticipated to become subject to assessment during the fiscal year. The Board shall send a copy of the budget and notice of the amount of the General Assessment for the upcoming year to each Owner at least thirty (30) Days prior to the beginning of the fiscal year for which it is to be effective. The budget and assessment shall become effective unless disapproved by Members holding at least sixty-seven percent (67%) of the total Class "A" votes in the Association and by the Class "B" Member, if any. If a budget is not adopted for any year, or if the Association fails to deliver an assessment notice, then until such time as a budget is adopted, the budget in effect for the immediately preceding year shall continue for the current year and each Owner shall continue to pay General Assessments on the same basis as during the last year. Once a new budget is adopted and assessments levied, the Association may retroactively assess any shortfalls in collections. If the budget proves inadequate for any reason, the Board may prepare a revised budget for the remainder of the fiscal year. The revised budget shall become effective unless disapproved at a meeting by Members in the same manner as prescribed for the initial budget. The Board shall have no obligation to call a meeting for the purpose of considering the budget or any revised budget except on petition of the Members as required for special meetings in the By-Laws. The petition must be presented to the Board within ten (10) Days after delivery of the notice of assessments. While the Class "B" Membership is in effect the Declarant may, but shall not be obligated to, reduce the General Assessment for any fiscal year by payment of a subsidy and/or contributions of services and materials (in addition to any amounts paid by Declarant under Section 8.2), which may be treated as either a contribution or an advance against future assessments due frorn the Declarant, or a loan, in the Declarant's discretion. Any anticipated subsidy, payment or contribution by the Declarant shall be disclosed as a line item in the Common Expense budget. Payments by the Declarant in any year shall under .no circumstances obligate the Declarant to continue such payments in future years, unless otherwise provided ~n a written agreement between the Association and the Declarant. The Association is specifically authorized to enter into subsidy contracts or contracts for "in kind" contribution of services, materials, or a combination of services and materials with the Declarant or other entities for payment of Common Expenses. 8.4. Reserve Bud,qet. The Board may, in its sole discretion, annually prepare a reserve budget which takes into account the number and nature of replaceable assets within the Area of Common Responsibility, the expected life of each asset, and the expected repair or replacement cost. The Board shall include in the general budget reserve amounts sufficient to meet the projected needs of the Association. 8.5. Special Assessments. In addition to other authorized assessments, the Association may levy Special Assessments from time to time to cover unbudgeted expenses or expenses in excess of those budgeted. So long as the total amount of Special Assessments allocable to a Unit does not exceed fifty percent (50%) of the General Assessment levied against a Unit for that fiscal year, the Board may impose the Special Assessment. Except as provided in Section 6.1 (f) hereof, any Special Assessment which would cause the amount of Special Assessments allocable to any Unit to exceed this limitation shall require the approval of Members holding at least sixty-seven percent (67%) of the total Class "A" votes in the Association, and, while the Class "B" Membership is in effect, the written consent of the Declarant. Special Assessments shall be payable in such manner and at such times as determined by the Board, and may be payable in installments THE PENINSULA extending beyond the fiscal year in which the Special Assessment is approved. Special Assessments shall be levied equally on all Units. 8.6. Specific Assessments. (a) The Association shall have the power to levy Specific Assessments against a particular Unit or Units to cover the costs, including overhead and administrative costs, of providing benefits, items, or services to the Unit(s) or occupants thereof upon request of the Owner pursuant to a menu of special services which the Board may from time to time authorize (which may include, without limitation, garbage collection, landscape maintenance, janitorial service, pest control, etc.). This type of Special Assessment may be levied in advance of the provision of the requested benefit, item or service as a deposit against charges to be incurred by the Owner. (b) The Association shall have the power to levy Specific Assessments against a particular Unit or Units to cover costs incurred in bringing the Unit(s) into compliance with the terms of the Governing Documents, or costs incurred as a consequence of the conduct of the Owner or occupants of the Unit, their agents, contractors, employees, licensees, invitees, or guests. The Board shall give the Unit Owner prior written notice and an opportunity for a hearing, in accordance with the By-Laws before levying a Specific Assessment under this subsection. (c) The Association shall have the power to levy Specific Assessments against a particular Unit or Units to cover the costs of maintaining, repairing, replacing and insuring any Exclusive Common Area assigned to the Units. 8.7. Lien for Assessments. The Association shall have a lien against each Unit to secure payment of assessments, interest on delinquencies at a rate set by the Board (subject to the maximum interest rate limitations under Georgia law), late charges, (subject to limitations under Georgia law), and costs of collection (including reasonable attorneys' fees). The lien shall be superior to all other liens, except (a) the liens of all taxes, bonds, assessments, and other levies which by law would be superior, and (b) the lien or charge of any recorded Mortgage with first priority over other Modgages made in good faith and for value. The lien may be enforced by suit, judgment, and nonjudicial or judicial foreclosure, as permitted under Georgia law. The Declarant or the Association may bid for the Unit at the foreclosure sale and acquire, hold, lease, mortgage, and convey the Unit. VVhile a Unit is owned by the Association following foreclosure: (i) no right to vote shall be exercised on its behalf; (ii) no assessment shall be levied on it; and (iii) the other Units within the Properties shall be charged, in addition to the usual assessment, a pro rata share of the assessment allocated to the Unit owned by the Association. The Association may sue for unpaid assessments and other charges authorized hereunder without foreclosing or waiving the lien securing the same. The sale or transfer of any Unit shall not affect the assessment lien or relieve a Unit from the lien for any subsequent assessments. However, the sale or transfer of any Unit pursuant to foreclosure of the first Priority Mortgage shall extinguish the lien as to any installments of assessments due prior to foreclosure. A Mortgagee or other purchaser of a Unit who obtains title pursuant to foreclosure of the Mortgage shall not be personally liable for assessments on the Unit due prior to foreclosure. Such unpaid assessments shall be deemed to be Common Expenses collectible from Owners of all Units subject to assessment, including such acquirer, its successors and assigns. All other Persons acquiring liens or encumbrances on any Unit after this Declaration has been recorded shall be deemed to consent that such liens or encumbrances shall be inferior to future liens for assessments, as provided herein, whether or not prior consent is specifically set forth in the instruments creating such liens or encumbrances. 8.8. Date of Commencement of Assessments. The obligation to pay assessments shall commence as to each Unit on the date which the Unit is conveyed to or occupied for residential purposes by a Person other than a Builder or Declarant. The first annual General Assessment levied on each Unit shall be paid, as applicable (a) at the closing of the sale to a Person other than a Builder or Declarant, or (b) M:~ED~0889~Peninsula\CCR-V3 wpd -18- OOK 15 5 5 P GE 15 6 THE PENINSULA immediately upon demand by the Association based on the date of occupancy of the Unit for residential purposes. Notwithstanding the foregoing, a Builder holding any Unit for one (1) year after purchase shall be obligated to pay the full annual assessment for such Unit, commencing with the first day of the month after the first anniversary of the Builder's purchase of the Unit. The first annual General Assessment shall be adjusted according to the number of months remaining in the fiscal year at the time assessments commence on the Unit. 8.9. Failure to Assess. Failure of the Board to establish assessment amounts or rates or to deliver or mail each Owner an assessment notice shall not be deemed a waiver, modification, or a release of any Owner from the obligation to pay assessments. In such event, each Owner shall continue to pay General Assessments on the same basis as during the last year for which an assessment was made, if any, until a new assessment is levied, at which time the Association may retroactively assess any shortfalls in collections. 8.10. Exempt Property. The following property shall be exempt from payment of General and Special Assessments: (a) All Common Area and such portions of the property owned by the Declarant as are included in the Area of Common Responsibility pursuant to Section 5.1; and (b) Any property dedicated or otherwise conveyed to and accepted by any governmental authority, quasi-governmental authority, or public utility. 8.11. Capitalization of Association. Upon acquisition of record title to a Unit by the first Owner thereof other than the Declarant or a Builder, or upon occupancy of a Unit by a Person other than a Builder or Declarant, a contribution shall be made by or on behalf of the purchaser or Person occupying the Unit to the working capital of the Association in an amount equal to the greater of: (a) one-sixth, (1/6) of the annual General Assessment per Unit for that year, or (b) one hundred fifty dollars ($150). This amount shall be in addition to, not in lieu of, the annual General Assessment and shall not be considered an advance payment of such assessment. This amount shall be collected and disbursed to the Association as applicable (i) at closing of the purchase and sale of the Unit, or, (ii) immediately upon demand by the Association based on the date of occupancy of the Unit for residential purposes. The capital contributions shall be used in covering operating expenses and other expenses incurred by the Association as determined in the Board's sole discretion pursuant to the Governing Documents. ARTICLE 9. ARCHITECTURAL STANDARDS 9.1. General. No exterior structure shall be placed, erected, made or installed upon any Unit or adjacent to any Unit where the purpose of the structure is to service such Unit, and no improvements (including staking, clearing, excavation, grading and other site work, exterior alteration of existing improvements, and planting or removal of landscaping materials) shall take place except in compliance with this Article, and after approval of the ARB under this Article unless exempted from the application and approval requirements pursuant to Section 9.4. All dwellings constructed on any portion of the Properties shall be designed by and built in accordance with the plans and specifications of a licensed architect or other qualified building designer, unless otherwise approved by the ARB in its sole discretion. This Article shall not apply to the activities of the Declarant, nor to improvements to the Common Area by or on behalf of the Association. This Article may not be amended during the Development Period without the Declarant's written consent. 9.2. Architectural Review. Responsibility for administration of the Design Guidelines and review of all applications for construction and modifications under this Article shall be handled by the ARB, the members of which need not be Members of the Association or representatives of Members, and may, but M:~REO~0889',Pen~aulatCCR-V3.wpd - 19 - THE PENINSULA need not, include architects, landscape architects, engineers or similar professionals, whose compensation, if any, shall be established from time to time by the ARB. The ARB may establish and charge reasonable fees for review of applications hereunder and may require such fees to be paid in full prior to review of any application. Such fees may include the reasonable costs incurred by the ARB in having any application reviewed by architects, engineers or other professionals. The ARB shall have exclusive jurisdiction over all construction on any portion of the Properties. The Declarant shall retain the right to appoint all members of the ARB who shall serve at the Declarant's discretion until the first to occur of (i) one hundred percent (100%) of the Properties have been developed and conveyed to Owners other than Builders and initial construction on each Unit has been completed in accordance with the Design Guidelines, or (ii) the Declarant surrenders the right in a written instrument in recordable form executed by Declarant. Upon the surrender of such right as set forth herein, the Board shall appoint the members of the ARB, who shall thereafter serve and may be removed in the Board's discretion. 9.3. Desiqn Guidelines. The Declarant shall prepare the initial Design Guidelines for the Properties. The Design Guidelines may contain general provisions applicable to all of the Properties, as well as specific provisions which vary from one portion of the Properties to another depending upon the location and unique characteristics. For example, by way of illustration but not limitation, the Design Guidelines may impose stricter requirements on those portions of the Properties adjacent to the Lake. The Design Guidelines are intended to provide guidance to Owners and Builders regarding matters of particular concern to the ARB in considering applications hereunder. The Design Guidelines are not the exclusive basis for decisions of the ARB, and compliance with the Design Guidelines does not guarantee approval of any application. The ARB shall adopt the Design Guidelines at its initiat organizational meeting and thereafter shall have sole and full authority to amend them. Any amendments to the Design Guidelines shall be prospective only. No limitation on the scope of amendments to the Design Guidelines is imposed hereby, except that no amendment shall require the modification or removal of any structure previously approved once the approved construction or modification has commenced. The ARB is expressly authorized to amend the Design Guidelines to remove requirements previously imposed or otherwise to make the Design Guidelines less restrictive. Upon written request, the ARB shall make the Design Guidelines available to Owners and Builders who seek to engage in development or construction within the Properties. 9.4. Procedures. Plans and specifications showing the nature, kind, shape, color, size, materials, and location of all proposed structures and improvements shall be submitted to the ARB for review and a decision to approve or disapprove. In addition, information concerning placement of irrigation systems, drainage, lighting, landscaping and other features of proposed construction shall be submitted as applicable and as required by the Design Guidelines. In reviewing each submission, the ARB may consider the quality of workmanship and design, harmony of external design with existing structures, and location in relation to surrounding structures, topography, and finish grade elevation, among other considerations. Decisions of the ARB may be based solely on aesthetic considerations. Each Owner acknowledges that opinions on aesthetic matters are subjective and may vary as ARB members change over time. In the event that the ARB fails to approve or to disapprove any application within thirty (30) Days after submission of all information and materials reasonably requested, the application shall be deemed approved. However, no approval, whether expressly granted or deemed granted pursuant to the foregoing, shall be inconsistent with the Design Guidelines unless a variance has been granted in writing by the ARB pursuant to this Article. Notwithstanding the above, the ARB by resolution may exempt certain activities from the application and approval requirements of this Article, provided such activities are undertaken in strict compliance with the requirements of such resolution. Approvals granted shall expire after six (6) months if construction thereunder has not commenced. If approval lapses, the most current Design Guidelines shall apply upon re-submittal. 9.5. Specific Guidelines and Restrictions. The following items are strictly regulated by the ARB, and the ARB shall have the right, in its sole discretion, to prohibit or restrict these items within the Properties. Each Owner must strictly comply with the terms of this Section unless approval or waiver in writing is obtained BOOK 15 5 5 15 8 THE PENINSULA from the ARB. The ARB may, but is not required to, adopt specific guidelines as part of the Design Guidelines, or rules and regulations which address these items. (a) Tree Removal. Removal of trees and other natural resources without the prior written consent of the ARB is prohibited except as permitted by the Design Guidelines provided however, any trees that are located within ten (10) feet of a sidewalk, a residence, or a driveway, or any diseased or dead trees required to be removed to promote the growth of other trees, or for safety reasons, may be removed without the written consent of the ARB. (b) Li.qhtin~q. Exterior lighting visible from the street shall not be permitted except for: (i) approved lighting as originally installed on a Unit; (ii) one (1) approved decorative post light; (iii) pathway lighting; (iv) street lights in conformity with any established street lighting program for the Properties; (v) seasonal decorative lights during the usual and common season, subject to such rules and regulations as may be imposed by the Board or ARB; (vi) front house illumination of model homes; or (vii) any additional lighting as may be approved by the ARB under this Article. (c) Exterior Structures. No exterior structure of any kind shall be constructed, erected or placed on the outside portion of the Unit, whether such portion is improved or unimproved, except in strict compliance with this Article. Exterior structures and improvements shall include, but shall not be limited to, staking, clearing, excavation, grading and other site work; initial construction of any dwelling or accessory building; exterior alteration of existing improvements; installation or replacement of mailboxes; basketball hoops; swing sets and similar sports and play equipment; clotheslines; garbage cans; wood piles; swimming pools; docks, piers, or boathouses; gazebos or playhouses; window air-conditioning units or fans; hot tubs; wells; solar panels; antennas; satellite dishes or any other apparatus for the transmission or reception of television, radio, satellite, or other signals of any kind; hedges, walls, dog runs, animal pens, or fences of any kind, including invisible fences; artificial vegetation or sculpture; and planting or removal of landscaping materials. Notwithstanding the foregoing, the Association shall regulate antennas, satellite dishes, or any other apparatus for the transmission or reception of television, radio, satellite or other signals of any kind only in strict compliance with all federal laws and regulations. Any Owner may remodel, paint or redecorate the interior of structures on his Unit without approval; however, modifications to the interior of screened porches, patios, and similar portions of a Unit visible from outside the structures on the Unit shall be subject to approval. No approval shall be required to repaint the exterior of a structure in accordance with the originally approved color scheme or to rebuild in accordance with originally approved plans and specifications. (d) Temporary or Detached Structures. Except as may be permitted by the ARB, no temporary or detached house, dwelling, garage or out building shall be placed or erected on any Unit. No mobile home, trailer home, travel trailer, camper or recreational vehicle shall be stored, parked or otherwise allowed to be placed on a Unit as a temporary or permanent dwelling, except as set forth in Section 10.7. (e) Utility Lines. Overhead utility lines, including lines for cable television, are not permitted, except for temporary lines as required during construction and lines installed by or at the request of Declarant. (f) Si.qns. No signs of any kind shall be erected by an Owner or occupant without prior written consent of the ARB, except (i) signs required by legal proceedings; (ii) not more than one (1) professional security sign; and (iii) such additional signs as may be permitted by the Design Guidelines; provided, however, all signs shall be professionally lettered and prepared. The Declarant and the ARB reserve the right to restrict the size, color, lettering, design, placement and duration of display of any approved or permitted signs. Unless in compliance with this Article, no signs shall be posted or erected by any Owner or occupant within any portion of the Properties, including the Common Area, any Unit, or any structure or dwelling located on the Common Area or any Unit, if visible from the exterior of the structure or dwelling as determined in the ARB's sole discretion. This provision shall not apply to entry, directional, or other signs installed by the Declarant M:~RED\0889\Penlnsula\CCR-V3.wpd - 21 - THE PENINSULA or its duly authorized agents or Builders as may be necessary or convenient for the marketing and development of the Properties. (g) Window Treatments. Unless otherwise approved in writing by the ARB, all window treatments on any structure or dwelling visible from outside such structure or dwelling shall be white or neutral in color. (h) Minimum Dwellinq Size. The Design Guidelines establish for each Unit a minimum square footage of enclosed, heated and cooled living space. Upon written request of an Owner, the ARB may waive the square footage requirement if, in the ARB's sole discretion, the resulting appearance of such residential dwelling will preserve the overall appearance, scheme, and design within the Properties. (i) Water Quality and Erosion Control. The plans for each Unit shall comply with easements, this Declaration and any City or County erosion control ordinance with regard to Water Quality Facilities and erosion control. (j) Mailboxes. The ARB reserves the right to approve the style, design, color and location prior to any original installation or replacement of any mailbox. In addition, the ARB may adopt guidelines establishing standard mailboxes for all or any portion of the Properties. Application shall be made to the ARB prior to replacement of an approved mailbox. By accepting a deed to a Unit, each Owner agrees that the ARB may remove and replace any non-approved mailbox pursuant to Section 9.10 herein, and all damages occasioned by such removal are deemed waived by the Owner. 9.6. Construction Period. The initial construction of all structures must be completed within one (1) year after issuance of a building permit, unless extended by the ARB in its sole discretion. All other construction shall be completed within the time limits established by the ARB. Completion ora structure shall mean that a certificate of occupancy has been issued by the appropriate governmental body. 9.7. No Waiver of Future Approvals. Approval of proposals, plans and specifications, or drawings for any work done or proposed, or in connection with any other matter requiring approval, shall not be deemed to constitute a waiver of the right to withhold approval as to any similar proposals, plans and specifications, drawings, or other matters subsequently or additionally submitted for approval. 9.8. Variance. The ARB may authorize variances from compliance with any of its guidelines and procedures when circumstances such as topography, natural obstructions, hardship, or aesthetic or environmental considerations require, but only in accordance with duly adopted rules and regulations. Such variances may only be granted, however, when unique circumstances dictate and no variance shall (a) be effective unless in writing; (b) be contrary to this Declaration; or (c)prevent the ARB from denying a variance in other circumstances. For purposes of this Section, the inability to obtain approval of any governmental agency, the issuance of any permit, or the terms of any financing shatl not be considered a hardship warranting a variance. 9.9. Limitation of Liability. The standards and procedures established pursuant to this Article are intended to provide a mechanism for maintaining and enhancing the overall aesthetics of the Properties only, and shall not create any duty to any Person. Review and approval of any application pursuant to this Article is made on the basis of aesthetic considerations only and neither the Declarant, the Board, nor the ARB shall bear any responsibility for ensuring the structural integrity or soundness of approved construction or modifications, the adequacy of soils or drainage, compliance with building codes and other governmental requirements including without limitation any City or County erosion control ordinance, all dwellings are of comparable quality, value or size, of similar design, or aesthetically pleasing or otherwise acceptable to neighboring property owners. Neither the Declarant, the Association, the Board, the ARB, nor member of any of the foregoing shall be held liable for any injury, damages, or loss arising out of the manner or quality of BOOK 15 5 5 J'AG[ 15 9 OOK 15 5 5 P, E 16 0 THE PENINSULA approved construction on or modifications to any Unit. In all matters, the ARB, and its members shall be defended and indemnified by the Association as provided in Section 4.7. 9.10. Enforcement. (a) The Declarant, or any member of the ARB, or the representatives of each, shall have the right, during reasonable hours and after reasonable notice, to enter upon any Unit to inspect for the purpose of ascertaining whether any structure or improvement is in violation of this Article. Any structure, improvement or landscaping placed or made in violation of this Article shall be deemed to be nonconforming. Upon written request from the ARB, Owners shall, at their own cost and expense, remove such structure or improvement and restore the property to substantially the same condition as existed prior to the nonconforming work. Should an Owner fail to remove and restore the Unit as required, any authorized agent of the Board may enforce the decisions of the ARB by any means of enforcement described in Section 4.4. In addition, the Declarant, Board, ARB or the representatives of each shall have the right to enter the property pursuant to Section 11.10, remove the violation, and restore the Unit to substantially the same condition as previously existed. Entry onto a Unit for the purpose of inspecting or enforcing compliance with this Article shall not constitute a trespass. All costs, together with the interest at the maximum rate then allowed by law, may be assessed against the benefitted Unit and collected as a Specific Assessment pursuant to Section 8.6(b) which shall be subject to enforcement as set forth in Article 8. (b) Unless otherwise specified in writing by the ARB, all approvals granted hereunder shall be deemed conditioned upon completion of all elements of the approved work and all work previously approved with respect to the same Unit in the manner approved, unless approval to modify any application has been obtained. In the event that any Person fails to commence and diligently pursue to completion all approved work, the Association shall be authorized, after notice to the Owner of the Unit and an opportunity to be heard in accordance with the By-Laws, to enter upon the Unit and remove or complete any incomplete work and to assess all costs incurred against the Unit and the Owner thereof as a Specific Assessment pursuant to Section 8.6(b), which shall be subject to enforcement pursuant to Article 8. (c) Neither the ARB, the Association, the Declarant, nor their officers, directors or members shall be held liable to any Person for exercising the rights granted by this Article. Any contractor, subcontractor, agent, employee, or other invitee of an Owner who fails to comply with the terms and provisions of this Article or the Design Guidelines may be excluded by the ARB from the Properties, subject to the notice and hearing procedures contained in the By-Laws. (d) In addition to the foregoing, the Association shall have the authority and standing to pursue all legal and equitable remedies available to enforce the provisions of this Article and the decisions of the ARB. ARTICLE 10. USE RESTRICTIONS 10.1. General. This Article sets out certain use restrictions which must be complied with by all Owners and occupants of any Unit. The Properties shall be used only for residential, recreational, and related purposes (which may include, without limitation, model homes and sales offices for Builders, an information center and/or a sales office for any real estate broker retained by the Declarant to assist in the sale of property described on Exhibit A or Exhibit B, offices for any property manager retained by the Association, or business offices for the Declarant or the Association, or any related parking areas) consistent with this Declaration and any Supplemental Declaration. 10.2. Rules and Requlations. In addition to the use restrictions and regulations stated in this Article, the Board may, from time to time, without consent of the Members, promulgate, modify, or delete rules and regulations applicable to the Properties. Such rules and regulations shall be distributed to all Owners and THE PEENIN SUlkS, occupants prior to the date that they are to become effective and shall thereafter be binding upon all Owners and occupants until and unless overruled, canceled, or modified in a regular or special meeting by Members holding a Majority of the Class "A" votes in the Association, and, during the Development Period, the written consent of the Declarant. 10.3. Occupants Bound. All provisions of the Governing Documents governing the conduct of Owners and establishing sanctions against Owners shall also apply to all occupants even though occupants are not specifically mentioned. 10.4. Leasing. Units may be leased for residential purposes only. All leases shall require, without limitation, that the tenant acknowledge receipt of a copy of the Declaration, By-Laws, use restrictions, and rules and regulations of the Association. The lease shall also obligate the tenant to comply with the foregoing. The Board may require notice of any lease together with such additional information deemed necessary by the Board. 10.5. Residential Use. (a) All Units shall be used for residential purposes of a single family and for ancillary business or home office uses. A business or home office use shall be considered ancillary so long as: (i) the existence or operation of the activity is not apparent or detectable by sight, sound, or smell from outside the Unit; (ii) the activity conforms to all zoning requirements for the Properties; (iii) the activity does not involve regular visitation of the Unit by clients, customers, suppliers, or other invitees or door-to-door solicitation of residents of the Properties; (iv) the activity does not increase traffic or include frequent deliveries within the Properties; and (v) the activity is consistent with the residential character of the Properties and does not constitute a nuisance, or a hazardous or offensive use, or threaten the security or safety of other residents of the Properties, as may be determined in the sole discretion of the Board. (b) No other business, trade, or similar activity shall be conducted upon a Unit without the prior written consent of the Board. The terms "business" and "trade," as used in this provision, shall be construed to have their ordinary, generally accepted meanings and shall include, without limitation, any occupation, work, or activity undertaken on an ongoing basis which involves the provision of goods or services to persons other than the provider's family and for which the provider receives a fee, compensation, or other form of consideration, regardless of whether: (i) such activity is engaged in full or part-time, (ii) such activity is intended to or does generate a profit, or (iii) a license is required. (c) The leasing of a Unit shall not be considered a business or trade within the meaning of this Section. This Section shall not apply to any activity conducted by the Declarant or a Builder approved by the Declarant with respect to its development and sale of the Properties or its use of any Units which it owns within the Properties, including the operation of a timeshare or similar program. 10.6. Occupancy of Unfinished Units. No dwelling erected upon any Unit shall be occupied in any manner before commencement of construction or while in the course of construction, nor at any time prior to the dwelling being fully completed. Completion of a dwelling shall mean that a certificate of occupancy has been issued by the appropriate governmental body. 10.7. Vehicles. All vehicles shall be subject to such reasonable rules and regulations as the Board of Directors may adopt. In addition, the following shall apply: (a) Automobiles and non-commercial trucks and vans shall be parked only in the garages or in the driveways, if any, serving the Units unless otherwise approved by the ARB; provided however, the Declarant and/or the Association may designate certain on-street parking areas for visitors or guests subject to reasonable rules. No automobile or non-commercial truck or van may be left upon any portion of the MAREO~O889~Peninsula~C C R-V3 wpd - 24 - THE PENINSULA Properties, except in a garage, if it is unlicensed or if it is in a condition such that it is incapable of being operated upon the public highways. Such vehicle shall be considered a nuisance and may be removed from the Properties. With the exception of golf cads using the cart path system, public safety vehicles and those vehicles specifically authorized by the Board, no motorized vehicles shall be permitted on pathways or unpaved Common Area. (b) Recreational vehicles owned by Owners or occupants of Units shall be parked only in the garages serving the Units. The guest of an Owner or occupant may park a recreational vehicle on the driveway serving the Owner's or occupant's Unit for short periods of time as defined by the Board, not to exceed seven (7) Days in any calendar year. Any recreational vehicle parked or stored in violation of this provision in excess of two (2) Days shall be considered a nuisance and may be removed from the Properties. The term "recreational vehicles," as used herein, shall include, without limitation, motor homes, mobile homes, boats, "jet skis" or other watercraft, trailers, other towed vehicles, motorcycles, minibikes, scooters, golf carts, go-carts, campers, buses, commercial trucks and vans. Trucks with mounted campers which are an Owner's or occupant's primary means of transportation shall not be considered recreational vehicles, provided they are used on a regular basis for transportation and the camper is stored out of public view. (c) Commercial vans, service and delivery vehicles may be parked in the Properties for such periods of time as are reasonably necessary to provide service or to make a delivery within the Properties. 10.8. Animals and Pets. No animals, livestock, or poultry of any kind may be raised, bred, kept, or permitted on any Unit, with the exception of dogs, cats, or other usual and common household pets in reasonable number, as determined by the Board. No animals shall be kept, bred or maintained for any commercial purpose without the prior written approval of the Board. All pets shall be reasonably controlled by the owner whenever outside a Unit and shall be kept in such a manner as to not become a nuisance by barking or other acts. The owners of the pet shall be responsible for all of the pet's actions. If, in the sole opinion of the Board, any animal becomes dangerous or an annoyance or nuisance in the Properties or to nearby property or destructive of wildlife, such animal shall be removed from the Properties. By way of explanation and not limitation, this Section may be enforced by exercising self-help rights provided in Section 4.4. 10.9. Nuisance. Each Owner and occupant shall have the responsibility to prevent the development of any unclean, unhealthy, unsightly, or unkempt condition on his or her property. The Properties shall not be used, in whole or in part, for the storage of any property or thing that will cause such Unit 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 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 within the Properties, nor shall anything be done tending to cause embarrassment, discomfort, annoyance, or nuisance to any Person within the Properties. No Person shall maintain 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 Properties. 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 or as approved by the ARB, shall be located, installed or maintained upon the exterior of any Unit unless required by law. Any siren or device for security purposes shall contain a device or system which causes it to shut off automatically. The reasonable and normal development, construction and sales activities conducted or permitted by the Declarant shall not be considered a nuisance or a disturbance of the quiet enjoyment of any Owner or occupant. M:'~RED'~088g~Peninsula~'CCR-V3.wpd - 25 - THE PENINSULA 10.10. Storaqe of Materials, Trash, Garbaqel Dumpinql Etc. (a) Each Owner shall maintain its Unit in a neat and orderly condition throughout initial construction ora residential dwelling and not allow trash and debris from its activities to be carried by the wind or otherwise scattered within the Properties. Storage of construction materials on the Unit shall be subject to such conditions, rules, and regulations as may be set forth in the Design Guidelines. Each Owner shall keep roadways, easements, swales, and other portions of the Properties clear of silt, construction materials and trash from its activities at all times. Trash and debris during initial construction of a residential dwelling shall be contained in standard size dumpsters or other appropriate receptacles and removed regularly from Units and shall not be buried or covered on the Unit. Prior to each weekend and during the weekend, the Builder must police any Unit on which construction is in progress, and must neatly stack or place all materials, and remove any trash or waste materials. In addition, Owners shall remove trash and debris from the Unit upon reasonable notice by Declarant in preparation for special events. (b) All garbage cans shall be located or screened so as to be concealed from view of neighboring streets and property. All rubbish, trash, and garbage shall be regularly removed and shall not be allowed to accumulate. (c) Dumping of the following onto the Common Area or into any drainage ditch, stream, pond, Lake, Water Quality Facility, greenbelt, buffer zone, or nondisturbance area within or adjacent to the Properties is prohibited: grass clippings, leaves, or other debris, rubbish, trash, or garbage, petroleum products, fertilizers, or potentially hazardous or toxic substances. Notwithstanding the foregoing, fertilizers may be applied to landscaping on any Unit provided adequate steps are taken to eliminate runoff into drainage ditches, streams, ponds, or lakes within or adjacent to the Properties. 10.11. General Prohibitions. (a) Guns. The discharge of firearms on the Properties is prohibited. The term"firearms" includes without limitation "B-B" guns, pellet guns, and firearms of all types. The Board may impose fines and exercise other means of enforcement as set forth in this Declaration, but shall have no obligation to exercise self-help to prevent or stop such discharge. (b) Combustible Liquid. Storage of gasoline, heating or other fuels is prohibited except for a reasonable amount of fuel that may be stored on each Unit for emergency purposes and operation of lawn mowers and similar tools or equipment; provided that the Association shall be permitted to store fuel for operation of maintenance vehicles, generators and similar equipment. 10.12. Streams. No streams which run across any Unit may be dammed, or the water therefrom impounded, diverted, or used for any purpose without the prior written consent of the Board, except that the Declarant shall have such rights as provided in Article 11. 10.13. The Lake. The Lake shall be used only if permitted by and in accordance with the Lake Use Restrictions promulgated by the City and County. The Association shall not be responsible for any loss, damage, or injury to any person or property arising out of the authorized or unauthorized use of the Lake. 10.14. Drainage, Gradinq and Irrigation. (a) Catch basins and drainage areas are for the purpose of natural flow of water only. No improvements, obstructions or debris shall be placed in these areas. No Owner or occupant may obstruct or rechannel the drainage flows after location and installation of drainage swales, storm sewers, or storm drains. THE PENINSULA (b) Use of the areas designated as "Drainage Easement Areas" on any recorded subdivision plat of the Properties, shall be subject to strict prohibitions against encroachment of structures into, over or across the Drainage Easement Areas, and the right of the City and Declarant to go upon and maintain the Drainage Easement Areas. Such maintenance activities may include disturbance of landscaping pursuant to the terms contained in the Declaration of Easements, notwithstanding approval of the landscaping as set forth in Article 9. (c) No Person shall alter the grading of any Unit without prior approval pursuant to Article 9 of this Declaration. The Declarant hereby reserves for itself and the Association a perpetual easement across the Properties for the purpose of altering drainage and water flow. The exercise of such an easement shall not materially diminish the value of or unreasonably interfere with the use of any Unit without the Owner's consent. (d) The Properties are located in the vicinity of bodies of water and for that reason involve special considerations regarding water runoff from the Properties. Declarant has designed and constructed Water Quality Facilities which the Declarant or City will maintain to assure performance of those facilities as intended. All areas designated as "Water Quality Facilities" appearing on a recorded subdivision plat of the Properties shall be generally left in a natural state, and any proposed alteration or landscaping of the Water Quality Facilities must be in accordance with any restrictions or covenants recorded against such property and be approved by all appropriate regulatory bodies and the ARB in accordance with Article 9. (e) Except as otherwise set forth herein with regard to Water Quality Facilities, each Owner shall be responsible for maintaining any portion of the drainage system located on his Unit, and for controlling the natural and man-made water flow from his Unit. No Owner shall be entitled to overburden the drainage easements or drainage system within any portion of the Properties with water flow from its Unit in excess of the natural flow of water. Except as otherv,,ise set forth herein with regard to Water Quality Facilities, Owners shall be responsible for maintaining ground cover in drainage areas, removing any accumulated debris from catch basins and drainage areas, and for all remedial acts necessary to cure any unreasonable drainage flows from Units. Neither the Association nor the Declarant bears any responsibility for remedial actions to any Unit. (f) Owners shall not install irrigation systems which draw upon ground or surface waters nor from the Lake or ponds within the Propedies. 10.15. Greenbelts, Buffer Zones, and Nondisturbance Areas. (a) Certain greenbelts, buffer zones and/or nondisturbance areas are located within or adjacent to the Properties. All areas designated as "greenbelts" "buffer zones" or "nondisturbance areas" shall be generally left in a natural state, and any proposed alteration or landscaping of these areas must be in accordance with any restrictions or covenants recorded against such property and be approved by all appropriate regulatory bodies and the ARB in accordance with Article 9. (b) All Persons shall comply with the City erosion control ordinance in construction of improvements on any Unit and in conducting any activity within non-disturbance buffer zones and restricted areas of impervious surface. 10.16. Open Spaces, Green Spaces, Parks and Recreation Areas. (a) Owners of Units, as well as their families, tenants, guests, invitees, and pets shall refrain from any actions which deter from the enjoyment by other Owners of areas within the Properties designated as "Open Spaces", "Green Spaces", "Parks" and/or "Recreation Areas", etc. Prohibited activities shall include without limitation, maintenance of dogs or other pets under conditions which interfere with the use of the specified areas by other Owners, playing of loud radios or musical instruments, holding of large gatherings THE PENINSULA without advance approval of the Board, and use of outdoor grills, cooking facilities, tents or other temporary structures, stages, vending machines or facilities, except for events approved in advance by the Board. The Board may promulgate other rules and restrictions for the use of these areas. (b) Encroachment of structures into, over, or across any park or recreation areas shown on any recorded subdivision plat of the Properties is strictly prohibited. Landscaping installed in these areas is subject to removal in the reasonable discretion of Declarant in the ordinary course of maintenance of these areas. 10.17. Sight Distance at Intersections. All property located at street intersections or driveways shall be landscaped so as to permit safe sight across such areas. 10.18. Subdivision of Unit. No Unit shall be subdivided or its boundary lines changed after a subdivision plat including such Unit has been approved and filed in the Public Records without the Declarant's prior written consent during the Development Period, and the prior written consent of the ARB thereafter. In addition, no home shall be subdivided or partitioned to create housing for more than a single family. Declarant, however, hereby expressly reserves the right to replat any Unit or Units which it or any Builder owns, with the written prior consent of the owner of the Unit or Units affected. Any such division, boundary line change, or repfatting shall not be in violation of the applicable subdivision and zoning regulations, if any. ARTICLE 11. EASEMENTS Declarant reserves, creates, establishes, promulgates, and declares the non-exclusive, perpetual easements as set forth herein for the enjoyment of the Declarant, the Association, the Members, the Owners, and their successors-in-title. 11.1. Easements of Encroachment. Declarant reserves, creates, establishes, promulgates and declares non-exclusive, perpetual, reciprocal, appurtenant easements of encroachment, and for maintenance and use of any permitted encroachment, between adjacent Units, and between each Unit and any adjacent Common Area, due to the unintentional placement or settling or shifting of the improvements constructed, reconstructed or altered thereon (in accordance with the terms of these restrictions) to a distance of not more than three (3) feet, as measured from any point on the common boundary along a line perpendicular to such boundary. However, in no event shall an easement for encroachment exist if such encroachment occurred due to willful and knowing conduct on the part of, or with the knowledge and consent of, the Person claiming the benefit of such easement. 11.2. Easements for Utilities, Etc. (a) Declarant reserves, creates, establishes, promulgates and declares non-exclusive, perpetual, appurtenant easements for itself during the Development Period, for the Association, and for the designees of each (which may include, without limitation, any governmental or quasi-governmental entity and any utility company, whether public or private) perpetual non-exclusive easements upon, across, over, and under all of the Properties (but not through a structure) to the extent reasonably necessary for the purpose of installing, constructing, monitoring, replacing, repairing, maintaining, operating and/or removing cable television or master television antenna systems and other devices for sending or receiving data and/or other electronic signals; security and similar systems; roads, walkways, pathways, cart paths and trails; lakes, ponds and wetlands; drainage and irrigation systems, street lights; signage; and all utilities including but not limited to water, sewer, telephone, gas, and electricity and utility meters; and an easement for access of vehicular and pedestrian traffic over, across and through the Properties, as necessary, to exercise the above-described easements. M:'~R£D~O889a, Peninsula;CCR-V3.wpd -28- BOOK 15 5 5 PAGE 16 5 THE PENINSULA (b) Declarant specifically grants to the local water supplier, electric company, telephone company and natural gas supplier easements across the Properties for ingress, egress, installation, reading, replacing, repairing, and maintaining utility lines, meters and boxes, as applicable. (c) Declarant reserves, creates, establishes, promulgates, and declares for itself during the Development Period, and its designees, non-exclusive, perpetual, reciprocal, appurtenant easements and the non-exclusive right and power to grant such specific easements as may be necessary, in the sole discretion of Declarant, in connection with the orderly development of any property described on Exhibit A or Exhibit B.. (d) Any damage to a Unit resulting from the exercise of the easements described in subsections (a), (b) and (c) of this Section shall promptly be repaired by, and at the expense of, the Person exercising the easement. The exercise of these easements shall not extend to permitting entry into the structures on any Unit, nor shall it unreasonably interfere with the use of any Unit, and, except in an emergency, entry onto any Unit shall be made only after reasonable notice to the Owner or occupant. (e) Declarant reserves unto itself the right, in the exercise of its sole discretion, upon the request of any Person holding, or intending to hold, an interest in the Properties, or at any other time, (i) to release all or any portion of the Properties from the burden, effect, and encumbrance of any of the easements granted or reserved under this Section, or (ii) to define the limits of any such easements. 11.3. Easement for Erosion Control and Drainaqe Maintenance Declarant reserves, creates, establishes, promulgates, and declares non-exclusive, perpetual, reciprocal, appurtenant easements for itself during the Development Period, and for the Association and the City, and their respective representatives, successors and assigns, contractors and agents, over, across, under, through and upon each Unit for the purposes of: (a) controlling soil erosion, including grading and planting with vegetation any areas of any Unit which are or may be subject to soil erosion and complying with the City erosion control ordinance; (b) Properties; drainage of natural or man-made water flow and water areas from any portion of the (c) changing, modifying or altering the natural flow of water, water courses or waterways on or adjacent to any Unit or Common Area; (d) dredging, enlarging, reducing or maintaining any water areas or waterways within the Properties; and (e) installing such pipes, lines, conduits, Water Quality Facilities, or other equipment or facilities as may be necessary for slope control, drainage and waterway maintenance of any portion of the Propedies. 11.4. Easements for Water Quality Facility, Drainage Easement Area Maintenance (a) Declarant reserves, creates, establishes, promulgates and declares non-exclusive, perpetual, appurtenant easements for itself and its designees (including without limitation the City) to allow the passing, discharging and draining of surface waters over and across the Properties to the Drainage Easement Areas and Water Quality Facilities shown on recorded subdivision plats of the Properties. The easement rights reserved are perpetual and run with and are appurtenant to title to the Properties and constitute a perpetual burden upon the Drainage Easement Areas and Water Quality Facilities. The rights reserved include without limitation the right of the Declarant and its designees to go upon the Drainage Easement Areas and Water Quality Facilities to effect maintenance, repair and replacement, and the right of the City to go upon the Drainage Easement Areas and Water Quality Facilities to effect maintenance, repair and replacement of the M:~.EDtO8§9~Peninsula',CCR-V3 wpd - 29 - THE PENINSULA drainage and Water Quality Facilities, and to disturb existing landscaping within the Drainage Easement Areas and to temporarily pile dirt and plant material upon the Drainage Easement Areas, provided the area is restored to a neat and attractive condition to the extent practical, as soon as reasonably possible after completion of the activities authorized hereunder. Use of the Drainage Easement Areas is limited to landscaping. Encroachment of structures into, over, or across Drainage EasementAreas is strictly prohibited. Landscaping in the Drainage Easement Areas is subject to removal in the reasonable discretion of Declarant and/or City in the ordinary course of maintenance of the drainage and water quality facilities. Such landscaping shall be installed in conformance with Article 9 herein. (b) In addition to the foregoing, the Declarant reserves for itself and its successors, assigns, and designees the nonexclusive right and easement, but not the obligation, to enter upon the Properties to (i) construct, maintain, and repair any Water Quality Facility, watt, dam, or other structure retaining water; and (ii) remove trash and other debris therefrom and fulfill any maintenance responsibilities assumed by Declarant. All persons entitled to exercise these easements shall use reasonable care in, and repair any damage resulting from the intentional exercise of such easements. Nothing herein shall be construed to make Declarant or any other Person liable for damage resulting from flooding due to heavy rainfall or other natural disasters. (c) Declarant reserves unto itself the right, in the exercise of its sole discretion, upon the request of any Person holding, or intending to hold, an interest in the Properties, or at any other time, (i) to release all or any portion of the Properties from the burden, effect, and encumbrance of any of the easements granted or reserved under this Section, or (ii) to define the limits of any such easements. 11.5. Easement for Greenbelt Maintenance. (a) The Declarant reserves for itself and its successors, assigns, and designees the nonexclusive right and easement, but not the obligation, to enter upon greenbelts, buffer zones and nondisturbance areas located within the Area of Common Responsibility to remove trash and other debris therefrom and fulfill maintenance responsibilities as provided in this Declaration. The Declarant's rights and easements provided in this Section shall be transferred to the Association at such time as the Declarant shall cease to own any property subject to the Declaration, or such earlier time as Declarant may elect, in its sole discretion, to transfer such rights by a written instrument. The Declarant, the Association, and their designees shall have an access easement over and across any of the Properties abutting or containing any portion of greenbelt, buffer zone or nondisturbance area to the extent reasonably necessary to exercise their rights under this Section. (b) Encroachment of structures into, over, or across greenbelts, buffer zones and nondisturbance areas shown on any recorded subdivision plat of the Properties is strictly prohibited. Landscaping in these areas is subject to removal in the reasonable discretion of Declarant and/or City in the ordinary course of maintenance of these areas. Any landscaping permitted shall be installed in conformance with Article 9 herein. All Persons entitled to exercise these easements shall use reasonable care in, and repair any damage resulting from the intentional exercise of such easements. (c) Declarant reserves unto itself the right, in the exercise of its sole discretion, upon the request of any Person holding, or intending to hold, an interest in the Properties, or at any other time, (i) to release all or any portion of the Properties from the burden, effect, and encumbrance of any of the easements granted or reserved under this Section, or (ii) to define the limits of any such easements. 11.6. Easement for Park and Recreation Area Maintenance. (a) The Declarant reserves for itself and its successors, assigns, and designees the nonexclusive right and easement, but not the obligation, to enter upon park and recreation areas located within the Area 15 5 5 rao 16 8 THE PENINSULA, of Common Responsibility to remove trash and other debris therefrom and fulfill maintenance responsibilities as provided in this Declaration. The Declarant's rights and easements provided in this Section shall be transferred to the Association at such time as the Declarant shall cease to own any property subject to the Declaration, or such earlier time as Declarant may elect, in its sole discretion, to transfer such rights by a written instrument. The Declarant, the Association, and their designees shall have an access easement over and across any of the Properties or Units abutting or containing any portion of park or recreation area to the extent reasonably necessary to exercise their rights under this Section. (b) Declarant reserves unto itself the right, in the exercise of its sole discretion, upon the request of any Person holding, or intending to hold, an interest in the Properties, or at any other time, (i) to release all or any portion of the Properties from the burden, effect, and encumbrance of any of the easements granted or reserved under this Section, or (ii) to define the limits of any such easements. 11.7. Easement for Walkinq Trail and Cart Path Access. Declarant hereby grants to the Owners a perpetual, non-exclusive easement over and across any areas designated as "walking trails" or "paths" on any recorded subdivision plat of the Properties. Use of such walking trails or paths shall be governed by reasonable rules and regulations promulgated by the Association. 11.8. Easements to Serve Additional Property. The Declarant hereby reserves, creates, establishes, promulgates and declares for itself and its duly authorized agents, representatives, and employees, successors, assigns, licensees, and mortgagees, reciprocal appurtenant easements over the Common Area for the purposes of enjoyment, use, access, and development of the property described in Exhibit B, whether or not such property is made subject to this Declaration. This easement includes, but is not limited to, a right of ingress and egress over the Common Area for construction of roads and for connecting and installing utilities and improvements on such property. In addition, Declarant reserves the non-exclusive right and power to grant such specific easements as may be necessary, in the sole discretion of Declarant, in connection with the orderly development of any property described on Exhibit A or Exhibit B. 11.9. Easement for Entry. Declarant, reserves, creates, establishes, promulgates and declares non-exclusive, perpetual, appurtenant easements for the Association to enter upon any Unit for emergency, security, and safety reasons. Such right may be exercised by any member of the Board or the Association's officers, agents, employees and managers of the Association and its officers, and by all police officers, fire fighters, ambulance personnel, and similar emergency personnel in the performance of their duties. Except in emergencies, entry onto a Unit shall be only during reasonable hours and after notice to and permission from the Owner. This easement includes the right to enter any Unit to cure any condition which may increase the possibility of fire, slope erosion, immediate risk of personal injury, or other hazard if an Owner fails or refuses to cure the condition within a reasonable time after request by the Board, but shall not authorize entry into any dwelling without permission of the Owner, except by emergency personnel acting in their official capacities. Entry under this Section shall not constitute a trespass. 11.10. Easements for Maintenance and Enforcement. (a) Declarant, reserves, creates, establishes, promulgates and declares non-exclusive, perpetual, appurtenant easements for the Association and its members or agents to enter all portions of the Properties, including each Unit, to (i) perform its maintenance responsibilities under Article 5, and (ii) make inspections to ensure compliance with the Governing Documents. Except in emergencies, entry onto a Unit shall be only during reasonable hours. This easement shall be exercised with a minimum of interference to the quiet enjoyment to Owners' property, and any damage shall be repaired by the Association at its expense. Entry under this Section shall not constitute a trespass. (b) The Association also may enter a Unit to abate or remove, using such measures as may be reasonably necessary, any structure, thing or condition which violates the Governing Documents. All costs M:~REO~0889~Peninsula\CCR-V3 wpd - 31 - THE PENINSULA incurred, including reasonable attorneys fees, may be assessed against the violator as a Specific Assessment pursuant to Section 8.6(b). 11.11. Easement for Lateral Support. Declarant reserves, creates, establishes, promulgates and declares non-exclusive, perpetual, reciprocal, appurtenant easements over every portion of the Common Area, every Unit, and any improvement which contributes to the lateral support of another portion of the Common Area or of another Unit an easement for lateral support, and each shall also have the right to lateral support which shall be appurtenant to and pass with title to such property. 11.12. Easement for Special Events. Declarant reserves, creates, establishes, promulgates and declares for itself, its successors, assigns and designees, a perpetual, non-exclusive, appurtenant easement over the Common Area for the purpose of conducting, or allowing its designees to conduct, educational, cultural, entertainment, promotional or sporting events, and other activities of general community interest, including without limitation the Tour of Homes, at such locations and times as Declarant, in its sole discretion, deems appropriate. Each Owner, by accepting a deed or other instrument conveying any interest in a Unit, acknowledges and agrees that the exercise of this easement may result in a temporary increase in traffic, noise, gathering of crowds, and related inconveniences, and each Owner agrees on behalf of itself and the occupants of its Unit to take no action, legal or otherwise, which would interfere with the exercise of such easement or to recover damages for or as the result of any such activities. 11.13. Liability for Use of Easements. No Owner shall have a claim or cause of action against the Declarant, its successors or assigns, arising out of the exercise or non-exercise of any easement reserved hereunder or shown on any subdivision plat for the Properties, except in cases of willful or wanton misconduct. ARTICLE 12, MORTGAGEE PROVISIONS The following provisions are for the benefit of holders, insurers and guarantors of first Mortgages on Units in the Properties. The provisions of this Article apply to both this Declaration and to the By-Laws, notwithstanding any other provisions contained therein. 12.1. Notices of Action. An institutional holder, insurer, or guarantor of a first Mortgage who provides a written request to the Association (such request to state the name and address of such holder, insurer, or guarantor and the street address of the Unit to which its Mortgage relates, thereby becoming an "Eligible Holder"), will be entitled to timely written notice of: (a) Any condemnation loss or any casualty loss which affects a material portion of the Properties or which affects any Unit on which there is a first Mortgage held, insured, or guaranteed by such Eligible Holder; (b) Any delinquency in the payment of assessments or charges owed by a Unit subject to the Mortgage of such Eligible Holder, where such delinquency has continued for a period of sixty (60) Days, or any other violation of the Declaration or By-Laws relating to such Unit or the Owner or Occupant 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 Eligible Holders pursuant to Federal Home Loan Mortgage Corporation requirements. M:'~REDtO889'PeninsuIa'CCR-V3.wpd - 32- 15 5 5 1 fi 9 THE PENINSULA 12.2. Special FHLMC Provision. (a) So long as required by the Federal Home Loan Mortgage Corporation, the following provisions apply in addition to and not in lieu of the foregoing. Unless at least sixty-seven (67%) of the first Mortgagees or Members representing at least sixty-seven (67%) of the total Association vote consent, the Association shall not: (i) By act or omission seek to abandon, partition, subdivide, encumber, sell, or transfer all or any portion of the real property comprising the Common Area which the Association owns, directly or indirectly (neither the conveyance of property in accordance with Section 4.3 nor the granting of easements for utilities or other similar purposes consistent with the intended use of the Common Area shall be deemed a transfer within the meaning of this paragraph); (ii) Change the method of determining the obligations, assessments, dues, or other charges which may be levied against an Owner of a Unit (a decision by the Board, execution of a Cost Sharing Agreement, contractual obligations, or provisions of any declaration subsequently recorded regarding Specific Assessments for Exclusive Common Area shall not be subject to this provision) where such decision, contract, or subsequent declaration is otherwise authorized by this Declaration); (iii) By act or omission change, waive, or abandon any scheme of regulations or enforcement pertaining to architectural design, exterior appearance or maintenance of Units and the Common Area (the issuance and amendment of Design Guidelines, architectural standards, procedures, rules and regulations, or use restrictions shall not constitute a change, waiver, or abandonment within the meaning of this provision); (iv) Fail to maintain insurance, as required by this Declaration; or (v) Use hazard insurance proceeds for any Common Area losses for other than the repair, replacement, or reconstruction of such property. (b) First Mortgagees may, jointly or singly, pay taxes or other charges which are in default and which may or have become a charge against the Common Area and may pay overdue premiums on casualty insurance policies or secure new casualty insurance coverage upon the lapse of an Association policy, and first Mortgagees making such payments shall be entitled to immediate reimbursement from the Association. 12.3. No Priority. No provision of this Declaration or the By-Laws gives or shall be construed as giving any Owner or other party priority over any rights of the first Mortgagee of any Unit in the case of distribution to such Owner of insurance proceeds or condemnation awards for losses to or a taking of the Common Area. 12.4. Notice to Association. Upon request, each Owner shall be obligated to furnish to the Association the name and address of the holder of any Mortgage encumbering such Owner's Unit. 12.5. Construction of Article 12. Nothing contained in this Article shall be construed to reduce the percentage vote that must otherwise be obtained under the Declaration, By-Laws, or Georgia law for any of the acts set out in this Article. 12.6. Failure of Mortqaqee to Respond. Any Mortgagee who receives a written request from the Board to respond to or consent to any action shall be deemed to have approved such action if the Association does not receive a written response from the Mortgagee within thirty (30) Days of the date of the Association's request, provided such request is delivered to the Mortgagee by certified or registered mail, return receipt requested. M:~RED~0889~Peninsula~,CCR-V3 wpd - 33 - THE PENINSULA ARTICLE 13. DECLARANT'S RIGHTS 1 3.1. Transfer or Assiqnment. Any or all of the special rights and obligations of the Declarant set forth in the Governing Documents may be transferred or assigned in whole or in part to other Persons, provided that the transfer shall not reduce an obligation nor enlarge a right beyond that which the Declarant has under this Declaration or the By-Laws. Upon any such transfer, the Declarant shall be automatically released from any and all liability arising with respect to such transferred rights and obligations. No such transfer or assignment shall be effective unless it is in a written instrument signed by the Declarant and duly recorded in the Public Records. 13.2. Development and Sales. The Declarant and Builders authorized by Declarant may maintain and carry on upon portions of the Properties such facilities and activities as, in the sole opinion of the Declarant, may be reasonably required, convenient, or incidental to the development of the Properties, and/or construction or sale of Units, including, but not limited to, business offices, signs, model homes, sales offices, and related parking facilities the construction or sale of Units, such as sales activities, tournaments, charitable events, and promotional events, and restrict Members from using the Common Area during such activities. Such activities shall be conducted in a manner to minimize (to the extent reasonably possible) any substantial interference with the Members' use and enjoyment of the Common Area. In the event that any such activity necessitates exclusion of Owners from Common Areas, such activities shall not exceed seven (7) consecutive Days. The Declarant and authorized Builders shall have easements over the Properties for access, ingress and conducting such activities. The Declarant and authorized Builders shall have easements for access to and use of such facilities. In addition, the Declarant and Builders authorized by Declarant may establish within the Properties, including any clubhouse, such facilities as, in the sole opinion of the Declarant, may be reasonably required, convenient, or incidental to the development of the Properties and/or the construction or sale of Units, including, but not limited to, business offices, signs, model homes, tents, sales offices, sales centers and related parking facilities. During the Development Period, Owners may be excluded from use of all or a portion of such facilities in the Declarant's sole discretion. The Declarant and authorized Builders shall have easements over the Properties for access to, ingress, and egress and use of such facilities. Declarant may permit the use of any facilities situated on the Common Area by Persons other than Owners without the payment of any use fees. 13.3. Improvements to Common Area. The Declarant and its employees, agents and designees shall also have a right and easement over and upon all of the Common Area for the purpose of making, constructing and installing such improvements to the Common Area as they deem appropriate in their sole discretion. 13.4. Additional Covenants. No Person shall record any declaration of covenants, conditions and restrictions, declaration of easements, declaration of condominium, or similar instrument affecting any portion of the Properties without Declarant's review and written consent. Any attempted recordation without such consent shall result in such instrument being void and of no force and effect unless subsequently approved by written consent signed by the Declarant and recorded in the Public Records. Any conflicts between the Governing Documents and any subsequent instrument recorded by another Person and consented to by the Declarant shatl be resolved in favor of the Governing Documents. 13.5. Riqht of Class "B" Member to Disapprove Actions. So long as the Class "B" membership exists, the Class "B" Member shall have the right to disapprove any action, policy or program of the Association, the Board and any committee which, in the sole judgment of the Class "B" Member, would tend to impair rights of the Declarant or Builders under the Governing Documents, or interfere with development of, construction on, or marketing of any portion of the Properties, or diminish the level of services being provided by the Association. This right to disapprove is in addition to, and not in lieu of, any right to approve or disapprove specific actions of the Association, the Board or any committee as may be granted to the Class"B" Member or the Declarant in the Governing Documents. M:',RED'~O889~Penin,uIa,CCR-V3.wI~I -34- 00K 1 5 5 5 PA E 1 7 1 THE PENINSULA 13.6. Amendments. Notwithstanding any contrary provision of this Declaration, no amendment to or modification of any use restrictions, rules or Design Guidelines made after termination of the Class "B" membership shall be effective during the Development Period without prior notice to and the written consent of Declarant. This Article may not be amended without the written consent of the Declarant. The rights contained in this Article shall terminate upon the earlier of (a) January 1, 2011, or (b) upon recording by Declarant of a written statement that all sales activity has ceased. ARTICLE 14. GENERAL PROVISIONS 14.1. Duration. (a) Unless terminated as provided in this Section or unless otherwise limited by Georgia law, this Declaration shall have perpetual duration. If Georgia law hereafter limits the period during which covenants may run with the land, then, unless terminated as provided herein or, if such termination method is not consistent with Georgia law, in such other manner as required by Georgia law, this Declaration shall automatically be extended at the expiration of such period for successive periods of twenty (20) years each. Notwithstanding the above, 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. (b) Unless otherwise provided by Georgia law, this Declaration may be terminated within the first twenty (20) years after the Effective Date by an instrument signed by Owners of at least ninety percent (90%) of the total Units within the Properties, which instrument shall have been recorded in the Public Records; provided, however, regardless of the provisions of Georgia law, this Declaration may not be terminated during the Development Period without the prior written consent of the Declarant. After twenty (20) years from the Effective Date, this Declaration may be terminated only by an instrument signed by a Majority of Owners of the Units and constituting a Majority of the total number of Owners, and by the Declarant1 if the Declarant owns any portion of the Properties, which instrument complies with the requirements of O.CG.A. §44-5-60(d) and is recorded in the Public Records. (c) Nothing in this Section shall be construed to permit termination of any easement created in this Declaration without the consent of the holder of such easement. 14.2. Amendment. (a) By Declarant. Until termination of the Class "B" Membership, Declarant may unilaterally amend this Declaration for any purpose. Thereafter, the Declarant may unilaterally amend this Declaration at any time and from time to time if such amendment is necessary (i) to bring any provision into compliance with any applicable governmental statute, rule, regulation, or judicial determination; (ii) to enable any reputable title insurance company to issue title insurance coverage on the Units; (iii) to enable any institutional or governmental lender, purchaser, insurer or guarantor of Mortgage loans, including for example, the Federal National Mortgage Association, or Federal Home Loan Mortgage Corporation, to make, purchase, insure or guarantee Mortgage loans on the Units; or (iv) to satisfy the requirements of any local, state or federal governmental agency. However, any such amendment shall not adversely affect the title to any Unit unless the Owner shall consent in writing. In addition, during the Development Period, Declarant may unilaterally amend this Declaration for any other purpose, provided the amendment has no material adverse effect upon any right of any Owner. (b) By the Board. The Board shall be authorized to amend this Declaration without the consent of the Members (i) for the purpose of submitting the Properties to the Georgia Property Owners' Association THE PENINSULA Act, O.C.G.A. §44-3-220, et seq. (1994) and conforming this Declaration to any mandatory provisions thereof, and (ii) to correct scrivener's errors and other mistakes of fact, provided that amendments under this provision have no material adverse effect on the rights of Owners. During the Development Period, any such amendments shall require the written consent of the Declarant. (c) By Members. Except as otherwise specifically provided above and elsewhere in this Declaration, this Declaration may be amended only by the written consent in recordable form of Members holding at least sixty-seven percent (67%) of the total Class"A" votes in the Association, including sixty-seven percent (67%) of the Class "A" votes held by Members other than the Declarant, and during the Development Period, the written consent of the Declarant. Notwithstanding the above, the percentage of votes necessary to amend a specific clause shall not be less than the prescribed percentage of affirmative votes required for action to be taken under that clause. (d) Validity and Effective Date. Any amendment to the Declaration shall become effective upon recording in the Public Records, unless a later effective date is specified in the amendment. Any procedural challenge to an amendment must be made within six (6) months of its recordation or such amendment shall be presumed to have been validly adopted. In no event shall a change of conditions or circumstances operate to amend any provisions of this Declaration. No amendment may remove, revoke, or modify any right or privilege of the Declarant or the Class "B" Member without the written consent of the Declarant, the Class "B" Member, or the assignee of such right or privilege. If an Owner consents to any amendment to this Declaration or the By-Laws, it will be conclusively presumed that such Owner has the authority to consent, and no contrary provision in any Mortgage or contract between the Owner and a third party will affect the validity of such amendment. 14.3. Severability. Invalidation of any provision of this Declaration, in whole or in part, or any application of a provision of this Declaration by judgment or court order shall in no way affect other provisions or applications. 14.4. Non-Merqer. Notwithstanding the fact that Declarant is the current owner of the Properties, it is the express intention of Declarant that the easements herein established for the benefit of the Properties and Owners shall not merge into the fee simple estate of individual lots conveyed by Declarant or its successor, but that the estates of the Declarant and individual lot owners shall remain as separate and distinct estates. Any conveyance of all or a portion of the Properties shall be subject to the terms and provisions of this Declaration, regardless of whether the instrument of conveyance refers to this Declaration. 14.5. Grants. The parties hereby declare that this Declaration, and the easements created hereunder shall be and constitute covenants running with the fee simple estate of the Properties. The grants and rese~ations of easements in this Declaration are independent of any covenants and contractual agreements undertaken by the parties in this Declaration and a breach by either party of any such covenants or contractual agreements shall not cause or result in a forfeiture or reversion of the easements granted or reserved in this Declaration. 14.6. Alternative Dispute Resolution. The Association and the Declarant intend to encourage the amicable resolution of disputes involving the Properties and to avoid the emotional and financial costs of litigation if at all possible. Accordingly, the Association, the Declarant and each Owner covenants and agrees that it shall attempt to resolve all claims, grievances or disputes involving the Properties, including, without limitation, claims, grievances or disputes arising out of or relating to the interpretation, application or enforcement of the Governing Documents through alternative dispute resolution methods, such as mediation and arbitration. To foster the amicable resolution of disputes, the Board may adopt alternative dispute resolution procedures. Participation in alternative dispute resolution procedures shall be voluntary and confidential. Should either party conclude that such discussions have become unproductive or unwarranted, then the parties may proceed with litigation. 8oo 15 5 5 1 ? 4 THE PENINSUL~ 14.7. Liti.qation. Except as provided herein, no judicial or administrative proceeding shall be commenced or prosecuted by the Association unless approved by a vote of Members holding seventy-five percent (75%) of the total Class "A" votes in the Association. This Section shall not apply, however, to (a) actions brought by the Association to enforce the provisions of this Declaration (including, without limitation, the foreclosure of liens); lb) the imposition and collection of assessments as provided in Article 8; lc) proceedings involving challenges to ad valorem taxation; (d) counterclaims brought by the Association in proceedings instituted against it; or (e) actions brought by the Association against any contractor, vendor, or supplier of goods and services arising out of a contract for services or supplies. This Section shall not be amended unless such amendment is approved by the percentage of votes, and pursuant to the same procedures, necessary to institute proceedings as provided above. 14.8. Cumulative Effect; Conflict. The provisions of this Declaration shall be cumulative with the provisions of any applicable Supplemental Declaration. The Association shall have the standing and authority to enforce the provisions of any Supplemental Declaration. 14.9. Use of the Words "The Peninsula". No Person shall use the words "The Peninsula" in any printed or promotional material without the Declarant's prior written consent. However, Owners may use the words "The Peninsula" in printed or promotional matter where such terms are used solely to specify that particular property is located within The Peninsula development and the Association shall be entitled to use the words "The Peninsula" in its name. 14.10. Compliance. Every Owner and occupant of any Unit shall comply with the Governing Documents. Failure to comply shall be grounds for an action by the Association or by any aggrieved Owner(s) to recover sums due, for damages or injunctive relief, or for any other remedy available at law or in equity, in addition to those enforcement powers granted to the Association in Section 4.4. 14.11. Notice of Sale or Transfer of Title. Any Owner desiring to sell or otherwise transfer title to his or her Unit shall give the Board at least seven (7) Days' prior written notice of the name and address of the purchaser or transferee, the date of such transfer of title, and such other information as the Board may reasonably require. The transferor shall continue to be jointly and severally responsible with the transferee for all obligations of the Owner of the Unit, including assessment obligations, until the date upon which such notice is received by the Board, notwithstanding the transfer of title. 14.12. Exhibits. Exhibit A, Exhibit B, Exhibit C and Exhibit D attached to this Declaration are incorporated by this reference. Amendment of Exhibit A and Exhibit B shall be governed by the provisions of Section 14.2. All other exhibits are attached for informational purposes and may be amended as provided therein or in the provisions of this Declaration which refer to such exhibits. THE PENINSULA IN WITNESS WHEREOF, the undersigned Declarant has executed th~s Declaration th~s~.~ ~-~ay Signed, sealed, and delivered in the presence of: Witness p /43 Notary Public (Notary Seal) DECLARANT: PEACHTREE CITY HOLDINGS, L.L.C., a Georgia limited liability company Title: ~ ~oo~ 15 5 5 P,~OE 17 5 eoo 15 5 5 17 6 THE PENINSULA EXHIBIT A Land Initially Submitted ALL THAT TRACT OR PARCEL OF LAND lying and being in Land Lots 101, 102, 123 and 124 of the 7th District, City of Peachtree City, Fayette County, Georgia, as shown on Final Subdivision Plat for The Peninsula, datedAugust31,2000, as last revised (ii~'~¢'~.~~ ~.--~ [ ,2000, byRochester&Associates, Inc., John A. Bonanno, Georgia Registered Land Surveyor No. 22929, as recorded in Plat Book ,i~-, Page i- Fayette County, Georgia Records, which plat is incorporated herein by this reference and made a part of this description. LESS AND EXCEPT any streets, rights-of way, alleys, cart paths, water courses, drains, easements, greenbelts and public places dedicated on the above-referenced plat to the City of Peachtree City. M:~R E D'~889~P enins ulat, C C R.V3.wpd THE PENINSULA EXHIBIT B Land Subject to Annexation ALL THAT TRACT OR PARCEL OF LAND lying and being within one mile of the outer perimeter boundary of that certain tract or parcel of land more particularly described on Exhibit A hereto. M:~RED~0889~Peninsula~CC R-V3.wpd PENINSULA EXHIBIT D Exclusive Common Area ALL THAT TRACT OR PARCEL OF LAND lying and being in Land Lots 101,102 and 124 of the 7th District, City of Peachtree City, Fayette County, Georgia, shown as a 20' Access Easement on Lots 21 through and including 34 on Final Plat of The Peninsula dated August 31, 2000, as last revised ~ ~ .~,_"'~{/)~ ~.~ '~ I; .... 2000, by Rochester & Associates, Inc., John A. Bonanno, Georgia Registered Land Surveyor No. 22929, as recorded in Plat Book ~'D)z:.[_ , Page J - ~-, Yayette County, Georgia Records, which plat is incorporated herein by this reference and made a part of this description. M:~REO~0889~PeninsulatCCR-V3 wpd EXHIBIT C BY-LAWS OF THE PENINSULA COMMUNITY ASSOCIATION, INC. THE PENINSULA ~ooK 15 5 5 P~GE 17 9 M:~E D~0889\Peninsula~BYLAWS.V 1 .wpd -TABLE OF CONTENTS- THE PENINSULA Article 1. Name, Principal Office, and Definitions ........................................ 1 1.1, Name .......................................................... 1 1.2. Principal Office .................................................. 1 1.3. Definitions ...................................................... 1 Article 2. Association: 2,1. 2,2. 2,3. 2.4. 2.5. 2.6. 2.7. 2.8. 2.9. 2.10. 2.11. 2.12. 2.13. Membership, Meetings, Quorum, Voting, Proxies .................... 1 Membership ..................................................... 1 Place of Meetings ................................................ 1 Annual Meetings ................................................. 1 Special Meetings ................................................. 1 Notice of Meetings ................................................ 1 Waiver of Notice ................................................. 2 Adjournment of Meetings .......................................... 2 Voting ......................................................... 2 List for Voting ................................................... 2 Proxies ........................................................ 2 Quorum ........................................................ 2 Conduct of Meetings ............................................. 3 Action Without a Meeting .......................................... 3 Article 3. Board of Directors: Number, Powers, Meetings ................................. 3 A. Composition and Selection ................................................ 3 3.1. Governing Body; Composition ....................................... 3 3.2. Number of Directors .............................................. 3 3.3. Directors During Class "B" Membership ............................... 3 3.4. Nomination and Election Procedures ................................. 3 3.5. Election and Term of Office ......................................... 4 3.6. Removal of Directors and Vacancies ................................. 4 B. Meetings .............................................................. 4 3,7. 3.8. 3.9. 3.10. 3.11. 3.12. 3.13. 3.14. 3.15. 3.16. 3.17. Powers 3.18. 3.19. 3.20. 3.21. 3.22. 3.23. Organizational Meetings ........................................... 4 Regular Meetings ................................................ 4 Special Meetings ................................................. 4 Notice Waiver of Notice ................................................. 5 Participation in Meetings ........................................... 5 Quorum of Board of Directors ....................................... 5 Compensation ................................................... 5 Conduct of Meetings .............................................. 5 Open Meetings .................................................. 5 Action Without a Formal Meeting .................................... 6 and Duties Powers Duties ......................................................... 6 Right of Class "B" Member to Disapprove Actions ....................... 7 Management .................................................... 8 Accounts and Reports ............................................. 8 Borrowing ...................................................... 8 THE PENINSULA 3.24. Right to Contract ................................................. 8 3.25. Enforcement .................................................... 8 Article 4. Officers ................................................................... 9 4.1. Officers ........................................................ 9 4.2. Election and Term of Office ......................................... 9 4.3. Removal and Vacancies ........................................... '9 4.4. Powers and Duties ............................................... 9 4.5. Resignation .................................................... 10 4.6. Agreements, Contracts, Deeds, Leases, Checks, Etc ................... 10 4.7. Compensation .................................................. 10 Article 5. Committees .............................................................. 10 5.1. General ....................................................... 10 5.2. Covenants Committee ............................................ 10 Article 6, Miscellaneous ............................................................ 10 6.1. Fiscal Year .................................................... 10 6.2. Parliamentary Rules ............................................. 10 6.3. Conflicts ....................................................... 10 6.4. Books and Records .............................................. 10 6.5. Notices ....................................................... 11 6.6. Amendment .................................................... 11 15 5; 5P 0E ] 81 M:tREDt0889\Peninsula\BYLAWS-V 1 wpd -ii- ooK 15 5 5 P GE ] 8 2 THE PENINSULA BY-LAWS OF THE PENINSULA COMMUNITY ASSOCIATION, INC. Article 1. Name, Principal Office, and Definitions 1.1. Name. The name of the corporation is The Peninsula Community Association, Inc. (the "Association"), a Georgia non-profit corporation. 1.2. Principal Office. The principal office of the Association shall be located in Fayette County, Georgia. The Association may have such other offices, either within or outside the State of Georgia, as the Board of Directors may determine or as the affairs of the Association may require. 1.3. Definitions. The words used in these By-Laws shall be given their normal, commonly understood definitions. Capitalized terms shall have the same meaning as set forth in that Declaration of Covenants, Conditions, and Restrictions for The Peninsula filed in the Public Records, as it may be amended (the "Declaration"), unless the context indicates otherwise. Article 2. Association: Membership, Meetings, Quorum, Voting, Proxies 2.1. Membership. The Association shall have two (2) classes of membership, Class "A" and Class "B," as more fully set forth in the Declaration, the terms of which pertaining to membership are incorporated by this reference. 2.2. Place of Meetinqs. Meetings of the Association shall be held at the principal office of the Association or at such other suitable place convenient to the Members as the Board may designate, either within the Properties or as is convenient as possible and practical. Meeting may be held by means of a telephone conference, video conference or similar means of communication by which all persons participating in the meeting can converse with each other. Participation by one of these methods shall constitute presence in person at such meeting. 2.3. Annual Meetin,qs. The first meeting of the Association, whether a regular or special meeting, shall be held within one (1) year from the date of incorporation of the Association. Subsequent regular meetings shall be held annually on a date and at a time set by the Board. 2.4. Special Meetin.qs. The President of the Association may call special meetings. In addition, the President shall have the duty to call a special meeting within thirty (30) Days if so directed by resolution of the Board or upon a petition signed by Members representing at least twenty percent (20%) of the Class "A" votes in the Association, or upon written request of the Declarant. 2.5. Notice of Meetings. (a) Written notice stating the place, day, purpose, and time of any meeting of the Members shall be delivered to each Member entitled to vote at such meeting, not less than ten (10) nor more than fifty (50) Days before the date of such meeting, by or at the direction of the President or the Secretary or the officers or persons calling the meeting. (b) No business shall be transacted at a meeting except as stated in the notice; provided that, if Members holding at least twenty percent (20%) of the Class "A" votes are present at an annual meeting, in M:\RE D\0889\Peninsula\BYLAWS-V 1 .wpd THE PENINSULA person, or by proxy, matters in addition to those set forth in the notice of the meeting may be voted upon without further notice to the Members. 2.6. Waiver of Notice. Waiver of notice of a meeting of the Association shall be deemed the equivalent of proper notice. Any Member may, in writing, waive notice of any meeting of the Association, either before or after such meeting. Attendance at a meeting shall be deemed waiver of any objection as to notice of the time, date, and place thereof, unless specific objection as to the lack of proper notice is made at the time the meeting is called to order. Attendance at a also shall be deemed waiver of notice of all business transacted at such meeting unless an objection on the basis of lack of proper notice is raised before the business is put to a vote. 2.7. Adjournment of Meetinqs. If any meeting of the Association cannot be held because a quorum is not present, Members or their proxies holding a Majority of the votes represented at such meeting may adjourn the meeting to a time not less than five (5) nor more than thirty (30) Days from the time the original meeting was called. At the reconvened meeting, if a quorum is present, any business may be transacted which might have been transacted at the meeting originally called. If a time and place for reconvening the meeting is not set by those in attendance at the original meeting or if for any reason a new date is set for reconvening the meeting after adjournment, notice for reconvening the meeting shall be given to Members in the manner prescribed in Section 2.5. 2.8. Votinq. The voting rights of the Members shall be as set forth in the Declaration and in these By-Laws, and such voting rights provisions are specifically incorporated by this reference. The Board may adopt policies and procedures regarding the methods of casting votes, such as written ballots, secret ballots, or computer access. 2.9. List for Votinq. after setting a record date for notice of a meeting, the Board of Directors shall prepare the alphabetical list of the names of the Members entitled to notice of such meeting. The list shall show the address of the Member and the number of votes each is entitled to cast at the meeting. The list for voting shall be made available for inspection in accordance with Georgia law. 2.10. Proxies. At all meetings of the Association, each Member may vote in person (if a corporation, partnership, limited liability company or trust, through any officer, director, partner, member, duly authorized manager or fiduciary duly authorized to act on behalf of the Member) or by proxy, subject to the limitations of Georgia law. All proxies shall be in writing specifying the Unit(s) for which it is given, signed by the Member or a duly authorized attorney-in-fact, dated and filed with the Secretary of the Association prior to any meeting for which it is to be effective. Unless otherwise specifically provided in the proxy, a proxy shall be presumed to cover all votes which the Member giving such proxy is entitled to cast, and in the event of any conflict between two (2) or more proxies purporting to cover the same voting rights, the later dated proxy shall prevail, or if dated as of the same date, both shall be deemed invalid. Every proxy shall be revocable and shall automatically cease upon conveyance of any Unit for which it was given, or upon receipt of notice by the Secretary of the death or judicially declared incompetence of a Member who is a natural person, or of written revocation, or eleven (11 ) months from the date of the proxy, unless a shorter period is specified in the proxy. 2.11. Quorum. (a) The presence, in person or by proxy, of Members representing twenty-five (25%) of the total Class "A" votes in the Association shall constitute a quorum at all meetings of the Association. If a quorum is present business may be conducted until adjournment, notwithstanding the withdrawal of Members leaving less than a quorum, provided that any action taken is approved by at least a Majority of the votes required to constitute a quorum. 800K 15 5 5 P OE 18 4 THE PENINSULA 2.1 2. Conduct of Meetinqs. The President shall preside over all meetings of the Association, and the Secretary shall keep the minutes of the meetings and record in a minute book all resolutions adopted and all other transactions occurring at such meetings. 2.1 3. Action Without a Meetinq. Any action required or permitted by law to be taken at a meeting of the Association may be taken without a meeting, without prior notice and without a vote, if written consent specifically authorizing the proposed action is signed by all Members entitled to vote thereon. Each consent shall be filed with the minutes of the Association, and shall have the same force and effect as a vote of the Members at a meeting. Within ten (10) Days after receiving authorization for any action by written consent, the Secretary shall give written notice to all Members summarizing the material features of the authorized action. Article 3, Board of Directors: Number, Powers, Meetings A. Composition and Selection. 3.1. Governin,q Body; Composition. The affairs of the Association shall be governed by a Board of Directors, each of whom shall have one (1) equal vote. Except with respect to directors appointed by the Class "B" Member, the directors shall be eligible Members or Residents (as hereinafter defined); provided that, no Owner and Resident representing the same Unit may serve on the Board at the same time. No Owner or Resident shall be eligible to serve as a director if any assessment for such Owner's or Resident's Unit is delinquent. A "Resident" for purposes of these By-Laws shall mean any natural person eighteen (18) years of age or older whose principal place of residence is a Unit within the Properties. In the case of a Member which is not a natural person, any officer, director, partner, member, manager, employee or fiduciary of such Member shall be eligible to serve as a director unless otherwise specified by written notice to the Association signed by such Member; provided, no Member may have more than one (1) such representative on the Board at a time, except in the case of directors appointed or serving as the representative of the Class "B" Member. 3.2. Number of Directors. The Board shall consist of three (3) directors, as provided in Sections 3.3 and 3.5 below. The number of directors may be increased by Board resolution. The initial Board shall be appointed as provided in Section 3.3. 3.3. Directors Durin,q Class "B" Membership. Subject to the provisions of Section 3.5, the directors shall be selected by the Class "B" Member acting in its sole discretion and shall serve at the pleasure of the Class "B" Member until the Class "B" membership is terminated pursuant to Section 3.2(b) of the Declaration. Directors appointed by the Class "B" Member shall not be subject to the qualifications for directors set forth in Section 3.1. 3.4. Nomination and Election Procedures. (a) Except with respect to directors selected by the Class "B" Member, directors shall be nominated from the floor at a meeting of the Association or by a nominating committee, if such committee is established by the Board of Directors. All candidates shall have a reasonable opportunity to communicate their qualifications to the Members and to solicit votes. (b) Each Owner may cast all votes assigned to such Owner's Units for each position to be filled. There shall be no cumulative voting. That number of candidates equal to the number of positions to be filled receiving the greatest number of votes shall be elected. Directors may be elected to serve any number of consecutive terms. M:\RED\0889~PeninsulalBYLAWS-V 1 .wpd -3- THE PENINSULA 3.5. Election and Term of Office. Not later than the first annual meeting after the termination of the Class "B" membership, the Association shall hold an election at which the Class "A" Members shall elect all three (3) directors. Each director shall be elected for a term of one (1) year. 3.6. Removal of Directors and Vacancies. (a) Any director elected by the Class "A" Members may be removed, with or without cause, by Members holding two-thirds (2/3) of the votes entitled to be cast for the election of such director. Any director whose removal is sought shall be given notice prior to any meeting called for that purpose. Upon removal of a director, a successor shall be elected by the Class "A" Members to fill the vacancy for the remainder of the term of such director. (c) Any director elected by the Class "A" Members who has three (3) or more consecutive unexcused absences from Board meetings, or who is more than thirty (30) Days delinquent (or is the Resident of a Unit that is delinquent or is the representative of a Member who is delinquent) in the payment of any assessment or other charge due the Association, may be removed by a Majority of the directors, and the Board may appoint a successor to fill the vacancy until the next annual meeting, at which time the Class "A' Members shall elect a successor for the remainder of the term. (d) In the event of the death, disability, or resignation of a director elected by the Class "A" Members, or the adoption of a Board resolution increasing the number of directors, the Board may declare a vacancy and appoint a successor to fill the vacancy until the next annual meeting, at which time the Class "A" Members shall elect a successor for the remainder of the term. (e) This Section shall not apply to directors appointed by the Class "B" Member. The Class "B" Member shall be entitled to appoint a successor to fill any vacancy on the Board resulting from the death, disability or resignation of a director appointed by or elected as a representative of the Class "B" Member. B. Meetin,qs. 3.7. Orqanizationa Meetinqs. Within thirty (30) Days after the election of appointment of new directors, the Board shall hold an organizational meeting at such time and place as the Board shall set. 3.8. Regular Meetinqs. Regular meetings of the Board may be held at such time and place as a Majority of the directors shall determine, but at least one (1) such meeting shall be held during each quarter. 3.9. Special Meetinqs. Special meetings of the Board of Directors shall be held when called by written notice signed by the President or by any two (2) directors. 3.10. Notice. Notice of a regular meeting shall be communicated to directors not less than four (4) Days prior to the meeting. Notice of a special meeting shall be communicated to directors not less than seventy-two (72) hours prior to the meeting. No notice need be given to any director who has signed a waiver of notice or a written consent to holding of the meeting. The notice shall specify the time and place of the meeting and, in the case of a special meeting, the nature of any special business to be considered. Notices shall be given to each director by: (a) personal delivery; (b) first class mail, postage prepaid; (c) telephone communication, either directly to the director or to a person at the director's office or home who would reasonably be expected to communicate such notice promptly to the director; (d) telecopier transmission to the director's home or office, with confirmation of receipt by the receiving telecopier; (e) telegram, charges prepaid; (f) overnight or same day delivery service, charges prepaid; or (g) electronic mail or e-mail using Internet-accessible equipment and services if the director has consented in writing to such method of delivery M:~REO\O889\Peninsula\BY LAWS-VI .wpd -4- THE PENINSULA and has provided the Board with an electronic mail or e-mail address. All such notices shall be given at the director's telephone or telecopier number or sent to the director's address or e-mail address as shown on the records of the Association. Notices sent by first class mail shall be deemed communicated when deposited into a United States mailbox. Notices given by personal overnight or courier delivery, telephone, telecopier, telegraph, or e-mail shall be deemed communicated when delivered, telephoned, telecopied, given to the telegraph company, or sent via e-mail. 3.11. Waiver of Notice. The transactions of any meeting of the Board, however called and noticed or wherever held, shall be as valid as though taken at a meeting duly held after regular call and notice if (a) a quorum is present, and (b) either before or after the meeting each of the directors not present signs a written waiver of notice, a consent to holding the meeting, or an approval of the minutes. The waiver of notice or consent need not specify the purpose of the meeting. Notice of a meeting also shall be deemed given to any director who attends the meeting without protesting before or at its commencement about the lack of adequate notice. 3.12. Participation in Meetinqs. Members of the Board or any committee designated by the Board may participate in a meeting of the Board or committee by means of telephone or video conference or similar communications equipment, by means of which all persons participating in the meeting can converse with each other. Participation in a meeting pursuant to this subsection shall constitute presence in person at such meeting. 3.13. Quorum of Board of Directors. At all meetings of the Board, a Majority of the directors shall constitute a quorum for the transaction of business, and the votes of a Majority of the directors present at a meeting at which a quorum is present shall constitute the decision of the Board, unless otherwise specifically provided in these By-Laws or the Declaration. A meeting at which a quorum is initially present may continue to transact business, notwithstanding the withdrawal of directors, if any action taken is approved by at least a Majority of the required quorum for that meeting. If any meeting of the Board cannot be held because a quorum is not present, a Majority of the directors present at such meeting may adjourn the meeting to a time not less than five (5) nor more than thirty (30) Days from the date of the original meeting. At the reconvened meeting, if a quorum is present, any business which might have been transacted at the meeting originally called may be transacted without further notice. 3.14. Compensation, Directors shall not receive any compensation from the Association for acting as such unless approved by Members representing a Majority of the total Class "A" votes in the Association at a regular or special meeting of the Association. Any director may be reimbursed for expenses incurred on behalf of the Association upon approval of a Majority of the other directors. Nothing herein shall prohibit the Association from compensating a director, or any entity with which a director is affiliated, for services or supplies furnished to the Association in a capacity other than as a director pursuant to a contract or agreement with the Association, provided that such director's interest was made known to the Board prior to entering into such contract and such contract was approved by a Majority of the Board of Directors, excluding the interested director, 3.1 5. Conduct of Meetinqs. The President shall preside over all meetings of the Board, and the Secretary shall keep a minute book of Board meetings recording all Board resolutions and all transactions and proceedings occurring at such meetings. In case of a tie vote on a motion or resolution before the Board, the motion or resolution is considered lost. 3.16. Open Meetinqs. Subject to the provisions of Section 3.17, all meetings of the Board shall be open to all Members, but Members other than directors may not participate in any discussion or deliberation unless permission to speak is requested on a Member's behalf by a director. In such case, the President may THE PENINSULA limit the time any Member may speak. Notwithstanding the above, the President may adjourn any meeting of the Board, reconvene in executive session, and exclude persons other than directors to discuss matters of a sensitive nature. 3.1 7. Action Without a Formal Meeting. 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, is signed by all of the directors, and such consent sha~ have the same force and effect as a unanimous vote. C. Powers and Duties. 3.18. Powers. The Board of Directors shall have all of the powers and duties necessary for the administration of the Association's affairs and for performing all responsibilities and exercising all rights of the Association as set forth in the Governing Documents and as provided by law. The Board may do or cause to be done all acts and things unless the Governing Documents or Georgia law direct certain acts or things to be done and exercised exclusively by the membership. 3.1 9. Duties. The duties of the Board shall include, without limitation: (a) preparing and adopting, in accordance with the Declaration, an annual budget establishing each Owner's share of the Common Expenses; (b) levying and collecting such assessments from the Owners; (c) providing for the operation, care, upkeep, and maintenance of the Area of Common Responsibility; (d) designating, hiring, and dismissing the personnel necessary to carry out the rights and responsibilities of the Association and where appropriate, providing for the compensation of such personnel and for the purchase of equipment, supplies, and materials to be used by such personnel in the performance of their duties; (e) depositing all funds received on behalf of the Association in a bank depository which it shall approve and using such funds to operate the Association; provided, any reserve fund may be deposited, in the directors' best business judgment, in depositories other than banks; (f) making and amending rules in accordance with the Declaration; (g) required; opening of bank accounts on behalf of the Association and designating the signatories (h) contracting for repairs, additions, and improvements to or alterations of the Common Area in accordance with the Governing Documents; (i) enforcing by legal means the provisions of the Governing Documents the rutes adopted by the Board and bringing any proceedings which may be instituted on behalf of or against the Owners concerning the Association; (j) obtaining and carrying property and liability insurance and fidelity bonds, as provided in the Declaration, paying the cost thereof, and firing and adjusting claims, as appropriate; M:~REO~,0889~Peninsula\E*YLAWS-V 1 .wpd -6- (k) BOOK 1_ 5 5 PAGE paying the costs of all services rendered to the Association; 188 THE PENINSULA (I) keeping books with detailed accounts of the receipts and expenditures of the Association; (m) making available to any Owner, and the holders, insurers, and guarantors of any Mortgage on any Unit, current copies of the Governing Documents and all other books, records, and financial statements of the Association, as provided in Section 6.4; (n) permitting utility suppliers to use portions of the Common Area reasonably necessary to the ongoing development or operation of the Properties; and (o) indemnifying a director, officer or ARB or committee member, or former director, officer or ARB or committee member of the Association to the extent such indemnity is required or permitted under Georgia law, the Articles of Incorporation or the Declaration. 3.20. Ri~qht of Class "B" Member to Disapprove Actions. (a) So long as the Class "B" membership exists, the Class "B" Member shall have the right to disapprove any action, policy or program of the Association, the Board of Directors and any committee which, in the sole judgment of the Class "B" Member, would tend to impair rights of the Declarant or Builders under the Governing Documents, or interfere with development of or construction on any portion of the Properties, or diminish the level of services being provided by the Association. No action, policy or program subject to the right of disapproval set forth herein shall become effective or be implemented until and unless the requirements of the following subsections (i) and (ii) have been met. (i) The Class "B" Member shall be given written notice of all meetings and proposed actions approved at meetings (or by written consent in lieu of a meeting) of the Association, the Board of Directors or any committee. Such notice shall be given by certified mail, return receipt requested, or by personal delivery at the address the Class "B" Member has registered with the Secretary of the Association, shall comply with Section 3.10, and shall, except in the case of the regular meetings held pursuant to the By-Laws, set forth in reasonable particularity the agenda to be followed at the meeting. The Declarant may waive its right to receive notice in the same manner as provided in Section 3.11; and (ii) The Class "B" Member shall be given the opportunity at any such meeting to join in or to have its representatives or agents join in discussion from the floor of any prospective action, policy, or program which would be subject to the right of disapproval set forth herein. (b) The Class "B" Member, its representatives or agents may make its concerns, thoughts, and suggestions known to the Board and/or the members of the subject committee. The Class "B" Member, acting through any officer or director, agent or authorized representative, may exercise its right to disapprove at any time within ten (10) Days following the meeting at which such action was proposed or, in the case of any action taken by written consent in lieu ora meeting, at any time within ten (10) Days following receipt of written notice of the proposed action. No action, policy or program shall be effective or implemented if the Class "B" Member exercises its right to disapprove. This right to disapprove may be used to block proposed actions but shall not include a right to require any action or counteraction on behalf of any committee, or the Board or the Association. The Class "B" Member shall not use its right to disapprove to reduce the level of services which the Association is obligated to provide or to prevent capital repairs or any expenditure required to comply with applicable laws and regulations. M:~RED~0889\Peninsula~BYLAWS -V 1 .wpd -7 - THE PENINSULA 3.21. Manaqement. (a) The Board of Directors may employ for the Association a professional management agent or agents at such compensation as the Board may establish, to perform such duties and services as the Board shall authorize. The Board may delegate such powers as are necessary to perform the manager's assigned duties, but shall not delegate policy-making authority. The Declarant, or an affiliate of the Declarant, may be employed as managing agent or manager. (b) The Board of Directors may delegate to one (1) of its members the authority to act on behalf of the Board on all matters relating to the duties of the managing agent or manager, if any, which might arise between meetings of the Board. 3.22. Accounts and Reports. The following management standards of performance shall be followed unless the Board of Directors by resolution specifically determines otherwise: (a) employed; cash or accrual accounting, as defined by generally accepted accounting principles, shall be (b) accounting and controls should conform to generally accepted accounting principles; (c) cash accounts of the Association shall not be commingled with any other accounts; (d) no remuneration shall be accepted by the managing agent from vendors, independent contractors, or others providing goods or services to the Association, whether in the form of commissions, finder's fees, service fees, prizes, gifts, or otherwise; any item of value received shall benefit the Association; (e) any financial or other interest which the managing agent may have in any firm providing goods or services to the Association shall be disclosed promptly to the Board; and (f) an annual financial report shall be made available to all Members within one hundred twenty (120) Days after the close of the fiscal year. Such annual report may be prepared on an audited, reviewed or compiled basis, as the Board determines. 3.23. Borrowinq. The Association shall have the power to borrow money for any legal purpose; provided that, if the proposed borrowing is for the purpose of making discretionary capital improvements and the total amount of such borrowing, together with all other debt incurred within the previous twelve (12) month period, exceeds or would exceed ten percent (10%) of the budgeted gross expenses of the Association for that fiscal year, the Board shall obtain the approval of Members holding at least sixty-seven (67%) of the Class "A" votes in the Association, and while the Class "B" Membership is in effect, the Declarant. 3.24. Right to Contract. The Association shall have the right to contract with any Person for the performance of various duties and functions. This right shall include, without limitation, the right to enter into common management, operational, or other agreements with trusts, condominiums, cooperatives, or other owners or residents associations, within and outside the Properties. 3.25. Enforcement. (a) Notice. Prior to imposition of any sanction requiring compliance with the procedures as set forth in the Declaration, the Board or its delegate shall serve the alleged violator with written notice including 8oo ! 5 5 5 1 S 0 THE PENINSULA (i) the nature of the alleged violation, (ii) the proposed sanction to be imposed, (iii) a statement that the alleged violator may present a written request for a hearing to the Board or the Covenants Committee, if one has been appointed pursuant to Article 5 herein, within fifteen (1 5) Days of the notice; and (iv) a statement that the proposed sanction shall be imposed as contained in the notice unless a request for a hearing is received within fifteen (15) Days of the notice. If a timely request is not received, the sanction stated in the notice shall be imposed; provided, however, the Board or Covenants Committee may, but shall not be obligated to, suspend any proposed sanction if the violation is cured within the fifteen (15) Day period. Such suspension shall not constitute a waiver of the right to sanction future violations of the same or other provisions and rules by any Person. In the event of a continuing violation, each day the violation continues beyond the fifteen (1 5) Day period shall constitute a separate offense, and fines may be imposed on a per diem basis without further notice to the violator. In the event ora violation which recurs within one (1)year from the date of any notice hereunder, the Board or Covenants Committee may impose a sanction without further notice to the violator. (b) Hearinq. If a hearing is requested within the allotted fifteen (15) Day period, the hearing shall be held before the Covenants Committee, or if none has been appointed, then before the Board in executive session. The alleged violator shall be afforded a reasonable opportunity to be heard. Prior to the effectiveness of any sanction hereunder, proof of proper notice shall be placed in the minutes of the meeting. Such proof shall be deemed adequate if a copy of the notice, together with a statement of the date and manner of delivery, is entered by the officer, director, or agent who delivered such notice. The notice requirement shall be deemed satisfied if the alleged violator or its representative appears at the meeting. The minutes of the meeting shall contain a written statement of the results of the hearing and the sanction, if any, imposed. The Board may adopt a schedule of sanctions for violations of the Governing Documents. (c) Appeal. If a hearing is held before the Covenants Committee, the violator shall have the right to appeal the decision to the Board of Directors. To exercise this right, a written notice of appeal must be received by the manager, President, or Secretary of the Association within fifteen (1 5) Days after the date of the Covenants Committee hearing. Article 4. Officers 4.1. Officers. The officers of the Association shall be a President, Secretary, and Treasurer. The President and Secretary shall be elected from among the members of the Board; other officers may, but need not be, members of the Board. The Board may appoint such other officers, inc ud ng a Vice President, one or more Assistant Secretaries and one or more Assistant Treasurers, as it shall deem desirable, such officers to have such authority and perform such duties as the Board prescribes. Any two (2) or more offices may be held by the same person, except the offices of President and Secretary. 4.2. Election and Term of Office. The Board shall elect the officers of the Association at the first meeting of the Board following election of new directors. Officers shall serve until their successors are elected. 4.3. Removal and Vacancies. The Board may remove any officer whenever in its judgment the best interests of the Association will be served and may fill any vacancy in any office arising because of death, resignation, removal, or otherwise for the unexpired portion of the term. 4.4. Powers and Duties. The officers of the Association shall each have such powers and duties as generally pertain to their respective offices, as well as such powers and duties as may specifically be conferred or imposed by the Board of Directors. The President shall be the chief executive officer of the Association. The Treasurer shall have primary responsibility for the preparation of the budget as provided for in the Declaration and may delegate all or part of the preparation and notification duties to a finance M:\REDt,0889\Peninsula~BYLAWS-V 1 .wpd -9- THE PENINSULA committee, management agent, or both. The Secretary shall be responsible for preparing minutes of meetings of the Association and the Board, and for authenticating records of the Association. 4.5. Resignation. 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. 4.6. AC:lreements, Contracts, Deeds, Leases, Checks, Etc. All agreements, contracts, deeds, leases, checks, and other instruments of the Association shall be executed by at least two (2) officers or by such other person or persons as may be designated by Board resolution. 4.7. Compensation. Compensation of officers shall be subject to the same limitations as compensation of directors under Section 3.14. Article 5, Committees 5.1. General. The Board may appoint such committees as it deems appropriate to perform such tasks and to serve for such periods as the Board may designate by resolution. Each committee shall operate in accordance with the terms of such resolution. The committee members shall be eligible Members or Residents, provided that no Class "A" Member may have more than one (1) representative on a committee at any time. No committee appointed by the Board shall be empowered to take any affirmative action or bind the Board or the Association without the consent of the Board. 5.2. Covenants Committee. In addition to any other committees which the Board may establish pursuant to the Declarations and By-Laws, the Board may appoint a Covenants Committee consisting of at least three (3) and no more than five (5) Members. Acting in accordance with the provisions of the Declaration, these By~Laws, and resolutions the Board may adopt, the Covenants Committee, if established, shall be the hearing tribunal of the Association and shall conduct all hearings held pursuant to Section 3.25 of these By-Laws. Article 6. Miscellaneous 6.1. Fiscal Year. The fiscal year of the Association shall be the calendar year unless the Board establishes a different fiscal year by resolution. 6.2. Parliamentary Rules. Except as may be modified by Board resolution, Robert's Rules of Order Newly Revised (current edition) shall govern the conduct of Association proceedings when not in conflict with Georgia law, the Articles of Incorporation, the Declaration, or these By-Laws. 6.3. Conflicts~. If conflicts arise between the provisions of Georgia law, the Articles of Incorporation, the Declaration, and these By-Laws, the provisions of Georgia law, the Declaration, the Articles of Incorporation, and the By-Laws (in that order) shall prevail. 6.4. Books and Records. (al Inspection by Members and Mortgagees. The Board shall make available for inspection and copying by any holder, insurer or guarantor of a first Mortgage on a Unit, any Member, or the duly appointed representative of any of the foregoing, at any reasonable time, and for a purpose reasonably related to his or her interest in a Unit: the Declaration, By-Laws, and Articles of Incorporation, any amendments or -10- OOK 15 5 5 1 91 THE PENfNSULA supplements to the foregoing, the rules of the Association, and the minutes of meetings of the Members, the Board, and committees. The Board shall provide for such inspection to take place at the office of the Association or at such other place within the Properties as the Board shall designate during normal business hours. (b) Rules for Inspection. The Board may establish rules with respect to: (i) notice to be given to the custodian of the records; (ii) hours and days of the week when such an inspection may be made; and (iii) payment of the cost of reproducing copies of documents requested. (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 a copy of relevant documents at the expense of the Association. 6.5. Notices. Except as otherwise provided in the Declaration or these By-Laws, all notices, demands, bills, statements, and other communications under the Declaration or these By-Laws shall be in writing and shall be deemed to have been duly given if delivered personally or if sent by United States mail, first class postage prepaid: (a) if to a Member, at the address which the Member has designated in writing and filed with the Secretary or, if no such address has been designated, at the address of the Unit of such Member; or (b) if to the Association, the Board of Directors, or the managing agent, at the principal office of the Association or the managing agent, or at such other address as shall be designated by notice in writing to the Members pursuant to this Section. (c) If mailed, any notice shall be deemed delivered when deposited in the United States mail addressed with the postage prepaid. To increase flexibility, any Person, including the Association, may consent to or request in writing additional methods of receiving notice, including without limitation facsimile or Internet e-mail. 6.6. Amendment. (a) By Declarant. Until termination of the Class "B" membership, Declarant may unilaterally amend these By-Laws for any purpose. During the Development Period, the Declarant may unilaterally amend these By-Laws at any time and from time to time if such amendment is necessary (i) to bring any provision into compliance with any applicable governmental statute, rule, regulation, or judicial determination; (ii) to enable any reputable title insurance company to issue title insurance coverage on the Units; (iii) to enable any institutional or governmental lender, purchaser, insurer or guarantor of Mortgage loans, including, for example, the Federal National Mortgage Association or Federal Home Loan Mortgage Corporation, to make, purchase, insure or guarantee Mortgage loans on the Units; or (iv) to satisfy the requirements of any local, state, or federal governmental agency; provided that any such amendment shall not adversely affect the title to any Unit unless the Owner sha~I consent thereto in writing. In addition, during the Development Period, Declarant may unilaterally amend these By-Laws for any other purpose, provided the amendment has no material adverse effect upon any right of any Member. THE PENINSULA (b) By the Board. The Board shall be authorized to amend these By-Laws without the consent of the Members (i) for the purpose of submitting the Properties to the Georgia Property Owners' Association Act, O.C.G.A. §44-3-220, et seq. (1994) and conforming these By-Laws to any mandatory provisions thereof, and (ii) to correct scriveners' errors and other mistakes of fact; provided that amendments under this provision have no material adverse effect on the rights of the Owners. During the Development Period, any such amendments shall require the written consent of the Declarant. (c) By Members. Except as provided above, these By-Laws may be amended only by the affirmative vote or written consent, or any combination thereof, of Members holding at least sixty-seven percent (67%) of the total Class "A" votes in the Association, and, during the Development Period, the written consent of the Declarant. Notwithstanding the above, the percentage of votes necessary to amend a specific clause shall not be less than the prescribed percentage of affirmative votes required for action to be taken under that clause. (d) Validity and Effective Date. ti) Any amendment to these By-Laws shall become effective on the date of its adoption, unless a later effective date is specified therein. Any procedural challenge to an amendment must be made within six (6) months of its recordation or such amendment shall be presumed to have been validly adopted. In no event shall a change of conditions or circumstances operate to amend any provisions of these By-Laws. (ii) No amendment may remove, revoke, or modify any right or privilege of Declarant or the Class "B" Member without the written consent of Declarant, the Class "B" Member, or the assignee of such right or privilege. (e) Membership Approval. If a Member consents to any amendment to the Declaration or these By-Laws, it will be conclusively presumed that such Member has the authority to consent and no contrary provision in any Mortgage or contract between the Member and a third party will affect the validity of such amendment. M:~RED~0889~Peninsula~BYLAWS-V 1.wpd - 1 2-