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Wilshire EstatesDECLARATION OF COVENANTS, CONDITIONS, AND RESTRICTIONS FOR WILSHIRE ESTATES Upon recording, please return to: Lon Grayston Bryant, Esq. Centex Homes 1225 Northmeadow Parkway Suite 120 Roswell, GA 30076 G:\Lon\ Dcclarations\Wilshir~\cc tv4. rrm - GEORGIA, FAYETTE COUNTY Filed and Recorded this ~/'/'- day ,f ~ c..,z-, ~ ~_q.~. .a. Book,, , Pale · Clerk TABLE OF CONTENTS ;.:. SECTION PAGE PREAMBLE ................................................... I 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. DEFINITIONS ......................................... 1 "Additional Property" . .................................... 1 "ARB" ............................................... 1 "Architectural Standards" .................................. 2 "Area of Common Responsibility" . ............................ 2 "Articles of Incorporation" or "Articles". ........................ 2 "Association" . ......................................... 2 "Board of Directors" or "Board" ...- ............................ 2 "Builder" . ............................................ 2 "By-Laws" . ........................................... 2 "Class "B" Control Period" . ................................ 2 "Common Property" ...................................... 2 "Common Expenses" . ............... : ................ ' ....2 "Community-Wide Standard" . ............................... 2 "Cost Sharing Agreement" .................................. 3 "Days ............................................... 3 "Declarant". ........................................... 3 "Development" . ........................................ 3 "Development Period" . ................................... 3 "General Assessment" . .................................... 3 "Governing Documents" ................................... 3 "Homesite" . ........................................... 4 "Majority" . ........................................... 4 "Member" . ........................................... 4 "Mortgage" . ........................................... 4 "Mortgagee" ........................................... 4 "Owner" . ............................................ 4 "Person" ............................................. 4 "Plan of Development" . ................................... 4 "Properties" . .......................................... 4 "Public Records" . ....................................... 4 "Special Assessment" ..................................... 5 "Specific Assessment" . .................................... 5 "Supplemental Declaration" . ................................ 5 G:\LmfiDcclarations\Wilshirc~ccrv4 rrm- ARTICLE 2: 2.1. 2.2. PLAN OF DEVELOPMENT ............................... 5 General Plan ........................... :. ................ 5 Future Development ...................................... 5 ARTICLE 3: 3.1. 3.2. 3.3. 3.4. 3.5. 3.6. 3.7. 3.8. 3.9. 3.10. COMMON PROPERTY ................................... 5 General ............................................... 5 Property Rights ......................................... 5 Acceptance by the Association ............................... 7 Issuance of Certificate of Occupancy ........................... 7 Reconveyance of Common Property ............................ 7 Use and Enjoyment of the Common Property ...................... 7 Right to Revise the Easements ............................... 8 Actions Requiring Owner Approval ............................ 8 No Partition ........................................... 9 Condemnation .......................................... 9 ARTICLE 4: 4.1. 4.2. MEMBERSHIP AND VOTING RIGHTS ....................... 9 Membership ............................................ 9 Voting ............................................... 9 ARTICLE 5: 5.1. 5.2. 5.3. 5.4. 5.5. 5.6. 5.7. RIGHTS AND OBLIGATIONS OF THE ASSOCIATION .......... 10 Function of Association ................................... 10 Personal Property and Real Property for Common Use ............... 10 Enforcement .......................................... 11 Implied Rights; Board Authority ............................. 12 Indemnification ......................................... 12 Dedication of or Grant of Easements on Common Property ............ 13 Security ............................................. 13 ARTICLE 6: 6.1. 6.2. 6.3. 6.4. MAINTENANCE .............. ' ........................ 13 Association's Responsibility ................................ 13 Owner's Responsibility ................................... 15 Standard of Performance ................... ' ................ 16 Cost Sharing Agreements .................................. 16 ARTICLE 7: 7.1. 7.2. INSURANCE AND CASUALTY LOSSES ..................... 16 Association Insurance .................................... 16 Owners' Insurance ...................................... 19 ARTICLE 8: 8.1. 8.2. 8.3. ANNEXATION AND WITHDRAWAL OF PROPERTY ........... 19 Annexation by Declarant .................................. 19 Annexation by Membership ................................. 20 Withdrawal of Property ................................... 20 Gr\t,onX Dcclara~ions\Wilshire~ccrv4. rrm - ii 8.4. ARTICLE 9: 9.1. 9.2. 9.3. 9.4. 9.5. 9.6. 9.7. 9.8. 9.9. 9.10. Additional Covenants and Easements .......................... 20 Amendment ............................. ,: ............... 20 ASSESSMENTS ....................................... 21 Creation of Assessments ................................... 21 Computation of General Assessments .......................... 22 Special Assessments ..................................... 23 Specific Assessments ..................................... 23 Lien for Assessments ..................................... 24 Date of Commencement of Assessments ........................ 24 Failure to Assess ........................................ 25 Exempt Property ........................................ 25 Capitalization of Association ................................ 25 Contributions by Declarant ................................. 25 ARTICLE 10.1. 10.2. 10.3. 10.4. 10.5. 10.6. 10.7. 10:ARCHITECTIJRAL STANDARDS .................. : ....... . 26 General .............................................. 26 Guidelines and Procedures ................................. 26 Regulated Structures and Other Matters Concerning Enforcement ....... 28 No Waiver of Future Approvals .............................. 30 Variance ............................................. 30 Limitation of Liability .................................... 30 Enforcement .......................................... 30 ARTICLE 11.1. 11.2. 11.3. 11.4. 11.5. 11.6. 11.7. 11.8. 11.9. 11.10. 11.11. 11.12. 11.13. 11.14. 11.15. 11.16. 11.17. 11.18. Il:USE RESTRICTIONS .................................. 31 General ............................................. 31 Rules and Regulations .................................... 31 Occupants Bound ....................................... 32 Leasing ............................................. 32 Residential Use ........................................ 32 Occupancy of Unfinished Homesites .......................... 33 Vehicles ............................................. 33 Parking ............................................. 33 Use of Common Property ................................. 34 Animals and Pets ....................................... 34 Nuisance ............................................ 34 Storage of Materials, Garbage, Dumping, Etc ..................... 35 Combustible Liquid ..................................... 35 Guns ............................................... 35 Subdivision of Homesite .................................. 35 Sight Distance at Intersections .............................. 36 Drainage and Grading .................................... 36 Irrigation ............................................ 37 G :\Lon\ Declaralions\ W ilshire~c c ¢v4. rrm - iii 11.19. Streams ............................................. 37 ARTICLE 12:EASEMENTS 12.1. 12.2. 12.3. 12.4. 12.5. 12.6. 12.7. 12.8. 12.9. Easements of Encroachment ................................ 37 Easements for Utilities, Etc ................................. 37 Easements to Serve Additional Property ......................... 38 Easement for Entry ...................................... .38 Easements for Maintenance and Enforcement ..................... 39 Lateral Support ........................................ 39 Easement for Special Events ................................ 39 Easement for Greenbelt Maintenance .......................... 40 Liability for Use of Easements .............................. 40 ARTICLE 13:MORTGAGEE PROVISIONS ............................. 40 13.1. 13.2. 13.3. 13.4. 13.5. 13.6. 13.7. 13.8. Notices of Action ....................................... 40 Right to Records ........................................ 41 No Priority ........................................... 41 Notice to Association ..................................... 41 Amendment by Board ........................... ' ......... 41 HUD/VA Approval ....................................... 42 Failure of Mortgagee to Respond ............................. 42 Construction of Article 12 .................................. 42 ARTICLE 14:DECLARANT'S RIGHTS ................................ 42 14.1. Transfer or Assignment ................................... 42 14.2. Development and Sales .................................... 42 14.3. Common Properties ..................................... 43 14.4. Application of Architectural Standards ......................... 44 14.5. Additional Covenants ..................................... 44 14.6. Right of Class "B" Member to Disapprove Actions ................. 44 14.7. Amendments .......................................... 45 ARTICLE 15:GENERAL PROVISIONS ......................... : ...... 45 15.1. 15.2. 15.3. 15.4. 15.5. 15.6. 15.7. 15.8. 15.9. 15.10. Duration ............................................. 45 Amendment ........................................... 45 Severability ........................................... 47 Dispute Resolution ...................................... 47 Litigation ............................................ 47 Non-Merger .......................................... 47 Grants .............................................. 47 Cumulative Effect; Conflict ................................. 48 Use of the Words "Wilshire Estates". .......................... 48 Compliance ........................................... 48 , iv G :\ Lon ,Declaralions\Wilshire\¢crv4. rrm 4 Exhibit 15.11. Notice of Sale or Tran.qfer of Title ............................ 48 15.12. Exhibits. : :: ............... 48 TABLE OF EXI-IIRITS Sub_iect Matter Land Initially Submitted Additional Property G:\ Lon\ Dcclarations\Wilshirc\cc tv4, rrm - V DECLARATION OF COVENANTS, CONDITIONS, AND RESTRICTIONS :? FOR WH SHIRE ESTATES THIS DECLARATION OF COVENANTS, CONDITIONS, AND RESTRICTIONS ("Declaration") is made as of the date set forth on the signature page hereof by CENTEX HOMES, a Nevada general partnership, having Centex Real Estate Corporation as its Managing General Partner (the "Declarant"). Declarant is the owner of the real property described on Exhibit "A," which is attached and incorporated herein by reference. This Declaration imposes upon the Properties 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 Property. In furtherance of such plan, this Declaration provides for the creation of Wilshire Estates Community Association, Inc. to own, operate and maintain Common Properties and to administer and enforce the provisions of this Declaration, the By-Laws, and the Architectural Standards (capitalized terms are defined in Article 1 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 propert~y 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. ARTICLE 1: DEFINITIONS The terms in this Declaration and the exhibits to this Declaration 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 Section 10. G \l.on'~Declarations\Wilshire'ccrv4 rrm - 1.3. "Architectural Standards": The design, architectural and construction guidelines and application and review procedures applicable to all or any portioR, of the Properties which may be promulgated and administered pursuant to Article 9. 1.4. "Area of Common Responsibility": The Common Property, together with those areas, if any, for which the Association has or assumes responsibility. 1.5. "Articles of Incorporation" or "Articles": The Articles of Incorporation of Wilshire Estates Community Association, Inc., as filed with the Secretary of State of the State of Georgia. 1.6. "Association": Wilshire Estates Community Association, Inc., a Georgia nonprofit corporation, its successors or assigns. 1.7. "Board of Directors" or "Board": The body responsible for administration of the Association, selected as provided in the By-Laws and serving as the board of directors under Georgia corporate law. 1.8. "Builder": Any Person who purchases one (1) or more Homesites for the purpose of constructing improvements for later sale to consumers or who purchases one (I) 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 Homesite for residential purposes shall cease to be considered a Builder with respect to such Homesite immediately upon occupancy of the Homesite for residential purposes, notwithstanding that such Person originally purchased the Homesite for the purpose of constructing improvements for later sale to consumers. 1.9. "By-Laws": The By-Laws of Wilshire Estates Community Association, Inc., as they may be amended. 1.10. "Class "B" Control Period": The period of time during which the Class "B" Member is entitled to appoint a Majority of the members of the Board of Directors as provided in Section 4.2. 1.11. "Common Property": All real and personal property, including easements and licenses, which the Association owns, leases or holds possessory or use rights in for the common use and enjoyment of the Owners. 1.12. "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. 1.13. "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. .:. 1.14. "Cost Sharin~ Aereement": Any agreement, contract or covenant between the Association and an owner or operator of property adjacent to, in the vicinity of, or within the Properties for the allocation of expenses for amenities and/or services that benefit both the Association and the owner or operator of such property. 1.15. "Days": Calendar days; provided however, if the time period by which any action required hereunder must be performed expires on a Saturday, Sunday or legal holiday, then such time period shall be automatically extended to the close of business on the next regular business day. 1.16. "Declarant": Centex Homes, a Nevada general partnership, or any successor, successor-in-title, or assign who takes title to any portion of the property described on Exhibits "A" or "B" for the purpose of development and/or sale and who is designated as the Declarant in a recorded instrument executed by the immediately preceding Declarant; provided however, there shall be only one (1) "Declarant" hereunder at any time. Centex Homes (in the event its rights as Declarant have been transferred or assigned to another party), and any other Person who subsequently transfers or assigns the rights of Declarant to another Person shall be known as a "predecessor Declarant;" and, unless otherwise agreed to in writing, shall be entitled tO the rights of a predecessor Declarant established in this Declaration. 1.17. "Development": A general term used to describe the residential community and the Properties, including the Homesites and the Common Property now, or hereafter, comprising Wilshire Estates. 1.18. "Development Period": The period of time during which (a) the Declarant owns any property which is subject to this Declaration, or (b) any Builder owns a Homesite primarily for development and/or resale that was purchased from Declarant, or (c) the Declarant has the unilateral right to annex any portion of the Additional Property to the terms of this Declaration. 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. 1.19. "General Assessment ": Assessments levied on all Homesites subject to assessment under Article 8 to fund Common Expenses for the general benefit of all Homesites, as more particularly described in Sections 9.1 and 9.3. 1.20. "Governine Documents": The Declaration, By-Laws, Articles of Incorporation, all Supplemental Declarations, all Architectural Standards, the rules of the Association, all Cost Sharing Agreements, and all additional covenants governing any portion of the Properties or any of the above, as each may be amended from time to time. G:~Lon\D¢claratio.s\Wilshire\ccrv4. rrm - 3 1.21. "Homesite": A portion of the Properties, 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.' In the case of an unplatted parcel of land, the parcel shall be deemed to be a single Homesite until such fmae as a subdivision plat is filed with respect to all or a portion of the parcel. Thereafter, the portion encompassed by such plat shall contain the number of Homesites determined as set forth in the preceding paragraph and any portion not encompassed by such plat shall continue to be treated in accordance with this Section. 1.22. "Majority": Those votes, Owners, Members, or other group, as the context may indicate, totaling more than fifty percent (50%) of the total eligible number. 1.23. "Member": A Person subject to membership in the Association pursuant to Article 4. 1.24. "Morteage": A mortgage, a deed of trust, a deed to secure debt, or any other form of security instrument affecting title to any Unit. 1.25. "Mortgagee": A beneficiary or holder ora Mortgage. 1.26. "Owner": One (1) or mom Persons who hold the record title to any Homesite, including the Declarant and any Builders, but excluding in all cases any party holding an interest merely as security for the performance of an obligation. Ifa Homesite is owned by more than one (1) Person, all such Persons shall be jointly and severally obligated to perform the responsibilities of such Owner. 1.27. "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. 1.28. "Plan of Development": The land use plan, site plan or development plan formulated for Wilshire Estates, as such plan may be amended from time to time. The current Plan of Development is set forth in Article 2, includes the property described on Exhibit "A", and the Additional Property described on Exhibit "B" that Declarant may from time to time subject to this Declaration. Inclusion of property in the Plan of Development shall not, under any cimumstances, obligate Declarant to subject such property to this Declaration, nor shall the exclusion of property described on Exhibit "B" from the Plan of Development bar its later annexation in accordance with Article 7. 1.29. "Properties": The real property described on Exhibits "A" and "B" 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. 1.30. "Public Records": The Fayette County, Georgia public records. G :\l.on\Declaracions\Wilshirc cory4 frnl - 4 1.31. "Special Assessment": Assessments levied in accordance with Section 9.6. .2- 1.32. "Specific Assessment": Assessments levied in accordance with Section 9.7. 1.33. "Supplemental Declaration": An instrument filed in the Public Records 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. ARTICLE 2: PLAN OF DEVELOPMENT 2.1. General Plan. As of the date of this Declaration, the current Plan of Development includes developing the Properties and the Additional Property as a residential community of detached, single family homes, consisting of approximately two hundred-fifty (250) Homesites. Under said Plan of Development the Properties would be developed in approximately eight (8) phases. The Development may include a swimming pool, cabana, children' s play structure, and picnic area which would be conveyed to the Association free and clear of and monetary liens. In addition, paved pathways will be constructed throughout the Development in accordance with the requirements of Peachtree City, Georgia, and may be located within the boundaries of a Homesite. Such pathways shall be accessible to the public pursuant to easements reserved therefor, and shall be considered part of the Area of Common Responsibility of the Association. Access to the Development will be obtained by way of Georgia Highway 74, a public street. Interior streets within the Development will be dedicated to Peachtree City, Georgia for public use upon completion. 2.2. Future Development. While the current Plan of Development includes developing the Additional Property, or a portion thereof, Declarant is under no obligation to do so, and Declarant may develop the Additional Property (or portions thereof), or not, as Declarant may modify the Plan of Development from time to time. Notwithstanding the foregoing, this Declaration shall create certain easements for drainage across the Additional Property for the benefit of the Homesites, and for the installation, maintenance and repair of the sewer line which services the Homesites. ARTICLE 3: COMMON PROPERTY. 3.1. General. The Association may acquire, hold, and dispose of tangible and intangible personal property and real property, subject to the provisions of Sections 3.10 and 13.6. The Declarant and its designees, with the Declarant's prior written consent, may convey to the Association improved or unimproved real estate, or interests in real estate, located within the property described in Exhibits "A" or "B" or benefitting said property, personal property, and leasehold and other property interests, including, but not limited to easements. 3.2. Property Rights. Common Property shall include all real property (together with any and all improvements now or hereafter located thereon) and all personal property, now or hereafter owned by the Association, for the common use and enjoyment of the Owners, including easements held by the Association for such purpose. Each Owner has the right to use and enjoy the Common Property to the fullest extent possible, within the guidelines..$et forth in this Declaration, and subject to such other rules and regulations governing the use of the Common Property as may be adopted by the Board of Directors. Conveyances of fee simple parcels of Common Property shall be by Limited Warranty Deed, free of all monetary liens, but subject to all matters of record and of survey. In addition to other property and interests therein which may be conveyed or granted to the Association, the Common Property shall include the following easements, each of which are granted for the benefit of the Declarant, each Owner and the Association: (a) Detention Ponds and Drainage Detention Areas. Drainage detention pond(s) (herein referred to as the "Detention Pond(s)"), and drainage easements, have been or will be established within the Properties and the Additional Property as shown on recorded subdivision plats. Said Detention Pond(s) and the drainage easements are deemed to benefit the entire Development, and are hereby declared to be perpetual and non-exclusive easements for drainage in favor of the Owners and the Association and shall be considered appurtenances to each Homesite, and shall be subject to the provisions of Article 10. Unless maintained by the City of Peachtree City and/or Fayette County, Georgia, the Association shall be responsible for maintaining the Detention Ponds in accordance with such standards as may be now or hereafter be established by said governmental authorities. (b) Entrance Features, Monuments and Landscape Easementq. Permanent and non- exclusive easements is hereby declared in favor of the Declarant, the Owners and the Association within that certain landscape easements shown on the recorded subdivision plats for the purpose of erecting and maintaining monuments, subdivision signs, privacy berms, walls, fences and other structures intended to provide an attractive atmosphere or to provide privacy to Owners within the Development. Such easements shall be located adjacent to entrances to the Development and a strip of land ten (10) feet in width along the perimeter boundaries of the Development for the installation and maintenance of a fence or fences for privacy. In addition to all of the foregoing, the Declarant hereby declares an easement to exist for the repair, maintenance and replacement of all structures and improvements placed upon the Common Properties by the Declarant and intended to benefit the Development. Such easements are declared to be for the benefit of the Declarant, the Owners and the Association. They shall be perpetual in duration and shall include the right to erect, maintain, repair,.replace and re-erect any such structures within the easement areas, and with respect to the landscape and entrance monument easements shall also include the right to plant ground covers, shrubs and trees, to tend and garden the same, and to generally landscape the area within said easements to keep them clean, attractive and uniform in appearance. All Owners taking title to any Homesite upon which such an easement lies will take title subject to the easement rights set forth herein. In addition, or alternatively, such entrance monuments and other similar improvements, may be constructed within or upon rights-of-way within or bordering the Development, in which case, such improvements shall be maintained by the Association in accordance with the Community-Wide Standards. 3.3. Acceptance by the Association. Common Property shall be accepted by the Association and thereafter shall be maintained by the Association at.i. tos expense for the benefit of its Members. Declarant shall not be required to make any improv~/nents or repairs whatsoever to property to be conveyed and accepted pursuant to this Section including, without limitation, dredging or otherwise removing silt from any lake, pond or other body of water that may be conveyed. 3.4. Issuance of Certificate of Occupancy. Notwithstanding any other provisions set forth herein, the Association further covenants and agrees that with respect to improved Common Property, issuance of a certificate of occupancy (if required) by the local governing authority shall be conclusive evidence that said property complies with all building and construction standards. Neither the Declarant nor any successor Declarant shall be responsible for compliance with any requirements prescribed by any local governing authority after the issuance of a certificate of occupancy. .. 3.5. Reconveyance of Common Property. 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. 3.6. Use and Enjoyment of the Common Property. Every Owner shall have a right and nonexclusive easement of use, access, and enjoyment in and to the Common Property, which is appurtenant to and shall pass with the title to each Homesite, subject to (a) This Declaration and all other Governing Documents; (b) Any restrictions or limitations contained in any deed conveying such property to the Association; (c) The right of the Board to adopt, amend and repeal rules regulating the use and enjoyment of the Common Property, including rules limiting the number of guests who may use the Common Property; (d) The right of the Association to rent, lease or reserve any portion of the Common Property 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; (e) The right of the Board to suspend the right of an Owner to use any recreational and social facilities within the Common Property pursuant to Section 6.3; (f) The right of the Board to impose reasonable requirements and charge reasonable admission or other use fees for the use of any facility situated upon the Common Property; (g) The right of the Board to pemfit use of any facilities situated on the Common Property by persons other than Owners, their families, lessees a..n.d guests upon payment of reasonable use fees, if any, established by the Board; (h) 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 Sections 3.10 and 13.6; (i) The right of the Association, acting through the Board, to dedicate or transfer all or any portion of the Common Property, subject to any approval requirements set forth in the Governing Documents; and (j) The right of the Declarant to conduct activities and establish facilities within the Properties as provided in Article 13. 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 Homesite shall be deemed to have assigned all such rights to the lessee of such Homesite. 3.7. Right to Revise the Easements. During such time as Declarant owns any portion of the Properties, or any Builder owns a portion of the Properties to whom Declarant has sold the same for the construction of a dwelling or dwellings thereon, the Declarant shall have the right to change the specific locations of all utility lines within the Properties (including utility lines within Common Property) and to create new easements for their use, maintenance, repair and replacement, and to create or modify easements for landscaping, fencing, planting screens and buffer zones. In the event Declarant so changes the location of a utility line, the Owner serviced by the utility shall thereafter have an easement for the maintenance, repair and replacement of the line as relocated. 3.8. Actions Requiring Owner Anproval. The conveyance or mortgaging of Common Property, except in accordance with Sections 3.2 and 13.6, shall require the prior approval of Members holding at least two-thirds (2/3) of the total Class "A" votes in the Association, including two-thirds (2/3) of the Class "A" votes held by Members other than the Declarant, if the U.S. Department of Housing and Urban Development is insuring the Mortgage on any Homesite or the U.S. Department of Veterans Affairs is guaranteeing the Mortgage on any Homesite. Notwithstanding anything to the contrary in Section 3.2 or this Section, the Association, acting through the Board, may grant easements over the Common Property for installation and maintenance of utilities and drainage facilities and for other purposes not inconsistent with the intended use of the Common Property, without the approval of the membership. 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. 3.9. No Partition. Except as permitted in this Declaration, there shall be no judicial partition of the Common Property. No Person shall seek any judicia.l, partition unless the portion of the Common Property which is the subject of such partition actioii has been removed from the provisions of this Declaration. This Section shall not prohibit the Board from acquiring and disposing of tangible personal property nor from acquiring and disposing of other real property which may or may not be subject to this Declaration. 3.10. Condemnation. The Association shall be the sole representative with respect to condemnation proceedings concerning Common Property and shall act as attorney-in-fact for all Owners in such matters. If any part of the Common Property 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 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, each Owner shall be entitled to written notice of such taking or conveyance prior to disbursement of any condemnation award or proceeds of such conveyance. The award made for such taking or proceeds of such conveyance shall be payable, to the Association. ARTICLE 4: MEMBERSHIP AND VOTING RIGHTS 4.1. Membership. Every Owner shall be a Member of the Association. There shall be only one (1) membership per Homesite. If a Homesite is owned by more than one (DPerson, all co-Owners shall share the privileges of such membership, subject to reasonable Board regulation and the restrictions on voting set forth in Section 4.2(d) and in the By-Laws. The membership rights of an Owner which is not a natural person may be exercised by any officer, director, member, manager, partner or trustee of such Owner, or by any individual designated from time to time by the Owner in a written instrument provided to the secretary of the Association. 4.2. Voting. The Association shall have two (2) classes of membership, Class "A" and Class "B." (a) Class "A". 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 Homesite in which they hold the interest required for membership under Section 4.1; provided however, there shall be only one (1) vote per Homesite and no vote shall be exercised for any property which is exempt from assessment under Section 9.8. In any situation where there is more than one (1) Owner of a Homesite, the vote for such Homesite shall be exercised as the co-Owners determine among themselves and advise the secretary of the Association in writing prior to the vote being taken. Absent such advice, the Homesite's vote shall be suspended if more than one (1) Person seeks to exercise it. (b) Class "B". The sole Class "B" Member shall be the Declarant. The rights of the Class "B" Member, including the right to approve, or withhold apgroval of, actions proposed under this Declaration, the By-Laws and the Articles, are specified fi-i the relevant sections of this Declaration, the By-Laws and the Articles. The Class "B" Member may the members of the Board of Directors during the Class "B" Control Period which shall continue until the first to occur of the following: (i) Within four (4) months after the time when seventy-five percent (75%) of the total number of Homesites permitted by the Plan of Development for the property described on Exhibits "A" and "B" have certificates of occupancy issued thereon and have been conveyed to Persons other than Builders; (ii) December 31, 2006; or (iii) when, in its discretion, the Class "B" Member so determines and voluntarily relinquishes such right. Upon tex-n~ination of the Class "B" membership, the Declarant shall be a Class "A" Member entitled to Class "A" votes for each Homesite which it owns. ARTICLE 5: RIGHTS AND OBLIGATIONS OF THE ASSOCIATION 5.1. 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 Article 10. The Association shall also be responsible for administering and enforcing the architectural standards and controls set forth in this Declaration and in the Architectural Standards. The Association shall perform its functions in accordance with the Governing Documents and the laws of the State of Georgia. 5.2. Personal Property and Real Pro_oertv for Common Use. The Association may acquire, hold, and dispose of tangible and intangible personal property and real property; subject to the provisions of Sections 3.2 and 13.6. The Declarant and its designees, with the Declarant's prior written consent, may convey to the Association improved or unimproved real estate, or interests in real estate, located within the property described in Exhibits "A" or "B," personal property and leasehold and other property interests, including but not limited to easements. 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. Declarant shall not be required to make any improvements or repairs whatsoever to property to be conveyed and accepted pursuant to this Section including, without limitation, dredging or otherwise removing silt from any lake, pond or other body of water that .may be conveyed. 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. 5.3. Enforcement. 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 the By-Laws. Such sanctions may include, without limitation: (a) imposing monetary fines which shall constitute a lien upon the Homesite of the violator (In the event that any occupant, guest or invitee of a Homesite 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.); (b) filing notices of violations in the Public Records providing record notice of any violation of the Governing Documents; (c) suspending an Owner's right to vote, provided that any such suspension shall be for the balance of the period in which said Owner shall remain in violation, breach or default, except that in the case of a violation of any use restrictions, or rules and regulations adopted by the Board relating to the use, operation and maintenance of the Common Property, the suspension may be for a period not to exceed sixty (60) days after the cure or termination of such violation; (d) suspending any Person's right to use any recreational facilities within the Common Property; provided however, nothing herein shall authorize the Board to limit ingress or egress to or from a Homesite; (e) suspending any services provided by the Association to an Owner or the Owner's Homesite if the Owner is more than thirty (30) Days delinquent in paying any assessment or other charge owed to the Association. (f) in the event any Owner is more than sixty (60) days delinquent in the payment of any assessment, notifying any or all Mortgagees having a security interest in the Owner's Homesite or Homesites that such Owner is in default in the performance of his obligations under this Declaration, and of those actions taken or proposed to be taken by the Association as a result of the default. In the event that any occupant, guest or invitee of a Homesite 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 Homesite that the violator is occupying or visiting. G:\LonXDeclarations\WilshircXccrv4 rrm- ! ! In addition, the Board, or the covenants committee if established, may elect to enforce any provision of the Governing Documents by exercising self-help (sp..e.cifically including, but not limited to, the filing of liens in the Public Records for non-paym6ht of assessments and other charges, the towing of vehicles that are in violation of parking rules, or the correction of any maintenance, construction or other violation of the Governing Documents). The Association may levy a Specific Assessment to cover all costs incurred in bringing a Homesite into compliance with the Governing Documents. The Association may also elect to enforce any provisions of the Governing Documents by suit at law or in equity to enjoin any violation or to recover monetary damages or both. 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 or remedy taken by the Association 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. 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 prevent the Association from enforcing any other covenant, restriction or rule. The Association, by contract or other agreement, may enforce county, city, state and federal ordinances, if applicable, and permit local and other governments to enforce ordinances on the Properties for the benefit of the Association and its Members. 5.4. Implied Rights; Board Authority_. The Association may exercise any right or privilege given to it expressly by this Declaration or the By-Laws, or reasonably implied from or reasonably necessary to effectuate any such right or privilege. Except as otherwise specifically provided in this Declaration, the 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. 5.5. Indemnification. The Association shall indemnify every officer, director, ARB member, and committee member against all damages, liabilities, and expenses, including reasonable attorneys fees, incurred in connection with any action, suit, or other proceeding (including settlement of any suit or proceeding, if approved by the then Board of Directors) to which he or she may be a party by reason of being or having been an officer, director, ARB member 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, ARB members and committee members shall not be liable for any mistake of judgment, negligent or otherwise, except for their own inrlividual willful misfeasance, malfeasance, misconduct, or bad faith. The officers, directors, ~ members, and 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, ARB members or committee members may also be Members of the Association). The Association shall indemnify and forever hold each such officer, director, ARB member and committee member hamdess 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, ARB member 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. 5.6. Dedication of or Grant of Easements on Common Property. The Association may dedicate or grant easements across portions of the Common Property to the City of Peachtree City, Fayette County, Georgia, or to any other local, state, or federal governmental or quasi-governmental entity, subject to such approval as may be required by Sections 3.8 and 13.6. 5.7. Security_. Each Owner and occupant of a Homesite, and their respective guests and invitees, shall be responsible for their own personal safety and the security of their property in the Properties. The Association may, but shall not be obligated to, maintain or support certain activities within the Properties designed to make the Properties safer than they otherwise might be. Neither the Association, the original Declarant, nor any successor Declarant shall in any way be considered insurers or guarantors of security within the Properties, nor shall any of them be held liable for any loss or damage by reason of failure to provide adequate security or ineffectiveness of security measures undertaken. No representation or warranty is made that any fire protection system, burglar alarm system or other security system or measure, including any mechanism or system for limiting access to the Properties, cannot be compromised or circumvented, nor that any such system or security measure undertaken will in all cases prevent loss or provide the detection or protection for which the system is designed or intended. Each Owner acknowledges, understands and covenants to inform its tenants and all occupants of its Homesite that the Association, its Board of Directors and committees, Declarant, and any successor Declarant are not insurers and that each Person using the Properties assumes all risks of personal injury and loss or damage to property, including Homesites and the contents of Homesites, resulting from acts of third parties. ARTICLE 6: MAINTENANCE 6.1. 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) all Common Property; (ii) all landscaping and other flora, parks, lak'es, ponds, structures, and improvements, including any entry features, parking areas, sidewalls, bike and pedestrian pathways/trails, and swimming pools situated upon the Common Property; (iii) all furnishings, equipment and other personal property of the Association; (iv) any landscaping and other flora, parks, bike and pedestrian pathways/trails, sidewalks, buffers, entry features, structures and improvements within public rights-of-way within or abutting the Properties or upon such other public land adjacent to the Properties as deemed necessary in the discretion of the Board; (v) such additional portions of any property included within the Area of Common Responsibility as may be dictated by this Declaration, any Supplemental Declaration, any Cost Sharing Agreement, or any contract or agreement for maintenance thereof entered into by the Association; (vi) all ponds, lakes, streams and/or wetlands located within the Properties which serve as. part of the drainage and storm water retention system for the Properties, including any retaining walls, bulkheads or dams (earthen or otherwise) retaining water therein, and any fountains, lighting, pumps, conduits, and similar equipment installed therein or used in connection therewith; and (vii) any property and facilities owned by Declarant and made available, on a temporary or pem~anent basis, for the primary use and enjoyment of the Association and its Members, such property and facilities to be identified by written notice from Declarant to the Association and to remain a part of the Area of Common Responsibility and be maintained by the Association until such time as Declarant revokes such privilege of use and enjoyment by written notice to the Association. The Association may, as a Common Expense, maintain other property and improvements which it does not own, including, without limitation, street signs, street lights, property dedicated to the public or required to be maintained by governmental authorities; 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, required or desirable to maintain in the Development-Wide Standard. (b) 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 perform required maintenance or repairs, unless Members holding sixty-seven percent (67%) of the Class "A" votes in the Association and during the Development Period the Declarant agree in writing to discontinue such operation. G :\Lon\Declarations\Wilshire~,ccrv4 rrm - 14 (c) The Association may be relieved of all or any portion of its maintenance responsibilities herein to the extent that (i) such maintenance respo~ibility is otherwise assumed by or assigned to an Owner or (ii) such property is dedicated td'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 perfomt 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. Except as provided above, 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 the Declarant. (d) Except as otherwise specifically provided herein, all costs associated with the operation, maintenance, repair and replacement of the Area of Common Responsibility shall be a Common Expense to be allocated among all Homesites 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, any recorded covenants, or any agreements with the owner(s) thereof. Notwithstanding the foregoing, the Board may, within its sole discretion, allocate the expense of maintenance, repair, and replacement which benefits one (1) or more, but less than all Homesites, as a Specific Assessment in accordance with the benefit so received by such Homesites, pursuant to Section 9.4. (e) In the event that the Association fails to properly perform its maintenance responsibilities hereunder and to comply with the Community-Wide Standard, the Declarant may, upon not less than ten (10) Days' notice and opportunity to cure such failure, cause such maintenance to be performed and in such event, shall be entitled to reimbursement from the Association for all costs incurred. 6.2. Owner's Responsibility. Each Owner shall maintain his or her Homesite, and all structures, parking areas, sprinkler and irrigation systems, landscaping and other flora, and other improvements comprising the Homesite in a manner consistent with the Community-Wide Standard and all Governing Documents, unless such maintenance responsibility is otherwise assumed by or assigned to the Association. Each Owner shall also maintain the driveway and mailbox serving his or her Homesite and all landscaping located in the right-of-way immediately adjacent to the Owner's Homesite. In addition to any other enforcement rights, if an Owner fails properly to perform his or her maintenance responsibility, the Association may perform such maintenance responsibilities and assess all costs incurred by the Association against the Homesite and the Owner in accordance with Section 9.4(b). The Association shall afford the Owner reasonable notice and an opportunity to cure the problem prior to entry, except when entry is required due to an emergency situation. 6.3, Standard of Performance. Responsibility for maintenance shall include responsibility for repair and replacement, as necessary. All maint¢.nance shall be perfomled in a manner consistent w~th the Development-W~de Standard and all Governing Documents. Neither the Association nor any Owner shall be liable for any damage or injury occurring on, or arising out of the condition of, property which such Person does not own except to the extent that it has been negligent in the perfomiance of its maintenance responsibilities. 6.4. Cost Sharing Ageements. Adjacent to or in the vicinity of the Properties, there may be certain nonresidential areas, including without limitation retail, commercial, or business areas, which are not subject to this Declaration and which are neither Homesites nor Common Property as defined in this Declaration (hereinafter "adjacent properties"). The owners of such adjacent properties shall not be Members of the Association, shall not be entitled to vote, and shall not be subject to assessment under Article 8 of this Declaration. The Association may enter into Cost Sharing Agreements with the owners or operators of portions of the adjacent properties: (a) to obligate the owners or operators of such 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 or operators of such adjacent properties and the owners within the Properties; (b) to obligate the Association to share in certain costs associated with the maintenance, repair, replacement and insuring of portions of such adjacent properties, if any, which are used by or benefit jointly the owners or operators of such adjacent properties and the owners within the Properties; and/or (c) to establish roles and regulations regarding the use of areas that benefit jointly the owners or operators of such adjacent properties and the owners within the Properties. The owners or operators of such adjacent properties shall be subject to assessment by the Association only in accordance with the provisions of such Cost Sharing Agreement(s). If the Association is obligated to share costs incurred by the owners of such adjacent properties, such payments by the Association shall constitute Common Expenses of the Association. The owners or operators of the adjacent properties shall not be subject to the restrictions contained in this Declaration except as otherwise specifically provided herein. ARTICLE 7: INSURANCE AND CASUALTY LOSSES 7.1. Association Insurance. (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 on any Area of Common Responsibility; (ii) Commercial general liability insurance on all Common Property, public ways located within the Properties, and on the Area of Common Responsibility, insuring the Association and its Members; (iii) Workers compensation insurance and employers liability insurance, if and to the extent required by law; (iv) Fidelity insurance covering all Persons responsible for handling Association funds; (v) Such additional insurance as the Board, in its best business judgment, determines advisable, which may include, without limitation, flood insurance and directors and officers liability coverage. In the event of an insured loss, the deductible shall be treated as a Common Expense and assessed against all Homesites. 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 (1) 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 Homesites pursuant to Section 9.4. (b) Policy Requirements. The Association shall arrange for an annual review of the sufficiency of insurance coverage by one (1) or more qualified Persons, at least one (1) of whom must be familiar with insurable replacement costs in the Peachtree City area. All Association policies shall provide for a certificate of insurance to be furnished to the Association and to each Member upon 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 7. l(a). (i) All insurance coverage obtained by the Board shall: (1) 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; G:\Lon\Dcclarations\Wilshir¢\ccrv4. rrm - 17 (2) be written in the name of the Association as trustee for the benefitted parties. Policies on the Common Properties shall be for the bene,fi:t of the Association and its Members; O) not be brought into contribution with insurance purchased by Owners, occupants, or their Mortgagees individually; (4) contain an inflation guard endorsement; (5) include an agreed amount endorsement, if the policy contains a co-insurance clause; (ii) In addition, the Board shall use reasonable efforts to secure insurance policies which list the Owners as additional insureds and provide: . (1) 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; (2) a waiver of the insurer's rights to repair-and reconstruct instead of paying cash; (3) an endorsement precluding cancellation, invalidation, suspension, or non-renewal by the insurer on account of any one (1) 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; (4) an endorsement excluding Owners' individual policies from consideration under any "other insurance" clause; (5) a cross liability provision; and (6) a provision vesting the. Board with the 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. (c) Damage and Destruction. In the event of any insured loss, only the Board or its duly authorized agent may file and adjust insurance claims and obtain reliable and detailed estimates of the cost of repair or reconstruction. Repair or reconstruction, as used in this subsection, means repairing or restoring the property to substantially the condition in which it existed prior to the damage, allowing for changes or improvements necessitated by changes in applicable building codes. G:\Lo~fiDeclar afians\Wilshir¢\ccrv¢. [rm - [ 8 Any damage to or destruction of the Common Property 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 decid6 within sixty (60) Days after the loss not to repair or reconstruct. No Mortgagee shall have the right to participate in the determination of whether the damage or destruction to the Common Property shall be repaired or reconstructed. If detemdned in the manner described above that the damage or destruction to the Common Property shall not be repaired or reconstructed and no alternative improvements are authorized, the affected property shall be cleared and maintained by the Association 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 Homesite. If insurance proceeds are insufficient to cover the costs of repair or reconstruction, the Board of Directors may, without a vote of the Members, levy Special Assessments to cover the shortfall. 7.2. Owners' Insurance. By virtue of taking title to a Homesite, 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 Homesite, less a reasonable deductible. Each Owner covenants and agrees to furnish proof of insurance to the Board of Directors if requested to do so. Each Owner further covenants and agrees that in the event of damage to or destruction of structures on or comprising his or her Homesite, 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, Owners shall clear the Homesite of all debris and ruins and maintain the Homesite 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 8: ANNEXATION AND WITHDRAWAL OF PROPERTY 8.1. Annexation by Declarant. Until ten (10) years after the recording of this Declaration in the Public Records, Declarant may from time to time unilaterally subject to the provisions of this Declaration all or any portion of the Additional Property. The Declarant may transfer or assign this right to annex property, provided that the transferee or assignee is the developer of at least a portion of the real property described in Exhibits "A" or "B" and that such transfer is memorialized in a written, recorded instrument executed by Declarant. Such annexation shall be accomplished by filing a Supplemental Declaration in the Public Records describing the property being annexed. Such Supplement,xt Declaration shall not require the consent of Members, but shall require the consent of the owner ~of such property, if other than Declarant. Any such annexation shall be effective upon the filing for record of such 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 Additional Property in any manner whatsoever. 8.2. Annexation by Membership. The Association may annex any real property to the provisions of this Declaration with the consent of the owner of such 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. Such annexation shall be accomplished by filing a Supplemental Declaration describing the property being annexed inthe Public Records. Any such Supplemental Declaration shall be signed by the president and the secretary of the Association, and by the owner of the annexed property, and by the Declarant, if the Declarant's consent is required. Any such annexation shall be effective upon filing unless otherwise provided therein. 8.3. Withdrawal of Property. The Declarant reserves the right to amend this Declaration during the Development Period, for the purpose of removing any portion of the Properties from the coverage of this Declaration. 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 Property, the Association shall consent to such withdrawal. 8.4. Additional Covenants. and Easements. The Declarant may unilaterally subject any portion of the Properties to additional covenants and easements, including covenants obligating the Association to maintain and insure such property on behalf of the Owners and obligating such Owners to pay the costs incurred by the Association through Specific Assessments. Such additional covenants and easements shall be set forth in a Supplemental Declaration filed either concurrently with or after the annexation of the subject property, and shall require the written consent of the owner(s) of such property, if other than the Declarant. Any such Supplemental Declaration may supplement, create exceptions to, or otherwise modify the terms of this Declaration as it applies to the subject property in order to reflect the different character and intended use of such property. 8.5. Amendment. This Article shall not be amended during the Development Period without the prior written consent of Declarant. ARTICLE 9: ASSESSMENTS 9.1. Creation of Assessments. There are hereby created' assessments for Association expenses as the Board may specifically authorize from time to time. There shall be three (3) types of assessments: (a) General Assessments as described in Section 9.3; (b) Special Assessments as described in Section 9.6; and (c) Specific Assessments as described in Section 9.7. Each Owner, by accepting a deed or entering into a recorded contract of sale for any portion of the Properties, is deemed to covenant and agree to pay these assessments. All assessments and other charges, together with interest, late charges, costs of collection, and reasonable attorneys fees, shall be a charge and continuing lien upon each Homesite against which the assessment or charge is made unffl paid, as more particularly provided in Section 9.5. Each such assessment or charge, together with interest, late charges, costs, and reasonable attorneys fees, also shall be the personal obligation of the Person who was the Owner of such Homesite at the time the assessment arose. Upon atransfer of title to a Homesite, 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 Homesite by exercising the remedies provided in its Mortgage shall be liable for unpaid assessments which accrued prior to such acquisition of title. The Association shall, upon request, furnish to any Owner liable for any type of assessment a written statement signed by an Association officer or designee setting forth whether such assessment has been paid. Such statement shall be conclusive evidence of payment. The Association may require the advance payment of a reasonable processing fee for the issuance of such statement. Assessments shall be paid in such manner and on such dates as the Board may establish, which may include discounts for early payment or similar time/price differentials. The Board may require advance payment of assessments at closing of the transfer of title to a Homesite 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. Unless the Board otherwise provides, the General Assessment shall be due and payable in advance on the first day of each fiscal year. If any Owner is .delinquent in paying any assessments or other charges levied on his or her Homesite, 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 may exempt himself or herself from liability for assessments by non-use of Common Property, abandonment of his or her Homesite, or any other means. The obligation to pay assessments is a separate and independent covenant on the part of each Owner. No diminution or abatement 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 G:\Lm6Dcclarations~Wilshircxccrv4.frm - 21 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. 9.2. 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, which may include a contribution to establish a reserve fund. General Assessments shall be levied equally against all Homesites subject to assessment and shall be set at a level which is reasonably expected to produce total income for the Association equal to the total budgeted Common Expenses, including any 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, any assessment income expected to be generated from any additional Homesites reasonably anticipated to become subject to assessment during the fiscal year, and any income expected to be generated from any Cost Sharing Agreements. Unless required as a matter of law, neither the Declarant, predecessor Declarants, nor any Builder who has purchased land from Declarant for the purpose of erecting a dwelling thereon, shall at any time be subject to any assessments. During the Class "B" Control Period, 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, which may be treated as either a contribution or an advance against future assessments due from the Declarant, or a loan, in the Declarant's discretion. Any such anticipated 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 in a written agreement between the Association and the Declarant. Notwithstanding the preceding, the full annual assessment will commence as to each Homesite owned by Declarant, predecessor Declarants, or a Builder upon its occupancy as a residence. In addition and notwithstanding anything to the contrary herein, the Declarant may contribute assessments due from it in services or materials or a combination of services and materials, rather than in money, (herein collectively called "in kind contribution"). The amount by which monetary assessments shall be decreased as a result of any in kind contribution shall be the fair market value of the contribution. The Board shall send a copy of the budget and notice of the amount of the General Assessment for the following year to each Owner at least thirty (30) Days prior to the beginning of the fiscal year for which it is to be effective. Such budget and assessment shall become effective unless disapproved at a meeting by Members holding at least sixty-seven percent (67%) of the total Class "A" votes in the Association and, during the Development Period, by the Declarant. There shall be no obligation to call a meeting for the purpose of considering the budget except on petition G:\[.,m Dcclaramms~Wilshirc\ccrv4 frei- 22 of the Members as provided for special meetings in Section 2.4 of the By-Laws, which petition must be presented to the Board within twenty (20) Days after delivery oftl~, notice of assessments. Ifa meeting is requested, assessments pursuant to such proposed budget sfihll not become effective until after such meeting is held, provided such assessments shall be retroactive to the original effective date of the budget if the budget is not disapproved at such meeting. If the proposed budget is disapproved or the Board fails for any reason to determine the budget for any year, then until such time as a budget is detemfined, the budget in effect for the immediately preceding year shall continue for the current year. In such event or if the budget proves inadequate for any reason, the Board may prepare a revised budget for the remainder of the fiscal year. The Board shall send a copy of the revised budget to each Owner at least thirty (30) Days prior to its becoming effective. The revised budget shall become effective unless disapproved in accordance with the above procedure. 9.3. Special Assessments. In addition to other authorized assessments, the Association may levy Special Assessments from time to time to cover unbudgeted expenses or expens, es in excess of those budgeted. Special Assessments shall be allocated equally among allHomesites. Any Special Assessment shall become effective unless disapproved at a meeting by Members holding at least sixty-seven percent (67%) of the total Class "A" votes and, during the Development Period, by the Declarant. There shall be no obligation to call a meeting for the purpose of corisidering any Speciai Assessment except on petition of the Members as provided for special meetings in Section 2.4 of the By-Laws, which petition must be presented to the Board within twenty (20) Days after delivery of the notice of such Special Assessment. During the Development Period any Special Assessment shall require 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 extending beyond the fiscal year in which the Special Assessment is approved. 9.4. Specific Assessments. The Association shall have the power to levy Specific Assessments against a particular Homesite or Homesites as follows: (a) to cover the costs, including overhead and administrative costs, of providing benefits, items, or services to the Homesite(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 to be offered to Owners and occupants (which might include, without limitation, landscape maintenance, janitorial service, pest control, etc.), which assessments 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; and (b) to cover costs incurred in bringing the Homesite(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 Homesite, their agents, contractors, employees, licensees, invitees, or guests. In addition, fines levied by the Association pursuant to Section 5.3 shall constitute Specific Assessments. G:\Lm~\Dcclaralions\Wilshir¢~ccrv4.fm~ - 23 9.5. Lien for Assessments. The Association shall have a lien against each Homesite to secure payment of assessments and other charges, as well as interest a!..a rate to be set by the Board (subject to the maximum interest rate limitations of Georgia law), late'dharges in such amount as the Board may establish (subject to the limitations of Georgia law), costs of collection and reasonable attorneys fees. Such 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 Co) the lien or charge of any fn~t Mortgage of record (meaning any recorded Mortgage with first priority over other Mortgages) made in good faith and for value. Such lien may be enforced by suit, judgment, and judicial or nonjudicial foreclosure. The Declarant or the Association may bid for the Homesite at the foreclosure sale and acquire, hold, lease, mortgage, and convey the Homesite. While a Homesite is owned by the Association following foreclosure: (a) no right to vote shall be exercised on its behalf; CO) no assessment shall be levied on it; and (c) each other Homesite shall be charged, in addition to its usual assessment, its pro rata share of the assessment allocated to the Homesite 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 Homesite shall not affect the assessment lien or relieve such Homesite from the lien for any subsequent assessments.. However, the sale or transfer of any Homesite pursuant to foreclosure of the first Mortgage shall extinguish the lien as to any installments of such assessments due prior to such sale or transfer. A Mortgagee or other purchaser ora Homesite who obtains title pursuant to foreclosure of the Mortgage shall not be personally liable for assessments on such Homesite due prior to such acquisition of title. Such unpaid assessments shall be deemed to be Common Expenses collectible from Owners of all Homesites subject to assessment under Section 9.2, including such acquirer, its successors and assigns. All other Persons acquiring liens or encumbrances on any Homesite 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. 9.6. Date of Commencement of Assessments. The obligation to pay assessments shall commence as to each Homesite on the date which the Homesite is conveyed to a Person other than a Builder or Declarant With respect to any Homesite owned by a Builder, assessments shall commence upon the earlier of (a) actual occupancy of such Homesite, excluding any period that such Homesite is being used exclusively as a model home. The first annual General Assessment, if any, levied on each Homesite shall be adjusted according to the time remaining in the fiscal year at the time assessments commence on the Homesite. Notwithstanding the foregoing, until such time as the Class "B" Control Period expires, Declarant shall have the right to delay the commencement of General Assessments. G:[Ltm\Dcclaratmn~\Wilshir¢\ccrv4 fnn * 24 9.7. 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 ~hch 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. 9.8. Exempt Property. The following property shall be exempt from payment of assessments: (a) All Common Property and such portions of the property owned by the Declarant as are included in the Area of Common Responsibility pursuant to Section 6.1; and (b) Any property dedicated or otherwise conveyed to and accepted by any governmental authority or public utility. . 9.9. Capitalization of Association. Upon acquisition of record title to a Homesite by the first Owner thereof other than the Declarant or a Builder or upon occupancy of a Homesite by a Person other than a Builder or Declarant, a contribution shall be made by the purchaser or occupant to the working cap!mi of the Association in an amount to be determined by the Board of Directors, but in no event less than one-sixth (1/6th) of the annual General Assessment per Homesite for that year, and no more than the full annual General Assessment per Homesite for that year. Referred to as the "Working Capital Contribution," this amount shall be in addition to, not in lieu of, the annual General Assessment and shall not be considered an advance payment of such assessment. This amount shall be collected and disbursed to the Association at closing of the purchase and sale of the Homesite to the first Owner, or if the obligation to make the capital contribution arises by virtue of occupancy of a Homesite by a Person other than a Builder or Declarant, the Working Capital Contribution shall be paid immediately upon demand by the Association. Working Capital Contributions shall be used by the Association in covering operating expenses (including, but not limited to management fees) and other expenses incurred by the Association pursuant to the Governing Documents. 9.10. Contributions by Declarant. (a) In accordance with subsection 9.2 above, the Declarant may support the Association by funding operating deficits during the Class "B" Control Period. At the sole election of Declarant, Declarant may recoup from the Association all such payments, which amounts may be paid from the operating account of the Association, or from the Working Capital Contributions collected at the sale of Homesites, but not from capital reserves. Whether or not the Declarant recoups any other deficit amounts, it is not the intention of the Declarant to forfeit refundable reserves or deposits paid by Declarant, nor to pay for deficits created by the nonpayment of assessments by an Owner or Owners. It is also not the intention of Declarant to pay for expenses which are otherwise covered in the annual budget of the Association, but which, due to the requirement of an advance payment, create temporary or seasonal deficits. Accordingly, Declarant shall be reimbursed for all amounts paid by Declarant in the funding of deficits caused by the nonpayment of.a. ssessments by an Owner or Owners which, if not sooner paid, shall be paid to Declarant at the ti/ne the unpaid assessment is collected. In addition, if not sooner paid, Declarant shall be reimbursed for any refundable deposit upon the Association's receipt of the same. (b) All deficits shall be collectible by Declarant at any time from the Working Capital Contributions or from excess funds not designated for capital reserves. The Declarant shall have the right to pursue the collection of any unpaid assessments on behalf of the Association, as well as the right to act on behalf of the Association (if necessary) in obtaining refunds of all deposits paid for by Declarant. The Board of Directors, specifically including members of the Board appointed by the Declarant, shall be authorized to execute a promissory note or notes on behalf of the Association to further evidence the obligations of the Association established herein. The failure to execute such a note shall in no way diminish the obligations created hereby. (c) In no event shall the Association's obligation to reimburse the Declarant as set forth in this Section 9.10 relieve the Declarant of the obligation to pay assessments for Homesites which are occupied as a residence in accordance with subsection 9.2 above; however, the Declarant may set off amounts due as assessments against amounts owed Declarant hereunder. (d) This Section 9.10 may only be amended with the prior written consent of the Declarant, and each Owner, by acceptance of a deed to a Homesite in the Properties, and the Association, shall be deemed to have approved of the reimbursements to Declarant required by this Section 9.10. ARTICLE 10: ARCHITECTURAL STANDARDS 10.1. General. No exterior structure or improvement, as described in Section 9.4, shall be placed, erected, installed or made upon any Homesite or adjacent to any Homesite where the purpose of the structure is to service such Homesite except in compliance with this Article, and with the prior written approval of the ARB under Section 10.2, unless exempted from the application and approval requirements pursuant to Section 10.2. This Article shall not apply to the activities of the Declarant, nor to improvements to the Common Property by or on behalf of the Association. This Article may not be amended during the Development Period without the Declarant's written consent. 10.2. Guidelines and Procedures. (a) Architectural Standards. The Declarant may, but shall not be obligated to, prepare Architectural Standards for the Properties. The Architectural Standards may contain general provisions applicable to all of the Properties, as well as specific provisions which vary according to land use and from one (1) portion of the Properties to another depending upon the location, unique G :\ L mfl Dccl~ratimls\ Wilshi*c~ cctv4 ffm - 26 characteristics, and intended use. The Architectural Standards, if promulgated and adopted, are intended to provide guidance to Owners and Builders regarding matter§ of particular concern to the ARB in considering applications hereunder, but shall not be the exclusive basis for decisions of the ARB, and compliance with the Architectural Standards does not guarantee approval of any application. Architectural Standards, if promulgated, shall be adopted by the ARB, which shall have sole and full authority to amend them. Any amendments to the Architectural Standards shall be prospective only and shall not apply to require modifications to or removal of structures previously approved once the approved construction or modification has commenced. There shall be no limitation on the scope of amendments to the Architectural Standards and the ARB is expressly authorized to amend the Architectural Standards to remove requirements previously imposed or otherwise to make the Architectural Standards less restrictive. The ARB shall make the Architectural Standards available to Owners and Builders who seek to engage in development or construction within the Properties. (b) Procedures. Plans and specifications showing the nature, kind, shape, color, size, materials, and location of all proposed structures and improvements shall be submitted to the ARB for review and approval (or disapproval). In addition, information concerning septic tank drainage fields and placement (if applicable), irrigation systems, drainage, lighting, landscaping and other features of proposed construction shall be submitted as applicable and as required by the Architectural Standards. 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 may be based solely on aesthetic considerations. Each Owner acknowledges that opinions on aesthetic matters are subjective and may vary 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 Architectural Standards unless a variance has been granted in writing by the ARB pursuant to Article 10. 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. Any Owner may remodel, paint or redecorate the interior of structures on his or her Homesite without approval. However, modifications to the interior of screened porches, patios, and similar portions of a Homesite visible from outside the structures on the Homesite shall be subject to approval. No approval shall be required to repaint the exterior ora structure in accordance with the originally approved color scheme or to rebuild in accordance with originally approved plans and specifications. 10.3. Regulated Structures and Other Matters Concerni.ng Enforcement. (a) Exterior Structures and Improvements. 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 thc 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 Declarant and the Association shall regulate antennas, satellite dishes, or any other apparatus for the transmission or reception of television, radio, satellite or other signals of any kind oply in strict compliance with all federal laws and r. egulations. (b) Specific Guidelines. In addition to the foregoing activities requiring prior approval, the following items are strictly regulated, and the ARB shall have the right, in its sole discretion, to prohibit or restrict these items within the Properties. Each Owner must strictly cpmply with the terms of this Section unless approval or waiver in writing is obtained from the ARB. The ARB may, but is not required to, adopt specific guidelines as part of the Architectural Standards or rules and regulations which address the following items. (i) Signs. No sign of any kind shall be erected by an Owner or occupant without the prior written consent of the ARB, except (1) such signs as may be required by legal proceedings; and (2) not more than one (1) professional security sign of such size deemed reasonable by the ARB in its sole discretion. Unless in compliance with this Section, no signs shall be posted or erected by any Owner or occupant within any portion of the Properties, including the Common Property, any Homesite, any structure or dwelling located on the Common Property or any Homesite (if such sign would be visible from the exterior of such structure or dwelling as determined in the ARB's sole discretion). The Declarant and the ARB reserve the right to prohibit signs and to restrict the size, content, color, lettering, design and placement of any approved signs. All signs must be professionally prepared. This provision shall not apply to entry, directional, or other signs installed by the Declarant or its duly authorized agent as may be necessary or convenient for the marketing and development of the Properties. (ii) Exterior Lighting. Except as approve by the ARB, exterior lighting visible from the street shall not be permitted except for: (1) approved lighting as originally installed on a Homesite; (2) street lights in conformity with an established street lighting program for the G:[Lml\Dcclarations\Wilshir¢\ccrv4. rrm - 28 Properties; (3) seasonal decorative lights during the usual and common season; or (4) front house illumination of model homes. (iii) Temporary_ or Detached Structures. Except as may be permitted by the ARB during initial construction, no temporary house, dwelling, garage or outbuilding shall be placed or erected on any Homesite. Except as provided in Section 11.7, no mobile home, trailer home, travel trailer, camper or recreational vehicle shall be stored, parked or otherwise allowed to be placed on a Homesite as a temporary or permanent dwelling. (iv) Accessory Structures. Accessory structures may only be placed on a Homesite with the prior approval of the ARB and in compliance with governing building codes. Any such accessory structures shall conform in exterior design and quality to the dwelling on the Homesite. (v) Fences. No fencing ofa Homesi~e will be allowed which is not in compliance with the Code of Ordinances of. the City of Peachtree City, any other governing authority, and further must be approved by the ARB. (vi) Window Treatments. Unless otherwise approved in writing by the ARB, all windows on any structure or dwelling shall have window treatments. The ARB may establish requirements for the color or colors to be used on window treatments visible from outside such structure or dwelling. (vii) Tree Removal. No trees that are more than six (6) inches in diameter at a point two (2) feet above the ground shall be removed without the prior written consent of the ARB; provided however, any trees, regardless of their diameter, that are located within ten (10) feet of a drainage area, a sidewalk, a residence, or a driveway, or any diseased or dead trees needing to be removed to promote the growth of other trees or for safety reasons may be removed without the written consent of the ARB. The ARB may adopt or impose requirements for, or condition approval of, tree removal upon the replacement of any tree removed. Further, tree removal is subject to compliance with the Code of Ordinances of the City of Peachtree City, Georgia, and the evidence of such approval must accompany any request made to the ARB. (viii) UtiliW 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. (ix) Mailboxes. All dwellings within the Properties shall have standard mailboxes conforming to postal regulations and the guidelines for such mailboxes adopted by the ARB. The ARB reserves the right to approve the style, design, color and location prior to installation or replacement of any mailbox. Application shall be made to the ARB prior to installation or replacement. By accepting a deed to a Homesite, each Owner agrees that the ARB may remove any G ~Lmz\L)cclarafions\Wilshirc\ccrv4. rrm - 29 non-approved mailbox in a reasonable manner; all costs for same shall be paid by Owner of such Homesite, and all claims for damages caused by the ARB are waived.. (x) Minimum Dwelling Size. The Architectural Standards may establish a minimum square footage of enclosed, heated and cooled living space for residential dwellings, which minimum shall not violate any zoning requirements and may vary from one (1) portion of the Properties to another; provided however, no residential dwelling shall be less than one thousand five hundred (1,500) square feet of enclosed, heated and cooled living space. 10.4. 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 fight to withhold approval as to any similar proposals, plans and specifications, drawings, or other matters subsequently or additionally submitted for approval. 10.5. Variance. The ARB may authorize x~ariances 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 shall not be considered a hardship warranting a variance. 10.6. 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 Association, 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, nor for ensuring compliance with building codes and other governmental requirements, nor for ensuring that 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 or any committee, or member of any of the foregoing shall be held liable for any injury, damages, or loss arising out of the manner or quality of approved construction on or modifications to any Homesite. In all matters, the committees and their members shall be defended and indemnified by the Association as provided in Section 5.5. 10.7. Enforcement. The Declarant, any member of the ARB, or the Board, or the representatives of each shall have the right, during reasonable hours and after reasonable notice, to enter upon any Homesite 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 pri~.to the nonconforming work. Should an Owner fail to remove and restore the property as required, after compliance with any procedures established by the Governing Documents any authorized agent of Declarant, the ARB or the Board shall have the right to enter the property, remove the violation, and restore the property to substantially the same condition as previously existed. Entry for such purposes and in compliance with this Section shall not constitute a trespass. In addition, the Board may enforce the decisions of the Declarant, the ARB by any means of enforcement described in Section 5.3. All costs, together with the interest at the maximum rate then allowed by law, may be assessed against the benefitted Homesite and collected as a Specific Assessment. Unless otherwise specified in writing by the committee granting approval, 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 Homesite, unless approval to modify any application has been obtained. If, after commencement, any Person fails to diligently pursue to completion all approved work, the Association shall be authorized, after notice to. the Owner of the Homesite and an opportunity to be heard in accordance with the By-Laws, to enter upon the Homesite and remove or complete any incomplete work and to assess all costs incurred against the Homesite and the Owner thereof as a Specific Assessment. Neither the ARB nor any member of ~e foregoing, nor the Association, the Declarant, or their members, officers or directors shall be held liable to any Person for exercising the rights granted by this Article. 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 11: USE RESTRICTIONS 11.1. General. This Article sets out certain use restrictions which must be complied with by all Owners and occupants of any Homesite. The Properties shall be used only for residential, recreational, and related purposes (which may include, without limitation, model homes, 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 Exhibits "A" or "B," offices for any property manager retained by the Association, business offices for the Declarant or the Association or related parking facilities) consistent with this Declaration and any Supplemental Declaration. 11.2. Rules and Regulations. In addition to the use restrictions set forth in this Article, the Board may, from time to time, without consent of the Members, promulgate, modify, or delete rules and regulations applicable to the Properties. Such rules shall be distributed to all Owners and occupants prior to the date that they are to become effective and shall thereafter be binding upon all Owners and occupants until and unless overruled, canceled, or modified in a regular or special G:\l.omDcclarations\Wilshire!ccrv4.fnn - 3 I meeting by Members holding a Majority of the total Class "A" votes in the Association, and, during the Development Period, the written consent of the Declarant and, where applicable, any predecessor Declarant. 11.3. Occupants Bound. All provisions of the Declaration, By-Laws, and of any rules and regulations, use restrictions or Architectural Standards governing the conduct of Owners and establishing sanctions against Owners shall also apply to all occupants even though occupants are not specifically mentioned. 11.4. Leasing. Homesites 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. 11.5. Residential Use. Homesites may be u~ed only 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: (a) the existence or operation of the activity is not apparent or detectable by sight, sound, or smell from outside the Homesite; (b) the activity conforms to all zoning requirements for the Properties; (c) the activity does not involve regular visitation of the Homesite by clients, customers, suppliers, or other invitees or door-to-door solicitation of residents of the Properties; (d) the activity does not increase traffic or include frequent deliveries within the Properties; and (e) the activity is consistent with the residential character of the Properties and does not constitute a nuisance, or a hazardous or offensive use, or threaten the security or safety of other residents of the Properties, as may be determined in the sole discretion of the Board. No other business, trade, or similar activity shall be conducted upon a Homesite 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: (a) such activity is engaged in full or part-time, (b) such activity is intended to or does generate a profit, or.(c) a license is required. The leasing ofa Homesite 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 Homesites which it owns within the Properties, including the operation of a timeshare or similar program. 11.6. Occupancy of Unfinished Homesites. No dwelling erected upon any Homesite shall be occupied in any manner before commencement of constmctio, u.. or while in the course of construction, nor at any time prior to the dwelling being fully completed. 11.7. Vehicles. (a) Automobiles and non-commercial trucks and vans shall be parked only in the garages or in the driveways, if any, serving the Homesites 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 track or van may be left upon any portion of the 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. No motorized vehicles shall be permitted on pathways or unpaved Common Property except for public safety vehicles authorized by the Board. (b) Recreational vehicles shall be parked only in the garages, if any, serving the Homesites or, with the prior written approval of the ARB, other hard-surfaced areas which are not visible from the street; provided however, guests of an Owner or occupant may park a recreational vehicle on the driveway serving such Owner's or occupant's Homesite for a period not to exceed seven (7) Days each calendar year. "Visibility" shall be determined by the ARB in its sole discretion. 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, go-carts, golf carts, campers, buses, commercial trucks and commercial vans. Any recreational vehicle parked or stored in violation of this provision in excess of seven (7) Days shall be considered a nuisance and may be removed from the Properties. The Declarant and/or the Association may designate certain parking areas within the Properties for recreational vehicles subject to reasonable rules and fees, if any. (c) Service and delivery vehicles may be parked in the Properties during daylight hours for such periods of time as are reasonably necessary to provide service or to make a delivery within the Properties. (d) All vehicles shall be subject to such reasonable rules and regulations as' the Board of Directors may adopt. 11.8. Parking. Unless otherwise approved by the Board, vehicles shall be parked only in the garages or in the driveways, if any, serving the Homesites or in appropriate spaces or areas designated by the Board. Vehicles shall be subject to such reasonable rules and regulations as the Board may adopt. The Declarant and/or the Association may designate certain parking areas for visitors or guests. Service and delivery vehicles may be parked in the Properties during daylight hours tbr such periods o£time as are reasonably necessary to provide service or to make a delivery to a Homesite or to the Common Property. Any vehicle parked in violation of this Section or parking rules promulgated by the Board may be towed in accordance with the Governing Documents. The provisions of this section shall not apply to Declarant or to a~.y Builder in the process of constructing approved improvements. 11.9. Use of Common Property. There shall be no obstruction of the Common Property, nor shall anything be kept, parked or stored on any part of the Common Property without the prior written consent of the Association, except as specifically provided herein. With the prior written approval of the Board of Directors, and subject to any restrictions imposed by the Board, an Owner or Owners may reserve portions of the Common Property for use for a period of time as set by the Board. Any such Owner or Owners who reserve a portion of the Common Property as provided herein shall assume, on behalf of himself/herself/themselves and his/her/their guests, occupants and family, all risks associated with the use of the Common Property and all liability for any damage or injury to any person or thing as a result of such use. The Association shall not be liable for any damage or injury resulting from such use unless such damage or injury is caused solely by the willful acts or gross negligence of the Association, its agents or employees. 11.10. Animals and Pets. No animals, livestock, or poultry of any kind may be raised, bred, kept, or permitted on any Homesite, 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 commercial purposes without prior written Board approval. All pets shall be reasonably controlled by the owner whenever outside a Homesite 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 5.3. 11.11. Nuisance. It shall be the responsibility of each Owner and occupant to prevent the development of any unclean, unhealthy, unsightly, or unkempt condition on his or her property. No property within the Properties shall be used, in whole or in part, for the storage of any property or thing that will cause such Homesite 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 xvithin the Properties, nor shall anything be done tending to cause embarrassment, discomfort, annoyance, or nuisance to any Person using any property within the Properties. There shall not be maintained any plants or animals or device or thing of any sort whose activities or existence in any way is noxious, dangerous, unsightly, unpleasant, or of a nature as may diminish or destroy the enjoyment of the Properties. Without limiting the generality of the foregoing, no speaker, hom, whistle, siren, bell, amplifier or other sound device, except such devices as may be used exclusively for security purposes or as approved G :\ Lon\ Declarations[ Wilshir e'~cc r ¥4. rrm - 34 by the ARB, shall be located, installed or maintained upon the exterior of any Homesite 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. 11.12. Storage of Materials, Garbage, Dumping. Etc. 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. There shall be no dumping of grass clippings, leaves or other debris; rubbish, trash or garbage; petroleum products, fertilizers, or other potentially hazardous or toxic substances in any drainage ditch, stream, pond, or lake within the Properties, except that fertilizers may be applied to landscaping on Homesites provided care is taken to minimize runoff. Each Owner shall maintain its Homesite in a neat and orderly condition throughout initial construction ora residential dwelling and not allow trash and debris from its activities to be carded by the wind or otherwise scattered within the Properties. Storage of construction materials on the Homesite shall be subject to such conditions, rules, and regulations as may be set forth in the Architectural Standards. 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 Homesites and shall not be buried or covered on the Homesite. Any Homesite on which construction is in progress may be policed prior to each weekend, and during the weekend all materials shall be neatly stacked or placed and any trash or waste materials shall be removed. In addition, Owners shall remove trash and debris from the Homesite upon reasonable notice by Declarant in preparation for special events. 11.13. Combustible Liquid. There shall be no storage of gasoline, propane, heating or other fuels, except for a reasonable amount of fuel that may be stored in containers appropriate for such purpose on each Homesite for emergency purposes and operation of lawn mowers and similar tools or equipment and except as may be approved in writing by the ARB. The Association shall be permitted to store fuel for operation of maintenance vehicles, generators and similar equipment. 11.14. 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 enforcement remedies as set forth in this Declaration, but shall have no obligation to exercise self-help to prevent or stop any such discharge. 11.15. Subdivision of Itomesite. No Homesite shall be subdivided or its boundary lines changed after a subdivision plat including such Homesite 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 G :\ Lmm\ D¢clarafions\Wilsl~ire\cc tv4. rrm - 35 create housing for more than a single family. Declarant, however, hereby expressly reserves the right to replat any Homesite or Homesites which it owns. Any such divis!on, boundary line change, or replatting shall not be in violation of the applicable subdivision and:z6ning regulations, if any. 11.16. Sight Distance at Intersections. All property located at street intersections or driveways shall be landscaped and improved so as to permit safe sight across such areas. No fence, wall, hedge or shrub shall be placed or permitted to remain where it would cause a traffic or sight problem. 11.17. Drainage and Gradine. (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. (b) Each Owner shall be responsible for maintaining all drainage areas located on its Homesite. Required maintenance shall include, but not be limited to, maintaining ground cover in drainage areas and removing any accumulated debris from catch basins and drainage areas. (c) Each Owner shall be responsible for controlling the natural and man-made water flow from its Homesite. No Owner shall be entitled to overburden the drainage areas or drainage system within any portion of the Properties with excessive water flow from its Homesite. Owners shall be responsible for all remedial acts necessary to cure any unreasonable drainage flows from Homesites. Neither the Association nor the Declarant bears any responsibility for remedial actions to any Homesite. (d) Use of any areas designated as "drainage easement areas" on any recorded subdivision plat of the Properties, shall be subject to strict prohibitions against encroachment of structures (including but not limited to fences) into, over or across the drainage easement areas, and the right ofthe Declarant to enter upon and maintain the drainage easement areas. Such maintenance activities may include disturbance of landscaping pursuant to the terms contained in any declaration of easements, notwithstanding approval of the landscaping as set forth in Article 10. (e) No Person shall alter the grading of any Homesite 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 Homesite without the Owner's consent. (ir) All Persons shall comply with any and all applicable city and county erosion control ordinances in construction of improvements on any Homesite and in conducting any activity within non-disturbance buffer zones. 11.18. Irrigation. Owners shall not install irrigation systems which draw upon ground or surface waters nor from any lakes or ponds w/thin the Properties. However, the Declarant and the Association shall have the right to draw water from such sources roi!the purpose of irrigating the Area of Common Responsibility. 11.19. Streams. No streams which rrm across any Homesite 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 fights as provided in Article 11. ARTICLE 12: EASEMENTS Declarant reserves, creates, establishes, promulgates, and 'declares the non-exclusive, perpetual easements set forth herein for the enjoyment of the Declarant, the Association, the Members, and the Owners, and their successors-in-title. 12.1. Easements of Encroachment. Declarant reserves, creates, establishes, promulgates and declares non-exclusive, perpetual, reciprocal, appurtenant easements of 6ncroa~hment, and for maintenance and use of any permitted encroachment, between adjacent Homesites and between each Homesite and any adjacent Common Property 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. 12.2. Easements for Utilities, Etc. (a) Declarant reserves, creates, establishes, promulgates and declares non- exclusive, perpetual, reciprocal, appurtenant easements, for itself during the Development Period, for the Association, and the designees of each (which may include, without limitation, any governmental or quasi-governmental entity and any utility company) 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 removing cable, digital or similar television systems, master television antenna systems, and other devices for sending or receiving data and/or other electronic signals; security and similar systems; roads, walkways, pathways and trails; lakes, ponds, wetlands, irrigation, and drainage systems; street lights and signage; and all utilities, including, but not limited to, water, sewer, telephone, gas, and electricity, and utility meters; and an easement for access of vehicular and pedestrian traffic over, across, and through the Properties, as necessary, to exercise the easements described above. Declarant may assign to the local water supplier, sewer service provider, electric company, telephone company, and natural gas supplier the easements set forth herein across the Properties for ingress, egress, installation, reading, replacing, repairing, and maintaining utility lines, meters and boxes, as applicable. (b) Declarant reserves, creates, establishes, promulgates and declares for itself during the Development Period and its designees non-exclusive, perpetual, reciprocal, appurtenant easements, the non-exclusive fight 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 Exhibits "A" or "B." (c) Any damage to a Homesite resulting from the exercise of the easements described in subsections (a) and (b) 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 petmitting entry into the structures on any Homesite, nor shall it unreasonably interfere with the use of any Homesite, and except in an emergency, entry onto any Homesite shall be made only after reasonable notice to the Owner or occupant. (d) Declarant reserves unto its61fthe 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. 12.3. Easements to Serve Additional Property. The Declarant reserves, creates, establishes, promulgates and declares non-exclusive, perpetual, reciprocal, appurtenant easements for itself and its duly authorized successors and assigns, including without limitation, successors-in- title, agents, representatives, and employees, successors, assigns, licensees, and mortgagees, an easement over the Common Property for the purposes of enjoyment, use, access, and development of the Additional Property, whether or not such property is made subject to this Declaration. This easement includes, but is not limited to, a right of ingress and egress over the Common Property for construction of roads, for the posting of signs, and for connecting and installing utilities serving the Additional Property. Declarant agrees that it and its successors or assigns shall be responsible for any damage caused to the Common Property as a result of vehicular traffic connected with development of the Additional Property. 12.4. Easement for Entry. (a) Declarant reserves, creates, establishes, promulgates and declares non- exclusive, perpetual, reciprocal easements for the Association to enter upon any Homesite for emergency, security, and safety reasons. Such right may be exercised by any member of the Board, the Association's officers, committee members, agents, employees and managers of the Association, 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 Homesite shall be only during reasonable hours and after notice to and permission from the Owner. This easement includes the right to enter any Homesite 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 per~bnnel acting in their official capacities. Entry under this Section shall not constitute a trespass. There shall also exist non-exclusive, perpetual reciprocal easements for each Owner to access Owner's Homesite for maintenance and repair. This easement shall be construed liberally, and each Owner agrees to cooperate with other Owners and the Board of Directors to permit such access as may be necessary to conduct maintenance and repairs to the party walls or fences between adjoining Homesites. (b) In addition to the foregoing, Declarant hereby declares an easement to exist for the repair, maintenance and replacement of all structures and improvements placed upon any Homesite by the Declarant and intended to benefit the Development. 12.5. Easements for Maintenance and Enforcement. Declarant reserves, creates, establishes, promulgates and declares non-exclusive, perpetual, reciprocal easements for the Association to enter all portions of the Properties, including each Homesite, to (a) perform its maintenance responsibilities under Article 5, and (b) make inspections to ensure compliance with the Governing Documents. Except in emergencies, entry onto a Homesite 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. The Association also may enter a Homesite to abate or remove, using such measures as may be reasonably necessary, any structure, thing or condition which violates the Governing Documents. Ail costs incurred, including reasonable attorneys fees, may be assessed against the violator as a Specific Assessment. 12.6. Lateral Support. Declarant reserves, creates, establishes, promulgates and declares non-exclusive, perpetual, reciprocal, appurtenant easements over every portion of the Common Property, every Homesite, and any improvement which contributes to the lateral support of another portion of the Common Property,or of another Homesite shall be burdened with an easement for lateral support, and each shall also have the right to lateral support which shall be appurtenant to and pass with title to such property. 12.7. Easement for Special Events. Declarant reserves, creates, establishes, promulgates and declares for itself, its successors, assigns and designees a perpetual, non-exclusive reciprocal, appurtenant easement over the Common Property 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 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 Homesite, ackno~vledges and agrees that the exercise of this easement may result in a G:\Lml\D¢clarations\Wilshir&ccrv4. frm - 39 temporary increase in traffic, noise, gathering of crowds, and related inconveniences, and each Owner agrees on behalf of itself and the occupants of its Homesite to take no action, legal or otherwise, which would interfere with the exercise of such easement:6'r to recover damages for or as the result of any such activities. 12.8. 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 Declaranfs rights and easements provided in this Section shall be automatically transferred to the Association at the expiration of the Development Period 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 in the ordinary course of maintenance of these areas. Any landscaping pemfitted 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. 12.9. 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 13: MORTGAGEE PROVISIONS The following provisions are for the benefit of holders, insurers and guarantors of first Mortgages on Homesites in the Properties. The provisions of this Article apply to both this Declaration and to the By-Laws, notwithstanding any other provisions contained therein. 13.1. 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 G:\Lon\Declarafions\Wilshire\ccrv4. rrm - 40 holder, insurer, or guarantor and the street address of the Homesite 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 Homesite 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 Homesite 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 Homesite or the Owner or Occupant which is not cured within sixty (60) Days; (e) 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." 13.2. Right to Records. Upon written request in accordance with Section 13.01, all eligible holders shall: (a) be entitled to attend and observe all meetings of Owners, but not meetings of the Board; (b) be furnished with copies of annual financial reports made to the Owners; and (c) be entitled to inspect the financial bonds and records of the Association during reasonable business hours. 13.3. 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 Homesite in the case of distribution to such Owner of insurance proceeds or condemnation awards for losses to or a taking of the Common Property. 13.4. 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 Homesite. 13.5. Amendment by Board. Should the Department of Veterans Affairs, the Federal Housing Administration, the Federal National Mortgage Association, or the Federal Home Loan Mortgage Corporation subsequently delete any of their respective requirements ~vhich may have necessitated the provisions of this Article or make such requirements less stringent, the Board, without approval of the Owners, may cause an amendment to this Article to be recorded to reflect such changes. 13.6. HUD/VA Approval. As long as there is a Class "B" membership, the following actions shall require the prior approval of the U.S. Department of Housihg and Urban Development, so long as it is insuring the Mortgage on any Homesite, or the U.S. Department of Veterans Affairs, so long as it is guaranteeing the Mortgage on any Homesite: merger, consolidation or dissolution of the Association; annexation of additional property other than the Additional Property, dedication, conveyance or mortgaging of Common Property except in accordance with Section 5.2; or material amendment of this Declaration, the By-Laws or the Articles. 13.7. Failure of Mort~affee 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 (3 0) 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. 13.8. 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. ARTICLE 14: DECLARANT'S RIGHTS 14.1. Transfer or Assignment. 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 the Association or to other Persons, provided that the transfer shall not reduce an obligation nor enlarge a right beyond that which the Declarant has 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. 14.2. Development and Sales. The Declarant and Builders authorized by Declarant may maintain and carry on the Properties such activities as, in the sole opinion of the Declarant, may be reasonably required, convenient, or incidental to the development of the Properties and/or the construction or sale of Homesites, such as sales activities, tournaments, charitable events, and promotional events, and restrict Members from using the Common Property during such activities. Such activities shall be conducted in a manner to minimize (to the extent reasonably possible) any substantial interference ~vith the Members' use and enjoyment of the Common Property. The Declarant and authorized Builders shall have easements over the Properties for access, ingress and conducting such activities. In addition, the Declarant and Builders authorized by Declarant 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 Homesites, including, but not limited to, business offices, signs, model Homesites, tents, sales offices, sales centers and related parking facilities. During the Development G:\Lm~Dcclarations\Wilshire\ccrv4 frrn - 42 Period, Owners may be excluded from use of all or a portion of such facilities in the Declarant's sole discretion. The Declarant and authorized Builders shall have easements over the Properties for access, ingress, and egress and use of such facilities. Declarant may permit the use of any facilities situated on the Common Property by Persons other than Owners without the payment of any use fees. Declarant may charge a reasonable fee for the management of the Association or may specifically hire a management company for that purpose. All mounts paid for management, whether to the Declarant or to a management company, shall be considered Common Expenses. 14.3. Common Properties. In addition to any real property and easements that may be described elsewhere in this Declaration as Common Property, the Declarant may convey, or cause to be conveyed, to the Association such other real and personal property as the Declarant, in Declarant's sole discretion, may determine to be necessary or proper for ownership by the Association as Common Property. The Association hereby covenants and agrees to accept all conveyances of Common Property made or caused to be made by Declarant. Notwithstanding any legal presumption to the contrary, the fee title to, and all rights in, any portion df the Properties owned by the Declarant and designated as Common Property, (or which is designated by any words which similarly signify such property is for the use of the Owners in the Development, e.g. "Amenities," "Recreation Area," or "Open Space") whether by recorded plat of survey or otherwise, or designated for public use, shall be reserved to the Declarant until such time as the same shall be conveyed to the Association or to any municipality or other governmental body, agency or authority. Declarant hereby reserves the right, but not the obligation, to be exercised in its sole discretion, to designate the boundaries of all Homesites and Common Property within the Properties as they are developed and platted and to construct improvements thereon. Declarant shall have the right, but not the obligation, to make improvements and changes to all Common Property and to all Homesites owned by Declarant, including, without limitation, (i) installation and maintenance of any improvements in and to the Common Property, (ii) changes in the location of the boundaries of any Homesite owned by the Declarant or of the Common Property, (iii) installation and maintenance of any stoim drainage system and water, sewer and other utility systems and facilities; and (iv) installation of security and/or refuse facilities. In accordance with the preceding, Declarant reserves the right to record, modify, amend, revise and add to, at any time and from time to time, any recorded plat or supplemental plats of the Development, setting forth such information as Declarant may deem necessary with regard to the Development, including without limitation, the locations and dimensions of the Homesites, Common Property, Additional Property (if any), roads, utility easements and systems, drainage easements and systems, right-of- way easements, and setback line restrictions. In addition to other reasons, the rights reserved to Declarant herein are for the purpose of allowing the expansion of the Development to include additional land, and to specifically allow the reconfiguration of Homesites and the roads serving the Development and the extension of roads into the Additional Property, if any. The Declarant and its employees, agents and designees shall also have a right and easement over and upon all of the Common Property for the purpose of making, constructing and installing such improvements to the Common Property as it deems appropriate in its sole discretion. ::-. 14.4. Annlication of Architectural Standards. The provisions contained in Articles 9 and 10, as well as all other architectural control provisions, including but not limited to building setbacks, contained in this Declaration, the Articles of Incorporation or the Bylaws, shall not apply to Declarant, nor to any predecessor Declarants. In addition, said provisions shall not apply to any Builder who acquires a Homesite from Declarant, any predecessor Declarants, or through other Builders who had acquired the Homesite from said parties for the purpose of constructing a dwelling thereon; provided, however, any such Builder must submit to and have its plans and specifications approved by Declarant, if title to the Homesite passed through Declarant, and provided further, if title to the Homesite passed through a predecessor Declarant, and said predecessor still owns at least one (1) Homesite for sale in the Development, then such plans and specifications must only be approved by said predecessor. This Section 14.4 may only be amended with the prior written consent of the Declarant during the Development Period, and with the prior written consent of any predecessor Declarants still owning at least one (1) Homesite for sale. 14.5. Additional Covenants. No Person shall record any declaration of covenants, conditions and restrictions, declaration of condominium, easements, or similar instnauent 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. No such instrument recorded by any Person, other than the Declarant pursuant to Section 8.4, may conflict with the Declaration, By-Laws or Articles. 14.6. Right 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 approye 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. (a) 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 or any committee. Such notice shall be given by certified mail, return receipt requested, or by personal delivery at the address the Class "B" Member has registered with the secretary of the Association, which notice complies with the By-Laws and which notice shall, except in the case of the regular meetings held pursuant to the By-Laws, set forth in reasonable particularity the agenda to be followed at such meeting. (b) 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 disfi~proval set forth herein. 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. (e) 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 subsections (a) and (b) above have been met and the time period set forth in subsection (d) below has expired. (d) The Class "B" Member, acting through any officer or director, agent or authorized representative, may exemise 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 of a 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. 14.7. Amendments. Notwithstanding any contrary provision of this Declaration, no amendment to or modification of any use restrictions and roles or Architectural Standards made after termination of the Class "B" Control Period shall be effective without prior notice to and the written consent of the Declarant, during the Development Period. 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) expiration of Development Period, or (b) upon recording by Declarant of a written statement that all sales activity has ceased. ARTICLE 15: GENERAL PROVISIONS 15.1. Duration. (a) Unless Otherwise provided by Georgia law, in which case such law shall control, this Declaration may not be terminated within thirty (30) years of the date of recording without the consent of all Owners. Thereafter, it may be terminated only by an instrument signed by Owners of at least seventy-five percent (75%) of the total Homesites within the Properties and by the Declarant, if the Declarant owns any portion of the Properties, which instrument is recorded in the Public Records. 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. G :\Lon\l)eclaralions\Witshir¢\ccrv4. rrm - 45 15.2. Amendment. (a) By Declarant. Subject to the provisions of A~icle 13, the Declarant may unilaterally amend this Declaration at any time and from time to time if such amendment is necessa~ (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 Homesites; (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 Homesites; (iv) to satisfy the requirements of any local, state or federal governmental agency; or, (v) to correct a scrivener's error. However, any such amendment shall not adversely affect the title to any Homesite 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 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 the Owners. During the Development Period, any such amendments shall require the written consent of the Declarant and any predecessor Declarant owning at least one Homesite primarily for sale.. (c) By Members. Except as otherwise specifically provided above and elsewhere in this Declaration, this Declaration may be amended only by the affirmative vote or written consent, or any combination thereof, of Members holding 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. In addition, approval requirements set forth in Article 13, if any, shall be met. 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 recordation in the Public Records, unless a later effective date is specified in the amendment. Any procedural challenge to an amendment must be made within six (6) months of its recordation or such amendment shall be presumed to have been validly adopted. In no event shall a change of conditions or circumstances operate to amend any provisions of this Declaration. During the Development Period, no amendment may remove, revoke, or modify any right, privilege or exemption of Declarant or the Class "B" Member without the written consent of the Declarant, the Class "B" Member, or the assignee of such right, privilege or exemption. In addition, for so long as any predecessor Declarant owns at least one Homesite primarily for sale, no amendment may G :\ Lon\ Dcclaratim~\Witshir&cc tv4. fnn - 46 remove, revoke, or modify any right, privilege or exemption of said predecessor Declarant without the written consent of said predecessor Declarant. 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. 15.3. Severabilitv. Invalidation of any provision of this Declaration, in whole or in part, or any application ora provision of this Declaration by judgment or court order shall in no way affect other provisions or applications. 15.4. Dispute Resolution. Any Owner or occupant must give written notice to the Board requesting a hearing with the Board and attend such hearing to discuss amicable resolution of any dispute before that Owner or occupant files any lawsuit against the Association, the Board, any director, or any agent of the Association. The Owner'or occupant shall, in such notice and at the hearing, make a good faith effort to 'explain the grievance to the Board and to resolve the dispute in an amicable fashion and shall give the Board a reasonable opportunity to address the Owner's or occupant's grievance before filing suit. Upon receiving a request for a heating, the Board shall give notice of the date, time and place of the hearing to the person requesting the hearing. The Board shall schedule this hearing for a date no less than seven (7) nor more than twenty-one (21) Days from the date of receipt of the notice of heating by the person requesting the hearing. 15.5. Litigation. Except as provided below, no judicial or administrative proceeding shall be commenced or prosecuted by the Association unless approved by a vote of Members holding seventy-five percent (75%) of the total Association vote. This Section shall not apply, however, to (a) actions brought by the Association to enforce the provisions of the Governing Documents (including, without limitation, the foreclosure of liens); (b) the imposition and collection of assessments as provided in Article 8; (c) proceedings involving challenges to ad valorem taxation; (d) counter-claims brought by the Association in proceedings instituted against it or (e) actions brought by the Association against any contractor, vendor, or supplier of goods or 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. 15.6. Non-Merger. Notwithstanding the fact that Declarant is the current owner of the Properties, it is the express intention of Declarant that the easements established in the Declaration 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. 15.7. Grants. The parties hereby declare that this Declaration, and the easements created herein shall be and constitute covenants ranning with the fee simple estate of the Properties. The grants of easements in this Declaration are independent of any covenmi~/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 in this Declaration. 15.8. Cumulative Effect; Conflict. The provisions of this Declaration shall be cumulative with any additional covenants, restrictions, and declarations, and the Association may, but shall not be required to, enforce such additional covenants, conditions, and provisions; provided however, in the event ora conflict between or among this Declaration and such covenants or restrictions, and/or the provisions of any articles of incorporation, by-laws, rules and regulations, policies, or practices adopted or carried out pursuant thereto, this Declaration, the By-Laws, Articles, and use restrictions and rules of the Association shall prevail. The foregoing priorities shall apply, but not be limited to, the lien for assessments created in favor of the Association. Nothing in this Section shall preclude any Supplemental Declaration or other recorded declaration, covenants and restrictions applicable to any portion of the Properties from containing additional restrictions or provisions which are more restrictive than the provisions of this Declaration, and the Association shall have the standing and authority to enforce the same. 15.9. Use of the Words "Wilshire Estates". No Person shall use the words "Wilshire Estates" or any derivative in any printed or promotional material without the Declarant's prior written consent. However, Owners may use the words "Wilshire Estates" in printed or promotional matter where such terms are used solely to specify that particular property is located within Wilshire Estates and the Association shall be entitled to use the words "Wilshire Estates" in its name: 15.10. Compliance. Every Owner and occupant of any Homesite 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 5.3. 15.11. Notice of Sale or Transfer of Title. Any Owner desiring to sell or otherwise transfer title to a Homesite 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 Homesite, including assessment obligations, until the date upon ~vhich such notice is received by the Board, notwithstanding the transfer of title. 15.12. Exhibits. Exhibits "A" and "B" attached to this Declaration are incorporated herein by this reference. During the Development Period no revision or amendment of said Exhibits shall be made without the prior consent of Declarant. 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. IN V~iT~IE~ S WHEREOF, the undersigned Declarant has executed this Declaration this dayof F_~ _~.~// ,2000. -' Signed, sealed and delivered DECLARANT: in the presence of: CENTEX HOMES, by its managing general partner,  ./~ CENTEX REAL ESTATE CORPORATION ........ ~ - (CORPORATE SEAL) Notary Public G:\ Lon\ Dcclarations\Wilshir e\cc rv4. rrm. 49 EXHIBIT "A" Land Initially Submitted All those certain tracts, parcels or lots of land lying and bing in Land Lot 29, 6th District of Fayette County, Georgia, as shown on that certain Final Plat of Wilshire Estates Phase lA prepared by Robert P. Cleghom, R.L.S. No. 2425, dated August 29, 2000, as recorded inthe public records of Fayette County, Georgia in Plat Book 33 , Page , (the "Plat"); which Plat is incorporated herein by this reference, t 9/4-196 Exhibit Page 1 of 1 EXHIBIT "B" Additional Property ::" All that certain real property lying and being located within ~A mile of the boundary of the land described on the Plat. ' WILSHIRE ESTATES Architectural StandardS Adopted by Wilshire Estates Architectural Review Board October 12, 2000 G:k~mq)cclarations~Wilshire~,3.wlxl /. H/. TABLE OF CONTENTS Page INTRODUCTION ....................... Purpose of the Architectural Standards ....................................................... 1 The Architectural Review Board ............. , .................................................... 2 Overview of the Change Request Process .................................................... 2 ARB 's Right to Verify Construction in Accordance with Apprqved Plans ........................... ~ ..................... 3 Violation Fines .......... ~ ........... ,...~ ................................................................... 3 Disclaimers EXTERIOR STANDARDS .......................................................................... 5 Construction .... ....................................... : ............................................. ; ........ 5 Driveways/Walk~ays .................................................................................... 5 Doors/Windows/Shutters .............................................................................. 5 Exterior/.ighting .......................................................................................... 5 Paint/Siding/Brick/Roof ......................................... ; ........... ' .......................... 5 Mail Boxes/Street Numbers ................... . ........................... ~ .......................... 6 DeCks/Patios/Lattice Work ......................... : ................................... : ............. 6 Fences ...................................................... ; .................................................... 6 Detached Structures ...................................................................................... 6 LANDSCAPE STANDARDS ....................................................................... 7 Developing a/.andscape Plan ...................................................................... 7 /..awns ............................................................................................................ 7 Pine Islands/Trees/Bushes ....................... ; ................................................... 7 Rbmoval of Trees ................. . ........................................................................ 8 RECREATIONAL EQUIPMENT STAND/~O~/DS ...... ~ ................................ 8 Children Playsets/Bikes/Toys ....................................................................... 8 Pools/Spas/Whirlpools .................................................................................. 8 V. MISCELLANEOUS ITEMS ........................................................................ 8 Flags/Flagpoles .................. ~ ...... ~ ................................................................... 8 Common Areas/Signs ................................................................................... 8 Appendix A: Blank ARB Request for Change Form I. INTRODUCTION Purpose of the Architectural Standards One of the primary purposes of the Declaration of Covenants, Conditions and Restrictions for Wilshire Estates (the "Declaration") is to pr0vidc for a method of determining certain architectural standards that will assure each of us that the property within our community will be developed and maintained in a fashion that will protect the investment of every homeowner. One important aspect of maintaining the integrity of a residential community is provided by the Declaration in authorizing the formation a~d duties of the Architectural Review Board ("ARB"). The ARB has the right to review and approve changes to the exterior of homes within the community. The Declaration strictly prohibits the addition of any Structure, or the alteration of any Structure, on any Homesite without the written approval of the ARB. The prohibition is very broad, including, but not limited to, the charting of exterior paint colors on a home. The DeClaration further states that the.ARB has the right to develop and disseminate m;chitectural . guidelines for the Community. These guidelines are ref~i-ed to specifically in the Declaration as the "Architectural Standards" and should, be considered an extension of the Declaration, This document is not an all inclusive list of restrictions, but is a set of guidelines to be followed by homeowners when pJ~nnlng landscaping or the construction or alteration of any Structure located on their property, These guidelines do not include any approvals or restrictions required by local goyernmental Authorities. - The Architectural Standards set forth herein have been'developed pursuant tO Article 10 and expand the criteria in Article 11 of the Declaration. Their purpose is to publish guidelines related to (I) the use and maintenance of the property within Wilshire Estates and ~ the construction of improvements (including the alteration of Structures) upon Homesites within the community. As guidelines, these standards may not be determinative of whether or not a particular use of one's property is acceptable, or whether, or not the plan.~ for a proposed improvement will be approved. Because of the uniqueness of each Lot within the community, including variations in size, topography and location, certain uses, improvements or modifications suitable for one Lot may be inappropriate for another Lot. Therefore, despite the guidelines offered by these Standards, the ARB is authorized to apply or adopt different standards for different Lots to reflect those differences.~ As an example, the ARB may allow an improvement, modification or change to a Structure which cannot be seen from any street or other Lot within the community, but prohibits the same improvement if it can be seen from any street or any other Lot. All changes which require approval of Peachtree City, Fayette County or any other governmental authority must be obtained by owners prior to submitting requests for ARB approval. Evidence of governmental approvals must accompany all requests for approval by the ARB. The Architectural Review Board The ARB' is made up of members appointed by the Declarant as authorized by the Declaration. After the Declarant no longer has the right to appoint the members of the ARB, the authority will .be shifted to the Board of Directors of Wilshire Estates Comm~mlty Association, Inc. The Declaration grants the ARB discretionary powers regarding the aesthetic impact Of design, construction .and developm~t including architectural .style, colors, textures, materials, landscaping and overall impact on surrouncli~g properties. It is not the intent of the ARB to impose ~'~.uniform appearance within Wilshire Estates nor to discourage creativity on behalf of the homeowners. Its intent is to promote and assure that all improvements are aesthetically compatible, and reflect the image of a quality community. During the plan review process, the ARB intends to be fair, impartial and understanding of individual goals. Overview of the Change Request Process General Information Homeowners are requested to provide as much detail as p..ossible when submitting a Change Request Fo,a to the ARB. This will .eliminate confusion and reduce the time required to respond to the requesting homeowner. Plans should be specific in nature and include such items as types of materials to be used, planned start/completion dates, types of plants, size of plants and actual photographs of swings or arbors when applicable. Plans should also be limited in size to work that can be completed in a 30-day period unless a longer time is requested due to an exceptionally large project. All submissions must be accompanied by appropriate governmental approvals. The ARB will meet the 3rd Monday of each month to review new change requests and conduct' homeowner site visits. Every change request will be responded to in writing within 30 days from the day all final documentation has been received. Step I - Submitting Plans Homeowners are requested to submit photocopies of all plans and documentation. All submitted plans become the property of the ARB and wa'Il not be returned, but filed for future references and verification. Wilshire Estates homeowners should deliver their Change Request Form and all necessary documentation, including plans, architectural drawings/photographs, property survey showing improvements and description of materials to: · Wilshire Estates Architectural Review Board ATTN: ARB Coordinator 100 Governors Trace Suite 110 Fayetteville, GA 30215 Once plans are received, they will be date stamped and reviewed by the ARB in the order in which they are received. A member of the ARB will notify the h. gmeowner by phone of the approximate date and time of the on-site visit. In most cases, the/:tomeowner's participation is not required for the on-site review, but is always welcome. Step 2-On-~'ite Re~ie~ Process The purpose of the on-site review is for the ARB 'members to assess the impact the request may have to neighbors and the general quality 0fthe Community. The onsite process is usually brief (5-20 m/nutes) with no or limited homeoWner involvement. However, we recommend that a homeowner be available for questions for e~nplex plans. Step 3-Decision Process Upon completion of the site review, the ARB will stamp the change request with one of four ' decisions and will contact the homeowner directly to. 6xplain the decision. Plan ~4ccepted- The plan was accepted as documented and the homeowner Can begin the requested changes immediately upon obtaining all necessary governmental permits. All work must be done in accordance with the plans as approved by the ARB. All changes or modifications to oihns must be reviewed and approved by the ARB. Plan Accepted with Specific Conditions - The plan was accepted with specific conditions. The homeowner should review the conditions and if ia agreement sign the conditions form and submit it to the ARB. Plan Dented with Explanation - If the homeowner's plan was'denied, an explanation will be provided. In many cases, the ARB will recommend one or more alternative solutions. If the homeowner is receptive to one of these solutions, they simply need to resubmit a Change Request Form detailing the plan within 60 days. Plan Pending - If a plan was submitted incomplete, the homeowner will be notified and the plan will be held'until the required documentation has been received. ARB's Right to Verify Construction in Accordance wtth Approved Plans While under construction or after completion, the ARB does reserve the right to review approved plen~ to make certain the actual construction adheres to the approved plan. Violation Fines The discretionary powers of the ARB are also coupled with the ability to establish and levy fines · and penalties for noncompliance and, with the cooperation of the Board of Directors of the Association, also include the right to suspend membership fights, including the right to vote or to use the recreational facilities, if applicable. Although not limited to the following, 3 "noncompliance" would include the failure to obtain approval of a new Structure in conformance with approved plans. Homeowners who are in violation of the Decl .a~. tion and the Standards set forth in this document will be notified in writing of the violation and' will be fined and penalized in accordance with the Declaration. Disclaimers Approval of any Structure by the ARB is in no W~y a certification that the Structure has been built in accordance with any govemmental rules or that the Structure complies with sound · building practices. Homeowners are required by law to obtain a building permit for all new construction. For information on obtaining a building permit in contact: Peachtree City Building Department at (770)487-8901. These Architectural Standards'set forth herein have not been reviewed for en~n~erlng or structural design or quality of materials. In fact, it is very likely that certain standards have been adopted solely or/the basis of aesthetic consideratiofis. Therefore, no one .should use or rely upon these Architectural Standards as standards for structural integrity or soundness of design for any construction or modification of a Structure or for ensuring compliance of any activity or construction with building codes, zoning regulations and other gnvcmmental requirements. These things must be determined by, and are the sole responsibility of, each homeowner within the Community. Please remember that, like the Architectural Standards, plin~ and specifications are not reviewed for engineering or structural design or quality materials. By approving such plans and specifications, neither Declarant, the Association, the ARB, the Board, nor the officers, directors, members, employees and agents of any of them shall be liable in damages to anyone submitting plans and specifications to any of them for approval,' or to any homeowner of property affected by the Declaration by reason of mistake in judgement, negligence or nonfeasance arising out of or in connection with the approval or disapproval or failure to approve or disapprove any such plans or specifications. It is the sole responsibility of the homeowner to ensure that Structures are safe. Approval of any · type of Structure including children's playsets by the ARB in no way guarantees the safety of the individual. In accordance with the Declaration, every person who submits plans or specifications, and every homeowner has agreed that they will not bring any action or suit against Declarant, the Association, the ARB, the Board or the officers, directors, members, employees and agents of any of them to recover any such damages. II. EXTERIOR STANDARDS Construction All construction requires the homeowner to complete a Request for Change Form and a site visit from members of the ARB. The purpose of the visit is to ensure that the construction adheres to ARB standards and is in hacaiony with the external design and general quality of the Community. .. Driveways/Wallovays Any changes to existing or new hardscapes'.~cluding, but not limited to, driveways, wallcways and patios, require specific approval of the ARB prior to construction. A prOfessional contractor must complete all hardscape construction. Doors/Windows/Shutters Any alterations to the exterior of the hoUSe including, b. ut not limited to, doors, shutters, trim and exterior siding must be approved by the ARB. ' ' Ail window treatments facing the street must be lined in white to give the Comm,mlty a cOmmon look from the outside. The type of window treatments may include, but is not limited to: a white sheer, white blinds, white plantation shutters or white-lined curtains. Stained glass windows and glass blocks are not permitted in doors or windows that are visible from the street. AIl requests for lead glass doors or windgws should be submitted to the ARB. Exterior Lighting All exterior lighting shall be consistent with the character established in Wilahire Estates and be limited to the minimum necessary for safety, identification and decoration. Outside light posts should remain black in color. Colored lens, lamps or buIbs of any type are not pevnltted. Any additional exterior lighting must be approved by the ARB. Paint/Siding/Brick/Roof All alterations to the exterior color of the house.including, but not limited to, doors, shutters, trim, brick and siding must be approved by the ARB. New roofs should follow the same style and color standard originally installed by the Builder. The roof should include at least a 20-year shingle warranty and all exceptions must be approved by the ARB. Mail Boxes/Street Numbers All mailboxes should follow one common design. The mailbo~ ah. all include only the house number and be located aa prescribed by the United States Postal' Service. To r~la~e any damaged or missing parts of your mailbox, contact the ARB for assistance. Street numbers or surnames are not pem~itted on th6 curb or posted on any pa~t of the house, Deeks/P~io~a~ee Work All decks should remain natural in color, be made of pressure-treated pine, be located on. the back of the house and not extend out past the sides of the house. Any variance from this standard must be approved by the ARB. AIl plans to build new or expand existing decks, patios and lattice work must be submitted to the ARB for approval. Also, homeowners shall submit a landscape plan to address areas under and around the deck. Storage areas'of any type require the approval of the ARB and must be submitted with a specific landscape plan to shield as much of the storage area as possible. Fences In general, fences are not encouraged within Wilahire Estates. Hedges, beams or other landscaping alternatives are preferred. Invisible electrical fences for dogs are pre-approved. Fences are permitted in the rear _Fard .onl.¥, require 'the homeowner to obtain appropriate governmental authorities, and $ubmit writte~ governmental approval, together with a detailed plan to the ARB for approval. Submissions should include a complete description of the fence, materials and a site plan showing the fence location ia relationship to property 'lines. When submitting a request for a new fence, homeowners shall also include a landscape plan that is focused at hiding as.much of the fence ~om neighbors as possible. Ail proposed fences must follow the ARB fence standards as def'med below: -Privacy & picket fences (unpainted or natural stain) with convex scalloped.top --Ten foot (10') sections -Six foot (6') maximum height -Good side must show out -Natural finish -Natural sealer encouraged Detached Structures. ArbOrs/swings are pem~itted in rear yard only and must be located where it will have minimum impact on adjacent properties and streets. Homeowners are encouraged to include a landscaping plan with the arbors/swings to minimize the neighboring view. All lawn furnishings and Structures including, but not limited to, bird baths, frog ponds, artificial plants, bird houses, rock gardens or similar types of accessories must .b.e located in the rear of the yard only and require ARB approval. ' All doghouses must be approved by the ARB. Homeowners must submit all detailed plans including site layout, material type, color and landscaping plan. Emphasis will be placed on the consideration of views of tho doghouse from adjacent prop.erties and the street. Doghouses will be pen, ltted only in the rear yard and must be lod~ted close to the house to provide minimum visual impact. Exterior colors must relate to'. the exterior of the house or be of neutral colors. IIL LANDSCAPE STANDARDS Developing a Landscape Plan Homeowners are encouraged to develop a long-range (3-9 months) landscape plan to be reviewed by the ARB. Many professional landscape companies provide 'landscaping planning services for a reasonable fee. Professional assistance'is encouraged to assist in reducing plant loss. The landscape plan should be detailed and include such items as plant type, size, quantity, estimated time to complete project and the physical location of each plant. While many landscaping plans can be all encompassing, please limit change requests to work that can be completed in three months. Lawns All front and side lawns shall be Bermuda sod to ensure' consistency in the Community. Rear yards may be either sod, or seeded with Bermuda or Fescue. Pine Islands/Trees/Bushes All new or expansion of existing islands or beds require a landscape plan to be submitted for approval. No landscape plan is required to plant existing islands or beds. Pine islands should be maintained regularly with fresh pinestraw and edging. Landscaping should.relate to the existing ten-ain.and natural features of the Lot, utilizing plant m~terials native to the Southeastern United States. The preferred landscape bed edging is either a neat 4" - 6" deep trench or natural living plant life. All plant beds will be covered with pine straw, natural chopped bark or mulch. Pocks, boulders, stones, bricks or wood blocks are not permitted to line or cover islands/beds that are visible from the street. Landscaping walls require ARB approval. Removal of Trees No treo with a diameter greater than 4" (measured 2' from the ground).may be removed without written permission from Peachtree City which must be obtained prior;to requesting pemfission of the ARB. The removal of live branches greater than 8' above the ground also requixes ARB written approval. No trees shall be removed from any nondisturbance buffer o.r common areas. a~ECREATIONAL EQUIPMENT ST, d2VDARDS Children Playsets/Btkes/Toys Children's play equipment or swings must be located where it will have mlniraum vis~:a! impact on adjacent properties and streets. All pla)set equipment must be approved by the'ARB. A.ll children's bikes and toys shall be placed out of public view when not in use to have minimum impact on neighbor's and adjacent propertieg. No permanent basketball goals or posts are pe~a~itted. Mobile basketball goals are permitted and should be stored out of public view when not in use. Pools/Spas/Whirlpools " Pemianent aboveground pools of any type are not permitted. All in-ground pools, spas or whirlpools must be approved by the ARB. Homeowners must submit a detailed plan including site layont,, fencing and landscaping to obtain approval. All pump, filter, etc. equipment for pools must be located where it will not cause a nuisance to neighbors and must be screened from view with landscaping. In-ground pools, spas and whirlpools are permitted, but must fit naturally into the topography of the proposed Lot. The pooFspa/whirlpool must also be located to provide minimum visual impact to the surrounding properties and streets. Pool enclosures are not permitted. V. MISCELLANEOUS ITEMS Flags/Flagpoles Decorative flags cannot be visible from the front of the house. Decorative flags can be placed in the rear of the house on a pole attached to either the deck or house, where they have minimum visual impact to the surrounding properties and streets. Stand-alone:,.flagpoles are not pem,ltted.. Common Areas/Signs No temporary sign is pem~itted in any common ground area for a period greater than 24 hours and must be approved by the ARB prior to installation. Any permanent sign placed on common ground must be approved by the AP,.B. ~lp£~e ndix ~1 ' Blank ~lltB Request for Change Forms Yt~ilshire Estates, Peachtree City, GA WILSHIRE ESTATES ARCHITECTURAL REVIEW BOARD REQUEST FOR C~*ANGE DATE:, HOM~OWN~P.(S) NAME(S): ADDRESS: PHONE NUMBER: LOT #: CONTRACTOR NAME: PHONE NUMBER: DESCRIPTION OF IMPROVEMENT PROPOSED: (USE REVERSE S]I)B IF MORE SPACE IS NEEDED FOR DESCRIPTION) ALL SUBMISSIONS MUST BE ACCOMPANIED WITH THF. FOLLOWING: 1) 2) 3) Architectural drawing and / or pictures; and Property survey showing improvement(s); and Description and samples of materials; and Evidence of governmental approval if applicable. PROPOSED COMPLETION DATE: NOTE: REMEMBER TO ALLOW A MINIMUM OF THIRTY (30) DAYS AFTER SUBMISSION TO THE ARB. PLEASE SEND COMPLETE REQLr~ST PACKAGE TO: Wilshire Estates ARB ATTN: ARB Coordinator" 100 Governor'S Trace Suite 110. Fayetteville, GA 30215 IMPORTANT NOTICE: FOR YOUR PROTECTION, INQUIRE AND OBTAIN CITY AND/OR COUNTY PERMITS BEFORE SUBMITTING REQUESTS FOR APPROVAl · TO THE ARB. APPROVAL OF ANY STRUCTURE BY TI~ ARB IS IN NO WAY A CERTIFICATION · THAT THE STRUCTURE HAS BEEN BUILT IN ACCORDANCE WITH ANY GOVERNMENTAL REGULATION(S) OR THAT ~ STRUCTURE CO1VIPLI-F~S .. WITH SOUND BUILDING PRACTICE OR DESIGN. f NEITHER DECLARANT, THE ASSOCIATION, THE ARB, Tlq~. BOARD, NOR THE OFFICERS, DIRECTORS, MEMBERS, EMPLOYEES AND AGENTS OF ANY OF. THEM SHALL BE LIABLE IN DAMAGES TO ANYONE SUBMITTING PLANS AND SPECIFICATIONS TO ANY OF THEM FOR APPROVAL, OR TO ANY OWNER OF PROPERTY AFFECTED BY THE DECLARATION BY REASON OF MISTAKE IN JUDGEMENT, NEGLIGENCE OR NONFEASANCE' ARISING OUT OF OR IN CONNECTION WITH THE APPROVAL OR DISAPPROVAL OR FAII-URE TO APPROVE OR DISAPPROVE ANY SUCH PLANS OR SPECIFICATIONS; NOR · SHALL ANY OR THEM ASSUME LIABILITY OR RESPONSIBILITY FOR ANY DEFECT IN ANY STRUCTURE CONSTRUCTED FROM ANY SUCH PLANS AND SPECIFICATIONS. Wilshir~ Estates homeowner acknowledges that heJshe has read all pages of this form: · HOMEOWNER'S SIGNATURE HOMEOWNER'S SIGNATURE DATE RECEIVED