DECLARATION OF COVENANTS, CONDITIONS, AND RESTRICTIONS
ARTICLE I - DEFINITIONS
1.1 Area of Common Responsibility
1.2 Articles of Incorporation; Articles
1.4 Board of Directors; Board
1.6 Class "B" Control Period
1.7 Common Area
1.8 Common Expenses
1.10 Community-Wide Standard
1.12 General Assessment
1.13 Governing Documents
1.14 Land Plan
1.16 Mortgage; Mortgagee
1.19 Record, Recording, or Recorded
1.20 Special Assessment
1.21 Specific Assessment
1.22 Supplemental Declaration
1.24 Use Restrictions and Rules
ARTICLE II - PROPERTY RIGHTS
2.1 Common Area
2.2 No Partition
ARTICLE III MEMBERSHIP AND VOTING RIGHTS
3.1 Function of Association
ARTICLE IV - RIGHTS AND OBLIGATIONS OF THE ASSOCIATION
4.1 Common Area
4.2 Personal Property and Real Property for Common Use
4.4 Implied Rights; Board Authority
4.5 Governmental Interests
4.7 Dedication of Common Areas
ARTICLE V - MAINTENANCE
5.1 Association's Responsibility
5.2 Owner's Responsibility
5.3 Standard of Performance
ARTICLE VI - INSURANCE AND CASUALTY LOSSES
6.1 Association Insurance
6.2 Owners' Insurance
ARTICLE VII - ANNEXATION AND WITHDRAWAL OF PROPERTY
7.1 Annexation Without Approval of Membership
7.2 Annexation With Approval of Membership
7.3 Withdrawal of Property
7.4 Additional Covenants and Easements
ARTICLE VIII - ASSESSMENTS
8.1 Creation of and Obligation for Assessments
8.2 Declarant's Obligation for Assessments
8.3 Computation of General Assessments
8.4 Reserve Budget and Capital Contribution
8.5 Special Assessments
8.6 Specific Assessments
8.7 Lien for Assessments
8.8 Date of Commencement of Assessments
8.9 Failure to Assess
8.10 Exempt Property
ARTICLE IX - ARCHITECTURAL STANDARDS
9.2 Architectural Review
9.3 Standards and Procedures
9.4 No Waiver of Future Approvals
9.6 Limitation of Liability
ARTICLE X - USE RESTRICTIONS AND RULES
10.1 Plan of Development; Applicability; Effect
10.2 Authority to Promulgate Use Restrictions and Rules
10.3 Owners' Acknowledgment
10.4 Rights of Owners
ARTICLE XI - EASEMENTS
11.1 Easements of Encroachment
11.2 Easements for Utilities, Etc
11.3 Easements for Maintenance and Flood Water
11.4 Easements to Serve Additional Property
11.5 Right of Entry
11.6 Landscaping and Signage Easements
ARTICLE XII - MORTGAGEE PROVISIONS
12.1 Notices of Action
12.2 No Priority
12.3 Notice to Association
12.4 Failure of Mortgagee to Respond
ARTICLE XIV - DISPUTE RESOLUTION AND LIMITATION ON LITIGATION
14.1 Agreement to Avoid Litigation
14.3 Mandatory Procedures
14.4 Allocation of Costs of Resolving Claims
14.5 Enforcement of Resolution
ARTICLE XV - GENERAL PROVISIONS
15.5 Cumulative Effect; Conflict
15.7 Notice of Sale or Transfer of Title
The terms in this Declaration and the attached exhibits shall generally be given their natural, commonly accepted definitions except as otherwise specified. Capitalized terms shall be defined as set forth below.
1.1. "Area of Common Responsibility": The Common Area, together with such other areas, if any, for which the Association has or assumes responsibility pursuant to the terms of this Declaration, any Supplemental Declaration or other applicable covenant, contract, or agreement.
1.2. "Articles of Incorporation" or "Articles": The Articles of Incorporation of Nob Ridge Homeowners Association, Inc., as filed with the Georgia Secretary of State.
1.3. "Association": Nob Ridge Homeowners Association, Inc., a Georgia non-profit corporation, its successors or assigns.
1.4. "Board of Directors" or "Board": The body responsible for administration of the Association, selected as provided in the By-Laws and generally serving the same role as the board of directors under Georgia corporate law.
1.5. "By-Laws": The By-Laws of Nob Ridge Homeowners Association, Inc., attached as Exhibit "E," as they may be amended.
1.6. "Class "B" Control Period": The period of time during which the Class "B" Member appoints a majority of the members of the Board of Directors as provided in Section 3.3 of the By-Laws.
1.7. "Common Area": All real and personal, including easements, which the Association owns, leases, or otherwise holds possessor or use rights in for the common use and enjoyment of the Owners.
1.8. "Common Expenses": The actual and estimated expenses incurred, or anticipated to be incurred, by the Association, including any reasonable reserve, as the Board may find necessary and appropriate.
1.9. "Community": The real property described on Exhibit "A," together with such additional property as is subjected to this Declaration in accordance with Article VII.
1.10. "Community-Wide Standard": The standard of conduct, maintenance, or other activity generally prevailing throughout the Community as initially established by Declarant. After the Class "B" Control Period terminates, such standard may be more specifically determined by the Board of Directors.
1.11. "Declarant": The Williamscraft Group Inc., a Georgia corporation, or any successor, successor-in-title, or assign who takes title to any portion of the property described on Exhibit "A" or "B" for the purpose of development and/or sale and, except in the case of foreclosure, who is designated as Declarant in a Recorded instrument executed by the immediately preceding Declarant. Upon such designation of successor Declarant, all rights and obligations of the former Declarant in and to such status as "Declarant" hereunder shall cease, it being understood that as to all of the Community, there shall be only one person or legal entity entitled to exercise the rights and powers of "Declarant" at any one time.
1.12. "General Assessment": Assessments levied on all Units subject to assessment under Article VIII to fund Common Expenses for the general benefit of all Units, as more particularly described in Sections 8.1 and 8.3.
1.13. "Governing Documents": A collective term referring to this Declaration and any applicable Supplemental Declaration, the By-Laws, the Articles, any architectural or design standards as provided herein, and the Use Restrictions and Rules, as they may be amended.
1.14. "Land Plan": The land use plan for the development of Nob Ridge approved by Cobb County, Georgia, as it may be amended from time to time, which plan includes the property described on Exhibit "A" and all or a portion of the property described on Exhibit "B." Inclusion of property on the Land Plan shall not, under any circumstances, obligate Declarant to subject such property to this Declaration, nor shall the exclusion of property described on Exhibit "B" from the Land Plan bar its later annexation in accordance with Article VII.
1.15. "Member": A Person subject to membership in the Association pursuant to Section 3.2.
1.16. "Mortgage": A mortgage, a deed of trust, a deed to secure debt, or any other form of security instrument affecting title to any Unit. A "Mortgagee" is a beneficiary or holder of a Mortgage.
1.17. "Owner": One or more Persons who hold the record title to any Unit, but excluding in all cases any party holding an interest merely as security for the performance of an obligation. If a Unit is sold under a Recorded contract of sale, and the contract specifically so provides, the purchaser (rather than the fee owner) will be considered the Owner.
1.18. "Person": A natural person, a corporation, a partnership, a trustee, or any other legal entity.
1.19. "Record," "Recording," or "Recorded": The filing of a legal instrument in the records of the County Clerk's Office, Superior Court, Cobb County, Georgia, or such other place as may be designated as the official location for recording deeds, plats, and similar documents affecting title to real estate.
1.20. "Special Assessment": Assessments levied in accordance with Section 8.5
1.21. "Specific Assessment": Assessments levied in accordance with Section 8.6.
1.22. "Supplemental Declaration": A Recorded instrument pursuant to Article VII which subjects additional property to this Declaration and/or imposes, expressly or by reference, additional restrictions and obligations on the land described in such instrument.
1.23. "Unit": A portion of the Community, whether improved or unimproved, which is intended for development, use, and occupancy as a residence for a single family. The term shall include within its meaning, by way of illustration but not limitation, each numbered lot shown on a Recorded subdivision plat with respect to any portion of the Community, together with the structures, if any, constructed thereon, as well as vacant land intended for further subdivision, but shall not include Common Areas or property dedicated to the public.
In the case of a portion of the Community intended and suitable for subdivision into single-family lots but as to which no subdivision plat has been Recorded, such property shall be deemed to be a single Unit until such time as a subdivision plat is Recorded with respect to all or a portion of the property. Thereafter, the portion encompassed by such plat shall contain the number of Units determined as set forth in the preceding paragraph and any portion not platted shall continue to be treated as a single Unit.
1.24. "Use Restrictions and Rules": Those use restrictions and rules affecting the Community, which may be adopted, modified, and repealed as set forth in Article X. The initial Use Restrictions and Rules are set forth on Exhibit "C."
2.1. Common Area.
Every Owner shall have a right and nonexclusive easement
of use, access, and enjoyment in and to the Common Area, subject to:
This Declaration and any other applicable covenants;
Any restrictions or limitations contained in any deed conveying such property to the Association;
The right of the Board and the membership to adopt rules regulating the use and enjoyment of the Common Area, including rules limiting the number of, or prohibiting the use by, guests who may use the Common Area;
The right of the Board to suspend the right of an Owner to use recreational facilities within the Common Area (i) for any period during which any charge against such Owner's Unit remains delinquent, and (ii) for a period not to exceed 30 days for a single violation or for a longer period in the case of any continuing violation, of the Governing Documents after notice and a hearing pursuant to Section 3.24 of the By-Laws;
The right of the Association, acting through the Board, to dedicate or transfer all or any part of the Common Area;
The right of the Board to impose reasonable membership requirements and charge reasonable admission or other use fees for the use of any recreational facilities situated upon the Common Area;
The right of the Board to permit use of any recreational facilities situated on the Common Area by persons other than Owners, their families, lessees, and guests upon payment of such use fees as the Board may establish;
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; and
The right of Declarant to use such property without payment or charge for such purposes as Declarant, in its sole discretion, deem necessary and proper. Any Owner may extend his or her right of use and enjoyment to the members of his or her family, lessees, and social invitees, as applicable, subject to reasonable regulation by the Board. An Owner who leases his or her Unit shall be deemed to have assigned all such rights to the lessee of such Unit.
2.2. No Partition.
Except as permitted in this Declaration, there shall be no
judicial partition of the Common Area. No Person shall seek any judicial partition unless the portion of the Common Area which is the subject of such partition action has been removed from the provisions of this Declaration. This Article shall not prohibit the Board from acquiring and disposing of tangible personal property nor from acquiring and disposing of real property which may or may not be subject to this Declaration.
If any part of the Common Area shall be taken or conveyed
in lieu of and under threat of condemnation by any authority having the power of condemnation or eminent domain, then such award or net funds shall be disbursed to the Association and used for such purposes as the Board shall determine.
MEMBERSHIP AND VOTING RIGHTS
3.1. Function of Association.
The Association shall be the entity responsible for
management, maintenance, operation, and control of the Area of Common Responsibility. The Association shall be the primary entity responsible for enforcement of this Declaration and such reasonable rules regulating use of the Community as the Board or the membership may adopt pursuant to Article X. The Association shall also be responsible for administering and enforcing the architectural standards and controls set forth in the Governing Documents. The Association shall perform its functions in accordance with the Governing Documents and all applicable laws.
Every Owner shall be a Member of the Association. There
shall be only one membership per Unit. If a Unit is owned by more than one Person, all co-Owners shall share the privileges of such membership, subject to reasonable Board regulation and the restrictions on voting set forth in Section 3.3 and in the By-Laws, and all such co-Owners shall be jointly and severally obligated to perform the responsibilities of Owners. The membership rights of an Owner which is not a natural person may be exercised by any officer, director, partner, or trustee, or by the individual designated from time to time by the Owner in a written instrument provided to the Secretary of the Association.
The Association shall have two 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 equal vote for each Unit in which they hold the interest required for membership under Section 3.2; provided, there shall be only one vote per Unit. No vote shall be exercised for any property which is exempt from assessment under Section 8.10.
In any situation where there is more than one Owner of a Unit, the vote for such Unit 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 Unit's vote shall be suspended if more than one Person seeks to exercise it.
(b) Class "B". The sole Class "B" Member shall be Declarant. The Class "B"
Member may appoint at least a majority of the members of the Board of Directors during the Class "B" Control Period, through the procedures prescribed in Section 3.3 of the By-Laws, and it may exercise additional rights as are specified elsewhere in the Governing Documents. The Class "B" membership shall terminate at the earlier of: (i) when 100% of the property described on Exhibit "A," and any property described on Exhibit "B" that is anticipated to be developer pursuant to the Land Plan, have been developed and conveyed to Owners for residential occupancy; (b) December 31, 2010; or (c) when Declarant voluntarily terminates such membership earlier by Recording a written notice of termination.
If Declarant voluntarily terminates its Class "B" membership prior to the sale of all of the property described on Exhibits "A" and "B," Declarant shall become a Class "A" Member entitled to one Class "A" vote for each Unit which it owns. If Declarant voluntarily terminates the Class "B" Control Period prior to the termination of the Class "B" membership, the Class "B" Member shall have a right to disapprove actions of the Board and committees as provided in Section 3.19 of the By-Laws.
RIGHTS AND OBLIGATIONS OF THE ASSOCIATION
4.1. Common Area.
The Association, subject to the rights of the Owners set forth in this Declaration, shall manage and control the Common Area and all improvements thereon (including, without limitation, landscaping, furnishings, equipment, and other personal property of the Association used in connection with the Common Areas), and shall keep it in good, clean, attractive, and sanitary condition, order, and repair, pursuant to this Declaration and the By-Laws and consistent with the Community-Wide Standard. The Board is specifically authorized, but not obligated, to retain or employ professional management to assist in carrying out the Association's responsibilities under the Governing Documents, the cost of which shall be a Common Expense.
4.2. Personal Property and Real Property for Common Use.
The Association, through action of its Board, may acquire, hold, and dispose of tangible and intangible personal property and real property. Declarant and its designees may convey to the Association improved or unimproved real estate, or interests in real estate, located within the properties described in Exhibit "A" or "B," personal property, and leasehold and other property interests. The Association shall accept such property and thereafter maintain it at its expense for the benefit of its Members, subject to any restrictions set forth in the deed or other instrument transferring such property to the Association. Declarant shall not be required to make any improvements whatsoever to the property conveyed to the Association, including, without limitation, dredging or removing silt from lakes or ponds. Upon Declarant's written request, the Association shall reconvey to Declarant any unimproved portions of the Community 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.
The Association may impose sanctions for violations of the Governing Documents in accordance with procedures set forth in the By-Laws, including reasonable monetary fines and suspension of the right to vote and to use any recreational facilities within the Common Area. In addition, in accordance with Section 3.24(d) of the By-Laws, the Association may exercise self-help to cure violations and may suspend any services it provides to the Unit of any Owner who is more than 30 days delinquent in paying any assessment or other charge due to the Association. All remedies set forth in the Governing Documents shall be cumulative of any remedies available at law or in equity. In any action to enforce the provisions of this Declaration or Association rules, if the Association prevails it shall be entitled to recover all costs, including, without limitation, attorney’s 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 reasonably 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 as a waiver of the right to enforce such provision under other circumstances or stop the Association from enforcing any other covenant, restriction, or rule.
The Association, by contract or other agreement, may enforce county and city ordinances, if applicable, and permit local governments to enforce their ordinances within the Community for the benefit of the Association and its Members.
4.4. 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 the Governing Documents, or by law, all rights and powers of the Association may be exercised by the Board without a vote of the membership.
4.5. Governmental Interests.
For so long as Declarant owns any property described on Exhibit "A" or "B," Declarant may designate sites within the Community for fire, police, and utility facilities, public schools and parks, and other public or quasi-public facilities. The sites may include Common Areas, in which case the Association shall take whatever action is required with respect to such site to permit such use, including conveyance of the site, if so directed by Declarant.
The Association shall indemnify every officer, director,and committee member, including members of the Architectural Review Committee established pursuant to Article IX, against all damages and expenses, including counsel fees, reasonably 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, or committee member, except that such obligation to indemnify shall be limited to those actions for which liability is limited under this Section and Georgia law.
The officers, directors, and committee members shall not be liable for any mistake of judgment, negligent or otherwise, except for their own individual willful misfeasance, malfeasance, misconduct, or bad faith. The officers and directors 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 or directors may also be Members of the Association). The Association shall indemnify and forever hold each such officer, director, and committee member harmless from any and all liability to others on account of any such contract, commitment or action. This right to indemnification shall not be exclusive of any other rights to which any present or former officer, director, or committee member may be entitled. The Association shall, as a Common Expense, maintain adequate general liability and officers' and directors' liability insurance to fund this obligation if such insurance is reasonably available.
4.7. Dedication of Common Areas.
The Association may dedicate portions of the Common Areas to Cobb County, Georgia, or to any other local, state, or federal governmental or quasi-governmental entity.
The Association may, but shall not be obligated to, maintain or support certain activities within the Community designed to make the Community safer than it otherwise might be. Neither the Association nor Declarant shall in any way be considered insurers or guarantors of security within the Community, 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 security system or measures, including any mechanism or system for limiting access to the Community, cannot be compromised or circumvented, nor that any such systems or security measures 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 Unit that the Association, the Board of Directors and committees, and Declarant are not insurers and that each Person using the Community assumes all risks of personal injury and loss or damage to property, including Units and the contents of Units, resulting from acts of third parties.
5.1. Association's Responsibility.
(a) The Association shall maintain and keep in good repair the Area of Common Responsibility, which shall include, but need not be limited to:
(i) the Common Area, recreational amenities, open space, and all landscaping, signage, lighting, irrigation systems and equipment, fences, walls, and other structures and improvements, sidewalks, paths, and trails, situated upon the Common Area;
(ii) landscaping and signage within public rights-of-way within the Community;
(iii) any lakes, ponds, streams and/or wetlands located within the Community and all detention ponds (including the pond easement and landscaping easement), drainage systems, storm water retention or detention systems for the Community, including any retaining walls, bulkheads, or dams (earthen or otherwise) as more particularly shown on the final plat for Nob Ridge Recorded or to be Recorded;
(iv) such portions of any additional property included within the Area of Common Responsibility as may be dictated by this Declaration, any Supplemental Declaration, or any contract or agreement for maintenance thereof entered into by the Association; and
(v) any property and facilities owned by Declarant and made available, on a temporary or permanent 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 to be maintained by the Association unless and until such time as Declarant revokes such privilege of use and enjoyment by written notice to the Association.
The Association may maintain other property which it does not own, including, without limitation, property dedicated to the public, if the Board of Directors determines that such maintenance is necessary or desirable to maintain the Community-Wide Standard.
(b) There are hereby reserved to the Association easements over the Community
as necessary to enable the Association to fulfill such responsibilities. The Association shall maintain the facilities and improvements within the Area of Common Responsibility in continuous operation, except for any periods necessary, as determined in the Board's sole discretion, to perform required maintenance or repairs, unless Members representing 75% of the Class "A" votes in the Association and the Class "B" Member, if any, agree in writing to discontinue such operation.
Except as provided above, the Area of Common Responsibility shall not be reduced by amendment of this Declaration or any other means except with the prior written approval of Declarant as long as Declarant owns any property described on Exhibit "A" or "B" of this Declaration.
(c) Except as otherwise specifically provided herein, all costs associated with maintenance, repair, and replacement of the Area of Common Responsibility shall be a Common Expense to be allocated among all Units as part of the General Assessment, without prejudice to the right of the Association to seek reimbursement from the owner(s) of, or other Persons responsible for, certain portions of the Area of Common Responsibility pursuant to this Declaration, other Recorded covenants, or agreements with the owner(s) thereof.
5.2. Owner's Responsibility.
Each Owner shall maintain his or her Unit and all structures, parking areas, and other improvements comprising the Unit in a manner consistent with the Community-Wide Standard. Units upon which a portion of the detention basin lies, as shown on the Land Plan or any final plat for Nob Ridge Recorded or to be Recorded, shall be maintained by the Owner up to the detention basin water's edge. The water and land beneath the surface of the detention basin water shall be the maintenance responsibility of the Association as set forth in this Declaration.
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 levy a Specific Assessment of all costs incurred by the Association against the Unit and the Owner. 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.
5.3. Standard of Performance.
Unless otherwise specifically provided herein or in other instruments creating and assigning such maintenance responsibility, responsibility for maintenance shall include responsibility for repair and replacement, as necessary. All maintenance shall be performed in a manner consistent with the Community-Wide Standard and all applicable covenants. The Association shall not be liable for any damage or injury occurring on, or arising out of the condition of, property which it does not own except to the extent that it has been negligent in the performance of its maintenance responsibilities.
INSURANCE AND CASUALTY LOSSES
6.1. Association Insurance.
(a) Required Coverages. The Association, acting through the 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 coverage as are reasonably available:
(i) Blanket property insurance covering the full replacement cost of all insurable improvements from "risks of direct physical loss" for the Common Area and on other portions of the Area of Common Responsibility to the extent that the Association has responsibility for maintenance, repair, and/or replacement in the event of a casualty, regardless of ownership.
(ii) Commercial general liability insurance with such limits and terms as the board may determine reasonable;
(iii) Such other insurance such as workers compensation, directors and officers liability coverage, and fidelity insurance as the Board, in the exercise of its business judgment, determines advisable.
(b) Policy Requirements. The policies may contain a reasonable deductible. In
the event of an insured loss, the deductible shall be treated as a Common Expense; provided, if the Board reasonably determines, after notice and an opportunity to be heard in accordance with Section 3.24 of the By-Laws, that the loss is the result of the negligence or willful misconduct of one or more Owners, their guests, invitees, or lessees, then the Board may levy a Specific Assessment of the full amount of such deductible against such Owner(s) and their Units.
All insurance coverage obtained by the Board shall:
(i) be written with a company authorized to do business in the State of
Georgia which satisfies the requirements of the Federal National Mortgage Association, or such other secondary mortgage market agencies or federal agencies as the Board deems appropriate;
(ii) be written in the name of the Association as trustee for the benefited
(iii) not be brought into contribution with insurance purchased by Owners,
occupants, or their Mortgagees individually.
In addition, the Board shall be vested with exclusive authority to adjust losses; provided, 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.
Immediately after damage or destruction to all or any part of the Community covered by insurance written in the name of the Association, the Board or its duly authorized agent shall file and adjust all insurance claims and obtain reliable and detailed estimates of the cost of repair or reconstruction. Any damage to or destruction of the Common Area shall be repaired or reconstructed unless the Members representing at least 67% of the total Class "A" votes in the Association, and the Class "B" Member, if any, decide not to repair or reconstruct. If the Association determines that the damage or destruction to the Common Area shall not be repaired or reconstructed and no alternative improvements are authorized, the affected property shall be cleared of all debris and ruins and thereafter shall be maintained by the Association in a neat and attractive, landscaped condition consistent with the Community-Wide Standard.
Any insurance proceeds remaining after paying the costs of repair or reconstruction, or after such settlement as is necessary and appropriate, shall be retained by and for the benefit of the Association and placed in a capital improvements account. This is a covenant for the benefit of Mortgagees and may be enforced by the Mortgagee of any affected Unit.
If insurance proceeds are insufficient to cover the costs of repair or reconstruction, the Board of Directors may, without a vote of the Members, levy a Special Assessment to cover the shortfall.
6.2. Owners' Insurance.
By virtue of taking title to a Unit, each Owner covenants and agrees with all other Owners and with the Association to carry property insurance for the full replacement cost of all insurable improvements on his or her Unit, less a reasonable deductible. Each Owner further covenants and agrees that in the event of damage to or destruction of structures on or comprising his Unit, the Owner shall proceed promptly to repair or to reconstruct in a manner consistent with the original construction or such other plans and specifications as are approved in accordance with Article IX. Alternatively, the Owner shall clear the Unit of all debris and ruins and maintain the Unit in a neat and attractive, landscaped condition consistent with the Community-Wide Standard. The Owner shall pay any costs which are not covered by insurance proceeds.
ANNEXATION AND WITHDRAWAL OF PROPERTY
7.1. Annexation Without Approval of Membership.
Until all property described on Exhibit "B" has been subjected to this Declaration or ten years after the Recording of this Declaration, whichever is earlier, Declarant may from time to time unilaterally subject to the provisions of this Declaration all or any portion of the real property described in Exhibit "B." Declarant may transfer or assign this right to annex property, provided that the transferee or assignee is the developer of at least a portion of the real property described in Exhibit "A" or "B" and that such transfer is memorialized in a Recorded instrument executed by Declarant.
Such annexation shall be accomplished by Recording a Supplemental Declaration describing the property being annexed. Such Supplemental Declaration shall not require the consent of the Members but shall require the consent of the owner of such property, if other than Declarant. Any such annexation shall be effective upon Recording the Supplemental Declaration unless otherwise provided therein.
Nothing in this Declaration shall be construed to require Declarant or any successor to annex or develop any of the property set forth in Exhibit "B" in any manner whatsoever,
7.2. Annexation With Approval of 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 representing a majority of the Class "A" votes of the Association represented at a meeting duly called for such purpose. In addition, Declarant's consent is required so long as Declarant owns property subject to this Declaration or which may become subject to this Declaration in accordance with Section 7.1.
Such annexation shall be accomplished by Recording a Supplemental Declaration describing the property being annexed. 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 Declarant, if Declarant's consent is required. Any such annexation shall be effective upon Recording unless otherwise provided therein.
7.3. Withdrawal of Property.
Declarant reserves the right to amend this Declaration so long as it has a right to annex additional property pursuant to this Section 7.1, for the purpose of removing any portion of the Community from the coverage of this Declaration, provided such withdrawal is not unequivocally contrary to the Community's overall, uniform scheme of development. Such amendment shall not require the consent of any Person other than the owner of the property to be withdrawn, if not Declarant.
7.4. Additional Covenants and Easements.
Declarant may subject any portion of
the Community to additional covenants and easements by Recording a Supplemental Declaration, concurrent with or after the annexation of the subject property, setting forth such additional covenants and easements. Any such Supplemental Declaration shall require the written consent of the owner(s) of the subject property, if other than 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.
8.1. Creation of, and Obligation for Assessments.
There are hereby created, and the Association is authorized to levy, assessments for the Association's Common Expenses. Such assessments shall commence at the time and in the manner set forth in Section 8.8.
There shall be three types of assessments:
(a) General Assessments as described in Section 8.3;
(b) Special Assessments as described in Section 8.5; and
(c) Specific Assessments as described in Section 8.6. Each Owner, by accepting a deed or entering into a Recorded contract of sale for any portion of the Community, is deemed to covenant and agree to pay these assessments.
(b) Personal Obligation and Lien.
All assessments, together with interest (computed from the due date of such assessment at a rate of 10% per annum or such higher rate as the Board may establish, subject to the limitations of Georgia law), late charges established by Board resolution, costs, and reasonable attorneys' fees, shall be a charge and continuing lien upon each Unit and also shall be the personal obligation of the Person who was the Owner of such Unit at the time the assessment arose. Upon a transfer of title to a Unit, the grantee shall be jointly and severally liable for any assessments and other charges due at the time of conveyance. However, no first Mortgagee who obtains title to a Unit by exercising the remedies provided in its Mortgage shall be liable for unpaid assessments Which accrued prior to such acquisition of title.
The Association shall, upon request, furnish to any Owner liable for any type of assessment a certificate in writing signed by an Association officer setting forth whether such assessment has been paid. Such certificate shall be conclusive evidence of payment. The Association may require the advance payment of a reasonable processing fee for the issuance of such certificate.
Assessments shall be paid in such manner and on such dates as the Board may establish. The Board may provide for 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 Unit and impose special requirements for Owners with a history of delinquent payment. The General Assessment shall be an annual assessment due and payable in advance on the first day of each fiscal year; provided, the Board may by resolution permit payment in two or more installments. If any Owner is delinquent in paying any assessments or other charges levied on his Unit, the Board may accelerate the installments and require all of the General Assessment to be paid in full immediately.
No Owner may exempt himself from liability for assessments by non-use of Common Area, abandonment of his Unit, or any other means. The obligation to pay assessments is a separate and independent covenant on the part of each Owner. No diminution or abatement of assessments or set-off shall be claimed or allowed for any alleged failure of the Association or Board to take some action or perform some function required of it, or for inconvenience or discomfort arising from the making of repairs or improvements, or from any other action it takes,
The Association is specifically authorized to enter into subsidy contracts or contracts for "in kind" contribution of services, materials, or a combination of services and materials with Declarant or other entities for payment of Common Expenses.
8.2. Declarant's Obligation for Assessments.
During the Class "B" Control Period, Declarant shall not be liable for payment of assessments on Units which it owns. However, Declarant may annually elect to, but shall not be obligated to, contribute to the Association the difference between the amount of assessments levied on all other Units subject to assessment and the amount of actual expenditures by the Association during the fiscal year (a "Subsidy"). After termination of the Class "B" Control Period, Declarant shall pay assessments on its unsold Units subject to assessment under Section 8.8 in the same manner as any other Owner.
Any Subsidy may be treated, in Declarant's discretion, as either: a voluntary contribution; an advance against future assessments (if any); or a loan by Declarant to the Association. Subsidy which is treated as a loan may be evidenced by promissory notes from the Association in favor of Declarant. As an alternative to paying a Subsidy, Declarant may cause the Association to borrow funds from a commercial lending institution. at the then prevailing rates for such a loan in the local area of the Community.
Any Subsidy shall be disclosed as a line item in the Common Expense budget and the treatment of such Subsidy shall be made known to the membership. The payment of a Subsidy in any year shall under no circumstances obligate Declarant to continue payment of a Subsidy in future years, unless otherwise provided in a written agreement between the Association and Declarant.
8.3. Computation of General Assessments.
At least 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 capital contribution to establish a reserve fund. General Assessments shall be fixed at a uniform rate for all Units subject to assessment under Section 8.8. Such assessment rate shall be set at a level which is reasonably expected to produce total income for the Association equal to the total budgeted Common Expenses, including reserves. In determining the total funds to be generated through the levy of General Assessments, the Board, in its discretion, may consider other sources of funds available to the Association, including any surplus from prior years and any assessment income expected to be generated from any additional Units.
The Board shall send a copy of the final budget and notice of the amount of the General Assessment for the following year to each Owner at least 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 at least 67% of the Class "A" Members and by the Class "B" Member if such exists. There shall be no obligation to call such a meeting unless a petition for a special meeting is presented to the Board within 10 days of the delivery of the notice of assessment.
If a budget is not adopted for any year, then until such time as a budget is adopted, the budget in effect for the immediately preceding year shall continue for the current year.
8.4. Reserve Budget and Capital Contribution.
The Board may prepare a reserve budget which takes into account the number and nature of replaceable assets within the Area of Common Responsibility, the expected life of each asset, and the expected repair or replacement cost. If established, the Board shall include as a line item in the Common Expense budget a capital contribution in an amount sufficient to permit meeting the projected needs of the Association over the budget period. There shall be no obligation to establish a reserve budget or capital contribution. So long as the Board exercises business judgment in determining the amount or necessity of a reserve, the amount shall be considered adequate. If reserves are not established or are insufficient for the repair or replacement of any capital asset, Special Assessments may be levied.
Upon acquisition of record title to a Unit by the first Owner thereof other than Declarant, a contribution in the amount of $ shall be made by or on behalf of the purchaser to the capital reserve account of the Association. This amount shall be in addition to, not in lieu of, the annual General Assessment and shall not be considered an advance payment of any assessment. This amount shall be deposited into the purchase and sales escrow and disbursed to the Association for use in owning and maintaining the Association's capital assets.
8.5. Special Assessments.
In addition to other authorized assessments, the Association may levy Special Assessments from time to time to cover unbudgeted expenses or expenses in excess of those budgeted. Any Special Assessment which would exceed the amount of the General Assessment in any fiscal year shall require the affirmative vote or written consent of a majority of the total Class "A" votes in the Association, and the affirmative vote or written consent of the Class "B" Member if such exists. 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. Except as otherwise provided in Section 8.8, Special Assessments shall be levied equally on all Units.
8.6. Specific Assessments.
The Association shall have the power to levy Specific Assessments against a particular Unit as follows:
(a) to cover the costs, including overhead and administrative costs, of providing benefits, items, or services to the Unit or its occupants 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, pest control, cable television or utility service, and similar services). Specific 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 Unit into compliance with the terms of this Declaration, any applicable Supplemental Declaration, the By-Laws or rules, or costs incurred as a consequence of the conduct of the Owner or occupants of the Unit, their agents, contractors, employees, licensees, invitees, or guests; provided, the Board shall give the Unit Owner prior written notice and an opportunity for a hearing, in accordance with Section 3.24 of the By-Laws before levying any Specific Assessment under this subsection (b).
8.7. Lien for Assessments.
The Association shall have a lien against each Unit to secure payment of delinquent assessments, as well as interest, late charges, costs of collection, and attorney’s 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
(b) the lien or charge of any first Mortgage of record (meaning any Recorded Mortgage with first priority over other Mortgages) made in good faith and for value. Such lien, when delinquent, may be enforced by suit, judgment, and foreclosure in the same manner as mortgages are foreclosed under Georgia law.
The Association may bid for the Unit at the foreclosure sale and acquire, hold, lease, mortgage, and convey the Unit. While a Unit is owned by the Association following foreclosure: (a) no right to vote shall be exercised on its behalf; (b) no assessment shall be levied on it; and
(c) each other Unit shall be charged, in addition to its usual assessment, its pro rata share of the assessment that would have been charged such Unit had it not been acquired by the Association.
The Association may sue for unpaid assessments and other charges authorized hereunder without foreclosing or waiving the lien securing the same.
The sale or transfer of any Unit shall not affect the assessment lien or relieve such Unit from the lien for any subsequent assessments. However, the sale or transfer of any Unit 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 of a Unit who obtains title pursuant to foreclosure of the Mortgage shall not be personally liable for assessments on such Unit due prior to such acquisition of title. Such unpaid assessments shall be deemed to be Common Expenses collectible from Owners of all Units subject to assessment under Section 8.8, including such acquirer, its successors and assigns.
8.8. Date of Commencement of Assessments.
The obligation to pay assessments shall commence as to each Unit on the first day of the month following the later of: (a) the month in which the Board shall establish the Common Expense budget and levy assessments, or (b) date upon which the Unit is conveyed or transferred from Declarant to an Owner for residential occupancy. The first annual General Assessment levied on each Unit shall be adjusted according to the number of months remaining in the fiscal year at the time assessments commence on the Unit.
8.9. Failure to Assess.
Failure of the Board to fix assessment amounts or rates or to deliver or mail each Owner an assessment notice shall not be deemed a waiver, modification, or a release of any Owner from the obligation to pay assessments. In such event, each Owner shall continue to pay General Assessments on the same basis as during the last year for which an assessment was made, if any, until a new assessment is levied, at which time the Association may retroactively assess any shortfalls in collections.
8.10. Exempt Property.
In addition to those units not subject to assessment under Section 8.8, the following property shall be exempt from payment of assessments:
(a) All Common Area and such portions of the property owned by Declarant as are included in the Area of Common Responsibility pursuant to Section 5.1; and
(b) Any property dedicated to and accepted by any governmental authority or public utility.
No structure or thing shall be placed, erected, or installed upon any Unit, and no improvements (including staking, clearing, other site work, exterior alteration of existing improvements, painting or modifying fences, and planting or removal of landscaping materials) shall take place except in compliance with this Article. Any Owner may remodel, paint, or redecorate the interior of structures on his Unit without approval. However, modifications to the interior of screened porches, patios, and similar portions of a Unit visible from outside the structures on the Unit shall be subject to approval. No approval shall be required to repaint the exterior of a structure in accordance with the originally approved color scheme or to rebuild in accordance with originally approved plans and specifications. This Article shall not apply to the activities of Declarant or the Association.
9.2. Architectural Review.
(a) By Declarant. Until 100% of the Units anticipated under the Land Plan have been developed and conveyed to Owners other than Declarant and contain dwellings for which certificates of occupancy have been issued, Declarant shall have exclusive authority to administer and enforce architectural controls under this Article and to review and act upon all applications for original construction within the Community. There shall be no surrender of this right prior to that time except by a written instrument specifically assigning all or a portion of such right in Recordable form executed by Declarant.
(b) Architectural Review Committee. Upon the expiration or assignment of all or a portion of Declarant's authority to control architectural review for all or a portion of the Community, the Board shall create and appoint an Architectural Review Committee ("ARC"). The ARC shall consist of at least three, but not more than five, persons who shall serve and may be removed in the Board's discretion; provided, as long as Declarant owns any property described on Exhibit "A" or "B," it shall be entitled to appoint one member. The ARC shall have no rights or authority until Declarant's authority expires or is assigned. At such time, the ARC shall have authority over modifications, additions, or alterations made on or to existing structures on Units. At any time during the review process, Declarant shall have the right to veto any action taken by the ARC so long as it owns any property described in Exhibit "A."
All new construction or modifications shall be reviewed, and the reviewing body may establish and charge reasonable fees for review of applications hereunder and may require such fees to be paid in full prior to review of any application. Such fees may include the reasonable costs incurred in having any application reviewed by architects, engineers, or other professionals. Declarant and the Association may employ architects, engineers, or other persons as deemed necessary to perform the review. The Board may include the compensation of such persons in the Association's annual operating budget as a Common Expense.
9.3. Standards and Procedures.
(a) Standards. Declarant may prepare architectural standards or design guidelines ("Standards") which shall apply to all construction activities within the Community. Declarant shall have sole and full authority to amend the Standards as long as it owns any portion of the Community or has the right to annex additional property in accordance with Section 7.1. Thereafter, the ARC shall have the authority to amend the Standards with the consent of the Board. The Standards are intended to provide guidance to Owners regarding matters of particular concern in considering applications, and all structures and improvements shall be constructed in strict compliance with the Standards, unless the reviewing body has granted a variance in writing.
(b) Procedures. Prior to commencing any activity subject to review, an Owner shall submit an application for approval of the proposed work to the appropriate reviewing body. Such application shall be in the form required by the reviewing body and shall include plans and specifications ("Plans") showing site layout, structural design, exterior elevations, exterior materials and colors, signs, landscaping, drainage, lighting, irrigation, utility facilities layout and screening therefor, and other features of proposed construction, as applicable. Before the Owner may begin the proposed activity, the application must be approved in accordance with the procedures described below.
In reviewing each submission, the reviewing body may consider whatever factors it deems relevant, including visual and harmony of external. design with surrounding structures and environment. The reviewing body may require relocation of native plants within the construction site, screening, and landscaping as a condition of approval of any submission.
The reviewing body shall respond in writing to an application within 30 days at an address specified by such party at the time of submission. The response may (i) approve the application, (ii) approve portions, segments, or features of the Plans, and disapprove other portions, segments, or features, or (iii) disapprove an application which is deemed to be inconsistent or not in conformity with this Declaration and/or the Standards. The reviewing body may, but shall not be obligated to, set forth the reasons for such finding, and it may make suggestions to cure objections to an application. In the event the reviewing body fails to respond in a timely manner, approval shall be deemed to have been given; provided, no construction which is inconsistent with the Standards shall be deemed approved unless a written variance has been issued. Notice shall be deemed to have been given at the time the envelope containing the response is deposited with the U. S. Postal Service. Personal delivery of such written notice shall, however, be sufficient and shall be deemed to have been given at the time of delivery to the submitting party.
If construction does not commence on a project which has been approved within 120 days of such approval, such approval shall be deemed withdrawn, and it shall be necessary for the Owner to reapply for approval. If construction is not completed on a project for which plans have been approved within the period set forth in the Standards or in the approval, such approval shall be deemed withdrawn, and such incomplete construction shall be deemed to be in violation of this Article.
9.4. No Waiver of Future Approvals.
Each Owner acknowledges that the people reviewing applications will change from time to time and that interpretation, application, and enforcement of the Standards may vary accordingly. Approval of proposals, plans and specifications, or drawings for any work done or proposed, or in connection with any other matter requiring approval, shall not be deemed to constitute a waiver of the right to withhold approval as to any similar proposals, plans and specifications, drawings, or other matters subsequently or additionally submitted for approval.
Declarant or the ARC may authorize variances, in writing, from
the Standards or its guidelines and procedures, but only: (a) in accordance with duly adopted
rules and regulations, (b) when unique circumstances dictate, such as unusual topography, natural obstructions, hardship, or aesthetic or environmental considerations, and (c) when construction in accordance with the variance would be consistent with the purposes of the Declaration and compatible with existing and anticipated uses of adjoining properties. Inability to obtain, or the terms of, any governmental approval, or the terms of any financing shall not be considered a hardship warranting a variance.
9.6. Limitation of Liability.
The requirements and procedures established by this Article are intended to enhance the overall aesthetics of the Community and shall not create any duty to any Person. Declarant, the Board, or the ARC shall not bear any responsibility for (i) ensuring the structural integrity or soundness of approved construction or modifications, (ii) for ensuring compliance with building codes and other governmental requirements, or (iii) for ensuring the appropriateness of soils, drainage, and general site work, Neither Declarant, the Association, the Board, the ARC, 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 Unit. In all matters, the Association shall defend and indemnify the ARC and its members.
Any structure, thing, or improvement placed or made in violation of this Article or the Standards shall be deemed to be nonconforming, unless a variance has been granted. Upon written request from the Board or Declarant, Owners shall, at their own cost and expense, remove such structure or improvement and restore the property to substantially the same condition as existed prior to the nonconforming work. Should an Owner fail to remove and restore as required, Declarant or the Board shall have the right to Record a notice of violation and to enter the property, remove the violation, and restore the property to substantially the same condition as previously existed. All costs, together with interest at the maximum rate then allowed by law, may be assessed against the Owner and Unit and collected as a Specific Assessment.
Unless otherwise specified in writing by the body 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 Unit, unless approval to modify any application has been obtained. In the event that any Person fails to commence and diligently pursue to completion all approved work, the Association shall be authorized, after notice to the Owner of the Unit and an opportunity to be heard in accordance with the By-Laws, to enter upon the Unit and remove or complete any incomplete work and to assess all costs incurred against the Unit and its Owner as a Specific Assessment.
The Board may exclude from the Community any contractor, subcontractor, agent, employee, or other invitee of an Owner who fails to comply with the terms and provisions of this Article and the Standards, subject to the notice and hearing procedures contained in the By-Laws. In such event, neither the Association, its officers, or directors shall be held liable to any Person for exercising the rights granted by this paragraph.
In addition to the foregoing, the Association and Declarant 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 reviewing bodies.
USE RESTRICTIONS AND RULES
10.1. Plan of Development; Applicability; Effect.
Declarant has established a general plan of development for the Community in order to enhance all Owners' quality of life and collective interests, the aesthetics and environment within the Community, and the vitality of and sense of community, all subject to the Board's and the Members' ability to respond to changes in technology, needs and desires, and to regulate and control the Area of Common Responsibility. The initial Use Restrictions and Rules attached as Exhibit "C," establish affirmative and negative covenants, easements, and restrictions on the land subject to this Declaration.
All provisions of this Declaration and any Association rules shall apply to all Owners, occupants, tenants, guests, and invitees of any Unit. Any lease on any Unit shall provide that the lessee and all occupants of the leased Unit shall be bound by the terms of the Governing Documents.
10.2. Authority to Promulgate Use Restrictions and Rules.
The initial Use Restrictions and Rules may be modified in whole or in part, repealed, or expanded as follows:
(a) Subject to the Board's duty to exercise business judgment and reasonableness on behalf of the Association and its Members, the Board may adopt rules which modify, cancel, limit, create exceptions to, or expand the initial Use Restrictions and Rules. The Board shall send notice by mail to all Owners concerning any such proposed action at least five business days prior to the Board meeting at which such action is to be considered. Members shall have a reasonable opportunity to be heard at a Board meeting prior to such action being taken.
Such action shall become effective unless disapproved at a meeting by Members representing at least 51% of the total Class "A" votes and by the Class "B" Member, if any. The Board shall have no obligation to call a meeting of the Members to consider disapproval except upon petition of the Members as required for special meetings in the By-Laws.
(b) Alternatively, the Members, at a meeting duly called for such purpose as provided in the By-Laws, may adopt rules which modify, cancel, limit, create exceptions to, or expand the Use Restrictions and Rules previously adopted by a vote of Members representing at least 51% of the total Class "A" votes in the Association and the approval of the Class "B" Member, if any.
(c) At least 30 days prior to the effective date of any action taken under subsections (a) or (b) of this Section, the Board shall send a copy of the rule to each Owner. The Association shall provide, without cost, a copy of the new Use Restrictions and Rules then in effect to any requesting Member or Mortgagee.
10.3. Owners' Acknowledgment.
All Owners and occupants of Units are given notice that use of their Units is limited by the Use Restrictions and Rules as they may be amended, expanded, and otherwise modified hereunder. Each Owner, by acceptance of a deed or entering into and Recording a contract of sale, acknowledges and agrees that the use and enjoyment and marketability of his or her Unit can be affected, that the Use Restrictions and Rules may change from time to time, and that such changed Use Restrictions and Rules may or may not be set forth in a recorded instrument.
10.4. Rights of Owners.
Except as may be specifically set forth in this Declaration (either initially or by amendment), neither the Board nor the Members may adopt any rule in violation of the following provisions:
(a) Similar Treatment. Similarly situated Owners and occupants shall be treated similarly.
(b) Signs. No signs, banners, symbols, or displays of any kind shall be displayed upon any Unit other than one sign identifying the name of the contractor during construction of a dwelling or the developer of the Community, or one "for sale" sign not to exceed four square feet in surface area. Any such sign must satisfy any design criteria set forth in the Standards and otherwise approved by the reviewing body under Section 9.2. Notwithstanding the foregoing restriction, a Mortgagee taking title to a Unit pursuant to the terms of a Mortgage, or any Person acting pursuant to a law or ordinance may place a sign on a Unit, provided that the design, color, and size of any such sign is approved by the reviewing body.
(c) Religious and Holiday Displays. The rights of Owners to display religious and holiday signs, symbols, and decorations on their Units of the kinds normally displayed in single-family residential neighborhoods shall not be abridged, except that the Association may adopt time, place, and manner restrictions with respect to displays visible from outside of a structure.
(d) Household Composition. No rule shall interfere with the freedom of occupants of Units to determine the composition of their households, except that the Association shall have the power to require that all occupants be members of a single housekeeping unit and to limit the total number of occupants permitted in each Unit on the basis of the size and facilities of the Unit and its fair use of the Common Area.
(e) Activities Within Dwellings. No rule shall interfere with the activities carried on within the confines of dwellings, except that the Association may prohibit activities not normally associated with property restricted to residential use, and it may restrict or prohibit any activities that create monetary costs for the Association or other Owners, that create a danger to the health or safety of others, that generate excessive noise or traffic, that create unsightly conditions visible outside the dwelling, or that create an unreasonable source of annoyance.
(f) Allocation of Burdens and Benefits. No rule shall alter the allocation of financial burdens among the various Units or rights to use the Common Area to the detriment of any Owner over that Owner's objection expressed in writing to the Association. Nothing in this provision shall prevent the Association from changing the Common 'Areas available, from adopting generally applicable rules for use of Common Area, or from denying use privileges to those who abuse the Common Area, violate rules or this Declaration, or fail to pay assessments. This provision does not affect the right to increase the amount of assessments as provided in Article VIII.
(g) Alienation. No mile shall prohibit leasing or transfer of any Unit, or require consent of the Association or Board for leasing or transfer of any Unit; provided, the Association or the Board may require a minimum lease term of up to 12 months, The Association may require that Owners use lease forms approved by the Association, but shall not impose any fee on the lease or transfer of any Unit greater than an amount reasonably related to the Association's costs of administering that lease or transfer.
(h) Reasonable Rights to Develop. No rule or action by the Association or Board shall unreasonably impede Declarant's right to develop the Community.
(i) Abridging Existing Rights. If any rule would otherwise require Owners or occupants of Units to dispose of personal property which they maintained in or on the Unit prior to the effective date of such rule, or to vacate a Unit in which they resided prior to the effective date of such rule, and such property was maintained or such occupancy was in compliance with this Declaration and all rules previously in force, such rule shall not apply to any such Owners without their written consent unless the rule was in effect at the time such Owners or occupants acquired their interest in the Unit.
The limitations in this Section 10.4 shall apply to rules only; they shall not apply to amendments to this Declaration adopted in accordance with Section 15.2.
11.1. Easements of Encroachment.
There shall be reciprocal appurtenant easements of encroachment, and for maintenance and use of any permitted encroachment, between each Unit and any adjacent Common Area and between adjacent Units due to the unintentional placement, 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 feet, as measured from any point on the common boundary along a line perpendicular to such boundary. However, in no event shall an easement for encroachment exist if such encroachment occurred due to willful and knowing conduct on the part of, or with the knowledge and consent of, the Person claiming the benefit of such easement.
11.2. Easements for Utilities, Etc.
(a) There are hereby reserved to Declarant, (so long as Declarant owns any property described on Exhibit "A" or "B" of this Declaration), the Association (for perpetual duration), and the designees of each (which may include, without limitation, any governmental or quasi-governmental entity and any utility company) non-exclusive easements upon, across, over, and under all of the Community (but not through a structure) to the extent reasonably necessary for the purpose of monitoring, replacing, repairing, maintaining, and operating cable 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; wetlands and drainage systems; street lights and signage; and all utilities, including, but not limited to, water, sewers, telephone, gas, and electricity, and utility meters; and for the purpose of installing any of the foregoing on property which Declarant or the Association owns or within easements designated for such purposes on Recorded plats of the Community.
Declarant specifically grants to the local water supplier, electric company, and natural gas supplier easements across the Community for ingress, egress, installation, reading, replacing, repairing, and maintaining utility lines, meters, and boxes, as applicable.
(b) There is hereby reserved to Declarant, so long as Declarant owns any property described on Exhibit "A" or "B" of this Declaration, the non-exclusive right and power to grant such specific easements as may be necessary, in the sole discretion of Declarant, in connection with the orderly development of any property described on Exhibit "A" or "B."
(c) Any damage to a Unit 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 permitting entry into the structures on any Unit, nor shall it unreasonably interfere with the use of any Unit and, except in an emergency, entry onto any Unit shall be made only after reasonable notice to the Owner or occupant.
11.3. Easements for Maintenance and Flood Water.
Declarant reserves for itself, the Association, and their successors, assigns, and designees, the nonexclusive right and easement over the Community for access, ingress and egress to the detention basin located within the Community as shown on any Recorded plat of Nob Ridge, and the detention basin or ponds, creeks, streams, and wetlands located within the Area of Common Responsibility and for (a) installing, keeping, maintaining, repairing, and replacing pumps in order to provide water for the irrigation of any of the Area of Common Responsibility; (b) constructing, maintaining, and repairing any bulkhead, retaining wall, levee, or other structure retaining water; (c) removing trash and other debris therefrom; and (d) any other maintenance activities necessary to maintain the Community-Wide Standard. All Persons entitled to exercise these easements shall use reasonable care in, and repair any damage resulting from, the intentional exercise of such easements. Nothing herein shall be construed to make Declarant, the Association, or any other Person liable for damage resulting from flooding due to heavy rainfall or other natural occurrences.
11.4. Easements to Serve Additional Property. Declarant hereby reserves for itself and its duly authorized agents, representatives, and employees, successors, assigns, licensees, and mortgagees, an easement over the Common Area for the purposes of enjoyment, use, access,
and development of the property described in Exhibit "B," whether or not such property is made subject to this Declaration. This easement includes, but is not limited to, a right of ingress and egress over the Common Area for connecting and installing utilities on such property. Declarant agrees that it and its successors or assigns shall be responsible for any damage caused to the Common Area as a result of the exercise of this easement.
11.5. Right of Entry.
The Association shall have the right, but not the obligation, to enter upon any Unit for emergency, security, and safety reasons, to perform maintenance pursuant to Article V hereof, and to inspect for the purpose of ensuring compliance with the Governing Documents. Such right may be exercised by any member of the Board, the Association's officers, agents, employees, and managers, and all policemen, firemen, ambulance personnel, and similar emergency personnel in the performance of their duties, except in an emergency situation, entry shall only be during reasonable hours and after notice to the Owner. This right of entry shall include the Association's right to enter upon any Unit to cure any condition which may increase the possibility of a fire or other hazard in the event an Owner fails or refuses to cure the condition within a reasonable time after Board request but shall not authorize entry into any dwelling without the Owner or occupant's permission, except by emergency personnel acting in their official capacities.
11.6. Landscaping and Signage Easements.
Declarant and the Association shall have perpetual, non-exclusive easements exercisable by their respective employees, agents and contractors over those portions of Units designated as "no access easement" or "entry easements" on the Recorded subdivision plats relating to the Community for the purpose of installation, maintenance, repair, and replacement of lot bollards, neighborhood entrance monuments, signs, fences, lighting, irrigation systems and landscaping within the easement area. No fences, structures, driveways, plantings, swings, wood piles, dog runs, or any other objects, temporary or permanent, shall be permitted in such areas without the Association's prior written approval, other than those initially installed by Declarant.
Nothing herein shall obligate Declarant or the Association to exercise such easements or to construct or install any of the foregoing within any Landscaping and Signage Easement.
The following provisions are for the benefit of holders, insurers, and guarantors of first Mortgages on Units in the Community.
12.1. Notices of Action.
An institutional holder, insurer, or guarantor of a first Mortgage who provides a written request to the Association (such request to state the name and address of such holder, insurer, or guarantor and the street address of the Unit to which its Mortgage relates, thereby becoming an "Eligible Holder"), will be entitled to timely written notice of:
(a) Any condemnation loss or any casualty loss which affects a material portion of the Community or which affects any Unit on which there is a first Mortgage held, insured, or guaranteed by such Eligible Holder;
(b) Any delinquency in the payment of assessments or charges owed by a Unit subject to the Mortgage of such Eligible Holder, where such delinquency has continued for a period of 60 days, or any other violation of the Declaration or By-Laws relating to such Unit or the Owner or Occupant which is not cured within 60 days; or
(c) Any lapse, cancellation, or material modification of any insurance policy maintained by the Association.
12.2. No Priority.
No provision of this Declaration or the By-Laws gives or shall be construed as giving any Owner or other party priority over any rights of the first Mortgagee of any Unit in the case of distribution to such Owner of insurance proceeds or condemnation awards for losses to or a taking of the Common Area.
12.3. Notice to Association.
Upon request, each Owner shall be obligated to furnish to the Association the name and address of the holder of any Mortgage encumbering such Owner's Unit.
12.4. Failure of Mortgagee 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 30 days of the date of the Association's request, provided such request is delivered to the Mortgagee by certified or registered mail, return receipt requested.
Any or all of the special rights and obligations of Declarant set forth in this Declaration or the By-Laws may be transferred or assigned in whole or in part to other Persons, provided that the transfer shall not reduce an obligation nor enlarge a right beyond that which Declarant has under this Declaration or the By-Laws. No such transfer or assignment shall be effective unless it is in a written instrument signed by Declarant and duly Recorded.
Declarant and builders authorized by Declarant may maintain and carry on without fee or charge upon portions of the Common Area such facilities and activities as, in Declarant's opinion, may be reasonably required, convenient, or incidental to the construction or sale of Units, including, but not limited to, business offices, signs, model homes, and sales offices. Declarant and authorized builders shall have easements for access to and use of such facilities.
Declarant and its employees, agents, and designees shall also have a right and easement over and upon all of the Common Area for the purpose of making, constructing, and installing such improvements to the Common Area as it deems appropriate in its sole discretion.
No person shall record any declaration of covenants, conditions, and restrictions; or declaration of condominium; or similar instrument affecting any portion of the Community 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 Declarant and Recorded.
Notwithstanding any contrary provision of this Declaration, no amendment to or modification of any Use Restrictions and Rules, architectural standard, or design guideline or attempted after termination of the Class "B" Control Period shall be effective without prior notice to and written approval of Declarant so long as Declarant owns any portion of the Community primarily for development and sale.
This Article may not be amended without Declarant's written consent. The rights contained in this Article shall terminate upon the earlier of (a) 40 years from the date this Declaration is Recorded, or (b) upon Recording by Declarant of a written statement that all sales activity has ceased.
14.1. Agreement to Avoid Litigation.
Declarant, the Association, its officers, directors, and committee members, all Persons subject to this Declaration, any builder, and any Person not otherwise subject to this Declaration who agrees to submit to this Article (collectively, "Bound Parties") agree to encourage the amicable resolution of disputes involving the Community, without the emotional and financial costs of litigation. Accordingly, each Bound Party covenants and agrees that those claims, grievances or disputes described in Sections 14.2 ("Claims") shall be resolved using the procedures set forth in Section 14.3 in lieu of filing suit in any court.
Unless specifically exempted below, all claims, grievances, or disputes arising out of or relating to the interpretation, application, or enforcement of the Governing Documents; the rights, obligations, and duties of any Bound Party under the Governing Documents; or relating to the design or construction of improvements within the Community shall be subject to the provisions of Section 14.3.
Notwithstanding the above, unless all parties thereto otherwise agree, the following shall not be Claims and shall not be subject to the provisions of Section 14.3:
(a) any suit by the Association against any Bound Party to enforce the provisions of Article VIII (Assessments);
(b) any suit by the Association to obtain a temporary restraining order (or other emergency equitable relief) and such other ancillary relief as the court may deem necessary in order to maintain the status quo and preserve the Association's ability to enforce the provisions of Article IX (Architectural Standards) and Article X (Use Restrictions and Rules);
(c) any suit between Owners, which does not include Declarant or the Association as a party, if such suit asserts a Claim which would constitute a cause of action independent of the Governing Documents;
(d) any suit in which any indispensable party is not a Bound Parry; and
(e) any suit as to which any applicable statute of limitations would expire within 180 days of giving the Notice required by Section 14.3(a).
With the consent of all parties thereto, any of the above may be submitted to the alternative dispute resolution procedures set forth in Section 14.3.
14.3. Mandatory Procedures.
Any Bound Party having a Claim ("Claimant") against any other Bound Party ("Respondent") (collectively, the "Parties") shall notify each Respondent in writing (the "Notice"), stating plainly and concisely:
role in the Claim; Claim arises); resolve the Claim.
(i) the nature of the Claim, including the Persons involved and Respondent's
(ii) the legal basis of the Claim (i.e., the specific authority out of which the
(iii) Claimant's proposed remedy; and (iv)that Claimant will meet with Respondent to discuss in good faith ways to
(b) Negotiation and Mediation.
(i) The Parties shall make every reasonable effort to meet in person and confer for the purpose of resolving the Claim by good faith negotiation. If requested in writing, accompanied by a copy of the Notice, the Board may appoint a representative to assist the Parties in resolving the dispute by negotiation.
(ii) If the Parties do not resolve the Claim within 30 days of the date of the Notice (or within such other period as may be agreed upon by the Parties) ("Termination of Negotiations"), Claimant shall have 30 additional days to submit the Claim to mediation under the auspices of the Neighborhood Justice Center of Atlanta or, if the Parties otherwise agree, to an independent agency providing dispute resolution services in the Cobb County area.
(iii) If Claimant does not submit the Claim to mediation within 30 days after Termination of Negotiations, or does not appear for the mediation, Claimant shall be deemed to have waived the Claim, and Respondent shall be released and discharged from any and all liability to Claimant on account of such Claim; provided, nothing herein shall release or discharge Respondent from any liability to any Person other than the Claimant.
(iv) Any settlement of the Claim through mediation shall be documented in writing by the mediator. If the Parties do not settle the Claim within 30 days after submission of the matter to the mediation process, or within such time as determined by the mediator, the mediator shall issue a notice of termination of the mediation proceedings ("Termination of Mediation"). The Termination of Mediation notice shall set forth that the Parties are at an impasse and the date that mediation was terminated.
(v) Within five days of the Termination of Mediation, the Claimant shall make a final written settlement demand ("Settlement Demand") to the Respondent and the Respondent shall make a final written settlement offer ("Settlement Offer") to the Claimant. If the Claimant fails to make a Settlement Demand, Claimant's original Notice shall constitute the Settlement Demand. If the Respondent fails to make a Settlement Offer, Respondent shall be deemed to have made a "zero" or "take nothing" Settlement Offer.
(c) Final and Binding Arbitration.
(i) If the Parties do not agree in writing to a settlement of the Claim within 15 days of the Termination of Mediation, the Claimant shall have 15 additional days to submit the Claim to arbitration in accordance with the Rules of Arbitration contained in Exhibit "D" or such rules as may be required by the agency providing the arbitrator. If not timely submitted to arbitration or if the Claimant fails to appear for the arbitration proceeding, the Claim shall be deemed abandoned, and Respondent shall be released and discharged from any and all liability to Claimant arising out of such Claim; provided, nothing herein shall release or discharge Respondent from any liability to Persons other than Claimant.
(ii) This subsection (c) is an agreement to arbitrate and is specifically enforceable under the applicable arbitration laws of the State of Georgia. The arbitration award (the "Award") shall be final and binding, and judgment may be entered upon it in any court of competent jurisdiction to the fullest extent permitted under the laws of the State of Georgia.
14.4. Allocation of Costs of Resolving Claims.
(a) Subject to Section 14.4(b), each Party shall bear its own costs, including any attorney’s fees incurred, and each Party shall share equally all charges rendered by the mediator(s) and all filing fees and costs of conducting the arbitration proceeding ("Post Mediation Costs").
(b) Any Award which is equal to or more favorable to Claimant than Claimant's Settlement Demand shall add Claimant's Post Mediation Costs to the Award, such costs to be borne equally by all Respondents. Any Award which is equal to or less favorable to Claimant than any Respondent's Settlement Offer shall award to such Respondent its Post Mediation Costs.
14.5. Enforcement of Resolution.
After resolution of any Claim, if any Party fails to abide by the terms of any agreement or Award, then any other Party may file suit or initiate administrative proceedings to enforce such agreement or Award without the need to again comply with the procedures set forth in Section 14.3. In such event, the Party taking action to enforce the agreement or Award shall be entitled to recover from the non-complying Party (or if more than one non-complying Party, from all such Parties pro rata) all costs incurred in enforcing such agreement or Award, including, without limitation, attorneys' fees and court costs.
This Declaration, as it may be amended, is intended to remain in effect in perpetuity. However, so long as Georgia law limits the period during which covenants may run with the land, this Declaration shall run with and bind the Community so long as permitted. After such time, this Declaration shall be extended automatically for successive 20-year periods, unless terminated in accordance with O.C.G.A. §44-5-60, as may be amended, within the year preceding any extension. Notwithstanding the above, if any of the covenants, conditions, restrictions, or other provisions of this Declaration shall be unlawful, void, or voidable for violation of the rule against perpetuities, then such provisions shall continue only until 21 years after the death of the last survivor of the now living descendants of Elizabeth II, Queen of England.
This Declaration may be amended as provided in this section.
Amendments to this Declaration shall become effective upon Recordation, unless a later effective date is specified therein. Any procedural challenge to an amendment must be made within six 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.
(a) By Declarant.
During the Class "B" Control Period, Declarant may unilaterally amend this Declaration for any purpose. Thereafter, so long as Declarant owns any property described in Exhibit "A," it may unilaterally amend this Declaration to (1) bring any provision hereof into compliance with any applicable governmental statute, rule, regulation, or judicial determination; (ii) enable any title insurance company to issue title insurance coverage; (iii) if such amendment is required by an institutional or governmental lender or purchaser of mortgage loans; or (iv) if such amendment is necessary to enable any governmental agency or private insurance company to insure or guarantee Mortgage loans; provided, any such amendment shall not materially adversely affect the title to any Owner's Unit unless any such Unit Owner shall consent thereto in writing.
(b) By the Owners.
This Declaration may be amended upon the affirmative vote or written consent, or any combination thereof, of the Owners of at least two-thirds (2/3) of the Units and the consent of Declarant (so long as Declarant owns any of the property described in Exhibit "A").
(c) By the Board.
The Board shall be authorized to amend this Declaration without the consent of the Owners to submit the Association to the Georgia Property Owners' Association Act and to conform this Declaration to any mandatory provisions thereof. Any such amendment shall require the consent of Declarant, so long as Declarant owns any of the property described in Exhibit "A" or "B."
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.
No amendment may remove, revoke, or modify any right or privilege of Declarant or the Class "B" Member without the written consent of Declarant or the Class "B" Member, respectively (or the assignee of such right or privilege).
If an Owner consents to any amendment to this Declaration or the By-Laws, it will be conclusively presumed that such Owner has the authority to consent, and no contrary provision in any Mortgage or contract between the Owner and a third party will affect the validity of such amendment.
Invalidation of any provision of this Declaration, in whole or in part, or any application of a provision of this Declaration by judgment or court order shall in no way affect other provisions or applications.
Except as provided below, no judicial or administrative proceeding shall be commenced or prosecuted by the Association unless approved by a vote of 75% of the Members. This Section shall not apply, however, to (a) actions brought by the Association to enforce the provisions of this Declaration (including, without limitation, the foreclosure of liens); (b) the imposition and collection of assessments as provided in Article VIII; (c) proceedings involving challenges to ad valorem taxation; or (d) counter-claims brought by the Association in proceedings instituted against it. 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. This Section shall apply in addition to the provisions of Article XIV, if applicable.
15.5. Cumulative Effect; Conflict.
The provisions of this Declaration shall be cumulative with the provisions of any applicable Supplemental Declaration. Nothing in this Section shall preclude any Supplemental Declaration or other Recorded declaration, covenants, and restrictions applicable to any portion of the Community 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,
Every Owner and occupant of any Unit shall comply with this Declaration, any applicable Supplemental Declaration, the By-Laws, and the Use Restrictions and Rules promulgated pursuant to Article X. Subject to the terms of Article XIV, failure to comply shall be grounds for an action by the Association or, in a proper case, by any aggrieved Unit Owner(s) to recover sums due, for damages or injunctive relief, or for any other remedy available at law or in equity, in addition to those enforcement powers granted to the Association in Section 4.3.
15.7. Notice of Sale or Transfer of Title.
Any Owner desiring to sell or otherwise transfer title to his or her Unit shall give the Board at least seven 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 successor Owner of the Unit, including assessment obligations, until the date upon which such notice is received by the Board, notwithstanding the transfer of title.
Exhibits "A," "B," and "D" attached to this Declaration are incorporated by this reference and amendment of such exhibits shall be governed by the provisions of Section 15.2. Exhibit "C" is incorporated by this reference and may be amended in accordance with Section 15.2 or Article X. 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.
Land Initially Submitted
ALL THAT TRACT OR PARCEL OF LAND lying and being in Land Lot 28 of the 19th District, 2nd Section, Cobb County, Georgia, and being 14.79 acres designated as Tract 1 on that certain survey for Nob Ridge Development, Inc., Premier Bank, and Chicago Title Insurance Company, dated June 2, 1999, last revised March 22, 2000, prepared by Gaskins Surveying Co., John C. Gaskins, Georgia Registered Land Surveyor No. 2060, and being more particularly described as follows:
BEGINNING at the intersection of the southeasterly right-of-way of Villa Rica Road with the westerly land lot line of Land Lot 28, said district and section (which point is 35.0 feet from the centerline of Villa Rica Road); thence running north 48 degrees 35 minutes 47 seconds east as measured along the southeasterly right-of-way of Villa Rica Road for a distance of 378.90 feet to a point and corner located at the intersection of the southeasterly right-of-way of Villa Rica Road with the southeasterly right-of-way of Old Marietta-Dallas Road (having a 50-foot right-of-way); thence running south 76 degrees 58 minutes 50 seconds east as measured along the southwesterly right-of-way of Old Marietta-Dallas Road for a distance of 413.19 feet to a #3 rebar found and corner; thence running south 02 degrees 46 minutes 15 seconds east for a distance of 898.51 feet to a point and corner located on the southerly land lot line of Land Lot 28, said district and section; thence running north 89 degrees 56 minutes 12 seconds west as measured along the southerly land lot line of Land Lot 28, said district and section, for a distance of 411.40 feet to a #3 rebar found; thence running south 89 degrees 57 minutes 54 seconds west as measured along the southerly land lot line of Land Lot 28, said district and section, for a distance of 316.28 feet to a 2" open top pipe found at the common corners of Land Lots 27, 28, 47, and 48, said district and section; thence running north 00 degrees 11 minutes 46 seconds west as measured along the westerly land lot line of Land Lot 28, said district and section, for a distance of 739.70 feet to the point of BEGINNING.
ALL THAT TRACT OR PARCEL OF LAND lying and being in Land Lots 28, 47, and 102 of the 19th District 2nd Section, Cobb County, Georgia, and being 50.30 acres, more or less, as reflected on that certain survey for Nob Ridge Development, Inc., Premier Bank, and Chicago Title Insurance Company, dated June 2, 1999, last revised March 22, 2000, prepared by Gaskins Surveying Co., John C. Gaskins, Georgia Registered Land Surveyor No. 2060, and being more particularly described as follows:
BEGINNING at a r rod located at the common corners of Land Lots 101, 102, 121, and 122, said district and section; thence running in a northerly direction as measured along the westerly land lot line of Land Lot 102, said district and section, the following courses and distances: north 02 degrees 16 minutes 09 seconds west for a distance of 65.01 feet to a #4 rebar found; north 00 degrees 30 minutes 07 seconds west for a distance of 340.54 feet to a 1/4 rebar found; north 00 degrees 24 minutes 37 seconds west for a distance of 1,834.49 feet to a #5 rebar found and corner; thence running south 89 degrees 35 minutes 22 seconds east for a distance of 319.44 feet to a 2" open top pipe found and corner; thence running north 00 degrees 07 minutes 13 seconds west for a distance of 420.18 feet to a #3 rebar found and corner located on the northerly land lot line of Land Lot 47, said district and section; thence running south 89 degrees 56 minutes 12 seconds east as measured along the northerly land lot line of Land Lot 47, said district and section, for a distance of 411.40 feet to a point and corner; thence running north 02 degrees 46 minutes 15 seconds west for a distance of 898.51 feet to a #3 rebar found on the southwesterly right-of-way of Old Marietta-Dallas Road (having a 50-foot right-of-way); thence running south 77 degrees 51 minutes 01 seconds east as measured along the southwesterly right-of-way of Old Marietta-Dallas Road for a distance of 99.94 feet to a #5 rebar found and corner; thence running south 02 degrees 59 minutes 09 seconds east for a distance of 877.73 feet to a point and corner located on the southerly land lot line of Land Lot 28, said district and section; thence running south 89 degrees 56 minutes 12 seconds east as measured along the southerly land lot line of Land Lot 28, said district and section, for a distance of 325.97 feet, more or less, to a point located at the centerline of Noses Creek (said point being Point "A" of a tie-line); thence running in a southwesterly southeasterly, southerly, and southwesterly direction, along and following the centerline of said Noses Creek and the meanderings thereof, for a distance of 3,006 feet, more or less, to a point and corner located at the intersection of the centerline of Noses Creek with the southerly land lot line of Land Lot 102, said district and section (said point and corner being Point "B" of said tie-line) (said tie-line being described from Point "A" south 05 degrees 34 minutes 58 second west a distance of 476.48 feet to a point; south 06 degrees 50 minutes 51 seconds west a distance of 523.17 feet to a point; south 18 degrees 44 minutes 28 seconds east a distance of 141.57 feet to a point; south 10 degrees 50 minutes 43 seconds east a distance of 155.66 feet to a point; south 18 degrees 09 minutes 53 seconds west a distance of 149.79 feet to a point; south 46 degrees 35 minutes 05 seconds west a distance of 266.92 feet to a point; south 39 degrees 57 minutes 46 seconds west a distance of 576.17 feet to a point; south 36 degrees 51 minutes 47 seconds west a distance of 266.48 feet to a point; south 25 degrees 13 minutes 19 seconds west a distance of 206.78 feet to a point; south 14 degrees 02 minutes 29 seconds west a distance of 221.63 feet to a point, being Point "B" of said tie-line); thence running north 88 degrees 38 minutes 41 seconds west as measured along the southerly land lot line of Land Lot 102, said district and section, for a distance of 190.91 feet, more or less, to the point of BEGINNING.
ALL THAT TRACT OR PARCEL OF LAND lying and being in Land Lot 47 of the 19th District, 2nd Section, Cobb County, Georgia, and being 3,06 acres designated as Tract III on that certain survey for Nob Ridge Development, Inc., Premier Bank, and Chicago Title Insurance Company, dated June 2, 1999, last revised March 22, 2000, prepared by Gaskins Surveying Co., John C. Gaskins, Georgia Registered Land Surveyor No. 2060, and being more particularly described as follows:
BEGINNING at a 2" open top pipe found at the common corners of Land Lots 27, 28, 47, and 48, said district and section, thence running north 89 degrees 57 minutes 54 seconds east as measured along the northerly land lot line of Land Lot 47, said district and section, for a distance of 316.28 feet to a #3 rebar found and corner; thence running south 00 degrees 07 minutes 13 seconds east for a distance of 420.18 feet to a 2" open top pipe found and corner; thence running north 89 degrees 55 minutes 22 seconds west for a distance of 319.44 feet to a #5 rebar found on the westerly lot line of Land Lot 47, said district and section, thence running north 00 degrees 18 minutes 40 seconds east as measured along the westerly land lot line of Land Lot 47, said district and section, for a distance of 419.56 feet to the point of BEGINNING.
Land Subject to Annexation
Any property adjacent to and located within one mile of the property described on Exhibit "A."
Initial Use Restrictions and Rules
The following restrictions shall apply to all of the Community until such time as they are amended, modified, repealed or limited by rules of the Association adopted pursuant to Article X of the Declaration.
The Community shall be used only for residential, recreational, and related purposes (which may include, without limitation, an information center and/or a sales office for any real estate broker retained by Declarant to assist in *the sale of property described on Exhibit "A" or "B," offices for any property manager retained by the Association or business offices for Declarant or the Association) consistent with this Declaration and any Supplemental Declaration.
2. Restricted Activities.
The following activities are prohibited within the Community unless expressly authorized by, and then subject to such conditions as may be imposed by, the Board of Directors:
(a) Parking of any vehicles on streets or thoroughfares within the Community, or parking of commercial vehicles or equipment, mobile homes, recreational vehicles, boats and other watercraft, trailers, stored vehicles or inoperable vehicles in places other than enclosed garages; provided, construction, service and delivery vehicles shall be exempt from this provision during daylight hours for such period of time as is reasonably necessary to provide service or to make a delivery to a Unit or the Common Areas;
(b) Raising, breeding, or keeping of animals, livestock, or poultry of any kind, except that a reasonable number of dogs, cats, or other usual and common household pets may be permitted in a Unit; however, those pets which are permitted to roam free, or, in the sole discretion of the Board, make objectionable noise, endanger the health or safety of, or constitute a nuisance or inconvenience to the occupants of other Units shall be removed upon request of the Board. If the pet owner fails to honor such request, the Board may remove the pet. Dogs shall be kept on a leash or otherwise confined in a manner acceptable to the Board whenever outside the dwelling. Pets shall be registered, licensed, and inoculated as required by law;
(c) Any activity which emits foul or obnoxious odors outside the Unit or creates noise or other conditions which tend to disturb the peace or threaten the safety of the occupants of other Units;
(d) Any activity which violates local, state, or federal laws or regulations; however,
the Board shall have no obligation to take enforcement action in the event of a violation;
(e) Pursuit of hobbies or other activities which tend to cause an unclean, unhealthy,
or untidy condition to exist outside of enclosed structures on the Unit;
(f) Any noxious or offensive activity which in the reasonable determination of the Board tends to cause embarrassment, discomfort, annoyance, or nuisance to persons using the Common Area or to the occupants of other Units;
(g) Outside burning of trash, leaves, debris, or other materials, except during the normal course of constructing a dwelling on a Unit;
(h) Dumping of grass clippings, leaves or other debris, petroleum products, fertilizers, or other potentially hazardous or toxic substances. in any drainage ditch, stream, pond, or lake, or elsewhere within the Community, except that fertilizers may be applied to landscaping on Units provided care is taken to minimize runoff, and Declarant and builders may dump and bury rocks and trees removed from a building site on such building site;
(i) Accumulation of rubbish, trash, or garbage except between regular garbage pick-ups, and then only in approved containers;
(j) Obstruction or rechanneling of drainage flows after location and installation of drainage swales, storm sewers, or storm drains, except that Declarant and the Association shall have such right; provided, the exercise of such right shall not materially diminish the value of or unreasonably interfere with the use of any Unit without the Owner's consent;
(k) Subdivision of a Unit into two or more Units, or changing the boundary lines of any Unit after a subdivision plat including such Unit has been approved and Recorded, except that Declarant shall be permitted to subdivide or replat Units which it owns;
(l) Any business, trade, or similar activity, except that an Owner or occupant residing in a Unit may conduct business activities within the structure located on the Unit so long as:
(i) the existence or operation of the business activity is not apparent or detectable by sight, sound, or smell from outside the Unit;
(ii) the business activity conforms to all zoning requirements for the Community;
(iii) the business activity does not involve excessive visitation of the Unit by clients, customers, suppliers, or other business invitees or door-to-door solicitation of residents of the Community; and
(iv) the business activity is consistent with the residential character of the Community and does not constitute a nuisance, or a hazardous or offensive use, or threaten the security or safety of other residents of the Community, as may be determined in the sole discretion of the Board.
The terms "business" and "trade," as used in this provision, shall be construed to have their ordinary, generally accepted meanings and shall include, without limitation, any occupation, work, or activity undertaken on an ongoing basis which involves the provision of goods or services to persons other than the provider's family and for which the provider receives a fee, compensation, or other form of consideration, regardless of whether:
(i) such activity is engaged in full or part-time,
(ii) such activity is intended to or does generate a profit, or (iii) a license is required.
The leasing of a Unit shall not be considered a business or trade within the meaning of this subsection, this subsection shall not apply to any activity conducted by Declarant or a builder approved by Declarant with respect to its development and sale of the Community or its use of any Units which it owns within the Community.
(m) Conversion of any carport or garage to finished space for use as an apartment or other integral part of the living area on any Unit without the prior approval of the appropriate committee pursuant to Article IX;
(n) Any construction, erection, or placement of anything, permanently or temporarily, on the outside portions of the Unit, whether such portion is improved or unimproved, except in strict compliance with the provisions of Article IX of the Declaration. This shall include, without limitation, signs, basketball hoops, swing sets, and similar sports and play equipment; hedges, walls, dog runs, animal pens, or fences of any kind; clotheslines; garbage cans; woodpiles; above-ground swimming pools; docks, piers, and similar structures; antennas, satellite dishes, ham radio towers, or other apparatus for the transmission or reception of television, radio, satellite, or other signals of any kind. To the extent that the reviewer of a request for any of the foregoing permit antennas or satellite dishes within the Community, such shall be restricted to a size of one meter or less and be located behind the rear portion of the dwelling and screened from view from the street and sidewalk.
3. Prohibited Conditions.
The following shall be prohibited within the Community:
(a) Plants, animals, devices, or other things of any sort whose activities or existence in any way is noxious, dangerous, unsightly, unpleasant, or of a nature as may diminish or destroy the enjoyment of the Community;
(b) Structures, equipment, or other items on the exterior portions of a Unit which have become rusty, dilapidated, or otherwise fallen into disrepair;
(c) Sprinkler or irrigation systems or wells of any type which draw upon water from creeks, streams, wetlands, or other ground or surface waters within the Community, except that Declarant and the Association shall have the right to draw water from such sources;
4. Leasing of Units.
"Leasing," for purposes of this paragraph, is defined as regular, exclusive occupancy of a Unit by any person, other than the Owner for which the Owner receives any consideration or benefit, including, but not limited to, a fee, service, gratuity, or emolument. All leases shall be in writing. Leases shall have a minimum initial term of not less than six months. Notice of any lease, together with such additional information as may be required by the Board, shall be given to the Board by the Unit Owner within 10 days of execution of the lease. The Owner must make available to the lessee copies of the Declaration, By-Laws, and the Use Restrictions and Rules.
Rules of Arbitration
1. Claimant shall submit a Claim to • arbitration under these Rules by giving written notice to all other Parties stating plainly and concisely the nature of the Claim, the remedy sought and Claimant's submission of the Claim to arbitration ("Arbitration Notice").
2. The Parties shall select arbitrators ("Party Appointed Arbitrators") as follows: all the Claimants shall agree upon one Party Appointed Arbitrator, and all the Respondents shall agree upon one Party Appointed Arbitrator. The Party Appointed Arbitrators shall, by agreement, select one neutral arbitrator ("Neutral") so that the total arbitration panel ("Panel") has three arbitrators.
3. If the Panel is not selected under Rule 2 within 45 days from the date of the Arbitration Notice, any party may notify the Atlanta Chapter of the Community Associations Institute, for any dispute arising under the Governing Documents, or Construction Arbitration Associates, Ltd., for any dispute relating to the design or construction of improvements on the Community, which shall appoint one Neutral ("Appointed Neutral"), notifying the Appointed Neutral and all Parties in writing of such appointment. The Appointed Neutral shall thereafter be the sole arbitrator and any Party Appointed Arbitrators or their designees shall have no further duties involving the arbitration proceedings.
4. No person may serve as a Neutral in any arbitration in which that person has any financial or personal interest in the result of the arbitration. Any person designated as a Neutral or Appointed Neutral shall immediately disclose in writing to all Parties any circumstance likely to affect impartiality, including any bias or financial or personal interest in the outcome of the arbitration ("Bias Disclosure"). If any Party objects to the service of any Neutral or Appointed Neutral after receipt of that Neutral's Bias Disclosure, such Neutral or Appointed Neutral shall be replaced in the same manner in which that Neutral or Appointed Neutral was selected.
5. The Appointed Neutral or Neutral, as the case may be ("Arbitrator") shall fix the date, time and place for the hearing. The place of the hearing shall be within the Community unless otherwise agreed by the Parties. In fixing the date of the hearing, or in continuing a hearing, the Arbitrator shall take into consideration the amount of time reasonably required to determine Claimant's damages accurately.
6. Any Party may be represented by an attorney or other authorized representative throughout the arbitration proceedings. In the event the Respondent fails to participate in the arbitration proceeding, the Arbitrator may not enter an Award by default, but shall hear Claimant's case and decide accordingly.
7. All persons who, in the judgment of the Arbitrator, have a direct interest in the arbitration are entitled to attend hearings. The Arbitrator shall determine any relevant legal issues, including whether all indispensable parties are Bound Parties or whether the claim is barred by the statute of limitations.
8. There shall be no stenographic record of the proceedings. The hearing shall be conducted in whatever manner will, in the Arbitrator's judgment, most fairly and expeditiously permit the full presentation of the evidence and arguments. The Arbitrator may issue such orders as it deems necessary to safeguard rights of the Parties in the dispute without prejudice to the rights of the Parties or the final determination of the dispute.
9. If the Arbitrator decides that it has insufficient expertise to determine a relevant issue raised during arbitration, the Arbitrator may retain the services of an independent expert who will assist the Arbitrator in making the necessary determination. The scope of such professional's assistance shall be determined by the Arbitrator in the Arbitrator's discretion. Such independent professional must not have any bias or financial or personal interest in the outcome of the arbitration and shall immediately notify the Parties of any such bias or interest by delivering a Bias Disclosure to the Parties. If any Party objects to the service of any professional after receipt of a Bias Disclosure, such professional shall be replaced by another independent licensed professional selected by the Arbitrator.
10. No formal discovery shall be conducted in the absence of express written agreement among all the Parties. The only evidence to be presented at the hearing shall be that which is disclosed to all Parties at least 30 days prior to the hearing; provided, no Party shall deliberately withhold or refuse to disclose any evidence which is relevant and material to the Claim and is not otherwise privileged. The Parties may offer such evidence as is relevant and material to the Claim and shall produce such additional evidence as the Arbitrator may deem necessary to an understanding and determination of the Claim. The Arbitrator shall be the sole judge of the relevance and materiality of any evidence offered, and conformity to the legal rules of evidence shall not be necessary. The Arbitrator shall be authorized, but not required, to administer oaths to witnesses.
11. The Arbitrator shall declare the hearings closed when satisfied the record is complete. There will be no post-hearing briefs.
12. The Award shall be rendered at the close of the hearing, if possible, and no later than 14 days from the close of the hearing, unless otherwise agreed by the Parties. The Award shall be in writing, shall be signed by the Arbitrator and acknowledged before a notary public. If the Arbitrator believes an opinion is necessary, it shall be in summary form.
13. If there is more than one arbitrator, all decisions of the Panel and the Award shall be by majority vote.
14. Each Party agrees to accept as legal delivery of the Award the deposit of a true copy in the mail addressed to that Party or its attorney at the address communicated to the Arbitrator at the hearing.