Cobb County real estate records Book 10194 Pages 001-034

DECLARATION OF COVENANTS, RESTRICTIONS AND EASEMENTS
FOR CALVARY LAKE

TABLE OF CONTENTS


Article I - Definitions
Article II - Common Property
Article III - Calvary Lake Homeowners Association
Article IV - Assessments
Article V - Architectural Control
Article VI - General Covenants and Restrictions
Article VII - Easements, Zoning and other Restrictions
Article VIII - Enforcement
Article IX - Duration and Amendment
Article X - Miscellaneous
Article XI - Mortgagee Provisions
 
Exhibit A(1) - Calvary Lake S/D - Unit I
Exhibit A(2) - Calvary Lake Subdivision - Lake Area
Exhibit B - Proposed Unit II - Calvary Lake S/D
 

ARTICLE I. DEFINITIONS
1.01       Association
1.02       Board
1.03       By-Laws
1.04       Commencement Date
1.05       Common Property
1.06       Declarant
1.07       Development-Wide Standard
1.08       Lot
1.09       Member
1.10       Membership
1.11       Occupant
1.12       Owner
1.13       Property
1.14       Residence
1.15       Restrictions
1.16       Structure

ARTICLE II. COMMON PROPERTY
2.01       Conveyance of Common Property
2.02       Right of Enjoyment
2.03       Rights of the Association
2.04       Conveyance of Common Property by Declarant to Association
2.05       Types of Common Property
2.06       Delegation of Use
2.07       Maintenance

ARTICLE III. CALVARY LAKE HOMEOWNERS ASSOCIATION
3.01       Purposes, Powers and Duties of The Association
3.02       Membership in the Association
3.03       Voting Rights
3.04       Board of Directors
3.05       Suspension of Membership
3.06       Termination of Membership
3.07       Voting Procedures
3.08       Control by Declarant

ARTICLE IV. ASSESSMENTS
4.01       Covenant for Assessments and Creation of Lien and Personal Obligation
4.02       Purpose of Assessment
4.03       Accumulation of Funds Permitted
4.04       Annual Assessment
4.05       Special Assessments
4.06       Assessment Procedure
4.07       Uniform Rate of Assessment
4.08       Contribution By Declarant
4.09       Effect of Nonpayment of Assessments
4.10       Certificate of Payment
4.11       Approval by Declarant

ARTICLE V. ARCHITECTURAL CONTROL
5.01       Architectural Control Committee - Creation and Composition
5.02       Purpose, Powers and Duties of the ACC
5.03       Officers, Subcommittees and Compensation
5.04       Operations of the ACC
5.05       Design Standards
5.06       Submission of Plans and Specifications
5.07       Approval of Plans and Specifications
5.08       Disapproval of Plans and Specifications
5.09       Obligation to Act
5.10       Inspection Rights
5.11       Violations
5.12       Certification of Compliance
5.13       Fees
5.14       Nondiscrimination by ACC
5.15       Disclaimer as to ACC Approval

ARTICLE VI. GENERAL COVENANTS AND RESTRICTIONS
6.01       Application
6.02       Restriction of Use
6.03       Resubdivision of Property
6.04       Erosion Control
6.05       Landscaping
6.06       Trees
6.07       Temporary Buildings
6.08       Signs
6.09       Setbacks
6.10       Fences
6.11       Roads and Driveways
6.12       Antennae, Etc.
6.13       Clotheslines, Garbage Cans, Etc.
6.14       Maintenance
6.15       Commercial and Recreational Vehicles and Trailers
6.16       Recreational Equipment
6.17       Non-Discrimination
6.18       Animals
6.19       Solid Waste
6.20       Nuisances
6.21       Lakes
6.22       Parking

ARTICLE VII. EASEMENTS, ZONING AND OTHER RESTRICTIONS
7.01       Easements
7.02       Easement Area
7.03       Entry
7.04       Zoning and Private Restrictions
7.05       Easement for Lake Maintenance

ARTICLE VII. ENFORCEMENT
8.01       Right of Enforcement
8.02       Right of Abatement
8.03       Specific Performance
8.04       Collection of Assessments and Enforcement of Lien
8.05       No Waiver

ARTICLE IX. DURATION AND AMENDMENT
9.01       Duration
9.02       Amendments by Declarant
9.03       Amendments by Association

ARTICLE X. ANNEXATION AND FUTURE DEVELOPMENT
10.01      Annexation

ARTICLE XI. MISCELLANEOUS
11.01      No Reverter
11.02      Severability
11.03      Headings
11.04      Gender
11.05      Notices
11.06      Insurance

ARTICLE XII. MORTGAGEE PROVISIONS         
12.01      Notices of Action
12.02      No Priority
12.03      Notice to Association
12.04      Amendment by Board
12.05      Applicability of Article
12.06      Failure of Mortgagee to Respond


 

DECLARATION
OF COVENANTS, RESTRICTIONS AND EASEMENTS
FOR CALVARY LAKE

    THIS DECLARATION OF COVENANTS, RESTRICTIONS AND EASEMENTS FOR CALVARY LAKE (this "Declaration") is made as of the 28th day of December 1996, by KBJ CORPORATION, a Georgia corporation (hereinafter referred to as "Declarant").

BACKGROUND STATEMENT

    Declarant is the owner of certain real property in Cobb County, Georgia, which is more particularly described on Exhibit "A" attached hereto and made a part hereof.

    Declarant intends to develop on the real property described above a development to be known as Calvary Lake (hereinafter referred to as the "Development"). Declarant intends by this Declaration to impose mutually beneficial restrictions under a general plan of improvement for the benefit of all owners of residential property within the Development by the recording of this Declaration and any amendments thereto. Declarant desires to provide a flexible and reasonable procedure for the overall development of the Development and the interrelationship between the Association (as hereinafter defined) established pursuant to this Declaration and the owners of residential property within the Development. Declarant also desires to establish a method for the administration, maintenance, preservation, use and enjoyment of the property that is now or hereafter subjected to this Declaration and certain other properties described in this Declaration.

    Declarant has caused the Association (as hereinafter defined) to be formed as a non-profit organization to perform certain functions for the common good and general welfare of the Owners (as hereinafter defined).

    The Declarant hereby declares that the Property (as hereinafter defined) shall be held, sold and conveyed subject to this Declaration, which is for the purpose of enhancing and protecting the value, desirability and attractiveness of the Property. The covenants, restrictions and easements set forth herein shall run with the Property, and shall be binding on all parties having or acquiring any right, title or interest in the Property or any part thereof, and shall, subject to the limitations herein provided, inure to the benefit of each Owner, their heirs, grantees, distributees, successors and assigns and to the benefit of the Association.


 

ARTICLE I.
DEFINITIONS

The following words, when used in this Declaration, shall have the following meanings:

1.01  Association.  "Association" means Calvary Lake Homeowners Association, Inc. (a non-profit, non-stock, membership corporation organized under the Georgia Nonprofit Corporation Code), its successors and assigns.

1.02  Board.  "Board" means the Board of Directors of the Association.

1.03  By-Laws.  "By-Laws" means the By-Laws of the Association including any amendments thereto.

1.04  Commencement Date.  "Commencement Date" means the date on which twenty-five (25) Residences in the Development have been sold to a third party other than Declarant or the builder of such Residences.

1.05  Common Property.  "Common Property" means all real property (together with any and all improvements now or hereafter located thereon) and personal property, if any, owned by the Association or in certain instances over which the Association has been granted permanent easements, for the common use and enjoyment of the Owners.

1.06  Declarant.  "Declarant' means KBJ Corporation, a Georgia corporation, and its successors-in-title and assigns, provided any such successors-in-title or assigns shall acquire for the purpose of development or sale all or any portion of the remaining undeveloped or unsold portions of the Property, or the real property which is intended to become part of the Development, and provided further, in the instrument of conveyance to any such successor-in-title or assign, such successor-in-title or assign is designated as the "Declarant" hereunder by the grantor of such conveyance, which grantor shall be the "Declarant" hereunder at the time of such conveyance; provided, further, 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 Property and which is now or hereafter subject to this Declaration, there shall be only one person or legal entity entitled to exercise the rights and powers of the "Declarant" hereunder at any one time.

1.07  Development-Wide Standard.  "Development-Wide Standard" shall mean the standard of conduct, maintenance or other activity generally prevailing in the Development. Such standard may be more specifically determined by the Board and by committees required or permitted to be established pursuant to the Declaration and By-Laws. Such determination, however, must be consistent with the Development-Wide Standard originally established by the Declarant.

1.08  Lot.  "Lot" means any parcel of land shown upon a subdivision plat recorded in the Office of the Clerk of the Superior Court of Cobb County, covering any portion of the Property, provided, however, that no portion of the Common Property shall ever be a Lot except as provided in 2.05.

1.09  Member.  "Member" means any member of the Association.

1.10  Membership.  "Membership" means the collective total of all Members of the Association.

1.11  Occupant.  "Occupant" shall mean any person occupying all or any portion of a Residence located within the Development for any period of time, regardless of whether such person is a tenant or the Owner of such property.

1.12  Owner.  "Owner" means the record owner (including Declarant), whether one or more persons or entities, of fee simple title to any Lot; provided, however, that where fee simple title has been transferred and is being held merely as security for the repayment of a loan, the person or entity who would own the Lot in fee simple if such loan were paid in full shall be considered the Owner.

1.13  Property.  "Property" means that certain real property described on Exhibit "A" hereto together with such additional real property as may be subjected to the provisions of this Declaration in accordance with the provisions of Article X hereof.

1.14  Residence.  "Residence" shall mean a structure situated upon a Lot intended for independent use and occupancy as a residence for a single family. A structure and the land owned as a part thereof (the Lot) shall not become a Residence until a certificate of occupancy shall have been issued by the appropriate governmental authorities as a pre-requisite to the occupancy of such Residence and until the Lot and structure located thereon shall have been conveyed to a third party other than the builder thereof. The Owner of a Lot shall notify the Association or its designee immediately upon issuance of a Certificate of Occupancy for the Residence.

1.15  Restrictions.  "Restrictions" means all covenants, restrictions, easements, charges, liens and other obligations created or imposed by this Declaration, as the same may be modified from time to time pursuant to the terms hereof.

1.16  Structure.  "Structure" means:

    (a)  any thing or object the placement of which upon any Lot may affect the appearance of such Lot, including by way of illustration and not limitation, any building or part thereof, garage, porch, shed, greenhouse or bathhouse, coop or cage, covered or uncovered patio, swimming pool, dock, fence, curbing, paving, wall, tree, shrub (and all other forms of landscaping), sign, signboard, temporary or permanent living quarters (including any house trailer) or any other temporary or permanent improvement to such Lot;

    (b)  any excavation, grading, fill, ditch, diversion dam or other thing or device which affects or alters the natural flow of surface waters from, upon or across any Lot, or which affects or alters the flow of any waters in any natural or artificial creek, stream, wash or drainage channel from, upon or across any Lot; and

    (c)  any change in the grade at any point on a Lot of more than six (6) inches, whether or not subsection (b) of this Section 1.16 applies to such change.


 

ARTICLE II.
COMMON PROPERTY

2.01  Conveyance of Common Property.

    (a)  The Declarant may from time to time convey Common Property to the Association or grant easements to the Association, at no expense to the Association and in accordance with this Section. The Association hereby covenants and agrees to accept from the Declarant all, such conveyances of Common Property.

    (b)  It is contemplated by the Declarant that the Declarant will convey to the Association Common Property for general recreational use to include facilities for nature trails, swimming and tennis. The Declarant may, at Declarant's sole discretion, modify, alter, increase, reduce and otherwise change the Common Property contemplated to be conveyed to the Association in accordance with this subsection (b) of this Section 2.01 at any time prior to conveyance of such Common Property to the Association.

    (c)  In addition to the property described in subsection (b) of this Section 2.01, the Declarant may convey to the Association in accordance with this Section 2.01 such other real and personal property as the Declarant may determine to be necessary or proper for the completion of the Development.

    (d)  Notwithstanding any legal presumption to the contrary, the fee title to, and all rights in, any portion of the Property owned by the Declarant and designated as Common Property or designated for public use shall be reserved to the Declarant until such time as the same shall be conveyed to the Association or to any municipality or other governmental body, agency or authority.

    (e)  Lakes and dams may, without limitation, be included in the property that may be conveyed by Declarant and which shall be accepted by the Association. Declarant shall not be required to make any improvements whatsoever to the Common Property to be conveyed and accepted pursuant to this Section including, without limitation, dredging or otherwise removing silt from any lake that may be conveyed.

2.02  Right of Enjoyment.  Every Owner of a Residence shall have a right and easement to use and enjoy the Common Property, which right shall be appurtenant to and shall pass with the title to every Lot upon transfer; provided, however, that no Owner shall do any act which interferes with the free use and enjoyment of the Common Property by all other Owners. The Association may permit persons who are not Owners of Residences to use and enjoy part or all of the Common Property subject to such limitations, and upon such terms and conditions, as it may from time to time establish. The right and easement of enjoyment granted or permitted by this Section 2.02 is subject to suspension by the Association as provided in Sections 2.03(f) and 3.05.

2.03  Rights of the Association.  The rights and privileges conferred in Section 2.02 hereof shall be subject to the right, and where applicable, the obligation, of the Association acting through the Board to:

    (a)  promulgate rules and regulations relating to the use, operation and maintenance of the Common Property;

    (b)  borrow money for the purpose of carrying out the activities of the Association, including the acquisition, construction, improvement, equipping and maintenance of common Property, and in aid thereof to encumber by deed to secure debt, mortgage or other security interest any or all of the Association's property including common Property and revenues from assessments, user fees and other sources; and provided, however, that, during the period when the Declarant has the right to appoint members of the Board, the Association shall not deed, grant or convey to anyone any mortgage, deed to secure debt or other security interest on or in Common Property constituting real estate without approval by Declarant and a two-thirds (2/3) vote of the Members who are present in person or by proxy and voting at a meeting of Members duly held in accordance with the By-Laws of the Association;

    (c)  grant easements or rights of way over Common Property to any municipality or other governmental body, agency or authority, to any quasi-public agency or to any utility company or cable television system;

    (d)  dedicate or transfer all or any part of the Common Property or interests therein to any municipality or other governmental body, agency or authority for such purposes and subject to such provisions and conditions as may be agreed upon by the Association and such grantee, including a provision that such property or interest shall, if such dedication or transfer is approved by Declarant a two-thirds (2/3) vote of the Members who are present in person or by proxy and voting at a meeting of Members duly held in accordance with the By-Laws of the Association, cease to be subject to this Declaration or all or any part of the Restrictions while held by any such municipality or other governmental body, agency or authority;

    (e)  charge reasonable fees in connection with the admission to and use of facilities or services by Members and non-members; provided that in setting any such fee the Board may establish reasonable classifications which shall be uniform within each such class but need not be uniform between such classes;

    (f)  suspend, pursuant to Section 3.05, the voting rights of any Member and the right of enjoyment granted or permitted by Section 2.02;

    (g)  to sell, lease or otherwise convey all or any part of its properties and interests therein; and

    (h)  enforce all applicable provisions of valid agreements of the Association relating to the Common Property or any part thereof; and

    (i)  maintain any and all landscaping treatments previously installed by the Declarant, to the extent that such landscaping is not otherwise maintained by the appropriate county and/or municipal entity having jurisdiction over roads for Cobb county, Georgia.

2.04  Conveyance of Common Property by Declarant to Association.  The Declarant may transfer or convey to the Association any personal property and any improved or unimproved property, leasehold, easement or other property interest which is or may be subjected to the terms of this Declaration. Such conveyance shall be accepted by the Association, and the property shall thereafter be Common Property to be maintained by the Association for the benefit of all of its Members.

2.05  Types of Common Property.  At the time of the conveyance of any real property or grant of easement by the Declarant to the Association to be used as Common Property,, the Declarant shall designate in the deed of conveyance or easement that such real property is to be Common Property, and further may designate in the deed of conveyance or easement the specific or general purpose or purposes for which such real property or any portion thereof may be used, and in such event, such real property or portion thereof shall not, without approval of Declarant and a two-thirds (2/3) vote of the Members of the Association, be used for any different purpose or purposes without the prior written consent of the Declarant.

2.06  Declaration of Use.  Any Owner may delegate to the members of his family or his tenant who reside on a Lot (but not to the public in general), in accordance with the By-Laws, his right to use and enjoy the Common Property.

2.07  Maintenance.  The Association shall maintain and keep in good repair the Common Property. This maintenance shall include, without limitation, maintenance, repair and replacement of all landscaping and improvements situated on the Common Property. In addition, the Association shall maintain grass and other landscaping located along or in dedicated rights of way which were installed and maintained by Declarant, to the extent permitted by the applicable governmental authority. The foregoing maintenance shall be performed consistent with the Development-Wide Standard.

      The Association shall also have the right, but not the obligation to maintain and provide services for other property not owned by the Association, whether located within or without the boundaries of the Development, and to enter into easements and covenants to share cost agreements regarding such property where the Board has reasonably determined that this would benefit Owners.


 

ARTICLE III.
CALVARY LAKE HOMEOWNERS ASSOCIATION

3.01  Purposes.  Powers and Duties of The Association. The Association shall be formed as a non-profit organization for the sole purpose of performing certain functions for the common good and general welfare of the Development. The Association shall have no power or duty to do or perform any act or thing other than those acts and things which will promote in some way the common good and general welfare of the Development. To the extent, and only to the extent, necessary to carry out such purpose, the Association (a) shall have all of the powers of a corporation organized under the Georgia Nonprofit Corporation Code, and (b) shall have the power and duty to exercise all of the rights, powers and privileges and to perform all of the duties and obligations of the Association as set forth in this Declaration.

3.02  Membership in the Association.  Every Owner shall automatically be a member of the Association and such membership shall terminate only as provided in this Declaration. For purposes of voting, there shall be two (2) classes of Members as set forth in Section 3.03.

3.03  Voting Rights.

    (a)  Each Owner of a Residence, with the exception of Declarant, shall be a Class A Member and shall be entitled to one (1) Class A vote per Residence. Where such Owner is a group or entity other than one individual person, the vote on behalf of such Owner shall be exercised only by such individual person as shall be designated in a proxy instrument duly executed by or on behalf of such group or entity and delivered to the secretary of the Association.

    (b)  The Declarant shall be the sole Class B Member and shall be entitled to three (3) votes for each Lot or Residence owned; provided, however, in no event shall the Class B Member have less than the total number of Class A votes plus one (1). The class B Membership shall cease and be converted to Class A Membership at such time as Declarant no longer retains the right to appoint and remove members of the Board and officers of the Association pursuant to Section 3.08 below.

    (c)  It is contemplated that the Development will be composed of Lots to be developed in two (2) phases containing unequal numbers of Lots. The real property upon which phase two of the Development is contemplated to be developed is more particularly described on Exhibit "B", attached hereto and incorporated herein ("Phase Two"). Each such phase will be platted of record in the Office of the Clerk of the Superior Court of Cobb County in accordance with Article X of this Declaration. The Declarant shall notify the Association in writing when the final phase of the Development has been so platted of record. By acceptance of a deed conveying a Lot, each Owner acknowledges that, upon the filing by Declarant of the subdivision plate covering such phases, the total votes outstanding in the Association will automatically increase based upon the number of Lots in the phases added and in accordance with the formula set forth in subsection (b) of this Section 3.03.

3.04  Board of Directors.  The affairs of the Association shall be managed by a Board of Directors. The number of Directors and the method of election of Directors shall be as set forth in the By-Laws of the Association.

3.05  Suspension of Membership.  The Board may suspend the voting rights of any Member and the right of enjoyment of the Common Property of any person who:

    (a)  shall be subject to the Right of Abatement, as defined in Section 8.02 by reason of having failed to take the reasonable steps to remedy a violation or breach of either the Restrictions or the Design Standards of the ACC (as herein defined) within thirty (30) days after having received notice of the same pursuant to the provisions of Section 5.11, 6.14 or 8.02 hereof;

    (b)  shall be delinquent in the payment of any assessment levied by the Association pursuant to the provisions of Article IV hereof; or

    (c)  shall be in violation of the rules and regulations of the Association relating to the use, operation and maintenance of Common Property. Such suspension shall be for the balance of the period in which said Member or person shall remain in violation, breach or default, as aforesaid, except that in the case of a violation described in subsection (c) of this Section 3.05, the suspension may be for a period not to exceed 60 days after the cure or termination of such violation. No such suspension shall prevent an owner's ingress to or egress from his or her Lot.

3.06  Termination of Membership.  Membership shall cease only when a person ceases to be an Owner.

3.07  Voting Procedures.  The procedure for the election of Directors of the Association and the resolution of such other issues as may be brought before the membership of the Association shall be governed by this Declaration, the Georgia Nonprofit Corporation Code, the Articles of Incorporation of the Association, and the By-Laws of the Association, as each shall from time to time be in force and effect.

3.08  Control by Declarant.

    (a)  Notwithstanding any other language or provision to the contrary in this Declaration, in the Articles of Incorporation, or in the By-Laws of the Association, Declarant hereby retains the right to appoint and remove any members of the Board of the Association and any officer or officers of the Association until 15 days after the first of the following events shall occur: (i) the expiration of twenty (20) years after the date recording of the Declaration; (ii) the date upon which 75% of all Lots intended by Declarant to be a part of the Development have been conveyed by Declarant to Owners other than a person or persons constituting Declarant; or (iii) the surrender by Declarant of the authority to appoint and remove directors and officers by an express amendment to this Declaration executed and recorded by Declarant.

    (b)  Upon the expiration of the period of Declarant's right to appoint and remove directors and officers of the Association pursuant to the provisions of this Section, such right shall automatically pass to the Owners, including Declarant if Declarant then owns one or more Lots; and a special meeting of the Association shall be called within sixty (60) days following said expiration date. At such special meeting the Owners shall elect a new Board of Directors which shall undertake the responsibilities of the Board and Declarant shall deliver the books, accounts, and records, if any, which Declarant has kept on behalf of the Association. Each Owner by acceptance of a deed to or other conveyances of a Lot vests in Declarant such authority to appoint and remove directors and officers of the Association as provided in this Section. The Association may exercise any other right or privilege given to it expressly by this Declaration or by law and any other right or privilege reasonably to be implied from the existence of any right or privilege given to it herein or reasonably necessary to effectuate any such right or privilege.


 

ARTICLE IV.
ASSESSMENTS

4.01  Covenant for Assessments and Creation of Lien and Personal Obligation. Each Owner of a Lot, jointly and severally, for himself, his heirs, distributees, legal representatives, successors and assigns, by acceptance of a deed for a Lot, whether or not the covenants contained herein shall be expressed in any such deed, hereby covenants and agrees as follows:

    (a)  to pay to the Association the annual assessments which may or shall be levied by the Association pursuant to this Declaration against all Lots owned by him;

    (b)  to pay to the Association any special assessments for capital improvements and other charges which may or shall be levied by the Association pursuant to this Declaration against all Residences owned by him;

    (c)  that there is hereby created a continuing charge and lien upon all Lots owned by him against which all such assessments are made to secure payment of such assessments and any interest thereon as provided in Section 4.09 hereof and costs of collection including reasonable attorneys' fees;

    (d)  that such continuing charge and lien on such Lot binds such Lot in the hands of the then Owner, and the Owner's heirs, devisees, legal representatives, successors, successors-in-title and assigns. Such charge and lien is superior to any and all charges, liens or encumbrances which may hereafter in any manner arise or be imposed upon such Lots whether arising from or imposed by judgment or decree or by any agreement, contract, mortgage, deed to secure debt, or other instrument, except (i) such liens for taxes or other public charges as are by applicable law made superior, and (ii) all deeds to secure debt given to secure a loan the proceeds of which are used (1) to purchase a Lot or Lots (together with any and all Structures which may from time to time be placed or located thereon) and (2) to finance the construction repair or alteration of Structures.

    (e)  that no sale or transfer at foreclosure or in lieu of foreclosure shall relieve any Lot from liability for any assessment thereafter assessed;

    (f)  that all annual, special and specific assessments (together with interest thereon as provided in Section 4.09 of this Declaration and costs of collection including reasonable attorneys' fees) levied against any Lot owned by him during the period that he is an Owner shall be (in addition to being a continuing charge and lien against such Lot as provided in Section 4.01(c) of this Declaration) a personal obligation which will survive any sale or transfer of the Lot owned by him; provided, however, that such personal obligation for delinquent assessments shall not pass to an Owner's successor-in-title unless expressly assumed by such successor.

4.02  Purpose of Assessment. The assessments levied by the Association shall be used exclusively for the purpose of providing for the common good and general welfare of the Development, including, but not limited to, security, the acquisition, construction, improvement, maintenance and equipping of Common Property, the enforcement of the Restrictions contained in this Declaration, the enforcement of the Design Standards of the ACC, the payment of operating costs and expenses of the Association and the payment of all principal and interest when due on all debts owed by the Association. Notwithstanding the foregoing, the cost of the initial construction of the swim, tennis and nature trail facilities shall be borne by Declarant and shall not be subject to assessments as provided herein.

4.03  Accumulation of Funds permitted. The Association shall not be obligated to spend in any calendar year all the sums collected in such year by way of annual assessments or otherwise, and may carry forward, as surplus, any balances remaining; nor shall the Association be obligated to apply such surplus to the reduction of the amount of the Annual Assessments in any succeeding year, but may carry forward from year to year such surplus as the Board may deem to be desirable for the greater financial security of the Association and the effectuation of its purposes.

4.04  Annual Assessment.

    (a)  Beginning on the Commencement Date, each Lot shall be subject to an annual assessment of Six Hundred Dollars ($600.00) per Lot. In the event that the Commencement Date falls on a day other than January 1, the annual assessment for such year shall be prorated so that each Owner pays an annual assessment proportional to the number of days remaining in the calendar year. The words "Assessment Year" as used herein shall mean the calendar year with the first Assessment Year commencing on January 1 of the year immediately following the Commencement Date.

    (b)  Commencing with the first Assessment Year and continuing thereafter, the annual assessment may be increased at any time and from time to time during each Assessment Year not more than ten percent (10%) above the annual assessment for the previous Assessment Year without a vote of the Membership.

    (c)  Commencing with the first Assessment Year and continuing thereafter, the annual assessment for each Assessment Year may at any time and from time to time be increased more than ten percent (10%) above the maximum annual assessment for the previous Assessment Year if such increase is approved by a two-thirds (2/3) vote of the Class A Members and by the Class B Member of the Association who are present in person or by proxy and voting at a meeting of Members duly held in accordance with the provisions of the By-Laws of the Association and this Declaration. 

4.05  Special Assessments.

In addition to the annual assessments authorized by this Article IV, the Association may levy, in any Assessment Year and with such frequency as the Association shall deem necessary, special assessments for the purpose of paying, in whole or in part, any unanticipated operating expenses, as well as the cost of any construction, reconstruction, repair or replacement of a capital improvement on the Common Property. Such special assessments may be levied by the Board in any Assessment Year without the approval of the members, which special assessments in the aggregate do no exceed an amount equal to the annual assessment then in effect. Special assessments exceeding said amount shall require the approval of two-thirds (2/3) of the Class A Members and by the Class B Member of the Association who are present in person or by proxy at a meeting of Members duly held in accordance with the provisions of the By-Laws of the Association and this Declaration.

4.06  Assessment Procedure.

    (a)  The Board shall establish the annual assessment for each Assessment Year at an amount not in excess of the maximum annual assessment as determined by the provisions of this Article IV, and shall also establish the date during the Assessment Year on which the entire amount of the annual assessment shall be due and payable (Such date is hereinafter referred to as the "Due Date"). The Board shall also establish an annual budget which shall list the estimated operating expenses and shall contain an amount to be set aside each year into a reserve allowance to be used for future repair and replacement of the Common Property; provided, however, in no event shall the Board be required to provide for a reserve sufficient to cover all such future repair and replacement of the Common Property, it being intended that a portion of such costs will be covered by Special Assessments. The Board shall cause the Association to send to each Owner at least thirty (30) days in advance of the Due Date written notice setting forth the amount of the annual assessment and the Due Date. The entire amount of the annual assessment shall become due on the Due Date. The Board may, in its sole discretion, establish reasonable payment procedures to allow or require payment of the annual assessment in installments during the Assessment Year. The Board shall also establish payment procedures for payment of any special assessments for capital improvements which may be levied in accordance with the provisions of this Article IV.

    (b)  All Members of the Association shall be given written notice by the Board not less than thirty (30) nor more than sixty (60) days in advance of any meeting of the Members of the Association at which the Board shall propose taking action pursuant to Section 4.04(c) and Section 4.05 of this Article IV. Such written notice shall specify under which Section or Sections the Board will propose action. At such meeting, the presence of Members or of proxies entitled to cast fifty percent (50%) of the total votes outstanding (Class A and Class B) shall constitute a quorum. If the required quorum is not present at such meeting, a second meeting may be called by the Board subject to the same notice requirement, and the required quorum at such second meeting shall be thirty percent (30%) of the total votes outstanding (Class A and Class B). No such second meeting shall be held more than sixty (60) days following the first meeting. If the required quorum is not present at the second meeting, the Board may take such action without approval of the Members.

4.07  Uniform Rate of Assessment. Both annual and special assessments must be fixed at a uniform rate for all Residences.

4.08Effect of Nonpayment of Assessments. Any Assessment which is not paid on or before the Due Date shall bear interest after the Due Date at the lower of the highest legal rate of interest which can be charged or the rate of eighteen percent (18%) per annum or at such rate as the Board may from time to time establish, provided, however, that in no event shall the Board have the power to establish a rate of interest in violation of the laws of the State of Georgia. In lieu of the interest rate, a late fee will be charged beyond the net 30 days, at $60 each additional month of unpaid dues up to $180 total after day 91, with a lien at day 121; actual incurred legal fees / collection costs will be assessed to homeowner.  The Board will take into consideration any homeowner with a hardship before initiating the penalties. Late fees will be initiated for homeowners who do not make a good faith effort to pay the penalties.  The penalties will be extended to homeowners who ignore the homeowners' assessment dues and do not work with the HOA to pay the dues. In the event of default in the payment of any one or more installments of an assessment, the Board may declare any remaining balance of the assessment at once due and payable. In the event that an Owner shall fail to pay fully any portion of any assessment prior to the date on which payment is due, such unpaid portion (including any remaining balance declared immediately due and payable in accordance with the preceding
sentence), together with interest and costs of collection including reasonable attorneys' fees, shall be a binding personal obligation of such Owner, as well as a lien on such Owner's Lot enforceable in accordance with the provisions of this Declaration.

4.09Certificate of Payment. Upon written demand by an Owner, the Association shall within a reasonable period of time issue and furnish to such Owner a written certificate stating that all assessments (including penalties, interest and costs, if any) have been paid with respect to any Lot owned by said Owner as of the date of such certificate, or that all assessments, interest and costs have not been paid, setting forth the amount then due and payable. The Association may make a reasonable charge for the issuance of such certificate. Any such certificate, when duly issued as herein provided, shall be conclusive and binding with regard to any matter therein stated as between the Association and any bona fide purchaser of, or lender on, the Lot in question.
 

ARTICLE V.
ARCHITECTURAL CONTROL

5.01  Architectural Control Committee - Creation and Composition.

    (a)  An Architectural Control Committee (the "ACC") shall be established consisting of not less than three (3) or more than five (5) individuals, provided, however, that the ACC shall always have an uneven number of members. Notwithstanding anything to the contrary contained herein, Declarant shall have the right, but not the obligation, to appoint all members of the ACC until the plans for all of the Residences for all of the Lots in the Development have been approved by the ACC. Thereafter, the Board shall appoint the members of the ACC. All costs of operating the ACC shall be borne by Declarant until such time as Declarant no longer has the right to remove and appoint Directors and Officers of the Association.

    (b)  Each initial member of the ACC shall be appointed for a term expiring on December 31, 1996. Thereafter each member of the ACC shall be appointed for a calendar-year term. If any vacancy shall occur in the membership of the ACC by reason of death, incapacity, resignation, removal or otherwise, the remaining members of the ACC shall continue to act and such vacancy shall, subject to the provisions of 5.01(a), be filled by the Declarant (or Board if at the time the Board has the right to appoint members of the ACC) at the earliest possible time. Any ACC member may resign at any time by giving written notice of such resignation to the Chairman of the ACC and such resignation shall take effect on receipt thereof by the Chairman. Any member of the ACC may be removed at any time with or without cause by the Declarant (or the Board if at the time the Board has the right to appoint members of the ACC).

5.02  Purpose, Powers and Duties of the ACC. The purpose of the ACC is to assure that any installation, construction or alteration of any Structure on any Lot shall be submitted to the ACC for approval (i) as to whether the proposed installation, construction or alteration is in conformity and harmony of external design and general quality with the existing standards of the neighborhood and with the standards of the Development, and (ii) as to the location of Structures with respect to topography, finished ground elevation and surrounding Structures. To the extent necessary to carry out such purpose, the ACC shall have all of the powers and duties to do each and every thing necessary, suitable, convenient or proper for, or in connection with, or incidental to, the accomplishment of such purpose, including, without being limited to, the power and duty to approve or disapprove plans and specifications for any installation, construction or alteration of any Structure on any Lot.

5.03  Officers, Subcommittees and Compensation. The members of the ACC shall appoint a Chairman from among their number and may appoint from among their number such other officers and subcommittees of members of the ACC as they shall from time to time determine necessary. The members of the ACC shall be reimbursed by the Association for traveling expenses and other reasonable out-of-pocket costs incurred in the performance of their duties as members of the ACC.

5.04  Operations of the ACC.

    (a)  Meetings. The ACC shall hold regular meetings at least once every four (4k-months or more often as may be established by the ACC. special meetings may be called by the Chairman and shall be called by the Chairman upon the written request of a majority of the members of the ACC then in office. Regular and special meetings of the ACC shall be held at such time and at such place as the ACC shall specify. Notice of each regular or special meeting of the ACC shall be mailed to each member thereof at his residence or at his usual place of business at least five (5) days before the day the meeting is to be held. Notice of regular and special meetings need not specify the purpose or purposes for which the meeting is called. Notice of a meeting need not be given to any member of the ACC who signs a waiver of notice either before or after the meeting. Attendance of a member of the ACC at a meeting shall constitute a waiver of notice of such meeting and shall constitute a waiver of any and all objections to the place of the meeting, the time of the meeting, or the manner in which it has been called or convened, except when the member states, at the beginning of the meeting, any such objection or objections to the transaction of business. At each meeting of the ACC, the presence of a majority of the members then in office shall constitute a quorum for the transaction of business. Except as otherwise provided herein, the act of a majority of the members of the ACC present at any regular or special meeting thereof at which a quorum is present shall constitute the act of the ACC. In the absence of a quorum, any member of the ACC present at the time and place of the meeting may adjourn the meeting from time to time until a quorum shall be present. At any adjourned meeting at which a quorum is present, any business may be transaction which might have been transacted at the meeting as originally called. The ACC shall maintain both a record of votes and minutes for each of its meetings. The ACC shall make such records and minutes available at reasonable places and times for inspection by Members of the Association and by the Secretary. Any action required to be taken at a meeting of the ACC, or any action which may be taken at a meeting of the ACC, may be taken without a meeting if written consent, setting forth the action so taken, shall be signed by all the members of the ACC and be filed within the minutes of the proceedings of the ACC. Such consent shall have the same force and effect as a unanimous vote, and may be stated as such in any document filed by the ACC.

    (b)  Activities.

        (i)  The ACC shall adopt and promulgate the Design Standards described in Section 5.05 hereof and shall, as required, make findings, determinations, rulings, and orders with respect to the conformity with said Design Standards of plans and specifications to be submitted for approval to the ACC pursuant to the provisions of this Declaration. The ACC shall, as required, issue authorizations or approvals, which may include specified requirements or conditions, pursuant to the provisions of this Declaration.

        (ii)  Written notice of the decision of the ACC with respect to any particular approval or authorization required hereunder shall, within five (5) working days thereof, be given to any applicant for an approval or authorization. The applicant may, within ten (10) days after receipt of notice of any decision which he deems to be unsatisfactory, file a written request to have the matter in question reviewed by the ACC. Upon the filing of any such request, the matter with respect to which such request was filed shall be submitted to, and reviewed promptly by, the ACC, but in no event later than thirty (30) days after the filing of such request. The decision of a majority of the members of the ACC with respect to such matter shall be final and binding.

5.05  Design Standards.

    (a)  The ACC shall from time to time adopt, promulgate, amend, revoke and enforce guidelines (the "Design Standards') for the purposes of:

        (i)  governing the form and content of plans and specifications to be submitted to the ACC for approval pursuant to the provisions of this Declaration;

        (ii)  governing the procedure for such submission of plans and specifications;

        (iii)  establishing guidelines with respect to the approval and disapproval of design features, architectural styles, exterior colors and materials, details of construction, location and size of Structures and all other matters that require approval by the ACC pursuant to this Declaration; and

        (iv)  assuring the conformity and harmony of external design and general quality of the Development.

    (b)  The ACC shall make a published copy of its current Design Standards readily available to Members and prospective Members of the Association and to all applicants seeking the ACC's approval.

5.06  Submission of Plans and Specifications. No Structure shall be commenced, erected, placed, moved onto or permitted to remain on any Lot nor shall any existing Structure upon any Lot be altered in any way which materially changes the exterior appearance of the Structure or Lot, unless plans and specifications therefor shall have been submitted to and approved in writing by the ACC. Such plans and specifications shall be in such form and shall contain such information as may be reasonably required by the ACC in the Design Standards, including, without being limited to:

    (a)  a site plan showing the location of all proposed and existing Structures on the Lot including building setbacks, open space, driveways, and walkways and all siltation and erosion control measures;

    (b)  a foundation plan;

    (c)  a floor plan;

    (d)  exterior elevations of all proposed Structures and alterations to existing Structures, as such Structures will appear after all back-filling and landscaping are completed;

    (e)  specifications of materials, color scheme, lighting scheme and other details affecting the exterior appearance of all proposed Structures and alterations to existing Structures; and

    (f)  plans for landscaping and grading.

5.07  Approval of Plans and Specifications. Upon approval by the ACC of any plans and specifications submitted pursuant to this Declaration, two (2) copies of such plans and specifications, as approved, shall be deposited for permanent record with the ACC and a copy of such plans and specifications bearing such approval, in writing, shall be returned to the applicant submitting the same. Approval for use in connection with any Lot or Structure of any plans and specifications shall not be deemed a waiver of the ACC's right, in its discretion, to disapprove similar plans and specifications or any of the features or elements included therein if such plans, specifications, features or elements are subsequently submitted for use in connection with any other Lot or Structure. Approval of any such plans and specifications relating to any Lot or Structure, however, shall be final as to that Lot or Structure and such approval may not be revoked or rescinded thereafter, provided that there has been adherence to, and compliance with, such plans and specifications, as approved, and any conditions attached to any such approval.

5.08  Disapproval of Plans and Specifications. The ACC shall have the right to disapprove any plans and specifications submitted pursuant to this Declaration because of any of the following:

    (a)  the failure to include information in such plans and specifications as may have been reasonably requested;

    (b)  the failure of such plans or specifications to comply with this Declaration or the Design standards;

    (c)  any other matter which, in the judgment of the ACC, would be likely to cause the proposed installation, construction or alteration of a Structure (i) to fail to be in conformity and harmony of external design and general quality with the standards for Development as set forth in the Design Standards or the Development-Wide Standard, or (ii) as to location to be incompatible with topography, finished ground elevation and surrounding Structures. In any case in which the ACC shall disapprove any plans and specifications submitted hereunder, or shall approve the same only as modified or upon specified conditions, such disapproval or qualified approval shall be accompanied by a statement of the grounds upon which such action was based. In any such case the ACC shall, if requested, make reasonable efforts to assist and advise the applicant in order that an acceptable proposal may be prepared and submitted for approval.

5.09  Obligation to Act. The ACC shall take action on any plans and specifications submitted as herein provided within thirty (30) days after receipt thereof. Approval by the ACC, if granted, together with any conditions imposed by the ACC, shall be placed in writing on the plans and specifications and shall be returned to the applicant. Failure by ACC to take action within thirty (30) days of receipt of plans and specifications submitted for approval shall be deemed approval of such plans and specifications.

5.10  Inspection Rights. Any employee or agent of the Association or any member of the ACC may, after reasonable notice (except in an emergency, in which case no notice shall be required), at any reasonable time or times enter upon any Lot and Structure thereon for the purpose of ascertaining whether the installation, construction, alteration or maintenance of any Structure or the use of any Lot or Structure is in compliance with the provisions of this Declaration; and neither the Association, nor the ACC, nor any such agent shall be deemed to have committed a trespass or other wrongful act solely by reason of such entry or inspection, provided such inspection is carried out in accordance with the terms of this Section.

5.11  Violations. If any Structure shall be erected, placed, maintained or altered upon any Lot, otherwise than in accordance with the plans and specifications approved by the ACC pursuant to the provisions of this Article, such erection, placement, maintenance or alteration shall be deemed to have been undertaken in violation of this Article and without the approval required herein. If in the opinion of the ACC such violation shall have occurred, the ACC shall notify the Association and the Board shall take appropriate measures to correct the violation; the Board shall provide written notice to the Owner by certified mail, setting forth in reasonable detail the nature of the violation and the specific action or actions required to remedy the violation. If the Owner shall not have taken reasonable steps toward the required remedial action within thirty (30) days after the mailing of the aforesaid notice of violation, then the Association shall have the Right of Abatement as provided in Section 8.02 hereof.

5.12  Certification of Compliance.

    (a)  Upon completion of the installation, construction or alteration of any Structure in accordance with plans and specifications approved by the ACC, the ACC shall, upon written request of the Owner thereof or upon the ACC'S own initiative, issue a Certificate of Compliance, identifying such Structure and the Lot upon which such Structure is placed, and stating that the plans and specifications have been approved and that such Structure complies with such plans and specifications. A copy of said Certificate shall be filed for permanent record with the plans and specifications on file with the ACC.

    (b)  Any Certificate of Compliance issued in accordance with the provisions of this Section shall be prima facie evidence of the facts therein stated; and as to any purchaser or encumbrancer in good faith and for value, or as to any title insurer, such certificate shall be conclusive evidence that all Structures on the Lot comply with all the requirements of this Article, provided, however, that the Certificate shall in no way be construed to certify the acceptability, sufficiency or approval by the ACC of the actual construction o Structures or of the workmanship, or to represent or warrant to anyone the quality, function or operation of the Structures or of any construction, workmanship, engineering, materials or equipment.

    The issuance of the Certificate shall in no way be construed to certify to any party, that the Structures have been built in accordance with any applicable rule or regulation.

5.13  Fees. The ACC may impose and collect a reasonable and appropriate fee to cover the cost of review of plans and of inspections performed pursuant to Section 5.10. The fee shall be established from time to time by the ACC and published in the Design Standards, as amended from time to time.

5.14  Nondiscrimination by ACC. The ACC shall not discriminate against any applicant requesting its approval of plans and specifications because of such applicant's race, color, sex, religion, age or national origin. Further, the ACC in the exercise of its powers granted pursuant to this Declaration shall not take any action the intent or effect of which is to discriminate against persons of a particular race, color, sex, religion, age or national origin.

5.15  Disclaimer as to ACC Approval. Plans and specifications are not reviewed for engineering or structural design or quality of materials, and by approving such plans and specifications neither the ACC, the members thereof, nor the Association assumes liability or responsibility therefor, nor for any defect in any structure constructed from such plans and specifications. Neither Declarant, the Association, the ACC, the Board, nor the officers, directors, members, employees, and agents of any of them shall be liable in damages to anyone submitting plans and specifications to any of them for approval, or to any Owner of property affected by this Declaration by reason of mistake in judgment, negligence, or nonfeasance arising out of or in connection with the approval or disapproval or failure to approve or disapprove any such plans or specifications. Every person who submits plans or specifications and every Owner agrees that he will not bring any action or suit against Declarant, the Association, the ACC, the Board, or the officers, directors, members, employees, and agents of any of them to recover any such damages and hereby releases, remises, quit-claims, and covenants not to sue for all claims, demands, and causes of action arising out of or in connection with any judgment, negligence, or nonfeasance and hereby waives the provisions of any law which provides that a general release does not extend to claims, demands, and causes of action not known at the time the release is given.


 

ARTICLE VI.
GENERAL COVENANTS AND RESTRICTIONS

6.01  Application. The covenants and restrictions contained in this Article VI shall pertain and apply to all Lots and to all Structures erected or placed thereon.

6.02  Restriction of Use. Lots may be used for single-family residences only and for no other purpose provided that Declarant may operate a Sales Office and/or Model Home on a Lot or Lots designated by Declarant.

6.03  Resubdivision of Property. No Lot may be split, divided, or subdivided for sale, resale, gift, transfer, or otherwise, without the ‘prior written approval of the ACC of plans and specifications for such split, division or subdivision. Notwithstanding the foregoing, nothing herein shall prevent Declarant or the Owners of any Lots from combining two or more Lots into one Lot for construction of a single Residence thereon; provided, however, that such combined Lot may not be subdivided thereafter; and, provided further, that the Owner of the Residence of such Lot shall be responsible for annual and special assessments based upon the number of Lots combined into one Lot.

6.04  Erosion Control. No activity which may create erosion or siltation problems shall be undertaken on any Lot without the prior written approval of the ACC of plans and specifications for the prevention and control of such erosion or situation. The ACC may, as a condition of approval of such plans and specifications, require the use of certain means of preventing and controlling such erosion or siltation. Such means may include (by way of example and not of limitation) physical devices for controlling the run-off and drainage of water, special precautions in grading and otherwise changing the natural landscape and required landscaping as provided for in Section 6.05. Guidelines for the prevention and control of erosion and siltation may be included in the Design Standards of the ACC, as amended from time to time.

6.05  Landscaping. No construction of alteration of any Structure shall take place without the prior written approval by the ACC of plans and specifications for the landscaping to accompany such construction or alteration. Guidelines for the landscaping to accompany the construction or alteration of any Structure may be included in the Design Standards of the ACC, as amended from time to time.

6.06  Trees. No tree shall be removed from any Lot unless such removal is in conformity with approved landscaping plans and specifications submitted pursuant to the provisions of Section 6.05 hereof. Guidelines relating to the preservation of trees and other natural resources and wildlife upon the Property may be included in the Design Standards of the ACC, as amended from time to time.

6.07  Temporary Buildings. No temporary building, trailer, garage or building under construction shall be used, temporarily or permanently, as a residence on any Lot except as temporary sleeping or living quarters required or desirable for security purposes in accordance with plans and specifications therefor approved by the ACC. No contractor or builder shall erect on any Lot any temporary building or shed for use in connection with construction on such Lot.

6.08  Signs.

    (a)  No signs whatsoever (including but not limited to commercial and similar signs) shall, without the ACC's prior written approval of plans and specifications therefor, be installed, altered or maintained on any Lot, or on any portion of a Structure visible from the exterior thereof, except:

        (i)  such signs as may be required by legal proceedings;

        (ii)  not more than one (1) "For Sale" sign, such sign having a maximum face area of four square feet; provided that such sign may only be displayed in the front yard of a Lot; and, provided, further, that if, at the time of any desired use of such sign, the Association -is making "For Sale" signs available for the use of Owners, the signs made available by the Association must be used;

        (iii)  directional signs for vehicular or pedestrian safety in accordance with plans and specifications approved by the ACC; and

    (b)  "For Rent" signs are expressly prohibited.

    (c)  In no event during approved construction of any Structure shall more than one job identification sign be approved by the ACC.

6.09  Setbacks. In approving plans and specifications for any proposed Structure, the ACC may establish setback requirements for the location of such Structure. Guidelines for setbacks may be included in the Design Standards of the ACC, as amended from time to time. No Structure shall be erected or placed on any Lot unless its location is consistent with such setbacks.

6.10  Fences. No fence or wall of any kind shall be erected, maintained, or altered on any Lot without the prior written approval of the ACC of plans and specifications for such fences and walls. Guidelines relating to the design, location and uses of fences and walls may be included in the Design Standards of the ACC, as amended from time to time.

6.11  Roads and Driveways. No road or driveway shall be constructed or altered on any Lot without the prior written approval of the ACC of plans and specifications for such roads and driveways. Guidelines relating to the design and location of roads and driveways may be included in the Design Standards of the ACC, as amended from time to time.

6.12  Antennae, Etc. No exterior television or radio antennae or satellite dish or receiver or solar equipment of any sort shall be placed, allowed or maintained upon any portion of a Structure or Lot without prior written approval by the ACC. No antennae shall be installed or used for the purpose of transmitting of electronic signals.

6.13  Clotheslines, Garbage Cans, Etc. All clotheslines, equipment, garbage cans and woodpiles shall be kept screened by adequate planting or fencing so as to conceal them from view by neighboring residences and streets, and may be maintained in the rear yard on a Lot only.

6.14  Maintenance. Each Owner shall keep and maintain each Lot and Structure owned by him, as well as all landscaping located thereon, in good condition and repair, including, but not limited to (i) the repairing and painting (or other appropriate external care) of all Structures (including, without limitation, any docks); (ii) the seeding, watering and mowing of all lawns; and (iii) the pruning and trimming of all trees, hedges and shrubbery so that the same are not obstructive of a view by motorists or pedestrians of street traffic. Notwithstanding the foregoing, the maintenance required hereunder shall also extend from the boundary of a Lot to the curbing of the right-of-way bordering said Lot. If in the opinion of the ACC, any Owner shall fail to perform the duties imposed by this Section, the ACC shall notify the Association. If the Board shall agree with the determination of the ACC with respect to the failure of said Owner to perform the duties imposed by this Section, then the Board shall give written notice to the Owner to remedy the condition in question, setting forth in reasonable detail the nature of the condition and the specific action or actions needed to be taken to remedy such condition. If the Owner shall fail to take reasonable steps to remedy the condition within thirty (30) days after the mailing of said written notice by certified mail, then the Association shall have the Right of Abatement as provided in Section 8.02 hereof. Guidelines relating to the maintenance of Structures and landscaping may be included in the Design Standards of the ACC, as amended from time to time.

6.15  Commercial and Recreational Vehicles and Trailers. No commercial vehicle, house trailer, mobile home, motor home, recreational vehicle, camper, truck with camper top, boat or boat trailer or like equipment shall be permitted on any Lot on a permanent basis, but shall be allowed on a temporary basis not to exceed forty-eight (48) consecutive hours. Notwithstanding the foregoing, any such vehicles or equipment may be stored on a Lot, provided such vehicle or equipment is kept in the enclosed garage and concealed from view by neighboring residences and streets.

6.16  Recreational Equipment. Recreational and playground equipment shall be placed or installed only upon the rear of a Lot as approved by the ACC.

6.17  Non-Discrimination. No Owner or person authorized to act for an Owner shall refuse to sell or rent, after receiving a bona fide offer, or refuse to negotiate for the sale or rental of, or otherwise make unavailable or deny the purchase or rental of any Lot to any persons because of race, color, religion, sex, age or national origin. Anything in this Declaration to the contrary notwithstanding, this covenant shall run with the land and shall remain in effect without any limitation in time.

6.18  Animals. No agricultural animals may be kept on any Lot and no animals, including birds, insects, and reptiles, may be kept on any Lot unless kept thereon solely as household pets and not for commercial purposes. No animal shall be allowed to become a nuisance. No Structure for the care, housing or confinement of any animal shall be constructed, placed or altered on any Lot unless plans and specifications for said Structure have been approved by the ACC.

6.19  Solid Waste.

    (a)  No person shall dump rubbish, garbage, or any other form of solid waste on any Lot or on the Common Property.

    (b)  Except during approved construction and as approved by the appropriate governmental authority, no person shall burn rubbish, garbage, or any other form of solid waste on any Lot or on the Common Property;

    (c)  Except for building materials employed during the course of construction of any Structure approved by the ACC, no lumber, metals, bulk materials or solid waste of any kind shall be kept, stored, or allowed to accumulate on any Lot unless screened or otherwise handled in a manner set forth in the Design Standards, as amended from time to time.

    (d)  If rubbish, garbage, or any other form of solid waste is to be disposed of by being collected on a regular and recurring basis, containers may be placed in the open on any day that a pick-up is to be made, in order to provide access to persons making such pick-up. At all other times such containers shall be screened or enclosed in a manner set forth in the Design Standards, as amended from time to time. Guidelines relating to the type of containers permitted, the manner of storage and the place of pick-up may also be included in the Design Standards, as amended from time to time.

6.20  Nuisances. No noxious or offensive activity shall be carried on upon any Lot, nor shall anything be done thereof which may be or may become any annoyance or nuisance to the community.

6.21  Lakes. This Section and Section 7.05 of this Declaration, and the rules, use restrictions, and design standards and guidelines issued by the Board or its designee shall govern the use of such lakes as may exist, if any, in the Development. Fishing shall be permitted so long as a license is obtained from the appropriate governmental authority. Ice skating and swimming shall not be permitted. Except as may be approved by the Board or its designee, boats with internal combustion motors shall not be permitted on any lake. No Owner shall have any right to pump or otherwise remove water from such lake or lakes for the purpose of irrigation or other use nor to place rocks, stones, trash, garbage, sewage, waste water, rubbish, debris, ashes or other refuge in such lake or lakes or in any other-portion of the land owned by Declarant lying adjacent to or near the Development. Declarant and other property owners adjacent to the lake (but outside the Development) have the sole and absolute right to control the water level of such lake(s) and to control the growth and eradication of plants, fowl, reptiles, animals, fish and fungi in and on such lake(s). Owners of lots which may now or may hereafter be adjacent to the lake (the "Lake Lots") shall be required to maintain such grass, planting or other lateral support to prevent erosion of the embankment adjacent to the lake and the height, grade and contour of said embankment shall not be changed without prior written consent of Declarant or the Association. If any Owner of a Lake Lot fails to maintain said embankment in accordance with the foregoing, Declarant or the Association shall have the right, but no obligation, to enter upon any such Lake Lot to perform such maintenance work which may be reasonably required, all at the expense of the Lake Lot Owner, which expense shall be payable by such owner to the Association. No docks, piers or other similar facility shall be constructed unless and until same shall have been approved by the ACC in accordance with the Design Standards. No bulkhead shall be permitted to be constructed without the prior written consent of Declarant. The Association shall be authorized to promulgate rules and regulations regarding the use of the lakes from time to time, and such rules and regulations shall be binding upon each Owner.

6.22 Parking. No personal vehicles of any Owner or their guests shall be parked on the streets in the Development except on a temporary basis not to exceed 24 hours or such other shorter time period as allowed by law.


 

ARTICLE VII.
EASEMENTS, ZONING AND OTHER RESTRICTIONS

7.01  Easements.

    (a)  Declarant hereby expressly reserves to the Declarant, its successors and assigns forever, the right to create perpetual easements in, on, over and under any part of the Property owned by Declarant for any purpose which Declarant deems necessary, including, by way of example, and not limitation, the following:

        (i)  the erection, installation, construction and maintenance of wires, lines, conduits and poles and the necessary or proper attachments in connection with the transmission of electricity, telephone, cable television cables and other utilities and similar facilities;

        (ii)  the erection, installation, construction and maintenance of storm-water drains, land drains, public and private sewers, irrigation systems, pipelines for supplying gas, water and heat, and for any other public or quasi-public facility, service or function;

        (iii)  slope control purposes, including the right to grade and plant slopes and prevent the doing of any activity which might interfere with slopes or which might create erosion or sliding problems or which might change, obstruct or retard drainage flow; and

        (iv)  the planting or re-planting of hedges, shrubbery, bushes, trees, flowers and plants of any nature.

    (b)  No Owner shall have any right to use any easement created by the Declarant in, on or over any portion of the Property unless such easement has been assigned by the Declarant to the Association.

7.02  Easement Area. The words "Easement Area" as used herein shall mean those areas on any Lot or any other portion of the Property with respect to which easements are shown on a recorded deed, easement agreement or on any filed or recorded map or plat relating thereto.

7.03  Entry. The Declarant and its employees, agents, successors and assigns, shall have the right at all reasonable times to enter upon all parts of each Easement Area for any of the purposes for which such Easement Area is reserved, without being deemed to have committed a trespass or wrongful act solely by reason of such entry and the carrying out of such purposes, provided the same are done in accordance with the provisions of this Section. The Declarant and its employees, agents, successors and assigns shall be responsible for leaving each Lot in good condition and repair following any work or activity undertaken in an Easement Area pursuant to the provisions of Section 7.01.

7.04  Zoning and Private Restrictions. None of the covenants, restrictions or easements created or imposed by this Declaration shall be construed as permitting any action prohibited by applicable zoning laws, or by the laws, rules or regulations of any governmental body. In the event of any conflict between such laws, rules or regulations and the covenants, restrictions and easements created or imposed by Declaration, the most restrictive provision shall govern and control.

7.05  Easement for Lake Maintenance. Declarant hereby expressly reserves a perpetual easement for the benefit of Declarant and its successors and assigns, across such portions of the Development, determined in the sole discretion of Declarant (or its successors and assigns), as are necessary to allow for the maintenance of a lake(s), lake bed(s) and shoreline(s), if any, which are within the Development or which are made available for the use and enjoyment of the Owners and Occupants within the Development. Such maintenance shall be performed with a minimum of interference to the quiet enjoyment of the property adjacent to the lake(s), reasonable steps shall be taken to protect such property, and damage shall be repaired by the person or entity causing the damage at its sole expense. In order to allow the exercise of the rights created pursuant to this easement, no tree or other Structure may be placed within twenty (20) feet of the line formed by the highest normal pool elevation of any lake, unless otherwise approved by the ACC.

    Notwithstanding anything contained herein to the contrary, the easement provided herein is for maintenance only. In no event shall such easement be construed so as to provide to Owners access across any Lot to and around the lake(s); such access shall be provided only through the Common Property adjacent to the lake(s).


 

ARTICLE VIII.
ENFORCEMENT

8.01  Right of Enforcement. This Declaration and the Restrictions contained herein shall inure to the benefit of and shall be enforceable by (i) the Declarant so long as it is an Owner, (ii) the Association and (iii) each Owner, his legal representatives, heirs, successors and assigns.

8.02  Right of Abatement.

    (a)  Except where different notice provisions are provided in Sections 5.11 and 6.14, in the event of a violation or breach of any Restriction contained in this Declaration, the Association shall give written notice by certified mail to the Owner setting forth in reasonable detail the nature of such violation or breach and the specific action or actions needed to be taken to remedy such violation or breach. If the Owner shall fail to take reasonable steps to remedy such violation or breach within thirty (30) days after the mailing of sai written notice (or such shorter period of time as is reasonable under the circumstances in the event of an emergency), then the Association shall have the Right of Abatement.

    (b)  The Right of Abatement, as used in this Section, in Sections 5.11 and 6.14 hereof, and elsewhere in this Declaration, means the right of the Association, through its agents and employees, to enter at all reasonable times upon any Lot or Structure, as to which a violation, breach or other condition to be remedied exists, and to take the actions specified in the notice to the owner to abate, extinguish, remove, or repair such violation, breach or other condition which may exist thereon contrary to the provisions hereof, without being deemed to have committed a trespass or wrongful act solely by reason of such entry and such actions, provided such entry and such actions are carried out in accordance with the provisions of this Section, and with the cost thereof including the costs of collection including reasonable attorneys' fees, together with interest thereon at the lower of the highest rate permitted by Law or 18% to be a binding personal obligation of such Owner enforceable in law, as well as a lien on such Owner's Lot enforceable pursuant to the provisions of Section 8.04 hereof. Such lien shall be superior to any and all charges, liens or encumbrances which may in any manner arise or be imposed upon the Lot after such entry whether arising from or imposed by judgment or decree or by any agreement, contract, mortgage, deed to secure debt, or other instrument, excepting only (i) such liens for taxes or other public charges as are by applicable law made superior, (ii) the liens created by Section 4.01 hereof, and (iii) all deeds to secure debt given to secure a loan the proceeds of which are used (1) to purchase a Lot or Lots (together with any and all Structures which may from time to time be placed or located thereon) and (2) to finance the construction, repair or alteration of Structures.

8.03  Specific Performance. Nothing contained in this Declaration shall be deemed to affect or limit the rights of the Declarant, the Association or any Owner to enforce the Restrictions by appropriate judicial proceedings or to recover damages. However, it is hereby declared that it may be impossible to measure accurately in money the damages which will accrue to a beneficiary hereof, its transferees, successors or assigns, by reason of a violation of, or failure to perform any of the obligations provided by, this Declaration; and therefore, any beneficiary hereof shall be entitled to relief by way of injunction or specific performance, as well as any other relief available at law or in equity, to enforce the provisions hereof.

8.04  Collection of Assessments and Enforcement of Lien.

    (a)  If any assessment, interest, cost or other charge is not paid as required by this Declaration, the Association may bring either an action at law against the Owner personally obligated to pay the same, or an action to foreclose any lien created by this Declaration against the Lot or Lots subject to the lien, or both, for the purpose of collecting such assessment, cost or charge, plus any interest thereon and costs of collection, including reasonable attorneys' fees.

    (b)  As an additional remedy, but in no way as a limitation on the remedies, if any assessment, interest, cost or other charge is not paid as required by this Declaration, each Owner hereby grants to the Association and its assigns the following irrevocable power of attorney: To sell the said Lot or Lots subject to the lien at auction, at the usual place for conducting sales at the Court House in Cobb County, Georgia, to the highest bidder for cash, after advertising the time, terms and place of such sale once a week for four weeks immediately preceding such sale (but without regard to the number of days) in the paper in which the Sheriff's advertisements for Cobb County, Georgia are published, all other notice being hereby waived by each Owner, and the Association or any person on behalf of the Association, or assigns, may bid and purchase at such sale and thereupon execute and deliver to the purchaser or purchasers at such sale a conveyance of said property in fee simple, which conveyance shall contain recitals as to the happenings of the default upon which the execution of the power of sale herein granted depends, and each Owner hereby constitutes and appoints the Association and assigns, the agent and attorney in fact of each Owner to make such recitals, and hereby covenants and agrees that the recitals so to be made by the Association, or assigns, shall be binding and conclusive upon the Owner whose property is the subject matter of such sale, and the heirs, executors, administrators and assigns of such Owner, and that the conveyance to be made by the Association or assigns, shall be effectual to bar all equity of redemption of such Owner, or the successors in interest of such Owner, in and to said Lot or Lots, and the Association or assigns shall collect the proceeds of such sale, and after reserving therefrom the entire amount of assessment, interest, cost or other charge due, together with all costs and expenses of sale and reasonable attorneys' fees, shall pay any excess to such Owner, or to the heirs or assigns of such Owner as provided by law. The power and agency hereby granted are coupled with an interest and are irrevocable by death or otherwise and are granted as cumulative to the remedies for collection of said indebtedness provided by law.

    (c)  WAIVER. EACH OWNER, BY ACCEPTANCE OF A DEED CONVEYING A LOT SUBJECT TO THIS DECLARATION, WAIVES ANY RIGHT WHICH OWNER MAY HAVE UNDER THE CONSTITUTION OR THE LAWS OF THE STATE OF GEORGIA OR THE CONSTITUTION OR THE LAWS OF THE UNITED STATES OF AMERICA TO NOTICE OR TO A JUDICIAL HEARING PRIOR TO THE EXERCISE OF ANY RIGHT OR REMEDY PROVIDED BY THIS DECLARATION AND OWNER WAIVES OWNER'S RIGHTS, IF ANY, TO SET ASIDE OR INVALIDATE ANY SALE DULY CONSUMMATED IN ACCORDANCE WITH THE PROVISIONS OF THIS DECLARATION ON THE GROUND (IF SUCH BE THE CASE) THAT THE SALE WAS CONSUMMATED WITHOUT A PRIOR JUDICIAL HEARING. ALL WAIVERS BY OWNER IN THIS PARAGRAPH HAVE BEEN MADE VOLUNTARILY, INTELLIGENTLY AND KNOWINGLY, AFTER OWNER HAS FIRST BEEN ALLOWED THE OPPORTUNITY TO CONSULT LEGAL COUNSEL WITH RESPECT TO OWNER'S POSSIBLE RIGHTS.

8.05  No Waiver. The failure of the Declarant, the Association, or the Owner of any Lot, his or its respective legal representatives, heirs, successors and assigns, to enforce any Restrictions herein contained shall in no event be considered a waiver of the right to do so thereafter, as to the same violation or breach or as to any violation or breach occurring prior or subsequent thereto.


 

ARTICLE IX.
DURATION AND AMENDMENT

9.01  Duration. This Declaration and the Restrictions contained herein shall run with and bind the Property for a period of twenty (20) years from and after the date when this Declaration is filed for record with the Clerk of the Superior Court of Cobb County, Georgia, after which time this Declaration and the Restrictions shall be automatically renewed for successive periods of ten (10) years; provided, however, that after the end of the said twenty (20) year period and during any ten (10) year renewal period (but only during such renewal period), this Declaration and the Restrictions contained herein may be terminated by an instrument executed by the proper Association officers and recorded in the office of the Clerk of the Superior Court of Cobb County, Georgia, or in such other place of recording as may be appropriate at the time of the execution of such instrument, pursuant to a resolution approving such termination which is approved by a two-thirds (2/3) vote of those Class A Members of the Association who are present in person or by proxy and voting at a meeting of Members duly held in accordance with the provisions of the By-Laws of the Association.

9.02  Amendments by Declarant. During any period in which Declarant retains the right to appoint and remove any Directors and Officers of the Association, Declarant may unilaterally amend this Declaration by an instrument in writing filed and recorded in the Land Records of the Superior Court of Cobb County, Georgia, without the approval of any Member or mortgagee; provided, however, that (i) in the event that such amendment materially alters or changes any Owner's right to the use and enjoyment of such Owner's Lot or of the Common Property as set forth in this Declaration or if such amendment materially adversely affects the title to any Lot, such amendment shall be valid only upon the written consent thereto by a majority in number of the then existing Members affected thereby, or (ii) in the event that such amendment would materially and adversely affect the security title and interest of any mortgagee, such amendment shall be valid only upon the written consent thereto of all such mortgagees so affected. Any amendment made pursuant to this Section 9.02 shall be certified by Declarant as having been duly approved by Declarant, and such Members and mortgagees if required and shall be effective only upon recordation or at such later date as shall be specified in the amendment itself. Each Owner, by acceptance of a deed or other conveyance to a Lot, agrees to be bound by such amendments as are permitted by this Section 9.02 and further agrees that such Owner's consent shall not be required to any amendment of this Declaration or any other instruments relating to the Development (a) if such amendment is necessary to bring any provision hereof or thereof into compliance or conformity with the provisions of any applicable governmental statute, rule or regulation or any judicial determination which shall be in conflict therewith, (b) if such amendment is necessary to enable any reputable title insurance company to issue title insurance coverage with respect to any Lots subject to this Declaration, (c) if such amendment is required by an institutional or governmental lender, purchaser or guarantor of mortgage loans, including, for example, the Veterans Administration, Federal National Mortgage Association, or Federal Home Loan Mortgage Corporation, to enable such lender or purchaser to make or purchase mortgage loans on any Lot subject to this Declaration, (d) if any such amendment is necessary to enable any governmental agency or reputable private insurance company to insure mortgage loans on the Lots subject to this Declaration or (e) if such amendment is necessary to correct a scrivener's error in the drafting of this Declaration; provided that any such amendment shall be subject to Subparagraphs (i) and (ii) above.

9.03  Amendments by Association. Amendments to this Declaration, other than those authorized by Section 9.02 hereof, shall be proposed and adopted in the following manner:

    (a)  Notice of the subject matter of the proposed amendment shall be included in the notice of the meeting of the Association at which such proposed amendment is to be considered and shall be delivered to each member of the Association.

    (b)  At such meeting, a resolution adopting a proposed amendment may be proposed by either the Board or by Members of the Association. Such amendment must be approved by Members holding at least two-thirds (2/3) of the total votes in the Association; provided, however (i) that any amendment which materially and adversely affects the security title and interest of any mortgagee must be approved by such mortgagee and (ii) during any period in which Declarant has the right to appoint and remove officers and directors of the Association, such amendment must be approved by Declarant.

    (c)  The agreement of the required percentage of the Owners and, where required, the Declarant and any mortgagee, to any amendment of this Declaration shall be evidenced by their execution of such amendment, or, in the alternative, and provided that Declarant does not then have the right to approve such amendment, the sworn statement of the President and any Vice President or the Secretary of the Association attached to or incorporated in the amendment executed by the Association, which sworn statement shall state unequivocally that the Agreement of the required parties was lawfully obtained. Any such amendment of this Declaration shall become effective only when recorded or at such later date as may be specified in the Amendment itself.


 

ARTICLE X.
ANNEXATION AND FUTURE DEVELOPMENT

10.01  Annexation. For so long as Declarant has authority to appoint and remove directors and officers of the Association, additional real property may be annexed to the Property by the Declarant without the consent of the Class A Members or any other person or entity. Such annexation, shall be accomplished by filing in the Office of the Clerk of the Superior Court of Cobb County an approved subdivision plat describing the real property to be annexed to the Property and by including on such subdivision plat a statement that expressly sets forth the Declarant's intention to make such annexed real property subject to the provisions of this Declaration; or filing an amendment to the Declaration which has been consented to by the owners of the real property to be annexed if such real property is owned by someone other than Declarant. At the expiration of Declarant's right to appoint and remove directors and officers of the Association, no real property may be annexed to the Property unless such annexation is approved by a two-thirds (2/3) vote of the Members of the Association who are present in person or by proxy and voting at a meeting of Members duly held in accordance with the provisions of the By-Laws of the Association.


 

ARTICLE XI.
MISCELLANEOUS

11.01  No Reverter. No restriction herein is intended to be, or shall be construed as, a condition subsequent or as creating a possibility of reverter.

11.02  Severability. A determination by a court that any provision hereof is invalid for any reason shall not affect the validity of any other provision hereof.

11.03  Headings. The headings of the Articles and Section hereof are for convenience only and shall not affect the meaning or interpretation of the contents of this Declaration.

11.04  Gender. Throughout this Declaration, the masculine gender shall be deemed to include the feminine and neuter, and the singular, the plural, and vice versa.

11.05  Notices. All amendments, notices, requests, objections, waivers, rejections, agreements, approvals, disclosures or consent of any kind made pursuant to this Declaration, whether made by the Declarant, the Association, the ACC, the Owner, or any other person, shall be in writing. All such writings shall be sufficient only if deposited in the United States Mail, with sufficient postage, and sent to the following addresses:

        (a)  Declarant:  KBJ Corporation
                         1040 Woodruff Plantation Parkway
                         Marietta, Georgia 30067
                         Attn:  Chairman of the Board

        (b)  Owners:     Each Owner's address as registered with the
                         Association in accordance with the By-Laws.

Any written communication transmitted in accordance with this Section 11.05 shall be deemed received on the third (3rd) day following the day such written notice is deposited in the United States Mail.

11.06  Insurance.

    (a)  At all times during the term of this Declaration, the Association, its successors and assigns, shall be required to keep any and all recreational facilities and any other improvements located on the Common Property fully insured by a reputable insurance company authorized to transact business in the State of Georgia with (i) fire, vandalism, malicious mischief and "all risk" coverage insurance in an amount adequate to cover the cost or replacement of such improvements in the event of loss of any and/or all of such improvements, fixtures and contents thereof; and (ii) ‘public liability insurance in such amounts as shall be determined by the Board of Directors as appropriate for the type of recreational activities which shall be allowed on the Common Property. Any such policies of insurance shall require that the certificate holders and insured be given thirty (30) days prior written notice of any cancellation of such policies.

    (b)  Immediately after the damage or destruction by fire or other casualty to all or any portion of any improvement covered by insurance written in the name of the Association, the Board or its duly authorized agent shall proceed with the filing and adjustment of all claims arising under such insurance and obtain reliable and detailed estimates of the cost of repair or reconstruction of the damaged or destroyed property. ‘Repair or reconstruction, as used in this paragraph, means repairing or restoring the property to substantially the same condition and location that existed prior to the fire or other casualty.

    Any damage or destruction shall be repaired or reconstructed unless, within sixty (60) days after the casualty, at least seventy-five percent (75%) of the total Association vote entitled to vote thereon, and, so long as the Declarant has the right to appoint and remove directors and officers, the Declarant, otherwise agree. If for any reason either the amount of the insurance proceeds to be paid as a result of such damage or destruction, or reliable and detailed estimates of the cost or repair or reconstruction, or both, are not made available to the Association within such period, then the period shall be extended until such information shall be made available; provided, however, such extension shall not exceed one hundred and twenty (120) days. No Mortgagee shall have the right to participate in the determination of whether damage or destruction shall be repaired or reconstructed.

    If the damage or destruction for which the insurance proceeds are paid is to be repaired or reconstructed and such proceeds are not sufficient to defray the cost thereof, the Board shall, without the necessity of a vote of the Association's Members, levy a special assessment. Additional assessments may be made in like manner at any time during or following the completion of any repair or reconstruction. If the funds available from insurance exceed the costs of repair or reconstruction or if the improvements are not repaired or reconstructed, such excess shall be deposited for the benefit of the Association.

    In the event that it should be determined by the Association in the manner described above that the damage or destruction shall not be repaired or reconstructed and no alternative improvements are authorized, then in that event the property shall be restored to its natural state and maintained as an undeveloped portion of the Community in a neat and attractive condition.

    (c)  The deductible for any casualty insurance policy carried by the Association shall, in the event of damage or destruction, be allocated among the persons who are responsible hereunder for maintenance of the damaged or destroyed property.

    (d)  In addition to the coverage described hereinabove, the Association may obtain such additional amounts and types of insurance as may be required from time to time, by either the Veterans Administration or Federation Housing Administration, their successors and assigns, for similar type residential subdivision communities.


 

ARTICLE XII.
MORTGAGEE PROVISIONS

The following provisions are for the benefit of holders of first mortgages on Lots in the Development. The provisions of this Article apply to both this Declaration and to the By-Laws, notwithstanding any other provisions contained therein.

12.01  Notices of Action. An institutional holder, insurer, or guarantor of a first mortgage, who provides written request to the Association (such request to state the name and address of such holder, insurer, guarantor and the Residence number, therefore 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 Development or which affects any Residence on which there is a first mortgage held, insured, or guaranteed by such eligible holder;

    (b)  any delinquency in the payment of assessments or charges owed by an Owner of a Residence subject to the mortgage of such eligible holder, where such delinquency has continued for a period of sixty (60) days; provided, however, notwithstanding this provision, any holder of a first mortgage, upon request, is entitled to written notice from the Association of any default in the performance by an Owner of a Residence of any obligation under the Declaration or By-Laws of the Association which is not cured within sixty (60) days;

    (c)  any lapse, cancellation, or material modification of any insurance policy maintained by the Association; or

    (d)  any proposed action which would require the consent of a specified percentage of eligible mortgagees.

12.02  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 Residence in the cases of distribution to such Owner of insurance proceeds or condemnation awards for losses to or a taking of the Common Property.

12.03  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 Residence.

12.04  Amendment by Board. Should the Veterans Administration, the Federal National Mortgage Association, or the Federal Home Loan Mortgage Corporation subsequently delete any of their respective requirements which necessitate the provisions of this Article or make any such requirements less stringent, the Board, without approval of the Owners, may cause an amendment to this Article to be recorded to reflect such changes.

12.05  App1icabilitv of Article XII. Nothing contained in this Article shall be construed to reduce the percentage vote that must otherwise be obtained under the Declaration, By-Laws, or Georgia law for any of the acts set out in this Article.

12.06  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 thirty (30) days of the date of the Association's request.


 

IN WITNESS WHEREOF, the Declarant has caused this Declaration to be duly executed and sealed as of the day and year first above written.

Signed, sealed and delivered            KBJ CORPORATION, a Georgia corporation
in the presence of:

_______________________________       By:_____________________________________
Unofficial Witness                               Jan J. Kilic
                                          Its: President

_______________________________
Notary Public

My commission expires:

                                                        [CORPORATE SEAL]

  (NOTORIAL SEAL)

The Association, by the execution hereof, acknowledges and agrees that the Association is hereby bound by all of the Association's obligations under this Declaration of Covenants, Restrictions and Easements.

IN WITNESS WHEREOF, the Association, acting through its duly authorized officer, has caused this Declaration to be executed and sealed as of the day and year first above written.

Signed, sealed and delivered            CALVARY LAKE HOMEOWNERS ASSOCIATION, INC.
in the presence of:

_______________________________       By:_____________________________________
Unofficial Witness                               Jan J. Kilic, President

_______________________________
Notary Public

My commission expires:

                                                        [CORPORATE SEAL]

       (NOTORIAL SEAL)


 

Exhibit A

CALVARY LAKE S/D - UNIT I
Plat Book 153, Page 63

ALL THAT TRACT OR PARCEL OF LAND LYING AND BEING IN LAND LOT 319, 20th DISTRICT, 2nd SECTION, COBB COUNTY, GEORGIA, AND BEING UNIT I, CALVARY LAKE SUBDIVISION, AND BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS:

Beginning at the southeast intersection of the rights-of-way of Cannon Way (5O' R/W) and Mount Calvary Road (30' from the centerline to the right-of-way) and running thence along the south right-of-way of Cannon Way S 89o14'03" E a disatance of 849.57 feet to a point;  thence running S 00o46'11" W a distance of 232.82 feet to a point;  thence running N 89o05'28" W a distance of 13.44 feet to the edge of a lake;  thence running northwesterly and following the meanderings of the edge of the lake a distance of 460 feet, more or less, to a point on the south right-of-way of Cannon Way (said meandearing distance along the lake having a tie-line from the pervious point of N 55o40'31" W for a distance of 421.12 feet);  thence running at or near the western edge of a lake and being the rear of the lots in Unit I, Calvary Lake S/D as recorded in Plat Book 153, Page 63, Cobb County Superior Court the following courses and distances:  S 10o41'52" E a distance of 217.89 feet; S 07o26'07" E a distance of 85.21 feet to a point;  S 05o57'19" W a distance of 86.15 feet;  S 2501115711 E a distance of 91.55 feet;  S 1803310811 E a distance of 119.96 feet;  S 3905510611 W a distance of 90.84 feet;  N 87%G'36" W a distance of 172.86 feet;  S 49~38'51" E a distance of 197.39 feet;  S 1201614411 F. a distance of 51.61 feet;  S 4405613111 ~ a distance of 50.26 feet;  S 4902310011 E a distance of 122.23 feet;  S 1701492611 E a distance of 85.64 feet to a point;  thence leaving the edge of the lake and crossing the end of the dam S 3503613515 E a distance of 75.93 feet to a point near the top of the dam;  thence running 8902912211 E a distance of 117.44 feet to a point below the base of the dam;  thence running S 2104414111 E a distance of 150.00 feet to a point;  thence running S 56~36'17" W along the south side of lot 59 a distance of 198.00 feet to a point;  thence continuing along the south side of lot 59 S 89049'49" W a distance of 125.00 feet to the east right-of-way of Unity Drive;  thence running along the east right-of-way of Unity Drive (50' R/W) S QQ0]~Qt4]~1. E a distance of 35.00 feet to a point;  thence running across the end of Unity drive and along the south side of lot 14 S 89~49'49" W a distance of 200.00 feet to a point;  thence running N 4205910711 W a distance of 98.58 feet to a point at the southeast corner of property now or formerly owned by Patrick and Deborah Parker;  thence running along the Parker property N 150441591 W a distance of 153.93 feet to an iron pin at property now or formerly owned by Mrs. Clyde Rogers;  Thence running along the Rogers property N 1505611111 W a distance of 259.15 feet to an iron pin;  thence running along the Rogers property S 740131111 W a distance of 338.98 feet to the easterly right-of-way of Mount Calvary Road (R/W is 30 feet from the centerline at this point);  thence running along the easterly right-of-way of Mount Calvary Road and following the curvature thereof an arc distance of 141.56 feet (said arc having a radius of 1,466.49 feet, a chord bearing of N 13033 13951 W and a chord distance of 141.50 feet) to a point;  thence continuing along said right-of-way and following the curvature thereof an arc distance of 229.80 feet (said arc having a radius of 583.46 feet, a chord bearing of N OO~O5'O9" E and a chord distance of 228.31 feet) to a point;  thence continuing along said right-of-way N ].100554fl E a distance of 639.28 feet to the south right-of-way of Cannon Way and the point of beginning.

Said tract contains 19.11 acres



 

CALVARY LAKE SUBDIVISION - LAKE AREA

 

ALL THAT TRACT OR PARCEL OF LAND LYING AND BEING IN LAND LOT 319, 20th DISTRICT, 2nd SECTION, COBB COUNTY, GEORGIA, AND BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS:

Beginning at a point on the south right-of-Way of Cannon Way (50' R/W) 485.19 feet easterly of the southeast intersection of the rights-of-way of Cannon Way and Mount Calvary Road (Right-of-way is 30 feet from the centerline of Mount Calvary Road at this location) as measured along the south right-of-way of Cannon Way and running thence along the edge of the lake in a southeasterly direction and following the meanderings thereof a distance of 460 feet, more or less, to a point (said point being a bearing of S 55040l31~ E and a distance of 421.12 feet from the point of beginning);  thence following along or near the edge of the easterly side of the lake the following courses and distances:  S 3903~Q31 E a distance of 143.00 feet;  S 19~36'28" F. a distance of 190.40 feet;  S 0102515811 F. a distance of 118.10 feet;  S 10012*41*3 E a distance of 240.00 feet to a point near the water's edge;  thence leaving the edge of the lake and running thence S 42040?33~ W a distance of 270.00 feet to a point below the dam or the lake;  thence running S 98o29'22" W a distance of 117.44 feet to a point near the toe of the dam;  thence running N 3503613511 W a distance of 75.93 feet to a point near the western edge of the lake;  thence the following courses and distances along or near the western edge of the lake and also being the rear of the lots in Unit I, Calvary Lake Subdivision:  N l7~l426~' W a distance of 85.64 feet;  N 4902310&I W a distance of 122.23 feet;  N 44!56'3]i' W a distance of 50.26 feet;  N 12016544*3 W a distance of 51.61 feet;  N 4903815151 W a distance of 197.39 feet;  S 8704753655 E a distance of 172.86 feet;  N 3905510611 E a distance of 90.84 feet;  N 180335085 E a distance of 119.96 feet;  N 2501115711 W a distance of 91.55 feet;  N 0505711911 E a distance of 86.15 feet;  N 07026507*5 W a distance of 85.21 feet; N 1004195235 W a distance of 217.89 feet to the south right-of-way of Cannon Way and the Point of Beginning.

Said tract contains 8.3 acres, more or less


 

Exhibit B

PROPOSED UNIT II - CALVARY LAKE S/D

ALL THAT TRACT OR PARCEL OF LAND LYING AND BEING IN LAND LOTS 319 & 320, 20th DISTRICT, 2nd SECTION, COBB COUNTY, GEORGIA, AND BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS:

To find the TRUE POINT OP BEGINNING, begin at the southeast intersection of the rights-of-way of Mount Calvary Road (60' R/W) and Cannon Way (50' R/W) and run along the south right-of-way of Cannon Way S 89'14'03' E a distance of 849.57 feet to the northwest corner of lot 17, Battlefield West S/D and an iron pin;  thence run along the west side of said lot 17, S OO~46'll" W a distance of 232.82 feet to the southwest corner of said lot 17; thence run N 8905'28" W a distance of 13.44 feet to a point at or near the edge of a lake of approximately 8.5 acres in size;  thence run the following courses and distances along or near the edge of said lake: S3937'SS" E, 143.00; S 1936'28" E, 190.40; S O125'58'~ E, 118.10 feet to a point being the TRUE POINT OF BEGINNING:  running thence S 8908'.36" E a distance of 306.46 feet along property now or formerly owned by James M. & Geraldine P. Brooks to an iron pin; thence running S 62'14'24" E a distance of 55.97 feat to and iron pin;  thence running S 89'O528'~ E a distance of 283.93 feet to an iron pin at the property now or formerly owned by Wilbur L. Reed;  thence along the Reed property S 8916 ‘19" E a distance of 636.81 feet to an iron pin at the property now or formerly owned by George K. Ganaway;  thence along the Ganaway property S 02~13'2B' W a distance of 897.60 feet to a point at the property now or former1y owned by Elizabeth M. Hays; thence along the Hays property N 8820'53" W a distance of 364.04 feet to a point in the center of a stream;  thence following the meanderings and flow of the stream the following courses and distances:  S 430229005 W, 132.79 feet;  S 5922'21" W, 98.38 feet;  S 4551l7" W, 63.90 feet to the centerline of Noses Creek;  thence following the meandearings and flow of Noses Creek the following courses and distances:  S Sll7'OO" W, 47.99 feet;  S 76'09'17" W. 182.74 feet;  S 620079325* W, 322.49 feet;  S 51'25'27 W, 181.67 feet to the west line of lot 9, Bramlett Place S/D;  thence along the east sides of lots 9, 8, & 7 of said Bramlett Place S/D N 0024'26" E a distance of 354.33 feet to an iron pin;  thence along the north lines of lots 7, 6, 5, & 1 S 8904V49" W a distance of 797.86 feet to an iron pin located at the east right-of-way of Mount Calvary Road;  thence running along the east right-of-way of Mount Calvary Road N 21.59'39" W a distance of 196.14 feet to a point;  thence following the curvature of the east right-of-way of Mount Calvary Road an arc distance of 225.95 feet, said arc having a chord distance of 225.95 and a chord bearing of N 14 2238'31" W to an iron pin located at the property now or formerly owned by Patrick & Deborah Parker;  thence running along the south line of the Parker property N 7504*3.9I1 E a distance of 300.09 feet to an iron pin;  thence running S 42~59'07" E a distance of 98.58 feet to a point;  thence running N 890491491* E a distance of 200.00 feet to a point;  thence running N 0O'10'l1~' W a distance of 35.00 feet to a point;  thence running N 89.49'49" E a distance of 125.00 feet to a point;  thence running N 5626'17" E a distance of 198.00 feet to a point;  thence running N 2144~41." W a distance of 150.00 feet to a point below the dam of the lake;  thence running N 42~40'33" E a distance of 270.00 feet to a point;  thence running along or near the edge of the lake N 1012'40" W a distance of 240.00 feet to the TRUE POINT OF BEGINNING.

SAID TRACT CONTAINS 40.93 ACRES