Coca Lake Covenants
DECLARATION
OF
COVENANTS, CONDITIONS AND RESTRICTIONS
FOR
COCA LAKE
Charles H. Ford, Jr.
Sprouse, Tucker & Ford, P.C.
1025 First Avenue
Columbus, Georgia 31901
GEORGIA HARRIS COUNTY
FILED IN OFFICE: 02-18-88
TIME: 8:15 A.M.
RECORDED IN OFFICE: 2-18-88
REBECCA B. WYNN, CLERK
This copy if not for official use. It is only for the purpose of convenience and not to be relied upon for a finalopinion - June 13, 2002
TABLE OF CONTENTS
ARTICLE SECTION SUBJECT PAGE
I DEFINITIONS
II PROPERTY SUBJECT TO THIS DECLARATION:
1 Property Hereby Subjected to this
III MEMBERSHIP AND VOTING RIGHTS IN THE
ASSOCIATION
IV PROPERTY RIGHTS IN THE ASSOCIATION PROPERTIES
V ASSESSMENTS
1 Creation of the Lien and Personal Obligation
5 Quorum for Any Action Authorized Under
7 Date of Commencement of Annual Assessments:
8 Effect of Non-Payment of Assessments: The
Personal Obligation of the Owner; The Lien;
VII INSURANCE AND CASUALTY LOSSES
VIII ARCHITECTURAL CONTROL
IX EXTERIOR MAINTENANCE
2 Other Properties
11 Oil and Mining Operations; Wells; Pumping
XI GENERAL PROVISIONS
3 Notices 33
4 Enforcement 33
5 Notice of Default to Mortgagees 34
6 Consent of first Mortgagees Regarding Exterior Appearance 34
7 Priority of First Mortgagees 34
8 Leasing of Lots 34
9 Severability 35
10 Authorized Action 35
11 Captions 35
12 Gender 35
EXHIBITS
Which Declarant May Add as a Matter of Right
DECLARATION
OF
COVENANTS, CONDITIONS AND RESTRICTIONS
FOR
COCA LAKE
STATE OF GEORGIA
COUNTY OF MUSCOGEE
THIS DECLARATION made this 18th day of February, 1988 by
GEORGE C. WOODRUFF CO., a Georgia Corporation, SCHUSTER ENTERPRISES, INC., a Georgia corporation, and FRANK D. FOLEY, III, a resident of Muscogee County, Georgia (hereinafter collectively called the "Declarant");
WHEREAS, the Declarant is the owner of the property described in Exhibit "A" attached hereto and, by reference, made a part hereof and
desires to create thereon an exclusive residential community having
certain amenities for the use and benefit of all property owners within
such community; and
WHEREAS, the Declarant desires to provide for the preservation of
the values and amenities in said community and for the maintenance of
the amenities; and, to this end, desires to subject the property de-
scribed in Exhibit "A", together with such additions as may hereafter be made pursuant to Article II hereof, to the covenants, restrictions,
easements, affirmative obligations, charges and liens hereinafter set
forth, each of which is intended for the benefit of said property and
each owner of any part thereof; and
WHEREAS, the Declarant deems it desirable, for the efficient
preservation of the values and amenities in said community, to create an agency to which can be delegated and assigned the power and authority of
maintaining and administering the amenities, administering and enforcing
the covenants governing same and collecting and disbursing all assess-
ments and charges necessary for such maintenance, administration and enforcement, as hereinafter provided; and
WHEREAS, the Declarant has caused to be incorporated under the laws of the State of Georgia a non-profit corporation known as Coca Lake
Homes Association, Inc. for the purpose of exercising the functions aforesaid and which are hereinafter more fully set forth;
NOW, THEREFORE, the Declarant hereby declares that the property described in Exhibit "A" attached hereto and, by reference, made a part hereof and such additions thereto as may hereafter be made pursuant to Article II hereof is and shall be held, transferred, sold, conveyed,
given, donated, leased, occupied and used subject to the covenants, restrictions, easements, affirmative obligations, charges and liens (hereinafter sometimes referred to as the "Covenants") hereinafter set
forth.
ARTICLE I
DEFINITIONS
Section 1. Definitions. The following words and terms when used
in this Declaration or any Supplemental Declaration (unless the context
shall clearly indicate otherwise) shall have the following meanings:
(a) "Apartment Plot" shall mean and refer to any improved or
unimproved parcel of land within the Properties which is used or intend-
ed for use as a site for one or more buildings each containing one or
more Apartment Units and which is shown on any recorded plat of any part of the Properties.
(b) "Apartment Unit" shall mean and refer to a designated part of a building located on an Apartment Plot which part is used or intended for use as a dwelling for a single family.
(c) "Association" shall mean and refer to Association of Coca Lake
Homeowners, Inc., a Georgia non-profit corporation, its successors and assigns.
(d) "Association Properties" shall mean and refer to all property
and improvements thereon, if any, now or hereafter owned, leased, or in
the possession of the Association including but not limited to, that
property which is designated Association Properties on the plat of
survey referred to in Exhibit "B" attached hereto and, by reference,
made a part hereof, which exhibit contains a legal description of the
Association Properties to be owned by the Association at the time of the conveyance of the first Lot shown on said plat of survey to an owner for
purposes of residential occupancy. All Association Properties are to be devoted to and intended for the common use and enjoyment of the Owners,
their families, guests of the Owners, persons occupying residential accommodations of Owners on a guest or tenant basis, and visiting members of the general public (to the extent permitted by the Association’s Board of Directors) subject to the published rules and regulations
adopted by the Association’s Board of Directors; provided,
however, that any property leased by the Association shall lose its character as Association Properties upon the expiration of such lease.
(e) "Condominium Plot" shall mean and refer to any improved or unimproved parcel of land located within the Properties which is used or intended for use as a site for one or more buildings each containing one
or more Condominium Unit and which is shown on any recorded plat of any part of the Properties.
(f) "Condominium Unit" shall mean and refer to a condominium unit
as defined in the Georgia Condominium Act.
(g) "Declarant" shall mean and refer to George C. Woodruff Co., a Georgia corporation, Schuster Enterprises, Inc., A Georgia corporation
and Frank D. Foley, III a resident of Muscogee County, Georgia, collectively, the persons executing this Declaration, or (2) any successor-in-title to said persons to all or some portion of the property then
subject to this Declaration; provided, however, that such successsor-in-title shall acquire such property for purposes of development or
sale; and, provided further, that in the instrument of conveyance to any such successor-in-title, such successor-in-title is expressly designated
as the "Declarant" hereunder by the grantor of such conveyance, which grantor shall be the "Declarant" hereunder at the time of such convey-
ance; or (3) should any of the property subject to this Declaration
become subject to a first mortgage given by "Declarant" as security for
the repayment of a loan, then all of the rights, privileges and options
herein reserved to "Declarant" shall inure to the benefit of the holder
of such mortgage upon becoming the owner of all the property then
subject thereto through whatever means or the purchase of all such
property at a judicial or foreclosure sale made pursuant to any power of
sale contained in such mortgage; provided, however, that all rights,
privileges and options herein reserved to "Declarant" may be transferred
to the successor-in-title of any such acquirer of title to such property, provided any such successor-in-title shall acquire, for the purpose
of development or sale all or some portion of such property; and,
provided further, that in the instrument of conveyance to such success-
sor-in-title, such successor-in-title 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. In the event that
persons specified in both (2) and (3) above become entitled to succeed
to the interests of "Declarant" as therein provided, then, as between
such persons, any person entitled to be "Declarant" by virtue of (3)
above, shall be "Declarant" instead of any person entitled to be
Declarant by virtue of (2) above.
(h) "Living Unit" shall mean and refer to any Single Family Residence, Condominium Unit, or Apartment Unit.
(i) "Lot" shall mean and refer to any Single Family Plot, Apartment
Plot, or Condominium Plot.
(j) "Member" shall mean and refer to all those persons who are
members of the Association as provided for in Article III, Section 1,
hereof.
(k) "Mortgage" shall mean and refer to any security instrument by
means of which title to property is conveyed or encumbered to secure a
debt including, but not limited to, security deeds, loan deeds and deeds
to secure debt.
(l) "Mortgagee" shall mean and refer to the holder of record,
whether it be one or more persons, of a mortgage.
(m) "Owner" shall mean and refer to the record owner, whether it be
one or more persons, of fee simple title to any real property situated
within the Properties excluding, however, the Association and those
persons having such interest merely as security for the performance of
an obligation.
(n) "Person" shall mean and refer to an individual, corporation, partnership, association, trust or any other legal entity.
(o) "Properties" shall mean and refer to the property described in
Exhibit "A" attached hereto and, by reference, made a part hereof and
such additions thereto as my be made pursuant to Article II hereof.
(p) "Single Family Plot" shall mean and refer to any improved or
unimproved parcel of land located within the Properties which is used or
intended for use as a site for a Single Family Residence and which is
shown on any recorded plat of any part of the Properties.
(q) "Single Family Residence" shall mean and refer to a structure (attached or detached) which is used or intended for use as a dwelling
for a single family.
ARTICLE II
PROPERTY SUBJECT TO THIS
Section 1. Property Hereby Subjected to this Declaration. The
property which is and shall be held, transferred, sold, conveyed, given,
donated, leased, occupied and used subject to these Covenants consists
of that which is described in Exhibit "A" attached hereto and, by
Sections 2. Additions to the Properties. Additional property may
become subject to this Declaration in the following manner:
(a) Additions by the Declarant as a Matter of Right. The
Declarant, its successors or assigns, shall have the right, without
consent of the Association, at any time or times on or before December
31, 2003, to bring within the scheme of this Declaration and make a part
of the Properties all or any portion of the property described in
Exhibit "C" attached hereto and, by reference, made a part hereof not theretofore made a part of the Properties; provided, however, that such annexation shall require the prior written determination of the Veterans Administration as being in accordance with the general plan of develop-
ment attached hereto as Exhibit "D" and, by reference, made a part
hereof or such other general plan of development as may be approved by
the Veterans Administration; and provided further that, should the
Declarant, its successors or assigns, elect not to subject such property
or any part thereof to the scheme of this Declaration, the Declarant,
its successors or assigns, shall not be obligated to imposed any covenants thereon or if any covenants are imposed thereon, shall not be
obligated to make such covenants the same as or similar to the Covenants contained herein. Notwithstanding anything contained herein which might
be otherwise interpreted to produce a contrary result, this Declaration
does not create any charge, lien, or any other encumbrance or restriction
on or affect in any way the title to any property other than
that which is described in Exhibit "A" attached hereto and, by reference,
made a part hereof. The additions authorized under this sub-
section shall be made by filing of record one or more Supplementary
Declarations with respect to the additional properties, executed by the
Declarant, its successors or assigns, which shall extend the scheme of
the Covenants contained herein to such properties and thereby subject
such additions to assessment for their just share of the Association
expenses. Said Supplementary Declarations may contain such complemen-
tary additions and modifications of the Covenants contained herein as
may be necessary to reflect the different character of the additional
properties (i.e., single family attached residences, patio homes,
townhouses, condominium residences, apartments and commercial
facilities) and as are not inconsistent with the scheme of this Declaration;
provided, however, that improvements constructed or to be con-
structed on such additional properties shall be of comparable or higher quality construction and aesthetically compatible in terms of architec-
tural style with the improvements constructed or to be constructed on
the property described in Exhibit "A" attached hereto. In no event,
however, shall any such Supplementary Declaration revoke, modify or add to the Covenants established by this Declaration regarding the property,
described in said Exhibit "A".
(b) Additions Pursuant to Association Approval. Upon approval in
writing of the Association pursuant to a vote of its Members and upon
compliance with such terms and conditions as may be imposed by the Association pursuant to such vote, the owner of any property, other than
that which may be subjected to the scheme of this Declaration by the Declarant, its successors or assigns, as a matter of right, who desires
to add it to the scheme of this Declaration and to subject it to the
jurisdiction of the Association, may file of record a Supplementary
Declaration as described in subsection (a) above except that each such
Supplementary Declaration shall be executed jointly by the owner of the
property thus being added and the Association. Notwithstanding the foregoing, improvements constructed or to be constructed on such addi-
tional properties shall be of comparable or higher quality construction
and aesthetically compatible in terms of architectural style with the
improvements constructed or to be constructed on the property described in Exhibit "A" attached hereto. Approved by the Association shall
require the assent of two-thirds (2/3) of the votes of each class of
Members of the Association voting in person or by proxy at a meeting
duly called for this purpose, written notice of which shall be sent to
all Members at least 30 days in advance and shall set forth the purpose
of the meeting. The quorum required for such meeting shall be the
presence thereat of Members and/or proxies entitled to cast sixty
percent (60%) of the votes of each class of Members of the Association.
If the required quorum is not forthcoming at such meeting, another
meeting may be called, subject to the notice requirements set forth
herein, and the required quorum at any such subsequent meeting shall be
forty percent (40%) of the votes of each class of Members of the Association; provided, however, that no such subsequent meeting shall be held more than 60 days following the preceding meeting.
Section 3. Additional Owners to Become Members. Upon the filing of any Supplementary Declaration as provided for in Section 2 of this
Article II, the owners of such property shall become members of the Association and, subject to the provisions of Article III hereof, such
owners and their successors in title shall thereby acquire with respect
to such property, the rights and privileges granted herein to Members of
the Association.
Section 4. Mergers. Upon a merger or consolidation of the Asso-
cation with another association, its properties, rights and obligations
may, by operation of law, be transferred to another surviving or consol-
idated association, or, in the alterative, the properties, rights and
obligations of another association may, by operation of law, be added to
the properties of the Association as a surviving corporation pursuant to
a merger. The surviving or consolidated association may administer the
Covenants contained herein within the Properties, together with the covenants and restrictions established upon any other properties as one
plan. Except as hereinafter provided, no such merger or consolidation
shall effect any revocation, change of or addition to the Covenants
established by this Declaration within the Properties. No such merger
or consolidation shall be effective, however, unless first approved by
the Association’s Board of Directors and by Members entitled to cast at
least two-thirds (2/3) of the votes of each class of members.
ARTICLE III
Section 1. Membership. The membership of the Association shall
consist of (a) every record Owner, whether it be one or more persons, of
fee simple title to any real property situated within the Properties
excluding, however, the Association and those persons having such
interest merely as security for the performance of an obligation, and
(b) the Declarant subject to the following provisions of this Article
III. Membership shall be appurtenant to and may not be separated from
ownership of such real property, which ownership shall be the sole
qualification for membership.
Section 2. Voting Rights. Subject to the following provisions of
this Section 2, the Association shall have two classes of voting member-
ship: Class "A" and Class "B".
CLASS "A": Class "A" Members shall be all those Owners of
Single Family Plots, Condominium Units, and Apartment Plots with
the exception of the Declarant (except as set forth under Class "B"
membership provisions below). A Class "A" Member shall be entitled to one vote for each Single Family Plot, Condominium Unit, and Apartment Unit which he owns.
CLASS "B": The Class "B" Member shall be the Declarant. The Class "B" member shall be entitled to three votes for each Single Family Plot, Condominium Unit, and Apartment Unit which it owns. The Class "B" membership shall cease and be converted to Class"A" membership upon the first of the following events to occur: (a) when the total votes outstanding in the Class "A" membership equal the total votes outstanding in the Class "B" membership unless (1) the Declarant at that time has the right to annex additional
property pursuant to Article II, Section 2(a), of the Declaration sufficient in quantity that, if annexed, the votes of the Class "B" member would exceed those of the Class "A" members, and (ii) the Declarant evidences its intent to exercise such right within a reasonable time thereafter by filing with the Association and the Veterans Administration an affidavit to that effect, (b) abolishment by the Declarant of its Class "B" membership evidenced by written notice thereof delivered to the Association, or (c) December 31, 2003.
The aggregate vote of all Members cast in respect of Apartment
Units shall not exceed forty-nine percent (49%) of the total vote
cast on any matter pending before the Association, and the votes
allocated to Apartment Units owned by Class "A" Members and Class
"B" Members as provided above shall be reduced pro-rata to the
extent necessary to comply with this limitation.
When any property entitling the Owner to membership as a Class "A"
member of the Association is owned of record by other than a single
natural person, the person entitled to cast the vote for such property
shall be designated by a certificate signed by the record owner or
owners of such property and filed with the Secretary of the Association.
Each such certificate shall be valid until revoked, superseded by a subsequent certificate or a change occurs in the ownership of such
property. The votes of the Members shall be cast under such rules and proce-
dures as may be prescribed in this Declaration or in the ByLaws of the
Association, as amended from time to time, or by law.
ARTICLE IV
PROPERTY RIGHTS IN THE ASSOCIATION PROPERTIES
Section 1. Easements of Enjoyment. Subject to the provisions of
these Covenants, the rules and regulations of the Association and any
fees or charges established by the Association, all Members of the Association, their families, guest of the Members, persons occupying residential accommodations of Members on a guest or tenant basis, and visiting members of the general public (to the extent permitted by the Association’s Board of Directors) subject to the published rules and regulations adopted by the Association’s Board of Directors, shall have
an easement of enjoyment in and to the Association Properties and such easement shall be appurtenant to and shall pass with the title to every Member’s lot.
Section 2. Title to Association Properties. The Declarant may retain legal title to the Association Properties described in Exhibit "B" attached hereto and. by reference, made a part hereof until the first conveyance of a Lot shown on the plat of survey referred to therein by the Declarant to an Owner for purposes of residential occupancy. Prior to or simultaneously with such conveyance, the Declarant shall convey said Association Properties to the Association free and clear of all liens and encumbrances together with all improvements thereon which must then be fully completed. If, as and when additional property is subjected to the scheme of this Declaration pursuant to Article II hereof, the Owner thereof shall, prior to or simultaneously with the first conveyance of a Lot contained therein to an Owner for purposes of residential occupancy, convey all Association Properties comprising a part of such additional property to the Association free and clear of all liens and encumbrances together with all improvements thereon which must then be fully completed.
Section 3. Extent of Easements. The rights and easements of
enjoyment in and to the Association Properties created hereby shall be subject to the following: (a) The right of the Declarant to the exclusive use of portions of the Association Properties reasonably required, convenient or incidental to, the improvement and sale of Lots including, but not limited to, sales and business offices, storage areas, construction yards and signs. Such right of the Declarant may be delegated by it to developers and builders having an interest in the Properties, shall be exercised so as to avoid any unnecessary inconvenience to or infringement upon the rights of others and shall continue until such time as such persons no longer own any Lot primarily for the purpose of sale or December 31, 2003, whichever shall first occur, without affecting any Member's obligation to pay assessments coming due during such period of time or the permanent charge and lien on any Member's Lot in favor of the Association; b) The right of the Association to borrow money for the purpose of improving the Association Properties and, with the prior written approval of Members entitled to cast at least three-fourths (3/4) of the votes of each class of Members or holders of at least three- fourths (3/4) of all first mortgages secured by Lots, to mortgage or otherwise burden or encumber said Association Properties;
(c) The right of the Association to take such steps as are reasonably necessary to protect the Association Properties against foreclosure; (d) The right of the Association to suspend the voting rights and right to use any Association recreational facilities of any Member for any period during which any such Member's assessment remains unpaid, and for a period not to exceed 60 days for any infraction by such Member of its published rules and regulations; (e) The right of the Association to charge reasonable admission and other fees for the use of any Association recreational facilities; (f) The right of the Association to abandon, partition, subdivide, sell, dedicate or transfer all or any part of the Association Properties for such purposes and subject to such conditions as may be agreed to by the Members entitled to vote thereon, provided that no such abandonment, partition, subdivision, sale, dedication or transfer, determination as to the purposes or as to the condition thereof, shall be effective unless first approved in writing by Members entitled to cast at least three-fourths (3/4) of the votes of each class of Members, holders of at least three-fourths (3/4) of all first mortgages secured by Lots and, in the case of a dedication, the Veterans Administration; and (g) The right of the Association to grant such easements and rights of way to such utility companies or public agencies or authorities as it shall deem necessary or desirable for the proper servicing and maintenance of the Association Properties or other property.ARTICLE V
ASSESSMENTS
Section 1. Creation of the Lien and Personal Obligation of Assessments. The Declarant hereby covenants and each Owner shall by acceptance of a deed, whether or not it shall be so expressed in such deed, be deemed to covenant and agree to all the terms and provisions of this Declaration and to pay to the Association: (a) annual assessments or charges; and (b) special assessments or charges for the purposes set forth in Section 4 of this Article V, such assessments to be fixed, established and collected from time to time as hereinafter provided. The annual and special assessments, together with such interest thereon and costs of collection thereof as hereinafter provided, shall be a charge and continuing lien on the property and improvements thereon against which each such assessment is made. Each such assessment, together with such interest thereon and cost of collection thereof as hereinafter provided, shall also be the personal obligation of the person who was the owner of such property at the time when the assess- ment first became due and payable. In the case of co-ownership of such property, all of such co-owners shall be jointly and severally liable for the entire amount of the assessment. Should the Association employ an attorney to collect any assessment, it shall be entitled to collect in addition thereto all costs of collection including reasonable attorney's fees.
Section 2. Purpose of Assessments. The annual assessments levied
by the Association shall be used exclusively for the acquisition, improvement, maintenance, and operation of the Association Properties; payment for services which the Association is authorized to provide including, but not limited to, taxes and insurance on the Association Properties, construction of improvements on the Association Properties, and repair, replacement and additions to the Association Properties; payment of the cost of labor, equipment, materials, management and supervision necessary to carry out its authorized functions; payment of principal, interest and any other charges connected with loans made to or assumed by the Association for the purpose of enabling the Association to perform its authorized functions; establishment and maintenance of an adequate reserve fund for maintenance, repairs and replacement of those portions of the Association Properties that must be replaced on a periodic basis; and other charges as may be required by this Declaration or that the Association or its Board of Directors shall determine to be necessary to meet the primary purposes of the Association. Special assessments shall be used for the purposes set forth in Section 4 of this Article V. Notwithstanding the levy of annual or special assessments as aforesaid, the Association shall be entitled to charge a reasonable user's fee for recreational facilities comprising a part of the Association Properties. First mortgagees of Single Family Plots, Apartment Plots, and Condominium Units and the first mortgagee, if any, of the Association Properties may, jointly or singly, pay taxes or other charges which are in default and which may or have become a charge against any Association Properties and may pay overdue premiums on hazard insurance policies, or secure new hazard insurance coverage on the lapse of a policy, for such Association Properties and first mortgagees making such payments shall be owed immediate reimbursement therefor from the Association. Each Owner shall be responsible for his own return of taxes on his Lot and for the payment of all taxes and governmental assessments, if any, assessed thereon by the taxing authorities.
Section 3. Annual Assessments. Until the year beginning January
1, 1989, the annual assessment shall not exceed $250.00 per Living Unit. From and after January 1, 1989, the maximum annual assessment shall be increased automatically, effective January lst of each year, to the
greatest of (i) one hundred five percent (105%) of the maximum annual assessment for the preceding year and (ii) an amount determined by increasing the original maximum annual assessment specified herein in conformance with the rise, if any, of the numerical rating for the preceding month of June above such rating for June, 1987, as established by the Atlanta, Georgia, Consumer Price Index for Urban Wage Earners and Clerical Workers, All Items, United States (published by the Department of Labor, Washington, D.C.), the successor thereto or other comparable price index should that described herein be discontinued or no longer made available to the Association. The method of computation to be employed when using the Consumer Price index referred to above shall be as follows: The Consumer Price Index numerical rating for the month of June, 1987, is 334.9. This will be the base rating. To determine the adjustment percentage to be applied for any subsequent year, divide this base rating (334.9) into the numerical rating established by the Consumer Price Index for the month of June preceding the proposed assessment year. The adjustment percentage shall be multiplied by the original maximum annual assessment specified herein to obtain the amount referred to in clause (ii) of the preceding paragraph. From and after January 1, 1989, the maximum annual assessment for any succeeding year may be increased above that established by the above described formula provided that any such increase shall have the assent of at least two-thirds (2/3) of the votes cast by each class of Members who are voting in person or by proxy at a meeting duly called for this purpose, written notice of which shall be sent to all Members not less than 30 days nor more than 60 days in advance of the meeting setting forth the purpose of the meeting.
The Association's Board of Directors shall, after consideration of current costs and future needs of the Association, fix the actual annual assessment for any particular year at an amount not to exceed the applicable maximum annual assessment. However, if the Board of Directors should fix such annual assessment at an amount less than the maximum annual assessment and it is subsequently determined by the Board that the amount assessed will not be sufficient, the Board shall have the power to make supplemental annual assessments but in no event shall the sum of the initial and supplemental annual assessments in any one year exceed the applicable maximum. Should the Board of Directors fail to fix the annual assessment for any particular year, the prior years assessment shall be continued automatically until such time as the Board shall act.
Section 4. Special Assessments for Capital Improvements. In
addition to the annual assessment authorized by Section 3 hereof, the Association's Board of Directors may levy special assessments for the purpose of defraying, in whole or in part, the cost of: construction or reconstruction on the Association Properties; unexpected maintenance, repair or replacement of the Association Properties and capital improve- ments thereon, if any, including the necessary fixtures and personal property related thereto; additions to the Association Properties; necessary facilities and equipment to offer the services authorized herein; and repayment of any loan made to the Association to enable it to perform the duties and functions authorized herein; provided, however, that any such assessment shall have the assent of two-thirds (2/3) of the votes cast by each class of Members who are voting in person or by proxy at a meeting duly called for this purpose, written notice of which shall be sent to all Members not less than 30 days nor more than 60 days in advance of the meeting setting forth the purpose of the meeting. Such special assessments in any one year may not exceed a sum equal to the amount of the annual assessment for such year except for emergency and other repairs required as a result of storm, fire, natural disaster or other casualty loss and may not be used to fund the reserve for maintenance, repairs or replacement of those portions of the Association Properties that must be replaced on a periodic basis.
Section 5. Quorum for Any Action Authorized Under Sections 3 and
4. At the first meeting called, as provided for in Sections 3 and 4 of this Article V, the presence at the meeting of Members or of proxies entitled to cast sixty percent (60%) of the votes of each class of Members shall constitute a quorum. If the required quorum is not forthcoming at the first meeting called, not more than two subsequent meetings may be called, subject to the notice requirements set forth in said Sections 3 and 4, and the required quorum at any such subsequent meeting shall be one-half (1/2) of the required quorum at the preceding meeting. No such subsequent meeting shall be held more than 60 days following the preceding meeting.
Section 6. Rate of Assessment. Unless otherwise expressly provid-
ed herein or in any Supplemental Declaration regarding property of a different character, both annual and special assessments shall be fixed at a uniform rate for each Living Unit; provided however, if different types of Living Units derive different benefits from the Association (i.e., some Living Units are served by a community sewage system owned and operated by the Association while other Living Units are served by individual septic tanks), the assessment for each type of Living Unit may be different to reflect the cost of such different benefits, but within each type the assessment must be uniform; provided further, differences in the benefits derived by Living Units relating to location on or proximity to lakes and ponds shall not be a valid basis for different assessments. Any amendment to this Declaration for the purpose of changing the method of determining assessments shall require, in addition to the requirements set forth in Article XI, Section 2, hereof, the prior written approval of holders of at least three-fourths (3/4) of all first mortgages secured by Living Units.
Section 7. Date of Commencement of Annual Assessments; Due Dates. The annual assessments provided for in this Article V shall be established on a calendar year basis and shall commence as to all Living Units on the first day of the month following the date upon which the Lot upon which a Living Unit has been or is to be constructed is subjected to this Declaration; provided, however, the annual assessment for each such Living Unit on which construction is not substantially complete or which is not occupied shall be reduced by seventy-five percent (75%) until the first day of the year following substantial completion of the improvements constituting the Living Unit and occupancy thereof. Each such annual assessment shall be adjusted according to the number of months remaining in the calendar year. Each such adjusted assessment shall be paid by the Owner to the Association within ten days after the date on which such assessment shall have commenced unless otherwise provided by the Association's Board of Directors. Thereafter, the Board of Directors shall fix the amount of the annual assessment and send written notice of same to every Owner subject thereto at least 30 days in advance of each annual assessment period. Unless otherwise provided by the Board of Directors, the annual assessment for each Living Unit shall become due and payable in full within ten days after the first day of January of each year and shall be paid to the Association when due without further notice from the Association. The due date of any special assessment shall be fixed in the resolution authorizing such special assessment. The Association shall, within five days after written request therefore, furnish to any Member liable for an assessment a certificate in writing signed by an officer of the Association setting forth whether said assessment has been paid. A reasonable charge, as determined by the Association's Board of Directors, may be made for the issuance of such certificates. Any such certificate shall be conclusive evidence, against all but the Member, of payment of any assessment therein stated to have been paid.
Section 8. Effect of Non-Payment of Assessments: The Personal
Obligation of the Owner; The Lien; Remedies of The Association.
(a) If an assessment is not paid on or before the date when due (being the dates specified in Section 7 hereof, unless other wise provided by the Board of Directors), then such assessment shall become delinquent and shall, together with such interest thereon and cost of collection thereof as hereinafter provided, thereupon become a continuing lien on the Single Family Plot or Apartment Plot upon which the Living Unit with respect to which the assessment is made has been or is to be constructed or the Condominium Unit with respect to which the assessment is made, as the case may be, which shall bind such Single Family Plot, Apartment Plot, or Condominium Unit in the hands of the then owner, his heirs, devisees, personal representatives, successors and assigns. In addition to the lien rights, the personal obligation of the Member who owns such Single Family Plot, Apartment Plot, or Condominium Unit to pay such assessment shall remain his personal obligation and shall not pass to his successors in title unless expressly assumed by them. If such successors in title assume such Member's personal obligation such Member shall nevertheless remain as fully obligated as before to pay to the Association any and all amounts which he was obligated to pay immediately preceding the transfer; and such Member and such successors in title assuming such liability shall be jointly and severally liable with respect thereto, notwithstanding any agreement between such Member and such successors in title creating the relation of principal and surety as between themselves.
(
b) If an assessment is not paid within 30 days after the due date, such assessment shall bear interest from said due date at the rate of twelve percent (12%) per annum, and the Association may bring legal action against the Member personally obligated to pay the same or foreclose its lien against such Member's Single Family Plot, Apartment Plot, or Condominium Unit, as the case may be, against which the assessment was made, in which event, interest, costs and reasonable attorney's fees shall be added to the amount of such assessments as may then be due. Each Member, by his acceptance of a deed to his Single Family Plot, Apartment Plot, or Condominium Unit, vests in the Association the right and power to bring all actions against him personally for the collection of such charges as a debt and to foreclose the aforesaid lien in any appropriate proceeding at law or in equity. The lien provided for in this Article V shall be in favor of the Association and shall be for the benefit of all other Members. The Association, acting on behalf of the Members, shall have the power to bid in the Single Family Plot, Apartment Plot, or Condominium Unit at any foreclosure sale and to acquire, hold, lease, mortgage and convey the same. No Member may waive or otherwise escape liability for the assessments provided for herein by non-use of the Association Properties and facilities or by abandonment of his Single Family Plot, Apartment Plot, or Condominium Unit.(c) If an assessment is not paid on or before the date when due, the Association may also suspend the voting rights and right to use any Association recreational facilities of the delinquent Member. Any such suspension shall not affect such Member's obligation to pay assessments 'coming due during the period of such suspension and shall not affect the permanent charge and lien on such member's Single Family Plot, Apartment Plot, or Condominium Unit in favor of the Association.
Section 9. Subordination of the Charges and Liens to Mortgages.
(a) The lien of the assessments and charges provided for herein (annual, special or otherwise) is hereby made subordinate to the lien of any first mortgage placed on the Single Family Plots, Apartment Plots, or Condominium Units subject to assessment if, but only if, all assessments and charges with respect to such Single Family Plots, Apartment Plots, or Condominium Units authorized herein having a due date on or prior to the date such mortgage is filed for record have been paid. The lien hereby subordinated is only such lien as relates to assessments and charges authorized hereunder having a due date subsequent to the date such mortgage is filed for record and prior to the satisfaction, cancellation or foreclosure of such mortgage or the sale or transfer of the mortgaged Single Family Plot, Apartment Plot, or Condominium Unit pursuant to any proceeding in lieu of foreclosure or the sale or transfer of the mortgaged Single Family Plot, Apartment Plot, or Condominium Unit pursuant to a sale under power contained in such mortgage.
(b) Such subordination is merely a subordination and shall not relieve the Owner of the mortgaged Single Family Plot, Apartment Plot, or Condominium Unit of his personal obligation to pay all
assessments and charges coming due at a time when he is the owner of such Single Family Plot, Apartment Plot, or Condominium Unit; shall not relieve such Single Family Plot, Apartment Plot, or Condominium Unit from the lien provided for herein (except to the extent a subordinated lien is extinguished as a result of subordination as against a mortgagee or such mortgagee's assignee or transferee by foreclosure or by sale or transfer in any proceeding in lieu of foreclosure or by sale under power); and no sale or transfer of such Single Family Plot, Apartment Plot, or Condominium Unit to the mortgagee or to any other person pursuant to a decreeto this Declaration shall be exempt from the assessments, charges and liens created herein: (a) all properties to the extent of any easement or
other interest therein dedicated to and accepted by a local public
authority and devoted to public use; and (b) all Association Properties; provided, however, that no land or improvement devoted to dwelling or commercial use shall be exempt from said assessments, charges and liens.
ARTICLE VI
ADMINISTRATION
Section 1. Responsibility for Administration. The administration
of the property subject to the jurisdiction of the Association, the maintenance, repair, replacement and operation of the Association
Properties and facilities and those acts required of the Association by
this Declaration shall be the responsibility of the Association. Such administration shall be governed by this Declaration and the
Association’s Articles of Incorporation and By-Laws, as amended from
time to time. The powers and duties of the Association shall be those
set forth in said documents, together with those reasonably implied to
effect its purposes, and shall be exercised in the manner provided
therein.
Section 2. Management Agreements. The Association may enter into such management agreements as may be necessary or desirable for the administration and operation of the property subject to the jurisdiction of the Association. Such management agreements shall be entered into
pursuant to resolution duly adopted by the Association's Board of
Directors, each of which shall provide therein: the compensation to be paid; the term thereof which shall not exceed one year, renewable by agreement of the parties for successive one year periods; the termination thereof by either party without cause or payment of a termination
fee on 90 days or less written notice; the termination thereof by either
party for cause on 30 days written notice; and such other matters as may be agreed upon which are not inconsistent with the terms of this Declaration or the Association's Articles of Incorporation and By-Laws, as
amended from time to time. Copies of any management agreement then currently in effect shall be made available for inspection by the
Members, each of whom shall be bound by the terms and conditions there- of. Should the Association enter into any management agreement as
provided for herein and thereafter, upon the termination or expiration
of same, assume self management of the property subject to its jurisdiction, the Association shall provide written notice thereof to each
mortgagee of a Single Family Plot, Apartment Plot, or Condominium Unit whose name and address have theretofore been furnished to the Association together with a written request for such notice.
Section 3. Limitation of Liability; Indemnification. Notwithstanding
the duty of the Association to maintain, repair and replace
parts of the Association Properties and facilities, the Association
shall not be liable for injury or damage caused by any latent condition
of the Association Properties and facilities nor for injury or damage
caused by the elements, its Members or other persons; nor shall any
officer or director of the Association be liable to any Member for
injury or damage caused by such officer or director in the performance
of his duties unless due to the willful misfeasance or malfeasance of
such officer or director. Each officer or director of the Association
shall be indemnified by the Association against all expenses and liabilities, including attorneys' fees, reasonably incurred by or imposed upon
him in connection with any proceeding to which he may be a party, or in which he may become involved, by reason of his being or having been such an officer or director, or any settlement thereof, whether or not he is
such an officer or director at the time such expenses and liabilities
are incurred, except in such cases wherein the officer or director is
adjudged guilty of willful misfeasance or malfeasance in the performance
of his duties; provided that, in the event of a settlement, the indemnification shall apply only when the Board of Directors approves such
settlement and reimbursement as being for the best interests of the Association.
ARTICLE VII
INSURANCE AND CASUALTY LOSSES
Section 1. Insurance. Unless otherwise first approved in writing
by the holders of at least three-fourths (3/4) of all first mortgages
secured by Single Family Plots, Apartment Plots, or Condominium Units, the Association's Board of Directors shall obtain insurance for all
insurable improvements on the Association Properties against loss or
damage by fire or other hazards, including extended coverage, vandalism
and malicious mischief, in an amount sufficient to cover the full,
current replacement cost, less ordinary deductible amounts, of any
repair or reconstruction in the event of damage or destruction from any
such hazard. The Board of Directors shall also obtain a public liability
policy covering all Association Properties and facilities for the
hazards of premises operations or actions arising out of bodily injury, property damage, false arrest, invasion of privacy and libel and slander
caused by the negligence of the Association or any of its agents, which
public liability policy shall be at least $500,000.00 single limit as
respects the hazards enumerated herein. Premiums for all such
insurance shall be common expenses paid for by the Association.
Section 2. Damage and Destruction. (a) Immediately after any
damage or destruction by fire or other casualty to all or any part of
the property covered by insurance written in the name of the Association,
the Board of Directors or its duly authorized agent shall
proceed with the filing and settlement of all claims arising under such insurance, obtain reliable and detailed estimates of the cost of repair
or reconstruction of the damaged or destroyed property and, if such
damage or destruction is substantial, provide written notice of same
to each mortgagee having an interest therein whose name and address have theretofore been furnished to the Association together with a written
request for such notice. Repair or reconstruction, as used in this
Article, means repairing or restoring the property to substantially the
same condition in which it existed prior to the fire or other casualty.
Subject to subsection (c) hereof, all such damage or destruction shall
be repaired or reconstructed as soon as practicable after any such
casualty shall occur. The Association's Board of Directors may advertise
for sealed bids from and may negotiate with any licensed contractors
for such repair or reconstruction and may enter into such
contract or contracts for such repair or reconstruction as it may deem necessary or advisable. The contracting party or parties may be
required to provide a full performance and payment bond for such repair
or reconstruction.
are not sufficient to defray the cost of such repair or reconstruction,
the Association's Board of Directors shall have the authority
to and shall, subject to subsection (c) hereof, levy a special assessment against all Owners in sufficient amounts to provide funds to pay
such excess cost of repair or reconstruction. Assessments for such
purpose may be made, without a vote of the Members, at any time during
or following the completion of any repair or reconstruction.
(c) In the event of damage or destruction by fire or other casualty
to all or any part of the Association Properties and facilities, such
damage or destruction shall be repaired or reconstructed unless within
60 days after such casualty an instrument requesting that the damage or destruction not be repaired or reconstructed is signed by Members of the Association entitled to cast at least eighty percent (80%) of the votes
of each class of Members and filed with the Association's Board of
Directors, in which event the damaged or destroyed area or areas shall
be cleaned up and maintained in a neat and attractive condition. If,
for any reason, 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 of repair or reconstruction is not made available to the
Association within said period of 60 days after the casualty, then such
period shall be extended until such information shall be made available
to the Association; provided, however, that said period of time shall in
no event exceed 120 days after the casualty. No mortgagee shall have
any right to participate in the determination as to whether the damage
or destruction shall be repaired or reconstructed except that insurance proceeds paid as a result of damage or destruction to all or any part of
the Association Properties and facilities shall not be used for other
than repair or reconstruction unless otherwise first approved in writing
by the holders of at least three-fourths (3/4) of all first mortgages
secured by Single Family Plots, Apartment Plots, or Condominium Units.
ARTICLE VIII
ARCHITECTURAL CONTROL
Section 1. Construction; Review and Approval. No building, outbuilding, storage shed, pool house, kennel, tree house, pen, gazebo,
fence, wall, dock, or other structure, except those provided by the
Declarant, shall be commenced, erected or maintained upon the Properties, nor shall any exterior addition to, change in or alteration of
any of said structures be made until complete final plans and specifications showing the nature, kind, shape, height, materials, basic exterior
finishes and colors, location and floor plan thereof, and showing front,
side and rear elevations thereof and the names of the builder, general contractor and all subcontractors have been submitted to and approved by
the Association's Board of Directors or by an architectural control
committee composed of three or more persons appointed by said Board as
to harmony of exterior design and general quality with the existing
standards of the neighborhood and as to location in relation to surrounding structures and topography. In the event said Board or its
designated committee fails to approve or disapprove such design and
location within 30 days after said plans and specifications shall have
been submitted to it, approval will not be required and this Section
will be deemed to have been fully complied with.
Section 2. Initial Improvements. Notwithstanding the foregoing provisions of this Article VIII, the functions of the Association's
Board of Directors or its designated committee during and with respect
to the initial improvement of the Properties and the Association Properties shall be the responsibility of the Declarant.
ARTICLE IX
EXTERIOR MAINTENANCE
Section 1. Association Properties. The responsibility for the maintenance, in a neat and attractive condition, of all Association
Properties and facilities shall be as prescribed in Article VI of this
Declaration.
Section 2. Other Properties. All Properties subject to this
Declaration, together with the exterior of all improvements located
thereon, shall be maintained in a neat and attractive condition by and
at the expense of their respective owners. Such maintenance shall
include, but shall not be limited to, painting, staining, repairing, replacing
and caring for roofs, gutters, downspouts, building surfaces, trees, shrubs, grass, walks and other exterior improvements; provided,
however, that any such painting or staining shall be compatible in
appearance and quality with t