BY-LAWS OF
COUNTRY CLUB OF GWINNETT
OWNERS ASSOCIATION, INC.
TABLE OF CONTENTS
Page
I.
GENERAL
1.
Applicability
------------------------------------------------------ 1
2. Name -------------------------------------------------------------- 1
3. Definitions -------------------------------------------------------- 1
4. Membership ------------------------------------------------------ 1
5. Entity Members -------------------------------------------------- 1
6. Voting ------------------------------------------------------------- 1
7. Majority ----------------------------------------------------------- 2
8. Purpose ----------------------------------------------------------- 2
II.
MEETINGS OF MEMBERS
1.
Annual Meetings
------------------------------------------------- 2
2. Special Meetings -------------------------------------------------------------- 2
3. Notice of Meetings ------------------------------------------------------------ 3
4. Waiver of Notice --------------------------------------------------------------- 3
5. Quorum --------------------------------------------------------------------------- 3
6. Adjournment -------------------------------------------------------------------- 3
7. Proxy ------------------------------------------------------------------------------ 3
8. Action Without a Meeting ---------------------------------------------------- 3
9. Order of Business -------------------------------------------------------------- 4
III. BOARD OF DIRECTORS
A. Compensation and Selection
1. Composition --------------------------------------------------------------------- 4
2. Directors Appointed by Declarant -------------------------------------------- 4
3. Veto ------------------------------------------------------------------------------- 4
4. Number of Directors ------------------------------------------------------------ 5
5. Nomination of Directors ------------------------------------------------------- 5
6. Election and Term of Office -------------------------------------------------- 5
7. Removal of Members of the Board of Directors -------------------------- 5
8. Vacancies ------------------------------------------------------------------------ 6
9. Compensation ------------------------------------------------------------------- 6
10. Director Conflicts of Interest -------------------------------------------------- 6
B. Meetings
1. Regular Meetings --------------------------------------------------------------- 6
2. Special Meetings ---------------------------------------------------------------- 6
3. Waiver of Notice ---------------------------------------------------------------- 6
4. Conduct of Meetings ----------------------------------------------------------- 6
Page
5. Open Meetings ----------------------------------------------------------------- 7
6. Action Without a Meeting; Conference Call Meetings ----------------- 7
C. POWERS AND DUTIES
1. Powers and Duties ------------------------------------------------------------ 7
2. Management Agent ----------------------------------------------------------- 8
3. Borrowing ---------------------------------------------------------------------- 8
4. Liability and Indemnification of Directors, Officers and
Committee Members --------------------------------------------------- 8
5. Personal Liability ------------------------------------------------------------- 9
6. Insurance ----------------------------------------------------------------------- 9
D. Committees
1. General --------------------------------------------------------------------------- 9
2. Covenants Committee ---------------------------------------------------------- 9
3. Architectural Review Committee --------------------------------------------- 9
4. Other Committees -------------------------------------------------------------- 10
5. Service on Committees -------------------------------------------------------- 10
IV. OFFICERS
1. Designation ----------------------------------------------------------------------- 10
2. Election of Officers -------------------------------------------------------------- 10
3. Removal of Officers ------------------------------------------------------------- 10
4. Vacancies ------------------------------------------------------------------------- 10
5. President -------------------------------------------------------------------------- 10
6. Vice President ------------------------------------------------------------------- 10
7. Secretary -------------------------------------------------------------------------- 10
8. Treasurer -------------------------------------------------------------------------- 10
9. Other Officers -------------------------------------------------------------------- 10
10. Agreements, Contracts, Deeds, Leases, etc. -------------------------------- 11
V. RULE MAKING AND ENFORCEMENT
1. Authority and Enforcement ---------------------------------------------------- 11
2. Fining and Suspension Procedure -------------------------------------------- 11
3. Additional Enforcement Rights ---------------------------------------------- 12
VI. MISCELLANEOUS
1. Notices ---------------------------------------------------------------------------- 12
2. Severability ---------------------------------------------------------------------- 13
3. Captions -------------------------------------------------------------------------- 13
4. Gender and Grammar ---------------------------------------------------------- 13
5. Fiscal Year ----------------------------------------------------------------------- 13
6. Financial Review --------------------------------------------------------------- 13
7. Conflicts -------------------------------------------------------------------------- 13
8. Amendment ---------------------------------------------------------------------- 13
9. Books and Records -------------------------------------------------------------- 13
ARTICLE I.
General
Section 1. Applicability. These By-Laws provide for the self-government
of Country Club of Gwinnett Owners Association ,Inc., in accordance with the
Georgia Property Owners’ Association Act (“Act”), the Articles of Incorporation
filed with the Secretary of State and the Declaration of Covenants, Conditions
and Restrictions for Country Club of Gwinnett, recorded in the Gwinnett County,
Georgia land records (“Declaration”).
Section 2. Name.
The name of the corporation is country Club of Gwinnett Owners
Association, Inc., (“Association”).
Section 3. Definitions.
The terms used herein shall have their generally accepted meanings or
such meanings as are specified in Article I of the Declaration.
Section 4. Membership.
An Owner of a Lot shall automatically become a member of the Association
upon taking title to the Lot and shall remain a member for the entire period of
ownership. As may be more fully provided
below, a spouse of a member may exercise the powers and privileges of the
member. If title to a Lot is held by
more than one (1) Person, the membership shall be shared in the same proportion
as the title, but there shall be only one (1) membership and one (1) vote per
Lot. Membership does not include Persons
who hold an interest merely as security for the performance of an obligation,
and the giving of a security interest shall not terminate the Owner’s
membership. Membership shall be
appurtenant to the Lot and shall be transferred automatically by conveyance of
that Lot and may be transferred only in connection with the transfer of title.
Section 5. Entity Members. In the event an Owner is a corporation,
partnership, trust, or other legal entity not being a natural person or person,
then any natural person who is an officer, director, or other designated agent
of such corporation, partner of such partnership, beneficiary or other
designated agent of such trust, or manager of such other legal entity shall be
eligible to represent such entity or entities in the affairs of the
Association. Such person’s relationship
with the Association shall terminate automatically upon termination of such
person’s relationship with the entity or entities which are the Owner, and
termination of such person’s relationship with the Association will create a
vacancy in any elected or appointed position within the Association in which
such person may have been serving to be filled by the Board.
Section 6. Votings.
Each Lot shall be entitled to one equally weighted vote, which vote may
be cast by the Owner, the Owner’s spouse, or by a lawful proxy as provided
below. When more than one (1) Person
owns a lot, the vote for such lot shall be exercised as they determine between
or among themselves, but in no event shall more than one (1) vote be cast with
respect to any lot. If only one (1)
co-owner attempts to cast the vote for a Lot, it shall be conclusively presumed
that such co-owner is authorized on behalf of all co-owners to cast the vote
for such Lot. I the event of
disagreement between or among co-owners and the attempt by two (2) or more of
them to cast such vote or votes, such Persons shall not be recognized and such
vote or votes shall not be counted. No
Owner shall be eligible to vote, either in person or by proxy, or to be elected
to he board, if that Owner is shown on the books or management accounts of the
Association to be more than thirty (30) days delinquent in any payment due the
Association or if the Owner has had its voting rights suspended for the
infraction of any provision of the Declaration, these By-Laws, or any rule of
the Association. If the voting rights of
an Owner have been suspended, that Owner shall not be counted as an eligible
vote for purposes of establishing a majority or a quorum or for purposes of
amending these By-Laws or the Declaration.
Due to the size of the Country Club
of Gwinnett community, it is anticipated that few substantive votes will be
conducted at meetings of the Association members and that most votes will be by
referendum with no further voting to be conducted at a meeting. Unless a vote on any question is required by
law or is required by the Declaration or
By-Laws t be taken at a meeting (in which case a meeting shall be called and
proxies shall be sent to all members entitled to vote on the issue(s) to be
decided at the meeting), elections and other matters requiring a membership
vote shall be submitted on a ballot or ballots to the members in referendum by
mail as more particularly provided in Article II, Section 8 below. Ballots shall be returned to the Secretary by
the date specified on the ballot., The
Board shall determine the method of voting, the form of all ballots, the wording
of questions thereon and the deadline for return of ballots. The board may include on any ballot questions
on which it seeks an advisory vote,.
Members may suggest questions for an advisory vote which shall be
evaluated by the Board for consistency with the exercise of its duties and responsibilities. In any advisory vote, each such question on a
ballot shall indicate that the vote is for advisory purposes only. Notice of referenda shall be given in the
same manner as notice of meetings.
Section 7. Majority.
As used in these By-Laws, the term “majority” shall mean those votes,
owners, or other group as the context may indicate totaling more than fifty
(50%) percent of the total number of eligible votes, owners, or other groups,
respectively. Unless otherwise
specifically stated, the words “majority vote” mean more than fifty (50%)
percent of those voting in person or by proxy.
Except as otherwise specifically provided in the Declaration or these
By-Laws, all decisions shall be by majority vote.
Section 8. Purpose.
The Association shall have the responsibility of administering the
Property, establishing the means and methods of collecting the contributions to
the Common expenses, arranging for the management of the Property and
performing all of the other acts that may be required to be performed by the
Association pursuant to the Act, the Georgia Nonprofit corporation Code and the
Declaration. Except as to those matters
which the Declaration, the Act or the Georgia Nonprofit Corporation Code
specifically require to be performed by the vote of the Association membership,
the administration of the foregoing responsibilities shall be performed by the
Board of Directors as more particularly set forty below.
ARTICLE II
Meetings of Members
Section 1. Annual Meetings. The regular annual meeting of the members
shall be held no earlier than thirty (30) days prior to the start of the
Association’s fiscal year and not later than sixty (60) days after the close of
the Association’s fiscal year with the date, hour, and place to be set by the
Board of Directors. Any member may attend
an annual meeting.
Section 2. Special Meetings. Special meetings of the members may be called
for any purpose at any time by the President, the Secretary, or by request of
any two (2) or more Board members, or upon written petition of twenty-five
(25%) percent o the Lot Owners. Any such
written petition by the members must be submitted to he Association’s
Secretary. The secretary shall then
verify that the required number of members have joined in the petition and
shall submit all proper petitions to the Association’s President. The President shall then promptly call a
special meeting for the purpose stated in the petition, and the Secretary shall
send notice of the meeting in accordance with these By-Laws. Any member may attend a special meeting.
Section 3. Notice of Meetings. It
shall be the duty of the Secretary to mail or deliver to each Owner of Lots of
record or to the Lots a notice of each annual or special meeting of the Association
at least twenty-one (21) days prior to each annual meeting and at least seven
(7) days prior to each special meeting.
The notice shall state the purpose of any special meeting, as well as
the time and place where it is to be held.
The notice of an annual meeting shall set the time and place of the
meeting. If any Owner wishes notice to
be given at an address other than his or her Lot, the Owner shall have
designated by notice in writing to the Secretary such other address. The mailing or delivering of a notice of
meeting in the manner provided in this Section shall be considered proper
service of notice.
Section 4. Waiver of Notice. Waiver
of noticed of a meeting of the Owners shall be deemed the equivalent of proper
notice. Any Owner may, in writing, waive
notice of any meeting of the Owners, either before or after such meeting,. Attendance at a meeting by an Owner, whether
in person or represented by proxy, shall be deemed waived by such Owner of
notice of the time, date, and place thereof unless such Owner specifically
objects to lack of proper notice at the time the meeting is called to
order. Attendance at a special meeting
shall also be deemed wavier of notice of all business transacted at such
meeting unless objection to lack of notice is raised before the business, of
which property notice was not given, is put to a vote.
Section 5. Quorum. Except
as may be provided elsewhere, the presence, in person or by proxy at the
beginning of the meeting, of Owners entitled to cast twenty-five (25%) percent
of the eligible vote of the Association shall constitute a quorum. Once a quorum is established for a meeting,
it shall conclusively be presumed to exist until the meeting is adjourned and
shall not need to be reestablished.
Owners whose voting rights have been suspended pursuant to the
Declaration or these By-Laws shall not be counted as eligible votes toward the
quorum requirement.
Section 6. Adjournment. Any
meeting of the Owners may be adjourned from time to time for periods not
exceeding ten (10) days by vote of the Owners holding the majority of the votes
represented at such meeting, regardless of whether a quorum is present. Any business which could be transacted
properly at the original session of the meeting may be transacted at a
reconvened session, and no additional notice of such reconvened session shall
be required.
Section 7. Proxy. Any member
entitled to vote may do so by written proxy duly executed by the member setting
forth the meeting at which the proxy is valid.
To be valid, a proxy must be signed, dated, and filed with the Secretary
prior to the opening of the meeting for which it is to be used. Proxies may be delivered to the Board by
personal delivery, U.S. mail or telefax transmission to any board member or the
property manager. Proxies may be revoked
only by written notice delivered to the Association, except that the presence
in person by the giver of a proxy at a meeting for which the proxy is given
shall automatically invalidate the proxy for that meeting. A prosy holder may not appoint a substitute
proxy unless expressly authorized to do so in the proxy.
Section 8. Action Without a Meeting. In
the Board’s discretion, any action that may be taken at any annual, regular, or
special meeting of members may be taken without a meeting if the board delivers
a written ballot to every member entitled to vote on the matter.
(a)
A written ballot shall: a) set forth each proposed action; and b)
provide an opportunity to vote for or against each proposed action.
(b)
Approval by written ballot
pursuant to this Section shall be valid only when the number of votes cast by
ballot equals or exceeds the quorum required to be present at a meeting
authorizing the action, and the number of
approvals equals or exceeds the number of votes that would be required
to approve the matter if such vote were conducted at a meeting.
(c)
All solicitations for votes
by written ballot shall; a) indicate the number of responses needed to meet the
quorum requirements; b) state the percentage of approvals necessary to approve
each matter other than election of directors; and c) specify the time by which
a ballot must be received by the corporation in order to be counted.
(d)
A written ballot may not be
revoked. The Association shall maintain
such ballots in its file for a period of at least three (3) years.
(e)
Notwithstanding anything to
the contrary herein, if the board uses a ballot for an advisory vote, the
provisions of this section shall not apply.
Section 9. Order of Business. At
all meetings of the Association, Roberts Rules of Order (latest edition)
shall govern when not in conflict with the Declaration, these By-Laws or the
Articles of Incorporation.
ARTICLE III
Board of Directors
A.
Composition and Selection.
Section 1. Composition. The
affairs of the Association shall be governed by a Board of Directors. Except as provided in Section 2 of this
Article, the directors shall reside in the Community and be members or spouses
of such members; provided, however, no person and his or her spouse may serve
on the Board at the same time.
Section 2. Directors Appointed by Declarant. Declarant shall have the right to appoint or remove all
members of the board of Directors and all officers of the Association until
such time as the first of the following events shall occur:
(a) the expiration of twelve (12) years after the date of the recording
of the Delcaration (February 16, 2006) or (b) the surrender by Declarant in
writing of the authority to appoint and remove directors and officers of the Association. Each owner, by acceptance of a deed to or
other conveyance of a lot, vests in
Declarant this authority to appoint and remove directors and officers of the
Association. The directors and officers
appointed by the Declarant need not be Owners or residents in Country Club of
Gwinnett. The names of the initial
directors selected by the Declarant are set forth in the Articles of
Incorporation of the Association.
Section 3. Veto. In the event
of voluntary termination of the Declarant’s right to appoint directors and
officers prior to February 16, 2006, the Declarant shall have a veto power over
all actions of the Board, as is more fully provided in this Section. This power shall expire upon the expiration
of Declarant’s option unilaterally to
subject Additional property to the Declaration, unless earlier surrendered in
writing. This veto power shall be
exercisable only by Declarant, its successors and assigns. The vet shall be as follows:
No action authorized by the Board of
Directors shall become effective, nor shall any action, policy or program be
implemented until and unless:
(a)
Declarant shall have been
given written notice of all meetings and proposed actions to be approved at
meetings by certified mail, return receipt requested, or by personal delivery
at the address it has registered with the Secretary of the Association, as it
may change from time to time, which notice shall comply with the provisions of
these By-Laws regarding notice of regular and special meetings of the directors
and which notice shall, except I the case of the regular meetings held pursuant
to the By-Laws, set forth in reasonable particularity the agenda to be followed
at the meeting; and
(b)
Declarant shall have been
given the opportunity at any such meeting to join in or to have its representatives
or agents join in discussion from the floor of any prospective action, policy
or program to be implemented by the Board of the Association. Declarant and its representatives or agents
shall make its concerns, thoughts and suggestions known in the members of the
Association and/or the Board. At any
such action, policy or program authorized by the Board of Directors and to be
taken by the Board. The veto may be
exercised by Declarant, its representatives
or agents at the meeting held pursuant to the terms and provisions
hereof. Any veto power shall not extend
to the requiring of any action or counterclaim on behalf of the Board.
Section 4. Number of Directors. The
initial Board shall consist of three (3) members. The Board may be increased by the Board or by
the Declarant by adding two (2) additional members with each increase, up to a
maximum of nine (9) members as provided in Section 6 of this Article.
Section 5. Nomination of Directors. Elected
directors shall be nominated from the floor and may also be nominated by a
Nominating Committee, if such a committee is established by the Board. All candidates shall have a reasonable
opportunity to communicate their qualifications and to solicit votes.
Section 6. Election and Term of Office.
Elected directors shall be elected by referendum. Cumulative voting is not permitted. Those candidates receiving the largest number
of votes shall be elected. In the case
of a tie vote, the winner shall be determined by the flip of a coin.
Referenda shall be held prior to the
expiration of Declarant’s right to appoint directors and officers for the
purpose of electing successors to the directors appointed by Declarant.
Prior to the first annual meeting of
the Association after the Declarant’s right to appoint directors and officers
terminates and prior to each annual meeting thereafter, directors shall be
elected by referendum; provided, however, those directors serving at the time
of the first referendum after the Declarant’s right to appoint directors
terminates shall serve the remainder of their terms. All Owners of Dwellings eligible to vote
shall have the right to vote on all directors to be elected as provided in the
Declaration.
The Declarant, in its sole
discretion, may permit Owners of Dwellings to elect a larger number of
directors earlier than is required herein.
Initially, the term of three (3)
directors shall be fixed at one (1) year.
FI and when incremental increases
in the size of the Board occur, then the term of two (2) directors shall be
fixed by Declarant at two (2) years.
When the size of the Board is increased, the initial terms of the added
directors shall be as follows: the
initial term of one (1) director shall be two (2) years, and the initial term
of one (1) director shall be three (3) years.
Whenever the Board is increased and additional directors are elected to
fill the additional positions on the board, the board shall then determine
which director is to serve a two (2) year initial term and which director shall
serve a three (3) year initial term.
Successor directors shall be elected for two (2) year terms. Directors shall hold office until their
successors shall have been elected.
Section 7. Removal of Members of the board of Directors. At any valid regular or special
Association meeting, any one or more board members may be removed with or
without cause by a Majority of the Association members and a successor may then
and there be elected to fill the vacancy created. Moreover, any director who has had three (3)
consecutive unexcused absences from regularly scheduled Board meetings or is
more than three (3) months past due in the payment of any assessment may be
removed by the vote of a Majority of the other directors. Any director whose removal has been proposed
shall be given at least ten 910) days notice of the calling of the meeting to
consider his or her removal and the purpose thereof and shall be given an
opportunity to be heard at the meeting.
Section 8. Vacancies. Vacancies
in the board caused by an reason, except the removal of a director by vote of
the membership, shall be filled by a vote of the Majority of the remaining
directors, even though less than a quorum, at any Board meeting. The successor selected shall hold office for
the remainder of the term of the director being replaced.
Section 9. Compensation. Directors
may be paid reasonable compensation from the Association for acting as such but
only if approved either by the Declarant with respect to any director appointed
by Declarant or as to any other director by a majority of the Board. Directors may be reimbursed for expenses
incurred in carrying out their duties as directors upon Board approval of such
expenses.
Section 10. Director Conflicts of Interest: Nothing herein shall prohibit a director from entering into a
contract and being compensated for services or supplies furnished to the
Association in a capacity other than as director, provided that the director’s
interest is disclosed to the Board and the contract is approved by a Majority of the directors
who are at a meeting of the board of
Directors at which a quorum is present, excluding the director with whom
the contract is made. The interested
director shall not count for purposes of establishing a quorum of the
board. The interested director shall be
entitled to be present at any meeting at which the proposed contract is
discussed and to discuss the proposed
contract, unless requested by any other director to leave the room during the
discussion.
B.
Meetings.
Section 1. Regular
Meetings. Regular Board meetings
may be held at such
time
and place as determined by the Board, but at least once every three (3)
months. The newly elected board shall
meet within ten (10) days after each annual Association meeting.
Section 2. Special Meetings. Special
Board meetings may be called by the President on three (3) days’ notice to each
director given by mail, in person, by telephone, or by facsimile transmission,
which notice shall state the time, place, and purposes of the meeting. Notices delivered by first class mail shall
be deposited into a United States mailbox at least four (4) days before the
time set for the meeting. Notices given
by personal delivery, telephone, telegraph or facsimile transmission must be
received at least forty-eight (48) hours before the time set for the meeting. Special board meetings shall be called by
the President, Vice President, secretary
or Treasurer in like manner and on like notice on the written request of at
least two (2) directors.
Section 3. Waiver of Notice. Any
director may, at any time, in writing, waive notice f any board meeting, and
such wavier shall be deemed equivalent to the giving of such notice. Attendance by a director at any Board meeting
shall also constitute a waiver of notice
by him or her of the time and place of such
meeting. If all directors are
present at any Board meeting, no notice shall be required and any business may be transacted
at such meeting.
Section 4. Conduct of Meetings. The
President shall preside over all Board meetings, and the Secretary shall keep a
minute book recording therein all resolutions adopted by the Board and a record
of all transactions and proceedings occurring at such meetings. The presence of directors entitled to cast
one-half of the votes of the Board shall constitute a quorum for the transaction
of business. One or more directors who
participate in a meeting by means of telephone or electronic communication
shall be deemed present and in attendance for all purposes at such meeting,
provided all persons participating in the meeting can hear each other.
Section 5. Open Meetings. All Board meetings shall be open to all members, but members
other than directors may not participate in any discussion or deliberation
unless expressly so authorized by the Board.
Notwithstanding the above, the Board may adjourn a meeting and reconvene
in executive session to discuss and vote upon personnel matters, litigation in
which the Association is or may become involved, and orders of business of a
similar nature. The nature of any and
all business to be considered in executive session shall first be announced in
open session.
Section 6. Action without a Meeting; Conference Call Meetings. Any Board action required or permitted to be
taken at any meeting may be taken without a
meeting if a Majority of the directors consent in writing to such
action. The written consent must
describe the action taken and be signed by all the directors. The written consents shall be filed with the
minutes of the Board. A member or
members of the Board may participate in a meeting of the Board by means of
conference telephone or similar communications equipment, by means of which all
persons participating in the meeting can hear each other. Such
participation shall constitute presence in person at such meeting.
C.
Powers and Duties:
Section 1. Powers and Duties. The
board of Directors shall manage the affairs of the Association and shall have
all the powers and duties necessary for the administration of the Property and
may do all such acts and things as are not
by the Act, the Declaration, the Articles of Incorporation, or these
By-Laws directed to be done and exercised exclusively by the members. In addition to the duties imposed by these By-Laws or by any
resolution of the Association that may hereafter be adopted, the Board of
Directors shall have the power to and shall be responsible for the following, I
way of explanation, but not limitation:
(a)
preparation and adoption of
an annual budget, in which there shall be established the contributions of each
Owner to the Common Expenses;
(b)
making assessments to defray
the Common Expenses, establishing the means and methods of collection such
assessments, and establishing the period of the installment payments of the
annual assessments;
(c)
providing for the operation,
care, upkeep, and maintenance of all of the
areas which are maintenance responsibility of the Association pursuant
to Article v of the Declaration;
(d)
designating, hiring, and
dismissing the personnel necessary for the operation of the Association and the
maintenance, repair, and replacement of the Common Areas, Association property,
and other areas of Association Maintenance responsibility and, where
appropriate, providing for the compensation of such personnel and for the
purchase of equipment, supplies, and material to be used by such personnel in
the performance of their duties;
(e)
collecting the assessments,
depositing the proceeds thereof in a financial depository or institution which
it shall approve, or otherwise investing the proceeds in accordance with any limitations
set forth in O.C.G.A. Section 14-3-302, and using the proceeds to administer
the Association;
(f)
making and amending rules
and regulations and imposing sanctions for violation thereof, including
reasonable monetary fines;
(g)
opening of bank or other
financial accounts on behalf of the Association and designating the signatories
required;
(h)
making or contracting for
the making of repairs, additions, and improvements to, or alterations of the
Common Areas in accordance with the other provisions of the Declaration and
these By-Laws, after damage or destruction by fire of other casualty;
(i)
enforcing by legal means the
provisions of the Declaration, these By-Laws, and the rules and regulations
adopted by it, and brining any proceedings which may be instituted on behalf of
or against the Owners concerning the Association;
(j)
obtaining and carrying
insurance against casualties and liabilities, as provided in the Act and the Declaration,
and paying the premium cost thereof;
(k)
paying the costs of all
services rendered to the Association or its members and not directly chargeable
to specific Owners;
(l)
keeping books with detailed
accounts of the receipts and expenditures affecting the Association and its
administration, specifying the maintenance and repair expenses and any other expenses
incurred; and
(m)
contracting
with any Person for the performance of various duties and functions. The Board shall have the power to enter into
common management agreements with trusts, condominium associations, or other
associations or corporations. Any and
all functions of the Association shall be fully transferable by the Board, in
whole or in part, to any other entity.
Section 2. Management Agent. The
Association may, but shall not be required to, hire a professional management
agent or agents, at a compensation established by the Board, to perform such
duties and services as the Board of Directors shall authorize. The Declarant or an affiliate of Declarant
may be appointed as managing agent or manager.
The Board shall use reasonable efforts in any management contract to
provide for termination of such contract with or without cause and without
penalty, upon no more than thirty (30) days written notice, and for a term not
in excess of one (1) year.
Section 3. Borrowing. The Board
of Directors shall have the power to borrow money for the purpose of
maintenance, repair, restoration or improvement of the Common Areas and facilities
without the approval of the members of the Association; the board shall also be
authorized to borrow money for other purposes; provided, however, the Board
shall obtain the approval of the Declarant as required by Section 8.02 of the
Declarations, if applicable, and shall obtain membership approval in the same
manner as provided in the Declaration for special assessments if the proposed
borrowing is for the purpose of modifying, improving, or adding amenities to
the Property and the total amount of such borrowing exceeds or would exceed
fifty thousand ($50,000.00) dollars outstanding debt at any one time.
Section 4. Liability and Indemnification of Directors, Officers and
Committee Members. The Association
shall indemnify every officer, director and committee member against any and
all expenses, including attorney’s fees, reasonably incurred by or imposed upon
such officer, director or committee member in connection with any action, suit,
or other proceeding (including settlement of any such action, suit, or
proceeding, if approved by the then Board of Directors) to which he or she may
be made a party by reason of being or having been an officer, director or
committee member, whether or not such person is an officer, director or
committee member at the time such expenses are incurred. The officers, directors and committee members
shall not be liable for any mistake of judgment, negligence or otherwise, or
for injury or damage caused by any such officer, director or committee member
in the performance of his or her duties, except for his or her own individual
willful misfeasance or malfeasance. The
officers, directors and committee members shall have no personal liability with
respect of any contract or other commitment made by them, in good faith, on
behalf of the Association (except to the extent that such officers, directors,
or committee members may also be members of the Association) and the
Association shall indemnify and forever hold each such officer, director and
committee member free and harmless against any and all liability to others on
account of any such contract or commitment.
Any right to indemnification provided for herein shall not be exclusive
of any other rights to which any officer, director or committee member, or
former officer, director or committee member, may be entitled. The Association shall, as a Common Expense,
maintain adequate general liability and if obtainable, officers’ and directors’
liability insurance to fund this obligation, and the insurance shall be written
as provided in the Declaration.
Section 5. Personal Liability. No
member, director, officer, committee member or representative of the
Association shall be held personally liable for debts or liabilities of the
Association. The directors and officers
of the Association shall not be liable for any mistake of judgment, whether
negligent or otherwise, except for their own individual willful misfeasance or
malfeasance, willful misconduct or bad faith.
Such directors and officer shall have no personal liability with respect
to any contract or other commitment made by them, in good faith, on behalf of
the Association (except to the extent that such directors or officers may also
be members of the Association), and the Association,
as a Common Expense of the Association, shall indemnify such directors and
officers free and harmless from any and all expense, loss or liability to
others on account of any such contract or commitment.
Section 6. Insurance. The
Association, acting through the Board, shall have the right to purchase, carry
and maintain in force (a) insurance covering any and all portions of the Common
Areas and any improvements thereon or appurtenance thereto, for the interest of
the Associations, the Board, agents and employees, and of all members, in such
coverage, amounts, and with such endorsements as shall be considered by the
Board, in its sole discretion, to be
necessary and reasonable; (b) fidelity bonds for all board members, officers
or agents of the Association having control over the receipt and disbursement
of funds; and © insurance commonly referred to as “errors and omissions”
insurance covering the officers, members of the Board of Directors and members
of the ARC, or other Board committees, in connection with their duties in such
capacities. The Association shall use
any net insurance proceeds for the purpose the insurance was intended,
including the repair and/or replacement of any damaged or lost property,
whether real or personal. Any unused
balance from the proceeds of insurance paid to the Association shall be
retained by the Association and deposited in its reserve fund as provided for
in the Declaration. Should insurance
proceeds be insufficient to fully reimburse any loss or damage, the Association
may levy a Special Assessment or Individual Assessment, whichever is applicable,
to cover such deficiency.
D.
Committees.
Section 1. General. In addition to the committees established in the
Declaration, committees to perform such tasks and to serve for such periods as
may be designated by the board are hereby authorized. Each committee shall be composed and shall
operate in accordance with the terms of the resolution of the Board designating the committee or with the
rules adopted by the Board. If
available, the Board shall obtain liability insurance covering the members of
each committee and the Association for the activities of such committees.
Section 2. Covenants Committee. The Board may establish a Covenants Committee
to advise the Board regarding violations of the Declaration, By-Laws, rules and
regulations, use restrictions and Design Standards. This Committee shall also advise the Board
regarding sanctions to be imposed for such violations.
Section 3. Architectural Review Committee. The Board may establish an
Architectural Review Committee (the “ARC”) for the purpose of establishing and
maintaining architectural standards in the property as provided in the
Declaration.
Section 4. Other Committees. There shall be such other committees as the
Board shall determine with the powers and duties that the Board shall
authorize.
Section 5. Service on Committees. Unless otherwise provided in these
By-Laws or in the resolution authorizing a particular committee, the members of
any committee shall be appointed by the President and shall serve at the
pleasure of the Board of Directors. Any
committee member may be removed with or without cause at any time and with or
without a successor being named.
ARTICLE IV
Officers
Section 1. Designation. The
principal officers of the Association shall be the President, Vice President,
the Secretary, and the Treasurer. The
President, Vice President and Secretary shall be elected by and from the Board
of Directors. The Treasurer shall be
elected by the Board, but need not be a Board member. The Board may appoint one or more Assistant
Treasurers, Assistant Secretaries, and such other subordinate officers as in
its judgment may be necessary. Any
assistant or subordinate officers shall not be required to be Board
members. Except for the offices of
secretary and Treasurer, which may be held by the same person, no person may
hold more than one (1) office.
Section 2. Electing of Officers. The
Association officers shall be elected annually by the Board at the first meeting
of the Board following each annual meeting of the members and shall hold office
at the pleasure of the Board and until a successor is elected.
Section 3. Removal of Officers. Upon
the affirmative vote of a majority of the Board members, any officer may be
removed, either with or without cause and a successor may be elected.
Section 4. Vacancies. A
vacancy in any office arising because of death, resignation, removal or
otherwise may be filled by the Board for the unexpired portion of the term.
Section 5. President. The
President shall be the chief executive officer of the Association and shall
preside at all Association and Board meetings.
The President shall have all the general powers and duties which are
incident to the office of the president of a corporation organized under the
Georgia Nonprofit Corporation Code, including, but not limited to, the power to
appoint committees from among the members from time to time as he or she may in
his or her discretion decide is appropriate to assist in the conduct of the
affairs of the Asso[MI1]ciation.
Section 6. Vice
President. The Vice President shall act in
the President’s absence and shall have all powers, duties, and responsibilities
provided for the President when so acting.
Section 7. Secretary. The
Secretary shall keep the minutes of all Association and Board meetings and
shall have charge of such books and papers as the board may direct, and shall,
in general, perform all duties incident to the office of the Secretary of a
corporation organized under Georgia law.
Section 8. Treasurer. The
Treasurer shall have the responsibility for the Association’s funds and securities
and shall be responsible for keeping full and accurate financial records, and
books of account showing all receipts and disbursements, for preparing all
required financial statements and tax returns, and for the deposit of all monies
and other valuable effects in the name of the Association or the managing agent
in such depositories as may from time to time be designated by the Board. The Treasurer shall be responsible for the
preparation of the budget as provided in the Declaration. The Treasurer may delegate all or a part of
the preparation and notification duties associated with the above
responsibilities to a management agent.
Section 9. Other Officers. Other
offices may be created by the Board, and the Board members which hold such
offices shall have such titles and duties as are defined by the Board.
Section 10. Agreements, Contracts, Deeds, Leases, etc. All agreements, contracts, deeds, leases,
checks, promissory notes, and other instruments of the Association shall be
executed by at least tow (2) officers or by such other person or persons as may
be designated by Board resolution.
ARTICLE V.
Rule Making and Enforcement
Section 1. Authority and Enforcement. The
Property shall be used only for those uses and purposes set out in the
Declaration. The board of Directors
shall have the authority to make, modify, repeal and enforce reasonable rules
and regulations governing the conduct, use, and enjoyment of lots and the
Common Areas; provided, copies of all such rules and regulations shall be
furnished to all Owners and Occupants.
Any rule or regulation may be repealed by the affirmative vote or
written consent of a Majority of the total Association vote at an annual or
special meeting of the membership.
Every Owner and Occupant shall
comply with the Declaration, By-Laws and rules and regulations of the
Association, and any lack of compliance shall entitle the Association and, in
an appropriate case, one or more aggrieved Lot Owners, to take action to
enforce the terms of the Declaration, By-Laws or rules and regulations.
The Board shall have the power to impose
reasonable fines, which shall constitute a lien upon the Owner’s Lot, and to
suspend an Owner’s right to vote or to use the Common Areas for the violation
of any duty imposed under the Declaration, these By-Laws, or any rules and regulations
duly adopted hereunder; provided, however, nothing herein shall authorize the
Association or the board of Directors to limit ingress and egress to or from a
Lot. In the event that any Occupant of a
Lot violates the Declaration, By-Laws, or a rule or regulation and a fine is
imposed, notice of such violation shall be sent to the Owner and the Occupant, and the fine may first assessed
against such Occupant; provided, however, if the fine is not paid by the
Occupant within the time period set by the Board, the Lot Owner shall pay the
fine upon notice from the Association, and the fine shall be an assessment and
a lien against the Lot until paid. The
failure of the Board to enforce any provision of the Declaration, By-Laws, or
any rule or regulation shall not be deemed a waiver of the right of the Board
to do so thereafter.
Section 2. Fining and Suspension Procedure. The Board shall not impose a fine or suspend the right to
vote or to use the Common Areas (unless an Owner is shown on the books or
management accounts of the Association to be more than thirty (30) days
delinquent in any payment due the Association, in which case such suspensions
shall be automatic; unless and until notice of the violation is given as
provided in subsection 2(a) below. Any
such fine or fines may be effective or commence upon the sending o such notice
or such later date as may be set forth in such notice, notwithstanding the
violator’s right to request a hearing before the Board to challenge such fine
under subsection 2(b) below.
(a)
Notice. If any provision of the Declaration or By-Laws
or any rule or regulation of the Association is violated, the board shall serve
the violator with written notice sent certified mail, return receipt requested,
which shall state: 1) the nature of the alleged violation; 2) the proposed
sanction to be imposed; 3) a statement that the violator may challenge the fact
of the occurrence of a violation, the proposed sanction, or both, by written
challenge and written request for a hearing before the Board, which request
must be received by the Board within ten 910) days of the date of the notice;
4) the name, address, and telephone number of a person to contact to challenge
the proposed action. If a timely
challenge is made and the violation is cured within ten (10) days of the date
of the notice, the Board, in its discretion, may, but is not obligated to,
waive any sanction or portion thereof.
In the event of a continuing violation, each day the violation continues
or occurs again constitutes a separate offense, the fines may be imposed on a
per diem basis without further notice to the violator.
(b)
Hearing. If the alleged violator timely challenges
the proposed action, a hearing before the Board shall be held in executive
session affording the violator a reasonable opportunity to be heard. The hearing shall be set at a reasonable time
and date by the board, and notice of the time, date (which shall be not less
than ten (10) days from the giving of notice without the consent of the
violator), and place of the hearing and an invitation to attend the hearing and
produce any statements, evidence, and witnesses shall be sent to the alleged violator. Proof of such notice shall be placed in the
minutes of the meeting. Such proof shall be deemed adequate of a copy
of the notice, together with a statement of the date and manner of delivery, is
entered by the officer or director who delivered such notice. The notice requirement shall be deemed
satisfied if the violator appears at the meeting. The minutes of the meeting shall contain a
written statement of the results of the hearing and the sanction, if any,
imposed. This Section shall be deemed
complied with if a hearing is held and the violator attends and is provided an
opportunity to be heard, notwithstanding the fact that the notice requirement s
contained herein are not technically followed.
Section 3. Additional Enforcement Rights. Notwithstanding anything to the contrary herein contained, the
Association, acting through its board of Directors, may elect to enforce any
provision of the Declaration, the By-Laws, or the rules and regulations by
self-help (specifically including, but not
limited to, the towing of vehicles that are in violation of parking
rules and regulations) or by suit at law or in equity to enjoin any violation
or to recover monetary damages or both without the necessity for compliance
with the procedure set forth in Section 2 of this Article. In any such action, to the maximum extent
permissible, the Owner or Occupant responsible for the violation for which
abatement is sought shall pay all costs, including reasonable attorney’s fees
actually incurred.
The Association or its duly
authorized agent shall have the power to enter a Lot or upon any portion of the
Common Areas to abate or remove, using such force as may be reasonably
necessary, any structure, thing or condition which violates the Declaration,
the By-Laws, or the rules and regulations.
All costs of self-help, including reasonable attorney’s fees, shall be
assessed against the violating Lot Owner and shall be collected as provided
herein for the collection of assessments.
ARTICLE VI
Miscellaneous
Section 1. Notices. Unless
otherwise provided in these By-Laws, all notices, demands, bills, statements or
other communications under these by-laws shall be in writing and shall be
deemed to have duly given if delivered personally or if sent by United States mail,
first class postage pre-paid:
(a)
if to a Lot Owner, at the
address which the Lot Owner has designated in writing and filed with the
Secretary, or if no such address has been designated, at the address of the Lot
of such Owner;
(b)
if to an Occupant, at the
address of the Lot occupied; or
(c)
if to the Association, the
board or the managing agent, at the principal office of the Association or the
managing agent, if any, or at such other address as shall be designated in
writing and filed with the Secretary.
Section 2. Severability. The
invalidity of any part of these By-Laws shall not impair or affect in any
manner the validity, enforceability, or effect of the balance of these By-Laws
or the Declaration.
Section 3. Captions. The
captions herein are inserted only as a matter of convenience and for reference
and in no way define, limit, or describe the scope of these By-Laws or the
intent of any provision thereof.
Section 4. Gender and Grammar. The
use of the masculine gender in these By-Laws shall be deemed to include the
feminine gender, and the use of the singular shall be deemed to include the
plural whenever the contest so requires.
Section 5. Fiscal Year. The
fiscal year of the Association initially shall commence on April 1 of each
calendar year and continue to March 31 of the following calendar year. The fiscal year may be changed at any time by
resolution of the Board of Directors.
Section 6. Financial Review. A
financial review of the accounts of the Association shall be performed annually
in the manner provided by the Board.
However, after having received the Board’s financial review at the
annual meeting, the Owners may, by a Majority of the Association vote, require
that the accounts of the Association be audited as a Common Expense by an
independent accountant.
Section 7. Conflicts. The
duties and powers of the Association shall be those set forth in the Act, the Georgia
Nonprofit Corporation Code, the Declaration, these by-laws, and the Articles of
Incorporation, together with those reasonably implied to affect the purposes of
the Association; provided, however, that if there are conflict or
inconsistencies between the Act, the Georgia Nonprofit Corporation Code, the
Declaration, these By-Laws or the Articles of Incorporation, then the provisions
of the Act, the Georgia Nonprofit Corporation Code, as may be applicable, the
Declaration, the Articles of
Incorporation and these By-Laws, in that order, shall prevail, and each
Owner of a Lot, by acceptance of a deed or other conveyance therefor, covenants
to vote in favor of such amendments as will remove such conflicts or
inconsistencies.
Section 8. Amendments. These
By-Laws shall be altered, amended or repealed by action of the Board of
Directors at any regular or special meeting provided that no amendment shall be
effective to impair or dilute any rights of members granted in or governed by
the Declaration.
Any action to challenge the validity
of an amendment adopted under this Section must be brought within one (1) year
of the amendment’s effective date. No
action to challenge any such amendment may be brought after such time.
Section 9. Books and Records.
(a)
All members of the
Association and any institutional holder of a first Mortgage shall be entitled
to inspect the following records at a reasonable time and location specified by
the Association, upon written request at least five (5) days before the date on
which the member wishes to inspect and copy:
1)
its current Articles of Incorporation
and amendments thereto;
2)
its current By-Laws and
amendments thereto;
3)
resolutions adopted by
either its members of Board of Directors increasing or decreasing the number of
directors or the classification of directors, or relating to the
characteristics, qualifications, rights, limitations, and obligations of
members or any class or category of members;
4)
resolutions adopted by
either its members or Board of Directors relating to the characteristics,
qualifications, rights, limitations, and obligations of members or any class or
category of members;
5)
the minute of all meetings
or members and records of all actions approved by the members for the past
three (3) years;
6)
all written communications
to members generally within the past three (3) years, including the financial statements
furnished for the past three (3) years; and
7)
its most recent annual
report delivered to the Secretary of State.
(b)
A member may inspect and
copy the following records upon written notice at least five (5) business days
before the date on which the member wishes to inspect and copy only if the
member’s demand is made in good faith and for a proper purpose that is
reasonably relevant to the member’s legitimate interest as a member; the member
describes with reasonable particularity the purpose and the records the member
desires to inspect; the records are directly connected with this purpose; and
the records are to be used only for the stated purpose:
1)
excerpts from minutes of any
Board meeting, records of any action of a committee of the board while actin in
place of the board on behalf of the Association, minutes of any meeting of the
members, and records of action taken by
the members or the board without a meeting, to the extent not subject to
inspection under subsection 9(a);
2)
accounting records of the
Association; and
3)
the membership list only if
for a purpose related to the member’s interest as a member. Without the consent of the Board, a
membership list or any part ther3eof may not be: used to solicit money or
property unless such money or property will be sued solely to solicit the votes
of the members in an election to be held by the Association; used for any
commercial purpose; or sold to or purchased by any person.
The Association may impose a
reasonable charge, covering the cost of labor and material, for copies of any
documents provided to the member.