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FIRST AMENDMENT TO THE DECLARATION OF PROTECTIVE COVENANTS
AND
MANDATORY MEMBERSHIP FOR TUXFORD

WHEREAS, lot owners in the Tuxford Subdivision in Fulton County, Georgia, recorded the Declaration of Protective Covenants and Mandatory Membership for Tuxford (“Declaration”) on December 7, 1999 in Deed Book 28124, Page 1 in the Fulton County, Georgia land records; and

WHEREAS, Paragraph 13 of the Declaration provides that the Declaration may be amended with the affirmative vote, written consent, or any combination thereof, of the Mandatory Members holding at least two-thirds (2/3) of the total eligible vote of the Tuxford Homeowners Association, Inc. (“Association”); and

WHEREAS, Mandatory Members holding at least two-thirds (2/3) of the total eligible vote of the Association desire to amend the Declaration and have approved this Amendment;

NOW, THEREFORE, the Declaration is hereby amended as follows:

Paragraph 5(c)(ii) of the Declaration shall be amended by adding the following to the end thereto:

Although authorized by the Act, the Association will not seek foreclosure of its lien for assessments against Member Lots.

Paragraph 10 of the Declaration is hereby amended by adding thereto the following subsections (c) through (l):

  1. Residential Use.  Each Mandatory Member Lot shall be used for residential purposes only, and no trade or business of any kind may be conducted in or from a Mandatory Member Lot or any portion of the Tuxford Subdivision, except that the Member or occupant residing in a dwelling on a Mandatory Member Lot may conduct ancillary business activities within the dwelling so long as:

    1. the existence or operation of the business activity is not apparent or detectable by sight, sound, or smell from outside of the dwelling;

    2. the business activity does not involve visitation or deliveries to the Lot by employees, clients, customers, suppliers, couriers, mail carriers, or other business invitees in
      the business activity does not involve use of the Common Property, except for necessary access to and from the Lot by permitted business invitees;

    3. the business activity is legal and conforms to all zoning requirements for the Tuxford Subdivision;

    4. the business activity does not increase any insurance premium paid by the Association or otherwise negatively affect the Association's ability to obtain insurance coverage; and

    5. the business activity is consistent with the residential character of the Tuxford Subdivision and does not constitute a nuisance or a hazardous or offensive use, or threaten the security or safety of other Members or occupants, as determined in Board of Director’s discretion.


      The Association has no liability for any business activity in the Tuxford Subdivision. The Association also has no liability for any action or omission by it, its Directors, Officers, agents, representatives and/or vendors, that may adversely impact a Member’s or occupant’s business activity. Each Member and occupant hereby releases and holds harmless the Association, its Directors, Officers, agents, representatives and/or vendors, for any interruption or suspension of, or any damages to, any business activities conducted on a Mandatory Member Lot. Members and occupants shall obtain whatever supplemental insurance may be necessary to protect their business assets, business continuity and business interests on their Lots. The Association is not obligated to obtain any insurance coverage for any Member’s or occupant’s business activity.


      The term "business," as used in this provision, shall include, without limitation, any occupation, work or activity that involves the provision of goods or services to persons other than the provider's family for a fee, compensation, or other form of consideration, regardless of whether: (i) such activity is engaged in full or part-time; (ii) such activity is intended to or does generate a profit; or (iii) a license is required therefore.

  2. Pets.  No Member or occupant may keep any animals other than a reasonable number of generally recognized household pets in the Tuxford Subdivision, as determined by the Fulton County and City of Alpharetta Ordinances. No Member or occupant may keep, breed or maintain any pet for any commercial purpose in the Tuxford Subdivision. Pets may not be left unattended outdoors, with the exception of cats. Dogs must be kept on a leash and be under the physical control of a responsible person at all times while outdoors in areas that are not fully enclosed by a fence. Feces left by pets on the Common Property or on any Lot must be removed promptly by the Lot Owner of the pet or the person responsible for the pet.


    Any Member or occupant who keeps or maintains any pet in the Tuxford Subdivision agrees to indemnify and hereby holds harmless the Association, its Directors, Officers, and agents, from any loss, damage, claim or liability of any kind or character whatsoever related to such pet. The Board may establish additional rules regarding pets in the Tuxford Subdivision, and publish them in the Community Wide Standards.

  3. Parking. Vehicles only may be parked in garages, driveways on Lots, designated parking spaces, or other areas authorized in writing by the Board. Vehicles may not be parked on any grass or landscaped areas on Lots.


    Disabled and stored vehicles are prohibited from being parked in the Tuxford Subdivision, except in garages. For purposes of this subparagraph, a vehicle shall be considered "disabled" if it does not have a current license tag or is obviously inoperable. A vehicle shall be considered "stored" if it remains in the Tuxford Subdivision, other than in a garage, for 10 consecutive days or longer without prior written consent of the Board.


    Boats, jet-skis, trailers, buses, taxis, hearses, limousines, recreational vehicles, motor homes, campers, panel trucks, trucks with a cargo-load capacity of one ton or more, full-size vans (excluding vans used by handicapped persons, mini-vans, pick-up trucks or sport utility vehicles used as passenger vehicles and receiving a “car” or “passenger vehicle” classification by the Georgia Department of Motor Vehicles), are prohibited from being parked on the Common Property of the Tuxford Subdivision, unless preapproved by the Board in writing. Recreational vehicles are as follows: (1) Resident-owned recreational vehicles, such as motor homes, travel trailers, campers, boats, and boat trailers, may be parked in a residential driveway on a temporary basis for no more than 10 days for the purpose of repair, maintenance or preparation for use. Recreational vehicles must be stored in garages or storage structures if the parking duration exceeds 10 days and (2) A recreational vehicle owned by a guest of the resident may be parked temporarily (not to exceed 10 days) in the resident’s driveway. In no case can that vehicle be used for overnight sleeping accommodations.


    If any vehicle is parked on Common Property in the Tuxford Subdivision in violation of this Paragraph or the Association's rules, the Board or agent of the Association may tow or boot the vehicle after 24 hours written notice. Such notice shall: (1) be placed on the vehicle; (2) specify the nature of the violation; (3) warn of possible towing or booting; and (4) state the name and telephone number of a person to contact regarding the violation. If 24 hours after such notice is placed on the vehicle the violation continues or thereafter occurs again within six months of such notice, the Board or agent of the Association may have the vehicle towed or booted in accordance with the original notice and without further notice. If a vehicle is parked in a fire lane, is blocking another vehicle or access to another Member’s or occupant's Lot or dwelling, is obstructing the flow of traffic, or otherwise creates a hazardous condition, no notice shall be required and the vehicle may be towed or booted immediately.


    The Association has no liability for any towing or booting in accordance with this subparagraph. Each Member and occupant hereby releases and holds harmless the Association, its Directors, Officers, agents and representatives, for any claim or damage from any such towing or booting. The Association's right to tow or boot is in addition to, and not in limitation of all other rights of the Association, including the right to assess fines.

  4. Signs.  Except as may be provided for herein or as may be required by legal proceedings or any governmental construction permitting process, no signs, advertising posters, political placards or billboards of any kind shall be erected, placed, or permitted to remain in the Tuxford Subdivision without the prior written consent of the Board of Directors, other than: (1) three professional security signs displayed on a Lot; (2) one professionally lettered "For Sale" sign displayed on a Lot being offered for sale; and (3) three professionally lettered political candidate endorsement placards displayed on a Lot from 30 days before an election to five days after such election. The Board may establish rules permitting temporary signs on Mandatory Member Lots announcing open houses, births, birthdays or other events for limited periods of time. The Board shall have the right to erect signs on the Common Property.

  5. Rubbish and Trash.  Members and occupants shall regularly remove all rubbish and trash from their Lot. No rubbish or trash shall be placed on the Common Property. All garbage cans, wood piles, compost piles and related equipment and other similar items shall be located or screened so as to be concealed from view from the streets in front of each Lot or be located beyond the rear of the house. All rubbish, trash, yard waste (excluding compost) and garbage shall be regularly removed from each Lot and shall not be allowed to accumulate thereon. Trash, garbage or other rubbish shall be kept in sanitary containers with covers or lids. Trash cans/yard waste may not be placed at the curb earlier than the day before designated pick up and must be removed by 10 PM on the date of collection.

  6. Unsightly or Unkempt Conditions. It shall be the responsibility of each Owner to prevent any unclean, unhealthy, unsightly or unkempt condition from existing outside of his/her dwelling on the Lot. Any item such as outside patio furniture or other articles that can be viewed from the streets within Tuxford Subdivision, Common Property, or other Lots shall be maintained in a neat and attractive condition. Clothing, bedding, rugs, mops, appliances, indoor furniture, and other household items shall not be placed or stored outside the dwelling as viewed from the street, except for garage sales or when scheduling a pick-up for disposal. All lawn & garden equipment, portable recreation equipment, canoes, ladders, tires, paint cans, wood piles, etc. must be stored in a manner that conceals them from the street.

  7. Impairment of Easements.  No Member or occupant shall impair any easement existing in the Tuxford Subdivision, or do any act or allow any condition to exist which will adversely affect the other Lots or their owners or occupants.

  8. Sight Distance at Intersections.  All property located at street intersections shall be landscaped and kept so as to permit safe sight across the street corners. No vehicle, fence, wall, hedge, shrub, tree or other landscaping shall be placed or permitted to remain where it would create a traffic or sight problem.

  9. Mailboxes. Only one mailbox structure may be located on each Mandatory Member Lot. Each Member shall replace or restore any destroyed or damaged mailbox on his or her Lot consistent with the Community Wide Standard and design of the dwelling on the Lot.

  10. Rental Property.  All leases shall be in writing and within 10 days after executing a lease for his or her Lot, the Member shall provide the Board with: (1) a copy of the proposed lease; (2) the names, phone numbers, work locations and work phone numbers of all of the proposed Occupants of the Lot; (3) the Member’s primary residence address and phone number, work location and work phone number; and (4) such other information required by the Board. Within 10 days after executing a lease for a Lot, the Member shall provide the Board with a copy of the executed lease. Every Member entering a lease for his or her Lot shall ensure that all terms defined in the Declaration of Protective Covenants and Mandatory Membership for Tuxford are incorporated into such lease. The Member and each Occupant shall comply with all provisions of the Association Legal Documents. The Member and Occupants are responsible for their own violations or violations by any guests of the Lot and may be sanctioned for any such violation.

Paragraph 15 of the Declaration is hereby amended by adding thereto the following subsections (a), (b) and (c):

  1. Member’s Maintenance Responsibility.  Each Member shall maintain and keep his or her Lot and dwelling in good repair, condition and order. This maintenance obligation shall include, but not be limited to, roofs, gutters, downspouts, exterior building surfaces, foundations and foundation walls, windows, doors, trees, shrubs, grass, walks, walls and other improvements on the Member’s Lot. In addition, each Member shall maintain any public right-of-way located between the Member's Lot and the curb of the street(s) bordering such Lot. Such maintenance shall be performed consistent with this Declaration and the Community-Wide Standard established pursuant hereto. Each Member shall perform his or her responsibility hereunder in such manner so as not to unreasonably disturb other Lot Members.


    Subject to the maintenance responsibilities herein provided, any maintenance or repair performed on or to the Common Property by a Member which is the responsibility of the Association hereunder (including, but not limited to landscaping of Common Property) shall be performed at the sole expense of such Member, and the Member shall not be entitled to reimbursement from the Association even if the Association accepts the maintenance or repair.

  2. Failure to Maintain.  If the Board of Directors or designated agent determines that any Member has failed or refused to discharge properly his or her maintenance, repair or replacement obligations pursuant to this Paragraph, then the Association shall give the Member written notice of: (1) the Member's failure or refusal; (2) the Association's right to provide necessary maintenance, repair, or replacement at the Member's sole cost and expense; and (3) the maintenance, repair, or replacement deemed necessary by the Board.


    Unless the Board or designated agent determines that an emergency exists or a violation is re-occurring for which notice previously has been issued hereunder, the Member shall have 21 days within which to complete maintenance or repair, or if the maintenance or repair is not capable of completion within such time period, to commence replacement or repair within 21 days. If the Board determines that an emergency exists, a violation is re-occurring for which notice has been previously issued hereunder or a Member has not complied with the demand given by the Association hereunder, the Association may provide any such maintenance, repair or replacement, the costs of which shall be a specific assessment against the Member and the Lot.

  3. Maintenance Standards and Interpretation.  The phrase “Community-Wide Standard” shall mean the standard of conduct, maintenance, or other activity generally prevailing in the Tuxford Subdivision as established, interpreted and enforced by the Board of Directors. These standards may vary over time, however, the variances shall not constitute a waiver by the Board of the right to establish and enforce standards under this Paragraph. No Board decision or interpretation regarding standards shall constitute a binding precedent with respect to subsequent Board decisions or interpretations. An initial set of published Community-Wide Standards shall be established at the time of this amendment passage by the Board. Subsequent modifications to these Community-Wide Standards will require approval of a majority of Members voting at a duly called meeting with a quorum established.


The Declaration is hereby amended by adding to the end thereto the following Paragraph 18:

18. AUTHORITY AND ENFORCEMENT.

  1. Compliance with Association Legal Documents.  All Members and their family members, occupants and guests shall comply with the “Association Legal Documents,” which shall include this Declaration and all exhibits hereto, the Bylaws, the Articles of Incorporation, the plats and all rules and regulations and any architectural guidelines for the Association, all as may be supplemented or amended. The Association, and in an appropriate case, one or more aggrieved Members, may take action to enforce the terms of the Association Legal Documents directly against all “Violators.” “Violators” shall mean any Member, any Member’s family member, occupant or his or her guest who fails to comply with the Association Legal Documents. If a Member’s family member, guest or occupant violates the Association Legal Documents, the Association, in its sole discretion, is permitted to enforce the terms of the Association Legal Documents against: (1) only the Member; (2) only the violating family member, guest or occupant; or (3) both the Member and the violating family member, guest or occupant. Notwithstanding anything herein to the contrary, the Member of the Lot is always ultimately responsible for his or her own actions and the actions of all family members, occupants and guests of such Lot.


    Nothing herein shall be construed to affect the rights of an aggrieved Member or occupant to proceed independently for relief from interference with his or her personal or property rights against a Person violating the Association Legal Documents. The Board of Directors may, in its discretion, require the aggrieved Member or occupant to independently pursue all available remedies under Georgia law against the Violator before the Association intervenes and commences enforcement action against such Violator.

  2. Types of Enforcement Actions. In the event of a violation of the Association Legal Documents, the Association shall have the power to take any or all of the following actions separately or simultaneously; provided, however, all suspensions and fines shall comply with the procedures described below and nothing herein shall authorize the Association or the Board to deny ingress and egress to or from a Lot:

    1. Suspend all Violators’ rights to use the Common Property;

    2. Suspend the voting rights of a violating Member;

    3. Impose reasonable fines against all Violators, which shall constitute a specific assessment against and lien on the violating Member’s Lot;

    4. Use self-help to remedy the violation;

    5. Bring an action for permanent injunction, temporary injunction and/or specific performance to compel the Violator to cease and/or correct the violation; and

    6. Record in the Fulton County land records a notice of violation identifying any uncured violation of the Association Legal Documents regarding the Lot.

  3. Suspension and Fining Procedure.  Except as provided below, before imposing fines or suspending right to use the Common Property or the right to vote, the Association shall give a written violation notice to the Violator as provided below.

    1. Violation Notice.  The written violation notice to the Violator shall:

      1. Identify the violation, suspension(s) and/or fine(s) being imposed; and

      2. Advise the Violator of the right to request a violation hearing before the Board of Directors to contest the violation or request reconsideration suspension(s) or the fine(s).


        Notwithstanding the Violator's right to request a violation hearing, suspension(s) and/or fine(s) shall commence on the date of the written violation notice, unless a later date is specified in such notice.

    2. Violation Hearing.  If the Violator submits a written request for a violation hearing within 21 days of the date of the violation notice described above, then the Board of Directors shall schedule and hold, in executive session, a violation hearing. If a Violator fails to timely request a violation hearing, such Violator loses the right to contest the violation and to request reconsideration of the suspension(s) and/or the fine(s). If a Violator timely requests a violation hearing, the Violator shall have a reasonable opportunity to address the Board regarding the violation; provided, however, the Board may establish rules of conduct for the violation hearing, including but not limited to, limits on the amount of time one person can speak and limits on the number of participants who may be present at one time. The minutes of the violation hearing shall contain a written statement of the results of such hearing.

    3. No Violation Notice and Hearing Required.  No violation notice or violation hearing shall be required to:

      1. Impose late charges on delinquent assessments;

      2. Suspend a Member’s voting rights if the Member’s Lot is shown on the Association’s books and records to be more than 30 days past due in any assessment or charge, in which case suspension of the Member’s right to vote shall be automatic and shall continue until the violation no longer exists or the Board of Directors otherwise reinstates such rights in writing;

      3. Suspend a Member’s right to use the Common Property if the Member’s Lot is shown on the Association’s books and records to be more than 30 days past due in any assessment or charge, in which case suspension of the Member’s right to use the Common Property shall be automatic;

      4. Engage in self-help in an emergency;

      5. Impose fines for each day of a continuing violation after sending an initial Violation Notice and waiting the 21-day period allowed for a violation to request a hearing, in which case, each day the violation continues or occurs again constitutes a separate violation and fine(s) may be imposed on a per diem basis without any further notice to the Violator; or

      6. Impose fines if the violation is not continuing but the same violation occurs again on the same Lot, in which case fine(s) may be imposed on a per diem basis without any further notice to the Violator.

  4. Self-Help.  In addition to all other enforcement rights granted herein, the Board of Directors may elect to enforce any provision of the Association Legal Documents by self-help without the necessity for compliance with the Suspension and Fining Procedures described above.


    By way of example and not limitation, the Association or its duly authorized agent shall have the authority to tow vehicles that are in violation of parking regulations and enter a Lot or any portion of the Common Property to abate or remove any structure, thing or condition that violates the Association Legal Documents. Unless an emergency exists, before exercising self-help, the Association shall give the Violator at least two days’ prior written notice. Such notice shall request that the Violator remove and abate the violation and restore the Lot to substantially the same condition that existed prior to the structure, thing or condition being placed on the Lot and causing the violation. Such removal, abatement and restoration shall be accomplished at the Violator’s sole cost and expense. If the same violation occurs again on the same Lot, the Association may exercise self-help without any further notice to the Violator.

  5. Injunctions and Other Suits at Law or in Equity.  All Members agree and acknowledge that there may not be adequate remedies at law to enforce the Association Legal Documents. Therefore, in addition to all other enforcement rights granted herein, the Association is hereby entitled to bring an action for permanent injunction, temporary injunction and/or specific performance to compel a Violator to cease and desist and/or correct any violation.

  6. Costs and Attorney’s Fees for Enforcement Actions.  In any action taken by the Association to enforce the Association Legal Documents, the Association shall be entitled to recover from the Violator, any and all costs incurred by the Association, including but not limited to attorneys’ fees actually incurred, all of which shall constitute a lien against the violating Member’s Lot.

  7. Failure to Enforce.  The Board of Directors has the sole discretion to decide which, if any, enforcement action to pursue against each Violator. The failure of the Board to enforce any provision of the Association Legal Documents shall not be deemed a waiver of the right of the Board to do so thereafter. No right of action shall exist against the Association for failure to enforce if the Board of Directors determines that:

    1. the Association’s position is not strong enough to justify taking enforcement action;

    2. a particular violation is not of such a material nature as to be objectionable to a reasonable person;

    3. a particular violation is not of such a material nature to justify the expense and resources to pursue or continue to pursue enforcement action;

    4. the aggrieved Member or occupant asserting a failure of enforcement has not independently pursued all available individual remedies under Georgia law; or

    5. the Association enforces only against a Member for the violation of the Member’s family member, guest or occupant or the Association does not enforce against the Member and enforces only against the violating family member, guest or occupant.