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This Instrument Prepared by:
BUCK C. GIBSON, P.A.
100 North Spring
Little Rock, Arkansas 72143
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DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS FOR CERTAIN REAL PROPERTY
LOCATED IN THE CITY OF LITTLE ROCK, PULASKI COUNTY, ARKANSAS
THIS DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS FOR THE DOMINION,
A SUBDIVISION OF CERTAIN REAL PROPERTY LOCATED IN THE CITY OF LITTLE ROCK, PULASKI
COUNTY, ARKANSAS, (this "Declaration") is made on the date hereinafter set forth by Wiggins
Family Real Estate Holdings, LLC, a Arkansas limited liability corporation ("Declarant"), for the
purpose of evidencing the covenants, conditions and restrictions contained herein.
W I T N E S S E T H:
WHEREAS, Declarant is the owner of that certain real property platted as The Dominion,
an Addition to the City of Little Rock, Pulaski County, Arkansas, as a planned unit development,
as approved by the City of Little Rock "(City") and filed of record, on the ____ day of ______,
in ____ Book ____, at Page _______, in the Records of Pulaski County, Arkansas (the
"County"), said subdivision hereinafter referred to as the "Development" or the "Subdivision",
and such plat, as may be amended or further replatted, being referred to as the "Plat", all of said
real property being more specifically described in the Plat of the Development and on Exhibit A
hereto, which are incorporated herein and made a part hereof for all purposes (the "Property").
NOW, THEREFORE, Declarant hereby declares that all of the Property shall be held, sold
and conveyed subject to the following easements, restrictions, covenants and conditions, all of
which are for the purpose of enhancing and protecting the value, desirability and attractiveness
of the Property. These easements, covenants, restrictions and conditions shall run with the
Property and be binding on all parties having or acquiring any right, title or interest in the
Property or any part thereof their heirs, successors and assigns, and shall inure to the benefit of
Declarant and each owner thereof.
ARTICLE I
ADDITIONAL DEFINITIONS
1.1. Association. "Association" shall mean and refer to that not-for-profit
corporation organized to administer the restrictions contained herein, along with its successors
and assigns.
1.2. Areas of Common Responsibility. "Areas of Common Responsibility" shall
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mean those areas listed below in which the Association shall maintain, keep and repair:
1.2.1. Any and all areas as may be depicted on the Plat for the Development, including
those areas designated as "Greenspace Area" on the Plat
1.2.2. Any and all landscaping (but excluding landscaping, plants, shrubs, sprinklers and
other elements located in or on each Lot), entry way features, signage, landscaping
and monument signage, screening walls, irrigation systems, lighting and
improvements located within the Development, including but not limited to the
entry features and signage located within the Development and common area
screening within the Development.
1.2.3. Any and all landscape and drainage easements, detention ponds, right of ways,
and common areas that may be depicted on the Plat to the extent same is not
maintained by the City, any governmental agency or other entity.
1.2.4. The perimeter fence surrounding the Property built by Declarant and all
replacements and extensions thereof (the "Perimeter Fence").
1.3. Declarant. The term "Declarant" shall mean Wiggins Family Real Estate Holdings,
LLC, an Arkansas limited liability company, and any party to whom it shall expressly assign in writing, its
rights, powers, privileges and prerogatives hereunder.
1.4. City. “City” shall mean the City of Little Rock, Arkansas.
1.5. County. “County” shall mean Pulaski County, Arkansas.
1.6. Home. "Home" shall mean a single-family residential unit constructed on a Lot being a
part of the Property, including the parking garage and related improvements utilized in connection
therewith and the Lot upon which the Home is located.
1.7 Lienholder. “Lienholder” or “Mortgagee” shall mean the holder of a first mortgage
lien, either on any Home and/or any Lot.
1.8. Lot. “Lot” or “Lots” shall mean and refer to a portion of the Property designated as a
Lot on the Plat of the Property, excluding open space, streets, alleys and any Area of Common
Responsibility. Where the context requires or indicates, the term Lot shall include the Home and all other
improvements which are or will be constructed on the Lot.
1.9. Member. “Member” shall mean and refer to every person or entity that holds
membership in the Association. The Declarant and each Owner shall be a Member in the Association.
1.10. Owner. “Owner” shall mean and refer to the record Owner, other than Declarant
whether one or more persons or entities, of a fee simple title to any Lot and shall include any homebuilder,
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but shall exclude those having such interest merely as security for the performance of an obligation.
However, the term "Owner" shall include any Lienholder or Mortgagee who acquires fee simple title to
any Lot which is a part of the Property, through deed in lieu of foreclosure or through judicial or non-
judicial foreclosure.
ARTICLE II
PROPERTY RIGHTS
2.1. Maintenance of Areas of Common Responsibility by the Declarant and the Association.
Initially, the Declarant will be solely obligated to maintain and improve the Areas of Common
Responsibility in a prudent manner to enhance the overall appearance of the Development. Upon the
happening of: (i) either of the events set forth in Section 3.2.2 hereunder; (ii) a written declaration
recorded in the records of the County relinquishing the obligations of Declarant to the Association; or
(iii) the Declarant having sold seventy-five percent (75%), by number of all Lots in the development, as
may be increased from time to time; the Association will be solely obligated to maintain and improve
the Areas of Common Responsibility in a prudent manner to enhance the overall appearance of the
Development as such, the Declarant and Association shall not, except as the Declarant or Association
may reasonably deem appropriate to comply with applicable laws or to protect the health or welfare of
the Development or the Members, cause (i) any buildings or permanent structures to be constructed
within the Areas of Common Responsibility, or (ii) allow any interference or conflict with the natural or
planted vegetation or trees in the Areas of Common Responsibility. The Association shall have the
following rights with regard to the Areas of Common Responsibility:
2.1.1. The right to dedicate or transfer all of any part of the Areas of Common
Responsibility to any public agency or authority subject to such conditions as may be
agreed to by the Members. No such dedication or transfer shall be effective unless (a) an
instrument of agreement to such dedication or transfer, signed by two-thirds (⅔) of each
class entitled to vote (determined pursuant to Section 3.2 hereof) is properly recorded, in
the Real Property Records of the County, and (b) the City consents in writing to and
accepts the dedication or transfer;
2.1.2. The right to borrow money to be secured by a lien against the Areas of
Common Responsibility; however, the rights under such improvement mortgage shall
be subordinate and inferior to the rights of the Owners hereunder; and
2.1.3. The right to enter upon and make rules and regulations relating to the
use of the Areas of Common Responsibility and the right to entry upon any access,
maintenance or other easements for the purposes of maintaining the Areas of Common
Responsibility.
2.2. Title to Areas of Common Responsibility. The recordation of this Declaration
shall serve as a dedication and conveyance to the Association, without consideration, of the fee simple
title to the Areas of Common Responsibility identified in the Plat and owned by Declarant free and
clear of monetary liens and encumbrances other than those created in or subordinate to this Declaration
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2.3 Maintenance of Lots. The Association, to the extent funds ar available so to do and,
in the event such funds are not available, in the sole and exclusive determination of the Association or
the Declarant, the Association shall provide notice to the all Owners (excluding lienhiolders and
mortgagees) of the Association’s inability to undertake such upkeep, maintenance. In such event the
Association may, in its sole and exclusive determination but shall not be required so to do, undertake
those items of upkeep and maintenance as the Association may determine to be necessary, upon such
schedule as the Association may in its sole and exclusive determination, determine with respect to the
front yard of each Lot and for the side yard on any Lot facing any street with such upkeep and
maintenance to include, but not be limited to:
2.3.1. mowing and edging;
2.3.2. trimming of shrubs;
2.3.3. weeding of planting beds;
2.3.4. mulching planting beds once per year; and
2.3.5. winterizing and de-winterizing sprinkler systems.
2.4. Obligations of Class “B” Members. Notwithstanding any provision herein to the
contrary, Declarant shall be responsible only for the maintenance and upkeep of the Property and the
Lots as may be determined to be necessary by Declarant, in the sole and exclusive determination of
Declarant only. Neither the Association nor any owner shall have any right to compel Declarant to
perform any act of maintenance or upkeep as to any Lot or any of the Property owned by Declarant.
ARTICLE III
ASSOCIATION MEMBERSHIP AND VOTING RIGHTS
3.1. Membership. Declarant, during the time it owns any Lots, and each person or entity
who is a record Owner of a fee or undivided fee interest in any Lot shall be a Member of the
Association. The foregoing is not intended to include persons or entities that hold an interest merely as
security for the performance of an obligation, Membership shall be appurtenant to and may not be
separated from any ownership of any Lot which is subject to assessment by the Association. Transfer
of ownership, either voluntarily or by operation of law, shall terminate such Owner's membership in the
Association, and membership shall be vested in the transferee; provided, however, that no such transfer
shall relieve or release such Owner from any personal obligation with respect to assessments which
have accrued prior to such transfer.
3.2. Voting Rights. The Association shall have two classes of voting membership.
3.2.1. Class "A". The Class "A" Members shall be all Owners. The Class
"A" Members shall be entitled to one vote for each Lot owned. When more than one
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person holds an interest in any Lot all such persons shall be Members. The vote for
such Lot shall be exercised as they among themselves determine, but in no event shall
more than one vote be cast with respect to any Lot.
3.2.2. Class "B". The Class "B" Member shall be Declarant. The
Declarant shall be entitled to three votes for each Lot it owns; provided however the
Declarant shall cease to be a Class "B" Member and shall become a Class "A" Member
entitled to one vote per Lot on the happening of either of the following events:
3.2.2.1. When the total votes outstanding in the Class "A" membership equals
the total votes outstanding in the Class "B" membership or when
Declarant owns less man twenty-five percent (25%), as measured by
overall acreage, of the Property, or
3.2.2.2. Upon the expiration of ten (20) years from the recording date of this
instrument in the Real Property Records of the County.
3.3. No Cumulative Voting. At all meetings of the Association, there shall be no cumulative
voting. Prior to all meetings, the Board of Directors shall determine the total number of votes
outstanding and entitled to vote by the Members.
3.4. Association's Powers. In addition to the rights of the Association set forth in other
sections of this Declaration, the Association shall have the duty to enforce the covenants under this
Declaration and maintain all Areas of Common Responsibility and shall have the right, power, and
authority to do any act which is consistent with or required by the provisions of this Declaration or the
Bylaws, whether the same be expressed or implied, including but not limited to the following:
3.4.1. The power to levy and collect Assessments (as hereinafter defined), of
whatever nature for the maintenance, repair or replacement of the Areas of Common
Responsibility existing on the Property and for such other purposes as are herein
provided;
3.4.2. The power to keep accounting records with respect to the Association's
activities;
3.4.3. The power to contract with and employ others for maintenance and
repair or clerical work; and
3.4.4. The power to adopt rules and regulations concerning the operation of
the Association.
3.5. City's Rights. Should the Declarant, the Association or its Board fail or refuse to
maintain such Areas of Common Responsibility to City specifications for an unreasonable time, not to
exceed one hundred twenty (120) days after written request to do so, the City, shall have the same right,
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power and authority as is herein given to the Association and its Board to enforce this Declaration and
levy Assessments in the manner set forth herein. It is understood that in such event, the City may elect
to exercise the rights and powers of the Association or its Board, to the extent necessary to take any
action required and levy any Assessment that the Association might have, either in the name of the
Association, or otherwise, to cover the cost of maintenance of such Areas of Common Responsibility.
ARTICLE IV
ASSESSMENTS MAINTENANCE FUND AND ASSESSMENT LIENS
4.1. Creation of the Lien and Personal Obligation of Assessments. Each Owner of any
Lot by acceptance of a deed therefore, whether or not it shall be expressed in any such deed or other
conveyance, covenants and agrees to pay to the Association: (i) annual assessments or charges (ii)
charges in connection with the transfer of a Lot, and (iii) special assessments for capital improvements.
Such assessments (collectively, the "Assessments") are to be fixed, established and collected as
provided herein. Assessments, together with such interest thereon and costs of collection thereof as
hereinafter provided, shall be a charge on the Lot and shall be secured by a continuing lien which is
hereby created and impressed for the benefit of the Association upon the Lot against which each such
Assessment is made. Each such Assessment together with such interest costs and reasonable attorney's
fees shall also constitute a personal obligation of the person or entity who was the record Owner of
such Lot at the time of the Assessment. The personal obligation for delinquent Assessments shall not
pass to successors in title unless expressly assumed by such successors; however, the lien upon the Lot
shall continue until paid.
4.2. Purpose of Assessments. The Assessments levied by the Association shall be
used exclusively for the purpose of promoting the recreation, health and welfare of the Owners of the
Lots, the improvement and maintenance of the Areas of Common Responsibility and any other property
owned by the Association, and the performance and/or exercise of the rights and obligations of the
Association arising hereunder. Assessments shall include, but not be limited to, funds to cover actual
Association costs (including reasonable reserves) for all taxes, insurance, repair, replacement
maintenance and other activities as may from time to time be authorized by the Board of Directors; legal
and accounting fees, and any fees for management services; expenses incurred in complying with any
laws, ordinances or governmental requirements applicable to the Association or the Property; reasonable
replacement reserves and the cost of other facilities and service activities, including, but not limited to,
mowing grass, grounds care, sprinkler system located in any Area of Common Responsibility,
landscaping, and other charges required or contemplated by this Declaration and/or that which the
Association shall determine to be necessary to meet the primary purpose of the Association, including
the establishment and maintenance of a reserve for repair, maintenance, taxes and other charges as
specified herein, including but not limited to the any park facility.
4.3. Basis and Maximum of Annual Assessments and Transfer Fees on the Sale of Lots.
4.3.1. Upon the recording of this Declaration, the regular maximum annual
Assessment shall be an amount, without pro-ration, of: (i) $270.00 per calendar quarter
from the time each Lot is purchased until the Home is substantially completed; and (ii)
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$375.00 per calendar quarter from and after the date a Home is substantially completed.
For the purposes hereof, completion shall mean the earlier of: (i) the time an Owner
establishes that Owner’s residence in a Home; ;or (ii) 270 days after permits are issues
for construction of the Home.
4.3.2. From and after January 1 of the first full year after the date of
recordation of this Declaration and each year thereafter, the maximum regular annual
assessment may be increased by an amount up to ten percent (10%) over the preceding
year's regular annual assessment solely by the Board of Directors. Any increase over
and above 10% of the previous year's regular annual assessment shall be done only by
the prior written approval of sixty-six and two-thirds percent (66 ⅔ %) of the
outstanding votes (determined pursuant to Section 3.2 hereof) held by the Members at a
meeting at which a quorum is present.
4.3.3. In addition to the regular annual assessment, as a condition to the sale of
every Lot by an Owner in the Development, an origination fee of $100.00 shall be
charged to Purchaser of the Lot being conveyed and the pro-rata share of annual
Assessments then due on such Lot shall be paid by Purchaser of the Lot to the
Association. The origination fee provided for herein shall be for the benefit of the
Association, to be used to establish a capital reserve for the Association and shall only
increase by an amount to be determined by the Board of Directors which may be
increased or decreased by the vote of sixty-six and two-thirds percent (66 ⅔ %) of the
outstanding votes (determined pursuant to Section 3.2 hereof) held by the Members at a
meeting at which a quorum is present.
4.4. Special Assessments. In addition to the regular annual Assessment and origination
fees payable on the sale of lots authorized above, the Association may levy, in any assessment year, a
Assessment applicable to that year only, for the purpose of defraying, in whole or in part; the costs
incurred by the Association pursuant to the provisions of this Declaration, provided that any such
Assessment shall have the prior written approval of sixty-six and two-thirds percent (66 ⅔ %) of the
outstanding votes (determined pursuant to Section 3.2 hereof) held by the Members at a meeting at
which a quorum is present. Any Special Assessments shall be prorated based on the period of time the
Owner owns the Lot during such year.
4.5. Notice and Quorum for any Action Authorized Under Sections 4.3 and 4.4. Written
notice of any meeting called for the purpose of taking any action authorized under Sections 4.3 and 4.4
hereunder shall be given to all Members not less than ten (10) days nor more than twenty (20) days in
advance of such meeting. At such meeting, the presence of Members or of written proxies entitled to
cast sixty percent (60%) of all the votes entitled to be cast by the Members of the Association shall
constitute a quorum. If the required quorum is not present, another meeting may be called subject to the
same notice requirements and the required quorum at the subsequent meeting shall be one-half (½) of
the required quorum at the preceding meeting.
4.6. Uniform Rate of Assessment. Both the regular annual and Special Assessments shall
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be fixed at a uniform rate for all Lots, and shall commence and be due in accordance with the provisions
of Section 4.7 hereof. Each Owner (other than Declarant who is required to pay the deficiency described
below), shall pay one hundred percent (100%) of the established Assessment for each Lot he or it owns.
4.7. Date of Commencement of Annual Assessments: Due Dates.
4.7.1. The obligation to pay regular annual assessments provided for herein
shall commence no earlier than the date this Declaration is recorded. The Assessments
shall then be due or to become due thereafter on the first day of every calendar quarter or
on such payment dates as may be established by the Association. Declarant shall not be
required to pay any Assessment of any kind or nature.
4.7.2. Unless provided above, all Assessments for the first Assessment year
shall be fixed by the Association prior to the sale of the first Lot to an Owner. Except for
the first Assessment year, the Association shall fix the amount of the Assessment at least
thirty days in advance of each Assessment year, which shall be the calendar year;
provided, however, that the Association shall have the right to adjust the regular
Assessment upon thirty days written notice given to each Owner, as long as any such
adjustment does not exceed the maximum permitted pursuant to Section 4 hereof.
Written notice of the regular annual Assessment shall be given as soon as is practicable
to every Owner subject thereto. The Association shall upon demand at any time, furnish
a certificate in writing signed either by the President, Vice President or the Treasurer of
the Association setting forth whether the annual and special Assessments on a specified
Lot have been paid and the amount of any delinquency. A reasonable charge may be
made by the Association for the issuance of these certificates. Such certificates shall be
conclusive evidence of payment of any Assessment therein stated to have been paid.
4.7.3. No Owner may exempt himself from liability for Assessments by
waiver of the use or enjoyment of any portion of the Development or Areas of Common
Responsibility or by abandonment of his Home.
4.8. Effect of Non-Payment of Assessments: Remedies of the Association.
4.8.1. All payments of the Assessments shall be made to the Association at its
principal place of business, or at such other place as the Association may otherwise
direct or permit. Payment shall be made in full regardless of whether any Owner has
any dispute with Declarant, the Association, any other Owner or any other person or
entity regarding any matter to which this Declaration relates or pertains. Payment of the
Assessments shall be both a continuing affirmative covenant personal to the Owner and
a continuing covenant running with the Lot.
4.8.2. Any Assessment provided for in this Declaration which is not paid
when due shall be delinquent If any such Assessment is not paid within thirty (30)
days after the date on which any such payment shall be due as established by the
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Association or Declarant, as the case may be, shall bear interest at maximum rater
permitted by law. The Association may, upon such default, bring an action at law
against the Owner personally abligated to pay the Assessment or foreclose the lien
of the Assessment against the Lot. The Owner may not waive or otherwise
escape liability for the Assessment provided for in this Declaration by any non-
use of ay area or by abandonment of any Lot. There shall be added to the amount
of such Assessment the costs of preparing and filing the complaint in such action,
and in the event a judgment is obtained, such judgment shall include said interest
and a reasonable attorney's fee, together with the costs of action. Each Owner
vests in the Association or its assigns, the right and power to bring all actions at
law or in equity foreclosing such lien against such Owner, and the expenses
incurred in connection therewith, including interest, costs and reasonable
attorney's fees shall be chargeable to the Owner in default. Under no
circumstances, however, shall Declarant or the Association be liable to any
Owner or to any other person or entity or failure or inability to enforce any
Assessments.
4.8.3. No action shall be brought to foreclose said Assessment lien in less
than thirty (30) days after the date a notice of claim of lien is deposited with the
postal authority or is otherwise delivered as required by Law.
4.8.4. Any such sale provided for above is to be conducted in accordance
with the provisions for judicial sales as may be provided for at the time of any
such action in the State of Arkansas (as it may be amended from time to time) or
in any other manner permitted by law. The Association, through duly authorized
agents, shall have the power to bid on the Lot at foreclosure sale and to acquire
and hold, lease, mortgage and convey the same.
4.8.5. The Assessment lien and the right to foreclosure sale hereunder
shall be in addition to and not in substitution of all other rights and remedies
which the Association and its successors or assigns may have hereunder and by
law, including the right of suit to recover a money judgment for unpaid
Assessments, as above provided.
4.9. Subordination of Lien to First Mortgages; Waiver. The lien securing the
Assessments provided for herein shall be expressly subordinate to the lien of any first lien
mortgage on any Lot. No sale or transfer shall relieve such Lot from liability for any Assessment
thereafter becoming due, in accordance with the terms herein provided. Each Owner, by their
acceptance of the Lot, and for the purpose of enforcing the lien of any Assessment only, waives
any homestead, right of appraisement, dower, curtesy, right to cure and any other provisions of
Arkansas law relating the right of the Association, the Declarant or any other person to enforce
the lien of any Assessment.
4.10. Management Agreements. The management of the Development shall be
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undertaken by Declarant until management of the Development is relinquished to the
Association by Declarant pursuant to Article II hereof. Declarant and the Association shall be
authorized to enter into management agreements with third parties in connection with the
operation and management of the Development and the performance of its obligations hereunder.
A copy of all such agreements shall be available to each Owner. Any and all management
agreements entered into by the Association shall provide that said management agreement may
be canceled with or without cause and without penalty by the Association with thirty (30) days
written notice and the management company with ninety (90) days written notice. Any and all
management agreements shall be for a term not to exceed one year and shall be made with a
professional and responsible party or parties with proven management skills and experience
managing a project of this type. Declarant and the Association may, at its discretion, assume self
management of the development by the Association.
4.11. Insurance Requirements. The Association shall obtain insurance policies
covering the Areas of Common Responsibility covering all damage or injury caused by the
negligence of the Association, any of its employees, officers, directors and/or agents, including, but
not limited to, commercial general liability insurance, directors and officers liability insurance, and
such other insurance as the Association may from time to time deem necessary or appropriate.
ARTICLE V
ARCHITECTURAL CONTROL COMMITTEE
5.1. Appointment of Members. The Declarant shall appoint an Architectural Control
Committee (the "Committee"), which shall consist of three members who shall be natural persons and
may be employed by Declarant. The initial members of the Committee are: (i) Blake Wiggins; and (ii)
Joey Wiggins. All matters before the Committee shall be decided by majority vote of its members.
After all of the Lots are sold by Declarant, the Association shall assume all of the rights and powers of
the Committee. In the event of death, incapacity or resignation of a member of the Committee, the
successor for such member shall be appointed by the majority of members of the Committee (if before
the date that all of the Lots are sold by Declarant) and by the Association (if after the date that all of the
Lots are sold by Declarant).
5.2. Submission of Plans to Architectural Control Committee. No building, fence,
wall, parking area, swimming pool, spa, pole, mail box, driveway, fountain, pond, tennis court, sign,
exterior color or shape, or new structure or modification of a structure shall be commenced, erected or
maintained upon any Lot (including, without limitation, any patio or garage used in connection with
any Lot) after the purchase of any Lot from Declarant, nor shall any exterior addition to or change or
alteration therein be made until: (i) the plans and specifications showing the nature, kind, shape, height,
materials and location of the same are submitted to and approved by the Committee; and (ii) the Owner
shall receive written acceptance of the proposed improcements from the Committee. This consent shall
be in addition to any permit or other authorization required by the City or the County. Plans and
specifications shall be submitted to the Committee at least thirty (30) days prior to the commencement
of any construction or modification. A Site and Landscape plan as prepared by Whitlow Engineering,
shall be submitted showing the entire Lot with proposed improvements. Along with the site and
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landscape plan the following must be submitted : (a) floor plan and elevations of all faces of the
proposed structure; (b) the length, width, and height of the proposed structure or improvement; (c) the
distance of the proposed structure or improvement to the rear lot line and to the nearest side lot line; and
(d) a description of all exterior construction materials. A copy of the above described plans and
specifications may be retained by Declarant. The Committee shall have the right to require a
reasonable submission fee for each set of plans and specifications submitted for its review.
5.3. Approval of Plans. The Committee shall review the plans and specifications and
notify the Owner in writing of its approval or disapproval. Any disapproval shall set forth the
elements disapproved and the reason or reasons thereof. The judgment of the Committee in this
respect in the exercise of its sole and absolute discretion shall be final and conclusive and the Owner
shall promptly correct the plans and specifications (if disapproved) and resubmit them for approval.
No construction, alteration, change or modification shall commence until approval of the Committee
is obtained. This consent shall be in addition any permit or authorization required by the City or the
County. The Committee may approve any deviation from these covenants and restrictions as the
Committee, in its sole and absolute discretion, deems consistent with the purpose hereof. No member
of the Committee shall be liable to any Owner for any claims, causes of action or damages arising out
of the delay or denial of any submittal or grant of any deviation to an Owner. Future requests for
deviations submitted hereunder shall be reviewed separately and apart from other such requests and
the grant of a deviation to any Owner shall not constitute a waiver of the Committee's rights to strictly
enforce the Declaration and the architectural standards provided herein against any other Owner.
Approval by the Committee of the plans and specifications or its determination that the completed
construction or modification has been constructed in accordance with the plans and specifications
shall be deemed to be an acknowledgment by the Committee that such are in accordance with this
Declaration and such acknowledgment shall be binding against the Owners of the Lots and the
Property.
5.4. Committee Members' Liability. Neither the Declarant, the Association, the
Board, the Committee nor any employees, officers, directors or members thereof shall be liable for
damages or otherwise to anyone submitting plans and specifications for approval or to any Owner
affected by this Declaration by reason of mistake of judgment, negligence or nonfeasance arising out
of or in connection with the approval or disapproval of or failure to approve or disapprove, or any
delay associated with any approval or review, any plans or specifications. Any errors in or omissions
from the plans or the site plan submitted to the Committee shall be the responsibility of the Owner of
the Lot to which the improvements relate, and the Committee shall have no obligation to check for
errors in or omissions from any such plans, or to check for such plans’ compliance with the general
provisions of this Declaration, City codes, state statutes or the common law, whether the same relate
to Lot lines, building lines, easements or any other issue.
5.5. Homebuilder Plans. Notwithstanding anything to the contrary contained herein,
once a particular set of plans and specifications submitted by a homebuilder (which for purposes hereof
shall be defined as any entity or person in the business of constructing single family residences for the
purpose of sale to third parties) has been approved by the Committee or deemed approved, such
homebuilder may construct homes in the Development on any Lot in accordance with such plans and
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specifications without the necessity of obtaining subsequent approvals therefore, so long as there are no
major material changes in the plans and specifications and the Committee approves of the location of
the plans and specifications to prevent unnecessary duplication thereof within the Development, in
addition, notwithstanding anything herein to the contrary, all plans and specifications of Declarant are
hereby deemed to be approved by the Committee for all purposes.
5.6. Design Guidelines. The Committee has the right to issue Design Guidelines from
time to time which will contain the specific provisions applicable to all of the Lots regarding style,
basic site design issues, aesthetics of each home, the use of quality exterior finish materials and
minimum landscaping plans for the Lots. The Design Guidelines will be used by the Committee (along
with this Declaration) to determine the approval of all plans.
5.7. Exclusive Builders. The Declarant has the right to approve or deny certain builders
in their sole and absolute discretion. The Declarant at any time may add or delete builders from the
approved builder list, a copy of which is attached as Exhibit B. No individual or company of may
build, whether a builder by trade or serving as their own builder, unless they have been approved and
added to the approved builder list.
ARTICLE VI
CONSTRUCTION OF IMPROVEMENTS AND USE OF LOTS
6.1. Residential Use. The Property shall be used for single-family residential
purposes only as approved by the Committee. No building shall be erected, altered, placed or permitted
to remain on any Lot other than one (1) detached single family residence per Lot, which residence may
not exceed two (2) stories in height and an attached private garage as provided below, which residence
shall be constructed to minimum Federal Housing Authority ("FHA") and Veteran's Administration
("VA") standards, unless otherwise approved in writing by the Committee.
6.2. Single Family Use. Unless otherwise approved by the Committee, each residence
shall be limited to occupancy by only one family consisting of persons related by blood, adoption or
marriage or no more than two unrelated persons residing together as a single housekeeping unit, in
addition to any household or personal servant staff.
6.3. Garage. The garage shall be suitable for parking a minimum of two (2)
standard size automobile(s), which garage shall conform in design and materials with the main
structure. No carports are permitted in the Subdivision.
6.4. Declaration of Covenants, Conditions & Restrictions.
6.4.1. Restrictions on Resubdivision. No Lot shall be subdivided.
6.4.2. Driveways. All driveways shall be surfaced with concrete or similar
substance approved by the Committee.
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6.4.3. Burglar Bars. No bars or obstructions intended for use as burglar bars or
sold as devices intended to prohibit forced entry into a residence may be
placed on the exterior of a residence, including but not limited to windows
and doors.
6.4.4. Uses Specifically Prohibited.
6.4.4.1. No temporary dwelling, shop, trailer, or mobile
home of any kind or any improvement of a temporary
character (except children's playhouses, dog houses,
greenhouses, gazebos and buildings which may be placed
on a Lot only in places that are not visible from any street
on which the Lot fronts) shall be permitted on any Lot. All
such structures must be screened from adjoining neighbors
and may not be any further to the rear of the lot than the
end of the main house structure. Such structures may not
extend higher than six feet in height. The builder or
contractor may have temporary improvements (such as a
sales office and/or construction trailer) on a specifically
permitted Lot during construction of the residence on that
Lot. No building material of any kind or character shall be
placed or stored upon the Property until construction is
ready to commence, and then such material shall be placed
totally within the property lines of the Lot upon which the
improvements are to be erected.
6.4.4.2. No boat, marine craft, hovercraft, aircraft, recreational vehicle,
pick-up camper, travel trailer, motor home, camper body or
similar vehicle or equipment may be parked for storage in the
driveway or front yard of any dwelling or parked on any public
street on the Property, nor shall any such vehicle or equipment be
parked for storage in the side or rear yard of any residence. No
such vehicle or equipment shall be used as a residence or office
temporarily or permanently. This restriction shall not apply to any
vehicle, machinery or equipment temporarily parked while in use
for the construction, maintenance or repair of a residence in the
Development.
6.4.4.3. Except those used by a builder during the construction of
improvements, trucks with tonnage in excess of one and one-half
(1.5) tons and any commercial vehicle with painted advertisement
shall not be permitted to park overnight on the Property.
6.4.4.4. No vehicle of any size which transports flammable or
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explosive cargo may be kept on the Property at any time.
6.4.4.5. No motorized vehicle or similar equipment shall be
parked or stored in an area visible from any street except
passenger automobiles, passenger vans, motorcycles, pick-
up trucks (including those with attached bed campers) that
are in operating condition and have current license plates
and inspection stickers and are in current use.
6.4.4.6. No motorized vehicle may be parked on a regular
basis, which for the purposes hereof shall mean greater than
ten (10) days in any calendar month or for greater than five
(5) consecutive days. Upon notice to any Owner violating
the terms hereof, Declarant or the Association may, but
shall not be required to do so, tow any such vehicle at the
expense of the Owner of any lot for which such vechicle is
attributable. Any costs or charges associated with any
towing shall be an Assessment for any Lot for which the
vehicle is attributable.
6.4.4.7. No structure of a temporary character, such as a
trailer, tent, shack, barn, underground tank or structure or
other out-building shall be used on the Property at any time
as a dwelling; provided, however, mat any builder may
maintain and occupy model houses, sales offices and
construction trailers during the construction period, but not
as a residence.
6.4.4.8. No oil drilling, oil development operation, oil
refining, quarrying or mining operations of any land shall
be permitted in or on the Property, nor shall oil wells,
tanks, tunnels, mineral excavations or shafts be permitted
upon or in any part of the Property. No derrick or other
structure designed for use in quarrying or boring for oil,
natural gas or other minerals shall be erected, maintained or
permitted on the Property.
6.4.4.9. No animals, livestock or poultry of any kind shall
be raised, bred or kept on the Property except that dogs,
cats or other qualified animals may be kept as household
pets. Animals are not to be raised, bred or kept for
commercial purposes or for food. It is the purpose of these
provisions to restrict the use of the Property so that no
person shall quarter on the premises cows, horses, bees,
15
hogs, sheep, goats, guinea fowls, ducks, chickens, turkeys,
skunks or any other animals that may interfere with the
peace and quiet and health and safety of the community.
No more than three (3) cats and dogs, in the aggregate, will
be permitted on each Lot, and not more than two (2) of
which may be dogs. Pets must be restrained or confined to
the homeowner's rear yard within a secure fenced area or
within the house. It is the pet owner's responsibility to keep
the Lot clean and free of pet debris or odor noxious to
adjoining Lots. All animals must be properly registered
and tagged for identification in accordance with local
ordinances. No domestic household pet shall be allowed to
make unreasonable amount of noise, or to become a
nuisance, and no domestic pets will be allowed on any
property other than on the Lot of its Owner unless confined
to a leash.
6.4.4.10. No Lot or other area of the Property shall be used as
a dumping ground for rubbish or accumulation of unsightly
materials of any kind, including without limitation, broken
or rusty equipment, disassembled or inoperative cars and
discarded appliances and furniture. Trash, garbage or other
waste shall be kept only in clean and sanitary containers
and such containers) shall be kept in a place not visible
from any street, except on days when contents thereof are
collected by or as required by the City. The Committee
shall have the right to specify a specific location on each
Lot in which garbage containers must be placed for trash
collection service. Materials incident to construction of
improvements may only be stored on Lots during
construction of the improvement thereon.
6.4.4.11. No individual water supply system shall be
permitted on any Lot.
6.4.4.12. No individual sewage disposal system shall be
permitted on any Lot.
6.4.4.13. No garage, garage house or other out-building
(except for sales offices and construction trailers during the
construction period) shall be occupied by any Owner,
tenant or other person prior to the erection of a residence.
6.4.4.14. No air-conditioning apparatus shall be installed on
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the ground in front of a residence. No air-conditioning
apparatus shall be attached to any front wall or window of a
residence or other approved structure. No evaporative
cooler shall be installed on the front wall or window of a
residence.
6.4.4.15. Except with the written permission of the
Committee or as preempted by the FCC or other
governmental agency, no antennas, satellite dishes or other
equipment for receiving or sending sound or video signals
shall be permitted in or on the Property except that one
satellite dish or similar antenna that must be no greater than
one (1) meter in diameter and must be placed in the least
conspicuous location on a Lot where an acceptable quality
signal can be received so long as it is completely screened
from view from any adjacent street or other public area.
6.4.4.16. No Lot or improvement thereon shall be used for a
business, professional, commercial or manufacturing
purpose of any kind for any length of time. No business
activity shall be conducted on the Property which is not
consistent with single family residential purposes. No
noxious or offensive activity shall be undertaken on the
Property, nor shall anything be done which is or may
become an annoyance or nuisance to the neighborhood.
Nothing in this subparagraph shall prohibit a builder's
temporary use of a residence as a sales/construction office
for so long as such builder is actively engaged in
construction on the Property. Nothing in this subparagraph
shall prohibit an Owner's use of a residence for quiet,
inoffensive activities such as tutoring or giving art lessons
so long as such activities do not materially increase the
number of cars parked on the street or interfere with
adjoining homeowners' peaceful use and enjoyment of their
residences and yards. The addition of any beds, trees, or
plantings of any kind not set forth on plans approved by the
Committee are prohibited unless agreed upon by the
Committee in writing.
6.4.4.17. No fence, wall, hedge or shrub planting which
obstructs sight lines at an elevation between three and six
feet above the roadway shall be placed or permitted to
remain on any comer Lot within the triangular area formed
by the street right-of-way lines, or in the case of a rounded
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property corner, from the intersection of the street right-of-
way lines as extended. The same sight-line limitations shall
apply on any Lot within the area that is ten feet from the
intersection of a street right-of-way line with the edge of a
private driveway or alley pavement. No tree shall be
permitted to remain within such distance of such
intersections unless the foliage line is maintained at a
minimum height of six feet above the adjacent ground line.
6.4.4.18. Except for children's playhouses, dog houses,
greenhouses and gazebos, no building previously
constructed elsewhere shall be moved onto any Lot, it
being the intention that only new construction be placed
and erected on the Property.
6.4.4.19. Within those easements on each Lot as designated
on the Plat of the Development, no improvement, structure,
planting or materials shall be placed or permitted to remain
which might damage or interfere with the installation,
operation and maintenance of public utilities, or which
might alter the direction of flow within drainage channels
or which might obstruct or retard the flow of water through
drainage channels. The general grading, slope and drainage
plan of a Lot as established by the Declarant's approved
development plans may not be altered without the approval
of the City and/or other appropriate agencies having
authority to grant such approval.
6.4.4.20. No sign of any kind or character, including (a) any
signs in the nature of a "protest" or complaint against
Declarant or any homebuilder, (b) or that describe, malign
or refer to the reputation, character or building practices of
Declarant or any homebuilder, or (c) discourage or
otherwise impact or attempt to impact anyone's decision to
acquire a lot or residence in the Subdivision shall be
displayed to the public view on any Lot or from any home
on any Lot, except for one professionally fabricated sign of
not more than five square feet advertising the property for
rent or sale, or signs used by a builder to advertise the
property during the construction and sales period.
Moreover, no Owner may use any public medium such as
the "internet" or any broadcast or print medium or
advertising to similarly malign or disparage the building
quality or practices of any homebuilder, it being
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acknowledged by all Owners that any complaints or actions
against a homebuilder or Declarant are to be resolved in a
private manner and any action that creates controversy or
publicity for the Subdivision or the quality of construction
of any homes within the Subdivision will diminish the
quality and value of the Subdivision. Declarant, any home
builder, or their agents shall have the right, without notice,
to remove any sign, billboard or other advertising structure
that does not comply with the above, and in so doing shall
not be subject to any liability for trespass or any other
liability in connection with such removal. The failure to
comply with this restriction will also subject any Owner to
a fine of $100.00 per day (to be collected by Declarant) for
each day that such Owner fails to comply with this
restriction. The non-payment of such fine can result in a
lien against said Lot, which lien is deemed to be an
Assessment and may be enforced and foreclosed on in
accordance with the terms set forth in this Declaration in
order to collect such fine by the Declarant or any Owner in
the Subdivision.
6.4.4.21. Outdoor clothes lines and drying racks visible to
adjacent Properties are prohibited. Owners or residents of
Lots where the rear yard is not screened by solid fencing or
other such enclosures, shall construct suitable enclosure or
screening to shield from public view yard maintenance
equipment and/or storage of materials.
6.4.4.22. Except within fireplaces in the main residential
dwelling, equipment for outdoor cooking, and ornamental
fire pits, no burning of any kind or nature shall be permitted
at any place upon the Property.
6.4.4.23. No reflective or mirrored glass or tin foil shall be
used on, in or for the windows or doors of any buildings or
other improvements constructed upon a Lot.
6.4.4.24. No noise or other nuisance shall be permitted to
exist or operate upon any portion of the Lot so as to be
offensive or detrimental to any other portion of the
Property or to its occupants.
6.5. Accessory Structures. Accessory Structures that are approved by the Committee
may be place on the lot at approved locations as designated by the Committee. Cart houses built
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with materials and designs matching and consistent the home to be constructed on any Lot and,
or as approved by the Committee may be located on the rear lot line of Lots adjoining certain
designated Green Belt areas. Any cart house may not exceed 400 square feet absent the express,
written approval of the Declarant or the Committee.
6.6. Park Area. The Park Area designated on the Plat is for the enjoyment of all
residents of the Development and may not be exclusively reserved by any lot owner. From time
to time the Declarant or the Board of Directors of the Association may promulgate rules and
regulations regarding the operation or concerning the Park Area. Only pedestrian and bicycle
traffic may use the pedestrian gate designated in the Park Area. Notwithstanding any other rules
promulgated by the Declarant or the Association, all animals in the Park Area must be on a leash
and pet waste and trash must be disposed of at the appropriate locations.
6.7. Green Belts. Green Belts are for the enjoyment of all the residents of the
subdivision. They may be used for Cart, Pedestrian and Bicycle traffic with the exception of the
path running parallel with the South perimeter wall of the development subdivision which shall
be restricted from Cart use. Only ELECTRIC CARTS or approved environmental carts are
allowed in the Development and may be used in the Green Belt areas. Residents adjoining a
Green Belt will be required to plant at least two trees at designated areas as approved by the
Committee and must keep the tree watered until establishment. Other plantings in the Green Belt
by any Owner is prohibited as these areas are designed for the natural growth of native plants.
All animals in Green Belts must be on a lease and pet waste and trash must be disposed of at the
appropriate locations. From time to time the Declarant or the Board of Directors of the
Association may promulgate further rules and regulations in regard to the Green Belts.
6.8 [Intentionally Omitted]
6.9. Minimum Floor Area. The total air-conditioned living area of the main residential
structure, as measured to the outside of exterior walls (but exclusive of open porches, garages,
patios and detached accessory buildings), shall be not less than one thousand eight hundred
(1,800) square feet or the minimum floor area as specified by the City, whichever is greater.
6.10. Building Materials. The total exterior wall area (excluding windows, doors of
each residence constructed on a Lot) shall be constructed of only materials approved by the
Committee.
6.11. Setback Requirements. No dwelling shall be located on any Lot nearer to the front lot
line, the rear lot line, or the side lot lines than the minimum setback lines shown on the Plat or as
required by the City.
6.12. Waiver Of Setback Requirements. With the written approval of the Committee and
subject to platting and zoning restrictions, any building may be located further back from the front
property line of a Lot than provided above, where, in the opinion of the Committee, the proposed
location of the building will enhance the value and appearance of the Lot and will not negatively impact
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the appearance of adjoining Lots.
6.13. Fences and Walls. All fences and walls shall be constructed of masonry, brick,
wood or other material approved by the Committee and in locations approved by the Committee. No
fence or wall on any Lot shall extend nearer to any street than the front of the residence thereon. Except
as otherwise specifically approved by the Committee, all street-side side yard fencing on comer Lots
shall be set no closer to the abutting side street than the property line of such Lot (or the applicable side
setback line if required by applicable City ordinance or regulation). No portion of any fence shall exceed
six (6) feet in height. Any fence or portion thereof shall be constructed as required by the Declarant on
the Specific Lot Requirement Exhibit attached.
6.14. Mailboxes. Mailboxes shall be standardized and shall be constructed of a material
and design approved by the Committee (unless gangboxes are required by the U.S. Postal Service).
6.15. Landscaping.
6.15.1. Landscaping of each Lot shall be completed within sixty (60) days (subject to
extension for delays caused by inclement weather, restrictions or delays caused by
governmental regulations prohibiting new planting or watering due to restricted water use) after
the home construction is completed and shall include grassed front yards. No artificial
vegetation shall be permitted on the portion of any Lot or outside of any building on the Lot.
6.15.2. Within one hundred twenty (120) days of the purchase of a Lot, the Owner
shall either: (i) hydroseed the Lot with a grass approved by the Declarant, the Association or
the Committee; or (ii) sod the lot with a ground covering approved by the Declarantr, the
Association or the Committee.
6.15.3. Within one hundred twenty (120) days of the purchase of a Lot, the Owner
shall install a water meter and sprinkler system as designed by the Committee, unless the
construction of a Home is begun within that time, in which case the yard area must be
completed within sixty (60) days of substantial completion of the Home and shall be identical
to the impmrovements proposed by the landcapte architect and approved by the Committee.
6.16. General Maintenance of Lots. Following occupancy of the Home upon any Lot, each
Owner shall, at the sole and exclusive cost and expenses of such Owner, maintain and care for the
Home, all improvements and all trees, foliage, plants, sprinkler systems and lawns on the Lot and
otherwise keep the Lot and all improvements thereon in good condition and repair and in conformity
with the general character and quality of properties in the immediate area, such maintenance and repair
to include but not be limited to: (i) the replacement of worn and/or rotted components, (ii) the regular
painting of all exterior surfaces, (iii) the maintenance, repair and replacement of roots, rain gutters,
downspouts, exterior walls, windows, doors, walks, drives, parking areas and other exterior portions of
the improvements to maintain an attractive appearance, and (iv) regular mowing and edging of lawn
and grass areas. Upon failure of any Owner to maintain a Lot owned by him in the manner prescribed
herein, the Declarant or the Association, or either of them, at its option and discretion, but without any
21
obligation to do so, but only after ten days written notice to such Owner to comply herewith, may enter
upon such Owner's Lot and undertake to maintain and care for such Lot to the condition required
hereunder and the Owner thereof shall be obligated, when presented with an itemized statement, to
reimburse said Declarant and/or Association for the cost of such work within ten days after presentment
of such statement. This provision, however, shall in no manner be construed to create a lien in favor of
any party on any Lot for the cost or charge of such work or the reimbursement for such work. The
Property Owners Association shall be responsible for mowing the fronts of each yard or side yard if
visible to the street. Rear and side yards not visible to the street shall be maintained by the property
owner in accordance with this provision.
6.17. Improvements. All improvements constructed on a Lot shall be built in place on the
Lot and use of prefabricated building, including prefabricated building sections, are prohibited. All
subsequent painting of any improvements located on a Lot shall be approved in writing by the
Committee. Once any work commences on a Home, all work on any home must be completed within
two hundred seventy (270) days from the date construction commences absent the express consent of
the Committee.
6.18. Exterior Lighting. Exterior lighting or illumination of buildings, yards, parking
areas, sidewalks and driveways on a lot shall be designed and installed so as to avoid visible glare
(direct or reflected) on to streets and road right-of-way, and other portions of the Property.
Conventional mercury, vapor, halogen, or other similar types of wide-area security lamps arc
prohibited. Holiday lighting on any residence lot or residence during the calendar month of December
shall be removed from the exterior thereof no later than the 20th of January of the following year.
Furthermore all exterior lighting must be approved by the Architectural Control Committee.
6.19. Perimeter Fence. Any Owner causing damage to the Perimeter Fence shall be
responsible for all repair costs incurred by the Association.
ARTICLE VII
GENERAL PROVISIONS
7.1. Additional Easements.
7.1.1. Utility and Telecommunication Utility Easements. The Declarant
hereby reserves the right to grant perpetual, non-exclusive easements in gross for the
benefit of Declarant or its designees, upon, across, over, through and under any portion
of the Property designated on the plat thereof for easements for the purpose of ingress,
egress, installation, replacement, repair, maintenance, use and operation of any and all
utility and service lines and service systems, public and private, including, without
limitation, telephone, cable, fiber optic and any other cable or wiring system designed
to provide or deliver communication of any form, video or telecommunications,
computer access, "Internet" or e-mail access, security monitoring or other services to
any Owner. The Declarant also reserves the right to grant perpetual, nonexclusive
easements in gross for the benefit of Declarant or its designees across and over any
22
portion of the Property for the purpose of delivering satellite, "broadband", cellular or
other wireless communication designed to provide or deliver communication of any
form, video or telephone communications, computer access, "Internet" or e-mail
access, security monitoring or other services to any Owner. Declarant, for itself and its
designees, reserves the right to retain or transfer title to any and all wires, pipes
conduits, lines, cables, transmission towers or other improvements installed on or in
such easements and to enter into franchise or other agreements with private or public
providers of telecommunication type packages that are designed to provide such
services to the Development.
7.1.2. Continued Maintenance Easement. In the event that the Owner
fails to maintain the Lot as required herein, or in the event of emergency, or in the
event the Association requires entry upon any Lot to repair or maintain any Area
of Common Responsibility, the Association shall have the right, but shall not be
required, to enter upon the Lot to make emergency repairs and to do other work
reasonably necessary for the proper maintenance and operation of the Property.
Entry upon the Lot as provided herein shall not be deemed a trespass, and the
Association shall not be liable for any damage so created unless such damage is
caused by the Association's willful misconduct.
7.1.3. Drainage Easements. Easements for installation and maintenance
of utilities, stormwater retention/detention ponds, and/or a conservation area are
reserved as may be shown on the Plat. Within these easement areas, no structure,
planting or other material shall be placed or permitted to remain which may
damage or interfere with the installation and maintenance of utilities, or which
may hinder or change the direction of flow of drainage channels or slopes in the
easements. The easement area of each Lot and all improvements contained therein
shall be maintained continuously by the Owner of the Lot, except for those
improvements for which a public authority, utility company or the Association is
responsible. Declarant hereby reserves for the benefit of Declarant and any
Builder a blanket easement on, over and under the ground within the Property to
maintain and correct drainage of surface waters and other erosion controls in
order to maintain reasonable standards of health, safety and appearance and shall
be entitled to remove trees or vegetation, without habitat for replacement or
damages, as may be necessary to provide adequate drainage facilities.
Notwithstanding the foregoing, nothing herein shall be interpreted to impose any
duty upon Declarant or any Builder to correct or maintain any drainage facilities
within the Property.
7.1.4. Wall and Landscaping Easement. Any fence constructed by
Declarant pursuant to this Declaration shall be transferred and conveyed to the
Association following completion of the fence construction which shall maintain
said fence at all times in its original condition, with materials matching its original
construction, and shall ensure that the exterior thereof is kept clean and free of all
23
defacing, blemishes, mars, and markings thereon. In the event the Association
shall ever fail to promptly make any needed repair, maintenance or cleaning to the
fence, or shall fait to properly and neatly maintain the vegetation and landscaping
between the fence and right of way. Declarant, its successors and assigns, shall
have the right of entry onto said Lots and right to perform such maintenance at the
expense of the Association.
7.1.5. Zero Lot Line Easements. An eight (8) inch wide Masonry Wall
and Lug Easement is hereby reserved on each side of each Zero Lot Line. There is
also hereby reserved and established a Six foot (6’) Ingress-Egress and
Maintenance Easement on all Lots having a common boundary with the Zero Lot
Line of an adjacent Lot. This easement shall be contiguous with and parallel to
the Zero Lot Line and be for the purpose of maintenance and/or repair of
residences along such Zero Lot Line. All Lots adjacent to Lots with
improvements (including the garage} situated on or within one foot (1’) of the
zero setback line (which is herein provided to allow for errors is the actual
placement of dwellings on the Lots), as permitted by the Plats, Board or
Architectural Control Committee, as applicable, shall be subject to a six foot (6’)
access easement for the construction, repair and maintenance of improvements
located upon any adjacent Lot where said improvements are located on the zero
setback line of such adjacent Lot. The zero setback line Owner must replace
toeing, landscaping or other items on the adjoining Lot that he may disturb as a
result of such construction, repair or maintenance. Additionally, this easement
when used, must be left clean and unobstructed unless the easement is actively
being utilized and any items removed must he replaced. The zero setback line
Owner must notify the Owner of the adjacent Lot of his intent to do any
construction or maintenance upon the zero setback line wall at least twenty-four
(24) hours before any work is started, with the hours that such access casement
may be utilized being restricted to between the hours of 7:00 am to 6:00 pm,
Monday through Friday, and 9:00 a.m. to 6:00 p.m. on Saturdays, (except in the
case of an emergency, in which no notice need be given and maintenance can be
performed at any necessary time).
7.1.6. Universal Easements. The Owner of each Lot (including Declarant
so long as Declarant is the Owner of any Lot) is hereby granted an easement not
to exceed three (3) feet in width over all adjoining Lots for the purpose of
accommodating any encroachment or protrusion due to engineering or fence line
errors, trees, landscaping or retaining walls located along property lines, errors in
original construction, surveying, settlement or shifting of any building, or any
other cause. There shall be easements for the maintenance of said encroachment,
protrusion, settling or shifting; provided, however, that in no event shall an
easement for encroachment or protrusion be created in favor of an Owner or
Owners if said encroachment or protrusion occurred due to willful misconduct of
said Owner or Owners. In addition, the Owner of each Lot is hereby granted an
24
easement for encroachments not to exceed two (2) feet in width by misplaced
fences or fence lines and overhanging roofs, eaves or other improvements as
originally constructed over each adjoining Lot and for the maintenance thereof.
Each of the easements hereinabove referred to shall be deemed to be established
upon the recordation of this Declaration and shall be appurtenant to each affected
Lot and shall pass with each conveyance of said Lot.
7.2. Enforcement. Except as specifically provided herein, the Declarant or the Association, or
any Owner, shall have the right to enforce, by any proceeding at law or in equity, all restrictions,
conditions, covenants, reservations, and charges now or hereafter imposed by the provisions of
this Declaration, the By-Laws and Articles of Incorporation. Failure by the Association or by
any Owner to enforce any covenant or restriction herein contained shall in no event be deemed a
waiver of the right to do so thereafter. With respect to any litigation hereunder, the prevailing
party shall be entitled to recover reasonable attorneys’ fees from the non-prevailing party.
7.3. Severability. If any condition, covenant or restriction herein contained shall be
invalid, which invalidity shall not be presumed until the same is determined by the final
judgment or order of a court of competent jurisdiction, such invalidity shall in no way affect any
other condition, covenant or restriction, each of which shall remain in full force and effect
7.4. Term. The covenants and restrictions of this Declaration shall run with and bind
the Property, and shall inure to the benefit of and be enforceable by Declarant (during the time it
owns any Lots), the Association, or the Owner of any Lot subject to this Declaration, their
respective legal representatives, heirs, successors and assigns, for a term of twenty-five years
from the date this Declaration is recorded, after which time said covenants shall be automatically
extended for successive periods often (10) years, unless by vote, of the then Owners of 67% of
the Lots (and the City, if then a party hereto) agree in writing to terminate or change this
Declaration in whole or in part and such writing is recorded in the Real Property Records of the
County.
7.5. Amendment.
7.5.1. This Declaration may be amended or modified upon the express
written consent of at least sixty-six and two-thirds percent (66 ⅔ %) of the
outstanding votes (determined pursuant to Section 3.2 hereof) held by Members at
a meeting at which a quorum is present. If the proposed amendment involves a
modification of any of the Association's agreements, covenants or restrictions
pertaining to the use, maintenance, operation, and/or supervision of any Areas of
Common Responsibilities, the approval of the City must also be obtained for such
amendment. Any and all amendments, if any, shall be recorded in the office of
the County Clerk of the County. Notwithstanding the foregoing, Declarant shall
have the right to execute and record amendments to this Declaration without the
consent or approval of any other party if the sole purpose of the amendment is for
the purpose of correcting technical errors or for purposes of clarification.
25
7.5.2. Declarant intends that this Declaration may be amended to comply
(if not in compliance) with all requirements of the Federal Home Loan Mortgage
Corporation ("FHLMC"), Federal National Mortgage Association ("FNMA"),
FHA and VA. Notwithstanding anything to the contrary contained herein, if this
Declaration does not comply with FHLMC, FNMA, VA or FHA requirements,
the Board and/or the Declarant shall have the power in its discretion (on behalf of
the Association and each and every Owner) to amend the terms of this
Declaration or to enter into any agreement with FHLMC, FNMA, VA, and FHA,
or their respective designees, reasonably required by FHLMC, FNMA, VA or
FHA to allow this Declaration to comply with such requirements. Should the
FHLMC, FNMA, VA or FHA subsequently delete any of their respective
requirements which necessitate any of the provisions of this Declaration or make
any such requirements less stringent, the Board and/or the Declarant, without
approval of the Owners, may, upon reasonable justification, cause an amendment
to this Declaration to be executed and recorded to reflect such changes.
7.6. Gender and Grammar. The singular wherever used herein shall be construed to
mean the plural when applicable, and the necessary grammatical changes required to make the
provisions hereof apply either to corporations or individuals, men or women, in all cases shall be
assumed as though fully expressed in each case.
7.7. Remedies. Enforcement of these covenants and restrictions shall be by any
proceeding at law or in equity, including, without limitation, an action for injunctive relief, it
being acknowledged and agreed that a violation of the covenants, conditions and restrictions
contained herein could cause irreparable injury to Declarant and/or the other Owners and that the
Declarant's and/or the other Owner's remedies at law for any breach of the Owners' obligations
contained herein would be inadequate. Enforcement may be commenced by the Association, the
Declarant, the City, or any Owner against any person or persons violating or attempting to
violate them, and failure by the Association, the Declarant or any Owner to enforce any covenant
or restriction herein contained shall in no event be deemed a waiver of the right to do so
thereafter. The rights created herein are unique and enforceable by specific performance. In
addition to the remedies set forth herein, the Association will also have the right and power to
levy fines against any Owner in breach of their obligations set forth in this Declaration.
7.8. Notices to Member/Owner. Any notice required to be given to any Member
and/or Owner under the provisions of this Declaration shall be deemed to have been properly
delivered forty-eight (48) hours after deposit in the United States Mail, postage prepaid, certified
or registered mail, and addressed to the last known address of the person who appears as
Member or Owner on the records of the Association at the time of such mailing.
7.9. Headings. The headings contained in this Declaration are for reference purposes
only and shall not in any way affect the meaning or interpretation of tins Declaration. Words of any
gender used herein shall be held and construed to include any other gender, and words in the singular
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shall be held to include the plural and vice versa unless the context requires otherwise.
7.10. Formation of Association: Inspection of Documents. Books and Records. The
Association shall be formed by Declarant as a non-profit corporation in accordance with the laws of the
State of Arkansas. Management and governance of the Association shall be implemented and/or
undertaken in accordance with the Articles of Incorporation, in accordance with this Declaration, and in
accordance with the Bylaws which shall be adopted by the Association following its formation. The
Association shall make available copies of the Declaration, Bylaws, Articles of Incorporation, rules and
regulations governing the Association as well as the books, records and financial statements of the
Association for inspection by Owners or any Mortgagee during regular business hours or other
reasonable times.
7.11. Indemnity. The Association shall indemnify, defend and hold harmless the
Declarant, the Board, the Committee and each director, officer, employee and agent of the
Declarant, the Board and the Committee from all judgments, penalties (including excise and
similar taxes), fines, settlements and reasonable expenses (including attorneys' fees) incurred by
such indemnified person under or in connection with this Declaration or the Property to the
fullest extent permitted by applicable law. Such indemnity shall include matters arising as a
result of the sole or concurrent negligence of the indemnified party, to the extent permitted by
applicable law.
7.12. Binding Effect. Each of the conditions, covenants, restrictions and
agreements herein contained is made for the mutual benefit of and is binding upon, each and
every person acquiring any part of the Property, it being understood that such conditions,
covenants, restrictions and agreements are not for the benefit of the owner of any land except
land in the Development. This Declaration, when executed, shall be filed of record in the Real
Property Records of the County so that each and every owner or purchaser of any portion of the
Development is on notice of the conditions, covenants, restrictions and agreements herein
contained.
7.13. Recorded Plat: Other Authorities. All dedications, limitations, restrictions and
reservations that are shown on the Plats are deemed to be incorporated herein and shall be
construed as being adopted in each contract, deed or conveyance executed or to be executed by
the Declarant, conveying the Lots, whether specifically referred to therein or not. If other
authorities, such as the City or the County, impose more demanding, expensive, extensive or
restrictive requirements than those that are set forth herein (through zoning or otherwise), the
requirements of such authorities shall be complied with. Other authorities' imposition of lesser
requirements than those that are set forth herein shall not supersede or diminish the requirements
that are set forth herein.
7.14. Additions to the Development. Subject to this Declaration in any of the
following manners:
7.14.1. The Declarant may add or annex additional real property to the
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scheme of this Declaration by filing of record a Supplementary Declaration of
Covenants, Conditions and Restrictions which shall extend the scheme of this
Declaration to such property, provided, however, that such Supplementary
Declaration may contain such complementary additions and modifications of the
covenants, conditions and restrictions contained in this Declaration as may be
necessary to reflect the different character, if any, of the added properties and as
are not inconsistent with this Declaration. To the extent of any such addition, all
Owners in any subsequent phase or addition to the Development adjoining the
hereinabove described lands or adjoining the hereinabove described lands shall
become members of the Association and shall be subject to all duties,
responsibilities and Assessments in accordance with such membership and shall
be entitled to all privileges, rights and enjoyment of Areas of Common
Responsibility of all other members of the Association.
7.15. No Warranty of Enforceability. While the Declarant has no reason to believe
that any of the restrictive covenants or other terms or provisions contained in this Declaration are
or may be invalid or unenforceable for any reason or to any extent, Declarant makes no warranty
or representation as to the present or future validity or enforceability of any such restrictive
covenants. Any Owner acquiring a Lot in the Development in reliance on one or more of such
restrictive covenants, terms or provisions shall assume all risks of the validity and enforceability
thereof and, by acquiring the Lot, agrees to hold Declarant and the Committee harmless
therefrom. The Declarant shall not be responsible for the acts or omissions of any individual,
entity or other Owners.
7.16. Right of Enforcement. The failure by Declarant or the Committee to enforce any
provision of this Declaration shall in no event subject Declarant or the Committee to any claims,
liability, costs or expense; it being the express intent of this Declaration to provide Declarant
with the right (such right to be exercised at its sole and absolute discretion), but not the
obligation to enforce the terms of this Declaration for the benefit of any Owner(s) of any Lot(s)
in the Development. The Association or any Owner, except as otherwise provided herein, shall
have the right to enforce by any proceeding at law or in equity, all restrictions, conditions,
covenants, reservations, liens and charges now or hereafter imposed by this Declaration. The
failure by the Association or any Owner to enforce any covenant or restriction herein shall, in no
event, be deemed a waiver of the right to do so thereafter.
7.17. Notices. Any notice require or permitted to be given to any Owner
hereunder shall be deemed to be given when mailed, postage prepaid, to the last known address
of the Owner or to the Lot owned by any such Owner.
7.18. Attorney’s Fees. In any proceeding initiated by Declarant, the Committee or
the Association to enforce any provision of this Declaration, in addition to all other relief, the
Declarant, the Committee and the Association shall recover its attorney’s fees and all costs and
expenses of litigation.
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7.19. EPA Compliance. The Owner of each Lot agrees to comply with all EPA
rules and regulations regarding erosion control and compliance with a Storm Water Pollution
Prevention Plan affecting the Lots (the "Plan") which will include elements necessary for
compliance with the nationwide general permit for construction activities administered by the
EPA under the National Pollutant Discharge Elimination System. Each Owner acknowledges
that the Declarant and any homebuilder will not bear any responsibility for complying with a
Plan on any Lot upon the sale of such Lot.
7.20. Disclosures. In order to preserve property values in the Development, it is in
every Owner's best interest to be fully aware of any and all adjacent land uses, objectionable land
uses or nuisances, or prior land uses that might impact someone's decision to live in the
Development. Accordingly, the Declarant has the right at any time to file an instrument of record
in the County that will reference this Declaration and will serve the purpose of putting all
existing, potential, and future Owners of any Lot on actual notice of any such land use(s) or
nuisance(s).
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IN WITNESS WHEREOF, the undersigned, being the Declarant herein, has hereto set its
hand this __________ day of __________________, 2021.
Wiggins Family Real Estate Holdings, LLC
By: ______________________________
Blake Wiggins, President
ACKNOWLEDGMENT
State of Arkansas
County of _____________
Before me, the undersigned official, appeared this day Blake Wiggins who acknowledged
themselves to be the president of Wiggins Family Real Estate Holdings, LLC, an Arkansas
limited liability company who, being authorized so to do, acknowledged that they had executed
the foregoing instrument for the purposes and consideration therein contained.
Subscribed and sworn before me this __________ day of _____________, 2021
______________________________
Notary Public
My Commission Expires:
________________________
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Exhibit A
[Real Property Description]
Exhibit [B]
[Approved Builders]
Approved Builders:
1.
2.
3.