HomeMy WebLinkAboutBill of Assurance 091924�I�II��III��I�II��II��I�III I�IIIIIII III 2024038585
07 30 2024 02:16:34 PM RECORDED: 07-30-2024 02:25:28 PM
In Official Records of Terri Hollingsworth CircuiVCounty Clerk
AFTER RECORDING RETURN TO:
ROBERT D. BURTON PULASKI CO, AR FEE $355.00
WINSTEAD PC
401 CONGRESS AVE., SUITE 2100
AUSTIN, TEXAS 78701 ``0�'`�"�y�"�������,��
EMAIL: RBURTONC WINSTEAD.COM
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DECLARATION OF COVENANTS, CONDITIONS AND
RESTRICTIONS
SHILOH GROVE
[PULASKI COUNTY, ARKANSAS]
Declarant: D.R. HORTON - NW ARKANSAS, LLC, an Arkansas limited liability company
This Declaration of Covenants, Conditions and Restrictions may be used only in connection with the
residential community known as Shiloh Grove in Pulaski County, Arkansas and the operation of Shiloh
Grove Homeowners Association, Inc.
4889-7407-9130v.3 52919-618
DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS
SHILOH GROVE
TABLE OF CONTENTS
Page
ARTICLE1 DEFINITIONS.....................................................................................................................1
ARTICLE 2 GENERAL AND USE RESTRICTIONS.........................................................................6
2.01
General.................................................................................................................6
2.02
Conceptual Plans................................................................................................6
2.03
Single -Family Residential Use..........................................................................7
2.04
Subdividing.........................................................................................................8
2.05
Hazardous Activities..........................................................................................8
2.06
Insurance Rates...................................................................................................8
2.07
Mining and Drilling............................................................................................8
2.08
Noise..................................................................................................................... 9
2.09
Animals - Household Pets................................................................................
9
2.10
Rubbish and Debris............................................................................................
9
2.11
Maintenance.........................................................................................................9
2.12
Association's Maintenance Right....................................................................10
2.13
Street Landscape Area -Owner's Obligation to Maintain
Landscaping.......'...............................................................................................11
2.14
Antennas............................................................................................................11
2.15
Location of Permitted Antennas.....................................................................11
2.16
Signs....................................................................................................................12
2.17
Tanks...................................................................................................................13
2.18
Temporary Structures......................................................................................13
2.19
Outside Storage Buildings...............................................................................13
2.20
Unsightly Articles.............................................................................................13
2.21
Mobile Homes, Travel Trailers and Recreational Vehicles .........................14
2.22
Basketball Goals; Permanent and Portable...................................................14
2.23
Compliance with Restrictions.........................................................................14
2.24
Liability of Owners for Damage to Common Area......................................15
2.25
No Warranty of Enforceability........................................................................15
2.26
Party Wall Fences and Walls...........................................................................15
2.27
Playscapes and Sports Courts.........................................................................17
2.28
Decorations and Lighting................................................................................17
2.29
Exterior Window Air Conditioning Units.....................................................17
2.30
Window Treatments.........................................................................................17
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SHILOH GROVE
DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS
4889-7407-9130v.3 52919-618
Table of Contents
(Continued)
P.q e
ARTICLE 3 CONSTRUCTION RESTRICTIONS............................................................................17
3.01
Approval for Construction..............................................................................17
3.02
Rentals................................................................................................................17
3.03
Garages...............................................................................................................18
3.04
Fences; Sidewalks..............................................................................................18
3.05
Trash Containers...............................................................................................18
3.06
Drainage.............................................................................................................18
3.07
Construction Activities....................................................................................19
3.08
Swimming Pools...............................................................................................19
3.09
Compliance with Setbacks and Easements...................................................19
3.10
Water Quality Facilities, Drainage Facilities and Drainage Ponds ............
19
3.11
Parking...............................................................................................................19
ARTICLE 4 SHILOH GROVE HOMEOWNERS ASSOCIATION, INC.....................................20
4.01
Organization......................................................................................................
20
4.02
Membership.......................................................................................................20
4.03
Governance........................................................................................................
21
4.04
Voting Rights.....................................................................................................21
4.05
Powers................................................................................................................
22
4.06
Conveyance of Common Area........................................................................
25
4.07
Indemnification.................................................................................................26
4.08
Insurance............................................................................................................
26
4.09
Bulk Rate Contracts..........................................................................................
26
4.10
Protection of Declarant's Interests..................................................................27
4.11
Administration of Common Area..................................................................27
4.12
Right of Action by Association.......................................................................27
4.13
Merger................................................................................................................
28
ARTICLE 5 INSURANCE......................................................................................................................28
5.01 Insurance............................................................................................................ 28
5.02 Restoration......................................................................................................... 28
5.03 Mechanic's and Materialmen's Lien...............................................................29
ARTICLE 6 COVENANT FOR ASSESSMENTS..............................................................................29
6 01 Assessments ?A
.
6.02
....................................
Maintenance Fund .........................
6.03
Regular Assessments .....................
6.04
Special Assessments ......................
6.05
Individual Assessments ................
6.06
Working Capital Assessment.......
ii
4889-7407-9130v.3 52919-618
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30
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30
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30
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31
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31
SHILOH GROVE
DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS
Table of Contents
(Continued)
Page
6.07
Amount of Assessment....................................................................................
31
6.08
Late Charges......................................................................................................32
6.09
Owner's Personal Obligation; Interest...........................................................32
6.10
Assessment Lien and Foreclosure..................................................................32
6.11
Exempt Property...............................................................................................
34
6.12
Fines and Damages Assessment.....................................................................34
ARTICLE 7 ARCHITECTURAL CONTROL COMMITTEE..........................................................35
7.01 Construction of Improvements.......................................................................35
7.02 Architectural Control Committee...................................................................35
ARTICLE 8 MORTGAGE PROVISIONS..........................................................................................38
8.01 Notice of Action................................................................................................ 38
8.02 Examination of Books.......................................................................................39
8.03 Taxes, Assessments and Charges...................................................................39
ARTICLE 9 GENERAL PROVISIONS...............................................................................................39
9.01
Term....................................................................................................................39
9.02
Eminent Domain...............................................................................................
39
9.03
Amendment.......................................................................................................40
9.04
Roadway and Utility Easements.....................................................................40
9.05
Enforcement.......................................................................................................40
9.06
Higher Authority..............................................................................................40
9.07
Severability........................................................................................................40
9.08
Conflicts..............................................................................................................41
9.09
Gender................................................................................................................
41
9.10
No Warranty of Enforceability........................................................................41
9.11
Acceptance by Owners.....................................................................................41
9.12
Damage and Destruction.................................................................................41
9.13
No Partition.......................................................................................................42
9.14
Notices................................................................................................................
42
9.15
View Impairment..............................................................................................43
9.16
Safety and Security...........................................................................................43
9.17
Notice Concerning Mineral Reservation.......................................................43
ARTICLE10 EASEMENTS...................................................................................................................44
10.01 Right of Ingress and Egress............................................................................. 44
10.02 Reserved Easements......................................................................................... 45
10.03 Utility Easements..............................................................................................45
10.04 Subdivision Entry and Fencing Easement.....................................................45
SHILOH GROVE
DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS
4889-7407-9"130v.3 52919-618
Table of Contents
(Continued)
Page
10.05 Landscape and Monument Sign Easement...................................................45
10.06 Declarant as Attorney in Fact..........................................................................46
10.07 Easement to Inspect and Right to Correct.....................................................46
ARTICLE 11 DEVELOPMENT RIGHTS............................................................................................47
11.01
Development by Declarant..............................................................................
47
11.02
Special Declarant Rights..................................................................................47
11.03
Addition of Land...............................................................................................47
11.04
Withdrawal of Land.........................................................................................48
11.05
Notice of Plat Recordation...............................................................................48
11.06
Assignment of Declarant's Rights..................................................................
48
ARTICLE 12 DISPUTE RESOLUTION..............................................................................................48
12.01
Introduction and Definitions...........................................................................49
12.02
Mandatory Procedures.....................................................................................50
12.03
Claim Affecting Common Areas....................................................................50
12.04
Claim by Lot Owners — Improvements on Lots ...........................................
54
12.05
Notice..................................................................................................................56
12.06
Negotiation........................................................................................................
57
12.07
Mediation...........................................................................................................
57
12.08
Binding Arbitration-Claims.............................................................................57
12.09
Allocation of Costs............................................................................................59
12.10
General Provisions............................................................................................59
12.11
Period of Limitation..........................................................................................59
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SHILOH GROVE
DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS
4889-7407-9130v.3 52919-618
DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS
SHILOH GROVE
This Declaration of Covenants, Conditions and Restrictions for Shiloh Grove (the
"Declaration") is made by D.R. HORTON - NW ARKANSAS, LLC, an Arkansas limited
liability company (the "Declarant"), and is as follows:
RECITALS:
A. This Declaration is filed with respect to that certain real property in Pulaski
County, Arkansas, as more particularly described on Exhibit "A" attached hereto and
incorporated herein for all purposes (the "Property").
B. Declarant desires to create and carry out a uniform plan for the development,
improvement, and sale of the Property.
C. E-STEPS INVESTORS, LLC, an Arkansas limited liability company ("E-STEPS")
is the owner of the Property. E-STEPS executes this Declaration to evidence its consent to
subject the Property to the terms and provisions of this Declaration.
D. By the Recording of this Declaration, Declarant serves notice that the Property is
subject to the terms and provisions of this Declaration.
NOW, THEREFORE, it is hereby declared: (i) that the Property (or any portion thereof)
will be held sold, conveyed, and occupied subject to the following covenants, conditions and
restrictions which will run with such portions of the Property and will be binding upon all
parties having right, title, or interest in or to such portions of the Property or any part thereof,
their heirs, successors, and assigns and will inure to the benefit of each owner thereof; and
(ii) that each contract or deed conveying the Property (or any portion thereof) will conclusively
be held to have been executed, delivered, and accepted subject to the following covenants,
conditions and restrictions, regardless of whether or not the same are set out in full or by
reference in said contract or deed.
This Declaration uses notes (text set apart in boxes) to illustrate concepts and assist the
reader. If there is a conflict between any note and the text of this Declaration, the text will
control.
ARTICLE 1
DEFINITIONS
Unless the context otherwise specifies or requires, the following words and phrases
when used in this Declaration will have the meanings hereinafter specified:
SHILOH GROVE
DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS
4889-7407-9130v.3 52919-618
"Applicable Law" means all statutes, public laws, ordinances, policies, rules,
regulations and orders of all federal, state, county and municipal governments or their agencies
having jurisdiction and control over the Property in effect at the time a provision of the
Restrictions is applied, and pertaining to the subject matter of the Restriction provision, and all
other ordinances and any other applicable building codes, zoning restrictions and permits or
other applicable regulations. Statutes, ordinances and regulations specifically referenced in the
Restrictions are "Applicable Law" on the date of the Restrictions, and are not intended to apply
to the Property if they cease to be applicable by operation of law, or if they are replaced or
superseded by one or more other statutes or ordinances.
"Architectural Control Committee" or "ACC" means the committee created pursuant to
this Declaration to review and approve or deny plans for the construction, placement,
modification, alteration or remodeling of any Improvements on a Lot. As provided in Article 7
below, the Declarant acts as the ACC and the ACC is not a committee of the Association until
the Declarant has assigned its right to appoint and remove all ACC members to the Association
in a Recorded written instrument.
"Articles" means the Articles of Incorporation of the Association, filed in the Office of
the Secretary of State of Arkansas, as the same may be amended from time to time.
"Assessment" or "Assessments" means assessments imposed by the Association under
this Declaration.
"Assessment Unit" has the meaning set forth in Section 6.07(b).
"Association" means SHILOH GROVE HOMEOWNERS ASSOCIATION, INC., an
Arkansas nonprofit corporation, which will be created by the Declarant to exercise the authority
and assume the powers specified in Article 4 and elsewhere in this Declaration. The failure of
the Association to maintain its corporate charter from time to time does not affect the existence
or legitimacy of the Association, which derives its authority from this Declaration, the Articles,
the Bylaws, and Applicable Law.
"Board" means the Board of Directors of the Association.
"Bulk Rate Contract" or "Bulk Rate Contracts" means one or more contracts which are
entered into by the Association for the provision of utility services or other services of any kind
or nature to the Lots. The services provided under Bulk Rate Contracts may include, without
limitation, cable television services, telecommunications services, internet access services,
"broadband" services, security services, trash pick-up services, propane service, natural gas
service, lawn maintenance services, wastewater services, and any other services of any kind or
nature which are considered by the Board to be beneficial to all or a portion of the Property.
Each Bulk Rate Contract must be approved in advance and in writing by the Declarant until
expiration or termination of the Development Period.
"Bylaws„ means the Bylaws of the Association.
SHILOH GROVE
DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS
4889-7407-9130v.3 52919-618
"Common Area" means any property and facilities that the Association owns or in
which it otherwise holds rights or obligations, including any property or facilities held by the
Declarant for the benefit of the Association or its Members. Common Area also includes any
property that the Association holds under a lease, license, or any easement in favor of the
Association. Some Common Area will be solely for the common use and enjoyment of the
Owners, while other portions of the Common Area may be for the use and enjoyment of the
Owners and members of the public.
"Community Manual" means the community manual, which may be initially adopted
and recorded by the Declarant as part of the initial project documentation for the benefit of the
Association and the Property. The Community Manual may include the Bylaws, Rules and
Regulations and other policies governing the Association. The Community Manual may be
amended or supplemented, from time to time, by the Declarant during the Development
Period. Any amendment to the Bylaws, Rules and Regulations and other policies governing the
Association prosecuted by the Board must be approved in advance and in writing by the
Declarant until expiration or termination of the Development Period. Upon expiration or
termination of the Development Period, the Community Manual may be amended by a
Majority of the Board.
"Community Systems" means any and all cable television, telecommunications,
alarm/monitoring, internet, telephone or other lines, conduits, wires, amplifiers, towers,
antennas, satellite dishes, equipment, materials and installations and fixtures (including those
based on, containing and serving future technological advances not now known), if installed by
Declarant pursuant to any grant of easement or authority by Declarant within the Property.
"Declarant" means D.R. HORTON - NW ARKANSAS, LLC, an Arkansas limited
liability company, its successors or assigns; provided that any assignment(s) of the rights of
D.R. HORTON - NW ARKANSAS, LLC, an Arkansas limited liability company, as Declarant,
must be expressly set forth in writing and Recorded.
Declarant enjoys special rights and privileges to help protect its investment in the
Property. These special rights are described in this Declaration. Many of these rights
do not terminate until either Declarant: 0) has conveyed all Lots which may be
created out of the Property; or (ii) voluntarily terminates these rights by a Recorded
written instrument.
"Design Guidelines" means the standards for design, construction, landscaping, and
exterior items proposed to be placed on any Lot adopted pursuant to Section 7.02(c), as the same
may be amended from time to time. The Design Guidelines may consist of multiple written
design guidelines applying to specific portions of the Property. At Declarant's option, Declarant
may adopt or amend from time to time the Design Guidelines for the Property or any portion
thereof. Notwithstanding anything in this Declaration to the contrary, Declarant will have no
obligation to establish Design Guidelines for the Property or any portion thereof.
SHILOH GROVE
DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS
4889-7407-9130v.3 52919-618
"Development Period" means the period of time beginning on the date when this
Declaration has been Recorded, and ending eighteen (18) months after Declarant, E-STEPS and
any Homebuilder no longer owns any portion of the Property, unless earlier terminated by a
Recorded written instrument executed by the Declarant. The Development Period is the period
in which Declarant reserves the right to facilitate the development, construction, and marketing
of the Property, and the right to direct the size, shape and composition of the Property.
"Homebuilder" means an Owner (other than the Declarant) who acquires a Lot for the
construction of a single family residence for resale to a third party.
"Improvement" means all physical enhancements and alterations to the Property,
including but not limited to grading, clearing, removal of trees, alteration of drainage flow, and
site work, and every structure and all appurtenances of every type and kind, whether
temporary or permanent in nature, including, but not limited to, buildings, outbuildings,
storage sheds, patios, tennis courts, sport courts, recreational facilities, swimming pools, putting
greens, garages, driveways, parking areas and/or facilities, storage buildings, sidewalks, fences,
gates, screening walls, retaining walls, stairs, patios, decks, walkways, landscaping, mailboxes,
poles, signs, antennas, exterior air conditioning equipment or fixtures, exterior lighting fixtures,
water softener fixtures or equipment, and poles, pumps, wells, tanks, reservoirs, pipes, lines,
meters, antennas, towers and other facilities used in connection with water, sewer, gas, electric,
telephone, regular or cable television, or other utilities.
"Lot" means any portion of the Property designated by Declarant or as shown as a
subdivided Lot on a Plat other than Common Area.
"Majority" means more than half.
"Manager" has the meaning set forth in Section 4.05(h).
"Members" means every person or entity that holds membership privileges in the
Association.
"Mortgage" or "Mortgages" means any mortgage(s) or deed(s) of trust securing
indebtedness and covering any Lot.
"Mortgagee" or "Mortgagees" means the holder(s) of any Mortgage(s).
"Owner" means the person(s), entity or entities, including Declarant, holding all or a
portion of the fee simple interest in any Lot, but does not include the Mortgagee tinder a
Mortgage prior to its acquisition of fee simple interest in such Lot pursuant to foreclosure of the
lien of its Mortgage.
"Plat" means a Recorded subdivision plat of any portion of the Property, and any
amendments thereto.
SHILOH GROVE
DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS
4889-7407-9130v.3 52919-618
"Property" means that certain real property in Pulaski County, Arkansas, as more
particularly described on Exhibit "A" attached hereto and incorporated herein by reference,
subject to such additions thereto and deletions therefrom as may be made pursuant to Section
11.03 and Section 11.04 of this Declaration.
"Record, Recording, Recordation and Recorded" means recorded or to be recorded in
the Official Public Records of Pulaski County, Arkansas.
"Resident" means an occupant or tenant of a Lot, regardless of whether the person
owns the Lot.
"Restrictions" means the restrictions, covenants, and conditions contained in this
Declaration, the Design Guidelines, Bylaws, Community Manual, Rules and Regulations, or in
any other rules and regulations promulgated by the Association pursuant to this Declaration, as
adopted and amended from time to time. See Table 1 for a summary of the Restrictions.
"Rules and Regulations" means any instrument, however denominated, which may be
adopted by the Declarant as part of the Community Manual or subsequently adopted by the
Board for the regulation and management of the Property or the Common Area, including any
amendments to those instruments. Until expiration or termination of the Development Period,
the Declarant may unilaterally amend the Rules and Regulations and must approve any
amendment to the Rules and Regulations adopted by the Board.
TABLE 1: RESTRICTIONS
Declaration (Recorded)
Creates obligations that are binding upon the Association
and all present and future owners of Property.
Articles of Incorporation (Recorded)
Establishes the Association as an Arkansas nonprofit
cor oration.
Bylaws (Recorded)
Governs the Association's internal affairs, such as elections,
meetin s, etc.
Community Manual (Recorded)
Establishes Rules and Regulations and policies governing
the Association.
Design Guidelines (if adopted,
Governs the design and architectural standards for the
Recorded)
constriction of Improvements and modifications thereto.
The Declarant shall have no obligation to adopt the Design
Guidelines.
Rules and Regulations (if adopted,
Regulates the use of property, activities, and conduct within
Recorded)
the Property or the Common Area.
Board Resolutions (adopted by the Board
Establishes rules, policies, and procedures for the Property,
of the Association)
Owners and Association.
Notice of Withdrawal of Land
Withdraws and removes land from the Property so that such
(Recorded)
land is no longer burdened by the terms of this Declaration
and no longer under the jurisdiction of the Association.
Notice of Addition of Land (Recorded)
Adds additional land to the Property, so such land will be
SHILOH GROVE
DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS
4889-7407-9130v.3 52919-618
considered part of the Property and subject to the terms of
this Declaration and under the jurisdiction of the
Association.
ARTICLE 2
GENERAL AND USE RESTRICTIONS
All of the Property shall be owned, held, encumbered, leased, used, occupied, and
enjoyed subject to the following limitations and restrictions:
2.01 General.
(a) Conditions and Restrictions. All Lots within the Property will be owned,
held, encumbered, leased, used, occupied and enjoyed subject to the Restrictions.
(b) Ordinances. Ordinances and requirements imposed by local
governmental authorities are applicable to all Lots within the Property. The Association,
each Owner, Resident, or other user of any portion of the Property must comply with
the Restrictions and Applicable Law, as supplemented, modified or amended from time
to time. Compliance with the Restrictions is not a substitute for compliance with
Applicable Law. Please be advised that the Restrictions do not purport to list or
describe each restriction which may be applicable to a Lot located within the Property.
Each Owner is advised to review all ordinances, requirements, regulations and
encumbrances affecting the use and improvement of their Lot prior to submitting plans
to the ACC for approval. Furthermore, approval by the ACC should not be construed
by the Owner that any Improvement complies with the terms and provisions of any
ordinances, requirements, regulations or encumbrances which may affect the Owner's
Lot. Certain encumbrances may benefit parties whose interests are not addressed by the
ACC.
NOTICE
The Restrictions are subject to change from time to time. By owning or occupying a
Lot, you agree to remain in compliance with the Restrictions, as they may change
from time to time.
2.02 Conceptual Plans. All master plans, site plans, brochures, illustrations,
information and marketing materials relating to the Property or the Common Area (collectively,
the "Conceptual Plans") are conceptual in nature and are intended to be used for illustrative
purposes only. The land uses and Improvements, including but not limited to any amenity
centers, reflected on the Conceptual Plans are subject to change at any time and from time to
time, and it is expressly agreed and understood that land uses within the Property or the
Common Area may include uses which are not shown on the Conceptual Plans. Neither
Declarant nor any Homebuilder or other developer of any portion of the Property or the
Common Area makes any representation or warranty concerning such land uses and
Improvements shown on the Conceptual Plans or otherwise planned for the Property or the
SHILOH GROVE
DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS
4889-7407-9130v.3 52919-618
Common Area and it is expressly agreed and understood that no Owner will be entitled to rely
upon the Conceptual Plans or any statements made by the Declarant or any of Declarant's
representatives regarding the proposed land uses, or proposed or planned Improvements in
making the decision to purchase any land or Improvements within the Property. Each Owner
who acquires a Lot within the Property acknowledges that development of the Property and/or
the Common Area will likely extend over many years, and agrees that the Association will not
engage in, or use Association funds to support, protest, challenge, or make any other form of
objection to development of the Property or the Common Area or changes in the Conceptual
Plans as they may be amended or modified from time to time.
2.03 Single -Family Residential Use . The Lots shall be used solely for private single
family residential purposes.
No professional, business, or commercial activity to which the general public is invited
shall be conducted on any Lot, except an Owner or Resident may conduct business activities
within a residence so long as: (i) such activity complies with all Applicable Law; (ii) the
business activity is conducted without the employment of persons other than the residents of
the home constructed in the Lot; (iii) the business activity does not involve customers,
contractors, clients, or the general public visiting the residence to conduct activities related to
the business; (iv) the existence or operation of the business activity is not apparent or detectable
by sight, i.e., no sign may be erected advertising the business on any Lot, sound, or smell from
outside the residence; (v) the business activity does not involve door-to-door solicitation of
residents within the Property; (vi) the business does not, in the Board's judgment, generate a
level of vehicular or pedestrian traffic or a number of vehicles parked within the Property
which is noticeably greater than that which is typical of residences in which no business activity
is being conducted; (vii) the business activity is consistent with the residential character of the
Property and does not constitute a nuisance, or a hazardous or offensive use, or threaten the
security or safety of other residents of the Property as may be determined in the sole discretion
of the Board; and (viii) the business does not require the installation of any machinery other
than that customary to normal household operations. In addition, for the purpose of obtaining
any business or commercial license, neither the residence nor Lot will be considered open to the
public. The terms "business" and "trade", as used in this provision, shall be construed to have
their ordinary, generally accepted meanings and shall include, without limitation, any
occupation, work, or activity undertaken on an ongoing basis which involves the provision of
goods or services to persons other than the provider's family and for which the provider
receives a fee, compensation, or other form of consideration, regardless of whether: (a) such
activity is engaged in full or part-time; (b) such activity is intended to or does generate a profit;
or (c) a license is required.
Leasing of a residence shall not be considered a business or trade within the meaning of
this subsection. This subsection shall not apply to any activity conducted by the Declarant or a
Homebuilder.
SHILOH GROVE
DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS
4889-7407-9130v.3 52919-618
Notwithstanding any provision in this Declaration to the contrary, until the expiration
or termination of the Development Period:
(a) Declarant and/or its licensees may construct and maintain upon portions
of the Common Area, any Lot, or portion of the Property owned by the Declarant, such
facilities and may conduct such activities, which, in Declarant's sole opinion, may be
reasonably required, convenient, or incidental to the construction or sale of single family
residences constructed upon the Lots, including, but not limited to, business offices,
signs, model homes, and sales offices. Declarant and/or its licensees shall have an
easement over and across the Common Area for access and use of such facilities at no
charge; and
(b) Declarant and/or its licensees will have an access easement over and
across the Common Area for the purpose of making, constructing and installing
Improvements upon the Common Area.
2.04 Subdividing. No Lot shall be further divided or subdivided, nor may any
easements or other interests therein less than the whole be conveyed by the Owner thereof
without the prior written approval of the ACC; provided, however, that when Declarant is the
Owner thereof, Declarant may further divide and subdivide any Lot and convey any easements
or other interests less than the whole, all without the approval of the ACC
2.05 Hazardous Activities. No activities may be conducted on or within the Property
and no Improvements may be constructed on or within any portion of the Property which, in
the opinion of the Board, are or might be unsafe or hazardous to any person or property.
Without limiting the generality of the foregoing, no firearms or fireworks may be discharged
upon any portion of the Property unless discharged in conjunction with an event approved in
advance by the Board and no open fires may be lighted or permitted except within safe and
well -designed fireplaces or in contained barbecue units while attended and in use for cooking
purposes. No portion of the Property may be used for the takeoff, storage, or landing of aircraft
(including, without limitation, helicopters) except for medical emergencies.
2.06 Insurance Rates. Nothing shall be done or kept on the Property which would
increase the rate of casualty or liability insurance or cause the cancellation of any such insurance
on the Common Area, or the Improvements located thereon, without the prior written approval
of the Board.
2.07 Mining and Drilling. Unless otherwise provided in Section 9.17, no portion of
the Property may be used for the purpose of mining, quarrying, drilling, boring, or exploring
for or removing oil, gas, or other hydrocarbons, minerals of any kind, rocks, stones, sand,
gravel, aggregate, or earth. This provision will not be construed to prevent the excavation of
rocks, stones, sand, gravel, aggregate, or earth or the storage of such material for use as fill
provided that such activities are conducted in conjunction with the constriction of
Improvements and/or the development of the Property by the Declarant. Furthermore, this
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provision will not be interpreted to prevent the drilling of water wells by the Declarant or
otherwise approved in advance by the ACC which are required to provide water to all or any
portion of the Property. All water wells must also be approved in advance by any applicable
regulatory authority.
2.08 Noise. No noise or other nuisance shall be permitted to exist or operate upon
any portion of the Property so as to be offensive or detrimental to any other portion of the
Property or to its Residents.
2.09 Animals — Household Pets. No animals, including pigs, hogs, swine, poultry,
fowl, wild animals, horses, cattle, sheep, goats, or any other type of animal not considered to be
a domestic household pet within the ordinary meaning and interpretation of such words may
be kept, maintained, or cared for on or within the Property (as used in this paragraph, the term
"domestic household pet" shall not mean or include non-traditional pets such pot-bellied pigs,
miniature horses, exotic snakes or lizards, monkeys, chickens or other exotic animals). The
Board may determine, in its sole discretion, whether a particular pet is a domestic household
pet within the ordinary meaning and interpretation of such words. No Owner may keep on
such Owner's Lot more than three (3) cats and dogs, in the aggregate. No animal may be
allowed to make an unreasonable amount of noise, or to become a nuisance, and no domestic
pets will be allowed on the Property other than within the Owner's residence, or the fenced
yard space associated therewith, unless confined to a leash. The Association may restrict pets to
certain areas on the Property. No animal may be stabled, maintained, kept, cared for, or
boarded for hire or remuneration on the Property, and no kennels or breeding operation will be
allowed. No animal may be allowed to run at large, and all animals must be kept within
enclosed areas which must be clean, sanitary, and reasonably free of refuse, insects, and waste
at all times. No pet may be left unattended on porches, in unfenced portions of yards, or other
unfenced outside area. All pet waste will be removed and appropriately disposed of by the
owner of the pet. All pets must be registered, licensed and inoculated as required by Applicable
Law. If the Board determines, in its sole discretion, that a pet becomes a source of unreasonable
annoyance to others, or the owner of the pet fails or refuses to comply with these restrictions,
the Owner, upon written notice, may be required to remove the pet from the Property.
2.10 Rubbish and Debris. As determined by the Board, no rubbish or debris of any
kind may be placed or permitted to accumulate on or within the Property, and no odors will be
permitted to arise therefrom so as to render all or any portion of the Property unsanitary,
unsightly, offensive, or detrimental to any other property or Residents. Refuse, garbage, and
trash must be kept at all times in covered containers, and such containers must be kept within
enclosed structures or appropriately screened from view. Each Owner will contract with an
independent disposal service to collect all garbage or other wastes, if such service is not
provided by a governmental entity or the Association.
2.11 Maintenance.. The Owners of each Lot shall jointly and severally have the duty
and responsibility, at their sole cost and expense, to keep their Lot and all Improvements
thereon in good condition and repair and in a well -maintained, safe, clean and attractive
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condition at all times. The Board, in its sole discretion, shall determine whether a violation of
the maintenance obligations set forth in this Section 2.11 has occurred. Such maintenance
includes, but is not limited to the following, which shall be performed in a timely manner, as
determined by the Board, in its sole discretion:
(i) Prompt removal of all litter, trash, refuse, and wastes.
(ii) Lawn mowing and edging.
(iii) Tree and shrub pruning.
(iv) Replacement of dead trees and other dead landscaping.
(v) Watering.
(vi) Keeping exterior lighting and mechanical facilities in working
order.
(vii) Keeping lawn and garden areas alive, free of weeds, and
attractive.
(viii) Keeping planting beds free of turf grass.
(ix) Keeping sidewalks, curbs, walkways, alleys and driveways in
good repair.
(x) Complying with Applicable Law.
(xi) Repainting of Improvements.
(xii) Repair of exterior damage, and wear and tear to Improvements.
2.12 Association's Maintenance Right. The Board shall have the right, but not the
duty, to designate portions of Lots (including the exterior of single-family residences thereon),
for maintenance by the Association at the Lot Owner's expense. The designation by the Board
may be based on circumstantial categories, such as vacant lots, unoccupied residences, or on the
Association's experience with a particular Owner or category of Owners. The type of
maintenance designated by the Board for performance by the Association is not required to be
uniform for all designated lots, and may change from time to time, as determined in the Board's
sole discretion. The Board's designation may be based on several considerations, including but
not limited to, the Board's reasonable belief that an Owner is not able or willing to maintain his
or her Lot in accordance with the requirements set forth in this Declaration. The Board, in its
sole discretion, shall determine all aspects of the maintenance to be performed by the
Association pursuant to a designation contemplated by this Section 2.12, including, but not
limited to, the scope, quality, quantity, frequency, timing, cost and the performer. The full cost
of all expenses incurred pursuant to this Section 2.12 to maintain, repair or replace an Owner's
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Lot shall be an Individual Assessment against such Owner's Lot, secured by a lien against such
Owner's Lot and collectable in the same manner as provided in Section 6.10 of this Declaration.
In the event of any conflict between the terms and provisions of this Section 2.12, if any, and the
terms and provisions of any of the Restrictions, the terms and provisions of this Section 2.12 will
control.
2.13 Street Landscape Area -Owner's Obligation to Maintain Landscaping. Each
Owner will be responsible, at such Owner's sole cost and expense, for maintaining mowing,
replacing, pruning, and irrigating the landscaping between the boundary of such Owner's Lot
and the curb of any adjacent right-of-way, street or alley (the "ST Landscape Area") unless the
responsibility for maintaining the ST Landscape Area is performed by the Association. If the
maintenance of any ST Landscape Area is the responsibility of the Association, then the costs
incurred, or estimated to be incurred, by the Association shall be discharged through
Assessments.
2.14 Antennas. Except as expressly provided below, no exterior radio or television
antennas or aerial or satellite dish or disc, shall be erected, maintained or placed on a Lot
without the prior written approval of the ACC; provided, however, that:
(i) an antenna designed to receive direct broadcast services,
including direct -to -home satellite services, that is one meter or less in diameter;
or
(ii) an antenna designed to receive video programming services via
multipoint distribution services, including multi -channel multipoint distribution
services, instructional television fixed services, and local multipoint distribution
services, that is one meter or less in diameter or diagonal measurement; or
(iii) an antenna that is designed to receive television or radio
broadcast signals;
(collectively, (i) through (iii) are referred to herein as the "Permitted Antennas") will be
permitted subject to reasonable requirements as to location and screening as may be set forth in
rules adopted by the ACC, consistent with Applicable Law, in order to minimize obtrusiveness
as viewed from streets and adjacent property. Declarant and/or the Association will have the
right, but not the obligation, to erect an aerial, satellite dish, or other apparatus for a master
antenna, cable, or other communication system for the benefit of all or any portion of the
Property.
2.15 Location of Permitted Antennas. A Permitted Antenna may be installed solely
on the Owner's Lot and shall not encroach upon any street, Common Area, or any other portion
of the Property. A Permitted Antenna shall be installed in a location on the Lot from which an
acceptable quality signal can be obtained and where least visible from the street and the
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Property, other than the Lot. In order of preference, the locations of a Permitted Antenna which
will be considered least visible by the ACC are as follows:
(i) Attached to the back of the principal single-family residence
constructed on the Lot, with no part of the Permitted Antenna any higher than
the roof fascia, soffit, or bargeboard and screened from view of adjacent Lots and
the street; then
(ii) Attached to the side of the principal single-family residence
constructed on the Lot, with no part of the Permitted Antenna any higher than
the roof fascia, soffit, or bargeboard and screened from view of adjacent Lots and
the street.
The ACC may, from time to time, modify, amend, or supplement the rules regarding
installation and placement of Permitted Antennas.
Satellite dishes one meter or less in diameter, e.g., DirecTV or Dish satellite dishes,
are permitted, HOWEVER, you are required to comply with the rules regarding
installation and placement. These rules may be modified by the ACC from time to
time. Please contact the ACC for the current rules regarding installation and
placement.
2.16 Signs. Unless otherwise prohibited by Applicable Law, no sign of any kind may
be displayed to the public view on any Lot without the prior written approval of the ACC,
exceptfor:
(i) signs which are expressly permitted pursuant to the Design
Guidelines or Rules and Regulations;
(ii) signs which are part of Declarant's or Homebuilder's overall
marketing, sale, or construction plans or activities for the Property;
(iii) one (1) temporary "For Sale" sign placed on the Lot. The sign
must be professionally made and shall be limited to a maximum face area of five
(5) square feet on each visible side and, if free standing, is mounted on a single or
frame post. The overall height of the sign from the finished grade of the Lot at
the spot where the sign is located may not exceed four (4) feet. The sign must be
removed within two (2) business days following the sale of the Lot;
(iv) permits as may be required by legal proceedings;
(v) permits as may be required by any governmental entity; and
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(vi) a "no soliciting" and "security warning" sign near or on the front
door to their residence, provided, that the sign may not exceed twenty-five (25)
square inches.
For Lease and For Rent signs are expressly prohibited.
2.17 Tanks. The ACC must approve any tank used or proposed in connection with a
residence, including tanks for storage of fuel, water, oil, or liquid petroleum gas (LPG), and
including swimming pool filter tanks. No elevated tanks of any kind may be erected, placed or
permitted on any Lot without the advance written approval of the ACC. All permitted tanks
must be screened from view in accordance with a screening plan approved in advance by the
ACC. This provision will not apply to a tank used to operate a standard residential gas grill.
2.18 Temporary Structures. No tent, shack, or other temporary building,
Improvement, or structure shall be placed upon the Property without the prior written approval
of the ACC; provided, however, that temporary structures necessary for storage of tools and
equipment, and for office space for Declarant, Homebuilders, architects, and foremen during
actual construction may be maintained with the prior approval of Declarant (unless placed by
the Declarant), approval to include the nature, size, duration, and location of such structure.
2.19 Outside Storage Buildings. Outside storage buildings located in a fenced rear
yard of a Lot are allowed with the prior written approval of the ACC. One (1) permanent
storage building will be permitted if: (i) the square footage of the storage building does not
exceed one hundred (100) square feet; (ii) the height of the storage building, measured from the
surface of the Lot to the peak of the roof of the storage building, is no more than eight (8) feet;
and (iii) the storage building is constructed within all applicable building setbacks. No storage
building may be used for habitation.
2.20 Unsightly Articles. No article deemed to be unsightly by the Board will be
permitted to remain on any Lot so as to be visible from adjoining property or from public or
private thoroughfares. Without limiting the generality of the foregoing, graders, trucks other
than pickups, tractors, boats, wagons, buses, dirt bikes, motocross bikes, all -terrain vehicles and
garden maintenance equipment shall be kept at all times except when in actual use, in enclosed
structures or screened from view and no repair or maintenance work shall be done on any of
the foregoing, or on any automobile (other than minor emergency repairs), except in enclosed
garages or other structures. Trailers are not permitted on any Lot at any time. Service areas,
storage areas, compost piles and facilities for hanging, drying or airing clothing or household
fabrics shall be appropriately screened from view, and no lumber, grass, plant waste, shrub or
tree clippings, metals, bulk materials, scrap, refuse or trash shall be kept, stored, or allowed to
accumulate on any portion of the Property except within enclosed structures or appropriately
screened from view. No vehicles (including, without limitation, motorcycles or motor scooters)
which are inoperable or do not have a current license tag or vehicle registration shall be
permitted to remain visible on any Lot or to be parked on any roadway within the Property or
Common Area. Notwithstanding the foregoing, marine craft and all -terrain vehicles may be
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parked temporarily for a period not to exceed seventy-two (72) consecutive hours during each
two (2) month period. Unless operated by Declarant or a Homebuilder, no vehicles (including,
without limitation, trucks, vans or commercial vehicles) with commercial writings on their
exteriors shall be allowed temporarily within the Property and the Common Area during
normal business hours for the purpose of serving a Lot or Common Area; provided, however,
no such vehicle shall remain on the Property or the Common Area overnight without the
Board's prior written consent.
2.21 Mobile Homes, Travel Trailers and Recreational Vehicles. No mobile homes,
travel trailers or recreational vehicles shall be parked or placed on any street right of way, Lot,
or used as a residence, either temporary or permanent, at any time. However, such vehicles
may be parked temporarily for a period not to exceed seventy-two (72) consecutive hours
during each two (2) month period.
2.22 Basketball Goals; Permanent and Portable. Permanent basketball goals are
permitted in the front of the residence on a Lot provided the basketball goal is located at least
ten feet (10') away from the street curb. Permanent basketball goals are not permitted in any
street right-of-way. The basketball goal backboard must be perpendicular to the street and
mounted on a metal pole permanently installed in the ground. Portable basketball goals are
permitted but must be stored in the rear of the Lot or inside the garage when not in use.
Portable basketball goals are not permitted in any street right-of-way. Basketball goals must be
properly maintained and painted, with the net in good repair.
2.23 Compliance with Restrictions. Each Owner, his or her family, Residents of a
Lot, tenants, and the guests, invitees, and licensees of the preceding shall comply strictly with
the provisions of the Restrictions as the same may be amended from time to time. Failure to
comply with any of the Restrictions shall constitute a violation of the Restrictions and may
result in a fine against the Owner in accordance with Section 6.12 of this Declaration, and shall
give rise to a cause of action to recover sums due for damages or injunctive relief, or both,
maintainable by the Declarant, the Board on behalf of the Association, the ACC, or by an
aggrieved Owner. The result of every act or omission that violates any provision of the
Restrictions is a nuisance, and any remedy allowed by law against a nuisance, either public or
private, is applicable against the violation. Without limiting any rights or powers of the
Association, the Board may (but shall not be obligated to) remedy or attempt to remedy any
violation of any of the provisions of the Restrictions, and the Owner whose violation has been
so remedied shall be personally liable to the Association for all costs and expenses of effecting
(or attempting to effect) such remedy. If such Owner fails to pay such costs and expenses upon
demand by the Association, such costs and expenses (plus interest from the date of demand
until paid at the maximum lawful rate, or if there is no such maximum lawful rate, at the rate of
one and one-half percent (1-1/2%) per month) shall be assessed against and chargeable to the
Owner's Lot(s). Any such amounts assessed and chargeable against a Lot shall be secured by
the liens reserved in this Declaration for Assessments and may be collected by any means
provided in this Declaration for the collection of Assessments, including, but not limited to,
foreclosure of such liens against the Owner's Lot(s). Each such Owner shall release and hold
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harmless the Association and its officers, directors, employees and agents from any cost, loss,
damage, expense, liability, claim or cause of action incurred or that may arise by reason of
the Association's acts or activities under this Section 2.23 (including any cost, loss, damage,
expense, liability, claim or cause of action arising out of the Association's negligence in
connection therewith), except for such cost, loss, damage, expense, liability, claim or cause of
action arising by reason of the Association's gross negligence or willful misconduct. "Gross
negligence" as used herein does not include simple negligence, contributory negligence or
similar negligence short of actual gross negligence.
2.24 Liability of Owners for Damage to Common Area. No Owner shall in any way
alter, modify, add to or otherwise perform any work upon the Common Area without the prior
written approval of the Board and the Declarant during the Development Period. Each Owner
shall be liable to the Association for any and all damages to: (i) the Common Area and any
Improvements constructed thereon; or (ii) any Improvements constructed on any Lot, the
maintenance of which has been assumed by the Association, which damages were caused by
the neglect, misuse or negligence of such Owner or Owner's family, or by any tenant or other
Resident of such Owner's Lot, or any guest or invitee of such Owner or Resident. The full cost
of all repairs of such damage shall be an Individual Assessment against such Owner's Lot,
secured by a lien against such Owner's Lot and collectable in the same manner as provided in
Section 6.10 of this Declaration.
2.25 No Warranty of Enforceability. Declarant makes no warranty or representation
as to the present or future validity or enforceability of the Restrictions. Any Owner acquiring a
Lot in reliance on one or more of the Restrictions shall assume all risks of the validity and
enforceability thereof and, by acquiring the Lot, agrees to hold Declarant harmless therefrom.
2.26 Party Wall Fences and Walls. A fence, wall or shared driveway located on or
near the dividing line between two (2) Lots and intended to benefit both Lots constitutes a
"Party Wall" and, to the extent not inconsistent with the provisions of this Section 2.26, is subject
to the general rules of law regarding party walls and liability for property damage due to
negligence, willful acts, or omissions.
(a) Encroachments & Easement. If the Party Wall is on one Lot due to an
error in construction, the Party Wall is nevertheless deemed to be on the dividing line
for purposes of this Section 2.26. Each Lot sharing a Party Wall is subject to an easement
for the existence and continuance of any encroachment by the Party Wall as a result of
construction, repair, shifting, settlement, or movement in any portion of the Party Wall,
so that the encroachment may remain undisturbed as long as the Party Wall stands.
Each Lot is subject to a reciprocal easement for the maintenance, repair, replacement, or
reconstruction of the Party Wall.
(b) Right to Repair. If the Party Wall is damaged or destroyed from any
cause, the Owner of either Lot may repair or rebuild the Party Wall to its previous
condition, and the Owners of both Lots, their successors and assigns, have the right to
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the full use of the repaired or rebuilt Party Wall. No Party Wall may be constructed,
repaired, or rebuilt without the advance written approval of the ACC in accordance with
Article 7 of this Declaration.
(c) Maintenance Costs. The Owners of the adjoining Lots share equally the
costs of repair, reconstruction, or replacement of the Party Wall, subject to the right of
one Owner to call for larger contribution from the other under any rule of law regarding
liability for negligence or willful acts or omissions. If an Owner is solely responsible for
damage to or destruction of the Party Wall, that Owner will bear the entire cost of
repair, reconstruction, or replacement. If an Owner fails or refuses to pay his share
of costs of repair or replacement of the Party Wall, the Owner advancing monies has
a right to file a claim of lien for the monies advanced in the Official Public Records of
Pulaski County, Arkansas, and has the right to foreclose the lien as if it were a
mechanic's lien. The right of an Owner to require contribution from another Owner
under this Section 2.26 is appurtenant to the Lot and passes to the Owner's successors
in title.
(d) Alterations. The Owner of a Lot sharing a Party Wall may not cut
openings in the Party Wall or alter or change the Party Wall in any manner that affects
the use, condition, or appearance of the Party Wall to the adjoining Lot. The Party Wall
will always remain in the same location as when erected unless otherwise approved by
the Owner of each Lot sharing the Party Wall and the ACC.
(e) Dispute Resolution. In the event of any dispute arising concerning a
Party Wall, or tinder the provisions of this Section (the "Dispute"), the parties shall
submit the Dispute to mediation. Should the parties be unable to agree on a mediator
within ten (10) days after written request therefore by the Board, the Board shall appoint
a mediator. If the Dispute is not resolved by mediation, the Dispute shall be resolved by
binding arbitration. Either party may initiate the arbitration. Should the parties be
unable to agree on an arbitrator within ten (10) days after written request therefore by
the Board, the Board shall appoint an arbitrator. The decision of the arbitrator shall be
binding upon the parties and shall be in lieu of any right of legal action that either party
may have against the other. In the event an Owner fails to properly and on a timely
basis (both standards to be determined by the Board in the Board's sole and absolute
discretion) implement the decision of the mediator or arbitrator, as applicable, the Board
may implement said mediator's or arbitrator's decision, as applicable. If the Board
implements the mediator's or arbitrator's decision on behalf of an Owner, the Owner
otherwise responsible therefor will be personally liable to the Association for all costs
and expenses incurred by the Association in conjunction therewith. If such Owner fails
to pay such costs and expenses upon demand by the Association, such costs and
expenses (plus interest from the date of demand until paid at the maximum lawful rate,
or if there is no such maximum lawful rate, at the rate of one and one-half percent (1'/2%)
per month) will be assessed against and chargeable to the Owner's Lot(s). Any such
amounts assessed and chargeable against a Lot hereunder will be secured by the liens
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reserved in this Declaration for Assessments and may be collected by any means
provided in this Declaration for the collection of Assessments, including, but not limited
to, foreclosure of such liens against the Owner's Lot(s).
2.27 Playscapes and Sports Courts. Playscapes and sport courts are permissible at
the sole discretion of the ACC. If allowed, these facilities must be properly sited and screened
so as to minimize the visual and audio impact of the facility on adjacent properties. Sport
Courts may not be lighted or enclosed with netting. Tennis courts are not permitted.
2.28 Decorations and Lighting. A maximum of three (3) sculptures, birdbaths and
birdhouses, fountains, or other decorative embellishments shall be permitted on a Lot, provided
that such decorations: (i) blend in with the existing landscaping and residence constructed on
the Lot; (ii) are no larger than three (3) feet in height above natural ground; (iii) are kept in good
condition and repair, as determined in the sole and absolute discretion of the Board; (iv) do not
cause embarrassment, discomfort and/or annoyance to other Owners, as determined in the sole
and absolute discretion of the Board; and (v) do not contain any telephone numbers or
commercial advertisements. Customary seasonal decorations for holidays are permitted
without approval by the ACC but shall be removed within thirty (30) days of the applicable
holiday. Outside lighting fixtures shall be placed so as to illuminate only the yard of the
applicable Lot and so as not to affect or reflect into surrounding residences or yards. No
mercury vapor, sodium or halogen light shall be installed on any Lot which is visible from any
street unless otherwise approved by the ACC.
2.29 Exterior Window Air Conditioning Units. No exterior window air conditioning
units are permitted on any Lot without the advance written approval of the ACC.
2.30 Window Treatments. An Owner may install window treatments inside the
residence constructed on his or her Lot, provided that the window treatments, including
drapes, blinds, shades or shutters, must appear to be (i) clear, (ii) white, (iii) near -white light
neutral; or (iv) light wood tone when viewed from adjacent property. The use of newspaper,
bed sheets, tablecloths, or other obviously non -drapery fabrics, aluminum foil, and reflective
materials as window treatments are expressly prohibited.
ARTICLE 3
CONSTRUCTION RESTRICTIONS
3.01 Approval for Construction. Unless prosecuted by the Declarant, no
Improvements shall hereafter be placed, maintained, erected, or constructed upon any Lot
without the prior written approval of the ACC in accordance with Article 7 of this Declaration.
3.02 Rentals. Nothing in this Declaration shall prevent the rental of any Lot and the
Improvements thereon by the Owner thereof for residential purposes; provided that all rentals
must be for terms of at least twelve (12) months. All leases shall be in writing. The Owner must
provide to its lessee copies of the Restrictions and shall notify its lessee of any changes or
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additions thereto. Notice of any lease, together with such additional information as may be
required by the Board, will be remitted to the Association by the Owner on or before the
expiration of ten (10) days after the effective date of the lease. Notwithstanding the foregoing,
Declarant and its affiliates shall be exempt from the rental restrictions contained in this
Section 3.02, and this Section 3.02 may not be amended or modified without Declarant's written
and acknowledged consent.
3.03 Garages. All garages shall be maintained for the parking of automobiles and
may not be used for storage or other purposes which preclude its use for the parking of
automobiles. No garage may be permanently enclosed or otherwise used for habitation
3.04 Fences; Sidewalks. All fences and walls shall comply with all Applicable Law.
Unless otherwise approved by the ACC, no fence, wall or hedge will be erected or maintained
on any Lot nearer to the street than the front elevation of the residence constructed on the Lot,
except for fences erected in conjunction with the model homes or sales offices. The ACC will
have the sole discretion to determine the front elevation of the residence for the purpose of this
Section 3.04. No chain -link, metal, vinyl or agricultural fences may be installed or maintained
on a Lot, except by Declarant. Fences shall be six (6) feet in height, unless installed by Declarant
or required by Applicable Law. If required by the Plat, the Owner of each Lot shall construct, at
such Owner's sole cost and expense and prior to occupying any Improvement, a sidewalk on
such Owner's Lot, located and designed in conformance with the Plat. Each Owner must
maintain all fences on such Owner's Lot in good condition, including but not limited to
periodically re -staining all fences on such Owner's Lot using stain substantially similar to the
stain applied to the fences as originally constructed (if any), as determined by the ACC. Any
broken pickets, fallen or leaning panels must be repaired or replaced. In the event that a fence
on an Owner's Lot is replaced, the Owner is responsible for staining the new fence with stain
substantially similar to the stain applied to the fences as original constructed (if any), as
determined by the ACC. All fences that are Party Walls shall be subject to Section 2.26 of this
Declaration.
3.05 Trash Containers. Unless it is within twelve (12) hours before or after the
designated trash and recycling pickup time, trash containers and recycling bins must be stored
inside the garage of the single-family residence constructed on the Lot or in such a manner that
the trash container and recycling bin is not visible from any street, alley, or adjacent Lot. The
Board shall have the right to specify additional locations on each Owner's Lot in which trash
containers or recycling bins must be stored.
3.06 Drainage. There shall be no interference with the established drainage patterns
over any of the Property, including the Lots, except by Declarant, unless adequate provision is
made for proper drainage and such provision is approved in advance by the ACC. Specifically,
and not by way of limitation, no Improvement, including landscaping, may be installed which
impedes the proper drainage of water between Lots.
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3.07 Construction Activities. The Restrictions will not be construed or applied so as
to unreasonably interfere with or prevent normal construction activities during the construction
of Improvements by the Declarant or a Homebuilder upon or within the Property. Specifically,
no such construction activities will be deemed to constitute a nuisance or a violation of the
Restrictions by reason of noise, dust, presence of vehicles or construction machinery, posting of
signs or similar activities, provided that such constriction is pursued to completion with
reasonable diligence and conforms to usual construction practices in the area. If during the
course of construction upon any Lot there is excessive accumulation of debris of any kind which
would render the Lot or any portion thereof unsanitary, unsightly, offensive, or detrimental to
it or any other portion of the Property, then the ACC may contract for or cause such debris to be
removed, and the Owner of the Lot will be liable for all reasonable expenses incurred in
connection therewith.
3.08 Swimming Pools. Any swimming pool constructed on a Lot must be enclosed
with a fence or other enclosure device completely surrounding the swimming pool which, at a
minimum, satisfies all Applicable Law and be approved in advance by the ACC. Nothing in
this Section 3.08 is intended or shall be construed to limit or affect an Owner's obligation to
comply with any Applicable Law concerning swimming pool enclosure requirements. Unless
otherwise approved in advance by the ACC, above -ground or temporary swimming pools are
not permitted on a Lot. Notwithstanding the foregoing, kiddie pools that are no taller than
fifteen (15) inches and no wider than sixty (60) inches shall be permitted within a fenced rear
yard of a Lot.
3.09 Compliance with Setbacks and Easements. No residence or Improvement may
be constructed on any Lot nearer to a street than the minimum building setback lines shown on
the Plat and no Improvement shall be located on any drainage, utility or conservation easement,
unless otherwise permitted pursuant to Applicable Law.
3.10 Water Quality Facilities, Drainage Facilities and Drainage Ponds. The
Property may include, now or in the future, one or more water quality facilities, sedimentation,
drainage and detention facilities, or ponds which serve all or a portion of the Property and are
inspected, maintained and administered by the Association in accordance with all Applicable
Law. Access to these facilities and ponds is limited to persons engaged by the Association or its
agents to periodically maintain such facilities. Each Owner is advised that the water quality
facilities, sedimentation, drainage and detention facilities and ponds are an active utility feature
integral to the proper operation of the Property and may periodically hold standing water. Each
Owner is advised that entry into the water quality facilities, sedimentation, drainage and
detention facilities or ponds may result in injury and is a violation of the Rules and Regulations,
unless otherwise approved by the Association.
3.11 Parking. All Owners and Residents are encouraged to park vehicles in the
garage on their Lot and use the driveways on their Lot as overflow parking. On street parking
is limited to guests and visitors. No vehicle may obstruct the flow of traffic, constitute a
nuisance, or otherwise create a safety hazard, as determined by the Board in its sole discretion.
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No vehicle may be parked in a manner that obstructs or otherwise blocks ingress and egress to
any part of the Property by an emergency vehicle, as determined by the Board in its sole
discretion. The parking of vehicles in the yard of any Lot is not permitted.
ARTICLE 4
SHILOH GROVE HOMEOWNERS ASSOCIATION, INC.
4.01 Organization. The Association will be a nonprofit corporation created for the
purposes, charged with the duties, and vested with the powers of an Arkansas nonprofit
corporation. Neither the Articles nor Bylaws will for any reason be amended or otherwise
changed or interpreted so as to be inconsistent with this Declaration.
4.02 Membership.
(a) Mandatory Membership. Any person or entity, upon becoming an
Owner, will automatically become a Member of the Association. Membership will be
appurtenant to and will run with the ownership of the Lot that qualifies the Owner
thereof for membership, and membership may not be severed from the ownership of the
Lot, or in any way transferred, pledged, mortgaged or alienated, except together with
the title to such Lot. Within thirty (30) days after acquiring legal title to a Lot, if
requested by the Board, an Owner must provide the Association with: (1) a copy of the
recorded deed by which the Owner has acquired title to the Lot; (2) the Owner's address,
email address, phone number, and driver's license number, if any; (3) any Mortgagee's
name and address; and (4) the name, phone number, and email address of any Resident
other than the Owner.
If you acquire a Lot you automatically become a member of the Association.
Membership is Mandatory!
(b) Easement of Enjoyment — Common Area. Every Member will have a
right and easement of enjoyment in and to all of the Common Area and an access
easement by and through any Common Area, which easements will be appurtenant to
and will pass with the title to such Member's Lot, subject to the following restrictions
and reservations:
(i) The right of the Declarant, or the Declarant's designee, to cause
such Improvements and features to be constructed upon the Common Area, as
determined from time to time by the Declarant, in the Declarant's sole and
absolute discretion;
(ii) The right of the Association to suspend the Member's right to use
the Common Area for any period during which any Assessment against such
Member's Lot remains past due and for any period during which such member
is in violation of any provision of this Declaration;
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(iii) The right of the Declarant, during the Development Period, and
the Board thereafter, to dedicate or transfer all or any part of the Common Area
to any public agency, authority or utility for any purpose;
(iv) The right of the Declarant, during the Development Period, and
the Board thereafter to grant easements or licenses over and across the Common
Area;
(v) With the advance written approval of the Declarant during the
Development Period, the right of the Board to borrow money for the purpose of
improving the Common Area and, in furtherance thereof, mortgage the Common
Area;
(vi) The right of the Declarant, during the Development Period, and
the Board, with the advance written approval of the Declarant during the
Development Period, to promulgate Rules and Regulations regarding the use of
the Common Area and any Improvements thereon; and
(vii) The right of the Association to contract for services with any third
parties on such terms as the Board may determine, except that during the
Development Period, all such contracts must be approved in advance and in
writing by the Declarant.
4.03 Governance. As more specifically described in the Bylaws, the Board will
consist of at least three (3) persons elected at the annual meeting of the Association, or at a
special meeting called for such purpose. Notwithstanding the foregoing provision or any
provision in this Declaration to the contrary, Declarant will have the sole right to appoint
and remove all members of the Board until the end of the Development Period.
4.04 Voting Rights. The right to cast votes and the number of votes which may be
cast for election of members to the Board (except as provided by Section 4.03) and on all other
matters to be voted on by the Members will be calculated as set forth below.
(a) Owner Votes. The Owner of each Lot will have one (1) vote for each Lot
so owned.
(b) Declarant Votes. In addition to the votes to which Declarant is entitled by
reason of Section 4.04(a), for every one (1) vote outstanding in favor of any other person
or entity, Declarant will have four (4) additional votes until the expiration or termination
of the Development Period.
(c) Co -Owner Votes. When more than one person or entity owns a portion of
the fee simple interest in any Lot, all such persons or entities will be Members. As more
specifically described in the Bylaws, the vote or votes (or fraction thereof) for such Lot
will be exercised by the person so designated in writing to the Secretary of the
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DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS
4889-7407-9130v.3 52919-618
Association by the Owner of such Lot, and in no event will the vote for such Lot exceed
the total votes to which such Lot is otherwise entitled under this Section 4.04.
4.05 Powers. The Association will have the powers of an Arkansas nonprofit
corporation. It will further have the power to do and perform any and all acts that may be
necessary or proper, for or incidental to, the exercise of any of the express powers granted to it
by Applicable Law or this Declaration. Without in any way limiting the generality of the two
preceding sentences, the Board, acting on behalf of the Association, will have the following
powers at all times:
(a) Rules and Regulations, Bylaws and Community Manual. To make,
establish and promulgate, and in its discretion to amend from time to time, or repeal
and re-enact, such rules, regulations, policies, Bylaws and Community Manual which
are not in conflict with this Declaration, as it deems proper, covering any and all aspects
of the Property or the Common Area (including the operation, maintenance and
preservation thereof) or the Association. Any Rules and Regulations, policies, the
Bylaws and the Community Manual and any modifications thereto proposed by the
Board must be approved in advance and in writing by the Declarant until expiration or
termination of the Development Period.
(b) Insurance. To obtain and maintain in effect, policies of insurance that, in
the opinion of the Board, are reasonably necessary or appropriate to carry out the
Association's functions.
(c) Records. To keep books and records of the Association's affairs, and to
make such books and records, together with current copies of the Restrictions available
for inspection by the Owners, Mortgagees, and insurers or guarantors of any Mortgage
upon request during normal business hours.
(d) Assessments. To levy and collect assessments, as provided in Article 6
below.
(e) Right of Entry and Enforcement. To enter at any time without notice in
an emergency (or in the case of a non -emergency, after twenty-four (24) hours written
notice), without being liable to any Owner or Resident, upon any Lot and into any
Improvement thereon for the purpose of enforcing the Restrictions or for the purpose of
maintaining or repairing any area, Improvement or other facility to conform to the
Restrictions. The expense incurred by the Association in connection with the entry upon
any Lot and the maintenance and repair work conducted thereon or therein will be a
personal obligation of the Owner of the Lot so entered, will be deemed an Individual
Assessment against such Lot, will be secured by a lien upon such Lot, and will be
enforced in the same manner and to the same extent as provided in Article 6 hereof for
Assessments. The Association will have the power and authority from time to time, in
its own name and on its own behalf, or in the name of and on behalf of any Owner who
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DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS
4889-7407-9130v.3 52919-618
consents thereto, to commence and maintain actions and suits to enforce, by mandatory
injunction or otherwise, or to restrain and enjoin, any breach or threatened breach of the
Restrictions. The Association is also authorized to settle claims, enforce liens and take
all such action as it may deem necessary or expedient to enforce the Restrictions;
provided, however, that the Board will never be authorized to expend any Association
funds for the purpose of bringing suit against Declarant, or its successors or assigns.
The Association may not alter or demolish any Improvements on any Lot other than
Common Area in enforcing these Restrictions before a judicial order authorizing such
action has been obtained by the Association, or before the written consent of the
Owner(s) of the affected Lot(s) has been obtained. EACH SUCH OWNER AND
RESIDENT WILL RELEASE AND HOLD HARMLESS THE ASSOCIATION, ITS
OFFICERS, DIRECTORS, EMPLOYEES AND AGENTS FROM ANY COST, LOSS,
DAMAGE, EXPENSE, LIABILITY, CLAIM OR CAUSE OF ACTION INCURRED OR
THAT MAY ARISE BY REASON OF THE ASSOCIATION'S ACTS OR ACTIVITIES
UNDER THIS SECTION 4.05(e) (INCLUDING ANY COST, EXPENSE, LIABILITY,
CLAIM OR CAUSE OF ACTION ARISING OUT OF THE ASSOCIATION'S
NEGLIGENCE IN CONNECTION THEREWITH), EXCEPT FOR SUCH COST, LOSS,
DAMAGE, EXPENSE, LIABILITY, CLAIM OR CAUSE OF ACTION ARISING BY
REASON OF THE ASSOCIATION'S GROSS NEGLIGENCE OR WILLFUL
MISCONDUCT. "GROSS NEGLIGENCE" DOES NOT INCLUDE SIMPLE
NEGLIGENCE, CONTRIBUTORY NEGLIGENCE OR SIMILAR NEGLIGENCE
SHORT OF ACTUAL GROSS NEGLIGENCE.
(f) Legal and Accounting Services. To retain and pay for legal and
accounting services necessary or proper in the operation of the Association.
(g) Conveyances. To grant and convey to any person or entity the real
property and/or other interest, including fee title, leasehold estates, easements, rights -of -
way or mortgages, out of, in, on, over, or under any Common Area for the purpose of
constructing, erecting, operating or maintaining the following:
(i) Parks, parkways or other recreational facilities or structures;
(ii) Roads, streets, sidewalks, signs, street lights, walks, driveways,
trails and paths;
(iii) Lines, cables, wires, conduits, pipelines or other devices for utility
purposes;
(iv) Sewers, water systems, storm water drainage systems, sprinkler
systems and pipelines; and/or
(v) Any similar Improvements or facilities.
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DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS
4889-7407-9130v.3 52919-618
Nothing set forth above, however, will be construed to permit use or occupancy
of any Improvement or other facility in a way that would violate applicable use and
occupancy restrictions imposed by the Restrictions or by Applicable Law. In addition,
until expiration or termination of the Development Period, any grant or conveyance
under this Section 4.05(g) must be approved in advance and in writing by the Declarant.
(h) Manager. To retain and pay for the services of a person or firm (the
"Manager'), which may include Declarant or any affiliate of Declarant, to manage and
operate the Association, including its property, to the extent deemed advisable by the
Board. Personnel may be employed directly by the Association or may be furnished by
the Manager. To the extent permitted by Applicable Law, the Board may delegate any
other duties, powers and functions to the Manager. In addition, the Board may adopt
transfer fees, resale certificate fees or any other fees associated with the provision of
management services to the Association or its Members. THE MEMBERS HEREBY
RELEASE THE ASSOCIATION AND THE MEMBERS OF THE BOARD AND
COMMITTEE MEMBERS FROM LIABILITY FOR ANY OMISSION OR IMPROPER
EXERCISE BY THE MANAGER OF ANY SUCH DUTY, POWER OR FUNCTION SO
DELEGATED.
(i) Property Services. To pay for water, sewer, garbage removal, street
lights, landscaping, gardening and all other utilities, services, repair and maintenance
for any portion of the Property, Common Area, private or public recreational facilities,
easements, roads, roadways, rights -of -ways, signs, parks, parkways, median strips,
sidewalks, paths, trails, ponds, and lakes.
(j) Other Services and Properties. To obtain and pay for any other property
and services, and to pay any other taxes or assessments that the Association or the Board
is required or permitted to secure or to pay for pursuant to Applicable Law or under the
terms of the Restrictions or as determined by the Board.
(k) Construction on Common Area. To construct new Improvements or
additions to any property owned, leased, or licensed by the Association, subject to the
approval of the Board and the Declarant until expiration or termination of the
Development Period.
(1) Contracts. To enter into Bulk Rate Contracts or other contracts or licenses
with Declarant or any third party on such terms and provisions as the Board will
determine, to operate and maintain any Common Area or other property, or to provide
any service, including but not limited to cable, utility, or telecommunication services, or
perform any function on behalf of Declarant, the Board, the Association, or the
Members. During the Development Period, all Bulk Rate Contracts must be approved in
advance and in writing by the Declarant.
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4889-7407-9130v.3 52919-618
(m) Property Ownership. To acquire, own and dispose of all manner of real
and personal property, including habitat, whether by grant, lease, easement, gift or
otherwise. During the Development Period, all acquisitions and dispositions of the
Association hereunder must be approved in advance and in writing by the Declarant.
(n) Allocation of Votes. To determine votes when permitted pursuant to
Section 4.04 above.
(o) Authority with Respect to the Restrictions. To do any act, thing or deed
that is necessary or desirable, in the judgment of the Board, to implement, administer or
enforce any of the Restrictions. Any decision by the Board to delay or defer the exercise
of the power and authority granted by this Section 4.05(o) will not subsequently in any
way limit, impair or affect ability of the Board to exercise such power and authority.
(p) Membership Privileges. To establish Rules and Regulations governing
and limiting the use of the Common Area and any Improvements thereon. All Rules and
Regulations governing and limiting the use of the Common Area and any
Improvements thereon must be approved in advance and in writing by the Declarant
during the Development Period.
4.06 Conveyance of Common Area. The Association may acquire, hold, and dispose
of any interest in tangible and intangible personal property and real property. Declarant, and
its assignees, reserves the right, from time to time and at any time, to designate by written and
Recorded instrument portions of the Property being held by the Declarant or a third party for
the benefit of the Association, in the sole and absolute discretion of the Declarant. Upon the
Recording of such designation, the portion of the Property identified therein will be considered
Common Area for the purpose of this Declaration. Declarant and its assignees may also assign,
transfer or convey to the Association interests in real or personal property within or for the
benefit of the Property, for the Property and the general public, or otherwise, as determined in
the sole and absolute discretion of the Declarant. All or any real or personal property assigned,
transferred and/or conveyed by the Declarant to the Association shall be deemed accepted by
the Association upon Recordation, and without further action by the Association, and shall be
considered Common Area without regard to whether such real or personal property is
designated by the Declarant as Common Area. If requested by the Declarant, the Association
will execute a written instrument, in a form requested by the Declarant, evidencing acceptance
of such real or personal property; provided, however, execution of a written consent by the
Association shall in no event be a precondition to acceptance by the Association. The
assignment, transfer, and/or conveyance of real or personal property to the Association may be
by deed without warranty, may reserve easements in favor of the Declarant or a third party
designated by Declarant over and across such property, and may include such other provisions,
including restrictions on use, determined by the Declarant, in the Declarant's sole and absolute
discretion. Property assigned, transferred, and/or conveyed to the Association may be
improved or unimproved and may consist of fee simple title, easements, leases, licenses, or
other real or personal property interests. Upon Declarant's written request, the Association will
SHILOH GROVE
DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS
4889-7407-9130v.3 52919-618
re -convey to Declarant any unimproved real property that Declarant originally conveyed to the
Association for no payment.
4.07 Indemnification. To the fullest extent permitted by Applicable Law but without
duplication (and subject to) any rights or benefits arising under the Articles or Bylaws of the
Association, the Association will indemnify any person who was, or is, a party, or is threatened
to be made a party to any threatened pending or completed action, suit or proceeding, whether
civil, criminal, administrative or investigative by reason of the fact that such person is, or was, a
director, officer, committee member, employee, servant or agent of the Association against
expenses, including attorneys' fees, reasonably incurred by such person in connection with such
action, suit or proceeding if it is found and determined by the Board or a court of competent
jurisdiction that he or she: (1) acted in good faith and in a manner he or she reasonably believed
to be in, or not opposed to, the best interests of the Association; or (2) with respect to any
criminal action or proceeding, had no reasonable cause to believe his or her conduct was
unlawful. The termination of any action, suit or proceeding by settlement, or upon a plea of
nolo contendere or its equivalent, will not of itself create a presumption that the person did not
act in good faith or in a manner which was reasonably believed to be in, or not opposed to, the
best interests of the Association or, with respect to any criminal action or proceeding, had
reasonable cause to believe that his or her conduct was unlawful.
4.08 Insurance. The Board may purchase and cause to be maintained, at the expense
of the Association, insurance on behalf of any person who is acting as a director, officer,
committee member, employee, servant or agent of the Association against any liability asserted
against or incurred by such person in any such capacity, or arising out of such person's status as
such, whether or not the Association would have the power to indemnify such person against
such liability or otherwise.
4.09 Bulk Rate Contracts. Without limitation on the generality of the Association
powers set out in Section 4.05 hereinabove (except that during the Development Period, all Bulk
Rate Contracts must be approved in advance and in writing by the Declarant), the Association
will have the power to enter into Bulk Rate Contracts at any time and from time to time. The
Association may enter into Bulk Rate Contracts with any service providers chosen by the Board
(including Declarant, and/or any entities in which Declarant, or the owners or partners of
Declarant are owners or participants, directly or indirectly). The Bulk Rate Contracts may be
entered into on such terms and provisions as the Board may determine in its sole and absolute
discretion. The Association may, at its option and election, add the charges payable by such
Owner under such Bulk Rate Contract to the Assessments against such Owner's Lot. In this
regard, it is agreed and understood that, if any Owner fails to pay any charges due by such
Owner under the terms of any Bulk Rate Contract, then the Association will be entitled to
collect such charges by exercising the same rights and remedies it would be entitled to exercise
tinder this Declaration with respect to the failure by such Owner to pay Assessments, including
without limitation the right to foreclose the lien against such Owner's Lot which is reserved
under the terms and provisions of this Declaration. In addition, in the event of nonpayment by
any Owner of any charges due under any Bulk Rate Contract and after the lapse of at least
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DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS
4889-7407-9"130v.3 52919-618
twelve (12) days since such charges were due, the Association may, upon five (5) days' prior
written notice to such Owner (which may run concurrently with such 12 day period), in
addition to all other rights and remedies available pursuant to Applicable Law, terminate, in
such manner as the Board deems appropriate, any utility service or other service provided at
the cost of the Association and not paid for by such Owner (or the Resident of such Owner's
Lot) directly to the applicable service or utility provider. Such notice will consist of a separate
mailing or hand delivery at least five (5) days prior to a stated date of termination, with the title
"termination notice" or similar language prominently displayed on the notice. The notice will
include the office or street address where the Owner (or the Resident of such Owner's Lot) can
make arrangements for payment of the bill and for re -connection or re -institution of service. No
utility or cable television service will be disconnected on a day, or immediately preceding a day,
when personnel are not available for the purpose of collection and reconnecting such services.
4.10 Protection of Declarant's Interests. Despite any assumption of control of the
Board by Owners other than Declarant, until the expiration or termination of the Development
Period, the Board is prohibited from taking any action which would discriminate against
Declarant, or which would be detrimental to the sale of Lots or any other portion of the
Property owned by Declarant. Declarant shall be entitled to determine, in its sole and absolute
discretion, whether any such action discriminates or is detrimental to Declarant. The Board will
be required to continue the same level and quality of maintenance, operations and services as
that provided immediately prior to assumption of control of the Board by Owners other than
Declarant until the expiration or termination of the Development Period.
4.11 Administration of Common Area. The administration, maintenance, repair and
replacement of the Common Area by the Association (such Common Area includes, without
limitation, any Improvements and/or facilities thereon and appurtenances thereto), shall be in
accordance with the provisions of Applicable Law and the Restrictions, and of any other
agreements, documents, amendments or supplements to the foregoing which may be duly
adopted or subsequently required by any institutional or governmental lender, purchaser,
insurer or guarantor of mortgage loans (including, for example, the Federal Home Loan
Mortgage Corporation) designated by Declarant or by any governmental or quasi -governmental
agency having regulatory jurisdiction over the Common Area or by any title insurance
company selected by Declarant to insure title to any portion of the Common Area.
4.12 Right of Action by Association. The Association shall not have the power to
institute, defend, intervene in, settle or compromise litigation, arbitration or other proceedings:
(i) in the name of or on behalf of any Lot Owner (whether one or more); or (ii) pertaining to a
Claim, as defined in Section 12.01 below, relating to the design or construction of Improvements
on a Lot (whether one or more). This Section 4.12 may not be amended or modified without
Declarant's written and acknowledged consent and Members entitled to cast at least one
hundred percent (100%) of the total number of votes of the Association, which must be part of
the Recorded amendment instrument.
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DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS
4889-7407-9130v.3 52919-618
4.13 Merger. Any merger or consolidation of the Association with another
association must made pursuant to the requirements of ARK. CODE § 4-28-305 (2020). On
merger or consolidation of the Association with another association, the property, rights, and
obligations of another association may, by operation of law, be added to the properties, rights,
and obligations of the Association as a surviving corporation pursuant to the merger. The
surviving or consolidated association may administer the provisions of the Restrictions within
the Property, together with the covenants and restrictions established on any other property
under its jurisdiction. No merger or consolidation, however, will effect a revocation, change, or
addition to the covenants established by this Declaration within the Property.
ARTICLE 5
INSURANCE
5.01 Insurance. Each Owner will be required to purchase and maintain commercially
standard insurance on the Improvements located upon such Owner's Lot. The Association will
not be required to maintain insurance on the Improvements constructed upon any Lot. The
Association may, however, obtain such insurance as it may deem necessary, including but not
limited to such policies of liability and property damage insurance as the Board, in its
discretion, may deem necessary. Insurance premiums for such policies will be a common
expense to be included in the Assessments levied by the Association. The acquisition of
insurance by the Association will be without prejudice to the right and obligation of any Owner
to obtain additional individual insurance. During the Development Period, Declarant reserves
the right to satisfy the insurance obligations of the Association with a master insurance program
controlled by Declarant.
ARE YOU COVERED?
The Association will not provide insurance which covers an Owner's Lot or any
Improvements or personal property located on a Lot.
5.02 Restoration. In the event of any fire or other casualty, unless otherwise
approved by the ACC, the Owner will promptly repair, restore and replace any damaged or
destroyed structures to their same exterior condition existing prior to the damage or destruction
thereof. The approval of the ACC shall not be required to restore Improvements to their same
exterior condition existing prior to the damage or destruction thereof. Such repair, restoration
or replacement will be commenced and completed in a good and workmanlike manner using
exterior materials substantially similar to those originally used in the structures damaged or
destroyed. To the extent that the Owner fails to commence such repair, restoration or
replacement of substantial or total damage or destruction within one hundred and twenty (120)
days after the occurrence of such damage or destruction, and thereafter prosecute the same to
completion, or if the Owner does not clean up any debris resulting from any damage within
thirty (30) days after the occurrence of such damage, the Association may commence, complete
or effect such repair, restoration, replacement or clean-up, and such Owner will be personally
liable to the Association for the cost of such work; provided, however, that if the Owner is
prohibited or delayed by Applicable Law from commencing such repair, restoration,
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DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS
4889-7407-9130v.3 529"19-618
replacement or clean-up, the rights of the Association under this provision will not arise until
the expiration of thirty (30) days after such prohibition or delay is removed. If the Owner fails
to pay such cost upon demand by the Association, the cost thereof (plus interest from the date
of demand until paid at the maximum lawful rate, or if there is no such maximum lawful rate,
then at the rate of one and one-half percent (11h%) per month) will be added to the Assessment
chargeable to the Owner's Lot. Any such amounts added to the Assessments chargeable
against a Lot will be secured by the liens reserved in this Declaration for Assessments and may
be collected by any means provided in this Declaration for the collection of Assessments,
including, but not limited to, foreclosure of such liens against the Owner's Lot. EACH SUCH
OWNER WILL RELEASE AND HOLD HARMLESS THE ASSOCIATION AND ITS
OFFICERS, DIRECTORS, COMMITTEE MEMBERS, EMPLOYEES AND AGENTS FROM
ANY COST, LOSS, DAMAGE, EXPENSE, LIABILITY, CLAIM OR CAUSE OF ACTION
INCURRED OR THAT MAY ARISE BY REASON OF THE ASSOCIATION'S ACTS OR
ACTIVITIES UNDER THIS SECTION 5.02, EXCEPT FOR SUCH COST, LOSS, DAMAGE,
EXPENSE, LIABILITY, CLAIM OR COST OF ACTION ARISING BY REASON OF THE
ASSOCIATION'S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT. "GROSS
NEGLIGENCE" AS USED HEREIN DOES NOT INCLUDE SIMPLE NEGLIGENCE,
CONTRIBUTORY NEGLIGENCE OR SIMILAR NEGLIGENCE SHORT OF ACTUAL
GROSS NEGLIGENCE.
5.03 Mechanic's and Materialmen's Lien. Each Owner whose structure is repaired,
restored, replaced or cleaned up by the Association pursuant to the rights granted under this
Article 5, hereby grants to the Association an express mechanic's and materialmen's lien for the
reasonable cost of such repair, restoration, or replacement of the damaged or destroyed
Improvement to the extent that the cost of such repair, restoration or replacement exceeds any
insurance proceeds allocable to such repair, restoration or replacement and delivered to the
Association. Upon request by the Board, and before the commencement of any reconstruction,
repair, restoration or replacement, such Owner will execute all documents sufficient to
effectuate such mechanic's and materialmen's lien in favor of the Association.
ARTICLE 6
COVENANT FOR ASSESSMENTS
6.01 Assessments.
(a) Established by the Board. Assessments established by the Board pursuant
to the provisions of this Article 6 will be levied against each Lot in amounts determined
pursuant to Section 6.07 below. The total amount of Assessments will be determined
pursuant to Section 6.03, 6.04, 6.05, and/or 6.06.
(b) Personal Obligation; Lien. Each Assessment, together with such interest
thereon and costs of collection as hereinafter provided, will be the personal obligation of
the Owner of the Lot against which the Assessment is levied and will be secured by a
lien hereby granted and conveyed by Declarant to the Association against each such Lot
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4889-7407-9130v.3 52919-618
and all Improvements thereon (such lien, with respect to any Lot not in existence on the
date hereof, will be deemed granted and conveyed at the time that such Lot is created).
The Association may enforce payment of such Assessments in accordance with the
provisions of this Article.
(c) Declarant Subsidy. Declarant may, but is not obligated to, reduce
Assessments which would otherwise be levied against Lots for any fiscal year by the
payment of a subsidy to the Association. Any subsidy paid to the Association by
Declarant may be treated as a contribution or a loan, in Declarant's sole and absolute
discretion. Any subsidy and the characterization thereof may be disclosed as a line item
in the annual budget prepared by the Board and attributable to such Assessments. The
payment of a subsidy in any given year will not obligate Declarant to continue payment
of a subsidy to the Association in future years.
6.02 Maintenance Fund. The Board will establish a maintenance fund into which will
be deposited all monies paid to the Association and from which disbursements will be made in
performing the functions of the Association under this Declaration. The funds of the
Association may be used for any purpose authorized by the Restrictions and Applicable Law.
6.03 Regular Assessments. Prior to the beginning of each fiscal year, the Board will
prepare a budget for the purpose of determining amounts sufficient to pay the estimated net
expenses of the Association (the "Regular Assessments") which sets forth: (i) an estimate of the
expenses to be incurred by the Association during such year in performing its functions and
exercising its powers tinder the Restrictions, including, but not limited to, the cost of all
management, repair and maintenance, the cost of providing any lighting, the cost of
administering and enforcing the Restrictions, and (ii) an estimate of the amount needed to
maintain a reasonable provision for contingencies and an appropriate replacement reserve, and
will give due consideration to any expected income and any surplus from the prior year's fund.
Assessments sufficient to pay such estimated net expenses will then be levied at the level of
Assessments set by the Board in its sole and absolute discretion, and the Board's determination
will be final and binding so long as it is made in good faith. If the sums collected prove
inadequate for any reason, including nonpayment of any Assessment, the Association may at
any time, and from time to time, levy further Assessments in the same manner. All such
Regular Assessments will be due and payable to the Association annually on or before the first
day of the month, or in such other manner as the Board may designate in its sole and absolute
discretion.
6.04 Special Assessments. In addition to the Regular Assessments provided for
above, the Board may levy special assessments (the "Special Assessment") whenever in the
Board's opinion such Special Assessments are necessary to enable the Board to carry out the
functions of the Association under the Restrictions. The amount of any Special Assessments
will be at the reasonable discretion of the Board. In addition to the Special Assessments
authorized above, the Association may, in any fiscal year, levy a Special Assessment for the
purpose of defraying, in whole or in part, the cost of any construction, reconstruction, repair or
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replacement of a capital improvement upon the Common Area. Any Special Assessment levied
by the Association for the purpose of defraying, in whole or in part, costs of any construction,
reconstruction, repair or replacement of capital improvement upon the Common Area will be
levied against all Owners based on Assessment Units.
6.05 Individual Assessments. In addition to any other Assessments, the Board may
levy an individual assessment (the "Individual Assessment") against an Owner and the
Owner's Lot. Individual Assessments may include, but are not limited to: interest, late charges,
and collection costs on delinquent Assessments; reimbursement for costs incurred in bringing
an Owner or the Owner's Lot into compliance with the Declaration; fines for violations of the
Restrictions; transfer -related fees and resale certificate fees; fees for estoppel letters and project
documents; insurance deductibles; reimbursement for damage or waste caused by willful or
negligent acts of the Owner, the Owner's guests, invitees or Residents of the Owner's Lot;
common expenses that benefit fewer than all of the Lots, which may be assessed according to
benefit received; fees or charges levied against the Association on a per -Lot basis; and "pass
through" expenses for services to Lots provided through the Association and which are paid by
each Lot according to the benefit received.
6.06 Working Capital Assessment. Each Owner will pay a working capital
assessment (the "Working Capital Assessment") to the Association equal to twelve (12) months
of the monthly Regular Assessment payable to the Association immediately upon each transfer
of title to the Lot, including upon transfer of title from one Owner of such Lot to any subsequent
purchaser or transferee thereof. For purposes of calculating the Working Capital Assessment
due upon the transfer of a Lot, the monthly Regular Assessment per Lot in effect on the date of
the transfer will be used. The Association may use the working capital to discharge operating
expenses. Notwithstanding the foregoing provision, the following transfers will not be subject
to the Working Capital Assessment: (i) foreclosure of a deed of trust lien, tax lien, or the
Association's Assessment lien; (ii) transfer to, from, or by the Association; or (iii) voluntary
transfer by an Owner to one or more co -owners, or to the Owner's spouse, child, or parent.
Additionally, the Declarant and an Owner who is a Homebuilder will not be subject to the
Working Capital Assessment; however, the Working Capital Assessment will be payable by any
Owner who acquires a Lot from the Declarant or a Homebuilder. In the event of any dispute
regarding the application of the Working Capital Assessment to a particular Owner, the
determination by the Declarant during the Development Period, and the Board thereafter,
regarding application of the exemption will be binding and conclusive without regard to any
contrary interpretation of this Section 6.06. The Working Capital Assessment will be in addition
to, not in lieu of, any other Assessments levied in accordance with this Article 6 and will not be
considered an advance payment of such Assessments.
6.07 Amount of Assessment.
(a) Assessments to be Levied. The Board shall levy Assessments against
each "Assessment Unit" (as defined in Section 6.07(b) below). Unless otherwise
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provided in this Declaration, Assessments levied pursuant to Section 6.03 and
Section 6.04 shall be levied uniformly against each Assessment Unit allocated to a Lot.
(b) Assessment Unit. Each Lot shall constitute one "Assessment Unit" unless
otherwise provided in Section 6.07(c) and 6.07(d).
(c) Declarant Exemption. Notwithstanding anything in this Declaration to
the contrary, no Assessments shall be levied upon Lots owned by Declarant.
(d) Other Exemptions. Declarant may, in its sole discretion, elect to:
(i) exempt any un-platted or unimproved portion of the Property or any Lot from any
Assessments levied or charged pursuant to this Article 6; or (ii) delay the levy of
Assessments against any un-platted, unimproved or improved portion of the Property.
Declarant or the Board may also exempt any portion of the Property which is dedicated
and accepted by public authority from Assessments.
6.08 Late Charges. If any Assessment is not paid by the due date applicable thereto,
the Owner responsible for the payment may be required by the Board, at the Board's election at
any time and from time to time, to pay a late charge in such amount as the Board may
designate, and the late charge (and any reasonable handling costs) will be levied as an
Individual Assessment against the Lot owned by such Owner, collectible in the manner as
provided for collection of Assessments, including foreclosure of the lien against such Lot;
provided, however, such charge will never exceed the maximum charge permitted under
Applicable Law.
6.09 Owner's Personal Obligation; Interest. Assessments levied as provided for
herein will be the personal and individual debt of the Owner of the Lot against which are levied
such Assessments. No Owner may exempt himself from liability for such Assessments. In the
event of default in the payment of any such Assessment, the Owner of the Lot will be obligated
to pay interest on the amount of the Assessment at the highest rate allowed by applicable usury
laws then in effect on the amount of the Assessment from the due date therefor (or if there is no
such highest rate, then at the rate of one and one half percent (1 1/2% ) per month), together with
all costs and expenses of collection, including reasonable attorney's fees. Such amounts will be
levied as an Individual Assessment against the Lot owned by such Owner.
6.10 Assessment Lien and Foreclosure. The payment of all sums assessed in the
manner provided in this Article is, together with late charges as provided in Section 6.08 and
interest as provided in Section 6.09 hereof and all costs of collection, including attorney's fees as
herein provided, secured by the continuing Assessment lien granted to the Association
pursuant to Section 6.01(b) above, and will bind each Lot in the hands of the Owner thereof, and
such Owner's heirs, devisees, personal representatives, successors or assigns. The aforesaid lien
will be superior to all other liens and charges against such Lot, except only for: (i) tax and
governmental assessment liens; (ii) all sums secured by a Recorded first mortgage lien or
Recorded first deed of trust lien of record, to the extent such lien secures sums borrowed for the
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acquisition or improvement of the Lot in question; (iii) home equity loans or home equity lines
of credit which are secured by a Recorded second mortgage lien or Recorded second deed of
trust lien of record; or (iv) as otherwise required by Applicable Law; provided that, in the case
of subparagraphs (ii), (iii), and (iv) above, such Mortgage was Recorded before the delinquent
Assessment was due. The Association will have the power to subordinate the aforesaid
Assessment lien to any other lien. Such power will be entirely discretionary with the Board, and
such subordination shall be signed by an authorized officer, agent or attorney of the
Association. The Association may, at its option and without prejudice to the priority or
enforceability of the Assessment lien granted hereunder, prepare a written notice of Assessment
lien setting forth the amount of the unpaid indebtedness, the name of the Owner of the Lot
covered by such lien and a description of the Lot. Such notice may be signed by one of the
authorized officers, agents, or attorneys of the Association and will be Recorded. Each Owner,
by accepting a deed or ownership interest to a Lot subject to this Declaration, will be deemed
conclusively to have granted a power of sale to the Association to secure and enforce the
Assessment lien granted. The power of sale may allow the Association to sell the Lot without
going to court in a foreclosure action upon default by the Owner under this Declaration. The
Assessment liens and rights to foreclosure thereof will be in addition to and not in substitution
of any other rights and remedies the Association may have by law and under this Declaration,
including the rights of the Association to institute suit against such Owner personally obligated
to pay the Assessment and/or for foreclosure of the aforesaid lien. In any foreclosure
proceeding, such Owner will be required to pay the costs, expenses and reasonable attorney's
fees incurred. The Association will have the power to bid (in cash or by credit against the
amount secured by the lien) on the property at foreclosure or other legal sale and to acquire,
hold, lease, mortgage, convey or otherwise deal with the same. Upon the written request of any
Mortgagee, the Association will report to said Mortgagee any unpaid Assessments remaining
unpaid for longer than sixty (60) days after the same are due. The lien hereunder will not be
affected by the sale or transfer of any Lot; except, however, that in the event of foreclosure of
any lien superior to the Assessment lien, the lien for any Assessments that were due and
payable before the foreclosure sale will be extinguished, provided that past -due Assessments
will be paid out of the proceeds of such foreclosure sale only to the extent that funds are
available after the satisfaction of the indebtedness secured by the Mortgage. The provisions of
the preceding sentence will not, however, relieve any subsequent Owner (including any
Mortgagee or other purchaser at a foreclosure sale) from paying Assessments becoming due
and payable after the foreclosure sale. Upon payment of all sums secured by a lien of the type
described in this Sectioii 6.10, the Association will upon the request of the Owner, and at such
Owner's cost, execute a release of lien relating to any lien for which written notice has been
Recorded as provided above, except in circumstances in which the Association has already
foreclosed such lien. Such release will be signed by an authorized officer, agent, or attorney of
the Association. Except as otherwise provided by Applicable Law, the sale or transfer of a Lot
will not relieve the Owner of such Lot or such Owner's transferee from liability for any
Assessments thereafter becoming due or from the lien associated therewith. If an Owner
conveys its Lot and on the date of such conveyance Assessments against the Lot remain unpaid,
or said Owner owes other sums or fees under this Declaration to the Association, the Owner
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will pay such amounts to the Association out of the sales price of the Lot, and such sums will be
paid in preference to any other charges against the Lot other than liens superior to the
Assessment lien and charges in favor of the State of Arkansas or a political subdivision thereof
for taxes on the Lot which are due and unpaid. The Owner conveying such Lot will remain
personally liable for all such sums until the same are fully paid. The Board may adopt an
administrative transfer fee to cover the expenses associated with updating the Association's
records upon the transfer of a Lot to a third party; provided, however, that no transfer fee will
be due upon the transfer of a Lot from Declarant to a third party.
Yes, the Association can foreclose on your Lot!
If you fail to pay assessments to the Association, you may lose title to your Lot if the
Association forecloses its assessment lien.
6.11 Exempt Property. The following areas will be exempt from the Assessments
provided for in this Article:
(a) All area dedicated and accepted by public authority;
(b) The Common Area; and
(c) Any portion of the Property owned by Declarant or E-STEPS.
6.12 Fines and Damages Assessment.
(a) Board Assessment. The Board may assess fines against an Owner for
violations of the Restrictions which have been committed by an Owner, a Resident, or
the Owner or Residents guests, agents or invitees. Any fine and/or charge levied in
accordance with this Section 6.12 will be considered an Individual Assessment pursuant
to this Declaration. Each day of violation may be considered a separate violation if the
violation continues after written notice to the Owner. The Board may assess damage
charges against an Owner for pecuniary loss to the Association from property damage
or destruction of Common Area or any facilities caused by the Owner, Resident, or their
guests, agents, or invitees. The Manager will have authority to send notices to alleged
violators, informing them of their violations and asking them to comply with the Rules
and Regulations and/or informing them of potential or probable fines or damage
assessments. The Board may from time to time adopt a schedule of fines.
(b) Lien Created. The payment of each fine and/or damage charge levied by
the Board against the Owner of a Lot is, together with interest as provided in Section 6.09
hereof and all costs of collection, including attorney's fees as herein provided, secured
by the lien granted to the Association pursuant to Section 6.01(b) of this Declaration. The
fine and/or damage charge will be considered an Assessment for the purpose of this
Article and will be enforced in accordance with the terms and provisions governing the
enforcement of assessments pursuant to this Article 6.
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ARTICLE 7
ARCHITECTURAL CONTROL COMMITTEE
Declarant has a substantial interest in ensuring that Improvements within the Property
maintain and enhance Declarant's reputation as a community developer and do not impair
Declarant's ability to market and sell all or any portion of the Property. Until Declarant has
delegated its right to appoint and remove all members of the ACC to the Board as provided in
Section 7.02(a) below, the ACC will be acting solely in Declarant's interest and will owe no duty
to any other Owner or the Association. Notwithstanding any provision in this Declaration to
the contrary, Declarant may appoint a single person to exercise the rights of the ACC.
7.01 Construction of Improvements. No Improvement may be erected, placed,
constructed, painted, altered, modified or remodeled on any Lot, and no Lot may be
re -subdivided or consolidated with other Lots or Property, by anyone other than Declarant
without the prior written approval of the ACC.
7.02 Architectural Control Committee.
(a) Composition. The ACC will be composed of not more than three (3)
persons (who need not be Members or Owners) appointed as provided below, who will
review Improvements proposed to be made by any Owner other than Declarant.
Declarant will have the right to appoint and remove (with or without cause) all
members of the ACC. Declarant may assign its right to appoint all members of the ACC
to the Association by Recorded written instrument, and thereafter, the Board will have
the right to appoint and remove (with or without cause) all members of the ACC. Any
assignment by Declarant of the right to appoint and remove all members of the ACC
may be withdrawn until expiration of twenty-four (24) months after the expiration of the
Development Period. If Declarant withdraws its assignment of the right to appoint and
remove all members of the ACC, then on the date of such withdrawal, Declarant will
have the right to appoint and remove (with or without cause) all members of the ACC.
Declarant's right to appoint all members of the ACC will automatically be assigned to
the Association upon the expiration of twenty-four (24) months after the expiration of
the Development Period. Declarant, at its option, may create and assign specific duties
and responsibilities to one or more sub -committees consisting of members and/or
nonmembers of the ACC. In the event responsibilities and duties are assigned to a
sub -committee, those responsibilities and duties will no longer be discharged by the
ACC unless the sub -committee exercising such duties and responsibilities is dissolved
by Declarant. The right to create, dissolve, and appoint members of such sub -committees
will reside exclusively with Declarant until such time as Declarant has assigned its right
to appoint members of the ACC to the Association. The ACC will have the right to
employ consultants and advisors as it deems necessary or appropriate.
(b) Submission and Approval of Plans and Specifications. Construction
plans and specifications or, when an Owner desires solely to re -subdivide or consolidate
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Lots, a proposal for such re -subdivision or consolidation, will be submitted in
accordance with the Design Guidelines, if any, or any additional rules adopted by the
ACC together with any review fee which is imposed by the ACC in accordance with
Section 7.02(c) to the ACC at the offices of Declarant, at such address as may hereafter be
designated in writing from time to time. No re -subdivision or consolidation will be
made, nor any Improvement placed or allowed on any Lot, until the plans and
specifications and the builder which the Owner intends to use to construct the proposed
structure or Improvement have been approved in writing by a Majority of the members
of the ACC. The ACC may, in reviewing such plans and specifications consider any
information that it deems proper; including, without limitation, any permits,
environmental impact statements or percolation tests that may be required by the ACC
or any other entity; and harmony of external design and location in relation to
surrounding structures, topography, vegetation, and finished grade elevation. The ACC
may postpone its review of any plans and specifications submitted for approval pending
receipt of any information or material which the ACC, in its sole discretion, may require.
Site plans must be approved by the ACC prior to the clearing of any Lot, or the
constriction of any Improvements. The ACC may refuse to approve plans and
specifications for proposed Improvements, or for the re -subdivision or consolidation of
any Lot on any grounds that, in the sole and absolute discretion of the ACC, are deemed
sufficient, including, but not limited to, purely aesthetic grounds.
(c) Design Guidelines. Declarant shall have the right, but shall have no
obligation to adopt Design Guidelines and, during the Development Period, will have
the power from time to time, to adopt (unless previously adopted by Declarant), amend,
modify, or supplement the Design Guidelines, if any. Upon expiration or termination of
the Development Period, the ACC, or any sub -committee thereof created pursuant to
Section 7.02(a), will have the power from time to time, to adopt (if not previously
adopted by Declarant), to amend, modify, or supplement the Design Guidelines, if any;
provided, however, that any amendment to the Design Guidelines made by a
sub -committee will only apply to the Improvements under the jurisdiction of such
sub -committee, and during the Development Period, any such amendment,
modification or supplement must be approved in advance and in writing by the
Declarant. In the event of any conflict between the terms and provisions of the Design
Guidelines, if any, and the terms and provisions of this Declaration, the terms and
provisions of this Declaration will control. In addition, the ACC will have the power
and authority to impose a fee for the review of plans, specifications and other
documents and information submitted to it pursuant to the terms of this Declaration.
Such charges will be held by the ACC and used to defray the administrative expenses
incurred by the ACC in performing its duties hereunder; provided, however, that any
excess funds held by the ACC will be distributed to the Association at the end of each
calendar year. The ACC will not be required to review any plans until a complete
submittal package, as required by this Declaration and the Design Guidelines, is
assembled and submitted to the ACC. The ACC will have the authority to adopt such
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additional procedural and substantive rules and guidelines (including, without
limitation, the imposition of any requirements for certificates of compliance or
completion relating to any Improvement and the right to approve in advance any
contractor selected for the construction of Improvements), not in conflict with this
Declaration, as it may deem necessary or appropriate in connection with the
performance of its duties hereunder.
(d) Actions of the Architectural Control Committee. The ACC may, by
resolution unanimously adopted in writing, designate one or more of its members, or an
agent acting on its behalf, to take any action or perform any duties for and on behalf of
the ACC, except the granting of variances. In the absence of such designation, the vote
of a Majority of all of the members of the ACC taken at a duly constituted meeting will
constitute an act of the ACC.
(e) Failure to Act. In the event that any plans and specifications are
submitted to the ACC as provided herein, and the ACC fails either to approve or reject
such plans and specifications for a period of sixty (60) days following such submission,
rejection of such plans and specifications by the ACC will be presumed. In furtherance,
and not in limitation, of the foregoing, any failure of the ACC to act upon a request for a
variance will not be deemed a consent to such variance, and the ACC's written approval
of all requests for variances will be expressly required.
(f) Variances. The ACC may grant variances from compliance with any of
the provisions of the Design Guidelines, if any, or this Declaration, when, in the opinion
of the ACC, in its sole and absolute discretion, such variance is justified. All variances
must be evidenced in writing and must be signed by at least a Majority of the members
of the ACC. Each variance must also be Recorded; provided however, that failure to
record a variance will not affect the validity thereof or give rise to any claim or cause of
action against the ACC, including the Declarant or its designee, the Association, or the
Board. If a variance is granted, no violation of the covenants, conditions, or restrictions
contained in this Declaration or the Design Guidelines, if any, will be deemed to have
occurred with respect to the matter for which the variance was granted. The granting of
such variance will not operate to waive or amend any of the terms and provisions of this
Declaration or the Design Guidelines, if any, for any purpose except as to the particular
property and in the particular instance covered by the variance, and such variance will
not be considered to establish a precedent for any future waiver, modification, or
amendment of the terms and provisions of this Declaration or the Design Guidelines, if
any.
(g) Duration of Approval. The approval of the ACC of any plans and
specifications, and any variances granted by the ACC, will be valid for a period of one
hundred and twenty (120) days only. If construction in accordance with such plans and
specifications or variance is not commenced within such one hundred and twenty (120)
day period and diligently prosecuted to completion within either: (i) one year after
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issuance of approval of such plans and specifications; or (ii) such other period thereafter
as determined by the ACC, in its sole and absolute discretion, the Owner will be
required to resubmit such plans and specifications or request for a variance to the ACC,
and the ACC will have the authority to re-evaluate such plans and specifications in
accordance with this Section 7.02(g) and may, in addition, consider any change in
circumstances which may have occurred since the time of the original approval.
(h) No Waiver of Future Approvals. The approval of the ACC to any plans
or specifications for any work done or proposed in connection with any matter requiring
the approval or consent of the ACC will not be deemed to constitute a waiver of any
right to withhold approval or consent as to any plans and specifications on any other
matter, subsequently or additionally submitted for approval by the same or a different
person, nor will such approval or consent be deemed to establish a precedent for future
approvals by the ACC.
(i) Non -Liability of Committee Members. NEITHER DECLARANT, THE
BOARD, THE ARCHITECTURAL CONTROL COMMITTEE, NOR ANY MEMBER
WILL BE LIABLE TO ANY OWNER OR TO ANY OTHER PERSON FOR ANY LOSS,
DAMAGE OR INJURY ARISING OUT OF THE PERFORMANCE OF THE
ARCHITECTURAL CONTROL COMMITTEE'S DUTIES UNDER THIS
DECLARATION.
ARTICLE 8
MORTGAGE PROVISIONS
The following provisions are for the benefit of holders, insurers and guarantors of first
Mortgages on Lots within the Property. The provisions of this Article apply to this Declaration
and the Bylaws of the Association.
8.01 Notice of Action. An institutional holder, insurer, or guarantor of a first
Mortgage which provides a written request to the Association (such request to state the name
and address of such holder, insurer, or guarantor and the street address of the Lot to which its
Mortgage relates (thereby becoming an "Eligible Mortgage Holder")), will be entitled to timely
written notice of:
(a) Any condemnation loss or any casualty loss which affects a material
portion of the Property or which affects any Lot on which there is an eligible Mortgage
held, insured, or guaranteed by such Eligible Mortgage Holder; or
(b) Any delinquency in the payment of assessments or charges owed for a
Lot subject to the Mortgage of such Eligible Mortgage Holder, where such delinquency
has continued for a period of sixty (60) days, or any other violation of the Restrictions
relating to such Lot or the Owner or Resident which is not cured within sixty (60) days;
or
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(c) Any lapse, cancellation, or material modification of any insurance policy
maintained by the Association.
8.02 Examination of Books. The Association will permit Mortgagees to examine the
books and records of the Association during normal business hours.
8.03 Taxes, Assessments and Charges. All taxes, assessments and charges that may
become liens prior to first lien mortgages under Applicable Law will relate only to the
individual Lots and not to any other portion of the Property.
ARTICLE 9
GENERAL PROVISIONS
9.01 Term. The terms, covenants, conditions, restrictions, easements, charges, and
liens set out in this Declaration will run with and bind the Property, and will inure to the benefit
of and be enforceable by the Association, and every Owner, including Declarant, and their
respective legal representatives, heirs, successors, and assigns, for a term beginning on the date
this Declaration is Recorded, and continuing through and including January 1, 2074, after which
time this Declaration will be automatically extended for successive periods of ten (10) years
unless a change (the word "change" meaning a termination, or change of term or renewal term)
is approved in a resolution adopted by Members entitled to cast at least sixty-seven percent
(67%) of the total number of votes of the Association, voting in person or by proxy at a meeting
duly called for such purpose, written notice of which will be given to all Members at least thirty
(30) days in advance and will set forth the purpose of such meeting; provided, however, that
such change will be effective only upon the Recording of a certified copy of such resolution. The
foregoing sentence shall in no way be interpreted to mean sixty-seven percent (67%) of a
quorum as established pursuant to the Bylaws. Notwithstanding any provision in this
Section 9.01 to the contrary, if any provision of this Declaration would be unlawful, void, or
voidable by reason of any Applicable Law restricting the period of time that covenants on land
may be enforced, such provision will expire twenty-one (21) years after the death of the last
survivor of the now living descendants, as of the date this Declaration is Recorded, of King
Charles III, King of England.
9.02 Eminent Domain. In the event it becomes necessary for any public authority to
acquire all or any part of the Common Area for any public purpose during the period this
Declaration is in effect, the Board is hereby authorized to negotiate with such public authority
for such acquisition and to execute instruments necessary for that purpose. Should acquisitions
by eminent domain become necessary, only the Board need be made a party, and in any event
the proceeds received will be held by the Association for the benefit of the Owners. In the event
any proceeds attributable to acquisition of Common Area are paid to Owners, such payments
will be allocated on the basis of Assessment Units and paid jointly to the Owners and the
holders of first Mortgages or deeds of trust on the respective Lot.
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9.03 Amendment. This Declaration may be amended or terminated by the Recording
of an instrument executed and acknowledged by: (i) Declarant acting alone; or (ii) by the
president and secretary of the Association setting forth the amendment and certifying that such
amendment has been approved by Declarant (until expiration or termination of the
Development Period) and Members entitled to cast at least sixty-seven percent (67%) of the total
number of votes entitled to be cast by members of the Association. The foregoing sentence shall
in no way be interpreted to mean sixty-seven percent (67%) of a quorum as established
pursuant to the Bylaws. No amendment will be effective without the written consent of
Declarant, its successors or assigns, during the Development Period. No amendment may affect
Declarant's rights under this Declaration without Declarant's written and acknowledged
consent, which must be part of the Recorded amendment instrument.
9.04 Roadway and Utility Easements. Declarant reserves the right to create, locate,
relocate, construct, erect, and maintain or cause to be created, located, relocated, constructed,
erected, and maintained in and on any portion of the Property then owned by Declarant or any
streets maintained by the Association, or areas conveyed to the Association, or areas reserved or
held as Common Area, roadways, sewer lines, water lines, electrical lines and conduits, and
other pipelines, conduits, wires, and any public utility function beneath or above the surface of
the ground with the right of access to the same at any time for the purposes of repair and
maintenance.
9.05 Enforcement. The Association and the Declarant will have the right to enforce,
by a proceeding at law or in equity, the Restrictions. The Association and/or the Declarant may
initiate, defend, or intervene in any action brought to enforce any provision of the Restrictions.
Such right of enforcement will include both damages for and injunctive relief against the breach
of any provision hereof. Every act or omission whereby any provision of the Restrictions is
violated, in whole or in part, is hereby declared to be a nuisance and may be enjoined or abated
by any Owner of a Lot (at such Owner's own expense), Declarant or the Association. Any
violation of any Applicable Law pertaining to the ownership, occupancy, or use of any portion
of the Property is hereby declared to be a violation of this Declaration and subject to all of the
enforcement procedures set forth herein. Failure to enforce any right, provision, covenant, or
condition set forth in the Restrictions will not constitute a waiver of the right to enforce such
right, provision, covenants or condition in the future. Failure of the Declarant or the
Association to enforce the terms and provisions of the Restrictions shall in no event give rise to
any claim or liability against the Declarant, the Association, or any of their partners, directors,
officers, or agents.
9.06 Higher Authority. The terms and provisions of this Declaration are subordinate
to Applicable Law. Generally, the terms and provisions of this Declaration are enforceable to
the extent they do not violate or conflict with Applicable Law.
9.07 Severability. If any provision of this Declaration is held to be invalid by any
court of competent jurisdiction, such invalidity will not affect the validity of any other provision
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of this Declaration, or, to the extent permitted by Applicable Law, the validity of such provision
as applied to any other person or entity.
9.08 Conflicts. If there is any conflict between the provisions of this Declaration, the
Articles, the Bylaws, or any Rules and Regulations adopted pursuant to the terms of such
documents, the provisions of this Declaration, the Articles, the Bylaws, and the Rules and
Regulations, in such order, will govern.
9.09 Gender. Whenever the context so requires, all words herein in the male gender
will be deemed to include the female or neuter gender, all singular words will include the
plural, and all plural words will include the singular
9.10 No Warranty of Enforceability. The Declarant snakes no warranty or
representation as to the present or future validity or enforceability of any restrictive covenants,
terms, or provisions contained in the Declaration. Any Owner acquiring a Lot in reliance on
one or more of such restrictive covenants, terms, or provisions will assume all risks of the
validity and enforceability thereof and, by acquiring the Lot, agrees to hold Declarant harmless
therefrom.
9.11 Acceptance by Owners. Each Owner of a Lot or other real property interest in
the Property, by the acceptance of a deed of conveyance, or each subsequent purchaser, accepts
the same subject to all terms, restrictions, conditions, covenants, reservations, easements, liens
and charges, and the jurisdiction rights and powers created or reserved by this Declaration or to
whom this Declaration is subject, and all rights, benefits and privileges of every character
hereby granted, created, reserved or declared. Furthermore, each Owner agrees that no
assignee or successor to Declarant hereunder will have any liability for any act or omission of
Declarant which occurred prior to the effective date of any such succession or assignment. All
impositions and obligations hereby imposed will constitute covenants running with the land
within the Property, and will bind any person having at any time any interest or estate in the
Property, and will inure to the benefit of each Owner in like manner as though the provisions of
this Declaration were recited and stipulated at length in each and every deed of conveyance.
9.12 Damage and Destruction. The Association shall undertake the following actions
subsequent to damage or destruction to all or any part of the Common Area covered by
insurance:
(a) Claims. Promptly after damage or destruction by fire or other casualty to
all or any part of the Common Area covered by insurance, the Board, or its duly
authorized agent, will proceed with the filing and adjustment of all claims arising under
such insurance and obtain reliable and detailed estimates of the cost of repair of the
damage. Repair, as used in this Section 9.10(a), means repairing or restoring the
Common Area to substantially the same condition as existed prior to the fire or other
casualty.
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(b) Repair Obligations. Any damage to or destruction of the Common Area
will be repaired unless a Majority of the Board decides within sixty (60) days after the
casualty not to repair. If for any reason either the amount of the insurance proceeds to
be paid as a result of such damage or destruction, or reliable and detailed estimates of
the cost of repair, or both, are not made available to the Association within said period,
then the period will be extended until such information will be made available.
(c) Restoration. In the event that it should be determined by the Board that
the damage or destruction of the Common Area will not be repaired and no alternative
Improvements are authorized, then the affected portion of the Common Area will be
restored to its natural state and maintained as an undeveloped portion of the Common
Area by the Association in a neat and attractive condition.
(d) Special Assessment. If insurance proceeds are paid to restore or repair
any damaged or destroyed Common Area, and such proceeds are not sufficient to
defray the cost of such repair or restoration, the Board may levy a Special Assessment, as
provided in Article 6, against all Owners. Additional Assessments may be made in like
manner at any time during or following the completion of any repair.
(e) Proceeds Payable to Owners. In the event that any proceeds of insurance
policies are paid to Owners as a result of any damage or destruction to any Common
Area, such payments will be allocated based on Assessment Units and paid jointly to the
Owners and the holders of Mortgages or deeds of trust on their Lots.
9.13 No Partition. Except as may be permitted in this Declaration or amendments
thereto, no physical partition of the Common Area or any part thereof will be permitted, nor
will any person acquiring any interest in the Property or any part thereof seek any such judicial
partition unless the portion of the Property or the Common Area in question has been removed
from the provisions of this Declaration pursuant to Section 11.04 below. This Section 9.13 will
not be construed to prohibit the Board from acquiring and disposing of tangible personal
property or from acquiring title to real property that may or may not be subject to this
Declaration, nor will this provision be constructed to prohibit or affect the creation of a
condominium regime in accordance with Applicable Law.
9.14 Notices. Any notice permitted or required to be given to any person by this
Declaration will be in writing and may be delivered either personally or by mail, or as
otherwise required by Applicable Law. If delivery is made by mail, it will be deemed to have
been delivered on the third (3«') day (other than a Sunday or legal holiday) after a copy of the
same has been deposited in the United States mail, postage prepaid, addressed to the person at
the address given by such person to the Association for the purpose of service of notices. Such
address may be changed from time to time by notice in writing given by such person to the
Association.
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9.15 View Impairment. Neither Declarant nor the Association guarantee or represent
that any view over and across the Lots, or any open space or Common Area within the Property
will be preserved without impairment. Neither the Declarant, the ACC, nor the Association
shall have any obligation to relocate, prune, or thin trees, or perform other landscaping. The
Association (with respect to any Common Area) will have the right to add trees and other
landscaping from time to time, subject to Applicable Law. There shall be no express or implied
easements for view purposes or for the passage of light and air.
9.16 Safety and Security. Each Owner and Resident of a Lot, and their respective
guests and invitees, shall be responsible for their own personal safety and the security of their
property within the Property or the Common Area. The Association may, but shall not be
obligated to, maintain or support certain activities within the Property or the Common Area
designed to promote or enhance the level of safety or security which each person provides for
himself or herself and his or her property. However, neither the Association nor the Declarant,
nor their Directors, employees, or agents, shall in any way be considered insurers or guarantors
of safety or security within the Property, or the Common Area, nor shall either be held liable for
any loss or damage by reason of failure to provide adequate security or ineffectiveness of
security measures undertaken. No representation or warranty is made that any systems or
measures, including security monitoring systems or any mechanism or system for limiting
access to the Property or the Common Area, cannot be compromised or circumvented; or that
any such system or security measures undertaken will in all cases prevent loss or provide the
detection or protection for which the system is designed or intended. Each Owner
acknowledges, understands, and shall be responsible for informing any Residents of such
Owner's Lot that the Association, its Board, its employees, agents, and the Declarant are not
insurers or guarantors of security or safety and that each person within the Property assumes all
risks of personal injury and loss or damage to property, including any residences or
Improvements constructed upon any Lot and the contents thereof, resulting from acts of third
parties.
9.17 Notice Concerning Mineral Reservation. Each Owner is hereby informed that
Declarant has conveyed to an affiliated entity all right, title and interest, if any, of Declarant in
all minerals, resources, and groundwater, including but not limited to oil, gas and
hydrocarbons, in, on or under, and/or that may be produced from, the Property. The
conveyance instrument ("Mineral Deed") includes a provision whereby the owner of the
minerals, resources and groundwater, if any, conveyed by such Mineral Deed will not be
permitted to use the surface of the Property (to a depth of thirty feet below the finished grade of
the Property) for the purpose of exploring for, developing or producing such minerals,
resources and groundwater on and after the date of the first conveyance of a completed
residence on the Property (the "Surface Waiver"). This Surface Waiver applies only to the
interest, if any, in the minerals, resources and groundwater conveyed by the Mineral Deed.
(The minerals, resources and groundwater, or some portion thereof or some interest therein,
may have been conveyed or reserved by third parties prior to Declarant's conveyance to its
affiliate, and any such portion or interest would not be affected by the Surface Waiver contained
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in the Mineral Deed. No representation or warranty, express or implied, is made as to the
ownership of the minerals, resources and groundwater or any portion thereof or any interest
therein. Further, no representation or warranty, express or implied, is made with respect to
whether the owner(s), if any, of any interest in or portion of the minerals, resources and
groundwater not conveyed by the Mineral Deed has/have waived their rights to use the surface
of the Property or the terms of any such waiver of surface rights.) The Surface Waiver in the
Mineral Deed does not prevent the owner of the minerals, resources, and groundwater
conveyed by the Mineral Deed from exploring, developing, drilling, producing, withdrawing,
capturing, pumping, extracting, mining or transporting the minerals, resources, and
groundwater by pooling, unitization, directional drilling or any other manner or method that
does not require entry upon the surface of the Property. Each Owner should carefully review
the title commitment delivered in connection with its acquisition of a Lot to determine the full
extent to which the Mineral Deed and any other mineral conveyances affect the Lots and the
Property. In addition, if this Declaration includes a prohibition against mineral, resource,
and/or groundwater extraction, drilling, or mining, such provision is not binding on the
owner(s) of the minerals, resources and groundwater.
ARTICLE 10
EASEMENTS
10.01 Right of Ingress and Egress. Declarant, its agents, employees, designees,
successors and assigns will have a right of ingress and egress over and the right of access to the
Common Area to the extent necessary to use the Common Area and the right to such other
temporary uses of the Common Area as may be required or reasonably desirable (as
determined by Declarant in its sole discretion) in connection with the construction and
development of the Property. The Property shall be subject to a perpetual non-exclusive
easement for the installation and maintenance of, including the right to read meters, service or
repair lines and equipment, and to do everything and anything necessary to properly maintain
and furnish the Community Systems and the facilities pertinent and necessary to the same,
which easement shall run in favor of Declarant. Declarant shall have the right, but not the
obligation, to install and provide the Community Systems and to provide the services available
through the Community Systems to any and all Lots within the Property. Neither the
Association nor any Owner shall have any interest therein. Any or all of such services may be
provided either directly through the Association and paid for as part of the Assessments or
directly to Declarant, any affiliate of Declarant, or a third party, by the Owner who receives the
services. The Community Systems shall be the property of Declarant unless transferred by
Declarant, whereupon any proceeds of such transfer shall belong to Declarant. Declarant shall
have the right but not the obligation to convey, transfer, sell or assign all or any portion of the
Community Systems or all or any portion of the rights, duties or obligations with respect
thereto, to the Association or to any person or entity. The rights of Declarant with respect to the
Community Systems installed by Declarant and the services provided through such
Community Systems are exclusive, and no other person or entity may provide such services
through the Community Systems installed by Declarant without the prior written consent of
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Declarant. In recognition of the fact that interruptions in cable television and other Community
Systems services will occur from time to time, no person or entity described above shall in any
manner be liable, and no user of any Community System shall be entitled to any refund, rebate,
discount or offset in applicable fees, for any interruption in Community Systems services,
regardless of whether or not same is caused by reasons within the control of the then -provider
of such services.
10.02 Reserved Easements. All dedications, limitations, restrictions and reservations
shown on any Plat and all grants and dedications of easements, rights -of -way, restrictions and
related rights made by Declarant or any third party prior to the Property becoming subject to
this Declaration are incorporated herein by reference and made a part of this Declaration for all
purposes as if fully set forth herein, and will be construed as being adopted in each and every
contract, deed or conveyance executed or to be executed by or on behalf of Declarant. Declarant
reserves the right to relocate, make changes in, and additions to said easements, rights -of -way,
dedications, limitations, reservations and grants for the purpose of most efficiently and
economically developing the Property.
10.03 Utility Easements. Declarant, during the Development Period, and the Board
thereafter, may grant easements over and across the Lots and Common Areas to the extent
necessary or required to provide utilities to the Lots, Common Area and any other property
owned by the Declarant; provided, however, that such easements do not unreasonably interfere
with the use of any residence for residential purposes. A company or entity, public or private,
furnishing utility service to the Property, is granted an easement over the Property, for ingress,
egress, meter reading, installation, maintenance, repair, or replacement of utility lines and
equipment, and to do anything else necessary to properly maintain and furnish utility service to
the Property. Utilities may include, but are not limited to, water, sewer, trash removal,
electricity, gas, telephone, electronic communications and internet, master or cable television
and security.
10.04 Subdivision Entry and Fencing Easement. Declarant reserves for itself and the
Association, an easement over and across the Property and any Common Area for the
installation, maintenance, repair or replacement of certain subdivision entry facilities, walls,
and/or fencing which serves the Property, the Common Area or any other property owned by
the Declarant. Declarant will have the right, from time to time, to Record a written notice which
identifies the subdivision entry facilities fencing to which the easement reserved hereunder
applies. Declarant may designate all or any portion of the subdivision entry facilities as
Common Area by Recorded written notice. The exercise of the easements reserved hereunder
will not extend to permitting entry into any residence, nor will it unreasonably interfere with
the use of any Lot or residence or Improvement constructed thereon.
10.05 Landscape and Monument Sign Easement. Declarant hereby reserves for itself
and the Association, an easement over and across the Property and the Common Area for the
installation, maintenance, repair or replacement of signs, landscaping, and/or monument signs
which serve the Property, the Common Area or any other property owned by the Declarant.
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Declarant will have the right, from time to time, to Record a written notice, which identifies
those portions of the Property, Common Area or property owned by the Declarant to which the
easement reserved hereunder applies. Declarant may designate all or any portion of the
easement areas reserved hereunder as Common Area. The exercise of the easements reserved
hereunder will not extend to permitting entry into any residence, nor will it unreasonably
interfere with the use of any Lot or residence or Improvement constructed thereon.
10.06 Declarant as Attorney in Fact. To secure and facilitate Declarant's exercise of the
rights reserved by Declarant pursuant to the terms and provisions of this Declaration, each
Owner, by accepting a deed to a Lot and each Mortgagee, by accepting the benefits of a
Mortgage against a Lot, and any other third party by acceptance of the benefits of a mortgage,
deed of trust, mechanic's lien contract, mechanic's lien claim, vendor's lien and/or any other
security interest against any Lot, will thereby be deemed to have appointed Declarant such
Owner's, Mortgagee's, and third party's irrevocable attorney -in -fact, with full power of
substitution, to do and perform, each and every act permitted or required to be performed by
Declarant pursuant to the terms of this Declaration. The power thereby vested in the Declarant
as attorney -in -fact for each Owner, Mortgagee and/or third party, will be deemed, conclusively,
to be coupled with an interest and will survive the dissolution, termination, insolvency,
bankruptcy, incompetency and death of an Owner, Mortgagee and/or third party and will be
binding upon the legal representatives, administrators, executors, successors, heirs and assigns
of each such party. The aforesaid power shall be vested in Declarant, its successors and assigns,
for a period of twenty-five (25) years from the date the first Lot is conveyed to an individual
purchaser, or until the expiration or termination of the Development Period, whichever occurs
first. Declarant hereby reserves for itself, its successors and assigns the right to execute on
behalf of each Owner, Mortgagee, and third party claiming a legal or equitable interest in the
Common Area, any such agreements, documents, amendments or supplements to the
Restrictions which may be required by any institutional or governmental lender, purchaser,
insurer or guarantor of mortgage loans (including, for example, the Federal Home Loan
Mortgage Corporation) or by any governmental or quasi -governmental agency having
regulatory jurisdiction over the Common Area or by any title insurance company selected by
Declarant to insure title to any portion of the Common Area.
10.07 Easement to Inspect and Right to Correct. For a period of ten (10) years after the
expiration of the Development Period, Declarant reserves for itself and for the Declarant's
architect, engineer, other design professionals, builder and general contractor the right, but not
the duty, to inspect, monitor, test, redesign, correct, and relocate any structure, Improvement, or
condition that may exist on any portion of the Property, including the Lots, and a perpetual
nonexclusive easement of access throughout the Property to the extent reasonably necessary to
exercise this right. The party exercising such rights will promptly repair, at its sole expense, any
damage resulting from the exercise of this right. By way of illustration but not limitation,
relocation of mechanical or electrical facilities may be warranted by a change of circumstance,
imprecise siting of the original facilities, or the desire or necessity to comply more fully with
Applicable Law. This Section 10.07 may not be construed to create a duty for Declarant, the
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Association, or any architect, engineer, other design professionals, builder or general contractor,
and may not be amended without Declarant's advanced written consent. In support of this
reservation, each Owner, by accepting an interest in or title to a Lot, hereby grants to Declarant
an easement of access and entry over, across, under, and through the Property, including
without limitation, all Common Areas and the Owner's Lot and all Improvements thereon for
the purposes contained in this Section 10.07.
ARTICLE 11
DEVELOPMENT RIGHTS
11.01 Development by Declarant. It is contemplated that the Property will be
developed pursuant to a plan, which may, from time to time, be amended or modified.
Declarant reserves the right, but will not be obligated, to pursue the development, construction
and marketing of the Property, the right to direct the size, shape, and composition of the
Property, the right to create and/or designate Lots and Common Areas and to subdivide all or
any portion of the Property pursuant to the terms of this Section 11.01, subject to any limitations
imposed on portions of the Property by any applicable Plat. These rights may be exercised with
respect to any portions of the Property and the Common Area. As each area is developed or
dedicated, Declarant may designate the use, classification and such additional covenants,
conditions and restrictions as Declarant may deem appropriate for that area.
11.02 Special Declarant Rights. Notwithstanding any provision of this Declaration to
the contrary, at all times, Declarant will have the right and privilege: (i) to erect and maintain
advertising signs (illuminated or non -illuminated), sales flags, other sales devices and banners
for the purpose of aiding the sale of Lots in the Property; (ii) to maintain Improvements upon
Lots as sales, model, management, business and construction offices; and (iii) to maintain and
locate construction trailers and construction tools and equipment within the Property and the
Common Area. The construction, placement or maintenance of Improvements by Declarant will
not be considered a nuisance, and Declarant hereby reserves the right and privilege for itself to
conduct the activities enumerated in this Section 11.02 until twenty-four (24) months after
expiration or termination of the Development Period.
11.03 Addition of Land. Declarant may, at any time and from time to time, add
additional lands to the Property. Upon the Recording of a notice of addition of land, such land
will be considered part of the Property for purposes of this Declaration, and such added lands
will be considered part of the Property subject to this Declaration and the terms, covenants,
conditions, restrictions and obligations set forth in this Declaration, and the rights, privileges,
duties and liabilities of the persons subject to this Declaration will be the same with respect to
such added land as with respect to the lands originally covered by this Declaration. To add
lands to the Property, Declarant will be required only to Record a notice of addition of land
containing the following provisions:
(a) A reference to this Declaration, which reference will state the document
number or volume and initial page number wherein this Declaration is Recorded;
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(b) A statement that such land will be considered Property for purposes of
this Declaration, and that all of the terms, covenants, conditions, restrictions and
obligations of this Declaration will apply to the added land; and
(c) A legal description of the added land.
11.04 Withdrawal of Land. Declarant may, at any time and from time to time, reduce
or withdraw from the Property, and remove and exclude from the burden of this Declaration
and the jurisdiction of the Association any portion of the Property. Upon any such withdrawal
and removal this Declaration and the covenants conditions, restrictions and obligations set forth
herein will no longer apply to the portion of the Property withdrawn. To withdraw lands from
the Property hereunder, Declarant will be required only to Record a notice of withdrawal of
land containing the following provisions:
(a) A reference to this Declaration, which reference will state the document
number or volume and initial page number wherein this Declaration is recorded;
(b) A statement that the provisions of this Declaration will no longer apply to
the withdrawn land; and
(c) A legal description of the withdrawn land.
11.05 Notice of Plat Recordation. Declarant may, at any time and from time to time,
file a notice of plat recordation (a "Notice of Plat Recordation"). A Notice of Plat Recordation
is Recorded for the purpose of more clearly identifying specific Lots subject to the terms and
provisions of this Declaration after portions of the Property is made subject to a Plat. Unless
otherwise provide in the Notice of Plat Recordation, portions of the Property included in the
Plat identified in the Notice of Plat Recordation, but not shown as a residential Lot on such Plat,
shall be automatically withdrawn from the terms and provisions of this Declaration (without
the necessity of complying with the withdrawal provisions set forth in Section 11.04). Declarant
shall have no obligation to Record a Notice of Plat Recordation and failure to Record a Notice of
Plat Recordation shall in no event remove any portion of the Property from the terms and
provisions of this Declaration.
11.06 Assignment of Declarant's Rights. Notwithstanding any provision in this
Declaration to the contrary, Declarant may, by written instrument, assign, in whole or in part,
any of its privileges, exemptions, rights and duties under this Declaration to any person or
entity and may permit the participation, in whole, in part, exclusively, or non -exclusively, by
any other person or entity in any of its privileges, exemptions, rights and duties hereunder.
ARTICLE 12
DISPUTE RESOLUTION
This Article 12 is intended to encourage the resolution of disputes involving the
Property. A dispute regarding the Lots, Common Area, and/or Improvements can create
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significant financial exposure for the Association and its Members, interfere with the resale and
refinancing of Lots, and increase strife and tension among the Owners, the Board and the
Association's management. Since disputes may have a direct effect on each Owner's use and
enjoyment of their Lot and the Common Area, this Article 12 requires Owner transparency and
participation in certain circumstances. Transparency means that the Owners are informed in
advance about a dispute, the proposed arrangement between the Association and a law firm or
attorney who will represent the Association in the dispute, and that each Owner will have an
opportunity to participate in the decision -making process prior to initiating the dispute
resolution process.
12.01 Introduction and Definitions. The Association, the Owners, Declarant, all
persons subject to this Declaration, and each person not otherwise subject to this Declaration
Who agrees to submit to this Article 12 by written instrument delivered to the Claimant, which
may include, but is not limited to, a Homebuilder, a general contractor, sub -contractor, design
professional, or other person who participated in the design or construction of Lots, Common
Area or any Improvement within, serving or forming a part of the Property (individually, a
"Party" and collectively, the "Parties") agree to encourage the amicable resolution of disputes
involving the Property and the Common Area to avoid the emotional and financial costs of
litigation and arbitration if at all possible. Accordingly, each Party hereby covenants and agrees
that this Article applies to all Claims as hereafter defined. This Article 12 may only be amended
with the prior written approval of the Declarant, the Association (acting through a Majority of
the Board), and Owners holding 100% of the votes in the Association. As used in this Article
only, the following words, when capitalized, have the following specified meanings:
(i) "Claim" means:
(A) Claims relating to the rights and/or duties of Declarant, the
Association, or the ACC, under the Restrictions.
(B) Claims relating to the acts or omissions of the Declarant,
the Association or a Board member or officer of the
Association during Declarant's control and administration
of the Board, and any claim asserted against the ACC.
(C) Claims relating to the design or construction of the
Common Area or any Improvements located within or on
the Property.
(ii) "Claimant" means any Party having a Claim against any other
Party.
(iii) "Respondent" means any Party against which a Claim has been
asserted by a Claimant.
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12.02 Mandatory Procedures. Claimant may not initiate any proceeding before any
judge, jury, arbitrator or any judicial or administrative tribunal seeking redress of resolution of
its Claim until Claimant has complied with the procedures of this Article. As provided in
Section 12.08 below, a Claim must be resolved by binding arbitration.
12.03 Claim Affecting Common Areas. In accordance with Section 4.12 of this
Declaration, the Association does not have the power or right to institute, defend, intervene in,
settle, or compromise litigation, arbitration or other proceedings: (i) in the name of or on behalf
of any Lot Owner (whether one or more); or (ii) pertaining to a Claim, as defined in Section 12.01
above, relating to the design or construction of Improvements on a Lot (whether one or more).
Additionally, no Lot Owner shall have the power or right to institute, defend, intervene in,
settle or compromise litigation, arbitration or other proceedings relating to the design or
construction of the Common Area. Each Lot Owner, by accepting an interest in or to title to a
Lot, hereby grants to the Association the exclusive right to institute, defend, intervene in, settle
or compromise litigation, arbitration or other proceedings relating to the design or construction
of the Common Area. In the event the Association asserts a Claim related to the Common Area,
as a precondition to providing the Notice defined in Section 12.05, initiating the mandatory
dispute resolution procedures set forth in this Article 12, or taking any other action to prosecute
a Claim related to the Common Area, the Association must:
(a) Obtain Owner Approval of Engagement.
The requirements related to Owner approval set forth in this Section 12.03(a) are
intended to ensure that the Association and the Owners approve and are fully informed of the
financial arrangements between the Association and a law firm or attorney engaged by the
Association to prosecute a Claim relating to the design or construction of the Common Area.
The engagement agreement between the Association and the law firm or attorney may include
requirements that the Association pay costs, fees, and expenses to the law firm or attorney
which will be paid through Assessments levied against Owners. The financial agreement
between the Association and the law firm or attorney may also include obligations related to
payment, and the conditions and circumstances when the payment obligations arise, if the
relationship between the Association and the law firm or attorney is terminated or if the
Association agrees to settle the Claim. In addition, the financial arrangement between the
Association and the law firm or attorney may include additional costs, expenses, and interest
charges. This financial obligation can be significant. The Board may not engage a law firm or
attorney to prosecute a Claim relating to the design or construction of the Common Area or
execute a written agreement between the Association and a law firm or attorney for the
purpose of prosecuting a Claim relating to the design or construction of Common Area unless
the law firm or attorney and the financial arrangements between the Association and the law
firm or attorney are approved by the Owners in accordance with this Section 12.03(a).
Unless otherwise approved by Members holding eighty percent (80%) of the votes in the
Association, the Association, acting through its Board, shall in no event have the authority to
engage a law firm or attorney to prosecute a Claim relating to the design or construction of the
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Common Area if the agreement between the Association and law firm or attorney includes any
provision or requirement that would obligate the Association to pay any costs, expenses, fees,
or other charges to the law firm or attorney, including but not limited to, costs, expenses, fees,
or other charges payable by the Association: (i) if the Association terminates the engagement
with the law firm or attorney or engages another firm or third -party to assist with the Claim;
(ii) if the Association agrees to settle the Claim for a cash payment or in exchange for repairs or
remediation performed by the Respondent or any other third -party; (iii) if the Association
agrees to pay interest on any costs or expenses incurred by the law firm or attorney; and/or
(iv) for consultants, expert witnesses, and/or general contractors hired by the law firm or
attorney. For avoidance of doubt, it is intended that Members holding eighty percent (80%) of
the votes in the Association must approve the law firm and attorney who will prosecute the
Claim and the written agreement between the Association and the law firm and/or attorney.
The approval of the Members required under this Section 12.03(a) must be obtained at a
meeting of Members called in accordance with the Bylaws. The notice of Member meeting will
be provided pursuant to the Bylaws but the notice must also include: (a) the name of the law
firm and attorney; (b) a copy of the proposed written agreement between the Association and
the law firm and/or attorney; (c) a narrative summary of the types of costs, expenses, fees, or
other charges that may be required to be paid by the Association; (d) the conditions upon which
such types of costs, expenses, fees, or other charges are required to be paid by the Association;
(e) an estimate of the costs, expenses, fees, or other charges that may be required to be paid by
the Association if the conditions for payment occur, which estimate shall be expressed as a
range for each type of cost, expense, fee, or other charge; and (f) a description of the process the
law firm and/or attorney will use to evaluate the Claim and whether destructive testing will be
required (i.e., the removal of all or portions of the Common Area or Improvements on the
Property). If destructive testing will be required or is likely to occur, the notice shall include a
description of the destructive testing, likely locations of the destructive testing, whether the
Owner's use of their Lots or the Common Area will be affected by such testing, and if the
destructive testing occurs the means or method the Association will use to repair the Common
Area or Improvements affected by such testing and the estimated costs thereof. The notice
required by this paragraph must be prepared and signed by a person other than the law firm or
attorney who is a party to the proposed agreement being approved by the Members. In the
event Members holding eighty percent (80%) of the votes in the Association approve the law
firm and/or attorney who will prosecute the Claim and the written agreement between the
Association and the law firm and/or attorney, the Board shall have the authority to engage the
law firm and/or attorney and enter into the written agreement approved by the Members.
(b) Provide Notice of the Inspection. As provided in Section 12.03(c) below, a
Common Area Report is required which is a written inspection report issued by the
Inspection Company. Before conducting an inspection that is required to be
memorialized by the Common Area Report, the Association must have provided at least
ten (10) days prior written notice of the date on which the inspection will occur to each
Respondent which notice shall identify the Inspection Company preparing the Common
SHILOH GROVE
DECLARATION OF COVENANTS, CONDITIONS AND RES"FRICTIONS
4889-7407-9130v.3 52919-618
Area Report, the specific Common Areas to be inspected, and the date and time the
inspection will occur. Each Respondent may attend the inspection, personally or
through an agent.
(c) Obtain a Common Area Report.
The requirements related to the Common Area Report set forth in this Section 12.03(c)
are intended to provide assurance to the Claimant, Respondent, and the Owners that the
substance and conclusions of the Common Area Report and recommendations are not affected
by influences that may compromise the professional judgement of the party preparing the
Common Area Report, and to avoid circumstances which would create the appearance that the
professional judgment of the party preparing the Common Area Report is compromised.
Obtain a written independent third -party report for the Common Area (the "Common
Area Report") from a professional engineer licensed by the Arkansas State Board of Licensure
for Professional Engineers and Land Surveyors with an office located in Pulaski County,
Arkansas (the "Inspection Company"). The Common Area Report must include: (i) a
description with photographs of the Common Area subject to the Claim; (ii) a description of the
present physical condition of the Common Area subject to the Claim; (iii) a detailed description
of any modifications, maintenance, or repairs to the Common Area performed by the
Association or a third -party, including any Respondent; and (iv) specific and detailed
recommendations regarding remediation and/or repair of the Common Area subject to the
Claim. For the purpose of subsection (iv) of the previous sentence, the specific and detailed
recommendations must also include the specific process, procedure, materials, and/or
improvements necessary and required to remediate and/or repair the deficient or defective
condition identified in the Common Area Report and the estimated costs necessary to effect
such remediation and/or repairs. The estimate of costs required by the previous sentence shall
be obtained from third -party contractors with an office located in Pulaski County, Arkansas,
and each such contractor providing the estimate must hold all necessary licenses as required by
Applicable Law for the work to which the cost estimate relates.
The Common Area Report must be obtained by the Association. The Common Area
Report will not satisfy the requirements of this Section and is not an "independent" report if:
(a) the Inspection Company has an arrangement or other agreement to provide consulting
and/or engineering services with the law firm or attorney that presently represents the
Association or proposes to represent the Association; (b) the costs and expenses for preparation
of the Common Area Report are not required to be paid directly by the Association to the
Inspection Company at the time the Common Area Report is finalized and delivered to the
Association; or (c) the law firm or attorney that presently represents the Association or proposes
to represent the Association has agreed to reimburse (whether unconditional or conditional and
based on the satisfaction of requirements set forth in the Association's agreement with the law
firm or attorney) the Association for the costs and expenses for preparation of the Common
Area Report. For avoidance of doubt an "independent" report means that the Association has
independently contracted with the Inspection Company on an arms -length basis based on
SHILOH GROVE
DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS
4889-7407-9130v.3 52919-618
customary terms for the preparation of engineering reports and that the Association will
directly pay for the report at the time the Common Area Report is finalized and delivered to the
Association.
(d) Provide a Copy of Common Area Report to all Respondents and Owners.
Upon completion of the Common Area Report, and in any event no later than three (3)
days after the Association has been provided a copy of the Common Area Report, the
Association will provide a full and complete copy of the Common Area Report to each
Respondent and to each Owner. The Association shall maintain a written record of each
Respondent and Owner who was provided a copy of the Common Area Report which
will include the date the report was provided. The Common Area Report shall be
delivered to each Respondent by hand -delivery and to each Owner by mail.
(e) Provide a Right to Cure Defects and/or Deficiencies Noted on Common
Area Report. Commencing on the date the Common Area Report has been completed
and continuing for a period of ninety (90) days thereafter, each Respondent shall have
the right to: (i) inspect any condition identified in the Common Area Report; (ii) contact
the Inspection Company for additional information necessary and required to clarify
any information in the Common Area Report; and (iii) correct any condition identified
in the Common Area Report. As provided in Section 10.07 above, the Declarant has an
easement throughout the Property for itself, and its successors, assigns, architects,
engineers, other design professionals, each Homebuilder, other builders, and general
contractors that may be utilized during such ninety (90) day period and any additional
period needed thereafter to correct a condition identified in the Common Area Report.
(f) Hold Owner Meeting and Obtain Approval. In addition to obtaining
approval from Members for the terms of the attorney or law firm engagement
agreement, the Association must obtain approval from Members holding eighty percent
(80%) of the votes in the Association to provide the Notice described in Section 12.05,
initiate the mandatory dispute resolution procedures set forth in this Article12, or take
any other action to prosecute a Claim, which approval from Members must be obtained
at a meeting of Members called in accordance with the Bylaws. The notice of meeting
required hereunder will be provided pursuant to the Bylaws but the notice must also
include: (i) the nature of the Claim, the relief sought, the anticipated duration of
prosecuting the Claim, and the likelihood of success; (ii) a copy of the Common Area
Report; (iii) a copy of any engagement letter between the Association and the law firm
and/or attorney selected by the Association to assert or provide assistance with the
Claim; (iv) a description of the attorney fees, consultant fees, expert witness fees, and
court costs, whether incurred by the Association directly or for which the Association
may be liable as a result of prosecuting the Claim; (v) a summary of the steps previously
taken by the Association to resolve the Claim; (vi) a statement that initiating the lawsuit
or arbitration proceeding to resolve the Claim may affect the market value,
marketability, or refinancing of a Lot while the Claim is prosecuted; and (vii) a
description of the manner in which the Association proposes to fund the cost of
SHILOH GROVE
DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS
4889-7407-9130v.3 529-19-618
prosecuting the Claim. The notice required by this paragraph must be prepared and
signed by a person who is not (a) the attorney who represents or will represent the
Association in the Claim; (b) a member of the law firm of the attorney who represents or
will represent the Association in the Claim; or (c) employed by or otherwise affiliated
with the law firm of the attorney who represents or will represent the Association in the
Claim. In the event Members approve providing the Notice described in Section 12.05,
or taking any other action to prosecute a Claim, the Members holding a Majority of the
votes in the Association, at a special meeting called in accordance with the Bylaws, may
elect to discontinue prosecution or pursuit of the Claim.
12.04 Claim by Lot Owners — Improvements on Lots. Notwithstanding anything
contained herein to the contrary, in the event a warranty is provided to a Lot Owner by the
Declarant or a Homebuilder relating to the design or construction of any Improvements located
on a Lot, then this Article 12 will only apply to the extent that this Article 12 is more restrictive
than such Lot Owner's warranty, as determined in Declarant's sole discretion. If a warranty has
not been provided to a Lot Owner relating to the design or construction of any Improvements
located on a Lot, then this Article 12 will apply. Class action proceedings are prohibited, and no
Lot Owner shall be entitled to prosecute, participate, initiate, or join any litigation, arbitration or
other proceedings as a class member or class representative in any such proceedings under this
Declaration. If a Lot Owner brings a Claim, as defined in Section 12.01, relating to the design or
construction of any Improvements located on a Lot (whether one or more), as a precondition to
providing the Notice defined in Section 12.05, initiating the mandatory dispute resolution
procedures set forth in this Article 12, or taking any other action to prosecute a Claim, the Lot
Owner must:
(a) Provide Notice of the Inspection. As provided in Section 12.04(b) below,
an Owner Improvement Report is required which is a written inspection report issued
by the Inspection Company. Before conducting an inspection that is required to be
memorialized by the Owner Improvement Report, the Owner must have provided at
least ten (10) days prior written notice of the date on which the inspection will occur to
each Respondent which notice shall identify the Inspection Company preparing the
Owner Improvement Report, the Improvements and areas of the Improvements to be
inspected, and the date and time the inspection will occur. Each Respondent may attend
the inspection, personally or through an agent.
(b) Obtain an Owner hnprovement Report.
The requirements related to the Owner Improvement Report set forth in this Section
12.04(b) are intended to provide assurance to the Claimant and Respondent that the substance
and conclusions of the Owner Improvement Report and recommendations are not affected by
influences that may compromise the professional judgement of the party preparing the Owner
Improvement Report, and to avoid circumstances which would create the appearance that the
professional judgment of the party preparing the Owner Improvement Report is compromised.
SHILOH GROVE
DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS
4889-7407-9130v.3 52919-618
Obtain a written independent third -party report for the Improvements (the "Owner
Improvement Report") from an Inspection Company. The Owner Improvement Report must
include: (i) a description with photographs of the Improvements subject to the Claim; (ii) a
description of the present physical condition of the Improvements; (iii) a detailed description of
any modifications, maintenance, or repairs to the Improvements performed by the Owner or a
third -party, including any Respondent; (iv) specific and detailed recommendations regarding
remediation and/or repair of the Improvements. For the purpose of subsection (iv) of the
previous sentence, the specific and detailed recommendations must also include the specific
process, procedure, materials, and/or improvements necessary and required to remediate
and/or repair the deficient or defective condition identified in the Owner Improvement Report
and the estimated costs necessary to effect such remediation and/or repairs. The estimate of
costs required by the previous sentence shall be obtained from third -party contractors with an
office located in Pulaski County, Arkansas, and each such contractor providing the estimate
must hold all necessary licenses as required by Applicable Law for the work to which the cost
estimate relates.
The Owner Improvement Report must be obtained by the Owner. The Owner
Improvement Report will not satisfy the requirements of this Section and is not an
"independent" report if: (a) the Inspection Company has an arrangement or other agreement to
provide consulting and/or engineering services with the law firm or attorney that presently
represents the Owner or proposes to represent the Owner; (b) the costs and expenses for
preparation of the Owner Improvement Report are not directly paid by the Owner to the
Inspection Company no later than the date the Owner Improvement Report is finalized and
delivered to the Owner; or (c) the law firm or attorney that presently represents the Owner or
proposes to represent the Owner has agreed to reimburse (whether unconditional or
conditional and based on the satisfaction of requirements set forth in the Owner's agreement
with the law firm or attorney) the Owner for the costs and expenses for preparation of the
Owner Improvement Report. For avoidance of doubt an "independent" report means that the
Owner has independently contracted with the Inspection Company on an arms -length basis
based on customary terms for the preparation of engineering reports and that the Owner will
directly pay for the report no later than the date the Owner Improvement Report is finalized
and delivered to the Owner.
(c) Provide a Copy of Owner Improvement Report to all Respondents. Upon
completion of the Owner Improvement Report, and in any event no later than three (3)
days after the Owner has been provided a copy of the Owner Improvement Report, the
Owner will provide a full and complete copy of the Owner Improvement Report to each
Respondent. The Owner shall maintain a written record of each Respondent who was
provided a copy of the Owner Improvement Report which will include the date the
report was provided. The Owner Improvement Report shall be delivered to each
Respondent by hand -delivery and to each Owner by mail.
(d) Right to Cure Defects and/or Deficiencies Noted on Owner Improvement
Report. Commencing on the date the Owner Improvement Report has been completed
SHILOH GROVE
DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS
4889-7407-9130v.3 52919-618
and continuing for a period of ninety (90) days thereafter, each Respondent shall have
the right to: (i) inspect any condition identified in the Owner Improvement Report;
(ii) contact the Inspection Company for additional information necessary and required
to clarify any information in the Owner Improvement Report; and (iii) correct any
condition identified in the Owner Improvement Report. As provided in Section 10.07
above, the Declarant has an easement throughout the Property for itself, and its
successors, assigns, architects, engineers, other design professionals, each Homebuilder,
other builders, and general contractors that may be utilized during such ninety (90) day
period and any additional period needed thereafter to correct a condition identified in
the Owner Improvement Report.
(e) Claims Pertaining to the Common Area. Pursuant to Section 12.03 above,
an Owner does not have the power or right to institute, defend, intervene in, settle or
compromise litigation, arbitration or other proceedings relating to the design or
construction of the Common Area. In the event that a court of competent jurisdiction or
arbitrator determines that an Owner does have the power or right to institute, defend,
intervene in, settle or compromise litigation, arbitration or other proceedings relating to
the design or construction of the Common Area, such Owner shall be required, since a
Claim affecting the Common Area could affect all Owners, as a precondition to
providing the Notice defined in Section 12.05, initiating the mandatory dispute
resolution procedures set forth in this Article 12, or taking any other action to prosecute a
Claim, to comply with the requirements imposed by the Association in accordance with
Section 12.03(b) (Provide Notice of Inspection), Section 12.03(c) (Obtain a Common Area
Report), Section 12.03(d) (Provide a Copy of Common Area Report to all Respondents
and Owners), Section 12.03(e) (Provide Right to Cure Defects and/or Deficiencies Noted
on Common Area Report), Section 12.03(fl (Owner Meeting and Approval), and Section
12.05 (Notice).
12.05 Notice. Claimant must notify Respondent in writing of the Claim (the "Notice"),
stating plainly and concisely: (i) the nature of the Claim, including date, time, location, persons
involved, and Respondent's role in the Claim; (ii) the basis of the Claim (i.e., the provision of the
Restrictions or other authority out of which the Claim arises); (iii) what Claimant wants
Respondent to do or not do to resolve the Claim; and (iv) that the Notice is given pursuant to
this Section. The one hundred and twenty (120) day period for mediation set forth in Section
12.07 below is intended to provide the Claimant and Respondent with sufficient time to resolve
the Claim in the event resolution is not accomplished during negotiation. If the Claim is not
resolved during negotiation, mediation pursuant to Section 12.07 is required without regard to
the monetary amount of the Claim.
If the Claimant is the Association, the Notice will also include: (a) if the Claim relates to
the design or construction of the Common Area, a true and correct copy of the Common Area
Report and any and all other reports, studies, analyses, and recommendations obtained by the
Association related to the Common Area; (b) a copy of any engagement letter between the
Association and the law firm and/or attorney selected by the Association to assert or provide
SHILOH GROVE
DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS
4889-7407-9130v.3 52919-618
assistance with the Claim; (c) if the Claim relates to the design or construction of the Common
Area, reasonable and credible evidence confirming that Members holding eighty percent (80%)
of the votes in the Association approved the law firm and attorney and the written agreement
between the Association and the law firm and/or attorney in accordance with Section 12.03(a);
(d) a true and correct copy of the special meeting notice provided to Members in accordance
with Section 12.03(j) above; and (e) reasonable and credible evidence confirming that Members
holding eighty percent (80%) of the votes in the Association approved providing the Notice. If
the Claimant is not the Association and pertains to the Common Areas, the Notice will also
include a true and correct copy of the Common Area Report. If the Claimant is not the
Association and relates to the design or construction of Improvements on a Lot, the Notice will
also include a true and correct copy of the Owner Improvement Report.
12.06 Negotiation. Claimant and Respondent will make every reasonable effort to
meet in person to resolve the Claim by good faith negotiation. Within sixty (60) days after
Respondent's receipt of the Notice, Respondent and Claimant will meet at a mutually
acceptable place and time to discuss the Claim. If the Claim involves all or any portion of the
Property, then at such meeting or at some other mutually -agreeable time, Respondent and
Respondent's representatives will have full access to the Property that is subject to the Claim for
the purposes of inspecting the Property.
12.07 Mediation. If the parties negotiate, but do not resolve the Claim through
negotiation within one -hundred twenty (1.20) days from the date of the Notice (or within such
other period as may be agreed on by the parties), Claimant will have thirty (30) additional days
within which to submit the Claim to mediation Linder the auspices of a mediation center or
individual mediator on which the parties mutually agree. The mediator must have at least five
(5) years of experience serving as a mediator and must have technical knowledge or expertise
appropriate to the subject matter of the Claim. If Claimant does not submit the Claim to
mediation within the 30-day period, Respondent will submit the Claim to mediation in
accordance with this Section 12.07. If the Parties do not settle the Clailn within thirty (30) days
after submission to mediation, Respondent or Claimant may initiate arbitration proceedings in
accordance with Section 12.08.
12.08 Binding Arbitration -Claims. All Claims must be settled by binding arbitration.
Claimant or Respondent may, by summary proceedings (e.g., a plea in abatement or motion to
stay further proceedings), bring an action in court to compel arbitration of any Claim not
referred to arbitration as required by this Section 12.08.
(a) Governing Rules. If a Claim has not been resolved after mediation in
accordance with Section 12.07, the Claim will be resolved by binding arbitration in
accordance with the terms of this Section 12.08 and the American Arbitration Association
(the "AAA") Construction Industry Arbitration Rules and Mediation Procedures and, if
applicable, the rules contained in the AAA Supplementary Procedures for Consumer
Related Disputes, as each are supplemented or modified by the AAA (collectively, the
Construction Industry Arbitration Rules and Mediation Procedures and AAA
SHILOH GROVE
DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS
4889-7407-9130v.3 52919-618
Supplementary Procedures for Consumer Related Disputes are referred to herein as the
"AAA Rules"). In the event of any inconsistency between the AAA Rules and this
Section 12.08, this Section 12.08 will control. Judgment upon the award rendered by the
arbitrator shall be binding and not subject to appeal, but may be reduced to judgment or
enforced in any court having jurisdiction. Notwithstanding any provision to the
contrary or any applicable rules for arbitration, any arbitration with respect to Claims
arising hereunder shall be conducted by a panel of three (3) arbitrators, to be chosen as
follows:
W One arbitrator shall be selected by Respondent, in its sole and
absolute discretion;
(ii) One arbitrator shall be selected by the Claimant, in its sole and
absolute discretion; and
(iii) One arbitrator shall be selected by mutual agreement of the
arbitrators having been selected by Respondent and the Claimant, in their sole
and absolute discretion.
(b) Exceptions to Arbitration; Preservation of Remedies. No provision of, nor
the exercise of any rights under, this Section 12.08 will limit the right of Claimant or
Respondent, and Claimant and the Respondent will have the right during any Claim, to
seek, use, and employ ancillary or preliminary remedies, judicial or otherwise, for the
purposes of realizing upon, preserving, or protecting upon any property, real or
personal, that is involved in a Claim, including, without limitation, rights and remedies
relating to: (i) exercising self-help remedies (including set-off rights); or (ii) obtaining
provisions or ancillary remedies such as injunctive relief, sequestration, attachment,
garnishment, or the appointment of a receiver from a court having jurisdiction before,
during, or after the pendency of any arbitration. The institution and maintenance of an
action for judicial relief or pursuit of provisional or ancillary remedies or exercise of
self-help remedies shall not constitute a waiver of the right of any party to submit the
Claim to arbitration nor render inapplicable the compulsory arbitration provisions
hereof.
(c) Statute of Limitations. All statutes of limitation that would otherwise be
applicable shall apply to any arbitration proceeding under this Section 12.08.
(d) Scope of Award; Modification or Vacation of Award. The arbitrator shall
resolve all Claims in accordance with Applicable Law. The arbitrator may grant any
remedy or relief that the arbitrator deems just and equitable and within the scope of this
Section 12.08 and subject to Section12.09 below; provided, however, attorney's fees and
costs may not be awarded by the arbitrator to either Claimant or Respondent. In all
arbitration proceedings, the arbitrator shall make specific, written findings of fact and
conclusions of law. In all arbitration proceedings the parties shall have the right to seek
SHILOH GROVE
DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS
4889-7407-9130v.3 52919-618
vacation or modification of any award that is based in whole, or in part, on: (i) factual
findings that have no legally or factually sufficient evidence, as those terms are defined
in Arkansas law; (ii) conclusions of law that are erroneous; (iii) an error of Applicable
Law; or (iv) a cause of action or remedy not expressly provided under Applicable Law.
In no event may an arbitrator award speculative, special, exemplary, treble, or punitive
damages for any Claim.
(e) Other Matters. To the maximum extent practicable, an arbitration
proceeding hereunder shall be concluded within one hundred and eighty (180) days of
the filing of the Claim for arbitration. Arbitration proceedings hereunder shall be
conducted in Pulaski County, Arkansas. Unless otherwise provided by this Section
12.08, the arbitrator shall be empowered to impose sanctions and to take such other
actions as the arbitrator deems necessary to the same extent a judge could pursuant to
the Federal Rules of Civil Procedure, the Arkansas Rules of Civil Procedure and
Applicable Law. Claimant and Respondent agree to keep all Claims and arbitration
proceedings strictly confidential, except for disclosures of information required in the
ordinary course of business of the parties or by Applicable Law. In no event shall
Claimant or Respondent discuss with the news media or grant any interviews with the
news media regarding a Claim or issue any press release regarding any Claim without
the written consent of the other parties to the Claim.
12.09 Allocation of Costs. Notwithstanding any provision in this Declaration to the
contrary, each party bears all of its own costs incurred prior to and during the proceedings
described in the Notice, Negotiation, Mediation, and Arbitration sections above, including its
attorney's fees. Respondent and Claimant will equally divide all expenses and fees charged by
the mediator and arbitrator.
12.10 General Provisions. A release or discharge of Respondent from liability to
Claimant on account of the Claim does not release Respondent from liability to persons who are
not party to Claimant's Claim.
12.11 Period of Limitation.
(a) For Actions by an Owner or Resident. The exclusive period of limitation
for any of the Parties to bring any Claim, shall be the earliest of: (i) for Claims alleging
construction defect or defective design, two (2) years and one (1) day from the date that
the Owner or Resident discovered or reasonably should have discovered evidence of the
Claim; (ii) for Claims other than those alleging construction defect or defective design,
four (4) years and one (1) day from the date that the Owner or Resident discovered or
reasonably should have discovered evidence of the Claim; or (iii) the applicable statute
of limitations for such Claim. In the event that a court of competent jurisdiction
determines that an Owner does have the power or right to institute, defend, intervene
in, settle or compromise litigation, arbitration or other proceedings relating to the design
or construction of the Common Area, the exclusive period of limitation for a Claim of
SHILOH GROVE
DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS
4889-7407-9"130v.3 52919-618
construction defect or defective design of the Common Areas, shall be the earliest of:
(a) two (2) years and one (1) day from the date that the Owner or the Association
discovered or reasonably should have discovered evidence of the Claim; or (b) the
applicable statute of limitations for such Claim. In no event shall this Section 12.11(a) be
interpreted to extend any period of limitations.
(b) For Actions by the Association. The exclusive period of limitation for the
Association to bring any Claim, including, but not limited to, a Claim of construction
defect or defective design of the Common Areas, shall be the earliest of: (i) for Claims
alleging construction defect or defective design, two (2) years and one (1) day from the
date that the Association or its manager, board members, officers or agents discovered
or reasonably should have discovered evidence of the Claim; (ii) for Claims other than
those alleging construction defect or defective design of the Common Areas, four (4)
years and one (1) day from the date that the Association or its manager, board members,
officers or agents discovered or reasonably should have discovered evidence of the
Claim; or (iii) the applicable statute of limitations for such Claim. In no event shall this
Section 12.11(b) be interpreted to extend any period of limitations.
(c) Funding the Resolution of Claims. The Association must levy a Special
Assessment to fund the estimated costs to resolve a Claim pursuant to this Article 12.
The Association may not use its annual operating income or reserve funds to fund the
costs to resolve a Claim unless the Association has previously established and funded a
dispute resolution fund.
[SIGNATURE PAGE FOLLOWS]
SHILOH GROVE
DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS
4889-7407-9130v.3 52919-618
EXECUTED to be effective on the date this instrument is Recorded.
DECLARANT:
D.R. HORTON - NW ARKANSAS, LLC,
an Arkansas limited liability company
By:
Printed Name: • -Ori'i
Title: i Lip I A'e"t
STATE OF A rkmgo-S
COUNTY OF Fay I
This instrument was acknowledged before me this
Y mdaya
, of J U 20 7
b Kam -A. MorrIS V Cc--?YeSlde ' of
D.R. HORTON - NW ARKANSAS, LLC, an Arkansas limited liability company, on behalf of
said entity.
(SEAL)
,:;�?fi¢a•.;
BRANDI K. DAVIS
MY COMMISSION # 12M2606
EXPIRES: June 16. 2031
Faulkner County
4889-7407-9130v.3 52919-618
&"' K. 1"Iz--
Notary Public Signature
SHILOH GROVE
DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS
ACKNOWLEDGED AND AGREED:
E-STEPS INVESTORS, LLC,
an Arkansas limited liability company
By:
Print ame: 30A
Title:
STATE OF A r k an.sa. S §
§
COUNTY OF i- C1 I k n c�R §
This instrument was acknowledged before me this 1 01-hday of U I20,Q q-
by JOn k c.vn rw n as fYlCQ I na bt+hM of E-STEPS IN STORS, LLC, an
Arkansas limited liability company, on behalf of said entity. �t'
(SEAL) T/l-Qy 1, I `'
Notary Public Signature
BRANDI K, DAVIS
"�*�^ • "=
MY COMMISSION # 12382606
P
EXPIRES: June 16, 2031
Faulkner County
SHILOH GROVE
DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS
4889-7407-9130v.3 52919-618
CONSENT OF MORTGAGEE
The undersigned, being the sole owner and holder of that certain lien created by the
Construction Mortgage recorded under Document No. 2021088884 and modified under
Document No. 2023014549 , Official Public Records of Pulaski County, Arkansas (the "Lien"),
securing a note of even date therewith, executes this Declaration solely for the purposes of (a)
evidencing its consent to this Declaration, and (b) subordinating the Lien to this Declaration,
both on the condition that the Lien shall remain superior to the Assessment Lien in all events.
FIRST COMMUNITY BANK
By:
Pri
Titl
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THE STATE OF==`'T�-isXAS
COUNTY OF F2v kn
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This instrument was acknowledged before me on this day p of
1 20-7q , by �a ofGothe �e�r,a•!y� �e ��s io+ew�
of First Community Bank, on behalf of sai entity.
1&aNicy �-
Notary Public Signature
(seal)
•6t�T.,;
BRANDI K. DAVj2M
' NOTAf1 =
MY COMMISSION # 1
EXPIRES: June 16Faulkner
Coun
SHILOH GROVE
DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS
4889-7407-9130v.3 52919-618
EXHIBIT "A"
PROPERTY DESCRIPTION
A tract of land lying in the Northeast Quarter of the Southwest Quarter, Section 11,
Township 1 South, Range 13 West, Pulaski County, Arkansas, being more particularly
described as follows: Commencing at the SW Corner of the East Half Southwest Quarter
Northwest Quarter, Section 11, Township 1 South, Range 13 West, North 89 degrees 38
minutes 34 seconds East, 666.78 feet to a point on the North Line of said Northeast
Quarter Southwest Quarter, Section 11, Township 1 South, Range 13 West, also being
the Point of Beginning; thence along said North Line, South 88 degrees 04 minutes 19
seconds East, 1,074.58 feet to the Northwest corner of Oxford Valley Subdivision filed in
Plat Book C, page 114, records of Pulaski County, Arkansas; thence along the West line
of said Oxford Valley Subdivision to the following calls: South 01 degrees 46 minutes 25
seconds West, 123.29 feet; thence North 88 degrees 29 minutes 10 seconds West, 29.57
feet; thence South 02 degrees 07 minutes 14 seconds West, 135.05 feet to the Southwest
corner of said Oxford Valley Subdivision; thence along the South line of said Oxford
Valley Subdivision, South 88 degrees 44 minutes 02 seconds East, 110.14 feet; thence
leaving said South line, South 02 degrees 24 minutes 54 seconds West, 21.22 feet;
thence North 88 degrees 04 minutes 19 seconds West, 629.73 feet; thence North 01
degrees 53 minutes 55 seconds East, 35.04 feet; thence North 88 degrees 06 minutes 05
seconds West, 105.00 feet; thence South 86 degrees 13 minutes 54 seconds West, 50.25
feet; thence North 88 degrees 04 minutes 19 seconds West, 210.00 feet; thence North 82
degrees 18 minutes 46 seconds West, 50.26 feet; thence North 88 degrees 05 minutes 40
seconds West, 110.00 feet to a point on the West Line of the Northeast Quarter of the
Southwest Quarter; thence along said West Line, North 01 degrees 54 minutes 20
seconds East, 243.50 feet to the Point of Beginning, containing 6.425 acres, more or
less.
EXHIBIT "A"
SHILOH GROVE
DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS
4889-7407-9130v.3 52919-618