The Summit
AS OF AUGUST 27, 2005
To: The Public
This Declaration of Covenants and Restrictions is made by Mooney Construction, LLC, and their successors and assigns (hereinafter referred to as the "Developer"), who do hereby impose on each of the original seventy (70) lots in the subdivision and any future additional lots which may be added to the subdivision (referred to hereinafter as "The Summit" or the "Subdivision") by this document styled "Declaration of Covenants and Restrictions", filed for record this ___ day of , 2005, in the office of the Clerk and Ex-Officio Recorder for Baxter County, Arkansas, hereby records the following restrictions, covenants and dedications:
These COVENANTS AND RESTRICTIONS, being for the purpose of now designating and creating them against and upon the real property constituting The Summit and every subsequent portion thereof (hereinafter referred to a the "Property", "Lot(s)" or "Subdivision"), as a servitude in favor of, and for the rights and benefits of, the Real Property and each and every subsequent portion thereof which may be added, as the dominant tenement of tenements, to find and insure to the rights and benefits of DECLARANTS and all subsequent purchasers and owners of any interest in the Real Property or any subsequent portion thereof (also as may be referred to as "Owners" or "Lots" as applicable), and the legal representative heirs, successors, and assigns of any portion; these COVENANTS to attach to and pass with each and every portion of said Real Property and to be and have the force and effect of covenants and restrictions running with the land, so that as to any of said Real Property or any subsequent portion thereof, shall be, and is, expressly made subject, which are accepted by each grantee of DECLARANTS by acceptance of a deed incorporating the Declaration of reference, which shall apply to and be binding upon the parties such conveyance, their heirs, devisees, legatees, executors, administrators, successors and assigns, and which do, and shall, insure to and pass with each and every portion of said Real Property thereof, are the following to wit:
DWELLING SIZE AND QUALITY:
Each lot in The Summit is restricted to the construction of one (1) permanent one-family dwelling. Each dwelling unit must have not less than 2000 square feet of heated living area on the main floor, exclusive of basements, porches, garages and patios and must have a minimum of a two car garage. All dwellings are required to have indoor toilet facilities. All electrical, plumbing, heating and cooling, and other construction of whatever kind and nature (as allowed under these restrictions) shall equal of exceed the requirements of the applicable building code and other applicable codes. No structure shall have an exposed foundation. The faade or covering of the house must be completed to the ground. These areas shall be covered with brick, stone, stucco or EFIS system, Hardiplank or comparable in cost and quality upscale faade. No more than 30% of any dwelling or other permitted structure may be covered with vinyl siding of which the majority of such permitted vinyl siding may not face the street in front of such dwelling or structure. Upscale Log homes or any other non-conventional upscale dwelling may only be constructed if approved in advance of construction and in writing by the Developer or at least 36 of the Owners of Lots. Bright colors are prohibited. All construction shall be of new materials and shall be completed within one year of construction initiation. No house trailers, mobile homes, or prefabricated homes shall be permitted on any lot. Separate storage buildings and garages are permitted only if constructed and finished to match exterior of house. Storage buildings shall set behind front line of house. Prefabricated storage buildings and carports are not permitted. All driveways are to be concrete. The Developer may at any time designate Lots or sections of The Summit for condominiums or apartments by providing written notice to a majority of all Lot owners. Lots as may be so designated from time to time shall have dwellings of no less than 1,200 square feet of heated and cooled living area.
BUILDING SETBACKS:
No building structure shall be located on any lot nearer than thirty (30) feet to the road right of way, ten (10) feet to any side lot lines, nor nearer than twenty-five (25) feet to any rear lot line. The owner of two or more contiguous lots may utilize said lots to build any conforming structure so that it occupies said lots without interfering with easements set out on the recorded plat. A single residence may be placed on more than one Lot, but said property shall be considered one lot and said lot may not be subdivided at a later date. Swimming pools and hot tubs may only be constructed in rear yard areas and are exempt from the 25' setback except they cannot encroach on any easements. All swimming pools must be fenced in. Any above ground swimming pool must be surrounded by a solid fence so as it cannot be seen from the street in front of the residence.
NUISANCES:
No noxious or offensive activity shall be carried on upon any lot, nor shall anything be done thereon which may be or may become an annoyance or nuisance to the neighborhood. Nor shall any annoyance or nuisance created or sustained by any Owner upon the Property or Lots be tolerated or permitted. Owners of loud barking dogs that are considered to disturb the peace of neighbors as determined by the local police department shall have the responsibility to correct the situation.
TEMPORARY STRUCTURES:
No used or previously erected house or structure or facility of a temporary character, such as a motor home, modular or prefabricated house, garage, trailer, basement without a house on top, tent, shack, garage, barn or other outbuilding shall be used on any lot at any time as a residence either temporarily or permanently. No houses or portions of houses shall be moved to or placed on any lot.
Only during construction of a home, a builder or individual lot owner may use a construction shed or trailer for storage of equipment or materials temporarily. However, the Developer, at its discretion may place and use such facilities at various locations on the property.
TRADE OR BUSINESS:
No trade, business or commercial activity shall be carried on upon any lot.
LIVESTOCK AND POULTRY:
No animals, livestock, or poultry of any kind shall be raised, bred or kept on any lot except that dogs, cats, and other household pets may be kept provided that they are not kept, bred, or maintained for any commercial purpose. Not more than two (2) dogs and two (2) cats may be kept at any one time.
GARBAGE AND REFUSE DISPOSAL:
No lot shall be used or maintained as a dumping ground for rubbish, rocks, tree limbs, ashes, weeds, grass clippings, wood piles or other refuse. Trash, garbage or other waste shall be kept in sanitary containers. All clotheslines, garbage cans, equipment, or storage piles shall be fenced, walled or located so as to conceal them from view of all streets. No weeds or other unsightly growths shall be permitted to grow or remain upon the premises and no refuse pile or unsightly objects shall be allowed to be placed or suffered to remain anywhere thereon.
BUILDING MATERIALS:
No building material of any kind or character shall be placed upon any of the Property except in connection with then current construction or as may be placed there by the Developer.
DUTY OF MAINTENANCE:
All owners and occupants (including lessees, contract buyers, builders, residents and construction workers) of any part of the Property shall jointly and severally have the duty and responsibility, at their sole cost and expense, to keep the exterior portion of the Property so owned, occupied or used, including buildings, improvements, structures and grounds in a well-maintained, safe, clean and attractive condition at all times. Maintenance includes, but is not limited to, the following:
A. Prompt removal of all trash, litter, refuse, yard waste, debris, unused building materials and waste.
B. Lawn mowing.
C. Tree and shrub pruning.
D. Watering of landscape.
E. Keeping exterior lighting and mechanical facilities in working order.
F. Keeping lawn and garden areas alive, free of weeds and attractive.
G. Keeping parking areas, driveways in good repair.
H. Complying with all governmental, health and police requirements.
I. Repainting the exterior of improvements when necessary.
J. Repairing damages to exterior of improvements.
STREET LIGHT LOTS:
Certain Lots within the Subdivision have the benefit of a street light on or in front of said lot and on the same side of the street as the respective lot. Said lots are hereby designated as "Street Light Lots". The owner of a Street Light Lot is obligated to pay the monthly charges associated with and resulting from said single street light that are necessary to maintain said street light and result in the continuous night time illumination of said street light.
Certain lots have been designated as "Critical View Lots" as set forth herein. Said lots have been determined as having the potential to interfere with the view of LakeNorfork from other lots, depending where on the lot a residence or other permitted structure or landscaping is situated. Said Critical View Lot owners may only construct a residence or other structure on a footprint or location within the lot as is approved in advance in writing by the Developer, or as may be approved from time to time by the Owner(s) of a majority of the lots. Lots 55, 56, 59 and 61 are hereby designated as Critical View Lots. Lot owners of Critical View Lots shall be obligated to use their reasonable best efforts to avoid the construction of fences or the placing or development of landscaping (including the planting of trees) which does or will in time block the view of Lake Norfork from other Lots.
LINE OF SIGHT OBSTRUCTION:
No fence, wall, hedge or shrub planting which obstructs sight lines at elevations between two feet (2') and six feet (6) above the roadway shall be placed or permitted to remain on any corner lot within the triangular area formed by the street property lines and a line connecting them at points twenty-five feet (25') from the intersection of the street lines, or in the case of a rounded property corner, from the intersection of the street property lines extended. The same sight line limitation shall apply on any lot within ten feet (10') from the intersection of the street property line with the edge of a driveway or alley pavement. No tree shall be permitted to remain within such intersection unless the foliage lines are maintained at sufficient height to prevent obstruction of such sight lines. No fence, wall or landscaping (i.e. hedge, shrub) over two feet (2') tall shall be placed or permitted to remain on any lot within fifteen (15') feet of the street. No tree shall be permitted to remain unless the foliage lines are maintained at sufficient height to prevent obstruction of sight lines.
STORAGE AREAS:
Storage areas including woodpiles shall be allowed only if located so as to not be visible from the street or road in front of the residence. Appropriate fencing, screening or landscaping must visually screen garbage areas, storage areas and any other unsightly elements.
FENCES AND SIGNS:
No fences shall be erected in front of or in the front side yard of any dwelling. No fences or landscaping shall be located so as to obstruct clear sight of all street intersections and signs. Fencing finished on only one side must be constructed with the finished side facing out. Signs as permitted herein shall be in accordance with the sign ordinance and any master street plan approved by Baxter County, Arkansas. Rear yard fences can be decorative brick, stone, wrought iron, cedar, or coated plastic or coated chain link (with coatings of white, black or green).
Except for subdivision identification signs and informational, interpretive or directional signs placed by the Developer, no signs, posters, plaques, or communications if any description, other than address markers, shall be placed on the exterior of any surface or placed or permitted to remain on any part of the Property or Lots unless previously approved by the Developer. As to commercial signs, only one (1) free-standing construction sign and one (1) real estate sign will be permitted at any Residential Unit during construction, except on corner lots, where two (2) of each shall be permitted. Other signs as may be required by code or regulation shall also be permitted during any construction period.
No signs of any type shall be attached to trees or shrubs. Except for signs used or approved by Developer or a builder to advertise the Property during construction, only one (1) sign per lot not exceeding five (5) square feet in area may be displayed advertising the Property for sale or rent. All permitted signs must be erected on posts or stakes. No other commercial sign shall be permitted.
RESUBDIVISION:
No Lot shall be subdivided without the written consent of the Developer, until the Developer owns less than ten percent (10%) of the Lots or land to be subdivided, and the approval of the appropriate Planning Commission or similar authority is obtained. After the Developer owns less than ten percent of the Lots or land to be subdivided then the written consent of a majority of the Lot owners shall be required. This provision shall in no way limit the Developer from subdividing previously undeveloped land and adding to the number of lots in The Summit.
VEHICLES:
Each dwelling shall provide off-street parking for at least four (4) vehicles. No motor vehicles of any type in a non-operative condition are to be parked, jacked up, blocked up, worked on, or are to remain in a non-operative condition on any lot or on the street in front of a residence for a period of more than twenty-four (24) hours at any one time or as a repeated matter of practice. Recreational vehicles, boats and trailers are permitted only if stored in a garage or behind the front of the residence and more than 50 feet from any property line or the street.
FILLING IN AND REMOVING:
The elevation of a lot shall not be changed so as to materially affect the surface elevation or grade or the surrounding lots. No rock, gravel or clay shall be excavated or removed from any property for commercial purposes.
DEDICATIONS AND WIRING/CABELING:
Easements of way for streets as shown on the recorded plat are donated and dedicated to the public, and persons, firms or corporations engaged in supplying services such as electric power, gas, telephone, and TV cables; and, they shall have the right to use and occupy said easements of way and streets for the installation, maintenance, repair and replacement of such utility services. Other easements for the installation, maintenance, repair and replacement of utility services and drainage have been reserved, reference being made to the recorded plat for a more specific description of width and location. The agents, servants, and employees of any parties given any utility services shall have the right of ingress to and from and in, over, and across said easements. No improvements, trees, incinerators, fences or other hindrances shall be placed upon such easement areas that will interfere with the operations and maintenance of such utility services. In the event such improvements, trees, fences, or other hindrances are grown, built or maintained within the areas of such easements, no utility company shall be liable for the repair or replacement of same. Any alterations or lowering of the surface grade of the ground in any easement and the area immediately adjoining such easement are prohibited which would result in there being less than thirty-six (36") inches of clearance either vertically or horizontally between the surface grade and the underground utility services. As the electric distribution transformer stations, telephone and cable pedestals, gas meters and service connection points are located on the surface grade, fills within the areas of the said easements and upon the lands adjacent thereto which will damage or which will interfere with the installation, maintenance, operation, and replacement of the cables, facilities and equipment, and the supplying of service from such equipment are also prohibited.
Exposed overhead wires and cables for utility services and other connections are prohibited.
DRAINAGE:
Within these easements, no structure, planting or other material shall be placed or permitted to remain which may change the direction of flow of drainage channels, or which may obstruct or retard the flow of water through drainage channels in the easements. The easement area of each lot and all improvements in it shall be maintained continuously by the owner of the lot, except for those improvements for which a public authority or utility company is responsible. Each lot owner agrees that he will not in any way interfere with the established drainage pattern over his lot from adjoining or other lots in said tract and that he will make adequate provisions for proper drainage in the event it is necessary to change the established drainage over his lot. For the purpose hereof, "established" drainage is defined as the drainage, which occurred at the time the overall grading of said tract, including the landscaping of each lot in said tract, was completed by the Developer.
GARAGE SALES:
No lot owner shall have over two garage sales per year.
SPECIAL RESTRICTION ON LOTS 20, 21 AND 22:
Lots 20, 21 and 22 are required to so construct any dwelling so that such dwelling shall face or front the street in The Summit (currently intended to be named Denmark Circle). Such dwellings shall not be allowed to face or front Arkansas Highway 342.
ADDITIONAL STREETS, ROADS OR OTHER PUBLIC USE PROHIBITED:
No new street, road or other type of public driveway or access may be created or developed on any Lot or on any portion of any Lot without the written consent of the Developer and all other required regulatory authorities. This restriction shall further include and prohibit the granting of any easement for such street, road or other type of public driveway or similar public access.
PROPANE TANKS AND SIMILAR STOAGE FACILITIES:
All propane tanks and similar storage tanks and facilities shall be either 1) buried below ground or 2) fenced and landscaped around so as to not be visible from any direction. All such items shall be set back a minimum of 40 feet from all property lines.
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AMENDMENTS:
At any time a majority of owners of lots including lots owned by the Developer shall have the power through a duly recorded written instrument to change any restriction, condition, covenant or reservation set forth herein, excluding any provision affecting the rights or privileges of the Developer in which case the Developers written consent shall also be required.
ENFORCEMENT:
Should the DECLARANT, or DECLARANTS, employ counsel to enforce any of the foregoing covenants, conditions or reservations by reason of such breach, all costs incurred in such enforcement, including a reasonable fee for counsel, shall be paid by the Owner of each such lot or lots and the DECLARANT or DECLARANTS, shall have a lien placed upon such lot or lots to secure payment of all such amounts. The breach of any said covenants, conditions, restrictions, or reservations shall not defeat or render invalid the lien of any mortgage or deed of trust made in good faith and for value as to said lots or property, or any part thereof, but such provisions, restrictions, or covenants shall be binding and effective against any owner of said property whose title thereto is acquired by foreclosure, trustee's sale, or otherwise. No delay or omission on the part of the DECLARANT in exercising any rights, power, or remedy herein provided, in the event of any breach of the covenants, conditions, reservations or restrictions herein contained, shall be construed as a waiver thereof or acquiescence therein, and no right of action shall accrue nor shall any action be brought or maintained by anyone whatsoever against the DECLARANT for or on account of its failure to bring any action on account of any breach of these covenants, conditions, reservations or restrictions or for imposing restrictions herein which may be unenforceable by the DECLARANT. Provided, further, that each and every one of the covenants, conditions, restrictions and reservations contained herein shall be considered to be an independent and separate covenant and agreement and in the event any one or more of the foregoing covenants, conditions, reservations or restrictions shall be declared for any reason, by a court of competent jurisdiction to be null and void, such judgment or decree shall not in any manner whatsoever effect, modify, change, abrogate or nullify any of the covenants, conditions, reservations, and restrictions no so declared to be void, but all of the remaining covenants, conditions, reservations and restrictions not so expressly held to be void shall continue unimpaired and in full force and effect. In the event the provisions hereunder are declared void by a court of competent jurisdiction by reason of the period of time herein stated for which the same shall be effective, then in that event such terms shall be reduced to a period of time which shall not violate the rule against perpetuities or any other provision as set forth in the laws of the State of Arkansas.
OWNERS RESPONSIBILITY, HOLD HARMLESS AND DEVELOPERS RIGHTS:
It is the responsibility of each Owner to ensure that the Owner and every contractor employed by the Owner has reviewed and agreed to comply with the foregoing common scheme restrictions and provisions prior to commencement of site preparation or construction.
Notwithstanding any other provision set forth herein, any Lot owned by the Developer prior to the initial sale of the Lot shall not be required to comply with the covenants and restrictions set forth herein. Additionally any Lot on which the Developer builds a playground and/or tennis court or other similar facilities shall be exempt from compliance with the covenants and restrictions set forth herein. Any such Lot shall remain the property of the Developer and may be utilized or disposed of as the Developer desires in the Developers sole discretion.
Further, each Owner agrees to hold harmless the Developer and its Officers, Owners, Employees and Agents from and against any and all losses, claims, actions, damages, costs and expenses including legal fees relating to and/or resulting from injuries or damages to person, property or reputation in connection with the Subdivision or the development thereof, use of any areas or streets, facilities, tennis courts, playgrounds or similar items and in connection with the Owners development or ownership of the Owners lot. The Owner further indemnifies the Developer from all similar loss resulting from family members or guests of Owners and their use of such.
DURATION:
The Covenants and Restrictions of this Declaration shall run with and bind the Property, shall be and remain in effect, and shall inure to the benefit of and be enforceable by the Owners of any of the lots their respective legal representatives, heirs, successors and assigns.
NOTICES:
Any notice required or permitted to be sent to any member pursuant to any provision of this Declaration may be served by depositing such notice in the mails, postage prepaid, addressed to the Owner to whom it is intended at the Owner's last known place of residence and such service shall be deemed sufficient. The date of service shall be the date of mailing.
ASSIGNABILITY:
Notwithstanding any other provision herein to the contrary, Developer shall at all times have the right to fully transfer, convey and assign all of its rights, title, interest and obligations under this Declaration, provided that such transferee, grantee or assignee shall take such rights subject to all of the Covenants and Restrictions contained herein, and in such event the transferee shall be deemed to be Developer.
SEVERABILITY:
Invalidation of any of the covenants, restrictions, requirements, provisions or any part thereof by an order, judgment or decree of any court shall in no way affect any other provisions of this Declaration which shall remain in full force and effect.
IN WITNESS WHEREOF, Developer has hereunto set its hand and seal as the date first set forth above.
MOONEY CONSTRUCTION, LLC
By:
Name: Randy H. Mooney
Title: President/Chief Manager