HomeMy WebLinkAboutCovenants y
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Al
p'Y F
DECLARATION
OF
COY ENANTS, CONDITIONS AND RESTRICTIONS
OF
DELAWARE TRACL
TABLE OF CONTENTS
Page
SECTION I. DEFINITIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Section 1.1 Additional I-and . . . . . . . . . . . . . . . . . . . . . . , , . . , . I
Section 1.2 Association 1
Section 1.3 Board of Directors . . . . . . . . . . . . . . . . , . R , . . . . r . . 2
Section 1.4 Building . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . .. 2
Section 1.5 Builder . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Section 1.6 By-Laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . , . , ,. . . . . 2
Section 1.7 Committee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Section 1.8 Common Area . . . . . .�. . . . . . . . . . . . . . . . . . . . . . . . . . . *. . . . . 2
Section 1.9 Common Expenses . . . . . . . . . . . . . . . . . . . . . . . . . 2
Section 1,10 Declarant , , . , . . . , . . . , , , 2
Section 1.11 Delinquency Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
. . . . . .
Section 1.12 Drainage Easements . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Section 1.13 Ingress-Egress Easements . . . . . . . . . . . . . . . . . . . . . . . . . 2
Section 1.14 Lot . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Section 1.15 Mortgagee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . 3
. . . . . . .
Section 1.16 Owner . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Section 1.1'7 Phase . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Section 1.18 Plat . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Section 1.19 Real Estate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Section 1.20 Residence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . 3
Section 1.21 Sewer Easements 3
Section 1.22 Vehicle . . . . . . . . , , . , . . . . . . . . . . . . . . . . . . . . . . . 3
SECTION 2. IN GENERAL . . . » . . . 3
Section 2.1 Name . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Section 2.2 Residential Development . . . . . . . . . . . . . . . . . . . . 4
Section 2.3 Governmental Restrictions . . . . . . . . . . . . . . . . . . . . . . . 4
Section 2.4 Effect on Owners . . . . . . . . . . . . . . . . . . . . . . . . . . , 4
. . . . . . .
Section 2.5 Owner's Easement of Enjoyment . . . . . . . . . . . . . . . . . . . . . . 4
Section 2.6 Delegation of Use . . . . . . . . . . . . . . . . . . . . . . . . 5
Section 2.7 Owner's Right to Ingress, Egress and Support . . . . . . . . . . . . . . 5
Section 2.8 Rules and Regulations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
SECTION 3. PHYSICAL CHARACTERISTICS OF THE DEVELOPMENT . . . . . . . 6
Section 3.1 Ownership of Common Area . . . . . . . . . . . . . . . . . . . . . ' , . 6
Section 3.2 Maintenance of Common Area . . . . . . . . . . . . . . . . . . . . 6
Section 3.3 Easements , . . , . . . . , . . . , , , , _ . . R ' , . . 6
Section 3.4 Streets . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
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Section 3.5 Underground Utilities . . . . . . . . . . . . . . . . . . . . . . . . . 7
Section 3.6 ,Sidewalks . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Section 3.7 Declarant's Reserved Easement . . . . . . . . . . . . . . . . . . . . . . . 7
SECTION 4. CONSTRUCTION PROVISIONS . . . . . . . . . . . . . . . . . . . . . . . . g
Section 4.1 One Residence . . . . . . . . . , , . „ . . . . . . . . . . . , . , . g
Section 4.2 Minimum Residence Size . , . . . . , . . . . . . . . . . . g
Section 4.3 Maximum Height . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . g
Section 4.4 Construction of Sewage Lines . . . . . . . . . . . . . . . . . . . . . . 9
Section 4.5 Setback . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Section 4.6 Prohibited Building Styles . . . . . . . . . . . . . . . . . . . . . . . 9
Section 4.7 Minimum Exterior Brick Requirements . . . . . . . . . . . . . . . . 9
Section 4.8 Solar Devices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Section 4.9 Antennas and Towers . . . . . . . . . . . . . . . . . . . . . . . . . . . ., . 9
Section 4.10 Garbage Disposals and Sanitary Sewer, Water . . . . . . . . . . 9
Section 4.11 Fences, Mailboxes and other Structures . . . . . . . . . . . . . . . . . 10
Section 4.12 Light Fixtures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Section 4.13 Exterior Construction . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Section 4.14 Submission of Documents . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Section 4.1.5 Responsibilities During Construction . . . . . . . . . . . . . . . . . 1.1
Section 4.16 Drainage . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.2
Section 4.17 Landscaping . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
SECTION 5. MEMBERSHIP IN THE ASSOCIATION . . . . . . . . . . . . . . . . . . . . 13
Section 5.1 The Organization . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Section 5.2 Membership . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Section 5.3 Classes of Membership . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
SECTION 6. RESTRICTIONS ON THE USE OF THE REAL ESTATE . . . . . . . . . 14
Section 6.1 Parking . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
. . . . ,
Section 6.2 Temporary Structures . . . . . . . . . . . . . . . . . . . . . . . . 14
Section 6.3 Animals and Pets . . . . . . . . . . . . . . . . . . . . . . . . . ` . . . . . 14
Section 6.4 Nuisance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
. . .
Section 6.5 Garbage Cans, Woodpiles, Etc . . . . . . . . . . . . . . . . . . . . . 15
Section 6.6 Signs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Section 6.7 Subdivision of a Lot . . . . . . . . . . . . . . . . . . . . . . . . 15
Section 6.8 Trash Receptacles . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.5
Section 6.9 Drilling and Exploration . . . . . . . . . . . . . . . . . . . . . . . . . 15
Section 6.10 Ditches and Swaes . . . . . . . . . . . . . . . . . . . . . . . . . . . . , . 16
. . . .
Section 6.11 Line of Sight . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Section 6.12 Damaged Structures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Section 6.13 Clotheslines . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Section 6.14 Playground Equipment . . . . . . . . . . . . . . . . . . . . 16
Section 6,15 Outside Burning . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
1fl
Section 6.16 Electric Bug Killers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Section 6.17 Maintenance of Lots and Improvements . . . . . . . . . . . . . . . . . 16
Section 6.18 Maintenance of Common Area . . . . . . : , , * * * * * . * , , , , , 17
Section 6.19 The Owner of any Lot shall do the following: . . . . . . . . . . . . . . 17
SECTION 7. ENFORCEMENT . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . 17
SECTION 8. ASSESSMENT AND COLLECTION OF COMMON EXPENSES . . . . . 18
Section 8.1 Payment of Regular Assessments . . . . . . . . . . . . . . . . . . . . . . 18
Section 8.2 Budgeting . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Section 8.3 Non-Waiver of Assessments . . . . . . . . . . . . . . . . . . . . . . . . . 19
Section 8.4 Exemptions from Assessments . . . . . . . . . . . . . . . . . . . . . . . . 19
Section 8.5 Special Assessments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Section 8.6 Common Expenses Attributable to Fewer Than All Lots . . . . . . . . 19
Section 8.7 Lien . . . . * * * - * * ' ' * * ' * * . . . * ' * ' * ' * ' * . . 19
Section 8.8 Ratification of Non-budgeted Assessments . . . . . . . . . . . . . . . . . 21
Section 8.9 Certificate of Payment of Assessments . . . . . . . . . . . . . . . . . . . 21
Section 8.10 No Waiver of Liability for Common Expenses . . . . . . . . . . . . . 21
Section 8.11 Personal Liability of Owners . . . . . . . . . . . . . . . . . . . . . . . . 21
Section 8.12 Accounts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Section 8.13 Current Operation Account . . . . . . . . . . . . . . . . . . . . . . . . . 21
Section 8.14 Reserve Account . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
SECTION 9. ARCHITECTURAL CONTROL COMMITTEE . . . . . . . . . . . . . . . . 22
Section 9.1 Power of Committee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
Section 9.2 Duties of Committee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
Section 9.3 Liability of Committee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
Section 9.4 Inspection . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
Section 9.5 Membership . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
Section 9.6 Approvals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
SECTION 10. RIGHTS OF MORTGAGEES . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
SECTION 11. INSURANCE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
Section 11.1 Coverage . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
Section 11.2 Property Insurance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
Section 11.3 Liability Insurance . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . 25
Section 11.4 Fidelity Bonds . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
Section 11.5 Owner Policies . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
Section 11.6 Workers' Compensation Insurance . . . . . . . . . . . . . . . . . . . . . 26
Section 11.7 Directors' and Officers' Liability Insurance . . . . . . . . . . . . . . . 26
Section 11.8 Other Insurance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
Section 11.9 Premiums . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
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SECTION 12. DAMAGE TO OR DESTRUCTION OF PROPERTY . . . . . . . . . . . . 27
Section 12.1 Duty to Restore . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
Section 12.2 Cost . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
Section 12.3 Plans . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
Section 1.2.4 Replacement of Less than Entire Property . . . . . . . . . . . . . . . . 27
Section 12.5 Insurance Proceeds . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
Section 12.6 Certificates by the Board . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
Section 12.7 Certificates by Attorneys or Title Companies . . . . . . . . . . . . . . 28
SECTION 13. RIGHTS TO NOTICE AND HEARING . . . . . . . . . . . . . . . . . . . . 28
Section 13.1 Right to Notice and Hearing . . . . . . . . . . . . . . . . . . . . . . . . 28
Section 13.2 Appeals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
SECTION 14. BOARD OF DIRECTORS .. . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
Section 14.1 Powers and Duties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
SECTION 1.5. OPEN MEETINGS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
Section 15.1 Access . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
Section 15.2 Notice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
Section 15.3 Executive Sessions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
SECTION 16. CONDEMNATION OF COMMON AREA . . . . . . . . . . . . . . . . . . 30
SECTION 17. ANNEXATION OF ADDITIONAL, PROPERTY . . . . . . . . . . . . . . . 31
Section 17.1 Annexation without Approval of Owners . . . . . . . . . . . . . . . . . 31
Section 17.2 Acquisition of Additional Common Area . . . . . . . . . . . . . . . . . 31
Section 17.3 Amendment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
SECTION 18. GENERAL PROVISIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
Section 18.1 Duration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
Section 18.2 Amendment of Declaration . . . . . . . . . . . . . . . . . . . . . . . . . 32
Section 18.3 Notice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
Section 18.4 Severability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
Section 18.5 Rule Against Perpetuities . . . . . . . . . . . . . . . . . . . . . . . . . . 33
Section 18.6 Gender and Number . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
Section 18.7 Construction and Sale . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
Section 18.8 Limitation on Declarant°s Liability . . . . . . . . . . . . . . . . . . . . . 34
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THIS DECLARATION OF COVENANTS, CONDITIONS, AND RESTRICTIONS OF
DELAWARE TRACE (the "Declaration") is made this day of
, 1995, by Oak View Associates, LLC, an Indiana limited liability company,
hereinafter referred to as "Declarant".
WHEREAS, Declarant is the sole owner of the fee simple title to certain real estate
located in Hamilton County, Indiana, more particularly described in Exhibit "A" attached hereto
and incorporated herein by this reference, consisting of approximately 38.86 acres (the "Real
Estate"); and
WHEREAS, Declarant desires to preserve the character of the Real Estate and to protect
the property values within the Real Estate; and
WHEREAS, Declarant intends to sell the Real Estate restricting it in accordance with a
common plan designed to preserve the value and residential qualities of the Real Estate for the
benefit of its future owners; and
WHEREAS, Declarant intends to restrict the uses of the Real Estate in accordance with
a common plan as stated in this Declaration; and
WHEREAS, Declarant has formed (or intends to form) the Association (as defined
herein) for the purpose of carrying out the power and duties aforesaid.
NOW, THEREFORE, Declarant hereby declares that the Real Estate, and any additional
property as may by subsequent amendment be added to and subjected to this Declaration, shall
be held, transferred, encumbered, used, sold, conveyed, leased and occupied subject to the
covenants and restrictions contained in this Declaration which shall "run with the land" expressly
and exclusively for the use and benefit of the Real Estate and of each and every person or entity
who now or in the future owns any portion or portions of the Real Estate and which shall be
binding on all parties having any right, title or interest in the Real Estate. Declarant, for itself
and it successors and assigns, specifically reserves unto itself the right and privilege to include
Additional Land (as defined herein) within and subject to, the terms and provisions of this
Declaration by recording a document with the Recorder of Hamilton County, Indiana, making
reference to the terms and provisions hereof.
SECTION 1. DEFINITIONS. The following terms used in this Declaration shall have the
following meanings:
Section 1.1 Additional Land. "Additional Land" shall mean and refer to additional real
property now owned or which may in the future be owned by Declarant subject to Declarant's
unilateral right to annex the same within and subject to this Declaration as provided elsewhere
herein.
Section 1.2 Association. "Association" means Delaware Trace Homeowners'
Association, Inc., its successors and assigns, a to be formed Indiana not-for-profit. corporation,
which will be the incorporated association of all Owners in the Real Estate, more particularly
described in Section 5 of this Declaration.
Section 1.3 Board of Directors. "Board of Directors" or "Board" means the governing
body of the Association elected by the Owners in accordance with the By-Laws.
Section 1.4 Building. "Building" means all structures erected on the Real Estate,
including Residences, garages, accessory buildings, outbuildings, or covered and enclosed
permanent structures of any kind.
Section 1.5 Builder. "Builder" means the person, firm or entity (including the
Declarant) constructing the first Residence on each Lot.
Section 1.6 By-Laws. "By-Laws" means the By-Laws of the Association providing for
the administration and management of the Association.
Section 1.7 Committee. "Committee" means the Architectural Control Committee which
shall be constituted and governed as set out in Section 9 of this Declaration.
Section 1.8 Common Area. "Common Area" means those portions of the Real Estate
designated ""C.A." or "Common. Area" on the Plat.
Section 1.9 Common Expenses. "Common Expenses" means the expenses of
administration of the Association, expenses for the upkeep, maintenance, repair and replacement
of the Common Area and other costs and expenses incurred by the Association for the common
benefit of the Owners.
Section 1.10 Declarant. "Declarant" means Oak View Associates, LLC, an Indiana
limited liability company, and any successor or assignee of its interest in all or part of the Real
Estate or in this Declaration under an instrument or instruments which expressly state that the
successor or assignee thereunder shall become the Declarant for purposes of this Declaration.
Section 1.11 Delinquency Date. "Delinquency Date" means the date which is ten (10)
days after the due date of any Regular or Special Assessment.
Section 1.12 Drainage Easements. "Drainage Easements" means the easements labeled
"D.E." on the Plat which have been created to provide paths and courses for area and local
storm drainage either over land or in adequate underground conduits to serve the needs of the
Real Estate, the lands adjoining the Real Estate, and the public drainage system.
Section 1.13 Ingress-Egress Easements. "Ingress-Egress Easements" mean the
easements labeled "I.E." on the Plat which have been created to provide ingress and egress to,
over and from the Real Estate.
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Section 1.14 Lot. "Lot" means one of the numbered lots as shown on the Plat of the
Real Estate.
Section 1.15 Mortgagee. "Mortgagee" means the holder of any first mortgage on any
Lot or Residence and other improvement constructed on a Lot.
Section 1.16 Owner. "Owner" means a person, firm, corporation, partnership, trust or
other legal entity or any combination thereof, including Declarant, which owns the record fee
simple title to a Lot; provided that persons or entities owning a single Lot as tenants in common,
joint tenants, tenants by the entireties or any form of joint or divided ownership, shall be deemed
one Owner for purposes of this Declaration, and provided further that any person holding record
fee simple title for purposes of security only shall be excluded.
Section 1.17 Phase. "Phase" means that portion of the Real Estate contained in
individual plat(s) to be recorded as sections of the Real Estate are ready to be conveyed to
individual Lot purchasers.
Section 1.18 Plat. "Plat" means the Master Development Plan of the Real Estate
prepared by Schneider Engineering Corporation attached to this Declaration as Exhibit "B" and
incorporated by this reference, the Plat of Phase I and the Plats of any subsequent Phases. "Plat
of Phase 1" means the plat prepared by Schneider Engineering Corporation attached to this
Declaration as Exhibit "C" and recorded in the Office of the Recorder of Hamilton County,
Indiana, as Instrument No.
Section 1.19 Real Estate. "Real Estate" means the real estate described in Exhibit
together with any additions thereto as provided in this Declaration.
Section 1.20 Residence. "'Residence" means a single-family dwelling constructed on a
Lot.
Section 1.21 Sewer Easements. "Sewer Easements" mean the easements labeled "S.E."
on the Plat which have been created for the use of the utility having jurisdiction over the storm
and sanitary waste disposal systems for the purpose of installation and maintenance of sewers.
Section 1.22 Vehicle. "Vehicle" means motor homes, motor-powered conveyances,
boats, trailers, campers, motorcycles, scooters, trucks, vans, tractors, tractor trailers, buses and
automobiles.
SECTION 2. IN GENERAL.
Section 2.1 Name. The Real Estate shall be known and designated as "Delaware
Trace".
_ 3 _
Section 2.2 Residential Development. The Real Estate and each Residence constructed
within the Real Estate shall be used by its Owners and occupants exclusively for residential
purposes. No commercial building (recreational facilities constructed on the Common Area shall
not be considered commercial buildings) shall be erected, altered, placed or permitted to remain
on any portion of the Real Estate. No business activity or business shall be carried on or
conducted from a Residence except for home occupations permitted under applicable zoning laws
as approved by the Committee. Leasing of a Residence for residential purposes shall not be
considered a business or business activity as long as the lease meets the requirements of this
Declaration applicable to the particular Residence.
Section 2.3 Governmental Restrictions. The Real Estate and all Lots and Residences
constructed upon Lots shall be subject to the zoning ordinances and regulations of the applicable
governmental authorities all of which are incorporated by reference.
Section 2.4 Effect on Owners. The Owners of any Lot subject to this Declaration by
acceptance of a deed conveying title thereto or in the execution of a contract for the purchase
thereof, whether from Declarant or a subsequent Owner of such Lot, shall accept such deed and
execute such contract subject to each and every restriction and agreement herein contained. By
acceptance of such deed or execution of such contract, the Owner acknowledges the rights and
powers of Declarant and the Committee with respect to these restrictions and also for
themselves, their heirs, personal representatives, successors, and assigns, such Owners covenant
and agree and consent to and with Declarant and to and with the Owners and subsequent Owners
of each of the Lots affected by these restrictions, to keep, observe, comply with and perform
such restrictions and agreements.
Section 2.5 Owner's Easement of Enjoyment. Every Owner shall have a right and
easement of ingress and egress in and to, and, use and enjoyment of the Common Area, which
shall be appurtenant to and shall pass with the title to every Lot, subject to:
(i) the right of the Association to charge reasonable admission and other fees
for the use of any Common Area and to impose reasonable limits on the number
of guests who may use such facilities;
(ii) the right to suspend use of any such facilities for any period during which
any assessment for Common Expenses against that Owner's Lot remains unpaid,
and for any violation by an Owner of the Association's rules and regulations, for
the duration of the violation and for an additional period thereafter not to exceed
thirty (30) days. The Association may suspend the voting rights use of an Owner
for any period during which any assessment against such Owner's Lot remains
unpaid; and for the duration of any violation and for a period thereafter not to
exceed thir-ty (30) days for any infraction of the Association's published rules and
regulations.
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(iii) the Declarant's reserved easements as described herein and the right of the
Declarant to grant easements in and to the Common Area to any public agency,
authority, or utility for such purposes as benefit only the Development or portions
thereof and Owners or Lots contained therein;
(iv) the right of the Association to borrow money for the purpose of improving
the Common Area or any portion thereof, for acquiring additional Common Area
or for constructing, repairing, or improving any facilities located or to be located
thereon, and to give as security for the payment of any such loan a mortgage
conveying all or any portion of the Common Area, provided two-thirds (213) of
each class of Members shall approve; provided, however, the lien and
encumbrance of any such mortgage given by the Association shall be subject and
subordinate to any and all rights, interests, options, easements, and privileges
reserved or established in this Declaration for the benefit of Declarant or any
Owner, or the holder of any Mortgage, irrespective of when executed, given by
Declarant or any Owner encumbering any Lot or other property located within
the Development; and
(v) the right of the Association to dedicate or transfer all or any portion of the
Common Area to any public agency, authority, or utility for such purposes and
subject to such conditions as may be agreed to by two-thirds (213) of the
Members of the Association.
This Section 2.5 may not be amended without the written consent of Declarant during
the time that Declarant owns any property subject to this Declaration.
Section 2.6 Delegation of Use. No Owner may delegate his or her right of enjoyment
to the Common Area to any other individual without the prior written consent of the Association,
provided, however, any Owner may delegate in accordance with the provisions of this
Declaration and the rules or regulations of this Declaration and the rules or regulations
promulgated by the Association his right to enjoyment and use of the Common Area and
facilities to a member of his family, his tenants or contract purchaser who reside on any Lot.
Section 2.7 Owner's Right to Ingress, Egress and Support. Each Owner shall have the
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right to ingress and egress over, upon, and across the Common Area necessary for access to his
or her Lot and shall have the right to lateral support for his or her Lot, and such rights shall be
appurtenant to and pass with the title to each Lot.
Section 2.8 Rules and Regulations. The Board of Directors of the Association may
establish reasonable rules and regulations concerning the use of the Common Area, facilities
located thereon, and individual Lots in the Development, as appropriate. Copies of such
regulations and amendments thereto shall be furnished by the Association to all Owners prior
to the rule's effective date. Such regulations shall be binding upon the Owners, their families,
tenants, guests, invitees, and agents until and unless such regulation, rule, or requirement shall
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be specifically overruled, cancelled, or modified by the Board of Directors of the Association
or the Members by two-thirds (2/3) vote of each class of Members. In addition, the
Association, through its Board, may, by contract or other agreement, enforce county ordinances
or permit Hamilton County to enforce ordinances affecting the Development for the benefit of
the Association and its Members.
SECTION 3. PHYSICAL CHARACTERISTICS OF THE DEVELOPMENT.
Section 3.1 Ownership of Common Area. The Common Area shall be conveyed to or
owned by the Association as indicated in this Section, and shall be held for the use and
enjoyment of the Owners. All Owners shall have a right and easement of ingress and egress in
and to, and use and enjoyment of the Common Area, which right shall pass with title to every
Lot, subject to the provisions of this Declaration including, but not limited to the following:
Section 3.1.1 The Common Area in each Phase shall be conveyed to the
Association on or prior to the conveyance of the last Lot owned by Declarant in
the particular Phase of the Development to a homeowner or Builder; provided,
however, that expenses relating to the maintenance of the Common Area within
each Phase are to be included within the Association's budget from the time of
conveyance of the first Lot in the particular Phase of the Real Estate.
Section 3.1.2 The Declarant may develop and construct improvements on any
portion of the Real Estate designated as Common Area.
Section 3.1.3 If by reason of inexactness of construction, settling after
construction or for any other reasons, improvements on any Common Area
encroach upon any Lot, an easement shall be deemed to exist and run to the
Association for the maintenance, use and enjoyment of such Common Area.
Section 3.2 Maintenance of Common Area. The Association shall maintain, repair and
replace all of the Common Area including but not limited to the entry ways, the lakes, walking
paths, Delaware Trace signs, community building, landscaping, pathways to the Common Areas
between Lots 82 and 83 and between Lots 90 and 91, and any other improvements on the
Common Area in the manner deemed necessary and appropriate by the Board in its sole
discretion and shall provide such other services as the Board shall determine appropriate. The
Association shall maintain the rear drainage area along Lots 340 and 166-177.
Section 3.3 Easements. Perpetual and non-exclusive Drainage Easements, Sewer
Easements, and Utility Easements for the purposes of the installation, maintenance' repair and
replacement of all sewer, water, storm water, power and telephone lines, pipes, conduits,
transformers, or cable television facilities are reserved as shown on the Plat. Ingress-Egress
Easements are also reserved as shown on the Plat. Within these easements, no structure, or
other material shall be placed or permitted to remain which may damage or interfere with the
installation and maintenance of utilities or which may change the direction or flow of drainage
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or which may obstruct or retard the flow of drainage. Plants, trees and other vegetation are
allowed in the easements subject to any other restrictions on landscaping contained in this
Declaration or any other Declaration applicable to the Real Estate.
Section 3.4 Streets. Until acceptance by the appropriate governmental unit, all streets
within the Real Estate shall be considered to be Common Area.
Section 3.5 Underground Utilities. All utilities including but not limited to water, gas,
electric, sewer and cable television shall be installed underground.
Section 3.6 Sidewalks. Sidewalks no less than four (4) feet in width shall be constructed
across that portion of each Lot which is considered to be the front, and the installation and
maintenance of said sidewalk shall be the responsibility of each individual Lot Owner. These
sidewalks shall be fully completed and available for use not later than the date of initial
occupancy of such Residence.
Section 3.7 Declarant's Reserved Easement. Notwithstanding any provisions contained
in the Declaration to the contrary, Declarant hereby expressly reserves unto itself and its
successors and assigns a nonexclusive, perpetual right, privilege, and easement with respect to
any property in the Real Estate, for the benefit of Declarant and its successors and assigns over,
under, in, and on the Real Estate, without obligation and without charge to Declarant, for the
purposes of construction, installation, relocation, development, sale, maintenance, repair,
replacement, use and enjoyment and otherwise dealing with the Real Estate and any other
property now owned or which may in the future be owned by Declarant. The reserved easement
shall constitute a burden on the title to all or any portion of the Real Estate and specifically
includes, but is not limited to:
(a) the right of access, ingress, and egress for vehicular and pedestrian traffic over'
under, on, and in all or any portion of the Real Estate; and the right to tie into any
portion of the Real Estate with driveways, parking areas, streets, the drainage system and
walkways; and the right to tie into and/or otherwise connect and use (without a tap-on
or any other fee for so doing), replace, relocate, maintain, and repair any device which
provides utility or similar services, including, without limitation, electrical, telephone,
natural gas, water, sewer, and drainage lines and facilities constructed or installed in, on,
under, and/or over all or any portion of the Real Estate-,
(b) the right to construct, install, replace, relocate, maintain, repair, use and enjoy
signs, model residences, sales offices, construction offices and business offices as, in the
sole opinion of Declarant, may be required, convenient or incidental to the construction
and sale by Declarant of residences in all or any portion of the Real Estate or in any
portion of the Additional Land; and
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(c) the right to maintain a sales and marketing office for the Real Estate within the
Common Area without cost to Declarant until Declarant no longer owns any Lots in the
Real Estate.
No rights, privileges, and easements granted or reserved herein shall be merged into the
title of any property within the Real Estate, but shall be held independent of such title, and no
such right, privilege, or easement shall be surrendered, conveyed, or released unless and until
and except by delivery of a quitclaim deed from Declarant releasing such right, privilege, or
easement by express reference thereto with respect to all or any portion of the Real Estate.
Declarant may grant to a builder of Lots within the Real Estate similar rights as granted to
Declarant under (b) and (c), above.
This Section 3.7 may not be amended without the advance written consent of Declarant
as long as Declarant owns one or more Lots.
SECTION 4. CONSTRUCTION PROVISIONS.
Section 4.1 One Residence. Only one Residence shall be constructed on any Lot.
Section 4.2 Minimum Residence Size. Each Residence in the Real Estate shall contain
at least three (3) bedrooms and two (2) full bathrooms. The following minimum sizes shall
apply to each Residence constructed on a Lot:
Section 4.2.1 One story Residences shall have finished ground floor area of not
less than 2000 square feet above finished grade.
Section 4.2.2 Two-story Residences shall have a finished ground floor area of
not less than 1400 square feet above finished grade and a total finished area of
not less than 2200 square feet above finished grade.
For purposes of this Section 4.2, ground floor area shall be determined from the area of
the Residence measured from the outside of the building foundations exclusive of open porches,
breezeways, garages, chimneys and eaves.
The provisions of this Section 4.2 may be waived by the Committee upon application in
writing by any Lot Owner. No waiver will be valid unless and until it is properly signed by a
member of the Committee and placed of record in the Office of the Recorder of Hamilton
County, Indiana.
Section 4.3 Maximum Height. No single family Residence exclusive of chimney shall
exceed twenty-five (25) feet in height measured from the lowest finished grade level at the front
of the Residence's foundation visible from any street to the underside of the eave line of the
roof.
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Section 4.4 Construction of Sewage Lines. All sanitary sewer lines within the Lots shall
be designed and constructed in accordance with the provisions and requirements of Carmel,
Indiana.
Section 4.5 Setback. No Residence, Building or other permanent structure shall be
located on any Lot nearer to the boundaries of the Lot than the minimum setback lines as shown
on the Plat or the setback restriction in effect at the time of construction as established by
Carmel, Indiana, if any, whichever is more restrictive. For the purposes of this covenant,
eaves, steps and open porches shall not be considered as part of a Residence; provided,
however, that this provision shall not be construed to permit any portion of a Residence on a Lot
to encroach upon any other Lot in the Real Estate.
Section 4.6 Prohibited Building Styles. Modular construction or modular homes win
not be permitted upon any Lot in the Real Estate. No used Residences will be relocated or
placed on any Lot with the exception of construction and sales offices to be maintained by
Declarant. No Residence shall be constructed with used materials. The finished exterior of
every Residence constructed or placed upon a Lot shall be of a masonry or wood product
material.
Section 4.7 Minimum Exterior Brick Requirements. The finished front exterior of every
Residence shall have a minimum of three hundred (300) square feet of brick or other masonry
material approved by the Committee. All exterior fireplace chimneys or fireplace flues must
have a brick exterior unless another material is approved by the Committee.
Section 4.8 Solar Devices. No artificial or manmade device which is designed or used
for collection of or heated by solar energy or other similar purpose shall be placed, allowed or
maintained upon any portion of the Real Estate including any Residence without the consent of
the Committee.
Section 4.9 Antennas and Towers. No television, cable, radio, short-wave or other
antenna, pole or tower shall be placed, constructed or maintained upon the roof or exterior walls
of any Residence, or within the Real Estate, without the consent of the Committee.
Section 4.10 Garbage Disposals and Sanitary Sewer, Water. All Residences shall be
equipped with a mechanical device for the grinding and disposal of garbage and food waste in
the kitchen(s) which shall discharge to the sewer drain. All sewage disposal shall be connected
with the sanitary sewer system of the utility providing such service to the Real Estate. No septic
tanks, holding tanks or cesspools shall be constructed or permitted to remain anywhere within
the Real Estate. No private or semi-private water supply system may be located anywhere
within the Real Estate. Each Owner shall connect to domestic water service provided by a
public or private utility company and shall pay all connection, availability or other charges
lawfully established with respect to such connection.
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Section 4.11 Fences, Mailboxes and other Structures. In order to preserve the natural
quality and aesthetic appearance of the existing geographic areas within the Real Estate, any
fence, flag pole, basketball goal or similar structure must be approved by the Committee as to
size, location, height and composition before it may be installed. Each Residence shall be
provided with a mailbox to be furnished and installed by the Declarant. All mailboxes shall be
of the same design and approved by the Committee. No names, designs or other ornamentation
shall be placed on any mailboxes or their supporting posts or structures other than street address
numbers. No wall, fence, hedge or shrub planting which obstructs sight lines at elevations
above two (2) feet shall be placed or permitted to remain between the front property line and
the front building setback line except where such shrub planting is approved by the Committee.
No Fences shall be allowed except where required by law and/or approved by the Committee.
The intent is not to allow fences except for small privacy fences. No fencing shall be permitted
along the frontage of Hazel Dell Road. No outdoor pet enclosures of any kind except for
"Invisible fences" (underground, electronic or otherwise) shall be permitted without prior
approval of the Committee.
Section 4.12 Light Fixtures. Each Residence shall have at least one wall bracket light
fixture adjacent to the main entry door. Each Residence shall have at least one post light
adjacent to the driveway-sidewalk intersection.
Section 4.13 Exterior Construction. The following requirements shall be applicable
unless the Committee shall approve otherwise:
(a) all utility facilities in the Development will be underground except where required
to be placed above-ground by the individual utility supplier;
(b) whenever possible, all utility meters and HVAC units in the Real Estate will be
located in places unseen or screened from the front of the Residences;
(c) no outside fuel storage tanks will be permitted above or below ground in the Real
Estate;
(d) all windows in the Real Estate will be factory or on-the-job painted; no raw
aluminum windows will be permitted;
(e) all gutters and down spouts in the Real Estate will be factory or on-the-job
painted;
(f) all roof pitches of Residences shall be six to twelve (6:12) or greater, and there
shall be at least one (1) gable end on the front building elevation unless otherwise
permitted by the Committee;
(g) no metal, fiberglass or similar type material awnings or patio covers will be
permitted within the Real Estate;
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(h) no above-ground swimming pools will be permitted anywhere within the Real
Estate;
(i) each Residence shall have at least a two-car garage attached to the Residence of
the same architectural design and materials, and with a finished dry wall interior.
Garage doors may be placed so that they do not face the same direction a the front entry
of the Residence. Each Residence must install automatic garage door openers to keep
the garage generally closed and the contents not in view; and
0) driveways must be concrete, no less than sixteen (16) feet in width and extend
from their point of connection with the abutting street or road to a point of connection
with the garage entry.
Section 4.14 Submission of Documents. No Residence, Building or other permanent
structure shall be erected, placed or altered on any Lot until the construction plans and
specifications, landscaping plan, and a plan showing the location of the structure upon the Lot
have been approved by the Committee as to quality of workmanship and materials, harmony of
external design with existing structures, and as to location with respect to topography and
finished grade elevation. Approval or disapproval as required in these covenants by the
Committee shall be in writing. In the event the Committee fails to approve or disapprove any
plans and specifications within thirty (30) days after such plans and specifications have been
submitted to it, or in any event, if no suit to enjoin the construction has been commenced prior
to the completion thereof, approval will not be required, and the related covenants shall be
deemed to have been complied with fully.
Section 4.15 Responsibilities During Construction.
Section 4.15.1 When the basement and/or foundation of a Residence is
constructed,, stone shall be installed over the path of the driveway and shall be
level with the curb at the Lot line to avoid curb breakup.
Section 4.15.2 No track vehicles or heavy equipment vehicles shall be operated
or unloaded on any street.
Section 4.15.3 No construction vehicles, shacks or outhouses shall be erected or
situated on any Lot herein, except for use by a Builder during construction of a
proper structure, which Builder's temporary construction structure shall be
promptly removed upon completion of the proper structure.
Section 4.15.4 During the construction period, the Lot shall be maintained in a
clean and orderly manner at all times. All loose shingles, lumber, bricks, block,
drywall, insulation, or other building material which can blow onto adjacent Lots
shall not be left lying around. Construction trash shall be contained in a trash
fence and shall be removed from the Lot once per week or contained in a dump
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site on site provided by a trash disposal service which will empty the container
as needed.
Section 4.15.5 The Lot Owner shall be responsible for removal of dirt, mud, or
debris or other foreign material of any kind which may be deposited upon the
road or easements from construction on the Lot. If such deposits occur, the Lot
Owner shall make provisions to remove such deposits within one (1) day or the
Committee may remove such deposits and charge the Lot Owner.
Section 4.15.6 All Utility services to the Lot, including but not limited to water,
power, sanitary sewers, telephone and cable, shall be shown on the plat and said
service shall not undermine the curbs or alter the subsurface or surface drainage
system.
Section 4.16 Drainage. The drainage plan required to be submitted to the Committee
shall show the topography of the Lot and the proposed method of drainage. In the event that
storm water drainage from any Lot or Lots flows across another Lot, provision shall be made
by the Owner of such Lot to permit such drainage to continue without restriction or reduction
across the downstream Lot and into the natural drainage channel or course, although no specific
drainage easement for such flow of water is provided on the Plat. To the extent not maintained
by the drainage board or by the Association as provided in this Agreement, "Drainage
Easements" reserved as drainage swales shall be maintained by the Owner of the Lot upon which
such easements are located such that water from any adjacent Lot shall have adequate drainage
along such swale. The elevation of a Lot shall not be changed so as to affect materially the
surface elevation or grade of surrounding Lots. Perimeter foundation drains, sump pump drains
and down spouts shall not be discharged into streets or street rights-of-way. These drains shall
be connected whenever feasible into a subsurface drainage tile. Each Owner shall maintain the
subsurface drains and tiles located on his Lot and shall be liable for the cost of all repairs thereto
or replacements thereof.
Section 4.17 Landscaping. All landscaping within the Real Estate shall comply with the
municipal code of Carmel, Indiana. No landscaping shall be permitted on any Common Area
except with the approval of the Committee. The front yards of all Lots must be sodded, and
side and rear yards must be seeded and covered with straw. The front yards of all Residences
must be landscaped, and plans for all landscaping visible from the street must be submitted to
and approved by the Committee. All front yard landscaping, and the sodding, seeding and
strawing of the Lot, shall be installed by the Builder concurrently with the construction of the
Residence and shall be installed not later than the date of initial occupancy of the Residence;
provided, however, that if construction of the Residence is completed or initial occupancy occurs
between November 1 of any year and March 31 of the next following, the installation of the
landscaping may be delayed, but shall in any event be completed not later than the following
May 31.
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SECTION S. MTMERSHIP IN THE ASSOCIATION.
Section 5.1 The Organization. The Association is a non-profit corporation organized
under the laws of the State of Indiana. Its affairs shall be governed by and it shall have such
powers as are set forth in the documents. It is the Association of Owners within Delaware
Trace.
Section 5.2 Membership. Each Owner (including Declarant for so long as Declarant is
an Owner) by virtue of being an Owner, shall be a Member of the Association. No other person
shall be accepted as a Member.
Section 5.2.1 Appurtenant to Ownership. Association membership is appurtenant
to and may not be separated from the ownership of a Lot. Membership shall
terminate upon termination of Lot ownership. Ownership of a Lot shall be the
sole qualification for Association membership. Membership shall not be
transferred, pledged or alienated in any way except upon transfer of title to the
Owner's Lot (and then only to the transferee of title to such Lot). Any attempt
to make a prohibited transfer is void. The rights, duties, privileges and
obligations of all Members shall be provided in the documents.
Section 5.3 Classes of Membership. The Association shall initially have two (2) classes
of Members:
Section 5.3.1 Class "A" Members. Each Owner except Declarant shall be a
Class "A" Member. Only one (1) vote for each Lot owned by a Class A
Member(s) may be cast. The vote for each Lot shall be cast as a majority of co-
owners of the Lot shall determine. Any vote cast by a single Member shall be
deemed the authorized vote for the Lot. If the majority of co-owners present in
person or by proxy at a meeting cannot agree as to how to cast the vote for their
Lot, no vote shall be cast for that Lot. The power to cast a particular Member's
vote may be exercised by (i) the Member's conservator; (ii) the guardian of his
estate; (iii) the parent(s) entitled to custody of a Member if the Member is a
minor; or (iv) the executor or administrator of a deceased member's estate if the
Member's interest in the Lot is subject to administration in his estate.
Section 5.3.2 Class "B" Members. Declarant shall be the sole Class "B"
Member. The Declarant shall be entitled to three (3) votes for each Lot it owns.
Class B membership shall expire and shall be converted (the "Control Transfer
Date") to Class A Membership on the first to occur of the following events:
(a) When the total votes outstanding in Class A membership equals the
total votes outstanding in Class B; or,
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13 -
(b) When in its sole discretion the Declarant shall determine.
Section 5.3.3 Conversion of Class B Membership. Upon the conversion of Class
A Membership to Class B Membership, but while Declarant still owns one or
more Lots, each provision of the documents which requires approval by a certain
percentage of each class of Members shall instead require: (i) the approval of
said percentage of all Members; and (ii) the approval of said percentage of all
Members other than Declarant. After Declarant no longer owns a Lot, each
provision of the documents which requires the approval of a certain percentage
of each class of Members shall instead require the approval of said percentage of
all Members.
SECTION 6. RESTRICTIONS ON THE USE OF THE REAL ESTATE.
In order to preserve the character of the Real Estate and to protect the property values
therein and without intending to limit the generality of the foregoing provisions, the following
protective covenants and restrictions are imposed as a common scheme upon the Real Estate and
shall be applicable to each Lot and to each Residence constructed upon a Lot within the Real
Estate.
Section 6.1 Parking. No vehicle nor any inoperable vehicles shall be parked for storage
overnight or longer in such a manner as to be visible to occupants of the Real Estate or the users
of any public street within the Real Estate, provided, however, that nothing herein shall prevent
the parking of operable automobiles in the driveway of a Residence. All commercial vehicles
must be parked overnight within an enclosed garage. No boats, campers, trailers of any kind,
buses, mobile homes, trucks or any other unconventional vehicles of any description shall be
permitted, parked or stored anywhere within the Real Estate; provided, however, that nothing
herein shall prevent the parking or storage of such vehicles completely enclosed within a garage.
Section 6.2 Temporary Structures. No Residence shall be occupied prior to completion,
and there shall be no temporary living quarters constructed within the Real Estate. No trailer,
basement, tent, shack, detached garage, barn, shed or other outbuilding shall be erected on any
Lot without prior approval of the Committee, and no such structure, if approved, shall at any
time be used as a residence, temporarily or permanently, nor shall any structure of a temporary
character be used as a Residence. The restrictions of this Section 6.2 shall not be construed so
as to prohibit the Declarant from maintaining a temporary construction and sales office as
referenced in Section 4.6 of this Declaration.
Section 6.3 Animals and Pets. No animals, livestock or poultry of any kind may be
raised, bred, kept or permitted on any Lot with the exception of dogs, cats or other usual and
common household pets in reasonable number. No pets shall be kept, bred or maintained for
any commercial purpose. Dogs which are household pets shall be confined on a leash at all
times whenever they are outside a Residence. Each Owner shall be responsible for removal of
his or her pet's waste from Common Areas.
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Section 6.4 Nuisance. It shall be the responsibility of each Owner of a Residence to
prevent the development of any unclean, unhealthy, unsightly, or unkempt condition of the
Owner's Residence. No Residence shall be used, in whole or in part, for the storage of any
property or thing that will cause such Residence to appear to be in an unclean or untidy
condition or that will be obnoxious to the eye; nor shall any substance, thing or material be kept
upon any Residence that will emit fowl or obnoxious odors or that will cause any noise or other
condition that will or might disturb the peace, quiet, safety, comfort, or safety of the occupants
of any Residence or Lot, nor shall anything be done thereon tending to cause embarrassment,
discomfort, annoyance, or nuisance to any person using any property adjacent to the Residence.
There shall not be maintained any plants, animals, device, or thing of any sort whose activities
or existence in any way is noxious, dangerous, unsightly, unpleasant, or of a nature as may
diminish or destroy the enjoyment of the Real Estate. Yard incinerators for the disposal or
burning of trash shall not be permitted anywhere within the Real Estate. No firearms or hunting
weapons of any kind shall be used anywhere within the Real Estate.
Section 6.5 Garbage Cans, Woodpiles, Etc. All garbage cans, woodpiles, and other
similar items shall be located or screened so as to be concealed from view of the neighboring
Residences, streets, and other living quarters located adjacent to the Residence. Firewood piles
shall be kept neat and unobtrusive. The Committee has the authority to determine the location
of any firewood piles. All rubbish, trash, and garbage shall be regularly removed from the
Residence and shall not be allowed to accumulate thereon. The Association shall provide regular
trash collection and removal.
Section 6.6 Signs. No sign of any kind, including any "For Sale" signs, shall be nailed
to any tree or attached to any street sign within the Real Estate. No sign of any kind shall be
displayed to the public view upon any Lot or otherwise within the Real Estate except (i) one
family name sign of not more than 144 square inches in area, (ii) any signs utilized by the
Declarant or approved by the Committee for use by the Builders , or (iii) a sign limited in size
to 24 inches by 36 inches containing the words "For Sale" or "For Rent" indicating the name
of the seller, seller's agent or lessor and phone number.
Section 6.7 Subdivision of a Lot. There shall be no subdivision of any Lot within the
Real Estate nor any sale thereof in parcels except that a portion of a Lot may be sold to an
adjoining Lot if no new Lot is created and if the transferor obtains the prior written approval
of the Committee. The setback requirements set out in Section 4.5 cannot be waived.
Section 6.8 Trash Receptacles. Every receptacle for ashes, trash, rubbish or garbage
shall be so placed and kept as not to be visible from any street within the Real Estate at any
time, except at the times when refuse collections are made.
Section 6.9 Drilling and Exploration. No oil drilling, oil development operations, or
refining, quarrying, or mining operations of any kind shall be permitted upon or within the Real
Estate, nor shall oil wells, tanks, tunnels, mineral excavations, nor shafts be permitted upon or
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in any Lot. No derrick or other structure designed for use in boring for oil or natural gas shall
be erected, maintained or permitted upon any Lot.
Section 6.10 Ditches and Swales. It shall be the duty of every Owner of every Lot on
which any part of an open storm drainage ditch or swale is situated to keep such portion thereof
as may be situated upon his Lot continuously unobstructed and in good repair, and to provide
for the installation of such culverts upon said Lot as may be reasonably necessary to accomplish
the purposes of this subsection, except to the extent provided in Section 3.2 hereof. All Lot
Owners, if necessary, shall install dry culverts between the road rights-of-way and their Lots in
conformity with specifications and recommendations of the Committee.
Section 6.11 Line of Sight. No fence, wall, hedge, or shrub planting which obstructs
sight lines at elevations between two (2) and six (6) feet above any street, public or private, shall
be placed or permitted to remain on any comer Lot within the triangular area formed by the
street boundaries and a line connecting them at points twenty (20) feet from the intersection of
the street lines, or in the case of a rounded property comer, from the intersection of the street
property lines extended. No tree shall be permitted to remain within such distance of such
intersection unless the foliage line is maintained at sufficient height to prevent obstruction of
such sight lines.
Section 6.12 Damaged Structures. No Residence which has been partially or totally
destroyed by fire or otherwise shall be allowed to remain in such state for more than three (3)
months from the time of such destruction or damage.
Section 6.13 Clotheslines, Outdoor clotheslines are prohibited.
Section 6.14 Playground Equipment. All playground equipment must be approved for
safety, placement and aesthetics by the Committee prior to installation. The color, size and
location of playground equipment will be factors in determining if the playground equipment is
approved.
a Lot. Section 6.15 Outside Burning. No trash, leaves, or other material shall be burned upon
Section 6.16 Electric Bug Killers. Electric bug killers, "zappers" and other similar
devices shall not be installed at a location or locations which will result in the operation thereof
becoming nuisance or annoyance to other owners and shall only be operated when outside
activities require the use thereof and not continuously.
Section 6.17 Maintenance of Lots and Improvements. The Owner of any Lot shall at
all times maintain the Lot and any Residence, Building or other structures situated thereon in
such manner as to prevent the Lot, Residence, building or other structure from becoming
unsightly. The Lot Owner shall keep the exterior of the Residence, Buildings, and other
structures in such a state of repair or maintenance as to avoid their becoming unsightly.
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Section 6.18 Maintenance of Common Area. The Owner of any Lot shall at all times
refrain from creating any condition that reasonably tends to detract from or diminish the
aesthetic appearance of the Common Areas.
Section 6.19 The Owner of any Lot shall do the following:.
Section 6.19.1 Mow the Lot at such times as may reasonably be required in
order to prevent the unsightly growth of vegetation and weeds and exercise good
husbandry with respect to all landscaping located thereon.
Section 6.19.2 Remove all debris or rubbish from the Lots.
Section 6.19.3 Prevent the existence of any other condition that reasonably tends
to detract from or diminish the aesthetic appearance of the Real Estate.
Section 6.19.4 Maintain the tree plot and landscaping between the sidewalk and
any public street adjacent to the Owner's Lot.
Section 6.19.5 Maintain the tree plot and landscaping, if any, between the
Owner's Lot and the curb of any public street adjacent to the Owner's Lot.
SECTION 7. ENFORCEMENT.
The provisions of this Declaration shall be liberally construed to effect the purpose of
creating a uniform plan for the development and operation of the Real Estate. In the event that
any Owner fails fully to observe and perform the obligations set forth in this Declaration, and
in the further event that such failure is not cured within thirty (30) days after written notice of
the same is given by the Committee or the Board of Directors, to such Owner, the Committee
or the Board of Directors shall have the right to commence judicial proceedings, to abate or
enjoin such failure, and to take such further action as may be allowed at law or in equity to
correct such failure after commencement of such proceedings. If the Committee or the Board
does not take action after receiving notice, then any Owner is entitled at the Owner's expense
to pursue any available legal remedy to enforce this Declaration. In the event that such failure
causes or threatens to cause immediate and substantial harm to any property outside of such
defaulting Owner's Lot or to any person, the Committee or the Board of Directors shall have
the right to enter upon such Lot for the purpose of correcting such failure and any harm or
damage caused thereby without any liability whatsoever on the part of the Committee or the
Board of Directors. The failure or forbearance by the Committee, the Board of Directors, or
an Owner to enforce any covenant or restriction herein contained shall in no event be deemed
a waiver of the right to do so thereafter. There shall be and there is hereby created and declared
to be a conclusive presumption that any violation or breach or any attempted violation or breach
of any of the covenants or restrictions contained in this Declaration cannot be adequately
remedied by an action at law and that injunctive relief is appropriate. All costs incurred by the
Committee or the Board of Directors in connection with any act or proceeding undertaken to
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abate, enjoin, or correct such failure, including attorney's fees, shall be payable by the
defaulting Owner upon demand by the Committee or the Board of Directors, and shall
immediately become a lien against his Lot. However, no lien under this section shall be
superior to (a) a lien, encumbrance, or secured interest recorded before the recordation of a lien
under this section, (b) a lien for real estate taxes and other governmental assessments or charges
against the Lot, or (c) any purchase money mortgage. The rights in the Owners, the Committee
or the Board of Directors under this section shall be in addition to all other enforcement rights
thereunder or at law or in equity.
SECTION 8. ASSESSMENT AND COLLECTION OF COMMON EXPENSES.
Section 8.1 Payment of Regular Assessments. Regular Assessments for each fiscal year
shall be established when the Board approves the budget for that fiscal year, which shall be at
least thirty (30) days in advance of each annual assessment period. Regular Assessments shall
be levied on a fiscal year basis. There shall be Regular Assessments based on the services
provided by the Association and the reserves needed for Common Area expenses.
Unless otherwise specified by the Board, Regular Assessments shall be due and payable
in monthly installments by each Lot Owner on the first day of each month during the term of
this Declaration. Regular Assessments shall commence as to each Lot on the first day of the
month following the conveyance of such Lot by the Declarant to an Owner. Until January I of
the year immediately following the conveyance of the first Lot in the Real Estate to an Owner,
the maximum annual Regular Assessment shall be $ per Lot.
Section 8.2 Budgeting. Regardless of the number of Members or the amount of assets
of the Association, each year the Board shall prepare, approve and make available to each
Member a pro forma operating statement (budget) containing: (i) estimated revenue and expense
on an accrual basis; (ii) the amount of the total cash reserves of the Association currently
available for replacement or major repair on Common Area and for contingencies; (iii) an
itemized estimate of the remaining life of, and the methods of funding to defray repair,
replacement or additions to, major components of the Common Area; (iv) a general statement
setting forth the procedures used by the Board in the calculation and establishment of reserves
to defray the costs of repair, replacement or additions to major components of the Common
Area. Written notice of the Regular Assessment shall be sent to every Owner. The total amount
of expenses common and chargeable to all Owners shall be charged equally against all Lots in
the Real Estate as Regular Assessments, with each Lot being responsible for a portion of the
total amount of Regular Assessments based upon the amount resulting from multiplying the total
amount of Regular Assessments by a fraction, the numerator of which is 1 and the denominator
of which is the total number of Lots actually platted, subject to the limitations set forth in the
By-Laws. Each year the Board shall prepare and approve the budget and distribute a copy
thereof to each Member with written notice of the amount of the Regular, Assessment to be
levied against the Owner's Lot not less than thirty (30) days prior to the beginning of the fiscal
year. The Regular Assessment shall not increase in any fiscal year by more than the greater of
(i) 8%, or (ii) the percentage increase in the Consumer Price Index (all items) from the end of
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the preceding fiscal year to the end of the month prior to the establishment of the annual budget,
without the approval of two-thirds (2/3) of the Members.
Section 8.3 Non-Waiver of Assessments. If before the expiration of any fiscal year the
Association fails to fix Regular Assessments for the next fiscal year, the Regular Assessment
established for the preceding year shall continue until a new Regular Assessment is fixed.
Section 8.4 Exemptions from Assessments. Declarant is exempt from payment of all
Regular and Special Assessments so long as Declarant remains fully responsible for all common
expenses not covered by the Regular and Special Assessments collected from Lot Owners other
than Declarant.
Section 8.5 Special Assessments. Subject to the limitations in the By-Laws, Special
Assessments may be levied in addition to_Regular Regular Assessments for (i) constructing capital
improvements; (ii) correcting an inadequacy in the Current Operation Account; (iii) defraying,
in whole or in part, the cost of any construction, reconstruction, unexpected repair or
replacement of improvements in the Lot(s) or Common Area; or (iv) paying for such other
matters as the Board may deem appropriate for the Real Estate. Special Assessments shall be
levied in the same manner as Regular Assessments. Regular Assessments and Special
Assessments may be referred to herein together or individually as an "Assessment".
Section 8.6 Common Expenses Attributable to Fewer Than All Lots.
(a) Any Common Expense for services provided by the Association to any individual
Lot at the request of the Lot Owner shall be assessed against the Lot which benefits from
such service.
(b) Any insurance premium increase to the Association attributable to a particular Lot
by virtue of activities in or construction on the Lot shall be assessed against that Lot.
(c) An assessment to pay a judgment against the Association may be made only
against the Lots at the time the judgment was entered in proportion to their Common
Expense liabilities.
(d) If a Common Expense is caused by the misconduct of a Lot Owner, the
Association may assess that expense exclusively against the Owner's Lot, to the extent
responsible under the laws of the State of Indiana.
(e) Fees, charges, late charges, fines, collection costs, and interest charged against
a Lot Owner pursuant to the documents are enforceable as Regular Assessments.
Section 8.7 Lien.
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(a) Any Assessment shall be deemed delinquent ten (10) days after its due date. The
Association shall have a lien on a Lot for a delinquent Assessment levied against the Lot
or fines imposed against its Lot Owner from the time the Association records a Notice
that the Assessment is delinquent. If an Assessment is payable in installments, the full
amount of the Assessment is delinquent if not paid to the Association within ten (10) days
of the due date of the installment.
(b) A lien under this Section is prior to all other liens and encumbrances on a Lot
except: (1) a lien, encumbrance, or secured interest recorded before the recordation of
the Notice referenced in subsection 8.6(a) above; and (2) liens for real estate taxes and
other governmental assessments or charges against the Lot, and (3) any purchase money
mortgage.
(c) Recording of a Notice of Delinquency constitutes record notice and perfection of
the lien. Further recording of a claim of lien for Assessment under this Section is not
required.
(d) A lien for an unpaid Assessment is extinguished unless proceedings to enforce the
lien are instituted within three (3) years after the Notice is recorded; provided, that if an
Owner of a Lot subject to a lien under this Section files a petition for relief under the
United States Bankruptcy Code, the period of time for instituting proceedings to enforce
the Association's lien shall be tolled until thirty (30) days after the automatic stay of
proceedings under Section 352 of the Bankruptcy Code is lifted.
(e) This Section does not prohibit an action to recover sums for which Subsection (a)
of this Section creates a lien.
(f) Any steps taken by the Association to collect sums due or to enforce a lien under
this Section shall entitle the Association to add to the amount due its costs and reasonable
attorney's fees plus interest on all delinquent sums at the rate of 10% per year.
(g) A judgment or decree in an action brought under this Section is enforceable by
execution under the laws of the State of Indiana.
(h) The Association's lien may be foreclosed at such time as a mortgage on real estate
is foreclosed and in the manner in which mechanic's liens are foreclosed under Indiana
law.
(i) In any action by the Association to collect Assessments or to foreclose a lien for
unpaid Assessments, the court may appoint a receiver of the Owner to collect all sums
alleged to be due from that Owner prior to or during the pendency of the action. The
court may order the receiver to pay any sums held by the receiver to the Association
during the pendency of the action, to the extent of the Association's Regular Assessment
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based on a periodic budget adopted by the Association pursuant to Section 8.2 of this
Declaration.
0) Any payments received by the Association in the discharge of an Owner's
obligation may be applied to the oldest balance due.
Section 8.8 Ratification of Non-budgeted Assessments. If the Board votes to levy an
Assessment not included in the current budget in an amount greater than fifteen percent (15%)
of the current annual operating budget, the Board shall submit such Common Expense to the
Owners for ratification in the same manner as a budget.
Section 8.9 Certificate of Payment of Assessments. The Association upon written
request shall furnish to an Owner a statement in recordable form setting out the amount of
unpaid Assessments against the Owner's Lot. The statement must be furnished within ten (10)
days after receipt of the request and is binding on the Association.
Section 8.10 No Waiver of Liability for Common Expenses. No Owner may exempt
himself or herself from liability for payment of Common Expenses by waiver of the use or
enjoyment of the Common Area or by abandonment of the Lot against which the assessments
are made.
Section 8.11 Personal Liability of Owners. The Owner of a Lot at the time an
Assessment or portion thereof is due and payable is personally liable for the Assessment.
Personal liability for the Assessment shall not pass to a successor in title to the Lot unless he
or she agrees to assume the obligation.
Section 8.12 Accounts. Assessments collected by the Association shall be deposited into
at least two (2) separate checking accounts with a bank and/or savings and loan association,
which accounts shall be clearly designated as (i) the Current Operation Account and (ii) the
Reserve Account. The Board shall deposit those portions of the Assessments collected for
current maintenance and operations into the Current Operation Account and shall deposit those
portions of the Assessments collected on reserves or contingencies and for replacement and
deferred maintenance of capital improvements into the Reserve Account.
Section 8.13 Current Operation Account. All of the following may be paid from the
Current Operation Account:
(a) All costs of enforcing the provisions of any Declaration applicable to any portion
of the Real Estate;
(b) Taxes and assessments, if any, levied or assessed separately against the Common
Area;
- 2.1 -
(c) Sums necessary to discharge any lien or encumbrance, including taxes, levied
against any Lot which constitutes a lien against a portion of the Common Area;
(d) Insurance premiums and costs for policies purchased for the benefit of the
Association;
(e) Water, sewer, garbage, trash, electrical, gas, telephone and other necessary utility
services for the Common Area;
(f) Costs of routine maintenance, repair and upkeep of improvements in the Common
Area; and,
(g) All other goods, materials, supplies, furniture, labor, services, maintenance'
repairs or alterations which the Association is authorized to secure and pay for pursuant
to the terms of this Declaration or by law other than those to be expended from the
Reserve Account.
Section 8.14 Reserve Account. The Association shall pay out of the Reserve Account
only those costs that are attributable to the maintenance, repair, or replacement of capital
improvements for which reserves have been collected and held. No portion of a reserve
designated for a particular capital improvement may be expended for any purpose other than the
maintenance or replacement of that capital improvement; provided, however, that if due to
dedication of a public street or annexation of the Real Estate such that the municipality accepts
responsibility for items covered by a portion of the reserve, the Board shall determine whether
to use such funds for another purpose or to refund the excess to the Owners having title to a Lot
at the time of the proposed refund; however, there is no implied guarantee or promise that such
refund will be made. Except for funds collected for contingencies, no funds collected for the
Reserve Account may be used for ordinary current maintenance and operation purposes.
SECTION 9. ARCHITECTURAL CONTROL COMMITTEE.
Section 9.1 Power of Committee.
Section 9.1.1 In General. In order to preserve the natural quality and aesthetic
appearance of the existing geographic area, no Residence, building structure, or
improvement of any type or kind shall be repainted, constructed or placed on any
Lot in the Real Estate, no existing trees shall be removed and no landscaping
placed on Common Area without the prior written approval of the Architectural
Control Committee (the "Committee"). Unless the Committee waives these
requirements, such approval shall be obtained only after written application has
been made to the Committee by the Owner of the Lot requesting authorization
from the Committee. Such written application shall be in the manner and form
prescribed from time to time by the Committee and shall be accompanied by two
(2) complete sets of plans and specifications of any such proposed construction
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or improvement. Such plans shall include the location of all improvements
existing upon the Lot and the location of the improvement proposed to be
constructed or placed upon the Lot, each properly and clearly designated. Such
plans and specifications shall set forth the color and composition of all exterior
materials proposed to be used and any proposed landscaping together with any
other material or information which the Committee may require. All plans and
drawings required to be submitted to the Committee shall be drawn to a scale of
one quarter inch (1/4") equals one foot (1'), or to such other scale as the
Committee may require. There shall also be submitted, where applicable, the
permits or plat plans which shall be prepared by either a registered land surveyor,
an engineer or an architect.
Section 9.1.2 Power of Disapproval. The Committee may refuse to grant
permission to remove trees,-repaint, construct, place or make the requested
improvement when:
(a) the plans, specifications, drawings or other material submitted are
themselves inadequate or incomplete or show the proposed improvement
to be in violation of this Declaration; or,
(b) the design or color scheme of a proposed repainting or
improvement is not in harmony with the general surroundings of the Lot
or with adjacent Residences or structures; or,
(c) the proposed improvement, or any part thereof, or proposed tree
removal would in the opinion of the Committee be contrary to the interest,
welfare or rights of all or any part of the other Owners.
Section 9.1.3 Declarant Improvements. The Committee shall have no powers
with respect to any improvements or structures erected or constructed by the
Declarant (or any Builder if Declarant has approved the plans therefor).
Section 9.2 Duties of Committee. The Committee shall approve or disapprove proposed
improvements within thirty (30) days after all required information shall have been submitted
to it. One copy of submitted material shall be retained by the Committee for its permanent files.
All notifications to applicants shall be in writing, and in the event that such notification is one
of disapproval, it shall specify the reason or reasons for such disapproval.
Section 9.3 Liability of Committee. Neither the Committee nor any agent thereof, nor
Declarant, shall be responsible in any way for any defects in any plans, specifications or other
materials submitted to it, nor for any defects in any work done according thereto.
Section 9.4, Inspection. The Committee may inspect work being performed with its
permission to assure compliance with this Declaration and applicable regulations.
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Section 9.5 Membership. The Committee shall consist of members designated by the
Declarant until the Control Transfer Date. After the Control Transfer Date, the Committee shall
consist of three (3) Owners selected from time to time through the written approval of two-thirds
(2/3) of all Owners and Class A Members. Membership on the Committee may be changed and
vacancies shall be filled from time to time upon the written approval of a least two-thirds (2/3)
of all the Owners; provided, however, that in the event of a vacancy on the Committee, the
remaining two (2) Committee members may appoint an Owner to the Committee to serve until
the requisite percentage of Owners, as aforesaid, shall otherwise appoint an Owner to fill such
vacancy.
Section 9.6, Approvals. Approvals, determinations, permissions or consent required
herein shall be deemed given if they are given in writing signed with respect to the Committee
by two members thereof (except during the period of time that the Declarant controls the
Committee, in which event the written approval of an authorized member or agent of Declarant
shall suffice).
SECTION 10. RIGHTS OF MORTGAGEES.
Except to the extent otherwise provided herein, no breach of these Restrictions shall
defeat or render invalid the lien of any mortgage now existing or hereafter executed upon any
portion of the Real Estate; provided, however, that if all or any portion of said Real Estate is
sold under a foreclosure of any mortgage, any purchaser at such sale and his successors and
assigns shall hold any portion of the Real Estate so purchased subject to this Declaration.
Notwithstanding any other provision of this Declaration, neither the Declarant, the Owners nor
the Committee shall have any right to make any amendment to this Declaration which materially
impairs the rights of any Mortgagee holding, insuring, or guaranteeing any Mortgage on all or
any portion of the Real Estate at the time of such amendment
SECTION 11. INSURANCE.
Section 11.1 Coverage. To the extent reasonably available, the Board shall obtain and
maintain insurance coverage as set forth in this Section. If such insurance is not reasonably
available, and the Board determines that any insurance described herein will not be maintained'
the Board shall cause notice of that fact to be hand-delivered or sent prepaid by United States
mail to all Owners and eligible Mortgagees at their respective last known addresses.
Section 11.2 Property Insurance.
(a) Property insurance covering one hundred percent (100%) of the actual
replacement cost value of the following shall be obtained by the Association:
(i) The Common Area; and,
(ii) Any personal property owned by the Association.
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(b) Risks Insured Against. The insurance shall afford protection against "all risks"
of direct physical loss commonly insured against.
(c) Other Provisions. Insurance policies required by this Section shall provide that:
(i) The insurer waives the right to subrogation under the policy against the
Lot or member of the household of an Owner;
(ii) An act or omission by an Owner, unless acting within the scope of the Lot
Owner's authority on behalf of the Association, will not void the policy or be a
condition to recovery under the policy.
(iii) If at the time of a loss under the policy, there is other insurance in the
name of an Owner covering the same risk covered by the policy, the
Association's policy provides primary insurance;
(iv) Loss must be adjusted with the Association;
(v) Insurance proceeds shall be paid to any insurance trustee designated in the
policy for that purpose, and in the absence of such designation, to the
Association, in either case to be held in trust for Owner and such Owner's
mortgagee;
(vi) The insurer may not cancel or refuse to renew the policy until thirty (30)
days after notice of the proposed cancellation or non-renewal has been mailed to
the Association, each Owner and each holder of a security interest to whom a
certificate or memorandum of insurance has been issued at their respective last
known addresses;
Section 11.3 Liability Insurance. Liability insurance including medical payments
insurance in an amount determined by the Board but in no event less than One Million Dollars
($1,000,000) covering all occurrences commonly insured against for death, bodily injury and
property damage arising out of or in connection with the use, ownership of maintenance of the
Common Area and the activities of the Association.
(a) Other Provisions. Insurance policies carried pursuant to this Section shall provide
that:
(i) Each Owner is an insured person under the policy with respect to liability
arising out of the Owner's interest in the Common Area or membership in the
Association;
(ii) The insurer waives the right to subrogation under the policy against a Lot
Owner or member of the household of an Owner;
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(iii) An act or omission by an Owner, unless acting within the scope of the
Owner's authority on behalf of the Association, will not void the policy or be a
condition to recovery under the policy;
(iv) If at the time of a loss under the policy there is other insurance in the
name of an Owner covering the same risk covered by the policy, the policy of the
Association provides primary insurance; and,
(v) The insurer issuing the policy may not cancel or refuse to renew it until
thirty (30) days after notice of the proposed cancellation or non-renewal has been
mailed to the Association, each Owner and each holder of a Security Interest to
whom a certificate or memorandum of insurance has been issued at their last
known addresses.
Section 11.4 Fidelity Bonds. A blanket fidelity bond is required for anyone who either
handles or is responsible for funds held or administered by the Association whether or not they
receive compensation for their services. The bond shall name the Association as obligee and
shall cover the maximum funds that will be in the custody of the Association or the manager at
any time while the bond is in force and in no event less than the sum of three months'
assessments plus reserve funds. The bond shall include a provision that calls for ten (10) days
written notice to the Association, to each holder of a Security Interest in a Lot, to each servicer
that services a FNMA owned or FHLMC owned mortgage on a Lot and to the insurance trustee,
if any, before the bond can be canceled or substantially modified for any reason.
Section 11.5 Owner Policies. Each Owner shall carry fire and extended coverage
insurance on his Lot including the exterior. The Association, or Declarant pursuant to its rights
reserved hereunder, may adopt rules and regulations governing the minimum amounts of
insurance required to be carried by all Owners, certain provisions of which may be required to
be included in all such insurance policies, and such other terms and provisions pertaining to
insurance which may reasonably be deemed necessary or appropriate (1) to assure that all Lots
and sites are insured and that there will be proceeds, of insurance to repair or restore the same
in the event of a casualty loss thereto, or (2) other-wise to assist or to simplify problems of
coordinating insurance coverage between the Owners and the Association.
Section 11.6 Workers' Compensation Insurance. The Board shall obtain and maintain
Workers' compensation Insurance to meet the requirements of the laws of the State of Indiana.
Section 11.7 Directors' and Officers' Liability Insurance. The Board may obtain and
maintain directors' and officers' liability insurance covering all of the directors and officers of
the Association in such limits as the Board in its sole discretion may from time to time
determine.
Section 11.8 Other Insurance. The Association may carry other insurance which the
Board of Directors considers appropriate to protect the Association of the Owners.
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Section 11.9 Premiums. Insurance premiums for insurance maintained by the
Association pursuant to this Section 11 shall be a Common Expense.
SECTION 12. DAMAGE TO OR DESTRUCTION OF PROPERTY.
Section 12.1 Duty to Restore. A portion of the Common Area for which insurance
carried by the Association is in effect that is damaged or destroyed must be repaired or replaced
promptly by the Association unless:
(a) Repair or replacement would be illegal under a state statute or municipal
ordinance governing health or safety; or,
(b) Eighty percent (80%) of the Owners including each Owner of a Lot that will not
be rebuilt vote not to rebuild.
Section 12.2 Cost. The cost of repair or replacement in excess of insurance proceeds
and reserves is a Common Expense.
Section 12.3 Plans. The Property must be repaired and restored in accordance with
either the original plans and specifications or other plans and specifications which have been
approved by the Board, a majority of Owners and fifty-one percent (51%) of eligible
Mortgagees.
Section 12.4 Replacement of Less than Entire Property.
(a) The insurance proceeds attributable to the damaged Common Area shall be used
to restore the damaged area to a condition compatible with the remainder of the Real
Estate,
(b) Except to the extent that other persons will be distributees,
(i) The insurance proceeds attributable to a Lot that is not rebuilt must be
distributed to the Owner of the Lot or to lien holders as their interests may
appear.
(ii) The remainder of the proceeds must be distributed to each Lot Owner or
lien holder as their interests may appear in proportion to the Common Area
interests of all the Lots.
Section 12.5 Insurance Proceeds. The Trustee, or if there is no trustee, then the Board
of the Association acting by its President, shall hold any insurance proceeds in trust for the
Association, Lot Owners and lien holders as their interests may appear.
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Section 12.6, Certificates by the Board. The Trustee, if any, may rely on the following
certifications in writing made by the Board:
(a) Whether or not damaged or destroyed Property is to be repaired or restored.
(b) The amount or amounts to be paid for repairs or restoration and the names and
addresses of the parties to whom such amounts are to be paid.
Section 12.7 Certificates by Attorneys or Title Companies. If payments are to be made
to Owners or mortgagees, the Board and the Trustee, if any, shall obtain and may rely on a title
insurance company or attorney's title certificate of title or a title insurance policy based on a
search of the records of Hamilton County, Indiana, from the date of the recording of the original
Declaration stating the names of the Owners and the mortgagees.
SECTION 13, RIGHTS TO NOTICE AND HEARING.
Section 13.1 Right to Notice and Hearing. Whenever this Declaration requires that an
action be taken after "Notice and Hearing," the following procedure shall be observed: The
party proposing to take the action (e.g., the Board, a committee, an officer, the Manager, etc.)
shall give written notice of the proposed action to all Lot Owners or occupants of Lots whose
interest would be significantly affected by the proposed action. The Notice shall include a
general statement of the proposed action and the date, time and place of the hearing. At the
hearing the affected person shall have the right, personally or by a representative, to give
testimony orally, in writing or both (as specified in the notice), subject to reasonable rules of
procedure established by the party conducting the meeting to assure a prompt and orderly
resolution of the issues. Such evidence shall be considered in making the decision but shall not
bind the decision makers. The affected person shall be notified of the decision in the same
manner in which notice of the meeting was given.
Section 13.2 Appeals. Any person having a right to Notice and Hearing shall have the
right to appeal to the Board from a decision of persons other than the Board by filing a written
notice of appeal with the Board within ten (10) days after being notified of the decision. The
Board shall conduct a hearing within thirty (30) days giving the same notice and observing the
same procedures as were required for the original meeting.
SECTION 14, BOARD OF DIRECTORS.
Section 14.1 Powers and Duties. The Board of Directors may act in all instances on
behalf of the Association except as provided in this Declaration or the By-Laws. The Board
shall have, subject to the limitations contained in this Declaration, the powers and duties
necessary for the administration of the affairs of the Association and of the community which
shall include, but not be limited to, the following:
(a) Adopt and amend By-Laws, and rules and regulations;
- 28 -
(b) Adopt and amend budgets for revenues, expenditures and reserves',
(c) Collect assessments for Common Expenses from Owners;
(d) Hire and discharge managing agents;
(e) Hire and discharge employees and agents other than managing agents and
independent contractors;
(f) Institute, defend or intervene in litigation or administrative proceedings or seek
injunctive relief for violation of the Association's Declaration, By-Laws or rules and
regulations in the Association's name on behalf of the Association or two or more
Owners on matters affecting the community;
(g) Make contracts and incur liabilities;
(h) Regulate the use, maintenance, repair, replacement and modification of the
Common Area;
(i) Cause additional improvements to be made as a part of the Common Area;
0) Provide or hire others to provide landscape maintenance services for Owners;
(k) Acquire, hold, encumber and convey in the Association's name any right, title or
interest to real property or personal property;
(1) Grant easements for any period of time including permanent easements; and
leases, licenses and concessions for no more than one year through or over the Common
Area;
(m) Impose and receive a payment, fee or charge for the use, rental or operation of
the Common Area and for services, provided to Owners;
(n) Impose a reasonable charge for late payment of assessments and, after Notice and
Hearing, levy reasonable fines for violations of this Declaration, By-Laws, rules and
regulations of the Association;
(o) Provide for the indemnification of the Association's officers and Board and
maintain directors' and officers' liability insurance;
(p) Assign the Association's right to future income, including the right to receive
Common Expense Assessments;
(q) Exercise any other powers conferred by this Declaration or the By-Laws;
- 29 -
(r) Exercise any other powers that may be exercised in this state by legal entities of
the same type as the Association;
(s) Exercise any other powers necessary and proper for the governance and operation
of the Association; and
(t) By resolution, establish committees of directors, permanent and standing, to
perform any of the above functions under specifically delegated administrative standards
as designated in the resolution establishing the committee. All committees must maintain
and publish notice of their actions to Owners and the Board. However, actions taken by
a committee may be appealed to the Board by any Owner within forty-five (45) days of
publication of such notice and such committee action must be ratified, modified or
rejected by the Board at its next regular meeting.
SECTION 15. OPEN MEETINGS.
Section 15.1 Access. All meetings of the Board at which action is to be taken by vote
will be open to the Owners except as hereafter provided.
Section 15.2 Notice. Notice of every such meeting will be given not less than thirty (30)
days and not more than sixty (60) days prior to the time set for such meeting by written notice
sent to all Members posting such notice in a conspicuous location in the community, except that
such notice will not be required if an emergency situation requires that the meeting be held
without delay.
Section 15.3 Executive Sessions. Meetings of the Board may be held in executive
session without giving notice and without the requirement that they be open to Owners in either
of the following situations:
(a) No action is taken at the executive session requiring the affirmative vote of
Directors; or,
(b) The action taken at the executive session involves personnel, pending litigation,
contract negotiations, enforcement actions, or matters involving the invasion of privacy
of individual Owners, or matters which are to remain confidential by request of the
affected parties and agreement of the Board.
SECTION 16. CONDEMNATION OF COMMON AREA.
If all or any portion of the Common Area is taken for any public or quasi-public use
under any statute by right of eminent domain or by purchase in lieu of eminent domain, the
entire award shall be deposited into the Association's operating account until distributed. The
Association shall distribute such funds proportionately to all Owners as their interests appear
according to the respective fair market values of their Lots immediately prior to the time of
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condemnation as determined by an independent appraisal made by a qualified Real Estate
Appraiser with Member or the Appraisal Institute certificate or the equivalent as selected by the
Board. The Association shall represent the interests of all Owners.
SECTION 17. ANNEXATION OF ADDITIONAL PROPERTY.
Section 17.1 Annexation without Approval of Owners.
(a) As the owner thereof, or if not the owner, with the consent of the owner thereof,
Declarant shall have the unilateral right, privilege, and option, from time to time at any
time -until December 31, 2005, to subject to the provisions of this Declaration and the
jurisdiction of the Association all or any portion of the real property described in Exhibi
"D", attached hereto and by reference made a part hereof, and any other red estate
adjacent thereto or to the Real Estate as the same exists from time to time whether in fee
simple or leasehold, by filing in the Recorder's Office of Hamilton County, Indiana, an
amendment or Supplemental Declaration annexing such property. Such Supplemental
Declaration or amendment to this Declaration shall not require the vote or approval of
any Owners. Any such annexation shall be effective upon the filing for record of such
amendment or Supplemental Declaration unless otherwise provided therein.
(b) Declarant shall have the unilateral right to transfer to any other person the said
right, privilege, and option to annex additional property which is herein reserved to
Declarant, provided that such transferee or assignee shall be the developer of at least a
portion of said real property to be so annexed and that such transfer is memorialized in
a written, recorded instrument.
(c) The rights reserved unto Declarant to subject Additional Land to the Declaration
shall not be implied or construed so as to impose any obligation upon Declarant to
subject any of such Additional Land to this Declaration or to the jurisdiction of the
Association nor any obligation, if subjected, to build housing of the same type, design,
or materials. If such Additional Land is not subjected to this Declaration, Declarant's
reserved rights shall not impose any obligation on Declarant to impose covenants and
restrictions similar to those contained herein upon such Additional Land, nor shall such
rights in any manner limit or restrict the use to which the Additional Land may be put
by Declarant or any subsequent owner thereof, whether such uses are consistent with the
covenants and restrictions imposed hereby or not.
Section 17.2 Acquisition of Additional Common Area. Declarant may convey to the
Association additional real estate, improved or unimproved, which upon conveyance or
dedication shall be accepted by the Association and thereafter shall be maintained by the
Association as a Common Expense for the benefit of all Owners.
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Section 17.3 Amendment. This Article shall not be amended without the written consent
of Declarant, so long as the Declarant owns any property described in Exhibit A or Exhibit D
attached hereto.
SECTION 18. GENERAL PROVISIONS.
Section 18.1 Duration. This Declaration shall be perpetual, run with and bind all the
Real Estate subject to this Declaration and shall inure to the benefit of and be enforceable by the
Declarant, its respective successors, assigns, heirs, executors, administrators, and personal
representatives with the following exception:
The covenants and restrictions set forth in this Declaration shall have an initial term of
twenty (20) years from the date this Declaration is recorded in the Office of the Recorder of
Hamilton County, Indiana. At the end of this period, the covenants and restrictions shall be
automatically extended for successive periods of ten (10) years each unless at least two-thirds
(2/3) of all Owners within the Real Estate at the time of the expiration of the initial period or
any extension period shall sign an instrument or instruments (which may be in counterparts) in
which they shall agree to terminate any or all of said covenants and restrictions in any manner
as may be provided by law; however, no such Agreement shall become binding unless written
notice containing the terms of the proposed Agreement is sent to every Owner in the Real Estate
at least ninety (90) days in advance of the action taken in authorizing said Agreement, and, in
any event, any such Agreement shall not become effective and binding until three (3) years after
the recording of the aforesaid fully executed instrument or instruments containing such
agreement.
Section 18.2 Amendment of Declaration. Except as otherwise provided herein,
amendments to this Declaration shall be proposed and adopted in the following manner:
Section 18.2.1 Notice of the subject matter of the proposed amendment shall be
given to each Owner. Any proposed amendment to this Declaration must be
approved by not less than seventy-five percent (75%) of the Owners. Each
amendment to the Declaration shall be executed by the Owners casting votes in
favor of the amendment and shall be recorded in the Office of the Recorder of
Hamilton County, Indiana, and such amendment shall not become effective until
so recorded.
Section 18.2.2 Notwithstanding the foregoing or anything elsewhere contained
in this Declaration, Declarant shall have the right acting alone and without the
consent or approval of the Owners, Builders or any other person, to amend or
supplement this Declaration from time to time if such amendment or supplement
is required to:
(a) provide utility service to any Lot;
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(b) bring this Declaration into compliance with any statutory requirements;
(c) correct clerical or typographical errors in this Declaration or any exhibit hereto
or any supplement or amendment thereto; or,
(d) make any other amendment which in its sole discretion it deems necessary as long
as it is a Class B Member of the Association pursuant to Section 5.3.2 of this
Declaration.
Section 18.3 Notice. Any notice required to be sent to any Owner under the provisions
of this Declaration shall be deemed to have been properly sent and notice thereby given when
mailed by regular post with postage prepaid addressed to Owner at the last known post office
address of the person who appears as Residence Owner in the records of the Hamilton County
Auditor's Office. Valid notice may also be given to an Owner by (i) personal delivery to any
occupant of his Residence over fourteen (14) years of age; or, (ii) by affixing said notice to or
sliding same under the front door of his Residence.
Section 18.4 Severability. Should any covenant or restriction contained in this
Declaration or any article, section, subsection, sentence, clause, phrase or term of this
Declaration be declared to be void, invalid, illegal, or unenforceable for any reason by the
adjudication of any court or other tribunal having jurisdiction over the parties hereto and the
subject matter hereof, such judgment shall not in any manner affect the other provisions hereof,
which are hereby declared to be severable and which shall remain in full force and effect.
Section 18.5 Rule Against Perpetuities. If any provision of this Declaration shall be
interpreted to constitute a violation of the rule against perpetuities, then such provisions shall
be deemed to remain in effect until the death of the last survivor of the now living descendants
of the persons signing the Declaration on behalf of Declarant plus twenty-one (21) years
thereafter.
Section 18.6 Gender and Number. Whenever the context of this Declaration so requires,
the use of the masculine gender shall be deemed to refer to the feminine or neuter gender and
the use of the singular shall be deemed to refer to the plural and vice versa. No pronoun usage
shall be deemed to exclude a reference to an institution, corporation, partnership, or any other
type of business entity. The titles are for convenience of reference only and shall not be used
as an aid in construing the provisions thereof.
Section 18.7 Construction and Sale. Notwithstanding any provisions contained in the
Declaration to the contrary, so long as Declarant owns any Lots, it shall be expressly
permissible for Declarant, free of any and all charges therefor, to maintain and carry on upon
portions of the Common Area such facilities and activities as, in the sole opinion of Declarant,
may be reasonably required, convenient, or incidental to the construction or sale of such
residences, including, but not limited to, business offices, signs, model units, and sales offices,
and the Declarant shall have an casement for access to such facilities. The right to maintain and
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carry on such facilities and activities shall include specifically the right to use residences owned
by the Declarant as models and sales offices. This Section may not be amended without the
express written consent of the Declarant; provided, however, the rights contained in this Section
18.7 shall terminate upon the earlier of(a) twenty-five (25) years from the date this Declaration
is recorded or (b) upon the Declarant's recording a written statement that all sales activity has
ceased.
Section 18.8 Limitation on Declarant's Liability. Notwithstanding anything to the
contrary herein, it is expressly agreed, and each Owner, by accepting title to a Lot and
becoming an Owner acknowledges and agrees that neither Declarant (including without limitation
any assignee of the interest of Declarant hereunder) nor any director, officer or shareholder of
Declarant (or any partner, officer, director or shareholder in any such assignee) shall have any
personal liability to the Association, or any Owner, Member or other person, arising under, in
connection with, or resulting from (including without limitation resulting from action or failure
to act with respect to) this Declaration or the Association. If any judgment is ever levied against
Declarant (or its assignee), the same is hereby agreed to be limited to the extent of Declarant's
(or such assignee's) interest in the Development; and, in the event of a judgment no execution
or other action shall be sought or brought thereon against any other assets, nor be a lien upon
any other assets of Declarant (or its assignee).
IN WITNESS THEREOF, Declarant has executed this Declaration on the date and year
first above written.
OAK VIEW ASSOCIATES, LLC
By: MICLAR, INC., managing member
By•
-
J. Michael Scheetz, President
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STATE OF INDIANA
) SS:
COUNTY OF HAMILTON
Before me, a Notary Public in and for said County and State, personally appeared I.
Michael Scheetz, personally known to me to be the President and Secretary of MICLAR, Inc.,
the managing member of Oak View Associates, LLC, and acknowledged the execution of the
foregoing Declaration of Covenants, Conditions and Restrictions of Delaware Trace this
day of 1995.
Notary Public
Printed:
My Commission Expires:
This document was prepared by Mark D. Grant, Ice Miller Donadio & Ryan, One American
Square, Box 82001, Indianapolis, Indiana 46282, telephone: (317) 236-2100.
272237.1
- 35 -
EXHIBIT A - LEGAL DESCRIPTION
PARCEL I:
FART OF THE SC=rr7 EST QUARTER, OF SECTION 22 , A PART OF TEE
NORTHWEST QUARTER OF SECTION 27, AND A PART OF THE SOUTHEAST
QUARTER. OF SECTION 2.1, ALL IN TOWNSHIP 18 NORTH, RANGE 4 EAST
LOCATED IN CLAY TOWNSHIP, HAMILTON COUNTY, INDIANA, DESCRIBED AS
FOLLOWS:
COMMENCING AT A BRASS PLUG AT THE SOUTH-EAST CORNER OF THE
NORTHWEST QUARTER OF SAID SECTION 27 ; SCE NORTH 89 DEGREES 4
MINUTES 47 SECONDS WEST ALONG THE So= LINE OF SAID NORTHWEST
QUARTER A DISTANCE OF 2639-70 FEET TO THE SOUTHWEST CORNER, OF
SAID NORTHWEST QUARTER; THENCE NORTH 00 DEGREES 20 MZIfUTZS 43
SECONDS EAST ALONG THE WEST LINE OF SAID NORTHWEST QUARTER', A
DISTANCE OF 1794 .40 FEET TO THE POINT OF BEGSNNING; THENCE
CONTINi3ING NORTH oo DEGREES 20 MINUTES 43 SECONDS EAST ALONG
SAID WEST LINE A DISTANCE OF 852 . 04 FEETT TO THE NORTHWEST CORNER
OF SAID NORTHWEST QUARTER, THENCE NORTH D0 DEGREES 37 MINUTES
01 SECONDS EAST ALONG THE WEST LINE OF THE SOUTHWEST QUARTER OF
SAID SECTION 22 A DISTANCE OF 260. 1.1 FEET; THENCE NORTH 89
DEGREES 303 MINUTES 23 SECONDS WEST A DISTANCE OF 194 .90 FEET TO
THE CMMRLINE OF CHERRY TREE ROAD; THENCE NORTH 42 DEGREES 04
MINUTES 016 ,SECONDS EAST ALONG SAID CENTERLINE A DISTANCE OF
294.42 FEET; 'THENCE SOUTH 89 DEGREES 30 MINUTES 23 SECONDS EAST
A DISTANCE OF 59.51 FEET; THENCE SOUTH 00 DEGREES 25 MINUTES 20
SECONDS WEST A DISTANCE OF 402.37 FEET; THENCE NORTH 64 DEGREES
23 MINUTES 03 SECONDS EAST" A DISTANCE OF 509 . 69 FEET; THENCE
SO= 81 DEGREES 42 MINUTES 40 SECONDS EAST A DISTANCE OF 306.62
FEET; THENCE SOUTH 39 DEGREES 42 ;MINUTES 20 SECONDS EAST A
DISTANCE OF 179 .22 FEET; THENCE SOUTH 31 'DEGREES 20 MINUTES 48
SECOffDS EMT A DISTANCE OF 273 .70 Fes; THENCE SOUTH 61 DEGREES
14 MINUTES 33 SECONDS EAST A DISTANCE OF 213 . 30 FEET TO A POINT
OF CURVATURE OF A CURVE HAVING A RADIUS Of 375 . 00 FEET, THE
RADIUS FoINT OF WHIcli, BEARS SOUTH 61 DEGREES 14 MINUTES 33
SECONTD.S EAST; THENCE SOUTHERLY ALONG SAID CURVE AN ,ARC DISTANCE
OF 400 .97 FE."'T TO A POINT WHICH BEARS SOU"i'H 57 DEGrRMS 29
MINUTES 37 SECCNIDS WEST FROM SAID RADIUS POINT; THENCE SOUTH 32
DEGREES 3Q MINUTES 23 SECONDS EAST. A DISTANCE OF 136 .12 FEET;
THENCE SOUTH 57 DEGREES 29 MINUTES 37 SECONNDS WEST A DISTANCE OF
193 . 03 FEET; THENCE SOUTH 32 DEGREES 30 MZNUTZ5 23 SECONDS EAST
A DISTANCE OF 146. 19 FEET; THENCE SOUTH 89 DEGREES 54 MINUTES
27 SEC'OYDS EAST A DISTANCE OF 408 . 52 FEET; THENCE SOUTH 00
DEGREES 29 MINLS*i" :S 37 SECONDS WES'i' A DISTANCE OF 323 . 02 FEET TO
MOIBIT A -- C ONT'D
THE NORTH LINZ OF THE LyNNWOOD FARKS ASSOCIATES, L.T.D. LAND
TRACT DESCRIBED IN INSTRUMENT J8809203 AS RECORDED IN THE
HAMILTON COUNTY RECORDER'S OFFICE; THENCE NORTH 89 DIES 54
MINUTES 27 SECONDS WEST ALONG ,SAID NORTH DINE A DISTANCE OF
956.51 FED.'; THENCE NoF= 00 DEGREES 00 MINES 05 SECONDS EAST
A DISTANCE OF 98 .71 FEET; "HENCE NORTH 15 DEGREES 24 MINUTES 32
SECONDS WEST A DISTANCE OF 264 .23 FEET, THENCE SOUTH 83 DEGREES
29 FLUTES 37 SECONDS 'WEST A DISTANCE OF 115.98 FEET; THENCE
NORTH 89 DEGREES 54 MINES 27 SECONDS 'WEST" A DISTANCE OF 240.00
FEET; VICE NORT9 52 DEGREES 13 MINUTES 19 SECC?=S WEST A
DISTANCE OF 126.20 Fes; THENCE NOR'T'H 89 DEGREES 34 MINUTES 40
SECONDS WEST A DISTANCE OF 199. 16 FEE' TO THE PCINT OF
BEGINNING. CONTAINING 38.860 _ACRES, MORE OR LESS.
t
Y
-2-
EXHIBIT B
Master Development Plan
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EXHIBIT
Plat of Phase 1
- 37 -
EXHIBTT D
described real
The followin- estate joCated in Hamilton County,
0
Indiana:
Two and one-half acres out of the southeast Corner Of Section 21,
Township 18 North, Rance 4 East, described as follows:
c
Commencing at the Southeast Comer of said Sec tion; thence North
along the Section line to the gravel road formerly Imown as the
Noblesville and Indianapolis Highway; thence Southwest along said
highway to the south line of said Section; thence East to the place
of beginning; also The North Half o'f the Northwest Quarter of
Section 27, Township 18
beginning; North, Range 4 East, except 3 113 acres
off the south side thereof; also
part of the Southwest Quarter of Section 22, Township 18 North,
Range 4 East; commencing at the Southwest Comer of said quarter
section; thence North 53 rods; thence. East 151 rods; thence
Southeast to a point on the South line of said Quarter Section 156
rods East of the place of beginning, thence West to the place of
beginning, containing fifty-one acre s; also
Part of the Northeast Quarter of the Northeast Quarter of Section
29, Township 18 North, Rance 4 Fast, Commencing at the
Northeast Comer of said Section, thence West 26.20 rods, thence
South 46 112 degrees West, 13.93 rods; thence South 97 rods;
thence Southeasterly to a point which is 17.42 rods West of and
110.67 rods South of the Northeast comer of said section, thence
North 34 rods, thence East 17.42 rods, thence North 76.67 rods to
the place of beginning; also a tract described as follows:
Four acres off the North end of
Commencing 35.12 rods West of the Southeast Corner of the
Northeast Quarter of Section 28, Township 18 North, Range 4
East, thence West 125.8 rods, thence North 17.11 rods, thence
North 43 1/2 degrees Fast, 192.52 rods, thence South 150 rods to
the place of beginning.
Containing in all 153.8 acres more or less, all subject to survey.