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HomeMy WebLinkAboutCovenants and Restrictions, Draft_02-11-2016PAGE 1 OF 21 DECLARATION OF COVENANTS AND RESTRICTIONS OF KENSINGTON GREEN THIS DECLARATION OF COVENANTS AND RESTRICTIONS is made as of the ___ day of February, 2016 by TURTLE POND PARTNERS, LLC. (“Declarant”). Recitals A. Declarant is the legal or equitable owner of the real estate located in Hamilton County, Indiana, described in Exhibit A, upon which Declarant intends, but is not obligated, to develop a residential subdivision to be known as Kensington Green ("Kensington Green"). B. Declarant intends, but is not obligated, to construct certain improvements and amenities which shall constitute Community Area. C. Declarant desires to provide for the preservation and enhancement of the property values and amenities in Kensington Green and for the maintenance of the Tract and the improvements thereon, and to this end desires to subject the Tract to the covenants, restrictions, easements, charges and liens hereinafter set forth, each of which is for the benefit of the Lots and lands in the Tract and the future owner thereof. D. Declarant deems it desirable, for the efficient preservation of the values and amenities in Kensington Green, to create an agency to which may be delegated and assigned the powers of owning, maintaining and administering the Community Area, administering and enforcing the Restrictions, collecting and disbursing the Assessments and charges hereinafter created, promoting the recreation, health, safety and welfare of the Owners of Lots in Kensington Green and performing the duties and obligations required under this Declaration. E. Declarant shall incorporate under the laws of the State of Indiana a non-profit corporation known as The Kensington Green Homeowners Association, Inc., for the purpose of exercising such functions. Declarant hereby declares that all of the Lots and lands in the Tract as they are held and shall be held, conveyed, hypothecated or encumbered, leased, rented, used, occupied and improved, are subject to the following Restrictions, all of which are declared to be in furtherance of a plan for the improvement and sale of Lots and Residences in the Tract, and are established and agreed upon for the purpose of enhancing and protecting the value, desirability and attractiveness of the Tract as a whole and of each of the Residences, Lots and lands situated therein. The Restrictions shall run with the land and shall be binding upon Declarant, its successors and assigns, and upon the parties having or acquiring any interest in the Tract or any part or parts thereof subject to such Restrictions, and shall inure to the benefit of Declarant and its successors in title to the Tract or parts thereof. Article 1. DEFINITIONS The following terms, as used in this Declaration, unless the context clearly requires otherwise, shall have the following meanings: "Architectural Review Board" or "Review Board" means that entity established pursuant to this Declaration for the purposes therein stated consisting of a representative of the Declarant, and an architect registered in the State of Indiana, chosen by Declarant. This body will have the responsibility for reviewing all new construction and other improvements to the Tract according to the Building Guidelines, as well reviewing conduct during the development and building process and enforcing the Building PAGE 2 OF 21 Guidelines. "Articles" means the Articles of Incorporation of the Corporation, as amended from time to time. "Assessments" means all sums lawfully assessed against the Members of the Corporation or as declared by this Declaration, any Supplemental Declaration, the Articles or the By-Laws. "Board of Directors" means the governing body of the Corporation elected by the Members in accordance with the By-Laws. "Builder" means a person or entity engaged in the organized construction of a Residence on a Lot. "Building Guidelines" means the document created and maintained by the Architectural Review Board, as amended from time to time, that governs the design, landscaping, materials, site conduct, rules, regulations, policies, procedures and other related aspects of the building process, the cottages, yards and gardens in Kensington Green. "Building Setback Lines or B.S.L." are established on the Plat between which lines and the nearest Lot line, no structure shall be erected. "By-Laws" means the Code of By-Laws of the Corporation, as amended from time to time. "Common Area" means (i) those portions of the Property, including the entry ways and other improvements thereto, facilities and personal property owned, to-be-owned, leased or to-be-leased by the Corporation from time to time for the common use, benefit and enjoyment of the Owners (as hereinafter denied), and (ii) items (if any) deemed Common Area for maintenance purposes only. Unless expressly stated to the contrary, the term Common Area as used herein (whether or not so expressed) shall include all portions of the Property designated on the Plat (as hereafter defined) as a Common Area. The Common Area is to be conveyed to the Corporation at the time of the conveyance of the first Lot to an Owner and shall be held by the Corporation for the use and benefit of the Owners subject to such rules and regulations established from time to time by the Corporation. "Community Area" means (i) the Drainage System, (ii) the area designated on the Plat as Common Area, (iii) the entry ways, (iv) any utility service lines or facilities not maintained by a public utility company or governmental agency that are located on, over or below or through the Tract, (v) any areas of land (1) shown on any Plat, (2) described in any recorded instrument prepared by Declarant or its agents, or (3) conveyed to or acquired by the Corporation, together with all improvements thereto, that are intended to be devoted to the use or enjoyment of some, but not necessarily all, of the Owners of Lots; and (vi) the private drives. "Corporation" means Kensington Green Homeowners Association, Inc., an Indiana nonprofit corporation, its successors and assigns, (sometimes "Association"). "Declarant" means Turtle Pond Partners, LLC, its successors and assigns to its interest in the Tract other than Owners purchasing Lots or Residences by deed from Declarant (unless the conveyance indicated intent that the grantee assume the rights and obligations of Declarant). "Development Area" means the land described in Exhibit A (sometimes referred to herein as "Tract"). PAGE 3 OF 21 "Drainage Board" means the Hamilton County Drainage Board, its successors or assigns. "Drainage System" means the open drainage ditches and swales, the subsurface drainage tiles, pipes and structures, the dry and wet retention and/or detention ponds, the infiltration trenches, the rain gardens, the rain barrels and the other structures, fixtures, properties, equipment and Facilities located within the Tract and designed for the purpose of controlling, retaining or expediting the drainage of surface and subsurface waters from, over and across the Tract including but not limited to those shown or referred to on a Plat, all or part of which may be established as legal drains subject to the jurisdiction of the Drainage Board. "Facilities" means the Common Areas, Community Areas and all improvements thereto (including landscaping and components of the Drainage System where applicable) and all property owned by the Corporation. "General Plan of Development" means that plan prepared by Declarant and approved, if necessary, by appropriate public agencies that outlines the total scheme of development and general uses of land in the Development Area, as may be amended from time to time. "Kensington Green" means the name by which the Tract shall be known. "Lot" means a platted lot as shown on a Plat. "Lot Development Plan" means the submittal as defined in the Building Guidelines that outlines the plan for the improvements on a Lot by a Builder. "Maintenance Costs" means all of the costs necessary to keep the Facilities to which the term applies operational and in good condition, including but not limited to the cost of all upkeep, management, maintenance, repair, replacement of all or any part of any such facility, payment of all insurance with respect thereto, all taxes imposed on the facility and on the underlying land, leasehold, easement or right-of-way, and any other expense related to the continuous maintenance, operation or improvement of the facility, and all expenses related to the performance of the duties of the Association under this Declaration. "Member" means a Class A or Class B member of the Corporation and "Members" means Class A and Class B members of the Corporation. "Owner" means a Person, including Declarant, who at the time has or is acquiring any interest in a Lot except a Person who has or is acquiring such an interest merely as security for the performance of an obligation. "Person" means an individual, firm, corporation, partnership, association, trust or other legal entity, or any combination thereof. "Plat" means a final secondary plat of a portion of the Development Area recorded in the Office of the Recorder of Hamilton County, Indiana. "Rain Barrel" means any device, either above ground or below, that is put in place for the purpose of capturing and storing rain water. PAGE 4 OF 21 "Reserve for Replacements" means a fund established and maintained by the Corporation to meet the cost of periodic maintenance, repairs, renewal and replacement of the Community Area. "Residence" means any structure, attached or detached, intended exclusively for occupancy by a single family together with all appurtenances thereto, including porches, decks, patios, private garages and outbuildings, and recreational facilities usual and incidental to the use of a residential lot. "Restrictions" means the covenants, conditions, easements, charges, liens, restrictions, rules and regulations and all other provisions set forth in this Declaration, as the same may from time to time be amended. "Tract" means the real estate described in Exhibit A (sometimes referred to herein as the "Development Area"). "Zoning Authority" with respect to any action means the Director of the Department Of Community Services of the City of Carmel or, where he lacks the capacity to take action, or fails to take such action, the governmental body or bodies, administrative or judicial, in which authority is vested under applicable law to hear appeals from, or review the action, or the failure to act of the Director. "Zoning Ordinance" means Kensington Green PUD Ordinance or The Zoning Ordinance of the City of Carmel/Clay Township, Indiana, as amended when the issue refers to items not included in the Kensington Green PUD Ordinance. Article 2. DECLARATION Declarant hereby expressly declares that the Tract shall be subject to these Restrictions. The Owner of any Lot subject to these Restrictions, by (i) acceptance of a deed conveying title thereto, or the execution of a contract for the purchase thereof whether from Declarant or a subsequent Owner of such Lot, or (ii) by the act of occupancy of any Lot shall accept such deed and execute such contract subject to each Restriction and agreement herein contained. By acceptance of such deed or execution of such contract, each Owner acknowledges the rights and powers of Declarant and of the Corporation with respect to these Restrictions to keep, observe, comply with and perform such Restrictions and agreements. Article 3. DRAINAGE SYSTEM A. The Drainage System. The Drainage System has or will be constructed for the purpose of controlling drainage within and adjacent to the Development Area. Declarant shall maintain the Drainage System in good condition satisfactory for the purpose for which it was constructed until that portion of the Drainage System that will be public is accepted as a legal drain by the Drainage Board. After such date, the Corporation shall maintain both the public and private portions of the Drainage System and the Maintenance Costs thereof shall be assessed against all Lots subject to assessment serviced by that part of the Drainage System with respect to which Maintenance Costs are incurred. Each Owner shall be individually liable for the cost of maintenance of any portion of the Drainage System located entirely upon their Lot which is devoted exclusively to drainage of their Lot and is not maintained by the Drainage Board. B. Rain Barrels. In the event that a Rain Barrel is provided for a Residence it should be maintained and allowed to drain within 48 hours of a significant rain event depending on the rain barrel system used. The Rain Barrel can be an integral part of the overall Drainage System and cannot be removed, disconnected, plugged, or taken out of service for any reason. In the event that a temporary PAGE 5 OF 21 disconnection is necessary for the maintenance of the structure the Review Board shall be notified in writing of the date that this disconnection will occur and the date that the barrel will be reconnected. Article 4. MAINTENANCE OF ENTRY WAYS AND COMMUNITY AREA The Corporation shall maintain the entry ways and the Community Area, and all improvements and plantings thereon, and the Maintenance Costs thereof shall be assessed as a General Assessment against all Lots subject to assessment. Grass, trees, shrubs and other plantings located on an entry way or within the Community Area shall be kept neatly cut, cultivated or trimmed as reasonably required to maintain an attractive entrance to Kensington Green or a part thereof or a planting area within Kensington Green. All entrance signs located on an entry way shall be maintained at all times in good and sightly condition appropriate to a first-class residential subdivision. Article 5. CONSTRUCTION OF RESIDENCES A. Land Use. Lots may be used only for residential purposes and only one Residence may be constructed thereon. No portion of any Lot may be sold or subdivided. Notwithstanding any provision in the applicable Zoning Ordinance to the contrary, no Lot may be used for any "Special Use" that is not clearly incidental and necessary to residential dwellings. Accessory uses are permitted per the Zoning Ordinance and may include accessory dwellings located above a garage of a Residence. B. Kensington Green Building Guidelines. The ownership, use, and enjoyment of each Lot is subject to the Kensington Green Building Guidelines, which shall be provided to Owners upon the sale of a Residence. C. Building Location. No building may be erected between the Building Setback Line ("B.S.L.") shown on the Plat and the front, side or rear Lot line. D. Storage Tanks. No gas or oil storage tanks shall be located on the Tract. E. Construction and Landscaping. All construction upon, landscaping of, and other improvements to a Lot shall be completed strictly in accordance with the Lot Development Plan approved by the Architectural Review Board. All landscaping specified on the landscaping plan approved by the Architectural Review Board shall be installed on the Lot strictly in accordance with such approved plan within thirty (30) days following substantial completion of the Residence unless the Board agrees to a later landscaping completion date. F. Sanitary Sewer Systems. The sole sanitary sewerage collection system for each Lot shall be operated by the Clay Township Regional Waste District or a successor public agency or public utility. G. Water Systems. Domestic water service will be available to each Lot from a Carmel Utilities water line located within the right-of-way of an adjacent street or Community Area and each Owner shall connect to such water line to provide water for domestic use on the Lot and shall pay all connection, availability or other charges lawfully established with respect to connections thereto. H. Drainage. In the event 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, the "Drainage Easements" 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 PAGE 6 OF 21 drainage along such swale and such Owner shall maintain such facilities upon their respective Lots as necessary to permit proper drainage. Lots within Kensington Green may be included in a legal drain established by the Drainage Board. In such event, each Lot in Kensington Green will be subject to assessment by the Drainage Board for the cost of maintenance of the portion of the Drainage System and/or the facilities included in such legal drain, that assessment will be a lien against the Lot. 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 downspouts shall not be outletted 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 their Lot and shall be liable for the cost of all repairs thereto or replacements thereof. I. Diligence in Construction. Every building whose construction on any Lot is begun shall be completed within twelve (12) months after the beginning of such construction. If an improvement has been partially or totally destroyed by fire or otherwise, such structure shall be razed or restored within three (3) months from the time of such destruction or damage, provided, if the Owner is restoring the Residence and has commenced such restoration and is diligently prosecuting the completion thereof, such Person shall have a total of twelve (12) months to complete such restoration. J. Restrictions on Use. The following Restrictions on the use and enjoyment of the Lots, Residences and Common Areas shall be in addition to any other covenants or restrictions contained herein and in any subdivision plat of any part of the Tract heretofore or hereafter recorded, and all such Restrictions are for the mutual benefit of and be enforceable by any Owner, or by Declarant or the Corporation. Present or future Owners or the Declarant or Corporation shall be entitled to injunctive relief against any violation or attempted violation of any such Restrictions, and shall, in addition, be entitled to damages for any injuries or losses resulting from any violations thereof, but there shall be no right of reversion or forfeiture resulting from such violation. These Restrictions are as follows: (i) Nothing shall be done or kept in any Residence, or on any Lot, which will cause an increase in the rate of insurance on any Common Areas. No Owner shall permit anything to be done or kept in his Residence or on his Lot which will result in a cancellation of insurance on any part of the Common Areas, or which would be in violation of any law or ordinance or the requirements of any insurance underwriting or rating bureau. (ii) No nuisance shall be permitted and no waste shall be committed in Common Area, Residence or on any Lot. (iii) No Owner shall cause or permit anything to be hung or displayed on the outside of the windows of their Residence or placed on the outside walls of any building, and no sign, awning, canopy, shutter or radio or television antenna or other attachment or thing shall be affixed to or placed upon the exterior walls or roofs or any other parts of any building without the prior consent of the Architectural Review Board unless otherwise expressly authorized herein, or in any recorded subdivision plat, or by the rules, regulations and Building Guidelines of the Architectural Review Board. (iv) No Residence or Lot shall be used in any unlawful manner or in any manner which might cause injury to the reputation of the subdivision developed or to be developed on the Tract, or which might be a nuisance, annoyance, inconvenience or damage to other Owners and occupants of Residence or neighboring property, including without limiting the generality of the foregoing, noise by the use of any musical instruments, radio, television, loud speakers, electrical equipment, amplifiers or other equipment or machines or loud persons. PAGE 7 OF 21 (v) No clothes, sheets, blankets, rugs, laundry or other things shall be hung out or exposed on, or so as to be visible from, any part of the Common Areas. The Common Areas shall be kept free and clear of rubbish, debris and other unsightly materials. (vi) No industry, trade, or other commercial or religious activity, educational or otherwise, designed for profit, altruism or otherwise, shall be conducted, practiced or permitted on the Tract with the exception of in home offices that are incidental to the primary residence. (vii) All Owners and members of their families, their guests, or invitees, and all occupants of any Residence or other persons entitled to use the same and to use and enjoy the Common Areas or any part thereof, shall observe and be governed by such rules and regulations as may from time to time be promulgated and issued by the Architectural Review Board or Corporation governing the operation, maintenance, use and enjoyment of the Common Areas. (viii) No Owner shall be allowed to plant trees, landscape or do any gardening in any of the Common Areas, except with express permission from the Architectural Review Board. (ix) Common Areas shall be used and enjoyed only for the purposes for which they are designed and intended, and shall be used subject to the rules and regulations from time to time adopted by the Architectural Review Board or Corporation. Article 6. MAINTENANCE OF LOTS A. Vehicle Parking. No camper, motor home, truck, trailer, boat, bus, commercial vehicle of any kind, or disabled vehicle may be parked or stored overnight or longer on any Lot. With regard to regular passenger vehicles including cars, SUVs, light trucks and motorcycles, when an opportunity exists to park a passenger vehicle within the garage, through the mere existence of a garage, said vehicle will be parked within the garage at all times. Temporary outdoor parking of a passenger vehicle on a Lot for more than 72 hours shall be prohibited with the exception of instances in which a garage parking space does not exist and a concrete parking pad is provided per an approved Lot Development Plan. No passenger vehicle shall be parked on grass or gravel at any time. B. Signs. Except for such signs as Declarant may in its absolute discretion display in connection with the development of Kensington Green and the sale of Lots therein, no sign of any kind shall be displayed to the public view on any Lot except that one (1) sign of not more than four (4) square feet may be displayed at any time for the purpose of advertising the property for sale or may be displayed by a Builder to advertise the property during construction and one (1) sign of not more than two (2) square feet may be displayed at any time for the sole purpose of displaying the name and/or address of the Residence. C. Nuisances/Animals. No noxious or offensive activity shall be carried on upon any Lot nor shall anything be done thereon which may be, or may become, an annoyance or nuisance to the neighborhood. No animals shall be kept or maintained on any Lot except the usual household pets, and, in such cases, such household pets shall be kept reasonably confined so as not to become a nuisance. Barking dogs shall constitute a nuisance. D. Garbage and Refuse Disposal. No Lot shall be used or maintained as a dumping ground for trash. Rubbish, garbage, materials intended for recycling or other waste shall be kept in sanitary containers approved by the Architectural Review Board and out of public sight, except for the evening prior to and the day of garbage pickup. All equipment for storage or disposal of such materials shall be PAGE 8 OF 21 kept clean and sanitary. No Owner shall burn or permit the burning outdoors of garbage, refuse, leaves, branches or other debris. Composting is permitted so long as the Architectural Review Board approves the equipment and location. E. Livestock and Poultry. No animal, livestock or poultry of any kind shall be raised, bred or kept on any Lot except that dogs, cats or other household pets may be kept provided that they are not kept, bred or maintained for commercial purpose. The owners of such permitted pets shall confine them to their respective Lots such that they will not be a nuisance. Owners of dogs shall so control or confine them so as to avoid barking which will annoy or disturb adjoining Owners. No outdoor kennels will be permitted. F. Outside Burning. No trash, leaves, or other materials shall be burned upon a Lot. Outdoor fireplaces may be permitted subject to the approval of the Architectural Review Board of the equipment and location so long as the use of such fireplaces does not create a nuisance to adjoining Owners through the wafting of smoke or odors. G. 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 a nuisance or annoyance to other Owners and shall only be operated when outside activities require the use thereof and not continuously. H. Garage Doors. All garage doors shall remain fully lowered and closed except when in use for ingress and egress to the garage. I. Watering of Lawns. Each Owner shall water the lawn area of the Lot at a sufficient interval during dry periods to maintain a green yard. If an Owner fails to comply with this restriction, the Architectural Review Board shall have the right to water the lawn at the expense of the Owner thereof and the Architectural Review Board shall have a lien against the Lot for the expense thereof. The minimization of lawn area is permitted and encouraged through the incorporation of native flower and landscaping areas, vegetable gardens or xeriscaping as approved by the Architectural Review Board. J. Maintenance of Lots. Declarant shall have the responsibility to maintain all lots owned by Declarant. Once a Lot(s) has been purchased by the Owner, the Owner of said Lot(s) shall at all times maintain the Lot(s) and any improvements situated thereon in such a manner as to prevent the Lot(s) or improvements from becoming unsightly and, specifically, such Owner shall: (i) Mow the Lot(s) at such times as may be reasonably required in order to prevent the unsightly growth of vegetation and noxious weeds as defined in the Cannel City Code; (ii) Remove all debris or rubbish; (iii) Prevent the existence of any other condition that reasonably tends to detract from or diminish the aesthetic appearance of the Tract; (iv) Cut down, remove and replace dead trees; (v) Where applicable, prevent debris and foreign material from entering drainage areas; and (vi) Keep the exterior of all improvements in such a state of repair or maintenance as to avoid their becoming unsightly. PAGE 9 OF 21 K. Declarant's and the Corporation's Right to Perform Certain Maintenance. In the event that any Owner of a Lot shall fail to maintain his Lot and any improvements situated thereon in accordance with the provisions of these Restrictions or the Building Guidelines, the Declarant, until the Applicable Date (as hereinafter defined), and, thereafter, the Corporation, shall have the right, but not the obligation, by and through its agents and employees or contractors, to enter upon said Lot and repair, mow, clean or perform such other acts as may be reasonably necessary to make such Lot and improvements situated thereon, if any, conform to the requirements of these Restrictions. The cost thereof to the Declarant or the Corporation shall be collected as a special assessment against such Owner and their Lot in the manner provided for herein for the collection of Maintenance Costs. Neither the Declarant nor the Corporation, nor any of its agents, employees, or contractors, shall be liable for any damage which may result from any maintenance work performed hereunder. L. Model Homes. No Owner of any Lot shall build or permit the building upon their Lot of any dwelling house that is to be used as a model home, without permission to do so from the Declarant. M. Temporary Structures. No temporary house, trailer, tent, garage or other outbuilding shall be placed or erected on any Lot. Article 7. ADDITIONS TO AND WITHDRAWALS FROM THE TRACT. A. Additions. As of the date of the execution of this Declaration the Development Area consists solely of the real estate described in Exhibit A. Declarant shall have the right, and hereby reserves on to itself the unilateral right, at any time, and from time to time, prior to the Applicable Date, to add to the Development Area and subject to this Declaration all or any part of the adjacent real estate. Any portion of the adjacent real estate may be added to the Development Area, and therefore and thereby becomes a part of the Development Area and subject in all respects to this Declaration and all rights, obligations, and privileges herein, when Declarant places of record in Hamilton County, Indiana an instrument so declaring the same to be part of the Development Area, which instrument may be a Supplemental Declaration, a declaration of annexation contained in a Plat, or an amendment or supplement to this Declaration. Any such Supplemental Declaration may contain modifications hereto and additional terms, conditions, restrictions, maintenance obligations, and assessments as may be necessary to reflect the different character, if any, of the additional real estate. Upon recording of any such instrument on or before the Applicable Date, the real estate described therein shall, for all purposes, thereafter be deemed a part of the Development Area and the Owners of any Lots within such real estate shall be deemed for all purposes, to have and be subject to all of the right, duties, privileges, and obligations of Owners and Lots within the Development Area. No single exercise of Declarant right and option to add and expand the Development Area, shall preclude Declarant or from thereafter from time to time further expanding and adding to the Development Area to include other portions of real estate, and such right and option of expansion may be exercised by Declarant from time to time as to all or any portions of real estate so long as such expansion is accomplished with the approval of the owner of that portion of the real estate that Declarant intends to include. Such expansion of the Development Area is entirely at the sole discretion of the Declarant and nothing contained in this Declaration or otherwise shall require Declarant to expand the Development Area beyond the real estate described in Exhibit A, or to any portions of real estate which Declarant may voluntarily and in its sole discretion from time to time subject to this Declaration. B. Withdrawals. So long as it has a right to annex additional real estate pursuant to Article 7(A), Declarant reserves the right to amend this Declaration (and the Preliminary Plan of Development) for the purpose of removing any portion of the Development Area, which has not yet been improved PAGE 10 OF 21 with Structures, from the coverage of this Declaration. Such amendment shall not require the consent of any Person or Owner(s) other than the Owner(s) of the property to be withdrawn, if not the Declarant. If the property is general Common Area, the Corporation shall consent to such withdrawal. Article 8. KENSINGTON GREEN HOMEOWNERS ASSOCIATION, INC. A. Membership. Each Owner shall automatically be a Member and shall enjoy the privileges and be bound by the obligations contained in the Articles and By-Laws. If a Person would realize upon his security and become an Owner, he shall then be subject to all the requirements and limitations imposed by this Declaration on other Owners, including those provisions with respect to the payment of Assessments. B. Powers. The Corporation shall have such powers as are set forth in this Declaration and in the Articles, together with all other powers that belong to it by law, C. Classes of Members. The Corporation shall have two (2) classes of members as follows: Class A. Every Person who is an Owner shall be a Class A Member. Class B. Declarant shall be a Class B Member. No other person, except a successor or assignee to substantially all of the interest of Declarant in the Development Area, shall hold a Class B membership in the Corporation. The Class B membership shall terminate upon the written resignation of the Class B Member and when the Declarant no longer owns any of the Lots in the Development Area (as depicted on the General Plan of Development) as shown on the Plat, or on December 31, 2026, whichever first occurs (the "Applicable Date"). D. Voting and Other Rights of Members. The voting and other rights of members shall be as specified in the Articles and By-Laws, except that a Class B Member shall have ten (10) votes for each Lot owned by the Class B Member. E. Reserve for Replacements. Declarant, or the Board of Directors (once the Declarant relinquishes responsibility for operating and maintaining the Community Areas), may establish and maintain the Reserve for Replacements by the allocation and payment to such reserve fund of an amount determined annually by the Declarant or the Board, as the case may be, to be sufficient to meet the cost of periodic maintenance, repairs, renewal and replacement of the Community Area. In determining the amount the Declarant or the Board, as the case may be, shall take into consideration the expected useful life of the Community Area, projected increases in the cost of materials and labor, interest to be earned by such fund and the advice of Declarant or such consultants as the Board may employ. The Reserve for Replacements shall be deposited in a special account with a lending institution the accounts of which are insured by an agency of the United States of America or may, in the discretion of the Declarant or the Board, as the case may be, be invested in obligations of, or fully guaranteed as to principal by, the United States of America. F. Limitations on Action by the Corporation. Unless the Class B Member and two-thirds (⅔) of the Class A members (other than Declarant) have given their prior written approval, the Corporation, the Board of Directors and the Owners may not (i) except as authorized by Article 9(A), by act or omission seek to abandon, partition, subdivide, encumber, sell or transfer the Community Area (but the granting of easements for public utilities or other public purposes consistent with the intended use of the Community Area shall not be deemed a transfer for the purposes of this clause), (ii) fail to maintain fire and extended coverage on insurable Community Area on a current replacement PAGE 11 OF 21 cost basis in an amount at least one hundred percent (100%) of the insurable value (based on current replacement cost), (iii) use hazard insurance proceeds for losses to any Community Area for other than the repair, replacement or reconstruction of the Community Area, (iv) change the method of determining the obligations, Assessments, dues or other charges that may be levied against the Owner of a Residence, (v) by act or omission change, waive or abandon any scheme of regulations or their enforcement pertaining to the architectural design or the exterior appearance of Residences, or the maintenance and upkeep of the Community Area, or (vi) fail to maintain the Reserve or Replacements in the amount required by this Declaration. G. Mergers. Upon a merger or consolidation of another corporation with the Corporation as contemplated in Section 7(A), its properties, rights and obligations may, as provided in its Articles of Incorporation or, alternately, the properties, rights and obligations of another corporation may by operation of law be added to the properties, rights and obligations of the Corporation as a surviving corporation pursuant to a merger. The surviving or consolidated corporation may administer the Restrictions established by this Declaration within the Tract together with the Restrictions established upon any other properties as one scheme. No other merger or consolidation, however, shall affect any revocation, change or addition to the covenants established by this Declaration within the Tract except as hereinafter provided. H. Termination of Class B Membership. Wherever in this Declaration the consent, approval or vote of the Class B Member is required, such requirement shall cease at such time as the Class B membership terminates, but no such termination shall affect the rights and powers of Declarant set forth in this Declaration. Article 9. ASSESSMENTS A. Creation of the Lien and Personal Obligation of Assessments. Declarant hereby covenants, and each Owner of any Lot by acceptance of a deed thereto, whether or not it shall be so expressed in such deed, is deemed to covenant and agree to pay to the Corporation the following: (1) General Assessments; and (2) Special Assessments, such Assessments to be established and collected as hereinafter provided. All Assessments, together with interest thereon and costs of collection thereof, shall be a charge on the land and shall be a continuing lien upon the Lot against which each Assessment together with interest thereon and costs of collection thereof, shall also be the personal obligation of the Person who was the Owner of the Lot at the time when the Assessment became due. B. General Assessment. (i) Purpose of Assessment. The General Assessment levied by the Corporation shall be used exclusively to promote the recreation, health, safety and welfare of the Owners of Lots, for the improvement, maintenance and operation of the Community Area, Facilities and Lots, and for the performance of the duties and responsibilities of the Corporation established by this Declaration. (ii) Basis for Assessment: (a) Lots Generally: Each Lot owned by a Person other than the Declarant shall be assessed at a uniform rate without regard to whether a Residence has been constructed upon the Lot. PAGE 12 OF 21 (b) Lots Owned by Declarant. No Lot owned by Declarant shall be assessed by the Corporation. (c) Change in Basis. The basis of assessment may be changed with the assent of the Class B Member and two-thirds (2/3) of the Class A members (excluding Declarant) who are voting in person or by proxy at a meeting of such members duly called for this purpose. (iii) Method of Assessment. The Declarant shall (until Declarant relinquishes such responsibility to the Corporation) or, after such time, the Board of Directors shall, on the basis specified in subparagraph (ii), fix the General Assessment for each assessment year of the Corporation at an amount sufficient to meet the obligations imposed by this Declaration upon the Corporation. The Declarant shall (until Declarant relinquishes such responsibility to the Corporation) or, after such time, the Board of Directors shall establish the date(s) the General Assessment shall become due, and the manner in which it shall be paid. Until changed by the Board of Directors of Corporation, the General Assessment shall be paid in two (2) installments with the installments being due on or about June 1 of each year and December 1 of each year. Upon closing on a Lot or Lots, the Owner shall pay to Declarant (i) the pro-rated portion of the next installment of the assessment due for the current year, (ii) the next installment of the assessment which will be due, and (iii) a Five Hundred Dollar ($500.00) onetime reserve assessment. C. Special Assessment. In addition to such other Special Assessments as may be authorized herein, the Corporation may levy in any fiscal year a Special Assessment applicable to that year and not more than the next four (4) succeeding fiscal years for the purpose of defraying, in whole or in part, the cost of any construction, repair, or replacement of a capital improvement upon the Community Area, including fixtures and personal property relating thereto, provided that any such Assessment shall require only the approval of the Class B Member through and including the Applicable Date, and after the Applicable Date such Assessment shall require the vote of the Class B Member (if any) and a majority of the votes of the Class A members whose Lots are subject to assessment with respect to the capital improvement who are voting in person or by proxy at a meeting of such members duly called for this purpose. D. Architectural Control Assessment. If any Owner or Person acting on behalf of, or pursuant to the authorization of an Owner fails to comply with the Building Guidelines or other requirements for construction of the improvements, landscaping and other building activities or maintenance of a Lot or any restrictive covenant or condition specified in this Declaration or any Supplemental Declaration for the Development Area in which such Owner's Lot is located, then the Declarant shall (until Declarant relinquishes such responsibility to the Corporation) or, after such time, the Board of Directors may levy against the Lot owned by such Owner an Assessment in an amount determined by the Board of Directors which does not exceed the greater of (i) Five Hundred Dollars ($500.00) for each day that such failure continues after written notice thereof is given by Declarant or the Corporation to such Owner, or (ii) Fifty Thousand Dollars ($50,000.00) (the "Architectural Control Assessment"). Such Assessment shall constitute a lien upon the Lot of such Owner and may be enforced in the manner provided in subparagraph (E) below. The levy of an Architectural Control Assessment shall be in addition to, and not in lieu of, any other remedies available to Declarant and/or the Corporation provided for in this Declaration, at law or in equity in the case of failure of an Owner to comply with the provisions of this Declaration and all applicable Supplemental Declarations and the Building Guidelines as amended from time to time. E. Effect of Nonpayment of Assessments: Remedies of the Corporation. Assessments not paid within thirty (30) days after the due date may upon resolution of the Board of Directors bear interest PAGE 13 OF 21 from the due date at a percentage rate no greater than the current statutory maximum annual interest rate, to be set by the Board of Directors for each assessment year. The Corporation shall be entitled to institute in any court of competent jurisdiction any lawful action to collect a delinquent Assessment plus any expenses or costs, including attorneys’ fees, incurred by the Corporation in collecting such Assessment. If the Corporation has provided for collection of any Assessment or installments, upon default in the payment of any one or more installments, the Corporation may accelerate payment and declare the entire balance of said Assessment due and payable in full. No Owner may waive or otherwise escape liability for the Assessments provided for herein by non-use of the Community Area or abandonment of his Lot. F. Subordination of the Lien to Mortgages. The lien of the Assessments provided for herein against a Lot shall be subordinate to the lien of any recorded first mortgage covering such Lot and to any valid tax or special assessment lien on such Lot in favor of any governmental taxing or assessing authority. Sale or transfer of any Lot shall not affect the assessment lien. The sale or transfer of any Lot pursuant to mortgage foreclosure or any proceeding in lieu thereof shall, however, extinguish the lien of such Assessments as to payments which became due more than six (6) months prior to such sale or transfer unless as otherwise provided under Indiana law. No sale or transfer shall relieve such Lot from liability for any Assessments thereafter becoming due or from the lien thereof. G. Certificates. The Corporation shall, upon demand by an Owner, at any time, furnish a certificate in writing signed by an officer of the Corporation that the Assessments on a Lot have been paid or that certain Assessments remain unpaid, as the case may be. H. Annual Budget. By a majority vote of the Directors, the Board of Directors shall adopt an annual budget for the subsequent fiscal year, which shall provide for allocation of expenses in such a manner that the obligations imposed by the Declaration and all Supplemental Declarations will be met. I. Declarant Loan. All monies spent by and/or advanced by Declarant through the Applicable Date for the benefit of Kensington Green and the Owners (as determined in Declarant's sole discretion) shall constitute a loan to the Owners which shall be repaid by the Association over three (3) years commencing on the Applicable Date, with interest accruing at a rate of ten percent (10%) per annum, repayable in equal monthly payments beginning on the first day of the first month after the Applicable Date. The Association shall, on the Applicable Date, be required to sign a Promissory Note in favor of Declarant evidencing such loan. Article 10. COMMUNITY AREA A. Ownership. The Community Area shall remain private, and neither Declarant's execution or recording of an instrument portraying the Community Area, nor the doing of any other act by Declarant is, or is intended to be, or shall be construed as, a dedication to the public of such Community Area. Declarant or the Corporation may, however, dedicate or transfer all or any part of the Community Area to any public utility. B. Obligations of the Corporation. The Corporation, subject to the rightsof Declarant and the Owners set forth in this Declaration, shall be responsible for the exclusive management and control of the Community Area and all improvements thereon (including furnishings and equipment related thereto), and shall keep the Community Area in good, clean, attractive and sanitary condition, order and repair. C. Easements of Enjoyment. No Person shall have any right or easement of enjoyment in or to the Community Area except to the extent granted by, and subject to the terms and provisions of, this PAGE 14 OF 21 Declaration or any Supplemental Declaration executed by Declarant. Such rights and easements as are thus granted shall be appurtenant to and shall pass with the title to every Lot for whose benefit they are granted. D. Extent of Easements. The easements of enjoyment created hereby shall be subject to the following: (i) the right of the Corporation to establish reasonable rules for the use of the Community Area; (ii) the right of the Corporation to suspend the right of an Owner, and all Persons whose rights to use the Community Area derives from such Owner's ownership of a Lot, to use such portions of the Community Area for any period during which any Assessment against his Lot remains unpaid for more than thirty (30) days after notice; (iii) the right of the Corporation to suspend the right of an Owner, or any Person claiming through the Owner, to use the Community Area for a period not to exceed sixty (60) days for any other infraction of this Declaration, any Supplemental Declaration or the Building Guidelines; (iv) the right of the Corporation to mortgage any or all of the Community Area and the Facilities constructed therein for the purposes of improvements to, or repair of, the Community Area or Facilities constructed thereon, pursuant to approval of the Class B Member and two- thirds (2/3) of the votes of the Class A members (excluding Declarant) voting in person or by proxy at a regular meeting of the Corporation or a meeting duly called for this purpose; and (v) the right of the Corporation to dedicate or transfer all or any part of the Community Area to any public agency, authority or utility, but no such dedication or transfer shall be effective unless an instrument signed by the Class B Member, if any, and the appropriate officers of the Corporation acting pursuant to authority granted by two-thirds (2/3) of the votes of the Class A members (excluding Declarant), agreeing to such dedication or transfer, has been recorded. E. Additional Rights of Use. The members of the family and the guests of every Person who has a right of enjoyment to the Community Area and Facilities shall be subject to such general regulations consistent with the provisions of this Declaration and all Supplemental Declarations and the Building Guidelines as may be established from time to time by the Corporation. F. Damage or Destruction by Owner. In the event the Community Area or any Residence or Lot is damaged or destroyed by an Owner or any of his guests, tenants, licensees, agents, or members of his family, such Owner authorizes the Corporation to repair said damaged area, provided neither Declarant nor Corporation shall ever be required to repair any damage to a Residence or Lot, unless caused by Declarant or Corporation, as the case may be. If the Corporation shall undertake the repair of the damaged area, the repair shall be in a good and workmanlike manner, in conformance with the original plans and specifications of the area involved or as the area may have been modified or altered subsequently by the Corporation, in the discretion of the Corporation. An amount equal to the costs incurred to affect such repairs shall be assessed against such Owner as a Special Assessment and shall constitute a lien upon the Lot of said Owner. G. Conveyance of Title. Declarant may retain the legal title to the Community Area or any portion thereof until such time as it has completed improvements thereon but notwithstanding any PAGE 15 OF 21 provision herein, the Community Area shall be conveyed to the Association not later than four (4) years from the date the Community Area or part thereof is subjected to this Declaration. Owners shall have all the rights and obligations imposed by this Declaration with respect to such Community Area prior to conveyance, except that the Corporation shall not be liable for payment of taxes and insurance for such Community Area until title is conveyed. Article 11. ADDITIONAL DUTIES AND RESPONSIBILITIES OF THE ASSOCIATION The Association shall provide snow removal for the streets and drives within the Community Area, and the Owners shall be assessed for their share of the costs associated therewith. Article 12. EASEMENTS A. Plat Easements. In addition to such easements as are created elsewhere in this Declaration and as may be created by Declarant pursuant to written instruments recorded in the Office of the Recorder of Hamilton County, Indiana, the Tract is subject to drainage easements, sewer easements, utility easements, entry way easements, landscape easements, general maintenance easements, signage easements, regular conservation easements, private drive easements and non-access easements, either separately or in any combination thereof, as are shown on the Plats, which are reserved for the use of Declarant, Owners, the Corporation, the Architectural Review Board, public utility companies and governmental agencies as follows: (i) Drainage and Utility Easements ("D & IX") are 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 Kensington Green and adjoining ground and/or public drainage systems; and it shall be the individual responsibility of each Owner to maintain the drainage across their own Lot. Under no circumstance shall said easement be blocked in any manner by the construction or reconstruction of any improvement, nor shall any grading restrict, in any manner, the waterflow. Said areas are subject to construction or reconstruction to any extent necessary, including landscape maintenance, to obtain adequate drainage at any time by any governmental authority having jurisdiction over drainage, by Declarant, and by the Architectural Review Board, but neither Declarant nor the Architectural Review Board shall have any duty to undertake any such construction or reconstruction. Said easements are for the mutual use and benefit of the Owners and are created for the use of Declarant, the Corporation and all public utility companies, not including transportation companies, for the installation and maintenance of mains, ducts, poles, lines and wires, as well as for all uses specified in the case of sewer easements. (ii) Utility and Sanitary Sewer Easements ("U & SSE") are created for the use of Declarant, the Corporation and all public utility companies, not including transportation companies, for the installation and maintenance of mains, ducts, poles, lines and wires, as well as for the use of the local governmental agency having jurisdiction over any sanitary waste disposal system which may be designed to serve Kensington Green for the purpose of installation, maintenance, replacement and repair of sewers that are a part of said system. (iii) Non-Access Easements ("NAE") are created to designate the area on the Plat over which vehicular ingress and egress, access to utilities and other facilities and infrastructure is prohibited. Such easements may only be removed by Declarant. PAGE 16 OF 21 (iv) Access Easement ("AE") is created to designate the part of the Tract, as shown on the Plat, over which pedestrian and vehicular ingress and egress is permitted. All easements mentioned herein include the right of reasonable ingress and egress over portions of the Tract as necessary to utilize the easements. No structure, including fences, shall be built on any drainage, sewer or utility easement if such structure would interfere with the utilization of such easement for the purpose intended or violate any applicable legal requirement or the terms and conditions of any easement specifically granted to a Person who is not an Owner by an instrument recorded in the Office of the Recorder of Hamilton County, Indiana, but a concrete, paver or asphalt driveway necessary to provide access to a Lot from a public street and a sidewalk installed by or at the direction of Declarant (and replacements thereof shall not be deemed a "structure" for the purpose of this Restriction.) B. General Easement. There is hereby created a blanket easement over, across, through and under the Tract for ingress and egress, installation, replacement, repair and maintenance of all Common Areas, Community Areas, underground utility and service lines and systems, including but not limited to water, sewers, the private drainage system, gas, telephones, electricity, television, cable or communication lines and systems. By virtue of this easement it shall be expressly permissible for Declarant, Corporation or the providing utility or service company to install and maintain Facilities and equipment on the Tract and to excavate for such purposes, provided Declarant or such company restores the disturbed area as nearly as is practicable to the condition to which it was found. No sewers, electrical lines, water lines, or other utility service lines or Facilities for such utilities may be installed or relocated except as proposed and approved by Declarant prior to the conveyance of the first Lot to an Owner or by the Architectural Review Board thereafter. Should any utility furnishing a service covered by the general easement herein provided request a specific easement by separate recordable document, Declarant or the Corporation shall have the right to grant such easement on the Tract without conflicting with the terms thereof. This blanket easement shall in no way affect any other recorded easements on the Tract and shall be limited to improvements as originally constructed, and shall not cover any portion of a Lot upon which a Residence has been constructed. C. Public Health and Safety Easements. An easement is hereby created for the benefit of and granted to, all police, fire protection, ambulance and all similar persons to enter upon the Community Area in the performance of their duties. D. Drainage Board Easement. An easement is hereby created for the benefit of, and granted to, the Drainage Board to enter the Tract and all Lots therein to the extent necessary to exercise its rights with respect to any legal drain constituting a part of the Drainage System. E. Declarant's Easement to Correct Drainage. For a period of twenty (20) years from the date of conveyance of the first Lot, Declarant reserves a blanket easement and right on, over and under the Tract and all Lots to maintain and to correct the drainage of surface water including to cut any trees, bushes or shrubbery, make any gradings of the soil, or to take any other similar action reasonably necessary, following which Declarant shall restore the affected property to its original condition as nearly as practicable. Declarant shall give reasonable notice of its intention to take such action to all affected Owners, unless in the opinions of Declarant an emergency exists which precludes such notice. F. Water Retention. The Owner of each Lot, by acceptance of a deed thereto, consents to the temporary storage (retention) of storm water within the drainage and utility easements (D & UE) and Rain Barrels on such Owner's Lot. Article 13. DECLARANT'S USE DURING CONSTRUCTION PAGE 17 OF 21 Notwithstanding any provisions to the contrary contained herein or in any other instrument or agreement, Declarant or its sales agents or contractors may maintain during the period of construction and sale of Lots and Residences within the Tract, upon such portion of the Tract as is owned by the Declarant, such Facilities as in the sole opinion of Declarant may be reasonably required, convenient or incidental to the construction and sale of Lots and Residences, including, without limitation, a business office, indoor or outdoor storage area, construction yards, signs, and sales offices. Article 14. ENFORCEMENT The Corporation, any Owner or Declarant shall have the right to enforce, by proceeding at law or in equity, all Restrictions, liens and charges now or hereafter imposed by the provisions of this Declaration and of any Supplemental Declaration, but neither Declarant nor the Corporation shall be liable for damage of any kind to any Person for failure either to abide by, enforce or carry out any of the Restrictions. No delay or failure by any Person for failure either to abide by, enforce or carry out any of the Restrictions or to invoke any available remedy with respect to a violation or violations thereof shall under any circumstances be deemed or held to be a waiver by that Person of the right to do so thereafter, or an estoppel of that Person to assert any right available to them upon the occurrence, recurrence or continuation of any violation or violations of the Restrictions. In any action to enforce this Declaration, the Person seeking enforcement shall be entitled to recover all costs of enforcement, including attorney's fees, if it substantially prevails in such action. Article 15. LIMITATIONS ON RIGHTS OF THE CORPORATION As long as there is a Class B Member, the Corporation may not use its resources nor take a public position in opposition to the General Plan of Development or to changes thereto, opposition to proposed development within the constraints of the Zoning Ordinance or changes thereto proposed by Declarant. Nothing in this paragraph shall be construed to limit the rights of the Members acting as individuals or in affiliation with other Members or groups as long as they do not employ the resources of the Corporation or identify themselves as acting in the name, or on the behalf, of the Corporation. Article 16. APPROVALS BY DECLARANT As long as there is a Class B Member, the following actions shall only require the proper approval of Declarant: (1) declarations affecting the Tract or other real estate; (2) mortgaging of the Community Area; (3) amendment of this Declaration and any Supplemental Declaration; and (4) changes in the basis for assessment or the amount, use and time of payment of the initial Assessment for the Community Area. Article 17. AMENDMENTS A. Generally. This Declaration may be amended at any time by an instrument signed by (i) the appropriate officers of the Corporation acting pursuant to the authority granted by not less than two- thirds (2/3) of the votes of the Class A members cast at a meeting duly called for the purpose of amending this Declaration and, to the extent required herein, and (ii) Declarant. B. By Declarant. Declarant hereby reserves the right unilaterally to amend and revise the standards, covenants and Restrictions contained in this Declaration during the period prior to December 31, 2026. Such amendments shall be in writing, executed by Declarant, and recorded with the Recorder PAGE 18 OF 21 of Hamilton County, Indiana. No such amendment, however, shall restrict or diminish the rights or increase or expand the obligations of Owners with respect to Lots conveyed to such Owners prior to the amendment or adversely affect the rights and interests of Mortgagees holding first mortgages on Residences at the time of such amendment with the exception of the addition or withdrawal of additional property as permitted in Article 7(A) and 7(B) and/or the merger of another corporation with the Corporation as permitted in Article 8(G). Declarant shall give notice in writing to such Owners of any amendments. Except to the extent authorized herein, Declarant shall not have the right at any time by amendment of this Declaration to grant or establish any easement through, across or over any Lot which Declarant has previously conveyed, without the consent of the Owner of such Lot. C. Effective Date. Any amendment shall become effective upon its recordation in the Office of the Recorder of Hamilton County, Indiana. Article 18. ZONING By acceptance of a deed to a Lot or any portion of the Tract all Owners acknowledge and do hereby grant consent and permission for the modification, revision, amendment, or other change to the Ordinance Z-605-15 Kensington Green Planned Unit Development District as amended and approved December 15, 2015 and as may be amended from time to time, to Declarant. Article 19. INTERPRETATION The aforesaid titles preceding the various paragraphs and subparagraphs of this Declaration are for convenience of reference only, and none of them shall be used as an aid to the construction of any provision of this Declaration. Wherever and whenever applicable, the singular form of any word shall be taken to mean or apply to the plural, and the masculine form shall be taken to mean or apply to the feminine or to the neuter. Article 20. DURATION The foregoing covenants and Restrictions are for the mutual benefit and protection of the present and future Owners, the Corporation, and Declarant, and shall run with the land and shall be binding on all parties and all Persons claiming under them until December 31, 2026, at which time said covenants and Restrictions shall be automatically extended for successive periods of ten (10) years, unless changes are made in whole or in part by vote of those Persons who are then the Owners of a majority of the Lots in the Tract. Article 21. SEVERABILITY Every one of the Restrictions is hereby declared to be independent of, and severable from, the rest of the Restrictions and of and from every other one of the Restrictions, and of and from every combination of the Restrictions. Therefore, if any of the Restrictions shall be held to be invalid or to be unenforceable, or to lack the quality of running with the land, that holding shall be without effect upon the validity, enforceability or "running" quality of any other one of the Restrictions Article 22. NON-LIABILITY OF DECLARANT Declarant shall not have any liability to an Owner or to any other Person with respect to drainage on, over or under a Lot. Such drainage shall be the responsibility of the Owner of the Lot upon which a Residence is constructed by acceptance of a deed to a Lot, and of the Builder of such Residence, and Owner shall be deemed to have agreed to indemnify and hold Declarant free and PAGE 19 OF 21 harmless from and against any and all liability arising from, related to, or in connection with drainage on, over and under the Lot described in such deed. Declarant shall have no duties, obligations or liabilities hereunder except such as are expressly assumed by Declarant, and no duty of, or warranty by, Declarant shall be implied by or inferred from any term or provision of this Declaration. Article 23. RESPONSIBILITY OF OWNERS Each Owner will preserve and maintain the part of the Drainage and Utility Easement located on such Owner's Lot and any Rain Barrel(s), consistent with the purpose of such area or device to provide and facilitate storm water drainage. Article 24. PRIVATE DRIVES Declarant hereby covenants that it shall convey and transfer the Private Drives included in and constituting a part of the Real Estate to the Association upon the completion of such Private Drives. The Private Drives so conveyed by Declarant to the Association shall, at the time of such conveyance, be subject to all easements, covenants, conditions, limitations and Restrictions then of record, but shall be free and clear of all liens and financial encumbrances, other than the lien of the then-current non-delinquent installment of real estate taxes and Assessments and subsequent installments thereof, which shall thereafter be paid when due by the Association, and shall be further subject to the terms and provisions of this Declaration. Declarant reserves unto itself, its successors and assigns, and hereby establishes for each Owner(s) of Lots, their guests and invitees, and all public and quasi- public vehicles, an access easement for ingress and egress on and over the Private Drives. The terms "public vehicles" and "quasi-public vehicles" shall include, but shall not be limited to, vehicles operated for police and fire protection, ambulances and other emergency vehicles, and for mail and other delivery services operated in the performance of their duties. Article 25. NOTICE OF PRIVATE DRIVES Each Owner, by the acceptance of a deed to a Lot, acknowledges that all drives Drive in Kensington Green are Private Drives and that the maintenance, repair and replacement of such Private Drives is the sole responsibility of the Association as described herein; each Owner further agrees that by the acceptance of a deed to a Lot they waive the right to request the dedication of the Private Drives to the City of Carmel, Indiana, or to the Board of Hamilton County Commissioners. Article 26. COSTS AND ATTORNEYS' FEES In any proceeding arising because of failure of an Owner to make any payments required by this Declaration, the Articles or the By-laws, or to comply with any provisions of this Declaration, the Articles, the By-Laws, or the rules, regulations and guidelines adopted pursuant thereto, as each may be amended from time to time, the Declarant or Corporation shall be entitled to recover its costs and reasonable attorneys' fees incurred in connection with such default or failure. IN TESTIMONY WHEREOF, Declarant has executed this Declaration as of the date set forth above. PAGE 20 OF 21 Declarant TURTLE POND PARTNERS, LLC By: __________________________ Bruce Zabst, Member STATE OF INDIANA ) )SS: COUNTY OF HAMILTON ) Before me, the undersigned, a Notary Public in and for said County and State, personally appeared Bruce Zabst, Member of Turtle Pond Partners, LLC, who acknowledged the execution of the foregoing Declaration of Covenants and Restrictions. IN WITNESS WHEREOF, I do hereby set my hand and notarial seal as of the _____ day of __________________, 2016. Signed: Printed: Notary Public My Commission Expires: My County of Residence is: I affirm, under the penalties for perjury, that I have taken reasonable care to redact each Social Security Number in this document unless required by law. Clifford T. Rubenstein This Instrument prepared by: Clifford T. Rubenstein, MAURER RIFKIN, P.C., 11550 North Meridian Street, Suite 115, Carmel, Indiana, 46032; telephone: (317) 844-8372. PAGE 21 OF 21 Exhibit A LEGAL DESCRIPTION PARCEL I: A part of the Northwest Quarter of the Southwest Quarter of Section 7, Township 17 North, Range 4 East, described as follows: Begin at a point 190.22 feet West of the Northeast Corner of the Northwest Quarter of the Southwest Quarter of said section, run thence South parallel with the East line of said Northwest Quarter of the Southwest Quarter 688.05 feet thence West 189.58 feet, thence North 689.88 feet to the North line of said Quarter Section, thence East on said North line 189.58 feet to the place of beginning, containing 3 acres more or less. PARCEL II: A part of the Northwest Quarter of the Southwest Quarter of Section 7, Township 17 North, Range 4 East, described as follows: Begin at a stone at the Northeast Corner of the Northwest Quarter of the Southwest Quarter of said section, run thence South on the East line of said Northwest Quarter of the Southwest Quarter 445 feet, thence West 190.22 feet, thence North 445 feet to the North line of said Quarter Section, thence East on said North line 190.22 feet to the place of beginning, containing 2 acres more or less.