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HomeMy WebLinkAboutCovenants and Restrictions DECLARATION OF COVENANTS AND RESTRICTIONS Carwinion Carmel, Indiana ci/ kytt fr Recorded , 1990 Book , Pages - Office of the Recorder of Hamilton County DECLARATION OF COVENANTS AND RESTRICTIONS CARWINION INDEX Page 1 . Definitions 2 2 . Declaration 6 3 . Additions to the Tract 7 4 . The Lakes 7 5 . The Parks 8 6 . Community Center 8 7. Path 8 8 . Drainage System 8 9 . Maintenance of Entry Ways and Planting Easements9 10 . Construction of Residences 9 (a) Land Use 9 (b) Size of Residence 10 (c) Temporary Structures 10 (d) Building Location and Finished Floor Elevation 10 (e) Driveways 10 (f) Yard Lights 10 (g) Storage Tanks 11 (h) Construction and Landscaping 11 (i) Mailboxes 12 (j ) Septic Systems 12 (k) Water Systems 12 ( 1) Drainage 13 11 . Maintenance of Lots 13 (a) Vehicle Parking 13 (b) Signs 14 (c) Fencing 14 (d) Vegetation 14 (e) Nuisances 15 (f) Garbage and Refuse Disposal 15 (g) Livestock and Poultry 15 (h) Outside Burning 15 (i) Antennas and Receivers 15 (j ) Exterior Lights 16 (k) Electric Bug Killers 16 12 . Carwinion Homeowners Association, Inc. 16 (a) Membership 16 (b) Powers 16 -i- Page (c) Classes of Members 16 (d) Voting and Other Rights of Members 16 (e) Reserve for Replacement 17 (f) Limitations on Action by the Corporation 17 (g) Mergers 18 (h) Termination of Class B Membership 18 13 . Assessments 18 (a) Creation of the Lien and Personal Obligation of Assessments 18 (b) General Assessment 19 (i) Purpose of Assessment 19 (ii) Basis for Assessment 19 (iii) Maximum Assessment 19 (iv) Method of Assessment 20 (v) Allocation of Assessment 20 (c) Initial Assessment for Community Center 21 (d) Special Assessment 21 (e) Date of Commencement of Assessments 22 (f) Effect of Nonpayment of Assessments; Remedies of the Corporation 22 (g) Subordination of the Lien to Mortgages 22 (h) Certificates 22 (i) Annual Budget 23 14 . Architectural Control 23 (a) The Architectural Review Board 23 (b) Purpose 23 (c) Conditions 23 (d) Procedures 24 15 . Community Area 24 (a) Ownership 24 (b) Density of Use 24 (c) Obligations of the Corporation 24 (d) Easements of Enjoyment 25 (e) Extent of Easements 25 (f) Additional Rights of Use 26 (g) Damage or Destruction by Owner 27 (h) Conveyance of Title 27 16 . Easements 27 (a) Plat Easements 27 (i) Drainage Easements 28 (ii) Sewer Easements 28 (iii) Utility Easements 28 (iv) Entry Way Easements 28 (v) Landscaping Easements 28 (vi) Lake Access Easements 29 (vii) Non-Access Easements 29 (b) General Easement 29 (c) Public Health and Safety Easements 30 (d) Drainage Board Easement 30 (e) Crossing Underground Easements 30 (f) Declarant ' s Easement to Correct Drainage 30 -ii- Page (g) Water Retention 31 17 . Declarant ' s Use During Construction 31 18 . Enforcement 31 19 . Limitations on Rights of the Corporation 31 20 . Approvals by Declarant 32 21 . Mortgages 32 (a) Notice to Corporation 32 (b) Notices to Mortgagees 32 (c) Notice of Unpaid Assessments 33 (d) Financial Statements 33 (e) Payments by Mortgagees 33 22 . Amendments 33 (a) Generally 33 (b) By Declarant 33 (c) Effective Date 34 23 . Interpretation 34 24 . Duration 34 25 . Severability 34 26 . Non-Liability of Declarant 34 Execution by Declarant 35 Exhibit A Description of Development Area Exhibit B General Plan of Development Exhibit C Description of the Tract -iii- DECLARATION OF COVENANTS AND RESTRICTIONS CARWINION This Declaration, made as of day of , 1990, by BRENWICK DEVELOPMENT COMPANY, INC. , an Indiana corporation, ( "Declarant") , WITNESSETH : WHEREAS, the following facts are true: A. Declarant is the legal or equitable owner of the real estate located in Hamilton County, Indiana, described in Exhibit A and depicted on Exhibit B, upon which Declarant in- tends, but is not obligated, to develop a residential subdivi- sion to be known as Carwinion. B. Declarant has or will construct certain improvements and amenities which shall constitute Community Area . C. Declarant desires to provide for the preservation and enhancement of the property values, amenities and opportunities in Carwinion and for the maintenance of the Tract and the im- provements thereon, and to this end desire to subject the Tract together with such additions as may hereafter be made thereto (as provided in Paragraph 3) 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 owners thereof . D. Declarant deems it desirable, for the efficient pres- ervation of the values and amenities in Carwinion, 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, and promoting the recreation, health, safety and welfare of the Owners of Lots in Carwinion. E. Declarant has incorporated under the laws of the State of Indiana a not-for-profit corporation known as Carwinion Homeowners Association, Inc. for the purpose of exercising such functions . NOW, THEREFORE, Declarant hereby declares that all of the Lots and lands in the Tract and such additions thereto as may hereafter be made pursuant to Paragraph 3 hereof, 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 in the Tract, and are established and agreed upon for the purpose of enhancing and protecting the value, desirability and attrac- tiveness of the Tract as a whole and of each of Residences, Lots and lands situated therein. The Restrictions shall run with the land and shall be binding upon Declarant, its succes- sors 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 any part or parts thereof . 1 . Definitions . The following terms, as used in this Declaration, unless the context clearly requires otherwise, shall mean the following : (a) "Architectural Review Board" means that entity established pursuant to Paragraph 14 of this Declaration for the purposes therein stated. (b) "Articles" means the Articles of Incorpora- tion of the Corporation, as amended from time to time. (c) "Assessments" means all sums lawfully assessed against the Members of the Corporation or as declared by this Declaration, any Supplemental Decla- ration, the Articles or the By-Laws . (d) "Board of Directors" means the governing body of the Corporation elected by the Members in accordance with the By-Laws . (e) "By-Laws" means the Code of By-Laws of the Corporation, as amended from time to time. (f) "Community Area" means (i) the Parks, (ii) the Drainage System, (iii) the Lakes and Lake Access Easements, (iv) the Entry Ways, (v) the Community Center, (vi) the Path to the extent not maintained by public authority, (vii) the Picnic Area, (viii) 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 more than one Section, and (ix) any areas of land ( 1) shown on any Plat, (2) described in any recorded instrument pre- pared 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 -2- to the use or enjoyment of some, but not necessarily all, of the Owners of Lots . (g) "Community Center" means the land depicted as Block "_ " on the Plat of Section One of Carwinion together with all improvements thereto and struc- tures and facilities thereon. (h) "Community Center Assessment" means the initial assessment for the Reserve for Replacements required by Paragraph 13(c) . (i) "Corporation" means Carwinion Homeowners Association, Inc. , an Indiana not-for-profit corpora- tion, its successors and assigns . (j ) "Declarant" means Brenwick Development Com- pany, Inc. , its successors and assigns to its interest in the Tract other than Owners purchasing Lots or Residences by deed from Declarant (unless the convey- ance indicated an intent that the grantee assume the rights and obligations of Declarant) . (k) "Development Area" means the land described in Exhibit A. ( 1) "Drainage Board" means the Hamilton County, Indiana Drainage Board, its successors or assigns . (m) "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 Off-Site Drainage Facilities, and the other structures, fixtures, properties, equipment and facilities (excluding the Lakes) located in 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. (n) "Entry Ways" means the structures con- structed as an entrance to Carwinion or a part thereof (exclusive of the street pavement, curbs and drainage structures and tiles) , the traffic island, if any, and the grassy area surrounding such structures . -3- (o) "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 such may be amended from time to time. (p) Landscaping Easement" means a portion of a Lot denoted on a Plat as an area to be landscaped and maintained by the Corporation. (q) "Lake" means any lake located in the Development Area and depicted on Exhibit B and "Lakes" means all of such Lakes . A numerically designated Lake means the Lake so designated by such number on the General Plan of Development . (r) "Lake Access Easement" means the area desig- nated on a Plat as a means of access to a Lake. (s) "Lot" means a platted lot as shown on a Plat . (t) "Lot Development Plan" means (i) a site plan prepared by a licensed engineer or architect, (ii) foundation plan and proposed finished floor eleva- tions, (iii) building plans, including elevation and floor plans, (iv) material plans and specifications, (v) landscaping plan, and (vi) all other data or in- formation that the Architectural Review Board may request with respect to the improvement or alteration of a Lot (including but not limited to the landscaping thereof) or the construction or alteration of a Resi- dence or other structure or improvement thereon. (u) "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, mainte- nance, 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 main- tenance, operation or improvement of the facility. (v) "Member" means a Class A or Class B member of the Corporation and "Members" means Class A and Class B members of the Corporation. -4- (w) "Mortgagee" means the holder of a first mortgage on a Residence. (x) "Off-site Drainage Facilities" means the retention pond and other drainage facilities located on land south of Carwinion pursuant to an easement granted to Declarant for the benefit of Carwinion. (y) "Owner" means a Person, including Declarant, Albers and Dodd, 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. (z) "Part of the Development Area" means any part of the Development Area not included in the Tract . (aa) "Parks" means the land depicted as Block "_" on the Plat for Section One of Carwinion and such other common areas as may be denoted on a Plat as "Park" or designated as "Park" in any recorded instru- ment executed by Declarant. (bb) "Path" means the bicycle/jogging path in- stalled pursuant to the provisions of Paragraph 7 and such other land or interest therein as is conveyed or granted to the Corporation for the purpose of being used for a bicycle/jogging path. (cc) "Person" means an individual, firm, corpora- tion, partnership, association, trust or other legal entity, or any combination thereof . (dd) "Picnic Area" means the area adjacent to Lake 1 designated by Declarant for use by the Owners for picnic and other recreational purposes . (ee) "Plat" means a final secondary plat of a portion of the Development Area recorded in the Office of the Recorder of Hamilton County, Indiana . (ff) "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 . (gg) "Residence" means any structure intended exclusively for occupancy by a single family together with all appurtenances thereto, including private garage and outbuildings and recreational facilities -5- usual and incidental to the use of a single family residential lot . (hh) "Restrictions" means the covenants, condi- tions, easements, charges, liens, restrictions, rules and regulations and all other provisions set forth in this Declaration, all applicable Supplemental Declara- tions and the Register of Regulations, as the same may from time to time be amended. (ii) "Register of Regulations" means the document containing rules, regulations, policies, and proce- dures adopted by the Board of Directors or the Archi- tectural Review Board, as the same may from time to time be amended. (jj ) "Section" means that portion of the Develop- ment Area that is depicted on a Plat . (kk) "Supplemental Declaration" means any Plat or supplementary declaration of covenants, conditions or restrictions that may be recorded and which extends the provisions of this Declaration to a Section and contains such complementary or supplementary provi- sions for such Section as are required or permitted by this Declaration. ( 11) "Carwinion" means the name by which the Tract shall be known. (mm) "Tract" means the land described in Exhibit C and such other real estate as may from time to time be annexed thereto under the provisions of Paragraph 3 hereof . (nn) "Zoning Authority" with respect to any action means the Town of Carmel Building Commissioner 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 building commissioner . 2 . Declaration. Declarant hereby expressly declares that the Tract and any additions thereto pursuant to Paragraph 3 hereof shall be held, transferred, and occupied subject to the Restrictions . The Owner of any Lot subject to these Restric- tions, by (i) acceptance of a deed conveying title thereto, or the execution of a contract for the purchase thereof, whether -6- 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 Restric- tions, and also for itself, its heirs, personal representa- tives, successors and assigns, covenants, agrees and consents to and with Declarant, the Corporation, and the Owners and subsequent Owners of each of the Lots affected by these Re- strictions to keep, observe, comply with and perform such Re- strictions and agreement. 3 . Additions to the Tract . Declarant shall have the right to bring within the scheme of this Declaration and add to the Tract real estate that is a Part of the Development Area or that is contiguous to the Development Area . In determining contiguity, public rights of way shall not be considered. The additions authorized under this Paragraph 3 shall be made by the filing of record of one or more Supplemental Decla- rations with respect to the additional real estate and by fil- ing with the Corporation any revisions to the General Plan of Development necessary to reflect the scheme of development of the additional real estate. Unless otherwise stated therein, such revisions to the General Plan of Development shall not bind Declarant to make the proposed additions . For purposes of this Paragraph 3 , a Plat depicting a portion of the Development Area shall be deemed a Supplementary Declaration. 4 . The Lakes . Declarant shall convey title to the Lakes to the Corporation. The Corporation shall be responsible for maintaining the Lakes . The Maintenance Costs of Lake 1 shall be assessed as a General Assessment against all Lots subject to assessment . The Maintenance Costs of Lake 2 and Lake 3 shall be assessed as a General Assessment against all Lots subject to assessment which abut such Lakes . Each Owner of a Lot that abuts a Lake shall be responsible at all times for maintaining so much of the bank of the Lake above the pool level as consti- tutes a part of, or abuts, his Lot and shall keep that portion of the Lake abutting his Lot free of debris and otherwise in reasonably clean condition. No boats shall be permitted upon any part of a Lake and no dock, pier, wall or other structure may be extended into a Lake without the prior written consent of the Architectural Review Board and such governmental author- ity as may have jurisdiction thereover. No swimming will be permitted in any Lake except if and to the extent authorized by the Board of Directors . Each Owner of a Lot abutting a Lake shall indemnify and hold harmless Declarant, the Corporation and each other Owner against all loss or damage incurred as a -7- result of injury to any Person or damage to any property, or as a result of any other cause or thing, arising from or related to use of, or access to, a Lake by any Person who gains access thereto from, over or across such Owner ' s Lot. Declarant shall have no liability to any Person with respect to a Lake, the use thereof or access thereto, or with respect to any damage to any Lot resulting from a Lake or the proximity of a Lot thereto, including loss or damage from erosion. 5 . The Parks . Declarant shall convey title to the Parks to the Corporation. The Corporation shall be responsible for maintaining the Parks and the Maintenance Costs thereof, to- gether with any costs incurred by the Corporation in connection with the improvement thereof, shall be assessed as a General Assessment against all Lots subject to assessment . The use of the Parks shall be subject to rules and regulations adopted by the Corporation which are not inconsistent with the provisions of this Declaration or any Supplemental Declaration. 6 . Community Center . Declarant shall construct the Com- munity Center and shall convey title to the Community Center to the Corporation upon completion of such construction subject to the right of Declarant to use the Community Center as provided in Paragraph 17 . The Corporation shall be responsible for maintenance of the Community Center and the Maintenance Costs thereof shall be assessed as a General Assessment against all Lots subject to assessment . The Corporation may adopt such rules and regulations with respect to the use of the Community Center as it deems appropriate and may charge reasonable fees for the use thereof, but no rule, regulation or charge shall be inconsistent with the provisions of this Declaration or any Supplemental Declaration. 7 . Path. Declarant may, but is not obligated to, install the Path within the right-of-way of Clay Center Road at the approximate location depicted on the General Plan of Develop- ment . If installed, the Corporation shall operate and maintain the Path and the Maintenance Costs thereof shall be assessed as a General Assessment against all Lots subject to assessment . The Corporation may adopt such rules and regulations with re- spect to the use thereof as it may deem appropriate except that it may not preclude the use of the Path by bicycles and other non-motorized vehicles . 8 . Drainage System. The Drainage System has or will be constructed for the purpose of controlling drainage within and adjacent to the Development Area and maintaining the water level in the Lakes . Declarant shall maintain the Drainage System in good condition satisfactory for the purpose for which it was constructed until the earlier of December 31, 1991, or -8- the date the Drainage System is accepted as a legal drain by the Drainage Board. After the earlier of such dates, the Corporation shall maintain the Drainage System to the extent not maintained by the Drainage Board and the Maintenance Costs thereof shall be assessed against all Lots subject to assess- ment 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 drainage system located entirely upon his Lot which is devoted exclu- sively to drainage of his Lot and is not maintained by the Drainage Board. 9 . Maintenance of Entry Ways and Landscaping Easements . The Corporation shall maintain the Entry Ways and the Landscap- ing Easements 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 a Landscaping Easement shall be kept neatly cut, cultivated or trimmed as reasonably required to maintain an attractive en- trance to Carwinion or a part thereof or a planting area within Carwinion. All entrance signs located on an Entry Way shall be maintained at all times in good and sightly condition appropri- ate to a first-class residential subdivision. 10 . Construction of Residences . (a) Land Use. Lots may be used only for resi- dential purposes and only one Residence not to exceed two and one-half stories or 35 feet in height measured from finish grade to the underside of the eve line may be constructed thereon. No portion of any Lot may be sold or subdivided such that there will be thereby a greater number of Residences in Carwinion than the number of original Lots depicted on the Plats . Not- withstanding 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 single family dwellings . No home occupa- tion shall be conducted or maintained on any Lot other than one which does not constitute a "special use" and is incidental to a business, profession or occupation of the Owner or occupant of such Lot and which is generally or regularly conducted at another location which is away from such Lot. No signs of any nature, kind or description shall be erected, placed, or per- mitted to remain on any Lot advertising a permitted home occupation. -9- (b) Size of Residence. Except as otherwise provided herein, no residence may be constructed on any Lot unless such Residence, exclusive of open porches, attached garages and basements, shall have a ground floor area of 2, 000 square feet if a one-story structure, or 1, 200 square feet if a higher structure, but in the case of a building higher than one story, there must also be at least 600 square feet in addi- tion to the ground floor area and the total floor area shall not be less than 2, 000 square feet . (c) Temporary Structures . No trailer, shack, tent, boat, basement, garage or other outbuilding may be used at any time as a dwelling, temporary or perm- anent, nor may any structure of a temporary character be used as a dwelling . (d) Building Location and Finished Floor Eleva- tion. No building may be erected between the building line shown on a Plat and the front Lot line, and no structure or part thereof may be built or erected nearer than ten (10) feet to any side Lot line or nearer than twenty (20) feet to any rear Lot line. A minimum finished floor elevation, shown on the development plan for each Section, has been estab- lished for each Lot and no finished floor elevation with the exception of flood protected basements shall be constructed lower than said minimum without the written consent of the Architectural Review Board. Demonstration of adequate storm water drainage in conformity with both on-Lot and overall project drain- age plans shall be a prime requisite for alternative finished floor elevations . Before construction com- mences, the finished floor elevation shall be physi- cally checked on the Lot and certified by a licensed professional engineer or a licensed land surveyor . (e) Driveways . All driveways shall be paved and maintained dust free. (f) Yard Lights . If street lights are not in- stalled in Carwinion, then each Owner shall in- stall and maintain a light in operable condition on his Lot at a location, having a height and of a type, style and manufacture approved by the Architectural Review Board prior to the installation thereof . Each such light fixture shall also have a bulb of a maximum wattage approved by Architectural Review Board to insure uniform illumination on each Lot and shall be equipped with a photo electric cell or similar device -10- to insure automatic illumination from dusk to dawn each day. (g) Storage Tanks . Any gas or oil storage tanks used in connection with a Lot shall be either buried or located in a Residence such that they are complete- ly concealed from public view. (h) Construction and Landscaping . All construc- tion upon, landscaping of and other improvement 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 land- scaping 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 comple- tion date. Unless a delay is caused by strikes, war, court injunction or acts of God, the Owner of any Lot which on the date of purchase from Declarant is not improved with a Residence shall commence construction of a Residence upon the Lot within three (3) years from the date the Owner acquired title thereto and shall complete construction of such Residence within one (1) year after the date of commencement of the building process, but in no event later than four (4) years after the date the Owner acquired title to the Lot unless such Lot is adjacent to a Lot upon which the Owner has constructed a Residence in which such Owner permanently resides . If the Owner fails to commence or complete construction of a Residence with- in the time periods specified herein, or if the Owner should, without Declarant ' s written approval, sell, contract to sell, convey, or otherwise dispose of, or attempt to sell, convey or otherwise dispose of, the Lot before completion of construction of a Residence on the Lot, then, in any of such events, Declarant may: (i) re-enter the lot and divest the Owner of title thereto by tendering to the Owner or to the Clerk of the Circuit Court of Hamilton County the lesser of (i) the same net dollar amount as was received by Declarant from such Owner as consideration for the conveyance by Declarant of the Lot, together with such actual costs, if any, as the Owner may prove to have been incurred in connection with the commencement of con- struction of a Residence on the Lot and (ii) -11- the then fair market value of the Lot, as determined by averaging two (2) appraisals made by qualified appraisers appointed by the Judge of the Hamilton County Circuit or Superior Court; (ii) obtain injunctive relief to force the Owner to proceed with construction of any Residence, a Lot Development Plan for which has been approved by the Architectural Review Board upon application by such Owner; or (iii) pursue other remedies at law or in equity as may be available to Declarant . The failure of the Owner of a Lot to apply for approval of, or receive approval from, the Architec- tural Review Board of a Lot Development Plan shall not relieve such Owner from his obligation to commence and complete construction of a Residence upon the Lot within the time periods specified herein. For the purposes of this subparagraph (h) , construction of a Residence will be deemed "completed" when the exterior of the Residence (including but not limited to the foundation, walls, roof, windows, entry doors, gutters, downspouts, exterior trim, paved driveway and landscaping) has been completed in conformity with the Lot Development Plan. (i) Mailboxes . All mailboxes installed upon Lots shall be uniform and shall be of a type, color and manufacture approved by the Architectural Review Board. Such mailboxes shall be installed upon posts approved as to type, size and location by the Archi- tectural Review Board. (j ) Septic Systems . No septic tank, absorption field or any other on-site sewage disposal system (other than a lateral main connected to a sanitary sewerage collection system operated by the Clay Town- ship Regional Waste District or a successor public agency or public utility) shall be installed or main- tained on any Lot . (k) Water Systems . No private or semi-private water supply system may be located upon any Lot which is not in compliance with regulations or procedures adopted or established by the Indiana State Board of Health, or other civil authority having jurisdiction. -12- To the extent that domestic water service is available from a water line located within 200 feet of the lot line maintained by a public or private utility com- pany, 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. Notwithstanding the foregoing, an Owner may establish, maintain and use an irrigation water well on his Lot as long as the well does not adversely affect the normal pool level of any Lake. ( 1) Drainage. In the event storm water drainage from any Lot or Lots flows across another Lot, provi- sion 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 speci- fic drainage easement for such flow of water is pro- vided on the Plat . To the extent not maintained by the Drainage Board, "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. Lots within Carwinion may be included in a legal drain established by the Drainage Board. In such event, each Lot in Carwinion will be subject to assessment by the Drainage Board for the costs of maintenance of the portion of the Drainage System and/or the Lakes included in such legal drain, which 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 his Lot and shall be liable for the cost of all repairs thereto or replacements thereof . 11. Maintenance of Lots . (a) Vehicle Parking . No camper, motor home, truck, trailer, boat or disabled vehicle may be parked or stored overnight or longer on any Lot in open public view. -13- (b) Signs . Except for such signs as Declarant may in its absolute discretion display in connection with the development of Carwinion and the sale of Lots therein and such signs as may be located on the Community Area, no sign of any kind shall be displayed to the public view on any Lot except that one 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 for rent, or may be displayed by a builder to advertise the property during construction and sale. (c) Fencing . No fence, wall, hedge or shrub planting higher than eighteen (18) inches shall be permitted between the front property line and the front building set-back line except where such plant- ing is located on a Landscaping Easement or is part of Residence landscaping and the prime root thereof is within four (4) feet of the Residence. Trees shall not be deemed "shrubs" unless planted in such a manner as to constitute a "hedge" . No chain link fence shall be erected upon a Lot if it would be visible from a street . No fence shall be erected or maintained on or within any Landscaping Easement except such as may be installed by Declarant and subsequently replaced by the Corporation in such manner as to preserve the uniformity of such fence, nor shall any fence be erected on any lot line. In no event may any fence be erected or maintained on any Lot without the prior approval of the Architectural Review Board, which may establish further restrictions with respect to fenc- ing, including limitations on (or prohibition of) the installation of fences in the rear yard of a Lot and design standards for fences . All fences shall be kept in good repair. No fence, wall, hedge or shrub plant- ing which obstructs sight lines at elevations between two (2) and six (6) feet above the street shall be placed or permitted to remain on any corner lot within the triangular area formed by the street property lines and a line connecting points 25 feet from the intersection of said street lines, or in the case of a street line with the edge of a driveway pavement or alley line. No tree shall be permitted to remain within such distances of such intersections unless the foliage line is maintained at sufficient height to prevent obstruction of such sight lines . (d) Vegetation. An Owner shall not permit the growth of weeds and volunteer trees and bushes on his Lot, and shall keep his Lot reasonably clear from such unsightly growth at all times . If an Owner fails to -14- comply with this Restriction, the Architectural Review Board shall cause the weeds to be cut and the Lot cleared of such growth at the expense of the Owner thereof and the Architectural Review Board shall have a lien against the cleared Lot for the expense thereof . (e) Nuisances . No noxious or offensive activity shall be carried on upon any Lot nor shall anything be done thereon which may be, or may become, an annoyance or nuisance to the neighborhood. Barking dogs shall constitute a nuisance. (f) Garbage and Refuse Disposal . No Lot shall be used or maintained as a dumping ground for trash. Rubbish, garbage or other waste shall be kept in sani- tary containers out of public view. All equipment for storage or disposal of such materials shall be kept clean and sanitary. (g) Livestock and Poultry. No animals, live- stock 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 any 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 dis- turb adjoining Owners . (h) Outside Burning. No trash, leaves, or other materials shall be burned upon a Lot if smoke there- from would blow upon any other Lot and, then, only in acceptable incinerators and in compliance with all applicable legal requirements . (i) Antennas and Receivers . No satellite re- ceiver or down-link shall be permitted on any Lot . No exterior antenna shall be permitted on any Lot without the prior written consent of the Architectural Review Board. The Architectural Review Board shall not be obligated to give its consent to the installation of any exterior television antenna if television recep- tion is available from underground cable connections serving the Lot or to the installation of any other exterior antenna if all Owners of Lots within 200 feet of the Lot upon which the proposed antenna would be erected do not consent in writing to the installation thereof . -15- (j ) Exterior Lights . No exterior lights shall be erected or maintained between the building line and rear lot line so as to shine or reflect directly upon another Lot. (k) Electric Bug Killers . Electric bug killers, "zappers" and other similar devices shall not be in- stalled at a location or locations which will result in the operation thereof becoming a nuisance or annoy- ance to other Owners and shall only be operated when outside activities require the use thereof and not continuously. 12 . Claridge Farm 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 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 to substantially all of the interest of Declarant in the Development Area, shall hold a Class B membership in the Corpora- tion. The Class B membership shall termi- nate upon the resignation of the Class B member, when all of the Lots in the Develop- ment Area (as depicted on the General Plan of Development) have been sold, or on December 31, 2000, whichever first occurs . (d) Voting and Other Rights of Members . The voting and other rights of Members shall be as speci- fied in the Articles and By-Laws . -16- (e) Reserve for Replacements . The Board of Directors shall establish and maintain the Reserve for Replacements by the allocation and payment to such reserve fund of an amount determined annually by the Board to be sufficient to meet the cost of periodic maintenance, repairs, renewal and replacement of the Community Area . In determining the amount, the Board 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 Board, 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 at least two-thirds of the Mortgagees (based on one vote for each first mort- gage owned) or two-thirds (2/3) 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 Para- graph 15(a) , by act or omission seek to abandon, par- tition, 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 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, re- placement 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 omis- sion change, waive or abandon any scheme of regula- tions or their enforcement pertaining to the architec- tural design or the exterior appearance of Residences, or the maintenance and up-keep of the Community Area; or (vi) fail to maintain the Reserve for Replacements in the amount required by this Declaration. -17- (g) Mergers . Upon a merger or consolidation of another corporation with the Corporation, its proper- ties, rights and obligations may, as provided in its articles of incorporation, by operation of law be transferred to another surviving or consolidated corporation or, alternatively, the properties, rights and obligations of another corporation may by opera- tion of law be added to the properties, rights and obligations of the Corporation as a surviving corpora- tion pursuant to a merger. The surviving or consoli- dated corporation may administer the covenants and restrictions established by this Declaration within the Tract together with the covenants and restrictions established upon any other properties as one scheme. No other merger or consolidation, however, shall effect any revocation, change or addition to the cove- nants 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 termi- nates, but no such termination shall affect the rights and powers of Declarant set forth in Paragraphs 16(b) , 16(f) , 17 or 21(b) . 13 . Assessments . (a) Creation of the Lien and Personal Obligation of Assessments . Declarant, Albers and Dodd hereby covenant, 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 Assess- ments, (2) Initial Assessment for Community Center and (3) Special Assessments, such Assessments to be estab- lished 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 is made until paid in full . 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. -18- (b) General Assessment . (i) Purpose of Assessment . The Gener- al Assessment levied by the Corporation shall be used exclusively to promote the recreation, health, safety, and welfare of the Owners of Lots and for the improvement, maintenance and operation of the Community Area. (ii) Basis for Assessment. (1) Lots Generally. Each Lot owned by a Person other than Declarant shall be assessed at a uniform rate without regard to whether a Residence has been con- structed upon the Lot . (2) Lots Owned by De- clarant . No Lot owned by Declarant shall be assessed by the Corporation except such Lots as have been im- proved by the construction thereon of Residences which shall be subject to assess- ment as provided in Clause (1) above. (3) Change in Basis . The basis for assessment may be changed with the assent of the Class B member and of (i) two-thirds (2/3) of the Class A members (excluding Decla- rant) or two-thirds (2/3) of the Mortgagees (based on one vote for each first mortgage owned) who are voting in person or by proxy at a meet- ing of such members duly called for this purpose. (iii) Maximum Assessment . (1) Until December 31, 1990, the Maximum General Assessment in any assessment -19- year of the Corporation shall be Six Hundred Dollars ($600 . 00) . (2) Thereafter, the Board of Directors may in any assessment year increase the Maximum General Assessment by an amount not in excess of ten percent (10%) of the amount of the Maximum General Assessment then in effect, to be effective the first day of the next assessment year . (3) The Maximum General Assessment may be increased beyond that specified in clause (2) above with the assent of the Class B member and of (i) a majority of the Class A members (excluding Declarant) or a majority of the Mortgagees (based on one vote for each first mortgage owned) who are voting in person or by proxy at a meet- ing of such members duly called for this purpose. (iv) Method of Assessment . By a vote of a majority of the Directors, the Board of Directors shall, on the basis specified in subparagraph (ii) , fix the General Assess- ment for each assessment year of the Corpo- ration at an amount not in excess of the current maximum permitted by subparagraph (iii) except that the General Assessment shall, without regard to the limitation imposed by subparagraph (iii) , be fixed at an amount sufficient to meet the obligations imposed by this Declaration upon the Corpo- ration. The Board of Directors shall estab- lish the date(s) the General Assessment shall become due, and the manner in which it shall be paid. (v) Allocation of Assessment . The cost of maintaining, operating, restoring or replacing the Community Area has been allo- -20- cated in this Declaration among Owners of Lots on the basis of the location of the lands and improvements constituting the Community Area and the intended use there- of . In determining the General Assessment, costs and expenses which in accordance with the provisions of this Declaration are to be borne by all Owners shall first be allocated to all Owners . Costs and expenses which in accordance with the provisions of this Dec- laration are to be borne by the Owners of certain Lots shall then be allocated to the Owners of such Lots . The provisions of subparagraph (ii) for uniform assessment shall not be deemed to require that all assessments against vacant Lots or Lots improved with comparable types of Residences be equal, but only that each Lot be assessed uniformly with respect to comparable Lots subject to assessment for similar costs and expenses . (c) Community Center Assessment . On the earlier of (i) the date a Lot is conveyed by Declarant to an Owner (other than the holder of a first mortgage on such Lot in a conveyance which constitutes a deed in lieu of foreclosure) , (ii) the date a Residence con- structed on the Lot has been certified for occupancy by the Zoning Authority or (iii) the date a Residence on the Lot is first occupied by an Owner upon comple- tion of construction thereof , there shall be due and payable to the Corporation by the Owner of such Lot the sum of Five Hundred Dollars ($500 . 00) which shall be deposited in the Reserve for Replacements main- tained by the Corporation. (d) Special Assessment . The Corporation may levy in any fiscal year a Special Assessment applic- able 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 have the assent of the Class B member and of 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. -21- (e) Date of Commencement of Assessments . The General Assessment shall commence with respect to assessable Lots within a Section on the first day of the month following conveyance of the first Lot in the Section to an Owner who is not Declarant . The initial Assessment on any assessable Lot shall be adjusted according to the days remaining in the month in which the Lot became subject to assessment . (f) Effect of Nonpayment of Assessments; Reme- dies of the Corporation. Any Assessment not paid within thirty (30) days after the due date may upon resolution of the Board of Directors bear interest 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 the 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 in installments, upon default in the pay- ment 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 . (g) 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 Assess- ments as to payments which became due more than six (6) months prior to such sale or transfer. No sale or transfer shall relieve such Lot from liability for any Assessments thereafter becoming due or from the lien thereof . (h) 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. -22- (i) 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. 14 . Architectural Control . (a) The Architectural Review Board. An Archi- tectural Review Board consisting of three (3) or more Persons as provided in the By-Laws shall be appointed by the Class B member . At such time as there is no Class B member, the Architectural Review Board shall be appointed by the Board of Directors . (b) Purpose. The Architectural Review Board shall regulate the external design, appearance, use, location and maintenance of the Tract and of improve- ments thereon in such manner as to preserve and en- hance values and to maintain a harmonious relationship among structures, improvements and the natural vegeta- tion and topography. (c) Conditions . Except as otherwise expressly provided in this Declaration, no improvements, altera- tions, repairs, change of colors, excavations, changes in grade, planting or other work that in any way alters any Lot or the exterior of the improvements located thereon from its natural or improved state existing on the date such Lot was first conveyed in fee by the Declarant to an Owner shall be made or done without the prior approval by the Architectural Review Board of a Lot Development Plan therefor . Prior to the commencement by any Owner other than Declarant of (i) construction, erection or alteration of any Resi- dence, building, fence, wall, swimming pool, tennis court, patio, or other structure on a Lot or (ii) any plantings on a Lot, a Lot Development Plan with re- spect thereto shall be submitted to the Architectural Review Board, and no building, fence, wall , Residence or other structure shall be commenced, erected, main- tained, improved, altered, made or done, or any plant- ings made, by any Person other than Declarant without the prior written approval of the Architectural Review Board of a Lot Development Plan relating to such con- struction, erection, alteration or plantings . Such approval shall be in addition to, and not in lieu of, all approvals, consents, permits and/or variances required by law from governmental authorities having -23- jurisdiction over Carwinion, and no Owner shall under- take any construction activity within Carwinion unless all legal requirements have been satisfied. Each Owner shall complete all improvments to a Lot strictly in accordance with the Lot Development Plan approved by the Architectural Review Board. As used in this subparagraph (c) , "plantings" does not include flowers, bushes, shrubs or other plants having a height of less than eighteen (18) inches . (d) Procedures . In the event the Architectural Review Board fails to approve, modify or disapprove in writing a Lot Development Plan within thirty (30) days after t+cv - such plan has been duly filed with the Architectural Review Board in accordance with proce- dures established by Declarant or, if Declarant is no longer a Class B member, the Board of Directors, approval will be deemed denied. A decision of the Architectural Review Board (including a denial result- ing from the failure of such Board to act on the plan within the specified period) may be appealed to the Board of Directors which may reverse or modify such decision (including approve a Lot Development Plan deemed denied by the failure of the Architectural Review Board to act on such plan within the specified period) by a two-thirds (2/3) vote of the Directors then serving . 15 . Community Area . (a) Ownership. The Community Area shall remain private, and neither Declarant ' s execution or record- ing 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 agency, authority or utility for use as roads, utili- ties, parks or other public purposes . (b) Density of Use. Declarant expressly dis- claims any warranties or representations regarding the density of use of the Community Area or any facilities located thereon. (c) Obligations of the Corporation. The Corpo- ration, subject to the rights of Declarant and the Owners set forth in this Declaration, shall be respon- sible for the exclusive management and control of the -24- 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 . (d) 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 Declara- tion or any Supplemental Declaration executed by De- clarant . 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. All Owners may use the Parks, the Community Center, the Picnic Area and the Path subject to the reserved rights of Declarant and the Corporation. The Owners of Lots abutting Lakes _ and _ may use such Lakes, but such use shall be limited to fishing and such other uses as may be authorized by resolution adopted by the Board of Directors . Lake _ may be used by all Owners, but only for the purposes authorized by the Board of Directors . (e) Extent of Easements . The easements of en- joyment created hereby shall be subject to the follow- ing : (i) the right of the Corporation to establish reasonable rules for the use of the Community Area and to charge reasonable admission and other fees for the use of any recreational facilities located in or con- stituting a part of the Community Area ex- cept that no fee shall be charged to those specifically authorized to use such facili- ties by this Declaration or any Supplemental Declaration unless the Corporation is speci- fically authorized to do so by this Declara- tion or a Supplemental Declaration; (ii) the right of the Corporation to suspend the right of an Owner and all Per- sons whose right to use the Parks, the Lakes, the Community Center and the Picnic Area derives from such Owner ' s ownership of a Lot to use such portions of the Community Area for any period during which any Assess- ment against his Lot remains unpaid for more than thirty (30) days after notice; -25- (iii) the right of the Corporation to suspend the right of an Owner or any Person claiming through the Owner to use the Parks, the Lakes, the Community Center and the Picnic Area for a period not to exceed sixty (60) days for any other infraction of this Declaration, any Supplemental Declaration or the Register of Regulations; (iv) the right of the Corporation to mortgage any or all of the Community Area and the facilities constructed thereon for the purposes of improvements to, or repair of, the Community Area or facilities con- structed thereon, pursuant to approval of the Class B member and two-thirds (2/3) of the votes of the Class A members (excluding Declarant) or two-thirds (2/3) of the Mort- gagees (based on one vote for each first mortgage owned) , voting in person or by proxy at a regular meeting of the Corpora- tion or a meeting duly called for this pur- pose; (v) the right of the Corporation to dedicate or transfer all or any part of the Community Area to any public agency, author- ity or utility, but no such dedication or transfer shall be effective unless an in- strument signed by the Class B member 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) or two-thirds (2/3) of the Mortgagees (based on one vote for each first mortgage owned) , agreeing to such dedication or transfer, has been recorded; and (vi) the right of Declarant in any Supplemental Declaration or Plat to restrict the use of Community Area located in a Sec- tion to (a) Owners of Residences located in such Section or (b) to other Owners of less than all of the Lots in the Tract . (f) 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 facili- ties may use the Community Area and facilities subject -26- to such general regulations consistent with the provi- sions of this Declaration and all Supplemental Decla- rations as may be established from time to time by the Corporation and included within the Register of Regu- lations . (g) Damage or Destruction by Owner . In the event the Community Area is damaged or destroyed by an Owner or any of his guests, tenants, licensees, agents, or member of his family, such Owner authorizes the Corporation to repair said damaged area; the Corporation shall repair said damaged area in a good workmanlike manner in conformance with the original plans and specifications of the area involved, or as the area may have been modified or altered subsequent- ly by the Corporation in the discretion of the Corpo- ration. An amount equal to the costs incurred to effect such repairs shall be assessed against such Owner as a Special Assessment and shall constitute a lien upon the Lot of said Owner . (h) Conveyance of Title. Declarant may retain the legal title to the Community Area or any portion thereof until such time as it has completed improve- ments thereon, but notwithstanding any provision here- in, the Declarant hereby covenants that it shall con- vey the Parks, the Lakes , the Community Center and the Picnic Area to the Corporation, free and clear of all liens and financial encumbrances except as otherwise provided herein, not later than two (2) years from the date such Community Area or portion thereof is sub- jected to this Declaration. Owners shall have all the rights and obligations imposed by this Declaration with respect to such Community Area prior to convey- ance, except that the Corporation shall not be liable for payment of taxes and insurance for such Community Area until title is conveyed. 16 . Easements . (a) Plat Easements . In addition to such ease- ments 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, Lots are subject to drainage easements, sewer easements, utility easements, entry way easements, landscaping easements, lake access easements and non-access easements, either separately or in any combination thereof , as shown on the Plats, which are reserved for the use of Owners, public utility companies and governmental agencies as follows : -27- (i) Drainage Easements (DE) are created to provide paths and courses for area and local storm drainage, either over- land or in adequate underground conduit, to serve the needs of Carwinion and adjoining ground and/or public drainage systems; and it shall be the individual responsibility of each Owner to maintain the drainage across his 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 reconstruc- tion to any extent necessary to obtain ade- quate drainage at any time by any govern- mental authority having jurisdiction over drainage, by Declarant, and by the Architec- tural Review Board, but neither Declarant nor the Architectural Review Board shall have any duty to undertake any such con- struction or reconstruction. Said easements are for the mutual use and benefit of the Owners . (ii) Sewer Easements (SE) are created for the use of the local governmental agency having jurisdiction over any storm and sani- tary waste disposal system which may be designed to serve Carwinion for the purpose of installation and maintenance of sewers that are a part of said system. (iii) Utility Easements (UE) are created for the use of Declarant, the Corporation and all public utility companies, not in- cluding 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 . (iv) Entry Way Easements (EWE) are created for the use by Declarant, the Archi- tectural Review Board and the Corporation for the installation, operation and mainte- nance of the Entry Ways . (v) Landscaping Easements (LE) are created for the use by Declarant, the Archi- -28- tectural Review Board and the Corporation for the planting and maintenance of trees, shrubs and other plantings . (vi) Lake Access Easements (LAE) are created for the use of Declarant, the Corpo- ration, the Drainage Board and the Town of Carmel for the purpose of gaining access to the Lakes, the Drainage Facilities and the sanitary sewer lift station in the course of maintenance, repair or replacement of any thereof . (vii) Non-Access Easements (NAE) are created to preclude access from certain Lots to abutting rights-of-way across the land subject to such easements . All easements mentioned herein include the right of reasonable ingress and egress for the exercise of other rights reserved. No structure, including fences, shall be built on any drainage, sewer or utility easement, but a paved driveway necessary to provide access to a Lot from a public street shall not be deemed a "structure" for the purpose of this Re- striction. (b) General Easement . There is hereby created a blanket easement over, across, through and under the Tract for ingress, egress, installation, replacement, repair and maintenance of underground utility and service lines and systems, including but not limited to water, sewers, gas, telephones, electricity, tele- vision, cable or communication lines and systems . By virtue of this easement it shall be expressly permis- sible for Declarant or the providing utility or ser- vice company to install and maintain facilities and equipment on the Tract and to excavate for such pur- poses if Declarant or such company restores the dis- turbed area as nearly as is practicable to the condi- tion in 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 in a Section except as proposed and approved by Declarant prior to the conveyance of the first Lot in a Section to an Owner or by the Architectural Re- view Board thereafter . Should any utility furnishing a service covered by the general easement herein pro- vided request a specific easement by separate record- able document, Declarant or the Corporation shall have -29- the right to grant such easement on the Tract without conflicting with the terms hereof . This blanket ease- ment shall in no way affect any other recorded ease- ments on the Tract, shall be limited to improvements as originally constructed, and shall not cover any portion of a Lot upon which a Residence has been con- structed. (c) Public Health and Safety Easements . An easement is hereby created for the benefit of , and granted to, all police, fire protection, ambulance, delivery vehicles , 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) Crossing Underground Easements . Easements utilized for underground service may be crossed by driveways, walkways, Lake Access Areas and the Path provided prior arrangements are made with the utility company furnishing service. Such easements as are actually utilized for underground service shall be kept clear of all other improvements, including build- ings, patios, or other pavings, other than crossings, driveways, walkways, Lake Access Areas or the Path, and neither Declarant nor any utility company using the easements shall be liable for any damage done by either of them or their assigns, agents, employees, or servants to shrubbery, trees, flowers or other im- provements of the Owner located on the land covered by said easements . (f) Declarant ' s Easement to Correct Drainage. For a period of ten (10) years from the date of con- veyance of the first Lot in a Section, Declarant re- serves a blanket easement and right on, over and under the ground within that Section to maintain and to correct drainage of surface water in order to maintain reasonable standards of health, safety and appear- ance. Such right expressly includes the right to cut any trees, bushes or shrubbery, make any gradings of the soil, or to take any other similar action reason- ably necessary, following which Declarant shall re- store the affected property to its original condition -30- as nearly as practicable. Declarant shall give reasonable notice of its intention to take such action to all affected Owners, unlessxistsin which the opinion precludes of such De- clarant an emergency notice. (g) Water Retention. The Owner of each Lot, by acceptance of a deed thereto, consents to the tempora- ry storage (detention) of storm water within the drainage easements (DE) on such Owner ' s Lot . 17 . Declarant ' s Use During Construction. Notwithstanding any provisions to the contrary contained herein or in any other instrument or agreement, Declarant or its sales agents or con- tractors may maintain during the period of construction and sale of Lots and Residences in the Tract or the Development Area, upon such portion thereof as is owned or leased by e e- clarant, 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, but without limiting the generality thereof , a business office, storage area, construction yards, signs, model Residences and sales offices . In addition, Declarant reserves the right to periodith t itlis engaged in the thes office in Community ofnLots in Carwiter nion. ring the period t 18 . Enforcement . The Corporation, any Owner or Declarant shall have the right to enforce, by proceeding at law or in equity, all restrictions, conditions, covenants, reservations, liens and charges now or hereafter imposed by the provisions of this Declaration and of any Supplemental Declarations, but neither Declarant nor the Corporation shall be liable for dam- age 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 to enforce 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 there- after, or an estoppel of that Person to assert any right avail- able to him upon the occurrence, recurrence or continuation of any violation or violations of the Restrictions . 19 . 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 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. -31- 20 . Approvals by Declarant . As long as there is a Class B mmember, the following actions shall require the prior app of Declarant: the addition of real estate to the Tract; dedi- cation or transfer of the Community Area; mergers and consoli- dations of Sections within the Tract or of the Tract with other real estate; mortgaging of the Community Area; amendment of this Declaration and any Supplemental Declaration; and changes in the basis for and time nt, the ot paymentsmum of the ni al n tialsessment or Assessment the amount, use for the Community Center . 21 . Mortgages (a) Notice to Corporation. Any Owner who places a first mortgage lien upon his Residence or the Mortgagee shall notify the Secretary of the Board of Directors of such mortgage and provide the name and address of the Mort- gagee. A record of such Mortgagee' s name and eaddergessredall ll be maintained by the Secretary and any no be given to the Mortgagee pursuant to the terms of the Declaration any Supplemental Declaration, the Articles or the By-Laws (the "Organizational Documents") shall be deemed effectively given if mailed to such Mortgagee at the address shown in such record in the time provided. Unless notification of any such mortgage and the name and address of Mortgagee are furnished to the Secretary, either by the Owner or the Mortgagee, no notice to any Mortgagee as may be otherwise required by the Organizational Documents shall be required and no Mortgagee shall be entitled to vote by virtue of the Organizational Documents or a proxy granted to such Mortgagee in connection with the mortgage. (b) Notices to Mortgagees . The Corporation shall promptly provide to any Mortgagee of whom the Corporationan has been provided notice under subparagraph (a) notice of any of the following : (i) Any condemnation or casualty loss that affects a material portion of the Community Area; (ii) Any delinquency in the payment of any Assessment owed by the Owner of any Residence on which said Mortgagee holds a mortgage or any default by an Owner under the Organizational Documents, if said delinquency or default continues for more than sixty (60) days; (iii) fy any insurance cancellation policyr ormaterial fidelity modification c bond main- tained o by the Corporation; -32- (iv) Any proposed action that requires the consent of a specified percentage of Mortgagees; and, (v) Any proposed amendment of the Organizational Documents effecting a change in (A) the interests in the Community Area appertaining to any Resi- dence or the liability for Maintenance Costs appertaining thereto, (B) the vote appertaining to a Residence or (C) the purposes for which any Residence or the Community Area are restricted. (c) Notice of Unpaid Assessments . The Corporation shall, upon request of a Mortgagee, a proposed mortgagee, or a proposed purchaser who has a contractual right to purchase a Residence, furnish to such mortgagee or pur- chaser a statement setting forth the amount of the unpaid Assessments against the Residence and the Owners, and any Mortgagee or grantee of the Residence shall not be liable ien for, nor shall dh Assessments Residence inveyed excesse of subjecttheamount to a lset for, any unpaid forth in such statement . (d) Financial Statements . Upon the request of any Mortgagee, the Corporation shall provide to said Mortgagee the most recent financial statement prepared on behalf of the Corporation. (e) Payments by Mortgagees . Any Mortgagee may (i) pay taxes or other charges that are in default and that may or have become a lien upon the Community Area or any part thereof and (ii) pay overdue premiums on hazard insurance policies or secure new hazard insurance coverapgeMorr the e Community Area in case of a lapse of a policy. making such payments shall be entitled to immediate reim- bursement from the Corporation. 22 . Amendments . (a) Generally. This Declaration may be amendedat any time by an instrument signed by ( ) toe the ppropriaae e officers of the Corporation acting pursuant ty 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 by Paragraph 20, (ii) Declarant . (b) By Declarant . Declarant hereby reserves the right unilaterally to amend and revise the standards, cove- nants and restrictions s Decembered31,1 2000 .this Such Declaration amendments theduring period prior -33- executed by Declarant, and recorded shall be in writing, with the Recorder of Hamilton County, Indiana. No such amendment, however, shall restrict obligationsdoflnish Ownershe with rightsr or increase or expand priors to the amend- sent or Lots conveyedlyf affect the Crights h rand interests of Mort- gagees holding first mortgages on Residences at the time of such amendment . Declarant shall giveamendments in Ewriting xcept to to such Owners and Mortgagees of any Declarant shall time the extent authorized in Paragraph by amendment of this Decla- not have the right at anyeasement through, across oration to any r Lot ntestablish has previously conveyed or over 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 . 23 . Interpretation. The underlined titles preceding the e various paragraphs and subparagraphsof and noneofDeclaration are for convenience of reference only, rf the n shallof thise used as an aid to the construction of anyprothe singular Declaration. Wherever and whenever applicable,1 to plural,na form of any word shall be taken to mean or apply theto the and the masculine form mneuterhall be taken to mean or apply feminine or to ctions are 24 . Dur_ a The it and going covants and protection of the presents and future for the mutuall benefit Owners , the Corporation, and Declarant, and shall run with the land and shall be bindingon 1112�ZOti at which tall ime sons saidclaim- ing under them until January extended for cove- nants and restrictions shall be t unlesslchanged in whole successive periods of ten (10) years, or in part by vote of those Persons who are then the Owners of a majority of the Lots in the Tract . 25 . Severability. Every one of the Restrictions isrhereby est f declared to be independent of , and severabley other rom, he the Ref the Restrictions and of and from combination of the Restric- f strictions, and of and from every Restric- tions . Therefore, if any of the Restrictions shall be held to to be invalid or to be unenforceable, orto lack cbthehoute quality of ct running with the land, that holding shall"running" quality of any upon the validity, enforceability or other one of the Restrictions . t have 26 . Non-Liabilit of porlto navy other Person with t . Declarant shall orespect any liability to an Owner -34- to drainage on, over or under a Lot . Such drainage shall be the a responsibility of the Owner ofthe ilder Lot upon whichence Resi- dence deP i- and dente is constructed and of the builder an Owner, by an acceptance of a deed ato arLot,ashalld be sdeered t s from to agree to indemnify and hold Dec arising from, related to, or rntand against any and all liability over and under the Lot de- sn connectionnwithddrainage shall have no duties , obliga- tions in such deed. expressly or liabilities hereunder t eXofptorswarranty by, expresso assumed by Declarant, and no y term or provision shall be implied by or inferred from any this Declaration. IN TESTIMONY WHEREOF, Declarant has executed this Declara- tion as of the date set forth BRENWICK DEVELOPMENT COMPANY, INC. By George P. Sweet President Attest: Tom Charles Huston Secretary -35- STATE OF INDIANA ) SS: COUNTY OF MARION ) Before me, the undersigned, a Notary Public in and for said County and State, personally appeared George P. Sweet and Tom Charles Huston, the President and Secretary, respectively, Brenwick Development Company, Inc. , an Indiana corporation, who acknowledged the execution and Restrictions f the abore and and onregoing behalf of sad Declara- tion of Covenants by its Board of corporation pursuant to authority granted Directors . hand and Notarial Seal this day of WITNESS my 1990 . Notary Public Residing in County (printed signature) My Commission Expires : 0290w This instrument prepared by Tom Charles Huston, Attorney at Law, 1313 Merchants Bank Building, 11 South Meridian Street, Indianapolis, Indiana 46204 . -36-