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BARNES & THORNBURQ
DECLARATION OF COVENANTS AND RESTRICTIONS
Ashbrooke
Carmel, Indiana
Recorded , 1991
Instrument No. 91—
Office of the Recorder of Hamilton
County
DECLARATION OF COVENANTS AND RESTRICTIONS
ASHBROORE
INDEX
Page
1. Definitions 2
2 . Declaration 6
3 . Additions to the Tract
4 . The Lakes 77
7
5 . Drainage System 8
6. Maintenance of Entry Ways and Landscape Easements 8
7 . Maintenance of Sidewalks 8
8 . Construction of Residences 8
(a) LandUse 9
(b) Size of Residence 9
(c) Temporary Structures
(d) Building Location and Finished Floor 9
Elevation
(e) Driveways 9
109
(f) Yard Lights 10
(g) Storage Tanks 10
(h) Construction and Landscaping 11
(i) Mailboxes 11
(j) Septic Systems 11
(k) Water Systems 11
(1) Drainage 12
9 . Maintenance of Lots 12
(a) Vehicle Parking 12
(b) Signs 12
(c) Fencing 13
(d) Vegetation 13
(e) Nuisances 13
(f) Garbage and Refuse Disposal 14
(g) Livestock and Poultry 14
(h) Outside Burning 14
(i) Antennas and Receivers 14
(j) Exterior Lights. 14
(k) Electric Bug Killers 14
10. Ashbrooke Homeowners Association, Inc 14
(a) Membership 15
(b) Powers 15
(c) Classes of Members 15
(d) Voting and Other Rights of Members 15
(e) Reserve for Replacements
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(f) Limitations on Action by the Corporation . . . 16
(g) Mergers 16
(h) Termination of Class B Membership 17
11. Assessments 17
(a) Creation of the Lien and Personal Obligation
of Assessments 17
(b) General Assessment 17
(1) Purpose of Assessment 17
(ii) Basis for Assessment 17
(iii) Method of Assessment 18
(iv) Allocation of Assessment 18
(c) Architectural Control Assessment 19
(d) Special Assessment 19
(e) Date of Commencement of Assessments 19
(f) Effect of Nonpayment of Assessments; Remedies
of the Corporation 20
(g) Subordination of the Lien to Mortgages 20
(h) Certificates 20
(i) Annual Budget 21
12 . Architectural Control 21
(a) The Architectural Review Board 21
(b) Purpose 21
(c) Conditions 21
(d) Procedures 22
(e) Guidelines and Standards 22
(f) Application of Guidelines and Standards 22
(g) Design Consultants 23
(h) Existing Violations of Declaration 23
(i) Exercise of Discretion 23
13 . Community Area 24
(a) Ownership 24
(b) Density of Use 24
(c) Obligations of the Corporation 24
(d) Easements of Enjoyment 24
(e) Extent of Easements 25
(f) Additional Rights of Use 26
(g) Damage or Destruction by Owner 26
(h) Conveyance of Title 26
14 . Easements 27
(a) Plat Easements 27
(i) Drainage Easements 27
(ii) Regulated Drain Easements 28
(iii) Sewer Easements 28
(iv) Utility Easements 28
(v) Entry Way Easements 28
(vi) Landscape Easements 28
(vii) Lake Access Easements 28
(viii) NonAccess Easements 29
(ix) Sidewalk Easements 29
(b) General Easement 29
(c) Public Health and Safety Easements 30
(d) Drainage Board Easement 30
-ii-
. 30
(e) Crossing Underground Easements • • • • • : : : : 30
(f) Declarant' s Easement•to Correct Drainage• 30
Water Retention • 31
(g) 1
� s Use During Construction • • • • . . 31
15. Declarant � 31
16. Enforcement • ' ' of the Corporation • • • . . . . 32
17 , Limitations on Rights •
18 . Approvals by Declarant . • • • . . . . . . . , , , 32
Mortgages • • • 32
19 . Corporation . • • • • . . . , • 32
(a) Notice to P 33
(b) Notices to Mortgagees ' . 33
(c) Notice of Unpaid Assessments • . , . . • ' 33
(d) Financial yStatementsees • • • • • ' ' ' ' . . . . 34
(e) payments by
Amendments • • • • 34
20. , . . . • • • • ' ' ' ' 34
�a) Generally • • • . . , , . . . . .
(b) By Declarant • • • . . . . . . . . . . . . . . . 34
(c) Effective Date • • • • . . . . . . . • , , , . . 34
21. Interpretation . • • • . . . . . . . . . . . . . . . . 35
22 . Duration . . . . . . • . . . . . . . . . . . . . . . . 35
23 . Severability • • •
24 . 35
NonLiability of Declarant 35
25. Annexation Declarant 35
Execution by
Exhibit A Description of Development Area
Exhibit B General Plan of Development
Exhibit C Description of the Tract
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DECLARATION OF COVENANTS AND RESTRICTIONS
ASHBROOKE
This Declaration, made as of day of , 1991,
by CARWINION ASSOCIATES, L.P. , an Indiana limited partnership,
("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 intends, but is
not obligated, to develop a residential subdivision to be known as
Ashbrooke.
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
Ashbrooke and for the maintenance of the Tract and the improvements
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
preservation of the values and amenities in Ashbrooke, 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 Assess-
ments and charges hereinafter created, and promoting the recre-
ation, health, safety and welfare of the Owners of Lots in
Ashbrooke.
E. Declarant has incorporated under the laws of the State
of Indiana a not-for-profit corporation known as Ashbrooke
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 attractiveness 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 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 any part or parts thereof.
A 1. Definitions. The following terms, as used in this
Declaration, unless the context clearly requires otherwise, shall
mean the following:
"Architectural Control Assessment" means the
Assessment levied by the Corporation pursuant to
Paragraph 11 (c) .
"Architectural Review Board" means that entity
established pursuant to Paragraph 12 of this
Declaration for the purposes therein stated.
"Articles" means the Articles of Incorporation
of the Corporation, as amended from time to time.
"Ashbrooke" means the name by which the Tract
shall be commonly known.
"Assessments" means all sums lawfully assessed
against the Members of the Corporation or as de-
clared by this Declaration, any Supplemental
Declaration, the Articles or the By-Laws.
"Board of Directors" means the governing body
of the Corporation.
"By-Laws" means the Code of By-Laws of the
Corporation, as amended from time to time.
"Community Area" means (i) the Drainage System,
(ii) A the Lake 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 more
than one Section, and (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.
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"Corporation" means Ashbrooke Homeowners
Association, Inc. , an Indiana not-for-profit
corporation, its successors and assigns.
"Declarant" means Carwinion Associates, L.P. ,
its successors and assigns to its interest in the
Tract other than Owners purchasing Lots or Residenc-
es by deed from Declarant (unless the conveyance
indicated an intent that the grantee assume the
rights and obligations of Declarant) .
"Development Area" means the land described in
Exhibit A.
"Drainage Board" means the Hamilton County,
Indiana 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 Off-Site Drainage Facil-
ities, and the other structures, fixtures, proper-
ties, 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.
"Entry Ways" means the structures constructed
as an entrance to Ashbrooke or a part thereof
(exclusive of the street pavement, curbs and
drainage structures and tiles) , the traffic island
depicted as Block "A" on the Plat of Section 1 of
Ashbrooke and any other traffic islands dividing a
roadway _providing access to Ashbrooke or a part
thereof, and the grassy area surrounding such struc-
tures.
"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.
"Landscape Easement" means a portion of a Lot
denoted on a Plat as an area to be landscaped and
maintained by the Corporation.
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"Lake" means any lake, a part of which is
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 desig-
nated by such number on the General Plan of
Development.
"Lake Access Easement" means the area designat-
ed on a Plat as a means of access to a Lake.
" " Lake Area" means that .ortion of a Lake
located within a Section and de.icted on the Plat
thereof.
"Lake Declaration" means that certain
Declaration of Covenants, Restrictions and
Maintenance Obligations executed by Declarant and
Shady Brook Development Co. relating to maintenance
of the Lakes which has been recorded in the Office
of the Recorder of Hamilton County, Indiana as
Instrument No. 91-11880 as the same ma be amended
from time to time.
"Lot" means a platted lot as shown on a Plat.
"Lot Development Plan" means (i) a site plan
prepared by a licensed engineer or architect, (ii)
foundation plan and proposed finished floor
elevations, (iii) building plans, including
elevation and floor plans, (iv) material plans and
specifications, (v) landscaping plan, and (vi) all
other data or information 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 Residence or other
structure or improvement thereon.
"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,
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.
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I
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.
"Mortgagee" means the holder of a first
mortgage on a Residence.
"Off-site Drainage Facilities" means those
portions of the Lakes and the other drainage facili-
ties located on the Shady Brook Land which are more
particularly described in the Lake Declaration.
"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.
"Part of the Development Area" means any part
of the Development Area not included in the Tract.
"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.
"Reserve for Replacements" means a fund estab-
lished and maintained by the Corporation to meet the
cost of periodic maintenance, repairs, renewal and
replacement of the Community Area.
"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 usual and incidental to the use of a
single family residential lot.
"Restrictions" means the covenants, conditions,
easements, charges, liens, restrictions, rules and
regulations and all other provisions set forth in
this Declaration, all applicable Supplemental Decla-
rations, the Register of Regulations and the Lake
Declaration, as the same may from time to time be
amended.
"Register of Regulations" means the document
containing rules, regulations, policies, and proce-
dures adopted by the Board of Directors or the
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I
Architectural Review Board, as the same may from
time to time be amended.
"Section" means that portion of the Development
Area that is depicted on a Plat.
"Shady Brook Land" means the land described in
Exhibit A to the Lake Declaration.
"Sidewalks" means the concrete or other
hard-surface walkwa s installed b Declarant within
the Sidewalk Easements established _on the Plats and
all rep];acements thereof.
"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 provisions for such Section as are
required or permitted by this Declaration.
"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.
"Zoning Authority" with respect to any action
means the Director of the Department of Community
Development 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.
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 Restric-
tions. 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, and also for itself, its heirs,
personal representatives, 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
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Restrictions to keep, observe, comply with and perform such
Restrictions 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 Declara-
tions with respect to the additional real estate and by filing 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
Supplemental Declaration.
4 . The Lakes. Declarant shall convey title to A the
Area to the Corporation. The Lakes shall be maintained as provided
in the Lake Declaration. The Maintenance Costs of the Lakes
allocable to the Corporation under the Lake Declaration shall be
assessed as a General Assessment against all Lots subject to
assessment. 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 constitutes 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. Owners may
use the Lakes only to the extent permitted by the Lake Declaration.
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 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. 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 (exclusive
of such portion thereof as is subject to the Lake Declaration,
including but not limited to the Off-site Drainage Facilities) in
good condition satisfactory for the purpose for which it was
constructed until the earlier of December 31, 1994, or 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
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Drainage System to the extent not maintained by the Drainage Board
or the Commercial Association (as defined in the Lake Declaration)
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 drainage system located entirely upon his Lot which is devoted
exclusively to drainage of his Lot and is not maintained by the
Drainage Board. Each Owner shall also have the maintenance
responsibility established in Paragraph 8 (1) .
6. Maintenance of Entry Ways and Landscape Easements. The
Corporation shall maintain the Entry Ways 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 shall be kept neatly cut, cultivated or trimmed as
reasonably required to maintain an attractive entrance to Ashbrooke
or a part thereof. 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. The
Corporation shall maintain all plantings within a Landscape
Easement installed by Declarant (exclusive of grass) and all
replacements thereof, and the Maintenance Costs thereof shall be
assessed as a General Assessment against all lots subject to
assessment. The Owner of each Lot subject to a Landscape Easement
shall cut the grass within such easement as required to maintain
the same in good and sightly condition.
7 . A Maintenance of Sidewalks. To the extent not
maintained by public authority, the Corporation shall maintain the
Sidewalks and shall replace the same as required to maintain the
appearance, utilit and safe use thereof. The Maintenance Costs
thereof shall be assessed as a General Assessment a•ainst all Lots
subject to assessment. The_Corporation may but shall not be
required, to contract for the removal of snow and ice from the
Sidewalks and the cost thereof shall be deemed a Maintenance Cost
to be included within the General Assessment which is assessed
against all Lots subject to assessment.
8 . Construction of Residences.
(a) Land Use. Lots may be used only for
residential purposes and only one Residence not to
exceed two and one-half stories or 25 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 bethereby a greater number of Residences in
Ashbrooke than the number of original Lots depicted
on the Plats. Notwithstanding any provision in the
applicable zoning ordinance to the contrary, no Lot
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may be used for any "Special Use" that is not
clearly incidental and necessary to single family
dwellings. No home occupation 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 permitted
to remain on any Lot advertising a permitted home
occupation.
(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 addition to the ground floor area
and thetotal 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
permanent, nor may any structure of a temporary
character be used as a dwelling.
(d) Building Location and Finished Floor
Elevation. 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, provided that the aggregate of side yard shall
not be less than twenty-five (25) feet unless
otherwise permitted by the Zoning Authority. 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 drainage plans shall be a prime requisite
for alternative finished floor elevations. Before
construction commences, the finished floor elevation
shall be physically checked on the Lot and certified
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by a licensed professional engineer or a licensed
land surveyor.
(e) Drivewa s.
All driveways shall be paved
and maintained dust free.
ights
re not
(f) Yard Lights. e
(f) If
theneachl Owner aor his
installed in Ashbrooke,
builder shall install and maintain a lightviin
n
operable condition on his at a style and tmanufacture
ion, h
a height and of a type,
, rior to
approved by the Architectural Review Board p
the installation thereof . Each such light fixture
shall also habReview Board of a mum to wattageinsure approveduniform
by Architecturalequipped with
illumination ectric ach cellot ora similarl device to insure
a photo el
automatic illumination from dusk to dawn each day.
(g)
Storacte Tanks. Any gas or oil storage
used used in connection ResidenceLot suchhthatbtheytare
buried or located view and comply
completely concealed from public
with all applicable legal requirements.
All
(h) Construction and Landscof hand otAer
construction upon, landscaping
in
improvement to a Lot shDevelopmentl be lPlan approvestrictld by
accordance with the Lot
the Architectural Review Board.
pproved by pine
ing
specified on the landscaping plan
aArchitectural Review Board shall be installed
plan
Lot strictly in accordance with such
app ovel plan
within thirty (30) days following lees to
of the Residencempl tion date. Board Unless a delay
ag
a later landscaping war, court injunction or acts
is caused by strikes,
of God, the Owner shall complete construction of any
Residence, construction of which is commenced upon a
Lot,
within one (1) year after the date of
commencement of the building process. If the Owner
fails to complete construction of a DResidence within
the time period specified herein,
ay:
(i) obtain injunctive relief to
force the Owner to complete construction
of such Residence in accordance with the
Lot Development Plan; or
(ii) pursue such of berremedies available tot
law or in equity as may
Declarant.
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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
approvedas to type, size and location by the
Architectural 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 Township Regional Waste District or a
successor public agency or public utility) shall be
installed or maintained 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. 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 company, 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, 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, "Drainage
Easements" reserved as drainage swales shall be
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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 Ashbrooke may be included in a
legal drain established by the Drainage Board. In
such event, each Lot in Ashbrooke 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 and
sump pump drains 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.
9 . 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.
(b) Signs. Except for such signs as Declarant
or any builder authorized by Declarant to construct
a Residence on a Lot may in their absolute
discretion display in connection with the
development of Ashbrooke and the sale of Lots and
Residences 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; provided,
however, that the foregoing Restrictions shall not
apply to any sign displayed on a Lot improved with a
Residence which promotes the candidacy of Persons
seeking election to public office if such sign is
not displayed for a period in excess of sixty (60)
days.
(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
-12-
planting is located on a Landscape 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 Landscape 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.
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
design standards for fences and further restrictions
with respect to fencing, including limitations on
(or prohibition of) the installation of fences in
the rear yard of a Lot and along the bank of any
Lake. All fences shall be kept in good repair. No
fence, wall, hedge or shrub planting 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 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 usedor maintained as a dumping ground for trash.
-13-
Rubbish, garbage or other waste shall be kept in
sanitary 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,
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 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 disturb adjoining Owners.
(h) Outside Burning. No trash, leaves, or
other materials shall be burned upon a Lot if smoke
therefrom 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
receiver 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 reception 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.
(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 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.
10. Ashbrooke Homeowners Association, Inc.
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(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 Corporation. The Class B membership
shall terminate upon the resignation of
the Class B member, when all of the Lots
in the Development Area (as depicted on
the General Plan of Development) have been
sold, or on December 31, 2001, whichever
first occurs.
(d) Voting and Other Rights of Members. The
voting and other rights of Members shall be as
specified in the Articles and By-Laws.
(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
-15-
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
mortgage 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 Paragraph 13 (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 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 up-keep of the Community Area; or
(vi) fail to maintain the Reserve for Replacements
in the amount required by this Declaration.
(g) Mergers. Upon a merger or consolidation
of another corporation with the Corporation, its
properties, 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 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 covenants and restrictions
established by this Declaration within the Tract
together with the covenants and restrictions
-16-
established upon any other properties as one scheme.
No other merger or consolidation, however, shall
effect 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 Paragraphs 14 (b) , 14 (f) , 15 or 20(b) .
11. 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, (2) Architectural Control
Assessments and (3) 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 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.
(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 and for
the improvement, maintenance and operation
of the Community Area.
(ii) Basis for Assessment.
(1) Lots Generally. Each
0 Lot owned by a Person other than
Declarant shall be assessed at a
-17-
uniform rate without regard to
whether a Residence has been
constructed 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 improved by the
construction thereon of
Residences which shall be
subject to assessment 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 Declarant) 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 meeting of such
members duly called for this
purpose.
(iii) 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
Assessment for each assessment year of the
Corporation at an amount sufficient to
meet the obligations imposed by this
Declaration and the Lake Declaration upon
the Corporation. The Board of Directors
shall establish the date(s) the General
Assessment shall become due, and the
manner in which it shall be paid.
(iv) Allocation of Assessment. The
cost of maintaining, operating, restoring
or replacing the Community Area has been
allocated 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
thereof. In determining the General
Assessment, costs and expenses which in
accordance with the provisions of this
Declaration are to be borne by all Owners
-18-
shall first be allocated to all Owners.
Costs and expenses which in accordance
with the provisions of this Declaration
are to be borne by the Owners of certain
Lots shall then be allocatedThe to the pr visions Owners
of such Lots.
of
subparagraph (ii) for uniform assessment
shall not be deemed to require that all
assessments against vacant Lots or Lots
improved with comparable types ea of
Residences be equal, but only
Lot be assessed uniformly with respect to
comparable Lots subject to assessment for
similar costs and expenses.
(c) Architectural Control Assessment. If any
Owner fails to comply with the requirements of the
s/ r the
first two sentences of Paragraph 8 (hf this )Declaration,
provisions of Paragraph lei aagainst the Lot owned
then the Corporation may
by such Owner an Assessment in an amount determined
by the Board of Directors which does not exceed the
greater of (i) One Hundred Dollars ($100. 00) for
each day that such failure continues
saraner wrt written
notice thereof is given by Five Thousand
Corporation to such Owner or Such (ii)Assessment shall
Dollars ($5, 000. 00) .
constitute a lien upon the Lot of such Owner and may
be enforced in the manner provided in subparagraph
(f) below. The levy of an Architectural Control
Assessment shall be in addition to, and not in lieu
of, any other remedies available to Declarant, the
Architectural Review Board or the Corporation, at
law or in equity in the case of the failure of an
Owner to comply with the provisions of this
Declaration.
(d) Special Assessment. 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
defraying, in whole or in part, the cost of any
construction, repair, or replacement of a capital
improvement upon the Community Area or the Off-site
Drainage Facilities, 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
haremvotie nguin
g in
person or by proxy at a meeting of
succalled for this purpose.
-19-
(e) Date of Commencement of Assessments. The
General Assessment shall commence with respect to
assessable Lots within a Section on the day the
first Lot in the Section is conveyed 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;
Remedies 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
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.
(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 Assessments 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
-20-
Corporation that the Assessments on a Lot have been
paid or that certain Assessments remain unpaid, as
the case may be.
(i) Annual Budctet. 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, all Supplemental Declarations and the
Lake Declaration will be met.
12 . Architectural Control.
(a) The Architectural Review Board. An
Architectural 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
improvements thereon in such manner as to preserve
and enhance values and to maintain a harmonious
relationship among structures, improvements and the
natural vegetation and topography.
(c) Conditions. Except as otherwise expressly
provided in this Declaration, no improvements,
alterations, 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 Residence, 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 respect thereto
shall be submitted to the Architectural Review
Board, and no building, fence, wall, Residence or
other structure shall be commenced, erected,
maintained, improved, altered, made or done, or any
plantings made, by any Person other than Declarant
without the prior written approval of the
Architectural Review Board of a Lot Development Plan
-21-
relating to such construction, 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 jurisdiction over
Ashbrooke, and no Owner shall undertake any
construction activity within Ashbrooke unless all
legal requirements have been satisfied. Each Owner
shall complete all improvements 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 notice of such plan
has been duly filed with the Architectural Review
Board in accordance with procedures 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 resulting 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.
(e) Guidelines and Standards. The
Architectural Review Board shall have the power to
establish and modify from time to time such written
architectural and landscaping design guidelines and
standards as it may deem appropriate to achieve the
purpose set forth in subparagraph (b) to the extent
that such design guidelines and standards are not in
conflict with the specific provisions of this
Declaration. Any such guideline or standard may be
appealed to the Board of Directors which may
terminate or modify such guideline or standard by a
two-thirds (2/3) vote of the Directors then serving.
(f) Application of Guidelines and Standards.
The Architectural Review Board shall apply the
guidelines and standards established pursuant to
subparagraph (e) in a fair, uniform and reasonable
manner consistent with the discretion inherent in
-22-
the design review process. In disapproving any Lot
Development Plan, the Architectural Review Board
shall furnish the applicant with specific reasons
for such disapproval and may suggest modifications
in such plan which would render the plan acceptable
to the Board if resubmitted.
(g) Design Consultants. The Architectural
Review Board may utilize the services of
architectural, engineering and other Persons
possessing design expertise and experience in
evaluating Lot Development Plans. No presumption of
any conflict of interest or impropriety shall be
drawn or assumed by virtue of the fact that any of
such consultants may, from time to time, represent
Persons filing Lot Development Plans with the
Architectural Review Board.
(h) Existing Violations of Declaration. The
Architectural Review Board shall not be required to
consider any Lot Development Plan submitted by an
Owner who is, at the time of submission of such Lot
Development Plan, in violation of the requirements
of the first two sentences of Paragraph 8 (h) and/or
the provisions of subparagraph (c) of this Paragraph
12 , unless such Owner submits to the Architectural
Review Board with such Lot Development Plan an
irrevocable agreement and undertaking (with such
surety as the Board may reasonably require) to
remove from the Owner' s Lot any improvements or
landscaping constructed and/or installed prior to
the submission of a Lot Development Plan (or
constructed and/or installed in violation of a
previously approved Lot Development Plan) to the
extent any such previously constructed and/or
installed improvement or landscaping is not
subsequently approved by the Architectural Review
Board. The Architectural Review Board shall have
the power to recommend to the Board of Directors
that the Corporation assess an Architectural Control
Assessment against any Owner who fails to comply
with the requirements of Paragraphs 8 or 12 . Under
no circumstances shall any action or inaction of the
Architectural Review Board be deemed to be
unreasonable, arbitrary or capricious if, at the
time of such decision, the Person having submitted a
Lot Development Plan for approval by the
Architectural Review Board has violated Paragraphs 8
or 12 of the Declaration and such violation remains
uncured.
-23-
(i) Exercise of Discretion. Declarant intends
that the members of the Architectural Review Board
exercise discretion in the performance of their
duties consistent with the provisions of
subparagraph (f) , and every Owner by the purchase of
a Lot shall be conclusively presumed to havee
consented to the exercise of discretion by
members. In any judicial proceeding challenging a
determination by the Architectural Review Board and
in any action initiated to enforce this Declaration
in which an abuse of discretion by the Architectural
Review Board is raised as a defense, abuse of
discretion may be established only if a reasonable
Person, weighing the evidence and drawing all
inferences in favor of the Board, could only
conclude that such determination constituted an
abuse of discretion.
13 . 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 agency, authority or utility for use as
roads, utilities, parks or other public purposes.
(b) Density of Use. Declarant expressly
disclaims any warranties or representations
regarding the density of use of the Community Area
or any facilities located thereon.
(c) Obligations of the Corporation. The
Corporation, subject to the rights of 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.
(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
Declaration, the Lake Declaration or any
Supplemental Declaration executed by Declarant.
-24-
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.
(e) Extent of Easements.
The
subject easements
tos the
of
enjoyment created hereby shall be
following:
(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 constituting a part of the
Community Area except that no fee shall be
charged to those specifically authorized
to use such facilities by this Declaration
or any Supplemental Declaration unless the
Corporation is specifically authorized to
do so by this Declaration or a
Supplemental Declaration;
(ii) the right of the Corporation to
suspend the right of an Owner and all
Persons whose right 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 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
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) or two-thirds (2/3)
of the Mortgagees (based on one vote for
each first mortgage owned) , voting in
-25-
person or by proxy at a regular meeting of
the Corporation or a meeting duly called
for this purpose;
(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 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 Section 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
facilities may use the Community Area and facilities
subject to such general regulations consistent with
the provisions of this Declaration, the Lake
Declaration and all Supplemental Declarations as may
be established from time to time by the Corporation
and included within the Register of Regulations.
(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 subsequently by the Corporation in the
discretion of the Corporation. An amount equal to
the costs incurred to effect such repairs shall be
assessed against such Owner as a Special Assessment
-26-
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
improvements thereon, but notwithstanding any
provision herein, the Declarant hereby covenants
that it shall convey to the Corporation each phase
of the Community Area to which it has retained
title, free and clear of all liens and financial
encumbrances, not later than two (2) years from the
date each such phase of the Community Area 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 (other than taxes
on the Lakes) until title is conveyed.
14 . 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,
Lots are subject to drainage easements, regulated
drain sewer easements, utility easements, entry way
easements, landscape easements, lake access
easements, non-access easements and " sidewalk
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:
(i) Drainage Easements (DE) are
created to provide paths and courses for
area and local storm drainage, either
overland or in adequate underground
conduit, to serve the needs of the Tract
and adjoining ground and/or public
drainage systems Under no circumstance
shall " any such easement be blocked in
any manner by the construction or
reconstruction of any improvement, nor
shall any grading restrict, in any manner,
the waterflow " over, through or under
such easement. Drainage Easements are
subject to construction or reconstruction
to any extent necessary to obtain adequate
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drainage within the Development Arm at
any time by any governmental authority
having jurisdiction over drainage, by
Declarant, and by the ^ Corporation, but
neither Declarant nor the ^ Corporation
shall have any duty to undertake any such
construction or reconstruction.
Drainage Easements are for the mutual use
and benefit of the ^ owners of the lots
and land intended to be served thereby.
(ii) Regulated Drain Easements (RD1
are Draina•e Easements created for the use
and benefit of the Draina.e Board as le•al
drains established in the manner
prescribed by law..
Sewer Easements (SE) are created
for the use of the local governmental
agency having jurisdiction over any storm
and sanitary waste disposal system which
may be designed to serve the Tract for the
purpose of installation and maintenance of
sewers that are a part of said system.
-14y1 Utility Easements (UE) 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.
^ (v1 Entry Way Easements (EWE) are
created for the use by Declarant, the
Architectural Review Board and the
Corporation for the installation,
operation and maintenance of the Entry
Ways.
-Iyil Landscape Easements (LE) are
created for the use by Declarant, the
Architectural Review Board and the
Corporation for the planting and
maintenance of trees, shrubs and other
plantings.
^ (vii) Lake Access Easements (LAE) are
created for the use of Declarant, the
Corporation, the Drainage Board and the
City of Carmel for the purpose of gaining
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access to the Lakes, the Drainage
Facilities and the Off-site Drainage
Facilities in the course of maintenance,
repair or replacement of any thereof.
' (viii) Non-Access Easements (NAE) are
created to preclude vehicular access from
certain Lots to abutting rights-of-way
across the land subject to such easements.
(ix) Sidewalk Easements (SWE) are
created for the use and benefit of the
general .ublic for the installation
maintenance and re•lacement of sidewalks
and the use thereof for pedestrian
traffic.
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 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 any Person who is
not an Owner by an instrument recorded in the Office
of the Recorder of Hamilton County, but a paved
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, egress, installation,
replacement, repair and maintenance of underground
utility and service lines and systems, including but
not limited to water, sewers, gas, telephones,
electricity, television, cable or communication
lines and systems. By virtue of this easement it
shall be expressly permissible for Declarant or the
providing utility or service company to install and
maintain facilities and equipment on the Tract and
to excavate for such purposes if Declarant or such
company restores the disturbed area as nearly as is
practicable to the condition 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
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to the conveyance of the first Lot in a Section 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 hereof. This
blanket easement shall in no way affect any other
recorded easements 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 constructed.
(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. " In addition to
the Regulated Drain Easements established on the
Plats, 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 and Lake Access Easements
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 buildings, patios, or other pavings, other
than crossings, driveways, walkways or Lake Access
Easements, 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 improvements 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
conveyance of the first Lot in a Section, Declarant
reserves 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
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appearance. 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 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 opinion of Declarant an
emergency exists which precludes such notice.
(g) Water Retention. The Owner of each Lot,
by acceptance of a deed thereto, consents to the
temporary storage (detention) of storm water within
the " Drainage Easements (DE) and Regulated Drain
Easements (RD) located on such Owner' s Lot.
15. 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
contractors 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 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, but without limiting the generality
thereof, a business office, storage area, construction yards,
signs, model Residences and sales offices.
16. 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 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 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 thereafter, or an estoppel of that Person to
assert any right available to him upon the occurrence, recurrence
or continuation of any violation or violations of the Restrictions.
In any action by Declarant, the Corporation or an Owner to enforce
this Declaration, such Person shall be entitled to recover all
costs of enforcement, including attorneys' fees, if it
substantially prevails in such action.
17 . 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.
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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.
18. Approvals by Declarant. As long as there is a Class B
member, the following actions shall require the prior approval of
Declarant: the addition of real estate to the Tract; dedication or
transfer of the Community Area; mergers and consolidations 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
assessment, the maximum General Assessment or the amount, use and
time of payment of the initial Assessment for the Community Center.
19 . 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 Mortgagee. A record of such
Mortgagee' s name and address shall be maintained by
the Secretary and any notice required to 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
Corporation has been provided notice under
subparagraph (a) above 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
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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) Any lapse, cancellation or
material modification of any
insurance policy or fidelity
bond maintained by the
Corporation;
(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 Residence 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 purchaser 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 for,
nor shall the Residence conveyed be subject to a
lien for, any unpaid Assessments in excess of the
amount set forth in such statement.
(dl) 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
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overdue premiums on hazard insurance policies or
secure new hazard insurance coverage for the
Communit:y Area in case of a lapse of a policy. A
Mortgagee making such payments shall be entitled to
immediate reimbursement from the Corporation.
20. 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 by Paragraph 18, (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, 2001. Such amendments shall be in writing,
executed by Declarant, and recorded with the
Recorder of Hamilton County, Indiana. No such
amendment, however, shall restrict or diminish in
any material respect the rights or increase or
expand in any material respect 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. Declarant shall give notice in writing
to such Owners and Mortgagees of any amendments.
Except to the extent authorized in Paragraph 14 (b) ,
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.
21. Interpretation. The underlined 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.
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22 . 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 January 1, 2020, at which time said covenants and
restrictions shall be automatically extended for successive periods
of ten (10) years, unless changed in whole or in part by vote of
those Persons who are then the Owners of a majority of the Lots in
the Tract.
23 . Severabilitv. 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.
24 . 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 and of the builder of such Residence and an Owner, by
an acceptance of a deed to a Lot, shall be deemed to agree to
indemnify and hold Declarant free and 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.
25. Annexation. Each Owner, by the acceptance of a deed to
a Lot in Ashbrooke, shall be deemed to have waived such Owner' s
right to remonstrate against annexation of all or any portion of
the Tract by the City of Carmel.
IN TESTIMONY WHEREOF, Declarant has executed this
Declaration as of the date set forth above.
CARWINION ASSOCIATES, L.P.
By
A George P. Sweet
General Manager
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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, the General
Manager of Carwinion Associates, L.P. , an Indiana limited
partnership, who acknowledged the execution of the above and
foregoing Declaration of Covenants and Restrictions for and on
behalf of said partnership pursuant to authority granted by its
Limited Partnership Agreement.
WITNESS my hand and Notarial Seal this day of
, 1991.
Notary Public Residing in
County
(printed signature)
My Commission Expires:
This instrument prepared by Tom Charles Huston, Attorney at Law,
1313 Merchants Bank Bldg. , 11 S. Meridian Street, Indianapolis,
Indiana 46204 .
TCH00346
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