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DECLARATION OF COVENANTS AND RESTRICTIONS
Ashbrooke
Carmel, Indiana
_ Recorded , 1991
Instrument No. 91—
Office of the Recorder of Hamilton
County
MARKED COPY
_ DATED: Q.ac-A ZS, V"1
For your convenience in
comparing this to the
prior draft, new material
is underscored and a
deletion is indicated by
a " A ".
BARNES & THORNBURG
DECLARATION OF COVENANTS AND RESTRICTIONS
ASHBROOKE
INDEX
— Page
1. Definitions 2
2 . Declaration 6
3 . Additions to the Tract 6
4 . The Lakes 7
5 . Drainage System 7
6 . Maintenance of Entry Ways and Landscape Easements 8
7 . [Intentionally Omitted. ] 8
8 . Construction of Residences 8
(a) Land Use 8 •
(b) Size of Residence 9
(c) Temporary Structures 9
(d) Building Location and Finished
Floor Elevation 9
(e) Driveways 9
(f) Yard Lights 9
(g) Storage Tanks 10
(h) Construction and Landscaping 10
(i) Mailboxes 10
(j ) Septic Systems 11
(k) Water Systems 11
(1) Drainage ii
9 . Maintenance of Lots 12
(a) Vehicle Parking 12
(b) Signs 12
(c) Fencing 12
(d) Vegetation 13
(e) Nuisances 13
(f) Garbage and Refuse Disposal 13
(g) Livestock and Poultry 13
(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 14
(b) Powers 14
_ (c) Classes of Members
(d) Voting and Other Rights of Members 15
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(e) Reserve for Replacement 15
(f) Limitations on Action by the Corporation 15
(g) Mergers 16
(h) Termination of Class B Membership 16
11. Assessments 17
(a) Creation of the Lien and Personal
Obligation of Assessments 17
(b) General Assessment 17
(i) 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 19
(g) Subordination of the Lien to Mortgages 20
(h) Certificates 20
(i) Annual Budget 20
12 . Architectural Control 20
(a) The Architectural Review Board 20
(b) Purpose 21
(c) Conditions 21
(d) Procedures 22
(e) Guidelines and Standards 22
(f) Application of Guidelines and Standards 22
(g) Design Consultants 22
(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 24
(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) Sewer Easements 27
(iii) Utility Easements 27
(iv) Entry Way Easements 28
(v) Landscape Easements 28
(vi) Lake Access Easements 28
(vii) Non-Access Easements 28
(b) General Easement 28
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(c) Public Health and Safety Easements 29
(d) Drainage Board Easement 29
(e) Crossing Underground Easements 29
(f) Declarant ' s Easement to Correct Drainage 30
(g) Water Retention 30
15 . Declarant ' s Use During Construction 30
16 . Enforcement 30
17. Limitations on Rights of the Corporation 31
18 . Approvals by Declarant 31
19 . Mortgages 31
(a) Notice to Corporation 31
(b) Notices to Mortgagees 32
_ (c) Notice of Unpaid Assessments 32
(d) Financial Statements 32
(e) Payments by Mortgagees 33
20 . Amendments 33
(a) Generally 33
(b) By Declarant 33
(c) Effective Date 33
21. Interpretation 33
22 . Duration 34
23 . Severability 34
24 . Non-Liability of Declarant 34
25 . Annexation 34
Execution by Declarant 34
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 in-
tends , but is not obligated, to develop a residential subdivi-
sion 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 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 Ashbrooke, to create an
agency to which may be delegated and assigned the powers of
owning, maintaining and administering the Community Area, ad-
ministering and enforcing the Restrictions, collecting and
disbursing the Assessments and charges hereinafter created, and
promoting the recreation, health, safety and welfare of the
r% 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,
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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:
"Architectural Control Assessment" means the
Assessment levied by the Corporation pursuant to Para-
graph 11(c) .
"Architectural Review Board" means that entity
established pursuant to Paragraph 12 of this Declara-
tion 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 declared
by this Declaration, any Supplemental Declaration, the
Articles or the By-Laws .
"Board of Directors" means the governing body of
the Corporation.
"Bv-Laws" means the Code of By-Laws of the Corpo-
ration, as amended from time to time.
"Community Area" means (i) the Drainage System,
(ii) such portions of the Lakes as are located in the
_ Development Area and the Lake Access Easements located
therein, (iii) the Entry Ways, (iv) any utility ser-
vice lines or facilities not maintained by a public
utility company or governmental agency that are lo-
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_ cated on, over or below or through more than one Sec-
tion, 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 ac-
- quired by the Corporation, together with all improve-
ments thereto, that are intended to be devoted to the
use or enjoyment of some, but not necessarily all, of
the Owners of Lots.
"Corporation" means Ashbrooke Homeowners Associa-
tion, 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 Residences by
deed from Declarant (unless the conveyance indicated
an intent that the grantee assume the rights and obli-
- gations 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 Facilities, and the other
structures, fixtures, properties, equipment and facil-
ities (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, if any, and the grassy
area surrounding such structures.
"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.
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"Landscape Easement" means a portion of a Lot
denoted on a Plat as an area to be landscaped and
maintained by the Corporation.
"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 desig-
nated Lake means the Lake so designated by such number
on the General Plan of Development.
"Lake Access Easement" means the area designated
— on a Plat as a means of access to a Lake.
"Lot" means a platted lot as shown on a Plat.
"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.
"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.
"Maintenance Costs" means all of the costs neces-
- sary 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, re-
pair, replacement of all or any part of any such
-' facility, payment of all insurance with respect there-
to, 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.
_ "Member" means a Class A or Class B member of the
Corporation and "Members" means Class A and Class B
members of the Corporation.
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"Mortgagee" means the holder of a first mortgage
on a Residence.
"Off-site Drainage Facilities" means those por-
- tions of the Lakes and the other drainage facilities
located on the Shady Brook Land which are more par-
ticularly 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 inter-
- est merely as security for the performance of an obli-
gation.
"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 exclu-
sively 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
I lot .
"Restrictions" means the covenants, conditions,
easements, charges, liens, restrictions, rules and
11 regulations and all other provisions set forth in this
Declaration, all applicable Supplemental Declarations,
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 Archi-
tectural Review Board, as the same may from time to
time be amended.
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"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.
"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.
-- "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, administra-
tive 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
_ 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
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
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i 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 Supplemental Declaration.
4 . The Lakes . Declarant shall convey title to such por-
tions of the Lakes as are located in the Development 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 condi-
tion. 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
/11 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 Drainage System _
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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 Drain-
- age System with respect to which Maintenance Costs are in-
curred. 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 the Landscape
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
Landscape Easement shall be kept neatly cut, cultivated or
trimmed as reasonably required to maintain an attractive en-
trance to Ashbrooke or a part thereof or a planting area within
Ashbrooke. 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.
7. [Intentionally Omitted. ]
8 . 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 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 be thereby a
-- greater number of Residences in Ashbrooke than the
number of original Lots depicted on the Plats . Not-
withstanding any provision in the applicable zoning
r 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.
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(b) Size of Residence. Except as otherw
provided herein, no residence may be constructed
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,
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 established 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 Archi-
tectural 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 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 Ashbrookq, then elimiedisillOolimmilit builder
shall install and maintain a light in operable condi-
tion on his Lot at a location, having a height and of
a type, style and manufacture approved by the Archi-
tectural Review Board prior to the installation there-
- of . Each such light fixture shall also have a bulb of
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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 simi-
lar device 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 ,and comply with all
applicable legal requirements.
(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 shall com-
plete construction of any Residence, construction of
which is commenced upon a Lot, within one (1) year
after the date of commencement of the building proc-
ess . If the Owner fails to complete construction of a
Residence within the time period specified herein,
Declarant may:
(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 other remedies at law
or in equity as may be available to Declar-
ant .
For the purposes of this subparagraph (h) , con-
struction 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 con-
formity with the Lot Development Plan.
(i) Mailboxes. All mailboxes installed upon
Lots shall be uniform and shall be of a type, color
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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.
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 Ashbrooke may
be included in a legal drain established by the Drain-
age 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
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affect materially the surface elevation or grade of
surrounding Lots . Perimeter foundation drains and sump
pump drainsshall 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 pub-
- lic 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 im-
proved 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 plant-
ing 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
-12-
000,04"'w*
be erec ► -d • ' flitcrmuled o any Lot without
approva ' he Architectural Review Board,
establi - � v:esign standards for fences al
restric • ons with respect to fencing, inc11
tations on (or prohibition of) the inst;
fences in the rear yard of a Lot and along
any Lake. All fences shall be kept in good repay_
— No fence, wall, hedge or shrub planting which ob-
structs sight lines at elevations between two (2) and
six (6) feet above the street shall be placed or per-
mitted to remain on any corner lot within the triangu-
- lar 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 dis-
tances of such intersections unless the foliage line
is maintained at sufficient height to prevent obstruc-
-` tion 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 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
-13-
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 .
(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.
10 . Ashbrooke 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
-14-
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, 2001, 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 .
-- (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
-15-
the Owners may not: (i) except as authorized by Para-
graph 13 (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.
(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 14 (b) ,
14(f) , 15 or 20(b) .
-16-
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 Corpora-
tion 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 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.
-17-
I
I
(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 Declar-
ant) 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) 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 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
11 paid.
(iv) Allocation of Assessment. The
cost of maintaining, operating, restoring or
replacing the Community Area has been allo-
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,
11 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
11 subject to assessment for similar costs and
expenses .
-18-
11
(c) Architectural Control Assessment. If any
Owner fails to comply with the requirements of the
first two sentences of Paragraph 8(h) and/or the pro-
visions of Paragraph 12(c) of this Declaration, then
the Corporation may levy against the Lot owned by such
Owner an Assessment in an amount determined by the
Board of Directors which does not exceed the greater
of (i) One Hundred Dollars ($100 . 00) for each day that
/I such failure continues after written notice thereof is
given by Declarant or the Corporation to such Owner or
(ii) Five Thousand Dollars ($5, 000. 00) . Such Assess-
!! ment shall 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 Declara-
tion.
(d) Special Assessment . The Corporation may
levy in any fiscal year a Special Assessment appli-
cable 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 or the Off-site Drainage Facili-
- ties , including fixtures and personal property re-
lating 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.
(e) Date of Commencement of Assessments . The
General Assessment shall commence with respect to
assessable Lots within a Section on the, ,day theA.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; 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
-19-
from the due date at a percentage rate no greater than
I 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
/I 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
I 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.
(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 Declara-
tion, all Supplemental Declarations and the Lake
Declaration will be met.
12 . Architectural Control .
(a) The Architectural Review Board. An Archi-
tectural Review Board consisting of three (3) or more
PI
-20-
h
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-
n 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
11 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-
fl 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
jurisdiction over Ashbrooke, and no Owner shall under-
take any construction activity within Ashbrooke unless
all legal requirements have been satisfied. Each
Owner shall complete all improvements to a Lot strict-
ly 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.
-21-
(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 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.
(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 Direc-
tors then serving.
(f) Application of Guidelines and Standards .
The Architectural Review Board shall apply the guide-
lines and standards established pursuant to subpara-
graph (e) in a fair, uniform and reasonable manner
consistent with the discretion inherent in 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 Re-
view Board may utilize the services of architectural,
engineering and other Persons possessing design exper-
tise 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.
-22-
(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 con-
structed 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 re-
quirements of Paragraphs 8 or 12 . Under no circum-
stances shall any action or inaction of the Architec-
tural Review Board be deemed to be unreasonable, arbi-
- trary 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 vio-
lated Paragraphs 8 or 12 of the Declaration and such
violation remains uncured.
(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 have consented to the exer-
cise of discretion by such members . In any judicial
proceeding challenging a determination by the Archi-
tectural Review Board and in any action initiated to
enforce this Declaration in which an abuse of discre-
tion 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.
I
M
-23-
13 . 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 •
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, the Lake Declaration or any Supplemental Decla-
-
ration executed by Declarant. Such rights and ease-
ments as are thus granted shall be appurtenant to and
shall pass with the title to every Lot for whose bene-
- fit they are granted.
(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
-24-
Declaration unless the Corporation is spe-
-
cifically authorized to do so by this Decla-
ration 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 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 Com-
munity 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 re-
- corded; and
-25-
(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
to such general regulations consistent with the provi-
sions 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 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 to the Corporation each phase of the Community
Area to which it has retained title, free and clear of
all liens and financial encumbrance not later than
two (2) years from the date each such phase of the
Community Area,Vis 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.
-26-
14 . 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, landscape easements, lake access ease-
ments 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 util-
ity companies and governmental agencies as follows:
-- (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 the Tract 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 the Tract 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-
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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) Landscape Easements (LE) are
created for the use by Declarant, the Archi-
- 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 City of
Carmel for the purpose of gaining access to
the Lakes, the Drainage Facilities and the
Off-site Drainage Facilities 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 util-
ity easement if such structure would interfere with
the utilization of such easement for the purpose in-
tended 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 in-
strument 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
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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
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 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,
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patios, or other pavings, other than crossings, drive-
- ways, 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 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
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 De-
clarant an emergency exists which precludes such
notice.
(g) Water Retention. The Owner of each Lot, by
acceptance of a deed thereto, consents to the tempo-
rary storage (detention) of storm water within the
drainage easements (DE) 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 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 De-
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 . 4..r
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 dam-
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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. In any action
by Declarant, the Corporation or an Owner to enforce this
beclaration, 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 Gen-
eral 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.
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; 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 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 Mort-
gagee. 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
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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 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 main-
tained 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 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
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.
(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.
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I
I
(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 coverage for the
Community Area in case of a lapse of a policy. A Mortgagee
making such payments shall be entitled to immediate reim-
bursement 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 authori-
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 18, (ii) Declarant.
(b) By Declarant . Declarant hereby reserves the
right unilaterally to amend and revise the standards, cove-
nants 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 Decla-
- ration 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 Re-
corder 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.
I
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i
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 claim-
- ing under them until January 1, 2020, at which time said cove-
nants 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 . Severability. Every one of the Restrictions is hereby
-� declared to be independent of, and severable from, the rest of
the Restrictions and of and from every other one of the Re-
strictions, and of and from every combination of the Restric-
tions . 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 Resi-
dence 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 de-
scribed in such deed. Declarant shall have no duties, obliga-
tions 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 Declara-
tion as of the date set forth above.
CARWINION ASSOCIATES, L.P.
By
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 limi-
ted 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 :
0290w
This instrument prepared by Tom Charles Huston, Attorney at Law,
1313 Merchants Bank Bldg. , 11 S. Meridian Street, Indianapolis,
Indiana 46204 .
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