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HomeMy WebLinkAboutCovenants and Restrictions DECLARATION OF COVENANTS AND_RESTRICTIONS W I NDEMERE This Declaration . made as of t;-ee da•r of 1994 . by Windemere CQr-B tion .ora __ __ -_ ( "Declarant" ) an Indiana CQrBQrdt]On . WITNESSETH : WHEREAS. the following facts are true: A. Declarant is the owner of the real estate located in Hamilton County. Indiana. described in Exhibit A. upon a portion of which Declarant intends ___.--_-_-- to develop a residential Subdi,..isior, to be known as Windemere. Sections:QnS• T .r s, as "Windemere" fir . `le, raf5r r d to �tcrcir, B. Declarant has - : or will l const1 Duct certain imnrovems,nfs and amenities which shall constitute Community Area . C. Declarant ant 1 r desires to provide for rese. enhancementthethe p. _ c> nation and of property values, amenities and opportunities in Windemere and for the maintenance of the T ac+ thereon . r_._ i and the improvementsand to this end desires t,z covenant=. subject the Tr-act to the 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 ownersthereof . hereD# . D. Declarant deems it desirable. values and the efficient Preservation of the val and amenities in W2ndemere to create an aaencv to which may be delegated and assigned the powers of owning .and administering the Community Area . administering and enforcing the Restrictions . collecting and disbursing the Assessments and charges hereinafter created . and promoting the health. safety and welfare of the Owners of tots E . Declarant has incorporated known under the laws of tete. State of Indiana a not-for-Profit corporation i;n , oa_ Windemere Homeowners Association Inc . for the purpose ofe..;e rcis2ng such functions . NOW. THEREFORE. Declarant and the C.onsentina Owners hereby declare that all of the Lots and lands in the Tract . as they are held and shall be held conveyed . hypothecated or encumbered . I ea=.ed . rented . j= . usd . occupied cupiedt-{ and improved . are subject to the following Restrictions, all furtheranceof a Plan of which are declared tc, be in an for the improvement and sale of Lots of=. in t,-;.� and are established and agreed upon� for the purpose of enhancing and profe�ti ng the value. desirability and nd attYac+i•attractivenessof the Tract as a whole and of each of Residences.e='. Lots and lands2tuateo thereint., The Restrictions shall runwith + shall be binding_ upon Declarant , �t he land and s5ign r, its respective successors and s , a• d upon the parties having or acouiring any interest in the Tract or- any part or carts thereof sub?est to such Restrictions. The Restrictions shall inure to the benefit of Declarant and its respective st_i^racsor-=- in title to the Tract or any Hart or parts thereof . 1 . Definitions. The following terms . as used in this Declaration . unless the context clearly reouires otherwise. shall mean the following ( a ) "Architectural Review Board" means that entity established pursuant to Paraaraph 12 of this Declaration for the purposes therein stated . ( b) "Articles" means the Articles of incorporation of the Corporation , as amended from time to time. (c ) "Assessments" means all sums lawfully assessed against the Members of the Corporation or a,=, declared by this Declaration . the Articles or the By-Laws . i Corooration "Board of Directors" means the aovernirra body of the Corooration elected by the Members in accordance with the By- LaLis . By-Laws" means the Code of By-Laws a;vs of the Corporation. as amended from time to time. f ) "Windemere" means . the name by which the Tract shall be known . a ) "Community area means ( i ) the Lake Control Structure ( ii ) :'tha ii Drainage B stem; . i iii ' t``;_ t ai<esan Access casements, ( iv ) the Entry d tit��a'r S . ' '•;` .? t�"r e Roadway�. to the h e extent not maintained by public authority;' . ( vi ) any service lines or facilities not maintained by a Public utility company or governmental aaen y, that hat serve more than one Lot . and (vii ) any area of land ( 1 ) shown on the Plat . ( 2 ) described in any recorded instrument Prepared by Declarant or its agents. or r3) conveyed to or acquired by the Corporation . . together with all improvements there}fl, that t are intended to be devoted to the use or enjoyment of some. butt necessar"i l . all . of the Owners ofLot=, . nfl ( h) "Corporation" means wi ndemere HflmeQLVnci`.,rc Association . Inc . . an Indiana not-for-profit p 3t CCtrnCratlfln, its c, r raccors and assigns. ( i ) "Declarant" means WinL-emere Corporation . +c succsssor e end ass igns to its interest in 1 a - the Tract other than Owners. nurcha=.ing Lots or Residences by deed from Declarant ( unless the conveyance indicated an intenttrt�. �at the ,e grantee assume the rights and oblioatio- of Declarant ) . ( i ) "Drainace Board" means the Hamilton tor, County . Indiana Drainage Board. its successors or assigns. ( k ) "Drainace System" means the open drainage ditches and swales. the subsurface drainace tiles. pipes and structures. the dry and wet retention and/or detention areas. and the other structures, fixtures , properties. ecuipment and facilities (excludine the Lakes and the Lake Control Structures ) located in the Tract and lesioned for the ourpose of controlling, retaining or expeditinc the drainace of surface and subsurface waters from. over and across the Tract , including but not limited to those shown or referred to on the Flat . all or part of which may he established as legal drains subject to the jurisdiction of yr ; the P. a,nace Board . I ) "Entry Ways" means the structures constructed as an entrance to Windemere or a part thereof u ; exc s l _ive of the street structurepa;'ement, r- curbs and drainaae stuc _ tec _ and tiles ? . the traffic island . if any' . and the arassy area =.ur-roundina such structures . whether located within or without the Tract . ( m ) " Initial Capital Assessment" means the o In..i+Ial assessment for the Reserve for o j p R�p. acements r-cp�.tir-cd byaragraoh 11 ( e) . (n ) "Landscaping Easement" means a portion of a Lot denoted on the Flat as an area to be landscaped and maintained by the Corporation . ( o) "Lake" means any lake as depicted on the Flat and "Lakes" means all such lakes. A numerically desionated Lake means the Lake so designated by such number on the Plat . ( p) "Lake Access Easement" means an area designated on the Flat as a means of access to a Lake or a Lake Control Structure. ( a ) "Lake Control Structures" means the structure. out- fails. pipes and appurtenances associated 2at��, therewith ere4V2t;1 Cir intreoal thereto. includina but not limited to th. the ose depicted on Plat . all or part of which may be established as a leaal drain subject to the jurisdiction of the L'.r a2nage Board . ( r ) "Lot" means a platted lot as shown on the Plat . ( ,=. ) "Lot Development alp merit Flan" means ( i ) a site plan prepared by a licensed enaineer or architect . ( i } foundation . t rundat2Qn p1 a n and proposed finidfloor shel va IVa+2Qnc . 2211 but ? di.-,r, clans . includina elevation and floor plans , ( i., ) material plans andspecific at2Cn ., vj i lan ds.ran- ne plan and ( vi ) all other data or information that the he ?=?rCh2teCtL:?-aI Review Board may repuest with resect to the improvement ! t - - or alteration of a Lot ( including but not limited to the o ;_ an.dscapinc thereof ) or the con==struction or alteration of a Residence or other structure or improvement thereon . ( t ) "Maintenance Costs" means all of the costs necessary to keep the facilities to which the term applies and in i-� operational 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 richt-of-way . and other expense related to the continuous mainton enance, operation or improvement of the facility . ( u ) "Member" means a Class A or Class B member of the Corporation and "Members." means Class A and ?.l ass B member= of the Corporation . ( v ) �"Mortganee"' means the holder' of a first mor to- ace on a Residence. ( w) "Owner-'" means a Person , including Declarant , who at the time has or is accuirino any interest in a 'Lot except a Person who has or is acquiring such an interest merely as security for the performance of an, ti Crhl ,ga QR . "Person"ix ) Person means an individual , firm. core>-atioR . Partnership. association , trust or other local entity . or any combination thereof . ( v ) "Plat" means the final =econdary plat of +he Tract recorder) in the Cffi-a of t}? Indiana . ( _ ) "Reserve for Replacement=" mean= a fund established and maintained by the Cor , periodic Corporation to meet the co=t of er-i. C maintenance. repairs, renewal and replacement the L nit Area , of Community ( aa) "Residence" means any structure intended exclusively for f .r occupanc ' by a single family tng=tH5r with all aoourtenances thereto, includinc privet= oar-ace an outbuildincs and recreational facilities usual and incidental to the use of a single family residential lot . ( hh) "Restrictions" mean= the covenants . conditions . easement=. Charge= liens , restrictions. it 1 rules and r-ag":l t c and L� l other provisions set forth in this Declaration 1 th and the Register of Regulations, a= the same may from time to time be amended . . 4 ( cc ) "Register of Regulations" mean=. the CC7!?t�ini,-t > documente rules. reo'ulations. r p021�ies �, and procedures adopted by the Board of Directors or the Architectural Review Board . as the same may from time to time be amended . ( dd ) "Roadway" means all or any part of a street . land or road ( including the right-of-way) designed to provide access to one or more Lotso' foe which has not been accepted for maintenance by a public authority . ( ee) "Tract" means the land described in Exhibit A. ( ff ) "ZOt-r3.nG fYUthOri}',." with respect - -__ to an•s action means the Carmel gni na n.. Commissioner or, where he lacks the caoacitv to take action or fails to take such action . the ac'•rernmentai body or bodies. administrati e .-i cr judicial . in which authority is vested under acclicable law to hear appeals from, or review the action . or the failure to act, of the buildi. e commissioner . tract 2. Dec ara . ion . Declarant hereby e.'r,Dress s y declares that the shalle held . transferred . and occupied Restrictions. The Owner of subject to the any Lot subject to these Restrictions by ( i ) acceptance of a deed convevino title thereto, or the execution of a contract for the purchasethe. eD .r f Pec l aran,t or a subsea 'e Owner - whether from n t of such Lot . or ( ii ) by the act of occupancy any Lot . shall accept such deed and execute such subject to each Restriction and contained . auree;rten} hereinBy acceptance of such deed or execution of such contract . each Owner acknowledoes the !-i�hts of Declarant and of and po�..larc Ye=tYiCtions . the Cor pD!-at1Dn withrecr-toCt to t1'1e=c. and also for itself its representatives . • heirsnarc-.J`-.at successors and assian=. covenant= . agrees and consents to and with Declarant . the Corporation , and the Owner-= and subseouent Owners of each of theots Restrictionstoat�rected by these to keep, observe. Compl V with and perform such Restrictions and agreement . 3. The Lakes. Declarant shall convey title to the Lake= to the Corporation . The Corporation shall be respon 1 maintaining the Lakes. T ib_e for he Maintenance Co=ts of the Lakes shall be assessed as a General Assessment against all Lot= subject to assessment which abut a Lake. Each Owner of a Lot which 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 cart of . or abuts . his lot and shall kOep that portion of a Lake abuttinc his Lot free of debris and otherwise No Owner shall +� Water out �LSe }in reasonably clean condition . L��`ma wa ner�titted z:cOn any cart of a take �anV�eoLake. fan �-=e_=.ts shall be structure may he ,==xtended dock . pier . wall or other stru.an} of the Architectural into a Lake without the prior written A. hitectural Review Board and such co'vernmenta1 authority as may have jurisdiction tbereo?'er . No swi^t?tino will be Permitted in a Lake except if and to the exte } Board of L?i rectors_ Each Owner- of a Lot abutting a ! indemnify and hold harmless Declarant . e aan =hall other Owner ,-, t!-+-- CDrcrDratiDn and eac+, aoejnst all lo=s or damagei.,cr,-n u r intD any` Person or damaoe to ed as a result of any Property . or as a result of any other cause or thing , arising from or related to access to. a Lake b'd• an„ �' uSe Df or Person who gains access thereto from. over or across such Owner ' s Lot .o_ . Declarant shall have no liability to any Person with respect to the Lake=. theu= thereto. or with respect .e titer-aD-k C;r- 3CCe5� to any damaoe to any Lo Lake or the proximity of , t re=.ultiny from a a -D,. .� thereto. inclz:dir,g loss or damage fromkrD53 on . 4 . The Lake tControl Structure Declarant =hall conve'J title to the LControl �'ir��i- ake tures to t-a rDrD r rshalatiDn . 1 -= _v GrPDr=tiD i be responsible for maltta_-iD the Lake Control Structure= to extent not maintained by the D rc3 -c^c � P v-rd an-ti *h= Maintenance cjaIntenanCe costs thereof shallbe assessed as a !4arral C sjraaainsyall Lots subject to assessment as follows:( 2>; ) of such Maintenance Costs s ha l ! be allocated amonge L ortt =subiect toas es marafor maintenance of 1akes as orny;dd insaragrapn 3. and one-third of such Maintenance r,-,t.= =hall be C} Decated among Lotsnot subject }Du5=es=meat for Tai-`aranC=the takec nf 5. Drainage System. Declarant shall Svste inmaintain the Drainage mgood condition satisfactory for } was constructed until theearlier of Decembere it�rj90 se tcr- which ito u til earl e f the Drainage System � i 1`� � or the date Drain e y tem is accepted as a legal drain by the Drainage Board . After the earlier of such dates. tne rDrp oration shall the Lrain ne System to the extent not maintained by } reDginaga Board and the Maintenance !pet- thereof shall be assessed against all Lots subject to assessment serviced by that Dart r-,f the Drainage System with respect to : incurred . Each which Maintenance Costs Owner shall l be L^_s•. are ate _ individually liable for the cost :_t* maintenance of any dr ' ainage system L m located entire: ,r. �� which is devoted ==xclu=~ relyup . . his Lot - to drainage of h maintained by the Draira pe Board . 3= i and is not b . Maintenance of Entry Ways and Landscaping Easements . The GorpDratiDn =hall maintainby t n t r Ways and the �e r � :d. Landscaping _a me t t5 andall improvements and Plantings 3 n. Y anti: S ti;c?-a Maintenance Costs thereof shall% be •� 1'nt . and the a tassessed as a General Assessment against all Lots subject to accaccment . Grass vtree5 shrubs and other Plantintos located on an Entry Way or shallshall be kept rteatl 'J cut . a Landscaping Easement ed to maintaincu cultivated or trimmed as reasonably an attrar-i-i'., e t�"ta ra v.t ^J c n(tr grace to :A1in�?e'mere. Jr a part or a planta area within Windemere All located on Entry Way shall be maintained at l l times nce � god. a'-+'� 53Dhi�ly� conditionappropriate ••, t �-1!Ti�'S Drat OC'=^� to a first-class rem ori . .t 7. Roadways. Declarant shall maintain each Roadway'a't' incoed condition satisfactory for the puroos� for which it was constructed until the roadway has been accepted as a public roadway. landscaping within the road right ofvl way is subject to the approvaal of the Hamilton County Highway Engineer and/or the City of Carmel Engineer if Windemere is annexed . S. Construction of Residences. ( a) Land Use. Lots may be used only for single-family residential purposes and only one Residence not to exceed two and one-half stories or 35 feet in height measured from finish grade to the underside of the eave 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 Windermere than the number of original Lots depicted on the Plat. Notwithstanding any provision in the applicable coning ordinance to the contrary, Lot may be used for any "Special Use" that not e. no incidental and necessary to single family tdwellin s clearly occupation shall be conducted or maintained on any Lot No home one which does not constitute a "s other than incidental to a business, pedal use" and which is 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 =_.ions of any nature, kind or description shall be erected . placed , or mi to remain on any Lot advertising a permitted home opeccupatiotted on . ( b) Size of Residence. Except as otherwise provided herein . no residence may be constructed on any Lot unless such Residence. exclusive of open porches, attachedt . sll garages and basements shall have a ground floor area of -.0f 0 s . structs - . .r..� quare fest if a one-story u re, or i t^�i� one-� o, .6 0 souare feet if a higher structure b3ut in thte. case of a buildina higher than onestory. , ar�y. there must also be at least eoo souare feet in addition to the around floor area and total floor area shall not be less than 3.00 the . �.� souare feet . (c ) Temporary Structures. No trailer, shack , basement. garage or other out tent • boat. buildina may be used at any time as a dwe l l ing . temcorar•y or permanent. nor may any structure of a temporary character be used ;as a dwel 1�.r-t g . (d ) Suildino Location and Finished Floor Elevation . No buildina may be erected between the buildina line shown on the 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 ( LC ) feet t to any rear Lot line. The side yards agae thirty ( 30) feet . No accessory buildina may be erected in front of a main building or in therequired D 3 , on the side of r�gs_red front yard a cornerlot unless the r�r"'-ac cGr•,� buildina is attached to the main building by a common wall . A mi , floor elevation . shown on the development plan n- tum finis _ for Windemere. hhas . 7 i been established for each Lot depic floor eleyatien with the exception ted on the Plat and no finished shall beel constructed of flood protected basements d lower than said minimum without the written consent of the Architectural adequate storm water Review Board. �i drainage in conformity Demonstration nd overall project drainage plans with both on-Lot ar;d alternative finished floor shall be a prise requisite for oo. elevations. Before c commences. the finished floor elevationonsirhecked on the Lot and certified by a licensed shall be physically checked tensed professional engineer or a licensed land surveyor. (e) Driveways. All driveways Ars, dust free. all be paved and maintained ( # ) Yard Lights. If streets lights are not installed in Windemere. then the Declarant and the builder o install a yard light in operable co n each Lot shall location. having a height and # a Rditicn on such Lot at a c, approved by the ArchitecturaltReviewype. style and manufacture nstallation thereof . Each such l ht Board prior to the ibulb of a maximumapproved shall also wattage approed by have toa ` Insure uniform illumination on each Architectural Review Board a photo electric � ah r of and shall be eg�:ipped withcel orsimilar device to insure automatic illumination from dusk to dawn each day. The ,-ard light thereafter shall be maintained in proper working order by the Lot Owner . (g ) Storage Tanks. Any gas or oil storage tanks used in connection with a Lot shall be ried or Residence such that they are completely eco cr ealed fro located in a m public view. ( h) Construction and Landscaoino, All construction upon , landscaping of and other improvement strictlyi with the to a Lot shall be completed n accord -�cnc�ehe Lot Development Plan approved by. the Architectural Review Board . All landscaping specified on the plan approved by the Architectural Review Board shall be installed on the Lot strictl•v in accordance with such approved Plan within 0 days #ollowina substantial completion of the Residence unless the Board agree= tolater a landscapina completion or acts noGod a del y Ownes r caused by strikes, war. court injunction the Owner oTLot se any c_ which on the date of purchase is not improved with h a Residence shall commence constructionof Residence upon the LotJ• r�..- a within two `- (2) 'year= from the date the Owner I. acquired title thereto and shall complete construction of such Residence +within one ( 1 ) year after building prate=_s. but in no event the } date of commencement of the l a lerthan the three date the Owner aceuired title ( 3 ) years after le to the Lot unless such Lot is to a Lot upon which the Owner has constructed a Residence in which such Owner permanently' resides. If the Owner e'.`- faiIs iCj commence or complete construction of a Residence within the time periods specified herein . , or if the Owner should . without�eClar3^t ' s written approval , sell . contract to sellCGn ;e; or flt "errica di=pgseot or attempt to seal , convey or otherwise dispose of . the Lot before coo Reelr,-_tsrice ontheDiodon of constrt.;ctlon of Lct , then . in any nf curl a e'yents , L'eCiarant ma - ''•. . til re-enter the lot and dive=st the Owner of title thereto by tentderin to the Owner or to the Clerk of the Circuit Court of. Hamilton County the net d 1 1 1=,===r of t i .it�?e same o ar amount as V was received be Declarant from such Owner as consideration for the con•:eyance be Dec i arant of the Lot together with such actual costs. . Provei-r i f any. as the Owner may s have been incurred in connection with the commencement of construction o � i21 the of a Residence onrhe Lot and then fair market value of the erag 1nG' trtwo ? �' iappraisals t3-te of L.1 as determined �.?�; made b, appoin tcerl '1C; _' oua I i f led appraisers e the JudCe of the -k �uoerior Court. arrflatonLunt+. Circuit or ✓n ( ii ) obtain injunctive relief to force the Owner to oceed with construction of any residence. a Lot been Plan for which hasDevelopment approved by the Architectural Review Board upon application by such Owner : or ( iii )pursue such other Yemedies at law or in eauit`,: as may be available to Declarant . The failure of the Owner of a Lot to apnl., for approval of . or receive approval from. + Development Plan the Architectural Review O shall Board of a Lot t not relieve such Owner from his commence and complete o. pILZ igat2pn t n ` to construction of a Residence upon the Lot within the time periods Specified here + st_tb-p •- in- For "f";a p;_irppcec of thiss. agraph th} . construction ofRe "completed" a Residence will be daamE,r! " completed" then the exterior of the Residence ( including but not to founder cr 1c?1 . wall=. top* >.yind�fy�. a gutters. ntr'y �r-�r `-' .-S, dot` cp i � dL.�: S . downspouts .ts . exterior trim. paved driveway and 1 andscaolna ) has been completed in conformity with the Lot Development Plan . ( i ) !°�ailbo> All mailboxes installed upon Lots shall be uniform and shall be of a type, color and manufacture approved be the Architectural Review Board . Such mailboxes shall be installed upon posts approved as to type. size and Architectural Review Baord ocation by the . tjl Septic Systems . No septic tank . absorption field or any other on-site sewage disposal system em " other than a lateral connected to a sanitary, wage collectiona rel main by sat i Clay system operated Claor y`�13nshc iplReaional Waste District or a successor public agency utility) shallbe installed or maintained on any Lot . ( k ) Water Systems . No private c �,;:�t `,o ?ccat c-t - ore;-tl-pr-lt-'ate :`_ester =unp1 ear may e upon any Lot re�ul3tipnc. edt_. which is not in compliance with pr oroC State ' �rec adopted or established by the Board o* Hea, tb o - Indiana ptre> civil jurisdiction . To the extent that water authority a, iri domestiwater Ce,_. . ,ce is 9 available from a water line located within 700 feet of the lot maintained by a public or _ line private utility company. each Owner =.hall connect to such water line ! to provide water f� of and shall pay all connect •r domestic a=.e on th,L ion , availability or mth r- Char c er lawfully established with respect to oeconnection= thereto. Notwithstanding the foregoing . an Owner may establish. maintain and use an irrigation water well on his Lot ( I ) Drainage. In the event storm water drainage from any Lot or Lots flows across another Lot . provision =hall a,..e Owner of such Lot to Permit such a� be m � by the uch drainace to continue, without restriction or reduction , across the downstream Lot and into the natural drainage channel or course, although no spe if easement ..Tic drainage for Scs;_tch flow of water is provided on the Plat C the extent not maintained by the Drainage Board "D reserved + rainage Easements"reser as drainage swales shall be r - maintained by the Owner of Lot upon which such easethe mems are located such that water from any adjacent Lot shall have adequate drainage along such swale. Lots within Windemere may be included the Drainage in a legal drain established by Board. In such event each Lot in Windemere will subject tp as=escment by he-E be maintenance o Drainage Board for the co=ts of # the portion of the Drainage System and the Lake Control Structures included in � t such lecal drain , which assessment will be a lien against the we chanced s Lot . The elevation of a Lot shall not Q as to affect materially the surface elevation or orade of surrounding Lots . Perimeter er ' foundation drains, doo-uns ,+ drains, sumo pump you s and water ssofteners. shall be r c, connected whenever feasible into a subsurface drainage tile. Downspouts and drains shall be desioned to disperse runoff for r swale C ? - p`� over land flow to street or o_ lection systems. Each Owner shall maintain the subsurface drains and tile= located on hi= Lot and shall be i cost of i able for the all repair=, thereto or replacements thereof . Cm) Vacant Lots. Declarant and the Corporation =hall have figh t�"t� r t tQ mow the lawn and maintain vacant lots . ''• Maintenance of Lots. ( a ) Vehicle Parking . No camper motor home, truck . trailer . boat or disabled vehicle may . ,r �e parker or Stored overnight or longer on any Lot in open public view. abSplute Signs. Except for such signs as Declarant may in its discretion display in connection with the development of Windemere and the sale of Lot=. therein and such slams as may be located in the Community 1 Are.a. no sign of any kind shall be displayed to the public i view on any Lot except mor-e t!-:an fL"r (4 ) =aware that one Sion of not feet may be di= aye e�:rec,se of ad`. �, p:l d at ar:':J time for- t;.;=. '-tisino the property for displayed by a builder }Q sale or for rent . or may be ad ver t j Se the construction propertyd�trin and sale, builder the Lot when he has sold the property . di-1 a' a =` v,, s' n C' 1 ( c ) Fencing . No fence. wall . hedge or than eighteen ( 18) inches shall be hrLtb planting higher ll Permitted between the front Property line and the front building set-back line except where such Planting is part of Residence landscaping and the Prime root thereof is within four (4 ) feet of the Residence. Corner Lots shall be deemed to have two ( 2) front vards. Trees s shall not be deemed "shrubs" unless planted in such a manner as to constitute a hedge" . No chain link fence shall be er_c ed , n t�., tona Lot . All fencing shall be Linlfor m in height . style-- and color and substantially similar in material No fenceshall 3 maintained on or within ha be erected or any Landscaping Easement except such as may be installed by Declarant and subsequently replaced by the Corporation in such manner as to 1 f rS preserve t 1"t c {.,'n 1?•C,r.m i{"v C;f such c ce. H11 fences on Lake Lots shall be wrought iron or similar material . No cef=n may be erected on a Lot without the prior �sPProva i ofthe architectural Review Board . which ' ff,.trthe with Tra`J establish r restrictions respect to fences . including limitation= on (or orohib1tion of ) the installation offences in t r et a Lot abetting a Lake !-.e rear :and and design =standards for fences as fences shall be in kept - o good repair . No, fence. wall =shrub Planting which obstructs s � , hedge or two elevations 1C } N.� ( " and c + r ��� e2�-rt lines at bet-ween _, abo': e street shall he hi='-ed o f permi t}-ed to remain on any corner lot wi thin the tri r formed byt!-re stye t - angu a, area / ''Pet f m thee c°roPer � lines and a line connect-inn p it±*= 25 . ro in tercec t i - -- t on of said st � - a street line reef _ roes. hr 1n tr,e ��. with the edgy of l i e. NoC _. a driveway pavement%" or r3 tree =hall be permits to alley line. ed remain within s5u`h i'v +... sec` d c}•Jn - intersections � �- ^.T sL;C unless the .foliage line is maintained at sufficient heldht +o pr=,v=,mt obstruction of suC` � ;- mht tr � 1n== . ( d ) Vegetation >n Owner shall not oermrit i-he ,..seeds d l ttree= - •- crowlth of an m L,n . err nd bushes on his `�t and =hall keen kms: Lot reasonably Claa`rfrom � Lot . G; _ �= suC unsightly g„ `wtha -.it at all C time= . = , Ifn Owner f il = to comply with th1� �ectrlCtion . TtD - ; hi} Ct. ralKev .ey Board shall cause the weeds tobe Ssuch arowthat -t_ cut and the Lot cleared •,�.,.+, r h �C she ems;gen=.e _f the Owner t}':OYDo a: e C 1t tw-al Review Board =hall }-� s � ' haveD lien against the cleared Lot for the ' pene thereof . Carried on Nuisances. No noxious or offensive activity shall be ca upon any Lot nor shall anything be done thereon which m1' be. or ma',' become, an annoyance or nuisance o neighborhood . Barks _ t then�. dog= sisal „ constitute a nuisance. ( f ) Garbage and Refuse Disposal.. t maintained �_ a du4l-iP1n - - . No Lo shall be used or g around fortrash. R�,hh=s g Ct t-rar w:ac tD shall be kept 'r• arUaCe or view . 1 in sanitary containers out of Public _. _ Amer:t for st Drage or disposal G of such materials be kept clean and sanitary . (a ) Livestock and Poultry. No animals . livestock or poultry of r± . kind =hall be raised . bred or kept on, y _t . except that 11 dogs. cats or other household Ret are not kept, bred or maintained � may kept RrG'rided that thea,, Daren or any commercial ouroo=_e. of such ho. _permitted pets shall The respective Lots such that they will tconfine them tow t= r not be a nuisance. Oenf Boas shat >t� Z so control or confine them so as to avoid barkinowhich will annoy or disturb adjoining Owners. ( h) Outside Burning . No trash, leaves, shall be burned or other materials .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 Gr dog;n- link shall be permitted on any Lot , nor shall any exterior antenna be Permitted thereon without the prior written consent of the Architectural Review Board. The Architectural not be obligated to + • tectural Review Board shall give its s consent to the installation of any exterior television antenna if television reception 1s available from under-around cable connections serving the Lot or to the installation of any other exterior anter within C? >C feet of the Lot upon which them if all Owners of Lobe to the erected do not consent in writing h opesed antenna would be 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 other: outside only be operated activities recuire the use thereof and not continuously. ( 1 ) Tennis ?_ourts. No tennis court shall be installed or maintained on any Lot which abuts a Lake. (m) Swimming Pools. No swimmingL'`�G-o ; or egtllp??'te!%t or building related thereto shall be constructed without the prior approval of the Architectuai Review Board . No swimming pool shall be located on a Lot abuttino within35 feet e� from the alatPr ' s e(_'7go at normal 000l elevation as established on the engineering design plans for the Lake filed with the Zoning authority . Ifvariance a permitting installation of a mechanical pool cover in lieu of fencing has been or may be obtained from the Zoning Authority . then the Architectural Review Board may require, as a condition to the location of a swimming pool on a Lot . that the Owner install mechanical pool cover . a o . If the Board imposes such recuirement a mechanical cool then cover of a type and manufacture approved b,,, Architectural Review Board =_ the hail be instal led by the Owner in compliance with all applicable legal requirements established b':' the Zoning Authority as a condition to osuch variance. and all . 12 • requirements established by the Architectural Review Board . 10Windemere Homeowners Association . Inc . (a) Membership. Each Owner shall automatically be a Member and shall enjoy the privileges and be bound by the obligations contained in the Articles and By-Laws. If upon his security and become an Owner, he shall ethen bersonusubject3to 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 and By-Laws. tooether 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 Tract . 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 Tract have been sold. y 00, or on December 31 . •tib, whichever first occurs. ( d ) Voting and Other Rights of Members. The voting and other rights of Members shall be as soecified in the Articles and By- Laws. ( e) Reserve fo_r_Replacements, The Board of Directors shall establish and maintain the Reserve forReplacements •. r-'ts 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 tak consideration the expected useful life of the Community Area . e into projected increases in the cost of materials and labor. interest to be earned by such fund and the advise of Declarant or such consultants as the Board may employ .p y . The Reser,•e for Replacements shall be deposited in a special account with a lending institution the accounts of which are insured by an a ag�ncy. of Amar r of the United States aca or may, in the discretion of the Board , be invested in obligations of . or fully guaranteed as to principal by , the United . 13 States of America. Funds deposited in the Reserve for Replacements derived from the Initial Capital Assessment shall be expended only in payment of Maintenance Costs incurred with respect to the Lake Control Structures. ( f ) Limitations on Action by the Corporation. Unless the class B Member and ( i ) at least two-thirds of the Mortgagees ( based on one vote for each first mortgage owned ) or ( ii ) 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 orantinc 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 ) chance 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, rioht=_ 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 tooether 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 covenants established by this Declaration within the Tract except as hereinafter provided . ( h) Termination o*. 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 Class9 membership terminates. but no such termination shall affect the rights and powers of Declarant set forth in Paragraphs 14( b) 14( f ) . 15 or 19( b') . 4 'rt 11 . Assessments. 1 ( a) Creation of the Lien and Personal Obligation of Assessments. Declarant hereby covenants. and each nwner 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) Initial Capital Assessment 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 General ly. Each Lot owned by a person other than Declarant shall be assessed at a uniform rate without retard to whether a Residence has been constructed upon the Lot. (2) Lots Owned by Declarant . No Lot owned by Declarant shall be assessed by the Corporation except such Lots as have been improved by the he construction thereon of Residences which shall be subject to assessment as provided in Clause ( 1 ) above. ( 3 ) Chance in Basis. The -_---- ----_-- --- basis f o r 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 ( ii ) two- thirds (2/3) of the Mortgagees ( based on one vote for each first mortoaee owned ) who are voting in person or by proxy at a meetino 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 . 15 • specified in subparagraph ( ii ) . fix the General Assessment for each assessment •rear of the Corporation at an amount sufficient to meet the obligations imposed by this Declaration upon the Corporation . The Board of Directors shall e=stablish 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 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 Owner= of certain Lots shall then be allocated to the Owners of such Lots. The provisions of s%uboaraeraph ( ii ) for uniform assessment shall not be deemed to reguire that all assessments aoainst vacant Lots or Lots improved with comparable tvpes of Residences be equal . but only that each Lot be assessed uniformly with respect to comparable Lots =>ubiect to assessment for similar costs ande'.rpenses. ( c ) Initial Capital Assessment. On the earlier of ( i ) the date a Lot is conveyed by Declarant to an Owner ( other than the holder of a first mortgage on such Lot in a conveyance which constitutes a deed in lieu of foreclosure ) • iii .) the date a Residence constructed on the Lot has been certified ied for occupancy b•r the Zoning Authority or ( iii ) the date a Residence on the Lot is first occupied by an Owner upon completion of construction thereof there shall be due and payable to the Corporation by the Owner of such Lot the sum of : ( A) Tree Hundred Dollars ($300.00) if such Lot abuts a Lake or ( B) TwoHundred Dollars ( $200.00)r;.,) if such Lot does not abut a Lake. All such sums =hall be deposited in the Reserve for Replacements maintained by the Corporation . (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 of defraying , in whole or in Part . the cost of any construction . repair, or replacement of a capital improvement upon or Constituting a part of the Community Area , including fixtures and personal property relating thereto provided that anysuch Assessment shall have the assent of theClassB 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 such meeting g of M Members duly . 15 called for this purpose. (e) Date of commencement of Assessments. The General Assessment shall commence with respect to assessable Lots on the first day of the month following conveyance of the first Lot to an Owner who is not Declarant. The initial Assessment on any assessable Lot shall be adjusted according to the number of whole months remaining in the assessment year. ( 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 . (q ) Subordination of the Lien to Nortaages. 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 =ale o,r transfer of any Lot pursuant to mortoaeeforeclosure 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 becomina due or from the lien thereof . ( h) Certificates. The Corporation shall . upon demand by an Owner . at any time, furnish a certificate in writing sinned 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 ) Exempt Property . The following property subject to this Declaration shall be exempt from the Assessments . charge and lien created herein: ( 1 ) all properties to the extent of any easement or other interest therein dedicated and accepted by the local Public authority and devoted to public use; ( 2 ) the Community Area : (3) all properties exempt from taxation by state or local . 17 i governments upon the terms and to the extent of such legal exemption . Notwithstanding any provisions herein . no land or improvements devoted to dwellino use shall be exempt from said Assessments. charges or liens. ( j ) Annual Budget. By a majority vote of the Directors, the Board of Directors shall adopt an annual budget for the subsequent fiscal year , which shall provide for allocation of expenses in such a manner that the obligations imposed by the Declaration will be met. 12. Architectural Control . ( a ) The Architectural Review Board . An Architectural Review Board consisting of three ( 3) Persons asprovided in the -L 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 ) Chanoe in 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. rior to the P h commencement by an Owner other than Declarant of ( i ) construction . erection or alteration of any Residence. building . fence, wall , swimmino pool . tennis court . Patio. pier. dock recreational equipment. or other structure onya 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 by the Architectural Review Board of a Lot Development Plan relating to such construction erection . alteration or plantings. Such approval shall be in addition to. and not in lieu of , all approvals consent= permits and/or 'variances required by law from governmental authorities C d c `: Windemere.having 3...ri 2 tion over 1indem r and no Owner shall undertake any construction activity within Windemere unless legal requirement= 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 . 18 used in this subparagraph (c ) . "plantings_" does not include flowers, bushes. shrubs or other plants haying a height of less than 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 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 aranted . If Declarant is no longer a Class B member, a decision of the Architectural Review Board may be appealed to the Board of Directors which may reverse or modify such decision 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 such architectural and landscapine design euidelines 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 . If Declarant is no long a Class B member . any such puide •i ine or standard may be appealed to the Board of Directors which may terminate or modify such guideline or standard b,, a two-thirds (2/3) vote of the Directors then servinw 13. Community Are a. ( a ) ©wnership. 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 or Adequacy . Declarant expressly disclaims any warranties or representations reaardinc the density of use of the Communit•, Area or any facilities located thereon or the adequacy thereof for the purpose intended . (c ) OObliaations 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 wood . c l can . a t t r�.cti .�e 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 . 19 at extent °ranted by, and subject to the terms and provisions of , this Declaration or resolution adopted by the Board of Director=. Such rights and easements as are thus granted shall be appurtenant to and shall pass with the title to Dvery Lot for whose benefit they are granted. The Owners of Lots abutting the Lake mai, use the Lake. but such use shall be limited to fishing and such other uses as may be authorized by resolution adopted by the Board of Directors. Each Owner shall have the riaht to use such parts of the Community Area as are reasonably required to afford access to and from such Owner ' s Lot . (e) Extent of Easements. The easements of enjoyment created hereby shall be subject to the following : ( i ) the right of the Corporation to establ _shtreaconable rules for the use of the Community Area: ( ii ) the riaht 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 aooroval of the Class B member and ( i ) two-thirds ( 213) of the votes of the Class A members (excludina Declarant) or ( ii ) two-thirds (2/3) of the Mortgaaees ( based on one vote for each first mortgace owned ) , voting in person or by prexv at a regular meeting of the Corporation or a meeting duly called for this purpose: and ( iii ) 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 sianed by the Class B member and ( i ) the appropriate officers of the Corporation acting pursuant to authority granted by two-thirds (213 ) of the votes of the Class A members (excluding Declarant ) or ( ii ) two-thirds ( 2/3) of the Mortaaaes ( based on one vote for each first mortaage wined ) . aareeinc to such dedication or transfer . has been recorded . ( f ) Additional Rights of Use. The members of the family and the guests_ of every Person who has a richt of enjoyment to the Community Area and facilities ma,,, use the Community Area and facilities subject to such General regulations consistent with the provision= of this Declaration as may be established from time to time by the Corporation and included within the Register of • Reaulations. ( a ) Damage or Destruction_ by_ Owner . In the event the Community Area is damaaed or destroyed by an Owner or any of his guest=. tenants. licensees. agent=. or member of his family . such Owner authorize= the Corporation to repair said damaaed area: the corporation =hall repair said damaged area in a good workmanlike manner in conformance with the original plans and specification= of 0 the area involved . or as the area may have been modified or altered subsequently by the Corporation in the discretion of the Corporation . The amount necessary for such repairs shall become a Special Assessment 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 the Lakes and Lake Control Structures to the Corporation. free and clear of all liens and financial encumbrances_. not later than two (2) years from the date of this Declaration . Owners shall have all the rights and obligations imposed by this Declaration with respect to such Community Area prior to conveyance. except that the Corporation shall not be liable for payment of taxes and insurance for such Community Area until title is conveyed . 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 eassements, sewer easements, utility easements, entry way easements, landscaping easements, lake access easements and non- access easements, either separately or in any combination thereof , as shown on the Plat . which are reserved for the use of Owners, public utilities 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 undero_round conduit, to serve the needs of Windemere and adjoining around and/or public drainage s•,stems: and it shall be the individual resoonsibility 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 water-f l ow. Said areas are subject to construction or reconstruction to any extent necessary to obtain adequate drainage at any time by any governmental authority having jurisdiction over drainage. by Declarant . and by the Architectural Review Board but neither Declarant nor the Architectural Revs=w Board shall have any duty to undertake any such construction 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 government agency having jurisdiction over any storm and sanitary waste disposal system which may be designed to serve Windemere for the purpose of installation and maintenance of sewers that are a Dart of said system. 21 1 ( iii ) 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. ( iv) Entry Way Easements. (EWE) are created for the use of Declarant. the Architectural Review Board and the Corporation for the installation . operation and maintenance of the Entry Ways. (v ) Landscaping 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. ( vi ) Lake _Access. _Easements. ( LAE ) are created for the use of Declarant the Corporation, the Drainage Board and the Clay Townshio Regional Waste District for the purpose of gaining access to the Lake. the Lake Control Structures, the Drainage System 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 structurc. includingfences. shall be built- on any drainage, sewer or utility easement. bu t paved a driveway r:eceC_=_.ary to provide access. to a Lot from a public street or Roadway shall not be deemed str+uct.:re" for the pf,rocse of 'chis 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 exoressly 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 the Tract except as proposed and approved by Declarant prior to the conveyance of the first Lot in the Tract 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 shallhave 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 1 upon which a Residence has been constructed . (c ) Public Health and Safety Easements. An easement is hereby created for the benefit ofr 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 Hoard to enter the Tract and all Lots therein to the extent necessary to exercise its rights with respect to all or any part of the Drainage System or Lake Control Structures which are included within any legal drain . (e) Crossing Underground Easements. Easements utilized for underground Service may be crossed by drive:^lays, walkways and Lake Access Easements provided prior arrangements are made k'iith 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 the Tract . Declarant reserves a blanket easement and right on , over and under the ground within the Tract to maintain and to correct drainage of surface 'water in order to maintain reasonable standards of health, safety and 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. Co ) Water Retention . The Owner of each Lot , by acceptance of a deed thereto. consents to the temporary storage (detention ) of -term '-.•'.-.ter within the drainage easements ( DE) on such Owner ' s Lot . 15. Declarants Use During Construction . Notwithstanding any provisions to the contrary contained herein or in any other instrument or agreement , Declarant or its sales agent= or contractors may maintain during the Period of construction and sale of Lots and Residences in the tract. upon such portion thereof as is owned or leased by Declarant. such facilities as in the =ole opinion of Declarant may be reasonably repuired , 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. lb. 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 provision== of this Declaration , but neither Declarant nor the Corporation shall be liable for damage of any kind to any Person for failure either to abide by, enforce or carry out any of the Restriction=. No delay or failure by any Person to enforce any of the Restriction= 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 party shall be entitled to recover all costs of enforcement , including attorneys ' fees, if it substantially prevails in such action . 17 . Approvals by Declarant . As long as there is a Class B Member. the following actions shall require the prior approval of Declarant: the dedication or transfer of the Communit'. Area : the mercer or consolidation of the Tract with other real estate: mortgaging of the Community Area; amendment of this Declaration : and changes in the basis for assessment or the amount , use and time of payment of the Initial Caoital Assessment . 19. Mortcages. ( a ) Notices to Corooration . Any Owner who places a first mortoage 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 Mortgacee pursuant to the terms of the Declaration . the Articles or the By-Laws ( the "Organizational Documents" ) shall be deemed effectively oiven if mailed to such Mortgagee at the address shown in such record in the time provided . Unless notification of any such mortcaoe 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 cu�a be otherwise required by the Organizational Documents shall be required and no Mortoaoee shall be entitled to vote by virtue of the Organizational Documents or a proxy oranted to such !r.rtd gee in connection with the mortoace. -- ( 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 (6o) days; ( iii ) Any lapse. cancellation or material modification of any insurance policy or fidelity bond maintained by the Corporation : ( iv ) Any proposed action that required the consent of a specified percentage of Mortgagees; and . ( v . any proposed amendment of the Organizational Documents effecting a chance in (A) the interest 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 oropoCed purchaser who has a contractual richt 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 subiect 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 . (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 poi ;ac nr secure new hazard insurance coverage for the Community Area in case of z., lapse of a policy . A Mortgagee making such payments shall be entitled to immediate reimbursement from the Corporation . 19. Amendments, ( a ) Generally. This Declaration may be amended at any time by an instrument signed by ! ii 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 , 2000. 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 the rights or increase or expand the obligations of Owners with respect to Lots conveyed to such Owners prior to the amendment , or adversely affect the rights and interests of Mortgagees holding first mortgages on Residences at the time of such amendment . Declarant shall give notice in writing to such Owners and Mortgagees of any amendments. Exceot to the extent authorized in Paragraph 15( b) , Declarant shall not have the richt 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 . 20. 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 work shall be taken to mean or apply to the plural and the masculine form shall be taken to mean or appl., to the feminine or to the neuter . 21 . 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 rnn with the land and be binding on all parties and all Persons claiming under them until January 1 , 2021 . 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 Person= who are then the Owners of a majority of the Lots in the Tract . 22. Severability_. Every one of the Restrictions is hereby declared to be independent of , and severable from. the rest of the i Restrictions and of and from every other one of the Restrictions. { and df and from every combination of he Restrictions . Therefoe, if any of the Restrictions shall be held to be invalid or to be 2 b 1 I unenforceable, or to lack the quality of runninq with the land , that holding shall be without effect upon the validity. enforceability or "running" quality of any other one of the Restrictions. 23. 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 aaree 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 describe 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 . `2 TESTIMONY WHEREOF . witness the sionatures_ of Declarant as of the date sat forth above. WI NDErIERE CORPORATION Steven Wilson . President -_ Attest: Richard Carriaer , Secretary STATE OF INDIANA ? SS : COUNTY OF HAMILTON ? Before me, the undersigned , a Notary Public in and for said 7; snw. _-- County and State. personally r ps aped , i-•arriger. the President a' jteY'en WIS�Dn and Richard sident and Secretary. respectively D? Lindo^ E -eCorporation , an Indiana Corporation, who acknowledged the execution of the above and � and fore,goin G Declaration of Covenant= andtin,_ for and on behalf of said CD.-oD,-atiDn pursuant to authority granted by its Board of Directors. WITNESS my hand and Notarial Seal this. __ day of - - ---- 1994 . - My Commission Expires: _______ Notary Public Printed -.______._-- Residing in Hamilton County. Indiana This instrument prepared by Stephen A. Harlow. Attorney at Law. 9000 Keystone Crossing . - Suite 30. indianapDlis , IN 461: 40 The Southeast Quarter of the Northwest Quarter of Section 9, Township 17 North, Range 3 East in Hamilton County, Indiana. ALSO, The Northeast Quarter of the Northwest Quarter of Section 9, Township 17 North, Range 3 East in said County. ALSO, A part of the Northwest Quarter of the Northeast Quarter of Section 9, Township 17 North, Range 3 East in said County described as follows: Beginning at the Northwest corner of said Northeast Quarter and running thence South along the West line of said Northeast Quarter 20 feet, thence Northeasterly to a point in the North line of said Northeast Quarter, which point is 8 feet East of the Northwest corner of said Northeast Quarter, thence West on said North line of said Northeast Quarter to the corner of said Northeast Quarter which is the place of beginning. EXCEPT, A part of the North Half of Section 9, Township 17 North, Range 3 East of the Second Principal Meridian, in Hamilton County, Indiana, more particularly described as follows: Beginning at the North Quarter corner of Section 9 (being marked by a Harrison monument); thence North 89 degrees 26 minutes 27 seconds East along the North line of the Northeast Quarter of said Section 9 a distance of 8.00 feet; thence South 21 degrees 46 minutes 29 seconds West 21.62 feet to a point on the East line of the Northwest Quarter of said Section 9; thence South 00 degrees 03 minutes 34 seconds West along the East line of said Northwest Quarter 1,100.87 feet; thence North 88 degrees 46 minutes 33 seconds West 141.72 feet; thence South 57 degrees 18 minutes 59 seconds West 197.29 feet; thence South 48 degrees 18 minutes 33 seconds East 11.43 feet; thence South 41 degrees 41 minutes 27 seconds West 50.00 feet; thence South 48 degrees 48 minutes 12 seconds West 194.00 feet; thence North 42 degrees 13 minutes 47 seconds West 137.04 feet; thence North 48 degrees 18 minutes 33 seconds West 50.00 feet; thence North 41 degrees 41 minutes 27 seconds East 27.99 feet; thence North 48 degrees 18 minutes 33 seconds West 180.00 feet; thence South 56 degrees 56 minutes 08 seconds West 93.17 feet; thence South 83 degrees 20 minutes 40 seconds West 73.69 feet; thence South 18 degrees 59 minutes 17 seconds West 250.00 feet; thence North 71 degrees 00 minutes 43 seconds West 61.21 feet to the point of curvature of a curve concave southeasterly, the radius point of said curve being South 18 degrees 59 minutes 17 seconds West 10.00 feet from said point; thence westerly and southerly along said curve 28.98 feet to the point of tangency of said curve, the radius point of said curve being South 64 degrees 02 minutes 43 seconds East 20.00 feet from said point, said point also being the point of curvature of a curve concave southeasterly, the radius point of said curve being South 64 degrees 02 minutes 43 seconds East 325.00 feet from said point; thence southerly along said curve 137.75 feet to the point of tangency of said curve, the radius point of said curve being South 88 degrees 19 minutes 48 seconds East 325.00 feet from said point;thence North 88 degrees 19 minutes 48 seconds West 50.00 feet; thence South 01 degrees 40 minutes 12 seconds West 95.70 feet; thence North 88 degrees 19 minutes 48 seconds West 209.08 feet to a point on the West line of the Northeast Quarter of the Northwest Quarter of the aforementioned Section 9; thence North 00 degrees 07 minutes 00 seconds East along said West line 1615.64 feet to the Northwest corner of the aforementioned Quarter Quarter Section; thence North 89 degrees 26 minutes 27 seconds East along the North line of said Quarter Section 1330.98 feet to the place of beginning;containing 40.00 acres, more or less, subject to all legal highways, rights-of-way, easements and restrictions of record. METES/13540SPT EXHIBIT "A"