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HomeMy WebLinkAboutCovenants, Conditions, & Restrictions_Recorded 03-25-88 n . /t a,.4 RRE KV^AECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS � AT9. W of MAR 25 1988 WALDEN POND 3001r6PAGt HIS DECLARATION is made this 15 day of January 1988, RECORDER _ Bo .r,. :'GE DEVELOPMENT CORP. , an Indiana Corporation (the Developer" ) . Recitals 1 . Developer is the owner of certain real estate more particularly described in Exhibit A attached hereto and made a part hereof (the "Initial Real Estate" ) . 2 . Developer intends to subdivide the Initial Real Estate into residential lots as generally shown on the plat for Walden Pond as hereafter recorded in the office of the Recorder of Hamilton County, Indiana. 3 . Before so subdividing the Initial Real Estate, Developer desires to subject the Initial Real Estate to certain rights, privileges, covenants, conditions, restrictions, easements, assessments, charges and liens for the purpose of preserving and protecting the value and desirability of the Initial Real Estate for the benefit of each owner of all or any part thereof . 4. Developer further desires to create an organization to which shall be delegated and assigned the powers of maintaining and administering the common areas and certain other areas of the Initial Real Estate, administering and enforcing the covenants ' and restrictions contained in this Declaration and the subdivision plat of the Initial Real Estate as hereafter recorded in the office of the Recorder of Hamilton County, Indiana, and collecting and disbursing the assessments and charges as herein provided . 5. Developer may from time to time subject additional real estate located within tracts adjacent to the Initial Real Estate, as more particularly described in Exhibit B attached hereto and made a part hereof , to the provisions of this Declaration (the Initial Real Estate, together with any such addition, as and when the same becomes subject to the provisions of this Declaration as herein provided, is hereinafter referred to as the "Real Estate" ) . NOW, THEREFORE, Developer hereby declares that the Real Estate is and shall be held, transferred, sold, conveyed, hypothecated, encumbered, leased , rented , used, improved and occupied subject to the following provisions, agreements, covenants , conditions, restrictions, easements, assessments, charges and liens , which shall run with the land and shall be binding upon, and inure to the benefit of, Developer and any other person or entity hereafter acquiring or having any right, title or interest in the Real Estate, or any part thereof . Declaration ARTICLE I DEFINITIONS The following terms, when used in this Declaration with initial capital letters, shall have the following respective meanings: 1 . 1 "Association" means Walden Pond Homeowners ' Association, Inc. , an Indiana not-for-profit corporation, which Developer has caused or will cause to be incorporated, its successors and assigns . 1 .2 "Committee" means the Walden Pond Architectural Control Committee established pursuant to Article VI , paragraph 6. 1 , of this Declaration for the purposes herein stated . 1 .3 "Common Expenses" means ( i ) expenses of administration of the Association; ( ii) expenses of and in connection with the performance of the responsibilities and duties of the Association as set forth herein and in the Plat Covenants and Restrictions of Walden Pond; ( iii) all sums lawfully assessed against the Owners by the Association and ( iv) all sums declared by this Declaration to be Common Expenses. 1 .4 "Developer" means Estridge Development Corp. , an Indiana Corporation, and any successors and assigns of it whom it designates in one or more written recorded instruments to have the rights of Developer hereunder, including, without limitation, any mortgagee acquiring title to any portion of the Real Estate pursuant to the exercise of rights under, or foreclosure of, a mortgage executed by Developer. 1 . 5 "Development Period" means the period of time commencing with the date of recordation of this Declaration and ending on the date developer no longer owns any Lot within or upon the Real Estate. 1 .6 "Lot" means a numbered parcel of land shown and identified as a lot on any subdivision plat of the real Estate now or hereafter recorded in the office of the Recorder of Hamilton County, Indiana. 1 .7 "Mortgagee" means the holder of a recorded first mortgage lien on any lot. 2 1 . 8 "Nonaffiliated Owner" means any "Owner" (hereinafter defined) other than Developer, The Estridge Group, Inc. , or any entity related to Developer . 1 . 9 "Owner" means the record owner , whether one or more persons or entities , of fee-simple title to any Lot, including contract sellers , but excluding those having such interest merely as security for the performance of an obligation unless specifically indicated to the contrary. The term Owner as used herein shall include Developer so long as Developer shall own any Lot. 1 . 10 "Limited Access Easement means the portion of the Real Estate designated as any subdivision plat of the Real Estate now or hereafter recorded in the Office of the Recorder of Hamilton County, Indiana as Limited Access Easement. 1 . 11 "Lake Common Area" means the portion of the Real Estate designated on any subdivision plat of the Real Estate now or hereafter recorded in the Office of the Recorder of Hamilton County, Indiana as Lake Common Area. 1 . 12 "Lake Maintenance and Access Easement" ( "LMAE" ) means the portion of the Real Estate designated on any subdivision plat of the Real Estate now or hereafter recorded in the Office of the Recorder of Hamilton County, Indiana as Lake Maintenance and Access Easement ( "LMAE" ) . 1 . 13 "Utility Easement and Drainage Easement" means the portion of the Real Estate designated on any subdivision plat of the Real Estate now or hereafter recorded in the Office of the Recorder of Hamilton County, Indiana as Utility Easement and Drainage Easement. 1 . 14 "20' Greenbelt" means the portion of the Real Estate designated on any subdivision plat of the Real Estate now or hereafter recorded in the Office of the Recorder of Hamilton County, Indiana as 20' Greenbelt. 1 . 15 "Restricted Common Area" (Rest. Common Area) means the portion of the Real Estate designated on any subdivision plat of the Real Estate now or herefter recorded in the Office of the Recorder of Hamilton County, Indiana as Restricted Common Area. 1 . 16 "Private Street" means the portion of the Real Estate designated on any subdivision Plat of the Real Estate now or hereafter recorded in the Office of the Recorder of Hamilton County, Indiana as Private Street. ARTICLE II NAME The name by which the Real Estate shall be known is "Walden Pond . " ARTICLE III APPLICATION All Owners , their tenants, guests, invitees and mortgagees, or any other person using or occupying a Lot or any part of the Real Estate shall be subject to and shall observe and comply with the covenants , conditions , restrictions, terms and provisions set forth in this Declaration and any rules and regulations adopted by the Association as herein provided, as the same may be amended from time to time . The Owner of any Lot and all other persons, ( i ) by acceptance of a deed conveying title thereto or the execution of a contract for the purchase thereof , whether from the Developer or a subsequent Owner of such Lot, or ( ii ) by the act of occupancy of such Lot, shall conclusively be deemed to have accepted such deed, executed such contract or undertaken such terms and provisions of this Declaration. By acceptance of such deed, execution of such contract or undertaking of such occupancy, each Owner and all other persons acknowledge the rights and powers of Developer and the Association provided for by this Declaration, and for himself, his heirs, personal representatives, successors and assigns , covenant, agree and consent to and with Developer and the Owners from time to time of the Lots, to keep, observe, comply with and perform the covenants, conditions, restrictions, terms and provisions of this Declaration. ARTICLE IV LAKE COMMON AREAS AND RESTRICTED COMMON AREAS 4 . 1 Easement to Owners. Developer hereby creates and grants a non-exclusive easement in favor of each Owner for the visual and aesthetic use and enjoyment of the Lake Common Areas and the Restricted Common Areas which shall run with and be appurtenant to each Lot, subject to the following provisions: • ( i ) the right of the Association to suspend the voting rights and right to use of any recreational facilities by an Owner for any period during which any assessment against his Lot remains unpaid and for a period not to exceed sixty ( 60) days for any infraction of its published rules and regulations; ( ii ) the right of the Association to dedicate or transfer all or any part of the Lake Common Areas and/or Restricted Common Areas to any public agency, authority or utility for such purposes and subject to such conditions as may be set forth in the instrument of dedication or transfer, upon the approval of two-thirds ( 2/3) of the membership of each class of members of the Association; 4 ( iii) the rights of the Developer as provided in this Declaration and in any subdivision plat of the Real Estate now or hereafter recorded in the office of the Recorder of Hamilton County, Indiana; ( iv) the terms and provisions of this Declaration and the terms and provisions of the Plat Covenants and Restrictions and all amendments thereto; (v) the easements reserved elsewhere in this Declaration and in any subdivision plat of the Real Estate now or hereafter recorded in the office of the Recorder of Hamilton County, Indiana. 4 .2 Delegation of Use. Any Owner may delegate, in accordance with the By-Laws of the Association and any reasonable and nondiscriminatory rules and regulations promulgated from time to time by the Association, his right of enjoyment of the Common Areas to his family members, his tenants or contract purchasers who reside on the Lot. 4.3 Conveyance of Common Areas. Upon final construction of the Lake Common Areas, the Restricted Common Areas, Limited Access Easements, and Private Streets Developer shall convey all of its right, title and interest in and to such areas to the Association by quitclaim deed, and such areas shall then be the property of the Association. ARTICLE V ASSOCIATION 5. 1 Membership. Each Owner shall, automatically upon becoming an Owner, be and become a member of the Association and shall remain a member of the Association until such time as his ownership of a Lot ceases, at which time his membership will terminate and the new Owner of his Lot shall be and become a member of the Association. 5 . 2 Classes of Membership. The Association shall have two ( 2) classes of membership, as follows : ( i ) Class A Members. Class A members shall be all Owners other than Developer and The Estridge Group, Inc. (unless the Class B membership has been converted to Class A membership as provided in the following subparagraph ( ii ) , in which event Developer shall then be a Class A member) . Class A members shall be entitled to one vote for each Lot owned . ( ii) Class B Members. The Class B member shall be the Developer and The Estridge Group, Inc. The Class B member shall be entitled to three ( 3) votes for each Lot owned . The Class B membership shall cease and terminate and be converted to Class A membership upon the "Applicable Date" (as such term is hereinafter defined in paragraph 5 . 3) . 5 5 . 3 Applicable Date. As used herein, the term "Applicable Date" shall mean the date which is the earlier of : (a) the end of the Development Period; or (b) January 1 , 1995 . 5.4 Multiple or Entity Owners . Where more than one person or entity constitutes the Owner of a particular Lot, all such persons or entities shall be members of the Association, but the vote in respect of such Lot shall be exercised as the persons or entities holding an interest in such Lot shall determine among themselves, but in no event shall more than one ( 1 ) vote ( in the case of Class A membership) be cast with respect to such Lot . 5.5 Board of Directors. The Association shall elect a Board of Directors of the Association as prescribed by the Association' s Articles of Incorporation and By-Laws . The Board of Directors of the Association shall manage the affairs of the Association. 5.6 Professional Management. No contract or agreement for professional management of the Association, nor any other contract between the Developer and the Association shall be for a term in excess of three ( 3) years. Any such agreement or contract shall provide for termination by either party with or without cause, without any termination fee, on written notice of ninety ( 90) days or less. 5.7 Responsibilities of the Association. The responsibilities of the Association include, but shall not be limited to: ( i ) Installation and replacement of such fences, walls, foliage, landscaping, signs and other improvements in and upon the 20' Greenbelts and the Restricted Common Areas as the Association deems necessary or appropriate and maintenance of the 20' Greenbelts and Restricted Common Areas and any installation thereon in a clean and attractive condition and in good repair. ( ii) Maintenance of the Limited Access Easements and Private Streets in a clean and attractive condition and in good repair . ( iii) Management and control of detention and retention ponds or lakes in and upon the Lake Common Area and Lake Maintenance and Assess Easements (shown and identified as such on any subdivision plat of the Real Estate now or hereafter recorded in the office of the Recorder of Hamilton County, Indiana) for maintenance of the same in a clean, attractive and sanitary condition; and installation and replacement of such improvements in and upon said Lake Common Area and Lake Maintenance and Access Easements the Association deems necessary or appropriate and maintenance of any such improvements installed by Developer or the Association in good condition and repair. Without limiting the generality of the foregoing , such maintenance obligations shall include overflow maintenance to protect the ponds or lakes 6 from erosion, algae control and maintenance of minimum water levels. It is intended that such actions shall be taken in accordance with recommendations regarding the same from applicable governmental agencies having jurisdiction, but nothing herein shall constitute an undertaking or duty to exceed the requirements of applicable law and prudent pond and lake operation. ( iv) Replacement of a drainage system in and upon the Drainage Easements (shown and identified as such on any subdivision plat of the Real Estate noj or hereafter recorded in the office of the Recorder of Hamilton County, Indiana) as the Association deems necessary or appropriate and the maintenance of any drainage system installed in or upon said Drainage Easements by Developer or the Association in good condition and repair, subject, however, to the obligation of the Owner of a Lot subject to a Drainage Easement to keep the portion of the Drainage Easement on his Lot free from obstructions so that the surface water drainage will be unimpeded . (v) Procuring and maintaining for the benefit of the Association, its Board of Directors and the Owners the insurance coverages required under this Declaration and such other insurance as the Association deems necessary or advisable. (vi) Payment of taxes, if any, assessed against and payable with respect to the Common Areas. (vii ) Assessment and collection from the Owners of the Common Expenses . (viii ) Contracting for such services as management, snow removal, security control, trash removal or other services as the Association deems necessary or advisable. ( ix) From time to time, adopting , amending or rescinding such reasonable rules and regulations (not inconsistent with the provisions of this Declaration) governing the use and enjoyment of the Restricted Common Areas, the use and enjoyment of the lakes and ponds located in and upon the Lake Common Areas by the Owners of Lots, and the management and administration of the Association, as the Association deems necessary or advisable, and enforcement of the same. As part of such rules and regulations, the Association may provide for reasonable interest and late charges on past due installments of any Regular or Special Assessments or other charges against any Lot. Copies of such rules and regulations shall be furnished by the Association to the Owners prior to the time when the same shall become effective. (x) Replacement and maintenance of any street identification signs within and upon the Real Estate designated as private street signs. 7 (xi) Procuring and maintaining for the benefit of the Association, its Board of Directors, the Developers , The Estridge Group, Inc. and the Owners, a general liability insurance policy in an amount not less than Three Million Dollars ( $3 ,000 ,000. 00) providing coverage for injury to person or property arising out of the Lake Common Areas, the Restricted Common Areas and the Limited Access Easements. 5. 8 Compensation. No director of the Association shall receive compensation for his services as such director, except to the extent expressly authorized by a majority vote of the Owners . 5.9 Non-Liability of Directors and Officers . The directors and officers of the Association shall not be liable to the Owners or any other persons for any error or mistake of judgment in carrying out their duties and responsibilities as directors or officers of the Association, except for their own individual willful misconduct or gross negligence. The Association shall indemnify and hold harmless and defend each person, his heirs , assigns or legal representatives, who is or was a director or officer of the Association against any and all liability to any person, firm or corporation arising out of contracts made by or at the direction of the Board of directors (or the managing agent, if any) of the Association, unless any such contract shall have been made in bad faith. It is intended that the directors and officers of the Association shall have no personal liability with respect to any contract made by them on behalf of the Association except in their capacity as Owners . 5. 10 Additional Indemnity of Directors and Officers. The Association shall indemnify, hold harmless and defend any person, his heirs , assigns and legal representatives (collectively, the "Indemnitee" ) , made or threatened to be made a party to any action, suit or proceeding by reason of the fact that he is or was a director or officer of the Association, against all costs and expenses, including attorneys ' fees, actually and reasonably insured by the Indemnitee in connection with the defense of such action, suit or proceeding , or in connection with any appeal therein, except ( unless otherwise specifically provided herein) in relation to matters as to which it shall be adjudged in such action, suit or proceeding that such Indemnitee is liable for gross negligence or willful misconduct in the performance of his duties . The Association shall also reimburse any such Indemnitee for the reasonable costs of settlement of or judgment rendered in any action, suit or proceeding , if it shall be found by a majority vote of the Owners that such director or officer was not guilty of gross negligence or willful misconduct. In making such findings and notwithstanding the adjudication in any action, suit or proceeding against an Indemnitee, no director or officer shall be considered or deemed to be guilty of or liable for gross negligence or willful misconduct in the performance of his duties where, acting in good faith, such director or officer relied on the books and records of the Association or statements or advice made by or prepared by the managing agent of the Association ( if 8 any) or any officer or employee of the Association, or any accountant, attorney or other person, firm or corporation employed by the Association to render advice or service, unless such director or officer had actual knowledge of the falsity or incorrectness thereof ; nor shall a director be deemed guilty of or liable for gross negligence or willful misconduct by virtue of the fact that he failed or neglected to attend a meeting or meetings of the Board of Directors of the Association. The costs and expenses incurred by an Indemnitee in defending any action, suit or proceeding may be paid by the Association in advance of the final disposition of such action, suit or proceeding upon receipt of an undertaking by or on behalf of the Indemnitee to repay the amount paid by the Association if it shall ultimately be determined that the Indemnitee is not entitled to indemnification as provided in this paragraph 5 . 9 . 5. 11 Bond . the Board of Directors of the Association may provide surety bonds and may require the managing agent of the Association ( if any) , the treasurer of the Association, and such other officers as the Board of Directors deems necessary, to provide surety bonds, indemnifying the Association against larceny, theft, embezzlement, forgery, misappropriation, wrongful abstraction, willful misapplication, and other acts of fraud or dishonesty, in such sums and with such sureties as may be approved by the Board of Directors, and any such bond shall specifically include protection for any insurance proceeds received by any reason by the Board of Directors . The expense of any such bonds shall be a Common Expense. ARTICLE VI WALDEN POND ARCHITECTURAL CONTROL COMMITTEE 6. 1 Creation. There shall be, and hereby is, created and established the Walden Pond Architectural Control Committee to perform the functions provided for herein. Until the Applicable Date, the Committee shall consist of three ( 3) members appointed, from time to time, by Developer and who shall be subject to removal by Developer at any time with or without cause. After the Applicable Date, the Committee shall be a standing committee of the Association, consisting of three ( 3) persons appointed, from time to time, by the Board of Directors of the Association. 6. 2 Purposes and Powers of Committee. The Committee shall regulate the external design, appearance and location of residences , buildings , structures or other improvements placed on any Lot, and the installation and removal of landscaping on any Lot, in such a manner as to preserve and enhance the value and desirability of the Real Estate for the benefit of each Owner and to maintain a harmonious relationship among structures and the natural vegetation and topography. ( i) In General . No residence, building , structure or improvement of any type or kind shall be repainted, constructed 9 or placed on any Lot without the prior written approval of the Committee. Such approval shall be obtained only after written application has been made to the Committee by the Owner of the Lot requesting authorization from the Committee. Such written application shall be in the manner and form prescribed from time to time by the Committee and, in the case of construction or placement of any improvement, shall be accompanied by two ( 2) complete sets of plans and specifications for any such proposed construction or improvement. Such plans shall include plot plans showing the location of all improvements existing upon the Lot and the location of the improvement proposed to be constructed or placed upon the Lot, each properly and clearly designated. Such plans and specifications shall set forth the color and composition of all exterior materials proposed to be used and any proposed landscaping , together with any other material or information which the Committee may require. All plans and drawings submitted to the Committee shall be drawn to a scale of 1 " equals 10 ' , or to such other scale as the Committee may require. When required by the Committee, plot plans shall be prepared by either a registered land surveyor, engineer or architect . Plot plans submitted for the Improvement Location Permit shall bear the stamp or signature of the Committee acknowledging the approval thereof . ( ii) Power of Disapproval . The Committee may refuse to grant permission to repaint, construct, place or make the requested improvement, when: (a) The plans, specifications, drawings or other material submitted are inadequate or incomplete, or show the proposed improvement to be in violation of any restrictions in this Declaration or any subdivision plat of the Real Estate recorded in the office of the Recorder of Hamilton County, Indiana; (b) The design or color scheme of a proposed repainting or improvement is not in harmony with the general surroundings of the Lot or with adjacent buildings or structures; or (c) The proposed repainting or improvement, or any part thereof, would, in the opinion of the Committee, be contrary to the interests, welfare or rights of any other Owner . ( iii) Rules and Regulations . The Committee may, from time to time, make, amend and modify such additional rules and regulations as it may deem necessary or desirable to guide Owners as to the requirements of the Committee for the submission and approval of items to it. Such rules and regulations may set forth additional requirements to those set forth in this Declaration or any subdivision plat of the Real Estate recorded in the office of the Recorder of Hamilton County, Indiana, as long as the same are not inconsistent with this Declaration or such subdivision plat(s) . 10 6. 3 Duties of Committee . The Committee shall approve or disapprove proposed repainting , construction or improvements within fifteen ( 15) days after all required information shall have been submitted to it. One copy of submitted material shall be retained by the Committee for its permanent files. All notifications to applicants shall be in writing, and, in the event that such notification is one of disapproval, it shall specify the reason or reasons for such disapproval. 6.4 Liability of Committee. Neither the Committee, Developer , The Estridge Group, Inc. , the Association nor any agent of any of the foregoing shall be responsible in any way for any defects in any plans, specifications or other materials submitted to it, nor for any defects in any work done according thereto . 6 . 5 Inspection. The Committee may inspect work being performed to assure compliance with this Declaration and the materials submitted to it pursuant to this Article VI . 6.6 Nonapplication to Developer. Notwithstanding the provisions of this Article VI or any other provisions of this Declaration requiring the approval of the Committee, Developer, The Estridge Group, Inc. , or any entity related to Developer , shall not be required to apply for or secure the approval of the Committee in connection with any construction, installation, painting or repainting by Developer, The Estridge Group, Inc. , or any entity related to Developer , of any residence, building, structure, or other improvement on the Real Estate or the installation or removal of any trees, shrubs or other landscaping on the Real Estate. ARTICLE VII ASSESSMENTS 7. 1 Creation of Lien and Personal Obligation. Developer, for each Lot now or hereafter owned by it, hereby covenants, and each Owner of a Lot by acceptance of a deed therefor, whether or not it shall be so expressed in such deed, is deemed to covenant and agree to pay to the Association ( i ) regular assessments for Common Expenses ( "Regular Assessments" ) and ( ii ) special assessments for capital improvements and operating deficits and for special maintenance and repairs ( "Special Assessments" ) . Such assessments shall be established, shall commence upon such dates and shall be collected as hereinafter provided. All such assessments, together with interest, costs of collection and reasonable attorneys ' fees, shall be a continuing lien upon the Lot against which such assessment is made prior to all other liens except only ( i ) tax liens on any Lot in favor of any unit of government or special taxing district and ( ii) the lien of any first mortgage of record. Each such assessment, together with interest, costs of collection and reasonable attorneys ' fees, shall also be the personal obligation of the Owner of the Lot at 11 the time such assessment became due and payable. Where the Owner constitutes more than one person, the liability of such persons shall be joint and several . The personal obligation for delinquent assessments (as distinguished from the lien upon the Lot) shall not pass to such Owner 's successors in title unless expressly assumed by them. The Association shall, upon request of a proposed Mortgagee or proposed purchaser having a contractual right to purchase a Lot, furnish to such Mortgagee or purchaser a statement setting forth the amount of any unpaid Regular or Special Assessments or other charges against the Lot. Such statement shall be binding upon the Association as of the date of such statement. 7.2 Purpose of Assessments. The Regular or Special Assessments levied by the Association shall be used exclusively ( i) to promote the health, safety and welfare of the residents occupying the Real Estate, ( ii ) for the improvement, maintenance and repair of the Common Areas and Landscape Easements, Lake Easements , Drainage Easements and Utility Easements shown and identified as such on any subdivision plat of the Real Estate now or hereafter recorded in the office of the Recorder of Hamilton County, Indiana, ( iii ) for the performance of the responsibilities and duties of the Association and (iv) for such other purposes as are specifically provided herein. A portion of the Regular Assessment may be set aside or otherwise allocated in a reserve fund for the purpose of providing repair and replacement of any capital improvements which the Association is required to maintain. 7.3 Regular Assessments. The Board of Directors of the Association shall have the right, power and authority, without any vote of the members of the Association, to fix, from time to time, the Regular Assessment against each Lot at any amount not in excess of the maximum Regular Assessment hereinafter provided : ( i) Until January 1 , 1989 , the maximum Regular Assessment for a calendar year on any Lot shall not exceed Two Hundred Forty Dollars ( $240.00) ; and, ( ii) From and after January 1 , 1989 , the maximum Regular Assessment on a Lot for any calendar year may be increased by not more than fifteen percent ( 15% ) above the Regular Assessment for the previous calendar year without a vote of the members of the Association. From and after January 1 , 1995, the Board of Directors of the Association may fix the Regular Assessment at an amount in excess of the maximum amount specified above, only with the approval of two-thirds ( 2/3) of those members of each class of members of the Association who cast votes in person or in proxy at a meeting of the members of the Association duly called for such purpose. 12 7 . 4 Special Assessments . In addition to Regular Assessments, the Association, except as provided below, may make Special Assessments against each Lot for the purpose of defraying, in whole or in part, the cost of constructing, reconstructing , repairing or replacing any capital improvement which the Association is required to maintain or to recover any operating deficits which the Association may from time to time incur only with the assent of two-thirds ( 2/3) of the members of each class of members of the Association who cast votes in person or by proxy at a meeting of the members of the Association duly called for such purpose. 7.5 Uniform Rate of Assessment. The Regular Assessments and Special Assessments levied by the Association shall be uniform for all Lots except that all of the provisions of this Declaration of Covenants, Conditions and Restrictions notwithstanding , Developer and The Estridge Group, Inc. shall not be liable for the payment of Regular Assessments and Special Assessments . 7.6 Date of Commencement of Regular Assessments ; Due Dates . The Regular Assessment shall commence as to each Lot on the first day of the first calendar month following the first conveyance of such Lot to a Nonaffiliated Owner. The Board of Directors of the Association shall fix the amount of the Regular Assessment at least thirty ( 30) days in advance of each annual assessment period. Written notice of the Regular Assessment, any Special Assessments and such other assessment notices as the Board of Directors shall deem appropriate shall be sent to each Owner subject thereto. The due dates for all assessments shall be established by the Board of Directors of the Association. The Board of Directors may provide for reasonable interest and late charges on past due installments of assessments . 7. 7 Failure of Owner to Pay Assessments . ( i ) No Owner may exempt himself from paying Regular Assessments and Special Assessments , or from contributing toward the Common Expenses and toward any other expense lawfully agreed upon, by abandonment of the Lot belonging to him. If any Owner shall fail , refuse or neglect to make any payment of any assessment (or periodic installment of an assessment, if applicable) when due, the lien for such assessment on the Owner ' s Lot may be filed and foreclosed by the Board of Directors of the Association for and on behalf of the Association as a mortgage on real property or as otherwise provided by law. Upon the failure of an Owner to make timely payments of any assessment (or a periodic installment of an assessment, if applicable) when due, the Board may in its discretion accelerate the entire balance of any unpaid assessments and declare the same immediately due and payable , notwithstanding any other provisions hereof to the contrary. In any action to foreclose the lien for any 13 assessment, the Owner and any occupant of the Lot shall be jointly and severally liable for the payment to the Association of reasonable rental for such Lot, and the Board of Directors shall be entitled to the appointment of a receiver for the purpose of preserving the Lot and to collect the rentals and other profits therefrom for the benefit of the Association to be applied to the unpaid assessments . The Board of Directors of the Association may, at its option, bring a suit to recover a money judgment for any unpaid assessment without foreclosing or waiving the lien securing the same. In any action to recover an assessment, whether by foreclosure or otherwise, the Board of Directors of the Association, for and on behalf of the Association, shall be entitled to recover from the Owner of the respective Lot costs and expenses of such action incurred ( including but not limited to reasonable attorneys ' fees) and interest from the date such assessments were due, until paid . ( ii) Notwithstanding anything contained in this paragraph 7. 7 or elsewhere in this Declaration, any sale or transfer of a Lot to a Mortgagee pursuant to a foreclosure of its mortgage or conveyance in lieu thereof, or a conveyance to any person at a public sale in the manner provided by law with respect to mortgage foreclosures, shall extinguish the lien of any unpaid assessments (or periodic installments, if applicable) which became due prior to such sale, transfer or conveyance; provided, however, that the extinguishment of such lien shall not relieve the prior Owner from personal liability therefor. No such sale, transfer or conveyance shall relieve the Lot or the purchaser at such foreclosure sale, or grantee in the event of conveyance in lieu thereof, from liability for any assessments (or periodic installments of such assessments , if applicable) thereafter becoming due or from the lien therefor. ARTICLE VIII INSURANCE 8. 1 Casualty Insurance. The Association shall purchase and maintain fire and extended coverage insurance in an amount equal to the full replacement cost of all improvements, if any, which the Association is required to maintain hereunder. If the Association can obtain such coverage for a reasonable amount, it shall also obtain "all risk coverage. " The Association may also insure any other property, whether real or personal, owned by the Association against loss or damage by fire and such other hazards as the Association may deem desirable. Such insurance coverage shall name the Association as the insured. Such insurance policy or policies shall contain provisions that ( i ) the insurer waives its rights to subrogation as to any claim against the Association, its Board of Directors , officers, agents and employees, any committee of the Association or of the Board of Directors, and all Owners and their respective agents and guests and ( ii) waives any defense based on invalidity arising from the acts of the insured. Insurance proceeds shall be used by the 14 Association for the repair or replacement of the property for which the insurance was carried . 8. 2 Liability Insurance. The Association shall also purchase and maintain a master comprehensive public liability insurance policy in such amount or amounts as the Board of Directors shall deem appropriate from time to time, but in any event with a minimum combined limit of One Million Dollars ( $1 ,000,000 . 00) per occurrence. Such comprehensive public liability insurance shall cover all of the Common Areas and the Lake Easement and Landscape Easement areas (shown and identified as such upon any subdivision plat of the Real Estate now or hereafter recorded in the office of the Recorder of Hamilton County, Indiana) and shall insure the Association, its Board of Directors , officers, agents and employees, any committee of the Association or of the Board of Directors , all persons acting or who may come to act as agents or employees of any of the foregoing with respect to the Real Estate, all Owners and all other persons entitled to occupy any Lot. Such public liability insurance policy shall include a "severability of interest" clause or endorsement which shall preclude the insurer from denying the claim of an Owner because of the negligent acts of the Association or other Owners. 8. 3 Other Insurance. The Association shall also purchase and maintain any other insurance required by law to be maintained, including but not limited to workmen's compensation and occupational disease insurance, and such other insurance as the Board of Directors shall from time to time deem necessary, advisable or appropriate, including but not limited to officers ' and directors ' liability insurance. 8.4 Miscellaneous. The premiums for the insurance described above shall be paid by the Association as part of the Common Expenses. ARTICLE IX MAINTENANCE AND DECORATION 9 . 1 Maintenance of Lots and Improvements. Except to the extent such maintenance shall be the responsibility of the Association under any of the foregoing provisions of this Declaration, it shall be the duty of the Owner of each Lot to keep the grass on the Lot properly cut and keep the Lot free of weeds and trash and otherwise neat and attractive in appearance, including , without limitation, the proper maintenance of the exterior of any structures on such Lot. In the event the Owner of any Lot fails to do so in a manner satisfactory to the Association, the Association, after approval by two-thirds ( 2/3) vote of the Board of Directors, shall have the right (but not the obligation) , through its agents , employees and contractors, to enter upon said Lot and to repair, maintain and restore the Lot and the exterior of the improvements erected thereon. The cost 15 of such exterior maintenance shall be and constitute a special assessment against such Lot and the Owner thereof, to be collected and enforced in the manner provided in this Declaration for the collection and enforcement of assessments in general. Neither the Association nor any of its agents, employees or contractors shall be liable for any damage which may result from any maintenance work performed hereunder. 9 .2 Additional Restrictions Concerning Residences and Other Structures . ( i ) No change shall be made in the exterior color of any residence or accessory buildings located on a Lot without the prior written approval of the Committee. ( ii) Existing or newly planted trees on any Lot shall not be removed by an Owner, after his occupancy, without the prior written approval of the Committee; provided, however, that nothing herein shall prevent the removal of trees by Developer, or any entity related to Developer, during the development of the Real Estate and during the construction by Developer, or any entity related to Developer, of a residence or accessory building on any Lot. ( iii ) In order to preserve the aesthetic appearance of the Real Estate, any mailbox must be approved by the Committee as to size, location, height or appearance before it is installed. ARTICLE X MORTGAGES 10.01 Notice to Association. Any Mortgagee who places a first mortgage lien upon a Lot may notify the Secretary of the Association of the existence of such mortgage and provide the name and address of such Mortgagee. A record of such Mortgagee and name and address shall be maintained by the Secretary of the Association and any notice required to be given to the Mortgagee pursuant to the terms of this Declaration, the By-Laws of the Association or otherwise shall be deemed effectively given if mailed t 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, as herein provided, no notice to any Mortgagee as may be otherwise required by this Declaration, the By-Laws of the Association or otherwise shall be required, and no Mortgagee shall be entitled to vote on any matter to which it otherwise may be entitled by virtue of this Declaration, the By-Laws of the Association, a proxy granted to such Mortgagee in connection with the mortgage, or otherwise. 10.2 Notice to Mortgagees. The Association, upon request, shall provide to any Mortgagee a written certificate or notice specifying unpaid assessments and other defaults of the Owner of 16 such Lot, if any, in the performance of such Owner ' s obligations under this Declaration or any other applicable documents, which defaults have not been cured within sixty ( 60) days . ARTICLE XI AMENDMENT 11 . 1 By the Association. Except as otherwise provided in this Declaration, amendments to this Declaration shall be proposed and adopted in the following manner : ( i) Notice. Notice of the subject matter of any proposed amendment shall be included in the notice of the meeting of the members of the Association at which the proposed amendment is to be considered . ( ii) Resolution. A resolution to adopt a proposed amendment may be proposed by the Board of Directors or Owners having in the aggregate at least a majority of the votes of all Owners . ( iii) Meeting . The resolution concerning a proposed amendment must be adopted by the designated vote at a meeting of the members of the Association duly called and held in accordance with the provisions of the By-Laws . ( iv) Adoption. Any proposed amendment to this Declaration must be approved by a vote of not less than two-thirds ( 2/3) in the aggregate of the votes of all Owners ; provided, however, that any such amendment shall require the prior written approval of Developer so long as Developer or any entity related to Developer owns any Lots within and upon the Real Estate . In the event any Lot is subject to a first mortgage, the Mortgagee shall be notified of the meeting and the proposed amendment in the manner as an Owner if the Mortgagee has given prior notice of its mortgage interest to the Board of Directors of the Association in accordance with the provisions of the foregoing paragraph 10. 1 . (v) Special Amendments. No amendment to this Declaration shall be adopted which changes any provision of this Declaration which would be deemed to be of a material nature by the Federal National Mortgage Association under Section 402.02 of Part V, Chapter 4, of the Fannie Mae Selling Guide or any similar provision of any subsequent guidelines published in lieu of or in substitution for the Selling Guide, without the approval of all Mortgagees who have given prior notice of their mortgage interest to the Board of Directors of the Association in accordance with the provisions of the foregoing paragraph 10. 1 . Any Mortgagee which has been duly notified of the nature of any proposed amendment shall be deemed to have approved the same if said Mortgagee or a representative thereof fails to appear at the meeting in which such amendment is to be considered ( if 17 proper notice of such meeting was timely given to such Mortgagee) . In the event that a proposed amendment is deemed by the Board of Directors of the Association to be one which is not of a material nature, the Board of Directors shall notify all Mortgagees whose interests have been made known to the Board of Directors of the nature of such proposed amendment, and such amendment shall be conclusively deemed not material if no Mortgagee so notified objects to such proposed amendment within thirty ( 30) days of the date such notices are mailed and if such notice advises the Mortgagees of the time limitation contained in this sentence. 11 .2 By Developer . Developer hereby reserves the right so long as Developer , The Estridge Group, Inc. , or any entity related to Developer, owns any Lot within and upon the Real Estate to make such amendments to this Declaration as may be deemed necessary or appropriate by Developer, without the approval of any other person or entity, provided that Developer shall not be entitled to make any amendment which has a materially adverse effect on the rights of any Mortgagee, nor which substantially impairs the benefits of this Declaration to any Owner or substantially increases the obligations imposed by this Declaration on any Owner. 11 . 3 Recording. Each amendment to the Declaration shall be executed by Developer only in any case where Developer has the right to amend this Declaration without any further consent or approval, and otherwise by the President or Vice President and Secretary of the Association; provided, that any amendment requiring the consent of Developer shall contain Developer ' s signed consent. All amendments shall be recorded in the Office of the Recorder of Hamilton County, Indiana, and no amendment shall become effective until so recorded . ARTICLE XII GENERAL PROVISIONS 12. 1 Right of Enforcement. Violation or threatened violation of any of the covenants , conditions or restrictions enumerated in this Declaration or in any subdivision plat of all or any part of the Real Estate now or hereafter recorded in the office of the Recorder of Hamilton County, Indiana, shall be grounds for an action by Developer, the Association, any Owner, and all persons or entities claiming under them, against the person or entity violating or threatening to violate any such covenants, conditions or restrictions. Available relief in any such action shall include recovery of damages or other sums due for such violation, injunctive relief against any such violation or threatened violation, declaratory relief and the recovery of costs and attorneys' fees incurred by any party successfully enforcing such covenants and restrictions ; provided, however, that neither Developer nor the Association shall be liable for damages of any kind to any person for failing to enforce or carry out any such covenants, conditions or restrictions. 0 12 .2 Delay or Failure to Enforce . No delay or failure on the part of any aggrieved party to invoke any available remedy with respect to any violation or threatened violation of any covenants, conditions or restrictions enumerated in this Declaration or in any subdivision plat of all or any part of the Real Estate shall be held to be a waiver by that party (or an estoppel of that party to assert) any right available to him upon the occurrence, recurrence or continuance of such violation or violations of such covenants, conditions or restrictions. 12 . 3 Duration. These covenants, conditions and restrictions and all other provisions of this Declaration (as the same may be amended from time to time as herein provided ) shall run with the land and shall be binding on all persons and entities from time to time having any right, title or interest in the Real Estate, or any part thereof, and on all persons claiming under them, until January 1 , 2007, and thereafter shall be automatically extended for successive periods of ten ( 10) years each, unless prior to the commencement of any such extension period, by a vote of a majority of the then Owners of Lots within and upon the Real Estate, it is agreed that this Declaration shall terminate in its entirety. 12.4 Severability. Invalidation of any of the covenants, restrictions or provisions contained in this Declaration by judgment or court order shall not in any way affect any of the other provisions hereof, which shall remain in full force and effect . 12. 5 Titles. The underlined titles preceding the various paragraphs and subparagraphs of this Declaration are for the convenience of reference only, and none of them shall be used as an aid to the construction of any provisions 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 . 12 .6 Applicable Law. This Declaration shall be governed , interpreted, construed and regulated by the laws of the State of Indiana. 12 .7 Annexation. At any time prior to December 31 , 1994, additional land within the tracts described in the attached Exhibit B may be annexed by Developer to the Real Estate (and from and after such annexation shall be deemed a part thereof for all purposes of this Declaration) by execution and recordation in the office of the Recorder of Hamilton County, Indiana, of a supplemental declaration by Developer; and such action shall require no approvals or action of the Owners. Subject to the provisions of paragraph 12 .8 hereof, additional residential property may be annexed to the Real Estate with the consent of two-thirds ( 2/3) of each class of members of the Association by the recording by the President or Vice President and Secretary of 19 the Association of a declaration applicable to the annexed Real Estate which incorporates therein the terms of this Declaration, as the same may be amended from time to time . 12 . 8 Sales Offices and Models. Notwithstanding anything to the contrary contained in this Declaration or any subdivision plat of the Real Estate now or hereafter recorded in the office of the Recorder of Hamilton County, Indiana, Developer, and any entity related to the Developer, during the Development Period, shall be entitled to construct, install, erect and maintain such facilities upon any portion of the Real Estate owned by Developer as , in the sole opinion of Developer , may be reasonably required or convenient or incidental to the development of the Real Estate and the sale of Lots and the construction of residences thereon. Such facilities may include, without limitation, storage areas, parking areas, signs, model residences, construction offices and sales offices. IN WITNESS WHEREOF, this Declaration has been executed by Developer as of the date first above written. i�ui) i•.;, r.,Yra r�)$ `ins•.`Cws� ESTRIDGE DEVELOPMENT CORP. , an Indiana corporation, Q id2 1Y\ 19 }n 2,42,fc.2.. Audits j P '" 0' Familton County By: g14 Z , Paul E. Estridge 1;r. Paoli / President STATE OF INDIANA ) COUNTY OF HAMILTON ) Before me, a Notary Public in and for the State of Indiana, personally appeared Paul E. Estridge, Sr. , the President of Estridge Development Corp. , an Indiana Corporation, who acknowledged the execution of the foregoing Declaration of Covenants, Conditions and Restrictions of Walden Pond for and on behalf of said corporation. WITNESS my hand and Notarial Seal this 15 day of January 1988. am c My Commission Expires: Pr(:)-4(f( ne Na e l • Residing in M,c or\ County This instrument was prepared by James J. Nelson, 3021 E. 98th Street, Suite 220, Indianapolis, Indiana 46280 1raft 02/08/88 20 • A part of the Southwest Quarter of the Northwest Quarter of Section 7, Township 17 North, Range 4 East in Hamilton County, Indiana, more particularly described as follows: Ccmncing at the southwest corner of said Quarter-Quarter Section; thence North 00-04'45" West along the west line of said Quarter-Quarter Section 479.29 feet to the point of beginning; thence continuing North 00-04'45' West along said west line 361.49 feet; thence North 89-35'30" East 203.99 feet; thence North 60-07'37" East 50.08 feet to a point on a curve concave Northeasterly having a central angle of 19-45'57" and a radius of 185.00 feet; thence Southeasterly along said curve an arc distance of 63.82 feet (said arc being subtended by a chord having a bearing of South 36-10'13" East and a length of 63.50 feet) to the point of tangency of said curve; thence South 46-03'11" East 57.98 feet to the point of curvature of a curve concave Northeasterly having a central angle of 81-19'16" and a radius of 15.00 feet; thence Southeasterly and Easterly along said curve an arc distance of 21.29 feet (said arc being subtended by a chord having a bearing of South 86"42'49' East and a length of 19.55 feet to the point of reverse curvature of a curve concave Southeasterly, having a central angle of 01-52'01' and a radius of 400.00 feet; thence Northeasterly along said curve an arc distance of 13.03 feet (said arc being subtended by a chord having a bearing of North 53-33'34' East and a length of 13.03 feet); thence South 35-30'26' East 50.00 feet to a point on a curve concave Easterly having a central angle of 94'17'22' and a radius of 15.00 feet; thence Southerly along said curve an arc distance of 24.68 feet (said arc being subtended by a chord having a bearing of South 07-20'53" West and a length of 21.99 feet) to the point of reverse curvature of a curve concave Southwesterly having a central angle of 39-43'03" and a radius of 205.00 feet; thence Southerly along said curve an arc distance of 142.11 feet (said arc being subtended by a chord having a bearing of South 19-56'17" East and a length of 139.28 feet) to the point of tangency of said curve; thence South 00"04'45"East • 94.20 feet to the point of curvature of a curve concave Easterly having a central angle of 07-26'11" and a radius of 165.00 feet; thence Southerly along said curve an arc distance of 21.42 feet (said arc being subtended by a chord having a bearing of South 03-47'50" East and a length of 21.40 feet); thence South 82-29'04' West 50.00 feet to a point on a curve concave Southwesterly having a central angle of 82-33'49" and a radius of 15.00 feet; thence Northerly and Westerly along said curve an arc distance of 21.62 feet (said arc being subtended by a chord having a bearing of North 48-47'50' West and a length of 19.79 feet) to the point of tangency of said curve; thence South 89-55'15' West 366.93 feet to the point of beginning, containing 3.28 acres, more or less; subject to all highways, rights-of-way and easements. Also: Exhibit A - Page 1 A part of the Southwest Quarter of the Northwest Quarter of Section 7, Township 17 North, Range 4 East in Hamilton County, Indiana, more particularly described as follows: Beginning at the southwest corner of said Quarter-Quarter Section; thence North 00"04'45" West along the west line of said Quarter-Quarter Section 479.29 feet; thence North 89-55'15" East 366.93 feet to the point of curvature of a curve concave Southwesterly having a central angle of 82-33'49" and a radius of 15.00 feet; thence Easterly and Southerly along said curve an arc distance of 21.62 feet (said arc being subtended by a chord having a bearing of South 48-47'50" East and a length of 19.79 feet) ; thence North 82-29'04" East 50.00 feet to a point on a curve concave Easterly having a central angle of 07-26'11" and a radius of 165.00 feet; thence Northerly along said curve an arc distance of 21.42 feet (said arc being subtended by a chord having a bearing of North 03-47'50" West and a length of 21.40 feet) to the point of tangency of said curve; thence North 00-04'45" West 94.20 feet to the point of curvature of a curve concave Southwesterly having a central angle of 39-43'03" and a radius of 205.00 feet; thence Northerly along said curve an arc distance of 142.11 feet (said arc being subtended by a chord having a bearing of North 19-56'17" West and a length of 139.28 feet) to the point of reverse curvature of a curve concave Easterly having a central angle of 94-17'22" and a radius of 15.00 feet; thence Northerly along said curve an arc distance of 24.68 feet ( said arc being subtended by a chord having a bearing of North 07-20'53m East and a length of 21.99 feet); thence North 35'30'26" West 50.00 feet to a point on a curve concave Southeasterly having a central angle of 01-52'01" and a radius of 400.00 feet; thence Southwesterly along said curve an arc distance of 13.03 feet (said arc being subtended by a chord having a bearing of South 53-33'34" West and a length of 13.03 feet) to the point of reverse curvature of a curve concave Northeasterly having a central angle of 81-19116" and a radius of 15.00 feet; thence Westerly along said curve an arc distance of 21.29 feet (said arc being subtended by a chord having a bearing of North 86-42'49" West and a length of 19.55 feet to the point of tangency of said curve; thence North 46-03'11" West 57.98 feet to the point of curvature of a curve concave Northeasterly having a central angle of 19-45'57" and a radius of 185.00 feet; thence Northwesterly along said curve an arc distance of 63.82 feet (said arc being subtended by a chord having a bearing of North 36-10'13' West and a length of 63.50 feet); thence North 69-42'42' East 96.40 feet; thence North 30'04'54" East 89.88 feet; thence South 89-08'34" East 323.73 feet; thence South 89-12'11' East 40.59 feet; thence North 80-33'34" East 19.72 feet; thence North 80-24'32" East 122.02 feet; thence South 88-14'42" East 37.53 feet; thence South 45'36'51' East 179.83 feet; thence South 13-29'47" West 176.98 feet; thence South 02-49'55" West 59.52 feet; thence South 01-30'09" West 175.47 feet; thence South 70'15'56" East 48.04 feet; thence South 75-38'38" East 120.51 feet; thence North 83-25'01" East 50.00 feet to a point on a curve concave Westerly having a central angle of 03-25'08" and a radius of 210.00 feet; thence Southerly along said curve an arc distance of 12.53 feet (said arc being subtended by a chord having a bearing of South 04-52'26" East and a length of 12.53 feet); thence South 89-58'54" East 134.65 feet to the east line of said Quarter-Quarter Section; thence South 00-01'06" West along said east line 422.41 feet to the southeast corner of said Quarter-Quarter Section; thence North 89-27'47" West along the south line of said Quarter-Quarter Section 1350.23 feet to the point of beginning, containing 21.97 acres, more of less; subject to all highways, rights-of-way and easements. Exhibit A - Page 2 Part of the Southwest Quarter of the Northwest Quarter of Section 7, Township 17 North, Range 4 East in Hamilton County, Indiana, more particularly described as follows: Beginning at the Southwest corner of said Quarter Quarter Section; thence along the West line thereof North 00'04'45" West 1319.01 feet to the Northwest corner of said Quarter Quarter Section; thence along the North line of said Quarter Quarter Section South 89'31 ' 32" East 1352.46 feet to the Northeast corner of said Quarter Quarter Section; thence along the East line of said Quarter Quarter Section and the West line of Holaday Hills and Dales - First Section, the plat of which was recorded in DeIddRecorianado135, pale 413 in the Office of the Recorder of Hamilton County , 00 01 '06" West 1320.46 feet to the Southeast corner of said Quarter Quarter Section; thence along the South line of said Quarter Quarter Section North 89'27'47' West 1350.23 feet to the Point of Beginning, containing 40.94 acres, more or less. Less the real estate described on Exhibit A pages 1 and 2 to this Declaration of Covenants, Conditions and Restrictions of Walden Pond. EXHIBIT B