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DECLARATION OF COVENANTS AND RESTRICTIONS
WINDEMERE J.
This Declaration, made as of the
1991, by Windemere Corporation,
("Declarant")
day of _
an Indiana
W I T N E S S E T H:
WHEREAS, the following facts are true:
Corporation,
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 subdivision to be
known as Windemere.
B. Declarant has or will construct certain improvements and
amenities which shall constitute Community Area.
C. Declarant desires to provide for the preservation and
enhancement of the property values, amenities and opportunities in
Windemere and for the maintenance of the Tract and the improvements
thereon, and to this end desires to subject the Tract to the
covenants, restrictions, easements, charges and liens hereinafter
set forth, each of which is for the benefit of the Lots and lands
in the Tract and the future owners thereof.
D. Declarant deems it desirable, for the efficient
preservation of the values and amenities in Windemere, to create an
agency to which may be delegated and assigned the powers of owning,
maintain 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 Lots.
E. Declarant has incorporated under the laws of the State of
Indiana a not -for -profit corporation known as Windemere Homeowners
Association, Inc. for the purpose of exercising such functions.
NOW, THEREFORE, Declarant and the Consenting 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,
leased, rented, used, occupied and improved, are subject to the
following Restrictions, all of which are declared to be in
furtherance of a plan for the improvement and sale of Lots in the
tract, and are established and agreed upon for the purpose of
enhancing and protecting the value, desirability and attractiveness
of the Tract as a whole and of each of Residences, Lots and lands
situated therein. The Restrictions shall run with the land and
.shall be binding upon Declarant, its respective successors and
assigns, and upon the parties having or acquiring any interest in
the Tract or any part or parts thereof subject to such
Restrictions. The Restrictions shall inure to the benefit of
Declarant and its respective successors in title to the Tract or
any part or parts thereof. J
1. Definitions. The following terms, as used in this
Declaration, unless the context clearly requires otherwise, shall
mean the following:
(a) "Architectural Review Board" means that entity
established pursuant to Paragraph 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 as declared by this
Declaration, the Articles or the By -Laws.
(d) "Board of Directors" means the governing body of the
Corporation elected by the Members in accordance with the By -
Laws.
(e) "By -Laws" means the Code of By -Laws of the
Corporation, as amended from time to time.
( f ) "Windemere" means, the name by which the Tract shall
be known.
(g) "Community Area" means (i) the Lake Control
Structures (ii) the Drainage System, (iii) the Lakes and Lake
Access Easements, (iv) the Entry Ways, (v) the Roadways to the
extent not maintained by public authority, (vi) any utility
service lines or facilities not maintained by a public utility
company or governmental agency that 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 (3) conveyed to or acquired by the Corporation,
together with all improvements thereto, that are intended to
be devoted to the use or enjoyment of some, but not
necessarily all, of the Owners of Lots.
(h) "Corporation" means Windemere Homeowners
Association, Inc., an Indiana not -for -profit corporation, its
successors and assigns.
(i) "Declarant" means Windemere Corporation, its
successors and assigns to its interest in the Tract other than
owners purchasing Lots or Residences by deed from Declarant
(unless the conveyance indicated an intent that the grantee
assume the rights and obligations of Declarant).
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d) "Drainage Board" means the Hamilton County, Indiana
Drainage Board, its successors or assigns.
(k) "Drainage System" means the open drainage ditches
and swales, the subsurface drainage tiles, pipes and
structures, the dry and wet retention and/or detention areas,
and the other structures, fixtures, properties, equipment and
facilities (excluding the Lakes and the Lake Control
Structures) located in the Tract and designed for the purpose
of controlling, retaining or expediting the drainage of
surface and subsurface waters from, over and across the Tract,
including but not limited to those shown or referred to on the
Plat, all or part of which may be established as legal drains
subject to the jurisdiction of the Drainage Board.
(1) "Entry Ways" means the structures constructed as an
entrance to Windemere or a part thereof (exclusive of the
street pavement, curbs and drainage structures and tiles), the
traffic island, if any, and the grassy area surrounding such
structures, whether located within or without the Tract.
(m) "Initial Capital Assessment" means the initial
assessment for the Reserve for Replacements required by
Paragraph 11(e).
(n) "Landscaping Easement" means a portion of a Lot
denoted on the Plat as an area to be landscaped and maintained
by the Corporation.
(o) "Lake" means any lake as depicted on the Plat and
"Lakes" means all such lakes. A numerically designated Lake
means the Lake so designated by such number on the Plat.
(p) "Lake Access Easement" means an area designated on
the Plat as a means of access to a Lake or a Lake Control
Structure.
(q) "Lake Control Structures" means the earthen dam
constructed to establish the Lake and the structures, out -
falls, pipes and appurtenances associated therewith or
intregal thereto, including but not limited to those depicted
on the Plat, all or part of which may be established as a
legal drain subject to the jurisdiction of the Drainage Board.
(r) "Lot" means a platted lot as shown on the Plat.
(s) "Lot Development Plan" means (i) a site plan
prepared by a licensed engineer or architect, (ii) foundation
plan and proposed finished floor elevations, (iii) building
plans, including elevation and floor plans, (iv) material
plans and specifications, (v) landscaping plan, and (vi) all
other data or information that the Architectural Review Board
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may request with respect to the improvement or alteration of
a Lot (including but not limited to the landscaping thereof)
or the construction or alteration of a Residence or other
structure or improvement thereon.
(t) "Maintenance Costs" means all of the costs necessary
to keep the facilities to which the term applies operational
and in good condition, including but not limited to the cost
of all upkeep, maintenance, repair, replacement of all or any
part of any such facility, payment of all insurance with
respect thereto, all taxes imposed on the facility and on the
underlying land, leasehold, easement or right-of-way, and any
other expense related to the continuous maintenance, operation
or improvement of the facility.
(u) "Member" means a Class A or Class B member of the
Corporation and "Members" means Class A and Class B members of
the Corporation.
(v) "Mortgagee" means the holder of a first mortgage on
a Residence.
(w) "Owner" means a Person, including Declarant, who at
the time has or is acquiring any interest in a Lot except a
Person who has or is acquiring such an interest merely as
security for the performance of an obligation.
(x) "Person" means an individual, firm, corporation,
partnership, association, trust or other legal entity, or any
combination thereof.
(y) "Plat" means the final secondary plat of the Tract
recorded in the Office of the Recorder of Hamilton County,
Indiana.
(z) "Reserve for Replacements" means a fund established
and maintained by the Corporation to meet the cost of periodic
maintenance, repairs, renewal and replacement of the Community
Area.
(aa) "Residence" means any structure intended
exclusively for occupancy by a single family together with all
appurtenances thereto, including private garage and
outbuildings and recreational facilities usual and incidental
to the use of a single family residential lot.
(bb) "Restrictions" means the covenants, conditions,
easements, charges, liens, restrictions, rules and regulations
and all other provisions set forth in this Declaration and the
Register of Regulations, as the same may from time to time be
amended.
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(cc) "Register of Regulations" means the document
containing rules, regulations, policies, 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" mans all or any part of a street, land or
road (including the right-of-way) designed to provide access
to one or more Lots which has not been accepted for
maintenance by a public authority.
(ee) "Tract" means the land described in Exhibit A.
(f f ) "Zoning Authority" with respect to any action means
the Carmel Building Commissioner or, where he lacks the
capacity to take action, or fails to take such action, the
governmental body or bodies, administrative or judicial, in
which authority is vested under applicable law to hear appeals
from, or review the action, or the failure to act, of the
building commissioner.
2. Declaration. Declarant hereby expressly declares that the
tract shall be held, transferred, and occupied subject to the
Restrictions. The Owner of any Lot subject to these Restrictions,
by (i) acceptance of a deed conveying title thereto, or the
execution of a contract for the purchase thereof, whether from
Declarant or a subsequent Owner of such Lot, or (ii) by the act of
occupancy of any Lot, shall accept such deed and execute such
contract subject to each Restriction and agreement herein
contained. By acceptance of such deed or execution of such
contract, each Owner acknowledges the rights and powers of
Declarant and of the Corporation with respect to these
restrictions, and also for itself, its heirs, personal
representatives, successors and assigns, covenants, agrees and
consents to and with Declarant, the Corporation, and the Owners and
subsequent Owners of each of the Lots affected by these
Restrictions to keep, observe, comply with and perform such
Restrictions and agreement.
3. The Lakes. Declarant shall convey title to the Lakes to
the Corporation. The Corporation shall be responsible for
maintaining the Lakes. The Maintenance Costs of the Lakes shall be
assessed as a General Assessment against all Lots 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 part of,
or abuts, his lot and shall keep that portion of a Lake abutting
his Lot free of debris and otherwise in reasonably clean condition.
No boats shall be permitted upon any part of a Lake and no dock,
pier, wall or other structure may be extended into a Lake without
the prior written consent of the Architectural Review Board and
such governmental authority as may have jurisdiction thereover. No
swimming will be permitted in a Lake except if and to the extent
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authorized by the Board of Directors. Each Owner of a Lot abutting
a Lake shall indemnify and hold harmless Declarant, the Corporation
and each other Owner against all loss or damage incurred as a
result of injury to any Person or damage to any property, or as a
result of any other cause or thing, arising from or related to use
of , or access to, a Lake by any Person who gains access thereto
from, over or across such Owner's Lot. Declarant shall have no
liability to any Person with respect to the Lakes, the use thereof
or access thereto, or with respect to any damage to any Lot
resulting from a Lake or the proximity of a Lot thereto, including
loss or damage from erosion.
4. The Lake Control Structures. Declarant shall convey title
to the Lake Control Structures to the Corporation. The Corporation
shall be responsible for maintaining the Lake Control Structures to
the extent not maintained by the Drainage Board, and the
Maintenance costs thereof shall be assessed as a General Assessment
against all Lots subject to assessment as follows: two-thirds
(2/3) of such Maintenance Costs shall be allocated among Lots
subject to assessment for maintenance of Lakes as provided in
Paragraph 3, and one-third of such Maintenance Costs shall be
allocated among Lots not subject to assessment for maintenance of
the Lakes.
5. Drainage System. Declarant shall maintain the Drainage
System in good condition satisfactory for the purpose for which it
was constructed until the earlier of December 31, 1991, or the date
the Drainage System is accepted as a legal drain by the Drainage
Board. After the earlier of such dates, the Corporation shall
maintain the Drainage System to the extent not maintained by the
Drainage Board and the Maintenance Costs thereof shall be assessed
against all Lots subject to assessment serviced by that part of the
Drainage System with respect to which Maintenance Costs are
incurred. Each Owner shall be individually liable for the cost of
maintenance of any drainage system located entirely upon his Lot
which is devoted exclusively to drainage of his Lot and is not
maintained by the Drainage Board.
6. Maintenance of Entry Ways and Landscaping Easements. The
Corporation shall maintain the Entry Ways and the Landscaping
Easements and all improvements and plantings thereon, and the
Maintenance Costs thereof shall be assessed as a General Assessment
against all Lots subject to assessment. Grass, trees, shrubs and
other plantings located on an Entry Way or a Landscaping Easement
shall be kept neatly cut, cultivated or trimmed as reasonably
required to maintain an attractive entrance to Windemere, or a part
thereof, or a planting area within Windemere. All entrance signs
located on an Entry Way shall be maintained at all times in good
and sightly condition appropriate to a first-class residential
subdivision.
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7. Roadways.
(a) Declarant shall maintain each Roadway in good condition
satisfactory for the purpose for which it was constructed until the
earlier of December 31, 1993, or the date on which Residences have
been constructed on seventy-five percent (75%) of the Lots fronting
such Roadway, at which time responsibility for the maintenance
thereof shall be assumed by the Corporation. The Maintenance Costs
incurred by the Corporation in connection with maintaining a
Roadway shall be assessed against all Lots whose principal means of
vehicular access to a public right-of-way is over and across such
Roadway. No parking shall be permitted within the right-of-way of
any Roadway.
(b) The Corporation shall maintain the stop sign posts and
street sign posts located in Windemere, and the Maintenance Costs
thereof shall be assessed as a General Assessment against all Lots
subject to assessment. The Corporation shall indemnify and hold
harmless the Board of Commissioners of Hamilton County with respect
to any liability incurred by such Board in connection with or as a
result of the existence of such posts in Windemere.
8. 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 Windemere than the
number of original Lots depicted on the Plat. Notwithstanding any
provision in the applicable zoning ordinance to the contrary, no
Lot may be used for any "Special Use" that is not clearly
incidental and necessary to single family dwellings. No home
occupation shall be conducted or maintained on any Lot other than
one which does not constitute a "special use" and which is
incidental to a business, profession or occupation of the owner or
occupant of such Lot and which is generally or regularly conducted
at another location which is away from such Lot. No signs of any
nature, kind or description shall be erected, placed, or permitted
to remain on any Lot advertising a permitted home occupation.
(b) Size of Residence. Except as otherwise provided herein,
no residence may be constructed on any Lot unless such Residence,
exclusive of open porches, attached garages and basements, shall
have a ground floor area of 3,000 square feet if a one-story
structure, or 1,600 square feet if a higher structure, but in the
case of a building higher than one story, there must also be at
least 800 square feet in addition to the ground floor area and the
total floor area shall not be less than 3,000 square feet.
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(c) Temporary Structures. No trailer, shack, tent, boat,
basement, garage or other outbuilding may be used at any time as a
dwelling, temporary or permanent, nor may any structure of a
temporary character be used as a dwelling.
(d) Building Location and Finished Floor Elevation. No
building may be erected between the building line shown on 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 (20) feet to any rear Lot line. No accessory
building may be erected in front of a main building or in the
required front yard on the side of a corner lot unless the
accessory building is attached to the main building by a common
wall. No accessory building which is not attached to the main
building by a common wall or any swimming pool, tennis court or
other improvement may be erected or installed between the rear of
the main building and 106th Street, unless a variance therefor is
obtained from the Carmel board of Zoning Appeals and approval is
granted by the Architectural Review Board. A minimum finished
floor elevation, shown on the development plan for Windemere, has
been established for each Lot depicted on the Plat and no finished
floor elevation with the exception of flood protected basements
shall be constructed lower than said minimum without the written
consent of the Architectural Review Board. Demonstration of
adequate storm water drainage in conformity with both on -Lot and
overall project drainage plans shall be a prime requisite for
alternative finished floor elevations. Before construction
commences, the finished floor elevation shall be physically checked
on the Lot and certified by a licensed professional engineer or a
licensed land surveyor.
(e) Driveways. All driveways shall be paved and maintained
dust free.
(f) Yard Lights. If streets lights are not installed in
Windemere, then each Person who undertakes to construct a Residence
on a Lot shall install and maintain a light in operable condition
on such Lot at a location, having a height and of a type, style and
manufacture approved by the Architectural Review Board prior to the
installation thereof. Each such light fixture shall also have a
bulb of a maximum wattage approved by Architectural Review Board to
insure uniform illumination on each Lot and shall be equipped with
a photo electric cell or similar device to insure automatic
illumination from dusk to dawn each day.
(g) Storage Tanks. Any gas or oil storage tanks used in
connection with a Lot shall be either buried or located in a
Residence such that they are completely concealed from public view.
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(h) Construction and Landscaping. All construction upon,
landscaping of and other improvement to a Lot shall be completed
strictly in accordance with the Lot Development Plan approved by
the Architectural Review Board. All landscaping specified on the
landscaping plan approved by the Architectural Review Board shall
be installed on the Lot strictly in accordance with such approved
plan within 30 days following substantial completion of the
Residence unless the Board agrees to a later landscaping completion
date. Unless a delay is caused by strikes, war, court injunction
or acts of God, the Owner of any Lot which on the date of purchase
is not improved with a Residence shall commence construction of a
Residence upon the Lot within two (2) years from the date the Owner
acquired title thereto and shall complete construction of such
Residence within one (1) year after the date of commencement of the
building process, but in no event later than three (3) years after
the date the Owner acquired title to the Lot unless such Lot is
adjacent to a Lot upon which the Owner has constructed a Residence
in which such Owner permanently resides. If the Owner fails to
commence or complete construction of a Residence within the time
periods specified herein, or if the Owner should, without
Declarant's written approval, sell, contract to sell, convey, or
otherwise dispose of, or attempt to sell, convey or otherwise
dispose of, the Lot before completion of construction of a
Residence on the Lot, then, in any of such events, Declarant may:
(i) re-enter the lot and divest the Owner of title
thereto by tendering to the Owner or to the Clerk of the
Circuit Court of Hamilton County the lesser of (i) the same
net dollar amount as was received by Declarant from such Owner
as consideration for the conveyance by Declarant of the Lot,
together with such actual costs, if any, as the Owner may
prove to have been incurred in connection with the
commencement of construction of a Residence on the Lot and
(ii) the then fair market value of the Lot, as determined by
averaging two (2) appraisals made by qualified appraisers
appointed by the Judge of the Hamilton County Circuit or
Superior Court.
(ii) obtain injunctive relief to force the Owner to
proceed with construction of any residence, a Lot Development
Plan for which has been approved by the Architectural Review
Board upon application by such Owner; or
(iii) pursue such other remedies at law or in equity as
may be available to Declarant.
The failure of the Owner of a Lot to apply for approval of, or
receive approval from, the Architectural Review Board of a Lot
Development Plan shall not relieve such Owner from his obligation
to commence and complete construction of a Residence upon the Lot
within the time periods specified herein. For the purposes of this
sub -paragraph (h), construction of a Residence will be deemed
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"completed" when the exterior of the Residence (including but not
limited to the foundation, walls, roof, windows, entry doors,
gutters, downspouts, exterior trim, paved driveway and landscaping)
has been completed in conformity with the Lot Development Plan.
(i) Mailboxes. All mailboxes installed upon Lots shall be
uniform and shall be of a type, color and manufacture approved by
the Architectural Review Board. Such mailboxes shall be installed
upon posts approved as to type, size and location by the
Architectural Review Board.
(j) Septic Systems. No septic tank, absorption field or any
other on -site sewage disposal system (other than a lateral main
connected to a sanitary sewage collection system operated by the
Clay Township Regional Waste District or a successor public agency
or public utility) shall be installed or maintained on any Lot.
(k) Water Systems. No private or semi -private water supply
system may be located upon any Lot which is not in compliance with
regulations or procedures adopted or established by the Indiana
State Board of Health, or other civil authority having
jurisdiction. To the extent that domestic water service is
available from a water line located within 200 feet of the lot line
maintained by a public or private utility company, each Owner shall
connect to such water line to provide water for domestic use on the
Lot and shall pay all connection, availability or other charges
lawfully established with respect to connections thereto.
Notwithstanding the foregoing, an Owner may establish, maintain and
use an irrigation water well on his Lot.
(1) Drainage. In the event storm water drainage from any Lot
or Lots flows across another Lot, provision shall be made by the
Owner of such Lot to permit such drainage to continue, without
restriction or reduction, across the downstream Lot and into the
natural drainage channel or course, although no specific drainage
easement for such flow of water is provided on the Plat. To the
extent not maintained by the Drainage Board, "Drainage Easements"
reserved as drainage swales shall be maintained by the Owner of the
Lot upon which such easements are located such that water from any
adjacent Lot shall have adequate drainage along such swale. Lots
within Windemere may be included in a legal drain established by
the Drainage Board. In such event, each Lot in Windemere will be
subject to assessment by the Drainage Board for the costs of
maintenance of the portion of the Drainage System and the Lake
Control Structures included in such legal drain, which assessment
will be a lien against the Lot. The elevation of a Lot shall not
be changed so as to affect materially the surface elevation or
grade of surrounding Lots. Perimeter foundation drains, sump pump
drains, downspouts and water softeners, shall be connected whenever
feasible into a subsurface drainage tile. Downspouts and water
softener drains shall be designed to disperse runoff for overland
flow to street or swale collection systems. Each Owner shall
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maintain the subsurface drains and tiles located on his Lot and
shall be liable for the cost of all repairs thereto or replacements
thereof.
9. Maintenance of Lots.
(a) Vehicle Parking. No camper, motor home, truck, trailer,
boat or disabled vehicle may be parked or stored overnight or
longer on any Lot in open public view.
(b) Signs. Except for such signs as Declarant may in its
absolute discretion display in connection with the development of
Windemere and the sale of Lots therein and such signs as may be
located in the Community Area, no sign of any kind shall be
displayed to the public view on any Lot except that one sign of not
more than four (4) square feet may be displayed at any time for the
purpose of advertising the property for sale or for rent, or may be
displayed by a builder to advertise the property during
construction and sale.
(c) Fencing. No fence, wall, hedge or shrub planting higher
than eighteen (18) inches shall be permitted between the front
property line and the front building set -back line except where
such planting is part of Residence landscaping and the prime root
thereof is within four (4) feet of the Residence. Trees shall not
be deemed "shrubs" unless planted in such a manner as to constitute
a "hedge". No chain link fence shall be erected upon a Lot if it
would be visible from a street. All fencing shall be uniform in
height, style and color and substantially similar in material. No
fence shall be erected or maintained on or within any Landscaping
Easement except such as may be installed by Declarant and
subsequently replaced by the Corporation in such manner as to
preserve the uniformity of such fence. No fence may be erected on
a Lot without the prior approval of the Architectural Review Board,
which may establish further restrictions with respect to fences,
including limitations on (or prohibition of) the installation of
fences in the rear yard of a Lot abutting a Lake and design
standards for fences. All fences shall be kept in good repair. No
fence, wall, hedge or shrub planting which obstructs sight lines at
elevations between two (2) and six (6) feet above the street shall
be placed or permitted to remain on any corner lot within the
triangular area formed by the street property lines and a line
connecting points 25 feet from the intersection of said street
lines, or in the case of a street line with the edge of a driveway
pavement or alley line. No tree shall be permitted to remain
within such distances of such intersections unless the foliage line
is maintained at sufficient height to prevent obstruction of such
sight lines.
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(d) vegetation. An Owner shall not permit the growth of
weeds and volunteer trees and bushes on his Lot, and shall keep his
Lot reasonably clear from such unsightly growth at all times. If
an Owner fails to comply with this Restriction, the Architectural
Review Board shall cause the weeds to be cut and the Lot cleared of
such growth at the expense of the Owner thereof and the
Architectural Review Board shall have a lien against the cleared
Lot for the expense thereof.
(e) Nuisances. No noxious or offensive activity shall be
carried on upon any Lot nor shall anything be done thereon which
may be, or may become, an annoyance or nuisance to the
neighborhood. Barking dogs shall constitute a nuisance.
(f) Garbage and Refuse Disposal. No Lot shall be used or
maintained as a dumping ground for trash. Rubbish, garbage or
other waste shall be kept in sanitary containers out of public
view. All equipment for storage or disposal of such materials
shall be kept clean and sanitary.
(g) Livestock and Poultry. No animals, livestock or poultry
of any kind shall be raised, bred or kept on any Lot, except that
dogs, cats or other household pets may be kept provided that they
are not kept, bred or maintained for any commercial purpose. The
owners of such permitted pets shall confine them to their
respective Lots such that they will not be a nuisance. Owners of
dogs shall so control or confine them so as to avoid barking which
will annoy or disturb adjoining Owners.
(h) Outside Burning. No trash, leaves, or other materials
shall be burned upon a Lot if smoke therefrom would blow upon any
other Lot and, then, only in acceptable incinerators and in
compliance with all applicable legal requirements.
(i) Antennas and Receivers. No satellite receiver or down-
link shall be permitted on any Lot, nor shall any exterior antenna
be permitted thereon without the prior written consent of the
Architectural Review Board. The Architectural Review Board shall
not be obligated to give its consent to the installation of any
exterior television antenna if television reception is available
from under -ground cable connections serving the Lot or to the
installation of any other exterior antenna if all Owners of Lots
within 200 feet of the Lot upon which the proposed antenna would be
erected do not consent in writing to the installation thereof.
(j) Exterior Lights. No exterior lights shall be erected or
maintained between the building line and rear lot line so as to
shine or reflect directly upon another Lot.
(k) Electric Bug Killers. Electric Bug killers, "zappers"
and other similar devices shall not be installed at a location or
locations which will result in the operation thereof becoming a
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nuisance or annoyance to other Owners and shall only be operated
when outside activities require the use thereof and not
continuously.
(1) Tennis Courts. No tennis court shall be installed or
maintained on any Lot which abuts a Lake.
(m) Swimming Pools. No swimming pool shall be located on a
Lot abutting within 35 feet from the water's edge at normal pool
elevation as established on the engineering design plans for the
Lake filed with the Zoning authority.. If a variance 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 a
mechanical pool cover. If the Board imposes such requirement, then
a mechanical pool cover of a type and manufacture approved by the
Architectural Review Board shall be installed by the Owner in
compliance with all applicable legal requirements established by
the Zoning Authority as a condition to such variance, and all
requirements established by the Architectural Review Board.
10. Windemere Homeowners Association. Inc.
(a) MembershiR. 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 a Person would realize
upon his security and become an Owner, he shall then be subject to
all the requirements and limitations imposed by this Declaration on
other Owners, including those provisions with respect to the
payment of Assessments.
(b) Powers. The Corporation shall have such powers as are
set forth in this Declaration and in the Articles and By -Laws,
together with all other powers that belong to it by law.
(c) Classes of Members. The Corporation shall have three (3)
classes of members as follows:
Class A. Every Person who is an Owner shall be a Class
A Member.
Class B. Declarant shall
Person, except a successor
interest of Declarant in the
membership in the Corporation.
terminate upon the resignation
of the Lots in the Tract have
1995, whichever first occurs.
13
be a Class B member. No other
to substantially all of the
Tract, shall hold a Class B
The Class B membership shall
of the Class B member, when all
been sold, or on December 31,
Associate Members. Individuals who are appointed by any
Member which is not a natural person pursuant to the
provisions of the Articles shall be Associate Members.
(d) Voting and Other Rights of Members. The voting and other
rights of Members shall be as specified in the Articles and By -
Laws.
(e) Reserve for Replacements. The Board of Directors shall
establish and maintain the Reserve for Replacements by the
allocation and payment to such reserve fund of an amount determined
annually by the Board to be sufficient to meet the cost of periodic
maintenance, repairs, renewal and replacement of the Community
Area. In determining the amount, the Board shall take into
consideration the expected useful life of the Community Area,
projected increases in the cost of materials and labor, interest to
be earned by such fund and the advise of Declarant or such
consultants as the Board may employ. The Reserve for Replacements
shall be deposited in a special account with a lending institution
the accounts of which are insured by an agency of the United States
of America or may, in the discretion of the Board, be invested in
obligations of, or fully guaranteed as to principal by, the United
States of America. 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 granting of easements
for public utilities or other public purposes consistent with the
intended use of the Community Area shall not be deemed a transfer
for the purposes of this clause); (ii) fail to maintain fire and
extended coverage on insurable Community Area on a current
replacement cost basis in an amount at least one hundred percent
(100%) of the insurable value (based on current replacement cost);
(iii) use hazard insurance proceeds for losses to any Community
Area for other than the repair, replacement or reconstruction of
the Community Area; (iv) change the method of determining the
obligations, assessments, dues or other charges that may be levied
against the Owner of a Residence; (v) by act or omission change,
waive or abandon any scheme of regulations or their enforcement
pertaining to the architectural design or the exterior appearance
of Residences, or the maintenance and up -keep of the Community
Area; or (vi) fail to maintain the Reserve for Replacements in the
amount required by this Declaration.
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(g) Mergers. Upon a merger or consolidation of another
corporation with the Corporation, its properties, rights and
obligations may, is provided in its articles of incorporation, by
operation of law be transferred to another surviving or
consolidated corporation or, alternatively, the properties, rights
and obligations of another corporation may by operation of law be
added to the properties, rights and obligations of the Corporation
as a surviving corporation pursuant to a merger. The surviving or
consolidated corporation may administer the covenants and
restrictions established by this Declaration within the Tract
together with the covenants and restrictions established upon any
other properties as one scheme. No other merger or consolidation,
however, shall effect any revocation, change or addition to the
covenants established by this Declaration within the Tract except
as hereinafter provided.
(h) Termination of Class B Membership. Wherever in this
Declaration the consent, approval or vote of the Class B member is
required, such requirement shall cease at such time as the Class B
membership terminates, but no such termination shall affect the
rights and powers of Declarant set forth in Paragraphs 14(b),
14(f), 15 or 19(b).
11: Assessments.
(a) Creation of the Lien and Personal Obligation of
Assessments. Declarant hereby covenants, and each Owner of any Lot
by acceptance of a deed thereto, whether or not it shall be so
expressed in such deed, is deemed to covenant and agree, to pay to
the Corporation the following: (1) General Assessments, (2)
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.
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(1) Lots Generally. Each Lot owned by a
person other than Declarant shall be assessed at a
uniform rate without regard to whether a Residence
has been 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
construction thereon of Residences which shall be
subject to assessment as provided in Clause (1)
above.
(3) Change in Basis. The basis for
assessment may be changed with the assent of the
Class B member and of (i) two-thirds (2/3) of the
Class A members (excluding Declarant) or (ii) two-
thirds (2/3) of the Mortgagees (based on one vote
for each first mortgage owned) who are voting in
person or by proxy at a meeting of such members
duly called for this purpose.
(iii) Method of Assessment. By a vote of a majority of
the Directors, the Board of Directors shall, on the basis
specified in subparagraph (ii) , fix the General Assessment for
each assessment year of the Corporation at an amount
sufficient to meet the obligations imposed by this Declaration
upon the Corporation. The Board of Directors shall establish
the date(s) the General Assessment shall become due, and the
manner in which it shall be paid.
(iv) Allocation of Assessment. The cost of maintaining,
operating, restoring or replacing the Community Area has been
allocated in this Declaration among Owners of Lots on the
basis of the location of the lands and improvements
constituting the Community Area and the intended use thereof.
In determining the General Assessment, costs and expenses
which in accordance with the provisions of this Declaration
are to be borne by all Owners shall first be allocated to all
Owners. Costs and expenses which in accordance with the
provisions of this Declaration are to be borne by the Owners
of certain Lots shall then be allocated to the Owners of such
Lots. The provisions of subparagraph (ii) for uniform
assessment shall not be deemed to require that all assessments
against vacant Lots or Lots improved with comparable types of
Residences be equal, but only that each Lot be assessed
uniformly with respect to comparable Lots subject to
assessment for similar costs and expenses.
16
(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), (ii) the date a
Residence constructed on the Lot has been certified for occupancy
by the Zoning Authority or (iii) the date a Residence on the Lot is
first occupied by an Owner upon completion of construction thereof,
there shall -be due and payable to the Corporation by the Owner of
such Lot the sum of: (A) Three Hundred Dollars ($300.00) if such
Lot abuts a Lake or (B) One Hundred Dollars ($100.00) if such Lot
does not abut a Lake. All such sums shall 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 any such
Assessment shall have the assent of the Class B Member and of a
majority of the votes of the Class A Members whose Lots are subject
to assessment with respect to the capital improvement who are
voting in person or by proxy at a meeting of such Members duly
called for this purpose.
(e) Date of commencement of Assessments. The General
Assessment shall commence with respect to assessable Lots 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.
17
(g) Subordination of the Lien to Mortgages. The lien of the
Assessments provided for herein against a Lot shall be subordinate
to the lien of any recorded first mortgage covering such Lot and to
any valid tax or special assessment lien on such Lot in favor of
any governmental taxing or assessing authority. Sale or transfer
of any lot shall not affect the assessment lien. The sale or
transfer of any Lot pursuant to mortgage foreclosure or any
proceeding in lieu thereof shall, however, extinguish the lien of
such Assessments as to payments which became due more than six (6)
months prior to such sale or transfer. No sale or transfer shall
relieve such Lot from liability for any Assessments thereafter
becoming due or from the lien thereof.
(h) Certificates. The Corporation shall, upon demand by an
Owner, at any time, furnish a certificate in writing signed by an
officer of the 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
governments upon the terms and to the extent of such legal
exemption. Notwithstanding any provisions herein, no land or
improvements devoted to dwelling 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 as provided in the By -Laws
shall be appointed by the Class B member. At such time as there is
no Class B member, the Architectural Review Board shall be
appointed by the Board of Directors.
(b) Purpose. The Architectural Review Board shall regulate
the external design, appearance, use, location and maintenance of
the Tract and of improvements thereon in such manner as to preserve
and enhance values and to maintain a harmonious relationship among
structures, improvements and the natural vegetation and topography.
18
(c) Change 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. Prior to the commencement by an Owner other than
Declarant of (i) construction, erection or alteration of any
Residence, building, fence, wall, swimming pool, tennis court,
patio, pier, dock or other structure on a Lot or (ii) any plantings
on a Lot, a Lot Development Plan with respect thereto shall be
submitted to the Architectural Review Board, and no building,
fence, wall, Residence, or other structure shall be commenced,
erected, maintained, improved, altered, made or done, or any
plantings made, by any Person other than Declarant without the
prior written approval 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, consents, permits and/or
variances required by law from governmental authorities having
jurisdiction over Windemere, and no Owner shall undertake any
construction activity within Windemere unless legal requirements
have been satisfied. Each Owner shall complete all improvements to
a Lot strictly in accordance with the Lot Development Plan approved
by the Architectural Review Board. As used in this subparagraph
(c), "plantings" does not include flowers, bushes, shrubs or other
plants having a height of less than 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 granted.
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
landscaping design guidelines and standards as it may deem
appropriate to achieve the purpose set forth in subparagraph (b) to
the extent that such design guidelines and standards are not in
conflict with the specific provisions of this Declaration. If
Declarant is no long a Class B member, any such guideline or
standard may be appealed to the Board of Directors which may
terminate or modify such guideline or standard by a two-thirds
(2/3) vote of the Directors then serving.
19
13. Community Area.
(a) Ownership. The Community Area shall remain private, and
neither Declarant's execution or recording of an instrument
portraying the Community Area, nor the doing of any other act by
Declarant is, or is intended to be, or shall be construed as, a
dedication to the public of such Community Area. Declarant or the
Corporation may, however, dedicate or transfer all or any part of
the Community Area to any public agency, authority or utility for
use as roads, utilities, parks or other public purposes.
(b) Density of Use or Adequacy. Declarant expressly
disclaims any warranties or representations regarding the density
of use of the Community Area or any facilities located thereon or
the adequacy thereof for the purpose intended.
(c) Obligations of the Corporation. The Corporation, subject
to the rights of Declarant and the Owners set forth in this
Declaration, shall be responsible for the exclusive management and
control of the Community Area and all improvements thereon
(including furnishings and equipment related thereto), and shall
keep the Community Area in good, clean, attractive and sanitary
condition, order and repair.
(d) Easements of Enjoyment. No Person shall have any right
or easement of enjoyment in or to the Community Area except to the
extent granted by, and subject to the terms and provisions of, this
Declaration or resolution adopted by the Board of Directors. Such
rights and easements as are thus granted shall be appurtenant to
and shall pass with the title to every Lot for whose benefit they
are granted. The Owners of Lots abutting the Lake may 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 right 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 establish reasonable
rules for the use of the Community Area;
(ii) the right of the Corporation to mortgage any or all
of the Community Area and the facilities constructed thereon
for the purposes of improvements to, or repair of, the
Community Area or facilities constructed thereon, pursuant to
approval of the Class B member and (i) two-thirds (2/3) of the
votes of the Class A members (excluding Declarant) or (ii)
two-thirds (2/3) of the Mortgagees (based on one vote for each
first mortgage owned), voting in person or by proxy at a
regular meeting of the Corporation or a meeting duly called
for this purpose; and
20
1,
(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 signed by the
Class B member and (i) the appropriate officers of the
Corporation acting pursuant to authority granted by two-thirds
(2/3) of the votes of the Class A members (excluding
Declarant) or (ii) two-thirds (2/3) of the Mortgages (based on
one vote for each first mortgage owned), agreeing 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 right of enjoyment to the
Community Area and facilities may use the Community Area and
facilities subject to such general regulations consistent with the
provisions of this Declaration as may be established from time to
time by the Corporation and included within the Register of
Regulations.
(g) Damage or Destruction by Owner. In the event the
Community Area is damaged or destroyed by an Owner or any of his
guests, tenants, licensees, agents, or member of -his family, such
Owner authorizes the Corporation to repair said damaged area; the
Corporation shall repair said damaged area in a good workmanlike
manner in conformance with the original plans and specifications of
the area involved, or as the area may have been modified or altered
subsequently by the Corporation in the discretion of the
Corporation. 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 easements, sewer easements, utility easements, entry way
easements, landscaping easements, lake access easements and non -
access easements, either separately or in any combination thereof,
as shown on the Plat, which are reserved for the use of Owners,
public utilities companies and governmental agencies as follows:
21
(i) Drainage Easements. (DE) are created to provide
paths and courses for area and local storm drainage, either
overland or in adequate underground conduit, to serve the
needs of Windemere and adjoining ground and/or public drainage
systems; and it shall be the individual responsibility of each
Owner to maintain the drainage across his own Lot. Under no
circumstance shall said easement be blocked in any manner by
the construction or reconstruction of any improvement, nor
shall any grading restrict, in any manner, the waterf low.
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 Review 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 part of said system.
(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 Township Regional Waste District for the purpose of
gaining access to the Lake, the Lake Control Structures, the
Drainage System and any sanitary sewer lift station in the
course of maintenance, repair or replacement of any thereof.
(vii) Non -Access Easements. (NAE) are created to
preclude access from certain Lots to abutting rights -of -way
across the land subject to such easements.
22
11
All easements mentioned herein include the right of reasonable
ingress and egress for the exercise of other rights reserved. No
structure, including fences, shall be built on any drainage, sewer
or utility easement, but a paved driveway necessary to provide
access to a Lot from a public street or Roadway shall not be deemed
a "structure" for the purpose of this Restriction.
(b) General Easement. There is hereby created a blanket
easement over, across, through and under the Tract for ingress,
egress, installation, replacement, repair and maintenance of
underground utility and service lines and systems, including but
not limited to water, sewers, gas, telephones, electricity,
television, cable or communication lines and systems. By virtue of
this easement it shall be expressly permissible for Declarant or
the providing utility or service company to install and maintain
facilities and equipment on the Tract and to excavate for such
purposes if Declarant or such company restores the disturbed area
as nearly as is practicable to the condition in which it was found.
No sewers, electrical lines, water lines, or other utility service
lines or facilities for such utilities may be installed or
relocated in 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 shall have the right to
grant such easement on the Tract without conflicting with the terms
hereof. This blanket easement shall in no way affect any other
recorded easements on the Tract, shall be limited to improvements
as originally constructed, and shall not cover any portion of a Lot
upon which a Residence has been constructed.
(c) Public Health and Safety Easements. An easement is
hereby created for the benefit of, and granted to, all police, fire
protection, ambulance, delivery vehicles, and all similar Persons
to enter upon the Community Area in the performance of their
duties.
(d) Drainage Board Easement. An easement is hereby created
for the benefit of, and granted to, the Drainage Board to enter the
Tract and all Lots therein to the extent necessary to exercise its
rights with respect to 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 driveways, walkways and Lake
Access Easements provided prior arrangements are made with the
utility company furnishing service. Such easements as are actually
utilized for underground service shall be kept clear of all other
improvements, including buildings, patios, or other pavings, other
than crossings, driveways, walkways or Lake Access Easements, and
neither Declarant nor any utility company using the easements shall
be liable for any damage done by either of them or their assigns,
23
4
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.
(g) Water Retention. The Owner of each Lot, by acceptance of
a deed thereto, consents to the temporary storage (detention) of
storm water within the drainage easements (DE) on such Owner's Lot.
15. Declarant's Use During Construction. Notwithstanding any
provisions to the contrary contained herein or in any other
instrument or agreement, Declarant or its sales agents or
contractors may maintain during the period of construction and sale
of Lots and Residences in the tract, upon such portion thereof as
is owned or leased by Declarant, such facilities as in the sole
opinion of Declarant may be reasonably required, convenient or
incidental to the construction and sale of Lots and Residences,
including, but without limiting the generality thereof, a business
office, storage area, construction yards, signs, model Residences
and sales offices.
16. Enforcement. The Corporation, any Owner or Declarant
shall have the right to enforce, by proceeding at law or in equity,
all restrictions, conditions, covenants, reservations, liens and
charges now or hereafter imposed by the provisions of this
Declaration, but neither Declarant nor the Corporation shall be
liable for damage of any kind to any Person for failure either to
abide by, enforce or carry out any of the Restrictions. No delay
or failure by any Person to enforce any of the Restrictions or to
invoke any available remedy with respect to a violation or
violations thereof shall under any circumstances be deemed or held
to be a waiver by that Person of the right to do so thereafter, or
an estoppel of that Person to assert any right available to him
upon the occurrence, recurrence or continuation of any violation or
violations of the Restrictions. In any action by Declarant, the
Corporation or an Owner to enforce this Declaration, such party
shall be entitled to recover all costs of enforcement, including
attorneys' fees, if it substantially prevails in such action.
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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 Community Area; the
merger 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 Capital Assessment.
18. Mortgages.
(a) Notices to Corporation. Any Owner who places a first
mortgage lien upon his Residence or the Mortgagee shall notify the
Secretary of the Board of Directors of such mortgage and provide
the name and address of the Mortgagee. A record of such
Mortgagee's name and address shall be maintained by the Secretary
and any notice required to be given to the Mortgagee pursuant to
the terms of the Declaration, the Articles or the By -Laws (the
"Organizational Documents") shall be deemed effectively given if
mailed to such Mortgagee at the address shown in such record in the
time provided. Unless notification of any such mortgage and the
name and address of Mortgagee are furnished to the Secretary,
either by the Owner or the Mortgagee, no notice to any Mortgagee as
may be otherwise required by the Organizational Documents shall be
required and no Mortgagee shall be entitled to vote by virtue of
the Organizational Documents or a proxy granted to such Mortgagee
in connection with the mortgage.
(b) Notices to Mortgagees. The Corporation shall promptly
provide to any Mortgagee of whom the Corporation has been provided
notice under subparagraph (a) above notice of any of the following:
(i) Any condemnation or casualty loss that affects a material
portion of the Community Area;
(ii) Any delinquency in the payment of any Assessment owed by
the Owner of any Residence on which said Mortgagee holds
a mortgage or any default by an Owner under the
Organizational Documents, if said delinquency or default
continues for more than sixty (60) days;
(iii) Any lapse, cancellation or material modification of any
insurance policy or fidelity bond maintained by the
Corporation;
(iv) Any proposed action that required the consent of a
specified percentage of Mortgagees; and,
(v) any proposed amendment of the Organizational Documents
effecting a change 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.
25
i
(c) Notice of Unpaid Assessments. The Corporation shall,
upon request of a Mortgagee,, a proposed mortgagee, or a proposed
purchaser who has a contractual right to purchase a Residence,
furnish to such mortgagee or purchaser a statement setting forth
the amount of the unpaid Assessments against the Residence and the
Owners, and any Mortgagee or grantee of the Residence shall not be
liable for, nor shall the Residence conveyed be subject to a lien
for, any unpaid Assessments in excess of the amount set forth in
such statement.
(d) Financial Statements. Upon the request of any Mortgagee,
the Corporation shall provide to said Mortgagee the most recent
financial statement prepared on behalf of the Corporation.
(e) Payments by Mortgagees. Any Mortgagee may (i) pay taxes
or other charges that are in default and that may or have become a
lien upon the Community Area or any part thereof and (ii) pay
overdue premiums on hazard insurance policies or secure new hazard
insurance coverage for the Community Area in case of a 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 (i) the appropriate officers of the
Corporation acting pursuant to the authority granted by not less
than two-thirds (2/3) of the votes of the Class A members cast at
a meeting duly called for the purpose of amending this Declaration
and, to the extent required by Paragraph 18, (ii) Declarant.
(b) By Declarant. Declarant hereby reserves the right
unilaterally to amend and revise the standards, covenants and
restrictions contained in this Declaration during the period prior
to December 31, 1995. 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. Except to the extent
authorized in Paragraph 15(b), Declarant shall not have the right
at any time by amendment of this Declaration to grant or establish
any easement through, across or over any Lot which Declarant has
previously conveyed without the consent of the Owner of such Lot.
(c) Effective Date. Any amendment shall become effective
upon its recordation in the Office of the Recorder of Hamilton
County, Indiana.
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f
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 apply 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 run 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 Persons 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
Restrictions and of and from every other one of the Restrictions,
and of and from every combination of the Restrictions. Therefore,
if any of the Restrictions shall be held to be invalid or to be
unenforceable, or to lack the quality of running with the land,
that holding shall be without effect upon the validity,
enforceability or "running" quality of any other one of the
Restrictions.
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 agree to
indemnify and hold Declarant free and harmless from and against any
and all liability arising from, related to, or in connection with
drainage on, over and under the Lot described in such deed.
Declarant shall have no duties, obligations or liabilities
hereunder except such as are expressly assumed by Declarant, and no
duty of, or warranty by, Declarant shall be implied by or inferred
from any term or provision of this Declaration.
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IN TESTIMONY WHEREOF, witness the signatures of Declarant as
of the date set forth above.
WINDEMERE CORPORATION
By
Steven Wilson, President
Attest:
Richard Carriger, Secretary
STATE OF INDIANA )
) SS: _
COUNTY OF HAMILTON )
Before me, the undersigned, a Notary Public in and for said
County and State, personally appeared Steven Wilson and Richard
Carriger, the President and Secretary, respectively, of Windemere
Corporation, an Indiana Corporation, who acknowledged the execution
of the above and foregoing Declaration of Covenants and
Restrictions for and on behalf of said corporation pursuant to
authority granted by its Board of Directors.
WITNESS my hand and Notarial Seal this day of
, 1991.
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 730, Indianapolis, IN 46240
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