Loading...
HomeMy WebLinkAboutCovenants, Conditions & Restrictions - Proposed -- ;~ ",.;. .,;,. .,,'\TI r~ ' 6Y>;''\ li RECEIVED '\f\ '~, JUL 9 2002 a s\ DOCS tJ ~ 1;;;; /(,-.;, /y ,:!tjj'ti;;=;-r, \\6\ 'y ~-'-.0~ u (.) ~ DECLARATION OF COVENANTS. CONDITIONS AND RESTRICTIO OF WILLIAMS RIDGE THIS DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS ("Declaration") is made this _ day of , 2002, by CONLEY HOMES, INe. ("Developer"). WHEREAS, Developer is the owner of that certain real estate located in Hamilton County, Indiana, known as Williams Ridge, more particularly described in the attached Exhibit A, incorporated herein by reference (the "Real Estate"); and WHEREAS, Developer intends to subdivide the Real Estate into six (6) residential lots with appurtenant common areas; and WHEREAS, Before so subdividing the Real Estate, Developer desires to subject the 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 Real Estate for the benefit of each owner of any part thereof; and WHEREAS, 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 Real Estate and of administering and enforcing the covenants and restrictions contained in this Declaration as hereafter recorded in the office of the Recorder of Hamilton County, Indiana and of collecting and disbursing the Assessments and charges as herein provided; NOW, THEREFORE, Developer hereby makes, grants and declares the following covenants, restrictions and easements applicable to and imposed upon the Real Estate. ARTICLE I DEFINITIONS The following terms, when used in this Declaration with initial capital letters, shall have the following respective meanings: a. "Architectural Review Committee" means the architectural review committee established pursuant to Article VI, paragraph 6.1 of this Declaration. , .' b. "Association" means Williams Ridge Homeowners Association, Inc., an Indiana not-for- profit corporation, which Developer has caused or will cause to be incorporated, and its successors and asSigns. c. "Assessments" means the Regular Assessments and Special Assessments. -1- '. ,', ... u (;) d. "Common Areas" means (i) all portions of the Real Estate designed for access to, ingress to, egress from, utility service to, storm water drainage for or other use and enjoyment by more than one Owner of Lots in the Real Estate and designated on any Plat of the Real Estate or Easement encumbering the Real Estate or portion thereof: and (ii) all paving, curbing, architectural features, landscaping, lighting, utility lines, mains, and facilities, structures, buildings, improvements and personal property located on such portions of the Real Estate or owned or leased by the Association from time to time and used in connection with such portions of the Real Estate. Common Areas may be located within a public right-of-way, on a Lot or in an easement area as shown on the Plat or as otherwise designated in any recorded Easement. e. "Common Expenses" means (i) all costs and expenses incurred by the Developer or Association in connection with the ownership, operation, maintenance, repair or replacement of the Common Areas and the performance of the responsibilities and duties of the Association, including without limitation, costs and expenses for the construction, installation, replacement, maintenance, decoration and repair of the Common Areas, (ii) taxes and assessments levied against the Common Areas or the Association; (iii all costs and expenses of defending against or settling any liens, claims or judgments against the Association, including without limitation, attorneys' fees, paraprofessional fees and court costs, (iii) all expenses incurred to procure liability, hazard and any other insurance with respect to the Common Areas, and (iv) all expenses incurred in the administration of the Association. f "Developer" means Conley Homes, Inc., and any successors and assigns designated in one or more written recorded instruments to have the rights of Developer hereunder. g. "Development Period" means the period of time commencing with the date of recordation of this Declaration and ending on the date Developer or its affiliates no longer own any Lot within or upon the Real Estate, but in no event shall the Development Period extend beyond the date twenty (20) years after the date this Declaration is recorded. h. "Easements" shall mean those areas designated on the Plat or otherwise designated in an easement benefiting the Real Estate recorded in the office of the Recorder of Hamilton County, Indiana, as providing access, drainage, utilities, storm or sanitary sewer for the Real Estate, i. "Lot" means any parcel of land shown and identified as a lot on a Plat of any part of the Real Estate. j. "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 Committee may request with respect to the improvement or alteration of a Lot (including but not limited to the landscaping thereot) or the construction or alteration of a building or other structure or improvement thereon. k. "Mortgagee" means the holder of a recorded first mortgage lien on any Lot. -2- -..'..> .(;< u o 1. "Owner" means the record owner, whether one or more persons or entities, of fee-simple title to any Lot, designed for occupancy by one family, 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. m. "Plat" means a duly approved final plat of any part of the Real Estate as hereafter recorded in the office of the Recorder of Hamilton County, Indiana. n. "Regular Assessments" means the annual general assessment for Common Expenses levied by the Association against all Owners and becoming a lien against all Lots in accordance with the terms of this Declaration. o. "Rules and Regulations" means any non-discriminatory rules, regulations, standards, policies, and procedures adopted from time to time by the Association or the Architectural Review Committee in accordance with the terms of this Declaration. p. "Special Assessments" means any assessments for capital improvements and operating deficits and for special maintenance and repairs specially levied by the Association against all or any select portion of the Owners and becoming a lien against the Lots of such Owners in accordance with the terms of this Declaration. q. "Zoning Authority" means the Director of the Department of Community Development of the City of Carmel, Indiana or other governmental body or bodies, administrative or judicial, in which authority is vested under applicable law to hear appeals, or review action or the failure to act on any zoning matters applicable to the Real Estate. ARTICLE IT DECLARATION Developer hereby grants, conveys and declares that the Real Estate is and shall be acquired, held, transferred, sold, hypothecated, leased, rented, improved, used and occupied subject to the following provisions, agreements, covenants, conditions, restrictions, easements, assessments, charges and liens, each of which shall run with the land and 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 or to the Real Estate or any part thereof All Owners, their tenants, guests, invitees, and mortgagees, and any other person using or occupying a Lot or any other 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 De~laration 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 (i) by acceptance of a deed conveying title thereto or the execution of a contract for the purchase thereof, whether from the Developer or its affiliates or any subsequent Owner, or (ii) by the act of occupancy of a Lot, shall conclusively be deemed to have accepted such deed, executed such contract or undertaken such occupancy subject to the covenants, conditions, -3- .. '. --- .~ u Q restrictions, terms and provisions of this Declaration. By acceptance of a deed, execution of a contract or undertaking of such occupancy, each Owner covenants for the Owner, the Owner's heirs, personal representatives, successors and assigns, with Developer and the Owners from time to time, to keep, observe, comply with and perform the covenants, conditions, restrictions, terms and provisions of this Declaration. ARTICLE III PROPERTY RIGHTS 3.1 Common Areas Easements. Developer hereby grants, conveys and declares perpetual, non-exclusive Easements in, on, over, under across and through the Common Areas of the Real Estate for the benefit of each Lot and Owner for access to, ingress to, egress from, utility services and storm water drainage for and otherwise for the use and enjoyment of each Lot. Such Easements shall run with the land and be appurtenant to each Lot, subject to the terms and conditions of this Declaration. The Easements granted herein shall further be for the benefit of Developer, all public utility companies, governmental and public safety agencies (including, but not limited to, fire safety and prevention, law enforcement and emergency services) and the Association, and its and their employees, agents and contractors, for access to the Real Estate and installation, operation, maintenance, repair, replacement or removal of poles, mains, ducts, drains, lines, wires, cables and other equipment and facilities for the furnishing of services to the Lots and Common Areas. The Owner of any Lot subject to an Easement, including any builder, shall be required to keep the portion of an Easement on its Lot in good order, condition and repair and free from obstructions so that access, utility service and storm water drainage is unimpeded. No Owner shall change or alter any Easement without a permit from the appropriate governmental entity, as applicable, nor without obtaining the prior written approval of the Architectural Review Committee. In addition to the Easement areas delineated on the Plat, any person or entity temporarily may access the Easement area over and across the adjacent portions of any Lot to the extent reasonably necessary for the exercise of the rights granted hereunder. If any person or entity exercising its rights hereunder shall damage any Common Areas or Lot, such person or entity shall promptly repair and restore such Common Areas and/or Lot to substantially the condition existing prior to such damage; provided that repair or replacement of any structure, improvements or trees improperly located in an Easement shall not be required, and the Owner thereof shall remove such items. No structures, improvements or deep root trees (except walkways, driveways, sidewalks and roads), including without limitation decks, patios, porches, pools, or courts for tennis, basketball or other sports, of any kind, shall be erected or maintained upon the Easements, and any such structure, improvement or tree upon any Easement shall, at Developer's or the Association's written request, be removed by the Owner at the Owner's sole cost and expense. The Owners of Lots subject to an Easement shall take and hold title to the Lots subject to the Easements herein created and reserved. 3.2 Permissive Use. Any Owner may permit his or her family members, guests, tenants or contract purchasers who reside on the Lot to use his or her right of enjoyment of the Common Areas. Such permissive use shall be subject to the By-Laws of the Association and any reasonable Rules and Regulations promulgated by the Association from time to time. 3.3 Conveyance of the Common Areas. Developer may convey all of its right, title, interest in and to any of the Easements or Common Areas to the Association by quitclaim deed, and -4- Or. i. u o such Easements or Common Areas so conveyed shall then be the property of the Association, subject to the Easements. ARTICLE IV USE RESTRICTIONS 4.1 Lot Use. All Lots on the Real Estate shall be used solely for single-family residential purposes and for no other use or purpose. No business building shall be erected on any Lot. No structure shall be erected, placed or permitted to remain on any Lot other than one (1) single-family residence not to exceed the maximum height permitted under and measured pursuant to the Zoning Ordinance of the City of Carmel, Indiana. No Lot shall be subdivided into two (2) or more lots. 4.2 Lease of Lots. If any Owner desires to lease a Lot, such rental shall be pursuant to a written lease with a minimum term of one year and such lease shall provide that the lessee shall be subject to all rules and regulations of the Association and the terms and conditions of these Declarations. 4.3 Use of Common Areas. The Common Areas shall not be used for commercial purposes. Each Owner shall maintain the Common Areas on its Lot in good order, condition and repair in accordance with the standards for maintenance of Lots set forth herein. 4.4 Lot Access. All Lots'shall be accessed from the interior streets of the Real Estate. No direct access is permitted to any Lot from 116th Street. 4.5 Animals. No animals, livestock or poultry of any kind shall be raised, bred or kept on any Lot or surrounding Common Area, except that no more than three (3) dogs, cats or other household pets, in the aggregate, may be kept, provided that they are not kept, bred or maintained for any commercial purpose. All pets shall be restricted to the Owner's Lot except for temporary periods when kept on a leash. Owners shall be responsible for picking up animal litter of their pets from other Owners' Lots and from the Common Area. 4.6 Prohibited Activities. No noxious or offensive activity shall be permitted upon any Lot or Common Areas, nor shall anything be done thereon which may be or may become an annoyance or nuisance to the neighborhood. Electric bug killers or "zappers" arid barking dogs may be deemed a nuisance by the Association, and shall be permanently removed from the Real Estate upon within ten (10) days after notice from the Association to the Owner of the Lot on which the offending item is located. Each Lot and all Common Areas and improvements thereon shall be kept and maintained in a sightly and orderly manner and no trash or other rubbish shall be permitted to accumulate thereon. The Board of Directors shall promulgate and enforce such Rules and Regulations as it deems necessary for the common good in this regard. 4.7 Signs. No signs of any nature, kind or description shall be erected, placed or maintained on or in front of any Lot which identify, advertise or in any way describe the existence or conduct of a home occupation. No signs of any kind shall be displayed to the public view on any Lot except for one sign of not more than five (5) square feet advertising the Lot for sale or rent. No more -5- .)0 ,t" u o than four (4) signs, no larger than five (5) square feet, shall be allowed by any builder or others to advertise the Lot during construction; however, any sign required by law must be displayed during the construction period in addition to the permitted signs. This covenant has no application to marketing or promotional signage of the Developer while Lots are being sold. 4.8 Home Occupations. No home occupation shall be conducted or maintained on any Lot other than one which is incidental to a business, profession or occupation of the Owner or occupant of any such Lot and which is generally or regularly conducted in another location away from such Lot. Nothing contained herein shall be construed or interpreted to affect the activities of Developer in the sale of Lots as a part of the development of the Real Estate, including without limitation, Developer's right to post such signs and maintain such model residences as it deems necessary until such time as Developer's last Lot is sold. 4.9 Public Streets. The Developer intends that the streets within the Real Estate shall be public streets and accepted for maintenance by the City of Carmel or Hamilton County, Indiana. No Owner shall be entitled to object to the public dedication of the streets of the Real Estate. 4.10 Outside Storage and Vehicle Parking. No outside storage of equipment, materials, supplies, debris, or vehicles, including without limitation, any lawn mower, camper, motor home, truck, trailer, boat or recreational vehicle, other than licensed passenger automobiles and light duty trucks, shall be permitted. No vehicles of any kind may be put up on blocks or jacks to accommodate car repair on a Lot unless such repairs are done in the garage. Disabled vehicles shall not be allowed to remain in open public view. No commercial vehicles over three-quarter (3/4) ton or trucks with business signs or logos shall be parked on the Real Estate except inside a garage. No parking of any vehicles shall be permitted on the streets of the Real Estate. 4.11 Garbage and Refuse Disposal. Trash and refuse disposal will be on an individual basis, Lot by Lot. No dumpsters or other forms of general or common trash accumulation shall be permitted, except to facilitate development and house construction during the period of construction. Rubbish, garbage and other waste shall be kept in sanitary containers. All equipment for storage or disposal of such materials shall be kept clean and shall not be stored on any Lot in open public view. No leaf debris, rubbish, garbage or other waste shall be allowed to accumulate on any Lot. No homeowner or occupant of a Lot shall bum or bury any leaves, garbage or refuse. ARTICLE V BUll.DING STANDARDS 5.1 Building Location and Finished Floor Elevations. Building setback lines are established on the Plat. No building, accessory building or other appurtenant structure, including without limitation, any deck, patio, porch, pool, or court for tennis, basketball or other sports, shall be erected or maintained within the front setback line of a Lot, within any Easement, within twenty (20) feet of the rear Lot line or within ten (10) feet of any side yard Lot line. The side yards of each Lot must aggregate twenty (20) feet. Reasonable efforts shall be used in designing, locating and constructing buildings and other improvements on each Lot, to preserve and protect all existing trees having a callipered trunk diameter at 2 feet above grade of four inches (4") or more. All ground floor -6- .). -: u o ~ , elevations shall be approved by the Architectural Review Committee. Demonstration of adequate storm water drainage in conformity with both on-Lot and overall project drainage plans shall be required. Before construction commences, the finished floor elevation shall be physically checked on the Lot and certified by a licensed professional engineer or licensed land surveyor. 5.2 Accessory and TemporlU)' Buildings. No trailers, sheds, shacks or outhouses of any kind shall be erected or situated on any Lot, except that used by the Developer during development of the Real Estate or the construction of a residential building on a Lot, which temporary construction structures shall be promptly removed upon completion of construction. Any accessory building, storage shed, play house, tree house or recreational structure shall require the approval of the Architectural Review Committee. 5.3 TemporlU)' Structures. No trailer, camper, motor home, truck, shack, tent, boat, recreational vehicle, garage, outbuilding or other structure of a temporary character shall be used at any time as a dwelling, temporary or permanent. 5.4 Mailboxes. All mailboxes and mailbox posts shall be uniform and shall conform to the standards set forth by the Architectural Review Committee. 5.5 Storage Tanks. No gas, oil or other storage tanks shall be installed on any Lot, except that small (i.e., 10 gallons or less) gas storage tanks normally used for mobile gas outdoor cooking grills shall be permitted.' 5.6 Water Supply and Sewage Systems. No private wells or septic systems shall be permitted. All Lots shall connect to and receive water and sanitary sewer service through public water and sanitary sewer utilities. Each Owner shall pay all connection, tap-in, hook-up, or other availability, installation or usage fees or charges assessed by such utilities. 5.7 Ditches and Swales. All Owners, including builders, shall keep unobstructed and in good order, condition and repair all open storm water drainage ditches and swales, subsurface drainage tiles and other surface or subsurface drainage facilities which may be located on their respective Lots, and shall not otherwise impair drainage of upstream Lots or Common Areas to, over, through and across the natural or engineer drainage channels on the Real Estate. The elevation on a Lot shall not be changed in any manner which would adversely affect the surface elevation, grading or drainage of other Lots or the Common Areas. Downspouts and drains shall be designed to disperse runoff for surface flow to street or swale collection systems. During the course of any construction, appropriate silt fencing shall be maintained to prevent any silt runoff 5.8 Garages. Driveway and Parking Space. Each residential dwelling unit shall include at least a three (3) car attached garage and said garage shall have a paved driveway at least fourteen feet (14') wide. -7- ... ..., . . ...., .__.._._~-~._.._.._-,.-- .lo ~. " u Q 5.9 Antenna and Satellite Dishes. No outside antennas or satellite dishes shall be permitted except those approved as to size, height, design, screening and location by the Architectural Review Committee. 5.10 Construction and Landscaping. All construction upon, landscaping of and other improvements to a Lot shall first be approved by the Architectural Review Committee and shall be performed and completed in strict accordance with the Lot Development Plan approved by the Architectural Review Committee. Each Owner shall maintain its Lot in accordance with the Lot Development Plan, including without limitation, exterior building and roofing materials and color and landscaping features, contained in the Lot Development Plan. 5.11 Fencing. No fence shall be erected on or along any Lot line, nor on any Lot without the written approval of the Architectural Review Committee. All fencing shall be uniform or of consistent design, materials, height, style and color, with side yard fences constructed of black wrought iron of consistent design, and rear yard fences constructed of natural wood or black wrought iron of consistent design, or otherwise as determined by the Architectural Review Committee. Permitted fences shall be erected reasonably so as to avoid hindrance or obstruction of any other Lot or the Common Areas and shall be maintained in good order, condition and repair. No fences shall be permitted any closer to the front of the Lot than the front of the residence structure. 5.12 Solar Panels. No solar panels shall be permitted on roofs of any structures on the Real Estate. Any such panels shall be enclosed within fenced areas and shall be concealed from the view of neighboring Lots and Common Areas. 5.13 Outside Lighting. Each Lot shall include a yard light at a location, having a uniform height and being of uniform type, style, and manufacture, and such yard light otherwise shall conform to the standards set forth by the Architectural Review Committee. Each such light fixture shall be maintained in proper working order with a bulb of a maximum wattage approved by the Architectural Review Committee to ensure uniform illumination of each Lot and shall be equipped with a photo- electric cell or similar device to ensure automatic illumination from dusk to dawn each day. All other outside lighting on a Lot shall be of an ornamental nature, uniform or consistent in design, materials, height, style and color as determined by the Architectural Review Committee and shall provide for projection of light so as not to create a glare, distraction or nuisance to other property owners in the vicinity of or adjacent to the Lot. 5.14 Site Obstruction. No fence, wall, architectural feature, hedge, tree, ornamental grass, shrub planting, improvements, landscaping or other obstructions shall be placed or permitted to remain in the first twenty five feet (25') of the front yard of any Lot in a location, at a height or otherwise in any manner which would obstruct the sight lines for any street or driveway. 5.15 Vacant Lot Maintenance. Unsold Lots shall be mowed and maintained by the Developer. Upon sale to an Owner (other than Developer), all vacant Lots shall be maintained by the Owners thereof in accordance with the same standards for maintenance of occupied Lots. In the event grass or non-landscaped vegetation growth is allowed to exceed eight (8) inches in height, the Developer or Association shall have the option (but not the obligation) to mow the Lot and all costs -8- -", u Q and expenses incurred thereby shall be paid by the Owner of the Lot, upon demand, as a Special Assessment. 5.16 Dwelling Size. The ground floor of the main structure on each Lot, exclusive of one- story open porches, basements and garages, shall be not less than three thousand two hundred fifty (3,200) square feet for a one-story dwelling nor less than four thousand (4,000) square feet for a dwelling of more than one story, with at least a minimum of two thousand three hundred (2,300) square feet on ground level. 5.17 Air Conditioners. Wmdow air conditioners, fans or other similar units, are prohibited on a Lot. Central air conditioner condenser units shall be located in a side or rear yard and screened from view. 5.18 Grading. After construction and subject to the provisions set forth herein for tree preservation, all Lots shall be graded and landscaped. The grading shall be so as to provide positive drainage from the house as constructed. Positive drainage is drainage from the grade point beginning at the house in every direction of at least eight and one-eighth (8-1/8) percent down (one inch drop for every twelve inches of distance). 5.19 Pool. No swimming pool shall be constructed on any Lot without the approval of the Architectural Review Committee. 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 Committee 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 Architectural Review Committee imposes such requirement, then a mechanical pool cover of a type and manufacture approved by the Architectural Review Committee shall be installed and maintained in good order, condition and repair by the Owner in compliance with all applicable legal requirements established by the Zoning Authority as a condition to such variance and with all requirements established by the Architectural Review Committee. ARTICLE VI ASSOCIATION 6.1 Membership. Each Owner of a Lot automatically upon becoming an Owner, shall be and become a member of the Association and shall remain a member of the Association so long as he or she owns the Lot. 6.2 Classes of Membership and Vote. 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 (unless Class B membership has been converted to Class A membership as provided in the following subparagraph (ii), in which event Developer shall then have a Class A membership). Each Class A member shall be entitled to one (1) vote for each Lot owned by Owner), unless a Class A member owns two (2) Lots in which event such Lots shall be combined and deemed to be one (1) Lot and such Class A member shall be entitled to only one (1) vote for its combined Lot. -9- '" '- .i u (;) (ii) Class B Member. The Class B member shall be the Developer. The Class B member shall be entitled to six (6) votes. 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 6.3). 6.3 Applicable Date. As used herein, the term "Applicable Date" shall mean the date when the total votes outstanding in the Class A membership is equal to the total votes outstanding in the Class B membership or such date as determined by Developer, whichever comes first. 6.4 Multiple or Entity Owners. Where more than one person or entity constitutes the Owner of a Lot, all such persons or entities shall be members of the Association, but the single vote in respect of such Lot shall be exercised as the persons or entities holding an interest in such Lot determine among themselves. In no event shall more than one person exercise a Lot's vote under Paragraph 6.2 (in the case of Class A membership). No Lot's vote shall be split. 6.5 Board of Directors. The members of 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. 6.6 Professional Management. No contract or agreement for professional management of the Association, nor any contract between 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 penalty, on written notice of ninety (90) days or less. 6.7 Responsibilities of the Association. The responsibilities of the Association include, but shall not be limited to: (i) Maintenance of the Common Areas, including without limitation, any and all improvements thereon, in good repair as the Association deems necessary or appropriate. (ii) Installation and replacement of any and all improvements, signs, lighting, lawn, foliage, entry features and landscaping in and upon the Common Areas as the Association deems necessary or appropriate. (iii) Procuring and maintaining for the benefit of the Association, its officers and Board of Directors and the Owners, the insurance coverage required under this Declaration and such other insurance as the Board of Directors deems necessary or advisable. (iv) Common Areas. Payment of taxes, if any, assessed against and payable with respect to the (v) Assessment and collection from the Owners of the Common Expenses. (vi) Contracting for such services as the Association deems necessary or advisable. -10- :,. u (j (vii) Enforcing the Rules and Regulations of the Association and the requirements of this Declaration and any zoning covenants and commitments. 6.8 Powers of the Association. The Association may adopt, amend, or rescind reasonable rules and regulations (not inconsistent with the provisions of this Declaration) governing the use and enjoyment of the Common Areas and the management and administration of the Association, as the Association deems necessary or advisable. The Rules and Regulations promulgated by the Association may provide for reasonable interest and late charges on past due installments or any Regular or Special Assessments or other charges against any Lot. The Association shall furnish or make copies available of its rules and regulations to the Owners prior to the time when the rules and regulations become effective. 6.9 Compensation. No director or officer of the Association shall receive compensation for services as such director or officer except to the extent expressly authorized by a majority vote of the Owners present at a duly constituted meeting of the Association members. 6.10 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. 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. 6.11 Indemnity of Directors and Officers. The Association shall indemnifY, hold harmless and defend any person, his or her 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 or she is or was a director or officer of the Association, against all costs and expenses, including attorneys' fees, paraprofessional fees and court costs, actually and reasonably incurred by the Indemnitee in connection with the defense of such action, suit or proceeding, or in connection with any appeal thereof, except in relation to matters as to which it shall be adjudged in such action, suit or proceeding that such Indemnitee is guilty of gross negligence or willful misconduct in the performance of his or her duties. The Association shall also reimburse any such Indemnitee for the reasonable costs of settlement of or for any judgment rendered in any action, suit or proceeding, unless it shall be adjudged in such action, suit or proceeding that such Indemnitee was 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 ofms or her 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 any managing agent of the Association or any director or officer 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 gross negligence or willful misconduct by virtue of the fact that he or she 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 -11- "';. u u 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 or reimbursement as provided in this Paragraph 6.11. 6.12 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 may specifically include protection for any insurance proceeds received for any reason by the Board of Directors. The expense of any such bonds shall be a Common Expense. ARTICLE VII ARCHITECTURAL REVIEW COMMITTEE 7. 1 Creation. There shall be, and hereby is, created and established the Architectural Review Committee to perform the functions provided herein. At all times during the Development Period, the Architectural Review Committee shall consist of up to 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 end of the Development Period, the Architectural Review 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 provided that, if and so long as Developer or an officer of Developer owns a Lot, the Developer or such officer shall be entitled to be one (1) of the three (3) members of the Architectural Review Committee. The Board of Directors may at any time after the end of the Development Period remove any member of the Architectural Review Committee (other than Developer or officer of Developer so long as Developer or such officer owns a Lot) at any time upon a majority vote of the members of the Board of Directors. 7.2 Purposes and Powers of the Architectural Review Committee. The Architectural Review Committee shall review and approve the exterior design, appearance, use and location of all residences, buildings, structures or any other improvements placed by any person, including any builder, on any Lot, and the installation and removal of any trees, bushes, shrubbery and other landscaping on any Lot, in such a manner as to preserve and enhance the value and desirability of the Real Estate and to preserve the harmonious relationship among structures and the natural vegetation and topography. (i) In General. No residence, building, structure, satellite dish, antenna, walkway, yard ornament, fence, deck, wall, pool, porch, patio, court for tennis, basketball or other sports, or other out building or improvement of any type or kind shall be erected, constructed, placed or altered on any Lot and no change shall be made in the exterior materials or color of any residence or accessory structure located on any Lot without the prior written approval of the Architectural Review Committee. Such approval shall be obtained only after written application has been made to the Architectural Review Committee by the Owner of the Lot requesting authorization from the -12- -I'i.. u o Architectural Review Committee. Such written application shall be in the manner and fonn prescribed from time to time by the Architectural Review Committee and, in the case of construction or placement of any improvement shall be accompanied by two (2) complete sets of the Lot Development Plan for any such proposed construction or replacement. Such the Lot Development Plan shall include plot plans showing the location of the improvements proposed to be constructed or placed upon the Lot, each properly and clearly designated, the color and composition of all exterior materials proposed to be used, proposed removal of trees and any proposed landscaping, together with any other material or infonnation which the Architectural Review Committee may reasonably require. Unless otherwise specified by the Architectural Review Committee, plot plans shall be prepared by either a registered land surveyor, engineer or architect. (ii) Power of Disapproval. The Architectural Review Committee may refuse to approve any application made as required under Paragraph 7.2(i) above when: (a) The Lot Development Plan is inadequate or incomplete, or in violation of any restrictions in this Declaration or in a Plat of the Real Estate; (b) The design or color scheme is not in harmony with the general surroundings of the Lot or with the adjacent buildings or structures; or (c) The Lot Development Plan, or any part thereof, in the opinion of the Architectural Review Committee, would not preserve or enhance the value and desirability of the Real Estate or. would otherwise be contrary to the interests, welfare or rights of the Developer or any other Owner. (iii) Architectural Standards. The Architectural Review Committee, from time to time, may promulgate, amend or modify standards for development of the Real Estate as it may deem necessary or desirable for the benefit of the Lots, Owners and property values of the Real Estate. Such standards may set forth requirements in addition to those set forth in this Declaration or the Plat of the Real Estate, as long as the same do not contradict this Declaration or such Plat. 7.3 Duties of the Architectural Review Committee. If the Architectural Review Committee does not disapprove the Lot Development Plan within thirty (30) days after all required information on the Lot Development Plan shall have been submitted to it, then such Lot Development Plan shall be deemed approved. One copy of the Lot Development Plan shall be retained by the Architectural Review Committee for its permanent files. 7.4 Liability of the Architectural Review Committee. Neither the Architectural Review Committee, the Association nor any agent of any of the foregoing, shall be responsible in any way for the design or sufficiency of, or any defects in any plans, specifications or other materials submitted to it, nor for any defects in any work done according thereto or for any decision made by it unless made in bad faith or by willful misconduct. 7.5 Inspection. The Architectural Review Committee or its representative may, but shall not be required to, inspect work being performed to assure compliance with this Declaration and the -13- ~. w o materials submitted to it pursuant to this Article VII and may require any work not consistent with the approved Requested Change, or not approved, to be stopped and removed. ARTICLE VITI ASSESSMENTS 8.1 Creation of Lien and Personal Obligation. Each Owner (other than the Developer during the Development Period and other than in respect of any Common Area not located on any Lot) 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 Regular Assessments and Special Assessments. Such Assessments shall be established, shall commence upon such dates and shall be collected as herein provided. All such Assessments, together with interest, costs of collection and reasonable attorneys' fees, paraprofessional fees and court costs, 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 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. 8.2 Purpose of Assessments. The purpose of Regular and Special Assessments is to provide funds to maintain and improve the Common Areas and related facilities for the benefit of the Owners, and the same shall be levied for the following purposes: (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, the improvements, lawn foliage, lighting and landscaping within and upon the Common Areas, any Easement (which is the responsibility of the Association) and drainage system, and (iii) for the performance of the responsibilities specifically provided for 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. Any such fund shall be deposited in an interest-bearing account at a federally insured banking institution or in obligations fully guaranteed by the United States government, at the discretion of the Board of Directors. 8.2 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 amount as follows: (i) Until December 31,2002, the maximum Regular Assessment on any Lot for any calendar year shall not exceed Dollars ($_.00). (ii) From and after January 1, 2003, the maximum Regular Assessment on any 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 as provided in the following subparagraph (iii). -14- ".' 'C. u o (ill) From and after January 1, 2003, the Board of Directors of the Association may fix the Regular Assessment at an amount in excess of the maximum amount specified in subparagraph (ii) above only with the approval of a majority of those 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. (iv) Each Lot (excluding any Lot owned by Developer and excluding Common Areas not located on any Lot) shall be assessed an equal amount for any Regular Assessment, excepting any proration for ownership during only a portion of the assessment period. 8.3 Special Assessments. In addition to Regular Assessments, the Board of Directors of the Association 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 the cost of special maintenance and repairs or to recover any deficits (whether from operations or any other loss) which the Association may from time to time incur, but 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 duly constituted meeting of the members of the Association called for such purpose. Notwithstanding the foregoing, no vote of the members shall be required for a Special Assessment assessed by the Association against a breaching Owner for reimbursement of costs incurred in connection with such Owner's breach of this Declaration. 8.4 No Assessment Against Developer During the Development Period. Neither the Developer nor any related entity shall be assessed any portion of any Regular or Special Assessment during the Development Period. 8.5 Date of Commencement of Regular or Special Assessments: Due Dates. The Regular Assessment or Special Assessment, if any, shall commence as to each Lot upon conveyance of such Lot to an Owner who is not one ofthe persons named in Paragraph 8.4 above. At closing, the Owner shall pay an amount equal to one (1) year's Regular Assessment which shall be applied against the obligations set forth in this Article VIII. The Board of Directors of the Association shall fix the amount of the Regular Assessment at each annual meeting bf the members of the Association for the next fiscal year. 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. The Board of Directors may provide for reasonable interest and late charges on past due installments of Assessments. 8.6 Failure of Owner to Pay Assessments. (i) No Owner shall be exempt from paying Regular Assessments and Special Assessments due to such Owner's nonuse of the Common Areas or abandonment of the Lot belonging to such Owner. If any Owner shall fail, refuse or neglect to make any payment of any Assessment (or -15- 'i~ :.~ u o periodic installment of an Assessment, if applicable) when due, the lien for such Assessment (as described in Paragraph 8.7 below) may be 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. Any past due Assessments shall be subject to an interest charge at the rate of interest paid on judgments but not less than twelve percent (12%) per year. In any action to foreclose the lien for any 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 until resale of the Lot to a new Owner, 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, at its option, may in the alternative bring 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, paraprofessional fees and court costs) and interest from the date such Assessments were due until paid. (ii) Notwithstanding anything to the contrary contained in this Paragraph 8.6 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 thereof, at such foreclosure sale, or the 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. 8.7 Certificates. The Association, upon request of a proposed Mortgagee or proposed purchaser having a contractual right to purchase a Lot, shall 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 and the due date for payment thereof 8.8 Enforcement Expenses Deemed a Special Assessment. If any Owner fails to perform its obligations and observe the covenants herein provided and such failure continues for thirty (30) days after written notice from Developer or the Association specifYing such failure (or such longer period as may be required to cure any non-monetary failure provided that Owner shall have commenced and diligently and continuously pursued the cure of such failure), Developer or the Association may, but shall not be obligated to, cure such failure, entering upon the Lot as may be required to cause such cure. In such event, Developer or the Association, as applicable, shall be entitled to recover all costs and expenses incurred in connection with such failure and cure, including but not limited to reasonable attorneys' fees, paraprofessional fees and court costs, from the offending Owner and such amount shall be deemed a Special Assessment against the Lot owned by such Owner which, if unpaid, shall constitute a lien against such Lot and may be collected by the Association pursuant to this Article VIII in the same manner as any other Regular Assessment or Special Assessment may be collected. -16- .. u o ARTICLE IX INSURANCE 9.1 Casualty Insurance. The Association shall purchase and maintain "all risk" fire and extended coverage insurance in an amount equal to the full insurable replacement cost of any improvements owned by the Association. The Association shall 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 policy shall name the Association as the insured. The insurance policy or policies shall, if possible, contain provision that the insurer (i) waives its rights to subrogation as to any claim against the Association, its Board of Directors, officers agents and guests and (ii) waives any defense to payment based on invalidity arising from the acts of the insured. Insurance proceeds shall be used by the Association for the repair or replacement of the property for which the insurance was carried. 9.2 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) per occurrence. Such comprehensive public liability insurance shall cover injury and damage to person or property occurring on or about the Common Areas and shall inure to the benefit of 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 and the Developer. 9.3 Other Insurance. The Association shall also purchase and maintain any other insurance required by law to be maintained, including but not limited to workers 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 msurance. 9.4 Miscellaneous. The premiums for the insurance described above shall be paid by the Association as part of the Common Expenses. ARTICLE X MAINTENANCE 10.1 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, including any builder during the building process, to keep the grass on the Lot properly cut and keep the Lot, including any Easements located on the Lot, free of weeds, trash or construction debris and otherwise neat and attractive in appearance, including, without limitation, the property maintenance of the exterior of any structures on such Lot. If the Owner of any Lot fails to do so in a manner satisfactory to the Association, the Association, after approval by a majority 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 clean, repair, maintain or restore the Lot, as -17- .~; ... u u the case may be, and the exterior of the improvements erected thereon. The cost of any such work shall be and constitute a Special Assessment against such Lot and the Owner thereof, whether or not a builder, and may 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. 10.2 Damage to Common Areas. In the event of damage to or destruction of any part of the Common Areas or any improvements which the Association is required to maintain hereunder, the Association shall repair or replace the same to the extent of the availability of insurance proceeds. If such insurance proceeds are insufficient to cover the costs of repair or replacement of the property damaged or destroyed, the Association may make a Special Assessment against all Owners to cover the additional cost of repair or replacement not covered by the insurance proceeds or against such Owners who benefit by the Special Assessments ifless than all benefit. Notwithstanding any obligation or duty of the Association hereunder to repair or maintain the Common Areas, if, due to the willful, intentional or negligent acts or omissions of any Owner (including any builder) or of a member of the Owners family or of a guest, tenant, invitee or other occupant of visitor of such Owner, damage shall be caused to the Common Areas, or if maintenance, repairs or replacements shall be required thereby which would otherwise be a Common Expense, then the Association shall cause such repairs to be made and such Owner shall pay for such damage and such maintenance, repairs and replacements, unless such loss is covered by the Association's insurance with such policy having a waiver of subrogation clause. If not paid by such Owner upon demand by the Association, the cost of repairing such damage shall be added to and constitute a Special Assessment against such Owner, whether or not a builder, and its Lot, to be collected and enforced in the manner provided in this Declaration for the collection and enforcement of Assessments in general. ARTICLE XI MORTGAGES 11.1 Notice to Mortgagees. The Association, upon request, shall provide to any Mortgagee a written certificate or notice specifYing unpaid Assessments and other defaults, if any, of the Owner of a Lot in the performance of the Owner's obligations under this Declaration or any other applicable documents. 11.2 Notice to Association. Any Mortgagee who holds a first mortgage lien on a Lot may notify the Secretary of the Association of the existence of such mortgage and provide the name and address of the Mortgagee. A record of the 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 to the Mortgagee at the address shown in such record in the time provided. Unless notification of a Mortgage and the name and address of the 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 -18- ''Ii' '" u o By-Laws of the Association, a proxy granted to such Mortgagee in connection with the mortgage, or otherwise. 11.3 Mortgagees' Rights Upon Default by Association. If the Association fails (i) to pay taxes, utility service charges or other charges that are in default and that have or may become liens against or impair services to the Common Areas, or (ii) to pay on a timely basis any premium on hazard insurance policies on Common Areas or to secure hazard insurance coverage for the Common Areas upon lapse of a policy, then the Mortgagee on any Lot may, upon thirty (30) days prior written notice to each of the President, Treasurer and Secretary of the Association, make the payment on behalf of the Association. ARTICLE XII AMENDMENTS 12.1 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 votes of all Owners. (iii) Meeting. The resolution concerning a proposed amendment must be adopted by the vote required by Paragraph 12. 1 (iv) 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 sixty-seven percent (67%) in the aggregate of all Owners; provided, that any such amendment shall require the prior written approval of Developer so long as Developer or any entity related to the Developer owns any Lot. 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 same 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 11.2. Any Mortgagee which has been duly notified of the nature of any proposed amendment shall be deemed to have approved the same if the Mortgagee or a representative thereof fails to appear at the meeting in which such amendment is to be considered (if proper notice of such meeting was timely given to such Mortgagee) or if the Mortgagee does not send its written objection to the proposed amendment prior to such meeting. 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 -19- .'j ~ (.) o notices are mailed and if such notice advises the Mortgagee of the time limitation contained in this sentence. 12.2 By the Developer. Developer hereby reserves the right, during the Development Period, to amend this Declaration, without the approval of any other person or entity, for any purpose reasonably deemed necessary or appropriate by the Developer, including without limitation, to bring Developer or this Declaration into compliance with the requirement of any statute, ordinance, regulation or order of any public agency having jurisdiction thereof; to conform with zoning covenants and conditions; to comply with the requirements of the Federal National Mortgage Association, the Government National Mortgage Association, the Federal Home Loan Mortgage Corporation, the Department of Housing and Urban Development, the Veterans Administration or any other governmental agency or to induce any of such agencies to make, purchase, sell, insure or guarantee first mortgages; or to correct clerical or typographical errors in this Declaration or any amendment or supplement hereto; provided that in no event shall Developer be entitled to make any amendment which has a material adverse effect on the rights of any Mortgagee, or which substantially impairs the rights granted by this Declaration to any Owner or substantially increases the obligations imposed by this Declaration on any Owner. 12.3 Recording. Each amendment to this 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 th~ 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. 12.4 Government Financing Entities' Approval. If there is financing provided for any of the Real Estate by the Federal Housing Administration, Veterans Administration, Federal Home Loan Mortgage Corporation or the Federal National Mortgage Association, and any of these entities requires that its consent be obtained prior to amending this Declaration or dedicating the Common Areas subject to this Declaration, then the Association shall first obtain the consent of such entity ARTICLE xm MISCELLANEOUS 13.1 Right of Enforcement. Violation or threatened violation of any of the covenants, conditions or restrictions enumerated in this Declaration or in a Plat of the Real Estate now or hereafter recorded in the office of the Recorder of Hamilton County, Indiana, or zoning commitment 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, restrictions or commitments. 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, paraprofessional fees and court costs reasonably incurred by any party successfully enforcing such covenants, conditions, restrictions or commitments; provided, however, that neither Developer, any Owner nor the -20- . " - ~ u u Association shall be liable for damages of any kind to any person for failing to enforce any such covenants, conditions, restrictions or commitments. 13.2 Delay or Failure to Enforce. No delay or failure on the part of any aggrieved party, including without limitation the Developer, to invoke any available remedy with respect to any violation or threatened violation of any covenants, conditions, restrictions or commitments enumerated in this Declaration or in a Plat of any part of the Real Estate or otherwise shall be held to be a waiver by that party (or an estoppel of that party to assert) any right available to it upon the occurrence, recurrence or continuance of such violation or violations. 13.3 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 December 31, 2050 and thereafter shall continue automatically until terminated or modified by vote of a majority of all Owners at any time thereafter; provided, however, that no termination of this Declaration shall affect any Easement hereby created and reserved unless all persons entitled to the beneficial use of such Easement shall consent thereto. 13.4 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. 13.5 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 take 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. 13.6 Applicable Law. This Declaration shall be governed by the laws of the State of Indiana. ARTICLE XIV DEVELOPER'S RIGHTS 14.1 Access Rights. Developer hereby declares, creates and reserves an access license over and across all the Real Estate (subject to the limitations hereinafter provided in this Paragraph 14.1) for the use of Developer and its representatives, agents, contractors and affiliates during the Development Period. Notwithstanding the foregoing, the area of the access license created by this Paragraph 14.1 shall be limited to that part of the Real Estate which is not in, on, under, over, across or through a building or other improvement or the foundation of a building or other improvement properly located on the Real Estate. The parties for whose benefit this access license is herein created and reserved shall exercise such access easement rights only to the extent reasonably necessary and appropriate. -21- .. ':.'~. ~ u u 14.2 Signs. Developer shall have the right to use signs of any size during the Development Period and shall not be subject to any restrictions with respect to signs during the Development Period. The Developer shall also have the right to construct or change any building, improvement or landscaping on the Real Estate without obtaining the approval of the Architectural Review Committee at any time during the Development Period. 14.3 Sales Offices and Models. Notwithstanding anything to the contrary contained in this Declaration or a Plat of any part of the Real Estate now or hereafter recorded in the office of the Recorder of Hamilton County, Indiana, Developer, any entity related to Developer and any other person or entity with the prior written consent of 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 or such person or entity as, in the sole opinion of Developer, may be reasonably required to 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 or trailers. 14.4 Delay in Construction of Residence. 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 residential building) shall commence construction of a residential building upon the Lot within two (2) years from the date the Owner acquired title thereto and shall complete construction of such residential building 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 residential building in which such Owner permanently resides. If the Owner fails to commence or complete construction of a residential building within the time periods specified herein, or if the Owner should, without Developer's or the Association's written approval, sell, contract to sell, conveyor otherwise dispose of: or attempt to sell, conveyor otherwise dispose of the Lot before completion of construction of a residential building on the Lot, then, in any of such events, Developer or the Association may: (a) re-enter the Lot and divest the Owner thereof by tendering to the Owner or the Clerk of the Circuit Court of Hamilton County the lesser of (a) the same net dollar amount as was received by Developer from such Owner as consideration for the conveyance by Developer of the Lot, together with such actual costs, if any, as the Owner may prove to have incurred in connection with the commencement of construction of a residential building on the Lot, or (b) the then fair market value of the Lot, as determined by averaging two (2) appraisals made by two (2) qualified appraisers appointed by the Judge of the Circuit Court of Hamilton County, Indiana; (b) obtain injunctive relief to force the Owner to proceed with construction of a residential building in accordance with the Lot Development Plan approved by the Architectural Review Committee for the Lot; or ( c) pursue such other remedies at law or in equity that may be available to Developer or the Association. -22- .. - 0..: , ?..; Cr. .. u u The failure of the Owner to apply for approval of, or receive approval from, the Architectural Review Committee of a Lot Development Plan shall not relieve such Owner from its obligation to commence and complete construction of a residential building on the Lot within the period provided herein. For the purposes of this Paragraph 14.4 , construction shall be deemed completed when the exterior of the residential building on the Lot (including without limitation, the foundation, walls, roof, windows, entry doors, gutters, downspouts, exterior trim, paved driveway and landscaping) has been completed in accordance with the Lot Development Plan and a certificate of occupancy has been issued by the City of Carmel, Indiana. IN WITNESS WHEREOF, this Declaration has been executed by Developer as of the date first above written. CONLEY HOMES, INe. By: Steve Moed, President -23- .t)'-~ ,,:'.1 . ... u (.) STATE OF INDIANA ) )SS: COUNTY OF MARION ) Before me, a Notary Public, in and for the State of Indiana, personally appeared Steve Moed, by me known and by me known to be the President of Conley Homes, Inc., who acknowledged the execution of the foregoing Declaration of Covenants, Conditions and Restrictions of Williams Ridge for and on behalf of said corporation. Witness my hand and Notary Seal this _ day of ,2002. Notary Public Printed: My Commission Expires: My County of Residence is: This instrument prepared by Elizabeth T. Young, Esq., Robinson Wolenty & Young, LLP, 8888 Keystone Crossing, Suite 710, Indianapolis, Indiana 46240, (317) 587-7820. -24-