Loading...
HomeMy WebLinkAboutFair Green Trace Covenants -1- Cross-Reference: 2000-00006673; 2000-00006675; 2001-00067204 AMENDED AND RESTATED DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS OF FAIRGREEN TRACE THIS AMENDED AND RESTATED DECLARATION was made as of the last date set forth below. WITNESSETH: WHEREAS, the following facts are true: The Fairgreen Trace subdivision located in Hamilton County, Indiana was established by a certain "Declaration of Covenants, Conditions and Restrictions of Fairgreen Trace" which was recorded on February 11, 2000, as Instrument No. 2000- 00006673 in the Office of the Recorder of Hamilton County, Indiana, said Declaration together with all amendments and/or supplements thereto being hereafter referred to as the "Original Declaration"; and Plats filed with the Office of the Recorder of Hamilton County, Indiana for sections of Fairgreen Trace established a total of sixty-four (64) residential Lots and Common Area comprising the Fairgreen Trace subdivision in accordance with the Original Declaration; and -2- The Plat for Phase I of Fairgreen Trace was recorded on February 11, 2000, as Instrument No. 2000-00006675, and the Plat for Phase II of Fairgreen Trace was recorded on October 19, 2001, as Instrument No. 2001-00067204, both aforementioned instruments recorded in the Office of the Recorder of Hamilton County, Indiana; and Section 10.3 of the Original Declaration states that the Declaration may be amended or modified at any time by an instrument approved and signed by the Owners of seventy-five percent (75%) of the Lots in Fairgreen Trace; and The Annual Meeting of the Owners and Members of the Fairgreen Trace Homeowners Association, Inc. ("Association") was held on November 16, 2005; and The Owners desire to amend certain provisions of the Original Declaration and to restate the same for the convenience of the Owners such that this Amended and Restated Declaration of Covenants, Conditions and Restrictions for Fairgreen Trace in no way nullifies or changes the Original Declaration or the effective date of the Original Declaration. However, upon the date of recording of this Amended & Restated Declaration with the Hamilton County Recorder's Office, the Original Declaration shall no longer be in effect and shall be replaced by the following. NOW, THEREFORE, the undersigned Owners, constituting more than of seventy- five percent (75%) of the Lots in Fairgreen Trace, hereby amend and restate the Original Declaration such that all of the platted Lots and lands located within Fairgreen Trace as they have been platted are held and shall be held, conveyed, hypothecated or encumbered, leased, rented, used, occupied and improved, subject to the following restrictions, all of which were and are declared and agreed to be in furtherance of a plan for the improvement and sale of said Lots and lands in Fairgreen Trace. Such restrictions below were and are established and agreed upon for the purpose of enhancing and -3- protecting the value, desirability and attractiveness of the development as a whole and of each of said Lots situated therein. All of the restrictions shall run with the land and shall be binding upon the Owners and upon the parties having or acquiring any right, title or interest, legal or equitable, in and to the real property or any part or parts thereof subject to such restrictions, and shall inure to the benefit of all successors in title to any real estate in the development. Now, therefore, the Original Declaration which is applicable to all Owners and residents within Fairgreen Trace is hereby amended and restated as follows: ARTICLE I Name The subdivision of the Property created by this Declaration shall be known and designated as Fairgreen Trace (hereafter ASubdivision@). ARTICLE II Definitions The following terms, when used throughout this Declaration, shall have the following meanings and definitions: Section 2.1 "Articles" means the Articles of Incorporation of the Association filed with the Secretary of State of Indiana, as the same may be amended from time to time. Section 2.2 "Association" means the FAIRGREEN TRACE HOMEOWNERS ASSOCIATION, INC., a non-profit corporation, its successors and assigns. -4- Section 2.3 "Board of Directors" means the Board of Directors of the Association. Section 2.4 "Common Area" means: (1) those portions of the Property, including improvements thereto, facilities and personal property owned, to-be-owned, leased or to-be- leased by the Association from time to time for the common use, benefit and enjoyment of the Owners, (2) Lake Area, and (3) items (if any) deemed Common Area for maintenance purposes only. Unless expressly stated to the contrary, the term Common Area as used herein (whether or not so expressed) shall include all portions of the Property designated on the Plat as a "Block", "Common Area", "C.A.", or such other areas within the Property that are not otherwise identified on the Plat as a lot or street. The Common Area has been conveyed to the Association by the original developer. Section 2.5 "Common Expenses" shall mean and refer to expenses of administration of the Association, and expenses for the upkeep, maintenance, repair and replacement of all Common Area, and all sums lawfully assessed against the Owners by the Association, and all sums, costs and expenses declared by this Declaration to be Common Expenses. Section 2.6 "Dwelling Unit" means any single-family residence situated upon a Lot. Section 2.7 "Lake Area(s)" means any Common Area on which a lake exists and "Lake" means a body of water which exists in a Lake Area. Section 2.8 "Lot" means any parcel of land designated as such upon the Plat or, after construction, that parcel of land upon which there is constructed a Dwelling Unit that was conveyed to an Owner by the original developer. Subject to any necessary approval of the appropriate governmental authority, a "Lot" may contain portions of real estate greater or less -5- than its originally platted dimensions if the original developer deemed it advisable in order to accommodate the construction of a Dwelling Unit. Section 2.9 "Owner" means the record owner, whether one or more persons or entities, of the fee simple title to any Lot which is a part of the Property, including contract sellers, but otherwise excluding those having such interest merely as security for the performance of an obligation. Section 2.10 "Plat" means the subdivision plats of the Property, which are recorded with the Hamilton County Recorder, as the same may be hereafter amended or supplemented pursuant to this Declaration. Section 2.11. "Property" and/or "Real Estate" means the real estate described in Exhibits A and B attached hereto and incorporated herein by reference. -6- ARTICLE III Property Rights, Easements and Encroachments Section 3.1 Owners' Easements of Enjoyment of Common Area. Every Owner shall have a nonexclusive right and easement of enjoyment, in common with all Owners, in and to any Common Area, which nonexclusive right and easement or enjoyment shall be appurtenant to and shall pass with title to every Lot (in the form of a right to membership in the Association), subject to the following provisions: (a) The right of the Association to charge reasonable admission and other fees for the use of recreational facilities, if any, situated upon the Common Area owned by the Association; (b) The right of the Association to suspend the voting rights and right to use of any recreational facilities, if any, by any Owner (i) for any period during which any assessment remains unpaid and (ii) for a period not to exceed sixty (60) days for any infraction of its published rules and regulations; (c) Those areas designated on a Plat as Block "A" Common Area, Block "B" Common Area, Block "C" Common Area, and Block "D" Common Area, shall be maintained by the Association in their then natural state except such selected clearing as from time to time may be necessary to implement good husbandry practices. (d) The area designated on the Plat as Block "D" Common Area may be used only as a passive recreational area. -7- (e) Structures are prohibited within or upon those areas designated on a Plat as Block "A" Common Area, Block "B" Common Area, Block "C" Common Area, or Block "D" Common Area. (f) The right of the Association to promulgate reasonable rules and regulations governing the use of the Common Area owned by the Association including, without limitation, parking, swimming, boating, fishing, (including the denial thereof of any such rights) and upon improvements, additions or alterations to the Lots and the Common Area owned by the Association; (g) The right of the Association to mortgage any or all of the Common Area owned by the Association, upon the approval of two-thirds (b) of the Members of the Association; (h) The easements reserved elsewhere in this Declaration and the right of the Association to grant further reasonable utility easements across and through the Common Area owned by the Association for the benefit of its members; (i) The right of the Association to dedicate or transfer all or any part of the Common Area owned by the Association to any public agency, authority or utility for such purposes and subject to such conditions as may be agreed to by the members or otherwise allowed pursuant to this Declaration, as amended. No such dedication or transfer, except as allowed pursuant to this Declaration, shall be effective unless there is recorded an instrument agreeing to such dedication or transfer signed by two-thirds (b) of the membership of the Association; (j) If ingress or egress to any Lot is through the Common Area, any conveyance or encumbrance of such Common Area is subject to such Lot Owner=s easement for ingress and egress; -8- (k) All other rights, obligations and duties as set forth in this Declaration, as the same may be from time to time amended or supplemented. Section 3.2 Delegation of Use. In accordance with the By-Laws and any reasonable and nondiscriminatory rules and regulations promulgated from time to time by the Board of Directors, and subject to the rights of others as set forth in this Declaration, any Owner may assign his or her right of enjoyment of the Common Area owned by the Association, to family members, guests, tenants or contract purchasers who reside on the Lot. Section 3.3 Certain Obligations and Access Rights to the Common Area. (a) Except as otherwise set forth in this Declaration, the Association, subject to the rights of the Owners as set forth in this Declaration, shall be responsible for the management and control, for the exclusive benefit of the Owners as provided herein, of the Common Area owned by the Association and for the maintenance of the same in good, clean, attractive, safe and sanitary condition, order and repair. (b) The Association shall have and is hereby granted a general right of access and easement to all of the Common Area owned by the Association and across the Lots, at reasonable times and at any time in case of emergency, as reasonably required by its officers, directors, employees and their agents and independent contractors, to the full extent necessary or appropriate to perform its obligations and duties as set forth in this Declaration. Section 3.4 General Drainage, Utility, Sewer and Other Development Easement - The following rights reserved in this Section shall not be exercised, after the conveyance of any Lot, in a manner that (i) unreasonably and adversely affects any Dwelling Unit or portion thereof located upon such Lot or the Owner=s use or enjoyment thereof, or (ii) unreasonably -9- restricts the rights of ingress and egress to such Lot. The following rights and easements reserved by the Association in this Section shall run with the land. (a) There shall be reserved to any public or private utility, a general easement ("Drainage, Utility and Sewer Easement") for drainage, utility and sewer purposes in, on and over all of the Common Area and any Lot, so as to permit said utility to properly install and allow to be maintained all electrical, telephone, water, gas, sanitary and storm sewer, television (including but not limited to cable and/or satellite) transmission facilities, security systems and other utility services (including all necessary lines, pipes, wires, cables, ducts, antennae and other equipment and facilities) to serve any Dwelling Unit constructed on the Property. Any Drainage, Utility, Sewer and other Development Easement shall include all areas of the Property outside any Dwelling Units, with the exception of any areas covered by chimneys, or patios. Improvements or permanent structures installed within the Common Area are subject to the rights (including the right to remove where reasonably necessary without duty of replacement or reimbursement) of any public or private utility to construct, maintain, repair or remove any necessary facilities. This easement shall be in addition to any easement defined upon a Plat as a drainage, sewer, utility, cable, landscape, sign, transmission, flowage or similar type easement. (b) The Association shall have an easement ("Lake Easement") and right-of-way in and to any Lake Area(s) or areas now or hereafter shown on the Plat as a "Block", "Common Area", or "Lake" or any other Common Area within the Property used as a water retention or detention area, or on which a Lake now exists or is later constructed, for the purpose of fulfilling any maintenance obligations set forth in this Declaration and/or establishing and maintaining proper surface water drainage throughout the Property, and an easement of ingress and egress through so much of the remainder of the Property as is reasonably necessary or appropriate, to perform such actions as the Association's Board deems necessary or appropriate, for the purpose of establishing and maintaining proper -10- surface water drainage throughout the Property, which such actions shall include the construction, repair and maintenance of retention and detention ponds or lakes in accordance with the requirements of applicable law and of all governmental agencies having jurisdiction (without undertaking any obligation or duty to exceed such requirements). (c) The Association shall have the right and an undefined sign and facilities easement ("Sign and Facilities Easement") to install, erect, construct and maintain an entryway sign or signs, directional signs, lighting, walkways, pathways, fences, walls and any other landscaping, architectural and recreational features or facilities considered necessary, appropriate, useful or convenient, anywhere upon the Property except upon any Lot. Any such signs shall comply with any applicable zoning requirements and all such facilities shall be maintained by the Association as a part of its Common Area maintenance obligations. (d) The Association reserves the full right, title and authority to: (i) Relocate, alter or otherwise change the location of any Drainage, Flowage, Utility, Sewer and Lake, Sign and Facilities Easement, or any facility at any time located therein or thereon; (ii) Grant such further easements, licenses and rights-of-way, temporary or permanent, exclusive or non-exclusive, surface or otherwise, as the Association's Board may deem necessary or appropriate, for ingress and egress, utility and similar purposes on or within any portion of the Property, for the benefit of the Property or any portion thereof; and, (iii) Describe more specifically or to change the description of any Drainage, Flowage, Utility, Sewer, Lake, Sign and Facilities Easement or any other easement, license or right-of-way now or hereafter existing on the Property, by written instrument, amended Plat or amendment to the Plat recorded in the Office of the Recorder of the County in which the Property is located. -11- (e) The title of the Association (as to the Common Area owned by the Association) and of any Owner of any Lot shall be subject to the rights and easements reserved herein. Section 3.5 Easement for Emergency Purposes. An easement is hereby dedicated and granted for use in the case of an emergency by emergency vehicles such as fire trucks, police cars and ambulances and emergency personnel, public and private, over and upon the Common Area. Section 3.6 Fee Title to Lot. The fee title to any Lot described as bounded by any street, lane, walkway, park, pond, lake, or any other common property which has not been dedicated or accepted by the public and the fee title to any Lot shown on any Plat as abutting upon any such common property shall not extend upon such common property and the fee title to such common property is reserved to the grantor to be conveyed to the Association for the common enjoyment of all residents in the Subdivision. Section 3.7 Designated Drainage, Utility, and Sewer Easements. There are strips of ground designated on the Plat as drainage easements, utility easements, sewer easements, sanitary sewer easements and storm sewer easements, or any combination thereof, which are hereby reserved to the appropriate governmental entities, public utilities, and private utilities for the installation and maintenance of swales, ditches, pipes, drains, sanitary sewers, manholes, detention and retention areas or other drainage facilities. Purchasers of Lots in this Subdivision shall take title subject to such easements hereby created and subject at all times to the rights of proper authorities to service and maintain such drainage facilities and easements, and no permanent structure of any kind and no part thereof except fences which do not retard or impede the flow of drainage water and which are approved pursuant to Section 6.2 below, shall be built, erected or maintained on said drainage easements, except by the original developer or its assigns of the Association. It shall be the responsibility of the -12- Association and the Owners of the areas enclosed within such easements to maintain such areas in such conditions that the flow of storm drainage waters on, across and from said areas shall not be impeded, diverted or accelerated. Such use for storm water movement or retention or detention is hereby declared to be an easement and servitude upon said land for the benefit of the Owners of other land included within the Plat, upstream or downstream, affected by such use and for any proper governmental agency or department or any private or public utility. All proper governmental agencies or departments and public and private utilities are hereby given the right to obtain access to such areas to perform maintenance and to perform such maintenance as may be necessary to protect that easement and servitude rights. It shall be the responsibility of the Association and the Owner of any Lot or parcel of land within the Plat to comply at all times with the provisions of the drainage plan as approved for the applicable Plat by the appropriate governmental agency or department and the requirements of all drainage permits for such Plat issued by those agencies. Further, there are easements and servitudes upon the land within the Plat in favor of surface water runoff along natural valleys and drainage channels running to Owners of other land contained within the Plat, upstream and downstream. It shall be the responsibility of the Association and the Owners of these natural valleys and channels to use their land and maintain said natural valleys and channels in such manner and condition that the flow of storm drainage waters on, across, from and to such areas shall not be impeded, diverted or accelerated. Section 3.8 Designated Easements for Landscaping, Mounding, Screening and Signage. Within any strips of ground shown or designated on a Plat as a landscape easement, landscape maintenance easement, landscape maintenance access easement, or by any similar language indicating a landscaping purpose, the Association reserves the exclusive and sole right to (i) erect signs which identify the Subdivision and (ii) install landscaping, mounding, walls, and screening. Notwithstanding anything in this Declaration to the contrary, -13- no planting shall be done, and no hedges, walls, signs, fences or other improvements shall be erected or maintained in the area of such easements, except by the original developer and thereafter by the Association. Furthermore, notwithstanding anything in this Declaration to the contrary, no planting shall be done, and no hedges, walls, fences, structures, signs, or other improvements shall be erected between (i) the area of any such easements and (ii) any perimeter roadway, public highway or right-of-way along the perimeter or boundary of the Property, except by the original developer or the Association. Section 3.9 Street Dedication. All streets now or hereafter located upon the Property are hereby dedicated to the public. Section 3.10_Easement Work. Notwithstanding any architectural approval under Section 6.2 below, during the course of any maintenance, service, repair or work upon any easement, the Association, any private utility, any public utility, and/or any governmental entity shall have the right and the authority, without any obligation or liability whatsoever planted, to any Owner, to remove, damage, or destroy any fence or other structure or landscaping built, erected, maintained or planted in any easement described in Section 3.7 and Section 3.8 above. Section 3.11 No Access. There may be strips of ground designated on the Plat as "no access strips", "no access", "no access easement", "no access esmt", or by other similar language. Vehicular ingress, egress, and traveling and/or the construction of improvements for such ingress, egress and/or traveling, is prohibited on, over, or across any such strips or areas. ARTICLE IV Association Membership, Voting Rights, -14- Board of Directors, and Professional Management Section 4.1 Membership. Every Owner of a Lot shall be a Member of the Association. A membership in the Association shall be appurtenant to and may not be separated from ownership of any Lot. Section 4.2 Class of Membership and Voting Rights. The Association shall have one class of membership. Members shall be all Owners. Members shall be entitled to one (1) vote for each Lot owned. When more than one person holds an interest in any Lot, all such persons shall be members. The vote for such Lot shall be exercised as the members holding an interest in such Lot determine among themselves, but in no event shall more than one vote be cast with respect to any Lot. Section 4.3 Board of Directors. The Owners shall elect a Board of Directors of the Association as prescribed by the Association=s Articles and By-Laws. The Board of Directors shall manage the affairs of the Association. Directors must be members of the Association. Section 4.4 Professional Management. No contract or agreement for professional management of the Association shall be for a term in excess of one (1) year. Any such agreement or contract shall provide for termination by either party with or without cause and without payment of any termination fee. ARTICLE V Covenant for Maintenance Assessments -15- Section 5.1 Creation of the Lien and Personal Obligation of Assessments. Each Owner of any 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: (a) Regular Yearly Assessments (for maintenance, repairs and ordinary operating expenses, including Common Expenses); and (b) Special Assessments for capital improvements and operating deficits and for special maintenance or repairs as provided in this Declaration. Such assessments shall be established, shall commence upon such dates and shall be collected as hereinafter provided. All such assessments, together with late fees, costs of collection and reasonable attorneys' fees, shall be a charge on the land and shall be a continuing lien upon the property against which each such assessment is made. Each such assessment, together with late fees, costs, and reasonable attorneys fees, shall also be the personal obligation of the person who was the Owner of such property at the time when the assessment fell due. The personal obligation for delinquent assessments shall not pass to such Owner=s successors in title unless expressly assumed by them. Section 5.2 Purpose of Regular Yearly Assessments. The Regular Yearly Assessments levied by the Association shall be used exclusively, in the reasonable discretion of the Board of Directors of the Association, for the promotion of the recreation, health, safety and welfare of the residents in the Property, for the improvement, maintenance and repair of the Common Area, for the performance of the obligations and duties of the Association and for other purposes only as specifically provided herein. As and if necessary, a portion of the Regular Yearly Assessments shall be set aside or otherwise allocated in a reserve fund for the purpose of providing repair and replacement of the Common Area, and other capital improvements which the Association is required to maintain. -16- Section 5.3 Increases in Regular Yearly Assessments. (a) The Regular Yearly Assessment may be increased each calendar year not more than ten percent (10%) above the Regular Yearly Assessment for the previous year, without a vote of the membership. (b) The Regular Yearly Assessment may be increased each calendar year by more than ten percent (10%) above the Regular Yearly Assessment for the previous year, only by approval of a majority of the Members voting at an annual or special meeting of the Association duly called for such purpose at which a quorum is represented in person or by proxy. (c) The Board of Directors from time to time may fix the Regular Yearly Assessment, without any vote of the membership, at any amount not in excess of the ten percent (10%) maximum as set forth above. Section 5.4 Special Assessments for Capital Improvements and Operating Deficits. In addition to the Regular Yearly Assessments authorized above, the Association may levy a Special Assessment applicable to that year only for the purpose of defraying, in whole or in part, the cost of any construction, reconstruction, repair or replacement of any capital improvement which the Association is required to maintain, or to recover any operating deficits which the Association may from time to time incur. However, a Special Assessment must be approved by a majority of the Members voting at an annual or special meeting of the Association duly called for such purpose at which a quorum is represented in person or by proxy. -17- Section 5.5 Uniform Rate of Assessment. Regular Yearly Assessments and Special Assessments must be fixed at a uniform rate for all Lots. Section 5.6 Date of Commencement of Yearly Assessments; Due Dates. The Regular Yearly Assessment shall commence as to each Lot as of January 1 each year. The Board of Directors shall fix any increase in the amount of the yearly assessments at least thirty (30) days in advance of the effective date of such increase. Written notice of any increase in the Regular Yearly Assessment, and written notice of any Special Assessment and such other assessment notices as the Board of Directors shall deem appropriate, shall be sent to every Owner subject thereto. The due dates for all assessments, and the assessment and collection period (i.e., annual, monthly, lump-sum or otherwise) for any Special Assessments, shall be established by the Board of Directors. The Association shall, upon demand, and for a reasonable charge not to exceed $100, furnish a certificate signed by an Officer of the Association setting forth whether the assessments on a specified Lot have been paid. A properly executed certificate from the Association regarding the status of assessments for any Lot shall be binding upon the Association as of the date of its issuance. Section 5.7 Effect of Nonpayment of Assessments: Remedies of the Association. If any assessment (or periodic installment of such assessment, if applicable) is not paid on the due date, then the entire unpaid assessment (together with late fees, costs of collection and attorneys' fees) shall become delinquent and shall constitute a continuing lien on the Lot to which such assessment relates, binding upon the then Owner, his heirs, devisees, successors and assigns. The personal obligation of the then Owner to pay such assessments, however, shall not pass to such Owner's successors in title unless expressly assumed by them. If any assessment is not paid within thirty (30) days after the due date, the assessment shall be subject to a late fee in an amount determined by the Board, and the Association may bring an action at law against the Owner personally obligated to pay the same, or foreclose the lien against the property, or both. In any collection action to recover an assessment, the -18- Association shall be entitled to recover costs and expenses of such action incurred, including but not limited to collection costs incurred by the Association to a managing agent (if any) for processing delinquent Owners' accounts and reasonable attorney's fees, from the Owner of the respective Lot, regardless of whether litigation is initiated. No Owner may waive or otherwise escape liability for the assessments provided for herein by nonuse of the Common Area owned by the Association or abandonment of his Lot. Section 5.8 Subordination of the Lien to Mortgages; Sale or Transfer. The lien of the assessments provided for herein shall be subordinate to the lien of any first mortgage. The sale or transfer of any Lot pursuant to the foreclosure of any first mortgage on such Lot (without the necessity of joining the Association in any such foreclosure action) or any proceedings or deed in lieu thereof shall extinguish the lien of all assessments becoming due prior to the date of such sale or transfer. No sale or transfer of any Lot (whether voluntary or pursuant to foreclosure or otherwise) shall relieve such Lot from liability for any assessments thereafter becoming due or from the lien thereof; and, except as hereinabove provided, the sale or transfer of any Lot shall not affect the lien of assessments becoming due prior to the date of such sale or transfer except to the extent that a purchaser may be protected against the lien for prior assessments by a binding certificate from the Association, issued pursuant to this Declaration, as to whether or not such assessments have been paid. ARTICLE VI Use, Restrictions, and Architectural Control Section 6.1 Lot Use and Conveyance. All Lots shall be used exclusively for single family detached residential purposes. Except as provided in the Declaration, no Lot shall be subdivided to form units of less area. Each Lot shall be conveyed as a separately designated -19- and legally described freehold estate subject to the covenants, conditions and restrictions contained herein. Section 6.2 Architectural Control. No building, mailbox, fence, wall or other structure, or improvement of any kind shall be commenced, erected or maintained upon any Lot, nor shall any exterior addition to or change or alteration therein be made until the plans and specifications showing the nature, kind, shape, height, materials, color and location of the same shall have been submitted to and approved in writing as to harmony of external design and location in relation to surrounding structures and topography by the Board of Directors. The Board may appoint three (3) or more Owners to an Architectural Committee. Any change in the appearance or the color of any part of the exterior of a residence shall be deemed a change thereto and shall require approval. However, there shall be no such approval of the planting of hedges, walls, fences, structures and/or other improvements prohibited under Section 3.8 above, and any such approval shall be null and void. In the event that written approval is not received as required hereunder within thirty (30) days after complete plans and specifications have been submitted and received by the Board or Architectural Committee, then the request for approval shall be deemed denied. Except for trees that are dead or decayed and dangerous, mature trees (having a trunk in excess of six (6) inches in diameter measured at a point three (3) feet from undisturbed ground) shall not be removed unless approved by the Architectural Committee. It is intended that the members of the Architectural Committee exercise discretion in the performance of their duties consistent with the provisions hereof, and every Owner by the purchase of a Lot shall be conclusively presumed to have consented to the exercise of discretion by such members. In any judicial proceeding challenging a determination by the Architectural Committee and in any action initiated to enforce this Declaration in which an abuse of discretion by the Architectural Committee is raised as defense, abuse of discretion -20- may be established only if a reasonable person, weighing the evidence and drawing all inferences in favor of the Architectural Committee, could only conclude that such determination constituted an abuse of discretion. The Architectural Committee may inspect work being performed without the Owner=s permission to assure compliance with these restrictions and applicable regulations. Neither the Architectural Committee nor any agent thereof, or the Association shall be liable in any way for costs, fees, damages, delays, or any charges or liability whatsoever relating to the approval or disapproval of any plans submitted to it, nor shall the Architectural Committee or the Association be responsible in any way for any defects in any plans, specifications or other materials submitted to it, or for any defects in any work done according thereto. Further, the Architectural Committee and/or Association make no representation or warranty as to the suitability or advisability of the design, the engineering, the method of construction involved, or the materials to be used. All parties should seek professional construction advise, engineering, and inspections on each lot prior to proposing construction. Section 6.3 Leasing. Any Lot may be leased by its Owner. However, leasing shall be subject to the following provisions: (a) All leases, including renewals, shall be in writing, and no lease shall be entered into for a term of less than one (1) year without the prior written approval of the Board of Directors. (b) A copy of each executed lease by an Owner which identifies the tenant (but which may have the rental amount deleted) shall be provided to the Board by the Owner within thirty (30) days after execution. (c) No portion of any Dwelling Unit other than the entire Dwelling Unit shall be leased for any period. -21- (d) No subleasing shall be permitted. (e) All leases shall be made expressly subject and subordinate in all respects to the terms of this Declaration, the By-Laws, Articles of Incorporation, and any rules and regulations promulgated by the Board of Directors, as amended, to the same extent as if the tenant were an Owner and a member of the Association. (f) All leases shall provide for direct action by the Association and/or any Owner against the tenant with or without joinder of the Owner of such Dwelling Unit. If such provision is not in the lease, it will be deemed to be in such lease. (g) The Owner shall supply copies of such legal documents to the tenants prior to the effective date of the lease. (h) All Owners who do not reside in the home shall provide the Board with the name of the tenant(s) and any other residents living in the home. Section 6.4 Animals. No animals shall be kept or maintained on any lot except domestic, household pets traditionally kept in individual residences throughout the state of Indiana. All such pets shall be kept reasonably confined so as not to become a nuisance. Excessive barking of dogs or vicious animals shall constitute a nuisance and may be ordered by the Association to be removed from the property. Section 6.5 Outside Storage. All clotheslines, equipment, garbage cans, service yards, woodpiles or storage piles shall be kept from view of neighboring homes and streets. All rubbish, trash or garbage shall be regularly removed from the premises, and shall not be allowed to accumulate thereon. Trash must be stored in enclosed containers. Section 6.6 Setback Lines. Front Building lines are hereby established as shown on the Plat. Between such Front Building lines and the right-of-way lines there shall be erected, -22- placed or altered no structure or part thereof, except fences in keeping with architectural style as were specifically approved by the original developer, and thereafter by the Association Board of Directors or Architectural Review Committee; provided, however, except that in no case will such fences be permitted on the public right-of-way. The building lines which are from public right-of-way lines are parallel to and measured perpendicularly from these public right-of-way lines. Section 6.7 Side Setbacks. The minimum side yard and minimum rear yard requirements shall be those established by the applicable zoning and subdivision control ordinances. Section 6.8_Outbuildings. No outbuilding of any kind, including but not limited to mini- barns and sheds, shall be permitted at any time. Section 6.9 Motor Vehicle Repair. The repair of inoperative motor vehicles or material alteration of motor vehicles shall not be permitted on any Lot unless entirely within a garage. Section 6.10 Nuisances. No noxious or offensive activities shall be carried on or be permitted to exist on any Lot, nor shall anything be done thereon which may be or become an annoyance or nuisance, nor shall the premises be used in any unlawful manner or in any manner to cause injury to the reputation of the Property, including without limiting the generality of the foregoing, noise by the use of any musical instruments, radio, television, loud speakers, electrical equipment, amplifiers or other equipment or machines, or by loud persons, and objectionable odors. Any structure or building permitted to be constructed on any Lot by this Declaration, which may be all or in part destroyed by fire, wind, storm or any other reason, shall be rebuilt and restored to its previous condition within a reasonable length of time, and all debris accumulated in connection therewith shall be removed within a reasonable time after any such occurrence. -23- Section 6.11 Permitted Uses. No use shall be made of any Lot except as permitted by the applicable zoning and subdivision control ordinances under which this Property is developed. Section 6.12 Drains. No house footing drain or roof water drain shall be discharged into the sanitary sewers. Section 6.13 Residential Use. Lots may be used only for residential purposes and only for one single-family dwelling, a private garage for a minimum of two (2) vehicles (maximum of four (4) vehicles), and other such improvements as approved by the Architectural Committee and permitted by this Declaration. No tennis court, basketball court, or other sports courts shall be permitted. All lots in this subdivision shall be designated as residential Lots, and no home shall exceed two and one half (2-2) stories or thirty-five (35) feet in height. Section 6.14_Size. No Dwelling Unit may be constructed on any Lot unless such Dwelling Unit, exclusive of open porches, attached garages and basements (whether finished or unfinished), shall (i) in the case of a one story structure, have a ground floor area of at least 1,500 square feet, (ii) in the case of a one and one-half (1-2) story structure, have an overall square footage of at least 1,800 square feet, and (iii) in the case of a two-story structure, have an overall square footage of at least 2,000 square feet. Section 6.15 Unsightly Growth. In order to maintain the standards of the Property, no weeds, underbrush or other unsightly growths shall be permitted to grow or remain upon any Property, and no refuse pile or unsightly objects shall be allowed to be placed or suffered to remain anywhere thereon. Failure to comply shall warrant the Association's agents to cut weeds or clear the refuse from the Property at the expense of the Owner, and there shall be -24- a lien against said Property for the expense thereof, which lien shall be due and payable immediately. If such lien is not promptly paid, the Association may file suit and recover such amount together with reasonable attorneys fees and costs of collection. Section 6.16 Site Visibility. No fence, wall, hedge or shrub planting which obstructs sight lines at elevations between two (2) feet and nine (9) 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 twenty-five (25) feet from the intersection of said street lines, or in the case of a rounded property corner from the intersection of the street lines extended. The same sightline limitations shall apply to any Lot within ten (10) feet from the intersection 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. No fences shall be permitted to be constructed between the front set back line and the street curb. Section 6.17 Semi-tractor trucks, trailers, etc. No semi-tractor trucks, semi-trucks, semi- tractor trailers, boats, campers, recreational vehicles, mobile homes, disabled vehicles, and/or trailers shall be permitted to park on the Property or a Lot unless fully enclosed in a garage, or unless the same is necessary and incidental to the Association=s business on the Property. Section 6.18_Sign Limitations. No signs of any kind, other than those authorized by the Board, may be displayed in public view on any Lot, except "house for sale" signs. One "house for sale" sign, measuring three (3) feet by three (3) feet or less, may be displayed on a Lot offered for sale. The sign must be located in the yard directly in front of the house, inside the sidewalk area. Section 6.19 Lakes, Lake Area(s). Except as otherwise provided, no individual using -25- a Lake, if any, has the right to cross another Lot or trespass upon shoreline not within a Common Area owned by the Association, subject to the rights of the Association, its agents, employees, heirs, successors and assigns as set forth in the Declaration. No one shall do or permit any action or activity which could result in pollution of any Lake, diversion of water, elevation of any Lake level, earth disturbance resulting in silting or any other conduct which could result in an adverse effect upon water quality, drainage or proper Lake management except as provided in the Declaration. A Lake may not be used for swimming, ice skating, boating, or for any other purpose, except for drainage of the Property, unless expressly and specifically approved by the Board of Directors in writing and allowed by law. Lakes and Lake Areas may or may not exist on the Property, and the reference throughout this Declaration to Lakes and Lake Areas is made in order to address Lakes and Lake Areas, if any, which now exist or are later constructed upon the Property. Only the Association shall have the right to store items or develop recreational facilities upon any Common Area owned by the Association adjacent to a Lake. Section 6.20 Rules and Regulations. The Board of Directors from time to time may promulgate, amend and change further rules and regulations concerning the use of Lots and the Common Area owned by the Association, so long as a majority of the Owners voting at a meeting called for such purpose at which a quorum is present approve of the same. Copies of all rules and regulations shall be furnished by the Board to all Owners, at the Owner's last known address, after they become effective. The Association shall have current copies of the Declaration, Articles and By-Laws, and other rules concerning the Property as well as its own books, records and financial statements available for inspection by Dwelling Unit Owners or by holders, insurers and guarantors of first mortgages, that are secured by Dwelling Units in the Property. These documents shall be available after advance written request during normal business hours or under other reasonable circumstances. Section 6.21 Swimming Pools. Above ground swimming pools are prohibited. In -26- ground swimming pools are permitted if approved by the Architectural Committee. Section 6.22 Outside Use of Lots. No fences, hedges, walls, substantial landscaping or other improvements shall be erected or maintained upon the Property, except as approved by the Architectural Committee. Section 6.23 Mailboxes. All mailboxes installed upon Lots shall be uniform and shall be of a type, color and manufacture approved by the Board of Directors, and must be in good condition and repair at all times. Section 6.24 Yard Lights. Each Lot shall have an operable yard light at a location, having a height and of a type, style and manufacture approved by the Board of Directors. Each such light fixture shall also have a bulb of sufficient wattage 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. The yard light thereafter shall be maintained in proper working order by the Owner of each Lot. Section 6.25 Home Occupations. No Lot or Dwelling Unit located thereon shall be used for any purpose other than as a single family residence, except a home occupation which is both permitted under the applicable zoning ordinance and which also complies with the following guidelines: (a) Any home occupation must be conducted entirely within the residence and conducted solely by a member of the immediate family residing in said Dwelling Unit; (b) Any home occupation must be clearly incidental and secondary to the use of the Dwelling Unit for residential purposes; -27- (c) There can be no sign or display that will indicate from the exterior of the Dwelling Unit that the Dwelling Unit is being used, in whole or in part, for any purpose other than that of a residential dwelling; (d) No commodity can be sold from the Lot or Dwelling Unit located thereon. (e) No person can be employed other than a member of the immediate family residing in the Dwelling Unit; (f) No manufacturer or assembly operations can be conducted; and (g) Customers cannot enter upon the Lot or Dwelling Unit for the purpose of conducting business. In no event shall the following similar activities be conducted: child care, barber shop, styling salon, animal hospital, kennel, any form of animal care or treatment such as dog trimming, or any similar activities. Section 6.26__Fences. The Architectural Committee, prior to any installation, must approve any fencing and landscape screening. It is the goal to keep all fencing or screening harmonious with the architectural character of the community. No fence or screen will be approved which obstructs necessary sight lines for vehicular traffic. Undue obstruction of views from adjoining properties and amenity areas will be taken into consideration by the Architectural Committee when reviewing fences for approval. No front yard fencing is permitted. If approved by the Architectural Committee, fences may be privately installed but must be constructed to professional levels of quality, design, material, composition, and color as determined by the Architectural Committee. All installed fences may be inspected by the Architectural Committee after completion in order to ensure that the fence is of a professional quality, and final approval of such fence shall be deemed withheld until completion of this final review. All fences shall be kept in good repair by the Owner. No fence shall be located any closer to the front line than the rear foundation line of the residence. No fence shall exceed -28- six feet (6') in height unless otherwise approved by the Architectural Committee. Fences are to be vinyl coated chain link, wrought iron, cedar, or treated pine. Further, cedar or treated pine fences are to be dog-eared, flattop shadow box style with 1" x 6" vertical boards, and are to remain unpainted. The Architectural Committee must approve all fencing materials, design, and location. Walls above grade must be constructed of natural stone, masonry, wood or shadow box fencing. The Architectural Committee will approve landscape screening materials, design, and location on an individual basis. The exact location, material, color and height of the fence and rendering or photograph thereof shall be submitted to the Architectural Committee for written approval at least thirty (30) days prior to proposed construction. If however, approval has not been received by applicant in writing within thirty (30) days after submitted, then said request shall be considered DENIED. Section 6.27 Animal Kennels. Animal kennels or quarters which are not connected to a Dwelling Unit are prohibited. Animal quarters or kennels which are connected to the Dwelling Unit must be approved by the Architectural Committee. Section 6.28_Garages. Each attached garage shall be designed as a part of each Dwelling Unit to which it is attached. Further, garage doors shall remain closed except when entering, exiting or otherwise having the need to access the garage. Section 6.29 Exterior Surfaces. The concrete or block foundation of any single family Dwelling Unit or accessory structure constructed on a Lot shall be covered on the exterior with wood, brick or stone veneer so that no portion of the exterior thereof is left exposed above ground. No Dwelling Unit or other structure shall contain aluminum or vinyl siding. -29- Section 6.30_Pitches. The roof of each single-family Dwelling Unit constructed on a Lot (excluding that portion of the roof covering the attached garage or open or enclosed porch) shall have a pitch of between 6-12 to 12-12 or greater unless otherwise approved by the Architectural Committee. Section 6.31_Tree Houses and Play Ground Equipment. No tree houses will be allowed on any Lot. Further, any and all playground equipment shall be made of wood as its primary building material. In no event shall any playground equipment be allowed that uses metal or plastic as its primary building material. The location and installation of any playground equipment shall be done only with the express written approval of the Architectural Committee. ARTICLE VII Maintenance, Repairs and Replacements Section 7.1 By Owners. Except as specifically provided in this Declaration, each Owner shall furnish and be responsible for the maintenance of all portions of his Lot. All fixtures and equipment installed within or as part of the Dwelling Unit, commencing at the points where the utility lines, pipes, wires, conduits or systems enter the Lot upon which said Dwelling Unit is located, shall be maintained and kept in repair by the Owner thereof. Each Owner shall promptly perform all maintenance and repair of his Lot and Dwelling Unit which, if neglected, might adversely affect any other Lot or Dwelling Unit or any part of the Common Area owned by the Association. Such maintenance and repairs include, but are not limited to, all exterior surface, siding, roof, gutters, internal water lines, plumbing, electric lines, gas lines, appliances, and all other fixtures, equipment and accessories belonging to the Owner and a part of or appurtenant to his Dwelling Unit or Lot. -30- Section 7.2 Common Properties and Lawns by the Association. (a) The Association, as part of its duties, and as part of the Common Expenses, shall provide for: (i) Maintenance of the Common Area. Maintenance of the Common Area shall include, but shall not be limited to, fertilizing, treating any Lakes, mowing and replanting when necessary of the grass and trees and maintenance of any other improvement within the Common Area; (ii) Maintenance of the entry signs, permanent subdivision identification sign, and landscaping installed by the original developer of the Association in any Common Area, or any Landscape Easement, Landscape Maintenance Easement, Landscape Maintenance Access Easement or similar easement; (iii) The maintenance of any street lights installed by the original developer or the Association and which are not located upon any Lot; and, (iv) The maintenance of any brick surface installed by the original developer on any internal street or entryway, and the maintenance of any private streets not dedicated to the public. The Board of Directors may adopt such other rules and regulations concerning maintenance, repair, use and enjoyment of the Common Area owned by the Association (or any items deemed Common Area for purposes of maintenance only) as it deems necessary. (b) Notwithstanding any obligation or duty of the Association to repair or maintain any of the Common Area owned by the Association (or any items deemed Common Area for purposes of maintenance only), if, due to the willful, intentional or negligent acts or omissions of an Owner or a member of his family or of a guest, tenant, invitee or other occupant or visitor of such Owner, damage shall be caused to the Common Area owned by the -31- Association (or any items deemed as such for purposes of maintenance only), or if maintenance, repairs or replacements shall be required thereby which would otherwise be at the Common Expense, then such Owner shall pay for such damage and such maintenance, repairs and replacements, as may be determined by the Association, 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 become a part of the assessment to which such Owner=s Lot is subject. (c) The authorized representatives of the Association, the Board of Directors and the Managing Agent for the Association (if any) are hereby granted an easement for access upon and to any Lot as may be required in connection with maintenance only, repairs or replacements of or to the Common Area owned by the Association or any items deemed as Common Area for purposes of maintenance only, including, but not limited to, access to any easements reserved by any Plat of any portion of the Property for such purposes. ARTICLE VIII Insurance Section 8.1 Liability Insurance. The Association shall purchase a master comprehensive general liability insurance policy in such amount or amounts as the Board of Directors shall deem appropriate from time to time. Such comprehensive general liability insurance policy shall cover the Association, its Board of Directors, any committee or organ of the Association or 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 Association. It shall also cover all Common Area owned by the Associations, public ways and any other areas under the Association=s control or supervision. The premiums for all such liability policies shall be a -32- Common Expense. Section 8.2 Fidelity Bonds. The Association shall have blanket fidelity bonds for anyone who either handles or is responsible for funds held or administered by the Association, whether or not they receive compensation for their services. The Association bonds shall name the Association as the obligee and the premium shall be paid as a Common Expense by the Association. Any management agent that handles funds for the Association shall be covered by its own fidelity bond, which must provide the same coverage required of the Association. The Association shall be named as an additional obligee in the management agent=s bond. The fidelity bond shall cover the maximum funds that will be in the custody of the Association or its management agent at any time while the bond is in force. In addition, the fidelity bond coverage must at least equal one (1) years= assessments on all Dwelling Units in the Property, plus the Association=s reserve funds. If available, the fidelity bonds must include a provision that calls for ten (10) days' written notice to the Association or insurance trustee before the bond can be canceled or substantially modified for any reason. Section 8.3 Miscellaneous Insurance Provisions. The Association shall obtain any other insurance required by law to be maintained, including but not limited to workers compensation insurance, and such other insurance as the Board of Directors shall from time to time deem necessary, advisable or appropriate. Such insurance coverage shall also provide for and cover cross liability claims of one insured party against another insured party. Such insurance shall inure to the benefit of the Association, its Board of Directors and any managing agent acting on behalf of the Association. The premiums for all such insurance coverage shall be a Common Expense. Section 8.4 Casualty and Restoration. Damage to or destruction of any Common Area actually owned by the Association due to fire or any other casualty or disaster shall be promptly repaired and reconstructed by the Association and the proceeds of insurance, if any, -33- shall be applied for that purpose. The same obligation shall apply to an Owner, and not the Association, for damage or destruction to the Owner=s Dwelling Unit. For purposes of this Section, repair, reconstruction and restoration shall mean construction or rebuilding of the damaged property to as near as possible the same condition as it existed immediately prior to the damage or destruction, with the same or a similar type of architecture. Section 8.5 Insufficiency of Insurance Proceeds. If the insurance proceeds received by the Association as a result of any such fire or any other casualty or disaster are not adequate to cover the cost of repair and reconstruction, or in the event there are no insurance proceeds, the cost for restoring the damage and repairing and reconstructing the Common Area actually owned by the Association or any improvements damaged or destroyed (or the costs thereof in excess of insurance proceeds received, if any) shall be paid by the Association which shall then have the right to levy a Special Assessment against all Lots for such deficiency. Section 8.6 Surplus of Insurance Proceeds. In the event that there is any surplus of insurance proceeds after the reconstruction or repair of the damage has been fully completed and all costs paid, such sums may be retained by the Association as a reserve or may be used in the maintenance and operation of the Property. The action of the Board of Directors in proceeding to repair or reconstruct damage shall not constitute a waiver of any rights against any Owner for committing willful or malicious damage. ARTICLE IX Mortgages Section 9.1 Mortgagee Rights. In addition to any other rights provided elsewhere in this Declaration to mortgagees, any lender or lenders holding a first mortgage or first -34- mortgages upon any Lot or Lots, jointly or singly, may pay any real estate taxes or other taxes or charges which are in default and which may or have become a charge or lien against any Common Area owned by the Association or any other property owned by the Association; and may pay any overdue premiums on any hazard, casualty, liability or other insurance policies or secure new insurance coverage on the lapse of any policies for any such property owned by the Association or covering any property for which the Association has an obligation to maintain insurance coverage. Any such lender or lenders making payments in accordance with this Section shall be entitled to immediate reimbursement therefor from the Association along with any costs incurred, including reasonable attorneys= fees. Section 9.2 Notice to Mortgagees. The Association, upon request, shall provide to any lender holding a first mortgage upon any Lot, a written certificate or notice specifying unpaid assessments and other defaults of the Owner of such Lot, if any, in the performance of such Owner=s obligations under this Declaration, the Articles of Incorporation of the Association, its By-Laws or any other applicable documents, which default has not been cured within sixty (60) days. A reasonable charge maybe made by the Association for the issuance of any such certificate or notice, and any such certificate properly executed by an officer of the Association shall be binding upon the Association, as provided in this Declaration. Section 9.3_Condemnation and Insurance Awards. No provisions of this Declaration, or any amendment thereto, shall give an Owner, or any other party, priority over any rights of the first mortgagee of a Lot pursuant to its mortgage in the case of a distribution to such Owner of insurance proceeds or condemnation awards for losses to or a taking of Common Area property. Section 9.4 Right of First Refusal. The Association DOES NOT have the Aright of first refusal@ to purchase any Dwelling Unit. Any right of "right of first refusal" subsequently granted to the Association through amendment of the Declaration, Association Articles, -35- Association By-Laws or any other document governing the development and administration of the Properties must receive the prior written approval of the Federal Housing Administration or Secretary of the Department of Housing and Urban Development. Any "right of first refusal" subsequently added in the Declaration, Association Articles, Association By-Laws or any other document governing the development and administration of the Property must not impair the rights of a first mortgagee to: (a) Foreclose or take title to a Dwelling Unit, and the Lot upon which the Dwelling Unit is situated, pursuant to the remedies in the mortgage; (b) Accept a deed or assignment in lieu of foreclosure in the event of default by a mortgagor; or (c) Sell or lease a unit acquired by the mortgagee. Section 9.5 Unpaid Dues or Charges. Any first mortgagee who obtains title to a Dwelling Unit, and the Lot upon which the Dwelling Unit is situated, pursuant to the remedies in the mortgage or through foreclosure, will not be liable for the Dwelling Unit=s unpaid dues or charges accrued before the acquisition of the title to the Dwelling Unit by the mortgagee. ARTICLE X General Provisions Section 10.1 Right of Enforcement. In the event of a violation, or threatened violation, of any of the covenants, conditions and restrictions herein enumerated, the Association or any Owner and all parties claiming under them shall have the right to enforce the covenants, conditions and restrictions contained herein, and pursue any and all remedies, at law or in equity, available under applicable Indiana law, with or without proving any actual damages, including the right to secure injunctive relief or secure removal by due process of any structure -36- not in compliance with the covenants, conditions and restrictions contained herein, and shall be entitled to recover reasonable attorneys= fees and the costs and expenses incurred as a result thereof. Section 10.2 Severability and Waiver. Invalidation of any one 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. 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 as 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. Section 10.3 Amendment. This Declaration and the covenants, conditions and restrictions set forth in this Declaration, as from time to time amended in the manner hereafter set forth, shall run with the land and shall be binding upon the persons owning any portion of the Property and all parties closing under them. This Declaration may be changed, amended or modified at any time upon approval by the Owners of a majority of the Lots in Fairgreen Trace. Such approval for an amendment to this Declaration may be obtained: (a) at a meeting of the members of the Association duly called and held in accordance with the provisions of the Association's By-Laws; or (b) pursuant to any other procedure recognized under Indiana law, including those recognized under the Indiana Nonprofit Corporations Act of 1991, as amended, including, but not limited to, written mail-in ballots. The President and Secretary of the Association shall execute the amendment, certifying -37- that the Owners of a majority of the Lots approved such amendment. Thereafter, the amendment shall be filed with the Hamilton County Recorder. Section 10.4 Condemnation, Destruction or Liquidation. The Association shall be designated to represent the Owners in any proceedings, negotiations, settlements or agreements for the handling of any losses or proceeds from condemnation, destruction or liquidation of all or a part of the Common Area owned by the Association, or from the termination of the development. Each Dwelling Unit Owner, by his acceptance of a deed, appoints the Association as his attorney-in-fact for this purpose. Proceeds from the settlement will be payable to the Association for the benefit of the Dwelling Unit Owners and their mortgage holders. Any distribution of funds in connection with the termination of this development shall be made on a reasonable and an equitable basis. IN WITNESS WHEREOF, the undersigned Owners of Lots have caused this Amended and Restated Declaration to be executed as of the last date of the following signature pages. [The remainder of this page left blank intentionally] EXHIBIT A Part of the Southeast Quarter of Section 36, Township 18 North, Range 3 East of the Second Principal Meridian in Hamilton County, Indiana described as follows: Commencing at the Southeast Corner of said Quarter Section; thence on an assumed bearing of North 89 degrees 19 minutes 05 seconds West along the south line of said Quarter Section 820.00 feet to the Point of Beginning; thence continuing North 89 degrees 19 minutes 05 seconds West along said South line 519.25 feet; thence North 00 degrees 00 minutes 00 seconds East parallel with the East line of said Quarter Section 1251.25 feet; thence South 89 degrees 19 minutes 05 seconds East 139.25 feet; thence South 00 degrees 00 minutes 00 seconds West parallel with the East line of said Quarter Section 132.00 feet; thence South 89 degrees 41 minutes 42 seconds East 379.98 feet; -38- thence South 00 degrees 00 minutes 00 seconds West parallel with the East line of said Quarter Section 1121.75 feet to the Point of Beginning. Containing 13.77 acres, more or less. EXHIBIT B Part of the Southeast Quarter of Section 36, Township 18 North, Range 3 East in Hamilton County, Indiana described as follows: Commencing at the southeast corner of said Quarter Section; thence North 89 degrees 19 minutes 05 seconds West (assumed bearing) along the south line of said Quarter Section, 385.00 feet to the Point of Beginning; thence continuing along said south line North 89 degrees 19 minutes 05 seconds West 80.04 feet to the west line of the abandoned Traction Company Line and being a point on a curve to the left having a radius of 2824.79 feet, the radius point of which bears North 87 degrees 37 minutes 01 seconds West, the following two courses being along said abandoned Traction Company Line; (1) thence northerly along said curve an arc length of 77.23 feet to a point which bears South 89 degrees 11 minutes 00 seconds East from said radius point; (2) thence North 00 decrees 49 minutes 00 seconds East 222.72 feet to the north line of the real estates described in deed to Roger E. & Anita L. Nix per Instrument #9427864 as recorded in the Office of the Recorder of said County; thence North 89 degrees 19 minutes 56 seconds West along said north line, 117.23 feet to the northwest corner of said real estate; thence South 00 degrees 35 minutes 28 seconds West along the west line thereof, 299.91 feet to the south line of said Quarter Section; thence North 89 degrees 19 minutes 05 seconds West along said south line, 239.97 feet to the east line of the real estate described in deed to Trinity Homes per Instrument #9955418 as recorded of the Office of the Recorder of said County; thence North 00 degrees 00 minutes 00 seconds East parallel with the east line of Southeast Quarter, 1121.75 feet; thence South 89 degrees 41 minutes 42 seconds East, 452.03 feet to the east line of the former Traction Company -39- Line, also being the west line of the real estate described in deed to the Firestone Tire & Rubber Company per Instrument #882443 as recorded in the Office of the Recorder of said County; thence South 00 degrees 49 minutes 00 seconds West along the east line of said former Traction Company Line, 1047.62 feet to a point on a curve having a radius of 2904.79 feet, the radius point of which bears North 89 degrees 11 minutes 00 seconds West, thence southerly along said curve an arc length of 77.05 feet to the south line of said Quarter Section and the Point of Beginning, containing 10.65 acres, more or less.