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HomeMy WebLinkAboutCovenants & Restrictions - Recorded\< ~~ ~ ~ RECF~IVED ~'~~'~ ~~a~aus7osb~so j_~, ~~~ 24 2~1U3 ~ DECLARATION OF COVENANTS, Filed far• Record in HAMILTON COUNTY INDIANR QQQS ; J CONDITIONS, AND RESTRICTIONS JENNIFER J HAYD~N OF CHERRY CREEK ESTATES t~8'c5-'c'O03 Rt tj1 ; 39 pm. ~, ~ DEC CDV RES 69 Dt7 b- ~! ~ i ~, .: ~H THIS DECLARATION (hereafter "Declaration"), made this day of °~U~C~ > 2003, by PLATINiJM PROPERTIES, LLC (hereafter "Declarant"); WITNESSETH: WHEREAS, Declarant is the owner of certain real estate, located in Hamilton County, Indiana, which is more particularly described in what is attached hereto and incorporated herein by reference as Exhibit "A" (hereafter "Real Estate"), upon which a residential subdivision lmown as Cherry Creek Estates (hereafter "Development") will be developed; WHEREAS, the real estate described in what is attached hereto and incorporated herein by reference as Exhibit "B" shall hereafter be referred to as the "Additional Real Estate". WHEREAS, Declarant desires to subdivide and develop the Real Estate and Declarant may, in the future, desire to subdivide and develop such portions (or all) of the Additional Real Estate as may be made subject to the terms of this Declaration, as hereinafter provided; WHEREAS, the term "Property" shall hereafter mean and refer to the Real Estate together with such portions of the Additional Real Estate as have from time to 6me been subjected to this Declaration. NOW, THEREIORE, the Declarant hereby declares that all of the Lots (hereafter defined) in the Property, as they aze held and shall be held, conveyed, hypothecated, or encumbered, leased, rented, used, occupied, and improved, are subject to the following restrictions, all of which are declared to be in furtherance of a plan of the improvement and sale of the Property and each Lot situated therein, and are established and agreed upon for the purpose of enhancing and protecting the value, desirability and attractiveness of the Properly as a whole and each of the Lots situated therein. This Declaration shall run with the Property and shall be binding upon the Declarant, its successors and assigns, and upon the parties having or acquiring any interest in the Property or any part or parts thereof subject to these reshictions. c The restrictions shall inure to the benefit of the Declarant and its successors in title to the Property or any t part or parts thereof. As of the date of execution hereof, the Property consists solely of the Real Estate. The Owner of any Lots subject to these restrictions, by (i) acceptance of a deed conveying title thereto, or the execution of a contract for the purchase thereof, whether from Declazant, a Builder, or a subsequent Owner of such Lot or (ii) the active occupancy of any Lot, shall accept such deed, execute such contract and/or actively occupy such Lot subject to each restriction and agreement herein contained. Declarant shall have the right, and hereby reserves on to itself the right, at any time, and from time to time, at anytime prior to the expiration of the Development Period, to add to the Property and subject to this Declaration all or any part of the Additional Real Estate. Any portion of the Additional Real Estate shall be added to the Property, and therefore and thereby becomes a part of the Property and subject in all respects to this declaration and all rights, obligations, and privileges herein, when Declarant places of record in Hamilton County, Indiana an instrument so declaring the same to be part of the Property, which supplementary declaration (hereafter "Supplementary Declaration") may be as part of a subdi~~ision plat for any portion of the Additional Real Estate, or by an amendment or supplement to this Declaration. Such Supplementary Declaration may contain modifications hereto and additional terms, conditions, restrictions, maintenance obligations, and assessments as may he necessary to reflect the different character; if any, of the Additional Real Estate. Upon recording of any such instrument on or before the expiration of the Development Period, the real estate described therein shall, for all purposes, thereafter be deemed a part of the Property and the Owners of any Lots within such real estate shall be deemed for all purposes, to have and be subject to all of the rights, duties, privileges, and obligations of Owners of Lots within the Property. No single exercise of Declarant's right and option to add and expand the Property as to any part or parts of the Additional Real Estate, shall preclude Declarant from thereafter from time to time further expanding and adding to the Property to include other portions of the Additional Real Estate, and such right and option of expansion may be exercised by Declarant from time to time as to all or any portions of the Additional Real Estate so long as such expansion is accomplished on or before the expiration of the Development Period. Such expansion of the Property is entirely at the sole discretion of the Declazant and nothing contained in this Declaration or otherwise shall require Declarant to expand the Property beyond the Real Estate, or to any portions of the Additional Real Estate which Declarant may voluntarily and in its sole discretion from time to time subject to this Declaration. ARTICLE I DEFINITIONS The following are the definitions of the terms as they aze used in this Declaration: Section 1.1 "Association" shall mean the Cherry Creek Estates Homeowners Association, Inc„ a not-for-profit corporation, the membership and power of which are more fully described in Article X of this Declaration. Section 1.2 `Boazd" or `Board of Directors" shall mean the Board of Directors of the Cherry Creek Estates Homeowners Association, Inc. Section 1.3 "Builder" means a person or enfity engaged in and responsible for the original construction of a residence on a Lot. Section 1.4 "City" shall mean the City of Carmel, Hamilton County, Indiana. Section 1.5 "Committee" shall meari the Development Standards and Architectural Control Committee, as more fully described in Article VII of this Declaration. Section 1.6 "Common Area" shall mean those areas (i)designated on current and future Plats as a "Block", "Common Area", "C.A.", (ii) the Pool, and (iii) any other areas designated by the Declarant for the common use and enjoyment of the residents of the Development. Section 1.7 "Development Period" means the period of time commencing with Declarant's acquisition of the Property and ending when Declarant has completed the development and sale of, and no longer owns, any Lot or any other portion of the Property. The Development Period shall recommence each time the Declarant acquires any part (or all) of the Additional Real Estate. Section 1.8 "Drainage Board" means the Hamilton County Drainage Board. Section 1.9 "Lake Area" means any Common Area on which a lake now exists or is later constructed by Declarant and "Lake" means a body of water which now exists or is later constructed by Declarant in a Lake Area. Section 1.10 "Lot" shall mean any parcel of residential real estate designated on a Plat that is recorded in the Office of the Recorder of Hamilton County, Indiana. Section 1.11 "Owner" shall mean 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. Unless specifically indicated to the contrary, the term "Owner" shall include the Declarant and a Builder. Secrion 1.12 "Person" shall mean an individual, firm, corporation, partnership, association, trust or other legal entity or any combination thereof. Section 1.13 "Plat" shall mean the subdivision plats of the Property which are recorded with the Recorder of Hamilton County, Tndiana. Section 1.14 "Pool" shall mean the recreational swimming pool and attached bath house which Declarant, in its sole and absolute discretion, may construct on the Property. Section 1.15 "Residence" shall mean any structure intended exclusively for occupancy by single family together with all appurtenances thereto, including private garage and recreational facilities usual and incidental to the use of a single family residential lot. Section 1.16 "Special Use"shall mean any use defined or"identified in any applicable zoning ordinance as a "Special Use". Section 1.17 "Trail System" means paths or trails so designated by the Board and located in a Common Area. ARTICLE H CHARACTER OF THE DEVELOPMENT Section 2.1. Tn General. No structure shall be erected, placed or permitted to remain upon any Lot except a Residence. All Property located within a plat which has not been designated by numbering shall be used in a manner determined by the Declarant. Lots may be used only for single-family residential purposes and only one Residence not to exceed the maximum height permitted by and measured pursuant to the Zoning Ordinance of the City of Carmel, Tndiana, may be constructed thereon. No portion of-any Lot may be sold or subdivided such that there will be thereby a greater number of Residences in Cherry Creek Estates than the number of Lots depicted on the Plat. Notwithstanding any provision in the applicable zoning ordinance to the contrary, no Lot may be used for any "Special Use" that is not clearly incidental and necessary to single family dwellings. Section 2.2 Other Restrictions. All Property shall be subject to the easements, restrictions, and limitations of record appearing on a Plat and amendments thereto, on recorded easements, and rights-of- way, and also to all governmental zoning authority and regulation affecting the Property, all of which are incorporated herein by reference. ~. ARTICLE III EASEMEN'T'S Section 3.1 Designated Easements. The following are easements designated or to be designated, in the Declarant's sole discretion, upon a plat: (A) 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 utilifies 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 by any entity to which the easement is dedicated and pursuant to Section 5.6 below, shall be built, erected or maintained on said drainage easements, except by the Declarant or its assigns. It shall be the responsibility of the Association and the Owners of the azeas enclosed within such easements to maintain such areas in such conditions that the flow of storm drainage waters on, across and from said azeas 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 arid 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 govemmental agency or department and the requirements of all drainage permits for such Plat issued by those agencies. Failure to so comply shall operate as a waiver and release of the Declarant, the developer, or their engineers and agents from all liability as to damage caused by storm waters or storm drainage. Purlhcr, 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. (B) DesiPttated Mounding Landscaping and Screening and Sign Easements. Any strips of grounds shown or designated on the Plat for landscaping including, but not limited to, landscape easements ,landscape maintenance easements, and/or landscape maintenance access easements are hereby reserved unto Declarant, during the Development Period, and, thereafter, unto the Association, for the purposes of (i) providing signs which either advertise the Property and the availability of Lots or identify the Property or, (ii) installing landscaping, mounding, and screening. Declarant reserves unto itself during the Development Period and thereafer unto the Association, the exclusive and sole right to erect signs and install landscaping, mounding, and screening within these strips of ground. Notwithstanding anything in this Declaration to the contrary, no planting shall be done, and no hedges, walls, fences or other improvements shall be erected or maintained in the area of such easements, except by the Declarant during the Development Period, 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, or other improvements shall be erected between (i) any landscape easement or landscape maintenance easement, and (ii) any perimeter roadway, public highway or right-of--way along the perimeter or boundary of the Property, except by the Declarant during the Development Period and thereafter by the Association. (C) Tree Preservation Easements. 1. Declarant hereby grants, reserves and creates a "Tree Preservation Easement" over the areas, in the rear of certain lots, designated and identified on the Plat as a "Tree Preservation Easement". Except as specifically provided herein, the Tree Preservation Easement shall be restricted from any development, or any use other than as natural fields, forest lands, landscaped areas approved by the Committee and as a sanctuary for wildlife and wild plants and passive recreation. Actions prohibited in the Tree Preservation Easement include, but are not limited to the following: (a) the construction or maintenance on the Tree Preservation Easement of any buildings, structures or other improvements, other than fencing or as otherwise expressly permitted herein; (b) the dumping or other disposal of trash, garbage, or other refuse of any nature whatsoever on the Tree Preservation Easement; (c) the cutting or clearing of timber or trees, earth moving or grading, intentional buming, or filling, except as determined necessary by the Committee to control or prevent imminent hazard, disease or fire; and (d) the construction, maintenance, or erection of any sign or billboard on the Tree Preservation Easement, except for the posting of "No Trespassing" signs. 2. Declarant hereby reserves the right to install utilities and erosion control structures or devices in the Tree Preservation Easement, and to enter onto the Tree Preservation Easement to remove dead, dying or diseased trees, or to prevent imminent hazard or fire. 3. The Association shall enforce the provisions of this Section 3.1.C. Such enforcement rights shall include the right to entet onto the Tree Preservation Easement in order to monitor compliance with and enforce the terms of this Section, including the right to repair any damage to the Tree Preservation Easement. Any Owner violating the provisions of this Section shall reimburse the Association for the value of any trees that have been cut down as determined r by an independent appraisal, together with the cost incurred by the Association (i) to enforce the provisions of this Section, including reasonable attorney fees, and (ii) to repair any damage to the Tree Preservation Easement, including the replacement of any destroyed or damaged trees or vegetation. Such amount shall be a lien on the violating Owner's Lot, which may be foreclosed by the Association in the same manner as delinquent dues provided herein. (D) Easement Work. Notwithstanding any architectural approval under Article VII below, during the course of any maintenance, service, repair or work upon any easement, the Declarant, 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 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 3.1 (A) above and without any obligation of replacement. Section 3.2 General Drainage Utility Sewer and other Development Easements. 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 Residence or portion thereof located upon such Lot or the Owner's use or enjoyment thereof, or (ii) unreasonably restricts the rights of ingress and egress to such Lot. The following rights and easements reserved by Declarant in this Section shall run with the land, and Declarant's right to further alter or grant easements shall automatically terminate and pass to the Association one (1) year after Declarant shall have conveyed the last Lot within the Property. (A) Declarant hereby reserves unto itself during the Development Period, and thereafter unto 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 Declarant 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) Iransmission facilities, security systems and other utility services (including all necessary lines, pipes, wires, cables, ducts, antennae and other equipment and facilities) to serve any Residence. Any Drainage, Utility, Sewer and other Development Easement shall include all areas of the Property outside any Residence, 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 the Declarant and any public or private utility to construct, maintain, repair or remove any necessary facilities. By virtue hereof, Declarant reserves the right to install a lake(s) or pond(s) on any Common Area. The rights hereunder and easements hereby reserved survive the conveyance, by the Declarant to the Association, of any Common Area. 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) Declarant reserves unto itself during the Development Period, and thereafter unto the Association, 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, including dewatering maintenance, 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 Declarant or the Association deem necessary or appropriate, for the purpose of establishing and maintaining proper 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) Declarant reserves unto itself during the Development Period, and thereafter unto the Association, 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, - advertising signs advertising the Property or the Lots therein, 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 after the first conveyance thereof). 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) Declarant reserves unto itself during the Development Period, and thereafter unto the Association, 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 Declarant 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 Hamilton County, Indiana. (E) The title of the Association (as to the Common Area owned by the Association during the Development Period) and of any Owner of any Lot shall be subject to the rights and easements reserved herein. ARTICLE IV ADDITIONAL PROVISIONS RESPECTING OF SANITARY SEWER UTILITY Section 4.1 Sanitary sewer utility easements allow for the constmction, extension, operation, inspection, maintenance, reconstruction, and removal of sanitary sewer facilities and give utility companies the right oCingress/egress. 7 Section 4.2 No trees shall be planted directly over building sewers (laterals). Any landscaping placed within easements or right-of-ways is at risk of being removed, damaged, or destroyed by the applicable utilities without the obligation of replacement. Section 4.3 No mounding, lighfing, fencing, signs, retaining walls, landscaping walls, entrance walls, irrigation lines, or other improvements shall be placed within ten (10) feet of the center of the sanitary sewer infrastructure. Any of these which are placed within easements or right-of--ways is at risk of being removed by the applicable utilities without the obligation of replacement. Section 4.4 All Owners not serviced by gravity sanitary sewer service are responsible for all maintenance, repair and replacement of all grinder(ejector pumps, force mains and gravity laterals from the residence to its connection to the sanitary sewer main. Section 4.5 The discharge of clear water sources, including, but not limited to, foundation drains, sump pumps, and roof drains to the sanitary sewers is prohibited. Section 4.6 Grade changes across sanitary sewer facilities must be approved in writing by the applicable utilities. ARTICLE V RESTRICTIONS CONCERNING SIZE, PLACEMENT, MATERIALS AND MAINTENANCE OF DWELLING HOUSES AND OTHER STRUCTURES Section 5.1 Land Use. Lots may be used only for single-family residential purposes and only one Residence not to exceed the maximum height permitted by and measured pursuant to the Zoning Ordinance of the City of Carmel, Indiana, may be constructed thereon. No portion of any Lot may be sold or subdivided such that there will be thereby a greater number of Residences in Cherry Creek Estates than the number of Lots depicted on the Plat. Notwithstanding any provision in the applicable zoning ordinance to the contrary, no Lot may be used for any "Special Use" that is not clearly incidenta3 and necessary to single family dwellings. Section 5.2 Size of Residences. Except as otherwise provided herein, no Residence may be constructed on any Lot unless such Residence, exclusive of enclosed or open porches, attics, garages, finished or unfinished basements which are more than three feet below the surrounding grade, or other unheated areas which are not intended for living area all year, shall contain the following minimum living areas, as determined by the Committee: Single-story house: One and one-half story house: (the master bedroom is on the first floor): 1,200 s.f. First Floor 800 s.f. Second Floor 1,000 s.f. Total ofboth floors 1,800 s.f. Two story house: First Floor 800 s.f. Second Floor 1,200 s.f. Total ofboth floors 2;000 s.f. Section 5.3 Address Identification. The numbers representing the address of each Residence will be of a uniform appearance and will be displayed in a uniform location and manner, as determined by the Committee. Section 5.4 Exterior Construction. All exterior materials on the house and garage must be a material other than aluminum, except for windows. No aluminum siding or soffits and no asphaltic siding of any kind shall be permitted. All masonry shall be mortared. All chimneys shall be clad on al] four sides with brick or stone unless it protrudes from the interior of the home. No chimney pipes shall be exposed except to the extent required by the manufacturer or local building codes. Roof pitches shall be not less than 6 inches of rise for each 12 inches of horizontal distance from the front to the back of the roof, and 6 inches of rise for each 12 inches of horizontal distance across the front of the house, except where the style of the house dictates otherwise. All shingles shall have at least a 25-year warranty. In addition, the entire first floor exterior for each residence occupying a lot carrying a rear property line of Lots 136 through 144 of Delaware Trace, a subdivision adjacent to the Real Estate as per the plats thereof recorded with the Recorder of Hamilton County, Indiana, as Instrument Nos. 9809801987 and 9909930367 must be clad in brick or stone, unless common building conventions prohibit such use of brick or stone. Section 5.5 Landscapine. All front yards, measured to the front of the house, as extended from side to side, shall be sodded. On comer lots, each street frontage shall be considered to be a front yard. All side and rear yards shall be seeded, or may be sodded with permission of the Committee. A minimum of three (3) trees per lot which shall be conifers of eight feet (8') in height and/or deciduous of at least two inch (2") caliper, must be installed after completion of each new home. The sizes, types, and numbers of other plant materials, including shrubs, grasses, and flowers, shall be approved by the Committee. Also, for al] Lots that share the rear property line of Lots 136 through 144 of Delaware Trace, a subdivision adjacent to the Real Estate per Plats recorded as Instrument Numbers 9809801981 and 9909930367 in the office of the Recorder of Hamilton County, Indiana, three (3) additional trees which shall be conifers of eight feet (8') in height and/or deciduous of at least two inch (2") caliper, must be installed after completion of each new home no closer to the front of the lot than the rear line of the house extended to each side lot line. Section 5.6 Fences. No fencing will be permitted which has the effect of blocking the view through the fence unless required by law. All fencing shall be approved by the Committee and shall be black, wrought-iron appearing fencing. No fencing shall be permitted closer to the front of the lot than the rear line of the house, extended'to each side lot line. On comer lots, each street frontage shall be considered to be a front yard, and no fencing will be permitted closer to the street than 30 feet outside the building setback lines. The maximum height of the fence shall not exceed six (6) feet without the approval of the Committee. , Section 5.7 Li htih All homes will have two dusk to dawn lights located on the sides of the garage doors. Street lights may be installed by Declarant in the utility easements on Lots and in the Common Areas. Street lights shall be operated and maintained by the Association. The Association reserves the right to remove street lights deemed no longer necessary by the Board of Directors. Section 5.8 Temnorarv Structures. No trailer, shack, tent, boat, basement, garage or other outbuilding may be used at any time as a dwelling, temporary or permanent, nor may any structure of a temporary character be used as a dwelling. 9 Section 5.9 Drivewavs. All driveways in Cherry Creek Estates shall be concrete in material. Section 5.10 Storaee Tanks. All above or below ground storage tanks, with the exception of gas storage tanks used solely in connection with gas grills for the purpose of grilling or cooking food, shall be and hereby are prohibited. Section 5.11 Water S stems. Each Owner shall connect to the water main maintained by a private or public water utility to provide water for domestic use on the Lot and shall pay al] connection, availability, or other charges lawfully established with respect to connections thereto. Section 5.12 Drainage. In the event storm water drainage from any Lot or Lots flows across another Lot, provision shall be made by the Owner of such downstream Lot to permit such drainage to confinue, without restriction or reduction, across the downstream Lot and into the natural drainage channel or course, although no specific drainage easement for such flow of water is provided on the Plat. To the extent not maintained by the Drainage Board, "Drainage Easements" reserved as drainage swales shall be maintained by the Owner of the Lot upon which such easements are located such that water from any adjacent Lot shall have adequate drainage along such Swale. Lots within Cherry Creek Estates may be included in a legal drain established by the Drainage Board. In such event, each lot in Cherry Creek Estates will be subject to assessment by the Drainage Board for the costs of maintenance of the portion of the drainage system and the lake control structures included in such legal drain; which assessment will be alien against the Lot. The elevation of a Lot shall not be changed so as to materially affect the surface elevation or grade of surrounding Lots. Perimeter foundation drains and sump pump drains shall be connected whenever feasible into a subsurface drainage tile. Down spouts and drains shall be designed to disperse runoff for overland flow to street or Swale collection systems. Each Owner shall maintain the subsurface drains and tiles located on his Lot and shall be liable for the cost of all repairs thereto or replacements thereof. Section 5.13 Sheds. Outbuildings and sheds are specifically prohibited. Section 5.14 Maintenance of Lots (a) Vehicle Parking. No camper, motor home, truck, trailer, boat or disabled vehicle may be parked or stored overnight or longer on any Lot in open public view. (b) Signs. Except for such signs as Declarant may in its absolute discretion display in connection with the identification of development of Cherry Creek Estates and the sale of Lots therein, no sign of any kind shall be displayed to the public view of any Lot except that one (1) sign of not more than four (4) square feet may be displayed at any time for the purpose of advertising the property for sale, or may be displayed by a builder to advertise the property during construction and sale. (c) Fencin .This subsection is applicable to all Lots except those Lots which are used for a sales office or model home by the Declarant or a Builder. No fence, wall, hedge, or shrub planting higher than eighteen (18) inches shall be permitted between the front property line and the front building set back line except where such planting is part of Residence landscaping approved by the Architectural Review Committee and the prime root thereof is within six (6) feet of the Residence. Corner Lots shall be deemed to have ,... two (2) front property lines. Trees shall not be deemed "shrubs" unless planted in such a l0 manner as to constitute a "hedge". All fencing shall be black, wrought-iron appearing fencing, unless approved by the Committee. All fencing on a Lot shall be uniform in height, style, and color and substantially similar in material. No fence shall be erected or maintained on or within any Landscaping Easement except such as may be installed by Declarant and subsequently replaced by the Association in such manner as to preserve the uniformity of such fence. No fence maybe erected on a Lot without prior approval of the Committee, which shall approve or disapprove the location of all fences; provided, however, that all fencing erected on a Lot must be erected either (i) within six (6) inches of the property line of such Lot, or (ii) more than ten (10) feet from the property line of such Lot. Owners of Lots adjoining Lots on which a fence is erected within six (6) inches of the property line shall have the right to connect a fence to the fence on the adjoining Lot if the new fence satisfies all of the criteria expressed herein and is approved by the Committee. The Committee may establish further restrictions with respect to fences, including limitations on (or prohibition of) the installation of fences in the rear yard of a Lot abutting a Lake and design standards for fences. All fences shall be kept in good repair. No fence, wall, hedge, or shrub planting, or tree foliage which obstructs sight lines at elevations between two (2) and six (6) feet above the street shall be placed or permitted to remain on any comer Lot within the triangular area formed by the Lot lines at the streets and a line connecting points 25 feet from the intersection of said street Lot lines; and, the same rule shall apply to the intersection of a driveway with a street, in which case the edge of the driveway pavement shall be substituted for one of the street Lot lines. (d) Nuisances. No noxious or offensive activity shall be carried on upon any Lot nor shall anything be done thereon which may be, or may become, an annoyance or nuisance to the neighborhood. Violation of any ordinance governing noise, building or lot maintenance, or any other public nuisance shall be deemed to be a nuisance creating rights in every affected Owner, the Declarant, and/or the Association, as the case may be, to enforce the provisions hereof against the offending Owner. Barking dogs shall constitute a nuisance., In the event of successful enforcement by an Owner, the Declarant, or an Owner of the provisions thereof, the offending Owner shall be liable to the prevailing party for attorneys' fees, court costs, and all other costs and expenses of litigation and collection in connection therewith. (e) Garbage and Refuse Disposal. No Lot shall be used or maintained as a dumping ground for trash. Rubbish, garbage or other waste shall be kept in sanitary containers out of public view except not more than 24 hours prior to its removal thereof, when it may be placed at the curb of the Lot. All equipment for storage or disposal of such materials shall be kept clean and sanitary. (f) Animals. No animals, livestock or poultry of any kind shall be raised, bred or kept on any Lot, except that dogs, cats or other household pets may be kept provided that they are not kept, bred, or maintained for any commercial purpose. The owners of such permitted pets shall confine them to their respective Lots such that they will not be a nuisance. Owners of dogs shall so control or confine them so as to avoid barking which will annoy or disturb adjoining Owners. When such permitted pets are off the Owner's Lot, the pet must be on a leash. Unless permitted by the Board of Directors of the Association, no Owner shall maintain more than two (2) of the same type (dog, cat, bird) of pet nor more than four (4) total pets; pro~~ded, however, that fish which are located in indoor 11 • • aquariums and which pose no risk to the public health shall not be considered pets for the purpose of this restriction. No dangerous or potentially dangerous pets, such as exotic animals (lazge wild cats, wolves, alligators, snakes which are poisonous or longer than two feet, poisonous spiders, etc.) shall be permitted to exist in a Residence or on a Lot without the unanimous consent of the Architectural Review Committee and the Board of Directors; provided, however, that the decision of the Board of Directors to permit such animal or animals may be overturned by a majority vote of the Members at any meeting. The Owner of a permitted pet must promptly pick up and properly dispose of any pet feces not on the Owner's Lot. (g) Outside Bumine. No trash, ]eaves, or other materials shall be burned upon a Lot unless the smoke therefrom would not blow upon any other Lot. Owners shall use appropriate incinerators and shall at all times be in compliance with all applicable legal requirements for outside burning. (h) Antennas and Receivers. No antenna, satellite dish, or other device for the transmission or reception of radio, television, or satellite signals or any other form of electromagnetic radiation shall be erected, used or maintained outdoors and above ground, whether attached to a building or otherwise, on any part of the Property, including Lots, without the written approval of the Architectural Review Committee, which approval shall not be unreasonably withheld; provided, however, that any such device may be installed and maintained on any Lot without the necessity of such written approval if: (a) it is not visible from the neighboring Lots, streets or Common Area; or (b) the Owner, prior to installation, has received the written consent of the Owners of all Lots who would have views of the device from their Lots; or (c) the device is virtually indistinguishable from structures, devices, or improvements, such as heat pumps, air-conditioning units, barbecue grills, patio furniture, and gazden equipment, which are not prohibited by these covenants or Bylaws, or (d) it is a satellite dish 1 meter or less in diameter and not affixed to the roof of a residence; or (e) if prohibition of the installation, use, and maintenance of such device is specifically preempted and superseded by applicable governmental authority. (i) Exterior Liehts. Except on Lots on which there is maintained a sales office or model home by the Declarant or a Builder, no exterior lights shall be erected or maintained between the building line and rear lot line so as to shine or reflect directly upon another Lot. (j) Electric Bue Killers. Electric Bug Killers, "zappers", and other similar devices shall not be installed at a location or locations which result in the operation thereof becoming a nuisance or annoyance to other Owners, and shall be operated only when outside activities require the use thereof and not continuously. (k) Tennis Courts. No tennis court shall be installed or maintained on any Lot without prior written approval from the Declarant or the Committee. (I) Swimming Pools. No swimming pool or equipment or building related thereto shall be constructed without-the prior approval of the Committee. 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 Board imposes such requirement, then 12 a mechanical pool cover of a type and manufacture approved by the Architectural Review Committee shall be installed by the Owner in compliance with all applicable governmental requirements and all requirements established by the Architectural Review Committee. (m) Vacant Lots. It shall be the duty and obligation of the Owner of a vacant Lot to maintain such Lot and mow the lawn thereof. Declarant and the Association shall have the right, but not the duty, to enter upon each vacant Lot and to maintain the appearance thereof by cutting weeds, mowing grass, trimming trees, removing debris, installing erosion control devices, and performing any other act reasonable under the circumstances. The Owner shall be responsible for payment of all such expenses upon demand and the Declarant or the Association, as the case maybe, shall have a lien on such Lot for the payment of such expenses, together with attorneys' fees and all other costs and expenses of litigation and collection which may be incurred in connection therewith. All Owners are prohibited from dumping any and all grass clippings, trash and debris on any vacant Lot. Section 5.15 Association's Right to Perform Certain Maintenance. )n the event that the Owner of any Lot shall fail to maintain his or her Lot and any improvements situated thereon in accordance with the provisions of this Declaration, the Association shall have the right, but not the obligation, by and through its agents or employees or contractors, to enter upon said Lot and repair, mow, clean or perform such other acts as may be reasonably necessary to make such Lot and improvements situated thereon, if any, conform to the requirements of these restrictions. The cost incurred by the Association shall be assessed to the Owner. The Owner shall reimburse the Association within thirty (30) days of the date on which the Owner is invoiced by the Association. The Association shall have the right to collect any outstanding maintenance assessments in the manner described in Article XI. Neither the Association nor any of its agents, employees, or contractors shall be liable for any damage that may result from any maintenance work performed hereunder. Section 5.16 Awnings. Except on Lots on which there is maintained a sales office or model home by the Declarant or a Builder, or as approved by the Committee, no metal, wood, fabric, fiberglass or similar type material awnings or patio covers will be permitted anywhere on the Property. Section 5.17 Diligence in Constntcfion. Subject to inclement weather, every Residence shall be completed within twelve (12) months after the beginning of such construction or placement. No improvement which has partially or totally been destroyed by Fire or otherwise shall,be allowed to remain in such state for more than three (3) months from the fime of such destruction or damage or, if approval of the applicable casualty insurance is pending, then within three (3) months after such approval is forthcoming. Section 5.18 HVAC Units. No heat pumps, air conditioning units or gas meters will be installed in the front of the Residence. Section 5.19 Lake and Lake Area(sl. Except as otherwise provided, no individual using 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 Declarant, the Association, their 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 13 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. The installation on the Property of any Lake or Lake Area shall be within the sole discretion of the Declarant, and under no circumstances shall the Declarant be required or obligated to install any Lake or Lake Area. Only the Declarant and 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 5.20 Mailboxes. All mailboxes and posts must be approved by the Committee and, within each Section of the Development, shall be standard as to size, location, post, design, height, material, composition and colors. The builder upon the initial Lot closing to the homeowner shall install the initial mailbox for each Lot, which meets the above criteria. The Owner agrees to maintain and paint said mailbox and post in conformance with all other mailboxes. Section 5.21 Maintenance of Lots and Improvements. Each Owner shall at all times maintain the Lot and any improvements situated thereon in such a manner as to prevent the lot or improvements from becoming unsightly and, specifically, such Owner shall: (a) 'Mow the Lot at such times as may be reasonably required in order to prevent the unsightly growth of vegetation and noxious weeds, and maintained at a height no greater than five inches; (b) Remove all debris or rubbish from the Lot; (c) Prevent the existence of any other condition that tends to detract from or diminish the aesthetic appearance of the Property; (d) Cut down and remove dead trees from the Lot; and, (e) Within sixty (60) days following completion of a Residence, the Owner shall landscape the lot in accordance with the provisions set forth in this Declaration, weather permitting. Section 5.22 Miscellaneous. No clotheslines may be erected on any Lot. Section 5.23 Outbuildings and Animal Quarters. Any and al] forms of outbuildings, including but not limited to, sheds, storage ,sheds, animal quarters, and play houses, which are not directly connected to the main house on any Lot are prohibited, unless the same are necessary or incident to the Declarants, Builder's or Association's business or activities upon the Property. Animal quarters or kennels which are connected to the Residence must be approved by the Committee. Section 5.24 Play Equipment. Children's play equipment such as sandboxes, temporary swimming pools having a depth of eighteen (18) inches or less, swing and slide sets, and trampolines shall not require approval by the Committee, provided that (i) such equipment is not more than eight (8) feet high (to the highest point of the structure) and properly painted or stained, and maintained by the Owner in good repaii, (ii) such equipment is located in the rear yard of the Lot between the para]]el lines defined by extending the side lines of the residence into the rear yard of the Lot, and (iii) such swing and slide sets are constructed of wood. Metal swing and slide sets are prohibited. Equipment higher than 14 eight (8) feet shall require approval of the design, location, color, material and use by the Committee, and aluminum or metal play equipment is prohibited. Section 5.25 Plumbine. All plumbing vent stacks are to be located on the rear of the Residence. Section 5.26 Sidewalks. Each Residence shall have a continuous 4-foot wide by a minimum of four (4) inches thick concrete sidewalk adjacent to all interior dedicated street frontage. Sidewalks shall be installed by the Builder and included in the purchase price of the Residence. If an approved asphalt bike/walking path is approved on the Property in place of the sidewalk, no additional concrete sidewalk will be required. Section 5.27 Subsurface Drains and Sumn Pumn Discharees Subsurface drains have been provided in certain areas within drainage easements as additional storm and ground water drainage sources and are part of the public storm drainage system. Subsurface drain laterals have been provided on specific Lots, and the Builder on such Lots shall connect all sump pump discharge lines to such laterals. All maintenance and repair of al] sump pump discharge lines and subsurface drain laterals shall be the responsibility of each Lot Owner in accordance with the following: (A) The limits of Owner responsibility include all sump pump lines and subsurface drain laterals between the connection at the sump pump within the home and the connection with the publicly maintained storm sewer or subsurface drain within the drainage easement. (B) hz cases where subsurface drain laterals are connected along a common property line before connecting to the storm sewer, maintenance and repair of the common lateral will be shared equally by the adjacent Owners unless an individual Owner caused the lateral to be damaged, changed or altered. (C) Any Owner or Builder damaging, changing, or altering-these subsurface drains and/or common subsurface drain laterals will be held responsible for such action and will be given ten (10) days notice, by registered mail, to repair said damage, after which rime, if no action is taken, the appropriate jurisdictional agency, Declarant or the Association will cause said repairs to be accomplished and the invoice for such repairs will be sent to the responsible Owner(s) and/or Builder(s) for immediate payment. If immediate payment is not received, the Declarant and/or the Association shall have all the rights and remedies to collect any outstanding amounts as outlined hereafter in Article XI of this Declaration. (D) Tn no case will maintenance and repair of sump pump discharge lines and subsurface drain laterals be the responsibility of the City. Section 5.28 Swimming Pools and Hot Tubs. Only permanent, in-ground pools with professional construction, approved by the Committee, shall be permitted upon a Lot. All submittals to the Committee shall include landscape plans. All backyard pools should be oriented to minimize the potential effect on neighboring properties. All fencing shall conform to county or municipal regulations and shall be' of harmonious design and subject to Committee approvals. Hot Tubs must also be approved by the Committee. Section 5.29 Tennis Courts Racquetball Courts Paddlebal] Courts, etc. Tennis courts, racquetball courts, paddle ball courts, basketball courts, squash courts, and other recreational facilities or sporting facilities will not be permitted without approval from the Committee. All submittals to the 15 Committee shall include landscape plans. Basketball goals may be installed on a lot adjacent to driveway without Committee approval provided that they have white fiberglass or translucent fiberglass or glass backboards. Independent basketball courts may not be constructed on a Lot without written Committee approval. No basketball goal or backboard shall be permitted to hang from or be affixed to the Residence or garage. Lighted courts of any kind are prohibited. Temporary or portable basketball courts will not be permitted to be located on any public right-of--way including all streets, cul-de-sacs and sidewalks. Section 5.30 Vents. All metal and PVC roof or range vents will be painted to blend with roof color. Section 5.31 Windows-Doors. If storm doors are installed, they must be painted to match exterior of the Residence. No unfinished aluminum doors or windows will be allowed. Section 5.32 Street Siens. Decorative street signs that do not conform to City of Carmel, Indiana, standards may be installed by Declarant in Cherry Creek Estates. Such decorative street signs shall be maintained by the Association, and shall be repaired or replaced by the Association if damaged in accordance with applicable rules and regulations of the City of Carmel, Indiana. The Association assumes al] liability in the installation, maintenance and repair of the decorative street signs and agrees to hold the City of Carmel, Indiana,.harmless related thereto. ARTICLE VI GENERAL. PROHIBITIONS Section 6.1 Animals. No animals shall be kept or maintained on any Lot except the usual household pets and, in such case, such household pets shall be kept reasonably confined so as not to become a nuisance. Excessive barking of a dog(s) or vicious animal(s) shall constitute a nuisance and maybe ordered removed from the Property by the Association. Section 6.2 Exterior Antenna/Dishes. No television, radio or other antennas, nor any obtrusive object may be erected by any Lot Owner on the exterior of a Residence or on a Lot. Satellite dishes of 1 meter (3.281 feet) in diameter or smaller may be permitted following review of the installation location by the Committee, but in no event will the installation location be permitted to be higher than the roof ridge. Whenever possible, satellite dishes should not be visible from the street. Section 6.3 Fuel Tanks. All above or below ground storage tanks, with the exception of gas storage tanks used solely in connection with gas grills for the purpose of grilling or cooking food, shall be and hereby are prohibited. Section 6.4 Garbage and Other Refuse. No Lot Owner in the Development shall burn or permit the burning out-of--doors of garbage or other refuse, nor shall any such Owner accumulate or permit the accumulation out-of--doors of such refuse, including compost on his or her Lot. Section 6.5 Home Occupations. No Lot or Lots shall be used by an Owner, other than a Builder or Declarant, for any purpose other than as asingle-family residence, except that a home occupation, which satisfies the following definition as well as all requirements of the applicable zoning ordinance, may be permitted: any use conducted entirely within the Residence and participated in solely by a member of the immediate family residing in said Residence, which use is clearly incidental and secondary to the use of the Residence for dwelling purposes and does not change the character thereof and in 16 connection with which there is: a) no sign or display that will indicate from the exterior that the Residence is being utilized in whole or in part for any purpose other than that of a dwelling; b) no commodity sold upon the premises; c) no person is employed other than a member of the immediate family residing in the Residence; and d) no manufacture or assembly operations are conducted. Provided however, that in no event shall the following or similar activities be conducted or considered to be a permitted Home Occupation: child day care, barber shop, styling salon, animal hospital, or any form of animal care or treatment such as dog trimming, or any other similar activities. The foregoing notwithstanding, the Declarant and Builders shall be permitted to operate sales trailers, model homes, and sales offices. Section 6.6 Nuisances. No noxious or offensive activities shall be permitted on any Lot, nor shall anything be done on any of said Lots that may be or may become an annoyance or nuisance to the neighborhood. Barking dogs shall constitute a nuisance. Section 6.7 Open Drainage Ditches and Swales. The following shall apply to open ditches and Swales: (A) Drainage Swales (ditches) along dedicated roadways and within the right-of--way, or on dedicated drainage easements, are not to be altered, dug out, filled in, tiled, or otherwise changed, without the written permission of the appropriate jurisdictional agency and the Declarant. Properly Owners must maintain these Swales as grassways or other non-eroding surfaces. Any damage to Swales or drainage structures must be repaired or replaced by the Lot Owner. (B) Any Owner or Builder altering, changing, or damaging these drainage Swales or ditches will be held responsible for such action and will be given ten (10) days notice, by registered mail, to repair said damage, after which time, if no action is taken, the appropriate jurisdictional agency, Declarant or the Association will cause said repairs to be accomplished and the invoice for such repairs will be sent to the responsible Owners for immediate payment. If immediate payment is not received by the Association, the Association shall have all the rights and remedies to collect any outstanding amounts as outlined hereafter in Article XI of this Declaration. Section 6.8 Roofing Materials. The roofing materials on al] Residences within each Section of the Development shall be simi]az in color, and shall be of a quality, style and composition acceptable to the Declarant during the Development Period and, thereafter, the Committee. Section 6.9 Siens. No. signs or advertisements shall be displayed or placed on any Lot or other structures in the Property, except Residence or Lot sales signs and directional sales signs, except with the approval of the Committee. Section 6.10 Solar Panels. No solar panels shall be permitted on any Residence. Section 6.11 Temporary Structures. No temporary house, trailer, garage or other outbuilding shall be placed or erected on any Lot, except by Declarant or a Builder. Section -6.12 Utility Services. Easements for installation and maintenance of utilities and drainage facilities are reserved as shown on the recorded plat. 17 Section 6.13 Vehicles Parkine. No trucks one (1) ton or larger in size, campers, trailer, motorhomes, boats, snowmobiles, jet ski or similar vehicles shall be parked on any street in the Property. Any recreational vehicle or trailer, camper, snowmobile, jet ski, or boat shall not be permitted to remain on any driveway or Lot except within a closed garage and shall not be regularly parked upon unpaved areas. There shall be no outside storage of commercial trucks, trailers, boats, junk cars, or fuel tanks. Section 6.14 Visual Obstructions. No fence, wall, gate, hedge, tree or shrub planting which obstructs sight lines and elevations between three (3) and twelve (12) feet above the street shall be placed or permitted to remain on any comer Lot within the triangular area formed by the street right-of--way lines and line connecting points twenty-five (25) feet from the intersection of said street lines or in the case of a rounded property comer, from the intersection of the street right-of--way lines extended. The same sight- line 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. Section 6.15 Wells and Septic Tanks. Water wells shall not be drilled on any of the Lots except as required to irrigate common areas, nor shall any septic tanks be installed on any of the Lots. Section 6.16 Occunancv or Residential Use of Partially Comnleted Residence Prohibited. No Residence constructed on any Lot shall be occupied or used for residential purposes or human habitation until a certificate of occupancy has been issued. Section 6.17 Streets Sidewalks and Street Landscapinu. (a) Maintenance. Declarant shall maintain all streets and curbs in good condition satisfactory for the purpose for which they were constructed until they have been accepted by the public. (b) Landsca in .All landscaping within the street rights-of--way is subject to the approval of the appropriate governmental authority. Each Owner shall cut all grass and trim all other landscaping in the rights-of--way adjoining his Lot lines and shall maintain all sidewalks in the rights-of--way nearest his Lot lines. Each Owner shall immediately replace any street trees and lighting required by this Declaration, the Plat, or any other document controlling maintenance of Lots. (c) Street Lights and Decorative Street Siuns. All street lights and decorative street signs located within the right-of--way of any street shall be maintained by the Association. Section 6.18 Driveways. All driveways in Cherry Creek Estates shall be concrete in material. Section 6.19 Fireplace Chase. All fireplace chases and flues shall be of masonry veneer or material which is equal to or better than masonry veneer in quality and appearance. No fireplace chase shall be constructed of stucco board, wood siding, or similar materials unless protruding from the interior of the home. Section 6.20 Construction and Landscapinu Time Reguirements• Divestiture; Penalties. All construction upon, landscaping of, and other improvements to a Lot shall be completed strictly in accordance with a lot development plan approved by the Committee. All landscaping specified on the landscaping.plan approved by the Committee shall be installed on the Lot strictly in accordance with such 18 o ~ approved plan within sixty (60) days following substantial completion of the Residen~e unless delayed due to adverse weather conditions, but in no event shall it be installed later than June 30 of the year. Section 6.21 Mailboxes. All mailboxes installed upon Lots shall be uniform in type and color. Such mailboxes shall be installed upon posts approved as to type, size, and location by the Declarant and the United States Post Office. Replacement of mailboxes shall be subject to the prior written approval of the Committee and shall be as nearly as reasonably possible identical to the original mailboxes and posts required by Declarant. Section 6.22 Seutic S stems.. No septic tank, absorption field, or any other on-site sewage disposal system (other than a lateral main connected to a sanitary sewage collection system operated by the City of Carmel, Indiana, or a successor public agency or public or private utility) shall be installed or maintained on any Lot. ARTICLE VII ARCHITECTI.lRAL CONTROLS Section 7.1 Annrovals. ,Approvals, determination, permissions, or consents required herein shall be deemed given only if they are given in writing and signed, with respect to the Declarant or the Association, by an officer thereof, and with respect to the Committee, by one (1) member thereof. Section 7.2 Committee: Develoument Standazds and Committee. A Development Standards Committee, composed of at least three (3) members, shall exist and shall be appointed by the Declarant. Such members shall be subject to removal by the Declazant at any fime, with or without cause. Any vacancies from time to time shall be filled by appointment of the Declarant. The Declarant may, at its sole option, at any time hereafter, relinquish far a period of time to the Association the power to appoint and remove one or more members of the Committee. Section 7.3 Continuation of Committee. When the Declarant provides written notification to the Association of discontinuance of this Committee, then the Directors of the Association, or their designees, shall continue the actions of the Committee with like powers and duties. Section 7.4 Duties of Committee. The Committee shall approve or disapprove proposed improvements within thirty (30) days after all required information shall have been submitted to it The Committee for its permanent files shall retain one copy of submitted material. All notifications to applicants shall be in writing, and, in the event that such notification is one of disapproval, the requesting applicant may re-apply with changes. If however, approval has not been received by applicant in writing within thirty (30) days, then said request shall be considered DENIED. Section 7.5 Exercise of Discretion. Declarant intends that the members of the Committee exercise discretion ih 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 Committee and in any action initiated to enforce this Declaration in which an abuse of discretion by the Committee is raised as defense, abuse of discretion may be established only if a reasonable person, weighing the evidence and drawing all inferences in favor of the Committee, could only conclude that such determination constihrted an abuse of discretion. 19 o • Section 7.6 Insnection. The Corrunittee may inspect work being performed without the Owner's permission to assure compliance with these restrictions and applicable regulations. Section 7.7 Liability of Committee Declarant Develoner. Neither the Committee nor any agent thereof, nor the Declarant, or Association shall be liable in any way for any 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 Committee, Association or Declarant 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 Committee, Associaton and/or Declarant 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 7.8 Common Areas Entrances Street Siens and Landscape Easements. None of the following shall be installed or constructed without prior written approval thereof by the Committee: (i) any and all landscaping, fences, structures, lighting, walking trails, sidewalks, or other improvements located in any Common Area, landscape maintenance access easement, and/or sign landscape easement, (ii) any entrance monument or signage identifying the Development or any section thereof and/or (iii) street signage. Section 7.9 Lot Improvements. No dwelling, building structure, fence, deck, driveway, swimming pool, rear yard tennis or basketball courts, significant landscaping, or improvement of any type or kind (inchiding any landscaping within ten feet of any Lot line or easement) shall be constructed or placed on any Lot without the prior approval of the Committee. Such approval shall be obtained only after the Owner of the Lot requesting authorization from the Committee has made written application to the Committee at least thirty (30) days prior to the proposed construction. Such written application shall be in the manner and form prescribed from time to time by the Committee, and shall by accompanied by two (2) complete sets of plans and specifications for any such proposed constmction or improvement. Such plans shall include plot plans showing (i} the location of the improvements existing upon the Lot and the location of the improvement proposed to be constructed or placed upon the Lot, each properly and clearly designated and (ii) all easements, set backs, and rights-of--way and (iii) any landscape plans required by the Committee. Such plans and specifications shall further set forth the color and composition of all exterior materials proposed to be used and any proposed landscaping, together with any other materials, photographs, or information, which the Committee may require. All building plans and drawings required to be submitted to the Committee shall be drawn to a scale of %a" = 1' and all plot plans shall be drawn by a professional to a scale of 1" = 30', or to such other scale as the Committee shall deem appropriate. It is also recommended that a certified survey be prepared to insure that a resident is not encroaching on an adjacent homeowner or in a Common Area. If Owner has encroached on an adjacent Owners property or in a common area, the encroaching Owner will, at his or her own expense, move any fence or other improvement(s) so as to eliminate the encroachment. Owner shall be responsible for verifying location of all Lot lines, easements, setback lines, and utilities. Notwithstanding anything to the contrary in the foregoing, upon receipt of any written application which is in form and content acceptable to the Committee in the Committee's sole and absolute discretion, the Committee may pre- approve aBuilder's plans and specifications for the original construction of a Residence and, in the event of such pre-approval, the Builder shall then be authorized to construct the pre-approved Residence on different Lots without further approvals from the Committee. Owner shall be responsible for locating and protecting all utilities prior to and during construction of any improvements. Owner shall be responsible for any and aII permits, and comply with all governmental ordinances, rules and regulations. 20 o • No fence or screen of any kind will be permitted if its installation will obstmct necessary site lines for vehiculaz traffic. Undue obstruction of view of other amenities from adjoining properties shall be considered by the Committee when reviewing applications for approval. Section 7.10 Power of Disapproval. The Committee may refuse to grant permission to construct, place or make the requested improvement with or without cause. Common grounds for denial include, but are not limited to, a lack or absence of the following: (A) The plans, specifications, drawings or other material submitted must themselves be adequate and complete, show the proposed improvement, and not be in violation of this Declaration; and (B) The design or color scheme of a proposed improvement must be in harmony with the general surroundings of the Lot or with adjacent buildings or structures. Section 7.11 Power to Grant Variances. The Committee may allow reasonable variances or adjustments of this Declaration where literal application would result in unnecessary hardship, but any such variance or adjustment shall be granted in conformity with the genera] intent and purposes of this Declaration, no variance or adjustment shall be granted which is materially detrimental or injurious to other Lots in the Development, and any such variance granted shall not be considered as precedent setting. Section 7.12 Statement of Purposes and Powers. Subject to this Declaration and the restrictions contained herein, the Committee shall regulate the external -design, appearance, use, location and maintenance of ]ands and improvements thereon in such a manner as to preserve and enhance values and maintain a harmonious relationship among structures and the natural vegetation and topography, and in keeping with the intent of the Declarant. ARTICLE VIII CONTIGUOUS LOTS Section 8.1 Rules Govemin¢ Building on Several Contiguous Lots Havine One Owner. Whenever two or more contiguous Lots shall be owned by the same person, and such Owner shall desire to use two or more of said Lots as a site for asingle-dwelling house, such Owner must apply in writing to the Committee for permission to so use said Lots. If permission for such a use shall be granted, the Lots constituting the site for such single-dwelling house shall be treated as a single Lot for the purpose of applying this Declaration to said Lots, so long as the Lots remain improved with one single-dwelling house. In addition, the Owner must obtain from the City of Carmel .all requisite and necessary permits and approvals. ARTICLE IX USE AND OVVNERSffiP OF COMMON AREA Section 9.1 Ownershiu. A license upon such terms, conditions, rules and regulations as the Declarant, and successor, assigns or licensees of the Declarant, shall from time to time grant, for the use and enjoyment of the Common Area, is granted to the persons who are from time to time members of the Association; provided, however, that no residential development shall occur in the Common Area. Every 21 Owner shall have a nonexclusive right and easement of enjoyment in common with all other Owners, in and to the Common Areas which nonexclusive right and easement of enjoyment shall be appurtenant to and pass with the title to every Lot. The Common Areas shall be conveyed by quitclaim deed to the Association. Such conveyance shall be deemed to have been accepted by the Association and those persons who shall from time to time be members thereof upon the recording of a deed or deeds conveying such Common Area to the Association. Section 9.2 Use. Common Area shall be used for such purposes as deemed appropriate by the Declarant until the end of the Development Period. Following the end the Development Period, the Common Area shall be used for such purposes as deemed appropriate by the Association. Any Common Area depicted on the recorded plats of the Development or designated by the Declarant as a Common Area shall remain for the exclusive use of the Owner(s), and their family members, guests, tenants, or contract purchaser who reside on the Lot(s). Neither the Declarant's execution or recording of the plats nor the doing of any other act by the Declarant is, or is intended to be, or shall be construed as, a dedicafion to the public of the Common Area. ARTICLE X CHERRY CREEK ESTATES HOMEOWNERS ASSOCIATION, INC. Section 10.1 Association Duties. The dufies bf the Association shall include the following: (i) the promotion of the recreation, health, safety, and welfaze of the residents in the property, (ii) the maintenance and repair of the Common Area including, but not limited to, any and all lighting, landscaping, pools, amenity areas, the Trail System, and sidewalks located thereon, (iii) the maintenance and repair of any and all entrance monuments and signage, and the landscaping sun•ounding such entrances monuments and signage, (iv) maintenance and repair of all street signage, street lighting, and al] improvements and landscaping existing in any landscape maintenance access easement and/or any sign landscape easement, (v) the performance of any other obligations and duties of the Association specified herein. Section 10.2 Board of Directors. The Owners shall elect a Board of Directors of the Association as prescribed by the Association's Articles and Bylaws. The Board of Directors shall manage the affairs of the Association. Directors need not be members of the Association. Section 10.3 Classes of Membershiu and Votine Riehts. The Association shall have the following two classes of voting membership: (A) Class A. Class A members shall be all Owners with the exception of the Declarant. Class A 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. (B) Class B. The Class B member shall be the Declarant. The Declarant shall be entitled to five (5) votes for each Lot owned. For purposes of this calculation, it shall be assumed that Declarant owns -all Lots, which number shall be reduced as Lots are conveyed by the Declarant to an Owner. The Class B membership shall cease and be converted to Class A membership on the happening of either of the following events, whichever occurs earlier (hereafter "Effective Date"): 22 o (i) December 31, 2010; or (ii) When the total number of votes outstanding in4he Class A Membership is equal to the total number of votes outstanding in the Class B Membership; provided, however, that the Class B Membership shall recommence in the event that the Declarant records a plat of part of or all of the Additional Real Estate and, by virtue thereof, total number of votes outstanding in the Class A Membership is no longer equal to the total number of votes outstanding in the Class B Membership. Section 10.4 Membership. Initially, the person(s) who serve as incorporators) of the Association shall be the member(s) (the "Initial Member(s)"). The Initial Member(s) shall remain member(s) of the Association until the Association Articles of Incorporation are accepted by the Indiana Secretary of State, at which time the Initial Member(s) shall cease to be member(s) unless they also qualify as Class A or Class B members. Every Owner of a Lot which is subject to assessment shall be a member of the Association. Apart from the Initial Member(s), a membership in the Association shall be appurtenant to and may not be separated from ownership of any Lot. Section 10.5 Professional Management. No contract or agreement for professional management of the Association, nor any other contract between Declarant and the Association, shall be for a term in excess of three (3) years. Any such agreement or cottract shall provide for termination by either party with or without cause and without payment of any termination fee upon written notice of ninety (90) days or less. Section 10.6 Limitations on Rights of the Associaton. As long as there is a Class B Member, the Association may not use' its resources, nor take a public position in opposition to future phases of Cherry Creek Estates proposed by the Declarant or changes to current phases of Cherry Creek Estates proposed by the Declarant. .Nothing in this paragraph shall be construed to limit the rights of the members acting as individuals or in affiliation with other members or groups as long as they do not employ the resources of the Association or identify themselves as acting in the name, or on the behalf of the Association. ARTICLE XI ASSESSMENTS Section 11.1 Creation of Lien and Persona] Obligation of Assessments. Each Owner of any Lot, except the Declarant and any Builder, by acceptance of a deed therefore, whether or not it shall be so expressed in such deed, is deemed to covenant and agree to pay to the Association the following: (a) Annual Assessments (hereafter defined); (b) One-Time Assessment (hereafter defined); (c) Specia] Assessments (hereafter defined) for costs of enforcement of the Declaration, capital improvements and operating .deficits, copies of Association documents if requested by a member, and such assessments to be established and collected as hereinafter provided or established by the Board; and (d) Violation Assessments (hereafter defined) levied for a violation of this Declaration. 23 A • Section 11.2 Annua] Budee_t. By majority vote of the Board of Directors, the Board of Directors shall adopt an annual budget for the subsequent fiscal year, which shall provide for the allocation of expenses in such a manner that the obligations imposed by the Declaration and all Supplemental Declarations can effectively be met. t 24 o • Section 11.3 Annual Assessment. (A) Amount. The Annual Assessment provided for herein shall be per calendar year and shall commence for each Lot on the date of closing of the sale of a Lot to an Owner other than Declarant or a Builder. The Annual Assessment, commencing during the calendar year in which the first Lot is conveyed to an Owner other than the Declarant or a builder, shall be $650.00 per Lot per year. The Annual Assessment for the calendar year shall be pro-rated to year-end. The Board of Directors shall fix any increase in the amount of the Annual Assessment at least thirty (30) days in advance of the effective date of such increase. The initial due date for annual assessments shall be January 1~`, and such assessment shall be subject to collection and late charges beginning on January 31st. (B) Purpose of Assessments. The annual assessment levied by the Association shall be used in the reasonable discretion of the Board of Directors to fulfill the duties and obligations of the Association specified in this Declaration. (C) Method of Assessment. By a vote of a majority of the Board of Directors, the Board of Directors shall, on the basis specified in Section 11.7 below, fix the Annual Assessment for each assessment year at an amount sufficient to meet the obligations imposed by this Declaration upon the Association.. The Board during any calendar year shall be entitled to increase the Annual Assessment for that year if it should determine that the estimate or current assessment is insufficient for that year, provided that the Boazd shall give at ]east thirty (30) days advance notice thereof to the Owners. The Board of Directors shall establish the date(s) the Annual Assessment shall become due, and the manner in which it shall be paid. Section 11.4 One-time Assessment. Upon (i) the closing of the initial conveyance of each Lot by Declarant to an Owner other than a Builder, or (ii) the sale of each Lot by a Builder (either by deed or by installment sale, conditional sale or land-contract sale), the purchaser of such Lot shall pay to the Association, in addition to any other amounts then owed or due to the Association, as a contribution to its working capital and start-up fund, an amount of Two Hundred Fifty Dollars ($250.00) against such Lot, which payment shall be non-refundable and shall not be considered as an advance payment of any assessment or other charge owed the Association with respect to such Lot. Such working capital and start-up fund shall be held and used by the Association for payment of, or reimbursement to Declarant for advances made to pay, expenses of the Association for its early period of operation of the Development, to enable the Association to have cash available to meet unforeseen expenditures, or to acquire additional equipment or services deemed necessary by the Board. Section 11.5 ~ecia] Assessment. In addition to such other Special Assessments as, may be authorized herein, the Board of Directors may levy in any year a Special Assessment(s) for the purpose of enforcing these covenants and restrictions, for legal expenses, for collection expenses, other activity that is the responsibility of an Owner hereunder but which such Owner has not undertaken as required hereunder, for 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 and/or for operating deficits which the Association may from time to time incur, provided that any such assessment shall have the assent of a majority or the votes of the members who are voting in person or by proxy at a meeting duly called for this purpose. 25 o • Section 11.6 Violation Assessment. In addition to all other assessments as be authorized herein, the Board of Directors may levy a Violation Assessment to an Owner, (i) for a violation against this Declaration or (ii) for damages if any portion of the Common Area that the Associafion is obligated to maintain, repair and/or replace is damaged due to the willful or negligent act or omission of such Owner or Owner's guest or invitee. In the event of such damage, the Board shall have the right to undertake the necessary maintenance, repair or replacement. The choice between repair or replacement is in the sole discretion of the Board. Section 11.7 Basis for Assessment. (A) Lots Generally. Each Lot owned by a person other than Declarant or a Builder shall be assessed at a uniform rate without regard to whether a Residence has been constructed upon the Lot. (B) Lots Owned by Declarant or Builder. Declarant and any Builder shall not pay the Annual Assessment and Special Assessment so long as any Residence constructed upon a Lot by Declarant or a Builder has not been either conveyed to an Owner intending to occupy or rent said Residence as a residence or leased to an individual or an entity for use as a Residence. Section 11.8 Notice and Due Date. Written notice of special assessments and such other assessment notices as the Board of Directors shall deem appropriate shall be delivered to every Owner subject thereto. The due dates for a]] assessments shall be established by the Board of Directors. Section 11.9 Collection. All Assessments, together with interest thereon, attorneys' fees, and other costs of collection thereof, shall be a charge on the land and shall be a continuing lien upon the Lot against which each Assessment is made until paid in full. Each Assessment, together with interest thereon and costs of collection thereof, including reasonable attorney fees, shall also be the personal obligation of the Person who was the Owner of the Lot at the time when the Assessment became due. Section 11.10 Effect of Nonpayment of Assessments• Remedies of the Association. Any assessment not paid within- thirty (30) days after the due date shall bear interest from the due date at twelve percent (12%) per annum plus a late charge not exceeding Fifty Dol]ars ($50.00). The Association shall be entitled to initiate any lawful action to collect delinquent assessments plus any expenses or costs, including attorneys' fees, incurred by the Association in collecting such assessment(s). If the Association has provided for collection of any assessment in installments, upon default in the payment of any one or more installments, the Association may accelerate payment and declare the entire balance of said assessment due and payable in full. No Owner may waive or otherwise avoid liability for the assessment provided for herein by non-use of the Common Area or abandonment of his Lot. Section 11.11 Suspension of Privileges of Membership.. Notwithstanding any other provision contained herein, the Board of Directors shall have the right to suspend the voting rights, if any, and the services to be provided by the Association, together with the right to use the Common Areas of any member: (A) for any period during which any of the assessments or any fines/fees assessed under this Declaration owed by such member remains unpaid; (B) during the period of any continuing violation of this Declaration; and 26 0 • (C) during the period of any violation of the Articles of Incorporation, By-Laws, or regulations of the Association. Section 11.12 Certificates. The Association shall, upon reasonable request by an Owner, at any time, famish a letter in writing signed by an officer of the Association, indicating the accounting status of assessments on a Lot showing the balance due the Association, if any. Section 11.13 Subordination of the Lien to MortsaQes. The lien of the assessments provided for herein against a Lot shall be subordinate to the lien or any recorded first mortgage covering such Lot and to any valid tax or special assessment lien on such Lot in favor of any governmental taxing or assessing authority. Sale or transfer of any Lot shall not affect the lien of assessments levied under this Article XI. The sale or transfer of any Lot pursuant to mortgage foreclosure or any proceeding in lieu thereof shall, however, extinguish the lien of such assessments which became due or are attributable to the period of time prior to such sale or transfer. No sale transfer shall relieve such Lot from liability for any assessments thereafrer becoming due or from the lien thereof. ARTICLE XII REMEDIES Section 12.1 Delay or Failure to Enforce. No delay or failure on the part of any aggrieved party to invoke any available remedy with respect to a violation of any one or more of covenants, conditions, and restrictions in this Declaration shall be held to be a waiver by that party or an estoppel of that party of any right available to such party upon the occurrence, reoccurrence or continuation of such violation or violations of this Declaration. Section 12.2 Enforcement by the City or the City's Plan Commission. These Restrictions may be enforced by the City, the City's Plan Commission, or its successors or assigns, pursuant to whatever powers or procedures are statutorily available to it for such purposes. Section 12.3 In General. The Association or any party to whose benefit this Declaration inures, including the Declarant and/or any Owner, may proceed at ]aw or in equity to prevent the occurrence or continuation of any violation of these Restrictions, or to compel compliance with these Restrictions and Covenants, and shall be entitled to recover costs of collection and reasonable attorney's fees; however, neither the Declarant, nor the Association, shall be liable for damages of any kind to any person for failing either to abide by, enforce, or carry out any terms, conditions, or restrictions contained in this Declaration. ARTICLE XIII EFFECT ON BECOMING AN O~'VNER The Owner(s) of any Lot subject to this Declaration, by acceptance of a deed conveying title thereto, or by virtue of the execution of a contract for the purchase thereof, whether from Declarant, a Builder, or a subsequent Owner of such Lot, shall accept such deed and execute such contract subject to each and every covenant, condition, and restrictions contained in this Declaration. By acceptance of such deed or execution of such contract each Owner acknowledges the rights and powers of the Declarant, Committee, and Association contained in this Declaration, and also, for themselves, their heirs, personal representatives, successors and assigns, such Owner(s) covenant and agree and consent to and with the 27 o • Declarant, Committee and the Association and to and with the other Owners and subsequent Owners of each of the Lots affected by this Declaration to keep, observe, comply with and perform such covenants, conditions, and restrictions contained in this Declazation. ARTICLE XIV TITLES The titles preceding the various paragraphs and subparagraphs of this Declaration are for convenience of reference only and none of them shall be used as an aid to the construction of any provisions of this Declaration. Wherever and whenever applicable, the singular form of any word shall be taken to mean or apply to the plural, and the masculine form shall by taken to mean or apply to the feminine or to the neuter. ARTICLE XV SEVERABILITY 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. ARTICLE XVI AMENDMENT TO TIIIS DECLARATION 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 amended or modified at any time by an instrument recorded in the Office of the Recorder of Hamilton County, Indiana, approved and signed by at least seventy-five percent (75%) of the then Owners. Provided, however, that none of the rights or duties of Declarant reserved or set out hereunder may be amended or changed without Declarant's prior written approval. Except as prohibited below, this Declaration may also be amended by Declarant, if it then has any ownership interest in the Property, at any time within five (5) yeazs after the recordation hereof. Any amendment must be recorded. Neither the Association, the Owners or Declarant shall effect any of the following changes without the prior written approval of two-thirds (b) of the Owners of Lots (excluding Declarant or Builder): a. By act or omission seek to abandon, partition, subdivide, encumber, sell or transfer the Common Area owned directly or indirectly by the Association for the benefit of the Owners. The granting of easements for public utilities or other public purposes consistent with the intended use of the Common Area owned by the Association by the Dwelling Unit Owners is not a transfer in the meaning of this clause; 28 o • b. Fail to maintain fire and extended coverage on insurable Common Area owned by the Association on a current replacement cost basis in an amount at least one hundred percent (100%) of the insurable value (based on current replacement costs); c. Use hazard insurance proceeds for losses to any Common Area owned by the Association for other than the repair, replacement, or reconstruction of the Common Area owned by the Association. IN TESTIMONY WHEREOF, witness the signature of the Declarant of this Declaration as of the date first above written. DECLARANT: PLATINiJM PROPERTIES, LLC, an Indiana~lim-i~t-e-d liability company / By: -~ an~_~~ t~f Steven R. Edwards, Vice Prestdent- ChiefFinancial Officer STATE OF INDIANA ) SS: COUNTY OF 10 ) Before me, a Notary Public, in and for said County and State, personally appeared Steven R. Edwards, Vice President-Chief Financial Officer of Platinum Properties, LLC, an Indiana limited liability coinpany, as the Declarant herein, and acknowledged the execution of the foregoing Declaration of Covenants, Conditions, and Restrictions of Cherry Creek Estates this ZyTa day of I uNE 2003 ~~~ptmnpi 6 My Commission Expires: ~ 2~~ ~ l~~ `~- ~ ~ ~ : No ary Public DtJ11GLA5pELib10RE *SEAL _ ~~ wxA Resident of CotSity, 3 dn3 ~" *~ Printed: rt~rP ut.N 1030Ub ~ -~PC`ar8f 91' 4~St~i d '~~~~i~NDiANP~~``````~ ' This Instrument Prepared by: Charles D. Frankenberger, Nelson &Frankenberger, 3021 E. 98th Street, Suite 220, Indianapolis, IN 46280 - (317) 844-0106 H:Uanet\Platinum\Cheny Creek\CCRs.doc 29 EXHIBIT "A>, A part of the Southwest and Southeast Quarters of Section 22, Township 18 North, Range 4 East, Clay Township, Hamilton County, Indiana,.more particularly described as follows: - Commencing at the Southwest corner of said Southwest Quarter Section; thence North 00 degrees 27 minutes 51 seconds East along the West line of said Southwest Quarter Section 912.76 feet; thence North 89 degrees 58 minutes 42 second East 75.01 feet to the East right-of--way line of Hazel Dell Parkway as described in Right-of--Way Grant per Instrument No. 9809822044 as recorded in the Office of the Recorder in Hamilton County, Indiana; said point also being on the North right-of--way line of Cherry Tree Road as described in Deed Book 277, Page 284 as recorded in the Office of the Recorder in Hamilton County, Indiana; thence North 89 degrees 57 minutes 34 seconds West along said North right-of--way line of Cherry Tree Road 300.35 -feet to the POINT OF BEGINNING of this descripfion; thence North 03 degrees 42 minutes 37 seconds West 91.38 feet; thence North 00 degrees 02 minutes 29~seconds East 337.98 feet; thence South 89 degrees 58 minutes 42 seconds West 271.24 feet to a point on the aforesaid Eastright-of- way line of Hazel Dell Parkway, the following three (3) courses are along said East right-of--way; (1) North 00 degrees 27 minutes 40 seconds East 242.86 feet; (2) Noth 02 degrees 24 minutes 06 seconds West 600.89 feet; (3) North O1 degrees 26 minutes 22 seconds East 456.30 feet; thence South 89 degrees 57 minutes 31 seconds East along the North line of said Southwest Quarter Section 2,559.87 feet to the Northeast comer of said Southwest Quarter Section; thence North 89 degrees 37 minutes 12 seconds East along the North line of the Southeast Quarter of said Section 181.06 feet; thence South 00 degrees 22 minutes 48 seconds East 500.00 feet; thence North 89 degrees 37 minutes 12 seconds East parallel to the North line of said Southeast Quarter Section 450.00 feet; thence North 00 degrees 22 minutes 48 seconds West 500.00 feet to the North line of said Southeast Quarter Section; thence North 89 degrees 37 minutes 12 seconds East along the said North line 688.30 feet; thence South 00 degrees 18 minutes 54 seconds West along the West line of Settler's Ridge At Haverstick, Section 2 as recorded in Instument No. 200100045181 in the Office of the Recorder of Hamilton County, Indiana 1,773.59 feet to the North line of Stone Haven At Haverstick, Section 6 as recorded as Instrument No. 200100032800 in the Office of the Recorder of Hamilton County, Indiana; thence North 89 degrees 56 minutes 16 seconds West along said North line of Stone Haven 985.01 feet; thence North 00 degrees 03 minutes 44 seconds East 200.00 feet; thence North 89 degrees 56 minutes 16 seconds West 450.00 feet; thence South 00 degrees 03 minutes 44 seconds West 200.36 feet to the North line of Delaware Trace, Section 4 as recorded as Instrument No. 200000035110 in the Office of the Recorder of Hamilton County, Indiana; thence South 89 degrees 58 minutes 42 seconds West along said North line of Delaware Trace, 2,145.69 feet; thence North 00 degrees 06 minutes 16 seconds West 37.83 feet to the place ofbeginning, containing 146.783 acres, more or less. S:kF3405~I.EGAL~BOUNDARY August 21, 2003 EXI-l7BIT "B" Additional Real Estate The Additional Real Estate shall be any parcel of land, not to exceed 50 acres in size, located north and northwest of the Real Estate. H:Vanet\Plarinum\Cherry Creek\Ex.B.doc