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HomeMy WebLinkAboutDeclaration of Covenants & Restrictions C, DECLARATION OF COVENANTS AND RESTRICTIONS OF WESTHAVEN THIS DECLARATION OF COVENANTS AND RESTRICTIONS is made as of the day of 2008, by PITTMAN REAL ESTATE SERVICES, LLC "Declarant Recitals A. Declarant is the legal or equitable owner of the real estate located in Hamilton County, Indiana, described in Exhibit A, upon which Declarant intends, but is not obligated, to develop a residential subdivision to be known as Westhaven "Westhaven B. Declarant has or will construct certain improvements and amenities which shall constitute Community Area. C. Declarant desires to provide for the preservation and enhancement of the property values and amenities in Westhaven and for the maintenance of the Tract and the improvements thereon, and to this end desires to subject the Tract to the covenants, restrictions, easements, charges and liens hereinafter set forth, each of which is for the benefit of the Lots and lands in the Tract and the future owner thereof. D. Declarant deems it desirable, for the efficient preservation of the values and amenities in Westhaven, to create an age ncy to which may be delegated and assigned the powers of owning, maintaining and administering the Community Area, administering and enforcing the Restrictions, collecting and disbursing the Assessments and charges hereinafter created, promoting the recreation, health, safety and welfare of the Owners of Lots in Westhaven and performing the duties and obligations required under this Declaration. E. Declarant shall incorporate under the laws of the State of Indiana a non profit corporation known as The Westhaven Homeowners Association, Inc., for the purpose of exercising such functions. Declarant hereby declares that all of the Lots and lands in the Tract as they are held and shall be held, conveyed, hypothecated or encumbered, leased, rented, used, occupied and improved, are subject to the following Restrictions, all of which are declared to be in furtherance of a plan for the improvement and sale of Lots in the Tract, and are established and agreed upon for the purpose of enhancing and protecting the value, desirability and attractiveness of the Tract as a whole and of each of the Residences, Lots and lands situated therein. The Restrictions shall run with the land and shall be binding upon Declarant, its successors and assigns, and upon the parties having or acquiring any interest in the Tract or any part or parts thereof subject to such Restrictions, and shall inure to the benefit of Declarant and its Successors in title to the Tract or any part or parts thereof. PAGE 1 OF 23 83575.4 Article 1. DEFINITIONS The following terms, as used in this Declaration, unless the context clearly requires otherwise, shall have the following meanings: "Building Guidelines" means the document containing rules, regulations, policies, and procedures adopted by the Board of Directors or the Design Review Board, as the same may from time to time be amended. "Design Review Board" or "Review Board" means that entity established pursuant to this Declaration for the purposes therein stated. "Articles" means the Articles of Incorporation of the Corporation, as amended from time to time. "Assessments" means all sums lawfully assessed against the Members of the Corporation or as declared by this Declaration, any Supplemental Declaration, the Articles or the By -Laws. "Board of Directors" means the governing body of the Corporation elected by the Members in accordance with the By -Laws. "Builder" means a person or entity engaged in the organized construction of a Residence on a Lot. "Building Setback Lines or B.S.L." are established on the Plat between which lines and the nearest Lot line, no structure shall be erected. "By Laws" means the Code of By -Laws of the Corporation, as amended from time to time. "Common Area" means (1) those portions of the Property, including the Entry Ways and other improvements thereto, facilities and personal property owned, to -be- owned, leased or to- be- leased by the Corporation from time to time for the common use, benefit and enjoyment of the Owners (as hereinafter denied), and (ii) items (if any) deemed Common Area for maintenance purposes only. Unless expressly stated to the contrary, the term Common Area as used herein (whether or not so expressed) shall include all portions of the Property designated on the Plat (as hereafter defined) as a "Block "Common Area or "C.A. The Common Area is to be conveyed to the Corporation at the time of the conveyance of the first Lot to an Owner and shall be held by the Corporation for the use and benefit of the Owners subject to such rules and regulations established from time to time by the Corporation. "Community Area" means (i) the Drainage System, (ii) the area designated on the Plat as Common Area, (iii) the Entry Ways, (iv) any utility service lines or facilities not maintained by a public utility company or governmental agency that are located on, over or below or through the Tract, (v) any areas of land (1) shown on any Plat, (2) described in any recorded instrument prepared by Declarant or its agents, or (3) conveyed to or acquired by the Corporation, together with all improvements thereto, that are intended to be devoted to the use or enjoyment of some, but not necessarily all, of the Owners of Lots; and (vi) the private streets within the Common Area. "Corporation" means The Westhaven Homeowners Association, Inc., an Indiana nonprofit corporation, its successors and assigns, (sometimes "Association PAGE 2 OF 23 83575.4 "Declarant" means Pittman Real Estate Services, LLC, its successors and assigns to its interest in the Tract other than Owners purchasing Lots or Residences by deed from Declarant (unless the conveyance indicated an intent that the grantee assume the rights and obligations of Declarant). "Development Area" means the land described in Exhibit A (sometimes referred to herein as "Tract "Drainage Board" means the Hamilton County Drainage Board, its successors or assigns. "Drainage System" means the open drainage ditches and swales, the subsurface drainage tiles, pipes and structures, the dry and wet retention and /or detention ponds, and the other structures, fixtures, properties, equipment and Facilities located within the Tract and designed for the purpose of controlling, retaining or expediting the drainage of surface and subsurface waters from, over and across the Tract including but not limited to those shown or referred to on a Plat, all or part of which may be established as legal drains subject to the jurisdiction of the Drainage Board. "Entry Way" means the structures constructed as an entrance to Westhaven including signage, brick walls, fencing, and the entry gate. "Facilities" means the Common Areas, Community Areas and all improvements thereto (including landscaping) and all property owned by the Corporation. "General Plan of Development" means that plan prepared by Declarant and approved, if necessary, by appropriate public agencies that outlines the total scheme of development and general uses of land in the Development Area, as such may be amended from time to time. "Lot" means a platted lot as shown on a Plat. "Maintenance Costs" means all of the costs necessary to keep the Facilities to which the term applies operational and in good condition, including but not limited to the cost of all upkeep, maintenance, repair, replacement of all or any part of any such facility, payment of all insurance with respect thereto, all taxes imposed on the facility and on the underlying land, leasehold, easement or right -of -way, and any other expense related to the continuous maintenance, operation or improvement of the facility, and all expenses related to the performance of the duties of the Association under this Declaration. "Member" means a Class A or Class B member of the Corporation and "Members" means Class A and Class B members of the Corporation. "Mortgagee" means the holder of a first mortgage on a Residence. "Owner" means a Person, including Declarant, who at the time has or is acquiring any interest in a Lot except a Person who has or is acquiring such an interest merely as security for the performance of an obligation. "Person" means an individual, firm, corporation, partnership, association, trust or other legal entity, or any combination thereof "Plat" means a final secondary plat of a portion of the Development Area recorded in the Office of the Recorder of Hamilton County, Indiana. PAGE 3 of 23 83575.4 "Reserve for Replacements" means a fund established and maintained by the Corporation to meet the cost of periodic maintenance, repairs, renewal and replacement of the Community Area. "Residence" means any structure intended exclusively for occupancy by a single family together with all appurtenances thereto, including private garage and outbuildings and recreational facilities usual and incidental to the use of a single family residential lot. "Restrictions" means the covenants, conditions, easements, charges, liens, restrictions, rules and regulations and all other provisions set forth in this Declaration, as the same may from time to time be amended. "Westhaven" means the name by which the Tract shall be known. "Tract" means the real estate described in Exhibit A (sometimes referred to herein as the "Development Area "Zoning Authority" with respect to any action means the Director of the Department Of Community Services of the City of Carmel or, where he lacks the capacity to take action, or fails to take such action, the governmental body or bodies, administrative or judicial, in which authority is vested under applicable law to hear appeals from, or review the action, or the failure to act of the Director. "Zoning Ordinance" means The Zoning Ordinance of the City of Carmel /Clay Township, Indiana, as amended. Article 2. DECLARATION Declarant hereby expressly declares that the Tract shall be subject to these Restrictions. The Owner of any Lot subject to these Restrictions, by (i) acceptance of a deed conveying title thereto, or the execution of 'a contract for the purchase thereof whether from Declarant or a subsequent Owner of such Lot, or (ii) by the act of occupancy of any Lot shall accept such deed and execute such contract subject to each Restriction and agreement herein contained. By acceptance of such deed or execution of such contract, each Owner acknowledges the rights and powers of Declarant and of the Corporation with respect to these Restrictions to keep, observe, comply with and perform such Restrictions and agreements. Article 3. DRAINAGE SYSTEM The Drainage System has or will be constructed for the purpose of controlling drainage within and adjacent to the Development Area. The Corporation shall maintain the Drainage System to the extent not maintained by the Drainage Board and the Maintenance Costs thereof shall be assessed against' all Lots subject to assessment serviced by that part of the Drainage System with respect to which Maintenance Costs are incurred. Each Owner shall be individually liable for the cost of maintenance of any portion of the Drainage System located entirely upon his Lot which is devoted exclusively to drainage of his Lot and is not maintained by the Drainage Board. PAGE 4 OF 23 83575.4 Article 4. MAINTENANCE OF ENTRY WAY AND COMMUNITY AREA The Corporation shall maintain the Entry Way and the Community Area, and all improvements and plantings thereon, and the Maintenance Costs thereof shall be assessed as a General Assessment against all Lots subject to assessment. Grass, trees, shrubs and other plantings located on an Entry Way or within the Community Area shall be kept neatly cut, cultivated or trimmed as reasonably required to maintain an attractive entrance to Westhaven or a part thereof or a planting area within Westhaven. All entrance signs located on an Entry Way shall be maintained at all times in good and sightly condition appropriate to a first -class residential subdivision. Article 5. CONSTRUCTION OF RESIDENCES A. Land Use. Lots may be used only for residential purposes (occupied by only one (1) immediate family) and only one Residence may be constructed thereon. No portion of any Lot may be sold or subdivided. 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. B. The Westhaven Building Guidelines. The ownership, use, and enjoyment of each Lot is subject to The Westhaven Building Guidelines. C. Building Location. No building may be erected between the building line ("B.S.L.") shown on the Plat and the front, side or rear Lot line. D. Storage Tanks. No gas or oil storage tanks shall be located on the Tract. E. Construction and Landscaping. All construction upon, landscaping of, and other improvements to a Lot shall be completed strictly in accordance with the Lot Development Plan approved by the Design Review Board. All landscaping specified on the landscaping plan approved by the Design Review Board shall be installed on the Lot strictly in accordance with such approved plan within thirty (30) days following substantial completion of the Residence unless the Board agrees to a later landscaping completion date. F. Sanitary Sewer Systems. The sole sanitary sewerage collection system for each Lot shall be operated by the Clay Township Regional Waste District or a successor public agency or public utility. G. Water Systems. Domestic water service will be available to each Lot from an Indianapolis Water Company water line located within the right -of -way of an adjacent street and each Owner shall connect to such water line to provide water for domestic use on the Lot and shall pay all connection, availability or other charges lawfully established with respect to connections thereto. H. Drainage. In the event storm water drainage from any Lot or Lots flows across another Lot, provision shall be made by the Owner of such Lot to permit such drainage to continue, without restriction or reduction, across the downstream Lot and into the natural drainage channel or course, although no specific drainage easement for such flow of water is provided on the Plat. To the extent not maintained by the Drainage Board, the "Drainage Easements" reserved as drainage swales shall be maintained by PAGE 5 OF 23 83575.4 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 and such Owner shall install necessary culverts upon their respective Lots as necessary to permit proper drainage. Lots within Westhaven may be included in a legal drain established by the Drainage Board. In such event, each Lot in Westhaven will be subject to assessment by the Drainage Board for the cost of maintenance of the portion of the Drainage System included in such legal drain, which' assessment will be a lien against the Lot. The elevation of a Lot shall not be changed so as to affect materially the surface elevation or grade of surrounding Lots. Perimeter foundation drains, sump pump drains and downspouts shall not be outletted into streets or street rights -of -way. These drains shall be connected whenever feasible into a subsurface drainage tile. 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. I. Diligence in Construction. Every building whose construction on any Lot is begun shall be completed within eighteen (18) months after the beginning of such construction. If an improvement has been partially or totally destroyed by fire or otherwise, such structure shall be razed or restored within three (3) months from the time of such destruction or damage, provided, if the Owner is restoring the Residence and has commenced such restoration and is diligently prosecuting the completion thereof, such Person shall have a total of twelve (12) months to complete such restoration. J. Prohibition of Used Structures. All structures constructed or placed on any Lot shall be constructed with substantially all new materials, and no used structures shall be relocated or placed on any such Lot. K. Restrictions on Use. The following Restrictions on the use and enjoyment of the Lots, Residences and Common Areas shall be in addition to any other covenants or restrictions contained herein and in any subdivision plat of any part of the Tract heretofore or hereafter recorded, and all such Restrictions are for the mutual benefit of and be enforceable by any Owner, or by Declarant or the Corporation. Present or future Owners or the Declarant or Corporation shall be entitled to injunctive relief against any violation or attempted violation of any such Restrictions, and shall, in addition, be entitled to damages for any injuries or losses resulting from any violations thereof, but there shall be no right of reversion or forfeiture resulting from such violation. These Restrictions are as follows: (i) Nothing shall be done or kept in any Residence, or on any Lot, which will cause an increase in the rate of insurance on any Common Areas. No Owner shall permit anything to be done or kept in his Residence or on his Lot which will result in a cancellation of insurance on any part of the Common Areas, or which would be in violation of any law or ordinance or the requirements of any insurance underwriting or rating bureau. (ii) No nuisance shall be permitted and no waste shall be committed in Common Area, Residence or on any Lot. (iii) No Owner shall cause or permit anything to be hung or displayed on the outside of the windows of his Residence or placed on the outside walls of any building, and no sign, awning, canopy, shutter or radio or television antenna PACE 6 of 23 83575.4 or other attachment or thing shall be affixed to or placed upon the exterior walls or roofs or any other parts of any building without the prior consent of the Design Review Board unless otherwise expressly authorized herein, or in any recorded subdivision plat, or by the rules, regulations and guidelines of the Design Review Board. (iv) No Residence or Lot shall be used in any unlawful manner or in any manner which might cause injury to the reputation of the subdivision developed or to be developed on the Tract, or which might be a nuisance, annoyance, inconvenience or damage to other Owners and occupants of Residence or neighboring property, including without limiting the generality of the foregoing, noise by the use of any musical instruments, radio, television, loud speakers, electrical equipment, amplifiers or other equipment or machines or Loud persons. (v) No industry, trade, or other commercial or religious activity, educational or otherwise, designed for profit, altruism or otherwise, shall be conducted, practiced or permitted on the Tract. (vi). All Owners and members of their families, their guests, or invitees, and all occupants of any Residence or other persons entitled to use the same and to use and enjoy the Common Areas or any part thereof, shall observe and be governed by such rules and regulations as may from time to time be promulgated and issued by. the Design Review Board or Corporation governing the operation, use and enjoyment of the Common Areas. (vii) No Owner shall be allowed to plant trees, landscape or do any gardening in any of the Common Areas, except with express permission from the Design Review Board. (viii) Common Areas shall be used and enjoyed only for the purposes for which they are designed and intended, and shall be used subject to the rules and regulations from time to time adopted by the Design Review Board or Corporation. Article 6. MAINTENANCE OF LOTS A. Vehicle Parking. No camper, motor home, truck, trailer, boat, motorcycle, bus, commercial vehicle of any kind, or disabled vehicle may be parked or stored overnight or longer on any Lot. B. Signs. Except for such signs as Declarant may in its absolute discretion display in connection with the development of Westhaven and the sale of Lots therein, no sign of any kind shall be displayed to the public view on 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. C. Nuisances /Animals. 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. No animals shall be kept or maintained on PAGE 7 OF 23 83575.4 any Lot except the usual household pets, and, in such cases, such household pets shall be kept reasonably confined so as not to become a nuisance. Barking dogs shall constitute a nuisance. D. 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 approved by the Design Review Board and out of public sight, except for the evening prior to and the day of garbage pickup. All equipment for storage or disposal of such materials shall be kept clean and sanitary. No Owner shall burn or permit the burning outdoors of garbage, refuse, leaves, branches or other debris. E. Livestock and Poultry. No animal, 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 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. F. Outside Burning. No trash, leaves, or other materials shall be burned upon a Lot. G. Electric Bug Killers. Electric bug killers, "zappers" and other similar devices shall not be installed at a location or locations which will result in the operation thereof becoming a nuisance or annoyance to other Owners and shall only be operated when outside activities require the use thereof and not continuously. H. Garage Doors. All garage doors shall remain fully lowered and closed except when in use for ingress and egress to the garage. I. Periodic Watering of Lawns. Each Owner shall water the lawn area of the Lot on a regular basis sufficient to maintain a lush green yard. If an Owner fails to comply with this restriction, the Design Review Board shall have the right to water the lawn at the expense of the Owner thereof and the Design Review Board shall have a lien against the watered Lot for the expense thereof J. Maintenance of Lots. Declarant shall have the responsibility to maintain all lots owned by Declarant. Once a Lot(s) has been purchased by the Owner, the Owner of said Lot(s) shall at all times maintain the Lot(s) and any improvements situated thereon in such a manner as to prevent the Lot(s) or improvements from becoming unsightly and, specifically, such Owner shall: (i) Mow the Lot(s) at such times as may be reasonably required in order to prevent the unsightly growth of vegetation and noxious weeds; (ii) Remove all debris or rubbish; (iii) Prevent the existence of any other condition that reasonably tends to detract from or diminish the aesthetic appearance of the Tract; (iv) Cut down and remove dead trees; (v) Where applicable, prevent debris and foreign material from entering drainage areas; and PAGE 8 OF 23 83575.4 (vi) Keep the exterior of all improvements in such a state of repair or maintenance as to avoid their becoming unsightly. K. Declarant's and the Corporation's Right to Perform Certain Maintenance. In the event that any Owner of a Lot shall fail to maintain his Lot and any improvements situated thereon in accordance with the provisions of these Restrictions, the Declarant, until the Applicable Date (as hereinafter defined), and, thereafter, the Corporation, shall have the right, but not the obligation, by and through its agents and 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 thereof to the Declarant or the Corporation shall be collected as a special assessment against such Owner and his Lot in the manner provided for herein for the collection of Maintenance Costs. Neither the Declarant nor the Corporation, nor. any of its agents, employees, or contractors, shall be liable for any damage which may result from any maintenance work performed hereunder. L. Model Homes. No Owner of any Lot shall build or permit the building upon his Lot of any dwelling house that is to be used as a model home, without permission to do so from the Declarant. M. Temporary Structures. No temporary house, trailer, tent, garage or other outbuilding shall be placed or erected on any Lot, nor shall any overnight camping be permitted on any Lot. Article 7. THE WESTHAVEN HOMEOWNERS ASSOCIATION, INC. A. Membership. Each Owner shall automatically be a Member and shall enjoy the privileges and be bound by the obligations contained in the Articles and By- Laws. If a Person would realize upon his security and become an Owner, he shall then be subject to all the requirements and limitations imposed by this Declaration on other Owners, including those provisions with respect to the payment of Assessments. B. Powers. The Corporation shall have such powers as are set forth in this Declaration and in the Articles, together with all other powers that belong to it by law. C. Classes of Members. The Corporation shall have two (2) classes of members as follows: Class A. Every Person who is an Owner shall be a Class A Member. Class B. Declarant shall be a Class B Member. No other person, except a successor to substantially all of the interest of Declarant in the Development Area, shall hold a Class B membership in the Corporation. The Class B membership shall terminate upon the written resignation of the Class B Member, when the Declarant no longer owns any of the Lots in the Development Area (as depicted on the General Plan of Development) or shown on the Plat, or on December 31, 2015, whichever first occurs (the "Applicable Date PAGE 9 OF 23 83575.4 D. Voting and Other Rights of Members. The voting and other rights of members shall be as specified in the Articles and By -Laws, except that a Class B Member shall have ten (10) votes for each Lot owned by the Class B Member. E. Reserve for Replacements. Declarant, or the Board of Directors (once the Declarant relinquishes responsibility for operating and maintaining the Community Areas), may establish and maintain the Reserve for Replacements by the allocation and payment to such reserve fund of an amount determined annually by the Declarant or the Board, as the case may be, to be sufficient to meet the cost of periodic maintenance, repairs, renewal and replacement of the Community Area. In determining the amount the Declarant or the Board, as the case may be, shall take into consideration the expected useful life of the Community Area, projected increases in the cost of materials and labor, interest to be earned by such fund and the advice of Declarant or such consultants as the Board may employ. The Reserve for Replacements shall be deposited in a special account with a lending institution the accounts of which are insured by an agency of the United States of America or may, in the discretion of the Declarant or the Board, as the case may be, be invested in obligations of, or fully guaranteed as to principal by, the United States of America. F. Limitations on Action by the Corporation. Unless the Class B Member or either (a) at least 100% of the Mortgagees (based on one vote for each first mortgage owned) or (b) 100% of the Class A members (other than Declarant) have given their prior written approval, the Corporation, the Board of Directors and the Owners may not (i) except as authorized by Article 9A., by act or omission seek to abandon, partition, subdivide, encumber, sell or transfer the Community Area (but the granting of easements for public utilities or other public purposes consistent with the intended use of the Community Area shall not be deemed a transfer for the purposes of this clause), (ii) fail to maintain fire and extended coverage on insurable Community Area on a current replacement cost basis in an amount at least one hundred percent (100 of the insurable value (based on current replacement cost), (iii) use hazard insurance proceeds for losses to any Community Area for other than the repair, replacement or reconstruction of the Community Area, (iv) change the method of determining the obligations, Assessments, dues or other charges that may be levied against the Owner of a Residence, (v) by act or omission change, waive or abandon any scheme of regulations or their enforcement pertaining to the architectural design or the exterior appearance of Residences, or the maintenance and upkeep of the Community Area, or (vi) fail to maintain the Reserve or Replacements in the amount required by this Declaration. G. Mergers. Upon a merger or consolidation of another corporation with the Corporation, its properties, rights and obligations may, as provided in its Articles of Incorporation or, alternately, the properties, rights and obligations of another corporation may by operation of law be added to the properties, rights and obligations of the Corporation as a surviving corporation pursuant to a merger. The surviving or consolidated corporation may administer the Restrictions established by this Declaration within the Tract together with the Restrictions established upon any other properties as one scheme. No other merger or consolidation, however, shall affect any revocation, PAGE 10 OF 23 83575.4 ti change or addition to the covenants established by this Declaration within the Tract except as hereinafter provided. H. Termination of Class B Membership. Wherever in this Declaration the consent, approval or vote of the Class B Member is required, such requirement shall cease at such time as the Class B membership terminates, but no such termination shall affect the rights and powers of Declarant set forth in this Declaration. Article 8. ASSESSMENTS A. Creation of the Lien and Personal Obligation of Assessments. Declarant hereby covenants, and each Owner of any Lot by acceptance of a deed thereto, whether or not it shall be so expressed in such deed, is deemed to covenant and agree to pay to the Corporation the following: (1) General Assessments; and (2) Special Assessments, such Assessments to be established and collected as hereinafter provided. All Assessments, together with interest thereon and costs of collection thereof, shall be a charge on the land and shall be a continuing lien upon the Lot against which each Assessment together with interest thereon and costs of collection thereof, shall also be the personal obligation of the Person who was the Owner of the Lot at the time when the Assessment became due. B. General Assessment. (i) Purpose of Assessment. The General Assessment levied by the Corporation shall be used exclusively to promote the recreation, health, safety' and welfare of the Owners of Lots, for the improvement, maintenance and operation of the Community Area and Lots, and for the performance of the duties and responsibilities of the Corporation established by this Declaration. (ii) Basis for Assessment: (a) Lots Generally: Each Lot owned by a Person other than the Declarant shall be assessed at a uniform rate without regard to whether a Residence has been constructed upon the Lot. (b) Lots Owned by Declarant. No Lot owned by Declarant shall be assessed by the Corporation. (c) Change in Basis. The basis of assessment may be changed with the assent of the Class B Member or of (i) 100% of the Class A members (excluding Declarant) or 100% of the Mortgagees (based on one vote for each first mortgage owned) who are voting in person or by proxy at a meeting of such members duly called for this purpose. (iii) Method of Assessment. The Declarant shall (until Declarant relinquishes such responsibility to the Corporation) or, after such time, the Board of Directors shall, on the basis specified in subparagraph (ii), fix the General PAGE 1 1 OF 23 83575.4 Assessment for each assessment year of the Corporation at an amount sufficient to meet the obligations imposed by this Declaration upon the Corporation. The Declarant shall (until Declarant relinquishes such responsibility to the Corporation) or, after such time, the Board of Directors shall establish the date(s) the General Assessment shall become due, and the manner in which it shall be paid. Until changed by the Board of Directors of Corporation, the General Assessment shall be paid in two (2) installments with the installments being due on or about June 1 of each year and December 1 of each year. Upon closing on a Lot or Lots, the Owner shall pay to Declarant (i) the pro -rated portion of the next installment of the assessment due for the current year, (ii) the next installment of the assessment which will be due, and (iii) a Five Hundred Dollar ($500.00) one- time reserve assessment. C. Special Assessment. In addition to such other Special Assessments as may be authorized herein, the Corporation may levy in any fiscal year a Special Assessment applicable to that year and not more than the next four (4) succeeding fiscal years for the purpose of defraying, in whole or in part, the cost of any construction, repair, or replacement of a capital improvement upon the Community Area, including fixtures and personal property relating thereto, provided that any such Assessment shall require only the approval of the Class B Member through and including the Applicable Date, and after the Applicable Date such Assessment shall require the vote of the Class B Member (if any) and a majority of the votes of the Class A members whose Lots are subject to assessment with respect to the capital improvement who are voting in person or by proxy at a meeting of such members duly called for this purpose. D. Effect of Nonpayment of Assessments: Remedies of the Corporation. Assessments not paid within thirty (30) days after the due date may upon resolution of the Board of Directors bear interest from the due date at a percentage rate no greater than the current statutory maximum annual interest rate, to be set by the Board of Directors for each assessment year. The Corporation shall be entitled to institute in any court of competent jurisdiction any lawful action to collect a delinquent Assessment plus any expenses or costs, including attorneys' fees, incurred by the Corporation in collecting such Assessment. If the Corporation has provided for collection of any Assessment or installments, upon default in the payment of any one or more installments, the Corporation may accelerate payment and declare the entire balance of said Assessment due and payable in full. No Owner may waive or otherwise escape liability for the Assessments provided for herein by non -use of the Community Area or abandonment of his Lot. E. Subordination of the Lien to Mortgages. The lien of the Assessments provided for herein against a Lot shall be subordinate to the lien of any recorded first mortgage covering such Lot and to any valid tax or special assessment lien on such Lot in favor of any governmental taxing or assessing_ authority. Sale or transfer of any Lot shall not affect the assessment lien. The sale or transfer of any Lot pursuant to mortgage foreclosure or any proceeding in lieu thereof shall, however, extinguish the lien of such Assessments as to payments which became due more than six (6) months prior to such sale or transfer. No sale or transfer shall relieve such Lot from liability for any Assessments thereafter becoming due or from the lien thereof PAGE 12 OF 23 83575.4 F. Certificates. The Corporation shall, upon demand by an Owner, at any time, furnish a certificate in writing signed by an officer of the Corporation that the Assessments on a Lot have been paid or that certain Assessments remain unpaid, as the case may be. G. Annual Budget. By a majority vote of the Directors, the Board of Directors shall adopt an annual budget for the subsequent fiscal year, which shall provide for allocation of expenses in such a manner that the obligations imposed by the Declaration and all Supplemental Declarations will be met. H. Declarant Loan. All monies spent by and/or advanced by Declarant through the Applicable Date for the benefit of Westhaven and the Owners (as determined in Declarant's sole discretion) shall constitute a loan to the Owners which shall be repaid by the Association over three (3) years commencing on the Applicable Date, with interest accruing at a rate of ten percent (l0 per annum, repayable in equal monthly payments beginning on the first day of the first month after the Applicable Date. The Association shall, on the Applicable Date, be required to sign a Promissory Note in favor of Deccarant evidencing such loan. Article 9. COMMUNITY AREA A. Ownership. The Community Area shall remain private, and neither Declarant's execution or recording of an instrument portraying the Community Area, nor the doing of any other act by Declarant is, or is intended to be, or shall be construed as, a dedication to the public of such Community Area. Declarant or the Corporation may, however, dedicate or transfer all or any part of the Community Area to any public utility. B. Obligations of the Corporation. The Corporation, subject to the rights of Declarant and the Owners set forth in this Declaration, shall be responsible for the exclusive management and control of the Community Area and all improvements thereon (including furnishings and equipment related thereto), and shall keep the Community Area in good, clean, attractive and sanitary condition, order and repair. C. Easements of Enjoyment. No Person shall have any right or easement of enjoyment in or to the Community Area except to the extent granted by, and subject to the terms and provisions of, this Declaration or any Supplemental Declaration executed by Declarant. Such rights and easements as are thus granted shall be appurtenant to and shall pass with the title to every Lot for whose benefit they are granted. D. Extent of Easements. The easements of enjoyment created hereby shall be subject to the following: (i) the right of the Corporation to establish reasonable rules for the use of the Community Area; (ii) the right of the Corporation to suspend the right of an Owner, and all Persons whose rights to use the Community Area derives from such Owner's ownership of a Lot, to use such portions of the Community Area for any period during which any Assessment against his Lot remains unpaid for more than thirty (30) days after notice; PAGE 13 of 23 83575.4 (iii) the right of the Corporation to suspend the right of an Owner, or any Person claiming through the Owner, to use the Community Area for a period not to exceed sixty (60) days for any other infraction of this Declaration, any Supplemental-Declaration or the Register of Regulations; (iv) the right of the Corporation to mortgage any or all of the Community Area and the Facilities constructed therein for the purposes of improvements to, or repair of, the .Community Area or Facilities constructed thereon, pursuant to approval of the Class B Member and two- thirds (2/3) of the votes of the Class A members (excluding Declarant) or two- thirds (2/3) of the Mortgagees (based on one vote for each first mortgage owned), voting in person or by proxy at a regular meeting of the Corporation or a meeting duly called for this purpose; and (v) the right of the Corporation to dedicate or transfer all or any part of the Community Area to any public agency, authority or utility, but no such dedication or transfer shall be effective unless an instrument signed by the Class B Member, if any, and the appropriate officers of the Corporation acting pursuant to authority granted by two- thirds (2/3) of the votes of the Class A members (excluding Declarant) or two- thirds (2/3) of the Mortgagees (based on one vote for each mortgage owned), agreeing to such dedication or transfer, has been recorded. E. Additional Rights of Use. The members of the family and the guests of every Person who has a right of enjoyment to the Community Area and Facilities shall be subject to such general regulations consistent with the provisions of this Declaration and all Supplemental Declarations as may be established from time to time by the Corporation. F. Damage or Destruction by Owner. In the event the Community Area or any Residence or Lot is damaged or destroyed by an Owner or any of his guests, tenants, licensees, agents, or members of his family, such Owner authorizes the Corporation to repair said damaged area, provided neither Declarant nor Corporation shall ever be required to repair any damage to a Residence or Lot, unless caused by Declarant or Corporation, as the case may be. If the Corporation shall undertake the repair of the damaged area, the repair shall be in a good and workmanlike manner, in conformance with the original plans and specifications of the area involved or as the area may have been modified or altered subsequently by the Corporation, in the discretion of the Corporation. An amount equal to the costs incurred to effect such repairs shall be assessed against such Owner as a Special Assessment and shall constitute a lien upon the Lot of said Owner. G. Conveyance of Title. Declarant may retain the legal title to the Community Area or any portion thereof until such time as it has completed improvements thereon but notwithstanding any provision herein, the Community Area shall be conveyed to the Association not later than two (2) years from the date the Community Area or part thereof is subjected to this Declaration. Owners shall have all the rights and obligations imposed by this Declaration with respect to such Community Area prior to conveyance, PAGE 14 OF 23 83575.4 except that the Corporation shall not be liable for payment of taxes and insurance for such Community Area until title is conveyed. Article 10. ADDITIONAL DUTIES AND RESPONSIBILITIES OF THE ASSOCIATION The Association shall provide snow removal for the streets within the Community Area, and the Owners shall be assessed for their share of the costs associated therewith. Article 1 1 EASEMENTS A. Plat Easements. In addition to such easements as are created elsewhere in this Declaration and as may be created by Declarant pursuant to written instruments recorded in the Office of the Recorder of Hamilton County, Indiana, the Tract is subject to drainage easements, sewer easements, utility easements, entry way easements, landscape easements, general maintenance easements, signage easements, regular conservation easements, and non access easements, either separately or in any combination thereof, as are shown on the Plats, which are reserved for the use of Declarant, Owners, the Corporation, the Design Review Board, public utility companies and governmental agencies as follows: (i) Drainage Easements "DE are created to provide paths and courses for area and local storm drainage, either over land or in adequate underground conduits, to serve the needs of Westhaven and adjoining ground and /or public drainage systems; and it shall be the individual responsibility of each Owner to maintain the drainage across his own Lot. Under no circumstance shall said easement be blocked in any manner by the construction or reconstruction of any improvement, nor shall any grading restrict, in any manner, the waterflow. Said areas are subject to construction or reconstruction to any extent necessary to obtain adequate drainage at any time by any governmental authority having jurisdiction over drainage, by Declarant, and by the Design Review Board, but neither Declarant nor the Design Review Board shall have any duty to undertake any such construction or reconstruction. Said easements are for the mutual use and benefit of the Owners. (ii) Sanitary Sewer Easements "SSE are created for the use of the local governmental agency having jurisdiction over any storm and sanitary waste disposal system which may be designed to serve Westhaven for the purpose of installation, maintenance, replacement and repair of sewers that are a part of said system. (iii) Utility Easements "UE are created for the use of Declarant, the Corporation and all public utility companies, not including transportation companies, for the installation and maintenance of mains, ducts, poles, lines and wires, as well as for all uses specified in the case of sewer easements. (iv) Landscape Easement "LE are created for the use of Declarant to install plant material, an entrance wall and other improvements. Following the initial planting and installation the Corporation shall maintain such plant material and improvements. PAGE 15 OF 23 83575.4 (v) Non- Access Easements "NAE are created to designate the area on the Plat over which vehicular ingress and egress is prohibited. (vi) Private Drive Easement "PDE is created to designate the part of the Tract, as shown on the Plat, over which vehicular ingress and egress is permitted. (vii) Maintenance Access Easement "MAE is created for access and use by Declarant, the Corporation and all entities hired by either of them for the purpose of accessing and maintaining all Facilities, Community Areas and all other areas of the Tract to which any of them need access in order to perform their obligations hereunder. All easements mentioned herein include the right of reasonable ingress and egress over portions of the Tract as necessary to utilize the easements. No structure, including fences, shall be built on any drainage, sewer or utility easement if such structure would interfere with the utilization of such easement for the purpose intended or violate any applicable legal requirement or the terms and conditions of any easement specifically granted to a Person who is not an Owner by an instrument recorded in the Office of the Recorder of Hamilton County, Indiana, but a concrete or asphalt driveway necessary to provide access to a Lot from a public street and a sidewalk installed by or at the direction of Declarant (and replacements thereof shall not be deemed a "structure" for the purpose of this Restriction.) B. General Easement. There is hereby created a blanket easement over, across, through and under the Tract for ingress and egress, installation, replacement, repair and maintenance of all Common Areas, Community Areas, underground utility and service lines and systems, including but not limited to water, sewers, gas, telephones, electricity, television, cable or communication lines and systems. By virtue of this easement it shall be expressly permissible for Declarant, Corporation or the providing utility or service company to install and maintain Facilities and equipment on the Tract and to excavate for such purposes, provided Declarant or such company restores the disturbed area as nearly as is practicable to the condition to which it was found. No sewers, electrical lines, water lines, or other utility service lines or Facilities for such utilities may be installed or relocated except as proposed and approved by Declarant prior to the conveyance of the first Lot to an Owner or by the Design Review Board thereafter. Should any utility furnishing a service covered by the general easement herein provided request a specific easement by separate recordable document, Declarant or the Corporation shall have the right to grant such easement on the Tract without conflicting with the terms thereof This blanket easement shall in no way affect any other recorded easements on the Tract and shall be limited to improvements as originally constructed, and shall not cover any portion of a Lot upon which a Residence has been constructed. C. Public Health and Safety Easements. An easement is hereby created for the benefit of and granted to, all police, fire protection, ambulance, delivery vehicles, and all similar persons to enter upon the Community Area in the performance of their duties. D. Drainage Board Easement. An easement is hereby created for the benefit of, and granted to, the Drainage Board to enter the Tract and all Lots therein to the extent PAGE 16 OF 23 83575.4 necessary to exercise its rights with respect to any legal drain constituting a part of the Drainage System. E. Declarant's Easement to Correct Drainage. For a period of ten (10) years from the date of conveyance of the first Lot, Declarant reserves a blanket easement and right on, over and under the Tract and all Lots to maintain and to correct the drainage of surface water including to cut any trees, bushes or shrubbery, make any gradings of the soil, install any infrastructure, or to take any other similar action reasonably necessary, following which Declarant shall restore the affected property to its original condition as nearly as practicable. Declarant shall give reasonable notice of its intention to take such action to all affected Owners, unless in the opinions of Declarant an emergency exists which precludes such notice. F. Water Retention. The Owner of each Lot, by acceptance of a deed thereto, consents to the temporary storage (retention) of storm water within the drainage easements (DE) on such Owner's Lot. Article 12. DECLARANT'S USE DURING CONSTRUCTION Notwithstanding any provisions to the contrary contained herein or in any other instrument or agreement, Declarant or its sales agents or contractors may maintain during the period of construction and sale of Lots and Residences within the Tract, upon such portion of the Tract as is owned by the Declarant, such Facilities as in the sole opinion of Declarant may be reasonably required, convenient or incidental to the construction and sale of Lots and Residences, including, without limitation, a business office, storage area, construction yards, signs, and sales offices. Article 13. ENFORCEMENT The Corporation, any Owner or Declarant shall have the right to enforce, by proceeding at law or in equity, all Restrictions, liens and charges now or hereafter imposed by the provisions of this Declaration and of any Supplemental Declaration, but neither Declarant nor the Corporation shall be liable for damage of any kind to any Person for failure either to abide by, enforce or carry out any of the Restrictions. No delay or failure by any Person for failure either to abide by, enforce or carry out any of the Restrictions or to invoke any available remedy with respect to a violation or violations thereof shall under any circumstances be deemed or held to be a waiver by that Person of the right to do so thereafter, or an estoppel of that Person to assert any right available to him upon the occurrence, recurrence or continuation of any violation or violations of the Restrictions. In any action to enforce this Declaration, the Person seeking enforcement shall be entitled to recover all costs of enforcement, including attorney's fees, if it substantially prevails in such action. Article 14. LIMITATIONS ON RIGHTS OF THE CORPORATION As long as there is a Class B Member, the Corporation may not use its resources nor take a public position in opposition to the General Plan of Development or to changes thereto PAGE 17 OF 23 83575.4 proposed by 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 Corporation or identify themselves as acting in the name, or on the behalf, of the Corporation. Article 15. APPROVALS BY DECLARANT As long as there is a Class B Member, the following actions shall only require the proper approval of Declarant: (1) declarations affecting the Tract or other real estate; (2) mortgaging of the Community Area; (3) amendment of this Declaration and any Supplemental Declaration; and (4) changes in the basis for assessment or the amount, use and time of payment of the initial Assessment for the Community Area. Article 16. MORTGAGES A. Notice to Corporation. Any Owner who places a first mortgage lien upon his Residence or the Mortgagee shall notify the Secretary of the Board of Directors of such Mortgage and provide the name and address of the Mortgagee. A record of such Mortgagee's name and address shall be maintained by the Secretary and any notice required to be given to the Mortgagee pursuant to the terms of the Declaration, any Supplemental Declaration, the Articles or the By -Laws (the "Organizational Documents shall be deemed effectively given if mailed to such Mortgagee at the address shown in such record in the time provided. Unless notification of any such mortgage and the name and address of Mortgagee are furnished to the Secretary, either by the Owner or the Mortgagee, no notice to any Mortgagee as may be otherwise required by the Organizational Documents shall be required and no Mortgagee shall be entitled to vote by virtue of the Organizational Documents or a proxy granted to such Mortgagee in connection with the mortgage. B. Notices to Mortgagees. The Corporation shall promptly provide to any Mortgagee of whom the Corporation has been provided notice under subparagraph A. above notice of any of the following: (i) Any condemnation or casualty loss that affects a material portion of the Community Area; (ii) Any delinquency in the payment of any Assessment by the Owner of any Residence on which said Mortgagee holds a mortgage or any default by an Owner under the Organizational Documents, if said delinquency or default continues for more than sixty (60) days; (iii) Any lapse, cancellation or material modifications of any insurance policy or fidelity bond maintained by the Corporation; (iv) Any proposed action that requires the consent of a specified percentage of Mortgagees; or (v) Any proposed amendment of the Organizational Documents effecting a change in (i) the interests in the Community Area appertaining to any Residence or the liability for Maintenance Costs appertaining thereto; (ii) the vote PAGE 18 OF 23 83575.4 appertaining to a Residence; or (iii) the purposes for which any Residence or the Community Area are restricted. C. Notice of Unpaid Assessment. The Corporation shall, upon request of a Mortgagee, a proposed Mortgagee, or a proposed purchaser who has a contractual right to purchase a Residence, furnish to such Mortgagee or purchaser a statement setting forth the amount of the unpaid Assessments against the Residence and the Owners, and any Mortgagee or grantee of the Residence shall not be liable for, nor shall the Residence conveyed be subject to a lien for, any unpaid Assessments in excess of the amount set forth in such statement. D. Financial Statements. Upon the request of any Mortgagee, the Corporation shall provide to said Mortgagee the most recent financial statement prepared on behalf of the Corporation. E. Payments by Mortgagees. Any Mortgagee may (i) pay taxes or other charges that are in default and that may or have become a lien upon the Community Area or any part thereof, and (ii) pay overdue premiums on hazard insurance policies or secure new hazard insurance coverage for the Community Area in case of a lapse of a policy. A Mortgagee making such payments shall be entitled to immediate reimbursement from the Corporation. Article 17. AMENDMENTS A. Generally. This Declaration may be amended at any time by an instrument signed by (i) the appropriate officers of the Corporation acting pursuant to the authority granted by not less than 100% of the votes of the Class A members cast at a meeting duly called for the purpose of amending this Declaration and, to the extent required herein (ii) Declarant. B. By Declarant. Declarant hereby reserves the right unilaterally to amend and revise the standards, covenants and Restrictions contained in this Declaration during the period prior to December 31, 2015. Such amendments shall be in writing, executed by Declarant, and recorded with the Recorder of Hamilton County, Indiana. No such amendment, however, shall restrict or diminish the rights or increase or expand the obligations of Owners with respect to Lots conveyed to such Owners prior to the amendment or adversely affect the rights and interests of Mortgagees holding first mortgages on Residences at the time of such amendment. Declarant shall give notice in writing to such Owners and Mortgagees of any amendments. Except to the extent authorized herein, Declarant shall not have the right at any time by amendment of this Declaration to grant or establish any easement through, across or over any Lot which Declarant has previously conveyed, without the consent of the Owner of such Lot. C. Effective Date. Any amendment shall become effective upon its recordation in the Office of the Recorder of Hamilton County, Indiana. PAGE 19 OF 23 83575.4 Article 18. INTERPRETATION The aforesaid titles preceding the various paragraphs and subparagraphs of this Declaration are for convenience of reference only, and none of them shall be used as an aid to the construction of any provision of this Declaration. Wherever and whenever applicable, the singular form of any word shall be taken to mean or apply to the plural, and the masculine form shall be taken to mean or apply to the feminine or to the neuter. Article 19. DURATION The foregoing covenants and Restrictions are for the mutual benefit and protection of the present and future Owners, the Corporation, and Declarant, and shall run with the land and shall be binding on all parties and all Persons claiming under them until December 31, 2010, at which time said covenants and Restrictions shall be automatically extended for successive periods of ten (10) years, unless changes are made in whole or in part by vote of those Persons who are then the Owners of a majority of the Lots in the Tract. Article 20. SEVERABILITY Every one of the Restrictions is hereby declared to be independent of, and severable from, the rest of the Restrictions and of and from every other one of the Restrictions, and of and from every combination of the Restrictions. Therefore, if any of the Restrictions shall be held to be invalid or to be unenforceable, or to lack the quality of running with the land, that holding shall be without effect upon the validity, enforceability or "running" quality of any other one of the Restrictions Article 21. NON LIABILITY OF DECLARANT Declarant shall not have any liability to an Owner or to any other Person with respect to drainage on, over or under a Lot. Such drainage shall be the responsibility of the Owner of the Lot upon which a Residence is constructed by acceptance of a deed to a Lot, and of the Builder of such Residence, and Owner shall be deemed to have agreed to indemnify and hold Declarant free and harmless from and against any and all liability arising from, related to, or in connection with drainage on, over and under the Lot described in such deed. Declarant shall have no duties, obligations or liabilities hereunder except such as are expressly assumed by Declarant, and no duty of, or warranty by, Declarant shall be implied by or inferred from any term or provision of this Declaration. Article 22. RESPONSIBILITY OF OWNERS Each Owner will preserve and maintain the part of the Drainage Easement located on such Owner's Lot, consistent with the purpose of such area to provide and facilitate storm water drainage. PAGE 20 OF 23 83575.4 Article 23. PRIVATE STREETS Declarant hereby covenants that it shall convey and transfer the Private Streets included in and constituting a part of the Real Estate to the Association upon the completion of such Private Streets. The Private Streets so conveyed by Declarant to the Association .shall, at the time of such conveyance, be subject to all easements, covenants, conditions, limitations and Restrictions then of record, but shall be free and clear of all liens and financial encumbrances, other than the lien of the then current non delinquent installment of real estate taxes and Assessments and subsequent installments thereof, which shall thereafter be paid when due by the Association, and shall be further subject to the terms and provisions of this Declaration. Declarant reserves unto itself, its successors and assigns, and hereby establishes for each Owner(s) of Lots, their guests and invitees, and all public and quasi public vehicles, an easement for ingress and egress on and over the Private Streets. The terms "public vehicles" and "quasi public vehicles" shall include, but shall not be limited to, vehicles operated for police and fire protection, ambulances and other emergency vehicles, for trash and garbage collection, and for mail and other delivery services operated in the performance of their duties. Article 24. NOTICE OF PRIVATE STREET Each Owner, by the acceptance of a deed to a Lot, acknowledges that all streets in Westhaven are Private Streets and that the maintenance, repair and replacement of such Private Streets is the sole responsibility of the Association as described herein; each Owner further agrees that by the acceptance of a deed to a Lot he waives the right to request the dedication of the Private Streets to the City of Carmel, Indiana, or to the Board of Hamilton County Commissioners. Article 25. COSTS AND ATTORNEYS' FEES In any proceeding arising because of failure of an Owner to make any payments required by this Declaration, the Articles or the By -laws, or to comply with any provisions of this Declaration, the Articles, the By -Laws, or the rules, regulations and guidelines adopted pursuant thereto, as each may be amended from time to time, the Declarant or Corporation shall be entitled to recover its costs and reasonable attorneys' fees incurred in connection with such default or failure. IN TESTIMONY WHEREOF, Declarant has executed this Declaration as of the date set forth above. Declarant PITTMAN REAL ESTATE SERVICES, LLC By: Steve A. Pittman, Member PAGE 21 OF 23 83575.4 STATE OF INDIANA )SS: COUNTY OF HAMILTON Before me, the undersigned, a Notary Public in and for said County and State, personally appeared Steve A. Pittman, a Member of Pittman Real Estate Services, LLC, who acknowledged the execution of the foregoing Declaration of Covenants and Restrictions. WITNESS my hand and Notarial Seal this day of 2008. Notary Public My Commission Expires: County of Residence: This instrument prepared by Nick Churchill, Pittman Partners, Inc., 11711 N. Pennsylvania St. Ste. 260 Cannel, IN 46032 PAGE 22 OF 23 83575.4 Exhibit A LEGAL DESCRIPTION A Part of the South Half of Section 21, Township 18 North, Range 3 East, Hamilton County, Indiana, being more particularly described as follows: Commencing at the Southeast corner of the South Half of Section 21, Township 18 North, Range 3 East, Hamilton County, Indiana; thence North 90 °00'00" West (assumed bearing) on the South line of said South Half a distance of 1337.65 feet to the Southeast corner of the West Half of the Southeast Quarter of said Section 21; thence continuing North 90 °00'00" West on the South line of said Section 21 a distance of 480.00 feet to a PK Nail; thence continuing North 90 °00'00" West on the South line of said Section 21 a distance of 1476.84 feet to a point on the prolongation of the East line of the real estate described in Deed Book 343, page 273 in the Office of the Recorder of Hamilton County, Indiana, said point being marked by a PK Nail; thence continuing North 90 °00'00" West on the South line of said Section a distance of 92.00 feet to the point of beginning to the herein described real estate, said point also being the Southeast corner of the real estate described in Instrument No. 9625246, being marked by a PK Nail; thence North 00 °00'00" East on the East line of said Instrument No. 9625246, a distance of 653.25 feet, thence North 90 °00'00" West on the North line of said Instrument No. 9625246, a distance of 333.45 feet; thence South 00 °00'00" West parallel with the East line of said real estate a distance of 653.25 feet to a point on the South line of the South half of said Section 21; thence South 90 °00'00" East, on the South line of said Section 21 a distance of 333.45 feet to the point of beginning, containing 5.000 aces, more or less.