HomeMy WebLinkAboutAvian Glen & Delaware TraceH 0 M E S~ LLC
April 19, 1999
To: Carmel Planning Commission Members & Staff
Hazel Dell Summit Subdivision is being developed
Development, who is the developer at Trails at Avian
Associates, who was the developer of Delaware Trace. These areas were future
sections of land to be developed by both parties. We entered into this joint
platting effort in an effort to combine our open space to create a large park
area at the north end of the community.
Davis Development will develop Sections I and II of the community and
Oakview Associates will develop Section III. The Association for the Trails
at Avian Glen is intended to be expanded to include the association for
Sections I and II and likewise for the association of Delaware Trace will be
expanded to include Section III. Both developers have developed amenity
areas with pools in the existing sections that were intended to be utilized
by future sections to be developed in this community.
Davis Development has supplied a notice in their marketing material to
all potential homeowners that these future sections would be incorporated
into the Trails at Avian Glen Association. Enclosed please find copies of
past marketing materials, which show our efforts to inform potential buyers
that this area would be expanded and included in the overall association
since our initial marketing of this project.
There may be several homeowners at the Public meeting, who have
expressed concerns of expanding their associations into these new areas. I
want to assure you that it was the intent of both developers from the initial
development to include these portions of these sites in the overall
association of Delaware Trace and Trails of Avian Glen.
I .have also enclosed a copy of a summary of pool size per number of
lots utilized in other developments in the Carmel area. As you can see from
the summary, the pool size to service the number of lots we are intending
falls in the middle of the communities I have researched.
Hopefully, this information may answer some questions that will be
raised from surrounding homeowners in regard to the expansion of their
associations to cover these new areas. This process is no different than
other communities such as Waterstone, Prairie View, Westins, Shelbourne
Greene and many others that have multiple neighborhoods, which share common
amenities.
Sincerely,
tChristopher R. White
President of Development
3755 East 82nd Street, Suite120 Indianapolis, lndiana46240 (317) 595-2800
pool Size per Lot Summary_
Claybridge 218
Shelbourne Greene 330
Springmill Village 260
Austin Oaks 263
Prairie View 310
Foster Estates 303
Trails at Avian
Glen/Emerald
Crest 266
WaterStone 564
Delaware Trace/
Con, nons 228
Plum Creek 550
Avian Glen 221
Springmill Ponds 229
50 x 25 = 1,250
30 x 75 ~ 2,250
28.5 x 65 = 1,853
75 x 26.5 = 1,988
32 x 75 = 2,400
30 x 82 = 2,460
30 x 75 = 2,250
(2) ~ 4,860
26.5 x 75 - 1,988
80 x 60 - 4,800
65 x 30 ~ 1,950
30 x 75 = 2,250
5.7
6.8
7.1
7.5
7.7
8.1
8.5
8.6
8.7
8.7
8.8
9.8
Carmel, Indiana
CA
~Davis
..TI!E. Tn~ILS AT AVIAN GLE. N.'
The "Trails at Avian Glen" is the newest custom community to
be developed by Davis Development in the City of Carmel. The new
sections o~ 0,9 and 10 will contain most of the name builders
that are presently constructing homes in Avian Glen Sections 1
thru 7. ~The amenit, ies~to be constructed for these new sections
will inc~u-~ a swi~[ng ~'~I~,- bathhouse, playground,landscaped
co--on areas an~ a_~e_~ra~l~o~e,:.~oca~ed~-al Ag- he south side
of~}creek. A new I]omeowners.'~ssoc~n~%I~be.~formed~ -for~
t~%s new community to provide for se'~-a'~ ~'s~ an~ maintenance of
the~new-pool'-a,d other amenltzes from tlte__exlstlng
Avian Glen~The-llomoowners~A~soc~atmon w~l-l~ic~%~.t Of~ ~sectlons
B,9 and 10 and~future~s~s~,~9~s':':to:~e~c~,~ructed by
Da~s~Deve'~6pment~o be Ioc~d eas~ of C~erry Tree Road.
This new area has been named the Trails at Avian Glen as a
bike trail is proposed along the south side of the creek that
flows through the community. This trail will ultimately connect
with trails to be constructed by other developers to th~ east. In
addition the City of Carmel has considered closing portions of
Cherry Tree Rd. and utilizing them as a Bike Trail. This would
provide pedestrians with access north and south to Cherry Tree
School, The Dad's Club, Clay Jr. High and future neighborhood
retail shops proposed at 131st St. and Hazeldell Rd. The portions
being considered to bu closed include the section between the
northern intersection of coopers Hawk Drive to the intersection
of Kildeer Place. This portion of the trail would probably not be
considered until Bazeldell Rd is completed south to 131st Street.
The amenities for these new sections will be constructed in
phases as the project is developed. The playground area will be
constructed in the fall of 1995 with the development of section
8. The pool and bathhouse will be constructed in the fall of 1996
to be ready for use by the spring of 1997. The bike path along
the south side of the creek will also be constructed in the fall
of 1996.
AVIAN GLEN
THE TRAH.S AT AVIAN GLEN
CUSTOM HOME BUILDERS LIST
'1.
BURKHARD CUSTOM HOMES, INC.
5042 Colflix Circle
Camlcl. Indiana 46033
(John Durkhard - Office 848-2853)
SAWYER BUILDING CORPORATION
3877 E. 1267H Street
Carmel, lndinnn 46033
(Marshall Howell - Office 843-2187. Mobile 443-7338)
HASKETT HOMES BY DESIGN, 1NC.
12411 Towne Road
Carmel, Indiana 46032
(Michael Hnskett - Office 846-9636. Mobile 431-7922)
CHESAPEAICE BUILDINO CORPORATION
13714 Smokey Rid§e Overtook
Carmel. Indiana 46033
(Alan Rosenberl~ - Off, ce 843-9406)
HUSKY BUILDERS, INC.
9952 Cedar Ridge Drive
Camel. lndiann 46032
(Glynn McFnlridge (Jeanne) - Office 843-9112
WILSON SWANK AND SONS
12411 Towne Road
Carmel. Indinna 46033
(Don Swnnk - Office 846-8687. Mobile 443-4433)
JOHN J. SCHNEIDER & CO., INC.
12505 West Road
Zionsville, Indiana 46077
(Sack Schneider - OIISce 844-{799)
PHIL JONES BUILDERS, INC.
141 South Harbor Drive
Noblesville, Indiana 46060
Phil Jones or Lnny - Office 773-4098)
ZELLER CONSTRUCTION. INC.
14291 Dove Drive
Carmel, Indiana 46033
(Bruce Zeller - Ofl'~ce 843.9394, Fax 843-7468)
OCTOBER,
THE TRAILS AT AVIAN GLEN
LOT PRICE LIST ~ SECTION ~
1996
LOT PRICE BUILDER
222
223
224
225
226
227
228
229
230
231
232
233
234
235
236
237
238
239
..~240
241
242
243
244
245
246
247
248
249
250
251
252
'2'53
254
255
256
257
259
260
261
262
263
264
265
46,500
48,000
48,500 BURKHARD CLOSED
48,500 BURKHARD CLOSED
48,000 HOFFMAN CLOSED
48,000 SAWYER CLOSED
48,000 JONES CLOSED
48,000 CAMBRIDGE CLOSED
46,000 MAR~O CLOSED
46,000 ZELLHR CLOSED
48,000 HASKETTE CLOSED
48,000 ROBINETTE CLOSED
48,000 CAMBRIDGE CLOSED
49,500 SCHNEIDER CLOSED
49,500 SWAMK CLOSED
46,500 MARBO CLOSED
49,500 ZELLER CLOSED
49,000 ROBINETTE CLOSED
48,500 OPe~",
48,500 HUSKY CLOSED
48,000 CHESAPEAKE CLOSED
48,000 ZELLER CLOSED
48,000 CAMBRIDGE CLOSED
46,500 JONES CLOSED
48,000 SCHNEIDER CLOSED
48,000 SAWYER CLOSED
48,000 JONES CLOSED
48,000 HUSKY CLOSED
48,500 SEDONA CLOSED
48,500 SCHNEIDER CLOSED
48,000 SEDONA CLOSED
47,000
46,000
47,500
48,000
48,000
48,500
49,000 BUHKHARD CLOSED
48,000 ZELLER CLOSED
48,000 CHESAPEAKE CLOSED-RS
48,000 HOFFMAN CLOSED
47,500 SWANK CLOSED
49,000 SWANK CLOSED
49,500 HUSKY CLOSED
TOTAL LOTS; 44
9 LOTS REMAINING
2
Av~ GL~
! I
.September l$, 1997
TIlE TRAILS AT AVIAN GLEN
LOT PRICE IJST- SECTIONS 8 & 9
L~f RI Price
222 46.500
223 48,000
253 47.000
254 46,000
255 47,500
256 48,000
257 48,000
258 48,500
.~eellon 9
~ Price Lot~ Price
287 49,000 341 .50,500
288 47,000 342 50,500
304 48,000 343 50,500
305 49,000 344 47,500
306 48,000 ~45 49,000
315 48,500 346 50,500
316 53,000 347 50,500
317 55,000 348 50,500
322 48,500 349 48,500
323 $0,500 350 48,500
329 48,500 355 48,500
331 $ 1,000 360 50,500
332 50,500 361 47,000
333 50.500 363 50,500
334 50,500 366 49,500
335 51,500 367 47,000
336 52,000 368 49.000
337 51,500 369 49.000 .
338 $2,000 370 49,000
339 51,500 371 49,000
340 50,000 372 49,000 . ~oo
* ~ subject Io chanse without notice.
**Pm~p~llvo pu~be~r~ will be ~lble ~ nil utility ~ ~ ~t f~
***AvI~ Tells A~ialel ~ 3~ wllh ll~ ~1 ~ae ~
September 15, 1997
THE TRAILS AT AVIAN GLEN
Lot Price List
Section 10
Lot No.
266
267.
260
269
270
271
272
273
274
275
276
277
278
279
200
281
282
283
284
285
206
289
Lot Price Lot No. Lot Price
51 000
55 000
55 000
55,000
55,000
55 000
55 000
55,000
55 000
55 000
55 000
51 000
51 000
51,000
51,000
5z6oo
51 000
51 000
51 000
51 000
52 000
50 000
29O
291
292
293
294
295
296
297
290
299
3OO
301
302
303
307
3O0
309
310
311
312
313
314
50~000
50 000
50~000
50 000
50,000
50 000
SO,O00
50 000
50,000
50,000
50,000
50,000
50,000
49,000
53,000
53,000
53,000
53000
54 000
54 000
55,000
52 000
THE TRAILS AT AVIAN GLEN
CUSTOM BUILDERS PRESENTLY BUILDING IN THE COMMUNITY, OR HAVE YOUR OWN
BUILDER APPROVED BY TtIE ARCHITECTURAL REVIEW COMMITTEE
I. BURKIIARD CUSTOM I[OMHS, INC. 9.
P.O. Box 1065
Camtel, Indiana 46032-6065
(John Burklmrd - Office 848-2853)
2. CAMBRIDGE CONSTRUCTION COMPANY 10.
11343 N. Gray Rnad
Cmrracl. Indiana 46032
(Dos~Blas Co(Ion -Officc ~43-0344. Mobile 44J-7912)
3. ANDERSON IIOME8 I 1.
13531 Six Poinls Road
Cannel, Indiana 46032
(Craig Anderaon - Office 846-0364)
4. HASKLfF¥ llOMES BY DESIGN, INC. 12.
12411 Towne Road
Carmel, Indiana 46032
(Michael and Belly Haskell - Off"mc 846-9636,
Mobile 431-7922)
5. IIOFFMAN ItOUSING, INC. 13.
817 Hickory Way
Nobleaville, Indiana 46060
(Sieve nad Chris tlolTman - Office 773-4867)
6. IIUSKY BUILDERS. INC. 14.
9952 Cedar Ridge Drlvc
Carmel. lmlinna 46032
(Glynn McFalridge (Linde) - Office 843-9111,
Fax 843-2995)
DAVID KLEIN
1286 West lO6111SIrcel
Carmel. Indiana 46032
(Dnvhl Klein - Office 846-9992)
JERRY ROBINI'-'ITE BUILDERS
19886 Slale Road 37 Nortb
Noblesville., Indiana 46060
(Jc~ and Belly Robinelle - Office 773-1235)
15.
JOIIN J. SCIINffiDER & CO., INC.
12505 Wesl Rend
Zionsville, Indiana 46077
(Jack Schneider - Office 844-4799)
MAR-BO DESIGNEK BUILDER, INC.,
7894 E. 1261h Slraet
Fishers. Indiana 46038
(Mary Boiler - Office 849-791 $)
PHIL JONF-.S BUILDERS, INC.
P.O. Box 1033
Noblesville. lndiann 46061
(Larry - Office 846-9919)
SAWYER BUILDING CORPOIb¥1'ION
3877 P-. 126T11Sircei
Cannel, Indiana 46033
(Me,shall tiowell - Office 5700225,
Mobile 443-7338)
SEDONA CUSTOM IlOMES
P.O. Box 309
Carmel, Indiana 46032-0309
(Bobble Pittnrd - Off"we 846-4496)
WILSON SWANK AND SONS
3825 East 106lb
Carmel, Indiana 46033
(Don Swank - Office 846-8687, Mobile 443-4433)
ZELLER CONSTRUCTION. INC.
14291 Dove Drive
C'nmtcl. Indinna 46033
(Bruce end Kefl~y Zeller - Office 843=9394,
Mobile 443-9328, Fax 843..9381)
I VI
The "Trails at Avian Glen" is the newest Carmel custom community to be
developed by Davis Development. The Trails at Avian Glen and the completed
sections of Avian Glen remain one of Carmers fastest selling communities. This
community is located in close proximity to shopping at 146~h and Keystone and
126~h and Gray Road. The schools for this community are Clay Junior High and
Carmel Senior High School. The elementary school is Prairie Trace Elementary
School which is a new school opening the fall of 1998 and is located on River'
Road North of 136~h Street.
This project has been named the Trails at Avian Glen as a bike trail is
proposed along the south side of the creek that Ilows through the community.
This trail will ultimately connect with trails to be constructed by other developers
to the east..in addition, the City of Carmel has considered closing portions of
Cherry Tree Road and utilizing them as a Bike Trail. This would provide
pedestrians with access north and south to Cherry Tree School, the Dad's Club,
Clay Jr. High and future neighborhood retail shops proposed at 131st Street and
Hazeldale Road. The portions being considered to be closed include the section
between the northern intersection of Coopers Hawk Drive to the intersection of
Killdeer Place. This portion of the trail would probably not be considered until
Hazeldale Road is completed south to 131st Street.
The amenities to be constructed for The Trails at Avian Glen will include a
swimming pool, bathhouse, playground and landscaped common areas. A
Homeowners Association has been formed for this new community to provide for
maintenance of the new pool and other amenities. The Homeowners Association
will consist of sections 8, 9 and 10 and future subdivision sections to be
constructed by Davis Development to be located east of Cherry Tree Road.
(87G-1444)
(844-5ii1)
H 0 M E S~ LLC
~iiJanuary 30, 1997
To: Residents and Builders
of The Trails of Avian Glen
Over the past several weeks, I have received several
phone calls from existing and potential purchasers at The
Trails of Avian Glen asking questions regarding the status
of construction of the swimming pool and bathhouse facility
to be located in Section 9 of the Trails of Avian Glen. The
construction of this facility is anticipated to start very
soon in anticipation of being completed and open by Memorial
Day in the spring of 1997. As soon as weather permits, the
construction of the foundation for the bathhouse will be
started.
The parking lot facility for this area was ~nstalled
with the streets when they were completed in November of
1996. The bridge across the ditch connecting section 8 with
section 9 will also be started in the next few months for an
early spring co~pletion.
Several residents have asked if they could utilize the
existing Avian Glen pool if The Trails of Avian Glen pool is
not open by thin Spring. The Avian Glen sections I through
7 are comprised of a separate homeowners association from
The Trails of Avian Glen, therefore, no homeowners located
outside of sections i through 7 will be able to utilize this
pool facility. The homeowners association for Avian Glen
sections I through 7 has been turned over to the residents
and they are in control of this facility.
I have also had several people asking about the size
and type of pool to be constructed. The proposed swimming
pool and bathhouse facility.will be identical to the pool
facility which is located in the existing sections of Avian
Glen. The po61 as proposed is 30' X 65' in length along
with a baby pool that is 15' X 15' in size. There will be
no diving board located at this facility due to liability
3755 I~;~t g2nd St]~et, Suite 120 Indianapolis, Indiana 46240 (317) 595-25¢}0
reasons. The pool will be 3' deep ~ t the end and 5' deep in
the middle a:~ is constructed in ~he existing Awi. an Glen
facility. Several people have expressed a desire to enlarge
the pool to 75' in length so that the pool can be ~sed for
local swim meets as 75' length is required for a standard
lap. ~We ihave looked~ ~t the pool location a,~d havre
,feasible and ~e a~e willing~to~=do~h-~--~i~
~iIl=~rt-i~tely be utilized by app~'oximately 245
S~%~iced wt~- 221 lots.
Hopefully this will answer some of the quest~,.ns and
concerns you may have regarding the amenity feature. If you
have any additional questions, please feel free to ,:ontact
our office at 595-2900.
Sincerely,
President of Der ~]opment
H 0 M E S, LLC
April 19, 1999
Mark Monroe
City of Carmel
Department of Community Development
One Civic Square
Carmel, Indiana 46032
RE: Hazel Dell Summit
Dear Mark:
I want to make you aware of the proposed separation of
homeowners association for the proposed Hazel Dell Summit. As
you know this is a joint petition between Davis Development, who
developed Trails at Avian Glen and Oakview Associates, which
developed Delaware Trace.
Both developers have constructed amenity areas in their
existing developments, which were proposed to be utilized by the
sections being developed in the Hazel Dell Summit community.
The Trails at Avian Glen Homeowner's Association will be
expanded to cover Sections I and II of Hazel Dell Summit.
Section III which will be developed by Oakview Associates will
be integrated into the homeowner's association of Delaware
Trace. This has been the intent from day one with both
developers to utilize these areas as part of the utilization of
the pool and amenity areas in the sections previously developed.
Davis has notified its homeowners through literature and
marketing brochures that these areas would be expanded and would
encompass the overall association. Enclosed please find a copy
of some marketing information regarding this issue.
Additionally I have enclosed a copy of the Declaration of
the Association for The Trails at Avian Glen land which shows
that this area has been incorporated into the Trails at Avian
Glen Association and also the Delaware Trace Association
document which defines this area as a future area also. I have
also enclosed an updated budget for the Trails at Avian Glen
Community Association, which shows the proposed annual dues, and
3755 East 82nd Street, Suite 120 Indianapolis, Indiana 46240 (317) 595 2800
how these dues would be used for the maintenance of the common
areas.
I believe there will be several people at the Public
meeting who are concerned with the expansion of their
associations and therefore, I wanted to get you the latest
information on this issue.
Should you have any questions after you review this
information please feel free to call me at 595-2903.
Sincerely,
White
President of Development
15-Jan-99
THE TRAILS AT AVIAN GLEN
COMMUNITY ASSOCIATION, INC.
Descdptlon
Lawn Care.'
Mowing (28~ $500/eech)
Fert./VVeed Control
Total:
Irrigation:
Mainteeance/Repalc
Tree & Shrub Care:
Mulching
Fart/Disease Control
Seasonal Flowers
Total:
Lake Malntonance:
Algae ContmllDye
Fountain Maintenance
Total:
Ughtlng/Fountain/Irrigatlon:
Common Eleotric/Watar:
Peel/Cabana
Open/Close
Chemicals
Cleaning Labor
MIs~ Repairs
Gas
Uloguard
Total:
Snow Removal (3' or more):
3 ~ $856/eech:
Accounting/Management Fees:
Postage/Stationery:
Legal Fees:
Property Taxes (Common Areas)
TOTAL EXPENSES:
PROPOSED BUDGET
Annual Budget
$14,000.00
$3,000.00
$17,000.00
$1,800.00
$2,500.00
$600.00
$2,500.00
$5,600.00
$2,200.00
$1,000.00
$3,200.00
$12,000.00
$5,000.00
$4,750.00
$2,000.00
$1,500.00
$2,000.00
$7,000.00
$22,250.00
$2,550.00
$2,500.00
$9,576.00
$500.00
$825.00
$2~000.00
$79,601.00
266 Unit Basis
12 Month Flsca!,
Per Ung/Month
$5.33
$0.56
$1.75
$1.00
$3.76
$6.97
$0.80
$0.78
$3.00
$0.18
$0.26
$0,83
$25.00
ool Size Per Lot Summary
Claybridge 218
Shelbourne Greene 330
Springmi11 Village 260
Austin Oaks 263
Prairie View 310
Foster Estates 303
Trail~at~vian
Glen/Emerald
.Crest 266
WaterStone 564
D~laware Trace/
C6~ons 228
Plum Creek 550
Avian Glen 221
Springmill Ponds 229
50 x 25 = 1,250
30 x 75 = 2,250
28.5 x 65 = 1,853
75 x 26.5 - 1,988
32 x 75 = 2,400
30 x 82 = 2,460
30 x 75 - 2,250
(2) - 4,860
26.5 x 75 = 1,988
80 x 60 ~ 4,800
65 x 30 ~ 1,950
30 x 75 - 2,250
5.7
6.8
7.1
7.5
7.7
8.1
8.5
8.6
8.7
8.7
8.8
9.8
9551394
i D~CLARATION OF COVENANTS. CONDITION~ AND RESTRICTIONS
~ ~ TH~ TRAILS AT AVIAN GLEN
THIS DECLARATION is made this ~ day of .'~,,o.~,,,O,o'. 1995 by Davis Homes,
~ ~ L_L:x~, an Indiana limited liability company (the "Developer"). '
Recitals
I. Developer is the owner of the real eststo wh{ch is described in Exhibit "A" nttsched
hereto and made a part hereof(the "Initial Real Estate").
2. Developer intends to subdivide the lnltinl Real Estate into residential lots.
3. Before subdividing the Initial Real Estate, Developer desires to subject the Initial Real
Estate to certain tights, prlv{leges, covenants, conditions, restrictions, easements, assessments,
charges and Hens for the purpose of preserving and protecting the value and desirsbility of the
Initial Real Estate for the benefit ofesch owner of any part thereof.
4. Developer further desires to create an organization to which shall be delegated and
assigned the powers of maintaining and administering the common areas and certain other arena of
the Real Estate and of administering and enforcing the covenants and restfictions contained in this
Declaration and the subdivision plats of the Real Estate ns hercafter recorded in the office of the
Renorder of Hamilton County, Indiana sod of collecting and disbursing assessments and charges
as herein provided.
5. Developer may from ilium to time subject additional real estate located within the tract
edjacant to the Initial Real Estate to the provisions of this Declaration (the Ina{al Real Estate,
t6gother with any such addition, ns and when the same becomes subject to the provisions of this
Declaration ns herein provided, is hereinafter refen'ed to as the "Real Estate").
NOW, THEREFORE, Developer hereby declares that the Real Estete is and shall be
acquired, held, transferred, sold. hypothsonted, lensed, rented, improved, used and occupied
subject to the following previsions, agreements, covenants, conditions, restrictions, ense~ents.
assessments, charges and liens, each of which shall mn with the land and be binding upon. and
inure to the benefit of. Developer and any other person or entity hereafter acquiring or having any
fight, title or interest in or to the Real Estate or any part thereof.
ARTICLE I
pEFINITIONS
The following terms, when used in this Declaration with initial capital letters, shall have
the following respective meanings:
1.1 "Assoniation" means the Trnils mt Avian Glen Community Association. Inc., an
Indiana not-for-profit corporation, which Developer has caused to be incorporated, and its
successors and assigns.
1.2 "Architectural Review Committee" means the architectural review committee
established pursuant to Article VI, paralpaph 6.1, of this Declaration.
1.3 "Common Areas" means (i) nil portions of the Rcal Estate shown on any Pint of a part
of the Real Estate ns a "Common Area" ~)r which are otherwise not located in Lots nnd arm not
dedicated to the public and (ii) all faa'lltiea, structures, buildings, improvements and personal
property owned or leased by the Association from time to time. Common areas may be located
within a publin fight-of-way.
1.4 "Common Expenses" means 0) expenses ofend in connection with the maintenance,
repair or replacement of the Common Areas and the performance of the responsibilities and duties
of the Association, including without limitation oxpensns for the improv~rnant, maintenance or
repair ofthe improvements, lawn, foliage and isndscapin~ located on a Drainage. Utility or Sewer
Easement or on a Landscape Easement to the extent the A.~o~ntion deems it nece~u~y to
maintain such easement, (ii) expenses of end in connection with the maintenance, relmir or
continuation of the drainage fncilitias located within and upon the Drainage. Utility or Sewer
Easements. (iii) all judgments, liens end vnlld claims against the Association, (iv) all expenses
incurred to procure liability, hazard and any other insurance with respect to the Common Areas
and (v) all expenses incurred in the administration of the Association.
1.5 "Developer' means Davis Homes, LIX~, en lndlaen limited liability company, end any
successors or assigns whom it deaignatea in one or more valtten recorded instruments to heve the
rights of Developer hereunder. ·
1.6 "Development Period' means the period of time commencing with the date of
recordation of this Denlaration and ending on the date Developer or its aiTdintes no Ion~'r own
any Lot within the Real Estate, but in no event shall the Development Period extend beyond the
date ten (10) years after the date this Declaration is recorded.
1,7 "Landscape Easements' means those areas ofgronnd so designated on a Plat of any
part or'the Real Estate.
1.8 "Lake Easements" means those areas ofgronnd so designated on a Plat of any part of
the Real Estate.
1.9 "Lot" means any parcel of lend shown and identified as a lot on a Plat of any part of
the Real Estate.
1.10 "Mortgagee" meens tho holder of a recorded first mortgage Ilea on any LOt or
Residence Unit.
1.11 "Owner" means the record owner, whether one or more persons or entities, of
fee-simple title to any LOt, including contract sellers, but excluding those having such interest
merely as security for the performance of en obligation unlnss specifically indicated to the
comrary. The term Owner as used herein shall include Developer so long as Developer shall own
any Lot in the Real Estate.
1.12 "Plat" means a duly approved final pint of any part of the Real Estate as hereafter
recorded in the offlc~ of the Recorder of Hamilton County. Indiana.
1.13 'Residence Unit" means any single family home in the subdivision.
!. 14 "Regulated Drainage Easements" means those areas of ground so designated on a
Plat ofeny part of the Real Estate.
1.15 'Utility, Drainage or Sanitary Sewer Easements' means those areas of gruond so
designated on a Plat ofeny part ofthe Real Estate.
ARTICLE
APPLICABILITY
All Owners, their tenants, guests, invitees and mortgageas, and any other person using or
occupying a Lot or any other part of the Real Estate shell be subject to end shall obser,~ and
comply with the covenants, conditions, restrictions, tcnna and provisions set forth in this
Declaration and any rules and ~gulatlons adopted by the Association as herein provided, as the
same may be amended from time to time.
The Owner of any Residence Unit (i) by neceptnnce of a deed conveying title thereto or
the execution cfa contract for the perchase thereof, whether imm the Developer or its affiliates
or nny builder or any subsequent Owner of the Residence Unit. or (ii) by the act of occupancy of
the Residence Unit, shall conclusively be deemed to have accepted such deed. executed such
contract or undertaken such occupancy subject to the covenants, conditions, restrictions, terms
and provisions of this Declaration. By acceptance of a deed, execution of a contract or
undertaking of such occupancy, each Owner covenants for himself, his heirs, personni
repre~mtattves, suecessura and assigns, with Developer and the other Owners from time to time,
to keep, observe, comply with and perform the covenants, conditions, restfictinns, tenna and
provisions ofthis Declaration.
ARTICLE Ill
PROPERTY RIGHTS
3.1 ~wn~fs' Easement of' Eniownant of' Common Areas. Developer hereby declares.
creates and grams a non-exclusive easement in favor of each Owner for the usu enid enjoyment of
the Common Areas. Such easement shall mn with nmi bo appurtenant to each Residence Unit.
subject to the following provisions: j
(i) the right of the Association to charge reasonable admission and other fees for
the use of'the recreationnl facilities, if any, situated upon the Common Areas'_
(ii) the r~ht of the Association to fine any Owner or make a special assessment
against any Residence Unit or Lot in the event a person permitted to use the Common Areas by
the Owner of/he Residence Unit violates any rules or regulations of the Association as long as
such rules and regulations are applied on a rnaso~able and nondiscriminatory basis;
(iii) the right of'the Association to make reasonable regular assessments for use of
the Common Areas;
(iv) the right of the Association to dedicate or transfer ail or any part of the
Common Areas or to ~rant easements to any public agency, enthotity or utility for such purposes
and subject to such conditions as may be set forth in the instrument of dedication or transfer,
(v) the right of tho Association to eni'orce collection of nny fines or regular or
special assessmems through tho imposition cfa lien pursuant to paragraph 7.7;
(vi) the fights of Devel°per as provided in this Declaration or in any Plat of any
part of the Real Estate;
(vii) the terms end provisions ofthls Declaration;
(viii) the ri§hr,of the Assuelation to convey and transfer without consideration the
Common Area shown as "Bl~ck: B.C." between Lots 258 end 259 to the owner of the abutting
prope~y for use by such owner as a privatn permanent driveway access between such owner's
existing farmhouse and Coopers Hawk Drive.
(ix) the easements raserv~ elsewhere in this Declaration and in any Plat of any
part of the Real Estate; and ~
(x) the right of the Association to limit the use of Common Areas in a reasonable
nondiscriminatory manner for the common scad.
3.2 Permissive Us~. Any Owner may permit his or her family members, guests, tenants or
contract purchasers who reside in the Residence Unit to use his or her riSht of use and enjoyment
of the Common Areas. Such permlssiv~ use shall be sub.~ct to tho By-Laws of~e Association
and any reasonable nondisedm~nstory roles and regulations promulgated by the Association from
time to tim0.
3.3 Conveyance et'Common Areas. Developer may at any time and ~rom time to time
convey ail of its right, title and interest in and to any ofthe Common Areas to the Association by
quitclaim deed, and such Common Areas so conveyed shall then he the proper~y of the
Assoclation.
ARTICLE IV
USE RESTRICTIONS
4.1 Lakes. There shall be no swimming, skating, boating or fishing in or on any lake,
pond, creek or stream on the Real Estate. The Association may promulgate roles and regulations
with respect to the pennltted uses, if any, of the lakes or other bodies of water on the Real
Estate.
4.2 [njtin! Sale orr Units. All initial sales of Residence Units by the Developer or any
builder or any at~liste of Developer or any builder shall be to owner.occupants; provided,
however, this provision shall not apply to · mortgagee or its successor who acquires the
development or a potlion thereof or any Residence Unit through foreclosure or sale in lien
thereo£ Il'any owner-occupant desi~s to lease his unit, such rental shall be pursuant to · written
lease with · minimum term clone year and such lease shall expressly provide that the leasee shall
be subject to ell roles and regulations of the Association.
4.3 of s. The Common Areas shall be used only for recreational
4.4 ~t Access. All Lots shell be accessed from the interior streets oftbe Subdivision.
No direct access is permitted to any Lot via East 131st Street or Cherty Tree Avenue.
4.5 Other Use Restrictions Contained in Plat Covenants and Restrictions. The Pint
Covenants and Restrictions relating to the Real Estate contain additional restrictions on the use et'
the Lots in the subdivision, including without limitntlon prohibitions against commercial use,
detached eccesaory buildings and nuisances; restrictions relating to the use of Landscape
Easements, Lake Easements, and Utility, Drainage and Sanitary Sewer Easements; and
restrictions relating to temporary stroctures, vehicle parking, signs, mailboxes, gmbege and refuse
disposal, storage tanks, water supply and sewage systems, ditches and swales, driveways, antenna
and satellite dishes, awnings, fencing, swimming pools, solar panels and outside lighting. Such
prohibitions and restrictions contained in the Plat Covenants and Restrictions are hereby
incorpornted by reference ns though fully set forth herein.
AgSOCIATION
5,1 Membemhin. Each Owner, automatically upon becoming an Owner, shall be and
become a member ortho Association and shall rennin a member of'the Assoc'etion so long ns he
or she owns the LOt.
5.2 Classes of Membership and Vote. The Association shall have two (2) classes of
membership, ns follows:
(i) Class A Members. Class A members shall be all Owners other than Developer
(unless Class B membership has been converted to Class A membership as provided in the
following subparagraph (ii), in which ease Developer shall then be a Class A member). Each
Class A member shall be entitled to one (1) vote.
(ii) Class B Member. The Class B member shall bo the Developer. The Class B
member shall be entitled to three (3) votes for each Lot owned by Developer. The Class B
membership shall cease nad terminate nnd be converted to Class A membership upon the
"Applicable Date" (as defined ia paragraph 5.3).
5,3 Applicable Date. As used herein, the term "Applicable Date" shall mean the date when
the total votes outstanding in the Class A membership is equal to the total votes outstanding in the
Class B membership.
5.4 i I ' . Where more than one person or entity constitutes tho
Owner o/`a Lot. nil such persons or entities shall be members of the Association, but tho single
vote in respect o/`such Lot shall bo exercised as the persons or entities holding nn interest in such
Lot determine among themselves. In no event shall more then one person exercise a Lot's vote
under paragraph 5.2. No Lot's vote shall be split.
5.5 ~. The me, bets o/`the Association shall elect a Board o/`Directors
of'the Association ns prescribed by tho Association's A~tJcles o/'Incorporation and By-Laws. The
13uard o/`Dire~tors o£the Association shall tonnage the etTnirs oFthe Association.
.5.6 f si n n . No contract or agreement/'or prot'essional mnnngement o/'
the Association, nor nay contract between Developer and the Association, shall be for a term in
exea~ o/`thres (3) years. Any such agreement or contract shall provide/'or termination by either
party with or without cause, without any tennlnatlon penalty, on written notice o/` ninety (90)
days or less.
5.7 Resoonslbil~t~es o/`the Association. The rasponslbil~tles ofthe Associetlon include, but
shell not bo limited to:
(i) Ma~nteuance of the Common Areas including nay and all improvements thereon
in good repair as the Association deems necesse~ or appropriate.
(ii) Installation and replacement of' any and nil improvements, signs, lawn,/`ollaga
and landseeplag in and upon the Common Areas or Lake Easements or Landscape Easements as
thc Association deems necessary or appropriate.
(iii) Maintenance, repair nad replacement o/`nay private street signs.
(iv) Replacement or the dra'maga system in and upon the Common Areas as the
Association deems necessary or appropriate and the maintenance of any drainage system installed
in or upon the Common Areas by Developer or the Association+ Nothing herein shall relieve or
replace the obligation of the Owner. including any builder, of a Lot subject to a Drainage
Easement to keep the portion of the drainage system nad Drainage Easement on his Lot free from
obsm~ctions so that the storm water drainage will bo unimpeded.
(v) Maintenance o/`lake water so as not to create stagnant or polluted waters
affecting the health and wci/'are oF tim community through reci~'ulatlon o/` accomulatnd water or
chemical treatment.
(vi) Procuring and maintaining for the benefit o/` tho Association, its officers and
Bom'd of Directors and the Owners, the insurance coverage required under this Declaration end
such other insurance as the Board of Directors deems necessap/or advisable.
(vii) Payment of tnxe~, if any, assessed against and layable with respect to the
Common Areas.
(viii) Assessment and collection ~rom the Owners of the Common Eapeases.
(ix) Performing or contracting for such safvicna as management, snow removal,
Common Area maintenance, trash removal or other services as the Association deems necessary
or advisable.
(x) Enforcing the roles and regulations ortho Association and the requirements of
this Declaration and any applicable zoning covenants, in each ease, as tho Association deems
necessary or advisable.
5.8 Powers of the Association. Thc Association may adopt, amend, or rescind, reasonable
roles and regulations (not inconsistent with the provisions of this Denleration) governing the use
end enjoyment of the Common Areas and the manngement and administration of the Association,
ns the Association deems necessary or advisable. The role~ and regulations promulgated by the
Association may provide for rnasonnble interest and late charges on past due installments of any
regular or special assessments or other oherges a~,,ainst nny Residence Unit or Lot. The
Association shall furnish or make copies available of its roles and regulations to the Owne~ pr/or
to the t/me when the rules and regulations become etT~t ire.
5.9 Com_nensation. No director or officer ofthe Association shall receive compensation
for his or her services as such director or officer except to tho extent expressly autbor/zed by a
major/ty vote of the Owners present at a duly constituted meeting of the Assoniation members.
5.10 Non-Liability of Directors and Officers. The directors and officers ofthe Association
shall not be liable to the Owners or eny other persons for any error or mistake of judgment in
carrying out their duties and responsibilities as directors or officers of the Association, except for
their own individual willful misconduct or gross negllgence. It is intended that the directors and
officers of the Association shall have no personal liability with respect to any contract made by
them on behalf of the Association except in their capacity as Owners.
5.11 Indemnity of Direntors and Officers. The Association shall indenmi~A hold harmless
and defend any person, his or her heirs, assigns and legal representatives (collectively, the
"lndemniten") made or threatened to be made a party to any action, suit or proceeding by mason
of the fact that he or she is or was n director or officer of fha Association, against all costs end
expenses, including attorneys fees, sctuelly and rnasonnbly incurred by thc lndemnitee in
connection with tho defense of such action, suit or proceeding, or in connection with eny nppenl
thereof, except in relation to matters as to which it shall he adjudged in such action, suit or
proceeding that such lndemniten is guilty of gross negligence or willful misconduct in the
performance of his or her duties. The Association shall also reimburse nny such lndemnltee for
the reasonable costs of settlement of or for any judgment rendered in any action, suit or
proceeding, unless it shall be adjudged in such notion, suit or proceeding thet such Indemnitee wes
guilty ofgross negligence or willful misconduct. In making such findings end notwithstanding the
adjudication in any action, suit or proceeding against an Indemnlten, no director or officer shell be
considered or deemed to be guilty of or liable for gross negligence or willful misconduct in the
performance of his or her duties where, acting in good faith, such director of officer relied on the
books and records of the Assoniation or statements or advice made by or prepared by any
managing agent of the Association or eny director or officer of the Association, or any
accountant, attorney or other person or firm employed or retained by the Assoniation to render
advice or service, unless such director or officer had actual knowledge of the falsity or
incorrectness thereot~ nor shall a director he deemed guilty of gross negligence or willful
misconduct by virtue ofthe fact that he or she failed or neglected to attend a meeting or meetings
of the Board of Directors of the Assoeiation. The costs nnd expenses incurred by any lndemnlten
in defending any action, suit or pro~eeding may be peid by the Association in advance of the final
disposition of such action, suit or proceeding upon receipt of es undertaking by or on behelf of
the Indenmitee to repay the amount paid by the Association if it shall ultimately be determined
that the lndemnitee is not entitled to indemnification or ~imbursement as provided in this
paragraph 5.11.
5.12 Bond. The Board ofDirectora ofthe Association may provide surety bonds and may
require tho managing agent of tho A~:~dation (if eny), tho treasurer of the Asaoeiation and such
other officers as the Board of Directors deems nece~w/, to provide so~ty bonds, indemnifying
the Association against larceny, theft, embezzlement, forgery, misappropriation, wrongfid
abstraction, willful misapplication and other acts of' theft, fraud or dishonesty in such sums and
with such sureties as may be approved by the Board of Directors, and any such bond nay
specifically include protection for any insurance proennds received for any reason by the Board of
Directors. The expense of any such bonds shall bo a Common Expense.
ARCTIlTECTURAL REVIEW COMMITTEE
6.1 Creation. There shall be, and hereby is, created and established an Architectural
Review Committee to perform the functions provided for herein. At all times during the Develop-
meat Period, the Architectural Review Committee shall consist of three (3) members appointed,
fi.om time to time, by Developer and who shall be subject to removal by Developer at any time
with or without cause. Aflar the end of the Development Period, the Architectural Review
Committee shall be n standing committee of the Association, consisting of three (3) persons
appointed, from time to time, by the Board of Directors of the Association. The three persons
appointed by the Board of Directors to the Architectural Review Committee shall consist of
Owners of Lots. The Board of Directors may at any time after the end of the Development
Period remove any member of'the Architectural Review Committee at any time upon a majority
vote of the members ofthe Board of Directors.
6.2 Pu _rposes and Powers of Architectural Review Committee. The Architectural Review
Committee shall review and approve the design, nppenrenee and location of nil residences,
buildings, stroetures or any other improvements placed by any person, including any builder, on
any Lot within the community, and tho installation end removal of any trees, bushes, shrubbery
and other landscaping on any Lot within the community, in such a manner as to preserve and
enhance the value and desirability ct'the Real Estate and to preserve the harmonious relationship
among structures ncd the netural vegetation and topography.
(i) In General. No residence, building, structure, antenna, walkway, fence, deck,
pool, tennis court, wall, patio or other improvement of any type or kind shall be erected,
constructed, placed or altered on any Lot and no change shall be made in the exterior material or
color of any Residence Unit or accessory building located on any Lot without the prior written
approval of the Architectural Review Committee. Such approval may be obtained only after
written application has been made to the Architectural Review Committee by the Owner of the
Lot requesting authorization from the Ar~hitectund Review Committee. Such written application
shall be in the manner and form prescribed from time to time by the Architectural Review
Committee and, in the case of construction or placement of any improvement, shell be
accompanied by two (2) complete sets of plans and specifications for any such proposed
construction or improvement. Such plans shall include plot plans showing the location of all im-
provements existing upon the Lot nnd the ]oration of the improvement proposed to be
constructed or placed upon the Lot, each properly and clearly desi§nated. Such plans and
specifications shall set forth the color and composition of all exterior meterials proposed to be
used and any proposed landscaping, togethar with eny other material or infornmtlon which the
Architectural Review Committee may reasonably require. Unless otherwise permitted by the
Architectural Review Committee. plot plans shall be prepared by either a ragistered Innd surveyor,
engineer or architect. Pict plans submitted for the Improvement Location Permit shall bear the
stemp or signature ofthe Architectural Review Conunltten acknowledging the approval thereof.
(ii) Power of Diseporoval. The Architectursl Review Committee may refuse to
approve any application made to it as required under paragraph 6.2 (i) above (a "Requested
Change") when:
(a) The plans, specifications, drawings or other materials submitted are
inadequate or incomplete, or show the Requested Change to be in violation of any
restrictions in this Declaration or in a Plat ot'eny part o~'tha Real Estate;
:!:"i '.'.;'~ .'.:'~,"...~:~:~:';:."..'; (b) The design or color scheme of'n Requested Chang..e ,s not m harmo y
'~':.~!:.:.:.'i.??~i::il/i~?:.'.!i with the general surroundings of the Lot or with the adjacent buildings or
?'. i; :;':!~ ;'~'!:::i: i':~:,~':',.:.?~:: structures; or
-: . ...'...=::;..:./..-.... = (c) The Requested Changu, or nm/ part thereof, m the opinion of the
'.': :::~:.':i'; ~!.!:.~ :? ~'.' Architectural Review Committee, would not prese~e or enhance the value and
:.':' :-.i'?:':i..:~i~:~::'.~::.::::.i:i~ desirability of' the Real Estate or would otherwise be contrary to the interests,
:i": :::i??;i~:;.i':~i!!::!:'il welt'are or rights ct'the Developer or any other Owner.
I Re ,ew Co.mitten. ,om t,ma,o
time, may promulgate, amend or modiF/additional rules nnd regulations o1' building policies or
procedures ns it may deem necessary or desirable to guide Owners as to the requirements of' the
Architectural Review Committee for the submission ami approvel of' items to it. Such rules nnd
~gulations or building policies or procedures may set forth additional requirements to those set
forth in this Declaration or a Plat of any part of' the Real Estate, ns long as the same are not
inconsistent with this Declaration or such Plat(s).
6.3 ~ties of Architectural Review Committee. If the Architectural Review Committee
does not approve a Requested Change within forty-five (45) days after all required in~ormatlon
on tho Requested Change shall have been submitted to it, then such Requested Change shall be
deemed denied. One copy of' submitted material shall be retained by the Architectural Review
Committee t'or its permanent files.
6.4 Liability of' the Architectural Review Committee. Neither the Architectural Review
Committee, the Association, the Developer nor any ngent or member ct' any of' the foregoing,
shall bo responsible in any way for am/defects in any plans, specifications or other mnterlals
submitted to it, nor for any detects in any work done according thereto or for nny decision made
by it unless made in bad t'alt h or by willfiJI misconduct.
6.5 lns_nection. The Aroh]tecmral Rovlew Committee or its rep~-sentntive may, but shall
not be required to, inspect work being performed to essurn compliance with this Declaration and
the nuterials submitted to it pursuant to this Aflicle 'VI and nuy J'equire any work not consistent
with the approved Requested Change, or not approved, to be stopped and removed.
ASSESSMENTS
7.1 purpose of Assessments. The purpose of Regular nmi Special Assessments is to
provide ~unds to maintain nnd improve tho Common Areas nmi related facilities for tho benefit of'
the Owners, nnd the same shall be levied for the following purposes: (1) to promote the health,
safety ami welfare of' the residents occupying the Real Estate. (ii) for the improvement,
maintenance end repair of' the Common Areas, the improvements, lawn f'ollego and landscaping
within end upon the Common Areas, Landscape Easements, Drainage, Utility or Sanitary Sewer
Easements, Regulated Drainage Easements or Lake Easements and the drainage system. (iii) for
the parfornmnce of' the responsibilities and duties and satisfaction of' the obligations of' the
Association and (iv) for such other purposes as ara reasonably necessary or specifically provided
herein. A portion of'the Rnguler Assessment may be set asido or otherwise allocated in n reserve
~umi for the purpose of'providing repair and replacement of'ney capital improvements which the
Association is required to maintain. The Regular and Special Assessments levied by the
Association shall be uniform for all Lots and Residence Units within the Subdivision.
7.2 Reeular Assessments. The Board of Dkectors of fha Association shall have the right,
powe~ and authority, without any vote o{'tha members oftha Association, to fix from time to time
the Rngulat Assessment against each Residence Unit at any amount not in excess of'tha Maximum
Regular Assessment as follows:
(i) Until December 3 l, 1995, the Maximum Regular Assessment on any Residence
Unit for any calendar year shall not exceed Four Hundred, Eighty Dollars ($480.00).
8
(ii) From and after December 31, 1995, the Maximum Regular Assessment on any
Residence Unit for any calendar year may he increased by not more than gixty Dollars ($60.00)
per year above the Regular Asse~smant for the previous calendar year without a vote of the
members of the Association.
(iii) From and after December 31, 1995, the Board of Directors of the Association
may fix the Regular Assessment at an amount in excess of the maximum amount specified in
subparagraph (ii) above only with the approval of n majority of those members of each class of'
members of the Association who cast votes in person or by proxy at a meeting of the memhers of
the Association duly called and held for such purpose.
7.3 S_oecinl Assessments. In addition to Regular Assessments. tho Board of Directors of
the Association may make Special Assessments against each Residence Unit, for the purpose of
defraying, in whole or in part, the cost of constructlng, reconstructing, repairing or replacing eny
capital improvement which the Association is required to maintain or the cost of special
nmintenance end repaim or to recover any deficits (whether from oparations or nny other loss)
which the Association may from time incur, but only with the assent cfa majority of the members
of each class of members of the Association who cast votes in perann or by proxy at a duly
constituted meeting of the members of the Association called for such purposu.
7.4 NO A~essment analnst Developer DUfinu the Development Period. Neither the
Developer nor any affiliated entity shall he assessed any portion of any Regular or Special
Assessment during the Development Period.
7.5 Date o£Commcucement of Renulnr or S~ecial Assessments: Due Dates. The Regular
Assessment or Special Asse~ment, if any, shall commenca as to each Residence Unit on the first
dey of the first calendar month following tho first conveyance of the related Lot to an Owner,
provided that in the case of the conveyance by Developer to any builder, ankh commencement
shall occur on the first day of the sinth calendar month following the first eonveynoce of the Lot
to the builder.
The Board of Directors of the Association shall fix the amount of the Regular Assessment
at least thirty (30) days in advance of each enanel assessment period. Written notice of the
Regular Assessment, any Special Assessments and such other assessment notlce~ as the Board of
Directors shall deem appropriate shall be sent to eech Owner subject thereto. The installment
periods and due dates for ell assessments shall be established by the Board of Directors. The
Board of Directors may provide for reasonable interest and late charges on past due instellments
of essessments.
7.6 Failure et'Owner to Pay Assessments.
(1) No Owner may exempt himself from paying Regular Assessments and Special
Assessments due to such Owner's nonuse of the Common Arena or abandonment of the Residence
Unit or Lot belonging to such Owner. If any Owner shall fail, refuse or neglect to make any
payment of any assessment (or periodic installment of an assessment, if appllcable) when due. the
lien for such assessment (ns deserlhed in paragraph 7.7 below) may be foreclosed by the Board of
Directors et' the Association for and on behalf of the Associetion as a mortgage on real property
or ns otherwise provided by law. In any action to foreclose the llen for any assessment, the
Owner and nny occupant of the Residence Unit shell he jointly and severally liable for the payment
to the Asancintion of reasonable rentel for such Residence Unit, and the Board of Directors shall
be entitled to the appointment of a receiver for the purpose of preserving the Residence Unit or
Lot, and to collect the rentals and other profits therefrom for the benefit ofthe Asso~iation to be
applied to the unpaid assessments. The Board of Directors of the Association, at its option, mey
in the alterontlve bring suit to recover a money judgment for nny unpaid esses~nent without
foreclosing or waiving the lien securing the sums. In any action to recover an assessment,
whether by foreclosure or otha~fise, the Board of Directors of the Association, for and on hehelf
of the Association, shall he entitled to recover from the Owner of the respective Residence Unit
9
or Lot, costs end expenses of such action incurred (including but not limited to attorneys fees)
and interest from the date such assessments were due until paid.
(ii) Notwithstanding anything contained in this paragraph 7.6 or elsewhere in this
Declaration, any sale or transfer ora Residence Unit or Lot to a Mortgagee pursuant to a foreclo-
sure ofits raortgagc or conveyance in lieu thereo~ or a conveyance to any person at a public sale
in the manner provided by law with respect to mortgage foreclosures, shall extinguish the lien or
any unpaid assessments (or periodic installments, il' applicable) which became due prior to such
sate, transfer or conveyance; nrovided, however, that the extinguishment of such Ilea shail not
relieve the prior Owner from personal liability therel'or. No such sale, transfur or conveyance shell
relieve the Residence Unit, or the purchaser timeof, at such l`oreclosure sale, or the grantee in the
event of conveynace in lieu thereof, from liability for any assessments (or periodic installments
such assessments, it'applicable) there, alter becon~eg due or l`rom the lien therefor.
7.7 Creation of Lien and Personal Obli_nation. Each Owner ora Residence Unit or Lot by
acceptance for itself and related entities ora deed therefor, whether or not it shell be so expressed
in such deed, is deemed to covenant and agree to pay to the Association l`or his obligation for (i)
regular assessments for Common Expenses ("Regular Assessments") and (ii) special assessments
for capital improvements and operating deficits and for special maintenance and repairs (mSpeciai
Assassmenta"). Such assessments shall be established, ahail coreraence upon such dates and shell
be collected as herein provided. All such assessments, together with interest, costs of collection
and attorneys' fees, shall he a continuing Ilea upon the Residence Unit or Lot against which
such assessment is made prior to all other liens except only (il tax liens on any Residence Unit or
Lot in favor ol` any unit ol` government or special taxing district and (ii) the Ilea ol` any first
mortgage ol' record. Each such assessment, together with interest, costs ol' collection and
attorneys' fees, shall also be the personal obligation of the Owner ol' the Residence Unit at the
time such assessment became due and payable. Where the Owner constitutes raore than one
person, the liability of such persons shell be joint and suveraL The personal obligation for
daiinquent assessments (as distinguished l'rom the lien upon the Residence Unit) shall not pass to
such Owners successura in title unless expressly assumed by them. The Association, upon
request nfs proposed Mortgagee or proposed purchase' bev~.ng a contractual right to purehesea
Residence Unit, shall furnish to such Mortgafiee or purchaser a statement setting forth the amount
ot'any unpaid Regular or Special Assessments or other charges against the Residence Unit or Lot.
Such statement shall be binding upon the Association as of the date of such statement.
7.8 Exnanse Incurred to Clear Dralnene. Utillw or Sewer Easement Deemed a Soncial
Asaessmeet. As provided in the Plat Covenants relating to the Real Estate, the Owner ofeny Lot
subject to a Drainage, Utility or Sanitary Sewer Easement, or Regulated Drainage Easement
including any builder, shell be required to keep tho portion ol' said Drainage, Utility or Sanitary
Sewer Easement or Regulated Drainage Easement on his Lot free from obstrocfions so that the
storm water drainage will not be impeded end will not be changed or altered without a permit
l`rom the applicable local governmental authority and prior written approval ol`the Dv-veloper and
the Association. Also, no structures or improvements, including without limitation decks, patios,
pools, l`coces, waikweys or landscaping of nay kind, shell be erected or maintained upon said
ensemnats, and any such structure or improvement so erected shall, at Developer's or the
Association's written request, be removed by the Owner at the Owner's solo cost and expense, If,
within thirty (30) days after the date ol` such written request, such Owner shall not have
commenced nnd diligently and continuously etTncted the removal ol' nny obstruction of storm
water drainage or any prohibited strocture or improvement, Developer or the Association may
enter upon the Lot and cause such obstruction, structure or improvement to be removed so that
the Drainage Utility and Senltary Sewer Easement or Regulated Drainage Easement is returned to
its original designed condition. In such event, Developer or the ~iatlon shall be entitled to
recover the ~ull cost of such work from tim off`ending Owner and such amount shall be deemed a
Special Assessment against the Lot owned by such Owner which, if unpaid, shall constitute a Ilea
nlpdnst such Lot and may be collected by the Association pursuant to this Article 7 in the same
manner as nay other Regular Assessment or Special Assessment may be collected.
IO
INSURANCE
8.1 Casualty Insurance. The Aseoclmion shall purchase and maintain fire and extended
coverage insurance in an amount equal to the full insurable replacement cost of any improvements
owned by tho Association. lethe Association can obtain such coverage for a reasoanblo amount,
it shall also obtain 'all risk coverage'. The Association shall also insure any other property,
whether real or personal, owned by the Association, against loss or damage by fire and such other
hazards as the Association may deem desirable. Such insurance policy shall name the Association
as the insured. The insurance policy or policies shall, it'practicable, contain provisions that the
insurer (i) waives its rights to subrogation as to any claim against the Association, its Board of
Directors, officers, agents and employees, any committee ct' the Association or of the Board of
Directors and all Owners and their respective agents and guests and (ii) waives any det'ense to
payment based on invalidity arising from the acts of the insured. Insurance proceeds shall be
used by the Association For the repair or replacement oFthe property For which the insurance was
canled.
8.2 Liability Insurance. The Association shall also purchase and maintain a master
comprehensive public liability insurance policy in such amount or amounts as the Board of
Directors shall deem appropriate from time to time, but in any event with a minimum combined
limit of Onu Million Dollars ($1,000,000) pet occurrence. Such comprehensive public liability
insurance shall cover all of the Common Areas and shall inure to the benefit of the Association, its
Board oFDireetors, officers, agents and employees, any committee of the Association or ct' the
Board of Direntors, ail persons acting or who may como to act as agents or employees of any of
the foregoing with respect to tho Reel Estate and the Developer.
8.3 Other Insurance. The Association shall also purchase and maintain any other
insoranue required by law to be maintained, including bet not limited to workem compansetlon
and occupational disease insurance, and such other insorance as the Bcor~ of Directors shall from
time to time deem necessm7, advisable or appropriate, including but not limited to officers' and
directors' liability insurance.
8.4 Miscellaneous. The premiums for the insurance described above shall be paid by the
Association as pati ofthe Common Expenses.
MAINTENANCE
9.1 Maintenance ct'Lots and Improvements. Except to the extent such maintenance shall
be the responsibility of the Association under any oFthe foragolng provisions of this Declaration,
it shall be the duty of the Owner of each Lot, including any builder during the building process, to
keep the grass on the Lot properly cut and keep the Lot, including any Drainage, Utility or
Sanitat7 Sewer Easements or Regulated Drainage Easements located on the Lot, free of weeds,
trash or coastroatlon debris and otherwise neat and attractive in appearance, inelndlng, without
limitation, the proper maintenance ofthe exterior cluny structures on such Lot. Ifthe Owner of
any Lot fails to do so in a manner reasonably satisfactory to the Association, the Assoc'mtion shall
have the right (but not the obligation), through its agents, employees and contractors, to enter
upon said Lot and to clean, repair, maintain or restore the Lot, as the ease may be, and the
exterior of the improvements erected thereon. The cost orany such work shall be and constitute
a Special Assessment against soch Lot and the owner thereof, whether or not a builder, and may
be collected and enforced in the mnanat provided in this Declemtlon For the collection and
enforcement of assessments in gene~L Neither the Association nor any oFits agents, employees
or contractors shall bo liable For any damage which may result from any maintenance work per-
Formed hereunder.
9.2 Damane to Common Areas. In the event of damage to or destruction of any part of
thc Common Areas or any improvements which the Association is required to maintain heraunder,
11 '
the Association shall repair or replace tho same from the insurance to the extent of the availability
et' such insurance proceeds. If such insurance proceeds are insumciant to cover the costs of
repair or replacement oftha property damaged or destroyed, the Association may make n Special
Assessment against ail Owners to cover the additional cost of repair or replacement not covered
by the insurance proceeds. Notwithstanding any obligation or duty of the Association hereunder
to repair or maintain the Common Areas if, due to the willful, intentional or negligent acts or
omissions of any Owner (including any builder) or of a member of' his family or of a guest,
subcontractor, employee, tenant, invltee or other occupant or visitor of such Owner, damage shall
be cansed to the Common Areas, or it' maintenance, repairs or replacements shall be reqnired
thereby which would otherwise be a Common Expense, then the Association shall cause such
repairs to be made and such Owner shall gay for such damage and such maintenance, repairs and
replacements, unless such loss is covered by tho Association's insurance with such policy having a
waiver of subrogation clause. It' not paid by such Owner upon demand by the Association, Ihe
cost of repairing such damage shah be added to and constitute a Special Assessment against such
Owner, whether or not a builder, and its Residence Unit and Lot, to be collected and enforced in
the manner provided in this Declaration for the collection and enforcement of assessments in
general.
ARTICLE X
MORTGAGES
10,1 Notice to Mort_assess. The Association, upon request, shall provide to any
Mortgagee a written certificate or notice specifying unpaid assessments and other defaults, if any,
of the Owner ora Residence Unit or Lot in the perfornmnco oftbe Owner's obligations under this
Declaration' or any other applicable documents.
10.2 Notice to Association. Any Mortgagee who holds a first mortgage lien on a Lot or
Residence Unit may notify the Secretary of the Association of the existence of such mortgage and
provide the name and address of the Mortgagee. A record of the Mortgagee and name and
address shall be maintained by the Secretary of the Asaoeiation and any notice required to be
given to the Mortgagee pursuant to the terms of this Declaration, the By-Laws of the Assoeiatinn
or otherwise shall be deemed effectively given if mailed to the Mortgagee at the address shown in
such record in the time provided. Unless notification ora Mortgage and the name and address of
the Mortgages are furnished to the Secretary, as herein provided, no notice to any Mortgagee as
may be otherwise required by this Declaration, the By-Laws of the Association or otherwise shall
be required, and no Mortgagee shall be entitled to vote on any matter to which it otherwise may
be entitled by virtue of this Declaration, the By-Laws of lhe Association, a proxy 8ranted to such
Mortgagee in connection with the mortgage, or otherwise.
10.3 Mortnnnces' Richta U_non Default by Association. Iftha Association fails (i) to pay
taxes or the charges that are in default and that have or may become charges against the Common
Areas, or (ii) to pay on a timely basis any premium on hazard insurance policies on Common
Areas or to secure hazard insurance coverage for the Common Areas upon lapse ora policy, then
the Mortgagee on any Lot or Residence Unit may make the payment on bchaifofthe Association.
i1.1 By the Association. Except as otherwise provided in this Declaration, amendments
to this Dechratlon shall be proposed and adopted in the followia~ manner:
(i) Notice. Notice of the subject matter of any proposed amendment shall be
included in the notice of the meeting of the members of the Association at which the proposed
amendment is to be considered.
12
(ii) Resolution. A resolution to adopt n proposed amendment may be proposed by
the Board of Directors or Owr~rs having in the aggregate at least a majority of votes of all
Owners.
(iii) Mentln_a. The resolution concerning n proposed amendment must bo adopted
by the vote required by paragraph ! 1.1 (iv) at a meeting of the members of the Association duly
called and held in accordance with tho provisions oftha By-Laws.
(iv) Adootion. Any proposed amendment to this Deetamtion must be approved by
a vote of not less than sixty-seven potent (67%) in the aggregate of all Owners who cast votes in
person or by proxy at a meeting of the members duly celled and held for such purpose; nrovided.
however, that any such amendment shall require the prior written approval of Developer so long
as Developer or any entity affiliated with Developer owns any Lot within and upon the Real
Estate. In the event any Residence Unit is subject to n first mortgage, the Mortgagee shall be
notified of the meeting and the proposed amendment in the same manner ns an Owner if the
Mongagae has given prior notice of its mortgage interest to the Secretary ortho Association in
accordance with the provisions of the foregoing paragraph 10.2.
I 1.~2~By the Developer. Developer hereby reserves the right, so long as Developer or any
entit)~affilisted ~wi_~'th Developer owns any Lot or Residence Unit within and upon the Real Estate,
~to~makn any amendments to this Declaration, without the approval of any other person or enhty,
for soy. purpose reasonably deemed necessa~T or appropriate by the Developer, including without
limitation: to bring Developer or tiffs Declaration into compliance with the requirement of any
statute, ordinance, regulat~ou or order of any pubhc agency hawng junsdlct~ou thereof~ to
conr6rm w~th zomng covenants and conditions; to comply with any reqmrements of the Federal
National Mortgaga Association, the Government National Mortgage Association. the Federal
Home Loan Mortgage Corporation, tho Department of Housing and U~ben Development, the
Veterans Administration or any other governmental agency or to induce any of such agencies to
make, purchase, sell. insure or guarantee first mortgages; or to correct etedcal or typographical
errors in this Declaration or any amendment or supplement hereto; provided that in no event shall
Developer be entitled to make any amendment which has a material adverse effect on the dghts of
any Mortgagee, or which substantially impairs the rights granted by this Declaration to any Owner
or substantially increases the obligations imposed by this l)eciaretion on any Owner.
11.3 Recording. Each amendment to this Declaration shall be executed by Developer only
in any case where Developer has the right to amend this Declaration without any further consent
or approval, and otherwise by the President or Vice President ara] Secrata~7 of the Association;
nrovided that any amendment requiring the consent of Devaloper shall contain Devalope~s signed
consent. All amendments shall be recorded in the office of the Recorder of Hamilton County,
Indiana, and no amendment shall become effective until an recorded.
ARTICLE
MISCELLANEOUS
12.1 Rioht of Enforcement. Violation or threatened violation of any of the covenants,
conditions or restrictions enumerated in this Declaration or in a Plat of any part oftha Real Estate
now or hereafter recorded in the office oftbe Recorder of Hamilton County, Indiana, or zoning
covenants shall be grounds for an action by Developer, the Association. any Owner and all
persons or entities claiming under them, against the person or entity violating or threatening to
violate any anch covenants, conditions or restrictions. Available relief in any such action shall
include recovery of damages or other sums due for such violation, injunctive relief' against any
such violation or threatened violation, declaratory relief and the recovery of costs and attorneys
fees reasonably incurred by any party successfully enforcing such covenants and restrictions;
provided, however, that neither Developar, any Owner nor the Association shall be liable for
damages of any kind to any person for failing or neglecting to enforce any such covenants,
conditions or restrictions.
13
12.2 I ' . No delay or failure on the part of any aggrieved party,
including without limitation the Developer, to invoke any available remedy with respect to any
violation or threatened violation of any covenants, conditions or restdctious enumerated in this
Declaration or in a Plat of any part ofthe Real Estate shall be held to be a waiver by that party (or
an estoppel ofthet party to assert) of any right available to Jt upon the occurrence, recurrence or
continuance of such violation or violations2
12.3 Duration. Thaso covenants, conditions and restrictions and all other provisions of
this Declaration (as the same may bo amended from time to time as herein provided) shall mn with
the land and shall bo binding on all persons and entities from time to time having any right, title or
interest in the Real Estate or any part the~of, and on nil persons claiming under them, until
December 31, 2015, and tboreafler shall continue automatically until terminated or modified by
vote in tho majority of all Owners at any time thereafter; provided, hewever, that no termination
of this Declaration shall affect any easement Im'chy created and reserved unie~s all persons
entitled to the beneficial use of such easement shall consent thereto.
12.4 Severabllltv. Invalidation of any of the covenants, restrictions or provisions
contained in this Declaration by judgment or court order shall not in any way affect any of the
other provisions hereof, which shall remain in full force and effect.
12.5 Titles. The undedlned titles preceding the vadous paragraphs and subparagraphs of
this Declaration are for the convenience of'reference only, and none of them shall bo used as an
aid to the construction of any provisions ofthls Declaration. Wherever and whenever applicable,
the singular form of any word shall bo taken to mean or apply to the plural, and the masculine
fofln shall be taken to mean or apply to the feminine or to the neuter.
12.6,4,pnllcnble Law. This Declaration shell bo governed by the laws of the State of
Indiana.
12.7 Annexation. Additional land adjacent to the Initial Real Estate maybe annexed by
Develope~ to the Initial Real Estate (and from and after soch annenation shall bo deemed pma of
the Real Estate for ell purposes of this Declaraflon~ by execution and recordation in the office of
the Recorder of Hamilton County, Indiana. cfa supplemental declaration by Developer;, and such
antlon sludl require no approvals or action of the Owners.
13.l Access Ri_obis. Developer hereby declares, creates and reserves an access license
over and across all of the Real Estate (subject to the limitations hereinafter provided in this
paragraph 13.1} for the uae of Developer and its representatives, agents, designees, contractors
and affihates during the Development Period. Notwithstanding the foregoing, the area of the
access license created by this patngrnph 13.1 shall he limited to that pan of the Real Estate which
is not in, on, under, over, across or through a building or tho foundation of a building properly
located on the Real Estate. The parties for whose benefit this access license is herein created and
reserved shall exercise such access easement right'! only to the extent reasonably neeessety and
appropriate.
13.2 Signs. Developer shall have the right to use signs of any size during the
Development Period and shall not be subject to tho Plat Covenants with respect to signs during
tho Development Period. The Developer shall also have the right to construct or change any
building, improvement or landscaping on the Real Estate without obtaining the approval of the
Architectural Review Committee at any time during the Development Period.
13.3 Sales Offices and Models. Notwithstanding anything to the contrary contained in
this Declaration or a Plat of any part of the Real Estate now or hereafter recorded in the office of
the Recorder of Hamilton County, Indiana, Developer, any entity related to Developer and any
other person or entity with the prior written consent of Developer, during the Development
14
Period, shall bo cotitled to construct, install, erect and maintain such facilities upon any portion of
the Real Estate owned by Developer, the Association or such person or entily as, in tho sole
opinion of Developer, may he reasonably required or convenient or incidental to the development
of the Real Estate or tho sale of Lots and tho construction or sale of resldencos thereon. Such
facilities may include, without limitation, storngo mens or tanks, parking areas, si~s, model
residences, construction ofllces or trailers and sales ot~ces or trailers.
IN WITNESS WHEREOF, this Declaration has been executed by Developer as of the
date first above written.
Davis Homes, LLC
By: Davis Holding Corporation,
Mann~ing Member
C. Richard Davis
Vice President
· STATE OF INDIANA )
) SS:
COUNtrY OF MAR/ON )
Befora mn, a Notary Public. in end for the State of Indians, personally appeared C.
Richard Davis, Vice President of Davis Holding Corporation, an Indiana corporation, who
acknowledged the execution of the forego'rog Declaration of Covenants, Conditions and
Restrictions of Tho Trails at Avian Glen.
WITNESS my hand nod Notarial Seal this ~ day of ilelv..~$1995.
N°t~ry Pubjic o
Printed 'J
My Commission Expires: L~. 2 t. q b
County ofResldence: ~
This instrument was prepared by C. Richard Davis, Vice President of Davis Holding Corporation,
3755 East 82nd Street, Suite 120, Indianapolis, Indiana 46240, (317) 595-2900.
15
Exhibit. "~
Commencing at the northwest corner of said Northeast Quarter; thence South
89 degrees ,31 minutes 11 seconds East along the north line of said Northeast
Quarter a distance of 81.25 feet [o the POINT OF' BEGINNING; thence continuing
South 89 degrees ;3[ minutes 11 seconds East along said north line a distance
of 21,~5.47 feet [o the centerline of Cherry Tree Avenue; thence South 42.
degrees 49 minutes 5,.~ seconds West along said cen[erliae o distance of
1089.07 feet to a railroad spike at the Northeast corner of a parcel of land
described in a deed [o Marion K, Myers recorded os,Instrument Number 90-05114
in [he Office of the Recorder of Hamilton County;. thence North 8,.3 degrees 04
minutes 46 seconds West a distance of 5,50.00 feet; thence South O0 degrees 10
minutes 4.5 seconds East a dis[once of 150.00 feet; thence South 44 degrees 40
minutes 1.3 seconds West a distance of 70.90 feet; [hence South 89 degrees 51
minutes 11 seconds West parallel with sold north quarter line a dis[once of
100.00 feet; thence South ;3.3 degrees 54 minutes 44 seconds West a distance of
1,30.59 feet; thence North ,37 degrees 1,3 minutes ,32 seconds West a distance of
416.05 feet; thence North 27 degrees 5.5 minutes 06 seconds West a distance of
810.04 feet to [he POINT OF' BEGINNING. Containing 29.,3B5 acres, more or less.
99099221{03
99099~803
Filed for Rece~d in
HAMILTON COUNTYt INDIAI~
tv~IRV L CLARK
On 04-16-1999 At
DEC COY RES 16.00
OR
THIRD SUPPLEMENT TO
DECLARATION OF COVENANTS,
CONDITIONS AND RESTRICTIONS
OF TIIE TRAILS AT AVIAN GLEN
This Third S..upple.m.~.t is..m~..d.e this L~tt~ day of._~ 1999, by Davis
Homes, LLC, an Indiana limited hablhty company (the "Developar"). '"
1. Developer is the owner of certaln real estate more particularly described in Exhibit "A"
attached hereto (the 'Additional Real Estate").
2. Developer executed that certain Declaration of Covenants, Conditions and Restrictions
of The Trails at Avian Glen, dated August 29, 1995 and recorded the same on Sept. eraber 1 {,
1995 as Instrument No. 95-51394 in the Office ofthe R~corder of Hamilton County, lnd'uma (the
"Declaration").
3. Developer reserved in said Declaration thc right from time to time, acting alone, to
subject to the terms and provisions of the Declaration certain additional real estate located within
the tracts edjacent to tho Initial Real Estate (ns defined {n the Declaration) by execution nnd
recordation in the Office of the Recorder of Ham{Itoh County of n supplemental declaration so
annexing all or any part of such real estate.
4. The Additional Real Estate constitutes n part of the tract adjacent to the Initial Real
Estate.
NOW, 'I'I-~.REFORE, Declarant, in accordance with the rights reserved in the
Declaration. makes this Third Supplement as follows:
1. Definitions. Ail terms used in this Third Supplement not otherwise defined in this Third
Supplement shall have the meanings set forth in the Declaration, Accordingly, the Additional
Real Estate shall hereafler for all purposes be included in the definition of Real Estate in the
Declarat'ton. ns the same may be amended or supplemented From time to time ns therein provided.
2. Third Suoolement to Declaration. Developer hereby expressly declares that the
Additional Real Estate, together with all improvements of every kind and nature whatsoever
located thereon, shall be annexed to the Real Estate and made subject to Ibe provisions of the
Declaration, as the same may be amended or supplemented from lime to time as therein provided,
and the Real Estate is hereby expanded lo include the Additional Real Estate, all as if the same
had originally been included in the Declaration. The Additional Real Estate shall be hereafter
held, transferred, sold, conveyed, hypothecated, encumbered, leased, rented, used, improved and
occupied subject to all of the provisions, agreements, covenants, conditions, realrlctions,
easements, assessments, charges and liens of the Declaration, as the same may be amended or
supplemented from time to time as therein provided.
3. ~t~Le, g~,~:~tl~0~. All such provisions oF the Declaration, as the same may be
amended or supplemented from time to time as therein provided, shall be covenants running with
the land and shall be binding upon, and inure to the benefit of Developer and any other person or
entity having any right, title or interest in the Real Estate or any part thereoF.
4. Declaration Continuous. Except ns expressly supplemented by this Third Supplement.
tho Declaration shall continue unchanged and in fidl force nnd effect.
IN WITNESS WI-~REOF, this Third Supplement has been executed by Developer as of
the date first above written,
By: Davis Homes, LLC,
an Indiana limited liability company
By: Davis Holding Corporation.
managing member
¥ice President
2
STATE OF INDIANA
COUNTY OF MARION
SS:
Before-me, a Notav/ Public in and for the State of Indiana, personally appeared
Christoph~r R. White, Vic~ President of` Davis Holding Corporation, who acknowledged the
execution of' the f`oregoing Third Supplement to Declaration oF Covenants, Conditions and
Restrictions of`Tho Trails at Avian Glen.
WITNESS my hand and Notarial Seal this ~ day of`~ 1999.
N~)tnry P~b-I~- '4
Pnnted Name "-'
My Commission Expires: t4. ~.~. oc,
Residing in ~ County
This instrument was prepared by Ronnld F. Shady, Jr., Vic~ President of Davis Holding
Corporation, 3755 East 82nd Street, Suite 120, lndinnnpolis, Indiana 46240 (3 i 7) 595-2900
3
Exhibit "A"
Part of ti~ Northeast Quarter and the Northwest Qunfler of Section 28, Township 18 North,
Rnnge 4 Enst, Locnto in Clny Township, l-lnmi!ton County, Indinnn, described ns follows:
Commencing nt thc Southenst Qtmflcr of said Section 28; thence Noflh 89 degrees 35 minutes
24 seconds West nlong the South line thereofn dlstnnce of 579.48 feet to n rnilrond spike nt the
Point of Beginning; thence continuing North 89 degrees 35 minutes 24 seconds West nlong snid
South line a distnnce of'2086.15 l'cet to n Ornss Plug mnrking thc Southwest comer ofsnid
Northenst Qunrter; thence Noflh 00 degrees 54 minutes 38 seconds West nlong the centcrlinc of
Cherry tree Avenue n distance of 276.00 f'cci to n hnlf inch rebnr; thence North 43 degrees 49
minutes $3 seconds Enst nlong snid centerline n distnnce of'2204.Tg feet to a railrond spike;
thence South 89 degrees 39 minutes 16 seconds Enst n distnnce of 574.92 feet to n 5/8 inch rebar
with plnstic cnp stamped" SCHNEIDER ENG FII~4 #0001 #; thence South 00 degrees 20
minutes 43 seconds West n distnncc of 1877.95 feet to the Point of Beglnnlng. Contninlng
62.263 ncres, more or less.
Except.
Pert of the Hedlwost Qum~or o1' SecUon 20 of Townsk~p 18 North, Ronge 4/mit, Iocotud in Cio), Temnhfp, II~nlt0n County,
Ceilun.ncln9 at the SooU~eeM cQf~r of the Northe(lst Querier of sold $ootinn 28; thence North 89 dsgreee ,TS minute 24
ssee~ds West dong the South fine thereof e dlstoAce of 579.48 feet to a rolrood spike; theltce Nerth O0 degrees 20
minutes 43 seconds £eet porollel with the eo~t line of sod Northeost Querier e dinl~nce ct 914.65 feet to the POINT OF
B[CiNNINO; thrace ceotimlin(7 Ho~h O0 degreen 20 minutes 4,T secends Kost per,lei with cold £est line n distmce of
96,T.25 feel; thence North 69 degrees ,T9 minutes 16 necends West o distance of 519.76 feel; thence South 43 degrees 49
minutes 53 escends Went porollcl with the centedine o! Cherry Tree Rood o dislence of 868.25 feet to u pob~t en
opproximote rented'me of Mitchen~r Orah; (the next s'.( courses dung tho oppresimute cestedino of Mitchener Oroin) thence
South 67 degrees 23 minutes 45 seconds F. ost u distence o( 140.:28 (eel; thence South 70 degrees 50 minutes 22 secends
foot a dlslence of 366.64 lent; thence South 80 degrees 21 minutes 15 secedes F'OSt o distmce of 199.17; theoce South
76 degrees 56 minutes 20 seconds ~.o~t a o'~stence of 156.75 feel; thence South 60 degrece 26 ndm]tes ,53 eocende feet a
disteece of 209.70 tsel; thence South 70 degrees 05 mlmltes 02 seconds fast e distmce of 94.90 feel lo tho POINT OF'
B[:ONNINC. Conto~lng 16.~69 ocren, mm, e or lois.
pLAT COVENANTS AND RESTRICTIONS
Emerald Crest at
HAZEL DELL SUMMIT
SECTION 1
The undersigned, Davis Homes, LLC, an Indiana liability company (the "Developer"), is
the Owner of thc real estate more specifically described in Exhibit "A" attached hereto (the "Real
Estate"). The Developer is concurrently platting and subdividing the Real Estate as shown on the
plat for Emerald Crest at Hazel Dell Summit Section 1, which is filed of record ,
1999, in the office of' the Recorder of Hamilton County, Indiana (the "Plat") and desires in the
Plat to subject the Real Estate to the provisions of these Plat Covenants and Restrictions. The
subdivision created by the Plat (the "Subdivision") is to be known and designated as "Hazel Dell
Summit". In addition to the covenants and restrictions hereinafter set forth, the Real Estate is also
subject to those covenants and restrictions contained in the Declaration of Covenants, Conditions
and Restrictions of The Trails at Avian Glen, dated August 29, 1995 and recorded on September
25, 1995 as Instrument No. 95-51394, in the office of the Recorder of Hamilton County, Indiana,
as the same may be amended or supplemented from time to time as therein provided (the
"Declaration"), and to the rights, powers, duties and obligations of The Trails at Avian Glen
Community Association, Inc. (the "Association") set forth in the Declaration. If there is any
irreconcilable conflict between any of the covenants and restrictions contained herein and any of
the covenants and restrictions contained in the Declaration, the covenants and restrictions
contained in the Declaration shall govern and control, but only to the extent of the irreconcilable
conflict, it being the intent hereof that all covenants and restrictions contained herein shall be
applicable to the Real Estate to thc tidiest extent possible. Capitalized tcrms used herein shall have
the same meaning as given in the Declaration.
In order to provide adequate protection to all present and future Owners of Lots or
Residence Units in the Subdivision, the following covenants and restrictions, in addition to those
set forth in the Declaration, are hereby imposed upon the Real Estate:
PUBLIC RIGHT OF WAY. The rights-of-way of the streets as shown on the Plat, if not
heretofore dedicated to the public, are hereby dedicated to the public for use as a public
fight-of-way.
~. There are areas of ground on the Plat marked "Common Area".
Developer hereby declares, creates and gran~s a non-exclusive easement in favor of each
Owner for the use and enjoyment of the Common Areas, subject to the conditions and
restrictions contained in the Declaration.
UTILITY. DRAINAGE AND SANITARY SEWER EASEMENTS. There are areas of
ground on the Plat marked "Utility Easements, Drainage Easements and Sanitary Sewer
Easements", either separately or in combination. Tile Utility Easements are hereby created
and reserved for the use of all public utility companies (not including transportation
companies), governmental agencies and the Association for access to and installation,
maintenance, repair or removal of poles, mains, ducts, drains, lines, wires, cables and other
equipment and facilities for the furnishing of utility services, including cable television
services. The Drainage Easements are hereby created and reserved for (i) the use of
Developer during the "Development Period" (as such term is defined in the Declaration)
for access to and installation, repair or removal of a drainage system, either by surface
drainage or appropriate underground installations, for thc Real Estate and adjoining
property and (ii) the use of the Association and the Board of Public Works of the City of
Carmel for access to and maintenance, repair and replacement of such drainage system.
The Owner of any Lot in the Subdivision subject to a Drainage Easement, including any
builder, shall be required to keep the portion of said Drainage Easement on his Lot free
from obstructions so that the storm water drainage will be unimpeded and will not be
changed or altered without a permit from the Board of Public Works and prior written
approval of the Developer or the Association. The Sanitary Sewer Easements are hereby
created and reserved for the use of the Board of Public Works and, during the
Development Period, for the use of Developer for access to and installation, repair,
removal, replacement or maintenance of an underground storm and sanitary sewer system.
Tile delineation of the Utility, Drainage and Sanitary Sewer Easement areas on the Plat
shall not be deemed a limitation on the rights of any entity for whose use any such
easement is created and reserved to go on any portion of any Lot subject to such easement
temporarily to the extent reasonably necessary for the exercise of the rights granted to it
by this Paragraph 3. Except as installed by Developer or installed as provided above, no
structures or improvements, including without limitation decks, patios, pools, landscaping,
fences or walkways, shall be erected or maintained upon said easements.
LAKE EASEMENTS. There are areas of ground on the Plat marked "Lake Easements".
Such Lake Easements are hereby created and reserved: (a) for the use and enjoyment of
Owners, subject to the rights of the Association to promulgate reasonable rules and
regulations (not inconsistent with the provisions of the Plat or the Declaration) governing
such use and enjoyment; and (b) for the use of the Developer, during the Development
Period, and the Association for access to and construction, maintenance and control of
retention and detention ponds or lakes and the installation, repair and replacement of
improvements and vegetation thereon. Except as installed by Developer or installed and
maintained by the Association, no improvements, including without limitation piers, decks,
waikways, patios and fences, shall be erected or maintained upon any Lake Easements.
LANDSCAPE EASEMENTS. There are areas of ground on the Plat marked "Landscape
Easements". Such Landscape Easements are hereby created and reserved for the use of the
Developer, during the Development Period, and the Association for access to and the
installation, maintenance and replacement of foliage, landscaping, screening materials,
entrance walls, lighting, irrigation and other improvements. Except as installed by
Developer or installed and maintained by the Association or with the approval of the
Architectural Review Committee, no structures or improvements, including without
limitation piers, decks, walkways, patios and fences, shall be erected or maimained upon
said Landscape Easements.
REQULATED DRAINAGE EASEMENTS. There are areas of ground on the Plat
marked "Regulated Drainage Easements". Such Regulated Drainage Easements are
hereby created and reserved: (i) for the use of Developer during the Development Period
for access to and installation, repair or removal of a drainage system, either by surface
drainage or appropriate underground installations, for the Real Estate and adjoining
property and (ii) the use of the Association, the City of Carmel Board of Public Works
and the Hamilton County Drainage Board for access to and maintenance, repair and
replacement of such drainage system. The Owner of any Lot in the Subdivision subject to
a Regulated Drainage Easement, including any builder, shall be required to keep the
portion ofsaid Regulated Drainage Easement on his Lot free from obstructions so that the
storm water drainage will be unimpeded and will not be changed or altered without a
permit from Hamilton County Drainage Board and prior written approval of the
Developer or the Association.
BUILDING LOCATION - FRONT. BACK AND SIDE YARD REOUIREMENTS.
Building lines are established on the Plat. No building shall be erected or maintained
between said setback lines and the front, rear or side lot line (as the case may be) of a
Lot. The setback lines may vary in depth in excess of the minimum as designated on the
Plat. The minimum front yard set back shall be twenty-five (25) feet. Except as otherwise
shown on the Plat, the minimum rear yard setback shall be twenty (20) feet. The
minimum side yard set back shall be five (5) feet.
RI~$1DENTIAL UNIT SIZE AND OTHER REOUIREMENTS. No residence
constructed on a Lot shall have less than twelve hundred (1200) square feet of total living
area, exclusive of garages, carports and open porches in the case of one story structure.
The minimum main (first floor) living area of any building higher than one story shall be
eight hundred (800) square feet. Each Residence Unit shall include an attached two-car
(or larger) enclosed garage.
The maximum height of any residential dwelling constructed on a Lot shall be twenty-five
(25) feet measured from finished grade to the underside of the eave line.
10.
11.
12.
13.
14.
15.
RESIDENTIAL UNIT USE. All Lots in the Subdivision shall be used solely for residential
purposes. No business building shall be erected on any Lot, and no business may be
conducted on any part thereof in violation of any home occupation provisions of the
applicable zoning ordinance. No building shall be erected, placed or permitted to remain
on any Lot other than one detached single-family residence and permanently attached
residential accessory buildings. Any garage, tool shed, storage building or any other
attached building erected or used as an accessory building to a residence shall be of a
permanent type of construction and shall conform to the general architecture and
appearance ofsuch residence.
ACCESSORY AND TEMPORARY BUILDINGS. No trailers, shacks, outhouses or
detached or unenclosed storage sheds, tool sheds, garages or accessory buildings of any
kind shall be erected or situated on any Lot in the Subdivision, except that used by the
Developer or by a builder during the construction ora residential building on the property,
which temporary construction structures shall be removed upon completion of
construction of the Subdivision or building, as the case may be.
TEMPQRARY RESIDENCE. No trailer, camper, motor home, truck, shack, tent, boat,
recreational vehicle, basement or garage may be used at any time as a residence,
temporary or permanent; nor may any other structure ora temporary character be used as
a residence.
NUISANCES. No domestic animals raised for commercial purposes or no farm animals or
fowl shall be kept or permitted on any Lot. No noxious, unlawful or otherwise offensive
activity shall be carried out on any Lot, nor shall anything be done thereon which may be
or may become a serious annoyance or nuisance to the neighborhood.
VEHICLE PARKING. No camper, motor home, truck, trailer, boat, snowmobile or other
recreational vehicle of any kind may be stored on any Lot in open public view. No
vehicles ofany kind may be put up on blocks or jecks to accommodate car repair on a Lot
unless such repairs are done in the garage. Disabled vehicles shall not be allowed to
remain in open public view.
SIGNS, No sign of any kind shall be displayed to the public view on any Lot, except that
one sign of not more than six (6) square feet may be displayed at any time for the purpose
of advertising a Residential Unit for sale, and except that Developer and its affiliates and
designees may use larger signs during the sale and development of the Subdivision.
MAILBOXES. All mailboxes and replacement mailboxes shall be uniform and shall
conform to the standards set forth by the Architectural Review Committee.
4
16.
17.
18.
19.
20.
21.
22.
23.
GARBAGE AND REFUSE DISPOSAL. Trash and rel~se disposal will be on an
individual basis, lot by lot. The community shall not contain dumpsters or other forms of
general or common trash accumulation except to facilitate development and house
construction. No Lot shall be used or maintained as a dumping ground for trash. Rubbish,
garbage and other waste shall be kept in sanitary containers. All equipment for storage or
disposal of such materials shall be kept clean and shall not be stored on any Lot in opea
public view. No rubbish, garbage or other waste shall be allowed to accumulate on any
Lot. No homeowner or occupant ora Lot shall burn or bury any garbage or re£use. All
garbage, trash cans and receptacles and woodpiles shall be screened.
~;TORAGE TANKS. No gas, oil or other storage tanks shall be installed on any Lot.
WATER SUPPLY AND SEWAGE SYSTEMS. No private or semi-private water supply
or sewage disposal system may be located upon any Lot. No septic tank, absorption field
or similar method ofsewage disposal shall be located or constructed on any Lot.
DITCHES AND SWALES. All Owners, including builders, shall keep unobstructed and in
good maintenance and repair all open storm water drainage ditches and swales which may
be located on their respective Lots. All sump pump discharges shall be connected to a
subsurface drain, storm sewer or lake. No drains shall be discharged directly to the
ground surface. No filling, regrading, piping, rerouting or other alteration of any open
ditch or swale may be made without the express written consent of the Architectural
Review Committee, and subject to the approval of the appropriate governmental entity.
GARAGES/DRIVEWAYS. Each driveway in the Subdivision shall be of concrete or
asphalt material.
ANTENNA AND SATELLITE DISHES. Outdoor satellite dishes shall be permitted in
the Subdivision; provided, however, that the (i) the diameter of the satellite dish shall be
no more than twenty-four inches (24"), (ii) only one (I) satellite dish shall be permitted on
each Lot, and (iii) the Architectural Review Committee shall have first determined that the
satellite dish is appropriately placed and properly screened in order to preserve property
values and maintain a harmonious and compatible relationship among the houses in the
Subdivision.
AWNINGS, No metal, fiberglass, canvas or similar type material awnings or patio covers
shall be permitted in the Subdivision.
FENCING. No fence shall be erected on or along any Lot line, nor on any Lot, the
purposes or result of which will be to obstruct reasonable vision, light or air. All fences
shall be kept in good repair and erected so as to enclose the property and decorate the
same without unreasonable hindrance or obstruction to any other property. Any fencing
permitted to be used in the Subdivision must be wooden or black or dark green vinyl
4,
25.
6,
7.
28.
coated chain link and shall not be higher than six (6) feet. Uncoated chain link fencing is
prohibited. No fencing shall extend into a yard, fronting onto a street, closer to the street
than the front corner of the residence. All fencing style, color, location and height shall be
generally consistent within the Subdivision and shall be subject to prior written approval of
the Architectural Review Committee. Fences are allowed in easements but are erected at
owner's risk as such fences may be partially or completely torn down by others if they
interfere with the installation, operation, and/or maintenance of the facilities for which the
easement has been reserved.
SWIMMING POOLS. SPORTS COURT AND PLAY EOUIPMENT. No above-ground
swimming pools shall be permitted in the Subdivision. No hard surfaced sports courts of
any kind shall be permitted on any Lot except as approved by the Architectural Review
Committee. No metal outdoor play equipment shall be permitted in the Subdivision.
~. No solar heat panels shall be permitted on roofs of any structures in
the Subdivision. All such pnnels shall be enclosed within fenced areas nnd shall be
concealed from the view of neighboring Lots, common areas and the streets.
TSID IHT . Except as otherwise approved by the Developer, all outside
lighting contained in or with respect to the Subdivision shall be of an ornamental nature
compatible with the architecture within the Subdivision and shall provide for projection of
light so as not to create a glare, distraction or nuisance to any Owner or other property
owners in the vicinity of or adjacent to the Subdivision. All homes shall have uniform
"dusk to dawn" front yard lights and/or coach lights attached to the house.
SITE OBSTRUCTIONS. No fence, wall, hedge or shrub planting which obstructs sight
lines at elevations between two (2) and nine (9) feet above the street shall be placed or
permitted to remain on any corner lot within the triangular area formed by the street
property lines and a line connecting points twenty-five (25) feet from the intersection of
said street lines, or in the case of a rounded property corner, from the intersection of the
street lines extended. The same 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. No tree shall be permitted to remain within such distances of such intersections
unless the foliage line is maintained at a sufficient height to prevent obstruction of such
sight lines.
VIOLATION. Violation or threatened violation of these covenants and restrictions shall
be 8rounds for an action by the Developer, the Association or any person or entity having
any right, title or interest in the Real Estate, and all persons or entities claiming under
them, against the person or entity violating or threatening to violate any such covenants or
restrictions. Available relief in any such action shall include recovery of damages for such
violation, injunctive relief against any such violation or threatened violation, declaratory
relief and the recovery of costs and attorneys reasonable fees incurred by any party
successfully enforcing these covenants and restrictions; provided, however, that neither
6
30.
31.
32.
the Developer nor the Association shall be liable for damages of any kind to any person
for failing to enforce such covenants or restrictions.
(~/~RMEL PLAN COMMISSION. The Carmel Plan Commission, its successors and
assigns shall have no right, power or authority to enforce any covenants, restrictions or
other limitations contained herein other than those covenants, restrictions or limitations
that expressly mn in favor of the Carmel Plan Commission; provided that nothing herein
shall be construed to prevent the Carmel Plan Commission from enforcing any provisions
of the Subdivision Control Ordinance, ns amended, or any conditions attached to approval
of the Plat by the Plat Committee.
~ These covenants and restrictions may be amended at any time by a vote
of no less than ninety percent (90%) if such date is taken within twenty (20) years after the
date hereof and if such vote is taken alter such twenty (20) year period by a vote of not
less than seventy-five percent (75%) of the Lots in all Subdivisions which are now or
hereafter made subject to and annexed to the Declaration; provided, however, that until all
of the Lots in the Subdivision have been sold by Developer, any such amendment shall
require the prior written approval of Developer. Each such amendment shall be evidenced
by a written instrument, which instrument shall set forth facts sufficient to indicate
compliance with this paragraph and shall be recorded in the office of the Recorder of
Hamilton County, Indiana. No amendment which adversely affects the rights of a public
utility shall be effective with respect to such public utility without its written consent
thereto. No amendment which is contrary to a zoning commitment shall be effective
without the written approval of the affected adjacent homeowners associations designated
by the City of Carmel.
TERM. The foregoing plat covenants and restrictions, as the same may be amended from
time to time, shall run with the land and shall be bindin8 upon ail persons or entities from
time to time having any right, title or interest in the Real Estate and on nil persons or
entities claiming under them, until December 31, 201 ~ and thereafter they shall continue
automatically in effect unless terminated by a vote of a seventy-five percent (75%) of the
then Owners of the Lots in the Subdivision subject to paragraph 30 above; provided,
however, that no termination of these covenants and restrictions shall affect any easement
hereby created and reserved unless all persons entitled to the beneficial use of such
easement shall have consented thereto in writing.
~. Invalidation of any of the foregoing covenants or restrictions by
judgment or court order shall in no way affect any of the other covenants and restrictions,
which shall remain in full force and effect.
7
IN WITNESS WHEREOF, the undersigned Developer, ns the owner of the Real Estate,
has hereunto caused its name to be subscribed this day of ,1999.
Davis Homes, LLC, an Indiana
limited liability company, by its
manager-member,
Davis Holding Corporation, an
Indiana corporation,
Christopher R. White,
Vice President
STATE OF INDIANA )
)
COUNTY OF MARION )
SS:
Before me, a Notary Public in and for the State of Indiana, personally appeared
Christopher R. White, the Vice President of Davis Holding Corporntion, an Indiana corporation,
and acknowledged the execution of this instmmant as his voluntary act and deed as such officer
on behnlfofsuch corporation for the uses and purposes hereinabove set forth.
Witness my signature and Notarial Seal this day of
.1999.
Notary Public
Printed
My commission expires:
I am a resident of
County, Indiana.
This instrument was prepared by Ronaid F. Shady, Jr., Vice President of Davis Holding
Corporation, 3755 East 82nd Street, Suite 120, Indianapolis, Indiana 46240 (317) 595-2900.
I !
Iii i
I i. N ,~ il§
/
I§
i
o,,,, ~ ..... , ,.~.,,..~ c.=,.., Noblesville Townshi
Haze~ E.
Foster
Woodbm0k ~ & Barbara ivlyers
Myers
! Davis: Ney E,
Ag regales
Aley E.
Hunt
80.4
4Ji Wlliam H.
No~hwood
Waler C0. 87.9
T. 17-N
Russell P. &
Veit
206.6
64.6
N
condemnation aa determined by an independent appraisal made by a qualified Real Estate
Appraiser with Member or the Appraisal Institute certificate or the equivalent as selected by the
Board. The Association shall represent the interests of ali Owners.
lSECTION~I~.~ANNEXA~Ig'~.N,~O~F./~DmoNAI~PROPER~. ~'
Section 17.1 Annexation without Approval of Owners.
: (a) As the owner thereof, or if not the owner, with the consent of the owner thereof,
Declarant shall have the unilateral right, privilege, and option, from time to time at any
time until December 31, 2005, to subject to ,the provisions of this Declaration and the
jurisdiction of the Association all or any portion of the real property described in Exhibit
ID', attached hereto and by reference made a part hereof, and any other real estate
adjacent thereto or to the Real Estate aa the same exists from time to time whether in fee
simple or leasehold, by filing in the Recorder's Office of Hamilton County, Indiana, an
amendment or Supplemental Declaration annexing such property. Such Supplemental
Declaration or amendment to this Declaration shall not require the vote or approval of
any Owners. Any such annexation shall be effective upon the f'Lling for record of such
amendment or Supplemental Declaration unless otherwise provided therein.
Os) Declarant shall have the unilatem, l right to transfer to any other person the said
right, privilege, and option to annex additional property which is herein reserved to
Declarant, provided that such tr-~asferee or assignee shalt be the developer of at least a
portion of said real property to be so annexed and that such transfer is memorialized in
a wriuan, recorded instrument.
(c) The rights reserved unto Declarant to subject Additional Land to the Declaration.
shall not be implied or construed so as to impose any obligation upon Declarant to
subject any of such Additional Land to this Declaxation or to the jurisdiction of the
Association nor any obligation, if subjected, to build housing of the same type, design,
or materials. If such Additional Land is not subject~ to this Declaration, Declaxant's
reserved rights shall not impose any obligation on Declarant to impose covenants and
restrictions similar to those contained herein upon such Additional ! and, nor shall such
rights in any manner limit or res:fict the use to which the Additional Land may be put
by Declarant or any subsequent owner thereof, whether such uses are consistent with the
covenants and restrictions imposed hereby or n~lt.
Sec:ion 17.2 Acquisition of Additional Common Ar~. Declarant may convey to the
Association additional real estate, improved or unimproved, which upon conveyance or
dedication shall be accepted by the Association and thereafter shall be maintained by the
Association aa a Common Expense for t.~.e benefit of all Owners.
-31 -
The following d~scribed re.al estate located in Hamilton County,
Indiana:
Two and one-half acres out of the southeast comer of Section 21,
Township 18 North, Range 4 l:~t., d~cribed as follows:
Commencing at the $outh-",~t Comer of said Section; thence North
along the Sec:~on line to the grave{ mad formerly lmown as the
Nobleiville and Indianapolis Highway; thence Southwest along said
highway to the south line of said S~fion; thence I:~ to the place
of beginning; also The North Half o.f the Northwest Quar~r of
Se~don 2'/, Township 18 North, P,~.n§e 4 East, except 3 1/3 acres
off the south side thereof; also
Pan of the Southwest Quar..-r of S~tion 22, Township 18 North,
Range 4 1:~; commencing at the Southwest comer of said quarter
sec6on; thence North 53 rods; thence East 151 rods; the.ace
Southeast to a pint on the South ~e of said Quarmr S~tion 156
rods n-,~t of the place of beginning.; thence west to the pla~ of
belirmin~, containin§ fi~-one ~:re~; also
Pan, of the Northeast Qu~-,er of the Northeast Quarmr of Section
2~, Township 18 Nor:% Ran~.e 4 ~:~t, commencing at the
Northeast Comer of said Section, thence West 26.20 rods, thence
South ~,6 I/2 de~r~s West, 13.93 rods; thence South 97 rods;
the.ace $outh~,.asterty to a point ~'hich is 17.42 rods West of and
110.6-/rods South of the Nor, heaft comer of said section, thence
Nora 34 rods, thence Eas; I?.~2 :ods, thence North ?6.6'/rods to
the place of be=~innin~; alsq.;
Fo,~ acres off the Nora end of a Wact described as follows:
Commencing 35.12 r~s Wes; of the Southeast Comer of the
Nor, beast Qua-mr of Se:don ~. Townahip 1~ North, Ran§e 4
~:~, thence West 125.8 rods. :?~nce Nor~t 17.11 rods, thence
No,ah ~3 1;2 degrees Eas;. 182.~2 rods, thence South l~0 rods to
the pla~o~be~.innin~_.
DECLARATION
OF
COVENANTS, CONDITIONS AND RESTRICTIONS
OF
DELAWARE TRACE
TABLE OF CONTENTS
SECTION 1. DEFINITIONS ......
Section 1.1 Additional !a~d . .
Section 1.2
Section 1.3
Section 1.4
Section 1.5
Section 1.6
Section 1.7
Section 1.8
Section 1.9
Section 1.10
Section IAI
Section 1.12
Section 1.13
Section 1.14
Section lAS
Section 1.16
Section 1.17
Section IAi
Section 1.19
Section 1.20
Section 1.21
Section 1.22
Association .....
Board of Directors
Building ......
Builder .......
By-Laws ......
Committee .....
Common Area...
Common Expenses
Declarant .....
Delinquency Dale
Drainage ;:~ements
Ingress-Egress ~:~ements
Lot .........
Mortgagee ....
Owner .......
Pha~e .......
Plat .........
Real Estate ....
Residence .....
Sewer Easements
Vehicle ......
1
1
1
2
2
2
2
2
2
2
2
2
2
2
3
3
3
3
3
3
3
3
3
SECTION 2. IN GFaN-ERAL ............... Section 2.1 Name .................
Section 2.2
Section 2.3
Section 2.4
Section 2.5
Section 2.6
Section 2.7
Section 2.8
Residential Develop.m, ent .
Governmental RestriCtions ~i~
Effect on Owners ........... .
Owner's Easement of Enjoyment
Delegation of Use ...........
Owner's Right to Ingress, Egress and Support
Rules and Regulations ..............
3
3
4
4
4
SECTION 3. PHYSICAL CHARACTERISTICS OF THE DEVELOPMENT ....... 6
Section 3.1 Ownership of Common Area ............ - ............. 6
Section 3.2 Ma/ntenance of Common Area ........................ 6
Section 3.3. Easements .................................... 6
Section 3.4 Streets ................................. · ...... 7
Section 3.$ Underground Utilities ............................. 7
Section 3.6 Sidewalks ..................................... 7
Section 3.7 Declarant's Rese:ved Easement ....................... 7
SECTION 4. CONSTRUCTION PROVISIONS
Section 4.1 One Residence ..........
Section 4.2
Section 4.3
Section 4.4
Section 4.5
Secrion 4.6
Section 4.7
Section 4.8
Section 4.9
Section 4.10
Section 4. I 1
·. Section 4.12
Section 4.13
Section 4.14
Section 4.15
Section 4.16
Section 4.17
Minimum Residence Siz~ ...
Maximum Height ........
Construction of Sewage I..ines
Setback ..............
Prohibited Building SP/les... ~.,.
lvl/nimum Exterior Brick Requirements
Solar Devices ...............
Antennas and Towers ..........
Garbage Disposals and Sanitary Sewer, Water
Fences, Mailboxes and other Structures.
Light Fixtures ..............
Exterior Construction ..........
Submission of Documents .......
Responsibilities During Construction
Drainage ..................
Landscaping ...............
.. 8
9
9
9
.. 9
9
9
10
10
.o 10
.. 12
.. 12
SECTION :5. MEMBERSHIP IN TIlE ASSOCIATION .................... 13
Section 5.1 The Organimtion ................................ 13
Section 5.2 Membership ................................... 13
Section 5.3 Classes of Membership ............................ 13
SECTION 6.
Section 6. I
Section 6.2
Section 6.3
Section 6.4
Section 6.5
Section
Section
Section
Section
Section
Section
Section
RESTRICTIONS ON THE USE OF THE REAL ESTATE
Parking ..............
Temporary Structures .....
Animals and Pets ........
Nuisance ..... .~ ~. ......
Garbage Cans, %Voodpiles, Ere
6.6 Signs ...........
6.7 Subdivision of a Lot ..
6.8 Trash Receptacles ....
6.9 Drilling and Exploration
6.10 Ditches and Swales ..
6.11 Line of Sight ......
6.12 Damaged Strucaires..
Section 6.13 Clotheslines .......
Section 6.14 Playground Equipment;.
Section 6.15 Outside Burning ......
14
14
14
14
15
15
15
· I. 15
15
15
16
16
16
16
16
16
- ii -
Section 6.16 Electric Bug Killers .................. ; ........... 16
.section 6.17 Maintenance of Lots and Improvements ................. 16
Section 6.18 Maintenance of Common Ama ....................... 17
.section 6.19 The Owner of any Lot shall do the following: .............. 17
SECTION 7. ENFORC~ ................................... 17
SECTION 8.
ASSESSMENT AND corr.]:.CIION OF COlVllVlON EXPENSES ..... 18
Payment of Regular Assessments ...............
Budgeting ............................
Non-Waiver of Assessments :,, . .
Exemptions fromAs=smentt'.iii.ii[i.[ii[il
Special Assessments ......................
Common Expenses Attributable to Fewer Than All Lots
Lien ............... · ............
Ratification of Non-budgeted Assessments ....
Certificate of Payment of Assessments ......
No Waiver of Liability for Common Expenses
Personal Liability of Owners ...........
Accoums .......................
Current Operation Account .............
Reserve Account ..................
Section 8.1
Section 8.2
Section 8.3
Section 8.4
Section 8.5
Section 8.6
Section 8.7
Section 8.8
Section 8.9
Section 8.10
Section 8.11
Section 8.12
Section 8.13
Section 8.14
SECTION 9. ARCHrrECTURAL CONTROL (
Section 9. I Power of Committe~ ....
Section
Secdon
Section
Section
Secdon
9.2 Duties of Committee ....
9.3 Liability of Committee...
9.4 Inspection ..........
9.5 Membership .........
9.6 Approvals ..........
:OlVIMIITEE
22
22
23
23
23
24
24
SECTION 10.
SECHON l 1.
Section
Section
Section
Section
Section
Secdon
Section
S~:ion
Section
RIGHTS OF MORTGAG~:-; ........................... 24
INSURANCE .......
11.1 Coverage ......
11.2 Property Insurance
11.3 Liability Insurance
11.4 Fidelity Bonds . ..
11.5 Owner Policies...
11.6
11.7
11.8
11..9
Workers' Compensation Insurance .
Directors' and Officers' Liability Insurance
Other Insurance .................
Premiums .....................
.. ;. 26
... 26
.... 26
.... 26
... 26
- iii -
SECTION 12. DAMAGE TO OR DESTRUCTION OF PROPERTY .
Section 12.1 Duty tu Restore ...................
Section 12.2
Section 12.3
Section 12.4
Section 12.5
Section 12.6
Section 12.7
Replacement of Less than Entire Property
Insurance Proceeds .............
Certificates by the Board ............
Cerdficat~s by Attorneys or Title Compames
..27
27
27
27
27
27
28
28
SECTION 13.
Section
Section
RIGHTS TO NOTICE AND I-IF_.AR~G .................... 28
13.1 Right to Notice and Hearlng c~ ........................ 28
13.2 Appeals ..................................... 28
SECTION 14. BOARD OF DIRECTORS ............................. 28
Section 14.1 Powers and Duties ...... ......................... 28
SECTION 15.
Section
Section
Section
OPEN MFh-rlNGS ................................. 30
15.1 Access ...................................... 30
15.2 Notice ...................................... 30
15.3 Executive Sessions .............................. 30
SECTION 16. CONDEMNATION OF COMMON AREA .................. 30
SECTION 17.
Section
Section
Section
ANNEXATION OF ADDITIONAL PROPERTY ............... 31
17.1 Annexation without Approval of Owners ................. 31
17.2 Acquisition of Additional Common Area ................. 31
17.3 Amendment ................................... :52
SECTION 18.
Section
Section 18.2
Section 18.3
Section 18.4
Section 18.5
Section 18.6
Section 18.7
Section 18.8
GENERAL PROVISIONS ...........
18.1 Duration ...............
Amendment of Declaration .. .
Notice .............
Severability ............
Rule Against Perpetuities ...
Gender and Number ......
Construction and Sale .......
Limitation on Declarant's Liability..
32
.32
32
· 33
· 33
. 33
·. 33
.. 33
.. 34
TH/S DECLARATION OF COVENANT.S, CONDITIONS AND .,RESTRICTIONS OF
DELAWARE TRACE (the 'Declaration') Is made this 5~'r"~ day of
'~6F__~ ,1995, by Oak View Associates, 13.C, a~l Indiana limited liability company,
hereinafter referred to as 'Declarant".
W]~-~S, Declarant is the sole owner of the fee simple title to certain real estate
located in Hamilton County, Indiana, more particularly described in Exhibit "A' attached hereto
and incorporated herein by this reference, consisting of approximately 38.86 acres (the "Real
Estate"); and
V~m~.REAS, Declarant desires to preserve t~e character of the Real Estate and to protect
the property values within the Real Estate; and
WItEREAS, Declarant intends to sell the Real Estate restricting it in accordance with a
common plan designed to preserve the value and residential qualities of the Real Estate for the
benefit of its furore owners; and
WHEREAS, Declarant intends to restrict the uses of the Real Estate in accordance with
a common plan as stated in this Declaration; and
WHERY_AS, Declarant has formed (or intends to form) the Association (as defined
herein) for the purpose of carrying out the power and duties aforesaid.
NOW, THE1LEFORE, Declarant hereby declares that the Real Estate, and any additional
property as may by subsequent amendment be added to and subjected to this Declaxation, shall
be held, transferred, encumbered, used, sold, conveyed, leased and occupied subject to the
covenants and restrictions contained in this Declaration which shall 'run with the land" expressly
and exclusively for the use and benefit of the Real Estat~ and of each and every person or entity
who now or in the future owns any portion or portions of the Real Estate and which shall be
binding on all parties having any right, title or interest in the Real Estate. Declarant, for itself
and it successors and assigns, specifically reserves unto itself the right and privilege to include
Additional Land (az defined herein) wiLli},in and subject to, the terms and provisions of this
Declaration by recording a document with the Recorder of Harailton County, Indiana, making
reference to the terms and provisions hereof.
SECTION I. DEFINITIONS. The following terms_used in this Declaration shall have the
following meanings:
Section 1.1 Additional Land. "Additional Land" shall mean and refer to additional real
property now owned or which may in the future be owned by Declarant subject to Declaxant's
unilateral right to annex the same within and subject to this Declaration ax provided elsewher~
herein.
Section 1.2 Association. "Association" means Delaware Trace Homeowners'
Association, Inc., its successors and assigns, a tO' be formed Indiana not-for-profit corporation,
which will be the incorporated association of all Owners in the Real Estate, more panic-l.rly
described in Section 5 of this Declaration.
Section 1.3 Board of Directors. 'Board of Directors* or 'Board" means the governing
body of thc Association elected by the Owners in accordance with the By-Laws.
Section 1.4 Building. *Building* means all structur~ erected on the Real Esta~,
including R~sideaces, garages, accessory buildings, outbuildings, or covered and enclosed
permanent structures of any kind.
Section 1.$ Builder. 'Builder' means the' person, ftrm or entity (including the
DeclaranO constructing the first Residence on each Lot.
Section 1.6 By-Laws. "By-Laws" means the By-Laws of the Association providing for
thc adminiswation and management of the Association.
Section 1.7 Committee. "Committee' means the Architectural Control Committee which
shall be constituted and governed as set out in Section 9 of this Declaration.
Section 1.8 Common Area. *Common Area" means those portions of the Real Estate
designated "C.A." or "Common Area" on the Plat.
Section 1.9 Common Expenses. "Common Expenses" means the expenses of
administration of the Association, expenses for the upkeep, maintenance, repair and replacement
of the Common Area and other costs and expenses incurred by the Association for thc common
benefit of the Owners.
Section 1.10 Declarant. "Declarant" means Oak View Associates, LLC, an Indiana
limited liability company, and any successor or assignee of its interest in all or part of the Real
Estate or in this Declaration under an instrument or instruments which expressly state that the
successor or assignee thereunder shall become the Declarant for purposes of this Declaration.
Section 1.11 Delinquency Date.~ ;'"Delinquency Date" means the date which is t~n (10)
days after the due dam of any Regular or Special Assessment.
Section 1.12 Drainage l:-~ements. "Drainage Easements" means the easemenU labeled
"D.E." on the Plat which have been 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 the
Real Estate, the lands adjoining the Real Estate, and the public drainage system.
Section 1.13 Ingress-Egress Ps~ements. "Ingress-Egress ~=~ements" mean the
easements labeled "I.E." on the Plat which have been created to provide ingress and egress to,
over and from the Real Estate.
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Section 1.14 Lot. *Lot" means one of the numbered lots as shown on the Plat of the
Section 1.15 Mortgagee. "Mortgagee" means the holder of any first mortgage on any
Lot or Residene~ and other improvement constructed on a Lot.
Section I. 16 Owner. "Owner" means a person, rum, corporation, partnership, trust or
other legal entity or any combination thereof, including Declarant, which owns the record fee
simple title to a Lot; provided that persons or entities owning Z single Lot as tenants in common,
joint tenana, ienants by the en~eties or any fonn of joint or divided ownership, shall be deemed
one Owner for purposes of this Declaration, and pro,al, ed further that any per,on holding record
fee simple title for purposes of security only shall b~ excluded.
Section 1.17 Phase. "Phase' means that portion of the Real Estate contained in
individual plat(s) to be recorded as sections of the Real Estate are ready to be conveyed to
individual LOt purchasers.
Section 1.18 Plat. "Plat" means the Master Development Plan of the Real Estate
prepared by Schneider Engineering Corporation attached to this Declaration as ~ and
incorporzted by this reference, the Plat of Phase 1 and the Plats of any subsequent Phases. "Plat
of Phase 1" means the plat prepared by Schneider Engine. a-lng Corporation attached to this
Declaration as Exhibit "C'.~
Section 1.19 Real Estate. "Real Estate" means the real estate described in ~
together with any additions thereto as provided in this Declaration.
Section 1.20 Residence. "Residence" means a single-family dwelling constructed on a
Lot.
Section 1.21 Sewer l:~qements. "Server l=aqements" mean the easements labeled "$.E.'
on the Plat which have b~n created for the use of the utility having jurisdiction over tho storm
and sanita'y waste disposal systems for,the purpose of installation and maintenmce of sewers.
Section 1.22 Vehicle. "Vehicle" means motor homes, motor-powered conveyances,
boats, trailers, campers, motorcycles, scooters, trucks, _vans, tractors, tractor trailers, buses and
automobiles.
SECTION 2. LN G~NERAL.
Section 2.1 Name. The Re~l Estate shall be known and designated as "Delaware
Trace".
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Section 2.2 Residential Development. The Real Estate and each Residence cons~ruc~d
within the Real Estate shall be used by its Owners and occupants exclusively for residential
purposes. No commercial building (rccreational facilities constructed on the Common Area shall
not be considered commercial buildings) shall be erecmi, altered, placed or permitt~i to remain
on any portion of the Real Estate. No business activity or business shall be carried oa or
conducted from a Residence except for home occupations permitted under applicable zoning laws
as approved by the Committee. Leasing of a Residence for residential purposes shall not be
considered ~ business or business activity as long as the lease meets the requirements of this
Declaration applicable to the particular Residence.
Section 2.3 Governmental Restrictions. The~Real Estate and all Lots and Residences
consrrucmd upon Lots shall be subject to the zoning o~dinances and regulations of the applicable
governmental authorities all of which are incorporated by reference.
Section 2.4 Effect on Owners. The Owners of any Lot subject to this Declaration by
acceptance of a deed conveying title thereto or in the execution of a contract for the purchase
thereof, whether from Declarant or a subsequent Owner of such Lot, shall accept such deed and
execute such contract subject to each and every restriction and agreement herein contained. By
acceptance of such deed or execution of such contract, the Owner acknowledges the rights and
powers of Declarant and the Committee with respect to these restrictions and also for
themselves, their heirs, personal representatives, successors, and assigns, such Owners covenant
and agree and consent to and with Declarant and to and with the Owners and subsequent Owners
of each of the Lots affected by these restrictions, to keep, observe, comply with and perform
such restrictions and agreements.
Section 2.5 Owner's ~:~ement of Enjoyment. Every Owner shall have a right and
easement of ingress and egress in ~nd to, and, use and enjoyment of the Common Area, which
shall be appurtenant to and shall pass with the title to every Lot, subject to:
(i) the right of the Association to charge reasonable admission and other fees
for the use of any Common Area and to impose reasonable limits on the number
of guests who may use such facilities;
(ii) the right to suspend use ofany such facilities for any period during which
any assessment for Common Expenses against that Owner's Lot remains unpaid,
and for any violation by an Owner of the-~.ssociation's rules and regulations, for
th~ duration of the violation and for an additional period thereafter not to exceed
thirty (30) days. The Association may suspend the voting rights use of an Owner
for any period during which any assessment against such Owner's Lot remains
unpaid; and for the duration of any violation and for a period thereafter not to
exceed thirty (30) days for any infraction of the Association's published rules and
regulations.
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(iii) the Declarant's reserved easements as described herein and the right of the
Declarant to grant easements in and to the Common Area to any public agency,
authority, or utility for such purposes as benefit only the Development or portions
thereof and Owners or Lots contained therein;
(iv) the right of the Association ~o borrow money for the pu~ose of improving
the Common Area or any portion thereof, for acquiring additional Common Area
or for constructing, repairing, or improving any facilities located or m be located
thereon, and to give as security for the payment of any such loan a mortgage
conveying all or any portion of the Common Area, provided two-thirds (2/3) of
each class of Members shall apprgve; provided, however, the lien and
encumbrance of any such mortgage given by the Association shall be subject and
subordinate to any and all righta, interests, options, easements, and privileges
reserved or established in this Declaration for the benefit of Declaxant or any
Owner, or the holder of any Mortgage, irrespective of when executed, given by
Declarant or any Owner encumbering any Lot or other property located within
the Development; and
(v) the right of the Association to dedicate or transfer all or any portion of the
Common Area to any public agency, authority, or utility for such purposes and
subject to such conditions as may be agreed to by two-thirds (2/3) of the
Members of the Association.
This Section 2.5 may not be amended without the written consent of Declarant during
the time that Declarant owns any property subject to this Declaration.
Section 2.6 Delegation of Use. No Owner may delegate his or her fight of enjoyment
to the Common Area to any other individual without the prior written consent of the Association,
provided, however, an)~ Owner may delegate in accordance with the provisions of ds
Declaration and the rules or regulations of this Declaration and the rules or regulations
promulgated by the Association his right to enjoyment and use of the Common Area and
facilities to a member of his family, his ?.nants or contract purchaser who reside on any Lot.
Section 2.7 Owner's Right to Ingress, Egress and Support. Each Owner shall have the
right to ingress and egress over, upon, and across the Common Area necessary for access to his
or her Lot and shall have the right to lateral support for.his or her Lot, and such rights shall be
appurtenant to and pass with thc title to each LOt.
Section 2.8 Rules and Regulations. The Board of Directors of the Association may
establish reasonable rules and regulations concerning the use of the Common Area, facilities
located thereon, and individual Lots in the Development, as appropriate. Copiei of such
regulations and amendments thereto shall be furnished by the Association to all Owners prior
to the rule's effecti~le date. Such regulations shall be binding upon the Owners, their families,
tenants, guests, invitees, and agents until and unless such regulation, rule, or requirement shall
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be specifically overruled, cancelled, or modified by the Board of D/rectors of the Azsociation
or the Members by two-thirds (2/3) vote of each class of Members. In addition, the
Association, through i~s Board, may, by conwact or other agreement, enforce county ordinances
or permit Hamilton County to enforce ordinances affecting the Development for the benefit of
~ Association and its Members.
SECTION 3. PHYSICAL CHARACTERISTICS OF ~ DEVELOP.
Section 3.1 Ownership of Common Area. The Common Area shall be conveyed to or
owned by the Association as indicated in this Section, and shall be held for the use and
enjoyment of the Owners. All Owners ahall have a n,'.ght and easement of ingress and egress in
and to, and us~ and enjoyment of the Common Area, which right shall pass with title to every
Lot, subject to the provisions of this Declaration including, but not limited to the following:
Section 3.1.1 The Common Area' in each Phase shall be conveyed to the
Association on or prior to the conveyance of the last Lot owned by Declarant in
the particular Phase of the Development to a homeowner or Builder; provided,
however, that expenses relating to the maintenance of the Common Area within
each Phase are to be included within the Association's budget from the time of
conveyance of the first Lot in the particular Phase of the Real Estate.
Section 3.1.2 The Declarant may develop and construct improvements on any
portion of the Real Estate designated as Common Area.
Section 3.1.3 If by reason of inexactness of construction, settiing after
construction or for any other reasons, improvements on any Common Area
encroach upon any LOt, an easement shall be deemed to exist and run to the
Association for the maintenance, use and enjoyment of such Common Area.
Section 3.2 Maintenance of Common Area. The Association shall maintain, repair and
replace all of the Common Area including but not limited to the entry ways, the Iai<es, walking
paths, Delaware Trace signs, community bu'.dding, landscaping, pathways to the Common Areas
between Lots 82 and 83 and between Lots 90 and 91, and any other improvements on the
Common Area in the manner deemed necessary and appropriate by the Board in its sole
discretion and shall provide such other se,vices as the Board shall determine appropriate. Tho
Association shall maintain the rear drainage area along_Lots 3-10 and 166-177.
Section 3.3 Easements. Perpe.';ual and non-exclusive Drainage ~::~ements, Sewer
Easements, and Utility P~ements for the purposes of the installation, maintenance, repair and
replacement of all sewer, water, storm water, power and telephone lines, pipes, conduits,
transformers, or cable television facilities are reserved as shown on the Plat. Ingress-Egress
Easements are also reserved as shown on the Plat. Within these easements, no structure, or
other material shall be placed or permitted to remain which may damage or interfere with the
installation and maintenance of utilities or which may change the direction or flow of drainage
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or which may obstruct or retard the flow of drainage. Plants, trees and other vegetation ~
allowed in the easements subject to any other restrictions on landscaping contained in this
Declaration or any other Declaration applicable to the Real Estate.
Section 3.4 Streets. Until acceptance by the appropriate governmental unit, all streeLs
within the Real Estate shall be considered to be Common Area.
Section 3.5 Underground Utilities. All utilitie~ including but not limited to water, gas,
electric, sewer and cable television shall be installed underground.
Section 3.6 $idew~lk~. Sidew~l','~ no less than four (4) feet in width shall be construc~l
across that portion of each Lot which is considered to be the front, and the installation and
maintenance of said sidewalk shall be the responsibility of each individual Lot Owner.
sidewalks shall be fully completed and available for use not later than the ate of initial
occupancy of such Residence.
Section 3.7 Declaram's Reserved l:~ement. No~withstanding any provisions contained
in the Declaration to the contrary, Declarant hereby expressly reserves unto itself and ils
successors and assigns a nonexclusive, perpetual right, privilege, and easement with respect to
any property in the Real Estate, for the benefit of Declarant and its successors and assigns over,
under, in, and on the Real Estate, without obligation and without charge to Declarant, for the
purposes of construction, installation, relocation, development, sale, maintenance, repair,
replacement, use and enjoyment and otherwise dealing with the Real Estat-' and any other
property now owned or which may in the future be owned by Declarant. The reserved easement
shall constitute a burden on the title to all or any portion of the Real Estate and speciiically
includes, but is not limited to:
(a) the right of access, ingress, and egress for vehicular and pedestrian traffic over,
under, on, and in all or any portion of the Real Estate; and the right to tie into any
portion of the Real Estate with driveways, parldng areas, streets, the drainage system and
walkways; and the right to tie into and/or otherwise connect and use (without a tap-on
or any other fee for so doing), repJace, relocate, maintain, and repair any device which
provides utility or similar services, including, without limitation, electrical, telephone,
nammi gas, water, sewer, and drainage lines and facilities constructed or installed in, on,
under, and/or over all or any portion of the Real Estate;
(b) the right to construct, install, replace, relocate, maintain, repair, use and enjoy
signs, model residences, sales offices, construction offices and business offices as, in the
sole opinion of Declarant, may be required, convenient or incidental to the construction
and sale by Declarant of residences in alt or any portion of the Real Estate or in any
portion of the Additional Land;'and
(c} the right to m~tain a .~les and marketing office for the Re~l Estate within the
Common Area without cost to Declarant untLl Declm-ant no longer owns any Lots in the
Real Estate.
No rights, privileges, and easements granted or re~erved herein ~ be merged into *he
fide of any property within the Real Estate, but shall be held independent of such title, and no
such fight, privilege, or easement shnll be surrendered, conveyed, or released unle~ and un~
and except by delivery of a quitclaim deed from Declm~nt re~,~ing such right, privilege, or
easement by express reference thereto with re.~pect to all or any portion of the Real Estate.
Declarant may grant to a builder of Lots within the Real Estate similar rights as granted to
Declarant under (b) and (c) above. ~?
This Section 3.7 may not be amended without the advance written consent of Declarant
as long as Declarant owns one or more Lots.
SECTION 4. CONSTRUCTION PROVISIONS.
Section 4.1 One Residence. Only one Residence shall be constructed on any Lot.
Section 4.2 Minimum Residence S~ze. l~:~ch Residence in the Real Estate shall contain
at least three (3) bedrooms and two (2) full bathrooms. The following minimum siTe_~ shall
apply to each Residence consu'uc~l on a Lot:
Section 4.2.1 One story Residences shall have finished ground floor area of not
less than 2000 square feet above f'mished grade.
Section 4.2.2 Two-story Residences shall have a finished ground floor area of
not less than 1400 square feet above f'mished grade and a total f'mished area of
not less than 2200 square feet above finished grade.
For purposes of this Section 4.2, ground floor area shall be determined from the area of
the Residence measured from the outside of the building foundations exclusive of open porches,
breezeways, garages, chimneys and eaves.
The provisions of this Section 4.2 may be waived by the Committen upon application in
writing by any Lot Owner. No waiver will be valid un. less and until it is properly signed b.y a
member of the Committee and placed of record in the Office of the Recorder of Hamilton
County, Indiana.
Section 4.3 Maximum Height. No single family Residence exclusive of chimney shall
exceed twenty-five (25) feet in height measured from the lowest finished grade level at the front
of the Residence's foundation visible from any street to the underside of the eave line of the
roof.
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section 4.4 Construction of Sewage Lines. All sanit,~ry sewer lines within th~ Lot~ shall
be designed and constructed in accordance with the provisions and requirements of Cannel,
Indiana.
Section 4.$ Setback. No Residence, Building or other permanent structure shall b~
located on any Lot nearer to the boundaries of the Lot than the minimum setback lines as shown
on the Plat or the setback restriction in effect at the time of construction as established by
Carmel, Indiana, if any, whichever is morc restrictive. For the purposes of this covenant,
e~ves, steps and open porches sh~ll not be considered as part of a Residence; provided,
however, that this provision shall not be construed to permit any portion of a Residence on a Lot
to encroach upon any other Lot in the Real Estate. ~ '
Section 4.6 Prohibited Building S~yles. Modular construction or modular homes will
not be permitted upon any Lot in the Real Estate. No used Residences will be relocated or
placed on any Lot with the exception of cons~'ucdon and sales offices to be maintained by
Declarant. No Residence shall be constructed with used materials. The finished exterior of
every Residence constructed or plac~ upon a Lot shall be of a masonry or wood product
material.
Section 4.7 Minimum Exterior Brick Requizements. The finished front exterior of every
Residence shall have a minimum of thre~ hundred (300) square feet of brick or other masonry
material approved by the Committee. All exterior fLreplace chimneys or flrephc~ flues mu~t
have a brick exterior unless another material is approved by the Committee.
Section 4.8 Solar Devices. No artificial or manmade device which is designed or used
for collection of or heated by solar energy or other similar purpose shall be placed, allowed or
maintained upon any portion of the Re~ Estate including any Residence without the consent of
the Committee.
Section 4.9 Antennas and Towers. No television, cable, radio, short-wave or other
antenna, pole or tower shall be placed, constructed or maintained upon the roof or exterior walls
of any Residence, or within the Real Esgte, without the consent of the Commiuee.
Section 4.10 Garbage Disposals and Saniuu'y Sewer, Water. All Residences shall be
equipped with a mechanical device for the grinding and disposal of garbage and food wast,, in
the kitchen(s) which shall discharge to the sewer drein..All sewage disposal shall be connected
with the sanitary sewer system of the utility providL~.g such service to the Real Estate. No septic
tanks, holding tanks or cesspools shall be construe:ed or permitted to remain anywhere within
the Real Estate. No private or semi-private water supply system may be located anywhere
within the Real Estate. Each Owner shall conn,: to domestic water service provided by a
public or private utility company and shall pay ,"l connection, availabilRy or other charges
lawfully established with respect to such connection.
Section 4.11 Fences, Mailboxes and other Structures. La order to preserve the natm'al
quality and aesthetic appearance of the existing geographic areas within the Real Estate, any
fence, flag pole, basketball goal or similar structure must be approved by the Committen as to
size, location, height and composition before it may be installed. *:~'h Residence shall be
provided with a mailbox to be famished and installed by the Declarant. All mailboxes shall be
of the same design and approved by the Committee. No names, designs or other ornamentation
shall be placed on any mailboxes or their supporting postq or structures other than street address
numbers. No wall, fence, hedge or shrub planting which obstructs sight lines at elevations
above two (2) feet shall be placed or permitted to remain between the front property line and
the front building setback line except where such shrub planting is approved by the Commi--?j
No Fences shall be allowed except whom required by'la~ and/or approved by the Committee.
The intent is not to allow fences except for small privacy fences. No fencing shall bo permitted
along the frontage of Hazel Dell Road. No outdoor pet enclosures of any kind except for
'invisible fences' (underground, electronic or otherwise) shall be permitted without prior
approval of the Committee.
Section 4.12 Light Fixtures. Each Residence shall have at least one wall bracket light
fixture adjacent to the main entry door. Each Residence shall have at least one post light
adjacent to the driveway-sidewalk intersection.
Section 4.13 Exterior Construction. The following requirements shall be applicable
unless the Committee shall approve otherwise:
(a) all utility facilities in the Development will be underground except wher,' required
to be placed above-ground by the individual utility supplier;
0a) whenever possible, all utility meters and HVAC units in the Real Estate will be
located in places unseen or screened from the front of the Residences;
(c) no outside fuel storage tanks will be permitted above or below ground in the Rcal
Estate;
(d) all windows in the Real Estate will be factory or on-the-job painted; no law
aluminum windows will be permitted;
(e) all gutters and down spouts in the Re~ Estate will be factory or on-the-job
painted;
(f) all roof pitches of Residences shall be six to twelve (6:12) or g~eater, and there
shall be at least one (1) gable end on the front building elevation unless otherwise
permitted by the Committee;
(g) no metal, fiberglass or similar type material awnings or patio covers will be
permitted within thc Real Estate; - -
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(h) no above-ground swimming pools will be permitted anywhere within the Real
(i) each Residence shall have at least a two-car garage attached to the l~'sidence of
the same architectural design and materials, and with a finished dx7 wall interior.
Garage doors may be placed so that they do not face the same direction a the front entry
of the Residence. Each Residence must install automatic garage door openers to keep
the garage generally closed and the contents not in view; and
(j) driveways must be concrete, no less than sixteen (16) feet in width and extend
from their point of connection with the abutting street or road to a point of conneclion
with the garage entry.
Section 4.14 Submission of Documents. No Residence, Building or other permanent
structure shall be erected, placed or altered on any Lot until the construction plans and
specifications, landscaping plan, and a plan showing the location of the structure upon the Lot
have been approved by the Committee as to quality of workmanship and materials, harmony of
external design with existing structures, and as to location with respect to topography and
finished grade elevation. Approval or disapproval as required in these covenants by the
Committee shall be in writing. In the event the Committee fails to approve or disapprove any
plans and specifications wifltin thirty (30) days after such plans and specifications have been
submitted to it, or in any event, if no suit to enjoin the construction has been commenced prior
to the completion thereof, approval will not be required, and the related covenants shall be
deemed to have been complied with fully.
Section 4.15 Responsibilities During Construction.
Section 4.15.1 When the basement and/or foundation of a Residence is
constructed, stone shall be installed over the path of the driveway and shall be
level with the curb at the Lot line to avoid curb breakup.
Section 4.15.2 No trackz,~ehicles or heavy equipment vehicles shall be operated
or unloaded on any street.
Section 4.15.3 No construction vehicles, shacks or outhouses shall be erected or
situated on any Lot herein, except for ..use by a Builder during construction of a
proper structure, which Builder's temporary construction structure shall be
promptly removed upon completion of the proper structure.
Section 4.15.4 During the construc~on period, the Lot shall be maintained in a
clean and orderly manner at all times. All loose shingles, lumber, bricks, block,
drywall, insulation, or other building mate.iai which can blow onto adjacent Lots
shall not be left lying around. Construction ~r,,.sh shall be contained in a U'ash
fence and shalt be removed from the Lot once per we~k or contained in a dump
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sit~ on si~ provided by a wash disposal service which will empty ~he con~ner
as needed.
seCtion 4.15.5 The Lot Owner shall be responsible for removal of din, mud, or
debris or other foreign material of any kind which may be deposited upon the
road or easements from construction on the Lot. If such deposits occur, the Lot
Owner shall make provisions to remove such deposits within one (1) day or the
Committee may remove such deposits and charge the Lot Owner.
Section 4.15.6 All Utility services m the Lot, including but not limited m water,
pow.er, sanitary sewers, ~ephone anf!~cable, shall be shown on the plat and said
se. rv~ce shall not undermine the cubs'or alter the subsuffac~ or surface drainage
system.
Section 4.16 Drainage. The drainage plan required to be submitted to the Commit~e
shall show the topography of the Lot and the proposed method of drainage. In the event that
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 provid~ on the Plat. To the extent not maintained
by the drainage board or by the Association as provided in this Agreement, 'Drainage
~:s,ements" reserved as drainage swales shall be m~intalned by the Owner of the Lot upon which
such easements are located such that water from a'~y adjacent Lot shall have adequate drainage
along such swale. 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 down spouts shall not be discharged into strec:s 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.
Section 4.17 1 ~ndscaping. All landscaping within the Real Estate shall comply with the
municipal code of Carmel, Indiana. No landscaping shall be permitted on any Common Area
except with the approval of the Commltte~. The front yards of all Lots must be sodded, and
side and rear yards must be seeded and cover~ with straw. The front yards of all Residences
must be landscaped, and plans for all landscaping visible from the street must be submitted to
and approved by the Committee. All front y~rd landscaping, and the sodding, s~ding and
stowing of the Lot, shall be installed by the Builder concurrently with the construction of the
Residence and shall be installed not later than the date of initial occupancy of the Residence;
provided, however, that if construction of the Residence is completed or initial occupancy occurs
between November I of any year and March 31 of the next following, the installation of the
landscaping may be delayed, but shall in any event be completed not later than the following
May 3 l.
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SECTION 5. lV~MBERSI:rrP IN THE ASSOCIATION.
Section 5.1 The Organization. The Association is a non-profit corporation organized
under thc laws of the State of Indiana. Its affairs shall be governed by and it shall have such
powers as ar~ set forth in the documents. It is the Association of Owners within Delaware
Trace.
Section 5.2 Membership. Each Owner (including Declarant for so long as Declaxant is
an Owner) by virtue of being an Owner, shall be a Member of the Association. No other person
shall be accepted as a Member.
Section 5.2.1 Appurtenant to Owners~p. Association membership is appurtenant
~o and may not be separated from the ownership of a Lot. Membership shall
terminate upon termination of Lot ownership. Ownership of a Lot shall be the
sole qualification for Association. membership. Membership shall not be
transferred, pledged or alienated in any way except upon transfer of title to the
Owner's Lot (and then only to the transferee of title to such Lot). Any attempt
to make a prohibited transfer is void. The rights, duties, privileges and
obligations of all Members shall be provided in the documents.
Section 5.3 Classes of Membership. The Association shall initially have two (2) classes
of Members:
Section 5.3.1 Class "A* Members. Each Owner except Declarant shall be a
Class "A" Member. Only one (1) vote for each Lot owned by a Class A
Member(s) may be cast. The vote for each Lot shall be cast as a majority of co-
owners of the Lot shall determine. Any vote cast by a single Member shall be
d~med the authorized vote for the Lot. If the majority of co-owners present in
person or by proxy at a meeting cannot agree as to how to cast the vote for their
Lot, no vote shall be cast for that Lot. The power to cast a particular Member's
vote may be exercised by (i) the Member's conservator; (ii) the guardian of his
estate; (iii) the parent(s) entitled to custody of a Member if the Member is a
minor; or (iv) the executor or adminisu-'ator of a deceased member's estate if the
Member's interest in the Lot is subject to administration in his estate.
Section 5.3.2 Class "B' Members. Declarant shall be the sole Class "B'
Member. The Declarant shall be entitled to three (3) votes for each Lot it owns.
Class B membership shall expire and shall be converted (the 'Control Transfer
Date") to Class A Membership on the first to occur of the following events:
(a) When the total votes outstanding in Class A membership equals the
total votes outstanding in Class B; or,
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(b) When in its sole discretion the Declarant shall determine.
Section 5.3.3 Conversion of Class B Membership. Upon the conversion of Class
A Membership to Class B Membership, but while Declarant still owns one or
more lots, each provision of the documents which requirea approval by a ce-,laln
percentage of each class of Members shall instead require: (i) the approval of
said percentage of all Members; and (ii) the approval of said percentage of all
Members other than Declarant. After Declarant no longer owns a Lot, ea;h
provision of the documents which requires the approval of a certain percentage
of each class of Members shall instead require the approval of said percentage of
all Members.
£?
SECTION g. I?V.~TRICTIONS ON ~ USE OF ~ RF_AL ESTATE.
In order to pre.serve the character of thc Real Estate and to protect the property values
therein and without intending to limit the generality of the foregoing provisions, the following
protective covenants and resu4ctions are imposed as a common scheme upon the Real Estate and
shall be applicable to each Lot and to each Residence constructed upon a Lot within the Real
Section 6.1 Parking. No vehicle nor any inoperable vehicles shall be parked for storage
overnight or longer in such a manner as to be visible to occupants of the Real Es~te or the users
of any public street within the Real Estate, provided, however, that nothing herein shall prevent
the parking of operable automobiles in the driveway of a Residence. All commercial veMcles
must be parked overnight within an enclosed garage. No boats, campers, trailers of any kind,
buses, mobile homes, trucks or any other unconventional vehicles of any description shall be
permitted, parked or stored anywhere within the Real Estate; provided, however, that nothing
herein shall prevent the parking or sterage of such vehicles completely enclosed v. ithin a garage.
Section 6.2 Temporary Structures. No Residence sh~!l be occupied prior to completion,
and there shall be no temporary living quarters constructed within the Real Esaue.. No trailer,
basement, tent, shack, detached garage, barn, shed or o~her outbuilding shall be er~ted on any
Lot without prior approval of the Committee, and no such structure, if approved, shall at any
time be used as a residence, temporarily or permanently, nor shall any structure of a temporary
character be used as a Residence. The restrictions of this Section 6.2 shall not be construed so
as to prohibit the Declarant from maintaining a temporary, construction and sales office as
referenced in Section 4.6 of this Declaration.
S~tion 6.3 Animals and Pets. No animals, livestock or poultry of any kind may be
raised, bred, kept or permitted on any Lot with the exception of dogs, cats or other usual and
common household pets in reasonable number. No pets shall be kept, br~ or maintained for
any commercial purpose. Dogs which are household pets shall be confined on a leash at all
times whenever they are outside a Residence. Each Owner shall be responsible for removal of
· his or her pet's waste from Common Ar ~eas.
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Section 6.4 Nuisance. It shall bc the responsibility of each Owner of a Residence to
prevent the development of any unclean, unhealthy, unsightly, or unkempt condition of thc
Owner's Residence. No Residence shall be used, in whole or in pan, for the storage of any
property or thing that will cause such Residence to appear to be in an unclean or untidy
condition or that will be obnoxious to the eye; nor shall any substance, tiring or material be kept
upon any Residence that will emit fowl or obnoxious odors or that will cause any noise or other
condition that will or might disturb the peace, quiet, safety, comfort, or ~afety of the occupants
of any Residence or Lot, nor shall anything be done thereon tending to cause embarrassment,
discomfort, annoyance, or nuisance to any person using any property adjacent to the Residence.
There shall not be maintained any plants, animals, device, or thing of any sort whose activities
or existence in any way is noxious, dangerous, uns, ightly, unpleasant, or of a nature as may
diminish or destroy the enjoyment of the Real Estate. Yard incinerators for the disposal or
burning of tralh shall not be permitted anywher~ within the Real Estate. No firearms or hunting
weapons of any kind shall be used anywhere within the Real Estate.
Section 6.$ Garbage Cans, Woodpiles, Etc. All garbage cans, woodpiles, and other
similar items shall be located or screened so as to be concealed from view of the neighboring
Residences, streeLs, and other living quarters located adjacent to the Residence. Firewood piles
shall be kept neat and unobtrusive. The Committee has the authority to deR-mine the location
of any firewood piles. All rubbish, trash, and garbage shall be regularly removed from the
Residence and shall not be allowed to accumulate thereon. The Association shall provide regular
trash collection and removal.
Section 6.6 Signs. No sign of any kind, including any "For Sale" signs, shall be milled
to any tree or attached to any street sign within the Real Estate. No sign of any kind shall be
displayed to the public view upon any Lot or otherwise within the Real Estate except (i) one
family name sign of not more than 144 square inches in area, (ii) any signs utilized by the
Declarant or approved by the Committee for use by the Builders, or (iii) a sign limited in size
to 24 inches by 36 inches containing the words "For Sale" or "For Rent" indicating the name
of the seller, seller's agent or lessor and phone number.
Section 6.7 Subdivision of a Lot. There shall be no subdivision of any Lot within the
Real Estate nor any sale thereof in parci'ls except that a portion of a Lot may be soM to an
adjoining Lot if no new Lot is created and if the u"ansferor obtains the prior written approval
of the Committee. The se:back requirements set out in Section 4.5 cannot be waived.
Section 6.8 Trash Receptacles. Every receptacle for ashes, u'ash, rubbish or garbage
shall be so placed and kept as not to be visible from any street within the Real Estate at any
time, except at the times when refuse collections are made.
Section 6.9
refining, quarrying,
Estate. nor shall oil
Drilling and Exploration. No'oil drilling, oil development operations, or
or mining operations of any kind shall be permitted upon or within the Real
wells, tanks, tunnels, mineral' excavations, nor shafts be permitted upon or
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in any LoL No derrick or other structure designed for use in boring for oil or natural gas shall
be erected, maintained or permitted upon any Lot.
Section 6.10 Ditches and Swales. It shall be the duty of every Owner of every Lot on
which any pan of an open storm drainage ditch or swale is situated to keep such portion thereof
as may be situated upon his Lot continuously unobstructed and in good repair, and to provide
for the instal!ation of such culverts upon said Lot as may be reasonably necessa~ to accomplish
the purposes of this subsection, except to the extent provided in Section 3.2 hereof. All Lot
Owners, if necessary, shall install dry culverts between the road fights-of-way and their Lots in
conformity with specifications and recommendations of the Committee.
£?
Section 6.11 Line of Sight. No fence, wall, hedge, or shrub planting which obstructs
sight lines at elevations between two (2) and six (6) feet above any strut, public or private, shall
be placed or permitted to remain on any comer Lot within the triangular area formed by the
su:eet boundaries and a line connecting them at points twenty (20) feet from the intersection of
the street lines, or in the case of a rounded property comer, from the intersection of the street
property lines extended. No tre~ shall be permitted' to remain within such distance of such
intersection unless the foliage line is maintained at sufficient height to prevent obstruction of
such sight lines.
Section 6,12 Damaged Structures. No Residence which has been partially or totally
destroyed by fire or otherwise shall be allowed to remain in such state for more than three 0)
months from the time of such destruction or damage.
Section 6.13 Clotheslines. Outdoor clotheslines ~re prohibited.
Section 6.14 Playground Equipment. All playground equipment must be approved for
safety, placement and aesthetics by the Committee prior to installation. The color, size and
location of playground equipment will be factors in determining if the playground equipment is
approved.
Section 6.15 Outside Burning. N~ trash, leaves, or other material shall be burned upon
a Lot.
Section 6.16 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 nuisance or annoyance to other owners and shall only be operated when outside
activities require the use thereof and not continuously.
Section 6.17 *faintenance of Lots and Improvements. The Owner of any Lot shall at
all times maintain the Lot and any Residence, Building or other structures situated thereon in
such manner as to prevent the Lot, Residence, building or other structure from becoming
unsightly. The Lot Owner shall keep the exterior of the Residence, Buildings, and other
structures in such a state of repair or maintenance as to avoid their becoming unsightly.
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Section 6.18 Maintenance of Common Area. The Owner of any Lot shall at all times
refrain from creating any condition that reasonably tends to detract from or diminish the
aesthetic appearance of the Common Areas.
Section 6.19 The Owner of any Lot sb.l! do the following:.
Section 6.19.1 Mow the Lot at such tlme~ as may reasonably be required in
order to prevent the unsightly growth of vegetation and weeds and exercise good
husbandry with respect to all landscaping located thereon.
Section 6.19.2 Remove all debris or/rubbish from the Lots.
Section 6.19.3 Prevent the existence of any other condition that reasonably tends
to deU'act from or diminish the aesthetic appeamuce of the Real Estate.
Section 6.19.4 Maintain the tree plot and landscaping between the sidewalk and
any public street adjacent to the Owner's Lot.
Section 6.19.5 Maintain the tree plot and landscaping, if any, between the
Owner's LOt and the curb of any public street adjacent to the Owner's Lot.
SECTION 7. ENFORCI~,'vgENT.
The provisions of this Declaration shall be liberally construed to effect the purpose of
creating a uniform plan for the development and operation of the Real Estate. In the event that
any Owner fails fully to observe and perform the obligations set forth in this Declaration, and
in the further event that such failure is not cured within thirty (30) days after written notice of
the same is given by the Committee or the Board of Directors, to such Owner, the Commimm
or the Board of Directors shall have the fight to commence judicial proceedings to abate or
enjoin such failure, and to take such further action as may be allowed at law or in equity to
correct such failure ~ter commencement of such proceedings. If the Committee, or the Board
does not take action after receiving noticg, then any Owner is entitled at the Owner's expense
to pursue any available legal remedy to 'enforce this Declaration. In the event that such failure
causes or threatens to cause immediate and substantial harm to any property outside of such
defaulting Owner's LOt or to any person, the Committee or the Board of Dir~tors shall have
the right to enter upon such Lot for the purpose of correcting such failure and any harm or
damage caused thereby without any liability whatsoever on the pan of the Committee or the
Board of Directors. The failure or forbearance by the Committee, the Board of Directors, or
an Owner to enforce any covenant or restriction herein contained shall in no event be deemed
a waiver of the fight to do so thereafter. There shall be and there is hereby created and declared
to be a'conclusive presumption that any violation or breach or any attempted violation or breach
of any of the coven~ts or restrictions contained in this Declaration cannot be adequately
remedied by an action at law and that injunctive relief is appropriate. Ail costs incurred by the
Committee or the Board of Directors in connection with any act or proceeding undertaken to
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abate, enjoin, or correct such failure, including attorney's fees, shall be payable by the
defaulting Owner upon demand by the Committee or the Board of Dizectors, and shall
immediately become a lien against his Lot. However, no lien under this section shall be
superior to (a) a lien, encumbrance, or secured interest recorded before the recordation ora lien
under this section, (b) a lien for real estate taxes and other governmental ~ssessments or charges
against the Lot, or (c) any purchase money mortgage. The rights in the Owner~, the Committee
or the Board of Directors under this section shall be in addition to ail other enforcement rights
thereunder or at law or in equity.
SECTION 8. ASSESSlVI~ AND COT.T.~CTION OF COMMON ~YPENSF_.S.
Section 8.1 Payment of Regular Assessments. Regular Assessments foreach fiscalyear
shall be established when the Board approves the budget for that fiscal year, which shall be at
least ti'flay (30) days in advance of each annual axsessment period. Regular Assessments shall
be levied on a rise. al year basis. There shall be Regular Assessments based on the services
provided by the Association and the reserves needed for Common Area expenses.
Unless otherwise specified by the Board, Regular Assessments shall be due and payable
in monthly installments by each Lot Owner on the first day of each month during the term of
this Declaration. Regular Assessments shall commence as to each Lot on the fiat day of the
month following the conveyance of such Lot by the Declarant to an Owner. Until lanuay 1 of
the year immediately following the conveyance of the first Lot in the Real Estate to an Owner,
the maximum annual Regular Assessment shall be $ 5 5~'~ 5,q/' per Lot.
S~tion 8.2 Budgeting. Regardless of the number of Members or the amount of asset~
of the Association, each year the Board shall prepare, approve and make available to each
Member a pro forma operating statement (budget) containing: (i) estimated revenue and expense
on an accrual basis; (ii) the amount of the total cash reserves of the Association currently
available for replacement or major repair on Common Area and for contingencies; (iii) an
itemized estimate of the remaining life of, and the methods of funding to defray repair,
replacement or additions to, major components of the Common Area; (iv) a general statement
setting forth the procedures used by th?.jBoard in the calculation and establishment of reserves
to defray the costs of repair, replacement or additions to major components of the Common
Area. Written notice of the Regular Assessment shall be sent to every Owner. The total amount
of expenses common and chargeable to all Owners shall be charged equally against all Lots in
the Real Estate as Regular Assessments, with each Lot.being responsible for a portion of the
total amount of Regular Assessments based upon the amount resulting from multiplying the total
amount of Regular Assessments by a fraction, the numerator of which is 1 and the denominator
of which is the total number of Lots actually platted, subject to the limitations set forth in the
By-Laws. Each year the Board shall prepare and approve the budget and distribute a copy
thereof to each Member with written notice of the amount of the Regular Assessment to be
levied a::ainst the Owner's Lot not less than thirty (30) days prior to the beginning of the fiscal
year. Tae Regular Assessment shall not increase in any fiscal year by more than the greater of
(i) 8%, or (ii) the percentage increase in the Consumer Price Index (all items) from the end of
the preceding fiscal year to the end of the month prior to the establishment of the annual budget,
without the approval of two-thirds (2/3) of the Members.
Section 8.3 Non-Waiver of Assessments. If before the expiration of any fiscal year the
Association fails to f~x Regular Assessments for the next fiscal year, the Regular Assessment
established for the preceding year shall continue until a new Regular Assessment is fixed.
Section 8.4 Exemptions from Assessments. Declarant is exempt from payment of all
Regular and Special Assessments so long as Deciaxant remains fully responsible for all c~mmon
expenses not covered by the Regular and Special Assessments collected from Lot Owners other
than Declarant.
Section 8.5 Special Assessments. Subject to the limitations in the By-Laws, Spec~
Assessments may be levied in addition to Regular Assessments for (i) constructing capital
improvements; (ii) correcting an inadequacy ~n the Current Operation Account; (iii) defraying,
in whole or in part, the cost of any construction, reconstruction, unexpected repair or
replacement of improvements in the Lot(s) or Common 'Area; or (iv) paying for such other
matters as the Board may deem appropriate for the Real Estate. Special Assessments shall be
levied in the same manner as Regular Assessments. Regular Assessments and Special
Assessments may be referred to herein together or individually as an "Assessment*.
Section 8.6 Common Expenses Attributable to Fewer Than All Lots.
(a) Any Common Expense for services provided by the Association to any individual
Lot at the request of the Lot Owner shall be assessed against the Lot which benefits from
such service.
(b) Any insurance premium incr-~ase to the Association attributable to a partic~fl:~r Lot
by virtue of activities in or construction on the LOt shall be assessed against that Lot.
(c) An assessment to pay a judgment against the Association may be made only
against the Lots at the time the judgment was entered in proportion to their Common
Expense liabilities. ~ ~
(d) If a Common Expense is caused by the misconduct of a LOt Owner, the
Association may assess that expense exclusively_against tho Owner's Lot, to the extent
responsible under the laws of the State of Indiana.
(e) Fees, charges, late charges, fines, collection costs, and interest charged against
a Lot Owner pursuant to the documents are enforceable as Regular Assessments.
Section 8.7 Lien.
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(a) Any Ass~sment shall be deemed delinquent ten (10) days after its due date. The
Association shall have a lien on a Lot for a delinquent Assessment levied against the Lot
or frees imposed against its Lot Owner from the time the Association records a Notice
that the Assessment is delinquent. If an Assessment is payable in installments, the full
amount of the Assessment is delinquent if not paid to the Association within ten (10) days
of the due dam of the installment.
(b) A lien under this Section is prior to all other liens and encumbrances on a Lot
except: (l) a lien, encumbrance, or secured interest recorded before the recorrl.tlon of
the Notice referenced in subsection 8.6(a) above; and (2) liens for rent estate taxes and
other governmental assessments or charges agifigst the Lot, and (3) any purchase money
mortgage.
(c) Recording of a Notice of Delinquency constitutes record notice and perfection of
the llen. Further recording of a claim of lien for Assessment under this Section is not
(d) A lien for an unpaid Assessment is extinguished unless proceedings tn enforce the
lien are instituted within three (3) years after the Notice is recorded; provided, that [fan
Owner of a LOt subject to a lien under this Section fries a petition for relief under the
United Stat.es Bankruptcy Code, the period of time for instituting proceedings to enforce
the Association's lien shall be tolled until thirty (30) days after the automatic stay of
proceedings under Section 352 of the Bankruptcy Code is lifted.
(e) This Section does not prohibit an action to recover sums for which Subsection (a)
of this Section creates a lien.
(f) Any steps taken by the Association to collect sums due or to enforce a lien under
Ikis Section shall entitle the Association to add to the amount due its costs and reasonable
attorney's fees plus interest on all delinquent sums at the rate of 10% per year.
fi) A judgment or decree in an action brought under this Section is enforceable by
execution under the laws of the 'S'tate of Indiana.
(h) The Association's lien may be foreclosed at such time as a mortgage on real estate
is foreclosed and in the manner in which mechanic's liens are foreclosed under Indiana
law.
(i) In any action by the Association to collect Assessments or to foreclose a lien for
unpaid Assessments, the court may appoint a receiver of the Owner to collect all sums
alleged to be due from that Owner prior to or during the pendency of the action. The
court may order the receiver to pay any sums held by the receiver to the Association
during the pendency of the action, to the extent of the Association's Regular Assessment
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based on a periodic budget adopted by the Association pursuant to Section 8.2 of this
Declaration.
(j) Any payments received by the Association in the discharge of an Owner's
obligation may be applied to the oldest balance due.
Section 8.8 Ratification of Non-budgeted Assessments. If the Board votes to levy an
Assessment not included in the current budget in an mount greater than fifu~n percent (15%)
of the current annual operating budget, the Board shall submit such Common Expense to the
Owners for ratification in the same manner as a budget.
Section 8.9 Certificate of Payment of Assessments. The Association upon written
request shall furnish to an Owner a statement in recordabl¢ form setting out the amount of
unpaid Assessments against the Owner's Lot. The statement must be furnished within ten (10)
days alter receipt of the request and is binding on'the Association.
Section 8.10 No Waiver of Liability for Common Expenses. No Owner may exempt
himself or herself from liability for payment of Common Expenses by waiver of the use or
e,njoyment of the Common Area or by abandonment of the Lot against which the assessments
are made.
Section 8.11 Personal Liability of Owners. The Owner of a Lot at the time an
Assessment or portion thereof is due and payable is personally liable for the Assessment.
Personal liability for the Assessment shall not pass to a successor in title to the Lot unless he
or she agrees to assume the obligation,
Section 8.12 Accounts. Assessments collected by the Association shall be deposited into
at lea~t two (2) separate checking accounts with a bank and/or savings and loan association,
which accounts shall be clearly designated as (i) the Current Operation Account and (ii) the
Reserve Account. The Board shall deposit those portions of the Assessments collected fo/'
current maintenance and operations into the Current Operation Account and shall deposit those
portions of the Assessments collected on reserves or contingencies and for replacement and
deferred maintenance of capital impruven{ents into the Reserve Account.
Section 8.13 Current Operation Account. All of the following may be paid from the
Current Operation A.ccount: _
(a) All costs of enforcing the provisions of any Declaration applicable to any portion
of the Real Estate;
Co) Taxes and assessments, if any, levied or assessed separately against the Common
Area;
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(c) Sums necessary to discharge any lien or encumbrance, including taxes, levied
against any Lot which constitutes a lien against a portion of the Common Area;
(d) Insurance premiums and costs for policies purchased for the benefit of the
Association;
(e) Water, sewer, garbage, trash, electrical, gas, telephone and other necessary utility
sexvices for the Common Area;
(0 Costs of routine maintenance, repair and upkeep of improvements in the Common
Area; and, (. ~
(g) All other goods, materials, supplies, furniture, labor, services, maintenance,
repairs or alterations which the Association is authorized to secure and pay for pursuant
to the terms of this Declaration or by law other than those to he expended from the
Reserve Account.
Section 8.14 Reserve Account. The Association shall pay out of the Reserve Account
only those costs that are attributable to the maintenance, repair, or replacement of capital
improvements for which reserves have been collected and held. No portion of a reserve
designated for a particular capital improvement may be expended for any purpose other than the
maintenance or replacement of that capital improvement; provided, however, that if due to
dedication of a public street or annexation of the Real Estate such that the municipality accepts
responsibility for items covered by a portion of the reserve, the Board shall determine whether
to use sucl~ funds for another purpose or to refund the excess to the Owners having title to a Lot
at the time of the proposed refund; however, there is no implied guarantee or promise that such
refund will be made. Except for funds collected for contingencies, no funds collected for the
Reserve Account may be used for ordinary current maintenance and operation purposes.
SECTION 9. ARCHITECTURAL COhTROL CO~LAIITTEE.
Section 9.1 Power of Committee.
,_/
Section 9.1.1 In General. In order to preserve the natural quality and aesthetic
appearance of the existing geographic ar~, no Residence, building structure, or
improvement of any type or kind shall be.repainted, constructed or placed on any
Lot in the Real Estate, no existing trees shall be removed and no landscaping
placed on Common Area without the prior written approval of the Architectural
Control Committee (the "Committee"). Unless the Committee waives these
requirements, such approval shall be obtained only after written application has
been made to the Committee by the Owner of the Lot requesting authorization
from the Committee. Such written application shall be in the manner and form
prescribed from time to ~me by the Committee and shall be accompafiied by two
(2) complete sets of plans and specifications of any such proposed construction
- 22 -
or improvement. Such plans shall include the location of all impwvements
existing upon the Lot and the location of the improvement proposed to be
constructed or placed upon the Lot, each properly and clearly designated. Such
plans and specifications shall set forth the color and composition of all exterior
materials proposed to be used and any proposed landscaping together with any
other material or information which the Committee may require. All plans and
drawings required to be submitted to the Committee shall be drawn to a scale of
one quarter inch (1/4') equals one foot (I'), or to such other scale as the
Committee may require. There shall also be submitted, where applicable, the
permits or plat plans which shall be prepared by either a registered land surveyors
an engineer or an architect. ~,
Section 9.1.2 Power of Disapproval. The Committee may refuse to grant
permission to remove trees, repaint, construct, place or m~le~_ tho requested
improvement when:
(a) the plans, specifications, drawings or other material submitted are
themselves inadequate or incomplete or show the proposed improvement
to be in violation of this Declaraion; or,
(b) the design or color scheme of a proposed repalnting or
improvement is not in han~ony with the general surroundings of the Lot
or with adjacent Residences or sn-.,ctures; or,
(c) the proposed improvement, or any pan thereof, or proposed tree
removal would in the opinion of the Committee be contrary to the interest,
welfare or rights of all or any p~.'~ of the other Owners.
Section 9.1.3 Declarant Improvements. The Committee shall have no powers
with respect to any improvements or s~ctures erected or constructed by the
Declarant (or any Builder if Declarant h~s approved the plans therefor).
Section 9.2 Duties of Committeff.~The Committ~ shall approve or disapprove proposed
improvements within thirty (30) days after all required information shall have been submitted
to it. One copy of submitted material shall be retained by the Committee for its permanent fries.
All notifications to applicants shall be in writing, and Lq the event that such notification is one
of disapproval, it shall specify the reason or reasons for such disapproval.
Section 9,3 Liability. of Committee. Neither the .Committee nor any agent thereof, nor
Declarant, shall be responsible in any way for any defects in any plans, specifications or other
materials submitted to it, nor for any defecu in any work done'according thereto.
Section 9.4 Inspection. The Committee may inspect' work being performed with its
permission to assure compliance with this Declaration and applicable regulations.
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Section 9.$ Membership. The Committee shall consist of members designated by the
Declarant until the Control Transfer Date. After the Control Transfer Date, the Committee sh~l!
consist of t~ree (3) Owners selected from time to time through the written approval of two-thirds
(2/3) of all Owners and Class A Members. Membership on the Committee may be changed and
vacancies shall be filled from time to time upon the written approval of a least two-thirds (2/3)
of all the Owners; provided, however, that in the event of a vacancy on the Committee,
remaining two (2) Committee members may appoint an Owner to the Committee to serve until
the requisite percentage of Owners, as aforesaid, shall otherwise appoint an Owner to fill such
vacancy.
Section 9.6 Approvals. Approvals, deterrginations, permissions or consent required
herein shall be deemed given if they are given in writing signed with respect to the Committee
by two members thereof (except during the period of thnc that the Declarant controls the
Committee, in which event the written approval of an authorized member or agent of Declarant
shall suffice).
SECTION 10. RIGHTS OF MORTGAGEES.
Except to the extent otherwise provided herein, no breach of these Restrictions shall
defeat or render invalid the lien of any mortgage now existing or hereafter executed upon any
portion of the Real Estate; provided, however, that if all or any portion of said Real Estate is
sold under a foreclosure of any mortgage, any purchaser at such sale and his successom and
assigns shall hold any portion of the Real Eitate so purchased subject to this Declaration.
Notwithstanding any other provision of this Declaration, neither the Declarant, the Owners nor
the Committee shall have any right to make any amendment to this Declaration which materially
impairs the rights of any Mortgagee holding, insuring, or guaranteeing any Mortgage on all or
any portion of the Real Estate at the time of such amendment
SECTION 11. INSURANCE.
Section 11. i Coverage. To the extent reasonably available, the Board shall obtain and
maintain insurance coverage as set forth in this Section. If such insurance is not reasonably
available, and the Board determines th, at any insurance described herein will not be maintained,
the Board shall cause notice of that fact to be hand-delivered or sent prepaid by United States
mail to all Owners and eligible Monga§ees at their respective last known addresses.
Section 11.2 Property Insurmce.
(a) Property insurance covering one hundred percent (100%) of the actual
replacement cost value of the following shall be obtained by the Association:
(i) The Common Area; and,
(ii) Any personal property owned by the Association.
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(b) Risks Insured Against. The insurance shall afford promcti0n against 'all risks'
of direct physical loss commonly insured against.
(c) Other Provisions. Insurance policies required by this Section shall provide that:
(i) Thc insurer waives the fight to subrogation under the policy against the
Lot or member of the household of an Owner;
(ii) An act or omission by an Owner, unless acting within the scope of the Lot
Owner's authority on behalf of the Association, will not void the policy or be a
condition to recovery under the polic~'~
(',ii) If at the time of a loss under the policy, there is other insurance in the
name of un Owner covering the same risk covered by the policy, the
Association's policy provides primary insurance;
(iv) Loss must be adjusted with the Association;
(v) Insurance proceeds shall be paid to any insurance trustez designated in the
policy for that purpose, and in the absence of such designation, to the
Association, in either case to be held in trust for Owner and such Owner's
mortgagee;
(vi) The insurer may not cancel or refuse to renew the policy until thirty (30)
days alter notice of the proposed Cancellation or non-renewal has been mailed to
the Association, each Owner and each holder of a security interest to whom a
certificate or memorandum of insurance has been issued at their respective last
known addresses;
Section 11.3 Liability Insurance. Liability insurance including medical payments
insurance in an amount determined by the Board but in no event less than One Million Dollars
($1,000,000) covering all occurrences co.mmonly insured against for death, bodily injury and
property damage m-ising out of or in connection with the use, ownership of maintenance of the
Common Area and the activities of the Association.
(a) Other Provisions. Insurance policies carri~l pursuant to this Section shall provide
that:
(i) Each Owner is an insured person under the policy with respect to liability
arising out of the Owner's interest in the Common Area or membership in the
Association;
(ii) . The insurer waives the fight to subrogation under the policy against a Lot
Owner or member of the household of an Owner;
- 25 -
(iii) An act or omission by an Owner, unless acting Within the scope of the
Owner's authority on behalf of the Association, will not void the policy or be a
condition to recover~ under the policy;
(iv) If at the time of a loss under the policy there is other insurance in the
name of an Owner covering the same risk covered by the policy, the policy of the
Association provides primary insurance; and,
(v) The insurer issuing the policy may not cancel or refuse to renew it until
~ (30) days after notice of the proposed cancellation or non-renewal has been
mailed to the Association, each Owner and each holder of a Seeuziv1 Interest to
whom a certificate or memorandum of insurance has been issued at their last
known addresses.
Section 11.4 Fidelity Bonds. A blanket fidelity bond is required for anyone who either
handles or is responsible for funds held or administered by the Association whether or not they
receive compensation for their services. The bond shall name the Association as obligee and
shall cover the maximum funds that will be in the custody of the Association or the manager at
any time while the bond is in force and in no event less than the sum of three months'
assessments plus reserve funds. The bond shall include a provision that calls for ten (10) days
written notice to the Association, to each holder of a Security Interest in a Lot, to each sendcer
that services a FNMA owned or FI-lI2vfC owned mortgage on a Lot and to the insurance trustee,
if any, before the bond can be canceled or substantially modified for any reason.
Section 11.5 Owner Policies. Each Owner shall can3r fire and extended coverage
insurance on his Lot including the exterior. The Association, or Declarant pursuant to its fights
reserved hereunder, may adopt rules and regulations governing the minimum amounts of
insurance required to be carried by all Owners, certain provisions of which may be required to
be included in all such insurance policies, and such other terms and provisions pertaining to
insurance which may reasonably be deemed necessa_~, or appropriate (1) to assure that all Lots
and sites are insured and that there will be process of insurance to repair or restore the same
in the event of a casualty loss theretg,, or (2) othenvise to assist or to simplify problems of
coordinating insurance coverage between the Owners and the Association.
Section 11.6 Workers' Compensation Insurance. The Board shall obtain and maintain
Workers' compensation Insurance to meet the requirements of the laws of the State of Indiana.
Section 11.7 Directors' and Officers' Liability Insurance. The Board may obtain and
maintain directors' and officers' liability insurance covering all of the direc',ors and officers of
the Association in such limits as the Board in its sole discretion may from time to time
determine.
Section 11.8 Other Insurance. The Association may carry other insurance which the
Board of Directors considers appropriate to protect the Association of the Owners.
- 26 -
Section 11.9 Premiums. Insurance premiums for insurance mainlined by the
Association pursuant to this Section 11 shall be a Common Expense.
SECTION 12. DAMAGE TO OR DESTRUCTION OF PROPERTY.
Section 12.1 Duty to Restore. A portion of the Common Area for which insurance
carried by the Association is in effect that is damaged or destroyed must be repaired or ~=placed
pwmptiy by the Association unless:
(a) Repair or replacement would be illegal under a state statute or municipal
ordinance governing health or safety; or, ;' 2
(b) F. ighty percent (80 %) of thc Owners including each Owner of a Lot that will not
be rebuilt vot~ not to rebuild.
Section 12.2 Cost. The cost of repair or replacement in excess of insurance proceeds
and reserves is a. Common Expense.
Section 12.3 Plans. The Property must be repaired and restored in accordance with
either the original plans and specifications or other plans and specifications which have been
approved by the Board, a majority of Owners and tifF-one percent (51%) of eligible
Mortgagees.
Section 12.4 Replacement of Less than En~e Property.
(a) The insurance proceeds attributable to the damaged Common Area shall be used
to restore the damaged area to a condition compatible with the remainder of the Real
Except to the extent that other persons will be distributees,
(i) The insurance proceeds attributable to a Lot that is not rebuilt must be
distributed to the Owner of the Lot or to lien holders as their interests may
appear.
(il) The remainder of the proceeds must be distributed to each Lot Owner or
lien holder as their interests may appear in proportion to the Common Area
interests of all the Lots.
Section 12.5 Insurance Proceeds. The Trustee, or if there is no trustee, then the Board
of the Association acting by its President, shall hold any insurance proceeds in trust for the
Association, LOt Owners and lien holders as their interests may appear.
- 27 -
Section 12.6 Certificates by the Board. The Trustee, if any, maY rely on the following
certifications in writing made by the Board:
(a) Whether or not damaged or destroyed Property is to be repaired or restored.
(b) The amount or amounts to be paid for repairs or restoration and the names and
addresses of the parties to whom such amounts are to be paid.
Section 12.7 Certificates by At~meys or Title Companies. If payments are to be made
to Owners or mort§a§ees, the Board and the Trustee, if any, shall obtain and may rely on a fide
insurance company or attorney's fide certificate o~tifie or a fide insurance policy based on a
search of the records of Hamilton County, Indiana, from the date of the recording of the origh~l
Declaration stating the names of the Owners and the mortgagees.
SECTION 13. RIGHTS TO NOTICE AND HF_ARh-NG.
Section 13.1 Right to Notice and Heating. Whenever this Declaration requires that an
action be taken after "Notice and Hen.ring," the following procedure shall be observed: The
party proposing to take the action (e.g., the Board, a committee, an officer, the Manager, etc.)
shall give written notice of the proposed action to all Lot Owners or occupants of Lots whose
interest would be significantly affected by the proposed action. The Notice shall include a
general statement of the proposed action and the date, time and place of the hearing. At the
heating the affected person shall have the right, personally or by a representative, to give
testimony orally, in writing or both (as specified in the notice), subject to reasonable rules of
procedure established by the party conducting the meeting to assure a prompt and orderly
resolution of the issues. Such evidence shall be considered in malclng the decision but shall not
bind the decision makers. The affected person shall be notified of the decision in the same
manner in which notice of the meeting was given.
Section 13.2 Appeals. Any person having a right to Notice and H ~earing shall have the
right to appeal to the Board from a decision of persons other than the Board by IrLling a written
notice of appeal with the Board within t. en (10) days after being notified of the decision. The
Board shall conduct a hearing within thirty (30) days giving the same notice and observing the
same procedures as were required for the original meeting.
SECTION 14. BOARD OF DIRECTORS.
Section 14.1 Powers and Duties. The Board of Directors may act in all instances on
behalf of the Association except as provided in this Declaration or the By-Laws. The Board
shall have, subject to the limitations contained in this Declaration, the powers and duties
necessary, for the administration of the affairs of the Association and of the community which
shall include, but not be limited to, the following:
(a) Adopt and amend By-Laws and rules and regulatiotis';
Co) Adopt and amend budgets for revenues, expenditures and reserves;
(c) Collect assessments for Common Expense~ from Owners;
(d) Hire and discharge managing agents;
(e) Hire and discharge employees and agents other than managing agents and
independent contractors;
(f) Institute, defend or intervene in litigation or administrative proceedings or seek
injunctive relief for violation of the Association's Declaration, By-Laws or rules and
regulations in the Association's name on behalf of the Association or two or ~or~
Owners on matters affecting the community;
(g) Make contracts and incur liabilities;
(h) Regulate the use, maintenance, repair, replacement' and modification of the
Common Area;
(i) Cause additional improvements to be made as a pan of the Common Area;
Provide or hire others to provide landscape maintenance services for Owner.n;
(k) Acquire, hold, encumber and convey in the Association's name any fight, title or
interest to real property or personal property;
(1) Grant easements for any period of time including permanent easements; and
leases, licenses and concessions for no more than one year through or over the Common
(m) Impose and receive a payment, fee or charge for the use, ren',_l or operation of
the Common Area and for servic,es provided to Owners;
(n) Impose a reasonable charge for late payment of assessments and, after Notice and
Hearing, levy reasonable frees for violations of this Declaration, By-Laws, rules and
regulations of the Association; _
(o) Provide for the indemnification of the Association's officers and Board and
maintain directors' and officers' liability insurance;
(p) Assign the Association's right to future income, including the right to receive
Common Expense Assessments;
Exercise any other powers cbhferred by this Declaration ~r ~,% By-Laws;
- 29 -
(r) Exercise any other powers that may be exercised in this state by legal entities of
the same type as the Association;
(s) Exercise any other powers necessary and proper for the governance and operation
of the Association; and
(0 By resolution, establish commia~s of directors, permanent and standing, to
perform any of the above functions under specifically delegated administrative shandards
az designated in the resolution establishing the committee. AU committees must m~i.tain
and publish notice of their actions to Owners and the Board. However, actions taken by
a committee may bc appealed to thc Board by any Owner within forty-five (45) days of
publication of such notice and such committee action must be ratified, modified or
rejected by the Board at its next regular meeting.
SECTION 15. OPEN M~EETINGS.
Section 15.1 Access. All meetings of the Board at which action is to be taken by vot~
will be open to the Owners except az hereafter provided.
Section 15.2 Notice. Notice of every such meeting will be given not less than thirty (30)
days and not more than sixty (60) days prior to the time set for such meeting by written notice
sent to all Members posting such notice in a conspicuous location in the community, except that
such notice will not be required if an emergency situation requires that the meeting be held
without delay.
Section 15.3 Executive Sessions. Meetings of the Board may be held in executive
session without giving notice and without the requirement that they be open to Owners in either
of the following situations:
(a) No action is taken at the executive session requiring the affirmative vote of
Directors; or,
(b) The action taken at the ~ecutive session involves personnel, pending litigation,
contract negotiations, enforcement actions, or matters involving the invasion of privacy
of individual Owners, or matters which are to remain confidential by request of the
affected parties and agreement of the Board. _
SECTION 16. CONDI:?vlNATION OF COMMON AREA.
If all or any portion of the Common Area is taken for any public or q-asi-public use .
under any statute by right of eminent dom ~ain or by purchase in lieu of eminent domain, the
entire award shall be deposited into the Association's operating account until distributed. The.
Association shall distribute such funds proportionately to all Owners az theft interests appear
according to the resp'eative fair market values of their Lots immediately prior to the time of
- 30 -
condemnation as determined by an independent appraisal made by a qUalified Real Estate
Appraiser with Member or the Appraisal Institute certificate or the equivalent as selected by the
Board, The Association shall represent the interests of all Owners,
SECTION 1'I. ANNEXATION OF ADDITIONAL PROPERTY.
Section 17.1 Annexation without Approval of Owner~.
: (a) As the owner thereof, or if not the owner, with the consent of the owner thereof,
Declarant shall have the unilateral fight, privilege, and option, from time to time at any
time until December 31, 2005, to subject to,the provisions of this Decla~ation and the
jurisdiction of the Association El or any portion of the real property de.~cfibed in Exhibit
"lO", attached hereto and by reference made a part hereof, and any other rea[ e.~tate
adjacent thereto or to the Real E.~tate as the same exists from time to time whether in fee
simple or leasehold, by filing in the Recorder's Office of Harn/lton County, Indiana, an
amendment or Supplemental Declaration annexing such property. Such Supplemental
Declaration or amendment to this Declaration shall not require the vote or approval of
any Owners. Any such annexation shall be effective upon the t'fling for record of such
amendment or Supplemental Declaration unless otherwise provided therein.
(b) Declarant shall have the unilateral fight to transfer to any other person the ~aid
fight, privilege, and option to annex additional property which is herein re~erved to
Declarant, provided that such transferee or assignee shall be the developer of at least a
po~on of said real property to be so annexed and that such transfer is memori~li?~ in
a written, recorded instrument.
(c) The fights reserved unto Declarant to subject Additional Land to the Declaration.
shall not be implied or construed so as to impose ~ny obligation upon Declarant to
subject any of such Additional I.and to this Declaration or to the jurisdiction of the
Association nor any obligation, if subjected, to build housing of the same type, design,
or materials. If such Additional Land is not subjec:ed to this Declazafion, Declarant's
re~e."ved rights shall not impose any obligation on Declarant to impose covenant~ and
restrictions similar to those contained herein upon such Additional Land, nor shall such
fights in any manner limit or res:."ict the use to which the Addition~l Land may be put
by Declarant or any subsequent owner thereof, whether such uses are consistent with the
covenants and restrictions imposed hereby or not.
SecSon 17.2 Acquisition of Additional Common Area. Declarant may convey to the
Association additional real estate, improved or unimproved, which upon conveyance or
dedication shall be accepted by the Association and thereafter shall be maintained by [he
Association as a Common Expense for t.ke benefit of all Owners.
-31 -
Section I?.3 Amendment. This Article shall not be amended without the wri~en con~ent
of Declarant, so long a~ the Decla. rant owns any property described in Exhibit A or Exhibit D
attached hereto.
SECTION 18. GENERAL PROVISIONS.
Section 18. I Duration. This Declaration shall be perpetual, run with and bind all the
Real Estate subject to this Declaration and shall inure to the benefit of and be enforceable by the
Declarant, its respective successors, a.~igns, heirs, executors, administrators, and pe.r~onal
representatives with the following exception:
The covenants and restrictions set forth in this Declaration shall have an initial term of
twenty (20) years from the date th.is Declaration is recorded/n the Office of the Recorder of
Hamilton County, Indiana. At the end of this period, the covenants and restrictions shall be
automatically extended for successive periods of'ten (10) years each unless at lee~t two-tlfirds
(213) of all Owners within the Real Estate at the time of the expiration of the initial period or
any extension period shall sign an instrument or instruments (which may be in counterpart) in
which they shall agree to terminate any or all of ~aid covenants and restrictions in any manner
~ may be provided by law; however, no such Agreement shall become binding unless written
notice contah~g the terms of the proposed Agreement is sent to every Owner in the Real Estate
at le~t ninety (90) days in advance of the action taken in authorizing sa.id Agreement, and, in
any event, any such Agreement shall not become effective and binding until three (3) years after
the recording of the ~ore~id fully executed instrument or instruments containing such
agreement.
Section 18.2 Amendment of Declaration. Except a~ otherwise provided herein,
amendment~ to this Declaration shall be proposed and adopted in the following manner:
Section 18.2.1 Notice of the subject matter of the proposed amendment shall be
given to each Owner. Any proposed amendment to this Declaration must be
approved by not less than seventy-five percent (?$%) of the Owners. Each
amendment to the Declaration shall be executed by the Owners casting vote~ in
favor of the amendment'a~d shall be recorded in the Office of the Recorder of
Hamilton County, Indiana, and such amendment shall not become effective until
so recorded.
Section 18.2.2 Notwithstanding the foregoing or anything elsewhere contained
in this Declaration; Declarant shall have the right acting alone and without the
consent or approval of the Owners, Builders or any other person, to amend or
supplement this Declaration from time to time if such amendment or supplement
is required to:
(a) proyide utility service to any Lot;"
- 32 -
(b) ' bring this Declaration into compliance with any statutory requirements;
(c) correct clerical or typographical errors in this Declaration or any exhibit hereto
or any supplement or amendment thereto; or,
(d) make any other amendment which in its sole discretion it deems necessary as long
as it is a Class B Member of the Association pursuant to Section 5.3.2 of this
Declaration.
Section 18.3 Notice. Any notice required to be sent to any Owner under thc provisions
of this Declaration shall be deemed to have been propel:ly sent and notice thereby given when
mailed by regular post with postage prepaid addressed to Owner at the last known post office
address of the person who appears as Residence Owner in the records of the Hamilton County
Auditor's Office. Valid notice may also be given to an Owner by (i) personal delivery to any
occupant of his Residence over fourteen (14) years of age; or, (ii) by affixing said notice to or
sliding same under the front door of his Residence.
Section 18.4 Severability. Should any covenant or restriction contained in this
Declaration or any ankle, section, subsection, sentence, clause, phrase or term of this
Declaration be declared to be void, invalid, ille§ai, or unenforceable for any reason by the
adjudication of any court or other tribunal having jurisdiction over the parties hereto and the
subject matter hereof, such judgment shall not in any manner affect the other provisions hereof,
which are hereby declared to be severable and which shall remain in full force and effect.
Section 18.5 Rule Against Perpetuities. If any provision of this Declaration shall be
interpreted to constitute a violation of the rule against perpetuities, then such provisions shall
be deemed to remain in effect until the death of the last survivor of the now living descendants
of the persons signing the Declaration on behalf of Declarant plus twenty-one (21) years
thereafter.
Section 18.6 Gender and Number. Whenever the context of this Dec!zratiou so requires,
the use of the masculine gender shall be deemed to refer to the feminine or neuter gender and
the use of the singular shall be deemed tb refer to the plural and vice versa. No pronoun usage
shall be deemed to exclude a reference to an institution, corporation, parmership, or any other
type of business entity. The titles are for convenience of reference only md shall not be used
as an aid in construing the provisions thereof. _
Section 18.7 Construction and Sale. Notwithstanding any provisions contained in the
Declaration to the contrary, so long as Declarant owns any Lots, it shall be expressly
permissible for Declarant, free of any and all charges therefor, to maintain and carry on upon
portions of the Common Area such facilities and activities as, in the sole opinion of Declarant,
may be reasonably required, convenient, or incidental to the construction or sale of such
residences, including, but not limited to, business offices, signs, model units, and sales offices,
and the Declarant shall have an easement for access to such facilities. The right to maintain and
- 33 -
carry on such facilities and activities shall include specifically the right to use residences owned
by the Declarant as models and sales offices. This Section may not be amended without file
express written consent of the Declarant; provided, however, the rights contained in this Section
18.7 sh~!l ~.rminate upon the earlier of (a) twenty-five (25) years from the date th. is Declaration
is recorded or (b) upon the Declazant's recording a written statement that all ~ml~ activity has
Section 18.8 Limitation on Declarant's Liability. Notwithstanding anything to the
conwary herein, it is expressly agreed, and each Owner, by accepting title to a Lot and
becoming an Owner acknowledges and agrees that neither Declarant (including without limitation
any assignee of the interest of Declazant hereunder) nor any director, officer or shareholder of
Declarant (or any partner, officer, director or shareholder in any such assignee) shall lmve any
personal l!nhility to the Association, or any Owner, Member or other l~rson, arising under, in
connection with, or resulting from (including without limitation resulting from action or failure
to act with respect to) this Declaration or the Association. If any judgment is ever levied against
Declarant (or its assignee), the same is hereby agreed to be limited to the extent of Decinmat's
(or such assignee's) interest in the Development; and, in the event of a judgment no execution
or other action shall be sought or brought thereon against any other assets, nor be a lien upon
any other assets of Declanmt (or its assignee).
IN wI'rNF. SS TI~OF, Declarant has executed this Declaration on the date and year
first above written.
OAK VIeW ASSOCIATES, LLC
By: IviICLAR, INC., managing member
I. Mic/=/aei Sc~eetz, President
STATE OF INDIANA )
) SS:
COUNTY OF HAMILTON )
Before me, a Notary Public in and for said County and State, personally appeared L
Michael Scheetz, personally known to me to be tho President and Secretary of MICLAR, Inc.,
the managing member of Oak View Associate~, T.T,C, and acknowledged the execution of the
foregoing Declaration of CovenanU, Condirlons and R~strictions of Delaware Trace this
day of ~c~/~ ,199~.
~7
~-/~. a~,~:~ ~ , Nora7 I'ubUc
Printed:
SUSAN ~
NOTARY PUBLIC STA~ OF
~y Commission ~pires: ~MILTON COL~
This document was prepared by Mark D. Grant, Ice lvfiller Donadio & Ryan, One American
Square, Box 1/2001, Indianapolis, Indiana 46212, telephone: (317) 236-2100.
- 35 ~
Port of the Southwest Quarter of Section 22 and port of the Northwest Quarter of Section
27, all in To.ship 18 North, Range 4 East located in Cia), Ta~m~ip, Ha'n~ton Count),,
Indiana, descr,'hed as follo~s:
Commencing at a brass plug at the southeast caner of the Northwest Quarter of said
Section 27; thence North 8g degrees 50 minutes 26 seconds West along the south line
of said Northwest Quarter a distance of 2638.70 feet to the southwest corner of s~id
Northwest Quarter;, thence Ne'th O0 degrees 20 minutes ~ seconds East along the west
line of said Northwest Quarter a distance of 1794.90 feet to the POINT OF BEGINNING;
thence continuing Necth O0 degrees 20 minutes 4.3 seconds East along said ~est line a
distance of 852.04. feet to the northwest cane' of said Northwest Quart~ thence North
00. degrees 37.minutes 01 seconds East along the ~.st, line of the Southwest Quarte' of
said Sect~n 22 a,. distance of 77.69 feet; thence ~outh[89 degr~ess 22 minutes 59
seconds East a d~stonce of 60.00 feet; thence No'th 64 degrees 23 minutes 03 seconds
East a distance of 510.67 feet; thence Sajth 81 degrees 4.2 minutes 40 seconds E~st a
distance of 306,62 feet; thence South 39 degrees 42 minutes 20 seconds East a
distance of 17g.22 feet; thence South 31 degrees 20 minutes 48 seconds East a distance
of 273.70 feet; thence South 25 degrees 07 minutes 20 seconds West a distance of
65.76 feet; thence South O0 degrees 29 minutes 37 seconds West a dist(~nce of 14.7.80
feet; thence South 07 degrees 29 minutes 04 seconds West a d~stance of 50.38 feet;
thence South O0 degrees 29 minutes 37 seconds West a d~stence of 153.46 feet; thence
South 13 degrees 27 minutes 45 seconds West a distance of 194..g6 feet; thence South
57 degrees 29 minutes 37 seconds West a distance of 356.37 feet; thence South 80
degrees 37 minutes 11 seconds West a distance of 50.28 feet; thence South 83 degrees
29 minutes 37 seconds West a distance of 115.98 feet; thence North 89 degrees 54-
minutes 22 seconds West a distance of 240,00 feet; thence North 52 degrees 13 minutes
19 seconds West a distance of 126.20 feet; thence North 89 degrees 34. minutes 40
seconds West a distance of 199.16 feet to the POINT OF BEGINNING. Containing 25.4.34
acres, more or less. ~
Master Development Plan
Plat of Phase I
DELAWARE TRACE
SECTION 1
SECONDARY PLAT
THE H.W,1/4 6EC~ 27-TIS~R4E
(3~ 1~ ~.W.I/4 ~ 22-T18~R4E
3
/
17
7
14
18 1; 2D 2~ 12
24
tt
CURVE DATX TA~.A
SHEET I OF 2
- 3'7 -
~RIBIT D
The following described real es~.t-" located in Hamilton Count,
Indiana:
Two and one-h~lf acres out of the southeast comer of Section 21,
Township 18 North, Rz~,ge 4 ~:.~q d,es. cribed as follows:
Commencing at the South,'.~t Comer of said Section; thenc~ North
along the Section line to t.he gr. ve! road formerly lmown as the
Nobl~sville and Indiana~lis High~y; thence Southwest along said
highway to the south line of said $--~- don; thence l:n~l to the place
of beginning; -,.lso The Nor~ Half qf the Northwest Quarter of
Section 27, Township li~ North, Ringe 4 l:n~t, except 3 1/3 acres
off the south side thereof; also
Pan of the Southwest Quar, er of Section 22, Township lg North,
Panic 4 l:nst; commencing at the Southwest comer of said quarmr
sec'Jon; thence North 53 rods; thence l:,~ 151 rods; thence
Southeast to a ~int on the South tine of said Quarmr S~tion 156
rods Eait of the place of beginning; thence West to the place of
beginning, confining if'of-one acres; also
Pan, of the Northeast Qua~r of tine Northeast Quarter of Section
21, Township 18 Nor, h, Range 4 l:n,t, commencing at the
Nor, beast Comer of said Section, thence West 26.20 rods, thence
South 46 1/2 degr~s WesL 13.93 rods; thence South 97 rods;
thrace Southeasterly to a point w~-,ich is 17.42 rods West of and
110.67 rods South of the Nor, hecst comer of said section, thence
Nora 34 rods, thence Bas; 17.42 rods, thence North ?6.6? rods tn
the place of beginning; a!so~
Fo,~ acres off the Nor. h end of a ~act described as follows:
Commencin~ 35.12 rods Wes; of the Southeast Comer of the
Northeast Qua'mr of Sccdon
}=.',ir, thence West 12~.~ rods. C~'~ce NorLh 17.11 rods, thence
No,th 43 1/2 degrees l:n~, 182.52 rods, thence South 150 rods to
the place of beginning.
Con~nin~ :m all 153.S a:res mere* or less, zll subject to survey.