HomeMy WebLinkAboutCovenants Hazel Dell SummitH 0 M E S, LLC
April 29, 1999
Mark Monroe
City of Carmel
Department of Community Development
One Civic Square
Carmel, Indiana 46032
RE: Hazel Dell Summit
Dear Mark:
As you may recall from the presentation made at the Public
Meeting our intention for the Association of Hazel Dell Summit
is to expand both the Trails at Avian Glen Homeowners
Association to cover the sections which Davis will develop,
which includes Sections I & II, and also to expand the Delaware
Trace Association to include Section III, which will be
developed by Oakview Associates. In fact, Sections I & II have
already been annexed into the Declaration of Covenants,
Conditions and Restrictions of The Trails of Avian Glen.
We have previously provided you copies of the existing
Declarations of Delaware Trace and Trails of Avian Glen, along
with a budget for the Homeow~lers Association Dues and Expenses
for this area under the scenario described above. Enclosed
please find an additional copy.
We have also provided you a copy of a sample of the
association document and budget for this overall parcel separate
from the existing association should this option be determined
at a later date to be the course of action we pursue to keep
separate associations. Both Davis and Oakview Associates have
constructed amenity areas in existing sections which we intended
to expand the use of to future sections we are developing.
These existing amenity areas are not included in the calculation
for our common area, which we are presenting for this plat. The
additional pool area is not a requirement of the open space
ordinance for this plat. This type of shared use is very
similar to the communities of Waterstone, Prairie View,
Shelbourne Greene, Westons and many others, which have multiple
neighborhoods sharing in the common use of amenities.
3755 East 82nd Street, Suite 120 Indianapolis, Indiana46240 (317) 595-2800
Since our last meeting we have been working with the Trails
at Avian Glen Homeowners Association to resolve this issue.
Enclosed please find a notice of a meeting of the association
which we have scheduled for May l0th in accordance with the
notice requirements of the Association By-laws and vote on the
matters presented. One option we have presented to them is an
option of separate associations with common use of the pool
facility, which we feel is a good compromise to resolve some of
our differences. In any event, we do not believe that the
question of the rights of future residents of Hazel Dell Summit
to share in the use of the pool located on the west side of
Cherry Tree Road has any bearing on the review or approval of
the Hazel Dell Summit plat.
Whether the association for Hazel Dell Summit winds up
being an expansion of Trails of Avian Glen and Delaware Trace or
eventually becomes its own association, we want to assure you
that the maintenance of the Common Areas presented to you in the
Hazel Dell Summit plat will be maintained by an association
which has responsibility of paying dues and expenses. These
expenses are covered in the budgets which have been presented to
you.
Also included in the budgets prepared is a line item for
maintenance of the bike trails which was a question at the
Public Meeting by one of the Planning Commission members. Any
bike trails put in within the public right-of-way of 131st,
Cherry Tree Road or Hazel Dell Road would be the responsibility
of the City upon completion, no different than a sidewalk. Bike
trails put within Common Areas would be the responsibility of
the association and is provided for in the overall association
budget.
Regarding the two different possibilities of associations,
we feel that it is at our discretion as to which method is used,
provided we ensure the Planning Commission as part of our
request that an association will be established which covers and
maintains the Common Areas to be presented in the open space
ordinance. If John Molitor will not be at the sub-committee
presentation we would like to obtain his opinion on this issue
ahead of the meeting.
Regarding the types and size of homes to be constructed
within this plat, we have previously stated that the price range
will be from $150,000 to $350,000 for the homes to be
constructed by Davis and Pulte. The homes to be constructed by
Davis will be similar in nature to Shelbourne Orchard and also
very similar in price range to Plum Creek North, which is
directly to the east of our parcel.
We have enclosed an amended copy of the plat covenants
which incorporate a higher square footage than is required by
the present SI zoning. This square footage has been amended to
incorporate a minimum square footage of 1,600 SF for these
homes, which is in keeping in what was presented at the Planning
Commission Meeting.
There were several questions asked about the proposed
Cherry Tree bike trail. This is an issue which I have been
working with the City Engineer's Office, Parks Department and
Board of Public Works for over a year now. This is an
improvement which we have agreed to work with the City of Carmel
on separate from our platting request. The bike trail is not
part of our open space area calculation. At the December 2,
1988 meeting, the Board of Works approved the abandonment of use
of Cherry Tree as a roadway from the north connection with
Coopers Hawk Drive to the south connection. The decision on the
section between Coopers Hawk south connection to Killdeer Place
was delayed until such time as additional traffic analysis could
be made on the number of cars utilizing this section of roadway.
The Board of Works requested that this section of roadway be
studied by Davis as petitioner once Hazel Dell Road is opened to
traffic all the way to 146tn Street, which is anticipated to
happen this summer. We intend to perform this study by A&F
Engineering this summer and represent the request for this
section of roadway when the study is complete. The construction
details and agreement for maintenance between the Board of Works
and Parks Department still remains to be completed prior to the
formal closure and construction of the Cherry Tree bike trail.
Again, this work is intended to be completed with or without the
plat approval of Hazel Dell Summit. We have a variance request
to eliminate sidewalks along Cherry Tree Road along areas to be
utilized as bike trails. If the one section is not approved for
a trail, we will be required to install a sidewalk in this area.
Please review the enclosed information and if you have any
questions please feel free to call me at 595-2903.
S~q~ely, ~
Christopher R. White
President of Development
H 0 M E S, LLC
April 23, 1999
To:
Residents and Builders
Of The Trails at Avian Glen
Following up on several telephone calls we have
received recently concerning the development of the land
adjacent to The Trails at Avian Glen on the east side of
Cherry Tree Road and the timetable for electing new members
of the oard of Directors of The Trails at Avian Glen, we
have decided to call a meeting of members of The Trails at
Avian Glen Community Association, Inc. As indicated in the
attached formal notice, the meeting has been scheduled for
7:00 p.m., Monday, May 10, 1999, and will be held at the
Carmel Clay School Administration uilding located on the
south side of the intersection of Main Street and Cherry
Tree Road.
Several residents have asked when we, as Developer,
intend to turn control of the Association over to the
residents. In answer to this, it had always been our
intention to continue to serve as de.facto manager of the
Association until such time as all of the land originally
contemplated as being part of the property governed by the
Declaration of Covenants, Conditions and Restrictions of
The Trails at Avian Glen (including the land to be
developed on the east side of Cherry Tree Road) had been
full developed. However, in conversations with several
homeowners at The Trails at Avian Glen, the comment has
been made that some residents would like to take control of
the Association now.
Accordingly, the first matter to be considered and
acted upon at the upcoming meeting will be whether the
existing residents at The Trails at Avian Glen desire at
this time to take control over and responsibility for
managing the Association. As Developer, we have no strong
feeling on this issue. If the consensus of residents is to
3755 East 82nd Street, Suite 120 Indianapolis, Indiana 46240 (317) 595-2800
have us continue (through our affiliated management
company, Centennial Management) to perform all of the
various duties required to be performed by the Association,
we would be glad to do so without charging the Association
any management fee. If, however, the residents would like
to take direct control over these management
responsibilities, we would gladly work to facilitate a
smooth transition.
A turnover of control would be effected by having
residents elect five new members of the oard of Directors
of the Association to replace the five existing directors
who were originally appointed by us as Developer. These new
oard members would appoint new officers (President, Vice
President, Secretary and Treasurer) and thereafter have
ultimate responsibility for all activities required to be
performed by the Association including without limitation,
setting budgets, collecting dues, entering into contracts
with firms retained to perform maintenance work in the
community, purchasing liability and casualty insurance,
keeping books and records of the Association, promulgating
and enforcing community rules and regulations, handling
neighborhood complaints, etc. The new oard would decide
whether to divide these responsibilities among individual
officers and oard members or retain the services of an
outside professional property management company which
would perform these duties on the oard's behalf.
In any event, in our capacity as Developer, even if a
new oard is elected as provided above, we would continue
to have the various specific rights set forth in the
Declaration for so long as we own any lots in the
community. For example, for as long as we own any lots in
the community, we would continue to have exclusive control
over the Architectural Review Committee and its enforcement
of the building policies and guidelines established from
time to time. (Section 6.1 of Declaration) We would be
exempt from the obligation to pay regular or special
assessments on lots that we own. (Section 7.4 of
Declaration) We would exercise control over all drainage,
utility or sewer easements. (Section 7.8 of Declaration) We
would have veto power over any proposed amendments to the
Declaration (Section ll.l(iv)) and we would be entitled
unilaterally to make certain amendments ourselves (Section
11.2 of Declaration). Finally, we would have various rights
concerning access, signs, sales offices, models,
construction or sales trailers, temporary parking, etc.
(Article XIII of Declaration)
With regard to how activities of the Association are
financed, we have previously been funding Association
deficits (i.e., the difference between the aggregate amount
of dues collected and the actual Association expenses
incurred). Should the residents decide at the meeting that
we should continue to control the Association for an
additional period of time, we would intend to continue
funding these deficits. If it is decided that control of
the Association (including decision-making power over
budgets and how the Association spends money) is to be
turned over to a new oard of Directors, we would have to
work with the new oard members to reach a mutually
satisfactory solution to the issue of how the Association's
activities will be financed in the future. This solution
may include an overall dues increase, a reduction in future
Association services and related expenses, the voluntary
payment by us of dues on lots in the community that we own,
an amended deficit funding commitment which we might make
to the Association, or some other mutually satisfactory
arrangement. The aggregate amount of the Association
deficits were $31,199 and $36,715, respectively, in 1997
and 1998.
Finally, with regard to the additional lots to be
developed across Cherry Tree Road, it was our original plan
that all of these lots would be annexed to the land
originally governed by the Declaration for The Trails at
Avian Glen and that homeowners in the new area would become
members of The Trails at Avian Glen Community Association,
Inc. with the same rights and obligations as any other
resident at The Trails at Avian Glen. We believe that this
is what is contemplated in the Declaration. Also, we
believe that it was made very clear in the correspondence
and marketing materials used in connection with lot sales
at Avian Trails that the owners of homes built on the other
side of Cherry Tree Road would share in the use of the
Avian Trails pool, cabana and related amenity facilities,
which were planned, designed and constructed at a cost of
over $250,000 (exclusive of land) for the benefit of
neighbors on both sides of Cherry Tree Road. Indeed, on
January 15, 1999, the land that will comprise the
development across the street was formally annexed by us,
in our capacity as Developer, to the existing portion of
A¥ian Trails located on the west side of Cherry tree Road
in accordance with Section 12.7 of the Declaration (which
provides that such annexation by the Developer requires no
approvals or other action by residents in the community or
the oard of Directors of the Association).
Having said this, we have met with and spoken to
numerous Avian Trails residents who have objected to
including the new homeowners in the existing Association.
With this in mind, we have included as an agenda item for
the May 10, 1999 meeting the question whether existing
Avian Trails residents would prefer to (i) include future
neighbors across Cherry Tree Road in the Avian Trails
Association, as originally contemplated by the Developer,
or (ii) have the Developer rescind the annexation of the
land across the street and create a separate, stand-alone
homeowners association for the neighbors who will live in
that area. Again, as the Developer, we have no strong
preference which structure is ultimately adopted. If the
second alternative is adopted at the May 10, 1999 meeting,
there will be a Joint Use and Maintenance Agreement entered
into by the two associations whereby the residents across
the street will have the non-exclusive right to use the
Avian Trails swimming pool/amenity area and the new
association will be obligated to pay the pro rata cost of
maintaining the swimming pool/amenity area. With the
exception of this Joint Use and Maintenance Agreement,
there would be no other connection or relationship of any
kind between the east and west sides of Cherry Tree Road or
the neighbors occupying homes in the two areas.
I hope that the foregoing information is useful to
those desiring to attend the meetin~ of May 10, 1999.
Meantime, if you should have any questions, please don't
hesitate to contact me at 595-2903.
Sincerely,
ire
President of Development
NOTICE
This NOTICE, dated April 23, 1999, is given to Members of The Trails at Avian Glen
Community Association, Inc. in accordance with the Article III of the By-Laws of the
Association in connection of a meeting of Members of the Association to be held 6n Monday,
May 10, 1999, at 7:00 p.m. at the Cannel Clay School Administration Building located on the
south side of the intersection of Main Street and Cherry Tree Road.
At the meeting, Members will be asked to consider and act upon the following matters:
1. To decide whether at this time to elect new members of the Board of Directors
of the Association to replace the members initially appointed by the Developer.
2. Assuming that it is decided at the meeting to elect new members of the Board of
Directors, to hold such election (with nominations taken from the floor at the
meeting).
3. To decide whether the Association should formally request that the Developer
rescind the annexation of the land comprising the planned new development of
additional lots on the east side of Cherry Tree Road in order to exclude this area from
the Real Estate presently covered by the Declaration of Covenants, Conditions and
Restrictions of The Trails at Avian Glen (so that residents of the new development
will not become Members of The Trails at Avian Glen Community Association, Inc.)
with the understanding that, in lieu of annexing the new development into The Trails
of Avian Glen (as was originally contemplated by the Developer), a Joint Use and
Maintenance Agreement (dral~ copy enclosed with this Notice) will be entered into by
The Trails at Avian Glen Community Association, Inc., on the one hand, and a
separate homeowners association created for the new development, on the other hand,
whereby residents of both communities will share the .right to use the existing Avian
Trails swimming pool/amenity area and the two associations will share equally the
costs of maintaining the swimming pool/amenity area.
Each of the foregoing matters will be presented to persons attending the meeting on May
10, 1999 and will be acted upon by vote of a majority of Members present at the meeting in
person or by proxy. It is also contemplated that, if a new Board of Directors is elected at the
meeting, the new Board members will elect new officers of the Association in accordance with
Article VIII of the By-Laws. All terms used but not otherwise defined in this Notice shall have
the meanings contained in the Declaration of Covenants, Conditions and Restrictions of The
Trails at Avian Glen.
Secretary
JOINT USE AND MAINTENANCE AGREEMENT
DRAFT
APR 2 1999
This Agreement ("Agreement") made and entered into as of the __ day of 1999, by and
between The Trails at Avian Glen Community Association, Inc., an Indiana not-for-profit corporation
('The Trails at Avian Glen"), and Emerald Crest Community Association, lac., an Indiana not-for-profit
corporation ("Emerald Crest") (collectively. the 'Associations" or singly, an 'Association") and Davis ' '
Homes, LLC, an Indiana limited liability company ('Developer'). :' .
WITNESSETH, THAT:
WHEREAS, reference is made to that certain Declaration of Covenants, Conditions and
Restrictions of The Trails at Avian Glen, dated September 5. 1995, filed as Instrument No. 9551394 in
the Office of the Recorder of Hamilton County, Indiana ('Office of the Recorder') as supplemented by
that certain Second Supplement to Declaration of Covenants, Conditions and Restrictions of The Trails at
Avian Glen, dated June 3, 1998, filed as Instrument No. 9809836786 in the Office of the Recorder
(collectively, "The Trails at Avian Glen Declaration") in connection with which The Trails at Avian Glen
was formed for the purpose of exercising certain functions with respect to the residential subdivision
described on Exhibit #A" attached hereto and made a part hereof ("The Trails at Avian Glen
Subdivision"),
WHEREAS, the development of The Trails at Avian Glen included the construction of certain
improvements in 'Common Area B.G." as designated, defined and depicted in the plat for The Trails at
Avian Glen, Section Nine, recorded as Instrument No. 9609630227 in the Office of the Recorder
("Common Area B.G.") which improvements include a swimming pool with bathhouse, parking area,
basketball goal and landscaping as described on Exhibit "B~ attached hereto and made a pan hereof
(collectively, with Common Area B.G., the "Amenities").
WHEREAS, Emerald Crest was formed for the purpose of exercising certain functions with
respect to a residential subdivision described on Exhibit 'C' attached hereto and made a part hareof to he
known as Emerald Crest at Hazel Dell Summit (the *Emerald Crest Subdivision') to be developed by
Developer.
WHEREAS, The Trails at Avian Glen, Emerald Crest and Developer wish to provide for the
common use and enjoyment of the Amenities and Cmnmon Area B.G. for the common use, benefit and
enjoyment of the lot owners in The Trails at Avian Glen Subdivision and Emerald Crest Subdivision
(collectively, the #Subdivisions" or singly, a 'Subdivision").
WHEREAS, the parties hereto have entered into this Agreement for the purpose of creating such
rights and establishing control over the maintennnce and use of the Amenities as well as the collection of
assessments from owners of platted lots within the Subdivisions in a uniform and non-discriminatory
manner, solely respecting the Amenities.
WHEREAS, The Trails at Avian Glen Subdivision is comprised of 151 platted lots and the
Emerald Crest Subdivision, when platted, is expected to be comprised of 114 platted lots, for a total of
265 platted lots.
NOW, THEREFORE, for and in consideration of the foregoing premises, the mutual promises
herein comained. One Dollar ($1.00) and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged by Developer. The Trails at Avian Glen and Emerald
Crest. the parties hereto agree as follows:
1. Recitals. The foregoing recitals are iecorporated herein by this reference and made a part of
this Agreement.
2. Ioint Use. The Trails at Avian Glen hereby grants a non-exclnsive easement in favor of each
owner of lots within the Emerald Crest Subdivision for the use and enjoyment of the Amenities and
Common Area B.G., subject to any reasonable and non-discriminatory rules and regulations promulgated
by the Management Committee (as defined in paragraph 3 below) from time to time, subject to the terms
hereof.
3. lVfana~ement Commi.ee. There shall he, nnd hereby is, created and established a
'Management Committee' to control and perform the functions provided for in paragraph 4 below on
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DRAFT
behalf of the respective Associations. The Management Committee shall consist of four (4) members.
Each Association shall appoint and maintain two (2) persons from among its officers or directors to serve
as a member of the Management Committee on behalf of such Association. The Management Committee
shall meet to conduct business at such regular intervals as a majority of the members thereof shall
reasonably agree, consistent with good business practice. Special meetings of the Management
Committee may be called at any time by any member of the Management Committee. Written notice of
such a meeting shall be sent to each member of the Management Committee at such member's residence
or usual place of business, at least ten (10) days before the date of the meeting, stating the place, day and
hour of the meeting, and the purpose or purposes for which the meeting is called. Attendance at any
meeting shall constitute a waiver of notice of such meeting. At any meeting of the Management
Committee, each member shall be entitled to one (1) vote and a majority oftbe votes entitled to be cast on
the business to be transacted at such meeting shall be necessary for the transaction of any business at the
meeting. Minutes shall be kept of each meeting of the Management Committee recording in reasonable
detail all actions taken and decisions made. Each member of the Management Committee shall be
responsible for coordinating the timely remittance of funds payable hereunder by such member's
Association to the chairman of the Management Committee. In mm, the chairman of the Management
Committee shall be responsible for remittance of such funds to the proper persons in payment of costs
incurred with respect to the Amenities as provided in paragraph 4 below. Notwithstanding the foregoing
or anything set forth elsewhere to the contrary, including, without limitation, any declarations or
organizational documents of the Subdivisions and/or Associations now or berealter executed or recorded,
it is agreed that until Developer or any of its affiliates no longer owns any lots within the Subdivisions:
each Association shall appoint a representative designated by Developer to represent such Association as
one of such Association's members of the Management Committee, and one of such persons designated
by Developer shall serve as chairman of the Management Committee. On or before the time that
Developer no longer owns any Iota within the Subdivisions, Developer on behalf of the Subdivisions shall
by notice to the parties call a meeting of the Associations to elect the first chairman and successor
members of the Management Committee to succeed the chairman and member designees of Developer.
4. Responsibilities and Powers of Parties. The Management Committee shall be responsible for
the Amenities, including, but not limited to: (i) maintenance and operation of the Amenities as the
Management Committee shall deem necessary or appropriate, (ii) procuring and maintaining appropriate
insurance coverage as the Management Committee deem necessary or appropriate, (iii) payment of taxes
assessed against and payable with respect to the Amenities, (iv) assessment and collection of dues from
the owners of lots within the Subdivisions to fund the expenses inenrred to maintain and operate the
Amenities, (v) performing or contracting for the provision of services for the maintenance and operation
of thc Amenities or other services as the Management Committee shall deem necessary or advisable, (vi)
promulgating and enforcing rules and regulations enneeming the use of the Amenities as the Management
Committee shall deem necessary or advisable.
(a) All costs incurred with respect to the Amenhies, including, without limitation, costs relating to
the maintenance, operation and improvement thereof, but excluding costs relating to the initial
construction of the Amenities, shall be shared and paid 43% by Emerald Crest and 57% by The Trails at
Avian Glen; provided that there are 1_51 platted lots within the Trails at Avian Glen Subdivision and 114
platted lots within the Emerald Crest Subdivision. If the number of platted lots within a Subdivision
differs from that which is provided for herein, the cost sharing ratio referred to herein shall be adjusted
appropriately so that costs are shared pro rata based upon the actual number of platted lots within each
such Subdivision. Each Association hereto shall be responsible for assessing and collecting dues from the
lot owners within their respective Association's Subdivision pursuant to the terms of their respective
declarations and organizational documents to enable such Association to pay its respective share of the
costs referred to herein. Such costa shall be payable by each Association at least quarterly, unless the
Management Committee unanimously agrees to a different payment schedule. If an Association shall
default hereunder, no owner of a lot within such Association's Subdivision shall have the right to use the
Amenities until such default is cured.
(b) Each Association (the 'Assigning Association#) hereby collaterally assigns to thc other
Association (the 'Assignee Association") all of the Assigning Association's right (but not obligation) to
collect dues from the lot owners within the Assigning Association's Subdivision pursuant m the terms of
their respective declarations and organizational documents to the extent necessary to secure the Assigning
Association's obligation to pay the Assigning Association's respective share of the costs referred to
herein, including, but not limited to, the right to exercise the Assigning Association's lien rights
-2-
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-3-
DRAFT'
IN WITNESS WHEREOF, the undersigned p'~ies have ex~euted this Agreement as of the day
and year first above written.
TRAILS AT AVIAN GLEN ASSOCIATION, INC.,
an Indiana not-for-profit corporntion
By:
Prinu~l Name:
Title:
("The Trails at Avian Glen")
EMERALD CREST COMMUNITY
ASSOCIATION, INC., an Indiana not-for-profit
corporation
By:
Christopher R. White, President
('Emerald Crest')
DAVIS HOMES, LLC, an Indiana limited liability
Company
By: Davis Holding Corporation, Managing Member
By:
C. Richard Davis, President
('Developer")
-4-
DI AFT
STATE OF INDIANA )
) SS:
COUNTY OF MARION )
Before me, a Notary Public in and for said County and State, personally appeared
, the of The Trails at Avian Glen Association, loc, an Indiana not-for-
profit corporation, who acknowledged the execution of the foregoing Joint Use and Maintenance
Agreement and who, having been duly sworn, stated that any representations therein contained are true.
Witness my hand and notarial seal this __ day of ,1999,
My Commission Expires:
My County of Residence:
Notary Public
Printed Name:.
· STATE OF INDIANA )
) SS:
COUNTY OF MARION )
Before me, a Notary Public in and for said County and State, personally appeared Christopher R.
White, the President of Emerald Crest Community Association, Inc., an Indiana not-for-profit
corporation, who acknowledged the execution of the foregoing Joint Use and Maintenance Agreement and
who, having been duly sworn, stated that any representations therein contained are true.
Witness my hand and notarial seal this __ day of ., 1999.
My Commission Expires:
My County of Residence:
Notary Public
Printed Name:.
STATE OF INDIANA )
) SS:,
COUNTY OF MARION )
Before me, a Notary Public in and for said County and State. personally appeared C. Richard
Davis. President of Davis Homes, LLC, an Indiana limited liability company, by its manager, Davis
Holding Corporation, an Indiana corporation, who acknowledged the execution of the foregoing Joint Use
and Maintenance Agreement and who, having been duly sworn, stated that any representations therein
contained are true.
Witness my hand and notarial seal this __ day of ,1999.
My Commission Expires:
My County of Residence:
Notary Public
Printed Name:.
This instrument was prepared and return record instrument to C. Richard Davis, Davis Homes, LLC,
3755 E. 82'~ Street, Suite 120, Indianapolis, Indiana 46240.
-5-
D AFT
Exhibit A -
Exhibit B -
Exhibit C -
Legal/Plat Description of The Trails at Avian Glen Subdivision (Sections 8,9 and 10)
Description of Amenities and Common Area B.G.
Legal Description of Emerald Crest Subdivision
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EXHIBIT ~A~
D AFT
The Trails at Avian Glen Subdivision Section Eight, Clay Township, Hamilton County, Indiana,
as per plat thereof recorded as Instrumcn~ No. 94-5135 in the Office of the Recorder of Hamilton County,
Indiana.
The Trails at Avian Glen Subdivision Section Nine, Clay Township, Hamilton County, Indiana, as per
plat thereof recorded ns Instrument No. 9609630227 in the Office of the Recorder of Hamilton County,
Indiana.
The Trails at Avian Glen Subdivision Section Tcn, Clay Township, HamilWn County, lo. diana, as per plat
thereof recorded ns Insa'umcnt No. 9809844216 in the Office of the Recorder of Hamilton County,
Indiana.
DRAFT
EXHIBIT *B"
30' x 75' in-ground swimming pool, 1§' x I$' baby pool with bail, house and ancillary operating
equipment and facilities.
Asphalt parking area with basketball goal.
Landscaped area around pool and ba~hho~e.
All of the above located within Common Area B.G.
CH = 98.58'
CH8 -= NlO'30'41"W
COMMON AREA
DRIVE
-.------- / POINT OF BEOINNINGI
;321 527'55'06'E
~.ooo $~ '~ 26.00'
~. Norr, h
60.42'
~'23'E THE TRAI~ AT
AVIAN GLEN
SECT[ON NINE -
.A = 13'4,3'57'
R - 225.00'
L = 53.93°
CH - 53.80'
CHB -. N40'l.3',36'E
INCH[$
lO0'
FEET
SF_~O~Y PI. AT
ADDITION TO HAM~_ ~TON COUNTY, INDIANA
EXHIBIT "C"
EMERALD CREST
Pen oF thc Northesd Qunfl~ end tim Horthv/est (~er of'-qestlon 2g. Township I $ Hoflh.
Rnngo 4 ~.nst. [.ocato In Cie)' Township. HeinZ!ton Count)'. lndhmn, described ss follows:
Commcncinl: at tin: -qoulhcast Qunfler of'snld Scctlon 28; thcncc North gl) degrees 35 mlnutcs
2'1 seconds West along thc -qoLlth llnc ehcrcorn dlsinnc~ o£$79.48 f`cc! to n rnlirond splkc ut the
Point of Beginnlni:: thence continnin.. North 80 degrees 35 minutcs 24 seconds West along sum
South tine n dlslence of'2086.!:5 £cct to n l)rnss Plug merkl,g die $outl~wcst corncr
Norihcnst Qufldcr; thence North 00 degrees :54 mimttcs 3g sccollds Wcsl clang thc ccntcfline of'
Cherry Irce Avenue n disfflncc of 276.00 fcct lo e belt'inch rcbnr; thence Norfl~ 43 degrees 49
mlnufcs :53 seconds 'Enst nlo.g snld ccnlerliflc n distnnce of'2204.Tg f'¢ct to ~ rnilrond spike;
thence South 89 dcgrces 39 rflinules 16 sccands Eest n dlstnncc of:574.92 f'ecl to n :5/8 incl~ ~cbn¢
with ploslie cap stamped # S(:HNI~IDEP. ~NO l~lRJvf #0001"; thence South 00 degrees 20
minutes 43 seconds West n dislnncc o£ 18'/7.95 £cet lo tl~ Point of BeKlnnlng. Conlnlning
62.263 ncres, moro or less.
Exoopt,
P4d or Ih #oflbm~ Quoter or SccU0n :28 of Townsh~) se H~tA. bngo 4 ~k ~ h ooy T~ ~t~ ~ly.
~ ~t ~ ~. b~ ~ bur · ~t~, ~ 5~9.40 f,~ b. rolr~ ,p~ ~e N~ ~ ~ ~
~utes 43 ~ ~t p~d with ~o e~t he of s~d N~thHst ~l~ o ~st~ce of 01~ bet ~o b ~T ~
~ thrace ~tbuhg H~ ~ degrees 20 ~utes 4~ secmds Cast ~rdld ~th ~ E~t ~e o ~tm~ o~
g~20 feet: ~ N~ ~ ~Ks 39 m~tes J6 o~s W~ a ~stmce o[ ~J9.79 ~t: ~hen~ b~ 43 d~u 49
M~t~ ~ ~ds W~ p~ Wl~ the ~C O~ ~My Trc~ K~ o ~t~ce of 0~ ~t to d poht ~ ~e
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 the 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 comained in the Declaration of Covenants, Conditions
and Restrictions of The Trails at Avian Glen, dated August 29, 1995 and recorded on September
25, 1995 es 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 Olen
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 the fullest extent possible. Capitalized terms 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 fights-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.
COMMON AREAS. There are areas of ground on the Plat marked "Common Area".
Developer hereby declares, creates and grants 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. The 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 the 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 Easemem, 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.
The 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 waikways, 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,
walkways, 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 maintained upon
said Landscape Easements.
REGULATED 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 of said 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.
BUILDINO 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.
RESIDENTIAL UNIT SIZE AND OTHER REOUIREMENTS. No residence
constructed on a Lot shall have less than~i~t~en hundred (1600)~ square feet of total living
area, exclusive of garages, carports and open porches in the case of one story structure.
Each Residence Unit shall include an attached two-car (or larger) enclosed garage.
The maximum height of any residential dwelling constr~cted on a Lot shall be twenty-five
(25) feet measured from finished grade to the underside ofthe 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 buildingsl 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 of such 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 of a 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.
TEMPORARY 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 of a 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 of any kind may be put up on blocks or jacks to accommodate car repair on a Lot
unless such repairs are done in the garage. Disabled vehicles shall not be allowed to
remain in open public view.
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.
16.
17.
18.
19.
20.
21.
22.
2:3.
GARBAGE AND REFUSE DISPOSAL. Trash and refuse 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 open
public vieW~ No rubbish, garbage or other waste shall be allowed to accumulate on any
Lot. No homeowner or occupant of a Lot shall burn or bury any garbage or refuse. All
garbage, trash cans and receptacles and woodpiles shall be screened.
STORAGE 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 of sewage 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 (1) 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
5
24.
25.
26.
27.
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 toru 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 EQUIPMENT. 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.
SOLAR PANELS. No solar heat panels shall be permitted on roofs of any structures in
the Subdivision. All such panels shall be enclosed within fenced areas and shall be
concealed from the view of neighboring Lots, common areas and the streets.
OUTSIDE LIGHTING. 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 coruer, 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 grounds for an action by the Developer, the Association or any person or entity having
any right, tire 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
29.
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.
CARMEL 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 run in favor of the Carmel Plan Commission; provided that nothing herein
shall be construed to prevent the Cannel Plan Commission from enforcing any provisions
of the Subdivision Control Ordinance, as amended, or any conditions attached to approval
of the Plat by the Plat Committee.
AMENDMENT. 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 after 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 binding upon all persons or entities from
time to time having any right, title or interest in the Real Estate and on all persons or
entities claiming under them, until December 31,2012 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.
SEVERABILITY. 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, as 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,
By:
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 Corporation, an Indiana corporation,
and acknowledged the execution of this instrument as his voluntary act and deed as such officer
on behalf of such 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 Ronald F. Shady, Jr., Vice President of Davis Holding
Corporation, 3755 East 82nd Street, Suite 120, Indianapolis, Indiana 46240 (317) 595-2900.
8
DECLARATION OF COVENANTS. CONDITIONS AND RESTRICTIONS
HAZEL DELL SUMMIT
THIS DECLARATION ("Declaration") is made this day of
by Hazel Dell Summit Company, an Indiana corporation ("Developer").
1999
Recitals
1. Developer is the owner of the real estate which is described in Exhibit "A" attached
hereto and made a part hereof (the "Initial Real Estate").
2. Developer intends to subdivide the Initial Real Estate into residential lots.
3. Before subdividing the Initial Real Estate, Developer desires to subject the Initial Real
Estate to certain covenants, conditions and restrictions for the purpose of preserving and
protecting the value and desirability of the Initial Real Estate for the benefit of each owner of any
part thereof.
4. Developer further desires to create an organization to which shall be assigned the
responsibility for maintaining and administering the common areas and certain other areas of the
Real Estate and of administering and enforcing the covenants and restrictions contained in this
Declaration and the subdivision plats of the Initial Real Estate as hereafter recorded in the office
of the Recorder of Hamilton County, Indiana and of collecting and disbursing assessments and
charges as herein provided.
5. Developer may from time to time subject additional real estate located within the tracts
adjacent to the Initial Real Estate to the provisions of this Declaration (the Initial Real Estate,
together with any such addition, as and when the same becomes subject to the provisions of this
Declaration as herein provided, is hereinafter referred to as the "Real Estate" or the
"Subdivision").
NOW, THEREFORE, Developer hereby declares that the Real Estate is and shall be
acquired, held, transferred, sold, hypothecated, leased, rented, improved, used and occupied
subject to the following covenants, conditions and restrictions, each of which shall run with the
land and be binding upon, and inure to the benefit of, Developer and any other person or entity
hereafter acquiring or having any right, title or interest in or to thc Real Estate or any part thereof.
ARTICLE I
DEFINITIONS
The following terms, when used in this Declaration with initial capital letters, shall have
the following respective meanings:
1.I "Access Easement" means those areas of ground so designated on a Plat of any part
of the Real Estate.
1.2 "Association" means Hazel Dell Summit Community Association, Inc., an Indiana
not-for-profit corporation, which Developer has caused or will hereafter cause to be incorporated,
and its successors and assigns.
1.3 *Architectural Review Committee" means the architectural review committee
established pursuant to Paragraph 6.1 of this Declaration.
1.4 "Common Areas" means (i) all portions of the Real Estate shown on any Plat cfa part
of the Real Estate as a "Common Area" or which are otherwise not located in Lots and are not
dedicated to the public and (ii) all facilities, structures, buildings, improvements and personal
property owned or leased by the Association from time to time. Common Areas may be located
within a public fight-of-way.
1.5 "Common Expenses" means (i) expenses associated with the maintenance, repair or
replacement of the Common Areas and the performance of the responsibilities and duties of the
Association, including without limitation expenses for the improvement, maintenance or repair of
the improvements, lawn, foliage and landscaping located on a Drainage, Utility or Sanitary Sewer
Easement or on a Landscape Easement to the extent the Association deems it necessary to
maintain such easement, (ii) expenses associated with the maintenance, repair or continuation of
the drainage facilities located within and upon the Drainage, Utility or Sanitary Sewer Easements,
(iii) all judgments, liens and valid claims against the Association, (iv) all expenses incurred to
procure liability, hazard and any other insurance provided for herein and (v) all expenses incurred
in thc administration of the Association or the performance of the terms and provisions of this
Declaration.
2
1.6 "Developer" means Hazel Dell Summit Company, an Indiana corporation, and any
successors or assigns whom it designates in one or more written recorded instruments to have the
rights of Developer hereunder.
1.7 "Development Period" means the period of time commencing with the date of
recordation of this Declaration and ending on the date Developer or its affiliates no longer own
any Lot within the Real Estate, but in no event shall the Development Period extend beyond the
date seven (7) years after the date this Declaration is recorded.
1.8 "Landscape Easements" means those areas of ground so designated on a Plat of any
part of the Real Estate.
1.9 "Lot" means any parcel of land shown and identified as a lot on a Plat of any part of
the Real Estate.
1.10 "Mortgagee" means the holder cfa duly recorded first mortgage lien on any Lot or
Residence Unit.
1.11 "Owner" means the record owner, whether one or more persons or entities, of
fee-simple rifle to any Lot, including contract sellers, but excluding for all purposes those persons
or entities having an interest merely as security for the performance of an obligation unless
specifically indicated to the contrary. The term Owner as used herein shall include Developer so
long as Developer shall own any Lot in the Real Estate.
1.12 "Plat" means a duly approved final plat of any part of the Real Estate as hereafter
recorded in the office of the Recorder of Hamilton County, Indiana.
1.13 "Residence Unit" means any single family home constructed on any part of the Real
Estate.
1.14 "Utility, Drainage or Sanitary Sewer Easements" means those areas of ground so
designated on a Plat of any part of the Real Estate.
ARTICLE II
APPLICABILITY
All Owners, their tenants, guests, invitees and mortgagees, and any other person using or
occupying a Lot or any other part of the Real Estate shall be subject to and shall observe and
comply with the applicable covenants, conditions and restrictions set forth in this Declaration and
any rules and regulations adopted by the Association as herein provided, as the same may be
amended from time to time.
The Owner of any Residence Unit (i) by acceptance of a deed conveying title thereto or
the execution of a contract for the purchase thereof, whether from the Developer or its affiliates
or any other builder or any other 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 and restrictions of
this Declaration. By acceptance of a deed, execution of a contract or undertaking of such
occupancy, each Owner covenants, for such Owner, such Owner's heirs, personal representatives,
successors and assigns, with Developer and the other Owners from time to time, to keep, observe,
comply with and perform the covenants, conditions and restrictions of this Declaration.
ARTICLE III
PROPERTY RIGHTS
3.1 Owners' Eiisement of Enjoyment of Common Areas. Developer hereby declares,
creates and grants a non-exclusive easement in favor of each Owner for the use and enjoyment of
the Common Areas. Such easement shall run with and be appurtenant to each Lot and related
Residence Unit, subject to the following provisions:
(i) the right of the Association to charge reasonable admission and other fees for
the use of any recreational facilities situated upon the Common Areas which are in addition to the
regular and special assessments described herein;
(ii) the right of the Association to fine any Owner or make a special assessment
against any Lot in the event a person permitted to use the Common Areas by the Owner of such
Lot violates any rules or regulations of the Association;
(iii) the fight of the Association to dedicate or transfer all or any part of the
Common Areas or grant easements therein to any public agency, authority or utility for such
purposes and subject to such conditions as may be set forth in the instrument of dedication or
transfer;
(iv) the easements reserved elsewhere in this Declaration and in any Plat of any
part of the Real Estate; and
3.2 Permissive Use. 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 right of use and enjoyment
of the Common Areas subject to the terms of this Declaration and any rules and regulations
promulgated by the Association from time to time.
3.3 Conveyance of Common Areas. Developer may at any time and from time to time
convey all of its right, title and interest in and to any of the Common Areas to the Association by
warranty deed, and such Common Areas so conveyed shall then be the property of the
4
A~sociation; provided, however, that the Common Areas for the Initial Real Estate and any
additional lands added to the scheme of this Declaration, respectively, shall be conveyed to the
Association on or before the time that the first Lot within the Initial Real Estate or such additional
land, respectively and as the case may be, is conveyed for residential use.
ARTICLE IV
USE RESTRICTIONS
4.1 Lakes. There shall be no swimming, skating, boating, fishing in or on or other
recreational use of any lake, pond, creek, ditch or stream on the Real Estate. The Association
may promulgate rules and regulations with respect to the permitted uses, if any, of the lakes or
other bodies of water on the Real Estate.
4.2 Uso of Common Areas. Subject to section 4.1 above, the Common Areas shall be
used only for recreational purposes and other purposes permitted or sanctioned by the
Association.
4.3 Lot Access. All Lots shall be accessed from the interior streets of the Subdivision.
4.4 Other Use Restrictions Contained in Plat Covenants and Restrictions. The Plat
Covenants and Restrictions relating to the Real Estate contain additional restrictions on the uso of
the Lots in the Subdivision, including, without limitation, prohibitions against commercial use,
detached accessory buildings and nuisances; restrictions relating to the use of Landscape
Easements, and Utility, Drainage and Sanitary Sewer Easoments; and restrictions relating to
temporary structures, vehicle parking, signs, mailboxes, garbage 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 incorporated by
reference as though fully set forth herein.
ARTICLE V
ASSOCIATION
5.1 Membership. Each Owner shall automatically become a member of the Association
and shall remain a member of the Association so long as he or she owns a Lot.
5.2 Classes of Membership and Vote. The Association shall have two (2) classes of
membership, as follows:
(i) Class A Members. Class A members shall be all Owners other than Developer
(unless Class B membership has been converted to Class A membership as provided in the
immediately following subparagraph). Each Class A member shall be entitled to one (1) vote per
Lot owned.
(ii) Class B Member. The Class B member shall be 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 and be converted to Class A membership upon the Applicable Date (as
defined in Section 5.3 below).
5.3 Annlicable Date. The term "Applicable Date" shall mean when the total votes
outstanding in the Class A membership is equal to the total votes outstanding in the Class B
membership or the expiration of the Development Period, whichever shall first occur.
5.4 Moltipl~ or Entity Owners. Where more than one person or entity constitutes the
Owner of a Lot, all such persons or entities shall be members of the Association, but the single
vote in respect of such Lot shall be exercised as the persons or entities holding an interest in such
Lot determine among themselves. In no event shall more than one person exercise a Lot's vote
and no Lot's vote shall be split.
5.5 Board of Directors. The members of the Association shall elect a Board of Directors
of the Association as prescribed by the Association's Articles of Incorporation and By-Laws. The
Board of Directors of the Association shall manage the affairs of the Association.
5.6 Professional Manaeement. No contract or agreement for professional management of
the Association, nor any contract between Developer and the Association, shall be for a term in
excess of three (3) years. Any such agreement or contract shall provide for termination by either
party with or without cause, without any termination penalty, on written notice as provided
therein, but in any event, with at least ninety (90) days prior written notice.
5.7 Responsibilities of the Association. The responsibilities of the Association shall
include, but shall not be limited to:
(i) Maintenance of the Common Areas including any and all improvements thereon
as the Association deems necessary or appropriate.
(ii) Installation and replacement of any and all improvements, signs, lawn, foliage
and landscaping in and upon the Common Areas or Landscape Easements as the Association
deems necessary or appropriate.
(iii) Maintenance, repair and replacement of any entrance street light, any private
street signs and any private streets which may be shown on any Plat of a part of the Real Estate as
Common Area.
6
(iv) Replacement of the drainage 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 each Owner ora Lot subject to a Drainage Easement to keep the portion
of the drainage system and Drainage Easement on such Lot free from obstructions so that the
storm water drainage will be unimpeded.
(v) Maintenance of lake water so as not to create stagnant or polluted waters
affecting the health and welfare of the community.
(vi) Procuring and maintaining for the benefit of the Association, its officers and
Board of Directors and the Owners, the insurance coverage required under this Declaration.
(vii) Assessment and collection from the Owners and payment of all Common
Expenses.
(viii) Performing or contracting for property or Association management, snow
removal, Common Area maintenance, trash removal or other services as the Association deems
necessary or advisable.
(ix) Enforcing the rules and regulations oftbe Association and the requirements of
this Declaration and any applicable zoning or other recorded covenants, in each case, as the
Association deems necessary or advisable.
5.8 Powers 0fthe Association. The Association may adopt, amend or rescind reasonable
rules and regulations (not inconsistent with the provisions of this Declaration) governing the use
and enjoyment oftbe Common Areas and the management and administration of the Association,
in each case as the Association deems necessary or advisable. The rules and regulations
promulgated by the Association may provide for reasonable interest and late charges on past due
installments of any regular or special assessments or other charges or fines against any Owner or
Lot. The Association shall furnish or make copies available of its rules and regulations to the
Owners prior to the time when the rules and regulations become effective.
5.9 Compensation. No director or officer of thc Association shall receive compensation
for his or her services as such director or officer, except to the extent expressly authorized by a
majority vote of the Owners present at a duly constituted meeting ofthe Association members.
5.10 Non-Liability of Directors and Officers. The directors and officers of thc Association
shall not be liable to the Owners or any other persons for any error or mistake of judgment in
carrying out their duties and responsibilities as directors or officers oftbe Association, except for
their own individual willful misconduct or gross negligence. It is intended that the directors and
7
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 Directors and Officers. The Association shall indemnify, hold harmless
and defend any person, his or her heirs, assigns and legal representatives (collectively, the
"Indemnitee") made or threatened to be made a party to any action, suit or proceeding by reason
of the fact that he or she is or was a director or officer oftbe Association, against all costs and
expenses, including attorneys fees, actually and reasonably incurred by the Indemnitee in
connection with the defense of such action, suit or proceeding, or in connection with any appeal
thereof or to enforce the indemnity rights contemplated hereby except in relation to matters as to
which it shall be adjudged in such action, suit or proceeding that such lndemnitee is guilty of
gross negligence or willful misconduct in the performance of his or her duties. The Association
shall also reimburse any such Indemnitee for the reasonable costs of settlement of or for any
judgment rendered in any such action, suit or proceeding, unless it shall be adjudged in such
action, suit or proceeding that such Indemnitee was guilty of gross negligence or willful
misconduct. In making such tindings and notwithstanding the adjudication in any action, suit or
proceeding against an Indenmitee, no director or officer shall 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
Association or statements or advice made by or prepared by any managing agent of the
Association or any accountant, attorney or other person or firm employed or retained by the
Association to render advice or service, unless such director or officer had actual knowledge of
the falsity or incorrectness thereof~ nor shall a director be deemed guilty of gross negligence or
willful misconduct by virtue of the fact that he or she failed or neglected to attend any meetings of
the Board of Directors oftbe Association. The costs and expenses incurred by any Indemnitee in
defending any action, suit or proceeding may be paid by the Association in advance of the final
disposition of such action, suit or proceeding upon receipt of an undertaking by or on behalf of
the Indemnitee to repay the amount paid by the Association if it shall ultimately be de~ermined
that the Indemnitee is not entitled to indemnification or reimbursement as provided in this section
5.11.
ARTICLE VI
ARCHITECTURAL 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-
ment Period, the Architectural Review Committee shall consist of three (3) members appointed,
from time to time, by Developer and who shall be subject to removal by Developer at any time
with or without cause. After the end of the Development Period, the Architectural Review
Committee shall be a standing committee of the Association, consisting of three (3) persons
appointed, from time to time, by the Board of Directors of the Association. The three persons
appointed by the Board of Directors to the Architectural Review Committee shall consist of
8
Owners of Lots but need not be members oftbe Board of Directors. The Board of Directors may
at any time after the end of the Development Period remove any member of the Arohitec~ural
Review Committee upon a majority vote of the members of the Board of Directors.
6.2 Purposes and Powers of Architectural Review Committee. The Architectural Review
Committee shall review and approve the design, appearance and location of all residences,
structures or any other improvements placed or modified by any person on any Lot and the
installation and removal of any trees, bushes, shrubbery and other landscaping on any Lot, in such
a manner as to preserve the value and desirability of the Real Estate and the harmonious
relationship among Residence Units and the natural vegetation and topography.
(i) In General. No residence, building, structure, antenna, walkway, fence, deck,
pool, tennis court, basketball goal, wall, patio or other improvement of any type or kind shall be
erected, constructed, placed or modified, changed or altered on any Lot without the prior written
approval of the Architectural Review Committee. Such approval shall be obtained only after
written application has been made to the Architectural Review Committee by the Owner of the
Lot requesting authorization from the Architectural 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, shall be
accompanied by two (2) complete sets of plans and specifications for the proposed improvement.
Such plans shall include plot plans showing the location of all improvements existing upon the Lot
and the location of the improvement proposed to be constructed or placed upon the Lot, each
properly and clearly designated. 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 Architectural Review Committee may reasonably
require. Unless otherwise permitted by the Architectural Review Committee, plot plans shall be
prepared by either a registered land surveyor, engineer or architect.
(ii) Power of Disapproval. The Architectural Review Committee may refuse to
approve any application (a HRequested Change~) made to it 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
of the terms of this Declaration or the Plat Covenants and Restrictions applicable
to any part oftbe Real Estate;
(b) The design or color scheme of a Requested Change is not in harmony
with the general surroundings of the Lot or with the adjacent Residence Units or
related improvements; or
(c) The Requested Change in the opinion of the Architectural Review
Committee would not preserve or enhance the value and desirability of the Real
9
Estate or would otherwise be contrary to the interests, welfare or rights of the
Developer or any other Owner.
(iii) Rules and Regulations. The Architectural Review Committee, from time to
time, may promulgate, amend or modify additional rules and regulations or building policies or
procedures as it may deem necessary or desirable to guide Owners as to the requirements of the
Architectural Review Committee for the submission and approval of Requested Changes.
6.3 Duti0s of Architectural Review Committee. If the Architectural Review Committee
does not approve a Requested Change within forty-five (45) days after all required information on
the 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 for its permanent files.
6.4 Liability of the Architectural Review Committee. Neither the Architectural Review
Committee, the Association, the Developer nor any agent or member of any of the foregoing,
shall be responsible in any way for any defects in any plans, specifications or other materials
submitted to it, nor for any defects in any work done in connection with a Requested Change or
for any decision made by it unless made in bad faith or by willful misconduct.
6.5 Inspection. The Architectural Review Committee or its designee may, but shall not be
required to, inspect work being performed to assure compliance with this Declaration and the
materials submitted to it pursuant to this Article VI and may require any work not consistent with
an approved Requested Change, or not approved, to be stopped and removed at the offending
Owner's expanse.
ARTICLE VII
ASSESSMENTS
7.1 Purpose of Assessments. Each Owner of a Lot by acceptance for itself and related
entities of a deed therefor, whether or not it shall be so expressed in such deed, is deemed to
covenant and agree to pay to the Association for 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 ("Special Assessments"). Such
assessments shall be established, shall commence upon such dates and shall be collected as herein
provided. The general purpose of Regular and Special Assessments is to provide funds to
maintain and improve the Common Areas and related facilities for the benefit of the Owners, and
the same shall be levied for the following specific purposes: (i) to promote the health, safety and
welfare of the residents occupying the Real Estate, (ii) for the improvement, maintenance and
repair of the Common Areas, the improvements, lawn foliage and landscaping within and upon the
Common Areas, Landscape Easements, Drainage, Utility or Sanitary Sewer Easements and the
drainage system, (iii) for the performance of the responsibilities and duties and satisfaction of the
10
obligations of the Association and (iv) for such other purposes as are reasonably necessary or
specifically provided herein. A portion of the Regular Assessment may be set aside or otherwise
allocated in a reserve fund for repair and replacement of any capital improvements which the
Association is required to maintain. The Regular and Special Assessments levied by the
Association shall be uniform for all Lots within the Subdivision.
7.2 R lar As ments. The Board of Directors of the Association shall have the right,
power and authority, without any vote of the members of the Association, to fix from time to time
the Regular Assessment against each Residence Unit at any amount not in excess of the
"Maximum Regular Assessment" as follows:
(i) Until December 31 of the year immediately following the conveyance of the
first Lot to an Owner for residential use, the Maximum Regular Assessment on any Residence
Unit for any calendar year shall not exceed Three Hundred Dollars ($300.00).
(ii) From and afier December 31 oftbe year immediately following the conveyance
of the first Lot to an Owner for residential use, the Maximum Regular Assessment on any
Residence Unit for any calendar year may be increased by not more than five percent (5%) per
year above the Regular Assessment for the previous calendar year without a vote of the members
of the Association.
(iii) From and after December 31 of the year immediately following the
conveyance of the first Lot to an Owner for residential use, the Board of Directors of the
Association may fix the Regular Assessment at an amount in excess of the maximum amount
specified in subparagraph (ii) above only with the approval of a majority of those members of each
class of members of the Association who cast votes in person or by proxy at a meeting of the
members oftbe Association duly called and held for such purpose.
(iv) Each Residence Unit shall be assessed an equal amount for any Regular
Assessment, excepting any proration for ownership during only a portion of the assessment
period.
7.3 Special Assessments. In addition to Regular Assessments, the 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 constructing, reconstructing, repairing or replacing any
capital improvement which the Association is required to maintain or the cost of special
maintenance and repairs or to recover any deficits (whether from operations or any other loss)
which the Association may from time incur, but only with the assent ora majority of the members
of each class of members of the Association who cast votes in person or by proxy at a duly
constituted meeting oftbe members oftbe Association called and held for such purpose.
11
7.4 No Assessment against Developer During the Development Period. Neither the
Developer nor any affiliated entity shall be assessed any portion of any Regular or Special
Assessment during the Development Period.
7.5 Date of Commencement of Regular or Snecial Assessments: Due Dates. The Regular
Assessment or Special Assessment, if any, shall commence as to each Residence Unit on the first
day of the first calendar month following the first conveyance of the related Lot to an Owner,
provided that, in the case of the conveyance by Developer of a Lot to any builder in the
Subdivision not related to Developer, such commencement shall occur on the first day of the sixth
calendar month following the first conveyance oftbe Lot to such 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 annual assessment period. Written notice of the
Regular Assessment, any Special Assessments and such other assessment notices as the Board of
Directors shall deem appropriate shall be sent to each Owner subject thereto. The installment
periods and due dates for all assessments shall be established by the Board of Directors. The
Board of Directors may provide for reasonable interest and late charges on past due installments
of assessments.
7.6 Failure 0fOwner to Pay Assessments.
(i) No Owner may exempt himself from paying Regular Assessments and Special
Assessments due to such Owner's nonuse of the Common Areas 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 when due, the lien for such assessment (as described in section 7.7
below) may be foreclosed by the Board of Directors of the Association for and on behalf of the
Association as a mortgage on real property or as otherwise provided by law. In any action to
foreclose the lien for any assessment, the Owner and any occupant of the Residence Unit shall be
jointly and severally liable for the payment to the Association on the first day of each month of
reasonable rental 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 of the Association to be applied to the
unpaid assessments. Thc Board of Directors of the Association, at its option, may in the
alternative bring suit to recover a money judgment for any unpaid assessment without foreclosing
or waiving the lien securing the same. In any action to recover an assessment, whether by
foreclosure or otherwise, the Board of Directors of the Association, for and on behalf of the
Association, shall be entitled to recover from the Owner oftbe respective Lot costs and 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 section 7.6 or elsewhere in this
Declaration, any sale or transfer of a Residence Unit or Lot to a Mortgagee pursuant to a foreclo-
sure of its mortgage or conveyance in lieu thereof, or a conveyance to any person at a public sale
12
in the manner provided by law with respect to mortgage foreclosures, shall extinguish the lien of
any unpaid assessments which became due prior to such sale, transfer or conveyance; provid~d,
however, that the extinguishment of such lien shall not relieve the prior Owner from personal
liability therefor. No such sale, transfer or conveyance shall relieve the Residence Unit, or the
purchaser thereof, at such foreclosure sale, or the grantee in the event of conveyance in lieu
thereof, from liability for any assessments thereafter becoming due or from the lien therefor.
7.7 Creation of Lien and Personal Obligation. All Regular Assessments and Special As-
sessments, together with interest, costs of collection and attorneys' fees, shall be a continuing lien
upon the Lot against which such assessment is made prior to all other liens except only (i) tax
liens on any Lot in favor of any unit of government or special taxing district and (ii) the lien of any
first mortgage of record. Each such assessment, together with interest, costs of collection and
attorneys' fees, shall also be the personal obligation of the Owner of the Lot at the time such
assessment became due and payable. Where the Owner constitutes more than one person, the
liability of such persons shall be joint and several. The personal obligation for delinquent
assessments (as distinguished from the lien upon the Lot) shall not pass to such Owner's
successors in title unless expressly assumed by them. The Association, upon request of a
proposed Mortgagee or proposed purchaser having a contractual right to purchase a Lot, shall
furnish to such Mortgagee or purchaser a statement setting forth the amount of any unpaid
Regular or Special Assessments or other charges against the Lot. Such statement shall be binding
upon the Association as of the date of such statement.
7.8 Expense Incurred to Clear Drainage, Utility or Sanita _fy Sewer Easement Deemed a
S i I As ment. As provided in the Plat Covenants relating to the Real Estate, the Owner of
any Lot subject to a Drainage, Utility or Sanitary Sewer Easement including any builder, shall be
required to keep the portion of said Drainage, Utility or Sanitary Sewer Easement on his Lot free
from obstructions so that the storm water drainage will not be impeded and will not be changed or
altered without a permit from the applicable local governmental authority and prior written
approval of the Developer and the Association. Also, no structures or improvements, including
without limitation decks, patios, pools, fences, walkways or landscaping of any kind, shall be
erected or maintained upon said easements, and any such structure or improvement so erected
shall, at Developer's or the Association's written request, be promptly removed by the Owner at
the Owner's sole cost and expense. If, within thirty (30) days after the date of such written
request, such Owner shall not have commenced and diligently and continuously effected the
removal of any obstruction of storm water drainage or any prohibited structure 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 or Sanitary Sewer Easement is returned
to its original designed condition. In such event, Developer or the Association shall be entitled to
recover the full cost of such work from the offending Owner and such amount shall be deemed a
special assessment against the Lot owned by such Owner which, if unpaid, shall constitute a lien
against such Lot and may be collected by the Association pursuant to this Article 7 in the same
manner as any Regular Assessment or Special Assessment may be collected.
13
ARTICLE VIII
INSURANCE
$.1 Casualty Insurance. The Association shall purchase and maintain fire and extended
coverage insurance in an amount equal to the full insurable replacement cost of any improvements
owned by the Association. The Association shall also insure any other property, whether real or
personal, owned by the Association, against loss or damage by fire and such other hazards as the
Association may deem desirable. Such insurance policy shall name the Association as the insured.
The insurance policy or policies shall, if practicable, contain provisions that the insurer (i) waives
its fights to subrogation as to any claim against the Association, its Board of Directors, officers,
agents and employees, any committee of the Association or of the Board of Directors and all
Owners and their respective agents and guests and (ii) waives any defense to payment based on
invalidity arising from the acts of the insured. Insurance proceeds shall be used by the
Association for the repair or replacement of the property for which the insurance was carried.
8.2 ~. 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. Such comprehensive public liability insurance
shall cover all of the Common Areas and shall inure to the benefit of the Association, its Board of
Directors, officers, agents and employees, any committee of the Association or of the Board of
Directors, all persons acting or who may come to act as agents or employees of any of the
foregoing with respect to the Real Estate and the Developer.
8.3 Other Insurance. The Association shall also purchase and maintain any other
insurance required by law to be maintained, including but not limited to workers compensation
insurance, and such other insurance as the Board of Directors shall fi.om time to time deem
necessary, 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 Common Expenses.
ARTICLE IX
MAINTENANCE
9.1 Maintenance of Lots and Improvements. Except to the extent such maintenance shall
be the responsibility of the Association under any of the foregoing provisions of this Declaration,
it shall be the duty of the Owner of each Lot, including any builder during the building process, to
keep the grass on the Lot properly cut and keep the Lot, including any Drainage, Utility or
Sanitary Sewer Easements located on the Lot, free of weeds, trash or construction debris and
otherwise neat and attractive in appearance including without limitation, the proper maintenance
14
of the exterior of any structures on such Lot. If the Owner of any Lot fails to do so in a manner
reasonably satisfactory to the Association, the Association shall have the right (but not the
obligation), through its agents, employees and contractors, to enter upon said Lot and clean,
repair, maintain or restore the Lot, as the case may be, and the exterior of the improvements
erected thereon. The cost of any such work shall be and constitute a special assessment against
such Lot and the owner thereof, whether or not a builder, and may be collected and enforced in
the manner provided in this Declaration for the collection and enforcement of assessments in
general. Neither tbe Association nor any of its agents, employees or contractors shall be liable to
the offending Owner for any damage which may result from any maintenance work performed
hereunder.
9.2 Dama_~e to Common Areas. In the event of damage to or destruction of any part of
the Common Areas or any improvements which the Association owns or is required to maintain
hereunder, including without limitation any Subdivision improvement, such as fences or columns
erected by the Developer in right-of-way areas, the Association shall repair or replace the same
from the insurance to the extent of the availability of such insurance proceeds, If such insurance
proceeds are insufficient to cover the costs of repair or replacement of the property damaged or
destroyed, the Association may make a Special Assessment against all Owners to cover the
additional cost of repair or replacement not covered by the insurance proceeds. Notwithstanding
any obligation or duty of the Association hereunder to repair or maintain the Common Areas and
other improvements 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, invitee or other occupant or visitor of such Owner, damage shall be caused to the
Common Areas or any other improvements maintained by the Association pursuant to this
Paragraph 9.2, or if maintenance, repairs or replacements shall be required thereby which would
otherwise be a Common Expense, then the Association shall cause such repairs to be made and
such Owner shall pay for such damage and such maintenance, repairs and replacements, unless
such loss is covered by the Association's insurance with such policy having a waiver of
subrogation clause. If not paid by such Owner upon demand by the Association, the cost of
repairing such damage shall constitute a special assessment against such Owner, whether or not a
builder, and its Lot, to be collected and enforced in the manner provided in this Declaration for
the collection and enforcement of assessments in general.
ARTICLE X
MORTGAGES
10:1 Notice to Mortgaaees. The Association, upon request, shall provide to any
Mortgagee a written certificate or notice speci~ing unpaid assessments and other defaults, if any,
oftbe Owner of any Lot in the performance of the Owner's obligations under this Declaration or
any other applicable documents.
15
10.2 Notice to Association. Any Mortgagee who holds a first mortgage lien on a Lot may
notil~ the Secretary of the Association by certified mail (return receipt requested) oftha existence
of such mortgage and provide the name and address of the Mortgagee. A record of the
Mortgagee and name and address shall be maintained by the Secretary of the Association and any
notice required to be given to the Mortgagee pursuant to the terms of this Declaration, the
By-Laws of the Association or otherwise shall be deemed effectively given if mailed to the
Mortgagee at the address shown in such record in the time provided. Unless notification of a
Mortgage and the name and address of the Mortgagee are furnished to the Secretary as herein
provided, no notice to any Mortgagee 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 the Association, a proxy granted to such Mortgagee in connection with the mortgage,
or otherwise.
10.3 Mort~aoees' Rights Uoon Default by Association. If the Association fails (i) to pay
taxes or the charges that are in default and that have or may become liens against any Common
Areas, or (ii) to pay on a timely basis any premium on hazard insurance policies on Common
Areas or to secure bo~srd insurance coverage for the Common Areas upon lapse of a policy, then
the Mortgagee with respect to any Lot may make the payment on behalf of the Association.
ARTICLE XI
11.1 By the Association. Except as otherwise provided in this Declaration, amendments
to this Declaration shall be proposed and adopted in the following manner:
(i) Notice. Notice of the subject matter of any proposed amendment shall be
included in the notice of the meeting of the members of the Association at which the proposed
amendment is to be considered.
(ii) Resolution. A resolution to adopt a proposed amendment may be proposed by
the Board of Directors or Owners having in the aggregate at least a majority of votes of all
Owners.
(iii) Meeting. The resolution concerning a proposed amendment must be adopted
by the vote required by subparagraph (iv) below at a meeting of the members of the Association
duly called and held in accordance with the provisions of the Association's By-Laws.
(iv) Adoption. Any proposed amendment to this Declaration must be approved by
a vote of not less than ninety percent (90%) in the aggregate of all votes entitled to be cast by all
Owners if the proposed amendment is considered and voted upon on or before twenty (20) years
after the date hereof, and not less than seventy-five percent (75%) of such votes if the proposed
16
amendment is considered and voted on after twenty (20) years from the date hereof.. In any case,
provided, however, that any such amendment shall require the prior written approval of
Developer so long as Developer or any entity related to Developer owns any Lot or Residence
Unit within the Real Estate. In the event any Residence Unit is subject to a first mortgage, the
Mortgagee shall be notified oftbe meeting and the proposed amendment in the same manner as an
Owner provided the Mortgagee has given prior notice of its mortgage interest to the Board of
Directors of the Association in accordance with the provisions oftbe foregoing sub-section 10.2.
As long as there is a Class B membership, the following actions will require the prior approval of
the Federal Housing Administration or the Veterans Administration: annexation of additional
properties, dedication or mortgaging of Common Area, and amendment of this Declaration of
Covenants, Conditions and Restrictions.
(v) Mortgagees' Vote on Speciai Amendments. No amendments to this Declaration
shall be adopted which changes any provision of this Declaration which would be deemed to be of a
material nature by the Federal National Mortgage Association under Section 601.02 of Part V, Chapter
4, of the F~mnie Mae Selline Guide, or any similar provision of any subsequent guidelines published in
lieu of or in substitution for the ~n~, or which would be deemed to require the first
mortgagee's consent under the Freddie Mac Sellers' and Servicers' Guide. Vol. 1, Section 2103(d),
without the written approval of at least sixty-seven percent (67%) of the Mortgagees who have given
prior notice of their mortgage interest to the Board of Directors oftbe Association in accordance with
the provisions of the foregoing section 10.2.
Any Mortgagee which has been duly notified of the nature of any proposed amendment shall be
deemed to have approved the same if the Mortgagee or a representative thereof fails to appear at the
meeting in which such amendment is to be considered (if proper notice of such meeting was timely
given to such Mortgagee) or if the Mortgagee does not send its written objection to the proposed
amendment prior to such meeting. In the event that a proposed amendment is deemed by the Board of
Directors of the Association to be one which is not of a material nature, the Board of Directors shall
notify all Mortgagees whose interests have been made known to the Board of Directors of the nature
of such proposed amendment, and such amendment shall be conclusively deemed not material if no
Mortgagee so notified objects to such proposed amendment within thirty (30) days after the date such
notices are mailed and if such notice advises the Mortgagee of the time limitation contained in this
sentence.
11.2 By the Develo~r. Developer hereby reserves the right, so long as Developer or any
entity related to Developer owns any Lot or Residence Unit within and upon the Real Estate, to make
any technical amendments to this Declaration, without the approval of any other person or entity, for
any purpose reasonably deemed necessary or appropriate by the Developer, including without
limitation: to bring Developer or this Declaration into compliance with the requirement of any statute,
ordinance, regulation or order of any public agency having jurisdiction thereof, to conform with zoning
covenants and conditions; to comply with the requirements of the Federal National Mortgage
Association, the Government National Mortgage Association, the Federal Home Loan Mortgage
Corporation, the Department of Housing and Urban Development, the Veterans Administration or any
17
other govemmentai agency or to induce any of such agencies to make, purchase, sell, insure or
guarantee first mortgages; or to correct clerical or typographical errors in this Declaration or any
amendment or supplement hereto; provided, however, that in no event shall Developer be entitled to
make any amendment which has a material adverse effect on the rights of any Mortgasee, or which
substantially impairs the rights granted by this Declaration to any Owner or substantially increases the
obligations imposed by this Declaration on any Owner.
11.3 Recordinr,. Each amendment to this Declaration need be executed only by Developer
in any case where Developer has the right to amend this Declaration pursuant to Paragraph 11.2
and, otherwise, by the President or Vice President and Secretary of the Association; provided,
however, that any amendment requiring the consent of Developer pursuant to Paragraph 11.1
shall contain Developer's signed consent. Ail amendments shall be recorded in the Office of the
Recorder of Hamilton County, Indiana, and no amendment shall become effective until so
recorded.
ARTICLE XII
MISCELLANEOUS
12.1 ~tl~[[~l~l~ll~. Violation or threatened violation of any of the covenants,
conditions o~ restrictions enumerated in this Declaration or in a Plat of any part of the Real Estate
now or hereafter recorded in the office of the Recorder of Hamilton County, Indiana, shall be
grounds for an action by Developer, the Association, any Owner and all persons or entities
claiming under them, against the person or entity violating or threatening to violate any such
covenants, conditions 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, conditions and restrictions; provided,
however, that neither Developer, any Owner nor the Association shall be liable for damages of
any kind to any person for failing or neglecting for any reason to enforce any such covenants,
conditions or restrictions.
12.2 Delay or Failure to Enforce. No delay or failure on the part of any aggrieved party,
including without limitation the Association and the Developer, to invoke any available remedy
with respect to any violation or threatened violation of any covenants, conditions or restrictions
enumerated in this Declaration or in a Plat of any part of the Real Estate shall constitute a waiver
by that party of, or an estoppel of that party to assert, any right available to it upon the
occurrence, recurrence or continuance of such violation.
12.3 Duration. These covenants, conditions and restrictions and all other provisions of
this Declaration (as the same may be amended from time to time as herein provided) shall mn with
the land comprising the Real Estate and shall be binding on all persons and entities from time to
time having any right, title or interest in the Real Estate or any part thereof, and on all persons
claiming under them, until December 31, 2019, and thereafter shall continue automatically until
18
terminated or modified by vote in the majority of ali Owners at any time thereafter; provided,
however, that no termination of this Declaration shall terminate or otherwise affect any easement
hereby created and reserved unless all persons entitled to the beneficial use of such easement shall
consent thereto.
12.4 Severabilitv. Invalidation of any of the covenants, conditions or restrictions
contained in this Declaration by judgment or couR order shall not in any way affect any of the
other provisions hereof, which shall remain in full force and effect.
12.5 Applicable Law. This Declaration shall be governed by and construed in accordance
with the laws of the State of Indiana.
12.6 Annexation. Additional land adjacent to the Real Estate may be annexed by
Developer to the Real Estate (and from and after such annexation shall be deemed par of the Real
Estate for all purposes of this Declaration) by execution and recordation by Developer in the
Office of the Recorder of Hamilton County, Indiana, of a supplemental declaration, and such
action shall require no approvals or other action of the Owners.
ARTICLE XIII
DEVELOPER'S RIGHTS
13.1 Access Rights. Developer hereby declares, creates and reserves an access license
over and across all of the Real Estate for the use of Developer and its representatives, agents,
designees, contractors and affiliates during the Development Period. Notwithstanding the
foregoing, the area of the access license created by this section 13.1 shall be limited to that part of
the Real Estate which is not in, on, under, over, across or through a building or the 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 rights only to the extent reasonably
necessary and appropriate and such parties shall, to the extent reasonably practicable, repair any
damage or destruction caused by reason of such parties' exercise of this access license.
13.2 Signs. Developer and its designees shall have the right to use signs of any size during
the Development Period and shall not be subject to the Plat Covenants with respect to signs
during the Development Period. The Developer and its designees 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 Sal~ Offices and Models. Notwithstanding anything to the contrary contained in this
Declaration or a Plat of any part of the Real Estate now or hereafter recorded in the office of the
Recorder of Hamilton County, Indiana, Developer, any entity related to Developer and any other
person or entity with the prior written consent of Developer, during the Development Period,
19
shall be entitled to construct, install, erect and maintain such facilities upon any portion of the
Real Estate owned by Developer, the Association or such person or entity as, in the sole opinion
of Developer, may be reasonably required or convenient or incidental to the development of thc
Real Estate or the sale of Lots and the construction or sale of Residence Units thereon. Such
facilities may include, without limitation, storage areas or tanks, parking areas, signs, model
residences, construction offices or trailers and sales offices or trailers.
IN WITNESS WHEREOF, this Declaration has been executed by Developer as of the
date first above written.
Hazel Dell Summit Company, an Indiana
corporation
Christopher R. White
$. Michael Scheetz
STATE OF INDIANA )
) SS:
COUNTY OF MARION )
Before me, a Notary Public, in and for the State of Indiana, personally appeared
Christopher R. White and I. Michael Scheetz, the and the
of Hazel Dell Summit, an Indiana corporation, who acknowledged
the execution of the foregoing Declaration.
WITNESS my hand and Notarial Seal this
day of ,1999.
My Commission Expires:
Notary Public
Printed Name
County of Residence:
20
This instrument was prepared by and return recorded instrument to: Ronald F. Shady, Jr., Vice
President of Davis Holdin8 Corporation, 3755 East 82nd Street, Suite 120, Indianapolis, Indiana
46240, (317) 595-2900.
21
HAZEL DELL SUMMIT
COMMUNITY ASSOCIATION, INC.
PROPOSED BUDGET
Description
Lawn Care~
Mowing (26~ $3001eech)
Fert./Weed Control
Total:
Irrigation:
Maintenance/Repair:
Tree & Shrub Care:
Mulching
Seasonal Flowers
Total:
Bike Path Maintenance
Lake Maintenance:
Algae Control/Dye
Fountain Maintenance
Total:
Lighting/Fountain/Irrigetion:
Common ElectricANater.
Snow Removal (3" or more):
3 Q $4001each:
Recounting/Management Fees:
Postage/$tationa~y:
Legal Fees:
Property Taxes (Common Areas)
TOTAL EXPENBE$:
Annual Budget
$7,800.00
$2,120.00
$9,920.00
$1,200.00
$1,500.00
$1,000.00
$2,500.00
$1,000.00
$1,750.00
$1,000.00
$2,750.00
$5,900.00
$1,200.00
$1,400.00
$6,846.00
$450.00
$850.00
$1~200,00
$35,216.00
11 -Feb-99
163 Unit Basis
12 Month Fiscal
Per Unit/Month
$5.07
$0.61
$1.28
$0.51
$1.41
$3.02
$0.61
$0.72
$3.50
$0.23
$0.43
$0.61
$18.00
95513:94
DECLARATION OF COVENANTS. CONDITIONS AND I~STRICTIONS
m THE TRAILS AT AVIAN GLEN
· ~o THIS DECLARATION Is made th~s ~ day of~ 1995 by Davis Homes,
~ ~ L~, an Indmna hrmted habdity company (the "Developer").
Recitals
1. Developer is the owner of the real estate which is described in Exhibit "A" attached
hereto and made a part hereof(the "Initial Real Estate").
2. Developer intends to subdivide the Initial Real Estate into residential lots.
3. Before subdividing the Initial Real Estate, Developer desires to subject the Initial Real
Estate to certain rights, privileges, covenants, conditions, restrictions, easements, assessmenta,
charges and liens for the purpose of preserving and protecting the value and desirability of the
Initial Real Estate for the benefit of each owner of any part thereof,
4. Developer ~rther desires to create an organization to which shall be delegated and
assigned the powers of malntsining and administering the common areas and certain other areas of
the Real Estate and of edminlsterin8 and enforcing the covenants and restrictions contained in this
Declaration and the subdivision plats of the Real Estate as hereafter recorded in the office of the
Recorder of Hamilton County, Indiana and of collectin8 and disbursing assessments and chergss
as herein provided.
5. Developer may from time to time subject additional real estate located within the tract
adjacent to the Initial Real Estate to the provisions of this Declaration (the Initial Real Estate,
together with any such addition, as and when the same becomes subject to the provisions of this
Declaration as herein provided, is herelnalter referred to as the "Real Estate").
NOW, THEREFORE, Developer hereby declares that the Real Estate is and shall be
acquired, held, transferred, sold, hypothecated, lensed, rented, improved, used and occupied
subject to the following provisions, agreements, covenants, conditions, restrictions, easements,
asse~mentz, charges and liens, each of which shall run with the land and be binding upon, nmi
inure to the benefit of, Developer and any other person or entity hereafter acquiring or having any
right, title or interest in or to the Real Estate or any part thereof,
ARTICLE I
The following terms, when used in th~s Declaration with initial capital letters, shall have
the following respective meanings:
i.i "Association" means the Trails at Avian Glen Community A~suciation, 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, paragraph 6.1, ofthls Declaration.
1.3 "Conunon Areas" menns (i) all. portions of the Rnal Estate shown on any Plat of a part
ofthe Real Estate as n "Common Area" or which are otherwbe not located in Lots and are not
dedicated to the public and (ii) all facilities, structures, buildings, improvements and personal
property owned or leased by the Association from time to time. Common areas may be located
within a public right-of-way.
1.4 "Common Expenses~ means (i) expenses of and 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 expenses for the improvement, maintenance or
repair of the improvements, lawn, foliage and landscaping located on a Drainagn, Utility or Sewer
Easement or on a Landscape Easement to the extent the Association denms it ncenssary to
maintain such easement, (ii) expenses of and in connection with the maintenance, repair or
continuation of the drainage facilities located within and upon the Drainage, Utility or Sewer
Easements, (iii) all judgments, liens and valid claims against the Association, (iv) ail expenses
incurred to procure liability, hazard and any other insurance with respect to the Common Areas
and (v) ail expenses incurred in the administration of the Association.
1.5 'Developer" means Davis Homes, LLC, an Indiana limited liability company, and any
successors or assigns whom it designates in one or more written recorded instruments to have the
rights of Developer hereunder.
1.6 "Development Period" means the period of time commencing with the date of
recordation of this Declaration and ending on the date Developer or its affiliates no longer own
any Lot within 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 ofground so designated on a Plat of any
part of the Real Estate.
1.8 "Lake Easements" means those areas or'ground so designated on a Plat of any part of
the Real Estate.
1.9 "Lot" mcans any parcel of land shown and identified as a lot on a Plat ofeny part of
the Real Estate.
1.10 "Mortgagee* means the holder of a recorded first mortgage lien on any LOt or
Residence Unit.
1.11 "Owner" means the record owner, whether one or more persons or entities, of
fen-simple title to any LOt, including contract sellers, but excluding those having such interest
merely as security for the performance of an obligation unless specifically indicated to the
contrary. The term Owner as used herein shall include Developer so long as Developer shall own
any Lot in the Real Estate.
1.12 "Plat" means a duly approved final plat of any part of the Real Estate as hereafter
recorded in the office of the Recorder of Hamilton County, Indiana.
1.13 "Residence Unit" means any single fiunily home in the subdivision.
1.14 "Regulated Drainage Easements" means those areas of ground so designated on a
Plat of any part of the Real Estate.
1.15 "Utility, Drainage or Sanitary Sewer Easements" means those areas of ground so
designated on a Plat of any pan ofthe Real Estate.
ARTICLE H
APPLICABILITY
All Owners, thcir tenants, guests, inviteas and mortgagaes, and any other person using or
occupying a Lot or any other pan of the Peal Estate shell be subject to and shall observe and
comply with the covenants, conditions, restrictions, terms and provisions set forth in this
Declaration and any rules and regulations adopted by the Association ns herein provided, as the
same may be amended from time to time.
2
The Owner of any Residence Unit (i) by acceptance of a deed conveying title thereto or
the execution ora contrant for the purchase thercof, whether from the Developer or its affiliates
or any builder or any subsequent Owner of the Residence Unit, or (ii) by the act of occupancy of
the Residence Unit, shall conclusively he 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, personal
representatives, successors and assigns, with Developer and the other Owners from time to time,
to keep, observe, comply with and perform the covenants, conditions, restrictions, terms and
provisions ofthls Declaration.
ARTICLE III
3.1 Owners' Easement of Eniovmant of Common Atea~. Developer hereby declares,
creates and grams a non-exc~nsive easement in favor of each Owner for the use a~d enjoyment of
the Common Areas. Such easement shall run with and be appurtenant to each Residence Unit,
subject to the following provisions: t
(i) the right of the Assuciatlon to charge reasonable admission and other fees for
the use of the recreational facilities, if any, situated upon the Common Areas;
(ii) the right of the Association to finn nny Owner or mnke a special assessment
against any K~sldenc~ Unit or Lot in the event a person permitted to use the Common Arens by
the Ownar of the Resldeaen Unit violates any roles or rcgulationa of the Aesodatlon es long es
such roles and rngulatioas are applied on a rensu~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 nil or any pert of the
Common Areas or to grant easements to any public agency, anthodty or utility for such purposes
and subject to such conditions as may be set forth in the instmmant of dedicetion or transfer,
(v) the right of the Association to enforce collection of any fines or regular or
special esscssmants through the imposition of a lien pursuant to paragraph 7.7;
(vi) the rights of Developer as provided in this Declaration or in any Plat of any
part ofthe Real Estate;
(vii) the terms and provisions of this Declaration;
(viii) the right, of the Association to convoy and transfer without consideration the
Common Ama shown es "BI,och B.C." between Lots 258 and 259 to the owner of the abutting
property for use by such owner as a private permanent driveway access between such owner's
existing farmhouse and Coopers Hawk Drive.
(ix) the easements reserved elsewhere in this Declaration nnd in any Plat of any
part of thc Real Estate; and
(x) the right of the Association to limit the use of Common Areas in a reasonable
nondiscriminatory manner for the common Bond.
3.2 Permissive Use. Any Owner may permit his or her family memSers, 8uests, tenants or
contrant purchasers who reside in tho Resldencc Unit to use his or her right of uso and enjoyment
of the Common Areas. Such permissive usc shall he subject to tho By-Laws of thc Association
and any reasonable nondiscriminatory rules and regulations promulgated by the Association from
time to time.
3.3 Conveyance of Common Areas. Developer may at any time and from time to time
convey all ofits right, title and interest in and to any of the Common Areas to the Association by
quitclaim deed, and such Common Areas so conveyed shall then be the property of the
Association.
ARTICLE IV
USE RESTRICTIONS
4.1 Lakes. Them shall be no swimming, skating, boating or fishing in or on any lake,
pond, creek or stream on the Reel Estate. The Association may promulgate rules and regulations
with respect to the permitted uses, if any, of the lakes or other bodies of water on the Real
Estate.
4.2 Initial Sale of Units. All initial sales of Residence Units by the Developer or any
builder or any affiliatn of Developer or any builder shall be to owanr-ocnupants; provided,
however, this provision shall not apply to a mortllagee or its successor who acquires the
development or a portion thereof or any Residence Unit through foreclosure or sale in lleu
thereof. If any owner-occupant desires to lease his unit, such rental shall be pursuant to a written
lease with a minimum term of one year and such lease shall expressly provide that the leeaen shall
be subject to all roles and regulations of the Association.
4.3 Use of Common Areas. The Common Areas shall be used only for recreational
4.4 Lot Access. All Lots shall be accessed fi.om the interior streets oftbe Subdivision.
No direct access is permitted to any Lot via East 131 st Street or Cherty Tree Avenue.
4.5 Other U~ Restrictions Contained in Plat Covenants and Restrictions. The Plat
Covenants and Restrictions relating to the Real Estate contain additional restrictions on the use of
the Lots in the subdivision, including without limitation prohibitions against commercial use,
detached accessory 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 structures, vehicle parking, signs, mailboxes, garbaga and re,se
disposal, storage tanks, water supply and suwaga systems, ditches and swales, driveways, antenrm
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
incorporated by reference as theu8h ~lly set forth herein.
ARTICLE V
ASSOCIATION
5.1 btiemhershiu. Each Owner, automatically upon becoming an Owner. shaft be and
become a member of the Association and shall remain a member of the Association so long as he
or she owns the Lot.
5.2 Classes of Membershio and Vote. The Association shall have two (2) classes of
membership, as follows:
(i) Class A Members. Class A members shall he all Owners other than Developer
(unless Class B membership has been converted to Class A memb~ship as provided in the
following subparagraph (ii), in which case Developer shall then be a Class A member). Each
Class A member shall be entitled to one (I) vote.
(ii) Class B Member. The Class B member shall be tho Developer. The Class B
member shall be entitled to three (3) votes t'or each Lot owned by Developer. The Class B
membership shall cease and terminate end be converted to Class A membership upon the
"Applicable Date" (as defined in paragraph 5.3).
5.3 Aoolicable 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 I r Es' n r. Where more than one person or entity constitutes the
Owner cfa Lot, all such persons or entities shall be members of the Association, but the single
vote in respect of such Lot shall be exercised as the persons or entities holding an interest in such
Lot determine among themselves. In no event shall more than one person exercise a Lot's vote
under paragraph 5.2. No Lot's vote shall be split.
5.5 ~. The members of the Association shall elect a Board of Directors
~f the Associati~n as prescrihed by the Ass~ciati~n~s Artic~es ~f ~nc~rp~rati~n and By-Laws. The
Board of Directors of the Association shall manage the affairs of thc Association.
5.6 Professional Manalrcment. No contract or agreement for professional n'mnen, ement of
the Association, nor any contract between Developer and the Association, shall be for n term in
excess of'three (3) years. Any such agreement or contract shall provide for termination by either
party with or without ceuse, without any termination penalty, on written notice of ninety (90)
days or less.
5.7 Resuonsibilities of the Association. The responsibilities of the Association include, but
shall not be limited to:
(i) Maintenance of the Common Areas including any and all improvements thereon
in good repair as the Association deems necessary or appropriate.
(ii) Installation and replacement of any and all improvements, signs, lawn, foliage
and landscaping in and upon the Common Areas or Lake Easements or Landscape Easements as
the Association deems necessary or appropriate.
(iii) Maintenance, repair and replacement of any private street signs.
(iv) Replacement of the drainage system in end upon the Common Areas as the
Association deems necessary or appropriate and the maintenance of any drainage system installed
in or upon the Common Ai'ess 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 and Drainage Easement on his Lot free from
obstructions so that the storm water dreinage will be unimpeded.
(v) Maintenance of lake water so as not to create stngeant or polluted waters
affecting the health end welfare ct' the community through recirculation of accumulated water or
chemical treatment.
(vi) Procuring and maintaining for the benefit of the Association, its oflicers and
Board of Dircctors end the Owners, the insurance coverag, e required under this Declaration and
such other insurance as thc Board ct'Directors deems necessary or advisable.
(vii) Payment of taxes, if any, assossed against and payable with respect to the
Common Areas.
(viii) Assessment and collection from thc Owners of the Common Expenses.
(ix) Performing or contracting for such services as management, enow removal,
Common Area nmintenance, trash removal or other services as the Association deems neeessmy
or advisable.
(x) Enforcing the tries and regulations et'the Association and the requirements of
this Declaration and any applicable zoning covenants, in each case, as the Association deems
necessary or advisable.
5.8 Powers of the Association. The Association may adopt, amend, or rescind, reasonable
tries and regulations (not inconsistent with the provisions of this Declaration) governing the use
and enjoyment of the Common Areas and the management and administration ofthe Association,
as the Association deems eecessary or advisable. The tries and regulations promulgated by the
Association may provide for reasonable interest and late charges on past due installments of say
regular or special assessments or other charges against any Residence Unit or Lot. The
Association shall fureish or make copies available of its rules and regulations to tbe Owners prior
to the time when the tries and regulations become effective.
5.9 Comeeasation. No director or officer of the Association shall receive compensation
for his or her sen'ices as such director or officer except to the extent expressly authorized by a
majority vote of the Owners present at a duly constituted meeting of the Association members.
5.10 ~N0n-Liabilitv of Directors nnd Officers. The directors and officers oftbe ~iation
shall not be liable to the Owners or any other persons for any error or mistake of judgment in
carrying out their duties and responsibilities es directors or officers of fha Association, except for
their own individual willfi~l misconduct or 8ross negligence. It is intended that the directors and
officers of the Association shall have no personal liability with p,'spect to any contract made by
them on bchalfofthe Association except in their capacity as Owners.
$.11 lndeamitv of Directors and Officers. The Association shall indemnify, bold harmless
and defend any person, his or her heirs, assigns and legal representatives (collectively, the
'ledemnitee') made or threatened to be mede a party to any action, suit or proceeding by reason
oftbe fect that he or she is or wes a director or officer of the Aesociation, against all costs and
expenses, including attorneys fees, actually and reasonably incurred by the Iedemnitee in
connection with the defense of such action, suit or proceeding, or in connection with any appeal
thereof, except in relation to matters as to which it shall be ndjudged in such action, suit or
proceeding that such Indemnitee is guilty of gross negligence or willful miseondunt in the
performance of his or her duties. The Association shall also reimburse any such lndemnitee for
the reasonable costs of settlement of or for any judgment rendered in any action, suit or
proceeding, unless it shall be adjudged in such action, suit or proceeding that such lndemnitee was
guilty of gross negligence or willful misconduct. In making such findings and notwithstanding the
adjudication in any action, suit or proceediag against an Indemnitee, no director or officer shall be
considered or deemed to be guilty of or liable for gross negligence or willful misconduct in the
performance of his or her duties where, acting in good faith, such director of officer relied on the
books and records of the Association or statements or advice made by or prepared by any
managing agent of thc Association or any director or officer of the Association, or any
accountant, attorney or other person or firm employed or retained by the Association to render
advice or service, unless such director or officer had actual knowledge of the falsity or
incorrectness therent~ nor shall a director be deemed guilty of gross negligence or willful
misconduct by virtue oftha fact that he or she failed or neglected to attend a meeting or meetings
ortho Board of Directors ortho Association. The costs and expenses incurred by any Indemnltee
in defending any action, suit or proceeding may be paid by the Association in advance of the final
disposition of such action, suit or proceeding upon receipt of an undertaking by or on behalf of
the Indcmnitee to repay the amount paid by the Association if it shall ultimately be determined
that the lndemniteo is not entitled to indemnification or reimbursement as provided in this
paragraph 5. I 1.
5.12 Bond. The Board of Directors of the Association may provide surety bonds and may
require the managing agent oftha Association (if any), tho treasurer of the Asanc'mtlon and such
other officers as the Board of Directors deems necessary, to provide surety bonds, indemnifying
6
the Association against lareeny, theft, emhczzlcment, forgery, misappropriation, wrongful
abstraction, willful misapplication and other acts of theft, fraud or dishonesty in such sums and
with such sureties as may bo approved by the Board of Directors, and any such bond may
specifically include protection for any insurance proceeds received for any reason by the Board of
Directors. The expense of any such bonds shall be a Common Expense.
ARTICLE VI
ARCHITECTURAL 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-
ment 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 nt any time
with or without cause. After the cod of the Development Period, the Architectural Review
Committee shall be a standing committee of the Association, consisting of three (3) persons
appointed, from time to time, by thc 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 thc Architectural Review Committee at any time upon a majority
vote of the members of the Board of Directurs.
· 6.2 purposes and Powers of Architectural Review Committee. The Architectural Review
Committee shall review and approve the design, appearance and location of all residences,
buildings, structures or any other improvements placed by any person, including any builder, on
any Lot within the community, and the installation and 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 deslrnhility of the Real Estate and to preserve the harmonious relationship
among structures and the natural vegetation and topography.
ti) In (~coeraL No residence, building, stmcture~ antenna, walkway, fcoce, deck,
pool, tennis court, wall, patio or other improvement of eny type or kind shall be erected,
constructed, placed or altered on any Lot and no chenge shall bo 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 alter
written application has been made to the Architectural Review Committee by thc Owner of the
Lot requesting authorization from the Architectural 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 improvemcot, shall be
accompanied by two (2) complete sets of plans and specillcetioas for any such pro~osed
construction or improvement. Such plans shall include plot plans showing the location of all im-
provemcets 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
specil'tcations 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
Architectural Review Committee may reasonably require. Unless otherwise permitted by the
Architectural Review Committee, plot plans shall bo prepared by either a registered land surveyor,
engineer or architect. Plot plans submitted for thc Improvement Location Permit shall bear the
stamp or signature of the Architectural Review Committee acknowledging thc approval thereof.
(ii) Power of Disaooroval. The Architectural Review Committee may refuse to
approve any application made to it as required under parasraph 6.2 0) 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 of any part of the Real Estate;
7
Co) The desigu or color scheme of a Requested Change is not in harmony
with the general surroundings of the Lot or with the adjacent buildings or
structures; or
(c) The Requested Change, or any part thereof, in the opinion of the
Architectural Review Committee, would not preserve or enhance the value and
desirability of the Real Estato or would othetwlsu be contrary to the interests,
welfare or rights of the Developer or any other Owner.
(iii) Rules and Reeulations. The Architectural Review Committee, from time to
time, may promulgate, amend or modi~' additional roles and regulations or building policies or
procedures as it may deem necessary or desirable to guide Owners as to the requirements of the
Architectural Review Committee for the submission and approval of items to it. Such rules and
regulations or building policies or procedures may set forth additional reqnircments to those set
forth in this Declaration or a Plat of any part of the Real Estate, as long as the same are not
inconsistent with this Declaration or such Plat(s).
6.3 Duties 0fArchitectural Review Committee. Iftbe Architectural Review Committee
does not approve a Requested Change within forty-five (45) days after all required information
on the Requested Change shall have been submitted to it, then such Requested Change shall be
dccmcd denied. One copy of submitted material shall be retained by the Architectural Review
Committee for its permanent files.
6.4 Liability of the Architectural Review Committee. Neither the Architectural Review
Committee, the Association, thc Developer nor any agent or member of any of the forngoing.
shall he responsible in any way for any defects in any plans, specifications or other materials
submitted to it, nor for any defects in any work done according thereto or for any decision made
by it unless made in bad faith or by willful misconduct.
6.5 Inspection. Thc Architectural Review Committee or its representative may, but shall
not be required to, inspect work being performed to assure compliance with this Declaration and
the materials submitted to it pursuant to this Article VI and may require any work not consistent
with the approved Requested Change, or not approved, to be stopped and removed.
ARTICLE VII
ASSESSMENTS
7.1 Purpose of Assassmcnts. Thc purpose of Regular and Special Assessments is to
provide funds to maintain and improve the Common Areas and related fecilitiea for the benefit of
the Owners, and the same shall be levied for the following purposes: (i) to promote the health,
safety and welfare of the residents occupying the Real Estate, (ii) for the improvement,
maintenance and repair of the Common Areas, the improvements, lawn foliage and landscaping
within and upon the Common Areas, Landscape Easements, Drainage, Utility or Sanitavj Sewer
Easements, Regulated Drainage Easements or Lake Easements and the drainage system, (iii) for
the performance of the responsibilities and duties and satisfaction of the obligations of the
Association and (iv) for such other purposes as are reasonably necessmy or specifically provided
herein. A portion of the Regular Assessment may be set aside or otherwise allocated in a reserve
fund for thc purpose of providing repair and replacement of any capital improvements which the
Association is required to maintain. The Regular and gpeeial Assessments levied by the
A~iatlon shall be uniform for all Lots and Re~deece Units within the Subdivision.
7.2 ~. Thc Board of Directors of tho As~iation shall have the right,
power and authority, without any vote of the members of the Association, to fix from time to time
the Regular Assessment against each Residence Unit at any amount not in excess of the Maximum
Regular Asse~meet as follows:
0) Until December 3 I, 1995, the Maximum Regular Assessment on any Residence
Unit for any calendar year aball not exceed Four Hundred, Eighty Dollars ($480.00).
(ii) From and after December 31, 1995, the Maximum Regular Assessment on any
Residence Unit ~,r any calendar year may be laerensed by not more than gixty Dollars ($60.00)
per year above the Regular Assessment 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 Assesamunt at an amount in excess of the maximum amount specified in
subparagraph (ii) above only with the approval of a majority of those membera of each class of
members of the Association who cast votes in person or by proxy at a meeting of the members of
the Association duly called and held for such purpose,
7.3 Sveclal As~ssments. In addition to Regular Assessments, the Board of Direetors of
the Association may make Spacial Assessments against each Residence Unit, for the purpose of
defraying, in whole or in part, the cost of constructing, reconstructing, repairing or replacing any
capital improvement which the Association is required to maintain or the cost of special
maintenance and repairs or to recover any deficits (whether from operations or any other loss)
which the Association may from time incur, bet only with the assent ora majority oflhe members
of each class of members of the Association who cast votes in person or by proxy at a duly
constituted meeting of the members of the Association called for such purpose,
7.4 No Assessment aaninst Develooer Durlne the Develonme~0t Period, Neither the
Developer nor any affiliated entity shall be assessed any portion of any Regular or Special
Assessment during the Development Period.
7.5 Date of Commencement of Renular or Soec'ml Assessments: Due Dates. The Regular
Assessment or Special AssessmenL if any, shall commence as to each Residence Unit on the first
day of the first calendar month following the first conveyance of the related Lot to an Owner,
provided that in the case of the conveyance by Developer to any builder, such commencement
shall occur on the first day of the sixth calendar month following the first conveyance 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 annual assessment period. Written notice of the
Regular Assessment, any Special Assessments and such other essasamant notices as the Board of
Directors shall deem appropriate shall be sent to each Owner subject thereto. The installment
periods and duc dates for ail assessments shall be established by the Board of Directors. The
Board of Directora may provide for reasonable interest and late charges on past due installments
of asseasmeats.
7.6 Failure of Owner to Pay Assessments.
(i) No Owner may exempt himself from paying Regular Assessments and Special
Assessments due to such Owner's nonuse of the Common Areas 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 applicable) when due, the
lien for such assessment (as described in paragraph 7.7 below) may be foreclosed by the Board of
Directors of thc Association for and on behalf of the Association as n mortgage on real property
or as otherwise provided by law. In any action to foreclose the lien for any assessment, thc
Owner and any occupant oftbe Residence Unit shall be jointly and severally liable for the payment
to the Association of reasonable rental for such Residence Unit, and the Board of Directors shall
be entitled to the appointment of n receiver for the purpose of preserving the Residence Unit or
Lot, and to collect the rentals and other profits therefrom for the benefit of the Association to be
applied to the unpaid assessments. The Board of Directors of the Association, at its option, may
in the alternative bring suit to recover a money judgment for any unpaid assessment without
foreclosing or waiving the lien securing the same. In any action to recover an assessment,
whether by foreclosure or otherwise, the Board of Direetors of the Association, for and on behalf
of the Association, shall be entitled to recover from the Owner of the respective Residence Unit
or Lot, cesta and expenses of such action incurred (including but not limited to attorneys fees)
and interest fi.om the date such assessments were due until paid.
(ii) Notwithstanding anything centained in this paragraph 7.6 or elsewhere in this
Declaration, any sale or transfer of a Residence Unit or Lot to a Mortgagee pursuant to a foreclo-
sure of its monguga or conveyance in lieu thereof, or a conveyance to any person at a public sale
in the manner provided by law with respect to mortgage foreclosures, shall extinguish the lien of
any unpaid assessments (or periodic installments, if applicable) which became due prior to such
sale, transfer or conveyance; vrovided, however, that the extinguishment of such lien shall not
relieve the prior Owner from personal liability therefor. No such sale, transfer or cenveyance shall
relieve the Residence Unit, or the purchaser thereof, at such foreclosure sale, or the lP'anten in the
event of cenveyance in lieu thereof, from liability for any assessments (or perlodle installments of
such assessments, if applicable) thereafter becoming dun or from the lien therel'or.
7.7 Creation of Lien and Personal Obli~zation. Each Owner ufa Residence Unit or Lot by
acceptance for itself and related entities ufa deed therefor, wbetber or not it shall be so expressed
in such deed, is deemed to cevenant and agree to pay to the Association for his obligation for (i)
regular assessments for Common Expenses ("Regular Assessmeuta") and (ii) special assessments
for capital improvements and operating deficits and for special maintenance and repairs ("Special
Assessments"). Such assessments shall be established, shall cemmence upon such dates and shall
be collected as herein provided. All such assessments, together with interest, costs of collection
and attorneys' fees, shall be a contlnuln8 lien upon the Residence Unit or Lot against which
such assessment is made prior to all other liens except only (i) tax liens on any Residence Unit or
Lot in favor of any unit of government or special taxing district and (ii) thc lien of any first
mortgage of recerd. Each such assessment, together with interest, costs of collection and
attorneys' fees, shall also be the personal obligation of the Owner of the Residence Unit at the
time such assessment became due and payable. Where the Owner censtltutes more than one
person, the liability of such persons shall be joint and several. Thc personal obligation for
delinquent assessments (as distingaished from the lien upon the Residence Unit) shall not pass to
such Owner's successors in title unless expressly assumed by them. The Association, upon
request ora proposed Mortga8ee or proposed purchaser having a contractual right to purchase a
Residence Unit, shall furnish to such Mortgagee or purchaser a statement settin8 forth the amount
of any unpaid Regular or Special Assessments or other charges against the Residence Unit or Lot.
Such statement shall be binding upon the Association as ortho date of such statement.
7,8 ~Expense Incerrcd to Clear Drainene. Utility or Scwcr Eaeemeut Deemed a Snccial
Assessment. As provided in the Plat Covenants relating to the Real Estate, the Owner of any Lot
subject to a Drainage, Utility or Ssoitary Sewer Easement, or Regulated Drainage Easement
including any builder, shall bo required to keep the portion of said Drainage, Utility or Sanitary
Suwcr Easement or Regulated Drainage Easement on his Lot free from obstructions so that the
storm water drainage will not be impeded and will not be changed or altered without a permit
from thc applicable local governmental authority and prior written approval of the Developer and
the Association. Also, no structures or improvements, including without limitation decks, patios,
pools, fences, walkweys or landscaping of any kind, shall be erected or maintained upon said
easements, and any such structure or improvement so erected shall, at Developer's or the
Assu~iation's written request, be removed by the Owner at the Owners sole cost and expense, if,
within thirty (30) days after the date of such written requesL such Owner shall not have
cemmenced and diligently and centinoously effected the removal of any obstrnction of storm
water drainage or any prohibited structure or improvement, Developer or the Association may
enter upon thc Lot and cause such obstruction, structure or improvement to be removed so that
the Drainagu Utility and Sanitary Sewer Easement or Regulated Drainage Easement is returned to
its original designed condition. In such event, Developer or the Association shall be entitled to
recover the full cost of such work from the offending Owner and such amount shall be deemed a
Special Assessment against the Lot owned by such Owner which, if unpaid, shall censtitute a Ilea
against such Lot and may be colleuted by the Association pursuant to this Article 7 in the same
manner as any otber Regular Assessment or Special Assessment may be collected.
10
ARTICLE VIII
INSURANCE
8.1 Casualty Insurance. The Association shall purchase and maintain fire and extended
coverage insurance in an amount equal to the full insurable replacement cost of any improvements
owned by the Association. If the Association can obtain such coverage For a reasonable 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 llre and such other
hazards as the Association may deem desirable. Such insurance policy shall name the Association
~s tho insured. The insurance policy or policies shall, if practicable, contain provisions that the
insurer 0) waives its rights to subrogation as to any claim against the Association, its Board of
Directors, otF~cers, agenLs and employees, any committee of the Association or of the Board of
Directors and all Owners and their respective agents and guests and (ii) waives any defense to
payment based on invalidity arising From the acts of the insured. Insurance proceeds shall be
used by the Association for the repair or replacement of the property for which the insurance was
8.2 Liability Insurance. The Association shall also purchase and maint~n a master
comprehensive public liability insurance policy in such amount or amounts as thc Board of
Directors shall deem appropriate from time to time. but in any event with a minimum combined
limit of One Million Dollars ($1,000,000) per occurrence. Such comprehensive public liability
insurance shall cover ail oftbe Common Areas and shall inure to the benefit of the Association, its
Board of Directors, officers, agents and employees, any committee of the Association or of the
Board of Dircctors, all persons acting or who may come to act as agents or employees of any of
the foregoing with respect to the Real Estate and the Developer.
8.3 Other Insurance. The Association shall also purchase and rnsintain any other
insurance required by law to be maintained, including but not limited to workers compensation
and occupational disease insurance, and such other insurance as the Board of Di~ctors shall from
time to time deem necessaoy, advisable or appropriate, including but not limited to of~cers' and
directors' liability insurance.
8.4 Miscellaneous. The premiums for the insurance described above shall be paid by the
Association as part ofthe Common Expenses.
ARTICLE IX
9.1 MaintenanceofLotsandlmprovements. F. Lxcept to the extent such maintanance shell
be the responsibility of the Association under any of the foregoing provisions of this Declaration,
it shall he 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
Sanitary Sewer Easements or Regulated Drainage Easements located on the Lot, free of wends,
trash or construction debris and othenvise neat and attractive in appearance, including, without
limitation, the proper maintenance ofthe exterior of any structures on such Lot. If the Owner of
any Lot fails to do so in a manner reasonably satisfactory to the Association, the Association 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 case may be, nnd the
exterior ofthe improvements erected thereon. The cost of any such work shall be and constitute
a Special Assessment against such Lot and the owner thereof, whether or not n builder, and may
be collected and enforced in the manner provided in this Declaration for the collection and
enforcement of assessments in general. Neither the Association nor any of its agents, employees
or contractors shall be liable for any damage which may result from any maintenance work per-
formed hereunder.
9.2 Damane to Common Areas. In the event of damage to or destruction of any part of
the Common Areas or any improvements which the Association is required to maintain hereunder,
I1
the Association shall repair or replace the same lmm the insurance to the extent et`the availability
of such insurance proceeds. It' such insurance proceeds are insufficient to cover the costs of
repair or replacement et` the property damaged or destroyed, the Association may make a Special
Assessment against all Owners to cover the additional cost of repair or replacement not covered
by the insurance proceeds. Notwithstanding any obligation or duty of tho Association hereunder
to repair or maintain the Common Arcas if, duc to thc willfi~l, intentional or nagligent acts or
omissions of any Owner (including any builder) or of a member of his family or of a guest,
subcontractor, employee, tenant, invhee or other occupant or visitor of such Owner, damage shall
be caused to the Common Areas, or if maintenance, repairs or replacements shall be required
thereby which would otherwise bo a Common Expense, then thc Assnoiatlon shall cause such
repairs to be made and such Owner shall pay t'or such damage and such maintenance, repairs and
replacements, unless such loss ia covered by the Association's insurance with such policy having a
waiver of subrogation clause. If' not paid by such Owner upon demand by the Association, the
cost of repairing such damage shall be added to and constitute a Special Assessment against such
Owner, whether or not a builder, and its Residence Unit and Lot, to be collected and enforced in
the manner provided in this Declaration f'or the collection and enforcement of' assessments in
general.
ARTICLE X
MORTGAGES
10.1 Notice to Mortgauecs. The Association, upon request, shall provide to any
Mortgagee a written certificate or notice specifying unpaid assessments and other defaults, if any,
oftbo Owner ora Residence Unit or Lot in the performance oftbo 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 Secretav/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 bo maintained by the Secretary of the Association and any notice required to be
given to the Mortgagee pursuant to the terms of this Declaration, the By-Laws oftha Association
or otherwise shall be deemed effectively given if mailed to the Mortgagee at the address shown in
such ~'cord in the time provided. Unless notification ot'a Mortgage and the name and address of
the Mortgagee are furnished to the Secretary, as herein provided, no notice to any Mortgagee as
may bo otherwise required by this Declaration, the By-Laws of the Association or otherwise shall
bo required, and no Mortgagee shall bo entitled to vote on any matter to which it otherwise may
be entitled by virtue of this Declaration, the By-Laws of the Association, a proxy granted to such
Mortgagee in connection with the mortgage, or otherwise.
10.3 Mortanuces' Ri~hts UPon Default by Association. Ifthe Aasociation fails (i) to pay
taxes or the charges that are in default and that have or may become charges agaiest 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 thc Common Areas upon lapse ora policy, then
the Mortgagee on any Lot or Residence Unit may make the payment on bohalfoftbo Association.
ARTICLE XI
i1.1 By the Association. Except as otherwise provided in this Declaration, amendments
to this Declaration shall be proposed and adopted in the following manner:
(i) Notice. Notice of the subject matter of any proposed amendment shall be
included in the notice of the meeting of the members of the Association at which the proposed
amendment is to be considered.
12
(ii) Resolution. A resolution to adopt a proposed amendment may be proposed by
the Board of Directors or Owners having in the aggregate at least a majority of votes of all
Owners,
(iii) Meeting. The resolution concerning a proposed amendment must be adopted
by the vote required by par'alp'apb 1 I. 1 (iv) at a meeting of tho members of the Association duly
called and held in accordance with the provisions of the By-Laws.
(iv) AdontJon. Any proposed amendment to this Declaration must be approved by
a vote of not less than sixty-saran percent (67%) in the aggregate of all Owners who cast votes in
parson or by proxy al a meeting of the members duly called and held for such purpose; orovided.
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 tho event any Residence Unit is subject to a first mortgage, the Mortgagee shall be
notified of the meeting and the proposed amendment in the same manner as an Owner if the
Mortgagee has given prior notice of its mortgage interest to the Secretary of the Association in
accordance with the provisions of the foregoing paragraph 10.2.
11.2 Bv the Develcoar. Developer hereby reserves the right, so long as Developer or any
entity affiliated with Developer owns any Lot or Residence Unit within and upon the Real Estate,
to make any amendments to this Declaration, without the approval of any other person or entity,
for any purpose reasonably deemed neceesary or appropriate by the Developer, including without
limitation: to bring Developer or this Declaration into compliance with the requirement of any
statute, ordinance, regulation or order of any public agency having jurisdiction thereot~ to
conform with zoning covenants and conditions; to comply with any requirements of the Federal
National Mortgage Association, the Government National Mortgage Association, the Federal
Home Loan Mortgage Corporation, the Department of Housing and Urban Development, the
Veterans Administration or any other governmental agency or to induce any of such agencies to
make, porchase, sell, insure or 8uaranten first mortgages; or to correct clerical or typographical
errors in this Declaration or any amendment or supplement hereto; nrovided that in no event shall
Developer be entitled to make any amendment which has a material adverse effect on the rights of
any Mortgagee, or which substantially impairs the rights granted by this Declaration to any Owner
or substantially increases the obligations imposed by this Declaration on any Owner.
I 1.3 Recordinu. 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 con,eat
or approval, and otherwise by the President or Vice Pres'ndent and Secretary of the Association;
provided that any amendment requiring the consent of Developer shall contain Developers signed
consent. All amendments shall he recorded in the office of the Recorder of Hamilton County,
Indiana, end no amendment shall hecome effective until so recorded.
ARTICLE XII
MISCELLANEOUS
12.1 Ri~. Violation or threatened violation of any of the covenants,
conditions or restrictions enumerated in this Declaration or in a Pint of any part of the Real Estate
now or hereafter recorded in the office of the 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 such covenants, conditions or restrictions. Aveilable 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, dederatory relief and the recove~ of costs and attorneys
fees reasonably incurred by any party successfully enforcing such covenants and restrictions;
orovided, however, that neither Developer, 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 restrict'~ons.
13
12.2 Delav or Failure to Enforce. No delay or failure on the part of any aggrieved party,
including without limitation the Developer, to invoke any available remedy with respect to any
violation or threatened violation of any covenants, conditions or restrictions enumerated in this
Declaration or in a Plat of any part of the Real Estate shall be held to be a waiver by that party (or
an estoppel of that party to assert) of any right available to it upon the occurrence, recurrence or
continuance of such violation or violations.
12,3 Duration, These covenants, conditions and ~strictions and ail other provisions of
this Declaration (ns the same may be emended from time to time as herein provided) shall mn with
the land and shall be binding on ail persons and entities from time to time having any right, title or
interest in the Real Estate or any part thereof, and on all persons claiming under them: until
December 31, 2015, and thereafter shall continue automatically until terminated or modified by
vote in the majority of all Owners at any time thereaRer; provided, however, that no termination
of this Declaration shall affect any easement hereby created and reserved unless all persons
entitled to the beneficial use of'such casement shall consent thereto.
12.4 Severabilitv. 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 underlined titles preceding the various paragraphs and subparagraphs of
this Declaration ere for the convenience of reference only, nnd none of them shall be used ns an
aid to the construction of any provisions ofthis Declaration. Wherever and whenever applicable,
the singular form of any word shall be taken to mean or apply to the plural, and the masculine
form shall be taken to mean or apply to the ~minlne or to the neuter.
12.6 Ap0licable Law. This Declaration shall be governed by the laws of the State of
Indiana.
12.7 Anneaatioq. Additional land adjacent to the Initial Real Estate may be annexed by
Developer to the Initial Real Estate (and from and aRer such annexation shall be deemed p~ut of
the Real Estate for all purposes of thix Declaration) by execution and recordation in the office of
the Recorder of Hamilton County, Indiana, of a supplemental declaration by Developer; and such
action shall require no approvals or action of the Owners.
Xlll
DEVELOPER'S RXGHTS
13.1 Access Riahts. Developer hereby declares, creates and reserves an access license
over and across all of the Real Estate (subject to the limitations hereieafler provided in this
paragraph 13.1) for the use of' Developer and its representatives, agents, designees, Contractors
and affiliates during the Development Period. Notwithstanding 'the foregoing, the area of the
access license ereated by this paragraph 13.1 shall be limited to that part of the Real Estate which
is not in, on, under, over, across or through a building or the 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 fights only to the extent reasonably necessary and
appropriate.
13.2 Sinus. Developer shall have the right to use signs of any size during the
Development Period end shall not be subject to the Plat Covenants with respect to signs during
the Development Perind. 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 Saiea Offices and Models: Notwithstanding anything to the contrary contained in
this Declaration or a Plat of any part of the Real Estate now or bercefler 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 be entitled to construct, install, erect and maintain such facilities upon any portion of
the Real Estate owned by Developer, the Association or such person or entity as, in the sole
opinion of Developer, may be reasonably required or convenient or incidental to the development
of the Real Estate or the sale of Lots and the construction or sale of reaidences thereon. Such
facilities may include, without limitation, storage areas or tanks, parkinS areas, signs, model
residences, construction offices or trailers and sales offices or trailers.
IN WITNESS ~OF, this Declaration has been executed by Developer as of the
date first nbeve written.
Davis Home~LLC
By: Davis Holding Corporation,
Managing Member
C. Richard Davis
Vice President
' STATE OF INDIANA )
) SS:
COUNTY OF MARION )
Before me, a Notary Public, in and for the State of Indiana, persanaily appeared C.
Richard Davis, Vice President of Davis Holding Corporation, an Indiana corporation, who
acknowledged the execution of the foregoing Deciarafion of Covenants, Conditions and
Restrictions of'fhe Trails at Avian Glen.
WITNESS my hand and Notarial Seal this ~ day of .~,,~IW,~, 1995.
NoiaryPublic ''~ [ [ ---- ~ ~ .~
· . I*1 SEAL I*1
Printed 'J ~
My Commission Expires:
County of Residence: ~-,-.,.,.i ~4a..~
'Ibis 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.
Par~ oi' tho No~llKosl Qu,ricr o£,Scc~ion 28 oi' Towp. ship iS No~th. R~tn~o 4 ~sl, Ioc~l~d in ~
Township, Il. milton ~o~nl)', Indimm, dc~cfl'lx:d Gs Follows:
Commencing et the northwest corner of sold Northeus[ Quorter; thence South
89 degrees 51 minutes It seconds Eest olong the north line of sold Nor[hoes[
Querier e dis[once of 81.2,5 feet to the POINT OF BEGINNING; thence continuing
~outh 89 degrees 51 minutes It seconds Eost olong sold north line o dis[once
of 2t55.47 feet to the centerline el~ Cherry Tree Avenue; thence South 45
degrees 49 minutes 55 seconds West olong soid centerline s dis[once of
1089.07 feet to o roilrood spike et the Nor[hoes[ corner el e porcel of lend
described in o deed to Morion K. Myers recorded os Instrument Number 90-05tt4
in the Office of the Recorder of Homilton County;. thence North 85 degrees 04
minutes 46 seconds West o dis[once of 5,50.00 feet; thence South O0 degrees tO
minutes 45 seconds Eest o dis[once of tSO. O0 feel; [hence South 44 decjrees 40
minutes t5 seconds West o dlstonce of 70.90 feet; theoce South 89 degrees 51
minutes I1 seconds West perollel with soid north querter line o dis[once of
100.00 feet; thence South 55 degrees ,54 minutes 44 seconds West o dis[once of
150.59 feet; thence North 57 degrees 15 minutes 52 seconds West o dis[once of
416.0,5 feet; thence North 27 degrees 5,5 minutes 06 seconds Wes[ o dis[once of
810.04 feet to the POINT OF BEGINNING. Contoining 29.585 ocres, more or less.
9609530~'~5
Filed for' Recot'd in
HANILTQN COUNTY~ INDIANA
t,IARY L CLARK
FIRST SUPPLEMENT TO On 07-19-1996 At 03:56
16. O0
DECLARATION OF COVENANTS, DELL 0 Pg. 0 -
CONDITIONS AND RESTRICTIONSv o 1.
OF THE TRAILS AT AVIAN GLEN
This First Supplement is made this 9A~ day of Suly, 1996, by Davis Homes, LLC, an
Indiana limited liability company (the "Developer").
1. Developer is the owner of eenain 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 September 11,
1995 as Instrument No. 95-$1394 in the Office of the Recorder of Hamilton County, Indiana (the
"Declaration").
3. Developer reserved in said Declaration the fight from time to time, acting alone, to
subject to the terms and provisions of the Declaration certain additional real estate located within
the tracts adjacent to the Initial Real Estate (as defined in the Declaration) by execution and
recordation in the Office of the Recorder of Hamilton County of a supplemental declaration so
annexing all or any part of such real estate.
4. The Additional Real Estate constitutes a part of the tract adjacent to the Initial Real
Estate.
NOW, THEREFORE, Declarant, in accordance with the rights reserved in the
Declaration, makes this First Supplement as follows:
1. Definitions. All terms used in this First Supplement not otherwise defined in this First
Supplement shall have the meanings set forth in the Declaration. Accordingly, the Additional
Real Estate shall hereafter for ali purposes be included in the definition of Real Estate in the
Declaration, as the same may be amended or supplemented from time to time as therein provided.
2. First Supplement 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 the provisions of the
Declaration, as the same may be amended or supplemented from time to time as therein provided,
and the Real Estate is hereby expanded to 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, restrictions,
easements, assessments, charges and liens of the Declaration, as the same may be amended or
supplemented from time to time as therein provided.
3. Effect of Covenants. 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 as expressly supplemented by this First Supplement,
the Declaration shall continue unchanged and in full force and effect.
IN WITNESS WHEREOF, this First 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
~Chri~to~pher R/White
Vice President
2
STATE OF INDIANA
COUNTY OF MARION
SS:
Before me, a Notary Public in and for the State of Indiana, personally appeared
Christopher R. White, Vice President of Davis Holding Corporation, who acknowledged the
execution of the foregoing First Supplement to Declaration of Covenants, Conditions and
Restrictions of The Trails at Avian Glen.
WITNESS my hand and Notarial Seal this 8,~ day of July, 1996.
Notary Public
Printed Name
My Commission Expires:
Residing in ~4~wx2~.-~.~,~ County
This instrument was prepared by Ronald F. Shady, Jr., Vice President of Davis Holding
Corporation, 3755 East 82nd Street, Suite 120, Indianapolis, Indiana 46240 (317)595-2900
3
~xhibit A
LAND DESCRIPTION
Part of the Northeast O~rter and the Northwest, O,~?ter of Section 28 of
Township 18 North. Range 4 East, located in Clay Township. Hamilton County, Indiana,
described as follows,
Commencing at the Northwest corner of said Northeast Quarter; thence ~outh
89°31'11" East along the North line of said Northeast Quarter a distance of
01.25 feet; thence South 27°55'06" East a distance of 784.04 feet to the
POINT OF BEGINNING; thence continuing South 27°55'06'' East a distance of
26.00 feet; thence South 37°13'32" East a distance of 416.05 feet; thence
South 49°05'40" East a distance of 60.42 feet; thence South 36°56'23" East
a distance of 88.08 feet; thence South 21"49'41" East a distance of 75.94
feet; thence South 05°29'22" East a distance of 28.06 feet; thence South
28°05'$9'' East a distance of 155.56 feet tO the centerline of Cherry Tree
Avenue; thence South 43"49'53" West along, said centerline a distance of
1358.92 feet; thence South 00°54'38# East along said centerline a distance
of 276.00 feet to the Southeast corner of said Northwest Quarter; thence
North 89°49'14'' West along the South line of said Northwest Quarter a
distance of 483.80 feet; thence North 00°25'46" East a distance of 242.00
feet; thence North 89°49'14" West a distance of 180.00 feet to the West
line of the East Half of the East Half of said Northwest Quarter; thence
North 00°25'46" East along said West line a distance of'955,68 feet; thence
South 89°34'14'' East a distance of 119.32 feet; thence North 43°49'53'' East
a distance of 159.79 feet to a point on a curve to the right having a
central angle of 05o51'12'' and a radius of 125.00 feet; thence
Northwesterly along'the arc of said cerve a distance of 12.77 feet (said
arc being subtended by a chord having a bearing of North 43"14'31" West and
a length of 12.76 feet); thence North 43°49'53" East a distance of 124.35
feet; thence North 37°17'32" East a distance of 120.79 feet; thence North
48"43'57" East a distance of 135.57 feet; thence North 71"32'33# East a
distance of 50.00 feet to a point on a curve to the right having a central
angle of 18°53'13'' and a radius of 125.00 feet; thence Northwesterly along
the arc of said curve a distance of 41.21 feet (said arc being subtended by
a chord having a bearing of North 09°00'51" West and a length of 41.02
feet); thence North 00°25'46'' East a distance of 73.52 feet; thence South
89°34'14" East a distance of 120.01 feet; thence North 56"58'02" East a
distance of 105.20 feet; thence North 02"55'46" East a distance of 142.49
feet to a point on a curve to the left having a central angle of 05°47'44#
and a radius of 975.00 feet; thence Northwesterly along the arc of said
curve a distance of 98.62 feet (said arc being subtended by a chord having
a bearing of North 10°30'41" West and a length of 98.50 feet); thence North
76°35'27~ East a distance of 195.00 feet; thence South 56"38'22" East a
distance of 53.71 feet to a point on a curve to the right having a central
angle of 13'43'$7# and a radius of 225.00 feet; thence Northeasterly along
the arc of said curve a distance of 53.93 feet (said arc being subtended by
a chord having a bearing of North 40o13'36" East and a length of 53.80
feet) to the Point of Beginning. Containing 41.912 Acres, more or less.
desc5\924091d
RFP/bgs 10/30/95
1tee fo~ Reco~d in
HRN%LTON COUNIY~ %NDIRNR
NARY L CLARK
On 07-07-1998 At 03:5~
DEC COV RES 16,00
SECOND SUPPLEMENT TO
DECLARATION OF COVENANTS,
CONDITIONS AND RESTRICTIONS
OF TIlE TRAILS AT AVIAN GLEN
This Second Supplement is made this_'~f---d day of
Davis Homes, LLC, an Indiana limited liability company (the "Developer").
· 1998, by
1. Developer is the owner ofcertain 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 September. 1 I,
1995 as Instrument Ho. 95-51394 in the Office ofthe Recorder of Hamilton County· Indiana (the
"Declaration").
3. Developer reserved in said Declaration the 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 adjacent to the Initial Real Estate (as defined in the Declaration) by execution and
recordation in the Office of the Recorder of Hamilton County of a supplemental declaration so
annexing all or any part ofsuch real estate.
4. The Additional Real Estate constitutes a part of the tract adjacent to the Initial Real
Estate.
NOW, THEREFORE, Declarant, in accordance with tho rights reserved in the
Declaration, makes this Second Supplement as follows:
1. Definitions. All terms used in this Second Supplement not otherwise defined in this
Second Supplement shall have the meanings set forth in the Declaration. Accordingly, the
Additional Real Estate shall hereafter for all purposes be included in the definition of Real Estate
in the Deci:iration, as the same may be amended or supplemented from time to time as therein
provided.
Exhibit #A" ~'
Part of the Northeast Quarter and the Northwest, Quarter of Section 28 of
Township 18 North, Range 4 East, located in Clay Township, Hamilton County, Indiana,
described as follows ~ \,,
BEGINNING at the Northwest corner of said Northeast'O~rter; thence
South 89°31'11'' East along the North line of said Northeast Quarter a
distance of 01.25 feet; thence South 27°55'06'. East a distance of
784.04 feet to a point of a curve to the left having a central angle
of 13"43'57" and a radius of 225.00 feet; thence Southwesterly along
the arc of said curve a
distance of 53.93 feet (said arc being subtended by a chord having a
bearing of South 40°13'36" West and a length of 53.80 feet); thence
North 56'38'22" West a distance of 53.71 feet; thence South 76°35'27"
'West a distance of 195.00 feet to a point on a curve to the right
having a central angle of 05"47'44" and a radius of 975.00 feet;
thence Southeasterly along the arc of said curve a distance of 98.62
feet (said arc being subtended by a chord having a bearing of South
10"30'41" East and a length of 98.58 feet); thence South 82"55'46"
West a distance of 142.~9 feet; thence South 56°58'02'' West a distance
of 105.20 feet; thence North 89"34'14" West a distance of 120.01 feet;
thence South 00'25'46" West a distance of 73.52 feet to the point of
curvature of a curve to the left having a central angle of 18"53'13"
and a radius of 125.00 feet; thence Southeasterly along the arc of
said curve a distance of 41.21 feet (said arc being subtended by a
chord having a bearing.of South 09°00'51" East and a length of 41.02
feet); thence South 71 32'33" West a distance of 50.00 feet; thence
South 48°43'57" West a distance of 135.57 feet; thence South 37°17'32"
West a distance of'120.79 feet; thence South 43°49'53" West a distance
of 124.35 f~et to a point on a curve to the left having a central
angle of 05 51'12" and a radius of 125.00 feet; thence Southeasterly
along the arc of said curve a distance of 12.77 feet (said arc being
subtended by a chord having a bearing of South 43°14'31" East and a
length of 12.76 feet); thence South 43"49'53" West a distance of
159.79 feet; thence North 89'34'14" West a distance of 119.32 feet to
the west line of the East Ball of the East Half of said Northwest
Quarter; thence North 00°25'46" East along said West line a
distance of 1451.01 feet to the Northwest corner of the East Half of
the East Half of said Northwest Quarter; thence South 89'54'27" East
along the North line of said Northwest Quarter a distance of 665.66
feet to the Point of Beginning. Containing 23.513 Acres, more or
STAT~ OF INDIANA )
)
COUNTY OF MARION )
SS:
Before me, a Notary Public in and for the State of Indiana, personally appeared
Christopher R. White, Vice President of Davis Holding Corporation, who acknowledged the
execution of the foregoing Second Supplement to Declaration of Covenants, Conditions and
Restrictions of The Trails at Avian Glen.
WITNESS my hand and Notarial Seal this $~ day of ~'uese ,1998.
Printed Name
My Commission Expires: 14- z~. QQ
Residing in ~a~X-~o~ County
This instrument was prepared by Ronald F. Shady, .Ir., Vice President of Davis Holding
Corporation, 3755 East 82nd Street, Suite 120, Indianapolis, Indiana 46240 (317)595-2900
3
2. Second Supplement 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 the provisions of the
Declaration, as the same may be amended or supplemented from time to time as therein provided,
and the Real Estate is hereby expanded to include the Additional Real Estate, all as if the same
had originally been included in the Declaration. The Additional Real Estate shall be hereal~er
held, transferred, sold, conveyed, hypothecated, encumbered, leased, rented, used, improved and
occupied subject to all of the provisions, agreements, covenants, conditions, restrictions,
easements, assessments, charges and liens of the Declaration, as the same may be amended or
supplemented from time to time as therein provided. ~,,
3. Eff~ of Covenants. 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. D~¢larati0n Continuous. Except as expressly supplemented by this Second
Supplement. the Declaration shall continue unchanged and in fidl force and effect.
IN WITNESS WHEREOF, this Second 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
Vice President
2
Insteulent
99099~803
FLled fo~ Reeoed in
H~NILTON COUNTY~ INDI~N~
N~RY L CL~RK
On 04-1&-1999 At 09:23:02
DEC COV RES 16.00
OR
THIRD SUPPLEMENT TO
DECLARATION OF COVENANTS,
CONDITIONS AND RESTRICTIONS
OF THE TRAILS AT AVIAN GLEN
This Third Supplement is made this I?A~ day of..~/k~~ 1999, by Davis
Homes, LLC, an Indiana limited liability company (the 'Developer").
1. Developer is the owner of certain 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. ember 11,
1995 as Instrument No. 95-51394 in the Office ofthe Recorder of Hamilton County, Indiana (the
"Declaration").
3. Developer reserved in said Declaration the 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 adjacent to the Initial Real Estate (as defined in the Declaration) by execution and
recordation in the Office of the Recorder of Hamilton County of a supplemental declaration so
annexing all or any part ofsuch real estate.
4. The Additional Real Estate constitutes a part of the tract adjacent to the Initial Real
Estate.
NOW, THEREFORE, Declarant, in accordance with the rights reserved in the
Declaration, makes this Third Supplement as follows:
!. Definitions. All 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
Reel Estate shall hereafter for all purposes be included in the definition of Real Estate in the
Declaration, as thC same may be amended or supplemented from time to time as therein provided.
2. Third Supplement 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 the provisions of the
Declaration, as the same may be amended or supplemented from time to time as therein provided,
and the Real Estate is hereby expanded to 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, restrictions,
easements, assessments, charges and liens of the Declaration, ss the same may be amended or
supplemented from time to time as therein provided.
3. ?~J~YY~. 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. clar i n in s. Except as expressly supplemented by this Third Supplement,
the Declaration shall continue unchansed and in full force and effect.
IN WITNESS WHEREOF, this Third Supplement has bean executed by Developer as of
the date ftrst abovo written.
By: Davis Homes, LLC,
an Indiana limited liability company
By: Davis Holding Corporation,
managing member
Vice President
2
STATE OF INDIANA )
)
COUNTY OF MARION )
SS:
Before me, a Notary Public in and for the State of Indiana. personally appeared
Christopher R. White, Vice President of-Davis Holding Corporation, who acknowledged the
execution of the foregoing Third Supplement to Declaration of Covenants, Conditions and
Restrictions of The Trails at Avian Glen.
W]TNESS my hand and Notarial Seal this L.~4~ day of~j~,~,~j~ 1999.
printed Name
My Commission Expires: ti- Z~- co
Residing in ~ County
This instrument was prepared by Ronald F. Shady, Jr., Vice President of Davis Holding
Corporation, 3755 East 82nd Street, Suite 120, Indianapolis, Indiana 46240 (317) 595-2900
,~xhibit "A"
Part of the Northeast Quarter nnd the Northwest Quarter of Section 28. Township 18 North.
Rnnge 4 .East. Locate in Clay Township. Hnmi!ton County. Indiana, described ns follows:
Commencing nt the Southeast Quarter of said Section 28; thence North 89 degrees 35 minutes
24 seconds West along the South line thereofn distance of 579.48 feet to n railroad spike nt the
Point of Beginning; thence continuing North 89 degrees 35 minutes 24 seconds West along snld
South line a distance of2086.15 l~et to n Brass Plug marking the Southwest comer ofsnid
Northeast Quarter;. thence North O0 degrees 54 mlnutcs 38 seconds West along the centcrline of
Cherry tree Avenue n distnnce of 276.00 Feet to n half inch rebar; thence North 43 degrees 49
minutes 53 seconds East nlong said centerline n distnnce o£2204.78 Feet to n railrond spike;
thence South 89 degrees 39 minutes 16 seconds East n distance of 574.92 Feet to n 5/8 inch rebar
with plnstlc cop stamped" SCHNEIDER ENG FIRM fl0001"; thence South 00 degrees 20
minutes 43 seconds West n dlstnnce of 1877.95 feet to the Point of Beginning, COntninlng
62.263 acres, more or less,
Except,
Pert of the N~lm~t Ouorlar of Section 28 of Toweship 18 Narth, Range 4 Fast, located In Oay Township, Hamitoo County,
'Indian0. desaibed as fellows:
Canm~nc, ing at the Snutheast canter of the Northeast Quoter of ea~d Soctim 26; thence Narth 89 degrees ~ minutes 24
seconds West along the South line thereof a dbtonce of 579.48 feet to o ralreod sptiu~ thrace North 00 degrees 20
minutes 43 seconds East patella with the east llne of saki Northeast Quarter o distance of 914.65 feet to the POINT OF
EJ~GINNING; thrace eenlkming North O0 degrees 20 minutes 4,3 seconds East p~rallal with said East line a disLonce of
963.29 feet; thence North 89 degrecs 39 minutes 16 seconds West a distance of 519.79 feet; thence South 43 degrees 49
minutes 52 seconds West parallel with the cenLetl[ne o! Cherry Tree Rood o distance of 668,25 feet to a point on
the
approximate cmtefline of Uitchmer Drain; (the noxt six courses aleag tho opproxknate contadina al' Mitchmef DraIn) thence
South 67 degrees 23 minutes 45 seconds Fast a dlstonce of 140.28 feet: thence South 70 degrees 50 minutes 22 seconds
East o distance of 366.64 test~ thence South 80 degrees 21 minutes 15 secondS East o distance of 199.17; thrace South
76 degrees 56 minutes 20 seconds £ast a distance o! 156.75 feet; thence South 69 degrees 26 minutes 5,5 seconds East o
d'nstonce of 209.70 feet; thence South 76 degrees 05 minutes 02 seconds East a (tiM. ones of 94.90 feet to tho POINT OF
9[GINNING, Cent(lining 16.`369 ocrec, more or toss.
15~1an-99
THE TRAILS AT AVIAN GLEN
COMMUNITY ASSOCIATION, INC.
PROPOSED BUDGET
Description
Lawn Care:
Mowing (28~ $500/each)
Fert. ANeed Control
Total:
Irrigation:
Maintenance/Repair.
Tree & Shrub Cam:
Mulching
Fert/Disease Control
Seasonal Flowers
Total:
Lake Maintenance:
Algae Control/Dye
Fountain Maintenance
Total:
LightinglFountainllrrigationlBike Path:
Bike Path Maintenance/Common Electric/VVater:
Pool/Cabana
Open/Close
Chemicals
Cleaning Labor
Misc. Repairs
Gas
Lifeguard
Total:
Snow Removal (3" or more):
3 ~ $8501each:
Insurance:
Accounting/Management Fees:
Postage/Stationery:
Legal Fees:
Property Taxes (Common Areas)
TOTAL EXPENSES:
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
$2,5O0.00
$9,576.00
$500.00
$825.00
$2,000.00
$79,801.00
266 Unit Basis
12 Month Fiscal
Per Unit/Month
$5.33
$0.56
$1.75
$1.00
$3.76
$6.97
$0.80
$0.78
$3.00
$0.16
$0.26
$0.63
$25.00