HomeMy WebLinkAboutCovenantsDECLARATION OF COVENANTS,
CONDITIONS, AND RESTRICTIONS
OF HEATHER KNOLL
THIS DECLARATION (hereafter "Declaration"), made this ~.~t~/', day of
2004, by PPV, LLC, an Indiana limited liability company (hereafter "Declarant");
WITNESSETH:
WHEREAS, Declarant is the owner of certain real estate, located in Hamilton County,
Indiana, which is more particularly described in what is attached hereto and incorporated
herein by reference as Exhibit "A" (hereafter "Real Estate"), upon which a residential
subdivision known as Heather Knoll (hereafter "Development") will be developed;
WHEREAS, the real estate described in what is attached hereto and incorporated herein by
reference as Exhibit "B" shall hereafter be referred to as the "Additional Real Estate".
WHEREAS, Declarant desires to subdivide and develop the Real Estate and Declarant may,
in the future, desire to subdivide and develop such portions (or ail) of the AdditionaI Real Estate as
may be made subject to the terms of this Declaration, as hereinafter provided;
WHEREAS, the term "Property" shall hereafter mean and refer to the Real Estate together
with such portions of the Additional Real Estate as have from time to time been subjected to this
Declaration.
NOW, THEREFORE, the Declarant hereby declares that all of the Lots (hereafter defined) in
the Property, as they are held and shall be held, conveyed, hypothecated, or encumbered, leased,
rented, used, occupied, and improved, are subject to the following restrictions, all of which are
declared to be in furtherance of a plan of the improvement and sale of the Property and each Lot
situated therein, and are established and agreed upon for the purpose of enhancing and protecting the
value, desirability and attractiveness of the Property as a whole and each of the Lots situated therein.
This Declaration shall run with the Property and shall be binding upon the Declarant, its successors and
assigns, and upon the parties having or acquiring any interest in the Property or any part or parts
thereof subject to these restrictions/The restrictions shall inure to the benefit of the Declarant and its
successors in title to the Property or any part or parts thereof.
As of the date of execution hereof, the Property consists solely of the Real Estate. The Owner
of any Lots subject to these restrictions, by (i) acceptance of a deed conveying title thereto, or the
execution of a contract for the purchase thereof, whether from Declarant, a Builder, or a subsequent
Owner of such Lot or (ii) the active occupancy of any Lot, shall accept such deed, execute such
contract and/or actively occupy such Lot subject to each restriction and agreement herein contained.
Declarant shall have the right, and hereby reserves on to itself the right, at any time, and from
time to time, at any time prior to the expiration of the Development Period, to add to the Property and
subject to this Declaration all or any part of the Additional Real Estate. Any portion of the Additional
Real Estate shall be added to the Property, and therefore and thereby becomes a part of the Property
and subject in all respects to this declaration and all rights, obligations, and privileges herein, when
Declarant places of record in Hamilton County, Indiana an instrument so declaring the same to be part
of the Property, which supplementary declaration (hereafter "Supplementary Declaration") may be as
part of a subdivision plat for any portion of the Additional Real Estate, or by an amendment or
supplement to this Declaration. Such Supplementary Declaration may contain modifications hereto
and additional terms, conditions, restrictions, maintenance obligations, and assessments as may be
necessary to reflect the different character, if any, of the Additional Real Estate.
Upon recording of any such instrument on or before the expiration of the Development
Period, the real estate described therein shall, for all purposes, thereafter be deemed a part of the
Property and the Owners of any Lots within such real estate shall be deemed for all purposes, to have
and be subject to all of the rights, duties, privileges, and obligations of Owners of Lots within the
Property. No single exercise of Declarant's right and option to add and expand the Property as to any
part or parts of the Additional Real Estate, shall preclude Declarant from thereafter from time to time
further expanding and adding to the Property to include other portions of the Additional Real Estate,
and such right and option of expansion may be exercised by Declarant from time to time as to all or
any portions of the Additional Real Estate so long as such expansion is accomplished on or before
the expiration of the Development Period. Such expansion of the Property is entirely at the sole
discretion of the Declarant and nothing contained in this Declaration or otherwise shall require
Declarant to expand the Property beyond the Real Estate, or to any portions of the Additional Real
Estate which Declarant may voluntarily and in its sole discretion from time to time subject to this
Declaration.
ARTICLE 1
DEFINITIONS
The following are the definitions of the terms as they are used in this Declaration:
Section 1.1 "Association" shall mean the Heather Knoll Homeowners Association, Inc., a not-
for-profit corporation, the membership and power of which are more' fully described in Article IX of
this Declaration.
Section 1.2 "Board" or "Board of Directors" shall mean the Board of Directors of the
Heather Knoll Homeowners Association, Inc.
Section 1.3 "Builder" means a person or entity regularly engaged in the business of
constructing single family residences for sale and responsible for the original construction of a
residence on a Lot.
Section 1.4 "Committee" shall mean the Development Standards and Architectural Control
Committee, as more fully described in Article VI of this Declaration.
Section 1.5 "Common Area" shall mean those areas (i)designated on current and future Plats
as a "Block", "Common Area", "C.A.", "Limited Common Area", "LCA", and (ii) any other areas
designated by the Declarant for the common use and enjoyment of the residents of the Development.
Section 1.6 "Development Period" means the period of time commencing with Declarant's
acquisition of the Property and ending when Declarant has completed the development and sale of, and
no longer owns, any Lot or any other portion of the Property. The Development Period shall
recommence each time the Declarant acquires any part (or all) of the Additional Real Estate.
Section 1.7 "Drainage Board" means the Hamilton County Drainage Board.
Section 1.8 "Lake Area" means any Common Area on which a lake now exists or is later
constructed by Declarant and "Lake" means a body of water which now exists or is later constructed
by Declarant in a Lake Area.
Section 1.9 "Lot" shall mean any parcel of residential real estate designated on a Plat that is
recorded in the Office of the Recorder of Hamilton County, Indiana.
Section 1.10 "Owner" shall mean the record owner, whether one or more persons or entities,
of the fee simple title to any Lot which is a part of the Property, including contract sellers, but
otherwise excluding those having such interest merely as security for the performance of an
obligation. Unless specifically indicated to the contrary, the term "Owner" shall include the
Declarant and a Builder.
Section 1.11 "Person" shall mean an individual, firm, corporation, partnership, association,
trust or other legal entity or any combination thereof.
Section 1.12 "Plat" shall mean the subdivision plats of the Property which are recorded with
the Recorder of Hamilton County, Indiana.
Section 1.13 "Pool" shall mean the recreational swimming pool and attached bathhouse
which Declarant, in its sole and absolute discretion, may construct on the Property.
Section 1.14 "Residence" shall mean any structure intended exclusively for occupancy by
single family together with all appurtenances thereto, including private garage and recreational
facilities usual and incidental to the use of a single family residential lot.
Section 1.15 "Special Use" shall mean any use defined or identified in any applicable zoning
ordinance as a "Special Use".
Section 1.16 "Trail System" means paths or trails so designated by the Board and located in
a Common Area.
ARTICLE II
CIIARACTER OF THE DEVELOPMENT
Section 2.1. In General. No structure shall be erected, placed or permitted to remain upon
any Lot except a Residence. All Property located within a plat which has not been designated by
numbering shall be used in a manner determined by the Declarant. Lots may be used only for single-
family residential purposes and only one Residence may be constructed thereon. No portion of any
Lot may be sold or subdivided such that there will be thereby a greater number of Residences in the
Property than the number of Lots depicted on the Plat. Notwithstanding any provision in the applicable
zoning ordinance to the contrary, no Lot may be used for any "Special Use" that is not clearly
incidental and necessary to single family dwellings.
Section 2.2. Other Restrictions. Ali Property shall be subject to the easements, restrictions,
and limitations of record appearing on a Plat and amendments thereto, on recorded easements, and
rights-of-way, and also to all governmental zoning authority and regulation affecting the Property, all
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of which are incorporated herein by reference.
ARTICLE III
EASEMENTS
Section 3.1 Designated Easements. The following are easements designated or to be
designated, in the Declarant's sole discretion, upon a plat:
(A) Designated Drainage, Utility, and Sewer Easements. There are strips of ground
designated on the Plat as drainage easements, utility easements, sewer easements, sanitary sewer
easements and storm sewer easements, or any combination thereof, which are hereby reserved to the
appropriate governmental entities, public utilities, and private utilities for the installation and
maintenance of swales, ditches, pipes, drains, electric lines, gas lines, telephone lines, fibre optic cable,
high speed intemet lines, sanitary sewers, manholes, detention and retention areas or other drainage
facilities. Purchasers of Lots in this subdivision shall take title subject to such easements hereby
created and subject at all times to the rights of proper authorities to service and maintain such drainage
facilities and easements, and no permanent structure of any kind and no part thereo.f, except fences
which do not retard or impede the flow of drainage water and which are approved by any entity to
which the easement is dedicated shall be built, erected or maintained on said drainage easements,
except by the Declarant or its assigns. It shall be the responsibility of the Association and the Owners
of the areas enclosed within such easements to maintain such areas in such conditions that the flow of
storm drainage waters on, across and from said areas shall not be impeded, diverted or accelerated.
Such use for storm water movement or retention or detention is hereby declared to be an easement and
servitude upon said ]and for the benefit of the Owners of other land included within the Plat, upstream
or downstream, affected by such use and for any proper governmental agency or department or any
private or public utility. All proper governmental agencies or departments and public and private
utilities are hereby given the right to obtain access to such areas to perform maintenance and to
perform such maintenance as may be necessary to protect that easement and servitude rights. It shall be
the responsibility of the Association and the O~vner of any Lot or parcel of land within the Plat to
comply at ail times with the provisions of the drainage plan as approved for the applicable Plat by the
appropriate governmental agency or department and the requirements of all drainage permits for such
Plat issued by those agencies. Failure to so comply shall operate as a waiver and release of the
Declarant, the developer, or their engineers and agents from all liability as to damage caused by storm
waters or storm drainage.
Further, there are easements and servitudes upon the land within the Plat in favor of surface
water runoff along natural valleys and drainage channels running to Owners of other land contained
within the Plat, upstream and downstream. It shall be the responsibility of the Association and the
Owners of these natural valleys and channels to use their land and maintain said natural valleys and
channels in such manner and condition that the flow of storm drainage waters on, across, from and to
such areas shall not be impeded, diverted or accelerated.
(B) _Designated Mounding, Landscaping, and Screening and Sign Easements. Any strips of
grounds shown or designated on the Plat for landscaping including, but not limited to, landscape
easements, landscape maintenance easements, and/or landscape maintenance access easements are
hereby reserved unto Declarant, during the Development Period, and, thereafter, unto the Association,
for the purposes of (i) providing signs which either advertise the Property and the availability of Lots
or identify the Property or, (ii) installing landscaping, mounding, and screening. Declarant reserves
unto itself during the Development Period and thereafter unto the Association, the exclusive and sole
right to erect signs and install landscaping, mounding, and screening within these strips of ground.
Notwithstanding anything in this Declaration to the contrary, no planting shall be done, and no hedges,
walls, fences or other improvements shall be erected or maintained in the area of such easements,
except by the Declarant during the Development Period, and thereafter by the Association.
Furthermore, notwithstanding anything in this Declaration to the contrary, no planting shall be done,
and no hedges, walls, fences, structures, or other improvements shall be erected between (i) any
landscape easement or landscape maintenance easement, and (ii) any perimeter roadway, public
highway or right-of-way along the perimeter or boundary of the Property, except by the Declarant
during the Development Period and thereafter by the Association.
(C) Easement Work. Notwithstanding any architectural approval under Article VI below,
during the course of any maintenance, service, repair or work upon any easement, the Declarant, the
Association, any private utility, any public utility, and/or any governmental entity shall have the right
and the authority, without any obligation or liability whatsoever to any Owner, to remove, damage, or
destroy any fence or other structure or landscaping built, erected, maintained or planted in any
easement described in Section 3.1 (A) above and without any obligation of replacement.
Section 3.2 General Drainage, Utility., Sewer and other Development Easements. The
following rights reserved in this Section shall not be exercised, after the conveyance of any Lot, in a
manner that (i) u~easonably and adversely affects any Residence or portion thereof located upon such
Lot or the Owner's use or enjoyment thereof, or (ii) unreasonably restricts the rights of ingress and
egress to such Lot. The following r~ghts and easements reserved by Declarant in this Section shall run
with the land, and Declarant's right to further alter or grant easements shall automatically terminate and
pass to the Association one (1) year after Declarant shall have conveyed the last Lot within the
Property.
(A) Declarant hereby reserves unto itself during the Development Period, and thereafter
unto any public or private utility, a general easement ("Drainage, Utility and Sewer Easement") for
drainage, utility and sewer purposes in, on and over all of the Common Area and any Lot, so as to
permit the installation and allow to be maintained all electrical, telephone, water, gas, sanitary and
storm sewer, television (including but not limited to cable and/or satellite) transmission hcilities,
security systems and other utility services (including all necessary lines, pipes, wires, cables, ducts,
antennae and other equipment and facilities) to serve any Residence. Any Drainage, Utility and Sewer
Easement shall include all areas of the Property outside any Residence, with the exception of any areas
covered by chimneys, or patios. Improvements or permanent structures installed within the Common
Area are subject to the rights (including the right to remove where reasonably necessary without duty
of replacement or reimbursement) of the Declarant and any public or private utility to construct,
maintain, repair or remove any necessary facilities. By virtue hereof, Declarant reserves the right to
install a lake(s) or pond(s) on any Common Area. The rights hereunder and easements hereby reserved
survive the conveyance, by the Declarant to the Association, of any Common Area. This easement
shall be in addition to any easement defined upon a Plat as a drainage, sewer, utility, cable, landscape,
sign, transmission, flowage or similar type easement.
(B) Declarant reserves unto itself during the Development Period, and thereafter unto the
Association, an easement ("Lake Easement") and right-of-way in and to any Lake Area (s) or areas
now or hereafter shown on the Plat as a "Block", "Common Area", or "Lake" or any other Common
Area within the Property used as a water retention or detention area, or on which a Lake now exists or
is later constructed, for the purpose of fulfilling any maintenance obligations set forth in this
Declaration and/or establishing and maintaining proper surface water drainage throughout the Property,
including dewatering or aquatic maintenance, and an easement of ingress and egress through so much
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of the remainder of the Property as is reasonably necessary or appropriate, to perform such actions as
Declarant or the Association deem necessary or appropriate, for the purpose of establishing and
maintaining proper surface water drainage throughout the Property, which such actions shall include
the construction, repair and maintenance of retention and detention ponds or lakes in accordance with
the requirements of applicable law and of all governmental agencies having jurisdiction (without
undertaking any obligation or duty to exceed such requirements).
(C) Declarant reserves unto itself during the Development Period, and thereafter unto the
Association, the right and an undefined sign and facilities easement ("Sign and Facilities Easement") to
install, erect, construct and maintain an entryway sign or signs, directional signs, advertising signs
advertising the Property or the Lots therein, lighting, walkrways, pathways, fences, walls and any other
landscaping, architectural and recreational features or facilities considered necessary, appropriate,
useful or convenient, anywhere upon the Property (except upon any Lot after the first conveyance
thereoF). Any such signs shall comply with any applicable zoning requirements and all such facilities
shall be maintained by the Association as a part of its Common Area maintenance obligations.
(D) Declarant reserves unto itself during the Development Period, and thereafter unto the
Association, the full right, title and authority to:
(i) Relocate, alter or otherwise change the location of any Drainage, Utility and
Sewer Easement, Lake Easement, and/or Sign and Facilities Easement, or any facility at any
time located therein or thereon;
(ii) Grant such further easements, licenses and rights-of-way, temporary or
permanent, exclusive or non-exclusive, surface or otherwise, as Declarant may deem necessary
or appropriate, for ingress and egress, utility and similar purposes on or within any portion of
the Property, for the benefit of the Property or any portion thereof; and,
(iii) Describe more specifically or to change the description of any Drainage,
Utility and Sewer Easement, Lake Easement, and/or Sign and Facilities Easement or any other
easement, license or right-of-way now or hereafter existing on the Property, by written
instrument, amended Plat or amendment to the Plat recorded in the Office of the Recorder of
Hamilton County, Indiana.
(E) The title of the Association (as to the Common Area owned by the Association during
the Development Period) and of any Owner of any Lot shaI1 be subject to the rights and easements
reserved herein.
.. ARTICLE IV
ADDITIONAL PROVISIONS RESPECTING
OF SANITARY SEWER UTILITY
Section 4.1 Sanitary sewer utility easements allow for the construction, extension, operation,
inspection, maintenance, reconstruction, and removal of sanitary sewer facilities and give utility
companies, whether public or private, as well as any governmental authorities, the right of
ingress/egress.
Section 4.2 No trees shall be planted directly over building sewers (laterals). Any landscaping
placed within easements or right-of-ways may be removed, damaged, or destroyed by the applicable
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utilities without an obligation of repair or replacement.
Section 4.3 No mounding, lighting, fencing, signs, retaining walls, landscaping walls, entrance
walls, irrigation lines, or other improvements shall be placed within ten (10) feet of the center of the
sanitary sewer infrastructure. Any of these which are placed within easements or right-of-ways may be
removed by the applicable utilities without the obligation of replacement.
Section 4.4 Ail Owners not serviced by gravity sanitary sewer service are responsible for all
maintenance, repair and replacement of all grinder/ejector pumps, force mains and gravity laterals from
the residence to its connection to the sanitary sewer main.
Section 4.5 The discharge of clear water sources, including, but not limited to, foundation
drains, sump pumps, and roof drains to the sanitary sewers is prohibited.
_Section 4.6 Grade changes across sanitary sewer facilities must be approved in writing by the
applicable utilities.
ARTICLE V
COVENANTS AND RESTRICTIONS
Section 5.1 Land Use. Lots may be used only for single-family residential purposes and only
one Residence not to exceed the maximum height permitted by and measured pursuant to the Zoning
Ordinance of the municipality having zoning jurisdiction over the Property may be constructed
thereon. No portion of any Lot may be sold or subdivided such that there will be thereby a greater
number of Residences in the Property than the number of Lots depicted on the Plat. Notwithstanding
any prov/sion in the applicable zoning ordinance to the contrary, no Lot may be used for any "Special
Use" that is not clearly incidental and necessary to single family dweI]ings.
Section 5.2 Address Identification. The numbers representing the address of each Residence
will be of a uniform appearance and will be displayed in a uniform location and manner, as determined
by the Committee.
Section 5.3 Lighting. All homes will have two dusk to dawn lights located on the sides of the
garage doors. Street lights may be installed by Declarant in the utility easements on Lots and in the
Common Areas. Street lights shall be operated and maintained by the Association. The Association
reserves the right to remove street lights deemed no longer necessary by the Board of Directors.
Section 5.4 Temporary Structures. No trailer, shack, tent, boat, basement, garage or other
outbuilding may be used at any time as a dwelling, temporary or permanent, nor may any structure of a
temporary character be used as a dwelling.
Section 5.5 Driveways. All driveways in the Property shall be concrete in material.
Section 5.6 Water Systems. Each Owner shall connect to the water main maintained by a
private or public water utility to provide water for domestic use on the Lot and shall pay all connection,
availability, or other charges lawfully established with respect to connections thereto.
Section 5.7 Drainage. In the event storm water drainage from any Lot or Lots flows across
another Lot, provision shall be made by the Owner of such downstream Lot to permit such drainage to
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continue, without restriction or reduction, across the downstream Lot and into the natural drainage
channel or course, although no specific drainage easement for such flow of water is provided on the
Plat. To the extent not maintained by the Drainage Board, "Drainage Easements" reserved as drainage
swales shall be maintained by the Owner of the Lot upon which such easements are located such that
water from any adjacent Lot shall have adequate drainage along such Swale. Lots within the Property
may be included in a legal drain established by the Drainage Board. In such event, each lot in the
Property will be subject to assessment by the Drainage Board for the costs of maintenance of the
portion of the drainage system and the lake control structures included in such legal drain, which
assessment will be a lien against the Lot. The elevation of a Lot shall not be changed so as to
materially affect the surface elevation or grade of surrounding Lots. Perimeter foundation drains and
sump pump drains shall be connected whenever feasible into a subsurface drainage tile. Down spouts
and drains shall be designed to disperse runoff for overland flow to street or swale collection systems.
Each Owner shall maintain the subsurface drains and tiles located on his Lot and shaI1 be liable for the
cost of all repairs thereto or replacements thereof.
Section 5.8 S i g n s. Except for such signs as Declarant may in its absolute discretion display
in connection with the identification of development of the Property and the sale of Lots therein, no
sign of any kind shall be displayed to the public view of any Lot except that one (1) sign of not more
than four (4) square feet may be displayed at any time for the purpose of advertising the property for
sale, or may be displayed by a builder to advertise the property during construction and sale.
Section 5.9 Fencing. This subsection is applicable to all Lots except those Lots which are used
for a sales office or model home by the Declarant or a Builder. No fence, wall, hedge, or shrub planting
higher than eighteen (18) inches shall be permitted betwveen the front properly line and the front
building set back line except where such planting is part of Residence landscaping approved by the
Architectural Review Committee and the prime root thereof is within six (6) feet of the Residence.
Comer Lots shall be deemed to have two (2) front property lines. Trees shall not be deemed "shrubs"
unless planted in such a manner as to constitute a "hedge". All fencing shall be unpainted cedar, dog-
eared shadow box on both sides of the fence, unless otherwise approved by the Committee. All fencing
on a Lot shall be uniform in height, style, and color and substantially similar in material. No fence shall
be erected or maintained on or within any Landscape Easement except such as may be installed by
Declarant and subsequently replaced by the Association in such manner as to preserve the uniformity
of such fence. No fence may be erected on a Lot without prior approval of the Committee, which shall
approve or disapprove the location of all fences; provided, however, that all fencing erected on a Lot
must be erected either (i) within six (6) inches of the property line of such Lot, or (ii) more than ten
(10) feet from the property line of such Lot. Owners of Lots adjoining Lots on which a fence is erected
within six (6) inches of the property line shall have the r/ght to connect a fence to the fence on the
adjoining Lot if the new fence satisfies ail of the criteria expressed herein and is approved by the
Committee. The Committee may establish further restrictions with respect to fences, including
limitations on (or prohibition of) the installation of fences in the rear yard of a Lot abutting a Lake and
design standards for fences. All fences shall be kept in good repair. No fence, wall, hedge, or shrub
planting, or tree foliage which obstructs sight lines at elevations between two (2) and six (6) feet above
the street shall be placed or permitted to remain on any comer Lot within the triangular area formed by
the Lot lines at the streets and a line connecting points 25 feet from the intersection of said street Lot
lines; and, the same rule shall apply to the intersection of a driveway with a street, in which case the
edge of the driveway pavement shall be substituted for one of the street Lot lines.
Section 5.10 Nuisances. No noxious or offensive activity shall be carried on upon any Lot nor
shall anything be done thereon which may be, or may become, an annoyance or nuisance to the
neighborhood. Violation of any ordinance governing noise, building or lot maintenance, or any other
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public nuisance shall be deemed to be a nuisance creating rights in every affected Owner, the
Declarant, and/or the Association, as the case may be, to enforce the provisions hereof against the
offending Owner. Barking dogs shall constitute a nuisance. In the event of successful enforcement by
an Owner, the Declarant, or an Owner of the provisions thereof, the offending Owner shall be liable to
the prevailing party for attorneys' fees, court costs, and all other costs and expenses of litigation and
collection in connection therewith.
Section 5.I 1 Garbage and Refuse Disposal. No Lot shall be used or maintained as a dumping
ground for trash. Rubbish, garbage or other waste shall be kept in sanitary containers out of public
view except not more than 24 hours prior to its removal thereof, when it may be placed at the curb of
the Lot. All equipment for storage or disposal of such materials shall be kept clean and sanitary.
Section 5.12 Livestock and Poultry. No animals, livestock or poultry of any kind shall be
raised, bred or kept on any Lot, except that dogs, cats or other household pets may be kept provided
that they are not kept, bred, or maintained for any commercial purpose. The owners of such permitted
pets shall confine them to their respective Lots such that they will not be a nuisance. Owners of dogs
shall so control or confine them so as to avoid barking which will annoy or disturb adjoining Owners.
Unless permitted by the Board of Directors of the Association, no Owner shall maintain more than two
(2) of the same type (dog, cat, bird) of pet nor more than four (4) total pets; provided, however, that
fish which are located in indoor aquariums and which pose no risk to the public health shall not be
considered pets for the purpose of this restriction. No dangerous or potentially dangerous pets, such as
exotic animals (large wild cats, wolves, alligators, snakes which are poisonous or longer than two feet,
poisonous spiders, etc.) shall be permitted to exist in a Residence or on a Lot without the unanimous
consent of the Architectural Review Committee and the Board of Directors; provided, however, that
the decision of the Board of Directors to permit such animal or animals may be overturned by a
majority vote of the Members at any meeting.
Section 5.13 Outside Burning. No trash, leaves, or other materials shall be burned upon a Lot
unless the smoke therefrom would not blow upon any other Lot: Owners shalI use appropriate
incinerators and shall at all times be in compliance with all applicable legal requirements for outside
burning.
Section 5.14 Antennas and Receivers. No antenna, satellite dish, or other device for the
transmission or reception of radio, television, or satellite signals or any other form of electromagnetic
radiation shall be erected, used or maintained outdoors and above ground, whether attached to a
building or otherwise, on any part of the Property, including Lots, without the written approval of the
Architectural Review Committee, which approval shall not be unreasonably withheld; provided,
however, that any such device may be installed and maintained on any Lot without the necessity of
such written approval if, (a) it is not visible from the neighboring Lots, streets or Common Area; or (b)
the Owner, prior to installation, has received the written consent of the Owners of all Lots who would
have views of the device from their Lots; or (c) the device is virtually indistinguishable from
structures, devices, or improvements, such as heat pumps, air-conditioning units, barbecue grills, patio
furniture, and garden equipment, which are not prohibited by these covenants or Bylaws, or (d) it is a
satellite dish 1 meter or less in diameter and not affixed to the roof of a residence; or (e) if prohibition
of the installation, use, and maintenance of such device is specifically preempted and superseded by
applicable governmental authority.
Section 5.15 Exterior Lights. Except on Lots on which there is maintained a sales office or
model home by the Declarant or a Builder, no exterior lights shall be erected or maintained between
the building line and rear lot line so as to shine or reflect directly upon another Lot.
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Section 5.16 Electric Bug Killers. Electric Bug Killers, "zappers", and other similar devices
shall not be installed at a location or locations which result in the operation thereof becoming a
nuisance or annoyance to other Owners, and shall be operated only when outside activities require the
use thereof and not continuously.
Section 5.17 Vacant Lots. It shall be the duty and obligation of the Owner of a vacant Lot to
maintain such Lot and mow the lawn thereofi Declarant and the Association shall have the right, but
not the duty, to enter upon each vacant Lot and to maintain the appearance thereof by cutting weeds,
mowing grass, lrimming trees, removing debris, installing erosion control devices, and performing any
other act reasonable under the circumstances. The Owner shall be responsible for payment of all such
expenses upon demand and the Declarant or the Association, as the case may be, shall have a lien on
such Lot for the payment of such expenses, together with attorneys' fees and all other costs and
expenses of litigation and collection which may be incurred in connection therewith.
Section 5.18 Association's Right to Perform Certain Maintenance. In the event that the Owner
of any Lot shall fail to maintain his or her Lot and any improvements situated thereon in accordance
with the provisions of this Declaration, the Association shall have the right, but not the obligation, by
and through its agents or employees or contractors, to enter upon said Lot and repair, mow, clean or
perform such other acts as may be reasonably necessary to make such Lot and improvements situated
thereon, if any, conform to the requirements of these restrictions. The cost incurred by the Association
shall be assessed to the Owner. The O,srner shall reimburse the Association within thirty (30) days of
the date on which the Owner is invoiced by the Association. The Association shalI have the right to
collect any outstanding maintenance assessments in the manner described in Article XI. Neither the
Association nor any of its agents, employees, or contractors shall be liable for any damage that may
result from any maintenance work performed hereunder.
Section 5.19 Awnings. Except on Lots on which there is maintained a sales office or model
home by the Declarant or a Builder, or as approved by the Committee, no metaI, wood, fabric,
fiberglass or similar type material awnings or patio covers will be permitted anywhere on the Property.
Section 5.20 Diligence in Construction. Subject to inclement weather, every Residence shall
be completed within twelve (12) months after the beginning of such construction or placement. No
improvement which has partially or totally been destroyed by fire or otherwise shall be allowed to
remain in such state for more than three (3) months from the time of such destruction or damage or, if
approval of the applicable casualty insurance is pending, then within three (3) months after such
approval is forthcoming.
Section 5.21 HVAC Units. No heat pumps, air conditioning units or gas meters will be
installed in the front of the Residence.
Section 5.22 Lake and Lake Area(s). Except as otherwise provided, no individual using a
Lake, if any, has the right to cross another Lot or trespass upon shoreline not within a Common Area
owned by the Association, subject to the rights of the Declarant, the Association, their employees,
heirs, successors and assigns as set forth in the Declaration. No one shall do or permit any action or
activity which could result in pollution of any Lake, diversion of water, elevation of any Lake level,
earth disturbance resulting in silting or any other conduct which could result in an adverse effect upon
water quality, drainage or proper Lake management except as provided in the Declaration. A Lake may
not be used for swimming, ice skating, boating, or for any other purpose, except for drainage of the
Property, unless expressly and specifically approved by the Board of Directors in writing and allowed
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by law. Lakes and Lake Areas may 0r may not exist on the Property, and the reference throughout this
Declaration to Lakes and Lake Areas is made in order to address Lakes and Lake Areas, if any, which
now exist or are later constructed upon the Property. The installation on the Property of any Lake or
Lake Area shall be within the sole discretion of the Declarant, and under no circumstances shall the
Declarant be required or obligated to install any Lake or Lake Area. Only the Declarant and the
Association shall have the right to store items or develop recreational facilities upon any Common
Area owned by the Association adjacent to a Lake.
Section 5.23 Mailboxes. Ail mailboxes and posts must be approved by the Committee and,
within each Section of the Development, shalI be standard as to size, location, post, design, height,
material, composition and colors. The builder upon the initial Lot closing to the homeowner shall
install the initial mailbox for each Lot, which meets the above criteria. The Owner agrees to maintain
and paint said mailbox and post in conformance with all other mailboxes.
Section 5.24 Maintenance of Lots and Improvements. Each Owner shall at all times maintain
the Lot and any improvements situated thereon in such a manner as to prevent the lot or improvements
from becoming unsightly and, specifically, such Owner shall:
(A) Mow the Lot at such times as may be reasonably required in order to prevent
the unsightly growth of vegetation and noxious weeds;
(B) Remove all debris or rubbish from the Lot;
(C) Prevent the existence of any other condition that tends to detract from or
diminish the aesthetic appearance of the Property;
(D) Cut down and remove dead trees from the Lot; and,
(E) Within sixty (60) days following completion of a Residence, the Owner shall
landscape the lot in accordance with the provisions set forth in this Declaration, weather
permitting.
Section 5.25 Miscellaneous. No clotheslines may be erected on any Lot.
Section 5.26 Outbuildings and Animal Quarters. Any and all forms of outbuildings, including
but not limited to, sheds, storage sheds, animal quarters, and play houses, which are not directly
connected to the main house on any Lot are prohibited, unless the same are necessary or incident to the
Declarant's, Builder's or Association's business or activities upon the Property. Animal quarters or
kennels which are connected to the Residence must be approved by the Committee.
Section 5.27 Play Equipment. Children's play equipment such as sandboxes, temporary
swimming pools having a depth of eighteen (18) inches or less, swing and slide sets, and trampolines
shall not require approval by the Committee, provided that (i) such equipment is not more than eight
(8) feet high (to the highest point of the structure) and properly painted and maintained by the Owner
in good repair, (ii) such equipment is located in the rear yard of the Lot between the parallel lines
defined by extending the side lines of the residence into the rear yard of the Lot, and (iii) such swing
and slide sets are constructed of wood. Metal swing and slide sets are prohibited. Equipment higher
than eight (8) feet shall require approval of the design, location, color, material and use by the
Committee, and aluminum or metal play equipment is prohibited.
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Section 5.28 Plumbing. Ali plumbing vent stacks are to be located on the rear of the
Residence.
Section 5.29 Sidewalks. Each Residence shall have a continuous 4-foot wide by a minimum
of four (4) inches thick concrete sidewalk adjacent to all interior dedicated street frontage. Sidewalks
shall be installed by the Builder and included in the purchase price of the Residence. If an approved
asphalt bike/walking path is approved on the Property in place of the sidewalk, no additionaI concrete
sidewalk will be required.
Section 5.30 Subsurface Drains and Sump Pump Discharges. Subsurface drains have been
provided in certain areas within drainage easements as additional storm and ground water drainage
sources and are part of the public storm drainage system. Subsurface drain laterals have been provided
on specific Lots, and the Builder on such Lots shall connect all sump pump discharge lines to such
laterals. Ail maintenance and repair of ail sump pump discharge lines and subsurface drain laterals
shall be the responsibility of each Lot Owner in accordance with the following:
(A) The limits of Owner responsibility include all sump pump lines and subsurface
drain laterals between the connection at the sump pump within the home and the connection
with the publicly maintained storm sewer or subsurface drain within the drainage easement.
(B) In cases where subsurface drain laterals are connected along a common
property line before connecting to the storm sewer, maintenance and repair of the common
lateral will be shared equally by the adjacent Owners unless an individual Owner caused the
lateral to be damaged, changed or altered.
(C) Any Owner or Builder damaging, changing, or altering these subsurface drains
and/or common subsurface drain laterals will be held responsible for such action and will be
given ten (10) days notice, by registered mail, to repair said damage, after which time, if no
action is taken, the appropriate jurisdictional agency, Declarant or the Association will cause
said repairs to be accomplished and the invoice for such repairs will be sent to the responsible
Owner(s) and/or Builder(s) for immediate payment. If immediate payment is not received, the
Declarant and/or the Association shall have all the rights and remedies to collect any
outstanding amounts as outlined hereafter in Article XI of this Declaration.
Section 5.31 Swimming Pools and Itot Tubs. Only permanent, in-ground pools with
professional construction, approved by the Committee, shall be permitted upon a Lot. All submittals to
the Committee shall include landscape plans. All backyard pools should be oriented to minimize the
potential effect on neighboring properties. All fencing shall conform to county or municipal regulations
and shall be of harmonious design and subject to Committee approvals. Hot Tubs must also be
approved by the Committee.
Sections 5.32 Tennis Courts, Racquetball Courts, Paddleball Courts, etc. Tennis courts,
racquetball courts, paddle ball courts, basketball courts, squash courts, and other recreational facilities
or sporting facilities will not be permitted without approval from the Committee. All submittals to the
Committee shaI1 include landscape plans. Basketball goals may be installed on a lot adjacent to
driveway without Committee approval provided that they have white fiberglass or translucent
fiberglass or glass backboards. Independent basketball courts may not be constructed on a Lot without
written Committee approval. No basketball goal or backboard shall be permitted to hang from or be
affixed to the Residence or garage. Lighted courts of any kind are prohibited. Temporary or portable
basketball courts wiI1 not be permitted to be Iocated on streets or in cul-de-sacs.
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Section 5.33 Vents. Ali metal and PVC roof or range vents will be painted to blend with roof
color.
Section 5.34 Windows-Doors. If storm doors are installed, they must be painted to match
exterior of the Residence. No unfinished aluminum doors or windows will be allowed.
Section 5.35 Street Signs. Decorative street signs that do not conform to applicable municipal
standards may be installed by Declarant in the Declarant's sole and absolute discretion. Such
decorative street signs shall be maintained by the Association, and shall be repaired or replaced by the
Association if damaged in accordance with applicable rules and regulations of the controlling
municipality. The Association assumes all liability in the installation, maintenance and repair of the
decorative street signs.
Section 5.36 Fuel Tanks. All above or below ground storage tanks, with the exception of gas
storage tanks used solely in connection with gas grills for the purpose of grilling or cooking food, shall
be and hereby are prohibited.
Section 5.37 Garbage and Other Refuse. No Lot Owner in the Development shall bum or
permit the burning out-of-doors of garbage or other refuse, nor shall any such Owner accumulate or
permit the accumulation out-of-doors of such refuse, including compost on his or her Lot.
Section 5.38 Home Occupations. No Lot or Lots shall be used by an Owner, other than a
Builder or Declarant, for any purpose other than as a single-family residence, except that a home
occupation, which satisfies the following definition as well as all requirements of the applicable
Zoning Ordinance, may be permitted: any use conducted entirely within the Residence and participated
in solely by a member of the immediate family residing in said Residence, which use is clearly
incidental and secondary to the use of the Residence for dwelling purposes and does not change the
character thereof and in connection with which there is: a) no sign or display that will indicate from the
exterior that the Residence is being utilized in whole or in part for any purpose other than that of a
dwelling; b) no commodity sold upon the premises; c) no person is employed other than a member of
the immediate family residing in the Residence; and d) no manufacture or assembly operations are
conducted. Provided however, that in no event shall the following or similar activities be conducted or
considered to be a permitted Home Occupation: child day care, barber shop, styling salon, animal
hospital, or any form of animal care or treatment such as dog trimming, or any other similar activities.
The foregoing notwithstanding, the Declarant and Builders shall be permitted to operate sales trailers,
model homes, and sales offices.
Section 5.39 Open Drainage Ditches and Swales. The following shall apply to open ditches
and swales:
(A) Drainage swales (ditches) along dedicated ~oadways and within the right-of-
way, or on dedicated drainage easements, are not to be altered, dug out, filled in, tiled, or
otherwise changed, without the written permmslon of the app~ropnate jurisdictional agency and
the Declarant. Property Owners must maintain these swales as grassways or other non-eroding
surfaces. Any damage to swales or drainage structures must be repaired or replaced by the Lot
Owner.
(B) Any Owner or Builder altering, changing, or damaging these drainage swales
or ditches will be held responsible for such action and will be given ten (10) days notice, by
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registered mail, to repair said damage, after which time, if no action is taken, the appropriate
jurisdictional agency, Declarant or the Association will cause said repairs to be accomplished
and the invoice for such repairs will be sent to the responsible Owners for immediate payment.
If immediate payment is not received by the Association, the Association shall have all the
rights and remedies to collect any outstanding amounts as outlined hereafter in Article XI of
this Declaration.
Section 5.40 Roofing Materials. The roofing materials on all Residences within each Section
of the Development shall be similar in color, and shall be of a quality, style and composition
acceptable to the Declarant during the Development Period and, thereafter, the Committee.
Section 5.41 Solar Panels. No solar panels shall be permitted on any Residence.
Section 5.42 Temporary Structures. No temporary house, trailer, garage or other outbuilding
shall be placed or erected on any Lot, except by Declarant or a Builder.
Section 5.43 Utility Services. Easements for installation and maintenance of utilities and
drainage facilities are reserved as shown on the recorded plat.
Section 5.44 Vehicles Parking. No trucks one (1) ton or larger in size, campers, trailer, motor
homes, boats, snowmobiles, jet ski or similar vehicles shall be parked on any street in the Property.
Any recreational vehicle or trailer, camper, snowmobile, jet ski, or boat shall not be permitted to
remain on any driveway or Lot except within a closed garage and shall not be regularly parked upon
unpaved areas. There shalI be no outside storage of commercial tracks, trailers, boats, junk cars, or fuel
tanks.
Section 5.45 Visual Obstructions. No fence, wall, gate, hedge, tree or shrub planting which
obstructs sight lines and elevations between three (3) and twelve (12) feet above the street shall be
placed or permitted to remain on any corner Lot within the triangular area formed by the street right-
of-way lines and line connecting points twenty-five (25) feet from the intersection of said street lines or
in the case of a rounded property corner, from the intersection of the street right-of-way lines extended.
The same sight-line limitations shall apply to any Lot within ten (10) feet from the intersection of a
street line with the edge of a driveway pavement or alley line. :
Section 5.46 Wclls. Water wells shall not be drilled on any of the Lots except as required to
irrigate common areas.
Section 5.47 Occt~pancy or Residential Use of Partially Completed Residence Prohibited. No
Residence constructed on any Lot shall be occupied or used for residential purposes or human
habitation until a certificate of occupancy has been issued.
Section 5.48 Streets, Sidewalks, and Street Landscaping.
(A) Maintenance. Declarant shall maintain all streets and curbs in good condition
satisfactory for the purpose for which they were constructed until their dedication has been
accepted by the controlling municipality.
(B) Landscaping. Ali landscaping within the street rights-of-way is subject to the
approval of the appropriate governmental authority. Each Owner shall cut all grass and trim all
other landscaping in the rights-of-way adjoining his Lot lines and shall maintain all sidewalks
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in the rights-of-way nearest his Lot lines. Each Owner shall immediately replace any street
trees and lighting required by this Declaration, the Plat, or any other document controlling
maintenance of Lots.
(C) Street Lights and Decorative Street Signs. All street lights and decorative
street signs located within the right-of-way of any street shall be maintained by the
Association.
Section 5.49 Septic Systems. No septic tank, absorption field, or any other on-site sewage
disposal system shall be installed or maintained on any Lot.
ARTICLE VI
ARCH1TECTURALCONTROLS
Section 6.1 Approvals. Approvals, determination, permissions, or consents required herein
shall be deemed given only if they are given in writing and signed, with respect to the Declarant or the
Association, by an officer thereof, and with respect to the Committee, by one (I) member thereof.
Section 6.2 Development Standards and Architectural Control Committee. A Development
Standards and Architectural Control Committee (the "Committee"), composed of at least three (3)
members, shaI1 exist and shall be appointed by the Declarant. Such members shall be subject to
removal by the Declarant at any time, with or without cause. Any vacancies from time to time shall be
filled by appointment of the Declarant. The Declarant may, at its sole option, at any time hereafter,
relinquish for a period of time to the Association the power to appoint and remove one or more
members of the Committee.
Section 6.3 Continuation of Committee. When the Declarant provides written notification to
the Association of discontinuance of this Committee, then the Directors of the Association, or their
designees, shall continue the actions of the Committee with like powers and duties.
Section 6.4 Duties of Committee. '['he Committee shall approve or disapprove proposed
improvements within thirty (30) days after all required information shall have been submitted to it. The
Committee for its permanent files shall retain one copy of submitted material. All notifications to
applicants shall be in writing, and, in the event that such notification is one of disapproval, the
requesting applicant may re-apply with changes. If however, approval has not been received by
applicant in writing within thirty (30) days, then said request shall be considered DENIED.
_Section 6.5 Exercise of Discretion. Declarant intends that the members of the Committee
exercise discretion in the performance of their duties consistent with the provisions hereof, and every
Owner by the purchase of a Lot shall be conclusively presumed to have consented to the exercise of
discretion by such members. In any judicial proceeding challenging a determination by the Committee
and in any action initiated to enforce this Declaration in which an abuse of discretion by the Committee
is raised as defense, abuse of discretion may be established only if a reasonable person, weighing the
evidence and drawing all inferences in favor of the Committee, could only conclude that such
determination constituted an abuse of discretion.
Section 6.6 Inspection. The Committee may inspect work being performed without the
Owner's permission to assure compliance with these restrictions and applicable regulations.
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Section 6.7 Liability of Committee, Declarant, Developer. Neither the Committee nor any
agent thereof, nor the Declarant, or Association shall be liable in any way for any costs, fees, damages,
delays, or any charges or liability whatsoever relating to the approval or disapproval of any plans
submitted to it, nor shall the Committee, Association or Declarant be responsible in any way for any
defects in any plans, specifications or other materials submitted to it, or for any defects in any work
done according thereto. Further, the Committee, Association and/or Declarant make no representation
or warranty as to the suitability or advisability of the design, the engineering, the method of
construction involved, the compliance of proposed plans with laws and zoning ordinances, or the
materials to be used. All parties should seek professional construction advise, engineering, and
inspections on each Lot prior to proposing construction.
Section 6.8 Common Areas Entrances, Street Signs, and Landscap_e Easements. None of the
following shall be installed or constructed ~vithout prior written approval thereof by the Committee: (i)
any and all landscaping, fences, structures, lighting, walking trails, sidewalks, or other improvements
located in any Common Area, landscape maintenance access easement, and/or sign landscape
easement, (ii) any entrance monument or signage identifying the Development or any section thereof
and/or (iii) street signage.
Section 6.9 Lot Improvements. No dwelling, building structure, fence, deck, driveway,
swimming pool, rear yard tennis or basketball courts, or improvement of any type or kind (including
significant landscaping or stacking of wood) shall be constructed or placed on any Lot without the
prior approval of the Committee. Such approval shall be obtained only after the Owner of the Lot
requesting authorization from the Committee bas made written application to the Committee at least
thirty (30) days prior to the proposed construction. Such written application shall be in the manner and
form prescribed from time to t/me by the Committee, and shall by accompanied by two (2) complete
sets of plans and specifications for any such proposed construction or improvement. Such plans shall
include plot plans showing (i) the location of the improvements existing upon the Lot and the location
of the improvement proposed to be constructed or placed upon the Lot, each properly and clearly
designated and (ii) all easements, set backs, and rights-of-way and (iii)'any landscape plans required by
the Committee. Such plans and specifications shall further set forth the color and composition of all
exterior materials proposed to be used and any proposed landscaping, together with any other
materials, photographs, or information, which the Committee may require. All building plans and
drawings required to be submitted to the Committee shall be drawn to a scale of I/4" = 1' and all plot
plans shall be drawn by a professional to a scale of I" = 30', or to such other scale as the Committee
shall deem appropriate. It is also recommended that a certified survey be prepared to insure that a
resident is not encroaching on an adjacent homeowner or in a Common Area. If Owner has encroached
on an adjacent Owner's property or in a common area, the encroaching Owner will, at his or her own
expense, move any fence or other improvement(s) so as to eliminate the encroachment.
Notwithstanding anything to the contrary in the foregoing, upon receipt of any written application
which is in form and content acceptable to the Committee in the Committee's sole and absolute
discretion, the Committee may pm-approve a Builder's plans and specifications for the original
construction of a Residence and, in the event of such pre-approval, the Builder shall then be authorized
to construct the pre-approved Residence on different Lots without further approvals from the
Committee.
No fence or screen of any kind will be permitled if its installation will obstruct necessary site
lines for vehicular traffic. Undue obstruction of view of other amenities from adjoining properties shall
be considered by the Committee when reviewing applications for approval.
Section 6.10 Power of Disapproval. The Committee may refuse to grant permission to
16
construct, place or make the requested improvement with or without cause. Common grounds for
denial include, but are not Iimited to, a lack or absence of the following:
(A) The plans, specifications, drawings or other material submitted must
themselves be adequate and complete, show the proposed improvement, and not be in violation
of this Declaration; and
(B) The design or color scheme of a proposed improvement must be in harmony
with the general surroundings of the Lot or with adjacent buildings or structures.
Section 6.11 Power to Grant Var/ances. The Committee may allow reasonable variances or
adjustments of this Declaration where literal application would result in unnecessary hardship, but any
such variance or adjustment shall be granted in conformity with the general intent and purposes of this
Declaration, no variance or adjustment shall be granted which is materially detrimental or injurious to
other Lots in the Development, and any such variance granted shall not be considered as precedent
setting.
Section 6.12 Statement of Purposes and Powers. Subject to this Declaration and the
restrictions contained herein, the Committee shall regulate the external design, appearance, use,
location and maintenance of lands and improvements thereon in such a manner as to preserve and
enhance values and maintain a harmonious relationship among structures and the natural vegetation
and topography, and in keeping with the intent of the Declarant.
ARTICLE VII
CONTIGUOUS LOTS
Section 7.1 Rules Governin~ Building on Several Contiguous Lots Having One Owner.
Whenever two or more contiguous Lots shall be owned by the same person, and such Owner shall
desire to use two or more of said Lots as a site for a single-dwelling house, such Owner must apply in
writing to the Committee for permission to so use said Lots. If permission for such a use shall be
granted, the Lots constituting the site for such single-dwelling house shall be treated as a single Lot for
the purpose of applying this Declaration to said Lots, so long as the Lots remain improved with one
single-dwelling house. In addition, the Owner must obtain all requisite and necessary permits and
approvals from the municipality having zoning jurisdiction over the Property.
ARTICLE VIII
USE AND OWNERSHIP OF COMMON AREA
Section 8.1 Ownership. A license upon such terms, conditions, rules and regulations as the
Declarant, and successor, assigns or licensees of the Declarant, shall from time to time grant, for the
use and enjoyment of the Common Area, is granted to the persons who are from time to time members
of the Association; provided, however, that no residential development shall occur in the Common
Area. Every Owner shall have a nonexclusive right and easement of enjoyment in common with all
other Owners, in and to the Common Areas which nonexclusive right and easement of enjoyment shall
be appurtenant to and pass with the title to every Lot; provided, however, that any area identified on a
Plat as a Limited Common Area shall be for the exclusive use and benefit of Owners whose Lots abut
the Limited Common Area, subject to (i) the right of the Association to perform and undertake
maintenance of the Limited Common Area and (ii) all easements granted in this Declaration. The
17
Common Areas shall be conveyed by quitclaim deed to the Association. Such conveyance shall be
deemed to have been accepted by the Association and those persons who shall from time to time be
members thereof upon the recording of a deed or deeds conveying such Common Areato the
Association.
Section 8.2 Use. Common Area shall be used for such purposes as deemed appropriate by the
Declarant until the end of the Development Period. Following the end the Development Period, the
Common Area shall be used for such purposes as deemed appropriate by the Association. Any
Common Area depicted on the recorded plats of the Development or designated by the Declarant as a
Common Area shall remain for the exclusive use of the Owner(s), and their family members, guests,
tenants, or contract purchaser who reside on the Lot(s). Neither the Declarant's execution or recording
of the plats nor the doing of any other act by the Declarant is, or is intended to be, or shall be construed
as, a dedication to the public of the Common Area.
ARTICLE IX
HEATHER KNOLL HOMEOWNERS ASSOCIATION, INC.
Section 9.1 Association Duties. The duties of the Association shall include the following: (i)
the promotion of the recreation, health, safety, and welfare of the residents in the property, (ii) the
maintenance and repair of the Common Area including, but not limited to, any and all lighting,
landscaping, pools, amenity areas, the Trail System, and sidewalks located thereon, (ii/) the
maintenance and repair of any and all entrance monuments and signage, and the landscaping
surrounding such entrances monuments and signage, (iv) maintenance and repair of all street signage,
street lighting, and ail improvements and landscaping existing in any landscape maintenance access
easement and/or any sign landscape easement, (v) the performance of any other obligations and duties
of the Association specified herein.
Section 9.2 Board of Directors. The Owners shall elect a Board of Directors of the Association
as prescribed by the Association's Articles and Bylaws. The Board of Directors shall manage the affairs
of the Association. Directors need not be members of the Association.
Section 9.3 Classes of Membership and Voting Rights_. The Association shall have the
following two classes of voting membership:
(A) Class A. Class A members shall be all Owners with the exception of the
Declarant. Class A members shall be entitled to one (1) vote for each Lot owned. When more
than one person holds an interest in any Lot, ali such persons shall be members. The vote for
such Lot shall be exercised as the members holding an interest in such Lot determine among
themselves, but in no event shall more than one vote be cast with respect to any Lot.
(B) Class B. The Class B member shall be the Declarant. The Declarant shall be
entitled to five (5) votes for each Lot owned. For purposes of this calculation, it shall be
assumed that Declarant owns all Lots, which number shall be reduced as !.ots are conveyed by
the Declarant to an Owner. The Class B membership shall cease and be converted to Class A
membership on the happening of either of the following events, whichever occurs earlier
(hereafter "Effective Date"):
(i) December 31,2020; or
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(ii) When the total number of votes outstanding in the Class A
Membership is equal to the total number of votes outstanding in the Class B
Membership; provided, however, that the Class B Membership shall recommence in
the event that the Declarant records a plat of part of or all of the Additional Real Estate
and, by virtue thereof, total number of votes outstanding in the Class A Membership is
no longer equal to the total number of votes outstanding in the Class B Membership;
or
(iii) when the Declarant executes and records, with the Recorder's Office,
a written instrument by which the Declarant terminates the Class B membership.
Section 9.4 Membership. Initially, the person(s) who serve as incorporator(s) of the
Association shall be the member(s) (the "Initial Member(s)"). The Initial Member(s) shall remain
member(s) of the Association until the Association Articles of Incorporation are accepted by the
Indiana Secretary of State, at which time the Initial Member(s) shall cease to be member(s) unless they
also qualify as Class A or Class B members. Every Owner of a Lot which is subject to assessment shall
be a member of the Association. Apart from the Initial Member(s), a membership in the Association
shall be appurtenant to and may not be separated from ownership of any Lot.
Section 9.5 Professional Management. No contract or agreement for professional management
of the Association, nor any other contract between Declarant and the Association, shall be for a term in
excess of three (3) years. Any such agreement or contract shall provide for termination by either party
with or without cause and without payment of any termination fee upon written notice of ninety (90)
days or less. The Association shall at all times be managed by a professional management company.
Section 9.6 Limitations on Rights of the Association. As long as there is a Class B Member,
the Association may not use its resources, nor take a public position in opposition to future phases of
Heather Knoll proposed by the Declarant or changes to current phases of proposed by the Declarant.
Nothing in this paragraph shall be construed to limit the rights of the members acting as individuals or
in affiliation with other members or groups as long as they do not employ the resources of the
Association or identify themselves as acting in the name, or on the behalf of the Association.
ARTICLE X
ASSESSMENTS
Section 10.1 Creation of Lien and Personal Obligation of Assessments. Each Owner of any
Lot, except the Declarant and any Builder, by acceptance of a deed therefore, whether or not it shall be
so expressed in such deed, is deemed to covenant and agree to pay to the Association the following:
(A) Annual Assessments (hereafter defined);
(B) One-Time Assessment (hereafter defined);
(C) Special Assessments (hereafter defined) for costs of enforcement of the
Declaration, capital improvements and operating deficits, copies of Association documents if
requested by a member, and such assessments to be established and collected as hereinafter
provided or established by the Board; and
(D) Violation Assessments (hereafter defined) levied for a violation of this
Declaration.
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Section 10.2 Annual Budget. By major/ty vote of the Board of Directors, the Board of
Directors shall adopt an annual budget for the subsequent fiscal year, which shall provide for the
allocation of expenses in such a manner that the obligations imposed by the Declaration and all
Supplemental Declarations can effectively be met.
Section 10.3 Annual Assessment.
(A) Amount. The Annual Assessment provided for herein shall be per calendar
year and shall commence for each Lot on the date of closing of the sale of a Lot to an Owner
other than Declarant or a Builder. The Annual Assessment, commencing during the calendar
year in which the first Lot is conveyed to an Owner other than the Declarant or a builder, shall
be Six Hundred Dollars ($600.00) per year. The Annual Assessment for the calendar year
shall be pro-rated to year-end. The Board of Directors shall fix any increase in the amount of
the Annual Assessment at least thirty (30) days in advance of the effective date of such
increase. The initial due date for annual assessments shall be January Ist of each calendar
year, and such assessment shall be subject to collection and late charges beginning on
January 31 st of each calendar year.
(B) Purpose of Assessments. The annual assessment levied by the Association
shalI be used in the reasonable discretion of the Board of Directors to fulfill the duties and
obligations of the Association specified in this Declaration.
(C) Method of Assessment. By a vote ora majority of the Board of Directors, the
Board of Directors shall, on the basis specified in Section 10.7 below, fix the Annual
Assessment for each assessment year at an amount sufficient to meet the obligations imposed
by this Declaration upon the Association. The Board during any calendar year shall be
entitled to increase the Annual Assessment for that year if it should determine that the
estimate or current assessment is insufficient for that year, provided that the Board shall give
at least thirty (30) days advance notice thereof to the Owners. The Board of Directors shall
establish the date(s) the Annual Assessment shall become due, and the manner in which it
shall be paid.
Section 10.4 One-time Assessment. Upon (i) the closing of the initial conveyance of each
Lot by Declarant to an Owner other than a Builder, or (ii) the sale of each Lot by a Builder (either by
deed or by installment sale, conditional sale or land-contract sale), the purchaser of such Lot shall
pay to the Association, in addition to any other amounts then owed or due to the Association, as a
contribution to its working capital and start-up fund, an amount of Two Hundred Fifty Dollars
($250.00) against such Lot, which payment shall be non-refundable and shall not be considered as an
advance payment of any assessment or other charge owed the Association with respect to such Lot.
Such working capital and start-up fund shall be held and used by the Association for payment of, or
reimbursement to Declarant for advances made to pay, expenses of the Association for its early period
of operation of the Development, to enable the Association to have cash available to meet unforeseen
expenditures, or to acquire additional equipment or services deemed necessary by the Board.
Section 10.5 Special Assessment. In addition to such other Special Assessments as may be
authorized herein, the Board of Directors may levy in any year a Special Assessment(s) for the purpose
of enforcing these covenants and restrictions, for legal expenses, for collection expenses, other activity
that is the responsibility of an Owner hereunder but which such Owner has not undertaken as
required hereunder, for defraying, in whole or in part, the cost of any construction, reconstruction,
repair or replacement of any capital improvement which the Association is required to maintain
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and/or for operating deficits which the Association may from time to time incur, provided that any
such assessment shall have the assent of a majority or the votes of the members who are voting in
person or by proxy at a meeting duly called for this purpose.
Section 10.6 Violation Assessment. In addition to all other assessments as be authorized
herein, the Board of Directors may levy a Violation Assessment to an Owner, (i) for a violation
against this Declaration or (ii) for damages if any portion of the Common Area that the Association
is obligated to maintain, repair and/or replace is damaged due to the willful or negligent act or
omission of such Owner or Owner's guest or invitee. In the event of such damage, the Board shall
have the right to undertake the necessary maintenance, repair or replacement. The choice between
repair or replacement is in the sole discretion of the Board.
Section 10.7 Basis for Assessment.
(A) Lots Generally. Each Lot owned by a person other than Declarant or a Builder
shall be assessed at a uniform rate without regard to whether a Residence has been constructed
upon the Lot.
(B) Lots Owned by Declarant or Builder. Declarant and any Builder shall not pay
the Annual Assessment and Special Assessment so long as any Residence constructed upon a
Lot by Declarant or a Builder has not been either conveyed to an Owner intending to occupy or
rent said Residence as a residence or leased to an individual or an entity for use as a Residence.
Section 10.8 Notice and Due Date. Written notice of special assessments and such other
assessment notices as the Board of Directors shall deem appropriate shall be delivered to every Owner
subject thereto. The due dates for all assessments shall be established by the Board of Directors.
Section 10.9 Collection. Ail Assessments, together with interest thereon, attomeys fees, and
other costs of collection thereof, shall be a charge on the land and shall be a continuing lien upon the
Lot against which each Assessment is made until paid in full. Each Assessment, together with interest
thereon and costs of collection thereof, including reasonable attorney fees, shall also be the personal
obligation of the Person who was the Owner of the Lot at the time when the Assessment became due.
Section 10.10 Effect of Nonpayment of Assessments; Remedies of the Association. Any
assessment not paid within thirty (30) days after the due date shall bear interest from the due date at
twelve percent (I2%) per annum plus a late charge not exceeding Fifty Dollars ($50.00). The
Association shall be entitled to initiate any lawful action to collect delinquent assessments plus any
expenses or costs, including attorneys' fees, incurred by the Association in collecting such
assessment(s). If the Association has provided for collection of any assessment in installments, upon
default in the payment of any one or more installments, the Association may accelerate payment and
declare the entire balance of said assessment due and payable in full. No Owner may waive or
otherwise avoid liability for the assessment provided for herein by non-use of the Common Area or
abandonment of his Lot.
Section 10.11 Suspension of Privileges of Membership. Notwithstanding any other provision
contained herein, the Board of Directors shall have the right to suspend the voting rights, if any, and
the services to be provided by the Association, together with the right to use the Common Areas of any
member:
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(A) for any period during which any of the assessments or any fines/fees assessed
under this Declaration owed by such member remains unpaid;
(B) during the period of any continuing violation of this Declaration; and
(C) during the period of any violation of the Articles of Incorporation, By-Laws,
or regulations of the Association.
Section I0.12 Certificates. The Association shall, upon reasonable request by an Owner, at any
time, furnish a letter in writing signed by an officer of the Association, indicating the accounting status
of assessments on a Lot showing the balance due the Association, if any.
Section 10.13 Subordination of the Lien to Mortgages. The lien of the assessments provided
for herein against a Lot shall be subordinate to the lien of any recorded first mortgage covering such
Lot and to any valid tax or special assessment lien on such Lot in favor of any governmental taxing or
assessing authority. Sale or transfer of any Lot shall not affect the lien of assessments levied under this
Article X. The sale or transfer of any Lot pursuant to mortgage foreclosure or any proceeding in lieu
thereof shall, however, extinguish the lien of such assessments which became due or are attributable to
the period of time prior to such sale or transfer. No sale transfer shall relieve such Lot from liability for
any assessments thereafter becoming due or from the lien thereof.
ARTICLE XI
REMEDIES
Section 11.1 Delay or Failure to Enforce. No delay or failure on the part of any aggrieved party
to invoke any available remedy with respect to a violation of any one or more of covenants, conditions,
and restrictions in this Declaration shall be held to be a waiver by that party or an estoppel of that party
of any right available to such party upon the occurrence, reoccurrence or continuation of such violation
or violations of this Declaration.
Section 11.2 In General. The Association or any party to whose benefit this Declaration inures,
including the Declarant and/or any Owner, may proceed at law or in equity to prevent the occurrence
or continuation of any violation of these Restrictions, or to compel compliance with these Restrictions
and Covenants, and shall be entitled to recover costs of collection and reasonable attorney's fees;
however, neither the Declarant, nor the Association, shall be liable for damages of any kind to any
person for failing either to abide by, enforce, or carry out any terms, conditions, or restrictions
contained in this Declaration.
ARTICLE XII
EFFECT ON BECOMING AN OWNER
Section 12.1 The Owner(s) of any Lot subject to this Declaration, by acceptance of a deed
conveying title thereto, or by virtue of the execution of a contract for the purchase thereof, whether
from Declarant, a Builder, or a subsequent Owner of such Lot, shall accept such deed and execute such
contract subject to each and every covenant, condition, and restrictions contained in this Declaration.
By acceptance of such deed or execution of such contract each Owner acknowledges the rights and
powers of the Declarant, Committee, and Association contained in this Declaration, and also, for
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themselves, their heirs, personal representatives, successors and assigns, such Owner(s) covenant and
agree and consent to and with the Declarant, Committee and the Association and to and with the other
Owners and subsequent Owners of each of the Lots affected by this Declaration to keep, observe,
comply with and perform such covenants, conditions, and restrictions contained in this Declaration.
ARTICLE XIII
TITLES
Section 13.1 The titles preceding the various Sections and paragraphs of this Declaration are
for convenience of reference only and none of them shall be used as an aid to the construction of any
provisions of this Declaration. Wherever and whenever applicable, the singular form of any word shall
be taken to mean or apply to the plural, and the masculine form shall by taken to mean or apply to the
feminine or to the neuter.
ARTICLE XIV
SEVERABILITY
Section I4.1 Invalidation of anyone of the covenants, restrictions or provisions contained in
this Declaration by judgment or court order shall not in any way affect any of the other provisions
hereof, which shall remain in full force and effect. No delay or failure by any person to enforce any of
the restrictions or to invoke any available remedy with respect to a violation or violations thereof shall
under any circumstances be deemed or held to be a waiver by that person of the fight to do so
thereafter, or as estoppel of that person to assert any right available to him upon the occurrence,
recurrence or continuation of any violation or violations of the restrictions.
ARTICLE XV
DECLARANT'S RIGHTS
Section 15.1 Any and ail of the fights and obligations of the Declarant set forth in this
Declaration may be transferred, in whole or in part, to other persons or entities, provided that the
transfer shall not reduce an obligation nor enlarge a right beyond that contained in this Declaration. No
such transfer shall be effective unless it is in a written instrument signed by the Declarant and duly
recorded with the Recorder of Itamilton County, Indiana.
Section 15.2 Nothing in this Declaration shall be construed in a manner that limits or restricts
the Declarant and/or any Builders in their development of the Property and construction of residences
thereon. Therefore, notwithstanding anything herein to the contrary, the Declarant and/or any Builders
authorized by Declarant may maintain and carry upon portion of the Common Area, and other portions
of the Property and Lots owned by the Declarant, such facilities and activities as, in the sole opinion of
the Declarant, may be reasonably required, convenient, or incidental to the construction or sale of
Residences including, but not limited to, business offices, signs, model units, sales offices, and sales
trailers.
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ARTICLE XVI
AMENDMENT TO THIS DECLARATION
Section 16.1 This Declaration and the covenants, conditions and restrictions set forth in this
Declaration, as from time to time amended in the manner hereafter set forth, shall run with the land and
shall be binding upon the persons owning any portion of the Property and all parties closing under
them. This Declaration may be amended or modified at any time by an instrument recorded in the
Office of the Recorder of Hamilton County, Indiana, approved and signed by at least seventy-five
percent (75%) of the then Owners. Provided, however, that none of the rights or duties of Declarant
reserved or set out hereunder may be amended or changed without Declarant's prior written approval.
Except as prohibited below, this Declaration may aisc be amended by Declarant, if it then has any
ownership interest in the Property, at any time within five (5) years after the recordation hereof. Any
amendment must be recorded. Neither the Association, the Owners or Declarant shall effect any of the
following changes without the prior written approval of two-thirds (b) of the Owners of Lots
(excluding Declarant or Builder):
(A) By act or omission seek to abandon, partition, subdivide, encumber, sell or
transfer the Common Area owned directly or indirectly by the Association for the benefit of
the Owners. The granting of easements for public utilities or other public purposes consistent
with the intended use of the Common Area owned by the Association by the Dwelling Unit
Owners is not a transfer in the meaning of this clause;
(B) Fail to maintain fire and extended covcrage on insurable Common Area owned
by the Association on a current replacement cost basis in an amount at least one hundred
percent (100%) of the insurable value (based on current replacement costs);
(C) Use hazard insurance proceeds for losses to any Common Area owned by the
Association for other than the repair, replacement, or reconstruction of the Common Area
owned by the Association.
IN TESTIMONY WHEREOF, witness the signature of the Declarant of this Declaration as of the date
first above written.
DECLAILANT:
PPV, LLC, an Indiana limited liability company
BY:
PLATINUM PROPERTIES, LLC,
An Indiana limited liability company,
Manager
By: ~ ~
Steven R. Edward~ ~'ice President
and Chief Financial Officer
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STATE OF INDIANA )
) SS:
COUNTY OF )
Before me, a Notary Public, in and for said County and State, personally appeared Steven R.
Edwards, Vice President and Chief Financial Officer of Platinum Properties, LLC, an Indiana limited
liability company, Manager of PPV, LLC, an Indiana limited liability company, as the Declarant
herein, and aclmowledged the execution of the foregoing Declaration of Covenants, Conditions, and
Restrictions of Heather Knoll this ~ day of '~/~_ ~,/~,~2g, t" , 2004.
My Commission Expires:
Not arykPlfbli'~v'~ ~/ .... ~.,
Resident of County, Indiana Printed:
~(~PUBLIC STATE OF INDIANA
HAMILTON COUNTY
COMMI~ION EXP. MAR. 21,~0(~
This Instrument Prepared by: Charles D. Frankenberger, Nelson & Frankenberger, 3105 E. 98th
Street, Suite 170, Indianapolis, IN 46280 - (317) 844-0106.
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EXHIBIT "A"
LAND DESCRIPTION
A part of the Northeast Quarter and the Northwest Quarter of Section 20, Township 18 North,
Range 3 East, Clay Township, Hamilton County, Indiana, more particularly described as
follows:
Beginning at the Southwest comer of said Northeast Quarter Section; thence North 89 degrees
32 minutes 44 seconds East along the South line of said Quarter Section 503.70 feet; thence
North 00 degrees 05 minutes 16 seconds West 348.50 feet; thence North 89 degrees 32
minutes 44 seconds East parallel to the South line of said Quarter Section 125.00 feet; thence
South 00 degrees 05 minutes 16 seconds East 348.50 feet to the South line of said Northeast
Quarter; thence North 89 degrees 32 minutes 44 seconds East along said South line 702.41
feet; thence North 00 degrees 07 minutes 54 seconds West 2,319.27 feet; thence South 89
degrees 30 minutes 49 seconds West parallel to the North line of said Northeast Quarter
557.90 feet; thence North 00 degrees 07 minutes 54 seconds West 18.23 feet; thence South 89
degrees 30 minutes 49 seconds West parallel to the North line of said Northeast Quarter
766.19 feet to the East line of said Northwest Quarter Section; thence North 00 degrees 02
minutes 26 seconds East along said East line 294.08 feet to the Northeast comer of said
Quarter Section; thence South 89 degrees 35 minutes 20 seconds West along the North line of
said Quarter Section 231.81 feet; thence South 00 degrees 02 minutes 26 seconds West
parallel to the East line of said Quarter Section 1,315.35 feet; thence North 89 degrees 36
minutes 39 seconds East 231.81 feet to the East line of said Quarter Section; thence South 00
degrees 02 minutes 26 seconds West along said South line 1,315.44 feet to the place of
beginning, containing 76.994 acres, more or less.
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EXHIBIT "B"
LAND DESCRIPTION
Any parcel of real estate which does not exceed fifly (50) acres in size and which is adjacent to the
Real Estate described in Exhibit "A" to the Declaration of Covenants, Conditions, and Restrictions of
Heather Knoll to which this Exhibit "B" is also attached.
H:Uancl\Platinum\Healher KnolI\CCRs 112904 doc
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