HomeMy WebLinkAboutCovenants and Restrictions RECORDEDDECLARATION OF COVENANTS AND RESTRICTIONS
VILLAGE OF TOWNE POINTE
CARMEL, INDIANA 200400062770
Filed
HAMILTON COUNTY, in
JENNIFER J HAYDEN
09 -08 -2004 At 02 :04 pm.
DEC COV RES 84.00
Recorded 2004
Instrument No. 20o y O0O 1O?L/
Office of the Recorder of Hamilton County
DECLARATION OF COVENANTS AND RESTRICTIONS
FOR VILLAGE OF TOWNE POINTE
This Declaration, made as the ON day of 2004, by LandLink
Development, LLC an Indiana limited liability company "Declarant
WITNES SETH:
WHEREAS, the following facts are true:
A. Declarant is the owner of the real estate located in Hamilton County,
Indiana, described in Exhibit A and depicted on Exhibit B, upon which Declarant intends,
but is not obligated, to develop a residential community to be known as Village of Towne
Pointe.
B. Declarant intends, but is not obligated, to develop within the Village of
Towne Pointe a residential subdivision to be known as Towne Pointe.
C. Declarant intends, but is not obligated, to construct certain improvements
and amenities in Towne Pointe which shall constitute Community Area.
D. Declarant desires to provide for the preservation and enhancement of the
property values, amenities and opportunities in Towne Pointe and for the maintenance of
the Tract and the improvements thereon, and to this end desires to subject the Tract
together with such additions as may hereafter be made thereto (as provided in Paragraph
3) to the covenants, restrictions, easement, charges and liens hereinafter set forth, each of
which is for the benefit of the Lots and lands in the Tract and the future owners thereof.
E. Declarant deems it desirable, for the efficient preservation of the values
and amenities in Towne Pointe, to create an agency to which may be delegated and
assigned the owners of owning, maintaining and administering the Community Area,
administering and enforcing the Restrictions, collecting and disbursing the Assessments
and charges hereinafter created, and promoting the recreation, health, safety and welfare
of the Owners of Lots in Towne Pointe.
F. Declarant has incorporated under the laws of the State of Indiana a not
for- profit corporation known as Towne Pointe Homeowners Association, Inc. for the
purpose of exercising such functions.
NOW, THEREFORE, Declarant hereby declares that all of the Lots and lands in
the Tract and such additions thereto as may here after be made pursuant to Paragraph 3
hereof, 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 the in furtherance of a plan for the improvement and sale of Lots in
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the Tract, and are established and agreed upon for the purposes of enhancing and
protecting the value, desirability and attractiveness of the Tract as a whole and of each of
Residences, Lots and lands situated therein. The Restrictions shall run with the land and
shall be binding upon Declarant, its successors and assigns, and upon the parties having
or acquiring any interest in the Tract or any part or parts thereof subject to such
Restrictions, and shall inure to the benefit of Declarant and its successors in title to the
Tract or any part or parts thereof.
1. Definitions. The following terms, as used in this Declaration, unless the
context clearly requires otherwise, shall mean the following:
"Annlicable Date" means the earlier of (i) the date when all Lots in the
Development Area have been improved by the construction thereon of Residences
or (ii) December 31, 2014.
"Architectural Control Assessment" means the assessment levied by the
Corporation pursuant to Paragraph 13(e).
"Architectural Review Board" means that entity established pursuant to
Paragraph 14 of this Declaration for the purposes therein stated.
"Articles" means the Articles of Incorporation of the Corporation, as
amended from time to time.
"Assessments" means all sums lawfully assessed against the Members of
the Corporation or as declared by this Declaration, any Supplemental Declaration,
the Articles or the By -Laws.
"Village of Towne Pointe" means that part of Towne Ponte so designated
on the General Plan of Development, Secondary Plat as filed with the Hamilton
County Recorder.
"Berm" means the dirt mound along Towne Road and 131st Street as
depicted on a Plat, if any.
"Board of Directors" means the governing body of the corporation
elected by the Members in accordance with the By -Laws.
"B La ws" means the Code of By -Laws of the Corporation, as amended
from time to time.
"Community Area" means (i) the Dry Retention Basin, (ii) the Entry
Ways,(iii) the Berm, (iv) the Commons, (v) the Drainage System, (vi) the Paths,
(vii) any utility service lines or facilities not maintained by a public utility
company or governmental agency that are located on, over or below or through
more than one Section, and (viii) any areas of land (1) shown on any Plat, (2)
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described in any recorded instrument prepared by Declarant or its agents, or (3)
conveyed to or acquired by the Corporation, together with all improvements
thereto, that are intended to be devoted to the use or enjoyment of some, but not
necessarily all, of the Owners of Lots.
"Community Area Access Easement" means the area designated on the
Secondary Plat as a means of access to a Community Area.
"Community Area Initial Assessment" means the initial assessment for
the Reserve for Replacements required by Paragraph 13(c).
"Commons" means land denoted on the Secondary Plat as "Commons" or
land designated as "Commons" in any recorded instrument executed by
Declarant.
"Corporation" means Towne Pointe Homeowners Association, Inc., an
Indiana nonprofit corporation, its successors and assigns.
"Declarant" means LandLink Development, LLC, its successors and
assigns to its interest in the Tract other than Owners purchasing Lots or
Residences by deed from Declarant (unless the conveyance indicated an intent
that the grantee assume the rights and obligations ofDeclarant).
"Development Area" means the land described in Exhibit A, the
Secondary Plat together with any additional land added to the Tract pursuant to
Paragraph 3 of this Declaration.
"Drainage Board" means the Hamilton County, Indiana Drainage Board,
its successors or assigns.
"Drainage System" means the open drainage ditches and swales, the
subsurface drainage tiles, pipes and structures, the dry and wet retention and/or
detention ponds, and the other structures, fixtures, properties, equipment and
facilities including the dry retention basin located in the tract and designed for
the purpose of controlling, retaining or expediting the drainage of surface and
subsurface waters from, over and across the Tract, including but not limited to
those shown or referred to on the Secondary Plat, all or part of which may be
established as legal drains subject to the jurisdiction of the Drainage Board
"Entry Ways" means the structures constructed as an entrance to
TOWNE Pointe or a party thereof (exclusive of the street pavement, curbs and
drainage structures of the street pavement, curbs and drainage structure and tiles),
the traffic islands depicted as a designated Block on a Plat and any other traffic
islands dividing a roadway providing access to Towne Pointe or a part thereof,
and the grassy area surrounding such structures.
"General Plan of Development" means that plan prepared by Declarant
and approved, if necessary, by appropriate public agencies that outlines the total
scheme of development and general uses of land in the Development Area, as
such may be amended from time to time.
"Landscape Easement" means a portion of a Lot denoted on a Plat as an
area to be landscaped and maintained by the Corporation.
"Lot" means a platted lot as shown on the Secondary Plat.
"Lot Development Plan" means (i) a site plan prepared by a licensed
engineer or architect, (ii) foundation plan and proposed finished floor elevations,
(iii) building plans, including elevation and floor plans, (iv) material plans and
specifications, (v) landscaping plan, and (vi) all other data or information that the
Architectural Review Board may request with respect tot he improvement or
alteration of a Lot (including but not limited to the landscaping thereof) or the
construction or alteration of a Residence or other structure or improvement
thereon.
"Maintenance Costs" means all of the costs necessary to keep the
facilities to which the term applies operational and in good condition, including
but not limited to the cost of all upkeep, maintenance, repair, replacement of all or
any part of any such facility, payment of all insurance with respect hereto, all
taxes imposed on the facility and on the underlying land, leasehold, easement or
right -of -way, and any other expenses related tot he continuous maintenance,
operation or improvement of the facility.
"Member" means a member of the Corporation and "Members" means all
members of the Corporation.
"Mortgagee" means the holder of a first mortgage on a Residence.
"Owner" means a Person, including Declarant, who at the time has or is
acquiring any interest in a Lot except a Person who has or is acquiring such an
interest merely as security for the performance of an obligation.
"Part of the Development Area" means any part of the Development
Area not included in the Tract such as Richey's Roost, Block B and the Hudson
Property, Block A..
"Parcel" means the Village of Towne Pointe and any other platted
subdivision within the Development Area that is subject to the same
Supplemental Declaration or is declared by Declarant to constitute a "Parcel"
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"Paths" means those walkways installed pursuant to Paragraph 9 and such
other real estate or interest therein as is conveyed or granted tot he Corporation
for the purpose of being used for walkways.
"Path Lights" means the light standards, conduits, wiring, bulbs and
other appurtenances installed to illuminate the Paths.
"Person" means an individual, firm, corporation, Limited Liability
Company, association, trust or other legal entity, or any combination thereof
"Secondary Plat" means a final secondary plat of a portion of the
Development Area recorded in the Office of the Recorder of Hamilton County,
Indiana.
"Reserve for Replacements" means a fund established and maintained
by the corporation to meet the cost of periodic maintenance, repairs, renewal and
replacement of the Community Area.
"Residence" means a structure intended exclusively for occupancy by a
single family together with all appurtenances thereto, including private garage and
outbuildings and recreational facilities usual and incidental to the use of a single
family residential lot.
"Restrictions" means the covenants, conditions, easement, charges, liens,
restrictions, rules and regulations and all other provisions set forth in this
Declaration, all applicable Supplemental Declarations and the Register of
Regulations, as the same may from time to time be amended.
"Register of Regulations" means the document containing rules,
regulations, policies, and procedures adopted by the Board of Directors or the
Architectural Review Board, as the same may from time to time be amended.
"Section" means that portion of the development Area that is depicted on
a Plat.
"Supplemental Declaration" means the Supplemental Declarations of
Covenants and Restrictions for Village of Towne Pointe and any Plat or other
supplementary declaration of covenants, conditions or restrictions which may be
recorded and which extends the provisions of this Declaration or any previously
recorded Supplemental Declaration to a Section and contains such complementary
or supplementary provisions for such Section as are required or permitted by this
Declaration.
"Tract" means the land described in Exhibit C Registered Survey of the
real estate and such other real estate as may from time to time be annexed thereto
under the provisions of Paragraph 3 hereof
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"Zoning Authority" with respect to any action means the director of the
Department of Community Development of the City of Carmel or, where he lacks
the capacity to take action, or fails to take such action, the governmental body or
bodies, administrative or judicial, in which authority is vested under applicable
law to hear appeals from, or review the action, or the failure to act, of the
Director.
2. Declaration. Declarant hereby expressly declares that the Tract and any
additions thereto pursuant to Paragraph 3 hereof shall be held, transferred, and occupied
subject to the Restrictions. The Owner of any Lot subject to these Restrictions, by (i)
acceptance of a deed conveying title thereto, or the execution of a contract for the
purchase thereof, whether from Declarant or a subsequent Owner of such Lot, or (ii) by
the act of occupancy of any Lot, shall accept such deed and execute such contract subject
to each Restriction and agreement herein contained. By acceptance of such deed or
execution of such contract, each Owner acknowledges the rights and powers of Declarant
and of the Corporation with respect to these Restrictions, and also for itself, its heirs,
personal representatives, successors and assigns, covenants, agrees and consents to and
with Declarant, the corporation, and the Owners and subsequent Owners of each of the
lots affected by these Restrictions to keep, observe, comply with and perform such
Restrictions and agreement.
3 Additions to the Tract. Declarant shall have the right to bring within
the scheme of this declaration and add to the Tract real estate that is a Part of the
Development Area or that is contiguous to the Development Area. In determining
contiguity, public rights of way shall not be considered.
The additions authorized under this Paragraph 3 shall be made by the filing of
record of one or more Supplemental Declarations with respect to the additional real estate
and by filing with the Corporation any revisions to the General Plan of Development
necessary to reflect the scheme of development of the additional real estate Unless
otherwise stated therein, such revisions to the General Plan of development shall not bind
Declarant to make the proposed additions. For purposes of this Paragraph 3, a Plat
depicting a portion of the Development Area shall be deemed a Supplement Declaration.
4. (INTENTIONA i EFT BLA
5 The Co_ Declarant shall convey title to the Commons
to the Corporation. The Corporation shall be responsible for maintaining the
Commons and the Maintenance Costs thereof shall be assessed as a General
assessment against all Lots subject to assessment. Except for underground utility
facilities, no permanent improvements shall be made to or installed on the
Commons other than the lighting, seating, walkways, plantings structures and
fountains or other recreational features. The use of the Commons shall be
subject to rules and regulations adopted by the Board of Directors which is not
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inconsistent with the provisions of this Declaration or any Supplemental
Declaration.
6. [INTENTIONALLY LEFT BLANK[
7. [INTENTIONALLY LEFT BLANK(
8. Drainage System. The Drainage System has or will be constructed for
the purpose of controlling draining within and adjacent to the Development Area and
maintaining the water level in the subdivision. The Corporation shall maintain the
Draining System to the extent not maintained by the Drainage Board and the maintenance
Costs thereof shall be assessed against all Lots subject to assessment serviced by that part
of the Drainage System with respect to which Maintenance Costs are incurred. Each
Owner shall be individually liable for the cost of maintenance of any drainage system
located entirely upon his Lot which is devoted exclusively to drainage of his Lot and is
not maintained by the Drainage Board.
9. Paths and Path Li hts. Declarant may, but is not obligated to;
install the Paths and Path Lights at the approximate locations depicted on the General
Plan of Development and may reserve easements for such purpose over and across Lots
If installed, the Corporation shall operate and maintain the Paths and Path Lights and the
Maintenance Costs thereof shall be assessed as a General Assessment against all Lots
subject to assessment. The Board of Directors may adopt such rules and regulations with
respect to the use thereof as it may deem appropriate including but not limited to the
prohibition of the use of the Paths by bicycles, skateboards and motorized or non
motorized vehicles.
10. [INTENTIONALLY LEFT BLANK]
11. Maintenance of Ent Wa s and Landsca a Easement. The
Corporation shall maintain the Entry Ways and the Landscape Easements and all
improvements and plantings thereon, and the Maintenance Costs thereof shall be assessed
as a General Assessment against all Lots subject to assessment. Grass, trees, shrubs and
other plantings located on an Entry Way or a Landscape Easement shall be kept neatly
c,ut, cultivated or trimmed as reasonably required to maintain an attractive entrance to
TOWNE Pointe or a part hereof or a planting area within TOWNE Pointe. All entrance
signs, walls and features located on an Entry Way shall be maintained at all times in good
and sightly condition appropriate to a first -class residential subdivision.
12. Towne Pointe Homeowners Association Inc.
(a) Member shin. Each Owner shall automatically be a
Member and s all enjoy the privileges and be bound by the obligations
contained in the Articles and By -Laws. If a person would realize upon his
security and become an Owner, he shall be subject to all the requirements
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and limitations imposed by this Declaration on other Owners, including
those previsions with respect to the payment of Assessments.
(b) Powers. The Corporation shall have such powers as are set
forth in this Declaration and in the Articles, together with all other powers
that belong to it by law.
(c) Classes of Members. The Corporation shall have a single
class of members.
(d) Voting and Other Rights of Members. The Board of
Directors shall establish and maintain the Reserve for Replacements by the
allocation and payment to such reserve fund of an amount determined
annually by the Board to be sufficient to meet the cost of periodic
maintenance, repair, renewal and replacement of the Community Area. In
determined the amount, the Board shall take into consideration the
expected useful life of the Community Area, projected increases in the
cost of materials and labor, interest to be earned by such fund and the
advice of Declarant or such consultants as the board may employ. The
Reserve for Replacements shall be deposited in a special account with a
landing institution the accounts of which are insured by an agency of the
United States of America or may, in the discretion of the Board, be
invested in obligations of, or fully guaranteed as to principal by, the
United States of America.
(f) Limitations on Action by the Corporation. Unless at least
two- thirds of the Mortgagees (based on one vote for each first mortgage
owned) or two- thirds (2/3) of the Members -have given their prior written
approval, the Corporation, the Board of Directors and the Owners may
not: (i) except as authorized by Paragraph 15(a), by act or omission seek to
abandon, partition, subdivide, encumber, sell or transfer the Community
Area (but the granting of easements for public utilities or other public
purposes consistent with the intended use of the Community Area shall
not be deemed a transfer for the purposes of this clause; (ii) fail to
maintain fire and extended coverage on insurable Community Area on a
current replacement cost basis in an amount at least one hundred percent
(100 of the insurable value (based on current replacement cost); (iii)
use hazard insurance proceeds for losses to any community Area for other
than the repair, replacement or reconstruction of the Community Area; (iv)
change the method of determining the obligations, assessments, dues or
other charges that may be levied against the Owner of a Residence; (v) by
act or omission change, waive or abandon any scheme of regulations or
their enforcement pertaining to the architectural design or the exterior
appearance of Residences, or the maintenance and up -keep of the
Community Area; or (vi) fail to maintain the Reserve for Replacements in
the amount required by this Declaration or any Supplemental Declaration
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(g) Mergers. Upon a merger or consolidation of another
corporation with the Corporation, its properties, rights and obligations
may, as provided in its articles of incorporation, by operation of law be
transferred to another surviving or consolidated corporation or,
alternatively, the properties, rights and obligations of another corporation
may be operation of law be added to the properties, rights and obligations
of the Corporation as a surviving corporation pursuant to a merger. The
surviving or consolidated corporation may administer the covenants and
restrictions established by this Declaration with the Tract together with the
covenants and restrictions established upon any other properties as one
scheme. No other merger or consolidation, however, shall affect any
revocation, change or addition to the covenants established by the
Declaration within the Tract except as hereinafter provided.
13. Assessments.
(a) Creation of the Lien and Personal Obli ation of
Assessments. Declarant hereby covenants, and each Owner of any
Lot by acceptance of a deed thereto, whether or not it shall be so
expressed in such deed, is deemed to covenant and agree to pay to
the Corporation the following: (1) General Assessments, (2) the
Community Area Initial Assessment, (3) annual and special Parcel
Assessments, (4) Architectural Control Assessments (to the extent
levied) and (5) Special Assessments, such Assessments to be
established and collected as hereinafter provided.
All Assessments, together with interest thereon and costs of
collection thereof, shall be a charge on the land and shall be a
continuing lien upon the Lot against which each Assessment is
made until paid in full. Each Assessment, together with interest
thereon and costs of collection thereof, shall also be the personal
obligation of the Person who was the Owner of the Lot at the time
when the Assessment became due.
(b) General Assessment.
(i) Purpose of Assessment. The General
Assessment levied by the Corporation shall be used
exclusively to promote the recreation, health, safety,
and welfare of the Owners of Lots and for the
improvement, maintenance, repair, replacement and
operation of the Community Area
(ii) Basis for Assessment
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(1) Lots Generally. Each Lot
owned by a Person other than
Declarant shall be assessed at a
uniform rate without regard to
whether a Residence has been
constructed upon the Lot.
(2) Lots Owned by Declarant.
No Lot owned by Declarant shall be
assessed by the Corporation except
such Lots as have been improved by
the construction thereon of
Residences which shall be subject to
assessment as provided in Clause (1)
above. Declarant to be charged only
when a valid Cof 0 has been issued
by the City of Carmel.
(3) Change in Basis. The basis
for assessment may be changed upon
recommendation of the Board of
Directors if such change is approved
by (I) two- thirds (2/3) of the
members or two- thirds (2/3) of the
Mortgagees (based on one vote for
each first mortgage owned) who are
voting in person or by proxy at a
meeting of such members duly called
for this purpose.
(iii) Method of Assessment. By a vote of a
majority of the Directors, the Board of Directors
shall, on the basis specified in subparagraph (ii), fix
the General Assessment for each assessment year of
the corporation at an amount sufficient to meet the
obligations imposed by the Declaration and all
Supplemental Declarations upon the Corporation.
The Board of Directors shall establish the date(s)
the General Assessment shall become due, and the
manner in which it shall be paid.
(iv) Allocation of Assessment. Certain
of the costs of maintaining, operating, restoring or
replacing the Community Area have been allocated
in this Declaration among Owners of Lots on the
basis of the location of the lands and improvement
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constituting the Community Area and the intended
use thereof. In determining the General
Assessment, the costs and expenses which in
accordance with the provisions of the Declaration
are to be borne by all Owners shall first be alloclted
to all Owners. Costs and expenses which in
accordance with the provisions of this Declaration
are to be borne by the Owners of certain Lots shall
then be allocated to the Owners of such Lots. The
provisions of subparagraph (ii) for uniform
assessment shall not be deemed to require that all
assessments against vacant Lots or Lots improved
with comparable types of Residences be equal, but
only that each Lot be assessed uniformly with
respect to comparable Lots subject to assessment
for similar costs and expenses.
(c) Community Area Initial Assessment. On the earlier of
(i) the date of a Lot is conveyed by Declarant to an Owner (other
than the holder of a first mortgage on such Lot in a conveyance
which constitutes a deed in lieu of foreclosure (ii) the date a
Residence constructed on the Lot has been certified for occupancy
by the Zoning Authority or (iii) the date a Residence on the Lot is
first occupied by an Owner upon completion of construction
thereof, there shall be due and payable to the corporation by the
Owner of such Lot the sum of One Thousand ($1,000.00) which
shall be deposited in the Reserve for Replacements maintained by
the Corporation.
(d) Parcel Assessments.
(ii) Purpose of Assessments. Parcel
Assessments shall be used for such purposes as are
authorized by the Supplemental Declaration for
such Parcel.
(ii) Method of Assessment. An annual
Parcel Assessment shall be levied by the
Corporation against Lots in a Parcel using the basis
set forth in the Supplemental Declaration for such
Parcel, and collected and disbursed by the
Corporation. The Board shall fix in accordance
with the By -Laws and the provisions of any
Supplemental Declaration the annual parcel
assessment for each Parcel, the date(s) such
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Assessment shall become due, and the manner in
which it shall be paid.
(iii) Special Assessments. In addition to
the annual Parcel Assessment, the Corporation may
levy in any fiscal year a special Parcel Assessment
against one or more of the Lots in a Parcel for the
purpose of (A) defraying, in whole or in part, the
cost of any construction, reconstruction, repair or
replacement of a capital improvement upon the
Parcel, including fixtures and personal property
related thereto, provide that any such Assessment
shall have the assent of a majority of the Owners of
Lots in the Parcel who are voting in person or by
proxy at a meeting of such Owners duly called for
this purpose or (B) defraying any Maintenance
Costs incurred in satisfying any requirements
imposed on the Corporation by a Supplemental
Declaration relating to a Parcel
(e) Architectural Control Assessment. If any Owner
fails to comply with the requirements of the first two sentences of
Paragraph 4(h) of a Supplemental Declaration relating to the Parcel
in which such Owner's Lot is located and/or the provisions of
Paragraph 14(c) of this Declaration, then the Corporation may levy
against the Lot owned by such Owner an Assessment in an amount
determined by the Board of Directors which does not exceed the
greater of (i) One Hundred Dollars ($100.00) for each day that
such failure continues after written notice thereof is given by
Declarant or the Corporation to such Owner or (ii) five Thousand
Dollars ($5,000.00) Such Assessment shall constitute a lien upon
the Lot of Such Owner and may be enforced in the manner
provided in subparagraph (h) below. The levy of an Architectural
Control Assessment shall be in addition to, and not in lieu of, any
other remedies available to Declarant and/or the Corporation
provided in this Declaration, at law or in equity in the case of the
failure of an Owner to comply with the provisions of this
Declaration and all applicable Supplemental Declarations.
(I) Special Assessment. In addition to such other
Special Assessments as may be authorized herein, the Corporation
may levy in any fiscal year a Special Assessment applicable to that
year and not more than the next four (4) succeeding fiscal years for
the purpose of defraying, in whole or in part, the cost of any
construction, repair, or replacement of a capital improvement upon
the Community Area, including fixtures and personal property
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relating thereto, provided that any such Assessment shall have the
assent of a majority of the votes of the members whose Lots are
subject to assessment with respect to the capital improvement who
are voting in person or by proxy at a meeting of such members
duly called for this purpose.
(g) Date of commencement of Assessments. The
General Assessment and parcel Assessments shall commence with
respect to assessable Lots within a Parcel on the first day of the
month following conveyance of the first Lot in the Parcel to an
Owner who is not Declarant. The initial Assessment on any
assessable Lot shall be adjusted according to the days remaining in
the month in which the Lot became subject to assessment.
(h) Effect of Nonpayment of Assessments: Remedies of
the Corporation. Any Assessment not paid within thirty (30)
days after the due date may upon resolution of the Board of
Directors bear interest from the due date at a percentage rate no
greater than the current statutory maximum annual interest rate, to
be set by the Board of Directors for each assessment year. The
Corporation shall be entitled to institute in any court of competent
jurisdiction any lawful action to collect a delinquent Assessment
plus any expenses or costs, including attorneys' fees, incurred by
the Corporation collecting such Assessment. If the Corporation
has provided for collection of any Assessment in installments,
upon default in the payment of any one or more installments, the
Corporation may accelerate payment and declare the entire balance
of said Assessment due and payable in full. No Owner may waive
or otherwise escape liability for the Assessments provide for herein
by non -use of the Community Area or abandonment of his Lot.
(i) Subordination of the Lien to Mortgages. The
lien of the Assessments provided for herein against a Lot shall be
subordinate to the lien of any recorded first mortgage covering
such Lot and to any valid tax or special assessment lien on such
Lot in favor of any governmental taxing or assessing authority
Sale or transfer of any Lot shall not affect the assessment lien. The
sale or transfer of any Lot pursuant to mortgage foreclosure or any
proceeding in lieu thereof shall, however, extinguish the lien of
such Assessments as to payments which became due more than six
(6) months prior to such sale or transfer. No sale or transfer shall
relieve such Lot from liability for any Assessments thereafter
becoming due or from the lien thereof.
(j) Certificates. The corporation shall, upon demand
by an Owner, at any time, furnish a certificate in writing signed by
an officer of the Corporation that the Assessments on a Lot have
been paid or that certain Assessments remain unpaid, as the case
may be.
(k) Annual Budget. By a majority vote of the
Directors, the Board of Directors shall adopt an annual budget for
the subsequent fiscal year, which shall provide for allocation of
expenses in such a manner that the obligations imposed by the
Declaration and all Supplemental Declarations will be met.
14. Architectural Control;
(a) The Architectural Review Board. An Architectural
Review Board consisting of three (3) or more Persons as provided
in the By -Laws shall be appointed by the Board of Directors. The
Declarant shall be the sole review board for all homes until 2/3 two
thirds of the lots are sold, 19 lots. Then the Declarant will appoint
a three person review board consisting of lot owners. The board
shall receive two sets of the following for signature.
1 House plans
2 Landscape plan, Minimum Plant Package including at
least Three (3) Hardwood Trees, 3" caliper shall be place in the
front yard of each lot
3 Plot plan, showing grade at curb and lot, utilities and
Concrete slabs on grade, decks, patios, etc.
4 Architectural Materials List.
No builder shall start on a lot until all items are reviewed, signed
and dated by the Architectural Review Board.
(b) Purpose. The Architectural Review Board shall
regulate the external design, appearance, use, location and
maintenance of the Tract of improvements thereon in such manner
as to preserve and enhance values and to maintain a harmonious
relationship among structures, improvements and the natural
vegetation and topography.
(c) Conditions. Except as otherwise expressly provided in
this Declaration, no improvements, alterations, repairs, change of colors,
excavations, changes in grade, planting or other work that in any way alters any
Lot f the exterior of the improvements located thereon from its natural or
improved state existing on the date such Lot was first conveyed in fee by
Declarant to another Owner shall be made or done without the prior approval by
the Architectural Review Board of a Lot Development Plan therefore. Prior to the
commencement by any Owner other than Declarant of (i) construction, erection or
alteration of any Residence, other building, fence, wall, swimming pool, tennis
court, patio, or other structure on a Lot or (ii) any plantings on a Lot, a Lot
16
Development Plan with respect thereto shall be submitted to the Architectural
Review Board, and no Residence, other building, fence, wall, swimming pool,
tennis court, patio or other structure shall be commenced, erected, maintained,
improved, altered, made or done, or any plantings made, by any Person other than
Declarant without the prior written approval of the Architectural Review Board of
a Lot Development Plan relating to such construction, erection, alteration or
plantings. Such approval shall be in addition to, and not in lieu of, all approvals,
consents, permits and/or variances required by law from governmental authorities
having jurisdiction over Towne Pointe, and no Owner shall undertake any
construction activity within Towne Pointe unless all legal requirements have been
satisfied. Each Owner shall complete all improvements to a Lot strictly in
accordance with the Lot Development Plan approved by the Architectural Review
Board. As used in this subparagraph (c), "plantings" does not include flowers,
bushes, shrubs or other plants having a height of less than eighteen (18) inches.
(d) Procedures. In the event the Architectural Review Board fails to
approve, modify or disapprove in writing a Lot Development Plan
within sixty (60) days after notice of such plan has been duly filed
with the Architectural Review Board in accordance with
procedures established by Declarant or, subsequent to the
Applicable Date, the Board of Directors, approval will be deemed
denied. A decision of the Architectural Review Board (including a
denial resulting from the failure of such Bard to act on the plan
within the specified period) may be appealed to the Board of
Directors which may reverse or modify such decision (including
approve a Lot Development Plan deemed denied by the failure of
the Architectural Review Board to act on such plan within the
specified period) by a two -third (2/3) vote of the Directors then
serving.
(e) Guidelines and Standards. The Architectural Review Board
shall have the power to establish and modify from time to time
such written architectural and landscaping design guidelines and
standards as it may deem appropriate to achieve the purpose set
forth in subparagraph (b) to the extent that such design guidelines
and standards are not in conflict with the specific provisions of this
Declaration. Any such guideline or standard may be appealed to
the Board of Directors which may terminate or modify such
guideline or standard by a two- thirds (2/3) vote of the Directors
then serving.
(I) Application of Guidelines and Standards. The architectural
Review Board shall apply the guidelines and Standards established
pursuant to subparagraph (e) in a fair, uniform and reasonable
manner consistent with the discretion inherent in the design review
process. In disapproving any Lot Development Plan, the
17
Architectural Review Board shall furnish the applicant with
specific reasons for such disapproval and may suggest
modifications in such plan which would render the Plan acceptable
tot he Board if resubmitted.
(g) Design Consultants. The Architectural Review
Board may utilize the services of architects, engineers and other
Persons possessing design expertise and experience in evaluating
Lot Development Plans. No presumption of any conflict of
interest or impropriety shall be drawn or assumed by virtue of the
fact that any of such consultants may, from time to time, represent
Persons filing Lot Development Plans with the Architectural
Review Board.
(h) Existing Violations of Declaration. The
Architectural Review Board shall not be required to consider any
Lot Development Plan submitted by an Owner who is, at the time
of submission of such Lot Development Plan, in violation of the
requirements of the first two sentences of Paragraph 4(h) of a
Supplemental Declaration relating to the Parcel in which such
Owner's Lot is located and/or the provisions of subparagraph (c) of
this Paragraph 14, unless such Owner submits to the Architectural
Review Board with such Lot Development Plan an irrevocable
agreement and undertaking (with such surety as the Board may
reasonably require) to remove from the Owner's Lot any
improvements or landscaping constructed and/or installed prior to
the submission of a Lot development Plan (or constructed and/or
installed in violation of a previously approved Lot development
Plan) to the extent any such previously constructed and/or installed
improvement or landscaping is not subsequently approved by the
Architectural Review Board. The Architectural Review Board
shall have the power to recommend to the Board of Directors that
the Corporation assess an Architectural Control Assessment
against any Owner who fails to comply with the requirements of
Paragraph 4 of a Supplemental Declaration of Paragraph 14 of this
Declaration. Under no circumstances shall any action or inaction
of the Architectural Review Board be deemed to be unreasonable,
arbitrary or capricious if at the time of such decision, the Person
having submitted a Lot development Plan for approval by the
Architectural Review Board has violated Paragraph 4 of a
Supplemental Declaration or Paragraph 14 of this Declaration and
such violation remains uncured.
(i) Exercise of Discretion. Declarant intends that the
members of the Architectural Review Board exercise discretion in
the performance of their duties consistent with the provisions of
!S
subparagraph (f), 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 Architectural Review Board
and in any action initiated to enforce this declaration in which an
abuse of discretion by the Architectural Review Board is raised as
a defense, abuse of discretion may be established only if a
reasonable Person, weighing the evidence and drawing all
inferences in favor of the Board, could only conclude that such
determination constituted an abuse of discretion.
(j) Liability of Board. Neither the Architectural
Review Board, nor any member thereof, nor any agent thereof, nor
the Declarant 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 according thereto. Further, the
Board does not make, and shall not be deemed by virtue of any
action of approval or disapproval taken by it to have made, any
representation or warranty as to the suitability or advisability of the
design, the engineering, the method of construction involved, or
the materials to be used.
(k) Inspection. Members of the Architectural
Review Board may inspect work being performed to assure
compliance with these Restrictions and applicable regulations.
15. Community Area.
(a) Ownership. The Community Area shall remain
private, and neither Declarant's execution or recording of an
instrument portraying the Community Area, nor the doing of any
other act by Declarant is, or is intended to be, or shall be construed
as, a dedication to the public of such Community Area. Declarant
or the Corporation may, however, dedicate or transfer all or any
part of the Community Area to any public agency, authority or
utility for use as roads, utilities, parks or other public purposes.
(b) Density of Use. Declarant expressly disclaims
any warranties or representations regarding the density of use of
the Community Area or any facilities located thereon.
(c) Obligations of the Corporation. The
Corporation, subject to the rights of Declarant and the Owners set
forth in this Declaration, shall be responsible for the exclusive
management and control of the Community Area and all
improvements thereon (including furnishings and equipment
19
related thereto), and, except as otherwise provided herein or in a
Supplemental Declaration, shall keep the Community Area in
good, clean, attractive and sanitary condition, order and repair.
(d) Easements of Enjoyment. No person shall have
any right or easement -of enjoyment in or to the Community Area
except to the extent granted by, and subject to the terms and
provisions of, this Declaration or any Supplemental Declaration.
Such rights and easements as are thus granted shall be appurtenant
to and shall pass with the title to every Lot for whose benefit they
are granted. Unless otherwise provided in a Supplemental
Declaration or a Plat, all Owners may use the Paths and the
Commons subject to the reserved rights of Declarant and the
Corporation. The Owners of Lots abutting the Lake may use such
Lake, but such use shall be limited to fishing and such other uses
as may be authorized by resolution adopted by the Board of
Directors. Subject to restrictions on points of access, Lake 1 may
be used by all Owners, but only for fishing and such other
purposes as may be authorized by the Board of Directors. No
Owner whose Lot does not abut a lake shall have any right of
access to a lake over any Lot, but only such right of access over the
Community Area as may be designated on a Plat or by the Board
of Directors for such purposes.
(e) Extent of Easements. The easements of enjoyment
created hereby shall be subject to the following:
(i) the right of the Corporation to establish
reasonable rules for the use of the Community Area
and to charge reasonable admission and other fees
for the use of any recreational facilities located in or
constituting a part of the Community Area except
that no fee shall be charged to those specifically
authorized to use such facilities by this Declaration
or any Supplemental Declaration unless the
Corporation is specifically authorized to do so by
this Declaration or a supplemental Declaration;
(ii) the right of the Corporation to
suspend the right of an Owner an all Persons whose
right to use the Paths or the Commons derives from
such Owner's ownership of a Lot to use such
portions of the Community Area for any period
during which any Assessment against his Lot
remains unpaid for more than thirty (30) days after
notice;
20
(iii) the right of the Corporation to
suspend the right of an Owner of any Person
claiming through the Owner to use the Paths, the
Commons for a period not to exceed sixty (60) days
for any other infraction of this Declaration, any
Supplemental Declaration or the Register of
Regulations;
(iv) the right of the Corporation to
mortgage any or all of the Community Area and the
facilities constructed thereon for the purposes of
improvements to, or repair of, the Community Area
or facilities constructed thereon, pursuant to
approval of .two thirds (2/3) of the votes of the
members or Vwo- thirds (2/3) of the Mortgagees
(based on one vote for each first mortgage owned),
voting in person or by proxy at a regular meeting of
the Corporation or a meeting duly called this
purpose;
(v) the right of the Corporation to
dedicate or transfer all or any part of the
Community Area to any public agency, authority or
utility, but no such dedication or transfer shall be
effective unless an instrument signed by the
appropriate officers of the Corporation acting
pursuant to authority granted by two- thirds (2/3) of
the votes of the Members (excluding Declarant) or
two- thirds (2/3) of the Mortgagees (based on one
vote for each first mortgage owned), agreeing to
such dedication or transfer, has been recorded, and
(vi) the right of Declarant in any
Supplemental Declaration or Plat to restrict the use
of Community Area located in a section to (a)
Owners of Residences located in such Section or (b)
to other Owners of less than all of the Lots in the
Tract.
Additional Rights of Use. The members of the family and
the guests of every person who has a right of enjoyment to
the Community Area and facilities may use the Community
Area and facilities subject to such general regulations
consistent with the provisions of this Declaration and all
Supplemental Declarations as may be established from time
21
to time by the Corporation and included with in the
Register of Regulations.
(h) Damage or Destruction by Owner. In the event the
Community Area is damaged or destroyed by an Owner or
any of his guests, tenants, licensees agents, or member of
his famil
�5:er4r�aa: :•:;d3`x:Y:i:2::::•u3,.v:.•. 9r.•s:.�:::,:;?;zi::•:
rs3i##r said
damaged area in a good workmanlike manner in
conformance with the original plans and specifications of
the area involved, or as the area may have been modified or
altered subsequently by the Corporation in the discretion of
the Corporation. An amount equal to the costs incurred to
affect such repairs shall be assessed against such owner as a
special Assessment and shall constitute a lien upon the Lot
of said Owner.
Conveyance of Title. Declarant may retain the legal title to
the Community Area or any portion thereof until such time
as it has completed improvements thereon, but
notwithstanding any provision herein, the Declarant hereby
covenants that it shall convey the to the Corporation, free
and clear of all liens and financial encumbrances except as
otherwise provided herein, not later than oy ars or
19 lots sold from the date such Community Area or portion
thereof is subjected to this Declaration. Owners shall have
all the rights and obligations imposed by this Declaration
with respect to such Community Area prior to conveyance,
except that the Corporation shall not be liable for payment
of taxes and insurance for such Community Area until title
is conveyed.
16. Use of Tract.
(a) Protective Covenants.
(i) Land
residential purposes and only on Residence s 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 Towne Pointe than the number
of original Lots depicted on the Plats. Not withstanding 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. No home occupation shall be conducted or maintained
on any Lot other than one which does not constitute a "special use" and is
incidental to a business, profession or occupation of the Owner or
occupant of such Lot and which is generally or regularly conducted at
another location which is away from such Lot. No signs of any nature,
22
kind or description shall be erected, placed, or permitted to remain on any
Lot advertising a permitted home occupation.
(ii) Nuisances. No nuisance shall be
permitted to exist or operate upon any Lot so as to be detrimental to ay
other Lot in the vicinity thereof or to its occupants.
(iii) Other Restrictions. The architectural
Review Board may adopt general rules and regulations to implement the
purposes set forth in Paragraph 14(b) and to supplement any covenants or
restrictions set forth in a Supplemental Declaration, including but not
limited to rules to regulate animals, antennas, signs, fences, walls, and
screens, mailboxes, storage tanks, awnings, storage and use of recreational
vehicles, storage and use of machinery, use of outdoor drying line, trash
containers, and planting, maintenance and removal of vegetation on the
Tract. The Architectural Review Board may adopt general rules and
regulations appropriate to each Parcel, which rules and regulations may
vary among Parcels. Such general rules may be amended by a two- thirds
(2/3) vote of the Architectural Review Board. Subsequent to the
Applicable Date, any such amendment may be made only after a public
hearing for which due notice to all affected Owners has been provided,
and if such amendments are approved by a two- thirds (2/3) vote of the
Board of Directors. All general rules and any subsequent amendments
thereto shall be placed in the Register of Regulations and shall constitute
Restrictions.
(iv) Exceptions. The Architectural
Review Board may authorize exceptions to or
variances from the general rules and regulations
adopted pursuant to clause (iii) if the Architectural
Review Board can show good cause and acts in
accordance with adopted guidelines and procedures.
(b) Maintenance of Tract. To the extent that exterior
maintenance is not provided for in a Supplemental Declaration,
each Owner shall keep all Lots owned by him, and all
improvements therein or thereon, in good order and repair and free
of debris including, but not limited to, the seeding, watering, and
mowing of all lawns, the pruning and cutting of all trees and
shrubbery and the painting (or other appropriate external care) of
all buildings and other improvement, all in a manner and with such
frequency as is consistent with good property management as
determined by the Architectural Review Board. In the event an
Owner of any Lot in the Tract shall fail to maintain the premises
and the improvements situated thereon, as provided herein, the
Corporation, after notice to the Owner as provided by the By -Laws
and approval by two- thirds (2/3) vote of the Board of Directors,
23
shall have the right to enter upon said Lot to correct drainage and
to repair, maintain and restore the Lot and the exterior of the
buildings and any other improvements erected thereon. All costs
related to such correction, repair or restoration shall become a
Special Assessment and full lien rights, upon such Lot.
17. Easements.
(a) Flat Easements. In addition to such easements as
are created elsewhere in this Declaration or in a Supplemental
Declaration and as may be created by Declarant pursuant to written
instruments recorded in the Office of the Recorder of Hamilton
County, Indiana, Lots are subject to drainage easements, sewer
easement, utility easements, entry way easements, landscape
easements, community area access easements, pathway
easements and non access easements, .either separately or in any
combination thereof, as shown on the Plats, which are reserved for
the use of Declarant, Owners, the Corporation, the Architectural
Review Board, public utility companies and governmental
agencies as follows:
(i) Drainage Easements. (DE) are
created to provide paths and courses for area and
local storm drainage, either overland or in adequate
underground conduit, to serve the needs of TOWNE
Pointe and adjoining ground and/or public drainage
systems; and it shall be the individual responsibility
of each Owner to maintain the drainage across his
own Lot. Under no circumstance shall said
easement be blocked in any manner by the
construction or reconstruction of any improvement,
nor shall any grading restrict, in any manner, the
water flow. Said areas are subject to construction or
reconstruction to any extent necessary to obtain
adequate drainage at any time by any governmental
authority having jurisdiction over drainage, by
Declarant, and by the Architectural Review Board,
but neither Declarant nor the Architectural Review
Board shall have any duty to undertake any such
construction or reconstruction. Said easements are
for the mutual use and benefit of the Owners
(ii) Sewer Easements. (SE) are created
for the use of the local governmental agency having
jurisdiction over any storm and sanitary waste
disposal system which may be designed to serve
24
TOWNE Pointe for the purpose of installation and
maintenance of sewers that are a part of said
system.
(iii) Utility Easements. (UE) are created
for the use of Declarant, the Corporation and all
public or municipal utility companies, not including
transportation companies, for the installation and
maintenance of mains, ducts, poles, lines and wires,
as well as for all uses specified in the case of sewer
easements.
(iv) Entry Way Easements. (EWE) are
created for the use by Declarant, the Architectural
Review Board and the Corporation for the
installation, operation and maintenance of the Entry
Ways.
(v) Landscape Easements. (LE) are
created for the use by Declarant, the Architectural
Review Board and the Corporation for the planting
and maintenance of trees, shrubs and other
plantings.
(vii) Community Area Access Easements.
(CAE) are crated for the use of Declarant and the
Corporation for the purpose of gaining access to the
Commons in the course of maintenance, repair or
replacement thereof and for the use of Owners for
the purpose of gaining access to the Commons to
enjoy the use thereof to the extent authorized
herein.
(viii) Pathway Easements. (PE) are
created for the installation by Declarant, the
maintenance by the Corporation and the use by the
Owners of the Paths and Path Lights.
(x) Non Access Easements. (NAE) are
crated to preclude access from certain Lots to
abutting rights -of -way across the land subject to
such easements.
25
All easements mentioned herein include the right of reasonable
ingress and egress for the exercise of other rights reserved. No
structure, including fences, shall be built on any drainage, sewer or
utility easement if such structure would interfere with the
utilization of such easement for the purpose intended or violate any
applicable legal requirement or the terms and conditions of any
easement specifically granted to a Person who is not an Owner by
an instrument recorded in the Office of the Recorder of Hamilton
County, but a paved driveway necessary to provide access to a Lot
from a public street and a sidewalk installed by or at the direction
of Declarant (and replacements thereof) shall not be deemed a
"structure" for the purpose of this Restriction. The Utility shall
repair said disturbances to their original condition and repair any
"structures" damaged in the course of maintaining their facilities
(b) General Easement. There is hereby created a
blanket easement over, across, through and under the Tract for
ingress, egress, installation, replacement, repair and maintenance
of underground utility and service lines and systems, including but
not limited to water, sewers, gas, telephones, electricity, television,
cable or communication lines and systems. By virtue of this
easement it shall be expressly permissible for Declarant or the
providing utility or service company to install and maintain
facilities and equipment on the Tract and to excavate for such
purposes if Declarant or such company restores the disturbed area
as nearly as is practicable to the condition in which it was found.
No sewers, electrical lines, water lines, or other utility service lines
or facilities for such utilities may be installed or relocated in a
Section except as proposed and approved by Declarant prior to the
conveyance of the first Lot in a Section to an Owner or by the
Architectural Review Board thereafter. Should any utility
furnishing a service covered by the general easement herein
provided request a specific easement by separate recordable
document, Declarant or the Corporation shall have the right to
grant such easement on the Tract without conflicting with the
terms hereof. This blanket easement shall in no way affect any
other recorded easements on the Tract, shall be limited to
improvements as originally constructed, and shall not cover any
portion of a Lot upon which a Residence has been constructed.
(c) Public Health and Safety Easements. An easement
is hereby created for the benefit of, and granted to, all police, fire
protection, ambulance, delivery vehicles, and all similar Persons to
enter upon the Community Area in the performance of their duties.
26
(d) Drainage Board Easement. An easement is
hereby created for the benefit of, and granted to, the Drainage
Board to enter the Tract and all Lots therein to the extend
necessary to exercise its rights with respect to any legal drain
constituting a part of the Drainage System.
(e) Crossing Underground Easements. Easements
utilized for underground service may be crossed by driveways,
walkways, Paths, and Community Area Access Easements
provided prior arrangements are made with the utility company
furnishing service. Such easements as are actually utilized for
underground service shall be kept clear of all other improvements,
including buildings, patios, or other pavings, other than crossings,
driveways, walkways, Paths or Community Area Access
Easements, and neither Declarant nor Corporation using the
easements shall be liable for any damage done by either of them or
their assigns, agents, employees, or servants to shrubbery, trees,
flowers or other improvements of the Owner located on the land
covered by said easements.
(f) Declarant's Easement to Correct Drainage. For a
period of ten (10) years from the date of conveyance of the first
Lot in a Section, Declarant reserves a blanket easement and right
on, over and under the ground within that Section to maintain and
to correct drainage of surface water in order to maintain reasonable
standards of health, safety and appearance. Such right expressly
includes the right to cut any trees, bushes or shrubbery, make any
grading of the soil, or to take any other similar action reasonably
necessary, following which Declarant shall restore the affected
property to its original condition as nearly as practicable.
Declarant shall give reasonable notice of its intention to take such
action to all affected Owners, unless in the opinion of Declarant an
emergency exists which precludes such notices.
(g) Water Retention. The Owner of each Lot, by
acceptance of a deed thereto, consents to the temporary storage
(detention) of storm water within the drainage easements (DE) on
such Owner's Lot.
18. Use of Lots During Development.
(a) By Declarant. Notwithstanding any provisions to
the contrary contained herein or in any other instrument or
agreement, Declarant or its sales agents or contractors may
maintain during the period of construction and sale of Lots and
Residences in the Tract or the Development Area, upon such
27
portion thereof as is owned or leased by Declarant, such facilities
as in the sole opinion of Declarant may be reasonably required,
convenient or incidental to the construction and sale of Lots and
Residences, including but without limiting the generality thereof, a
business office, storage area, construction yards, signs, model
Residences and sales offices. Declarant specifically reserves the
right to maintain a sales office in the Community during the
period that it is engaged in the sale of Lots in Towne Pointe.
(b) By Builders. Notwithstanding any provisions to
the contrary contained herein and as long as such use is in
compliance with local laws, ordinances and regulations, a builder
who has constructed a Residence in Towne Pointe may, with the
prior consent of the Board of Directors, use such Residence as a
"model" home and may hold such home open to the public, either
individually. or as part of a "home show" approved by the Board of
directors for such reasonable period as the Board of Directors may
specify. With the approval of Declarant, Lots adjacent to or in
proximity to such model home may be used for parking by visitors
to such model home.
19. Enforcement. The Corporation, any Owner or Declarant shall have the
right to enforce, by proceeding at law or in equity, all restrictions, conditions, covenants,
reservations, liens and charges now or hereafter imposed by the provisions of this
Declaration and of any Supplemental declarations, but neither Declarant nor the
Corporation shall be liable for damage of any kind to any Person for failure either to
abide by, enforce or carry out any of the Restrictions. No delay or failure by any Person
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 the Person of the right to do so thereafter,
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violation or violations of the Restrictions. In any action to enforce this Declaration, the
Person seeking enforcement shall be entitled to recover all costs of enforcement,
including attorneys; fees, if it substantially prevails in such action.
20. Limitations on Rights of the Corporation. Prior to the Applicable
Date, the Corporation may not use its resources nor take a public position in opposition to
the General Plan of Development or to changes thereto proposed by Declarant. Nothing
in this paragraph shall be construed to limit the rights of the Members acting as
individuals or in affiliation with other Members or groups as long as they do not
employee the resources of the Corporation or identify themselves as acting in the name,
or on the behalf, of the corporation.
21. Approvals by Declarant. Notwithstanding any other provisions
hereof, prior to the Applicable date, the following actions shall require the prior approval
of Declarant: the addition of real estate to the Tract; dedication or transfer of the
28
Community Are; mergers and consolidations of Sections within the Tract or of the Tract
with other real estate; mortgaging of the Community Area; amendment of this
Declaration and any Supplemental Declaration; and changes in the basis for assessment
or the amount, use and time of payment of the Community Area Initial Assessment.
22. Mortgages.
(a) Notice to Corporation. Any Owner who places a first
mortgage lien upon his Residence or the Mortgagee shall notify the
Secretary of the Board of Directors of such mortgage and provide the
name and address of the Mortgagee. A record of such Mortgagee's name
and address shall be maintained by the Secretary and any notice required
to be given to the Mortgagee pursuant to the terms of the Declaration any
Supplemental Declaration, the Articles or the By -Laws (the
"Organizational Documents shall be deemed effectively given if mailed
to such Mortgagee at the address shown in such record in the time
provided. Unless notification of any such mortgage and the name and
address of mortgagee are furnished to the Secretary, either by the Owner
or the Mortgagee, no notice to any Mortgagee as may be otherwise
required by the Organizational Documents shall be required and no
Mortgagee shall be entitled to vote by virtue of the Organizational
Documents or a proxy granted to such Mortgagee in connection with the
mortgage.
(b) Notices to Mortgagees. The Corporation shall promptly
provide to any Mortgagee of whom the Corporation has been provided
notice under subparagraph (a) above notice of any of the following:
(i) Any condemnation or casualty loss that
affects a material portion of the Community Area;
(ii) Any delinquency in the payment of any
Assessment owed by the Owner of any Residence on which
said Mortgagee holds a mortgage or any default by an
Owner under the Organizational Documents, if said
delinquency or default continues for more than sixty (60)
days;
(iii) Any lapse, cancellation or material
modification of any insurance policy or fidelity bond
maintained by the Corporation;
(iv) Any proposed action that requires the
consent of a specified percentage of Mortgagees; and,
29
(v) Any proposed amendment of the
Organization Documents affecting a change in
(A) the interests in the Community Area appertaining to
any Residence or the liability for Maintenance Costs
appertaining thereto,
(B) the vote appertaining to a Residence or
(C) the purposes for which any Residence or the
Community Area are restricted.
(c) Notice of Unpaid Assessments. The Corporation
shall, upon request of a Mortgagee, a proposed mortgagee, or a proposed
purchaser who has a contractual right to purchase a Residence, furnish to
such mortgagee or purchaser a statement setting forth the amount of the
unpaid Assessments against the Residence and the Owners, and any
Mortgagee or grantee of the Residence shall not be liable for, nor shall the
Residence conveyed be subject to a lien for, any unpaid Assessments in
excess of the amount set fourth in such statement.
(d) Financial Statements. Upon the request of any
Mortgagee, the Corporation shall provide to said Mortgagee the most
recent financial statement prepared on behalf of the Corporation.
(e) Payments by Mortgagees. Any Mortgagee may (i) pay
taxes or other charges that are in default and that may or have become a
lien upon the Community Area or any part thereof and (ii) pay overdue
premiums on hazard insurance policies or secure new hazard insurance
coverage for the Community Area in case of a lapse of a policy. A
Mortgagee making such payments shall be entitled to immediate
reimbursement from the Corporation.
23. Amendments.
(a) Generally. This declaration may be amended at any
time by an instrument signed by (i) the appropriate officers of the
Corporation acting pursuant tot he authority granted by not less than two
thirds (2/3) of the votes of the Members cast at a meeting duly called for
the purpose of amending this Declaration and, to the extent required by
Paragraph 21, (ii) Declarant.
(b) By Declarant. Declarant hereby reserves the right prior to
the Applicable Date unilaterally to amend and revise the standards,
covenants and restrictions contained in this Declaration; Such amendments
shall be in writing, executed by Declarant, and recorded with the Recorder
of Hamilton County, Indiana. No such amendment, however, shall restrict
or diminish the rights or increase or expand the obligations of Owners
with respect to Lots conveyed to such Owners prior to the amendment or
30
adversely affect the rights and interests of Mortgagees holding first
mortgages on Residences at the time of such amendment. Declarant shall
give notice in writing to such Owners and Mortgagees of any
amendments. Except to the extent authorized in Paragraph 17(b),
Declarant shall not have the right at any time by amendment of this
Declaration to grant or establish any easement through, across or over any
Lot which Declarant has previously conveyed without the consent of the
Owner of such Lot.
(c) Effective Date. Any amendment shall become effective
upon its recordation in the Office of the Recorder of Hamilton County,
Indiana.
24. Interpretation. The underlined titles preceding the various paragraphs
and subparagraphs of this Declaration are for convenience of reference only, and none of
them shall be used as an aid to the construction of a provision of this Declaration.
Wherever and whenever applicable, the singular form of any word shall be taken to mean
or apply to the plural, and the masculine form shall be taken to mean or apply to the
feminine or to the neuter.
25. Duration. The foregoing covenants and restrictions are for the mutual
benefit and protection of the present and future Owners, the Corporation, and Declarant,
and shall run with the land and shall be binding on all parties and all Persons claiming
under them until January 1, 2024, at which time said covenants and restrictions shall be
automatically extended for successive periods of ten (10 years; unless changed in whole
or in part by vote of those Persons who are then the Owners of a majority of the Lots in
the Tract.
26. Severability. Every one of the Restrictions is hereby declared to be
independent of, and severable from, the rest of the Restrictions and of and from every
other one of the Restrictions, and of and from every combination of the Restrictions.
Therefore, if any of the Restrictions shall be held to be invalid or to be unenforceable, or
to lack the quality of running with the land, that holding shall be without effect upon the
validity, enforceability or "running" quality of any other one of the Restrictions.
27. Non Liability of Declarant. Declarant shall not have any liability to an
Owner or to any other Person with respect to drainage on, over or under a Lot. Such
drainage shall be the responsibility of the Owner of the Lot upon which a Residence is
constructed and of the builder of such Residence and an Owner, by an acceptance of a
deed to a Lot, shall be deemed to agree to indemnify and hold Declarant free and
harmless from and against any and all liability arising from, related to, or in connection
with drainage on, over and under the Lot described in such deed. Declarant shall have no
duties, obligations or liabilities hereunder except such as are expressly assumed by
Declarant, and not duty of, or warranty by, Declarant shall be implied by or inferred from
any term or provision of this Declaration.
31
IN TESTIMONY WHEROF, Declarant has executed this Declaration as of the
date set forth above.
By
By:
By:
By:
LandLink Development, LLC
By: smom
Farm right Wright Group, LLC, as Co-
Managing Membe
Kayser Swidan of Olivewood Construction, Inc., as Co-
Managing ember
G- ochran, of Tandem Investments, Inc., as a
em er
Dav
M
Thomas J
Member
er of Carmel Development, LLC, as a
rmel Development, LLC, as a
32
NOTARY ACKNOWLEDGEMENT
STATE OF INDIANA
SS:
COUNTY OF HAMILTON
Before me, the undersigned, a Notary Public in and for said County and State,
personally appeared Parvin C. Wright, Kayser Y. Swidan, David J. Barker, Thomas J.
Lazzara and George T. Cochran, as representative members and co- managing members,
respectively for and on behalf of LandLink Development, LLC, an Indiana limited
liability company, who acknowledged the execution of the above and foregoing
Declaration of Covenants and Restrictions for and on behalf of said liability company.
WITNESS my hand and Notarial seal this F day of &brgs 2004.
DAVID D. MOORE
1 NO TMY Hamlfton County
m,, My Commiaalon Expires
AUOUat 1,2012
T'��
My commission expires:
(--‘2_64
Notary Public Residing in
toriJ County
A46vaT___
(printed signature)
This instrument prepared by David J. Barker, Attorney at Law, BARKER LAW OFFICES, 12588
Sandstone Run, Carmel, Indiana 46033.
33
DECLARATION OF COVENANTS AND RESTRICTIONS
EXIT A
DESCRIPTION OF DEVELOPMENT AREA
Exhibit A
Description of Development Area
A part of the Northwest Quarter of Section 28, Township 18 North, Range 3
East, Hamilton County, Indiana, being more particularly described as
follows:
Commencing at the southwest corner of the Northwest Quarter of Section 28,
Township 18 North, Range 3 East, Hamilton County, Indiana; thence North 00
degrees 41 minutes 33 seconds East (assumed bearing) on the west line of
said Northwest Quarter 827.54 feet to the Point of Beginning of the herein
described real estate, said point also being the southwest corner of the
real estate described in Instrument No. 87 -27439 in the Office of the
Recorder of Hamilton County, Indiana; thence North 89 degrees 54 minutes 30
seconds East parallel with the north line of the South Half of said
Northwest Quarter and on the south line of said Instrument No. 87 -27439 a
distance of 273.94 feet to a point on the prolongation of the west line of
the real estate described in Deed Book 361, Page 521; thence South 00
degrees 40 minutes 20 seconds West on said west line 827.54 feet to a point
on the south line of said Northwest Quarter; thence North 89 degrees 54
minutes 36 seconds East on said south line 537.83 feet to the southeast
corner of the real estate described in Instrument No. 2000 15374; thence
North 00 degrees 39 minutes 19 seconds East parallel with the east line of
the West Half of said Northwest Quarter and on the east line of said real
estate and the prolongation thereof a distance of 827.56 feet to a point on
the south line of said real estate described in Instrument No. 87- 27439;
thence North 89 degrees 54 minutes 30 seconds East on said south line and
parallel with said north line of the South Half of said Northwest Quarter
527.24 feet to a point on said. east line of the West Half of said Northwest
Quarter; thence North 00 degrees 39 minutes 19 seconds East on said east
line 671.34 feet to the northeast corner of the real estate described in
Instrument No. 99- 42238; thence South 89 degrees 54 minutes 30 seconds West
parallel with the south line of the North Half of said Northwest Quarter and
on the north line of said real estate 1338.33 feet to a point on the west
line of said Northwest Quarter; thence South 00 degrees 41 minutes 33
seconds West on said west line 671.34 feet to the Point of Beginning,
containing 30.84 acres, more or less.
Subject to the rights -of -way of Towne Road and 131st Street.
Subject to all other easements, restrictions, and rights -of -way of record.
DECLARATION OF COVENANTS AND RESTRICTIONS
EXHIBIT B
GENERAL PLAN OF DEVELOPMENT
DECLARATION OF COVENANTS AND RESTRICTIONS
EXIT C
DESCRIPTION OF THE TRACT
Exhibit C
PER THE REQUEST OF THE CLIENT, THE FOLLOWING OVERALL PERIMETER DESCRIPTION HAS BEEN
PREPARED OF THE ABOVE DESCRIBED REAL ESTATE:
A part of the Northwest Quarter of Section 28, Township 18 North, Range 3 East, Hamilton
County, Indiana, being more particularly described as follows:
Commencing at the southwest corner of the Northwest Quarter of Section 28, Township 18
North, Range 3 East, Hamilton County, Indiana; thence North 00 degrees 41 minutes 33
seconds East (assumed bearing) on the west line of said Northwest Quarter 827.54 feet to
the Point of Beginning of the herein described real estate, said point also being the
southwest corner of the real estate described in Instrument No. 87 -27439 in the Office of
the Recorder of Hamilton County, Indiana; thence North 89 degrees 54 minutes 30 seconds
East parallel with the north line of the South Half of said Northwest Quarter and on the
south line of said Instrument No. 87 -27439 a distance of 273.94 feet to a point on the
prolongation of the west line of the real estate described in Deed Book 361, Page 521;
thence South 00 degrees 40 minutes 20 seconds West on said west line 827.54 feet to a
point on the south line of said Northwest Quarter; thence North 89 degrees 54 minutes 36
seconds East on said south line 537.83 feet to the southeast corner of the real estate
described in Instrument No. 2000 15374; thence North 00 degrees 39 minutes 19 seconds
East parallel with the east line of the West Half of said Northwest Quarter and on the
east line of said real estate and the prolongation thereof a distance of 827.56 feet to a
point on the 'south line of said real estate described in Instrument No. 87- 27439; thence
North 89 degrees 54 minutes 30 seconds East on said south line and parallel with said
north line of the South Half of said Northwest Quarter 527.24 feet to a point on said
east line of the West Half of said Northwest Quarter; thence North 00 degrees 39 minutes
19 seconds East on said east line 671.34 feet to the northeast corner of the real estate
described in Instrument No. 99- 42238; thence South 89 degrees 54 minutes 30 seconds West
parallel with the south line of the North Half of said Northwest Quarter and on the north
line of said real estate 1338.33 feet to a point on the west line of said Northwest
Quarter; thence South 00 degrees 41 minutes 33 seconds West on said west line 671.34 feet
to the Point of Beginning, containing 30.84 acres, more or less.
Subject to the rights -of -way of Towne Road and 131st Street.
Subject to all other easements, restrictions, and rights -of -way of record.
SUPPLEMENTAL DECLARATION OF
COVENANTS AND RESTRICTIONS
VILLAGE OF TOWNE POINT
TOWNE POINT
This Supplemental Declaration, dated as of the 1 day of i f hZ7 2004,
by LandLink Development, LLC, an Indiana limited liability company,
WITNESSETHTHAT:
terms that are defined in the
same meaning in this Supplemental
The following words, phrases and
unless the context clearly requires
WHEREAS, the following facts are true:
A. Declarant is the sole owner of the fee simple title to the real estate located
in Hamilton County, Indiana, more particularly described in Exhibit A attached hereto
and incorporated herein by this reference.
B. This Declaration is a Supplemental Declaration as that term is defined in
the Declaration bf Covenants and Restrictions.
C. Declarant intends to subdivide the Parcel into Lots upon each of wtich a
Residence may be constructed.
NOW, THEREFORE, Declarant hereby makes this Supplemental Declaration as
follows:
1. Definitions. Words, phrases and
Declaration of Covenants and Restrictions have the
Declaration except as herein otherwise provided.
terms, as used in this Supplemental Declaration,
otherwise, mean the following:
"Declaration of Covenants and Restrictions" means the
Declar o Covenants and Restrictions of TOWNE POINTE dated as
of ft..j- 2004 and recorded in the Office of the Recorder of
Hamilton County, Indiana as Instrument Number o ?c*4 -oro b2:779 as
amended from time to time
"Lot" means a numerically designated subdivided parcel of land
depicted on a Plat.
"Owner" means any Person, including Declarant, who at any time
owns the fee simple title to a Lot.
200400062771
Filed for Record in
HAMILTON COUNTY INDIF
JENNIFER J HAYDEN
09 -08 At 02:04 pa
AMEND DECLA 35.0(
"Parcel" means that part of the real estate described in Exhibit A
which is subject to the covenants, restrictions, easements, charges and
liens imposed by the Declaration of Covenants and Restrictions.
"Plat" means the Secondary Plat of a larger tract of land that
includes the Parcel.
"Section" means that part of the Parcel which is depicted on a Plat.
"TONNE POINTE" means the name by which the Parcel shall be
known.
"Tract" means a larger portion of real estate, including the Parcel
and other blocks or tracts NOT subject to the covenants, restrictions,
easements, charges and liens imposed by the Declaration of Covenants
and Restrictions.
2. Declaration. Declarant hereby declares that, in addition to the covenants,
restrictions, easements, charges and liens imposed by the Declaration of the Covenants
and Restrictions, the Parcel shall be held, transferred, sold, conveyed and occupied
subject to the Declaration of Covenants and Restrictions and subject to the covenants,
restrictions, easements, charges and liens hereinafter set forth.
3. Land Use. Lots may be used only for residential purposes as provided
in the Declaration of Covenants and Restrictions. No portion of any Lot may be sold or
subdivided such that there will be thereby a greater number of houses in a Section than
the number of original Lots shown on a Plat of such Section.
4. Construction of Residences.
(a) Lot Development Plans. Prior to commencement of
any construction on a Lot, a Lot Development Plan shall be submitted to
the Architectural Review Board in accordance with the requirements of
Paragraph 14 of the Declaration of Covenants and Restrictions. The
Architectural Review Board may require as part of a Lot Development
Plan a report of a subsurface soils investigation of the Lot made by a
qualified soils engineer, which report shall include recommendations for
the foundations of the proposed Residence. Each Owner shall comply
with the terms and provisions of Paragraph 14 of the Declaration of
Covenants and Restrictions and the requirements of the Architectural
Review Board established pursuant to the authority granted by the
Declaration of Covenants and Restrictions.
(b) Size of Residence. Except as otherwise provided herein,
no residence may be constructed on any Lot unless such Residence,
exclusive of open porches, attached garages and basements, shall have a
ground floor area of 3,000 square feet if a one -story structure, or 1,800
2
square feet if a higher structure, but in the case of a building higher than
one story, there must also be at least 600 square feet in addition to the
ground floor area and the total aggregate floor area shall not be less than
3,000 square feet.
(c) Temporary Structures. No trailer, shack, tent, boat,
basement, garage nor 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.
(d) Building Location and Finished Floor Elevation. No
building may be erected between the building line shown on the Plat and
the front Lot line, and no structure or part thereof may be built or erected
nearer than ten (10) feet to any side Lot line or nearer than twenty (20)
feet to any rear Lot line; provided that the aggregate of side yard shall not
be less than twenty -five (25) feet. A minimum finished floor elevation,
shown on the development plan for each Section, has been established for
each Lot and no finished floor elevation with the exception of flood
protected basements shall be constructed lower than said minimum
without the written consent of the Architectural Review Board.
Demonstration of adequate storm water drainage in conformity with both
on -Lot and overall project drainage plans shall be a prime requisite for
alternative finished floor elevations. Before construction commences, the
finished floor elevation shall be physically checked on the Lot and
certified by a licensed professional engineer or a licensed land surveyor.
(e) Driveways. All driveways shall be poured Concrete and
maintained dust free. No pavers, asphalt block or concrete substitutes
shall be allowed unless approved in writing by the Architectural Review
Board prior to installation.
(f) Yard Lights. Each person who undertakes to construct a
Residence on a Lot must provide and maintain on the lot a front yard light
which must operate from dusk to dawn. The location, size and type of
light are subject to approval of the Architectural Review Board. Such
light fixture must have a bulb of a maximum wattage approved by the
Architectural Review Board to insure uniform illumination of the Lot and
must be equipped with a photo electric cell or similar device to insure
automatic illumination from dusk to dawn each day.
(g) Storage Tanks. Any gas or oil storage tanks used in
connection with a Lot shall be either buried or located in a Residence such
that they are completely concealed from public view and such must
comply with all local, county and state laws, ordinances and regulations
(h) Construction and Landscaping. All construction upon,
landscaping of and other improvement to a Lot shall be completed strictly
in accordance with the Lot Development Plan approved by the
Architectural Review Board. All landscaping specified on the landscaping
plan approved by the Architectural Review Board shall be installed on the
Lot strictly in accordance with such approved plan within thirty (30) days
following substantial completion of the Residence unless the Board agrees
to a later landscaping completion date, but in no event later than the date
of receipt of certificate of occupancy. Unless a delay is caused by strikes,
war, court injunction or acts of God, the Owner of any Lot which on the
date of purchase from Declarant is not improved with a Residence shall
commence construction of a Residence upon the Lot within one (1) year
from the date the Owner acquired title thereto and shall complete
construction of such Residence within one (1) year after the date of
commencement of the building process, but in no event later than two (2)
years after the date the Owner acquired title to the Lot unless such Lot is
adjacent to a Lot upon which the Owner has constructed a Residence in
which such Owner permanently resides. If the Owner fails to commence
or complete construction or a Residence within the time periods specified
herein, or if the Owner should, without declarant's written approval, sell,
contract to sell, convey, or otherwise dispose of, or attempt to sell, conve 4,
or otherwise dispose of, the Lot before completion of construction of a
Residence on the Lot, then, in any of such events, Declarant may:
(1) re -enter the lot and divest the Owner of title
thereto by tendering to the Owner or to the
Clerk of the Circuit /Superior Courts of
Hamilton County the lesser of (i) the net
dollar amount as was received by Declarant
from such Owner as consideration for the
conveyance by Declarant of the Lot,
together with such actual costs, if any, as the
Owner may prove to have been incurred
connection with the commencement of
construction of a Residence on the Lot or (ii)
then fair market value of the Lot, as
determined by averaging two (2) appraisals
made by qualified appraisers appointed by
the Judge of the Hamilton County Circuit or
Superior Courts;
(ii) obtain injunctive relief to force the Owner to
proceed with construction of any Residence, a Lot
Development Plan for which has been approved by the
Architectural Review Board upon application by such
Owner, or
4
(iii) pursue other remedies at law or in equity as
may be available to Declarant.
The failure of the Owner of a Lot to apply for approval of, or
receive approval from, the Architectural Review Board of a Lot
Development Plan shall not relieve such Owner from his obligation to
commence and complete construction of a Residence upon the Lot within
the time periods specified herein. For the purposes of this subparagraph
(h), construction of a Residence will be deemed "complete" when the
exterior of the Residence (including but not limited to the foundation,
walls, roof, windows, entry doors, gutters, downspouts, exterior trim,
paved driveway and landscaping) has been completed in conformity with
the Lot Development Plan.
(i) Mailboxes. All mailboxes installed upon Lots shall be
uniform and shall be of a type, color and manufacture approved by the
Architectural Review Board. Such mailboxes shall be installed upon posts
approved as to type, size and location by the Architectural Review Board.
(j) Septic Systems. No septic tank, absorption field or
any other on -site sewage disposal system (other than a lateral main
connected to a sanitary sewerage collection system operated by the City of
Carmel or a successor public agency or public utility) shall be installed or
maintained on any Lot.
(k) Water Systems. No private or semi private water
supply system may be located upon any Lot which is not in compliance
with regulations or procedures adopted or established by the Indiana State
Board of Health, or other civil authority having jurisdiction. To the extent
that domestic water service is available from a water line located within
200 feet of the lot line maintained by a public or private utility company,
each Owner shall connect to such water line to provide water for domestic
use on the Lot and shall pay all connection, availability or other charges
lawfully established with respect to connections thereto. Notwithstanding
the foregoing, an Owner may establish, maintain and use an irrigation
water well on his Lot as long as the well has been approved and permitted
by the local governing body such as the Board of Public Health,
(1) Drainage. In the event storm water drainage from any
Lot or Lots flows across another Lot, provision shall be made by the
Owner of such Lot to permit such drainage to continue, without restriction
or reduction, across the downstream Lot and into the natural drainage
channel or course, although no specific drainage easement for such flow of
water is provided on the Plat To the extent not maintained by the
Drainage Board, "Drainage Easements" reserved as drainage swales shall
5
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 Parcel may be included in a
legal drain established by the Drainage Board. In such event, each Lot in
the Parcel will be subject to assessment by the Drainage Board for the
costs of maintenance of the portion of the Drainage System and /or the
Detention Basin included in such legal drain, which assessment will be a
lien against the Lot. The elevation of a Lot shall not be changed so as to
affect materially the surface elevation or grade of surrounding Lots.
Perimeter foundation drains, sump pump drains and downspouts shall not
be outletted into streets or street rights -of -way. These drains shall be
connected whenever feasible into a subsurface drainage tile provided at
each lot by the developer. Each Owner shall maintain the subsurface
drains and tiles located on his Lot and shall be liable for the cost of all
repairs thereto or replacements thereof.
5. Maintenance of Lots.
(a) Vehicle Parking No camper, motor home, truck, trailer,
boat or disabled vehicle may be parked or stored overnight or longer on
any Lot in open public view.
(b),- Signs. Except for such signs as Declarant may in its
absolute discretion display in connection with the development of
TOWNIE POINT or the Parcel and the sale of Lots therein and such signs
as may be located on the Community Area, no sign of any kind shall be
displayed to the public view on any Lot except that one sign of size and
nature as determined by local ordinance may be displayed at any time for
the purpose of advertising the property for sale, or may be displayed by a
builder to advertise the property during construction and sale
(c) Fencing. No fence, wall, hedge or shrub planting higher
than eighteen (18) inches shall be permitted between the front property
line and the front building set -back line except where such planting is
located on a Landscape Easement or is part of Residence landscaping and
the prime root thereof is within four (4) feet of the Residence Trees shall
not be deemed "shrubs" unless planted in such a manner as to constitute a
"hedge No chain link fence shall be erected upon a Lot under any
circumstances. 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 Corporation in such manner as to preserve
the uniformity of such fence. In no event may any fence be erected or
maintained on any Lot without the prior approval of the Architectural
Review Board, which may establish design standards for fences and
further restrictions with respect to fencing, including limitations on (or
prohibition of) the installation of fences in the rear yard of a Lot and along
the bank of any Detention Basin. All fences shall be kept in good repair.
No fence, wall, hedge or shrub planting 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 corner lot within the triangular area formed
by the street property liens and a line connecting points 25 feet from the
intersection of said street lines, or in the case 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 sufficient height to prevent obstruction of such sight lines.
(d) Vegetation. An Owner shall not permit the growth of
weeds and volunteer trees and bushes on his Lot, and shall keep his Lot
reasonably clear from such unsightly growth at all times. If an Owner
fails to comply with this Restriction, the Board of Directors shall cause the
weeds to be cut and the Lot cleared of such growth at the expense of the
Owner thereof and the Corporation shall have a lien against the cleared
Lot for the expense thereof.
(e) 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. Barking•
dogs shall constitute a nuisance.
(f) 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. All
equipment for storage or disposal of such materials shall be kept clean and
sanitary.
(g) 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.
(h) Outside Burning No trash, leaves, or other materials
shall be burned upon a Lot if smoke there from would blow upon any
other Lot and, then, only in acceptable incinerators and in compliance with
all applicable legal requirements.
(i) Antennas and Receivers. No satellite receiver (greater
than 18 inches in diameter), down -link or exterior antenna shall be
permitted on any Lot without the prior written consent of the Architectural
Review Board Unless consent thereto is granted by a majority of the
7
Owners, the Architectural Review Board shall not give its consent to the
installation of any exterior television antenna if television reception is
available from underground cable connections serving the Lot.
(j) Exterior Lights Except for Path Lights, 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.
(k) Electric Bug Killers. Electric bug killers, "zappers" and
other similar devices shall not be installed at a location or locations which
will result in the operation thereof becoming a nuisance or annoyance to
other Owners and shall only be operated when outside activities require
the use thereof and not continuously.
6. General Community Rules. Each Lot shall be subject to the guidelines,
rules, regulations and procedures adopted by the Architectural Review Board pursuant to
Paragraph 16(a)(iii) of the Declaration of Covenants and Restrictions, and each Owner of
a Lot shall at all times comply therewith.
7. Assessments. The Board of Directors may make Assessments to cover
any costs incurred in enforcing these covenants or in undertaking any maintenance or
other activity that is the responsibility of the Owner of a Lot hereunder but which su }h.
Owner has not undertaken as required hereunder. Any such Assessment shall be assessed
only against those Owners whose failure to comply with the requirements of these
covenants necessitated the action to enforce these covenants or the undertaking of the
maintenance or other activity.
8. Enforcement. The right to enforce each of the foregoing Restrictions
by injunction, together with the right to cause the removal by due process of law of
structures erected or maintained in violation thereof, is reserved to Declarant, the
Corporation, the Architectural Review Board, the Owners of the Lots in the parcel, their
heirs and assigns, and to the Zoning Authority, their successors and assigns, who are
entitled to such relief without being required to show any damage of any kind to
Declarant, the Corporation, the Architectural Review Board, any Owner or Owners, or
such Zoning Authority by or through any such violation or attempted violation. Under no
circumstances shall Declarant, the Corporation or the Architectural Review Board be
liable for damages of any kind to any Person for failure to abide by, enforce or carry out
any provision or provisions of this Supplemental Declaration. There shall be no rights of
reversion or forfeiture of title resulting from violations.
9. Severabilitv. Invalidation of any of these covenants and restrictions or
any part thereof by judgment or court order shall not affect or render the remainder of
said covenants and restrictions invalid or inoperative.
10. Non Liability of Declarant. Declarant shall have no duties, obligations
or liabilities hereunder except such as are expressly assumed by Declarant, and no duty
8
of, or warranty by, Declarant shall be implied by or inferred from any term or provision
of this Supplemental Declaration.
11. General Provisions. This Supplemental declaration may be amended at
any time in the manner provided in Paragraph 23 of the Declaration of Covenants and
Restrictions except that no amendment adopted pursuant to Paragraph 23(a) of the
declaration of Covenants and Restrictions shall be effective as against a Mortgagee who
subsequently acquires title to a Lot unless approved by at least two thirds (2/3) of the
Mortgagees who hold first mortgages on the Lots in the Parcel (based on one vote for
each first mortgage owned) or at least two- thirds (2/3) of the Owners of the Lots in the
parcel (excluding Declarant).
Except as the same may be amended from time to time, the foregoing restrictions
will be in full force and effect until January 1, 2024, at which time they will be
automatically extended for successive periods of ten (10) years, unless by a vote of the
majority of the then Owners of Lots in the Parcel it is agreed that these Restrictions shall
terminate in whole or in part.
N WITNESS WHEREOF, this Supplemental Declaration has been executed as
of the date first above written.
By:
By:
B
LandLink Development,
Parvin C. nor
Managing Me
By
Kayser Y Swidan of Olivewood Construction, Inc., as Co-
Managing Member
George T.
e ber
Member
9
iott Wright Group, LLC., as Co-
G'�
ochran of Tandem Investments,
J. Ba er of Carm e opme ,LLC, as a
G,
Thomas J./Lazi a o£,Winel Development, LLC, as a
Member ty t
STATE OF INDIANA
SS:
COUNTY OF HAMILTON
Before me, the undersigned, a Notary Public in and for said County and State,
personally appeared Parvin C. Wright, Kayser Y. Swidan, David J. Barker, Thomas J.
Lazzara and George T. Cochran, as representative members and co- managing members,
respectively for and on behalf of LandLink Development, LLC, an Indiana limited
liability company, who acknowledged the execution of the above and foregoing
Supplemental Declaration of Covenants and Restrictions for and on behalf of said
liability company.
WITNESS my hand and Notarial seal this day of Sli 2004.
DAVID 0. MOORE
Hamilton County
E.. My Ccmmission Expires
August 1, 2012
My commission expires:
x- c -ao <.z
NOTARY ACKNOWLEDGEMENT
Notary Public Rest tng in
(L ro>4.) County
A 4-vc6 Moale_cc_,
This instrument prepared by David J. Barker, Attorney at Law, BARKER LAW OFFICES, 12588
Sandstone Run, Carmel, Indiana 46033.
10
(printed signature)
SUPPLEMENTAL DECLARATION OF COVENANTS AND RESTRICTIONS
EXHIBIT A
DESCRIPTION OF DEVELOPMENT AREA/LAND
Exhibit A
Description of Development Area
Section Township 1° North, Range 3
Northwest Quarter of descr_ced as
st, of t__ being more particularly Hamilton County, Indiana,
follows: h line of said instrument Section
-.h est corner of :he Northwest Quarter
thence North 8,
Commenting
c wn s hi p l at L::2 =Ca- 3 East, Hamilton County, sn'_ _.•a, hence1 ne of
r h_p 1� North, Range Hami 1 bearing) vr, the west
e'gre 41 inutes 33 se: :'n ds East of Beginning the e iEo f
rees to t he Point of Be- -.r r=
said Northwest Quarter 8 2 7 5 4 f point also being the southwest
C bey _al estate, said po a S1-27439 e n the Office G1 the rl cr in lnstru %tent No. i t degrees p mutes 30
e estate H _tons Indiana; t hence North 54 Recorder of Hamilton County, n of the South Half of said
r er the north line of t
i parallel with h2 No. S7 -?7439 a
Northwest East u1'tec__ south
,-.r' eSt C�:� ter an�.. on the on e r.-,, ga of the west line 0=
d•. Lhw f 23 r p_.._o
X73 a+ feet to a point thence Sou 00
t i e re_C. s in De =d vc=r. 361 Page 52 enr to a point
the real estate e s 2 s said west line 127.5_ feet t
degrees a minutes t Quarter; thence degrees
l saC vCrL:'•LvcS t�L;_ to ence r c °22t tG th2 SOL'tT1caSt
ute touts ore 3
south ilne 537• "000- 15374; thence
c 3F S2CGndS F =ct said s�ut
c
minutes d in Instrument No. of
Cr r ne ^T the rEa1 estate describe seconds ;Iasi tar=' e i with the east line
39 minutes 1 se c- line of said real
North s J degrees Quart and on the ea l ^n.
Sai.'v. Northwest Cr o2- SC feet to a point on
the West Half of distance of `27 et. 4"� -27 in
estate and the ofprolongation thereof real a =gibed in Instr ment 4 9
line of said -e estate line and
the thence south r minutes 30 secon
,s East on sale south thence nCe North 89 degrees 54 line n c South Half Of said Northwest Quarter
parallel with said north line of the of West of said Quarter
o f the •,•pest
5 27.24 feet to a point on said east ete° 19 ce^•Jn:= East C�^ said eat..
thence North 03 degrees the seconds s tact on east
_n
l ine €7 t th_e northeast. -orn' of n 30 cried5 in °4 9 to fees 54 minutes 1; st _4 thence s s conds2r West
r No. .:i:3�, e Sout de Half said Northwest instrument of the North •-alf o-
p3r! with the south 1 i3° 3 feet to a point on the west
north line real estate 8.3 s 4 minutes 33
the r. ins o: said South degrees r.._,
C 2 i:C -re ;Ce CO 0 d g- n 3
line of said on Northwest Quarter; -1 34 feet the Pe "nt o-
geCf ^,�S °Jt Ci`l ga:_. i': °St n`' 6-1.34
Containing 30.8 acres, more or Less.
Subj to the rights- C= :ay of Towne
Road and 13'_s'' Street.
Subject an�? rights-of-way of record.
all other easements, _estr_ction