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HomeMy WebLinkAboutCovenants & RestrictionsDECLARATION OF COVENANTS AND RESTRICTIONS Bella Terra This Declaration, made as of the~ day of LLC, an Indiana limited partnership ("Declarant"), ,2.004, by BP Development, WITNESSETH: WHEREAS, the following facts are tree: A. Declarant owns 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 Bella Terra. B. Declarant' intends but is not obligated, to construct certain improvements and amenities which, if constructed, shall constitute Community Area. C. .Declarant desires to provide for the preservation and enhancement of the property values, amenities and oppommities in Bella Terra 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, easements, charges and liens hereinafter set forth, each of which is for the benefit of the Lots and lands in the Tract and the future owners thereof. D. Declarant deems it desirable, for the efficient preservation of the values and amenities in Bella Tm to create an agency to which may be delegated and assigned the powers of owning, maintaining and administering the Community Area, administe~g 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 Bella Terra. E. Declarant has incorporated under the laws of the State of Indiana a nonprofit corporation known as Bella Terra 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 hereafter 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 be in furtherance of.a plan for the improvement and sale of Lots in the Tract, and are established and agreed upon for the purpose of enhancing and protecting the value, desirability and attractiveness of the Tract as a whole and of each of the Residences, Lots and lands situated therein. The Restrictions shall nm with the land and shall be binding pon Declarant, its successors and assigns, and upon the parties having or acquiring any interest in the Tract or any part or parts thereof subj.ect 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 terns, as used in the Declaration, unleSs the context clearly'requires otherwise, shall mean the. following: "Applicable Date" means the earlier of (i) the date when all Lots in the Development Area have been improved by the construction thereon of Residences, (ii) December 31, 2010 or (iii) the date designated as the Applicable Date by Declarant in a written notice delivered to the Board of Directors. "Architectural Control Assessment" means the assessment levied Corporation-pursuant to Paragraph 16(e). by the "Architectural Review Board" means that entity established pursuant to Paragraph 17 of this Declaration for the purposes therein stated. "Articles" means the Articles of Incorporation of the Corporation, as amended frOm time to t/me. "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. ."Building Activity" means any activity or undertaking on a Lot of a type described in Paragraph 17(c). "Building Guideline___~s" means guidelines and requirements for Building Activity on the Tract adopted by Declarant or the Architectural Review Board. "Board of Directors" means the governing body of' the Corporation elected in accordance with the By-Laws. "By-Laws" means the Code of By-Laws of the Corporation, as amended from time to time. "Commons" means the land denoted on a Plat as "Commons" or designated 'as "Commons" in any recorded instrument executed by Declarant. "Comoration" means Bella Terra Homeowners, corporation, its successors and assigns. Inc., an Indiana nonprofit "Declarant" means BP 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 fights and obligations of Declarant). "Designated Builder_" means during such per/od as such designation by Declarant may continue, and Person engaged/n the construction of more than one (1) Residence on the Tract who is designated By Declarant as a "Designated Builder". Declarant may make and revoke any such designation at any time an'd from time to time. A builder approved pursuant to Paragraph 32 may, but will not necessarily be, a Designated Builder. "Development Are_~" means the land described in Exhibit A together with any land contiguous thereto added to the Tract pursuant to ParagraPh 3 off'tis Declaration. "_Drainage Board" means the Hamilton County, Indiana Drainage Board, its successors or assigns. "Drainage System" means the open dm/nage ditches and swales, the subsurface drainage files, pipes and structures, the dry and wet retention and/or detention ponds, the Lake and the other structures, fixtures, properties, equipment and' facilities 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 re/erred to on a 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 Bella Terra or part thereof (exclusiVe of the street pavement, curbs and' drainage structures and tiles), the traffic islands depicted as a designated Block on a Plat and any other traffic islands dividing a roadway providing access to Bella Terra 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 t/me. "Landscape Easement" means a portion of a Lot denoted on a Plat or descr/bed in a recorded insmunent as an area to be landscaped. "Bella. Terra" means the name by which the Tract shall be known. "Lo__!t" means a platted lot as shown on a 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, included elevation and floor plans, (iv)material plans and Specifications, (v) landscaping plan, (v/) exterior lighting plan, (vii) tree preservation plan and (viii) all other data or information that. the Architectural Review Board may request with respect to the improvement or alteration of a Lot (including but not limited to the Iandscaping thereof) of 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 wkich the term applies opefrational and. in good condition, including but not limited to the cost of all upkeep, maintenance, repair, replacement of all or any part of any such facility, payment of all insurance with respect thereto, all taxes imposed on the facility and on the underl .ying land, leasehold, easement or right-of-way, and any. other expense related to the 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 DeCl'arant, who a 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. "Parcel" means any part' of the Development Area that is subject to the same Supplemental Declaration or-is declared by Declarant to constitute a "Parcel". "Part of the Development Aren" means any part of the Development Area not included in the Tract. "Perso_.__._n_n" means an individual, firm, corporation, partnership, association, trust or other legal entity, or any combination thereof. "Planting Area" means a landscaped area located in the right-of-way of a public street, or as adjacent to a Private Drive or on a Commons, in a Park or in or on other Community Area. "Plat" means a final secondary plat of a portion of the Development Area recorded irt the Office of the Recorder of Hamilton County, Indiana. "P_fivate Driv_e" means a street, lane, road, driveway or other right-of-way designed to provide access to one or more Lots or to the Commurfity Area that has not been accepted for maintenance be a public authority. Private Drive does not include a dr/veway located entirely on a }ingle Lot. "Reserve for Replacements" means a fund established and maintained by the Corporation to meet the cost of periodic maintenance, repairs, renewal and replacement of the Community Area. "Residence" means.any structure intended exclusively for Occupancy by a single family together with all appurtenances thereto, including private garage and outbuildings and recreational facilities usual and incidental t the use of a single family residential lot. "Restrictions" means the covenants,, conditions, easements, charges, hens, restrictions, niles 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 t/me 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 a Supplemental Declaration of Covenants and Restrictions for any Parcel within the Development Area and any Plat or other supplementary declaration of covenants, conditions or restrictions which may be recorded · . and which extends the provisions of this Declaration of any previously recorded Supplemental Declaration to a Section or Parcel and contains such complementary or supplementary provisions for such Section or Parcel as are required or permitted by this Declaration. "Tract" means the land described in Exhibit C and such other real estate as maY from time to time be annexed thereto under the provisions of Paragraph 3 hereof. "Zoning Authority" with respect to any action means the Administrator of the Carmel Plan Commission. 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 laws to hear appeals from, or review the action, or the failure to act, of the Administrator. "Zoning Ordinance" means the ordinance adopted by the Carmel Common Council with respect to the zoning of the Parcel. 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 contact 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 wit Declarant, the Corporation, and the Owners and subsequent Owners of each of the Lots affected by these Restrictions to keep, observe, comply wit 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 rea/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 tiffs 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 Supplemental Declaration. . Maintenance of Entry Ways, Landscape Easements and Planting Areas (a) Entry_ Ways. The Corporation shall maintain the Entry Ways and ail improvements and plantings thereon, and the Maintenance Costs thereof shall be assessed as a General Assessment against ail Lots subject to assessment. Grass, trees, shrubs and other plantings located on an Entry Way shall be kept neatly cut, cultivated or trimmed as reasonably required to maintain an attractive entrance to Bella Terra or a part thereof. All entrance signs located on an Entry Way shall be maintained at all times in good and sightly condition appropriated to a first-class residential subdivision. (b) Landscape Easements. Unless the Board of Directors detem4nes that all or some of the Landscape Easements should be maintained by the Corporation and the Maintenance Costs thereof assess as a General Assessment, the Owner of each Lot upon which a Landscape Easement is located shall'at h/s/her expense keep the grass, trees, shrubs and other plantings located on a Landscape Easement neatly cut, cultivated or trimmed as reasonably necessary to maintain the same at all times in a good and sightly condition appropriate to a first-class residential subdivision and, if such Owner fails to do so, the Corporation may undertake such maintenance and assess the Maintenance Costs thereof as a Special Assessment against such Lot. The Corporation shall maintain (and replace as appropriate) all fences installed by Declarant or. the Corporation in a Landscape Easement and the Maintenance Costs thereof shall be assessed as a general assessment against all. Lots subject to assessment. (c) Planting Areas. To the extent not maintained by public authority, the Corporation shall maintain the Planting Areas, and the Maintenance Costs thereof shall be assessed as a General Assessment against all Lots subject to assessment. 5. Private Drives. Unless otherwise provided in a Supplemental Declaration, each Private Drive shall be owned by the Corporation and maintained by the Corporation in good condition satisfactory for the purpose for which it was constructed. The Maintenance Costs incurred by the Corporation in maintaining a Private Drive (other than Frontage Place) shall be assessed against all Lots whose principal means of vehicular access to a public right-of-way is over and across such Private Drive. The Maintenance Costs for Frontage Places shall be assessed as a General Assessment against all Lots subject to assessment. As used herein, "Frontage Place" means a roadway situated parallel to a public street in order to provide access to one or more Lots and/or a roadway separated from a publicly maintained street by an "eyebrow" median. Estimated Maintenance Costs, including a contribution to a reserve fixnd for furore maintenance, repair and replacement of Private Drives, shall be included in each annual budget of the Corporation adopted pursuant to Paragraph 16(k). 6. Construction of Residences. (a) Size of Residence. Except as otherwise provided herein, or in a Supplemental Declaration, no ReSidence may be constructed on any Lot unless such Residence, exclusive of open porches, attached garages.and basements, shall have a gross floor area equal to or greater than the square footage specified in the Building Guidelines applicable to the Lot as of the date construction of the Residence on a Lot pursuant to an approved Lot Development Plan, the minimum gross floor area for a Residence on such Lot may not be increased by the Architectural Review Board without the written consent of the then Owner of such Lot. Co) Building Guidelines. Each Owner shall at all times comply with the requirements of the Building Guidelines applicable to such Owner's Lot. (c) Temporary_ Structures. No trailer, shack, tent, boat, basement, garage or other outbuilding may be used at any time as a dwelling, temporary or permanent, nor may any structure of a temporary character be used as a dwelling. (d) Building Location and Finished Floor Elevation. No building may be erected'between the building line shown on a Plat and the front'Lot line, and no structure or part thereof(exclusive of open areas or terraces, unenclosed porches not more than one story high, fireplace chimney and architectural features that project no more than two (2) fee) may be built or erected nearer to any side or rear Lot line than permitted by the Building Guidelines. A minimum firfished 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 firfished floor elevations. In the even of consolidation of lots on a building site, as referenced in Paragraph 16(a), the yard dimensions, required by the Zoning Ordinance and the Building Guidelines shall be applied to the consolidated building site and setbacks shall be measured from the exterior Lot lines of the consolidated building site. (e) Driveways. and maintained dust flee. All driveways shall be paved with either concrete or asphalt (f) Yard Lights. If street lights are not installed in the Tract, then each Owner shall install and maintain in.operable condition a pole light on the Lot at a location, having a height and of a type, style and manufacture approved by the Architectural Review board prior to the installation thereof. Each such. light fixture shall also have a bulb of a wattage approved by Architectural Review Board to insure uniform illumination on each Lot and shall be equipped-with a photo electric cell or similar devise 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. (h) Construction and Landscaping. All building Activity shall be undertaken and completed strictly in accordance with the Building Guidelines and 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 if such completion occurs between April 1 and October 15; otherwise prior to May 1. Unless a delay is caused by strikes, war, court injunction or acts of God, construction of a Residence on a Lot shall be completed within one (1) year after the date of commencement of the building process. 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 complete construction of a Residence upon the Lot within the time period specified herein. For the purposes of this subparagraph (h), construct/on of a Residence will be deemed "completed" when the exterior of the Residence (including but not limited to the foundation, wails, roof, windows, entry doors, gutters, downspouts, exterior trim, paved driveway, landscaping and yard light) has been completed in conformity with he 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 of a type, color and manufacture approved bythe 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 operation by a regulated public utility or a municipality (shall be installed or maintained on any Lot 0c) Water Systems. No private or semi-private water supply system my 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 e.,;tablish, maintain, and use an irrigation water well on his Lot as long as the well does not adversely affect the normal pool level of a Lake or Pond. Domestic water service to the Tract will initially be provided by IWC Resources, Inc. Tap-on or connections charges for such service are established in IWC Resources, Inc.'s tariff on file with the Indiana Utilities Regulatory Commission and must be paid prior to connection. IWC Resources, Inc.'s rules and regulations require a refundable deposit to be made prior to connection by a Lot Owner to the water distribution system operated by IWC Resources, Inc. (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 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 may be included in a legal drain established by the Drainage Board. In such event, each included Lot will be subject to assessment by the Drainage Board for the costs of maintenance of the portion of the Drainage System included in such legal drain, which assessment will be a lien against the Lot. The elevation of a lot shall not be changed so as to affect materially the surface elevation or grade of surrounding Lots. 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. (m) Accessory_ Buildings. No mini-barns, storage shed or other accessory building or structure Other than gazebos shall be permitted on any Lot. .(n) Pools. No above ground swimming pool, other than a children's wading pool, shall be permitted on any Lot. (o) Basketball Goals. No basketball goal shall be placed or maintained in front of the front building elevation of a Residence or within the right-of-way of any street. Unless the Architectural Review Board establishes a policy establishing other specifications, backboards of all basketball goals shall be of a translucent material such as fiberglass or Lexan and attached to a black pole or similar type of'post. The location of a basketball goal on the Lot is subject to approval of the Architectural Review Board if it would be visible from a public fight-of-way adjoining the. Lot. (p) Geothermal Systems. system shall be installed on a Lot. No open loop geothermal heating and cooling 7. Maintenance of Lots. (a) Vehicle Parking. No recreational vehicle, motor home, truck which exceeds 4 ton in weight, trailer, boat or disabled vehicle may be parked or stored overnight or longer on .any Lot in open public view. Co) ~. Except for such signs as Declarant may in its absolute discretion display in connection with the development of Bella Term and the sale of Lots therein, such signs as may be located on the Community Area and such signs as may, with the consent of Declarant, be displayed by a Designated Builder to advertise the property during conslruction and sale of Residences and the maintenance of model homes, no sign of any kind shall be displayed to the public view on any Lot except that one sign of not more than four (4) square feet may be displayed at any time for the purpose of advertising the property for sale or for rent. (c) Fencing. Except to the extent otherwise provided /n the Building Guidelines, 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 par 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. 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 limitation on (or prohibition of) the installation of fences in the rear yard of a Lot and along the bank of any Lake or Pond. 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 comer lot within the triangular, area formed by the street property lines 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 perm/tted 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 Lit, and shall keep his Lot seasonably clear from such unsightly growth, at a/1 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 anyfl~g 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 mater/als shall be kept clean and sarfitary. (g) An/mals. 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 designated by the board of Directors may be kept provided that they are not kept, bred or maintained for any commercial purpose. The owners of such penuitted pets shall confine them to the 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 therefore would blow upon any other Lot and, then, only in acceptable incinerators and in compliance with all applicable legal requirements. (i) Antennas and Receivers. Except as otherwise required by law, no satellite receiver, down-link or antenna which is visible from a public way or from any other Lot, and no satellite dish greater than eighteen (18) inches in diameter 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 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, nor shall it give its. consent to the installation of any other exterior antenna unless all Owners of Lots with 200 feet of the Lot upon which the proposed antenna would be erected consent in writing to the installation thereof. (j) Exterior Lights. No exterior lights shall be erected or maintained bem, een the building line and rear lot line so as to shine or reflect directly upon another Lot. (k) Electric Bug Killers. Electric bug killers, "zapper" and other similar devices shall not be installed at a location or locations which will result in the operation thereo.f becoming a nuisance or annoyance to other Owners .and shall only be operated when outside activities require the use thereof and not continuously. (I) Air Conditioners. No room air conditioning unit shall 'be installed so as to protrude from any structure located on a Lot (including but not limited to the window of any Residence or garage) if the same would be visible from a public way, a Community Area or any other Lot; provided, however, that this Restriction shall not apply to central air conditioning units . Bella Terra Homeowners Association, Inc (a) Membership. Each Owner shall automatically be a Member and shall enjoy the privileges and be bound by the obligations contained in the Articles and By- Laws.. If a Person would realize upon his security and become an Owner, he shall then be subject to all the requirements and limitations imposed by this Declaration on other Owners, including those provisions with respect to the payment of Assessments. Co) Powers. The Corporation shall have such powers as are set forth in this Declaration, any Supplemental Declaration and the Articles, together with all other powers that belong to it by law. (c) members. Classes of Members. The Corporation shall have a single class of (d) Voting and Other Rights of Members. The voting and other rights of Members shall be as specified in the Articles and By-Laws. (e) Reserve for Replacements. 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, repairs, renewal and replacement of.the Community Area. In determining 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 lending 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 obligation of, or fully guaranteed as to principal by, the United States of America. Prior to the Applicable Date, fimds from the Reserve for Replacements may be withdrawn and applied at the direction of Declarant to meet the cost of periodic maintenance, repairs, renewal or' replacement of the community Area. (f) Maintenance Standards. In each instance in which this Declaration or a Supplemental Declaration imposes on the Corporation a maintenance obligation with respect to the Community Area or designated part thereof in good condition, order and repair substantially comparable to its Condition when originally conslructed, installed or planted and compatible in appearance and utility with a first-class residential community. Grass, trees, shrubs and other planting located on the Community Area for which the Corporation has maintenance responsibility shall be kept neatly cut, cultivated or tr/mmed as reasonably required and otherwise maintained at all times in good and sightly condition appropriated to a first-class residential community. (g) Insurance, Taxes and Utilities. The Corporation shall maintain public liability and casualty insurance in prudent amounts insuring against risk of loss to the corporation on account of injury to person or property and damage to property owned by the Corporation and. shall pay all taxes assessed against such property and all utility charges incurred with respect to Community Area a which the corporation has maintenance responsibility. (h) 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 (other than Declarant)have given their prior written approval, the Corporation, the Board of Directors and the Owners may not: (i)except as authorized by Paragraph 18(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 lease one hundred percent (100%) of the insurable vale (based on current replacement cost);' (iii) use hazard insurance proceeds for losses to any Community Area for other than the repair, replacement or reconsmaction of the Community Area; (vi)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 perta/ning 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. (i) 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 by operation of law be added to the properties, rights and obligations of the Corporation as a surviving corporation pursuant to a merger. The surviving or consolidated corporation may administer the covenants and restrictions established by this Declaration within the Tract together with the covenants and restriction established by this Declaration within the Tract together with the covenants and restrictions established upon any other properties as one scheme. No other merger or consolidation, however., shall effect any revocation, change or addition to the covenants established by this Declaration within the Tract except as hereinafter provided. 9. Assessments (a) Creation of the Lien and Personal Obligation of Assessments. Declarant hereby covenants, and each Owner of any Lot by Acceptance of a deed thereto, whether or not it shall be so expressed in such deed, is deemed to covenant and agree to pay to the Corporation the following: (1) General Assessments, (2) Community. Area Irfitial 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 a hereinafter provided. If two (2)or more lots originally shown on a Plat are consolidated as a single Lot by v/tree of partial vacation of a Plat, or the construction th.ereon of a Residence, some part of which extends over a Lot line, or if a Lot is divided by conveyance of portions thereof to owners of adjacent Lots, then, in any such events, so long as the consolidated or divided Lot is used in its entirety by one or more Owners of contiguous Lots, the vacated or divided Lot(s) shall cease to be Lot(s) for purposes of Assessments under this Paragraph 9, and the consolidated Lots shall constitute one (1) Lot for purposes of Assessments under this Paragraph 9. 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. (1) Lots Generally. Subject to subparagraph (g) below, each Residential Lot. shall be assessed at a uniform rate Without regard to whether a residence or other improvements have been constructed on the Lot, the Corporation shall waive with respect to such undeveloped Lot that part of any Assessment that is attributable to services (such as trash removal) that are provided only with respect to improved Lots. (2) Lots Owned by Declarant. The Corporation shall assess' no Lot owned by Declarant 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. (3) Change in Basis. The basis for assessment may be changed upon recommendation of the unanimous vote of the Board of directors if such change is approved by (i) two-th/rds (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 Members duly called for this purpose. (iii) Method of Assessment. By a vote of a m~ority 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 mount sufficient to meet the obligations imposed by this Declaration 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. The cost of maintaining, operating, restoring or replacing the community Area has been allOcated in this Declaration among Owners of Lots on the basis to the location of the lands and improvements constituting the Community Area and the intended use thereof. In determining the General Assessment, costs and expenses which in accordance with the provisions of this Declaration are to be borne by all Owners shall first be allocated 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. date 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), there shall be due and payable to the Corporation by the Owner of such Lot the sum of Five Hundred Dollars ($500.00) which shall be deposited in the reserve for Replacements maintained by the Corporation. (d) Parcel Assessments. (i) .P_urpose 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 annuals parcel assessment for each Parcel, the date(s) such 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 o.f (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, provided 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 (13) defraying any Maintenance Costs incurred-in satisfying any requirements imposed on the Corporation by a Supplemental Declaration relating to a Parcell (e) Architectural Control Assessment. If any Owner fails to comply with the Building Guidelines or other requirements for construction of improvements, landscaping and other Building Activities or maintenance of a Lot (including but not limited to the filing of a Lot Development Plan) or any restrictive covenant or restriction specified in a supplemental Declaration for the Parcel in which such Owner's Lot is located and/or the provisions of paragraphs l 7 or 19 of this Declaration, then the Corporation may levy against the Lot owned by such Owner an Assessment in an amotmt determined by the Board of Directors which does not exceed the great of (i) Two Hundred Fifty Dollars ($250.00) for each day that such failure continues after written notice thereof is given by Declarant or the Corporation to such Owner or (ii) One Hundred Thousand Dollars ($100,000.00). 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 or, 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. (f) 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 constmctiork repair, or replacement of a capital improvement upon the Community Area, including fixtures and personal property relating thereto, provided that any such Assessment shall have the assent of the Declarant and of a majority of the votes of the Members whose Lots are subject to assessment with respect tot 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 General Assessments. The General Assessment shall commence with respect to assessable Lots within a Section on the first day of the month following conveyance of the first Lot in the Section to an Owner who is not the Declarant. The initial General Assessment on any assessable Lot shall be adjusted according to the days remaining in the month in which the Lot became subject-to assessment. Notwithstanding the foregoing, if an Owner owns more than two (2) unimproved Lots, the General Assessment shall not commence with respect to such unimproved Lot(s) until the earlier of (i) the date the Owner commences construction of' a Residence, thereon or (ii) the first day of the sixth month following the date the Owner acquired title to the Lot(s). (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 lawfi~ action to collect a delinquent Assessment plus any expenses or costs, including attorneys' fees, incurred by the Corporation in collecting such Assessment. If the Corporation has provided for collection of any Assessment 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 provided 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 no. 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 office 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 Bud~_et. 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. 10. Architectural Control. (a) The Architectural Review Board. The Board of Directors shall appoint an Architectural Review Board consisting of three (3) or more Persons as provided in the By-Laws. Co) Purpose. The Architectural Review Board shall regulate the external design, appearance, use, location and maintenance of the Tract and of improvements thereon in such manner as to preserve and enhance values, to maintain a harmonious relationship among structures, improvements and the natural vegetation and topography and to assure compliance with the Building Guidelines (c) Conditions. Except as otherwise expressly provided in this Declaration or a SUpplemental Declaration, no improvements, alterations, repairs, change of colors, excavations, changes in grade, planting or other work that in any way alters any Lot or 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 (including, but not limited to (i) construction, erection or alteration of any Residence, other building, fixture, equipment, fence, wall, deck, swimming pool, ball court, patio, parking area, or other structure on a Lot, or(ii) any plantings, other landscaping or exterior lighting on a Lot or (iii) the installation or alteration of any signage on a Lot) shall be made or done without the prior approval by the Architectural Review Board of a Lot Development Plan therefore. Pr/or to the commencement by any Owner other than Declarant or a Designated Builder of any Building Activity, a Lot Development Plan with respect thereto shall be submitted to the Architectural Review Board, and no Building Activity shall be commenced or continued by any Person other than Declarant or a Designated Builder without the prior wr/tten approval of the Architectural Review Board of' a Lot Development Plan relating to such Building Activity. Such approval shall be in addition to, and not in lieu of, all approvals, consents, pemfits and/or variances required by law fi'om governmental authorities having jurisdiction over Bella Terra, and no Owner shall undertake any construction activity within Bella Terra 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 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 den/ed. A decision of the Architectural Review Board (including a den/al resulting from the failure of such Board 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-thirds (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, landscaping, lighting, fencing, recreation facility and signage design guidelines and standards as it may deem appropriate to achieve the purpose set forth in subparagraph Co) to-the extent that such design guidelines and standards are not in conflict with the specific provisions of this Declaration or, prior to the Applicable Date, the Building Guidelines established by Declarant. Any such guideline or standard may be appealed to the Board of Directors which may tenn/nate or modify such guideline or standard by a two-thirds (2/3) vote of the Directors then'serving. The Building Guidelines may establish different standards and requirements for various Lots based on the size and location of such Lots and the improvements to be located thereon. (f) Application of Guidelines and Standards. The Architectural Review Board shall apply the Building Guidelines in a fair, un/form and reasonable manner consistent with the discretion inherent in the design review process. In disapproving any Lot Development Plan, the 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 to the Board if resubmitted. (g) Desi~m Consultants. The Architectural Review Board may utilize the services of architectural, engineering and other Persons possessing design expertise and experience, in evaluating Lot Development Plans. No presumption of any conflict of interest or impropr/ety shall be drawn or assumed by virtue of the fact that any. of such consultants are.affiliated w/th Declarant or a Designated Builder or 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 Building Guidelines, a Supplemental Declaration relating to the Parcel in which such Owner's Lot is located and/or the provisions of this Paragraph 10, 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 reasonable require) to remove from the 'Owner's Lot any improvements, landscaping or lio~hting constructed and/or installed prior to the submission or approval of' a Lot Development Plan (or constructed and/or installed prior to the submission or approval of a Lot Development Plan (or constructed and/or installed in violation at a previously approved Lot Development Plan) to the extent any such previously constructed and/or installed improvement, landscaping or exterior lighting 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 the Building Guidelines, a Supplemental Declaration or Paragraphs 17 or 19 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 the Building Guidelines,. a Supplemental Declaration or Paragraphs 17 or 19 of this Declaration and such violations remains uncured. . (i) Exercise of Discretion. Declarant intends that the.members of the Arckitecmral Review Board exercise discretion in the performance of their duties consistent with the provisions of 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, not any member or agent thereof, not the Declarant shall be responsible in any way for any defects in any plans, specifications or other mater/als submitted to it, not 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. 11. 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) Densi _ty 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 the Declaration, shall be responsible for the exclusive management and control of the Community Area and all improvements thereon (including fumis~gs and equipment related thereto.), and shall keep the Community Area in good, clean, attractive and sanitary-condition, order and repair (d) 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 family, or any other Person permitted by this Declaration to use such Community Area, said Owner or Person authorized the Corporation to repair said damaged area; the Corporation shall repair 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 ctiscretion of the Corporation. In the even of damage or destruction by said Owner or any of his guests, tenants, licensees, agents or member of his family an mount equal to the costs incurred to effect such repairs shall be assessed against such owner as a Special Assessment and shall constitute a lien upon ~he Lot of said Owner. In the event of damage or destruction by any other Person, said Person shz,[1 immediately reimburse the Corporation for the costs incurred to effect such repairs upon receipt thereto. (i) Conveyance of Title. Declarant may retain the legal title to the Community Area or any portion thereof during the course of development of the tract, but notwithstanding any provision herein, Declarant's reserved rights set forth in Paragraph 18 (a), it shall convey the Community Area to the Corporation, free and clear of all liens and financial encumbrances except the lien of taxes not yet payable, not later than the. Applicable date. Owners shall have ail the rights and obligations imposed by this Declaration with respect to such Community Area prior to conveyance. 12. Use of Tract. (a) Protective Covenants. (i) Land Use. A Lot may be used only for residential purposes, and only one Residence may be constructed thereon. No portion of any Lot may be sold or subdivided such that there will be thereby a greater number of Residences in BeLla Terra than the number of original Lots depicted on the Plats. Notwithstanding any provision in the applicable zoning ordinance to the contrary, no Lot may be used for any "Special Use" that is not clearly incidental and necessary to single-family dwellings. 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, kind or description shall be erected, placed, or penuitted to remain On any Lot advertising a permitted home occupation. (ii) Nu/sance. No nuisance shall be permitted to exist or operate upon any Lot so as to be detrimental to any other Lot in the vicinity 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 17Co) and to supplement any covenants or restrictions set forth herein or ina 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 lines, trash containers, and planting, maintenance and removal of vegetation on the tract. The Arckitecmral Review Boards may adopt general roles 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 heahng for which dues 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 Directions. Ail. genera/ 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 roles and regulations adopted pursuant to clause (iii) if the Architectural review Board can show good cause and acts in accordance with adopted guideline an procedures. Maintenance of Tract. To the extent that exterior maintenance (i) Drainage Easements. (DE) are credited to provide paths and courses for area and local storm drainage, either overland or in adequate underground conduit, to serve the needs of Bella Terra 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 reconsmaction 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 regulated utility or governmental agency having jurisdiction over any storm and sanitary waste disposal system which may be designed to serve Belia Terra for the purpose of installation and maintenance of sewers that are a part of said system. (iii) Utili_ty Easements. (UE) are created for the use of Declarant, the Corporation and ail public utility companies, not including transPortation comparfies, for the installation and maintenance of mains, ducts, 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, at their election, for the planning and maintenance of trees, shrubs and other plantings and the installation and maintenance o-f fencing. (vi) Water Access Easements. (WAE) are created for the use of Declarant, the Corporation and the Drainage Board for the purpose of gain/rig access to the Lake, the Ponds and the Drainage Facilities in the course of maintenance, repair or replacement of any thereof. (vii) Non-Access Easements. (NAE) are created to preclude access from certain Lots to abutting rights-of-way across the land subject to such easements. (viii) Access Easements. (.AE) are created to provide access over and across Private Drives by Declarant, the. Corporation, public utility companies and the Owners of Lots abutting the Private Drive to which the Access Easement pertains, and for the purposes of' installation and maintenance of the Private Drives by Declarant and the Corporation. All easements mentioned herein include the fight 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 or Private Drive and a sidewalk installed by or at the direction of Declarant (and replacements thereof) shall not be deemed a "structure" for the purpose of this Restriction. (b) General Easement. There is hereby created a blanket easement over, across, through and under the Tract for ingress, 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 fumis~g 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. (d) Drainage Board Easement. An easement is hereby created for the benefit off and granted to, the~ Drainage Board to enter the Tract and all Lots therein to the extent necessary to exercise its rights with respect to any legal drain constituting a part of the Drainage System. (e) Crossing Under~ound Easements. Easements utilized for underground service may be crossed by driveways, walbvays, Water Access Easements, 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, Water Access Easements or Community Area Access Easements, and neither Declarant not any utility company 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 gradings 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 ~ve reasonable notice of its intention to take such action to all affected Owners, unless in the opinion of Declarant an emergency which precludes such notice. (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. 13. Use of Lots During Construction. (a) By Declarant. Notwithstanding any provisions to the contrary contained herein or in any other in_smanent 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 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 Center during the period that is engaged in the sale of Lots in Bella Terra. 14. Enforcement. The Corporation, any Owner or Declarant shall ha.ve 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 that Person of the right to do so thereafter, or an estoppel of that Person to assert any right available to him upon the occurrence, recurrence or continuation of any violation or violations of the Restrictions. In any action to enforce this Declaration, the Person seeking enforcement shall be entitled to recover all costs of enforcement, including attorney's fees, if it substantially prevails in such action. 15. 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 fights of the Members acting as individuals or in affiliation with other members or groups as long as they do not employ the resources of the corporation or identify themselves as acting in the name, or on the behalf, or the Corporation. 16. 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 Community .~xa-e; mergers and consolidations of Sections within the Tract or of the Tract with. other real estate; mortgag/ng of the Community Area; amendment of this Declaration and any Supplemental Declaration; and changes in the basis for assessment or the mount, use and t/me of payment of the Community Area In/tial Assessment. 17. ~ Mortgages. (a) Notice to Corporation. Any Owner who places a first mortgage lien upon his Unit, 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 ma/ntained by the Secretary and any notice required to be ~ven 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 effective ~ven 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 requ/red 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 Unit 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, (v) Any proposed amendment of the Organizational Documents effecting 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 are restriced. (c) Effective Date. Any amendment shall become effective upon its recordation in the Office of the Recorder of Hamilton CountL Indiana. 18. Interpretation. The underlined titles preceding the various paragraphs and subpara~aphs of this Declaration are for convenience of reference only, and none of them shall be used as an aid to the construction of any provision of this Declaration. Wherever and whenever applicable, the singular form of any word shall be taken to mean or apply to the plural, and the masculine form shall be taken to mean to the feminine or to the neuter. 19. Duration. The forgoing covenants and restrictions, are for the mutual benefit and protection of the present and furore Owners, the Corporation, and Declarant, and shall nm with the land and shall be binding on all parties and all Persons claiming under them until January 1, 2025, 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. 20. Severabilit¥. 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 runn/ng with the land, that holding shall be without effect upon the validity, enforceability or "running" quality of any other one of the Restrictions. 21. Non-Liability of Declarant. Declarant shall not have any liability to an Owner or to any other Person with respect to drainage on, over or under a Lot: Such drainage shall be the respons/bility 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 no duty of, or warranty by, Declarant shall be implied by or inferred from any term or provision of this Declaration. 22. ComplianCe with the Soil Erosion Control Plan. (a) The Plan. Declarant has established and implemented and erosion control plan pursuant to the requirements and conditions of Rule 5 of 327 IAC 15, Storm Water Run-Off Associated with Construction Activity. In connection with any construction activity on a Lot by an Owner, its contractor or the subcontractors of either, Owner shall take all erosion control measures contained in such plan as the plan applies to "land disturbing activity" undertaken on a Lot and shall comply with the terms of Declarant's general permit under Rule 5 as well as all other applicable state, county or local erosion control authorities. All erosion control measures shall be performed by personnel trained in erosion control and shall meet the design criteria, standards, and specifications for erosion control measures established by the Indiana Department of Environmental Management in guidance documents similar to, or as effective as, those outlined in the Indiana Handbook for Erosion Control in Developing Areas from the Division of Soil Conservation, Indiana Department of Natural Resources. Co) Indemnity. The Owner of each Lot shall indemnify and hold Declarant brainless from and against all liability, damage, loss, claims, demands and actions of any nature whatsoever which may ar/se out of or are connected with, or are claimed to ar/se out of or be connected with, any work done by such Owner, its contractor and their respective employees, agents, or subcontractors which is not in compliance with the erosion control plan implemented by the Declarant. IN TESTIMONY WHEREOF, Declarant has executed this Declaration as of the date set forth above. BP DEVELOPMENT LLC By Brad Walker STATE OF INDIANA ) ) SS: COUNTY OF HAMILTON ) Before me, the undersigned, a Notary Public in and for said County and State, personally appeared Brad Walker, the General Manager of BP Development LLC., an Indiana limited partnership, who acknowledged the execution of the above and foregoing Declaration of Covenants and Restrictions for and on behalf of said partnership. WITNESS my hand and Notarial Seal this day of ,2 004. Notary Public Residing in County (printed signature) MY Commission Expires: