HomeMy WebLinkAboutCovenants Condition Restriction
Section 1.18 "Special Use" shall mean any use defined or identified in any applicable zoning
ordinance as a "Special Use".
Section 1.19 "Trail System" means paths or trails so designated by the Board and located in
a Common Area.
ARTICLE n
CHARACTER OF mE DEVELOPMENT
Section 2.1. In General. No structure shall be erected, placed or permitted to remain upon
any Lot except a Residence. All Property located within a plat which has not been designated by
numbering shall be used in a manner determined by the Declarant. Lots may be used only for single-
family residential purposes and only one Residence may be constructed thereon. No portion of any
Lot may be sold or subdivided such that there will be thereby a greater number of Residences in the
Property than the number of Lots depicted on the Plat. Notwithstanding any provision in the applicable
zoning ordinance to the contrary, no Lot may be used for any "Special Use" that is not clearly
incidental and necessary to single family dwellings.
Section 2.2. Other Restrictions. All Property shall be subject to the easements, restrictions,
and limitations of record appearing on a Plat and amendments thereto, on recorded easements, and
rights-of-way, and also to all governmental zoning authority and regulation affecting the Property, all
of which are incorporated herein by reference.
ARTICLE m
EASEMENTS
Section 3.1 Designated Easements. The following are easements designated or to be
designated, in the Declarant's sole discretion, upon a plat:
(A) Designated Drainage"! Utility"! and Sewer Easements. There are strips of ground
designated on the Plat as drainage easements, utility easements, sewer easements, sanitary sewer
easements and storm sewer easements, or any combination thereof, which are hereby reserved to the
appropriate governmental entities, public utilities, and private utilities for the installation and
maintenance of swales, ditches, pipes, drains, electric lines, gas lines, telephone lines, fibre optic cable,
high speed internet lines, sanitary sewers, manholes, detention and retention areas or other drainage
facilities. Purchasers of Lots in this subdivision shall take title subject to such easements hereby
created and subject at all times to the rights of proper authorities to service and maintain such drainage
facilities and easements, and no permanent structure of any kind and no part thereof, except fences
which do not retard or impede the flow of drainage water and which are approved by any entity to
which the easement is dedicated shall be built, erected or maintained on said drainage easements,
except by the Declarant or its assigns. It shall be the responsibility of the Association and the Owners
of the areas enclosed within such easements to maintain such areas in such conditions that the flow of
storm drainage waters on, across and from said areas shall not be impeded, diverted or accelerated.
Such use for storm water movement or retention or detention is hereby declared to be an easement and
servitude upon said land for the benefit of the Owners of other land included within the Plat, upstream
or downstream, affected by such use and for any proper governmental agency or department or any
private or public utility. All proper governmental agencies or departments and public and private
utilities are hereby given the right to obtain access to such areas to perform maintenance and to
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perform such maintenance as may be necessary to protect that easement and servitude rights. It shall be
the responsibility of the Association and the Owner of any Lot or parcel of land within the Plat to
comply at all times with the provisions of the drainage plan as approved for the applicable Plat by the
appropriate governmental agency or department and the requirements of all drainage permits for such
Plat issued by those agencies. Failure to so comply shall operate as a waiver and release of the
Declarant, the developer, or their engineers and agents from all liability as to damage caused by storm
waters or storm drainage.
Further, there are easements and servitudes upon the land within the Plat in favor of surface
water runoff along natural valleys and drainage channels running to Owners of other land contained
within the Plat, upstream and downstream. It shall be the responsibility of the Association and the
Owners of these natural valleys and channels to use their land and maintain said natural valleys and
channels in such manner and condition that the flow of storm drainage waters on, across, from and to
such areas shall not be impeded, diverted or accelerated.
(B) Designated Mounding"! Landscaping"! and Screening and Sign Easements. Any strips of
grounds shown or designated on the Plat for landscaping including, but not limited to, landscape
easements, landscape maintenance easements, and/or landscape maintenance access easements are
hereby reserved unto Declarant, during the Development Period, and, thereafter, unto the Association,
for the purposes of (i) providing signs which either advertise the Property and the availability of Lots
or identify the Property or, (ii) installing landscaping, mounding, and screening. Declarant reserves
unto itself during the Development Period and thereafter unto the Association, the exclusive and sole
right to erect signs and install landscaping, mounding, and screening within these strips of ground.
Notwithstanding anything in this Declaration to the contrary, no planting shall be done, and no hedges,
walls, fences or other improvements shall be erected or maintained in the area of such easements,
except by the Declarant during the Development Period, and thereafter by the Association.
Furthermore, notwithstanding anything in this Declaration to the contrary, no planting shall be done,
and no hedges, walls, fences, structures, or other improvements shall be erected between (i) any
landscape easement or landscape maintenance easement, and (ii) any perimeter roadway, public
highway or right-of-way along the perimeter or boundary of the Property, except by the Declarant
during the Development Period and thereafter by the Association.
(C) Easement Work. Notwithstanding any architectural approval under Article VI below,
during the course of any maintenance, service, repair or work upon any easement, the Declarant, the
Association, any private utility, any public utility, and/or any governmental entity shall have the right
and the authority, without any obligation or liability whatsoever to any Owner, to remove, damage, or
destroy any fence or other structure or landscaping built, erected, maintained or planted in any
easement described in Section 3.1 (A) above and without any obligation of replacement.
Section 3.2 General Drainage"! Utility"! Sewer and other Development Easements. The
following rights reserved in this Section shall not be exercised, after the conveyance of any Lot, in a
manner that (i) unreasonably and adversely affects any Residence or portion thereof located upon such
Lot or the Owner's use or enjoyment thereof, or (ii) unreasonably restricts the rights of ingress and
egress to such Lot. The following rights and easements reserved by Declarant in this Section shall run
with the land, and Declarant's right to further alter or grant easements shall automatically terminate and
pass to the Association one (1) year after Declarant shall have conveyed the last Lot within the
Property .
(A) Declarant hereby reserves unto itself during the Development Period, and thereafter
unto any public or private utility, a general easement ("Drainage, Utility and Sewer Easement") for
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drainage, utility and sewer purposes in, on and over all of the Common Area and any Lot, so as to
permit the installation and allow to be maintained all electrical, telephone, water, gas, sanitary and
storm sewer, television (including but not limited to cable and/or satellite) transmission facilities,
security systems and other utility services (including all necessary lines, pipes, wires, cables, ducts,
antennae and other equipment and facilities) to serve any Residence. Any Drainage, Utility and Sewer
Easement shall include all areas of the Property outside any Residence, with the exception of any areas
covered by chimneys, or patios. Improvements or permanent structures installed within the Common
Area are subject to the rights (including the right to remove where reasonably necessary without duty
of replacement or reimbursement) of the Declarant and any public or private utility to construct,
maintain, repair or remove any necessary facilities. By virtue hereof: Declarant reserves the right to
install a lake( s) or pond( s) on any Common Area. The rights hereunder and easements hereby reserved
survive the conveyance, by the Declarant to the Association, of any Common Area. This easement
shall be in addition to any easement defined upon a Plat as a drainage, sewer, utility, cable, landscape,
sign, transmission, flowage or similar type easement.
(B) Declarant reserves unto itself during the Development Period, and thereafter unto the
Association, an easement ("Lake Easement") and right-of-way in and to any Lake Area (s) or areas
now or hereafter shown on the Plat as a "Block", "Common Area", or "Lake" or any other Common
Area within the Property used as a water retention or detention area, or on which a Lake now exists or
is later constructed, for the purpose of fulfilling any maintenance obligations set forth in this
Declaration and/or establishing and maintaining proper surface water drainage throughout the Property,
including dewatering or aquatic maintenance, and an easement of ingress and egress through so much
of the remainder of the Property as is reasonably necessary or appropriate, to perform such actions as
Declarant or the Association deem necessary or appropriate, for the purpose of establishing and
maintaining proper surface water drainage throughout the Property, which such actions shall include
the construction, repair and maintenance of retention and detention ponds or lakes in accordance with
the requirements of applicable law and of all governmental agencies having jurisdiction (without
undertaking any obligation or duty to exceed such requirements).
(C) Declarant reserves unto itself during the Development Period, and thereafter unto the
Association, the right and an undefined sign and facilities easement ("Sign and Facilities Easement") to
install, erect, construct and maintain an entryway sign or signs, directional signs, advertising signs
advertising the Property or the Lots therein, lighting, walkways, pathways, fences, walls and any other
landscaping, architectural and recreational features or facilities considered necessary, appropriate,
useful or convenient, anywhere upon the Property (except upon any Lot after the first conveyance
thereof). Any such signs shall comply with any applicable zoning requirements and all such facilities
shall be maintained by the Association as a part of its Common Area maintenance obligations.
(D) Declarant reserves unto itself during the Development Period, and thereafter unto the
Association, the full right, title and authority to:
(i) Relocate, alter or otherwise change the location of any Drainage, Utility and
Sewer Easement, Lake Easement, and/or Sign and Facilities Easement, or any facility at any
time located therein or thereon;
(ii) Grant such further easements, licenses and rights-of-way, temporary or
permanent, exclusive or non-exclusive, surface or otherwise, as Declarant may deem necessary
or appropriate, for ingress and egress, utility and similar purposes on or within any portion of
the Property, for the benefit of the Property or any portion thereof; and,
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Section 5.2 Address Identification. The numbers representing the address of each Residence
will be of a uniform appearance and will be displayed in a uniform location and manner, as determined
by the Committee.
Section 5.3 Lighting. All homes will have two dusk to dawn lights located on the sides of the
garage doors. Street lights may be installed by Declarant in the utility easements on Lots and in the
Common Areas. Street lights shall be operated and maintained by the Association. The Association
reserves the right to remove street lights deemed no longer necessary by the Board of Directors.
Section 5.4 Temporary Structures. No trailer, shack, tent, boat, basement, garage or other
outbuilding may be used at any time as a dwelling, temporary or permanent, nor may any structure of a
temporary character be used as a dwelling.
Section 5.5 Driveways. All driveways in the Property shall be concrete in material.
Section 5.6 Water Systems. Each Owner shall connect to the water main maintained by a
private or public water utility to provide water for domestic use on the Lot and shall pay all connection,
availability, or other charges lawfully established with respect to connections thereto.
Section 5.7 Drainage. In the event storm water drainage from any Lot or Lots flows across
another Lot, provision shall be made by the Owner of such downstream Lot to permit such drainage to
continue, without restriction or reduction, across the downstream Lot and into the natural drainage
channel or course, although no specific drainage easement for such flow of water is provided on the
Plat. To the extent not maintained by the Drainage Board, "Drainage Easements" reserved as drainage
swales shall be maintained by the Owner of the Lot upon which such easements are located such that
water from any adjacent Lot shall have adequate drainage along such Swale. Lots within the Property
may be included in a legal drain established by the Drainage Board. In such event, each lot in the
Property will be subject to assessment by the Drainage Board for the costs of maintenance of the
portion of the drainage system and the lake control structures included in such legal drain, which
assessment will be a lien against the Lot. The elevation of a Lot shall not be changed so as to
materially affect the surface elevation or grade of surrounding Lots. Perimeter foundation drains and
sump pump drains shall be connected whenever feasible into a subsurface drainage tile. Down spouts
and drains shall be designed to disperse runoff for overland flow to street or swale collection systems.
Each Owner shall maintain the subsurface drains and tiles located on his Lot and shall be liable for the
cost of all repairs thereto or replacements thereof.
Section 5.8 Signs. Except for such signs as Declarant may in its absolute discretion display in
connection with the identification of development of the Property and the sale of Lots therein, no sign
of any kind shall be displayed to the public view of any Lot except that one (1) sign of not more than
four ( 4) square feet may be displayed at any time for the purpose of advertising the property for sale, or
may be displayed by a builder to advertise the property during construction and sale.
Section 5.9 Fencing. This subsection is applicable to all Lots except those Lots which are used
for a sales office or model home by the Declarant or a Builder. No fence, wall, hedge, or shrub planting
higher than eighteen (18) inches shall be permitted between the front property line and the front
building set back line except where such planting is part of Residence landscaping approved by the
Architectural Review Committee and the prime root thereof is within six (6) feet of the Residence.
Corner Lots shall be deemed to have two (2) front property lines. Trees shall not be deemed "shrubs"
unless planted in such a manner as to constitute a "hedge". All fencing shall be unpainted cedar, dog-
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eared shadow box on both sides of the fence, unless otherwise approved by the Committee. All fencing
on a Lot shall be uniform in height, style, and color and substantially similar in material. No fence shall
be erected or maintained on or within any Landscape Easement except such as may be installed by
Declarant and subsequently replaced by the Association in such manner as to preserve the uniformity
of such fence. No fence may be erected on a Lot without prior approval of the Committee, which shall
approve or disapprove the location of all fences; provided, however, that all fencing erected on a Lot
must be erected either (i) within six (6) inches of the property line of such Lot, or (ii) more than ten
(10) feet from the property line of such Lot. Owners of Lots adjoining Lots on which a fence is erected
within six (6) inches of the property line shall have the right to connect a fence to the fence on the
adjoining Lot if the new fence satisfies all of the criteria expressed herein and is approved by the
Committee. The Committee may establish further restrictions with respect to fences, including
limitations on (or prohibition of) the installation of fences in the rear yard of a Lot abutting a Lake and
design standards for fences. All fences shall be kept in good repair. No fence, wall, hedge, or shrub
planting, or tree foliage which obstructs sight lines at elevations between two (2) and six (6) feet above
the street shall be placed or permitted to remain on any comer Lot within the triangular area formed by
the Lot lines at the streets and a line connecting points 25 feet from the intersection of said street Lot
lines; and, the same rule shall apply to the intersection of a driveway with a street, in which case the
edge of the driveway pavement shall be substituted for one of the street Lot lines.
Section 5.10 Nuisances. No noxious or offensive activity shall be carried on upon any Lot nor
shall anything be done thereon which may be, or may become, an annoyance or nuisance to the
neighborhood. Violation of any ordinance governing noise, building or lot maintenance, or any other
public nuisance shall be deemed to be a nuisance creating rights in every affected Owner, the
Declarant, and/or the Association, as the case may be, to enforce the provisions hereof against the
offending Owner. Barking dogs shall constitute a nuisance. In the event of successful enforcement by
an Owner, the Declarant, or the Association of the provisions hereof, the offending Owner shall be
liable to the prevailing party for attorneys' fees, court costs, and all other costs and expenses of
litigation and collection in connection therewith.
Section 5.11 Garbage and Refuse Disposal. No Lot shall be used or maintained as a dumping
ground for trash. Rubbish, garbage or other waste shall be kept in sanitary containers out of public
view except not more than 24 hours prior to its removal thereof, when it may be placed at the curb of
the Lot. All equipment for storage or disposal of such materials shall be kept clean and sanitary.
Section 5.12 Livestock and Poultry. No animals, livestock or poultry of any kind shall be
raised, bred or kept on any Lot, except that dogs, cats or other household pets may be kept provided
that they are not kept, bred, or maintained for any commercial purpose. The owners of such permitted
pets shall confine them to their respective Lots such that they will not be a nuisance. Owners of dogs
shall so control or confine them so as to avoid barking which will annoy or disturb adjoining Owners.
Unless permitted by the Board of Directors of the Association, no Owner shall maintain more than two
(2) of the same type (dog, cat, bird) of pet nor more than four (4) total pets; provided, however, that
fish which are located in indoor aquariums and which pose no risk to the public health shall not be
considered pets for the purpose of this restriction. No dangerous or potentially dangerous pets, such as
exotic animals (large wild cats, wolves, alligators, snakes which are poisonous or longer than two feet,
poisonous spiders, etc.) shall be permitted to exist in a Residence or on a Lot without the unanimous
consent of the Architectural Review Committee and the Board of Directors; provided, however, that
the decision of the Board of Directors to permit such animal or animals may be overturned by a
majority vote of the Members at any meeting.
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Section 5.13 Outside Burning. No trash, leaves, or other materials shall be burned upon a Lot
unless the smoke therefrom would not blow upon any other Lot. Owners shall use appropriate
incinerators and shall at all times be in compliance with all applicable legal requirements for outside
burning.
Section 5.14 Antennas and Receivers. No antenna, satellite dish, or other device for the
transmission or reception of radio, television, or satellite signals or any other form of electromagnetic
radiation shall be erected, used or maintained outdoors and above ground, whether attached to a
building or otherwise, on any part of the Property, including Lots, without the written approval of the
Architectural Review Committee, which approval shall not be unreasonably withheld; provided,
however, that any such device may be installed and maintained on any Lot without the necessity of
such written approval if such devices are not merely duplicative of other devices existing on the subject
Lot and if (a) the device is not visible from the neighboring Lots, streets or Common Area; or (b) the
Owner, prior to installation, has received the written consent of the Owners of all Lots who would have
views of the device from their Lots; or (c) the device is virtually indistinguishable from structures,
devices, or improvements, such as heat pumps, air-conditioning units, barbecue grills, patio furniture,
and garden equipment, which are not prohibited by these covenants or Bylaws; or (d) the device is a
satellite dish 1 meter or less in diameter and not affixed to the roof of a residence; or (e) if prohibition
of the installation, use, and maintenance of such device is specifically preempted and superseded by
applicable governmental authority.
Section 5.15 Exterior Lights. Except on Lots on which there is maintained a sales office or
model home by the Declarant or a Builder, no exterior lights shall be erected or maintained between
the building line and rear lot line so as to shine or reflect directly upon another Lot.
Section 5.16 Electric Bug Killers. Electric Bug Killers, "zappers", and other similar devices
shall not be installed at a location or locations which result in the operation thereof becoming a
nuisance or annoyance to other Owners, and shall be operated only when outside activities require the
use thereof and not continuously.
Section 5.1 7 Vacant Lots. It shall be the duty and obligation of the Owner of a vacant Lot to
maintain such Lot and mow the lawn thereof. Declarant and the Association shall have the right, but
not the duty, to enter upon each vacant Lot and to maintain the appearance thereof by cutting weeds,
mowing grass, trimming trees, removing debris, installing erosion control devices, and performing any
other act reasonable under the circumstances. The Owner shall be responsible for payment of all such
expenses upon demand and the Declarant or the Association, as the case may be, shall have a lien on
such Lot for the payment of such expenses, together with attorneys' fees and all other costs and
expenses of litigation and collection which may be incurred in connection therewith.
Section 5.18 Association's Right to Perform Certain Maintenance. In the event that the Owner
of any Lot shall fail to maintain his or her Lot and any improvements situated thereon in accordance
with the provisions of this Declaration, the Association shall have the right, but not the obligation, by
and through its agents or employees or contractors, to enter upon said Lot and repair, mow, clean or
perform such other acts as may be reasonably necessary to make such Lot and improvements situated
thereon, if any, conform to the requirements of these restrictions. The cost incurred by the Association
shall be assessed to the Owner. The Owner shall reimburse the Association within thirty (30) days of
the date on which the Owner is invoiced by the Association. The Association shall have the right to
collect any outstanding maintenance assessments in the manner described in Article XI. Neither the
Association nor any of its agents, employees, or contractors shall be liable for any damage that may
result from any maintenance work performed hereunder.
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Section 5.19 Awnings. Except on Lots on which there is maintained a sales office or model
home by the Declarant or a Builder, or as approved by the Committee, no metal, wood, fabric,
fiberglass or similar type material awnings or patio covers will be permitted anywhere on the Property.
Section 5.20 Diligence in Construction. Subject to inclement weather, every Residence shall
be completed within twelve (12) months after the beginning of such construction or placement. No
improvement which has partially or totally been destroyed by fire or otherwise shall be allowed to
remain in such state for more than three (3) months from the time of such destruction or damage or, if
approval of the applicable casualty insurance is pending, then within three (3) months after such
approval is forthcoming.
Section 5.21 HV AC Units. No heat pumps, air conditioning units or gas meters will be
installed in the front of the Residence.
Section 5.22 Lake and Lake Area(s). Except as otherwise provided, no individual using a
Lake, if any, has the right to cross another Lot or trespass upon shoreline not within a Common Area
owned by the Association, subject to the rights of the Declarant, the Association, their employees,
heirs, successors and assigns as set forth in the Declaration. No one shall do or permit any action or
activity which could result in pollution of any Lake, diversion of water, elevation of any Lake level,
earth disturbance resulting in silting or any other conduct which could result in an adverse effect upon
water quality, drainage or proper Lake management except as provided in the Declaration. A Lake may
not be used for swimming, ice skating, boating, or for any other purpose, except for drainage of the
Property, unless expressly and specifically approved by the Board of Directors in writing and allowed
by law. Lakes and Lake Areas mayor may not exist on the Property, and the reference throughout this
Declaration to Lakes and Lake Areas is made in order to address Lakes and Lake Areas, if any, which
now exist or are later constructed upon the Property. The installation on the Property of any Lake or
Lake Area shall be within the sole discretion of the Declarant, and under no circumstances shall the
Declarant be required or obligated to install any Lake or Lake Area. Only the Declarant and the
Association shall have the right to store items or develop recreational facilities upon any Common
Area owned by the Association adjacent to a Lake.
Section 5.23 Mailboxes. All mailboxes and posts must be approved by the Committee and,
within each Section of the Development, shall be standard as to size, location, post, design, height,
material, composition and colors. The builder upon the initial Lot closing to the homeowner shall
install the initial mailbox for each Lot, which meets the above criteria. The Owner agrees to maintain
and paint said mailbox and post in conformance with all other mailboxes.
Section 5.24 Maintenance of Lots and Improvements. Each Owner shall at all times maintain
the Lot and any improvements situated thereon in such a manner as to prevent the lot or improvements
from becoming unsightly and, specifically, such Owner shall:
(A) Mow the Lot at such times as may be reasonably required in order to prevent
the unsightly growth of vegetation and noxious weeds;
(B) Remove all debris or rubbish from the Lot;
(C) Prevent the existence of any other condition that tends to detract from or
diminish the aesthetic appearance of the Property;
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(D) Cut down and remove dead trees from the Lot; and,
(E) Within sixty (60) days following completion of a Residence, the Owner shall
landscape the lot in accordance with the provisions set forth in this Declaration, weather
permitting.
Section 5.25 Miscellaneous. No clotheslines may be erected on any Lot.
Section 5.26 Outbuildings and Animal Quarters. Any and all forms of outbuildings, including
but not limited to, sheds, storage sheds, pool houses, animal quarters, and play houses, which are not
directly connected to the main house on any Lot are prohibited, unless the same are necessary or
incident to the Declarant's, Builder's or Association's business or activities upon the Property. Animal
quarters or kennels which are connected to the Residence must be approved by the Committee.
Section 5.27 Play Equipment. Children's play equipment such as sandboxes, temporary
swimming pools having a depth of eighteen (18) inches or less, swing and slide sets, and trampolines
shall not require approval by the Committee, provided that (i) such equipment is not more than eight
(8) feet high (to the highest point of the structure) and properly painted and maintained by the Owner
in good repair, (ii) such equipment is located in the rear yard of the Lot between the parallel lines
defmed by extending the side lines of the residence into the rear yard of the Lot, and (iii) such swing
and slide sets are constructed of wood. Metal swing and slide sets are prohibited. Equipment higher
than eight (8) feet shall require approval of the design, location, color, material and use by the
Committee, and aluminum or metal play equipment is prohibited.
Section 5.28 Plumbing. All plumbing vent stacks are to be located on the rear of the
Residence.
Section 5.29 Sidewalks. Each Residence shall have a continuous 4-foot wide by a minimum
of four (4) inches thick concrete sidewalk adjacent to all interior dedicated street frontage. Sidewalks
shall be installed by the Builder and included in the purchase price of the Residence. If an approved
asphalt bike/walking path is approved on the Property in place of the sidewalk, no additional concrete
sidewalk will be required.
Section 5.30 Subsurface Drains and Sump Pump Discharges. Subsurface drains have been
provided in certain areas within drainage easements as additional storm and ground water drainage
sources and are part of the public storm drainage system. Subsurface drain laterals have been provided
on specific Lots, and the Builder on such Lots shall connect all sump pump discharge lines to such
laterals. All maintenance and repair of all sump pump discharge lines and subsurface drain laterals
shall be the responsibility of each Lot Owner in accordance with the following:
(A) The limits of Owner responsibility include all sump pump lines and subsurface
drain laterals between the connection at the sump pump within the home and the connection
with the publicly maintained storm sewer or subsurface drain within the drainage easement.
(B) In cases where subsurface drain laterals are connected along a common
property line before connecting to the storm sewer, maintenance and repair of the common
lateral will be shared equally by the adjacent Owners unless an individual Owner caused the
lateral to be damaged, changed or altered.
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(C) Any Owner or Builder damaging, changing, or altering these subsurface drains
and/or common subsurface drain laterals will be held responsible for such action and will be
given ten (10) days notice, by registered mail, to repair said damage, after which time, if no
action is taken, the appropriate jurisdictional agency, Declarant or the Association will cause
said repairs to be accomplished and the invoice for such repairs will be sent to the responsible
Owner(s) and/or Builder(s) for immediate payment. If immediate payment is not received, the
Declarant and/or the Association shall have all the rights and remedies to collect any
outstanding amounts as outlined hereafter in Article XI of this Declaration.
Section 5.31 Swimming Pools and Hot Tubs. Only permanent, in-ground pools with
professional construction, approved by the Committee, shall be permitted upon a Lot. All submittals to
the Committee shall include landscape plans. All backyard pools should be oriented to minimize the
potential effect on neighboring properties. All fencing shall conform to county or municipal regulations
and shall be of harmonious design and subject to Committee approvals. Hot Tubs must also be
approved by the Committee.
Sections 5.32 Tennis Courts"! Racquetball Courts"! Paddleball Courts"! etc. Tennis courts,
racquetball courts, paddle ball courts, basketball courts, squash courts, and other recreational facilities
or sporting facilities will not be permitted without approval from the Committee. All submittals to the
Committee shall include landscape plans. Basketball goals may be installed on a lot adjacent to
driveway without Committee approval provided that they have white fiberglass or translucent
fiberglass or glass backboards. Independent basketball courts may not be constructed on a Lot without
written Committee approval. No basketball goal or backboard shall be permitted to hang from or be
affixed to the Residence or garage. Lighted courts of any kind are prohibited. Temporary or portable
basketball courts will not be permitted to be located on streets or in cul-de-sacs.
Section 5.33 Vents. All metal and PVC roof or range vents will be painted to blend with roof
color.
Section 5.34 Windows-Doors. If storm doors are installed, they must be painted to match
exterior of the Residence. No unfmished aluminum doors or windows will be allowed.
Section 5.35 Street Signs. Decorative street signs that do not conform to applicable municipal
standards may be installed by Declarant in the Declarant's sole and absolute discretion. Such
decorative street signs shall be maintained by the Association, and shall be repaired or replaced by the
Association if damaged in accordance with applicable rules and regulations of the controlling
municipality. The Association assumes all liability in the installation, maintenance and repair of the
decorative street signs.
Section 5.36 Fuel Tanks. All above or below ground storage tanks, with the exception of gas
storage tanks used solely in connection with gas grills for the purpose of grilling or cooking food, shall
be and hereby are prohibited.
Section 5.37 Garbage and Other Refuse. No Lot Owner in the Development shall burn or
permit the burning out-of-doors of garbage or other refuse, nor shall any such Owner accumulate or
permit the accumulation out-of-doors of such refuse, including compost on his or her Lot.
Section 5.38 Home Occupations. No Lot or Lots shall be used by an Owner, other than a
Builder or Declarant, for any purpose other than as a single-family residence, except that a home
occupation, which satisfies the following definition as well as all requirements of the applicable
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Zoning Ordinance, may be permitted: any use conducted entirely within the Residence and participated
in solely by a member of the immediate family residing in said Residence, which use is clearly
incidental and secondary to the use of the Residence for dwelling purposes and does not change the
character thereof and in connection with which there is: a) no sign or display that will indicate from the
exterior that the Residence is being utilized in whole or in part for any purpose other than that of a
dwelling; b) no commodity sold upon the premises; c) no person is employed other than a member of
the immediate family residing in the Residence; and d) no manufacture or assembly operations are
conducted. Provided however, that in no event shall the following or similar activities be conducted or
considered to be a permitted Home Occupation: child day care, barber shop, styling salon, animal
hospital, or any form of animal care or treatment such as dog trimming, or any other similar activities.
The foregoing notwithstanding, the Declarant and Builders shall be permitted to operate sales trailers,
model homes, and sales offices.
Section 5.39 Open Drainage Ditches and Swales. The following shall apply to open ditches
and swales:
(A) Drainage swales (ditches) along dedicated roadways and within the right-of-
way, or on dedicated drainage easements, are not to be altered, dug out, filled in, tiled, or
otherwise changed, without the written permission of the appropriate jurisdictional agency and
the Declarant. Property Owners must maintain these swales as grassways or other non-eroding
surfaces. Any damage to swales or drainage structures must be repaired or replaced by the Lot
Owner.
(B) Any Owner or Builder altering, changing, or damaging these drainage swales
or ditches will be held responsible for such action and will be given ten (10) days notice, by
registered mail, to repair said damage, after which time, if no action is taken, the appropriate
jurisdictional agency, Declarant or the Association will cause said repairs to be accomplished
and the invoice for such repairs will be sent to the responsible Owners for immediate payment.
If immediate payment is not received by the Association, the Association shall have all the
rights and remedies to collect any outstanding amounts as outlined hereafter in Article XI of
this Declaration.
Section 5.40 Roofmg Materials. The roofing materials on all Residences within each Section
of the Development shall be similar in color, and shall be of a quality, style and composition
acceptable to the Declarant during the Development Period and, thereafter, the Committee.
Section 5.41 Solar Panels. No solar panels shall be permitted on any Residence.
Section 5.42 Temporary Structures. No temporary house, trailer, garage or other outbuilding
shall be placed or erected on any Lot, except by Declarant or a Builder.
Section 5.43 Utility Services. Easements for installation and maintenance of utilities and
drainage facilities are reserved as shown on the recorded plat.
Section 5.44 Vehicles Parking. No trucks one (1) ton or larger in size, campers, trailer, motor
homes, boats, snowmobiles, jet ski or similar vehicles shall be parked on any street in the Property.
Any recreational vehicle or trailer, camper, snowmobile, jet ski, or boat shall not be permitted to
remain on any driveway or Lot except within a closed garage and shall not be regularly parked upon
unpaved areas. There shall be no outside storage of commercial trucks, trailers, boats, junk cars, or fuel
tanks.
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Association, by an officer thereof, and with respect to the Committee, by one (1) member thereof.
Section 6.2 Committee. A Development Standards and Architectural Control Committee,
composed of at least three (3) members, shall exist and shall be appointed by the Declarant. Such
members shall be subject to removal by the Declarant at any time, with or without cause. Any
vacancies from time to time shall be filled by appointment of the Declarant. The Declarant may, at its
sole option, at any time hereafter, relinquish for a period of time to the Association the power to
appoint and remove one or more members of the Committee.
Section 6.3 Continuation of Committee. When the Declarant provides written notification to
the Association of discontinuance of this Committee, then the Directors of the Association, or their
designees, shall continue the actions of the Committee with like powers and duties.
Section 6.4 Duties of Committee. The Committee shall approve or disapprove proposed
improvements within thirty (30) days after all required information shall have been submitted to it. The
Committee for its permanent files shall retain one copy of submitted material. All notifications to
applicants shall be in writing, and, in the event that such notification is one of disapproval, the
requesting applicant may re-apply with changes. If however, approval has not been received by
applicant in writing within thirty (30) days, then said request shall be considered DENIED.
Section 6.5 Exercise of Discretion. Declarant intends that the members of the Committee
exercise discretion in the performance of their duties consistent with the provisions hereof, and every
Owner by the purchase of a Lot shall be conclusively presumed to have consented to the exercise of
discretion by such members. In any judicial proceeding challenging a determination by the Committee
and in any action initiated to enforce this Declaration in which an abuse of discretion by the Committee
is raised as defense, abuse of discretion may be established only if a reasonable person, weighing the
evidence and drawing all inferences in favor of the Committee, could only conclude that such
determination constituted an abuse of discretion.
Section 6.6 Inspection. The Committee may inspect work being performed without the
Owner's permission to assure compliance with these restrictions and applicable regulations.
Section 6.7 Liability of Committee"! Declarant"! Developer. Neither the Committee nor any
agent thereof, nor the Declarant, or Association shall be liable in any way for any costs, fees, damages,
delays, or any charges or liability whatsoever relating to the approval or disapproval of any plans
submitted to it, nor shall the Committee, Association or Declarant be responsible in any way for any
defects in any plans, specifications or other materials submitted to it, or for any defects in any work
done according thereto. Further, the Committee, Association and/or Declarant make no representation
or warranty as to the suitability or advisability of the design, the engineering, the method of
construction involved, the compliance of proposed plans with laws and zoning ordinances, or the
materials to be used. All parties should seek professional construction advise, engineering, and
inspections on each Lot prior to proposing construction.
Section 6.8 Common Areas Entrances"! Street Signs"! and Landscape Easements. None of the
following shall be installed or constructed without prior written approval thereof by the Committee: (i)
any and all landscaping, fences, structures, lighting, walking trails, sidewalks, or other improvements
located in any Common Area, landscape maintenance access easement, and/or sign landscape
easement, (ii) any entrance monument or signage identifying the Development or any section thereof
and/or (iii) street signage.
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Section 6.9 Lot Improvements. No dwelling, building structure, fence, deck, driveway,
swimming pool, rear yard tennis or basketball courts, or improvement of any type or kind (including
significant landscaping or stacking of wood) shall be constructed or placed on any Lot without the
prior approval of the Committee. Such approval shall be obtained only after the Owner of the Lot
requesting authorization from the Committee has made written application to the Committee at least
thirty (30) days prior to the proposed construction. Such written application shall be in the manner and
form prescribed from time to time by the Committee, and shall by accompanied by two (2) complete
sets of plans and specifications for any such proposed construction or improvement. Such plans shall
include plot plans showing (i) the location of the improvements existing upon the Lot and the location
of the improvement proposed to be constructed or placed upon the Lot, each properly and clearly
designated and (ii) all easements, set backs, and rights-of-way and (iii) any landscape plans required by
the Committee. Such plans and specifications shall further set forth the color and composition of all
exterior materials proposed to be used and any proposed landscaping, together with any other
materials, photographs, or information, which the Committee may require. All building plans and
drawings required to be submitted to the Committee shall be drawn to a scale of 1/4" = l' and all plot
plans shall be drawn by a professional to a scale of 1" = 30', or to such other scale as the Committee
shall deem appropriate. It is also recommended that a certified survey be prepared to insure that a
resident is not encroaching on an adjacent homeowner or in a Common Area. If Owner has encroached
on an adjacent Owner's property or in a common area, the encroaching Owner will, at his or her own
expense, move any fence or other improvement(s) so as to eliminate the encroachment.
Notwithstanding anything to the contrary in the foregoing, upon receipt of any written application
which is in form and content acceptable to the Committee in the Committee's sole and absolute
discretion, the Committee may pre-approve a Builder's plans and specifications for the original
construction of a Residence and, in the event of such pre-approval, the Builder shall then be authorized
to construct the pre-approved Residence on different Lots without further approvals from the
Committee.
No fence or screen of any kind will be permitted if its installation will obstruct necessary site
lines for vehicular traffic. Undue obstruction of view of other amenities from adjoining properties shall
be considered by the Committee when reviewing applications for approval.
Section 6.10 Power of Disapproval. The Committee may refuse to grant permission to
construct, place or make the requested improvement with or without cause. Common grounds for
denial include, but are not limited to, a lack or absence of the following:
(A) The plans, specifications, drawings or other material submitted must
themselves be adequate and complete, show the proposed improvement, and not be in violation
of this Declaration; and
(B) The design or color scheme of a proposed improvement must be in harmony
with the general surroundings of the Lot or with adjacent buildings or structures.
Section 6.11 Power to Grant Variances. The Committee may allow reasonable variances or
adjustments of this Declaration where literal application would result in unnecessary hardship, but any
such variance or adjustment shall be granted in conformity with the general intent and purposes of this
Declaration, no variance or adjustment shall be granted which is materially detrimental or injurious to
other Lots in the Development, and any such variance granted shall not be considered as precedent
setting.
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Section 6.12 Statement of Purposes and Powers. Subject to this Declaration and the
restrictions contained herein, the Committee shall regulate the external design, appearance, use,
location and maintenance of lands and improvements thereon in such a manner as to preserve and
enhance values and maintain a harmonious relationship among structures and the natural vegetation
and topography, and in keeping with the intent of the Declarant.
ARTICLE VB
CONTIGUOUS LOTS
Section 7.1 Rules Governing Building on Several Contiguous Lots Having One Owner.
Whenever two or more contiguous Lots shall be owned by the same person, and such Owner shall
desire to use two or more of said Lots as a site for a single-dwelling house, such Owner must apply in
writing to the Committee for permission to so use said Lots. If permission for such a use shall be
granted, the Lots constituting the site for such single-dwelling house shall be treated as a single Lot for
the purpose of applying this Declaration to said Lots, so long as the Lots remain improved with one
single-dwelling house. In addition, the Owner must obtain all requisite and necessary permits and
approvals from the municipality having zoning jurisdiction over the Property; provided, however, that
with respect to the lots so combined, the Owner of the combined lots shall be obligated to pay Annual
Assessments, One-Time Assessments, and/or Special Assessments for each originally platted Lot
together constituting the combined Lots, and such Annual Assessments, One-Time Assessments, and
Special Assessments shall be a lien on the combined Lots, all per the terms and conditions of Article X
below.
ARTICLE vm
USE AND OWNERSHIP OF COMMON AREA
Section 8.1 Ownership. A license upon such terms, conditions, rules and regulations as the
Declarant, and successor, assigns or licensees of the Declarant, shall from time to time grant, for the
use and enjoyment of the Common Area, is granted to the persons who are from time to time members
of the Association; provided, however, that no residential development shall occur in the Common
Area. Every Owner shall have a nonexclusive right and easement of enjoyment in common with all
other Owners, in and to the Common Areas which nonexclusive right and easement of enjoyment shall
be appurtenant to and pass with the title to every Lot; provided, however, that any area identified on a
Plat as a Limited Common Area shall be for the exclusive use and benefit of Owners whose Lots abut
the Limited Common Area, subject to (i) the right of the Association to perform and undertake
maintenance of the Limited Common Area and (ii) all easements granted in this Declaration. The
Common Areas shall be conveyed by quitclaim deed to the Association. Such conveyance shall be
deemed to have been accepted by the Association and those persons who shall from time to time be
members thereof upon the recording of a deed or deeds conveying such Common Area.to the
Association.
Section 8.2 Use. Common Area shall be used for such purposes as deemed appropriate by the
Declarant until the end of the Development Period. Following the end the Development Period, the
Common Area shall be used for such purposes as deemed appropriate by the Association. Any
Common Area depicted on the recorded plats of the Development or designated by the Declarant as a
Common Area shall remain for the exclusive use of the Owner(s), and their family members, guests,
tenants, or contract purchaser who reside on the Lot(s). Neither the Declarant's execution or recording
of the plats nor the doing of any other act by the Declarant is, or is intended to be, or shall be construed
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be a member of the Association. Apart from the Initial Member(s), a membership in the Association
shall be appurtenant to and may not be separated from ownership of any Lot.
Section 9.5 Professional Management. No contract or agreement for professional management
of the Association, nor any other contract between Declarant and the Association, shall be for a term in
excess of three (3) years. Any such agreement or contract shall provide for termination by either party
with or without cause and without payment of any termination fee upon written notice of ninety (90)
days or less. The Association shall at all times be managed by a professional management company.
Section 9.6 Limitations on Rights of the Association. As long as there is a Class B Member,
the Association may not use its resources, nor take a public position in opposition to future phases of
Abney Glen proposed by the Declarant or changes to current phases of proposed by the Declarant.
Nothing in this paragraph shall be construed to limit the rights of the members acting as individuals or
in affiliation with other members or groups as long as they do not employ the resources of the
Association or identify themselves as acting in the name, or on the behalf of the Association.
ARTICLE X
ASSESSMENTS
Section 10.1 Creation of Lien and Personal Obligation of Assessments. Each Owner of any
Lot, except the Declarant and any Builder, by acceptance of a deed therefore, whether or not it shall be
so expressed in such deed, is deemed to covenant and agree to pay to the Association the following:
(A) Annual Assessments (hereafter defmed);
(B) One-Time Assessment (hereafter defined);
(C) Special Assessments (hereafter defined) for costs of enforcement of the
Declaration, capital improvements and operating deficits, copies of Association documents if
requested by a member, and such assessments to be established and collected as hereinafter
provided or established by the Board; and
(D) Violation Assessments (hereafter defined) levied for a violation of this
Declaration.
Section 10.2 Annual Budget. By majority vote of the Board of Directors, the Board of
Directors shall adopt an annual budget for the subsequent fiscal year, which shall provide for the
allocation of expenses in such a manner that the obligations imposed by the Declaration and all
Supplemental Declarations can effectively be met.
Section 10.3 Annual Assessment.
(A) Amount. The Annual Assessment provided for herein shall be per calendar
year and shall commence for each Lot on the date of closing of the sale of a Lot to an Owner
other than Declarant or a Builder. The Annual Assessment, commencing during the calendar
year in which the fIrst Lot is conveyed to an Owner other than the Declarant or a builder, shall
be Dollars ($ ) per year per Lot. The Annual Assessment for the calendar
year shall be pro-rated to year-end. The Board of Directors shall fix any increase in the amount
of the Annual Assessment at least thirty (30) days in advance of the effective date of such
increase. The initial due date for annual assessments shall be January 1 st of each calendar
year, and such assessment shall be subject to collection and late charges beginning on
January 31 st of each calendar year.
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(B) Purpose of Assessments. The annual assessment levied by the Association
shall be used in the reasonable discretion of the Board of Directors to fulfill the duties and
obligations of the Association specified in this Declaration.
(C) Method of Assessment. By a vote of a majority of the Board of Directors, the
Board of Directors shall, on the basis specified in Section 10.7 below, fix the Annual
Assessment for each assessment year at an amount sufficient to meet the obligations imposed
by this Declaration upon the Association. The Board during any calendar year shall be
entitled to increase the Annual Assessment for that year if it should determine that the
estimate or current assessment is insufficient for that year, provided that the Board shall give
at least thirty (30) days advance notice thereof to the Owners. The Board of Directors shall
establish the date(s) the Annual Assessment shall become due, and the manner in which it
shall be paid.
Section 10.4 One-time Assessment. Upon (i) the closing of the initial conveyance of each
Lot by Declarant to an Owner other than a Builder, or (ii) the sale of each Lot by a Builder (either by
deed or by installment sale, conditional sale or land-contract sale), the purchaser of such Lot shall
pay to the Association, in addition to any other amounts then owed or due to the Association, as a
contribution to its working capital and start-up fund, an amount of Dollars ($ )
against such Lot, which payment shall be non-refundable and shall not be considered as an advance
payment of any assessment or other charge owed the Association with respect to such Lot. Such
working capital and start-up fund shall be held and used by the Association for payment of, or
reimbursement to Declarant for advances made to pay, expenses of the Association for its early period
of operation of the Development, to enable the Association to have cash available to meet unforeseen
expenditures, or to acquire additional equipment or services deemed necessary by the Board.
Section 10.5 Special Assessment. In addition to such other Special Assessments as may be
authorized herein, the Board of Directors may levy in any year a Special Assessment(s) for the purpose
of enforcing these covenants and restrictions, for legal expenses, for collection expenses, other activity
that is the responsibility of an Owner hereunder but which such Owner has not undertaken as
required hereunder, for defraying, in whole or in part, the cost of any construction, reconstruction,
repair or replacement of any capital improvement which the Association is required to maintain
and/or for operating deficits which the Association may from time to time incur, provided that any
such assessment shall have the assent of a majority or the votes of the members who are voting in
person or by proxy at a meeting duly called for this purpose.
Section 10.6 Violation Assessment. In addition to all other assessments as be authorized
herein, the Board of Directors may levy a Violation Assessment to an Owner, (i) for a violation
against this Declaration or (ii) for damages if any portion of the Common Area that the Association
is obligated to maintain, repair and/or replace is damaged due to the willful or negligent act or
omission of such Owner or Owner's guest or invitee. In the event of such damage, the Board shall
have the right to undertake the necessary maintenance, repair or replacement. The choice between
repair or replacement is in the sole discretion of the Board.
Section 10.7 Basis for Assessment.
(A) Lots Generally. Each Lot owned by a person other than Declarant or a Builder
shall be assessed at a uniform rate without regard to whether a Residence has been constructed
upon the Lot.
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(B) Lots Owned by Declarant or Builder. Declarant and any Builder shall not pay
the Annual Assessment and Special Assessment so long as any Residence constructed upon a
Lot by Declarant or a Builder has not been either conveyed to an Owner intending to occupy or
rent said Residence as a residence or leased to an individual or an entity for use as a Residence.
Section 10.8 Notice and Due Date. Written notice of special assessments and such other
assessment notices as the Board of Directors shall deem appropriate shall be delivered to every Owner
subject thereto. The due dates for all assessments shall be established by the Board of Directors.
Section 10.9 Assessment Liens. All Assessments, together with interest thereon, attorneys
fees, and other costs of collection permitted by this Declaration to be collected, shall be a charge on the
land and shall be a continuing lien upon the Lot against which each Assessment is made until paid in
full. Each Assessment, together with interest thereon and costs of collection thereof, including
reasonable attorney fees, shall also be the personal obligation of the Person who was the Owner of the
Lot at the time when the Assessment became due.
Section 10.10 Failure of Owner to Pay Assessments. No Owner, by waiver of the use or
enjoyment of the Common Areas, or by abandonment of the Residence belonging to such Owner, may
exempt himself or herself from paying Annual Assessments or Special Assessments, or from
contributing toward the expenses of administration and/or maintenance and repair of the Common
Areas and toward any other expense lawfully agreed upon. Each Owner shall be personally liable for
the payment of all Annual Assessments, Special Assessments, Violation Assessments and all other
charges. Where the Owner constitutes more than one person, the liability of such persons shall be joint
and several. If any Owner shall fail, refuse or neglect to make any payment of any Annual
Assessments, Special Assessments, or Violation Assessments when due, the lien for such assessment
on the Owner's Residence may be foreclosed by the Board of Directors for and on behalf of the
Association, as provided by law. Upon the failure of an Owner to make payments of any Annual
Assessments, Special Assessments, or Violation Assessments within ten (10) days after such are due,
the Board of Directors, in its discretion and regardless of whether litigation is commenced, may:
(1) impose a uniform monthly late charge, which will be considered an addition to the assessment,
in an amount to be determined by the Board of Directors of up to twenty-five percent (25%) of
the amount of the Assessment;
(2) accelerate the entire balance of the unpaid Assessments for the remainder of the fiscal year and
declare the same immediately due and payable, notwithstanding any other provisions hereof to
the contrary;
(3) require that, in addition to the delinquent assessment and any applicable late charge, the Owner
of the respective Residence also pay (i) any attorney's fees incurred incident to the collection
of the delinquent assessment and (ii) collection costs incurred by the Association to the
managing agent for processing delinquent Owners' accounts;
(4) suspend such Owner's right to use the Common Areas as provided in the Indiana Nonprofit
Association Act of 1991, as amended; and
(5) suspend such Owner's right to vote as provided in the Indiana Nonprofit Association Act of
1991, as amended.
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In any action to foreclose the lien for any Assessments, the Board of Directors shall be entitled to the
appointment of a receiver for the purpose of preserving the Residence and to collect the rentals and
other profits therefrom for the benefit of the Association to be applied to the unpaid Annual
Assessments, Special Assessments, and/or Violation Assessments. The Board of Directors may, at its
option, bring a suit to recover a money judgment for any unpaid Annual Assessments, Special
Assessments, and/or Violation Assessments without foreclosing or waiving the lien securing the same.
In any action to recover an Annual Assessment, Special Assessment, and/or Violation Assessments,
whether by foreclosure or otherwise, the Board of Directors, for and on behalf of the Association, shall
be entitled to recover costs and expenses of such action incurred, including but not limited to collection
costs incurred by the Association to the managing agent for processing delinquent Owners' accounts
and reasonable attorney's fees, from the Owner of the respective Residence.
Section 10.12 Certificates. The Association shall, upon reasonable request by an Owner, at any
time, furnish a letter in writing signed by an officer of the Association, indicating the accounting status
of assessments on a Lot showing the balance due the Association, if any.
Section 10.13 Subordination of the Lien to Mortgages. The lien of the assessments provided
for herein against a Lot shall be subordinate to the lien or any recorded first mortgage covering such
Lot and to any valid tax or special assessment lien on such Lot in favor of any governmental taxing or
assessing authority. Sale or transfer of any Lot shall not affect the lien of assessments levied under this
Article X. The sale or transfer of any Lot pursuant to mortgage foreclosure or any proceeding in lieu
thereof shall, however, extinguish the lien of such assessments which became due or are attributable to
the period of time prior to such sale or transfer. No sale transfer shall relieve such Lot from liability for
any assessments thereafter becoming due or from the lien thereof.
ARTICLE XI
REMEDIES
Section 11.1 Delay or Failure to Enforce. No delay or failure on the part of any aggrieved
party to invoke any available remedy with respect to a violation of anyone or more of covenants,
conditions, and restrictions in this Declaration shall be held to be a waiver by that party or an estoppel
of that party of any right available to such party upon the occurrence, reoccurrence or continuation of
such violation or violations of this Declaration.
Section 11.2 In General. The Association or any party to whose benefit this Declaration
inures, including the Declarant and/or any Owner, may proceed at law or in equity to prevent the
occurrence or continuation of any violation of these Restrictions, or to compel compliance with these
Restrictions and Covenants, and shall be entitled to recover costs of collection and reasonable
attorney's fees; however, neither the Declarant, nor the Association, shall be liable for damages of any
kind to any person for failing either to abide by, enforce, or carry out any terms, conditions, or
restrictions contained in this Declaration.
ARTICLE XU
EFFECT ON BECOMING AN OWNER
Section 12.1 The Owner(s) of any Lot subject to this Declaration, by acceptance of a deed
conveying title thereto, or by virtue of the execution of a contract for the purchase thereof, whether
from Declarant, a Builder, or a subsequent Owner of such Lot, shall accept such deed and execute such
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contract subject to each and every covenant, condition, and restrictions contained in this Declaration.
By acceptance of such deed or execution of such contract each Owner acknowledges the rights and
powers of the Declarant, Committee, and Association contained in this Declaration, and also, for
themselves, their heirs, personal representatives, successors and assigns, such Owner(s) covenant and
agree and consent to and with the Declarant, Committee and the Association and to and with the other
Owners and subsequent Owners of each of the Lots affected by this Declaration to keep, observe,
comply with and perform such covenants, conditions, and restrictions contained in this Declaration.
ARTICLE xm
TITLES
Section 13.1 The titles preceding the various Sections and paragraphs of this Declaration are
for convenience of reference only and none of them shall be used as an aid to the construction of any
provisions of this Declaration. Wherever and whenever applicable, the singular form of any word shall
be taken to mean or apply to the plural, and the masculine form shall by taken to mean or apply to the
feminine or to the neuter.
ARTICLE XIV
GENERAL PROVISIONS
Section 14.1. Enforcement and Declarant's Exemption. The Association or any Owner shall
have the right to enforce, by a proceeding at law or in equity, all restrictions, conditions, covenants,
reservations, easements, liens and charges now or hereafter imposed by the provisions of this
Declaration or other Association documents unless such right is specifically limited. Failure by the
Association or by any Owner to enforce any right, provision, covenant or condition which may be granted
by this Declaration shall not constitute a waiver of the right of the Association or an Owner to enforce such
right, provision, covenant or condition in the future. All rights, remedies and privileges granted to the
Association or any Owner pursuant to any term, provision, covenant or condition of the Declaration shall
be deemed to be cumulative and the exercise of anyone or more thereof shall not be deemed to constitute
an election of remedies nor shall it preclude the party exercising the same from exercising such privileges
as may be granted to such party by this Declaration or at law or in equity.
Notwithstanding anything in this Declaration to the contrary, (i) the Declarant and any Builder
reserves a right to carry on construction, development, and sales activities, to place equipment,
machinery, supplies and signs, construct and maintain models or other structures, and park vehicles of
prospective or actual purchasers, lessees, or employees and personnel of the Declarant, on any part of
the Property owned by the Declarant, a Builder, or the Association and (ii) none of the terms,
conditions, provisions, and restrictions set forth in this Declaration shall be construed, in any manner,
to limit any activity of the Declarant or a Builder in the construction, development, and sales activities
pertaining to the Property.
Section 14.2. Severability: Headings: Conflict. Invalidation of anyone of the provisions of this
Declaration by judgment or court order shall in no way affect any other provision, which shall remain in
full force and effect. Titles of paragraphs are for convenience only and are not intended to limit or expand
the covenants, rights or obligations expressed therein. In the case of any conflict between the Articles of
Incorporation and this Declaration, the Declaration shall control; in the case of any conflict between this
Declaration and the By-Laws, this Declaration shall control.
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Section 14.3. Duration. The covenants, reservations, restrictions and other provisions of this
Declaration shall run with and bind the Property subject hereto and shall inure to the benefit of the
Declarant or any Owner subject to this Declaration, their respective legal representatives, heirs,
successors and assigns, for a term of 20 years from the date this Declaration is recorded. Upon the
expiration of such initial period, this Declaration shall automatically be extended for successive periods
often (10) years. The number often (10) year renewal periods hereunder shall be unlimited, with this
Declaration being automatically renewed and extended upon the expiration of each ten (10) year
renewal period for an additional ten (10) year period; provided, however, that there shall be no renewal
or extension of this Declaration if during the last year of the initial period, or during the last year of any
subsequent ten (10) year renewal period, three-fourths (3/4) of the votes cast at a duly held meeting of
Members of the Association vote in favor of terminating this Declaration at the end of its then current
term. It shall be required that written notice of any meeting at which such proposal will be considered
shall be given at least forty-five (45) days in advance of said meeting. If the Members vote to
terminate this Declaration, the president and secretary of the Association shall execute a certificate
which shall set forth the resolution of termination so adopted, the date of the meeting of the
Association, the total number of votes cast in favor of such resolution, and the total number of votes
cast against such resolution. Said certificate must be signed by all Mortgagees in existence one (1) year
prior to the termination of such term or extension agreeing to terminate this Declaration. Said
certificate shall be recorded in the Public Records of Hamilton County, Indiana, and may be relied
upon for the correctness of the facts contained therein as they relate to the termination of this
Declaration, upon which event this Declaration shall be terminated upon the expiration of the original
term or the ten (10) year extension during which such instrument of termination was recorded.
Section 14.4. Amendment. Until after the occurrence of the end of the Development Period,
the Declarant reserves the exclusive right, at any time, in its sole discretion and without notice, to make
any modifications or amendments to this Declaration deemed necessary or desirable by the Declarant
and, therefore, for instance only and not by way of limitation, the Declarant reserves the right to amend
this Declaration to comply with any requirements of the Federal Agencies. After the end of the
Development Period, modifications and amendments to this Declaration may be made from time to
time upon the affrrmative vote of two-thirds (2/3) of all Members of the Association at any Annual or
Special meeting called for that purpose; provided, however, that the full text of any proposed
amendments shall be included in the notice of such Annual or Special meeting and the voting
requirements specified for any action under any provisions of this Declaration shall also apply to any
amendment of such provisions, and no amendment shall be effective which is in contravention of the
duties, responsibilities or obligations of the Association or the Members as provided in this
Declaration.
Section 14.5. Waiver. The Declarant, as the present most interested party in maintaining the
high quality of development which by these covenants is sought to be assured for the Property, hereby
expressly reserves unto itself (so long as these restrictions are in effect), the unqualified right to waive or
alter from time to time such of the herein contained restrictions as it may deem best, as to anyone or more
of the Lots, which waiver or alteration shall be evidenced by the mutual written consent of the Declarant
and the then-Owner of the Lot as to which some or all of said restrictions are to be waived or altered; such
written consent to be duly acknowledged and recorded in the Office of the Recorder of Hamilton County,
Indiana.
Section 14.6. Management Contracts. For such time as the Declarant has Class B membership
status, the Declarant shall have the right to enter into professional management contracts on behalf of the
Association for the management of the Property for terms not to exceed one (1) year; provided, however,
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