Restrictive Covenants
The Greens At Wildcat
Subdivision
Komark, Ltd., an Indiana corporation
(the “Developer”) being the owner of the real estate described in Exhibit
“A” attached hereto and made a part hereof (hereinafter the Real Estate”),
does hereby establish and execute these Restrictive e Covenants which
shall hereby establish conditions, covenants, and restrictions to govern
the use and occupancy of the lots in The Greens at Wildcat Subdivision and
such conditions, covenants and restrictions shall operate perpetually and
run with the land and title to all of the lots on said subdivision, and
are as follows, to-wit:
1. No building, wall, fence or
other structure shall be erected or placed on any lot or parcel until the
building plans, specifications and plot plans showing the location and
elevation of such building and the landscaping have been approved in
writing as to the conformity and harmony of the external design with
existing structures in the subdivision and as to the location of the
building with respect to topography and finished ground elevation, and as
to the sufficiency of the specifications, by a majority of a building
committee consisting of three representatives designated by the Developer
(hereinafter the “Building Committee). No building permit shall be
obtained from Howard County, Indiana until and unless the plans and
specifications for the improvement have been given written approval by the
Building Committee. A detailed landscaping plan shall be required for
approval in writing to conform with the conditions set forth in paragraphs
below. In the event of death or resignation of any member of said
Building Committee, the remaining member or members shall be authorized to
select a replacement, but prior to such selection, the remaining member or
members shall have full authority by unanimous action to perform all of
the duties of the full committee. In case of disagreement among the
committee members on any matter officially before the committee, the vote
of the majority among such members of the committee shall be controlling.
In the event the Building Committee or its
designated representative fails to approve or disapprove any design,
location, specifications and elevation within thirty (30) days after plans
and specifications have been submitted to it, or in any event if no suit
to enjoin the erection of any building or the making of alterations
thereof has not been commenced prior to the completion and this covenant
will be deemed to have been complied with fully. Neither the members of
the Building Committee nor its designated representative shall be entitled
to any compensation for services performed pursuant to this covenant. The
powers and duties of such committee and its designated representative
shall cease on and after January 1, 2006. Any modifications in the powers
or the duties of the Building Committee shall not be subject to the
amendatory provisions of paragraph 21 below. Thereafter, the approval
described herein shall not be require4d unless prior to such date and
effective thereof, a majority of the lot owners in said subdivision
appoint a representative or representatives who shall thereafter exercise
the same powers previously exercised by the Building Committee.
The Developer or the Building Committee or
their employees, agents and representatives shall not be liable for any
damage, loss or prejudice suffered or claimed by any owner, builder,
contractor or subcontractor who submits such plans on account of (a) any
defects in any plans or specifications submitted, revised or approved in
accordance with the foregoing provisions; (b) any structural or either
defects in any work done according to such plans and specifications; (c)
the approval or disapproval of any plans drawings and specifications,
whether or not defective; (d) the construction or performance of any work,
whether or not pursuant to approved plans, drawings and specifications,
and (e) the development of any property within the Real Estate. Any
person submitting plans to the Building Committee shall hold the Developer
and the Building Committee harmless from all damage, loss or prejudice
suffered or claimed by any third party, including attorneys’ fess
incurred.
2. The Real Estate shall be
used for residential purposes only.
3. All residential buildings
and/or garages shall be at least twenty-five (25) feet from the property
line which fronts the street. The Building Committee shall have the sole
power to change the minimum building setback lines, but such changes must
be: in conformity with the subdivision ordinance of Howard County,
Indiana, be in writing, recorded and for good cause shown.
4. No structure shall be
erected, altered, placed or permitted to remain on any lot in this
subdivision other than a single-family dwelling not to exceed two stories
in height, unless said structure is expressly approved by the Building
Committee. Structure as referred to herein shall mean fence, kennel,
patio, playhouse, building, shelter, lean-to, garage, swimming pool,
storage shed, whether temporary or permanent, upon the Real Estate or any
other building or fixture except the dwelling house which extends above
ground level. Each dwelling shall have a private garage for not less than
two cars, or for more than three cars. For purposes of the preceding
restriction, a dwelling house containing two full stories plus an attic
shall be a two-story house.
5.
All residential structures
shall comply with the following: (1) All one-story residential structures
shall have a minimum first floor area of 1,600 square feet; (2) All
two-story and multi-level residential structures shall have a minimum
total floor area of 1,800 square feet above grade level. In computing the
minimum square footage required above, the computation of square footage
shall exclude porches, breezeways, attached garages or basements. All
garages erected on the real estate shall be attached to the residence.
6. Each dwelling shall have an
exterior of at least three-three & 1/3 percent (33 1/3%) stone or brick
masonry front-no artificial materials shall be permitted in order to
comply with this 33 1/3% requirement unless the dwelling is designed
architecturally to fit the community s determined in writing by the
Building Committee.
7. All windows constructed upon
the Real estate shall be made of wood, vinyl, vinyl clad wood or metal
clad wood. All metal windows are not permitted. The name of the
manufacturer and the type of windows to be installed are to be submitted
to the Building Committee in accordance with the Paragraph 1 above.
8. All driveways must be
constructed of either asphalt or concrete, and construction of a driveway
must be completed within ninety (90) days after occupancy of a residential
dwelling on the lot. Brick or cobblestone driveways may be installed upon
approval of the Building Committee.
9. Pursuant to county
ordinance, right-of-way sidewalks are to be installed and maintained by
the homeowner.
10.
Each front yard up to the
side of the residential building and perpendicular thereto shall be
landscaped with sod grass. Only the back and side yards may be seeded.
11.
Each lot owner shall be
required to plant in the front or side yard areas at least 4 trees with a
minimum diameter of two and one-half (2 ˝) inches in width and a minimum
of six (6) feet in height above grade and a minimum of 12 shrubs. Minimum
two in right-of-way. Species: Green Ash, Flowering Pear, White Ash,
Sweet Gum, Norway.
12. The construction of any
residential structure must be commenced within twenty-four (24) months
from the date of closing of sale and shall be completed within nine (9)
months from the date of commencement of construction. Landscaping
(including sodding) shall also be completed within said nine (9) month
period. The Building Committee may extend this time if in their opinion,
weather or other conditions prohibit such timely completion. No
unnecessary building materials, piles of fill or piles of trash are
permitted.
13. No obnoxious or offensive
trade or activity shall be carried on upon the Real Estate in this
subdivision, nor shall anything be done thereon which may be or become an
annoyance or nuisance to the neighborhood. No lot shall be used or
maintained as a dumping ground for rubbish. Trash, garbage or other
waste shall be kept only in sanitary containers. Each lot owner shall
keep and maintain the general area surrounding the lot and the lot itself,
clear of debris, overgrown weeds, construction materials and equipment
before and during the construction of improvements thereon. Any violation
hereof shall be a violation of these restrictive covenants and subject to
paragraph 23 below. Alternatively and at the option of Developer, or the
Homeowner’s Association (after Developer has transferred the management
responsibilities thereto), if a lot owner fails to comply with this
paragraph after seven (7) days of written notice, Developer or the
Homeowner’s Association shall satisfy this paragraph as pertaining to such
lot and the lot owner shall be liable for all costs and expenses
incurred.
14. No truck, tractor, motor
home, trailer, boat, utility vehicle, camper, etc. shall be permitted to
be parked on any lot or anywhere in the subdivision for more than 48 hours
unless in a garage or granted approval in writing by the Building
Committee. It is the intent of the Building Committee to restrict parking
of the above-mentioned vehicles to the garages upon the lots and to
further restrict vehicular parking in the subdivision to the automobiles
regularly used by the owners in the subdivision.
15. Strips of ground shall be
reserved as easements for the use of public utilities, for the
installation and maintenance of poles, ducts, wires, pipelines, lines and
for drainage. No permanent or other structures are to be erected or
maintained upon said strips of land. The owners of lots shall take their
titles subject to such easements, and such easements are for the benefit
of all lot owners in said subdivision.
16. 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 on any lot, provided that;
they are not kept, bred or maintained for any commercial or hobby purpose,
they do not create a nuisance and that they are not permitted to roam
elsewhere in the subdivision except on a leash.
17. The resident or owner of any
lot shall not block or hinder any surface water or subsurface water
drainage or runoff, nor shall do anything to disrupt, obstruct or retard
the natural flow of any surface water or subsurface water without the
approval of the Building Committee.
18. Fencing installed by lot
owner shall be no greater than 6 feet in height and constructed only
around the side and rear yards of any lot in the subdivision. However, no
fencing shall be permitted on lots 1 through 65 unless such fencing is in
close proximity to the residence and less than six (6) feet in height (as
determined by the Building Committee), it being the intention to not
restrict the view of the golf course. All fences shall be approved by the
Building Committee. Fencing around swimming pools shall be permitted in
accordance with the applicable county ordinance. Chain link fences are
prohibited from use anywhere in the subdivision.
19. No trees in excess of four
inches diameter may be cut or removed from any lot in the subdivision
without prior written consent of the Building Committee.
20. The Greens at Wildcat
Homeowners Association, Inc., hereinafter referred to as the
“Association,” shall be an Indiana not-for-profit corporation and shall be
created by the Developer acting on behalf of the owners and future owners
of lots in this subdivision.
Each
owner of a lot in Greens at Wildcat subdivision shall be a member of the
Association and shall be entitled to cast one (1) vote at all meeting for
each lot that is owned. The purpose of the Association is to manage and
to support financially all common areas, to promote the recreation,
health, safety and welfare of the owners, and all purposes as the
membership deems necessary and until such time as the Association is
created by the Developer, in the sole discretion of the Developer. The
Association shall be responsible for the upkeep and maintenance of the
areas indicated as such in Exhibit B attached hereto and herby made a part
of these covenants including the “common area” shaded by diagonal
settlement of disputes between or among neighbors concerning the
improvement upon the lots that the Developer, in its sole discretion, has
determined is more appropriately the responsibility of the Association.
After its
creation by the Developer, the Association shall conduct a meeting at
least once each year to organize itself and to elect its officers. The
Association shall adopt bylaws for its government and levy and collect
dues. The Association shall impose and collect annual assessments for the
maintenance and improvements of the common areas and for any purpose as
the Developer or the membership may deem necessary. The first
installment of such assessment shall be due thirty (30) days after
Developer notifies each lot owner. Such assessment shall be in the amount
of $150.00 and shall be due on the anniversary of such date thereafter
unless otherwise agreed by the Association as hereinafter set forth. Said
dues may increase annually by a percentage equal to the increase of the
consumer price index (c.p.i.) (Chicago metropolitan area) for the previous
year. However, in the event extraordinary, unforeseen, expenses arise,
then the annual assessment shall be raised accordingly regardless of the
c.p.i. Said assessments shall be levied equally on each lot in all phases
to the recorded plat of The Greens at Wildcat Subdivision. Failure to pay
said assessments or annual dues shall be a violation of these covenants
and restrictions. Any such assessments or annual dues shall be billed by
the Association to the owner of each lot and shall be due and payable
within thirty (30) days. All lots shall, from and after the recording of
these restrictions, be subject to said annual dues and assessments. Said
dues and assessments shall be a lien in favor of the Association upon the
lot against which such dues and assessments are charged until paid, which
lien shall be enforced in the same manner as is provided in the mechanic’s
lien statutes of the State of Indiana. Provided further, that any person
purchasing or dealing with said lot may rely upon the lot against a
certificate signed by the president or secretary of the Association
showing the amount of said due and assessments which are due and
unpaid as of the date of such certificate, and the Association shall not
be entitled to enforce any lien for such charge accruing prior to the date
shown in said certificate. The within-above described lien is subordinate
to any first mortgage lien. Any past due annual dues, assessments or other
charges assessable hereunder shall bear interest at the rate of twelve
percent (12%) per annum commencing thirty (30) days after the same become
due and with attorneys fees, and shall be due and payable without relief
from valuation and appraisement laws. The Association may be formed for,
and engage in, such other activities as may be beneficial to the lot
owners, to the public at large, or which may qualify the Association as a
“not-for-profit corporation or association,” as defined in the Internal
Revenue Code. Until such time as the Association is created by the
Developer, the Developer, acting on behalf of the Association to be
formed, shall be entitled to carry out the responsibilities assigned to,
and enjoy and exercise the rights and powers granted to the Association
pursuant to these restriction. Notwithstanding the amendatory provisions
of paragraph 21 below, the Developer shall not be responsible for any
assessment on lots held as inventory prior to sale.
Within sixty (60)
days of written notification by Developer to each lot owner that Developer
intends to transfer the management responsibilities of the Association to
the lot owners, and the ownership of the common areas and outlots
(if any), the lot owners shall organize themselves and set forth above and
assume the management of the Association and the ownership thereof. After
said 60 days, thereafter it shall be the sole responsibility of the lot
owners to conduct the Association in their discretion whether or not the
lot owners formally organize themselves and the Developer shall from that
date forward not be held responsible or liable for any obligation of the
Association.
21. It is expressly provided
that the Developer, its successors or assigns shall have and hereby
reserves the exclusive owners of lots in the subdivision or mortgagees of
said lots to amend or supplement these Restrictive Covenants at any time
and from time to time for a period of two (2) years from the date of
recording of this Plat to amend any or all of the restrictions or
covenants herein; except that the Developer, its successors or assigns,
shall not, during such period increase the One Hundred Fifty Dollars
($150.00) limitation on the total dues and assessments levied annually on
any lot. Such amendment shall be evidenced by the recording of a written
amendment signed and recorded in the Office of the Recorder of Howard
County, Indiana and shall become effective upon such recording. After
said two (2) years period, except as prohibited elsewhere in these
Restrictive Covenants, any amendments or changes of these restrictions and
declarations shall be made as follows:
A. Notice.
Notice of the subject matter of the proposed amendment in reasonable
detailed form shall be included in a notice of a meeting to be held and
shall be given to all owners o lots within the subdivision.
B.
Resolution.
A resolution adopting a proposed amendment following such meeting must be
adopted by not less than seventy-five percent (75%) of the total number of
lot owners within the subdivision. Lot owners not present at a meeting
considering such amendment may vote by proxy.
C. Recording.
Owners may execute power of attorney designating an attorney-in-fact to
execute documents indicating the adoption of amendments. Such amendments
shall be reduced to writing and executed in such manner either by said
attorneys-in-fact or by the respective lot owners in such forms as to be
recordable in the Office of the Recorder of Howard County, Indiana.
22. In the event that
construction of a residential dwelling meeting the requirements of these
restrictions is not commenced on any lot within a period of two (2) years
from the date on which such lot is conveyed by the Developer to the
purchaser thereof, unless such two (2) year period is extended by a
written instrument duty executed by the Developer, the Developer , shall
thereupon have the right during he ensuing twelve (12) month period
commencing on the second anniversary date of such conveyance to repurchase
such lot from the current owner of such lot, free and clear of all liens
and encumbrances except current property taxes which shall be prorated to
the date of closing, at the same price at which the Developer sold such
lot to the original purchaser thereof, without payment of interest or any
other charges, upon the Developer serving written notice upon the current
owner of such lot of the Developer’s intention to exercise its option and
effect such repurchase, notwithstanding whether the current owner of
such lot was also the original purchaser thereof. The closer of such
repurchase shall take place at the Developer’s office not later than
thirty (30) days from the date of the giving of such written notice to the
current owner of such lot, who shall take such actions and shall execute
such documents, including a warranty deed to such lot, as the attorneys
for the Developer shall deem reasonably necessary to convey good title to
such lot to the aforesaid. This paragraph shall not be subject to the
amendatory provisions of Paragraph 21 herein.
23. The foregoing covenants,
restrictions, and conditions shall run with the land and shall be binding
upon all the parties claiming or owning any interest in the Real Estate or
any lot or parcel therein, until January 1, 2006, at which time said
covenants, restrictions, and conditions shall automatically be extended
for successive periods of ten (10) years, unless there is a vote of the
majority of the owners of the pending sites covered by these covenants,
restrictions, and conditions, and if any owner of person in possession
shall violate or attempt to violate any of these covenants, restrictions,
and conditions or to recover damages caused by such violations, and the
owner or owners shall pay court costs and reasonable attorney fees in the
event judgment is rendered against him or her or them.
24. Landscaping of the
decorative island (which shall be considered as common areas) shall be
maintained by the homeowners association. Additionally, electric for
street lighting shall be paid by the homeowners association.
25. Except as provided in
paragraph 1 hereof, the failure for any period of time to compel
compliance with any restriction, conditions, or covenants shall in no
event be deemed as waiver of the right to do so thereafter, and shall in
no way be construed as a permission to deviate from said restrictions,
conditions and covenants.
26. Invalidation of any of these
covenants by judgment or decree of court shall in no way effect any of the
other provisions hereof which shall remain in full force and effect.
27.
Neither the Developer nor
the Association guarantees or represents that any view over and across the
golf course from adjacent lots will be preserved without any impairment.
The owner of the golf course shall have no obligation to prune or trim
trees or other landscaping, and shall have the right in its sole and
absolute discretion, to add trees and other landscaping to the golf course
from time to time. In addition, the owner of the golf course may, in its
sole and absolute discretion, change the location, configuration, size and
elevation of the trees, bumpers, fairways, and greens on the golf course
from time to time. Any such additions or changes to the golf course may
diminish or obstruct any view from the lots and any express or implied
easements for view purposes or for the passage of light and air are hereby
disclaimed.
28. Every lot and the common
areas are burdened with an easement permitting golf balls to
unintentionally come upon such areas and for golfers at reasonable times
and in a reasonable manner to come upon the Common Areas, or the exterior
areas of a lot to retrieve golf balls. The existence of this easement
shall not relieve golfers of liability for damage caused by errant golf
balls. Under no circumstances shall any of the following entities be held
liable for any damage or injury resulting from errant golf balls or the
exercise of this easement: the Developer, the Association or its members,
any builder or contractor, any officer, director or partner of any of the
foregoing. |
