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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. 

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