Twin Creeks
Twin Creeks Homeowners Association
Indianapolis, IN
     
 

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DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS

FOR TWIN CREEKS Homeowners Association

 

 

THIS DECLARATION (hereinafter celled ìthe Declarationî or ìthis Declarationî made this 22nd day

of December, 1992, by Estridge Development Company, Inc. (hereinafter called Declarant.),

 

WITNESSETH:

 

WHEREAS, Declarant is the owner of the real estate in Marion County, Indiana, more particularly

described in Exhibit "A" attached hereto and incorporated herein by reference (hereinafter referred to

as the Real Estate); and

 

WHEREAS, Declarant is in the process of creating on the Real Estate a residential community to

be known generally as Twin Creeks, with a part to be known as Brookstone At Twin Creeks and a part

to be known as Fieldstone At Twin Creeks; and

 

WHEREAS, Declarant desires to provide for the preservation and enhancement of the values and

amenities in such community and the common facilities (if any) therein contained, and to this end,

Declarant desires to subject the Real Estate and each owner of all or part thereof to the terms of this

Declaration, as hereinafter provided; and

 

WHEREAS, Declarant deems it desirable, for the efficient preservation of the values and amenities

in said community, to create an agency to which shall be delegated and assigned the powers of owning,

maintaining and administering the common facilities (if any) located on the Property (hereinafter

defined), administering and enforcing the covenants and restrictions contained in this Declaration,

collecting and disbursing the assessments and charges imposed and created hereby and hereunder,

performing certain maintenance, and repairs as hereinafter provided, and promoting the health,

safety and welfare of the owners of the Property, and all parts thereof; and

 

WHEREAS, Declarant has caused, or will cause, to be incorporated under the laws of the State of

Indiana a nonprofit corporation under the name ìTwin Creeks Homeowners Association, Inc.î, or a

similar name, as such agency for the purpose of exercising such functions;

 

NOW, THEREFORE, Declarant hereby declares that the Property is and shall be held,

transferred, sold, conveyed, hypothecated, encumbered, leased, rented, used, improved and occupied  

subject to the provisions, agreements, conditions, covenants, restrictions, easements, assessments,

charges and liens hereinafter set forth, all of which are declared to he in furtherance of a plan for

preservation and enhancement of the Property; and are established and agreed upon for the purpose

of enhancing and protecting the value, desirability and attractiveness of the Property as a whole and of

each of the Lots situated therein, and which shall run with the Property and be binding upon all

parties having any right, title or interest in the Property, their heirs, successors and assigns.

 

ARTICLE I

 

DEFINITIONS

 

Section 1. The following words, when used in this Declaration or any supplemental declaration

(unless the context shall prohibit), shall have the following meanings:

 

A. "îApplicable Dateî shall mean the ìApplicable Dateî as defined and determined in accordance

with Section 3.B. of Article III hereof.

B. ìAssociationî shall mean The Twin Creeks Homeowners Association, Inc., an Indiana nonprofit

corporation which Declarant has caused, or will cause, to be incorporated under said name or a

similar name, its successors and assigns.

C. ìBoardî or ìBoard of Directorsî shall mean the board of directors of the Association.

D. ìDeclarantî shall mean Estridge Development Company, Inc. and any successors and assigns of

Declarant who it designates in one or more written recorded instruments to have the rights of

Declarant hereunder, including, but not limited to, any mortgagee acquiring title to any portion of the

Property pursuant to the exercise of rights under, or foreclosure of (or by acceptance of a deed in lieu

of foreclosure of), a mortgage executed by Declarant; provided, however, that any such mortgagee so

acquiring title by virtue of foreclosure against (or acceptance of a deed in lieu of foreclosure from) the

Declarant shall not be deemed to have assumed any prior obligations or liabilities of the Declarant

hereunder.

E. ìInitial Platî shall mean the subdivision plat(s) of the Real Estate.

F. îHomeî shall mean a residential housing unit designed or intended for use as living quarters for

one family or housekeeping unit.

G. ìLotî shall mean and refer to any and each plot of land included in the Property (with the

exception of Common Area) designed and intended for use as a building site for a Home, and

identified as a lot on any recorded subdivision plat of the Property or any part thereof (including the

Initial Plat).

H. ìMemberî shall mean any person or entity holding membership in the Association as provided

in Article m hereof.

I. ìMortgageî shall mean any mortgage or other security instrument by which a Lot or any part

thereof or any structure thereon is encumbered.

J. ìMortgagee'" shall mean any person or entity named as the Mortgagee under any such Mortgage

or any successors or assigns to the interest of such person or entity under such Mortgage prior to

acquisition of the fee simple title to the property encumbered by such Mortgage.

K. ìReal Estateî shall mean the parcel or parcels of real estate in Marion County, Indiana,

described in Exhibit ëAí attached to and incorporated in this Declaration.

L. ìOwnerî shall mean the record owner, whether one or more persona or entities, of the fee

simple title to any Lot which is a part of the Property, including contract sellers, but excluding those

having such interest merely as security for the performance of an obligation.

M. ìPersonî, whether appearing In upper case or lower case form, shall mean an individual, firm,

corporation, partnership, association, trust, or other legal entity, or any combination thereof.

N. ìPropertyî shall mean and refer to the Real Estate.

O. ìCommon Areaî shall mean (i) those parts, if any, of the Property shown upon any recorded

subdivision plat of the Property, or any part thereof (including the Initial Plat), which are not Lots

other than portions thereof (such as streets) which are dedicated to the public or not dedicated to the

public but are designated and used as streets, whether such plat is heretofore or hereafter recorded,

including all improvements and structures constructed or to be constructed thereon, and (ii) such

portions of the Property (if any) as are hereafter declared to be ìCommon Areaî by an instrument

executed and recorded by the Declarant, whether or not such areas comprise part or all of a lot or lots

shown upon any recorded subdivision plat of the Property.

P. ìUtility and Drainage Easementî (U. & D.E.) shall mean those parts, if any, of the property so

designated on any recorded Secondary Plat(s) of the Property, or any part thereof.

Q. ìLandscaping Easementî (L.S.E.) shall mean those parts, if any, of the Property so designated

on any recorded Secondary Plat(s) of the Property, or any part thereof.

R. ìLake Maintenance Easementî (L.M.E.) shall mean those parts, if any, of the Property so

designated on any recorded Secondary Plat(s) of the Property, or any part thereof.

S. ìSanitary Sewer Easementî (S.S.E.) shall mean those parts, if any, of the Property so designated

on any recorded Secondary Plat(s) of the Property, or any part thereof.

Section 2. Other terms and words defined elsewhere in this Declaration shall have the meanings

herein attributed to them.


ARTICLE II

 

PROPERTY SUBJECT TO THIS DECLARATION

 

Section 1. Declaration. Declarant hereby expressly declares that the Property shall be held,

transferred, sold, conveyed and occupied subject to all the terms, covenants, conditions, restrictions

and provisions of this Declaration. As of the date of execution of this Declaration, the Property consists

solely of the Real Estate. The owner of any Lot at any time subject to this Declaration, by (i) acceptance

of a deed conveying title thereto, or the execution of a contract for the purchase thereof, whether from

Declarant or a subsequent Owner of such Lot, or (ii) by the act of occupancy of any Lot, shall accept

such deed, execute such contract and undertake such occupancy subject to all of the terms, covenants,

conditions, restrictions and provisions of this Declaration. By acceptance of such deed, execution of

such contract or undertaking such occupancy, each Owner acknowledges the rights and powers of

Declarant and of the Association with respect to or under this Declaration, and, for himself, his heirs,

personal representatives, successors and assigns, covenants, agrees and consents to and with Declarant,

the Association, and the Owners and subsequent Owners of each of the Lots affected by this

Declaration, to keep, observe, perform and comply with the terms and provisions of this Declaration.

 

ARTICLE III

 

MEMBERSHIP AND VOTING RIGHTS IN ASSOCIATION

 

Section 1. Membership. Every Owner of a Lot, except as herein provided to the contrary, shall be

entitled and required to be a member of the Association. If title to a Lot is held by more than one

person, each of such persons shall be a member. An Owner of more than one Lot shall be entitled to,

and there shall be required, one membership for each such lot. Each such membership shall be

appurtenant to the Lot upon which it is baaed and shall transfer automatically by voluntary or

involuntary conveyance of the title of that Lot. Except as herein otherwise expressly provided, no

person or entity other than an Owner or Declarant may be a member of the Association, and a

membership in the Association may not be transferred except in connection with the transfer of title to

a Lot.

 

Section 2. Transfer. A membership in the Association shall not be transferred, pledged or alienated

in any way, except upon the transfer of the record title of a Lot and then only to such transferee, by

assignment, intestate succession, testamentary disposition, foreclosure of mortgage of record or other

legal process. It shall be the responsibility of each Owner, upon becoming entitled to membership, to

so notify the Association in writing, and until so notified, tile Association may continue to carry the

name of the former Owner as a member, in its sole discretion. Any attempt to make a prohibited

transfer is void and will not be reflected upon the books and records of the Association. In the event

the Owner of any Lot should fail or refuse to transfer the membership registered in his name to the

transferee of title of such Lot, the Association may issue a new membership to the transferee, and

thereupon the old membership outstanding in the name of the transferor shall be null and void as

though the same had been surrendered .

 

Section 3. Voting. The Association shall have two (2) classes of voting membership, as follows:

 

A. Class A. Class A members shall be all Owners of Lots, with the exception of the Declarant

prior to termination of Class B membership, and shall be entitled to one (1) vote for each lot

owned with respect to each matter submitted to a vote of members upon which the Class A

members are entitled to vote. When more than one person holds title to any Lot, all such persons

shall be members. The vote for such Lot shall be exercised as they among themselves determine,

but in no event shall more than one vote be cast with respect to any one Lot. There can be no split

vote. Prior to or at the time of any meeting at which a vote is to be taken, each co-Owner or other

person entitled to a vote at such meeting shall file with the Secretary of the Association the name of

the voting co-Owner or other person entitled to a vote at such meeting, unless such co-Owner or

other persona have filed a general voting authority with the Secretary applicable to all votes until

rescinded.

 

B. Class B. Class B. members shall be the Declarant and all successors and assigns of the

Declarant designated by the Declarant as Class B members in a written notice mailed or delivered

to the resident agent of the Association. Each Class B member shall be entitled, on all matters

requiring a vote of the membership of the Association, to five (5) votes for each single numbered

parcel of land owned by it and shown upon and identified as a Lot on any recorded plat of the

Real Estate. The Class B membership shall cease and terminate upon the first to occur of (a) the

date upon which the written resignation of the Class B members as such is delivered to the resident

agent of the Association; (b) one hundred twenty (120) days after all of the Lots in the Property

have been conveyed to Owners other than Declarant; (c) six (6) years after the date of recording of

the first conveyance of a Lot to an Owner other than Declarant; (the applicable date being herein

referred to as the Applicable Date). Declarant shall each be entitled to one (1) Class A membership

for each Lot of which it is the Owner on or after the termination of the Class B membership.

Section 4. Suspension of Voting Rights. In the event any Owner shall be in arrears in the payment

of any amount due under any of the provisions of the Declaration for n period of thirty (30) days, or

shall be in default in the performance of any of the terms of this Declaration for a period of thirty (30)

days, such Ownerís right to vote as a member of the Association shall be suspended and shall remain

suspended until all payments are brought current and all defaults remedied.

 

Section 5. Board of Directors. Following the Applicable Date, the Owners shall elect a Board of

Directors of the Association as prescribed by the Associationís Articles and By-Laws. The Board of

Directors shall manage the affairs of the Association. Until the Applicable Date, the Board shall consist

of three (3) persona designated by Declarant, as long as it shall own one or more lots.

 

 

ARTICLE IV

PROPERTY RIGHTS

 

Section 1. General Provisions.

 A. All easements described in this Declaration are permanent easements appurtenant, running

with the land. They shall at all times inure to the benefit of and be binding on the Owner and the

Mortgagee from time to time of any Lots and the owner and mortgagee, if any, from time to time

of the Common Area, and their respective heirs, successors, personal representatives or assigns.

B. The covenants and restrictions contained in this Declaration shall run with and bind the

land and shall inure to the benefit of and be enforceable by the Declarant, the Association or the

Owner of any Lot subject to this Declaration, their respective personal representatives, heirs,

successors and assigns, for an initial term commencing on the date this Declaration is recorded and

ending January 1, 2012, after which time the covenants and restrictions shall be automatically

renewed for successive periods of ten (10) years each, as the same may be amended or modified as

herein permitted and provided.

Section 2. Right of Enjoyment. Every Owner shall have a non-exclusive right and easement of

enjoyment in and to the Common Area limited, however, to and for the uses and purposes for which

any portion of the Common Area is designed and Intended. Such right and casement shall be

appurtenant to and shall pass with the title to every Lot, subject to the following provisions:

 

A. The right of the Association to pass reasonable rules, with respect to the Common Area, for

the health, comfort, safety and welfare of persons using the same;

B. The right of the Association to suspend the voting rights of an Owner for any period during

which any assessment against his Lot remains unpaid, and for a period not to exceed sixty (60)

days for an infraction of its published rules and regulations;

C. The right of the Association to levy assessments as provided in this Declaration; and

D. The rights of the Association and Declarant reserved under this Declaration.

 

Section 3. Associationís Rights and Obligations.

 

A. The Association shall have the obligation to manage, repair, maintain, improve and operate

the Common Area, and the Landscaping Easement and the landscaping, signage and other

improvements located therein.

B. The Association shall have the right to mortgage all or any portion of the Common Area for

the purpose of securing a loan of money to be used for any of the purposes specified in subsection

3.A. herein above, provided that the rights of such mortgagee in the Common Area shall be

subordinate to the rights of the Owners under this Declaration, and provided, further, that the

mortgagee shall have received the prior written approval specified herein below.

C. The Association shall have the right to grant permits, licenses, and easements over the

Common Area for utilities and other purposes necessary or useful for the proper maintenance or

operation of the project, subject to any prior written approval required herein below.

D. The Property shall be subject to easements of record on the date the various portions

thereof become subject to this Declaration, and to any easements in the Common Area which may

at any time be granted by Declarant or the Association (subject to the approval referred to in the

preceding paragraph) to any public or private utilities or governmental bodies for the installation

and maintenance of electrical and telephone conduit and lines, gas pipes, sewers or water pipes,

coaxial cable, or any other utility services serving any Lots or the Common Area.

 

Section 4. Declarantís Rights. Declarant shall have the same rights as any other Owner as to Lots

owned by it from time to time, except as otherwise specified herein. In addition, until the last single

numbered parcel of land shown upon, and Identified as a lot on any recorded plat(s) of the Real Estate

(whether heretofore or hereafter recorded, including the Initial plat) is conveyed to an Owner other

than Declarant, or until the Applicable Date (whichever event shall first occur), Declarant shall have

the right and easement over the Common Area for the completion of improvements and making

repairs to improvements (whether on the Common Area, or upon unsold Lots, or upon other portions

of the Real Estate and the right to maintain signs upon the Common Area and any other portions of

the Property [other than Lots owned by an Owner other than Declarant) for the purpose of marketing

homes, and to invite and escort the public thereon for each purpose.

 

Section 5. Non-Dedication to Public Uses. Nothing contained in this Declaration or in any

subdivision plat of any part of the Property shall be construed or be deemed to constitute a dedication,

express or implied, of any part of the Common Area to the public or to or for any public use or

purpose whatsoever, all of such Common Area being reserved to the Owners and the Association as

provided in this Declaration.

 

Section 6. Easement for Unintentional Encroachment. Notwithstanding any other provisions

contained herein, in the event that any Home or any improvement to any Home encroaches upon any

part of the Common Area, as a result of construction, reconstruction, repair, shifting, settlement or

movement of any part of the Property, then a perpetual easement appurtenant to such encroaching

Home shall exist for the continuance of any such encroachment on the Common Area.

 

Section 7. Title to Common Area. Declarant hereby covenants that It shall convey and transfer the

Common Area included in and constituting a part of the Real Estate to the Association prior to the first

conveyance of a Lot within the Real Estate to an Owner other than Declarant. The Common Area so

conveyed by Declarant to the Association shall, at the time of such conveyance, be subject to all

easements, covenants, conditions, limitations and restrictions then or record, but shall be free and clear

of all liens and financial encumbrances other than the lien of the then current non-delinquent

installment of real estate taxes and assessments and subsequent installments thereof, which shall

thereafter be paid when due by the Association. The Common Area shall be perpetually run with the

subdivision and shall not be developed separate from the cluster subdivision at a later date.

 

ARTICLE V

 

ASSESSMENTS

 

Section 1. Personal Obligations. Each Owner of a Lot by acceptance of a deed or other conveyance

therefore, whether or not it shall be so expressed therein, shall be and is deemed to covenant and agree

to pay to the Association: (a) annual assessments or charges, which shall be payable in regular

installments, for the payment or provision of all expenses of administration of the Association,

expenses for the upkeep, maintenance, repair and replacement of the Common Arena and the

Landscape Area Common Area, and all other expenses incurred or to be incurred by the Association

for or in connection with the performance by the Association of its duties, obligations and

responsibilities under this Declaration, which expenses may include, but shall not be limited to, the

expenses and costs of liability insurance for Common Areas and any other common property; snow

removal, and trash removal, (if provided by the Association); street lighting (if provided by the

Association); and an adequate reserve fund for the periodic maintenance, repair and replacement of

those improvements and elements of the Common Area and any other property that must be

maintained, repaired or replaced on a periodic basis and which the Association may be obligated to

maintain, and (b) special assessments for capital improvements, each assessments to be established and

collected as hereinafter provided. Any assessments authorized herein, together with interest, costs and

reasonable attorneysí fees, shall be a continuing lien from the first day of January (for annual

assessments) and from the date the first installment is payable (for special assessments) against the Lots

assessed. Such annual assessments shall be due and payable in advance on the first day of January of

each calendar year or, if so determined by the Association, in such other periodic installments as may

be specified by the Association. Each assessment, together with interest, costs and reasonable attorneysí

fees, shall also be the personal obligation of the person who was the Owner of such Lot on the date said

assessment became due and payable. Said personal obligation of an Owner shall not pass to his

successors in title or interest unless expressly assumed by them or unless, prior to such transfer, a

written notice of the lien for such assessments shall have been recorded in the office of the Recorder of

Marion County, Indiana. No Owner shall escape liability for the assessments which fell due while he

was the Owner by reason of non-use of the Common Area or non-use, transfer or abandonment of his

Lot or Home.

 

Section 2. Purpose of Assessments. The assessments levied by the Association shall be used

exclusively to promote the recreation, health, safety and welfare of the Owners and residents of the

Property, to construct, manage, improve, maintain, repair and administer the Common Area and the

Landscaping Easement and for payment of any other costs and expenses incurred by the Association in

connection with the performance of its duties, obligations and responsibilities hereunder. An adequate

reserve fund shall be maintained for working capital and for the periodic maintenance, repair and

replacement of those improvements and elements of tile Common Areas and the Landscaping

Easement and any other property or elements that must be replaced on a periodic basin Such reserve

fund shall be maintained out of the regular annual assessments.

 

Section 3. Annual Assessments. Until December 31,1994, the maximum annual assessment shall be

Two Hundred Dollars ($200.00) per Lot.

 

A. From and after December 31, 1994, the maximum annual assessments may be increased

each year not more than 10% above the maximum assessments permitted for the previous year, on

a cumulative basis, without a vote of membership.

B. From and after December 31, 1994, the maximum annual assessments may be increased by

more than 109 above the maximum assessments permitted for the previous year by a vote of two-

thirds (213) of the total votes Or the Members who are voting in person or by proxy, at a meeting

called for this purpose.

C. The Board of Directors may fix the annual assessments at any amount not in excess of the

maximum permitted hereby.

 

Section 4. Special Assessments. In addition to the annual assessments authorized above, the

Association may levy, in any assessment year, a special assessment applicable to that year only for the

purpose of defraying, in whole or in part, the coot of any construction, reconstruction, repair,

replacement, or maintenance of the Common Area and Landscaping Easement provided that any such

assessment shall have the assent of not less than two-thirds (2/3) of the total votes of the Members who

are voting in person or by proxy at a meeting duly called for this purpose.

 

Section 5. Notice and Quorum. Written notice of any meeting of Members called for the purpose

of taking any action authorized under Article V, Sections 3 or 4, shall be sent to all Members not less

than ten (10) days nor more than sixty (60) days in advance of the meeting. At the opening of such

meeting, the presence in person or by proxy of Members entitled to cast sixty percent (60%) of the

total votes of the membership shall constitute a quorum. If the required quorum is not present,

another meeting may be called subject to the same notice requirement, and the required quorum at

any subsequent meeting shall be one-half (hi) of the required quorum at the preceding meeting. No

such subsequent meeting shall be held more than sixty (60) days following the preceding meeting.

 

Section 6. Rate of Assessment. Both annual and special assessments must be fixed at a uniform rate

for all Lots. Annual assessments shall be collected on an annual basis (or other periodic basis, if and as

determined by the Board) and special assessments shall be collected as the Board determines. The

provisions of this Section 6 are subject to the provisions of Section 13 of this Article V as to all Lots

owned by Declarant and The Estridge Croup, Inc.

 

Section 7. Commencement of Initial Annual Assessments. The annual assessments provided for

herein shall commence as to each Lot subjected to this Declaration on the first day of the month

following the month of recording of the instrument by which each Lot is conveyed to an Owner,

subject to the provisions of Section 13 of this Article V as to all Lots owned by Declarant or The

Estridge Croup, Inc. The first annual assessment shall be adjusted according to the number of months

remaining in the calendar year for which such assessment is imposed.

 

Section 8. Commencement of Annual Assessments. By November 1 of each year the Board shall fix

the amount of annual assessments against each Lot for the following calendar year and shall send

written notice thereof to each Owner. The due date for payment of annual assessments shall be as set

by the Board. At the time the Board fixes the amount of annual assessments it shall adopt a budget for

the following calendar year and cause a copy of such budget in reasonable detail to be furnished to

each Owner.

 

Section 9. Proof of Payment. Upon written demand of an Owner or Mortgagee, at any time and

for a reasonable charge, the Association shall furnish a written certificate signed by an officer of the

Association setting forth whether there are any then unpaid annual or special assessments levied

against such Ownerís or Mortgageeís lots. Such certificate shall be conclusive evidence of payment of

any annual or special assessments not stated therein as unpaid.

 

Section 10. Nonpayment of Assessments. Any assessments which are not paid when due shall be

deemed delinquent. If an assessment is not paid within thirty (30) days after the delinquency date, it

shall bear interest from the delinquency date at the rate of twelve percent (12%) per annum and shall

become a continuing lien in favor of the Association on the Lot against which assessed and the

improvements thereon and the Association may bring an action at law or in equity against the person

personally obligated to pay the same, including interest, costs and reasonable attorneysí fees for any

such action, which shall be added to the amount of such assessment and included in any judgment

rendered in such action, and the Association may also enforce and foreclose any lien it has or which

may exist for its benefit.

 

Section 11. Recording and Enforcement of Liens. To evidence a lien for sums assessed pursuant to

this Article, the Association may prepare a written notice of lien setting forth the amount of the

assessment, the date due, the amount remaining unpaid, the name of the Owner of the Lot, the name

of the person personally obligated to pay the same and a description of the Lot. Such a notice shall be

signed by an officer of the Association and it or a notice of lien or adverse claim thereof may be

recorded in the Office of the Recorder of Marion County, Indiana. No notice of lien shall be recorded

until there is a delinquency in payment of the assessment for thirty (30) days. Upon such a delinquency

for thirty (30) days, the Association shall proceed promptly to enforce the lien or, in its discretion, to

sue the person personally liable to pay the lien for the delinquency. Such lien shall be enforced by

action in the same manner in which mortgages on real property may be foreclosed in Indiana. In any

such foreclosure, the person personally obligated to pay the lien shall be required to pay all costs of

foreclosure including reasonable attorneysí fees. All such costs and expenses shall be secured by the

lien being foreclosed. The person personally obligated to pay the lien shall also be required to pay to

the Association any assessments against the Lot which shall become due during the period of

foreclosure. The Association shall have the right and power to bid at the foreclosure sale or other legal

sale and to acquire, hold, convey, lease, rent, encumber, use and otherwise deal with the foreclosed

interest in the Lot as the Owner thereof.

 

The Association shall, upon written request, report to any Mortgagee of a Lot any assessments

remaining unpaid for longer than thirty (30) days after the same shall have become due, provided,

however, that such Mortgagee first shall have furnished to the Association written notice of the

Mortgage under which it claims and its notice address.

 

Section 12. Subordination of Lien. The lien of the assessments provided for herein shall be

subordinate to the lien of any first Mortgage (ìFirst Mortgageî) and to tax liens sod liens for special

assessments in favor of any taxing and assessing unit of government. The sale or transfer of any Lot

shall not affect the assessment lien. However, the sale or transfer of any Lot pursuant to mortgage

foreclosure or remedies provided in a First Mortgage, or any proceeding in lieu thereof, shall

extinguish the lien of such assessments as to charges which were payable prior to such sale or transfer.

No such sale or transfer shall relieve a Lot from liability for any assessments thereafter becoming

payable or from the lien thereof or shall relieve the person personally obligated to pay the same from

personal liability for assessments payable prior to each sale or transfer or acquisition. Any delinquent

assessments, the lien for which is extinguished by reason of this provision, may be reallocated and

assessed to all Lots as a common expense.

 

Section 13. Limitations on Assessments Owed by Declarant. Notwithstanding anything to the

contrary contained herein. neither the Declarant nor The Estridge Group Inc. shall be obligated to

pay, as to any and all Lots owned by it from time [to] time any assessments (whether regular annual

assessments or special assessments) payable hereunder by Owners.

 

ARTICLE VI

ARCHITECTURAL CONTROLS

 

 

Section 1. Architectural Control Committee Authority. No exterior additions, removals or alterations to

any building on the Property, additional fences, or changes in existing fences, hedges, walls, walkways

and other structures shall be commenced, erected or maintained except such as are installed or

approved by the Declarant in connection with the initial construction of the Home and other buildings

and improvements on the Property, until the written plans and specifications showing in reasonable

detail the nature, kind, shape, height, materials (including color), location and approximate cost of

same shall have been submitted to and approved in writing as to harmony of the external design and

location in relation to surrounding buildings in the Property by an Architectural Committee composed

of the Board of Directors of the Association or three (3) or more representatives appointed by the

Board of Directors. In the event Bald Board, or its designated Committee, fails to approve or

disapprove such design and location within thirty (30) days after acid written plane and specifications

have been submitted to it, or if no suit to enjoin the making of such additions, alterations or changes or

to force the cessation thereof has been commenced within sixty (60) days of such submission, such

approval will be deemed to have been given. If no such submission has been made to the Architectural

Committee, suit to enjoin or force the removal of such additions, alterations or changes may be

instituted at any time by the Association or any Owner. During the time which the Association has a

Class B member, the decisions of the Architectural Committee must have the written approval of the

Declarant. The approvals of the Architectural Committee required hereunder shall be in addition to,

and not in lieu of, any approvals as to such matters required to be obtained from any other persona or

governmental agencies pursuant to the terms of the Initial Plat, or any other plat or otherwise.

 

Section 2. Restoration in Accordance with Original Plans. Any restoration or repair of the exterior

of a Home, after a partial condemnation or damage due to fire or other casualty, shall be performed

substantially in accordance with this Declaration and the original plans and specifications for the same,

unless other action is approved by the Architectural Committee.

 

ARTICLE VII

 

OTHER RIGHTS AND OBLIGATIONS OF THE ASSOCIATION

 

Section 1. The Common Area. The Association, subject to the rights and obligations of the Owners

as set forth in this Declaration, shall be responsible for, and be vested with, the exclusive management

and control of the Common Area and all improvements (if any) thereon (including equipment related

thereto), and shall keep the same in good order and repair. Such responsibility (to the extent the same

is not otherwise herein declared or stated to be the obligation or responsibility of Owners of Lots) shall

include, but not be limited to, the maintenance and repair of the Common Area, and all other

improvements or material located within or used in connection with the Common Area, and the

Landscaping Easement.

 

Section 2. Services. The Association may obtain and pay for the services of any persons or entities,

to manage its affairs, or any part thereof, to the extent it deems advisable, as well as such other

personnel as the Association shall determine to be necessary or desirable for the proper operation of

the Property whether such personnel are furnished or employed directly by the Association or by any

person or entity with whom or which it contracts. The Association may obtain and pay for legal and

accounting services necessary or desirable in connection with the operation of the Property, the

enforcement of this Declaration or any proceedings or controversy in which the Board determines it is

necessary or advisable to have professional advice. The Association may arrange with others to furnish

trash collection and other common services to each Lot. Any agreement for professional management

of the Property, or any other contract providing for services by Declarant or an entity owned or

controlled by the same persona as Declarant, must provide for termination by either party without

cause and without payment of a termination fee on ninety (90) days or less written notice and by either

party for cause upon thirty (30) days or less written notice and shall have n maximum contract term of

one (1) year, but may be renewable by agreement of the parties for successive one-year terms.

 

Section 3. Personal Property for Common Use. The Association may acquire and hold for the use

and benefit of all of the Owners tangible and intangible personal property and may dispose of the

same by sale or otherwise. Such beneficial interest shall not be transferable except with the transfer of

title to a Lot, provided that an Owner may delegate his right of enjoyment of such personal property

(if any) to resident of his Lot. A transfer of title to a Lot shall transfer to the transferee ownership of

the transferorís beneficial interest in such property in accordance with the purpose for which it is

intended, without hindering or encroaching upon the lawful rights of other Owners. The transfer of

title to a Lot under foreclosure shall entitle the purchaser to the beneficial interest in such personal

property associated with the foreclosed Lot.

 

Section 4. Hazard and Liability Insurance for Common Property. The Association shall procure

extended coverage insurance on the Common Areas, reconstruction of such insurable Common Arena

and other common property, including insured improvements. The cost of such insurance shall be

assessed as provided in Article V above. lien holders of First Mortgages (ëFirst Mortgageesí) on Homes,

jointly or singly, may pay overdue premiums on hazard insurance policies, or may secure new hazard

insurance coverage on the lapse of a policy, for the Common Areas and other common property, and

First Mortgagees making such payments shall be owed immediate reimbursement therefore from the

Association. The Association is authorized to enter into an agreement in favor of all First Mortgagees of

Homes establishing entitlement to such reimbursement.

 

ARTICLE VIII

 

OWNERSí MAINTENANCE

 

Section 1. Upkeep and Maintenance. Each Owner shall be responsible for the upkeep and

maintenance of his Home and all other areas, features or parts of his Lot to the extent not otherwise

maintained by the Association.

 

ARTICLE IX

 

GENERAL RESTRICTIONS, OBLIGATIONS AND RIGHTS APPLICABLE TO PROPERTY

 

Section 1. Home and Lot Restrictions. No more than one Home shall be erected or maintained on

each Lot. No Home shall be used for purposes other than as a single family residence, nor shall any

trade or business of any kind be carried on within a Home or upon a Lot, nor shall any Lot or any part

thereof be leased, sublet, assigned or suffered to be used for transient occupancy, provided that none

of the following activities shall be considered a violation of this covenant:

 

A. The maintenance of model Homes and business and gales of rices by Declarant during the

construction and sale periods.

B. The maintenance of offices by the Association or its designated manager for purposes of

management of the Property.

C. Lease, rental or use of a Home for purposes consistent with this Section.

D. The use of a Home by an Owner for incidental office purposes to the extent permitted by

applicable zoning ordinances.

 

Section 2. Building Set-back Lines. Building set-back lines are established on the Plat. No building

or structure shall be erected or maintained between said set-back lines and the front or rear lot line (as

the case may be) of said lot.

 

Section 3. Home Size. No Home constructed on a Lot in the part of the Property designated as

Brookstone At Twin Creeks shall have less than 1200 square feet of floor area, exclusive of garages. No

Home constructed on a Lot in the part of the Property designated as Fieldstone At Twin Creeks shall

have less than 1500 square feet of floor area, exclusive of garages.

 

Section 4. Garages. No garage shall be erected on any Lot which is not permanently attached to the

Home, and no unenclosed storage area shall be erected. No enclosed storage area shall be erected on

any Lot which is not permanently attached to the 1 lame.

 

Section 5. Outbuildings. No trailers, shacks, outhouses, detached storage sheds or tool sheds of any

kind shall be erected or situated on any Lot, except that used by a builder during the construction of a

Home, which temporary construction structures shall be promptly removed upon completion of

construction of the Home.

 

Section 6. Driveways. Each driveway on a Lot shall be of concrete or asphalt material.

 

Section 7. Swimming Pools. No above-ground swimming pools shall be permitted in the Property.

 

Section 8. Solar Heat Panels. No solar heat panels shall be permitted in the Property.

 

Section 9. Access. All Lots shall be accessed from the interior streets of the Property.

 

Section 10. Trash. No Lot shall be used or maintained as a dumping ground for trash. Rubbish,

 

garbage or other waste shall be kept in sanitary containers. All equipment for storage or disposal of

such materials shall be kept clean and shall not be stored on any Lot in open public view. All rubbish,

garbage or other waste shall be regularly removed from a Lot and shall not be allowed to accumulate

thereon.

 

Section 11. Tanks. Any gas or oil storage tanks used in connection with a Lot shall be either buried

or located such that they are completely concealed from public view.

 

Section 12. Obstruction. There shall be no obstruction of the Common Area, nor shall anything be

kept or stored on any part of the Common Area without the prior written consent of the Association

except construction materials and equipment during the construction period or except as specifically

provided herein. Nothing shall be altered on, constructed in, or removed from the Common Area

except upon the prior written consent of the Association.

 

Section 13. Prohibition of Damage and Certain Activities. Nothing shall be done or kept on any lot

or in any Home or on or in any Common Area or any part thereof which would increase the rate of

insurance on the Property or any part thereof over what the Association, but for such activity, would

pay, without the prior written consent of the Association. Nothing shall be done or kept on any Lot or

in any Home or on or in any Common Area or any part thereof, which would be in violation of any

statute, rule, ordinance, regulation, permit or other validly imposed requirement of any governmental

body. No damage to, or waste of, the Common Area or any part thereof or of the exterior of the

Property Id buildings thereon shall be committed by any Owner or any invites or tenant of any Owner

and each Owner shall indemnify and hold the Association and the other Owners harmless against all

loss resulting from any such damage or waste caused by him or his invitees or tenants, to the

Association and other Owners. No noxious, destructive or offensive activity shall be allowed in any

Homes, on any Lots or in the Common Area or any part thereof, nor shall anything be done thereon

which may be or may become a nuisance to any other Owner or to any other person at any time

lawfully residing on the Property.

 

Section 14. Animals. No animals, rabbits, livestock, fowl or poultry of any kind shall be raised, bred

or kept in or on any Lot, except that household pets may be kept on Lots, subject to rules and

regulations adopted by the Board, provided that they are not kept, bred, or maintained for any

commercial purposes; provided, further, that any such pet causing or creating a nuisance or

unreasonable disturbance shall be permanently removed from the Property subject to these restrictions

upon three daysí written notice from the Board, and provided further, that upon written request of

25% of the voting power of the Association, the Board of Directors shall have the authority to, and shall

order the removal of, any pet.

 

Section 15. Storage. Outside storage of any items, including but without limiting the generality of

the foregoing, sporting equipment, toys, outdoor cooking equipment, yard and garden tools and

equipment and trash and garbage containers, shall not be allowed unless screened from view by

enclosures so as to be effectively screened from view outside the lot upon which the same are located.

The design of such screened enclosure must be approved by the Association in accordance with the

architectural control provisions hereof. The storage or collection of rubbish of any character

whatsoever, any material that emits foul or obnoxious odors, the growing of any noxious or illegal

weed or other natural substance, and the harboring of the source of any noise or activity which disturbs

the peace, comfort or serenity of residents is prohibited. Usual household trash and garbage shall be

regularly collected and may be kept outside only if in sanitary containers which are so screened.

Notwithstanding the foregoing, no boats, snowmobiles, recreational vehicles, trailers, camping vehicles,

buses, mobile homes, tractor/trailers, trucks, motorcycles, mini-bikes, mopeds, unlicensed or

inoperable vehicles, or any other vehicles of any description other than normal passenger automobiles

(including station wagons and small trucks such as pickups and vane) shall at any time be stored or

parked on any Lot outside of a garage, or on any street within the Property, or on any part of the

Common Area, either permanently or temporarily.

 

Section 16. Signs. No signs of any kind (other than designations, in such styles and materials as the

Association shall by rule or regulation approve, of street addresses and names of occupants) shall be

displayed to the public view on any Lot, except that a îFor Saleî or ìFor Leaseî sign may be displayed

on a Lot which is being offered for sale or lease provided that it is in such form, style and location as

the Board may require, and except that Declarant shall be permitted to erect and maintain upon the

Property such signs as it deems appropriate to advertise the development during the construction and

sale periods.

 

Section 17. Antennae and Satellite Dish. Except with the prior written approval and the

authorization of the Board, no exterior television, radio antennae, or satellite dish of any sort shall be

placed, allowed or maintained upon any portion of the improvements or structures to be located upon

the Property, or on the Property itself.

 

Section 18. Rentals. Any lease between an Owner and a lessee shall provide that the terms of the

lease shall be subject in all respects to the provisions of this Declaration and the Articles of

Incorporation and By-Laws of the Association, and that any failure by the lessee to comply with the

terms of such documents shall be a default under the lease. All leases shall be in writing. No Home or

Lot may be leased for a period of less than 90 days. Other than the foregoing, there shall be no

restrictions on the right of any Owner to lease his Home.

 

Section 19. Rules and Regulations. The Board may adopt, and may amend, modify, rescind and

cancel, such other rules and regulations from time to time governing she use and enjoyment of the

Property, including the Common Area, as the Board in its sole discretion deems appropriate or

necessary.

 

Section 20. Accessory Outbuilding Prohibited. No accessory outbuildings shall be erected on any

Lot or Lots without the prior written approval of the Committee.

 

Section 21. Occupancy or Residential Use of Partially Completed Home Prohibited. No Home shall

be occupied or used for residential purposes or human habitation until it shall have been substantially

completed for occupancy in accordance with the approved building plan. The determination of

whether the Home shall have been substantially completed in accordance with the approved building

plan shall be made by the Committee and such decision shall be binding on all parties.

 

Section 22. Other Restrictions. The Property shall be subject to the easements, restrictions and

limitations of record, and to all governmental zoning authority and regulations affecting the Property,

all of which are incorporated herein by reference.

 

Section 23. Right to Perform Certain Maintenance. In this event that the Owner of any Lot in the

Property shall fail to maintain his Lot and any improvements situated thereon in accordance with the

provisions of this Declaration. Declarant shall have the right, but not the obligation, by and through its

agents and employees or contractors, to enter upon said Lot and repair, clean or perform such other

acts as may be reasonably necessary to make such Lot and improvements thereon, If any, conform to

the requirements of this Declaration. The cost therefore to Declarant shall be collected in a reasonable

manner from Owner. Declarant or its agents, employees or contractors shall be liable for any damage

which may result from any maintenance work performed hereunder. Upon the Applicable Date, the

Association shall succeed to and be vested with the rights of the Declarant and provided for in this

 

Section 24. Development and Sale Period. Nothing contained in this Article IX shall be construed or

interpreted to restrict the activities of Declarant and The Estridge Group, Inc., in connection with the

development of the Property and sale of Lots. Declarant and The Estridge Croup, Inc. shall be entitled

to engage in such activities and to construct, install, erect and maintain such facilities, upon any

portion of the Property at any time owned or leased by Declarant or The Estridge Croup, Inc., as in

the sole opinion of Declarant or The Estridge Croup, Inc. may be reasonably required, or convenient

or incidental to, the development of the Property and sale of the Lots; such facilities may include,

without limitation, storage areas, signs, parking arena, model residences, construction offices, sales of

Thea, business offices, and a construction entrance.

 

Section 25. Porches. The front entry porches on the homes located in the part of Twin Creek

designated as Brookstone At Twin Creeks (Porches) shall not be enclosed or used for storage purposes

and shall at HI times be maintained by Owner in a good state of appearance and cleanliness. The

Porches shall not be structurally modified or altered without the prior written approval of the

Declarant until the end of the Development Period and thereafter by the Association.

 

ARTICLE X

 

RIGHTS FOR THE PROTECTION OF FIRST MORTGAGEES

 

Section 1. Precedence. The provisions of this Article take precedence over any other conflicting

provisions of this Declaration.

 

Section 2. Notice of Action. Upon written request to the Association, identifying the name and

address of the holder, insurer or guarantor of a First Mortgage on a Lot or Home and the address of

such party (a holder of a First Mortgage on a Lot or Home who has so requested such notice shall be

referred to herein as an Eligible mortgage holder and an insurer or governmental guarantor of a First

Mortgage on a Lot or Home who has so requested such notice shall be referred to herein as an Eligible

insurer or guarantors), any such eligible mortgage holder or eligible insurer or guarantor will be

entitled to timely written notice of:

 

(A) Any condemnation loss or any casualty loss which affects a material portion of the project or

any lot or Home on which there is a First Mortgage held, insured, or guaranteed by such eligible

mortgage holder or eligible insurer or guarantor, as applicable;

(B) Any delinquency in the payment of assessments or charges owed, or any other default in the

performance of any obligation under the Declaration, By-Laws or Articles of Incorporation by an

Owner of a Lot or Home subject to a First Mortgage held, insured, or guaranteed by such holder or

insurer or guarantor, which remains uncured for a period of 60 days;

(C) Any lapse, cancellation or material modification of any insurance policy or fidelity bond

maintained by the Association;

(D) Any proposed action which would require the consent of a specified percentage of mortgage

holders as specified in this Article; and

(E) Any default in the performance by the Owner of any obligation under the Declaration or By-

Laws which is not cured within sixty (60) days.

Section 3. No Right of First Refusal. The right of an Owner to sell, transfer, or otherwise convey

his Lot or Home will not be subject to any right of fires refusal or any similar restriction in favor of the

Association or other Owners.

 

Section 4. Liability for Unpaid Assessments. Any First Mortgagee who obtains title to or comes into

possession of a Lot pursuant to the remedies provided in its First Mortgage or by foreclosure of the

First Mortgage or by deed or assignment in lieu of foreclosure, and any purchaser at a foreclosure sale

in connection with any such First Mortgage shall not be liable for the unpaid assessments of the Lot

which were payable prior to the acquisition of title to or possession of such Lot by the First Mortgagee.

 

Section 5.A. Certain Amendments. In addition to other requirements set forth herein, unless at

least seventy-five percent (75%) (or such higher percentage as is required by law or this Declaration) of

the First Mortgagees of the Lots or their assigns (based upon one vote for each First Mortgage owned),

and at least seventy-five (75%) (or such higher percentage as is required by law or this Declaration) of

the Owners (other than any sponsor, developer, or builder including the Declarant) or the Lots (based

upon one vote for each Lot owned) have given their prior written approval, neither the Association

nor the Owner shall be entitled to:

 

(A) terminate the legal status of the project (except in accordance with procedures set forth in this

Declaration and the By-Laws in the event of amendment or termination made as a result of

destruction, damage or condemnation);

(B) by act or omission, seek to abandon, petition, subdivide, encumber, sell or transfer the

Common Area; provided, however, that the granting Or easements for public utilities or for other

public purposes consistent with the intended use of the Common Area shall not be deemed such a

transfer;

(C) use hazard insurance proceeds for losses to any Common Area or other common property for

other than the repair, replacement or reconstruction of such common property;

(D) add or amend any material provisions of this Declaration which establish, provide for, govern

or regulate any of the following:

(1) Voting:

(2) Assessments, assessment liens or subordination of such liens;

(3) Reserves for maintenance, repair and replacement of the Common Area (or exterior

maintenance of Homes if applicable);

(4) Insurance of Fidelity Bonds;

(5) Rights to use Common Area;

(6) Responsibility for maintenance and repair of the several portions or the project;

(7) Expansion or contraction of the project or the addition, annexation or withdrawal of

property to or from she project;

(8) Boundaries of any Lot;

(9) The interests in the general Common Area;

(10) Convertibility of Lots into Common Area or of Common Area into Lots;

(11) Leasing of Lots or Homes;

(12) Imposition of any right of first refusal or similar restriction on the right of Owner to sell,

transfer, or otherwise convey his or her Lot or Home

(13) Any provisions which are for the express benefit of First Mortgage

holders, eligible mortgage holders or eligible insurers or guarantors

of First on Lots; except in accordance with procedures set forth in this Declaration and the By-Laws in the event of amendment or termination made as a result of destruction, damage or condemnation or with respect

to a reallocation of interests in the Common Areas which might occur pursuant to any plan of

expansion or phased development contained in this Declaration;

 

(E) By act or omission change, waive or abandon any scheme of regulations, or enforcement

thereof, pertaining to the architectural design or the exterior appearance of Homes.

For purposes of this section, an addition or amendment to such documents shall not be considered

material if it is made (I) for the purpose of correcting clerical, typographical or technical errors, (II) for

clarification only, (III) to comply with requirements of the Federal National Mortgage Association, the

Government National Mortgage Association, the Federal Home Loan Mortgage Corporation. the

Department of Housing and Urban Development, or any other governmental agency or any other

public, quasi-public or private entity which performs (or may in the future perform) functions similar

to those currently performed by such entities, (IV) to induce any of the agencies or entities mentioned

or referred to in subsection m herein above to make, purchase, sell, insure or guarantee First

Mortgages covering Lots and Homes, or (V) to bring such documents into compliance with any

statutory requirements, and any such addition or amendment to such documents which is so

considered not to be material may be made by Declarant acting along and without the consent,

approval or Joinder of the Owners. the Association, any First Mortgagees, any other mortgagees or any

other person.

 

An eligible mortgage holder who receives a written request to approve additions or amendments

who does not deliver or mail to the requesting party a negative response within 30 days shall be

deemed to have approved such request.

 

Section 5.B. FHA/VA Approval. As long as there is a Class B Membership, the following actions will

require the prior approval of the Federal Housing Administration or the Veterans Administration if, at

the time such actions are taken, the Federal Housing Administration or the Veterans Administration is

then the Owner of a Lot, an eligible mortgage holder or an eligible insurer or guarantor:

 

(A) dedication to the public or to or for any public use or purpose of any part of the Common

Area; provided, however, that such approval is not and shall not be required for the granting of

easements to utility companies, public or private, for the installation, maintenance repair, replacement

and servicing of equipment and facilities necessary to provide all utility services to the Property; and

(B) amendment of this Declaration; provided however, that such approval is not and shall not be

required for any amendment or supplement to this Declaration made by Declarant or the owners of

the Conveyed Lots for any purposes set forth in Subparagraphs (I) through (V), inclusive, of Section

5.A. herein above.

 

Section 6. Examination of Books and Records. First Mortgagees and holders, insurers and

guarantors of First Mortgages shall have the right to examine the books and records of the Association,

as set forth more fully in the By-Laws.

 

Section 7. Payments of Taxes and Insurance. First Mortgagees may, jointly or singly, pay taxes or

other charges which are in default and which may or have become a charge against any Common Area

or other common property and may pay overdue premiums on hazard insurance policies or secure

new hazard insurance coverage on the lapse of a policy for the Common Area or other common

property, and First Mortgagees making such payments shall be owed immediate reimbursement

therefore from the Association.

 

Section 8. Designation of Representative. Any holder of a First Mortgage on a Lot or Homo may

designate a representative to attend meetings of members, but no such representative shall have any

voting privileges unless such voting privileges have been granted to the holder of such First Mortgage

by the Owner of the Lot involved.

 

Section 9. Distribution Of Insurance Proceeds and Condemnation Awards. No provision of this

Declaration or the By-Laws shall be construed as giving to the Owner or to any other party priority

over any rights of First Mortgagees of Lots pursuant to their First Mortgages in the case of a

distribution to Owners of insurance proceeds or condemnation awards for losses to or a taking of

Common Area or other common property.

 

ARTICLE XI

 

INSURANCE

Section 1. Maintenance of Insurance. Commencing not later than the time of the first conveyance of a

Lot to an Owner other than Declarant, the Association shall maintain, to the extent reasonably

available and necessary, the following insurance, all of which shall be issued by insurance carriers

meeting at least the minimum requirements of, and shall otherwise comply with the requirements of,

the agencies and entities mentioned or referred to herein, to-wit:

 

(A) Master or blanket type of policy of fire insurance with extended coverage endorsement

(including vandalism, sprinkler leakage (if appropriate), debris removal, cost of demolition, malicious

mischief, windstorm and water damage) insuring the Common Area (including all of the fixtures

installed therein). Said policy shall afford, as a minimum, protection against the following:

(1) loss or damage by fire and other perils normally covered by the standard extended

coverage endorsement;

(2) all other perils which are customarily covered with respect to projects similar in

construction, location and use, including all perils normally covered by the standard All

risks endorsement, where such is available. The name of the insured under such policies

must be set forth therein substantially as follows:

 

ìThe Twin Creeks Homeowners Association, Inc. for the use and benefit of the individual

Ownersî.

 

The policies may also be issued in the name of an authorized representative of the

Association, including any Insurance Trustee with whom the Association has entered into

an Insurance Trust Agreement, or any successor to such trustee, for the use and benefit of

the individual Owners. Loss payable shall be in favor of the Association (or Insurance

Trustee), as a trustee for each Owner and each such Ownerís First Mortgagee. Each Owner

and each such Ownerís First Mortgagee, if any, shall be beneficiaries of the policy with

respect to the Common Area equally with each other Lot. Policies must provide for the

recognition of any Insurance Trust Agreement.

 

(B) Workmanís compensation, occupational disease and like insurance (if the Association has

eligible employees);

(C) Comprehensive public liability insurance in such amounts and with such coverage as the

Board of Directors shall from time to time determine, but at least:

(1) covering events occurring anywhere on the Common Area (and public and private

ways) or arising out of or in connection with the Use, ownership or maintenance of the

Common Area;

(2) covering without limitation, legal liability of the insured for property damage, bodily

injuries and deaths of persons in connection with the operation, maintenance or use of

the Common Area, and legal liability arising out of lawsuits related to employment

contracts of the Association, and such other coverage's as are customarily covered with

respect to projects similar in construction, location, and use;

(3) insuring each officer and member of the Board of Directors, the managing agent and

each Owner and with cross liability endorsement to cover liabilities of the Owners as a

group to an Owner and with a ìSeverability of Interest Endorsementî which would

preclude the insurer from denying the claim of an Owner for the negligent act of

another Owner, occupant or the Association; and

(4) in amounts generally required by private institutional mortgage investors for projects

similar in construction, location and use. (However, such coverage shall be for at least

$1,000,000 for bodily injury, including deaths of persons and property damage arising

out of a single occurrence.)

(D) Such other insurance as the Board of Directors may determine.

(E) All such policies must provide that they may not be canceled or substantially modified by

any party without at least 10 days prior written notice to the Association and to each holder Or

a First Mortgage which is listed as a scheduled holder of a First Mortgage in the insurance

policy.

 

Section 2. Ownersí Individual Policies. Each Owner should carry, and shall be responsible for

carrying, insurance for his own benefit insuring his personal liability, his Lot, his Home, and other

personal property, and fixtures, furniture, furnishings, and other personal property, and fixtures and

other property supplied or installed by him or a previous Owner or tenant.

 

Section 3. Insurance Trustee. Notwithstanding any of the--foregoing provisions and requirements

relating to property or liability insurance, there may be names as an insured, on behalf of the

Association, the Associationís authorized representative, including any trustee with whom the

Association may enter into any Insurance Trust Agreement or any successor to such trustee (each of

whom shall be referred to herein as the coinsurance Trustee), who shall have exclusive authority to

negotiate losses under any policy providing such property or liability insurance. Any Insurance

Trustee meat be a corporation or association organized or authorized to do business under the laws of

the State of Indiana, and authorized and permitted by its charter documents and by state law to

conduct a trust business.

 

Section 4. Insurance Premiums. Insurance premiums for any blanket property insurance coverage,

and the other insurance coverage's purchased by the Association, shall be common expenses to be paid

by assessments levied by the Association, and such assessments shall be held in a separate escrow

account of the Association and used solely for the payment of the blanket property insurance

premiums and other insurance premiums as such premiums become due.

 

ARTICLE XII

 

EMINENT DOMAIN

 

Section 1. The Association shall represent the Owners in any condemnation proceedings and in

any negotiations, settlements and agreements with the condemning authority for acquisition of the

Common Area, or part thereof, and by acceptance of a deed for his, her or its Lot, each Owner

appoints the Association as such Ownerís agent and attorney-in-fact for such purposes. In the event of

a taking or acquisition of part or all of the Common Area by a condemning authority, the award or

proceeds of settlement shall be payable to the Association, or other trustee (such as a bank or title

insurance company appointed as such by the Association), for the use nod benefit of the Owners and

their Mortgagees as their interests may appear.

 

Section 2. Reconstruction. In the event of a partial taking of the Common Area (or conveyance in

lieu thereof the Association shall promptly cause the remaining portions of the Common Area to be

restored functionally and aesthetically to reasonably the same condition as before the taking, using so

much of the proceeds of such taking for such purpose as shall be reasonably necessary. In the event of

a total taking of the Common Area (or conveyance in lieu thereof), and the project is terminated by the

election herein above required, the proceeds shall be allocated equally among each Lot, payable jointly

to the Owners and mortgage holders thereof.

 

ARTICLE XIII

 

GENERAL PROVISIONS

 

Section 1. Enforcement. Enforcement of these covenants and restrictions and of the provisions

contained in the Articles of Incorporation and By-Laws of the Association may be by any proceeding at

law or inequity instituted by the Association or by any Owner against any person (including the

Association) violating or attempting to violate any covenant or restriction, either to restrain violation,

to compel compliance, or to recover damages, and against the land, to enforce any lien created by

these covenants; and failure by the Association or by any Owner to enforce any covenant or restriction

herein contained shall in no event be deemed a waiver of the right to do so thereafter. Attorneys' fees

and costs of any such actions to restrain violation or to recover damages as determined by the court

shall be assessable against and payable by any persons violating the terms contained herein.

 

Section 2. Mergers. Upon a merger or consolidation of the Association with another corporation as

provided in its Articles and By-Laws, its properties, rights and obligations may, by operation of law, be

transferred to another surviving or consolidated association or corporation, or, alternatively, the

properties, rights and obligations of another corporation may, by operation of law, be added to the

properties, rights, and obligations of the Association as a surviving corporation pursuant to a merger.

flee surviving or consolidated corporation may administer the covenants and restrictions established

upon any other properties as one scheme. No such merger or consolidation, however, shall effect any

revocation, change or additions to the covenants established by this Declaration within the Property,

except as herein above provided.

 

Section 3. Severability. Invalidation of any one or more of these covenants or restrictions by

legislation, judgment or court order shall in no way affect any other provisions which shall remain in

full force and effect.

 

Section 4. Notices. Any notice required to be sent to any Member of the Association under the

provisions of this Declaration shall be deemed to have been properly sent when mailed, postage

prepaid, to the last known address of such Member appearing on the records of the Association at the

time of such mailing.

Section 5. Captions. The Article and Section headings herein are intended for convenience of

reference only and shall not be given any substantive effect.

Section 6. Construction. In the event of an apparent conflict between this Declaration and the By-

Laws, the provisions of this Declaration shall govern.

 

ARTICLE XIV

 

AMENDMENT

 

Except as hereinafter provided, this Declaration may be amended prior to the Applicable Date by

an instrument signed by not less than ninety percent (90%) of the Owners and thereafter by an

instrument signed by not less than seventy-five (75%) of the Owners. Certain amendments also require

additional approval as specified in this Declaration.

 

The foregoing notwithstanding, none of the rights or duties of Declarant or The Estridge Croup,

Inc. reserved or set out hereunder may be amended or changed without Declarant's and The Estridge

Group, Inc.'s prior written approval as the case may be so long as either owns a Lot or Lots. lithe

foregoing not withstanding, this Declaration may also be amended by Declarant at any time prior to

the Applicable Date, if it has an ownership interest in the Property.

 

ARTICLE XV

 

Violation or threatened violation of these covenants and restrictions shall be grounds for an action

by the Declarant and Association, any person or entity having any right, title or interest in the Real

Estate (or any part thereof), or any person or entity having any right, title or interest in a Lot which is

now or hereafter made subject to the Declaration, and all persons or entities claiming under them,

against the person or entity violating or threatening to violate any such covenants or restrictions.

Available relief in any such action shall include recovery of damages or other sums due for such

violation, injunctive relief against any such violation or threatened violation, declaratory relief, and the

recovery of costs and attorneys' fees incurred by any party successfully enforcing these covenants and

restrictions; provided, however, that neither the Declarant nor the Association shall be liable for

damages of any kind to any person for failing to enforce or carry out such covenants or restrictions.

 

ARTICLE XVI

 

Section 1. Utility and Drainage Easement. There are parts of the Property on the Plat marked

ìDrainage and Utility Easement. and Sanitary Sewer Easement. either separately or in combination.

The Utility Easement and Sanitary Sewer Easement are hereby created and reserved for the use of all

public utility companies (not including transportation companies), governmental agencies, the

Association, and the Declarant during the Development Period for access to and installation,

maintenance, repair or removal of poles, mains, ducts, drains, lines, wires, cables and other equipment

and facilities for the furnishing of utility services, including cable television services and for access to

and installation, repair or removal of a sanitary sewer system. The Drainage Easement is hereby

created and reserved: (1) for the use of Declarant during the Development Period. (as such term is

deemed in the Declaration) for access to and installation, repair or removal of a drainage system, either

by surface drainage or appropriate underground installations, for the Real Estate and adjoining

property and (ii) for the use of the Association and the appropriate governmental agency for access to

and maintenance, repair and replacement of such drainage system; provided, however, that the owner

of any Lot subject to a Drainage Easement shall be required to keep the portion of said Drainage

Easement on a lot free from obstructions so that the surface water drainage will be unimpeded. The

delineation of the Utility Easement and Drainage Easement areas on the plat shall not be deemed a

limitation on the rights of any entity for whose use and such easement is created and reserved to go on

any lot subject to such easement temporarily to the extent reasonably necessary for the exercise of the

rights granted to it by this Section 1. No permanent structures shall be erected or maintained upon

said easements. The owners of Lots shall take and hold title to the Lots subject to the Utility Easement,

Drainage Easement and, Sanitary Sewer Easement herein created and reserved.

 

Section 2. Landscaping Easement. The Landscaping Easement shall be used for the Aesthetic and

Visual enjoyment of the Owners of Lots. The landscaping and signage located with this area shall be

maintained by the Association and the Association shall have an easement of ingress and egress on and

over such area for the purpose of maintenance.

 

ARTICLE XVII

 

Section 1. Easements. The Lots in the part of Twin Creeks designated as Brookstone at Twin

Creeks shall be conveyed with easements over the adjacent lot or subject to easements for the benefit of

the benefit lot as more particularly described on the drawing attached hereto as Exhibit n. The

following rules prescribe the terms, conditions and use of such easements, both by the owner of the

easement (the dominant tenement) and the owner of the fee under the easement (the servient

tenement).

 

a. The dominant tenement shall have the right to use the easement for landscaping, fencing,

us a general recreational and garden area. The dominant tenement shall have the obligation of

maintaining the easement and for such purposes the dominant tenement and its agents shall

have an easement of ingress and egress.

b. The dominant tenement shall not use the easement for any other use including permanent

installation of any sort (except fencing).

c. The servient tenement shall have the right at all reasonable times to enter the easement

area, including crossing over the dominant tenement for such entry, in order to perform work

related to the usage of the servient tenement.

d. The servient tenement shall have the right to drainage over. across and upon the easement

for water resulting from the normal usage of the servient tenement and the dominant

tenement shall maintain the easement area in such manner as will not interfere with such

drainage.

e. The dominant tenement shall not attach any object to a wall or building belonging to the

servient tenement.

f. The dominant tenement, except as otherwise provided in this paragraph. shall have the

exclusive use of the surface of the easement area subject to the rights of any other easement

holders (utilities, sewers, etc.), if any, and subject to minor encroachments, if any, existing at

the time of the creation of the easement including overhangs, eaves, etc. over the easement

area which are part of the structure located on the servient tenement.

IN WITNESS WHEREOF, Declarant, by its President, has caused this document to be executed as

of the day and year first above written.

 

DECLARANT,

Estridge Development Company, Inc.

By:

Paul E. Estridge, Jr., President

 

 

STATE OF INDIANA COUNTY OF HAMILTON

Before me, a Notary Public, personally appeared Paul E. Estridge, Jr., the President of Estridge

Development Company, Inc., this 22nd day of December, 1992.

 

Phylis Updike, Notary Public My commission Expires 4-18-96

County of Residence: Hamilton

Part of the Southeast Quarter of Section 36, Township 17 North, Range 2 East, Second Principal

Meridian, Marion County, Indiana more particularly described as follows:

 

Beginning at the Southwest corner of said Southeast Quarter; thence North 01î17í24î East

(assumed bearing) along the West line of said Quarter 2663.13 feet to a stone found marking the

Center of Section 36; thence North 89î47í05î East along the North line of said Quarter 1067.99 feet to

the West line of the property described in a deed recorded as Instrument No. 880061172 in the Office

of the Recorder of Marion County, Indiana; thence South 00î58í35î West along said West line 828.20

feet to the Southwest corner of the property described in said deed; thence North 89î51í05î East along

the South line of said property 587.24 feet to the survey centerline of Georgetown Road (Indianapolis

Department of Transportation project MTA-CP67-10A, Coffman Road; thence South 00î27í56î East

along said centerline 1839.37 feet to the South line of said Quarter Section; thence North 90î00í00î

West along said South line 1716.00 feet to the Point of Beginning, containing 91.53 acres, subject to

highways, rights-of-way, and easements.

 

EXCEPT THE FOLLOWING:

 

Part of the Southeast Quartet of Section 34 Township 17 North, Range 2 East, Second

Principal Meridian, Marion County, Indiana, more particularly described as follows:

 

Commencing at the Southeast corner of said Southeast Quarter, thence South 90î00í00î West

(assumed bearing) along the South line of said Southeast Quarter 1003.678 feet to a point; thence

North 00î27í56î West 797.64 feet; thence South 89î32í04î West 270.00 feet; thence South 00î27í56î

East 795.45 feet; thence North 90î00í00î East 270.01 feet to the Point of Beginning: containing 4.94

acres more or less; subject to all highways, rights-of-way, and easements.

 

For information purposes only.

Transcribed from Document Filed January 29, 1993.

 

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