DECLARATION OF COVENANTS, EASEMENTS AND RESTRICTIONS OF ESSEX PARK This Declaration of Covenants, Easements, and RESTRICTIONS OF ESSEX PARK is made this 5th day of February, 2001, by Essex Park, LLC
A. Declarant is the owner of the real property described in Exhibit “A” attached hereto and incorporated herein by reference (the “Property”);
B. Declarant desires to create on the property, a residential community called Essex Park which if carried to the full and final completion, will contain no more than 154 residential dwelling units of single family and duplex homes (the “Development”). As part of the Essex Park plan development, various community facilities, such as walks, roads, landscaping, open spaces, greenbelts, walking trails, community center, storm water drainage and retention systems, fencing and parking area are or may be provided for the benefit and enjoyment of the residents of Essex park.
C. Declarant intends by this Declaration to impose upon the Development mutually beneficial restrictions under a general plan on improvement for the benefit of all Essex Park residents by recording of this Declaration.
D. Declarant intends to sell and convey the residential lots situated within the platted, to be platted, or annexed areas of Development and before doing to desires to subject all real estate within the platted, to be platted, or annexed areas of the Development mutual and beneficial restrictions, covenants, and easements (hereafter referred to as the (“Restrictions”) under a general plan of improvement for the benefit and complement of the Lots and lands in the Development and future homeowners.
E. The Declarant has formed (or intends to form) the Essex Park Property Owners Association, Inc. or an organization of similar name, as a not-for-profit corporation under the general laws of the State of Indiana for the purpose of carrying out the powers and duties of the Association.
F. The Declarant intends to convey all/or any portion of the Common Area from time to time in simple fee title, free of financial encumbrances to the Essex Park property Owners Association, Inc. subject to easements, restrictions of record and such other conditions as the Declarant may at the time of such conveyance deem appropriate.
II. COVENANTS AND RESTRICTIONS
NOW THEREFORE, Declarant hereby as follows:
1. That all the Development described in Exhibit A, and any additional property as may be subsequent amendment may be added to and subject to this Declaration shall be held, sold and conveyed subject to the following Restrictions.
2. The purpose of the Restrictions is to protect the value and desirability of the Property.
3. The Restrictions shall run with the Property subject to this Declaration and shall be binding on all parties having any right, title, or interest in the described Development or any part thereof, their heirs, successors, successors-in-title, and assigns and shall inure to the benefit of each owner thereof.
4. Declarant, for itself and its successors and assigns, specifically reserves unto itself the right and privilege, prior to the recording of any plat, plans or Supplemental declaration dealing with specific portions of the Development as described in Exhibit A, to exclude any real estate as shown from, or to include Additional Land that will be subject to, the terms and provisions hereof and purporting to accomplish such exclusion from or addition of real estate with respect to these Restrictions.
5. Declarant intends to record by document or plat recordation the following easements and when so recorded, each shall encumber and/or benefit the Property.
a. Platted Easements. Easements as shown and defined on the Final Plat of Essex Park, Phase I, as per plat thereof, recorded in plat file 39-E-4, as Instrument No. 2001-003147, in the office of the Porter County Recorder, and as may be recorded for future phases of Essex Park which affects the property.
b. Utility Easement. A utility easement dated November 21, 2000, and recorded on November 21, 2000, as Instrument No. 2000-028954, in the office of the Porter County Recorder.
c. Storm Detention Easement. A storm detention easement dated November 21, 2000, and recorded on November 21, 2000, as Instrument No. 2000-028955, in the office of the Porter County Recorder.
6. Land Use Agreement with Porter County. On April 18, 2000, the Developer and the County of Porter entered into a Land Use Agreement which confers certain rights, duties and restrictions on the Property, and which shall become the responsibility of the Association and residents of Essex Park. The Agreement was recorded with the Porter County Recorder on November 21, 2000, as Instrument No. 2000-029671.
7. For so long as Declarant is the Owner of any Property in the Development, Declarant, for itself and its successor and assigns, specifically reserves unto itself the right and privilege to convey or contract to convey at a future time, any portion of the Common Area to the City of Valparaiso, or to any public agency or to any authority as deemed necessary by the City of Valparaiso, or public agency or authority, for any lawful purpose as determined by the Declarant.
1.1 Additional Land. Additional land shall mean additional real property which is subject to Declarant’s reserved unilateral right of annexation subject to this Declaration as provided in Article VII.
1.2 Association. Association shall mean and refer to the Essex Park Property Owners Association, Inc. or an organization of similar name, formed or to be formed, as an Indiana not-for-profit mutual benefit corporation, its successors and assigns.
1.3 By-Laws. Bylaws shall refer to the By-laws of the Association, as the same may exist and be in effect from time to time.1.4 Common Areas. Common areas shall mean all parcels and tracts of land which have not been designated by numbering as residential building lots in the recorded plat(s) including open space, landscape parcels, walking paths, public street cul-de-sac circular planting area, public street entryway median planting strips and all other real and personal property now or hereafter owned by or subject to an easement in favor of the Association for the common use and enjoyment of the Owners as set forth in Article II, in 2.1
1.5 Common Expense. Common Expenses shall mean and include the actual and estimated expenses of operating the Association, including any reasonable reserves, all as may be found to be necessary and appropriate by the Board pursuant to this Declaration, the Articles of Incorporation, and the By-Laws of the Association. Common Expenses shall include, without limitation, the actual and estimated cost to the association for the maintenance, management, operation, repair, improvement and replacement of Common Area, as well as any other costs or expense incurred by the Association for the benefit of the Common Areas and the Owners.
1.6 Declarant. Declarant shall mean Essex Park, LLC. Its successors and assigns.
1.7 Developer. Developer shall also mean Essex Park, LLC, its successors and assigns
1.8 Eligible Votes. Eligible Votes shall mean those votes available to be cast on the issue at hand. A vote which is for any reason suspended is not available to be cast.
1.9 Lot. Lot shall mean any numbered parcel of residential real estate described by the Plat of the Development and as supplemented or amended from time to time, all of which is recorded in the Office of the Recorder of Porter County, Indiana.
1.10 Majority. Majority means those eligible Votes, Owners, or other groups as the context may indicate totaling more than fifty (50%) percent of the total eligible number.
1.11 Member. Member shall mean and refer to a person or entity entitled to membership in the Association.1.12 Owner. Owner shall mean and refer to the record owner, whether one or more persons or entities, of any Lot which is part of the Development, but excluding any party holding the fee simple title merely as security for the performance of an obligation. Owner may include Declarant. Only one vote per Lot shall be available despite multiple ownership of such Lot.
1.13 Plats and Plans. Plat, Plats, or Plans shall mean any of survey of all or any portion of the Development (including the annexation of additional Property as described in Article VII herein) making reference to Essex Park which have been or hereafter may be recorded in the Office of the Recorder of Porter County, Indiana, as the same may be amended or supplemented by replats or otherwise.
1.14 Supplemental Declaration. Supplemental Declaration shall mean an amendment to this Declaration which adds additional property to that covered by this Declaration or otherwise imposes additional restrictions on all or any portion of the Development.
Every numbered lot in the Development, unless it is otherwise designated by Developer, is a residential Lot and shall be used exclusively for single family residential purposes. No structure shall be erected, placed or permitted to remain upon any of said Lots except a single family dwelling house. No Lot shall be resubdivided. All parcels and tracts of land located within the Development which have not been designated by numbering as residential building lots in the recorded plats shall be Common Area and shall be used in a manner consistent with the zoning and use designated by the plat, and this Declaration. 2.1 Owners Right of Enjoyment. Every Owner shall have a right by license of ingress and egress, use and enjoyment in and to some of the Common Area which right and license shall be appurtenant to and shall pass with the title to every Lot, subject to the following provisions:
(i) the right of the Association to charge reasonable admission and other fees for the use of any facility now or hereafter situated or constructed upon the Common Area and to impose reasonable limits on the number of guest who may use the facilities.
(ii) the right of the Association to suspend an Owner’s voting rights, both as a member and as an owner, and to suspend the right to use any of the Common Areas and facilities for any period during which any assessment of the Association against that Owner’s Lot remains unpaid, and for any infraction by an Owner of the Association’s rules and regulations for the duration of the infraction and for an additional period not exceed thirty (30) days.
(iii) the right of Declarant, for so long as Declarant is the Owner of any property in the Development, to dedicate or transfer all or any portion of the Common Area to the City of Valparaiso, to any public agency, authority, or utility for such purposes.
2.2 Declarant’s Reserved Easements. Notwithstanding any provisions contained in the Declaration to the contrary, Declarant hereby expressly reserves unto itself and its successors and assigns a nonexclusive, perpetual right, privilege, and easement with respect to any property in the Development, for the benefit of Declarant, its successors, and assigns over, under, in and/or on the Development, without obligation and without charge to Declarant, for the purposes of construction, installation, relocation, development, sale, maintenance, repair, replacement, use, and enjoyment and/or otherwise dealing with the Development and any other property now owned or which may in the future by owned by Declarant.
2.3 Owner’s Right to Ingress and Egress. Each owner shall have the right to pedestrian ingress and egress over and across the Common Area necessary for access to his/her lot and such other easements that are designated on the Plat for access to such Common Area and such rights shall be appurtenant with the title to each Lot.
2.4 Use of Lots. Except as may be otherwise expressly provide in this Declaration, each Lot shall be used for residential purposes only as a residence for a single family related by blood, adoption, or marriage; no trade or business of any kind may be conducted on any Lot. Lease or rental of a Lot or any building thereof for residential purpose shall not be considered to be a violation of this covenant, so long as the lease is in compliance with reasonable rules and regulations as the Board of Directors of the Association may promulgate, or on the absence of such rules and regulations, with the prior written approval of said Board.
2.5 Use of Common Areas and Lots. No planting or gardening shall be done, and no fences, hedges, walls or any other structure or planting shall be erected on or maintained upon the Common Area or upon any Lot, except in accordance with the initial construction of the improvements located thereon by the Declarant or as approved by the Association’s Board of Directors or their designated representatives. No antennas may be erected upon the Common Area, except the Association may erect a master antenna serving the members. Except for the right of ingress and egress, the Owners of Lots may use property outside their respective Lots only in accordance with reasonable regulations as may be adopted by the Association’s Board of Directors or as in expressly provided herein. It is expressly acknowledged and agreed by all parties concerned that this section is for the mutual benefit of all Owners and is necessary for the protection of all Owners.
2.6 Rules and Regulations. The Association and the Board of Directors may establish reasonable rules and regulations concerning the use of the Common Area, facilities located thereon, and individual Lots. Copies of such regulations and amendments thereto shall be furnished by the Association to all Owners prior to the rules effective date. Such regulations shall be binding upon the Owners, their families, tenants, guests, invitees, and agents until and unless such regulation, rule, or requirement shall be specifically overruled, cancelled, or modified by the Board or the Association in a regular or special meeting by the vote of Owners holding a two-thirds (2/3) majority of the total votes in the Development present or by proxy with the written approval of the Declarant for so long as Declarant shall control the control the Development as described in section 3.5 herein. The Board shall have the authority to make reasonable variances or exceptions to the rules as they apply to specific Lots as long as such variances do not materially alter the character of the Development or create an unsafe condition. The Board may impose monetary fines and other sanctions and monetary fines may be collected by lien and foreclosure, as provided in article IX. In addition, the Association, through the Board, may, by contract or other agreement, enforce city ordinances or permit City of Valparaiso, Indiana to enforce ordinances affecting the Development for benefit of the Association and its members.
2.7 Exterior Lighting. The Developer shall adopt and designate a standard exterior light fixture for all Lots in the Development and may designate a standard location for such exterior light fixtures. Each Owner of a Lot in the Development shall cause such standard exterior light fixture to be installed and maintained, at such Owner’s expense.
2.8 Storage and Parking of Vehicles. There shall be no outside storage or parking upon any Lot, street, or the Common Area of any commercial vehicle, truck, van, tractor, mobile home or trailer (either with or without wheels), camper, camper trailer, travel trailer, recreational vehicle, snowmobile, motorcycle, boat or other watercraft, boat trailer, or any other such transportation device of any kind, except within the parking spaces in the Owner’s garage and for visitors and providers of services temporarily in driveway or street and in accordance with rules and regulations designated and promulgated by the Board. All vehicles parked on Lots shall be operational and not in a state of disrepair. The aforementioned parking and storage limitations do not apply to usual and customary private automobiles, station wagons, passenger vans and similar vehicles all currently registered and licensed for daily use.
2.9 Pets. No animals, livestock, or poultry of any kind shall be raised, bred, or kept on the Development, except that no more than a total of two (2) animals (dogs, cats, or other normal household pets) may be kept in residences subject to the rules adopted by the Association through its Board of Directors, provided that such pets are not kept, bred, or maintained for any commercial purposes. The Board shall have absolute power to prohibit a pet from being kept on any Lot in the Development, including inside residences constructed thereon, in the event that such pet poses a danger or nuisance to Owners. The Board shall also have the power to allow for reasonable exceptions to this paragraph 2.09 as long as the exception does not create an unsafe condition in the Development.
2.10 Model Homes. No Owner of any Lot in the Development other than the Declarant or persons having written permission of the Declarant shall build, or permit the building upon any such Lot of any dwelling that is to be used as a model home or exhibit house.
2.11 Antennas and Satellite Dishes. No exposed radio or TV antennas shall be allowed on any residence on any Lot which is visible from outside such residence. Any satellite dish installed on any Lot shall be equal or less than 24” in diameter and shall be placed in an inconspicuous location on the Lot.
2.12 Fences and Walls. No line fence or wall shall be built to a greater height than five feet (5’) from the grade adjacent to the fence or wall at all points, nor shall any wall or fence greater than three feet (3’) in height be built between the front building line and the front lot line. All fence or wall materials shall be in conformity and harmony with the residence on that Lot. In no case shall “chain-link” or “farm field” type fence be permitted. Fencing of entire lot perimeters is prohibited except a “living” fence is permitted consisting of trees, evergreens, or hedges and bushes.
2.13 Swimming Pools. Any in-ground and above ground pools shall be continuously fenced, surrounding said pool with a nonclimbable fence at least four feet (4’) high. Any above ground pool shall have decking along the entire perimeter of the pool which shall extend out from the pool a minimum of four feet (4’).
2.14 Board Variances. The Association Board may, in its discretion, make reasonable variances to the rules and regulations set fourth in this Section II, as long as each variance does not materially conflict with the character of the development or create an unsafe condition.
MEMBERSHIP AND VOTING RIGHTS
3.1 MEMBERSHIP. Every Owner of a Lot shall be a member of the Association. Membership shall be appurtenant to and may not be separated from ownership of any Lot.
3.2 Classes of Membership and Voting Rights. The Association shall have one class of voting membership which shall be comprised of all owners who shall be entitled to one vote for each Lot owned. When more than one person holds an interest in any Lot, all such persons shall be members. The vote for such Lot shall be exercised as such co-owners among themselves determine evidenced by a certificate signed by all the Owners filed with the Association. Such signed certificate shall also be conclusive with respect to voting rights of an Owner in instances where such Owner’s voting is referred to in these Restrictions. In no such event shall more than one vote be cast with respect to any Lot either with respect to Association membership or Lot ownership.
3.3 Board of Directors. The members shall elect a Board of Directors of the Association as prescribed by the Association’s By-Laws. The board of Directors shall manage the affairs of the Association. The initial Board of Directors shall be appointed by Declarant and shall manage the affairs of the Association until the Developer transfers control of the association to the Owners as set forth herein in paragraph 3.5.
3.4 Responsibilities of the Association. The Association is hereby authorized to act and shall act on behalf of, and in the name, place and stead of, the individual Owners in all matters pertaining to the maintenance, repair, and replacement of Common Areas, the determination of Common Expenses, the collection of annual and special Assessments, and the granting of any approvals whenever and to the extent called for by this Declaration for the common benefit of all such Owners. The Association shall also have the right, but not the obligation, to act on behalf of any Owner or Owners in seeking enforcement of the terms, covenants, conditions and restrictions contained in this Declaration. Neither the Association nor its officers or authorized agents shall have the liability whatsoever to any Owner for any action taken under color of authority of this Declaration or for any failure to take any action called for by this Declaration, unless such act or failure to act is in the nature of a willful or reckless disregard of the rights of the Owners or in the nature of the willful, intentional, fraudulent, or reckless misconduct. The Association may procure and maintain casualty insurance for the Common Areas, liability insurance (including directors and officers insurance) and such other insurance as it deems necessary or advisable. The Association may contract for such services as management, snow removal, security control, trash removal, and such other services as the Association deems necessary or advisable.
3.5 Control and Transfer of Control of Association. During the development and construction stages of the Development and for so much of the selling period as described hereinafter, the Association shall be operated and controlled by the Declarant. The Board of Directors of the Association shall, during such period, consist of persons appointed by the Declararnt, and each owner shall give and shall be deemed to have given to Declarant an irrevocable proxy to vote on any and all matters on which the Owner is entitled to vote under this Declaration, any Supplemental Declaration, or under the Articles of Incorporation or the By-Laws of the Association. The control of the Association shall be transferred to the Owners (which includes Declarant with respect to each unsold Lot) one hundred twenty (120) days after the date on which a total of seventy-five percent (75%) of the Lots platted, to be platted or to be annexed then ascertained in the Development have been conveyed to Owners. The proxy granted to Declararnt shall be deemed to be coupled with an interest and is irrevocable. Such proxy shall terminate as of the date of transfer of control of the Association as set forth above.
MAINTENANCE COMMON AREA 4.1 Maintenance. The Association shall maintain and keep in good repair the Common Area. The maintenance of the Common Area shall be deemed to include, but not limited to, maintenance, repair and replacement (subject to later reimbursement from the insurance and casualty loss provisions contained herein), at the Association’s sole cost and expense as Common Expense, of all the following located on the Common Areas: trees, fences, shrubs, grass, signs, building, or structures, improvements, Common Area access and parking spaces, if any, walks, pedestrians bridges, any common lighting and watering systems and other improvements situated upon the Common Area. In addition, the Association shall maintain, replace and keep in good repair the planting, grass and landscape areas to include electrical and watering systems thereon located in and upon the public street cul-de-sac circular areas and the entry way median strips and all parcels designated on the plat as common Areas. In addition, the Association shall pay for any utility consumption costs as natural gas, electricity and water which serve the Common Area.
In the event that the Board of Directors of the Association determines that (i) any Owner has failed or refused to discharge properly his or her obligations with regard to the construction, maintenance, repair, or replacement of items for which he or she is responsible hereunder or otherwise; or (ii) that the need for maintenance, repair, or replacement, which is the responsibility of the Association hereunder, is caused through the willful or negligent act of an Owner, his or her family, guest, lessees, and is not covered or paid for by insurance, in whole or in part, then, in that event, the Association, except in the event of any emergency situation, shall give the owner written notice of the Association’s intent to provide such necessary maintenance, repair, or replacement, at the Owner’s sole costs and expense; the notice shall set forth with reasonable particularity the maintenance, repairs, or replacement required and shall advise the Owner to complete the same within three (3) days from the date of such notice; provided, however, that if the same is not capable of completion within the three (3) day-period, such notice shall advise the Owner to immediately commence such work which shall be completed within a reasonably specific time. If any Owner does not comply with the provisions hereof, the Association may provide any such maintenance, repair, or replacement at Owner’s sole cost and expense, and the cost shall be added to and become a part of the assessment to which such Owner is subject and shall become a lien against the Lot as provided in Article IX elsewhere herein.
INSURANCE 5.1 Insurance. The Association’s Board of Directors, or its duly authorized agent, shall have the authority to and shall obtain insurance for all insurable improvements on the Common Area against loss or damage by fire or other hazards, including extended coverage, vandalism, and malicious mischief. This insurance shall be in an amount sufficient to cover the full replacement cost of any repair or reconstruction in the event of damage or destruction from any such hazard. The board shall also obtain public liability policy covering the Common Area, the Association, and its members for all damage or injury caused by the negligence of the Association of any of its members or agents. The public liability insurance shall be in an amount and form determined by the Board.