UNOFFICIAL COPY OF COVENANTS

 Version: 11/09/1999 3:01 PM ET

RESTRICTIONS AND PROTECTIVE COVENANTS

FOR KOEHLER PLACE SECTION TWO SUBDIVISION

The undersigned, Roger C. Harbison & Rochelle M. Harbison, doing business as Harbison Development, Inc. being the owners and developers of the property known as Koehler Place Two Subdivision, in New Albany, Floyd County, Indiana, as shown in Plat Book No. 1144, Page 1 in the office of the recorder of Floyd County, Indiana, do hereby impose the following restrictions and protective covenants upon the mutual benefit of all persons, firms and corporations who may now or hereafter have any vested interest, legal or equitable, in any lot within such subdivision.

1. Primary Use Restrictions

No lot shall be used except for private single family residential purposes. No structure shall be erected, placed or altered or permitted to remain on any lot except one single family dwelling designed for the occupancy of one family (including and domestic servants living on the premises), not to exceed two (2) stories in height and containing a private garage for the sole use of the owner and occupants of the lots.

2. Approval of Construction and Landscape Plans.

No structure may be erected, placed or altered on any lot until the construction plans and building specifications and a plan showing the (a) location of improvements on the lot; (b) the building elevation (including rear, front and side elevations); (c)the type of exterior material (including delivery of a sample thereof); (d) the location and size or the driveway (which shall be asphalt or concrete); and (e) the grade elevation of the foundation; shall have been approved in writing by the Developer.

In addition to the plans referred to in the previous paragraph, a landscape plan shall be submitted to the Developer for its approval in writing, which plan shall show trees, shrubs and other plantings.

References to “Developer” in this paragraph shall include any person, firm, corporation or association to whom Developer may assign the right of approval. References to "structure" in this paragraph shall include any building (including a garage, fence or wall).

“Developer” is hereby granted the right, but is not obligated to approve or reject all plans and specifications for the erection and /or alteration of improvements on all lots in Koehler Place Section Two Subdivision.

3. Building Materials; Roof; Builder.

1. The exterior building material of all structures shall extend to a minimum of nine (9) inches above ground level and shall be either brick, stone, stucco, vinyl siding, wood siding or combination of the same. However, Developer recognizes that the appearance of other exterior building materials may be attractive and innovative, and reserves the right to approve in writing the use of other exterior building materials.
2. The roof pitch of any residential structure shall not be less than six (6) inches vertical for every twelve (12) inches horizontal.
3. The general contractor constructing the residential structure on any lot shall have been in the construction business for a period of one year and must have supervised the construction of or built a minimum of six (6) homes. Developer makes this requirement to maintain high quality of construction within the subdivision, and reserves the right to waive these standards of experience.

4. Setbacks.

No structures shall be located on any lot nearer to the front lot line or the side street line than the minimum building setback lines shown on the recorded plat. Developer may vary the established building lines, in their sole discretion, where not in conflict with applicable zoning regulations during the development of the subdivision. For purposes of this section, the development of the subdivision shall be from the date that these restrictions and protective covenants are executed by the Developers to the date of the sale of the last remaining lot in KOEHLER PLACE SECTION TWO SUBDIVISION, to any person, firm or corporation other than the Developers. Each house must be placed within eight (8) Ft. of the minimum building set back lines shown on the recorded plat.

5. Minimum Floor Areas.

1. The ground floor area of a one story house shall be a minimum of 1250 square feet with, a two car attached garage. The ground floor area of a one story house shall be a minimum of 1450 square feet, with a two (2) car garage in the basement in lieu of an attached garage.
2. The ground floor area of a one and one-half story or two story house shall be a minimum of 800 square feet, with the total floor area a minimum of 1400 square feet, with an attached two (2) car garage. The ground floor area of a one and one-half story or two story shall be a minimum or 1000 square feet with the total floor area a minimum of 1600 square feet, with a two (2) car garage in the basement in lieu of an attached two (2) garage.
3. The required increased floor area would not apply to a home that had an attached two (2) garage in addition to a garage in the basement.
4. Finished basement areas, garages and open porches shall not be included in computing total floor area of any residential structures.

6. Style of Home.

1. All houses to be constructed within the subdivision shall be one story ranches or conventional two story houses unless otherwise approved by the Developer in accordance with Section 2 hereof.
2. No underground homes or log cabins will be allowed.
3. No mobile homes or manufactured homes will be allowed to be placed on any lot.

7. Completion Time Requirements for Construction.

1. Once under construction, all residences shall be completed within twelve (12) months.
2. After the construction of a residence, the lot owner shall grade and seed or sod the lot within three (3) months.
3. After the construction of a residence, the lot owner shall furnish landscaping and have the driveway paved, (concrete or asphalt) within three (3) months.
4. Upon an owners failure to comply with the provisions of this paragraph 7, Developer or any person or association to whom it may assign the right, may take action as necessary to comply therewith, and the owner shall immediately upon demand, reimburse Developer or other performing party for all expenses incurred in so doing.

8. Garages, Swimming Pools and Driveways.

1. All lots shall have at least a two (2) car attached or a two (2) car basement garage, but not more than a three (3) car garage unless otherwise approved in writing by Developer or any person, firm, corporation or association to whom it may assign such right.
2. Garages, as separate structures, are subject to prior plan approval under Section 2 hereof.
3. No carports shall be constructed on any lot, unless it is in addition to a private garage.
4. Any swimming pools must be in ground and shall be to the rear of the lot and screened from the street and have appropriate fencing as required by local and/or state laws.
5. Driveways shall be double width, a minimum of sixteen (16) feet wide at its narrowest point or provide a turnaround or parking area for a minimum of two cars. The combination of driveway turn around or parking area provided shall accommodate off street parking for a minimum of four (4) cars.
6. Prior to the start of construction on any dwelling the contractor will be required to install and gravel the driveway so that it can be used during construction.

9. Fences, Walls, Solar Units, Clotheslines, Satellite Dishes, and Mailboxes.

1. No fence or wall of any nature may be extended toward the front or side street side property line beyond the front or side wall of (he residences. No fence taller than six (6) feet in height will be permitted.
2. No tennis court fence shall be erected on any lot in the subdivision unless the fencing is coated with green vinyl.
3. No satellite dish/special radio-telephone transmitting antenna may be constructed or placed on any lot without prior written approval of the Developer or his authorized representative. Principal Developer concerns are with regard to location, aesthetic and effective measures to screen such equipment from public view and safety. The maximum size satellite dish allowed shall be 30" diameter.
4. No outside clotheslines shall be erected or placed on any lot.
5. No solar unit may be visible from the street of said subdivision.
6. No mailboxes or paper holders shall be placed on any lot unless its design and placement are approved in writing by the developer or their assigns. All mailboxes and posts to be the same style, to be determined by the developer.

10. Gardens.

1. Vegetable gardens for private use shall be permitted only in the rear lot of a swelling and in no event shall be greater than five hundred (500) square feet.

11. Underground Utility Service and Fuel Tanks.

1. Utility service lines serving each lot shall be underground and shall be located only in those areas reserved on the plat for utility easements. The utility easements shown on the plat shall be maintained and preserved in their present condition and no encroachment therein, and no change in the grade or elevation thereof, shall be made by any person, firm or corporation owning any legal or equitable interest in any lot in the subdivision without the expressed consent in writing of the utility service companies providing utility service to the subdivision.
2. All tanks used for any purpose, be it heating of a single-family dwelling or in ground pools, must be buried.
3. Koehler Place Section Two Subdivision will be served by the City of New Albany Sanitary Sewer System. Each home in Koehler Place Section Two Subdivision will be required to connect to the City of New Albany Sanitary Sewer System and pay all associated fees required by the City of New Albany.
4. No individual water system shall be permitted on any lot unless such system is located, constructed, and equipped in accordance with the requirements, standards, and recommendations of local public health officials.

12. Drainage.

Drainage of each lot shall conform to the general drainage plans or the Developer for the subdivision.

13. Easements for Utilities, Sewers and Drainage.

Any property in this subdivision shall be conveyed subject to the easements shown or noted on the recorded plat.

1. The right of ingress and egress over all lots to and from the easements for construction, operation, and maintenance of said facilities over and under said land which is subject to said easements.
2. The right to cut down or trim any trees within the easement.
3. The right of any utility company or agency using said easement to remove permanent obstacles within the easement.

14. Nuisances.

No noxious or offensive activities shall be conducted on any lot, nor shall anything be done which may be or become an annoyance or nuisance to the neighborhood.

15. Use of Other Structures and Vehicles.

1. No structure of a temporary character shall be permitted on any lot except temporary tool sheds or field offices used by a builder or Developers, which shall be removed when construction or development is completed.
2. No outbuilding, trailer, basement, tent, shack, garage, barn or structure other than the main residence erected on a lot shall at any time be used as a residence, temporarily or permanently.
3. No trailer, truck, motorcycle, commercial vehicle, camper trailer, camping vehicle or boat shall be parked or kept on any lot any time unless housed in a garage or basement for a period in excess of forty eight (48) hours. No inoperable or junk automobiles shall be habitually or repeatedly parked or kept on any lot (except in the garage) or on any street. No trailer, boat, truck or other vehicle, except automobile, shall be parked on any street in the subdivision for a period in excess of twenty-four (24) hours.
4. No automobile shall be continuously or habitually parked on any street or public right-of-way.

16. Business: Home Occupations.

No trade or business of any kind (and no practice of medicine, dentistry, chiropody, osteopathy and like endeavors) shall be conducted on any lot, nor shall anything be done thereon which may become an annoyance or nuisance to the neighborhood. Notwithstanding the provisions hereof or of paragraph l, a new house may be used by a builder thereof as a model home for display or the builder's own office, provided said use terminates within forty-eight (48) months from completion of the house or upon such additional period of time as may be expressly agreed to in writing by Developer or any person, firm, corporation or association to whom it may assign such right.

17. Signs.

No sign for advertising or any other purpose shall be displayed on any lot or on a building or a structure on any lot, except one sign for advertising the sale or rent thereof, which shall not be greater in area than nine (9) square feet; provided however, Developer (1) shall have the right to erect larger signs when advertising the subdivision, (2) to place signs on lot designating the lot number of the lots, and (3) following the sale of a lot, to place signs on such lot indicating the name of the purchaser of the lot. This restriction shall not prohibit placement of occupant name signs and lot numbers as allowed by applicable zoning regulation.

18. Duty to Maintain Lot.

Before the date of construction of a single-family residence is started, it shall be the duty of each lot owner to keep and maintain the grass at a level not to exceed twelve (12) inches in height. From and after the date construction of a single-family residence is started, it shall be the duty of each lot owner to keep and maintain the grass on the lot properly cut, to keep the lot free and clear from all weeds and trash, (other than normal building materials used during construction) and to keep it otherwise neat and attractive in appearance. Should any owner fail to do so, then Developer may take such action as it deems appropriate, including mowing, in order to make the lot neat and attractive, and the owner shall, immediately upon demand, reimburse Developer for all costs incurred in taking such action.

19. Disposal of Trash.

No lot shall be used or maintained as a dumping ground for rubbish, trash, or garbage. Trash or garbage or other waste shall not be kept except in sanitary containers.

20. Erosion Control.

Prior to the construction of single-family residence on each individual lot , it shall be the responsibility of the Developer, or his assigns, to maintain erosion control on each lot to prevent erosion slide into any road or curb improvements. After the transfer of ownership from Developer to resident or builder, it shall be the duty of each individual lot owner to prevent any erosion of earth onto said improvements. Should any owner fail to do so, then Developer (or any person, finn, corporation, or association to which it may assign the right) may take such actions as it deems appropriate, and immediately, upon demand, reimburse Developer or other performing parties for all expenses incurred in so doing.

21. Animals.

No animals, including reptiles, livestock or poultry or any kind shall be raised, bred or kept on any lot, except that dogs, cats or other household pets in this geographic area may be kept provided they are not kept, bred or maintained for any commercial or breeding purposes. All household pets, including dogs and cats, shall at all times be confined to the lot occupied by the owner of such pets.

22. Conservative Easement.

Lots 95-97 inclusive are subject to a drainage easement at the rear of the lot. This portion of their lots shall be subject to a conservative easement that is meant to be perpetual and is not subject to change as per paragraph 23 of this document. The area affected by the above mentioned easement is also sut2iect to the following conditions:

1. Buildings. There shall be no construction or placing of buildings, or other structures in this area.
2. Topography. There shall be no dredging or filling. There shall be no excavating, or removal of any topsoil, or other materials. There shall be no change in the topography of the land in any manner.
3. Dumping and Storage Tanks. There shall be no dumping of trash, ashes, garbage or other unsightly or offensive material, especially including hazardous waste or toxic waste.
4. Vegetation. Except in conjunction with authorized activities, there shall be no removal, destruction, cutting, or alteration of any vegetation or change in the natural habitat in any manner without approval of the local forestry or other appropriate authorities.

23. Restrictions Run With Land.

Unless altered or amended under the provisions of this paragraph, these covenants and restrictions are to run with the land and shall be binding on all parties claiming under them for a period of Thirty (30) years from the date this document is recorded, after which time they shall be extended automatically for successive periods of ten years, unless an instrument signed by a majority of the then owners of the lots has been recorded, agreeing to change said covenants in whole or in part. Failure of any owner to demand or insist upon observance of any of these restrictions, or to proceed for restraint of violation shall not be deemed a waiver of the violation, or the right to seek enforcement of these restrictions.

24. Sidewalks

A four (4) foot concrete sidewalk, four (4) inches thick shall be constructed by the builder within (3) months after completion of the residence. Said sidewalk is to be placed five (5) foot back of curb, except for lots 46, 47, 72, 73, and 98 which are to be placed as directed by Developer.

25. Plan of Development of Koehler Place

Koehler Place Section 2 is part of a planned development of two(2) or more sections. Section 2 includes 53 lots and along with the previous and future sections are subject to this declaration. The common areas of all sections are to be mutually shared by the Koehler Place Homeowners Association. Each lot owner in all sections share the use of the common areas; and such lot owners shall be assessed for common expenses in the same manner as all the lot owners of the Subdivision.

26. Homeowners Association

1. Membership and voting rights
2. Every owner of a lot which is subject to assessment shall be a member of the Association. Membership shall be appurtenant to and may not be separated from ownership of any lot which is subject to assessment.
3. The Association shall have two classes of voting membership: Class A. and Class B.
   Class A. Class A members shall be all owners with the exception of the developer and shall be entitled to one vote for each lot owned. When more than one person owns an interest in any lot, all such persons shall be members. The vote for such lots shall be exercised as they among themselves agree, but in no event shall such vote be split into fractional votes nor shall more than one vote be cast with respect for any lot. Each vote cast for a lot shall be presumptively valid. But if such vote is questioned by any member holding any interest in such lot, if all such members are not in agreement, the vote of such lot which is questioned shall not be counted.
   Class B. Class B members shall be the Developer and the Class B member shall be entitled to three (3) votes for each lot owned. A Class B membership shall cease and be converted to Class A membership upon the happening of either of the following events, whichever occurs first: a. The total votes outstanding in the Class A membership equals the total votes outstanding in the Class B membership; or b. The 31 day of December, 2003.

B. Creation of the lien and personal obligations of the assessments.

1. The owner of any lot within the Development by acceptance of a Deed to any such lot, whether or not it shall be expressed in such Deed, is deemed to covenant and agrees to pay to the association an annual assessment of charge which is initially in the sum of Seventy-five Dollars ($75.00) per lot beginning with the initial conveyance of the lot for the Developer, and due the following January 1, and thereafter due in a like manner on the following 1st day of January. The annual assessment, together with interest, cost, and reasonable attorneys fees, shall be charge on the land and shall be a continuing lien upon the property on which such assessment is made. Each assessment together with interest, cost, and reasonable attorney fees shall also be the personal obligation of the person who was the owner of such property at the time the assessments are due. The personal obligations for delinquent assessments shall not pass to his successors in title unless expressly assumed by them in the Deed to such lot.
2. The purpose of the assessments levied by the Association shall be exclusively to promote the recreation, health, safety, and welfare of the residents of the development and for the improvements and maintenance of the Common Areas, any taxes or assessments imposed upon the common grounds and Koehler Place Homeowners Associations insurance premiums.
3. The Homeowners Association, by vote of the majority of the members of said Association, may increase the annual assessment.
4. Effect of nonpayment of assessments: remedies of the Association: any assessments not paid within thirty (30) days after the due date shall bear interest from the due date at the rate of Fifteen Percent(15%) per annum. The Association may bring an action at law against the owner primarily to pay the same or foreclose the lien agaimst the property. No owner may waive or otherwise escape liability for the assessment provided for herein by non-use of the Common area or abandonment of such lot.
5. Subordination of the liens and mortgages. The liens of the assessment provided for herein shall be subordinated to the lien of any first mortgage in existence at the time that the assessment becomes a lien. Sale or transfer of any lot shall not affect the assessment lien. However, the sale or transfer of any lot pursuant to any mortgage foreclosure or any proceedings in lieu thereof, shall extinguish the lien of such assessments as to payment which became due prior to such sale or transfer. No sale or transfer shall relieve such lot from liability for the assessment thereafter becoming due or from the lien thereof.
6. Exempt property. All properties dedicated to an accepted by a local public authority, the Common Area, and all properties owned by the developer shall be exempt from the assessment created herein, except no land or improvements devoted to dwelling use shall be exempt from the said assessments.
7. Notice and quorum for any action. Written notice of any meetings called for the purpose of taking any action shall be sent to all members not less than thirty (30) nor more than sixty (60) days in advance of the meeting. At the first meeting called, the presence of members or of proxies entitled to case Sixty Percent (60%) of all votes of each class of membership shall constitute a quorum. If the required quorum is not present another meeting may be called subject to the same notice requirement. And a required quorum at the subsequent meeting shall one-half(1/2) for the required quorum at the preceding meeting. No subsequent meeting shall be held more than (60) days following the preceding meeting. A majority vote of the quorum shall be required to take any action.
8. Directors and incorporation: The Homeowners Association is an unincorporated entity and has not been incorporated. The Homeowners Association pursuant to the regulations as set forth herein may take by proper vote the action to incorporate the Homeowners Association or they may decide to stay as an unincorporated entity. They may also take the action of appointing a Board of Director to act on behalf of the Association, and to set forth by-laws to guide the Association and/or its Director.
9. Owners easements and rights of enjoyment: Every owner shall have the right and easement of enjoyment in and to the Conunon Area which right and easement shall be appurtenant to and shall pass with the title to every lot subject to the following provision:
10. The right of the Association to dedicate or transfer any or all party of the Common Area to any public agency, authority or utility for such purpose and subject to such conditions as may be agreed to by the members. No such dedication or transfer shall be effective unless an instrument of agreeing to such dedication or transfer is signed by two-thirds (%) of each class of members has been recorded.

27. Invalidation.

Invalidation of any one of these covenants by judgement or court order shall in no way affect any of the other provisions which shall remain in full force and effect.

28. Obligation to Construct or Reconvey. 

Each lot owner shall within twelve (12) months after the date of conveyance of a lot without a dwelling thereon, commence in good faith the construction of a single-family dwelling approved according to paragraph two (2), upon each lot conveyed; provided, that should said construction not commence within the specified period of time, if the lot owner has not complied with all of the restrictions herein or from this time forth does not comply with such restrictions then the Developer may elect to repurchase any and all lots on which construction has not commenced for 90% of the agreed purchase price of said lot or lots hereunder, in which event said lot or lots to (he Developer by warranty deed. Failure or the Developer to elect to repurchase any lot on which construction has not commenced under the terms of this provision shall not be deemed a waiver of the Developer's right to elect to repurchase in the future any or all of such lots on which construction has not commenced.

29. Reservation by Developer to Alter or Amend Restrictions and Protective Covenants.

The Developers, their successors and assigns, reserve the right to alter or amend these restrictions and protective covenants during the development period of the subdivision. For purposes of this section, the development period shall be from the date that the restrictions and protective covenants are executed by the Developers to the date of the recording of a deed to any lot in Koehler Place Section Two Subdivision to any person, firm or corporation other than the Developers.

IN WITNESS WHEREOF, Roger C. Harbison & Rochelle M. Harbison have subscribed their names this 23 Day of October, 1998.