HomeMy WebLinkAboutDeclaration Covenants/Restrict
T ABLE OF CONTENTS
1. Definitions 2
2. Declaration 6
3. Description of Section 1 7
4. Description of Hayden Run 7
5. Lot Boundaries and Access 7
6. Common Area 7
7. Landscape Maintenance Access Easement 7
8. Ownership of Common Area 8
9. Delegation of Use of the Common Area 9
10. Easements in Common Area 9
11. Corporation; Membership; Voting; Functions 10
(a) Membership in Corporation 10
(b) V oting Rights 10
(c) Functions 11
12. Board of Directors. 11
(a) Management 11
(b) Initial Board of Directors 11
(c) Additional Qualifications 12
(d) Term of Office and Vacancy 13
(e) Removal of Directors. 14
(f) Duties of the Board of Directors 14
(g) Powers of the Board of Directors. 15
(h) Limitation on Board Action 16
(i) Compensation 17
U) Non-Liability of Directors 17
(k) Additional Indemnity of Directors 17
(1) Bond 18
13. Initial Management 19
14. Real Estate Taxes 20
15. Utilities 20
16. Maintenance, Repairs and Replacements 20
17. Architectural Control 22
(a) The Architectural Review Board 22
(b) Purposes 23
(c) Conditions 23
(d) Procedures 23
18. Assessments 24
(a) Annual Accounting 24
(b) Proposed Annual Budget 24
(c) Regular Assessments. 26
(d) Special Assessments 29
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(c) Resolution 48
(d) Meeting 49
(e) Adoption 49
(f) Special Amendments 49
(g) Recording 50
(h) Amendments by Declarant Only 50
(i) HUD Approval 51
25. Acceptance and Ratification 52
26. Negligence 52
27. Costs and Attorneys' Fees 53
28. Waiver 53
29. Severability Clause 53
30. Pronouns 53
31. Interpretation 53
32. The Plat 54
33. Annexation 54
34. Collector Road System 54
35. Future Construction of Recreational Facilities 54
Exhibit "A" Real Estate
Exhibit "B" Section One
Exhibit "C" Fence Requirements
IV
Corporation being more particularly described in Paragraph 11 of this Declaration.
"Declarant" shall mean and refer to Centex Homes, a Nevada general partnership,
and any successors and assigns of it whom 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 Tract pursuant to the
exercise of rights under, or foreclosure of, a mortgage executed by Declarant.
(i) "Dwelling Unit" means one of the living units located upon a Lot.
U) "Hayden Run" means the name by which the Real Estate, which is the
subject of this Declaration, shall be known.
(k) "Landscape Maintenance Access Easement" shall mean and refer to those
areas identified in any recorded Plat to be burdened by such easement. The
landscaping located within the Landscape Maintenance Access Easement shall be
maintained by the Corporation and the Corporation shall have an easement of ingress
and egress on and over the areas adjacent thereto for the purpose of this maintenance
obligation. The landscaping and other improvements planted or installed by the
Declarant and/or the Corporation within the Landscape Maintenance Access
Easement may not be removed by any Owner, nor may any Owner add any
landscaping or improvements to such easement area without the prior approval of the
Architectural Review Board.
(I) "Lot" means any plot of ground designated as such upon the recorded
Plat of Hayden Run and upon which one (1) Dwelling Unit is constructed, may be
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constructed or exists thereon. When Lot is used it shall be deemed to include the
Dwelling Unit, if any, located thereon.
(m) "Member" means a member of the Corporation.
(n) "Mortgagee" means the holder of a first mortgage lien on a Lot.
(0) "Owner" means a person, firm, corporation, partnership, association,
trust or other legal entity, or any combination thereof, who owns the fee simple title
to a Lot.
(p) "Plat" means the survey of Section 1 and the Lots, Common Areas, and
easements located thereon, prepared by Stoeppelwerth & Associates Engineering,
Inc., certified by Dennis D. Olmstead, a registered land surveyor, under date of
, 2002, recorded as Instrument No. dfDacd) 'l13S , in the Office of the
Recorder of Hamilton County, Indiana, and incorporated herein by reference and any
additional plat that may be filed, upon subjecting additional property to this
Declaration.
(q) "Sign Landscape Easement" means those areas identified In any
recorded Plat to be burdened by' such easement. Each such area shall contain
signage for the Hayden Run together with any landscaping associated with such
signage in such area and any entrance walls or improvements constructed in such
easement. The signage, entrance walls and improvements and landscaping located
within the easement shall be maintained by the Corporation and the Corporation
shall have an easement of ingress and egress on and over the areas adjacent thereto
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for the purpose of this maintenance obligation. The signage, entrance walls and
improvements and landscaping installed by the Declarant and/or the Corporation
within the Sign Landscape Easement may not be removed by any Owner, nor may
any Owner add any improvements to such area without the prior written approval of
the Architectural Review Board.
(r) "Tract" means the real estate described in Paragraph B of the recitals
above and such other portions of the Real Estate, and other property which have, as
of any given time, been subjected to this Declaration, either by this Declaration or a
Supplemental Declaration as herein provided.
(s) "Utility, Drainage and Sewer Easements" means the areas of ground on
the Plat marked Drainage, Utility and Sanitary Sewer Easement; Drainage, Utility
and Sewer Easement; and Drainage and Utility Easement. The Utility, Drainage and
Sewer Easements are hereby created and reserved for the use of all public utility
companies (not including transportation companies), governmental agencies and the
Corporation 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. The Utility,
Drainage and Sewer Easements are hereby created and reserved for (i) the use of
Declarant for access to and construction, maintenance, operation, repair and control
of any retention and detention ponds and improvements comprising and/or related to
the storm water drainage system, either by surface drainage or appropriate
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underground installations, for the Real Estate and adjoining property and (ii) the use
of the Corporation and the Hamilton County Drainage Board for access to and
maintenance, repair and replacement of such drainage system. The Owner of any
Lot subject to a Utility, Drainage and Sewer Easement shall be required to keep the
Easement area on his Lot free from obstructions so that the storm water drainage will
be unimpeded and will not be changed or altered without all necessary permits
(whether local, state or federal) and prior written approval of the Declarant. The
Utility, Drainage & Sewer Easements are hereby created and reserved for Declarant,
the Hamilton County Highway Department, the Hamilton County Drainage Board,
the Clay Township Regional Waste District, the City of Carmel and such other
municipal bodies, agencies and entities as necessary. The delineation of the Utility,
Drainage and Sewer Easement areas on the Plat shall not be deemed a limitation on
the rights of any entity for whose use any such easement is created and reserved to
go on any portion of any Lot subject to such easement temporarily to the extent
reasonably 'necessary for the exercise. of the rights granted to it by this Paragraph.
Except as installed by Declarant or by third parties as provided above, no structures
or improvements, including without limitation decks, patios, fences, walkways or
landscaping, shall be erected or maintained upon said Utility, Drainage and Sewer
Easements.
2. Declaration. Declarant hereby' expressly declares that the Tract shall be held,
conveyed and transferred in accordance with the provisions of this Declaration.
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and removal of trees, shrubbery, flowers and other plantings, entryway signage, walls and other
improvements and additional similar landscape improvements (all of which items, as existing
from time to time, shall constitute "Landscape Improvements"). Except as installed by the
Declarant or the Corporation, and except for any utility facilities or drainage facilities which may
be installed in any easement that may now or hereafter be declared, granted or reserved in or
upon any portion of the Real Estate and designated on the Plat as a Landscape Maintenance
Access Easement, no structures, fences or other improvements shall be installed or maintained in
or upon any Landscape Maintenance Access Easements. Notwithstanding the foregoing
provisions of this Paragraph and the provisions of any Plat or other recorded instrument executed
by Declarant designating a Landscape Maintenance Access Easement, a Landscape Maintenance
Access Easement shall automatically terminate as to that portion of such easement area that is
located within ,or upon any public right-of-way hereafter dedicated to the public upon the
recording of a Plat or other instrument creating such public right-of-way.
8. Ownership of Common Area. The Common Area shall be conveyed to or owned by
the Corporation, and shall be held for the use and enjoyment of the Members, all of whom shall
have the right and easement of enjoyment in and to the Common Area which right shall pass
with title to every Lot, subject to the provisions of this Declaration, including but not limited to,
the following:
(a) The right of the Corporation, upon approval by a written instrument
signed by two-thirds of all Class A Members, two-thirds of all Class B Members and
by two-thirds of all first mortgagees, to dedicate or transfer all or any part of the
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Common Area to any public agency, authority or utility for such Common Area
purposes and subject to such conditions as may be agreed by the Corporation.
(b) The right of the Corporation to adopt such rules and regulations regarding
the Common Area as it deems necessary as provided in Paragraph
(c) The Common Area in Hayden Run shall be conveyed to or owned by the
Corporation on the Applicable Date or earlier, free and clear of all liens and
encumbrances except for platted or recorded easements and real estate taxes not yet
due and payable; provided, however, that the conveyance of the Common Area to
the Corporation shall not prevent Declarant from improving the Common Area as
Declarant deems appropriate (including, but not limited to construction of lakes and
recreational facilities, including any recreational or similar facilities which are solely
for the benefit of a particular section of Hayden Run) at any time prior to the
Applicable Date.
9. Delegation of Use of the Common Area. Any Member may delegate, in accordance
with provisions. of this Declaration and the rules or regulations promulgated by the Corporation,
his right of enjoyment and use of the Common Area and facilities to members of his family, his
tenants or contract purchasers who reside on any Lot.
10. Easements in Common Area. Each Owner shall have an easement in common with
each other Owner to use all pipes, wires, ducts, cables, conduits, utility lines and other common
facilities, if any, located in the Common Area and Easements. Such easement and right to use
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Articles or the Bylaws (a) the Initial Board shall hold office until the Applicable Date,
and (b) in the event of any vacancy or vacancies occurring in the Initial Board for any
reason or cause whatsoever prior to the Applicable Date, determined as provided above,
every such vacancy shall be filled by a person appointed by Declarant, who shall
thereafter be deemed a member of the Initial Board. Each Owner, by acceptance of a
deed to a Lot, or by acquisition of any interest in a Dwelling Unit by any method shall be
deemed to have appointed Declarant as such Owner's agent, attorney-in-fact and proxy,
which shall be deemed coupled with an interest and irrevocable until the Applicable Date
determined as provided above, to exercise all of said Owner's right to vote, and to vote as
Declarant determines, on all matters as to which Members of the Corporation are entitled
to vote under the Declaration, the Articles, the Bylaws or otherwise. This appointment of
Declarant as such Owner's agent, attorney-in-fact and proxy shall not be affected by
incompetence of the Owner granting the same. Each person serving on the Initial Board,
whether as an original member thereof or as a member thereof appointed by Declarant to
fill a vacancy, shall be deemed a Member of the Corporation and an Owner solely for the
purpose of qualifying to act as a member of the Board of Directors and for no other
purpose. No such person serving on the Initial Board shall be deemed or considered a
Member of the Corporation nor an Owner of a Lot for any other purpose (unless he is
actually the Owner of a Lot and thereby a Member of the Corporation).
(c) Additional Qualifications. Where an Owner consists of more than one person or is a
partnership, corporation, trust or other legal entity, then one of the persons constituting
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the multiple Owner, or a partner or an officer or trustee shall be eligible to serve on the
Board of Directors, except that no single Lot or Dwelling Unit may be represented on the
Board of Directors by more than one person at a time.
(d) Term of Office and Vacancy. Subject to the provisions of subparagraph (b) of this
Paragraph 12, at least one (1) member of the Board of Directors shall be elected at each
annual meeting of the Corporation. The Initial Board shall be deemed to be elected and
re-elected as the Board of Directors at each annual meeting until the Applicable Date
provided herein. After the Applicable Date, the Board of Directors will consist of three
(3) members, elected by the Owners. Each member of the Board of Directors shall be
elected for a term of three (3) years, except that at the first election after the Applicable
Date (which, if appropriate, may be a special meeting) one (1) member of the Board of
Directors shall be elected for a three (3) year term, one (1) member for a two (2) year
term, and one (1) member for a one (1) year term so that the terms of at least one-third
(1/3) of the members of the Board shall expire annually. If such election is at a special
meeting, the Directors elected shall serve for the applicable period plus the time from the
special meeting to the first annual meeting. There shall be separate nominations for the
office of each member of the Board to be elected at such first election after the
Applicable Date. Each Director shall hold office throughout the term of his election and
until his successor is elected and qualified. Subject to the provisions of subparagraph (b)
of this Paragraph 12 as to the Initial Board, any vacancy or vacancies occurring in the
Board shall be filled by a vote of a majority of the remaining members of the Board or by
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vote of the Owners if a Director is removed in accordance with subparagraph (e) of this
Paragraph 12. The Director so filling a vacancy shall serve until the next annual meeting
of the members and until his successor is elected and qualified. At the first annual
meeting following any such vacancy, a Director shall be elected for the balance of the
term of the Director so removed or in respect to whom there has otherwise been a
vacancy.
(e) Removal of Directors.
A Director or Directors, except the members of the Initial Board, may be removed
with or without cause by vote of a majority of the votes entitled to be cast at a special
meeting of the Owners 'duly called and constituted for such purpose. In such case, his
successor shall be elected at the same meeting from eligible Owners nominated at the
meeting. A Director so elected shall serve until the next annual meeting of the Owners
and until his successor is duly elected and qualified.
(f) Duties of the Board of Directors. The Board of Directors shall be the governing
body, of the Corporation representing all of the Owners and being responsible for the
functions and duties of the Corporation, including, but not limited to, providing for the
administration of the Corporation, the management, maintenance, repair, upkeep and
replacement of the Common Area and Landscape Improvements (unless the same are
otherwise the responsibility or duty of Owners) and the collection and disbursement of
the Common Expenses. The Board may, on behalf of the Corporation, employ a
reputable and recognized professional property management agent (herein called the
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action, suit or proceeding by reason of the fact that he is or was a Director of the
Corporation, against the reasonable expenses, including attorneys' fees, actually and
necessarily incurred by him in connection with the defense of such action, suit or
proceeding, or in connection with any appeal therein, except as otherwise specifically
provided herein in actions, suits or proceedings where such Director is adjudged liable for
bad faith, gross negligence or wilful misconduct in the performance of his duties. The
Corporation shall also reimburse any such Director the reasonable costs of settlement of
or judgment rendered in any action, suit or proceeding, if it shall be found by a majority
vote of the Owners that such Director was not guilty of gross negligence or misconduct.
In making such findings and notwithstanding the adjudication in any action, suit or
proceeding against a Director, no Director shall be considered or deemed to be guilty of
or liable for negligence or misconduct in the performance of his duties where, acting in
good faith, such Director relied on the books and records of the Corporation or statements
or advice made by or prepared by the Managing Agent (if any) or any officer or
employee thereof, or any accountant, attorney or other person, firm or corporation
employed by the Corporation'to render advice or service unless such Director had actual
knowledge of the falsity or incorrectness thereof; nor shall a Director be deemed guilty of
or liable for negligence or misconduct by virtue of the fact that he failed or neglected to
attend a meeting or meetings of the Board of Directors.
(1) Bond. The Board of Directors may provide surety bonds and may require the
Managing Agent (if any), the treasurer of the Corporation, and such other officers as the
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14. Real Estate Taxes. Real estate taxes are to be separately assessed and taxed to each
Lot. In the event that for any year the real estate taxes are not separately assessed and taxed to
each Lot but are assessed and taxed on the Real Estate or part thereof as a whole, without a
breakdown for each Lot, then each Owner shall pay his proportionate share of the real estate
taxes assessed to the land, comprising the Real Estate or that part thereof that is assessed as a
whole, which shall be the ratio that the square footage in his Lot bears to the total square footage
of all the land comprising the Real Estate or part thereof assessed as a whole. Real estate taxes
assessed on the improvements on the Real Estate shall be paid by the Owner of such
improvements. Any real estate taxes or other assessments which are chargeable against the
Common Area shall be paid by the Corporation and treated as a Common Expense.
15. Utilities. Each Owner shall pay for his own utilities which are separately metered.
Utilities which are not separately metered, if any, shall be treated as and paid as part of the
Common Expense unless otherwise determined by the Corporation.
16. Maintenance, Repairs and Replacements. Maintenance, repairs, replacements and
upkeep of the Common Area and Landscape Improvements (except as such is the obligation of
the individual Owners) shall be furnished by the Corporation, as a part of its duties, and the cost
thereof shall'constitute a part of'the Common Expenses. After the Applicable Date and for so
long as the Declarant owns any Lot(s), Declarant may, upon five (5) days notice to the
Corporation, undertake any maintenance, repair or upkeep which the Corporation is obligated,
but has failed, to undertake. Declarant may then bill the Corporation for the cost of such
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maintenance, repair or upkeep. Such bill, if not paid by the Corporation within thirty (30) days
of receipt, shall bear interest at the rate of (12%) per annum.
Each Owner shall be responsible for maintaining and keeping his Lot, Dwelling Unit, and
all other structural improvements located on his Lot in a good, clean, neat, sanitary and well
maintained condition and shall do such work thereon as is required to cause such Lot and
structural improvements to be so maintained. The obligation to maintain a Lot shall exist,
whether or not a Dwelling Unit exists on such Lot, and the Owner of such Lot shall keep such
Lot maintained in the same manner as such Lot would be maintained if a Dwelling Unit existed
thereon.
Each Owner shall also maintain (i) the dusk-to-dawn lights installed on his Lot in good
working condition, including but not limited to, replacement of photo cells; (ii) the mailbox and
post installed on his Lot in good working condition; and (iii) any trees originally planted on his
Lot in the area adjacent to the sidewalk ("Street Trees"). Any repair or replacement of mailboxes
and/or posts shall be of the same design and quality as originally installed by Declarant. In the
event any Street Tree dies, the Owner of such Lot shall be resportsible for replacing, at Owner's
expense, the Street Tree with a substantially similar tree, meaning a tree of the same species as
the original Street Trees and with a minimum caliper of two and one-half(2Y2) inches. Each
Owner shall be responsible for the maintenance of the Street Trees located on his Lot.
Notwithstanding any obligation or duty of the Corporation to repair or maintain the
Common Area or Landscape Improvements, if, due to the willful, intentional or negligent acts or
omissions of an Owner or of a member of his family or of a guest, tenant, invitee or other
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occupant or visitor of such Owner, damage shall be caused, or if maintenance, repaIrs or
replacements shall be required thereby, which would otherwise be a Common Expense, then
such Owner shall pay for such damage and such maintenance, repairs and replacements, as may
be determined by the Corporation, unless such loss is covered by the Corporation's insurance
with such policy having a waiver of subrogation clause. If not paid by such Owner upon demand
by the Corporation, the cost of repairing such damage shall be added to and become a part of the
assessment to which such Owner's Lot is subject.
If any Owner shall fail (i) maintain and keep his Lot, Dwelling Unit and other structural
improvements located on his Lot in a good, clean and sanitary condition as determined by the
Board of Directors or (ii) comply with the terms of this Paragraph 16, the Corporation may
perform any work necessary to do so and charge the Owner thereof for such cost, which cost
shall be added to and become a part of the Owner's assessment, and such cost shall be
immediately due, and shall be secured by the Corporation's lien on the Owner's Lot.
So long as the Tract is subject to this Declaration each Owner, by his acceptance of a deed
to any Lot, irrevocably grants to the Corporation, its agents and employees, the right, in the form
of a permanent easement, to enter upon, across and over the Lot owned by such Owner under
such conditions as are reasonably necessary to effect the maintenance, cleaning, repair,
landscaping or other work contemplated herein.
17. Architectural Control
(a) The Architectural Review Board. As a standing committee of the Corporation, there
shall be, and hereby is, established an Architectural Review Board consisting of three (3)
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or more persons. Until the Applicable Date, the Architectural Review Board shall be the
Initial Board of Directors. After the Applicable Date, the Architectural Review Board
shall be appointed by the Board of Directors and may be different than or the same as the
Board of Directors.
(b) Purposes. "The Architectural Review Board shall regulate the external design,
appearance, use, location and maintenance of the Tract (including the Common Area,
Easements, Landscape Improvements and Lots) and of improvements thereon in such
manner as to preserve and enhance values and to maintain a harmonious relationship
among structures and improvements.
(c) Conditions. No improvements, alterations, excavation or changes in grade or other
work which in any way alters any Lot or the exterior of any Dwelling Unit or other
improvement thereon shall be made or done without the prior written approval of the
Architectural Review Board, except as otherwise expressly provided in this Declaration.
There shall be no requirement that the Architectural Review Board approve the initial
construction of a Dwelling Unit on a Lot. No building, fence, wall, Dwelling Unit, or
other structure shall' be commenced, erected, maintained, improved, altered, made or
done on any Lot without the prior written approval of the plans by the Architectural
Review Board other" than the initial construction of a Dwelling Unit and other
improvements provided, the plans for such construction are approved by Declarant.
(d) Procedures. In the event the Architectural Review Board fails to approve, modify or
disapprove in writing an application within thirty (30) days after such application (and all
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plans, drawings, specifications and other items required to be submitted to it in
accordance with such rules as it may adopt) have been given to it, approval will be
deemed granted by the Architectural Review Board. A decision of the Architectural
Review Board may be appealed to the Board of Directors which may reverse or modify
such decision by a majority vote.
18. Assessments
(a) Annual Accounting. Annually, after the close of each fiscal year of the Corporation,
the Board shall cause to be prepared and furnished to each Owner a financial statement
prepared by an accounting group approved by the Board, which statement shall show all
receipts and expenses received, incurred and paid during the preceding fiscal year.
(b) Proposed Annual Budget. Annually, before the date of the annual meeting of the
Corporation, the Board of Directors shall cause to be prepared a proposed annual budget
for the next fiscal year estimating the total amount of the Common Expenses for the next
fiscal year and shall furnish a copy of such proposed budget to each Owner at or prior to
the time the notice of such annual meeting is mailed or delivered to such Owners. The
annual budget shall be submitted to the Owners at the annual meeting of the Corporation
for adoption and, if so adopted, shall be the basis for the Regular Assessments
(hereinafter defined) for the next fiscal year. At the annual meeting of the Owners,
notwithstanding any other provision in this Declaration, the Articles or the Bylaws, the
budget may be approved in whole or in part or may be amended in whole or in part by a
majority vote of those Owners present either in person or by proxy; provided, however,
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t~at in no event shall the annual meeting of the Owners be adjourned until an annual
budget is approved and adopted at such meeting, either the proposed annual budget or the
proposed annual budget as amended. The annual budget, the Regular Assessments and
all sums assessed by the Corporation shall be established by using generally accepted
accounting principles applied on a consistent basis.
The annual budget and the Regular Assessments shall, in addition, be established
to include the establishment and maintenance of a replacement reserve fund for capital
expenditures and replacement and repair of the Common Area and Landscape
Improvements that must be repaired and replaced on a periodic basis, which replacement
reserve fund shall be used for those purposes and not for usual and ordinary maintenance
expenses. By way of example only, the replacement reserve fund will be used for
repairing and replacing items such as pumps, filters, landscaping (other than annual
plantings and mulch), equipment, playground facilities and clubhouse furnishings and
equipment. Usual and ordinary expenses which will not be paid out of the replacement
reserve fund include but are,not limited to, snow removal, fertilization, annual plantings,
mulch, and preventive maintenance contracts. Such replacement reserve fund shall be
maintained by the Corporation in a separate interest bearing account or accounts with one
or more banks or savings and loan associations authorized to conduct business in
Hamilton County, Indiana selected from time to time by the Board.
The failure or delay of the Board of Directors to prepare a proposed annual budget
and to furnish a copy thereof to the Owners shall not constitute a waiver or release in any
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manner of the obligations of the Owners to pay the Common Expenses as herein provided,
whenever determined. Whenever, whether before or after the annual meeting of the Corporation,
there is no annual budget approved by the Owners as herein provided for such current fiscal year,
the Owners shall continue to pay Regular Assessments and Additional Assessments for Duplex
Units based upon the last approved budget or, at the option of the Board, based upon one
hundred and ten percent (110%) of such last approved budget, as a temporary budget.
(c) Regular Assessments.
The annual budget, as adopted by the Owners, shall, based on .the estimated cash
requirement for the Common Expenses in the current fiscal year as set forth in said budget,
contain a proposed assessment, against each Lot equal to the Common Expenses multiplied
by a percentage equal to one divided by the total number of Lots in the Tract. Immediately
following the adoption of the annual budget, each Owner shall be given written notice of
such assessment against his respective Lot (herein called the "Regular Assessment");
provided however, that any Regular Assessments, Special Assessments or Additional
Assessments may be applied to Lots owned by Declarant only with the written consent of
Developer which written consent shall not be inferred or implied by Declarant's execution
and recordation of this Declaration. In the event the Regular Assessment for a particular
fiscal year is initially based upon a temporary budget, such Regular Assessment shall be
revised, within fifteen (15) days following adoption of the final annual budget by the
Owners, to reflect the assessment against each Lot based upon such annual budget as
finally adopted by the Owners. The aggregate amount of the Regular Assessments shall be
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The Regular Assessment for the current fiscal year of the Corporation shall
become a lien on each separate Lot as of the first day of each fiscal year of the
Corporation, even though the final determination of the amount of such Regular
Assessment may not have been made by that date. The fact that an Owner has paid his
Regular Assessment for the current fiscal year in whole or in part based upon a temporary
budget and thereafter, before the annual budget and Regular Assessment are finally
determined, approved and adjusted as herein provided, sells, conveys or transfers his Lot
or any interest therein, shall not relieve or release such Owner or his successor as Owner
of such Lot from payment of the Regular Assessment for such Lot as finally determined,
and such Owner and his successor as Owner of such Lot shall be jointly and severally
liable for the Regular Assessment as finally determined. Any statement of unpaid
assessments furnished by the Corporation pursuant to Paragraph 19 hereof prior to the
final determination and adoption of the annual budget and Regular Assessment for the
year in which such statement is made shall state that the matters set forth therein are
subject to adjustment upon determination and adoption of the final budget and Regular
Assessment for such year, and all parties to whom any such statement may be delivered
or who may rely thereon shall be bound by such final determinations. Semi-annual
installments of Regular Assessments shall be due and payable automatically on their
respective due dates without any notice from the Board or the Corporation, and neither
the Board nor the Corporation shall be responsible for providing any notice or statements
to Owners for the same.
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(d) Special Assessments. From time to time Common Expenses of an unusual or
extraordinary nature or not otherwise anticipated may arise. At such time and without the
approval of the Owners, unless otherwise provided in this Declaration, the Board of
Directors shall have the full right, power and authority to make special assessments
which, upon resolution of the Board, shall become a lien on each Lot, prorated in equal
shares (herein called "Special Assessment"). Without limiting the generality of the
foregoing provisions, Special Assessments may be made by the Board of Directors from
time to time to pay for capital expenditures and to pay for the cost of any repair or
reconstruction of damage caused by fire or other casualty or disaster to the extent
insurance proceeds are insufficient therefor under the circumstances described in this
Declaration.
(e) Additional Assessments. In the event that Declarant constructs any recreational or
similar facilities which recreational or similar facilities are for the sole benefit and use of
the Owners of Lots in a particular section of Hayden Run, the expenses associated
therewith shall be an Additional Assessment. Any Additional Assessment will be
assessed against each Lot in that section in an amount equal to the expenses multiplied by
a percentage equal to one (1) divided by the total number of Lots in the affected section.
Such Additional Assessment shall be included in the annual budget and shall be due at
the same time as the Regular Assessment. In the event the Additional Assessment for a
particular fiscal year of the Corporation was based upon a temporary budget, any
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adjustment shall be done In the manner provided for Regular Assessments under
Paragraph 18 (c).
(f) Regular Assessments Prior to the Applicable Date. During the period that Declarant
is selling Lots and Dwelling Units are being constructed within the Tract, it is difficult to
accurately allocate the Comrrion Expenses to the individual Lots. The purpose of this
section is to provide the method for the payment of the Common Expenses during the
period prior to the Applicable Date to enable the Corporation to perform its duties and
functions. Accordingly and notwithstanding any other provision contained in the
Declaration, the Articles or the Bylaws or otherwise, prior to the Applicable Date, the
annual budget and all Regular Assessments, Additional Assessments and Special
Assessments shall be establishe~ by the Initial Board without any meeting or concurrence
of the Owners; provided, however, the Regular Assessments shall be determined in
accordance with the provisions contained in this Paragraph 18.
Prior to the Applicable Date, the Corporation will enter into a management
agreement with Declarant or a corporation or other entity affiliated with Declarant or a
third party management company (hereinafter referred to as "Management Agent" or
"Managing Agent") in accordance with the provisions of Paragraph 13 of this
Declaration. So long as such management agreement remains in effect, the Common
Expenses or Regular Assessments shall be paid by Owners to Management Agent.
Management Agent shall guarantee that until the earlier of (1) the termination of said
management agreement, or (2) December 31, 2002, the yearly Regular Assessment shall
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not exceed $7!!2. ~fter December 31, 2002, assuming that said management agreement
has not been terminated) and so long thereafter as said management agreement remains in
effect and Management Agent continues to perform such functions, Management Agent
guarantees that the yearly Regular Assessment shall not exceed the amount of the
Guaranteed Charge, plus (1) the greater of an amount representing an increase thereof to
reflect any increase in the Consumer Price Index (all items - all cities) published by the
United States government over such index as existed in the month of Decemb<?r, 2002, or
(2) ten percent (10%). The amount to be added to the Guaranteed Charge shall be in an
amount equal to the same percentage of the Guaranteed Charge as the percentage
increase in said Consumer Price Index or ten percent (10%), whichever is greater, or if
Declarant so determines a lesser amount. Such adjustments to the Guaranteed Charge
shall be made annually on the first day of each fiscal year so long as said management
agreement remains in effect and Management Agent continues to perform such functions.
Such yearly charge shall, during such guaranteed period, entirely defray the Owner's
obligation for his share of Common Expenses or shall be the Owner's entire Regular
Assessment. Declarant shall be responsible for any deficit during such guarantee period;
provided, however, that this guarantee is not intended to include, and does not include,
major physical alterations or other unusual expenditures not ordinarily anticipated in
normal maintenance operations. Such expenditures would be' covered through Special
Assessments, or, if sufficient, the replacement reserve fund.
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Prior to the Applicable Date, ten percent (10%) of the Regular Assessment shall
be deposited into the replacement reserve fund (as established by Paragraph 18 (b)) until
the balance of such replacement reserve fund is $25,000.00. Thereafter, deposits into the
replacement reserve fund will cease unless and until expenditures are made from such
fund, at which time ten percent (10%) of the Regular Assessments will again be
deposited into such fund until the balance of such fund again reaches $25,000.00. After
the Applicable Date, ten percent (10%) of the Regular Assessment will be deposited into
the replacement reserve fund regardless of the balance of such fund.
That portion of the Regular Assessment collected by Declarant prior to the
Applicable Date applicable to the replacement reserve fund shall be held by the Initial
Board and if required, applied to the repair and replacement of the Common Area and
Landscape Improvements as also described in Paragraph 18(b). To the extent that such
replacement reserve fund is not so applied, the balance thereof shall be retained by the
Corporation at the Applicable Date.
Payment of the Regular Assessment prior to the Applicable Date with respect to
each Lot shall commence on the date of conveyance of such Lot by Declarant to such
new owner ("Commencement Date"). The first payment shall be payable on the
Commencement Date prorated to the first day of the month when the next semi-annual
payment is due. Thereafter, payment of the Regular Assessment shall be paid
semi-annually beginning with the first day of the fiscal year or the first day of the seventh
calendar month of the fiscal year, as applicable.
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Each Owner hereby authorizes the Corporation and the Board of Directors and its
officers to enter into the aforesaid management agreement described in Paragraph 13 of
this Declaration and to adhere to and abide by the same.
Neither the Declarant, or any builder constructing Dwelling Units within the Tract
shall be assessed any portion of any Regular, Special or Additional Assessment prior to
the Applicable Date.
(g) Failure of Owner to Pay Assessments. No Owner may exempt himself from paying
Regular Assessments, Additional Assessments and Special Assessments or from
contributing toward the Common Expenses or toward any other expense lawfully agreed
upon by waiver of the use or enjoyment of the Common Area or by abandonment of the
Lot belonging to him. Each Owner shall be personally liable for the payment of all
Regular, Additional and Special Assessments. Where the Owner constitutes more than
one person, the liability of such persons shall be joint and several. If any Owner shall
fail, refuse or neglect to make any payment of any Regular Assessment, Additional
Assessment or Special Assessment when due, the lien for such assessment on the
Owner's Lot and Dwelling Unit may be filed and foreclosed by ~he Board of Directors
for and on behalf of the Corporation as a mortgage on real property or as otherwise
provided by law. Upon the failure of the Owner to make timely payments of any Regular
Assessment, Additional Assessment or Special Assessment when due the Board may, in
its discretion, accelerate the entire balance of unpaid assessments and declare the same
immediately due and payable, notwithstanding any other provisions hereof to the
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contrary. The Board may, at its option, bring suit to recover a money judgment for any
unpaid Regular Assessment, Additional Assessment or Special Assessment without
foreclosing or waiving the lien securing the same. In any action to recover a Regular
Assessment or Special Assessment, whether by foreclosure or otherwise, the Board for
and on behalf of the Corporation shall be entitled to recover from the Owner of the
respective Lot and Dwelling Unit costs and expenses of such action incurred (including
but not limited. to reasonable attorneys' fees) and interest from the date such assessments
were due until paid at the rate equal to the prime interest rate as announced by Bank One,
Indianapolis, NA, from time to time by (or if said bank is no longer in existence then
such rate charged by a national bank in Hamilton County, Indiana, selected by the Board
of Directors) during the unpaid period plus three percent (3%).
(h) Subordination of Assessment Lien to Mortgage. Notwithstanding anything
contained in this Declaration, the Articles or the Bylaws, any sale or transfer of a Lot to a
Mortgagee pursuant to a foreclosure on its mortgage or conveyance in lieu thereof, or a
conveyance to any person at a public sale in a manner provided by law with respect to
mortgage foreclosures shall extinguish the lien of any unpaid installment of any Regular
Assessment, Additional Assessment or Special Assessment as to such installment which
became due prior to such sale, transfer or conveyance; provided, however, that the
extinguishment of such lien cannot relieve the prior owner from personal liability therefor.
No such sale, transfer or conveyance shall relieve the Lot and Dwelling Unit or the
purchaser at such foreclosure sale or grantee in the event of conveyance in lieu thereof,
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from liability for any installments of Regular Assessments, Additional Assessments or
Special Assessments thereafter becoming due or from the lien therefor. Such unpaid share
of any Regular Assessments, Additional Assessments or Special Assessments, the lien for
which has been divested as aforesaid shall be deemed to be a Common Expense collectible
from all Owners (including the party acquiring the subject Lot from which it arose).
(i) Default. Subject to the provisions of the mortgage documents, a failure of an Owner
to pay any Regular Assessment, Additional Assessment or Special Assessment as
provided herein shall not constitute a default under such mortgage documents.
19. Mortgages and Unpaid Assessments.
(a) Notice to Corporation. Any Owner who places a first mortgage lien upon his Lot,
or the Mortgagee, shall notify the Secretary of the Corporation thereof and provide the
name and address of the Mortgagee. A record of such Mortgagee and name and address
shall be maintained by the Secretary and any notice required to be given to the Mortgagee
pursuant to the terms of this Declaration, the Bylaws or otherwise shall' be deemed
effectively given if mailed to such Mortgagee at the address shown in such record at the
time provided. Unless notification of any such mortgage and the name and address of
Mortgagee are furnished to the Secretary, either by the Owner or the Mortgagee, no
notice to any Mortgagee, as may be otherwise required by this Declaration, the Bylaws or
otherwise, shall be required and no Mortgagee shall be entitled to vote on any matter to
which it otherwise may be entitled by virtue of this Declaration, the Bylaws, a proxy
granted to such Mortgagee in connection with the mortgage, or otherwise.
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The Corporation shall, upon request of a Mortgagee who has furnished the
Corporation with its name and address as hereinabove provided, furnish such Mortgagee
with written notice of any default in the performance by its borrower of any obligations
of such borrower under this Declaration or the Bylaws which is not cured within sixty
(60) days.
(b) Notice of Unpaid Assessments. The Corporation shall, upon request of a
Mortgagee, a proposed mortgagee, or a proposed purchaser who has a contractual right to
purchase a Lot, furnish to such Mortgagee or purchaser a statement setting forth the
amount of the unpaid Regular Assessments, Additional Assessments or Special
Assessments or other charges against the Lot, which statement shall be binding upon the
Corporation and the Owners, and any Mortgagee or grantee of the Lot shall not be liable
for nor shall the Lot conveyed be subject to a lien for any unpaid assessments or charges
in excess of the amounts set forth in such statement or as such assessments may be
adjusted upon adoption of the final annual budget, as referred to in Paragraph 18 hereof.
(c) Right of Mortgagee to Pay Real Estate Taxes or Insurance Premiums. Mortgagees
shall have the right, but not the obligation, (1) to pay any taxes or other charges against
the Common Area which are in default and (2) to pay any overdue premiums on hazard
insurance for the Common Area or to secure new hazard insurance for the Common Area
on the lapse of a policy. Any mortgagee making such payment shall be owed immediate
reimbursement by the Corporation.
20. Insurance.
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(a) Casualty Insurance. The Corporation shall purchase a master casualty insurance
policy affording fire and extended coverage insurance insuring all of the Common Area
and Landscape Improvements in an amount equal to the full replacement value of the
improvements which in whole or in part, comprise the Common Area and Landscape
Improvements, unless the Board determines that a lesser amount of insurance is
appropriate. If the Board of Directors can obtain such coverage for reasonable amounts
they shall also obtain "all risk" coverage. The Board of Directors shall be responsible for
reviewing at least annually the amount and type of such insurance and shall purchase
such additional insurance as is necessary to provide the insurance required above.
All proceeds payable as a result of casualty losses sustained which are covered by
insurance purchased by the Corporation as hereinabove set forth shall be paid to it or to
the Board of Directors. The proceeds shall be used or disbursed by the Corporation or
Board of Directors, as appropriate.
Such master casualty insurance policy, and "all risk" coverage, if obtained, shall
(to the extent the same are obtainable) contain provisions that the insurer (a) waives its
right to subrogation as to any claim against the Corporation, the Board of Directors, its
agents and employees, Owners, their respective agents and guests, and (b) contains an
endorsement that such policy shall not be terminated for nonpayment of premiums
without at least thirty (30) days prior written notice to Mortgagees.
Each Owner shall be solely responsible for loss or damage to his Dwelling Unit
and the contents thereof, however caused, and his personal property stored elsewhere on
37
the Tract and the Corporation shall have no liability to the Owner for such loss or
damage. Each Owner shall be solely responsible for obtaining his own insurance to
cover any such loss and risk.
(b) Public Liabilitv Insurance. The Corporation shall also purchase a master
comprehensive public liability insurance policy in such amount or amounts as the Board
of Directors shall deem appropriate from time to time. Such comprehensive public
liability insurance policy shall cover the Corporation, the Board of Directors, any
committee or organ of the Corporation or Board, any Managing Agent appointed or
employed by the Corporation, all persons acting or who may come to act as agents or
employees of any of the foregoing with respect to the Tract. Such public liability
insurance policy shall contain a "severability of interest" clause or endorsement which
shall preclude the insurer from denying the claim of an Owner because of negligent acts
of the Corporation or other Owners.
(c) Other Insurance. The Corporation shall also obtain any other insurance required by
law to be maintained, including but not limited to workmen's compensation and
occupational disease insurance, and such other insurance as the Board of Directors shall
from time to time deem necessary, advisable or appropriate, including, but not limited to,
liability insurance on vehicles owned or leased by the Corporation and officers' and
directors' liability policies. Such insurance shall inure to the benefit of each Owner, the
Corporation, the Board of Directors and any Managing Agent acting on behalf of the
Corporation. Each Owner shall be deemed to have delegated to the Board of Directors
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his right to adjust with the insurance companies all losses under the policies purchased by
the Board of Directors the proceeds of which are payable to the Board or the Corporation.
(d) General Provisions. The premiums for all insurance hereinabove described shall be
paid by the Corporation as part of the Common Expenses.
(e) Owners to Maintain Insurance. Each Owner of a Dwelling Unit shall at all times
maintain fire and extended coverage insurance in an amount equal to the full insurable
replacement cost of such Dwelling Unit.
21. Casualty and Restoration of Common Dwelling Area.
In the event of damage to or destruction of any of the Common Area or Landscape
Improvements due to fire or any other casualty or disaster, the Corporation shall promptly cause
the same to be repaired and reconstructed. The proceeds of insurance carried by the Corporation,
if any, shall be applied to the cost of such repair and reconstruction.
In the event the insurance proceeds, if any, received by the Corporation as a result of any
such fire or any other casualty or disaster are not adequate to cover the cost of repair and
reconstruction of the Common Area or Landscape Improvements, or in the event there are no
insurance proceeds, the cost for restoring the damage and repairing and reconstructing the
Common Area so damaged or destroyed (or the costs thereof in excess of insurance proceeds
received, if any) shall be assessed by the Corporation against all of the Owners in equal shares.
Any such amounts assessed against the Owners shall be assessed as part of the Common
Expenses and shall constitute a lien from the time of assessment as provided herein.
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(c) Nothing shall be done or kept in any Dwelling Unit, or on any Lot, ,or on
the Common Area which will cause an increase in the rate of insurance on any Common
Area. No Owner shall permit anything to be done or kept in his Dwelling Unit or on his
Lot or on any of the Common Area which will result in a cancellation of insurance on
any Dwelling Unit or any part of the Common Area, or which would be in violation of
any law or ordinance or the requirements of any insurance underwriting or rating bureau.
(d) No nuisance shall be permitted on any Lot.
(e) No Owner shall cause or permit anything to be hung or displayed on the
outside of the windows of his Dwelling Unit or placed on the outside walls of any
Dwelling Unit or building. No sign, awning, canopy, shutter or radio or television
antenna or other attachment or thing shall be affixed to or placed upon the exterior walls
or roofs or any other parts of any Dwelling Unit without the prior written consent of the
Architectural Review Board. No sign of any kind shall be displayed to the public view
on any Lot, except that one sign of not more than six (6) square feet may be displayed at
any time solely for the purpose of advertising a property for sale, and except that
Declarant may use larger signs during the sale and development of the Tract.
(0 No animals, livestock or poultry of any kind shall be raised, bred or kept
in any Dwelling Unit or on any Lot or any of the Common Area or any of the Easements,
except that pet dogs, cats or customary household pets may be kept in a Dwelling Unit,
provided that such pet is not kept, bred or maintained for any commercial purpose, and
does not create a nuisance.
41
and regulations as may from time to time be promulgated and issued by the Board
governing the operation, use and enjoyment of the Common Area.
(k) No boat docks, decks, rafts or similar structures or improvements shall be
permitted on or near the lakes. No Owner of any Lot shall do or permit to be done any
action or activity which could result in the pollution of the lakes, diversion of water,
change in elevation of the water level, earth disturbance resulting in silting or any other
conduct which could result in an adverse effect upon water quality, drainage or proper
lake management or otherwise impair or interfere with the use of the lake for drainage
and related purposes for the benefit of Hayden Run. No Owner, members of their
families, guests or invitees or occupants of any Dwelling Unit or other persons entitled to
use the same, may swim, boat, ice skate or engage in similar activities on the lake.
(I) No boats, campers, trailers of any kind, busses, mobile homes, recreational
vehicles, trucks (larger than 3/4 ton), motorcycles, minibikes or mopeds shall be
permitted, parked or stored anywhere within the Tract, unless stored completely enclosed
within a garage. No repair work shall be done on the Tract on any vehicles, including
passenger automobiles unless completely enclosed within a garage.
(m) No Owner shall be allowed to plant trees, landscape or do any gardening
in any of the Common Area or Easements, except with express prior permission from the
Board.
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(x) No above ground sWlffiffilng pools shall be erected, constructed or
installed on any Lot. The construction of any in ground pool, hot tub or spa requires the
prior written approval of the Architectural Review Board.
Notwithstanding the foregoing, any such device may be installed and maintained on any
Lot without the written approval of the Architectural Review Board if (i) it is not visible from
neighboring Lots, streets or Common Area; or (ii) the Owner prior to installation has received
the written consent of the Owners of all Lots who would have views of the device from their
Lots and presented such consents to the Architectural Review Board; or (iii) the device is
virtually indistinguishable from structures, devices or improvements such as heat pumps, air
conditioning units, barbeque grills, patio furniture and garden equipment which are allowed
by this Declaration; or (iv) it is a satellite dish two (2) feet or less in diameter.
Notwithstanding anything to the contrary contained herein or in the Articles or Bylaws,
including, but not limited to, any covenants and restrictions set forth herein or otherwise,
Declarant shall have, until the Applicable Date, the right to use and maintain any Lots and
Dwelling Units owned by Declarant and other portions of the Tract (other than individual
Dwelling Units and Lots owned by persons other than Declarant), all of such number and size
and at such locations as Declarant in its sole discretion may determine, as Declarant may deem
advisable or necessary in its sole discretion to aid in the construction of Dwelling Units and the
sale of Lots and Dwelling Units or for the conducting of any business or activity attendant
thereto, including, but not limited to, model Dwelling Units, storage areas, construction yards,
signs, construction offices, sales offices, management offices and business offices. Declarant
46
shall have the right to relocate any or all of the same from time to time as it desires. At no time
shall any of such facilities so used or maintained by Declarant be or become part of the Common
Area, unless so designated by Declarant, and Declarant shall have the right to remove the same
from the Tract at any time.
23. Expanding the Real Estate That is Subject to the Declaration. The Real Estate that
is described herein as Section 1 (in paragraph B of the recitals of this Declaration) is the Real
Estate being subjected to this Declaration and constitutes Section 1 of the general plan of
development of the Real Estate. The balance of the Real Estate is the additional real estate that
Declarant has the right to subject to the terms and provisions of this Declaration. The maximum
number of Lots which may be developed on the Real Estate is seventy (70), including the Lots in
Section 1. Subject to said limit as to the maximum number of Lots to be developed on the Real
Estate, and the obligations and restrictions contained in this Declaration, Hayden Run may be
expanded by Declarant to include additional portions of the Real Estate in one or more additional
Sections by the execution and recording of one or more amendments or supplements to this
Declaration and one or more final plats; provided, however, that no single exercise of such right
and option of expansion as to any part or parts of the Real Estate shall preclude Declarant from
time to time further expanding Hayden Run to include other portions of the Real Estate and such
right and option of expansion may be exercised by Declarant from time to time as to all or any
portions of the Real Estate so long as such expansion is done on or before May 31,2009. Such
expansion is entirely at the discretion of Declarant and nothing contained in this original
Declaration or otherwise shall require Declarant to expand Hayden Run beyond Section 1 or any
47
other portion of the Real Estate which Declarant may voluntarily in its sole discretion, from time
to time, subject to this Declaration by amendments or supplements to this Declaration as
provided above. Simultaneously with the recording of the amendments or supplements to this
Declaration expanding Hayden Run, Declarant shall record an additional plat encompassing the
portion of the Real Estate to be subjected to this Declaration. To the extent allowed under
applicable law, Declarant reserves the right to add additional contiguous real estate to the Real
Estate, which additional real estate may, in Declarant's discretion, have the use and benefit of the.
Common Areas provided herein. On the filing of a supplement to this Declaration, the portion of
the Real Estate or other real estate described in such amendment or supplement to this
Declaration shall be governed in all respects by the provisions of this Declaration. To the extent
that there are any inconsistencies or discrepancies between any Plat and this Declaration or any
amendment or supplements thereto, the terms of this Declaration shall control.
24. Amendment of Declaration.
(a) Generally. Except as otherwise provided in this Declaration, amendments
to this Declaration shall be proposed and adopted in the following manner:
(b) Notice. Notice of the subject matter of any proposed amendment shall be
included in the notice of the meeting at which the proposed amendment is to be
considered.
(c) Resolution. A resolution to adopt a proposed amendment may be
proposed by the Board of Directors or Owners having in the aggregate at least a majority
of the votes of all Owners.
48
(d) Meeting. The resolution concernIng a proposed amendment must be
adopted by the designated vote at a meeting duly called and held in accordance with the
provisions of the Bylaws.
(e) Adoption. Any proposed amendment to this Declaration must be
approved by a vote of not less than seventy-five percent (75%) in the aggregate of the
votes of all Owners; provided however, that prior to the Applicable Date all proposed
amendments shall require the written consent of the Declarant. In the event any Lot or
Dwelling Unit is subject to a first mortgage, the Mortgagee shall be notified of the
meeting and the proposed amendment in the same manner as an Owner if the Mortgagee
has given prior notice of its mortgage interest to the Board of Directors in accordance
with the provisions hereof.
(f) Special Amendments. No amendment to this Declaration shall be adopted
which changes (1) the applicable share of an Owner's liability for the Common Expenses,
or the method of determining the same, or (2) the provisions of this Declaration of
Paragraph. 19 with respect to casualty insurance to be maintained by the Corporation, or
(3) the provisions of Paragraph 21 of this Declaration with respect to reconstruction or
repair of the Common Area in the event of fire or any other casualty or disaster, or (4) the
provisions of Paragraph 17 of this Declaration establishing the Architectural Review
Board and providing for its functions, or (5) the provisions of Paragraph 18 of this
Declaration with respect to the commencement of assessments on any Lot, or (6) the
provisions of Paragraph 24b of this Declaration with respect to amendments solely by
49
Declarant without, in each and any of such circumstances, the unanimous approval of all
Owners, including Declarant so long as Declarant owns any Lot, and of all Mortgagees
whose mortgage interests have been made known to the Board of Directors in accordance
with the provisions of this Declaration.
(g) Recording. Each amendment to the Declaration shall be executed by the
President and Secretary of the Corporation and shall be recorded in the Office of the
Recorder of Hamilton County, Indiana, and such amendment shall not become effective
until so recorded.
(h) Amendments bv Declarant Only. Notwithstanding the foregoing or
anything elsewhere contained herein or in any other documents, the Declarant shall have
and hereby reserves the right and power acting alone and without the consent or approval
of the Owners, the Corporation, the Board of Directors, any Mortgagees or any other
person to amend or supplement this Declaration at any time and from time to time if such
amendment or supplement is made (a) 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 & Urban
Development, the Federal Housing Association, the Veteran's Administration 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, (b) to induce any of such agencies or entities to make, purchase, sell, insure
or guarantee first mortgages covering Lots and Dwelling Units, (c) to bring this
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Specifically, HUD shall have the right to veto any amendments to the Declaration
proposed by Declarant for so long as the Class B membership exists.
25. Acceptance and Ratification. All present and future Owners, Mortgagees, tenants
and occupants of the Lots shall be subject to and shall comply with the provisions of this
Declaration, the Articles, and the Bylaws incorporated herein by reference, and the rules and
regulations as adopted by the Board of Directors as each may be amended from time to time.
The acceptance of a deed of conveyance or the act of occupancy of any Lot shall constitute an
agreement that the provisions of this Declaration, the Articles, the Bylaws, and rules and
regulations, as each may be amended or supplemented from time to time, are accepted and
ratified by such Owner, tenant or occupant, and all such provisions shall be covenants running
with the land and shall be binding on any person having at any time any interest or estate in a Lot
or the Tract as though such provisions were recited and stipulated at length in each and every
deed, conveyance, mortgage or lease thereof. All persons, corporations, partnerships, trusts,
associations, or other legal entities who may occupy, use, enjoy or control a Lot or Lots or any
part of the Tract in any manner shall be subject to the Declaration, the Articles of Incorporation,
the Bylaws, and the rules - arid regulations applicable thereto as each may be amended or
supplemented from time to time.
26. Negligence. Each Owner shall be liable for the expense of any maintenance, repair
or replacement rendered necessary by his negligence or by that of any member of his family or
his or their guests, employees, agents or lessees to the extent that such expense is not covered by
the proceeds of insurance carried by the Corporation.
52
27. Costs and Attorneys' Fees. In any proceeding arising because of failure of an
Owner to make any payments required or to comply with any provision of this Declaration, the
Articles of Incorporation, the Bylaws, or the rules and regulations adopted pursuant thereto as
each may be amended from time to time, the Corporation shall be entitled to recover its
reasonable attorneys' fees incurred in connection with such default or failure.
28. Waiver. No Owner may exempt himself from liability for his contribution toward
the Common Expenses by waiver of the use or enjoyment of any of the Common Area or
Limited Common Area or by abandonment of his Lot.
29. Severability Clause. The invalidity of any covenant, restriction, condition,
limitation or other provision of this Declaration, the Articles or the Bylaws, shall not impair or
affect in any manner the validity, enforceability or effect of the rest of this Declaration, the
Articles, or the Bylaws, and each shall be enforced to the greatest extent permitted by law.
30. Pronouns. Any reference to the masculine, feminine or neuter gender herein shall,
unless the context clearly requires to the contrary, be deemed to refer to and include all genders.
And the singular shall include and refer to the plural and vice versa as appropriate.
31. Interpretation. The captions and titles of the various articles, sections, subsections,
paragraphs and sub-paragraphs of this Declaration are inserted herein for ease and convenience
of reference only and shall not be used as an aid in interpreting or construing this Declaration or
any provision hereof.
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32. The Plat. The Plat of Hayden Run Section 1 is incorporated into this Declaration by
reference and has been filed in the office of the Recorder of Hamilton County, Indiana, of even
date herewith.
33. Annexation. Each Owner, by the acceptance of a deed to a Lot, consents to
annexation of the Tract to the City of Carmel and agrees not to remonstrate against any proposal
for such annexation.
34. Collector Road System. Declarant hereby advises all interested persons and all
Owners that the north-south street which runs through Hayden Run has been designed and is
intended to be part of a collector road system which will connect 126th Street to and through
Hayden Run and to other neighborhoods north of Hayden Run to 141 st Street. Each Owner, by
the acceptance of a deed to a Lot, acknowledges such fact and agrees not to challenge or inhibit
such use of this road.
35. Future Construction of Recreational Facilities. Declarant intends to purchase
certain additional real estate adjacent to and/or in the same general area as the Real Estate (the
"Additional Real Estate"). Declarant intends to develop such Additional Real. Estate as
residential subdivisions. Declarant further intends to construct on ~_-portioI?: of the Additional
Real Estate certain recreational facilities including, but not limited to, a pool and a bathhouse
(the "Recreational Facilities"). To be included as part of the annual budget and the Regular
Assessment will be an amount for Recreational Facilities Expenses ("Recreational Facilities
Expenses"). Recreational Facilities Expenses are the expenses associated with the upkeep,
maintenance, repair and replacement of the Recreational Facilities. The Recreational Facilities
54
Expenses will be divided equally among all Lots in Hayden Run and all lots in the residential
subdivisions developed by Declarant on the Additional Real Estate which have the right to use.
the Recreational Facilities. Upon the construction of the Recreational Facilities, the Owners of
Lots in Hayden Run will have the right to use such Recreational Facilities subject to the
reasonable and uniform rules and regulations of the Declarant, the Corporation and/or the
corporation of the residential subdivision in which the Recreational Facilities are located.
The Corporation shal1.include as part of the Regular Assessment applicable to the Lots in
Hayden Run, the Recreational Facilities Expenses applicable to each Lot. Upon collection of the
Regular Assessment, the Corporation shall remit the amount applicable to the Recreational
Facilities Expenses to the corporation for the residential subdivision in which the Recreational
Facilities are located. However, the inclusion of the Recreational Facilities Expenses in the
Regular Assessment and the obligation of the Corporation to remit such amount shall not in any
way make the Corporation liable for the Recreational Facilities Expenses if such amount is not
paid by an Owner.
The acquisition and development of the Additional" Real Estate and the construction of
the Recreational Facilities is entirely at the discretion of Declarant and nothing contained in this
Declaration or otherwise shall require Declarant to purchase and/or develop any portion of the
Additional Real Estate and/or the Recreational Facilities.
IN WITNESS WHEREOF, the undersigned has caused this Declaration to be executed
the day and year first above written.
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