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DECLARATION OF COVENANTS" CONDITIONS AND RESTRICTIONS
FOR THE TOWNHOMES AT CITY CENTER
THIS DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS FOR
THE TOWNHOMES AT CITY CENTER (the "Declaration") is made as of
2001 by RH OF INDIANA, L.P., an Indiana limited partnership (the "Declarant").
RECITALS:
A. The Declarant is, or at the time of recordation of this Declaration will be, the owner of
certain real property located in Hamilton County, Indiana, which is more specifically
described in Exhibit A, which is attached hereto and incorporated herein by refer~nce (the
"Property").
B. The Declarant desires to create on the Property a residential community (the
"Community") which shall have permanent open spaces and other common facilities for
the benefit of the residents of the Community.
C. The Declarant desires to provide for the preservation of the values of the Community and
such other areas as may be subjected to this Declaration, and to provide for the maintenance
of the open spaces and other facilities, and, to this end, declare and publish their intent to
subject the Property to the covenants, conditions, restrictions, easements, charges and liens
hereinafter set forth, it being intended that they shall run with title to the Property and shall
be binding on all persons or entities having or acquiring any right, title or interest in the
Property or any part thereof and shall inure to the benefit of each owner thereof.
D. The Declarant has deemed it desirable for the efficient preservation of the values of the
Community to create an association to be known as The Townhomes at City Center
Homeowners Association, Inc., an Indiana not-for-profit corporation (the "Association") to
which shall be delegated and assigned the powers of owning, maintaining and administering
the common areas and facilities, administering and enforcing the covenants and restrictions
made in and pursuant to this Declaration and collecting and disbursing the assessments and
charges hereafter created.
NOW, THEREFORE, the Declarant, for and in consideration of the premises and the
covenants contained herein, grants, establishes and conveys to each owner of each Lot (as herein
defined), mutual, non-exclusive rights, privileges and easements of enjoyment on equal terms and
in common with all other owners of Lots in and to the use of any common areas and facilities; and
further, the Declarant declares that the Property shall be held, transferred, sold, conveyed and
occupied subject to the covenants, conditions, restrictions, reservations, easements, charges and
liens hereinafter set. forth, which are for the purpose of protecting the value and desirability of, and
shall run with, the Property and be binding on all parties having any right, title or interest in the
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Property or any part thereof, their respective successors and assigns, and shall inure to the benefit of
each owner thereof.
ARTICLE I
DEFINITIONS
Section 1.1. "Association" shall mean and refer to The Townhomes at City Center
Homeowners Association, Inc., an Indiana not-for-profit corporation, its successors and assigns.
Section 1.2. "Common Area" or "Common Areas" shall mean and refer to all real
property (including the improvements thereto) owned by the Association for the common use and
enjoyment of the Members, and shall include any private streets shown on an approved plat of the
Property and located within the Common Area's boundaries. All of the Property which is not
included in any particular Lot, as shown on such plat and/or as described herein, shall be considered
to be a part of the Common Area.
Section 1.3. "Declarant" shall mean and refer to RH of Indiana, L.P., an Indiana limited
partnership, and its successors or assigns to whom RH of Indiana, L.P., an Indiana limited
partnership, assigns any or all of its rights as Declarant pursuant to this Declaration by assignment
recorded in the Office of the Recorder of Hamilton County, Indiana.
Section 1.4. "Declaration" shall mean and refer to this Declaration of Covenants,
Conditions and Restrictions for The Townhomes at City Center, which is to be recorded in the
Office of the Recorder of Hamilton County, Indiana.
Section 1.5. "Dwelling Unit" shall mean and refer to any improvement to the Property
intended for any type of independent ownership for use and occupancy as a residence by a single
household and shall, unless otherwise specified, include within its meaning (by way of illustration
but not limitation) townhouses and detached homes.
Section 1.6. "Federal Agencies" shall mean (by way of illustration but not limitation)
the Federal Housing Authority, the Federal National Mortgage Association, the Government
National Mortgage Association, the Federal Home Loan Mortgage Corporation, the Department of
Housing and Urban Development, the Veterans Administration or any other governmental agency.
Section 1.7. "Lot" shall mean and refer to any plot of land created by and shown on a
lawfully recorded subdivision plat of the Property upon which a Dwelling Unit could be
constructed in accordance with applicable zoning ordinances, with the exception of the Common
Area and streets dedicated to public use. Each Lot shall include such property to the centerline of
any party wall separating Dwelling Units in the same Structure (as herein defined) and shall include
an area equal to one (1) foot off the exterior face of the rear wall of each Dwelling Unit.
Section 1.8. "Member" shall mean and refer to every person or entity who holds a
membership in the Association, as more particularly set forth in Article II below.
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ARTICLE IV
PROPERTY RIGHTS
Section 4.1. Member's Easements of Enjoyment. Every Member shall have a right
and easement of enjoyment in and to the Common Areas, and such easement shall be appurtenant
to and shall pass with the title to every Lot, subject to:
(a) the right of the Association to limit the number of guests of Members on the
Common Area or to make any part of the Common Area available to occupants of adjacent
real estate or members of the general public;
(b) the right of the Association to adopt and enforce rules and regulations
governing the use of the Common Area and the personal conduct of Owners, occupants and
guests thereon, including, without limitation, the imposition of fines for the -violation
thereof;
(c) the right of the Association to suspend the voting rights, the right to run for
office within the Association, and rights of a Member to the use of any nonessential
services offered by the Association, to the extent that access and the provision of utilities to
the Lot through the Common Area are not precluded, for any period during which any
assessment against such Member's Lot remains unpaid or for a period not to exceed sixty
(60) days for any infraction of its published rules and regulations;
(d) the right of the Association at any time, or upon dissolution of the
Association, and consistent with the then-existing zoning and subdivision ordinances of the
City of Carmel (the "City") and/or Hamilton County, Indiana (the "County") and
consistent with its designation of the Common Area as "open space", to transfer all or any
part of the Common Area to an organization conceived and organized to own and maintain
common open space, or, if such organization will not accept such a transfer, then to the City
and/or County (herein sometimes collectively referred to as the "Local Governing
Authority") or other appropriate governmental agency, or, if such a transfer is declined,
then to another entity in accordance with the laws governing the same, for such purposes
and subject to. conditions as may be agreed to by the Members. Except in the case of
dissolution, any such transfer shall have the assent of at least two-thirds (2/3) of each class
of Members entitled to vote and who are voting in person or by proxy at a meeting duly
called for this purpose at which a quorum is present, written notice of which having been
sent to all Members not less than twenty-five (25) days nor more than fifty (50) days in
advance of the meeting setting forth the purpose of the meeting. Upon such assent and in
accordance therewith, the officers of the Association shall execute the necessary documents.
The re-subdivision or adjustment of the boundary lines of the Common Area and the
granting of easements by the Association shall not be deemed a transfer within the meaning
of this Article;
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ARTICLE V
ASSESS1\1ENTS
Section 5.1. Creation of the Lien and Personal Obligation for Assessments. The
Declarant covenants, for each Lot owned, and each Owner of any Lot by acceptance of a deed
therefor, whether or not it shall be so expressed in any such deed or other instrument of
conveyance, is deemed to covenant and agree to pay to the Association: (a) Annual Assessments (as
hereinafter defined), (b) Special Assessments (as hereinafter defmed), and any other amounts as
may be provided for hereunder to be due from any Owner in connection with his, her or its
ownership of a Lot in the Community. Such assessments are to be established and collected as
hereinafter provided. The Association's Annual Assessments and Special Assessments, together
with interest thereon and costs of collection thereof, as hereinafter provided, shall. be a charge on
each applicable Owner's Lot and shall be a continuing lien upon the Lot against which each
assessment is made. Each such assessment, together with interest, costs, and reasonable attorneys'
fees, shall also be the personal obligation of the person who was the Owner of such Lot at the time
the assessment fell due and shall not be the personal obligation of a successor in interest unless
expressly assumed by such successor. The Annual Assessments and Special Assessments, when
assessed upon resolution of the Board of Directors for each year, shall become a lien on the Lot in
the amount of the entire Annual Assessment or Special Assessment, but shall be payable in equal
installments, collected on a monthly, bi-monthly, quarterly, semi-annual or annual basis.
Section 5.2. Purpose of Assessment. The assessments levied by the Association shall
be used to promote the recreation, health, safety and welfare of the residents and Owners of the
Property, for the improvement, maintenance and landscaping of the Common Area, including but
not limited to the payment of taxes, construction of improvements and maintenance of services,
facilities, trees, lawns, shrubbery and other plantings, and devoted to these purposes or related to
the use and enjoyment of the Common Area or other property which the Association has the
obligation to maintain, and for such other purposes as the Board of Directors may determine to be
appropriate.
Section 5.3. Establishment of Annual Assessment.
(a) The Association must levy in each of its fiscal years an annual assessment
(the "Annual Assessment"), against each Lot. The amount of such Annual Assessment
shall be established by the Board of Directors, subject to the limitations imposed by Section
5.4, below, and written notice of such shall be sent to every Owner at least thirty (30) days
in advance of the commencement of each Annual Assessment period. The Annual
Assessment shall become applicable as to all Lots (as shown on a recorded subdivision
plat) on the first day of the month following the fITst conveyance of a Lot to an Owner who
is not the Declarant. The first Annual Assessment shall be adjusted according to the
number of months remaining in the calendar year.
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(b) The amount of the Annual Assessment shall be determined by the Board of
Directors according to its estimate of the cost of providing services or rights of use which
are common to all of the Lots.
Section 5.4. Basis and Maximum Annual Assessment. Until January 1 of the year
immediately following conveyance of the first Lot to an Owner other than the Declarant, the
maximum Annual Assessment shall be Six Hundred Dollars ($600.00).
(a) Prom and after January 1 of the year immediately following the first
conveyance of a Lot to an Owner other than the Declarant, the maximum Annual
Assessment shall increase, effective January 1 of each year, without the need for a vote of
the Members, by an amount equal to (i) the anticipated increase in costs of insurance, taxes,
snow removal, recycling, trash and waste removal, plus (ii) an amount equal the amount of
the prior year's Annual Assessment times ten percent, (10%).
(b) The Board of Directors may determine not to increase the maximum Annual
Assessment to the full extent of the automatic increase provided by subparagraph (a) of this
Section, in which case the Board of Directors may determine to increase the Annual
Assessment by any lesser amount.
(c) From and after January 1 of the year i~ediately following the first
conveyance of a Lot to an Owner other than the Declarant, the maximum Annual
Assessment may be increased above that established by subparagraph (a) annually,
provided that, to be effective, any such change shall have the assent of more than fifty
percent (50%) of the votes of each class of Members who are entitled to vote and who are
voting in person or by proxy at a meeting duly called for this purpose at which a quorum is
present, written notice of which (setting forth the purpose of the meeting) shall be sent to all
Members not less than thirty (30) days nor more than sixty (60) days in advance of the
meeting.
Section 5.5. Special Assessments. In addition to the Annual Assessment authorized
above, the Association may levy, in any assessment year, a special assessment applicable to that
year only for the purpose of defraying, in whole or in part, the cost of any construction,
reconstruction, repair or replacement of capital improvements upon the Common Area, including
the fixtures and personal property related thereto, or for any other specified purpose (the "Special
Assessment"). Any such Special Assessment shall be levied against all of the Lots which benefit
from the construction, reconstruction, repair or replacement of capital improvements giving rise to
the Special Assessment, pro rata according to each Lots benefit, as reasonably determined by the
Board of Directors, which determination shall be final. The amount of the Special Assessment
shall be the same for each Lot. To be effective, any such assessment shall have the assent of more
than two-thirds (2/3) of the votes of each class of Members who are entitled to vote and who are
voting in person or by proxy at a meeting duly called for this purpose at which a quorum is present,
written notice of which setting forth the purpose of the meeting having been sent to all members not
less than thirty (30) days nor more than sixty (60) days in advance of the meeting.
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Section 5.6. Ouorum for any Action Authorized Under Sections 5.4 or 5.5. At the
first calling of a meeting under Section 5.4 or Section 5.5 of this Article, the presence at the
meeting of Members or proxies entitled to cast sixty percent (60%) of all the votes of each class of
Members shall constitute a quorum. If the required quorum does not exist at any such meeting,
another meeting may be called subject to the notice requirements set forth in Section 5.4 and
Section 5.5 and to applicable law, and the required quorum at any such subsequent meeting shall be
one-half (1/2) of the required quorum at the preceding meeting. No such subsequent meeting shall
be held more than sixty (60) days following the preceding meeting.
Section 5.7. Working Capital Assessment. In addition to the Annual and Special
Assessments authorized above, the Association shall establish and maintain a working capital fund.
At each settlement on the initial sale and re-sale, by a Declarant of a Lot for which a residential use
permit has been issued, the purchaser of such Lot shall pay to the Association a working capital
assessment in an amount equal to one-sixth (1/6th) of the Annual Assessment for said Lot.
Section 5.8. Rate of Assessment. The Annual Assessment i>hall be fixed at a uniform
rate for all Lots, except for unoccupied Lots owned by the Declarant, and the Special Assessments
shall be fixed at a uniform rate for all Lots within a particular Section, except for unoccupied Lots
owned by the Declarant. Any unoccupied Lots owned by the Declarant shall be assessed at twenty-
five percent (25%) of the rate of Lots within the same Section but not owned by the Declarant. As
long as the Declarant retains the right to pay only partial assessments for its unoccupied Lots in any
Section, the Declarant must maintain such Lots and must fund all budget deficits, including
reserves, applicable to such Section, up to the amount the Declarant would have paid had it been
assessed at the full rate. The Declarant's obligation under this Section does not include any
expenses that the Association is unable to meet because of non-payment of any Owner's
assessment or because of unusual or extraordinary expenses.
Section 5.9. Notice of Assessment and Certificate. Written notice of the Annual
Assessments and any Special Assessments shall be sent to every Member. The due dates for
payment of the Annual Assessments and any Special Assessments shall be established by the Board
of Directors. The Association shall, upon demand at any time, furnish a certificate in writing
signed by an officer or authorized agent of the Association setting forth whether the assessments on
a specified Lot have been paid. A reasonable charge may be made by the Board for the issuance of
these certificates. Such certificates shall be conclusive evidence of payment of any assessment
therein stated to have been paid.
Section 5.10. Remedies of the Association in the Event of Default. If any assessment
pursuant to this Declaration is not paid within thirty (30) days after its due date, the assessment
shall bear interest from the date of delinquency at the rate charged by the Internal Revenue Service
on delinquent taxes. In addition, in its discretion, the Association may:
(a) impose a penalty or late charge as previously established by rule;
(b) bring an action at law against the Owner personally obligated to pay the
same and/or foreclose the lien against the Lot, and interest, costs and reasonable attorneys'
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fees of any such action shall be added to the amount of such assessment. A suit to recover a
money judgment for nonpayment of any assessment levied pursuant to this Declaration, or
any installment thereof, may be maintained without perfecting, foreclosing or waiving the
lien provided for herein to secure the same;
(c) suspend a Member's voting rights, right to hold an office within the
Association, and right to use nonessential services offered by the Association to the extent
that access and the provision of utilities to the Lot through the Common Area are not
precluded. An Owner, whose rights have been suspended in this manner, shall have no
right to any refund or suspension of his, her or its obligations to pay such assessments for
the duration of such suspension or otherwise; and
( d) accelerate the due date of the unpaid assessment so that the entire balance
shall become immediately due, payable and collectible.
No Owner may waive or otherwise escape liability for the assessments provided for herein
by non-use of the Common Area or facilities, abandonment of its Lot, or the failure of the
Association or the Board of Directors to perform their duties.
Section 5.11. Subordination of the Lien to Mortga~es. The lien for the assessments
provided for herein shall be subordinate to the lien of any properly recorded fust mortgage or deed
of trust encumbering a Lot. Notwithstanding anything contained in this Section 5.11 or elsewhere
in this Declaration, any sale or transfer of a Lot to a Mortgagee pursuant to a foreclosure of its
mortgage or conveyance in lieu thereof, or a conveyance to any person at a public sale in the
manner provided by law with respect to mortgage foreclosures, shall extinguish the lien of any
unpaid assessments (or periodic installments, if applicable) which became due prior to such sale,
transfer or conveyance; provided, however, that the extinguishment of such lien shall not relieve the
prior Owner from personal liability therefore. No such sale, transfer or conveyance shall relieve the
Lot, or the purchaser thereof at such foreclosure sale, or the grantee in the event of conveyance in
lieu thereof, from liability for any assessments (or periodic installments of such assessments, if
applicable) thereafter becoming due or from the lien for such assessments.
Section 5.12. Exempt Property. The following property subject to this Declaration shall
be exempt from the assessments created herein: (a) all property dedicated to and accepted by a
local public authority; and (b) the Common Area; however, no developed or undeveloped Lot, land
or improvements devoted to dwelling use shall be exempt from said assessments.
Section 5.13. Reserves for Replacements. The Association shall establish and maintain
a reserve fund for the maintenance, repair and replacement of the Common Area and improvements
located thereon by the allocation and payment to such reserve fund o.f an amount to be designated
from time to time by the Board of Directors, which reserve fund shall be sufficient, in the sole
opinion of the Board of Directors, to accommodate such future maintenance, repair and
replacement and which shall be a component of the Annual Assessment. Such fund shall be
conclusively deemed to be a common expense of the Association and may be deposited with any
banking institution, the accounts of which are insured by any state or by any agency of the United
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States of America or may, in the discretion of the Board of Directors, be invested in obligations of,
or fully guaranteed as to principal by, the United States of America. The reserve for replacement of
the Common Area may be expended only for the purpose of effecting the replacement of the
Common Area, major repairs to, replacement and maintenance of any improvements within the
Common Area, including but not limited to sidewalks, parking areas, landscape improvements,
street or common area lighting, streets or roadways developed as a part of the Property, equipment
replacement, and for start-up expenses and operating contingencies of a nonrecurring nature
relating to the Common Area. The Association may establish such other reserves for such other
purposes as the Board of Directors may from time to time consider to be necessary or appropriate.
The proportional interest of any Member in any such reserves shall be considered an appurtenance
of the Member's Lot and shall not be separately withdrawn, assigned or transferred or otherwise
separated from the Lot to which it appertains and shall be deemed to be transferred with such Lot.
ARTICLE VI
RESTRICTIVE COVENANTS
Section 6.1. Residential Use. The Property shall be used exclusively for residential
purposes except as provided in Section 6.19 hereof. The Declarant reserves the right, pursuant to a
recorded subdivision or re-subdivision plat, to alter, amend, and change any Lot line or subdivision
plan or plat. No building shall be erected, altered, placed or permitted to remain on any Lot other
than one Dwelling Unit and appurtenant structures, approved by the Association and appropriate
Local Governing Authorities, for use solely by the occupant of the Dwelling Unit.
Section 6.2. Architectural Review Board Approval. No Structure (as herein defined)
or addition to a Structure shall be erected, placed, painted, altered or externally modified or
improved on any Lot until the plans and specifications, including design, elevation, material, shape,
height, color and texture, and a site plan showing the location of all improvements with grading
modifications, shall be filed with and approved in vvriting by the Architectural Review Board, and,
if required, by appropriate Local Governing Authorities and, where required, appropriate
construction permits obtained. As used herein, the term "Structure" shall include, but not be
limited to, any building or portion thereof, including, without limitation, walls, decks, patios, stairs,
windows, window boxes, doors, fences, play equipment, greenhouses, skylights, address markers,
mail boxes, name plates, flag poles, lawn ornaments, trees, hedges, shrubbery, solar.panels, satellite
dishes, antennae, shutters, awnings, fences, pools, hot-tubs, pavement, walkways, driveways,
garages and/or garage doors, or appurtenances to any of the aforementioned.
Section 6.3. Laundrv. No clothing, laundry or wash shall be aired or dried on any
portion of the Property within public view.
Section 6.4. Si~ht Lines. No fence, wall, tree, hedge or shrub shall be maintained in
such a manner as to obstruct sight lines for vehicular traffic.
Section 6.5. Lot Maintenance. An Owner shall, at all times, maintain its Dwelling Unit
and all appurtenances thereto in good repair and in a state of neat appearance from all exterior
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vantage points. An Owner whose lawn area has been damaged by wear or weather conditions will
exercise reasonable and good faith efforts to repair the damage with new sod or by overseeding,
aerating, fertilizing and watering in an effort to maintain well groomed lawn areas. Prior to
landscaping any Lot (other than perennial flowers within approved flower beds), the Owner of such
Lot must submit a written landscape plan to the Architectural Review Board for its review and
approval or disapproval. The Owner shall not be permitted to remove any trees or shrubs on the
Lot without the approval of the Architectural Review Board, except as may be ordered by Local
Governing Authorities or by the Architectural Review Board to maintain proper sight lines. No
approval for removal of any trees or shrubs will be granted by the Architectural Review Board
unless appropriate provisions are made for replacing the removed trees or shrubs.
Section 6.6. Nuisance. No noxious or offensive activity shall be carried on upon the
Property, nor shall anything be done or placed thereon which is or may become an annoyance or
nuisance to the neighborhood. No exterior lighting on a Lot shall be directed outside the
boundaries of the Lot.
Section 6.7. Signs. The only signs permitted on the Property shall be customary home
and address signs and real estate sale or lease signs which have received the prior written approval
of the Architectural Review Board ("Permitted Signs"). No more than one (1) Permitted Sign
shall be displayed to public view on any Lot and must be less than or equal to two (2) square feet in
total surface area and may not be illuminated. All Permitted Signs advertising the property for sale
or rent shall be removed within three (3) days from the date of the conveyance of the Lot or of the
execution of the lease agreement, as applicable.
Section 6.8. Animals. No domesticated or wild animal shall be kept or maintained on
any Lot, except for common household pets such as dogs and cats which may be kept or
maintained, provided that they are not kept, bred or maintained for commercial purposes and do not
create a nuisance or annoyance to surrounding Lots or the neighborhood and are kept in compliance
with applicable laws and ordinances of the Local Governing Authority. Pets will not be permitted
outside of a Dwelling Unit unless on a leash and any Owner walking a pet within the Community
or on any Common Area will immediately clean up any solid animal waste and properly dispose of
the same. Law enforcement and animal control personnel shall have the right to enter the Property
to enforce local animal control ordinances.
Section 6.9. Trash Stora~e. Trash shall be collected and stored in trash receptacles only
and not solely in plastic bags. Trash and garbage receptacles shall not be permitted to remain in
public view and shall remain inside of each O\Vller's garage except on days of trash collection,
except those receptacles designed for trash accumulation located in the Common Area. No
accumulation or storage of litter, new or used building materials, or trash of any kind shall be
permitted on the exterior of any Dwelling Unit.
Section 6.10. Antennae Svstems. To the extent not inconsistent with federal law, exterior
television and other antennae, including satellite dishes, are prohibited, unless approved in writing
by the Architectural Review Board. The Architectural Review Board shall adopt rules for the
installation of such antennae and/or satellite systems, which rules shall require that antennae and
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satellite dishes be placed as inconspicuously as possible and only when fully screened from public
view on the rear and above the eave line of any Dwelling Unit. Satellite dishes will not exceed 18
inches in diameter. It is the intent of this provision that the Architectural Review Board shall be
able to strictly regulate exterior antennae and satellite dishes to the fullest extent of the law and
should any regulations adopted herein or by the Architectural Review Board conflict with federal
law, such rules as do not conflict with federal law shall remain n full force and effect.
Section 6.11. Painting. No person shall paint the exterior of any building, or portion
thereof, a color different than the original color of said building or portion thereof without the
proposed color having been first approved in writing by the Architectural Review Board and the
Association. All Dwelling Units in the Community will, at all times, be painted in a uniform color,
without variation.
Section 6.12. Finished Exteriors. The exteriors of all Structures, including, without
limitation, walls, doors, windows and roofs, shall be kept in good maintenance and repair. No
Structure shall be permitted to stand with its exterior in an unfinished condition fo~ longer than six
(6) months after the commencement of construction. In the event of fITe, windstorm or other
damage, the exterior of a Structure shall not be permitted to remain in a damaged condition for
longer than three (3) months, unless expressly excepted by the Board in writing.
Section 6.13. Fences. Except for any wrought iron fencing installed by the Developer on
any Lot or in any Common Areas, no fence or similar enclosure shall be erected or built on any Lot.
Section 6.14. Vehicles. No inoperable, junk, unregistered or unlicensed vehicle shall be
kept on the Property. No portion of the Property shall be used for the repair of a vehicle.
Section 6.15. Commercial Vehicles. No commercial or industrial vehicle, such as but not
limited to moving vans, trucks, tractors, trailers, vans, wreckers, tow trucks, hearses and buses,
shall be regularly or habitually parked or parked overnight on the Property, except upon the prior
written approval of the Architectural Review Board.
Section 6.16. Recreational Vehicles. No recreational vehicles or equipment, such as but
not limited to boats, boating equipment, jet-skis, wave runners, travel trailers, camping vehicles or
camping equipment shall be parked on the Property without the prior, written approval of the
Architectural Review Board, as to location, size, screening and other relevant criteria. The
Association shall not be required to provide a storage area for these vehicles.
Section 6.17. Towin2:. The Board of Directors shall have the right to tow any vehicle
parked or kept in violation of the covenants contained within this Article, upon twenty-four (24)
hours' notice and at the vehicle owner's sole expense.
Section 6.18. Gara2:e Usa!!e. Any conversion of any garage that will preclude the parking
of vehicles within that garage is prohibited. Owner's shall keep their garages at all times in a
manner that will permit the usage of such garage for parking of passenger automobiles, vans and/or
trucks.
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Section 6.19. Rental Agreements. Any rental agreement for a Dwelling Unit must be for
an initial period of at least six (6) months, must be in writing and must be subject to the rules and
regulations set forth in this Declaration and in the other Association documents. Every such rental
agreement must include a provision stating that any failure by the tenant, its household members or
guests, to comply with the terms of this Declaration shall be a default under the rental agreement,
and the Owner shall be responsible for enforcing that provision.
Section 6.20. Initial Construction and Marketing. The Declarant or its assigns may,
during its construction and/or sales period, erect, maintain and operate real estate sales and
construction offices, model homes, displays, signs and special lighting on any part of the Property
and on or in any building or Structure now or hereafter erected thereon and shall not be bound by
the provisions of this Article to the extent application thereof would delay, hinder or increase the
cost of construction and/or marketing of Dwelling Units for sale in the Community.
Section 6.21. Holiday and Seasonal Decorations. Any holiday or seasonal decorations
or ornamentation that is placed on the exterior of a Dwelling Unit or Structure, or that is otherwise
visible from the exterior of such Dwelling Unit or Structure, shall be fIrst approved by the
Architectural Review Board.
Section 6.22. Window Boxes. No window boxes containing flowers or any other
vegetation shall be erected or attached to any Dwelling Unit.
Section 6.23. Dusk to Dawn Coach Lights. Each Owner shall maintain any and all
coach lights installed as a part of the initial construction of each Dwelling Unit in good order,
condition and repair, including, without limitation, any necessary repairs or maintenance as may be
required for the effective operation of all "dusk to dawn" photocell switches and replacement of
light bulbs so that those coach lights remain continuously operational from dusk to dawn.
Section 6.24. Additional Rules and Regulations. The Association shall have the
authority to adopt such rules and regulations regarding this Article as it may from time to time
consider necessary or appropriate.
ARTICLE VII
ARCHITECTURAL REVIEW BOARD
Section 7.1. The Architectural Review Board. As used herein, the term "Architectural
Review Board" will mean and refer to a group of individuals who will administer the duties
described in Section 7.4, below. During the Committee Period, as herein defined, the Architectural
Review Board will consist of two (2) committees: (i) the "New Construction Committee" and
the "Modification and Change Committee." Upon expiration of the Committee Period, these
committees will be dissolved and the Architectural Review Board will not be divided into
committees. For purposes of this Declaration, the term "Committee .Period" will mean and refer
to the period of time during which the Declarant owns at least one (1) Lot in the Development.
14
Nothing contained in this Declaration or in the Articles of Incorporation or By-Laws of the
Association will prohibit an individual from serving on both committees simultaneously, however,
membership on anyone committee will not entitle any individual to also be a member of the other
committee. Likewise, nothing contained herein will require the appointment of an individual to
either such committee simply because that individual is also a member of the other committee
described herein.
The New Construction Committee shall consist of three (3) members who are appointed by
the Declarant. The Modification and Change Committee shall consist of a number of members
equivalent to the number of members of the Board of Directors of the Association and will consist
of the individuals who are members of the Board of Directors of the Association. Upon expiration
of the Committee Period and dissolution of the New Construction Committee and the Modification
and Change Committee, the rights and responsibilities of each such committee hereunder will
simply be administered by the Architectural Review Board. Upon expiration of the Committee
Period, the individuals who are members of the Board of Directors of the Association will
automatically become members of the Architectural Review Board, without the need for any
previous member of either committee to submit any type of resignation or acknowledgement of the
termination of such committee. The term of membership for any member of the Architectural
Review Board will be coterminous with the term of that individual's membership on the Board of
Directors.
Section 7.2. Removal and Vacancies. Members of the New Construction Committee
may be removed by the Declarant at any time, with or without cause. The Declarant will fill any
vacancies on the New Construction Committee in the same manner that it has the right to initially
appoint members of the New Construction Committee, in its sole discretion. Individuals who are
members of the Modification and Change Committee may only be removed from that committee to
the extent that such individual is removed or otherwise ceases to be a member of the Board of
Directors of the Association. After the Committee Period, individuals who are members of the
Architectural Review Board may only be removed from that board to the extent that such individual
is removed or otherwise ceases to be a member of the Board of Directors of the Association.
Appointments to fill vacancies in unexpired terms (during the Committee Period) on the
Modification and Change Committee or (after the Committee Period) on the Architectural Review
Board, shall be made in the same manner as members are appointed or elected to the Board of
Directors of the Association.
Section 7.3. Officers. At the first meeting of the Modification and Change Committee
of the Architectural Review Board following each annual meeting of Members, the Modification
and Change Committee shall elect from among themselves a chairperson, a vice-chairperson and a
secretary who shall perform the usual duties of their respective offices.
Section 7.4. Duties. The Committees of the Architectural Review Board shall regulate
the external design and appearance of the Property and the external design, appearance and location
of the improvements thereon in such a manner so as to preserve and enhance property values and to
maintain harmonious relationships among Structures and the natural vegetation and topography in
15
the Community. During the Committee Period, the New Construction Committee shall regulate all
initial construction, development or improvements on the Property and the Modification and
Change Committee shall regulate all modifications and changes to existing improvements on the
Property. In furtherance thereof: the Architectural Review Board (acting through the designated
committees during the Committee Period and of its own accord after the Committee Period) shall:
(a) review and approve or disapprove written applications of Owners for
proposed alterations or additions to Lots;
(b) periodically inspect the Property for compliance with adopted, written
architectural standards and approved plans for alteration;
( c ) adopt and publish architectural standards subj ect to the confirmation of the
Board of Directors;
(d) adopt procedures for the exercise of its duties; and
( e ) maintain complete and accurate records of all actions taken by the
Architectural Review Board.
No request for approval by the Architectural Review Board or any committee thereof will be
reviewed or otherwise considered unless submitted in writing by the Owner requesting such
approval. Approval by the Architectural Review Board of a correctly filed application shall not be
deemed to be an approval by Local Governing Authorities nor a waiver of the applicant's
obligation to obtain any required approvals from any such Local Governing Authorities or to
otherwise comply with applicable local ordinances. No approval of the Architectural Review
Board or any committee thereof shall be effective unless in writing and signed by the members of
the Architectural Review Board or applicable committee whose approval is required hereunder.
Section 7.5. Failure to Act. Failure of the Architectural Review Board, any committee
thereof or the Board of Directors to respond to any request for approval, enforce the architectural
standards contained in this Declaration or to notify an Owner of noncompliance with architectural
standards or approved plans for any period of time shall not constitute a waiver by the Architectural
Review Board or the . Board of Directors of any provision of this Declaration requiring such
approval hereunder or otherwise prevent the Architectural Review Board or the Board of Directors
from enforcing this Declaration at any later date.
Section 7.6. Enforcement. Any exterior addition, change or alteration made without a
written application to, and approval of, the Architectural Review Board shall be deemed to be in
violation of this Declaration and may be required by the Board of Directors to be restored to its
original condition at the offending Owner's sole cost and expense.
Section 7.7. Appeal. Any aggrieved party may appeal a decision of the Architectural
Review Board to the Board of Directors by giving written notice of such appeal to the Association
or any director within twenty (20) days of the adverse ruling.
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ARTICLE VIII
EASEMENTS
Section 8.1. General Easement Rights. The Declarant hereby grants a blanket
easement to the Association, its directors, officers, agents and employees, to any manager
employed by or on behalf of the Association, and to all police, fITe, ambulance personnel and all
similar persons, to enter upon the Property in the exercise of the functions provided for by this
Declaration, Articles of Incorporation, By-Laws and rules of the Association, and in the event of
emergencies and in the performance of governmental functions.
Section 8.2. Limitation on General Easement Rights. When not an emergency
situation or a governmental function, the rights accompanying the easements provided for in
Section 8.1 of this Article shall be exercised only during reasonable daylight hours and then,
whenever practicable, only after advance notice to, any Owner or tenant directly affected.
Section 8.3. Encroachments. If any improvement on the Property now or hereafter
encroaches on any other portion of the Property by reason of (a) the original construction thereof by
the Declarant or its assigns, which shall include, but not be limited to, any party wall or driveway
which encroaches over a Lot's boundary line and any drainage of stormwater from roofs and
gutters, (b) deviations within normal construction tolerances in the maintenance, repair,
replacement or reconstruction of any improvement, or (c) the settling or shifting of any land or
improvement, an easement is hereby granted to the extent of any such encroachment for the period
of time the encroachment exists. The owner of the encroaching improvement shall also have an
easement for the limited purpose of maintenance of the encroaching improvement. This easement
does not relieve any Owner or any other person from liability for such Owner's or other person's
negligence or willful misconduct.
Section 8.4. Ingress Egress Easement. The Declarant, its agents and employees shall
have a right of ingress and egress over the Common Area as required for construction on and
development of the Property and otherwise as necessary over any internal roadways within the
Community for access, ingress and egress to and from such Owner's Dwelling Unit.
Section 8.5. Reservation of Ri2ht to Grant Future Easements. There is reserved to
the Declarant a right to grant non-exclusive easements over any Lot or Common Area for the
purposes of installing, repairing and/or maintaining utility lines of any sort, including but not
limited to storm drains and drainage swales, sanitary sewers, gas lines, electric lines and cables,
water lines, telephone lines, telecommunication lines and cables, and the like, and for any purpose
necessary for the Declarant or its assigns to obtain the release of any bonds posted with a
municipality, governmental agency or regulatory agency, and non-exclusive easements over the
Common Area to any municipal agency or private entity for any other purpose consistent with the
"open space" designation thereof. This right to grant easements shall automatically expire as to any
Lot or Common Area seven (7) years from the date of submission of such Lot or Common Area to
this Declaration.
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Section 8.6. Bonds and/or Dedication Requirements. There is reserved to the
Declarant an easement and the right to grant and reserve easements or to vacate or terminate
easements across all Lots and Common Area as may be required by any governmental agency or
authority or utility in connection with the release of improvement bonds or the acceptance of public
streets for state maintenance with respect to the Property.
Section 8.7. Easements for Corrective Work. There is reserved to the Declarant a non-
exclusive easement over all Lots and the Common Area for the purposes of correcting drainage,
regrading, maintenance, landscaping, mowing and erecting street intersection signs, directional
signs, temporary promotional signs, entrance features, lights and wall features, and for the purpose
of executing any of the powers, rights, or duties granted to or imposed on the Association herein.
This easement shall automatically expire as to any Lot seven (7) years from the date of submission
of such Lot to this Declaration.
ARTICLE IX
PARKING
Parking of any type of vehicle in any Common Area is prohibited. The Board of Directors
may promulgate such rules and regulations as it deems appropriate to regulate the use of any
Common Areas to permit temporary parking for purposes of loading and unloading passengers and
materials. Those rules and regulations may include the towing of any vehicles parked in violation
of this Declaration, with no notice of towing required and at the vehicle owner's sole expense.
Temporary parking of vehicles on adjacent public rights-of-way will be subject to applicable
limitations and fees imposed by the Local Governing Authorities.
ARTICLE X
PARTY WALLS
Section 10.1. General Rules of Law to Apply. Each wall which is built as a part of the
original construction of the Dwelling Units upon the Property and placed on the dividing line
between Lots shall constitute a party wall, and, to the extent not inconsistent with the provisions of
this Article, the general rules of law regarding party walls and liability for property damage due to
negligence or willful acts or omissions shall apply thereto.
Section 1 0.2. Sharin~ of Repair and Maintenance and Destruction by Fire or Other
Casualty. If any such party wall is damaged or destroyed by fIre or other casualty or by some
cause other than the act of one of the adjoining Owners, its agents, family, household or guests
(including ordinary wear and tear and deterioration from lapse of time), then in such event both
such adjoining Owners shall proceed forthwith to rebuild or repair the structural components of
such wall, sharing equally the cost thereof, and each individual Owner shall proceed forthwith to
rebuild or repair the non-structural components of such wall in proportion to their respective uses ofbthe party wall. Any and all such reconstruction and/or repairs shall be completed immediately to
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the extent that the failure to commence and/or complete such reconstruction and/or repairs would
result in an immediate risk to human health and/or safety. All other reconstruction and/or repairs
shall be completed within three (3) months following the casualty or other event that damaged or
destroyed such party wall, unless a longer period of time is approved of by the Association. If the
damage is of such a nature that it has resulted, or will (if left uncorrected) result in damage or
destruction of such party wall, the reconstruction and/or repairs will be completed within a
reasonable time, not exceeding six (6) months following the initial discovery of the condition. Any
and all such reconstruction and/or repair shall be made in complianc.e with all requirements of
Local Governing Authorities and otherwise in compliance with all applicable laws, to the same or
better condition as existed prior to such damage or destruction.
Section 10.3. Repairs for Dama~e Caused bv One Owner. If any such party wall is
damaged or destroyed through the act of one or more adjoining Owners, or their respective agents,
families, .households or guests (collectively the "Offending Parties"), whether or not such act is
negligent or otherwise culpable, so as to deprive another adjoining Owner of the full- use and
enjoyment of the wall, then the Owner(s) of the Dwelling Unites) from whence the Offending
Parties committed the act that caused the damage or destruction, shall forthwith proceed to rebuild
and repair the same, in the manner required under Section 10.2, above, without cost to the adjoining
Owner.
Section 10.4. Other Chan~es. In addition to meeting the other requirements of these
restrictive covenants and of any building code or similar regulations or ordinances, any Owner
proposing to modify, make additions to or rebuild its Dwelling Unit in any manner which requires
the extension or other alteration of any party wall shall fIrst obtain the written consent of the
adjoining Owner, whose consent shall not be unreasonably withheld. If the adjoining Owner has
not responded in writing to the requesting Owner within twenty-one (21) days of its receipt of any
such written request, given by registered or certified mail, return receipt requested, such consent of
the adjoining Owner shall be deemed received.
Section 10.5. Right to Contribution Runs with the Land. The right of any Owner to
contribution from any other Owner under this Article shall be appurtenant to the land and shall pass
to such Owner's successors in title.
Section 10.6. Dispute. In the event of a dispute between O-wners with respect to the repair
or rebuilding of a party wall or with respect to the sharing of the cost thereof, then upon written
request of one of such Owners addressed to the Association, the matter shall be submitted to the
Board of Directors, who shall decide the dispute.
ARTICLE XI
POWERS AND DUTIES OF THE ASSOCIATION
Section 11.1. Discretionarv Powers and Duties. The Association shall have the
following powers and duties which may be exercised in its discretion:
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(a) to enforce any covenants or restrictions which are imposed by the terms of
this Declaration or which may be imposed on any part of the Property. Nothing contained
herein shall be deemed to prevent the Owner of any Lot from enforcing any building
restriction in its own name. The right of enforcement shall not serve to prevent such
changes, releases or modifications of the restriction or reservations placed upon any part of
the Property by any party having the right to make such changes, releases or modifications
in the deeds, contracts, declarations or plats in which such restrictions and reservations are
set forth; and the right of enforcement shall not have the effect of preventing the assignment
of those rights by the proper parties wherever and whenever such right of assignment exists.
Neither the Association nor the Board of Directors shall have a duty to enforce the
covenants by an action at law or in equity if, in its or their opinion, such an enforcement is
not in the Association's best interest. The expenses and costs of any enforcement
proceedings shall be paid out of the general fund of the Association as herein provided for;
provided, however, that the foregoing authorization to use the general fund for such
_ enforcement proceedings shall not preclude the Association from collecting such costs from
the offending Owner;
(b) to provide such light as the Association may deem advisable on streets and
the Common Area and to maintain any and all improvements, Structures or facilities which
may exist or be erected from time to time on the Common Area;
(c) to build facilities upon the Common Area;
(d) to use the Common Area and any improvements, Structures or facilities
erected thereon, subject to the general rules and regulations established and prescribed by
the Association and subject to the establishment of charges for their use;
(e) to mow and re-sow or re-seed or re-sod lawn areas and fertilize lawn areas
within the Common Areas and on any Lot;
(f) to care for, spray, trim, protect, plant, replant and prune trees, shrubs and
other landscaping, maintenance and upkeep of the Common Area and to pick up and
remove from the Common Area all loose material, rubbish, filth and accumulation of
debris; and to do any other thing necessary or desirable in the judgment of the Association
to keep the Common Area in neat appearance and in good order, including, but not limited
to, cleaning the private streets and maintaining the gas street lights located in the Common
Areas;
(g) to arrange for plowing and/or removal of snow and ice on all Common
Areas, streets and public walks within the Community;
(h) to exercise all rights, responsibilities and control over any easements which
the Association may from time to time acquire, including but not limited to those easements
specifically reserved to the Association in the Article VIII herein;
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(i) to create, grant and convey easements and licenses upon, across, over and
under all Common Area, including but not limited to easements for the installation,
replacement, repair and maintenance of utility lines serving the Property;
G) to employ counsel and institute and prosecute such suits as the Association
may deem necessary or advisable, and to defend suits brought against the Association;
(k) to retain as an independent contractor or employee a manager of the
Association and such other employees or independent contractors as the Board deems
necessary, and to prescribe the duties of employees and scope of services of independent
contractors;
(I) to enter on any Lot to perform. emergency repairs or to do other work
reasonably necessary for the proper maintenance or protection of the Property;
(m) to enter (or have the Association's agents or employees enter) on any Lot to
repair, maintain or restore the Lot, all improvements thereon, and the exterior of the
Dwelling Unit and any other improvements located thereon if such is not performed by the
Owner of the Lot, and to assess the O,^,ner of the Lot the costs thereof, such assessment to
be a lien upon the Lot equal in priority to the lien provided for in Article V herein;
provided, however, that the Board of Directors shall only exercise this right after giving the
Owner written notice of its intent at least fourteen (14) days prior to such entry;
(n) to re-subdivide and/or adjust the boundary lines of the Common Area but
only to the extent such re-subdivision or adjustment does not contravene the requirements
of zoning and other ordinances applicable to the Property;
(0) to adopt, publish and enforce rules and regulations governing the use of the
Common Area and facilities and with respect to such other areas of responsibility assigned
to it by this Declaration, except where expressly reserved herein to the Members. Such
rules and regulations may grant to the Board of Directors the power to suspend a Member's
voting rights and the Member's right to use non-essential services for non-payment of
assessments and to assess charges against Members for violations of the provisions of the
Declaration or rules and regulations; and
(P) to declare the office of a member of the Board of Directors vacant in the
event such member shall be absent from three (3) consecutive regular meetings of the Board
of Directors.
Section 11.2. Mandatorv Powers and Duties. The Association shall exercise the
following powers, rights and duties:
(a) to accept title to the Common Area and to hold and administer the Common
Area for the benefit and enjoyment of the Owners and occupiers of Lots, and to cause the
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Common Area and facilities to be maintained in accordance with the standards adopted by
the Board of Directors;
(b) to transfer part of the Common Area to or at the direction of the Declarant,
for the purpose of adjusting boundary lines or otherwise in connection with the orderly
subdivision or development of the Property, but only to the extent such re-subdivision or
adjustment does not contravene the requirements of zoning and other ordinances applicable
to the Property;
(c) after the termination of the Class B membership, to obtain and maintain
without interruption liability coverage for any claim against a director or officer for the
exercise of its duties and fidelity coverage against dishonest acts on the part of directors,
officers, trustees, managers, employees or agents responsible for handling funds collected
and held for the benefit of the Association. The fidelity bond shall cover the maximum
funds that will be in the custody of the Association or its management agent at -any time
while the bond is in place. The fidelity bond coverage shall be in an amount as may be
determined to be reasonably prudent by the Board of Directors;
(d) to obtain and maintain without interruption a comprehensive coverage of
public liability and hazard insurance covering the Common Area and easements of which
the Association is a beneficiary, if available at reasonable cost. Such 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 Association or other
Owners. The scope of coverage shall include all coverage in kinds and amounts commonly
obtained with regard to projects similar in construction, location and use as determined by
the Board of Directors. Further, the public liability insurance must provide coverage of at
least $1,000,000.00 for bodily injury and property damage for any single occurrence;
(e) to provide for the maintenance of any and all (i) improvements, Structures or
facilities which may exist or be erected from time to time on the Common Area, including
but not limited to street lights (including the payment of utility costs therefor), recreational
facilities, entrance features, entrance ways, entrance areas, stormwater management
facilities, including sand filters, retaining walls and sound walls, (ii) easement areas of
which the Association is the beneficiary and for which it has the maintenance responsibility,
(iii) facilities, including but not limited to fences and signs authorized by the Association
and erected on any easements granted to the Association, and (iv) street lights that may be
constructed within the rights-of-way of any public streets within or adjacent to the Property,
including those, if any, required to be maintained by Local Governing Authorities
(including the payment of utility costs therefor);
(f) to pay all proper bills, taxes, charges and fees on a timely basis;
(g) to maintain its corporate status; and
22
(h) to maintain all private streets, open space and landscaping within the
Common Area.
Section 11.3. Board Authority to Act. Unless otherwise specifically provided in the
Association's documents, all rights, powers, easements, obligations and duties of the Association
may be performed by the Board of Directors. Notwithstanding anything to the contrary contained
herein, any rules or regulations which are promulgated by the Board may be repealed or amended
by a majority vote of the Members cast, in person or by proxy, at a meeting convened for such
purpose in accordance with the By-Laws.
Section 11.4. Compensation. No director or officer of the Association shall receive
compensation for services as such director or officer except to the extent expressly authorized by a
majority vote of the Class A Members.
. Section 11.5 Non-liability of Directors~ Officers and Board Members. The-directors
and officers of the Association and members of the Architectural Review Board shall not be liable
to the Owners or any other persons for any error or mistake of judgment in carrying out their duties
and responsibilities as directors or officers of the Association or members of the Architectural
Review Board, except for their own individual willful misconduct or gross negligence. It is
intended that the directors and officers of the Association and members of the Architectural Review
Board shall have no personal liability with respect to any contract made by them on behalf of the
Association except in their capacity as Owners.
Section 11.6. Indemnity of Directors and Officers and Members of the Architectural
Review Board. The Association shall indemnify, hold harmless and defend any person, his or her
heirs, assigns and legal representatives (collectively, the "Indemnitee") made or threatened to be
made a party to any action, suit or proceeding by reason of the fact that he or she is or was a
director or officer of the Association or member of the Architectural Review Board, against all
costs and expenses, including attorneys fees, actually and reasonably incurred by the Indemnitee in
connection with the defense of such action, suit or proceeding, or in connection with any appeal
thereof: except in relation to matters as to which it shall be adjudged in such action, suit or
proceeding that such Indemnitee is guilty of gross negligence or willful misconduct in the
performance of his or her duties. The Association shall also reimburse any such Indemnitee for the
reasonable costs of settlement of or for any judgment.rendered in any action, suit or proceeding,
unless it shall be adjudged in such action, suit or proceeding that such Indemnit~e was guilty of
gross negligence or willful misconduct. In making such findings and notwithstanding the
adjudication in any action, suit or proceeding against an Indemnitee, no director or officer or
member of the Architectural Review Board shall be considered or deemed to be guilty of or liable
for gross negligence or willful misconduct in the performance of his or her duties where, acting in
good faith, such director, officer or member of the Architectural Review Board relied on the books
and records of the Association or statements or advice made by or prepared by any managing agent
of the Association or any director or officer of the Association, or any accountant, attorney or other
person, firm or corporation employed by the Association to render advice or service, unless such
director or officer had actual knowledge of the falsity or incorrectness thereof; nor shall a director
be deemed guilty of gross negligence or willful misconduct by virtue of the fact that he or she failed
23
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(xiv) termination of the legal status of the Association after substantial
destruction or condemnation of the subdivision occurs.
An addition or amendment to this Declaration or related Association documents shall not be
considered material if it is for the purpose of clarification or correcting errors. A Mortgagee who
receives a written request to approve additions or amendments who does not deliver or post to the
requesting party a negative response within thirty (30) days of receipt of such request shall be
deemed to have approved such request.
Section 12.5. General.
(a) Condemnation. In the event that there is a condemnation or destruction of
the Common Area or other Association property, to the extent practicable, condemnation or
insurance proceeds shall be used to repair or replace the condemned or destroyed property.
(b) Unpaid Assessments. Any Mortgagee, who obtains title to a Lot pursuant
to the remedies provided in its mortgage or deed of trust or foreclosure of the mortgage or
deed of trust or deed in lieu of foreclosure, will not be liable for such Lot's unpaid dues or
charges which accrue prior to the acquisition of title to the Lot by the Mortgagee.
(c) Books and Records. A Mortgagee shall have the right to examine and copy
at its expense the books and records of the Association during normal business hours and
upon reasonable notice to the Association.
(d) Notice. As set forth in this Article, Mortgagees shall have the right, upon
request, to receive notice of (a) the decision of the Owners to abandon or terminate the
Planned Unit Development (as defined by Fannie Mae); (b) any material amendment to the
Declaration, the By-Laws or the Articles of Incorporation; and (c) if professional
management has been required by a Mortgagee, the decision of the Association to terminate
such professional management and assume self-management.
(e) Excess Proceeds. Should there be excess insurance or condemnation
proceeds after the renovation, repair or reconstruction called for herein, such excess
proceeds may be distributed equally to the Owners, apportioned equally by Lot; subject,
however, to the priority of a Mortgagee with regard to the proceeds applicable to the Lot
securing said Mortgagee and in accordance with Indiana law.
(f) Audited Financial Statement. The Association must provide an audited
financial statement for the preceding fiscal year to a Mortgagee upon its written request.
(g) Termination. Eligible Mortgagees representing at least sixty-seven percent
(67%) of the votes of the mortgaged Lots must consent to the termination of the legal status
of the Association for reasons other than substantial destruction or condemnation of the
Property .
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(h) Damag:e to Common Area. The Association shall cause the immediate
repair, reconstruction or renovation of any damage to the Common Area unless a decision
not to repair, reconstruct or renovate is approved by a majority of the Mortgagees.
ARTICLE XIII
GENERAL PROVISIONS
Section 13.1. Enforcement. The Association or any Owner shall have the right to
enforce, by a proceeding at law or in equity, all restrictions, conditions, covenants, reservations,
easements, liens and charges now or hereafter imposed by the provisions of this Declaration or
other Association documents unless such right is specifically limited. Failure by the Association or
by any Owner to enforce any right, provision, covenant or condition which may be granted by this
Declaration shall not constitute a waiver of the right of the Association or an Owner to enforce such
right, provision, covenant or condition in the future. All rights, remedies and privileges granted to
the Association or any Owner pursuant to any term, provision, covenant or condition of the
Declaration shall be deemed to be cumulative and the exercise of anyone or more thereof shall not
be deemed to constitute an election of remedies nor shall it preclude the party exercising the same
from exercising such privileges as may be granted to such party by this Declaration or at law or in
equity.
Section 13.2. Severability: Headin!!s: Conflict. Invalidation of anyone of the provisions
of this Declaration by judgment or court order shall in no way affect any other provision, which
shall remain in full force and effect. Titles of paragraphs are for convenience only and are not
intended to limit or expand the covenants, rights or obligations expressed therein. In the case of
any conflict between the Articles of Incorporation and this Declaration, the Articles of
Incorporation shall control; in the case of any conflict between this Declaration and the By-Laws,
this Declaration shall control.
Section 13.3. Duration. The covenants and restrictions of this Declaration shall run with
and bind the Property and shall inure to the benefit of and be enforceable by the Association or the
Owner of any Lot subject to this Declaration, their respective legal representatives, heirs, successors
and assigns, unless such right is specifically limited, for a term of twenty (20) years from the date
this Declaration is recorded, after which time the covenants and restrictions of this Declaration shall
be automatically extended for successive periods of twenty (20) years each, unless terminated by a
written and recorded instrument approved of in advance by the affirmative and unanimous vote of
all Members of the Association and their respective Mortgagees.
Section 13.4. Material Amendment/Extraordinary Action.
(a) Approval Requirements. In accordance with Federal Agencies'
requirements, material amendments ("Material Amendments") or extraordinary actions
("Extraordinary Actions") must be approved by Members entitled to cast at least sixty-
seven percent (67%) of the votes of Members present and voting, in person or by proxy, at a
meeting held in accordance with the notice and quorum requirements for Material
29
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conveyed meeting, or in writing by Members entitled to cast at least sixty-seven percent (67%) of
the total authorized votes of all Members.
Any amendment must be properly executed and acknowledged by the Association (in the
manner required by law for the execution and acknowledgment of deeds) and recorded among the
appropriate land records.
Section 13.6. Special Amendment. Notwithstanding anything herein to the contrary, the
Declarant may unilaterally amend this Declaration for any reason prior to the fIrst conveyance of a
Lot to an Owner other than the Declarant and thereafter may make any amendment required by any
of the Federal Agencies or by the Local Governing Authorities, as a condition of the approval of
this Declaration, by the execution and recordation of such amendment following notice to all
Members.
Section 13.7. Waiver. The Declarant, as the present most interested party in maintaining
the high quality of development which by these covenants is sought to be assured for the Property,
hereby expressly reserves unto itself (so long as these restrictions are in effect), the unqualified
right to waive or alter from time to time such of the herein contained restrictions as it may deem
best, as to anyone or more of the Lots, which waiver or alteration shall be evidenced by the mutual
written consent of the Declarant and the then-Owner of the Lot as to which some or all of said
restrictions are to be waived or altered; such written consent to be duly acknowledged and recorded
in the Office of the Recorder of Hamilton County, Indiana.
Section 13.8. Annexation of Additional Propertv. The Association may annex
additional areas and provide for maintenance, preservation and architectural control of Lots and
Common Area within such areas, and so may add to its membership under the provisions of Article
II herein, with the written consent of more than fifty percent (50%) of each class of Members. Any
future improvements on the annexed property must be consistent with or better than the initial
improvements on the Property in terms of quality, design and construction and comparable in style,
size and cost.
Section 13.9. Casualtv Insurance. Notwithstanding anything to the contrary contained
in this Declaration, each and every Owner shall maintain a casualty insurance policy affording
fire and extended coverage insurance insuring the Dwelling Unit in an amount equal to the full
replacement value of the improvements which in whole or in part, comprise the Dwelling Unit,
including, without limitations any Party Walls. Each Owner of each Lot and/or Dwelling Unit,
(regardless of whether or not its ownership is encumbered or is to be encumbered by a mortgage,
deed of trust or similar indenture) will furnish to the Association, at or prior to the closing of its
acquisition of that Lot or Dwelling Unit, a certificate of insurance, in form and content
acceptable to the Association, evidencing the insurance coverage described herein. Each such
Owner shall, prior to the expiration of the term of any such insurance policy, procure and deliver
to the Association a renewal or replacement policy in form and content acceptable to the
Association. If any such Owner fails to provide evidence of such coverage satisfactory to the
Association, the Association will have the right, but no obligation, to procure such coverage at
the expense of the applicable Owner, and the cost of procuring such insurance will be assessed to
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