HomeMy WebLinkAboutDeclaration: Covenants, Conditions and Retrictions " 199909955059
Filed for• Record in
HAMILTON COUNTY, INDIANA
MARY L CLARK
DECLARATION On 09-17-1999 At 01:50 p®.
OF DEC COV RES 66.00
COVENANTS, CONDITIONS AND RESTRICTIONS
FOR
THE OVERTURE
THIS DECLARATION (hereinafter called "the Declaration" or "this Declaration"),
.:11::.de this !uay of :1 -;--y.., Y'9 ,v Estr:civ nie opnient Cor;li any,
(hereinafter called "Declarant"),
WITNESSETH:
WHEREAS, Declarant is the owner of the real estate in Hamilton County, Indiana, more
particularly described in Exhibit "A" attached hereto and incorporated herein by reference
(hereinafter referred to as the "Real Estate"); and
WHEREAS, Declarant is in the process of creating on the Real Estate a residential
community to be known as The Overture; and -
WHEREAS, Declarant desires to provide for the preservation and enhancement of the
values and amenities in such community and the common facilities therein contained, and to
this end, Declarant desires to subject the Real Estate and each owner of all or part thereof to the''-
- terms of this Declaration, as hereinafter provided; and
WHEREAS, Declarant deems it desirable, for the efficient preservation of the values and
amenities in said community, to create an agency to which shall be delegated and assigned the
powers of owning, maintaining and administering the common facilities located on the Property
(hereinafter defined), administering and enforcing the covenants and restrictions contained in
this Declaration, collecting and disbursing the assessments and charges imposed and created
hereby and hereunder, performing certain maintenance, and repairs as hereinafter provided, and
promoting the health, safety and welfare of the owners of the Property, and all parts thereof;
and
WHEREAS, Declarant has caused, or will cause, to be incorporated under the laws of
the State of Indiana- a non-profit corporation under the name "The Overture Homeowners
Association, Inc.", or a similar name, as such agency for the purpose of exercising such
functions;
NOW, THEREFORE, Declarant hereby declares that the Property is and shall be held,
transferred, sold, conveyed, hypothecated, encumbered, leased, rented, used, improved and
occupied subject to the provisions, agreements, conditions, covenants, restrictions, easements,
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assessments, charges and liens hereinafter set forth, all of which are declared to be in
furtherance of a plan for preservation and enhancement of the Property, and are established and
agreed upon for the purpose of enhancing and protecting the value, desirability and
attractiveness of the Property as a whole and of each of the Lots situated therein, and which
shall run with the Property and be binding upon all parties having any right, title or interest in
the Property, their heirs, successors and assigns.
ARTICLE I
DEFIN1TIONS
Section 1 The following words, when used in this Declaration or any supplemental
declaration (unless the context shall prohibit), shall have the following meanings:
A. "Applicable Date" shall mean the "Applicable Date" as defined and determined in
accordance with Section 3B of Article III hereof.
B. "Association" shall mean The Overture Homeowners Association, Inc., an Indiana
nonprofit corporation which Declarant has caused, or will cause; to be incorporated under said
name or a similar name, its successors and assigns.
C. "Board" or "Board of Directors" shall mean the board of directors of the
Association.
D. "Common Area's"shall mean (i) those portions, if any, of the Property shown upon
any recorded subdivision plat of the Property, or any part thereof (including the initial Plat,
which are not Lots (reserving, however, unto Declarant the right to re-plat any of such areas as
part of one (1) or more Lots), other than portions thereof(such as streets) which are dedicated
to the public, whether such plat is heretofore or hereafter recorded, including all improvements
and structures constructed or to be constructed thereon, and (ii) such portions of the Property (if
any) as are hereafter declared to be "Common Area" by an instrument executed and recorded by
Declarant, whether or not such areas compnse part or all of a lot or lots shown upon any
recorded subdivision plat of the Property.
E. "Declarant" shall mean Estridge Development Company, Inc. and any successors
and assigns of Declarant who it designates in one or more written recorded instruments to have
. the rights of Declarant hereunder, including, but not limited to, any mortgagee acquiring title to
any portion of the Property pursuant to the exercise of nghts under, or foreclosure of (or by
acceptance of a deed in lieu of foreclosure of), a mortgage executed by Declarant; provided,
however, that any such mortgagee so acquiring title by virtue of foreclosure against (or
acceptance of a deed in lieu of foreclosure from) the Declarant shall not be deemed to have
assumed any prior obligations or liabilities of the Declarant hereunder.
F. "Development" shall mean the improvement to the property as designated on the
Initial Plat.
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F. "Development Period" shall mean the period of time beginning with the date of
execution of this Declaration and ending with the date the Declarant is no longer the owner of
any part of the Property.
G. "Home" shall mean a residential housing unit designed or intended for use as living
quarters for one family or housekeeping unit.
H. "Initial Plat" shall mean the subdivision plat(s) of the Real Estate.
I. "Lot" shall mean and refer to any and each plot of land included in the, Property (with
the exception of Common Area) designed and intended for use as a building site for a Home, •
and identified as a lot on any recorded subdivision plat of the Property or any part thereof
(including the initial Plat).
J. "Members" shall mean any person or entity holding membership in the Association
as provided in Article III hereof.
K "Mortgage", shall' mean any mortgage or other security instrument by which a Lot
or any part thereof or any structure thereon is encumbered.
L. "Mortgagee" shall mean any person or entity named as the Mortgagee under any .
such Mortgage or any successors or assigns to the interest of such person or entity under such
Mortgage prior to acquisition of the fee simple title to the property encumbered by such
Mortgage. _
M. "Owner" shall mean the record owner, whether one or more persons or entities, of
the fee simple title to any Lot which is a part of the Property, including contract sellers, but
excluding those having such interest merely as security for the performance of an obligation.
N. "Person" whether appearing in upper case or lower case form, shall mean an
individual, fiiiii corporation, paltiiership, association, trust, or other legal entity, or any
combination thereof.
O. "Property" shall mean and refer to the Real Estate.
P. "Real Estate" shall mean the parcel or parcels of real estate in Hamilton County,
Indiana, described in Exhibit "A" attached to and incorporated in this Declaration.
Section 2. Other terms and words defined elsewhere in this Declaration shall have the
meanings herein attributed to them.
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ARTICLE II
PROPERTY SUBJECT TO THIS DECLARATION
Section 1. Declaration. Declarant hereby expressly declares that the Property shall be
held, transferred, sold, conveyed and occupied subject to all the terms, covenants, conditions,
restrictions and provisions of this Declaration. As of the date of execution of this Declaration,
the Property consists solely of the Real Estate. The Owner of any Lot at any time subject to this
Declaration, by (i) acceptance of a deed conveying title (hereto, or the execution of a contract
for the purchase thereof, whether from Declarant or a subsequent Owner of such Lot, or (ii) by
the act of occupancy of any Lot, shall accept such deed, execute such contract and undertake
such occupancy subject to all of the'terms, covenants, conditions, restrictions and provisions of
this Declaration. By acceptance of such deed, execution of such contract or undertaking such
occupancy, each Owner acknowledges the rights and powers of Declarant and of the
Association with respect to or under this,Declaration., and, for himself, his heirs, personal
representatives, successors and assigns; covenants, agrees and Consents to and with Declarant,
the Association, and the Owners and'subsequent Owners of each of the Lots affected by this
Declaration, to keep, observe, perform and comply with the teams and provisions of this
Declaration.
ARTICLE III
MEMBERSHIP AND VOTING RIGHTS IN ASSOCIATION
Section 1 Membership.:—Every Owner of a Lot, except as herein provided to the
contrary, shall be entitled and required to be a member of the Association. If title to a Lot is
held by more.than one person, each of such persons shall be a member. An Owner of more
than one Lot shall be entitled to, and there shall be required, one membership for each such lot.
Each such membership shall be appurtenant to the Lot upon which it is based and shall transfer
automatically by voluntary or involuntary conveyance of the title of that Lot. Except as herein
otherwise expressly provided, no person or entity other than an -Owner or Declarant may be a
member of the Association, and a membership in the Association may not be transferred except
in connection with the transfer of title.to a Lot.
Section 2: Transfer. A membership in the Association shall not be transferred, pledged
or alienated in any way, except upon the transfer of the record title of a Lot and then only to
such transferee, by assignment, intestate succession, testamentary disposition, foreclosure of
mortgage of record or other legal process. It shall be the responsibility of each Owner, upon
becoming entitled to membership, to so notify the Association in writing, and until so notified,
the Association may continue to carry the name of the former Owner as a member, in its sole
discretion. Any attempt to make a prohibited transfer is void and will not be reflected upon the
books and records of the Association. In the event the Owner of any Lot should fail or refuse to
transfer the membership registered in his name to the transferee of title of such Lot, the
Association may issue a new membership to the transferee, and thereupon the old membership
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outstanding in the name of the transferor'shall be null and void as though the same had been
surrendered.
Section 3 Voting. The Association shall have two (2) classes of voting membership, as
follows:
A. Class A. Class A members shall be all Owners of Lots, with the exception of the
Declarant prior to termination of Class B membership, and shall be entitled to
one( ) vote for each lot owned with respect to each matter submitted to a vote of
members upon which the Class A members are entitled to vote. When more than
one person holds title to any Lot, all such persons shall be members. The vote for
such Lot shall be exercised as :hey a mong themselves determine, but in no event
. - shall more than one vote be cast with respect to any one Lot. There can be no split
vote. Prior to or at the time of any meeting at which a vote is to be taken, each
co-owner or other person entitled to a vote at such meeting shall file with the
Secretary of the Association the name of the voting co-Owner or other person
entitled to a vote at such meeting, unless such co-Owner or other person has filed a
general voting authority with the Secretary applicable to all votes until rescinded.
B. Class B. Class B members shall be the Declarant and all successors and assigns of
the Declarant designated by the Declarant as Class B members in a written notice -
mailed or delivered to the resident agent of the Association. Each Class B member
shall be entitled, on all matters requiring a vote of the.membership of the
Association, to five (5) votes for each Lot owned by them or it and five (5) votes
for each single numbered parcel of land shown upon and identified as a Lot on any
• recorded plat of the Real Estate. The Class B membership shall cease and teuninate
upon the first to occur of(a) the date upon which the written resignation of the
Class B members as such is delivered to the resident agent of the Association; (b)
one hundred twenty (.120) days after ninety-five percent (95%) of the Lots in the
Property have been conveyed to Owners other than Declarant; (c) five (5) years
after the date of recording of the first conveyance of a Lot to an Owner other than
Declarant; (the applicable date being herein referred to as the "Applicable Date").
Declarant shall each be entitled to one (1) Class A membership for each Lot of
• which it is the Owner on or after the termination of the Class B membership.
Section 4. Suspension.of Voting Rights. In the event any Owner shall be in arrears in the
payment Of any amount due under any of the provisions of this Declaration for a period
• of thirty (30) days, or shall be in default in the performance of any of the terms of this
Declaration for a period of thirty (30) days, such Owner's right to vote as a member of
the Association shall be suspended and shall remain suspended until all payments are
brought current and all defaults remedied.
Section S. Board of Directors. Following the Applicable Date, the Owners shall elect a
Board of Directors of the Association as prescribed by the Association's Articles and
By-Laws. The Board of Directors shall manage the affairs of the Association. Until the
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Applicable Date, the Board shall consist of three (3) persons designated by Declarant
pursuant to the.Articles of Incorporation, as long as it shall own one or more lots.
ARTICLE IV
PROPERTY RIGHTS
Section 1. General Provisions.
A. All easements described in this Declaration are permanent easements appurtenant,
running with the land. They shall at all times inure to the benefit of and be binding on the
Owner and the Mortgagee from time to time of any Lots and the Owner and mor:gap-co. if any,
from time to time of the Common Area, and their respective heirs, successors, personal
representatives or assigns.
B. The covenants and restrictions contained in this Declaration shall run with and bind
the land and shall inure to the benefit of and be enforceable by the Declarant, the Association
or the Owner of any Lot subject to this Declaration, their respective personal representatives,
heirs, successors and assigns, for an initial term commencing on the date this Declaration is
recorded and ending January 1, 2018, after which time the covenants and restrictions shall be
• automatically renewed for successive periods of ten (10) years each, as the same may be
amended or modified as herein permitted and provided.
Section 2 Right of Enjoyment. Every Owner shall have a non-exclusive right and
easement of enjoyment in and to the Cpmmon Area limited, however, to and for the uses and
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purposes for which any portion of the Common Area is designed and intended. Such right and
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easement shall be appurtenant to and shall pass with the title to every Lot, subject to the
following provisions:
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A. The right of the Association to pass reasonable rules, with respect to the Common
Area, for the health, comfort, safety and welfare of persons using the same;
B. The right of the Association to suspend the voting rights of an Owner for any period
during which any assessment against his Lot remains unpaid, and for a period not to exceed
sixty (60) days for an infraction of its.published rules and regulations;
C. The right of the Association to levy assessments as provided in this Declaration; and
D. The rights of the Association and Declarant reserved under this Article IV or
elsewhere in this Declaration.
Section 3. Association's Rights.and Obligations
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A. The Association shall have the obligation to manage, repair, maintain, improve and
operate the Common Area and to perform all additional obligations described in this
Declaration.
B. The Association shall have the right to mortgage all or any portion of the Common
Area for the purpose of securing a loan of money to be used for any of the purposes specified in
subsection 3 A. hereinabove, provided that the rights of such mortgagee in the Common Area
shall be subordinate to the rights of the Owners under this Declaration, and provided, further,
that the rortga,ee shall have received the prior written approval specified hereinbelow.
C. The Association shall have the right to dedicate. or transfer all any part o thR
Comm ?on Area to any governmental subdivision or public agency or utility, and to grant
permits, licenses, and easements over the Common Area for utilities and other purposes
necessary or useful for,the proper maintenance or operation of the project, subject to any prior
written approval required herein below. The Association may enter into agreements on behalf
of the members for the providing of services and utilities to the property and/or the members so
long as the rates in such agreement(s) are at or below the prevailing market rate for such
services in the Greater Indianapolis area, such agreement does not solely benefit the Declarant
and in no way should the Board of Directors benefit through the contracts other than by the
favorable rates received.
D. The Property shall be subject to easements of record on the date the various portions
thereof become subject to this Declaration, and to any easements in the Common Area which
may at any time be=grantedby Declarant or the Association (subject to the approval referred to
in the preceding paragraph) to any public or private utilities or governmental bodies for the •
installation and maintenance of electrical and telephone conduit and lines, gas pipes, sewers or
water pipes, coaxial cable, or any other utility services serving any Lots or the Common Area.
E. Anything herein apparently to the contrary notwithstanding, except as otherwise
- expressly herein provided, no abandonment, partition, subdivision, encumbrance, sale or
transfer of the Common Area or other common property or any part thereof shall be effective
unless it shall have received the prior:written approval specified hereinbelow.
Section 4. Declarant's Rights. Declarant shall have the same rights as any other Owner
as to Lots owned by it from time to time except as otherwise specified herein. In addition,
until the last single numbered parcel of land shown upon, and identified as a lot on any
recorded plat(s) of the Real Estate (whether heretofore or hereafter recorded, including the
Initial Plat is conveyed to an Owner other than Declarant, or until the Applicable Date
(whichever event shall first occur), Declarant shall have the right and easement over the
Common Area for the completion of improvements and making repairs to improvements
(whether on the Common Area, or upon unsold Lots, or upon other portions of the Real Estate,
and the right to maintain signs upon the Common Area and any other portions of the Property
other than Lots owned by an Owner other than Declarant) for the purpose of marketing homes,
and to invite and escort the public thereon for such purpose.
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Section S. Non-Dedication to Public Uses. Nothing contained in this Declaration or in
any subdivision plat of any part of the Property shall be construed or be deemed to constitute a
dedication, express or implied, of any part of the Common Area to the public or to or for any
public use or purpose whatsoever, all of such Common Area being reserved to the Owners and
the Association as provided in this Declaration, but subject, however, to the rights of the
Association and the Declarant to thereafter dedicate portions of such Common Area to the
public or to or for public uses or purposes but only to the extent, and upon all of the conditions,
set forth in this Declaration.
Section 6. Easement for Uninte�7tional Encroachment. Notwithstanding anv other
provisions contained herein, in the event that any Home or any improvement to any Home
encroaches upon any part of the Common Area, as a result of construction, reconstruction,
repair, shifting, settlement or movement of any part of the Property, then a perpetual easement
appurtenant to such encroaching Home shall exist for the continuance of any such
encroachment on the Common Area.
Section 7. Title to Common Area. Declarant hereby covenants that it shall convey and
- transfer the Common Area included in and constituting a part of the Real Estate to the
Association prior to Declarant's resignation as a Class B member. The Common Area so
conveyed by Declarant to the Association shall, at the time of such conveyance, be subject to
all easements, covenants, conditions, limitations and restrictions then of record, but shall be
free and clear of all liens and financial encumbrances other than the lien of the then current
non-delinquent installment of real estate taxes and assessments and subsequent installments
thereof which shall thereafter be paid when due by the Association.
ARTICLE V
ASSESSMENTS
Section 1. Personal Obligations. Each Owner of a Lot, by acceptance of a deed or other
conveyance therefor, whether or not it shalll be so expressed therein, shall be and is deemed to
covenant and agree to pay to the Association: (a) annual assessments or charges, which shall be
payable in regular installments, for the payment or provision of all expenses of administration
of the Association, expenses for the upkeep, maintenance, repair and replacement of the
Common Area and all other.expenses incurred or to be incurred by the Association for or in
. connection with the performance by the Association of its duties, obligations and
responsibilities under this Declarati , which expenses may include, but shall not be limited to,
the expenses and costs of liability insurance for the Common Area and any other common
property; snow removal, and trash removal (if provided by the Association); street lighting (if
provided by the Association); and an adequate reserve fund for the periodic maintenance, repair
and replacement of those improvements--and elements of the Common Area and any other
property that must be maintained, repaired or replaced on a periodic basis and which the
Association may be obligated to maintain, and (b) special assessments for capital
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improvements, such assessments to be established and collected as hereinafter provided. Any
assessments authorized herein, together with interest, costs and reasonable attorneys' fees, shall
be a continuing lien from the first day of January (for annual assessments) and from the date the
first installment is payable (for special assessments) against the Lot assessed. Such annual
assessments shall be due and payable in a lump sum in advance of such twelve month periods
or if the Association so allows, in twelve (12) equal monthly installments on the first day of
each and every month or, if so determined by the Association, in such other periodic
installments as may be specified by the Association. Each assessment, together with interest,
costs and reasonable attorneys' fees, shall also be the personal obligation of the person who was
the Owner of such Lot on the date said assessment became due and payable. Said personal
obligation of an Owner shall not pass to his successors in 'title or interest uunless ss1
successors ,� -_:n less expt�.,,,_v
assumed by them or unless, prior to such transfer, a written notice of the lien for such
assessments shall have been recorded in the office of the Recorder of Hamilton County,
Indiana. No Owner shall escape liability for the assessments which fell due while he was the
Owner by reason of non-use of the Common Area or non-use, transfer or abandonment of his
Lot or Home.
Section 2. Purpose of Assessments The assessments levied by the Association shall be
used exclusively to promote the recreation, health, safety and welfare of the Owners and
residents of the Property, to construct, manage, improve, maintain, repair and administer the
Common Area and Amenities, and for''payment of any other costs and expenses incurred by the
Association in connection with the performance of its duties, obligations and responsibilities
hereunder. An,. adequate reserve fund shall be maintained for working capital- and for the
periodic maintenance, repair and replacement of those improvements and elements of the
Common Area, Amenities and any other property that must be replaced on a periodic basis.
Such reserve fund shall be maintained out of the regular annual assessments.
Section 3. Annual Assessments. Until December 31, 1999, the maximum annual
assessment shall be at the annual rate of Three.Hundred Eighty-Five Dollars (5350.00) per Lot.
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A. From and after December 31, 1999, the maximum annual assessments may be
increased each year not more than ten percent (10%) above the maximum assessments
permitted for the previous year, on a cumulative basis, without a vote of membership.
B. From and after December 31, 1998, the maximum annual assessments may be
increased by more than ten percent (10%) above the maximum assessments permitted for the
previous year by a vote of two-thirds (2/3) of the total votes of the Members who are voting in
person or by proxy, at a meeting called for this purpose.
C. The Board of Directors may fix the annual assessments at any amount not in excess
of the maximum permitted hereby.
Section 4. Special Assessments. In addition to the annual assessments authorized above,
the Association may levy, in any assessment year, a special assessment applicable to that year
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only for the purpose of defraying, in whole or in part, the cost of any construction,
reconstruction, repair, replacement, or maintenance of the Common Area, Amenities or other
such property/improvements for which the Association is responsible
Section S. Notice and Quorum. Written notice of any meeting of Members called for the
purpose of taking any action authorized under Article V, Sections 3, shall be sent to all
Members not less than ten (10) days nor more than sixty (60) days in advance of the meeting.
At the opening of such meeting, the presence in person or by proxy of Members entitled to
cast sixty percent (60%) of the total votes of the membership shall constitute a quorum. If the
required quorum is not present, another meeting may be called subject to the same notice
requirement, and the required quorum at any subsequent meeting shall be one-half(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 6. Rate of Assessment. Both annual and special assessments must be fixed at a
uniform rate for all Lots. Annual assessments shall be collected in a lump sum or if the
Association so chooses , on a monthly basis (or other periodic basis, if and as determined by
the Board) and special assessments shall be collected as the Board determines. The provisions
of this Article V are subject to the provisions_pf Section 13 of this Article V.
Section 7. Commencement of Initial Annual Assessments:. The annual assessments •
provided for herein shall commence as to each Lot subjected to this Declaration on the first day
of the month following the month of recording of the instrument by which such Lot is
conveyed to an Owner who will occupy the single family home constructed upon such lot. The
first annual assessment shall.be adjusted according to the number of months remaining in the
calendar year for which such assessment is imposed.
Section 8. Commencement of Annual Assessments By Noveinber 1st of each year the
Board shall fix the amount of annual assessments against each Lot for the following calendar
year and shall send written notice thereof to each Owner. The due date for payment of annual
assessments shall be as set by the Board. At the time the Board fixes the amount of annual
assessments it shall adopt a budget for the following calendar year and cause a copy of such
budget in reasonable detail to be famished to each Owner:
Section 9. Proof of Payment Upon written demand of an Owner or Mortgagee, at any
time and for a reasonable charge, the Association shall furnish a written certificate signed by
an officer of the Association setting forth whether there are any then unpaid annual or special
assessments levied against such Owner's or Mortgagee's Lot. Such certificate shall be
conclusive evidence of payment of any annual or special assessments not stated therein as
unpaid.
Section 10. Non-Payment of Assessments. Any assessments which are not paid when
due shall be deemed delinquent. If an assessment is not paid within thirty (30) days after the
delinquency date, it shall bear interest from the delinquency date at the rate of eighteen percent
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(18%) per annum and shall become a continuing lien in favor of the Association on the Lot
against which assessed and the improvements thereon, and the Association may bring an action
at law or in equity against the person personally obligated to pay the same, including interest,
costs and reasonable attorneys' fees for any such action, which shall be added to the amount
of such assessment and included in any judgment rendered in such action, and the Association
may also enforce and foreclose any lien it has or which may exist for its benefit.
Section 11. Recording and Enforcement of Liens. To evidence a lien for sums assessed
pursuant i:o this Article, the Association may prepare a written notice of lien setting forth the
amount of the assessment, the date due, the amount remaining unpaid, the name of the Owner
of the Lot, the name of the -person personally obligated to pay the same and a description of the
Lot. Such a notice shall be Jsigned by an officer of the Association and it or a notice of lien or
adverse claim thereof may be recorded in the office of the Recorder of Hamilton County,
Indiana. No notice of lien shall be recorded until there is a delinquency in payment of the
assessment for thirty (30) days. Upon such a delinquency for thirty (30) days, the Association
shall proceed promptly to enforce the lien or, in its discretion, to sue the person personally
liable to pay the lien for the delinquency. Such lien shall be enforced by action in the same
manner in which .mortgages on _real property may be foreclosed in Indiana. In any such
foreclosure, the person personally obligated to pay the lien shall15e required to pay all costs of
foreclosure including reasonable`attorneys' fees. All such costs and expenses shall be secured
by the lien being foreclosed. The person personally obligated to pay the lien shall also be
required to pay to the Association any assessments against the Lot which shall become due
during the period of foreclosure. The Association shall have the right and power to bid at the
foreclosure sale or other legal sale and to acquire, hold, convey, lease, rent, encumber, use and
otherwise deal with the foreclosed interest in the Lot as the Owner thereof. The Association
shall, upon written request, report to any Mortgagee of a Lot any assessments remaining unpaid
- for longer than thirty (30) days after the same shall have become due; provided, however, that
such Mortgagee first shall have furnished to the Association written notice of the Mortgage
under which it claims and its notice address.
Section 12. Subordination of Lien. The lien of the assessments provided for herein shall
be subordinate to the lien of any first Mortgage ("First Mortgage") and to tax liens and liens for
special assessments in favor of any taxing and assessing unit of government The sale or
transfer of any Lot shall not affect the assessment lien. However, the sale or transfer of any Lot
pursuant to mortgage foreclosure or remedies provided-in a First Mortgage, or any proceeding
in lieu thereof, shall extinguish the lien of such assessments as to charges which were payable
prior to such sale or transfer. No such sale or transfer shall relieve a Lot from liability for any
assessments thereafter becoming payable or from the lien thereof or shall relieve the person
personally obligated.to pay the same or from personal liability for assessments payable prior to
such sale or transfer or acquisition. Any delinquent assessments, the lien for which is
extinguished by reason of this provision, may be reallocated and assessed to all Lots as a
common expense.
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Section 13. Limitations on Assessments Owed by Declarant. Notwithstanding anything
to the contrary contained herein, neither Declarant nor Estridge Custom Homes shall be
obligated to pay, as to any and all Lots owned by them from time to time, any assessments
(whether regular annual assessments or special assessments) payable hereunder by Owners.
ARTICLE VI
ARCHITECTURAL CONTROLS
Section 1. The Architectural Review Board. An Architectural Review Board
("Committee"` consisting g (2)
of two (2) or i;iore persons shall be appointed by isle Declarant.
Following the end of the Development Period, the Architectural Review Board shall be
appointed by the Board of Directors.
Section 2 Purpose. The Architectural Review Board shall regulate the external design,
appearance, use, location, and maintenance of the Property and of improvements thereon in
such manner as to preserve and enhance values and to maintain a harmonious relationship
among structures, improvements, and the natural vegetation and topography.
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Section 3. Conditions Except as otherwise expressly provided in this Declaration, no
• improvements, alterations, repairs, change of colors, excavations, changes in grade, planting, or
other work that in any way alters any Lot or the exteriOf of the improvements located thereon -•from its natural or improved state existing on the date such Lot was first conveyed in fee by. `
Declarant to an Owner shall be made or done without the prior approval of the Architectural
Review Board of a Lot Development Plan therefor. Prior to the commencement by any Owner
other than Declarant of (i) construction, erection or alteration of any Home, building, fence,
wall, swimming pool, tennis court, patio or other structure•on a Lot or (ii) any plantings on a
Lot; a Lot Development Plan with respect thereto shall be submitted to the Architectural
Review Board,. and no building, fence, wall, Home or other structure shall be commenced,
erected, maintained, improved, altered, made or done, or any plantings made, by any person
other than Declarant without the prior written approval of the Architectural Review Board of a
Lot Development Plan relating to such construction, erection, alteration or plantings. Such
approval shall be in addition to, and not, in lieu of, all approvals, consents, permits and/or
variances required by law from governmental authorities having jurisdiction over The
Overture, and no Owner shall undertake any construction activity within The Overture unless
all legal requirements"have been satisfied' Each Owner shall complete all improvements to a
Lot strictly in accordance with the Lot Development Plan approved by the Architectural
Review Board As used in this Section (3), "plantings" does not include flowers, bushes, shrubs
or other plants having a height of less than eighteen (18) inches.
Section 4. Procedures. In the event the Architectural Review Board fails to approve,
modify or disapprove in writing a Lot Development Plan within sixty (60) days after notice of
such Plan has been duly filed with the Architectural Review Board in accordance with
procedures established by Declarant, or, if Declarant is no longer a Class B member, the Board
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of Directors, approval will be deemed denied. A decision of the Architectural Review Board
(including a denial resulting from the failure of the Architectural Review Board to act on the
Plan within the specified period) may be appealed to the Board of Directors, which may reverse
or modify such decision (including approval of a Lot Development Plan deemed denied by the
failure of the Architectural Review Board to act on such Plan within the specified period) by a
two-thirds vote of the Directors then serving.
Section S. Guidelines and Standards The Architectural Review Board shall have the
power to establish and modify from time to time such written architectural and landscaping
design guidelines and standards as it may deem appropriate to achieve the purpose set forth in
Section 2 to the extent that such design guidelines and standards are not in conflict with the
specific provisions of the Declaration. Any such guidelines or standards may be appealed to
the Board of Directors which may terminate or modify such guideline or standard by a
two-thirds (2/3) vote of the Directors then serving.
Section 6 Application of Guidelines and Standards. The Architectural Review Board
shall apply the guidelines and standards established pursuant to Section 5 in a fair, uniform and
reasonable manner consistent with the discretion inherent in the design review process. In
disapproving any Lot Development Plan,, the Architectural Review Board shall furnish the
applicant with specific reasons for such disapproval and may suggest modifications in such
plan which would render the plan acceptable to the Architectural Review Board if resubmitted.
Section 7. Exercise of Discretion. Declarant intends that the members of the
Architectural Review Board exercise..discretion in the performance of their duties consistent
with the provisions of Section 6, and every Owner .by the purchase of a Lot shall be
conclusively presumed to have consented.to the exercise of discretion by such members. In any
judicial proceedings challenging a determination by the Architectural Review Board and in any
action initiated to enforce this Declaration in which an abuse of discretion by the Architectural
Review Board is-raised a's defense, abuse of discretion may be established only if a reasonable
person,-weighing the evidence and drawing all inferences in favor of the Architectural Review
Board, could only conclude that such determination constituted an abuse of discretion.
ARTICLE VII ...
OTHER RIGHTS AND OBLIGATIONS OF THE ASSOCIATION
Section 1. The'Common Area. The Association, subject to the rights and obligations of
the Owners as set forth in this Declaration, shall be responsible for, and be vested with, the
exclusive management and control of the Common Area, Amenities and all improvements (if
any) thereon (including equipment 'related thereto), and shall keep the same in good order and
repair. Such responsibility (to the extent the same is not otherwise herein declared or stated to
be the obligation or responsibility of Owners of Lots) shall include, but not be limited to, the
maintenance and repair of the Common Area, Amenities, and all other improvements or
material located within or used in connection with the Common Area.
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Section 2. Services. The Association may obtain and pay for the services of any persons
or entities, to manage its affairs, or any part thereof, to the extent it deems advisable, as well as
such other personnel as the Association shall determine to be necessary or desirable for the
proper operation of the Property, whether such personnel are furnished or employed directly by
the Association or by any person or entity with whom or which it contracts. The Association
may obtain and pay for legal and accounting services necessary or desirable in connection with
the operation of the Property, the enforcement of this Declaration or any proceedings or
controversy in which the Board determines it is necessary or advisable to have professional
advice. The Association may arrange with others to furnish trash collection and other common
services to each Lot. Any agreement for professional management of the Property, or any other
contract providing for services by Declarant or an entity owned or controlled by the same
persons as Declarant, must provide for termination by either party without cause and without
payment of a termination fee on ninety (90) days or less written notice and by either party for
cause upon thirty (30) days or less written notice and shall have a maximum contract term of
one (.l) year, but may be renewable by agreement of the parties for successive one-year terms.
Section 3. Personal Property for Common Use. The Association may acquire and hold
for the use and benefit of all of the Owners tangible and intangible personal property and may
dispose of the same by sale or otherwise. Such beneficial interest shall not be transferable
except•
with the`transTer of title to a Lot, provided that an Owner may delegate his right of
enjoyment of such personal property (if any) to any resident of his Lot. A transfer of title to a
• Lot shall transfer to the transferee ownership of the transferor's beneficial interest in such
property in _accordance with the purpose for which it is intended, without hindering or
encroaching upon the lawful rights of other Owners. The transfer of title to a Lot under
foreclosure shall entitle the purchaser to the beneficial interest in such personal property
associated with the foreclosed Lot.
Section 4. Hazard and Liability Insurance for Common Property. The Association shall
procure extended coverage insurance on the Common Area, reconstruction of such insurable
Common Areas and other common property, including, insured improvements. The cost of
such insurance shall be assessed as provided in Article V above. Holders of First Mortgages
("First Mortgagees") on Homes, jointly or singly, may pay overdue premiums on hazard
insurance policies, or may secure new hazard insurance coverage on the lapse of a policy, for
the Common Area and other common property, and First Mortgagees making such payments
shall be owed immediate reimbursement therefore from the Association. The Association is
authorized to enter into an agreement in favor of all First Mortgagees of Homes establishing
entitlement to such reimbursement.
ARTICLE VIII
OWNERS' MAINTENANCE
Section 1. Upkeep and Maintenance. Each Owner shall be responsible for the upkeep
and maintenance of his Home and all other areas, features or parts of his Lot to the extent not
otherwise maintained by the Association.
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ARTICLE IX
GENERAL RESTRICTIONS, OBLIGATIONS AND
RIGHTS APPLICABLE TO PROPERTY
Section 1. Home and.Lot Restrictions. No more than one Home shall be erected or
maintained on each Lot. No Home shall be used for purposes other than as a single-family
residence, nor shall any trade or business of any kind be carried on within a Home or upon a
Lot, nor shall any Lot or any part thereof be leased, sublet, assigned or suffered to be used for
transient occupancy, provided that none of the following activities shall be considered a
violation of this covenant:
A. The maintenance of model Homes and business and sales offices by Declarant or
their designated Builders during the construction and sale periods.
B. The maintenance of offices by the Association or its designated manager for
purposes of managing of the Properly.
C. Lease, rental or use of a Home,for purposes consistent with this Section.
D. The use of a Home by an Owner for incidental office purposes to the extent
permitted by applicable zoning ordinances.
Section 2. Building Set-back Lines. Building set-back lines are established on the Plat.
No building or structure shall be erected or maintained between said set-back lines and the
front, rear or side lot line (as the case may be) of said Lot.
Section 3. Home Size. Except as otherwise provided herein, no home may be
constructed on-any Lot unless such Home, exclusive of open porches, attached garages and
basements, shall have a minimum ground floor area of 2,000 square feet if a one story
structure, but in the case of a building higher than one story, there must be at least 1,000
square feet of ground floor area, and the total floor area shall not be less than 2,000 square
feet.
Section 4. Garages No garage shall be erected on any Lot which is not permanently
attached to. the Home, and no unenclosed storage area shall be erected. No enclosed storage
area shall be erected on any Lot which is not permanently attached to the Home.
Section S. Outbuildings. No trailers, shacks, outhouses, detached storage sheds or tool
sheds of any kind shall be erected or situated on any Lot, except that used by a builder during
the construction of a Home, which temporary construction structures shall be promptly
removed upon completion of construction of the Home.
Section 6. Driveways Each driveway on a Lot shall be of concrete or asphalt material.
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Section 7. Swimming Pools. No above-ground swimming pools shall be permitted in the
Property.
Section 8 Solar Heat Panels. No solar heat panels shall be permitted in the Property.
Section 9. Access. All Lots shall be accessed from the interior streets of the Property.
Section 10. Sight lines, Fences & Yard Ornaments. No hedge or shrub planting which
obstructs sight lines at elevations between two (2) and six (6) feet above the street shall be
placed or permitted to remain on any corner lot within the triangular area formed by the street
property lines and a line connecting points twenty-five (25) feet from the intersection of said
lines, or, in the case of a rounded property corner, from the intersection of the street lines
extended. The same sight-line limitations shall apply to any Lot within ten (10) feet from the •
intersection of a street line with the edge of a driveway pavement or alley line. No tree shall be
permitted to remain within such distances of such intersections unless the foliage lines are
maintained at sufficient height to prevent obstruction of such sight line. All fencing must be
wrought iron type fencing which is black in color. Its placement and style, shall be subject to
approval by the Committee prior to installation. No other style of fence will be permitted.
No yard ornament shall be allowed on any lot including but not limited to metallic balls,
concrete statues, etc. without the approval of the Archetectural Review Committee.
Section 11. Trash.No Lot shall`be used or maintained as a dumping ground for trash.
Rubbish, garbage or other waste shall be kept in sanitary containers. All equipment for storage
or disposal of such materials shall be kept clean and shall not be stored on any Lot in open
public view. All rubbish, garbage or other waste shall be regularly removed from a lot and
shall not be allowed to accumulate thereon:
Section 12. Tanks There shall be no gas or oil storage tanks used in connection with a
Lot.
Section 13. Obstruction. There shall be no obstruction of the Common Area, nor shall
anything be kept or stored on_any part of the Common Area without the prior written consent
of the Association except construction materials and equipment during the construction period
or except as specifically provided herein. Nothing shall be altered on, constructed in, or
removed from the Common Area except upon the prior written consent of the Association.
Section 14. Prohibition of Damage and Certain Activities. Nothing shall be done or
kept on any Lot or in any Home or on or in any Common Area or any part thereof which
would increase the rate of insurance on the Property or any part thereof over what the
Association, but for such activity, would pay, without the prior written consent of the
Association. Nothing shall be done or kept on any Lot or in any Home or on or in any
Common Area or any part thereof which would be in violation of any statute, rule, ordinance,
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regulation, permit or other validly imposed requirement of any governmental body. No
damage to, or waste of, the Common Area or any part thereof or of the exterior of the Property
and buildings thereon shall be committed by any Owner or any invitee or tenant of any Owner
and each Owner shall indemnify and hold the Association and the other Owners harmless
against all loss resulting from any such damage or waste caused by him or his invitees or
tenants, to the Association and other Owners. No noxious, destructive or offensive activity
shall be allowed in any Homes, on any Lots or in the Common Area or any part thereof, nor
shall anything be done thereon which may be or may become a nuisance to any other Owner or
to any other person at any time lawfully residing on the Property.
Section 15. Animals. No animals, rabbits, livestock, fowl or poultry of any kind shall be
raised, bred or kept in or on any Lot, except that household pets may be kept on Lots, subject
to rules and regulations adopted by the Board, provided that they are not kept, bred, or
maintained for any commercial purposes; provided, further, that any such pet causing or
creating a nuisance or unreasonable disturbance shall be permanently removed from the
Property subject to these restrictions upon three days' written notice from the Board, and
provided-further, that upon written request of twenty-five percent (25%) of the voting power of
the Association, the Board of Directors shall have the authority to, and shall order the removal
of, any pet:
Section 16. Storage. Outside storage of any items, including but without limiting the
generality of the foregoing, sporting equipment, toys, outdoor cooking equipment, yard and
garden tools. and equipment and trash and garbage containers, shall not be allowed unless
screened from view by enclosures so as to be effectively screened from view outside the lot
upon which the same are located. The design of such screened enclosure must be approved by
the Association in,accordance with the 'architectural control provisions hereof. The storage or
collection of rubbish of any character whatsoever, any material that emits foul or obnoxious
odors, the growing of any noxious or illegal'weed or other natural substance, and the harboring
of the source of any noise or activity which disturbs the peace, comfort or serenity of residents
is prohibited. Usual household trash and garbage shall be regularly collected and may be kept
outside only if in sanitary containers which are so screened. Notwithstanding the foregoing, no
boats, snowmobiles, recreational vehicles, trailers, camping vehicles, buses, mobile homes,
tractor/trailers, trucks, motorcycles, mini-bikes, mopeds, unlicensed or inoperable vehicles, or
any other vehicles of any description other than normal passenger automobiles (including
station wagons and small trucks such as pickups and vans) shall at any time be stored or parked
on any Lot outside of a garage, or on any street within the Property, or on any part of the
Common Area, either permanently or temporarily.
Section 17. Signs No signs of any kind (other than designations, in such styles and
materials as the Association shall by rule or regulation approve, of street addresses and names
of occupants) shall be displayed to the public view on any Lot, except that a "For Sale" or "For
Lease" sign may be displayed on a Lot which is being offered for sale or lease provided that it
is in such form, style and location as the Board may require, and except that Declarant shall be
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permitted to erect and maintain upon the Property such signs as it deems appropriate to
advertise the development during the construction and sale periods.
Section 18. Antennae and Satellite Dish. No roof antenna or satellite dishes exceeding
24 inches in diameter shall be installed or permitted in the Property. No satellite dish with a
diameter less than or equal to 24 inches shall be installed without the prior written approval of
the placement of said satellite dish by the Committee.
Section 19. Rentals. Any lease between an Owner and a lessee shall provide that the
terms of the lease shall be subject in all respects to the provisions of this Declaration and the
Articles of incorporation and By-Laws of the Association, and that any failure by the lessee to
comply with the terms of such documents shall be a default under the lease. All leases shall be
in writing. No Home or Lot,may-be leased for a period of less than 90 days. Other than the
foregoing, there shall be no restrictions on the right of any Owner to lease his Home.
Section-20. Rules and Regulations. The Board may adopt, and may amend, modify,
rescind and cancel, such other rules and regulations from time to time governing the use and
enjoyment of the Property, including the Common Area, as the Board in its sole discretion
deems appropriate or necessary.
Section 21. Accessory Outbuilding Prohibited. No accessory outbuildings shall be
erected on any Lot or Lots without the prior written approval of the Committee.
Section 22: Occupancy or Residential Use of Partially Completed Home Prohibited No
Home shall be occupied or used for residential purposes or human habitation until it shall have
been substantially completed for occupancy in accordance with the approved building plan.
The determination of whether the Home shall have been substantially completed in accordance
with the approved building plan shall be made by the Committee and such decision shall be
binding on all parties.
Section 23. Other Restrictions The Property shall be subject to the easements,
restrictions and limitations of record, and to all governmental zoning authority and regulations
affecting the Property, all of which are incorporated herein by reference.
Section 24. Right to Perform Certain Maintenance. In the event that the Owner of any
- Lot in the Property shall fail to maintain his Lot and any improvements situated thereon in
accordance with the provisions of this Declaration, Declarant shall have the right, but not the
obligation;by and through its agents and employees or contractors, to enter upon said Lot and
repair, clean or perform such other acts as may be reasonably necessary to make such Lot and
improvements thereon, if any, conform to the requirements of this Declaration. The cost
therefor to Declarant shall be collected in a reasonable manner from Owner. Declarant or its
agents, employees or contractors shall be liable for any damage which may result from any
maintenance work performed hereunder. Upon the Applicable Date, the Association shall
succeed to and be vested with the rights of the Declarant as provided for in this Section.
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-- Section 25. Development and Sale Period. Nothing contained in this Article IX shall be
construed or interpreted to restrict the activities of Declarant in connection with the
development of the Property and sale of Lots. Declarant shall be entitled to engage in such
activities and to construct, install, erect and maintain such facilities upon any portion of the
Property at any time owned or leased by Declarant, as in the sole opinion of Declarant may be
reasonably required, or convenient or incidental to, the development of the Property and sale of
the Lots; such facilities may include, without limitation, storage areas, signs, parking areas,
model residences, construction offices, sales offices and business offices.
ARTICLE X
RIGHTS FOR THE PROTECTION OF FIRST MORTGAGEES
Section 1. Precedence. The provisions of this Article take precedence over any other
conflicting provisions of this Declaration.
Section 2. Notice of Action. _Upon written request to the Association, identifying the
name and address of the holders insurer or guarantor of a First Mortgage on a Lot or Home and
the address of such party (a holder of a First Mortgage on a Lot or Home who has so requested
such notice shall be referred to herein as an "eligible mortgage holder" and an insurer or
governmental guarantor of a First Mortgage on a Lot or Home who has so requested such
notice shall be referred to herein as an "eligible insurer or guarantor"), any such eligible
mortgage holder or eligible insurer or-guarantor will be entitled to timely written notice of:
(A) Any condemnation loss or any casualty loss which affects a material portion of the
project or any lot or Home on which there is a First Mortgage held, insured, or
guaranteed by such eligible mortgage holder or eligible insurer or guarantor, as
- applicable;
(B) Any delinquency in the payment of assessments or charges owed, or any other
default in the performance of any obligation under the Declaration, By-Laws or
Articles of Incorporation by an Owner of a Lot or Home subject to a First Mortgage
held, insured, or guaranteed by such holder or insurer or guarantor, which remains
uncured for a period of 60 days;
(C) Any lapse, cancellation or material modification of any insurance policy or fidelity
bond maintained by the Association;
(D).Any proposed action which would require the consent of a specified percentage of
mortgage holders as specified in this Article; and
(E) Any default in the performance by the Owner of any obligation under the
Declaration or By-Laws which is not cured within sixty(60) days.
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- Section 3. No.Right of First Refusal. The right of an Owner to sell, transfer, or
otherwise convey his Lot or Home will not be subject to any right of first refusal or any similar
restriction in favor of the Association or other Owners.
Section 4. Liability for Unpaid Assessments. Any First Mortgagee who obtains title to
or comes into possession of a Lot pursuant to the remedies provided in its First Mortgage or by
foreclosure of the First Mortgage or by deed or assignment in lieu of foreclosure, and any
purchaser at a foreclosure sale in connection with any such First Mortgage shall not be liable
for the unpaid assessments of the Lot which were payable prior to the acquisition of title to or
possession of such Lot by the First ?vio _ogee.
Section 5 Certain Amendments. In addition to other requirements set forth herein,
unless at least seventy-five percent (75%) (or such higher percentage as is required by law or
this Declaration) of the First Mortgagees of the Lots or their assigns (based upon one vote for
each First Mortgage owned), and at least seventy-five percent (75%) (or such higher
percentage as is required by law. or this Declaration) of the Owners (other than any sponsor,
developer, or builder, including the Declarant of the Lots (based upon one vote for each Lot
owned) have given their prior,written approval, neither the Association nor the Owner shall be
entitled to:
(A) terminate the legal status of the project (except in accordance with procedures set
forth in this Declaration and the By-Laws in the event of amendment or termination
made as a result of destruction, damage or condemnation);
(B) by act or omission, seek to abandon, partition, subdivide, encumber, sell or transfer
the Common Area; provided, however, that the granting of easements for public
utilities or for other public purposes consistent with the intended use of the Common
Area shall not be deemed such a transfer,
(C) use hazard insurance proceeds for losses to any Common Area or other common
property for other than the repair, replacement or reconstruction of such common
property;
(D) add or amend any material provisions of this Declaration which establish, provide
for;govern or regulate any of the following:
(1) voting;
(2) assessments, assessment liens or subordination of such liens;
(3) reserves for maintenance, repair and replacement of the Common Area (or
exterior maintenance of Homes if applicable);
(4) insurance or Fidelity Bonds;
(5) rights to use of the Common Area;
(6) responsibility for maintenance and repair of the several portions of the
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project;
(7) boundaries of any Lot;
(8) the interests in the general Common Area;
(9) leasing of Lots or Homes;
(10) imposition of any right of first refusal or similar restriction on the right of
an Owner to sell, transfer, or otherwise convey his or her Lot or Home;
(11) any provisions which are for the express benefit of First Mortgage holders,
eligible mortgage holders or eligible insurers or guarantors of First
Mortgages on Lots,
except in accordance with rocedurs set forth in this Declara,:ien .arid the
By-Laws ire tne event of amendment or terinination made as a result of
destruction, damage or condemnation or with respect to a reallocation of
interests in the Common Area which might occur pursuant to any plan of
expansion or phased development contained in this Declaration; or
(E) by act or omission, change, waive or abandon any scheme of regulations, or
enforcement thereof pertaining to the architectural design or the exterior
• appearance of Home(s):
For purposes of this Section, an addition or amendment to such documents shall not be
considered material if it is made (I) for the purpose of correcting clerical, typographical or
technical errors, (II) for clarification only, (III) to comply with requirements of,.the Federal
National Mortgage Association, the Government National Mortgage Association, the Federal
Home Loan Mortgage Corporation, the Department of Housing and Urban Development, or
any other governmental agency or any other public, quasi-public or private entity which
performs (or may in the future perform) functions similar to those currently performed by
such entities, (IV) to induce any of the agencies or entities mentioned or referred to in
subsection III hereinabove to make, purchase, sell, insure or guarantee First Mortgages
covering Lots and Home(s), or (V) to bring such documents into compliance with any
statutory requirements, and any such addition or amendment to such documents which is so
considered not to be material may be made by Declarant acting alone and without the consent,
approval or joinder of the Owners, the Association, any First Mortgagees, any other
mortgagees or any other person.
An eligible mortgage holder who receives a written request to approve additions or
amendments who does not deliver or mail to the requesting party a negative response within 30
days shall be deemed to have approved such request.
Section 6. Examination of Books and Records First Mortgagees and holders, insurers
and guarantors'of First Mortgages shall have the right to examine the books and records of the
Association, as set forth more fully in the By-Laws.
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Section 7. Payment of Taxes and Insurance. First Mortgagees may,jointly or singly,
•
- pay taxes or other charges which are in default and which may or have become a charge
against any Common Area or other common property and may pay overdue premiums on
hazard insurance policies or secure new hazard insurance coverage on the lapse of a policy for
the Common Area or other common progeny, and First Mortgagees making such payments
shall be owed immediate reimbursement therefor from the Association.
Section 8. Designation of Representative Any holder of a First Mortgage on a Lot or
Home may designate a representative to attend meetings of members, but no such
representative shall have any voting privileges unless such voting privileges have been granted
to Chi holder o .:'._1c rsi \.f.r.. tgage by the 0,vrit-r of cc: Lot involved.
Section 9. Distribution of Insurance Proceeds and Condemnation Awards. No provision of
this Declaration or the By-Laws shall be construed as giving to the Owner or to any other party
priority over any rights of First Mortgagees of Lots pursuant to their First Mortgages in the
Case of a distribution to Owners of insurance proceeds or condemnation awards for losses to or
a taking of Common Area or other common property.
ARTICLE XI
- • INSURANCE
Section 1. Maintenance of Insurance Commencing not later than the time of the first
-. - conveyance of a Lot to an Owner other than Declarant, the Association shall maintain,_to the -
extent reasonably available, the following insurance, all of which shall be issued by insurance
carriers meeting at least the minimum requirements of, and shall otherwise comply with the
requirements of the agencies and entities mentioned or referred to herein, to-wit
(A) Master or blanket type of policy of fire insurance with extended coverage
r endorsement (including vandalism, sprinkler leakage (if appropriate), debris
removal, cost of demolition, malicious mischief, windstorm and water damage)
insuring the Common Area (including all of the fixtures installed therein). Said
policy shall afford, as a minimum, protection against the following:
(1) loss or damage by fire and other perils normally covered by the standard
extended coverage endorsement,
(2) all other perils which are customarily covered with respect to projects
similar in construction, location and use, including all perils normally covered by
the standard "all risk" endorsement, where such is available.
The name of the insured under such policies must be set forth therein
substantially as follows:
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"The Overture Homeowners Association, Inc. for
the use and benefit of the individual Owners".
The policies may also be issued in the name of an authorized representative of the
Association, including any insurance Trustee with whom the Association has entered into an
Insurance Trust Agreement, or any successor to such Trustee, for the use and benefit of the
individual Owners. Loss payable shall be in favor of the Association (or insurance Trustee), as
a t-ustee for each Owner and each such Owner's First Mortgagee. Each Owner and each such
Owners First Mortgagee, if any, shall be beneficiaries of the policy with respect to the
Common Area equally with each other Lot. Policies must provide for the recognitionn of any
If reasonably available; such policies shall include:
(1) Agreed Amount Endorsement (or like endorsement);
(2) Inflation Guard Endorsement;
(3) Construction Code Endorsements (such as a Demolition Cost Endorsement, a
Contingent Liability from Operation of Building Laws Endorsement and an
Increased Cost of Construction Endorsement) if the project is subject to a
construction code provision which would become operative and require changes to
• undamaged portions of the improvements, thereby imposing significant costs in the
event of partial destruction of the project by an insured peril;
(4) Steam Boiler Coverage (if applicable) for loss or damage resulting from steam
boiler equipment accidents in an amount not less than S50,000 per accident per
location; and
(5)All such policies must provide for the following: recognition of any Insurance Trust
Agreement; a waiver of the right of subrogation against Owners individually; that
the insurance is not prejudiced by any act or neglect of individual Owners which is
not in the control of such Owners collectively; and that the policy is primary in the
event the Owner has other insurance covering the same loss. .
(B) Worker's Compensation, occupational disease and like insurance (if the Association
has eligible employees);
(C) Comprehensive public liability insurance in such amounts and with such coverage
as the Board of Directors shall from time to time determine, but at least:
(1) covering events occurring anywhere on the Common Area (and public and
private ways) or arising out of or in connection with the use, ownership or maintenance
of the Common Area;
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(2) covering; without limitation, legal liability of the insureds for property damage,
bodily injuries and deaths of persons in connection with the operation, maintenance or
use of the Common Area, and legal liability arising out of lawsuits related to
employment contracts of the Association, and such other coverages as are customarily
covered with respect to projects similar in construction, location, and use;
(3) insuring each officer and member of the Board of Directors, the managing agent
and each Owner and with cross liability endorsement to cover liabilities of the Owners
as a group to an Owner and with a "Severability of Interest Endorsement" which would
i ?su3 " �.ror l denying he �l ci�`TZ of an O'1 ite r fat the a ir'e-(
r ., zei _ t act of
another Owner, occupant or the Association; and
(4) in amounts generally required by private institutional investors for projects similar
in construction, location and use. (However, such coverage shall be for at least
$1,000,000 for bodily injury,, including deaths of persons and property damage arising
out of a single occurrence). .
(D) Such other insurance as the Board of Directors may determine.
(E) All such policies must provide that they may not be changed or substantially
• modified by any party without at least 10 days' prior written notice to the
Association and to each holder of a First Mortgage which is listed as a
scheduled holder of a First Mortgage in the insurance policy.
Section 2. Owners' Individual Policies. Each Owner should carry, and shall be
responsible for carrying, insurance for his own benefit insuring his personal liability, his Lot,
his Home, and other personal progeny, and fixtures, furniture; furnishings, and other personal
progeny, and fixtures and other property supplied or installed by him or.a previous Owner or
tenant.
Section 3. Insurance Trustee. Notwithstanding any of the foregoing provisions and
requirements relating to property or liability insurance, there may be named as an insured, on
behalf of the Association, the Associafion's authorized representative, including any Trustee
with whom the Associafion may enter into any insurance Trust Agreement or any successor to
such Trustee (each of whom shall be referred to herein as the "Insurance Trustee'), who shall
have exclusive authority to negotiate losses under any policy providing such property or
liability insurance. Any insurance.Trustee must be a corporation or association organized or
authorized to do business under the laws of the State of Indiana, and authorized and permitted
by its charter documents and by state law to conduct a trust business.
Section 4 Insurance Premiums Insurance premiums for any blanket property insurance
coverage, and the other insurance coverages purchased by the Association, shall be common
expenses to be paid by assessments levied by the Association, and such assessments shall be
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held in a separate escrow account of the Association and used solely for the payment of the
blanket property insurance premiums and other insurance premiums as such premiums become
due.
ARTICLE XII
EMINENT DOMAIN
Section 1. The Association shall represent the Owners in any condemnation proceedings
•
and in any negotiations, settlements and agreements with the condemning authority for
acquisition of the ommon Area, r;,arthereof,
and by acceptance of a deed for her or its
Lot, each Ow ner appoints the Association as such Owner's agent and attorney-in-fact for such
purposes. In the event of a taking or acquisition of part or all of the Common Area by a
condemning authority, the award or proceeds of settlement shall be payable to the Association,
or other trustee (such as a bank or title insurance company appointed as such by the
Association), for the use and benefit of the Owners and their Mortgagees as their interests may
appear.
Section-2. Reconstructions. In the event of a partial taking of the Common Area (or •
•
conveyance in lieu thereof) the Association shall promptly cause the remaining portions of the
-Common Area.to be-restored functionally and aesthetically to reasonably the same condition as
before the taking, using so much of the proceeds of such taking for such purpose as shall be
reasonably necessary. In the event of a total taking of the Common Area (or conveyance in lieu
thereof), and the project is terminated by the election hereinabove required, the proceeds shall
be allocated equally among each Lot, -payable jointly to the Owners and mortgage holders
• thereof. . . _..
ARTICLE XIII
•
GENERAL PROVISIONS
Section 1. Enforcement Enforcement of these covenants and- restrictions and of the
provisions contained in the Articles of Incorporation and By-Laws of the Association may be
by any proceeding at law or in equity instituted by the Association or by any Owner against
any person (including the Association) violating or attempting to violate any covenant or
restriction, either to restrain violation, to compel compliance, or to recover damages, and •
against the land, to enforce any lien created by these covenants; and failure by the Association
or by.any Owner to enforce any covenant or restriction herein contained shall in no event be
deemed a waiver of the right to do so thereafter. Attorneys' fees and costs of any such actions
to restrain violation or to recover damages as determined by the court shall be assessable
against and payable by any persons violating the terms contained herein.
Section 2. Mergers. Upon a merger or consolidation of the Association with another
corporation as provided in its Articles and By-Laws, its properties, rights and obligations may,
25
•
by operation of law, be transferred to another surviving or consolidated association or
corporation, or, alternatively, the properties, rights and obligations of another corporation may,
by operation of law, be added to the properties, rights, and obligations of the Association as a
surviving corporation pursuant to a merger. The surviving or consolidated corporation may
administer the covenants and restrictions established upon any other properties in one scheme.
No such merger or consolidation, however, shall effect any revocation, change or additions to
the covenants established by this Declaration within the Property, except as hereinabove
provided.
Section 3 Severability. Invalidation of any one or more of these covenants or restrictions
by legislation, judgment or court order shall in no way affect any other provisions, which shall
rf;n_aia-1 in foil force and._ effect.
Section 4. Notices. Any notice required to be sent to any Member of the Association
under the provisions of this Declaration shall be deemed to have been properly sent when mailed,
postage prepaid, to the last known address of such Member appearing on the records of the
Association at the time of such mailing.
Section S. Captions . The Article and Section headings herein are... intended for
convenience of reference only and shall not be given any substantive effect
Section 6. Construction . In the event of an apparent conflict between this Declaration
and the By-Laws, the provisions of this Declaration shall govern.
ARTICLE XIV .
AMENDMENT
Except as hereinafter provided, this Declaration may be amended during the initial term
provided above by.an instrument signed by not less than ninety percent (75%) of the Owners and
thereafter by an instrument signed by not less than seventy-five percent (60%) of the Owners.
Certain amendments also require additional approval as specified in this Declaration.
The foregoing notwithstanding, none of the rights or duties of Declarant reserved or set out
hereunder may be amended or changed without Declarant's prior written approval, as the case may
be, so long as Declarant owns a Lot or Lots. The foregoing notwithstanding, this Declaration may
also be amended by Declarant at any time prior to the Applicable Date if it has an ownership
interest in the Property.
ARTICLE XV
PARTS OF THE PROPERTY
Section 1. Utility and Drainage Easement. There are parts of the Property on the Plat
marked "Utility and Drainage Easement," either separately or in combination. The Utility
Easement is hereby created and reserved for the use of all public utility companies (not
26
•
including transportation companies), governmental agencies, utilities, the Association, and the
Declarant during the Development Period for access to and installation, maintenance. repair or
removal of poles, mains, ducts, drains, lines, wires, cables and other equipment and facilities
for the furnishing of utility services, including cable television services and for access to and
installation, repair.or removal of a sanitary sewer system. The Drainage Easement is hereby
created and reserved (i) for the use of Declarant during the "Development Period' (as such term
is defined in this Declaration) for access to and installation, repair or removal of a drainage
system, either by surface drainage or appropriate underground installations, for the Real Estate
and adjoining property and (ii) for the use of the Association and the appropriate governmental
authorities for access to and maintenance, repair and replacement of such drainage system;
provided, however, that the Owner of any Tot subject to a Drainage 'Easement ;ha!l be required
to keep ti'ie, portion of said Drainage Lasement on his Lot 'tree from obstructions so that the
surface water- drainage will be unimpeded. The delineation of the Utility Easement and
Drainage Easement areas on the plat shall not be deemed a limitation on the rights of any entity
for whose use such easement is created and reserved to go on any lot subject to such easement
temporarily to.the extent reasonably necessary for the exercise of the rights granted to it by this
Section 1. No permanent structures shall be-erected or maintained upon said easements. The
Owners of Lots shall take title to the Lots subject to the Utility Easement and Drainage
Easement herein created and reserved.
Section 2. Common Area. There is a part of the Property on the Plat marked "Common
Area." The Common Area shall be used (i) for storm water retention drainage purpose; (ii) for
the aesthetic and visual enjoyment of the Owners of Lots and (iii) following the end of the
Development Period, for such purposes as the Association shall deem appropriate. The
foregoing notwithstanding, the lakes located in the Common Areas ("Lakes") are part of the
stormwater m anagement plan for the development and shall be reserved and maintained by the
• Association for such purpose.
•
Section 3. Non-Access Easement. There is a part of the Property on the Plat marked
"Non-Access Easement." The Non-Access Easement is created for the purpose of identifying
that part of .the Property over which vehicular access to and from a Lot from an abutting
roadway is prohibited.
Section 4. Public Street. The part of the Property on the Plat marked "Public Street," or
the part of the Property not marked Public Street but so marked as a street, is hereby dedicated
to Hamilton County as a Public Street.
Section S. Landscape Easement. The "Landscape Easement" ("L.E.") shall be used for
landscaping purposes and the landscaping located within the easement may be maintained by
the Association, and the Association shall have an easement of ingress and egress on and over
such area for the purpose of maintenance. The landscaping and other improvements planted or
installed by the Declarant' and/or the Association in this area may not be removed by an
Owner, and no fence shall be placed in such area by an Owner, except as approved by the
Association or the Declarant.
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ARTICLE XVI
ENFORCEMENT
Section 1. Remedies Violation or threatened violation of these covenants and
restrictions shall be grounds for an action by the Declarant and Association, any person or
entity having any right title or interest in the Real Estate(or any part thereof), or any person or
entity having any right, title or interest in a Lot which is now or hereafter made subject to the
Declaration, and all persons or entities claiming under them, against the person or entity
violating or threatening to violate any such covenants or restrictions. Available relief in any
such action shall include recovery of damages or other sums due for such violation, injunctive
reii`.'.f against any ;ucia violation or threatened violation, declaratory relief and the recovery of
costs and attorneys' fees incurred by any party successfully enforcing these covenants and
restrictions; provided, however, that neither the Declarant nor the Association shall be liable
for damages of any kind to any person for failing to enforce the provisions of this Declaration.
In Witness hereof; Declarant has caused this document to be executed as of the date first
written above.
Estrida Develo ent Co pang, Inc.
By.
Printed: t L L. V c J St L L
Tite:
•
STATE OF INDIANA
) SS: ACKNOWLEDGMENT
COUNTY OF HAMILTON)
Before mega-Notary Public in and for said County and State, personally appeared,
- V ‹S-7- ,the of Estridge
Development Company, Inc., who acknowledged the executign of the foregoing Covenants, PRY PO
Conditions & Restrictions on behalf of Estridge Development Company, Inc. O ���
SEAL "
Witness my hand and Notarial Seal this /7 day of L5 T
.�/O .,
Ty/
My Commission Expires:
DONNA ARONSON, o ory u lie
Resident of MartfZiL,Rtbblic
P7-2_2 e My Commission Exp. Dec.17, 2006
Residing in //ail 6 1-) County P 0 /7 /�� / r�/mss of
Printed Name
28
Exhibit A
Legal Description
Part of the Southeast Quarter of Section 28,Township 18 North,Range 4 East in Clay Township,
Hamilton County, Indiana,being more particnlariy described as follows:
Beginning at the Southeast Corner of said Quarter Section: thence North 89 degrees 30 minutes 59
seconds West (assumed bearing) along the South line of said Quarter Section 1050.86 feet; thence
North 00 degrees 10 minutes 26 seconds East parallel with the.East line of said Quarter Section
744.61 feet;thence South 89 degrees 50 minutes 06 seconds East 1050.86 feet to a point the
aforesaid East line;thence South 00 degrees 10 minutes 26 seconds West along said East line 744.34
feet to the place of beginning,containing 17.96 acres,more or less,subject to all legal highways,
easements,rights-of way and other restrictions of record.