HomeMy WebLinkAboutCovenants_Declarations_Cottage_Carmel_V1_082709 (2)DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS
FOR THE COTTAGE AT CARMEL
THIS DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS FOR THE
COTTAGE AT CARMEL (the “Declaration”) is made as of this _____ day of ___________, 200__, by
GUILFORD COMMONS, LLC, an Indiana limited liability company (the “Declarant”).
RECITALS:
WHEREAS, 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 reference (the “Property”);
WHEREAS, 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;
WHEREAS, 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;
WHEREAS, the Declarant deems it desirable for the efficient preservation of the values of the
Community to create an association to be known as The Cottage at Carmel Homeowners Association, Inc., a
not-for-profit association (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 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. “Act” shall mean the Indiana General Nonprofit Corporation Act of 1991, as amended from
time to time.
Section 1.2. “Articles” shall mean the Articles of Incorporation of the Association (as said term is
hereafter defined) filed, or to be filed, with the Office of the Secretary of State of Indiana, as the same are or
hereafter may be amended from time to time.
Section 1.3. “Association” shall mean and refer to The Cottage at Carmel Homeowners Association,
Inc., a not-for-profit association, its successors and assigns.
Section 1.4. “Board of Directors” means the Board of Directors of the Association.
Section 1.5. “Bylaws” shall mean the Bylaws initially adopted by the Board of Directors of the
Association and all amendments and additions thereto. A true, accurate, and correct copy of the Bylaws is
attached hereto and incorporated herein by reference as Exhibit B.
Section 1.6. “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 (as
said term is hereafter defined), and shall include all of the Property which is shown on such Plat (as said term is
hereafter defined) and/or as described herein, and which is not part of a Lot (as said term is hereafter defined).
No part of the Common Area shall be dedicated to the public. The Common Area within the Property shall be
what is identified on the Plat as Common Area Lot “A” and shall comprise four components; namely:
(a) private streets comprising the streets identified on the Plat (as said term is hereafter defined) as
_______________, _____________, and _______________ (collectively, the “Private Streets”);
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(b) concrete sidewalks located adjacent to the Private Streets and in areas between buildings and
adjacent to buildings but excluding sidewalks extending from the community walkways to the
front door of each individual Dwelling Unit (the “Sidewalks”);
(c) areas specifically identified and/or designated as visitor, guest or common parking areas on the
Plat (as said term is defined hereafter). Parking Areas are further described and defined in
Articles IX and X below;
(d) open space, which shall include all parts of the Common Area not occupied by the Private
Streets, Sidewalks, and the Parking Areas (the “Open Space”); and
(e) detention areas as shown on the Plat (as said term is defined hereafter) (the “Detention Areas”).
Section 1.7. “Common Expenses” shall mean and refer to expenses of administration of the
Association, and expenses for the upkeep, maintenance, repair and replacement of all Common Areas, and all
sums, costs and expenses declared by this Declaration to be Common Expenses.
Section 1.8. “Declarant” shall mean and refer to Guilford Commons, LLC, an Indiana limited liability
company, and its successors or assigns to whom Guilford Commons, LLC 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 1.9. “Declaration” shall mean and refer to this Declaration of Covenants, Conditions and
Restrictions for The Cottage at Carmel, which is to be recorded in the Office of the Recorder of Hamilton
County, Indiana.
Section 1.10. “Designated Builder” shall mean and refer, during such period as such designation by the
Declarant may continue, any person or entity engaged in the construction of a Dwelling Unit (as said term is
hereafter defined) who is designated by Declarant as a Designated Builder. Designated Builders shall include,
without limitation, Highline Construction, LLC. Declarant may make and revoke any such designation at any
time and from time to time.
Section 1.11. “Developer” shall mean Guilford Commons, LLC, an Indiana limited liability company,
and its successors or assigns to whom Guilford Commons, LLC assigns any or all of its rights as developer of
the Project (as said term is hereafter defined) by assignment recorded in the Office of the Recorder of Hamilton
County, Indiana.
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Section 1.12. “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.
Section 1.13. “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 agency of the United States government.
Section 1.14. “Lot ” shall mean and refer to any discrete plot of land created by and shown on a Plat (as
said term is hereafter defined) upon which a Dwelling Unit is intended to be constructed in accordance with
applicable zoning ordinances; provided, however, that where a Dwelling Unit (a) is separated from an adjacent
Dwelling Unit by a Party Wall, or (b) shares a Party Wall with an adjacent Dwelling Unit, the center line of
such Party Wall and its vertical extensions shall constitute the common boundary line (lot line) between
adjacent Lots, and the closure of the boundary lines of such adjacent Lots shall be accomplished by extending
perpendicular lines from the horizontal extremities of such Party Wall to the closest boundary line or lines for
such Lots as shown on any Plat or any part thereof; provided, further, that where any exterior wall of a Dwelling
Unit is not a Party Wall, but extends outside the boundary lines (lot lines) of any Lot (as shown on any such Plat
or part thereof) upon which such Dwelling Unit is primarily located, the boundary lines of such Lot shall be
deemed extended to include all of the ground area occupied by such Dwelling Unit. It is the intent hereof that,
in any and all events in which a boundary line as shown on any Plat or part thereof does not coincide with the
actual location of the respective wall of the Dwelling Unit because of inexactness of construction, settling after
construction, or for any other reason, this Declaration and any Plat or any part thereof shall be interpreted and
construed so that all ground area underlying and lying beneath a Dwelling Unit shall be and constitute part of
the Lot upon which such Dwelling Unit is primarily located to the end that all of such ground area shall be
subject to fee simple ownership by the Owner of such Dwelling Unit; to the extent necessary to accomplish and
implement such intention, interpretation and construction, the boundary lines of the Lots shall be determined in
accordance with the foregoing definitional provisions and boundary lines as so determined shall supersede the
boundary lines for Lots shown on any Plat or part thereof.
Section 1.15. “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.
Section 1.16. “Mortgagee” shall mean and refer to any person or entity secured by a first mortgage or
first deed of trust on any Lot or the Common Area who has notified the Association of this fact in writing. An
“Eligible Mortgagee” shall be a Mortgagee who has given notice to the Association of its interest and requested
all rights afforded Eligible Mortgagees under Article XIV.
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Section 1.17. “On Street Parking Space” shall mean the parking space located along one (1) of the
Private Streets and designated in the Plat for use by the owner, tenant, lessee, or occupant, or invitee thereof, of
a particular Dwelling Unit.
Section 1.18. “Owner” shall mean and refer to the record owner, whether one (1) or more persons or
entities, of the fee simple title to any Lot, including a contract seller but excluding those holding such interest in
a Lot solely by virtue of a contract to purchase a Lot or as security for the performance of an obligation. If
more than one (1) person or entity is the record owner of a Lot, the term Owner as used herein shall mean and
refer to such owners collectively, so that there shall be only one (1) Owner of each Lot.
Section 1.19. “Party Wall” shall mean and refer to each wall which is built as part of the original
construction of the Dwelling Units upon the Property and placed on the dividing line between Lots. Party Walls
are further described and defined in Article XI below.
Section 1.20. “Plat” shall mean and refer to a final plat or an “as-built” subdivision plat, of all or part of
the Property, recorded with the Recorder of Hamilton County, Indiana.
Section 1.21. “Project” shall mean the exclusive townhome development known as “The Cottage at
Carmel” being or that has been developed by Developer on the Property.
Section 1.22. “Property” shall mean and refer to that certain real property located in Hamilton County,
Indiana, which is more specifically described in Exhibit A, which is attached hereto and incorporated herein by
reference as the same may be duly subdivided and platted, and any additions thereto which, from time to time,
may be subjected to the covenants, conditions, restrictions, reservations, easements, charges and liens of this
Declaration.
ARTICLE II
MEMBERSHIP
Every Owner of a Lot which is subject to this Declaration shall be a Member of the Association.
Membership shall be appurtenant to and may not be separated from ownership of any Lot which is subject to
assessment by the Association. Ownership of such Lot shall be the sole qualification for membership. No
Owner shall have more than one (1) membership in the Association for each Lot it owns.
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ARTICLE III
VOTING RIGHTS
Section 3.1. Classes. The Association shall have two (2) classes of voting membership as follows:
Class A: Members shall be all Members with the exception of the Class B Member. A Class A Member
shall be entitled to one (1) vote for each Lot in which it holds the interest required for membership
pursuant to Article II herein.
Class B: The Class B Member shall be the Declarant. A Class B Member shall be entitled to three (3)
votes for each Lot in which it holds the interest required for membership pursuant to Article II herein.
The Declarant’s Class B membership interest shall be converted to and shall become a Class A
membership interest with one (1) vote for each Lot in which it holds an interest upon the happening of
any of the following events, whichever occurs first:
(a) within four (4) months after the total votes outstanding in the Class A membership equal the total
votes outstanding in the Class B membership; or
(b) seven (7) years from the date of recordation of this Declaration; or
(c) sixty (60) days after both (i) the Declarant abandons construction and (ii) any Designated Builder
abandons construction. For purposes hereof, the “abandonment of construction” shall not be
deemed to have occurred unless and until there is no evidence of continuing construction and no
new Dwelling Unit construction has been initiated for a period of eighteen (18) months.
Section 3.2. Multiple Ownership Interests. Where the Owner of a Dwelling Unit constitutes or consists
of more than one (1) person, such as joint tenants, tenants in common, tenants by the entirety, or partnerships,
corporations, limited liability companies, family limited partnerships, or similar forms of ownership, there shall
be only one (1) voting representative entitled to vote for that Dwelling Unit. At the time of acquisition of title
to a Dwelling Unit by a multiple Owner or entity Owner, those persons constituting such Owner shall file with
the Secretary of the Association an irrevocable proxy appointing one (1) of such persons or entity as the voting
representative for such Dwelling Unit, which shall remain in effect until all of such parties constituting such
multiple Owners or entity Owner designate another voting representative in writing, or such appointed
representative relinquishes such appointment in writing, becomes incompetent, dies or such appointment is
otherwise rescinded by order of a court of competent jurisdiction or the Owner no longer owns such Dwelling
Unit. Such appointed voting representative may grant a proxy to another to vote in his place at a particular
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meeting or meetings in accordance with the Bylaws, which shall not constitute a permanent relinquishment of
his right to act as voting representative of the Dwelling Unit.
Section 3.3. Board of Directors. The Board of Directors shall be appointed and/or elected as prescribed
by the Association’s Articles and Bylaws. The Board of Directors shall manage the affairs of the Association.
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, tenants, lessees, 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
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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
his Article;
(e) the right of the Association to grant, with or without payment to the Association, licenses, rights-
of-way and easements through or over any portion of the Common Area;
(f) the right of the Declarant or the Association to re-subdivide and/or adjust the boundary lines of
the Common Area consistent with applicable zoning and subdivision ordinances as either deems
necessary for the orderly development of the subdivision;
(g) all rights reserved by the Declarant in Article IX hereof; and
(h) the right of the Declarant to erect, maintain and operate real estate sales and construction offices,
displays, signs and other facilities for sales, marketing and construction purposes.
The Association, acting through the Board of Directors, may exercise these rights without the need for
any approval from any Member, Mortgagee or any Federal Agency, unless provided otherwise in this
Declaration.
Section 4.2. Delegation of Use. Any Member may delegate its right of enjoyment to the Common Area
and facilities to the members of its immediate household, its tenants, lessees, or contract purchasers who reside
on the Member’s Lot. However, by accepting a deed to such Lot, every Owner covenants that should the
Owner desire to rent and/or lease its Lot, the rental and/or lease agreement shall contain specific conditions
which require the tenant to abide by all Association covenants, rules and regulations, and any Owner desiring to
rent and/or lease a Lot further covenants that Owner will provide tenant with a complete set of all Association
covenants, declarations, Bylaws, rules and regulations.
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ARTICLE V
ASSESSMENTS
All Dwelling Units, except for unoccupied Dwelling Units owned by the Declarant or a Designated
Builder, shall be subject to all of the assessments including, but not limited to, Regular Assessments, Special
Assessments, Sewer Assessments, and one-time assessments, levied and/or assessed by the Association in
accordance with Article V of the Bylaws, and all subsequent amendments thereto. All said Owners shall be
subject to the penalties set forth in Article V of the Bylaws for non-payment of assessments rendered, levied, or
assessed in accordance therewith.
ARTICLE VI
RESTRICTIVE COVENANTS
Section 6.1. Residential Use. The Property and any Lots therein or thereon 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 the term is hereafter 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 writing 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, roofs, decks, patios,
stairs, windows, mail boxes, name plates, flag poles, lawn ornaments, trees, hedges, shrubbery, solar panels,
satellite dishes, antennae, shutters, awnings, doors, pavement, walkways, driveways, garages and/or garage
doors. In no event shall any of the following Structures be permitted to be erected, placed, painted, altered or
externally modified or improved on any Lot: play equipment; basketball goals; window boxes; tents;
greenhouses; skylights; fences; pools; hot-tubs; and banners.
Section 6.3. Laundry. No clothing, laundry or wash shall be aired or dried on any portion of the
Property within public view.
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Section 6.4. Sight 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. Maintenance. Other than as specifically and expressly set forth in Section 13.1 below, 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 vantage points. 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 (“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.
No signs advertising a Lot for sale, rent, or lease shall be permitted on said Lot until such time as all of
the Lots developed as a part of the Project have been sold by Declarant to an initial buyer. All signs advertising
a Lot for sale, rent, or lease shall be removed within three (3) days from the date of the conveyance of the Lot or
of the execution of the rental and/or lease agreement, as applicable. The design, color, message, and location of
any signs advertising a Lot for sale, rent, or lease shall be subject to the review and final approval of the
Homeowners Association, and no such sign shall be placed on said Lot without the prior written approval of the
Homeowners Association. No more than one (1) sign advertising a Lot for sale, rent, or lease shall be permitted
on said Lot.
Section 6.8. Animals. No animals, livestock or poultry of any kind shall be raised, bred or kept in any
Dwelling Unit or in the Common Areas or on the Property, except that pet dogs, pet cats or customary
household pets may be kept in a Dwelling Unit, provided that such pet is not kept, bred or maintained for any
commercial purpose, and does not create a nuisance. No more than two (2) such pets shall be permitted in any
Dwelling Unit unless prior approval and consent is obtained from the Board and the Board may delegate this
authority to the managing agent. Pets shall be taken outdoors only under leash or other restraint and while
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attended by its owner and an Owner shall be fully liable for any injury or damage to persons or property,
including the Common Areas, caused by his pet. The tethering of pets in any area does not constitute
“attended.” 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. The Board may adopt such other rules and
regulations regarding pets as it may deem necessary from time to time including, but not limited to, a
requirement that any Owner desiring to bring a pet on the Property shall deposit with the Board a security
deposit in an amount to be determined by the Board to cover any damage that may be caused by such pet to the
Common Areas. Any such security deposit shall be returned to the Owner when the pet is permanently
removed from the Property, except to the extent said deposit has been used to repair damage caused by such pet.
Any requirement for the depositing of such a security deposit shall not be deemed to release or in any way limit
an Owner’s responsibility and liability for injury and damage caused by his pets. Any pet, which, in the
judgment of the Board, is causing or creating a nuisance or unreasonable disturbance or noise, shall be
permanently removed from the Property within ten (10) days after written notice from the Board to the
respective Owner to do so.
Section 6.9. Trash Storage. 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 Owner’s garage except on days of trash collection. 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 Systems. 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 satellite dishes be placed as inconspicuously as
possible.
Satellite dishes will not exceed eighteen (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 in full force and effect.
Section 6.11. Painting. No person shall paint the exterior of any Dwelling Unit, Structure, or building,
or any portion thereof, a color different than the original color of said Dwelling Unit, Structure, 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.
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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 for longer than six (6) months after the commencement of
construction. In the event of fire, 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 of
Directors in writing. Absent approval from the Architectural Review Board to the contrary, all maintained,
repaired, or replaced roofs and other structure exterior shall be the same color and texture as the original roof
and other structure exterior.
Section 6.13. Fences. Except for any 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, mobile homes, 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. Towing. The Board of Directors shall have the right to tow any vehicle parked or kept in
violation of the covenants contained within this Article, at the vehicle owner’s sole expense.
Section 6.18. Garage Usage. Any conversion of any garage that will preclude the parking of vehicles
within that garage is prohibited. Owners shall keep their garages at all times in a manner and condition that will
permit the use of such garage for parking of at least two (2) conventional passenger vehicles, vans and/or trucks.
Section 6.19. Initial Construction and Marketing. The Declarant or its assigns, or any Designated
Builder, 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
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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 6.20. Holiday and Seasonal Decorations. Any holiday or seasonal decorations or
ornamentation that is placed on the exterior of a Dwelling Unit or Structure shall be first approved by the
Architectural Review Board. The time period during which such decorations and/or ornamentation shall be
permitted to be placed on the exterior of a Dwelling Unit or Structure shall be determined by the Architectural
Review Board, at its sole discretion.
Section 6.21. Window Adornments; Window Boxes. No decorations, adornments, or items including,
but not limited to, signs, placards, beverage containers, or posters shall be permitted to be placed in any window
of a Dwelling Unit or structure. Notwithstanding the foregoing, this provision shall not prevent the following
decorations and/or adornments from being placed in Dwelling Unit windows: curtains, drapes, blinds, candles,
lights, or plants. No window boxes containing flowers or any other vegetation shall be erected or attached to
any Dwelling Unit.
Section 6.22. Dusk to Dawn Coach Lights and Garage Lights. Each Owner shall maintain any and all
coach lights installed as a part of the initial construction of each Dwelling Unit or garage entrance lights 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 and garage entrance lights remain continuously operational from dusk to dawn.
Section 6.23. Parking of Vehicles in Driveways and On-Street Parking Spaces. No more than two (2)
conventional passenger vehicles, vans and/or trucks shall be parked in a driveway of or to a Lot at a time. No
more than four (4) total vehicles, vans and/or trucks shall be parked on a Lot, including the garage and the
driveway.
Section 6.25. 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.
Section 6.26. No Implied Waiver. The failure of the Board of Directors, the Architectural Review
Board, or the Developer to object to an Owner or another Person’s failure to comply with the covenants and
restrictions contained herein shall in no event be deemed a waiver by the Board of Directors, or any other
person having an interest herein, of its rights to object to the same and to seek compliance therewith in
accordance with the provisions of this Declaration.
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ARTICLE VII
RENTAL OR LEASE OF DWELLING UNITS
Section 7.1. Rental or Lease of Dwelling Unit Permitted. An Owner may rent or lease its Dwelling
Unit to no more than a single family unit of (6) six people and with a minimum of a (6) six month lease term.
Section 7.2. Written Rental Agreements Required. All rental and/or lease agreements for a Dwelling
Unit must be in writing and must be subject to the rules and regulations set forth in this Declaration and in the
other Association documents. Owners must provide the Association with a copy of every rental and/or lease
agreement.
Section 7.4. Sub-Leasing Prohibited. No subletting of a Dwelling Unit or any portion thereof shall be
permitted.
Section 7.5. Owner to Enforce Declaration. Every such rental and/or lease agreement must include a
provision stating that any failure by the tenant or lessee, its household members or guests, to comply with the
terms of this Declaration and/or the Bylaws shall be a default under the rental and/or lease agreement, and the
Owner shall be responsible for enforcing that provision.
Section 7.6. Fine for Owner’s Failure to Enforce Declaration. In the event that the Owner fails and/or
refuses to enforce any provision of this Declaration and/or the Bylaws against a tenant, lessee, occupant,
household member, or guest of said Owner’s Dwelling Unit, said Owner shall be subject to a fine in an amount
determined by the Board of Directors, at the Board of Directors’ sole discretion. In the event that the Owner
fails to pay said fine, the fine shall become a lien on the Owner’s Lot.
ARTICLE VIII
ARCHITECTURAL REVIEW BOARD
Section 8.1. 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 8.4, below.
During the Committee Period (as said term is hereafter defined), the Architectural Review Board will consist of
two (2) committees: (a) the “New Construction Committee” and the “Modification and Change Committee.”
The New Construction Committee and the Modification and Change Committee shall hereafter be collectively
referred to as the “Committees.” Upon expiration of the Committee Period (as said term is hereafter defined),
these committees will be dissolved and the Architectural Review Board will not be divided into committees.
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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.
Nothing contained in this Declaration or in the Articles of Incorporation or By-Laws will prohibit an
individual from serving on both committees simultaneously; however, membership on any one 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 8.2. 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 on the Architectural Review Board (after the Committee Period), shall
be made in the same manner as members are appointed or elected to the Board of Directors of the Association.
Section 8.3. 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
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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 8.4. 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 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 subject 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 8.5. 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
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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 8.6. 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 8.7. 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.
ARTICLE IX
EASEMENTS AND OTHER AREAS
Section 9.1. Emergency 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, fire, ambulance personnel and all similar persons, to enter upon the Property in
the exercise of the functions provided for by this Declaration, Articles, Bylaws and rules and regulations of the
Association, and in the event of emergencies and in the performance of governmental functions.
Section 9.2. General Easements. The Declarant hereby reserves unto itself and its assigns, any
governmental or municipal agency, and any public or private utility, a general easement upon all Lots for the
installation, maintenance, repair, and use of any drainage, utility, and sewer lines or infrastructure so as to
permit the installation, maintenance, repair, and use of all electrical, telephone, water, gas, sanitary and storm
sewer and other utility services, including all necessary lines, pipes, wires, cables, ducts, antenna, and other
facilities to serve any Dwelling Unit constructed on the Property. This general easement shall be on all areas of
a Lot not occupied by a Dwelling Unit, with the exception of areas covered by chimneys or patios. This general
easement shall not be exercised, after the conveyance of any Lot, in a manner that (i) unreasonably or adversely
affects any Dwelling Unit or portion thereof located upon such Lot, or (ii) unreasonably restricts the right of
ingress and egress to such Lot.
Section 9.3. Limitation on General Easement Rights. When not an emergency situation or a
governmental function, the rights accompanying the easements provided for in Section 9.1 of this Article shall
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be exercised only during reasonable daylight hours and then, whenever practicable, only after advance notice to,
any Owner, lessee, or tenant directly affected.
Section 9.4. 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 storm water 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 9.5. Ingress Egress Easement. The Declarant and its agents and employees, and any
Designated Builder and its agents and employees, shall have a right of ingress and egress, as required for
construction on and development of the Property and otherwise over (i) Common Areas and (ii) portions of any
Lots not occupied by a Dwelling Unit; provided, however, that any person or entity exercising such easement
rights upon a Lot shall promptly repair any resulting damage so that the Lot is restored to the condition in which
it existed immediately prior to the exercise of such easement rights.
Section 9.6. Drainage, Utility and Sewer Easements. Any Drainage, Utility and Sewer Easement (“DU
& SE”) shown on any Plat are created to provide (a) paths and courses for area and local storm drainage, either
over land or in adequate underground conduit, to serve the Property and adjoining ground and/or other drainage
infrastructure systems and (b) for the use by public and private utilities and local governments and their
agencies having jurisdiction over any storm and sanitary waste disposal system which may be designed to serve
the Property and adjoining lands, for the purpose of the installation and maintenance of sanitary and storm
sewers and (c) utility easements for the use of the Declarant, the Association, the Owners, and any municipal or
private utility companies for the installation and maintenance of mains, ducts, poles, lines, wires and other
utility facilities and infrastructure.
Section 9.7. Easements. Easements shown on the Plat are non-exclusive easements for the installation,
maintenance, and repair of public and private utilities.
Section 9.8. Reservation of Right 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
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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.
Section 9.9. 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 9.10. 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 (a) correcting, repairing or maintaining any
drainage, drainage infrastructure, utility infrastructure, grading or regrading, maintenance, landscaping, (b)
mowing, (c) erecting street intersection signs, directional signs, temporary promotional signs, entrance features,
lights and wall features, and (d) 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.
Section 9.11. Open Space. The Open Space portions of the Common Area are not dedicated to the
public and are not for use by the general public; instead, the Open Space portions of the Common Area are to be
used exclusively by Owners and their family members, guests, invitees, tenants, and lessees.
Section 9.12. Parking Areas and On-Street Parking Spaces. Parking Areas and On-Street Parking
Spaces are not dedicated to the public and are not to be used by the general public. Instead, Parking Areas are
to be used exclusively by Owners and their family members, guests, invitees, tenants, and lessees for the
parking of conventional passenger vehicles, vans and/or trucks. Furthermore, the On-Street Parking Space
appurtenant to a particular Owner’s Dwelling Unit shall be used exclusively by said Owner and its family
members, guests, invitees, tenants, and lessees for the parking of conventional passenger vehicles, vans and/or
trucks.
Section 9.13. Sidewalks. Except for sidewalks adjacent to public streets, that portion of the Common
Area occupied by Sidewalks are to be used exclusively by Owners and their family members, guests, invitees,
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tenants, and lessees, but the general public, as well, for pedestrian purposes in the manner in which sidewalks
are typically used.
Section 9.14. Private Streets. The surface of that portion of the Common Area occupied by Private
Streets is reserved for the use of Owners and their family members, guests, invitees, tenants, and lessees for
vehicular ingress and egress in the manner in which streets are customarily used. Except as provided in Section
9.12, the Private Streets shall not be used by Owners, their family members, guests, invitees, tenants, or lessees,
or any other person, for the parking of automobiles or vehicles of any nature or type.
Section 9.15. Water Features. Any water features designated on the Plat are not dedicated to the
public and are not for use by the general public; instead, said water features are for the exclusive use and/or
enjoyment of Owners and their family members, guests, invitees, tenants, and lessees. The Board of Directors
shall be responsible for drafting, proposing, and/or adopting rules relating to the use of said water features.
Such rules may include, but shall not be limited to, prohibitions against swimming, diving, wading, or fishing in
the water features.
The Association shall be responsible for maintaining any such water features.
ARTICLE X
PARKING
Parking of any type of vehicle in any Common Area is prohibited in areas other than areas specifically
identified as Parking Areas within Common Areas. 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 XI
PARTY WALLS
Section 11.1. 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
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law regarding party walls and liability for property damage due to negligence or willful acts or omissions shall
apply thereto.
Section 11.2. Sharing 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, tenants, lessees, 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 Party Wall, sharing equally the cost thereof, and each
individual Owner shall proceed forthwith to rebuild or repair the non-structural components of such Party Wall
in proportion to their respective uses of the Party Wall. Any and all such reconstruction and/or repairs shall be
completed immediately to 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
compliance 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 11.3. Repairs for Damage Caused by One (1) Owner. If any such Party Wall is damaged or
destroyed through the act of one (1) or more adjoining Owners, or their respective agents, families, households
guests, tenants or lessees (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 Party Wall,
then the Owner(s) of the Dwelling Unit(s) 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 11.2, above, without cost to the adjoining Owner.
Section 11.4. Other Changes. 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.
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Section 11.5. Right to Contribution Runs with the Lot. The right of any Owner to contribution from
any other Owner under this Article shall be appurtenant to the ownership of the Lot and shall pass to such
Owner’s successors in title.
Section 11.6. Dispute. In the event of a dispute between Owners 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 (1) of such
Owners addressed to the Association, the matter shall be submitted to the Board of Directors, who shall decide
the dispute pursuant to procedures established by the Board of Directors.
ARTICLE XII
COMMON BUILDING MATERIALS
Section 12.1. Sharing of Repair and Maintenance and Destruction by Fire or Other Casualty. If any
portion or part of the roof, guttering, freeze boards, face boards, brick, overhangs or other building materials
(“Common Building Materials”) of a building containing Dwelling Units which said materials are common and
shared with more than one (1) Owner are damaged or destroyed by fire or other casualty or by some cause other
than the act of one (1) of the adjoining Owners, its agents, tenants, lessees family, household or guests
(including ordinary wear and tear and deterioration from lapse of time), then in such event all of the Owners
owning Dwelling Units in the building shall proceed forthwith to rebuild or repair such Building Materials,
sharing equally the cost thereof. Any and all such reconstruction and/or repairs shall be completed immediately
to 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 Building Materials,
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 the Building Materials, 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
compliance 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 12.2. Repairs for Damage Caused by One (1) Owner. If any part or portion of the Building
Materials of a building containing Dwelling Units is damaged or destroyed through the act of one (1) or more
Owners owning a Dwelling Unit in said building, or their respective agents, families, households guests, tenants
or lessees (collectively the “Offending Parties”), whether or not such act is negligent or otherwise culpable, so
as to deprive another Owner owning a Dwelling unit in said building of the full use and enjoyment of the
Building Materials, then the Owner(s) of the Dwelling Unit(s) from whence the Offending Parties committed
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the act that caused the damage or destruction, shall forthwith proceed to rebuild and repair the same, in the
manner required under Section 12.1, above, without cost to non-offending Owners.
Section 12.3. Other Changes. 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 the
Building Materials or any part thereof shall first obtain the written consent of all of the Owners owning
Dwelling Units in the building, whose consent shall not be unreasonably withheld. If any said 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 12.4. Right to Contribution Runs with the Lot. The right of any Owner to contribution from
any other Owner under this Article shall be appurtenant to the ownership of the Lot and shall pass to such
Owner’s successors in title.
Section 12.5. Dispute. In the event of a dispute between Owners with respect to the repair or rebuilding
of the f or any part thereof, or with respect to the sharing of the cost thereof, then upon written request of one
Building Materials (1) of such Owners addressed to the Association, the matter shall be submitted to the Board
of Directors, who shall decide the dispute pursuant to procedures established by the Board of Directors.
ARTICLE XIII
POWERS AND DUTIES OF THE ASSOCIATION
Section 13.1. Discretionary Powers and Duties. The Association shall have the following powers and
duties which may be exercised in its discretion:
(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
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shall have a duty to enforce the covenants by an action at law or in equity if, in its or their
opinion and sole discretion, 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 Private 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 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;
(d) to mow and re-sow or re-seed or re-sod lawn areas and fertilize lawn areas within the Common
Areas;
(e) 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 street lights located in the Common Areas;
(f) 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 IX herein;
(g) 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;
(h) 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;
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(i) to retain as an independent contractor or employee a manager of the Association and such other
employees or independent contractors as the Board of Directors deems necessary, and to
prescribe the duties of employees and scope of services of independent contractors;
(j) 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, including without limitation (i)
maintenance and repairs of all storm water drainage infrastructure, including without limitation
retaining walls, and (ii) all utility repairs, and erosion control repairs.
(k) 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
Owner 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;
(l) 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;
(m) 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
(n) 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 13.2. Mandatory Powers and Duties. The Association shall exercise the following powers,
rights and duties:
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(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 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, private streets and access easements existing on
the Property or shown on any Plat, and other 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 Two Million Dollars ($2,000,000.00)
for bodily injury and property damage for any single occurrence;
(e) to provide for the maintenance and repair of any and all (i) Common Areas and improvements
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, storm water 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) any Private Streets or access
easements existing on the Property or shown on any Plat; (iv) facilities, including but not limited
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to fences and signs authorized by the Association and erected on any easements granted to the
Association, and (v) 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 arrange for plowing and/or removal of snow from (i) Private Streets located within Common
Areas, and (ii) Sidewalks and community walkways located within Common Areas. It shall be
each Owner’s responsibility, however, to remove snow from (i) the walkway extending from the
community walkways to the front door of the Owner’s Dwelling Unit, and (ii) the driveway
appurtenant to said Owner’s Lot.
(g) to mow, trim, and fertilize grass located on each Lot; provided, however, that the Association
shall not be required to maintain, replace, irrigate, or fertilize any flowers, plants, trees, shrubs,
or any landscaping other than grass;
(h) to paint all wood exterior trim, but shall not be responsible for any other maintenance of the
exterior of a Dwelling Unit; and
(i) to pay all proper bills, taxes, charges and fees on a timely basis.
Section 13.3. Board of Directors 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 of Directors 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
Bylaws.
Section 13.4. 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 13.5. 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, bad faith, or gross negligence. It is intended that the directors and officers of the
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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 13.6. 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 to any such Indemnitee the reasonable costs of
settlement or judgment rendered in any action, suit or proceedings, if it shall be found by a majority of the
Owners that such director, officer, or member of the Architectural Review Board was not guilty of gross
negligence or misconduct. In making such findings and notwithstanding the adjudication in any action, suit or
proceeding against a director, officer, or member of the Architectural Review Board, such director, officer, or
member of the Architectural Review Board shall be considered or deemed to be guilty of or liable for
negligence or misconduct in the performance of his duties where, acting in good faith, such director, 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 the Managing Agent or any officer or employee thereof, or any accountant,
attorney or other person, firm or corporation employed by the Association to render advice or service unless
such director, officer, or member of the Architectural Review Board had actual knowledge of the falsity or
incorrectness thereof; nor shall a Director be deemed guilty of or liable for negligence or misconduct by virtue
of the fact that he failed or neglected to attend a meeting or meetings of the Board of Directors. The costs and
expenses incurred by an Indemnitee in defending any action, suit or proceeding may be paid by the Association
in advance of the final disposition of such action, suit or proceeding upon receipt of an undertaking by or on
behalf of the Indemnitee to repay the amount paid by the Association if it shall ultimately be determined that the
Indemnitee is not entitled to indemnification or reimbursement as provided in this Section.
ARTICLE XIV
RIGHTS OF MORTGAGEES
Unless a right is waived by the appropriate Federal Agency, all Mortgagees shall have the following
rights:
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Section 14.1. Veterans Administration. If any of the Lots are security for a loan guaranteed by the
Veteran’s Administration (the “VA”) and if there is a Class B Member:
(a) The Declarant must provide a copy of all amendments to this Declaration to the VA. The
Association may not make any Material Amendment or take any Extraordinary Action as such
terms are defined in Article XVI without the approval of the VA.
(b) Eligible Mortgagees shall have the following rights;
i. the right to inspect Association documents and records on the same terms as the
Members;
ii. notice of any Material Amendment to the Association documents;
iii. notice of any Extraordinary Action of the Association;
iv. notice of any property loss, condemnation or eminent domain proceeding affecting the
Common Area resulting in a loss greater than ten percent (10%) of the annual budget or
affecting any Lot insured by the Association in which the Eligible Mortgagee has an
interest;
v. notice of any termination, lapse or material modification of an insurance policy held by
the Association;
vi. notice of any default by an Owner of a Lot subject to a mortgage held by the Eligible
Mortgagee in paying assessments or charges to the Association which remains uncured
for sixty (60) consecutive days;
vii. notice of any proposal to terminate the Declaration or dissolve the Association at least
thirty (30) days before any action is taken;
viii. the right of a majority of the Eligible Mortgagees to demand professional management;
and
ix. the right of a majority of the Eligible Mortgagees to demand an audit of the Association’s
financial records.
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Section 14.2. Federal Housing Authority. If any of the Lots are security for a loan insured by Federal
Housing Authority (the “FHA”) and if there is a Class B Member, the following actions will require the prior
approval of the FHA:
(a) annexation of additional properties;
(b) mergers, consolidations and dissolution of the Association;
(c) mortgaging or conveyance of the Common Area; and
(d) amendment of this Declaration.
Section 14.3. Freddie Mac. Assuming that Mortgagees may securitize pools of mortgages, including
mortgages on Lots and/or Dwelling Units in the Community, with the Federal Home Loan Mortgage
Corporation a/k/a Freddie Mac (“Freddie Mac”), the following requirements shall apply to all Lots and
Dwelling Units in the Community:
(a) Unless at least two-thirds (2/3) of the first Mortgagees (based on one vote for each first mortgage
owned) or two-thirds (2/3) of the Class A Members have given their prior written approval, the
Association shall not take any of the following actions:
i. by act or omission seek to abandon, partition, subdivide, encumber, sell or transfer the
Common Area. The re-subdivision and/or adjustment of boundary lines of the Common
Area and the granting of easements by the Association shall not be deemed a transfer or
subdivision within the meaning of this clause;
ii. change the method of determining the obligations, assessments, dues, or other charges
that may be levied against an Owner;
iii. by act or omission waive or abandon any scheme of regulations or their enforcement
pertaining to the architectural design or the exterior appearance of Dwelling Units and
their appurtenances, the exterior maintenance of Dwelling Units and their appurtenances,
the maintenance of the Common Area, common fences and driveways, and the upkeep of
lawns and plantings in the Property;
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iv. fail to maintain fire and extended coverage insurance on insurable parts of the Common
Area or other Association property on a current replacement cost basis in an amount not
less than one hundred percent (100%) of the insurable value, based on current
replacement costs, not including land value; and
v. use hazard insurance proceeds for losses to the Common Area or other Association
property for anything other than the repair, replacement or reconstruction of such
property.
(b) A Mortgagee shall be given written notification from the Association of any default in the
performance of any obligation under this Declaration or related Association documents by the
Owner of a Lot that is the security for the indebtedness due the Mortgagee which is not cured
within sixty (60) days after the Owner’s receipt of notice of the default.
A Mortgagee may, jointly or singly, pay taxes or other charges which are in default and which may or
have become a charge against the Common Area and may pay overdue premiums on hazard insurance policies
or secure new hazard insurance coverage upon the lapse of a policy for such Common Area. The Mortgagee
making such payments shall be owed immediate reimbursement therefor from the Association.
The assessments imposed by the Association shall include an adequate reserve fund for maintenance,
repairs and replacements for those parts of the Common Area which may be replaced or require maintenance on
a periodic basis. Such reserves shall be payable in regular installments rather than by Special Assessment.
Section 14.4. Fannie Mae. Assuming that Mortgagees may secure funding for mortgage loans by
selling mortgage loans, including mortgages on Lots and/or Dwelling Units in the Community, to the Federal
National Mortgage Association a/k/a Fannie Mae (“Fannie Mae”), the following requirements shall apply to all
Lots and Dwelling Units in the Community:
(a) A Mortgagee shall be given written notification from the Association of the following:
i. any condemnation or casualty loss that affects either a material portion of the Common
Area or the Lot that is the security for the indebtedness due the Mortgagee;
ii. any default in the performance of any obligation under this Declaration or related
Association documents by the Owner of a Lot that is the security for the indebtedness due
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the Mortgagee which is not cured within sixty (60) days after the Owner’s receipt
of notice of the default;
iii. any lapse, cancellation or material modification of any insurance policy or fidelity bond
maintained by the Association;
iv. any proposed action that would require the consent of a specified percentage of
Mortgagees.
(b) Provided that improvements have been constructed in the Common Area and provided that a
Mortgagee gives written notice to the Association that it has relied on the value of the
improvements in making a loan on a portion or all of the Property, then subject to the right of the
Declarant to annex additional areas as provided in Article XVI herein, unless at least
sixty-seven percent (67%) of the Members and Mortgagees representing at least fifty-one percent
(51%) of those Lots that are subject to mortgages or deeds of trust have given their prior written
approval, the Association shall not add or amend any material provision of this Declaration or
related Association documents concerning the following:
i. voting rights of any Member;
ii. assessments, assessment liens, or subordination of such liens;
iii. reserves for maintenance, repair and replacement of those parts of the Common
Area that may be replaced or require maintenance on a periodic basis;
iv. responsibility for maintenance and repair of the Property;
v. reallocation of interests in the Common Area or rights to its use, except as
provided in Article III and Article IV herein;
vi. converting Lots into Common Area or vice versa;
vii. annexation or withdrawal of property to or from the Property (other than
annexation of those properties referred to in Article XVI);
viii. insurance or fidelity bonds;
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ix. leasing of Dwelling Units;
x. imposition of any right of first refusal or similar restriction on the right of an
Owner to sell, transfer or otherwise convey its property;
xi. a decision by the Association to establish self-management when professional
management has been required previously by a Mortgagee;
xii. restoration or repair of the Property after a hazard damage or partial
condemnation;
xiii. any provisions that are for the express benefit of Mortgagees; and
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 14.5. 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.
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(d) Notice. As set forth in this Article, Mortgagees shall have the right, upon request, to receive
notice of (i) the decision of the Owners to abandon or terminate the Planned Unit Development
(as defined by Fannie Mae); (ii) any material amendment to the Declaration, the Bylaws or the
Articles; and (iii) 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) 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.
(g) Damage 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 XV
RESALE OF DWELLING UNIT
Until such time as each of the townhomes in the project is sold by Developer to an initial third party
buyer, any Owner wishing to employ or retain a broker and/or realtor to sell, convey, transfer, lease, and/or rent
a Dwelling Unit shall list said property for sale, rent or lease with _________________________.
ARTICLE XVI
GENERAL PROVISIONS
Section 16.1. Enforcement and Declarant’s Exemption. 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
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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 any one 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.
Notwithstanding anything in this Declaration to the contrary, (a) the Declarant and any Designated
Builder reserves a right to carry on construction, development, and sales activities, to place equipment,
machinery, supplies and signs, construct and maintain models or other structures, and park vehicles of
prospective or actual purchasers, lessees, or employees and personnel of the Declarant, on any part of the
Property owned by the Declarant, a Designated Builder, or the Association and (b) none of the terms,
conditions, provisions, and restrictions set forth in this Declaration shall be construed, in any manner, to limit
any activity of the Declarant or a Designated Builder in the construction, development, and sales activities
pertaining to the Property.
Section 16.2. Severability; Headings; Conflict. Invalidation of any one 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 and this
Declaration, the Declaration shall control; in the case of any conflict between this Declaration and the Bylaws,
this Declaration shall control.
Section 16.3. 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 16.4. 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
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notice and quorum requirements for Material Amendments and Extraordinary Actions contained
in the By-Laws, such vote including the vote of a majority of the Class A Members present and
voting, in person or by proxy, at such meeting.
(b) Material Amendment. A Material Amendment includes adding, deleting or modifying any
provision regarding the following:
i. assessment basis or assessment liens;
ii. any method of imposing or determining any charges to be levied against individual
Owners;
iii. reserves for maintenance, repair or replacement of common area improvements;
iv. maintenance obligations;
v. allocation of rights to use Common Areas except as provided in Article III and Article
IV herein;
vi. any scheme of regulation or enforcement of standards for maintenance, architectural
design or exterior appearance of improvements on Lots;
vii. reduction of insurance requirements;
viii. restoration or repair of Common Area improvements;
ix. the annexation or withdrawal of land to or from the Property other than annexation or
withdrawal of those properties referred to in this Article XVI;
x. voting rights;
xi. restrictions affecting leasing or sale of a Lot; or
xii. any provision which is for the express benefit of Mortgagees.
(c) Extraordinary Action. Alternatively, an Extraordinary Action includes:
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i. merging or consolidating the Association (other than with another non-profit entity
formed for purposes similar to this Association);
ii. determining not to require professional management if that management has been
required by the Association documents, a majority of eligible Mortgagees or a majority
vote of the Members;
iii. expanding the Association to include land not previously described as annexable which
increases the overall land area of the project or number of Lots by more than ten percent
(10%);
iv. abandoning, partitioning, encumbering, mortgaging, conveying, selling or otherwise
transferring the Common Area except for (a) granting easements; (b) dedicating Common
Area as required by a public authority; (c) re-subdividing or adjusting the boundary lines
of the Common Area or (d) transferring Common Area pursuant to a merger or
consolidation with a non-profit entity formed for purposes similar to the Association;
v. using insurance proceeds for purposes other than reconstruction or repair of the insured
improvements; or
vi. making capital expenditures (other than for repair or replacement of existing
improvements) during any period of twelve (12) consecutive months costing more than
twenty percent (20%) of the annual operating budget.
(d) Class Amendments. Any Material Amendment which changes the rights of any specific class of
Members must be approved by Members entitled to cast at least fifty-one percent (51%) of the
votes of all Members of such class present and voting, in person or by proxy, at a meeting held in
accordance with the requirements contained in the Byl aws.
(e) Material Amendment and/or Extraordinary Actions Amendments. The following Material
Amendments and Extraordinary Actions must be approved by Members entitled to cast at least
sixty-seven percent (67%) of the total authorized votes of all Members of the Association,
including at least a majority of the total authorized votes entitled to be cast by Class A Members:
i. termination of this Declaration or the termination of the Project;
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ii. dissolution of the Association except pursuant to a consolidation or merger; and
conveyance of all Common Areas.
(f) VA Amendments. If the VA has guaranteed any loans secured by a Lot, so long as there is a
Class B Member all Material Amendments and Extraordinary Actions must have the approval of
the VA.
Section 16.5. Amendment. Amendments other than Material Amendments or Extraordinary Actions
shall be approved by at least sixty-seven percent (67%) of the votes entitled to be cast by all Members present
and voting, in person or by proxy, at any duly called and 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 16.6. 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/or a Designated Builder 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 16.7. 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 any one 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 16.8. Casualty 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 and shall maintain public liability insurance providing coverage of at least Two Million Dollars
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($2,000,000.00) for bodily injury and property damages for any single occurrence. 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 that Owner as a Special Assessment and shall be immediately due and payable upon demand.
Section 16.9. Withdrawable Real Estate.
(a) The Declarant shall have the unilateral right, without the consent of the Class A Members or any
Mortgagee, to execute and record an amendment to this Declaration withdrawing any portion of
the Property on which Dwelling Units have not been constructed; provided, however, that not
more than five (5) years have lapsed since the date of the recordation of this Declaration.
(b) Upon the dedication or the conveyance to any public entity or authority of any portion of
the Property for public street purposes, this Declaration shall no longer be applicable to
the land so dedicated or conveyed.
Section 16.10. Management Contracts. For such time as the Declarant has Class B membership status,
the Declarant shall have the right to enter into professional management contracts on behalf of the Association
for the management of the Property for terms not to exceed one (1) year; provided, however, that the
Association shall have the right to terminate such contracts, with or without cause, upon thirty (30) days’
written notice to the other party and without payment of a termination fee.
Section 16.11. Dissolution. The Association may be dissolved with the assent given in writing and
signed by at least two-thirds (2/3) of each class of Members and in accordance with Article 13 of the Act. Upon
dissolution of the Association, other than incident to a merger or consolidation, the assets of the Association,
both real and personal, shall be offered to an appropriate public agency to be devoted to purposes and uses that
would most nearly reflect the purposes and uses to which they were required to be devoted by the Association.
In the event that such offer of dedication is refused, such assets shall be then offered to be granted, conveyed or
assigned to any non-profit corporation, trust or other organization devoted to similar purposes and in accordance
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with Indiana law. Any such dedication or transfer of the Common Area shall not be in conflict with then-
governing zoning ordinances or the designation of the Common Area as “open space.”
IN WITNESS WHEREOF, Declarant has executed this Declaration of Covenants, Conditions and
Restrictions for The Cottage at Carmel Townhomes this ____ day of _________________, 200____.
GUILFORD COMMONS, LLC,
an Indiana limited liability company.
By: ______________________________
(written)
______________________________
(printed)
Its: Managing Member
STATE OF INDIANA )
) SS:
_____________ COUNTY )
Before me, a Notary Public in and for said County and State, personally appeared Guilford Commons,
LLC, by _____________________, its ____________________, who acknowledged the execution of the
foregoing document on behalf of Guilford Commons, LLC.
WITNESS my hand and Notarial Seal this ______ day of ________________, 200___.
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___________________________________
(written)
___________________________________
My Commission expires: (printed) NOTARY PUBLIC
____________________ Resident of ___________________ County
This instrument prepared by: James R. Schrier of the firm of REILING TEDER & SCHRIER, LLC, 415 Columbia Street,
Suite 3000, P. O. Box 280, Lafayette, IN 7902-0280. Telephone: (765) 423-5333 E-Mail Address: jrs@rtslawfirm.com
I affirm, under the penalties for perjury, that I have taken reasonable care to redact each Social Security number in this
document, unless required by law. James R. Schrier
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EXHIBIT A
Legal Description
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