HomeMy WebLinkAboutDeclarations of Covenants, Conditions, & Restrictions_Recorded 12-21-06 „wniLTON County Recorder IN
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DECLARATION OF COVENANTS,CONDITIONS
AND RESTRICTIONS FOR THE MONON & MAIN
THIS DECLARATION OF COVENANTS, CONDITIONS ANp RESTRICTIONS
FOR THE MONON & MAIN (the "Declaration”) is made as of this?� day of September ,
2006 by MONON & MAIN,LLC,an Indiana limited liability company(the "Declarant").
RECITALS:
WHEREAS, the Declarant is the owner of certain real property located at Carmel,
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 has deemed it desirable for the efficient preservation of the
values of the Community to create an association to be known as the Monon & Main
Homeowners Association, Inc., an Indiana not-for-profit corporation (the "Association") to
which shall be delegated and assigned the powers of owning, maintaining and administering the
common areas and facilities, administering and enforcing the covenants and restrictions made in
and pursuant to this Declaration and collecting and disbursing the assessments and charges
hereafter created.
NOW, THEREFORE, the Declarant, for and in consideration of the premises and the
covenants contained herein, grants, establishes and conveys to each owner of each Lot (as herein
defined), mutual, non-exclusive rights, privileges and easements of enjoyment on equal terms
and in common with all other owners of Lots in and to the use of any common areas and
facilities; and further, the Declarant declares that the Property shall be held, transferred, sold,
conveyed and occupied subject to the covenants, conditions, restrictions, reservations,
easements, charges and liens hereinafter set forth, which are for the purpose of protecting the
value and desirability of, and shall run with, the Property and be binding on all parties having
any right, title or interest in the Property or any part thereof, their respective successors and
assigns, and shall inure to the benefit of each owner thereof.
'Declaration of Covenants,Conditions and Restrictions Page 2
ARTICLE I
DEFINITIONS
Section 1.1. "Architectural Review Committee" or "ARC" means the committee
appointed and acting from time to time in accordance with the provisions of Article VII below.
Section 1.2. "Association" shall mean and refer to the Monon & Main Homeowners
Association, Inc., an Indiana not-for-profit corporation, its successors and assigns.
Section 1.3. "Common Area" or "Common Areas" shall mean and refer to all real
property (including the improvements thereto) owned by the Association for the common use
and enjoyment of the Members, and shall include all of the Property which is shown on such
Plat and/or as described herein, and which is not part of a Lot. 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 and shall comprise four components; namely:
(a) private streets comprising the streets identified on the Plat as
and (collectively, the"Private Streets");
(b) concrete sidewalks located adjacent to the Private Streets and in areas
between buildings and adjacent to buildings (the"Sidewalks");
(c) areas specifically identified as parking areas, located adjacent to Private
Streets and between buildings (the "Parking Areas"). Parking Areas are further
described and defined in Article IX below; and
(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").
Section 1.4. "Declarant" shall mean and refer to Monon & Main, LLC, an Indiana
limited liability company, and its successors or assigns.
Section 1.5. "Declaration" shall mean and refer to this Declaration of Covenants,
Conditions and Restrictions for Monon & Main, which is to be recorded in the Office of the
Recorder of Hamilton County, Indiana.
Section 1.6. "Development Period" shall mean the period of time during which
Declarant owns at least one(1)Lot.
Section 1.7. "Dwelling Unit"shall mean and refer to any improvement to the Property
intended for any type of independent ownership for use and occupancy as a residence by a single
household and shall,unless otherwise specified, mean townhomes.
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Section 1.8. "Improvements" shall mean all structures and appurtenances thereto of
every type and kind, including but not limited to, buildings, walkways, sprinkler pipes, roads,
driveways, fences, screening walls, block walls, retaining walls, awnings, patio covers, stairs,
decks, landscaping, antennae, satellite dishes, solar equipment, hedges, windbreaks, pools, spas,
recreational equipment, trampolines, entry gates, if any, planted trees and shrubs, poles, and
signs.
Section 1.9. "Lot" shall mean and refer to any discrete plot of land created by and
shown on a Plat upon which a Dwelling Unit is intended to be constructed in accordance with
applicable zoning ordinances; provided, however, that where a Dwelling Unit (i) is separated
from an adjacent Dwelling Unit by a Party Wall, or (ii) 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 supercede the boundary lines
for Lots shown on any Plat or part thereof.
Section 1.10. "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 1.11. "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 1.12. "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 X below.
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Section 1.13. "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 1.14. "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.
ARTICLE III
VOTING RIGHTS
Section 3.1. Classes. The Association shall have two (2) classes of voting membership
as follows:
Class A: 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 five (5) 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(the "Applicable Date"):
(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.
Section 3.2. Multiple Ownership Interests. If more than one (1) person or entity
holds an ownership interest in any Lot, the vote for such Lot shall be exercised as the owners of
the Lot among themselves determine and may be exercised by any one (1) of the people or
entities holding such ownership interest, unless any objection or protest by any other holder of
such ownership interest is made prior to the completion of a vote, in which case the vote for such
membership interest shall not be counted, but the Member whose vote is in dispute shall be
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counted as present at the meeting for quorum purposes if the protest is lodged at such meeting. In
no event shall more than one (1) vote be cast with respect to any Lot.
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, occupants
and guests thereon, including, without limitation, the imposition of fines for the violation
thereof
(c) the right of the Association to suspend the voting rights, the right to run
for office within the Association, and rights of a Member to the use of any nonessential
services offered by the Association, to the extent that access and the provision of utilities
to the Lot through the Common Area are not precluded, for any period during which any
assessment against such Member's Lot remains unpaid or for a period not to exceed sixty
(60)days for any infraction of its published rules and regulations;
(d) the right of the Association at any time, or upon dissolution of the
Association, and consistent with the then-existing zoning and subdivision ordinances of
the City of Carmel (the "City") and/or Hamilton County, Indiana (the "County") and
consistent with its designation of the Common Area as "open space", to transfer all or
any part of the Common Area to an organization conceived and organized to own and
maintain common open space, or, if such organization will not accept such a transfer,
then to the City and/or County (herein sometimes collectively referred to as the "Local
Governing Authority") or other appropriate governmental agency, or, if such a transfer is
declined, then to another entity in accordance with the laws governing the same, for such
purposes and subject to conditions as may be agreed to by the Members. Except in the
case of dissolution, any such transfer shall have the assent of at least two-thirds (2/3) of
each class of Members entitled to vote and who are voting in person or by proxy at a
meeting duly called for this purpose at which a quorum is present, written notice of which
having been sent to all Members not less than twenty-five (25) days nor more than fifty
(50) days in advance of the meeting setting forth the purpose of the meeting. Upon such
assent and in accordance therewith, the officers of the Association shall execute the
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necessary documents. The re-subdivision or adjustment of the boundary lines of the
Common Area and the granting of easements by the Association shall not be deemed a
transfer within the meaning of this Article;
(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 Association to lease part or all of the Common Area per
the terms and conditions of a lease acceptable to and approved and authorized by the
Board of Directors of the Association and executed for and on behalf of the Association
by the President of the Association;provided however that such lease(s)must:
(i) be only to non-profit organizations;
(ii) prohibit assignment and subleasing;
(iii) require the prior, written approval of the Association by and
through the Board of Directors of the Association of uses of the Common Area
and facilities, which must be in accordance with this Declaration;
(iv) be consistent with the then-existing ordinances of the Local
Governing Authority; and
(v) be consistent with the open space designation of the Common
Area;
(g) 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;
(h) all rights reserved by the Declarant in Article VIII hereof and
(i) 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 its board of directors (the "Board of Directors"),
may exercise these rights without the need for any approval from any Member, 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 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 its Lot, the rental agreement shall
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contain specific conditions which require the tenant to abide by all Association covenants, rules
and regulations, and any Owner desiring to rent a Lot further covenants that the tenant will be
provided a complete set of all Association covenants, rules and regulations.
ARTICLE V
ASSESSMENTS
Section 5.1. Creation of the Lien and Personal Obligation for Assessments. Each
Owner of any Lot, except the Declarant, by acceptance of a deed therefore, whether or not it
shall be so expressed in any such deed or other instrument of conveyance, is deemed to covenant
and agree to pay to the Association: (i) Annual Assessments (as hereinafter defined), (ii) Special
Assessments (as hereinafter defined), and any other amounts as may be provided for hereunder
to be due from any Owner in connection with his, her or its ownership of a Lot in the
Community. Such assessments are to be established and collected as hereinafter provided. The
Association's Annual Assessments and Special Assessments, together with interest thereon and
costs of collection thereof, as hereinafter provided, shall be a charge on each applicable Owner's
Lot (excluding Lots owned by the Declarant) and shall be a continuing lien upon the Lot against
which each assessment is made. Each such assessment, together with interest, costs, and
reasonable attorneys' fees, shall also be the personal obligation of the person who was the Owner
of such Lot at the time the assessment fell due and shall not be the personal obligation of a
successor in interest unless expressly assumed by such successor. The Annual Assessments and
Special Assessments, when assessed upon resolution of the Board of Directors for each year,
shall become a lien on the Lot in the amount of the entire Annual Assessment or Special
Assessment, but shall be payable in equal installments, collected on a monthly, bi-monthly,
quarterly, semi-annual or annual basis, as determined by the Board of Directors.
Section 5.2. Purpose of Assessment. The assessments levied by the Association shall be
used for the following purposes:
(a) the improvement, maintenance, snow removal and repair of all Common
Areas including the Private Streets, the Sidewalks, the Parking Areas, and the Open
Space;
(b) the maintenance, repair, irrigation, and fertilizing of all landscaping
located within the Common Area including, without limitation, trees, lawns, shrubbery,
and other plantings;
(c) to paint and maintain the siding and exterior wood trim of the Dwelling
Units;
(d) to fulfill the duties of the Association specified in Article XI below; and
(e) to carry out such other purposes as the Board of Directors may, in its sole
discretion, determine to be appropriate.
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Section 5.3. Establishment of Annual Assessment.
(a) The Association must levy in each of its fiscal years an annual assessment
(the "Annual Assessment"), against each Lot. The amount of such Annual Assessment
shall be established by the Board of Directors, subject to the limitations imposed by
Section 5.4, below, and written notice of such shall be sent to every Owner at least thirty
(30) days in advance of the commencement of each Annual Assessment period. The
Annual Assessment shall become applicable as to all Lots (as shown on a recorded
subdivision plat) on the first day of the month following the first conveyance of a Lot to
an Owner who is not the Declarant. The first Annual Assessment shall be adjusted
according to the number of months remaining in the calendar year.
(b) The amount of the Annual Assessment shall be determined by the Board
of Directors according to its estimate of the cost of providing services or rights of use
which are common to all of the Lots.
Section 5.4. Basis and Maximum Annual Assessment. Until January 1 of the year
immediately following conveyance of the first Lot to an Owner other than the Declarant, the
maximum Annual Assessment shall be ($ ).
(a) From and after January 1 of the year immediately following the first
conveyance of a Lot to an Owner other than the Declarant, the maximum Annual
Assessment shall increase, effective January 1 of each year,without the need for a vote of
the Members, by an amount equal to (i) the anticipated increase in costs of insurance,
taxes, snow removal, recycling, trash and waste removal, plus (ii) an amount equal to the
amount of the prior year's Annual Assessment times ten percent(10%).
(b) The Board of Directors may determine not to increase the maximum Annual
Assessment to the full extent of the automatic increase provided by subparagraph (a) of
this Section, in which case the Board of Directors may determine to increase the Annual
Assessment by any lesser amount.
(c) From and after January 1 of the year immediately following the first
conveyance of a Lot to an Owner other than the Declarant, the maximum Annual
Assessment may be increased above that established by subparagraph (a) annually,
provided that, to be effective, any such change shall have the assent of more than fifty
percent(50%)of the votes of each class of Members who are entitled to vote and who are
voting in person or by proxy at a meeting duly called for this purpose at which a quorum
is present, written notice of which (setting forth the purpose of the meeting) shall be sent
to all Members not less than thirty(30) days nor more than sixty (60) days in advance of
the meeting.
(d) The Declarant shall pay to the Association until the Applicable Date, an
amount equal to the difference, if any, between the annual expenditures of the
Association made pursuant to Article V, herein and the aggregate amount of the Annual
Assessments collected by the Association. Any such amounts paid by the Declarant shall
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be considered a loan to the Association and shall be repaid by the Association on or
before the Applicable Date. Provided however, Declarant shall not be obligated to fund
the Association reserves.
Section 5.5. Special Assessments. In addition to the Annual Assessment authorized
above, the Association may levy, in any assessment year, a special assessment applicable to that
year only for the purpose of defraying, in whole or in part, the cost of any construction,
reconstruction, repair or replacement of capital improvements upon the Common Area, including
the fixtures and personal property related thereto, or for any other specified purpose (the "Special
Assessment"). Any such Special Assessment shall be levied against all of the Lots which benefit
from the construction, reconstruction, repair or replacement of capital improvements giving rise
to the Special Assessment, pro rata according to each Lots benefit, as reasonably determined by
the Board of Directors, which determination shall be final. The amount of the Special
Assessment shall be the same for each Lot. To be effective, any such assessment shall have the
assent of more than two-thirds (2/3) of the votes of each class of Members who are entitled to
vote and who are voting in person or by proxy at a meeting duly called for this purpose at which
a quorum is present, written notice of which setting forth the purpose of the meeting having been
sent to all members not less than thirty (30) days nor more than sixty(60) days in advance of the
meeting.
Section 5.6. Quorum for any Action Authorized Under Sections 5.4 or 5.5. At the
first calling of a meeting under Section 5.4 or Section 5.5 of this Article, the presence at the
meeting of Members or proxies entitled to cast sixty percent (60%) of all the votes of each class
of Members shall constitute a quorum. If the required quorum does not exist at any such meeting,
another meeting may be called subject to the notice requirements set forth in Section 5.4 and
Section 5.5 and to applicable law, and the required quorum at any such subsequent meeting shall
be one-half(1/2) of the required quorum at the preceding meeting. No such subsequent meeting
shall be held more than sixty(60)days following the preceding meeting.
Section 5.7. One Time Assessment. Upon the closing of the initial conveyance of a
Lot to an Owner other than the Declarant, the purchaser of such Lot shall pay to the Association,
in addition to any other amounts then owed or due to the Association, as a contribution towards it
working capital and startup fund, in an amount equal to two (2) months Annual Assessment, and
a start-up fee in the amount of fifty dollars ($50.00), which payment shall be non-refundable
and shall not be considered as an advance payment of any other assessment or other charge
otherwise owed the Association with respect to such Lot. Such working capital and startup
funds shall be held and used by the Association for payment of, or reimbursement to Declarant
for advances made to pay expenses of the Association for the early period of the operation of
the Association and the Property, to enable the Association to have cash available to meet
unforeseen expenditures, or to acquire addition equipment or services deemed necessary by the
Board of Directors.
Section 5.8. Rate of Assessment. The Annual Assessment shall be fixed at a uniform
rate and due and owing for all Lots, except for Lots owned by the Declarant, and the Special
Assessments shall be fixed at a uniform rate and due and owing for all Lots, except for
unoccupied Lots owned by the Declarant.
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Section 5.9. Declarant Exempt. Subject to the terms of Section 5.4 (d) herein,
notwithstanding anything in this Declaration to the contrary, under no circumstances shall the
Declarant be liable for or obligated to pay any Annual Assessments, Special Assessments, or
One-Time Assessments.
Section 5.10. Notice of Assessment and Certificate. Written notice of the Annual
Assessments and any Special Assessments shall be sent to every Member. The due dates for
payment of the Annual Assessments and any Special Assessments shall be established by the
Board of Directors. The Association shall, upon demand at any time, furnish a certificate in
writing signed by an officer or authorized agent of the Association setting forth whether the
assessments on a specified Lot have been paid. A reasonable charge may be made by the Board
for the issuance of these certificates. Such certificates shall be conclusive evidence of payment
of any assessment therein stated to have been paid.
Section 5.11. Remedies of the Association in the Event of Default. If any assessment
pursuant to this Declaration is not paid within thirty(30) days after its due date, the assessment
shall bear interest from the date of delinquency at the rate of twelve percent (12%)per annum.
In addition, in its discretion,the Association may:
(a) impose a penalty or late charge as previously established by
rule;
(b) bring an action at law against the Owner personally obligated to pay the
same and/or foreclose the lien against the Lot, and interest, costs and reasonable
attorneys' fees of any such action shall be added to the amount of such assessment. A
suit to recover a money judgment for nonpayment of any assessment levied pursuant to
this Declaration, or any installment thereof, may be maintained without perfecting,
foreclosing or waiving the lien provided for herein to secure the same;
(c) suspend a Member's voting rights, right to hold an office within the
Association, and right to use nonessential services offered by the Association to the
extent that access and the provision of utilities to the Lot through the Common Area are
not precluded. An Owner, whose rights have been suspended in this manner, shall have
no right to any refund or suspension of his,her or its obligations to pay such assessments
for the duration of such suspension or otherwise; and
(d) accelerate the due date of the unpaid assessment so that the entire balance
shall become immediately due, payable and collectible.
No Owner may waive or otherwise escape liability for the assessments provided for
herein by non-use of the Common Area or facilities, abandonment of its Lot, or the failure of the
Association or the Board of Directors to perform their duties.
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Section 5.12, Subordination of the Lien to Mortgagees. The lien for the assessments
provided for herein shall be subordinate to the lien of any properly recorded first mortgage
encumbering a Lot. Notwithstanding anything contained in this Section 5.12 or elsewhere in this
Declaration, any sale or transfer of a Lot to a Mortgagee pursuant to a foreclosure of its mortgage
or conveyance in lieu thereof, or a conveyance to any person at a public sale in the manner
provided by law with respect to mortgage foreclosures, shall extinguish the lien of any unpaid
assessments (or periodic installments, if applicable) which became due prior to such sale,
transfer or conveyance; provided, however, that the extinguishment of such lien shall not relieve
the prior Owner from personal liability therefore. No such sale, transfer or conveyance shall
relieve the Lot, or the purchaser thereof at such foreclosure sale, or the grantee in the event of
conveyance in lieu thereof, from liability for any assessments (or periodic installments of such
assessments, if applicable) thereafter becoming due or from the lien for such assessments,
Section 5.13. Exempt Property. The following property subject to this Declaration
shall be exempt from the assessments created herein: (a) all property dedicated to and accepted
by a local public authority; and (b) the Common Area; however, no developed or undeveloped
Lot, land or improvements devoted to dwelling use shall be exempt from said assessments.
Section 5.14. Reserves for Replacements. The Association shall establish and maintain
a reserve fund for (a) the maintenance, repair and replacement of the Common Area and
improvements located thereon and for(b) the painting of the siding and exterior wood trim of the
Dwelling Units by the allocation and payment to such reserve fund of an amount to be
designated from time to time by the Board of Directors, which reserve fund shall be sufficient, in
the sole opinion of the Board of Directors, to accommodate such future maintenance, repair and
replacement and which shall be a component of the Annual Assessment. Such fund shall be
conclusively deemed to be a common expense of the Association and may be deposited with any
banking institution, the accounts of which are insured by any state or by any agency of the
United States of America or may, in the discretion of the Board of Directors, be invested in
obligations of, or fully guaranteed as to principal by, the United States of America. The reserve
for replacement of the Common Area and the painting of the siding and exterior wood trim of the
Dwelling Units may be expended only for the purpose of effecting the replacement of the
Common Area, major repairs to, replacement and maintenance of any improvements within the
Common Area, including but not limited to sidewalks, parking areas, landscape improvements,
street or common area lighting, streets or roadways developed as a part of the Property,
equipment replacement, painting of the siding and exterior wood trim of the Dwelling Units, and
for start-up expenses and operating contingencies of a nonrecurring nature relating to the
Common Area. The Association may establish such other reserves for such other purposes as the
Board of Directors may from time to time consider to be necessary or appropriate. The
proportional interest of any Member in any such reserves shall be considered an appurtenance of
the Member's Lot and shall not be separately withdrawn, assigned or transferred or otherwise
separated from the Lot to which it appertains and shall be deemed to be transferred with such
Lot.
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ARTICLE VI
RESTRICTIVE COVENANTS
Section 6.1. Residential Use. The Property shall be used exclusively for residential
purposes and permitted uses as defined in the City of Carmel, Indiana Zoning Ordinance No. A-
462-04 set forth on the attached Exhibit "B" ("Zoning Ordinance") and except as provided in
Section 6.19 hereof. The Declarant reserves the right, pursuant to a recorded subdivision or re-
subdivision plat,to alter, amend,and change any Lot line or subdivision plan or plat. No building
shall be erected, altered, placed or permitted to remain on any Lot other than one Dwelling Unit
and appurtenant structures, approved by the Association and appropriate Local Governing
Authorities,for use solely by the occupant of the Dwelling Unit.
Section 6.2. Architectural Review Board Approval. No Structure(as herein defined)
or addition to a Structure shall be erected, placed, painted, altered or externally modified or
improved on any Lot until the plans and specifications, including design, elevation, material,
shape, height, color and texture, and a site plan showing the location of all improvements with
grading modifications, shall be filed with and approved in 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, decks,
patios, stairs, windows, window boxes, doors, fences, play equipment, greenhouses, skylights,
address markers, mail boxes, name plates, flag poles, lawn ornaments, trees, hedges, shrubbery,
solar panels, satellite dishes, antennae, shutters, awnings, fences, pools, hot-tubs, pavement,
walkways, driveways, garages and/or garage doors, or appurtenances to any of the
aforementioned.
Section 6.3. Laundry. No clothing, laundry or wash shall be aired or dried on any
portion of the Property within public view.
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
11.1 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 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. Signs. The only signs permitted on the Property shall be customary home
and address signs and real estate sale or lease signs and those permitted by the Zoning Ordinance
which have received the prior written approval of the Architectural Review Board ("Permitted
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Signs"). No more than one (1) Permitted Sign shall be displayed to public view on any Lot and
must be less than or equal to two (2) square feet in total surface area and may not be illuminated.
All Permitted Signs advertising the property for sale or rent shall be removed within three (3)
days from the date of the conveyance of the Lot or of the execution of the lease agreement, as
applicable.
Section 6.7. Animals. No domesticated or wild animal shall be kept or maintained on
any Lot, except for common household pets such as dogs and cats which may be kept or
maintained, provided that they are not kept, bred or maintained for commercial purposes and do
not create a nuisance or annoyance to surrounding Lots or the neighborhood and are kept in
compliance with applicable laws and ordinances of the Local Governing Authority. Pets will not
be permitted outside of a Dwelling Unit unless on a leash and any.Owner walking a pet within
the Community or on any Common Area will immediately clean up any solid animal waste and
properly dispose of the same. Law enforcement and animal control personnel shall have the right
to enter the Property to enforce local animal control ordinances. Unless permitted by the Board
of Directors of the Association, no Owner shall maintain more than two (2) of the same type
(dog, cat, bird) of pet nor more than four (4) total pets; provided, however, that fish which are
located in indoor aquariums and which pose no risk to the public health shall not be considered
pets for the purpose of this restriction.
Section 6.8. 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, except those receptacles designed for trash accumulation located in the Common
Area. No accumulation or storage of litter, new or used building materials, or trash of any kind
shall be permitted on the exterior of any Dwelling Unit.
Section 6.9. 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 and only when fully
screened from public view on the rear and above the eave line of any Dwelling Unit. Satellite
dishes will not exceed 18 inches in diameter. It is the intent of this provision that the
Architectural Review Board shall be able to strictly regulate exterior antennae and satellite
dishes to the fullest extent of the law and should any regulations adopted herein or by the
Architectural Review Board conflict with federal law, such rules as do not conflict with federal
taw shall remain in full force and effect.
Section 6.10. Painting. No person shall paint the exterior of any building, or portion
thereof. All Dwelling Units in the Community will, at all times, be painted in a uniform color,
without variation.
Section 6.11. 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
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six(6)months after the commpncemont 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 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 6.12. Fences.Except for any fencing installed by the Declarant on any Lot or in
any Common Areas,no fence or similar enclosure shall be erected or built on any Lot.
Section 6.13. 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 6.14. 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 6.15. Recreational Vehicles. No recreational vehicles or equipment, such as but
not limited to boats, boating equipment, jet-skis, wave runners; all terrain vehicles ("ATVs"),
recreation vehicles ("RVs"), 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 6.16. 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, upon twenty-four(24)
hours'notice and at the vehicle owner's sole expense.
Section 6.17. Garage Usage., Subject to the Zoning Covenants, any conversion of any
garage that will preclude the parking of vehicles within that garage is prohibited. Owner's shall
keep their garages at all times in a manner that will permit the usage of such garage for parking
of passenger automobiles,vans and/or trucks.
Section 6.18. Rental Agreements. Any rental agreement for a Dwelling Unit must be
for an initial period of at least six(6)months, must be in writing and must be subject to the rules
and regulations set forth in this Declaration and in the other Association documents. Every such
rental agreement must include a provision stating that any failure by the tenant, its household
members or guests, to comply with the terms of this Declaration shall be a default under the
rental agreement, and the Owner shall be responsible for enforcing that provision.
Section 6.19. Initial Construction and Marketing. The Declarant, may, during its
construction and/or sales period, erect, maintain and operate real estate sales and construction
offices, model homes, awnings, flag poles, trap fencing, displays, signs and special lighting on
any part of the Property and on or in any building or structure now or hereafter erected thereon
and shall not be bound by the provisions of this Article to the extent application thereof would
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delay, hindei or increase the cast 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 are placed on the exterior of a Dwelling Unit or Structure, or
that is otherwise visible from the exterior of such Dwelling Unit or Structure, shall be first
approved by the Architectural Review Board.
Section 6.21. Window Boxes. 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. Each Owner shall maintain any and all
coach lights installed as a part of the initial construction of each Dwelling Unit in good order,
condition and repair, including, without limitation, any necessary repairs or maintenance as
may be required for the effective operation of all "dusk to dawn" photocell switches and
replacement of light bulbs so that those coach lights remain continuously operational from
dusk to dawn.
Section 6.23. General Prohibition. All swing sets, playground equipment, hot tubs,
above and below-ground pools, basketball goals, trampolines, flag poles, outbuildings, storage
buildings, exterior storage structures, attached or detached kennels, dog runs, electric bug
killers, awnings (except those used by Declarant) and temporary storage structures are
prohibited.
Section 6.24. Nuisance. No noxious or offensive activity shall be carried on or
permitted to 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. Nothing shall be done
or kept or permitted to be done or kept by an Owner in any Dwelling Unit, or on any Lot, or on
any of the Common Areas, which will cause an increase in the rate of insurance paid by the
Association or any other Owner. No Owner shall permit anything to be done or kept in his
Dwelling Unit or on his Lot which will result in a cancellation of insurance on any part of the
Common Area or any other Owner, or which would be a violation of any law or ordinance or
the requirements of any insurance underwriting or rating bureau. No Dwelling Unit or Lot shall
be used in any unlawful manner or in any manner which might cause injury to the reputation of
the Community or which might be a nuisance, annoyance, or inconvenience, or which might
cause damage, to other Owners and occupants of Dwelling Units or neighboring property,
including, without limiting the generality of the foregoing, noise by the use of any musical
instrument, radio, television, loud speakers, electrical equipment, amplifiers or other
equipment or machinery. No exterior lighting on a Lot shall be directed outside the boundaries
of the Lot. No outside toilets shall be permitted on any Lot (except during a period of
construction and then only upon obtaining prior written consent of the Architectural Review
Board), and no sanitary waste or other wastes shall be permitted to be exposed.
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.
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ARTICLE VII
ARCHITECTURAL REVIEW BOARD
Section 7.1. Architectural Review Committee.
(a) Members of ARC. The ARC shall be comprised of not less than three (3)
nor more than five (5) members, the number of which may be increased by a majority
vote of the Board. The initial members of the ARC shall be representatives of Declarant
until three (3) years after the first Closing of the sale of a Lot ("Third Anniversary").
After the Third Anniversary the Board may appoint and/or remove one(1) member of the
ARC, and Declarant shall have the right and power at all times to appoint and remove a
majority of the members of the ARC or to fill any vacancy of such majority, until the
expiration of the Development Period, after which the Board shall have the power to
appoint and remove all of the members of the ARC. The Declarant may voluntarily
surrender the right to appoint and release members of the ARC before termination of the
above referenced time period. In that event, the Declarant may require, for the duration
of the period, that specified actions of the ARC be approved by the Declarant before they
become effective. ARC members appointed by the Board shall be from the Membership
of the Association, but ARC members appointed by Declarant need not be Members of
the Association. The ARC shall have the right and duty to promulgate reasonable
standards against which to examine any request made pursuant to this Article, in order to
ensure that the proposed plans conform harmoniously to the exterior design and existing
materials of the buildings in the Development. Board members may also serve as ARC
members.
(b) Review of Plans and Specifications. The ARC shall consider and act upon
any and all plans and specifications submitted for its approval under this Declaration and
perform such other duties as from time to time shall be assigned to it by the Board,
including the inspection of construction in progress to assure its conformance with plans
approved by the ARC. No construction, alteration, removal, location, relocation,
repainting, demolishing, addition, installation, modification, decoration, redecoration or
reconstruction of Improvements, including landscaping, in the Community shall be
commenced or maintained, until the plans and specifications therefore showing the
nature, kind, shape, height, width, color, materials and location of the same shall have
been submitted to the ARC and approved in writing by the ARC; provided, however, that
any Improvement may be repainted without ARC approval so long as the Improvement is
repainted the identical color which it was last painted.
It shall be the responsibility of the Owner to submit the written plans and
specifications (the "Applicant") to an authorized agent of the ARC. Until changed by the
Board, the address for the submission of such plans and specifications shall be the
principal office of the Association. The ARC shall approve plans and specifications
submitted for its approval only if it deems that the installation, construction, alterations or
additions contemplated thereby in the locations indicated will not be detrimental to the
appearance of the surrounding area or the Development as a whole, that the appearance
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•
of any structure affected thereby wi 1, be in,, qrt 1Oniy,.,with the surrounding-structures, that g•,•
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the construction thereof will not detract from the beauty, wholesomeness and
attractiveness of the Common Areas or the enjoyment thereof by the Members, and that
the upkeep and maintenance thereof will not become a burden on the Association.
Declarant, and any person or entity to which Declarant may assign all or a portion of its
exemption hereunder, need not seek or obtain ARC approval of any Improvements
constructed on the Community by Declarant or such person or entity, as the case may be.
The ARC may condition its approval of proposals or plans and specifications for
any Improvements (1) upon the Applicant's furnishing the Association with security
acceptable to the Association against any mechanic's lien or other encumbrance which
may be Recorded against the Development as a result of such work„(2) on such changes
therein as it deems appropriate, (3) upon the Applicant's agreement to complete the
proposed work within a stated period of time, or (4) all of the above, and may require
submission of additional plans and specifications or other information prior to approving
or disapproving material submitted. The ARC may also issue rules or guidelines setting
forth procedures for the submission of plans for approval, requiring a fee to accompany
each application for approval, or stating additional factors which it will take into
consideration in reviewing submissions. The ARC may provide that the amount of the
fee shall be uniform, or that it be determined in any other reasonable manner, such as by
the reasonable cost of the construction, alterations or additions contemplated. All plans
and specifications for any construction or other Improvement (other than walls, fences,
curbs, asphalt or cement areas, landscaping and non-structural alterations, modifications
or additions) shall be prepared by a designer or licensed architect and shall include a site
development plan showing existing and proposed topographic elevations.
Notwithstanding the foregoing provisions of this Section, Improvements which
are damaged or destroyed may be repaired, restored, replaced and/or reconstructed in
conformance with previously approved plans, specifications and materials without the
necessity of submitting additional plans and specifications to the Board or obtaining the
Board's approval.
Until receipt by the ARC of any required plans and specifications, the ARC may
postpone review of any plans submitted for approval. Decisions of the ARC and the
reasons therefore shall be transmitted by the ARC to the Applicant at the address set forth
in the application for approval within sixty (60) days after receipt by the ARC of all
materials required by the ARC. Any application submitted pursuant to this Section 7.1
shall be deemed approved unless written disapproval or a request for additional
information or materials by the ARC shall have been transmitted to the Applicant within
sixty (60) days after the date of receipt by the ARC of all required materials. The
Applicant shall meet any review or permit requirements of the ARC and the appropriate
governmental authorities prior to making any alterations or Improvements permitted
hereunder. Provided, however, regardless of how approval is obtained, the applicant
shall be obligated to conform and abide by the architectural rules, standards, covenants
and restrictions contained in this Declaration, and as amended and adopted by the ARC,
from time to time.
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(c) Meetings of the ARC. The ARC shall meet from time to time as
necessary to perform its duties hereunder. The Board may from time to time, by
resolution unanimously adopted in writing, designate a ARC representative (who may,
but need not, be one of its members) to take any action or perform any duties for and on
behalf of the ARC, except the granting of variances pursuant to Section 7.1 (h). In the
absence of such designation, the vote or written consent of a majority of the ARC shall
constitute an act of the ARC.
(d) No Waiver of Future Approvals. The approval of the ARC of any
proposals or plans and specifications or drawings for any work done or proposed or in
connection with any other matter requiring the approval and consent of the ARC, shall
not be deemed to constitute a waiver of any right to withhold approval or consent to any
similar proposals, plans and specifications, drawings or matters subsequently or
additionally submitted for approval or consent.
(e) Compensation of Members. The members of the ARC shall receive no
compensation for services rendered, other than reimbursement for expenses incurred by
them in the performance of their duties hereunder.
(f) Inspection of Work. The ARC or its duly authorized representative may at
any time inspect any work for which approval of plans is required under this Section 7.1
("Work"), which right to inspect shall include the right to require any Owner to take such
action as may be necessary to remedy any noncompliance with the ARC-approved plans
for the work or with the requirements of this Declaration("Noncompliance").
(i) Time Limit. The ARC's right to inspect the Work and notify the
responsible Owner of any Noncompliance shall terminate sixty(60) days after the
latest to occur of the following events: (i) submittal of the plans for the Work to
the ARC for its approval as provided in this Section 3; (ii) completion of the
Work as provided in the ARC-approved plans; and (iii) written notice from the
Owner to the ARC that the Work has been completed. This time limit for
inspection and notification by the ARC shall be extended indefinitely if any of
these conditions has not occurred. If the ARC fails to send a notice of
Noncompliance to an Owner before this time limit expires, the Work shall be
deemed to comply with the approved plans.
(ii) Remedy. If an Owner fails to remedy any Noncompliance within
thirty (30) days from the date of notification from the ARC, the ARC shall notify
the Board in writing of such failure. Upon Notice and Hearing, as provided in the
Bylaws, the Board shall determine whether there is a Noncompliance and, if so,
the nature thereof and the estimated cost of correcting or removing the same. If a
Noncompliance exists, the Owner shall remedy or remove the same within a
period of not more than thirty (30) days from the date that notice of the Board
ruling is given to the Owner. If the Owner does not comply with the Board ruling
within that period, the Board, at its option, may Record a Notice of
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Noncompliance and commence a lawsuit for damages or injunctive relief, as ap-
propriate, to remedy the Noncompliance.
(g) Scope of Review. The ARC shall review and approve, conditionally
approve or disapprove all plans submitted to it for any proposed Improvement, alteration
or addition, solely on the basis of aesthetic considerations, consistency with this
Declaration, and the overall benefit or detriment which would result to the immediate
vicinity and the Community generally. The ARC shall take into consideration the
aesthetic aspects of the architectural designs, placement of buildings, landscaping, color
schemes, exterior finishes and materials and similar features. The ARC's approval or
disapproval shall be based solely on the considerations set forth in this Section 7.1, and
the ARC shall not be responsible for reviewing, nor shall its approval of any plan or
design be deemed approval of, any plan or design from the standpoint of structural safety
or conformance with building or other codes. The ARC may consider the impact of
views from other Residences or Lots and reasonable privacy right claims as factors in
reviewing, approving or disapproving any proposed landscaping, construction or other
Improvement. However, Declarant does not warrant any protected views within the
Development and no Dwelling Unit or Lot is guaranteed the existence or unobstructed
continuation of any particular view.
(h) Variances. The ARC may recommend and the Board may authorize
variances from compliance with any of the architectural provisions of this Declaration,
including without limitation restrictions upon height, size, floor area or placement of
structures, or similar restrictions, when circumstances such as topography, natural
obstructions, hardship, aesthetic or environmental consideration may require. Such
variances must be evidenced in writing, must be signed by a majority of the ARC, and
shall become effective upon recordation. After Declarant has lost the right to appoint a
majority of the members of the ARC, the Board must approve any variance recom-
mended by the ARC before any such variance shall become effective. If such variances
are granted, no violation of the covenants, conditions and restrictions contained in this
Declaration shall be deemed to have occurred with respect to the matter for which the
variance was granted. The granting of such a variance shall not operate to waive any of
the terms and provisions of this Declaration for any purpose except as to the particular
property and particular provision hereof covered by the variance, nor shall it affect in any
way the Owner's obligation to comply with all governmental laws and regulations
affecting the use of his Dwelling Unit.
(i) Appeals. For so long as Declarant has the right to appoint and remove a
majority of the members of the ARC, decisions of the ARC shall be final, and there shall
be no appeal to the Board. When Declarant is no longer entitled to appoint and remove a
majority of the members of the ARC the Board may, at its discretion, adopt policies and
procedures for the appeal of ARC decisions for reconsideration by the Board. The Board
shall have no obligation to adopt or implement any such appeal procedures, and in the
absence of Board adoption of appeal procedures, all decisions of the ARC shall be final.
ARTICLE VIII
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EASEMENTS AND OTHER AREAS
Section 8.1. 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 of Incorporation, By-Laws and rules of the Association, and in the
event of emergencies and in the performance of governmental functions.
Section 8.2. 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 hereof
located upon such Lot, or(ii) unreasonably restricts the right of ingress and egress to such Lot.
Section 8.3. Limitation on General Easement Rights. When not an emergency
situation or a governmental function, the rights accompanying the easements provided for in
Section 8.1 of this Article shall be exercised only during reasonable daylight hours and then,
whenever practicable, only after advance notice to, any Owner or tenant directly affected.
Section 8.4. 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 stormwater
from roofs and gutters, (b) deviations within normal construction tolerances in the
maintenance, repair, replacement or reconstruction of any improvement, or (c) the settling or
shifting of any land or improvement, an easement is hereby granted to the extent of any such
encroachment for the period of time the encroachment exists. The owner of the encroaching
improvement shall also have an easement for the limited purpose of maintenance of the
encroaching improvement. This easement does not relieve any Owner or any other person from
liability for such Owner's or other person's negligence or willful misconduct.
Section 8.5. Ingress Egress Easement. The Declarant and its agents and employees,
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.
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Section 8.6. Drainage, Utility and Sewer Easements (DU & SE). Any Drainage,
Utility and Sewer Easement (DU & SE) shown on any Plat are created to provide (i) 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 (ii)
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 (iii) 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 8.7. 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 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 8.8. Bonds and/or Dedication Requirements. There is reserved to the
Declarant an easement and the right to grant and reserve easements or to vacate or terminate
easements across all Lots and Common Area as may be required by any governmental agency or
authority or utility in connection with the release of improvement bonds or the acceptance of
public streets for state maintenance with respect to the Property.
Section 8.9. Easements for Corrective Work. There is reserved to the Declarant a
nonexclusive easement over all Lots and the Common Area for the purposes of (i) correcting,
repairing or maintaining any drainage, drainage infrastructure, utility infrastructure, grading or
regrading, maintenance, landscaping, (ii) mowing, (iii) erecting street intersection signs,
directional signs, temporary promotional signs, entrance features, lights and wall features, and
(iv) 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 8.10. 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, and lessees.
Section 8.11. Parking Areas. Parking Areas 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
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Owners and their family members, guests, invitees, and lessees for the parking of motor
vehicles.
Section 8.12. Sidewalks. That portion of the Common Area occupied by Sidewalks is
hereby reserved for use by not only the Owners and their family members, guests, invitees, and
lessees, but the general public, as well, for pedestrian purposes in the manner in which
sidewalks are typically used.
Section 8.13. Private Streets. The surface of that portion of the Common Area
occupied by Private Streets is reserved not only for the use for Owners and their family
members, guests and invitees, but also for the use by the general public, for vehicular ingress
and egress in the manner in which streets are customarily used.
ARTICLE IX
PARKING
Parking of any type of vehicle in any Common Area is prohibited in areas other than
areas specifically identified as parking areas, adjacent to Private Streets 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 X
PARTY WALLS
Section 10.1. General Rules of Law to Apply. Each wall which is built as a part of
the original construction of the Dwelling Units upon the Property and placed on the dividing
line between Lots shall constitute a party wall, and, to the extent not inconsistent with the
provisions of this Article, the general rules of Indiana law regarding party walls and liability
for property damage due to negligence or willful acts or omissions shall apply thereto.
Section 10.2. Sharing of Repair and Maintenance and Destruction by Fire or Other
Casual. If any such party wall is damaged or destroyed by fire or other casualty or by some
cause other than the act of one of the adjoining Owners, its agents, family, household or guests
(including ordinary wear and tear and deterioration from lapse of time), then in such event both
such adjoining Owners shall proceed forthwith to rebuild or repair the structural components of
such wall, sharing equally the cost thereof, and each individual Owner shall proceed forthwith to
rebuild or repair the non-structural components of such wall in proportion to their respective uses
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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 10.3. Repairs for Damage Caused by One Owner. If any such party wall is
damaged or destroyed through the act of one or more adjoining Owners, or their respective
agents, families, households or guests (collectively the"Offending Parties"), whether or not such
act is negligent or otherwise culpable, so as to deprive another adjoining Owner of the full use
and enjoyment of the wall, then the Owner(s) of the Dwelling 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 10.2, above,
without cost to the adjoining Owner.
Section 10.4. 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.
Section 10.5. Plans and Specifications. Any reconstruction or repair must either be in
accordance with the original development plan for the Dwelling Units or according to plans and
specifications approved by the Architectural Review Committee.
Section 10.6. Right to Contribution Runs with the Land. The right of any Owner to
contribution from any other Owner under this Article shall be appurtenant to the land and shall
pass to such Owner's successors in title.
Section 10.7. 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 of such Owners addressed to the Association, the matter shall be submitted
to the Board of Directors, who shall decide the dispute.
ARTICLE XI
POWERS AND DUTIES OF THE ASSOCIATION
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Section 11.1. 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 shall
have a duty to enforce the covenants by an action at law or in equity if, in its or their
opinion, such an enforcement is not in the Association's best interest. The expenses and
costs of any enforcement proceedings shall be paid out of the general fund of the
Association as herein provided for; provided, however, that the foregoing authorization to
use the general fund for such enforcement proceedings shall not preclude the Association
from collecting such costs from the offending Owner;
(b) to provide such light as the Association may deem advisable on streets and
the Common Area and to maintain any and all improvements, Structures or facilities
which may exist or be erected from time to time on the Common Area;
(c) to 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 Iawn 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;
(0 to exercise all rights, responsibilities and control over any easements
which the Association may from time to time acquire, including but not limited to those
easements specifically reserved to the Association in the Article VIII herein;
(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;
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(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;
(i) to retain as an independent contractor or employee a manager of the
Association and such other employees or independent contractors as the Board deems
necessary, and to prescribe the duties of employees and scope of services of independent
contractors;
(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;
(1) 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 11.2. Mandatory Powers and Duties. The Association shall exercise
the following powers, rights and duties:
(a) to accept title to the Common Area and to hold and administer the Common
Area for the benefit and enjoyment of the Owners and occupiers of Lots, and to cause the
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Common Area and facilities to be maintained in accordance with the standards adopted
by the Board of Directors;
(b) to transfer part of the Common Area to or at the direction of the Declarant,
for the purpose of adjusting boundary lines or otherwise in connection with the orderly
subdivision or development of the Property, but only to the extent such re-subdivision or
adjustment does not contravene the requirements of zoning and other ordinances
applicable to the Property;
(c) upon the termination of the Development Period, 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 (AE) 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 $1,000,000.00 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 therefore), recreational facilities, entrance features, entrance ways, entrance areas,
stormwater management facilities, including sand filters, retaining walls and sound walls,
(ii) easement areas of which the Association is the beneficiary and for which it has the
maintenance responsibility, (iii) any private streets or access easements (AE) existing on
the Property or shown on any Plat; (iv) facilities, including but not limited 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
therefore);
(f) to arrange for plowing and/or removal of snow from (i) private streets
located within Common Areas, (ii) community walkways located within Common
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Areas, and (iii) driveways located upon Lots. It shall be each Owner's responsibility,
however, to remove snow from the walkway extending from the community walkways
to the front door of the Owner's Dwelling Unit.
(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 maintain, replace, irrigate, and fertilize the flowers, plants, trees and
(i) to paint all hardi-plank siding and wood exterior trim, but shall not be
responsible for any other maintenance of the exterior of a Dwelling Unit;
(j) to pay all proper bills, taxes, charges and fees on a timely basis;
and
(k) to maintain its corporate status.
Section 11.3. Board Authority to Act. Unless otherwise specifically provided in the
Association's documents, all rights, powers, easements, obligations and duties of the
Association may be performed by the Board of Directors. Notwithstanding anything to the
contrary contained herein, any rules or regulations which are promulgated by the Board may be
repealed or amended by a majority vote of the Members cast, in person or by proxy, at a
meeting convened for such purpose in accordance with the By-Laws.
Section 11.4. Compensation. No director or officer of the Association shall receive
compensation for services as such director or officer except to the extent expressly authorized
by a majority vote of the Class A Members.
Section 11.5 Non-liability of Directors, Officers and Board Members. The directors
and officers of the Association and members of the Architectural Review Board shall not be
liable to the Owners or any other persons for any error or mistake of judgment in carrying out
their duties and responsibilities as directors or officers of the Association or members of the
Architectural Review Board, except for their own individual willful misconduct or gross
negligence. It is intended that the directors and officers of the Association and members of the
Architectural Review Board shall have no personal liability with respect to any contract made
by them on behalf of the Association except in their capacity as Owners.
Section 11.6. Indemnity of Directors and Officers and Members of the
Architectural Review Board. The Association shall indemnify, hold harmless and defend any
person, his or her heirs, assigns and legal representatives (collectively, the "Indemnitee") made
or threatened to be made a party to any action, suit or proceeding by reason of the fact that he or
she is or was a director or officer of the Association or member of the Architectural Review
Board, against all costs and expenses, including attorneys fees, actually and reasonably incurred
by the Indemnitee in connection with the defense of such action, suit or proceeding, or in
connection with any appeal thereof, except in relation to matters as to which it shall be adjudged
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in such action, suit or proceeding that such Indemnitee is guilty of gross negligence or willful
misconduct in the performance of his or her duties. The Association shall also reimburse any
such Indemnitee for the reasonable costs of settlement of or for any judgment rendered in any
action, suit or proceeding, unless it shall be adjudged in such action, suit or proceeding that such
Indemnitee was guilty of gross negligence or willful misconduct. In making such findings and
notwithstanding the adjudication in any action, suit or proceeding against an Indemnitee, no
director or officer or member of the Architectural Review Board shall be considered or deemed
to be guilty of or liable for gross negligence or willful misconduct in the performance of his or
her duties where, acting in good faith, such director, officer or member of the Architectural
Review Board relied on the books and records of the Association or statements or advice made
by or prepared by any managing agent of the Association or any director or officer of the
Association, or any accountant, attorney or other person, firm or corporation employed by the
Association to render advice or service, unless such director or officer had actual knowledge of
the falsity or incorrectness thereof; nor shall a director be deemed guilty of gross negligence or
willful misconduct by virtue of the fact that he or she failed or neglected to attend a meeting or
meetings of the Board of Directors of the Association. 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 XII
GENERAL PROVISIONS
Section 12.1. 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 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, (i) the Declarant 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, or the Association and (ii) 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 in the construction, development, and sales
activities pertaining to the Property,
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Section 12.2. 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 of Incorporation and this
Declaration, the Declaration shall control; in the case of any conflict between this Declaration
and the By-Laws, this Declaration shall control.
Section 12.3. 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.
Section 12.4. Amendment of Declaration.
(a) Generally. Except as otherwise provided in this Declaration, amendments
to this Declaration shall be proposed and adopted in the following manner:
(i) Notice. Notice of the subject matter of any proposed
amendment shall be included in the notice of the meeting at which the
proposed amendment is to be considered.
(ii) Resolution. A resolution to adopt a proposed amendment
may be proposed by the Board of Directors or Owners having in the
aggregate at least a majority of the votes of all Owners.
(iii) Meeting. The resolution concerning a proposed amendment
must be adopted by the designated vote at a meeting duly called and held
in accordance with the provisions of the By-Laws of the Association.
(iv) Adoption. Any proposed amendment to this Declaration
must be approved by a vote of not less than seventy-five percent (75%) in
the aggregate of the votes of all Owners; provided, however, that during
the Development Period, any amendment to this Declaration shall require
the prior written approval of Declarant. In the event any Lot is subject to a
first mortgage, the mortgagee thereunder shall be notified of the meeting
and the proposed amendment in the same manner as an Owner if the
mortgagee has given prior written notice of its mortgage interest to the
Association.
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(v) Special Amendments. No amendment to this Declaration
shall be adopted which changes the applicable share of an Owner's
liability for assessments, or the method of determining the same, without,
in each and any of such circumstances, the unanimous approval of all
Owners and all mortgagees whose mortgage interests have been made
known to the Association.
(vi) Recording. Each amendment to this Declaration shall be
executed by the President and Secretary of the Association and shall be
recorded in the office of the Recorder of Vanderburgh County, Indiana,
and such amendment shall not become effective until so recorded.
(b) Amendments by Declarant Alone.
(i) General Amendments. Notwithstanding the foregoing or anything
elsewhere contained herein, the Declarant shall have and hereby reserves the right
and power acting alone, and without the consent or approval of any of the
Owners, the Association, Board of Directors, any mortgagees or any other person,
except as provided below, to amend or supplement this Declaration at any time
and from time to time if such amendment or supplement is made (a) to comply
with requirements of the Federal National Mortgage Association, the Government
National Mortgage Association, the Federal Home Loan Mortgage Corporation,
the Department of Housing and Urban Development, or any other governmental
agency or any other public, quasi-public or private entity which performs (or may
in the future perform) functions similar to those currently performed by such
entities, (b) to induce any of such agencies or entities to make, purchase, sell,
insure or guarantee first mortgages covering Lots, (c) to bring this Declaration
into compliance with any statutory requirements, (d) to comply with or satisfy the
requirements of any insurance underwriters, insurance rating bureaus or
organizations which perform (or may in the future perform) functions similar to
those performed by such agencies or entities, (e) to annex additional real estate to
the Community, (I) to correct clerical or typographical errors in this Declaration
or any Exhibit hereto or any supplement or amendment thereto. In furtherance of
the foregoing, a power coupled with an interest is hereby reserved by, and granted
by each Owner to the Declarant to vote in favor of, make, or consent to any
amendments described in this subsection B on behalf of each Owner as proxy or
attorney-in-fact, as the case may be. Each deed, mortgage, trust deed, other
evidence of obligation, or other instrument affecting a Lot and the acceptance
thereof shall be deemed to be a grant and acknowledgment of, and a consent to
the reservation of, the power to the Declarant to vote in favor of, make, execute
and record any such amendments. The right of the Declarant to act pursuant to
rights reserved or granted under this subsection 12.4 shall terminate upon the
completion of the Development Period.
(ii) Technology/Communication Amendments. The Declarant shall
have the right and power acting alone and without the consent or approval of any
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of the Owners, the Association, Board of Directors, any mortgagees or any other
person to amend,restate or supplement this Declaration at any time and from time
to time in order to subject the Community to certain easements and access
restrictions to facilitate obtaining enhanced technological capabilities and to
provide for the preservation and enhancement of the amenities in the Community
including, but not limited to, the technological infrastructure, and communication
and utility services to and within the Community
(c) Protection of Declarant. Until the expiration of the Development Period,
or until the Applicable Date, whichever occurs first, the prior written approval of
Declarant, as Declarant of the Development, will be required before any amendment
which would impair or diminish the rights of Declarant to complete the Community or
sell or lease Lots therein in accordance with this Declaration shall become effective.
Notwithstanding any other provisions of the Restrictions, until the expiration of the
Development Period, the Association shall not take any action to significantly reduce the
Association maintenance or other services without the prior written approval of the
Declarant.
Section 12.7. 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 Vanderburgh County, Indiana.
Section 12.8. 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. 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 12.9. Withdrawable Real Estate.
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(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 12.10.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 12.11.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 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, the Declarant has caused this Declaration of Covenants,
Conditions and Restrictions for the Monon&Main to be executed as of the date written above.
MONON & MAIN, LLC, an Indiana
1' d liability company
By:
F. S inehart, Managing Member
'DECLARANT"
STATE OF INDIANA
)SS:
COUNTY OF MARION )
C:\Documents and Settings\jswinehart\My Documents\G+LWonon-Main\Dcclaration of Covenants Monon Main 92606.doc
Declaration of Covenants,Conditions and Restrictions Page 33
Before me, a Notary Public in and for said County and State, personally appeared John F.
Swinehart, Managing Member of Monon & Main, LLC, an Indiana limited liability company,
who acknowledged the execution of the foregoing Declaration of Covenants, Conditions and
Restriction for the Monon&Main on behalf of said company.
Witness my hand and Notarial Seal this 2g day of September, 2006.
EDWARD J.RANI .Q
HAMILTON COUNTY
COMM 522861 tidj
MY COMMISSION EXPIRES 2-12•2011 C,�
El/Ad 1 62c ,Notary Public
My Commission Expires: 2.- 2- WI (
My County of Residence: Mt 14-
off
C:\Documents and Settings\jswinehart\My Documents\G+L\Monon-Main\Declaration of Covenants Monon Main 92606.doc
I, affirm, under the enalties for erjury, that I have taken reasonable care to redact each Social
Security Nu in this ocum t, ess required by law.
8710 North Meridian Street
Indianapolis, Indiana 46260
This instrument was prepared by Stephen A. Backer, Esq., Backer & Backer, P.C., 8710 North
Meridian Street, Indianapolis, Indiana 46260.
;kY
LEGAL DESCRIPTION
PERIMETER DESCRIPTION OF WEST TRACT WHICH INCLUDES BLOCK#3,#4,#5,#6,
#7,#8,#9,#10 AND#11
A PART OF THE NORTHEAST QUARTER OF SECTION 25,TOWNSHIP 18 NORTH,
RANGE 3 EAST DESCRIBED AS FOLLOWS:
COMMENCING AT THE SOUTHEAST CORNER OF THE WEST HALF OF THE
NORTHEAST QUARTER OF SECTION 25,TOWNSHIP 18 NORTH,RANGE 3 EAST(AS
ESTABLISHED BY A SURVEY RECORDED AS INSTRUMENT#200600014480)THENCE
SOUTH 89 DEGREES 50 MINUTES 08 SECONDS WEST(ASSUMED BEARING)212.83
FEET ALONG THE SOUTH LINE OF SAID NORTHEAST QUARTER; THENCE NORTH 00
DEGREES 47 MINUTES 02 SECONDS EAST 35.00 FEET PARALLEL WITH THE EAST
LINE OF THE WEST HALF OF SAID NORTHEAST QUARTER TO THE NORTH RIGHT
OF WAY LINE OF MAIN STREET(131ST STREET)AS ESTABLISHED BY A
DEDICATION AND DEED OF PUBLIC RIGHT OF WAY RECORDED AS INSTRUMENT
#200500022613 AND THE POINT OF BEGINNING OF THE DESCRIPTION FOR THE
TRACT OF REAL ESTATE HEREIN DESCRIBED(THE FOLLOWING 3 COURSES ARE
ALONG SAID NORTH RIGHT OF WAY LINE); (1)THENCE NORTH 89 DEGREES 50
MINUTES 08 SECONDS EAST PARALLEL WITH THE SOUTH LINE OF SAID QUARTER
SECTION 135.78 FEET TO A POINT ON A NONTANGENT CURVE HAVING A RADIUS
OF 70.00 FEET,THE RADIUS POINT OF WHICH BEARS SOUTH 60 DEGREES 09
MINUTES 52 SECONDS EAST; (2)THENCE NORTHEASTERLY,EASTERLY AND
SOUTHEASTERLY ALONG SAID CURVE AN ARC DISTANCE OF 146.61 FEET TO A
POINT BEARING NORTH 59 DEGREES 50 MINUTES 08 SECONDS EAST FROM THE
RADIUS POINT;(3)THENCE PARALLEL WITH THE SOUTH LINE OF SAID QUARTER
SECTION NORTH 89 DEGREES 50 MINUTES 08 SECONDS EAST TO THE WEST RIGHT
OF WAY LINE OF 3RD AVENUE NORTHWEST AS ESTABLISHED BY A DEDICATION
AND DEED OF PUBLIC RIGHT OF WAY RECORDED AS INSTRUMENT#200500022613
(THE FOLLOWING 3 COURSES ARE ALONG SAID WEST RIGHT OF WAY LINE);(1)
THENCE NORTH 00 DEGREES 47 MINUTES 02 SECONDS EAST 46.61 FEET;(2)
THENCE NORTH 12 DEGREES 27 MINUTES 46 SECONDS WEST 180.72 FEET;(3)
THENCE NORTH 00 DEGREES 47 MINUTES 02 SECONDS EAST 45.78 FEET TO A
POINT,SAID POINT BEING NORTH 00 DEGREES 47 MINUTES 02 SECONDS EAST
304.00 FEET FROM THE SOUTH LINE OF SAID NORTHEAST QUARTER;THENCE
SOUTH 89 DEGREES 50 MINUTES 08 SECONDS WEST PARALJ.Fi WITH THE SOUTH
LINE OF SAID NORTHEAST QUARTER 156.82 FEET TO THE WEST LINE OF THE EAST
HALF OF SAID NORTHEAST QUARTER;THENCE NORTH 00 DEGREES 47 MINUTES 02
SECONDS EAST 3.00 FEET ALONG THE WEST LINE OF SAID EAST HALF;THENCE
SOUTH 89 DEGREES 50 MINUTES 08 SECONDS WEST 212.83 FEET PARALLEL WITH
THE SOUTH LINE OF SAID NORTHEAST QUARTER;THENCE SOUTH 00 DEGREES 47
MINUTES 02 SECONDS WEST PARALLEL WITH THE EAST LINE OF THE WEST HALF
OF SAID NORTHEAST QUARTER 272.00 FEET TO THE POINT OF BEGINNING.
CONTAINING 2.356 ACRES,MORE OR LESS.
•
PERIMETER DESCRIPTION OF EAST TRACT WHICH INCLUDES BLOCK#1,#2,#12,
#13,#14,#15,#16,#17 AND#18
A PART OF THE NORTHEAST QUARTER OF SECTION 25,TOWNSHIP 18 NORTH,
RANGE 3 EAST DESCRIBED AS FOLLOWS:
COMMENCING AT THE SOUTHWEST CORNER OF THE EAST HALF OF THE
NORTHEAST QUARTER OF SECTION 25,TOWNSHIP 18 NORTH,RANGE 3 EAST(AS
ESTABLISHED BY A SURVEY RECORDED AS INSTRUMENT 200600014480)THENCE
NORTH 89 DEGREES 50 MINUTES 08 SECONDS EAST(ASSUMED BEARING)452.50
FEET ALONG THE SOUTH LINE OF SAID NORTHEAST QUARTER;THENCE NORTH 00
DEGREES 47 MINUTES 02 SECONDS EAST 35.00'PARALLEL WITH THE WEST LINE
OF THE EAST HALF OF SAID NORTHEAST QUARTER TO THE NORTH RIGHT OF
WAY LINE OF MAIN STREET(131 ST STREET)AS ESTABLISHED BY A DEDICATION
AND DEED OF PUBLIC RIGHT OF WAY RECORDED AS INSTRUMENT 200500022613
AND THE POINT OF BEGINNING OF THE DESCRIPTION FOR THE TRACT OF REAL
ESTATE HEREIN DESCRIBED;THENCE SOUTH 89 DEGREES 50 MINUTES 08
SECONDS WEST PARALLEL WITH THE SOUTH LINE OF SAID NORTHEAST
QUARTER AND ALONG THE NORTH RIGHT OF WAY LINE TO THE EAST RIGHT OF
WAY LINE OF 3RD AVENUE NORTHWEST AS ESTABLISHED BY A DEDICATION
AND DEED OF PUBLIC RIGHT OF WAY RECORDED AS INSTRUMENT 200500022613
(THE FOLLOWING 3 COURSES ARE ALONG SAID EAST RIGHT OF WAY LINE); (1)
THENCE NORTH 00 DEGREES 47 MINUTES 02 SECOND EAST 50.99 FEET; (2)THENCE
NORTH 12 DEGREES 27 MINUTES 46 SECONDS WEST 180.72 FEET; (3)THENCE
NORTH 00 DEGREES 47 MINUTES 02 SECONDS EAST 41.40'TO A POINT, SAID POINT
BEING NORTH 00 DEGREES 47 MINUTES 02 SECONDS EAST 304.00'FROM THE
SOUTH LINE OF SAID NORTHEAST QUARTER;THENCE NORTH 89 DEGREES 50
MINUTES 08 EAST 251.68 FEET PARALLEL WITH THE SOUTH LINE OF SAID
NORTHEAST QUARTER TO A POINT, SAID POINT BEING NORTH 00 DEGREES 47
MINUTES 02 SECONDS EAST(PARALLEL WITH THE WEST LINE OF SAID EAST
HALF)FROM THE POINT OF BEGINNING; THENCE SOUTH 00 DEGREES 47 MINUTES
02 SECONDS WEST 269.00 FEET TO THE POINT OF BEGINNING.CONTAINING 1.422
ACRES,MORE OR LESS.
lr
Sponsor.Councilman Rattermann
ORDINANCE NO Z-462-04 Gnd Z-51 Ct- d
AN ORDINANCE OF THE COMMON COUNCIL OF THE
CITY OF CARMEL,INDIANA
ESTABLISHING THE
MONON&MAIN
PLANNED UNIT DEVELOPMENT DISTRICT
WHEREAS, Section 31.6.4 of the Carmel/Clay Zoning Ordinance Z-289 (the
"Carmel/Clay Zoning Ordinance"), provides for the establishment of a Planned Unit
Development District in accordance with the requirements of I.C. §36-7-4-1500 et seq.;
WHEREAS, the Carmel/Clay Plan Commission (the "Commission") has given a
favorable recommendation to the ordinance set forth herein (the "Monon & Main Ordinance")
which establishes the Monon&Main Planned Unit Development District(the"District").
NOW, THEREFORE, BE IT ORDAINED by the Common Council of the City of
Carmel, Indiana (the "Council"), that (i) pursuant to IC §36-7-4-1500 et seq., it adopts this
Monon&Main Ordinance, as an amendment to the Carmel/Clay Zoning Ordinance and it shall
be in full force and effect from and after its passage, (ii)all prior commitments shall be null and
void and replaced and superseded by this Monon & Main Ordinance, and (iii)this Monon &
Main Ordinance shall be in full force and effect from and after its passage and signing by the
Mayor.
Section 1 Aunlleability of Ordinance
1.1. The Official Zoning Map of the City of Cannel and Clay Township, a part of the
Carmel/Clay Zoning Ordinance,is hereby changed to designate the land described
in Exhibit"A"(the"Real Estate"),as a Planned Unit Development District to be
known as Monon&Main.
1.2. Development in the District shall be governed entirely by(i)the provisions of this
Monon & Main Ordinance and its exhibits, and (ii)those provisions of the
Carmel/Clay Zoning Ordinance specifically referenced in this Monon & Main
Ordinance. In the event of a conflict between this Monon & Main Ordinance and
the Carmel/Clay Zoning Ordinance or the Sign Ordinance, the provisions of this
Monon&Main Ordinance shall apply.
1.3. Any capitalized term not defined herein shall have the meaning as set forth in the
Carmel/Clay Zoning Ordinance in effect on the date of the enactment of this
Monon&Main Ordinance.
4