HomeMy WebLinkAboutRecorded DCCR for Waterfront of West Clay 4-2-182018013536 DECL $25.00
04/ 02/2018 09:10:31AM 59 PGS
Jennifer Hayden
Hamilton Count y Recorder IN
Recorded as Presented
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DECLARATION OF COVENANTS,
CONDITIONS AND RESTRICTIONS
FOR
WATERFRONT OF WEST CLAY
HAMIL TON COUNTY, INDIANA
CROSS REFERENCE TO PLATS:
Instrument Numbers: 2009016949, 2009067735, 2017049804 and 2017049805
l\l 163 34SS.4
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Table of Contents
ARTICLE I. DEFINITIONS ....................................................................................................... 7
Section 1.1.
Section l .2.
Section 1.3.
Section 1.4.
Sectio n 1.5 .
Section 1.6.
Section 1.7.
Section 1.8.
Section l.9.
Section I.I 0.
S ection I .11.
Section l.1 2.
Section l.13.
Section 1.14.
Section 1.15.
Section 1.16.
Sectio n l .17 .
Section 1.18.
Section 1.19.
Section 1.20.
Section 1.21.
Sectio n 1.22.
Section l.23.
Section 1.24.
Section 1.25.
Section 1.26.
Section 1.27.
Section 1.28.
Section 1.29.
Section 1.30.
Section 1.31 .
Section 1.32.
Section 1.33.
Section l .34.
Section 1.35.
Additional Property ..............................................................................7
Association ..................................... ........................................................ 7
Articles ................................................................................................... 7
Authority Transfer Date ....................................................................... 7
Board of Directors ................................................................................. 7
By-Laws .................................................................................................. 7
Common Area or Common Areas ....................................................... 7
Common Expenses ................................................................................7
County .................................................................................................... 7
Declarant ................................................................................................8
Declaration ............................................................................................. 8
Development Period .............................................................................. 8
Dwelling Unit ......................................................................................... 8
Federal Agencies.................................................................................... 8
Gate House ............................................................................................. 8
Lake or Lakes ........................................................................................8
Limited Common Area or Limited Common Areas ..........................8
Limited Common Expenses .................................................................. 8
Local Governing Authority .................................................................. 9
Lot ...........................................................................................................9
Maintenance Benefit Lot or Maintenance Benefit Lots ..................... 9
Maintenance Costs ................................................................................ 9
Member .................................................................................................. 9
Mortgagee .............................................................................................. 9
Owner ..................................................................................................... 9
Permitted Signs .................................................... ................................. 9
Person .......... ...........................................................................................9
Private Lot or Private Lots ................................................................... 9
Property ................................................................................................. 9
Recorder's Office ................................................................................. 10
Regular Assessments ........................................................................... L 0
Restrictions .......................................................................................... 10
Special Assessments ............................................................................ 10
Structure .............................................................................................. 1 0
Supplemental Declaration .................................................................. 10
ARTICLE II. MEMBERSlilP .................................................................................................. 10
ARTCCLE Ill. VOTING RIGHTS ............................................................................................ 10
Section 3.1.
Section 3.2.
Section 3.3.
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Classes .................................................................................................. 10
Expansion ............................................................................................. 11
Multiple Ownership Interests ............................................................ 11
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ARTICLE IV. DECLARATION OF RESTRICTIONS AND STATEMENT OF
PROPERTY RIGHTS ................................................................................................................. 12
S ection 4.1.
Section 4.2 .
Section 4.3.
Section 4.4 .
Declaration .............. ............................ ... .......... .......... ..... ..... ..... ........... 12
Property Rights ................................................................................... 12
Com1non Area ....................................... ....... ........................................ 14
Lintited Common Arca ....................................................................... l S
ARfICLE V. ASSESSMENTS .................................................................................................. 17
Section 5. l.
Section 5.2.
Sectio n 5.3.
Section 5.4.
Section 5.5.
Section 5.6.
Section 5.7.
Secti on 5.8.
Section 5.9 .
Section 5.1 0.
Sectio n 5 . t 1.
Section 5.12.
Section 5 .13 .
Section 5. 14.
Section 5.15 .
Creation of the Lien and Personal Obligation for
Assessments .......................................................................................... 17
Purpose of Assessment ........................................................................ l 7
Annual Accounting ............................................................................. 17
Proposed Annual Budget.. .................................................................. 18
Establishment of Regular Assessment ............................................... 18
Regular Assess men ts ........................................................................... 18
Special Assessments ............................................................................ l 9
Quorum for any Action Authorized Under Sections 5.6 or
S.7 .............. " ............................................................................................ 20
Working Capital Assessment ............................................................. 20
Rate of Assessment .............................................................................. 20
Notice of Assessment and Certificate ................................................ 21
Remedies of the Association in the Event of Default ....................... 2 1
Subordination of the Lien to Mortgages ........................................... 22
Exempt Proper-ty .................................................................................22
Replacement Reserve Fund .... ......... ...................................................23
ARTICLE VI. USE, RESTRIC T LONS AND ARCHITECTURAL CONTROLS ...............23
Sectio n 6. 1. Residential Use .................................................................................... 23
Section 6 .2.
Section 6.3.
Section 6 .4.
Section 6.5 .
Section 6.6 .
Section 6.7.
Section 6.8.
S ection 6.9.
Section 6.10.
Section 6.11.
Section 6.12.
Section 6.13.
Section 6.14.
Section 6 .15.
Section 6. 16.
Sectio n 6 .1 7.
Section 6. 18 .
Section 6.19.
Section 6.20 .
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A rchitectura l Review Board Apprnval .............................................23
Laundry ................................................................................................ 24
Sight Lines ........................................................................................... 24
Lot lVlaintenance .................................................................................24
Additions to Landscape Improvements ............................................ 24
Nuisance ...............................................................................................24
Signs ...................................................................................................... 24
An in1als ................................................................................................25
Trash S torage ...................................................................................... 25
Antenna e Systems ............................................................................... 25
Finished Exteriors ............................................................................... 26
Fences ................................................................................................... 26
Vehicles .................................................................................................26
C ommercial Vehicles .......................................................................... 26
Recreational Vehicles .......................................................................... 26
To·wing .......................... ........................................................................ 26
Garage Usage .......................................................................................27
Leasing ................................................................................................. 27
Initial Construction and Marketing ..................................................29
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Section 6.21.
Section 6.22.
Section 6.2 3.
Section 6.24.
Section 6.25.
Section 6 .26.
Section 6.27.
S ection 6.28.
Section 6.29.
Section 6 .3 0.
Section 6 .3 1.
Section 6.32.
Section 6 .3 3.
Section 6.34.
Dusk to Dawn Lights ........................................................................... 29
Garages and Driveways ......................................................................29
Storage Facilities ............. .................................................................... 30
Awnings ................................................................................................ 30
Docks ............... ..................................................................................... 30
Address Markers ................................................................................. 30
Pools ...................................................................................................... 30
Play Equipm.ent ................................................................................... 30
Basketball Goals .................................................................................. 30
Business Use ......................................................... ................................ 30
I ,andscaping of Common Areas and Limited Common
Areas ..................................................................................................... 31
Declarant's Use .................................................. .................................. 31
Non ·applicability to Association ........................................................ 3 1
Additional Rules and Regulations ..................................................... 31
ARTICLE VIJ. ARCHITECTURAL REVrEW BOARD .......................................................32
Section 7. 1.
S ectio n 7.2.
Section 7.3.
Section 7.4.
Section 7.5.
Section 7 .6.
Section 7. 7.
Section 7.8.
Section 7.9.
Section 7. I 0.
The Architectural Review Board ....................................................... 32
Removal and Vacancies ........... ............... .............. .............................. 32
Officers ................................................................................................. 32
Duties ..... ........ ... ................................ .................................................... 32
Failure to Act ...................................................................................... .33
Discretion ............................................................................................. 33
Enforcentent ......................................................................................... 33
Appeal .................................................................................................. 33
Liability of the Architectural Review Board, Declarant,
Association .......................................................................................... .33
Inspection ............................................................................................. 3 4
ARTICLE VIII. MAINTENANCE, REPAIRS ANO REPLACEMENTS ...........................34
Section 8.1. By Owners ............................................................................................ 34
S ectio n 8.2. Conunon Areas and Lot Maintenance by the Association ..............34
ARTICLE IX. INSURANCE ..................................................................................................... 36
Section 9. 1.
Section 9.2.
S ection 9.3 .
Section 9.4.
Sectio n 9.5 .
Section 9.6.
Section 9 .7.
Liability Insurance .............................................................................. 36
Casualty Insurance and Restoration ................................................ .36
Fidelity Bonds ...................................................................................... 37
Miscellaneous Insurance Provisions .................................................. ) 7
Insufficiency of Insurance Proceeds .................................................. 37
Surplus of Insura nce Proceeds ...........................................................37
Insurance b y Owner ............................................................................ 38
ARTICLE X. EASEMENTS ...................................................................................................... 38
S ection I 0.1.
Section I 0.2.
.Section l0.3 .
Section 10.4.
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General Easement Rights ............................ ........... ......... .... .... ...... ..... 38
Limitation on G eneral Easement Rights .......................................... .38
Plat Easements ..................................................................................... 38
Encroachments ................................................................................... .3 9
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Section I 0 .5.
Section 10.6.
Section 10.7.
Section I 0.8.
Section I 0.9.
Ingress/Egress Easement ....................................................................39
Reservation of Right tu Grant Future Easements ............................ 39
Bonds and/or Dedication Requirements ...........................................39
Easements for Corrective Work ....................................................... .40
Lake Easen1ents .................................................................................. .40
ARTICLE XI. PARKING .......................................................................................................... 40
ARTICLE XII. INTENTIONALLY OMITTED ..................................................................... 40
ARTICLE XJII. POWERS AND DUTIES OF THE ASSOCIATION ................................. .40
S ectio n 13.1.
Section 13 .2 .
Section 13.3.
Section 13.4.
Section 13 .5.
Section 13 .6.
Section 13.7.
Section 13.8.
S ection 13 .9.
Section 13.10.
Section 13 . I I.
Section 13. 12.
Discret ionary Powers and O uties ...................................................... .40
Ma ndatory Powers and Outies .......................................................... .42
Limitation o n Association Action ..... .................................................44
Board of Directors Authority to Act... .............................................. .44
Compensation ...................................................................................... 44
Non-liability of Directors, Office1·s and Board Memhers ................ 44
indemnity of Directors and Officers and Members of the
Architectural Review Board .............................................................. .44
Association Communications ............................................................. 45
Grievance Resolution ......................................................................... .45
Voti.ng by Proxy ................................................................................... 46
Meeting Minutes and Association Records ....................................... 46
Board of Directors Meetings ................... ......................................... ..46
ARTICLE XIV. RIGHTS OF MORTGAGEES ...................................................................... 46
Section 14. l.
Section 14.2.
Section t 4 .3.
Section 14.4.
Section 14.5.
Veterans Administration ................................................................... .46
Federal Housing Authority ................................................................ .47
Freddie Mac ......................................................................................... 48
Fannie Mae ................................................................................ ......... .49
General ..... ............................................................................................ 50
ARTICLE XV. GENERAL PROVISIONS ..............................................................................51
Section l 5.1.
Section 15.2.
S ection 15.3.
S ection 15.4.
Section 15.5.
Section 15 .6.
Section 15.7.
Section 15.8.
Section 15 .9.
Section 15 .10.
Section 15.11.
Section 15.12.
S ection 15.13.
Section 15.14.
111 r 6334.55.4
Enforcement. ................................. ....................................................... 51
Costs and Attorneys' Fees .................................................................. 5 1
Severability; Headings; Conflicts ......................................................52
Duration .. ........ ............................. ........................................................ 52
Materia l Amendment/Extraordinary Action ................................... 52
An1end1nent. .... ............... ............... ....................................................... 54
Special Amendment .......................................... .................................. 54
Waiver .................................................................................................. 55
An nexation of Additiona l Property ................................................... 55
Witbdra\vable Real Estate ..................................................................55
Management Contracts ......................................................................55
Dissolution ............................................................................................ 55
Negligence ............................................................................................ 56
Acceptance and Ratification .............................................................. 56
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S ection 15 . l S. Perpetuities .......................................................................................... 56
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DRCLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS FOR
WATERFRONT OF WEST CLAY
THIS DECLARAT10N OF COVENANTS, CONDITIONS AND RESTRICTIONS FOR
WATERFRONT OF WEST CLAY (the "Declaration"} is made a-; of March 30, 20 l 8 by Paul
Shoopman and Shelley Shoopman (jointly, the "Declarant").
RECITALS:
WHEREAS, Declarant is the owner of a certain parcel of real estate located in Hamilton
County, Indiana, which is more particularly described on Exhibit A attached hereto and
incorporated herein by this reference (the "Property"); and
WHEREAS, Declarant desires to create on the Property a residential community (the
"Comm.unity") which shall have pennanent open spaces and other common facilities for the
benefit of alt or certain of the residents of the Community, as more particularly set forth herein;
and
WHEREAS, 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 its intent
to subject the Prope11y 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 al 1 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; and
WHEREAS, Declarant has deemed it desirable for the efficient preservation of the values
of the Community to create an association known as Waterfront of W~st Clay Homeowners
Association, Inc., an Indiana nonprofit corporation (the "Association"), to which shall be
delegated and assigned the powers of owning, maintaining and administering the common areas
and facilities located within the Property and appurtenant to the Property, administering and
enforcing the covenants and resttictions made in and pursuant to this Declaration with respect to
the Prope11y, collecting and disbursing the assessments and charges hereafter created with
respect to the Property, and promoting the recreation, health, safety and welfare of the owners of
the Property and all parts thereof.
NOW, THEREFORE, 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) (except as set forth herein), mutual, non-exclusive rights, privileges and easements of
enjoyment on equal tenns and in common with all other owners of Lots (except as set forth
herein) in and to the use of any common areas and facilities; and forther, Declarant declares that
the Property shall be held, transferred, sold, conveyed, hypothccated, encumbered, leased,
rented, used, improved, and occupied subject to the provisions, agreements, covenants,
conditions, restrictions, reservations, easements, assessments, charges and liens hereinafter set
forth, all of 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
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or any pa11 thereof, their respective successors and assigns, and shall inure to the benefit of
Declarant and the successors in title to the Property or any part or parts thereof.
ARTICLE I.
DEFINITIONS
Section I . I . "Additional Property" shall have the meaning ascribed thereto in
Section 3 .2 of this Declaration.
Section 1.2. "Association" shall mean and refer to Waterfront of Cannel Homeowners
Association, [nc., an Indiana nonprofit corporation, and its successors and assigns.
Section 1.3. "Articles" shall mean and refer to the Articles of Incorporation of the
Association, as the same may be amended from time to time.
Section 1.4. "Authority Transfer Date'' shall have the meaning ascribed thereto in
Section 3.1 of this Declaration.
Section t .5. "Board of Directors" shall mean the elected body having its nonnal
meaning under Indiana nonprofit corporate law.
Section 1.6. "By-Laws" shall mean and refer to the By-Laws of the Association, as the
same may be amended from time to time.
Section 1.7. "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, including, but not limited to, gazebos and mail kiosks. The
private roads within the Community shall be considered Common Areas (except for Watcrbridge
Drive, Waterbridge Court, and Cold Creek Court, each of which is shown on the Site Plan, all of
which shall be considered Limited Common Areas). All of the Property that is not included in
any particular Lot, as shown on current or future approved plats of the Property and/or as
described herein, shal1 be considered to be a part of the Common Area or the Limited Common
Area (as hereinafter defined), as applicable. For drainage purposes only, the Lakes shall be
Common Area, and all Lots shall be assessed for the maintenance of the Lakes.
Section 1.8. "Common Expenses" shall mean and refer to expenses of administration
of the Association and expenses for the upkeep, maintenar:i.ce, repair and replacement of
Common Areas, and all sums lawfully assessed against the Owners by the Association, and all
sums, costs and expenses declared by this Declaration to be Common Expenses. The Common
Expenses shall specifically exclude any Limited Co1runon Expenses. One or more fountains may
be placed in the Lakes, the acquisition, maintenance and operating costs of which shall be
Common Expenses. The cost of acquisition, maintenance and operating costs of any secu1ity
that benefits all Lots, such as security cameras located in the Gate House that monitors all traffic
entering the Property from I 16th Street, shall be Common Expenses.
Section 1.9. "County" shall mean Hamilton County, Indiana.
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Section 1.10. "Declarant" shall mean and refer to Paul Shoopman and Shelley
Shoopman, or any successors or assigns to whom the foregoing assigns any or all of its rights as
Dedarant pursuant to this Declaration by assignment recorded in the Recorder's Office.
Section 1. l 1. "Declaration" shall mean and refer to this Declaration of Covenants,
Conditions and Restrictions for Waterfront of West Clay, which is to be recorded in the
Recorder's Office.
Section l .12. 11 Development Period" means the period of time commencing with
Declarant's execution and recording of this Declaration and ending when Declarant, or an
affiliate or subsidiary of Dcclarant, has completed the development and sale of, and no longer
owns, any Lot. The Development Peiiod shall recommence as to any Additional Property each
time Declarant acquires any part (or all) of the Additional Property.
Section 1.13. "Dwelling Unit" shall mean and refer to any improvement to the Property
intended for any type of independent ownership for use and occupancy as a residence by a single
household and shall, unless otherwise specified, include within its meaning (by way of
illustration but not limitation) a townhouse, zero-lot line home and a detached home.
Section 1.14. "Federal Agencies" shall mean (by way of illustration but not limitation)
the Federal Housing Authority, the Federal National Mortgage Association, the Government
National Mo1tgage Association, the Federal Home Loan Mortgage Corporation, the Department
of Housing and Urban Development, the Veterans Administration or any other govenunental
agency.
Section I. l 5. "Gate House" shall mean and refer to that certain gate or guardhouse on
Waterbridge Drive restricting access to and from the Private Lots.
Section 1.16. "Lake" or "Lakes" shall mean those certain bodies of water located on the
Property, as generally shown on the drawing attached hereto as Exhibit B the ("Site Plan"}.
Section l.17. "Limited Common Area" or "Limited 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 specifically identified Lots to the exclusion of other Lots.
Waterbridge Drive, Waterbri<lge Court and Cold Creek Court, the Gate House and the common
area located north of Waterbridge Drive to the east of the Gate House shall be considered
Limited Common Areas for the use and enjoyment of the Private Lots (as herdnafter defined).
The area between the rear of any Lot and the Lake shall be a Limited Common Area for the use
and enjoyment of the immediately adjacent Lot.
Section 1.18. "Limited Common Expenses" shall mean and refer to exptmse.s fur the
upkeep, maintenance, repair and replacement of Limited. Common Areas, and all sums lawfully
assessed against the Owners of the Dwelling Units or lots on the Property that are specifically
entitled to use or benefit of the Limited Common Area by the Association, and all sums, costs
and expenses declared by this Declaration to be Limited Common Expenses.
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Section 1.19. "Local Governing Authority" shall mean the applicable department,
board, commission or other body of the County or the City of Cannel, Indiana.
Section 1.20. "Lot" shall mean and refer to any discrete plot of land created hy and
shown on a lawfully recorded subdivision plat of the Property upon which a Dwelling Unit could
be constructed in accordance with applicable zoning ordinances.
Section 1.21. "Ma intenance Benefit Lot" or "M aintenance Benefit Lots " shall mean,
individually or collectively, the Lots designated by Declarant pursuant to supplement to this
Declaration that Declarant places of record, from time to time, for which certain maintenance
obligations are provided for in accordance with Section 8.2(c) and paid for by the Owners of all
Maintenance Benefit Lots in accordance with Section 8.2(c).
Section 1.22. "Maintenance Costs" means all of the costs necessary to keep the
facilities to which the tcnn applies operational and in good condition, including but not limited to
the cost of all upkeep, maintenance, repair, replacement, of all or any part of any such facility,
payment of all insurance with respect thereto, all taxes imposed on the facility and on the
underlying land, leasehold, easement or right-of-way, and any otht:r expense related to
continuous maintenance, operation or improvement of the facility.
Section 1.23. "Member" shall mean and refer to every person or entity who holds a
membership in the Association, as more particularly set forth in Article 11 below.
Section 1.24. "Mortgagee" shall mean and refer to any person or entity holding a first
mortgage on any Lot or the Common Area who has notified the Association of this fact in
writing. An "Eligible Mo1·tgagee" shall be a Mortgagee who has given notice to the Association
of its interest and requested all rights afforded Eligible Mortgagees under Article X IV.
Section 1.25. "Owner" shall mean and reter to the record owner, whether one (l) 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 (I) person or entity is the
record owner of a Lot, the tenn Owner ns used herein shall mean and refor to such owners
collectively, so that there shall be only one ( l) Owner of each Lot.
Section 1.26. "Permitted Signs" shall mean {i) customary real estate sale signs that
have received the prior written approval of the Architectural Review Board (as defined in Article
VII); and (ii) temporary construction and wooden home signage.
Section 1.27. "Person" shall mean an individual, firm, corporation, partnership,
association, trust, or other legal entity, or any combination thereof
Section l .28. "Private Lot" or "Pri.vate Lots" shall mean, individually or collectively,
the Lots designated as 85-109 on the Site Plan.
Section 1.29. "Property" shall mean that certain real property located in Hamilton
County, Indiana, which is more specifically described on Exhibit A attached hereto and
incorporated herein by reference, as the same may be duly subdjvided and platted, and any
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additions thereto which, from time to time, may be subjected to the covenants, conditions,
restrictions, reservations, easements, charges and liens of this Declaration.
Section 1.30. ''Recorder's Office" shall mean the Office of the Recorder of Hamilton
County, Indiana.
Section l .3 l. "Regular Assessments" shall mean and refer to assessments levied
against all Lots to fund Common Expenses.
Section 1.32. "Restrictions" shall mean and refer to the agreements, conditions,
covenants, restrictions, easements, assessments, charges, liens, and other provisions set forth in
this Declaration with respect to the Property, as the same may be amended from time to time.
Section l .33. "Special Assessments" shall mean and refer to assessments levied m
accordance with Section 5.7 of this Declaration.
Section I .34. "Structure" shall mean any temporary or permanent improvement or
building or portion thereof, including, without limitation, walls, decks, patios, stairs, windows,
window boxes, doors, fences, play equipment, docks, trampolines, basketball goals, greenhouses,
skylights, address markers, mailboxes, name plates, flag poles, lawn ornaments, fire pits, trees,
hedgt:s, sluubbery, 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 1.35. "Supplt!mental Declaration" shall mean an amendment or supplement to
this Declaration executed by or consented to by a Declarant or its successors or assigns, and
recorded in the public records of Hamilton County, fndiaoa, which subjects Additional Property
to this Declaration and/or imposes, expressly or by reference, additional restrictions an<l
obligations on the Additional Property described thc::rdn. The tenn shall also refer to the
instrument recorded by a Declarant or its successors or assigns to subject Additional Property to
this Declaration.
ARTICLE II.
MEMBERSHIP
Every Owner of a Lot that 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 (I) 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:
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Class A:
Class B:
Class A Members shall be all Members with the exception of the Class B
Member. A Class A Member shall be entitled to one (I) vote for each Lot
in which it holds the interest required for membership pursuant to
Atticle n herein with respect to each matter submitted to a vote of
Members upon which the Class A Members are entitled to vote.
The Class B Member shall be Declarant and all successors and assigns of
Dedarant designated by Declarant as Class B Members in a written notice
mailed and delivered to the resident agent of the Association. A Class B
Member shall be entitled to fifteen (15) votes for each Lot in which it
holds the interest required for membership pursuant to Article l1 herein.
Declarant's Class B membership interest shall be converted to and shall
become a Class A membership interest with one (I) vote for each Lot in
which it holds an interest upon the happening of any of the following
events, whichever occurs first (the "Authority Transfer Date"):
(a) the date upon which at least ninety-five percent (95%) of the Lots
have been transferred to an Owner other than Declarant or Builder
(as defined in Section 4.3(b) below); or
(b) seven (7) years from the date of recordation of this Declaration.
Section 3.2. Expansion. If Declarant exercises its rights to expand the Property to
include additional real estate to be subject to this Declaration including, but not limited to,
additional real estate to be used as Lots or Common Area (collectively, "Additional Property"),
and in the event that Declarant's Class B membership shall have ceased as provided in
Section 3. J, above, Declarant's Class B membership interest shall be revived with respect to all
Lots owned by Declarant, including those, if any, as to which it had previously had its Class B
membership interest converted to Class A membership interests. In addition, in such event,
without the requirement of further action or consent by any Member, all of Declarant's rights and
privileges hereunder which it enjoyed prior to the Authority Transfer Date shall also be
automatically renewed and reinstated. Any such new and/or revived Class B membership
interests shall cease and be converted to Class A member.ship interests upon the happening of
any of the following events, whichever occurs first:
(a) the date upon which at least ninety-five percent (95%) of the Lots
have been transferred to an Owner other than Declarant or Builder
(as defined in Section 4.3 (b) below); or
(b) the later of {i) seven (7) years from the date of recordation of this
Declaration or (ii} five (5) years from the date of rccordation of the
document subjecting such Additional Property to this Declaration.
Section 3.3. Multiple Own ership lnter ests. When more than one (I) Person
constitutes the Owner of a particular Lot, all of such Persons shall be Members of the
Association, but all of such Persons, collectively, shall have only one (I) vote for such Lot. The
vote for such Lot shall be exercised as such Persons constituting the Owner of the Lot determine
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among themselves, and may be exercised by any one (I) of the Persons holding such ownership
inforest, 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 cast for such Lot shall not be counted,
but the Member whose vote is in dispute shall be counted as present at the meeting for quorum
purposes if the protest is lodged at such meeting. In no event shall more than one (l) vote be
cast with respect to any Lot.
ARTICLE IV.
DECLARATION OF RESTRICTIONS AND STATEMENT OF PROPERTY RIGHTS
Section 4.1. Declaration. Declarant hereby expressly dedares that the Property and
any additions thereto pursuant to this Declaration shall be held, transferred, and occupied subject
to these Resnictions. The Owners of each Lot are subject to these Restrictions, and all other
Persons, whether (i) by acceptance of a deed from Declarant, or its successors or assigns,
conveying title thereto, or the execution of a conh·act for the purchase thereof, whether from
Declarant or a subsequent Owner of such Lot, or {ii) by the act of occupancy of any Lot, shall
conclusively be deemed to have accepted such deed, executed such contract and undertaken such
occupancy subject to each Restriction and agreement herein contained. By acceptance of such
deed, or execution of such contract, or undertaking such occupancy, each Owner and each other
Person for itself, its heirs, personal representatives, successors and assigns, acknowledges the
rights and powers of Declarant, the Architectural Review Board and of the Association with
respect to these Restrictions, and also, covenants, agrees and consents to and with Declarant. the
Architectural Review Board, the Association, and the Owners and subsequent Owners of each of
the Lots affected by these Restrictions, to keep, observe, comply with and perfom1 such
Restrictions and agreements.
Section 4.2. Property Rights. Except as expressly set forth herein, every Owner shall
have a right and easement of use, access, and enjoyment in and to the Common Areas, and such
easement shall be appurtenant to and shall pass with the title to every Lot (and every Owner of a
Private Lot shull have a right and easement of use, access, and enjoyment in and to the Limited
Common Areas, and such easement shall be appurtenant to and shall pass with the title to every
Private Lot), subject to:
(a) this Declaration, as it may be amended from time to time, and to any
restrictions, limitations or other matters contained in any deed conveying any pru1 of the
Property to the Association;
{b) the right of the Association to limit the number of guests of Memhers on
the Common Area (or the Limited Common Area, as applicable), or to make any part of
the Common Area available to occupants of adjacent real estate or members of lhc
general public;
(c) the right of the Association to adopt and enforce rnles and regulations
governing the use of the Common Area (or the Limited Common Areas, as applicable),
and the personal conduct of Owners, occupants and guests thereon;
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(d) the right of the Association to impose reasonable membership
requirements and charge reasonable admission or other fees for the use of any
recreational facility situated upon the Common Area (or the Limited Common Area, as
applicable);
(e) the right of the Association to suspend (i) the Members' voting rights, (ii)
the Members' right to run for office within the Association, and (iii) rights of a Member
to the use of any nonessential services offered by the Association, provided that access
and the provision of utilities to the Lot through the Common Area (or the Limited
Common Area, as applicable) shall not be precluded, for (x) a period during which any
assessment against such Member's Lot remains unpaid for six (6) months or more or (y)
for a period not to exceed sixty (60) days for any infraction of its published rules and
regulations;
(f) 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 Local Governing Authority 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 a Local Governing Authotity or other
appropriate govenunental 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 must have been sent to all
Members not less than twenty-five (25} days nor more than fifty (50) days in advance of
the meeting setting forth the purpose of the meeting. Upon such assent and in accordance
therewith, the officers of the Association shall execute the necessary documents to
effectuate the transfer under this subpara graph CD . The re-subdivision ur adjustment of
the boundary lines of the Common Arca or Limited Common Area and the granting of
casements by the Association shall not be deemed a transfor within the meaning of this
A11icle;
(g) the right of the Association to grant, with or without payment to the
Association, licenses, rights-of-way and easements under, across, through or over any
portion of the Common Area or the Limited Common Area;
(h) the right of the Association to mortgage any or all of the Common Area or
the Limited Conunon Area owned by the Association, upon the approval of two-thirds
(2/3) of the membership of each class of Members of the Association;
(i) the right of Declarant or the Association to re-subdivide and/or adjust the
boundary lines of the Conunon Area or the Limited Common Area consistent with
applicable zoning and subdivision ordinances as either deems necessary for the orderly
development of the subdivision;
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(j) all rights reserved by Declarant in Articl e X hereat; and
(k) the light of Declarant to erect, maintain and operate real estate sales and
const1uction offices, displays, signs and other facilities for sales, marketing and
construction purposes.
The Association, acting through the Board of Directors, may exercise these rights without
the need for any approval from any Member, Mortgagee or any of the Federal Agencies, unless
provided otherwise in this Declaration.
Section 4.3. Common Area .
(a) Ownership. Declarant may retain legal title to the Common Area during
the Development Period, but shall convey title to the Common Area to the Association
free and clear of all liens and other financial encumbrances, exclusive of the lien for taxes
not yet due and payable, no later than the end of the Development Period. The Common
Areas shall remain private, and neither Declarant's execution, or recording of an
instrument poatraying the Common Areas, nor the doing of any other act by Declarant is,
or is intended to be, or shall be construed as, a dedication to the public of the Common
Areas. Declarant or the Association may, however, dedicate or transfer all or any part of
t11e Common Areas to any public agency or utility for roadways, utility or parks purposes,
or for other public purposes.
(b) Maintenance. The Association shall be responsible for maintaining the
Common Area and the areas appurtenant to the Property and the Maintenance Costs
thereof shall be assessed as a Regular Assessment against all Lots subject to assessment,
as further described in Article VIJJ herein. Notwilhstan<ling anything to the contrary set
forth in this Declaration, from and after the date upon which any Lot is first conveyed to
an Owner other than Declarant or any professional homebuilder selected by Declarant as
a builder of a Dwelling Unit on a Lot (each, a "Builder"), or an affiliate of Declarant or
any such Builder, the Association shall be solely responsible for all costs incurred with
respect to the maintenance and repair of the Common Area, whether or not such
Conunon Area has then been conveyed to the Association pursuant to this Dedaration,
and regardless of whether such costs are incun-ed by Declarant, Builder or an affiliate of
Declnrant or any such Building. All such costs incurred by Declarant, Builder, or an
affiliate of Dcdarant or any such Builder, shall be reimbursed by the Association within
ten (I 0) days of the Association's receipt of an invoice from the party incurring such
costs.
(c) Control. The Association, subject to the tights of Declarant and the
Owners set forth in this Declaration, shall be responsible for the exclusive management
and control of the Common Areas and all improvements thereon and, except as otherwise
provided herein or in a Supplemental Declaration, shall keep the C01mnon Areas in good,
clean, attractive and sanitary condition, or<ler, and repair.
(d) Structures. Under~rround utility facilities and except as provided in this
Declaration, or any Supplemental Declaration, no pennanent Structure or improvements
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shall be made to or installed on the Common Area other than lighting, seating, walkways,
paved paths, planting structures, the mail kiosk, the gazebo, pedestrian b1idges, dams, an<l
fountains or other non-recreational water features. The use of the Common Area shall be
subject to rules and regulations adopted by the Board of Directors which are not
inconsistent with the provisions of this Declaration or any Supplemental Declaration.
(e) Delegation of Use. Any Member may delegate his, her or its right of
enjoyment to the Common Area and facilities to the members of his, her or its immediate
household, his, her or its tenants or contract purchasers who reside on the Member's Lot.
However, by accepting a deed to such Lot, each Owner, for itself individually, covenants
that (i) every rental agreement with respect to the Lot shall contain specific conditions
which require the tenant thereunder to abid~ by all Association covenants, rules and
regulations, without exception, (ii) each such tenant will be provided, prior to the
execution of such lease, a complete set of all Association covenants, rules and
regula~ions, and (iii) the Owner shall comply with the requirements of Section 6. 19.
(f) Damage or Destruction by Owner. In the event any Common Area is
damaged or destroyed by an Owner or any of his, her or its guests, tenants, licensees,
agents, members of his tinnily, or any other Person having or gaining access to the
Owner's Lot, such Owner authorizes the Association to repair said damaged area, and an
amount equal to the costs incurred to effect such repairs shall be assessed against such
Owner as a Special Assessment and shall constitute a lien upon the Lot of said Owner
until paid in full. The Association shall repair said damaged area in a good and
workmanlike manner in conformance with the original plans and specifications of the
area involved, or as the area may have been modified or altered subsequently by the
Association in the discretion of the Association.
(g) Density of Use. Dc;:clarant expressly disclaims any wananties or
representations regarding the density of use of the Common Areas or any facilities
located thereon
Section 4.4. Limited Common Ana.
(a) Ownership. Declarant may retain legal title to the Limited Common Area
during the Development Pc;:riod, but shall convey title to the Limited Common Area to
the Association free and clear of all liens and other financial encumbrances, exclusive of
the lien for taxes not yet due and payable, no later than the end of the Development
Period. The Limited Common Areas shall remain private, and neither Declarant's
execution, or recording of an instrument portraying the Limited Common Areas, nor the
doing of any other act by Declanmt is, or is intended to be, or shall be construed as, a
dedication to the public of the Limited Common Areas. Declarant or the Association
may, however, dedicate or transfer all or any pati of the Limited Common Areas to any
public agency or utility for roadways, utility or parks purposes, or for other public
purposes.
(b) Mai11tena11ce. The Associntion shall be responsible for maintaining the
Limited Common Arca and the areas appurtenant to the Property and the Maintenance
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Costs thereofshall be assessed as a Regular Assessment against all Private Lots subject to
assessment, as further described in Article VIU herein. Notwithstanding anything to the
contrary set forth in this Declaration, from and after the date upon which any Lot is first
conveyed to an Owner other than Declarant, or a Builder, or an affiliate of Declarant or
any such Builder, the Association shall be solely responsible for all costs incurred with
respect to the maintenance and repair of the Limited Conunon Area, whether or not such
Limited Common Area has then been conveyed to the Associatjon pursuant to this
Declaration, and regardless of whether such costs are incurred by Declarant, Builder or
an affiliate of Declarant or any such Building. All such costs incu1Ted by Declarant,
Builder, or an affiliate of Declarant or any such Builder, shall be reimbursed by the
Association within ten (10) days of the Association's receipt of an invoice from the party
incuning such costs.
{c) Contro l. The Association, subject to the rights of Declarant and the
Owners set forth in this Declaration, shall be responsible for the exclusive management
and control of the Limited Common Areas and all improvements thereon and, except as
otherwise provided herein or in a Supplemental Declaration, shall keep the Limited
Common Areas in good, clean, attractive and sanitary condition, order, and repair.
(d) No Pennanent Structures. Except for underground utility facilities and
except as provided in this Declaration, or any Supplemental Declaration, no permanent
Structure or improvements shall be made to or installed on the Limited Common Area
other than lighting, seating, walkways, paved paths, planting structures, and fountains or
other non-recreational water features except for a dock that may be permitted for Lots 2
and 101-108 as provided for herein. The use of the Limited Common Area shall be
subject to rules and regulations adopted by the Board of Directors which are not
inconsistent with the provisions of this Declaration or any Supplemental Declaration.
(e) Delegation of Use. Any Member entitled to use the Limited Common
Area may delegate his, her or its right of enjoyment to the Limited Common Arca and
facilities to the members of his, her or its immediate household, his, her or its tenants or
contract purchasers who reside on the Member's Private Lot. However, by accepting a
deed to such Private Lot, each Owner, for itself individually, covenants that (i) every
rental agreement with respect to the Private Lot shall contain specific conditions which
require the tenant thereunder to abide by all Association covenants, rules and regulations,
without exception, (ii) each such tenant will be provided, prior to the execution of such
lease, a complete set of all Association covenants, mies and regulations, and (iii) the
Owner shall comply with the requirements of Section 6.19.
(f) Damage or Destructi.on by Owner. In the event any Limited Conunon
Area is damaged or destroyed by an Owner or any of his, her or its guests, tenants,
licensees, agents, members of his family, or any other Person having or gaining access to
th~ Owner's Private Lot, such Owne::r authori:l'.:es the Association to repair said damaged
area, and an amount equal to the costs incurred to effect such repairs shall be assessed
against such Owner as a Special Assessment and shall constitute a lien upon the Private
Lot of said Owner until paid in full. The Association shall repair said damaged area in a
good and workmanlike manner in confonnanee with the original plans and specifications
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of the area involved, or as the area may have been modified or altered subsequently by
the Association in the discretion of the Association.
(g) Density of Use. Dcclarant expressly disclaims any warranties or
representations _regarding the density of use of the Limited Common Areas or any
facilities located thereon.
ARTICLE V.
ASSESSMENTS
Section 5.1. Creation of the Lien and Pei·sonal Obligation for Assessments. Each
Owner of a Lot covenants and agrees, by acceptance of a deed therefor, whether or not it shall be
so expressed in any such deed or other instrument of conveyance, to pay to the Association: (a)
Regular Assessments, (b) Special Assessments, and (c) any other amounts as may be provided
for hereunder to be due from any Owner in cormection with his ownership of a Lot. Such
assessments are to be established and collected as hereinafter provided. The Association's
Regular Assessments and Special Assessments, together with interest thereon, late fees (as
contemplated in Section 5.6(d) below), costs of collection thereof, and reasonable attorneys'
fees, as hereinafter provided, shall be assessed against each applicable Owner's Lot and shall be a
continuing lien upon the Lot against which each assessment is made. Each such assessment,
together with interest, costs, and reasonable attorneys' fees, shall also he the personal obligation
of the person who was the Owner of such Lot at the time the assessment became first due. The
Regular Assessments and Special Assessments, when assessed upon resolution of the Board of
Directors for each year, shall become a lien on each Lot in the amount of the entire Regular
Assessment or Special Assessment, but shall be payable in twelve equal installments collected on
a monthly basis.
Section 5.2. Purpose of Assessment. The Regular Assessments levied by the
Association shall be used exclusively, in the reasonable discretion of the Board of Directors of
the Association, for the promotion of the recreation, health, safety and welfare of the residents in
the Property, for the improvement, maintenance and repair of the Conunon Area, for the
improvement, maintenance and repair of Lots (as hereinafter provided), for the performance of
the obligations and duties of the Association and for other purposes only as specifically provided
herein. For any Owner of a Private Lot, such Owner's Regular Assessment shall also be used, in
the reasonable discretion of the Board of Directors of the Association, for the improvement,
maintenance and repair of the Limited Common Area. For any Owner of a Maintenance Benefit
Lot, such Owner's Regular Assessment shall also be used to pay for the costs of the maintenance
expenses set forth in Section 8.2(c).
Section 5.3. AnuuaJ Accounting. Annually, after the close of each fiscal year of the
Association and prior to the date of the annual meeting of the Association next following the end
of such fiscal year, the Board of Directors shall cause to be prepared and furnished to each
Owner a financial statement, which statement shall show all receipts and expenses received,
incurred and paid during the preceding fiscal year. Any costs charged to the Association for the
preparation of said statements shall be a Common Expense.
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Section 5.4. Proposed Annual Budget. Annually, on or before the date of the annual
or special meeting of the Association at which the budgel is to be acted upon, the Board of
Directors shall prepare or cause tu be prepared a proposed armual budget for the next ensuing
fiscal year estimating the estimated surplus or deficit as of the end of the then-current budget
year, total amount of estimated revenues and the Common Expenses and Limited Common
Expenses for such next ensuing fiscal year and shall furnish a copy of such proposed budget to
each Owner at or prior to the time the notice of such meeting is mailed or delivered to such
Owners. The annual budget shall be submitted to the Owners at the designated meeting of the
Association for adoption and, if so adopted, shall be the basis for the Regular Assessments for
the next ensuing fiscal year. At such armual or special meeting of the Owners, the budget may
be approved in whole or in part or may be amended in whole or in part by a majority vote of the
Owners; provided, however, that in no event shall such meeting of the Owners be adjourned until
an atmual budget is approved and adopted at such meeting, whether it be the proposed annual
budget or the proposed annual budget as amended. The annual budget, the Regular Assessments
and all sums assessed by the Association shall be established by using generally accepted
accounting principles applied on a consistent basis. The failure or delay of the Board of
Directors to prepare a proposed annual budget and to furnish a copy thereof to the Owners shall
not constitute a waiver or release in any manner of the obligations of the Owners to pay the
Common Expenses (or, if applicahle, the Limited Common Expenses) as herein provided,
whenever detennined. In the event there is no annual budget approved by the Owners as herein
provided for the cmTent fiscal year, whether before or atler the meeting of the Association at
which the budget is to be acted upon, the Owners shall continue to pay Regular Assessments
based upon the last approved budget or, at the option of the Board of Directors, Regular
Assessments based upon one hundred ten percent (I l 0%) of such last approved annual budget,
as a temporary budget.
Section 5.5. Establishment of Regular Assessment. The Association must levy in
each of its fiscal years a Regular Assessment against each Lot. The amount of such Regular
Assessment shall be established by the Board of Directors, subject to the limitations imposed by
Section 5 .6 below, and written notice of the same shall be sent tu every Owner at least thirty (30)
days in advance of the commencement of each Regular Assessment period, with the exception of
the first period. Regular Assessments against each Lot shall be paid in advance, payable in
twelve equal monthly installments. Alt payments of Regular Assessments and Special
Assessments shall be non-refundable, and all collections and funds held by the Association on
account thereof shall be appurtenant to and be applied for the benefit of the respective Lot. In no
event shall any Owner be due any rebate or credit from the Association upon resale or other
transfer or conveyance for prepaid Regular Assessments or Special Assessments.
Section 5.6. Regular Assessm ents. Commencing in the year of the conveyance of the
first Lot to an Owner other than Declarant, the Regular Assessment shall be Two Hundred
Seventy-Five and 00/100 Dollars ($275.00) per month.
(a) Upon January I of the year immediately following the first conveyance of
a Lot to an Owner other than Dcclarant, and upon January l of each year thereafter, the
Regular Assessment shalt increase, effective as of Janua1y I 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 and other
18
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Common Area and Lot maintenance services, plus (ii} an amount equal to the amount of
the Regular Assessment for the immediately preceding year multiplied by ten percent
(10%).
(b) The Board of Directors may determine not to increase the Regular
Assessment to the full extent of the automatic increase provided in subsection (a) above,
in which case the Board of Directors shall specify the amount of such lesser Regular
Assessment.
(c) Upon and after January l of the year immediately following the first
conveyance of a Lot to an Owner other than Dcclarant, the Regular Assessment may be
increased above that established by su bsection (a) above; provided, however, that any
such change must have the consent of at least fifty percent (50%) of the votes of those
~embers who are entitled to vote and who, in fact, do vote, 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 Memhers not less than thirty
(30) days nor more than sixty (60) days in advance of the meeting.
(d) The Regular Assessment against ench Lot shall be paid in monthly
installments, each of which is paid in full in advance by the due dates specified by the
Board of Directors, the first of which due date shall not be earlier than fifteen (15) days
after the written notice of such Regular Assessment is given to the Owners. Monthly
installments of Regular Assessments shall be due and payable automatically on their
respective due dates without any notice from the Board of Directors or the Association,
and neither the Board of Directors nor the Association sha11 be responsible for providing
any notice or statements to Owners for the same. If an Owner fails to pay any
semiannual installment of any such Regular Assessment on or before the due date
established by the Board of Directors, a late fee in the amount of $25.00 will be added to
the a.mount due, and any such installment, together with such late fee, will be and remain,
immediately due and payable.
(e) Payment of the Regular Assessment shall be made to the Board of
Directors or a managing agent, as directed by the Board of Directors.
(f) The Regular Assessment for each fiscal year of the Association shall
become a lien on each separate Lot as of the first day of each fiscal year of the
Association, even though the final detennination of the amount of such Regular
Assessment may not have been made by that date.
Section 5.7. Special Assessments. Jn addition to the Regular Assessment authorized
above, the Association may levy, in any assessment year, a Special Assessment applicable to that
year for the purpose of defraying, in whole or in part, the cost of any constrnction,
reconstruction, repair or replacement of capital improvements upon the Common Area or the
Limited Common Area, including the fixtures and personal property related thereto, the cost of
maintenance, repair or replacement of the Lots, as herein provided, or for any other specified
purpose. Without limiting the generality of the foregoing provisions, Special Assessments may
be made by the Board of Directors from time to time to pay for capital expenditures and to pay
19
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for the cost of any repair or reconstruction of damage caused by fire or other casualty or disaster
to the extent insurance proceeds am insufficient therefor under the circumstances described in
this Declaration. Except in the case of damage or destruction caused by an Owner or any of his,
her or its guests, tenants, licensees, agents, members of his family, or any other Person having or
gaining access to the Owner's Lot as contemplated by Section 4.3(f) or by Section 4.4(t), any
such Special Assessment shall be levied against all of the Lots which benefit from the
construction, reconstrnction, repair or replacement of capital improvements giving rise to the
Special Assessment, pro rata according to each Lot's benefit, as reasonably determined by the
Board of Directors, which determination shall be final. l.n the case of damage or desttuction
caused by an Owner or any of his, her or its guests, tenants, licensees, agents, members of his,
her or its family, or any other Person having or gaining access to the Owner's Lot as
contemplated by Section 4.3(t) or by Section 4 .4(.f), the Special Assessment may be levied solely
against that Owner. Notwithstanding the fact that in some instances, this Declaration may
provide that certain items of routine and ordinary repair and maintenance should be perf01med
by the Association, the Association shall nevertheless retain the right to assess the costs thereof
to any Owner or group of Owners as a Special Assessment. To be effective, any such Special
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, and written notice setting forth the purpose
of the meeting must have been sent to all Members not less than thirty (30) days nor more than
sixty (60) days in advance of the meeting.
Section 5.8. Quorum for any Action Authorized Under Sections S.6 or 5.7. At the
first calling of a meeting under Section 5.6 or Section 5.7 of this Article, the presence at the
meeting of Members or proxies entitled to cast sixty percent (60%) of all the votes with respect
to 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 5.6 and Section 5.7 and subject further 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 5.9. Working Capital Assessment. In addition to the Regular and Special
Assessments authorized above, the Association may establish and maintain a working capital
fund. ff a Working Capital Assessment is made, then, at the closing of each sale or other transfor
of a Lot by Declarant thereafter, the purchaser of such Lot shall pay to the Association a working
capital assessment in the amount established by the Board, which shall not exceed Five Hundred
Dollars ($500.00) (a "Working Capital Assessment"), which payment shall be non-refundable
and shall not be considered as an advance payment of an assessment or other charge owed to the
Association with respect to such Lot. The Working Capital Assessment shall be used as
detennined by Declarant in its sole and reasonable discretion.
Section 5. lO. Rate of Assessment. The Regular Assessment shall be fixed at a unifonn
rate for all Lots, except for unoccupied Lots owned by Declarant; provided, however, that the
Regular Assessment for all Private Lots shall be greater than the Regular Assessment for all
other Lots due to the inclusion of Limited Common Expenses within such Regular Assessment,
though such Regular Assessmt:nt shall be fixed at a uniform rate between all Private Lots; and
20
I\ I I 6.l3455.4
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provided, further, that the Regular Assessment for all Maintenance Benefit Lots shall be different
than the Regular Assessment for all other Lots due to the inclusion of the expenses resulting
from the maintenance obligations set forth in Section 8.2(c ) within such Regular Assessment,
though such Regular Assessment shall be fixed at a uniform rate between all Maintenance
Benefit Lots. Except in the case of damage or destruction caused by an Owner as contemplated
by Section 4.3(f) or by Section 4.4<0, and except for unoccupied Lots owned by Declarant, the
Special Assessments shall be fixed at a unifonn rate for all Lots which benefit from the
construction, reconstruction, repair or replacement of capital improvements giving rise to the
Special Assessment, pro rata according to each Lot's benefit, as reasonably detennined by the
Board of Directors, which detennination shall be final. Notwithstanding the foregoing or
anything else contained ht:rein, no Rt:gular Assessments or Special Asst:ssments or other charges
shall be owed or payable by Declarant with respect to any Lot or other po11ion of the Prope1ty
owned by Declarant while the same is owned by Declarant, nor shall any such assessments or
charges become a lien on any such Lot or other portion of the Property owned by Declarant.
Section 5. l l. Notice of Assessment and C ertificate. Written notice of the Regular
Assessments and any Special Assessments shall be st:nt to every Member. The due dates for
payment of the Regular Assessments and any Special Assessments shall be established by the
Board of Directors. The Association shall, upon written demand by a Member 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 and the amounts of any
outstanding assessments. A reasonable charge may be made by the Board of Directors for the
issuance of these certificates, which charge shall be paid to the Board of Directors in advance by
the requesting Member. Such certificates shall be conclusive evidence of payment of any
assessment therein stated to have been paid.
Section S.12. Remedies of the Association in the Event of Default. Each Owner shall
be personally liable for the payment of all Regular Assessments and Special Assessments against
his Lot. Where the Owner constitutes or consists of morn than one Person, the liability of such
Persons shall be joint and several. If any assessment pursuant to this Declaration is not paid
within thirty (30) days after its initial due date, the assessment shall bear interest from the date of
delinquency at the rate of twelve percent (l 2%) per annum. In addition, in its discretion, the
Association may:
(a) impose a late fee as provided by Sectio n 5.6 herein;
(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
attomeys' 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 samt:;
(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, provided
that access and the provision of utilities to the Lot through the Common Area shall not he
precluded. A Member, whose rights have been suspended in this manner, shall have no
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right to any refund or suspension of his obligations to pay such assessments or any other
assessments becoming due 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 Limited Common Area, as applicable) or facilities,
abandonment of its Lot, or the failure of the Association or the Board of Directors to perfonn
their respective duties.
[n any action to foreclose the lien against a Lot pursuant to Section 5. I 2(b) above, the
Owner and any occupant of the Lot and Dwelling Unit that are the subject of such action shall be
jointly and severally liable for the payment to the Association of reasonable rental for such Lot
and Dwelling Unit, and the Board of Directors shall be entitled to the appointment of a receiver
for the purpose of preserving the Lot and Dwelling Unit and to collect the rentals and other
profits therefrom for the benefit of the Association to be applied to the unpaid Regular
Assessments or Special Assessments. The Board of Directors may, at its option, bring a suit to
recover a money judgment for any unpaid Regular Assessment or Special Assessment without
foreclosing (and without thereby being deemed to have waived) the lien securing the same. In
any action to recover any Regular Assessment or Special Assessment, or any other debts, dues or
charges owed the Association, whether by foreclosure or otherwise, the Board of Directors, for
and on behalf of the Association, shall be entitled to recover from the Owner of the respective
Lot and Dwelling Unit all of the costs and expenses incuned as a result of such action (including,
but not limited to, reasonable attomeys1 fees) and interest upon all amounts due at the rate of
twelve percent ( 12%) per annum, which shall accrue from the date such assessments or other
amounts become first due, until the same are paid in fuH.
Section 5.13. Subordination of the Lien to Mortgages. 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 5.13 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 lien 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) that became due prior to such sale, transfer
or conveyance, and that the extinguislunent of such lien shall not relieve the prior Owner from
personal liability therefor. 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 5.14. Ex.empt Property. The following pmtions of the Property shall be
exempt from the assessments created by this Declaration: (a) those portions of the Property that
are dedicated to and accepted by a local public authority; (b) the Conunon Area: and {c) the
Limited Common Area. Except as otherwise provided in Section 5.10 hereof, no developed or
undeveloped Lot, land or improvements devoted to dwelling use shall be exempt from said
assessments.
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Section 5 .15. Repla cement Reserve Fund. The Association shall establish and
maintain a reserve fund ("Replacement Reserve Fund") for the maintenance, repair and
replacement of the Common Arca and the Limited Common Area, and improvements located
thereon and the maintenance and repair of the Lots, as hereinafter provided, by the allocation and
payment to such reserve fund of an amount lo 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 Regular Assessment. The Replacement Reserve Fund (i) shall be conclusively deemed to
be a Common Expense of the Association, (ii) shall be maintained by the Association in a
separate, interest-bearing account or accounts with any banking institution, the accounts of which
are insured hy any state or by any agency of the United States of America as selected by the
Board of Directors, and (iii) may be expended only for the purpose of effecting the replacement
of the Common Area or the Limited Common Area, major repairs to, replacement and
maintenance of any improvements within the Conunon Area or the Limited 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, for start-up expenses and operating contingencies of a nonrecurring nature relating
to the Cmmnon Arca or the Limited Common Arca, and for the maintenance and repair of the
Lots as herein provided. 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 applutenance of the Member's Lot and shall not be separately withdrawn, assigned or
transferred or otherwise separated from the Lot to which it appertains and shall be deemed to be
transferred with such Lot.
ARTICLE VI:
USE, RESTRICT IONS AND ARCHITECTURAL CONTROLS
Section 6.1. Residential Use. The Propet1y shall be used ex.elusively for residential
purposes. 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 structure shall be
erected, altered, placed or pennitted to remain on any Lot other than one ( t) Dwelling Unit and
appurtenant Structures, approved by the Association and appropriate Local Governing
Authorities, for use solely by the occupant(s) of the Dwelling Unit.
Section 6.2. Architectural Review Board Approval. No Structure or addition to a
Structure shall be erected, placed, painted, altered or externally modified or improved on any Lot
unless and until (i) 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 have been filed with and approved in writing in all respects by the
Architectural Review Board (as defined in Article VII below} and, if re4uired, by appropriate
Local Governing Authorities; and (ii) all constrnction permits have been obtained, if applicable
or required.
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Section 6.3 . Laundry. No clotheslines may be erected on any Lot, and no clothing,
sheets, blankets, rugs, laundry or wash shall be hung out, exposed, aired or dried on any portion
of the Property within public view.
8ection 6.4. S ight Lines. No fence, wall, tree, hedge or shrub shall be maintained in
such a manner as to obstruct sight lines for vehicular traffic.
Section 6.5 . Lot Maintenance. Each Owner shall, at all times, maintain his Lot and
Dwelling Unit and all appurtenances thereto free of debris or rubbish and in good repair and in a
state of neat appearance from all exterior vantage points, in conjunction w ith the exterior Lot
mai ntenance provid~ by the Association as detailed in Article VIII hereafter.
Section 6.6. Addit ion s to Land sca pe I mpl'ovcm ents. No tree, shrub, or other
vegetation or landscape improvement originally installed by Declarant or a Builder shall be
removed or altered by an Owner unl ess such item is dea<l or decayed and dangerous to human
health, safety, or welfare, and the removal has been approved in writing in advance by the
Architectural Review Board, or removal is ordered by a Local Governin g Authority or b y the
Architectural Review Board to maintain proper sightlines. No approval for removal of any trees
or shrubs shall be granted by the Architectural Review Board unless appropriate provisions are
made for replacing the removed trees or shrubs. Each Owner is pennitted to add to the landscape
of his Lot certain landscaping features within approved flowerbeds; however, prior to adding any
such landscape, the Owner of such Lot must submit a written l andscape plan to the Architect ural
Review Board for its review and obtain the wlitten approval of such Architectural Review
Board.
Section 6.7. Nuisance. No noxio us or offensive activity shall be carried on or
permitted to be carried o n upon the Property, nor shall anything be done or placed thereon which
is or may become an annoyance or nuisance to the neighborhoo d. Nothing sha ll 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 o r the Limited Common Areas, which will cause an increase in the rate of
insurance paid by the Association or any other Owner. No Owner shall pennit 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 tl1e Common Arca, the Limited Common Area, Lots, or any other Owner, or
which would be a vio lation of any law or ordinance or the requirements o f any insurance
underwriting or rating bureau. No Dwelling Unit or Lo t 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
n uisance, annoyance, or inconveni ence, 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, am plifiers 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 pennitted on any
Lot (except during a period of construction and then only upon obtaining prior written consent of
the A rchitectural Review Board), and no sanitary waste or other wastes shall be permitted to be
exposed.
Section 6 .8. Signs. Permitted signs shall include only those professionally constructed
signs which advertise a home on a Lot for sale by a licensed and registered real estate
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broker/company, and which are non-illuminated and less than or equal to six (6) square feet in
size ("Permitted Signs"). With the exception of Permitted Signs, all signs including, but not
limited to those advertising a garage sale, must he approved by the Architectural Review Board
before being placed upon any Lot, or displayed from a Dwelling Unit. No more than one sign
(including a Permitted Sign) may be displayed on a Lot or from a Dwelling Unit at any one time.
Jn addition, no more than one sign (including a Permitted Sign) may be displayed in the
Community by an entity owning multiple Lots. All Pennitted Signs advertising a Lot for sale
shall be removed within three (3) business days from the date of the conveyance of the Lot or the
execution of the lease agreement, as applicable. Signs advertising a Lot or Dwelling Unit for
"Rent to Own", or advertising a similar financing arrangement, are expressly prohibited and may
not bt: placed on any Lot or displayed from a Dwelling Unit constructed thereon. The Declarant
and any Builder are expressly exempt from the requirements of this Section 6.8 and may post
any signs in Common Areas and Lots owned by Declarant and/or any Builder, as they deem
necessary.
Section 6.9. Animals. No domesticated or wild animal shall be kept or maintained on
any Lot, except that no more than three (3) common household pets such as dogs and cats may
be kept 01· 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.
Excessive harking of dog(s) or vicious animals shall constitute a nuisance and may be ordered
removed from the Property by the Association. Pets will not be pennitted outside of a Dwelling
Unit unless on a leash, and any Owner walking a pet within the Community or on any Common
Area or Limited Common Area will immediately clean up any solid animal waste and properly
dispose of the same. Failure to remove any solid animal waste shall subject the owner to
reimbursement of the Association's costs to remove the solid animal waste. Law enforcement
and animal control personnel shall have the right to enter the Property to enforce local animal
control ordinances.
Section 6.10. T rash Storage. Trash shall be collected and stored in sealed trash
receptacles approved by the Architectural Review Board only and not solely in plastic garbage
bags. Trash and garbage receptacles shall not be pennitted to remain in public view and shall
remain inside of each Owner's garage except on days of trash collection, and except for those
receptacles designed for trash accumulation located in the Common Area or Limited Co1mnon
Area. No accumulation or storage of litter, new or used building mate1ials, or trash of any kind
shall be pennitted on the exterior of any Dwelling Unit. No rubbish, garbage or other waste shall
he allowed to accumulate on any Lot, Common Area, or Limited Common Area. No
homeowner or occupant of a Lot shall bum or bury any garbage or refuse on any Lot or Common
Area, or Limited Common Area.
Section 6.11. Antennae S yst ems. To the extent not inconsistent with federal and state
Jaw, exterior television and other antennae, including satellite dishes, are prohibited, unless
approved in wtiting 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. To the
extent not inconsistent with federal law, satellite dishes will not exceed eighteen (18) inches in
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diameter. It is the inlent 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 Jaw,
such rules as do not conflict with federal Jaw shall remain in full force and effect.
Section 6.12. Finished Exteriors . The exteriors of all Structures, including, without
limitation, walls, doors, windows and roofs, shall be kept in good maintenance and repair by the
Owners of Dwelling Units within that Structure, except to the extent maintenance is provided by
the Association as set forth in Article Vlll. No Structure shall be pe1mitted to stand with its
exterior in an unfinished condition for longer than six (6) months after the commencement of
construction. ln the event of fire, windstonn or other damage, the exterior of a Structure shall
not be permitted to remain in a damaged condition for longer than three (3) months, unless
expressly excepted by the Board of Directors in writing. If the Boal'd of Directors determines
that any Stmcture or Dwelling Unit is not in comp! iance with the provisions of this Section 6. 12,
the Association shall send written notice to the Owner of that Structure or Dwelling Unit
identifying, with reasonable specificity, the items in need of repair or maintenance (a "Repair
Notice"). If an Owner fails to comply with the provisions of this Section 6. 12 after its receipt of
such a Repair Notice, the Association shall be entitled to enforce the provisions of this
Section 6.12 in the manner contemplated under Section 13 .1 m, below, and in any other manner
permitted hereunder or by applicable Jaw.
Section 6.13. Fences. No fence or similar enclosure shall be erected or built on the
Property except for a ny fencing required to be constructed by Declarant in connection with the
development of the Property and the Community.
Section 6 .14. Vehicles. No inoperable, junk, unregistered or unlicensed vehicle shall be
kept on the Property. No portion of the Propc1ty shall be used for the repair of a vehicle.
Section 6.15. Commercial Vehicles. Except upon the ptior written approval of the
Architectural Review Board, no commercial or industrial vehicle, including, but not limited to,
moving vans, trucks, tractors, trailers, vans, wreckers, tow trucks, hearses and buses, shall be
parked overnight or regularly or habitually parked on the Property, nor shall any such vehicle be
located on the Property for longer than twenty-four (24) hours.
Sec tion 6 .16 . Recreational Vehicles. No recreational vehicles or equipment, including,
but not limited to, boats, boating equipment, jet-skis, wave runners, travel trailers, fuel tanks,
camping vehicles or camping equipment, shall be parked on the Property without the prior,
written approval of the Architectural Review Board, as to location, si.ze, screening and other
criteria deemed to be relevant by the Architectura l Review Board. The Association shall not be
required to provide a storage area for these vehicles.
Section 6.17. Towing. The Board of D irectors shall have the right to tow any vehicle
parked or kept in violation of the covenants contained within this Article V J, upon twelve (12)
hours' written, telephonic or verbal notice to the Owner of the Lot on which such vehicle is
located and such Owner's failure to remove, or cause to be removed, any such vehicle within
such twelve ( 12) hour time-frame, at the vehicle owner's sole expense.
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Section 6. l 8. Gara ge Usage. Any conversion of any garage that will preclude the
parking of vehicles within that garage is prohibited. Owners shall keep and maintain their
garages at all times in a manner that will permit the usage of such garage for parking of
pa ssenger automobiles, vans and/or trncks.
Section 6.19. Leasing.
(a) Genera l Purposes of Renta l Ban. The Association's members recognize
that an owner-occupant is both psychologically and financially invested in a Dwelling
Unit to a greater extent than a renter, and thus, owner-occupants maintain thei r properti es
better than renters generally. The Association's Members wish to insure that the residents
within the Community share the same proprietary interest in and respect of the Lots, the
Common Areas and the Limited Common Areas. They also want to encourage residents
to not only maintain property values but also to improve them and recognize that owner
occupants have more incentive to do so compared to non-owner occupants. Thus, the
provisions of this Section 6.19 shall be applicable.
(b) Rental Ban. No Lots may be leased or rented to non-owner occupants at
any given time, except a~ may be otheiwise provided in this Section 6. 19. In order to
satisfy the requirements of this Section 6 .19, an Owner must correspondingly reside in
his or her Dwelling Unit.
(c) Hardship Exceptions and Waiver. Notwithstanding Section 6. L9{b) above,
if an Owner wishes to rent or lease his or her Lot, the Owner may request the Board o f
Directors to waive the "rental han" and approve a proposed lease if the Owner establishes
to the Board's satisfaction that the "rental ban" will cause undue hardship. If a majority
of the entire Board of Directors approves in writing of the Owner's request, the Board of
Directors shall pennit the Owner to rent or lease said Lot, subject to any further
conditions or limitations imposed by the Board in the Board's discretio n, but only if the
Owner satisfies all o ther requirements of this Section 6.19. Such deci~ion shall be at the
sole discretion of the Board. Examples of an undue hardship include:
l\ 11633455.4
(i) death, disso lution or liquidation of an Owner;
(ii) divorce or marriage of an Owner;
(iii) necessary relocation of the residence of an Owner to a po int
outside of a fifty (50) mile radius of the perimeter of the Comm unity due to a
change of employment or retirement of at least one (1) of such Owners;
(iv) necessary relocation of the residence of an Owner due to mental or
physic al infinnity or disability of at least one ( l) of such Owners;
( v) difti.cu lt local real estate market conditions; and
(vi) other similar circumstances.
(d) General Lease Conditions.
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(i) All pennitted leases, including renewals, shall be in writing, and
no lease shall be entered into for a tenn of less than one (I) year without the prior
written approval of the Board of Directors.
(ii) A copy of each executed lease by an Owner that identifies the
tenant (but may have the rental amount deleted) shall be provided to the Board of
Directors or the Managing Agent by the Owner within thirty (30) days after
execution.
(iii) No portion of any Lot other than the entire Lot shall be leased for
any period.
(iv) No subleasing shall be permitted.
(v) All leases shall be made expressly subject and subordinate in all
respects to the terms of the Declaration, By-Laws, Articles, and any rules and
regulations promulgated by the Board of Directors, as amended, to the same
extent as if the tenant were an Owner and a Member of the Association;
(vi) All leases shall provide for direct action by the Association and/or
any Owner against the tenant with or without joinder of the Owner of such Lot. If
such provision is not in the lease, it will be deemed to be in such lease.
(vii) The Owner shall supply copies of such legal documents to the
tenants prior to the effective date of the lease.
(viii) The Owner cannot be delinquent in the payment of any
assessments or other charges to the Association. If at any time an Owner
becomes delinquent, the Board shall have the right to revoke said Owner's right to
lease the Owner's Lot, even if during the tenn of a lease.
(ix) The Board of Directors shall have the power to promulgate such
additional rules and regulations as, in its discretion, may be necessary or
appropriate concerning leasing.
(x) All Owners who do not reside in the home shall provide the Board
of Directors with the name of the tenant(s) and any other residents living in the
home.
(e) Owner is Sti ll Liable. No lease shall provide, or be interpreted or
constrned to provide, for a release of the Owner from his or her responsibility to the
Association and the other Owners for compliance with the provisions of the Declaration,
the Articles of Incorporation, the By-Laws, and any rules and regulations promulgated by
the Board of Directors, or from the Owner's liability to the Association for payments of
assessments or any other charges.
(t) Violations. Any lease or attempted lease of a Lot in violation of the
provisions of this Section 6. 19 shall be voidable at the election of the Association's Board
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11/16/20
of Directors or any other Owner, except that neither party to such lease may assert this
provision of this Section 6.19 to avoid its obligations thereunder. In the event of a
violation, the Board of Directors, on behalf of the Association, or any Owner, shall have
the right to exercise any and all available remedies at law or equity.
(g) Institutional Mo1tgagees. The provisions of this Section 6. 19 shall not
apply to any institutional mortgagee of any Lot which comes into possession of the Lot
by reason of any remedies provided by law or in equity or in such mortgage or as a result
of a foreclosure sale or other judicial sale or as a result of any proceeding, arrangement,
or deed in lieu of foreclosure. However, when a Lot is sold or conveyed by such an
institutional mortgagee to a subsequent purchaser, that subsequent purchaser shall he
bound by the provisions of this Section 6. l 9 .
(h) Burden of Proof. Anything to the contrary herein notwithstanding, if at
any time a Lot is not occupied by one of the Owners thereof, there shall be a presumption
that the Lot is being leased and subject to the provisions of this Section 6 . l 9, and the
Owners shall have the burden of proving to the satisfaction of the Board of Directors that
the occupancy is not in violation of the terms of this Section 6.19, including but not
limited to the delivery to the Board of directors of a written statement of the nature and
circumstances of the occupancy and any written document or memorandum that is the
legal basis for the occupancy. For purposes of this Section 6.19 and this Section 6. l 9(h),
any occupancy (including occupancy pursuant to a rent-to-buy contract or similar
arrangement or pursuant to any option to purchase) by anyone other than an Owner shall
be deemed to be a lease, rental or other similar arrangement.
(i) Declarant and Builder Exempt from Rental Ban. The Declarant
and Builder are explicitly exempted from the rental ban provisions of this Section
6. l 9 and may rent or lease any Lots owned by the Declarant and Builder at any
time, even after the expiration of the Development Period.
Section 6.20. Initial Construction and Marketing. Declarant or its assigns may,
dming its constrnction and/or sales period, erect, maintain and operate real estate sales and
construction offices, model homes, displays, signs and special lighting on any part of the
Property and on or in any building or Structure now or hereafter erected thereon and shall not be
bound by the provisions of this Article to the extent application thereof would delay, hinder or
increase the cost of construction and/or marketing of Dwelling Units for sale in the Community
by Declarant.
Section 6.21. Dusk to Dawn L ights. Each Owner shall maintain any and all lights
installed as a pa1t 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 oflight bulbs so
that those coach lights remain continuously operational from dusk to dawn.
Section 6.22. Garages and Driveways. Garage doors shall remain closed ex.cept when
entering and exiting or otherwise accessing the garage.
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Section 6.23. Stor age Facilities. No permanent, temporary or portable storage facilities
shall be pennitted on any Lot, except for portable storage facilities that are located wholly within
the Owner's garage area and are removed within twenty-four (24) hours. No portable storage
facility is pe1mittcd in any driveway, Conunon Area, Limited Common Area or public right-of-
way.
Section 6.24. Awnings. Except with respect to Lots upon which Declarant maintains a
sales office or model home, or as otherwise approved by the Architectural Review Board, no
metal, wood, fabric, fiberglass or similar type material awnings or patio covers will be pennitted
anywhere on the Property.
Section 6.25. Docks. No Owner shall construct a dock providing access to any of the
Lakes; notwithstanding the foregoing, however, the Owners of Lots 85-9 l, 93-100 and I 09 shall
be permitted to constrnct a dock providing its Lot direct access to the Lakes upon approval of the
Architectural Review Board pursuant to Article VCT of this Declaration, and the Owners of Lots
92 and l 01-108 shall be pennitted to construct a dock to access the Lakes in an area of Limited
Common Area acceptable to the Architectural Review Board, upon approval of the Architectural
Review Board pursuant to Atticle VTI of this Declaration.
Section 6.26. Address Markers. Oeclarant shall install unifonn address markers on
each Lot and no P~rson, t::xcept the Association, shall remove, alter, change, or add to such
address markers.
Section 6.27. Pools. No above ground pools shall be pennitted on any Lot. In ground
pools shall be permitted upon the prior written approval of the Architectural Review Board. In
ground pools shall either be surrounded by a security fence or include a mechanized pool cover
that will cause the pool to be completely covered upon activation by a switch.
Section 6.28. Play Eq uipment. No children's play equipment such as playhouses,
sandboxes, swing and slide sets, and trampolines, shall be pennitted on any Lot without the prior
written approval of the Architectural Review Board, which approval shall include the location of
the play equipment on the Lot.
Section 6.29. Ba&ketball Goals. No basketball goals, hoops, or backboards shall be
pennitted on any Lot without the prior written approval of the Architectural Review Board,
which approval shall include the location of the basketball goal, hoop and backboard.
Section 6.30. Business Use. No garage sale, moving sale, rummage sale or similar
activity and no trade or business may be conducted in or from any Lot, except that an Owner or
occupant resident on a Lot may conduct business activities within a Dwelling Unit so long as:
(a) the existence or operation of the business activity is not apparent or detectable by sight, sound
or smell from outside the Dwelling Unit; (b) no sign or display is erected that would indicate
from the exterior that the Dwelling Unit is being utilized in part for any purpose other than that
of a residence; (c} no commodity is sold upon the premises; (d) no person is employed other than
a member of the immediate family residing in the Dwelling Unit; {e) no manufacture or
assembly optrrations are conducted; (f) the business activity conforms to all zoning requirements
for the Property; (g) the business activity does not involve persons coming onto the Property
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who do not reside in the Prope11y or door-to-door solicitation of residents of the Prope1ty; and
(h) the business activity is consistent with the residential character of the Property and does not
constitute a nuisance, or a hazardous or offensive use, or threaten the security or safety of other
residents of the .Property, as may be detennined in the sole discretion of the Board of Directors.
The terms "business" and "trade'', as used in this provision, shall be construed to have their
ordinary, generally accepted meanings, and shall include, without limitation, any occupation,
work or activity unde1taken on an ongoing basis which involves the provision of goods or
services to persons other than the provider's family and for which the provider receives a fee,
compensation, or other form of consideration, regardless of whether: (i) such activity is engaged
in full or parMime; (ii) such activity is intended to or does generate a protit; or (iii) a license is
required therefor. Notwithstanding the above, the leasing of a Lot or Dwelling Unit shall not be
considered a trade or business within the meaning of this Section 6.30. This Section 6.30 shall
not apply to any activity conducted by Declarant or its affiliates or a builder approved by
Declarant with respect to their development and sale of the Property or their use of any Dwelling
Units which Declarant or such builder owns within the Property for such activities.
Section 6.31. Landscaping of Common Areas and Limited Common Areas. No
Owner shall be allowed to plant trees, landscape or do any gardening in any of the Common
Areas or the Limited Common Areas, except with prior, express written pennission from the
Board of Directors. All landscaping shall comply with the tenns and conditions of this
Declaration.
Section 6.32. Declarant1s Use. Notwithstanding anything to the contrary containe<l
herein or in the Articles or By-Laws, Declarant shall have, until the Authority Transfer Date, the
right to use and maintain any Lots and Dwetling Units owned by Declarant and other portions of
the Property (other than individual Dwelling Units and Lots owned by Persons other than
Declarant), as Declarant may deem advisable or necessary in its sole discretion to aid in the sale
of Lots and the construction of Dwelling Units~ or for the conducting of any business or activity
attendant thereto, or for the construction and maintenance of Conunon Areas or Limited
Conunon Areas, including, but not limited to, model Dwelling Units, storage areas, constmction
yards, signs, constrnction offices, sales offices, management offices and business offices.
Declarant shall have the right to relocate any or all of the same from time to time as it desires.
At nu time shall any of such facilities su used or maintained by Declarant be or become part of
the Common Areas or Limited Common Areas, unless so designated by Declarant, and Declarant
shall have the right to remove the same from the Property at any time.
Section 6.33. Non-applica bilitv to Association. Notwithstanding anything to the
contrary contained herein, the covenants and restrictions set forth in this Article VI shall not
apply to or be binding upon the Association in its ownership, management, administration,
operation. maintenance, repair, replacement and upkeep of the Common Areas to the extent the
application thereof coul<l or might hinder, delay or otherwise adversely affect the Association in
the performance of its duties, obligations and responsibilities as to the Corrunon Areas.
Section 6.34. Additional Rules and Regulations. The Association shall have the
authority to adopt such rules and regulations regarding this A1ticle Y l as it may from time to
time consider necessary or appropriate.
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ARTICLE VU.
ARCHITECTURAL REVIEW BOARD
Section 7. l. The Architectural Review Board. As used herein, the term
"Architectural Review Board" will mean and refer to a group of individuals who will
administer tbe duties described in Section 7.4 below. During the Development Period, the
Architectural Review Board shall consist solely of Declarant. Upon the expiration of the
Development Period, the number of members of the Architectural Review Board shalt
automatically be increased to equal the number of members on the Board of Directors, and the
individuals who are members of the Board of Directors shall automatically be deemed to be the
members of the Architectural Review Board, without the necessity for further action. The tenn
of membership for each member of the Architectural Review Board will be cotenninous with the
tenn of such individual's membership on the Board of Directors.
Section 7.2. Removal and Vacancies. After the expiration of the Development
Period, a member of the Architectural Review Board may only be removed in the event such
member is removed from or otherwise ceases to be a member of the Board of Directors.
Appointments to fill vacancies in unexpired tenns on the Architectural Review Board shall be
made in the same manner as members are appointed or elected to the Board of Directors.
Section 7.3. Officers. At the first meeting of the Architectural Review Board (after the
expiration of the Development Period) following each annual meeting of Members, the
Architectural Review Board shall elect from among themselves a chairperson, a vice-chairperson
and a secretary who shall perform the usual duties of their respective offices.
Section 7.4. Duties. The Architectural Review Board shall regulate the external design
and appearance of the Property and the external design, appearance and location of the
improvements thereon in such a manner so as to preserve and enhance property values and to
maintain harmonious relationships among Strnctures and the natural vegetation and topography
in the Community. During the Development Period, the Architectural Review Board shall
regulate all initial construction, development and improvements on the Prope1ty and all
modifications and changes to existing improvements on the Property. In furtherance thereof, the
Architectural Review Board shall:
(a) review and approve or disapprove written applications of Owners for
proposed alterations or additions to Lots;
(b) periodically inspect the Property for compliance with adopted, written
architectural standards and approved plans for alteration;
(c) adopt and publish architectural standards subject to the confinnation of the
Board of Directors;
(d) adopt procedures for the exercise of its duties; and
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(e) maintain complele an<l accurate records of all actions taken by the
Architectural Review Board.
No request for approval by the Architectural Review Board ur any committee thereof will
be reviewed or otherwise considered unless submitted in writing by the Owner requesting
such approvaJ. Approval by the Architectural Review Board of a correctly filed
application shall not be deemed to be an approval by Local Governing Authorities, nor a
waiver of the Association's right to require an applicant to obtain any required approvals
from any such Local Governing Authorities or to otherwise comply with applicable laws,
rules, regulations and local ordinances. No approval by the Architectural Review Board
or any committee thereof shall be effective unless in writing and signed by all of the
members of the Architectural Review Board or the applicable committee whose approval
is required hereunder.
Section 7.5. Failure to Act. Failure of the Architectural Review Board, any
committee thereof or the Board of Directors to respond to any request for approval, enforce the
architectural standards contained in this Declaration or to notify an Owner uf noncompliance
with architectural standards or approved plans for any period of time shall not constitute a waiver
by the Architectural Review Board, any committee thereof or the Board of Directors of any
provision of this Declaration requiring such approval hereunder or otherwise prevent the
Architectural Review Board, any committee thereof or the Board of Directors from enforcing
this Declaration at any later date. If approval has not been issued in writing within thirty (30)
days after submission of an application to the Board of Directors, the Architectural Review
Board, then any such request shall be deemed to be denied.
Section 7.6. Discretion. Declarant intends that the members of the Architectural
Review Board, and all committees thereof, exercise discretion in the performance of their duties,
and every Owner by the purchase of a Lot shall be condusively presumed to have com;ented to
the exercise of discretion by the members of the Architectural Review Board and such
committees.
Section 7.7. Enforcement. Any exterior addition, change or alteration made without a
written application to, and prior wtitten approval of, the Architectural Review Board, shall be
deemed to he in violation of this Declaration and the Board of Directors shall have the right to
require such exterior to be immediately rest~red to its original condition at the oftending Owner's
sole cost and expense.
Section 7.8. Appeal. Any aggrieved party may appeal a decision of the Architectural
Review Board to the Board of Directors by giving written notice of such appeal to the
Association or any member of the Board of Directors within twenty (20) days of the adverse
ruling.
Section 7.9. Liabilitv of the Architectural Review Board, Declarant, Association.
Neither the Architectural Review Board, nor any committee nor any agent thereof, nor Declarant,
nor the Association, shall be liable in any way for any costs, fees, damages, delays, or any
charges or liability whatsoever relating to the approval or disapproval of any plans submitted to
it, nor shall the Architectural Review Board nor any committee thereof: nor any agent thereof,
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nor Declarant, nor the /\ssociation, be responsible in any way for any detects in any plans,
specifications or other materials submitted to any of them, or for any defects in any work done
according thereto. Further, the Architectural Review Board, its committees, Declarant, and the
Association make no representations or wananties as to the suitability or advisability of the
design, engineering, method of construction involved, or materials to be used. Each Owner
should seek professional constmction advice, engineering, and inspections with respect to such
Owner's Lot and/or Dwelling Unit, at such Owner's sole cost and expense, prior to proposing
plans for approval by the Architectural Review Board, its committees or the Board of Directors.
Section 7.10. Inspection. The Architectural Review Board and Declarant may, but shall
not be obligated to, inspect work being perfontled on a Lot or Dwelling Unit to ensure
compliance with the Restrictions, the restrictions contained in any plat of the Property and
applicable regulations. However, neither the Architectural Review Board, nor any committee
nor member thereof, nor Declarant, nor any agent or contractor employed or engaged by any of
the foregoing, shall be liable or responsible for defects or deficiencies in any work inspected or
approved by any of them, or on behalf of any of them. Fmther, no such inspection perfonned or
approval given by or on behalf of the Architectural Review Board, any committee thereof or
Declarant shall constitute a warranty or guaranty of the work so inspected or approved.
ARTICLE Vlll.
MAINTENANCE, REPAIRS AND REPLACEMENTS
Section 8.1. By Owners. Except as specifically provided in this Declaration, each
Owner shall furnish and be responsible for the maintenance of all portions of his Lot. All
fixtures and equipment installed within or as part of the Dwelling Unit, commencing at the points
where the utility lines, pipes, wires, conduits or systems enter the Lot upon which said Dwelling
Unit is located, shall be maintained and kept in repair by the Owner thereof. Each Owner shall
promptly perform all maintenance and repair of his/her Lot and Dwelling Unit which, if
neglected, might adversely affect any other Lot or Dwelling Unit or any part of the Common
Area owned by the Association. Such maintenance and repairs include, but are not limited to,
windows, doors, internal water lines, plumbing, electric lines, gas lines, appliances, and all other
fixtures, equipment and accessories belonging to the Owner and a part of or appurtenant to
his/her Dwelling Unit or Lot.
Section 8.2. Common Areas and Lot Maintenance by the Association.
l\l 16.H455.4
(a) The Association, as part of its duties, shall provide for:
(i) Maintenance of the Common Area and the Limited Common Area,
which shall include, but shall not be limited to, irrigating, spraying, trimming,
protecting, planting, fertilizing~ replacing and pruning trees, shrubs and other
landscaping located within the Common Areas and the Limited Common Areas,
maintenance and upkeep of the Common Area and the Limited Common Area
and to pick up and remove from the Co1mno11 Area and the Limited Common
Area all loose material, rubbish, filth and accumulation of debris; and to <lo any
other thing necessary or desirable in the judgment of the Association to keep the
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Common Area and the Limited Common Area in neat appearance and in good
order;
(ii) Maintenance of the entry signs, permanent subdivision
identification signs, and landscaping installed by the Declarant in any Common
Area, Limited Common Area or any easement;
(iii) The maintenance of any street lights that are installed by Declnrant
and that are not located upon any Lot or maintained by a utility or governmental
entity; and
(iv) The maintenance of all private streets, driveways, sidewalks, and
any btick surface installed by Declarant on any internal street or entryway.
(b) The Board of Directors may adopt such other rules and regulations
concerning maintenance, repair, use and enjoyment of the Common Area owned by the
Association (or any items deemed Common Area for purposes of maintenance only) as it
deems necessary.
(c) The Association, as part of its duties, and as part of the Common Expenses
for Maintenance Benefit Lots, shall provide the following maintenance services to the
Owners of Maintenance Benefit Lots (and the costs of such maintenance services shall be
included in such Owners' Regular Assessments):
(i) Lawn Care. The Association shall be responsible to mow and trim
lawn areas on each Maintenance Benefit Lot; provided, however, that the
Association shall not be responsible for any sowing, re-seeding, re-sodding,
irrigating or fertilizing of such lawn ureas and provided, further, that the
Association shall not be required to maintain or replace any irrigation/sprinkler
system on such Maintenance Benefit Lot or maintain, replace, irrigate, or fertilize
any flowers, plants, trees, shrubs, or any landscaping other than grass located on
each Maintenance Benefit Lot;
(ii) Snow Removal. For snows 2" or greater, the Association will
remove snow from the driveways and sidewalks leading from the driveway on a
Lot to the front door and garage door of the residence on such Maintenance
Benefit Lot
(iii) Conversion of Lots into Maintenance Benefit Lots. Ptior to the
sale of any Lot by Declarant that has not been designated previously by Declarant
as a Maintenance Benefit Lot, Declarant shall have the right to convert such Lot
into a Maintenance Benefit Lot by recording an amendment to this Declaration.
(d) Notwithstanding any obligation or duty of the Association to repair or
maintain any of the Common Area or Limited Common Area owned by the Association
{or those portions of the Maintenance Benefit Lots as provided in subparagraph (c)
above}, it~ due to the willful, intentional or negligent acts or omissions of an Owner or a
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member of his family or of a guest, tenant, invitee or other occupant or visitor of such
Owner, damage shall be caused to the Common Area or the Lim ited Common Area
owned by the Association (or those portions of the Maintenance Benefit Lots as provided
in subparagraph (c) above}, or if maintenance, repairs or replacements shall be required
thereby which wou ld otherwise be a Common Expense, then such Owner shall pay for
such damage and such maintenance, repairs and replacements, as may be detennined by
the Association, unless such loss is covered by the Association's insurance with such
policy having a waiver of subrogation clause. If not paid by such Owner upon demand
by the Association, the cost of repairing such damage shall be added to and become a part
of the assessment to which the Owner's Lot is subject.
(e) The authorized representatives of the Association, the Board of Directors
and the Managing Agent for the Association (if any) are hereby granted an easement for
acces8 upon and to any Lot as may be required in connection with maintenance only,
repairs or replacements of or to the Common Area owned hy the Association or those
portions of the Lots as provided in subparagraph (b) above, including, but not limited to,
access to any easements reserved by any Plat of any portion of the Property for such
purposes.
ARTICLE IX.
INSURANCE
Section 9.1. Liability In sura nce. The Association shall purcha se a master conunercial
general liability insurance policy in such amount ur amo unts as the Board of Directors shall
deem appropiiate from time to time. Such comprehensive general liability insurance policy shall
cover the Association, its Board of Directors, any committee or organization of the Association
or Board of Directors, all persons acting or who may come to act as agents, or employees of any
of the foregoing with respect to the Association. It shall also cover all Common Arca and
Limited Common Area owned by the Association, public ways and any other areas under the
Association's control or supervision. The premiums for 1:1.U such liability policies shall be a
Common Expense.
Section 9.2. Casu a lty Insurance and Restoration.
(a) The Association shall purchase a casualty insurance policy with an
"agreed amount and inflation guard endorsement" ur its equivalent affording first and
extended coverage insuring all Common Areas and Limited Common Areas owned by
the Association in an amount equal to the full replacement value of the improvements.
The Board of Directors shall be responsible for reviewing at least annually the amount
and type of such insurance and shall purchase such additional insurance as is necessary to
provide the insurance required above.
(b) The sole duty of the Board in connection with any insurance proceeds
shall be to receive such proceeds as are paid and to hold the same for the purposes
elsewhere stated herein, for the benefit of the Owners. The proceeds shall be used or
disbursed hy the Association or the Board, as appropriate, only in accordance with the
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provisions of this Declaration. Such casualty insurance policies and "all risk" coverages,
except flood and earthquake coverages, if obtained, shall (to the extent that same are
obtainable) contain provisions that the insurer (a) waives its right to subrogation as to any
claim against the Association, the Board of Directors, its agents and employees, the
Owners, their respective agents and guests, and (b) waives any defense based on the
invalidity arising from the acts of the insured, and further providing to the extent
obtainable upon reasonable te1ms (i) that the insurer shall not be entitled contribution
against casuaJty insurance which may be purchased by individual Owners, and (ii) that
notwithstanding any provision thereof giving the insurer an election to restore damage in
lieu of a cash settlement, such option shall not be exercisable in the event the
Association does not elect to restore.
Section 9.3. F idelity Bonds. The Association shall have blanket fidelity bonds for
anyone who either handles or is responsible for funds held or administered by the Association,
whether or not they receive compensation for their services. The Association bonds shall name
the Association as the obligee and the premium shall be paid as a Common Expense by the
Association. Any management agent that handles funds for the Association shall be covered by
its own fidelity bond, which must provide the same coverage required of the Association. The
Association shall be named as an additional obligee in the management agent's bond. 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 force. In addition, the fidelity bond coverage
must at least equal one (1) years' assessments on all Dwelling Units in the Property, plus the
Association's reserve funds. If available, the fidelity bonds must include a provis.ion that calls
for ten (I 0) days' written notice to the Association or insurance trustee hefore the bond can be
cancelled or substantially modified for any reason.
Section 9.4. MisceUaneous Insurance Provisions. The Association shall obtain any
other insurance required by law to be maintained, including but not limited to worker's
compensation insurance, and such other insurance as the Board of Directors shall from time to
time deem necessary, advisable or appropriate. Such insurance coverage shall also provide for
and cover cross liability claims of one insured party against another insured party. Such
insurance shall inure to the benefit of the Association, its Board of Directors and any
management agent acting on behalf of the Association. The premiums for all su(;h insuranc~
coverage shall be a Conunon Expense.
Section 9.5. lnsufficicncv of Insurance Proceed s. ff the insurance proceeds received
by the Association as a result of any such fire or any other casualty or disaster are not adequate
to cover the cost of repair and reconstruction, or in the event there are no insurance proceeds, the
cost for restming the damage and repairing and reconstructing the Common Area actually owned
by the Association or any improvements damaged or destroyed (or the costs thereof in excess of
insurance proceeds received, if any) shall be paid by the Association which shall then have the
right to levy a Special Assessment against all Lots for such deficiency.
Section 9.6. Surplus of lnsurance Proceeds. ln the event that there is any surplus of
insurance proceeds after the reconstruction or repair of the damage has heen fully completed and
all costs paid, such sum::; may be retained by the Association as a reserve or may be used in the
maintenance and operation of the Property. The action of the Board of Directors in proceeding
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to repair or reconstruct damage shall not constitute a waiver of any right against any Owner for
committing willful or malicious damage.
Section 9.7. Insurance by Owner. Each Owner shall b~ solely responsible for and
may obtain such insurance as he deems necessary or desirable, at his own expense, affording
coverage for additional living expenses, coverage on his Structure and his personal property, the
contents of his Dwelling Unit, his personal property stored anywhere on the Property, and for his
personal liability, but all such insurance shall contain the same provisions for waiver of
subrogation as refen-ed to in the foregoing provisions for the master casualty insurance policy to
be obtained by the Association.
ARTICLEX.
EASEMENTS
Section l 0.1. General Easement Rights. Declarant hereby grants a non-exclusive
blanket easement over, across, through and under the Property 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 and all other emergency personnel and government, to enter upon
the Property, in the exercise of the functions provided for by this Declaration, the Articles, the
By-Laws and rules and regulations of the Association, and in the event of emergencies or in the
perfonnance of govenunental functions. Declarant fttrther grants a non-exclusive blanket
easement over, across, tluough and under the Property to utility service providers for ingress,
egress, installation, replacement, repair and maintenance of underground utility and service lines
and systems, including, but not limited to, water, sewer, gas, telephones, electricity, television,
cable or communication lines and systems. By virtue of this easement it shall be expressly
permissible for Declarant or the utility service provider to install, maintain and repair facilities
and equipment on the Property if such utility service provider promptly restores the disturbed
area, if any, as nearly as is practicable to the condition in which it was found, provided, however,
that no sewers, electrical lines, water lines, or other utility service lines or facilities for such
utilities may be installed or relocated except as proposed and approved by Declarant in advance
in writing. Should any utility providing a service to the Property request a specific easement by
separate recordable document, Declarant or the Association shall have the right to grant such
easement with respect to the Property without conflicting with the tenns hereof. This blanket
easement shall in no way affect any other recorded easements on the Prope11y, shall be limited to
improvements as originally constructed, and shall not cover any po1tion of a I .ot upon which a
Dwelling Unit has been constructed.
Section I 0.2. Limitation on General E asement Rights. The rights accompanying the
easements provided for in Section l O. l of this Article X shall, except in the event of an
emergency, be exercised only during reasonable daylight hours and then, whenever practicable,
only after advance notice to any Owner or tenant directly affected.
Section I 0.3. Plat Easements. The easement shown on the Plats recorded on the
Property are hereby incorporated by reference into this Declaration as if they were restated
herein in the entirety.
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All easements described in this Section 10.3 shail include the right of ingress and egress
for the exercise of the respective rights granted. No structure, including fences, shall be built on
any drainage, sewer or utility casement if such structure would (i) materially interfere with the
utilization of such easement for the purpose intended, (ii) violate any applicable leg.al
requirement, or (iii) violate the terms and conditions of any easement specifically granted to a
Person who is not an Owner by an instrument recorded in the Recorder's Office, except that
neither paved drives necessary to provide access to a Lot from a public street nor sidewalks
installed by or at the direction of Declarant (and replacements thereof) shall be deemed to be a
"structure" for the purpose of the foregoing restriction.
Section 10.4. E n croac hm ents. If any improvement on a Lot or the Common Area now
or hereafter encroaches on any other Lot or Common Area, by reason of (a) the original
construction thereof by Declarant or its assigns, which shall include, but not be limited to, any
drive which encroaches over a Lot's boundary line, (b) deviations within nonnal 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 over the
encroached-upon portion of such Lot or Common Area in favor of the Owner of the encroaching
improvements, so lely to the extent of such encroaclunent and solely for the period of time the
encroachment exists (including replac~ments thereof), for the limited purposes of use, repair,
replacement and maintenance of the encroaching improvement.
Section 10.5. Ingress/Egress Easement. Declarant, its agents and employees, shall
have a right of ingress and egress over the Common Area and the Limited Common Area, and
any roadways and d1ives within the ConununHy as required for construction of improvements
and development of the Propei1y, and otbe1wise as Declara.nt deems to be necessary or for
access, ingress and egress to and from any Dwelling Unit.
Section 10.6. Reservation of Right to Gra nt Future Easem ents. Declarant reserves
the right to (a) grant non-exclusive easements over any Lot, Common Area or Limited Comm.on
Are·a for the purposes of (i) 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, teleconununication lines and cables, and
the like, and (ii) obtaining the release of any bonds posted with a municipality, govenunental
agency or regulatory agency, (b) grant non-exclusive easements over the Common Area or the
Limited Common Area to any municipal agency or private entity for any other purpose
consistent with the "open space" designation thereof, and (c) in its sole discretion, grant licenses
and non-exclusive casements over, under, across or through the Prope11y in favor of owners of
adjoining real property, and their tenants, successors and assigns, for purposes of providing
access and utilities benefiting such adjoining real property.
Section I 0. 7. Bonds and/or Dedication Requirements. Declarant reserves the right to
grant and reserve easements or to vacate or tenninate easements across alJ Lots or Common Area
as may be required by any governmental agency or authority or utility in cormection with the
release of improvement bonds or the dedication of public streets for maintenance by
govemmental agencies.
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Section 10.8. Easements for Corrective Work. Declarant reserves a non-exclusive
easement over, across, under, through and above all Lots and the Common Area for the purposes
of correcting drainage, regrading, maintenance, landscaping, mowing and erecting street
intersection signs, directional signs, temporary promotional signs, entrance features, lights and
wall features, and for the pm-pose of executing any of the powers, rights, or duties granted to or
imposed upon the Association in this Declaration or any Supplemental Declaration.
Section I 0.9. Lake Easements. Notwithstanding anything contained in this Declaration
to the contrary, only Owners of Lots 34-64, 85-109 and 175-184 (collectively, the "Lake
Benefited Parties") shall have an easement to utilize the Lakes for any purpose other than for
narural stonn water drainage purposes. The easement in favor of the Lake Benefited Parties
pursuant to this Section 10.9 shall be limited to the purposes of fishing, swimming, and boating,
provided that no boat or water craft utilized in connection with the Lakes may (i) be greater than
sixteen ( l 6) feet in length, or (ii) have a non-electric motor. A boat or water craft may have an
electric trolling motor and any powered boat or water craft shall not exceed the speed of 5 mph.
Notwithstanding anything to the contrary herein, any Lot owned by Paul Shoopman, his wife, his
children, his children's spouses and their decedents shall be exempt from the restrictions on the
use of the Lakes contained in this Section 10.9.
ARTICLE XI.
PARKJNG
No Owner, tenant, or any other Person shall park any type of vehicle in any Common
Area or Limited Commun Area. Notwithstanding the foregoing, visitors, guests and invitees
shall be permitted to park in those portions of the Common Area and the Limited Common Area
designated by Declarant or the Association as visitor parking areas; provided, however, that such
parking shall be pennitted only on a temporary and intennittent basis and no such parking shall
be permitted in any portion of the Common Area which has not been designated as a visitor
parking area. The Board of Directors may promulgate such additional rules and regulations as it
deems appropriate to regulate the use of any Common Areas or Limited Common Areas for
parking purposes, which ru]es 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.
ARTICLE XII.
INTENTIONALLY OMITTED
ARTICLE Xlll.
POWERS AND DUTIES OF THE ASSOCIATION
Section 13. l. Discretionary Powers and Duties. The Association shall have the
following powers and duties which may be exercised in its discretion:
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(a) to enforce any covenants or restrictions which are imposed by the terms of
this Declaration or which may be imposed on any part of the Propc1ty. Nothing
contained herein shall be deemed to prevent the Owner of any Lot from enforcing any
building rest1iction in its own name. The foregoing rights of enforcement shall not
prevent (i) changes, releases or modifications of the restrictions 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; or (ii) the assignment of the foregoing rights by
the proper parties wherever and whenever such rights of assignment exist. Neither the
Association nor the Board of Directors shall have a di1ty to enforce the covenants by an
action at law or in equity if either party believes such 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; 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 build facilities and Structures upon the Common Area or the Limited
Common Area;
(c) to use the Common Area or the Limited 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, trim, re-sow, re-seed or re-sod lawn areas and fertilize lawn areas
as necessary within the Common Areas and the Limited Common Areas and to operate
and maintain in-ground irrigation/sprinkler systems in the Common Areas and the
Limited Common Areas;
(e) to maintain, irrigate, spray, trim, protect, plant, fertilize, replace and prnne
trees, shrubs and other landscaping located within the Common Areas and the Limited
Common Areas, maintenance and upkeep of the Common Area and the Limited Common
Area and to pick up and remove from the Common Arca and the Limited Common Area
all loose material, rubbish, filth and accumulation of debris; and to do any other thing
necessary or desirahle in the judgment of the Association to keep the Common Area and
the Limited Common Area in neat appearance and in good order, including, but not
limited to, cleaning the private streets and maintaining any street lights located in the
Common Areas and the Limited Corrunon Areas;
(f) to arrange for plowing and/or removal of snow from (i) private streets
located within Common Areas and Limited Common Areas, and (ii) community
walkways located within Common Areas and Limited Common Areas, and (iii)
driveways located upon Maintenance Benefit Lots;
(g) to exercise all rights, responsibilities and control over all easements which
the Association may from time to time acquire;
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(h) to create, grant and convey easements and licenses upon, across, over and
under all Common Areas and Limited Common Areas, including but not limited to
easements for the installation, replacemt:nt, repair and maintenance of utility lines serving
the Property;
(i) subject to the limitations set forth in Secti.o n 13.3 hereof, to
employ counsel and institute and prosecute such suits as the Association may
deem necessary or advisable, and to defend suits brought against the Assodation;
(i) to retain, as an independent contractor or employee, a manager of the
Association and such other employees or independent contractors as the Board of
Directors deems necessary, and to prescribe the duties of employees and scope of
services of independent contractors;
U) to enter upon any Lot to perform emergency repairs or to do other work
reasonably necessary for the proper maintenance or protection of the Property;
(i) to enter (or have the Association's agents or employees or
contractors enter) upon any Lot to repair, maintain or restore the Lot or perfonn
such other acts as may be reasonably necessary to make such Lot and
improvements situated thereon, if any, conform to the requirements of these
Restrictions, 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. Neither
the Association nor any of its agents, employees, or contractors shall be liable for
any damage, which may result from any maintenance work performed hereunder;
(k) to re-subdivide and/or adjust the boundary lines of the Conunon Area and
the Limited Common Area, to the extent such re-subdivision or adjustment does not
contravene the requirements of zoning and other ordinances applicable to the Property;
(I) to adopt, publish and enforce rules and regulations governing the use of
the Common Area and the Limited 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
(m) to arrange for the collection of trash and recyclable items on a weekly
basis from approved locations and from appropriate receptacles in the manner
contemplated in Section 6. 10 above.
Section l3.2. Mandatory Powers and D u ties. The Association shall exercise the
following powers, rights and duties:
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(a) to unconditionally accept title to the Common Area and the Limited
Common Area upon the transfer thereof by Declarant to the Association as provided
hereunder, and to hold and administer the Common Area and the Limited Common Area
for the benefit and enjoyment of the Owners and occupants of Lots or Private Lots, as
applicable, and to cause the Common Area and the Limited 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 or the Limited Common Area to or at
the direction of Declarant, for the purpose of adjusting boundary lines or otherwise in
connection with the orderly subdivision or development of the Property, but only to the
extent such re-subdivision or adjustment does not contravene the requirements of zoning
and other ordinances applicable to the Property;
(c) after the termination of the Class B membership, to obtain and maintain
without intetruption 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 amow1t as may be
determined to be reasonably prudent by the Board of Directors;
(d) to obtain and maintain without interruption commercial general liability
and hazard insurance covering the Common Area and Limited Common Area and
easements of which the Association is a beneficiary, if available at reasonable cost. Such
insurance policy shall contain a severability of interest clause or endorsement which shall
preclude the insurer from denying the claim of an Owner because of negligent acts of the
Association or other Owners. The scope of coverage shall include all coverage in kinds
and amounts commonly obtained with regard to projects similar in construction, location
and use as detennincd by the Board of Directors. Further, the commercial general
liability insurance must provide coverage of at least $1,000,000.00 for bodily injury,
including death, and property damage for any single occurrence;
(e) to provide for the maintenance of any and all (i) improvements, Structures
or facilities which may exist or be erected from time to time on the Common Area and
Limited Common Area, including but not limited to the damns which created and control
the Lakes; (ii) easement areas of which the Association is the heneficiary and for which it
has the maintenance responsibility; and (iii) facilities, including, but not limited to, fences
and signs, authorized by the Association and erected on any easements granted to the
Association;
(f) to pay all proper bills, taxes, charges and fees on a timely basis;
(g) to maintain its corporate non-profit status;
(h) to maintain all private streets, open space and landscaping within the
Common Area and the Limited Common Arca; and
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(i) to be solely responsible for all costs incurred in connection with
the maintenance and repair of the Common Area in accordance with Section
4.3{b) hereof and the Limited Common Area in accordance with Sec tion 4.4(b).
Section 13.3. Limitation on Association Action. The Association shall hold a duly
authorized, duly noticed special meeting of the Members of the Association prior to commencing
or prosecuting any judicial or administrative proceeding, and no judicial or administrative
proceeding shall be commenced or prosecuted by the Association except upon the affinnative
vote of at least seventy-five percent (75%) of the votes cast at said special meeting by Members
entitled to vote authorizing the commencement and prosecution of the proposed action. This
Section 13.3 shall not apply to (a) actions brought by the Association to enforce the provisions of
this Declaration, the By-Laws, or rules and regulations adopted by the Board of Directors
(including, without limitation, any action to recover Regular Assessments or Special
Assessments or other charges or fees or to foreclose a lien for such items) or (b) counterclaims
brought by the Association in connection with proceedings instituted against it.
Section 13.4. Board of Directors Authoritv to Act. Unless otherwise specifically
provided in the Association's documents, all rights, powers, easements, obligations and duties of
the Association may be perfo1med by the Board of Directors. Notwithstanding anything to the
contrary contained herein, any rules or regulations which are promulgated by the Board of
Directors may be repealed or amended by a majority vote of the Members cast, in person or by
proxy, at a meeting convened for such purpose in accordance with the Ry-Laws.
Section 13.5. C ompensation. No director or officer of the Association shall receiv~
compensation for services as such director or officer except to the extent expressly authorized by
a majority vote of the Class A Members.
Section 13.6. Non-liability of Directors, Officers and Board Members. The directors
and officers of the Association and members of the Architectural Review Board, and all
committees thereof, 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, or any committee thereat~ except for
their own individual willful misconduct or gross negligence. lt is intended that the directors and
officers of the Association and members of the Architectural Review Board, and all committees
thereof, shall have no personal liability with respect to any contract made by them in good faith
on behalf of the Association, and the Association shall indemnify and hold harmless each of the
directors, officers, Architectural Review Board members, or committee members against any and
all liability to any person, finn or corporation arising out of contracts made in good faith on
behalf of the Association.
Section 13.7. Indemnity of Directors and Officers and Members of the
Archi tectural R eview Board. Except with respect to matters (i) as to which it is adjudged in
any civil action, suit, or proceeding that such person is liable for gross negligence or willful
misconducl in the perfonnance of his or her duties, or (ii) to which it is adjudged in any criminal
action, suit or proceeding that such person had reasonable cause to bdieve that such person's
conduct was unlawful or that person had no reasonable cause to believe that such person's
conduct was lawful, the Association shall indemnify, hold hannless and defend any person, his
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or her heirs, assigns and legal representatives (collectively, the "lndemnitee") made or
threatened tu be made a party to any action, suit or proceeding, or subject to any claim, by reason
of the fact that he or she is or was a director or officer of the Association or member of the Board
of Directors of the Architectural Review Board, or any committee thereof, from and against
(I) all liability, including, without limitation, the reasonable cost of settlement of, or the amount
of any judgment, fine, or penalty rendered or assessed in any such claim, action, suit, or
proceeding; and (2) all costs and expenses, including attorneys' fees, actually and reasonably
incurred by the lndemnitee in connection with the defense of such claim, action, suit or
proceeding, or in connection with any appeal thereof. In making such findings and
notwithstanding the adjudication in any action, suit or proceeding against an lndemnitce, no
director or officer of the Association, or member of the Board of Directors or the Architectural
Review Board, or any committee thereof, shall be considered or deemed to be guilty of or liable
for gross negligence or willful misconduct in the perfonnance of his or her duties where, acting
in good faith, such director or officer of the Association, or member of the Architectural Review
Board, or any committee thereof, 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, officer or member of the Association, of any accountant, attorney or other person, finn
or corporation employed by the Association to render advice or service, unless such director,
officer or memher had actual knowledge of the falsity or inco1Tectness thereof; nor shall a
director, officer or member 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 Association,
the Board of Directors or the Architectural Review Board, or any committee thereof. The costs
and expenses incurred by an lndemnitee 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 lndemnitee is not entitled to
indemnification or reimbursement as provided in this Ai.tide XUL
Section 13.8. Association Communications. ln the event there is a dispute between an
Owner or an Owner's Lot or Dwelling Unit and the Association, the Board of Directors shall
make all commtmications conceming the dispute available to the Owner of such Lot. If the
Association initiates conununications with an Owner regarding another Owner's Lot or Dwelling
Unit, the Association shall provide a copy of any such communication to the Owner whose Lot
or Dwelling Unit is the subject of the communications. Notwithstanding the foregoing, the
Association shall not be required to make available conununications between the Association
and its legal counsel and other communications or attorney work product prepared in anticipation
of litigation to an Owner. The Association is also not required to make available
communications concerning suspected criminal activity, or activity that is the subject of a law
enforcement investigation, involving the Member whose Lot is the subject of the
communication.
Se<-iion 13.9. Grievance Resolution. In the event the Association or a Member has u
claim arising out of or relating to the interpretation, application or enforcement of this
Declaration, the By· Laws, the Atticles, the rights or duties of the Association Board of Directors,
the maintenance of the Property, or any other claim, grievan(;e or dispute among the parties
involving the Property or the Association, the provisions of Indiana Code §32-25.5-5, as
amended, shall apply, unless such claim is expressly exempt thereunder.
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Section 13.10. Voting by Proxy. In the event a Member entitled to vutt:: elects to vote by
proxy, the proxy used by such Member shall include (a) the name and address of the Member
giving the proxy, (b) the name of the individual empowered to exercise the Member's proxy, (c)
the date on which the proxy is given, (d) the date of the meeting for which the proxy is given, (e)
the Member's signature on the proxy, and (f) an affinnation under the penalties of pe1jury that
the individual signing the proxy has the authority to grant the proxy to the individual name in the
proxy to exercise the Member's proxy. The Board of Directors shall maintain a copy of any such
proxy with the records of the meeting to which the proxy applies. A proxy may state that the
proxy is limited in its use to specific matters described in the proxy. A proxy may also state that
the proxy applies to any continuation of the meeting specified in the proxy; provided, however, if
the proxy states that it expires on a stated date, the stated date shall not be more than one hundred
eight (180) days after the date on which the proxy is given.
Section 13.1 l. Meeting Minutes and Association Records. The Association and the
Board of Directors shall retain for at least two (2) years after receipt any written or electronic
communications received by the Association or Board of Directors that relates to a financial
transaction of the Association that is not otherwise excepted from disclosure under this
Declaration or applicable law. Upon a Member's request, which may be made in person, in
writing or by electronic mail, each such Member shall have the right to review and inspect the
Association's financial records, including all executed contracts, invoices, bills, receipts, bank
records and meeting minutes of the Board of Directors; provided, however, that the Association
shall not be required to make available for such review unexecuted contracts, records regarding
contract negotiations, infonnation regarding another Member's Association account and records
if such person making the request is not a named party on the account, any information that is
prohibited from release under applicable law, or any records that were created more than two (2)
years prior to the date of request. Any written request for any such records shall identify with
reasonable particulatity the information being rt:quested. The Association may charge a
reasonable fo~ for the copying of a record n:quested pursuant to this Declaration if the Member
requests a written copy of the record.
Section 13. l 2. Board of Directors Meetings. A Member of the Association has the right
to attend any meeting of the Association's Board of Directors. The Board of Directors may meet
in a private executive session to discuss delinquent assessments, and with legal counsel to
discuss the initiation of litigation or litigation that is pending or threatened in writing.
ARTICLE XIV.
RIGHTS OF MORTGAGEES
Unless a right is waived by the appropriate Federal Agency, all Mortgagees shall have the
following rights:
Section 14.1. Veterans Administration. To the extent required by the Veteran's
Administration (the "VA"), if any of the Lots arc security for a loan guaranteed by the VA and if
there is a Class B Member:
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(a) Declarant must provide to the VA a copy of all amendments to the
Declaration. The Association may not make any Material Amendment or take any
Extraordinary Action (as such tenns are defined in Article XV) without the approval of
the VA.
(b) Eligible Mortgagees shall have the following rights:
(i) the right to inspect Association documents and records on the same
tenns as the Members;
(ii) notice of any Material Amendment of the Association documents;
(iii) notice of any Extraordinary Action of the Association;
(iv) notice of any property loss, condemnation or eminent domain
proceeding affecting the Common Area resulting in a loss greater than ten percent
(10%) of the annual budget or affecting any Lot insured by the Association in
which the Eligible Mortgagee has an interest;
(v) notice of any tennination, lapse or material modification of an
insurance policy held by the Association;
(vi) notice of any default by an Owner of a Lot subject to a mortgage
held by the Eligible Mortgagee in paying assessments or charges to the
Association which default remains uncured for sixty (60) consecutive days;
(vii) notice of any proposal to tenninate the Declaration or dissolve the
Association at least thirty (30) days before any action is taken;
(viii) the right of a majority of the Eligible M011gagees to demand
professional management; and
(ix) the right of a majority of the Eligible Mortgagees to demand an
audit of the Association's financial records.
Section 14.2. Federal Housing Authority. To the extent required by the Federal
Housing Authority (the "FHA"), if any of the Lots are security for a loan insured by the FHA
and if there is a Class B Member, the following actions will require the prior approval of the
FHA:
(a) annexation of additional properties, except the land described in
Art icle XV below;
(b) mergers, consolidations and dissolution of the Association;
(c) mo11gaging or conveyance of the Common Area or the Limited Common
Area; and
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(d) Material Amendment of this Declaration.
Section 14.3. Freddie Mac. Assuming that Mortgagees may secuntlze pools of
mo11gages, including mortgages on Lots and/or Dwelling Units in the Community, with the
Federal Home Loan Mortgage Corporation (alk/a "Freddie Mac"), the following requirements
shall apply to all Lots and Dwelling Units in the Community:
(a) Unless at least two-thirds (2/3) of the first Mortgagees (based on one vote
for each first mmtgage owned) or two-thirds (2/3) of the Class A Members have given
their prior written approval, the Association shall not take any of the following actions:
(i) by act or omission, seek to abandon, pa1tition, subdivide,
encumber, sell or transfer the Common Area or the Limited Common Area. The
re-subdivision and/or adjustment of boundary lines of the Common Area or the
Limited Common Area and the granting of easements by the Association shall not
require the consent described in subsection (a) above;
(ii) change the method of determining the obligations, assessments,
dues, or other charges that may be levied against an Owner;
(iii) by act or omission, waive or abandon any scheme of regulations or
their enforcement pertaining to the architectural design or the exterior appearance
of Dwdling Units and their appurtenances, the exterior maintenance of Dwelling
Units and their appurtenances, the maintenance of the Common Area or the
Limited Common Area, common fences and driveways, and the upkeep of lawns
and plantings in the Property;
(iv) fail to maintain fire and extended coverage insurance on insurable
parts of the Common Area or the Limited Common Area or other property owned
by the Association on a current replacement cost basis in an amount not less than
one hundred percent (I 00%) of the insurable value, based on current replacement
costs, not including land value; or
(v) use hazard insurance proceeds for losses to the Common Area or
the Limited Common Area or other property owned by the Association for other
than the repair, replacement or reconstrnction of such property.
{b) A Mortgagee shall be given written notification from the Association of
any default in the performance of any obligation under this Declaration or related
Association documents by the Owner of a Lot that is the security for the indebtedness due
the Mo1tgagee, which defaull is not cured within sixty (60) days after the Owner's receipt
of notice of the default.
(c) A Mortgagee may, jointly or singly, pay taxes or other charges which are
in default and which may or have become a charge against the Common Area or the
Limited C01runon Area and may pay overdue premiums on hazard insurance policies or
secure new hazard insurance coverage upon the lapse of a policy for such Common Area
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or Limited Common Area. The Mortgagee making such payments shall be owt:<l
immediate reimbursement therefor from the Association.
(d) The assessments imposed by the Association shall include an adequate
reserve fund for maintenance, repairs and replacements for those parts of the Common
Area or the Limited Common Area which may be replaced or require maintenance on a
periodic basis. Such reserves shall be payable in regular installments rather than by
Special Assessment.
Section 14.4. Fannie Mae. Assuming that Mortgagees may secure funding for
mortgage loans by selling mortgage loans, including mortgages on Lots and/or Dwelling Units in
the Community, to the Federal National Mortgage Association (a/k/a "Fannie Mae"), the
following requirements shall apply to all Lots and Dwelling Units in the Community:
(a) A Mortgagee shall be given written notification from the Association of
the following:
(i) any condemnation or casualty loss that affects either a material
portion of the Common Area, the Limited Common Area, or the Lot that is the
security for the indebtedness due the Mortgagee;
(ii) any default in the perfonnance of any obligation under this
Declaration or related Association documents by the Owner of a Lot that is the
security for the indebtedness due the Mortgagee, which default is not cured within
sixty ( 60) days after the Owner's receipt of notice of the default;
(iii) any lapse, cancellation or material modification of any insurance
policy or fidelity bond maintained by the Association; or
(iv) any proposed action that would require the consent of a specified
percentage of Mortgagees.
(b) Provided that improvements or Structures have been constructed in the
Common Area and provided that a Mortgagee gives written notice to the Association that
it has relied on the value of the improvements and/or Structures in making a loan on a
portion or all of the Property, then subject to the right of Declarant to annex additional
areas as provided in Article XV herdn, unless at least sixty-seven percent (67%) of the
Members, and Mortgagees representing at least fifty-one percent (51 %) of those Lots
with Mortgages have given their prior written approval, the Association shalt not add or
amend any material provision of this Declaration or related Association documents
concerning the following:
(i) voting rights of any Memher;
(ii) assessments, assessment liens, or subordination of such liens;
(iii) reserves for maintenance, repair and replacement of those pa.tis of
the Conunon Area that may be replaced or require maintenance on a periodic
49
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basis;
(iv) responsibility for maintenance and repair of the Property;
(v) reallocation of interests in the Common Area or the Limited
Common Area or rights to its use, except as provided in Article III and Article TV
herein;
(vi) converting Lots into Common Area or Limited Common Area, or
vice versa;
(vii) annexation or withdrawal of property to or from the Property
(other than annexation of those propetties referred to in Article XV);
(viii) insurance or fidelity bonds;
(ix) leasing of Dwelling Units;
(x) imposition of any right of first refusal or similar restriction on the
right of an Owner to seU, transfer or otherwise convey its property;
(xi) a decision by the Association to establish self-management when
professional management has been required previously by a Mortgagee;
(xii) restoration or repair of the Property after a hazard damage or
partial condemnation;
(xiii) any provisions that are for the express benefit of Mortgagees; and
(xiv) termination of the legal status of the Association after substantial
destruction or condemnation of the subdivision occurs.
An addition or amendment to this Declaration or related Association documents shall not
be considered material if it is for the purpose of clarification or correcting errors. A Mortgagee
who receives a written request to approve additions or amendments who does not deliver or post
to the requesting party a negative response within thirty (30) days of receipt of such request shall
be deemed to have approved such request.
Section 14.5. General.
(a) Condemnation. In the event that there is a condemnation or destruction
of the Common Area, Limited Common Area or other property owned by the
Association, to the extent practicable, condemnation or insurance proceeds shall be used
to repair or replace the condemned or destroyed property.
(b) Books and Records. A Mortgagee shall have the right to examine and
copy at its expense the books and records of the Association during nonnal business
hours and upon reasonable notice to the Association.
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(c) Notice. As set forth in thb Arti cle XIV, Mortgagees shall have the right,
upon request, to receive notice of (a) any material amendment to the Declaration, the By-
Laws or the Articles; and (b) if professional management has been required by a
Mortgagee, the decision of the Association to terminate such professional management
and assume self-management.
(d) Excess Proceeds. Should there be excess insurance or condemnation
proceeds after the renovation, repair or reconstruction called for herein, such excess
proceeds may be dishibuted equally to the Owners, apportioned equally among the Lots;
subject, however, to the priority of a Mortgagee with regard to the proceeds applicable to
the Lot seeming said Mortgagee and in accordance with Indiana law.
(e) A udited Financial Statement. The Association must provide an audited
financial statement for the preceding fiscal year to a Mortgagee upon its written request.
(t) Termination. Eligible Mortgagees representing at least sixty-seven
percent (67%) of the votes of the mortgaged Lots must consent to the termination of the
legal status of the Association for reasons other than substantial destmction or
condemnation of the Property.
(g) Damage t o Common Ana. The Association shall cause the immediate
repair, reconstruction or renovation of any damage to the Common Area or the Limited
Common Area unless a decision not to repair, reconstrnct or renovate is approved by the
Board of Directors and a majority of the Mortgagees.
ARTICLE XV.
GENERAL PROVISIONS
Section 15.1. Enforcement. The Association or any Owner shall have the right to
enforce, by a proceeding at law or in equity, all restrictions, conditions, covenants, reservations,
easements, liens and charges now or hereafter imposed by the provisions of this Declaration or
other Association documents unless such right is specifically limited herein or therein. 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 tight 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 tenn, provision,
covenant or condition of the Declaration shall be deemed to be cumulative and the exercise of
any one or more thereof shall not he deemed to constitute an election of remedies nor shall it
preclude the party exercising the same from exercising such ptivileges as may be granted to such
party by this Declaration or at law or in equity.
Section 15.2. Costs and Attorneys' Fe.es. In any proceeding arising because of failure
of an Owner to make any payments required by this Declaration, or to comply with any
provision of this Declaration, the Articles, the By-Laws, or the rules an<l regulations adopted
pursuant thereto, as each may be amended from time to time, the Association shall be entitled to
recover its costs and reasonable attomcys' fees incurred with such default or failure.
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Section 15.3. Severabilitv; Headine:s; Conflicts. Invalidation of any one of the
provisions of this Declaration by judgment or court order shall in no way affect any other
provision, which shall remain in full force and effect. Titles of paragraphs are for convenience
only and are not intended to limit or expand the covenants, rights or obligations expressed
therein. In the case of any conflict between the Articles and this Declaration, this Declaration
shall control; in the case of any conflict between this Declaration and the By-Laws, this
Declaration shall control.
Section 15.4. 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 herein, for a tenn of twenty (20)
years from the date this Declaration is recorded, after which time the covenants and restrictions
of this Dt:daration shall be automatically extended for successive periods of twenty (20) years
each, unless terminated by a written and recorded instrument approved in advance by the
affirmative and unanimous vote of all Members of the Association and their respective
Mortgagees.
Section 15.5. Material Amendment/E xtraordinary Action.
(a) App1·oval Requirements. In accordance with Federal Agencies'
requirements, material amendments (11 Material Amendments") or extraordinary actions
("Extraordinary Actions"), as each such term is defined below, must be approved by
Members entitled to cast at least sixty-seven percent (67%) of the votes of Members
present and voting, in person or by proxy, at a meeting held for the puqmse of
considering the amendment in accordance with the notice and quorum requirements for
Material Amendments and Extraordinary Actions contained in the By-Laws, such vote
including the vote of a majority of the Class A Members present and voting, in person or
by proxy, at such meeting and the vote of the Class B Member, if any.
(b} Material Amendment. A Material Amendment includes adding, deleting
or modifying any provision regarding the following:
l\ I 1633455.4
(i) assessment basis or assessment liens;
(ii) any method of imposing or detennining any charges to be levied
against individual Owners;
(iii) reserves for maintenance, repair or replacement of Common Area
or Limited Common Area improvements;
(iv) maintenance obligations;
(v) allocation of rights to use Common Areas or Limited Common
Areas, except as provided in Article m and Article IV herein;
(vi} any scheme of regulation or enforcement of standards for
maintenance, architectural design or exterior appearance of improvements on
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Lots;
(vii) reduction of insurance requirements;
{viii) restoration or repair of Common Area or Limited Common Area
improvements;
(ix) the annexation or withdrawal of land to or from the Property other
than annexation or withdrawal of those properties referred to in this Article XV;
{x) voting rights;
(xi) restrictions affecting leasing or sale of a Lot; or
(xii) any provision which is for the express benefit of Mortgagees.
( c) Extraordinary Action. Alternatively, an Extraordinary Action includes:
(i) merging or consolidating the Association (other than with another
non-profit entity formed for purposes similar to this Association);
(ii) determining not to require professional management ·if that
management has been required by the Association documents, a majority of
eligible Mortgagees or a majority vote of the Members;
(iii} expanding the Association to include land not previously described
as annexable which increases the overall land area of the project or nwnber of
Lots by more than ten percent {10%};
(iv) abandoning, partitioning, encumbering, mortgaging, conveying,
selling or otherwise transferring the Common Area or the Limited Conunon Area
except for (i) granting easements; (ii) dedicating Common Area or Limited
Common Area as required by a public authority; (iii) re-subdividing or adjusting
the boundary lines of the Common Area or the Limited Common Area; or
(iv) transferring Conunon Area or Limited Common Area pursuant to a merger or
consolidation with a non-profit entity fonm::d for purposes similar to the
Association;
(v) using insurance proceeds for purposes other than reconstruction or
repair of the insured improvements; or
(vi) making capital expenditures (other than for repair or replacement
of existing improvements) during any period of twelve ( 12) consecutive months
costing more than twenty percent (20%) of the annual operating budget.
(d) C lass Am endments. Any Material Amendm~nt which changes the rights
of any specific class of Members must be approved by Members entitled to cast at least
fifty-one percent (51 %) of the votes of all Members of such class present and voting, in
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person or by proxy, at a meeting held in accordance with the requirements contained in
the By-Laws.
(e) Material Amendment and /or E xtraordinaq Actions Amendments .
The following Material Amendments and Extraordinary Actions must be approved by
Members entitled to cast at least sixty-seven percent (67%) of the total authorized votes
of all Members of the Association, including at least a majority of the total authotized
votes entitled to be cast by Class A Members and the vote of the Class B Member, if any:
(i) termination of this Declaration;
(ii) dissolution of the Association, except pursuant to a consolidation
or merger; and
(iii) conveyance of all Common Areas and Limited Common Areas.
(t) VA Amendments. If the VA has guaranteed any loans secured by a Lot,
so long as there is a Class B Member, all Material Amendments and Extraordinary
Actions must have the approval of the VA; provided, however, in the event the VA fails
to respond to a written request for approval within thirty (30) days of the VA 's receipt of
such written request, the VA shall be deemed tu have consented to such request..
Section 15.6. Amendment. Amendments to this Declaration other than Material
Amendments or Extraordinary Actions shall be approved by at least sixty-seven percent (67%)
of the votes entitled to be cast by all Members present and voting, in person or by proxy. at any
duly called and conveyed meeting for the purpose of considering the amendment, or in writing
by Members entitled to cast at least sixty-seven percent (67%) of the total authorized votes of all
Members and the vote of the Class B Member, if any.
Any amendment to this Declaration must be properly executed and acknowledged by the
Association (in the manner required by law for the execution and acknowledgment of deeds) and
recorded among the appropriate land records.
Section 15.7. Special A mendment. Declarant may make any amendment required by
any of the Federal Agencies or by the Local Goveming Authorities, as a condition of the
approval of this Declaration, by the execution and recordation of such amendment following
notice to all Members.
Notwithstanding anything in this Declaration to the contrary, Declarant hereby reserves
the right to unilaterally amend and revise the standards, covenants and restrictions contained in
this Declaration for any reason. No such amendment, however, shall restrict or diminish
materially the rights or increase or expand materially the obligations of Owners with respect to
Lots conveyed to such Owners prior to the amendment or adversely affect the rights and interests
of Mortgagees holding first mortgages on Lots at the time of such amendment. Declarant shall
give notice in writing to such Owners and Mortgagees of any amendments. Dedarant shall not
have the tight at any time by amendment of this D~claration to grant or establish any easement
through, across or over any Lot which Dedarant has previously conveyed without the consent of
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the Owner of such Lot. Any amendment to this Declaration executed solely by Declarant that
modifies the rights and obligations of Owners with respect to the recreational use of the Lakes
shall be deemed to not restrict or diminish the rights or increase or expand the ohligations of any
Owners, and any such amt:ndment regarding the recreational use of the Lakes may be made
unilaterally by Declarant during the Development Period. All amendments to this Declaration
shall be in writing and recorded among the approp1iate lan<l records.
Section l 5.8. Waiver. Declarant 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 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 shall he duly acknowledged and recorded in the Recorder's Office.
Section 15.9. Annexation of Additional Propertv. Notwithstanding anything
contained in this Declaration to the contrary, Declarant may annex any Additional Property
without the consent of the Association. The Association may annex any Additional Property and
provide for maintenance, preservation and architectural control of Lots and Common Area or
Limited Common Area within such Additional Property, and may add to its membership under
the provisions of Article n herein, with the written consent of more than fifty percent (50%) of
each class of Members. Any future improvements on the Additional Property must be consistent
with or better than the initial improvements on the Property in tenns of quality, design and
construction and comparable in style, size and cost.
Section 15.10. Withdrawable Real Estate.
(a) Prior to the date which is five (5) years after the date of the recordation of
this Declaration, 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 upon which Dwelling Units have not been
constructed.
(b) Upon the dedication or the conveyance to any public entity or authority of
any po1tion of the Property for public street purposes, this Declaration shall no longer be
applicable to the land so dedicated or conveyed.
Section 15.11. Management Contracts. The Board of Directors may elect to enter into
profossional management contract(s) for the management of the Property, in accordance with
this Declaration, the Articles and By-Laws.
Section 15.12. Dissolution. Subject to the restrictions and conditions contained in
Article XlY and this Article XV , the Association may be dissolved with the assent given in
writing and signt!<l by at least two-thirds (2/3) of each class of Members. 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
55
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shall be then offered to be granted, conveyed or assigned to any non-profit corporation, trust or
o ther organiiation 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".
Section 1 S. 13. Neelh.?ence. Each Owner shall be liable for the expense of an y
maintenance, repair or replacement rendered necessary by his, her or its negligence or by that of
any member of his, her or its family or his, her, its or their guests, employees, agents, invitees or
lessees, to the extent that such expense is not covered by the proceeds of insurance carried by the
Association. An Owner shall pay the amount of any increase in insurance premimns occasioned
by violation of any of the Restrictions by such Owner, any member of his, her or its family or
their respective guests, employees, agents, invitees or tenants.
Section 15.14. Acceptance and R atifica t io n . All present and future Owners,
Mortgagees, tenants and occupants of the Lots and Dwelling Units, and other Persons claiming
by, through or under them, shall be subject to and shall comply with the provisions of this
Declaration, the Articles, the By-Laws and the rules, regulations and guidelines as adopted by
the Board of Directors and (to the extent of its jurisdiction) the Architectural Review Board, or
any committee thereof, as each may be amended or supplemented from time to time. The
acceptance of a deed of conveyance or the act of occupancy of any Lot or Dwelling Unit shall
constitute an agreement that the pro visions of this Declaration, the Articles, the By-Laws and
rules, regulations and guidelines, as each may be am ended or supplemented from tim e to time,
are accepted and ratified by such Owner, tenant or occupant, and all such provisions shall be
covenants running with the land and shall bind any Person having at any time any interest or
estate in a Lot or Dwelling Unit or the Pro perty, all as though such provisions were recited and
stipulated at length in each and every deed, conveyance, mortgage or lease thereof. All Persons
who may own, occupy, use, enjoy or control a Lot or Dwelling Unit or any part of the Property
in any manner shall be subject to this and guidelines applicab l e thereto as each may be amended
or supplemented from time to time.
Section 15.15. P erpetuities. If any of the covenants, conditions, restrictions, or other
provisions of this Declaration would be unlawful, void, or voidable for violation of the common
law rule against perpetuities, then such provisions shall continue o n for the maximum amount of
time as allowed by Indiana Code §32-17-8, et seq. as amended from time to time.
* * * *
[REMAINDER OF PAGE LEfT BLANK INTENTIONALLY]
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WITNESS the following signatures:
STATE OF INDIANA )
ii ) SS:
COUNTY OFftCt/"\j lb i\, )
Before me, a Notary Public in and for said County and State, personally appeared Paul
Shoopman and Shelley Shoopman, who acknowledged the execution of the foregoing
Declaration of Covenants, Conditions and Restrictions for Waterfront of West Clay, and who,
having been duly sworn, stated that any representations therein contained are true.
Witness my hand and Notarial Seal this day of {\,~(·· 2018. _ · O
Leta Kam Po'Wllll ~
Nobry Publlc~clal Seal
.:::=pf:c:~~~1 l / fl-J °' ((, p (} iJ ~ { {
Printed Name Notary Public
My Commission Expires: / 6 _,,,l ZoZJ. My County of Residence: '(!\ fl r;., f'\
This instrnment was prepared by and after recording return to: Timothy E. Ochs, lCE MlLLER
LLP, One American Square, Suite 2900, Indianapolis, IN 46282.
l afftnn, under the penalties for petjury, that I have taken reasonable care to redact each Social
Security number in this document, unless required by law. Tirnothv E. Ochs .
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EXHIBIT A
LEGAL DESCRJPTION OF PROPERTY
LOTS 36-A, 37-A, 38-A, 39-A, 40-A, 41-A, 42-A, 43-A, 44-A, 45-A, 46-A, and 47-A and
BLOCK Gin the PLAT OF WATERFRONT OF WEST CLAY, SECTION ONE, A REPLAT
OF LOTS 36-41 AND BLOCK "G" lN THE SANCTUARY AT l 16rn STREET SECTION
ONE AND LOTS 42-45 fN THE SANTUARY AT 116TH STREET SECTION TWO "A", per
the Plat thereof, recorded as Instrument Number 2017049804 in the office of fue Recorder of
Hamilton County, Indiana.
ALSO
LOTS 34 and 35 in the PLAT OF THE SANCTUARY AT l 16TH STREET, SECTION ONE
PER THE PLAT THEREOF, recorded as Instrument Number 2009016949 fN PLAT CABINET
4, SLIDE 526, in the otlice of the Recorder of Hamilton County, Indiana.
ALSO
LOTS 85-A, 86-A, 87-A, 88-A, 89-A, 90-A, 91-A, 92-A, 95-A, 96-A, 99-A, 100-A, 101-A, and
102-A and BLOCK Pin the PLAT OF WATERFRONT OF WEST CLAY, SECTION TWO, A
REP LAT OF LOTS 85-92, 95-96, 99-102 AND BLOCK ··p" fN THE SANCTUARY AT l 16TH
STREET SECTION THREE, per the Plat thereof, recorded as Instrument Number 2017049805
in the office of the Recorder of Hamilton County, Indiana.
AND ALSO
LOTS 93, 97, 98, 103, 104, 105, 107, 108, 109 ofTHE SANCTUARY AT 116TH STREET
SECTION THREE, per the Plat thereof, recorded as Instrument Number 2009067735 in the
office of the Recorder of Hamilton County, Indiana.
[\[ 1633455.4
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