Condominium Declaration - Old Town - Magnolia Cross References: __________________ [Deed]
__________________ [Plat]
__________________ [Floor Plans]
CONDOMINIUM DECLARATION
FOR
MAGNOLIA CONDOMINIUMS
This CONDOMINIUM DECLARATION FOR MAGNOLIA CONDOMINIUMS (the
“Declaration”) is made this _____ day of October, 2020, pursuant to the Indiana Condominiums
Act, IC 32-25-1, et seq., as amended (the “Act”) by _________________________, an [Indiana]
limited liability company (the “Declarant”).
RECITALS:
A. Declarant, whose principal office and place of business is located at 31 1st Street
SW, Carmel, Indiana 46032, is the sole owner of the fee simple title to certain real estate located
in Hamilton County, Indiana, and more particularly described in Exhibit A attached hereto and by
reference made a part hereof (the “Real Estate”), by virtue of a [Limited Warranty Deed] dated
________________, and recorded on _______________ as Instrument No. ________________ in
the Office of the Recorder of Hamilton County, Indiana.
B. A general site plan depicting the Condominium (as defined below) is set forth in
Exhibit B attached hereto and by reference made a part hereof.
C. Declarant, by execution of this Declaration, does hereby create, submit, declare,
and subject that portion of the Real Estate [identified as ___________] to a condominium regime
under the Act together with the building, improvements, and appurtenances as shown and depicted
on the Plans to be known as Magnolia Condominiums (the “Condominium”). The Condominium
may be expanded to include that portion of the Real Estate identified as [______] (as defined
below) in accordance with the terms of this Declaration. [NEED DRAFT PLAT WITH LOT OR
TRACT DESIGNATIONS TO COMPLETE.]
NOW THEREFORE, in consideration of the foregoing and the covenants herein contained,
Declarant declares that the Real Estate and the Condominium Units shall be held, transferred, sold,
conveyed, leased and occupied subject to the covenants, conditions, restrictions, easements,
charges and liens set forth in this Declaration as follows:
1. Definitions. The following terms, as used in this Declaration, unless the context
clearly requires otherwise, shall mean the following:
(a) “Act” means the Condominium Law of the State of Indiana, Indiana Code
§32-25-1 et. seq., as such Act may be amended. The Act is incorporated herein by
reference.
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(b) “Applicable Date” means the date determined pursuant to Section 2.02 of
the Bylaws.
(c) “Articles” or “Articles of Incorporation” means the Articles of
Incorporation of the Association, as hereinafter defined. The Articles of Incorporation are
incorporated herein by reference.
(d) “Association” means the “Magnolia Condominiums Homeowners’
Association, Inc.”, an Indiana not-for-profit corporation more particularly described in
Paragraph 12 of this Declaration.
(e) “Board” or “Board of Directors” means the governing body of the
Association, being the Initial Board of Directors referred to in the Bylaws or subsequent
Board of Directors elected by the Owners in accordance with the Bylaws. The terms
“Board” and “Board of Directors”, as used in this Declaration and in the Bylaws, shall be
synonymous with the term “board of directors” as used in the Act.
(f) “Building” or “Buildings” means the structure(s) which the Declarant shall
construct upon the Real Estate in which the Condominium Units, some of the Common
Areas (defined below) and some of the Limited Common Areas (defined below) are
located. The Buildings which may be constructed are more particularly described and
identified on the Plans and in Paragraph 2 of this Declaration.
(g) “Bylaws” means the Bylaws of the Association providing for the
administration and management of the Property as required by and in conformity with the
provisions of the Act. A true and accurate copy of the Bylaws is attached to this
Declaration as Exhibit D and incorporated herein by this reference.
(h) “Common Areas” means the common areas and facilities appurtenant to the
Property and consists of and includes all portions of the Property and the Improvements
located on the Property, excluding the Condominium Units, except as otherwise described
in this Declaration and the Bylaws, all as more particularly defined in Paragraph 5 of this
Declaration.
(i) “Common Expenses” means all sums and expenses of administration of the
Association and expenses for the upkeep, operation, maintenance, repair and replacement
of the Common Areas and Limited Common Areas and all sums lawfully assessed against
the Owners by the Association or as declared by the Act, this Declaration, or the Bylaws.
Unless otherwise provided herein or otherwise determined by Declarant or the Association
(as applicable) in accordance with this Declaration, Common Expenses shall be paid by
Owners on a pro rata basis in accordance with their respective Percentage Interests as
determined from time to time.
(j) “Condominium Unit” means each one of the living units constituting the
Condominium. Each Unit shall be a separate freehold estate as provided in the Act
consisting of the space within the boundaries of such Unit and being more particularly
described and identified on the Plans and in other paragraphs of this Declaration. For
purposes of the application of the Act to the Condominium, the term “Unit” as used in this
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Declaration and all attending documents shall be deemed to be synonymous with the term
“Condominium Unit.” Wherever the term “Condominium Unit” is used in the Act, the
name shall be deemed to apply to the term “Unit” as used in the documents of the
Condominium.
(k) “Declarant” shall mean and refer to Magnolia Condos, LLC, an Indiana
limited liability company, and any successors and assigns whom such limited liability
company designates in one or more written recorded instruments to have the rights of
Declarant under this Declaration, including, by not limited to, any mortgagee acquiring
title to all or any portion of the Property pursuant to the exercise of rights under, or
foreclosure of, a mortgage executed by Declarant. A mortgagee acquiring title by virtue
of foreclosure against the Declarant does not assume the prior obligations or liabilities of
the Declarant.
(l) “Insurance Trustee” means any bank, with trust powers, authorized to do
business in Marion County, Indiana which may be designated by the Board of Directors
for the custody and disposition, as herein or in the Bylaws provided, of insurance proceeds
and condemnation awards.
(m) “Limited Common Areas” means those portions of the Common Areas and
facilities which are limited in their use and enjoyment to fewer than all the Owners, all as
more particularly described in Paragraph 6 of this Declaration.
(n) “Majority of Mortgagees” means those Mortgagees with first mortgages on
Condominium Units to which are allocated at least fifty-one percent (51%) of the
Percentage Vote allocated to Mortgaged Units.
(o) “Majority of Owners” and “Majority of Percentage Vote” means the owners
entitled to cast as least fifty-one percent (51%) of the Percentage Votes in accordance with
the applicable percentages set forth in this Declaration.
(p) “Managing Agent” means a property management agent employed by the
Association or Declarant pursuant to Section 3.06 of the Bylaws.
(q) “Member” means a member of the Association.
(r) “Mortgagee” means the holder of a first mortgage lien on a Condominium
Unit.
(s) “Mortgaged Unit” means a Condominium Unit that is subject to the lien of
a mortgage held, insured or guaranteed by a Mortgagee.
(t) “Owner” means a person, firm, corporation, partnership, association, trust,
or other legal entity or any combination thereof who owns the fee simple title to a
Condominium Unit.
(u) “Owners” means the owners of all the Units.
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(v) “Percentage Interest” means the percentage of undivided interest in the fee
simple title to the Common Areas and Limited Common Areas appertaining to each
Condominium Unit as specifically expressed in this Declaration, to be determined from
time to time based upon the square footage of each Condominium Unit as it relates to the
square footage of all Condominium Units in the then-completed Building.
(w) “Percentage Vote” means that percentage of the total vote accruing to all of
the Condominium Units which is appurtenant to each particular Condominium Unit and
accrues to the Owner of such Condominium Unit. The Percentage Vote to which each
Owner shall be entitled on any matter upon which the Owners are entitled to vote shall be
the same percentage as the Percentage Interest appurtenant to such Owner’s Condominium
Unit.
(x) “Person” means an individual, firm, corporation, partnership, associate,
trust, limited liability company, or other legal entity, or any combination thereof.
(y) “Plans” means the floor plans, building plans and elevations of the Building
and Condominium Units constructed and which may be constructed upon the Real Estate,
including the [plans] prepared and certified by [Nick Alexander] of Studio M Architects
under date of _____________________, 2020, and filed in the Office of the Recorder of
Hamilton County, Indiana, all of which are incorporated herein by reference and any
supplemental plans that are prepared and filed in connection with the Real Estate.
(z) “Property” means [Tracts A and B] and the appurtenant easements, along
with the Condominium Units, the Buildings, garages, improvements, recreational facilities,
appurtenances, and property of every kind and nature whatsoever, real, personal, and
mixed, located upon the Real Estate and used in connection with the operation, use, and
enjoyment of the Magnolia Condominiums, but expressly does not include the personal
property of the Owners or their tenants. In the event the Condominium is expanded in
accordance with the terms and conditions of this Declaration, “Property” shall also include
[Tracts C through F, as applicable].
(aa) “Real Estate” means that land more particularly described on Exhibit A
attached hereto and by reference incorporated herein, which includes [Tracts A through F,
inclusive].
(bb) “Supplemental Declaration” means any supplement or amendment to this
Declaration that may be recorded by Declarant and that extends the provisions of this
Declaration to any part of the Real Estate and contains such complementary or
supplementary provisions for such part of the Property as are required or permitted by the
Act or this Declaration, as amended or supplemented.
(cc) [“Phase I” means that portion of the Real Estate described in Exhibit A as
____________”.]
(dd)[“Future Phase” means that portion of the Real Estate described in Exhibit
B as ____________”.]
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2. Description of the Buildings. The two (2) Buildings to be constructed upon [Tracts
A and B] shall each be four (4) stories with parking at grade and with five (5) Units located on
levels 2, and 3 of the Building, as described in the Plans, for a total of ten (10) Units. Up to an
additional four (4) Buildings of four (4) stories with parking at grade with five (5) Units each for
a total of twenty (20) additional Units may be constructed in future phases on [Tracts C through
F, inclusive, as applicable], with such additional Buildings (and the Units contained therein)
becoming subject to the terms and conditions of this Declaration upon substantial completion
thereof and recording of a Supplemental Declaration subjecting each of Tracts C through F to the
Condominium. Nothing contained herein shall be deemed to require construction of the Buildings
on any additional Tracts or the construction of all thirty (30) Units. Declarant shall be permitted to
construct and sell Condominium Units in any Building or Buildings on a continuing basis without
any requirement to construct any future Building or Buildings except as determined in Declarant’s
sole and absolute discretion.] Further details, terms and use conditions for the Buildings and
appurtenances, including applicable Common Areas and Limited Common Areas within the
Buildings, and including, but not limited to the storage areas, recreational areas, parking areas and
other Limited and Common Areas affecting the Property, are set forth in and further delineated on
the Plans.
3. Legal Description. Each Condominium Unit is identified on the plans by a Building
number and Condominium Unit number. The legal description for each Condominium Unit shall
consist of the Building number and Unit number as shown on the Plans and shall be stated as
“Building ___, Unit ____,” in the “Magnolia Condominium.”
4. Description of Condominium Units.
(a) Appurtenances. Each Condominium Unit shall consist of all space within
the boundaries thereof, as hereinafter defined, and all portions of the applicable Building
situated within such boundaries, including but not limited to all fixtures, facilities, utilities,
equipment, appliances, and structural components designed and intended solely and
exclusively for the enjoyment, use and benefit of the Condominium Unit wherein the same
are located, or to which they are attached, but excluding therefrom that designated,
designed or intended for the use, benefit, support, safety or enjoyment of any other
Condominium Unit or which may be necessary for the safety, support maintenance, use
and operation of any part of the applicable Building or which are normally designed or
designated for common use; provided, however, that all fixtures, equipment and appliances
designated, designed or intended for the exclusive enjoyment, use and benefit of a
Condominium Unit shall constitute a part of such Condominium Unit, whether or not the
same are located within or partly within the boundaries of such Condominium Unit, and
all interior walls and all of the floors and ceilings within the boundaries of a Condominium
Unit are considered part of the Condominium Unit.
(b) Boundaries. The boundaries of each Condominium Unit shall be as shown
on the Plans, between the interior unfinished surface of the floors, ceilings and perimeter
walls of each according to the Condominium Unit. In the event any horizontal or vertical
or other boundary line as shown on the Plans does not coincide with the actual location of
the respective wall, floor or ceiling surface of the Condominium Unit because of
inexactness of construction, settling after construction, or for any other reasons, the
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boundary lines of each Condominium Unit shall be deemed to be and treated for purposes
of ownership, occupancy, possession, maintenance, decoration, use and enjoyment, as in
accordance with the actual existing construction. Such condition shall not affect the
allocated Condominium Unit square footage or the Condominium Unit Percentage Interest.
In such case, permanent appurtenant easements for exclusive use shall exist in favor of the
Owner of each Condominium Unit in and to such space lying outside of the actual boundary
lines of the Condominium Unit, but within the appropriate wall, floor or ceiling surfaces
of the Condominium Unit.
(c) Percentage Interest. Each Condominium Unit shall carry with it a
Percentage Interest, and the Percentage Interest shall be inseparable from said
Condominium Unit and shall pass with the fee interest to said Condominium Unit as an
integral part of such Condominium Unit.
5. Common Areas and Facilities. “Common Areas” shall include but are not to be
limited to the following areas of the Property that are subject to this Declaration from time to time:
(a) The Property (excluding the Condominium Units and any land where any
current Building exists or future Building may be constructed);
(b) The foundations, columns, girders, beams, supports and exterior surfaces of
roofs of the Buildings;
(c) The yards, gardens, sidewalks and parking areas, except to the extent the
same are otherwise classified and defined herein as part of the Condominium Unit or
Limited Common Area;
(d) All facilities providing central electricity, gas, water supply systems,
stormwater drainage, and sanitary sewer or septic systems and mains serving the Buildings;
(e) Exterior lighting fixtures and electrical service lighting the exterior of the
Buildings unless separately metered to a particular Condominium Unit;
(f) Pipes, ducts, electrical wiring and conduits and public utilities lines which
serve more than one Condominium Unit;
(g) All streets or interior access drives designated on the Plans as Common
Area;
(h) Floors, roofs and exterior perimeter walls of the Buildings, except to the
extent the same are otherwise classified and defined herein as part of the Condominium
Unit or Limited Common Area;
(i) All facilities and appurtenances located outside of the boundary lines of the
Condominium Units, except those areas and facilities expressly classified and defined
herein as Limited Common Areas or as part of the Condominium Unit;
(j) All real and personal property now or hereafter owned or leased by the
Association pursuant to its authority under this Declaration and the Bylaws; and
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(k) Any other portions of the Property necessary or convenient to its existence,
maintenance and safety or normally in common use, except to the extent specifically
included within the boundaries of the Condominium Units.
Each Owner of a Condominium Unit may use the Common Areas in accordance with the
Bylaws, Rules and Regulations and for the purpose for which they were intended without hindering
or encroaching upon the lawful rights of the other Condominium Unit Owners, subject always to
the exclusive use of the Limited Common Areas provided in this Declaration.
6. Limited Common Areas and Facilities. Limited Common Areas and the
Condominium Units to which use thereof is limited are as follows:
(a) Mechanical Equipment. Air conditioning equipment, heating equipment,
ventilation equipment, ducts, pipes, wires, bathroom plumbing facilities and fixtures,
kitchen plumbing facilities and fixtures, and hot and cold water systems, including water
heaters, shall be facilities reserved for the use of the Condominium Units respectively
served by such equipment. The designation of the Limited Common Areas and the
Condominium Unit or Units they service is set forth and depicted on the Plans or as further
described and defined in this Declaration. The costs of upkeep, maintenance, replacement,
and management of the Limited Common Areas and facilities, systems, and equipment
shall be charged to the Owners of the Condominium Unit or Units served by such
equipment as Condominium Unit expenses in the manner provided in the Bylaws.
(b) Halls, Balconies, Porches and Access. The halls, corridors, lobbies,
elevators, stairs, stairways, entrances and exits of each Building, if any, (except those
located within the interior of Condominium Units or dedicated entry points for individual
Condominium Units) shall be limited to the use of the Condominium Units of the Building
served by such halls, corridors, lobbies, stairways, entrances, and exits. Balconies, patios,
porches, decks and sidewalks serving a particular Condominium Unit shall be limited to
the exclusive use of the Condominium Unit to which they are attached or appertain.
(c) Windows and Doors. The exterior sides and surfaces of doors, windows
and frames surrounding the same in the perimeter walls in each Condominium Unit shall
be limited to the exclusive use of the Condominium Unit to which they appertain.
(d) Utilities and Improvements Serving Individual Units. All utilities lying
within the exterior dimensions of the perimeter walls of any Condominium Unit and
exclusively serving a particular Condominium Unit or Units within a Building shall be
deemed to be Limited Common Areas, and shall be restricted to the use and enjoyment of
the Condominium Unit or Units which they serve. Such utilities shall expressly be deemed
to include, but shall not be limited to all water, sewer, gas, electrical, TV, telephone, and
heating and air conditioning lines, ducts, improvements, and facilities of every type or
nature whatsoever. Except as may otherwise be expressly provided, such utilities and all
portions thereof lying outside the exterior perimeters of any Condominium Unit shall be
deemed to be and remain Common Areas. In addition to those facilities established as
Limited Common Areas above, all heating and air conditioning facilities lying within or
without the exterior perimeters of any Condominium Unit and serving any particular
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Condominium Unit within each Building shall be deemed to be Limited Common Areas,
and shall be restricted to the use and enjoyment of the Condominium Unit which they serve.
The cost of maintaining and replacing such facilities shall be borne by the Condominium
Unit served by such equipment, and the Owner shall be personally responsible for such
maintenance replacement and costs. Such heating and air conditioning facilities shall
include all heating and air conditioning ducts, lines, and improvements lying within the
exterior or interior perimeters of the Building, all air condensers located or lying outside
any Condominium Unit and all lines, ducts, or facilities connecting any such condenser
with any of the said lines, ducts or improvements within the perimeters of the Building.
(e) Limited Areas Depicted on Plans. Any and all other areas and facilities
designated and shown on the Plans as Limited Common Areas shall be limited to the
Condominium Unit or Units to which they appertain as shown on the Plans.
7. Ownership of Common Areas and Percentage Interest. Each Owner shall have an
undivided interest in the Common Areas and the Limited Common Areas, as tenants in common
with all other owners, equal to his Condominium Unit’s Percentage Interest which interest shall
pass with title to the Condominium Unit. The Percentage Interest in the Common Areas and
Limited Common Areas appertaining to each Condominium Unit is set forth in Exhibit C attached
to this Declaration and made a part hereof and may be amended by Declarant from time to time
for other Condominium Units. The Percentage Interest of each Condominium Unit shall be a
percentage equal to the number of square feet per Condominium Unit divided by the total number
of square feet for all of the Condominium Units which, from time to time, have been submitted
and subjected to the Act and this Declaration as herein provided and which constitute a part of the
Condominium. Except as otherwise provided or permitted herein, the Percentage Interest
appertaining to each separate Condominium Unit in the Common Areas and Limited Common
Areas shall be of a permanent nature and shall not be altered without the unanimous consent of all
the Owners and Mortgagees and then only if in compliance with all requirements of the Act and
this Declaration, as amended and supplemented.
THE PERCENTAGE INTEREST APPERTAINING TO EACH CONDOMINIUM UNIT
SHALL ALSO BE THE PERCENTAGE VOTE ALLOCABLE TO THE OWNER THEREOF IN
ALL MATTERS WITH RESPECT TO THE CONDOMINIUM AND THE ASSOCIATION
UPON WHICH THE OWNERS ARE ENTITLED TO VOTE.
THE PERCENTAGE INTEREST APPERTAINING TO EACH CONDOMINIUM UNIT
SHALL ALSO BE THE PERCENTAGE SHARE OF LIABILITY OF EACH OWNER IN THE
COMMON EXPENSE AND THE SHARE OF EACH OWNER IN ANY COMMON PROFIT.
Each Owner, by acceptance of a deed to a Condominium Unit agrees to pay and be
personally liable for the applicable Percentage Share of liability for Common Expenses. No Owner
of a Condominium Unit may exempt himself from liability for contribution to Common Expenses
by a waiver of the use and enjoyment of any of the Common Areas or by abandonment of his
Condominium Unit.
8. Expandable Condominium. Magnolia Condominiums is and shall be an
“expandable condominium,” as defined in the Act, and Declarant expressly reserves the right and
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option to expand the Property in accordance with the provisions of the Act and the following
provisions:
(a) Phases. The Property described and defined as Tracts A and B] is the real estate
being subjected to the Condominium by this Declaration and constitutes the first phase of the
general plan of development of the Property. The Property described and defined as [Tracts C
through ___] is the area into which expansion of Magnolia Condominiums may be made by
Declarant and will constitute the future phases of the general plan of development of the Property.
The maximum number of Units which may be developed on the Property, inclusive of Tracts A
through F, shall be _________ (____). The Condominium may be expanded by Declarant to
include [Tracts C through ____] by the execution and recording of one or more Supplemental
Declaration(s), and such right and option of expansion may be exercised by Declarant so long as
such expansion is done on or before ten (10) years from the date of this Declaration. Such second
phase expansion is entirely at the discretion of Declarant and nothing contained in this original
Declaration or otherwise shall require Declarant to expand beyond [Tracts A and B].
(b) Determination of Percentage Interests. The Percentage Interests which will
appertain to each Unit in Magnolia Condominiums following expansion by Declarant in
accordance with the terms hereof (including the Percentage Interests which appertains to each of
the Units included in this original Declaration), shall be based on the same methodology described
in Paragraph 7 of this Declaration. Exhibit C shall be updated in the Supplemental Declaration to
reflect the Percentage Interests in the Common Areas and Limited Common Areas appertaining to
each Condominium Unit in the expanded Condominium. The reallocation of Percentage Interests
shall vest when the Supplemental Declaration incorporating those changes has been recorded.
(c) Plans. The Plans include the anticipated floor plans, building plans and elevations
of [Buildings 3 through 6] and Condominium Units located in [Buildings 3 through 6].
Simultaneously with the recording of each Supplemental Declaration expanding the Condominium
to include any of [Tracts C through ___], Declarant shall re-record the Plans with any
modifications to the improvements to be constructed on the applicable Tracts as Declarant deems
appropriate in its sole discretion.
(d) Liens. When the Supplemental Declaration incorporating the addition on Units and
expansion of Common Areas is recorded, all liens including, but not limited to, mortgage liens
shall be released as to the Percentage Interest in the Common Areas described in the Declaration
and shall attach to the reallocated Percentage Interests in the Common Areas as though the liens
had attached to those Percentage Interests on the date of the recordation of the mortgage or any
other lien. The Percentage Interest appertaining to additional Units being added by the
Supplemental Declaration are subject to mortgage liens upon the recordation of the Supplemental
Declaration. In furtherance of the foregoing, a power coupled with an interest is granted to the
Declarant, as attorney-in-fact, to shift the Percentage Interests in the Common Areas appurtenant
to each Unit to the percentages set forth in the Supplemental Declaration recorded pursuant to this
Paragraph 8. Each deed, mortgage, or other instrument with respect to a Unit and the acceptance
of such deed shall be deemed a grant and acknowledgment of and consent to such power to said
attorney-in-fact, and shall be deemed to reserve to said attorney-in-fact the power to shift and
reallocate from time to time the percentages of ownership in the Common Areas appurtenant to
each Unit to the percentages set forth in the recorded Supplemental Declaration. Each Owner of a
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Unit by acceptance of a deed, further acknowledges, consents and agrees, as to the Supplemental
Declaration that is recorded as follows:
(i) [Tracts C through F] shall be governed in all respects by the provisions of
the Declaration.
(ii) The Percentage Interest in the Common Areas appurtenant to each Unit
shall automatically be shifted and reallocated to the extent set forth in the recorded
Supplemental Declaration and upon the recording of the Supplemental Declaration, shall
be deemed to be released and divested from such Owner and re-conveyed and reallocated
among the other Owners as set forth in the recorded Supplemental Declaration.
(iii) Each deed, mortgage, or other instrument affecting a Unit shall be deemed
given subject to the conditional limitation that the Percentage Interest in the Common
Areas appurtenant to each Unit shall, upon the recording of the Supplemental Declaration,
to be divested pro tanto to the reduced percentage set forth in the Supplemental Declaration
and vested among the other Owners, mortgagees, and other owning an interest in the other
Units in accordance with the terms and percentages of the Supplemental Declaration.
(iv) A right of revocation is reserved by the grantor in each such deed, mortgage,
or other instrument of a Unit to so amend and reallocate the Percentage Interest in the
Common Areas appurtenant to each Unit.
(v) The Percentage Interest in the Common Areas appurtenant to each Unit
shall include and be deemed to include any additional Common Areas included in land to
which is expanded by the recorded Supplemental Declaration and each deed, mortgage, or
other instrument affecting a Unit shall be deemed to include such additional Common
Areas and the ownership of any such Unit and lien of any such mortgage shall
automatically include and attach to such additional Common Areas as the Supplemental
Declaration is recorded.
(vi) Each Owner shall have a perpetual easement, appurtenant to his Unit, for
the use of any additional Common Areas described in the recorded Supplemental
Declaration, for the purposes therein set forth, except as to any portion the use of which is
limited by exclusive easements granted to the Owners (also known as Limited Common
Areas) of specific Units as may be provided in the Supplemental Declaration.
(vii) The recording of the Supplemental Declaration shall not alter the amount of
the lien for expenses assessed to or against a Unit prior to such recording.
(viii) Each Owner, by acceptance of the deed conveying his Unit, agrees for
himself and all those claiming under him, including mortgagees, that this Declaration and
the Supplemental Declaration are and shall be deemed to be in accordance with the Act
and for purposes of this Declaration and the Act, any changes in the respective Percentage
Interest in the Common Areas as set forth in the Supplemental Declaration shall be deemed
to be made by agreement of all Owners.
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(ix) Each Owner agrees to execute and deliver such documents necessary or
desirable to cause the provisions of this Paragraph 8 to comply with the Act.
9. Encroachments and Easements for Common Areas. If by reason of the location,
construction, settling, or shifting of a Building, any Common Areas or Limited Common Areas
now or subsequently encroach upon any Condominium Unit, then in such event a non-exclusive
reciprocal easement shall be deemed to exist and run to the Owners and the Association for the
maintenance, use, and enjoyment of such Common Area or Limited Common Area.
Notwithstanding any other provision in this Declaration to the contrary, each Owner shall have an
easement in common with another Owner or Owners to use all pipes, wires, ducts, cables, conduits,
utility lines, and other common facilities of any kind or nature located in or running through any
of the other Condominium Units and serving such Owner’s Condominium Unit. Each Owner shall
have the right of ingress and egress from such Owner’s Condominium Unit with such right being
perpetual and appurtenant to the ownership of the Condominium Unit.
10. Real Estate Taxes. Real estate taxes are to be separately assessed and taxed to each
Condominium Unit as provided in the Act. In the event that for any year real estate taxes are not
separately assessed and taxed to each Condominium Unit, but are assessed and taxed on the
Property as a whole, then each Owner shall pay his proportionate share of such taxes to the extent
attributable to the Property in accordance with his respective Percentage Interest.
11. Utilities. Each Owner shall pay for the Owner’s own utilities which are separately
metered. Utilities which are not separately metered shall be treated as and paid as part of the
Common Expenses, unless otherwise agreed by a majority of the Percentage Vote of the Owners.
Declarant presently anticipates that all utilities (gas, water, electric and heating and air
conditioning) will be separately metered. Sewer charges will be based on individual water usage.
12. Owners’ Association. Subject to the rights of the Declarant reserved in the
Declaration and Bylaws and the obligations of the Owners, the maintenance, repair, upkeep,
replacement, administration, management and operation of the Property shall be performed by the
Association. Each Owner of a Condominium Unit shall, automatically upon becoming an Owner
of a Condominium Unit, be and become a Member of the Association and shall remain a Member
until such time as his ownership ceases, but membership shall terminate when such person ceas es
to be an Owner and will automatically be transferred to the new Owner.
The Association shall elect a Board of Directors annually (except for the Initial Board of
Directors described in the Bylaws) in accordance with and as prescribed by the Bylaws. Each
Owner shall be entitled to cast his Percentage Vote for the election of the Board of Directors,
except for such Initial Board of Directors who shall serve for the period provided in the Bylaws.
Each person serving on the Initial Board of Directors, whether as an original member thereof or as
a member thereof appointed by Declarant to fill a vacancy, shall be deemed a Member of the
Association and an Owner solely for the purpose of qualifying to act as a member of the Board of
Directors and for no other purpose. No such person serving on the Initial Board of Directors shall
be deemed or considered a Member of the Association nor an Owner of a Condominium Unit for
any other purpose (unless he is actually an Owner of a Condominium Unit and thereby a Member
of the Association).
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The Board of Directors shall be the governing body of the Association, representing all of
the Owners in providing for the management, administration, operation, maintenance, repair,
replacement and upkeep of the Property exclusive of the Condominium Units.
13. Maintenance, Repairs and Replacement.
(a) Condominium Units. Each Owner shall at its own expense, be responsible
for the maintenance, repair, decoration and replacement of its own Condominium Unit,
except as may otherwise be provided herein. Each Owner shall promptly perform all
maintenance and repair within the Condominium Unit, which, if neglected, might
adversely affect the Property. In addition, each Owner shall furnish and shall be
responsible at his own expense for the maintenance, repairs and replacements of his
Condominium Unit and appurtenant Limited Common Areas exclusively serving the same,
and all equipment serving the same except to the extent otherwise provided herein.
(b) Maintenance Exceptions. Maintenance, repairs and replacements for which
each Owner is not individually responsible are water lines, gas lines, plumbing and electric
lines that service Condominium Units in addition to the Owner’s Condominium Unit and
which are located inside or outside all interior or exterior walls of the Condominium Unit,
including any lines in the area from below the floor to above the ceiling if they are within
an extension of the exterior walls of the Condominium Unit and serve more than one
Condominium Unit. Notwithstanding the foregoing, each Owner shall be responsible for
total replacement of utility lines located inside the Owner’s Condominium Unit from the
interior face of the Condominium Unit’s interior walls and mechanical components of all
fixtures serving only the Owner’s Condominium Unit, such as a lavatory, toilet, bath,
whirlpool, water heater, water softener, HVAC, etc. In addition, in the event any repair,
replacement or maintenance of utility lines (even those serving Condominium Units in
addition to the Owner’s Condominium Unit) is necessary as a result of willful or negligent
misuse by the Owner, the Owner shall be responsible for the cost of such repair,
replacement or maintenance; provided, however, at the option of the Board, the Association
(i) shall control and coordinate all such repairs, replacement and maintenance, (ii) shall be
entitled to undertake the same on behalf and at the expense of such Owner, and (iii) shall
be entitled to assess upon the Condominium Unit of such Owner the costs of such repairs,
replacements and maintenance undertaken on the Owner’s behalf, together with a
reasonable service charge and, when so assessed, a statement for the amount thereof shall
be rendered promptly to the then Owner of the Condominium Unit at which time the
Assessment shall become due and payable and a continuing line and obligation of said
Owner in all respects as provided in Article V of the Bylaws. Any mechanical maintenance
by the Association is for usual and ordinary mechanical maintenance of original
construction. Where any repairs, replacements or maintenance that are the Owner’s
responsibility are not carried out to a good and workmanlike standard to the reasonable
satisfaction of the Association or where Owner fails in such circumstances to carry out
repairs, replacements or maintenance for which Owner is responsible, in the discretion of
the Board, to protect the Common Areas or Limited Common Areas, or to preserve the
appearance or value of the Property, or is otherwise in the interest of the general welfare
of the Owners, the Board shall have the power to undertake such maintenance or repair,
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and the cost of any such maintenance or repair together with a reasonable service charge
shall be assessed against the Condominium Unit on which such maintenance or repair is
performed and, when so assessed, a statement for the amount thereof shall be rendered
promptly to the then Owner of the Condominium Unit at which time the Assessment shall
become due and payable and a continuing lien and obligation of said Owner in all respects
as provided in Article V of the Bylaws.
(c) Appurtenant Maintenance. Each Owner shall be responsible for repair and
maintenance (but not the replacement, which shall be undertaken by the Association) of
interior and exterior surfaces of the doors, screens and windows which are part of such
Owner’s Condominium Unit, interior and exterior grouting and/or caulking and all other
accessories appurtenant to the Condominium Unit or belonging to the Owner thereof. In
the event that the maintenance or repair of any Condominium Unit or any Limited Common
Area exclusively serving Condominium Unit is reasonably necessary, in the discretion of
the Board, to protect the Common Areas or Limited Common Areas, or to preserve the
appearance or value of the Property, or is otherwise in the interest of the general welfare
of the Owners, the Board shall have the power to undertake such maintenance or repair,
but no such maintenance or repair shall be undertaken without a resolution by the Board
and reasonable written notice to the Owner of the Condominium Unit proposed to be
maintained. The cost of any such maintenance or repair shall be assessed against the
Condominium Unit on which such maintenance or repair is performed and when so
assessed a statement for the amount thereof shall be rendered promptly to the then Owner
of the Condominium Unit at which time the Assessment shall become due and payable and
a continuing lien and obligation of said Owner in all respects as provided in Article V of
the Bylaws.
(d) Certain Limited Common Areas. Each Owner shall, at its own expense, be
responsible for the replacement of the air conditioning compressor installed to service such
Owner’s Condominium Unit, for the decoration and general maintenance of any balcony,
patio, deck, landscape area, garage or porch to which there is direct access from the interior
of such Condominium Unit and which exclusively serves the same. Any balcony, patio,
deck, or porch shall be kept free and clear of snow, ice and any other accumulation over an
amount equal to six inches by the Owner of such Condominium Unit. The Owner of a
Condominium Unit served by such Limited Common Areas shall also make all repairs
thereto caused or permitted by his negligence, misuse or neglect. All other repairs or
replacements in, to or with respect to such balcony, patio, deck, landscaped area or porch
shall be made by the Association and the cost thereof shall be a Common Expense.
Notwithstanding anything herein to the contrary, all resurfacing, restriping, and other
repairs or replacements to the Parking Spaces shall be made by the Association and the
cost thereof shall be a Common Expense.
(e) Common Areas and Limited Common Areas. Except as otherwise provided
herein, all maintenance, repairs and replacements to the Common Areas (except as
otherwise provided in this Declaration, a Supplemental Declaration, or the Bylaws) shall
be furnished by the Association as part of the Common Expenses. Each Owner shall at its
own expense, be responsible for the maintenance, repair and replacement of the Common
Areas where such repair is the result of willful or negligent misuse by the Owner of its
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Condominium Unit, Limited Common Areas or the Common Areas; at the option of the
Board, the Association shall be entitled to control and coordinate such maintenance, repairs
and replacement or to undertake the same on the Owner’s behalf. In the discretion of the
Board, to protect the Common Areas or Limited Common Areas, or to preserve the
appearance or value of the Property, or is otherwise in the interest of the general welfare
of the Owner, the Board shall have the power to undertake such maintenance or repair and
the cost of any such maintenance or repair together with a reasonable service charge shall
be assessed against the Condominium Unit which is the cause of the need for repairs and,
when so assessed, a statement for the amount thereof shall be rendered promptly to the then
Owner of the Condominium Unit at which time the Assessment shall become due and
payable and a continuing lien and obligation of said Owner in all respects as provided in
Article V of the Bylaws in the event: (i) the Board elects to undertake such maintenance,
repairs or replacements on behalf of such Owner; (ii) such maintenance, repairs or
replacements are carried out by Owner as the result of willful or negligent misuse by the
Owner but such repairs are not carried out to a good an workmanlike standard to the
reasonable satisfaction of the Association, or (iii) Owner fails in such circumstances to
carry out repairs for which Owner is responsible. The Board of Directors may adopt rules
and regulations concerning maintenance, repairs, use and enjoyment of the Common Areas
and Limited Common Areas.
(f) Right of Entry. The Board of Directors, the Managing Agent, as hereinafter
defined, or any other Person authorized by the Board or the Managing Agent shall have the
right, at reasonable times and upon reasonable prior notice (except in cases of emergency
in which event no notice shall be required), to enter into each individual Condominium
Unit for the purposes of inspection of the Common Areas and Limited Common Areas
appurtenant thereto and replacement, repair and maintenance of the same.
14. Alterations, Additions and Improvements. Except as may be otherwise provided in
the Declaration or Bylaws, no Owner shall make any alterations or additions to any Common Areas
or Limited Common Areas without the prior written approval of the Board of Directors, nor shall
any Owner make any alterations to the Owner’s respective Condominium Unit and within the
boundaries of the Owner’s Condominium Unit which would affect the safety or structural integrity
of the Building in which the Condominium Unit is located. Declarant reserves the right to change
the interior design and arrangement of all Condominium Units and alter the boundaries between
Condominium Units so long as Declarant owns the Condominium Units so altered. No such
change shall increase the number of Condominium Units. If Declarant shall make any changes in
the Condominium Units so authorized, such changes shall be reflected by a supplement to the
Plans executed by the Declarant and recorded in the Office of the Recorder of Marion County,
Indiana, if necessary. Such supplement to the Plans need not be approved by the Association or
any other Owners.
15. Insurance. The Owners, through the Association, shall purchase a master casualty
insurance policy affording fire and extended coverage insurance insuring the Property in an
amount consonant with the full replacement value of the improvements which, in whole or in part,
comprise the Common Areas. If the Board of Directors can obtain such coverage for reasonable
amounts, they shall also obtain “all risk” coverage. The Board of Directors shall be responsible
for reviewing at least annually the amount and type of such insurance and shall purchase such
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additional insurance as is necessary to provide the type of insurance required above. If deemed
advisable by the Board of Directors, the Board of Directors may cause such full replacement value
to be determined by a qualified appraiser. The cost of any such appraisal shall be a Common
Expense. Such insurance coverage shall be for the benefit of each Owner and, if applicable, the
Mortgagee of each Owner upon the following terms and conditions:
(a) All proceeds payable as a result of casualty losses sustained which are
covered by insurance purchased by the Association shall be paid to the Association or to
the Board of Directors, who shall act as the Insurance Trustees and hold such proceeds for
the benefit of the insured parties;
(b) The sole duty of the insurance trustee shall be to receive such proceeds as
are paid and to hold the same in trust for the purposes elsewhere stated in this Declaration,
and for the benefit of the Owners and their respective Mortgagees;
(c) The proceeds shall be used or disbursed by the Association or Board of
Directors, as appropriate, only in accordance with the provisions of this Declaration. The
interest of each damaged Owner in the trust fund of insurance proceeds shall be the ratio
of the direct damage of each damaged Owner to the damages of all Owners directly
damaged by an event insured under the said master casualty insurance policy. Such master
casualty insurance policy, and “all risk” coverage, if obtained, shall (to the extent the same
are obtainable) contain provisions that the insurer (i) waives its right to subrogation as to
any claim against the Association, the Board of Directors, its agents and employees,
Owners, their respective agents, and guests, and (ii) waives any defense based on the
invalidity arising from the acts of the insured, and providing further, if the Board of
Directors is able to obtain such insurance upon reasonable terms, (1) that the insurer shall
not be entitled to contribution against casualty insurance which may be purchased by
individual Owners as permitted in this Declaration, and (2) that notwithstanding any
provision in this Declaration giving the insurer an election to restore damage in lieu of a
cash settlement, such option shall not be exercisable in the event the Owners do not elect
to restore pursuant to Paragraph 16 of this Declaration;
(d) The Owners, through the Association, shall also purchase a master
comprehensive public liability insurance policy in such an amount or amounts as the Board
of Directors shall deem appropriate from time to time. Such comprehensive public liability
insurance policy shall cover the Association, the Board of Directors, any committee or
organization of the Association or Board of Directors, any Managing Agent appointed or
employed by the Association. All persons acting or who may come to act as agents or
employees of any of the foregoing with respect to all Owners of Condominium Units and
all other persons entitled to occupy any Condominium Unit or other portions of the Owners,
through the Association, shall also obtain any other insurance required by law to be
maintained, including but not limited to workers’ compensation insurance, and such other
insurance as the Board of Directors shall from time to time deem necessary, advisable or
appropriate, including but not limited to, liability insurance on vehicles owned by the
Association and officers’ and directors’ liability policies. Such insurance coverage shall
also provide for and cover cross liability claims of one insured party against another insured
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party. Such insurance shall insure to the benefit of each Owner, the Association, the Board
of Directors, and any Managing Agent acting on behalf of the Association;
(e) Each Owner shall be deemed to have delegated to the Board of Directors
his right to adjust with the insurance companies all losses under policies purchased by the
Board of Directors;
(f) The premiums for all such insurance described above shall be paid by the
Association as part of the Common Expenses;
(g) When any such policy of insurance described above has been obtained by
or on behalf of the Association, written notice of the obtainment of such policy, and of any
subsequent changes of termination of such policy, shall be promptly furnished to each
Owner or Mortgagee whose interest may be affected, which notice shall be furnished by
the officer of the Association who is required to send notices of meetings of the
Association;
(h) In no event shall any distribution of proceeds be made by the Board of
Directors directly to an Owner where there is a mortgagee endorsement on the certificate
of insurance. In such event, any remittances shall be to the Owner and the Owner’s
Mortgagee jointly;
(i) Each Owner shall be solely responsible for and may obtain such additional
insurance as the Owner deems necessary or desirable at the Owner’s own expense affording
coverage upon the personal property, the contents of the Owner’s Condominium Unit
(including but not limited to, all floor, ceiling and wall coverings and fixtures, betterments,
and improvements installed by the Owner) and the Owner’s personal property stored
elsewhere on the property, and for the Owner’s personal liability, but all such insurance
shall contain the same provisions for waiver of subrogation as referred to in the foregoing
provisions for the master casualty insurance policy to be obtained by the Association;
(j) Each Condominium Owner may obtain casualty insurance at the Owner’s
own expense upon the Owner’s Condominium Unit, but such insurance shall provide that
it shall be without contribution as against the casualty insurance purchased by the
Association;
(k) If a casualty loss is sustained and there is a reduction in the amount of the
proceeds which would otherwise be payable on the insurance purchased by the Association
pursuant to this paragraph due to pro-ration of insurance purchased by an Owner under this
paragraph, the Owner agrees to assign the proceeds of this latter insurance, to the extent of
the amount of such reduction, to the Association to be distributed as provided in this
Declaration.
16. Casualty and Restoration. [SUBJECT TO FURTHER FANNIE REVIEW/INPUT]
(a) Obligation to Restore. Except as hereinafter provided, damage to or
destruction of a Building due to fire or other casualty or disaster shall be promptly repaired
and reconstructed by the Association and the proceeds of insurance, if any, shall be applied
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for that purpose; provided, however, that repair and reconstruction shall not be compulsory
in the event of “complete destruction of all of the Building(s)” (hereinafter defined) and
shall only be done in accordance with the provisions hereinafter set forth.
(b) Complete Destruction. The term “complete destruction of all of the
Building(s)” means a determination made by (i) a vote of sixty-seven percent (67%) of all
Owners at a special meeting of the Association called for the purpose of making such
determination, that complete destruction of all of the Buildings has occurred; or (ii) a vote
of _________ (____%) percent of all Owners in the affected Building(s) at a special
meeting of the Association called for the purpose of making such determination that
completion destruction of the applicable Building(s) has occurred. A special meeting of
the Association shall be called and held within ninety (90) days after any fire or any other
casualty or disaster damaging or destroying any of the Buildings for the purpose of making
the determination of whether or not there has been a complete destruction of the
Building(s). If such a special meeting is not called and held within such ninety (90) day
period, or if such determination by the Owners has not been made within such ninety (90)
day period, then it shall be conclusively presumed that the Owners determined that there
was not a complete destruction of the affected Building(s), and the Association shall
proceed with repair and construction as herein provided.
(c) Substantial Damage or Destruction. In the event of substantial damage or
destruction of any Condominium Unit or any part of the Common Areas, the affected
Mortgagee or Mortgagees shall be given timely written notice of such damage or
destruction and, notwithstanding any other provision of the Declaration or Bylaws, the
Property shall not be removed from the Act without the approval of a Majority of the
Mortgagees of the impacted Units.
(d) Insufficient Insurance Proceeds. If the insurance proceeds, if any, 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, and if the Property is not removed from the Act, the cost for restoring
the damage and repairing and reconstructing the Building(s) (or the costs in excess of
insurance proceeds received, if any) shall be paid by all of the Owners of Condominium
Units in proportion to the ratio that the Percentage Interest of each Condominium Unit
bears to the total Percentage Interest of all Condominium Units. Any such amounts payable
by the Owners shall be assessed as part of the Common Expenses, and shall constitute a
lien from time of assessment as provided herein and in the Act.
(e) Repair and Reconstruction. For purposes of subparagraphs (a), (b), and (d)
above, repair, reconstruction and restoration shall mean construction or rebuilding of the
Units to as near as possible the same condition as they existed immediately prior to the
damage or destruction and with the same type of architecture.
(f) Determination to Repair. If, under subparagraph (b) above, it is determined
by the Owners at the special meeting of the Association that there has been a complete
destruction of one or more of the Buildings, the Owners (or the impacted Owners, as
applicable) shall, at the same special meeting, vote to determine whether or not such
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complete destruction of the affected Building(s) shall be repaired and reconstructed. The
affected Building(s) shall not be reconstructed or repaired unless the Owners (or impacted
Owners, as applicable) at said special meeting by a vote of sixty-seven percent (67%) of
all of the Owners determine to repair and reconstruct the Buildings. If sixty-seven percent
(67%) of all of the Owners (by Percentage Vote) decide that the affected Building(s) are to
be rebuilt, reconstructed, and repaired, the insurance proceeds, if any, received by the
Association shall be applied and any excess of construction costs over insurance proceeds,
if any, received by the Association shall be contributed and paid as provided in
subparagraphs (a) and (b) above. The action of the Owners or the Board of Directors in
proceeding to repair or reconstruct damage shall not constitute a waiver of any rights
against any Owner for committing willful or malicious damage.
(g) No Repair; Removal from the Act. If, in any case of the complete
destruction of one or more of the Buildings, less than sixty-seven percent (67%) of all of
the Owners (by Percentage Vote) decide in favor of the rebuilding, reconstruction, and
repair of such Building(s), the Building(s) shall not be rebuilt, reconstructed or repaired,
and in such event, the Property shall be deemed and considered as to be removed from the
provision of the Act and in accordance with the Act:
(i) The Property shall be deemed to be owned in common by the
Owners;
(ii) The undivided interest in the Property owned in common which
shall appertain to each Owner shall be the percentage of undivided interest
previously owned by such Owner in the Common Areas;
(iii) Any liens affecting any of the Condominium Units shall be deemed
to be transferred in accordance with the existing priorities to the percentage of the
undivided interest of the Owner in the Property; and
(iv) The Property shall be subject to an action for partition at the suit of
any Owner, in which event the net proceeds of sale, together with the net proceeds
of the insurance on the Property, if any, shall be considered as one (1) fund and
shall be divided among all the Owners in a percentage equal to the percentage of
undivided interest owned by each Owner in the Property, after first paying out of
the respective shares of the Owners, to the extent sufficient for the purpose, all liens
on the undivided interest in the Property owned by each Owner.
(h) Cost Estimates for Repair. Immediately after a fire or other casualty causing
damage to any property for which the Board of Directors or the Association has the
responsibility of maintenance and repair, the Board of Directors shall obtain reliable and
detailed estimates of the cost to place the damaged property in condition as good as that
before the casualty. Such costs may include professional fees and premiums for such bonds
as the Board of Directors desire.
(i) Construction Fund. The proceeds of insurance collected on account of any
such casualty, and the sums received by the Board of Directors from collections of
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assessments against Owners on account of such casualty, shall constitute a construction
fund which shall be disbursed, if the Building is to be reconstructed and repaired, in
payment of the costs of reconstruction and repair in the following manner:
(i) If the amount of the estimated cost of reconstruction and repair is
less than Fifty Thousand Dollars ($50,000.00), then the construction fund shall be
disbursed in payment of such costs upon order of the Board of Directors; provided,
however, that upon request of a Mortgagee which is a beneficiary of an insurance
policy, the proceeds of which are included in the construction fund, such fund shall
be disbursed in the manner provided in the following paragraph (ii)
(ii) If the estimated cost of reconstruction and repair of any Building, or
other improvements, is more than Fifty Thousand Dollars ($50,000.00), then the
construction fund shall be disbursed in progress payments of such costs upon
approval of an architect qualified to practice in Indiana and employed by the Board
of Directors to supervise such work, as the work progresses. The architect shall be
required to furnish a certificate giving a brief description of the services and
materials furnished by various contractors, sub-contractors, materialmen, the
architect, or other persons who have rendered services or furnished materials in
connection with the work, (1) that the sums requested by them in payment are justly
due and owing and that said sums do not exceed the value of the services and
materials furnished; (2) that there is no other outstanding indebtedness known for
the services and materials described; and (3) that the costs as estimated by said
architect for the work remaining to be done subsequent to the date of such
certificate, does not exceed the amount of construction fund remaining after
payment of the sum requested.
(iii) Encroachments upon or in favor of Condominium Units which may
be created as a result of such reconstruction or repair shall not constitute a claim or
basis of a proceeding or action by the Owner upon whose property such
encroachment exists, provided that such reconstruction was either substantially in
accordance with the plans and specifications for the reconstruction or repair. Such
encroachments shall be allowed to continue in existence for so long as the Building
stands.
(iv) In the event that there is any surplus of monies in the construction
fund after the reconstruction or repair of the damage has been fully completed and
all costs paid, such sums may be retained by the Board of Directors as a reserve or
may be used in the maintenance and operation of the Common Areas, or, in the
discretion of the Board of Directors, it may be distributed to the Owners in the
buildings affected and their Mortgagees who are the beneficial owners of the fund.
17. Covenants and Restrictions. The covenants and restrictions applicable to the use
and enjoyment of the Condominium Units are set forth in the Bylaws. These covenants and
restrictions are for the mutual benefit and protection of the present and future Owners and shall
run with the Real Estate and insure to the benefit of and be enforceable by any Owner, the Owners
or by the Association. Present or future Owners shall be Members of the Association and shall be
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entitled to injunctive relief against any violation of these provisions and shall be entitled to
damages for any injuries resulting from any violations of the Bylaws, but there shall be no right of
reservation or forfeiture of title resulting from such violation.
18. Amendment of Declaration. Except as otherwise provided in this Declaration,
amendments to the Declaration shall be proposed and adopted in the following manner:
(a) Notice. Notice of the subject matter of the proposed amendment shall be
included in the notice of any meeting at which the proposed amendment is considered.
(b) Resolution. A resolution to adopt a proposed amendment may be proposed
by the Board of Directors or by Owner(s) having a majority of the Percentage Vote.
(c) Meeting. The resolution concerning a proposed amendment must be
adopted by the designated vote at a meeting duly called and held in accordance with, the
provisions of the Bylaws.
(d) Adoption. Subject to the provisions of the Bylaws and the rights of
Declarant described therein, any proposed amendment to this Declaration must be
approved by a vote of not less than seventy-five percent (75%) in the aggregate of the
Percentage Vote. In the event any Unit is subject to a first mortgage, the Mortgagee shall
be notified of the meeting and the proposed amendment in the same manner as an Owner
if the Mortgagee has given prior notice of its mortgage interest to the Board of Directors
in accordance with the provision of the Bylaws.
(e) Special Amendments. Subject to the rights reserved to Declarant in this
Declaration and except as otherwise provided in the Act, no amendment to this Declaration
shall be adopted which changes (i) the Percentage Interest with respect to any
Condominium Unit or the applicable share of any Owner’s liability for Common Expenses
or rights in any Limited Areas, without the approval of one hundred percent (100%) of the
affected Owners and all affected Mortgagees whose mortgage interests have been made
known to the Board of Directors in accordance with the provisions of the Bylaws; or (ii)
the provisions of Paragraph 16 of this Declaration with respect to reconstruction or repair
in the event of fire or any other casualty or disaster, without the approval of all Mortgagees
whose mortgage interest have been made known to the Board of Directors in accordance
with the provisions of the Bylaws.
(f) Recording. Each amendment to the Declaration shall be executed by either
the duly authorized representative of the Declarant or (if applicable) the President and
Secretary of the Association, and recorded in the Office of the Recorder of Marion County,
Indiana, and such amendment shall not become effective until so recorded.
(g) Amendments by Declarant Only. Notwithstanding the foregoing or
anything elsewhere contained herein, the Declarant shall have the right acting alone and
without the consent or approval of the Owners, the Association, the Board of Directors,
any Mortgagees or any other person at any time prior to the Applicable Date to amend,
modify, change, alter or supplement this Declaration from time to time if (i) such
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amendment or supplement is necessary to conform this Declaration to the Act, as amended
from time to time; or (ii) such amendment is necessary to comply with requirements of the
Federal National Mortgage Association, the Government National Mortgage Association,
the Federal Home Loan Mortgage Corporation, the Department of Housing & Urban
Development, the Federal Housing Association, the Veteran’s Administration or any other
governmental agency or any other public, quasi-public or private entity which performs (or
may in the future perform) functions similar to those currently performed by such entities;
or (iii) such amendment is necessary to correct clerical or typographical errors or to clarify
Declarant’s original intent; or (iv) such amendment is necessary to implement any changes
in the Condominium permitted to be made by Declarant under this Declaration.
(h) Special Requirements. Notwithstanding anything to the contrary contained
herein, unless specifically controlled by a more restrictive provision under Indiana law or
contained herein, the Association shall not, without prior written notice to all Mortgagees
and the prior written consent of at least sixty-seven percent (67%) of the Mortgagees (based
upon one vote for each mortgage held on a Condominium Unit) and of the Owners (other
than Declarant) be entitled to:
(i) by act or omission, seek to abandon or terminate the Property from
the Act;
(ii) change the pro rata interest or obligations of any individual
Condominium Unit for the purpose of (1) levying assessments or charges or
allocating distributions of hazard insurance proceeds or condemnation awards, or
(2) determining the pro rata share of ownership of each Condominium Unit in the
Common Areas except for expansion rights;
(iii) partition or subdivide any Condominium Unit;
(iv) by act or omission, seek to abandon, partition, subdivide, encumber,
sell or transfer the Common Areas (the granting of easements for public utilities or
for other public purposes consistent with the intended use of the Common Areas
shall not be deemed a transfer within the meaning of this clause); or
(v) use hazard insurance proceeds for losses to any part of the Property
(whether to Condominium Units or to Common Areas) for other than the repair,
replacement or reconstruction of such Property, except as provided in Paragraph 16
of this Declaration in case of substantial damage to the Condominium Units.
19. Acceptance and Ratification. All present and future Owners, Mortgagees, tenants,
and occupants of the Condominium Units shall be subject to and shall comply with the provisions
of this Declaration, the Act, the Bylaws, and the Rules and Regulations as adopted by the Board
of Directors as each may be amended or supplemented from time to time. The acceptance of a
contract to purchase, deed of conveyance or act of occupancy of any Condominium Unit shall
constitute an agreement that the provisions of this Declaration, the Act, the Bylaws, and Rules and
Regulations and as each may be amended or supplemented from time to time are accepted and
ratified by such purchaser, Owner, tenant, or occupant, and all such provisions shall be covenants
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running with the land and shall bind any person having at any time any interest or estate in a
Condominium Unit or the Property as though such provisions were recited and stipulated at length
in each and every deed, conveyance, mortgage, or lease. All persons, corporations, partnerships,
trust, associations, or other legal entitles who may occupy, use, enjoy, or control a Condominium
Unit or Units or any part of the Property in any manner shall be subject to the applicable
Declaration, the Act, the Bylaws, and the Rules and Regulations as each may be amended or
supplemented from time to time. If any Owner, tenant, occupant or partnership or entity who may
occupy, use, enjoy or control a Condominium Unit or Units or any part of the Property in any
manner, are comprised of more than one individual, the liability and obligations of each such
Owner, tenant, occupant, partnership or entity shall be joint and several.
20. Negligence. Each Owner shall be liable for the expense of any maintenance, repair
or replacement rendered necessary by the Owners negligence or by that of any member of the
Owner’s family or guests, employees, agents, or lessees, (including but not limited to damage
caused by an pet or automobile) 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
premiums occasioned by the Owner’s use, misuse, occupancy or abandonment, of his
Condominium Unit or its appurtenances or of the Common Areas or Limited Common Areas.
21. Granting of Easements. The Board of Directors is granted the authority to grant
easements to utility companies (excluding transportation companies but including cable TV
companies) upon such terms and conditions and for such consideration as it deems appropriate.
[ADDITIONAL EASEMENTS NEEDED FOR SHARED AMENITIES WITH
APARTMENTS?].
22. Reservation of Rights to the Use of the Common Areas.
(a) If, at any time, and from time to time, any portion of the Real Estate has not
been subjected and submitted to this Declaration or to the Act by an amendment or
supplement to this Declaration and the owner or owners of such portion or portions of the
Real Estate not so subjected to the Declaration or to the Act develop single or multi-family
dwelling units on such portions, then the owner or owners of such portions of the Real
Estate shall have the benefit of the Common Areas or portion thereof, to include the roads,
the Recreational Facilities and associated facilities, for the use of the persons and families
living in such dwelling units upon the same terms and conditions as the use of such
Common Areas by the owners of the Condominium Units, their families and guests. The
owner or owners of such portions of the Real Estate shall then pay for the use of such
facilities based on the cost of operation and maintenance of such facilities for the year of
such usage and based on the number of living units so entitled to utilize such facilities in
proportion to all of the living units on the Real Estate. The owner or owners of such living
units shall make payments for the usage provided herein to the Association at the same
time as the Owners of the Condominium Units pay their assessments to the Association.
(b) Declarant shall have, and hereby reserves, an easement over, across, upon,
along, in through an under the Common Areas and, to the extent necessary, the Limited
Common Areas, for the purposes of installing, maintaining, repairing, replacing, relocating
and otherwise servicing utility equipment facilities and installations to serve the Property
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and any portions of the Real Estate which are not part of the Property, to provide access to
and ingress and egress to and from the Property and to any such portions of the Real Estate
which are not part of the Property, to make improvements to and within the Property an
any such portions of the Real Estate which are not part of the Property, and to provide for
the rendering of public and quasi-public services to the Property and such portions of the
Real Estate which are not part of the Property.
(c) Declarant reserves the right to use any of the Real Estate that is not annexed
to or made subject to the Declaration for any permitted purposes.
23. Easement for Utilities and Public and Quasi-Public Vehicles. All public and quasi-
public vehicles, including but not limited to police, fire and other emergency vehicles, trash and
garbage collection, post office vehicles, and privately owned delivery and maintenance vehicles,
shall have the right to enter upon the streets, Common Areas, and Limited Common Areas in the
performance of their duties and services. An easement is also granted to all utilities and their
agents for ingress, egress, installation, replacement, repairing, maintaining of such utilities,
including but not limited to water, sewer, gas telephones, cable television and communications,
and electricity on the Property; provided, however, nothing in this Declaration shall permit the
installation of sewers, electric lines, water lines, telephone lines, cable television lines, or other
utilities, except as contemplated by the Plans or as subsequently may be approved by the Board of
Directors. By virtue of this easement, the electric and telephone utilities are expressly permitted
to erect and maintain the necessary equipment on the property and to affix and maintain electric
and telephone wires, circuits, and conduits on, above, across, and under the roofs and exterior walls
of the Building.
24. Initial Management. As set forth in the Bylaws, the Initial Board of Directors
consists and will consist of persons selected by the Declarant. Such Board of Directors may enter
into a management agreement with Declarant (or a corporation or other entity affiliated with
Declarant) or a third party under which the management company will provide supervision, fiscal
and general management and maintenance of the Common Areas and, to the extent the same is not
otherwise the responsibility of Owners of individual Condominium Units, the Limited Common
Areas, and in general, perform all of the duties and obligations of the Association.
Notwithstanding anything to the contrary contained herein, prior to the Applicable Date, Declarant
shall have, and Declarant hereby reserves to itself (either through a management company or
otherwise), the exclusive right to manage the Property and to perform all the functions of the
Corporation.
25. Costs and Attorneys’ Fees. In any proceeding arising because of failure of an
Owner to make any payments, take any action, or refrain from taking any action required by this
Declaration, the Bylaws, or the Rules and Regulations adopted pursuant to the Bylaws, as each
may be amended from time to time, the Association shall be entitled to recover its costs and
reasonable attorneys’ fees incurred in connection with such default or failure.
26. Severability. The invalidity of any covenant, restriction, condition, limitation or
other provisions of this Declaration or the Bylaws shall not impair or affect in any manner the
validity, enforceability, or effect of the rest of this Declaration or the Bylaws.
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27. Enforcement. The provisions of this Declaration, the Bylaws, the Articles of
Incorporation, or the Act may be enforced by the Association or by any aggrieved Owner through
court proceedings for injunctive relief, for damages or for both.
28. Pronouns. Any reference to the masculine, feminine, or neuter gender shall, unless
the context clearly requires the contrary, be deemed to refer to and include the masculine, feminine,
and neuter genders. Words in the singular shall include and refer to the plural, and vice versa, as
appropriate.
29. Floor Plans. The Plans setting forth the layout, location, identification numbers,
and dimensions of the Condominium Units and the Property are incorporated into this Declaration
by reference and have been filed in the Office of the Recorder of Hamilton County, Indiana as
Instrument No. ______________________.
30. Environmental Restrictive Covenants. The Owners, the Board of Directors, and
the Association shall at all times comply with the terms and conditions of: (i) that certain
Environmental Restrictive Covenant dated January 20, 2020 and recorded February 28, 2020, as
Instrument No. 2020010482 in the Office of the Recorder of Hamilton County, Indiana; (ii) that
certain Environmental Restrictive Covenant dated January 20, 2020 and recorded February 28,
2020, as Instrument No. 2020010483 in the Office of the Recorder of Hamilton County, Indiana;
and (iii) that certain Environmental Restrictive Covenant dated January 20, 2020 and recorded
February 28, 2020, as Instrument No. 2020010484 in the Office of the Recorder of Hamilton
County, Indiana, to the extent the same may apply to the Property.
[THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the undersigned Declarant has caused this Declaration to be
executed as of the day and year first above written.
DECLARANT:
[INSERT SIGNATURE BLOCK]
STATE OF INDIANA )
) SS:
COUNTY OF HAMILTON )
Before me, a Notary Public in and for such County and State, personally appeared
______________________, the of __________________, who, after having been duly sworn,
acknowledged the execution of the foregoing Declaration for and on behalf of such limited liability
company.
WITNESS, my hand and Notarial Seal this ______ day of _____________, 2021.
__________________________________________
( ) Notary Public
Commission Expires:_________________ County of Residence: _________________
This instrument prepared by Samantha R. Hargitt, Attorney at Law, Wooden & McLaughlin
LLP, One Indiana Square, Suite 1800, Indianapolis, Indiana 46204.
I affirm, under the penalties for perjury, that I have taken reasonable care to redact each Social
Security Number in this document, unless required by law. [Samantha R. Hargitt]
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EXHIBIT A
Real Estate
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EXHIBIT B
Depiction of Property
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28
EXHIBIT C
Percentage Interests
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29
EXHIBIT D
Code of Bylaws
[See attached.]
3004067-3 (13903-0003)
06/15/21