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MASTER DECLARATION OF COVENANTS
AND RESTRICTIONS OF
MELANGE CARMEL
This Master Declaration of Covenants and Restrictions of Melange Carmel (the
“Declaration”), is made as of the ____ day of _____________, 2021, by OE VETERANS WAY,
LLC, an Indiana limited liability company (“Master Developer”), and;
WITNESSETH:
WHEREAS, Master Developer is the Owner of certain real estate located in Hamilton
County, Indiana, and more particularly described in what is attached hereto and incorporated herein
by reference as Exhibit “A” (the “Real Estate”);
WHEREAS, the real estate located in Hamilton County and depicted in what is attached
hereto and incorporated herein by reference as Exhibit “B”, shall mean and be referred to
throughout this Declaration as the “Additional Real Estate”;
WHEREAS, the word “Property” as used throughout this Declaration shall mean and refer
to the Real Estate together with such portions of the Additional Real Estate as may be made subject
to this Declaration per the terms of Section 3 below;
WHEREAS, Master Developer and the City of Carmel Redevelopment Commission
(“CRC”) entered into a certain Project Agreement dated July 27, 2020 (as amended, the “Project
Agreement”), pursuant to which Master Developer has agreed to develop upon the Property a
townhome and condominium community to be known as Melange, generally in accordance with
the Development Plan attached hereto and incorporated herein as Exhibit “D”;
WHEREAS, CRC and Master Developer desire that Master Developer provide for the
preservation and enhancement of the property values, amenities and opportunities in Melange and
for the maintenance of the Property and the improvements thereon, and to this end desire to subject
the Property to the covenants, restrictions, easements, charges and liens hereinafter set forth, each
of which is for the benefit of the Lots and lands in the Property and the future Owners and
Occupants thereof;
WHEREAS, Master Developer deems it desirable, for the efficient preservation of the
values and amenities in Melange, to create agencies, including Supplemental Associations, to
which may be delegated and assigned by Master Developer the powers of owning, maintaining and
administering the Common Areas, administering and enforcing the Restrictions, collecting and
disbursing the General Assessments, Special Assessments and other changes and Assessments
hereinafter created, and promoting the health, safety, and welfare of the Owners and Occupants of
Lots and Units in Melange; and,
WHEREAS, Master Developer has incorporated under the laws of the State of Indiana a
nonprofit corporation known as Melange Master Association, Inc. (the “Master Association”), and
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may incorporate Supplemental Associations for the purpose of exercising the aforementioned
functions.
NOW, THEREFORE, Master Developer agrees that all of the Lots and lands in the
Property and such additions thereto as may hereafter be made pursuant to Section 3 hereof, as they
are held and shall be held, conveyed, hypothecated or encumbered, leased, rented, used, occupied
and improved, are subject to the following Restrictions, all of which are declared to be in
furtherance of a plan for the improvement and sale of Lots and Units in the Property, and are
established and agreed upon for the purpose of enhancing and protecting the value, desirability and
attractiveness of the Property as a whole and of each of the Units, Lots and lands situated therein.
The Restrictions shall run with the land and shall be binding upon Master Developer, all Owners
of Lots, Parcels and Units and their respective successors and assigns, and upon all other parties
having or acquiring any interest in the Property or any part or parts thereof, and shall inure to the
benefit of Master Developer and their respective successors in title to the Property or any part or
parts thereof.
Section 1. Definitions. Capitalized terms used in this Declaration shall have the meaning
given such terms in Exhibit “C” attached hereto and made a part hereof, unless the context clearly
requires otherwise.
Section 2. Declaration and Relation to Supplemental Declarations and Associations.
(A) Declaration. Master Developer hereby declares that the Property and
any additions thereto pursuant to Section 3 hereof shall be held, transferred, and
occupied subject to the Restrictions. The Owner of any Lot, Parcel or Unit subject
to the Restrictions, by (i) acceptance of a deed conveying title thereto, or the
execution of a contract for the purchase thereof, whether from Master Developer or
a subsequent Owner of such Lot, Parcel, or Unit, or (ii) by the act of occupancy of
any Lot, Parcel or Unit, shall accept such deed, execute such contract and/or take
such occupancy subject to each Restriction and agreement herein contained. By
acceptance of such deed or execution of such contract, each Owner acknowledges
the rights, powers and obligations of Master Developer and of the Corporation with
respect to the Restrictions as set forth in this Declaration, and also for itself, its heirs,
personal representatives, successors and assigns, covenants, agrees and consents to
and with Master Developer, the Corporation, and the Owners and subsequent Owners
of each of the Lots, Parcels and Units affected by the Restrictions to keep, observe,
comply with and perform such Restrictions and agreements.
(B) Relation to Supplemental Declarations. This Declaration is
intended primarily to address areas of common concern and benefit to all Owners in
Melange Carmel, but also establishes general Restrictions applicable to particular
Parcels. Except as expressly provided in such Supplemental Declaration (and where
necessary approved by Master Developer), in the event of a conflict between the
terms of this Declaration and a Supplemental Declaration, the terms of this
Declaration shall control; provided, however, that nothing in this Declaration shall
preclude any Supplemental Declaration from containing additional restrictions
applicable to any Parcel which are more restrictive than the provisions of this
Declaration and, in such case, the more restrictive shall control.
(C) Relation of Corporation to Supplemental Associations. The
Corporation shall have the power to veto any action taken or contemplated to be taken
by any Supplemental Association which the Corporate Board reasonably determines
to be adverse to the interests of the Corporation or a class of Owners. The
Corporation also shall have the power to require specific action to be taken by any
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Supplemental Association in connection with its express obligations and
responsibilities under a Supplemental Declaration, such as requiring specific
maintenance or repairs or aesthetic changes to be effectuated and requiring that a
proposed budget include certain items and that expenditures be made therefore. In
the event of the failure or unreasonable delay of a Supplemental Association to
enforce a Supplemental Declaration against the Owners subject thereto, the
Corporation may, but shall not be required to, do so, at the expense of such
Supplemental Association.
Section 3. Additions to and Withdrawals from the Property.
(A) Additions. As of the date of the execution of this Declaration the
Property comprises the Real Estate. Following the East Phase Closing (as such term
is defined in the Project Agreement), if any, Master Developer shall be entitled to
add to the Property the portion of the Additional Real Estate. The Additional Real
Estate added to the Property shall therefore and thereby become a part of the Property
and shall be subject in all respects to this Declaration and all rights, obligations, and
privileges herein, upon the Master Developer placing of record in Hamilton County,
Indiana an instrument so declaring the same to be part of the Property, which
instrument may be a Supplemental Declaration, a declaration of annexation contained
in a Plat, a statement in a Plat that the Lots and Common Areas therein are subject to
this Declaration or an amendment to this Declaration. Any such Supplemental
Declaration may contain modifications hereto and additional terms, conditions,
restrictions, maintenance obligations, and assessments as may be necessary to reflect
the different character, if any, of the Additional Real Estate.
Upon satisfying the requirements of the immediately preceding paragraph on
or before the Applicable Date, the real estate described therein shall, for all purposes,
thereafter be deemed a part of the Property and the Owners of any Lots within such
real estate shall be deemed for all purposes, to have and be subject to all of the rights,
duties, privileges, and obligations of Owners and Lots within the Property. The right
of Master Developer to annex the Additional Real Estate pursuant to this Section
3(A) shall terminate upon the termination of the Project Agreement.
(B) Withdrawals. So long as it has a right to annex Additional Real
Estate pursuant to Section 3(A), Master Developer may amend this Declaration for
the purpose of removing any portion of the Property, which has not yet been
improved with Structures, from the coverage of this Declaration; provided, however,
such removal shall require the prior written consent of CRC and the Owner(s) of the
property to be withdrawn. Such amendment shall not require the consent of any
Person other than CRC and the Owner(s) of the property to be withdrawn, if not the
Master Developer. If the property is General Common Area, the Corporation shall
consent to such withdrawal.
Section 4. Common Area. Subject to, and unless otherwise provided in this Declaration,
the Plat, or a Supplemental Declaration, the development, ownership and maintenance of any
Common Area shall be in accordance with the following and other applicable provisions of this
Declaration:
(A) Development of Common Area. Master Developer shall develop
Common Area in a manner generally consistent with the Plan of Development.
Master Developer shall not, subsequent to completion of the Public Improvements
within the Courtyard Lot, modify its size, location, configuration or type from that
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depicted on the Plan of Development without the prior written approval of CRC.
(B) Maintenance.
1. The Corporation shall be responsible for maintaining
any General Common Area and any General Common Facilities, and the
Maintenance Costs thereof shall be assessed as a General Assessment
against all Lots subject to Assessment; and
2. The Applicable Supplemental Association shall be
responsible for maintaining Limited Common Area located within its
Parcel and any Limited Common Facilities, and the Maintenance Costs
thereof shall be assessed as a Parcel Assessment pursuant to the
corresponding Supplemental Declaration.
(C) Title. Prior to the Applicable Date, Master Developer shall
convey title, by quitclaim deed, to any General Common Area to a Permitted
Title Holder. Prior to the applicable Parcel Applicable Date, Master Developer
shall convey title, by quitclaim deed, to any Limited Common Area within such
Parcel to a Permitted Title Holder.
Section 5. The Common Area Use and Improvement.
(A) Use and Improvements. Unless approved by the Master Developer,
in its discretion, or the Corporate Board, in its discretion, no permanent
improvements shall be made to or installed on any General Common Area or General
Common Facilities. The use of the Common Area which is General Common Area
shall be subject to rules, regulations, policies and procedures adopted by the
Corporate Board, in its discretion, which are not inconsistent with the provisions of
this Declaration. The use of the Common Area which is Limited Common Area
shall be subject to rules, regulations, policies and procedures adopted by the
Supplemental Board of the Applicable Supplemental Association, in its discretion,
which are not inconsistent with the provisions of this Declaration or the Applicable
Supplemental Declaration. The General Common Area(s) may be used by all
Owners and Occupants and their guests. Unless otherwise specified in this
Declaration or in a Supplemental Declaration, all Limited Common Areas may be
used by all Owners and Occupants and their guests.
Section 6. RESERVED
Section 7. The Courtyard Lot. Master Developer shall construct the Public Improvements
in the Courtyard Lot, and following completion thereof, the Public Improvements shall not be
materially altered without the prior written approval of CRC, which may be granted or withheld in
CRC’s sole discretion. The Master Developer hereby grants, reserves and conveys to all Owners
and Occupants and the CRC, a non-exclusive easement over, across, upon, along, in, through and
under the Courtyard Lot, for the benefit of the general public, for the purposes of accessing and
using for their intended purpose, the Public Improvements. The Master Developer or the
Corporation shall (i) establish reasonable, non-discriminatory rules with respect to access and use
of the Public Improvements; and (ii) shall maintain, repair, and/or replace the Public Improvements,
as reasonably necessary from time to time, as part of the General Common Area hereunder. Any
and all programming or scheduled use of the Public Improvements shall be controlled solely by the
Master Developer or the Corporation, as applicable.
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Section 8. Landscaping; Snow Removal; Trash Removal
(A) Landscaping. The following rules apply to the maintenance and
replacement of landscaping:
1. Landscaping located within any drive aisles that are part
of the General Common Area shall be maintained by the Corporation.
2. The foregoing notwithstanding, any landscaping which
is damaged or destroyed by the intentional or negligent act of a Person
shall be replaced by that Person.
(B) Snow Removal. Snow removal which is a Corporate Obligation
shall be undertaken at frequencies and depths determined by the Corporate Board in
its discretion.
(C) Trash Removal. Trash removal may, in the Master Developer’s
discretion, be the obligation of the Applicable Supplemental Association on terms
specified in a Supplemental Declaration.
Section 9. Change of Use of Common Area. A Permitted Title Holder shall not change
the use of any Common Area conveyed to the Permitted Title Holder by Master Developer from
the use being made thereof at the time of conveyance.
Section 10. Melange Master Association, Inc.
(A) Membership. The Corporation shall not have members.
(B) Powers. The Corporation shall have such powers as are set forth in
this Declaration and in the Corporate Articles and Corporate Bylaws, or designated
to it in a Supplemental Declaration, together with all other powers that belong to it
by law.
(C) Board of Directors. Prior to the Applicable Date, and as specified in
the Corporate Bylaws, (i) any and all members of the Corporate Board shall be
appointed by and serve at the pleasure of the Master Developer, (ii) any and all
members of the Corporate Board may be removed and replaced by the Master
Developer at any time and for any reason, and (iii) all vacancies in the Corporate
Board shall be filled by the Master Developer. After the Applicable Date, members
of the Corporate Board may be designated, appointed, or removed in the manner set
forth in the Corporate Bylaws.
(D) Maintenance Standards. In each instance in which this Declaration
imposes on the Corporation a maintenance obligation with respect to the General
Common Area or the General Common Facilities or a part thereof, the Corporation
shall maintain the General Common Area, General Common Facilities or designated
part thereof in good condition, order and repair substantially comparable to its
condition when originally constructed, installed or planted and compatible in
appearance and utility with a townhome and condominium community in the Carmel,
Indiana area. Grass, trees, shrubs and other plantings located on the General
Common Area for which the Corporation has maintenance responsibility may, in the
discretion of the Corporation’s Board, be irrigated and shall be kept properly and
neatly cut, cultivated or trimmed as reasonably required and otherwise maintained at
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all times in good and sightly condition appropriate to a townhome and condominium
community in Carmel, Indiana.
(E) Insurance, Taxes and Utilities. The Corporation shall maintain
public liability and casualty insurance in prudent amounts insuring against risk of
loss to the Corporation on account of injury to person or property and damage to
property owned by the Corporation, shall maintain errors and omissions insurance
insuring its officers and directors, and shall pay all taxes assessed against property
and all utility charges incurred with respect to General Common Area and General
Common Facilities.
(F) Limitations on Action by the Corporation. Unless at least sixty
percent (60%) of the Mortgagees (based on one vote for each first mortgage owned)
and fifty-one percent (51%) of the members of the Corporate Board have given their
prior written approval, a Permitted Title Holder, the Corporate Board and the Owners
may not: (i) except as authorized by Section 13(A) (but subject to the limitations of
Section 13(A), by act or omission seek to abandon, partition, subdivide, encumber,
sell or transfer the General Common Area (but the granting of easements for public
utilities or other public purposes consistent with the intended use of the General
Common Area shall not be deemed a transfer for the purposes of this clause); (ii) fail
to maintain fire and extended coverage insurance on insurable General Common
Area and General Common Facilities on a current replacement cost basis in the
amount of one hundred percent (100%) of the insurable value (based on current
replacement cost); (iii) use hazard insurance proceeds for losses to any General
Common Area or General Common Facilities for other than the repair, replacement
or reconstruction of the General Common Area or General Common Facilities.
(G) Mergers. Upon a merger or consolidation of another corporation
with the Corporation, its properties, rights and obligations may, as provided in its
Articles of Incorporation, by operation of law be transferred to another surviving or
consolidated corporation or, alternatively, the properties, rights and obligations of
another corporation may by operation of law be added to the properties, rights and
obligations of the Corporation as a surviving corporation pursuant to a merger. The
surviving or consolidated corporation may administer the covenants and restrictions
established by this Declaration within the Property together with the covenants and
restrictions established upon any other properties as one scheme. No merger or
consolidation, however, shall effect any revocation, change or addition to the
covenants established by this Declaration within the Property except as hereinafter
provided.
Section 11. Assessments.
(A) Creation of the Lien and Personal Obligation of Assessments. Each
Owner (other than Master Developer) of any Lot by acceptance of a deed thereto,
whether or not it shall be so expressed in such deed, is deemed to covenant and agree
to pay to the Corporation or to an applicable Supplemental Association responsible
for collection thereof: (i) General Assessments, (ii) Initial Assessments, (iii) Capital
Assessments and (iv) Special Assessments, such Assessments to be established and
collected as hereinafter provided.
All Assessments, together with interest thereon and costs of collection
thereof, shall be a charge on the land and shall be a continuing lien upon the Lot
against which each Assessment is made until paid in full. The Corporate Board, in
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its discretion, is hereby fully authorized to record with the Recorder of Hamilton
County a written instrument evidencing the lien, against the applicable Lot, for any
delinquent Assessments. Each Assessment, together with interest thereon and costs
of collection thereof, shall also be the personal obligation of the Person who was the
Owner of the Lot at the time when the Assessment became due. Notwithstanding the
foregoing, and, except as hereinafter provided, without limiting the personal
obligation of any such Person, the Corporate Board, in its discretion may, from time
to time, elect to require the collection of any Assessments of the Corporation by and
through a Supplemental Association, which shall then allocate the Assessments of
the Corporation to those Owners who are members of such Supplemental
Association, and such Supplemental Association, along with the owners within the
Supplemental Association’s Parcel, shall be personally liable therefore.
(B) General Assessment.
1. Purpose of Assessment. The General Assessment levied by
the Corporation shall be used exclusively to promote the health, safety,
and welfare of the Owners of Lots and Occupants of Units and to satisfy
the Corporate Obligations as determined by the Corporate Board. The
Corporate Board, in its discretion, from time to time may but shall not
be obligated to establish and maintain a reserve fund for replacements
by the allocation from the General Assessment and the payment to such
reserve fund of an amount determined annually by the Corporate Board,
in its discretion, to be sufficient to meet the cost of periodic significant
capital repairs, renewals and replacements of the General Common
Facilities. The Corporate Board shall determine the dates on and
frequencies with which the General Assessment shall be paid.
2. Basis for Assessment. At the Master Developer’s
discretion and election, each Lot in the Melange Townhomes and each
Unit in the Melange Condominiums (as each is defined below) shall
be assessed through their respective Supplemental Association,
provided that each Lot in Melange Townhomes and each Residential
Unit in the Melange Condominiums shall nonetheless be subject to the
liens therefore in the amount of the General Assessment allocable to
it. As of the date hereof, the area of Melange Carmel to be developed
for attached Residential Units is identified on the Plan of
Development, is part of the Property, and is legally described in what
is attached hereto and incorporated herein by reference as Exhibit “E”,
which may be expanded pursuant to the terms and conditions of the
applicable Supplemental Declaration (“Melange Townhomes”). As of
the date hereof, the general area of Melange Carmel to be developed
for the Condominium Building is identified on the Plan of
Development, is part of the Property and is legally described in what
is attached hereto and incorporated herein by reference as Exhibit “H”,
which may be expanded pursuant to the terms and conditions of the
applicable Supplemental Declaration (“Melange Condominiums”).
Except as provided in Section 11(B)(3) with respect to Lots owned by
the Master Developer, all Lots located within the Melange
Townhomes shall be assessed at a uniform rate without regard to
whether a Residential Unit and other improvements have been
constructed upon such Lot. As set forth in the Valuation Table, the
initial rate at which such Lots shall be assessed shall be $______ per
Lot per year. The General Assessment for each Lot or Condominium
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Unit subject to assessment in Melange Townhomes and Melange
Condominiums shall commence on the first day of the first month
following both (i) the recordation with the Recorder of Hamilton
County, Indiana, of a secondary Plat which includes such Lot and (ii)
the date on which the Master Developer conveys such Lot or
Condominium Unit.
(b)Change in Basis. The basis for Assessment specified in
the Valuation Table may be changed by a majority of the
Corporate Board, in its discretion, who are voting in person at a
meeting of the Corporate Board duly called for this purpose.
3. Allocation of General Assessment. Unless otherwise
expressly provided in this Declaration, the General Assessment shall be
allocated, in the discretion of the Corporate Board, among all Owners
(other than the Master Developer) in accordance with the applicable
Valuation Factor specified in the Valuation Table. Notwithstanding
anything in this Declaration to the contrary, with respect to Lots titled in
the name of the Master Developer, the Master Developer in the Master
Developer’s discretion, may elect on a year-to-year basis to pay either (i)
the General Assessment or (ii) the Corporation’s Annual Operating
Deficit.
(C) Reserved.
(D) Initial Assessment. Each Supplemental Association may impose
an Initial Assessment on each Residential Unit within the Melange Townhomes or
Melange Condominium, in accordance with the terms of the applicable Supplemental
Declaration.
(E) Real Estate Subsequently Annexed. As part or all of the
Additional Real Estate is annexed to the Property and made subject to this
Declaration per the terms of this Declaration, the Master Developer in its discretion
shall determine (i) the manner in which such Additional Real Estate shall be assessed
with the General Assessment and (ii) the amount of Initial Assessment to apply to
such Additional Real Estate. In determining the manner in which such Additional
Real Estate shall be so assessed, the Master Developer may consider any and all
factors deemed relevant by the Master Developer in its discretion.
(F) Capital Assessment. The Corporate Board, in its discretion, may
levy in any calendar year a Capital Assessment applicable to that year and in a
reasonable number of succeeding calendar years for the purpose of defraying, in
whole or in part, the cost of any construction, repair, or replacement of a capital
improvement upon the General Common Area, including fixtures and personal
property relating thereto or any General Common Facilities, provided that any such
Capital Assessment shall have the assent of a majority of the votes of the Owners
whose Lots are subject to Assessment with respect to the capital improvement who
are voting in person or by proxy at a meeting of Owners duly called for this purpose.
Any Capital Assessment pursuant to this Section 11(E) shall be allocated, based upon
the Valuation Table, among Lots subject thereto.
(G) Effect of Nonpayment of Assessments; Remedies of the
Corporation. Any Assessments not paid within thirty (30) days after the due date
may, upon resolution of the Corporate Board, bear interest from the due date at a
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percentage rate no greater than the current statutory maximum annual interest rate, to
be set by the Corporate Board for each Assessment year. The Corporation shall be
entitled to institute in any court of competent jurisdiction any lawful action to collect
a delinquent Assessment, to foreclose lien or such delinquent Assessments in the
same manner in which mortgages are foreclosed in the State of Indiana, and shall also
be entitled to collect plus any expenses or costs, including reasonable attorney’s fees
incurred by the Corporation in collecting such Assessment. If the Corporation has
provided for collection of any Assessment in installments, upon default in the
payment of any one or more installments, the Corporation may accelerate payment
and declare the entire balance of said Assessment due and payable in full. No Owner
may waive or otherwise escape liability for the Assessments provided for herein by
nonuse of the General Common Area or the General Common Facilities or
abandonment of a Lot.
(H) Subordination of the Lien to Mortgages. To the extent specified
herein, the lien of the Assessments provided for herein against a Lot shall be
subordinate to the lien of any recorded first mortgage covering such Lot and to any
valid tax or special assessment lien on such Lot in favor of any governmental taxing
or assessing authority. Sale or transfer of any Lot shall not affect the lien of any
Assessment. The sale or transfer of any Lot pursuant to mortgage foreclosure or any
proceeding in lieu thereof shall, however, extinguish the lien of such Assessments as
to payments which became due more than six (6) months prior to such sale or transfer.
No sale or transfer shall relieve such Lot from liability for any Assessments thereafter
becoming due or from the lien thereof.
(I) Certificates. The Corporation shall, upon demand in writing by an
Owner, at any time, furnish a certificate in writing signed by an officer of the
Corporation that the Assessments by the Corporation on a Lot have been paid or that
certain such Assessments remain unpaid, as the case may be.
(J) Corporation’s Annual Budget. By a majority vote of the Corporate
Directors, the Corporate Board in its discretion shall adopt the Corporation’s Annual
Budget for the subsequent calendar year, which shall provide for allocation of
expenses in such a manner that the Corporate Obligations will be met. The Corporate
Board may from time to time, in its discretion, include in the Corporation’s Annual
Budget a capital reserve in an amount sufficient to meet the projected need with
respect to both amount and timing of significant construction, repair or replacement
of the General Common Facilities.
(K) Special Assessments. Subject to limitations on increases and
maximum levels of the General Assessment specified above in this Section 11, in the
event the General Assessment for any calendar year after the Applicable Date is
inadequate to cover the costs incurred by the Corporation for the purposes set forth
in Section 11(B) hereof in such calendar year, the Corporate Board in its discretion
may levy upon all Owners, as a Special Assessment, an Assessment to cure such
inadequacy. Such Special Assessment shall be allocated among the Owners in the
same manner as the General Assessment is allocated among Owners.
(L) Violation Assessment. In addition to all other Assessments as be
authorized herein, the Corporate Board, in its discretion, may levy a Violation
Assessment against an Owner, (i) for a violation of this Declaration or (ii) for
damages if any portion of the Common Area that the Association is obligated to
maintain, repair and/or replace is damaged due to the willful or negligent act or
omission of such Owner or Owner’s guest or invitee. In the event of such damage,
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the Corporate Board shall have the right to undertake the necessary maintenance,
repair or replacement. The choice between repair or replacement is in the discretion
of the Corporate Board.
Section 12. Architectural Control. The Design Standards set forth, among other things,
the thematic design and architectural standards for the Property and may, from time to time, be
amended and revised by upon mutual agreement by Master Developer, in its discretion. The Design
Standards are not the exclusive basis for architectural approval, and compliance with the Design
Standards shall not guarantee architectural approval by the City of Carmel or any other applicable
governmental body. If Master Developer, or a Person acting for and on behalf of Master Developer
fails to materially comply with the Design Standards, then the CRC may provide Master Developer
with written notice stating with specificity how the Master Developer failed to materially comply
with the Design Standards. Master Developer will then have a period of thirty (30) days following
receipt of such written notice to correct such material violation of the Design Standards and provide
CRC with confirmation of the same; provided, however, if such material violation is of a nature
that it cannot reasonably be cured within thirty (30) days, then such failure will not constitute a
default so long as Master Developer: (A) commences to cure such failure within thirty (30) days
after receipt of written notice from the CRC; and (B) diligently pursues such cure to completion.
In the event Master Developer fails to address the material violation within the time specified
above, CRC shall, as its sole remedy, be entitled to injunctive relief to enforce the Design Standards.
CRC shall not be entitled, and expressly disclaims, any and all right to damages for Master
Developer's failure to materially comply with the Design Standards.
Section 13. Common Area and Common Facilities.
(A) Ownership. Unless expressly stated in a recorded instrument and
except for the rights specifically granted with respect to the Courtyard Lot and Public
Improvements, the Common Area and Common Facilities shall remain private, and
neither Master Developer’s execution or recording of an instrument portraying the
Common Area, nor the doing of any other act by Master Developer is, or is intended
to be, or shall be construed as, a dedication to the public of the Common Area or the
Common Facilities. Master Developer, the Corporation or, as to Limited Common
Area, the applicable Supplemental Association, may, however, dedicate or transfer
all or any part of the Common Area or the Common Facilities to any Permitted Title
Holder for public parks or other public purposes, to a municipality for use as public
rights-of-way or to a public utility for public utility purposes, and Master Developer
may transfer all or any part of the Common Area to a Permitted Title Holder as
contemplated by this Declaration.
(B) Reserved.
(C) Management and Control.
1. The Corporation, subject to the rights of Master
Developer, a Supplemental Association and the Owners set forth in this
Declaration and the rights of any Permitted Title Holder established in
an instrument conveying title to any part of the General Common Area,
shall be responsible for the exclusive management and control of the
General Common Area and the General Common Facilities, and except
as otherwise provided herein, in a Supplemental Declaration, or in an
instrument of conveyance to a Permitted Title Holder, shall keep the
General Common Area and General Common Facilities in good, clean,
attractive and sanitary condition, order and repair. The Corporation may,
with the consent of the applicable Supplemental Board, transfer to a
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Supplemental Association responsibility for management, control and/or
maintenance of General Common Area and General Common Facilities.
2. The Applicable Supplemental Association, subject to
the rights of Master Developer, the Corporation and the Owners set forth
in this Declaration and the rights of any Permitted Title Holder
established in an instrument conveying title to any part of the Common
Area, shall be responsible for the exclusive management and control of
the Limited Common Area and the Limited Common Facilities and,
except as otherwise provided herein, in a Supplemental Declaration, or
in an instrument of conveyance to a Permitted Title Holder, shall keep
the Limited Common Area and Limited Common Facilities in good,
clean, attractive and sanitary condition, order and repair. The
Supplemental Association may, with the consent of the Corporate Board,
transfer to the Corporation responsibility for management, control and/or
maintenance of Limited Common Area and Limited Common Facilities.
(D) Easements of Enjoyment. No Person shall have any right or
easement of enjoyment in or to the Common Area except to the extent granted
by, and subject to the terms and provisions of, this Declaration or a Supplemental
Declaration. Such rights and easements as are thus granted shall be appurtenant
to and shall pass with the title to every Lot for whose benefit they are granted.
Unless otherwise provided in this Declaration or a Supplemental Declaration, a
Plat or other Development Instrument, (i) all Owners shall have the right to the
use of the General Common Area, subject to the reserved rights of Master
Developer and the Corporation, and (ii) all Owners shall also have the right to
the use of such Limited Common Area and Limited Common Facilities, subject
to the reserved rights of Master Developer, the Corporation and the Applicable
Supplemental Association.
(E) Extent of Easements. The easements of enjoyment created hereby
shall be subject to the following:
1. The right of the Corporation, as to General Common
Area, and the applicable Supplemental Association, as to Limited
Common Area, to establish reasonable rules for the use of such Common
Area (including but not limited to use of identification cards) and to
charge reasonable fees for the use of any such Common Area or part
thereof;
2. The right of the Corporation, as to General Common
Area, and the applicable Supplemental Association, as to Limited
Common Area, to suspend the right of an Owner and all Persons whose
right to use the Common Area derives from such owner’s ownership of
a Lot (including Occupants on the Lot) to use all or any portions of such
Common Area for any period during which any Assessment against the
Owner’s Lot remains unpaid for more than thirty (30) days after notice;
3. The right of the Corporation, as to General Common
Area, and the Applicable Supplemental Association, as to Limited
Common Area, to suspend the right of an Owner or any Person claiming
through the Owner (including Occupants of the Unit) to use all or any
portion of such Common Area for any other infraction of this
Declaration, any Supplemental Declaration or any rules or regulations
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adopted by the Corporation and/or a Supplemental Association with
respect thereto;
4. The right of the Corporation, as to General Common
Area, and the applicable Supplemental Association, as to Limited
Common Area, to mortgage any or all of such Common Area, the
facilities constructed thereon and the Common Facilities associated
therewith for the purposes of improvements to, or repair of, such
Common Area, the facilities constructed thereon or such Common
Facilities, pursuant to approval of the Corporate Board or applicable
Supplemental Board, as the case may be; and
5. The right of the Corporation, as to General Common
Area, and the applicable Supplemental Association, as to Limited
Common Area, to dedicate or transfer all or any part of the Common
Area and/or the Common Facilities associated therewith to any public
agency, authority or utility exclusively for purposes permitted herein, but
subsequent to the Applicable Date, in the case of General Common Area,
and the applicable Parcel Applicable Date, in the case of Limited
Common Area, no such dedication or transfer shall be effective unless
an instrument is signed by the appropriate officers of the Corporation or
the applicable Supplemental Association acting pursuant to authority
granted by a majority of the votes of its board of directors; and
(F) Additional Rights of Use. The members of the family of every
Person owning or leasing a Residential Lot or Residential Unit may use the Common
Area and the Common Facilities (or part thereof) on the same terms and subject to
the same limitations as such Person subject to the terms of any instrument of
conveyance of such Common Area or Common Facilities to a Permitted Title Holder
and to such general rules, regulations, policies and procedures consistent with the
provisions of this Declaration (with respect to General Common Area) and all
Supplemental Declarations (with respect to Limited Common Area) as may be
established from time to time by the Corporation and/or a Supplemental Association.
(G) Damage or Destruction by Owner. In the event the General
Common Area or any General Common Facility is damaged or destroyed by an
Owner or any of his guests, tenants, licensees, agents, or members of his family, such
Owner authorizes the Corporation to repair said damaged area and the Corporation
shall repair said damaged area in a good 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 Corporation in the discretion of the
Corporation. 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 or Condominium Unit of said Owner.
(H) Conveyance of Title. Master Developer may retain the legal title to
the General Common Area and the General Common Facilities until the Applicable
Date and to Limited Common Area and Limited Common Facilities until the
applicable Parcel Applicable Date; provided, however, that Master Developer hereby
covenants that it shall convey to a Permitted Title Holder the title, by quitclaim deed,
(i) prior to the Applicable Date in the case of a General Common Area or General
Common Facility and (ii) prior to the Parcel Applicable Date in the case of a Limited
Common Area or Limited Common Facility.
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(I) Limited Common Area and Limited Common Facilities. Unless
otherwise expressly referenced herein, the ownership, use, maintenance and other
matters related to the Limited Common Areas and Limited Common Facilities shall
be governed by the Applicable Supplemental Association and corresponding
Supplemental Declaration establishing or governing such Limited Common Areas
and Limited Common Facilities. Without limiting the foregoing, no Person shall
have any right or easement of enjoyment in or to the Limited Common Area except
to the extent granted by, and subject to the terms and provisions of this Declaration
or a Supplemental Declaration. In the event the Limited Common Area or any
Limited Common Facility is damaged or destroyed by an Owner or any of his guests,
tenants, licensees, agents, or member of his family, such Owner authorizes the
applicable Supplemental Association to repair said damaged area and the applicable
Supplemental Association shall repair said damaged area in a good 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
applicable Supplemental Association in the discretion of the applicable
Supplemental Association. 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.
Section 14. Use of Property.
(A) Protective Covenants.
1. Land Use. Lots and Common Areas may be used only
for the purposes authorized by applicable zoning ordinances.
2. Nuisances. No nuisance shall be permitted to exist or
operate upon any Lot so as to be detrimental to any other Lot in the
vicinity thereof or to its Occupants.
3. Other Restrictions. Master Developer may impose
additional Restrictions in any Plat, Supplemental Declaration, other
written instrument, or in the general rules or regulations adopted by the
applicable Development Standards so long as such Restrictions do not
conflict with the Plan of Development or the Design Standards.
(B) Maintenance of Property. To the extent that exterior maintenance is
not provided for in a Supplemental Declaration, each Owner shall, at such Owner’s
expense, keep all Lots owned by the Owner, and all improvements therein or thereon,
in good order and repair and free of debris including, but not limited to, the seeding,
watering, and mowing of all lawns, the pruning and cutting of all trees and shrubbery
and the painting (or other appropriate external care) of all Structures and other
improvements, all in a manner and with such frequency as is consistent with good
property management as determined by the Corporate Board in its discretion. In the
event an Owner of any Lot in the Property shall fail to maintain the premises and the
improvement situated thereon, as provided herein, the Corporation, after notice to the
Owner as provided by the Corporate By-Laws and approval by a majority vote of the
Corporate Board, shall have the right to enter upon said Lot to correct drainage and
to repair, maintain and restore the Lot and the exterior of the Structures and any other
improvements erected thereon. All costs related to such correction, repair or
restoration shall become a Special Assessment upon such Lot.
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Section 15. Easements.
(A) General Easement. There is hereby created a blanket easement over,
across, through and under the Property for ingress, egress, installation, replacement,
repair and maintenance of underground water, sewer, gas, telephone and electric lines
and systems; provided, however, that no water, sewer, gas, telephone or electric lines
and systems may be installed or relocated in a Parcel except as proposed and
approved by Master Developer prior to the Applicable Date or by the applicable
Development Standards thereafter. By virtue of this easement it shall be expressly
permissible for Master Developer or the providing utility or service company to
install and maintain facilities and equipment on the Property and to excavate for such
purposes if Master Developer or such company restores the disturbed area as nearly
as is practicable to the condition in which it was found. Should any utility furnishing
a service covered by the general easement herein provided request a specific
easement by separate recordable document, Master Developer or the Corporate
Board, in the case of General Common Area, and Master Developer or the
Supplemental Board, in the case of Limited Common Area, shall have the right to
grant such easement on the Property without conflicting with the terms hereof. This
blanket easement shall in no way affect any other recorded easements on the
Property, shall be limited to improvements as originally constructed, and shall not
cover any portion of a Lot upon which a Unit or Building has been constructed or is
proposed for construction as shown on the Plan of Development.
(B) Public Health and Safety Easements. An easement is hereby created
for the benefit of, and granted to, all police, fire protection, ambulance, delivery
vehicles, and all similar Persons to enter upon all General Common Areas and all
Limited Common Areas and Private Streets in the performance of their duties.
(D) Crossing Underground Easements. Easements utilized for
underground service may be crossed by driveways, walkways, General Common
Area Access Easements and Limited Common Area Access Easements. Such
easements as are actually utilized for underground service shall be kept clear of all
other improvements, including buildings, decks, patios, or other pavings, other than
crossings, driveways, walkways, General Common Area Access Easements or
Limited Common Area Access Easements, and neither Master Developer nor any
utility company using the easements shall be liable for any damage done by either of
them or their assigns, agents, employees, or servants to shrubbery, trees, flowers or
other improvements of the Owner located on the land covered by said easements.
(E) Easement to Correct Drainage. A blanket easement and right is
reserved in favor Master Developer on, over and under the ground within that Parcel
to maintain and to correct drainage of surface water in order to maintain reasonable
standards of health, safety and appearance. Such right expressly includes the right to
cut any trees, bushes or shrubbery, make any gradings of the soil, or to take any other
similar action reasonably necessary, following which Master Developer shall restore
the affected property to its original condition as nearly as practicable. Master
Developer shall give reasonable notice of its intention to take such action to all
affected Owners, unless in the opinion of Master Developer an emergency exists
which precludes such notice. The foregoing Easement to Correct Drainage shall not
be exercised in a manner that damages an existing Structure absent the written
consent of the Owner of such Structure.
(F) Damage. Any damage to a Lot or Unit caused by the exercise of any
of the easement rights referred to in this Declaration shall promptly be repaired and
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restored to the condition existing prior to the exercise of such rights, by, and at the
expense of, the Person exercising such rights.
(G) Connections Authorized. Each Owner upon whose Lot an easement
exists hereby authorizes and grants an easement, to adjacent Owners, to tie-in to and
connect with any such easements existing on such Owner’s Lot.
Section 16. Use of Lots During Development. Notwithstanding any provisions to the
contrary contained in this Declaration or in any other instrument or agreement, Master Developer
or its sales agents or contractors may maintain during the period of construction and sale or rental
of Lots and Units in the Property, upon such portion thereof as is owned or leased by Master
Developer, such facilities as in the discretion of Master Developer may be reasonably required,
convenient or incidental to the construction, sale or rental of Lots and Units, including but without
limiting the generality thereof, a business office, storage area, construction yards, signs, model
Units and sales or leasing offices. Master Developer specifically reserves the right to maintain a
sales office in, and make other use of, any building located within a Common Area during the
period that it is engaged in the sale of Lots.
Section 17. Enforcement. The Corporation, the applicable Supplemental Association (in
the case of Limited Common Area, Limited Common Facilities or other rights provided for
hereunder with respect to a Supplemental Association), any Owner, or Master Developer shall have
the right to enforce, by proceeding at law or in equity all restrictions, conditions, covenants,
reservations, liens and charges now or hereafter imposed by the provisions of this Declaration. No
delay or failure by any Person to enforce any of the Restrictions or to invoke any available remedy
with respect to a violation or violations thereof shall under any circumstances be deemed or held to
be a waiver by that Person of the right to do so thereafter, or an estoppel of that Person to assert any
right available to him upon the occurrence, recurrence or continuation of any violation or violations
of the Restrictions. In any action to enforce this Declaration, the Person seeking enforcement shall
be entitled to recover all costs of enforcement, including attorney’s fees, if it substantially prevails
in such action.
Section 18. Limitations on Rights of the Corporation and Supplemental Association. Prior
to the Applicable Date, neither the Corporation nor any Supplemental Association may use its
resources or take a public position with respect to the Plan of Development or to changes thereto
proposed by Master Developer. Nothing in this Section shall be construed to limit the rights of the
Owners acting as individuals or in affiliation with other Owners or groups as long as they do not
employ the resources of the Corporation or a Supplemental Association or identify themselves as
acting in the name, or on the behalf, of the Corporation or a Supplemental Association.
Section 19. Approvals by Master Developer. Notwithstanding any other provisions hereof,
prior to the Applicable Date, the following actions shall require the prior approval of Master
Developer: the addition of real estate to the Property; dedication or transfer of the General Common
Area; mergers and consolidations of Parcels within the Property or of the Property with other real
estate; mortgaging of the General Common Area; amendment of this Declaration or any
Supplemental Declaration; changes in the basis for Assessment or the amount, use and time of
payment of the Initial Assessment; and the assumption of personal liability for payment of
Assessments by any Supplemental Association pursuant to Section 11(A) of this Declaration; the
dedication or transfer any of the Limited Common Area; mortgaging of any of the Limited Common
Area; and the amendment of any Supplemental Declaration.
Section 20. Mortgages.
(A) Notice to Corporation. Any Owner who places a first mortgage lien
upon a Unit or the Mortgagee may notify the Secretary of the Corporate Board of
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such mortgage and provide the name and address of the Mortgagee. A record of such
Mortgagee’s name and address shall be maintained by the Secretary and any notice
required to be given to the Mortgagee pursuant to the terms of the Organizational
Documents shall be deemed effectively given if mailed to such Mortgagee at the
address shown in such record in the time provided. Unless notification of any such
mortgage and the name and address of Mortgagee are furnished to the Secretary,
either by the Owner or the Mortgagee, no notice to any Mortgagee as may be
otherwise required by the Organizational Documents shall be required and no
Mortgagee shall be entitled to vote by virtue of the Organizational Documents or a
proxy granted to such Mortgagee in connection with the mortgage.
(B) Notices to Mortgagees. The Corporation may provide, to any
Mortgagee of whom the Corporation has been provided notice under Section 20(A)
above, notice of any of the following:
1. Any condemnation or casualty loss that affects a
material portion of the General Common Area;
2. Any delinquency in the payment of any Assessment
owed to the Corporation by the Owner of any Unit on which said
Mortgagee holds a mortgage or any default by an Owner under the
Organizational Documents, if said delinquency or default continues for
more than sixty (60) days;
3. Any lapse, cancellation or material modification of any
insurance policy or fidelity bond maintained by the Corporation;
4. Any proposed action that requires the consent of a
specified percentage of Mortgagees hereunder; and,
5. Any proposed amendment of the Organizational
Documents effecting a change in (i) the interests in the General Common
Area appertaining to any Lot or the liability for Maintenance Costs
appertaining thereto, (ii) the vote appertaining to a Lot or (iii) the
purposes for which any Lot or the General Common Area are restricted.
(C) Notice of Unpaid Assessments. The Corporation shall, upon request
of a Mortgagee, a proposed mortgagee, or a proposed purchaser who has a contractual
right to purchase a Lot or Unit, furnish to such mortgagee or purchaser a statement
setting forth the amount of the unpaid Assessments owed to the Corporation against
the Lot or Unit and the Owners, and any Mortgagee or grantee of the Lot or Unit shall
not be liable for, nor shall the Lot or Unit conveyed be subject to a lien for, any unpaid
Assessments for periods prior to such statement in excess of the amount set forth in
such statement.
(D) Financial Statement. Upon the request of any Mortgagee, the
Corporation shall provide to said Mortgagee the most recent financial statement
prepared on behalf of the Corporation.
(E) Payments by Mortgagees. Any mortgagee may (i) pay taxes or other
charges that are in default and that may or have become a lien upon the Common
Area or any part thereof and (ii) pay overdue premiums on hazard insurance policies
or secure new hazard insurance coverage for the Common Area in case of a lapse of
17
a policy. A Mortgagee making such payments shall be entitled to immediate
reimbursement from the Corporation.
Section 21. Amendments.
(A) Generally. Subject to Section 21(C), this Declaration may be
amended at any time by an instrument signed by (i) the appropriate officers of the
Corporation acting pursuant to the authority granted by not less than a majority of the
votes of the Corporate Board cast at a meeting of the Corporate Board duly called for
the purpose of amending this Declaration and (ii), to the extent required by Section
20, Master Developer; provided, however, CRC consent shall also be required for
any amendment to the requirements of Section 7 (Courtyard Lot) or Section 12
(Architectural Control), including but not limited to any amendment or modification
of the Design Standards set forth in Exhibit F.
(B) By Master Developer. Subject to Subsection 21(C) but without
regard to Subsection 21(A), Master Developer hereby reserves the right, prior to the
Applicable Date to amend and revise (i) the provisions, standards, covenants and
restrictions contained in this Declaration and (ii) any and all exhibits attached to this
Declaration including, without limitation, the Plan of Development and the Valuation
Table, unless the amendment of a particular provision of this Declaration is explicitly
prohibited by this Declaration. Such amendments shall be in writing, executed by
Master Developer, and recorded with the Recorder of Hamilton County, Indiana.
(C) Approval by Zoning Authority. No amendment which would
eliminate, waive or qualify a requirement set forth in this Declaration for the consent
of or approval by the Zoning Authority shall be effective unless approved in writing
by the Zoning Authority.
(F) Effective Date. Any amendment shall become effective upon its
recordation in the Office of the Recorder of Hamilton County, Indiana.
Section 22. Interpretation. The underlined titles preceding the various Sections and Sub-
Sections of this Declaration are for convenience of reference only, and none of them shall be used
as an aid to the construction of any provision of this Declaration. Wherever and whenever
applicable, the singular form of any word shall be taken to mean or apply to the plural, and the
masculine form shall be taken to mean or apply to the feminine or to the neuter.
Section 23. Duration. This Declaration and its covenants and restrictions are for the mutual
benefit and protection of the present and future Owners, the Corporation, and Master Developer,
and shall run with the land and shall be binding on all parties and all Persons claiming under them
until January 1, 2075, at which time said covenants and restrictions shall be automatically extended
for successive periods of ten (10) years, unless changed in whole or in part by vote of a majority of
the members of the Corporate Board. Notwithstanding the foregoing, all easements created in this
Declaration shall be perpetual to the fullest extent of the law, unless otherwise specifically stated
herein.
Section 24. Severability. Every one of the Restrictions is hereby declared to be
independent of, and severable from, the rest of the Restrictions and of and from every one of the
Restrictions, and of and from every combination of the Restrictions. Therefore, if any of the
Restrictions shall be held to be invalid or to be unenforceable, or to lack the quality of running with
the land, that holding shall be without effect upon the validity, enforceability or “running” quality
of any other one of the Restrictions.
18
Section 25. Non-Liability of Master Developer. Master Developer shall not have any
liability to an Owner, Occupant or any other Person with respect to drainage on, over or under a Lot
or erosion of a Lot. Such drainage and erosion control shall be the responsibility of the Owner of
the Lot upon which a Unit is constructed and an Owner, by acceptance of a deed to a Lot, shall be
deemed to agree to indemnify and hold Master Developer free and harmless from and against any
and all liability arising from, related to, or in connection with the erosion of or drainage on, over
and under the Lot described in such deed. Master Developer shall not have any duties, obligations
or liabilities hereunder except such as are expressly assumed by Master Developer, and no duty of,
or warranty by, Master Developer shall be implied or be inferred from any term or provision of this
Declaration.
Section 26. Exclusive Rights to Use Name of Development. No Person shall use the name
“Melange” or any derivative of such name or in logo or depiction in any printed or promotional
material without Master Developer’s prior written consent. However, Owners may use the name
“Melange” in printed or promotional matter where such term is used to specify that particular
property is located within Melange Carmel and the Corporation and any Supplemental Association
shall be entitled to use the words “Melange” in its name.
Section 27. Right to Approve Additional Covenants. Prior to the Applicable Date, no
Person shall record any declaration of covenants, conditions and restrictions, Declaration of
Condominium, Townhome Declaration or similar instrument affecting any portion of the Property
without Master Developer’s written consent. Any attempted recordation without such consent shall
result in such instrument being void and of no force and effect unless subsequently approved by
written consent signed and recorded by Master Developer.
Section 28. Perpetuities. If any of the covenants, conditions, restrictions, or other
provisions of this Declaration shall be unlawful, void, or voidable for violation of the rule against
perpetuities, then such provisions shall continue only until twenty-one (21) years after the death of
the last survivor of the now living descendants of George W. Bush, former President of the United
States of America.
Section 29. Mechanic’s Liens. Each Owner agrees that in the event any mechanic’s lien
or other statutory lien shall be filed against its Lot, any other Lot or any Common Area by reason
of work, labor, services or materials supplied to or at the request of such Owner pursuant to any
construction on its Lot, or at the request of the Owner or an Occupant of the Lot pursuant to any
construction by said Owner or Occupant, it shall pay and discharge the same of record within thirty
(30) days after the filing thereof, subject to the provisions of the following sentence. Each Owner
shall have the right to contest the validity, amount or applicability of such liens by appropriate legal
proceedings, and, so long as it shall furnish such bond or provide such indemnification as is
hereinafter provided and be prosecuting such contest in good faith, the requirement that it pay and
discharge such liens within said thirty (30) days shall not be applicable; provided, however, that in
any event such Owner shall, within thirty (30) days after the filing thereof, bond or indemnify
against such liens in amount and in form satisfactory to induce the title insurance company which
insured title to the respective parcel, to insure over such liens or to reissue and update its existing
policy, binder or commitment without showing title exception by reason of such liens, and shall
indemnify and save harmless Master Developer, the other Owners, the Corporation and the
applicable Supplemental Association, if any, from all loss damage, liability, expense or claim
whatsoever (including reasonable attorney’s fees and other costs of defending against the
foregoing) resulting from the assertion of any such liens. In the event such legal proceeding shall
be finally concluded (so that no further appeal may be taken adversely to the Owner contesting
such liens) such Owner shall, within ten (10) days thereafter, cause the liens to be discharged of
record.
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SIGNATURE PAGES FOLLOW]
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IN WITNESS WHEREOF, Master Developer has executed this Declaration as of the
date set forth above.
OE VETERANS WAY, LLC,
an Indiana limited liability company
By: Onyx and East, LLC,
its Sole Member
By: _________________________
Printed: _________________________
Title: _________________________
STATE OF INDIANA )
)
COUNTY OF ____________ )
Before me, a Notary Public in and for the State of Indiana, personally appeared
________________, the duly authorized ___________________ of Onyx and East, LLC, the sole
member of OE Veterans Way, LLC, an Indiana limited liability company, who acknowledged
execution of the foregoing instrument for and on behalf of said nonprofit corporation.
Witness my hand and Notarial Seal this ____ day of __________, 201.
My Commission Expires: By:
Notary Public
County of Residence: Printed:
21
EXECUTED AND DELIVERED in my presence:
[Witness’s Signature]
Witness:
[Witness’s Printed Name]
STATE OF _________________ )
) SS:
COUNTY OF _______________ )
Before me, a Notary Public in and for said County and State, personally appeared
______________________________ [Witness’s Name], being known to me to be the person whose
name is subscribed as a witness to the foregoing instrument, who, being duly sworn by me, deposes
and says that the foregoing instrument was executed and delivered by _______________[Signor’s
Name] in the above-named subscribing witness’s presence, and that the above-named subscribing
witness is not a party to the transaction described in the foregoing instrument and will not receive
any interest in or proceeds from the property that is the subject of the transaction.
Witness my hand and Notarial Seal this ____ day of ________________, 2021.
_______________________________
[Notary Public’s Signature]
_______________________________
[Notary Public’s Printed Name]
This instrument prepared by, and after recording, return to: Samantha R. Hargitt, Attorney at
Law, Dinsmore & Shohl 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]
EXHIBIT “A”
LEGAL DESCRIPTION OF REAL ESTATE
EXHIBIT “B”
DESCRIPTION AND DEPICTION OF ADDITIONAL REAL ESTATE
EXHIBIT “C”
DEFINITIONS
“Additional Real Estate” means the real estate located in Hamilton County, Indiana and particularly
described in what is attached hereto and incorporated herein by reference as Exhibit B, along with all real
estate contiguous therewith.
“Applicable Date” means the date that Master Developer has voluntarily relinquished its rights as the
Master Developer under this Declaration (but not such earlier date as Master Developer may voluntarily
relinquish its rights as Master Developer under a Supplemental Declaration), as established in a written
notice to the Corporation.
“Applicable Supplemental Association” or words to similar effect means the Supplemental Association that
pursuant to a Plat, Supplemental Declaration or a Development Instrument has jurisdiction of a particular
Parcel or Limited Common Area.
“Assessments” means all sums assessed against the Owners or as declared by this Declaration, any
Supplemental Declaration, the Corporate Articles or the Corporate By-Laws or the articles of incorporation
or by-laws of a Supplemental Association.
“Assigned Votes” means the votes which the Master Developer assigns to each Supplemental Board and
which are cast by the members of each Supplemental Board at each election of the members of the Master
Board, occurring subsequent to the Applicable Date, in the manner specified in the Corporate Articles and
Corporate Bylaws. The Assigned Votes shall be as specified in the Valuation Table and/or a Supplemental
Declaration, as the same may be amended from time to time by the Master Developer or the Master Board
in their discretion.
“Capital Assessment” means an Assessment made pursuant to Section 11(E) of the Declaration.
“City” means the City of Carmel, Indiana.
“Common Area” means any General Common Area and any Limited Common Area.
“Common Facilities” means any General Common Facilities and any Limited Common Facilities.
“Common Lighting” means the light standards, wiring, bulbs and other appurtenances, if any, installed to
illuminate the General Common Area or Limited Common Area, as the case may be, or the public and
private ways.
“Condominium” means a condominium, established per the terms of a Declaration, pursuant to and as
defined in Indiana Code 32-25-1-1 et. seq., as amended.
“Condominium Association” means an “association of co-owners” as that term is defined in Indiana Code
32-25-1-1 et. seq., as amended.
“Corporate Articles” means the Articles of Incorporation of the Corporation, as amended from time to time.
“Corporate Board” means the Board of Directors of the Corporation.
“Condominium Building” means the condominium building to be constructed on the Condo Lot identified
on the Plat and subjected to a Condominium regime.
“Corporate By-Laws” means the Code of By-Laws of the Corporation, as amended from time to time.
“Corporate Obligations” means, collectively, the cost as determined by the Corporate Board in its discretion
of (i) the improvement, maintenance, repair, replacement and operation of the General Common Area and
the General Common Facilities, (ii) insurance required by this Declaration to be maintained by the Master
Developer, (iii) services to remove snow, from the General Common Area, in frequencies determined by
the Corporate Board and the Master Developer, (v) maintaining the Public Improvements and landscaping,
street lights, signs, turf, bicycle parking, walls and fences located within the General Common Area, and
(vii) all other obligations of the Corporation which are specified in this Declaration.
“Corporation” means Melange Master Association, Inc., an Indiana nonprofit corporation, its successors
and assigns.
“Corporation’s Annual Budget” means the costs, as determined by the Corporation’s Board, in its
discretion, of fulfilling the Corporation’s Obligations on an annual basis.
“Corporation’s Annual Operating Deficit” means the cost of satisfying the Corporate Obligations, on an
annual basis, as determined by the Corporate Board, less all of the total General Assessment owed by all
Owners other than the Master Developer, for the subject year.
“Courtyard Lot” means that portion of the General Common Area identified on the Plat as the Courtyard
Lot.
“Master Developer” means OE Veterans Way, LLC, an Indiana limited liability company, or its
replacement appointed pursuant to the terms and conditions of this Declaration.
“Declaration of Condominium” means a “declaration” as defined in Indiana Code 32-25-1-1, et seq., as
amended.
“Design Standards” means standards that govern the planning and design of each Parcel and the Property
as a whole as detailed in Exhibit “F” to this Declaration, which standards may be amended or supplemented
from time to time by amendment to this Declaration executed by Master Developer and CRC. In no event
shall the Design Standards be amended or supplemented without the prior approval of CRC.
“Development Instrument” means any other recorded instrument applicable to the Property prepared by
Master Developer in addition to this Declaration, a Supplemental Declaration or a Plat.
“General Assessment” means an Assessment made pursuant to Section 11(B) of the Declaration.
“General Common Area” means (i) areas of land that are designated as Common Area on any Plat or in this
Declaration or any Development Instrument, and all improvements located within any such General
Common Area, including but not limited to those areas identified as Common Area 1, Common Area 2,
Common Area 3, and Courtyard Lot on the Firehouse Square Subdivision Secondary Plat of and (ii) other
areas of land that are conveyed to or acquired by the Corporation, and its successors and assigns, together
with all improvements thereto, all utility service lines or facilities located therein not maintained by a public
utility company or governmental agency and all General Common Facilities located therein or used in
connection therewith.
“General Common Facilities” means all improvements which are located in the General Common Areas,
including, without limitation, the Public Improvements and all paths, sidewalks, drive aisles, bicycle racks,
walls, fences, signs and landscaping, utility and drainage systems, and any and all other infrastructure not
maintained by the City within the General Common Area or that portion of the public right-of-way which
is immediately adjacent to a General Common Area.
“Initial Assessment” means the Initial Assessment contemplated by Section 11(D) of the Declaration.
“Limited Common Area” means any areas of land or improvements that are (i) designated by the Master
Developer, in the Master Developer’s discretion, as Limited Common Area on any Plat or in any
Supplemental Declaration or Development Instrument, or located within any such Limited Common Area,
(ii) conveyed to or acquired by a Supplemental Association, or (iii) required by this Declaration to be
maintained by a Supplemental Association, together with all improvements thereto, all utility service lines
or facilities located therein not maintained by a public utility company or governmental agency and any
Limited Common Facilities located therein.
“Limited Common Facilities” means (i) all improvements located within a Limited Common Area
including, without limitation, all paths, sidewalks, drive aisles, bicycle racks, walls, fences, signs,
landscaping, and utility lines and facilities; (ii) what the Master Developer, in its discretion, identifies and
defines in a Supplemental Declaration as a Limited Common Facility and may also include, without
limitation, paths, sidewalks, street lights, signs, turf, bicycle racks, walls and fences and any and all
infrastructure not maintained by the City, which are located within a Parcel or a public street internal or
adjacent to a Parcel but not located within the General Common Area.
“Lot” means (i) the Condo Lot as identified on the Plat, (ii) any numbered Townhome Lot identified on the
Plat; (iii) any part of the Property designated in a recorded instrument as “Lot”, and (iv) any other part of
the Property acquired by an Owner or used by Master Developer for the construction or operation of, or
occupancy as, one or more Units.
“Maintain,” as it refers to any physical item means maintain, repair, replace and remove as necessary or
appropriate.
“Maintenance Costs” means all of the costs, as determined by the Corporate Board, in its discretion, with
respect to General Common Areas and General Common Facilities, and the Applicable Supplemental
Association, in the discretion of its Supplemental Board with respect to Limited Common Areas and
Limited Common Facilities necessary to keep the facilities to which the term applies operational and in
good condition, including but not limited to the cost of all upkeep, maintenance, repair, and replacement of
all or any part of any such facility, payment of all insurance premiums for public liability, casualty and
other insurance maintained with respect thereto, all utility charges relating to such facilities, all taxes
imposed on the facilities and on the underlying land, leasehold, easement or right-of-way, and any other
expense related to the continuous maintenance, operation, or improvement of the facilities.
“Majority” means any number greater than fifty percent (50%).
“Melange Carmel” means the name by which Property shall be commonly known.
“Mortgagee” means the holder of a first mortgage on a Lot or Unit.
“Occupant” means any Person who is in possession of a Unit either as an Owner or as a tenant pursuant to
a lease or other occupancy agreement.
“Organizational Document” means, collectively, the Declaration, the Master Articles and the Master By-
Laws.
“Owner” means Person, including Master Developer, who at the time has or is acquiring legal title to a Lot
or Unit, except a Person who has or is acquiring such title merely as security for the performance of an
obligation.
“Parcel” means each parcel of land or one or more Lots within the Property that are subject to the same
Supplemental Declaration or are declared by Master Developer to constitute a “Parcel” and may include
Limited Common Areas. One or more Lots may be included in more than one Parcel. A Parcel comprises
more than one type of use and may include noncontiguous lots, platted subdivisions or parcels of land.
“Parcel Applicable Date” means the date specified in the applicable Supplemental Declaration as the
“Parcel Applicable Date” for that Parcel.
“Parcel Assessment” means an Assessment made pursuant to a Supplemental Declaration for a Parcel to be
used for such purposes as are authorized by the Supplemental Declaration.
“Permitted Title Holder” means (i) the Corporation, (ii) any Supplemental Association, (iii) the City, CRC
or any of its agencies or (iv) a nonprofit corporation having perpetual existence or a governmental entity
designated, in either case, by Master Developer.
“Person” means an individual, firm, corporation, partnership, limited liability company, association, trust
or other legal entity, or any combination thereof.
“Plan of Development” means that plan prepared by Master Developer and approved by CRC that outlines
the total scheme of development and general uses of land in the Property, attached to this Declaration as
Exhibit “D”.
“Plat” means that certain Firehouse Square Subdivision Second Plat, recorded in the Office of the Recorder
of Hamilton County, Indiana, as Instrument No. __________________, and any subsequent plats recorded
with respect to the Property or any portion thereof.
“Project Agreement” means that certain Project Agreement dated July 27, 2020, by and between CRC and
Master Developer, as amended.
“Property” means certain property located in Hamilton County, Indiana, as described in Exhibit “A” to this
Declaration and such other parts of the Additional Real Estate as may from time to time be annexed thereto
under the provision of Section 3 of this Declaration.
“Public Improvements” means improvements to be located in the General Common Area, which
improvements shall (i) connect the paved trail commonly known as the Monon Greenway to the Veteran’s
Way public right-of-way, and (ii) provide a neighborhood outdoor amenity that is open to the general public,
as agreed upon by Master Developer and approved by CRC pursuant to the Plan Refinement Process (as
such term is defined in the Project Agreement).
“Real Estate” means the real estate particularly described in what is attached hereto and incorporated herein
by reference as Exhibit “A”.
“Residential Lot” means a Lot which is used or intended to be used primarily for residential purposes except
where the Lot is improved by the construction thereon of the Condominium Building.
“Residential Unit” means a Structure containing a room or combination of rooms designed for year-round
habitation, containing a bathroom and kitchen facilities, and designated for or used as a permanent residence
by at least one Person, and all Structures accessory thereto.
“Restrictions” means the covenants, conditions, easements, charges, liens, restrictions, rules, regulations,
policies and procedures and all other provisions set forth in this Declaration, all Applicable Supplemental
Declarations, any Plats, any Development Instruments, Design Standards and any rules, regulations,
policies, and procedures adopted by the Corporate Board and/or a Supplemental Board, in their discretion,
as the same may from time to time be amended.
“Special Assessment” means an Assessment made pursuant to Section 11(J) of the Declaration.
“Structure” means anything which is constructed or installed upon a Lot including, without limitation, all
improvements which are principally above ground and enclosed by walls.
“Supplemental Association” means any nonprofit corporation established pursuant to a Supplemental
Declaration to carry out functions specified in such Supplemental Declaration.
“Supplemental Board” means the board of directors of a Supplemental Association.
“Supplemental Declaration” means any supplemental declaration of covenants, conditions or restrictions
which may be recorded, with respect to a Parcel or part of a Parcel and which may extend the provisions of
this Declaration or any previously recorded Supplemental Declaration to a Parcel and which may contain
such complementary or supplementary provisions for such Parcel as are specified in the Supplemental
Declaration by the Master Developer, in Master Developer’s discretion.
“Townhome” means any structure of two or more stories for single family occupancy, connected to one or
more similar structures, all constructed on the Real Estate, together with the individual Townhome Lot
conveyed therewith and upon which located.
“Townhome Association” means an association of owners established pursuant to a Townhome Declaration
for the purpose of: (i) assessing, collecting and expending assessments relating a Townhome Development;
(ii) fulfilling the maintenance obligations relating a Townhome Development; and (iii) performing such
other management and administrative tasks as may be required in connection with the Limited Common
Areas of a Townhome Development.
“Townhome Declaration” means a Supplemental Declaration for a Townhome Development, which will
be recorded with the Recorder of Hamilton County, Indiana.
“Townhome Development” means project within the Property for the development of Townhome Units,
including all buildings, improvements and appurtenances appurtenant easements and related recreational
facilities.
“Townhome Lot” means a Lot which is used or intended to be used primarily for residential purposes where
the Lot is improved by the construction thereon of a Townhome.
“Unit” means any Residential Unit, including a Condominium or Townhome, and “Units” means all
Residential Units, including all Condominiums and Townhomes.
“Valuation Factor” means Master Developer’s good faith estimate of a quantitative indicator of the extent
or degree of the assumed demand of a Lot or Unit (including a Horizontal Property Regime) for services
subject to the General Assessment.
“Valuation Table” means the table attached hereto and incorporated herein by reference as Exhibit “G”
which may, from time to time, be modified, amended and revised by the Master Developer in the Master
Developer’s discretion, for any reason including, without limitation, in order to address the characteristics
and impact of any Additional Real Estate annexed to the Property and made subject to this Declaration per
the terms of this Declaration.
“Zoning Authority” with respect to any action means the [Plan Commission of Hamilton County], or,
where such individual lacks the capacity to take action, or fails to take such action, the governmental body
or bodies, administrative or judicial, in which authority is vested under applicable law to take such action,
review such action, or hear appeals regarding such action or lack thereof.
EXHIBIT “D”
PLAN OF DEVELOPMENT
EXHIBIT “E”
LEGAL DESCRIPTION OF MELANGE TOWNHOMES
EXHIBIT “F”
DESIGN STANDARDS
[See attached.]
EXHIBIT “G”
VALUATION TABLE
A. Valuation Factor Chart – The following Valuation Chart is subject to change by the Master
Developer, and may be amended by the Master Developer, from time to time, in the Master
Developer’s discretion.
Land Use
Valuation
Factor (the
“VF”) per
Unit of
Measure
Unit
of
Measure
Assigned
Vote
General
Assessment for
Calendar Year
2022
Residential
Melange Townhomes ___ units ____ Units 1 / Unit $_____ / Unit
Melange Condominiums ___ units ____ Units 1 / Unit $______ / Unit
B. Assessments per VF – The General Assessment is based upon this Valuation Table. The General
Assessment for each Lot within any part of the Additional Real Estate which is annexed and made
subject to the Declaration shall be subsequently determined by the Master Developer, in the Master
Developer’s discretion, shall be specified in the Supplemental Declaration applicable to such
Additional Real Estate, and shall be based in part upon the VF assigned to such Owner.
EXHIBIT “H”
LEGAL DESCRIPTION OF MELANGE CONDOMINIUMS
3151548-5 (12960-0025)