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HomeMy WebLinkAboutSupplemental Townhome Declaration_DRAFTCross References: __________________ __________________ SUPPLEMENTAL DECLARATION OF COVENANTS AND RESTRICTIONS FOR MELANGE TOWNHOMES This SUPPLEMENTAL DECLARATION OF COVENANTS AND RESTRICTIONS FOR MELANGE TOWNHOMES (the “Declaration”) is made this ____ day of ____________________, 2021, by OE VETERANS WAY, LLC, an Indiana limited liability company (the “Supplemental Declarant”). RECITALS: A. Supplemental Declarant, whose principal office and place of business is located at 1828 Central Avenue, Suite 100, Indianapolis, Indiana 46202, is the 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 “Land”), by virtue of a Limited Warranty Deed recorded on ____________________ as Instrument No. _________________ in the Office of the Recorder of Hamilton County, Indiana. B. The word “Parcel” shall hereafter mean and refer to the Land. C. This is a Supplemental Declaration as that term is defined in the Master Declaration of Covenants and Restrictions of Melange Carmel recorded on __________________ as Instrument No. __________________ in the Office of the Recorder of Hamilton County, Indiana (the “Declaration”); D. The Supplemental Declarant intends to construct the Development (as hereinafter defined) on the Parcel and intends to convey portions of the Development as Townhome Lots to Owners, upon each of which a Townhome Unit and related improvements have been or will be constructed. E. A general site plan depicting the Development is set forth in Exhibit B attached hereto and by reference made a part hereof (the “Site Plan”). F. The buildings, improvements and appurtenances on the Parcel as shown and depicted on the Site Plan shall be known as the Melange Townhomes (the “Development”) and shall include multiple townhome buildings. G. The townhome buildings to be constructed in the Development shall contain one or more living units with attached garages, as depicted on the Site Plan (each a “Townhome Unit”). The area upon which each Townhome Unit is located, including all sidewalks, stoops, yards (if any), decks, gardens, and garages located thereon, shall be known as a “Townhome Lot”, and each Townhome Lot is established by that certain Firehouse Square Subdivision 07/12/21 2 Secondary Plat, recorded in the Office of the Recorder of Hamilton County, Indiana as Instrument No. _________________ (the “Plat”). H. Supplemental Declarant, by execution of this Supplemental Declaration, does hereby create, submit, declare, and subject the Parcel, the Development and the Townhome Lots to certain easements, restrictions, covenants, conditions and charges as hereinafter set forth. NOW THEREFORE, in consideration of the foregoing and of the covenants herein contained, Supplemental Declarant declares that, in addition to the covenants, restriction, easements, charges and liens imposed by the Declaration, the Parcel and the Townhome Lots in the Development shall be held, transferred, sold, conveyed and occupied subject to the covenants, conditions, restrictions, easements, charges and liens set forth in this Supplemental Declaration, as follows: 1. Definitions. Words, phrases and terms that are defined in the Declaration have the same meaning in this Supplemental Declaration except as herein otherwise provided. In addition to other words and terms defined throughout this Supplemental Declaration, the following words, phrases, and terms, as used in this Supplemental Declaration, unless the context clearly requires otherwise, mean the following: (a) “Act” means the Homeowners’ Association Law of the State of Indiana, Indiana Code §32-25.5-1 et. seq., as such Act may be amended. The Act is incorporated herein by reference. (b) “Common Expenses” means all sums and expenses of administration of the Supplemental Association and expenses for the upkeep, operation, maintenance, repair and replacement of the Limited Common Areas and all sums lawfully assessed against the Owners by the Supplemental Association or as declared by the Act, this Supplemental Declaration, or the Supplemental Bylaws. Unless otherwise provided herein or otherwise determined by Supplemental Declarant or the Supplemental Association (as applicable) in accordance with this Supplemental Declaration, Common Expenses shall be paid by Owners as a part of the Parcel General Assessment. (c) “Exterior Maintenance Obligations” shall mean those obligations of the Supplemental Association specified in Paragraph 6(c). (d) “Insurance Trustee” means any bank, with trust powers, authorized to do business in Hamilton County, Indiana which may be designated by the Supplemental Board of Directors for the custody and disposition, as herein or in the Supplemental Bylaws provided, of insurance proceeds and condemnation awards. (e) “Limited Common Areas” shall have the meaning set forth in Section 3 of this Supplemental Declaration established in compliance with the Declaration. (f) “Majority of Mortgagees” means those Mortgagees with first mortgages on at least fifty-one percent (51%) of the total Townhome Lots. 07/12/21 3 (g) “Majority of Owners” means the Owners entitled to cast as least fifty-one percent (51%) of the total votes of all Owners, with each Owner entitled to cast one vote per Townhome Lot. (h) “Managing Agent” means a property management agent employed by the Supplemental Association or Supplemental Declarant pursuant to Section 3.06 of the Supplemental Bylaws. (i) “Member” means a member of the Supplemental Association. (j) “Mortgagee” means the holder of a first mortgage lien on a Townhome Lot. (k) “Mortgaged Lot” means a Townhome Lot that is subject to the lien of a mortgage held, insured or guaranteed by a Mortgagee. (l) “Parcel Applicable Date” means the date determined pursuant to Section 4.02 of the Supplemental Bylaws. (m) “Supplemental Articles” or “Supplemental Articles of Incorporation” means the Supplemental Articles of Incorporation of the Supplemental Association, as hereinafter defined. The Supplemental Articles of Incorporation are incorporated herein by reference. (n) “Supplemental Association” means the “Melange Townhomes Homeowners Association, Inc.”, an Indiana not-for-profit corporation more particularly described in Paragraph 5 of this Supplemental Declaration. (o) “Supplemental Board” or “Supplemental Board of Directors” means the governing body of the Supplemental Association, being the Initial Supplemental Board of Directors referred to in the Supplemental Bylaws or subsequent Supplemental Board of Directors elected by the Owners in accordance with the Supplemental Bylaws. The terms “Supplemental Board” and “Supplemental Board of Directors”, as used in this Supplemental Declaration and in the Supplemental Bylaws, shall be synonymous with the term “board of directors” as used in the Act. (p) “Supplemental Bylaws” means the Code of Bylaws of the Supplemental Association providing for the administration and management of the Townhome Property as required by and in conformity with the provisions of the Act. A true and accurate copy of the Supplemental Bylaws is attached to this Supplemental Declaration as Exhibit C and incorporated herein by this reference. (q) “Supplemental Declarant” shall mean and refer to OE Veterans Way, 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 the Supplemental Declarant under this Supplemental Declaration, including, but not limited to, any mortgagee acquiring title to all or any portion of the Townhome Property pursuant to the exercise of rights under, or foreclosure of, a mortgage executed 07/12/21 4 by Supplement Declarant. A mortgagee acquiring title by virtue of foreclosure against the Supplemental Declarant does not assume the prior obligations or liabilities of the Supplemental Declarant. (r) “Townhome Lot Maintenance Obligations” shall mean those obligations of the Supplemental Association specified in Paragraph 6(b) hereof. (s) “Townhome Property” means the Parcel and the appurtenant easements, along with the Townhomes, the Buildings, garages, improvements, appurtenances, and property of every kind and nature whatsoever, real, personal, and mixed, located upon the Parcel and used in connection with the operation, use, and enjoyment of the Melange Townhomes, but expressly does not include the personal property of the Owners or their tenants. 2. Townhomes (a) Description of Buildings and Townhome Lots. There will be six (6) Buildings of three (3) and four (4) stories in height, containing a total of thirty-three (33) Townhomes on the Parcel, and as shown on Exhibit B. Supplemental Declarant shall be permitted to construct and sell Townhome Lots on a continuing basis without any requirement to construct any future Building or Buildings except as determined in Supplemental Declarant’s sole and absolute discretion. Each Townhome is identified by an individual address. (b) Real Estate Taxes. Real estate taxes are to be separately assessed and taxed to each Townhome. In the event that for any year real estate taxes are not separately assessed and taxed to each Townhome, but are assessed and taxed on the Townhome Property as a whole, then each Owner shall pay the Owner’s proportionate share of such taxes to the extent attributable to the Townhome Property as a part of the Parcel General Assessment. (c) 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 Owners. (d) Plan of Development. The Supplemental Declarant shall construct the Development in compliance with the Plan of Development, as the same may be modified or amended from time to time. 3. Limited Common Areas and Facilities. “Limited Common Areas” shall include but are not to be limited to the following areas of that are subject to this Supplemental Declaration from time to time: (a) The Townhome Property (excluding the Townhome Lots and any land where current Buildings exist or future Buildings may be constructed); (b) All landscaping islands, sidewalks and parking areas, except to the extent the same are otherwise classified and defined herein as part of the Townhome Lots; 07/12/21 5 (c) All facilities providing central electricity, gas, water supply systems, and sanitary sewer or septic systems and mains serving the Buildings; (d) Pipes, ducts, electrical wiring and conduits and public utilities lines which serve more than one Townhome Unit; (e) All streets, interior access drives, and other areas that may be designated as Limited Common Area on the Plat; (f) All real and personal property now or hereafter owned or leased by the Supplemental Association pursuant to its authority under this Supplemental Declaration and the Supplemental Bylaws; and (g) Any other portions of the Townhome 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 Townhome Lots. Each Owner of a Townhome Lot may use the Limited Common Areas in accordance with the Supplemental Bylaws, Rules and Regulations and for the purpose for which they were intended without hindering or encroaching upon the lawful rights of the other Townhome Lot Owners. In the event the Limited Common Areas are damaged or destroyed by an Owner or any Owner’s guests, tenants, licensees, agents, or family members, such Owner authorizes the Supplemental Association to repair said damaged area and the 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 Supplemental Association in the discretion of the Supplemental Association. An amount equal to the costs incurred to effect such repairs shall be assessed against such Owner and shall constitute a lien upon the Townhome Lot of said Owner. 4. Ownership of Limited Common Areas. Supplemental Declarant may, but is not obligated to, retain the legal title to the Limited Common Areas until the Parcel Applicable Date; provided, however, that the Supplemental Declarant hereby covenants that it shall convey the Common Areas to the Supplemental Association prior to or on the Parcel Applicable Date by quitclaim deed. Unless expressly stated in a recorded instrument, the Limited Common Areas shall remain private. Neither Supplemental Declarant’s execution or recording of an instrument conveying the Limited Common Areas, nor the doing of any other act by Supplemental Declarant is, or is intended to be, or shall be construed as, a dedication to the public of the Limited Common Area. Supplemental Declarant or the Supplemental Association may, however, dedicate or transfer all or any part of the Limited Common Areas to the City of Carmel for use as public rights-of-way or to a public utility for public utility purposes. 5. Townhome Owners Supplemental Association. The Supplemental Association is a Supplemental Association under the Declaration and, subject to the Declaration, shall have such powers as are set forth in the Declaration, this Supplemental Declaration and in the Supplemental Articles, and Supplemental Bylaws together with all other powers that belong to it by law. Subject to the rights of the Supplemental Declarant reserved in the Declaration and Bylaws and the obligations of the Owners, the Association shall be established for the purpose 07/12/21 6 of: (i) assessing, collecting and expending Parcel General Assessments and Special Maintenance Assessments; (ii) fulfilling the Townhome Lot Maintenance Obligations and the Exterior Maintenance Obligation; and (iii) performing such other management and administrative tasks as may be required in connection with the Limited Common Areas and the Development. Each Owner of a Townhome Lot shall, automatically upon becoming an Owner of a Townhome Lot, be and become a Member of the Supplemental Association and shall remain a Member until such time as his ownership ceases, but membership shall terminate when such person ceases to be an Owner and will automatically be transferred to the new Owner. The Supplemental Association shall elect a Supplemental Board of Directors annually (except for the Initial Supplemental Board of Directors described in the Supplemental Bylaws) in accordance with and as prescribed by the Bylaws. Each Owner shall be entitled to cast one (1) vote for the election of the Supplemental Board of Directors, except for such Initial Supplemental Board of Directors who shall serve for the period provided in the Supplemental Bylaws. Each person serving on the Initial Supplemental Board of Directors, whether as an original member thereof or as a member thereof appointed by Supplemental Declarant to fill a vacancy, shall be deemed a Member of the Supplemental Association and an Owner solely for the purpose of qualifying to act as a member of the Supplemental Board of Directors and for no other purpose. No such person serving on the Initial Supplemental Board of Directors shall be deemed or considered a Member of the Supplemental Association nor an Owner of a Townhome Lot for any other purpose (unless he is actually an Owner of a Townhome Lot and thereby a Member of the Supplemental Association). 6. Maintenance, Repairs and Replacement. (a) Maintenance by Owners. Subject to the Supplemental Association’s Townhome Lot Maintenance Obligations and Exterior Maintenance Obligations under Paragraphs 6(b) and 6(c), respectively, each Owner shall at its own expense, be responsible for the maintenance, repair, landscaping, decoration and replacement of its own Townhome Lot and all equipment serving the same, except as may otherwise be provided herein. Each Owner shall promptly perform such maintenance, repair and replacement within the Townhome Lot which, if neglected, might adversely affect the Townhome Property. In the event that the maintenance, repair or replacement of any Townhome Lot or Townhome is reasonably necessary, in the discretion of the Supplemental Association, to protect the Limited Common Areas, or to preserve the appearance or value of the Townhome Property, or is otherwise in the interest of the general welfare of the Owners, the Supplemental Board shall have the power to undertake such maintenance, repair or replacement, but no such maintenance, repair or replacement shall be undertaken without a resolution by the Supplemental Board and reasonable written notice to the Owner of the affected Townhome Lot. The cost of any such maintenance, repair or replacement shall be assessed against the Townhome Lot on which such maintenance, repair or replacement is made and when so assessed a statement for the amount thereof shall be rendered promptly to the then Owner of the Townhome Lot 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 VIII of the Supplemental Bylaws. 07/12/21 7 (b) Townhome Lot Maintenance Obligations. Subject to the receipt of Parcel General Assessments, the Supplemental Association shall provide, subject to reasonableness, and shall pay for, the following landscape maintenance and other services with respect to a Townhome Lot, but only after a Townhome has been substantially completed thereon and the Townhome Lot has been fully landscaped: (1) Periodically, mow and trim grass (if any) located on the Townhome Lot; (2) Generally remove (in the fall, at its reasonable discretion after most, if not all, have fallen) leaves from the Townhome Lot; (3) Generally remove, within a reasonable period of time taking into account weather conditions, snow which accumulates in excess of two inches (2") from the public sidewalk adjacent to a Townhome Lot, from the driveway, and from the walkways that extends from the public sidewalk or alley to the front or rear porch or deck of each Townhome on a Townhome Lot; (4) Once each year: (i) mulch and edge the planting beds located on the Townhome Lot; and, (ii) trim and edge along streets, sidewalks; and driveways; and (5) Provide for: (i) simple startup and shutdown of any irrigation system located on each Lot in the spring and fall of the year, the repair and replacement of which shall otherwise be the responsibility of the Townhome Owners of connected Townhomes in the same Building; (ii) pruning of shrubs as needed, but no more than two (2) times each year; (iii) weeding of plant mulch beds as reasonably required; and, (iv) lawn fertilization three (3) times each year and lawn weed control as reasonably required. (c) Exterior Maintenance Obligations. Subject to the receipt of Parcel General Assessments, the Supplemental Association shall provide, subject to reasonableness, and shall pay for, the following exterior maintenance with respect to, and only with respect to, a Townhome constructed on a Townhome Lot, and only following substantial completion of construction and of related improvements thereon: (1) Periodic painting and power washing of exterior doors and siding, exterior trim, decks, railings, gates and fences comprising original improvements constructed upon a Townhome Lot (or approved replacements); (2) Minor, non-structural repairs to exterior trim, exterior siding, facades, railings, gates, decks and fences comprising a part of original improvements constructed upon a Townhome Lot (or approved replacements); (3) Maintenance of (including bulb replacement) exterior free-standing lighting fixtures and exterior lighting fixtures (including floodlights) which are building mounted as a part of original construction (or approved replacements); and 07/12/21 8 (4) Any roof repairs or replacement for a Building; provided, however, the cost of the repairs may be passed through only to the Owners of Townhomes within such Building. Exterior Maintenance Obligations shall in no event include: (i) touch-up of painted surfaces between periodic repainting; (ii) door or window locks; (iii) windows or window sashes (including glass cleaning or replacement); (iv) replacement or cleaning of glass in doors; or (v) any repairs or replacements covered by insurance, or by Paragraph 9 of this Supplemental Declaration. Repairs or maintenance necessitated by a Townhome Lot Owner's own negligence, misuse or neglect may be assessed by the Association against the offending Townhome Lot Owner. When so assessed, a statement for the amount thereof shall be rendered promptly to the then Owner of the Townhome Lot 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 VIII of the Supplemental Bylaws and in Section 11 of the Declaration. (d) Parking Areas. Each Owner shall at Owner’s expense cause all driveways and parking areas on a Townhome Lot to be maintained in good repair and swept to the extent necessary to keep such areas clean of debris. (e) Limited Common Areas. Except as otherwise provided herein, all maintenance, repairs and replacements to the Limited Common Areas (except as otherwise provided in this Supplemental Declaration, a Supplemental Declaration, or the Supplemental 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 Limited Common Areas where such repair is the result of willful or negligent misuse by the Owner of its Townhome Lot or the Limited Common Areas; at the option of the Supplemental Board, the Supplemental 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 Supplemental Board, to protect the Limited Common Areas, or to preserve the appearance or value of the Townhome Property, or as otherwise may be in the interest of the general welfare of the Owners, the Supplemental 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 Townhome Lot 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 Townhome Lot 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 VIII of the Supplemental Bylaws in the event: (i) the Supplemental 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 and workmanlike standard to the reasonable satisfaction of the Supplemental Association, or (iii) Owner fails in such circumstances to carry out repairs for which Owner is responsible. The Supplemental Board of Directors may adopt rules and regulations concerning maintenance, repairs, use and enjoyment of the Townhome Development, including, without limitation, the Limited Common Areas, in accordance 07/12/21 9 with the authority granted by the Declaration and this Supplemental Declaration (the “Rules and Regulations”). (f) Owner Cooperation Required. Each Townhome Lot Owner shall cooperate with the Supplemental Association as and when needed so that the Townhome Lot Maintenance Obligations and Exterior Maintenance Obligations can be discharged safely and without any obstructions or interference which causes delays and/or increased costs. As a part of the foregoing (and without limiting the generality thereof) a Townhome Lot Owner shall not permit pets, children or activities of any kind in areas where Townhome Lot Maintenance Obligations and/or Exterior Maintenance Obligations are scheduled and/or underway, and shall not place lawn furniture, statuary ornaments or other obstructions which inhibit lawn mowing or leaf collection through the use of mechanized equipment. If obstructions or interference exist, the Supplemental Association shall have the right, at its sole option, to either: (i) suspend performance of any further Townhome Lot Maintenance Obligations or Exterior Maintenance Obligations until removed and without relieving a Townhome Lot Owner from the continuing obligation to pay General Maintenance and other assessments as and when due; or (ii) proceed and assess the increase in cost for payment, and when so assessed a statement for the amount thereof shall be rendered promptly to the then Owner of the Townhome Lot 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 VIII of the Supplemental Bylaws and in Section 11 of the Declaration. (g) Right of Access and Entry. Supplemental Declarant hereby reserves in favor of the Supplemental Association and the Managing Agent a permanent, non- exclusive easement over, across, upon, along, in through the Townhome Property (inclusive of all Townhome Lots) for purposes of performing the maintenance, repair and replacement contemplated by this Paragraph 6. Such maintenance and repair shall be performed at reasonable times and upon reasonable prior notice to the affected Owners (except in cases of emergency in which event no notice shall be required). 7. Alterations, Additions and Improvements. Except as may be otherwise provided in this Supplemental Declaration or the Supplemental Bylaws, no Owner shall without the prior written approval of the Supplemental Board of Directors make any material alterations or additions (a) to any Limited Common Areas; (b) to the exterior of Owner’s respective Townhome or garage; or (c) to the interior of the Owner’s Townhome, if such interior alteration would affect the safety or structural integrity of the Building in which the Townhome is located. As of the date of the execution of this Supplemental Declaration, the Parcel consists of the Land. Additional Real Estate (as defined in the Declaration) may be added to the Parcel only upon the consent of the Supplemental Declarant. Any portion of Additional Real Estate added to the Parcel shall become a part of the Parcel and subject in all respects to this Supplemental Declaration and all rights, obligations and privileges herein, when Supplemental Declarant places of record in Hamilton County, Indiana, an instrument so declaring the same to be part of the Parcel, which instrument may be a declaration of annexation contained in an amendment or restatement of the Plat, a statement in a plat that he townhome Lot and Limited Common Areas therein are subject to the Supplemental Declaration or an amendment or supplement to this Supplemental Declaration. Upon recording of any such instrument on or before the Parcel 07/12/21 10 Applicable Date, the real estate described therein shall, for all purposes, thereafter be deemed for all purposes to have and be subject to all of the rights, duties, privileges, and obligations of Owners and Townhome Lots within the Parcel. Except as otherwise provided in this Supplemental Declaration, no portion of the Land or any Additional Real Estate added to the Parcel as provided above shall be withdrawn from the Parcel except upon the consent of Supplemental Declarant. 8. Assessments. The Parcel Assessments described in this Supplemental Declaration are in addition to Assessments imposed under the Declaration and unless and until otherwise directed in writing by the Master Board, the Supplemental Association shall be responsible not only for collecting all Assessments specified in this Supplemental Declaration, but also for collecting the General Assessment. (a) Parcel General Assessment. In order to provide money to fund the Townhome Lot Maintenance Obligations and Exterior Maintenance Obligations, establish a reserve fund, and provide for the operation of the Supplemental Association, each Owner of a Townhome shall also be assessed and shall pay Parcel General Assessments in accordance with Article VIII of the Supplemental Bylaws. The Parcel General Assessment shall be subject to any limitations set forth in the Declaration. The Parcel General Assessment is distinct from the General Assessment under the Declaration. (b) Special Assessments. In addition to the Parcel General Assessment authorized above, the Supplemental Board may levy a Special Assessment against Townhome Lots in any calendar year applicable to that year only, for the purpose of defraying, in whole or in part, the cost of any construction, reconstruction, repair or replacement of any capital improvement which the Supplemental Association is required to maintain, or to recover any operating deficits which the Supplemental Association may from time to time incur, provided that any such assessment shall comply with and have the approval of Owners as provided in Article VIII of the Supplemental Bylaws. (c) Creation of the Lien. Supplemental Declarant for each Townhome Lot and each Townhome located thereon, hereby covenants, and each owner of any Townhome 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 Supplemental Association: (i) Parcel General Assessments; (ii) Special Assessments; and (iii) other amounts assessable as provided for herein and in the Supplemental Bylaws; such assessments to be established and collected as provided in the Supplemental Bylaws. All such assessments, together with interest, costs, and reasonable attorney’s fees, shall be a charged on the Townhome Lot and shall be a continuing lien upon each Townhome Lot. Each such assessment, together with interest, costs, and reasonable attorney’s fees shall also be the personal obligation of the person who was the Owner of a Townhome at the time when the assessment fell due. The personal obligation for delinquent assessments shall not pass to his successors in title unless expressly assumed by them. 9. Party Walls 07/12/21 11 (a) Generally. Each wall which is built as a part of the original construction of a grouping of connected Townhomes in a Building and placed on the dividing line between individual Townhome Lots into which subdivided shall constitute a party wall (“Party Wall”), and, to the extent not inconsistent with the provisions of this Paragraph, the general rules of Indiana law regarding party walls and liability for property damage due to negligence or willful acts or omissions shall apply thereto. (b) Sharing of Repair and Maintenance. The cost of routine repair and maintenance of a Party Wall shall be shared equally by the Owners who make use of the Party Wall. If any such Party Wall is damaged or destroyed by fire or other casualty or by some cause other than the act of one of the adjoining Owners, its agents, family, household or guests (including ordinary wear and tear and deterioration from lapse of time), then in such event both such adjoining Owners shall proceed to rebuild or repair the structural components of such Party Wall, sharing equally the cost thereof, and each individual Owner shall proceed to rebuild or repair the non-structural components of such Party Wall in proportion of their respective uses of the Party Wall. Any and all such reconstruction and/or repairs shall be completed immediately to the extent that the failure to commence and/or complete such reconstruction and/or repairs would result in an immediate risk to human health and/or safety. All other reconstruction and/or repairs shall commence and proceed to completion as soon as practical, and in any event within ninety (90) days following the casualty or other event that damaged or destroyed such Party Wall, unless a longer period of time is approved by the Supplemental Board. If the damage is of such a nature that it has resulted, or will (if left uncorrected) result in damage or destruction of a Party Wall, the reconstruction and/or repairs shall commence and proceed to completion as soon as practical, and in any event within one hundred eighty (180) days following initial discovery. Any and all such reconstruction and/or repair shall be made in compliance with all requirements of local governing authorities and otherwise in compliance with all applicable laws to the same or better condition as existed prior to such damage or destruction. (c) Damage Caused by One Owner. If a Party Wall is damaged or destroyed through the act of one or more adjoining Owners, or their respective agents, families, household members or guests (collectively the “Offending Parties”), whether or not such act is intentional, inadvertent, negligent or otherwise, so as to deprive another adjoining Owner of the full use and enjoyment of a Party Wall, then the Owner(s) of the Townhome(s) associated with the Offending Parties, shall forthwith proceed to rebuild and restore the same in the manner and within the time otherwise required under Paragraph 9(c) above, without cost to any adjoining Owner who is not an Offending Party . (d) Other Changes. In addition to meeting the other requirements imposed by this Paragraph 9 and of any building code or similar regulation or ordinance, any Owner proposing to modify, make additions to or rebuild a Townhome in any manner which requires the extension of or any other alteration to a Party Wall shall, before proceeding with any work in connection therewith: (i) submit detailed plans of the modifications or additions proposed (the “Plans”) to, and obtain the written approval of, the Supplemental Association pursuant to the process set forth in the Supplemental Bylaws; and, (ii) upon 07/12/21 12 receipt of approval from the Supplemental Association, also obtain the written approval of all adjoining Owners, whose approval shall not be unreasonably withheld. If an adjoining Owner has not responded in writing to a request for approval within thirty (30) days following receipt of a written request (together with the required Plans as approved by the Supplemental Association), given by registered or certified mail, return receipt requested, the approval thereof shall be deemed given as otherwise required herein. (e) Right to Contribution Runs with Land. The right of any Owner to contribution from any other Owner under this Paragraph 9 shall be appurtenant to the real estate comprising each Townhome Lot and shall pass to such Owner's successors in title. (f) Disputes. In the event of a dispute between Owners with respect to the repair or rebuilding of a Party Wall or with respect to the sharing of the cost thereof, then, upon the written request of one or more of such Owners addressed to the Supplemental Association, the matter shall be submitted to the Supplemental Board, who shall decide the dispute after notice to all affected Owners, and the opportunity to be heard pursuant to rules adopted and published by the Supplemental Board. 10. RESERVED. 11. Insurance. The Owners, through the Supplemental Association, shall purchase a master casualty insurance policy affording fire and extended coverage insurance insuring the Townhome Property in an amount consonant with the full replacement value of the improvements, which, in whole or in part, comprise the Limited Common Areas. If the Supplemental Board of Directors can obtain such coverage for reasonable amounts, they shall also obtain “all risk” coverage. The Supplemental Board of Directors shall be responsible for reviewing at least annually the amount and type of such insurance and shall purchase such additional insurance as is necessary to provide the type of insurance required above. If deemed advisable by the Supplemental Board of Directors, the Supplemental 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 such terms and conditions as may be established by the Supplemental Board of Directors. The proceeds of such policies shall be used or disbursed by the Supplemental Association or Supplemental Board of Directors, as appropriate, only in accordance with the provisions of this Supplemental Declaration. The premiums for all such insurance described above shall be paid by the Supplemental Association as part of the Common Expenses. Notwithstanding anything to the contrary contained in this Supplemental Declaration, each and every Owner shall maintain a casualty insurance policy affording fire and extended coverage insurance insuring the Townhome in an amount equal to the full replacement value of the improvements which in whole or in part, comprise the Townhome, including, without limitation any Party Wall. Such insurance shall provide for payment of the losses thereunder by the insured to the Supplemental Association or its nominees, insurance trustee for the benefit of each owner, the holder of each first mortgage of record thereon, and the Supplemental Association as their interests appear. Proceeds received by the insurance trustee shall be used to repair, reconstruct or rebuild the Townhomes damaged or destroyed by fire or other casualty 07/12/21 13 unless the Townhome Owners agree not to repair, reconstruct, or rebuild pursuant to Section 12 below. Each Owner of each Townhome Lot and/or Townhome will furnish to the Supplemental Association, at or prior to the closing of said Owner’s acquisition of such Townhome Lot or Townhome, a certificate of insurance, in form and content acceptable to the Supplemental Association, evidencing the insurance coverage described herein. Each such Owner shall, prior to the expiration of the term of any such insurance policy, procure and deliver to the Supplemental Association a renewal or replacement policy in form and content acceptable to the Supplemental Association. If any Owner fails to provide evidence of such coverage satisfactory to the Supplemental Association, the Supplemental Association will have the right, but not the obligation, to procure such coverage at the expense of the applicable Owner, and the cost of procuring such insurance will be assessed to that Owner as a Special Assessment and shall be immediately due and payable upon demand. 12. Casualty and Restoration. (a) Obligation to Restore. Except as hereinafter provided, damage to or destruction of any Building due to fire or other casualty or disaster shall be promptly repaired and reconstructed by the Supplemental Association and the proceeds of insurance, including those received for Townhome policies as insurance trustee, if any, shall be applied for that purpose; provided, however, that repair and reconstruction shall not be compulsory in the event of “complete destruction of all of the Buildings” (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 Buildings” means a determination made by a vote of two-thirds (2/3) of all Owners at a special meeting of the Supplemental Association called for the purpose of making such determination, that complete destruction of all of the Buildings has occurred. A special meeting of the Supplemental 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. 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 all of the Buildings, and the Supplemental 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 Townhome or any part of the Limited Common Areas, the affected Mortgagee or Mortgagees shall be given timely written notice of such damage or destruction. (d) Insufficient Insurance Proceeds. If the insurance proceeds, if any, received by the Supplemental Association (whether directly or as insurance trustee) 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 07/12/21 14 Townhome Property is not removed from the Act, the cost for restoring the damage and repairing and reconstructing the Building (or the costs in excess of insurance proceeds received, if any) shall be paid by all of the Owners of the affected Townhomes equally. 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 Supplemental Association that there has been a complete destruction of the Building, the Owners shall, at the same special meeting, vote to determine whether or not such complete destruction of the Building shall be repaired and reconstructed. The Building shall not be reconstructed or repaired unless the Owners at said special meeting by a vote of two-thirds (2/3) of all of the Owners determine to repair and reconstruct the Building. If two-thirds (2/3) of all of the Owners decide that the Building is to be rebuilt, reconstructed, and repaired, the insurance proceeds, if any, received by the Supplemental Association shall be applied and any excess of construction costs over insurance proceeds, if any, received by the Supplemental 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) Cost Estimates for Repair. Immediately after a fire or other casualty causing damage to any property for which the Supplemental Board of Directors or the Association has the responsibility of maintenance and repair, the Supplemental 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 Supplemental Board of Directors desire. (h) Construction Fund. The proceeds of insurance collected on account of any such casualty, and the sums received by the Supplemental Board of Directors from collections of 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 Supplemental 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 07/12/21 15 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 Supplemental 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) 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 Supplemental 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 Supplemental 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. 13. Covenants and Restrictions. The covenants and restrictions applicable to the use and enjoyment of the Townhome Lots are set forth in the Supplemental Bylaws. These covenants and restrictions are incorporated herein by reference, and are for the mutual benefit and protection of the present and future Owners and shall run with the Parcel and inure to the benefit of and be enforceable by any Owner, the Owners or by the Supplemental Association. Present or future Owners shall be Members of the Supplemental Association and shall be 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 Supplemental Bylaws, but there shall be no right of reservation or forfeiture of title resulting from such violation. In addition to the foregoing, each Owner shall undertake reasonable efforts in good faith and with due diligence to cause Occupants of the Townhomes on its Townhome Lot to comply with the Declaration, this Supplemental Declaration, and all applicable rules and regulations duly adopted by the Corporation or the Supplemental Association. 14. Amendment. Except as otherwise provided in this Supplemental Declaration, amendments to the Supplemental 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. 07/12/21 16 (b) Resolution. A resolution to adopt a proposed amendment may be proposed by the Supplemental Board of Directors or by a Majority of Owners. (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 Supplemental Bylaws. (d) Adoption. Subject to the provisions of the Supplemental Bylaws and the rights of Supplemental Declarant described therein, any proposed amendment to this Supplemental Declaration must be approved by a vote of not less than seventy-five percent (75%) in the aggregate of the vote of the Owners, with each Owner entitled to one (1) vote. In the event any Townhome Lot 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 Supplemental Board of Directors in accordance with the provision of the Supplemental Bylaws. (e) Special Amendments. Subject to the rights reserved to Supplemental Declarant in this Supplemental Declaration, no amendment to this Supplemental Declaration shall be adopted which changes (i) the voting interest of any Owner or the applicable share of any Owner’s liability for Common Expenses without the approval of one hundred percent (100%) of the Owners and all Mortgagees whose mortgage interests have been made known to the Supplemental Board of Directors in accordance with the provisions of the Supplemental Bylaws; or (ii) the provisions of Paragraph 11 of this Supplemental 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 Supplemental Board of Directors in accordance with the provisions of the Supplemental Bylaws. (f) Recording. Each amendment to the Supplemental Declaration shall be executed by either the duly authorized representative of the Supplemental Declarant or (if applicable) the President and Secretary of the Association, and recorded in the Office of the Recorder of Hamilton County, Indiana, and such amendment shall not become effective until so recorded. (g) Amendments by Supplemental Declarant Only. Notwithstanding the foregoing or anything elsewhere contained herein, the Supplemental Declarant shall have the right acting alone and without the consent or approval of the Owners, the Supplemental Association, the Supplemental Board of Directors, any Mortgagees or any other person at any time prior to the Parcel Applicable Date to unilaterally amend and revise (i) the standards, covenants and restrictions contained in this Declaration and (ii) any and all exhibits attached to this Supplemental Declaration, unless the amendment of a particular provision of this Supplemental Declaration is explicitly prohibited by this Supplemental Declaration. Such amendments shall be in writing, executed by Supplemental Declarant, and recorded with the Recorder of Hamilton County, Indiana. If Supplemental Declarant, acting in good faith and in the exercise of its reasonable judgment, determines that the basis for the Parcel General Assessment set forth in this 07/12/21 17 Supplemental Declaration does not equitably, and reasonably, distribute the costs of improving, maintaining, repairing, replacing or operating the Common Area, Supplemental Declarant in its discretion may unilaterally modify such basis for the Parcel General Assessment to provide for an equitable and reasonable distribution of such costs. (h) Approvals by Supplemental Declarant. Notwithstanding any other provisions hereof, prior to the Parcel Applicable Date, the following actions shall require the prior approval of Supplemental Declarant: the addition of real estate to the Parcel; mortgaging of the Limited Common Area; amendment of this Supplemental Declaration; and changes in the basis for assessment pursuant to this Supplemental Declaration or the amount, use and time of payment of assessments. 15. Acceptance and Ratification. All present and future Owners, Mortgagees, tenants, and occupants of the Townhome Lots shall be subject to and shall comply with the provisions of this Supplemental Declaration, the Act, the Supplemental Bylaws, and the Rules and Regulations as adopted by the Supplemental 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 Townhome Lot shall constitute an agreement that the provisions of this Supplemental Declaration, the Act, the Supplemental 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 running with the land and shall bind any person having at any time any interest or estate in a Townhome Lot or the Townhome 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 Townhome Lot or Lots or any part of the Townhome Property in any manner shall be subject to the applicable Supplemental Declaration, the Act, the Supplemental 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 Townhome Lot or Lots or any part of the Townhome 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. 16. Granting of Easements. Supplemental Declarant is granted the authority to grant easements to utility companies upon such terms and conditions and for such consideration as it deems appropriate. Such easements shall not conflict with any easements granted pursuant to the Declaration. 17. Reservation of Rights to the Use of the Limited Common Areas. Supplemental Declarant shall have, and hereby reserves, an easement over, across, upon, along, in through an under the Limited Common Areas for the purposes of installing, maintaining, repairing, replacing, relocating and otherwise servicing utility equipment facilities and installations to serve the Townhome Property, to provide access to and ingress and egress to and from the Townhome Property, to make improvements to and within the Townhome Property, and to provide for the rendering of public and quasi-public services to the Townhome Property. 07/12/21 18 18. Easements 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, Townhome Lots, 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 Townhome Property; provided, however, nothing in this Supplemental Declaration shall permit the installation of sewers, electric lines, water lines, telephone lines, cable television lines, or other utilities, except as subsequently may be approved Supplemental Declarant (prior to the Parcel Applicable Date) or by the Supplemental Board of Directors (following the Parcel Applicable Date). 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 Buildings. 19. Initial Management. As set forth in the Supplemental Bylaws, the Initial Supplemental Board of Directors consists and will consist of persons selected by the Supplemental Declarant. Such Supplemental Board of Directors may enter into a management agreement with Supplemental Declarant (or a corporation or other entity affiliated with Supplemental Declarant) or a third party under which the management company will provide supervision, fiscal and general management and maintenance of the Limited Common Areas, and in general, perform all of the duties and obligations of the Supplemental Association. Notwithstanding anything to the contrary contained herein, prior to the Parcel Applicable Date, Supplemental Declarant shall have, and Supplemental Declarant hereby reserves to itself (either through a management company or otherwise), the exclusive right to manage the Townhome Property and to perform all the functions of the Supplemental Association. 20. 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 Supplemental Declaration, the Supplemental Bylaws, or the Rules and Regulations adopted pursuant to the Supplemental Bylaws, as each may be amended from time to time, the Supplemental Association shall be entitled to recover its costs and reasonable attorneys’ fees incurred in connection with such default or failure. 21. Severability. The invalidity of any covenant, restriction, condition, limitation or other provisions of this Supplemental Declaration or the Supplemental Bylaws shall not impair or affect in any manner the validity, enforceability, or effect of the rest of this Supplemental Declaration or the Supplemental Bylaws. 22. Enforcement. The provisions of this Supplemental Declaration, the Supplemental Bylaws, the Articles of Incorporation, or the Act may be enforced by the Supplemental Association or by any aggrieved Owner through court proceedings for injunctive relief, for damages or for both. 07/12/21 19 23. Construction. 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. [REMAINDER OF PAGE INTENTIONALLY BLANK.] 07/12/21 IN WITNESS WHEREOF, the undersigned Supplemental Declarant has caused this Declaration to be executed as of the day and year first above written. SUPPLEMENTAL DECLARANT OE VETERANS WAY, LLC, an Indiana limited liability company By: Onyx and East, LLC, its Sole Member By: ____________________________ Printed: ___________________________ Title: ____________________________ EXECUTED and DELIVERED in my presence: ______________________________________ Printed: _______________________________ STATE OF INDIANA ) ) SS: COUNTY OF ____________) Before me, a Notary Public in and for such County and State, personally appeared _____________________, the _________________________ of Onyx and East, LLC, the Sole Member of OE Veterans Way, LLC, 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: _________________ 07/12/21 21 STATE OF INDIANA ) ) SS: COUNTY OF ____________) Before me, a Notary Public in and for said County and State, personally appeared ____________ [Witness 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 Commission Expires:_________________ County of Residence: _________________ This instrument prepared by 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] 07/12/21 EXHIBIT A Parcel 07/12/21 EXHIBIT B Depiction of Townhome Property 07/12/21 EXHIBIT C Code of Bylaws [See attached.] 3085859-2 (12960-0025) 07/12/21