HomeMy WebLinkAboutRecorded CCRs 11-19-212021083635 DECL $25.00
11/19/2022 02:43:39P 44 PGS
Jennifer Hayden
HAMILTON County Recorder IN
Recorded as Presented
__IIIIIIIIIIIILIIII IIIIIIIIII1111111111IIIII1111111111111111111111111111 --
DECLARATION OF COVENANTS,
EASEMENTS, CONDITIONS, RESTRICTIONS AND ASSESSMENTS FOR
THE COURTYARDS OF CARMEL
C
PY
INDEX
ITEM PAGE
Article I.
APPLICABILITY..........................................................................................2
Article II.
DEFINITIONS...............................................................................................3
ArticleIII.
GOALS..........................................................................................................7
Article IV.
USE RESTRICTIONS...................................................................................8
A.
Use of Residential Lots....................................................................................8
B.
Use of Common Elements...............................................................................8
C.
Hazardous Actions or Materials......................................................................9
D.
Signs................................................................................................................9
E.
Animals............................................................................................................9
F.
Nuisances.......................................................................................................10
G.
Business.........................................................................................................10
H.
Storage...........................................................................................................10
1.
Hotel/Transient Uses; Leases........................................................................10
J.
Vehicles.........................................................................................................10
K.
Trash..............................................................................................................
I I
L.
Antennae........................................................................................................12
M.
Utility Lines...................................................................................................12
N.
Tanks.............................................................................................................12
O.
Fencing..........................................................................................................12
P.
Swimming Pools............................................................................................12
Q.
Compliance with Zoning Requirements........................................................12
R.
Miscellaneous................................................................................................13
S.
Occupancy Restriction...................................................................................13
Article V.
ARCHITECTURAL STANDARDS...........................................................14
A.
Design Review Committee............................................................................14
B.
Modifications.................................................................................................14
C.
Variances.......................................................................................................15
D.
Improvements by Declarant...........................................................................15
E.
Liability Relating to Approvals.....................................................................15
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Article VI. EASEMENTS AND LICENSES..................................................15
A.
Easement of Access and Enjoyment Over Common Elements.....................16
B.
Courtyard Easements.....................................................................................16
C.
Right of Entry for Repair...............................................................................17
D.
Easement of Access over Sidewalks.............................................................17
E.
Easement for Utilities and Other Purposes....................................................17
F.
Easement for Services...................................................................................17
G.
Easement to the Association for Maintenance..............................................18
H.
Easements on Plats........................................................................................18
I.
General...........................................................................................................18
Article VII.
ASSOCIATION MEMBERSHIP AND VOTING RIGHTS.......................18
A.
Mandatory Membership................................................................................18
B.
Governance....................................................................................................19
C.
Powers; Authorities; Duties...........................................................................19
Article VIII.
RIGHTS AND OBLIGATIONS OF THE ASSOCIATION .......................19
A.
Common Elements........................................................................................19
B.
Personal Property and Real Property for Common Use................................20
C.
Cost -Sharing Agreements..............................................................................20
D.
Rules and Regulations...................................................................................21
E.
Implied Rights...............................................................................................21
F.
Managing Agent............................................................................................21
G.
Insurance........................................................................................................21
1. Fire and Extended (Special Form) Coverage...................................21
2. Liability Coverage............................................................................22
3. Directors' and Officers' Liability Insurance....................................22
4. Other................................................................................................. 22
5. Use of Proceeds................................................................................23
6. Declarant Coverage..........................................................................23
H. Condemnation ..................
iii
...23
Article IX.
ASSESSMENTS..........................................................................................23
A.
Operating Fund..............................................................................................23
B.
Types of Assessments....................................................................................23
C.
Operating Assessments..................................................................................24
D.
Special Assessments......................................................................................26
E.
Individual Residential Lot Assessments........................................................26
F.
Remedies.......................................................................................................27
1. Acceleration.....................................................................................27
2. Late Charge......................................................................................27
3. Application of Payments..................................................................27
4. Liability for Unpaid Assessments....................................................27
5. Liens.................................................................................................28
6. Subordination of Lien......................................................................28
7. Contested Lien.................................................................................28
8. Estoppel Certificate..........................................................................29
9. Vote on Association Matters; Use of Common Elements ...............29
Article X.
MAINTENANCE........................................................................................29
A.
Maintenance of Common Elements by Association......................................29
B.
Lawn Mowing and Snow Removal on Residential Lots...............................29
C.
Landscape Maintenance on Residential Lots................................................30
D.
Maintenance by Owner..................................................................................30
E.
Right of Association to Repair Lot................................................................31
F.
Damage to Common Elements By Owner or Occupant................................31
Article XI.
MISCELLANEOUS....................................................................................31
A.
Term...............................................................................................................31
B.
Enforcement; Waiver.....................................................................................31
C.
Amendments..................................................................................................32
1. Amendments by Declarant...............................................................32
IV
2. Amendments by the Association......................................................32
3. Amendments by the Board ..........................................
D. Declarant's Rights to Complete Development .........................
E. Declarant's Rights to Re -plat Declarant's Property .................
F. Mortgagee Rights.....................................................................
G. Severability...............................................................................
H. Mutuality..................................................................................
I. Captions....................................................................................
J. Notices......................................................................................
K. Exhibits.....................................................................................
L. Construction..............................................................................
EXHIBIT A — LEGAL DESCRIPTION OF THE PROPERTY
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EXHIBIT B - SECONDARY PLAT OF THE COURTYARDS OF CARMEL SECTION 1
v
DECLARATION OF COVENANTS, EASEMENTS,
CONDITIONS, RESTRICTIONS AND ASSESSMENTS
FOR
THE COURTYARDS OF CARMEL
THIS DECLARATION OF COVENANTS, EASEMENTS, CONDITIONS,
RESTRICTIONS AND ASSESSMENTS (this "Declaration") is made as of the Lday of
f � oy cy,� er , 2021, by EPCON CARMEL, LLC, an Indiana limited liability company
("Declarant").
A. Declarant is the owner of the real property more fully described in Exhibit A
attached to this Declaration and by this reference incorporated herein (the "Property" as defined
hereinafter).
B. Declarant desires to develop and is developing the Property into a residential
subdivision known as The Courtyards of Carmel (hereinafter the "Community"), and desires
hereby to and does restrict the use and occupancy of the Property for the protection of the Property
and the future owners of the Property and to provide for the preservation of the values of and
amenities in The Courtyards of Carmel for the benefit of the present and future Owners of the
subdivision Lots and the Improvements constructed on them.
C. Declarant desires that all of the Property be encumbered with the covenants,
easements, conditions and restrictions set forth in this Declaration, which covenants, easements,
conditions and restrictions shall run with the land consisting ofthe Property and be binding on all parties
having any right, title or interest in the Property, or any part thereof, their heirs, successors and
assigns, including the future Owners of any Lot subject to the provisions of this Declaration, the
Declarant, the Declarant's successors and assigns, and any utility companies, whether public or
private, who are granted rights herein.
D. Located contiguous to or near the Community is property that has been or in the
future may be developed as an extension of The Courtyards of Carmel with subdivision lots for
homes and other improvements to be built on them, and additional landscaped, green areas and/or
other amenities and improvements, and subjected to the plan and restrictions created hereby. This
property is referred to herein as the "Additional Property".
E. Declarant deems it desirable for the accomplishment of these objectives to create
an association to which is delegated and assigned the non-exclusive right and obligation to
administer and enforce the provisions hereof, to own and/or maintain various properties, to have
easement rights with respect to certain property, to administer such property, and to collect and
disburse funds necessary to accomplish these objectives. Accordingly, Declarant shall cause to be
incorporated The Courtyards of Carmel Homeowners' Association, Inc. (the "Association"), as a
nonprofit corporation, under and pursuant to the laws of Indiana, whose Members are and will be
all of the Owners of a Residential Lot or Residential Lots in the Community (as defined in this
1
Declaration), as the same may be comprised from time to time.
COVENANTS, EASEMENTS, CONDITIONS,
RESTRICTIONS AND ASSESSMENTS
NOW, THEREFORE, in pursuance of a general plan for the protection, benefit and mutual
advantages of the property in the Community, Declarant, with respect to the Property described on
Exhibit A of this Declaration, hereby declares that all of the Property (currently being all of the
property described on Exhibit A to this Declaration) shall be held, sold, conveyed and occupied:
(i) subject to the following covenants, easements, conditions and restrictions which are set forth in
this Declaration; and (ii) pursuant to the Indiana HOA Act, all of which are for the purpose of
protecting the values and desirability of, and which shall run with the title to, each part of the
Community, and be binding on all parties having any right, title or interest therein, and each part
thereof, and their respective heirs, successors and assigns, and shall inure to the benefit of and be
enforceable by Declarant, each Owner of property in the Community, the Association, and the
respective personal representatives, heirs, successors and assigns of each:
Article I. APPLICABILITY
This Declaration shall initially apply to the entire Property as described on the attached
Exhibit A. If Declarant owns, and/or acquires Additional Property adjacent to or near the Property,
intended by Declarant for future development, generally consistent with the development of the
Community, Declarant may add said Additional Property to, and declare such Additional Property
to be, subsequent phases of the Community. Upon such addition, Declarant shall have the right,
but not the obligation, in Declarant's sole and absolute discretion, to subject such Additional Property
to the terms and conditions of this Declaration. Declarant may subject Additional Property to this
Declaration without modification, or Declarant may supplement and/or amend this Declaration as
it applies to such additional phases of development. As to each development phase of the
Community, Declarant may re-record this Declaration with an attached exhibit which modifies
and/or supplements this Declaration with respect to such phase, or Declarant may incorporate this
Declaration by reference into a supplemental declaration or an amendment or supplement to this
Declaration which establishes the modifications and/or supplemental provisions desired by
Declarant to be applicable to such phase. The modifications and/or supplemental provisions
applicable to different phases of development at the Community may be comparable to, the same,
more restrictive or less restrictive than the parallel provisions applicable to other development
phases, as determined to be appropriate by Declarant in the exercise of its sole discretion. In the
event of any inconsistency between the provisions of this Declaration and the provisions of any
phase -specific modifications and/or supplements or amendments to this Declaration, the terms of
the phase -specific document shall control.
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Article II. DEFINITIONS
The following terms used in this Declaration shall have these meanings, unless the context
requires otherwise:
A. "Additional Property" — property that may in the future be subjected to the plan for
the Community provided hereby and be subjected to the terms of this Declaration (all in
accordance with Article I), and consists of such other property as Declarant, in its sole discretion,
may from time to time determine and designate as Additional Property.
B. "Articles" and "Articles of Incorporation" — the Articles of Incorporation when
filed with the Secretary of State of Indiana, incorporating The Courtyards of Carmel Homeowners'
Association, Inc. (the "Association") as a nonprofit corporation under the Indiana Nonprofit
Corporation Act of 1991, as amended.
C. "Assessments" — charges levied by the Association on Residential Lots and their
Owners, consisting of Operating Assessments, Special Assessments, and Individual Residential
Lot Assessments.
D. "Association" — an association of all of the Owners of Residential Lots in the
Community, at any time, except Owners of Exempt Property with respect to that property. The
Association is being incorporated as an Indiana nonprofit corporation named The Courtyards of
Carmel Homeowners' Association, Inc., or similar, and its successors and assigns, which
Association is also "Homeowners association" as that term is defined in the Indiana HOA Act.
E. "Association Governing Documents" — the Association's Articles of Incorporation,
the By -Laws, and Rules and all amendments thereto, this Declaration and all amendments and/or
supplements thereto, any supplemental declaration and all amendments or supplements thereto,
applicable building and zoning laws and ordinances, and any recorded plats for the Community.
F. "Board" and "Board of Directors" — the board of directors or other management
body of the Association.
G. `By -Laws" — The Code of By -Laws for the Association, providing certain operating
rules and procedures for the Association, as the same may be amended from time to time. The initial
By -Laws shall be adopted by the initial Board of Directors that are selected by Declarant pursuant
to Article VII(B).
H. "Common Elements" — all real and personal property now or hereafter acquired by
the Association, or benefited by easement to it, pursuant to the provisions hereof, or otherwise,
for the common use and the enjoyment of the Owners, or for the operation of the Association.
The Common Elements may include, without limitation, open spaces, reserve areas, entranceway
and community border features, walking trails, detention areas, bank/cluster mailbox(s), a
clubhouse, if any, an outdoor swimming pool, if any, and other property designated by Declarant
or the Board (as the Board will be constituted following the Turnover Date) to be Common
Elements, and benefiting the Owners and Occupants of the Lots and Improvements in the
Community. Upon conveyance to the Association, the Common Elements will include, but not be
limited to, Block "A", C.A. #1-1, C.A. #1-2, and C.A. #1-3, respectively, as described in the plat that
will be recorded with the Recorder's Office of Hamilton County, Indiana entitled "Secondary Plat
of the Courtyards of Carmel Section 1" attached to this Declaration as Exhibit B (the "Section 1
Plat"), and by this reference incorporated herein, and may include additional areas in the future.
I. "Common Expense" — an expense incurred in owning, maintaining, improving or
operating the Common Elements; in performing maintenance, repair and replacement obligations
of the Association pursuant to the Association Governing Documents, applicable zoning
regulations, approved plats, recorded easements or any agreement entered into by the Declarant
or the Board on behalf of the Association; or in operating the Association pursuant to the
provisions of the Association Governing Documents and the Indiana HOA Act.
J. "Community" or "The Courtyards of Carmel" — all property that at any time has
been subjected to the provisions of this Declaration, initially including all of the Property
described in Exhibit A attached to this Declaration, and will include all property subjected to the
provisions of the Declaration by amendment or supplement to the Declaration or by supplemental
declaration, in accordance with Article I, and all property owned by the Association (including
the Common Elements), together with all easements and appurtenances.
K. "Courtyard Easement" — means an easement located on a Courtyard Lot and
benefitting a contiguous Courtyard Lot, or Courtyard Lots, and the owners thereof and permitting
and providing for the construction, reconstruction, maintenance, repair, replacement and use of an
enclosed courtyard area and the improvements within that area, including, but not limited to, patios,
porches, fire pits, water features, and landscaping. The Courtyard Easement area on a Courtyard
Lot is an area bounded generally by the side of the Dwelling located on that Courtyard Lot, fences
extending to and from the Dwelling on that Courtyard Lot and the Dwelling or another fence on
the adjacent contiguous Courtyard Lot, or Courtyard Lots, to which the fences extend, and the
property boundary line between the contiguous Courtyard Lots all as initially constructed by
Declarant and/or shown on a recorded plat of the Community.
L. "Courtyard Lot" — a Lot on which a Courtyard Easement is located or which is
benefitted by a Courtyard Easement and includes Lots 1-7, both inclusive, as designated on the
Section 1 Plat and such other Lots in the Community that are designated by Declarant to be
Courtyard Lots. Each Courtyard Lot is also a Lot and a Residential Lot.
M. "Declarant" — Epcon Carmel, LLC, an Indiana limited liability company, and any
successor or assignee to which it specifically assigns any of its rights and which assumes its
obligations hereunder by a written instrument which is recorded in the Recorder's Office of
Hamilton County, Indiana.
N. "Declaration" — this instrument, by which the Property is hereby submitted to the
provisions hereof, as the same may be amended or supplemented from time to time.
O. "Design Review Committee" — the committee appointed by the Board to have the
power and authority to establish and enforce architectural standards governing the construction
of, and all subsequent modifications, additions or alterations to, Improvements in the Community
and to review, approve or disapprove the same.
P. "Dwelling" or "Residence" — an Improvement on a Residential Lot intended
exclusively for occupancy as a single-family home and purposes customarily incidental thereto.
Q. "Exempt Property" — means the portion of the real property within the Community
(1) now or hereafter dedicated to common public use or owned by the United States, the State of
Indiana, any County, Village, City, Township, school board, or similar governmental body, or any
instrumentality or agency or any such entity, for so long as any such entity or any such
instrumentality or agency shall be the owner thereof, or (2) owned by the Association; provided in
either such case, the same is not utilized as a Residence.
R. "Improvements" — all man made or man installed alterations to the Property which
cause the Property to deviate from its natural condition, including, but not limited to, single-family
homes, Dwellings, buildings, outbuildings, sheds, garages and other structures; overhead,
aboveground and underground installations, including, without limitation, utility facilities and
systems, lines, pipes, wires, towers, cables, conduits, poles, antennae and satellite dishes;
flagpoles; swimming pools, hot tubs, and spas; sport and recreational courts, fixtures and
facilities, including basketball hoops, and lacrosse and soccer goals; children's recreational
equipment or structures, including playground equipment, swing -sets, playhouses, tree houses
and forts; pet houses, runs, and enclosures; changing of colors or materials; exterior
ornamentations; exterior lighting; slope and drainage alterations; roads, driveways, uncovered
parking areas and other such areas; fences, mailboxes, trellises, walls, retaining walls, exterior
stairs, decks, patios and porches and walkways; planted trees, hedges, shrubs and other forms of
landscaping; and all other structures or improvements of every type.
S. "Indiana HOA Act" - The Indiana Homeowners Association Act (Ind. Code § 32-
25.5, et. seq.), as may be amended or supplemented from time to time.
T. "Individual Residential Lot Assessment" — an Assessment that the Board may levy
upon a Residential Lot and its Owner or Owners to reimburse the Association for costs incurred
solely on behalf of that Residential Lot, or the Owner or Owners thereof, including, without
limitation, costs associated with making repairs that are the responsibility of the Owner of that
Residential Lot; costs of additional insurance premiums reasonably allocable to an Owner because
of use of Improvements on that Residential Lot; costs of any utility expenses chargeable to an
Owner but not separately billed by the utility company; administrative charges for violations of
the Association Governing Documents, late charges, and interest on delinquent Assessments, and
costs of collection of delinquent obligations to the Association, including, but not limited to,
attorneys' fees and court costs, and all other charges reasonably determined to be chargeable solely
to a Residential Lot and its Owner or Owners.
U. "Lot" — a separate parcel of real property now or hereafter identified upon a
recorded plat of the property in the Community, or any portion thereof, or recorded re -subdivision
thereof and any other separate parcel of real property designated as a Lot by Declarant, and which
property has been subjected to the provisions of this Declaration, including Courtyard Lots and
Residential Lots, but excluding the Common Elements and any portion of the Property dedicated
for public use. Declarant reserves the right to split and/or combine currently platted Lots into new
platted Lots without the consent or approval of Owners of other Lots in the Community, as
Declarant may deem such split or combination to be beneficial to the Property from time to time.
Any and all references herein to a "Lot" shall include any such re -platted Lots. Once a
split/combination is completed, the former lots shall cease to be "Lots" for any and all purposes
hereunder.
V. "Managing Agent" — the person or entity retained by the Board to assist in the
management of the Association.
W. "Member" — any Person or entity meeting the requirement for membership in the
Association.
X. "Occupant" — a person lawfully residing in or occupying a Dwelling on a
Residential Lot, regardless of whether that Person is an Owner.
Y. "Operating Assessment" — an Assessment that the Association through its Board
may levy from time to time upon all Residential Lots, other than Exempt Property, and their
Owners, pursuant to the terms of the Declaration and the Indiana HOA Act, to provide funds to
pay Common Expenses, that is, funds needed to meet cash requirements of the Association for its
operations and reasonable reserves.
Z. "Owner" — the record owner, whether one or more persons or entities, of fee simple
title to a Lot, excluding vendors under recorded land installment contracts, but including vendees
under recorded land installment contracts, other contract sellers and the Declarant, but excluding
all others having an interest merely as security for performance of an obligation.
AA. "Person" — a natural individual, trustee, corporation, partnership, limited liability
company, or other legal entity capable of holding title to real property.
BB. "Property" — all of the real property described in Exhibit A attached to this
Declaration and such Additional Property as may be added by amendment or supplement to this
Declaration or otherwise added to the Community by a supplemental declaration or amendment
or supplement to this Declaration from and after such time as the Additional Property is subjected
to the provisions hereof, and also includes real property that is owned in fee simple by the
Association together with all easements and appurtenances.
CC. "Reserve Fund" — the fund established pursuant to Article IX.
DD. "Residential Lot'— all Lots subjected to the provisions of this Declaration except for
Exempt Property and Common Elements.
EE. "Rules" — the rules and regulations governing (1) use of the Property in the
Community, and (2) the conduct of Members and their respective families, guests, licensees and
invitees, as may be established by the Board from time to time, together with the architectural
standards that may be adopted by the Design Review Committee or the Board from time to time.
FF. "Special Assessment" — an Assessment that the Association through its Board may
levy upon all Residential Lots and the Residential Lot Owners to pay for unanticipated operating
deficiencies, or to pay for capital expenditures not regularly budgeted and not to be paid out of
monetary reserves, such as costs for major capital improvement replacements and for major new
capital improvements, or any other similar purpose determined appropriate by the Board in
furtherance of its functions hereunder.
GG. "State" — the State of Indiana, and, unless the context requires otherwise, any
political subdivision thereof exercising jurisdiction over the Property.
HH. "Turnover Date" — the date on which Declarant relinquishes its exclusive right to
appoint all members of the Board, which date shall be no later than the date when the Community,
including all "Additional Property", has been fully developed and all Lots have been deeded to
bona fide purchasers unrelated to Declarant or builders approved by Declarant; provided
Declarant reserves the right, in its sole and unfettered discretion, to turn over control of the
Association, or selected functions thereof, at such earlier time as Declarant determines, in its sole
discretion.
Article III. GOALS
The covenants, easements, conditions and restrictions contained in this Declaration are
declared to be in furtherance of the following purposes:
A. Compliance with all zoning and similar governmental regulations;
B. Promotion of the health, safety and welfare of all Owners and residents of the
Property which is and are part of the Community;
C. Preservation, beautification and maintenance of the Property and all Improvements
as provided for in the Association Governing Documents;
D. Ownership, administration, preservation, beautification and maintenance of the
Common Elements and all Improvements thereon;
E. Enforcement of architectural controls and restrictions applicable to the Community;
F. Providing for mandatory membership of Owners in the Community, as it may be
constituted, from time to time, in the Association, and for the assessment and collection of funds
to fulfill its objectives;
G. Establishment of requirements for the development and use of the Property; and
H. Compliance with the provisions of the Indiana HOA Act.
Article IV. USE RESTRICTIONS
The following restrictions and covenants concerning the use and occupancy of the Property
and Improvements thereon shall run with the land and be binding upon the Declarant and every
Owner and Occupant, their respective heirs, successors and assigns, as well as their licensees,
family members, guests, and invitees:
A. Use of Residential Lots. Except as otherwise expressly permitted herein, each
Residential Lot shall be occupied and used exclusively for single-family, residential purposes and
purposes customarily incidental thereto. No building on a Residential Lot, nor any portion of any
Residential Lot, shall be used for any purpose other than that of a residence for individuals living
together as a single housekeeping unit, and uses customarily incidental thereto, including, without
limitation, courtyard areas. Specifically, no building may be used as a rooming house, group home,
commercial foster home, fraternity or sorority house, or any similar type of lodging, care or
treatment facility. No structure of a temporary character, trailer, basement, tent, shack, garage,
barn, or other outbuilding shall be used on any Residential Lot at any time as a residence either
temporarily or permanently; provided, however, that nothing herein shall prevent the use of trailers
or temporary buildings by Declarant or by builders approved by Declarant for sales and
construction management and related uses during the construction and sale of Dwellings in the
Community. All Improvements are also subject to and shall continue to be subject to the
requirements of any governmental entity exercising jurisdiction over such Improvements and the
Residential Lot.
B. Use of Common Elements. Any Common Element may be used only in accordance
with the purposes for which it is intended and for any reasonable purposes incidental to the
residential use of a Residential Lot and shall be subject to the Rules governing the use as
promulgated by the Association. All uses of the Common Elements owned by the Association shall
benefit or promote the health, safety, welfare, convenience, comfort, recreation, and enjoyment of
Owners and Occupants, and shall comply with the provisions of this Declaration, the laws of the
State, the Rules, and the other Association Governing Documents. The Association, acting through
its Board of Directors, shall possess all power and authority vested in it pursuant to the Articles of
Incorporation and By -Laws, the Declaration, the other Association Governing Documents, and the
Indiana HOA Act, including, but not limited to, the right to (1) contract, lease, or assign interest
in; (2) initiate, defend, negotiate and settle claims arising from casualty, condemnation or other
actions with respect to; and (3) establish Rules governing conduct upon the Common Elements
owned by the Association and all Improvements located thereon. The foregoing notwithstanding,
no clubhouse or swimming pool located on a Common Element may be rented or leased solely to
the general public.
C. Hazardous Actions or Materials. Nothing shall be done or kept in or on any Lot or
in or on any portion of the Common Elements that is unlawful or hazardous, that might reasonably
be expected to increase the cost of casualty or public liability insurance covering the Common
Elements, or that might or that does unreasonably disturb the quiet occupancy of any Person
occupying a Dwelling on any other Lot. These provisions shall not be construed so as to prohibit
the Declarant (or a builder of Residences as approved by Declarant) from construction activities
consistent with reasonable residential construction practices.
D. Signs. No signs of any character shall be erected, posted or displayed upon the
Property, except: (1) marketing signs installed by the Declarant (or a builder of Residences as
approved by Declarant) while marketing the Lots and Dwellings for sale or rent; (2) street and
identification signs installed by the Association, a local governmental body having jurisdiction
over the streets within the Community or the Declarant; (3) one temporary real estate sign on a
Residential Lot not to exceed six square feet in area advertising that such Residential Lot is for sale
or rent; (4) signs on the Common Elements installed by or at the discretion of the Board or the
Declarant; and (5) within thirty (30) days before, and not to exceed five (5) days after, a public
governmental election, up to three temporary "Signs" (as such term is defined in Ind. Code § 32-
21-13-3) related to such governmental election of not more than six (6) square feet each may be
placed on a Residential Lot by the Owner of that Lot, and any such signs which do not fall under
the definition of a "Sign" pursuant to Ind. Code § 32-21-13-3 or otherwise violate or do not comply
with the rules regulations set forth in this Article IV(D)(5) may be removed by the Association.
No signs may be posted in or on any portions of the Common Elements owned by the Association
except signs authorized and approved by the Board.
E. Animals. Except as hereinafter provided, no animals, reptiles, livestock or poultry
of any kind shall be raised, bred or kept on any Lot, or in or upon any part of the Common
Elements. Notwithstanding the foregoing, household domestic pets, not bred or maintained for
commercial purposes, may be maintained inside of a Dwelling constructed on a Residential Lot,
provided that: (1) the maintaining of animals shall be subject to such rules and regulations as the
Board may from time to time promulgate, including, without limitation, the right to place
limitations on the size, number and type of such pets, and the right to levy administrative and
enforcement charges against persons who do not clean up after their pets; and (2) the right of an
Owner or Occupant to maintain an animal in a Dwelling on a Residential Lot shall be subject to
termination if the Board, in its full and complete discretion, determines that maintenance of the
animal constitutes a nuisance, creates a detrimental effect on the Community or other Lots or
Occupants, or possession of which violates any law, rule or ordinance promulgated by a
governmental or quasi -governmental entity. Any animal which is wild, dangerous or
undomesticated is specifically prohibited. Outdoor doghouses, animal cages or runs are prohibited
without the express prior approval of the Design Review Committee.
F. Nuisances. No noxious or offensive trade shall be permitted on the Property or
within any Dwelling, building or other structure located on the Property, nor shall any use be made
nor condition allowed to exist on any Residential Lot which unreasonably disturbs or interferes
with the quiet occupancy of any Person occupying a Dwelling on any other Residential Lot. These
provisions shall not be construed so as to prohibit Declarant or any other builder of Dwellings in the
Community from construction activities consistent with reasonable or customary residential
construction practices.
G. Business. No industry, business, trade, occupation or profession of any kind may
be conducted, operated or established on the Property, without the prior written approval of the
Board. This provision shall not prohibit: (1) a "home office", provided such use does not entail
any non-resident employees, generate any traffic or additional parking, require any signage, and is
operated in compliance with all laws including any Rules established by the Board and applicable
governmental regulations; (2) an Owner or Occupant from maintaining a personal or professional
library, keeping personal business or professional records or accounts, conducting personal
business, making professional telephone calls or corresponding in or from a Dwelling; or (3)
during the construction and initial sales period, the use of Lots, including Dwellings and other
Improvements constructed thereon, and Common Elements for construction and sales purposes by
Declarant and/or by builders of Dwellings approved by Declarant, including the construction and
operation of sales models and/or trailers by Declarant and/or by builders of Dwellings as approved
by Declarant, in its sole discretion, until Dwellings have been constructed on all Residential Lots
and all Lots with Dwellings on them have been conveyed to bona fide residential home purchasers.
H. Storage. Except for the reasonably necessary activities of the Declarant during the
development of the Property (including the construction of Dwellings or other Improvements by
Declarant), no open storage of any kind is permitted and no storage buildings, barns or sheds of
any kind are permitted on any Residential Lot. The limitations contained in this Section shall not
apply to any storage as may be necessary during the construction of a Dwelling on a Residential
Lot by Declarant or builders approved by Declarant.
1. Hotel/Transient Uses: Leases. No Residential Lot and no Dwelling or Improvement
on a Residential Lot may be used for hotel or transient uses, including without limitation, uses
in which an Occupant is provided customary hotel services such as room service for food and
beverage, maid service, furnishing laundry and linen, or similar services, or leases to roomers or
boarders that is, rental to one or more Persons of only a portion of a Dwelling on the Residential
Lot. All leases shall be in writing and shall be subject to this Declaration and the other Association
Governing Documents.
J. Vehicles.
1. The Board is granted the power and authority and shall be entitled to create
and enforce reasonable Rules concerning placement and the parking of any vehicle
permitted in or on the Property or in the Community, including, without limiting the
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generality of the foregoing, on any Lot or Common Element. In addition to the Board's
authority to levy Individual Residential Lot Assessments as administrative or enforcement
charges for the violation of such Rules, the Board shall be authorized to cause the removal
of any vehicle violating such Rules, including on Lots and/or Common Elements, unless
such vehicles are located in permitted, enclosed structures shielded from view.
2. No commercial vehicles, snowmobiles, watercraft, trailers, campers, buses
or mobile homes shall be parked or stored on the Common Elements or on any Lot (except
in an enclosed permitted structure shielded from view) for a total of more than twenty-four
(24) hours in any 10-day period. Nothing contained herein shall prohibit the reasonable use
of such vehicles as may be necessary during construction of Dwellings or Improvements
on the Lots or the development of the Community by Declarant or builders, employees and
contractors approved by Declarant. In addition, no automobile or other motorized vehicle
of any type or description which is not functionally or legally operable on public highways
shall be kept, stored, operated or maintained on or in front of any Lot or on the Common
Elements within the Community for a period longer than seven (7) days, unless the same
is entirely contained and shielded from view within a permitted enclosed structure. After
such time the vehicle, trailer or part shall be deemed to be a nuisance, and may be removed
by the Association, at the Lot Owner's expense and the Board may levy an Individual
Residential Lot Assessment for such violation and for the costs.
For the purpose of this Section, the terms "truck" and "prohibited commercial
vehicle" shall include all vehicles that have a length of more than twenty-one (21) feet and
all vehicles that include any visible exterior storage of tools or materials; provided,
however, that up to two ladders may be visible. Dump trucks, tow trucks, flat bed car
hauling trucks, panel trucks and vans larger than one -ton capacity, pickup trucks larger
than one -ton capacity, and semi type tractors and trailers, shall in every instance be
considered to be a prohibited truck and/or a prohibited commercial vehicle. For the purpose
of this Section, the word "trailer" shall include landscaping trailer, open bed trailer, trailer
coach, house trailer, mobile home, automobile trailer, camp car, camper or any other
vehicle, whether or not self-propelled, constructed or existing in such a manner as would
permit use and occupancy thereof, or for storage or the conveyance of personal property,
whether resting on wheels, jacks, tires or other foundation.
K. Trash. Except for the reasonably necessary activities of the Declarant during the
development of the Property, no burning or storage of trash of any kind shall be permitted on the
Property. All trash shall be deposited in covered, sanitary containers and stored either inside of a
permitted structure or within areas approved by the Design Review Committee or Board. Any
permitted structure or screened area on a Lot must comply with all requirements of any and all
governmental entities having jurisdiction over the Lot. The foregoing notwithstanding, trash cans
and other waste containers shall be permitted to be placed near the street or designated pick-up
area on days when refuse collection occurs or as otherwise permitted by the Rules. No emptied
trash containers shall be allowed to remain visible for more than twelve (12) hours following the
trash pick-up.
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L. Antennae. To the extent such prohibition is permitted by federal legislation, no
radio, satellite dish, television or other electronic antennae or aerial may be erected or maintained
on any Residential Lot or on the exterior of any Improvement, without the prior written approval
of the Design Review Committee or Board. Standard TV antennae and other over -the -air reception
devices (including satellite dishes) of one meter (39.4 inches) in diameter or less shall be permitted;
provided, however, that, unless otherwise prohibited by federal legislation, no exterior antenna,
satellite dish or similar exterior improvement shall be installed upon any Residential Lot without
first providing written notice to the Design Review Committee. Installation of standard TV
antennae and over -the -air reception devices shall comply with any and all rules and guidelines
adopted by the Design Review Committee or the Board concerning location and general screening
requirements and reasonable color blending requirements in order to minimize visual disturbance;
provided, however, that such rules or regulations do not unreasonably increase the cost of
installing, maintaining, or using such devices, or otherwise unreasonably delay an Owner's or
Occupant's right to receive acceptable over -the -air signals.
M. Utility Lines. All newly installed utility lines on the Property shall be underground,
subject to the requirements of relevant governmental authorities and utility companies.
N. Tanks. No tanks for the storage of propane gas, fuel oil or any other combustible
substance shall be permitted to be located above or beneath the ground of any Residential Lot
except that up to two (2) propane tanks, of the size customarily used in residential propane gas
grills are permitted for use with a propane gas grill. This Section shall not apply to the Declarant
or builders or contractors approved by the Declarant during the construction of any Dwellings or
Improvements on Lots or to any Lot containing Declarant's sales or construction trailer(s).
O. Fencing. Except as otherwise provided herein, no fence may be constructed on
any Residential Lot except those installed by Declarant or the Association or a fence enclosing
a courtyard area as approved by the Declarant or the Design Review Committee. Permitted
fences shall comply with the architectural standards established for the Community. The
foregoing notwithstanding, fencing may be installed on the Common Elements in the discretion
of the Declarant or the Board.
P. Swimming, Pools. No above -ground or in -ground swimming pool shall be permitted
on any Residential Lot. The foregoing notwithstanding, the Design Review Committee may, in its
sole an absolute discretion, allow a hot tub or sauna to be installed on a Residential Lot so long as
the hot tub or sauna is designed for no more than eight (S) adults and meets such requirements as
the Design Review Committee lawfully requires.
Q. Compliance with Zoning Requirements. Compliance with all applicable
governmental requirements, for so long as such requirements are effective and binding, is required
by this Declaration. However, in the event the governmental entity(ies) change or agree to a
modification of such underlying obligation(s) to be more strict or more restrictive than those set
forth in this Declaration, this Declaration shall be deemed modified, ipso facto and without the
need for further action on the part of the Declarant or any Member, such that this Declaration
requires compliance with such obligation as affected by such change or modification.
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R. Miscellaneous. The following Improvements shall not be permitted on any Lot: (1)
outdoor clotheslines; and (2) window air conditioning units.
S. Occupancy Restriction. No rule or action by the Association or Board shall violate
the following occupancy restriction. The Association and Owners must comply with the following
restrictive covenants regarding occupancy. Except as hereinafter provided, at least eighty percent
(80%) of the occupied Dwellings shall at all times have as a Permanent Occupant therein at least
one person who is fifty-five (55) years of age or older ("Qualifying Occupant"); provided, in the
event of (i) the death of a person who was the sole Qualifying Occupant of a Dwelling; (ii) a legal
separation or divorce resulting in the sole Qualifying Occupant of a Dwelling moving out of the
Dwelling, or (iii) the removal by reason of incapacitation (e.g. being placed in a nursing home) of
the sole Qualifying Occupant of a Dwelling, then the spouse (or former spouse, in the case of a
divorce) and any other members of the household occupying the Dwelling prior to the death, legal
separation or divorce, or incapacitation of such Qualifying Occupant may continue to occupy the
Dwelling. For purposes of this subsection, an Occupant shall not be considered a "Permanent
Occupant" unless such Occupant considers the Dwelling to be his or her primary legal residence
and actually resides in the Dwelling for at least six (6) months during every calendar year or such
shorter period as the Dwelling is actually occupied by any person.
Nothing in this Subsection is intended to restrict the ownership of, or transfer of title to, any
Dwelling; provided, no Owner may occupy the Dwelling unless the requirements of this subsection
are met nor shall any Owner permit occupancy of the Dwelling in violation of the provisions of this
subsection. The Association shall be responsible at all times for maintaining age records on all
Occupants of Dwellings. On or before January 1 of each calendar year, the Association shall conduct
a census of all Occupants of Dwellings. The Association, through its Board, shall adopt rules and
regulations to monitor and maintain compliance with the provision of this subsection, including
policies regarding visitors, updating of age records, the granting of exemptions pursuant to the
provisions hereof, and enforcement. The Association shall periodically distribute such rules and
regulations to the Owners and make copies available to the Owners, their tenants, and mortgagees
upon reasonable request.
The Association, through its Board, shall have the obligation to administer and enforce the
provisions of this subsection in any legal manner available, as it deems appropriate, including, without
limitation, conducting a census of the Occupants of Units, requiring copies of birth certificates or
other proof of age for each Occupant of the Dwelling to be provided to it on a periodic basis, and
taking action to evict the occupants of any Dwelling which does not comply with the requirements
and restrictions of this Subsection. EACH OWNER HEREBY APPOINTS THE ASSOCIATION AS
ITS ATTORNEY -IN -FACT FOR THE PURPOSE OF TAKING LEGAL ACTION, INCLUDING,
WITHOUT LIMITATION, LEGAL ACTION TO DISPOSSESS, EVICT, OR OTHERWISE
REMOVE THE OCCUPANTS OF THAT OWNER'S DWELLING AS NECESSARY TO
ENFORCE COMPLIANCE WITH THIS SUBSECTION. Each Owner shall fully and truthfully
respond to any and all requests by the Association for information regarding the occupancy of that
Owner's Dwelling which in the judgment of the Board are reasonably necessary to monitor
compliance with the provisions of this subsection.
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Each Owner shall be responsible for ensuring compliance of that Owner's Dwelling with the
requirements and restrictions of this subsection, and the rules of the Association adopted hereunder,
by that Dwelling and by its tenants and other Occupants of that Owner's Dwelling. EACH
OWNER, BY ACCEPTANCE OF TITLE TO A DWELLING, AGREES TO INDEMNIFY,
DEFEND, AND HOLD THE ASSOCIATION HARMLESS FROM ANY AND ALL CLAIMS,
LOSSES, DAMAGES, AND CAUSES OF ACTION WHICH MAY ARISE FROM FAILURE OF
THAT OWNER'S DWELLING TO SO COMPLY.
Article V. ARCHITECTURAL STANDARDS
All Property at any time subject to the provisions of this Declaration shall be governed and
controlled by this Article V.
A. Design Review Committee. The Design Review Committee shall be a committee
consisting of not less than three (3) persons, except that prior to the Turnover Date, Declarant shall
have the sole and exclusive right to (1) appoint and remove all members of the Design Review
Committee, at will; (2) serve itself as the Design Review Committee; or (3) delegate to the
Association's Managing Agent the responsibility to act as the Design Review Committee. After
the Turnover Date, the Board shall have the right, in its discretion, to appoint and remove all
members to the Design Review Committee, to delegate to the Association's Managing Agent (if
applicable) the responsibility to act as the Design Review Committee, or the Board of Directors
may, in its discretion, serve as the Design Review Committee.
The Design Review Committee shall have the exclusive authority to determine the
architectural standards which shall govern the construction of Improvements on a Residential Lot.
Each Owner covenants and agrees by acceptance of a deed to a Residential Lot, to comply with,
and to cause that Owner's Residential Lot and any Occupant thereof to comply with the standards
adopted by the Design Review Committee and the provisions of the Declaration. No Improvement
shall be placed, altered, erected or installed on a Residential Lot, no plantings or removal of plants,
shrubs or trees on a Residential Lot shall be permitted, and no construction (which term shall
include in its definition staking, clearing, excavation, grading and other site work) shall be
commenced or continued on a Residential Lot until and unless the Owner first obtains the written
approval thereof by the Design Review Committee and otherwise complies with any zoning
regulations and all provisions of the Association Governing Documents. If the Design Review
Committee consists of appointed individuals, the Design Review Committee shall act in
accordance with the concurrence of a majority of its members.
B. Modifications. Except as otherwise provided in this Declaration, the Design
Review Committee and local governmental authorities having jurisdiction over the Property in the
Community shall have jurisdiction over all construction, modifications, additions or alterationsof
Improvements on or to the Property, including each Residential Lot and the Dwelling and other
Improvements constructed on the Residential Lot. No Person, without first obtaining the written
consent of the Design Review Committee, shall construct, install or modify any Improvements on
a Residential Lot, alter any surfaces of existing Improvements, change paint colors or roofing
materials, construct or modify fencing, install any permanent recreational device; install any
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swing -set, playground, basketball hoop, or other similar Improvement, change the grade or contour
of any Residential Lot, change the material of any driveway, modify the exterior lighting, change
the mailbox or address marker, construct or have installed any porch, deck, patio, gazebo, or fence,
modify any landscaping, install any sign(s) not otherwise prohibited herein or by applicable law,
unless explicitly permitted herein, or otherwise modify or alter any Improvement visible to other
Residential Lots or the Common Elements. Owners shall submit plans and specifications showing
the nature, kind, shape, color, size, materials and location of Improvements and alterations to the
Design Review Committee for its approval. Without limiting the generality of the foregoing, in
connection with the Design Review Committee's exclusive authority to review and approve or
disapprove proposed Improvements the Design Review Committee may, among other things,
require screening, the use of certain materials and/or colors for a proposed Improvement and
designate the location of said Improvement. The Design Review Committee may charge a nominal
fee in connection with processing applications submitted pursuant to this Section. Nothing
contained herein shall be construed to limit the right of an Owner to remodel or decorate the interior
of that Owner's Dwelling. All construction, modifications, additions or alterations of
Improvements on or to the Property must comply with the requirements of the local governmental
authority having jurisdiction over the Property.
C. Variances. To avoid unnecessary hardship and/or to overcome practical difficulties
in the application of the provisions of this Declaration, the Design Review Committee shall have
the authority to grant reasonable variances from the provisions of the architectural standards
established pursuant to this Article V or by the Design Review Committee, provided that the
activity or condition is not prohibited by applicable law, rule, regulation or ordinance; and provided
further that, in the judgment of the Design Review Committee, the variance is in the best interest of
the Community and is within the spirit of the standards of the Design Review Committee. No
variance granted pursuant to this Section shall constitute a waiver of any provision of this Declaration
and/or other Association Governing Documents, as applied to any other Person or any other part of
the Property.
D. Improvements by Declarant. The foregoing to the contrary notwithstanding, all
Improvements, including, but not limited to, Dwellings, buildings, courtyards and landscaping
constructed by the Declarant, or its agents, or designated assignees, or constructed by builders
approved by Declarant, shall be deemed to comply in all respects with the provisions of this
Declaration, any design guidelines, and the requirements of the Design Review Committee or
Board, and shall not require approval of the Association, the Board, the Owners or the Design
Review Committee; provided that such Improvements comply with the provisions of this
Declaration and the required architectural standards for the Community adopted by the Declarant.
E. Liability Relating to Approvals. Neither Declarant, the Association, the Board, the
Design Review Committee, nor any member thereof, nor any of their respective heirs, personal
representatives, successors and assigns, shall be liable to anyone submitting plans and
specifications for approval by reason of mistakes of judgment, negligence, or nonfeasance arising
out of, or in connection with the approval or disapproval or failure to approve the same. Every
Person and Residential Lot Owner who submits plans and/or specifications or otherwise requests
approval from the Design Review Committee agrees, by submission thereof, that they will not
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bring any action or suit, seek damages, or otherwise attempt to compel the approval of the same.
Each Residential Lot Owner shall be responsible for ensuring that any Improvements constructed
on their Residential Lot comply with any zoning ordinances and any easements, covenants and
conditions of record.
Article VI. EASEMENTS AND LICENSES
A. Easement of Access and Enjoyment Over Common Elements. Every Owner shall
have a right and easement (in common with all other Owners) of enjoyment in, over, and upon the
Common Elements (if any) owned by the Association, and a right of access to and from that
Owner's Lot, which rights shall be appurtenant to, and shall pass with the title to, that Owner's
Lot, subject to the terms and limitations set forth in this Declaration and subject to the Rules and
other Association Governing Documents. An Owner may delegate that Owner's rights of access
and enjoyment to family members, Occupants, guests and invitees. All such easements are limited
by such restrictions as may apply to the Common Elements affected thereby, and no Person shall
have the right by virtue of such easements to engage in activities on the Common Elements which
are not permitted according to the provisions of this Declaration and/or other Association
Governing Documents, pursuant to the provisions of any applicable plat(s) or under agreements
with any governmental entities or other third parties.
B. Courtyard Easements. Each Courtyard Lot ("Burdened Courtyard Lot") in The
Courtyards of Carmel is hereby made subject to and burdened with a "Courtyard Easement" in
favor of and benefitting an immediately contiguous Courtyard Lot or Courtyard Lots
("Contiguous Courtyard Lot(s)") which has a part of a Contiguous Courtyard Lot's courtyard,
or Contiguous Courtyard Lots' courtyards, located on the Burdened Courtyard Lot. The Owner
or Owners of each Burdened Courtyard Lot grants to the Owners and Occupants of the Contiguous
Courtyard Lot(s) adjacent to that Burdened Courtyard Lot the right to construct, reconstruct,
maintain, repair, replace and use an enclosed courtyard area and the improvements within that
area, including, but not limited to, patios, porches, fire pits, water features, and landscaping, as
well as the fencing enclosing the courtyard, located on a portion of the Burdened Courtyard Lot.
The Courtyard Easement area is limited to an area bounded generally by the side of the Dwelling or
a fence constructed on the Burdened Courtyard Lot, fences extending to and from the Dwelling or
fence on the Burdened Courtyard Lot and the Dwelling(s) constructed on the Contiguous
Courtyard Lot(s) to which the fences extend, and the property boundary line between the Courtyard
Lots, all as initially constructed by Declarant (or its specific successors and assigns) and/or shown
on a recorded plat of the Community. The Owners and/or Occupants of the Contiguous Courtyard
Lot(s) shall not temporarily or permanently attach or affix any improvements to the Dwelling on
the Burdened Courtyard Lot or otherwise cause damage to it when exercising that Owner's or
Occupant's rights created pursuant to the Courtyard Easement. The Owners and/or Occupants of
the Contiguous Courtyard Lot(s) shall neither relocate the location of the courtyard fencing
constructed by Declarant nor modify the location or size of the Owners and/or Occupants' enclosed
courtyard area.
The Owner of the Burdened Courtyard Lot shall have a right of entry and access to, over,
upon and through the Courtyard Easement, for the sole purpose of enabling that Owner (or that
16
Owner's designees) to perform obligations, rights, and duties pursuant hereto with regard to
reasonable and necessary maintenance, repair, and restoration of that Dwelling on the Burdened
Courtyard Lot. In the event of an emergency, the Burdened Courtyard Lot Owner's right of entry
to the Courtyard Easement may be exercised without notice; otherwise, the Burdened Courtyard
Lot Owner shall give the Owners or Occupants of the Contiguous Courtyard Lot(s) no less than
twenty-four (24) hours advance notice prior to entering the adjacent Courtyard Easement.
C. Right of Entry for Repair. The Association, through its authorized agents,
contractors, and representatives, shall have a right of entry and access to, over, upon and through
all of the Property subject to this Declaration, including without limitation the Lots and Courtyard
Easements, for the purpose of performing the Association's obligations, rights and duties pursuant
to the Association Governing Documents with regard to enforcement of the covenants, restrictions
and other provisions of the Declaration and the Association Governing Documents, and the
maintenance, repair, restoration and/or servicing of any items, things or areas for which the
Association has responsibility or the right to perform. The Association may enter any Lot at any
time to perform its obligations under the Association Governing Documents. In addition, the
Association may enter a Lot to remove or correct any violation of any provision of the Association
Governing Documents, including but not limited to the provisions of the Declaration and the Rules,
but only during reasonable hours and after providing seventy-two (72) hours advance notice to the
Owner, except in cases of emergency.
D. Easement of Access over Sidewalks. Every Owner and Occupant, and their
respective guests and invitees, shall have a right and easement in, over, and upon the sidewalks
within the Community (but not the service walks connecting the driveway on a Residential Lot to
the front porch, stoop or courtyard of the Dwelling on the Residential Lot) for purposes of
pedestrian ingress and egress and pedestrian movement throughout the Community. The
easements shall run with the land and be binding on the Owners and their successors and assigns.
E. Easement for Utilities and Other Purposes. The Board or Declarant may convey
easements over the Common Elements owned by the Association to any entity for the purpose of
constructing, installing, maintaining, and operating poles, pipes, conduits, wires, ducts, cables,
stormwater control improvements and other equipment necessary to furnish electrical, gas, sewer,
water, telephone, cable television, stormwater drainage and other similar utility or security
services, whether of public or private nature, to the Community and to any entity for such other
purposes as the Board or Declarant deems appropriate; provided that such equipment or the
exercise of such easement rights shall not unreasonably interfere with any Owners' use and
enjoyment of that Owner's Lot. The Board or Declarant may grant such easements over all portions
of the Community for the benefit of adjacent properties as the Board or Declarant deems
appropriate; provided that the grant of such easements imposes no undue, unreasonable, or material
burden or cost upon any property in the Community, and further provided that the Board or
Declarant may not convey any easement over a Lot without the prior written consent of the Owner
of such Lot (which consent shall not be unreasonably withheld, delayed or conditioned).
F. Easement for Services. A non-exclusive easement is hereby granted to all police,
firefighters, ambulance operators, mail carriers, delivery persons, garbage removal personnel, and
17
all similar persons, and to the local governmental authorities and the Association (but not to the
public in general) to enter upon the Common Elements owned by the Association to perform their
duties.
G. Easement to the Association for Maintenance. A non-exclusive easement is hereby
granted to the Association to enter upon, over or through the Property, including each Lot, for the
purpose of performing maintenance responsibilities reserved to the Association in the recorded
plats for the Community or in this Declaration or the other Association Governing Documents, as
amended from time to time.
H. Easements on Plats. In addition to the easements described and set forth in this
Article VI, the Property shall at all times be subject to any easements described and depicted on
any recorded plat or plats for the Property, as the same may be amended from time to time.
I. General. Unless specifically limited herein otherwise, the easements described
herein shall run with the land and pass with the title to the benefited and burdened properties, shall
be appurtenant to the properties benefited and burdened thereby, shall be enforceable by the
owners of the properties benefited thereby, and shall be perpetual. The easements and grants
provided herein shall in no way affect any other recorded grant or easement. Failure to refer
specifically to any or all of the easements and/or rights described in this Declaration in any deed
of conveyance or in any mortgage or other evidence of obligation shall not defeat or fail to reserve
said rights or easements but the same shall be deemed conveyed or encumbered, as the case may
be, along with the Lot.
Article VII. ASSOCIATION MEMBERSHIP AND VOTING RIGHTS
A. Mandator MembershiR. Every Owner of a Residential Lot is and shall be a
Member of the Association. In the case of a Residential Lot that is the subject of a recorded land
installment contract, the vendee or vendees under that installment contract and not the vendor shall,
while holding such interest, be a Member of the Association. There shall only be one membership
per Residential Lot. In the event the fee simple interest in a Residential Lot, or ownership of the
vendee interest in a Residential Lot, if applicable, is held by more than one Person, the co -interest
holders of such interests while holding such interests collectively shall have only one membership
in the Association as tenants -in -common, with respect to that Residential Lot. Such membership
is appurtenant to and inseparable from such interests. Status as a Member shall automatically
transfer to the transferee of that interest at the time the fee simple interest is transferred of record.
Initially those Residential Lots to which these membership provisions apply are those
Residential Lots that are subjected hereby to the provisions of this Declaration, but as portions of
the Additional Property are subjected to the plan hereof by the recording of supplemental
declarations or amendments or supplements to this Declaration, membership in the Association
shall extend to and encompass the holders of fee simple interests in those Residential Lots, and
holders of vendee interests under recorded land installment contracts with respect to those
Residential Lots, on the same basis as set forth herein for membership. The foregoing is not
intended to include Persons who hold an interest merely as security for the performance of an
18
obligation and the giving of a security interest or mortgage shall not terminate the membership of
any Member or Owner, provided further, there shall not be a membership appurtenant to a Lot
dedicated to common public use or owned by any governmental body, instrumentality or agency
for so long as such body, instrumentality or agency owns that Lot and so long as it is not utilized
as a Residence, nor for a Lot, if any, that becomes a Common Element, for so long as it remains a
Common Element.
B. Governance. The Association shall be governed by a Board of Directors, initially
consisting of three persons, which initial three persons shall adopt the initial By -Laws for the
Association. Prior to the Turnover Date, the members of the Board shall be appointed by the
Declarant, or the Declarant may elect to act as the Board, or it may appoint a Managing Agent to
act as the Board on its behalf. Voting shall be a right separate and distinct from all other rights of
membership in the Association. All voting rights of all Members of the Association shall inure to
and be exercisable by the Declarant through the Turnover Date. The transfer of control on the
Turnover Date shall take place at a meeting which shall occur no later than the date when the
Community has been fully developed and all Lots have been deeded to bona fide purchasers
unrelated to Declarant or builders approved by Declarant. Voting and all other matters regarding
the governance and operation of the Association following the Turnover Date shall be set forth in
the Association Governing Documents.
C. Powers: Authorities: Duties. The Association shall have all the rights, powers, and
duties established, invested, or imposed in it pursuant to the Association Governing Documents,
the Indiana HOA Act, and the laws of the State of Indiana applicable with respect to Indiana non-
profit corporations. Among other things, the Association, through its Board, shall have the power
to acquire, own and convey real estate, hold easements with respect to, and maintain the Common
Elements and other real and personal property in accordance with the provisions of the Association
Governing Documents, enforce and administer the Declaration, Rules, restrictions and covenants
applicable to the Community, sue and be sued, levy and collect Assessments, collect and maintain
reserves for replacements or anticipated expenditures, enter into contracts, mortgage and pledge all
revenue received and to be received and/or to assign and pledge all revenues received or to be
received by it under any provisions of the Association Governing Documents, including, but not
limited to, the proceeds of the Assessments payable hereunder, and take such other actions as it
deems appropriate to its purposes. The Association shall not be obligated to spend in any particular
time period all the sums collected or received by it in such time period or in any other time period
and may carry forward, as surplus, any balances remaining; nor shall the Association be obligated
to apply any such surpluses to the reduction of the amount of the Assessment in any year, but may
carry forward from year to year and time to time such surplus as the Board in its absolute discretion
may determine to be desirable for the greater financial security of the Association and the
effectuation of its purposes.
Article VIII. RIGHTS AND OBLIGATIONS OF THE ASSOCIATION
A. Common Elements. Declarant may, from time to time, at Declarant's option,
obligate the Association to maintain property not owned by the Association and may convey to
the Association for the use and benefit of the Association and the Members, real or personal
19
property, or any interest therein, as part of the Common Elements in the nature of an easement
appurtenant to the Property. The Association shall accept title to any interest in any real or personal
property transferred to it by Declarant or required to be owned by the Association pursuant to the
provisions of applicable zoning or a plat of property in the Community including, without
limitation, Block "A", C.A. #1-1, C.A. #1 2, and C.A. #1-3, respectively, as described in the Section 1 Plat.
The Association, subject to the rights of the Owners set forth in this Declaration and the Association
Governing Documents, shall be responsible for the exclusive management and control of the
Common Elements owned by the Association, if any, and all Improvements thereon, and shall
keep it in good, clean, attractive, and sanitary condition, order, and repair, in accordance with the
terms and conditions of this Declaration. The Declarant and Association shall each have the right
to grant easements to third parties over, across, under and/or through the Common Elements owned
by the Association, including, but not limited to, easements for the construction, extension and/or
expansion of utilities, and conservation easements, all as the Declarant and/or Association may be
legally obligated or voluntarily disposed to grant. Regardless of whether Declarant expressly
conveys or assigns entry feature maintenance responsibilities to the Association, the Association
shall have the continuing right to maintain, modify and/or improve any and all entry features
constructed by the Declarant, and for such purpose all relevant easements that may be deemed
necessary at any time for the Association's performance of work on or around the entry features
are hereby deemed granted to the Association.
B. Personal Property- and Real Property for Common Use. Subject to the provisions of
the Association Governing Documents and Indiana law (including specifically the Indiana HOA
Act), the Association may acquire, hold, mortgage and dispose of tangible and intangible personal
property and real property in addition to that property conveyed to it by Declarant.
C. Cost -Sharing Agreements. Subject to the Indiana HOA Act, the Association shall
have the power and authority to contract with any individual, corporation, firm or other entity, for
the exercise of any one or more of the various powers and authority granted to and duties to be
performed by the Association pursuant to the provisions of the Association Governing Documents,
and to delegate such powers and authority to any agent or employee of the Association, and the
exercise of those powers and authority by such person, corporation, firm, entity, agent or employee
shall be deemed the exercise of those powers and authority by the Association, except that no
independent contractor shall be deemed by virtue of these provisions to be the agent of the
Association. There shall be no requirement of any bond or surety for the Association, its agents,
employees, or others assuring the exercise of the powers and authority granted hereunder, except
as the Board shall in its sole discretion deem necessary or desirable for the safeguarding of any
funds received by the Association. Subject to the Indiana HOA Act, the Association may enter into
agreements with other property owners and other community, subdivision and condominium
associations and/or master associations pursuant to which the Association agrees (1) to share in
the cost of maintaining, repairing and replacing landscaping, storm water retention facilities,
mounding, fencing and any other improvements or services that benefit the Community or the
Members; and (2) grant reciprocal rights, licenses and/or easements to members of other
associations to use and enjoy each other's common elements, subject to such rules and regulations,
restrictions and fees as the Association may determine from time to time.
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D. Rules and Regulations. The Board on behalf of the Association may make and
enforce reasonable Rules and regulations governing the use of the Property, which shall be
consistent with this Declaration and the provisions of the Association Governing Documents. The
Board, on behalf of the Association, shall have the power to impose sanctions on Owners for
violations by that Owner or the guests or invitees of that Owner or by the Occupants of that
Owner's Residential Lot or their guests and invitees of the provisions of this Declaration, the Rules
or the other Association Governing Documents, including without limitation: (1) reasonable
monetary administrative and enforcement charges which shall be considered Individual
Residential Lot Assessments, and (2) suspension of the right of the Owner and that Owner's
licensees and invitees, including any Occupant of that Owner's Residential Lot, to use the
Common Elements owned by the Association except as necessary for ingress and egress to that
Owner's Residential Lot. The Board shall have the right to suspend the voting rights of a Member
for nonpayment of any Assessments provided that such Assessments are delinquent for more than
six (6) months. In addition, the Board shall have the power to seek relief in any court for violations
or to abate unreasonable disturbances. If the Board expends funds for attorneys' fees, costs or
expenses in connection with enforcing the provisions of this Declaration, the Rules or other
Association Governing Documents against any Owner, or any tenant, guest or invitee of an Owner,
the amount shall be due and payable by such Owner and shall be an Individual Residential Lot
Assessment against such Owner's Residential Lot.
E. Implied Rights. The Association may exercise any other right or privilege given to
it by the laws of the State or any provision of the Association Governing Documents or given to it
as an "homeowners association" by the Indiana HOA Act, and every other right or privilege
reasonably implied from the existence of any right or privilege granted in this Declaration, the
other Association Governing Documents or the Indiana HOA Act, or reasonably necessary to effect
any such right or privilege, and unless otherwise expressly reserved to the membership or delegated
to a Managing Agent pursuant to Article VIII, Section F of this Declaration, the Board shall have
the power and authority to act on behalf of the Association.
F. Managing_Agent. The Board may retain and employ on behalf of the Association a
Managing Agent, which may be the Declarant, and may delegate to the Managing Agent such
duties as the Board might otherwise be authorized or obligated to perform. The compensation of
the Managing Agent shall be a Common Expense. The term of any management agreement shall
not exceed three (3) years and shall allow for termination by either party, without cause and without
penalty, upon no more than ninety (90) days prior written notice. Part of the Managing Agent's
compensation may include any miscellaneous fees payable in the event of transfers or other
transactions involving a Residential Lot.
G. Insurance.
1. Fire and Extended (Special Form) Coverage. The Association shall, with
respect to insurable property or interests owned by or to be maintained by the Association,
obtain and maintain insurance for all buildings, structures, fixtures and equipment and
common personal property, now or at any time hereafter constituting a part of the Common
Elements owned or to be maintained by the Association, against loss or damage by fire,
lightning, and such other perils as are ordinarily insured against by standard coverage
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endorsements, with such limits, deductibles, and coverage as is deemed appropriate by the
Board. This insurance:
i. shall provide that no assessment may be made against a first
mortgage lender, or its insurer or guarantor, and that any assessment under such
policy made against others may not become a lien on any Residential Lot, or other
property, and its appurtenant interest, superior to the lien of a first mortgage;
ii. shall be obtained from an insurance company authorized to write
such insurance in the State of Indiana which has a current rating of Class A-NIII,
or better, as determined by the then latest edition of Best's Insurance Reports or its
successor guide;
iii. shall be written in the name of the Association; and
iv. shall provide that the insurance carrier shall notify the Association
and all first mortgagees named at least 30 days in advance of the effective date of
any cancellation of the policy.
2 Liability Coverage. The Association shall obtain and maintain a
Commercial General Liability policy of insurance covering all of the Common Elements
owned by or under the control of the Association, and the functions of the Association
insuring the Association, the officers and directors, and its Members, with such limits as
the Board may determine, but no less than the greater of (i) the amounts generally required
by private institutional mortgage investors for projects similar in construction, location and
use, and (ii) $1,000,000, for each occurrence and $2,000,000 in the aggregate, for bodily
injury, including deaths of persons, and property damage. This insurance shall contain a
"severability of interest" endorsement which shall preclude the insurer from denying the
claim of any Member because of negligent acts of the Association, the Board, officers of
the Association, or other Members, and shall include, without limitation, coverage for legal
liability of the insureds for property damage, bodily injuries and deaths of persons in
connection with the operation, maintenance or use of the Common Elements, and other
legal liability, including liability under contractual indemnity clauses and liability arising
out of lawsuits related to any employment contracts of the Association. Each such policy
must provide that it may not be canceled by any party, without at least 30 days prior written
notice to the Association and eligible holders of first mortgage liens on a Residential Lot
or Residential Lots that have provided written notice to the Association stating the name
and address of such holder or insurer and a description of the Residential Lot or Residential
Lots subject to said mortgage.
3. Directors' and Officers' Liability Insurance. The Board shall obtain, or
cause to be obtained, directors' and officers' liability insurance in an amount of not less
than $1,000,000 for each claim and in the aggregate.
4. Other. The Association may, in the Board's discretion, obtain andmaintain
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the following insurance: (i) fidelity bond coverage for all officers, directors, Board
members and employees of the Association and all other persons handling or responsible
for handling funds of the Association, (ii) workers' compensation insurance, (iii) additional
insurance against such other hazards and casualties as is required by law, (iv) cybersecurity
insurance, and (v) any other insurance the Board deems necessary.
5. Use of Proceeds. In the event of damage or destruction of any portion of the
Common Elements owned or insured by the Association, the Association shall promptly
repair or replace the same, to the extent that insurance proceeds are available. Each Member
hereby appoints the Association as its attorney -in -fact for such purpose. If such proceeds
are insufficient to cover the cost of the repair or replacement, then the Board may levy a
Special Assessment pursuant to the provisions hereof to cover the additional costs.
6. Declarant Coverage. The foregoing provisions of this Section G
notwithstanding, prior to the Turnover Date the Declarant may (but shall not be obligated
to) elect to cause or allow the Association and its insurable interests in the Association's
property, rights and obligations, to be covered by Declarant's existing insurance plan(s),
which may or may not meet the monetary limitations described herein, and which may or
may not include `self-insurance' by the Declarant, all as deemed appropriate by the
Declarant in the exercise of its sole discretion.
H. Condemnation. The Association shall represent the Owners in any condemnation
proceedings or in negotiations, settlements and agreements with the condemning authority for
acquisition of the Common Elements owned by the Association, or any portion thereof. Each
Owner hereby irrevocably appoints the Association as its attorney -in -fact for such purpose. The
awards or proceeds of any condemnation action shall be payable to the Association to be held in
trust for the benefit of the Owners.
Article IX. ASSESSMENTS
A. Operating Fund. The Board shall establish an operating fund for financing the
operation of the Association, for paying necessary costs and expenses of operating the Association
and repairing and maintaining the Common Elements and any other items for which the
Association is responsible for maintaining, repairing or replacing. The Board may establish a
"Reserve Fund" to which a portion of the Operating Assessments shall be credited to cover the costs
of future capital expenditures and/or other non -recurring items not intended to be funded from the
Operating Fund.
B. IyRes _of Assessments. Subject to the provisions of this Declaration, each
Residential Lot and its Owner or Owners is and shall be subject to the following Assessments and
the Owner or Owners of each Residential Lot, by accepting a deed to a Residential Lot (whether
or not it shall be so expressed in such deed), is deemed to covenant and agree to pay to the
Association the following Assessments: (1) Operating Assessments; (2) Special Assessments; and
(3) Individual Residential Lot Assessments, all of which are to be established and collected as
hereinafter provided. No Owner may gain exemption from liability for any Assessment by waiving
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or foregoing the use or enjoyment of any of the Common Elements or by abandoning that Owner's
Residential Lot, nor shall any such liability be subject to any set-off or reduction for any reason.
C. O eratin Assessments.
1. For the purposes of providing funds to pay for Common Expenses, which shall
specifically include, without limitation, the following:
i. the cost of the maintenance, repair, replacement, and other services
to be provided by the Association, whether for the Common Elements or otherwise;
ii. the costs for insurance and bond premiums to be provided and paid
for by the Association;
iii. the cost for utility services, if any, charged to or otherwise properly
payable by the Association;
iv. the costs for construction of new capital improvements on Common
Elements not replacing capital improvements installed by Declarant;
V. the estimated amount required to be collected to maintain a general
operating reserve to assure availability of funds for normal operations of the
Association, in an amount deemed adequate by the Board in its sole and unfettered
discretion;
vi. an amount deemed adequate by the Board, in its sole andunfettered
discretion, to maintain a reserve for the cost of unexpected repairs and replacements
of capital improvements and for the repair and replacement of major improvements
for which cash reserves over a period of time in excess of one year ought to be
maintained; and
vii. the costs for the operation, management and administration of the
Association, including, but not limited to, fees for property management, real estate
taxes and assessments for the Common Elements owned by the Association (but
not individual Owner Residential Lots), fees for legal and accounting services, costs
of mailing, postage, supplies and materials for operating the Association, and the
salaries, wages, payroll charges and other costs to perform these services, and any
other costs of operations of the Association not otherwise specifically excluded.
The Board shall establish, levy and collect Operating Assessments against each Residential
Lot with a Dwelling constructed thereon and its Owners subject to the same, an equal pro
rata share of such costs, in accordance with the provisions of the Association Governing
Documents.
2. An equal pro rata share of the Operating Assessments shall be assessed and
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collected as follows:
A. Initial Period. Commencing on the date a Residential Lot with a
Dwelling constructed thereon is initially conveyed to a home purchaser other than
Declarant, such Residential Lot and its Owner or Owners shall be subject to and
obligated to pay to the Association an Operating Assessment for the remainder of
the calendar year, as determined by the Board, in the proportion that the number of
full calendar days remaining in the calendar year from the date of the closing of the
conveyance of the Residential Lot is to 365. This amount may have been prepaid
by the Declarant and if so, a credit back to the Declarant will be collected at the
closing on the Residential Lot.
B. Subsequent Calendar Year. For each full year following the year in
which a Residential Lot with a Dwelling constructed thereon is first conveyed to a
home purchaser other than Declarant, the Residential Lot and its Owner(s) shall be
obligated to pay to the Association the full Operating Assessment for each such
year. For each calendar year, the Board shall adopt a budget and establish an equal
Operating Assessment amount, to be charged to each such Residential Lot with a
Dwelling constructed thereon for such year. The Operating Assessment amount
shall be determined by dividing equally among all Residential Lots in the
Community that have a Dwelling constructed thereon and that have been conveyed
to a home purchaser other than Declarant, the projected gross expenses anticipated
to be incurred by the Association to operate the Association (including, without
limitation, Common Expenses) during that calendar year (including the payment of
all costs to be incurred in owning and/or maintaining all Common Elements, and
appropriate reserve funds).
The Declarant may pay, but is not obligated to pay, in the exercise of its
sole and absolute discretion, (a) an amount equal to the per Residential Lot
Operating Assessment multiplied by the number of Residential Lots owned by
Declarant as of the first day of such year; or (b) an amount necessary to fund the
actual difference between the Association's actual cost of operations for such year,
and the amount of Operating Assessments assessed to Residential Lot Owners for
the year. If and to the extent funds provided by the Declarant to the Association are
necessary as a result of the failure of Residential Lot Owner(s) to pay all or any
portion of duly levied Assessments to the Association, such amounts provided by
Declarant may be characterized as non -interest bearing `advances' or `loans' by the
Declarant to the Association, which the Association shall be obligated to repay to
the Declarant upon demand, or which may be credited to the Declarant's payment
of deficit(s) in any future year(s).
C. Due Dates. The Operating Assessments issued to a Residential Lot
and its Owners shall be payable in full within ten (10) days of the date on which
such Assessment is issued; provided however that the Board may determine to
allow payment in monthly, quarterly or semi-annual installments. If payable in
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installments, the Assessment shall include a statement of the dates on which
installments are due, and notice of the Assessment shall be given to a Residential
Lot Owner not less than ten (10) days prior to the date the first installment thereof is
due. Unless the Operating Assessment states that it is payable in installments,
payment in full within ten (10) days shall be required.
D. Special Assessments. The Board may levy against all Residential Lots subject to
Operating Assessments, and their Owners, Special Assessments to pay for capital expenditures,
interest expense on indebtedness incurred for the purpose of making capital expenditures and not
to be paid out of reserves, unanticipated operating deficiencies or any other purpose determined
appropriate by the Board in furtherance of its functions under the Association Governing
Documents and/or applicable law. Those Special Assessments shall be allocated among
Residential Lots and their Owners on the same basis as Operating Assessments are to be allocated,
and shall be due and payable on such basis and at such times as the Board directs, provided that
no such Special Assessment shall be due and payable on fewer than thirty (30) days written notice.
E. Individual Residential Lot Assessments. The Board may levy an Individual
Residential Lot Assessment against any Residential Lot and its Owner or Owners to reimburse the
Association for costs incurred on behalf of that Residential Lot, or as a consequence of any act or
omission by any Owner, Occupant, or invitee thereof, including without limitation, costs
associated with making repairs that are the responsibility of the Owner; costs of additional
insurance premiums specifically allocable to an Owner; costs of any utility expenses chargeable
to an Owner but not separately billed by the utility company; and all other administrative and
enforcement charges, including, but not limited to, attorneys' fees incurred by the Association
reasonably determined to be an Individual Residential Lot Assessment by the Board. By way of
illustration, and not of limitation, the Board may levy an Individual Residential Lot Assessment in
the nature of an administrative or enforcement charge reasonably determined by the Board against
any Residential Lot and its Owner or Owners when the Residential Lot is in violation of the
provisions of the Association Governing Documents or the Owners or Occupants of that
Residential Lot or their guests or invitees violate any provision of the Association Governing
Documents, or who suffers or permits the Occupants, guests, invitees or tenants of that Owner's
Residential Lot to violate the same or any provision of the Association Governing Documents,
including the restrictions contained herein and/or in the Rules.
Except in the case of Individual Residential Lot Assessments for utility charges, interest,
late charges, returned check charges, court costs, arbitration costs, and/or attorneys' fees, prior to
levying an Individual Residential Lot Assessment, the Board shall give the Owner or Owners
written notice of the proposed Individual Residential Lot Assessment that includes:
l . a description of the property damaged or of the violation of the restriction,
Rule or regulation allegedly violated;
2. the amount of the proposed Individual Residential Lot Assessment;
3. a statement that the Owner has a right to a hearing before the Board to
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contest the proposed Individual Residential Lot Assessment by delivering to the Board a
written notice requesting a hearing within ten (10) days after the Owner receives written
notice of the proposed Individual Residential Lot Assessment; and
4. in the case of a charge for violation of a restriction, Rule or regulation, a
reasonable date by which the Owner must cure the alleged violation to avoid the proposed
Individual Residential Lot Assessment.
The notice by the Board given pursuant to the foregoing may be delivered personally to the Owner
to whom an Individual Residential Lot Assessment is proposed to be charged, personally to an
Occupant of a Dwelling on that Owner's Residential Lot, by certified mail, return receipt
requested, or by regular mail. In the event after such hearing the Board determines to levy the
Individual Residential Lot Assessment proposed, the Board shall deliver to the Owner written
notice thereof within thirty (30) days of the date of that hearing.
F. Remedies.
1. Acceleration. If any Assessment, installment of an Assessment, or portion
thereof, is not paid within ten (10) days after the same has become due, the Board, at its
option, without demand or notice, may call the entire balance of the Assessment due.
2. Late Charge. If any Assessment or portion of any Assessment remains
unpaid for ten (10) days after all or any part thereof became due and payable, the Board
at its option, without demand or notice, may charge a reasonable uniform late fee in an
amount determined by the Board and/or interest on the entire unpaid balance of the
Assessment from and after that date at the lesser of (i) twelve percent (12%) and (ii) the
highest rate permitted by applicable law. In addition, reasonable administrative collection
charges may also be assessed for any payment remaining unpaid for ten (10) days after it
is due, which charge may be payable to the Association, or its Managing Agent, as
determined by the Board.
3. ARglication of Payments. Payments made by an Owner for Assessments
shall be applied in the following priority: (i) to interest accrued on the delinquent
Assessment(s), or installments or portions of installments thereof; (ii) to administrative
late fees charged with respect to the delinquency; (iii) to reimburse the Association for
enforcement charges and collection costs, including, but not limited to, attorneys' fees and
paralegal fees incurred by the Association in connection with the delinquency; and (iv) to
the delinquent Assessment, or installment or portion thereof, applying to the oldest
principal amounts first.
4. Liability for Unpaid Assessments. Each Assessment or installment of an
Assessment, together with interest and late fees thereon, and any and all costs of
collection, including reasonable attorneys' fees, shall become the joint and several
personal obligations of the Owners of the Residential Lot charged the same, beginning on
the date the Assessment or installment thereof becomes due and payable. The Board may
27
authorize the Association to institute and prosecute to completion an action at law on
behalf of the Association against the Owner or Owners personally obligated to pay any
delinquent Assessment, and/or an action to foreclose the Association's lien or liens against
a Residential Lot or Residential Lots for unpaid Assessments owed by that Residential
Lot and the Owner or Owners thereof. In any such action, interests and costs of such
action, including reasonable attorneys' fees, shall be added to the amounts owed by the
Owner or Owners and the Residential Lot to the extent permitted by Indiana law. Except
as otherwise provided herein, the transfer of an interest in a Residential Lot shall neither
impair the Association's lien against that Residential Lot for any delinquent Assessment
nor prohibit the Association from foreclosing that lien.
5. Liens. All unpaid Assessments, or portions thereof, together with any
interest and charges thereon or costs of collection, including, but not limited to, attorneys'
fees, shall constitute a continuing charge in favor of the Association and a lien on the
Residential Lot against which the Assessment was levied. If any Assessment, or portion
thereof, remains unpaid for ten (10) days after it is due, then the Board may authorize the
filing of a notice of lien with the Hamilton County Recorder's Office (all in accordance
with applicable law) for all or any part of the unpaid balance of that Assessment, together
with interest and collection costs, including attorneys' fees. The certificate shall contain a
description of the Residential Lot which the lien encumbers, the name of the Owner or
Owners of that Residential Lot, and the amount of the unpaid portion of the Assessment.
The certificate may be signed by the President of the Association or its designated
representative. Upon the filing of the certificate, the subject Residential Lot shall be
encumbered by a continuing lien in favor of the Association. The Assessment lien shall
remain valid for a period of five (5) years from the date such certificate is duly filed, unless
the lien is released earlier or satisfied in the same manner provided by the law of the State
of Indiana for the release and satisfaction of mortgages on real property, or until the lien
is discharged by the final judgment or order of any court having jurisdiction.
6. Subordination of Lien. The lien of the Assessments provided for herein shall
be subject and subordinate to the lien of any duly executed first mortgage on a Residential
Lot recorded prior to the date on which such lien of the Association is perfected by the
recording of a notice of lien, and any holder of such first mortgage which comes into
possession of a Residential Lot pursuant to the remedies provided in the mortgage,
foreclosure of the mortgage, or deed or assignment in lieu of foreclosure, and any
purchaser at a foreclosure sale, shall take the property free of any claims for unpaid
Assessments against the mortgaged Residential Lot which became due and payable prior,
in the case of foreclosure, to the date of the sale, and, in all other cases, to the date legal
title vested in the successor Owner.
7. Contested Lien. Any Owner or Owners who believe that an Assessment
chargeable to that Owner or Owner's Residential Lot, and for which a notice of lien has
been filed by the Association has been improperly charged against that Residential Lot,
may bring an action in the Hamilton County Circuit Court for the discharge of that lien
and/or for a declaratory judgment that such Assessment was unlawful. The filing of such
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action shall not be grounds for an offset or to withhold payment. In any such action, if it
is finally determined that all or a portion of the Assessment has been improperly charged
to that Residential Lot, the Court shall make such order as is just, which may provide for
a discharge of record of all or a portion of that lien and a refund of an Assessment or portion
thereof determined to be unlawful.
8. Estonoel Certificate. The Board shall, within a reasonable time following
receipt of a written request and for a reasonable charge, furnish a certificate signed by the
President or other designated representative of the Association, setting forth whether the
Assessments on a specified Residential Lot have been paid. This certificate shall be
conclusive evidence of payment of any Assessment therein stated to have been paid.
9. Vote on Association Matters: Use of Common Elements. If any Assessment,
or portion thereof, remains unpaid for more than six (6) months after it becomes due, then
the delinquent Owner's voting rights upon Association matters shall be suspended until such
Assessment is paid. If any Assessment, or portion thereof, remains unpaid for more than
thirty (30) days after it becomes due, then the delinquent Owner's privileges to use the
Common Elements owned by the Association, except for necessary ingress and egress to and
from that Owner's Residential Lot, shall be suspended until such Assessment is paid.
Article X. MAINTENANCE
A. Maintenance of Common Elements by Association. Subject only to budgetary
limitations and the right of the Board to exercise reasonable business judgment, the Association
shall maintain and keep in good repair the Common Elements and all portions thereof not
maintained by the utility company or the local governmental authorities, including, but not limited
to, those Improvements on Block "A", C.A. #1-1, C.A. #1-2, and C.A. #1-3, respectively, as identified on
the Section 1 Plat. This maintenance shall include, without limitation, maintenance, repair, and
replacement of all Improvements constituting a part of the Common Elements owned by the
Association or otherwise maintained by the Association, in good, clean, attractive, and sanitary
condition, order and repair, including, but not limited to any common mailbox bank(s) and any
common amenities, including a clubhouse and/or swimming pool, if any. Further, the Association
may, in its discretion and to the extent determined by the Board, choose to maintain property that
it does not own, the maintenance of which would, in the opinion of the Board, benefit the
Community. The Association shall maintain an adequate reserve fund for the periodic
maintenance, repair and replacement of the improvements required to be maintained by the
Association.
B. Lawn Mowing and Snow Removal on Residential Lots. Because of the unique sizes
and configurations of the Residential Lots, the Association, from and after the time that a
Residential Lot with a Dwelling constructed thereon has been conveyed to a bona fide residential
home purchaser, will provide lawn mowing and fertilization services for the lawns located on a
Residential Lot that are not located within an enclosed or partially enclosed courtyard area on a
Residential Lot. In addition, the Association, from and after the time that a Residential Lot with a
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Dwelling constructed thereon has been conveyed to a bona fide residential home purchaser, will
provide snow removal services for the driveways and sidewalks located on that Residential Lot
(but not the service walk connecting the driveway to the front porch, stoop or courtyard or located
within an enclosed or partially enclosed courtyard); provided that the Association shall not be
responsible for any ice mitigation or removal of ice from any driveway or sidewalk located on any
Residential Lot. All such services will be provided at such frequency and by such vendors as the
Board determines in its sole, absolute and unfettered discretion and the cost thereof will be a
Common Expense. All other lawn maintenance activities not to be performed by the Association
on each Residential Lot, including, but not limited to, watering and irrigation of lawns, shall be
the responsibility of the Owners of the Residential Lot, unless the Association, in its discretion,
chooses to assume those responsibilities.
C. Landscape Maintenance on Residential Lots. From and after the time that a
Residential Lot with a Dwelling constructed thereon has been conveyed to a bona fide residential
home purchaser, the Association will be responsible for (i) seasonal weeding of the landscape beds
located in front of a Dwelling on a Residential Lot and not within the enclosed or partially enclosed
courtyard area, (ii) maintenance of the trees and shrubs on a Residential Lot that are not located
within the enclosed or partially enclosed courtyard area on a Residential Lot, and (iii) seasonal
mulching of the landscape beds located in front of a Dwelling on the Residential Lot and that are
not located within the enclosed or partially enclosed courtyard area on a Residential Lot. All such
services will be provided at such frequency and by such vendors as the Board determines in its
sole, absolute and unfettered discretion and the cost thereof will be a Common Expense. The
Owner shall be responsible for all other maintenance of landscaping and beds on that Owner's
Residential Lot including, but not limited to, the watering and irrigation of the same. If an Owner
of a Residential Lot desires to change the plantings originally planted by Declarant or the initial
builder of the Dwelling on the Residential Lot as part of the landscaping, add new plantings in the
front landscape beds or add additional trees or shrubs, such Residential Lot Owner must secure
approval from the Design Review Committee prior to effecting any such change.
D. Maintenance by Owner. Notwithstanding the landscaping and lawn maintenance
responsibilities and snow removal services outlined in Sections (B) and (C) of this Article X, and
subject to the other provisions of this Section D, each Owner of a Residential Lot shall repair,
replace, and maintain in good order and safe and sanitary condition, at that Owner's expense, that
Owner's Residential Lot, and all portions of, Improvements to, structures on, and, equipment and
components used in connection with, that Owner's Residential Lot, except to the extent the
maintenance responsibility is otherwise expressly assumed by the Association pursuant to the
provisions of this Declaration or by a governmental authority or is expressly the responsibility of
another Owner. Each Owner shall be responsible for and shall promptly furnish all necessary
materials and perform or cause to be performed at that Owner's expense all maintenance, repairs
and replacements of Improvements (including, specifically, and without limitation, all buildings,
the Dwelling, driveways and landscaping) on that Residential Lot that are not to be maintained by
the Association; provided that in the case of Improvements within a Courtyard Easement, the
Owner benefitted by the Courtyard Easement shall be responsible for the repair, maintenance and
replacement of the same. Each Owner shall maintain those portions of that Owner's Residential
Lot that are adjacent to any portion of the Common Elements in accordance with the Rules and the
30
requirements set forth in this Declaration.
E. Riaht of Association to Repair Lot. If any Owner fails to maintain that Owner's Lot
or Improvements thereon in the manner required herein, and if the Board determines that any
maintenance of that Lot is necessary to ensure public safety, to permit reasonable use or enjoyment
of the Common Elements by Owners, to prevent damage to or destruction of any other part of the
Common Elements or to comply with the Rules or the terms of this Declaration, then the Board
may authorize its employees or agents to enter the Lot at any reasonable time to complete the
necessary maintenance and the Board may levy an Individual Lot Assessment for all reasonable
expenses incurred.
F. Damage to Common Elements B• Owner or Occupant. If any portion of the
Common Elements is damaged by any Owner or Occupant, or that Person's family, guests, or
invitees, then the Board may levy an Individual Residential Lot Assessment against such Owner
for the cost of repairing or replacing the damaged property. The Association shall be entitled to
enter a Lot to repair or maintain any Common Elements adjacent to such Lot.
Article XI. MISCELLANEOUS
A. Term. The provisions hereof shall bind and run with the land for a term of forty
(40) years from and after the date that this Declaration is filed for recording with the Recorder's
Office of Hamilton County, Indiana, and thereafter shall automatically renew forever for
successive periods of ten (10) years each, unless earlier terminated with the consent of Members
exercising not less than one hundred percent (100%) of the voting power of all Members and the
consent of all holders of first mortgage liens on Residential Lots. In addition to the foregoing, this
Declaration may not be amended so as to eliminate the Association's responsibility to own, repair
and/or maintain Common Elements in the Community or to change or eliminate the requirement
and obligation of the Residential Lot Owners to be Members of and pay Assessments to the
Association, without the prior consent of Members exercising not less than one hundred percent
(100%) of the voting power of all Members and the consent of all holders of first mortgage liens
on Residential Lots, which amendment would be deemed to be dissolving the plan of governance
for the Association, as set forth in the Indiana HOA Act.
B. Enforcement, Waiver. The provisions of this Declaration and the provisions of the
other Association Governing Documents may be enforced by any proceeding at law or in equity
by Declarant, any Owner, the Association, the Board, the Design Review Committee, and each of
their respective heirs, successors and assigns, against any Person(s) violating, or attempting to
violate, any covenant, restriction, Rule or the provisions of the other Association Governing
Documents, to restrain and/or to enjoin any violation, to obtain a decree for specific performance
as to removal of any nonconforming Improvement, and to recover all damages, costs of
enforcement and any other costs incurred (including, without limitation, reasonable attorneys' fees)
in connection with any violation. Failure of Declarant, the Association, the Board, the Design
Review Committee, or any Owner to enforce any provision of this Declaration, the Association
Governing Documents or the Rules in any manner shall not constitute a waiver of any right to
enforce any violation of such provision. By accepting a deed to a Lot, each Owner is deemed to
31
waive the defenses of laches and statute of limitations in connection with the enforcement by the
Association of the provisions hereof, the Rules, or any of the other Association Governing
Documents.
C. Amendments.
1. Amendments by Declarant. Until the Turnover Date, Declarant may, in its
sole and absolute discretion, unilaterally amend the provisions hereof at any time and from
time -to -time, without the consent of any other Owners or the Association. Any such
amendment may modify the covenants, conditions, restrictions and easements set forth
herein or may impose covenants, conditions, restrictions and easements in addition to those
set forth herein including, without limitation, restrictions on use and covenants to pay
additional charges with respect to the maintenance and improvement of any property in the
Community. After the Turnover Date, Declarant may unilaterally amend the provisions
hereof, without the consent of any other Owners, if such amendment is: (i) necessary to
bring any provision hereof into compliance with any applicable governmental statute, rule,
regulation or judicial order, including, without limitation, the Indiana HOA Act; (ii)
necessary to enable any reputable title insurance company to issue title insurance coverage
on the Lots; (iii) necessary to conform to the requirements of the United States Federal
Housing Administration, the Federal National Mortgage Association, the Federal Home
Loan Mortgage Corporation or the Veterans Administration; or (iv) necessary to correct
clerical errors; provided, however, any such amendment shall not materially adversely
affect the title to any Lot unless the Owner or Owners thereof have consented to such
amendment in writing.
Before or after the Turnover Date, Declarant shall have the right and power, but
neither the duty nor the obligation, in its sole and unfettered discretion, to subject all or
any part of the Additional Property to the provisions of this Declaration at any time and
from time to time by executing and recording with the Recorder's Office of Hamilton
County, Indiana, an amendment or supplement to this Declaration or a supplemental
declaration specifying that such Additional Property is part of the Community. Such an
amendment or supplemental declaration shall not require the joinder or signature of the
Association, other Owners, mortgagees, or any other Person. In addition, such
supplemental declarations or amendments or supplements to this Declaration may contain
such supplementary, additional, different, new, varied, revised or amended provisions as
may be necessary or appropriate, as determined by Declarant, to reflect and address the
different character or intended development of any such Additional Property.
2 Amendments by the Association. Except for the amendments to this
Declaration which are described in Article XI(C)(1), thisDeclaration may be amended or
modified only with the approval of Owners holding not less than seventy-five percent
(75%) of the voting power of all Owners in the Association; provided, however, and
notwithstanding the foregoing, prior to the Turnover Date the consent of Declarant shall
be required for any such amendment or modification, which consent may be granted,
withheld, conditioned, or delayed in Declarant's sole and absolute discretion. Such
32
approval by the Owners to amend this Declaration pursuant to this Article XI(C)(2) shall
be evidenced by (a) the vote of the Owners at a meeting duly called for the purpose of
considering the amendment, or (b) a written instrument signed by such Owners. Any
amendment to this Declaration adopted with the aforesaid consent shall be executed with
the same formalities as to execution as observed in this Declaration by the President and
the Secretary of the Association, and shall contain their certifications that the amendment
was duly adopted in accordance with the requirements of this Paragraph. Any amendment
so adopted and executed shall be effective upon the filing of the same with the Recorder's
Office of Hamilton County, Indiana.
3. Amendments by the Board. After the Turnover Date, the Board may
unilaterally amend the provisions hereof, without the consent of any other Owners, if such
amendment is: (i) necessary to bring any provision hereof into compliance with any
applicable governmental statute, rule, regulation or judicial order; (ii) necessary to enable
any reputable title insurance company to issue title insurance coverage on the Lots; (iii)
necessary to conform to the requirements of the United States Federal Housing
Administration, the Federal National Mortgage Association, the Federal Home Loan
Mortgage Corporation or the Veterans Administration; or (iv) necessary to correct errors;
provided, however, any such amendment shall not materially adversely affect the title to
any Lot unless the Owner or Owners thereof have consented to such amendment in
writing.
No amendment made pursuant to the provisions of this Article XI, Section C may remove,
revoke, or modify any right or privilege of Declarant without the written consent of Declarant or
the assignee of such right or privilege.
D. Declarant's Rights to Complete Development. Declarant shall have the right to:
(1) complete the development, construction, promotion, marketing, sale, resale and leasing of
properties; (2) construct or alter Improvements on any property owned by Declarant; (3)maintain
model homes, offices for construction, sales or leasing purposes, storage areas, construction yards
or similar facilities on any property owned by Declarant or the Association; or (4) post signs
incidental to the development, construction, promotion, marketing, sale and leasing of property
within the Property. Further, Declarant or its assignee shall have the right of ingress and egress
through all streets, alleys, paths, walkways and easements located in the Property for any purpose
whatsoever, including, but not limited to, purposes related to the construction, maintenance and
operation of Improvements. Nothing contained in this Declaration shall limit the rights of
Declarant or require Declarant or its assignee to obtain approval to: (i) excavate, cut, fill or grade
any property owned by Declarant, or (ii) construct, alter, remodel, demolish or replace any
Improvements on any Common Elements or any property owned by Declarant as a construction
office, model home or real estate sales or leasing office in connection with the sale of any property;
or (iii) require Declarant to seek or obtain the approval of the Association or the Design Review
Committee for any such activity or Improvement on any Common Elements or any property owned
by Declarant. Nothing in this Section shall limit or impair the reserved rights of Declarant as
elsewhere provided in this Declaration.
33
E. Declarant's Rights to Re -plat Declarant's Property. Declarant reserves the right, at
any time and from time to time, to amend, alter or re -plat any plat or development plan and to
amend any zoning ordinance which affects all or any portion of the Property; provided, however,
that only real property owned by Declarant and Owners consenting to such amendment, alteration
or re -platting shall be the subject of any such amendment, alteration or re -platting. The Association
and each Owner whose Lot is not altered by such amendment, alteration or re -platting, for
themselves and their successors and assigns, hereby consents to and approves any such
amendment, alteration or re -platting and shall be deemed to have joined in the same.
F. Mortgagee ee Rights. A holder or insurer of a first mortgage upon any Residential Lot,
upon written request to the Board (which request shall state the name and address of such holder
or insurer and a description of the Residential Lot) shall be entitled to timely written notice of:
1. any proposed amendment of this Declaration;
2 any proposed termination of the Association; and
3. any default under this Declaration which gives rise to a cause of action by
the Association against the Owner of the Residential Lot subject to the mortgage of such
holder or insurer, where the default has not been cured in 60 days.
Each holder and insurer of a first mortgage on any Residential Lot shall be entitled, upon request
and at such mortgagee's expense, to inspect the books and records of the Association during
normal business hours. The holder or insurer of a first mortgage on a Residential Lot is not required
by the Declaration to collect Assessments.
G. Severability. If any Article, Section, paragraph, sentence, clause or word in this
Declaration is held by a court of competent jurisdiction to be in conflict with any law or is
unenforceable, then the requirements of such law shall prevail and the conflicting provision or
language shall be deemed void in such circumstance; provided that the remaining provisions or
language of this Declaration shall continue in full force and effect.
H. Mutuali . All restrictions, conditions and covenants contained herein are made for
the direct, mutual, and reciprocal benefit of the Declarant, the Association, and the present and
future owners of Lots in the Community, and each part thereof, and their respective personal
representatives, heirs, successors, and assigns; the provisions hereof shall create mutual equitable
servitudes upon the property submitted to these restrictions and each part thereof in favor of each
other part thereof; and any property referred to herein as benefited hereby; the provisions hereof
shall create reciprocal rights and obligations between the respective owners of all such property
and privity of contract and estate between all owners thereof; and the provisions hereof shall, as to
the owner of any such property and those Owners' respective heirs, personal representatives,
successors and assigns, operate as covenants running with the land for the benefit of all such
property and the Owners thereof.
I. Captions. The caption of each Article, Section and paragraph of this Declaration is
34
inserted only as a matter of reference and does not define, limit or describe the scope or intent of
the provisions of this Declaration.
J. Notices. Notices, demands or other communications to an Owner shall be given in
writing, by personal delivery or at the Lot, if a Residence has been constructed on such Lot, or by
depositing such notice in the United States Mail, first class, postage prepaid, to the address of the
Owner of the Lot as shown by the records of the Association, or as otherwise designated in writing
by the Owner. Any demand, notice or other communication or action given or taken hereunder or
by one of the joint Owners of a Lot shall be deCmed to be given, taken, or received by all such
joint Owners.
K. Exhibits. The exhibits hereto are part of this Declaration as if set forth in full herein.
L. Construction. In interpreting words and phrases herein, unless the context shall
otherwise provide or require, the singular shall include the plural, the plural shall include the
singular, and the use of any gender shall include all genders. Any rule of construction to the effect
that any ambiguities are to be resolved against the party who drafted the document shall not be
utilized in interpreting this Declaration and the exhibits hereto.
[SIGNATURE AND NOTARY PAGE TO FOLLOW]
35
IN TESTIMONY WHEREOF, the Declarant has caused the execution of this Declaration
as of the date first above written.
DECLARANT:
EPCON CARMEL, LLC,
an Indiana limited liability company
$Y
Paul Munoz, kand Development Manager
n
STATE OF, 4 � i � /1 �'► )
COUNTY OF SS: �lYnr
Before me, a Notary Public in and for said County and State, personally appeared Paul Munoz, who being
first duly sworn by me upon his/her oath, acknowledged execution of the foregoing, stated that he/she is the Land
Development Manager of Epcon Carmel, LLC, an Indiana liability company, that he/she is duly authorized to
execute the foregoing on its behalf, and who having been duly sworn stated that the representations therein are true.
WITNESS my hand and Notarial Seal this Pq day of k'V IyI� 21.
DEHRA ZAPP
Seat
Notary Public - State of Indiana
Hancock County,
My Commission. Expires Mar 6, 2024
No ublic
This instrument was prepared by Samuel E. Swafford, Esq., Faegre Drinker Biddle & Reath, 600 East 96th
Street, Suite 600, Indianapolis, Indiana 46240.
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. Samuel E. Swafford, Esq.
36
EXHIBIT A
OUR71 A RDS OF CARMg_
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